United States District Court, D. Massachusetts
Ulysses Pena, Petitioner, Pro se, Plymouth, MA.
Michael A Thompson, Respondent: Annette C. Benedetto, LEAD
ATTORNEY, Department of Attorney General, Boston, MA; Kris C.
Foster, Attorney General's Office, Boston, MA.
D., BURROUGHS, DISTRICT JUDGE.
Ulysses Pena (" Pena" or " Petitioner" )
is a Massachusetts state prisoner at MCI Concord currently
serving concurrent sentences of four to six years and four to
five years for violating the terms of the probation imposed
as part of various convictions in 2006. Pena, who is
proceeding pro se, has filed a petition for a writ of habeas
corpus challenging the revocation of his probation, pursuant
to 28 U.S.C. § 2254.
raises a single claim for habeas corpus relief: " that
he was denied the Sixth Amendment right to effective
assistance of counsel" when he was " forced to
proceed pro se" during his probation revocation hearing.
[ECF No. 1, at 3]. Respondent Michael A. Thompson argues that
the Massachusetts Supreme Judicial Court (" SJC" )
reasonably applied the appropriate federal law in determining
that Pena waived his right to counsel and that habeas corpus
relief is therefore not appropriate under § 2254. Having
carefully considered the parties' submissions, and
construing Pena's arguments liberally because he is
proceeding pro se, the Court finds that habeas corpus relief
is unwarranted and DENIES Pena's Petition.
FACTUAL AND PROCEDURAL BACKGROUND
November 18, 2004, a Suffolk County grand jury returned seven
indictments against Pena, charging him with (1) breaking and
entering in the daytime with the intent to commit a felony,
Mass. Gen. L. ch. 266, § 18; (2) larceny over $250,
Mass. Gen. L. ch. 266, § 30(1); (3) possession of
burglarious tools, Mass. Gen. L. ch. 266, § 49; (4)
resisting arrest, Mass. Gen. L. ch. 268, § 32B; (5-6)
two counts of assault and battery on a police officer, Mass.
Gen. L. ch. 265, § 13D; and (7) attempting to commit a
crime, Mass. Gen. L. ch. 274, § 6. Supplemental Answer
(" S.A." ) 86, 97. On April 24, 2006, Pena pled
guilty to the first four charges and the court dismissed the
remaining counts upon the Commonwealth's oral motion.
S.A. 91-92. Pena was sentenced to two years and one day of
incarceration on the breaking and entering charge, followed
by two years of probation on the remaining charges.
Commonwealth v. Pena, 462 Mass. 183, 184, 967 N.E.2d
603 (2012). He was released from prison on October 27, 2006,
and his two-year term of probation therefore extended until
October 27, 2008. Id.
March 22, 2007, based on new allegations, the probation
department filed a notice of surrender and hearing for
alleged probation violations. Pena,
462 Mass. at 185. On June 13, 2007, based on many of these
same allegations, a Suffolk County grand jury returned 15
indictments charging Pena with various counts of breaking and
entering, receiving stolen property, and larceny. S.A. at
244-268. The notice of surrender, which was amended on June
22, 2007 and again on February 8, 2008, alleged that the
facts underlying nine of the indictments and Pena's
failure to report to his probation officer in January 2008
violated the terms of Pena's probation.
Pena, 462 Mass. at 185.
the filing of the notice of surrender on March 22, 2007, Pena
was almost immediately appointed counsel. S.A. 92. On May 22,
2007, appointed defense counsel John P. Moss filed a motion
to withdraw as counsel, which the court granted. Id.
Lefteris Travayakis replaced Moss as Pena's appointed
counsel, but, on January 2, 2008, he too, moved to withdraw
as counsel. Id. at 93. This time however, Judge
Ball, the judge then presiding over Pena's revocation
hearing, only permitted a partial withdrawal and required
Travayakis to act as standby counsel. Id. Even after
a renewed motion to withdraw on January 15, in which he
averred that " [c]ertain circumstances and discussions
lead [sic] to an irretrievable breakdown in the
attorney-client relationship that resulted in my filing a
Motion to Withdraw from this matter on January 2, 2008,"
Travayakis remained " stand by counsel" to Pena.
S.A. 110-11. As standby counsel, his " sole
obligation" was to provide " advice if
asked." See id. at 110. Travayakis was explicitly
absolved of the obligation to " advocate in open court
or to prepare the case for trial." Id. at 110.
There is a docket entry from this January 15 hearing evincing
a waiver of counsel colloquy between Pena and the court, S.A.
94, although the specifics of this colloquy are not further
documented. Pena, 462 Mass. at 193
n.13 (" There is nothing in the record to indicate what
occurred during the judge's colloquy with the
the probation revocation hearing was continued several times
in the first months of 2008, with at least two continuances
being granted so that Pena could retain private counsel. S.A.
at 93-94. Pena appeared at the April 30, 2008 probation
revocation hearing, and moved once more for a continuance to
retain private counsel. This time Judge Gaziano, then
presiding over the probation revocation hearing, denied the
request for a continuance, citing a hearing on April 11, 2008
in which Gaziano had " clearly told Mr. Pena that this
[wa]s his last chance." S.A. at 314. Judge Gaziano then
ordered that the hearing commence with Pena proceeding pro
se. Pena, 462 Mass. at 185. Pena
objected vigorously and repeatedly throughout the
proceedings, but Judge Gaziano ruled that Pena had "
refused appointed counsel" and " said that [he]
would represent [him]self," finding that Pena's
efforts to seek an additional continuance were designed
" for the purposes of delay" and would not be
permitted. S.A. at 315.
hearing, the Commonwealth called a probation officer and two
detectives as witnesses, and Pena cross examined each. S.A.
315-87. Upon the conclusion of the Commonwealth's
presentation of evidence, Pena again asked for a continuance
so that he could subpoena witnesses and attempt to obtain
private counsel. S.A. 388-90. This time the court acquiesced,
and the probation revocation hearing was continued once more.
S.A. 390. On June 24, 2008, Pena again appeared in court, at
which time Travayakis again moved to withdraw as standby
counsel. S.A. at 15. The court granted this motion, appointed
Bruce Carroll as Pena's standby counsel, and continued
the hearing again until July 24, 2008. Id.
29, 2008, the hearing resumed, but without Pena having
produced witnesses in his defense or secured private counsel.
S.A. at 398. When asked by the court if he had any evidence
to present, Pena responded that, " I cannot represent
myself. I am unable to represent myself. I object to the
proceedings in total. You have violated my Sixth Amendment
right to counsel. I have nothing else to say." S.A at
398-99. Judge Gaziano rejected Pena's renewed claim of
denial of counsel, ruling that Judge Ball had previously
addressed " the counsel issue" and that he would
not " revisit Judge Ball's ruling." S.A. at
401. The Commonwealth then presented its closing argument,
S.A. at 400, after which the court found Pena in violation of
his probation, S.A. at 406, and imposed its sentence. S.A. at
filed a notice of appeal the same day. S.A. at 96. The
Massachusetts Appeals Court panel rejected his appeal on
December 10, 2008. S.A. at 187. Pena then moved for further
appellate review, S.A. 160, which the SJC allowed on March
31, 2011. Id. The SJC had before it transcripts of
the probation surrender hearings on April 30 and July 29,
2008, but transcripts of any other proceedings were
apparently not part of the record. S.A. 172. On May 9, 2012,
the SJC rejected Pena's appeal, affirming on other
grounds the judgment of the MAC. The SJC ruled, in
pertinent part, that " the judge did not violate the
probationer's right to be represented by counsel at his
probation violation hearing" because Pena had "
refused" the services of ...