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Almeida v. Dickhaut

United States District Court, D. Massachusetts

March 17, 2015

JASON ALMEIDA, Petitioner,
v.
THOMAS DICKHAUT as Superintendent of the North Central Correctional Institution at Gardner, Respondent.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Petitioner Jason Almeida ("Almeida") has filed a petition for a writ of habeas corpus ("Petition") pursuant to 28 U.S.C § 2254 claiming that: (1) trial testimony was prejudicially influenced by a spectator; (2) he was denied his right to cross-examine a witness; (3) ineffective assistance of counsel; (4) the prosecutor improperly vouched for witnesses' credibility; and (5) the testimony of two witnesses was coerced. D. 22; D. 22-1. Respondent, the Superintendant at MCI Gardner, opposes the Petition. D. 76. For the reasons set forth below, the Court DENIES Almeida's Petition.

II. Background

A. Factual Summary

This factual background is drawn from the Supreme Judicial Court's decision affirming Almeida's conviction. Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009). Almeida was convicted by a Bristol Superior Court jury of first-degree murder for the shooting death of Joseph Canto in a parking lot behind a New Bedford lounge in the early morning hours of October 14, 2000. Commonwealth v. Almeida, 452 Mass. 601, 602-03 (2008). There was no physical evidence connecting Almeida to the crime, but three witnesses testified to his involvement. Id. at 603. The first witness was David Grace ("Grace") who testified that he saw Almeida and his codefendant, Russell Andrews ("Andrews"), at the lounge the evening of October 13, 2000 and approached them in the parking lot after they left the lounge. Id. at 604. As he neared the group that included Almeida and Andrews, he heard gunshots, saw the victim run past him, saw Almeida with a gun in his hand, and saw the victim fall between a truck and a car. Id.

The second witness, John Todman ("Todman"), also saw Almeida at the lounge. Id . Just before the lounge closed, Todman, Andrews and others left through the back door. Id. at 604-05. In the parking lot, Todman saw the victim walk from the corner of the street toward Almeida. Id. at 605. Almeida backed away as the victim continued to approach. Id . Todman saw Almeida "reach for his waist and pull out a gun" and "a gun in the air' with fire' coming... up in the air' from the defendant's hand." Id . (quoting Todman's trial testimony). Todman then took cover behind a car. Id.

The third key witness, Olivia Pires Lara ("Lara"), was also at the lounge on the evening of October 13, 2000. Id . She observed an argument among Almeida, Andrews and the victim on the dance floor and a bouncer telling them to leave. Id . The victim left through the back door, followed by a group that presumably included Almeida and the argument continued in the parking lot. Id . A short time later, Lara left through the front door. Id . She heard a gunshot and ran down the street to the back of the lounge where she saw Almeida and the victim arguing and Andrews standing beside the victim. Id . She also saw Almeida retrieve something from the car. Id . When Andrews pointed a gun at the victim's head, Almeida said, "Give me that, " grabbed the gun and shot the victim in the head. Id. at 605-06.

B. Procedural History

Almeida was convicted of murder in the first degree and of unlawful possession of a firearm. Id. at 602 & n.1. Almeida timely appealed to the Supreme Judicial Court, asserting largely the same claims now before the Court. Id. at 602-03. The Supreme Judicial Court affirmed Almeida's convictions and an order denying his motion for new trial. Id. at 603.

On August 27, 2009, Almeida filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"), which he later withdrew voluntarily. D. 1, 17. He renewed his petition on February 3, 2010. D. 22. Another session of this Court denied as moot Almeida's motion to toll time. See docket entry Mar. 18, 2010. On October 10, 2013, Almeida filed a motion to amend the Petition, D. 28, followed on January 31, 2014 by a renewed petition, D. 31. The same session of this Court allowed Almeida's motion to amend as unopposed and stated that the operative petition was the amended petition filed on January 31, 2014. D. 32, 41. The respondent's motion for reconsideration of the order granting Almeida's motion to amend the Petition was allowed. D. 42, 44. The case was then reassigned to this Court. D. 47. Concurrently, Almeida appealed the order allowing the respondent's motion for reconsideration, which the First Circuit dismissed for lack of jurisdiction. D. 53, 67.

Because Almeida withdrew his initial petition and was ultimately precluded from proceeding with his petition of January 31, 2014, this Court ruled on February 11, 2015, D. 82, that the operative petition before the Court is the Petition he filed on February 3, 2010, D. 22. The Court heard the parties on the Petition on March 6, 2015 and took the matter under advisement. D. 88.

III. Discussion

A. Standard of ...


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