John v. Russo, Civil Action No. 05-11653-WGY.

• Decision Date: 13 October 2006
• Docket Number: Civil Action No. 05-11653-WGY.
• Citation: 455 F.Supp.2d 1
• Parties: Dwight JOHN, Petitioner, v. Lois RUSSO, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 1

455 F.Supp.2d 1

Dwight JOHN, Petitioner, v. Lois RUSSO, Defendant.

Civil Action No. 05-11653-WGY.

United States District Court, D. Massachusetts.

October 13, 2006.

COPYRIGHT MATERIAL OMITTED

James W. Lawson, Oteri, Weinberg & Lawson, Boston, MA, for Petitioner.

David M. Lieber, Assistant Attorney General, Daniel I. Smulow, Office of the Attorney General, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Dwight John ("John") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. John is seeking an evidentiary hearing and reversal of his conviction of first degree murder in Massachusetts Superior Court sitting in and for the County of Suffolk. Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person In State Custody ("Habeas Pet.") [Doc. No. 1] at 1. He argues that (1) the Superior Court and the Massachusetts Supreme Judicial Court's ("Supreme Judicial Court") rulings that John's statements and testimony were not protected from disclosure by a grant of immunity were contrary to and an unreasonable application of United States Supreme Court decisions and (2) the state court's factual finding that John's immunity was conditioned on his testimony at another trial was based upon an unreasonable determination of the facts in light of the record and the evidence produced during the hearing on his motion to suppress and to dismiss. Pet. Mem. In Support of Mot. to Vacate the Conviction and Sentence Pursuant to Title 28 U.S.C. § 2254 ("Pet.Mem.") [Doc. No. 2] at 17.

II. Factual¹ and Procedural History

In 1990, Lezmore Bufong ("Bufong") was killed in the Commonwealth and John was arrested and charged with his murder after being found in New York in Bufong's car with Bufong's possessions. Findings of Fact, Rulings of Law and Order on Def.'s Mot. to Suppress, Dismiss, and Preclude ("Super.Ct.Op.") at 1 (December 27, 2001)(Brady, J.) in Pet.App. In Support of Mot. to Vacate the Conviction and Sentence Vol. I ("Pet.App.I") [Doc. No. 3] at 21. The Commonwealth later nol prossed the indictment for lack of evidence. Id. In 1996, while John was awaiting trial on an unrelated robbery charge in New York City, he contacted Deputy Inspector Andy Stoisch² ("Stoisch") of the New York City Police Department, with whom he had a prior relationship, stating that he had information he wanted to share. Id. at 2. In a series of meetings that followed, he provided New York City police with information³ on the criminal activities of the Poison Clan⁴— gang which John helped form in the late 1980's—including information regarding the murder of the Poison Clan's leader George Chang ("Chang"). Commonwealth v. John, 442 Mass. 329, 330, 332, 812 N.E.2d 1218 (2004).

The New York City police shared this information with Assistant United States Attorney David Novak ("Novak"), who was building a federal case in Virginia against Dean Beckford and other Poison Clan members. Id. at 332, 812 N.E.2d 1218. Through John's New York attorney, Jennifer Fiess ("Fiess"), Novak inquired into John's willingness to cooperate in the Poison Clan investigation. Super. Ct. Op. at 2. He was willing, but refused Novak's offer to seek court-appointed counsel despite Novak's explanation that he should be represented by Virginia counsel. Id. at 2-3. For approximately thirty minutes, Novak attempted to persuade John that it was in his best interest to have an attorney but John continued to refuse. Id. John also refused to sign the standard form proffer letter Novak presented to him.⁵ Id. John "emphatically stated that he wanted no deal; he just wanted to tell his story." Id.

Novak was not informed nor aware that John suffered from any form of mental illness, though medical records submitted at the motion to suppress hearing indicated that John had been hospitalized various times for mental illness, first in 1990 in connection with a possible suicide attempt and then on several occasions in 1997 and 1998 while he was incarcerated in New York.⁶ Id. at 3, 8. Novak had John's record, which included John's prior charge for the Bufong murder and subsequent dismissal. Id. at 3. Over the course of several interviews with John, Novak asked John more than once if he had killed anyone, to which John replied in the negative. Id. The purpose of this inquiry was to assess John as a witness and know whatever "dirt" the defense had on John. Id. John did, however, admit to providing the gun to Chang's killer. Id. at 3-4.

On May 9, 1996, John testified before the grand jury, providing details about the Chang murder and the Poison Clan. Id: at 4. In his testimony, John stated that he had agreed to cooperate with Novak's office and that the prosecutors had agreed to notify the Brooklyn District Attorney's office of his cooperation.⁷ Id. This was the only agreement between Novak and John. Id. On October 2, 1996, the grand jury indicted Beckford and others, several of whom were incarcerated in the same facility as John. Id. Novak later received reports that John was acting bizarrely— walking around naked and throwing feces about. Id. Novak visited him and John informed Novak that he no longer wished to cooperate. Id. At a subsequent visit, John told Novak that he would refuse to testify. Id. at 4-5. They argued about this and Novak explained that John would have no choice in the matter because Novak could immunize John, formally or informally. Id. at 5. The Superior Court judge observed that "[i]n context, [Novak's] statements concerning immunity were made in response to John's statement that he was going to refuse to testify on 5th Amendment privilege grounds."⁸ Id.

On May 21, 1997, after Novak's visit to John in prison and shortly before the federal trial in Virginia, the government sent two notices to the Poison Clan defendants regarding John: one indicating that John engaged in behavioral violations while in the Virginia jail and the other stating that John received a reduced plea in his robbery case as a result of the federal prosecutors informing the Brooklyn District Attorney of his cooperation and that "Dwight John has been informed that he has use immunity for his statements, meaning that anything that he says cannot be held against him in any fashion," Notice Regarding Dwight John ("John Notice") in Pet.App. II at 162. Id.

The Superior Court found that "in the context of discussion between Novak and John, [the notice] meant that if John testified at the Beckwith⁹ [sic] trial in accordance with the prior grand jury testimony, he had use immunity for those statements." Id.

On June 20, 1997, during the Beckford trial, Novak sent FBI Special Agent Gerald Green ("Green"), who is responsible for coordinating witnesses for trial and assessing their demeanor for testifying, to reinterview John. Id. The interview took place in the U.S. Marshalls office in the courthouse, a well-lit room. approximately eight feet by six feet. Id. at 6. John appeared agitated and Green inquired whether John was concerned that the Beckford defendants knew something about which John had not revealed to law enforcement. Id. John responded in the affirmative and said that he killed Lezmore Bufong in Boston.¹⁰ Id. Green terminated the interview and reported the information to Novak. Id.

Novak decided not to call John as a witness because of this revelation about the Bufong murder and because the Beckford case was proceeding well. Id. Green sent his report of the June 20th interview to law enforcement officials in Boston. Id.

In 1998, John was indicted in Massachusetts Superior Court for Suffolk County for the Bufong murder, charged with murder in the first degree and possession of a firearm without a license. Id.; Pet. Mem. at 1. An evidentiary hearing on John's motions to suppress and dismiss was held on September 5, 2001. Pet. Mem. at 1. The Superior Court denied those motions on December 27, 2001. Id. Trial began on July 15, 2003 and on July 22, 2003, John was found guilty of murder in the first degree but was acquitted of the firearms charge. Id. He was sentenced to life in prison. Habeas Pet. at 1.

John appealed his conviction to the Supreme Judicial Court but was denied on August 10, 2004. Pet. Mem. at 1. John did not seek certiorari from the United States Supreme Court within the allotted ninety days and so has exhausted his state appeals. Id. John filed a petition for writ of habeas corpus and supporting memorandum in this Court on August 9, 2005. See Habeas Pet. at 1.

III. DISCUSSION

A. Standard of Review

There are two potential bases for granting an application for a writ of habeas corpus under 28 U.S.C. § 2254: the state adjudication

1) 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; or

2) resulted in a decision that was based, on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court decision is contrary to clearly established Supreme Court precedent if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently from a decision of the Supreme Court on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A state court decision is considered an unreasonable application of Supreme Court precedent if the state court identifies the correct legal rule but unreasonably applies it to the facts. Id. at 407, 120 S.Ct. 1495. An unreasonable application exists when there is "some increment of incorrectness beyond error." Norton v. Spencer, 351 F.3d 1 at 8 (1st Cir.2003). A state court decision is "unreasonable if it is devoid of record support for its conclusion or is arbitrary." Id.

A habeas petitioner can overcome a state court's...