Fryar v. Bissonnette

• Decision Date: 19 September 2000
• Docket Number: No. Civ.A. 98-30215-MAP.,Civ.A. 98-30215-MAP.
• Citation: 113 F.Supp.2d 175
• Parties: Charles FRYAR, Jr., Petitioner, v. Lynn BISSONNETTE, Respondent.
• Court: U.S. District Court — District of Massachusetts

113 F.Supp.2d 175

Charles FRYAR, Jr., Petitioner, v. Lynn BISSONNETTE, Respondent.

No. Civ.A. 98-30215-MAP.

United States District Court, D. Massachusetts.

September 19, 2000.

David P. Hoose, Katz, Sasson & Hoose, Springfield, MA, Harris Freeman, Greenfield, MA, for Charles Fryar, Jr., petitioner.

Kenneth E. Steinfield, Office of the Attorney General, Criminal Bureau, Boston, MA, Catherine E. Sullivan, Assistant Attorney General, Criminal Bureau, Boston, MA, for Lynn Bissonnette, Superintendent, North Central Correctional Center, respondent.

MEMORANDUM AND ORDER REGARDING PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING

PONSOR, District Judge.

I. INTRODUCTION

On January 25, 1994, petitioner Charles Fryar Jr. was convicted of second degree murder by a jury in Hampden County Superior Court, Springfield, Massachusetts, for the 1989 stabbing death of Eric Palmer.¹ On July 13, 1997, on direct appellate review, the Massachusetts Supreme Judicial Court (SJC) upheld the conviction against, inter alia, a challenge to the trial judge's instruction permitting certain out-of-court statements to be considered only for impeachment purposes and not as substantive evidence. See Commonwealth v. Fryar, 425 Mass. 237, 249-250, 680 N.E.2d 901 (1997).

In this habeas corpus proceeding, petitioner argues that the trial judge's limiting instruction violated his due process rights under Chambers v. Mississippi, 410 U.S. 284, 298-303, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, the Court held that the defendant was denied a fair trial when the trial judge excluded out-of-court statements — third party confessions — that were critical to the defense and that bore substantial assurances of trustworthiness. Chambers, 410 U.S. at 298-303, 93 S.Ct. 1038 (1973).

To support his Chambers claim petitioner has moved for an evidentiary hearing. This hearing, which petitioner claims he was denied in state court, would give him the opportunity to demonstrate the reliability of the out-of-court statements and the error committed by the state trial judge in limiting their effect. For the reasons set forth below, the petitioner's motion for an evidentiary hearing will be denied.

II. BACKGROUND

In the early morning hours of April 14, 1989, an altercation occurred between four African-American male youths and a group of young white men in downtown Springfield, Massachusetts. During the incident, a Springfield College student, Eric Palmer, was fatally stabbed. Petitioner Fryar was arrested at the scene and confessed to that stabbing. Both before and during the trial, however, he challenged the confession as a product of coercion by the Springfield Police Department.

Another young man present at the scene, but never charged, was Thomas Barklow. Both petitioner and Barklow were young African-American men, both had thin mustaches, and both were dressed in college warm-up jackets on the night of the stabbing. It was petitioner's defense at trial that Barklow had actually done the stabbing.

Prior to trial, Fryar's counsel obtained a statement from Jason Franklin, a young man Barklow befriended several months after the incident when Barklow began living with Franklin's family. Franklin's statement was to the effect that Barklow had admitted to him that he had stabbed Eric Palmer.

At trial, Barklow testified for the Commonwealth. He denied stabbing the victim or making any incriminating statements to Franklin. Later in the trial, petitioner called Franklin as a witness. He testified that in the fall of 1989, about five months after the stabbing incident, while Barklow was living with Franklin's family, Barklow had gotten into a fight during a basketball game with another youth named Terry Deforest. He further testified that after the fight, Barklow, while in their bedroom, took out a butterfly knife and stated that, "if he used it, it would not be the first time." Petition for Habeas Corpus, Docket No. 1 at 7. Franklin further testified that Barklow provided details about the killing of Eric Palmer and indicated that he, not the petitioner, stabbed Palmer — adding that "it was real quick and easy." Id.

After Franklin's testimony, the judge instructed the jury, over defense counsel's objections, that Barklow's alleged confession (as recounted by Franklin) could be considered only for impeachment purposes, as prior inconsistent statements tending to show Barklow's lack of credibility, but not as substantive evidence that Barklow actually committed the stabbing. The judge reasoned, in part, that the statements did not comply with the Commonwealth's version of the "declaration against interest" exception to the hearsay rule. This rule, as the SJC has interpreted it, states as follows:

An out of court statement made by a person that he, and not the defendant on trial, committed the crime is admissible [for substantive purposes] where: (1) the declarant's testimony is unavailable; (2) the statement tends so far to subject the declarant to criminal liability that a reasonable man would not have made the statement unless he believed it were true; and (3) the statement, if offered to exculpate the accused, is corroborated by circumstances clearly indicating its truthfulness.

Commonwealth v. Fryar, 425 Mass. 237, 249, 680 N.E.2d 901 (1997).

The record makes clear that the state trial judge's ruling derived from his concern about the trustworthiness of Franklin's testimony, particularly the fact that the evidence of Barklow's supposed confession had not come to light until almost five years after the incident. See Petitioner's Memorandum in Support, Docket No. 17 at 8 (quoting trial judge's sidebar comments from trial transcript).

The SJC affirmed the trial judge's ruling, concluding that the "declaration against interest" exception to the hearsay rule did not apply because the declarant Barklow was available and Franklin's testimony lacked external indicia of reliability. Id., at 250.

III. DISCUSSION

As a threshold matter, Respondent argues that Fryar's Motion for an Evidentiary Hearing must be denied because his counsel made inadequate efforts to obtain a hearing before the state court trial judge.

Title 28, Section 2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), controls whether petitioner may receive an evidentiary hearing on a constitutional claim — here, the Chambers issue — that was allegedly not developed in state court. It provides as follows:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

The Supreme Court has held that "[u]nder the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, ___, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000). In the usual case, the Court noted, diligence "will require ... that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner proscribed by state law." Id. at 1490. Moreover, "the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error." Id. at 1491.

If there has been no lack of diligence at the relevant state proceedings, then "the prisoner has `not failed to develop' the facts under § 2254(e)(2)'s opening clause, and he will be excused from showing compliance from the balance of the subsection's requirements." Id. In other words, if petitioner shows there has been no lack of diligence, he is not barred from receiving an evidentiary hearing during a habeas proceeding.

Respondent argues that petitioner is barred from receiving an evidentiary hearing because his efforts lacked the requisite diligence in state court. She contends that Fryar failed to file a motion for a new trial and request an evidentiary hearing in state court, under Rule 30 of the Massachusetts Rules of Criminal Procedure.²

Respondent's threshold argument is unpersuasive, for two reasons. First, while a motion for a new trial may technically be filed at any time, see MASS.R.CRIM.P. 30(b), the motion is usually intended to be a truly post-conviction remedy, "that is, it is not open to a defendant until the validity of the finding or verdict of his guilt is conclusively established by an appellate court if an appeal is taken." MASS.R.CRIM.P. 30(b) (Reporter's notes). Generally, the SJC has held that "`a motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law' on which a defendant has had his day in an appellate court." Commonwealth v. Watson, 409 Mass. 110, 112, 565 N.E.2d 408 (1991) (quoting Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973)). A trial judge does, in theory, have the discretion to hear Rule 30(b) motions seeking reconsideration of questions of law, but the SJC has recommended restricting the exercise of that power to "those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449, 399 N.E.2d 475 (1980). Where, as in this case, the trial judge has rejected the legal argument offered to justify the evidentiary proceeding, and where the judge's ruling has been...