Janosky v. St. Amand

• Decision Date: 03 February 2010
• Docket Number: No. 09-1012.,09-1012.
• Parties: Sean JANOSKY, Petitioner, Appellant, v. Peter ST. AMAND, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

594 F.3d 39

Sean JANOSKY, Petitioner, Appellant, v. Peter ST. AMAND, Respondent, Appellee.

No. 09-1012.

United States Court of Appeals, First Circuit.

Heard November 4, 2009.

Decided February 3, 2010.

Francis J. Hurley, with whom Gannon & Hurley, P.C. was on brief, for appellant.

Anne M. Thomas, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This case arises out of an armed robbery gone awry. In his appeal, petitioner-appellant Sean Janosky, a state prisoner, challenges the dismissal of his federal habeas petition, which asserted violations of his constitutional rights under the Sixth and Fourteenth Amendments. After careful consideration, we affirm the denial of habeas relief.

I. BACKGROUND

On December 18, 1999, two men robbed a diamond merchant at his place of business in Peabody, Massachusetts. The police investigation led to John Pedoto, Jr., whom the police suspected might have driven the getaway car. During questioning, Pedoto named the petitioner as the lead robber—the man who had posed as a prospective customer and then robbed the merchant at gunpoint.

The police found a piece of scrap paper in a search of Pedoto's car. The paper bore the name "Shawn" and a seven-digit telephone number. Within the Boston area code, that number was listed to one Ann Janosky, at the petitioner's residence.

The police presented a black-and-white photo array to the diamond merchant and his wife (the merchant had seen the thief both during the robbery and while browsing in the store five days earlier; his wife had seen the thief on the prior occasion). The merchant identified the petitioner as the armed robber. His wife could not identify anyone from this first array but identified the petitioner when shown an in-color photo array one month later. The police obtained a search warrant for the petitioner's residence and seized a brown ribbed turtleneck sweater, similar to one described by the merchant as having been worn by the armed robber.

A state grand jury returned an indictment against the petitioner and a codefendant, Mark Bova, whom the authorities had come to believe was the second man involved in the heist. In advance of trial, the petitioner's counsel moved to allow questioning of police witnesses concerning the statements made by Pedoto (who had since died). Counsel explained that the purpose of this testimony was to show that once Pedoto falsely implicated the petitioner in the robbery in order to shift the spotlight, the police made a prescindent rush to judgment and failed to conduct a full investigation into other potential suspects. Relatedly, counsel asked for a limiting instruction to the effect that Pedoto's statements should not be considered for the truth of the matters asserted. The trial justice deemed these requests premature, although he indicated that, if the evidence came in, he would be inclined to give such an instruction.

The two defendants were tried together. At trial, the prosecution entered into evidence a copy of the scrap of paper seized from Pedoto's car. The petitioner's counsel objected to the introduction of that evidence on hearsay and best evidence grounds, but to no avail.

Also during the trial, the petitioner's counsel elicited testimony from the investigating officers that Pedoto was the one who first linked the petitioner with the robbery. Despite the trial justice's earlier intimation, the petitioner's lawyer did not request an instruction forbidding the use of this testimony as proof of the matters asserted. No such instruction was given but, at the codefendant's request, the trial justice instructed that Pedoto's statements were offered solely against the petitioner and could not be used against Bova.

On March 28, 2002, the jury convicted the petitioner of armed robbery and carrying a firearm without a license. See Mass. Gen. Laws ch. 265, § 17; id. ch. 269, § 10(a). At the same time, it acquitted him of a charge of armed assault with intent to murder. The jury acquitted Bova on the solitary charge against him (armed robbery).

The petitioner appealed and, while his appeal was pending, filed a motion for a new trial.¹ The trial justice denied this motion, and the petitioner appealed from that order. The Massachusetts Appeals Court (MAC) consolidated the two direct appeals and rejected both of them. Commonwealth v. Janofsky [sic], 68 Mass.App. Ct. 1112, 862 N.E.2d 470 (2007) (table).

The petitioner then filed an application for leave to obtain further appellate review (ALOFAR). The Supreme Judicial Court (SJC) summarily denied the ALOFAR. Commonwealth v. Janosky, 449 Mass. 1102, 865 N.E.2d 1141 (2007) (table).

The petitioner repaired to the federal district court and timely sought habeas relief. 28 U.S.C. § 2254. Pertinently, he claimed that: (i) the trial justice's failure to give a suitable limiting instruction violated his constitutional rights to confrontation and due process; (ii) his trial counsel's shoddy performance violated his constitutional right to receive effective assistance of counsel; and (iii) the trial justice's admission of a copy of the scrap of paper seized from Pedoto's car violated his Sixth Amendment right to confrontation. The district court dismissed the petition. Janosky v. St. Amand, No. 08-10713 (D.Mass. Nov. 17, 2008) (unpublished order). The court held that the petitioner's first claim was procedurally barred; that the state courts' rejection of the second claim did not represent an unreasonable application of clearly established federal law; and that the third claim had not been fully exhausted and, thus, was not cognizable on federal habeas review. This timely appeal ensued.

II. ANALYSIS

We divide our analysis into three segments, each corresponding to a discrete claim of error. Although the three claims implicate distinct bodies of federal habeas law, all of the district court's disputed legal determinations engender de novo review. Prou v. United States, 199 F.3d 37, 42 (1st Cir.1999).

A. Jury Instructions.

We begin with the petitioner's claim that the trial justice abridged his rights by failing to give a sua sponte limiting instruction concerning Pedoto's hearsay statements, and made a bad situation worse by advising the jury (at the codefendant's timely request) that those statements were admitted only against the petitioner. The MAC did not deal with the merits of this claim because the petitioner had not seasonably objected at trial, rendering his claim procedurally barred. That a procedural default took place cannot be gainsaid, and the district court discerned no basis for excusing this procedural default. Accordingly, it ruled that this claim was not subject to federal habeas review. We examine that ruling.

Federal habeas review of a particular claim is precluded in circumstances in which a state prisoner has defaulted on that claim in state court by virtue of an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Setting to one side cases of actual innocence, this general prohibition applies unless the habeas petitioner can demonstrate cause for the default and actual prejudice. Id.

We have held, with a regularity bordering on the monotonous, that the Massachusetts requirement for contemporaneous objections is an independent and adequate state procedural ground, firmly established in the state's jurisprudence and regularly followed in its courts. See Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir.2002); Brewer v. Marshall, 119 F.3d 993, 1001 (1st Cir.1997); Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.1995); cf. Johnson v. Mississippi, 486 U.S. 578, 588-89, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (requiring that a state procedural rule be consistently applied in order to constitute an independent and adequate state ground). Here, the MAC applied the state's contemporaneous objection rule to bar review of this claim after engaging in a brief "miscarriage of justice" assessment to determine whether it should look past the procedural default.

This discretionary miscarriage-of-justice review does not amount to a waiver of the state's contemporaneous objection rule. See Gunter, 291 F.3d at 80; Burks, 55 F.3d at 716 n. 2; Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir.1991); cf. Beard v. Kindler, ___ U.S. ___, 130 S.Ct. 612, 618, ___ L.Ed.2d ___ (2009) (holding that "a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review"). Consequently, federal habeas review of the petitioner's jury instruction claim is foreclosed unless—with one exception noted below—he can demonstrate cause and prejudice. See Burks, 55 F.3d at 716.

The petitioner contends that there is cause for his procedural default because his trial counsel performed ineffectively by failing to request a limiting instruction and not objecting to the instruction actually given. The premise on which this contention rests is sound: ineffective assistance of counsel, so severe that it violates the Sixth Amendment, may constitute sufficient cause to excuse a procedural default as long as the petitioner exhausted his ineffective assistance claim in state court. Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). On this point, exhaustion is not a problem; the petitioner assiduously pursued a constitutionally focused ineffective assistance claim before all the affected state courts, thus satisfying the exhaustion requirement, and the state courts rejected the claim on the merits. Consequently, the question reduces to whether trial counsel's performance was constitutionally infirm.

That question calls into play the familiar test elucidated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This circuit has not yet ruled on...