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Archeval v. Goguen

United States District Court, D. Massachusetts

September 12, 2019

DOMINGO ARCHEVAL, Petitioner,
v.
COLLETTE GOGUEN, Respondent.

          REPORT AND RECOMMENDATION

          DAVID H. HENNESSY UNITED STATES MAGISTRATE JUDGE

         Proceeding 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.

         I. Factual Background

         The facts underlying Petitioner's conviction, summarized below, are set out in the opinion of the Hampden Superior Court.[1]

         On 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.[2] (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.).

         The two 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).

         On 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.).

         Rios, 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.).

         Bahamundi 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. (Id.).

         The 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.)

         II. Procedural History

         On 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 II”).

         On August 31, 2000, Petitioner filed both a notice of appeal and a motion for a new trial. (A. 9)[3]. 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. (Id.).

         On 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).

         On 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.[4] (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).

         On 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).

         Petitioner 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 118627, ...


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