United States District Court, D. Massachusetts
JOSEPH J. FENCHER, JR., Petitioner,
GARY RODEN, Respondent.
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JENNIFER C. BOAL, Magistrate Judge.
On July 31, 2013, Joseph J. Fencher, Jr. filed, pro se, a petition for a writ of habeas corpus under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Dkt. No. 1 ("Petition" or "Pet."). Respondent Gary Roden opposes the Petition. Dkt. No. 25 ("Resp't Mem."). For the following reasons, the Court recommends that the District Judge assigned to this case deny the Petition.
I. PROCEDURAL BACKGROUND
On April 9, 2010, a Massachusetts Superior Court jury convicted Fencher of one count of distribution of cocaine, one count of possession with intent to distribute cocaine, and two counts of a drug violation near a school zone or park. Dkt. No. 12 (Supplemental Answer, "S.A.") at 5-7. On May 3, 2010, Fencher was found guilty of four counts of being a habitual criminal offender at a jury-waived trial. S.A. 5, 8. He was sentenced to two concurrent sentences of ten years for the distribution and possession counts, followed by two concurrent sentences of fifteen years on the school zone counts. S.A. 6. On February 24, 2012, the Massachusetts Appeals Court ("Appeals Court") affirmed Fencher's conviction. S.A. 183-85; Commonwealth v. Fencher, 81 Mass.App.Ct. 1116 (2012). On May 3, 2012, the Supreme Judicial Court ("SJC") denied further review. S.A. 218; Commonwealth v. Fencher, 462 Mass. 1102 (2012).
On July 31, 2013, Fencher filed the instant petition. On February 28, 2014, in support of the Petition, Fencher filed a memorandum which asserted several additional grounds for relief. Dkt. No. 23 ("Pet. Mem."). On April 29, 2014, Respondent filed an opposing memorandum, seeking denial of the Petition.
II. FACTUAL BACKGROUND
The Appeals Court summarized the underlying facts of Fencher's offenses as follows:
In November of 2007, the Worcester police department recorded several multi-party phone calls among Christopher Thomas, Thomas' girlfriend Sandy Armstrong, and [Fencher]. Thomas was incarcerated at the time of the calls. Three phone conversations, all held November 13, 2007, were introduced as evidence against [Fencher] at trial. In the first call, Thomas and Armstrong discussed setting up a three-way call with a person named "Joe, " which is the first name of [Fencher]. In the second call, in which [Fencher] participated by his own admission, Thomas informed Armstrong that he left her "a little something." Also, in this call, [Fencher], Armstrong and Thomas discussed that if Armstrong was "to call him if she needs any help." During the third call, Thomas told Armstrong that while Thomas was imprisoned, Armstrong was to "deal with Joe" and made a reference to "re-upping".
Additionally, in the third call, Armstrong asserted that someone by the name of "Joey" was harassing her and told Thomas, "When, you get out, you got to check that-check that nigger." Finally, on this third call, Armstrong told Thomas that she had just "re-upped" and said, "I don't want to talk about it on the phone."
As a result of these recorded phone calls, the Worcester police called Armstrong's phone on November 26, 2007, to set up an undercover drug purchase. The officer who made the calls testified that, while speaking to Armstrong about the price of "a ball, " he heard [Fencher] state in the background, "If he knows YG,  he knows it's 150 for a ball." The officer also testified that in a subsequent call regarding the upcoming purchase, he heard a voice in the background, that he recognized as [Fencher's], state, "Tell him to watch out for the black car. When we get there, have him get out of his car and get in with us." A short time later, a black Mercury drove into a parking lot where the undercover officer was waiting. Armstrong exited the Mercury, entered the officer's truck, sold him cocaine, returned to the Mercury, and was arrested there along with [Fencher]. After removing [Fencher] from the car, an officer at the scene remarked that [Fencher] "must have had [the drugs] in his hand, " to which [Fencher] quipped, "Get it right. I was sitting on it. I wasn't holding on-I didn't have it in my hand." [Fencher], in response to the officer's telling him he nevertheless possessed it said, "So what? I'll get out."
At trial, [Fencher] admitted that he was one of the parties heard on the recorded three-way calls and that he was aware that the term "re-up" meant to replenish a drug supply. [Fencher] also testified that Thomas had asked him to "look out" for Armstrong and that he did not go by the name "Joey."
S.A.183; Fencher, 81 Mass.App.Ct. 1116, at *2.
III. STANDARD OF REVIEW
The Court liberally construes the Petition because Fencher is appearing pro se. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Fencher cannot obtain federal habeas relief under 28 U.S.C. § 2254(d) for any claim that a state court "adjudicated on the merits" unless he can show that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); RaShad v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002).
The language barring federal review if a petitioner's claim was "adjudicated on the merits" is "in part, a reference to the long standing rule that federal courts do not review state court decisions which rest on independent and adequate state grounds.'" Simpson v. Matesanz, 175 F.3d 200, 205-206 (1st Cir. 1999) (quoting Trest v. Cain, 522 U.S. 87 (1997)). "Such independent and adequate grounds exist where the state court declined to hear the federal claims because the prisoner failed to meet a state procedural requirement.' In such a case, considerations of comity and federalism bar the federal court's review.'" Id. at 206.
The "contrary to" prong is satisfied when the state court "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, " Williams v. Taylor, 529 U.S. 362, 405 (2000), or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result." Id. at 406. The "unreasonable application" prong is satisfied if the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
However, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 102 (2011).