United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (DKT. NO.
L. CABELL, U.S.M.J.
Payne (“the petitioner” or “Payne”)
is currently incarcerated at the Massachusetts Correctional
Institute at Shirley following his conviction in the Suffolk
County Superior Court for second degree murder among other
offenses. Payne admits that he fatally shot the husband of a
woman with whom he was romantically involved, but argues that
the shooting was provoked and occurred in the midst of
“sudden combat, ” and thus amounted at most to
manslaughter rather than murder. In fact, the jury was
instructed that it could find Payne guilty of manslaughter if
it agreed the shooting occurred in the midst of sudden
combat, and could also for that matter acquit Payne if it
concluded he acted in self-defense. The jury necessarily
rejected these theories in deciding that Payne acted with
malice and committed second degree murder.
this backdrop, Payne asserts that he is actually innocent of
second degree murder but he does not argue sufficiency of the
evidence. Rather, he argues that because there was evidence
which if credited would have supported a finding that he at
most committed manslaughter, he was entitled under
established state court precedent to have the murder charge
removed from the jury's consideration, and to have the
charge reduced to manslaughter. Payne did not seek this
relief at trial but he did move post-conviction for a reduced
verdict to manslaughter. Having failed to obtain the desired
relief in the state courts, Payne now seeks a writ of habeas
vacating his murder conviction and reducing it to one for
manslaughter. As discussed below, I find that his claim is
not cognizable on habeas review because it alleges only an
error of state law. Even if cognizable, I find the claim to
be without merit. I recommend therefore that the petition for
habeas relief be denied.
The Underlying Crime
neither the Supreme Judicial Court (“SJC”) nor
the Massachusetts Appeals Court made detailed findings of
fact, the facts as the jury might have found them are taken
from the trial transcript. See Jean-Baptiste v.
Thompson, No. 14-cv-11698, 2017 WL 1014995, at *1 (D.
Mass. March 15, 2017).
owned and operated Jubilee Auto Services, a gas station and
car dealership located on River Street between Mattapan and
Hyde Park (in Boston). (Trial Transcript, Dkt. No. 22, Exs.
A-O, [hereinafter Tr.: }, Vol. VIII, page 22). Payne owned
two unlicensed firearms, including a .45 caliber revolver and
a .38 caliber revolver. (Tr. IX: 122-123).
spring of 2005, Melissa Vaughn (“Vaughn”) was
referred to Payne's dealership when she began having car
trouble. (Tr. VIII: 22; Tr. IX: 125). Payne sold Vaughn a
minivan and later replaced it with another vehicle when the
minivan broke down. (Tr. VIII: 27-31; Tr. IX: 126-29). Their
relationship progressed over time and became sexual by the
end of 2005. (Tr. VIII: 41, 43). At the same time, however,
Vaughn was married to but separated from a man named Ismael
DelValle (“DelValle”), and DelValle was eager to
revive their relationship. (Tr. VIII: 13-14, 153, 183).
evening of February 10, 2006, Vaughn went with her children
to her parents' home on Hollingsworth Street. (Tr. VIII:
70). DelValle showed unexpectedly. (Tr. VIII: 71). DelValle
took two of Vaughn's children to a local drugstore and
bought a box of chocolates and a large teddy bear. (Tr. VI:
101, 165; Tr. VIII: 72). He tried to give them to Vaughn when
he returned but she refused to accept the bear because one of
her children was allergic to the fur. (Tr. VI: 115, 140-41,
168-69; Tr. VIII: 75-76). DelValle and Vaughn began to argue
and Payne happened to call her in the midst of it. Payne
heard what he assumed was Vaughn's mother yelling at
Vaughn to get off the phone. Vaughn said that she could not
talk then and hung up. (Tr. VI: 116-17, 141-42, 169, 258; Tr.
VIII: 76-77, 191). The phone rang again but DelValle took it
from Vaughn and slammed it closed. (Tr. VI: 120-21). DelValle
appeared as though he was going to throw the phone at Vaughn
but Vaughn's mother intervened and persuaded DelValle to
leave. (Tr. VI: 237-39).
same evening, Payne was planning to attend a concert with his
wife, with whom he had an on and off relationship. (Tr. IX:
134, 159). When he learned his wife was not yet ready, he
decided on the spur of the moment to go see Vaughn to give
her some money for a trip to a casino. (Tr. IX: 162-63). Upon
arriving at Vaughn's parents' home, Payne went into a
vacant lot to urinate. (Tr. IX: 172). Payne heard loud
footsteps coming towards him and when they stopped he turned
around and saw DelValle looking into Payne's car. (Tr.
IX: 181-82). DelValle tried to open the driver's door and
looked through the windshield. (Tr. IX: 182-83). According to
Payne, when DelValle saw Payne, he let out a “rebel
yell” and ran at Payne. (Tr. IX: 185). DelValle's
arm was raised and he had something shiny in the upraised
hand. (Tr. IX: 184-85). Payne yelled “No, no, not
tonight, not tonight” and then pulled his .38 revolver
out from his pocket and shot twice at the shiny object. (Tr.
IX: 185, 188). The shots hit DelValle but he continued to
approach Payne, and hit Payne with his left hand. (Tr. IX:
189). Payne at some point became aware that he was lying on
his back, on the ground, with DelValle straddling him. (Tr.
IX: 191-93). Payne also apparently at some point had fired a
third shot at DelValle. (Tr. IX: 192). Payne pushed DelValle
off of him and returned to his car and drove away. (Tr. IX:
193-94). Payne subsequently hid the firearm in a leaf bag and
returned to his home in Weymouth that evening. (Tr. IX: 196,
199, 274). DelValle died as a result of the shooting. (Tr.
following day Payne drove to the Logan Airport area and then
later that day to Lynchburg, Virginia. (Tr. IX: 75, 201-03,
278). While en route there, Payne was contacted by a Boston
police officer and lied that he was still in the Boston area.
(Tr. VII: 72-73, 188).
State Court Proceedings
5, 2006, the grand jury returned an indictment charging the
petitioner with first-degree murder, the illegal carrying of
a firearm, and unlawful possession of ammunition. (S.A.
00027). The trial began on June 13, 2007. The defense
acknowledged that Payne fatally shot DelValle but presented
evidence suggesting that Payne was provoked and acted without
other things, the jury heard that Payne was in poor physical
condition, that he was fifty nine years old, weighed over 270
pounds, and suffered from diabetes, which caused frequent
urination, eye blurriness, dry mouth and edema, and also made
it difficult for Payne to run. (Tr. IX: 117). The jury also
heard that DelValle was upset over Payne and Vaughn's
relationship and had previously committed acts of violence
against each of them as a result. In one instance in December
2005, DelValle chased and assaulted Vaughn over a bill that
Payne had paid for Vaughn. (Tr. VIII: 33, 132, 163-65). On
another occasion in January 2006, DelValle actually knocked
Payne unconscious after Payne came to Vaughn's residence
to fix a windshield wiper on her car, and then called Payne a
few days later and told him that the next time he would
“kick [his] head in.” (Tr. VIII: 56; Tr. IX:
147-153). With respect to the fatal shooting itself, Payne
testified that when DelValle approached him with something
shiny in ...