United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS
CORPUS (DOC. NO. 1)
Sorokin United States District Judge
Brown, a prisoner at the Massachusetts Correctional
Institution in Norfolk, Massachusetts, has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. He claims his trial counsel was ineffective for
providing incorrect legal advice, causing Brown to reject a
favorable plea offer. Because Brown's claim is
procedurally defaulted (and, in any event, meritless), the
petition is DISMISSED.
25, 2006, a Suffolk County jury convicted Brown of two counts
of first-degree murder and related charges in connection with
the shooting deaths of two victims during a botched armed
robbery. Commonwealth v. Rivera, 981 N.E.2d 171, 176
(Mass. 2013), cert. denied, 570 U.S. 907
(2013); Doc. No. 1 at 1-2; Doc. No. 1-1 at 1; S.A. at
1-2, 12-13. The Supreme Judicial Court
(“SJC”) has extensively recounted “the
facts the jury could have found” at Brown's trial.
Rivera, 981 N.E.2d at 176-79. The following summary
of those facts are relevant for present purposes:
On August 10, 2001, [Brown] and . . . Rivera went to the
[victims'] apartment . . . in the South End section of
Boston. They both arrived at the door wearing dust masks and
carrying firearms. . . . After they forced their way into the
apartment, [Brown] bound the occupant[s'] ankles and
wrists with duct tape. The defendants then searched the
apartment for drugs and money, but did not find what they
were looking for. . . . Rivera shot [one victim] six times in
the head, and shot [the other victim] once in the head. He
also attempted to shoot [a third occupant], but had run out
of ammunition. [Brown] and Rivera then left the apartment.
[The surviving occupant] freed himself from the duct tape, .
. . and telephoned 911.
. . . [Brown's] thumbprint had been found on a piece of
duct tape that had been used to bind one of the victims. . .
. When initially confronted with the fingerprint evidence by
investigating officers, [Brown] admitted to having been
present when the men forced their way into the apartment, and
to having bound the victims with duct tape; he denied having
been in the apartment when [Rivera] shot the
Doc. No. 1-1 at 2-3 (citations and a footnote omitted).
pretrial motion to suppress Brown's statements to police
was unsuccessful. Id. at 3-4. Sometime before trial,
the Commonwealth offered to allow Brown to plead guilty to
second-degree murder, and to recommend a sentence including
parole eligibility after fifteen years, in exchange for Brown
testifying against Rivera. Id. at 4. Brown's
trial counsel-a seasoned criminal defense
attorney-“repeatedly urged [Brown] to accept the plea
arrangement.” Id.; Doc. No. 1-2 at 3-4. He
even enlisted the help of another lawyer, someone with
connections to Brown and his family, “to attempt to
persuade [Brown] to accept what trial counsel viewed as a
‘reasonable' plea arrangement ‘under the
circumstances.'” Doc. No. 1-1 at 4.
trial counsel's consistent and emphatic recommendation,
Brown “asked . . . whether there was a way to
‘beat' the [murder] charges altogether, because he
had not shot anyone.” Id. Trial counsel told
that the only possible defense, given [Brown's] statement
[to police], was to claim that he had withdrawn from the
joint enterprise prior to the shooting. Counsel cautioned,
however, that he viewed the chance of acquittal on this
theory as very slim, warning [Brown] that juries do not like
withdrawal defenses, such a defense was “weak, ”
and the evidence against him was strong.
Id. at 4-5. Against trial counsel's advice,
Brown rejected the plea and “insisted on a
trial.” Id. at 5. “At trial, counsel
vigorously pursued a defense of withdrawal, ” beginning
in his opening statement and continuing through his closing
argument; at his request, the trial judge included a
withdrawal instruction in his closing charge to the jury.
trial counsel had predicted, the defense was unsuccessful,
and Brown was convicted of first-degree murder “on a
theory of joint-venture felony-murder.” Id. He
received a mandatory sentence of life imprisonment without
the possibility of parole. Doc. No. 1 at 1; Mass. Gen. Laws
ch. 265, § 2(a).
filed a timely direct appeal, challenging the admission of a
redacted version of his statement to police and the trial
court's instruction regarding withdrawal from a joint
venture. S.A. at 13, 47-48. The SJC affirmed Brown's
conviction and sentence on January 9, 2013. Rivera,
981 N.E.2d at 171, 176; S.A. at 15, 21. In rejecting
Brown's challenge to the withdrawal instruction, the SJC
reasoned that “the evidence in this case was
insufficient to warrant an instruction on withdrawal, ”
as “there was no evidence to suggest that Brown
communicated to Rivera any intent to withdraw, ” nor
“evidence of an ‘appreciable interval'
between [Brown's] alleged withdrawal and the
murders.” Rivera, 981 N.E.2d at 187-88.
denied rehearing, and the United States Supreme Court denied
certiorari. S.A. at 21. Meanwhile, Brown filed a pro se
motion for a new trial in the Superior Court, challenging
trial counsel's effectiveness in connection with
Brown's rejection of the pretrial plea offer. S.A. at 15,
191, 194. Brown attributed the following statements to trial
counsel: “the murder charges could be beat with a
withdrawal defense, ” and “I advise you not to
accept the Commonwealth's plea offer.” S.A. at 195.
But for this advice, Brown wrote, he would have pled guilty.
S.A. at 207. The motion court appointed counsel to represent
Brown and scheduled an evidentiary hearing. S.A. at 16.
hearing, trial counsel and Brown each testified about their
conversations regarding the plea offer and Brown's
decision to reject it. S.A. at 311-70. Ultimately, the motion
court rejected Brown's claim. See generally Doc.
No. 1-2. The motion court “credit[ed] in its entirety
the testimony of” trial counsel, which it described as
“clear and unequivocal” with respect to
“the strength of the Commonwealth's case, the
negotiations with the prosecutor regarding a possible plea
agreement, and his advice and counsel to the
defendant.” Id. at 3 & n.4. The motion
court also emphasized that Brown had “acknowledged that
his affidavit falsely asserted that [trial counsel] advised
him not to accept the Commonwealth's plea offer”-in
other words, the critical allegation which formed the basis
for the motion court's decision to hold an evidentiary
hearing in the first instance had been a lie. Id. at
sought review of the motion judge's decision, S.A. at 16,
18, but a single justice of the SJC concluded that
Brown's claims were “neither new nor
substantial” and denied his petition for review,
see generally Doc. No. 1-1.
timely federal habeas petition, Brown presents to this Court
his claim that “[t]rial counsel provided ineffective
assistance when he incorrectly advised Mr. Brown that he had
a legally viable withdrawal defense, resulting in Mr.
Brown's rejecting a plea offer.” Doc. No. 1 at 5.
The same attorney appointed to represent ...