United States District Court, D. Massachusetts
Miguel Guerrero, Petitioner, Pro se, Shirley, MA.
For Kelly Ryan, Respondent: Todd M. Blume, LEAD ATTORNEY, Office of the Attorney General, Boston, MA.
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
Petitioner Miguel Guerrero, a state prisoner convicted of trafficking over twenty-eight grams of cocaine and of a controlled substance violation within one hundred feet of a public park, seeks a writ of habeas corpus under 28 U.S.C. § 2254 after unsuccessfully appealing his convictions in Massachusetts state court. He contends that an array of alleged constitutional errors, individually and collectively, justifies his release from state custody. Finding that six of the grounds asserted are procedurally defaulted and the remaining two are without merit, I will deny the petition for writ of habeas corpus.
The facts that the jury could have found in support of its verdict as well as the procedural history of the case are as follows:
A. Indictment and Pretrial Proceedings
On June 21, 1999, Guerrero was indicted for selling over twenty-eight grams of cocaine to an undercover police officer within one hundred feet of a public park and for possession of a falsely made license to operate a motor vehicle. Guerrero v. MacEachern, 2011 WL 1598717, at *1 (D. Mass. Apr. 27, 2011). Defaulting on March, 13, 2000, Guerrero was a fugitive for almost seven years. On February 26, 2007, he was apprehended and brought to court.
Approximately three weeks later, on March 13, 2007, the Commonwealth informed Guerrero's defense counsel that the white powdery substance purchased from Guerrero had been destroyed by the Narcotics Inspection Unit in August 2005 on the basis of a state trooper's mistaken
belief that Guerrero's case had been concluded.
B. Trial and Sentencing
Guerrero's trial began on October 9, 2007, in Suffolk Superior Court. At the start of trial, defense counsel immediately moved to dismiss the charges on account of the Commonwealth's destruction of the evidence in question: the forty-five bags of alleged cocaine that Guerrero was said to have sold to an undercover police officer. The trial judge denied the motion.
The jury heard testimony that on March 31, 1999, and April 6, 1999, an undercover Massachusetts State Police Trooper, Marion Fletcher, purchased twenty and twenty-five bags of a white powdery substance, respectively, from Guerrero and his accomplice William Figueroa. Fletcher testified that both transactions occurred approximately fifteen feet away from a park. Melissa O'Meara, a forensic chemist for the Massachusetts State Police Crime Lab, testified that she analyzed the contents of the purchased bags and determined that the twenty bags of white powder from March 31, 1999, contained 32 grams of 70% pure cocaine. With respect to the twenty-five bags purchased on April 6, 1999, O'Meara testified that they contained 38.42 grams of 68% pure cocaine.
On October 12, 2007, the jury convicted Guerrero of one count of trafficking in over twenty-eight grams of cocaine, one count of a controlled substance violation within one hundred feet of a public park, and possession of a falsely made license to operate a motor vehicle. Guerrero was sentenced to five years and one day for the trafficking conviction, a consecutive term of two and a half years and one day for the public park conviction, and a concurrent term of two and a half years and one day for the falsely made license conviction.
C. Post-Trial Proceedings
On October 19, 2007, Guerrero filed a timely notice of appeal of all his convictions, except for the falsely made license conviction. He also filed a motion for a new trial in the Superior Court on the grounds that " newly discovered evidence," in the form of the opinion of a handwriting expert that the chemist's initials on the cocaine testing computer charts were forged, cast doubt on the justice of his convictions and, in the alternative, that his counsel was ineffective for failing to procure a handwriting analyst in the trial. On October 30, 2008, Guerrero's motion for a new trial was denied. On November 5, 2008, Guerrero appealed his convictions and the denial of his new trial motion to the Massachusetts Appeals Court.
Guerrero raised eight issues on appeal: 1) that the trial judge erroneously denied his motion to dismiss based upon the destruction of the evidence, 2) that the admission of a photocopy of a certificate of drug analysis violated the best evidence rule, 3) that the trial judge improperly questioned a witness and advised the Commonwealth as to how to lay a proper foundation, 4) that the evidence was insufficient to support a conviction for distributing a controlled substance within one hundred feet of a public park, 5) that the trial judge erroneously declined to give a jury instruction on missing evidence, 6) that the trial judge's response to a jury question was confusing and prejudicial, 7) that the trial judge erroneously denied his motion for a new trial based upon newly-discovered handwriting evidence and ineffective assistance of counsel, and 8) that the previously ...