United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge.
Luis Alberto Montalvo Borgos (“Petitioner”) is
serving a life sentence for the 2007 murder of Jerome
Woodard. Pet'r Mem. Law Supp. Writ Habeas Corpus Pursuant
28 U.S.C. § 2254 (“Mem. Supp. Pet.”) 2
[#23]. In his petition for a writ of habeas corpus under 28
U.S.C. § 2254, he alleges that the Massachusetts Supreme
Judicial Court (“SJC”) violated clearly
established federal law when it affirmed Petitioner's
conviction. Per Petitioner, his constitutionally protected
due process rights were violated because a photographic array
used to identify him was unreasonably suggestive and caused a
substantial likelihood of misidentification. Id. at
22-23. Petitioner also argues that two witness
identifications were inherently unreliable because the
witnesses each initially selected the wrong person, and one
of the eyewitnesses lied to police, and that the failure to
suppress the unreliable identifications violated his due
process rights. Id. at 19-22. For the following
reasons, Petitioner's Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in
State Custody (“Petition”) [#1] is DENIED.
has not challenged the facts as found by the SJC:
On Friday, May 11, 2007, the victim; his girl friend, Sheena
Castle; and their daughter, who was four years of age, went
to Fall River to visit Castle's mother, Sharon St.
Pierre. St. Pierre lived in an apartment on the second floor
of a three-story apartment building. Jose Mercado Matos,
known as Jolky, and his then girl friend, known as Liz, lived
in an apartment above St. Pierre. Jolky's twin brother,
Osvaldo Mercado Matos, known as Valdo,  and his girl
friend,  lived across the hall from Jolky. Yanelly
Lorenzi and her boy friend, Raymond Cordeiro,
lived in an apartment under St. Pierre. Cordeiro, who had a
heroin “problem” and had previously spent time in
prison for selling drugs, was friends with the third-floor
residents. Jolky and Valdo were known to sell drugs.
After arriving at St. Pierre's home, the victim, Castle,
and their daughter went out to visit a friend. At about 9 or
10 P.M., St. Pierre went to bed. Meanwhile, in the apartment
building next to St. Pierre's, Valdo went to visit
Eduardo Rosario, who lived in a third-floor apartment with
his wife, Vilmarie. At around 10 P.M., the men started
drinking and watched television in the living room. Vilmarie
had gone to bed. As the evening progressed, Valdo became
Sometime after 1 A.M., now May 12, the victim, Castle, and
their daughter returned to St. Pierre's apartment
building. For a while, the couple talked inside the
victim's automobile, which was parked in front of St.
Pierre's apartment. Eventually, the couple got out of the
automobile, and as they did, the victim accidentally set off
Although the victim shut the alarm off within seconds, the
noise agitated Valdo, who began shouting out of Rosario's
third-floor window. Valdo called the victim racist slurs and
said, “I got something for you.” The argument
lasted about fifteen minutes. From a window of her apartment,
Liz tried to stop the argument. Hearing the noise, St. Pierre
telephoned 911, but hung up. The victim, Castle, and their
daughter went inside.
Soon thereafter police arrived at St. Pierre's apartment
to investigate the aborted 911 telephone call. St. Pierre
lied to the officers, telling them that her granddaughter had
made the telephone call while she was “playing with the
phone.” The police left and St. Pierre locked the door.
Within minutes St. Pierre and Castle saw the defendant, who
they subsequently identified in a photographic array, break
through the door, yell at the victim in Spanish, and point a
gun at him. As St. Pierre and Castle fled, they heard
multiple gunshots. The victim died as a result of gunshot
wounds to his torso with perforations to his heart, lung, and
St. Pierre and Castle were not the only persons who had
information concerning the shooting. Just after the police
left St. Pierre's apartment, at around 2:50 A.M., Liz saw
the defendant outside yell up to Valdo, who was still in
Rosario's apartment. Liz testified that she heard
the defendant ask Valdo, who was in Rosario's apartment,
what was going on. Valdo told the defendant that the victim
was “messing” with him. The defendant stated that
he was going to kill the victim. Liz interjected, asking why
the defendant would do that when the victim “didn't
do nothing to him.” The defendant replied that he did
not care. The defendant did not like the victim and found him
to be “disrespectful.” After this exchange, the
defendant went into St. Pierre's apartment building. Liz
heard multiple shots coming from St. Pierre's apartment.
Rosario's account was similar. The defendant yelled up to
Valdo and asked what was going on. Rosario testified that
Valdo replied, “I don't know ... but I will fix it
tomorrow.” Rosario saw the defendant go inside St.
Pierre's apartment building and then heard multiple shots
being fired. Shortly thereafter Rosario saw the defendant
leave the building. The defendant inserted a gun into his
waistband and said in Spanish, “What did I do?”
During this time, Valdo still was with Rosario.The gunshots woke
up Vilmarie to an asthma attack. Valdo left the apartment,
but soon returned to report that he thought that the victim
was dead. Rosario asked Valdo to leave. Rosario tended to
Vilmarie and claimed that he did not hear police knocking on
his door. He subsequently identified the defendant in a
photographic array as the man with the gun that night.
The police later learned about the defendant's
whereabouts prior to the shooting. The defendant had gone out
for the evening with Yanelly, her sister Leisa, and Cordeiro
to a nightclub in Providence, Rhode Island. On the way home,
the defendant received a cellular telephone call and during
the conversation stated, “Nobody mess with my boy,
” and “I'm going to kill him.” The
defendant had a silver gun in his hands. Yanelly told the
defendant, “Think about it, ” and not to kill
anyone. Soon after the group returned to Yanelly and
Cordeiro's apartment, the defendant left. Just after the
defendant left, Yanelly and Leisa heard gunshots in the
apartment above them. Yanelly looked outside and saw the
defendant walk toward a dumpster. She then lost sight of him.
Police recovered seven discharged .22 caliber cartridge
casings and two live projectiles from St. Pierre's
apartment. Two spent .22 caliber rounds were recovered from
the medical examiner's office. The Commonwealth's
firearms identification expert opined that, based on his
examination, all seven of the discharged .22 caliber
cartridge casings recovered were fired from the same unknown
weapon. There was no forensic evidence connecting the
defendant to the shooting.
The defendant did not testify or call any witnesses. The
defense was misidentification. The jury were instructed fully
concerning how to assess the various identifications made.
Commonwealth v. Borgos, 979 N.E.2d 1095, 1097-1100
moved to suppress and exclude from use any and all evidence
seized from the identifications obtained as a result of
unduly suggestive and unconstitutional identification
procedures. Suppl. App. (“S.A.”) 138. Sharon St.
Pierre, Eduardo Rosario, Vilmarie Maldonado, Sheena Castle,
Detective Timothy Albin, and Detective John McDonald
testified at a hearing on the motion. The motion judge denied
Petitioner's motion to suppress as to the out of court
identifications made by St. Pierre, Castle, Rosario and
Maldonado, but granted Petitioner's motion as to Mark
Cleaves. Id. at 161.
convicted Petitioner of first degree murder on the theory of
deliberate premeditation. Borgos, 979 N.E.2d at
1097. Petitioner appealed his conviction and sought review on
the basis of Mass. Gen. Laws ch. 278 § 33E. The SJC
affirmed the conviction, and declined to exercise its
authority under § 33E on December 21, 2012. Id.
Petitioner filed his petition for a writ of habeas corpus
with this court on October 28, 2013. Pet. [#1].
petitioner properly exhausts a claim in state court, this
court must defer to the state court's adjudication unless
it “resulted in a decision contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
States” or “resulted in a decision that was based
on an unreasonable determination of ...