United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
Kyron Gorham, after being convicted of first degree murder,
unsuccessfully pursued post-conviction relief in
Massachusetts state courts. He then filed this petition for a
federal writ of habeas corpus under 28 U.S.C. § 2254.
His custodian, Respondent Osvaldo Vidal, has moved for
judgment on the pleadings. For the reasons set forth below, I
will grant Respondent's motion and dismiss the petition.
habeas review, a federal court presumes state court findings
of fact are correct absent clear and convincing evidence to
the contrary. 28 U.S.C. § 2254(e)(1);
Rashad v. Walsh, 300 F.3d 27, 35
(1st Cir. 2002) (explaining that deference is accorded to
findings of both state trial and state appellate courts).
Notwithstanding some conclusory rhetorical flourishes to the
contrary in his motion to amend his petition, Petitioner does
not in substance challenge the state courts' adjudication
on that basis. The brief account that follows is drawn from
the Supreme Judicial Court's summary of the facts.
See generally Commonwealth v. Gorham, 32 N.E.3d
1267, 1268-69 (Mass. 2015).
was one of approximately a dozen guests at a party hosted by
Kayla Aguiar at her home in Fall River, Massachusetts. Those
at the party were drinking alcohol; it is unclear whether
there was also drug use. The evidence presented at trial did
not show that Petitioner was intoxicated. After Petitioner
temporarily left the party to buy more alcohol for the event,
two young women began arguing and eventually engaged in a
fight regarding a man named Shakeem Davis, who was not
present. The fight was eventually broken up, and one of the
women, Kayla Joseph, called Davis for a ride to leave the
party. Davis met Joseph at the party and drove with her to an
apartment on Amity Street.
returned to the party and was disappointed to find that the
dispute had spoiled the mood. He called Davis and another
argument ensued. Upset and offended after his conversation
with Davis, Petitioner drove to a friend's apartment to
pick up a rifle and continued to the Amity Street apartment.
He arrived at the apartment with a friend, and the argument
with Davis continued briefly in person. He then pointed his
rifle at Davis, who was seated on a couch, and fired six
shots. Davis died as a result of multiple gunshot wounds.
Petitioner fled, hiding the weapon in bushes nearby the
was arrested approximately one month after the shooting in
Syracuse, New York, at which time he gave a video-recorded
statement to the police that was shown to the jury. He
admitted to shooting Davis, although he claimed he went to
the apartment intending only to scare the victim. Petitioner
explained that when he pointed the gun at Davis, Davis
grabbed the barrel and initiated a struggle that led to the
accidental firing of the weapon.
was charged with first degree murder. The primary defense
asserted was that the killing was not premeditated because
the gun fired accidentally while Petitioner and Davis fought
for control of the weapon. At the charge conference,
Petitioner requested an instruction regarding voluntary
intoxication, which the court denied. The court also denied
Petitioner's requests for instructions of self-defense,
voluntary manslaughter, and involuntary manslaughter.
Petitioner was found guilty of first degree murder by the
jury and sentenced to life without the possibility of parole.
the assistance of new counsel, Petitioner filed a notice of
appeal from the conviction, a motion for a new trial and a
motion for funds to hire a new investigator. Gorham,
32 N.E.3d at 1268. The grounds offered for a new trial were
newly discovered evidence and ineffective assistance of
counsel. Id. at 1269. The new evidence was in the
form of an affidavit by a partygoer, who stated that
Petitioner was severely intoxicated on the night of the
shooting. Petitioner argued that trial counsel's failure
to locate this witness constituted ineffective assistance.
Petitioner also submitted an affidavit from trial counsel,
who stated that he did not believe the investigator he hired
had spoken to this partygoer before trial, although he had
directed the original investigator “to look into”
possible evidence of Petitioner's intoxication.
Id. The trial court denied the motions.
then moved for reconsideration of the denial of his motions
for a new trial and for funds, offering several more
affidavits in support. Id. at 1271. Of note here, a
private investigator retained by Petitioner's new counsel
stated that he had located two other witnesses who had
attended the party but had not been interviewed by trial
counsel or an investigator before trial. The court denied
reconsideration, and Petitioner's appeal was consolidated
with the direct appeal of his murder conviction in the
Supreme Judicial Court.
Supreme Judicial Court affirmed Petitioner's conviction
and the denial of his post-conviction motions. The court held
that Petitioner had not met his burden on the newly
discovered evidence claim since he could not show that the
information was in fact newly discovered because he did not
provide a full description of the original investigator's
efforts. Id. at 1273. For similar reasons, the court
held that the trial judge “acted well within his
discretion” in denying the claim of ineffective
assistance of counsel. Id. The Supreme Judicial
Court found on the record that trial counsel conducted a
pertinent investigation, and, faced with a less than full
account of the investigator's work, concluded it could
not find that trial counsel's performance was deficient.
This petition for a writ of habeas corpus followed, as in
turn did a motion to amend the petition presenting additional
grounds for relief. The Respondent filed no opposition to the
motion to amend.
bases his present request for relief on a theory of
ineffective assistance of counsel. Strickland v.