TIMOTHY S. HILLMAN, DISTRICT JUDGE.
On March 14, 2011, a Worcester County jury found Christian Muller ("Petitioner") guilty of seven offenses: two counts of first-degree murder, one count of armed assault with intent to murder, three counts of armed home invasion, one count of unlawful possession of a firearm. (Docket No. 16, at 9).
On March 31, 2011, Petitioner filed a notice of appeal to the SJC. Id. at 10. Petitioner argued:
Commonwealth v. Muller, 477 Mass. 415, 416, 78 N.E.3d 51 (2017). Petitioner sought relief pursuant to Mass. Gen. Laws ch. 278, § 33E, which permits the SJC to "(a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence." The SJC affirmed the convictions and declined to grant relief pursuant to Section 33E. Id.
On October 22, 2018, Petitioner filed his habeas petition in this Court. (Docket No. 1). Petitioner alleges the following grounds for relief:
(Docket No. 1, at 6, 8, 9, 11). On February 1, 2019, Superintendent Collette Goguen ("Respondent") moved to dismiss the petition. (Docket No. 12). For the reasons stated below, the petition for writ of habeas corpus (Docket No. 1) is
In federal habeas proceedings, "the state court's factual findings are entitled to a presumption of correctness that can be rebutted only by clear and convincing evidence to the contrary." Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002). That presumption "remains true when those findings are made by a state appellate court as well as when they are made by a state trial court." Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (citations omitted). In this case, the Massachusetts Supreme Judicial Court ("SJC") summarized the Commonwealth's case as follows:
Commonwealth v. Muller, 477 Mass. 415, 416-19, 78 N.E.3d 51 (2017).
The standard of review for habeas corpus petitions is set forth in 28 U.S.C. § 2254(d), as amended by the AEDPA. Harrington v. Richter, 562 U.S. 86, 97, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Under this standard, a federal court may only grant the writ if the underlying state court adjudication resulted in a decision that either "(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.'" Brown v. Ruane, 630 F.3d 62, 66-67 (1st Cir. 2011) (quoting 28 U.S.C. § 2254(d)(1)-(2)).
A state court decision is "contrary to" clearly established Supreme Court precedent when "it applies a rule that contradicts the governing law set forth in the Court's cases or if it confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a different result." Price v. Vincent, 538 U.S. 634, 634-35, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). A state court unreasonably applies clearly established Supreme Court precedent "if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular case." White v. Woodall, 572 U.S. 415, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014). "Evaluating
Petitioner is also entitled to habeas relief if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Under 28 U.S.C. § 2254(e)(1), "`a determination of a factual issue made by a State court shall be presumed to be correct.' The petitioner bears the burden of overcoming that presumption by proving `clear and convincing evidence.'" Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007); see also Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2001) ("A habeas petitioner therefore must clear a high hurdle before a federal court will set aside any of the state court's factual findings."). In addition, "[t]he `presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.'" Teti, 507 F.3d at 58 (quoting Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003)).
In addition, a petitioner is not entitled to habeas relief on the basis of a non-structural constitutional error, unless he "can establish that it resulted in `actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Specifically, a petitioner must show that the error "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 S.Ct. 1557 (1946)). Further, "when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable." Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (emphasis in original); see also Connolly v. Roden, 752 F.3d 505, 511 (1st Cir. 2014) ("There is clear logic [to this framework]: if an error had a `substantial and injurious' effect on a jury's verdict ... then it is necessarily unreasonable to conclude that the error was harmless beyond a reasonable doubt.").
"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).
The First Circuit has consistently held that the Massachusetts contemporaneous objection rule, which requires a party to make their objection known at the time of the ruling, Mass. R. Crim. P. 22, is an
While the SJC assessed the merits of Petitioner's claim under the miscarriage of justice standard, this discretionary review does not constitute a waiver of the contemporaneous objection rule. Janosky, 594 F.3d at 44 (citations omitted); see also Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir. 2002) ("Miscarriage of justice review by the SJC ... does not itself create independent rights in habeas petitioners."); Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991) ("The mere fact that a state appellate court engages in a discretionary, and necessarily cursory, review under a `miscarriage of justice' analysis does not in itself indicate that the court has determined to waive an independent state procedural ground for affirming the conviction."); Lee v. Corsini, 777 F.3d 46, 57 (1st Cir. 2015) ("[P]rocedurally defaulted claims cannot be resurrected by a single justice's holistic review of the merits in the context of a miscarriage-of-justice analysis."). Cf. Beard v. Kindler, 558 U.S. 53, 60, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009) (holding that "a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review"). Federal courts "will not infer waiver of a contemporaneous objection rule unless the state appellate court has made it reasonably clear that its reasons for affirming a conviction rest upon its view of federal law," rather than the pertinent state procedural requirement. Tart, 949 F.2d at 496 (quotation marks and citation omitted). The SJC found no substantial risk of a miscarriage of justice in accordance with the state procedural regarding all of Petitioners objections. Accordingly, I will not infer a waiver of the contemporaneous objection rule.
Because Petitioner's counsel made no contemporaneous objections to the alleged errors in the jury instructions or the prosecutor's closing, the SJC reviewed for a substantial likelihood of a miscarriage of justice. See Muller, 477 Mass. at 428, 429, 431, 78 N.E.3d 51. Further, Petitioner conceded in his appellate brief that no contemporaneous objections were made at trial and that substantial likelihood of a miscarriage of justice was therefore the appropriate standard of review. (Docket No. 16, at 34, 39, 43). Consequently, I find that Petitioner procedurally defaulted all of the grounds on which he seeks relief from this Court.
A procedural default may be excused, however, if the "petitioner can demonstrate cause for the default and actual prejudice." Janosky, 594 F.3d at 44 (citing Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995)). "The general requirement for cause for a procedural default is that the prisoner must show `that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Gunter v. Maloney, 291 F.3d 74, 81 (1st Cir. 2002) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Petitioner has not offered any cause for the default.
A court may also excuse the default if the petitioner can demonstrate there was a "fundamental miscarriage of justice." Id. "To show that a fundamental miscarriage of justice would occur in the habeas context, `petitioner must establish actual innocence.'" Id. at 83 (quoting Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999)). To do this, "petitioner
Petitioner argues that "the state's judicial system is not fulfilling it's constitutional responsibility in the adjudication of mentally disabled persons." (Docket No. 1, at 11). Petitioner's argument seems to be based on the argument he presented to the SJC for relief pursuant to Mass. Gen. Laws ch. 278, § 33E. Insofar as Petitioner argues that there is an error with respect to Section 33E relief, this Court cannot review that claim. See Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").
Further, if Petitioner contends that his conviction violated the United States Constitution, he did not present that claim to the SJC. AEDPA instructs that habeas relief "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Thus, federal courts "will not entertain an application for habeas relief unless the petitioner first has fully exhausted his state remedies in respect to each and every claim contained within the application." Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (citation omitted). The exhaustion requirement provides "the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). "Where, as here, a state's highest court offers discretionary review, a petitioner must present that court with the opportunity to review the federal claim to have exhausted available state remedies." Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007).
To satisfy the exhaustion requirement, "a habeas petitioner bears a heavy burden to show that he fairly and recognizably presented to the state courts the factual and legal basis of [his] federal claim." Adelson, 131 F.3d at 262. Insofar as Petitioner makes a Constitutional challenge to Section 33E review, Petitioner has not satisfied his burden to show that the issue was fairly presented to the state courts. Accordingly, if the claim is a federal claim, it is unexhausted.
For the reasons stated above, the petition for habeas corpus (Docket No. 1) is
The statute governing appeals of final orders in habeas corpus proceedings provides that an appeal is not permitted "[u]nless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of
Petitioner either procedurally defaulted Grounds I, II, and III. Further, he has not made any showing of cause or actual innocence. Accordingly, I find that no reasonable juror could debate whether Petitioner has defaulted on his claims. See Delacruz v. Vidal, 2017 WL 1330191, at *1 (D. Mass. Apr. 6, 2017) (denying a certificate of appealability for claims that were procedurally defaulted); Brown v. O'Brien 755 F.Supp.2d 335, 337 (D. Mass. 2010) (same). Finally, insofar as Ground IV is a Constitutional challenge to Section 33E review, Petitioner has not exhausted this claim. I also find that no reasonable juror could find that the issue has been fairly presented to the state courts. See Fletcher v. Marshall, 525 F.Supp.2d 233, 237 (D. Mass. 2007) (denying a certificate of appealability for failure to exhaust claims).
Consequently, I am denying a COA with regard to all of Petitioners claims.
