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Delacruz v. Vidal

United States District Court, D. Massachusetts

March 13, 2017

JOSE DELACRUZ, Petitioner,
v.
OSVALDO VIDAL, Respondent.

          MEMORANDUM & ORDER

          TALWANI, D.J.

         Currently pending before this court is Petitioner Jose Delacruz's writ of habeas corpus petition alleging that his state court conviction and sentence violated his Constitutional rights in several respects. Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody Ex. 1 [#15]; Memorandum of Law in Support of Petitioner's Motion for Writ of Habeas Corpus, Pursuant to 28 U.S.C. § 2254 [Pet'r Memo][#16]. The Magistrate Judge to whom the matter was referred recommended that the petition be denied with prejudice. Report and Recommendation on Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus [“R&R”] [#44]. Petitioner has filed timely objections. Objections to Report and Recommendation on Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus [“Obj. to R&R”] [#61]. Having considered Petitioner's objections and reviewed the objected-to portions of the Report and Recommendation de novo, Fed.R.Civ.P. 72(b)(3), the court ADOPTS the recommendation of the Magistrate Judge and provides the following discussion as to the objections raised by Petitioner.

         I. Factual Background and Procedural History

         Petitioner's objections included no disagreement with the Magistrate Judge's statement of Factual Background or Procedural History. See R&R. 1-5 [#44].

         II. Overview of Petitioner's Claims

         Petitioner's objections also included no disagreement with the Magistrate Judge's statement of Overview of Petitioner's Claims. See R&R 5 [#44].

         III. Discussion

         Petitioner has raised two objections to the Report and Recommendation. First, he argues that his first six claims are not procedurally defaulted, because he has demonstrated cause for the default and actual prejudice as a result. Obj. to R&R 1-3 [#61]. Second, he asserts that his seventh claim is meritorious. Id. at 3-4.

         A. Procedural Default on First Six Claims

         Before bringing a federal habeas petition, a petitioner must exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires a petitioner to present, or do his best to present, the substance of a federal habeas claim “fairly and recognizably” to the state's highest tribunal before seeking federal review. Janosky v. St. Amand, 594 F.3d 39, 50 (1st Cir. 2010); Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir. 1997) (“Exhaustion obligations mandate that a habeas petitioner present, or do his best to present, his federal claim to the state's highest tribunal.”). Under the doctrine of procedural default, if the state court declines to hear those presented claims because the prisoner failed to abide by a state procedural rule, the federal court will not review the merits of claims, including constitutional claims. Martinez v. Ryan, 566 U.S. 1, 9 (2012).

         In Massachusetts, a defendant has two avenues to present his claims for relief: direct appellate review and collateral appellate review. For direct appellate review, a defendant must file a timely notice of appeal, Mass. R. App. P. 4, and, if the appeal is unsuccessful, an application for leave to obtain further review of the case by the Massachusetts Supreme Judicial Court (the “SJC”). Mass. R. App. P. 27.1. Separately, if a defendant files a motion for a new trial under Mass. R. Crim. P. Rule 30, appellate review of the trial judge's order on that motion must be sought by filing a petition for discretionary review by a single justice under Mass. Gen. L. ch. 278, § 33E. Where a claim is not raised on direct appeal and the single justice finds that the claim or claims raised on collateral review are neither new nor substantial, the denial of a petition under Mass. Gen. Laws ch. 278 § 33E constitutes a procedural bar to federal habeas review. See Costa v. Hall, 673 F.3d 16, 24 n.5 (1st Cir. 2012); Mendes v. Brady, 656 F.3d 126, 128 (1st Cir. 2011); Yeboah-Sefah v. Ficco, 556 F.3d 53, 75 (1st Cir. 2009).

         Petitioner's first six claims for habeas relief were not presented on direct review. In his Mass. R. Crim. P. 30 motion for new trial, he raised four of these claims: (1) “[t]he prosecutor made improper comments in her closing arguments, and appellate counsel was ineffective for failing to raise it on direct appeal, ” (2) “[t]he evidence was insufficient to warrant a conviction of extreme atrocity or cruelty and premediated murder, ” (3) “[t]he [trial] judge gave errant supplemental instructions on extreme atrocity and cruelty, ” and (4) “[w]here there was evidence of consciousness of guilt, and trial counsel requested the charge, it was error for the judge not to give the instruction.” Supplemental Answer 276 [“S.A.”] [#26]. After his motion for new trial was denied, Petitioner filed an application for discretionary review by a single justice under Mass. Gen. L. ch. 278 § 33E. Id. at 233. Petitioner sought to appeal the denial of the four claims set forth in his underlying motion for new trial and raised two additional claims: (5) “the trial judge erred in his supplemental charge to the jury on premeditation and second degree murder, ” id. at 263, and (6) “during jury impanelment, the judge excluded two potential jurors discriminately without a group-neutral reason, ” id. at 267. A single justice of the SJC denied Petitioner's application, concluding that none of the six claims presented a “new and substantial question.” Id. at 294. Accordingly, these six claims are procedurally defaulted. See Lee v. Corsini, 777 F.3d 46, 58 (1st Cir. 2015).

         The analysis does not end there. A habeas petitioner may overcome procedural default by showing cause for the default and prejudice resulting therefrom.[1] Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish cause, a petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); Lee, 777 F.3d at 59 (stating that ineffective assistance of counsel may constitute cause for default). A petitioner must also show “actual prejudice resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982) (internal quotation marks omitted).

         In his objections to the Report and Recommendation, Petitioner asserts that he has shown cause for the default, because “he clearly raised that his appellate counsel was ineffective for failing to raise the six claims on direct appeal.” Obj. to R&R 1 [#61]. “[C]onstitutionally ineffective assistance of counsel, at trial or on direct appeal, in failing to preserve a claim for review may constitute cause for default.” Lee, 777 F.3d at 59. However, to show cause for procedural default based on ineffective assistance of counsel, Petitioner must first show that his claims for ...


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