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Silva v. Roden

United States District Court, D. Massachusetts

September 29, 2014

RANDY K. SILVA, Petitioner,

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For Randy K. Silva, Petitioner: John H. Cunha, Jr., LEAD ATTORNEY, Cunha & Holcomb, PC, Boston, MA.

For Superintendent Gary Roden, Respondent: Randall E. Ravitz, LEAD ATTORNEY, Office of the Attorney General, Trial Division, Boston, MA.

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Judith Gail Dein, United States Magistrate Judge.


On February 13, 2002, following a six-day jury trial in Bristol County Superior Court, the Petitioner, Randy K. Silva (" Silva" or " Petitioner" ), was convicted of the deliberately premeditated murder of James Schiano, armed assault of David DeAndrade with intent to kill, and assault and battery of DeAndrade by means of a dangerous weapon. See Commonwealth v. Silva, 455 Mass. 503, 505, 918 N.E.2d 65, 72 (2009). His motion for a new trial was denied, and his convictions were affirmed by the Massachusetts Supreme Judicial Court (" SJC" ) in a decision dated December 21, 2009. Id. at 505, 918 N.E.2d at 73. A subsequent motion for a new trial was denied as well. This matter is before the court on Silva's timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Respondent opposes the petition on various grounds. The Petitioner, who is represented by court-appointed counsel, has withdrawn Ground 4, as unexhausted. He otherwise continues to pursue his remaining ten grounds for relief.

After careful consideration of the record, and for the reasons detailed herein, Silva's habeas petition is DENIED.


The Underlying Crime

Silva was indicted on April 27, 2001 by a Bristol County grand jury on charges of

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murder of James Schiano, armed assault with intent to murder David DeAndrade, and assault and battery of DeAndrade with a dangerous weapon. (RA Ex. A at 4, 11). He was convicted of all charges by a jury following a six-day trial. (RA Ex. A at 4, 6). He was sentenced to life imprisonment for the murder conviction, with concurrent eight to ten year sentences for the other convictions. (RA Ex. A at 6). His conviction, and the denial of his first motion for a new trial, were affirmed by the SJC on December 21, 2009. See Silva, 455 Mass. at 505, 918 N.E.2d at 73. The SJC declined to exercise its discretionary authority under Mass. Gen. Laws ch. 278, § 33E. Id.

As described by the SJC, the facts which the jury could have found are as follows:

In or around March, 2001, Silva's friend, Jeffrey Padon, and Padon's girlfriend, Julie Soloway, purchased cocaine from DeAndrade, for which they owed him fifteen dollars. Silva, 455 Mass. at 505, 918 N.E.2d at 73. After telephoning them several times for his money, on April 7, 2001, DeAndrade went to their apartment to demand payment. Id. DeAndrade left a message with Soloway's roommate, Shrayna Ambers, stating that if he did not get his money " something's going to happen." Id. Upon receipt of this message, Padon telephoned DeAndrade to inform him that he had the money. Id. However, at this point, DeAndrade was no longer interested in simply obtaining his money, but wanted a fight, and told Padon that he would stop by " with my boys." Id.

Padon was concerned that he would be outnumbered, and called Silva for assistance in the event that trouble ensued. Id. at 506, 918 N.E.2d at 73. Shortly after this request for help, Silva arrived at Padon's apartment accompanied by two other men. Id. After Padon told Silva what DeAndrade said, Silva reassured him that nothing would happen, and then left with the two men. Id. He returned to the apartment alone two to three hours later. Id. Then, around ten minutes after Silva's return, DeAndrade arrived at Padon's apartment. Id. He had met Schiano and three women, all of whom he was driving to a party. Id.

Padon, Soloway, Ambers, and Silva went outside to meet DeAndrade. Id. Soloway offered DeAndrade the fifteen dollars that he was owed, but he refused to accept it, and pushed her away. Id. DeAndrade repeatedly lifted his shirt and challenged Padon to a fight. Id. Silva approached DeAndrade and said " Don't do it, partner. It's not worth it." Id. However, the situation continued to escalate, and the parties started to shout at each other. Id. Then, Silva said, " Oh, tough guy, huh? I got something for you," and walked away. Id. Fearful that Silva might have hidden a gun somewhere, DeAndrade followed him. Id. at 506, 918 N.E.2d at 73-74. Silva then started running, and DeAndrade kept pace. Id. Upon passing DeAndrade's car, Schiano and one of the three women exited the car and followed them. Id. at 506, 918 N.E.2d at 74.

Right before DeAndrade caught up to Silva, Silva turned around and pointed a gun at DeAndrade. Id. Somone shouted " I'll show you," and Silva shot DeAndrade five times. Id. Schiano went to attend to DeAndrade, who had fallen to the ground. Id. As Schiano was standing up, Silva ran

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toward him and shot him six times, killing him. Id. DeAndrade survived his wounds.

Upon hearing the gunshots, Padon, Soloway, and Ambers ran back to their apartment, where they were promptly joined by Silva. Id. at 507, 918 N.E.2d at 74. He had a gun with a red light on it which was similar to a laser. Id. At some point, Silva left, but during the course of the evening Silva and Padon spoke several times. Id. Silva asked Padon to gather the shell casings because they might be traced to his gun. Id. He also told Padon that the witnesses " had to come up with the same story to cover up what happened." Id. Silva first suggested that they say that DeAndrade never appeared, and he later told the witnesses to say that DeAndrade had been " beating on him" so he had shot DeAndrade in self defense. Id.

Silva was arrested the following morning. Id. He told the police that he did not mean to shoot anyone, but that the victims had knives. Id. However, neither of the victims had weapons on them. Id. Upon the execution of a search warrant at the defendant's house, police found the following items:

a black Glock .40 caliber semiautomatic pistol equipped with an " aftermarket laser sighting device" for nighttime shooting (activated by a button on the side of the pistol), a fifteen-round magazine for the pistol, ammunition, the defendant's license to carry firearms, several police examination manuals, a certificate of completion from the student trooper program run by the State police, and a certificate of completion from a corrections program, as well as other items.


At trial a State trooper linked the fourteen shell casings recovered from the scene as coming from Silva's Glock pistol. Id. He also testified that the pistol had been modified so as to allow the installation of the laser sighting device inside the pistol, and that the gun would have to be aimed in between shots in order for a round to be discharged with accuracy. Id.

Silva testified at trial. As the SJC described his testimony:

He said that DeAndrade was out of control and repeatedly challenged Padon to a fight. DeAndrade told the defendant to mind his own business, and started moving toward him. The defendant heard a car door open, and he saw two figures moving toward him. He became concerned for his own safety, having previously been stabbed in 1998, after which he began carrying a loaded gun. He tried to flee the scene, but someone chased him. As footsteps closed in on him, he found himself against a fence near the end of the street. Thoughts of being trapped and imminent death ran through his mind. He turned and saw DeAndrade and Schiano bearing down on him. DeAndrade raised his hand as if to grab him. The defendant shot him. He then shot Schiano, who was " right on top" of him. The defendant said he had been so frightened that they had weapons and knives that he fired the pistol rapidly. He could not recall whether he activated the laser sighting device.
The defendant acknowledged that he never saw either man with a weapon, although he thought DeAndrade might have had one based on the way he was lifting his shirt while trying to provoke a fight with Padon. He also acknowledged knowing at the time that the shooting occurred at a " T-bone intersection" of two streets, that is, that he had not run to the end of a dead-end street. He admitted he fired no warning shots, but claimed he was not aiming the gun when he shot DeAndrade and Schiano. The defendant said he routinely carried

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his pistol with him, fully loaded, with one round in the chamber ready to fire.
The defendant had been employed as a correction officer at the Plymouth County sheriff's department for about eight months in 1993, where he had received firearms training. He had been employed part time as a security guard and a construction worker up to the time of the shootings. He had held a license to carry firearms for twelve years. The defendant considered himself " a pretty good shot," having scored ninety-eight per cent on target shooting during his training. He went target shooting two to three times per year, and most recently three to five days before the shootings. He had studied to become a police officer, had taken several civil service examinations, and was " on the list" for the State police.

Id. at 507-08, 918 N.E.2d at 74-75.

Procedural History

Silva appealed his convictions for first degree murder, armed assault with intent to murder, and assault and battery with a dangerous weapon. While his appeal was pending, he pursued a motion for a new trial, raising, inter alia, a claim of ineffective assistance of counsel, which was denied. Id. at 508-509, 918 N.E.2d at 75. The SJC affirmed the convictions and the denial of the motion for new trial in a consolidated appeal. Silva's subsequent motion for rehearing was denied. (RA Ex. A at 11).

A second motion for a new trial was filed on December 16, 2010, raising confrontation clause and ineffective assistance of counsel claims following the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The motion was denied on January 31, 2011. (Id.). Leave to appeal was requested, but denied by a Single Justice of the SJC on April 29, 2011 on the grounds that no substantial claims had been presented. (RA Ex. C). The instant habeas petition was timely filed on May 25, 2011. Silva's pro se petition raised 11 grounds for relief. The Respondent moved to dismiss, alleging that grounds 4, 9 and 10 were not exhausted. Thereafter, a number of motions were filed which need not be described herein. This court appointed counsel for Silva who eventually withdrew ground number 4. This court ruled that grounds 9 and 10 had been exhausted, and denied the motion to dismiss. In connection with the briefing presently before the court, the parties have all used the original numbering of the grounds, simply not addressing number 4. Thus, the petition raises the following grounds for relief:

1. Admission of prejudicial, inadmissible evidence, specifically multiple police training manuals of no relevance to the case, in violation of the due process clause;
2. Prosecutorial misconduct during the trial, both by improper questioning of witnesses and by making improper argument, in violation of the due process clause;
3. The seating of jurors who had not been properly vetted for prejudice, in violation of the due process clause;
4. [Withdrawn];
5. Deprivation of the right to counsel under the 6th and 14th Amendments where counsel failed to investigate, prepare, and present an adequate defense;
6. Deprivation of petitioner's rights under the 6th and 14th Amendments where the motion judge post-trial improperly accepted an

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affidavit and testimony from trial counsel;
7. Deprivation of due process rights by the judge's failure to properly instruct on the defenses of heat of passion and sudden combat;
8. Deprivation of the right to counsel under the 6th and 14th Amendments by counsel's failure to exclude hearsay evidence;
9. Deprivation of the right to confront witnesses under the 6th and 14th Amendments due to the admission of said hearsay evidence;
10. Deprivation of due process rights where the trial court failed to require a proper foundation prior to admitting said hearsay evidence; and
11. Deprivation of due process rights where the trial court allowed " expert" witness testimony that was actually hearsay evidence.

(Memorandum in Support of Petition for Habeas Corpus (Docket No. 51) (" Pet. Mem." ) at 1-2).

Additional facts will be provided below where appropriate.


A. Standard of Review

The standard of review to be applied to Silva's habeas corpus petition is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). The standard allows a federal court to grant a writ of habeas corpus only if the underlying state court adjudication " (1) resulted in a decision that 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) resulted in a decision that 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). In undertaking this analysis, " a habeas court must determine what arguments or theories supported the state court's decision, and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Wetzel v. Lambert, 132 S.Ct. 1195, 1198, 182 L.Ed.2d 35 (2012) (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (internal punctuation omitted)). Moreover, " [i]n this context, 'clearly established law' signifies 'the holdings, as opposed to the dicta'" of the Supreme Court decisions. Howes v. Fields, 132 S.Ct. 1181, 1187, 182 L.Ed.2d 17 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)).

A writ of habeas corpus is only appropriate " under the 'contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). By contrast, relief is proper " under the 'unreasonable application' clause if the state court correctly identifies the governing legal principle from [the Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. An unreasonable application is more than just error, entailing " some increment of incorrectness beyond error[.]" McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (internal quotation and citation omitted); accord Bell, 535 U.S. at 694, 122 S.Ct. at 1850. The " increment of

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incorrectness beyond error" " must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011) (quoting McCambridge, 303 F.3d at 36). Moreover, under this analysis, " a state court is afforded deference and latitude." Hensley v. Roden, 755 F.3d 724, 731 (1st Cir. 2014) (citation omitted).

With respect to factual findings, " the AEDPA sets out a separate and exacting standard applicable to review of a state court's factual findings." Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007) (citing, inter alia, 28 U.S.C. § 2254(e)(1)). Thus, there is a presumption that factual findings by the state court are correct, and the habeas court must defer to such findings. Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir. 2001). " [A] habeas petitioner can rebut this presumption by adducing 'clear and convincing evidence'" that convinces the habeas court " that the underlying state court's adjudication 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[.]'" Id. (citing 28 U.S.C. § § 2254(e)(1) & (d)(2)); see also Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (petitioner bears the burden of overcoming the presumption of correctness by providing " clear and convincing evidence" of the error). " Though this means that a federal court will be taking a closer look at a state court's findings of fact, the fundamental principle of deference to those findings still applies." Hensley, 755 F.3d at 731.

Finally, a writ of habeas corpus does not lie for errors of state law. " Federal habeas is not an ordinary error-correcting writ." Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). Rather, it " exists to rescue those in custody from the failure to apply federal rights, correctly or at all." Id. Thus, habeas relief is only available if a prisoner " is in custody in violation of the Constitution or laws or treaties of the United States" ; it " does not lie for errors of state law." Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011) (internal quotations and citations omitted).

Applying these principles to the instant case compels the conclusion that the petition for a writ of ...

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