Hardy v. Maloney

• Decision Date: 12 February 2018
• Docket Number: Civil Action No. 01-cv-10794-PBS
• Parties: JEFFREY HARDY, Petitioner, v. MICHAEL MALONEY, Respondent.
• Court: U.S. District Court — District of Massachusetts

JEFFREY HARDY, Petitioner,
v.
MICHAEL MALONEY, Respondent.

Civil Action No. 01-cv-10794-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 12, 2018

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

Boal, M.J.

On May 9, 2001, Jeffrey Hardy, who is currently serving a life sentence at a Massachusetts correctional facility, petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Docket No. 1 ("Petition").¹ Hardy raised nine claims in his Petition, seven of which remain before this Court. Respondent Michael Maloney opposes the Petition. Docket No. 67. For the reasons set forth below, this Court recommends that the District Judge DENY the Petition.²

I. PROCEDURAL HISTORY

Hardy was charged with murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty, and armed robbery. Supplemental Answer ("S.A.") at 1-2. On

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March 30, 1995, after a two-week trial, a Middlesex County jury convicted Hardy of first degree murder.³ S.A. at 2, 6. Hardy filed a direct appeal. He also filed a motion for a new trial on August 12, 1997, which the Massachusetts Superior Court denied on December 14, 1998. S.A. at 7. In January 1999, he appealed that denial. Id. On May 9, 2000, the Supreme Judicial Court ("SJC") denied relief under G.L. c. 278 § 33E⁴ and affirmed both Hardy's conviction and the denial of his motion for a new trial. Commonwealth v. Hardy, 431 Mass. 387 (2000) ("Hardy I").

On May 9, 2001, Hardy, represented by counsel, filed the Petition asserting the following grounds for relief:

(1) the prosecutor's comment "misstating the evidence that the Supreme Judicial Court warned an immunized witness that he 'better not lie'" violated his Sixth and Fourteenth Amendment rights ("Ground One") (Pet. Add. at 1-14);

(2) the prosecutor improperly vouched for the credibility of an immunized witness, in violation of his Sixth and Fourteenth Amendment rights ("Ground Two") (Id. at 14-17);

(3) the trial judge erred in allowing the Commonwealth to introduce evidence of co-defendants' statements to witness Steven Murphy in violation of Bruton v. United States, 391 U.S. 123 (1968) ("Ground Three") (Pet. Add. at 17-33);

(4) the trial judge violated Hardy's Sixth and Fourteenth Amendment rights by denying Hardy's motion for a mistrial based on two spectators yelling, "Jeff Hardy is a

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murderer!" in the presence of the jury during their view of the crime scene ("Ground Four") (Id. at 34-38);

(5) the trial judge violated Hardy's Sixth and Fourteenth Amendment rights by denying his request for an instruction on his theory of defense ("Ground Five") (Id. at 38-45);

(6) the prosecutor violated Hardy's Sixth and Fourteenth Amendment rights when he called attention to Hardy's failure to produce third party culprit evidence ("Ground Six") (Id. at 45-47);

(7) the trial judge violated Hardy's Sixth and Fourteenth Amendment rights by denying his motion for a new trial and holding that he had no right to have the jury polled ("Ground Seven") (Id. at 47-50);

(8) the Commonwealth's late disclosure of Hardy's alleged statement to the victim, "Now maybe you'll shut the fuck up", violated Hardy's Sixth and Fourteenth Amendment rights ("Ground Eight") (Id. at 50-51); and

(9) the trial judge violated Hardy's Fifth, Sixth and Fourteenth Amendment rights by instructing the jury on the issue of consciousness of guilt based on the prosecutor's use of Hardy's pre-arrest statements denying involvement in a drug transaction ("Ground Nine") (Id. at 51-53).

On September 5, 2003, Respondent moved to dismiss the Petition. Docket No. 10. On May 18, 2004, the District Court denied the motion and stayed the case, noting that six of the nine claims were not exhausted. Docket No. 19. On September 18, 2007, Respondent requested that the stay be lifted and the District Court issue an order to show cause why the case should not be dismissed for failure to prosecute. Docket No. 24. On October 1, 2007, the District Court issued such an order, and, in response, Hardy stated that his new counsel was in the process of reviewing the record. Docket No. 28 at 2. He asked the Court to continue the stay. Id.

On July 28, 2008, the District Court stayed the case, but ordered Hardy to file a timeline for exhausting claims in state court within thirty days or risk the Court lifting the stay. On August 29, 2008, Hardy stated that he would file a state court motion for a new trial by November 1, 2008, Docket No. 31, but was later granted a one-month extension of that deadline.

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Docket No. 32.

On November 26, 2008, Hardy filed a second motion for a new trial in the Superior Court, which was denied on February 18, 2010. S.A. at 7-8. In March 2010, Hardy appealed. Id. at 8. His petition for review was granted by a single justice of the SJC on June 11, 2010.⁵ Id. The SJC ultimately affirmed the denial of Hardy's motion for a new trial on March 15, 2013. S.A. at 8; Commonwealth v. Hardy, 464 Mass. 660, 671 (2013) ("Hardy II"). Hardy filed a petition for writ of certiorari with the Supreme Court, which was denied on October 7, 2013. S.A. at 14; Hardy v. Massachusetts, 134 S.Ct. 248 (2013).

On October 9, 2014, Hardy moved to amend the Petition. Docket No. 37. This Court recommended that the District Judge deny the motion, Docket No. 45, and on September 2, 2015, the District Judge adopted that report and recommendation without objection. Docket No. 47.

On May 30, 2016, Hardy voluntarily moved to dismiss Grounds Seven and Eight of the Petition, conceding that they were not exhausted. Docket No. 61. He also filed a second memorandum in support of his Petition, Docket No. 62, which Respondent opposed on November 18, 2016. Docket No. 67. On December 9, 2016, this Court recommended that the motion to dismiss Grounds Seven and Eight be granted. Docket No. 68. On January 6, 2017, the District Judge adopted this Court's report and recommendation without objection. Docket No. 69.

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II. FACTUAL BACKGROUND

The SJC found the following facts:⁶

The victim's body was discovered in a park in Medford on April 28, 1994, at about 5:30 A.M. The victim's body had a total of seventy-nine stab wounds to the head, face, neck, chest, arms, legs, and back, as well as a gunshot wound to the face. The medical examiner testified that it was possible the victim had been alive during the infliction of all the injuries.

The Commonwealth's primary witness at trial was Christopher Rogovich, who had been granted immunity by a single justice of this court. Rogovich testified as follows. On the day of the murder, Rogovich, the defendant, Gerald Sullivan, Richard Allison, and the victim, among others, spent the afternoon playing basketball and drinking beer. Sometime during the afternoon, Sullivan and the defendant left to buy some marijuana treated with PCP, or "angel dust." Sullivan and the victim smoked some of the drug that afternoon, and again in the evening, while the group was at a friend's house. The effects of the drug were not very strong, and the victim talked about how the drug was "fake," that Sullivan and the defendant had "got beat," and were "chumps" and "idiots." The victim persisted with similar comments throughout the day, and seemed to upset the defendant. While the group was at the friend's house, the defendant left for approximately fifteen minutes, and when he returned he showed Rogovich a gun that he had tucked into his pants.

Rogovich further testified that the group subsequently went to a local bar. After staying about one hour, the defendant said, "Let's get out of here, let's go for a ride." The defendant did not want the victim to go along with them, but the victim caught up to the defendant, Rogovich, Allison, and Sullivan as they got into the defendant's car. The defendant dropped off Rogovich and the victim a short distance from a Dunkin' Donuts and whispered to Rogovich, "Try to lose [the victim]." Eventually, all five returned to the car, but the defendant wanted the victim to go home, and the two argued about it. At one point, the victim got out of the car, calling the defendant and Sullivan "fuckin' punks" as he did so. The defendant yelled back, "Do you want to come ... ? Get in the fuckin' car." The victim got into the car and the defendant sped off. After driving for a while, the defendant pulled the car over, and the defendant, Sullivan, and Allison got out of the car, walked a few feet away, and spoke together. When they got back into the car, the defendant said, "We got to go meet the dealer." The defendant drove to a nearby park, directed everyone to a certain area, and told them where to stand, saying that the drug dealer "should be coming this way." When Rogovich turned

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around, Sullivan was pointing a gun at the victim's head. Rogovich heard three clicking noises and then saw the defendant grab the gun. Rogovich had started to move away, and when he turned around to look, he saw the defendant shoot the victim and heard the victim say, "Hardy shot me in the mouth." The defendant replied, "Now you'll shut your fuckin' mouth." When Rogovich turned back again, he saw the defendant, Allison, and Sullivan on top of the victim making stabbing motions, and he heard Sullivan say, "Get his wallet." Rogovich returned to the defendant's car where he was joined shortly by Sullivan, who was carrying a bloody knife. Sullivan told Rogovich to get in the car, drove him to a nearby house, and called for a taxi for him. The next day, the defendant stopped by Rogovich's house and told him, "Don't say nothing, they'll get you ten years down the line for this...."

In addition to Rogovich, the Commonwealth's other chief witness was Steven Murphy. Murphy testified that around 9:30 P.M. on the night of the murder, the defendant and Sullivan came to his house to retrieve a gun, and that the defendant said they needed it because

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