United States District Court, D. Massachusetts
MEMORANDUM & ORDER
INDIRA TALWANI, District Judge.
Petitioner, Carlos Mercado Lopez, filed this petition for a writ of habeas corpus against Respondent, the Superintendent of the Northeastern Correctional Center, under 28 U.S.C. § 2254. Petitioner contends that he is entitled to a new trial because improper statements made by the prosecutor at trial deprived him of due process and because his trial counsel was ineffective for failing to object to those improper statements. For the following reasons, the petition is DENIED.
Petitioner was indicted on November 21, 2006 by a Suffolk County grand jury on three counts of rape of a child and two counts of indecent assault and battery on a child under fourteen. At trial, the Commonwealth presented evidence of Petitioner's sexual abuse of his stepgranddaughter, which included medical records, as well as the testimony of the victim, the victim's mother, and the victim's pediatrician. The victim testified that Petitioner sometimes asked if what he was doing hurt her, and when she replied that it did, he stopped. Trial Tr. vol. 2, 59, July 15, 2008 [#11]. During closing arguments, the prosecutor recounted this testimony, stating:
Now, that could have been a number of things, ladies and gentlemen. You can make inferences from that. Perhaps that was this man's one act of mercy for this child, that when she told him it hurt, that he stopped. Perhaps for this man it was his fear that pain might alarm people. She might make noise or maybe the more it hurt, the more likely that she would tell somebody. Or maybe the answer, "it hurts" was exactly what this man wanted, and maybe at that point, he stopped because he was satisfied having heard what he wanted to hear. We don't know.
Trial Tr. vol. 4, 62, July 17, 2008 [#11].
Before deliberation, the trial judge gave the following instructions to the jury:
"And remember what they have said in their closing arguments to you is not evidence. It is their personal view of the evidence and each of you must make your own independent judgment about what the evidence proves or does not prove." Id. at 81. Additionally, the judge instructed the jury that they may not allow their feelings about the case to interfere with the verdict, stating that "[i]t would be equally improper for you to allow any feelings that you might have about the nature of the crime to interfere with your decision." Id. at 79.
Petitioner was found guilty on all five counts and sentenced to a prison term of fifteen to twenty years on count one, two concurrent state prison terms of fifteen to twenty years on counts two and three, and ten years of probation on counts four and five, to be served after the sentence imposed on count one. Tr. of Disposition, 13-14, July 18, 2008 [#11].
Petitioner filed a timely appeal to the Massachusetts Appeals Court ("the Appeals Court"). See Commonwealth v. Mercado-Lopez, No. 10-P-2091, 2012 WL 6389 (Mass.App.Ct. Feb. 29, 2012), arguing that the statement made by the prosecutor in her closing argument entitled him to a new trial and that his counsel was ineffective for not objecting to the statement. The specific statement Petitioner challenged was: "Or maybe the answer, it hurts' was exactly what this man wanted, and maybe at that point, he stopped because he was satisfied having heard what he wanted to hear." Petitioner argued that this statement improperly appealed to jurors' emotions. On February 29, 2012, the Appeals Court issued a written decision affirming Lopez's convictions. In doing so, the Appeals Court concluded that the prosecutor's statement, when taken in context, was not improper, as it was supported by the testimony presented at trial and was one of three reasonable inferences that could be made based on such testimony. The Appeals Court further held that, had the statement constituted misconduct, it would not have amounted to a miscarriage of justice, as the statement "concerned collateral issues and did not go to the heart of the matter." Id. at *2.
Petitioner then appealed to the Massachusetts Supreme Judicial Court ("SJC") in an Application for Leave to Obtain Further Appellate Review ("ALOFAR"). The SJC denied the ALOFAR on May 3, 2012. Commonwealth v. Mercado-Lopez , 462 Mass. 1103 (May 3, 2012).
On November 30, 2012, Petitioner filed the instant petition for a writ of habeas corpus. The petition raises the same claims asserted on appeal in state court, that: (1) "A substantial risk of a miscarriage of justice occurred based upon inappropriate and prejudicial statements in closing arguments exposing the jury to extremely inflammatory and prejudicial statements concerning the appellant, in an appeal to convict driven by emotional indignation", and (2) "Trial counsel was ineffective for failing to object to the ...