Gaines v. Matesanz

• Decision Date: 22 July 2003
• Docket Number: No. CIV.A.98-12092-RGS.,CIV.A.98-12092-RGS.
• Citation: 272 F.Supp.2d 121
• Parties: Raymond GAINES v. James MATESANZ
• Court: U.S. District Court — District of Massachusetts

272 F.Supp.2d 121

Raymond GAINES v. James MATESANZ

No. CIV.A.98-12092-RGS.

United States District Court, D. Massachusetts.

July 22, 2003.

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Maxine Sushelsky, Cambridge, MA, Pro se.

Cathryn A. Neaves, Attorney General's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

STEARNS, District Judge.

I agree with Magistrate Judge Dein's analysis, and her ultimate conclusion that despite an obvious slip of the tongue, the reasonable doubt charge taken as a whole did not violate petitioner's due process rights.¹ I also agree that petitioner's remaining complaints about the judge's charge are without constitutional merit. The Magistrate Judge identifies the constitutional test for a challenge based on the sufficiency of the evidence, and fully and accurately explains why petitioner is not entitled to relief. Finally, I agree with the Magistrate Judge that petitioner's appellate counsel was not ineffective. Indeed, to have pursued on appeal the inconsistent argument that petitioner argues should have been advanced would have better lent itself to a claim of ineffectiveness than the reasonable tactical choice counsel made in pursuing the claim of misidentification.

ORDER

For the foregoing reasons, the Recommendation is ADOPTED, the petition is DENIED, and the case is DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION REGARDING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

Petitioner, Raymond Gaines ("Petitioner"), a state prisoner serving two life sentences for armed robbery and first degree murder, challenges the constitutionality of his conviction in this habeas corpus petition. Petitioner alleges errors in the trial court's jury instructions and claims ineffective assistance of counsel. His petition has been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons detailed herein, this court recommends that even though the decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), should be applied retroactively to this case, the Petition for Writ of Habeas Corpus should be DENIED.

II. STATEMENT OF FACTS¹

Procedural Background

In May of 1975, Petitioner was indicted for murder in the first degree and armed robbery. See Commonwealth v. Funderberg, 374 Mass. 577, 579, 373 N.E.2d 963, 964 (1978). Petitioner's court-appointed counsel withdrew from the case on May 21, 1976. Id. New counsel was appointed the same day and trial was scheduled for June 9, 1976. Id. at 579, 373 N.E.2d at 964-65. New counsel's motions for a continuance, filed before the June 9, 1976 trial and renewed on June 9, 1976 and thereafter, were denied. Id. at 579-80, 373 N.E.2d at 965.

On June 18, 1976, a Massachusetts jury found Petitioner guilty of first degree murder and armed robbery. R.A. Ex. 1 at A.8. Petitioner's motion for a new trial was denied on April 4, 1977. Id. at A.17. The Massachusetts Supreme Judicial Court ("SJC") affirmed Petitioner's conviction on both counts on March 6, 1978. Commonwealth v. Funderberg, 374 Mass. at 578, 373 N.E.2d at 964.

Nearly twenty years later, on April 25, 1995, Petitioner moved pro se both for a new trial and appointment of counsel. See Report and Recommendation Regarding Respondent's Motion to Dismiss (Docket # 38) at 2. On June 13, 1995, a Superior Court judge denied the motion for a new trial. Id. In response, Petitioner filed a pro se application to the SJC for leave to appeal and renewed his motion for appointment of counsel. Id. Counsel was appointed and filed supplemental memoranda. Id. On October 20, 1997, a gatekeeper justice of the SJC denied further review of Petitioner's claim, concluding that Petitioner's claims lacked merit and did not raise any new or substantial questions, as required under Mass. Gen. Laws ch. 278, § 33E. Id. at 2, 16-17.

Petitioner filed the current two count petition for a writ of habeas corpus on September 28, 1997. Id. at 3. Respondent, James Matesanz ("Respondent"), Superintendent of the Bay State Correctional Center, moved to dismiss, claiming that Petitioner's claims were procedurally defaulted and that Petitioner had failed to exhaust his state remedies. Id. at 3-4. On July 10, 2001, District Judge Stearns denied Respondent's motion to dismiss, adopting the Report and Recommendation of Magistrate Judge Neiman. See District Court Order (Docket # 42). The court found that Petitioner had fairly presented all of his claims to the state system, thereby exhausting his state remedies. See Report and Recommendation (Docket # 38) at 14. The court further concluded that the SJC gatekeeper's denial of the second motion for a new trial was based on the merits of the case which removed any procedural bar. Report and Recommendation at 16-17; District Court Order at 2.

Underlying Facts

The following facts, taken from the SJC's decision in Commonwealth v. Funderberg, are entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); see also Coombs v. Maine, 202 F.3d 14, 18 (1st Cir.2000).

At approximately 4:00 p.m. on Tuesday, December 10, 1974, Petitioner and two other defendants, Anderson and Funderburg, entered a shoe repair store in Roxbury Massachusetts. Commonwealth v. Funderberg, 374 Mass. at 578, 373 N.E.2d at 964. Petitioner took money from the cash register, which the store owner's fifteen-year-old son was tending at the time. Id. Both Anderson and Funderburg were carrying guns and one of the men fatally shot the store owner before the three men backed out of the store. Id.²

The three men ran to an apartment in a nearby housing project, which was used as a "shooting gallery" by heroin users, sometime after 4:00 p.m. Id. Funderburg, with a gun in his belt, said, "When we get ready to do something and you get in the line of fire, you get hurt, too." Id. One of the men asked, "How much money did we get?" The answer was $120. Id. at 578-79, 373 N.E.2d at 964. Then one man instructed the others to "go back in the back room to do what we intended to do." Id. at 579, 373 N.E.2d at 964.

Gaines, Anderson and Funderburg were in the back room when the police knocked on the door to the apartment, were admitted, and entered the apartment. Id. The police left when the proprietor of the "shooting gallery" asked for a search warrant. Id. The proprietor testified that several days later "Funderburg was telling Anderson that he thought he'd hit him (the victim), you know, and Anderson said he don't think his shot hit him." Id.

In May of 1975, police obtained arrest warrants for Petitioner and three police officers traveled to Des Moines, Iowa, where Gaines was in custody, to bring him back to Boston. Id. Petitioner was given Miranda warnings by one officer, yet, on the return flight he told another officer that since that officer had not warned him of his rights, he could tell that officer the story. He told the officer that "he was there when it happened, when it went down. He told [the officer] that the boy would never be able to recognize him because he pulled his hat down on his forehead and he took out his teeth." Id.

At trial, Petitioner disputed the identification made by the victim's son, and presented alibi testimony that he had left Boston on a bus for Iowa on December 8, 1974 and had telephoned his aunt upon arriving in Iowa on December 10, 1974. Id.

III. STANDARD OF REVIEW

Although Petitioner's conviction occurred in 1976, because his federal habeas corpus petition was not filed until after April 1, 1996, it is governed by the federal habeas statute, 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The statute provides:

(d) an application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted with any respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim -

(1) 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....

28 U.S.C. § 2254(d).

A review under 28 U.S.C. § 2254 first requires a federal court to determine whether there was "clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court conviction became final. Williams v. Taylor, 529 U.S. 362, 379-80, 120 S.Ct. 1495, 1505-06, 146 L.Ed.2d 389 (2000). Relief may be granted if the state court decision was "contrary to, or involved an unreasonable application of" such clearly established Federal law. Id. at 384, 120 S.Ct. at 1508. Basically, the AEDPA "directs federal courts to attend to every state-court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state-court judge on the content of federal law. If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody ... violates the Constitution, that independent judgment should prevail." Id. at 389, 120 S.Ct. at 1511. Finally, where, as here, the state court (in its consideration of Petitioner's Motion for New Trial) does not explain its decision in any detail, "an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000), and cases cited. Cf. Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001) (where state court did not decide the federal issue presented, federal court reviewed the issue de novo).

IV. ANALYSIS³

The Petitioner has raised two grounds in support of his habeas...