INDIRA TALWANI, District Judge.
After considering the Magistrate Judge's August 28, 2017,
IT IS SO ORDERED.
Ronald Blake ("Blake" or "the petitioner") is currently incarcerated at the Massachusetts Correctional Institution in with intent to murder, armed robbery, assault and battery, and assault and battery with a dangerous weapon. He seeks habeas relief under 28 U.S.C. § 2254, on two grounds. He argues first that the trial court erred in refusing to suppress evidence of an impermissibly suggestive identification procedure. He argues also that his trial counsel provided ineffective assistance by failing to adequately investigate or challenge the prosecution's timeline of events. (Dkt. No. 1). After careful consideration of the records, it is recommended that the Petition for Writ of Habeas Corpus be DENIED.
As summarized by the Massachusetts Appeals Court, the jury could have found the following facts:
Commonwealth v. Gomes, Nos. 10-P-2235, 12-P-767, 2014 WL 470361, at *1 (Mass. App. Ct. February 7, 2014).
On July 14, 2006, the grand jury indicted Blake and a co-defendant, Jorge Gomes, on charges of: (1) armed assault with intent to murder; (2) armed robbery; (3) assault and battery; (4) assault and battery with a dangerous weapon; and (5) kidnapping. (Dkt. 15, Volume I, S.A. 4; hereinafter [S.A. [page]).
On May 24, 2007, the petitioner moved to suppress an out-of-court identification that was based on a single photograph. (S.A. 5, 78-84). The relevant facts as found by the trial court on this issue (and as subsequently implicitly adopted by the Appeals Court (S.A. 127)) are as follows:
Commonwealth v. Blake, Nos. BRCR2006-0851, BRCR2006-0852, 2007 WL 3104405, at *1-2, (Mass. Sup. Ct. August 10, 2007).
On August 10, 2007, the trial court denied the motion to suppress. Id. at *1. The court concluded that the single photo procedure was not unreasonable under the circumstances because exigent circumstances warranted acting quickly:
Id. at *5.
On November 30, 2007, the jury convicted the petitioner and Gomes on all counts. (S.A. 7).
The petitioner appealed his conviction inter alia on the ground that the trial judge erred in refusing to suppress evidence of the identification. (S.A. 39). On December 31, 2010, the Massachusetts Appeals Court affirmed his conviction after finding that the identification procedure did not violate his due process rights. Commonwealth v. Blake, No. 09-P-1501, 2010 WL 5464847 (Mass. App. Ct. December 31, 2010). The Appeals Court reasoned that "even were the defendant able to show that the identification procedure was unnecessarily suggestive," he still could not prevail because the judge could properly find (as he did) that the police had a good reason to conduct the showup in the way that they did. The situation was urgent, and prompt identification would be fairly deemed necessary in the circumstances." Id. at *1 (citing Commonwealth v. Austin, 421 Mass. 357, 361-362 (Mass. 1995)). On March 31, 2011, the Massachusetts Supreme Judicial Court (SJC) denied the petitioner's request for further appellate review. Commonwealth v. Blake, 459 Mass. 1107, 944 N.E.2d 1043 (Table) (Mass. March 31, 2011).
On January 27, 2011, shortly after the Massachusetts Appeals Court affirmed the petitioner's conviction, and just before the SJC denied his request for further review, the petitioner moved in the superior court to join Gomes' motion for a new trial. (S.A. 328). The petitioner also moved separately for a post-verdict required finding of not guilty or a new trial. (S.A. 339). On November 28, 2011, the superior court denied both motions. (S.A. 220-234). On February 7, 2014, and following appeals by both Gomes and the petitioner, the Appeals Court affirmed the superior court's rulings, and the SJC subsequently denied the request for further appellate review. Gomes, 2014 WL 470361, at *3; Blake, 467 Mass. 1106, 6 N.E.3d 547 (Table) (Mass. April 2, 2014).
On April 28, 2014, the petitioner filed the present habeas petition. It asserts four claims for relief. Paraphrasing, Claim One alleges that the single photo identification procedure the officers used was unnecessarily suggestive and violated the petitioner's right to due process. Claim Two alleges that there was insufficient evidence to prove the petitioner's guilt. Claim Three alleges that the prosecutor committed misconduct. Finally, Count Four alleges that the petitioner's trial counsel provided ineffective assistance by failing to successfully challenge the prosecution's offered timeline of events.
Since filing his petition, however, Blake has apparently abandoned Claims Two and Three. He does not address either claim in his memorandum and he labels the first and fourth claims as "Ground One" and "Ground Four," respectively, suggesting that he knew that he was omitting Claims Two and Three, and meant to omit them. (Dkt. No. 28). Following suit, the respondent's opposition similarly addresses only Claims One and Four and eschews any treatment of Claims Two and Three. (Dkt. No. 34). Consequently, this court views Claims Two and Three as waived and does not address them further here. See Perkins v. Russo, No. 02-10460-MLW, 2007 WL 2507741, at *3 (D. Mass. August 31, 2007); see also Smiley v. Maloney, No. 01-11648-GAO, 2003 WL 23327540, at *15 (D. Mass. October 31, 2003), aff'd, 422 F.3d 17 (1st Cir. 2005) (finding claim waived where "petitioner has not, in his Memorandum of Law in support of the petition, advanced any argument, much less reasoned argument, on this point").
The standard of review to be applied to a habeas corpus petition is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under this standard, a federal habeas court may not grant a writ of habeas corpus unless the underlying state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (1). As the United States Supreme Court has explained:
Bell v. Cone, 535 U.S. 685, 694 (2002).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 39 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "[C]learly established law signifies the holdings, as opposed to the dicta, of [the United States Supreme] Court's decision." Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting Williams v. Taylor, 529 U.S. at 412; internal quotations omitted).
A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06. A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
A state court's decision is an unreasonable application of clearly established federal law if it is objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-521 (2003). An "unreasonable application is different from an incorrect one." Id. In order to reach the level of "unreasonable," "some increment of incorrectness beyond error is required." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc). This increment "need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." Id. Thus, a habeas petitioner "must do more than merely identify an incorrect result." Jackson v. Coalter, 337 F.3d 74, 81 (1st Cir. 2003). In short, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000).
Even where the habeas court finds that the state court committed an error, habeas relief is only appropriate if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). In other words, habeas relief cannot be granted for "harmless" errors, which are defined as those errors that did not impact the verdict.
Additional information regarding the standard of review is provided as appropriate in discussing Blake's particular claims.
Blake claims that his due process rights were violated when the trial court refused to suppress evidence of his out-of-court identification based on a single photograph. Blake is not entitled to habeas relief on this claim because he cannot show that the Appeals Court's resolution of this claim was contrary to clearly established federal law, or involved an unreasonable application thereof.
The standard of review in claims of this nature is governed by Simmons v. United States, 390 U.S. 377 (1968). Under Simmons, Blake must show: "(1) that the identification procedure was impermissibly suggestive and (2) that in the totality of the circumstances, a likelihood of irreparable misidentification exists." DeLong v. Brady, 723 F.Supp.2d 376, 394 (D. Mass. 2010); see also Manson v. Brathwaite, 432 U.S. 98 (1977) (noting that "Wuries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature" and finding that evidence should not be suppressed where a suggestive identification procedure did not, under the totality of the circumstances, create a substantial likelihood of irreparable misidentification).
The Appeals Court relied on its own precedent and applied a standard of review similar to the one established by the Supreme Court in Simmons. See Blake, No. 09-P-1501, 2010 WL 5464847, at *1 n.2 ("We acknowledge that although one-on-one identifications are generally disfavored, they do not raise due process concerns unless it is determined that they are `unnecessarily suggestive and conducive to irreparable mistaken identification.'") (quoting Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006)).
As noted, the Appeals Court found that, even assuming Blake could satisfy the first prong of the test and show the identification procedure was unnecessarily suggestive, it did not raise due process concerns because the officers' actions were justified based on exigent circumstances. Blake, 2010 WL 5464847 at *1 (citing Austin, 421 Mass. at 461). Notwithstanding Blake's protestations to the contrary, there is no basis to question the state court's finding. The police were trying to locate and apprehend two armed highjackers who had stabbed a kidnapped victim, ostensibly with the intent to kill him. Given the clear and present danger posed by their continued presence in the community, and the need to focus the search as quickly as possible to locate and apprehend them, conducting the identification procedure quickly was necessary under the circumstances to allow the police to determine whether the petitioner and Gomes were potentially involved, and if not to continue pursuing other leads to find the true still-at-large assailants.
To be sure, Blake contends that Kendrick testified at trial that the identification procedure did not occur until at least a full day later, calling into question the continued legitimacy of the trial court's pre-trial finding that exigent circumstances existed to justify the procedure. Even assuming the circumstances surrounding the identification procedure were not plainly exigent, that fact would not standing alone categorically render the procedure impermissibly suggestive under Art. 12. See Austin at 361 (holding "[e]xigent or special circumstances are not a prerequisite to such confrontations," but are instead one factor among many to determine whether there was good reason for such confrontations). In any event, Kendrick's testimony, in context, hardly provides a basis to revisit the trial court's findings and rulings. For one, the trial court (as well as the jury) might have fairly reasoned that Kendrick, like any witness, could simply have been mistaken in his recollection of when the procedure occurred. Moreover, Kendrick's testimony must be balanced and assessed against the force of countervailing testimony that the identification procedure occurred just hours after the incident. Finally, Blake cannot seriously be heard to advance this argument with much force here where his tack at trial was to argue inappositely that Kendrick had credibility issues and was not to be believed.
Even assuming, arguendo, that the identification procedure was unnecessarily suggestive given the totality of the circumstances, any error in denying the petitioner's suppression motion was harmless. Under the harmless error standard articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993), habeas relief is granted only if the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. at 623. Even without evidence of Kendrick's out-of-court identification, there was ample other evidence adduced at trial to show that Blake and Gomes were the two men who robbed the victim. Among other things, the police found the two defendants at a location at Ruth Street which the cab company said was the victim's last pickup, a security camera at the Fall River Pier recorded the arrival of the victim's cab containing the two defendants, and the security camera also recorded the two defendants departing "on foot several minutes after, wearing clothing similar to the defendants' at the time of their arrest" and similar to the "general description Sullivan had been given" by the victim. (V.III, Tr. V.4 p. 19-22, 27, 57-58, 79-80, 153-154, 196-198; Tr. V.5, p.48-49, 53-54, 58-59). In addition, Kendrick identified the petitioner in court as the one who attacked him. (V. II, Tr. V.II, p.181-82). Consequently, as there was ample evidence to show that Blake and Gomes were the two men who robbed the cab driver, Blake cannot show that admitting the out-of-court identification evidence had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. at 623.
The petitioner argues that his trial counsel provided ineffective assistance by failing to fully investigate and challenge as physically implausible the prosecution's suggested timeline of events. In affirming the trial court's denial of the petitioner's motion for a new trial on this ground, the Massachusetts Appeals Court recounted the salient facts as follows:
Gomes, 2014 WL 470361, at *2. The Massachusetts Appeals Court went on to analyze the claim as follows:
Id. at *1-2.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test for showing ineffective assistance of counsel. In order to succeed under Strickland, a defendant must first demonstrate that counsel's performance was deficient, requiring a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 688. Second, the defendant must show that the deficient performance prejudiced the defense by showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. Id. at 692. However, "[b]ecause of the difficulties inherent in making the valuation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Massachusetts reviews ineffective assistance of counsel claims pursuant to Commonwealth v. Saferian, 366 Mass. 89 (Mass. 1974). The Saferian standard asks "whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense." Saferian, 366 Mass. at 96. Whether counsel should call a particular witness is a strategic decision and as such will constitute ineffective assistance only if it is "manifestly unreasonable," meaning lawyers of ordinary training and skill in the criminal law would not consider the decision competent. Commonwealth v. Pillai, 445 Mass. 175, 186-187 (Mass. 2005) (quoting Commonwealth v. Levia, 385 Mass. 345, 353 (1982)).
The First Circuit has determined that the Saferian standard is the "functional equivalent" of the Strickland standard for ineffective assistance of counsel. See Lynch v. Ficco, 438 F.3d 35, 48 (1st Cir. 2006); Mello v. DiPaulo, 295 F.3d 137, 144 (1st Cir. 2002); see also Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994) (noting "the SJC itself . . . has concluded that if their state's test is satisfied, `the federal test is necessarily met as well.'"). Therefore, even though the state court addressed the claim solely under the state law standard, it shall be presumed the federal law adjudication was subsumed within the state law adjudication. See Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007).
The Court's task under the deferential standard of review set forth in 28 U.S.C. 2254(d) is to determine whether the state court's application of Strickland, subsumed within the application of Saferian, was unreasonable. See 28 U.S.C. 2254(d) (1); Shuman v. Spencer, 636 F.3d 24, 31 (1st Cir. 2011) (holding claims of ineffective assistance of counsel involve mixed questions of law and fact and are reviewed under the unreasonable application clause of 28 U.S.C. 2254 (d) (1)).
This court discerns no error in the state court's treatment of Blake's ineffective assistance claim. The state court reasonably found that defense counsel's decision to forego presenting defense witnesses to challenge the prosecution's timeline, and instead to emphasize points counsel had already secured from the Commonwealth's witnesses on cross examination, was "prudent," particularly where the Commonwealth otherwise almost surely would have been permitted to put on rebuttal evidence further supporting Kendrick's account and the prosecution's timeline of relevant events. The Supreme Court has stated that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. The First Circuit has similarly noted that "[t]he decision whether to call a particular witness is almost always strategic, requiring a balancing of the benefits and risks of anticipated testimony." United States v. Lema, 987 F.2d 48, 54 (1st. Cir. 1993). Here, as the Appeals Court noted, trial counsel made a strategic decision to challenge the timeline evidence through cross-examination rather than by calling his own witness. This was a strategic decision that cannot be said to be unreasonable. Phoenix v. Matesanz, 233 F.3d 77, 84 (1st Cir. 2000) (upholding denial of habeas relief where trial counsel made progress in discrediting prosecution expert through cross-examination and decided not to call his own expert even where doing so "would probably have been helpful at trial"). As Blake advances no serious reason to call the state court's reasoning into question, he cannot show that his counsel's performance was deficient or deprived him of his right to a fair trial. In short, the claim fails.
For the foregoing reasons, it is respectfully recommended that the petitioner's habeas petition be DENIED. The parties are hereby advised that under the provisions of Federal Rule of Civil Procedure 72(b), any party who objects to this recommendation must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Secretary of Health and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140 (1985).
"In contrast, under the Fourteenth Amendment to the United States Constitution, a motion judge must apply a two-step analysis to the question of admissibility. The judge asks first whether the eyewitness identification was obtained by a police procedure that was unnecessarily suggestive. If it was, the judge then asks whether, notwithstanding the unnecessarily suggestive procedure, the eyewitness identification was reliable under the totality of the circumstances. Because reliability is the linchpin, the identification, if found reliable, is admissible even where obtained through an unnecessarily suggestive procedure. The United States Supreme Court expressly rejected the per se rule of exclusion as going too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant. . . . [T]he standard for the admissibility of an identification under the Massachusetts Constitution is more favorable to a defendant than the standard under the United States Constitution . . . ." Walker, 460 Mass. at 599 n.13 (internal citations and quotation marks omitted).
Because the Massachusetts standard is more protective of defendants than is its federal counterpart, then a ruling that an identification procedure complied with the state standard means that the procedure necessarily complied with the federal constitutional standard as well. Accordingly, this court may still look to the Appeals Court's state law analysis as it evaluates the merits of Blake's federal constitutional claim in this habeas proceeding. See Cavitt v. Saba, 57 F.Supp.3d 81, 92 n.10 (D. Mass. 2014).
