Mello v. Dipaulo

• Decision Date: 10 July 2002
• Docket Number: No. 01-1971.,01-1971.
• Citation: 295 F.3d 137
• Parties: Louis E. MELLO, Petitioner, Appellant, v. Paul DIPAULO, Superintendent, et al. Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

295 F.3d 137

Louis E. MELLO, Petitioner, Appellant, v. Paul DIPAULO, Superintendent, et al. Respondents, Appellees.

No. 01-1971.

United States Court of Appeals, First Circuit.

Heard February 5, 2002.

Decided July 10, 2002.

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Wendy Sibbison, for appellant.

Dean A. Mazzone, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

A Massachusetts Superior Court jury convicted eighteen-year-old Louis Mello of first degree murder and other crimes in connection with a fire in an apartment building which he admits he started to settle a score with Leonard Starcher, who died in the blaze. Mello appeals from the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254, continuing his challenge to his first degree murder conviction on the ground that his trial counsel rendered ineffective assistance. Because the state court decision affirming his conviction was neither contrary to, nor an unreasonable application of, clearly established federal law, we affirm.

I. Background

At approximately 4:30 a.m. on July 19, 1987, fire engulfed a six-unit apartment building in Fall River, Massachusetts, killing two of the residents, Leonard Starcher and Edward Walsh. The cause of the fire was a "molotov cocktail" thrown at the porch in front of the building. Later that day, Louis Mello confessed to his participation in starting the fire.

At trial, Mello offered the defense that, while he intended to set Starcher's building on fire, he was too intoxicated to understand that burning the building might result in the death of the people inside it, and therefore he should not have been convicted of first degree murder on a theory of deliberation and premeditation. Starcher's apartment had been a gathering place for a group of young people, including Mello, Domingos Arruda, and Nelson Tavares. Mello had been paying daily visits to Starcher's apartment for much of the preceding year, arriving in the late morning and staying until midnight or later. On a typical day, Mello would drink "about a case of beer" at Starcher's place. The day before the fire, Mello had drunk a case of beer there. That evening he inhaled three and a half $25 bags of heroin. After taking the heroin, Mello became ill. He testified that he "was vomiting" and "was very sick that night," and that he "didn't know what was going on." Mello's girlfriend at the time, Michelle Boudria, who was with Mello around 11:45 p.m. on the night of the fire, testified that he "appear[ed] high."¹

Three or four days before the fire, police had searched Mello's home for drugs, resulting in the arrest of Mello, his mother and her boyfriend. Mello subsequently said to Boudria that "whoever ratted on him, his house getting raided, they're going to pay for what they did." The night of the fire, Arruda told Mello that it was Starcher who had "ratted" on him, and suggested that they set fire to Starcher's apartment building.

Although Mello lived approximately 80 feet from Starcher, he returned home to get his mother's car to facilitate a "quick getaway" after starting the fire. He snuck in and out of his house to get the car keys without awakening his mother. Once he had the car, he picked up Arruda and Tavares and drove around the neighborhood (Mello recalled the precise sequence of streets in his testimony at trial). Mello then parked the car, and Arruda went to a gas station and returned with a can of gasoline. Arruda poured the gasoline into a glass bottle, and Mello inserted a rag to serve as a wick. Mello lit the rag, and Arruda threw the bottle into the cement underneath the wooden porch at the front of Starcher's building.² Mello testified that the bottle was directed at the cement part of the porch to ensure that it would explode.

In addition to the porch, Mello's car caught fire. Mello tried to extinguish the car fire with his feet, and he, Arruda and Tavares got back into the car and drove off. He stopped at a dumpster to discard his blackened sneakers and drove home. He said to Arruda and Tavares: "You guys don't know me and I don't know you." Mello then went home and slept. When a police officer arrived at the scene of the fire, all three stories on the west side of the apartment building were engulfed in flames.

The next morning, before he was arrested, Mello said to a police officer that he "couldn't believe [Starcher] was dead," and told Starcher's widow that "he was sorry about [her] husband." When he confessed to the police later that day, he stated that, although he had intended to start the fire, "he never wanted to kill anybody in the house."³ After his initial confession to police, Mello "cried for a little while." At trial, Mello's attorney asked, "Did you intend to kill anybody?" Mello replied: "No, I didn't."

However, there was evidence tending to show that Mello was not in a state of extreme intoxication the night of the fire. Mello succeeded in executing the series of steps required to start the fire, and recounted his actions in some detail at trial. When asked about the effect of the heroin on Mello, Boudria said simply: "He was kind of tired." Although Boudria indicated that Mello "appear[ed] high," she also said he was not having any trouble walking. The morning after the fire, Mello did not appear intoxicated to the police.

Mello was found guilty of first degree murder for the death of Starcher on a theory of deliberation and premeditation, second degree murder for the death of Walsh, arson, and throwing an explosive device. He received sentences of life imprisonment without parole on the first degree murder count, life imprisonment on the second degree murder count, and fifteen to twenty years on the arson count.

Mello then moved for a new trial or for a reduction of his first degree murder conviction to second degree murder. Mello argued that his defense attorney had been ineffective in failing to investigate the use of expert testimony to support his mens rea defense to first degree murder and in failing to object to certain jury instructions on mens rea. In 1992, the trial court held an evidentiary hearing at which a specialist in addiction medicine testified that Mello suffered from "cognitive impairment" that prevented him from understanding that burning down Starcher's home in the middle of the night could have fatal consequences for Starcher. Unimpressed with this theory, the trial court denied Mello's motion. Mello appealed his convictions and the denial of his post-trial motions to the Supreme Judicial Court of Massachusetts (SJC). The SJC affirmed Mello's murder convictions and the denial of his post-trial motion.⁴

In 1996 Mello petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing primarily that the ineffectiveness of his counsel deprived him of his Sixth Amendment right to counsel. In 2001 the district court denied the petition. Mello filed a timely notice of appeal, and the district court granted a certificate of appealability.

II. Ineffective Assistance of Counsel

A. The Sixth Amendment and the Habeas Standard

To demonstrate ineffective assistance of counsel in violation of the Sixth Amendment, Mello must establish (1) that "counsel's representation fell below an objective standard of reasonableness," and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir.1994). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

To prevail on his habeas petition, however, Mello must demonstrate not just that the Strickland standard for ineffective assistance of counsel was met, but also that the SJC's adjudication of his constitutional claims "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). A state court decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), or if "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different] result," id. at 406, 120 S.Ct. 1495. A state court decision involves an "unreasonable application" of clearly established federal law if "the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.

The Supreme Court has made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S.Ct. 1495. Therefore, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495; see also Hurtado v. Tucker, 245 F.3d 7, 15-16 (1st Cir.2001).

B. The SJC's Opinion

Mello raised both federal and state ineffective assistance of counsel claims before the SJC. In evaluating his arguments, the SJC applied a state-law standard for ineffective assistance of counsel; it did not expressly rule on Mello's federal ineffective assistance claims. However, Massachusetts law and our...