Ferrell v. Wall, C.A. No. 10–244–M.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
Writing for the CourtJOHN J. McCONNELL
Citation862 F.Supp.2d 88
PartiesJason FERRELL, Petitioner. v. Ashbel T. WALL, Respondent.
Docket NumberC.A. No. 10–244–M.
Decision Date25 May 2012

862 F.Supp.2d 88

Jason FERRELL, Petitioner.
v.
Ashbel T. WALL, Respondent.

C.A. No. 10–244–M.

United States District Court,
D. Rhode Island.

May 25, 2012.


[862 F.Supp.2d 93]


George J. West, One Turks Head Place, Providence, RI, for Petitioner.

Aaron L. Weisman, Attorney General's Office, Providence, RI, for Respondent.


MEMORANDUM AND ORDER

JOHN J. McCONNELL, JR., District Judge.

Before this Court is the “State of Rhode Island's Motion to Dismiss ‘Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody’ ” (the “Motion to Dismiss”). (ECF No. 10.) 1 The State asserted that the nine grounds for relief contained in the “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody” (the “Petition”) filed by Jason Ferrell were either procedurally defaulted or properly rejected by the R.I. Supreme Court. Id. Mr. Ferrell countered that dismissing the Petition now would be premature and inappropriate because he presents meritorious claims and triable issues

[862 F.Supp.2d 94]

that have not been procedurally defaulted. (ECF No. 21.)

This Court reviewed the briefing in this matter and heard oral argument. As explained below, the first three grounds for relief asserted by Mr. Ferrell in the Petition—Sixth Amendment, Compulsory Process Clause; Due Process, Insufficient Evidence; and Fifth Amendment, Double Jeopardy Clause—survive the Motion to Dismiss. As to the other six grounds for relief, the Motion to Dismiss is granted.

FACTS

This Court reviews the facts as described in the R.I. Supreme Court decision affirming Mr. Ferrell's conviction, “supplemented with other record facts consistent with the [R.I. Supreme Court's] findings.” Shuman v. Spencer, 636 F.3d 24, 27 (1st Cir.2011) (quoting Yeboah–Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir.2009)). Those facts are found in State v. Oliveira, 774 A.2d 893, 900–03 (R.I.2001), unless otherwise noted.

On the morning of December 18, 1995, John Carpenter and Lorenzo Evans were driving in a blue Chevy Nova in Providence, R.I. Mr. Carpenter was driving and Mr. Evans was in the passenger seat. When they were on Dexter Street, in Providence's west end, Mr. Evans heard what sounded like a gunshot followed by more noises. Mr. Evans saw a black Jeep Cherokee traveling at a high rate of speed turn onto Dexter Street. The Jeep began chasing Mr. Carpenter's Chevy and the occupants of the Jeep fired shots at Messrs. Carpenter and Evans. Mr. Carpenter pulled his car to the opposite side of the road at which point the gear shift stuck, and the vehicle stalled.2 Messrs. Evans and Carpenter jumped out of the car.

Mr. Carpenter fell on the sidewalk,3 while Mr. Evans landed in the road. Although the driver of the Jeep tried to run over Mr. Evans, he fled to the nearest sidewalk, hopped a fence, and ran down the side of a nearby home. While climbing over a second fence, Mr. Evans caught his jacket and pants on a picket. At that point, Mr. Evans looked up and saw two men wearing black and carrying automatic handguns get out of the Jeep. Mr. Evans saw the two men walk toward the sidewalk where Mr. Carpenter had fallen. Mr. Evans heard more gunshots. Mr. Carpenter was killed in a “brutal, gang-style murder.” 4

After Mr. Evans freed himself from the fence, he ran through yards to a nearby house and banged on the door but no one answered. Then he ran to the side of that house, looked into the street, and saw a white Ford Taurus with two occupants. Mr. Evans said that the person in the driver's seat was holding a “chrome object” in his hand that looked like a gun, and the person moved the object up and down. Mr. Evans ran, hid behind the house, and heard tires screech. When he left his hiding spot, the Taurus was gone.

Mr. Evans was stopped by the police, arrested, and taken to the police station, where he was questioned. Mr. Evans told the police that he was unable to identify the men who shot Mr. Carpenter and then he was released. The next day, however, Mr. Evans returned to the police station and identified Pedro Sanders, Gahil Oliveira, and Robert McKinney as the three occupants of the Jeep and identified Jason

[862 F.Supp.2d 95]

Ferrell and Jermaine Campbell as the two occupants of the Taurus.

The five men identified by Mr. Evans were indicted and tried in the R.I. Superior Court. At trial, the State's theory was that the murder of Mr. Carpenter and the assault on Mr. Evans were retribution for the murder of Wayne Baptista that had occurred three days earlier.5 On December 15, 1995—a day after Mr. Baptista's murder and two days before the murder and assault at issue—three of Mr. Baptista's closest friends (Messrs. Oliveira, McKinney and Ferrell) had Mr. Baptista's nickname, “Pearl,” a cross, the date of Mr. Baptista's death, and “RIP” tattooed on their right arms. Five months after events at issue, Mr. Evans was indicted for the December 15, 1995 murder of Wayne Baptista.6

TRAVEL1. Trial

On May 1, 1996, Messrs. Sanders, Oliveira, McKinney, Ferrell and Campbell were indicted together for the following four crimes: (i) first-degree murder of Mr. Carpenter; (ii) conspiracy to murder Mr. Carpenter; (iii) assault with intent to murder Mr. Evans; and (iv) conspiracy to assault with intent to murder Mr. Evans. State v. Oliveira, 774 A.2d 893, 902 (R.I.2001). Messrs. Oliveira, Sanders, Campbell, and Ferrell were tried together in the R.I. Superior Court in March and April of 1997; Mr. McKinney was tried at the same time, before the same trial justice, but before a separate jury. Id. at 902, n. 4. Messrs. Oliveira, Sanders, and McKinney were convicted of all four crimes. Id. at 903. Mr. Campbell was acquitted of murder and assault with intent to murder, but convicted of both conspiracies. Id. Mr. Ferrell was acquitted of murder, but convicted of assault with intent to murder and both conspiracies. Id. On June 25, 1997, Mr. Ferrell was sentenced to an aggregate term of forty years of imprisonment, twenty years for the assault with intent to murder and ten years for each of the two conspiracies. See Ferrell 2005, 889 A.2d at 182; R.I.Super. Ct.Crim. Dkt. Sheet Rep., Case ID P1–1196–1547B.

2. Rule 35 Motion

On October 21, 1997, Mr. Ferrell filed in the R.I. Superior Court a motion to reduce his sentence under Rule 35 of the R.I. Superior Court Rules of Criminal Procedure (“Rule 35”). Ferrell 2009, 971 A.2d at 620;Oliveira, 774 A.2d at 920 n. 26. The parties agree that Mr. Ferrell's Rule 35 motion was timely filed. See Ferrell 2009, 971 A.2d at 622.

3. Direct Appeal

Messrs. Ferrell, Sanders, Oliveira and McKinney appealed their convictions, while Mr. Campbell did not. Oliveira, 774 A.2d at 903. While the appeal was pending, Mr. Ferrell filed a “Motion to Remand Case for Consideration of Newly Discovered Evidence and Newly Available Evidence” (“Motion to Remand”). Ferrell 2005, 889 A.2d at 182. With this motion, Mr. Ferrell submitted a videotape of Mr. Evans recanting his trial testimony, “as well as several affidavits, reports and statements intended to buttress the trustworthiness of the videotape.” Id. On April 17, 2001, the Motion to Remand was denied. Id. On July 6, 2001, in State v. Oliveira, the R.I. Supreme Court 7 denied

[862 F.Supp.2d 96]

all of the direct appeals and affirmed the convictions of Messrs. Ferrell, Sanders, Oliveira, and McKinney. 774 A.2d at 893.

4. Second Rule 35 Motion

As discussed below, in the direct appeal, the R.I. Supreme Court mistakenly stated that Mr. Ferrell's Rule 35 motion was withdrawn and then indicated that it would not address the issue of whether the consecutive sentences for conspiracy placed Mr. Ferrell in double jeopardy until such a motion was filed. State v. Oliveira, 774 A.2d at 920 (emphasis added).

Shortly after the R.I. Supreme Court made this statement, Mr. Ferrell filed another Rule 35 motion. (ECF No. 21–1 at 7–8.) In 2009, the R.I. Supreme Court acknowledged its error and stated that Mr. Ferrell's first Rule 35 “motion to reduce his sentence was never withdrawn.” Ferrell 2009, 971 A.2d at 622.

5. First Post–Conviction Relief Application

On July 3, 2002, Mr. Ferrell filed in the R.I. Superior Court his first application for post-conviction relief pursuant to R.I. Gen. Laws § 10–9.1–1 et seq., seeking relief from his convictions on eight distinct grounds. (ECF No. 1–1.) 8 After a hearing that occupied five days, the motion justice granted Mr. Ferrell's post-conviction relief application and vacated his convictions and sentences. SeeFerrell 2005, 889 A.2d at 182–83. The motion justice's decision granting this post-conviction relief application, however, analyzed only the following two counts: Count I, newly discovered evidence—a videotape of Mr. Evans recanting his identification at trial of Mr. Ferrell—required that his convictions be vacated; and Count IV, ineffective assistance of counsel. Id.;Ferrell v. Wall, No. PM–02–3635, 2005 WL 373479 (R.I.Super. Feb. 2, 2005).9 The motion justice found Mr. Evans' recantation credible “when considered within the totality of the circumstances” and held that Mr. Ferrell's claim of ineffective assistance based on Rule 16 had merit, but his ineffective assistance claim based on double jeopardy did not. Ferrell v. Wall, 2005 WL 373479, at *1, *9.

The State appealed this decision to the R.I. Supreme Court. Ferrell 2005, 889 A.2d at 180, 183. The R.I. Supreme Court reversed the motion justice's grant of post-conviction relief and reinstated Mr. Ferrell's convictions. Id. at 180. Regarding the recantation evidence, the R.I. Supreme Court held that the motion justice had “insufficient evidence to properly determine the credibility of [Mr.] Evans' recantation;” the motion justice “committed clear error in finding [Mr. Evans'] recantation

[862 F.Supp.2d 97]

credible;” and the motion justice's admission of the recantation testimony was an abuse of discretion. Id. at 188, 190. On the ineffective assistance of counsel claim based on trial counsel's violation of Rule 16, the...

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3 practice notes
  • Ferrell v. Wall, No. 10–244–M.
    • United States
    • U.S. District Court — District of Rhode Island
    • January 18, 2013
    ...Jason Ferrell's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition). See Ferrell v. Wall, 862 F.Supp.2d 88 (D.R.I.2012) (Ferrell Federal ). In his Petition, Mr. Ferrell set forth nine grounds for relief. (ECF No. 1.) 1 This Court dismissed six o......
  • Evans v. United States, C.A. No. 19-279WES
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • July 2, 2019
    ...named Baptista. Id. at 893 n.2. Plaintiff was acquitted of the Baptista murder by a jury verdict returned in 1997. Ferrell v. Wall, 862 F. Supp. 2d 88, 95 n.6 (D.R.I. 2012). Possibly, Plaintiff has conflated the 1997 jury verdict with an alleged 1997 enactment of the General Assembly called......
  • Ferrell v. Wall, C.A. No. 10-244-M
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 18, 2013
    ...Jason Ferrell's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition). See Ferrell v. Wall, 862 F. Supp. 2d 88 (D.R.I. 2012) (Ferrell Federal). In his Petition, Mr. Ferrell set forth nine grounds for relief. (ECF No. 1.)1 This Court dismissed six ......
3 cases
  • Ferrell v. Wall, No. 10–244–M.
    • United States
    • U.S. District Court — District of Rhode Island
    • January 18, 2013
    ...Jason Ferrell's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition). See Ferrell v. Wall, 862 F.Supp.2d 88 (D.R.I.2012) (Ferrell Federal ). In his Petition, Mr. Ferrell set forth nine grounds for relief. (ECF No. 1.) 1 This Court dismissed six o......
  • Evans v. United States, C.A. No. 19-279WES
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • July 2, 2019
    ...named Baptista. Id. at 893 n.2. Plaintiff was acquitted of the Baptista murder by a jury verdict returned in 1997. Ferrell v. Wall, 862 F. Supp. 2d 88, 95 n.6 (D.R.I. 2012). Possibly, Plaintiff has conflated the 1997 jury verdict with an alleged 1997 enactment of the General Assembly called......
  • Ferrell v. Wall, C.A. No. 10-244-M
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 18, 2013
    ...Jason Ferrell's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition). See Ferrell v. Wall, 862 F. Supp. 2d 88 (D.R.I. 2012) (Ferrell Federal). In his Petition, Mr. Ferrell set forth nine grounds for relief. (ECF No. 1.)1 This Court dismissed six ......

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