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Bester v. Ryan

United States District Court, D. Massachusetts

October 19, 2016

SHANE BESTER, Plaintiff,
v.
KELLY RYAN, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          George A. O'Toole. Jr. United States District Judge

         The magistrate judge to whom this matter was referred has recommended that Bester's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. Bester has filed an objection to the Report and Recommendation ("R&R"). After carefully reviewing the pleadings, the parties' submissions, the R&R, and the objection to the R&R made by Bester, I agree with the magistrate judge's analysis and conclusions. The case Bester most relies on in his objection, Shepard v. United States. 290 U.S. 96 (1933), was a case about federal evidentiary rules, not about a constitutional rule applying the Sixth Amendment's Confrontation Clause, and it provides no support for his petition. For the reasons given in the R&R, the state court decision at issue was neither contrary to nor an unreasonable application of clearly established federal law as articulated by the United States Supreme Court.

         Accordingly, I ADOPT the magistrate judge's recommendation. The Petition (dkt. no. 1) for Writ of Habeas Corpus is DENIED.

         Because Bester has not made "a substantial showing of the denial of a constitutional right, " a certificate of appealability shall not issue. 28 U.S.C. § 2253(c)(2).

         It is SO ORDERED.

         March 29, 2016

         REPORT AND RECOMMENDATION RE: RESPONDENT'S MEMORANDUM OF LAW IN OPPOSITION TO PETITION FOR WRIT OF HABEAS CORPUS (DOCKET ENTRY #27)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Respondent Kelly Ryan ("respondent") seeks to dismiss the above styled petition for writ of habeas corpus filed under 28 U.S.C. § 2254 ("section 2254"). (Docket Entry # 27). Petitioner Shane Bester ("petitioner"), an inmate at the Massachusetts Correctional Institution in Shirley, Massachusetts, attacks a June 2010 conviction rendered in the Massachusetts Superior Court Department (Plymouth County) ("the trial court") by a jury for second degree murder and carrying a firearm without a license. Thereafter, an associate justice of the trial court ("the trial judge") adjudicated petitioner guilty of a firearms offense for having previously been convicted of three violent crimes or serious drug offenses under Massachusetts General Laws chapter 266, section 10G ("section 10G").

         Petitioner seeks habeas relief on the following ground:

"'That the judge violated the defendant's rights to confrontation by admitting into evidence a murder victim's hearsay out-of-court statement under the state of mind exception to the hearsay rule.'"[1] (Docket Entry # 21) (quoting petitioner's supporting memorandum). Respondent maintains that the rejection of the ground by the state courts was not contrary to or an unreasonable application of clearly established law as determined by the Supreme Court under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1).

         There is no indication that petitioner seeks an evidentiary hearing. Even if he did, a hearing is not warranted. Before allowing an evidentiary hearing, a federal "habeas judge 'must first consider whether such [a] hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.'" Companonio v. O'Brien. 672 F.3d 101, 112 (1st Cir. 2012) (quoting Teti v. Bender. 507 F.3d 50, 62 (1st Cir. 2007)). The petitioner "must therefore demonstrate that his allegations would entitle him to relief and that the hearing is likely to elicit the factual support for those allegations." Id.

         Here, the record before the state courts, which includes the trial transcripts setting out the admission into evidence of the victim's statements through the testimony of trial witnesses, is complete. Moreover, petitioner fails to articulate or posit facts that the state court record did not include and that, if elicited at an evidentiary hearing, would provide support for the Confrontation Clause ground for relief.

         PROCEDURAL BACKGROUND

         On June 17, 2010, the jury found petitioner guilty of second degree murder in violation of section one of Massachusetts General Laws chapter 2 65 and carrying a firearm without a license in violation of section 10(a) of Massachusetts General Laws chapter 269. (S.A. 10, 13, 1591-1592) .[2] On the same day in a jury waived trial, the trial judge found petitioner guilty of the section 10G firearms offense. (S.A. 10, 11, 13, 1634). The trial judge sentenced petitioner to life imprisonment on the murder conviction and a concurrent 18 to 20 year sentence on the two firearms convictions. (S.A. 11, 136, 1641-1642).

         Petitioner filed a timely appeal in which he unequivocally raised the Confrontation Clause claim set out in the petition.[3] (S.A. 20, 23, 35, 45-46). Petitioner also raised a claim that admission of the victim's out-of-court statements, which were neither probative of the victim's state of mind or motive, violated Massachusetts hearsay law. (S.A. 11, 12, 14, 23, 35-46, 113-115). Petitioner's brief to the Massachusetts Appeals Court ("the appeals court") based the Confrontation Clause claim on the admission into evidence of three purportedly hearsay statements by the victim admitted into evidence through the testimony of Jose DeMiranda ("DeMiranda") and Heriberto Borrero ("Borrero"). (S.A. 36). The appeals court portrayed the statements as follows:

Statement no. 1: Jose DeMiranda testified that "[the victim] told me that there is the guy in the liquor store that stabbed him before. [The victim] told me, oh, wait for me. I'm going to go talk to him real quick .... [The victim] went to talk to the person that he said stabbed him before."[4]
Statement no. 2: Jose DeMiranda testified that he overheard the victim say to the defendant that he had stabbed him before and that the defendant responded that he was not the person that stabbed the victim.[5]
Statement no. 3: Heriberto Borrero testified that the "[victim] told me that was the guy that was-he was with a group of guys that had stabbed [the victim]. And he was one of the guys that was holding [the victim] down."[6]

Commonwealth v. Bester. 2012 WL 2463965, at *1 n.l (Mass.App.Ct. June 29, 2012).

         Petitioner relies on the same statements as the underlying basis for the Confrontation Clause ground for relief in the petition. As set forth in the petition's supporting memorandum, petitioner argues that the victim's out-of-court statements that petitioner stabbed the victim "before" or was "one of the guys holding him down when he was stabbed" reflect past events "inadmissable as probative of his state of mind" and not probative of any motive. (Docket Entry # 20, p. 15). Liberally construing the pro se petition, it therefore articulates all three statements as the basis for the Confrontation Clause ground for relief.

         On direct appeal, the appeals court sustained the trial court's rulings and affirmed the judgment on June 29, 2012. Commonwealth v. Bester. 2012 WL 2463965 (Mass.App.Ct. June 29, 2012); (S.A. 132-134). The decision primarily addressed the admission into evidence of the victim's statements under the state of mind exception to the Massachusetts hearsay rule and to show motive. Id. In a footnote, the decision addressed and rejected the merits of the Confrontation Clause claim. Id.. 2012 WL 2463965, at *1 n.2 ("[b]ecause we conclude that the challenged out-of-court statements were not testimonial in character, we reject the defendant's confrontation clause argument").

         On July 9, 2012, petitioner filed an application for further appellate review ("ALOFAR") in Massachusetts Supreme Judicial Court ("SJC") raising the Confrontation Clause claim. (S.A. 16, 123, 130-131). On August 3, 2012, ...


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