Justice E. Ainooson v. Gelb, Civil Action No. 11–11002–WGY.

• Decision Date: 30 September 2013
• Docket Number: Civil Action No. 11–11002–WGY.
• Parties: Justice E. AINOOSON, Petitioner, v. Bruce GELB, Respondent.
• Court: U.S. District Court — District of Massachusetts

973 F.Supp.2d 105

Justice E. AINOOSON, Petitioner,

v.Bruce GELB, Respondent.

Civil Action No. 11–11002–WGY.

United States District Court, D. Massachusetts.

Sept. 30, 2013.

Justice E. Ainooson, Concord, MA, pro se.

Todd M. Blume, Office of the Attorney General, Pamela L. Hunt, Attorney General's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Justice E. Ainooson (“Ainooson”) was convicted of second-degree murder, carrying a firearm without a license, and possession of a firearm without a federal identification card in October 2007 after a jury trial in the Massachusetts Superior Court (the “Superior Court”), sitting in and for the County of Plymouth. Resp't's Mem. Law Opp'n Pet. Writ Habeas Corpus (“Habeas Opp'n”) 1–2, ECF No. 19; see also Commonwealth v. Ainooson, No. 08–P–1592, 77 Mass.App.Ct. 1121, 2010 WL 3564858, at *1 (Mass.App.Ct. Sept. 15, 2010). After appealing his convictions in the Massachusetts courts, Ainooson filed a petition for a writ of habeas corpus seeking relief on four grounds: (1) the prosecution's closing argument violated his constitutional right to remain silent; (2) the jury instructions were confusing and denied him due process; (3) the cumulative effect of the errors at his trial, including an allegedly coercive supplemental jury instruction,denied him due process; and (4) legally inconsistent verdicts violated the Fifth, Sixth, and Fourteenth Amendments of the Constitution. Pet. 28 U.S.C. § 2254 Writ Habeas Corpus Person State Custody (“Pet.”) 7–11, ECF No. 1.

A. Procedural Posture

On October 27, 2007, Ainooson received a life sentence in state prison for his conviction of second-degree murder. Pet.; Resp't Bruce Gelb's Answer (“Answer”) ¶¶ 2–3, ECF No. 9. The Superior Court also sentenced Ainooson to a concurrent term of between two and three years for carrying a firearm without a license and declared that he had served the one-year sentence for possession of ammunition without having a firearm identification card. Id. Ainooson appealed the convictions to the Massachusetts Appeals Court (the “Appeals Court”), which affirmed the Superior Court's judgment on September 15, 2010. Ainooson, 2010 WL 3564858, at *4. The Massachusetts Supreme Judicial Court (the “Supreme Judicial Court”) denied Ainooson's application seeking further appellate review, Commonwealth v. Ainooson, 458 Mass. 1108, 938 N.E.2d 890 (2010) (mem.), and the Supreme Court denied his petition for a writ of certiorari on April 25, 2011, Ainooson v. Massachusetts, ––– U.S. ––––, 131 S.Ct. 2157, 179 L.Ed.2d 942 (2011) (mem.).

Ainooson filed a petition for habeas corpus relief pro se in this Court on June 6, 2011, Pet., and thereafter submitted a supporting memorandum, Mem. Supp. Pet'r's Writ Habeas Corpus (“Mem. Habeas”), ECF No. 13. The Commonwealth answered Ainooson's petition, Answer, and manually filed a Supplemental Answer containing a transcript of Ainooson's trial, as well as the briefs associated with his appeals to Massachusetts courts, see Supplemental Answer; see also Notice Filing Supplemental Answer, ECF No. 10. The Commonwealth also submitted a memorandum opposing Ainooson's petition, Habeas Opp'n, and Ainooson responded thereto, Pet'r's Reply Resp't's Mem. Law Opp'n Pet'r's Mem. Law Supp. Pet'r's Writ Habeas Corpus (“Resp. Habeas Opp'n”), ECF No. 22.

B. Factual Background¹

On the afternoon of June 17, 2005, Calvin Stewart (“Stewart”) went to the Country Foods store in Brockton, Massachusetts, with his girlfriend LaSheena Terrio (“Terrio”) and friend Jamell Spurill (“Spurill”). See II Supplemental Answer, Tab 19, Trial Tr. vol. III, 169, Oct. 19, 2007. They were parked in the Country Foods store's parking lot. Terrio wanted cigarettes, which Spurill purchased for her because she lacked identification. Id. at 170–71. When Spurill returned to the car, he sat in the back seat of the car behind Stewart, who was seated in the front passenger seat. Id. at 171. Terrio was in the driver's seat. Id.

Around this same time, Brockton School Police Officer Mark Noone (“Noone”) was driving home from work after his shift ended at 3 PM. I Supplemental Answer, Tab 18, Trial Tr. vol. II, 178–79, Oct. 18, 2007. He was driving in his personal vehicle, still in uniform, when he stopped at a red light on West Ashland Street near the Country Foods store. See id. at 178, 181. As Noone was waiting for the light to turn green, he heard loud gunshots to his right and saw a man, later identified as Ainooson, firing a gun into a parked car in front of the convenience store. Id. at 182, 184–85. After hearing the initial gunshot, Noone saw Ainooson fire three or four more shots in a row as Ainooson moved backwards along the sidewalk. Id. at 183, 197. Noone then saw Ainooson come towards him, tuck his gun in his pants, and jog away from where he had fired the gun. Id. at 183. Noone jumped out of his blue Ford Explorer and yelled, “Police. Don't move.” Id. at 179, 184:14–15. Noone testified that Ainooson “looked at [him] with a very surprised look and took off running up the street.” Id. at 184:15–17. After a foot chase, Noone caught Ainooson as he was attempting to jump a fence in the backyard of a house on West Ashland Street. Id. at 189. Ainooson told Noone that he had tossed his gun, which other officers later located in the same backyard. Id. at 190–93.

While Ainooson admits that he fired the shots that ultimately killed Stewart and wounded Spurill, the reason that Ainooson fired them is unclear. Ainooson asserts that Stewart and Spurill accused him of having a close relationship with someone called Cooked and were calling him a bitch. II Supplemental Answer, Tab 21, Trial Tr. vol. V, 59–60, Oct. 23, 2007. He was fed up and walked away from the car in which Stewart and Spurill were seated. Id. at 60. According to Ainooson, Stewart called him “nigger” as he was walking away; when Ainooson turned around, he saw what looked like a small black revolver pointed at him. Id. at 61. After Stewart fired at him once, Ainooson says he pulled out his gun and started firing back. Id. at 63–64. Ainooson testified that he aimed at the front passenger seat area, where Stewart was seated. See id. at 65.

According to Terrio, Ainooson stood by the passenger side of the car and “had words” with Spurill. Trial Tr. vol. III, 173:5; see id. at 173. They both said “[w]hat's up” to each other, id. at 173:8–9, before Ainooson walked away, turned around, and then started shooting into the passenger seat window. Id. at 173–74. Terrio said that Stewart had a gun located near the console in between the car's driver and passenger seat and that Spurill did not have a weapon. See id. at 173, 174. Terrio said she ducked during the shooting before grabbing Stewart's gun located between the console and the seat. Id. at 175–76. She saw Stewart in the passenger seat with his eyes closed and started to chase Ainooson with the gun. Id. at 177. She stopped the chase and returned to the parking lot when she saw a police officer chasing Ainooson. Id. at 177–78. At that point, Spurill had moved to the driver's seat and was driving out of the parking lot. Id. at 178. Terrio said she then ran through a little path near the Country Foods store and threw the gun under a truck before calling her brother to take her to the hospital. Id. at 179–80. Stewart's gun was never recovered, and Terrio testified that his gun was not fired that day. Habeas Opp'n 7; Trial Tr. vol. III, 182. Terrio also testified that Stewart had cocaine with him in the car that day. Trial Tr. vol. III, 168.

At trial, Spurill denied any knowledge of a gun or cocaine in the car. Id. at 64. He also denied seeing the gunman. Id. at 70. When the shots were fired, Spurill said he ducked in the back seat of the car but was shot in the arm and in the side. Id. at 69. He said he was sitting behind the driver's seat when he heard five or six shots fired. Id. After he drove out of the parking lot with Stewart in the passenger seat, Spurill could tell that Stewart had been shot and was nudging him to try to get him to talk. See id. at 74. Rather than drive to a nearby ambulance station, id. at 75, Spurill drove to Green Street, where he and Stewart were living, id. at 74–75; Habeas Opp'n 7. He got someone's attention to call an ambulance or the police. See Trial Tr. vol. III, 76–77. Stewart was not moving or responding to Spurill. Id. at 77.

Officer Alcides Fortes arrived at Green Street and saw Spurill, wounded and pacing, and Stewart, who “had blood all over him and ... was slumped over the seat.” II Supplemental Answer, Tab 20, Trial Tr. vol. IV, 31:4–5, Oct. 22, 2007; see id. at 30, 31. Stewart had four gunshot wounds; two wounds were located on the left side of the chest, one was on the right upper-back, and one was in the right forearm. Id. at 160. A medical examiner testified that the two gunshot wounds in the chest were the cause of Stewart's death. Id. at 170.

Ainooson's gun was a 380 High Point medium caliber semi-automatic hand gun with an extended magazine that held ten cartridges. Id. at 210–11. When the police recovered the gun, it had four live rounds in the magazine and a round that had been ejected from the chamber of the gun. Id. at 197. A ballistics expert found five spent cartridges during the investigation—three were in the Country Foods store parking lot and two were found in the victims' car. See id. at 193–95, 198, 200, 215. The expert determined that all of the spent cartridges had been fired from Ainooson's gun. See id. at 215–16. Based on the location of those spent casings, the expert opined that Ainooson had fired the gun in close proximity to the front passenger window of the car. Trial Tr. vol. V, 11. The expert also recovered five bullets, some of which were damaged. Habeas Opp'n 8. Due to the damage, the expert could not positively state that each bullet was fired from Ainooson's gun, but he did conclude that all of the...