Szczuka v. Tucker

• Decision Date: 17 November 1997
• Docket Number: No. Civ. A. 96-11884-PBS.,Civ. A. 96-11884-PBS.
• Citation: 3 F.Supp.2d 58
• Parties: Gregory C. SZCZUKA, Petitioner, v. John D. TUCKER, Respondent.
• Court: U.S. District Court — District of Massachusetts

3 F.Supp.2d 58

Gregory C. SZCZUKA, Petitioner, v. John D. TUCKER, Respondent.

No. Civ. A. 96-11884-PBS.

United States District Court, D. Massachusetts.

November 17, 1997.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

SARIS, District Judge.

INTRODUCTION

Pro se Petitioner Gregory Szczuka, convicted of second-degree murder in 1979, makes an application to this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He advances six claims on behalf of his petition, which comes after Massachusetts state courts upheld his conviction on direct appeal in 1984 and denied four motions for a new trial between 1984 and 1995.

Because four of his claims are not collaterally reviewable and the other two do not refer to state court decisions that were "contrary to ... clearly established Federal law," 28 U.S.C. § 2254(d)(1) (1996), Szczuka's petition is DENIED.

BACKGROUND

A. Factual Background

The Court reviews the relevant facts in the light most favorable to the verdict. Stewart v. Coalter, 48 F.3d 610, 611 (1st Cir.), cert. denied, 516 U.S. 853, 116 S.Ct. 153, 133 L.Ed.2d 97 (1995).

At about 1 A.M. on November 8, 1973, after several hours of drinking, Kevin Robinson and Kenneth Wescott left a lounge on Route 1 in Rowley, Massachusetts with three other men and one woman. The group proceeded south on Route 1 in Robinson's automobile. At approximately the same time, Szczuka and his cousin, Kenneth Carpenter, coincidentally left another bar in Rowley after a similar evening of drinking. Szczuka, with his cousin in the passenger seat, also drove his car south on Route 1.

The cars encountered one another shortly thereafter along Route 1 and, following some "senseless antics," both drivers stopped their cars on the side of the highway. Szczuka's vehicle was some distance in front of Robinson's. All of the males in both cars stepped out onto the roadside. As Szczuka left his vehicle, he reached under the seat and took out a .357 magnum revolver. He then walked toward the center of the road. As the group from the other automobile approached him, Szczuka shot Robinson in the abdomen and then Wescott in the chest.

Though Szczuka testified at trial that he was afraid for his life due to the approach of the others and their wielding of a knife, no knife was ever found. Szczuka and Carpenter got back in Szczuka's automobile and drove quickly away. Wescott died the following evening, and Robinson died nearly five months later on April 5, 1974. Szczuka was not identified as the assailant until December 1978, when his wife gave the police information about the shootings.

B. Procedural Background

A jury convicted Szczuka of two counts of second-degree murder, and the trial judge sentenced him to two concurrent life sentences on May 24, 1979. Szczuka was represented by Alan Caplan, Esq., at trial. The trial judge denied Szczuka's first motion for a new trial in 1982, and that denial was consolidated with the direct appeal of the conviction. Appellate counsel was James B. Krasnoo, Esq. On April 17, 1984, the Massachusetts Supreme Judicial Court (the "SJC") affirmed Szczuka's conviction and the trial judge's denial of his first motion for a new trial. Commonwealth v. Szczuka, 391 Mass. 666, 464 N.E.2d 38 (1984) ("Szczuka I").

Szczuka, who is serving his sentence at the Pondsville Correctional Center in Norfolk, Massachusetts, has since filed three more motions for a new trial, all of which have been denied by the same judge who presided at trial. He denied Szczuka's second pro se motion on April 1, 1991, and the SJC affirmed the judge's decision the following year. Commonwealth v. Szczuka, 413 Mass 1004, 600 N.E.2d 575 (1992) ("Szczuka II"). On appeal of the second motion, he was represented by Bruce R. Taub, Esq. Szczuka's third motion for a new trial was denied in 1993, and he did not appeal the denial. However, he filed a fourth motion for a new trial, styled as an "amendment" to the third motion, in 1994. He was represented by a fourth attorney, Richard Abbott, Esq. The trial judge denied this motion as well, and the Massachusetts Appeals Court summarily affirmed the denial. Commonwealth v. Szczuka, 39 Mass.App.Ct. 1111, 656 N.E.2d 589 (1995) (table). Szczuka applied for further appellate review of the decision; that request was denied by the SJC. Commonwealth v. Szczuka, 421 Mass. 1106, 657 N.E.2d 1272 (1995) (table).

Szczuka sought habeas corpus relief from this Court on September 18, 1996. The Court allowed the respondent's motion to dismiss on March 11, 1997 due to the inclusion in the petition of two claims that had not been exhausted in state court. It permitted Szczuka to refile the petition without the unexhausted grounds, and the Court's ruling today is based on that amended application.

DISCUSSION

Szczuka raises six numbered claims in his petition to this Court for a writ of habeas corpus: (1) that the trial judge improperly allowed a peremptory challenge of a woman based on stereotype by the prosecutor; (2) that the trial judge improperly instructed the jury that use of a deadly weapon was proof of malice; (3) that the trial judge erroneously instructed the jury that intoxication cannot mitigate murder to manslaughter; (4) that the trial judge improperly refused to give a "sudden combat" instruction to the jury; (5) that the trial judge shifted the burden of proof to the defendant on the issue of malice; and (6) that the defendant received ineffective assistance of counsel at the trial and direct appellate stages of the state proceedings. Because Szczuka's petition for habeas corpus was filed after April 24, 1996, the 1996 version of 28 U.S.C. § 2254 applies to this case. Lindh v. Murphy, 521 U.S. 320, ___, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997).

A. Procedural Default (Claims 2, 4, 5 and 6)

The Court rejects Claims Two, Four, Five and Six of Szczuka's petition because they have been procedurally defaulted and thus are not amenable to federal habeas corpus review. "[F]ederal courts sitting to hear habeas petitions from state prisoners are barred from reviewing federal questions which the state court declined to hear because the prisoner failed to meet a state procedural requirement." Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir.1997) (citing Lambrix v. Singletary, 520 U.S. 518, ___-___, 117 S.Ct. 1517, 1522-23, 137 L.Ed.2d 771 (1997)). Enforcement of the state procedural rule is valid so long as the rule is "consistently applied" and the state court did not waive the rule by "resting its decision on some other ground." Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.1995). A valid invocation of such a rule "forecloses federal habeas review unless the petitioner can demonstrate cause for the default and prejudice stemming therefrom, or, alternatively, unless the petitioner can show that a refusal to consider the merits of the constitutional claim will work a miscarriage of justice." Id. (citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) and Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)).

1. Application of the State Rule

The state courts explicitly rejected these four claims by applying a state rule of procedure. The trial judge refused to consider versions of Claims Two, Four and Five in Szczuka's second motion for a new trial because they were new claims. The SJC affirmed the decision under Rule 30(c)(2) of the Massachusetts Rules of Criminal Procedure because all three claims "could have been raised in the defendant's first motion for a new trial," and it deemed them "waived."¹ Szczuka II, 413 Mass. at 1005 600 N.E.2d 575. At the same time, the SJC refused to hear the merits of what is now Claim Six, ineffective assistance of counsel at trial for failure to object to jury instructions and ineffective assistance on the consolidated appeal of the trial and of the first motion for a new trial, because it was raised for the first time on the appeal of the second motion for a new trial. The SJC's review is limited to grounds raised before the trial court. Id. (citing Commonwealth v. McLaughlin, 364 Mass. 211, 235, 303 N.E.2d 338 (1973)). When Szczuka reasserted the ineffective assistance of counsel claim (and other claims) in his third motion for a new trial, the trial judge explicitly rejected it because the motion raised "no question which could not have been raised in former appeal and motions for [a new trial]." Commonwealth v. Szczuka, Nos. 99213, 99214 (Mass.Super.Ct. Jan. 21, 1993) (order denying motion for new trial).²

Each of the four claims was denied solely on the procedural grounds of Rule 30(c)(2) without reference to any substantive grounds. Therefore, since the state court did not waive the procedural bar, the claims are in default because Rule 30 is consistently enforced by the Massachusetts courts. See Commonwealth v. Watson, 409 Mass. 110, 112, 565 N.E.2d 408 (1991) ("A motion for a new trial may not be used as a vehicle to compel review and consideration of questions of law, on which a defendant has had his day in an appellate court, or on which he has foregone that opportunity.") (internal quotations and alterations omitted); Fogarty v. Commonwealth, 406 Mass. 103, 107, 546 N.E.2d 354 (1989). Exceptions to the rule are made only in "extraordinary" cases, and the refusals by the trial and appellate courts to exercise their discretion to review the merits of Szczuka's defaulted claims were consistent with Massachusetts jurisprudence. See id. at 108, 546 N.E.2d 354. The First Circuit has referred to the exercise of Rule 30 as a valid procedural bar to federal habeas review. Hall v. DiPaolo, 986 F.2d 7, 11 (1st Cir.1993).³

2. Cause and Prejudice

In order for this Court to hear the merits of these four claims in spite of the application of the state rule, Szczuka must show both cause for and prejudice from his procedural default. Burks, 55 F.3d at 716 (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546). "To excuse...