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Dumas v. Marchilli

United States District Court, D. Massachusetts

March 3, 2017

ROY DUMAS, Petitioner,


          O'TOOLE, D.J.

         A Massachusetts Superior Court jury convicted the petitioner, Roy Dumas, of rape of a child, indecent assault and battery on a person fourteen or older, and four counts of rape. His convictions were affirmed by the Massachusetts Appeals Court. Commonwealth v. Dumas, 986 N.E.2d 878 (Mass. App. Ct. 2013). The Massachusetts Supreme Judicial Court denied further appellate review, and the petitioner's petition for a writ of certiorari was denied by the Supreme Court. The petitioner timely filed a petition for habeas relief pursuant to 28 U.S.C. § 2254. He seeks to vacate his convictions because he claims that the evidence was insufficient to support his convictions and because the Massachusetts courts retroactively applied a new interpretation of the state rape statute against him.

         I. Background

         According to evidence favorable to the Commonwealth, the victim, the child of Hmong refugees from Laos, was fifteen or sixteen years old at the time of the charged offenses. Consistently with her religious tradition, she believed that her ancestors could influence her life, both to help and to harm her. The petitioner held himself out as the leader of a secret, purportedly charitable organization that only people of Asian or Native American descent could join. The victim was encouraged to join the organization, but was told by the petitioner that she would have to pass some tests in order to be admitted. The petitioner thereafter sexually assaulted the victim on multiple occasions under the guise of tests she needed to pass and/or penalties for breaking supposed rules. He told the victim that he was able to communicate with her ancestors, and if she did not comply with his sexual demands, the victim's ancestors would hurt her or her family. The victim believed the petitioner, and in particular believed that the petitioner could induce the ancestors to harm her physically. It was the Commonwealth's theory that the petitioner's threats to cause harm to the victim with the aid of her ancestors constituted “constructive force” under Massachusetts law that was sufficient to prove an element of the crime of rape by force.

         The petitioner disputes the victim's age when the first sexual acts took place. On direct examination, the victim testified that the first alleged assault occurred when she was fifteen or sixteen. When asked to clarify, she stated “I think I was fifteen.” (Suppl. Answer 441 (dkt. no. 29).) Later in the examination, she agreed with the prosecutor that she had been fifteen the first time the petitioner performed a sexual act with her. On cross-examination, she acquiesced that “possibly” she was sixteen when the first assault took place. (Id. at 496.)

         At least four other assaults followed the first incident, and there seems to be no dispute that all took place when the victim was sixteen. In each instance, the petitioner told the victim that these sexual acts were a necessary test to enter the organization or a penalty that she must endure or else her ancestors would be upset with her and would harm her. The acts included, among other things, blindfolding, being stripped naked, and being taken deep into the woods with no one else around. On at least one occasion, the victim began to cry loudly and the petitioner yelled at her.

         II. Standard of Review

         Post-conviction relief pursuant to § 2254 is an extraordinary remedy. Under the standard of review established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a habeas petition will not be granted “with respect to any claim that was adjudicated on the merits in state court proceedings” unless the state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Habeas relief is not warranted if the state court's decision was merely erroneous or incorrect; it must have been “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 27 (2002).

         III. Discussion

         The petitioner contends that his § 2254 petition should be granted on three distinct grounds. First, he contends that there was insufficient evidence to convict him of rape of a child because the victim was equivocal as to her age at the time of the first incident. Second, he argues that there was insufficient evidence to convict him of the four counts of rape because there was insufficient evidence that he used force to coerce the victim. Relatedly, he says that the legal doctrine of “constructive force” was only developed in a way to encompass his actions in judicial decisions that were published after the commission of the crimes, so that holding him to that standard would violate due process.

         A. Sufficiency of the Evidence

         Under Jackson v. Virginia, the record evidence must be substantial enough to support a finding of guilt beyond a reasonable doubt. 443 U.S. 307, 318-19 (1979). However, in a § 2254 petition, claims for review under Jackson “are subject to two layers of judicial deference.” Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam). First, based on the Jackson standard “[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Id. (quoting Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam)). Second, following the standard set out in § 2254(d)(1), a federal court may overturn a state court's sufficiency analysis under Jackson “only if the state court decision was objectively unreasonable.” Id. (quoting Cavazos, 132 S.Ct. at 4) (internal quotation mark omitted).

         The standard is high but not insurmountable. See O'Laughlin v. O'Brien, 568 F.3d 287, 301-02 (1st Cir. 2009) (collecting cases). The record evidence must be sufficient for a jury to conclude that the petitioner committed the crime beyond a reasonable doubt. Simply because the “instant facts may support a reasonable speculation” that the crime was committed is not “sufficient evidence to establish [the petitioner's] guilt.” See id. at 302.

         i. Age of the Victim

         The petitioner claims that insufficient evidence was presented at trial to support a finding beyond a reasonable doubt that the victim was under the age of sixteen at the time of the first assault, and thus his conviction for rape of a child must be overturned under Jackson. To prove the charge of rape of a child, it was necessary for the Commonwealth to prove beyond a reasonable doubt that the assault took place when the victim was under the age of sixteen. Mass. Gen. Laws, ch. 265, § 23. The Massachusetts crime of statutory rape has only two elements: “(1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age.” Commonwealth v. Bernardo B., 900 N.E.2d 834, 845 (Mass. 2009).

         Evidence of the victim's age at the first sexual encounter between herself and the petitioner was sparse. The uncontested evidence is that the victim turned sixteen in early April, 2003. (Suppl. Answer 433.) The first time the victim met the petitioner, she was brought “[t]o a house on Madison Street.” (Id. at 439.)[1] The victim testified on direct:

Q. Do you remember what the weather was like when [a third party] brought you there, what it was like the first time you were brought there?
A. Springtime.


Q. Now, how old were you when that [first meeting] took place, ...

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