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Almeida v. Cowin

United States District Court, D. Massachusetts

September 11, 2019

MARCELLO ALMEIDA, Petitioner,
v.
BRAD COWIN, Respondent.

          ORDER ON MOTION TO DISMISS (DOC. NO. 20)

          Leo T. Sorokin United States District Judge.

         Marcello Almeida, a prisoner at the Massachusetts Correctional Institution in Norfolk, Massachusetts, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent seeks dismissal of the petition, arguing that the claim Almeida presents is procedurally defaulted. Because the respondent is correct, Almeida's petition is DISMISSED.

         I. BACKGROUND

         In October 2015, following a jury trial in Plymouth County Superior Court, Almeida was convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole. Commonwealth v. Almeida, 96 N.E.3d 708, 710 (Mass. 2018); Doc. No. 1 at 1.[1] The criminal charge arose after Almeida admittedly stabbed a woman to death and then unsuccessfully attempted suicide. Almeida, 96 N.E.3d at 712. Almeida and the victim had been in a turbulent relationship, and they had a child together. Id. at 711-12.

         In the hospital after his arrest, Massachusetts State Trooper Robert Lima read Almeida his Miranda rights in Portuguese, Almeida's native language. Id. at 713. Almeida said he would talk, then changed his mind after Lima informed him that his lawyer had been notified and had advised Almeida not to speak. Id. Half an hour later, Almeida initiated a conversation with Lima, first in broken English, then in Portuguese. Id. After talking about his siblings, his job, and his children, Almeida said: “[W]hat did I go do . . . I killed my woman.” Id. According to Lima, who testified at trial, Almeida seemed upset and began to cry. Id.

         In Portuguese, Lima reminded Almeida of his Miranda rights, of his lawyer's advice, and that he was speaking to a police officer, and “told [him] to stop talking.” Id. Almeida responded by saying he “just wanted to talk to [Lima], ” but said nothing further. Id. Lima described the entire exchange as lasting a few minutes and characterized Almeida as “very alert and cognizant of his surroundings and . . . aware of what he was saying.” Id. When examined by Almeida's counsel at trial, Lima agreed that Almeida had not told him when, how, or why he had killed the victim. Id.

         Almeida also testified at trial. Id. He said “he loved the victim, ” and that previous fights between them “were never physical.” Id. In describing the circumstances surrounding her death, Almeida testified that the victim knocked on his door, that he feared she would leave without talking to him, that he retrieved a knife intending to slash her tires and prevent her from going, and that he stabbed her after she “told him she did not love him anymore and that she had been with another man.” Id. at 713-14. The prosecutor cross-examined Almeida about his failure to mention this explanation in conversations he had with various people, including Lima, in the wake of the killing. Doc. No. 29 at 148-54. Trial counsel objected during this line of questioning, without stating the basis for his objection. Id. at 151. Later, in a sidebar discussion after the prosecutor suggested Almeida had adopted the explanation only after learning a rape kit test of the victim suggested she had had sex before she died, trial counsel raised a concern that the prosecutor's questions might, in part, implicate conversations between Almeida and counsel. Id. at 151. In explaining his view, trial counsel said questions about Almeida's earlier omissions were “probably . . . appropriate, ” but also referenced Almeida's rights to counsel and to silence. Id. at 152-53. On redirect examination, trial counsel asked Almeida why he had not previously mentioned the victim's alleged statement about another man, suggesting via a leading question that the revelation had been embarrassing for Almeida. Id. at 155.

         At the conclusion of the trial, Almeida's lawyer urged the jury to convict Almeida of manslaughter, rather than murder. Doc. No. 21-1 at 15. In her closing argument, the prosecutor compared Almeida's statement to Lima with his trial testimony, urging the jury to reject the heat-of-passion defense. In particular, she emphasized Almeida's failure to tell Lima that he had killed the victim “because she cheated on [him]” or “because she told [him] she had sex with another man.” Id. at 713. Almeida's counsel objected at trial to various statements in the prosecutor's closing argument which he suggested misstated the evidence or impermissibly shifted the burden of proof, and he requested a mistrial. Doc. No. 21-1 at 39-42.[2] He did not, however, invoke the Fifth Amendment or otherwise object at that time to the prosecutor's comments about things Almeida omitted from his statement to Lima. Id.

         Almeida timely appealed his conviction and sentence. Id. at 11. On May 17, 2018, the Supreme Judicial Court (“SJC”) affirmed, addressing and rejecting Almeida's challenges to the prosecutor's closing argument, the admission of prior bad acts evidence, and certain aspects of the trial court's jury instructions. Almeida, 96 N.E.3d at 714-18. Almeida did not petition the United States Supreme Court for certiorari, nor did he pursue any collateral challenges to his conviction in state court via a motion for a new trial. Instead, he filed a timely pro se federal habeas petition raising a single constitutional challenge: the denial of his right to due process arising when the trial court permitted the prosecutor “to argue that [Almeida's] trial testimony was [i]n effect a recent fabrication” and to “zero in on [Almeida's] invocation of his right to silence.” Doc. No. 1 at 5.

         The respondent's motion to dismiss the petition is fully briefed and ripe for resolution.

         II. LEGAL STANDARDS

         A state prisoner is entitled to habeas relief in federal court only if he has first exhausted his available remedies in state court. 28 U.S.C. § 2254(b); see O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Mele v. Fitchburg Dist. Court, 850 F.2d 817, 819 (1st Cir. 1988). To exhaust a claim, a petitioner must “fairly present” it to the state courts, “thereby alerting [the state courts] to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004); see O'Sullivan, 526 U.S. at 848; Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011). Failure to exhaust federal claims in state court may result in procedural default of those claims for habeas purposes. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

         Even where a petitioner has fairly presented his federal claims in state court, procedural default occurs when the state court refuses to address such claims on the merits because of “a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729); accord Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010); see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”). The procedural default doctrine is “designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez, 566 U.S. at 9.

         Massachusetts law imposes “a routinely enforced, consistently applied contemporaneous objection rule.” Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995); see Commonwealth v. Lavoie, 981 N.E.2d 192, 197 n.8 (Mass. 2013); Mass. R. Crim. P. 22. The rule is “firmly established and consistently followed, ” Martinez, 566 U.S. at 9, and the First Circuit repeatedly has held that it constitutes “an independent and adequate state procedural ground” that bars federal habeas review. Janosky, 594 F.3d at 44. Although Massachusetts appellate courts sometimes review claims for “miscarriage of justice” despite a failure to contemporaneously object, such discretionary and limited review “does not in itself indicate that the court has determined to waive” the contemporaneous objection rule and consider the underlying claim on its merits. Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991); accord Janosky, 594 F.3d at 44; Burk, 55 F.3d at 726 n.2. Federal courts will infer waiver of such a state ...


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