John v. Russo, 06-2594.

• Decision Date: 02 April 2009
• Docket Number: No. 06-2594.,06-2594.
• Citation: 561 F.3d 88
• Parties: Dwight JOHN, Petitioner, Appellant, v. Lois RUSSO, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

561 F.3d 88

Dwight JOHN, Petitioner, Appellant, v. Lois RUSSO, Respondent, Appellee.

No. 06-2594.

United States Court of Appeals, First Circuit.

Heard October 5, 2007.

Decided April 2, 2009.

James W. Lawson, with whom Oteri & Lawson, P.C. was on brief for petitioner.

Jonathan M. Ofilos, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General was on brief for respondent.

Before LIPEZ and HOWARD, Circuit Judges, and OBERDORFER,^* Senior District Judge.

HOWARD, Circuit Judge.

Dwight John appeals from the district court's denial of his habeas corpus petition. John was convicted in Massachusetts Superior Court (state trial court) of first-degree murder of Lezmore Buffong¹ and is serving a sentence of life imprisonment. The conviction was affirmed by the Massachusetts Supreme Judicial Court (SJC). Commonwealth v. John, 442 Mass. 329, 812 N.E.2d 1218 (2004). John argues that the federal court erroneously denied his petition because his conviction was based on a confession for which he had been granted informal immunity. We reject this claim and affirm the district court's denial of the petition.

I. Facts

The following discussion of the facts is based on the state court record. See Teti v. Bender, 507 F.3d 50, 53 (1st Cir.2007).

A. John's involvement with the Poison Clan gang

John was a founding member of the Poison Clan, a gang formed in the Brooklyn, New York area. Under the leadership of George Chang, John and other members of the gang, including Dean Beckford, Sean Henry and Winston Gordon, sold large amounts of crack cocaine in the late 1980s.

Eventually, one of the gang members murdered Chang, and the Poison Clan subsequently splintered — Beckford led a faction located in Virginia and John, Henry, and Gordon led a faction located in Boston. Henry was killed not long after Chang, which resulted in the Boston-based Poison Clan temporarily shutting down. Although John and Gordon left Boston soon after Henry's death, unbeknownst to John, Gordon later returned to Boston and started a marijuana distribution operation. To assist him with this operation, Gordon hired Lezmore Buffong.

In mid-December 1990, John visited Boston and encountered Gordon and Buffong. The encounter, friendly at first, turned deadly. On December 15, John and Buffong, who were traveling together in Buffong's car followed by Gordon and another individual, became separated from the others at a traffic light. At some point after this, John murdered Buffong.

Nine days later, John was found driving Buffong's car in New York, and the police recovered two guns and Buffong's wallet in the car. John, however, was not arrested for the murder of Buffong until nearly four years later in 1994, and that charge was later dropped.

B. John's cooperation with city and federal authorities

In 1996, while in custody in New York awaiting trial on a state robbery charge, John contacted New York authorities for the purpose of sharing information about the Poison Clan's criminal activities, including information regarding Chang's murder. John made a statement about Chang's murder that eventually came to the attention of Assistant United States Attorney David Novak, who was building a federal case in Virginia against Beckford and other Poison Clan members. Novak and John's New York attorney arranged to have John transferred to a federal institution in Virginia so that he could be available to give information to Novak about the Poison Clan. They also agreed that Novak would seek to have counsel appointed for John.

The first meeting between John and Novak took place in Virginia in April 1996. At that meeting, Novak advised John that he should be represented by counsel and spent half an hour attempting to persuade John to accept representation. John refused representation. Novak also offered John a "proffer letter" which stated that "nothing contained in the oral proffer will be used against you...." John declined to sign the proffer letter, telling Novak that he just wanted to tell his story. Novak developed the impression that John wanted to "even the score" with Beckford, whom John believed was responsible for Henry's murder. John subsequently gave information about criminal activity by Poison Clan members.

Following that initial interview, John was debriefed on a number of occasions by Novak and by federal agents. John implicated himself in some of the Poison Clan's criminal activity, admitting at one point that he provided the gun that was used to murder Chang. During those interviews, John was asked at various points whether he had ever killed anyone. He consistently answered that he had not.

In May 1996, John testified before a federal grand jury about the Poison Clan's drug operations and about several murders. Prior to this testimony, Novak and John had agreed that, in return for John's cooperation with the federal prosecution, Novak would recommend to the Brooklyn District Attorney ("DA") a favorable treatment in his robbery case. The grand jury transcript itself includes John's acknowledgment of the government's agreement to notify the Brooklyn DA of his cooperation, and further shows that John was warned that he could be prosecuted for perjury if he lied. The transcript contains no references to an immunity agreement. After Novak informed the Brooklyn DA of John's cooperation, John's pending plea deal in the Brooklyn robbery case was reduced from five-to-ten years to three-to-five years incarceration.

In October 1996, Beckford and others were indicted for multiple homicides, as well as for racketeering, conspiracy, and engaging in a continuing criminal enterprise. At around this time, John, still in prison in Virginia, began acting strangely. He reportedly walked around naked, threw fecal matter about, poured milk on his head, cut himself, banged his head against a wall, and tied a string around his neck in an apparent attempt to commit suicide.

We pause here to note that several indicted Poison Clan defendants were incarcerated in the same facility as John. The state trial court that heard John's motion to suppress during the later murder prosecution against him observed that there was evidence that John was malingering in order to avoid testifying against the Beckford defendants.

After receiving reports of John's bizarre behavior, Novak visited him in the correctional facility. John told Novak that he would not testify at the Beckford trial. Novak responded that he could compel John to testify by granting him immunity, thus stripping him of his Fifth Amendment privilege not to testify.²

As part of his trial preparation, Novak filed notices about prospective government witnesses concerning their criminal histories, and any rewards or inducements made in exchange for their testimony. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The notice filed with respect to John, sent to counsel for the Beckford defendants in May 1997 (the "1997 notice"), explained the arrangement with the Brooklyn DA. The notice also stated that John "has been informed that he has use immunity for his statements, meaning that anything he says cannot be held against him in any fashion."

John, however, did not testify at trial. On June 20, 1997, the week before he was scheduled to testify, John was visited by an FBI agent. The agent noticed that John seemed agitated and asked him whether the defendants knew something about him that the government did not that might come up at trial. At that point, John told the agent that he had killed Buffong in Boston. The agent notified Novak of the confession, and Novak elected not to call John as a witness. The agent also notified the Boston police.³

C. Trial court suppression hearing and prosecution of John

After John was indicted in 1998 in Massachusetts for Buffong's murder, he sought to suppress his confession. At the suppression hearing, Novak testified that his promise of immunity to John was conditional upon John testifying at the Beckford trial, and then only for his trial testimony. The confession was admitted, and after a trial John was found guilty of first-degree murder. On direct review of the conviction the SJC upheld the trial court's conclusion that John did not have immunity from the use of his confession against him.

After exhausting his state remedies, John filed a petition for a writ of habeas corpus with the district court. The district court denied John's petition but issued a certificate of appealability under 28 U.S.C. § 2253(c).

II. Discussion

We review the district court's denial of a habeas petition de novo. See Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.2006) (citing Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir.2003)).

Federal habeas review of a state court decision is conducted under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Niland v. Hall, 280 F.3d 6, 11 (1st Cir.2002). Under AEDPA, a federal court can grant habeas relief only where a state court adjudication:

(d)(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). Subsection 2254(e)provides that:

a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. John first argues for relief under subsection 2254(d)(2)

and (e), and then under (d)(1). As to §§ 2254(d)(2) and (e), he argues that the trial court's factual finding — that John's confession was not obtained under a grant of immunity — was...