Huenefeld v. MaloneyHuenefeld v. Maloney
ORDER ON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Uрon review of the Magistrate Judge’s thorough Report and the petitioner’s Objections, I will adopt her Recommendation that the petition for writ of habeas corpus be DENIED. I agree with the Magistrate Judge’s finding that the prosecutor’s “[o]ne tells you why” statement constituted an improper comment on the petitioner’s decision not to testify (Ground 8) but that in the totality of the trial the error was not of such magnitude as to cast doubt on the integrity of the verdict.
SO ORDERED.
FINDINGS AND RECOMMENDATION ON RESPONDENT’S MOTION TO DISMISS WRIT OF HABEAS CORPUS AND PETITIONER’S APPLICATION FOR WRIT OF HABEAS CORPUS
ALEXANDER, United States Magistrate Judge.
I. Background
On September 24, 1983, petitioner, Kurt Huenefeld, (“petitioner”) was convicted of second degree murder and of burglary and armed assault in a dwelling house after a six day jury trial in the Massachusetts Superior Court. He was sentenced to a term of life imprisonment on the murder charge, and ten to twelve years on the other charges. His convictions were affirmed by an order of the Massachusetts Appeals Court.
See Commonwealth v. Huenefeld,
On March 21, 1995, petitioner filed his first application
for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court dismissed the application on the grounds that petitioner had failed to exhaust state remedies for all of his claims.
See Huenefeld v. Dubois,
No. 95-10673-RGS, slip op. at 3-4 (D.Mass. Mar. 1, 1996). Petitioner then filed a second motion for a new trial that was denied by the Massachusetts Su
On March 3, 1998, petitioner filed this second application for a writ of habeas corpus. Respondent has moved to dismiss the petition on the grounds that it is time-barred under 28 U.S.C. § 2244(d)(1), and that the petitioner has failed to exhaust his state remedies as to claims 1, 2, 4, 7, 9, and 11. For the reasons set forth below, this Court denies petitioner’s application.
II. Facts
On the evening of October 25, 1982, petitioner and his friend John Nazzaro (“Nazzaro”) set out for a night of drinking. On the way to the pub, petitioner and Nazzaro stopped at the home of Robert Crowe (“Crowe”) to obtain cocaine. Petitioner injected cocaine while at Crowe’s home.
On the way home, shortly after midnight, petitioner and Nazzaro again stopped by Crowe’s home. This time, Nazzaro waited in the car for approximately fifteen minutes. When petitioner returned to the car, he told Nazzaro he had used more cocaine. The two then returned to petitioner’s parents’ home, and went to a basement room where Nazzaro went to sleep.
At 2:30 a.m., petitioner woke Nazzaro and relayed to him a frenzied confession: while Nazzaro slept, petitioner had returned to Crowe’s home to steal cocaine and when Crowe awoke in the middle of the burglary, petitioner stabbed him several times with a screwdriver, fled through Crowe’s bedroom window, and returned home. Nazzaro and рetitioner then created an alibi to shield themselves from accusations.
Crowe’s body was discovered by his father on the 26th, and Crowe’s sister told police that petitioner did enter the Crowe home at about 12:30 a.m. while Nazzaro waited out in the car. She reported that some time before 2:30 a.m., she was awakened and heard her brother exclaim, “[w]hat the hell are you doing?”
When questioned together, Nazzaro and petitioner stuck to their alibi through the next day, but by the 27th of October when Nazzaro, accompanied by his father and a lawyer, met with police alone, he agreed to tell them truthfully what had commenced on the night of the 25th. Police then obtained a warrant to search petitioner’s home, and seized evidence that was later used at trial. Upon examination of Crowe’s body, the Commonwealth’s expert pathologist offered the opinion that the injuries inflicted were consistent with those that would be caused by an attacker wielding a screwdriver.
III. Petitioner’s Application Is Not Time-Barred
On April 24, 1996, the Antiterrorism and Effective Death penalty Act of 1996, Pub.L. No. 104-132, § 104, 110 Stat. 1218 (“AEDPA”), was signed into law by president Clinton. Where a prisoner’s conviction became final prior to the enactment of the AEDPA, the prisoner has one year from the effective date of the AEDPA to file his application.
See Connors v. Matesanz,
No. 98-12002-WGY,
28 U.S.C. § 2244(d)(2) contains a tolling provision for tolling the statute of limitations for filing a petition for a writ of habeas corpus. 1 Respondent argues that the tolling provision set forth in the statute does not apply to the judge made grace period created for petitioner’s whose convictions became final before the passage of the AEDPA. (Respondent’s Memorandum in Support of Motion to Dismiss at 5.) Respondent urges this Court to adopt a very narrow construction of the statutory language that would limit the application of the tolling provision to the period of limitation set forth specifically under the 2244(d)(2) subsection.
Courts have wrestled with the question of whether or not the tolling provision should apply to the judge made grace period, and some have determined that it does not.
See Cole v. Kuhlmann,
Courts have expressed concern that the language of the tolling provision which requires only that the application be “properly filed” could be interpreted in a manner that would allow a petitioner to file an unending stream of post-conviction motions with the state courts to avail themselves of the tolling mechanism and repeated extensions of the limitation period.
See Connors,
In light of the foregoing, this Court finds the reasoning of the district court in Healy and Connors, supra, to be persuasive, and finds that the tolling provisions of § 2244(d)(2) do apply to the judge made grace period, and have tolled the grace period in the case subjudice. 2 Petitioner’s application is not, therefore, time-barred. This Court further finds that petitioner’s application was properly filed.
IV. Standard ofRevieiu
Pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” It is not, therefore, necessary to
The AEDPA prohibits the federal court from granting a writ of habeas corpus 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)(1) & (2).
The First Circuit has interpreted this language to set forth a two step analysis for application by the reviewing federal habeas court.
See O’Brien v. Dubois,
If there is no Supreme Court rule on point, the habeas court moves to step two and analyzes whether the state court’s use of, or failure to use, existing law in deciding the petitioner’s claim involved an “unreasonable application” of Supreme Court precedent. See id. The habeas court is not empowered under this clause of the AEDPA to issue the writ when it disagrees with the state court’s decision or where it reckons that it would have reached a different result. The writ shall issue only where the state court’s decision is “so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.” Id.
Petitioner has alleged numerous trial errors. At the outset, the Court notes that on collateral review of habeas cases involving trial error, the test for harmless error, if error is found at all, follows the standard set forth in
Kotteakos v. United States,
V. Analysis of Claims
Ground 1 Denial of Due Process of Law By Loss of Material Evidence in the Custody of the Commonwealth
Petitioner asseverates that the State suppressed material evidence in violation of the mandate of
Brady v. Maryland,
Petitioner raised this issue
in
his first motion for a new trial, and on appeal of the denial of that motion, the Appeals Court, citing to the Commonwealth’s appellate brief attached as an addendum to its Order, stated that
“all
of the contentions raised on [the defendant’s appeal of the denial of his first motion for a new trial] are without merit, as each is controlled by settled legal principles or lacks support in the record.”
Commonwealth v. Huenefeld,
97-P-1059
The Supreme Court has held that the police are only required to preserve that evidence which is material to the defendant’s case.
See California v. Trombetta,
The Supreme Court rule is dispos-itive of the issue here. It is merely speculation on petitioner’s part that the documents would have provided material evidence, and petitioner does not point to any singular suspect whose identity would have been revealed on the list, alleging only that the list would have “de-monstrat[ed] the existence of many viable suspects.” (Pet.Memo. at 5.) At best, the documents at issue here are in the cаtegory of possibly exculpatory evidence. Petitioner must therefore make a showing of bad faith on the part of the police or the prosecution. Petitioner has made no showing that the police acted in bad faith when they lost the evidence.
Further, petitioner was not deprived of the impeachment value, if any, of the list. Nazzaro’s testimony regarding the frequency of his visits to the Crowe home was discredited at trial by the testimony of Crowe’s sister who stated that Nazzaro visited the Crowe home on a weekly basis. (Pet.Memo. at 6.)
Ground 2 Denial of Due Process of Law as the Result of Constitutionally Deficient Jury Instruction
Petitioner next objects to an analogy given by the trial judge while explaining to the jury the permissibility of drawing certain inferences from the evidence. 3 Petitioner argues that the analogy improperly led the jury to conclude that its verdict could be based on speculation, not proof beyond a reasonable doubt. Petitioner also attacks the trial judge’s formulation of proof beyond a reasonable doubt, which included the phrase “not proof beyond all reasonable doubt, all imaginary doubt.” (PetMemo. at 8.)
The Supreme Court has held that the due process clause protects an accused in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
In re Winship,
Supreme Court precedent cannot be said to be wholly dispositive of the issue here. This Court therefore moves to the second step of the
O’Brien
analysis to determine if the state court’s action was “objectively reasonable.”
O’Brien,
In affirming the superior court’s denial of the petitioner’s second motion for a new trial, the Massachusetts Appeals Court held that the analogy given in the instruction explaining permissible inferences was not erroneous, or at a minimum did not result in any prejudice to the defendant.
See Commonwealth v. Huenefeld,
9-P-1059, at
This Court agrees, and finds no error in the permissible inference instruction. Taken as a whole, the entire analogy portrays a process of drawing reasonable inferences from evidence — a reasonable juror would understand that it would not be permissible to invent wild, speculative inferences devoid of any factual basis. This is particularly so given the judge’s concluding caution that inferences must be based upon the facts credited as true by the jurors.
The Appeals Court also fоund that the reasonable doubt instruction was proper,
4
Again, the language must be considered in the context of the entire instruction. The phrase, while perhaps inartful, cannot be said to have had a substantial or injurious effect on the jury when the rest of the instruction provided the jury with a correct statement of the State’s burden. A reasonable juror would not have concluded that the quantum of proof required to convict was anything less than proof beyond a reasonable doubt. The impact of the misstatement here is not of such “magnitude that it actually casts doubt on the integrity of the verdict.”
Callahan,
For these reasons, petitioner’s prayer for relief predicated on Ground Two is hereby DENIED.
Ground 3 Denial of Fair Trial and Due-Process of Law Through Commomvealth’s Intentional Failure to Investigate Evidence That Was Either Exculpatory or Would Damage the State’s Case against the Petitioner
A sample of the victim’s head hair and fibers taken from the victim’s left hand were examined by the Massachusetts Department of Public Safety. (Lab Report attached to PetMemo. at
As to petitioner’s first line of attack, the Supreme Court has held that the prosecutor’s duty to search for material evidеnce that is favorable to the defendant extends beyond the prosecutor’s office to other government offices working on the investigation.
See Kyles v. Whitley,
As to his second argument, the Supreme Court has held that to constitute a due process violation, prosecutorial misconduct must be of sufficient significance to result
Assuming without deciding that the testimony elicited by the prosecutor did lead the jury to believe that the hair in the victim’s hand was the victim’s own, the question becomes, did this testimony have a substantial and injurious effect or influence on the jury’s verdict. In other words, the issue is not whether the prosecutor acted improperly, but whether the prosecutor’s actions warrant reversal.
See e.g., United States v. Mateos-Sanchez,
As the Appeals Court observed, there was no evidence which connected the fibers taken from the victim’s left hand to the clothing or mattress seized during the search of petitioner’s home.
See Huenefeld,
Petitioner submits that but for the testimony concerning the source of the head hair in Crowe’s left hand, the jury would not have convicted him. In light of the other evidence presented, notably the testimony of Nazzaro which was corroborated in part by certain physical and testimonial evidence, it cannot be said that the jury’s erroneous belief that the hair in the victim’s hand belonged to the victim was of such magnitude that it “actually casts doubt on the integrity of the verdict.”
Sinnott v. Duval,
In Ground Three, petitioner also raises the argument that the prosecution erred when it faded to pursue further testing of swatches of fabric taken from his mattress beyond the initial tests that revealed that bloodstains on the mattress fabric were of the same blood type as Crowe’s, Group A. Petitioner avers that the prosecutor intentionally avoided further testing because he believed it would damage his case or aid the case of petitioner.
Again, the relevant question here is not whether the prosecution acted improperly, but whether his actions warrant reversal, and again, the answer is no. Petitioner has mounted numerous collateral attacks on the presentation of testimony regаrding the blood type of the stains found on his mattress. Of critical importance is the fact that at the conclusion of the evidence, an affidavit, in the form of an agreed stipulation, of petitioner’s expert, Dr. John Abbott, who had been commissioned by the defense during the trial to conduct an independent serological analysis of the blood, was submitted into evidence.
See Huenefeld,
Petitioner makes no showing that the prosecution here intentionally sought to avoid further investigation. Moreover, this Court agrees with the Appeals Court that any harm that may have been wrought by the fabric evidence and the testimony presented by the State’s witnesses suggesting that the blood samples matched was effectively neutralized by the submission of the parties’ agreed stipulation that the bloodstains on the fabric could not possibly match the blood of the victim. This Court can discern no error on the part of the prosecutor with regard to the presentation of evidence concerning the bloodstained mattress fabric, and so finds petitioner’s claim to lack merit.
Petitioner’s claims for relief predicated on Ground Three are hereby DENIED.
Ground U Denial of Fundamental Constitutional Right to Present a Witness
Petitioner next challenges the trial court’s decision to require the parties to submit Dr. Abbott’s testimony in the form of an agreеd joint stipulation and claims the decision deprived him of the right to present witnesses in his defense.
A defendant’s right to present relevant evidence is not unlimited.
See United States v. Scheffer,
This is not a case where the defendant was deprived of the opportunity to present his own testimony in his defense,
cf. Rock v. Arkansas,
For the foregoing reasons, petitioner’s claim for relief predicated on Ground Four is also DENIED.
Ground 5 Denial of Fair Trial and Due Process of Law Where Convictions were Obtained with Improperly Admitted Physical Evidence and Improperly Obtained Evidence
Petitioner alleges that the trial judge erred when she admitted into evidence clothing, including a pair of light gray сorduroys, and boots belonging to petitioner stained with occult (visible only with the aid of a microscope) blood, after being assured by the prosecution that it would provide testimony that petitioner had been seen wearing the clothing, or clothing similar to it, (Pet.Memo. at 14), on the night of the murder. Petitioner argues that the judge erred again when she refused to strike the clothing after the prosecution failed to provide such testimony and failed to give an instruction to the jury on the purpose of admitting the pants. He also alleges that error occurred when the trial
First, except in cases involving a violation of a specific constitutional provision, the Supreme Court has stated that a federal court “may not reverse a state ‘trial judge’s action in the admission of evidence’ unless the evidentiary ruling ‘so infuse[s] the trial with unfairness as to deny due process of law.’ ”
Riggins v. Nevada,
Petitioner argues that the court’s evi-dentiary rulings saturated the trial with unfair prejudice to him, consequently resulting in the denial of his due process right. Judicial rulings, made in the heat of trial, that turn on the often close question of whether the probative value of certain evidence outweighs the likelihood of undue prejudice to the defendant if it is admitted, emerge from a fact sеnsitive analysis that does not easily lend itself to review under the first step of O’Brien. The Court will therefore focus its inquiry on whether or not the state court’s decision reflects an unreasonable application of clearly established Supreme Court jurisprudence.
Petitioner was accused of a particularly violent and bloody murder. The corduroys he was wearing at the time of his arrest, (Pet.Memo. at 14), had reddish brown stains on the right pant leg which tested positive for small but untraceable amounts of blood. (Report at
The prosecution offered testimony that neither ruled out nor confirmed the conclusion that petitioner wore the corduroys on the night of the murder. The jury heard testimony from three witnesses regarding the clothing. Nazzaro testified that he did not remember what petitioner had been wearing before or after confessing to the murder. (Pet.Memo. at 15.) Janet Crowe, the victim’s sister, offered the same testimony as Nazzaro.
(Id.)
Donna Crowe, the victim’s other sister, testified that petitioner had been wearing blue jeans and possibly a checkered shirt on the night of the murder.
(Id.)
Dr. Abbott stipulated that the blood sample on the pants was insufficient to conduct a matching test with the victim’s blood.
See Huenefeld,
The judge’s decision to let the pants in was based on an offer of proof by the prosecution that witnesses would testify that the clothes, or similar clothes were worn by petitioner on the night in question. Although two of the witnesses could not remember what Huenefeld was wearing, Donna Crowe did recall that Huene-feld was wearing blue jeans, pants that are not dissimilar from light gray corduroys.
Without testimony affirmatively placing petitioner in the clothes on the night of the murder, the relevance and probative value of the evidence is reduced, however, it cannot be said that the evidence had no relevance or probative value, nor can it be said that the evidence, in light of the testimony given and the Abbott stipulation was overly prejudicial. It is axiomatic that all evidence is prejudicial— the relevant question is whether or not the evidence in question was overly prejudicial, so much so that its likely prejudicial effect outweighed its probative worth. The trial judge exercises broad discretion in making this decision, and this Court does not find her ruling to be an unreasonable application of Supreme Court precedent. This Court agrees with the Court of
On October 27, the day following the incident, Nazzaro lent his car to his cousin because Nazzaro was scheduled to go into the Army that day. It was later that same day, however, that Nazzaro gave his statement to the police and told them that petitioner had awoken him in the middle of the night, and confessed to taking Nazza-ro’s car, driving to Crowe’s home, killing Crowe, returning home, and washing the car out to remove any traces of blood. Following that statement, the prosecutor instructed Nazzaro to get the vehicle and bring it to Cambridge the next day.
James Canney, a chemist with the Commonwealth’s Department of Public Safety examined Nazzaro’s car on October 28, 1982, at the Middlesex County Courthouse Garage. Chemical tests for blood were positive on the inside door handle on the driver’s side, the signal switch, the emergency brake handle, the driver’s seat, the steering wheel, the headlight pull switch, and a black leather key ring holder that was removed from a set of keys belonging to the vehicle. (Report at
Petitioner challenges the admission of the evidence regarding blood in the car on the grounds that it is incompetent because the proper chain of custody was disregarded when the prosecutor allowed the car to be recovered without a police presence. He also argues that the prosecutor, by eliciting testimony from Nazzaro that he, the prosecutor, had instructed Nazzaro to bring the car to Cambridge, improperly vouched for the “integrity of Nazzaro,” and “present[ed] his office as guarantor of the propriety of the decision.” (Pet.Memo. at 18.)
Petitioner overlooks the fact that a possible defect in the chain of custody for a certain piece of evidence factors into the weight assigned to the evidence by the jury, rather than its admissibility.
See United States v. Rodriguez,
Accordingly, petitioner’s prayer for relief predicated on Ground Five is hereby DENIED.
Ground 6 Denial of Fair Trial and Due Process of Law Where Conviction was Obtained with False Evidence
Petitioner next contests the introduction of testimony and physical evidence which he asserts was known to the prosecution to be “false and highly misleading.” (Pet. Memo, at 19.) Though not clearly articulated, the arguments imply a challenge to both the conduct of the prosecutor and the judge’s decision to admit certain evidence. Both a portion of the testimony of the Commonwealth’s Medical Examiner, and the claimed origin of a syringe found at petitioner’s home are at issue. As stated previously, the Supreme Court has held that to constitute a due process violation, prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial.
See
Dr. George Katakas, a forensic pathologist, performed the autopsy on Crowe. His report states that Crowe’s blood (heart) tested negative for alcohol and barbiturate, was of Type A, that the subdural blood test was negative for alcohol, that Crowe’s urine was negative for alcohol, organic bases and organic neutrals, that his bile was negative for morphine, and that a nasal swab tested negative for cocaine. (Autopsy Report at
In petitioner’s statement to the police, he claimed that Crowe had used cocaine with him on the night of the murder. Petitioner argues that Dr. Katakas’s testimony that there was no cocaine in the blood when no blood test had been done for cocaine was testimony that the prosecution knew to be false, and did nothing to correct. According to petitioner, the effect of the testimony harmed his credibility in a case that turned on the question of whether the jury found Nazzaro or petitioner to be more credible, thus depriving him of his right to due process.
Assuming arguendo that Dr. Katakas misspoke on the stand with regard to the remark concerning absence of cocaine in Crowe’s blood, his testimony otherwise accurately tracked the autopsy report. The nasal swab was negative for cocaine, the report states all tests were negative for toxic substances, and there is no indication of intravenous drug use noted in the report. The jury had the autopsy report, (Pet.Memo. at 20 n. 15), heard the testimony of Dr. Katakas, and made a determination as to his credibility. That petitioner’s credibility may have been impeached is nothing more than a product of the trial function. This Court finds no misconduct on behalf of the prosecutor.
Petitioner also asserts that the prosecutor misrepresented evidence in court and solicited perjury from a witness for the State when the origin of one of the two syringes found upon a lawful search of petitioner’s residence was identified incorrectly. Only one of the syringes recovered contained a needle, and this was found in a trash barrel outside of petitioner’s home. A washing of this syringe revealed a cocaine residue. (
Based on this Court’s reading of the colloquy that ensued prior to the admission of the syringe, it is clear that the trial judge rejected the prosecutor’s argument that the evidence should be admitted because it would demonstrate that there were traces of cocaine, the subject of the larceny, on the needle when the prosecution could not show that the cocaine on the needle was the same cocaine that was stolen from Crowe at the timе of the murder. Rather, the evidence was allowed in because the judge found it was relevant as would tend to corroborate Nazzaro’s testimony that he had seen petitioner inject himself with cocaine on the night of the murder.
The Appeals Court correctly stated the origin of the syringe in its 1993 opinion, and found that “[w]hile its relevancy was questionable, at least some of the testimony about it was admissible over objection, because Nazzaro testified to observing the defendant inject himself with cocaine during the hours preceding the
Accordingly, petitioner’s prayer for relief predicated on Ground Six is DENIED.
Ground 7 Denial of Fair Trial and Due Process of Law by Judicial and Prosecuto-rial Criticism of Petitioner’s Counsel’s Character
Petitioner next takes the judge to task for admonishing his counsel in open cоurt upon cross examination to “not play games.” (PetMemo. at 23 n. 17.) This comment, combined with the allegedly improper comments of the prosecutor resulted, according to petitioner, in a denial of his due process rights.
The Supreme Court has stated that “the influence of the trial judge on the jury is necessarily and properly of great weight, and ... his lightest word or intimation is received with deference, and may prove controlling.”
Starr v. United States,
It cannot be said that the judge’s comments to defense counsel in this instance were unreasonable. This is particularly so given the fact that she took care to give both a general instruction to the jury that “the Court’s comments to counsel ... [were] not to be taken as any indication of the Court’s opinion of this case,” and a specific instruction that “I might add that late Friday afternoon, think it was about four o’clock, the Court made a remark that probably was better left unsaid. These things happen. I’m not going to repeat the remark. You may remember it. In any event, I wоuld ask you to disregard it. Any remarks such as that are no different from the attorney’s remarks: they are not evidence, and I’d ask you not to consider it.”
Huenefeld,
97-P-1059, at
Petitioner’s prayer for relief predicated on Ground Seven is hereby DENIED.
Ground 8 Deprivation of Due Process of Law by Prosecutorial Comments on Petitioner’s Exercise of the 5th Amendment & Ground 9 Violation of Right to A Fair Trial and Due Process of Law by Numerous Prosecutorial Arguments
Grounds 8 and 9 will be analyzed together here as they both raise the argument that petitioner was denied due process of law and his right to a fair and impartial jury as the result of numerous allegedly improper comments by the prosecutor. Petitioner avers that the prosecutor improperly (1) commented on his exercise of his 5th Amendment right to not self incriminate; (2) commented that defense
As we have seen, prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial in order to constitute a due process violation.
See U.S. v. Bagley,
Prosecutorial comment on a defendant’s failure to testify in a trial is not per se error requiring automatic reversal.
See Chapman v. California
Because the Supreme Court’s treatment of the issue is not dispositive here, this Court must ascertain whether the state court’s actions were reasonable in light of this precedent. In conducting the analysis, this Court looks to the weight of the evidence against petitioner, and to the presence of jury instructions cautioning the jury to make its decision on the basis of the facts alone and that the arguments of counsel are not evidence.
See Wainwright,
A Ground 8 Alleged Comments on Defendant’s Exercise of Fifth Amendment Right
The prosecutor stated during her closing argument that “[i]t’s one of two people. It’s either that man sitting up there [petitioner], or it’s John Nazzaro on the witness
With regard to the first statement, although the Court acknowledges it is a close question, this Court does not find that the comment can be construed to be a reference to the petitioner’s decision to not testify. The reference to John Nazzaro on the witness stand would not necessarily direct the jury’s attention to petitioner’s failure to testify. It tends to direct the jury’s attention to Nazzaro’s testimony. This Court agrees with the Appeals Court that the comment was not an improper reference to petitioner’s exercise of his Fifth Amendment right.
Analysis of the second statement, however, compels a different conclusion. The second statement treads the same fine line as the first, using language that emphasizes Nazzaro’s testimony. The statement “[o]ne tells you why,” crosses the line and does tend to draw the jury’s attention explicitly to the fact that petitioner did not “tell” his version. For this reason, this Court finds that the statement was an improper prosecutorial comment on the defendant’s decision to not testify.
The Court does not find, however, that the comment was sufficiently prejudicial to violate the petitioner’s due process rights. The State’s case against petitioner was very strong. There was overwhelming circumstantial evidence that petitioner committed the crime. Moreover, the trial judge gave general instruсtions to the jury to draw no unfavorable inference, or any inference from the petitioner’s refusal to testify. (Pet.Memo. at 26.) She also instructed that the attorney’s remarks are not evidence.
See Huenefeld,
97-P-1059 at
Accordingly, petitioner’s prayer for relief predicated on Ground Eight is hereby DENIED.
B. Ground 9 Other Improper Prosecu-torial Comments
Upon examination of petitioner’s claims of prosecutorial misconduct, the Appeals Court found that “no harm befell [petitioner], [ ] he ‘furnish[ed] no analysis which might [have been] helpful in the assessment of his complaints’ or there was ‘no basis in the record’ for [petitioner’s] assertions.”
Huenefeld,
97-P-1059 at
(1) Comment that defense counsel was “much trickier” than the State’s witness
The comment in full stated, “[i]t told you, I would suggest, that [defense counsel] is much smarter than Mr. Nazza-ro, much smarter, much trickier. He can take five transcripts, ask [a] specific question that happened to him a year ago, he can trip him up.” (Pet.Memo. at 24 n. 20.) This Court finds no impropriety in counsel’s argument. The statement merely sought to argue the credibility of the State’s witness, Nazzaro, and even if the statement were improper, in light of the State’s case against petitioner it cannot be said to have had a substantial or injurious affect on the jury’s verdict.
(2) Misrepresented statements of defense counsel & (3) stated that the condition of the safe in Crowe’s room after the murder was observed by the locksmith, who never testified at trial
Petitioner takes issue with the comment, “[n]ow at the time that the photograph, the
The second sentence is an improper comment inasmuch as it could be construed as asserting or implying the knowledge of a witness who has not testified. For the reasons stated previously, however, this Court finds no due process violation.
(k) Hearsay argued lohen prosecutor stated that Nazzaro’s father and lawyer told Nazzaro to tell the truth ivhen neither testified at trial; & (5) Prosecutor vouched for the credibility of Nazzaro when he said Nazzaro did tell the truth
The prosecutor stated, “John Nazzaro looked nervous. They decided to re-interview him. Talked to a lawyer, talked to his father. They told him to tell the truth. He did.” (Pet.Memo at 28 n. 24.) The prosecutor was prohibited from asking Nazzaro exactly what his father and lawyer told him when defense counsel objected to the line of questioning and the judge sustained the objection. This Court finds nothing improper in the prosecutor’s comments, however, as counsel may draw reasonable inferences from the evidence, and argue the credibility of the state’s witnesses. Moreover, the trial judge instructed the jury that arguments of counsel were not evidence and should not form the basis for their determination of the petitioner’s guilt or innocence. Even if the statement were improper, in light of the State’s case against petitioner it cannot be said to have had a substantial or injurious affect on the jury’s verdict.
(6) Comment that experienced officers knew right away that Nazzaro had not committed the crime
Again, counsel may draw reasonable inferences from the evidence. This Court finds nothing improper in this statement.
(7) Comment that petitioner had lied about his whereabouts on the night of the murder and misrepresented evidence regarding this issue
The prosecutor said,
“This is the man whose [sic] concerned-that period of time. This is the man who lies to the police about that.... The times are fixed independent, either party, critical time. Time of the murder, the time [petitioner] alibis himsеlf, says he is with John Nazzaro, says he is at home, says he’s having a beer, that’s the time Robert Crowe is being killed. Now, if you believe Kurt Huenefeld’s statement,, that means that he knows or knew he was with John Nazzaro. That’s impossible.... He’s putting through the substance of these statements, himself and John together at his house at one o’clock drinking a beer. He focuses in on that time. Why? Because he knows the time he has to not be at Robert Crowe’s house.” (Pet.Memo. at 30 n. 25, 26, 27.)
Petitioner argued that the prosecutor misrepresented the evidence when she argued to the jury that he had lied about his whereabouts on the night of the murder. The prosecutor’s statements here are calculated to portray the events based on the State’s reasonable interpretation of the evidence. Petitioner argues that his statement to the police was consistent with the rest of the testimonial evidence given by the State’s witnesses which would place
The Commonwealth argued that the murder took place between 1:00 and 1:30 a.m. Crowe’s sisters testified that petitioner came by sometime aftеr midnight and left just after 12:30 a.m., after which Crowe and his sisters went to bed. Janet Crowe estimated she laid awake for a period between one half hour and one hour when she heard Crowe say, “[w]hat the hell are you doing?” and heard other noises. Nazzaro estimated that he and petitioner arrived at petitioner’s home shortly after they left Crowe’s home. Nazzaro testified that he and petitioner spent a small amount of time in the car upon their arrival, and then went in to watch T.V. for about twenty minutes before going to bed.
Nazzaro also testified that petitioner woke him up at around 2:30 a.m., confessed to the murder, and explained that he had already washed his clothes and cleaned out the car. Nazzaro stated that petitioner told him he was concerned that he may have been observed leaving to return to Crowe’s home, as he inadvertently set off the car alarm in Nazzaro’s vehicle when he left to return to Crowe’s. Alan Macintosh, petitioner’s neighbor, did report seeing petitioner and Nazzaro arrive home sometime between 12:30 a.m. and 1:00 a.m., and that he heard the car alarm in Nazzaro’s car go off fifteen to 30 minutes later.
The State accused petitioner of the murder, and petitioner’s defense was to argue that Nazzaro had committed the murder and attempted to shift the blame to him. In light of their respective theories of the case, the prosecutor’s argument mеrely points out the obvious: the two men could not have been together at the time of the murder, as one of them committed the murder. It was entirely appropriate for the prosecutor to argue this point. Further, this Court finds petitioner’s argument that his statement to the police “precisely corresponds with that of the Commonwealth’s witnesses, and specifically, Nazzaro’s,” to lack merit as it is without basis on the record.
Petitioner’s prayer for relief predicated on Ground Nine is hereby DENIED.
Ground 10 Denial of Effective Assistance of Counsel & Ground 12 Denial of Effective Assistance of Counsel on Direct Appeal
In
Strickland v. Washington,
the Supreme Court set forth a two part test to guide courts in determining ineffective assistance claims.
See
Counsel can deprive a defendant of the right to effective assistance by failing to render adequate legal assistance.
See Cuyler v. Sullivan,
The second component of the test requires a showing that the deficient performance deprived petitioner of “a trial whose result is rehable,”
id.
at 687,
A court reviewing an ineffective assistance claim need not address both components of the inquiry if the petitioner fails to make a sufficient showing as to one.
See id
at 697,
While the Suprеme Court precedent is not wholly dispositive of the issue raised here by petitioner, it does set forth the parameters that must guide the Court’s consideration. The Court will therefore determine whether the state court’s action was reasonable in light of Strickland.
Petitioner claims that his trial counsel’s assistance was ineffective because (1) he spent limited time with petitioner prior to trial and did not provide him with access to all documents; (2) failed to investigate the origin of the human head hair found in Crowe’s hand; (3) failed to obtain independent lab testing of blood stains on petitioner’s mattress until after the close of the prosecution’s evidence; (4) failed to move to suppress evidence of or object to admission of results of forensic testing on Nazzaro’s car; (5) failed to object to introduction of “false” evidence, namely the testimony of Dr. Katakas regarding the toxicity tests and the needle and syringe identified as being found on petitioner’s bed stand; (6) commenting to jury in closing argument that petitioner had stolen some scales; (7) failed to object to insufficient jury instructions.
The Appeals Court found that “[t]here has not been any showing of how the defendant was prejudiced .... none of the defendant’s asserted deficiencies in the performance of his trial counsel individually, or in the aggregate, were ‘likely to have made a difference in the result.’ ”
Huenefeld,
It cannot be said that counsel’s decision to forgо investigation of the hair found in Crowe’s hand was unreasonable, particularly since such investigation could have yielded inculpatory evidence. The Court has already determined that no harm befell petitioner as a result of the fact that his own hair was not analyzed. See discussion of Ground Three, supra. Additionally, the Court has also determined that (1) no prejudice resulted from the admission of the results of forensic analysis of evidence found in the car, see discussion of Ground Five, supra; (2) no harm resulted from the Dr.’s statement or the misidentification of the location of the needle and syringe upon seizure, see discussion of Ground Six, supra; and (3) there was no error in the jury instructions given by the judge, see discussion of Ground Two, supra. Based on these findings, petitioner has, a fortiori, failed to make a sufficient showing of prejudice as to these allegations of ineffectiveness.
Petitioner has also made no showing that he was prejudiced by counsel’s decision to not obtain independent testing of the blood stains on the mattress until after the close of the evidence. This Court agrees with the Appeals Court who wrote, “that trial counsel chose not to risk possible inculpatory results until after the Commonwealth’s evidence was presented to thе jury appears to have been a reasonable tactical decision.”
Id.
at 319,
Petitioner has also failed to make a sufficient showing that but for defense counsel’s statement that “Huenefeld wanted to get rid of some scales that he stole,” the result of the criminal proceeding would have been different. Gauging the effect of the comment in the context of the totality of the evidence before the jury, this Court finds no merit in petitioner’s argument that the comment rises to the level of ineffective assistance.
Petitioner contests the assistance he received from his appellate counsel, and argues it was ineffective for the following reasons: (1) counsel did not meet with him to discuss the grounds for appeal; (2) did not provide him with access to documents related to the State’s case or his convictions; (3) did not respond to petitioner’s request to amend his appellate brief; (4) filed his first ALOFAR without giving notice to him; (5) failed to raise certain claims on direct appeal; and (6) deprived him of the opportunity to file a “Moffett ” brief pro se.
The Appeals Court found that petitioner failed to make out a claim of ineffective assistance of appellate counsel, “[a]ppellate counsel prepared and argued a comprehensive brief in this court on behalf of the defendant. Four issues were adequately argued. Principally the attack was on the judge’s failure to instruсt the jury on the effect of voluntary intoxication in determining the requisite intent required for the crime charged.... None of the forensic points now stressed by the defendant as appealable issues was a prominent feature at his trial.”
Id.
at 321-22,
As to petitioner’s first four arguments, he has failed to make a sufficient showing of prejudice resulting from counsels’ actions. As to his argument that counsel failed to raise certain arguments on appeal, petitioner fails to recognize the function of appellate counsel. The purpose of having an appellate advocate is to weed out the weak arguments and emphasize the strong arguments.
See Jones v. Barnes,
Finally,
Commonwealth v. Moffett
7
places further obligations on appellate counsel that exceed the rights provided to defendants under the Sixth Amendment.
See
Petitioner’s prayer for relief predicated on Grounds 10 and 12 are hereby DENIED.
Ground 11 Deprivation of Due Process of Law and A Fair Trial by Cumulative Effect of Constitutional Defects and Errors That Occurred in the State Prosecution
Petitioner argues that the alleged pros-ecutorial misconduct, use of “false” evidence, alleged attacks on counsel’s character, comments on his silence, and the alleged misrepresentation of evidence had the cumulative effect of denying his right to a fair trial and due process of law. (Pet.Memo. at 41.) In light of the preceding findings made by this Court,
supra,
none of these asserted defects and errors either individually, or cumulatively had a “substantial and injurious effect or influence in determining the jury’s verdict.”
Abrahamson,
Accordingly, petitioner’s prayer for relief predicated on Ground 11 is hereby DENIED.
VI. Petitioner’s Motion for Discovery Pursuant to Rule 6(a) of the Rules Governing § 2254. Cases
Rule 6(a) states: “A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” 28 U.S.C. § 2254, Rule 6(a). A petitioner seeking habeas relief is not entitled to discovery as a matter of course.
See Bracy v. Gramley,
Petitioner requests admissions confirming the location of the syringe upon its seizure, interrogatories concerning the toxicological testing performed on the victim’s body, specifically with regard to testing for рresence of cocaine, and transcribed records of Nazzaro’s interview with the police. As grounds, he sets forth the conclusory allegation that the requested materials will “demonstrate the blatantly false nature of physical evidence” that formed the basis for his conviction. This is not sufficient to demonstrate good cause.
See Harris v. Johnson
Moreover, this Court agrees with the respondent who argues that petitioner’s request for admissions implicates an alleged discrepancy in the Commonwealth’s evidence that has been addressed by the state court and is a matter of record. Further, based on this Court’s preceding analysis of the Grounds for petitioner’s application, petitioner neither alleges, nor can this Court discern, the existence of a factual dispute that would necessitate the requested discovery and which, if resolved in petitioner’s favor, would warrant relief.
Accordingly, petitioner’s Request for Leave to Exercise Discovery is hereby DENIED.
VIII. Need for Evidentiary Hearing
Although neither party has requested an evidentiary hearing, the Court will address the matter briefly. 28 U.S.C. § 2254(e)(2) provides that
“If the applicant has failed to develop the factual basis of a claim in State courtproceedings, 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, mаde 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 fact finder would have found the applicant guilty of the underlying offense.”
Petitioner would be entitled to an evidentiary hearing only if the state court fact finding process was deficient in some significant respect.
See Eaton v. Angelone,
For these reason, this Courts finds that an evidentiary hearing pursuant to § 2254(e)(2) is not warranted.
Huenefeld’s petition for a writ of habeas corpus is hereby DENIED, his request for discovery is DENIED, and an evidentiary hearing is not warranted.
SO ORDERED,
Notes
. The statute reads, in relevant parL: "[t]hc time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).
. The grace period runs from April 24, 1996 to April 25, 1997. On January 24, 1996, petitioner's first habeas petition was dismissed. On March 7, 1997, he submitted his second motion for a new trial with the Massachusetts superior court. This filing tolled the grace period with 50 days remaining. The motion was denied on April 18, 1997, the denial affirmed on November 20, 1997, and further appellate review was denied by the SJC on January 29, 1998. At that point, the clock again began running, and 36 days passed before petitioner filed this application for habeas relief on March 3, 1998. Of the one year grace period, twelve days remain.
. The instruction in question read: "Suppose you are driving out the Concord Turnpike out to Arlington or Lexington early in the morning, and you see a guardrail has been completely broken through, and under the guardrail you see some tracks. They look like fresh tracks. It’s reasonable to infer that an automobile went through the guardrail. You may infer that he went through recently. If there are tire marks on the street just before it, you may infer that it was an automobile from their width and not a truck. You may, you may not. If there were no tire marks, you may infer that he fell asleep, didn’t hit his brakes before he went over. You may not infer that too. It's entirely up to you. You may say he tried to avoid something, or he just went ovеr. You can get into inferences — become very speculative, you can come to inferences that are very populous [sic], but the inferences you make must be based upon the facts that you determine to be the truth in this trial.” (Pet. Memo, at 7.)
. The contested language was taken from
Commonwealth v. Little,
. In analyzing an earlier claim by petitioner that he was denied effective assistance of counsel because his attorney failed to have the mattress blood tested independently, the Court wrote: "[a]nalysis of blood stains found on [petitioner's] mattress cover showed a common blood group (type A) with that of the victim. It was admitted as evidence at trial. But during crossexamination of the Commonwealth's forensic witness, a chemist attached to the State police laboratory, defense counsel elicited testimony to the effect that, with more sophisticated equipment, a chemist could perform a more finite blood grouping analysis which might exclude the defendant altogether. Defense counsel pressed the trial judge for funds to hire an independent serologist to test the stains on the mattress cover. The judge permitted this to be accomplished. At the conclusion of the evidence, the defense presented (in the form of an agreed stipulation) an affidavit of Dr. John Abbott, which stated that the blood stains tested from the mattress cover sample could not possibly match the blood of the victim.... That trial counsel chose not to risk possible inculpatory
. The Court recognizes that the harmless error standard from
Chapman,
harmless beyond a reasonable doubt, is no longer applied on collateral review of habeas cases.
See
Part IV,
supra.
The holding of
Chapman,
however, which rejects finding per se error requiring automatic reversal when a prosecutor comments upon a defendant’s failure to testify, remains applicable here. Comment on a defendant’s failure to testify must be shown to have had a "substantial and injurious effect or influence in determining the jury’s verdict.”
Kotteakos,
. In
Moffett,
the Massachusetts Supreme Judicial Court expanded the holding in
Anders v. California,