United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C § 2254
M. PAGE KELLEY, Magistrate Judge.
Lazaro Fernandez ("Fernandez" or "Petitioner") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 for violations of his constitutional rights. (#1.) In 2009, a Massachusetts jury found Fernandez guilty of one count of rape of a child under Mass. Gen. L. c. 265 § 23. (#1.) The United States of America ("Respondent or "Government") opposes the Petitioner's motion. (#18.)
II. Factual Background
On April 7, 2009, after nine day trial in Essex County, a jury convicted Fernandez of rape of a child stemming from an incident that took place on November 22, 2006 involving a then fourteen-year-old girl. (S.A., #3 at 2.) The victim testified at trial that Fernandez orally raped her in the stairwell of her apartment building. (Tr. V, p. 224.) Her friend, Tanairi Portela, testified as the first complaint witness. (Tr. VII, p. 130.) That same day, the jury also convicted a co-defendant, Alberto Cardozo, for indecent assault and battery and child enticement stemming from a separate assault against the same victim that happened earlier that same day. (S.A., #3 at 2.) The victim was the daughter of Cardoza's girlfriend. (Tr. V, p. 160-68.) Fernandez was sentenced to a term of twelve to eighteen years in prison. (S.A., #3 at 3.)
III. Procedural Background
Fernandez filed a timely appeal on his conviction to the Massachusetts Appeals Court ("MAC") (S.A., #2.) On January 18, 2013, the MAC affirmed his conviction in an unpublished opinion. Commonwealth v. Fernandez, 83 Mass.App.Ct. 1107, 2013 WL 184023 (Mass.App.Ct. January 18, 2013) (table, text in Westlaw). On March 1, 2013, the Supreme Judicial Court ("SJC") denied further appellate review. Commonwealth v. Fernandez, 464 Mass. 1107 (2013) (table).
On November 25, 2013, Fernandez filed a pro se "Motion for New Trial and Motion for DNA Testing." (S.A., #7.) That motion was denied on December 4, 2013. (S.A. #8 at 4.) Fernandez appealed the trial judge's decision to the MAC, which issued a decision affirming the trial judge's decision. Commonwealth v. Fernandez, 86 Mass.App.Ct. 1123, 2014 WL6920655 (Mass.App.Ct. Dec. 10, 2014) (table, text in Westlaw). Again, Fernandez's request for further appellate review by the SJC was rejected. Commonwealth v. Fernandez, 470 Mass. 1107 (2015) (table).
On March 23, 2015, Fernandez filed a petition for habeas corpus relief with this court. 28 U.S.C. § 2254; (#1.) The respondent filed an answer and supplemental answer on June 10, 2015. (#12.) Fernandez was subsequently ordered to file a memorandum in support of his petition which he did on July 30, 2015. (#15.) The respondent filed a memorandum in opposition to the petition on August 27, 2015. (#18.) The case is now poised for disposition.
Fernandez seeks section 2254 relief based on two claims. First, he asserts his Sixth Amendment right to confront the witness against him was denied in violation of Crawford v. Washington, 541 U.S. 36 (2004), when the state allowed multiple "first complaint witnesses" to testify at his 2009 jury trial for rape of a child. (#15 at 1-2.) Second, Petitioner argues that DNA testing was sought and erroneously denied in violation of District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52, 72 (2009). (#15 at 3.)
A. Standard of Review
Applications for a writ of habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. Eligibility for relief under AEDPA is "intentionally difficult to meet." Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376 (2015) (per curiam). A federal court may not issue a habeas petition on a claim that was fully adjudicated on the merits of state court proceedings unless the state court decision 1) was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States or 2) 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)(1) and (2).
A state court decision will be found "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decided a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A decision may be an "unreasonable application" of established federal law if a state court is able to correctly identify the governing principle from the Supreme Court's decision but unreasonably applies that principle to the case before it. Id. at 413. An "unreasonable application" requires "some increment of incorrectness beyond error... The increment need not necessarily be great, but it must be great ...