Simon v. Silva, CIVIL ACTION NO. 20-10715-DPW

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation574 F.Supp.3d 19
Parties Wally Jacques SIMON, Petitioner, v. Steven SILVA, Superintendent, MCI Norfolk. Respondent.
Docket NumberCIVIL ACTION NO. 20-10715-DPW
Decision Date09 December 2021

574 F.Supp.3d 19

Wally Jacques SIMON, Petitioner,
Steven SILVA, Superintendent, MCI Norfolk.


United States District Court, D. Massachusetts.

Filed December 9, 2021

574 F.Supp.3d 24

Wally Jacques Simon, Norfolk, MA, Pro Se.

Anna E. Lumelsky, Massachusetts Attorney General's Office, Boston, MA, for Respondent.



Before me is a petition for a writ of habeas corpus under 28 U.S.C. § 2254, arising from the state convictions of Wally Jacques Simon related to the shooting death of Christopher Barbaro. In 2013, a jury convicted Mr. Simon of first-degree murder on a theory of felony murder, MASS. GEN. LAWS ch. 265, § 1 ; armed home invasion, MASS. GEN. LAWS ch. 265, § 18C ; armed robbery, MASS. GEN. LAWS ch. 265, § 17 ; assault and battery by means of a dangerous weapon, MASS. GEN. LAWS ch. 265, § 15A(c)(i) ; and carrying a firearm without a license, MASS. GEN. LAWS ch. 269, § 10(a).

Mr. Simon sought but was denied a new trial in the Massachusetts Superior Court. He pursued a consolidated appeal of his convictions and the denial of his new trial motion before the Massachusetts Supreme Judicial Court. In 2019, the SJC vacated Mr. Simon's armed robbery conviction but affirmed the remaining convictions and the denial of his new trial motion. Commonwealth v. Simon , 481 Mass. 861, 120 N.E.3d 679 (2019).

Mr. Simon as Petitioner now asserts four grounds for habeas corpus relief: 1) that he was deprived of his Fifth Amendment right against self-incrimination as a result of his counsel's ineffective assistance during a pre-arrest interrogation; 2) that the prosecutor engaged in improper burden shifting by suggesting to the jury that Mr. Simon had an obligation to preserve evidence (a recording of his pre-arrest interrogation); 3) that his right against double jeopardy prevents him from being convicted of felony murder and either or both the Felony murder predicate offenses (armed robbery and armed home invasion) found by the jury; and 4) that the SJC erroneously declined to exercise its extraordinary powers under MASS. GEN. LAWS ch. 278, § 33E to grant Mr. Simon relief.

The Respondent, Mr. Simon's state penal custodian, moves for judgment on the

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pleadings. I will grant Respondent's Motion for Judgment on the Pleadings and dismiss Mr. Simon's petition.


A. Factual Background

In the absence of clear and convincing evidence of error, I must defer to the factual determinations of the Massachusetts state courts when reviewing a collateral challenge to a Massachusetts conviction. 28 U.S.C. § 2254(e)(1). I recite the facts as stated in the opinion of the SJC; that opinion provides the last fully developed narrative of factual determinations in the state courts. My recitation is "supplemented with other record facts consistent with the SJC's findings." Healy v. Spencer , 453 F.3d 21, 22 (1st Cir. 2006). See generally Strickland v. Goguen , 3 F.4th 45, 47–48 (1st Cir. 2021) (relying on the last reasoned state court decision "in crafting the factual and procedural narrative.").

1. The Underlying Deadly Shooting and Identification Procedures

Christopher Barbaro was killed on October 24, 2007 when an assailant broke into his apartment in Winchester, attempted to steal his cash and rare coin collection, and shot him in the head.

Around 12:30 A.M. Christopher's brother and upstairs neighbor, Bryan Barbaro,1 heard several loud bangs from Christopher's apartment. Bryan investigated the noises and found Christopher on the ground; he had been shot in the head and was struggling to breathe. Bryan then encountered a man he later identified as Mr. Simon attempting to carry a bag of cash and coins out of Christopher's apartment. Bryan came "nose to nose" with Mr. Simon, who was unmasked and wearing a black jacket. Mr. Simon pointed a gun at Bryan and the two struggled. Mr. Simon shot Bryan in the chest. During the struggle, Mr. Simon's bag of coins ripped open and coins spilled out onto the floor. Immediately thereafter, Mr. Simon walked out the front door of the apartment and fled in a dark sport utility vehicle.

When the assailant was gone, Bryan returned to his apartment to call 911. He told the dispatcher that he and his brother had been shot by "Wally," who he described as a black male of Jamaican descent. He told the dispatcher he knew Wally from the local gym and that Wally drove a black sport utility vehicle.

When police arrived at the scene, they found Christopher dead of a gunshot wound to the head. He had been shot with a .25 caliber bullet and police found numerous other .25 caliber bullets and shell casings in the apartment. Coin books and cash were strewn across the staircase to Christopher's apartment. Police found a barely conscious Bryan in his upstairs apartment; Bryan told them "Wally, from the gym did this to me."

Bryan had met Wally Simon at the gym some years prior to this incident. Mr. Simon, a carpenter, occasionally worked for Bryan's construction company. Bryan introduced Mr. Simon to his brother, Christopher. Eventually Mr. Simon became Christopher's marijuana supplier when Christopher was engaged in selling marijuana.

Based on Bryan's statements police went to his local gym that morning and inquired about a client named Wally. Officers obtained Mr. Simon's name and address from the gym and began to surveil him. Officers followed Mr. Simon from his apartment to his wife's home in Medford,

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to his children's school, and then into downtown Boston to the office of his attorney, Daniel Solomon.

Police officers approached Mr. Simon immediately upon his arrival at Attorney Solomon's office. Mr. Simon, on the phone with Attorney Solomon at the time, informed officers that he would not talk to police until his attorney arrived. When Attorney Solomon came outside, officers told him "[t]here was an incident in Winchester last night, and we want to talk to [Mr. Simon] about it." Attorney Solomon told them he would meet with his client and inform them if Mr. Simon would be made available to speak with them.

Attorney Solomon and Mr. Simon conferred in Attorney Solomon's office for approximately an hour while police waited at a coffee shop. During this time period, the officers received a call from other officers who were at the hospital with Bryan Barbaro. The officers at the hospital reported that Bryan was out of surgery and had identified Mr. Simon as his assailant in a photographic array.2

The officers waiting to speak to Mr. Simon then called Attorney Solomon and again asked to interview Mr. Simon. Id. Attorney Solomon invited two officers, Trooper Scott McCormack and Detective Paul DeLuca to his office. There, the officers interviewed Mr. Simon for five to ten minutes.3 Attorney Solomon was present throughout the interview; there is no evidence that he knew the subject of the officers’ investigation at the time.

2. The Interrogation

Trooper McCormack first informed Mr. Simon that police were investigating a double shooting and home invasion that had occurred in Winchester the night before. One victim died of his injuries, officers told Mr. Simon, but the other had survived and identified Mr. Simon as the shooter in a photographic array. Mr. Simon went on to make two statements of which the jury was made aware at trial.

• Asked if he knew anyone in Winchester, Mr. Simon informed officers he knew Bryan Barbaro. Mr. Simon told them he met Bryan years before at the gym. Mr. Simon said he worked for Bryan on occasion and had been to his home several times. Mr. Simon also said he knew Bryan's brother, Christopher.

• Mr. Simon then told officers that he had an alibi for the night of the shooting. Mr. Simon explained that he watched a boxing match at home and then went to his friend's house in Lynn. Late that night, Mr. Simon said, he returned home to sleep. Mr. Solomon interjected at this point and advised Mr. Simon not to answer any further questions.
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3. The Commonwealth's Case at Trial

The Commonwealth tried Mr. Simon for first-degree murder on a felony murder theory. According to the Commonwealth, Mr. Simon broke into Christopher's home to rob him of his cash and valuable coin collection; he killed Christopher during the robbery and shot Bryan in order to escape the apartment. In addition to Mr. Simon's statements to police during his interrogation, the Commonwealth presented the jury with the following evidence.

First, the Commonwealth played the jury Bryan Barbaro's 911 call, during which he identified "Wally" from his local gym as the shooter. Bryan Barbaro died of natural causes before he could testify at trial, but the Commonwealth read his grand jury testimony into evidence. Id. Bryan's grand jury testimony was that he had known Mr. Simon for about seven years and that Mr. Simon was working with Christopher to sell marijuana. Bryan also testified to his memory of the shooting and to recognizing Mr. Simon as...

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