Luna v. Com. of Massachusetts
| Decision Date | 26 August 2002 |
| Docket Number | No. CIV.A. 96-10978-MLW.,CIV.A. 96-10978-MLW. |
| Citation | 224 F.Supp.2d 302 |
| Parties | Carlos LUNA, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
William J. Davis, Davis, Robinson & White LLP, Boston, MA, for Petitioner.
Pamela L. Hunt, Attorney General's Office, Chief, Appellate Division, Boston, MA, for Respondent.
The court has considered the April 30, 2002 Report and Recommendation of the Magistrate Judge (Docket No. 27) and the petitioner's objections to it (Docket No. 28). The Report and Recommendation is persuasive. The state court decisions at issue in Grounds One and Two of the petition were neither "contrary to" nor "unreasonable applications of" clearly established Supreme Court precedent. Although Luna has not objected to the Report with respect to Grounds Three, Four, and Five of the petition, these grounds present issues of state law not cognizable in this action. Accordingly, for the reasons stated by the Magistrate Judge, it is hereby ORDERED that Luna's Petition for Writ of Habeas Corpus (Docket No. 1) is DENIED.
REPORT AND RECOMMENDATION ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS (# 13)
On May 9, 1996, Carlos Luna ("Luna" or the "petitioner") commenced the instant action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22541 (# 1). On March 1, 1999, the respondent Commonwealth of Massachusetts (the "Commonwealth" or the "respondent") submitted a Motion to Dismiss (# 6) and a supporting memorandum in which it argued that the petitioner's petition for writ of habeas corpus should be dismissed because the petitioner had failed to exhaust available state court remedies as to two of the grounds in the petition. On March 26, 1999, the petitioner submitted a Memorandum of Petitioner in Opposition to Motion to Dismiss (# 9) and on September 11, 2000, Judge Wolf issued a Memorandum and Order on the respondent's motion to dismiss (# 10) allowing the motion to dismiss without prejudice on the grounds that the petitioner had exhausted the available state remedies for the fourth ground for his petition, but had not exhausted state remedies for the third ground for his petition.
On October 6, 2000, the petitioner filed a motion for leave to amend his petition for writ of habeas corpus (# 11) requesting that he be allowed to amend his petition by deleting the one issue as to which there had been a failure to exhaust state remedies, and on January 16, 2001, Judge Wolf allowed the petitioner's motion to amend. Thus, on January 16, 2001, the petitioner filed an Amended Petition for Writ of Habeas Corpus (# 13)(the "petition") and on February 27, 2001 submitted a supporting Memorandum of Petitioner (# 15), setting out five grounds on which he argued he was entitled to habeas relief. On July 19, 2001, the respondent submitted a Memorandum of Law in Opposition to the Petition for Writ of Habeas Corpus (# 25) in which it requests that the Court deny the petition. On July 11, 2001, the District Judge to whom the case is assigned referred the petition to the undersigned for the issuance of a report and recommendation as to disposition on the merits pursuant to 28 U.S.C. § 636(b)(1)(B).
In February, 1988, the petitioner, a Boston police officer, applied for a warrant to search the premises of an apartment at 102 Bellevue Street in the Dorchester section of Boston. (# 25, p. 3). In the search warrant application, the petitioner indicated that a specific informant ("IT") had supplied him with information about drug dealing at the Bellevue Street apartment. (Id.). He asserted in his affidavit that IT had provided him information in the past that led to the arrest of two named individuals and that IT had been inside the apartment and had observed a Hispanic male engaging in weighing, packaging and selling cocaine. (Id. at p. 4). The petitioner's partner, Sherman Griffiths, was killed while attempting to execute the warrant. (Id. at p. 3). Albert Lewin ("Lewin") was arrested and charged with the murder of Detective Griffiths. (Id.).
Contrary to the information the petitioner had supplied in the search warrant application, the petitioner actually had not received information from an informant about drug dealing at the Bellevue Street apartment. (Id. at p. 5). A drug purchase was made at that apartment on February 15th by an informant named "Joe" who at the time was working for Sergeant Detective Hugo Amate and another detective. (Id.). The petitioner was not present at that drug purchase. (# 25, p. 5). A drug purchase was also made from that same apartment on February 16th by "Debbie", another informant of Sergeant Amate. (Id.). The petitioner accompanied Debbie into the building, but not to the third floor where the purchase was made. (Id.).
At a probable cause hearing in connection with the murder trial of Lewin, the petitioner testified consistent with statements he had made in his search warrant affidavit. (Id. at p. 6). He also submitted two police reports prior to the probable cause hearing in which he said he himself made the drug purchases on February 15th and 16th. (Id.).
After that, over a period of months, the petitioner met several times with Assistant District Attorney ("ADA") Francis O'Meara ("O'Meara") who was prosecuting the case against Lewin. (Id.). O'Meara told the petitioner that the confidential informant "IT" would have to be produced, and the petitioner responded that he would not disclose IT's identity until ordered to do so by a court. (Id. at pp. 6-7). The petitioner continuously assured O'Meara that IT did exist. (Id. at p. 7).
In August, 1988, in connection with the Lewin case, Superior Court Judge Grabau ordered the disclosure of the identity of IT, and O'Meara told the petitioner about the court's order. (# 25, p. 7). The petitioner prepared and filed a police report containing specific detailed information about a fictitious informant "John" whom the petitioner said was IT. (Id.) Judge Grabau ordered that the informant be produced. (Id.). For the next three months, the petitioner engaged in a "search" for the nonexistent informant John; the petitioner filed fourteen reports detailing his attempts to locate John. (Id.).
Lewin moved to dismiss the murder indictment against him on the ground that the government failed to produce the informant. (Id. at p. 8). At a hearing on this motion, the petitioner testified about his attempts to locate the informant and gave details about his dealings with the informant. (Id.). Judge Grabau dismissed the murder indictment against Lewin on the ground that the government failed to produce a material witness. (Id.).
O'Meara then learned that an informant named Joe Mucci ("Mucci") had participated in the drug buys at the Bellevue Street apartment. (Id.). O'Meara located and interviewed Mucci and then informed police that he thought Mucci was the informant who made the drug buys, thus exposing the petitioner's story as untrue. (Id.). O'Meara moved for a rehearing of the Lewin case dismissal based on his information about Mucci. (# 25, p. 8). Judge Grabau ordered that if the petitioner () chose not to assert his rights, he must file an affidavit concerning his search for the informant. (Id. at pp. 8-9).
Beginning about March 3, 1989, the petitioner met with Attorney Mark Sullivan ("Sullivan") numerous times over the course of nine days to discuss the ramifications of filing a truthful affidavit in response to the court's order. (Id. at p. 9). On March 12, 1989, the petitioner executed an affidavit (the so-called "come clean affidavit") in which he admitted that statements he made on the search warrant application and in the court hearings were not true. (Id.). The petitioner admitted that the search warrant affidavit reflected collective knowledge of the police squad members and that he substituted himself as the drug purchaser in order to protect the informants. (Id. at pp. 9-10). The SJC reinstated the indictments against Lewin, and the petitioner testified at a hearing on a motion to dismiss those indictments that he had lied on the original search warrant affidavit.3 (Id. at p. 10).
At the 1991 trial charging the petitioner with perjury and filing false reports, the petitioner testified consistent with his March 12, 1989 come clean affidavit and his later testimony at the reconsideration hearing in the Lewin case. (# 25, p. 10). That is, he testified that he had lied on the original search warrant affidavit. (Id.). On June 5, 1991, the petitioner was found guilty by a jury of fifteen counts of filing false reports and ten counts of perjury. (Id. at p. 2). A mistrial was declared on the remaining charges of perjury and filing false reports on which no verdict could be reached. (Id.) On June 13, 1991, the court placed the petitioner on probation for five years. (# 15, p. 8.). A condition of probation imposed was that he resign from the Boston Police Department, but that provision was stayed pending appeal. (Id.).
The petitioner appealed the judgments of conviction and filed a motion for a new trial. (Id.). On January 6, 1992, the motion for a new trial was denied, and the petitioner appealed that denial. (Id.). The SJC affirmed the conviction. See Commonwealth v. Luna, 418 Mass. 749, 641 N.E.2d 1050 (1994). (Id.). Thereafter, the petitioner filed the instant petition with this court.4
Title 28 U.S.C. § 2254(d)(1), the applicable habeas corpus statute, provides that:
An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,...
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Luna v. Massachusetts
...substituted himself as the drug purchaser [in the search warrant affidavit] in order to protect the informants." Luna v. Massachusetts, 224 F.Supp.2d 302, 306 (D.Mass. 2002). At the direction of Massachusetts' Supreme Judicial Court ("SJC"), Lewin's indictment was eventually reinstated, Com......