United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. HENNESSY UNITED STATES MAGISTRATE JUDGE
pro se, Petitioner Domingo Archeval
(“Petitioner”) has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his state court conviction. (Docket #26). Pursuant to 28
U.S.C. § 636(b)(1)(B) and an Order referring the
petition to me, (Docket #31), I recommend that
Petitioner's petition be denied and dismissed.
facts underlying Petitioner's conviction, summarized
below, are set out in the opinion of the Hampden Superior
September 10, 1999, Hector Isales and three of his friends
(Dustin Velez, Miguel Valentin, and Joseph Estanislau) were
driving to Springfield in Estanislau's red Honda Civic.
(Docket #40-1 at 2). After attending a party, they left to
search for marijuana. (Id.). While backing into a
parking space, Estanislau almost struck a group of people
crossing the street behind his car. (Id.). This
group included Madeline Rios, Petitioner's girlfriend.
(Id. at 2-3). Rios and Estanislau then exchanged
words. (Id.). After the exchange, Isales and his
companions continued to drive around the Springfield area
until meeting two friends, Anita Larriu and Maria Pantoja.
(Id. at 3). Isales, Valentin, and Estanislau left
the car, but Velez remained. (Id.). As Isales talked
with Larriu and Pantoja, Valentin and Estanislau went to a
nearby alley. (Id.). During their conversation, Rios
approached in a black BMW, and asked Isales for the owner of
the Honda. (Id.). Isales told Rios that Estanislau
was in an alley. (Id.). Around that same time, a
group of men crossed the street and approached Isales and
Pantoja. (Id.). Petitioner, his brother Carlos, and
Hector Rivera were identified as being a part of the group.
(Id.). Petitioner asked Isales whether he was
“the one messing with my girl.” (Id.).
men began pushing each other and eventually exchanging
punches. (Id.). Several other men began hitting
Isales, and Velez and Valentin joined the fight.
(Id.). Isales heard someone shout, “Manito,
pull out, ” at which point one of the men who had
approached them pulled out a gun and began firing.
(Id. at 3-4). Isales was shot in the chest and leg,
while Velez was fatally shot in the back of the head.
(Id. at 4).
September 22, 1999, twelve days after the shooting, Isales
identified Petitioner as the shooter from a photographic
array. (Id.). Isales again identified Petitioner as
the shooter at trial. (Id.).
the co-defendant, called Israel Bahamundi as a witness during
trial. (Id.). Bahamundi testified that on the night
of the shooting he was driving a taxicab. (Id.).
Shortly before midnight, while waiting for a fare in a
location near the fight, he heard shots fired.
(Id.). He testified that he saw a person shoot a
silver-colored gun and then run in his direction.
(Id.). Although he slouched down in his seat to
avoid danger, he watched the shooter and others run past his
taxicab. (Id.). He acknowledged that the situation
was chaotic and that he had a brief opportunity to see the
shooter. (Id.). Bahamundi described the shooter as
wearing an open gray zip-up sweatshirt, with a white t-shirt,
and jeans. (Id. at 5). He also identified the
shooter as left-handed. (Id.).
testified that the police contacted him about the incident
the day after the shooting. (Id.). At the
Springfield Police station, the police showed him a
photographic array, but he told the police officers that he
was not certain if any of the persons included in the array
was the shooter or present at the incident. (Id.).
Although Petitioner's photograph was in the array that
Bahamundi reviewed, neither the prosecutor nor
Petitioner's trial counsel elicited this information from
Bahamundi during trial. (Id.). Petitioner's
trial counsel did not ask Bahamundi if Petitioner was the
person whom he saw shoot the gun and run past his cab.
trial court found that after testifying, Bahamundi told an
unidentified court officer outside the courtroom that he was
certain Petitioner was not the shooter. (Id. at 6).
Petitioner's counsel received a note that Bahamundi had
made a statement to a court officer that Petitioner was not
the shooter. (Id.). Petitioner's counsel
immediately attempted to locate Bahamundi through his private
investigator, but failed to do so. (Id.).
Petitioner's counsel did not provide this information to
the court, request a continuance, or otherwise attempt to
resummons Bahamundi. (Id. at 7.)
August 31, 2000, a jury found Petitioner guilty of five
offenses: (1) second degree murder (Mass. Gen. Laws ch. 265,
§ 1); (2) armed assault with intent to kill (Mass. Gen.
Laws ch. 265, § 18(b)); (3) assault and battery by means
of a dangerous weapon (Mass. Gen. Laws ch. 265 § 15A);
(4) unlawful possession of a firearm (Mass. Gen. Laws ch.
269, § 10(a)); and (5) unlawful possession of ammunition
(Mass. Gen. Laws ch. 269, § 10(h)). Commonwealth v.
Archeval, No. 14-P-644, 88 Mass.App.Ct. 1120, 2016 WL
118627, at *1 (Jan. 12, 2016) (“Archeval
August 31, 2000, Petitioner filed both a notice of appeal and
a motion for a new trial. (A. 9). The appeal was stayed to
allow him to pursue a motion for a new trial. (A. 11).
Petitioner filed a motion for a new trial on December 10,
2003, claiming ineffective assistance of counsel. (A. 11;
Docket #40-1 at 7). On May 20, 2004, an evidentiary hearing
on the motion for a new trial was conducted. (A. 11). The
trial court denied Petitioner's motion on July 16, 2004.
(A. 13). Petitioner appealed his convictions along with the
denial of his motion for a new trial to the Appeals Court.
appeal, Petitioner raised three arguments: (1) the trial
judge committed prejudicial error by denying his request for
a missing witness instruction for the Commonwealth's
failure to call Valentin; (2) trial counsel was ineffective
for failing to interview and elicit purportedly exculpatory
testimony from Bahamundi concerning the identity of the
shooter; and (3) trial counsel failed to establish that the
photographic array viewed by Bahamundi included the
defendant's photograph, but not other potential suspects.
Commonwealth v. Archeval, 66 Mass.App.Ct. 1110, 2006
WL 1585429, at *1 (June 9, 2006) (“Archeval
I”). The Appeals Court affirmed the judgments
against Petitioner and the trial court's denial of
post-conviction relief. Id. at *3. On July 6, 2006,
Petitioner filed an application for leave to obtain further
appellate review from the Massachusetts Supreme Judicial
Court (“SJC”). (A. 867). The SJC denied further
appellate review on July 26, 2006. (A. 867, 911).
February 26, 2007, Petitioner, acting pro se, filed a second
motion for a new trial as well as a motion for appointment of
counsel. (A. 13). The Commonwealth filed its opposition on
May 15, 2007. (Id.). On November 23, 2010, appellate
counsel filed a motion for post-conviction relief, which was
treated as a third motion for a new trial. (A. 15, 319-37).
On that date, Petitioner also filed a pro se supplement to
the motion for a new trial, which claimed that both trial and
appellate counsel were ineffective for failing to argue that
Isales' testimony was not credible as a matter of law.
(A.15, 447-60). In the motion filed by counsel, Petitioner
raised, inter alia, the issue of alleged newly
discovered evidence in the form of an affidavit from his
brother Carlos in which Carlos confessed to having been the
shooter. (A. at 331-32). On December 23, 2010, Petitioner
filed a motion for funds to hire an expert on the reliability
of eyewitness identification. (A. 15, 759). Following a
hearing on January 31, 2011, the motion judge denied the
defendant's motion for funds on February 14, 2011. (A.
17). On February 10, 2011, Petitioner moved pro se to
withdraw his second motion for a new trial. (A. 17, 597-99).
August 2, 2011, the court denied Petitioner's third
motion for post-conviction relief. (A. 605-17). Petitioner
moved to vacate the judge's decision on September 15,
2011, asserting that he expected to submit additional
information from an eyewitness identification expert to
supplement his motion. (A. 17, 691-23). On December 27, 2011,
Petitioner's counsel filed an affidavit in support of the
motion to vacate with an attached report of Dr. Jennifer
Dysart, an expert in the area of identification. (A. 624,
695). On December 24, 2012, the trial judge vacated the
August 2, 2011 decision denying Petitioner's third motion
for post-conviction relief. (A. 693). The hearing was held on
May 14, 2013. (A. Tab M:1). On December 26, 2013, the court
denied Petitioner's third motion for post-conviction
relief. (A. 779-93).
noticed his appeal on January 6, 2014. (A. 19). On appeal,
Petitioner raised five issues: (1) the trial court should
have granted his third motion for a new trial based on newly
discovered evidence; (2) “justice was not done”;
(3) the trial court erred by ruling that Petitioner was not
entitled to a hearing on his motion for postconviction
relief; (4) the trial court erred in allowing the
Commonwealth to file and argue oppositions to the
Petitioner's motions for funds; and (5) Petitioner
received ineffective assistance of counsel because trial
counsel did not move for a required finding of not guilty
after Isales' testimony and because appellate counsel did
not raise the issue on appeal. Archeval II, 2016 WL