United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, District Judge.
In this petition for a writ of habeas corpus, Darryl Scott, a state prisoner convicted of first degree murder and related offenses claims his trial was conducted in violation of federal constitutional guarantees. Finding that the state court convictions did not involve a decision contrary to, or an unreasonable application of, clearly established federal law, and did not result from an unreasonable determination of the facts, I will deny the petition.
Factual determinations made by state courts are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This presumption applies not only to any findings made by the trial court, but also to those recited by a state appellate court. Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002). I set forth the testimony and evidence at trial in the light most favorable to the Commonwealth.
1. The Killing
The petitioner first encountered his alleged victim, Nabil Essaid, on December 1, 2002. On that occasion, Mr. Essaid and two of his friends, Ahmed Obbada and Mohemmed Ledoui, were engaged in a confrontation (allegedly drug-related) with Andrew and Andre Kornegay. Seeing the confrontation escalating, the petitioner intervened.
Mr. Obbada was the Commonwealth's key witness to the events surrounding the shooting which occurred two weeks later on December 14. On that day, as the petitioner was exiting the movie theater on Tremont street in downtown Boston with his then girlfriend Victoria Fernandes, he again encountered Mr. Essaid, Mr. Obbada, and Mr. Lebdoui. At that point, the defendant told Ms. Fernandes to keep walking, which she did, and told the three men to "[g]et the fuck out of here." The three men then began walking up Tremont Street. The petitioner followed, giving "the impression of someone who is looking for a fight." When he was eight to ten feet from the three other men, the petitioner pulled out a nine millimeter Glock pistol and fired, first at Mr. Obbada, who hid behind a car and was hit in the shoe, next at Mr. Lebdoui, who fled, and, lastly, at Mr. Essaid, who was hit by two bullets and fell to the ground.
The petitioner then ran up Tremont Street towards the Park Street station, pausing only to retrieve a Red Sox baseball cap which flew off his head.
Ms. Fernandes also testified at trial. She stated that as she and the petitioner left the theater, they saw three men of Middle Eastern descent leaning against a wall. The men said, "What up?" as though they knew the petitioner and were looking to start "trouble" and then followed close behind the couple as they walked towards the Park Street subway station. At some point, the petitioner told Ms. Fernandes to keep walking, which she did. She next heard three gunshots and saw the defendant run past her toward the subway station. Ms. Fernandes boarded the train at Park Street. A few stops later, the defendant joined her in the subway car, and they then returned to his apartment.
Mr. Scott testified in his own defense. He said that as he and Ms. Fernandes left the theater he saw Mr. Essaid, Mr. Obbada, and another man whom he did not recognize standing on a corner. Mr. Essaid confronted him in a threatening manner regarding the earlier encounter with the Kornegays. As the men followed him up Tremont Street, Mr. Scott became concerned and told Mr. Fernandes to keep walking. When he turned, the other men surrounded him at a distance of about five feet. As the other men approached, and fearing that they were reaching for weapons themselves, Mr. Scott pulled a pistol from his waistband. As the men closed on him, Mr. Scott fired a warning shot and then squeezed the trigger as he turned and ran. He did not know at the time how many shots he fired and only found out the next day, through news reports, that someone had been killed. He claimed that he fired out of concern that the three men were attacking him or would harm Ms. Fernandes. He then fled to the subway where he met Ms. Fernandes before returning home.
2. The Petitioner's Apprehension With The Murder Weapon
There were no leads in the shooting until nearly two months later on February 6, 2003, when the defendant and two others (one was Andre Kornegay) were observed by undercover Boston police officers standing in front of a restaurant, looking up and down the street. Mr. Kornegay and the other man walked a slight distance away from the restaurant and apparently engaged in a drug transaction. The surveillance officers were directed to arrest Mr. Kornegay and to obtain identification from the defendant. When officers approached the defendant, he ran (narrowly avoiding being hit by a passing automobile) and officers gave chase.
Several groups of officers from different divisions of the Boston police department were ultimately involved in the chase. Officer Thomas Rose testified that he became involved in the chase and attempted to tackle the defendant, but the defendant evaded him and Officer Rose fell. While Officer Rose was on the ground, the defendant pulled out his gun and pointed it at Rose, and then turned and pointed it at Officer Matthew Clark, who had also joined in the chase. Officer Clark pulled out his own firearm and ordered the defendant to drop his weapon; the defendant instead turned and ran.
At some point another officer, Steven Sweeney, saw the defendant trying to climb over a stockade fence. When the defendant saw the officer, he turned, fired a shot from his pistol (hitting nothing) and then hid himself under a tarp at which point he was temporarily lost from the officer's sight.
In the ensuing search, Officer Richard Kelley noticed a baseball cap on the ground near the tarp and made a comment to the effect that Mr. Scott has "gotta be somewhere, his hat is right there." The petitioner, hearing the comment, emerged from beneath the tarp, pressing a gun to his head and yelling, "shoot me, shoot me, shoot me, kill me, kill me, kill me."
As officers surrounded the defendant with weapons drawn, the defendant said that he could not go to jail for a long time and that he would kill himself instead. At one point, the defendant was shouting, "kill me, shoot me, I can't go to jail." Lieutenant Detective Stephen Meade, commander of the Boston police drug control unit and one of the officers who had been conducting the drug surveillance, testified that the defendant, who was very agitated and upset, said "I'm not going to prison, I don't want to go to jail, I'm going to kill myself."
Special operations officers were called to the scene. The defendant continued to point the gun at his head, crying and talking on a cellular telephone, saying that he could not serve a long time in jail. To defuse the situation, police told him his sentence would not be longer than one year, because it was only a gun possession charge.
Officer Martin O'Malley said that it was only a gun charge and the defendant had a good chance of "beating it." Officer Kelley said "You're not going to do any time in jail" and "How many of your friends do you know that have gone to jail for illegal possession of a handgun? None." The defendant replied, "none, " but then added, "it's been used before."
After a stand-off between Mr. Scott and officers, Mr. Scott's father (with whom the petitioner had been talking via cell phone) arrived on the scene at which point Mr. Scott dropped his gun and was taken into custody.
A receipt for the purchase of the Glock from a pawn shop in Arizona was retrieved from the defendant during the booking process; the spent cartridge from the round that the defendant had fired near the fence was also recovered. Ballistics investigation showed that spent cartridge casings recovered from the area where Mr. Essaid was shot matched the defendant's Glock and were fired from the same weapon.
B. Mr. Scott's Trial
On April 13, 2003, Mr. Scott was indicted by a grand jury on thirteen counts: four counts of assault with a dangerous weapon; one court of murder; three counts of armed assault with intent to murder; two counts of unlawful possession of a firearm; two counts of unlawful possession of ammunition; and one count of resisting arrest.
Before a jury was empaneled, the prosecution voluntarily dismissed one of the counts of assault with a dangerous weapon. At the close of the Commonwealth's evidence at trial, upon motion by the defense, the Superior Court judge dismissed one count of assault with intent to murder and the count of resisting arrest.
Following the presentation of evidence by both sides and a period of deliberation, the jury found Mr. Scott guilty of first degree murder, two counts of unlawful possession of a firearm, two counts of unlawful possession of ammunition, and one count of assault with a dangerous weapon. With respect to the two remaining counts of armed assault with intent to murder, the jury found Mr. Scott guilty of the lesser included offense of armed assault with intent to kill. With respect to the two remaining counts of assault with a dangerous weapon, the jury found Mr. Scott not guilty.
On April 27, 2006, the Superior Court judge sentenced Mr. Scott to life imprisonment on his conviction for murder, along with both concurrent and consecutive sentences for his convictions on the remaining charges.
C. Post-Trial Proceedings
Mr. Scott filed a timely notice of appeal of his convictions on May 4, 2006. He also filed a motion for a new trial in the Superior Court. The Superior Court denied the request for a new trial. Mr. Scott appealed that decision as well, and the appeal regarding the new trial was consolidated with Mr. Scott's direct appeal to the Massachusetts Supreme Judicial Court.
On October 22, 2012, the Supreme Judicial Court upheld Mr. Scott's conviction and affirmed the denial of his motion for a new trial. Com. v. Scott, 977 N.E.2d 490 (Mass. 2012). Mr. Scott filed a petition for rehearing of his claims with the Supreme Judicial Court on November 5, 2012, which was denied on November 28, 2012.
Having exhausted his state direct appeal remedies, Mr. Scott filed this petition on February 15, 2013. The Commonwealth filed a motion to dismiss the petition on October 25, 2013. On November 14, 2013, Mr. Scott moved to amend his petition by ...