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Pena v. Thompson

United States District Court, D. Massachusetts

December 8, 2015

ULYSSES PENA, Petitioner,

          Ulysses Pena, Petitioner, Pro se, Plymouth, MA.

         For Michael A Thompson, Respondent: Annette C. Benedetto, LEAD ATTORNEY, Department of Attorney General, Boston, MA; Kris C. Foster, Attorney General's Office, Boston, MA.




         Petitioner 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.

         Pena 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.


         On 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.

         On 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.

         Following 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 probationer." ).

         Thereafter, 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.

         At the 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.

         On July 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 409-10.

         Pena 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.[1] S.A. 172. On May 9, 2012, the SJC rejected Pena's appeal, affirming on other grounds the judgment of the MAC.[2] 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 ...

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