Pagan v. Dickhaut
| Decision Date | 29 September 2008 |
| Docket Number | Civil Action No. 06-11495-RCL. |
| Citation | 578 F.Supp.2d 343 |
| Parties | Angel Luis PAGAN, Petitioner v. Thomas DICKHAUT, as he is Superintendent of the Souza Baranowski Correctional Center, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Angel Luis Pagan, Shirley, MA, pro se.
David M. Lieber, Assistant Attorney General, Randall E. Ravitz, Office of the Attorney General, Boston, MA, for Respondent.
Angel Luis Pagan ("Pagan"), acting pro se, filed this petition for a writ of habeas corpus to challenge his detention pursuant to Section 2254 of Chapter 28 of the United States Code. Pagan is serving a life sentence at the Souza Baranowski Correctional Center in Shirley, Massachusetts, stemming from his convictions for first degree murder and armed home invasion. Pagan raises nine claims for relief in his habeas petition: prejudicial error from admission of prior bad acts; prejudicial error from admission of rebuttal evidence; violation of his Fourteenth Amendment rights because of those errors; error in not granting a new trial; ineffective assistance of counsel, both in failing to call a witness and in failing to object to admission of evidence and closing arguments; abuse of discretion by the trial judge; and failure to prove essential elements of each crime.
Respondent Thomas Dickhaut, the superintendent of the correctional facility,1 opposes Pagan's petition and argues that no claims raised by Pagan warrant granting the petition. Respondent has also filed a motion to strike some of Pagan's claims and to dismiss the petition for failing first to exhaust state remedies.
Pagan was indicted on January 4, 2001, on charges of murder and armed home invasion. Counsel was appointed and filed several pretrial motions. (S.A. § C at C.A. 4.) Pagan was tried before a jury commencing on June 19, 2001. He was found guilty of both counts on June 22, 2001 and subsequently sentenced to life in prison. (S.A. § C at C.A. 5.)
Pagan appealed his conviction directly to the Massachusetts Supreme Judicial Court, which rejected all his claims on September 9, 2003. Commonwealth v. Pagan, 440 Mass. 84, 794 N.E.2d 1184 (2003). Pagan's subsequent motion for a new trial was denied without a hearing by the trial judge (S.A. § C at C.A. 6), and a single justice of the Supreme Judicial Court denied leave to appeal that denial on July 26, 2006 (S.A. § D).
Pagan promptly filed this habeas petition pro se on August 23, 2006. (Petition for Writ of Habeas Corpus [hereinafter "Pet."] Docket No. 1.) After several extensions, he filed a supporting memorandum on September 9, 2007. (Petitioner's Memorandum in Support of His Petition [hereinafter "Pet'r Mem."], Docket No. 18.) The Respondent filed his response and answer on October 17, 2006, and a memorandum supporting the response on December 7, 2007. (Respondent's Response/Answer, Docket No. 7; Respondent's Memorandum of Law in Opposition to Petition [hereinafter "Resp't Mem."], Docket No. 23.) The Respondent also filed a motion to strike and dismiss several of Pagan's claims on November 20, 2007 as well as a memorandum in support of that motion. (Respondent's Motion To Strike and Dismiss, Docket No. 20; Respondent's Memorandum of Law in Support of Motion to Strike [hereinafter "Resp't Mot. Mem."], Docket No. 21.)
From 1990 to 1993 Pagan was involved in a relationship with Rosa Cruz ("Cruz"), but the relationship terminated shortly after Cruz became pregnant with Pagan's daughter. While Pagan maintained some contact with Cruz and was allowed to visit his daughter, his interactions with Cruz were at times confrontational. On June 5, 1993, Pagan came to Cruz's apartment with a gun tucked into his waistband, kicked in the door, and threatened to kill her if he saw her with another man. Cruz reported this incident to the police, and the officer who responded found the front door dented and the lock broken.
Sometime in early 1994, Cruz began seeing Angel Tolentino ("Tolentino"). Pagan subsequently found out about this relationship. On October 10, 1994, Pagan confronted Tolentino and Tolentino's brother in an alley. Tolentino said to Pagan, "we got to talk," to which Pagan replied, "we don't have to talk about anything," pointed a pistol at Tolentino and pulled the trigger. The gun jammed and Tolentino was able to run away.
A week later, on October 17, Pagan came to Cruz's apartment while Cruz was there with Tolentino. When Cruz refused to let him in, Pagan kicked in the door and came into the apartment. Upon seeing Cruz with Tolentino, Pagan slapped Cruz on the face and then left. Cruz reported this incident to the police.
Three days later, on October 20, Cruz was in her apartment with Tolentino and her two children. Also present were Cruz's friend Belinda Santos ("Santos"), Santos's boyfriend Steve Cartwright ("Cartwright"), and Cartwright's son. At about 8:30 in the evening, while Cruz was in the shower, Pagan and two other men unexpectedly entered the apartment. All three men were armed. Upon seeing them, Tolentino fled to the bedroom and locked himself in that room. Pagan and his companion drew their semiautomatic weapons and followed Tolentino down the hallway, while a third individual, believed to be Julio Correa ("Correa"), remained by the front door.
Pagan and his companion kicked in the door to the bedroom and fired at Tolentino, hitting him three times. The gunmen then left, with Pagan staring and smiling at Santos on his way out. Santos and Cartwright both identified Pagan as one of the two people who went after Tolentino, but neither person saw the actual shooting in the bedroom.3
Cruz came out of the shower after having heard gunshots and discovered Tolentino bleeding in the bedroom. At this point Santos told her that "Lito" (a nickname for Pagan) had shot "Chino" (a nickname for Tolentino). An ambulance took Tolentino away, and he later died from the gunshot injuries. A small folding knife was found in the bedroom by the police but it is unclear who possessed it.
Cartwright and Santos went to the police station, where they selected Pagan's photograph from an array and identified him as one of the assailants. Cruz, Santos, and Cartwright gave statements to the police about what happened that evening. Upon learning that there was a warrant out for his arrest, Pagan fled to New York and then Florida, where he was apprehended in 2000.
Correa was later arrested and charged with an unrelated drive-by shooting. He was interviewed by Special Agent Joseph Hobbs of the FBI and stated that he and two other individuals went to Cruz's apartment while armed and that shots were fired. He claimed, however, that he remained by the front door while the other two individuals chased and subsequently shot Tolentino.
Pagan's trial in the Massachusetts Superior Court sitting in and for the County of Hampden commenced on June 19, 2001 and ended four days later, on June 22. Cruz, Santos, Cartwright and the police officers who took their statements all testified for the prosecution. Pagan and his mother testified in his defense. Pagan's defense proceeded on a theory of mistaken identity and his attorney claimed that Pagan was not the person who broke into Cruz's apartment.
The trial judge, Justice Daniel A. Ford, admitted in evidence testimony about Pagan's October 10th and 17th encounters with Cruz and Tolentino, ruling that they were probative of intent and motive. The judge, however, instructed the jury to limit their consideration of these prior bad acts to those purposes. Pagan testified on direct examination that he never kicked in the door to Cruz's apartment or had a motive to harm Tolentino. During his cross-examination, he testified that he did not have a gun. In rebuttal the prosecution recalled Cruz to testify about the June 5, 2003, incident when Pagan had kicked in her door, had a gun in his waistband, and threatened to kill her if she were to see other men.
At one point after Pagan's testimony, the trial judge, in discussing how to proceed with scheduling, commented to the jury that there may be other witnesses forthcoming.4 The following day Pagan's mother did indeed testify.
There was a question as to whether the third gunman, Correa, would testify. Pagan wanted Correa to testify that both Santos and Cartwright, the prosecution's witnesses, were downstairs and could not have seen Pagan shoot Tolentino. Pagan's counsel strenuously disagreed with the usefulness of Correa's testimony because it would place Pagan in Cruz's apartment and undermine Pagan's theory of mistaken identity. Correa ultimately did not testify.
When Santos testified at the trial, she had trouble identifying Pagan because of the amount of time that had elapsed between the shooting and the trial. A photocopy of a "mug shot" style photograph of Pagan was introduced into evidence to help her with the identification, as it showed Pagan with longer hair, similar to his appearance at the time of the homicide. The photograph had been "sanitized," with incriminating features such as height marks and police identifiers removed. The judge instructed the jury not to speculate as to the origin or nature of the photograph.
In their closing arguments, the prosecution recited elements of the crimes for which Pagan was charged. The trial judge then instructed the jury on the law, the burden of proof, the proper use of evidence and the required elements of the crimes. The jury found Pagan guilty of armed home invasion and of first degree murder, premised on two theories of culpability: deliberate premeditation and felony-murder.
Because Pagan was convicted of a...
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