Whitney v. Spencer
| Decision Date | 29 September 2011 |
| Docket Number | C.A. No. 07-10820-MLW |
| Parties | JOHN WHITNEY, Petitioner, v. LUIS SPENCER, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
WOLF, D.J.
Petitioner John Whitney seeks habeas relief pursuant to 28 U.S.C. §2254. The court has thoroughly reviewed the record and memoranda submitted by the parties. For the reasons stated in this Memorandum and Order, the petition is being denied.
The following procedural history is not disputed.
In March, 1999, a Norfolk County grand jury returned an indictment charging petitioner with murder pursuant to Mass. Gen. Laws c. 265, §1. The charges arose out of the death of Alberto Portal. On June 9, 2000, following a jury trial, petitioner was convicted of murder in the second degree and sentenced to life in prison. Petitioner appealed his conviction.
While the direct appeal was pending, petitioner filed a motion for a new trial.1 On January 15, 2003, the trial court denied themotion after a three-day evidentiary hearing. See Commonwealth v. Whitney, No. 107023, at 6 (Jan. 15, 2003)("Whitney I")(Connolly, J.). Petitioner appealed the denial of a new trial.
Petitioner's direct appeal and appeal from the denial of a new trial were consolidated by the Massachusetts Appeals Court (the "Appeals Court"). See Commonwealth v. Whitney, 826 N.E.2d 219, 222 (Mass. App. Ct. 2005)(Cowin, J.)("Whitney II")(Cowin, J.). The Appeals Court affirmed the conviction and the denial of a new trial. See id. at 228. Petitioner moved for rehearing, and, on February 2, 2006, the Appeals Court denied the motion. See Commonwealth v. Whitney, No. 01-P-229, at 2 ("Whitney III"). The Supreme Judicial Court summarily denied petitioner's application for further appellate review. See Commonwealth v. Whitney, 843 N.E.2d 639 (Mass. 2006)(table). This petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 followed.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the court must determine whether the decision below (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. See 28 U.S.C. §2254(d); DeBurgo v. St.Amand, 587 F.3d 61, 67 (1st Cir. 2009); see also Foxworth v. St. Amand, 570 F.3d 414, 425 (1st Cir. 2009)(defining unreasonable application of clearly established federal law). In doing so, the court relies on the facts found by the state courts, supplemented with other facts from the record that are consistent with the state courts' findings. See Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006). The court must presume that the state court's factual determinations are correct unless the petitioner rebuts this "presumption of correctness" by coming forward with "clear and convincing evidence" to the contrary. See 28 U.S.C. §2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000); see also DeBurgo, 587 F.3d at 62 (); Lynch, 438 F.3d at 39 (same). This presumption of correctness applies whether the factual finding is made by a state trial court or a state appellate court. See Teti v. Bender, 507 F.3d 50, 58 (1st Cir. 2007).
In Ground One, petitioner asserts that he is entitled to relief under 28 U.S.C. §2254(d)(2) because the Appeals Court's adjudication was based on an unreasonable determination of the facts in light of the evidence presented in petitioner's trial and post-conviction evidentiary hearing. In support of thiscontention, petitioner challenges several specific factual determinations. Although the interplay between §2254(d)(2) and §2254(e)(1) has not been precisely established in this circuit, the First Circuit has applied the standard of §2254(e)(1) when deciding challenges to specific factual determinations, such as those challenged here. See Teti, 507 F.3d at 58 (citing Miller-El v. Cockrell, 537 U.S. 322, 341-42 (2003)); see also Robidoux v. O'Brien, 643 F.3d 334, 338 n.3 (1st Cir. 2011)("We have previously declined to delve into the relationship between subsections (d)(2) and (e)(1), as has the Supreme Court, and again have no need to do so." (internal citations omitted)). In DeBurgo, for example, where petitioner claimed relief under §2254(d)(2) based on an unreasonable determination of facts by the state court, the First Circuit explicitly applied §2254(e)(1)'s presumption of correctness and required any allegedly erroneous factual determinations to be rebutted by clear and convincing evidence. See 587 F.3d at 70-71.
Consequently, the court presumes the state courts' factual determinations to be correct unless petitioner overcomes that presumption by presenting clear and convincing evidence to the contrary. See Teti, 507 F.3d at 58.2 Thus, a petitioner "'must clear a high hurdle before [the court] will set aside any of the state court's factual findings.'" Allison v. Ficco, 388 F.3d 367,370 (1st Cir. 2004)(quoting Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2001)). "Under this regime, a federal habeas court ordinarily refrains from revisiting credibility determinations as 'it would be wholly inappropriate for a federal court to repastinate soil already thoroughly plowed and delve into the veracity of the witnesses on habeas review.'" Mastracchio, 274 F.3d at 598 (quoting Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir. 2001)).
Petitioner first challenges various factual determinations arising out of the testimony at trial. As explained below, the specific determinations challenged by petitioner are supported by trial testimony and are not rebutted by clear and convincing evidence. See Teti, 507 F.3d at 58.
In summary, based on the evidence presented at trial, the Appeals Court found that Alberto Portal, the victim, was married to Laura Portal. See Whitney II, 826 N.E.2d at 223. Laura Portal had a previous relationship with petitioner, which had resulted in the birth of a son, who lived with Laura and Alberto. See id. Petitioner told a friend, Tammy Buffum, that he was seeing Laura more frequently and that Alberto Portal did not treat petitioner's son well. See id.
On a night in early December, 1997, at approximately the time of night when Alberto Portal typically left his home to work anight-shift, petitioner arranged for a friend, Thomas Pratt, to drive him to a location approximately 200 to 300 feet from the home of Alberto Portal. See id. at 222-23. Petitioner got out of the car and directed Pratt to meet him later that evening at the Sportsman's Lounge. See id. at 222. Approximately one hour later, petitioner arrived the Sportsman's Lounge, stated that he had to drop a car off, and asked Pratt to follow in Pratt's car. See id. The car driven by petitioner matched the description of the victim's car. See id. at 224. Petitioner drove the car to an Enterprise Rent-a-Car parking area, parked it, and then departed with Pratt in Pratt's car. See id. at 223. Before parting company with Pratt, petitioner told Pratt that if anyone asked, especially the police, Pratt should say that he and petitioner had spent the night drinking at an American Legion Hall. See id.
Alberto Portal and his car were reported missing as of December 4, 1997, when he failed to report to work. See id. Approximately three months later, Alberto Portal's car was found in the same Enterprise Rent-a-Car parking area and in the same spot where petitioner had parked the car the previous December. See id. at 223-24. Alberto Portal's partially decomposed body was found in the trunk of the car, and the cause of death was later determined to be blunt trauma to the head. See id. at 223. At the time of his arrest on March 13, 1998, petitioner told police, Seeid.
The court addresses each challenge to a factual determination in turn. First, petitioner challenges the finding that Pratt "met the [petitioner] in Natick at approximately 6:30 p.m., and they drove in Pratt's automobile for about forty minutes to the Hopedale-Mendon area." Id. at 222. Pratt testified that he did not remember where he picked up petitioner in early December. See Supp. Ans. ("SA") Ex. 13 at 96, 98. However, he also testified that he picked up Whitney in Natick on December 4, 1997, at approximately 6:00 or 6:30 p.m., and that they then proceeded to a location on the border of Hopedale and Mendon. See id. at 52-57, 99. Although this discrepancy created an issue of credibility for a factfinder, information raising questions of credibility is not, under ordinary circumstances, clear and convincing evidence rebutting presumptively correct factual determinations. See Sanna, 265 F.3d at 10.
Second, petitioner challenges the finding that, at Whitney's direction, Pratt drove Whitney to "a location approximately 200 to 300 feet away from the home of the victim." See Whitney II, 826 N.E.2d at 222. In a related argument, he challenges the finding that "Pratt took the police to the area near the Portal home at which he had dropped off the defendant." See id. at 223. It is true that Pratt testified that he did not remember where he dropped off petitioner. See SA Ex. 13 at 108; see also id. at 150.However, he also testified that, after the investigation into the murder began, he and the police "went onto the road where [Pratt] dropped [petitioner] off," and that, when they were "pretty much near where [Pratt] dropped [petitioner] off," Pratt told police "'I think it's somewhere in this area.'" See id. at 82. Detective John Ryan, who was present...
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