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McCowen v. Mendosa

United States District Court, D. Massachusetts

May 18, 2018



          F. Dennis Saylor IV United States District Judge.

         This is 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.[1]

         In 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 granted.

         I. Background

         A. The Criminal Conviction

         On 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.

         McCowen 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).

         B. The First Three Motions for New Trial

         McCowen filed three post-conviction motions for a new trial with the state court before filing the present petition.[2] The first motion for a new trial alleged juror misconduct, and was denied by the trial court on April 4, 2008. (S.A. 42).[3] 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 34).

         C. The Habeas Petition

         On 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).

         The 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).

         The 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 exhausted.

         The 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.”

         The 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).

         According 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 ...

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