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Payne v. Ryan

United States District Court, D. Massachusetts

February 6, 2018

HOWARD PAYNE, Petitioner,
v.
KELLY RYAN, Respondent.

          REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (DKT. NO. 1)

          DONALD L. CABELL, U.S.M.J.

         I. INTRODUCTION

         Howard 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.

         Against 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.

         II. RELEVANT FACTS

         A. The Underlying Crime

         As 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).

         Payne 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).

         In the 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).

         On the 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).

         On that 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. VII: 32).

         On the 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).

         B. State Court Proceedings

         The Trial

         On May 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 premeditation.

         Among 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 ...


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