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Vega v. Commonwealth

United States District Court, D. Massachusetts

November 22, 2016

RICHARD CARL VEGA, a/k/a Ricardo Mazzarino, Plaintiff,
v.
COMMONWEALTH OF MASSACHUSETTS, Defendant.

          MEMORANDUM AND ORDER

          PATTI B. SARIS CHIEF, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On November 3, 2016, plaintiff Richard Carl Vega, a/k/a Ricardo Mazzarino (“Vega”), a civil committee in custody at the Massachusetts Treatment Center (“MTC”) in Bridgewater, Massachusetts, filed a self-prepared complaint against the Commonwealth of Massachusetts. He challenges his criminal convictions for rape with respect to criminal cases tried in the Suffolk County Superior Court. See Commonwealth v. Vega, SUCR1987-066623, SUCR1989-076886-A and SUCR1989-076886-B. In addition, Vega seeks to appeal the September 28, 2016 decision by the Massachusetts Supreme Judicial Court (“SJC”) denying his petition for Further Appellate Review (“FAR”)and request for a new trial, alleging that the SJC violated his constitutional rights.

         Briefly, the background is as follows.[1] In November, 1990, Vega was convicted after a jury trial, of three counts of rape arising from three distinct acts of vaginal and anal rape of an elderly woman. In 1994, his convictions were affirmed on appeal. Thereafter, Vega filed numerous pro se motions, including two motions for a new trial. The first motion was filed in 2000 and was denied. His subsequent appeal was dismissed for procedural reasons. Five years later, in 2005, Vega filed a second motion seeking release. That motion was denied and the denial was affirmed on appeal because Vega's claims were waived by his failure to raise them on direct appeal or in his first motion for a new trial, and the court concluded that Vega had not shown a substantial risk of a miscarriage of justice. Vega's non-waived claims were disposed of in the direct appeal. On May 13, 2013, Vega filed a third motion for a new trial, which was denied by the trial judge. On appeal, the denial was affirmed.

         On March 22, 2016, Vega filed a motion with the SJC to file a FAR application late, along with a motion for appointment of counsel and a Notice of Appeal. Commonwealth v. Vega, FAR-24218. Two months later, on May 23, 2016, he filed a second motion to file a FAR application late. A month after that, on June 28, 2016, he filed a third motion to file FAR application late and a motion for limited briefs. Id. Two months after that, on August 26, 2016, Vega filed his FAR application. On September 28, 2016, the SJC denied Vega's FAR application.

         Weeks after the SCJ denial of his FAR application, on October 11, 2016, Vega filed a letter to the SJC regarding his notice of appeal along with a request to the SJC to assemble the record for the United States District Court. SJC docket sheet (Docket No. 1-1 at 3). On October 25, 2016, the SJC Clerk sent a letter to Vega advising that the SJC office had received his notice of appeal from the denial of his FAR application, and further advising that the SJC does not assemble the record for federal courts on FAR denial applications. Letter (Docket No. 1-1 at 1).

         In this action (filed a week after the Clerk's letter), Vega asserts the same or similar arguments raised in his prior motions for a new trial. These arguments include, inter alia, that his due process rights were violated because: (1) exculpatory evidence of polygraph tests in 1987 and 1988 were not admitted into evidence at trial and the jury was not notified of these tests; (2) exculpatory evidence of the polygraph tests were not provided to his second defense counsel; (3) he was subject to double jeopardy because the Commonwealth did not indict him within 30 days after his arrest on August 13, 1987, but waited two years before secretly bringing two new indictments against him in March, 1989 based on the same single event and same victim of rape and did not disclose the two indictments until the first day of Vega's trial; (4) he was sentenced unlawfully to consecutive terms of incarceration to 19.5 to 20 years on each indictment, rather than concurrent terms, with 20 years probation from on or after, despite the fact that the indictments arose out of the same event;[2] (5) the government sought to “blackmail” him into a plea bargain and later filed separate indictments for the same offense because Vega would not accept a plea bargain; (6) DNA evidence was used to convict him notwithstanding that the government's DNA experts admitted to presenting evidence of false positives, erred in the test results, and admitted that the favor of the doubt about the test results was given to the government rather than to Vega because the government had commissioned and paid for the tests, and because future contracts with the state were expected; (7) the trial court erred in not conducting a voir dire of the jury to ensure they were attentive during the DNA evidence, since one of the jurors was sleeping through the testimony; (8) he had ineffective assistance of several of his attorneys in connection with the withholding of the favorable polygraph results, the failure to object or seek a mistrial when DNA evidence of Vega's pants was shown not to be a match to the victim, and the failure to alert the court regarding the government's misconduct with respect to plea negotiations.

         As relief, Vega seeks judgment against the SJC, reversal of his criminal convictions, and a new trial.

         Along with the complaint, Vega filed a Motion for Leave to Proceed in forma pauperis (Docket No. 2), a Motion to Appoint Counsel (Docket No. 3), and a Motion for Habeas Corpus ad Testificandum for Oral Arguments and Evidentiary Hearing (Docket No. 4).

         II. DISCUSSION

         A. The Motion for Leave to Proceed In Forma Pauperis

         As an initial matter, while Vega's custodial status is not entirely clear, based on the MTC records noted herein, the Court considers, for the purposes of determining eligibility to proceed in forma pauperis, that Vega's current custody is that of a “civil committee” and not a “prisoner” within the meaning of 28 U.S.C. § 1915(h)(defining a prisoner as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”). In light of this, the Prison Litigation Reform Act's (“PLRA”) requirement that prisoners must pay the filing fee of the Court for civil actions ($350.00) (pursuant to the formula set forth in 28 U.S.C. § 1915(b)), does not apply. Thus, Vega is eligible for a complete waiver of the filing and administrative fees ($400.00). After a review of Vega's financial affidavit and MTC account statement, the Court finds that he lacks sufficient funds to pay the filing and administrative fees.

         Accordingly, Vega's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED.

         B. Screening ...


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