Pasteur v. Bergeron
| Decision Date | 21 August 2008 |
| Docket Number | Civil Action No. 07-CV-11352-RGS. |
| Parties | Wilson PASTEUR, Petitioner v. Karin BERGERON, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Alan J. Black, Alan Black, Attorney at Law, Springfield, MA, for Petitioner.
Wilson Pasteur, Petitioner Pro Se.
Randall E. Ravitz, Office of the Attorney General, Boston, MA, for Respondent.
ORDER ON REPORT AND RECOMMENDATIONS
Report and Recommendations adopted and the petition is dismissed with prejudice.
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HBEAS CORPUS (Docket # 1)
On October 18, 2002, Petitioner, Wilson Pasteur, was convicted by an Essex County Superior Court jury of second-degree murder in the death of Savorn Prom on a joint venture theory in violation of Massachusetts General Law ("M.G.L.") c. 265 § 1 and unlawfully carrying a firearm in violation of M.G.L. c. 140 § 121. That same day, Pasteur was sentenced to a term of life in state prison with the possibility of parole for the second degree murder conviction and a term of four to five years in state prison for the conviction of unlawfully carrying a firearm.
Pasteur timely appealed his conviction to the Appeals Court of Massachusetts ("Appeals Court") on the following grounds—(1) the trial judge incorrectly instructed the jury on joint venture and malice; (2) the defendant was improperly limited in his self-defense and provocation defenses; (3) the judge abused his discretion when he improperly allowed the prosecution to use a peremptory challenge of the only black juror; (4) the judge inappropriately allowed the inclusion of certain evidence including expert testimony; (5) the judge inappropriately allowed evidence of Pasteur's prior criminal activity; and (6) the prosecution improperly argued facts not in evidence when making its closing statement at trial. The Appeals Court affirmed the Essex County Superior Court on July 24, 2006. See Commonwealth v. Pasteur, 66 Mass.App.Ct. 812, 850 N.E.2d 1118 (2006). On August 9, 2006, Pasteur filed an Application for Leave to Obtain Further Appellate Review ("ALOFAR") which was denied by the Appeals Court on August 15, 2006. Pasteur then filed an ALOFAR with the Massachusetts Supreme Judicial Court on August 14, 2006 which was denied on September 11, 2006. See Commonwealth v. Pasteur, 447 Mass. 1109, 853 N.E.2d 1060 (2006).
On July 24, 2007, Pasteur filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On August 7, 2007, Judge Stearns referred the case to this Court for a Report and Recommendation on the Government's motion to dismiss for failure to exhaust state remedies on Claim IV of the Petition.1 On May 2, 2008, Judge Stearns adopted this Court's recommendation that Pasteur exhausted his state remedies for Claim IV and, thus, denied the motion to dismiss.2 Now before this Court, for a Report and Recommendation on the merits, is Pasteur's Petition.
As detailed below, this Court FINDS that the decisions of the state courts were not contrary to or involving an unreasonable application of Supreme Court precedent, and did not result in a decision based on an unreasonable determination of the facts in light of evidence presented at trial. 28 U.S.C. § 2254(d)(1) & (2). Accordingly, this Court RECOMMENDS Pasteur's Petition be DENIED.
The instant Petition stems from a conviction arising out of events occurring the evening of June 5, 2000. Pasteur, then nineteen years old, lived in Lynn, Massachusetts with his family. Both Pasteur and Miller were members of the "Folk" gang. In addition, Miller was an associate of Derek Wright who was a member of the "Crypt" or the "A.K." gang.4 That evening Miller and Pasteur met at Pasteur's apartment where Miller told Pasteur that Wright wanted to go on a "mission" to retaliate for an attack earlier that week by a rival gang, the "Bloods", resulting in injuries to Wright. Wright and Miller stole a .357 caliber handgun several days before, which Wright apparently planned to use for the mission.
Miller and Pasteur went to Wright's house where Wright described his plan to Pasteur. Pasteur questioned the need for all of them to go when they had only one gun. Wright then took Pasteur and Miller to another gang member's house to retrieve a .44 caliber handgun that had previously been stolen. Wright loaded the .44 caliber handgun and Pasteur, who purposefully took the gun away from Miller, ended up carrying the handgun in his waistband.
Pasteur, Miller and Wright discussed potential areas where members of the Bloods might be and decided to go to Lowell Street, a known hangout of several Bloods members. They walked to the end of Lowell Street, passing a white car in which there were a group of Bloods. At the end of the street, Wright told Miller and Pasteur to circle the block and then come back up Lowell Street. Wright would count to thirty-seven and then walk in the direction of the white car and fire at the Bloods from the back of the car while Pasteur fired from the front.
Pasteur and Miller proceeded to walk around the block and, while doing so, Pasteur told Miller he thought the plan was "stupid" because any of the three of them could get shot. Pasteur testified that he continued despite hesitations because he did not think that Wright would go through with the proposed plan. Pasteur and Miller continued to circle the block and, upon arriving at Lowell Street, did not see Wright where he was supposed to be waiting. As such, they continued to walk past the Bloods' car. Seeing Pasteur and Miller approach, several Bloods got out of the car and began shouting insults. The Bloods then followed Pasteur and Miller who observed the Bloods holding objects such as bricks and sticks behind their backs or under their shirts. At this time, Pasteur and Miller also saw Wright in a squatting position in the street holding a gun and wearing a bandana over his face.
Pasteur passed Wright, turned to face the Bloods and exchanged insults with the closest one. Pasteur then took out his gun, first holding it by his side and then raising and pointing the gun. The closest member of the Bloods ran. Pasteur then fired a shot, sending the other Bloods running. Pasteur attempted a second shot, but the gun misfired. After Pasteur fired his shot, Wright then fired four or five shots, one of which struck Prom in the face, killing him.
Pasteur, Miller and Wright ran from Lowell Street and Pasteur and Miller met at Pasteur's apartment where Pasteur unloaded the .44 caliber handgun. Pasteur and Miller then hid the handgun at a friend's house. The following day, Pasteur and Miller, learning that the police were looking for them, left for Boston and hid in an apartment closet, where they were ultimately found.5
Pasteur asserts four grounds for relief with this Petition, to wit: (1) the Commonwealth was incorrectly allowed to peremptorily challenge the only black juror; (2) there was an unlawful "abbreviated" version of a self-defense, reasonable provocation and excessive force instruction given at trial which prejudiced Pasteur; (3) Pasteur was improperly limited from arguing self-defense or provocation by sudden combat or excessive force self-defense at trial; and (4) the prosecution was inappropriately allowed, after an objection by the defense, to argue during its closing statement facts not in evidence and designed to inflame the passions of jury members.
A federal district court may consider a petition for a writ of habeas corpus for a person in custody based on a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The instant Petition was filed on July 24, 2007, therefore, the Antiterrorism and Effective Death Penalty Act ("AEDPA") which amended 28 U.S.C. § 2254(a) on April 24, 1996, serves as the governing standard for this Court's review. Pub.L. No. 104-132, 110 Stat. 1214 (1996); see Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). By virtue of the AEDPA, a federal court cannot grant habeas relief for a claim that was adjudicated in state court, unless it "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" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2); Sleeper v. Spencer, 510 F.3d 32, 37 (1st Cir.2007).
Under the changes made by AEDPA, a state court's findings of fact are "presumed to be correct" and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). AEPA introduced many changes to the federal habeas statute, requiring that there now be a "presumption of correctness of statecourt factual findings" and a new "highly deferential standard for evaluating statecourt rulings." Lindh v. Murphy, 521 U.S. 320, 334 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) ().
A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases 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 result different from [Supreme Court] precedent." Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146...
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...and the likely effect of such instructions; and (4) the strength of the evidence against the defendant.'" Pasteur v. Bergeron, 581 F. Supp. 2d 130, 142 (D. Mass. 2008) (quoting United States v. Rodriguez-De Jesus, 202 F.3d 482, 485 (1st Cir. 2000)). The SJC correctly applied this standard h......