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Roby v. Demoura

United States District Court, D. Massachusetts

August 4, 2017

RANDY ROBY, Petitioner,
v.
DOUGLAS DEMOURA, [1] Respondent.

          MEMORANDUM & ORDER

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE.

         Before the court is Petitioner Randy Roby's Petition for a Writ of Habeas Corpus [#1], as amended.

         I. Procedural and Factual Background

         In December 2008, Petitioner was tried in Massachusetts Superior Court for Essex County on five indictments under Mass. Gen. Laws ch. 265, § 22A, i.e. Rape of a Child.[2]Commonwealth v. Roby, 969 N.E.2d 142, 146 (2012) (“Roby I”)[3]; (S.A. 1-19). Three of the indictments charged the offense in connection with a child victim pseudonymously named Nancy, and the other two involved Nancy's half-sister Toria (also pseudonymous). Roby I, at 146. At the close of the Commonwealth's case-in-chief, Petitioner moved for a required finding of not guilty pursuant to Mass. R. Crim. P. 25(a), which permits trial judges to enter findings of not guilty of offenses charged in an indictment “or any part thereof . . . if the evidence is insufficient as a matter of law to sustain a conviction . . . .” Id.

         The trial judge allowed the Rule 25 motion in part. As to Nancy, he determined the Commonwealth proffered insufficient evidence on the element of penetration, and thus reduced those charges to indecent assault and battery on a person under the age of 14, Mass. Gen. Laws ch. 265, § 13B. (S.A. 463-477) (transcript of hearing on Rule 25 motion). As to Toria, he determined the Commonwealth failed on the element of force, and thus reduced those charges to statutory rape, Mass. Gen. Laws. ch. 265, § 23. Id.

         Before submitting the charges to the jury, the trial judge amended the indictments as to Toria-which previously listed “Peabody” as the location of the offenses-by adding the specific locations reflected in Toria's testimony, namely the victim's “living room” and her grandmother's “bedroom” (both of which locations are in Peabody). Roby I, at 147-48. Petitioner renewed his Rule 25 motion after the jury was charged with the amended indictments, arguing that the grand jury did not indict him for an offense in the grandmother's bedroom. Id. The court denied the motion, and the jury returned guilty verdicts on each reduced count, including the amended indictments as to Toria. Id.

         The Supreme Judicial Court reviewed Petitioner's appeal directly. As relevant here, Petitioner argued to the Supreme Judicial Court that (i) “he was convicted of crimes for which he was not indicted” in connection with the trial judge's amendments to the indictments; and (as explained in further detail infra) that the trial judge committed reversible error in connection with evidentiary rulings and a refusal to grant a new trial involving (ii) Toria's cross-examination and (iii) the admission of prejudicial bad act evidence. (S.A. 24-81). On June 4, 2012, the Supreme Judicial Court affirmed the convictions in full. Roby I, at 155.

         On April 8, 2013, Petitioner collaterally attacked his conviction pursuant to Mass. R. Crim. P. 30(a), advancing what in substance amounts to a single argument distinct from those on direct appeal: that the trial judge offended double jeopardy by submitting reduced charges to the jury. (S.A. 337-366). Petitioner also posited that he was afforded constitutionally ineffective counsel at both the trial and appellate level by way of both counsels' refusal to assert this argument. (S.A. 367-369).[4] That same day, the Superior Court denied the motion. (S.A. 18). Petitioner appealed that denial to the Massachusetts Appellate Court. (S.A. 18).

         On June 30, 2014, while that appeal was pending in the state court, Petitioner filed the instant petition, asserting the same three grounds for relief advanced on direct appeal.[5] Pet. For a Writ of Habeas Corpus [#1]. On March 26, 2015, Petitioner filed a motion for this court's review of the 30(a) motion pending before the Massachusetts Appellate Court. Mot. for Review [#30]. This court construed the motion as seeking to amend the habeas petition with the double jeopardy and ineffective assistance claims raised in the 30(a) motion, Order [#37], and subsequently stayed proceedings until exhaustion of the 30(a) claims before the Massachusetts courts. Electronic Order [#44].

         The denial of the 30(a) motion was affirmed by the Massachusetts Appellate Court on July 14, 2015, and denied further appellate review by the Supreme Judicial Court on December 22, 2015. (S.A. 568; 569); Commonwealth v. Roby, 2015 WL 4249188, *1 (Mass. App. Ct. July 14, 2015) (“Roby II”).

         Over the Commonwealth's objection, this court ultimately allowed Roby to amend his petition to include the 30(a) claims, and directed Petitioner to file a memorandum in support of the amended petition. Order [#72]. Petitioner did so, but briefed only his double jeopardy and ineffective assistance claims, i.e. the 30(a) claims later added to the petition, and not the claims raised on direct appeal and in the initial petition (the amendment to indictments as to location, and the evidentiary/new trial rulings). Pet'r.'s Mem. of Law [#77].

         II. Standard of Review

         The court's review of the habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, if a state court has adjudicated a claim on the merits, the federal habeas court must defer to that adjudication unless it (1) “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 (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A federal court must review de novo any federal claim not reviewed by the state court on the merits. See Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010).

         A state court decision is “contrary to” clearly established Federal law if the court applies “a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)); Sleeper v. Spencer, 510 F.3d 32, 37-38 (1st Cir. 2007). A state court decision involves an “unreasonable application” of clearly established Federal law “when the state court correctly identifies the correct legal principle, ‘but (i) applies those principles to the facts of the case in an objectively unreasonable manner; (ii) unreasonably extends clearly established legal principles to a new context where they should not apply; or (iii) unreasonably refuses to extend clearly established legal principles to a new context where they should apply.'” Malone v. Clarke, 536 F.3d 54, 63 (1st Cir. 2008) (quoting Sleeper, 510 F.3d at 38). “[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Under both the “contrary to” and “unreasonable application” prongs, “clearly established Federal law” refers only to “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). If Supreme Court cases “give no clear answer to the question presented, ” a state court's resolution of a constitutional question may not serve as a basis for habeas relief. Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); see also Carey, 549 U.S. at 77 (a lack of holdings from the Supreme Court regarding a topic bars a finding that a state court “unreasonably appli[ed] clearly established Federal Law.”).

         If a state court applied a standard that was contrary to, or an unreasonable application of, clearly established federal law, the federal court must conduct a de novo review of the claim. See Aspen v. Bissonnette, 480 F.3d 571, 576 (1st Cir. 2007). Under that review, the petitioner must demonstrate that he “is in custody in violation of the Constitution or laws or treaties of the United States.” Id. at 576 (quoting 28 U.S.C. § 2254). In other words, “a petitioner must show that his underlying detention is unlawful ...


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