United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Petitioner Artem Vaskanyan ("Vaskanyan") has filed a petition for a writ of habeas corpus ("Petition") pursuant to 28 U.S.C § 2254 alleging that (1) the state court violated his right to an impartial jury by seating a biased juror; (2) his trial counsel's failure to challenge the seating of biased jurors resulted in a denial of his right to effective assistance of counsel and due process; (3) he received an illegal sentence in violation of his due process rights; and (4) - (5) his appellate counsel was ineffective. D. 1; D. 1-1. Respondent opposes the Petition and has moved to dismiss, D. 10, arguing that Vaskanyan's claims are not reviewable by this Court because the claims are either (1) procedurally defaulted based on an independent and adequate state procedural rule; or (2) based purely on state law. D. 11. For the reasons set forth below, the Court DENIES Vaskanyan's Petition and ALLOWS the motion to dismiss.
A. Factual and Procedural History
In late 2001, Vaskanyan was tried before a Hampden Superior Court jury on charges stemming from an October 31, 1999 home invasion in Springfield, Massachusetts. D. 1-1 at 26; D. 11 at 2; Vaskanyan II,  83 Mass.App.Ct. 1137, at *1. The Massachusetts Appeals Court summarized the evidence presented during the criminal trial as follows:
On Halloween night in 1999, three men posing as trick-or-treaters forced their way into the home of Ahmet Akin. During the ensuing robbery, Akin was beaten and shot while trying to protect his daughter, Fulia. The intruders wore masks and, as a result, neither victim was able to describe the robbers or identify them. Ultimately, one of the men, Alexi Koba, confessed and identified the defendant and Maksim Lutskov as his accomplices. Koba testified at trial for the Commonwealth and provided significant details as to the planning and execution of the robbery. Another witness, Alexander Arkapov, testified before the grand jury that the defendant had been present in his apartment, which he shared with Lutskov, on the night of the robbery. He also stated that he saw the defendant and the others putting on Halloween costumes. At trial, however, Arkapov failed to recall his grand jury testimony and claimed that he was too drunk that night to remember anything. Reluctantly, Arkapov identified the defendant in court as "[a] friend, " but maintained that he was unsure whether he saw the defendant at his apartment on the evening of October 31, 1999.
Vaskanyan II, 83 Mass.App.Ct. 1137, at *1. On December 19, 2001, Vaskanyan was convicted of (1) home invasion, (2) armed assault with intent to rob, (3)-(4) two counts of assault and battery with a dangerous weapon, and (5) assault and battery. D. 1 at 1.
Following these convictions, Vaskanyan filed a direct appeal to the Appeals Court in December 2001. D. 1-1 at 26; D. 11 at 3. In June 2006, Vaskanyan filed a petition for writ for habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the Commonwealth's delay in producing the criminal trial transcripts violated his due process rights. Id . This Court (Zobel, J.) initially stayed the petition and, upon the Commonwealth's ultimate production of the transcripts, dismissed it without prejudice, noting that Vaskanyan would be free to refile a federal habeas petition once his claim was exhausted at the state level. Vaskanyan v. Marshall, No. 06-10975-RWZ, 2007 WL 906623, at *1 (D. Mass. Mar. 23, 2007).
In September 2007, while his direct appeal was pending, Vaskanyan filed a pro se motion for a new trial. D. 1-1 at 27; D, 11 at 3. The Appeals Court consolidated Vaskanyan's direct appeal from the convictions and his appeal from the denial of his motion for a new trial. Vaskanyan I, 78 Mass.App.Ct. 1103, at *2. The Appeals Court considered Vaskanyan's claims that his sentence was illegal under Massachusetts law, that the trial judge erred in seating biased jurors, that the prosecutor improperly introduced testimony she knew to be false, and that his trial counsel was ineffective for failing to challenge the seating of biased jurors and failing to object to the prosecutor's improper use of prior testimony. D. 1-1 at 1-2; Vaskanyan I, 78 Mass.App.Ct. 1103, at *1-3. On October 15, 2010, the Appeals Court affirmed the convictions and order denying a new trial. Vaskanyan I, 78 Mass.App.Ct. 1103, at *3. The Supreme Judicial Court denied Petitioner's request for further appellate review in February 2011. Commonwealth v. Vaskanyan , 459 Mass. 1103 (2011).
Petitioner, with the assistance of new counsel, filed a second motion for new trial in November 2011. D. 1-1 at 28, D. 11 at 4. That motion was denied and Petitioner appealed in May 2012. Id . In his appeal, Petitioner argued that (1) the trial judge erred in refusing to provide the jury with an instruction regarding identification; (2) that the Commonwealth improperly introduced prior grand jury testimony at trial and improperly suggested that the jury could consider it for substantive purposes; and (3) that his counsel on direct appeal was ineffective for failing to raise or advance both of those issues. D. 1-1 at 3.
In the consolidated direct appeal and first motion for new trial, Vaskanyan did not raise, and the Appeals Court did not consider the identification instruction or improper testimony issues. Vaskanyan I, 78 Mass.App.Ct. 1103. Therefore, in considering Vaskanyan's second motion for new trial, the Appeals Court determined that both claims of error at trial had been waived and that it was not the type of "extraordinary case" that would warrant allowing Petitioner to raise the waived issues to prevent a "miscarriage of justice." Vaskanyan II, 83 Mass.App.Ct. 1137, at *1 (citing Commonwealth v. Harrington , 379 Mass. 446, 449 (1980)). The Appeals Court then considered Vaskanyan's ineffective assistance of counsel claims under the "substantial risk of a miscarriage of justice" standard. Id . Finding that neither claim of ineffective assistance of counsel created a substantial risk of a miscarriage of justice, the Appeals Court affirmed the order denying the second motion for new trial on June 21, 2013. Vaskanyan II, 83 Mass.App.Ct. 1137, at *2, and the Supreme Judicial Court denied an application for further appellate review on July 25, 2013. Commonwealth v. Vaskanyan, 466 Mass. 1102 (2013). Vaskanyan filed the present, timely Petition for writ of habeas corpus on September 30, 2013. D. 1.
B. Vaskanyan's Petition and Memorandum in Opposition to Respondent's Motion to Dismiss
The first two grounds of Vaskanyan's Petition relate to the trial court's seating of, and trial counsel's purported ineffectiveness in failing to object to, allegedly biased jurors. D. 1; D. 1-1. Grounds three through five relate to the legality of his sentence and claims that his appellate counsel was also ineffective. Id . In his memorandum of law in opposition to Respondent's motion to dismiss, D. 16, Vaskanyan advances arguments pertaining to grounds one and two only. He concedes that grounds three through five of his petition appear to be without merit and does not advance arguments related to those grounds. D. 16 at 4, n. 3. Because Vaskanyan advances arguments related only to grounds one and two of the Petition, the Court will consider those grounds and related arguments and will dismiss, without prejudice, grounds three through five.
C. Relevant Proceedings in State Court
The Court summarizes the state proceedings relevant to ground one and ground two of the Petition.
1. Jury Empanelment
Petitioner argues, as he did upon direct appeal, that the trial judge erred by seating a juror who stated he would credit the testimony of a police witness more than that of another person, thereby depriving him of his right to an impartial jury. D. 1-1 at 4. Vaskanyan's jury empanelment took place in Hampden Superior Court on December 14, 2001. The court engaged in the following colloquy with juror 4-13:
JUROR: I'm John Rit Rit (phonetic)
COURT: Okay, sir.
JUROR: My problem is I would tend to believe what a police officer said. I don't know if I can be truly impartial.
COURT: That's what you're here to decide. Let me ask you this. I'm looking at your background. Obviously you're a United States citizen. You truly feel you could not keep an open mind in terms of (inaudible) credibility whether it's a police officer or someone else?
JUROR: I don't know honestly, and I know a couple policemen and I would like to think I could but I ...