Sok v. Spencer
| Decision Date | 24 September 2008 |
| Docket Number | Civil Action No. 05-11358-RGS. |
| Citation | 578 F.Supp.2d 281 |
| Parties | Loeurth SOK v. Luis SPENCER, Superintendent MCI, Norfolk. |
| Court | U.S. District Court — District of Massachusetts |
David P. LiBassi, Law Office of David P. LiBassi, Lowell, MA, for Loeurth Sok.
Randall E. Ravitz, Office of the Attorney General, Boston, MA, for Kathleen Denehy.
MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I fully accept Magistrate Judge Collings's meticulously detailed Report and his conclusion that the four issues presented by the petition have no merit. (1) I agree that the State court applied the correct legal rules in finding Petitioner's waiver of his Miranda rights to have been knowing and voluntary. The State court fully considered the totality of the circumstances and based its reasonable (and conclusive) finding of the validity of the waiver on petitioner's credibility (or more precisely, his lack thereof). (2) While I am inclined to believe that the State court inappropriately admitted portions of a statement of a non-testifying witness (Thethbun), see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I agree with Magistrate Judge Collings that the statement did not have a "substantial and injurious effect or influence in determining the jury's verdict."1 see Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See also Crawford, 541 U.S. at 76, 124 S.Ct. 1354 (Rehnquist, C.J., concurring). (3) I agree with the Magistrate Judge that the insufficiency of the evidence claim, however cast, has no factual or legal merit.2 (4) Finally, I share the Magistrate Judge's view that there is no basis under federal law for finding the Massachusetts Home Invasion Statute, Mass. Gen. Laws, ch. 265, § 18C, unconstitutionally vague. Whatever the infirmity injected into the Statute by a clumsy 1998 legislative amendment redefining the range of sentence for offenders armed with firearms, it was cured by the narrowing construction of the State Appeals Court. Because nothing more need be said than what is carefully set out in the Magistrate Judge's Report, I adopt his Recommendation.
ORDERFor the foregoing reasons, as more fully explained in the Magistrate Judge's Report, the petition is DISMISSED with prejudice. The Clerk will now enter judgment and close the case.
SO ORDERED.
REPORT AND RECOMMENDATION ON PETITION UNDER 28 U.S.C. § 2254 FOR A WRIT OF HABEAS CORPUS (# 1)
Presently before the Court is petitioner Loeurth Sok's ("Sok" or "petitioner") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (# 1). Following a jury trial in Massachusetts state court, Sok was convicted of, inter alia, robbery while armed and masked, Mass. Gen. L. ch. 265, § 17, home invasion under Mass. Gen. L. ch. 265, § 18C, and assault with a dangerous weapon under Mass. Gen. L. ch. 265, § 15 B. Sok is currently incarcerated in Massachusetts state prison.
Sok filed his section 2254 petition on June 28, 2005, with accompanying exhibits. Certain of his claims were found to be unexhausted (see Report and Recommendation on Motion to Dismiss Petition (# 6), # 11), and Sok withdrew those claims so that he could proceed on the merits of his exhausted claims (see Petitioner's Response to the Report and Recommendations of Judge Robert B. Collings, # 12 at 1). Thereafter, the respondent filed an Answer to Amended Petition (# 14) and a Rule 5 Appendix Accompanying ... Answer to Amended Petition (# 15). On August 31, 2007, Sok filed his Memorandum in Support of Relief Pursuant to his Habeas Corpus Petition (# 21), with accompanying exhibits (# 23). On November 23, 2007, the respondent filed a Memorandum of Law in Opposition to Petition (# 26), and on December 24, 2007, the petitioner filed a Response to Opposition [sic] to Habeas Relief (# 29).
Sok seeks to challenge the constitutionality of his detention on four grounds: 1) that he did not voluntarily and intelligently waive his Miranda rights and that his confession, which was admitted at trial, should therefore have been suppressed; 2) that his rights under the Confrontation Clause of the Sixth Amendment were abridged when the state trial court admitted into evidence at trial a statement given to police by a witness/victim who was unable to testify at trial; 3) that there was insufficient evidence to support his conviction; and 4) that the 1998 version of the Massachusetts home invasion statute, under which he was convicted, is unconstitutionally vague. The petition is ripe for consideration on the merits of these remaining claims. For the reasons set out below, the Court will recommend that the petition be denied in its entirety.
The following facts provide an overview. The Court develops further factual details as needed in its discussion of Sok's individual claims, mindful that the Court is "bound to accept the state court findings of fact unless [the petitioner establishes] by clear and convincing evidence[ ] that they are in error." McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc) (citing 28 U.S.C. § 2254(e)(1)).
On January 9, 1999, at about 1:00 a.m., three or four individuals forced their way into an apartment in Lowell, Massachusetts and robbed the occupants of cash, jewelry and cigarettes. (See # 23, Exh. 4, Memorandum & Order on Defendant's Motion to Suppress Custodial Statement, at A-1) According to the victims, the intruders were wearing masks and were armed. Several weeks later, on Friday, February 26, 1999, Sok was arrested in connection with the robbery, and taken to the Lowell police department. (# 23, Exh. 4 at A-2) At some point, Sok asked to speak with the arresting officer, Detective Philip Conroy ("Conroy"). Conroy told Sok that he did not have time to talk then, but that he could talk later. The following evening Conroy interviewed Sok, after having read Sok his Miranda rights. At that point, according to Conroy, Sok confessed to his involvement in the home invasion. (See # 23, Exh. 4 at A-3-A-6)
On March 31, 1999, a Middlesex County grand jury indicted Sok on, inter alia, three counts of robbery while armed and masked or disguised and one count of home invasion, and Sok pled not guilty to all counts at his arraignment on April 22, 1999. ) Before his trial, Sok sought to suppress the confession on the grounds that Sok's waiver of his Miranda rights was not voluntary and intelligent. (See # 15, Exh. D, Motion to Suppress Hearing) A Massachusetts Superior Court judge (McHugh, J.) conducted a suppression hearing on July 13, 1999, at which Sok and Conroy testified. The state court determined that the defendant's waiver of his Miranda rights and confession were voluntary and intelligent, and denied the motion to suppress. (See # 23, Exh. 4 at A-10)
Thereafter, Sok was tried in the Middlesex Superior Court over five days between December 5 and December 11, 2000. At Sok's trial, the defense sought and was allowed to read into evidence the previous testimony of Ronny Thethbun ("Thethbun"), one of the victims. Thethbun was unable to testify at Sok's trial for medical reasons, (see # 15, Exh. H, Tr. IV: 74), but had previously testified at the trial of John Prum ("Prum"), who had also been arrested in connection with the robbery. In her testimony at Prum's trial, Thethbun stated that when she identified Sok from a photo array at the Lowell police station on February 9, 1999, the police had "already circled" Sok's picture. (# 15, Exh. H, Tr. IV: 73) A jury subsequently acquitted Prum of all charges. At Sok's trial, Sok's counsel was permitted to introduce a portion of Thethbun's testimony given at Prum's trial. In an apparent effort to impeach Thethbun's previous testimony, the Commonwealth was permitted to introduce Thethbun's signed statement to police in which she stated, inter alia, that she picked Sok out of a photo array on the computer. ) Sok objected to the admissibility of the signed statement, but the state trial court overruled that objection. (# 15, Exh. H, Tr. IV:83)
Sok was found guilty on all charges, and was sentenced to a term of twenty years to twenty years and one day for the home invasion conviction, and concurrent sentences on other counts. Sok appealed his conviction and sentence and on May 6, 2004, the Massachusetts Appeals Court ("the Appeals Court") affirmed the conviction, but vacated the sentence on the home invasion conviction and remanded for resentencing on that count to a maximum sentence of twenty years and a minimum sentence of ten years imprisonment. (See # 1, Exh. 3 at 4-5) The Massachusetts Supreme Judicial Court denied Sok's Application for Further Appellate Review on June 30, 2004. (See # 1 at 3 ¶ 9)
"[A] federal court may not issue a habeas petition `with respect to any claim that was adjudicated on the merits in State court proceedings' unless the state court decision: 1) `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) `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" McCambridge, 303 F.3d at 34 (quoting 28 U.S.C. § 2254(d) (Supp. II 1996)). A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)(O'Connor, J.). A...
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