United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO
Dennis Saylor IV United States District Judge.
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner Christopher McCowen is an inmate at
Souza-Baranowski Correctional Center (“SBCC”) in
Shirley, Massachusetts; defendant Anthony Mendosa is the
warden at SBCC.
2012, the Court stayed the petition in order to permit
McCowen to pursue an unexhausted claim that his counsel had
provided ineffective assistance due to his failure to make a
hearsay objection during the trial. That stay has been in
place for nearly five and one-half years, during which
McCowen has done almost nothing to present that claim to the
state courts. Because the continuation of the stay is not in
the interests of justice, the motion to lift the stay will be
The Criminal Conviction
January 6, 2002, a woman named Christa Worthington was found
murdered in her home in Truro, Massachusetts. Christopher
McCowen was indicted for her murder in 2005. On November 16,
2006, a jury found McCowen guilty of (1) murder in the first
degree based upon theories of extreme atrocity or cruelty and
felony murder, (2) aggravated rape, and (3) aggravated
burglary. He was sentenced to life imprisonment without the
possibility of parole on the murder conviction and concurrent
natural life sentences on the other two convictions.
appealed directly to the Supreme Judicial Court, which
affirmed the convictions in a lengthy and detailed opinion.
See Commonwealth v. McCowen, 458 Mass. 461 (2010).
The First Three Motions for New Trial
filed three post-conviction motions for a new trial with the
state court before filing the present petition. The first motion
for a new trial alleged juror misconduct, and was denied by
the trial court on April 4, 2008. (S.A. 42). The second
alleged the discovery of new exculpatory evidence, and was
denied by the trial court on June 9, 2009. (S.A. 43-44). The
SJC affirmed the denial of the first two motions for a new
trial when it upheld the conviction on December 10, 2010.
McCowen, 458 Mass. at 498. In the meantime, on
October 5, 2010, McCowen had filed a third motion for a new
trial, alleging false testimony by the medical examiner as to
his credentials. (Resp't's Mot. to Lift Stay, Docket
No. 44, Ex. 2 at 32). That motion was eventually denied by
the trial court on April 29, 2014. (Id. Ex. 2 at
The Habeas Petition
December 9, 2011, McCowen filed the present petition for a
writ of habeas corpus. Although he was represented
by counsel at the trial and has been represented by counsel
for the last five years, he filed the petition pro
se. The petition asserts two claims: grand jury bias and
ineffective assistance of counsel. (Pet. at 6-9).
first ground asserts that the indictment should have been
dismissed because one of the grand jurors knew the victim and
the victim's family. According to the petition, a judge
questioned the grand juror outside the presence of McCowen
and his lawyer, and then denied a motion to dismiss the
indictment. It does not explicitly allege a constitutional
violation, but appears to allege that McCowen had a
constitutional right to be present during the hearing and to
ask questions of the grand juror. (Pet. at 6).
claim of grand jury bias was raised in McCowen's appeal
to the SJC. See McCowen, 458 Mass. at 472-74.
Although there is some doubt as to whether that issue was
presented to the SJC as a federal constitutional question,
the Commonwealth does not dispute that the claim has been
second ground asserts ineffective assistance of counsel in
violation of McCowen's Sixth Amendment rights.
Specifically, it asserts that counsel failed to object
“to the admission of testimonial hearsay” and
“relie[d] on that erroneously admitted hearsay to
challenge the prosecution[']s theory of the case as to
the time of death, the reliability of defendant[']s
confession, and ultimately defendant's guilt.”
(Pet. at 8). As “supporting facts, ” the petition
states that “[t]he Massachusetts Supreme Court's
decision affirming the convictions and the trial judge's
denial of motions for a new trial under ‘plain
error' was based on error that the defense counsel failed
to object to at trial.”
claim of ineffective assistance of counsel appears to be
based on counsel's failure to object to the admission of
the testimony of Dr. Henry Nields. See McCowen, 458
Mass. at 480. The autopsy of the victim had been conducted by
Dr. James Weiner, who was unable to testify at the trial due
to illness; instead, Dr. Nields testified, although his
“knowledge of the case derived solely from his review
of the reports, notes, and charts prepared by Dr.
Weiner.” (Id.). Among other things, Dr. Nields
testified as to the time of death of the victim.
(Id.). The SJC found that it was error “to
permit Dr. Nields to testify to what Dr. Weiner saw, found,
and opined.” (Id.). However, defense counsel
had failed to object, and therefore the SJC reviewed the
matter only to consider whether the admission of the
testimony “resulted in a substantial likelihood of a
miscarriage of justice.” (Id. at 481). The SJC
declined to reverse on that basis. Among other things, it
noted that Dr. Nields's conclusion as to the time of
death “favored the defendant, ” and that defense
counsel relied on the fact that in his closing argument.
(Id. at 481-82).
to the petition, McCowen did not exhaust his state remedies
on Ground Two for the following reasons:
McCowen is illiterate. Now, he reads and write at a grade
six [level]. He still unable to comprehend the rights and
privileges that someone with the knowledge would otherwise
have. Besides his trial lawyer did his direct ...