United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
Wayne Miranda filed a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in
State Custody (“Petition”) [#1]. He claims
that his due process rights were violated: (1) when the
prosecutor participated in facilitating cash payments to
eyewitnesses to the shooting, which were contingent upon
reaching specified outcomes during the course of
Petitioner's case; (2) when the Massachusetts Supreme
Judicial Court (“SJC”) affirmed his conviction by
applying new law ex post facto; and (3) when the
prosecutor made statements during his closing argument that
improperly shifted the burden of proof to Petitioner and
relied on alleged evidence outside of the record. For the
reasons that follow, the Petition [#1] is DENIED.
Factual Background and Procedural History
November 18, 2005, a grand jury charged Petitioner with
murder in the first degree, assault and battery with a
dangerous weapon, and unlawful possession of a firearm.
Pet'r Mem. Supp. Pet. Writ Habeas Corpus 1 [#22].
trial, the Government presented theories of principal and
joint venture liability to the jury. Commonwealth v.
Miranda, 934 N.E.2d 222, 224 n.1 (Mass. 2010)
(“Miranda I”). Petitioner asserted a
defense of misidentification. Id. at 227. In support
of that defense, his trial counsel presented expert testimony
and elicited evidence that others may have been responsible
for the shooting and that the police investigation was not
counsel also attacked the credibility of three Government
witnesses, in part by “bringing out the fact that each
received some form of consideration, including monetary
consideration, in exchange for their testimony.”
Id. The jury heard testimony that witnesses John
Andrade and Carmen Rodriguez had each already received $3,
000 from the New Bedford Chamber of Commerce (“Chamber
of Commerce”) pursuant to its reward program for
information leading to an indictment in an unsolved homicide,
and each stood to receive an additional $2, 000 if the
proffered information led to a conviction. Id. at
227-28; Suppl. Answer 1844-45, 1919-21, 2286
(“S.A.”) [#14]. The jury also heard testimony
from the individual in charge of the Chamber of Commerce
program that under that program, a witness would not receive
payment until the Chamber of Commerce received a letter from
the district attorney verifying that the witness had provided
information in connection with a specified, unsolved
homicide, and that the information led to an indictment,
conviction, or both. S.A. 1919-22 [#14]; Miranda I,
934 N.E.2d at 227-28. That individual also testified that the
district attorney provided the required letter for Andrade
and Rodriguez, although the district attorney did not endorse
or otherwise fund the program. S.A. 1921-22 [#14];
Miranda I, 934 N.E.2d at 227-28.
2008, Petitioner was convicted of second-degree murder,
assault and battery with a dangerous weapon, and unlawful
possession of a firearm. Miranda I, 934 N.E.2d at
224. The jury returned a general verdict, and with respect to
the second-degree murder and assault and battery with a
dangerous weapon charges, did not specify whether it found
Petitioner guilty individually or as a joint venturer.
Id. at 224 n.1, 232; S.A. 2496 [#14].
September 2009, the SJC granted Petitioner's application
for direct appellate review. S.A. 43, 56 [#14]. In his merits
brief before that court, Petitioner mentioned in a footnote
the SJC's decision in Commonwealth v. Zanetti,
910 N.E.2d 869 (Mass. 2009), in which the SJC had examined
theories of principal and joint venture liability. The
footnote asserted that “the changes in the law of joint
venture as set forth in . . . Zanetti do not
apply” because his trial occurred in July 2008, S.A. 94
[#14], but did not argue that application of Zanetti
to review Petitioner's case would result in an ex
post facto application of law in violation of
Petitioner's due process rights.
September 2010, the SJC affirmed Petitioner's
convictions. It rejected Petitioner's contentions that
there was insufficient evidence to warrant a finding that he
was the shooter, and thus acted as a principal, and
insufficient evidence of joint venture. Miranda I,
934 N.E.2d at 232-33. The SJC explained that “it d[id]
not matter who shot the victim” because “[t]he
jury reasonably could have inferred the defendant knowingly
participated in the shooting by committing the shooting
himself . . . or by supplying [his co-venturer] with the
means to commit the shooting . . ., with the intent that [his
co-venturer] do so.” Id. at 233 (citing
Zanetti, 910 N.E.2d at 884). It also held that the
evidence permitted a conviction on either theory. Miranda
I, 934 N.E.2d at 233.
the SJC affirmed his convictions, Petitioner requested a
rehearing for review of the SJC's alleged ex post
facto application of law in its decision. S.A. 251-58
[#14]. The SJC denied the request. Id. at 259.
Petitioner then filed a petition for a writ of certiorari in
the United States Supreme Court, which was denied in November
2011. Miranda v. Massachusetts, 132 S.Ct. 548
(2011). Thereafter, Petitioner filed the Petition
September 3, 2014, this court stayed the Petition,
finding that Petitioner had not exhausted his state court
remedies with respect to the alleged ex post facto
application of law claim but that a stay was warranted to
allow him to do so. Mem. & Order 7 [#27]. Petitioner
subsequently filed a Motion for Relief from Unlawful
Restraint in Violation of the United States Constitution
in Bristol County Superior Court, which was denied on June
10, 2015. Pet'r Suppl. Mem. Supp. Pet. 1-2 [#34]. The SJC
affirmed that denial on May 12, 2016. Commonwealth v.
Miranda, 49 N.E.3d 675, 676 (2016) (“Miranda
II”). Petitioner then filed a Notice of
Exhaustion and Request to Include Filings as Part of
Record [#28], and this court lifted the stay on June 13,
2016. Elec. Order [#29].
Legal Standard ...