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Camacho v. Zenk

United States District Court, D. Massachusetts

August 12, 2019

JESSE CAMACHO, Petitioner,
v.
MICHAEL ZENK, Respondent.

          REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

          Judith Gail Dein United States Magistrate Judge

         I. INTRODUCTION

         The petitioner, Jesse Camacho (“Camacho” or the “defendant”), was convicted of first degree murder on theories of deliberate premeditation and extreme atrocity and cruelty (and related charges) in the shooting death of Jeffrey Santiago and wounding of others at King Arthur's Lounge (the “club”) in Chelsea, Massachusetts, in the early morning of January 24, 2008.[1] The identity of the shooter was not at issue. Rather, Camacho's defense was that he acted in defense of others - a theory which the Suffolk County jury rejected. Following his conviction, Camacho sought additional discovery which he claimed had been wrongfully with- held relating to the alleged gang affiliation of the victim and some of his friends, and sought a new trial on the grounds of ineffective assistance of counsel in connection with his lawyer's alleged failure to review relevant evidence and his consequent decision not to recommend that Camacho agree to plead to second degree murder. The trial judge denied the motion for discovery and, after an evidentiary hearing on the issue of ineffective assistance of counsel, at which the prosecutor and defense counsel both testified, denied the (amended) motion for a new trial as well. In a consolidated appeal, the Massachusetts Supreme Judicial Court (“SJC”) affirmed Camacho's conviction and the denial of the post-trial motions. The SJC further declined to exercise its discretion under Mass. Gen. Laws ch. 278, § 33E to reduce the murder verdict to a lesser degree of guilt, or to order a new trial. Commonwealth v. Camacho, 472 Mass. 587, 36 N.E.3d 533 (2015). This timely habeas petition followed.

         In this habeas petition brought pursuant to 28 U.S.C. § 2254, Camacho contends that his rights under the Fifth and Sixth Amendment of the United States Constitution were violated because (1) the trial judge improperly precluded him from introducing evidence related to the violent criminal pasts and alleged gang affiliations of the victim and his companions after the Commonwealth allegedly failed to disclose information that they were all associated with the gang known as the Bloods, and (2) the trial counsel rendered ineffective assistance in advising Camacho to reject a plea to second degree murder without reviewing in a timely manner video discovery the Commonwealth had provided. These issues were exhausted below and rejected by the trial judge and the SJC.

         For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that Camacho's habeas petition be DENIED. The SJC's rulings are not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, nor are they an unreasonable application of or contrary to clearly established law as defined by the United States Supreme Court.

         II. STATEMENT OF FACTS [2]

         The Underlying Crime

         This habeas petition arises out of events that occurred at King Arthur's Lounge in the early morning hours of January 24, 2008. As the SJC described the facts, in the light most favorable to the Commonwealth, [3] on that night the victim, Jeffrey Santiago, went to the club with his friends Toulou Thach and Gabriel Rodriguez, where they met up with Edward Vozzella and Kevin Reis. Camacho, 472 Mass. at 589, 36 N.E.3d at 537. Camacho also went to the club that night with his friend Mario Sunsin, and they met up with Marcelo Miranda and his friends Danny Diaz and another man. Id. The evidence was that Camacho, Sunsin and Miranda were members of the Tiny Rascals Gang (“TRG”). Id. There was also evidence that the victim's friend, Rodriguez, was a member of a rival gang, the Bloods. Id. As discussed below, Camacho contends that the Commonwealth withheld evidence that the victim and his other companions were also Bloods, which the Commonwealth denies. In any event, the jury heard that TRG had had problems with the Bloods in the past, and that “Sunsin and Miranda were familiar with Rodriguez, as Rodriguez and Miranda had previously been in a fight that resulted in Miranda's hospitalization. More recently, Sunsin and Miranda had thrown Rodriguez out of a hotel room, forcing him to walk home in the cold in his underwear.” Id.

         It was undisputed at trial that Rodriguez instigated the melee. As the SJC described the evidence:

On Miranda's arrival at the club earlier that night, he saw Rodriguez and asked him if there was going to be any trouble. Rodriguez replied, “No.” Diaz testified that he had had a confrontation at the door of the club with a man he later identified as the victim. Eventually, the defendant and his group sat down to watch the club's dancers perform, while members of the victim's group congregated by the bar. At this point, the victim wandered toward the club's stage and stood against a wall behind the defendant, conversing with a bouncer and watching the dancers.
Subsequently, the victim's group left the bar area and came over to stand behind the defendant and his group of friends. The victim conversed with his friends for a few moments before moving away from them towards the dancers' entrance to the stage. Meanwhile, Rodriguez sat down next to Miranda, and the two conversed for a few minutes before Rodriguez went back to his group of friends. Miranda told the defendant's group to keep their heads up because “something could happen.” Almost immediately after Rodriguez left the seat next to Miranda, Rodriguez threw a beer bottle at Sunsin's head.[2] Sunsin then tackled Rodriguez, the two men fell to the ground, and some of the victim's group jumped on top of Sunsin and started to hit him.
[2] Mario Sunsin testified that the bottle hit him in the head, but there was conflicting evidence from at least one witness as to whether the bottle actually hit him.
As Sunsin tackled Rodriguez, the defendant jumped up from his seat, took out a firearm, “rack[ed]” it, and started firing at the victim's group. While the victim, Vozzella, and Joseph Upton (a bouncer) were attempting to flee from the gunfire, shots struck them.[3] The victim subsequently fell to the ground. As the defendant chased the fleeing group out of the club, he approached the victim, who remained lying on the floor, and shot him two more times from less than two feet away.[4] The defendant then left the bar, attempting to shoot others as they ran. He fled Massachusetts days after the shooting and was apprehended in Mexico nine months later.
[3] Sunsin may also have been hit by the defendant's gunfire.
[4] The medical examiner testified that these two gunshot wounds to the victim's chest were fatal.

Id. at 589-90, 36 N.E.3d at 537-38.

         Testimony of Danny Diaz

         It was the defendant's contention that he shot in defense of his friend Sunsin who was being attacked. Id. at 592, 36 N.E.3d at 539. The Commonwealth contended that Camacho shot Santiago with extreme atrocity and cruelty by deliberately shooting him while he was already lying on the ground, having previously been wounded by Camacho, and at a time when Santiago was fleeing from the shooting and was not otherwise involved in the melee. Id. at 607-08, 36 N.E.3d at 550-51; SA 19. Evidence of this deliberate act came from the tape from the surveillance camera and the testimony of Danny Diaz, who was the only eyewitness to the shooting. Camacho, 472 Mass. at 604-05, 36 N.E.3d at 548-49; see also RA II at 809-10, 825-26.

         On the night of the shooting, Diaz gave a videotaped interview with the police at which he described the events in question. Camacho, 472 Mass. at 605, 36 N.E.3d at 549. Although the videotape was produced by the Commonwealth in discovery, defense counsel did not view it until the night before Diaz's cross-examination. Id. As discussed more fully below, counsel's failure to view the videotape earlier in the litigation is part of Camacho's claim of ineffective assistance of counsel. Diaz also testified at the grand jury, consistent with his statement to the police. Id. & n.22. Defense counsel did review the grand jury testimony prior to trial. Id.

         Before trial started, Diaz had been charged with drug trafficking and had fled the country. Id. at 605-06 & n.24, 36 N.E.3d at 549 & n.24. He was eventually apprehended, but it was doubtful whether he could be extradited to Massachusetts in time for trial, and the trial judge denied the parties' request for a continuance. See id. Thus, when trial started, Diaz was not available to testify. It was not until the seventh day of trial that Diaz was returned to the Commonwealth and it was confirmed he would take the stand. Id. at n.25. His testimony on the eighth day of trial was consistent with his prior statements. Id. at 605, 36 N.E. 3d at 549.

         Significantly, up until Diaz's testimony, the Commonwealth had offered Camacho a plea to second degree murder, although defense counsel was holding out for a manslaughter plea. After Diaz's testimony, however, the prosecutor became convinced that the evidence was strong enough to support a first degree murder conviction, and that a plea to second degree murder was no longer a viable alternative. See id. at 606 & n.26, 36 N.E.3d at 549-50 & n.26. As discussed more fully below, Camacho claims that defense counsel's failure to recommend that Camacho accept the offer to plead guilty to second degree murder constituted ineffective assistance of counsel.

         Plea Negotiations [4]

         Camacho was represented by Willie Davis at trial, an experienced trial attorney. SA 19. Attorney Davis testified in connection with Camacho's motion for a new trial based on ineffec-tive assistance of counsel, as did the prosecutor, Assistant District Attorney (“ADA”) Patrick Haggan. See RA II at 479-541. The evidence established that Attorney Davis continuously requested that the Commonwealth accept a manslaughter plea, even without agreement as to a term of years. SA 20. In light of the uncontested fact that Rodriguez was the aggressor when he attacked Sunsin with a beer bottle, Attorney Davis felt that he had a viable defense to all the charges, namely the defense of another person (i.e., Sunsin). SA 19. Alternatively, Attorney Davis was of the opinion that the jury could believe that Camacho used excessive force in connection with his defense of another, and, consequently, return a verdict of manslaughter. SA 19-20. The prosecutor remained adamant that the only plea the Commonwealth would accept was to second degree murder. SA 20. According to the trial judge in his ruling on the motion for a new trial, “central” to the ADA's offer “was the expected evidence from Mr. Diaz, who clearly saw the defendant return to the fray and shoot two bullets into Santiago. Diaz's evidence was memorialized by the police in a recorded interview shortly after the shooting and in grand jury testimony.” Id. For his part, Attorney Davis continued to feel that manslaughter was the appropriate disposition, and advised Camacho to reject the offer of a plea to second degree murder. Id.

         As described above, at the outset of the trial, it was far from clear that Diaz, the only eyewitness, would be available to testify or if he would be a favorable witness for the prosecution. Id. Diaz was returned to the Commonwealth on the seventh day of trial, and testified on the eighth day. Id. According to the prosecutor, he was no longer willing to accept a plea to second degree murder after Diaz testified, as he was convinced that the evidence was strong enough that the jury could return a verdict of first degree murder. Id. In the prosecutor's view, Diaz “did an excellent job on the witness stand.” RA II at 516. Prior to that time, the prosecutor was of the opinion that the jury could come back with a second degree murder or manslaughter conviction. See RA II at 512, 514, 517-18. Attorney Davis, on the other hand, continued to believe, even after Diaz's testimony, that manslaughter was the appropriate disposition. SA 20.

         Attorney Davis's opinion changed when, during his closing, the prosecutor made a very persuasive use of still photographs and video from the surveillance camera to argue that Camacho returned, in effect, to execute the victim after the danger from Rodriguez had passed. SA 21; see RA II at 883-92, 899-901 (Commonwealth's closing argument referencing still photo-graphs and surveillance video). While Attorney Davis had viewed the surveillance tape and photographs before, it was only at this point that Attorney Davis recognized the serious risk of a first degree murder conviction.[5] See SA 21. By then, however, it was too late as the Commonwealth would no longer entertain a plea recommendation to second degree murder. Id. Attorney Davis did not express his concerns to the defendant as it would not have done any good. Id.

         In denying Camacho's motion for a new trial and claim of ineffective assistance of counsel, the trial judge ruled as follows:

In this case, Mr. Davis's advice to reject the Commonwealth's offer of a second-degree murder plea bargain was not unreasonable. Here there was no question that the defendant was not the original aggressor, and acted only after Rodriguez's vicious attack with a beer bottle. Present defense counsel now argues that Davis did not give enough predictive weight to the impact of Diaz's testimony and the evidence of the video. But that strikes me as Monday morning quarterbacking. Diaz was, as stated, a problematic witness for the government. It was highly uncertain that he would ever appear; and that, if he did, he would be willing to testify. Hardly a saint, Diaz had a few blots on his escutcheon which Mr. Davis could exploit.
To be sure, the video evidence was always there and available even if Diaz did not testify. In many respects, however, absolute clarity of the video was lacking. I accept, in large part because I was there and heard the final arguments, Mr. Davis's testimony that he did not realize that his defense was in trouble until Mr. Haggan's final argument. Mr. Davis no doubt anticipated that Mr. Haggan, an experienced prosecutor, would deliver an excellent closing. There was, however, something powerfully persuasive about the manner in which Mr. Haggan interspersed his oral argument with scenes from the video. That Mr. Davis did not fully appreciate the strength of the Commonwealth's case until then is understandable.
For these reasons I find and rule that Mr. Davis's plea advice to the defen-dant did not fall below that which might be expected from an ordinary fallible lawyer. When his judgment changed about the strength of the Commonwealth's case, it was too late to make any difference to the defendant. Following final argument, murder in the second degree would not have been on the table.

SA 21-22.

         Discovery Related to ...


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