Phoenix v. Matesanz

• Decision Date: 10 June 1999
• Docket Number: No. 98-2048,98-2048
• Parties: (1st Cir. 1999) KENNETH P. PHOENIX, Petitioner, Appellant, v. JAMES MATESANZ, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 20

189 F.3d 20 (1st Cir. 1999)

KENNETH P. PHOENIX, Petitioner, Appellant, v. JAMES MATESANZ, Respondent, Appellee.

No. 98-2048.

United States Court of Appeals for the First Circuit.

Heard June 10, 1999.

Decided Aug. 19, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Robert L. Sheketoff with whom Sheketoff & Homan was on brief for appellant.

William J. Meade, Assistant Attorney General, Commenwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, Commenwealth of Massachusetts, was on brief for appellee.

Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Selya, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Kenneth P. Phoenix appeals from the district court's denial of his petition for habeas corpus relief from his 1988 murder conviction. We affirm the district court's determination that Phoenix's claim of ineffective assistance of counsel was not procedurally barred. As to the merits of the ineffective assistance claim, we remand to the district court for further proceedings consistent with this opinion.

1.FACTS

On June 3, 1988, Phoenix was convicted of first-degree murder in the Hampshire Superior Court of Massachusetts. For the facts of his conviction we look first to the decision of the Massachusetts Supreme Judicial Court ("SJC") affirming Phoenix's conviction on direct appeal. See Commonwealth v. Phoenix, 567 N.E.2d 193 (Mass. 1991).

Raymond Green was the power plant facility manager at the Belchertown State School, supervising sixty-three employees, including Phoenix. He worked in an office on the second floor of the powerhouse on the school grounds. On August 4, 1986, Green's secretary found him dead in his office, shot five times by a .22 caliber firearm. The police retrieved pieces of a green scouring pad from Green's face and from the floor of his office. In a metal drum on the first floor of the powerhouse, they also discovered a crumpled brown paper bag and a rolled-up piece of green scouring pad. The drum was situated next to the entrance to a tunnel system that connected the powerhouse with other school buildings.

The Commonwealth took the position, based largely on fingerprint and blood evidence found at the scene, that Phoenix had entered the powerhouse undetected through the tunnel system and went to Green's office while Green was out getting his lunch. As part of its theory, the Commonwealth reasoned that Phoenix had constructed a homemade silencer by wrapping a gun in a green scouring pad and placing it in a paper bag. When Green returned to his office, Phoenix allegedly shot him five times at point blank range. Phoenix escaped through the tunnel system, dumping the bag and the scouring pad in the metal drum on his way out. The weapon was not recovered.

As indicated, the Commonwealth based its case largely on its experts' interpretation of certain physical evidence found at the scene.¹ Examination of the paper bag had revealed several blood stains, one of which contained a fingerprint. After chemical treatment, additional fingerprints appeared, only some of which were identifiable. At trial, the Commonwealth called Dr. Moses Schanfield, an expert serologist, who testified that the blood from the one interpretable stain was consistent with Green's blood and that it could not have been Phoenix's blood. The Commonwealth also called two fingerprint experts, who stated that each of the identifiable prints found on the bag belonged to Phoenix.

Before trial, Phoenix's counsel, William M. Bennett, retained Dr. Brian Wraxall, a forensic serologist, to assist in the defense. According to an affidavit filed subsequent to trial, Wraxall observed the allotype testing performed by Dr. Schanfield shortly before trial, and determined that the test results were scientifically meaningless and that there was no scientific basis for concluding that the evidence bloodstain was consistent with Green's blood or not consistent with Phoenix's. He discussed these conclusions with attorney Bennett, who did not, however, call Dr. Wraxall to the stand.

Bennett had also retained Professor Herbert McDonnell, a fingerprint analyst. Based upon his review of photographs of the prints recovered from the paper bag, McDonnell stated in a post-trial affidavit that he advised Bennett of his opinion that there was insufficient detail to conclude either that the print was Phoenix's or that it was not. Bennett never called Professor McDonnell to the stand.

II.. PROCEDURAL HISTORY

On December 20, 1988, Phoenix filed a motion for a new trial on the ground that his trial had been tainted by juror misconduct. The motion did not mention ineffective assistance of counsel. The superior court denied the motion on February 6, 1989.

Phoenix applied for a stay of further execution of sentence on October 31, 1989. Again, the grounds for that application did not include ineffective assistance of counsel. On April 20, 1990, Phoenix filed a supplemental memorandum in support of his application for a stay, which included an affidavit of Dr. Wraxall stating, inter alia, his opinion that "no conclusion could be drawn regarding the types of the donors of the blood on the paper bag." The Commonwealth moved to strike this affidavit. The superior court denied Phoenix's application for a stay on May 25, 1990.

Phoenix also filed a direct appeal of his conviction, which set forth several grounds but did not raise the issue of ineffective assistance of counsel. Phoenix, however, sought leave to supplement the record on appeal to add an affidavit by Dr. Wraxall concerning the allotype testing. Phoenix, 567 N.E.2d at 199 n.8. The Supreme Judicial Court denied this request, finding that Phoenix was aware of Dr. Wraxall and his opinions as to the testing at the time of trial, but that Bennett chose not to call him to testify as a matter of strategy. Id. On February 28, 1991, the SJC affirmed Phoenix's conviction pursuant to Mass. Gen. L. ch. 278, § 33E.

Nearly five years later, on January 22, 1996, Phoenix, represented by new counsel, filed a second motion for a new trial. He alleged that he had been denied effective assistance of counsel because, inter alia, his trial counsel (1) failed to call Dr. Wraxall to rebut Dr. Schanfield's trial testimony, and (2) failed to call Professor MacDonnell to rebut the Commonwealth's fingerprint evidence. Phoenix asserted that these failures violated his rights under the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.

On March 18, 1996, the Superior Court denied Phoenix's motion without an evidentiary hearing. Upon review of the Wraxall affidavit, the court noted that it was essentially the same affidavit that Phoenix had filed in support of his motion for a stay of further execution of his sentence and that the SJC had refused to add to the record on direct appeal. Citing Commonwealth v. Gagliardi, 638 N.E.2d 20 (Mass. 1994), it held that Phoenix had waived the issue of Bennett's failure to call Dr. Wraxall to testify by not raising it on appeal or in his first motion for a new trial. The court also stated that it did not believe that Bennett's decision not to call Dr. Wraxall as a witness could "be considered to constitute ineffective representation."

As to Bennett's failure to call Professor McDonnell to testify at trial, the court determined that McDonnell's opinion did not rule out the possibility that the unknown fingerprint was Phoenix's, and that the Commonwealth's witnesses testified convincingly that the print did belong to Phoenix. Accordingly, the court found that McDonnell's testimony would not have been helpful to Phoenix, and that Bennett was not ineffective in choosing not to put him on the stand.

On October 21, 1996, represented by new counsel yet again, Phoenix sought leave from a single "gatekeeper" justice of the SJC to appeal the denial of the second motion to dismiss. See Mass. Gen. L. ch. 278, § 33E. He argued that his appellate counsel had had no opportunity to raise the issue of Wraxall's testimony since the affidavit was never made part of the record. Accordingly, Phoenix contended, the superior court judge erred in holding that his ineffectiveness claim was waived.

The single justice denied Phoenix's application on May 8, 1997, after extensive briefing but without an evidentiary hearing. He held that although the issue of whether Phoenix waived his argument regarding the Wraxall affidavit "may be novel," the underlying issue of ineffective assistance of counsel lacked substance and thus did not warrant a new trial. Id. (requiring a motion for a new trial to raise a question that is "new and substantial"). Noting that "the reliability of the Commonwealth's testimony on this score had been so thoroughly canvassed both at trial, by cross-examination by defendant's counsel, and then examined by the full court on plenary review," the single justice rejected the ineffective assistance claim as to the Wraxall affidavit on its merits. Similarly, he upheld the motion judge's ruling that, in the context of the "strong testimony" by the Commonwealth's experts, McDonnell's testimony would not have been helpful to Phoenix's defense, and thus could not support an ineffective assistance claim. The justice cited neither federal nor state law in the opinion.

On January 29, 1998, Phoenix filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). On July 30, 1998, the district court denied the petition without a hearing. It held that Phoenix's claim of ineffective assistance was not in procedural default, but that "the petitioner has failed to establish that the performance of his counsel at trial in the Massachusetts Superior Court fell below an objective standard of reasonableness in light of all the circumstances." The district court granted a certificate of appealability on September 9, 1998.

III. ANALYSIS

Phoenix's...