United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge.
Jason Barbosa ("Barbosa"), acting pro se,
has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 (the "Petition"). D. 1.
Respondent Steven Silva ("Respondent"), the
Superintendent of the Souza Baranowski Correctional Center,
moves to dismiss the Petition. D. 12. For the reasons
discussed below, the Court ALLOWS the motion to dismiss as to
Ground Eight and will allow the motion to dismiss as to the
other exhausted grounds unless, within 30 days of this Order,
Barbosa voluntarily dismisses the unexhausted claims (Grounds
Four and Five) and seeks to proceed with the remaining
exhausted claims (Grounds One through Three and Six through
Standard of Review
the Antiterrorism and Effective Death Penalty Act
("AEDPA"), federal courts may review petitions for
habeas relief resulting from either a decision that was
"contrary to, or involved an unreasonable application
of, clearly established Federal law" or "based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). As an initial matter, a petitioner
must show that he has exhausted all of his state court
remedies or, in the alternative, that the State did not offer
appropriate corrective measures. Id. To carry the
burden of proving exhaustion, Barbosa must demonstrate that
he has "fairly and recognizably" presented his
claim to the state's highest court, the Supreme Judicial
Court in this case. Casella v. demons, 207 F.3d 18,
20 (1st Cir. 2000); Adelson v. DiPaola, 131 F.3d
259, 263 (1st Cir. 1997) (noting that "the decisive
pleading [regarding exhaustion] is the application for
further appellate review, and [the Court] must determine
whether the petitioner fairly presented the federal claim to
the [Supreme Judicial Court] within 'the four
corners' of that application").
purposes of § 2254(d)(2), any factual determinations
made by a state court are "presumed to be correct"
unless rebutted by "clear and convincing evidence."
28 U.S.C. § 2254(e)(1). "[A] decision adjudicated
on the merits in a state court and based on a factual
determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence
presented in the state-court proceeding." Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003).
Relevant Factual and Procedural Background
otherwise noted, the factual background set forth below is
drawn from the Supreme Judicial Court's decision
affirming Barbosa's conviction. Commonwealth v.
Barbosa, 477 Mass. 658 (2017).
Police Investigation and Charge
charges against Barbosa arose out of the February 2012 murder
of Anthony Depina ("Depina"), who was shot outside
of a bar in Roxbury, Massachusetts. Appx. 90. The
Commonwealth alleged that Barbosa was a knowing participant
in the murder, either as the shooter or as an accomplice.
Id. The jury found Barbosa guilty of murder in the
first degree. Id.
events of February 2012 resulted from animosity between two
rival gangs. Appx. 91. Barbosa and Depina were associated
with rival Cape Verdean gangs - the victim, Depina, was
associated with the Wendover Street gang and Barbosa was
associated with the Woodward Avenue gang. Id. In
December 2011, Barbosa and other members of the Woodward
Avenue gang were involved in an altercation with members of
the Wendover Street gang, during which Barbosa was injured.
Id. Two months later, on the evening of February 23,
2012, Barbosa and other Woodward Avenue gang members went to
a bar located in an area claimed by the Woodward Avenue gang,
but also frequented by members of the Wendover Street gang.
Id. Depina also visited the bar that evening.
Id. Although associated with rival gangs, Depina and
Barbosa had grown up together, so Depina greeted Barbosa and
shook his hand before walking to the end of the bar.
Id. Both men came and went from the bar at various
times that evening without incident. Id. Barbosa at
one point left the bar and drove around the area, returning
to the area of the bar and appearing to be searching the
area. Id. at 91-92. Having left the bar during this
time, Depina and a woman he was with returned to the bar with
plans to get a drink with some friends. Id. at 92.
The friends decided not to go into the bar, so Depina stood
outside talking at the window of the friend's vehicle.
Id. While Depina was talking to his friend, Barbosa
drove up in a small black SUV and told Depina "you
don't belong here" before driving away. Id.
this interaction, Depina's friends encouraged Depina to
leave the area, but he refused, stating that he was a
"tough kid" and wouldn't be told where he could
go. Id. Depina's friends left and he and the
woman he was with intended to stay at the bar for a drink.
Id. The woman went into the bar to use the restroom
and Depina stayed outside to smoke a cigarette. Id.
While Depina was outside, Barbosa drove by again slowly.
Id. Depina pointed at Barbosa as he drove by and
then went into the bar. Id. Once he found the woman
he had arrived with he told her that he had changed his mind
and wanted to leave. Id. As the two approached
Depina's vehicle, they noticed headlights from a vehicle
up the street flash four times. Id. Depina then
stated "are you for real, little J," referring to
Barbosa by his nickname, and the woman looked up to see an
individual walking in the street towards them. Id.
Moments later, an individual shot at Depina from a nearby
alley. Id. Depina was shot in the torso and head and
fell to the ground, Id. and died within seconds.
Id. at 95. Investigators were unable to confirm
whether the shots came from one or multiple weapons. Appx.
time of the murder, Barbosa was on probation and wearing a
GPS monitor. Appx. 92. Data from the monitor indicated that
Barbosa was near Depina at the time of the murder and was
then in a vehicle traveling away from the bar immediately
thereafter. Id. Officers arrived at the scene to
find the woman who was with Depina inconsolable and they took
her to the police station for questioning. Appx. 93. She
continued to be distraught and explained "they're
going to kill me for this" and "I'm going to
die for this. I'm going to tell you anyway."
Id. She then proceeded to identify Barbosa as the
shooter. Id. Two days later, Barbosa and another man
were stopped by police, who searched Barbosa's phone
pursuant to a search warrant. Id. Telephone records
indicated that Barbosa called one of the leaders of the
Woodward Avenue gang a couple minutes before the shooting and
then called another leader of the gang about one minute after
the shooting. Id. Over the next ten minutes
following the shooting, Barbosa made calls to and received
calls from other Woodward Avenue gang members. Id.
Relevant State ...