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Clemente v. O'Brien

United States District Court, D. Massachusetts

March 31, 2015

STEVEN O'BRIEN, Respondent. DAMIAN CLEMENTE, Petitioner,
LUIS SPENCER Respondent.


GEORGE A. O'TOOLE, Jr., District Judge.

In 1997, the petitioners, father and son, were convicted of first degree murder and related charges in Massachusetts state court and sentenced to life imprisonment. Defendants moved twice for new trials, citing Sixth and Fourteenth Amendment violations, which motions were denied. The Supreme Judicial Court ("SJC") ultimately affirmed both the convictions and the denials of the motions for new trial. In 2010, each petitioner filed a timely petition for habeas relief; the two cases were subsequently consolidated.

I. Background

The facts are set out in detail in the opinion of the SJC. Commonwealth v. Clemente, 893 N.E.2d 19 (Mass. 2008). Pursuant to 28 U.S.C. § 2254(e)(1), the SJC's factual findings are entitled to a presumption of correctness. See Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001). The petitioners bear the burden of rebutting this presumption by clear and convincing evidence. Id.; see also Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2008).

A. The Shooting

The petition arises out of a shooting that took place at the 99 Restaurant in Charlestown, Massachusetts on November 6, 1995. For over a year, Damian Clemente had experienced problems with members of the Luisi and Sarro families in the North End section of Boston. The Luisi family was following, harassing and threatening Damian because he was selling drugs in the North End and not paying money to the Luisis. On November 5, 1995, Damian and Vincent Perez got into a fight with Robert Luisi's nephew, Joseph Ferlito. Over time, Anthony, Damian's father, became convinced that the Luisi family was going to kill his son.

On November 6, 1995, Damian and Perez were at the 99 Restaurant in Charlestown, where they saw Robert Luisi, Roman Luisi, Anthony Sarro, Richard Sarro, and Sonny Pelosi together in a booth. When Damian telephoned, Anthony instructed Damian not to move and went to the restaurant with his nine millimeter handgun. He did this to "get the boys out alive." Clemente, 893 N.E.2d at 28. According to the SJC's summary:

As he approached the restaurant at approximately 1:25 P.M., Anthony looked inside and saw the Luisis and Sarros sitting at a booth and noted that nothing had happened. Anthony entered the restaurant, went to the Luisi-Sarro group, and asked Robert Luisi, "What's going on?" Robert Luisi replied, "It's your fucking kid." Anthony asked, "Why is it always my fucking kid? This kid is nothing to you." Roman Luisi jumped from the booth, and the look in his eyes changed. Anthony stuck out his left hand and backed up somewhat, saying to Roman Luisi, "It [doesn't] have to be this way." Anthony saw Damian and Perez walking toward the Luisi table and saw Roman Luisi put both his hands down toward the fanny pack he was wearing in front. Roman Luisi said something about no one getting out of there alive. Anthony shoved his son and Perez behind him and shot Roman Luisi. Sonny Pelosi yelled and Robert Luisi stood up. Anthony shot Sonny Pelosi. Robert Luisi reached for Anthony, who shot him in the head. Anthony heard the sound of shots, and believed he was being shot, but was not certain of the source. He saw Roman Luisi lying on the ground and shot him twice more, once in the back and once in the head. Anthony then saw Anthony Sarro moving and shot him again. Anthony went "to drop the hammer on [Richard Sarro], " but his gun was now empty.

Id. at 28-29. Off-duty Everett police officers were present in the restaurant that day and chased Damian and Perez outside the restaurant and arrested them. Damian was found with a loaded.45 caliber pistol. A bullet fired from this gun was found in the body of Robert Luisi.

After leaving the restaurant, Anthony threw away his gun, jacket, and sneakers. The next day, he was interviewed by Boston Police Sergeant Detective Daniel Keeler at the Charlestown District Court where Damian was being arraigned. When questioned, Anthony explained that he had acted in self-defense. He was arrested, received and waived his Miranda rights, and was interviewed again that same day. He told police that his family had lived in fear of the Luisis for years and he had recently heard that Robert Luisi was going to hurt his son.

B. The Trial

The defendants were charged with four counts of murder in the first degree, armed assault with intent to murder Sarro, who was the only surviving victim, assault and battery by means of a dangerous weapon, unlawful possession of a dangerous weapon, and unlawful possession of ammunition.

The principal issues at trial were whether the defendants acted in self-defense and whether Anthony acted in defense of another. The defendants presented evidence of specific acts of violence by the victims, as well as evidence regarding the victims' reputations for violence.

A Suffolk County jury found Anthony guilty of all charges. Damian was found guilty of one count of first degree murder with deliberate premeditation, guilty of two counts of second degree murder, and not guilty on one count of first degree murder. Both men were given life sentences. The defendants filed a joint motion for a new trial with a request for an evidentiary hearing on June 5, 2003, which was denied. They filed a second motion for a new trial on May 18, 2006, which was also denied. The SJC affirmed the convictions and the denial of the two motions for new trial on September 5, 2008.

II. Standard of Review

Under the standard established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a habeas petition will not be granted "with respect to any claim that was adjudicated on the merits in state court proceedings" unless the State court decision was (1) "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). Habeas relief is not warranted if the state court's decision was merely erroneous or incorrect; it must be "objectively unreasonable." Woodford v. Visciotti, 537 U.S. 19, 27 (2002). In ground eleven of his petition, Anthony asserts that this standard of review is an unconstitutional restriction on my Article III authority. I do not treat it as such. See Evans v. Thompson, 518 F.3d 1, 11 (1st Cir. 2008) ("while AEDPA does restrict a remedy, it does not interfere with Article III powers").

III. Procedural Default

Federal habeas review is unavailable in those situations where the "state court has reached its decision on the basis of an adequate and independent state-law ground." Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995). A state law ground may be adequate and independent where the "state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Matesanz, 175 F.3d 200, 207 (1st Cir. 1999). A state procedural rule is found to be adequate if it is consistently applied by the state courts, Horton v. Allen, 370 F.3d 75, 80 (1st Cir. 2004), and independent if it does not depend on and is not interwoven with federal law, Coleman, 501 U.S. at 735. Additionally, procedurally defaulted claims are not entitled to federal habeas review unless the petitioner is able to demonstrate cause for the default and actual prejudice or demonstrate that failure to consider the defaulted claim will result in "a fundamental miscarriage of justice." Id. at 750.

The respondent argues that some of the petitioners' claims are procedurally defaulted, specifically that the judge committed error in giving a jury instruction on excessive force in defense of another, [1] that it was error to allow the prosecutor to ask Anthony, over objection, to comment on the credibility of other witnesses, [2] that is was error to conduct the voir dire of jurors regarding the newspaper article without the petitioners present, [3] and finally, in response to a jury inquiry, that the judge committed error by omitting the word "not" in an instruction on joint venture.[4] The SJC found these claims waived for failure to object at trial or failure to raise on appeal, but reviewed them under the Massachusetts substantial likelihood of miscarriage of justice standard. See Mass. Gen. Laws ch. 278 § 33E; Clemente, ...

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