Lebon v. US, Civ. A. No. 94-11486-DPW.

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: FUSTE, , Sitting by Designation
• Citation: Lebon v. US, 899 F. Supp. 722 (D. Mass. 1995)
• Decision Date: 30 March 1995
• Docket Number: Civ. A. No. 94-11486-DPW.
• Parties: Peter A. LEBON, Petitioner v. UNITED STATES of America, Respondent.

899 F. Supp. 722

Peter A. LEBON, Petitioner v. UNITED STATES of America, Respondent.

Civ. A. No. 94-11486-DPW.

United States District Court, D. Massachusetts.

March 30, 1995.

Peter A. Lebon, Lewisburg, PA, petitioner pro se.

Christopher F. Bator, Asst. U.S. Attorney, Donald K. Stern, United States Attorney, D. Massachusetts, Boston, MA, for Respondent.

OPINION AND ORDER

FUSTE, District Judge, Sitting by Designation.

Petitioner, Peter LeBon, has submitted a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 (1988), requesting this court to vacate his conviction for possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (1988). Petitioner claims that he did not receive effective assistance of counsel at trial and that the court improperly allowed the prosecution to go into the nature of petitioner's prior felony conviction. He also claims that prosecutorial misconduct contaminated the verdict and the court denied petitioner his sixth-amendment right to confront adverse witnesses. Having reviewed the trial transcript, we conclude that LeBon's conviction should stand.

I. Facts

Petitioner was tried and convicted before this court in May 1992 for the unlawful possession of a firearm. Pursuant to 18 U.S.C. § 924(e)(1) (1988), this court sentenced LeBon to 240 months of incarceration with five years of supervised release. This conviction was based on events that transpired during the afternoon of August 12, 1990, in Mashpee, Massachusetts.¹

In the mid-afternoon of August 12, 1990, petitioner, a Mashpee resident who was known in the community by his nickname, "Musky", traveled locally to Attaquin Park with his friend, Tina Pina. While atop a beachside hill located within the park, petitioner initiated a verbal confrontation with Thomas Maddox, a man with whom petitioner had had an argument the previous evening. As tempers flared, petitioner, still in his car, yelled either, "Clear the kids off the hill! I'm coming back with something for you!" or, "Clear the kids off the hill! I'm coming back with a gun!" The petitioner then sped off.

Shortly thereafter, Howard Nield, the Mashpee Director of Beaches, arrived at Attaquin Park on routine patrol. Upon his arrival, he was surrounded by approximately seven or eight park goers who informed him of the petitioner's confrontation with Mr. Maddox and of the threat to return made by the petitioner. Mr. Nield then radioed the Mashpee police dispatcher that "Musky" and Tommie Maddox had had an argument on the hill and that Musky had just left in his blue Dodge Daytona for some nearby condominiums with a declared intent to return with a gun. (Tr. 1:66-68). Shortly thereafter, Detective Scott McCabe arrived at the park, learned from Mr. Nield of the incident on the hill, and, with the aid of Patrolman Randy DeMello, initiated a search for petitioner in the area around Tina Pina's condominium. (Tr. 1:69, 166-68).

Petitioner and Tina Pina had already left the area of Attaquin Park for the neighboring town of Falmouth. (Tr. 1:94). After stopping at the store for a few minutes to purchase a fan and some popsicles, petitioner and Tina Pina proceeded in the direction of Mashpee to the home of Ramona Cardoza, a woman with whom the petitioner was then living. (Tr. 1:97-98). While Tina Pina remained in the car, petitioner entered the house and, a few minutes later, returned to the car. As petitioner and Tina Pina then continued toward Mashpee, petitioner spotted Stefan Pina, a friend of the petitioner, near a pay phone.² At petitioner's suggestion, Mr. Pina agreed to take the wheel in joining the petitioner and Tina Pina on their drive. (Tr. 1:98).

The group continued on Route 130, Great Neck Road, passing officers McCabe and DeMello near the turnoff for Attaquin Park. (Tr. 1:102). As petitioner's car signaled its turn into Attaquin Park, the officers directed the car to pull over. (Tr. 1:171). Mr. Pina pulled into the lot of a nearby auto shop where he then stopped the car. (Tr. 1:171-72). As Mr. Pina pulled over, Tina Pina, who had been looking back toward the police car, looked forward to the front seat. (Tr. 1:102-03). On the front seat, Ms. Pina saw a small handgun which, at petitioner's command, she stashed in the front of her pants. (Tr. 1:104).

When the officers approached, they ordered all occupants out of the car. The officers frisked Mr. Pina, finding no weapon. (Tr. 1:172-74). Officer McCabe then asked petitioner whether he had had a verbal confrontation at the park with Tommie Maddox. (Tr. 1:174). The petitioner confirmed that he had had such a confrontation. (Tr. 1:174). The officers then frisked LeBon, again finding no weapon. (Tr. 1:174). Tina Pina refused a pat search until a matron could be summoned to conduct the search. (Tr. 1:174). The officers then directed Tina Pina to stay beside a nearby flowerbox while awaiting the arrival of the matron. (Tr. 1:175).

While conducting a search of the vehicle, Officer DeMello noticed that Tina Pina, who had her back to the officers, was patting something in the flowerbox beside which she was standing. (Tr. 1:176). As the officers walked over to Tina Pina to investigate, they found that she had a loaded magazine of ammunition protruding from her waistband. (Tr. 1:176). Officer McCabe grabbed Ms. Pina's arms while Officer DeMello unearthed the handgun that Ms. Pina had been trying to bury in the flowerbox. (Tr. 1:177). Ms. Pina then explained to Officer McCabe that petitioner had handed her the gun. (Tr. 1:180, 221). On the basis of this information, the police proceeded to arrest the petitioner. Id.

II. Effective Assistance of Counsel

Petitioner asserts that he was denied his sixth-amendment right to effective assistance of counsel during the trial because his attorney failed to investigate certain facts which petitioner believed would provide a basis for impeaching the adverse testimony of Tina Pina. Petitioner also claims that counsel's failure to call certain witnesses at trial constituted a violation of the petitioner's right to effective assistance of counsel. After explaining the applicable rule of law, we analyze each of petitioner's ineffective assistance of counsel claims.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1983), provides the applicable bipartite standard for review of ineffective assistance of counsel claims. Strickland first requires that,

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.

Id. at 690, 104 S.Ct. at 2066. Second, this highly deferential standard requires that the petitioner show that the acts or omissions of counsel proved prejudicial to the petitioner. Id. at 691, 104 S.Ct. at 2066. This second element requires that a defendant show that, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

A. Failures to Investigate

1. Telephone Block

LeBon first alleges that, in violation of his right to effective assistance of counsel, his attorney failed to investigate telephone records that would have allowed counsel to impeach certain adverse testimony of Tina Pina. See Docket Document No. 1 at 14. At trial, Tina Pina testified that approximately two weeks after petitioner's arrest, petitioner called her at home from the Barnstable House of Correction to explain that he was sorry, that he did not want her to take the blame for the gun, and that he would confess to having been in possession of the gun. (Tr. 1:111). Petitioner claims that counsel failed to investigate his claim that the telephone company had placed a service restriction on Tina Pina's telephone that prevented her from placing long-distance calls or accepting collect calls. Petitioner argues that this evidence could have been used to impeach Tina Pina's testimony by proving that petitioner could not have placed the call to which Ms. Pina testified because the telephones at the Barnstable House of Correction permit only collect calls.

Tina Pina herself provided the explanation for the apparent incongruity of circumstance and testimony to which petitioner appeals: The petitioner had had a telephone installed in Ms. Pina's apartment under his former name, Melvin Ross, for the purpose of accepting his calls from jail. (Tr. 1:141, 150). Petitioner allegedly used this phone to speak with Tina Pina and to have Ms. Pina place three-way telephone calls to others of the petitioner's friends. (Tr. 1:139). As this telephone was installed for the purpose of accepting petitioner's calls from jail, we surmise that this was not the same phone upon which the telephone company had allegedly placed the service restriction from one year prior to petitioner's incarceration. Moreover, we cannot imagine how the $926.43 January phone bill presented in court could have been generated from a phone which had a block on collect calls and long-distance service. (Tr. 1:139). Instead, the evidence suggests that petitioner discovered the block on Tina Pina's phone when he attempted to call her from jail, solving this problem by having a new phone installed under a former name.

If counsel failed to play along with petitioner's attempt to deceive the court, counsel ought properly to be commended, having served the court much better than his client serves himself. Instead, counsel used the testimony regarding the phone bill and telephone calls to show that Tina Pina had formed an emotional attachment to the petitioner sufficiently strong that petitioner's subsequent return to Ramona Cardoza may well have spawned resentment in Tina Pina that would motivate her to lie in court. (Tr. 138-47)....