United States District Court, D. Massachusetts
Alexis Ayala, Petitioner, Pro se, Gardner, MA.
For James Saba, Superintendent, Respondent: Jennifer L. Sullivan, LEAD ATTORNEY, Office of the Attorney General (MA), Boston, MA; Argiro K. Shapiro, Office of the Attorney General (MA), Worcester, MA.
Nathaniel M. Gorton, United States District Judge.
MEMORANDUM & ORDER
This habeas petition arises out of petitioner's conviction for unlawful possession of ammunition without a firearms identification card on June 18, 2008, in Massachusetts Superior Court.
I. State court proceedings
On November 27, 2007, Alexis Ayala (" Ayala" ) was indicted for unlawful possession of ammunition without a firearms identification card (Count 7). The grand jury also indicted Ayala for unlawful possession of a controlled substance with intent to distribute (Class A: heroin) (Count 1), unlawful possession of a controlled substance with intent to distribute (Class B: cocaine) (Count 2), unlawful possession of a controlled substance with intent to distribute (Class E: percocet) (Count 3), violation of the controlled substance law within a school zone (Count 4), unlawful possession
of a loaded firearm (Count 5), unlawful possession of a firearm (Count 6), use of a firearm during the commission of a felony (Count 8), and receiving stolen property (Count 9). Counts 1 and 2 alleged that they were second offenses and Counts 6 and 7 charged sentencing enhancements under Mass. Gen. Laws ch. 269, § § 10(d) and 10G(b).
Ayala and his co-defendant, Wilfredo Figueroa, were tried before a jury from June 11 to June 18, 2008. At trial the Commonwealth introduced two ballistics certificates stating that the firearm that fell from Ayala's waistband at the time of his arrest contained three live .38 caliber cartridges. The ballistician who tested the ammunition did not testify.
On June 13, 2008, after the Commonwealth rested its case, the trial judge allowed Petitioner's motion for a required finding of not guilty as to Count 2 and as to so much of Count 1 that charged intent to distribute. On June 18, 2008, Ayala was convicted of Counts 1, 3, 5, 6, and 7. On the same date, Ayala pled guilty to the enhancement portions of Counts 6 and 7.
On June 25, 2008, the trial judge sentenced Ayala to concurrent terms of not more than nine years and not less than seven years at MCI-Cedar Junction on Count 7, and not more than seven years and not less than five years on Count 6. The trial judge also sentenced Petitioner to concurrent six-month terms on Counts 1 and 3 in the Hampden County House of Correction, and a two-year term in the Hampden County House of Correction on Count 5, to run from and after the sentence on Count 6 but concurrent with the sentence on Count 7.
Ayala appealed his fire arms convictions on June 19, 2008. Specifically, Ayala asserted that the admission of the testimonial statements contained in the test-fire report and the ballistics certification violated his right of confrontation under the Sixth and Fourteenth Amendments. On June 23, 2010, the Appeals Court reversed his convictions on Counts 5 and 6 on the ground that the introduction of the ballistics certificate was not harmless ...