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Gorham v. Vidal

United States District Court, D. Massachusetts

December 21, 2017

KYRON GORHAM, Petitioner,
v.
OSVALDO VIDAL, Respondent.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. BACKGROUND

         On 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).

         A. Facts

         Petitioner 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.

         Petitioner 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 apartment.

         Petitioner 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.

         B. Procedural History

         Petitioner 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.

         With 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.

         Petitioner 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.

         The 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.[1]

         II. ANALYSIS

         A. Legal Standards

         Petitioner bases his present request for relief on a theory of ineffective assistance of counsel. Strickland v. ...


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