Case Information
*1 United States Court of Appeals
For the First Circuit
No. 14-1070
ROBERT M. LEE,
Petitioner, Appellant,
v.
MICHAEL CORSINI,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Selya and Stahl, Circuit Judges.
Mary T. Rogers, for appellant. Anne M. Thomas, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.
January 26, 2015
*2
STAHL, Circuit Judge . A jury convicted Petitioner- Appellant Robert M. Lee of murder in the first degree for the 1976 death of Angel Santos Davila. The Massachusetts Supreme Judicial Court ("SJC") affirmed Lee's conviction on direct appeal. See Commonwealth v. Lee, 383 Mass. 507 (1981). After several unsuccessful motions for a new trial in state court, Lee filed a petition for habeas corpus relief in federal district court, arguing that his attorneys at both trial and postconviction proceedings were constitutionally ineffective and that prosecutorial misconduct tainted his case. The district court denied habeas relief as well as Lee's motion for discovery, holding that all of Lee's claims had been procedurally defaulted. After careful consideration, we hold that the claim of ineffective assistance of postconviction counsel has not been procedurally defaulted, but that 28 U.S.C. § 2254(i) constitutes an independent bar to habeas relief on this ground. We accordingly affirm.
I. Facts & Background
A. Underlying crime
We set forth the facts as recounted by the SJC in affirming Lee's conviction on direct appeal, supplemented by other consistent facts in the record. Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009).
Janet Brady hired Lee to kill her boyfriend Angel Santos Davila, with whom she lived. [1] Brady testified at trial that her relationship with Davila began deteriorating in the spring of 1976, and that, by the summer, she had resolved to "find someone to pay to do him harm." She contacted Robert DeCot, the manager of a local bar, who put her in touch with Lee. Lee was known to DeCot as a patron of his bar; Brady, too, was already acquainted with Lee, as he was a customer at the Fort Devens credit union where she worked as a loan officer. Over the days leading up to Davila's shooting, Brady and Lee met several times at local bars and in the back office of the credit union. During these meetings, they made plans to "take care of" Davila and discussed payment. Lee demanded $500 upfront, plus an additional $2000; Brady complied.
Davila was shot at approximately 8:45 p.m. on Thursday, August 26, 1976. People attending a pool party at the house next door to Brady and Davila's heard shots ring out, as well as the sound of a car with a noisy muffler driving away. An "old car, making a lot of noise" and "reddish" in color was seen driving away very fast. Lee's wife, who was out of town at the time of the shooting, owned a red Toyota, which Lee had been seen driving that week.
*4 Police recovered one yellow Sears shotgun shell, determined to have come from a 20-gauge shotgun, outside Davila's house, as well as No. 8 shot lead fragments from the stairway inside the house; similar lead fragments also were extracted from Davila's body during the autopsy. There was testimony at trial that although Lee had loaned his shotgun to a friend, he picked it up sometime between August 23 and 26. When police arrested Lee on August 29, they found in his closet a 20-gauge Remington shotgun and five yellow Sears 20-gauge shotgun shells filled with No. 8 shot.
Lee presented an alibi defense:
Lee offered his own and corroborating testimony that he was at a bar some distance away from the victim's home from eight o'clock until well after nine on the evening in question. He sought to show that he was not driving his wife's red Toyota but a jeep that night, that the Toyota was not old or noisy, and that he did not recover his shotgun until Friday, August 27, the day after the shooting.
Lee's version of his contact with Janet Brady was that she asked him to collect money from a Mr. "Warner." He claimed Brady concocted the story of the conspiracy with Lee in order to protect her son or someone else who actually shot Davilla [sic].
Lee,
B. Direct appeal
On appeal, Lee challenged the denial of his motion to suppress and motion for a directed verdict, as well as the jury instructions on malice and the trial judge's failure to instruct on manslaughter. The SJC affirmed Lee's conviction in 1981, finding no merit to any of his arguments.
C. Postconviction proceedings
Postconviction proceedings have extended over four decades since Lee's conviction was affirmed on direct appeal. Lee filed his first motion for a new trial, through counsel, in July 1983. After that attorney was disbarred, another lawyer took over his case and filed a substitute motion for a new trial in August 1989. That motion raised claims of ineffective assistance of counsel, based on a failure to investigate Lee's purported lack of criminal responsibility as a result of mental impairment sustained in the Vietnam War; ineffectiveness of counsel in cross-examining witnesses and failing to request a jury instruction on misidentification; and error in the jury instructions on reasonable doubt and malice. The motion was denied without a hearing in February 1990.
Lee subsequently filed a pro se motion to reconsider that decision, which also added several claims centering on his lack of criminal responsibility and incompetence to stand trial, and ineffective assistance of counsel for failure to raise those *6 claims. This motion, too, was denied without a hearing. Lee sought leave to appeal, and a hearing was held before a single justice of the SJC in November 1992. The single justice, acting as gatekeeper, declined to let the appeal proceed to the full court. [2]
Lee filed another pro se motion for a new trial in September 1995, also requesting that counsel be assigned to him. Although his motion for the appointment of counsel was allowed, none was assigned and, for reasons that are unclear from the record, no further action was taken on Lee's case for over seven years. Mary Rogers, Lee's current attorney, was appointed as new counsel in February 2003; in September 2004, she filed a new motion for a new trial to substitute for Lee's pro se filing.
The 2004 motion for a new trial took a new tack. Instead of focusing on Lee's alleged lack of criminal responsibility and claimed error in jury instructions, this motion asserted numerous instances of ineffective assistance of counsel — at both trial and postconviction stages — as well as prosecutorial misconduct as *7 grounds for a new trial. [3] In connection with this motion, Lee also *8 filed motions for discovery, in attempt to obtain documents such as police reports, ballistics records, grand jury minutes, and the victim's statements to police, which state prosecutors and law enforcement officers purportedly had not provided. The court denied the motion for new trial in September 2005 without explicitly addressing the motions for discovery. Lee sought leave to appeal the denial of the motion before a single justice of the SJC. Finding that the appeal did not raise "a new and substantial question," Mass. Gen. Laws ch. 278, § 33E, the single justice, in July 2006, declined to let the appeal proceed to the full court.
Lee, through current counsel, filed a petition for a writ of habeas corpus in the district court in July 2007, raising much the same claims as the 2004 motion presented. Lee also filed several ancillary motions, including a motion for discovery, motion for an evidentiary hearing, and motion for criminal records of witnesses. The district court held a non-evidentiary hearing in March 2009, and subsequently denied Lee's motions. For reasons that are unclear from the record, the district court's final memorandum and order denying habeas relief did not issue until December 2013, nearly six-and-a-half years after Lee filed the petition.
Applying our decision in Costa v. Hall, 673 F.3d 16,
22–25 (1st Cir. 2012), the district court held that all of Lee's
claims had been procedurally defaulted, since, as the single
*9
justice of the SJC had determined, they failed to overcome the "new
and substantial question" hurdle of Mass. Gen. Laws ch. 278, § 33E.
See Lee v. Corsini, No. 07-11316-MLW,
Thus, after a long and tortuous process involving sometimes inordinate delay, this appeal has finally reached us, over thirty-eight years after the shooting of August 26, 1976.
II. Analysis
We review a district court's denial of a habeas corpus
petition de novo. Lynch v. Ficco,
Because, as a general matter, "[a] federal habeas court
will not review a claim rejected by a state court if the decision
of [the state] court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment," Walker v. Martin,
The last reasoned opinion here is the 2006 decision of the single justice of the SJC, who ruled that Lee's appeal from the denial of his 2004 motion for a new trial did not present "a new and substantial question which ought to be determined by the full court." Mass. Gen. Laws ch. 278, § 33E. Before the single justice were three types of claims: ineffective assistance of trial counsel, prosecutorial misconduct, and ineffective assistance of postconviction counsel (namely, the attorney who handled his first motion for a new trial in 1989). The single justice held that the first two claims were not new, since they could have been raised in an earlier proceeding; he held that the claim of ineffective assistance of postconviction counsel, though "arguably" new, was nevertheless not substantial. [4] The parties agree that the first two claims have been procedurally defaulted, but disagree over whether the ineffective-assistance-of-postconviction-counsel claim has been defaulted, and whether there is reason to excuse any default. We discuss these issues in more detail below.
*11 A. Whether claim of ineffective assistance of postconviction counsel has been procedurally defaulted under Mass. Gen. Laws ch. 278, § 33E
Federal habeas review of the merits of a claim is
precluded if there is an independent and adequate state law ground
supporting the state court's decision. Walker,
We have previously addressed the "particular waiver rule"
of Mass. Gen. Laws ch. 278, § 33E, the statute specific to appeals
of first-degree murder convictions, upon which the single justice
relied in his decision. Mendes v. Brady,
"A defendant's claim might be 'new,' for example, if the
applicable law was not sufficiently developed at the time of trial
or direct appeal, such that the claim could not reasonably have
been raised in those proceedings; or if evidence not previously
available comes to light." Commonwealth v. Gunter,
[a]n issue is not 'new' within the meaning of [§ 33E] where either it has already been addressed, or where it could have been addressed had the defendant properly raised it at trial or on direct review. The statute requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available at the time of trial or appeal.
Commonwealth v. Ambers, 397 Mass. 705, 707 (1986) (internal
quotation marks omitted). An issue is "substantial" if it is
"meritorious . . . in the sense of being worthy of consideration by
an appellate court." Gunter,
The single justice's determination that an issue is not
"new" within the meaning of § 33E is tantamount to a finding of
procedural default, "the classic example of an independent and
adequate state ground." Simpson,
This, at least on its face, is straightforward enough — a finding that the issue is not new amounts to procedural default, *14 whereas a finding that the issue is new but not substantial does not. However, both the district court and the parties have identified some tension in our prior cases addressing single justices' application of the new-and-substantial rule. We take this opportunity to dispel any uncertainty.
The source of the confusion is a passage in our recent
decision in Costa, which, when read in isolation, appears to
endorse the proposition that a single justice's resolution of the
substantiality prong against the petitioner by itself signals
procedural default. In that case, the substantive issue underlying
the ineffective-assistance-of-appellate-counsel claim raised on
appeal to the single justice (specifically, the inconsistent
testimony of a particular witness) had already been reviewed and
rejected twice by the SJC, and was therefore neither new nor
substantial. See Costa,
The Single Justice's finding that neither of Costa's ineffective assistance of counsel claims presented "new and substantial questions" within the meaning of § 33E review constitutes an independent and adequate state ground. The Single Justice observed that both claims merely reiterated the same substantive challenge to [a trial witness's] credibility already decided against Costa on the merits. Although Costa argues that his ineffectiveness of appellate counsel claim necessarily presents a "new" question in that it could not have been raised until after his direct appeal, the Single Justice also found that this claim was not substantial, rendering Costa's "newness" argument, were it even
plausible, irrelevant. The Single Justice's
finding of a lack of substantiality
constitutes an independent and adequate state
ground in and of itself and acts to bar
federal review. Mendes,
Id. at 24 (emphasis added).
As the district court here noted, the underlined text in
particular is difficult to reconcile with our prior holdings,
discussed above, that a determination of an issue's
insubstantiality preserves federal merits review, provided that the
issue is also new. See, e.g. , Jewett,
We agree. Costa did not impose a new categorical bar to federal review of habeas petitions. Indeed, when read in conjunction with a footnote in the same case, it is clear that the Costa decision as a whole reaffirms the general principle that a single justice's determination that an issue is new but not substantial does not preclude federal habeas review on the merits. As we observed in that footnote:
This [the principle that a single
justice's explanation of her views as to why
claims are not new and not substantial does
not convert the decision into one on the
merits] accords with our prior case law. In
Jewett v. Brady,
Costa,
Thus, it is not the case that a single justice's finding of a lack of substantiality will always bar merits review. Rather, as per the facts of Costa, a finding of a lack of substantiality precludes review only when it is accompanied by the conclusion that the issue is also not new. In essence, it is only the failure to satisfy the "new" prong of the § 33E rule that signals procedural default.
Here, the single justice determined that Lee's claims
regarding ineffective assistance of trial counsel and prosecutorial
misconduct were not new because they could have been raised on
direct appeal or in his first motion for a new trial. As the
parties agree, such a finding amounts to a procedural default of
these claims. See, e.g., Yeboah-Sefah,
The absence of any definite finding as to newness
distinguishes this case from others such as Mendes, 656 F.3d at
130, and Yeboah-Sefah,
"Our inquiry does not, of course, end here. Even holding
that the [single] justice's decision rested not on procedural
default but on the merits of [the petitioner's] ineffective
assistance claim, we may not entertain habeas review if the merits
*18
determination was grounded in state law." Phoenix,
There is, however, an independent bar to habeas relief on
this ground. 28 U.S.C. § 2254(i) provides that "[t]he
ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for
relief in a proceeding arising under section 2254," as this appeal
does.
[6]
See also Martel v. Clair,
claim on grounds of procedural default.
[6] The claim of ineffective assistance of postconviction
counsel at issue here arises out of a motion for a new trial filed
after Lee's conviction became final on direct review; the motion
was not one filed pursuant to Mass. R. App. 19(d)(1), discussed
below, prior to plenary review by the SJC. As such, the proceeding
at issue is properly characterized as collateral in nature. See
Commonwealth v. Bray, 407 Mass. 296, 298 (1990) (citing
Commonwealth v. Breese,
We next consider whether the remaining claims of ineffective assistance of trial counsel and prosecutorial misconduct, though procedurally defaulted, may nevertheless be reviewed on the merits.
A claim that has been procedurally defaulted may
nevertheless be reviewed by a federal habeas court if the
petitioner demonstrates cause for the default and prejudice
resulting therefrom, or can show "that failure to consider the
federal claim will result in a fundamental miscarriage of justice."
Harris v. Reed,
Lee first argues that the attorney who handled his first motion for a new trial in 1989 was constitutionally ineffective in failing to present the trial-ineffectiveness claims raised by his current counsel in the latest motion for a new trial; this postconviction ineffectiveness, Lee maintains, constitutes cause for defaulting the trial claims.
"To establish cause, there must be 'some objective factor
external to the defense' which 'impeded counsel's efforts to comply
*21
with the State's procedural rule.'" Lynch,
Lee focuses on two recent Supreme Court cases that set
forth, as narrow exceptions to the Coleman rule, specific sets of
circumstances in which ineffective assistance of counsel in
postconviction proceedings will indeed be imputed to the state,
*22
thereby constituting cause for procedural default.
[7]
In Martinez v.
Ryan, 132 S. Ct. 1309, 1315 (2012), the Court addressed whether
ineffective assistance of counsel during collateral postconviction
proceedings could constitute cause for defaulting a claim of
ineffective assistance of trial counsel, in the context of a state
scheme that prohibited such claims from being raised on direct
review. The Court observed that "[b]y deliberately choosing to
move trial-ineffectiveness claims outside of the direct-appeal
process, where counsel is constitutionally guaranteed, the State
significantly diminishes prisoners' ability to file such claims."
Martinez,
(1) the claim of "ineffective assistance of trial counsel" [is] a "substantial" claim; (2) the "cause" consist[s] of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding [is] the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding."
Trevino v. Thaler,
A year later, in the case of Trevino v. Thaler, the Court
extended its holding in Martinez to include not just scenarios
where state law literally bars claims of ineffective assistance of
trial counsel from being raised on direct review, but also those
where, "as a matter of [the procedural system's] structure, design,
and operation[,] [it] does not offer most defendants a meaningful
opportunity to present [such claims] on direct appeal." 133 S. Ct.
at 1921. According to the Texas procedural framework at issue in
that case, the ability to raise a claim of ineffective assistance
of trial counsel on direct appeal existed as a hypothetical matter,
but in practice was so heavily circumscribed as to be rendered
effectively illusory. Although the Texas Court of Criminal Appeals
had recognized that ineffective assistance of trial counsel claims
typically must be substantiated by information in the trial record,
*24
convicted defendants only have thirty days after sentencing to file
a motion for a new trial in order to develop the record on appeal;
in addition, the trial court must dispose of such motions within
seventy-five days of sentencing. Id. at 1918 (citing Tex. R. App.
P. 21.4, 21.8(a), (c)). Critically, however, the trial transcript
need only be produced within 120 days of sentencing, and this
deadline may be extended. As a result, motions for a new trial
often must be made without the assistance of the trial transcript,
as was the case for Trevino. Id. at 1918–19 (citing Tex. R. App.
P. 35.2(b), 35.3(c)). "Thus, as the Court of Criminal Appeals has
concluded, in Texas 'a writ of habeas corpus' issued in state
collateral proceedings ordinarily 'is essential to gathering the
facts
necessary
to
.
.
.
evaluate
.
.
.
[ineffective-assistance-of-trial-counsel] claims,'" which, in
practice, cannot meaningfully be presented on direct appeal. Id.
(alterations in original) (quoting Ex parte Torres,
Taken together, the Martinez/Trevino exception applies
only in jurisdictions that effectively prohibit prisoners from
raising ineffective assistance of trial counsel claims on direct
appeal, either by letter or operation of the law. But, as
Respondent persuasively argues, that is not the state of the law in
Massachusetts. Although it is true, as Lee observes, that "the
preferred method for raising a claim of ineffective assistance of
*25
counsel is through a motion for a new trial," Commonwealth v.
Zinser,
Whereas the Texas system makes it "virtually impossible"
to develop a record substantiating an ineffective-assistance claim
*26
in time for consideration on direct appeal, Trevino,
We turn next to Lee's second claimed cause for default.
Lee argues that "[s]tate government officials have prevented [him]
from fully developing his claims of ineffective assistance of
counsel and prosecutorial misconduct by concealing evidence." Lee
maintains that this governmental intransigence constitutes "some
interference by officials ma[king] compliance [with a state
*27
procedural rule] impracticable," which suffices to show cause for
procedural default. Murray,
The problem with this contention is that, if true, all it shows is that current counsel is without certain documents; it does not account for whether or not those documents were in the possession of the postconviction counsel who committed procedural default by not raising certain claims in the first motion for a new trial. Even assuming that that attorney indeed did not have the documents, such a lack provides only an attenuated justification for defaulting ineffective assistance claims. [10] Lee makes no *28 attempt to explain, for example, how not having access to documents such as grand jury minutes prevented the postconviction counsel from raising a claim that trial counsel was ineffective in failing to call a competent firearms expert. See McCleskey v. Zant, 499 U.S. 467, 497 (1991) ("For cause to exist, the . . . government interference . . . must have prevented petitioner from raising the claim."). Consequently, Lee cannot establish cause for procedural default. In light of this conclusion, we do not reach the question whether Lee suffered prejudice as a result of the default.
We can still excuse procedural default upon a showing
that a failure to review the claims on the merits would result in
a "fundamental miscarriage of justice." Harris,
C. Motion for discovery
Lee contends finally that the district court erroneously
denied his motion for discovery. A denial of habeas relief is not
appealable unless the district court or court of appeals has issued
a certificate of appealability as to the issue or issues that the
petitioner wishes to raise. 28 U.S.C. § 2253(c). Here, the
*30
district court determined that a certificate of appealability
"should issue on all three claims," namely, ineffective assistance
of trial counsel, ineffective assistance of postconviction counsel,
and prosecutorial misconduct. Lee,
III. Conclusion
The district court properly held that Lee's claims of ineffective assistance of trial counsel and prosecutorial misconduct have been procedurally defaulted. Although the claim of ineffective assistance of postconviction counsel has not been procedurally defaulted, it nevertheless cannot form the basis of habeas relief, per 28 U.S.C. § 2254(i). We therefore AFFIRM the judgment of the district court.
Notes
[1] Brady was charged with conspiracy and accessory before the fact to murder. Before Lee's trial, she pleaded guilty to conspiracy, and the accessory charge was dismissed. She served seven years in prison, and died in 2001.
[2] As will be discussed below, in first-degree murder cases, Massachusetts allows for the filing of successive motions for a new trial following the affirmance of the defendant's conviction on direct appeal. Mass. Gen. Laws ch. 278, § 33E. However, an appeal from a denial of a motion for a new trial may only proceed to the full Supreme Judicial Court if a single justice of the SJC, acting as gatekeeper, determines that the appeal "presents a new and substantial question." Id. ; Napolitano v. Att'y Gen., 432 Mass. 240, 241 & n.2 (2000).
[3] As the district court summarized, the 2004 motion for a new trial put forward many grounds of ineffective assistance of trial counsel, including that: (1) he failed to call two main suspects — Brady's eldest son and that son's friend — as witnesses and instead allowed admission of their written statements to police to substitute for live testimony; (2) he failed to argue that Brady's ex-husband may have been the murderer, despite statements to the police by the victim and Brady that suggested the ex-husband might have shot the victim; (3) he failed to cross-examine Brady about her change of plea on the eve of trial and her prior inconsistent statements to the police; (4) he had an undisclosed conflict of interest, having represented Brady in a divorce proceeding several years prior to the trial; (5) he inadequately prepared, investigated, and presented evidence, including a complete failure to have any witnesses ready at the beginning of trial and his misstating of facts during his closing argument; (6) he was an alcoholic who drank during trial and was ultimately censured by the bar and is no longer practicing law; (7) he failed to hire a firearms expert at the outset of trial, and the one he hired mid-trial was incompetent; (8) he required assistance from the trial judge in framing foundation questions regarding Lee's character for truthfulness; and (9) he allowed Lee to be seated in the dock during trial. In addition, Lee advanced claims of prosecutorial misconduct, alleging that: (1) the police failed to investigate Lee's alibi, Brady's alibi, or those of Brady's eldest son and his friends; (2) the police threatened a witness; (3) the prosecutor failed to disclose exculpatory evidence; and (4) the Commonwealth's firearms expert failed to preserve, document, and measure evidence. Finally, Lee claimed that his post-conviction attorneys were ineffective for failing to raise these claims. Lee v. Corsini, No. 07-11316-MLW, 2013 WL 6865585, at *4-5 (D. Mass. Dec. 24, 2013) (citations omitted).
[4] The single justice referred to this claim as "ineffective assistance of appellate counsel who represented [Lee] on his first motion for new trial." For the sake of clarity, we refer to this claim as one of ineffective assistance of postconviction counsel, to distinguish the attorney in question from the one who handled Lee's direct appeal.
[5] Respondent argues that the single justice's failure to
"indicate, specifically or otherwise, that his decision was based
on anything other than waiver" distinguishes this case from Phoenix
v. Matesanz, where the single justice "specifically indicated that
he was not dismissing [the] ineffective assistance claim on the
ground of lack of novelty or on some other theory compatible with
waiver."
[7] Respondent argues that Lee has waived his arguments
concerning the applicability of these cases, Trevino v. Thaler, 133
S. Ct. 1911 (2013), and Martinez v. Ryan,
[8] This rule has been in effect in Massachusetts since 1973.
[9] We are not in a position to express an opinion regarding the veracity of Lee's claims that the district attorney's office and various police departments — not parties to this action — have not cooperated in turning over requested documents. We note, however, that Respondent substantially complied with Rule 5 of the Rules Governing Section 2254 Cases by filing state court docket sheets, court documents, and prior decisions with his supplemental answer.
[10] In a different section of his brief, Lee argues that the
government withheld certain documents from trial counsel, in
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Lee
forwards this contention while arguing the merits of his
prosecutorial misconduct claim; he makes no assertion that a Brady
violation constituted cause for procedural default. See Pratt v.
United States,