United States District Court, D. Massachusetts
JOSE A. TORRES, Petitioner,
CAROL HIGGINS O'BRIEN, Commissioner; LISA MITCHELL, Superintendent of Old Colony Correction Center; and MAURA HEALY, Attorney General of the State of Massachusetts, Respondents.
MEMORANDUM AND ORDER RE: PETITIONER'S MOTION FOR
PERMISSION TO FILE TRANSCRIPT OF JURY INSTRUCTIONS IN
COMMONWEALTH V. TASSINARI (DOCKET ENTRY # 48)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.
habeas petition filed under 28 U.S.C. § 2254, petitioner
Jose A. Torres (“petitioner”), an inmate at Old
Colony Correctional Center (“OCCC”) in
Bridgewater, Massachusetts, seeks to expand the record to
include a transcript of jury instructions used in
Commonwealth v. Tassinari, 995 N.E.2d 42 (Mass.
2013). (Docket Entry # 48). During oral argument, respondents
Lisa Mitchell, Superintendent of OCCC, and Maura Healy,
Attorney General of the State of Massachusetts,
(“respondents”) objected to the expansion of the
record to include the transcript. (Docket Entry # 49).
Supreme Court's decision in Cullen v.
Pinholster, 131 S.Ct. 1388, 1398 (2011), “makes
clear that ‘review under § 2254(d)(1) is limited
to the record that was before the state court that
adjudicated the claim on the merits.'” Garuti
v. Roden, 733 F.3d 18, 22 (1st Cir. 2013). “The
same limitation applies to review under §
2254(d)(2).” Stote v. Roden, Civil Action No.
01-CV-12139-IT, 2017 WL 6559759, at *1 (D. Mass. Dec. 22,
2017) (citing Garuti, 733 F.3d at 23). Recognizing
this limitation, petitioner states that he is not
submitting the transcript of the jury instructions in
Tassarini “as new evidence” and it
“is not a document concerning the facts of the
Torres case.” (Docket Entry # 48) (emphasis
added). Rather, he wishes to use the transcript to compare
the instructions in Tassarini to the instructions in
the case at bar in order to argue the distinctions to support
an ineffective of counsel claim in ground four regarding
counsel's failure to object to the manslaughter
instructions. (Docket Entry # 48).
a comparison between the instructions in Tassarini
and the instructions in the case at bar is not necessary to
fully evaluate the ineffective assistance of counsel claim in
ground four. Second, the focus of federal habeas review is
the result rather than the explanation or rationale used by
the Massachusetts Supreme Judicial Court (“SJC”)
to reject the ineffective assistance of counsel claim.
See DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir.
2001) (when “state court has addressed the federal
constitutional issue, it is its ultimate outcome, and not its
rationalization, which is the focus”); Buckman v.
Roden, Civil Action No. 13-CV-11413-IT, 2015 WL 1206348,
at *3 (D. Mass. Mar. 17, 2015).
the SJC in Torres cited the Tassarini
decision for the principle that an attorney's failure to
object to a manslaughter instruction that was nearly verbatim
to the Massachusetts model instruction was not ineffective
performance. Commonwealth v. Torres, 14 N.E.3d 253,
263-64 (Mass. 2014). The relevant portion of the opinion,
which depicts the reasoning and the rejection of the claim,
reads as follows:
the judge's instruction on manslaughter was the model
instruction. Counsel's failure to object to the
instruction was not ineffective assistance of counsel.
See Commonwealth v. Tassinari, 466 Mass. 340,
356-357, 995 N.E.2d 42 (2013) (manslaughter charge nearly
verbatim to model instruction-no error). Taken as a whole, we
think the jury understood that a verdict of guilty of murder
in the first degree required proof beyond a reasonable doubt
of the absence of reasonable provocation and the heat of
passion, and that there was no error as in Commonwealth
v. Acevedo, 427 Mass. 714, 717, 695 N.E.2d 1065 (1998).
Commonwealth v. Torres, 14 N.E.3d at 263-64.
Overall, the inclusion of the transcript in the record would
not materially advance petitioner's ineffective
assistance of counsel argument. Moreover, because the focus
is on the result, namely, the rejection of the ineffective
assistance of counsel claim, consideration of the
Tassarini instructions is neither necessary nor
warranted. For these reasons and those set out by respondents
during oral argument, the motion lacks merit.
accordance with the foregoing discussion, the motion for
permission to file the transcript of the instructions (Docket
Entry # 48) is DENIED.
 As previously explained, Carol Higgins
O'Brien is not a proper respondent. (Docket Entry ...