Scott v. Superintendant

• Decision Date: 07 February 2017
• Docket Number: No. 15-CV-10826-PBS,15-CV-10826-PBS
• Parties: ROBERT SCOTT, Petitioner, v. SUPERINTENDANT, MCI SHIRLEY, Respondent
• Court: U.S. District Court — District of Massachusetts

ROBERT SCOTT, Petitioner, v. SUPERINTENDANT, MCI SHIRLEY, Respondent

No. 15-CV-10826-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 7, 2017

REPORT AND RECOMMENDATION REGARDING PETITION UNDER 28 U.S.C. § 2254 WRIT OF HABEAS CORPUS (Dkt. No. 1), AND RENEWED MOTION TO AMEND HABEAS PETITION (Dkt. No. 37)

CABELL, U.S.M.J.

I. INTRODUCTION

The petitioner, Robert Scott, now known as Sultan Chezulu ("Scott" or "the petitioner"), is serving a life sentence following his state court conviction for first degree murder. Pending before the Court are two matters, Scott's petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. No. 1), and his motion to amend the habeas petition. (Dkt. No. 37). The respondent opposes both requests. (Dkt. No. 47). After careful consideration of the record, and for the reasons set forth below, I recommend that the motion to amend the petition be granted, but that the petition (as amended) be denied.

II. FACTS

A. The Underlying Crime

As described by the Massachusetts Supreme Judicial Court (SJC), the jury could have found the following facts¹:

In December, 1984, the victim's body was found by a passerby in a vacant lot in Boston. [The victim, Yolanda Hernandes,] was eighteen years old. An autopsy revealed that the victim had suffered multiple blunt impact injuries to her head, fractures to her skull, lacerations and contusions to her face, and fractured and loosened teeth. A sock had been tied as a ligature around the victim's neck. She had been alive when her injuries were inflicted.

Although the victim was identified, the case remained unsolved for many years. After being contacted by the victim's sister in 2006, the Boston police department reopened the case. Police reexamined evidence collected in the original investigation, including the victim's clothing and vaginal and anal swabs taken from her body at the autopsy.

The vaginal and anal swabs, as well as a stain from the victim's skirt, were found to contain sperm cells. DNA testing was performed on those cells, and the DNA pattern found in the cells was run through a national database. The database returned a match with the defendant's DNA. The likelihood that the DNA pattern shared bythe defendant and by the tested samples would be found in a random individual was one in at least 430 million.

The evidence reexamined by police also included a pair of underwear found on the ground about five or six feet away from the victim's body. DNA matching the victim's DNA was found on the underwear. No sperm cells were detected on them.

The defendant was living and working in Boston at the time of the victim's death. By 2008, when the case was again being investigated, he was living in Atlanta, Georgia. Boston police detectives traveled to Atlanta in late 2008 to arrest the defendant. After he was arrested and brought back to Boston, the defendant said to a detective, "I have to face the music now."

At trial, the theory of the defense was that the defendant had had consensual sex with the victim prior to her death, but that he was not her killer. The defendant sought to introduce evidence suggesting that the victim might have been killed by third parties or that the police investigation had been lacking. The judge excluded much, though not all, of this evidence.

The victim's sister and the victim's friend and former neighbor testified that they had never heard of the defendant and that the victim had never been with older men or with men who did not speak Spanish. The victim's sister also testified that the victim had been at home during the nights of the week of Christmas, 1984, including the night before the victim was killed; and that, on the day of the killing, the victim had left home early in the morning and had worked until 6 p.m.

A police criminologist, Kevin Kosiorek, opined that the sperm found in the victim's body had been deposited there around thetime of her death and at the location where she was discovered. This opinion was based, in part, on the fact that no sperm cells were detected on the victim's underwear; according to Kosiorek, "if somebody is up walking around, semen would be draining out of her and would be on the underwear if she were wearing it...." Kosiorek also stated that the pattern of stains found on the victim's skirt was "consistent with drainage if a person were laying horizontally."

Kosiorek provided the opinion that sperm "heads," which were identified in this case, are usually detectible only within "a day or maybe a little more" after sexual intercourse. In addition, while only small quantities of sperm and seminal fluid were collected, Kosiorek explained that the amounts collected are not indicative of the amounts actually deposited, and that the amounts deposited are, in any event, poor indicators of the timing of intercourse.

Commonwealth v. Scott, 470 Mass. 320, 321-323 (2014) (internal citations and alternations omitted).

B. State Court Proceedings

In 2008, the petitioner was indicted on one count of murder. He was convicted in October 2010 following a jury trial and sentenced to life in prison. He appealed. On December 26, 2014, the SJC affirmed the petitioner's conviction. Commonwealth v. Scott, 470 Mass. 320 (2014).

C. Relevant Procedural Background

On April 2, 2012, the petitioner initiated this federal matter by filing a petition for habeas relief. The petition attacks his conviction, based upon three, separate alleged dueprocess violations. It alleges that: (1) there was insufficient evidence to support a murder conviction; (2) the exclusion of third party culprit evidence deprived the defendant of a meaningful opportunity to present a complete defense; and (3) in light of the trial court's exclusion of third party culprit evidence, the prosecutor's argument in his closing that the victim was without enemies rendered the trial unfair. (Dkt. Nos. 1, 38).

On June 12, 2015, the respondent filed an answer. The petitioner thereafter moved to amend his petition to add a fourth theory of relief. The new argument asserts that the petitioner's Sixth Amendment rights were violated when a juror was discharged and replaced with an alternate, and the trial judge instructed that the new juror was to be "brought up to speed." (Dkt. Nos. 37-38). On May 25, 2016, the respondent submitted an opposition to both the habeas petition and the motion to amend. (Dkt. No. 47).

III. THE HABEAS PETITION

A. Standard of Review

"Federal habeas is not an ordinary error-correcting writ." Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). It "exists to rescue those in custody from the failure to apply federal rights, correctly or at all." Id. Habeas relief is only available if a prisoner "is in custody in violation of theConstitution or laws or treaties of the United States." Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (internal quotations and citations omitted). A writ of habeas corpus thus "does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991).

A federal court may grant a writ of habeas corpus only if the underlying state court adjudication:

(1) 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 (2) 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) (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). Here, the petitioner does not argue that the trial court unreasonably determined the facts. This Court's task, therefore, is to "determine what arguments or theories supported the state court's decision," and then determine whether "those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Wetzel v. Lambert, 565 U.S. 520, 524 (2012) (emphasis added) (quoting Harrington v. Richter, 562 U.S. 86 (2011)). See also Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000) ("In this context, 'clearly established law' signifies 'theholdings, as opposed to the dicta'" of the Supreme Court decisions.)).

In habeas cases, "a state court is afforded deference and latitude." Hensley v. Roden, 755 F.3d 724, 731 (1st Cir. 2014) (citation omitted). A state court decision is "contrary" to clearly established federal law only where "the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002). A decision is an "unreasonable application" of federal law where "the state court correctly identifies the governing legal principle from [the Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. The magnitude of the error "must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011) (quoting McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)).

Even assuming that this Court were to find that the state court committed an error, habeas relief is only appropriate if the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). In other words, habeas relief cannotbe granted for "harmless" errors, which are defined as those errors that did not impact the verdict.

Applying these principles to this case, the Court discerns no error in the SJC's consideration and adjudication of the petitioner's claims.

B. Sufficiency of the Evidence

The petitioner argues that the evidence adduced at his trial was insufficient to support his conviction for first-degree murder. In his view, the evidence established only that he had sexual relations...