Horton v. Allen

Decision Date26 May 2004
Docket NumberNo. 03-1423.,03-1423.
PartiesRussell J. HORTON, Petitioner, Appellant, v. Peter ALLEN, et al., Respondents, Appellees.
CourtU.S. Court of Appeals — First Circuit

Emanuel Howard, for appellant.

Annette C. Benedetto, Assistant Attorney General with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

Before SELYA and HOWARD, Circuit Judges, and Singal,* District Judge.

HOWARD, Circuit Judge.

Petitioner Russell Horton, a Massachusetts state prisoner convicted of two first-degree murders, appeals from the denial of his petition for a writ of habeas corpus. We affirm.

I. Factual Background

In June 1998, a jury convicted Horton of committing two first-degree murders and an assault with the intent to murder. We provide a summary of the evidence introduced at Horton's trial. See Commonwealth v. Horton, 434 Mass. 823, 753 N.E.2d 119, 122-24 (2001).

On May 25, 1994, the three victims, Carlos and Manuel Araujo and Kepler Desir drove together from Boston to Brockton, Massachusetts. During the drive, Desir instructed Manuel to pick up Horton and Frederick Christian on Owens Street in Brockton. Desir knew these two men, but the Araujos did not. Christian and Horton got into the back seat of the car with Carlos, and the five men drove off together.

During the drive, Horton announced that he wanted to rob some "Dominican drug dealers" and instructed Manuel to drive to a certain location where he could carry out his plan. Along the way, Horton exposed a gun and asked the others if they had weapons. They claimed that they did not. Upon arriving at the site, Horton and Christian left the car but returned shortly, claiming that they were unable to complete the robbery. After reentering the car, Horton instructed Manuel to drive to a nearby parking lot.

In the parking lot, while staring out the window, Carlos was shot in the head. He immediately slumped forward, pretending to be dead. After two more shots were fired, Carlos heard Horton say, "Go through their pockets." Carlos then sensed Christian move from his seat and heard him ask Horton, "Did you do him?" Several minutes later, Christian and Horton departed the scene.

After laying still for a few more moments, Carlos saw the bodies of Manuel and Desir and ran to the nearest house for help. Carlos told the people in the house that "Russell" had shot him. Later, at the hospital, Carlos repeated that "Russell" had shot him.

Barry Stephens lived near the parking lot where the murders occurred and knew Horton and Christian. He testified that Horton had sold drugs for Desir but, because of a recent falling out, Horton was no longer working for Desir. He also testified that, on the night of the murders, he had heard gun shots, and that five minutes later, Horton and Christian had arrived at his house. According to Stephens, Horton "was foaming at the mouth" and looking "wild." Horton told him that, "[He] smoked him ... [He] smoked all three of them." In particular, Horton said that he had "smoked Quarter," which was Desir's nickname. Stephens told Horton and Christian to leave immediately.

At the time of the murders, Christian was in financial trouble. On the day of the shootings, Christian stated that he needed money and asked Desir for drugs on credit, a request which Desir refused. Horton and Christian believed that Desir was carrying a large amount of cash on the night of the murders because he was planning to travel to New York later that night to buy several thousand dollars worth of drugs.

Horton gave inconsistent statements concerning his whereabouts on the night of the murders. He first told the police that he had met up with Christian, that they had gone for a walk with another friend, and had gone home at approximately 11 p.m. After the police indicated that they intended to search the car for fingerprints and talk to Christian, Horton changed his story. He stated that he and Christian were with Desir and two other men, and that they had driven to Fuller Avenue, where he and Christian left to buy drugs. He told the police that he expected Desir to return to pick him up, but Desir never did.

II. Procedural Background

The trial court sentenced Horton to concurrent life terms of imprisonment for the murders and a 10-15 year term for the assault. Horton subsequently filed a motion for new trial, see Mass. R.Crim. P. 30, which was denied by the trial court. Thereafter, the Supreme Judicial Court of Massachusetts (SJC) rejected Horton's direct appeal and his appeal from the denial of his new trial motion. See Horton, 753 N.E.2d at 131.

Horton then filed a timely petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. See 28 U.S.C. § 2254(d). In his petition, Horton claimed that (1) his right to a public trial was violated; (2) his right to confront witnesses was violated; (3) the jury instructions were incorrect; and (4) his trial counsel was ineffective. In an unpublished memorandum and order, the district court rejected the petition. See Horton v. Maloney, No. 02-CV-10416-MEL, (D.Mass. Feb. 5, 2003). Horton obtained certificates of appealability for each of the claims, except the jury instruction issue. See 28 U.S.C. § 2253.

III. Discussion

Horton's appeal raises three claims. First, he argues that the trial court violated his Sixth Amendment right to a public trial by holding the individual voir dire of potential jurors in an anteroom rather than the courtroom. Second, he contends that the trial court violated his Sixth Amendment right to confront witnesses by admitting certain hearsay testimony. Third, he asserts that his Sixth Amendment right to effective counsel was violated because defense counsel did not call certain alibi witnesses and failed to interview certain potential character witnesses.

Horton's habeas corpus petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. §§ 2244-2266. Under the AEDPA, a federal court may grant a habeas petition if it finds that the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law." 28 U.S.C. § 2254(d)(1).

Under the "contrary to" prong of 28 U.S.C. § 2254(d)(1), the petition may be granted if the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" prong of 28 U.S.C. § 2254(d)(1), the petition may be granted if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. To be an unreasonable application of governing law, the state court's determination must not only be incorrect but also be objectively unreasonable. Id. at 410-11, 120 S.Ct. 1495. In other words, if the petition presents a close call, it must be rejected, even if the state court was wrong. See Nom v. Spencer, 337 F.3d 112, 116 (1st Cir.2003). If, however, the petition presents a federal claim that was raised before the state court but was left unresolved, the AEDPA's strict standards do not apply. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001). In such a circumstance, we review the claim de novo. See Norton v. Spencer, 351 F.3d 1, 5 (1st Cir.2003).

A. Public Trial

Horton and the prosecution jointly requested that the trial court conduct an individual voir dire of prospective jurors to ask them about the effect that racial prejudice and pretrial publicity could have on their ability to decide the case impartially.1 Massachusetts law requires that an individual voir dire be conducted "outside the presence of other persons about to be called as jurors or already called." Mass. Gen. L. ch. 234, § 28. To comply with this statute, the court conducted the individual voir dire in an anteroom, while the other potential jurors waited in the courtroom. Horton and his counsel were present for the entire proceeding, and Horton was able to aid his counsel throughout.2 Defense counsel did not object to conducting the individual voir dire in the anteroom. Accordingly, the SJC held that the issue was not preserved for appellate review and considered it only for "a substantial likelihood of a miscarriage of justice." Horton, 753 N.E.2d at 127. The SJC rejected the claim because Horton did not suffer prejudice from the voir dire procedure. Id. at 128.

Citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), Horton argued in the district court that this voir dire procedure violated his right to a public trial because the public was excluded from attending the individual juror questioning. The district court rejected this claim on procedural default grounds because defense counsel did not object at trial.

Generally, habeas review is precluded when a state court reaches its decision on an independent and adequate state law ground. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A state court's decision to find a forfeiture, based on the defendant's failure to object at trial, is an independent and adequate ground for decision so long as the state court consistently applies its contemporaneous objection rule and has not waived it in the particular case by basing the decision on some other ground. See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.1995). That is the situation here. The SJC consistently enforces the rule that unpreserved claims are forfeited, see Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir.2002), and enforced the rule in the...

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