United States District Court, D. Massachusetts
TALWANI UNITED STATES DISTRICT JUDGE
considering the Magistrate Judge's August 28, 2017,
Report and Recommendation [#40], and noting that
there has been no objection, the court hereby ACCEPTS and
ADOPTS the Report and Recommendation [#40] for the
reasons set forth therein. Petitioner Ronald Blake's
Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus [#1] is DENIED.
STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No.
L. CABELL, U.S.M.J.
Blake (“Blake” or “the petitioner”)
is currently incarcerated at the Massachusetts Correctional
Institution in Norfolk following his 2007 state court
conviction for armed assault with intent to murder, armed
robbery, assault and battery, and assault and battery with a
dangerous weapon. He seeks habeas relief under 28 U.S.C.
§ 2254, on two grounds. He argues first that the trial
court erred in refusing to suppress evidence of an
impermissibly suggestive identification procedure. He argues
also that his trial counsel provided ineffective assistance
by failing to adequately investigate or challenge the
prosecution's timeline of events. (Dkt. No. 1). After
careful consideration of the records, it is recommended that
the Petition for Writ of Habeas Corpus be DENIED.
The Underlying Crime
summarized by the Massachusetts Appeals Court, the jury could
have found the following facts:
The convictions in these cases arose from the beating and
robbery at knife point of Gregory Kendrick in the early
morning hours of June 3, 2006. Kendrick was employed as a cab
driver by Bluebird Cab Company located in New Bedford. Based
on the evidence presented at trial, the jury could have found
that Kendrick picked up the defendants just before 5:00 A.M.
and drove them to Reynolds Street in New Bedford. Kendrick
estimated that the ride took between seven and eight minutes.
Upon arriving at the Reynolds Street address, the defendants
robbed Kendrick and then drove the cab to Sullivan Drive in
Westport where they left Kendrick on the side of the road,
bleeding from a stab wound to the arm. Kendrick managed to
seek assistance at a nearby fire station and was transported
to [St. Luke's hospital in New Bedford]. Meanwhile, a
security camera at the Fall River Pier recorded the arrival
of Kendrick's cab containing two men at 5:11 A.M. and
their departure on foot several minutes after, wearing
clothing similar to the defendants' at the time of
arrest. The cab was later found parked behind the Water
Street Café, at 36 Water Street in Fall River.
Commonwealth v. Gomes, Nos. 10-P-2235, 12-P-767,
2014 WL 470361, at *1 (Mass. App. Ct. February 7, 2014).
The State Court Proceedings
14, 2006, the grand jury indicted Blake and a co-defendant,
Jorge Gomes, on charges of: (1) armed assault with intent to
murder; (2) armed robbery; (3) assault and battery; (4)
assault and battery with a dangerous weapon; and (5)
kidnapping. (Dkt. 15, Volume I, S.A. 4; hereinafter [S.A.
24, 2007, the petitioner moved to suppress an out-of-court
identification that was based on a single photograph. (S.A.
5, 78-84). The relevant facts as found by the trial court on
this issue (and as subsequently implicitly adopted by the
Appeals Court (S.A. 127)) are as follows:
After leaving the scene, [Westport Police Seargent] Sullivan
accompanied by Westport Police Sergeant Cestidio
(“Cestidio”), proceeded to St. Luke's
Hospital in New Bedford and spoke to the victim. He was in
contact and alert. He confirmed the description of the
assailants as one dark skinned and one light skinned. The
officers then went to the Bluebird Cab Company and determined
that the victim's last pick up was at 103 Ruth Street in
New Bedford. They then proceeded to Ruth Street. Before they
entered 103 Ruth Street, an unknown older woman on the
sidewalk told them that they should check the third floor.
The identity of this person was not subsequently determined.
103 Ruth Street was a three story residential building with
an apartment on each floor and a common entry way. The
officers entered the building and walked up to the third
floor landing, knocked on apartment 3 and a female opened the
door. The female, who identified herself as “Paula,
” was later identified as Paula Calisto. She said she
was the tenant of the apartment.
The officers asked Paula if there was anyone else in the
apartment, to which she answered, “No one.”
Cestidio asked her what was behind a closed door he could see
from the entry way. She said she had a friend inside. The
officers asked if she minded if they could check, and she
replied, “Not at all.” Upon the door being
opened, the officers found the defendants sleeping on a large
bed. They were dressed. The officers woke up the defendants,
but it took them about 10 minutes to rouse themselves
effectively from sleep.
The defendants and their clothing matched the general
description Sullivan had been given of the assailants.
After the defendants pulled themselves together, the officers
spoke with them separately for about 15-20 minutes. Cestidio
spoke with Gomes and Sullivan spoke with Blake.
Asked what he had done the prior night, Blake said that they
had gone to a couple of friends' houses. Asked by
Sullivan whether they had taken a cab, Blake answered
No Miranda warnings were given, Sullivan stated, because the
defendants at that point ...