United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON PETITIONER'S PETITION FOR
WRIT OF HABEAS CORPUS AND MOTION FOR STAY (DOCKET NOS. 1
& 2)
TIMOTHY S. HILLMAN, DISTRICT JUDGE
Petitioner
Eric Durand (“Durand”) filed a petition for writ
of habeas corpus based on twelve grounds: (1) limitation of
his right to cross-examine the Commonwealth's expert in
violation of his Sixth Amendment rights; (2) the denial of
his motion to suppress statements: (3) the admission of
hearsay testimony by one of the Commonwealth's experts;
(4) the Commonwealth's improper comments during closing
statements; (5) improper admission of Durand's taped
interrogation; and ineffective assistance of counsel based on
(6) failure to move to suppress the video of Durand's
interrogation; (7) failure to hire an expert pediatric
forensic pathologist; (8) failure to hire an expert forensic
dentist; (9) failure to challenge the Commonwealth's
timeline of the alleged events; (10) failure to object to
jury instructions; (11) failure to object to the trial
judge's restriction of cross-examination of the
Commonwealth's medical examiner; (12) and failure to hire
a biomechanical engineer. (Docket No. 1).
Collette
Goguen (“Respondent”) moves to dismiss because
Durand has failed to exhaust eight of the twelve grounds he
raised in his Petition. (Docket No. 11). Although Durand did
not respond to Respondent's motion to dismiss, before
that motion was filed, Durant filed a motion to stay his
Petition and hold it in abeyance. (Docket No. 2).
For the
reasons stated below, Durand's Petitioner (Docket No. 1)
is denied, subject to the
conditions outlined below. In addition, because Durand has
not demonstrated good cause for his unexhausted claims, his
request to stay his Petition (Docket No. 2) is also
denied.
Background
In
2006, Durand was convicted by a jury of first-degree murder
and assault and battery by means of a dangerous weapon, in
connection with the death of a four-year-old child. Because
of errors in that trial, the Massachusetts Supreme Judicial
Court (“SJC”) reversed those convictions and
remanded the case to the Superior Court for a new trial.
Commonwealth v. Durand, 457 Mass. 574, 601 (2010).
On
August 29, 2011, a jury again found Durand guilty of
first-degree murder and assault and battery by means of a
dangerous weapon. The judge sentenced Durand to life in
prison without the possible of parole for the murder
conviction to be served concurrently with a term of two to
four years on the assault and battery conviction. Durand
again appealed his conviction and asserted several errors:
(1) the limitation of his right to cross-examine the medical
examiner; (2) the denial of his motion to suppress
statements; (3) the denial of the motion for a mistrial after
the jury were exposed to inadmissible evidence; (4) the
admission of hearsay testimony by one of the
Commonwealth's expert witnesses; (5) the denial of the
motion for a mistrial related to improper statements made
during closing arguments; (6) the denial of the motion to
dismiss on double jeopardy grounds for prosecutorial
misconduct; and (7) the denial of a requested jury
instruction.
Commonwealth v. Durand, 475 Mass. 657, 658-59
(2016). Although the SJC found the Commonwealth improperly
referenced an inadmissible statement in its closing, that
error did “not require a reduction in [Durand's]
verdict or a new trial” pursuant to Mass. Gen. Laws ch.
278, § 33E. Id. at 674.
On
November 28, 2016, Durand filed a petition for a rehearing in
the SJC, which was denied on January 27, 2017. Durand then
filed a petition for a writ of certiorari in the United
States Supreme Court, which was denied on October 2, 2017. On
September 21, 2018, Durand petitioned for a writ of habeas
corpus in this Court.
Legal
Standard
1.
AEDPA
The
standard of review for habeas corpus petitions is set forth
in 28 U.S.C. § 2254(d), as amended by the AEDPA.
Harrington v. Richter, 562 U.S. 86, 97 (2011). Under
this standard, a federal court may only grant the writ if the
underlying state court adjudication resulted in a decision
that either “(1) ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,'
or (2) ‘was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.'” Brown v. Ruane, 630
F.3d 62, 66-67 (1st Cir. 2009) (quoting 28 U.S.C. §
2254(d)(1)-(2)).
A state
court decision is “contrary to” clearly
established Supreme Court precedent when “it applies a
rule that contradicts the governing law set forth in the
Court's cases or if it confronts a set of facts that are
materially indistinguishable from a decision of this Court
and nevertheless arrives at a different result.”
Price v. Vincent, 538 U.S. 634, 634-35 (2003). A
state court unreasonably applies clearly established Supreme
Court precedent “if it correctly identifies the
governing legal rule but applies that rule unreasonably to
the facts of a particular case.” White v.
Woodall, 134 S.Ct. 1697, 1706 (2014). “Evaluating
whether a rule application was unreasonably requires
considering the rule's specificity. The more general the
rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.” Harrington v.
Richter, 562 U.S. 86, 102 (2011); see also Williams
v. Taylor, 529 U.S. 362, 410 (2000) (“an
unreasonable application of federal law is different
from an incorrect application of federal
law.”). Thus, in order to prevail on a petition for
habeas under 28 U.S.C. § 2254(d)(1), the ...