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Palmisano v. Vidal

United States District Court, D. Massachusetts

June 23, 2017

OSVALDO VIDAL, Respondent.


          Indira Talwani United States District Judge.

         I. Introduction

         Petitioner Joseph Palmisano petitioned for a writ of habeas corpus claiming ineffective assistance of trial counsel. [#1]. The Magistrate Judge to whom the petition was referred heard argument, received briefing, and has filed her Report and Recommendation [#40] [attached] recommending denial of the petition. Petitioner has lodged an Objection [#41].

         This court reviews “specific written objections to the proposed findings and recommendations” de novo. Fed.R.Civ.P. 72(b)(2), (3) (emphasis added). As Petitioner has not objected to the general factual background or legal framework of this case, this order incorporates those portions of the Report and refers to the underlying facts or governing law only as necessary to resolve Petitioner's objections.

         II. Objections Regarding Trial Counsel's Alleged Deficiency

         Petitioner's first specific objection aims at the conclusion that it was unnecessary for his trial counsel to call a defense expert because cross-examination of the Commonwealth's expert weakened any argument that the knife found on Petitioner was indeed the murder weapon. Petitioner points to differences between the Commonwealth's expert's testimony and the defense expert's proffered testimony, namely that the Commonwealth's expert concluded that any of the three knives found in the investigation-including the knife found on Petitioner-could (or could not) have been the murder weapon, whereas the defense expert would have testified that none of the knives could have been the murder weapon. The court agrees there is a distinction between these opinions, but disagrees that the distinction is of sufficient import. As the Magistrate Judge concluded, cross-examination of the Commonwealth's expert “weakened, if not eliminated, any argument that the weapon found in [Petitioner's] bag was the murder weapon beyond a reasonable doubt.” Report [#40] 26 (emphasis added). The Commonwealth's expert thus precluded a jury from finding beyond a reasonable doubt that the knife recovered on Petitioner was the murder weapon. It was therefore unnecessary to call the defense expert for the same beneficial effect. This is particularly so as the Commonwealth's theory did not depend on the knife found on Petitioner being the murder weapon.

         Petitioner next contends the Magistrate Judge erred by finding that trial counsel was at least generally aware of the contents of treatises the Commonwealth intended to use to impeach the defense expert. This objection is bundled with a general re-assertion that defense counsel's decision to not call his expert was unconstitutionally unreasonable in light of his not having read the impeaching treatises and in light of the treatises' arguable consistency with the defense expert's testimony. Two responses are warranted. First, the Commonwealth's (undisputed) indication of its intention to use the treatises to impeach the defense expert would indeed give trial counsel-who was surely aware of his own expert's expected testimony-an idea that the treatises' “general contents” would pertain, as they did, to the issues the defense expert would testify to. In other words, the Commonwealth's intention to impeach an expert on knife wounds with treatises fairly implies those treatises pertain to knife wounds. Second, the state courts found reasonable the decision not to call an expert who would have definitively ruled out additional potential murder weapons found on other potential murderers in the context of the defense's theory that someone else committed the murder. Petitioner's objections as to the reasonableness not to investigate the impeaching force of the treatises thus elides the larger thrust of the state court decisions.

         Petitioner also objects to the above characterization of the defense's theory. Specifically, Petitioner asserts that (i) the defense “never argued that [two other witnesses] might be the killer, ” that (ii) trial counsel never claimed this to be the reason for not calling the defense expert, and that (iii) it would have been “manifestly unreasonable” for trial counsel to assert that the two other witnesses whose knives were recovered could have committed the murder, given their lack of motive. But even on de novo review, none of these objections warrants disturbance of the Magistrate Judge's findings and conclusions. First-as the Magistrate Judge described, and as Petitioner concedes-trial counsel did in fact draw out via cross-examination that the knives found on the other two witnesses could have been the murder weapon. It is reasonable to infer from this tactic an attempt by trial counsel to divert some suspicion from Petitioner to the other witnesses. Moreover, as the Magistrate Judge noted, trial counsel strongly implied in his closing that one of the other witnesses could have been the actual perpetrator. Supplemental Answer Volume III, Tab 7, p. 44. There is therefore little merit to Petitioner's first point given the defense's allusions towards the other witnesses.

         Second, Petitioner appears to assert that review of trial counsel's motivations must be confined to the four corners of the affidavit he submitted in connection with the Petitioner's state-court motion for post-conviction relief. In doing so, Petitioner disputes the Magistrate Judge's reading of the Supreme Court's opinion in Harrington v. Richter, 562 U.S. 86, 790 (2011), the relevant passage of which reads as follows:

Although courts may not indulge in ‘post hoc rationalization' for counsel's decision making that contradicts the available evidence of counsel's actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a ‘strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.'
[. . .]
Strickland . . . calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.

(emphasis added) (internal citations omitted). This passage does not confine consideration of counsel's motivations to only those he confirmed via affidavit to the state court. Instead, the available evidence-including trial transcripts and the record as a whole-may be considered in reviewing the state courts' assessment of trial counsel's objective performance.

         Third, Petitioner's assertion that it would have been unreasonable for trial counsel to affirmatively argue the other witnesses definitely were the murderers mischaracterizes the Magistrate Judge's report. The Magistrate Judge did not conclude that trial counsel's theory of the defense was that one of the other two witnesses definitely committed the crime, but instead that, in light of other suspects and other inculpatory evidence, too much uncertainty attended the Commonwealth's theory to justify a conviction. She cites to the trial counsel's statements and arguments to the effect that poor investigation and a “rush to judgment” led to prosecution of the Petitioner, rather than any affirmative construction of a case against any other particular individual. It was this theory of doubt and uncertainty that would have potentially been undermined by potentially-impeached expert testimony definitively ruling out the possibility that knives found on others could not have inflicted the fatal wound. The state court's conclusions are thus not an unreasonable application of the Strickland standard, but instead consistent with the sometimes-better defense tactic of trying “to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.” Harrington, 562 U.S. at 109.

         Finally, Petitioner objects to the Magistrate Judge's conclusion that trial counsel used the Commonwealth's theory to his advantage. He argues that if the knife found on Petitioner was the murder weapon (as the Commonwealth's expert testified as being possible), the shortness of its blade would have required a thrust resulting in blood spatter on Petitioner's hand, but that no such blood spatter was found. Petitioner contends that the defense expert's testimony would not have weakened this argument. Perhaps the defense expert's testimony may not have weakened this argument (i.e. that the Petitioner's knife was not the murder weapon), but he nonetheless would have also potentially damaged the case by ruling out other potential suspects (consistent with the Commonwealth's theory) and by opening himself to potential impeachment.

         Thus the Magistrate Judge's conclusions regarding the reasonableness of the state court's determination of trial counsel's error are sound and adopted by this court.

         III. Objections Regarding Prejudice to Petitioner

         Petitioner lodges four objections to the Magistrate Judge's conclusion regarding the “prejudice” prong of ineffective assistance claims. The first incorporates and re-lodges the objections referenced above.

         The second objects to the Magistrate Judge's conclusion that the Commonwealth conceded in closing that the knife found on Petitioner was not the murder weapon. While Petitioner is correct the Commonwealth did not explicitly state the knife found on Petitioner was not the weapon, it never said it was the weapon. The Commonwealth instead relied on testimony and evidence, unrelated to the knife found on Petitioner being the weapon, which the Petitioner does not state would have been affected by the proffered defense expert testimony.

         The third and the fourth objections, respectively, contend that an insufficiency of inculpatory evidence and an abundance of exculpatory evidence suffice to prove that, had the defense expert been called, the jury would not have voted to convict. The record certainly indicates a mixture of evidence, but on review the court finds this mixture insufficient to meet Strickland's threshold: taking the case as a whole, it was not unreasonable for the state courts to find a lack of prejudice in the failure to call an expert to rule out a possibility which the Commonwealth did not advance, nor rely upon.

         IV. Conclusion

         In accordance with the foregoing, the Report and Recommendation [#40] is ADOPTED, and the Petition [#1] is DENIED.

         IT IS SO ORDERED.


          DEIN, U.S.M.J.


         The Petitioner, Joseph Palmisano, was convicted by a Middlesex Superior Court jury on February 10, 2011 of second degree murder and assault and battery by means of a dangerous weapon. He is presently serving a life sentence. Following his conviction, Palmisano filed a motion for post-conviction relief alleging ineffective assistance of trial counsel for failure to call an expert witness who was present at trial. The trial judge denied the motion without an evidentiary hearing. The appeal from this ruling was consolidated with Palmisano's direct appeal from his convictions. On May 14, 2014, the Massachusetts Appeals Court affirmed both the Petitioner's convictions and the denial of post-conviction relief. Commonwealth v. Palmisano, 85 Mass.App.Ct. 1119, 7 N.E.3d 1123, 2014 WL 1908632 (May 14, 2014) (table). (SA 208). The Supreme Judicial Court denied further appellate review. In this timely habeas petition, filed pursuant to 28 U.S.C. § 2254, Palmisano asserts that trial counsel's decision not to call the expert witness deprived him of effective assistance of counsel, in violation of his Sixth Amendment rights.

         For the reasons detailed herein, this court finds that the state court decision that there was no ineffective assistance of counsel, and that Palmisano had failed to establish prejudice, were not unreasonable applications of clearly established federal law. Therefore, this court recommends to the District Judge to whom this case is assigned that the petition for writ of habeas corpus be DENIED.



         On March 5, 2009, a grand jury indicted Palmisano on charges of murder, armed assault with intent to commit murder, and assault and battery by means of a dangerous weapon. (SA 1). The charges arose out of a stabbing death that occurred during a melee at a Somerville hotel. The case was tried to a Middlesex Superior Court jury (Whitehead, J.) beginning on January 24, 2011. Palmisano was represented by Attorney James Greenberg. On February 10, 2011, the jury convicted the Petitioner of murder in the second degree and assault and battery by means of a dangerous weapon, acquitting him of the charge of armed assault with intent to commit murder. (SA 3-9). Palmisano was sentenced to life imprisonment on the second-degree murder conviction, and to 4-6 years to run from and after the life sentence on the assault and battery conviction. (SA Ex. N (Sentencing) at 15).

         Represented by new counsel, Attorney Chauncey Wood, [2] Palmisano filed a Motion for Post-Conviction Relief on September 21, 2012, and requested an evidentiary hearing. (SA 14). Therein, Palmisano raised the following claim:

1. Mr. Palmisano was deprived of his constitutional right to the effect- tive assistance of counsel because defense counsel's failure to call Dr. William Stuart as a medical expert to testify that the knife found in his possession could not have caused the fatal injury to the decedent Romeo Murray deprived Mr. Palmisano of an available and substantial ground of defense.

(Id.). The motion was accompanied by affidavits of Attorney Greenberg, Dr. William Stuart and Dr. Elizabeth Laposata, an expert retained by defense counsel following the convictions. (SA 17-32). The motion was amended on or about March 11, 2013 to add a claim that “Counsel's failure to call a medical expert, after promising the jury he would do so, constituted ineffective assistance of counsel.” (SA 34). The Commonwealth opposed the motion, and filed an affidavit of Adrienne C. Lynch, the Assistant District Attorney who tried the case. (SA 174).[3] The trial judge denied the motion without an evidentiary hearing on May 28, 2013, finding that the decision not to call the expert was “the exercise of tactical judgment” and that while “there was something to be gained by calling the defense expert, there was more to be lost.” (SA 170, 172).

         Palmisano's appeal from the denial of his motion for post-conviction relief was consolidated with the direct appeal from his convictions. On May 14, 2014, the Massachusetts Appeals Court issued an unpublished disposition pursuant to Rule 1:28, affirming the convictions and the denial of the motion for post-conviction relief. (SA 208). The Appeals Court also confirmed the trial judge's decision that no evidentiary hearing was necessary. (SA 209). Palmisano's application for further appellate review (SA 211) was denied by the Massachusetts Supreme Judicial Court on July 2, 2014. (SA 13). This timely habeas petition followed.

         The Underlying Crime

         The Appeals Court did not provide much description of the underlying crime. Both parties to this habeas petition have provided descriptions of the events, with citations to the trial transcript. Except as otherwise noted, there are no significant differences between the parties' recitation of facts. Therefore, this court will borrow extensively from the parties' statements, with citations being to the volume and page of the trial transcripts.[4]

         On January 16, 2009, Melissa Ring invited her cousin, petitioner Joseph Palmisano (also known as “JoJo”), her sometime boyfriend James Randall (a stabbing victim), Romeo Murray (the decedent), and several other friends to a party at the LaQuinta Hotel in Somerville. (V:5-7, 10). They arrived sometime in the evening and rented room 506. (V:12). Two nearby rooms, 508 and 516, were also rented for the purpose of holding parties. (IV:60; VIII:11-17). There was a great deal of drinking and some people smoked marijuana. (V:79, 128-29). Everyone became intoxicated. (IV:113).

         At some point Randall invited his friend Andrew Dinisco to the party, which upset Ring because she did not like him. (III:68-71). After Dinisco arrived, Palmisano went up to Randall and told him that Dinisco had to leave. (III:73). Randall and Dinisco then left. (III:74). However, they did not get far, but rather joined the party going on in room 516, where Dinisco knew some of the people. (III:78-80; IV:60). The victim, Romeo Murray, was among those in the room. (III:86).

         Later that night, at 1:52 a.m., Ring called Randall, and Randall told her that he was still in the hotel, in room 516. Ring was not happy at this news. (III:88-90; IV:61; V:27). Minutes later, Palmisano and two other persons went to room 516 and knocked on the door. (III:84). Randall opened the door, at which point Palmisano asked if Randall was “disrespecting his cousin.” (III:84, 90-91). Randall, Murray and Dinisco stepped out into the hall, and there was a “pretty loud” exchange of words. (III:86, 92-93). Nearly everyone from room 516 came out into the hallway. (III:93). A fight then broke out among as many as twenty-five people along the length of the hallway. (III:96-97; IV:67; VI:151, 193; VII:22-23; VIII:18-19).[5] According to Dinisco, he saw Palmisano and two others standing in the open doorway of room 506, and he made his way to the stairwell, went down the stairs and left the hotel. (VI:68, 71-75).

         Randall was in the area of room 516, fighting a group of eight to ten people. (III:97-98). He broke free and ran down to the end of the hallway, where he saw Murray being beaten aggressively by approximately ten people. (III:97-101; IV:69-70). He joined in the fight, during which he felt what he thought was a punch in his back. (III:101-102). He reached behind him, saw blood on his hand, and then realized that he had been stabbed. (III:102, 123-24; IV:70-71). Viewing the evidence in the light most favorable to the Commonwealth, Randall turned and saw a man, with his back turned, heading away from him and the group. (III:104). He “immediately thought it was JoJo” based on his height, weight, hairstyle and coloring, which were “[e]xactly the same” as Palmisano's, as well the man's jeans, which had a distinctive “Ed Hardy” logo that nobody else was wearing. (III:118, 113-16). As a result, Randall concluded that Palmisano had stabbed him. (III:147-48).

         At this point, somebody cried out “[h]e got stabbed” or something similar and the fight broke up. (III:119). As the fight stopped, Randall observed Murray on the ground, wearing only a pair of basketball shorts and socks. (III:119; IV:85). Randall and Murray then walked back towards the elevator, which was across from room 516. (III:124-26). Randall encountered Christopher Flint, an occupant of room 516, and asked him to call 911 because he had been stabbed. (VI:104-107). Flint did so at 2:02 a.m. (IX:138). Immediately thereafter, Flint noticed a man walking towards the elevator wearing a grey sweater; according to Flint he was giving off “a bad vibe.” (VI:114-18). Flint was scared and banged on the door of room 516, where he was eventually let in. (VI:115, 117-18, 155-56). The Commonwealth argued that this unidentified man was Palmisano, which the defense denied. (XI:58-63).

         Luis Rezendes, a friend of Palmisano's was serendipitously staying at the La Quinta in room 508. (VIII:9-10, 16-17). He heard a commotion from inside his room and looked out in the hall, where he saw a fight going on. He did not recognize anyone, and went back into his room. (VIII:16-19). Rezendes testified that he then heard someone yell “JoJo, ” Palmisano's nickname, so he called Palmisano's cell phone, and the call went to voicemail. (VIII:19-21). Palmisano called Rezendes right back. (VIII:21; IX:138). He said Rezendes' name a few times and then the phone was hung up. (VIII:21-22).[6]

         Rezendes then went into the hallway, holding a knife with its blade extended. (VIII:22-23). He saw Palmisano emerge from the crowd looking “distraught” or “agitated.” (VIII:25-26). Rezendes pushed Palmisano into room 506, before returning to his own room, 508. (VIII:28-29). Before going back into his room, however, Rezendes saw a man holding his lower right back, saying “[h]e got me.” (VIII:28-29). When he returned to his own room, Rezendes told his girlfriend to hide his knife under the mattress, which she did. (VIII:28-31).[7]

         Palmisano stayed in room 506 for a brief period of time. (V:34-39, 162-63; VII:24-27). While others did not see anything in his hands, Mallory White testified that Palmisano had a knife in his hand, its blade extended, with what appeared to be blood on its blade. (V:162-63; see VII:53-54). Melissa Ring testified that when Palmisano came into room 506 he had his hands clasped in front of him, and he said “I have to get rid of this.” (V:36-37). Although she did not know what Palmisano was referring to, she held out her hand and said “[g]ive it to me[, ]” to which Palmisano responded “no” “I won't have a female's hand touch this.” (V:36-38).[8] Ring confirmed that Palmisano was wearing the “Ed Hardy” jeans that Randall had identified, along with a shirt that matched his jeans and a hoodie. (V:46-48, 105). Palmisano left the room and did not return. (V:39, 163-64).

         Meanwhile, Randall and Murray pressed the elevator call button and entered the car when it arrived. (III:126). The doors closed, but immediately opened again. (III:135). Randall testified that as the doors opened, Palmisano reached in, extending his right hand forward in a thrusting motion, and stabbed Murray. (III:135-36; IV:93-94).[9] Murray was stabbed once in the chest, perforating his heart, and he later died. (III:135; X:110). Palmisano immediately ran away, and Murray stumbled out of the elevator and knocked on the door of room 516. (III:137). When the door opened, Murray asked for help, moved his hand from his wound so that blood spurted out, and fell to the ground. (VI:158). A few people in room 516 attempted to stop the bleeding, called 911, and helped Murray down to the lobby. (VI:159-61; IX:138). The 911 call was made at 2:05 a.m. (IX:138). At the same time Randall called Ring and told her that Palmisano had stabbed Murray. (III:150; IX:138). There was testimony from Stephen Merullo, one of the occupants from room 516, that while he was helping Murray someone came over to him in the hall and tried to hand him a knife. (See VI:196-99). Merullo did not identify the man, although the Commonwealth argued that it was Palmisano. (See XI:66-67). Palmisano argued that the description of the clothing worn by the man proves it was not him, while the Commonwealth argued that Palmisano was wearing layers of clothing which he removed through the course of the night. (See Pet. Mem. (Docket No. 18) at 7-8 & n.7; XI:70-71). Merullo's testimony, however, was not that clear and he could not identify the man in the hall. (See VI:196-99).

         Rezendes testified that approximately five to ten minutes after he had pushed Palmisano into room 506, Palmisano knocked on the door of Rezendes' room (room 508). (VIII:32-33). When he came into the room, Palmisano was looking “lost” and “confused” and was holding a knife with a black blade in his hand. (VIII:35-36). Palmisano told Rezendes and his girlfriend, Jaclyn Covell, that “he [thought] he did something wrong” and that “he might have poked somebody[, ]” which Rezendes understood to mean that he had stabbed someone. (VIII:35-37, 146-47). Palmisano stated that he needed to clean the knife he was holding, and retreated to the bathroom. (VIII:37-41). Rezendes did not hear any plumbing fixtures being used in the ten minutes ...

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