Rosado v. Allen
| Decision Date | 30 March 2007 |
| Docket Number | Civil Action No. 02-10359-DPW. |
| Citation | 482 F.Supp.2d 94 |
| Parties | David W. ROSADO, Petitioner, v. Peter ALLEN, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
David W. Rosado, MCI-Cedar Junction, South Walpole, MA, Pro se.
Emanuel Howard, Brookline, MA, for Petitioner.
Cathryn A. Neaves, Dean A. Mazzone, Attorney General's Office, David M. Lieber, Assistant Attorney General; Boston, MA, for Respondent.
Peter Allen, MCI-Cedar Junction, South Walpole, MA, Pro se.
Petitioner David W. Rosado seeks habeas corpus relief from his Massachusetts state court conviction for first degree murder. He is serving a life sentence without the possibility of parole. His principal complaint is that his trial counsel did not engage a psychological expert to explore a lack of mental capacity defense.
The record in this case came to me in an awkward posture. The state trial judge, limited by the then-applicable restrictions on the availability of state resources to support post-conviction evidentiary development for indigent defendants, denied relief from the judgment of conviction after carefully considering the constrained record before him. Thereafter, the Supreme Judicial Court, apparently misconstruing the record, affirmed.
Due to the absence of a completely developed record, I invoked the resources of the federal courts to support adequate legal assistance to petitioner before resolving the petition in full. Having granted Petitioner's motion for certain funds for expert services so that he could more fully develop the basis for his claim of lack of mental capacity and having held a full evidentiary hearing, I conclude, for the reasons stated below,1 that he is not entitled to relief on any of his claims. Accordingly, I will direct the Clerk to dismiss the petition.
The facts underlying Rosado's conviction are set forth in Commonwealth v. Rosado, 434 Mass. 197, 198-99, 747 N.E.2d 156 (2001), cert. denied, 534 U.S. 963, 122 S.Ct. 372, 151 L.Ed.2d 283 (2001), and are presumed to be correct under 28 U.S.C. § 2254(e)(1), see Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir.2002). A summary will suffice here.
On the night of January 14, 1995, Rosado and Kevin Babbitt,2 both vocal proponents of white supremacy, inflicted a brutal beating on Mr. Greene, an African-American who had earlier asked them to turn down the volume of the music in their Attleboro motel room. After kicking and punching the victim in his neighboring motel room, Rosado and Babbitt continued to beat the victim in the cement parking lot outside the motel before returning him to his motel room, where he languished for several days.
A few days after the beating, Babbitt, Rosado, and Steven Richard went to the victim's room and found him lying on his bed, naked, unable to move, and foaming at the mouth. Instead of calling for medical help, Rosado and Richard3 stood by as Babbitt suffocated the victim. The trio then carried the victim's body and buried it in a shallow grave behind the motel. In March 1995, after the body was recovered by police, a medical examiner determined the cause of death to be blunt trauma to the head.
At trial, Rosado acknowledged his participation in the initial beating but asserted that Babbitt's suffocation of the victim was an independent intervening event that relieved him of criminal liability for the murder. Rosado, 434 Mass. at 199, 747 N.E.2d 156. The jury apparently rejected this theory and returned a guilty verdict of first degree murder by extreme cruelty or atrocity. Rosado filed a notice of appeal the next day.
Rosado then filed a motion for a new trial under Mass. R. Civ. P. 30 on grounds of ineffective assistance of counsel and errors in jury instructions. He also filed a motion for funds so he could prosecute his motion for a new trial. Judge Hely, who had presided over the trial, issued a memorandum and order denying both motions. Judge Hely concluded that Rosado's trial counsel, Gerald FitzGerald, demonstrated a high level of competence in defending Rosado.
Rosado appealed the denial to the Supreme Judicial Court and asked the SJC to consolidate the direct appeal of his conviction with the appeals of his denied motions. The SJC affirmed both Rosado's conviction for murder and the order denying his post-trial motions. Rosado, 434 Mass. at 198, 747 N.E.2d 156. Rosado thereafter filed this habeas petition under 28 U.S.C. § 2254.
Rosado's petition, as initially framed, contained several unexhausted claims. In a Memorandum and Order, I ruled that I would allow Respondent's motion to dismiss the petition unless Rosado promptly amended his pleading to proceed upon only those claims in the petition that were exhausted. Rosado v. Allen, No. 02-10359-DPW, 2003 WL 1475031 (D.Mass. Mar. 20, 2003).4 Rosado thereupon filed a Notice of Amendment stating his intention to proceed on only the exhausted claims.
Rosado now presses and I find properly before me four exhausted grounds to support his claim for habeas corpus relief. Ground One alleges ineffective assistance of counsel on the basis that Rosado's counsel failed properly to investigate his mental state at the time of the crime, which, according to Rosado, would have bolstered a defense theory based on mental impairment. In this connection, Rosado alleges in Ground Two that he was unconstitutionally denied funds to obtain an expert to prove his ineffective assistance claim. Grounds Five and Six allege respectively that the trial judge failed to instruct the jury on mitigating circumstances that would have negated malice and that the faulty instructions, as a whole, effectively diminished the Commonwealth's burden of proof.
I consider, in the order asserted, the Grounds properly before me after outlining the general standards for federal habeas corpus.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not grant an application for a writ of habeas corpus unless the state court decision below was (1) "contrary to, or an unreasonable application of clearly established" federal law, as determined by the Supreme Court, or (2) "based on an unreasonable determination of the facts in light of the evidence" presented during the state court proceeding. 28 U.S.C. § 2254(d).
"A state court decision is `contrary to' clearly established federal law if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases.'" James v. Marshall, 322 F.3d 103, 106 (1st Cir.2003) (alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).. The state court has performed an "unreasonable application" of clearly established law if that court "`identifies the correct governing legal principle from [Supreme Court] cases but unreasonably applies it to the facts' of the petitioner's case, or if the state `court either `unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." James, 322 F.3d at 106 (alterations in original) (quoting Williams, 529 U.S. at 407, 120 S.Ct. 1495). The "mere fact that there was some error or that the state decision was incorrect is not enough" to establish an unreasonable application of law. McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (en banc).
A state court's findings of fact "shall be presumed to be correct" and the petitioner bears the burden of disproving factual findings by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); McCambridge, 303 F.3d at 34-35; Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir.2001).
Rosado asserts that he was denied effective assistance of counsel as guaranteed by the Constitution because his trial counsel failed to investigate an insanity defense under the doctrine of Commonwealth v. McHoul, 352 Mass. 544, 546-47, 226 N.E.2d 556 (1967). Contending that trial counsel had information regarding Rosado's habitual intoxication, history of aggressive behavior, and heavy ingestion of alcohol the night of the incident, Rosado argues that trial counsel should have delved further into the history of his alcohol abuse, obtained a mental health examination, and "at least investigated the viability of presenting expert testimony for an insanity defense." He argues that the failure to perform "even minimal investigation of a defense built on expert testimony about criminal responsibility," effectively stripped him of "the only realistic affirmative defense available to him."
To determine whether counsel's performance was effective under the Sixth Amendment,5 a reviewing court must ask "whether counsel has brought `to bear such skill and knowledge as will render the trial a reliable adversarial testing process.' "Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir.1994) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied, 513 U.S. 1129, 115 S.Ct. 940, 130 L.Ed.2d 885 (1995). This inquiry involves a two-part test.
First, a defendant must show that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. This evaluation of counsel's performance "demands a fairly tolerant approach." Scarpa, 38 F.3d at 8. The court must apply the performance standard "not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented." United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991), cert. denied, 502 U.S. 1079, 112 S.Ct. 986, 117...
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