Yildirim v. Demoura
| Decision Date | 20 November 2017 |
| Docket Number | CIVIL ACTION NO. 16–11780–DPW |
| Citation | 280 F.Supp.3d 206 |
| Parties | Cengiz YILDIRIM, Plaintiff, v. Douglas DEMOURA, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Cengiz Yildirim, Concord, MA, pro se.
Thomas E. Bocian, Office of the Attorney General, Boston, MA, for Respondent.
Petitioner Cengiz Yildirim seeks a writ of habeas corpus challenging his state court drug convictions. The Respondent, his prison custodian, has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Finding nothing contrary to established federal law in the state court convictions, I will grant Respondent's motion.
In June 2010, as part of an investigation conducted by the Massachusetts State Police Narcotics Unit for Suffolk County, Trooper Hollis Crowley, in an undercover capacity, was assigned to purchase narcotics from Petitioner. In the course of investigation, the unit had received a phone number of interest believed to be Yildirim's number by which Trooper Crowley could contact him. Trooper Crowley contacted Yildirim on four separate occasions—June 8, 2010, June 17, 2010, June 29, 2010, and June 30, 2010—for the purpose of purchasing cocaine. When speaking with Yildirim on the phone, she would request a specific amount of cocaine and subsequently would meet him to make the exchange. On June 8, she purchased $100.00 worth of cocaine; on both June 17 and June 29, she purchased $150.00 worth of cocaine, and on June 30, she purchased $1,100.00 worth of cocaine.
After the final exchange on June 30th, state troopers who had been providing surveillance for the exchange moved in and arrested Yildirim. The troopers, who had earlier secured a search warrant to search Yildirim's apartment, escorted Yildirim and his girlfriend, Erin Darden, to the apartment and executed the search warrant. The evidence seized was removed from the apartment.
Once the search was complete, Trooper Scott Holland interviewed Yildirim in the apartment and recorded the conversation. Yildirim apparently1 told the troopers that the responsibility was all his and that Darden had nothing to do with his transactions.
On August 10, 2010, a grand jury indicted Yildirim on two counts of trafficking in cocaine, in violation of MASS. GEN. LAWS CH . 94C § 32E(b), three counts of distribution of cocaine, subsequent offense, in violation of MASS. GEN. LAWS CH . 94C, § 32A(b), and four counts of drug violations near a school, in violation of MASS. GEN. LAWS CH . 94C, § 32J. [SA 145]
Yildirim was tried by a jury from June 28, 2011 to June 30, 2011. At trial, the Commonwealth offered the testimony of Trooper Crowley, in which she described her interactions with Yildirim and the four purchases she made; the testimony of other troopers involved in the investigation, including Trooper Holland who testified regarding the search of Yildirim's apartment and the statement Yildirim gave to the troopers; the testimony of two chemists; and the testimony of a Boston Police Detective. The Commonwealth also introduced the physical evidence obtained during the investigation, including the cocaine seized in Yildirim's apartment.
During defense's cross-examination of Trooper Crowley on the morning of June 29, 2011, Yildirim's trial counsel asked her if she knew an individual named David Ring, to which she answered affirmatively. When defense counsel asked whether Ring was a person involved in narcotics, the Commonwealth requested a sidebar discussion. At sidebar, defense counsel asserted that Ring provided Trooper Crowley with Yildirim's name and suggested that Ring's identity and relationship to the investigation would be relevant to the defense's case. The Commonwealth requested a brief break to research the issue further.
After the break, the Commonwealth continued to object to defense counsel's inquiry about Ring, prompting the judge to ask defense counsel to make an offer of proof. Defense counsel replied that Subsequently, defense counsel suggested that Yildirim was going to testify that Ring put the drugs in his house.2
The judge ruled that defense counsel could ask Trooper Crowley whether she received the petitioner's number from Ring, whether she had personal knowledge of how drugs ended up in Yildirim's apartment, and whether she had any personal knowledge of Ring's involvement. Defense counsel objected to the judge's ruling but nevertheless complied with it.
When cross-examination resumed, Trooper Crowley again testified that as an undercover drug detective, she knew Ring in her professional capacity. After a series of questions attempting to explore whether Ring was acting as an informant for the state police, questions to which the Commonwealth objected, the judge ruled that defense counsel could not inquire into Ring's involvement with the state police beyond the investigation into Yildirim.
After the lunch recess on June 29, 2011, the judge called counsel up to sidebar to disclose something the clerk observed during Trooper Crowley's testimony. During the testimony, the clerk had passed a note to the judge saying that the clerk saw an attorney in the back of the courtroom nodding yes and no as Trooper Crowley testified, in particular during the testimony about Ring. The judge stated that he "personally didn't observe it" and that after the clerk passed him the note he continued watching the attorney but the attorney "made no such motions after [he] started to observe him." The judge stated that he believed the nodding was a reaction to his evidentiary rulings limiting the scope of cross-examination, which the judge characterized as "not great, but it's a lot better than responding to the testimony."
The judge further noted that it was up to defense counsel "if there's any relief you want or if any discussion needs to be had" and gave defense counsel until the end of the day "if there's anything you want to do about that." Defense counsel stated that he would think it over, but in the end never lodged any motions or objections related to the incident.
Throughout the rest of the trial, defense counsel was afforded the opportunity to cross-examine the Commonwealth's witnesses about Ring, subject to the same restrictions placed on Trooper Crowley's cross-examination. In the afternoon on June 29, 2011, defense counsel asked Trooper Scott Cooper about Ring. Trooper Cooper testified that Ring talked to Trooper Crowley about illicit dealing in drugs, that Ring gave Trooper Cooper Yildirim's phone number, and that Ring introduced Trooper Crowley to Yildirim. Then, on June 30, 2011, defense counsel cross-examined Trooper Holland and asked him about Ring. Trooper Holland testified that he had heard of the name David Ring and had heard he was involved in Yildirim's case. When asked whether Ring was an informant, Trooper Holland replied "Yeah, he's a rat."
Yildirim was convicted of one count of trafficking in fourteen grams or more of cocaine, one count of trafficking in 200 grams or more of cocaine, and three counts of distribution of cocaine.3 He was sentenced to fifteen years to fifteen years and one day in state prison.
Yildirim filed a timely appeal of his convictions to the Massachusetts Appeals Court. While his appeal was pending, he filed a motion for post-conviction discovery as to the 200 gram trafficking count on the relationship between David Ring and the investigative and prosecution team. On February 3, 2014, the judge who presided over his trial denied Yildirim's motion for post-conviction discovery, finding that Ring's identity was not newly discovered because Yildirim knew of Ring before the trial.
On November 20, 2015, the Appeals Court upheld all of Yildirim's convictions and affirmed the denial of the motion for post-conviction discovery. Commonwealth v. Yildirim , 88 Mass.App.Ct. 1113, 40 N.E.3d 1057, 2015 WL 7356554, at *4 (Mass. App. Ct. 2015). The Appeals Court specifically considered and rejected the three theories of relief Yildirim presents in his current petition: that the judge impermissibly restricted his ability to cross-examine prosecution witnesses regarding Ring, that the judge failed to investigate, sua sponte , the effect, if any, of the attorney's gestures during Trooper Crowley's testimony, and that his attorney was ineffective for failing to request an investigation into the effect of the attorney's gestures.
As to the first issue of the judge's restrictions on cross-examination, the court stated that although Yildirim had a right under the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights to cross-examine the prosecution's witnesses, "the judge has discretion to limit cross-examination in certain circumstances, including, as here, where such questioning includes a collateral matter and where the theory of defense is too speculative." Id. at *3. The court noted that Yildirim's trial counsel "was permitted to ask the witness about Ring's role in the investigation," but that the judge did not abuse his discretion by preventing inquiry to Ring's prior criminal history. Id.
As to the second issue of the attorney's gestures, the court discussed how under Massachusetts state law, "[w]hen a judge is presented with a claim that the jury has been exposed to an extraneous influence, he must determine whether the extraneous material has the potential to prejudice the jury and, if so, he must conduct a voir dire examination of the jurors." Yildirim , 2015 WL 7356554, at *2 (citing Commonwealth v. Tennison , 440 Mass. 553, 800 N.E.2d 285, 291 (2003) ). The court found there was no evidence on the...
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