United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE
Jose Negrón filed this Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody [#1] (“Petition”) against Respondent
Bruce Gelb, the Superintendent at Souza Baranowski
Correctional Center where Petitioner is incarcerated. For the
reasons set forth below, the Petition is DENIED.
September 28, 2007, a jury found Petitioner guilty on armed
home invasion, in violation of Mass. Gen. Laws ch. 265,
§ 18C, and a number of firearms-related counts. Pet. for
Writ of Habeas Corpus 2 [“Pet.”] [#1]. Petitioner
filed a direct appeal, a motion for a new trial, and an
appeal of the denial of that motion.
22, 2012, the Massachusetts Appeals Court concluded that the
ballistic certificate was improperly admitted in violation of
the Confrontation Clause, contrary to the holding of
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),
and vacated all of Petitioner's convictions except the
armed home invasion conviction. Commonwealth v.
Negrón, No. 08-P- 1807, 2012 WL 1835125, at *3-4
(Mass. App. Ct. May 22, 2012) (Negrón I). The
Supreme Judicial Court denied further appellate review as to
the remaining claim. Commonwealth v. Negrón,
463 Mass. 1103 (2012).
filed a pro se second motion for a new trial and a
second state court appeal in 2012. On March 3, 2014, the
Massachusetts Appeals Court affirmed the denial of
Petitioner's second motion for a new trial.
Commonwealth v. Negrón, No. 13-P-142, 2014 WL
801645, at *1 (Mass. App. Ct. Mar. 3, 2014)
(Negrón II). On April 7, 2014, Petitioner
filed an Application for Leave to Obtain Further Appellate
Review (“ALOFAR”), Not. Manual Filing Resp.'s
Suppl. Ans. [“S.A.”] 903-40 [#10], which the
Supreme Judicial Court (“SJC”) denied on May 5,
2014, id. at 901. On May 20, 2014, Petitioner filed
the pro se Petition for Writ of Habeas Corpus [#1]
now pending in this court.
the Antiterrorism and Effective Death Penalty Act of 1996, a
person in custody pursuant to a state-court judgment may
obtain relief through a petition for a writ of habeas corpus
if his or her confinement violates the United States
Constitution or federal laws or treaties. 28 U.S.C. §
2254(a). A court may not grant an application for a writ of
habeas corpus unless “the applicant has exhausted the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). For such exhaustion, the
petitioner must invoke “one complete round of the
State's established appellate review process, ”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999), and “must have presented both the factual and
legal underpinnings of his claim to the state courts, ”
Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir.
1989), for “each and every claim contained within the
application, ” Adelson v. DiPaola, 131 F.3d
259, 261 (1st Cir. 1997).
when a state court has adjudicated a claim on its merits,
habeas relief shall not be granted unless the state court
decision “was contrary to, or involved an unreasonable
application of, clearly established [f]ederal law, as
determined by the Supreme Court of the United States”
or was “based on an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d).
habeas relief purposes, the phrase “clearly established
[f]ederal law” “refers to the holdings, as
opposed to the dicta, of [the Supreme] Court's decisions
as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000). To
secure habeas relief on the basis of an “unreasonable
application of” Supreme Court precedent, the
state-court decision must not merely be based on an
“erroneous” or “incorrect” legal
interpretation. Id. at 411. Rather, it “must
be ‘so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.'”
Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016)
(quoting White v. Woodall, 134 S.Ct. 1697, 1702
reviewing a habeas claim, all factual determinations made by
the state court are entitled to a presumption of correctness,
rebuttable only by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). Furthermore “a state-court
adjudication of an issue framed in terms of state law is . .
. entitled to deference under section 2254(d)(1) as long as
the state and federal issues are for all practical purposes
synonymous and the state standard is at least as protective
of the defendant's rights as its federal
counterpart.” Foxworth v. St. Amand, 570 F.3d
414, 426 (1st Cir. 2009).
the state court does not decide the case on its merits but
instead rests its decision on an independent and adequate
state law ground, federal courts are foreclosed from granting
habeas relief absent (1) a showing of cause for the
procedural error and prejudice resulting from it or (2) a
showing “that failure to consider the claims will
result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)
(citation omitted). A petitioner can show cause for such
procedural default by showing that the appellate
counsel's assistance was ineffective. Murray v.
Carrier, 477 U.S. 478, 488 (1986). However, to do so,
the petitioner must exhaust the claim for ineffective
assistance of appellate counsel. Id. at 488-89. The
petitioner must also show that the counsel's performance
was ineffective pursuant to the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
Id. at 488. Under Strickland, for a
successful claim of ineffective assistance of counsel, the
petitioner must show that (1) the counsel's
representation “fell below an objective standard of
reasonableness, ” 466 U.S. at 688, and (2) “the
deficient performance prejudiced the defense, ”
id. at 687. A mere showing of the counsel making an
error is insufficient to show cause for a procedural default.
Murray, 477 U.S. at 492.
raises four claims in his Petition for Writ of Habeas
Corpus [#1]: (1) the jury instruction as to the armed
home invasion offense failed to include an element of that
offense; (2) trial counsel's assistance was ineffective;
(3) the Commonwealth's evidence to support the armed home
invasion offense was insufficient; and (4) the courtroom was
closed to his family members. In his accompanying memorandum
of law, Petitioner raises a fifth claim: the trial judge
failed to require the Commonwealth to provide a race-neutral
rationale for its peremptory challenges against two jurors.
Mem. in Supp. of Pet. for Writ of Habeas Corpus
[“Pet'r's Mem.”] 21-26 [#25].
Ground 1: Erroneous Home Invasion Instruction
claims that the trial judge's instruction failed to
include a required element of armed home invasion. To obtain
a conviction for armed home invasion under Mass. Gen. Laws
ch. 265, § 18C, the Commonwealth must prove the
that the defendant (1) “knowingly enter[ed] the
dwelling place of another”; (2) “knowing or
having reason to know that one or more persons are present
within” (or entered without such knowledge but then
remained in the dwelling place after acquiring or having
reason to acquire such knowledge); (3) “while armed
with a dangerous weapon”; and (4) “use[d] force
or threaten[ed] the imminent use of force upon any person
within such dwelling place whether or not injury occur[red],
or intentionally cause[d] any injury to any person within
such dwelling place.”
Commonwealth v. Doucette, 720 N.E.2d 806, 809 (Mass.
1999) (quoting Mass. Gen. Laws ch. 265, § 18C). The
“dangerous weapon” need not be a firearm,
see, e.g., id. At 808, 810 (categorizing knife as a
dangerous weapon), and it need not be operational, so long as
the weapon reasonably appears dangerous to the victim,
Commonwealth v. Mattei, 920 N.E.2d 845, 851 n.12
initially instructing the jury in this case, the trial judge
stated that the Commonwealth had the burden to prove beyond a
reasonable doubt these four elements of the offense, Mass.
Gen. Laws ch. 265, § 18C, and a fifth element:
“that [Petitioner] committed the offense while he was
armed with a firearm.” S.A. 150-51 [#7]. The trial
judge stated further that the “fifth element” was
distinct from the dangerous weapon element. Id. at
154. At sidebar, the prosecutor advised the trial judge that
the addition of this fifth element was erroneous, and the
trial judge corrected her mistake in further instructions to
the jury. Id. at 178-79. In her corrective
instruction, the trial judge told the jury to ignore the last
element, and that the dangerous weapon need not be a firearm.
The judge reiterated that the dangerous weapon was “any
item that is capable of causing serious bodily injury or
death to a person.” Id.
March 3, 2014, in denying Petitioner's appeal of the
denial of his claim in the second motion for a new trial on
the basis of the jury instructions, the Massachusetts Appeals
Court noted that no objection had been raised at trial and
therefore considered “whether [the] error created a
substantial risk of a miscarriage of justice.”
Negrón II, 2014 WL 801645, at *1. The court
concluded that the trial judge “corrected the error and
correctly outlined the four elements of the offense.”
claims that the trial judge's instruction on the home
invasion offense was contrary to Francis v.
Franklin, 471 U.S. 307 (1965). Pet. 6 [#1];
Pet'r's Mem. 21-23 [#25]. In Francis, the
Supreme Court held that a jury instruction “violate[s]
the Due Process Clause if [the instruction] relieve[s] the
State of the burden of persuasion on an element of an
offense.” 471 U.S. at 314 (citing Patterson v. New
York, 432 U.S. 197, 215 (1977)). Petitioner argues that
by excluding the requirement that the Commonwealth show that
the dangerous weapon was a firearm, the judge improperly
relieved the Commonwealth of “[its] burden of
persuasion on an element of an offense.”
Francis, 471 U.S. at 314.
Mass. Gen. Laws ch. 265, § 18C, does not provide that a
“dangerous weapon” must be an operable firearm.
Instead, under state law, the Commonwealth may support the
offense without showing that the “dangerous
weapon” is a firearm. See, e.g., Doucette, 720
N.E.2d at 808, 810. Accordingly, the trial court's
instruction here does not lift the prosecution's burden
of proving an element of the crime.
if Petitioner's argument is that the jury instruction was
confusing, then that argument must also fail. For an
instruction to be unconstitutionally ambiguous, there must be
“a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.”
Boyde v. California, 494 U.S. 370, 380 (1990). The
trial court's instruction was clear: “The
Commonwealth need not have proven [that the dangerous weapon
was a firearm]” because that “was not an element
of the offense.” S.A. Ex. D 154-55 [#7]. This