United States District Court, D. Massachusetts
March 15, 2017
Talwani, United States District Judge
review of the Magistrate Judge’s February 10, 2017,
Report and Recommendation [#41] [attached hereto],
to which there has been no objection, the court hereby
ACCEPTS and ADOPTS the recommendation for the reasons set
forth therein. The Petition for Writ of Habeas Corpus [#1] is
REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 PETITION
L. CABELL, U.S.M.J.
Samuel Jean-Baptiste (“the petitioner”) is
currently incarcerated at the Massachusetts Correctional
Institution in Concord following his conviction in the
Middlesex County Superior Court for home invasion, assault in
a dwelling, assault with a dangerous weapon, assault and
battery, unlawful possession of a loaded firearm, masked
armed robbery and unlawful possession of
ammunition. Pending before the Court is the
petitioner’s petition for writ of habeas corpus under
28 U.S.C. § 2254. (Dkt. No. 1). After careful
consideration of the record in this case, and for the reasons
set forth below, it is respectfully recommended that the
habeas petition be denied.
The Underlying Crime
the Appeals Court’s decision did not include findings
of fact, the facts as the jury might have found them are
taken from the trial transcript. In habeas proceedings filed
by a prisoner in state custody, “a determination of
factual issues by the State court should be presumed to be
correct.” 28 U.S.C. § 2254(e)(1). The petitioner
has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.”
Id. The petitioner does not appear to challenges the
state court’s factual findings and in any event has not
presented clear and convincing evidence to rebut the
presumption that the factual findings are correct.
petitioner and Steven Noel met in high school. (Trial
Transcript, Dkt. No. 17 Exs. A-G, [hereinafter Tr. ], Vol.
III, page 15). After Noel lost his job, the petitioner asked
Noel to help him steal money from a house in Malden. (Tr. III
17-19). Kareem Jean-Louis, who worked at a U-Haul rental
center on Route 16 near the Somerville/Medford line, and who
knew the petitioner, recalled that on September 28, 2007, the
petitioner came to her workplace and left with a U-Haul van.
(Tr. III 78-83, 85). On September 30, 2007, shortly before
midnight (October 1, 2001), Steven Noel and the petitioner
travelled to 15-17 Ellis Street, Malden, the location that
they intended to burglarize. (Tr. III 26-28).
Ellis Street is a two-family home. The petitioner had lived
in the first floor unit for five or six months in early 2007.
(Tr. II 39-40, 43). On the night of the home invasion for
which the petitioner was convicted, the second floor, known
as 15 Ellis Street, was occupied by the owner, Jean Gaston
Thermitus, his wife, and his adult son. (Tr. II 39, 48-49).
Three tenants lived on the first floor, known as 17 Ellis
Street. (Tr. II 39, 44, 80). Jean Marie Lamour lived in the
bedroom closest to the front door. (Tr. II 56, 61, 79, 88-89;
III 32-33, 37). Bernard Aurelien occupied the bedroom in the
rear of the house, off the kitchen. (Tr. II 57, 79-80, 88-89;
III 30, 32-33). Ramon Saintvil lived in the third bedroom.
(Tr. II 80, 88).
and the petitioner parked their U-Haul van directly in front
of 15-17 Ellis Street, and Noel followed the petitioner down
the driveway to the back porch. (Tr. II 51; III 28). Noel was
carrying a flashlight and a roll of duct tape. Noel testified
that the petitioner was carrying a pistol. (Tr. II 72-75, 89,
92; III 31, 33-35; Exhibits 5-8). The petitioner was able to
open the outer door, which led to an alcove from which
separate doors led to the cellar, the first floor unit, and
the second floor unit. (Tr. III 28-30, 94-96, 101-103;
Exhibits 14A-14E). The petitioner and Noel then donned black
ski masks. (Tr. II 92-94; III 27-29; IV 15-17; Exhibits 5-8).
petitioner was able to open the porch door into the alcove
with a key. (Tr. III 28-29). After checking the cellar, they
entered the dark first floor apartment and the petitioner led
them to a bedroom. (Tr. III 29-30). Bernard Aurelien was
asleep in his bedroom when he was awakened by noise at his
bedroom door. (Tr. II 89, 91; III 30-31). Two black men
wearing black sweaters and masks rushed into his bedroom.
(Tr. II 106-109). Though the room was dark, Aurelien could
see that one of the men carried a pistol and a flashlight.
(Tr. II 92-94, 110-111). He could not see whether the two men
were wearing gloves. (Tr. II 107-108). The man holding the
flashlight and pistol said to him, “Stay easy . . . if you
don't talk, everything gonna be easy.” (Tr. II 89).
The other man pocketed Aurelien's cell phone, which was
in a charger next to his bed. (Tr. II 90, 95). When Aurelien
asked “why,” the man with the pistol pointed the
gun at him and warned “if you move, I gonna fuckin'
blow you out.” (Tr. II 89, 112-113).
men tightly bound Aurelien’s hands and legs with duct
tape and covered his mouth and eyes. (Tr. II 80, 93-94). He
lay down on his bed and his head was covered by his sheet.
(Tr. II 89, 94). He listened to the two men speaking in
Haitian Creole, which he understood, and heard one say,
“Turn on the light.” (Tr. II 109). Noel testified
that he and the petitioner found the light switch, searched
the room, and then turned off the light when they left the
room. (Tr. III 32-33). Aurelien heard the men search his
pants, which he had left on the chair by his bed. (Tr. II 90,
92, 95). His wallet, containing 200 dollars, was in the
pocket of those pants. (Tr. II 95). He heard the men leave
his bedroom and enter Lamour's bedroom next door. He
heard Lamour shout and heard what he described as Lamour
being “put” on the floor. (Tr. II 95-96).
Aurelien tried to free his hands and remove the duct tape
wrapped over his mouth. (Tr. II 94-95).
testified that after he and the petitioner left
Aurelien’s bedroom they went into another bedroom. (Tr.
III 33). The petitioner knocked on the door, which was
locked, and a man inside (Lamour) opened the door. (Tr. III
33). The petitioner pulled out a pistol and rushed into the
room. (Tr. III 33-34). They told Lamour they
“wasn't trying to hurt him [and were] just here to
get some money.” (Tr. III 34). When Lamour tried to
take the pistol from the petitioner, the petitioner and Noel
grabbed Lamour and pulled him to the floor. (Tr. III 34-35).
Noel said he tied the man's legs and hands with the tape,
and “surround[ed] his mouth with the tape.” (Tr.
III 35). The petitioner took the cell phone from the computer
desk by the bedroom door, shut it off, and put it in his
pocket. (Tr. III 35).
searched the bedroom until Noel heard what he thought was
someone on a motorcycle in the driveway. (Tr. III 36-37).
Noel told the petitioner “we gotta go” and found
the front door. (Tr. III 36-37). He removed his mask before
exiting the apartment and passing “the guy that was on
the motorcycle” who was walking to the door. (Tr. III
37). The landlord's son, Jean Thermitus, remembered
seeing a white U-Haul van in front of 15-17 Ellis Street when
he returned home from work just before midnight, and passing
a man dressed in black on the front walk. (Tr. II 49-52).
said he drove the U-Haul van around the corner and waited
until the petitioner joined him. (Tr. III 37). As Noel drove
off, the petitioner began to count out cash and handed Noel
nearly 200 dollars. (Tr. III 37-40). According to Noel, the
petitioner then admitted, “I used to live there,”
and “I think one of the guys would be able to identify
me.” (Tr. III 38-39).
Police Officers Alison Lutkevich and Jesus Montoya responded
to a 12:25 a.m. dispatch to investigate an incomplete 9-1-1
call made from 17 Ellis Street. (Tr. II 54-55, 75-76, 79).
They arrived to find the front door to 17 Ellis Street
standing half open. (Tr. II 56). The front door had a
deadbolt separate from the lock in the door knob; no key was
needed to unlock the door from the inside. (Exhibits 15A,
15E). There was no sign of forced entry at either the front
or back door. (Tr. II 76, 78; III 94-96, 101-103; IV 17-20;
Exhibits 14A-14E and 15A-15E). The landlord, Jean Gaston
Thermitus, testified that he did not change the locks on the
back door after the petitioner moved out. (Tr. II 42, 47).
heard the officers knock and announce themselves and he
called out for help. (Tr. II 57, 79-80, 96). Officer
Lutkevich found Aurelien in his bedroom and helped him remove
the duct tape with which he had been bound. (Tr. II 57,
79-80). Officer Montoya and Officer Lutkevich found Lamour in
the bedroom closest to the front door of the first floor
apartment. (Tr. II 53-56). Lamour was bound with duct tape at
the arms, knees, ankles, and around his head, covering his
mouth. (Tr. II 56, 57-58, 65-66; Exhibits 2A-2D). Officer
Montoya used his knife to cut Lamour free. (Tr. II 57-58,
63-64; Exhibit 3). He saw that Lamour had some bleeding from
his gums. (Tr. II 65). He also noticed a roll of duct tape on
Lamour's bed and a flashlight on the floor. Detective
Scott Mann later collected those items, which had not been
moved from their original locations. (Tr. II 66, 72-75, 87;
IV 15-16, 24; Exhibits 5-6, 7-8). Detective Mann also
collected numerous pieces of duct tape removed from Lamour
and Aurelien. (Tr. II 57-58, 63-64, 81, 87; IV 22-23, 32;
and a half after the home invasion, the Somerville Police
stopped a pick-up truck in which Noel and the petitioner were
passengers. (Tr. V 8-10, 16-17). Somerville Detective John
Oliveira was the first to approach the petitioner, who was a
passenger in the front seat. Detective Oliveira saw the
petitioner moving his right hand and looking back over his
left shoulder. (Tr. V 9-10, 17-18). The detective ordered the
petitioner to show his hands but the petitioner did not
comply. (Tr. V 11). As the detective was about to open the
passenger door, he “heard a loud metal object hit the
right floor panel.” (Tr. V 11, 18, 19). The detective
opened the door and saw a black pistol near the seat between
the petitioner's knee and the door frame. (Tr. V 11-12,
18). He seized the pistol, later determined to be a loaded
9mm High Point pistol, and arrested the petitioner. (Tr. V
12-15, 24-27; Exhibits 26A, 26B, 27, 28). Noel later
identified this as the same pistol that the petitioner
carried “two nights before,” (Tr. III 49), and
Bernard Aurelien testified that it looked like the one
pointed at him during the home invasion. (Tr. II 96-98,
100-102, 105-106, 108, 112-113).
police officer Frank Femino assisted with the stop. (Tr. V
15, 16, 29-30). He removed Noel from the
“makeshift” bench seat behind the driver and the
petitioner and found beneath Noel's place on the
“seat” a black pistol, which was later determined
to be a “blank pistol” rather than a real gun.
(Tr. III 47; ...