Federal District Court Opinions
EVANS v. THOMPSON, (Mass. 12-11-2006) JIMMY EVANS,
Plaintiff, v. MICHAEL THOMPSON, Superintendent, MCI
Shirley, Defendant. CIVIL ACTION NO. 04-12205-WGY. United
States District Court, D. Massachusetts. December 11, 2006
Susanne G. Reardon Office of the Attorney General Boston,
MA, representing Michael Thompson (Respondent).
Ryan M. Schiff Salsberg & Schneider, Michael R. Schneider
Salsberg & Schneider, Boston, MA, representing Jimmy Evans
(Petitioner).
MEMORANDUM AND ORDER
WILLIAM YOUNG, Chief Judge
I. INTRODUCTION
Jimmy Evans (“Evans”) brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Evans is
seeking an evidentiary hearing plus funds to pursue
forensic, ballistic, and fingerprint testing and a reversal
of his convictions of first degree murder and possession of
a firearm without a license in the Massachusetts Superior
Court sitting in and for the County of Suffolk. Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody [Doc. No. 1] (“Habeas Pet.”) at
2; Petitioner’s Motion for Funds & for an Evidentiary
Hearing in Support of His Petition for Writ of Habeas
Corpus [Doc. No. 12] at 1. Evans’ older brother John Evans
(“John”) was also Page 2 convicted of first degree murder
for his involvement in the same incident. Commonwealth v.
Evans, 439 Mass. 184, 186 (2003).
Evans bases his request for relief on four principal
arguments: (1) the unconstitutionality of 28 U.S.C.
§ 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”); (2) the
alleged application of improper standards by the
Massachusetts Supreme Judicial Court (“Supreme Judicial
Court”) in determining the facts upon which its legal
analysis was grounded; (3) ineffective assistance of
counsel at trial; and (4) violation of federal
constitutional due process rights due to the inability to
confront two Commonwealth witnesses. Petitioner’s
Memorandum in Support of Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 [Doc. No. 2] (“Pet. Mem.”) at
1-2.
In response, the Commonwealth asserts that one of Evans’
claims regarding the confrontation of a witness at trial
was not properly presented to the Supreme Judicial Court
and is therefore not exhausted. Respondent’s Memorandum in
Opposition to Petition for Habeas Corpus [Doc. No. 7]
(“Resp. Mem.”) at 1. As a result, the petition must be
denied. Id. In the alternative, if this Court reaches the
merits of the claims, the Commonwealth argues that Evans
cannot show that the state court’s decision was contrary to
or presents an unreasonable application of clearly
established federal law or an unreasonable determination of
the facts in light of the record evidence. Id. Page 3
II. FACTUAL[fn1] AND PROCEDURAL HISTORY
At about midnight on January 24, 1995, the victim, Lyle
Jackson (“Jackson”), went to Cortee’s Lounge, a nightclub
in Dorchester, where he met his friend, Marcello Holliday
(“Holliday”). Evans, 439 Mass. at 186-87. Evans, John,
Brown, and Tinsley were also at Cortee’s Lounge. Id. at
187. When Cortee’s closed at approximately 1:45 AM on
January 25, Holliday left with Jackson and another friend,
and entered a car which was parked directly across the
street from Cortee’s. Id. Before driving away, John ran
past their car and fired a handgun at a group of people
across the street. Id.
Jackson, Holliday, and their friend then drove to
Walaikum’s, a small fast food restaurant that was crowded
with customers when they arrived at approximately 2:20 AM.
Id. About fifteen minutes later, Evans and John entered the
restaurant, looked around, and then walked out. Id. Less
than one minute later, they reentered and Evans produced a
silver handgun with a black handle. Evans, 439 Mass. at
187. With John beside him, Evans walked toward Jackson,
who, seeing him approach with the gun, began to back away.
Id. At this point Holliday, who was Page 4 sitting close
by, ran out of the restaurant. Id. As he backed away,
Jackson fell over some tables and chairs and begged Evans
to spare his life. Id. Evans shot the victim four or five
times. Id.
Alton Clarke (“Clarke”), a patron of the restaurant,
witnessed the murder. Id. During the shooting, Clarke tried
to leave the restaurant, but was confronted by John, who
was armed with a black handgun. Evans, 439 Mass. at 187.
John allowed Clarke to leave after Clarke stated that he
had nothing to do with Jackson. Id. John then approached
Jackson and fired a shot at him. Id. Clarke heard this shot
as he was fleeing the restaurant. Id. Willy Wiggins, who
owned Walaikum’s, saw the first gunman shooting Jackson and
ran to the back of the kitchen to call the police. Id.
Evans, John, Brown, and Tinsley left the scene in a gold
Lexus automobile. Id. John was the driver of the Lexus,
Evans was in the front passenger seat, and the other two
sat in the back. Evans, 439 Mass. at 187. Clarke recorded
the plate number, gave it to a security guard, and also
called 911 on his cellular telephone. Superior Court
Memorandum of Decision and Order on Defendants’ Motions for
New Trial (“Super. Ct. Mem.”) at 4 (December 30, 1999)
(Donovan, J.) in Petitioner’s Appendix B of Pet. Mem. at
33a. Holliday saw the gold Lexus flee the scene, identified
John as the driver, and noticed three other passengers in
the car. Id. at 2-3. Back at the restaurant, Holliday found
Page 5 Jackson lying on the floor, spitting up blood and
attempting to talk. Id. at 3. Holliday and Marvette Neal
(“Neal”) attempted to comfort Jackson while medical
personnel arrived. Id.
The police arrived on the scene and pursued the gold Lexus
automobile. Evans, 439 Mass. at 187. During the ensuing
chase, two guns were thrown out of the front passenger
window of the Lexus. Id. at 187-88. The Lexus stopped at a
dead end street and the occupants got out and fled on foot.
Id. at 188. All four were ultimately apprehended and the
two guns thrown from the Lexus were recovered. Id. One of
the guns was a silver-plated nine millimeter Ruger
semiautomatic handgun with a black handle. Id. The other
gun was a black nine millimeter Heckler & Koch
semiautomatic handgun. Id. Six shell casings (three from
each gun) and four bullet fragments (two from each gun)
were recovered from inside and outside the restaurant.
Evans, 439 Mass. at 188. One of the bullet fragments
removed from Jackson’s body matched the black Heckler &
Koch. Id. No identifiable fingerprints could be retrieved
from either gun. Id.
Jackson was shot three times and he died from an infection
due to his wounds. Id. One bullet passed through his left
forearm and reentered his left chest. Id. This bullet was
recovered by the medical examiner. Super. Ct. Mem. at 3.
The two other bullets entered near the left rib cage,
traveled through the body, and exited the right side of his
abdomen. Id. Page 6
On February 21, 1995, Evans was indicted and charged with
first degree murder, two counts of illegally possessing
ammunition, and two counts of illegally possessing a
firearm. Pet. Mem. at 2. Evans, John, Brown, and Tinsley
were tried on a theory of joint venture. Evans, 439 Mass.
at 188. On November 8, 1996, after a jury trial in Suffolk
County Superior Court, Evans was convicted on all counts
and sentenced to life without parole on the murder
conviction and concurrent terms of five years on the two
firearm charges. Resp. Mem. at 2. The remaining ammunition
convictions were placed on file with the petitioner’s
consent. Id. John was also convicted of first degree murder
as well as related charges. Pet. Mem. at 3. The two other
codefendants, Brown and Tinsley, were acquitted. Evans, 439
Mass. at 188.
On November 17, 1998, Evans filed a motion for a new
trial. Resp. Mem. at 2. After two non-evidentiary hearings,
Justice Elizabeth Donovan of the Superior Court denied the
motion in a written memorandum and order on December 30,
1999. Super. Ct. Mem. at 1, 27. Evans filed a timely notice
of appeal from the denial of his motion for a new trial.
Resp. Mem. at 2. This appeal was consolidated with his
direct appeal to the Supreme Judicial Court, filed pursuant
to Massachusetts General Laws chapter 278, section 33E. Id.
On April 16, 2003, the Supreme Judicial Court affirmed
Evans’ conviction and upheld the denial of his
post-conviction Page 7 motions. Evans, 439 Mass. at 205. A
petition for rehearing was denied on June 5, 2003. Resp.
Mem. at 3. On October 20, 2003, the United States Supreme
Court denied Evans’ petition for writ of certiorari. Evans
v. Massachusetts, 540 U.S. 973 (2003).
Evans filed a petition for writ of habeas corpus and
supporting memorandum in this Court on October 19, 2004.
Habeas Pet. at 1.
III. DISCUSSION
A. Standard of Review
Habeas corpus review of claims previously adjudicated in
state court is both limited and highly deferential:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was 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). This “highly deferential
standard for evaluating state-court rulings” reflects the
overarching structure of the federal habeas corpus scheme,
which vests “primary responsibility” for evaluating federal
law claims raised in criminal trials in the state courts.
Woodford v. Visciotti, Page 8 537 U.S. 19, 24, 27 (2002)
(per curiam) (citing Lindh v. Murphy, 521 U.S. 320, 333 n.
7 (1997)). State courts are presumed to know and follow
federal law. Id. at 24. Under current Supreme Court
precedent, habeas relief is not warranted if the state
court’s decision was merely erroneous or incorrect. Id. at
27; Williams v. Taylor, 529 U.S. 362, 412-13 (2000). It is
not even sufficient that the state court “failed to apply”
clearly established Supreme Court law, Early v. Packer, 537
U.S. 3, 10-11 (2002) (per curiam), or that the state court
committed “clear error,” Lockyer v. Andrade, 538 U.S. 63,
75 (2003), or that the reviewing court is of the “firm
conviction” that the state court’s ruling was erroneous,
id. at 75-76.
Rather, federal courts must not disturb state court
judgments unless the petitioner demonstrates that his claim
falls into one of the narrow categories set forth in the
statute. See 28 U.S.C. § 2254(d). “Under the
`contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 412-13. The analysis under
the “unreasonable application” clause makes relief
available only if “the state court identifies the correct
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the
facts of the Page 9 prisoner’s case.” Id. at 413. The
application of a legal rule will be deemed unreasonable if
there is “some increment of incorrectness beyond error”
that is “great enough to make the decision unreasonable in
the independent objective judgment of the federal court.”
Norton v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d. Cir. 2000) and
McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002))
The clearly established law that is relevant to the
analysis under 28 U.S.C. § 2254(d)(1) is limited to
the holdings of Supreme Court cases extant at the time of
the state court decision, and it does not include dicta in
such cases. Williams, 529 U.S. at 412.
B. The Constitutional Challenge — The Great Writ
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.
U.S. CONST. Art. I, § 9. So is “the Great Writ of
Habeas Corpus established in clause 39 of Magna Carta
(1215) [] enshrined in our own United States Constitution.”
Enwonwu v. Chertoff, 376 F. Supp. 2d 42, 42 (D. Mass.
2005), aff’d in part and rev’d in part on other grounds,
438 F.3d 22 (1st Cir. 2006). Since the Writ is an aspect of
the matters expressly delegated by the Constitution to the
legislature, the Supreme Court has repeatedly recognized
that judgments about its proper scope are “normally for
Congress Page 10 to make.” Lonchar v. Thomas, 517 U.S.
314, 323 (1996). See AKHIL REED AMAR, AMERICA’S
CONSTITUTION: A BIOGRAPHY, 121-22 (2005).
In recent years, successive Congresses have expressed
their displeasure with the courts by consistently narrowing
the protections of the Writ and stripping the courts of
their jurisdiction to entertain habeas issues. AEDPA is
only one of a number of such legislative rebukes. See
Gonzalez v. United States, 135 F. Supp. 2d 112, 115 n. 5
(D. Mass. 2001) (recognizing AEDPA is “jurisdiction
stripping” legislation). To like effect, see the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546
(codified in scattered sections of the U.S.C.), providing
“[n]otwithstanding any other provision of law . . ., no
court shall have jurisdiction to review” certain orders
affecting aliens. 8 U.S.C. § 1252(a)(2)(C) (Supp. II
1996). See Ernest A. Young, Constitutional Avoidance,
Resistance Norms, and the Preservation of Judicial Review,
78 TEX. L. REV. 1549, 1553, 1567 (2000) (recognizing IIRIRA
is “jurisdiction-stripping” legislation); Note, Powers of
Congress and the Court Regarding the Availability and Scope
of Review, 114 HARV. L. REV. 1551, 1552-53 (2001) (“Courts
. . . struggle[] to construe IIRIRA narrowly in order to
avoid deciding the constitutional questions posed by such
congressional attempts to limit the availability of
judicial review.”). Page 11
More recently, Congress enacted the Real ID Act of 2005,
Pub.L. No. 109-13, Div. B, 119 Stat. 231, 302, stripping the
district courts of habeas jurisdiction over alien removal
orders.[fn2] See Enwonwu, 376 F. Supp. 2d at 84-85
(pointing out that, where the right to a jury trial
attaches, such ouster of jurisdiction is difficult if not
impossible and the American jury thus serves as a prime
guarantor of the separation of powers and judicial
independence). Most recently, the Supreme Court declared
that our captives in Guantanamo, some of whom apparently
have been the victims of torture,[fn3] may avail themselves
of the privilege of habeas corpus, Hamdan v. Rumsfeld, 548
U.S. ___, 126 S. Ct. 2749, 2764 (2006),[fn4] and Congress
promptly suspended the Page 12
[EDITORS’ NOTE: THIS PAGE CONTAINED FOOTNOTES.]
Page 13
Writ as to these captives and ousted all the courts from
affording collateral judicial review. Military Commissions
Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600, 2623-24.
All this is well known and the subject of public debate.
See, e.g., 152 Cong. Rec. H7508-60 (daily ed. Sept. 27,
2006) (statements of Rep. Markey, Rep. Cole, Rep.
Slaughter, Rep. Dreier, Rep. Hastings, Rep. Miller, Rep.
Matsui, Rep. Lungren, Rep. Skelton, Rep. Hunter, Rep.
Tauscher, Rep. Gingrey, Rep. Pelosi, Rep. Diaz-Balart, Rep.
McGovern, Rep. Gohmert, & Rep. Jackson-Lee); 152 Cong. Rec.
S10354-431 (daily ed. Sept. 28, 2006) (statements of Sen.
Kyl, Sen. Specter, Sen. Leahy, Sen. Sessions, Sen.
Feingold, Sen. Cornyn, Sen. Bond, Sen. Feinstein, Sen.
Smith, Sen. Levin, Sen. Byrd, Sen. Reid, & Sen. Graham);
Editorial, Letters to the Editor: Fear Alters Meaning of
Democracy in U.S., Columbus Dispatch, Nov. 26, 2006, at 4B;
Editorial, Terror Detainees Still Face Legal Limbo, Denv.
Post, Nov. 22, 2006, at B6; Talbot “Sandy” D’Alemberte, The
Golden Rule of International Human Rights, Orlando
Sentinel, Nov. 22, 2006, at A15; Linda Allewalt, Page 14
Op-Ed., Recapturing Individual Liberty, Courier-Journal
(Louisville, KY), Nov. 20, 2006, at 7A; Larry P. Goodson,
Winning the Battles but Losing the War?: To Beat the
Terrorists, America Needs to Use Ideas, Images as Well as
Weapons, Baltimore Sun, Nov. 19, 2006, at 1F; Editorial,
Job No. 1 for Congress: Restoring Rights, Wash. Post, Nov.
17, 2006, at A24; Scott Holcomb & Mark Ribbing, War Has
Changed: The Laws of War Must, Too, Christian Sci. Monitor,
Nov. 16, 2006, at 9; Editorial, Spin and Consequences, N.Y.
Times, Nov. 15, 2006, at A26; Carol Rosenberg, Lawsuit
Casts Rumsfeld as War Criminal, Seattle Times, Nov. 15,
2006, at A10; Editorial, Careless Congress: Lawmakers
Passed a Detainee Law of Doubtful Constitutionality. Now
They Expect the Courts to Clean It Up, L.A. Times, Nov. 3,
2006, at A28; Jonathan S. Landay, VP Confirms Use of
Waterboarding, Chi. Trib., Oct. 27, 2006, at C5; Editorial,
From Our Readers: Tortured Constitution, Detroit Free
Press, Oct. 20, 2006, at 14; Erwin Chemerinsky, Will the
Courts Uphold the Constitution?, San Diego Union-Trib.,
Oct. 20, 2006, at B7; Gabriella Blum & Martha Minow,
Op-Ed., The Israeli Model for Detainee Rights, Boston
Globe, Oct. 18, 2006, at A9.[fn5] Page 15
[EDITORS’ NOTE: THIS PAGE CONTAINED FOOTNOTES.]
Page 16
What is not so well known is the fact that the Supreme
Court itself is hostile to lower court habeas litigation.
Vicki C. Jackson, Seductions of Coherence, State Sovereign
Immunity, and the Denationalization of Federal Law, 31
RUTGERS L.J. 691, 707-08 Page 17 (2000). Indeed, it is
hostile to lower court litigation generally. Andrew M.
Siegel, The Court Against the Courts: Hostility to
Litigation as an Organizing Theme in the Rehnquist Court’s
Jurisprudence, 84 TEX. L. REV. 1097, 1117 n. 67 (2006)[fn6]
Page 18 (“the [Supreme] Court has validated or created
innumerable procedural obstacles that habeas petitioners
must scale before bringing the merits of their claims to
the attention of the federal courts”). See, e.g., Teague v.
Lane, 489 U.S. 288 (1989) (restricting the availability of
the writ by holding that habeas petitioners generally may
only assert rights that existed as of the time of their
conviction); see also McCleskey v. Zant, 499 U.S. 469, 493
(1991) (replacing “deliberate bypass” standard for
successive habeas petitioners with stricter “cause and
prejudice” standard). The Supreme Court has expressly held
that Teague analysis is required under AEDPA. Horn v.
Banks, 536 U.S. 266, 272 (2002) (per curiam).
AEDPA states that the filing of a successive petition
requires pre-approval from the appropriate circuit court of
appeals, 28 U.S.C. § 2244(b)(3)(A), and the Supreme
Court has upheld the constitutionality of this restriction
on successive Page 19 habeas petitions. Felker v. Turpin,
518 U.S. 651, 664 (1996). Moreover, the grant or denial of
this application for pre-approval “shall not be appealable
and shall not be the subject of a petition for rehearing or
for a writ of certiorari.” 28 U.S.C. §
2244(b)(3)(E). Emphasizing Congress’ broad authority to
regulate the scope of the writ, the Supreme Court upheld
the constitutionality of the AEDPA’s preclusion of Supreme
Court jurisdiction. Felker, 518 U.S. at 658, 663. See
generally ERWIN CHEMERINSKY, FEDERAL JURISDICTION 171-72
(4th ed. 2003).
Additionally, the Supreme Court recently strengthened the
effect of AEDPA’s one year statute of limitations for the
filing of habeas corpus petitions. See 28 U.S.C. §
2244(d)(1); Mayle v. Felix, ___ U.S. ___, 125 S. Ct. 2562,
2574-75 (2005). It did so, however, by restricting the
ability of habeas petitioners to amend and add claims to a
timely-filed petition. See Mayle, 125 S. Ct. at 2574-75. In
Mayle v. Felix, the Supreme Court addressed a circuit split
on the proper test to analyze amendments to habeas
petitions under Federal Rule of Civil Procedure 15(c).[fn7]
See id. at 2570; Ellzey v. United States, 324 F.3d 521, 526
(7th Cir. 2003); United States v. Espinoza-Saenz, 235 F.3d
501, 504-05 (10th Cir. 2000). Rule 15(c) allows amended
Page 20 claims to “relate back” to an original,
timely-filed pleading if they “arose out of the [same]
conduct, transaction, or occurrence.” Fed.R.Civ.P. 15(c).
This necessarily poses a problem in the context of a habeas
petition, since the “conduct, transaction, or occurrence”
involved in a collateral attack is by definition and
application the constitutionality of the proceedings of the
trial itself. See Harris v. Nelson, 394 U.S. 286, 290-91
(1969) (describing habeas corpus as “the fundamental
instrument for safeguarding individual freedom against
arbitrary and lawless state action” and noting that it has
the “scope and flexibility . . . to reach all manner of
illegal detention [and] . . . to cut through barriers of
form and procedural mazes.”) The Supreme Court has now
rejected this view, breaking down the underlying trial into
“essential predicate[s]” for the purposes of amendments to
habeas petitions, despite the inconsistency between that
approach and the purpose of a habeas petition. See Mayle,
125 S. Ct. at 2564-65 (indirectly comparing a habeas
petition to “run-of-the-mine civil proceedings”); Martin v.
Hubbard, 2006 WL 2073152, *1 (9th Cir. July 26, 2006)
(applying Mayle to hold that the essential predicate of the
amended claim was an interrogation, a tape of which was
introduced at trial). The net effect is further to limit
the claims that may be properly brought before a court in a
habeas petition.
In sum, the Great Writ is great no longer. Page 21
Evans challenges the constitutionality of AEDPA’s habeas
corpus provisions, claiming that the statute’s restrictions
constitute a suspension of the writ, substitute a new
remedial regime that differs from United States
Constitution, Article I, section 9, clause 2 and also
violates the Due Process Clause by failing to protect the
freedom from bodily constraint. Pet. Mem. at 28. Evans also
claims that “Article III prohibits federal court deference
to state court rulings on interpreting and applying federal
law.” Id. These challenges are presented as “distinct,
though related, reasons.” Id. Bereft of controlling
authority or persuasive argumentation, Evans’
constitutional challenges are foredoomed to failure.
AEDPA does not constitute a suspension of the writ. See
Felker, 518 U.S. at 664. Cf. Lindh, 521 U.S. at 344-45
(applying restrictions on scope of habeas to pending
cases). Furthermore, broad congressional authority to
define the scope of the writ defeats the argument that
AEDPA is a new remedial regime that fundamentally differs
from the writ enshrined in Article I of the Constitution.
See Felker, 518 U.S. at 664.
Evans’ final argument that AEDPA violates Article III
because it requires federal court deference to state court
rulings interpreting federal law is deeply flawed. Article
III is not self-effectuating, and therefore state courts
are obligated to apply and enforce federal law. See Printz
v. United States, 521 U.S. 898, 907 (1997) (describing how
the Madisonian Page 22 Compromise made creation of the
lower federal courts optional for Congress); Testa v. Katt,
330 U.S. 386, 389-90 (1947) (reasoning that state courts
are bound to apply federal law and holding otherwise “flies
in the face of the fact that the States of the Union
constitute a nation”); Palmore v. United States, 411 U.S.
389, 400-01 (1973) (stating that before Congress granted
federal question jurisdiction to the federal courts, “state
courts provided the only forum for vindicating many
important federal claims.”).
In the context of habeas corpus, the Supreme Court has made
it clear that state courts should have the first
opportunity to correct constitutional errors made in their
proceedings. Rose v. Lundy, 455 U.S. 509, 518 (1982).
Deference to state court rulings on federal law is
therefore appropriate. See id. (“[I]t would be unseemly in
our dual system of government for a federal district court
to upset a state court conviction without an opportunity to
the state courts to correct a constitutional violation.”).
The following words from Justice Ginsburg, dissenting in
Bush v. Gore, are particularly relevant and insightful:
And not uncommonly, we let stand state-court
interpretations of federal law with which we might
disagree. Notably, in the habeas context, the Court
adheres to the view that “there is `no intrinsic reason
why the fact that a man is a federal judge should make him
more competent, or conscientious, or learned with respect
to [federal law] than his neighbor in the state
courthouse.'” [citations omitted]. Page 23
531 U.S. 98, 136-137 (2000) (Ginsburg, J., dissenting). For
all of the above-stated reasons, Evans has failed to
convince this Court that the relevant habeas corpus
provisions of the AEDPA are unconstitutional.
C. Exhaustion of Federal Claim in State Court
The Commonwealth asserts that Evans’ Claim 3(c) is not
exhausted. Resp. Mem. at 11-12. Claim 3(c) alleges that the
admission at trial of Marvette Neal’s prior inconsistent
statements to the grand jury and detailed statements to the
police amounted to a violation of Evans’ right to
confrontation and due process. Pet. Mem. at 50-52. In
general, a federal court will not entertain an application
for habeas relief unless the petitioner fully has exhausted
his state remedies with respect to every claim contained in
the petition. Rose, 455 U.S. at 518-19.
AEDPA states that “[a]n application for a writ of habeas
corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the state.” 28 U.S.C. §
2254(b)(1). The Supreme Court has held that the “federal
claim must be fairly presented to the state courts.” Picard
v. Connor, 404 U.S. 270, 275 (1971). To determine whether a
habeas petitioner fairly presented this claim, a federal
court in a habeas proceeding must examine the state court
records, id. at 276, and review the exhaustion issue Page
24 de novo. Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir.
2002); Goodrich v. Hall, 448 F.3d 45, 47 (1st Cir. 2006).
In state court, the nature or presentation of the claim
must have been “likely to alert the court to the claim’s
federal nature.” Nadworny v. Fair, 872 F.2d 1093, 1097 (1st
Cir. 1989) (quoting Daye v. Attorney Gen. of New York, 696
F.2d 186, 192 (2d Cir. 1982) (en banc), cert. denied, 464
U.S. 1048 (1984)). While it is difficult to draw bright
lines regarding what constitutes “fair presentment,”
Nadworny, 872 F.2d at 1101 n. 4, it is clear “that the mere
incantation of constitutional buzzwords, unaccompanied by
any federal constitutional analysis, does not suffice to
carry the burden of demonstrating fair presentment of a
federal claim.” Adelson v. DiPaola, 131 F.3d 259, 263 (1st
Cir. 1997); see also Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.
1987) (“oblique” reference to “due process” not enough);
Dyer v. Ponte, 749 F.2d 84, 86-87 (1st Cir. 1984) (“cursory
references” to due process and fourteenth amendment raise
doubts about sufficiency of presentment).
The possible ways of satisfying this obligation include,
but are not limited to: “(1) citing a specific provision of
the Constitution; (2) presenting the substance of a
federal constitutional claim in such manner that it likely
alerted the state court to the claim’s federal nature; (3)
reliance on federal constitutional precedents; and (4)
claiming a particular Page 25 right specifically
guaranteed by the Constitution.” Gagne, 835 F.2d at 7.
While this list is illustrative, “it does not purport to be
exhaustive.” Barresi, 296 F.3d at 52.
Evans’ brief to the Supreme Judicial Court expressly
referred to Claim 3(c) in the heading of Point VI. Both
Evans and the Commonwealth agree that the heading of Point
VI explicitly stated that the admission of Marvette Neal’s
extrajudicial statements were an “abuse of discretion in
violation of the defendant’s right to confrontation and due
process.” Resp. Mem. at 13; Petitioner’s Reply Memorandum
in Support of Petition for Writ of Habeas Corpus [Doc. No.
11] (“Pet. Reply”) at 7 (emphasis added). This reference
alone arguably is enough to satisfy the exhaustion
requirement because Evans claimed a right specifically
guaranteed by the United States Constitution. See Gagne,
835 F.2d at 7. There are, however, at least two additional
reasons why Evans’ claim is, in fact, exhausted.
First, Evans’ legal analysis, as communicated to the
Supreme Judicial Court, relied on Commonwealth v. Daye, 393
Mass. 55, 74 (1984), which in turn had relied on the
Supreme Court’s federal constitutional analysis in
California v. Green, 399 U.S. 149, 170 (1970). This
constitutes presentment of the federal constitutional issue
because Evans both claimed a right guaranteed by the
Constitution and relied on a state case that specifically
invoked federal constitutional precedent. See Page 26
Goodrich, 448 F.3d at 48 (finding exhaustion of a federal
claim where a habeas petitioner “primarily relied . . . on
a state case invoking federal due process”).
Second, the closing paragraph of Point VI argued that the
admission of Neal’s testimony was not “harmless beyond a
reasonable doubt” because “the defendant’s right[] to
confrontation” was violated. To support the argument, Evans
included the following citation: “Commonwealth v. Vinnie,
428 Mass. 161, 164 (1998), citing Chapman v. California, 386
U.S. 18, 24 (1967).” This citation likewise qualifies as
reliance on a federal constitutional precedent and in all
probability alerted the Supreme Judicial Court to the
federal nature of the claim. See Gagne, 835 F.2d at 7.
Indeed, Evans never made a separate argument based on the
distinctive language or history of the cognate state
constitutional provisions. See Nadworny v. Fair, 872 F.2d
1093, 1099 (1st Cir. 1989) (distinctive “state-law
formulations should most often be construed as raising
purely state-law issues”). Since Evans’ state
constitutional claim was “indistinguishable from one
arising under federal law,” it is exhausted. Id. at
1099-1100 (citing Picard, 404 U.S. at 277).
D. The Supreme Judicial Court’s Determination of the Facts
Evans alleges that the Supreme Judicial Court applied
improper standards in determining the facts upon which its
legal analysis was grounded. Pet. Mem. at 1-2. Federal
habeas courts Page 27 must grant deference to state court
factual determinations. 28 U.S.C. § 2254(e)(1). “The
presumption of correctness is equally applicable when a
state appellate court, as opposed to a state trial court,
makes a finding of fact.” Norton, 351 F.3d at 6 (citing
Sumner v. Mata, 455 U.S. 591, 593 (1982))
To satisfy the statute, Evans must show that the state’s
factual determination was objectively unreasonable.
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing
Williams, 529 U.S. at 399). Objective unreasonableness is
not merely an incorrect or erroneous decision. Williams,
529 U.S. at 410; Ward v. Sternes, 334 F.3d 696, 703-04 (7th
Cir. 2003) (“[P]etitioner’s challenge to a decision based
on a factual determination will not succeed if the
petitioner merely evidences that the state court committed
error. Instead, he must further establish that the state
court committed unreasonable error.”); Dennis v. Mitchell,
354 F.3d 511, 518 (6th Cir. 2003) (“[A] federal habeas court
may not grant habeas relief under § 2254(d)(2)
merely because it disagrees with a state trial court’s
factual determination.”).
Moreover, section 2254(d)(2) should be interpreted in
conjunction with section 2254(e)(1), which specifies that
“a determination of a factual issue made by a State court
shall be presumed to be correct,” and that “[t]he applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); Sanna v. Dipaolo, 265 F.3d 1, 7 (1st
Cir. 2001); see also Miller-El, Page 28 537 U.S. at 341
(noting that to prevail under section 2254(d)(2), a habeas
petitioner must both disprove the factual finding by clear
and convincing evidence and demonstrate that the state
court’s factual determination was objectively
unreasonable).
A habeas petitioner can overcome a state court’s factual
findings by showing that they were based on an unreasonable
determination of the facts in light of the evidence. 28
U.S.C. § 2254(d)(2); Mastracchio v. Vose, 274 F.3d
590, 597-98 (1st Cir. 2001). This analysis applies only to
determinations of basic, primary, or historical facts.
Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002).
“Inferences, characterizations of the facts and mixed
fact/law conclusions are more appropriately analyzed under
the `unreasonable application prong.'” Id.
First, Evans alleges that the Supreme Judicial Court
improperly applied the standard for insufficient evidence
announced in Jackson v. Virginia, 443 U.S. 307 (1979),
rather than using the standard for determining prejudice
under Strickland v. Washington, 466 U.S. 668 (1984). Pet.
Mem. at 54-55. According to Evans, the Supreme Judicial
Court incorrectly determined the facts in a light more
favorable to the prosecution, Jackson, 443 U.S. at 319,
rather than considering the totality of the evidence,
Strickland, 446 U.S. at 695. Id.
Evans has failed, however, to point to any specific facts
relied upon by the Supreme Judicial Court that were wrong.
Instead, Evans has conflated this argument with his
ineffective Page 29 assistance of counsel claim. Pet. Mem.
at 54-57 (criticizing the state court for “ignoring the
many inconsistencies and anomalies in the testimony of
prosecution witnesses and overlooking exculpatory evidence
introduced by the defense at trial”). Under Strickland,
however, “a court should presume, absent challenge to the
judgment on grounds of evidentiary insufficiency, that the
. . . jury acted according to the law.” 466 U.S. at 694.
Evans has not challenged the sufficiency of the evidence.
Therefore, the facts recited by the Supreme Judicial Court
necessarily must harmonize with the jury verdict. See id.
For the most part, they do.
It is true that the references to the involvement of Brown
and Tinsley in the murder in the fact section of the
Supreme Judicial Court decision, Evans, 439 Mass. at 187
— to the extent that they cast these two as joint
venturers with Evans and John — may have been an
unreasonable application of Strickland in light of the jury
acquittal. These references are, however, essentially
irrelevant to Evans’ habeas claim. Furthermore, the
references to the involvement of Brown and Tinsley did not
taint the Supreme Judicial Court’s analysis of Evans’
ineffective assistance of counsel claim. Therefore, even if
they presented Strickland error, it was harmless beyond a
reasonable doubt. Chapman, 386 U.S. at 24.
E. Evidentiary Rulings at Trial Page 30
Evans alleges that the state court’s admission of testimony
and evidence from Alton Clarke and Marvette Neal violated
Evans’ constitutional rights of confrontation and due
process. Pet. Mem. at 44.
1. Testimony of Alton Clarke
Evans was restricted in his cross-examination of Alton
Clarke and not allowed to ask about specific charges then
pending against him in Suffolk County. Pet. Mem. at 45. In
his discretion, the trial judge limited the description of
the charges as “serious felony charges” without naming the
specific crimes, which included aggravated rape, kidnaping,
and assault and battery with a dangerous weapon. See Pet.
Mem. at 45.[fn8] Clarke was in Walaikum’s during the murder
and witnessed the shooting. Pet. Mem. at 45; Evans, 439
Mass. at 187. He made a 911 phone call at the time, but did
not come forward to the police until nine months after the
shooting — two months after he was indicted on the
rape, kidnaping, and assault charges. Pet. Mem. at 11, 45;
Evans, 439 Mass. at 187.
When there is evidence of bias, a defendant has a
constitutional right to cross-examine a witness about the
issue. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
The trial judge retains discretion to limit the scope of
cross-examination Page 31 “based on concerns about, among
other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Id.; see also
Davis v. Alaska, 415 U.S. 308, 316-17 (1974); United States
v. Abel, 469 U.S. 45, 50 (1984) (explaining that Davis v.
Alaska “holds that the Confrontation Clause of the Sixth
Amendment requires a defendant to have some opportunity to
show bias on the part of a prosecution witness.”) (emphasis
added).
The trial judge in this case limited the evidence of Alton
Clarke’s pending charges in response to the prosecutor’s
argument that the aggravated rape charges would be
“disturbing and highly prejudicial.” Trial Transcript Vol.
VI p. 75. Evans was able adequately to explore the nature
of Clarke’s bias and motive to cooperate with the
prosecution arising from the serious felony charges without
referring to the specific charge. Evans, 439 Mass. at 189.
“Clarke testified emphatically that he was promised nothing
and he expected nothing.” Id. This decision was not an
abuse of discretion and was neither contrary to nor an
unreasonable application of clearly established Supreme
Court precedent.
2. Testimony of Marvette Neal
Similarly, the state court’s admission of Marvette Neal’s
prior inconsistent statements to the grand jury and
detailed statements to the police was neither contrary to
nor an Page 32 unreasonable application of Supreme Court
precedent. See 28 U.S.C. § 2254(d).
When called to the witness stand by the prosecution,
Marvette Neal testified that he did not remember seeing the
Evans brothers at Walaikum’s on the night of the shooting,
that he was unable to identify the shooters, and that he
never identified Jimmy Evans to the police as Jackson’s
assailant. Pet. Mem. at 50-51.
Over objection, the prosecutor was permitted to introduce
Neal’s grand jury testimony in which he stated that he saw
the Evans brothers inside Cortee’s and Walaikum’s on the
night of the shooting. Pet. Mem. at 51. The grand jury
testimony was admitted under the “past recollection
recorded” exception to the hearsay rule. Evans, 439 Mass.
at 189-90. The court allowed the admission of this
testimony as substantive evidence. Id. at 189.
Furthermore, the prosecution was allowed to introduce the
testimony of Detective Kenneth Dorch who stated that about
three weeks after the shooting, Neal made a detailed
statement about the shooting in which he identified Evans
and his brother as the shooters. Pet. Mem. at 51. Dorch’s
testimony included evidence that Neal made a photo
identification of Evans and his brother as the shooters.
Pet. Mem. at 51. The judge instructed the jury six times
during Dorch’s testimony that the evidence contained
therein could not be considered substantively, but only for
evaluating the credibility of Neal. Evans, 439 Mass. at
191. Page 33
a. Neal’s Grand Jury Testimony
The Supreme Judicial Court ruled it was error to admit
Neal’s grand jury testimony as past recollection recorded
because the fourth element of the rule was not met. Evans,
439 Mass. at 190 (stating that “Neal had no recollection of
what he had told the grand jury and there was no evidence
that he adopted the minutes of his grand jury testimony
when his memory of events was fresh.”). After concluding
that Neal’s grand jury hearsay testimony was erroneously
admitted, the Supreme Judicial Court examined its impact
for prejudicial error under Commonwealth v. Martinez, 431
Mass. 168, 176, 176 n. 7 (2000); Evans, 439 Mass. at
190-91. Ultimately, the Supreme Judicial Court ruled “no
prejudice,” Evans, 439 Mass. at 191, because “Neal’s grand
jury testimony about the defendants’ presence inside both
establishments was merely cumulative of other testimony.”
Id. (enumerating the other testimony that placed Evans
inside both Cortee’s and Walaikum’s including Evans’ own
admissions on the stand).
Evans alleges that the Supreme Judicial Court’s use of the
Martinez “prejudicial error” standard is contrary to the
holding of Chapman v. California, 386 U.S. 18, 24 (1967)
(holding that before a federal constitutional error can be
held harmless the reviewing court must be able to declare a
belief that it was harmless beyond a reasonable doubt). See
Pet. Mem. at 61. Page 34
In this instance, it must be remembered, Neal testified and
was available for cross-examination. The Supreme Court has
stated that “the Confrontation Clause guarantees only `an
opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent the defense might wish.'” United States v.
Owen, 484 U.S. 554, 559 (1988) (quoting Kentucky v.
Stincer, 482 U.S. 730, 739 (1987)). Since Neal was
available for cross-examination and stated that he did not
remember what he had testified to the grand jury but
thought he had been truthful at the time, Evans cannot
successfully argue that his Sixth Amendment right to
Confrontation was violated. See id. (ruling that the
constitutional right to cross-examine is sufficiently
established when a past belief is introduced, but the
witness is unable to recollect the reason for the past
belief, so long as “other means of impugning the belief are
available.”).
On the stand, Neal testified that he denied telling the
police that Evans and his brother were the shooters. Trial
Transcript Vol. IV, p. 193-95. Evans’ counsel was then able
to cross-examine the witness further to clarify that he
identified photographs as Evans and John, but did not
identify them as the shooters. Id. at 198-99. Under these
circumstances, where Evans had an opportunity for effective
cross-examination, the Supreme Page 35 Judicial Court’s
decision was neither contrary to nor an unreasonable
application of United States v. Owen.
Even were the Supreme Judicial Court’s harmless error
analysis contrary to or an unreasonable application of
Chapman, its resolution of Evans’ appeal ought not be
disturbed since Chapman is not the controlling case. The
Supreme Court has held that a less onerous standard of
review should apply to claims of trial type constitutional
error raised on habeas review. See Cruz v. New York, 481
U.S. 186, 193-94 (1987) (stating that Confrontation Clause
violations are trial type error); see also Sinnott v.
Duval, 139 F.3d 12, 14-15 (1st Cir. 1998). Under this
standard, Evans is not entitled to habeas relief for the
constitutional error unless it had a “substantial and
injurious effect or influence in determining the jury’s
verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637
(1993); Kotteakos v. United States, 328 U.S. 750, 776
(1946); see also Sinnott, 139 F.3d at 14-15 (stating that
the “Supreme Court has made it clear that on collateral
review of habeas cases involving trial error, the test for
harmless error” is that set forth in Brecht).
Neal’s grand jury testimony that he saw Evans in Walaikum’s
on the night of the shooting was cumulative of that of
other witnesses who so testified. Marcello Holliday saw
Evans enter Walaikum’s. Trial Transcript Vol. III, pp. 41,
44-48. Alton Clarke testifed that the two shooters entered
the driver and front passenger’s seats of the Lexus
automobile, and Evans Page 36 admitted getting into the
passenger side upon leaving the scene. Id. at Vol. VI, pp.
85-86, 89-90 & Vol. IX, P. 21. Thus, the admission of
Neal’s grand jury testimony, in which he claimed to have
seen Evans and his brother in Walaikum’s on the night of
the murder, did not have a substantial and injurious effect
on the jury’s verdict.
b. Testimony of Detective Dorch
Evans also argues that the admission of Detective Dorch’s
testimony as impeachment evidence was a violation of his
rights to Confrontation and Due Process. Pet. Mem. at
50-51. Prior to Dorch’s testimony, the judge instructed the
jury that Neal’s prior statement could not be considered
evidence of what actually happened on the night of the
shooting, but only for evaluating the credibility of Neal.
Trial Transcript Vol. V, pp. 14-15.
The admission of impeachment testimony through prior
inconsistent statements is an issue of state evidentiary
law, and errors of state law do not provide a basis for
federal habeas corpus relief. Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780
(1990). It is not the province of a federal habeas court to
reexamine state court determinations of state law
questions. Lewis, 497 U.S. at 780-81. A federal court may
issue a writ of habeas corpus only when a conviction
violates the constitution, laws or treaties of the United
States. 28 U.S.C. §§ 2241, 2254; Estelle, 502
U.S. at 67-68. Page 37 “Even if an error of state law
could be sufficiently egregious to amount to a denial of
equal protection or of due process of law guaranteed by the
Fourteenth Amendment,” a federal court may not issue a writ
to redress such a deprivation if the claims are merely
ancillary to perceived errors of state law. See Pulley v.
Harris, 465 U.S. 37, 41 (1984).
The claim regarding Detective Dorch’s testimony is governed
by state evidentiary law and, therefore, does not provide a
proper basis for federal habeas relief. See Estelle, 502
U.S. at 67-68; Lewis, 497 U.S. at 780. Even if we were to
evaluate this claim under Supreme Court precedent, it is
clear that prior inconsistent statements are admissible to
impeach a witness’s testimony. United States v. Hale, 422
U.S. 171, 176 (1975). When Neal testified on
cross-examination that he never saw Evans with a gun and
never saw him shoot anyone, this opened the door to
impeachment through Dorch’s testimony of Neal’s prior
statements. Evans, 439 Mass. at 192. There was no error in
the admission of Dorch’s testimony and, therefore, it was
neither an unreasonable application of nor did it result in
a decision that was contrary to clearly established federal
law.
F. Ineffective Assistance of Counsel
Evans’ ineffective assistance claim is governed by the
principles established in Strickland v. Washington, 466 U.S.
668 (1984). He must show that counsel’s performance fell
below an Page 38 objective standard of reasonableness and
that the sub-standard performance prejudiced him —
that is, but for counsel’s errors there is a reasonable
probability that the result of the trial would have been
different. See id. at 687-88, 694. Evans has not met this
burden.
Evans claims that the Supreme Judicial Court’s
determination that trial counsel was not ineffective for
his failure to retain an investigator and to hire forensic
experts is an unreasonable application of the Strickland
standard for determining ineffective assistance of counsel.
Pet. Mem. at 31-43. Evans also claims that the Supreme
Judicial Court failed to apply the proper standard for
prejudice and therefore the decision was also contrary to
Strickland in that respect. Pet. Mem. at 55-61; see also
supra Part D.
Evans states that his counsel completely failed to
investigate the evidence or consult with a single forensic
expert. Pet. Mem. at 34. He argues that his trial “hinged
so critically on forensic evidence.” Pet. Mem. at 41. A
close analysis of the record reveals that these statements
are not true.
First, contrary to Evans’ claim, his trial counsel did not
completely fail to investigate the evidence. Evans’ brother
John had his lawyer hire an investigator to examine the
evidence, and Evans’ lawyer had access to all of these
findings. Affidavit of Trial Counsel, Phillip W. Halloran,
Esq. (“Halloran Aff.”) at 3 Page 39 in Petitioner’s
Appendix E of Pet. Mem. at 64a. With regard to different
types of experts, trial counsel stated in his affidavit
that he “was not aware at the time of any advantage in
consulting with” any of these experts. Halloran Aff. at
1-2. This reflects trial counsel’s reasonable belief that
such tests would not have furthered the defense in any
significant way.
Second, only the forensic tests introduced by the
Commonwealth linked the guns from the Lexus to the shooting
at Walaikum’s. Significantly, Evans does not challenge this
evidence. Instead, Evans speculates that a blood expert
could have found that Tinsley was the shooter by analyzing
blood spatters found on his coat. Pet. Mem. at 35. At
trial, however, the prosecutor admitted that the blood
found on Tinsley’s coat could have been the victim’s. In
fact, most of the blood was on the back of Tinsley’s coat,
which hardly suggests that it got there while Tinsley was
shooting the victim. In short, “the blood evidence was not
a substantial part of the Commonwealth’s case.” Evans, 439
Mass. at 201.
Evans also theorizes that a ballistics expert could have
examined the ordnance and firearms and a criminalist could
have established defects in how the police secured the
scene. Pet. Mem. at 34-35.
Evans admitted that he discharged the Ruger three times in
a downward direction while standing at the entrance to
Walaikum’s, Page 40 Evans, 439 Mass. at 201, and states
that all of the evidence found at the scene “substantially
supported” his story. Pet. Mem. at 39. Of course, given the
restrictive dimensions of the restaurant and the fact that
the victim was lying on the floor when he was shot,
additional evidence corroborating Evans’ story would have
been entirely consistent with the Commonwealth’s theory
that he was aiming at the victim and not firing
accidentally.
Specifically, all of the shell casings and bullet
fragments from the Ruger were found outside or near the
front door. Id. at 39-40. A spent bullet from the Ruger was
found in the refrigerator behind the front counter toward
the right side of the snack bar. Id. at 40. There was also
a bullet fragment with blood on it found on the rug inside
the restaurant. Id.
The Supreme Judicial Court asserted that expert analysis
would not have been of any assistance because the jury
could have inferred that the bloody bullet found on the rug
had “passed through the victim’s body” and that “there was
no evidence that the bullet had been moved.” Evans, 439
Mass. at 201. Evans states that “[t]hese assertions are
patently unreasonable.” Pet. Mem. at 36. Yet, in his brief
a few pages later, he can only speculate that “in the
absence of any evidence that the police had properly
secured the crime scene, the location of a bullet fragment
on the rug and a shell casing inside the restaurant . . .
was consistent with a patron’s or police officer’s
accidentally kicking or Page 41 otherwise moving it after
the incident.” Id. at 40. Evans cannot prevail on this
claim since he has failed to put forth any evidence
demonstrating how an expert could support this assertion.
Finally, Evans asserts that a fingerprint expert could
have examined the firearms and undermined the prosecution’s
case. Id. at 34-35. The Supreme Judicial Court found that
independent fingerprint testing of the guns would not have
produced anything better for the defense:
There is no reason to believe that the Commonwealth’s
fingerprint expert was wrong in concluding that there was
insufficient fingerprint detail on either gun to make an
identification. Nor is there reason to believe that he was
wrong in concluding that in only about two per cent of
cases do guns yield identifiable fingerprints, and in
cases where prints can be identified, the age of the print
cannot be determined. Thus, fingerprint evidence also was
not a substantial part of the Commonwealth’s case.
[citation omitted] Even if fingerprint evidence could show
that Tinsley had once touched the Heckler & Koch handgun,
it would not prove that John had not also touched it.
Given the Commonwealth’s eyewitness testimony that John
had fired the Heckler & Koch, and Jimmy’s admission that
he fired the Ruger at Walaikum’s, the Commonwealth’s case
against both John and Jimmy would not have been
undermined.
Evans, 439 Mass. at 202. Where the expert testimony
suggested by Evans would not have strengthened his defense,
counsel’s failure to pursue it did not constitute
ineffective assistance of counsel.
Evans’ final argument that the Supreme Judicial Court
failed to consider gaps and inconsistencies in the
Commonwealth’s case Page 42 does not prevail because his
counsel ably impeached the eyewitnesses on
cross-examination and the jury was well aware of the
inconsistencies. See, e.g., Trial Transcript vol. III, pp.
89-106 (cross-examination of Marcello Holliday); vol. IV,
pp. 198-99 (cross-examination of Marvette Neal); and vol.
VI, pp. 137-53 (cross-examination of Alton Clarke).
In analyzing Evans’ ineffective assistance claim, the
Supreme Judicial Court concluded in sum that “there was no
reason for counsel to believe that any testing would
benefit the defense or that any hoped for results would
likely have influenced the jury’s conclusion.” Evans, 439
Mass. at 201. This statement effectively applies the
Massachusetts’ standard of review for evaluating first
degree murder cases under Massachusetts General Laws
chapter 278, section 33E. Since this standard is more
favorable to Evans than the constitutional standard for
evaluating ineffective assistance claims, he cannot meet
his burden of establishing deficient counsel and prejudice.
See Commonwealth v. Wright, 411 Mass. 678, 682 (1992); see
also Commonwealth v. Graham, 431 Mass. 282, 289 (2000)
(stating that under section 33E, the Supreme Judicial Court
reviews counsel’s omissions to determine whether they were
erroneous and likely to have influenced the jury’s
conclusions).
Moreover, the Supreme Judicial Court’s recitation of facts
is entitled to a presumption of correctness under 28
U.S.C. § 2254(e)(1) and must be rebutted by clear and
convincing evidence. Page 43 Sanna, 265 F.3d at 7. Evans’
assertion that the jury could have drawn opposite
inferences from the evidence presented does not rebut the
presumption of correctness and does not demonstrate that
the Supreme Judicial Court’s decision was unreasonable. See
Dennis v. Mitchell, 354 F.3d 511, 518 (6th Cir. 2003) (“[A]
federal habeas court may not grant habeas relief under
§ 2254(d)(2) merely because it disagrees with a state
trial court’s factual determination.”).
Since additional expert testimony from Evans would not
assist the defense, his ineffective assistance of counsel
claim must fail. Prejudice will not be presumed where there
was good reason for trial counsel’s failure to seek further
testing, i.e., his time was better spent preparing to
cross-examine eye witnesses who placed his client at the
scene with a gun. As the First Circuit noted in Genius v.
Pepe, 147 F.3d 64, 67 (1st Cir. 1998):
Even when . . . the costs of an expert are borne by the
state, pursuing any line of inquiry involves some use of
time and distracts in some degree from other possible
defenses that might be pursued. As the Eleventh Circuit
has said, “counsel . . . is not required to pursue every
path until it bears fruit or until all available hope
withers.” Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir.
1984), cert. denied, 469 U.S. 1181 (1985).
Therefore, counsel’s decision not to consult with experts
regarding the blood, ballistics, or fingerprint evidence was
not ineffective assistance of counsel. Page 44
Looking at the evidentiary record as a whole, forensic
evidence pointing to Tinsley as a shooter would not have
led to a different result since Evans admitted to being at
the entrance to Walaikum’s when his gun went off.
Eyewitnesses at the scene testified that there were two
shooters and unchallenged ballistic evidence recovered from
both inside and outside the restaurant included shell
casings and bullet fragments from the two guns thrown out
of the Lexus. Evans, 439 Mass. at 187-88.
The Supreme Judicial Court’s decision regarding Evans’
ineffective assistance of counsel claim was neither contrary
to nor an unreasonable application of Strickland and its
progeny.
G. Evidentiary Hearing
Under 28 U.S.C. § 2254(e)(2):
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
Page 45
Id. Accordingly, it is necessary to trace Evans’ procedural
development of the ineffective assistance claim through the
state court.
After trial, Evans filed a motion for a new trial in which
he raised ineffective assistance of counsel based on a
failure to consult with certain forensic experts. In
connection with this motion, Evans also filed a series of
motions for funds to hire such experts for the purpose of
further developing his ineffective assistance claim. On
September 10, 1999, Justice Elizabeth Donovan denied the
motion for funds, and on December 30, 1999 she denied the
motion for a new trial. Evans appealed both denials, and on
September 27, 2001, Justice Judith Cowin issued an order
staying the Petitioner’s appeal and remanding for a new
exercise of judicial discretion in light of a recent
amendment to Massachusetts Rule of Criminal Procedure
30(c)(5). Justice Donovan subsequently denied the motion
again on January 3, 2002. After a non-evidentiary hearing
on February 14, 2002, Justice Donovan again issued another
order denying the motion for funds on March 1, 2002. A
motion for reconsideration and clarification was denied on
April 11, 2002. Evans filed a notice of appeal of these
post-remand orders and moved to consolidate them with his
direct appeal.
Although the factual basis for the ineffective assistance
claim was never developed in state court, Evans cannot be
said to have failed in an attempt to develop the claim
under section Page 46 2254(e)(2). Several circuits have
held that section 2254(e)(2) will not preclude an
evidentiary hearing in federal court where an applicant
diligently sought to develop the factual basis for a claim,
but was denied the opportunity to do so by the state court.
See McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.
1998); Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.
1997), cert. denied, 522 U.S. 990 (1997); Jones v. Wood,
114 F.3d 1002, 1013 (9th Cir. 1997); Love v. Morton, 112
F.3d 131, 136 (3d Cir. 1997). This means that section
2254(e)(2) only applies where a petitioner has made a
decision not to introduce evidence when he had an
opportunity to do so. See Jones, 114 F.3d at 1013. In this
case, Evans did not relinquish such an opportunity or
neglect to seek it, and, therefore, his request for an
evidentiary hearing must be analyzed under a different
standard.
The pre-AEDPA standard regarding federal habeas corpus
evidentiary hearings is governed by Keeney v. Tamayo-Reyes,
504 U.S. 1 (1992) and Townsend v. Sain, 372 U.S. 293 (1963),
both of which were superseded in part by ADEPA. Under this
standard, an evidentiary hearing may be conducted only if
the habeas petitioner alleges facts which, if proved, would
entitle him to relief and the state court — for
reasons beyond the control of petitioner — never
considered the claim in a full and fair hearing. Keeney,
504 U.S. at 11; Townsend, 372 U.S. at 312. Evans Page 47
has not alleged sufficient facts to warrant an evidentiary
hearing.
As stated by the Supreme Judicial Court and herein, the
Commonwealth’s case relied primarily on eyewitness testimony
and the unchallenged link between the murder and the two
handguns tossed from the Lexus. The Commonwealth’s case did
not rely heavily on blood, forensic, ballistics, or
fingerprint evidence. In fact, the Commonwealth’s experts
produced no conclusive evidence linking Evans to the crime
and, more importantly, he has failed to show that any
potential experts would produce evidence that would be
significantly exculpatory.
In his Reply Memorandum, Evans contends that the above
argument is “fundamentally flawed” and cites Holmes v.
South Carolina, ___ U.S. ___, 126 S. Ct. 1727 (2006) for
the proposition that “the true strength of the
prosecution’s proof cannot be assessed without considering
[the defendant’s] challenges to the reliability of the
prosecution’s evidence.” Pet. Reply at 11-12; Holmes, 126
S. Ct. at 1734. This case is readily distinguishable.
First, Holmes involved a direct appeal to the Supreme
Court, whereas the case at bar implicates a collateral
attack on a criminal conviction. This is significant
because review is more limited in the habeas context than
it is in the realm of a direct appeal. See Daniels v.
United States, 532 U.S. 374, 381 (2001); Reed v. Farley,
512 U.S. 339, 359 (1994). Additionally, Evans has
misconstrued the Commonwealth’s argument and seems to Page
48 misunderstand the holding in Holmes. Specifically, in
Holmes, the prosecution submitted overwhelming evidence of
guilt including palm-print, blood, fiber, and DNA evidence
that affirmatively linked the defendant to the crime.
Holmes, 126 S. Ct. at 1730. The trial court precluded the
defendant from introducing potentially exculpatory third
party culprit evidence. Id. In vacating and remanding the
conviction, the Supreme Court stated that the defendant was
constitutionally entitled to present a “complete defense”
including all probative evidence tending to undermine the
strength of the state’s forensic evidence. Id. at 1729,
1735.
The difference in this case, however, is that the
Commonwealth did not rely heavily on forensic evidence,
whereas the gravamen in Holmes was forensic evidence. Evans
wants to test the strength of evidence that the
Commonwealth concedes is already weak. Further, even if
additional evidence could prove definitively that Tinsley
was one of the shooters, this does not help Evans because
the eyewitnesses stated there were two shooters. Evans has
already admitted that he discharged the Ruger at the
entrance to Walaikum’s, and a bullet fragment fired from
the Ruger was found on a rug in the middle of the floor.
Therefore, Evans has failed to fulfill the standard under
Keeney/Townsend. The merits of this habeas petition can be
decided on the record, and Evans is not entitled to an
Page 49 evidentiary hearing because he has not established
that the failure to develop his ineffective assistance of
counsel claim actually prejudiced his case.
IV. CONCLUSION
Accordingly, Evans’ petition under 28 U.S.C. § 2254
for Writ of Habeas Corpus [Doc. No. 1] is DENIED.
SO ORDERED. [fn1] The description of the facts is based on
the state court findings, which are presumed to be correct.
See 28 U.S.C. § 2254(e)(1). It ought be noted that
Robert Brown (“Brown”) and Ronald Tinsley (“Tinsley”) also
were indicted for involvement in the murder. Since these
two individuals were acquitted, the jury could not have
found that they participated in a joint venture. See infra
Part D for a more detailed discussion of the Supreme
Judicial Court’s discussion of the facts.
[fn2] Congress intended this law immediately to oust the
district courts of jurisdiction over pending proceedings,
thus wasting approximately $25,000,000 in public monies.
Enwonwu, 376 F. Supp. 2d at 84.
[fn3] See Khan v. Bush, 1:06-CV-01690 (D. D.C. Sept. 29,
2006) (Walton, J.); see also Andrew Cohen, Feds Want to
Keep Torture a Secret (CBS special report Nov. 14, 2006),
http://www.cbsnews.com/stories/2006/11/14/opinion/courtwatc
available at h/main 2180095.shtml.
[fn4] It would be difficult to overstate the moral force of
the Hamdan decision (or the need for the Great Writ):
[O]n June 29, 2006. . . . the [Supreme] Court said
something profound about America. A man with a
fourth-grade education from Yemen, accused of conspiring
with one of the world’s most evil men, sued the most
powerful man in the nation (if not the world), took his
case to the highest court in the land, and won. The
Court’s profound commitment to the rule of law is a beacon
for other countries around the world. In no other country
would such a thing be possible.
The Hamdan decision reflects the genuine promise of
America — a promise embodied in the words of Justice
Rutledge, dissenting in the last great military
commission case, In re Yamashita [327 U.S. 1 (1967)]:
More is at stake than General Yamashita’s fate. There
could be no possible sympathy for him if he is guilty of
the atrocities for which his death is sought. But there
can be and should be justice administered according to
law. In this stage of war’s aftermath it is too early for
Lincoln’s great spirit, best lighted in the second
inaugural, to have wide hold for the treatment of foes. It
is not too early, it is never too early, for the nation
steadfastly to follow its great constitutional traditions,
none older or more universally protective against
unbridled power than due process of law in the trial and
punishment of men, that is, of all men, whether citizens,
aliens, alien enemies or enemy belligerents. It can become
too late.
This long-held attachment marks the great divide between
our enemies and ourselves. Theirs was a philosophy of
universal force. Ours is one of universal law, albeit
imperfectly made flesh of our system and so dwelling among
us. Every departure weakens the tradition, whether it
touches the high or the low, the powerful or the weak, the
triumphant or the conquered. [Id. at 41-42 (Rutledge, J.,
dissenting)]
In 1956, a young former law clerk to Justice Rutledge
quoted these very words in a book chapter about his former
boss. [John Paul Stevens, Mr. Justice Rutledge, in MR.
JUSTICE 177, 199-200 (Allison Dunham & Philip B. Kurland
eds., 1956)]. His name was John Paul Stevens. And exactly
fifty years later, he made good on Justice Rutledge’s
promise.
In due course, each of us will be called upon to make
Justice Rutledge’s promise more of a reality. . . . Courts
can continue the Hamdan tradition of carefully
scrutinizing executive branch claims of speed and dispatch
and policing treaty interpretations that go beyond the
pale. The President and Congress both must come to realize
that the Constitution is our most sacred document, not a
document of convenience. It demands hard study and
faithful adherence to its text, purpose, and structure.
Neither the Court nor those who stand up for these basic
rights should be accused of “coddling terrorists.” In
fact, there is no tradition more central to the American
experiment, or more critical to its continuing power to
inspire.
Neal Kumar Katyal, Comment: Hamdan v. Rumsfeld: The Legal
Academy Goes to Practice, 120 HARV. L. REV. 65, 122-23
(2006).
[fn5] Using extensive polling data, Frederick Schauer
demonstrates convincingly that during the entire 2005
Supreme Court term, “not much besides Hamdan was
particularly salient to the public or to its elected
representatives.” Frederick Schauer, Foreword: The Court’s
Agenda — And the Nation’s, 120 HARV. L. REV. 5, 64
(2006).
Polling, however sophisticated, is, of course, only
sampling. Assuming most people today receive their news
over the internet, the following provides a look at actual
web usage over time on the day the Supreme Court issued the
Hamdan decision (June 29, 2006) and on the day Congress
nullified it with the Military Commissions Act (The
President signed the legislation on October 19, 2006).
GRAPH
Akamai Net Usage Index: News:
http://www.akamai.com/html/technology/nui/news/index.html
(last visited Nov. 29, 2006). The generalized wave form is
normal. It reflects North American web usage and sleep
patterns as North America is by far the greatest user of
the internet. It is the spikes that are significant. A
knowledgeable interpreter reads the data this way:
June was a big month for Web traffic, with World Cup
soccer driving most of the attention. Significant dates in
June were:
June 12th — US played Czech Republic in 1st Round
of World Cup resulting in peak of 4,733,201 visitors per
minute, occurring at 2 p.m.
June 22nd — US was eliminated by Ghana at 12 p.m.
(noon), resulting in largest traffic spike to date
recorded by our index of 7,283,584 v/min. . . .
[O]n the 29th, there is some “peakiness” around 10 a.m.
ET and 2 p.m. ET, but nothing discernable. Comparatively,
it was a fairly standard day.
During [the October 16-19] timeframe [sic], escalating
violence in Iraq had dominated the news, as well as the
U.S. confirming No. Korea’s nuclear testing. The
individual spike late on the 16th had to do with Monday
Night Football. The morning of the 16th also received high
traffic following an earthquake in Hawaii. The 17th was
certainly higher than normal, but hard to decipher a
particular event. Oct. 19th peaked around violence in Iraq
(we believe). Not on here, but of note . . . the Cory
Lidle plane crash was October’s largest traffic day
(10/11), recording 4,598,917 visitors/minute at 2:45 p.m.
E-mail from Jeffrey W. Young, Akamai, to Marie Bell,
Judicial Assistant (Nov. 29, 2006) (on file in chambers).
It appears clearly that matters affecting their
Constitution do not immediately register on the
consciousness of the American people. Not even a blip.
[fn6] This brilliant, detailed, and comprehensively
researched article deserves a wider audience. It provides a
partial answer to one of the most pressing issues of our
time.
The American Jury system is withering away. This is the
most profound change in our jurisprudence in the history
of the Republic. As district judges, we ought be in the
forefront of a national debate concerning this matter. We
are not. In fact, we operate as though we don’t much care.
William G. Young, An Open Letter to U.S. District Judges, 50
The Federal Lawyer 30, 30 (July 2003) [hereinafter Open
Letter]. See Kirk W. Schuler, Note, ADR’s Biggest
Compromise, 54 DRAKE. L. REV. 751, 758-64, 766-69, 781-89
(2006) (endorsing this thesis). In fact, “[m]any judges . .
. do not like the very processes of adjudication with which
they work on a daily basis.” Judith Resnik, For Owen M.
Fiss: Some Reflections on the Triumph and the Death of
Adjudication, 58 U. MIAMI L. REV. 173, 193 (2003). If the
Supreme Court itself is hostile to litigation and is, to
use Professor Marc Galanter’s phrase, “turn[ing] against
[the] law,” Marc Galanter, The Turn Against Law: The Recoil
Against Expanding Accountability, 81 Tex. L. Rev. 285, 285
(2002), then it is not surprising that we inferior courts
“have lost focus on our prime mission.” Open Letter at 30.
For a classic example, consider the fact that, while the
Case Administration Court Management Committee of the
United States Judicial Conference keeps an internal list
rating the efficiency of each of the nation’s ninety-four
district courts, that ranking has nothing to do with trials
completed, the time from filing to trial, or the hours
spent on the bench by judges presiding over trials or trial
related matters.
This policy choice is not without its consequences. Today,
our trial courts’ “status as the grassroots guardians of
constitutional values is threatened as never before.” Id.
Indeed, “the eclipse of fact finding foreshadows the
twilight of judicial independence.” DeLaventura v. Columbia
Acorn Trust, 417 F. Supp. 2d 147, 154 n. 7 (D. Mass. 2006).
The connection between the marginalization of our trial
processes and the dimunition in the independence of a fair
and impartial judiciary is more thoroughly explored in
William G. Young, Vanishing Trials, Vanishing Juries,
Vanishing Constitution, 40 Suffolk U. L. Rev. —
(forthcoming Feb. 2007).
There is one bright spot. An extraordinarily narrow
majority of the Supreme Court appears ready to resist the
functional removal of the American jury from the criminal
justice system. Blakely v. Washington, 542 U.S. 296, 303
(2004) (Scalia, J.); United States v. Booker, 543 U.S. 220,
230 (2005) (Stevens, J.). But see Booker, 543 U.S. at
247-48 (Breyer, J.). Whether these decisions reflect a
renewal of interest in our trial processes, or whether this
concern for the jury will be nipped in the bud remains to
be seen.
[fn7] The Federal Rules of Civil Procedure apply to habeas
petitions because habeas is, technically, a civil
proceeding that collaterally attacks a criminal proceeding.
Fed.R.Civ.P. 81(a)(2); Fisher v. Baker, 203 U.S. 174, 181
(1906) (characterizing habeas corpus proceedings as civil
in nature).
[fn8] Clarke was later tried and convicted. See Commonwealth
v. Clarke, 60 Mass. App. Ct. 1105 (2003) (affirming guilty
verdicts for two rape charges and a kidnaping charge).