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Jean-Baptiste v. Thompson

United States District Court, D. Massachusetts

February 10, 2017

SAMUEL JEAN-BAPTISTE, Petitioner,
v.
MICHAEL THOMPSON, Respondent.

          Date March 15, 2017

         ORDER

          Indira Talwani, United States District Judge

         After 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 accordingly DENIED.

         IT IS SO ORDERED.

          REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 PETITION (#1)

          DONALD L. CABELL, U.S.M.J.

         I. Introduction

         Petitioner 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[1]. 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.

         II. Facts

         A. The Underlying Crime

         Because 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.

         The 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).

         15-17 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).

         Noel 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).

         The 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[2] 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).

         The two 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).

         Noel 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).

         They 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).

         Noel 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).

         Malden 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).

         Aurelien 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; Exhibits 16A-16I).

         A day 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).

         Medford 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; ...


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