Logan v. Gelb

• Decision Date: 15 June 2015
• Docket Number: No. 14–2050.,14–2050.
• Citation: 790 F.3d 65
• Parties: Julian Castle LOGAN, Petitioner, Appellant, v. Bruce GELB, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

790 F.3d 65

Julian Castle LOGAN, Petitioner, Appellant

v.Bruce GELB, Respondent, Appellee.

No. 14–2050.

United States Court of Appeals, First Circuit.

June 15, 2015.

Dana A. Curhan on brief for appellant.

Ryan E. Ferch, Assistant Attorney General, Criminal Bureau, and Maura Healey, Attorney General of Massachusetts, on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BARRON, Circuit Judges.

Opinion

PER CURIAM.

Julian Castle Logan (formerly known as Joao Pedro Barbosa Jr.) was convicted in 2007 in Massachusetts state court of living off or sharing the earnings of a minor prostitute in violation of Massachusetts law. After twice being rebuffed by the Massachusetts Appeals Court, see Commonwealth v. Barbosa, No. 08–P–1620, 2010 WL 680349 (Mass.App.Ct. Mar. 1, 2010) (Barbosa I ); Commonwealth v. Barbosa, No. 12–P–37, 2013 WL 1103912 (Mass.App.Ct. Mar. 19, 2013) (Barbosa II ), Logan filed a petition for a writ of habeas corpus in federal court in 2013 seeking to invalidate his conviction on a number of grounds. The district court denied the petition, concluding that none of Logan's arguments satisfied the exacting standards that govern habeas review of a state court conviction. Logan v. Gelb, 52 F.Supp.3d 122 (D.Mass.2014). We affirm.

I.

On federal habeas review, the findings of fact of a state court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1) ; see Sumner v. Mata, 455 U.S. 591, 592–93, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curiam). We take the facts as presented by the Massachusetts Appeals Court which affirmed Logan's conviction, Barbosa I, 2010 WL 680349, at *1–2, supplemented with other record facts consistent with the state court's findings. Scoggins v. Hall, 765 F.3d 53, 54 (1st Cir.2014).

On the evening of February 23, 2004, Lawrence Hall, a detective with the Everett police department, was near Beecham Street, an area in Everett known for prostitution activity. Detective Hall witnessed two young women walking down the road, smiling and waving at passing vehicles. He later saw the two young women enter the back seat of a gray Saab convertible that was parked in a nearby lot.

Detective Hall returned to the Beecham Street area the following night, and again observed one of the two young women—who has been referred to as “Harriet”—smiling and waving at passing vehicles. Detective Hall saw Harriet get into a large delivery truck. Another Everett police detective, Richard Connor, observed Harriet perform oral sex on the truck's driver while the truck was parked across the Everett town line in Chelsea.

After Harriet left the truck, she talked briefly on a walkie-talkie. A white sedan then arrived, which she entered. Harriet left the white sedan approximately ten minutes later. She then walked over to the same gray Saab convertible from the previous night, which was parked in the same lot as the night before, and got in the car.

Once the Saab pulled out of the lot, Detective Hall radioed for a police cruiser to stop the car. The driver of the Saab, Logan (then known as Barbosa), was promptly arrested. Logan had $1,459 in cash on him at the time. Harriet, who was a passenger in the Saab and who was also arrested, had $32 on her.

The Commonwealth charged Logan with one count of living off or sharing the earnings of a minor prostitute in violation of Mass. Gen. Laws ch. 272, § 4B. His first trial, from August 20 to 22, 2007, ended in a mistrial due to a hung jury. His second trial, from September 3 to 6, 2007, resulted in a conviction.

At the second trial, the Commonwealth relied heavily on the testimony of Detective Hall. Detective Hall testified about his decade-long experience on the police force, during which time he had made more than sixty prostitution arrests. He also noted that he had spent the previous half-decade working mostly on narcotics and prostitution cases. And, after being qualified as an expert, Detective Hall testified that the average price for a prostitute's services in the area at the time of Logan's arrest was $40 to $60 for oral sex and upwards of $100 for vaginal intercourse.

Although Harriet did not testify, a social worker, Rosa Andrade, provided testimony regarding Harriet's age. Andrade testified that she had worked with Harriet for two years after Harriet's arrest, and that she had helped Harriet with placements, school, and other services. Andrade explained that she works with adolescents and stated that Harriet was an adolescent. Andrade testified that Harriet's birthday was November 21, 1988, and that she was fifteen years old on February 24, 2004, when she was observed by Detectives Hall and Connor. Defense counsel made no objection to this testimony on hearsay grounds or otherwise. Andrade also testified on cross-examination that she had never seen Harriet's birth certificate and that Harriet was born outside of the United States.

Before the close of the defense's case, Logan moved for a required finding of not guilty on account of insufficient evidence of Harriet's minority, an essential element under Mass. Gen. Laws ch. 272, § 4B. The state trial judge, though noting that it was a “close call,” denied the motion. After the jury returned a guilty verdict, Logan filed a motion for judgment notwithstanding the verdict, which was also denied. On September 20, 2007, Logan was sentenced to five to eight years in prison.¹

Logan appealed and argued, as is relevant here, that there was insufficient evidence to support his conviction. The Massachusetts Appeals Court affirmed his conviction on March 1, 2010. Barbosa I, 2010 WL 680349, at *1. The Massachusetts Supreme Judicial Court (“SJC”) denied Logan's application for leave to obtain further appellate review on September 10, 2010. Commonwealth v. Barbosa, 458 Mass. 1101, 934 N.E.2d 824 (Mass.2010) (table).

Logan then moved for a new trial in the Massachusetts Superior Court on November 11, 2011. The Massachusetts Superior Court denied Logan's motion, and the Massachusetts Appeals Court affirmed this denial on March 19, 2013. Barbosa II, 2013 WL 1103912, at *1. The SJC again denied Logan's application for leave to obtain further appellate review. Commonwealth v. Barbosa, 465 Mass. 1105, 989 N.E.2d 898 (Mass.2013) (table).

Logan next filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Massachusetts on June 26, 2013. On September 25, 2014, the district court found against Logan on every claim, and ordered the petition dismissed. Logan, 52 F.Supp.3d at 131–38. The district court did, however, grant a certificate of appealability as to “each of the issues discussed” in its decision. Now on appeal, Logan presses some but not all of the arguments he made to the district court; he also attempts to raise at least one new claim.

II.

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), sets the standards by which we review collateral attacks of state court convictions.² Scoggins, 765 F.3d at 57. Habeas relief may be granted only if the state court's adjudication of the merits of a petitioner's legal claim (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,” 28 U.S.C. § 2254(d)(1) ; 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,” id. § 2254(d)(2). See also Scoggins, 765 F.3d at 57.

Further, we ordinarily may not second guess a state court's rejection of a claim on the basis of an independent and adequate state procedural rule.See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). And our review is precluded where a habeas petitioner has failed to exhaust a federal claim in the state courts. See Rose v. Lundy, 455 U.S. 509, 515–16, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

A. Proof of Harriet's Age

Logan argues that the Commonwealth “improperly proved a key element of the charged offense”—Harriet's minority—“solely through the use of hearsay.” In this respect, we understand Logan to make two arguments, neither of which is meritorious.

Logan first contends that this reliance on hearsay somehow violated Due Process.³ Logan never made a due process argument in any of his state court proceedings; it is thus not properly exhausted under AEDPA. See 28 U.S.C. § 2254(b)(1)(A). Logan also failed to include this argument in his habeas petition; it is thus waived as well. See Companonio v. O'Brien, 672 F.3d 101, 112 n. 10 (1st Cir.2012). Logan's argument that he received ineffective assistance of counsel does not save his waived and unexhausted due process claim in this case.

Instead, we understand Logan to be raising an independent claim that his counsel was ineffective for failing to object to Andrade's testimony regarding Harriet's date of birth on hearsay grounds. Logan did not make this argument explicitly on direct appeal, but did in his later motion for a new trial. On appeal from the denial of his motion for a new trial, the Massachusetts Appeals Court concluded that it had implicitly “considered and rejected” this argument in his direct appeal. Barbosa II, 2013 WL 1103912, at *2. Whether or not the state courts actually dealt with the claim and so are entitled to deference, this claim fails even on de novo review. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001) (applying “de novo” review to a federal claim that “was never addressed by the state courts”).⁴

Ineffective-assistance claims are governed by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which the defendant must prove two elements. “First, the defendant must show that counsel's performance was deficient,” Strickland, 466 U.S. at 687, 104 S.Ct. 2052, which requires showing that counsel's performance was not only...