Kilburn v. Maloney

• Decision Date: 01 August 2005
• Docket Number: No. CIV.A.98-12156-RGS.,CIV.A.98-12156-RGS.
• Citation: 383 F.Supp.2d 247
• Parties: Andrew W. KILBURN v. Michael T. MALONEY
• Court: U.S. District Court — District of Massachusetts

383 F.Supp.2d 247

Andrew W. KILBURN v. Michael T. MALONEY

No. CIV.A.98-12156-RGS.

United States District Court, D. Massachusetts.

August 1, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas Dee, Attorney General's Office, Boston, MA, for Michael Maloney, Defendant.

Stephen B. Hrones, Hrones & Garrity, Boston, MA, for Andrew W. Kilburn, M.C.I. Cedar Junction, Plaintiff Pro Se.

Natalie S Monroe, Attorney General's Office, Boston, MA, for Michael Maloney, Defendant.

Susanne G. Reardon, Attorney General's Office, Boston, MA, for Larry E. Dubois, Defendant.

MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STEARNS, District Judge.

I have reviewed Magistrate Judge Dein's Report and Recommendation, the petitioner's lengthy objections and supporting materials, and the underlying decisions of the Supreme Judicial Court (SJC) in Commonwealth v. Kilburn (I), 426 Mass. 31, 686 N.E.2d 961 (1997), and Commonwealth v. Kilburn (II), 438 Mass. 356, 780 N.E.2d 1237 (2003). The most significant issue is whether the SJC's determination that the trial judge's error in failing to distinguish between two coterminous assaults, one of which could support petitioner's conviction of felony-murder, while the other could not because of the merger doctrine, gave rise to a substantial risk of a miscarriage of justice. On this and on those other issues properly before the court, I agree with the Magistrate Judge that the State court adjudications did not result in decisions contrary to or involving an unreasonable application of federal law as decided by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). The Magistrate Judge correctly found that: (1) the sufficiency of the evidence standard applied by the SJC in assessing the evidence of the petitioner's knowledge and intent comported with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); (2) that the merger doctrine claim was procedurally defaulted;¹ (3) that petitioner has shown neither cause and prejudice nor a fundamental miscarriage of justice; and (4) that the performance of petitioner's counsel conformed to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I further agree that petitioner's due process argument regarding the alleged shift in position by the Commonwealth on appeal is foreclosed by the First Circuit's decision in Gunter v. Maloney. Petitioner's aim is at the quality of the evidence against him (he claims that its most incriminating aspects were fabricated by the police) and his disagreement with the Magistrate Judge over the extent to which Gunter is controlling in his case.² None of the objections persuade me that there is any error in the Magistrate Judge's analysis and conclusions.

ORDER

For the foregoing reasons, the Magistrate Judge's Report and Recommendation is ADOPTED, and the petition is DISMISSED with prejudice.

SO ORDERED.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The petitioner, Andrew Kilburn ("Kilburn" or the "defendant"), is presently serving a life sentence. He was convicted of murder in the first degree by reason of felony murder for the shooting death of Charles Laliberte ("Laliberte") in Laliberte's home on September 2, 1992. Commonwealth v. Kilburn, 426 Mass. 31, 31-32, 686 N.E.2d 961, 962 (1997) ("Kilburn I"); Commonwealth v. Kilburn, 438 Mass. 356, 356-57, 780 N.E.2d 1237, 1239 (2003) ("Kilburn II"). The underlying felony was an armed assault in a dwelling. Kilburn I, 426 Mass. at 31 n. 1, 686 N.E.2d at 962 n. 1. Kilburn drove the getaway car, and was not present for the actual shooting, which was done by a still unidentified man. Id. at 32-33, 686 N.E.2d at 962-63. Kilburn's conviction was affirmed by the Massachusetts Supreme Judicial Court ("SJC") on October 27, 1997. Id. at 32, 686 N.E.2d at 962.

Kilburn then filed a timely habeas petition with this court pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §§ 2254, et seq., on or about October 26, 1998. Kilburn v. Maloney, 164 F.Supp.2d 113, 115 (D.Mass.2001). The petition was subsequently stayed in order to allow him to seek review by the state courts of unexhausted claims, including whether the underlying felony of armed assault in a dwelling had merged into the crime of murder, thereby invalidating his felony murder conviction. Kilburn raised his unexhausted claims with the state courts by way of a motion for release from unlawful restraint pursuant to Mass. R.Crim. P. 30(a) ("Motion for Release"). That motion, and a motion for reconsideration, were denied by the trial court. Kilburn then sought leave to appeal from a single justice of the SJC.

The single justice allowed Kilburn to appeal two issues to the full bench pursuant to the "gatekeeper" provision of Mass. Gen. Laws ch. 278, § 33E. These issues were "(1) whether the defendant may be convicted of joint venture felony-murder when the acts constituting the predicate felony, armed assault in a dwelling with intent to commit a felony, G.L. c. 265, § 18A, also caused the death of the victim; and (2) whether the defendant waived this issue by failing to raise it in his direct appeal." Kilburn II, 438 Mass. at 357, 780 N.E.2d at 1239. The SJC concluded that the issue had been waived, and reviewed Kilburn's claims under a "substantial risk of miscarriage of justice" standard. Id. at 360, 780 N.E.2d at 1241-42.

The SJC analyzed the facts and concluded that there were at least two assaults committed against Laliberte, both of which "were encompassed within the Commonwealth's theory of the crime," although they had not been separately identified to the jury. Id. at 358, 780 N.E.2d at 1240. According to the SJC, the "first armed assault" occurred when the armed individual entered the apartment brandishing a gun and pushed the victim backward, thereby putting him in fear or apprehension of imminent bodily harm. Id. The second assault was the shooting, which took place shortly thereafter. Id. The SJC ruled that the first assault was not merged into the murder, while the second was merged. Id. at 359, 780 N.E.2d at 1240-41. The court also noted that there was a separate assault on another individual in the apartment, the only eyewitness Alex Loer ("Loer"), which would have been sufficient to sustain the felony murder conviction, although that theory was not presented at trial at all. Id. at 358 n. 3, 780 N.E.2d at 1240 n. 3.

The SJC concluded that the trial judge had erred in his instructions in failing to properly identify the underlying felony, and that the jury may inappropriately have based their "felony-murder conviction on an assault that merged with the fatal shooting." Id. at 361, 780 N.E.2d at 1242. The SJC further found that the error was prejudicial, and "might, in the proper circumstances, give rise to a substantial risk of a miscarriage of justice" because Kilburn may have been convicted of felony murder on the basis of a merged assault, i.e., where there was no independent "felony" to support a "felony murder" conviction. Id. Nevertheless, the court concluded that its examination of the record did not leave it "with a serious doubt whether the result of the trial might have been different had the error not been made" and, consequently, ruled that "the defendant has failed to demonstrate that the error created a substantial risk of a miscarriage of justice." Id. at 362-63, 780 N.E.2d at 1242-43 (internal quotation omitted).

With the state court proceedings now fully exhausted, the stay issued by this court was lifted on January 24, 2003. (Docket No. 72). Kilburn's petition for a writ of habeas corpus (as amended), filed pursuant to 28 U.S.C. § 2254, raises the following grounds: (1) whether the conviction for felony murder violated his due process rights in that there is insufficient evidence to support the conviction (including Kilburn's merger claim); (2) whether Kilburn's constitutional right to effective assistance of counsel was violated by trial and direct appellate counsel's "failure to object to the felony murder instruction on the basis of the merger defense;" and (3) whether his due process rights were violated by "the prosecution's changing its theory on appeal, resulting in a failure to present the underlying felony to the jury in connection with the felony murder charge." Memorandum of Decision and Order on Motions Defining the Scope of the Habeas Corpus Petition (Docket No. 86) at 13.³ For the reasons detailed herein, and because this case is controlled in large part by Gunter v. Maloney, 291 F.3d 74 (1st Cir.2002), this court recommends to the District Judge to whom this case is assigned that the petition for a writ of habeas corpus be DENIED.

II. STATEMENT OF FACTS⁴

The Underlying Crime

The defendant, Andrew Kilburn, was indicted by a Suffolk County Grand Jury on September 30, 1992 for murder. App. Ex. 1 (Defendant's Brief) at p. 2 and appendix 1. The indictment was in the statutory form prescribed by Mass. Gen. Laws ch. 277, § 79, and read that:

Andrew W. Kilburn, on September 2, 1992, did assault and beat one Charles D.J. Laliberte, with intent to murder him, and by such assault and beating did kill and murder the said Charles D.J. Laliberte.

App. Ex. 1 at appendix 1. A jury trial was held beginning on April 7, 1993, Volterra, J. presiding. Id. at p. 2 and appendix 5. The defendant was represented by Earle C. Cooley, Esq. On April 16, 1993, the jury returned a verdict of guilty of first degree murder. Id. at p. 2 and appendix 9 (verdict slip). As detailed in its response to special questions, the jury based its guilty finding on felony murder, and rejected a finding of "deliberately premeditated [murder] with malice aforethought." Id.

The underlying facts of the crime are fairly straight-forward, and are detailed more fully in Kilburn I and Kilburn II. Briefly, on September 2, 1992, the victim,...