United States District Court, D. Massachusetts
MEMORANDUM & ORDER
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.
Factual Background and Procedural History
objections included no disagreement with the Magistrate
Judge's statement of Factual Background or Procedural
History. See R&R. 1-5 [#44].
Overview of Petitioner's Claims
objections also included no disagreement with the Magistrate
Judge's statement of Overview of Petitioner's Claims.
See R&R 5 [#44].
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.
Procedural Default on First Six Claims
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,
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.
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).
analysis does not end there. A habeas petitioner may overcome
procedural default by showing cause for the default and
prejudice resulting therefrom. 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).
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