Guerrero v. Ryan, CIVIL ACTION NO. 1:13–cv–10079–DPW

• Decision Date: 24 July 2015
• Docket Number: CIVIL ACTION NO. 1:13–cv–10079–DPW
• Citation: 115 F.Supp.3d 195
• Parties: Miguel Guerrero, Petitioner, v. Kelly Ryan, Respondent.
• Court: U.S. District Court — District of Massachusetts

115 F.Supp.3d 195

Miguel Guerrero, Petitioner,

v.Kelly Ryan, Respondent.

CIVIL ACTION NO. 1:13–cv–10079–DPW

United States District Court, D. Massachusetts.

Signed July 24, 2015

Miguel Guerrero, Shirley, MA, pro se.

Anne Marie Thomas, Todd M. Blume, Office of the Attorney General, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

PetitionerMiguel Guerrero, a state prisoner convicted of trafficking over twenty-eight grams of cocaine and of a controlled substance violation within one hundred feet of a public park, seeks a writ of habeas corpus under 28 U.S.C. § 2254 after unsuccessfully appealing his convictions in Massachusetts state court.He contends that an array of alleged constitutional errors, individually and collectively, justifies his release from state custody.Finding that six of the grounds asserted are procedurally defaulted and the remaining two are without merit, I will deny the petition for writ of habeas corpus.

I.BACKGROUND

The facts that the jury could have found in support of its verdict as well as the procedural history of the case are as follows:

A.Indictment and Pretrial Proceedings

On June 21, 1999, Guerrero was indicted for selling over twenty-eight grams of cocaine to an undercover police officer within one hundred feet of a public park and for possession of a falsely made license to operate a motor vehicle.Guerrero v. MacEachern , 2011 WL 1598717, at *1(D.Mass.Apr. 27, 2011).¹Defaulting on March, 13, 2000, Guerrero was a fugitive for almost seven years.On February 26, 2007, he was apprehended and brought to court.

Approximately three weeks later, on March 13, 2007, the Commonwealth informed Guerrero's defense counsel that the white powdery substance purchased from Guerrero had been destroyed by the Narcotics Inspection Unit in August 2005 on the basis of a state trooper's mistaken belief that Guerrero's case had been concluded.

B.Trial and Sentencing

Guerrero's trial began on October 9, 2007, in Suffolk Superior Court.At the start of trial, defense counsel immediately moved to dismiss the charges on account of the Commonwealth's destruction of the evidence in question: the forty-five bags of alleged cocaine that Guerrero was said to have sold to an undercover police officer.The trial judge denied the motion.

The jury heard testimony that on March 31, 1999, and April 6, 1999, an undercover Massachusetts State Police Trooper, Marion Fletcher, purchased twenty and twenty-five bags of a white powdery substance, respectively, from Guerrero and his accomplice William Figueroa.Fletcher testified that both transactions occurred approximately fifteen feet away from a park.Melissa O'Meara, a forensic chemist for the Massachusetts State Police Crime Lab, testified that she analyzed the contents of the purchased bags and determined that the twenty bags of white powder from March 31, 1999, contained 32 grams of 70% pure cocaine.With respect to the twenty-five bags purchased on April 6, 1999, O'Meara testified that they contained 38.42 grams of 68% pure cocaine.

On October 12, 2007, the jury convicted Guerrero of one count of trafficking in over twenty-eight grams of cocaine, one count of a controlled substance violation within one hundred feet of a public park, and possession of a falsely made license to operate a motor vehicle.Guerrero was sentenced to five years and one day for the trafficking conviction, a consecutive term of two and a half years and one day for the public park conviction, and a concurrent term of two and a half years and one day for the falsely made license conviction.

C. Post–Trial Proceedings

On October 19, 2007, Guerrero filed a timely notice of appeal of all his convictions, except for the falsely made license conviction.He also filed a motion for a new trial in the Superior Court on the grounds that "newly discovered evidence," in the form of the opinion of a handwriting expert that the chemist's initials on the cocaine testing computer charts were forged, cast doubt on the justice of his convictions and, in the alternative, that his counsel was ineffective for failing to procure a handwriting analyst in the trial.On October 30, 2008, Guerrero's motion for a new trial was denied.On November 5, 2008, Guerrero appealed his convictions and the denial of his new trial motion to the Massachusetts Appeals Court.

Guerrero raised eight issues on appeal: 1) that the trial judge erroneously denied his motion to dismiss based upon the destruction of the evidence, 2) that the admission of a photocopy of a certificate of drug analysis violated the best evidence rule, 3) that the trial judge improperly questioned a witness and advised the Commonwealth as to how to lay a proper foundation, 4) that the evidence was insufficient to support a conviction for distributing a controlled substance within one hundred feet of a public park, 5) that the trial judge erroneously declined to give a jury instruction on missing evidence, 6) that the trial judge's response to a jury question was confusing and prejudicial, 7) that the trial judge erroneously denied his motion for a new trial based upon newly-discovered handwriting evidence and ineffective assistance of counsel, and 8) that the previously enumerated claims, if taken together, would justify a reversal of his conviction.The Massachusetts Appeals Court addressed each of the contentions on their merits, rejected each, and affirmed his convictions on February 18, 2010.SeeCommonwealth v. Guerrero,76 Mass.App.Ct. 1113, 922 N.E.2d 179(2010).

Following the Appeals Court's decision, Guerrero filed an application for leave to obtain further appellate review (an "ALOFAR") with the Massachusetts Supreme Judicial Court, claiming that the Appeal Court erred in its rejection of his eight claims.The Supreme Judicial Court denied further appellate review on March 31, 2010.Commonwealth v. Guerrero , 456 Mass. 1104, 925 N.E.2d 547(2010).Guerrero did not file a petition for certiorari with the United States Supreme Court.

On April 26, 2010, Guerrero filed his first federal petition for habeas corpus.Guerrero,2011 WL 1598717 at *1.He asserted eight grounds for relief: 1) that the destruction of evidence prior to trial violated the Due Process Clause in the Fourteenth Amendment of the United States Constitution, 2) that the admission of a photocopy of a certificate of drug analysis violated the Due Process Clause, 3) that the trial judge assumed the role of the prosecutor in violation of due process, 4) that the evidence was insufficient to support a conviction for distributing a controlled substance within one hundred feet of a public park, thereby violating due process, 5) that the trial judge's decision not to give a jury instruction on destroyed evidence violated due process, 6) that the trial judge's confusing response to a jury question violated the Due Process Clause, 7) that the denial of his motion for a new trial on the basis of handwriting evidence violated due process, and 8) that the cumulative effect of the above errors violated the Due Process Clause.Id. at *1–2.These grounds mirrored the grounds raised in the state proceedings, but were each framed in terms of federal constitutional rights.

The Respondent, Duane MacEachern, Superintendent of the Massachusetts Correctional Institution in Shirley, filed a motion to dismiss, contending that six of the eight claims in the petition were unexhausted because Guerrero had not pursued them in state court as federal constitutional claims.Id. at *1.Judge Casper granted the motion to dismiss, ruling that grounds two, three, five, six, seven and eight had not been exhausted.Id. at *4.Although many of the facts underlying the claims were the same as those made in state court, raising them in state court as matters of state law did not satisfy the exhaustion requirement.As Judge Casper observed, " ‘[b]oth the factual and legal underpinnings of [the petitioner's] federal claims' must be presented in the state proceedings."Id. at *2(quotingRashad v. Walsh,300 F.3d 27, 41(1st Cir.2002) ).While the ways in which a federal issue might be raised in state court are "myriad,"id.(quotingGoodrich v. Hall,448 F.3d 45, 48(1st Cir.2006) ), a petitioner must give the state courts a full opportunity to resolve any constitutional issues before reaching review in the federal courts.Id.

Although finding that Guerrero had exhausted ground one, a due process claim based on the destruction of evidence, and ground four, a due process claim based on the insufficiency of the evidence, Judge Casper held that the other grounds were not exhausted because Guerrero had failed to present the legal underpinning of those claims as federal constitutional claims in state court in any of the myriad acceptable ways.²Id.(citingGoodrich , 448 F.3d at 48 ).Since some of the grounds were exhausted and others were not, Guerrero's petition was a "mixed petition," and the petition could not go forward while retaining the unexhausted claims.SeeRhines v. Weber , 544 U.S. 269, 273–74, 125 S.Ct. 1528, 161 L.Ed.2d 440(2005).Judge Casper dismissed the petition without prejudice, allowing Guerrero to return to state court to present the unexhausted claims there.Id. at *3.

In response to Judge Casper's decision that the claims had not been exhausted, Guerrero filed a second motion for a new trial before the Massachusetts Superior Court on May 5, 2011.In it, he put forward eight grounds for a new trial, which are the same eight grounds he had previously asserted in his federal habeas corpus petition, framing each in terms of its violation of a federal constitutional right.A hearing was held in August 2011, and the Superior Court judge denied the motion.

Following the denial of his second motion for a new trial, Guerrero appealed again to the Massachusetts Appeals Court, asserting that his right to due process under the Fifth and Fourteen Amendments of the United States...