Isabelle v. Mansfield, Civil Action No. 06-10923-RGS.

Decision Date10 July 2008
Docket NumberCivil Action No. 06-10923-RGS.
PartiesHeather ISABELLE v. John L. MANSFIELD, Chief Probation Officer; and Elizabeth Halloran, Probation Officer.
CourtU.S. District Court — District of Massachusetts

Michele R. Moretti, Law Office of Michele R. Moretti, Boston, MA, for Petitioner.

Randall E. Ravitz, Office of the Attorney General, Trial Division, Boston, MA, for Respondents.

MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STEARNS, District Judge.

This petition raises a substantial issue involving prosecutorial error under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).1 As Magistrate Judge Dein explained, the debate over whether the error in the context of the trial as a whole merited a reversal of petitioner's conviction split the Massachusetts Supreme Judicial Court (SJC) into two sharply divided blocs. As the 4-3 vote of the SJC affirming petitioner's conviction illustrates, the result could well have been different. One might reasonably think that the majority of the SJC was wrong in affirming petitioner's conviction—although like Magistrate Judge Dein I think it was not. But for purposes of habeas review, the issue is not whether the majority of the Court wrongly applied established federal law, but whether the application was unreasonable. Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). It was not.2 Consequently, the recommendation of the Magistrate Judge is ADOPTED and the petition is DISMISSED. The Clerk may now close the case.

SO ORDERED.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The petitioner, Heather Isabelle ("Isabelle" or "defendant"), was convicted on February 1, 2001 by a Bristol County Superior Court jury of charges of assault and battery on a child under the age of fourteen years causing substantial bodily injury (Mass. Gen. Laws ch. 265, § 13J[b]), and assault and battery with a dangerous weapon (Mass. Gen. Laws ch. 265, § 15A[b]). She was sentenced to five years incarceration in State prison for the assault and battery with a dangerous weapon conviction, and to ten years of probation for the assault and battery on a child, with probation to run from and after incarceration. Her conviction was affirmed by the Massachusetts Appeals Court in an unpublished opinion, Commonwealth v. Isabelle, 60 Mass.App.Ct. 1117, 803 N.E.2d 1288, 2004 WL 287364 (2004) ("Isabelle I"). The Massachusetts Supreme Judicial Court ("SJC") allowed Isabelle's petition for further appellate review as to one claim, and affirmed the conviction, but with three justices dissenting. Commonwealth v. Isabelle, 444 Mass. 416, 828 N.E.2d 53 (2005) ("Isabelle II").

This matter is presently before the court on Isabelle's timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By this petition, Isabelle contends that (1) the prosecutor's elicitation of testimony that Isabelle requested an attorney when questioned by police violated her constitutional rights and constituted reversible error, and (2) Isabelle's trial counsel's failure to request a unanimity instruction in order to prevent juror confusion constituted ineffective assistance of counsel. The first issue is the one addressed by both the Appeals Court and the SJC. This court finds that the state court decisions rejecting Isabelle's contentions with respect to both of her claims were neither contrary to, nor an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. Therefore, and for the reasons detailed more fully herein, this court recommends to the District Judge to whom this case is assigned that Isabelle's Petition for Writ of Habeas Corpus be DENIED.

II. STATEMENT OF FACTS3
The Underlying Crime

Isabelle's convictions arise from abuse injuries sustained by her then two-year old daughter, Holly, sometime during the period May 12-25, 1999. Isabelle II, 444 Mass. at 417, 828 N.E.2d at 55. The critical question of fact that the jury had to decide was whether those injuries were caused by Isabelle or by a neighbor, Heidi Niemic (or someone in Niemic's household), in whose care Holly had been entrusted. The facts, as described by the state courts, were as follows:

On April 16, 1999, the Department of Social Services ("DSS") removed Holly and her two young sisters from the home that Isabelle shared with the girls' father, William Niemic. Id. at 417, 828 N.E.2d at 55. Holly was returned to the home on April 30, 1999, while her sisters remained in foster care. Id. at 417 n. 2, 828 N.E.2d at 55 n. 2. Jacqueline Green ("Green"), the social worker assigned to the case, attempted to see the victim three days after her return, but the defendant refused to let her see the child. Id. at 417, 828 N.E.2d at 55. Between April 30 and May 24, Green was unable to see the victim. Id. There was evidence at trial, although disputed by Isabelle, that Isabelle told Green and an investigator with DSS that Holly was at her maternal grandfather's home in Rhode Island during this period. Id. At trial, Isabelle testified that Holly was at the home of Heidi Niemic ("Niemic") from May 12 until May 25, when Green and Isabelle picked her up for a meeting with Isabelle's attorney. Id. at 417-18, 828 N.E.2d at 55-56. Niemic is William Niemic's niece. Id. at 417 n. 4, 828 N.E.2d at 55 n. 4. According to Isabelle, Niemic was taking care of Holly because William Niemic had raped and beaten Isabelle on May 11th, for which he was arrested, and Niemic had offered to watch Holly for a few days because Isabelle was "really hurt from what Billy had done." (Tr. (SA Ex. 0) at 11:50-51).

Niemic denied that Holly was in her care from May 12 through May 25. Rather, she testified that the victim was in her care from May 20 until the morning of May 23, 1999, when Holly was returned to her mother, and then again from the evening of May 23 until May 25, when Isabelle and Green picked her up. Isabelle II, 444 Mass. at 417-18, 828 N.E.2d at 55. Isabelle denied having her child with her on May 23, and there was corroborating testimony from a neighbor that Isabelle was with the neighbor most of that day attending another neighbor's cookout, and that Holly was not there. Id. (See Tr. 11:87-90).4

According to Niemic, when giving Holly a bath on May 20th she noticed a bruise on the victim's face and teeth marks on Holly's inner thighs. (Tr. 1:75-76). Isabelle II, 444 Mass. at 418, 828 N.E.2d at 55. She stated that although she was concerned and contacted DSS, she did not file a report because she did not want to "get involved." Isabelle II, 444 Mass. at 418, 828 N.E.2d at 55. Niemic then testified that after Isabelle returned with Holly on the afternoon of May 23, she noticed blisters and bruises on Holly's body, a red mark in one of her eyes, and that Holly was acting uncharacteristically lethargic. Id.

Isabelle and Green picked Holly up at Niemic's apartment on May 25 for a meeting with Isabelle's attorney. Id. at 418 828 N.E.2d at 55-56. Isabelle was in the process of attempting to regain custody of her children from DSS. Id. at 420, 828 N.E.2d at 57. At that time, Green noticed some of the injuries. Id. at 418, 828 N.E.2d at 56. Green testified that when she asked Niemic what had happened, Niemic said the victim "took a digger." Id. Niemic, however, testified that when she said this she was lying because she "was trying to cover" for Isabelle. Id. at 418 n. 5, 828 N.E.2d at 56 n. 5. Green further testified that Isabelle showed no reaction to Holly's injuries until she was told that they were taking the child to the hospital. Id. at 418, 828 N.E.2d at 56.

Once at the hospital, Green took the victim into the emergency room because Isabelle did not move out of the car. Id. There was testimony by a police officer that Isabelle wanted to leave the hospital. Id. For her part, Isabelle testified that she was told to leave the hospital because there was a court order barring her from seeing Holly. Id. at 419 n. 10, 828 N.E.2d at 56 n. 10. However, no evidence of a court order was introduced at trial. Id.

Holly was admitted to the hospital with serious injuries, including various bruises that were in different stages of healing, bleeding between the brain and skull which apparently had resulted from a violent shaking episode one to two weeks earlier, a hemorrhage in her eye which the doctor estimated had resulted from a violent shaking episode less than one week before the examination, red marks on her skin, injury to her scalp which indicated that her hair had been pulled out, and nine lesions consistent with cigarette burns. Id. at 418 & nn. 7-8, 828 N.E.2d at 56 & nn. 7-8. As evidenced by their stages of healing, the doctor was of the opinion that some of the bruises had been sustained two to three days before, while others were approximately seven to ten days old. Id. at 418 n. 6, 828 N.E.2d at 56 n. 6.

Questioning at Trial

Before Isabelle's trial, defense counsel successfully brought a motion in limine to preclude the admission of evidence that Isabelle had requested an attorney during her interrogation by police. Isabelle II, 444 Mass. at 418-19, 828 N.E.2d at 56. The court allowed defendant's request that the police witnesses not be asked' what question they had asked Isabelle immediately before she requested to speak with her attorney, i.e., "I asked her if she ever harmed [the victim]." Id. at 419 n. 11, 828 N.E.2d at 56 n. 11. Nevertheless, during direct examination of the detective, the prosecutor elicited the exact testimony barred by the pretrial ruling. Id. at 419, 828 N.E.2d at 56. Defense counsel's objection was sustained and the reference was stricken. Id. No curative instruction was requested and none was given. Id. Specifically, the questioning of the police witness concerning Isabelle's interview ...

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