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Alicea v. Silva

United States District Court, D. Massachusetts

September 26, 2017

JUAN PABLO ALICEA, Petitioner,
v.
STEVEN SILVA, SUPERINTENDENT, SOUZA-BARANOWSKI CORRECTIONAL CENTER, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY HILLMAN DISTRICT JUDGE.

         Background

         Juan Pablo Alicea (“Alicea” or “Petitioner”) has filed a Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (Docket No. 1)(“Petition”) against Steven Silva, Superintendent, Souza-Baranowski Correctional Center (“Respondent”)[1]. Petitioner was convicted in Massachusetts Superior Court of murder in the first degree and assault and battery with a dangerous weapon. He was sentenced to life in prison without the possibility of parole on the first degree murder charge and 8-10 years on the assault and battery with a dangerous weapon charge, to be served consecutively. The Supreme Judicial Court of Massachusetts (“SJC”) affirmed his conviction on April 12, 2013.

         Alicea asserts the following ground for relief in his Petition:

Ground One: His Sixth Amendment Confrontation Right and/or his Fourteenth Amendment Due Process Right were violated when the trial judge refused to let him call a witness, who he maintains was the actual murderer, based on the witness's invocation his Fifth Amendment privilege-the trial judge “secreted” evidence that established that the witness's invocation of the Fifth Amendment privilege was “defective.”

         Alicea has exhausted state-court remedies with respect to the single ground for relief asserted in his Petition. For the following reasons, the Petition is denied.

         Facts[2]

The Underlying Crime

         On the afternoon on May 15, 2002, at about 3 p.m., Larisa Andujar (“Andujar”), who was at the time a heroin user, woke up and injected three bags of heroin. She was with her boyfriend, Hylas Strange III (“Strange”). Strange received a telephone call from Alicea, who was a friend of both he and Andujar. Alicea told Strange that he had figured out that Strange had not stolen a stereo from his sister, and he was no longer upset with him. Alicea, who was located at 833 Main Street in Worcester, invited Strange and Andujar over telling Strange that he was in possession of some heroin.

         That same afternoon, Petra Moreno (“Moreno”) arrived at her apartment on the third floor of 833 Main Street to find signs of a break-in and two men, including Alicea, standing on the third-floor porch. Alicea identified himself as the brother of Moreno's next-door neighbor and told Moreno that someone called “Gucci, ” a nickname by which Strange was known, had broken into the neighbor's apartment and probably had broken into Moreno's apartment. Alicea told Moreno that they were “going to take care of it.”

         After Strange's telephone conversation with Alicea, Andujar's mother drove Andujar and Strange to the corner of Main Street and Allen Street in Worcester. Andujar and Strange walked to the parking lot of 833 Main Street, looked up, and saw Alicea standing on the third-floor porch with another person, Eliezer Herrera (“Herrera”). Alicea motioned for Andujar and Strange to climb the steps. When they reached the second-floor landing, Strange ascended the first two steps to the third floor in front of Andujar, and as Andujar looked down to take her first step, she heard a gunshot and looked up to see Alicea shooting at them. Strange jumped back off the steps, jumped in front of Andujar, pushed her to the side, took two steps, and then fell after another shot. Andujar looked up and saw Alicea smile, then frown, and run out of sight. Strange was lying on the porch, nonresponsive, with his eyes open and blood pooling around his head. Strange sustained a total of four gunshot wounds, including a fatal wound to his head, and a bullet grazed Andujar's right shoulder. Andujar then ran down the steps and up the hill to her mother's vehicle.

         About twenty minutes after Moreno spoke with Alicea on the porch, she heard between three and five gunshots. Moreno ran outside and saw a body on the second-floor porch and then saw Andujar running along Allen Street.

         Witness Claim of Fifth Amendment Privilege.

         At a hearing on the parties' pretrial motions on January 16, 2004, the judge reviewed the Commonwealth's proposed application for a grant of immunity pursuant to Mass.Gen.L. ch. 233, § 20E, for Herrera, a proposed witness, whom Alicea argued was the shooter. The judge concluded that the hearing on the Commonwealth's immunity application could not take place at that time because the prosecutor had not notified the Massachusetts Attorney General or other district attorneys of the application, as required by the statute. The judge decided instead to determine later that day whether the proposed witness had a valid basis for a claim of Fifth Amendment privilege, and to hear the full immunity application at a later point in time, after the Commonwealth had satisfied the notice requirements. During the hearing, counsel for Herrera, citing Commonwealth v. Martin, 423 Mass. 496, 668 N.E.2d 825 (1996), requested that a voir dire of Herrera be conducted in camera to assess his client's claim of privilege. Over defense counsel's objection to an in camera voir dire of “a potentially devastating witness like Mr. ...


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