Herbert v. Dickhaut
| Decision Date | 21 July 2011 |
| Docket Number | Civil Action No. 06-10036-NG |
| Parties | ROGER HERBERT, Petitioner, v. THOMAS DICKHAUT, Superintendent, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
GERTNER, D.J.
Petitioner Roger Herbert ("Herbert") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. Herbert was convicted of armed robbery and felony murder for his involvement in a highly publicized January 1990 crime, the murder of a Northeastern University student, Mark Belmore ("Belmore"). Both Belmore and Herbert were 19 years old.
It was a troubling, troubling crime on many levels. The incident had, as the trial judge noted, "a certain element of racism." Trial Tr. vol. 8, 7:20-23, Mar. 8, 1991. Herbert and the group of people he was with were black. Belmore was white. The prosecutor contended that racial animus was the motive for the crime. One of the people with Herbert was quoted as saying, "Let's get the first white person we see." Trial Tr. vol. 2, 53:17-18, Mar. 1, 1991. The defense tried to argue that the crime was an "outgrowth" of "their racial animosity that is so prevalent in this society." Trial Tr. vol. 6, 50:22-23, Mar. 6, 1991. (The judge sustained the prosecutor's objection to the comment.) The stabbing of the victim, he argued, was an impulsive act motivated after Belmore grabbed Herbert's jacket.
While the petitioner raises a number of issues, only two have been preserved. Herbert argues that the jury selection process was racially biased. Eight black people were in the jury pool. Two were excused for cause, leaving six. After two of the six had been challenged by theCommonwealth, Herbert's counsel approached the judge inquiring if the government planned to challenge the third, and if the prosecutor so did, counsel argued that the challenge violated Batson v. Kentucky, 476 U.S. 79 (1986).
The government indicated that he would challenge the juror. The court asked for an explanation. The Commonwealth pointed to two things: the juror's hesitancy in answering the questions and the fact that the juror lived near the scene of the offense. The defense demonstrated that white jurors who were not challenged were also hesitant in their answers, and/or pointed generally to white jurors who worked or attended school near the crime scene. Nevertheless, the trial judge allowed the government's challenge. Three black jurors remained.
The trial judge then directed the black juror who was sitting in the foreperson's seat, to exchange seats with a white juror whom he selected as the foreperson. The selection of the white juror in that seat arguably protected her from becoming an alternate. (Alternates were chosen by lot from the panel excluding the foreperson.) The remaining black jurors on the panel were not so protected. The result was troubling -- only one black juror in the deliberating jury and two black alternates.
Herbert also challenges the admissibility of his confession. He claims that the statement was taken after he invoked his right to counsel, not just once, but twice. The Commonwealth contests Herbert's account of invoking his Miranda rights. What is clear is that following 2.5 hours of questioning, and an unrecorded statement, Herbert made a tape-recorded confession in the presence of two detectives. The tape-recording, moreover, reflected Miranda warnings. The only other documentation that might have reflected such warnings -- the booking slip from his earlier arrest -- did not.
The trial court denied Herbert's motion to suppress this confession. On March 8, 1991, the jury convicted Herbert of armed robbery and of first-degree murder under two independent theories: felony murder and extreme atrocity or cruelty. Trial Tr. vol. 8, 4:4-6:16, Mar. 8, 1991. He was sentenced to life imprisonment without parole on the first-degree murder conviction1 and thirty-five to forty-five years on the armed robbery conviction to be served concurrently with the life sentence. Id. at 21:23-22:16.
Herbert appealed; the Supreme Judicial Court ("SJC") of Massachusetts affirmed his conviction. See Commonwealth v. Herbert, 421 Mass. 307 (1995). Proceeding pro se, Herbert filed a motion for a new trial that raised six new claims, all of which were denied by the trial court. Herbert then filed an application to a single "gatekeeper" justice of the SJC, as required by the review process set forth in Mass. Gen. Laws ch. 278, § 33E, requesting review by the full SJC of the trial court's denial of his motion for a new trial. That application was also denied.2
In his Memorandum, Herbert argued two claims: the suppression claim and the juror exclusion claim. He also argued that the Antiterrorism and Effective Death Penalty Act ("AEDPA") is unconstitutional and, therefore, his claims should be reviewed under pre-AEDPA standards. A hearing was held on Herbert's petition.
This memorandum addresses the following: 1) whether Herbert's suppression claim has merit; 2) whether Herbert's juror exclusion claim has merit; 3) whether those claims Herbert raised in his petition but did not argue in his memorandum of law are waived; and 4) Herbert's challenge to the federal habeas corpus statute.
To the victim's family, the prospect of rehashing the facts of the crime or worse, witnessing the release of the defendant should this petition be granted, is surely excruciating. To the defendant, the possibility that he has been imprisoned for over ten years without having had a trial that meets constitutional standards, is horrifying. But while I have very serious, serious, concerns about the fairness of the jury selection, I am obliged to deny the claim. I sit in this case not as a trial judge in the first instance. I sit as a federal judge reviewing a state court conviction, sadly many, many years after the trial, and after the law has consistently narrowed the scope of my review.
Three factors determine the outcome of this case. First, I am bound by AEDPA, a statute passed in 1996, which by its terms dramatically cabins my review of state proceedings. This is especially the case after recent Supreme Court decisions.3 Second, those restrictions apply with special force where I am reviewing state fact-findings, rather than issues of law. Third, First Circuit law concerning Batson could not be less favorable to petitioner's claims. To date, theFirst Circuit has never affirmed a district court decision granting a writ of habeas corpus with a Batson claim.
Thus, what I may have done were I in the shoes of the state judge, especially with respect to the Batson claim, is irrelevant to these proceedings.
The following statement of facts summarizes the facts found by the SJC.
On January 14, 1990, Herbert, who was nineteen, was with his brother, Ronald Herbert ("Ronald"), Larry Wayne Robinson ("Robinson"), Larry Villanueva ("Villanueva"), and Harrison Futrell ("Futrell") when Robinson suggested that they "beat someone down." Herbert, 421 Mass. at 308; Trial Tr. vol. 4, 10:18, 85:6-15, 112:4, Mar. 4, 1991. They had come from a 9:50 p.m. movie and were walking down Columbus Avenue near the Ruggles subway stop. Herbert, 421 Mass. at 308. Herbert had a knife, as did "at least two other[s]," Robinson and Villanueva. Id.; Trial Tr. vol. 3, 210:9-212:3, Mar. 2, 1991. Someone saw Mark Belmore, who was also nineteen and a student at Northeastern University. Herbert, 421 Mass. at 308. As the jurors were told, Herbert is a black man and Belmore was a white man. See, e.g., Trial Tr. vol. 1, 26:10-12, Feb. 28, 1991.
Herbert's group chased and started beating Belmore who cried out for help and for someone to call the police. Herbert, 421 Mass. at 308; Trial Tr. vol. 3, 14:19. One witness looked out her apartment window and saw a group of black males punching and kicking a white male. She then saw what she thought was the shimmer of a knife and what could be stabbing motions by two different people who were attacking Belmore. Trial Tr. vol. 3, 26:14-44:13.Futrell testified that he saw Herbert stab, and Robinson and Villanueva punch and kick, Belmore. Trial Tr. vol. 4, 123:16-128:24, 130:24-131:3. Belmore had five stab wounds as well as injuries consistent with having been punched and cut on the face and body, including defensive wounds on the hands. Trial Tr. vol. 5, 9:20-21:22, Mar. 5, 1991. Belmore's wallet was taken. Herbert, 421 Mass. at 308.
Futrell went to the police on Thursday, January 18, 1990, Trial Tr. vol. 4, 152:19-161:24, and, by the next day, he indicated that he had witnessed, but had not been involved in the attack on Belmore and he incriminated Herbert. Trial Tr. vol. 4, 24:19-137:9, 160:13-161:24. A few days later, the police arrested and interrogated Herbert. Trial Tr. vol. 5, 68:16-73:22, 82:23105:10. In a confession challenged by the defense, Herbert admitted to participating in the attack and told the police where the knife was located. Herbert, 421 Mass. at 309.
At trial, Herbert's statement to the police was played for the jury. Herbert, 421 Mass. at 309; Trial Tr. vol. 5, 105:15-107:3. In addition, Detective Bruce Holloway testified about Herbert's statement, highlighting his statement, quoting Robinson: "We're going to get the next white person that we see." Trial Tr. vol. 5, 85:5-87:2.
Another trial witness testified that Herbert told him that Belmore had called him (Herbert) a "nigger," and that he had gone crazy and stabbed him. Trial Tr. vol. 3, 230:22-232:4, 265:14-267:1. Later, the witness repeated that Herbert said he went Id. at 266:22. Futrell testified he heard Herbert yell, Trial Tr. vol. 4, 125:9-10. After which Futrell saw Herbert pull out a knife and stab Belmore. Id. at 126:13-20. Herbert then ran away. Id. at 128:24-130:14. There was no testimony that Herbert took anything from Belmore.
As Futrell and Herbert were running away, Futrell saw that Belmore was standing and moving. Id. at 130:17-23....
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