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Borgos v. Roden

United States District Court, D. Massachusetts

April 20, 2017

GARY RODEN, Respondent.


          Indira Talwani United States District Judge.

         Petitioner 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.

         I. Facts

         Petitioner 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.[1] Jolky's twin brother, Osvaldo Mercado Matos, known as Valdo, [2] and his girl friend, [3] lived across the hall from Jolky. Yanelly Lorenzi[4] 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 increasingly intoxicated.
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 its alarm.
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 pelvic bone.
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[5] 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.[6]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.[7] 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 (Mass. 2012).

         II. Procedural Background

         Petitioner 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.

         A jury 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].

         III. Legal Standard

         When a 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 ...

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