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Negron v. Gelb

United States District Court, D. Massachusetts

August 24, 2017

JOSE NEGRÓN, Petitioner,
v.
BRUCE GELB, Respondent.

          MEMORANDUM & ORDER

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. Background

         On 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.

         On May 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).

         Petitioner filed a pro se second motion for a new trial and a second state court appeal in 2012.[1] 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.

         II. Standard

         Under 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).

         Furthermore, 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).

         For 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 (2014)).

         In 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).

         When 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.

         III. Discussion

         Petitioner 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].

         A. Ground 1: Erroneous Home Invasion Instruction

         Petitioner 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 following:

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 (Mass. 2010).

         When 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.[2] 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.[3] 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.

         On 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.” Id.

         Petitioner 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.

         However, 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.

         Furthermore, 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 ...


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