Morgan v. Dickhaut

• Decision Date: 05 January 2010
• Docket Number: C.A. No. 08-cv-30183-MAP.
• Citation: 677 F. Supp.2d 424
• Parties: David MORGAN, Petitioner v. Thomas DICKHAUT, Commissioner of Corrections, Respondent.
• Court: U.S. District Court — District of Massachusetts

677 F.Supp.2d 424

David MORGAN, Petitioner v. Thomas DICKHAUT, Commissioner of Corrections, Respondent.

C.A. No. 08-cv-30183-MAP.

United States District Court, D. Massachusetts.

January 5, 2010.

Catherine J. Hinton, Rankin & Sultan, Boston, MA, for Petitioner.

James J. Arguin, Susanne G. Reardon, Office of the Attorney General, Boston, MA, Amy L. Karangekis, Attorney General's Office, Springfield, MA, for Respondent.

MEMORANDUM AND ORDER REGARDING PETITION FOR WRIT OF HABEAS CORPUS (Dkt. No. 1)

PONSOR, District Judge.

I. INTRODUCTION

Petitioner David Morgan is serving a life sentence in state prison after a jury found him guilty of first degree murder in 2000. He has filed this action pursuant to 28 U.S.C. § 2254, setting out four separate grounds for habeas relief. For the reasons set forth below, and despite Petitioner's counsel's vigorous and resourceful arguments, under the narrow standard of review set out in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. 2244 et seq., this court is obliged to dismiss the petition and enter judgment for Respondent.

II. BACKGROUND

A. Facts Found in State Court.

The facts underlying Petitioner's conviction are detailed in the opinion of the Massachusetts Supreme Judicial Court ("SJC"). Commonwealth v. Morgan, 449 Mass. 343, 868 N.E.2d 99 (2007). Pursuant to AEDPA, 28 U.S.C. § 2254(e)(1), these factual determinations are presumed to be correct absent clear and convincing evidence to the contrary. Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir.2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir.2002) (en banc)). The SJC found that a jury was warranted in finding the following facts.

At the time of his death, the victim, Wayne Rowe ("Rowe"), lived in Springfield, Massachusetts and was involved in the illegal drug trade, selling marijuana he obtained from Petitioner. Two days prior to his March 3, 1999 disappearance, Rowe's wife, Michelle Rowe ("Michelle"), from whom he was separated, drove Rowe to Petitioner's home where Rowe planned to get marijuana to sell. While seated in the passenger seat of Michelle's car, Rowe was approached by Petitioner who told Rowe that someone had broken into Petitioner's apartment and that anyone involved was "going to feel it." Morgan, 868 N.E.2d at 103. On each of the next two days Michelle drove her husband to and from Petitioner's apartment to get more marijuana. Around 5 p.m. on March 3, 1999, Michelle dropped Rowe off at his apartment for the last time.

Later on March 3, Errol Lodge ("Lodge") arrived at Rowe's apartment hoping to purchase marijuana. Lodge too was aware of the break-in at Petitioner's apartment. Petitioner had previously told Lodge about the burglary, that he (Petitioner) knew who had done it and, taking a gun from his waist, that Lodge would "hear about the person." Id. at 104.

On March 3, Rowe and Lodge waited together in Rowe's driveway for a delivery of marijuana. Some time later, Petitioner and Floyd Johnson ("Johnson") arrived in a green, four-door sedan. After speaking with the two men, Rowe got into the back seat of the car, which sped away. After waiting a while for the victim to return, Lodge left.

That night Petitioner called Lodge at home and kept him on the phone for two hours, an uncharacteristically long time. During the conversation, Petitioner told Lodge that he had dropped Rowe off "somewhere," that he could not find him, that Rowe's wife had reported him missing, and that "People said I killed him." Id. At one point Petitioner told Lodge not to hang up; Petitioner put Lodge on hold for a period of time before resuming the call.

Around 8:30 p.m. that evening, and several times over the next few days, Michelle tried unsuccessfully to contact Rowe by pager. She did not, however, report him missing until March 8, 1999. Rowe's body, still wearing some of the clothing from March 3, was recovered on April 18, 1999 at the edge of the Connecticut River in Agawam, Massachusetts. He had been shot in the head at close range. No murder weapon was recovered, but analysis of the projectile recovered by the medical examiner showed it to be a .38 caliber metal jacket fired from either a .357 Magnum or a limited subset of nine millimeter guns.

After reporting Rowe missing, but before his body was recovered, Michelle confronted Petitioner, asking when he had last seen her husband. Petitioner told her that Rowe had not gotten into the car with him on March 3, 1999. When she later told him that she knew he was lying because someone had seen Rowe get into the car, Petitioner told her to bring the witness to him. When Michelle informed Petitioner that she was going to the police, he responded, "Go to the cops because you can't prove nothing anyways." Id.

In June, 1999 both Lodge and Petitioner were arrested and charged with selling marijuana. At that time Petitioner told Lodge "You cannot become an informant. You only charged for weed and weed is a misdemeanor. I will get you out. Don't tell them nothing. Don't tell them nothing." Id. Petitioner paid for a lawyer who visited Lodge in prison three or four times. Lodge, who was subject to a deportation detainer and thus ineligible for bail, remained in jail. While Lodge was in jail, Petitioner kept in contact with Lodge's girlfriend and gave her money. In September 1999 Petitioner failed to meet Lodge's girlfriend to talk about Lodge, after learning that Lodge planned to testify against him.

Petitioner made statements to other individuals implicating him in the murder of Rowe. Prior to Rowe's murder, Petitioner had a conversation with Johnson (the third person in the car on March 3) and Richard McLean ("McLean") in which he said he was going to kill Rowe. Petitioner then showed McLean a 9mm gun in Johnson's possession. When McLean urged Petitioner to abandon the idea of killing Rowe, Petitioner said that if no one saw him commit the murder, no one could do anything about it and that "as a matter of fact that mother fucker gonna be dead in a week anyway." Id. at 105.

McLean and Petitioner met again two days after the victim disappeared. Petitioner wanted to purchase a gun that McLean was holding for Rowe. Petitioner told McLean he needed it because people associated with Rowe were after him and he needed a "clean gun." Id. Petitioner told McLean not to worry about giving him Rowe's gun because he would never see Rowe again. At a later date Petitioner told McLean that Rowe was killed with a nine millimeter gun.

In September 1999, McLean spoke with Petitioner at least two more times. During the first conversation Petitioner told McLean that Lodge was going to be providing testimony against him about having seen Rowe get into the car with him and Johnson. After McLean responded, "You guys pick up somebody to kill him and somebody there seen, and you guys still do it? You guys got to be stupid." Id. In response, Petitioner laughed. During the second conversation, Petitioner told McLean that he was feeling "fucked up" because he had learned that Rowe had not broken into his apartment and that Rowe had "died for the wrong reason." Id.

Another witness, Warren Smith ("Smith") testified that he had been present when Petitioner, who then owed Rowe marijuana, waved a .45 caliber gun around and said that if anyone, including Rowe, tried to rob him, he would kill the person. After the murder Petitioner bragged to Smith that he had shot at a person who owed him money for marijuana. In addition to the .45 caliber handgun, Smith had seen Petitioner with a .357 Magnum and a nine millimeter German Luger.

Finally, Petitioner told a fellow inmate that he was charged with a murder but was going to "bring it to trial to try to beat it." Id. In a statement to police, Petitioner also claimed that the victim could not be trusted because he would "rob you." Id. at 104.

B. Procedural History.

Petitioner was indicted by a Hampden County grand jury on November 19, 1999 for Rowe's murder.¹ His trial began on October 30, 2000. Significantly, the Commonwealth at trial chose to proceed solely on a theory of principal liability, i.e., that Petitioner was the actual shooter, and not on a theory of joint venture with Johnson. The jury convicted Petitioner of first degree murder by deliberate premeditation on November 17, 2000. Petitioner filed a timely notice of appeal, and on February 20, 2004 he filed a motion for a new trial. Following a two-day evidentiary hearing, Petitioner's motion for a new trial was denied by the trial judge on December 23, 2005. Petitioner timely appealed, and his two appeals were consolidated. On June 15, 2007 the SJC affirmed both Petitioner's conviction and the denial of Petitioner's motion for new trial. Petitioner filed his Petition for Writ of Habeas Corpus on September 10, 2008, after the time expired for him to petition for certiorari in the United States Supreme Court.

1. Petitioner's Trial.

Prior to opening arguments the Commonwealth successfully moved to join the indictment charging Rowe's murder with another indictment charging Petitioner with participating in a conspiracy to murder another individual, Tanashe Edwards ("Edwards"). The prosecution believed that Petitioner conspired with others to kill Edwards after learning that Edwards, not Rowe, had broken into Petitioner's apartment. The prosecution asserted that statements made in the course of the conspiracy about the killing of the wrong man connected that crime to Rowe's murder.

From the beginning it was unclear whether the prosecution would be able to present enough evidence of the conspiracy for that claim to go before the jury. Recognizing this, the trial judge directed the prosecutor to avoid references in his opening statement to evidence that might ultimately be inadmissible. The trial judge limited the prosecutor to general references to an alleged meeting between Petitioner and the other conspirators.

In his opening statement the prosecutor...