Hurtado v. Tucker, Civil Action No. 96-11915-RWZ.

• Decision Date: 28 February 2000
• Docket Number: Civil Action No. 96-11915-RWZ.
• Citation: 90 F.Supp.2d 118
• Parties: Bernardo HURTADO v. John TUCKER, et al.
• Court: U.S. District Court — District of Massachusetts

90 F.Supp.2d 118

Bernardo HURTADO v. John TUCKER, et al.

Civil Action No. 96-11915-RWZ.

United States District Court, D. Massachusetts.

February 28, 2000.

Eugene P. McCann, Lawrence, MA, for petitioner.

Annette C. Benedetto, Asst. Atty. Gen., Criminal Bureau, Boston, MA, for respondent.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

Respondent objects to the Report and Recommendation of the Magistrate Judge that the petition for a writ of habeas corpus be granted. The petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which amended 28 U.S.C. § 2254 and, the Magistrate Judge ruled, governed the proceedings before him.

To the extent respondent suggests that the Magistrate Judge improperly weighed the evidence, he misconceives the report. The Magistrate Judge certainly reviewed the evidence, and he determined that that evidence was insufficient to convict. But he did so not as a result of weighing it and disagreeing with the state court as to its weight, but because much of the evidence concerning petitioner's participation recited and relied upon by the state court did not exist; it was not in the record.

To the extent respondent argues that the Magistrate Judge misapplied the AEDPA, the objections are overruled. The Report was filed four days before the First Circuit issued its first decision interpreting the provision incorporated into 28 U.S.C. § 2254(d)(1) by the AEDPA, O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998). Although the analysis prescribed by O'Brien, differs somewhat from that employed by the Magistrate Judge, it does not change the end result.

I begin at the beginning. Under the AEDPA, the writ may be granted only if the state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). O'Brien teaches that the reviewing court must undertake a two-step analysis of the state court decision. See O'Brien, 145 F.3d at 24. The first question is whether the Supreme Court has prescribed a rule that governs the petitioner's claim. See id. If so, the second question is whether the state court decision is "contrary to" that rule. See id. If not, the second question becomes whether the state court's use (or failure to use) existing law in deciding petitioner's claim, involved an "unreasonable application" of Supreme Court precedent. See id.

The Magistrate Judge held that the Supreme Court had articulated a governing rule in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that the state court had posed the appropriate question under that rule; namely, "whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support a finding that the defendant was guilty of each element of the offenses beyond a reasonable doubt." See O'Brien, 145 F.3d at 25, n. 6 (noting that Jackson provides rule governing insufficiency at evidence claims). Since the state court had articulated the correct question, the Magistrate Judge determined that its ruling was not "contrary to" the Supreme Court rule. He therefore considered the alternative, whether its use of existing law nevertheless involved an "unreasonable application" of the Supreme Court rule, and found that it did.

Since the Magistrate Judge did not have the benefit of the O'Brien analysis, the framework for his decision is not entirely in conformity therewith. However his meticulous review of the evidence and his careful and thorough review of state law allow consideration of, and an answer to, the question he should have asked: is the state court's decision (not merely its recitation of the law) "contrary to" the Supreme Court precedent that prescribes the governing rule? To generate an affirmative response, petitioner must show that Supreme Court precedent "requires an outcome contrary to that reached by the ... state court." O'Brien, 145 F.3d at 24-25. For the reasons articulated in the Magistrate Judge's Report and Recommendation, the record did not show sufficient evidence to support a finding of petitioner's guilt beyond a reasonable doubt. The state court's adjudication was, therefore, contrary to the clearly established governing rule, that the evidence in a criminal case must be sufficient to prove each element of the offense beyond a reasonable doubt. Accordingly, I accept the Report and Recommendation.

Judgment may be entered granting the writ.

REPORT AND RECOMMENDATION ON PETITION UNDER § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (# 1)

COLLINGS, United States Magistrate Judge.

I. Introduction

Presently before the Court is petitioner Bernardo Hurtado's ("Hurtado") petition for a writ of habeas corpus. Hurtado is paroled on a conviction in the Massachusetts Superior Court for trafficking in cocaine and possession with intent to distribute heroin.¹ He seeks relief pursuant to 28 U.S.C. § 2254. As his petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), it is governed by the recently-amended version of 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).

II. Statement of Facts²

On January 24, 1991, police executed two search warrants for 77 Newbury Street in Lawrence, Massachusetts. The warrants were obtained after several weeks of surveillance of the building and four controlled drug buys by a confidential informant. The building is a three-story, multi-family structure with three apartments on the left-hand side of the building and three apartments on the right. An interior stairway on each side connects the three floors, but the two sides of the building are not accessible to one another, except through the exterior doors. All of the apartments on the left-hand side of the building were vacant, as was the third-floor apartment on the right-hand side. The warrants authorized searches of the first and second-floor apartments on the right.³ The first-floor apartment was occupied by Lydia Nunez and her six children,⁴ one of whom was Roberto Nunez. Hurtado and Lydia Nunez were husband and wife. Hurtado also may have lived in the apartment, though the evidence on this point was disputed at trial. Hurtado testified that he and his wife had been separated at the time of the search and that he had been living at another address. Commonwealth v. Hurtado, 1996 WL 32856, No. 94-P-1821 (Mass.App.Ct. Jan.25, 1996) at 1-2 (hereinafter "Hurtado").

As police entered the right side of the building, they heard people shouting "Policia" from above them and heard people running. Two officers ran to the second-floor landing, where they encountered Lydia and Roberto Nunez coming down from the third floor. As Roberto Nunez ran down the stairs, officers saw him throw something down; when officers retrieved it, it turned out to be over $6,100.00 in cash. Both Roberto and Lydia Nunez were arrested, while another male fled back up the stairs and into the third-floor apartment. Hurtado at 2. An officer pursued the unidentified male into the apartment. The individual escaped, but the pursuing officer found drugs and drug paraphernalia in plain view in the third-floor apartment. The drugs discovered included 29 packages of cocaine weighing 5.34 grams in total; a packet of cocaine weighing 1.09 grams, a bag containing 10.44 grams of cocaine; two white packets and two yellow bags of heroin containing .04 grams each, and 135 blue packets of heroin stamped with the image of a witch and weighing 4.13 grams in total. Among the paraphernalia discovered were a triple-beam scale, a small scale, a heat sealer for plastic bags, strainers, mannitol,⁵ 200-300 empty blue bags, 500 empty white and clear plastic bags, sandwich bags, and blue bags stamped with the image of a witch. The officer also discovered additional witch stamps, stamp pads, and a pair of scissors with a jagged edge. Id. at 2-3.⁶

At the time the police entered the building, Hurtado was in the first-floor apartment. He emerged from the apartment as police entered; an officer announced he had a warrant to search the apartment and took Hurtado back into the apartment. Hurtado sat at the kitchen table while officers conducted their search; the officer described him as "cooperative." (# 12, Exh. 8 at 1-161) When requested, Hurtado gave the officers his driver's license and his car's registration. (Id. at 1-128-29) No cash, drugs or drug paraphernalia were found on Hurtado.

In their search of the first-floor apartment, officers discovered eleven small clear plastic bags typically used to distribute a quarter gram of cocaine, along with a small white plastic bag with a witch stamp on it; these were found in a hutch in the kitchen. Inside a false plant pot in the kitchen, police also found three blue bags with witch stamps; lab analysis revealed that the bags contained heroin residue. Hurtado at 4. In the master bedroom, police found a piece of paper⁷ containing drug notations;⁸ the notations contained references to "Ma," and were found on top of a dresser along with some gold jewelry and a jewelry box. (# 12, Exh. 8 at 1-125) Somewhere in the master bedroom, officers also found two expired passports belonging to Hurtado, but no one testified where in that room the passports were found.

Police testified that during the four to six weeks of surveillance of the building before they executed the search warrants, they saw Hurtado outside the building "almost all the time" they were there. (# 12, Exh. 8 at 1-94) Police also testified that they witnessed numerous drug transactions outside the building. (Id. at 1—107-09) The officers testified that they never saw Hurtado participate in any of the transactions; in fact, there was...