Hodge v. Mendonsa

• Decision Date: 30 December 2013
• Docket Number: No. 13–1825.,13–1825.
• Citation: 739 F.3d 34
• Parties: Ivan HODGE, Petitioner, Appellee, v. Anthony MENDONSA, Superintendent, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

739 F.3d 34

Ivan HODGE, Petitioner, Appellee,

v.Anthony MENDONSA, Superintendent, Respondent, Appellant.

No. 13–1825.

United States Court of Appeals, First Circuit.

Dec. 30, 2013.

Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General of Massachusetts, and Thomas E. Bocian, Assistant Attorney General, Criminal Bureau, were on brief, for appellant.

Michael D. Cutler for appellee.

Before LYNCH, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.

LYNCH, Chief Judge.

Federal habeas petitioner Ivan Hodge was convicted, along with co-defendant O'Neil Francis, by a Massachusetts jury in March 2007 of the second-degree murder of Tacary Jones and another charge, stemming from a March 2005 shooting on an MBTA bus in Boston. Hodge's convictions were affirmed on appeal by the Massachusetts Appeals Court (“MAC”) in November 2010. Commonwealth v. Francis, 78 Mass.App.Ct. 1107, 936 N.E.2d 453 (2010) (unpublished table opinion). The Massachusetts Supreme Judicial Court (“SJC”) denied further review in April 2011. Commonwealth v. Francis, 459 Mass. 1110, 947 N.E.2d 42 (2011) (unpublished table opinion). Hodge is presently serving a life sentence for second-degree murder.

In June 2013, a federal district court granted Hodge's petition for a writ of habeas corpus under 28 U.S.C. § 2254. Hodge v. Mendonsa, No. 12–10676–FDS, 2013 WL 3070660, at *12 (D.Mass. June 14, 2013). By placing too much weight on the fact that the MAC opinion did not expressly address by name the federal issue that was raised by petitioner at trial and in his habeas petition, it reached the merits of the petitioner's arguments on its own, without the deference to the state court decision required by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.

The parties in this habeas case have characterized it as presenting a procedural bar issue of whether the MAC permissibly found petitioner had waived constitutional objections to the exclusion of evidence under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), by not presenting those objections at trial. The MAC did not expressly discuss the Chambers argument by name in its opinion. But we view it as having nevertheless rejected the argument on the merits because it expressly rejected the indicia of reliability and trustworthiness that would at a minimum be required in order to advance a successful argument under Chambers and cited a state case, Commonwealth v. Hearn, 31 Mass.App.Ct. 707, 583 N.E.2d 279 (1991), which discussed and rejected Chambers claims. As a practical matter, this reading particularly makes sense because, were we not to adopt such a reading, the presumption that we would be required to draw under Johnson v. Williams, ––– U.S. ––––, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013) would lead us to the same point. The MAC's conclusion was neither an unreasonable application of nor contrary to Chambers.28 U.S.C. § 2254(d)(1).

In addition, to the extent the MAC found in a footnote that petitioner asserted on appeal a new third-party culprit theory of admissibility for this same evidence and that it was never raised in the trial court, we find that review of the third-party culprit theory is procedurally barred. Accordingly, the grant of the petition for habeas corpus relief is reversed.

I.

A. Factual Background

On March 18, 2005, Jones, having just boarded an MBTA bus in the Dorchester section of Boston, was shot and killed. Both Hodge and Francis were charged with and ultimately convicted of the second-degree murder of Jones, seeMass. Gen. Laws ch. 265, § 1, and carrying a firearm without a license, seeMass. Gen. Laws ch. 269, § 10(a). They were tried on a theory which permitted a finding of guilt as either a principal or a joint venturer and both were found guilty on general verdicts.

Jones and Hodge had a history of altercations, having previously been arrested for fighting in the second floor men's restroom of the Dorchester District Courthouse in 2003.

On March 18, 2005, Hodge and Francis were both riding the MBTA bus as it traveled down Columbia Road. When the bus stopped at its Geneva Avenue stop, Jones boarded through the back door along with around six other young men. After Jones and his friends boarded, there was an altercation involving Jones, Hodge, and Francis. Jones was shot and killed.

On habeas review, findings of fact made by a state court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). That presumption extends to findings made on appeal. Teti v. Bender, 507 F.3d 50, 58 (1st Cir.2007). Various eyewitnesses testified at trial. As required by law, we accept the MAC's statement of the testimony:

Eyewitnesses testified that [Francis and Hodge] boarded the bus together and sat down together. As the bus approached the Geneva Avenue bus stop, witnesses saw Hodge pass a camouflage knife to Francis, who passed it back to Hodge; and, when [Jones] and his friends boarded the bus at that stop, both [Francis and Hodge] got up to exit and confront the victim. Shalonda Smith testified that she heard Hodge say, “[W]e've got that thing,” and “[W]e could get him now, why wait, like, what are we waiting for,” and “I should shank him up,” at which point Francis pulled out a palm-sized gun. Another witness, who was driving directly behind the bus, heard a “loud pop,” and saw [Francis and Hodge] standing outside the rear of the bus, smiling and laughing. The same witness also saw Hodge tuck a black, semiautomatic gun into his waistband or pants pocket. [Francis and Hodge] were observed fleeing from the scene together and later were seen running away from the place where the murder weapon was found together with an army knife and clothing matching that worn by Hodge. On the basis of this evidence, a reasonable jury could find that Francis was guilty of second degree murder and unlawful possession of a firearm regardless of who fired the fatal shot.

Francis, 936 N.E.2d 453, 2010 WL 4451102, at *1.

The trial evidence showed that both Hodge and Francis were detained for questioning shortly after the incident. Hodge made a statement to the police, which was admitted at trial. He initially refused to permit his statement to be tape recorded. Four hours after giving his initial statement, however, Hodge gave a second, recorded statement, which was not admitted at trial. ¹ In both statements, Hodge placed himself on the bus at or around the time of the shooting. Hodge claimed he heard a gun shot. Following the shot, Hodge claimed that he fled the scene, discarding his hat and jacket in the process. Hodge was arrested that night. On March 21, 2005, Hodge was arraigned on a murder charge.

When Francis was interrogated, he refused to make a statement to the police, invoking his right to counsel. Francis was released after questioning. Francis was indicted by a grand jury on May 3, 2005.²

B. Trial Court Proceedings as to Statements by Francis

Hodge and Francis were tried as co-defendants before the Suffolk Superior Court (“trial court”). Before trial, Francis moved to suppress certain statements he had made to members of Hodge's family and to Hodge's attorney, on the grounds they were involuntary. Following a hearing, the trial court denied the motion, finding beyond a reasonable doubt that Francis's statements were voluntary. It is these statements which Hodge now says should have been admitted at trial at his request.

Francis's statements as established during the hearing on Francis's motion to suppress were as follows.³ On the weekend of March 19–20 after the March 18 shooting, Francis spoke with Hodge's stepbrother, Spencer Gray. According to Gray, Francis stated that he and Hodge boarded the bus together, having just come from a medical appointment for Hodge. He and Hodge were riding the bus together when Jones and the other young men boarded and started an argument with him and Hodge. Francis stated that one of the young men with Jones pulled a gun. Francis then pulled out his own gun, which, according to Francis, kicked up and fired, hitting Jones in the chest. Francis said that he did not mean to kill Jones. Francis also said that Hodge had gotten off the bus before the shooting. This statement was not consistent with his other statements, as we describe next.

The morning after Hodge's arraignment, Francis, at the urging of members of Hodge's family, met with Hodge's appointed attorney, John Cunha. Cunha recounted the meeting before the grand jury. According to Cunha, Francis explained to him, and later to his law partner Helen Holcomb, that Francis and Hodge had attempted to exit the bus when Jones and his associates boarded. Francis said that Jones and the other young men blocked the doorway, at which point one of the young men pulled a gun and pointed it at Hodge. Francis said he reached out to grab the gun. After wresting the gun away, Francis turned and observed Jones, who, according to Francis, was reaching to his waist. At that point, Francis claimed, the young man from whom Francis had taken the gun tried to grab it back. The gun then went off, hitting Jones. According to Cunha, Francis insisted that his finger was not on the trigger when the gun fired. As before, Francis claimed that Hodge had left the bus before the shot was fired.

According to Hodge's counsel's representation to the trial court, Hodge's mother, Denise Gray, observed Francis speak to his grandmother after his meeting with Cunha. Francis purportedly admitted to holding the gun when it went off. Francis insisted to his grandmother that he had told Cunha the truth.

The trial court denied Francis's motion to suppress these statements, finding them to be voluntary.

Both Hodge and Francis moved to have the trial severed. In his motion for severance, Hodge argued, among other things, that the statements by Francis, which the Commonwealth might introduce as evidence against Francis, were prejudicial...