United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION RE: RESPONDENT'S MOTION TO DISMISS (DOCKET ENTRY # 18)
MARIANNE B. BOWLER, Magistrate Judge.
Respondent Gary Roden ("respondent"), Superintendent of the Massachusetts Correctional Institute in Norfolk, Massachusetts ("MCI-Norfolk"), moves to dismiss a petition for writ of habeas corpus ("the petition") filed pro se under 28 U.S.C. § 2254 ("section 2254") by petitioner Elvin Rodriguez ("petitioner"), an inmate at MCI-Norfolk. Petitioner attacks his state court convictions based upon errors in the admission of "prior bad acts" evidence and "first complaint testimony" in the Massachusetts Superior Court Deportment (Hampden County) ("the trial court"). (Docket Entry # 1). Respondent seeks to dismiss the petition because petitioner did not exhaust his state court remedies and only raises errors of state law. (Docket Entry # 19).
There is little indication that petitioner seeks an evidentiary hearing. Even if he did, a hearing is not required or necessary. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") bars an evidentiary hearing in federal court unless a petitioner shows that his "claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2)(A); see also Teti v. Bender , 507 F.3d 50, 61-62 (1st Cir. 2007) (discussing section 2254(e)(2)).
Here, even if petitioner avoids the section 2254(e)(2) bar, an evidentiary hearing would not enable him to establish facts that would entitle him to federal habeas relief. See Teti v. Bender , 507 F.3d at 62; see also Companonio v. O'Brien , 672 F.3d 101, 112 (1st Cir. 2012). The facts taken from state court findings filings, trial transcripts and related documents contain all the relevant and necessary undisputed facts to establish a factual basis and address the merits of respondent's arguments. See, e.g., Neverson v. Bissonnette , 242 F.Supp.2d 78, 88 (D.Mass. 2003) (quoting section 2254(e)(2)), aff'd on other grounds, 366 F.3d 32 (1st Cir. 2004).
The record before this court is therefore complete. In any event, it is inappropriate to conduct an evidentiary hearing and consider new facts not before the state courts when conducting a section 2254(d)(1) analysis. See Garuti v. Roden , 733 F.3d 18, 22 (1st Cir. 2013) ("review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits'") (quoting Cullen v. Pinholster , 131 S.Ct. 1388, 1398 (2011)).
On January 21, 2009, a grand jury sitting in the trial court returned an Indictment charging petitioner with three counts of statutory rape of a child in violation of Massachusetts General laws chapter 265 ("chapter 265"), section 23, and six counts of indecent assault and battery on a child under 14 in violation of chapter 265, section 13B. (Docket Entry # 15, S.A. 3, 52-60). On February 9, 2010, petitioner filed two motions in limine. The first motion sought to exclude evidence of petitioner's prior bad acts and the second motion sought to limit the "number of fresh complaint witnesses." (Docket Entry # 15, S.A. 4-5, 66, 69-70).
Turning to the latter motion, in open court on April 6, 2010, the Commonwealth explained that it would call an older sister ("the first victim") to testify as a first complaint witness for disclosures about petitioner's conduct that her younger sister ("the second victim") made to her. (Docket Entry # 15, S.A. 171-172). The Commonwealth also represented it would call a friend of the first victim to testify as a first complaint witness for disclosures that the first victim made to her friend. (Docket Entry # 15, S.A. 172). Upon hearing that the Commonwealth planned to call only these two first complaint witnesses, petitioner agreed to withdraw the motion. (Docket Entry # 15, S.A. 174-175). The trial judge therefore endorsed the motion as moot and noted that petitioner had no objection to the Commonwealth calling the aforementioned first complaint witnesses. (Docket Entry # 15, S.A. 69).
The procedural history of the second motion in limine is more complex. The Commonwealth anticipated introducing evidence of petitioner's similar conduct that took place in Puerto Rico before the two victims, their stepsister, their mother and petitioner moved to Holyoke, Massachusetts in May 2004 and then to Springfield, Massachusetts in July 2007. (Docket Entry # 15, S.A. 163, 554, 647, 652). Petitioner, who was the victims' mother's boyfriend at the time, lived with the three sisters and their mother during the two year period when the conduct took place. (Docket Entry # 15, S.A. 229, 446, 532-533, 644, 646).
On April 6, 2010, the trial judge conducted a voir dire examination of both victims to ascertain inter alia the nature of the prior bad acts. The first victim described three or four incidents at a beach when petitioner touched her chest over her bathing suit while they were in the water. Petitioner warned her that he would drown her if she reported the incidents. She also described two incidents that took place in a parked automobile during which petitioner touched her vagina over her underwear and incidents at night when petitioner would have her lie naked underneath him while he "rub[bed] his penis on" top of her vagina.
The second victim testified about an incident when petitioner touched her chest on top of her shirt and the outside of her vagina underneath her clothes. The incident took place while the second victim sat on petitioner's lap. Petitioner gave her money not to report the incident. At the beach, the first victim refused to kiss petitioner but she did observe him kiss her younger sister.
Before impanelment, the trial judge denied the motion. He reasoned that the incidents were probative of the development of the relationship, petitioner's "inclination to commit the acts charged, " his "passion for" the victims and the fear felt by the victims as a reason for not reporting the incidents earlier. (Docket Entry # 15, S.A. 229-230). During a short opening statement, petitioner's counsel told the jury about the victims' grandmother pressuring them to "fabricate" their stories. (Docket Entry # 15, S.A. 440).
Before the first victim testified at trial about the incidents in Puerto Rico, the trial judge instructed the jury that it could only consider the acts that took place in Puerto Rico for the limited purpose of showing "knowledge, intent, motive, or method" and not "as proof that [petitioner] committed the crimes charged or that he has a criminal personalty or bad character." (Docket Entry # 15, S.A. 534). The trial judge gave a similar limiting instruction before the jury heard the second victim's testimony about petitioner's conduct in Puerto Rico. (Docket Entry # 15, S.A. 442-443).
The victims' trial testimony regarding the uncharged conduct was similar to their testimony on voir dire. (Docket Entry # 15, S.A. 447-449, 535-541). Their testimony about the charged conduct that took place in Holyoke and Springfield described incidents similar to those in Puerto Rico. Thus, similar to the beach incident when petitioner touched the first victim's chest and the other incidents during which petitioner touched and rubbed her vagina, petitioner touched the first victim's chest over and under her shirt as well as her vagina under her pants while she washed dishes in the kitchen of the ...