Evicci v. Maloney, Civil Action No. 99-11561-DPW (D. Mass. 6/4/2003)
| Decision Date | 04 June 2003 |
| Docket Number | Civil Action No. 99-11561-DPW. |
| Parties | WILFRED H. EVICCI, Petitioner, v. MICHAEL T. MALONEY, Commissioner of Corrections, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Petitioner Wilfred H. Evicci seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his Massachusetts state court convictions for acts of sexual assault. He is serving a sentence of life imprisonment. On remand from the Court of Appeals, the petitioner raises two separate types of claim under the Sixth Amendment: (1) violations of the Confrontation Clause, arising from limitations on cross examination designed to show the victim was a prostitute who used drugs and (2) ineffective assistance of counsel, arising from the failure adequately to present the defense theory that the sexual encounter did not involve rape and was, in any event, consensual.
Evicci was convicted in December 1996 of aggravated rape, kidnaping, and assault and battery. During his trial, the Commonwealth presented evidence showing that he had accosted the victim in the early morning hours of September 15, 1995, and forced her into his van where he performed oral sex on her, engaged in instances of vaginal penetration with his penis, and ultimately thrust his penis into her mouth. The victim testified that as she pulled her mouth away, he ejaculated onto the seat of the van.
Shortly thereafter, she escaped from the van, shouting for help and claiming that she had been raped. Two residents of the condominium complex in whose parking lot the van was parked brought the victim, who was only partially dressed, to their apartment. While the victim was escaping, Evicci told a private security guard who approached the scene that the victim was a prostitute and requested handling the situation without the police.
Police officers, however, arrived on the scene, questioned the victim who identified Evicci as the assailant, and brought her to the hospital where medical personnel examined her. Their examination revealed bruises and cuts around her mouth, neck, and forearms including a puncture wound to her lip. A cervical exam was performed to collect evidence for a rape kit. A crime lab investigator collected sperm cells from the van as well as blood and seminal fluid from the victim's clothing.
Defense counsel suggested in his opening that the evidence would simply show "there was a scuffle between Mr. Evicci and [the victim] outside the van after they had consensually engaged in sex because Mr. Evicci didn't give her enough money." The victim, defense counsel suggested, having decided In his closing, arguing that the victim "is not a naive person as the Commonwealth stated to you," defense counsel focused on alleged inconsistencies in the victim's several recountings of the incident. Moreover, he contended, "[t]he physical evidence does not match up with what she says."
The Massachusetts Appeals Court affirmed Evicci's conviction on February 2, 1999 in an unpublished opinion. Commonwealth v. Evicci, 46 Mass. App. Ct. 1114 (1999) (table). Further appellate review was denied by the Supreme Judicial Court on April 27, 1999, Commonwealth v. Evicci, 429 Mass. 1105 (1999) (table).
Evicci has since filed a number of state post-conviction motions, all of which were denied by the Superior Court. His pro se appeal from denial of three of the post-conviction motions was rejected by the Massachusetts Appeals Court in an unpublished opinion issued June 7, 2001 after the instant habeas corpus petition was filed in this court. Commonwealth v. Evicci, 51 Mass. App. Ct. 1113 (2001) (table). A second pro se post-conviction challenge was rejected by the Appeals Court in an unpublished opinion dated January 23, 2002. 53 Mass. App. Ct. 1113 (2002). It does not appear that applications for further appellate review by the SJC were perfected with respect to either of these pro se post-conviction challenges.
Evicci filed this habeas corpus petition on July 12, 1999. On March 20, 2000, I dismissed the petition for failure fully to exhaust state court remedies regarding any federal dimension to his claims. On appeal of that ruling, the First Circuit issued a per curiam opinion finding three of the four asserted grounds to have been waived and remanding for further proceedings the fourth ground, which it found to have been exhausted at least in some form concerning Sixth Amendment violations. Evicci v. Comm'r of Corrections, 226 F.3d 26 (1st Cir. 2000). In remanding, the Court noted that the petitioner "has not fully fleshed out his claims." Id. at 27. The Court, however, recognized a Sixth Amendment ground in two parts: one concerning the Confrontation Clause and the other concerning ineffectiveness of counsel.1 The First Circuit observed that it
would not hesitate to deny [petitioner a right to appeal] if we were sure that the applicant had no reasonable basis for claiming that he had been denied a constitutional right. However, in this instance that branch of his claim based on the alleged limitations on counsel's opportunity to explore drug use might or might not have substance but, so far as it is explained, it is not frivolous on its face. If the inadequate assistance claim stood alone, we might say that the applicant failed to provide us enough information to make even a colorable showing, but, out of an abundance of caution, we think the district court ought to address both claims since the matter must go back in any event.
For proceedings on remand, I appointed Professor David Rossman of Boston University Law School to represent the petitioner. The parties then briefed both the Confrontation Clause and the ineffectiveness claims on the merits. The respondent did not on remand accept the invitation of the Court of Appeals, id., to raise further procedural objections to petitioner's claims.
I find petitioner raises two independent, fully exhausted claims under the Sixth Amendment's Confrontation Clause. The first pertains to the judge's rulings barring the defense from inquiring about the character of the area where the victim encountered the petitioner, particularly as it relates to the prevalence of prostitution. The second claim challenges limitations imposed on the defense's ability to ask about the victim's drug use. Both claims were rejected by the state courts on direct appeal. I find no basis to disturb those determinations.2
Congress altered the standard of federal habeas corpus review of state court decisions in 1996 when it passed the Antiterrorism and Effective Death Penalty Act (AEDPA). Williams v. Taylor, 529 U.S. 362, 404 (2000). AEDPA restricts the district court's power to grant the writ of habeas corpus with respect to claims previously adjudicated by the state courts. Section 2254(d)(1) provides that the writ can be granted only if one of two conditions exists.
An application for writ of habeas corpus . . . shall not be granted with respect to any claim . . . unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
Accordingly, in Williams, the Supreme Court identified two distinct questions to determine whether a writ of habeas corpus is warranted under 28 U.S.C. § 2254(d)(1). See Williams, 529 U.S. at 412-13; see also McCambridge v. Hall, 303 F.3d 24, 35-36 (1st Cir. 2002).
The first asks whether the decision was "contrary to" established federal law, i.e., whether the law applied was "substantially different from the relevant precedent of Court." Williams, 529 U.S. at 405. This prong is limited to situations in which the state court applied a rule that is contrary to the governing law set forth in the cases or where the state court faced facts that were materially indistinguishable from a decision of the Supreme Court but came to a different result. Id. at 405-06.
The second asks whether "the state court identifie[d] the correct governing legal principle from this Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. This may occur
`if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,' or `if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'
Kibbe v. DuBois, 269 F.3d 26, 36 (1st Cir. 2001) (quoting Williams, 529 U.S. at 408). In defining "unreasonable application," the Court indicated it was choosing a middle path by rejecting (1) as excessively deferential a subjective test asking whether there exists a "reasonable jurist" who would decide the case as the state court did and (2) as overly strict a test asking whether the underlying application of federal law was objectively correct. Williams, 529 U.S. at 409-11. Instead, the federal habeas court must determine whether the application by the state court was an "objectively reasonable" application of clearly established federal law. Id. at 409.3 The First Circuit has interpreted this standard to mean that "`if it is a close question whether the state decision is in error, then the state decision cannot be an unreasonable application.'" L'Abbe v. DiPaolo, 311 F.3d 93, 98 (1st Cir. 2002) (quoting McCambridge, 303 F.3d at 36). While it is still the sole domain of the federal courts to say what the law is, 28 U.S.C. § 2254(d)(1)...
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