Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mercado v. Roden

United States District Court, D. Massachusetts

December 12, 2016

JOSE M. MERCADO, JR., Petitioner,
v.
GARY RODEN, Respondent.

          MEMORANDUM OF DECISION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

          JUDITH GAIL DEIN, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On December 16, 2005, the petitioner, Jose M. Mercado, Jr., was found guilty by a Plymouth Superior Court jury of first-degree murder on a theory of deliberate premeditation, and of possession of a firearm. His conviction was affirmed by the Massachusetts Supreme Judicial Court on March 3, 2010. Commonwealth v. Mercado, 456 Mass. 198, 922 N.E.2d 140 (2010). This matter is presently before the court on Mercado's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Following a complex procedural history, the sole issues remaining are (1) whether the closure of the courtroom during jury selection violated Mercado's rights under the Sixth Amendment to the United States Constitution; and (2) whether Mercado was deprived of his constitutional right to effective assistance of both trial counsel and appellate counsel because of their failure to object to the closure of the courtroom, or to raise it as an issue following trial. The Respondent contends that these issues are not timely, and are otherwise not viable. For the reasons detailed herein, this court finds that the issues Mercado is seeking to raise are time-barred. Therefore, the habeas petition is DENIED.

         II. STATEMENT OF FACTS[1]

         The Underlying Crime

         Since the events relating to the underlying crime are not relevant to the issues presently before the court, they will be discussed only briefly. As described by the Massachusetts Supreme Judicial Court (“SJC”) in connection with its review of his conviction, the jury could have found that Mercado engaged in an altercation with the victim on June 21, 2002 in the parking lot of a liquor store in Brockton, Massachusetts. Commonwealth v. Mercado, 456 Mass. 198, 199-200, 922 N.E.2d 140, 143 (2010). The dispute was a continuation of a running argument about the defendant's failure to pay for a car, which he had bought from the victim and which had broken down. Id. at 200, 922 N.E.2d at 143. There were many people in the immediate vicinity, including children and one Nelly Corea, who had set up a chair in the parking lot to braid hair for money. Id. at 199, 922 N.E.2d at 143. The argument became heated and the two men were "chest butting" before the defendant left for a period of time. Id. at 200, 922 N.E.2d at 143-44. When the defendant returned, the victim was having his hair braided by Corea. Id. at 201, 922 N.E.2d at 144. The defendant had a gun and he shot the victim once, fatally, in the chest. Id. The defendant subsequently confessed. Id. at 201-02, 922 N.E.2d at 144-45.

         Procedural Background - State Court Proceedings

         Mercado was convicted by a Plymouth County jury on December 16, 2005 of first degree murder on a theory of deliberate premeditation, and of unlawful possession of a firearm. (SA 8). He was sentenced to life imprisonment with a concurrent sentence of one year to one year and one day on the firearms charge. (Id.). Mercado filed a timely appeal to the SJC wherein he raised the following claims: (1) that the trial judge impermissibly restricted his cross-examination of Corea, a Commonwealth witness; (2) that trial counsel failed to object to the trial judge's refusal to instruct the jury on self-defense; (3) that trial counsel failed to object to the judge's instruction on mental impairment; and (4) that the trial judge failed to give a curative instruction concerning the prosecutor's repetitive mocking of the defendant's family during his summation. (SA 21-22). He also requested that the SJC exercise its powers under Mass. Gen. Laws ch. 278, § 33E and either grant him a new trial or reverse the verdict. (SA 22). In an opinion dated March 3, 2010, the SJC affirmed his convictions. Commonwealth v. Mercado, 456 Mass. 198, 922 N.E.2d 140 (2010).

         On September 13, 2010, Mercado filed a pro se motion for a new trial. (SA 9, 135). Therein he argued to the trial court, inter alia, that he had been wrongfully precluded from putting in evidence relating to self-defense; that he had not knowingly, intelligently and voluntarily waived his right to testify since he was being medicated with antipsychotic drugs, and because he had been misled by counsel's wrongful advice and the court's erroneous ruling excluding evidence of the victim's reputation; that he had been wrongfully precluded from testifying on his own behalf; and that trial and appellate counsel had provided ineffective assistance of counsel for reasons related to those claims. (SA 135-138). The motion for a new trial was denied on November 3, 2010. (SA 156).

         On December 9, 2010, Mercado applied to a single justice of the SJC for leave to appeal the denial of his motion for a new trial. (SA 13, 160-196). The single justice concluded that Mercado "has not presented >a new and substantial question which ought to be determined by the full court.' G.L. c. 278, § 33E." (SA 207). Therefore the application for leave to appeal was denied on February 3, 2011. (SA 13, 207-08).

         The Federal Habeas Petition

         Mercado's habeas petition was filed on February 17, 2011. Therein he raised the following seven grounds: (1) the trial judge violated his Sixth Amendment right to confront his accusers by limiting the cross-examination of a Commonwealth witness; (2) the trial judge provided improper jury instructions regarding mental impairment in violation of due process; (3) the trial judge failed to instruct the jury on self-defense in violation of due process; (4) the prosecutor committed misconduct during closing by smirking at family members, and the trial judge failed to give a curative instruction to the jury; (5) the trial judge violated his Sixth Amendment right to confront his accusers by permitting a medical examiner to provide testimony regarding an autopsy report written by another medical examiner; (6) the petitioner was unfairly prevented from raising issues relating to the victim's prior conduct in support of the claim of self-defense, as permitted by Commonwealth v. Adjutant; and (7) the petitioner did not voluntarily and knowingly waive his right to testify and was misled at trial by the judge's instructions. (Docket No. 1).

         The Petitioner moved on October 29, 2011 to stay the habeas proceedings so that he could exhaust his state remedies with respect to three new claims. Specifically he wanted to raise the issue of the failure to present the testimony of three witnesses at trial; the alleged closure of the courtroom during jury voir dire; and counsel's failure to present certain mental health issues and records to the state court. The Respondent opposed the stay, and this court originally denied the motion to stay on October 4, 2012, finding that the Petitioner had failed to establish good cause for not exhausting these claims. (Docket No. 21). However, this court stayed the action for the appointment of counsel to address the merits of the petition. (Id.). Counsel was appointed on October 15, 2012. (Docket No. 22).

         Rulings on the Alleged Closure of the Courtroom

         On April 29, 2013, Petitioner, through counsel, filed a second motion for a new trial in Plymouth Superior Court, and the next day filed a motion for reconsideration of this court's denial of the request for a stay. (Docket Nos. 28, 29). These pleadings raised the issues presently before the court, namely whether Mercado's constitutional rights were violated due to the closure of the courtroom during jury selection, and whether there was ineffective assistance of trial and appellate counsel in failing to assert those rights. This court granted the motion for reconsideration, over the Respondent's objection, on August 19, 2013. (Docket No. 34). The Petitioner was ordered to submit monthly status reports as to the progress of his second motion for a new trial in the state court. (Id.). This court deferred ruling on whether the issue of the closure of the courtroom was timely in the context of Mercado's habeas petition, and asked for briefing on the issue whether the original habeas petition could be amended to include these new claims. (Id.).

         In connection with his motion for a new trial filed with the trial judge, Mercado submitted affidavits from family members which established that they had been barred from the courtroom during jury selection. (See Affidavit of Maria Mercado at ¶¶ 8-9 (Docket No. 48-1 at 20); Affidavit of Luz Perez at ¶¶ 5-6 (Docket No. 48-1 at 22)). In addition, he submitted the Affidavit of Jack M. Atwood, his trial counsel. Attorney Atwood had been practicing law since 1972 and trying cases in Plymouth County Superior Court for over 40 years. (Affidavit of Jack M. Atwood at ¶¶ 1-2 (Docket No. 48-1 at 24)). He attested in relevant part as follows:

4. At the time of the Defendant's trial, it was the consistent practice of the Plymouth County Superior Court in Brockton to close the courtroom to the public during jury selection.
5. The practice in the Plymouth County Superior Court in Brockton of closing the courtroom to the public during selection was followed uniformly and without exception from the time I began to try cases there in February of 1973 up until the decision of the Supreme Judicial Court in Commonwealth vs. Cohen (2), 456 Mass. 94 (2010) and slightly thereafter.
. . . .
8. Up until the decision of the Supreme Judicial Court in Commonwealth v. Cohen (2), 456 Mass. 94 (2010), I was not aware of the constitutional implications of closing ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.