Gomes v. Brady

• Decision Date: 06 May 2009
• Docket Number: No. 08-1810.,08-1810.
• Citation: 564 F.3d 532
• Parties: Carlos Luis GOMES, Petitioner, Appellant, v. Superintendent Bernard BRADY, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

564 F.3d 532

Carlos Luis GOMES, Petitioner, Appellant, v. Superintendent Bernard BRADY, Respondent, Appellee.

No. 08-1810.

United States Court of Appeals, First Circuit.

Heard February 4, 2009.

Decided May 6, 2009.

Leslie W. O'Brien, by Appointment of the Court, for appellant.

Randall E. Ravitz, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before BOUDIN, STAHL, and LIPEZ, Circuit Judges.

STAHL, Circuit Judge.

Carlos Luis Gomes was convicted in Massachusetts Superior Court of first degree murder. After exhausting his state court remedies, Gomes sought a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in federal district court, alleging that a prosecutorial comment during summation violated his Fifth Amendment rights and that his trial counsel was constitutionally ineffective. The district court denied the petition, and we affirm.

I.

We relay the facts as recounted by the Massachusetts Supreme Judicial Court ("SJC"), which affirmed Gomes's conviction. Commonwealth v. Gomes, 443 Mass. 502, 822 N.E.2d 720 (2005); see 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct."). At approximately 12:30 a.m. on October 30, 1999, Gomes and his brother Moses Rivera (also known as Tan) arrived at a Fall River, Massachusetts apartment shared by four women, Nancy Cardoza, Melissa Latour, Holly Latour, and Nicole Soares. Gomes and his brother brought a bottle of vodka and an orange drink and socialized with Cardoza and Melissa.

Around 2:30 a.m., Soares, who at the time was fourteen years old, returned home. At the trial, she testified that she went to the apartment bathroom where she saw Tan talking on a cell phone and Gomes, who appeared to be intoxicated, bagging cocaine.¹ When she asked what the brothers were doing, Tan told her to "mind [her] fucking business."

Herminio Gouveia, the victim, first arrived around 2:15 a.m., looking for a person not in the apartment. When he returned within the hour, Soares, who was familiar with him, invited him into the apartment. Gomes and Tan emerged from the bathroom, and Gouveia asked Gomes if he could have some vodka, a request that Gomes denied. Cardoza then announced that everyone should leave, but Tan requested one additional drink to which Cardoza agreed. Tan then asked Gouveia if he wanted a drink, and Gouveia, who could not hear the question over the loud music playing in the apartment, followed Tan into the kitchen for clarity. When Tan asked again whether Gouveia would like a drink, Soares advised Gouveia to decline, which he did.²

Gomes became upset, suggesting that Gouveia had disrespected his brother, and a physical altercation ensued. At some point, Gomes pulled out a gun, and the fight moved from the kitchen to the living room and finally to Cardoza's bedroom, where Gouveia asked Gomes, "What are you going to do with that? ... Let's go outside. Take this outside." Cardoza threw a pair of cast iron candlesticks at Gomes, imploring him to put away the gun; Melissa screamed and similarly begged Gomes to put down the gun; and Tan and Ricky Lopes, who had arrived around the time the altercation began, told Gomes to put away the gun. Meanwhile, Gomes continuously repeated, "Fuck this nigger," and finally, shot Gouveia in the forehead. Gouveia died from the single gunshot.

After the shooting, Gomes and Tan fled to the Maine home of Andrew Tibbets, a friend, where Gomes told Tibbets about the killing and his disposal of the gun he used, a .38 revolver. On November 8, 1999, police officers in York, Pennsylvania apprehended Gomes. During his booking, Gomes told an officer he was glad that he had been found because being on the run was hard. He also stated that he had not meant to kill anyone. Gomes's fingerprints were found on the vodka bottle and glasses at the apartment. A single .38 caliber bullet was removed from Gouveia's head, and a medical examiner opined that the victim had been shot from a distance of between six inches and three feet.

At trial, Soares testified that she had seen Gomes bagging cocaine, information which the trial judge previously had precluded, but Gomes's attorney did not object. However, when Soares later testified that she saw Gomes put cocaine into the glass offered to Gouveia, the defense counsel objected. The judge sustained the objection and instructed the jury that "[t]his witness has no competency at all to tell if it's coke or what it is, and you are to totally disregard that. Totally, absolutely. That's guesswork."

Gomes, who did not testify, called to the stand two law enforcement officers and a private investigator in an attempt to elicit inconsistencies and call into question the credibility of some of the state witnesses. During his closing argument, the prosecutor stated,

You heard from the witnesses. I'll talk a little more about them in detail as we go along, but the only one in this courtroom that I've heard say that it wasn't the defendant, the only person who took the stand to say that was [the defense counsel], because you heard from Nancy Cardoza, you heard from Nicole Soares, you heard from Melissa Latour, you heard from Anthony Tibbets, it was him. And they're all telling you the same thing. This is a fight over a drink.

Gomes's trial counsel objected on the ground that the prosecutor "misspoke" in suggesting that the defense counsel had taken the stand to testify. The court later instructed the jury members that they should not draw any inferences against Gomes because he had not testified and that statements of the lawyers were not evidence.

The jury subsequently found Gomes guilty of murder in the first degree, and the Superior Court denied his motion for a new trial. Gomes appealed the decision to the SJC which affirmed the judgment and denied the motion for a new trial. Gomes's petition for habeas relief was denied by the federal district court on May 4, 2006.

II.

Gomes's appeal raises two issues. First, he argues that the prosecutor's comment during summation violated his Fifth Amendment rights. Second, he contends that he was deprived of his Sixth Amendment rights because his trial counsel did not object when Soares testified that she saw Gomes bagging cocaine in the apartment bathroom. When evaluating the district court's denial of habeas corpus relief, we review its factual findings for clear error and mixed questions of law and fact de novo. Malone v. Clarke, 536 F.3d 54, 62 (1st Cir.2008).

The SJC previously adjudicated both of Gomes's federal claims and applied standards of review as favorable to Gomes as the relevant federal standards. See Obershaw v. Lanman, 453 F.3d 56, 65-66 (1st Cir.2006). Thus, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, Gomes "must demonstrate that the state court's resolution of his ... claim[s] `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,'" Malone, 536 F.3d at 62 (quoting 28 U.S.C. § 2254(d)(1)).

A state court determination is "contrary to" clearly established law if the court "applies a rule that contradicts the governing law set forth" by the Supreme Court or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Meanwhile, a state court unreasonably applies clearly established federal law if it "correctly identifies the governing legal principles, but (i) applies those principles to the facts of the case in an objectively unreasonable manner; (ii) unreasonably extends clearly established legal principles to a new context where they should not apply; or (iii) unreasonably refuses to extend established principles to a new context where they should apply." Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir.2007). Because we conclude that the SJC's resolution of both issues raised by Gomes was neither contrary to nor an unreasonable application of clearly established federal law, we affirm the district court's denial of habeas corpus.

A. Fifth Amendment Claim

The Fifth Amendment, which provides that a criminal defendant has the right not to testify at his trial, U.S. Const. amend. V, "forbids ... comment by the prosecution on the accused's silence," Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); see id. at 614, 85 S.Ct. 1229 ("What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another."); United States v. Roberts, 119 F.3d 1006, 1014 (1st Cir.1997) ("It is axiomatic that the defendant's right against self-incrimination, as protected by the Fifth Amendment, forbids the prosecution from commenting on an accused's failure to take the stand and testify on his own behalf."). The rule set forth in Griffin therefore protects against comments, even unintentional ones, which invite the jury to draw adverse inferences about the defendant's choice not to testify. United States v. Akinola, 985 F.2d 1105, 1111 (1st Cir. 1993); United States v. Mietus, 237 F.3d 866, 871 (7th Cir.2001).

To decide whether Gomes is entitled to relief, we engage in a two-pronged analysis of the prosecutor's statement. First, we determine whether the comment offended the Fifth Amendment by insinuating improperly that Gomes's failure to testify was evidence of guilt. Griffin, 380 U.S. at 615, 85 S.Ct. 1229. Second, we ascertain whether the comment had a "substantial and injurious effect or influence in determining the jury's verdict" such that reversal is warranted. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting ...