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Barbosa v. Silva

United States District Court, D. Massachusetts

September 3, 2019

JASON BARBOSA, Petitioner,
STEVEN SILVA, Respondent.


          Denise J. Casper, United States District Judge.

         I. Introduction

         Petitioner 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 Seven).

         II. Standard of Review

         Under 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").

         For the 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).

         III. Relevant Factual and Procedural Background

         Unless 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).[1]

         A. Police Investigation and Charge

         The 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.

         The 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.

         Following 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. 93.

         At the 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.

         B. Relevant State ...

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