Durand v. Goguen

          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 ...