Pinero v. Medeiros, Case No. 3:16-cv-30032-TSH

• Decision Date: 25 February 2019
• Docket Number: Case No. 3:16-cv-30032-TSH
• Parties: JEAN PINERO, Petitioner, v. SEAN MEDEIROS, Respondent.
• Court: U.S. District Court — District of Massachusetts

JEAN PINERO, Petitioner, v. SEAN MEDEIROS, Respondent.

Case No. 3:16-cv-30032-TSH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 25, 2019

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

On February 17, 2016, Jean Pinero ("Petitioner"), who is currently serving a sentence in a Massachusetts correctional facility, petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) ("the Petition") (Dkt. No. 1). Sean Medeiros ("Respondent") opposes the Petition (Dkt. No. 22).

Petitioner was convicted of three counts of home invasion; one count of breaking and entering in the nighttime; one count of assault and battery by means of a dangerous weapon, that being a firearm; one count of unlawful possession of firearm; one count of unlawful possession of ammunition without an FID card; and one count of possession of a firearm during the commission of a felony (SA IV at 1826-28).¹ In the Petition, Petitioner argues that he was deprived of his rights as guaranteed by the Sixth and Fourteenth Amendments to the UnitedStates Constitution by: Ground One - the Commonwealth's failure to present sufficient evidence to warrant his convictions; Ground Two - improprieties in the prosecutor's closing argument, including vouching for the credibility of witnesses and arguing facts not in evidence; and Ground Three - trial counsel's ineffectiveness in failing to object to hearsay evidence admitted in violation of the Confrontation Clause (Dkt. No 1). For the reasons set forth below, I recommend that the Petition be DENIED.

I. BACKGROUND

A. Facts

The facts as found by the Massachusetts Appeals Court (MAC), which have not been rebutted by clear and convincing evidence, see, e.g., Leng v. Gelb, Civil Action No. 14-cv-10462-ADB, 2016 WL 7428221, at *1 (D. Mass. Dec. 22, 2016), are set forth below. Supplemental facts consistent with the MAC's findings are referenced herein in connection with the discussion of Petitioner's grounds for relief. See Winfield v. O'Brien, 775 F.3d 1, 3 (1st Cir. 2014) (supplementing the MAC's description of the facts with other record facts consistent with the MAC's findings).

Madeline, Jaritza, and Audeliz Nieves are siblings. All of them share a second-floor apartment in a three-story apartment building located at 312 Liberty Street in Springfield.

A sizeable party was held there on the night of April 9, 2011. The defendants [including Petitioner] were in attendance. Madeline and one of her brothers tried to disperse guests who had loitered on the grounds after the party. A fight ensued, erupting into a melee.

After the melee, [Petitioner] verbally threatened the Nieves family. The Nieves family retreated back into the apartment building. The defendants forced their way through the rear exterior door and pursued them. Madeline saw the defendants climbing the stairs just before she and her family made it to their second-floor apartment. She closed and locked the apartment door. Less than thirty seconds after the downstairs break-in, multiple gunshots were fired through the door to the Nieves's apartment. One shot hit Madeline. She could not see who fired the shots.

Two guests telephoned 911. Police officers arrived within minutes. A group outside the building warned police that another group nearby had a gun. That other group included the defendants.

As the officers approached him, Morales fled and then resisted arrest, but was subdued by the police. He was driven to a site for a showup. He stood at least thirty feet away from witnesses and yelled, "Any of you niggas identify me, I will be back to kill you." Jaritza sat in a police cruiser during the showup and did not hear the threat; she identified the defendants as the ones who broke into the building.

The police found no weapons on the defendants. The gun that shot Madeline never was recovered. Gunshot residue (GSR) tests on the defendants and on samples of their clothing were negative. Nevertheless, the defendants were convicted of the aforementioned charges.

Commonwealth v. Morales, No. 12-P-1468, at *1-2, 2014 Mass. App. Unpub. LEXIS 961 (Mass. App. Ct. Sept. 4, 2014) (footnote omitted).²

B. Procedural History

On May 12, 2011, the Grand Jury for Hampden County indicted Petitioner on six counts of home invasion; one count of breaking and entering into a building in the nighttime to commit a felony; four counts of assault and battery with a dangerous weapon; one count of carrying a firearm without a license; one count of possessing ammunition without an FID card; and one count of committing a felony while in possession of a firearm (SA I at 1-5). Plaintiff pled not guilty to all charges (SA I at 5). On Petitioner's motion, three counts of home invasion were dismissed (SA I at 6). Petitioner went to trial on the remaining counts, with trial commencing on February 8 and concluding on February 17, 2012 (SA I at 6-7). The jury acquitted Petitioner ofthree of the four counts of assault and battery with a dangerous weapon and, as is set forth above, convicted him on the remaining charges (SA I at 7). The presiding judge sentenced Petitioner to not more than twenty-five and not less than twenty years in state prison on each of counts three, four, and five (the home invasion charges), those sentences to run concurrently, and to shorter concurrent sentences on the remaining charges (SA I at 7). Petitioner timely filed a notice of appeal (SA I at 7). The MAC heard argument in the case on April 3, 2014 (SA I at 12). On September 4, 2014, Petitioner's convictions were affirmed in an unpublished opinion. See Morales, 2014 WL 4355625, at *4.

In Petitioner's direct appeal to the MAC, he argued that: (1) the trial court erred in denying his motion for a required finding of not guilty on the charges of carrying a firearm without a license and possession of a firearm during the commission of a felony because (a) the Commonwealth offered no evidence that anyone had seen Petitioner or either of his co-defendants with a firearm and there was, therefore, no evidence that Petitioner saw a gun or knew of its presence, and (b) with no one having seen the gun that was fired at Madeline's door,³ the Commonwealth had not proved that the gun satisfied the statutory definition of a firearm; (2) the trial court erred in denying Petitioner's motion for a required finding of not guilty on the home invasion charges because there was no evidence at trial that Petitioner or one of his co-defendants was armed with a dangerous weapon at the time of entry into the multifamily structure in which the Nieves family lived and no evidence that Petitioner knew that any coventurer was armed with a dangerous weapon; (3) the trial court erred in denying his motion for a directed verdict on the charge of assault and battery by means of a dangerous weapon because the Commonwealth's evidence did not sufficiently exclude the possibility that anindividual unrelated to Petitioner and the co-defendants committed the shooting; (4) for the foregoing reasons, there was also insufficient evidence to support Petitioner's conviction for breaking and entering with intent to commit a felony, commission of a felony with a firearm, and possession of ammunition; and (5) improprieties in the prosecutor's closing argument were highly prejudicial and warranted a new trial (SA I at 18, 52-67).

Addressing the appeals of Petitioner and co-defendant Ronney Martinez (Martinez) in tandem, the MAC made short work of Petitioner's sufficiency of the evidence arguments.⁴ Observing that Petitioner and Martinez were prosecuted as joint venturers, the court stated that, under Massachusetts law, the Commonwealth could rely on circumstantial evidence to convict multiple defendants in a joint venture involving a firearm even if the police did not find a gun, no one particular defendant was conclusively proved to have possessed a gun, and the Commonwealth did not show which defendant committed the attack. The court found that the circumstantial evidence supporting Petitioner's convictions was substantial. Madeline's testimony that she saw the defendants following her up the stairs coupled with the contents of a recording of a 911 telephone call made by individuals in the apartment were sufficient for a reasonable finder of fact to conclude that there was no time for anyone other than Petitioner and Martinez to have entered the stairwell and fired a gun through the apartment door. The MAC also ruled that there was sufficient evidence from which the jury could have found that Madeline was shot with a gun that met the statutory definition of a firearm. "Because she could not see agun in the possession of the defendants despite having seen them in the stairwell, and because the evidence otherwise prove[d] that one of the defendants fired a gun, the jury reasonably could have inferred from the evidence that the gun used by the defendants" had a barrel length of less than sixteen inches and therefore qualified as a firearm. Morales, 2014 WL 4355625, at *2 (citing Commonwealth v. Naylor, 899 N.E.2d 862, 868 (Mass. App. Ct. 2009); Commonwealth v. Evans, 786 N.E.2d 375, 388 (Mass.) (the grand jury could infer a barrel length of less than sixteen inches from testimony that a gun was carried in a defendant's pocket), cert. denied, 540 U.S. 923 & 540 U.S. 973 (2003)).

The MAC also rejected Petitioner's claim that he was unfairly prejudiced by improprieties in the prosecutor's closing argument. Because Petitioner did not object at trial to the statements of which he complained on appeal and did not make a general objection to the prosecutor's closing argument at its conclusion, the MAC considered this argument under a substantial risk of a miscarriage of justice standard of review. The MAC rejected the contention that the prosecutor misstated the expert evidence about the results of GSR tests on Petitioner's hands and clothing,...