Lee v. Corsini

• Decision Date: 26 January 2015
• Docket Number: No. 14–1070.,14–1070.
• Citation: 777 F.3d 46
• Parties: Robert M. LEE, Petitioner, Appellant, v. Michael CORSINI, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

777 F.3d 46

Robert M. LEE, Petitioner, Appellant

v.Michael CORSINI, Respondent, Appellee.

No. 14–1070.

United States Court of Appeals, First Circuit.

Jan. 26, 2015.

Mary T. Rogers, for appellant.

Anne M. Thomas, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before HOWARD, SELYA and STAHL, Circuit Judges.

Opinion

STAHL, Circuit Judge.

A jury convicted Petitioner–Appellant Robert M. Lee of murder in the first degree for the 1976 death of Angel Santos Davila. The Massachusetts Supreme Judicial Court (“SJC”) affirmed Lee's conviction on direct appeal. See Commonwealth v. Lee, 383 Mass. 507, 419 N.E.2d 1378 (1981). After several unsuccessful motions for a new trial in state court, Lee filed a petition for habeas corpus relief in federal district court, arguing that his attorneys at both trial and postconviction proceedings were constitutionally ineffective and that prosecutorial misconduct tainted his case. The district court denied habeas relief as well as Lee's motion for discovery, holding that all of Lee's claims had been procedurally defaulted. After careful consideration, we hold that the claim of ineffective assistance of postconviction counsel has not been procedurally defaulted, but that 28 U.S.C. § 2254(i) constitutes an independent bar to habeas relief on this ground. We accordingly affirm.

I. Facts & Background

A. Underlying crime

We set forth the facts as recounted by the SJC in affirming Lee's conviction on direct appeal, supplemented by other consistent facts in the record. Yeboah–Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir.2009).

Janet Brady hired Lee to kill her boyfriend Angel Santos Davila, with whom she lived.¹ Brady testified at trial that her relationship with Davila began deteriorating in the spring of 1976, and that, by the summer, she had resolved to “find someone to pay to do him harm.” She contacted Robert DeCot, the manager of a local bar, who put her in touch with Lee. Lee was known to DeCot as a patron of his bar; Brady, too, was already acquainted with Lee, as he was a customer at the Fort Devens credit union where she worked as a loan officer. Over the days leading up to Davila's shooting, Brady and Lee met several times at local bars and in the back office of the credit union. During these meetings, they made plans to “take care of” Davila and discussed payment. Lee demanded $500 upfront, plus an additional $2000; Brady complied.

Davila was shot at approximately 8:45 p.m. on Thursday, August 26, 1976. People attending a pool party at the house next door to Brady and Davila's heard shots ring out, as well as the sound of a car with a noisy muffler driving away. An “old car, making a lot of noise” and “reddish” in color was seen driving away very fast. Lee's wife, who was out of town at the time of the shooting, owned a red Toyota, which Lee had been seen driving that week.

Police recovered one yellow Sears shotgun shell, determined to have come from a 20–gauge shotgun, outside Davila's house, as well as No. 8 shot lead fragments from the stairway inside the house; similar lead fragments also were extracted from Davila's body during the autopsy. There was testimony at trial that although Lee had loaned his shotgun to a friend, he picked it up sometime between August 23 and 26. When police arrested Lee on August 29, they found in his closet a 20–gauge Remington shotgun and five yellow Sears 20–gauge shotgun shells filled with No. 8 shot.

Lee presented an alibi defense:

Lee offered his own and corroborating testimony that he was at a bar some distance away from the victim's home from eight o'clock until well after nine on the evening in question. He sought to show that he was not driving his wife's red Toyota but a jeep that night, that the Toyota was not old or noisy, and that he did not recover his shotgun until Friday, August 27, the day after the shooting. Lee's version of his contact with Janet Brady was that she asked him to collect money from a Mr. “Warner.” He claimed Brady concocted the story of the conspiracy with Lee in order to protect her son or someone else who actually shot Davilla [sic].

Lee, 383 Mass. at 509, 419 N.E.2d 1378. After a six-day trial in May 1977, the jury rejected this defense and found Lee guilty of murder in the first degree.

B. Direct appeal

On appeal, Lee challenged the denial of his motion to suppress and motion for a directed verdict, as well as the jury instructions on malice and the trial judge's failure to instruct on manslaughter. The SJC affirmed Lee's conviction in 1981, finding no merit to any of his arguments.

C. Postconviction proceedings

Postconviction proceedings have extended over four decades since Lee's conviction was affirmed on direct appeal. Lee filed his first motion for a new trial, through counsel, in July 1983. After that attorney was disbarred, another lawyer took over his case and filed a substitute motion for a new trial in August 1989. That motion raised claims of ineffective assistance of counsel, based on a failure to investigate Lee's purported lack of criminal responsibility as a result of mental impairment

sustained in the Vietnam War; ineffectiveness of counsel in cross-examining witnesses and failing to request a jury instruction on misidentification; and error in the jury instructions on reasonable doubt and malice. The motion was denied without a hearing in February 1990.

Lee subsequently filed a pro se motion to reconsider that decision, which also added several claims centering on his lack of criminal responsibility and incompetence to stand trial, and ineffective assistance of counsel for failure to raise those claims. This motion, too, was denied without a hearing. Lee sought leave to appeal, and a hearing was held before a single justice of the SJC in November 1992. The single justice, acting as gatekeeper, declined to let the appeal proceed to the full court.²

Lee filed another pro se motion for a new trial in September 1995, also requesting that counsel be assigned to him. Although his motion for the appointment of counsel was allowed, none was assigned and, for reasons that are unclear from the record, no further action was taken on Lee's case for over seven years. Mary Rogers, Lee's current attorney, was appointed as new counsel in February 2003; in September 2004, she filed a new motion for a new trial to substitute for Lee's pro se filing.

The 2004 motion for a new trial took a new tack. Instead of focusing on Lee's alleged lack of criminal responsibility and claimed error in jury instructions, this motion asserted numerous instances of ineffective assistance of counsel—at both trial and postconviction stages—as well as prosecutorial misconduct as grounds for a new trial.³ In connection with this motion, Lee also filed motions for discovery, in attempt to obtain documents such as police reports, ballistics records, grand jury minutes, and the victim's statements to police, which state prosecutors and law enforcement officers purportedly had not provided. The court denied the motion for new trial in September 2005 without explicitly addressing the motions for discovery. Lee sought leave to appeal the denial of the motion before a single justice of the SJC. Finding that the appeal did not raise “a new and substantial question,” Mass. Gen. Laws ch. 278, § 33E, the single justice, in July 2006, declined to let the appeal proceed to the full court.

Lee, through current counsel, filed a petition for a writ of habeas corpus in the district court in July 2007, raising much the same claims as the 2004 motion presented. Lee also filed several ancillary motions, including a motion for discovery, motion for an evidentiary hearing, and motion for criminal records of witnesses. The district court held a non-evidentiary hearing in March 2009, and subsequently denied Lee's motions. For reasons that are unclear from the record, the district court's final memorandum and order denying habeas relief did not issue until December 2013, nearly six-and-a-half years after Lee filed the petition.

Applying our decision in Costa v. Hall, 673 F.3d 16, 22–25 (1st Cir.2012), the district court held that all of Lee's claims had been procedurally defaulted, since, as the single justice of the SJC had determined, they failed to overcome the “new and substantial question” hurdle of Mass. Gen. Laws ch. 278, § 33E. See Lee v. Corsini, No. 07–11316–MLW, 2013 WL 6865585, at *11 (D.Mass. Dec. 24, 2013). As “denial of review under § 33E [due to procedural waiver] is an independent and adequate state ground that bars federal habeas review,” Simpson v. Matesanz, 175 F.3d 200, 206 (1st Cir.1999), the district court declined to reach the merits of Lee's claims, finding neither cause for nor prejudice from the procedural default, nor any fundamental miscarriage of justice to excuse the default.

Thus, after a long and tortuous process involving sometimes inordinate delay, this appeal has finally reached us, over thirty-eight years after the shooting of August 26, 1976.

II. Analysis

We review a district court's denial of a habeas corpus petition de novo. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.2006).

Because, as a general matter, “[a] federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment,” Walker v. Martin, 562 U.S. 307, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011) (second alteration in original) (internal quotation marks omitted), we look to the “last reasoned opinion” of the state court to discern the grounds for its decision. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

The last reasoned opinion here is the 2006 decision of the single justice of the SJC, who ruled that Lee's appeal from the denial of his 2004 motion for a new trial did not present “a new and substantial question which ought to be determined by the full court.”...