Neverson v. Bissonnette

• Decision Date: 04 February 2003
• Docket Number: No. CIV.A. 98-11719-WGY.,CIV.A. 98-11719-WGY.
• Parties: Trevor NEVERSON Petitioner, v. Lynne BISSONNETTE, William Cudworth, Warden of the Adult Correctional Institution, Stephen Farquharson, Frederick MacDonald, Immigration and Naturalization Service, Respondents.
• Court: U.S. District Court — District of Massachusetts

242 F.Supp.2d 78

Trevor NEVERSON Petitioner, v. Lynne BISSONNETTE, William Cudworth, Warden of the Adult Correctional Institution, Stephen Farquharson, Frederick MacDonald, Immigration and Naturalization Service, Respondents.

No. CIV.A. 98-11719-WGY.

United States District Court, D. Massachusetts.

February 4, 2003.

COPYRIGHT MATERIAL OMITTED

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John M. Thompson, Thompson and Thompson, PC, Springfield, MA, for Petitioner.

Trevor Neverson, Cranston, RI, Pro se.

Natalie S. Monroe, Attorney General's Office, Boston, MA, Brenda M. O'Malley, Dept of Justice, Civil Division, Washington, DC, for Respondents.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I.INTRODUCTION

A. Procedural Posture

Trevor Neverson ("Neverson") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 1990 conviction in the Massachusetts Superior Court, sitting in and for the County of Hampden, for manslaughter.

On September 16, 1987, a Hampden County grand jury indicted Neverson for the murder of his infant stepdaughter. Neverson's first trial was held in February of 1989, and a mistrial was declared in that case because of a hung jury. Resp't Mem. in Opp'n [Docket No. 59] at 1-2. On February 22, Neverson moved to dismiss the indictment based on his claim of insufficient evidence, but the trial judge denied the motion. Id. at 2. Neverson then appealed this decision and was denied. Id. He then appealed the denial to the Massachusetts Supreme Judicial Court, but the further appeal was denied. Neverson v. Commonwealth, 406 Mass. 174, 546 N.E.2d 876 (1989).

Neverson's second trial was held in July of 1990, and he properly made motions for acquittal at the close of the government's evidence and at the close of all the evidence. Resp't Mem. in Opp'n at 2. On July 24, 1990, the jury returned a verdict of guilty on the count of manslaughter, and Neverson was sentenced the next day to serve sixteen to nineteen years in prison. Id. Neverson filed a timely notice of appeal.

The Massachusetts Appeals Court affirmed Neverson's conviction on September 10, 1993. Commonwealth v. Neverson, 35 Mass.App.Ct. 913, 619 N.E.2d 344 (1993). On October 25, 1993, the Supreme Judicial Court denied Neverson's application for leave to obtain further appellate review. Commonwealth v. Neverson, 416 Mass. 1106, 622 N.E.2d 1364 (1993) (table). Neverson moved for a new trial on July 11, 1997. and that motion was denied on July 30, 1997. Resp't Mem. in Opp'n at 3. The Massachusetts Appeals Court affirmed the denial of Neverson's motion for a new trial in an unpublished opinion on June 23, 1998. Commonwealth v. Neverson, 45 Mass.App.Ct. 1104, 699 N.E.2d 28 (1998) (table). On July 27, 1998, the Supreme Judicial Court denied Neverson further appellate review. Commonwealth v. Neverson, 700 N.E.2d 544 (1998) (table).

On August 28, 1996, Neverson filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Upon Respondent's motion, the petition was dismissed for failure to exhaust state remedies. Resp't Mem. in Opp'n at 3.

Neverson filed the instant petition seeking habeas relief on August 17, 1998. In October 1998, respondent moved to dismiss the petition as being time-barred under the habeas statute. Pursuant to the motion, the district court issued an order dismissing the petition on December 15, 1999. Id. Within its order, the district court granted a certificate of appealability, and Neverson filed for appeal with the First Circuit on January 13, 2000. Id. at 4.

After Neverson was appointed appellate counsel, the First Circuit ruled that, in accordance with recent Supreme Court jurisprudence, the time during which Neverson's first habeas petition was pending did not toll the limitations period, but the First Circuit remanded the case to this Court to determine whether equitable tolling was available. Neverson v. Bissonnette, 261 F.3d 120, 125-27 (1st Cir.2001). On June 27, 2002, this Court equitably tolled the limitation period for this petition. Neverson v. Bissonnette, No. 98-11719, slip op. at 10 (D.Mass. July 26, 2002). Subsequently, Neverson and the respondent filed briefs respectively in support of and in opposition to the habeas petition. In addition, the respondent has moved to dismiss the petition for lack of jurisdiction and failure to state a claim.

B. Facts

Neverson's arrest and subsequent prosecution arose from the death of his fifteen-month old stepdaughter. Commonwealth v. Neverson, 35 Mass.App.Ct. 913, 619 N.E.2d 344 (1993). Medical examiners determined the cause of death to be "blunt force trauma." Neverson v. Commonwealth, 406 Mass. 174, 178, 546 N.E.2d 876 (1989). The victim's injuries included fractured ribs, abrasions and contusions, and various internal injuries. Resp't Mem. in Opp'n at 5.

On appeal from his conviction, Neverson argued that the evidence was insufficient to show that the injuries were sustained while the baby was in his sole custody. 35 Mass.App.Ct. at 914, 619 N.E.2d 344. The parents reported the baby dead shortly after 7:00 A.M. Id. The medical examiner, Dr. Loren J. Mednick ("Mednick"), estimated the time of death to be approximately 11:35 P.M. the previous night and that the fatal injuries were suffered approximately two to three hours prior to death. Id. Another expert, Dr. George Katsas ("Katsas"), testified that the injuries were inflicted no more than two hours prior to death, but both doctors agreed that the injuries were inflicted before 11:30 P.M., the time at which the baby's mother returned home from work. Id. The government also adduced evidence that the injuries were not the result of a "household accident." Id.

At trial, the judge refused to allow as expert testimony the opinion of Dr. James V. Masi ("Masi"). Id. at 915. Masi, a professor of physics and biomechanics, was prepared to testify that a child falling from a height of sixty-three inches—ostensibly the height of a bunk bed used by the baby's older brother¹—would probably not survive the fall. Id. While the judge ruled that Masi had expertise in physics and could testify as to the speed of the collision from a falling child, he also ruled that Masi had insufficient experience in evaluating the medical consequences of falls from various heights. Id. The Massachusetts Appeals Court, in affirming the trial court, noted Masi's admission that "from the medical point of view, [he had] no expertise." Id. Indeed, the state courts went so far as to impugn Masi's purported testimony as containing "obvious rubbish." Id

II. DISCUSSION

As a preliminary, but crucial, matter, confusion and disagreement exists as to the precise nature of Neverson's claims in this habeas action. Much of the confusion stems from the pro se pleadings and briefs Neverson has filed in this case and in the state proceedings. In his Petition for Writ of Habeas Corpus [Docket No. 1], Neverson incorporates his Application for Leave to Obtain Further Appellate Review ("ALOFAR") and states that it forms the basis of his claims in this habeas action. His ALOFAR, a copy of which is contained in the Respondent's Supplemental Answer as Exhibit 6, explicitly presents five broad issues for appeal, but also contains a provision that incorporates his entire appellate brief for consideration. Resp't Supplemental Answer [Docket No. 57], Ex. 6 at 2. The five explicit issues for habeas review contained in the ALOFAR are: (1) the Appeals Court's decision is "arbitrary and capricious" because the District Attorney is not a party as she "waived all issues in the Superior Court"; (2) the trial court "abused its discretion" by failing to hold an evidentiary hearing on Neverson's motion for a new trial; (3) Neverson's trial and appellate counsel provided ineffective assistance; (4) Neverson was denied his constitutional "right of confrontation and compulsory process"; and (5) Neverson's conviction violated the supremacy clause of the constitution. Id. at 3.

In his Memorandum in Support of his Petition, which was prepared by counsel, however, Neverson appears to abandon some of the claims articulated in his ALOFAR and to recast others. In his memorandum, Neverson states:

Neverson's petition asserts five grounds for relief: (1) That his right to present his defense was violated by (a) arbitrary exclusion of the testimony of Dr. James V. Masi, in (b) a decision which invaded the jury's fact-finding function and (c) violated his right to confrontation of adverse witnesses and compulsory process; (2) That he received ineffective assistance of trial counsel; (3) That he received ineffective assistance of appellate counsel; (4) That the evidence was constitutionally insufficient to support his conviction; and (5) That the state courts violated his right to due process and equal protection in denying his Rule 30 motion without providing him an evidentiary hearing. Pet'r Mem. in Supp. [Docket No. 63] at 1-2.

Because his Habeas Petition and ALOFAR were filed pro se, Neverson is entitled to some latitude in the interpretation of his claims. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) (noting that courts should read pro se pleadings less strictly than pleadings drafted by lawyers); Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999) (applying a more tolerant standard of particularity to a pro se motion for 28 U.S.C. § 2255 habeas relief). A court's solicitous discretion, however, is not unfettered. See, e.g., Boivin v. Black, 225 F.3d 36, 43 (1st Cir.2000) (stating that pro se litigants are not exempt from procedural rules); United States v. Michaud, 925 F.2d 37, 41 (1st Cir.1991) ("Even pro se petitioners must plead specific facts backing up their claims."). This Court will interpret Neverson's pro se pleadings liberally to construe his claims for the purposes of this adjudication.

The parties appear to agree that the ALOFAR states claims respecting Neverson's rights to...