Logan v. Gelb

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

In this pro se petition for a writ of habeas corpus, the petitioner, Julian Castle Logan (formerly known as Joao Pedro Barbosá Jr.) (“Logan”), challenges his conviction in the Massachusetts Superior Court sitting in and for the County of Middlesex for deriving support from the earnings of a minor prostitute. He raises six grounds for the granting of the writ: (1) that his trial counsel was ineffective in violation of the Sixth Amendment by failing to object to hearsay testimony regarding the age of the alleged prostitute; (2) that the evidence offered by the government was insufficient to convict him; (3) that an expert witness offering testimony regarding prostitutes’ work habits and relationships with their pimps was not qualified to do so; (4) that the same expert witness impermissibly based his testimony on hearsay; (5) that the Commonwealth impermissibly used this expert’s opinion testimony as substantive evidence against Logan; and (6) that the fruits of local police officers’ investigations outside their jurisdiction should be suppressed.

A. Massachusetts Superior Court Proceedings

In Commonwealth v. Barbosa, 76 Mass.App.Ct. 1115, 2010 WL 680349 (Mar. 1, 2010), the Massachusetts Appeals Court (“Appeals Court”) described the underlying facts of this case, which this Court now “supplement[s] with other record facts consistent with the [court’s] findings.” Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir.2009) (quoting Healy v. Spencer, 453 F.3d 21, 22 (1st Cir.2006)).

On the evening of February 23, 2004, Detective Lawrence Hall [ (“Hall”) ] of the Everett police department was on Beecham Street in Everett, an area known by the police to be frequented by prostitutes. Hall saw two young women walking down the road smiling and waving at passing vehicles, consistent with invitations for the persons in the vehicles to stop. At one point, the women walked over to the parking lot of a nearby club, and the two women entered the back seat of a gray Saab convertible. (As shall be further described, the defendant was arrested in a gray Saab convertible.)

The following night, February 24, 2004, Detective Hall observed one of the same two women, later identified as Harriet [a pseudonym], again, out on the street, waving and smiling at passing vehicles on Beecham Street. A large delivery truck pulled over next to Harriet and she got in. The truck drove across the boundary line from Chelsea, where Harriet had been picked up, into Everett, then back into Chelsea. The truck stopped on a desolate side road. After trying to no avail to-contact the Chelsea police and the State police, Detective Richard Connor [ (“Connor”) ] of the Everett police department, also conducting surveillance in the area, observed Harriet performing oral sex on the driver.

Harriet was dropped off on Beecham Street and spoke briefly on a walkie-talkie. Thereafter, a large white sedan pulled up, and Harriet got in. The sedan drove to another desolate area. The police could not conduct direct surveillance to see what happened inside the white sedan. However, ten minutes later, the sedan returned to a vantage point from which the police saw Harriet get out of the car and again walk over to a gray Saab convertible parked in the same lot where the Saab had been the previous night. The Saab drove away. Hall radioed for a cruiser to stop the car. The defendant, who was driving the Saab, was arrested.

Barbosa, 2010 WL 680349 at *1. Logan was subsequently charged with violating, inter alia, Mass. Gen. Laws ch. 272, section 4B, which criminalizes deriving support from the earnings of a minor prostitute. Pet. Relief Conviction Sentence Person State Custody (“Pet.”) 2, ECF No. 1. An initial trial, running from August 20 to 22, 2007, ended in a mistrial due to a hung jury. Pet., Ex. 1, Def. Barbosa’s Mot. New Trial & Incorporated Mem. Law (“Mot. New Trial”) 1, ECF No. 1-1. Logan’s second trial ran from September 3 to 6, 2007. Id. There, in addition to testifying to the facts stated above,

Detective Hall testified that he had been on the police force for more than ten years and had spent the previous five years specializing in narcotics and prostitution investigations. Hall testified that he had made between sixty and seventy prostitution arrests over the course of his carder. Hall was qualified as an expert and testified that, at the time of the events in question, the average price for prostitution services of oral sex was between $40 and $60, and for vaginal intercourse was $100 or more. When the defendant was arrested in the gray Saab convertible on the second night of the police surveillance, the defendant had $1,459 in cash on his person. Harriet, who was also arrested, had $32 in cash on her person.

A social worker, [Rosa Andrade (“An-drade”),] without any objection, testified that Harriet’s birthday was November 21, 1988, and that she was fifteen years old on February 24, 2004.

Barbosa, 2010 WL 680349 at *1-2. An-drade further testified that she works with adolescents and that Harriet was an adolescent. Supplemental Ans., Tab 13, Trial Tr. vol. 1, 22:24-23:18, Sept. 5, 2007.¹ She had worked with Harriet for two years, beginning approximately one year after the incident for which Logan was on trial, see id. at 24:10-13; during her time with Harriet, Andrade helped her with placements, school, and “any other services that pertained to her well being,” id. at 23:9-20. On cross-examination, Andrade admitted that she had never seen Harriet’s birth certificate and that Harriet was born outside the United States. Id. at 25:21-26:5. At no point during the trial did Harriet herself testify. See Apr. 4, 2014 Mem. Law Supp. 28 U.S.C. § 2254 Pet. (“Pei’s Supp. Mem.”) 1, ECF No. 71. Prior to the close of the defense’s case, Logan moved for a required finding of not guilty based on the insufficiency of this evidence of Harriet’s age. Supplemental Ans., Tab 14, Trial Tr. vol. 2, 40:14-41:4, Sept. 6, 2007. The motion was denied, though the trial judge noted that it was a “close call.” Id. at 49:14-19. The jury convicted Logan on September 6, Pet. 2, and on September 11, Logan filed a motion for judgment notwithstanding the verdict, which was also denied, Mot. New Trial 1. On September 20, Logan was given a prison sentence of between five and eight years, which he is currently serving out at the Souza-Bara-nowski Correctional Center. Pet. 2.

B. Logan’s Direct Appeal

Logan filed a timely appeal, arguing two grounds for reversal: first, that the trial court should have granted his motion for a required finding of not guilty, and second, that the court should have excluded the testimony of Everett police detectives Hall and Connor regarding their observations in Chelsea as evidence gathered pursuant to an investigation made outside the geographical scope of their authority. Barbo-sa, 2010 WL 680349 at *1-2.

On March 10, 2010, the Appeals Court affirmed Logan’s conviction. Id. at *1. The court held that the trial testimony of Andrade, Hall, and Connor was “sufficient direct and circumstantial evidence that (1) Harriet was engaged in prostitution; (2) she was a minor; (3) the defendant knew Harriet was engaged in prostitution; and (4) the defendant derived support or shared in the monetary proceeds of prostitution, knowing that such proceeds were from the prostitution of Harriet.” Id. at *2 (citing Commonwealth v. Asmeron, 70 Mass.App.Ct. 667, 672, 875 N.E.2d 870 (2007)). The court further observed that circumstantial evidence may properly support a finding of guilt beyond a reasonable doubt, and that inferences from circumstantial evidence need not be inevitable in order to support such a verdict. Id. (citing Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989); Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977)). Regarding Logan’s second ground for appeal, the court noted that while police officers do have limited geographic authority to make stops and arrests, Hall and Connor only testified as “percipient witness[es]” regarding events in Chelsea, which is permissible under state law. Id. (“An officer may testify to events observed, even if the observations are made outside any town or city for which the officer works or where the officer has authority to arrest.”). On September 10, 2010, the Massachusetts Supreme Judicial Court (“SJC”) denied Logan’s application for leave to obtain further appellate review. Commonwealth v. Barbosa, 458 Mass. 1101, 934 N.E.2d 824 (2010).

C. Logan’s Motion for New Trial and Appeal

Logan filed a motion for a new trial on November 11, 2011. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus (“Resp’t’s Mem.”) 3, ECF No. 74. His motion for a new trial focused on five issues: (1) a claim that Logan’s trial counsel was constitutionally ineffective because he failed to object to Andrade’s testimony regarding Harriet’s date of birth as hearsay, thus allowing in noncumulative evidence of an element of the crime, Mot. New Trial 10-11; (2) a claim that Logan’s trial counsel was ineffective because he failed to investigate Logan’s claim that the $1459 found on his person at the time of his arrest came from a legitimate source, thus undercutting the Commonwealth’s evidence that he received support-from Harriet’s prostitution, id. at 11-13; (3) a claim that Hall’s expert testimony was, in essence, impermissible hearsay from out-of-court conversations with arrested prostitutes repackaged as expert opinion, id. at 13-18; (4) a claim that Hall blurred the lines between his roles as fact and expert witness and that the Commonwealth improperly used Hall’s expert testimony as direct substantive evidence of Logan’s guilt, id. at 18-22; and (5) a claim that Hall was not qualified to serve as an expert regarding typical prostitution practices, id. at 23. This motion for a new trial was denied in the Massachusetts Superior Court eleven days after it was filed, and Logan subsequently appealed this denial. Resp’t’s Mem. 3.

The Appeals Court affirmed the denial of Logan’s motion for a new trial on March 19, 2013. Commonwealth v. Barbosa, 83 Mass.App.Ct. 1119, 2013 WL 1103912 at *1 (March 19, 2013). Regarding Logan’s claim of ineffective assistance of counsel due to failure to object to hearsay, the court noted that because the issue had been addressed on direct appeal (albeit in the context of whether Andrade’s evidence had been sufficient to support a conviction), “it may be inferred that the defendant’s claim of ineffective assistance of counsel was considered and rejected.” Id. at *2 (citing Commonwealth v. Gambora, 457 Mass. 715, 731 n. 24, 933 N.E.2d 50 (2010) (noting that, in a case where the trial court had already admitted evidence as relevant over defense counsel’s objection, defense counsel was not ineffective for failing to file a futile motion to strike)). The court rejected the second ineffective assistance of counsel claim as well, ruling that the motion judge was within her discretion to disbelieve Logan’s assertion that he had explained to his trial counsel the legitimate source of the cash he was carrying at the time of arrest, particularly given that Logan failed to provide even the name of the attorney he allegedly told. Id.

Turning to the three claims relating to Hall’s testimony, the court noted that because none had been raised on direct appeal, the claims were waived and could only warrant a new trial if they gave rise to “a substantial risk of a miscarriage of justice,” which the court found was not the case. Id. at *1; see also Commonwealth v. Randolph, 438 Mass. 290, 293-95, 780 N.E.2d 58 (2002) (affirming this standard for review of a waived ground for post-conviction relief, and stating that failure to raise a known ground for relief on direct appeal constitutes a waiver). Under this standard, the court ruled that the trial judge’s qualification of Hall as an expert was well supported by the evidence, that Hall’s testimony was a sufficient synthesis of the alleged hearsay statements such that it did not create a risk of a miscarriage of justice, and that Hall’s expert testimony was sufficiently distinct from his fact testimony as to be permissible. Id. at *1-2. Logan filed an application for further appellate review with the SJC, which denied the application on June 6. Commonwealth v. Barbosa, 465 Mass. 1105, 989 N.E.2d 898 (2013).

D. Federal Habeas Petition

On June 26, 2013, Logan filed a petition for writ of habeas corpus in the U.S. District Court for the District of Massachusetts. Pet. He proposes six grounds for relief, raising claims that his counsel was constitutionally ineffective, id. at 6, that there was insufficient evidence to convict him, id. at 8, and that the police testimony against him was inadmissible for a variety of reasons, see id. at 9, 11, 13, 14. On behalf of the Commonwealth, the Respondent Bruce Gelb filed a memorandum in opposition to Logan’s petition on May 23, 2014. Resp’t’s Mem. Logan filed a reply on June 3, 2014. Pet’r’s Traverse Reply Resp’t’s Ans., ECF No. 75. The Court also notes that on October 15, 2013, Logan filed a motion for summary judgment on his petition. Mot. Supp. Summ. J., ECF No. 30.

II. ANALYSIS

A. Legal Standards

1. Habeas, AEDPA, and Procedural Default

Petitions in federal court seeking habeas relief from state convictions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214 (1996). This “formidable barrier to ... relief,” Burt v. Titlow, — U.S. -, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013), states in relevant part that:

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) (“Section 2254(d)”). Under the first prong of Section 2254(d)(1), habeas relief may be granted if the state court’s last adjudication on the merits uses a rule of law “that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a[n] ... opposite” result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Companonio v. O’Brien, 672 F.3d 101, 109 (1st Cir.2012). The second prong, meanwhile, applies when “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 prisoner’s case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. This prong also reaches situations in which the state court “unreasonably extends clearly established legal principles to a new context where they should not apply[,] or ... unreasonably refuses to extend established principles to a new context where they should apply.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir.2007) (citing L’Abbe v. DiPaolo, 311 F.3d 93, 96 (1st Cir.2002)). In this context, unreasonableness must transcend mere incorrectness in order for relief to be warranted. To be unreasonable, the state court decision must feature “ ‘some increment of incorrectness beyond error’ that is ‘great enough to make the decision unreasonable in the independent objective judgment of the federal court.’ ” Evans v. Thompson, 465 F.Supp.2d 62, 67 (D.Mass.2006) (quoting Norton v. Spencer, 351 F.3d 1, 8 (1st Cir.2003)), aff'd, 518 F.3d 1 (1st Cir.2008); see also Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1426, 179 L.Ed.2d 557 (2011) (“When § 2254(d)(1) applies, the question is whether ‘fairminded jurists could disagree on the correctness of the state court’s decision.’ ” (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011))).

Outside the bounds of AEDPA and Section 2254(d) (which apply only to state court judgments on the merits of an issue), a state conviction may evade federal habeas review entirely if the prisoner has failed to meet a state procedural requirement while petitioning the state court for relief on federal grounds, as this procedural default is an independent and adequate state ground for the. state court’s judgment. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Relevant to the instant case, failure to raise an issue on direct appeal when that issue was knowable at the time of that appeal constitutes a waiver of the issue, which is a procedural default for the purposes of habeas analysis. See, e.g., Decicco v. Spencer, 96 Fed.Appx. 730, 732-33 (1st Cir.2004). The Massachusetts practice of courts providing limited review of waived claims to address the risk of a miscarriage of justice does not itself count as the Commonwealth waiving a defendant’s procedural default. Burks v. Dubois, 55 F.3d 712, 716 n. 2 (1st Cir.1995). To obtain relief on a claim that has been procedurally defaulted, a petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The cause requirement must be satisfied by “some objective factor external to the defense which impeded counsel’s efforts to comply with the State procedural rule.” Lynch v. Ficco, 438 F.3d 85, 46 (1st Cir.2006) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)) (internal quotation marks omitted). Attorney error can constitute a cause of default under this standard only if it satisfies the Strickland test for constitutional deficiency, discussed below. See Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 1318, 182 L.Ed.2d 272 (2012); Murray, 477 U.S. at 488-89, 106 S.Ct. 2639. Further, to qualify as cause, the issue of constitutional ineffectiveness regarding each alleged attorney error must have been actually exhausted on its own—that is to say, arguments that attorney error was a proper cause for a procedural default may themselves be procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452-54, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). In the absence of cause and prejudice, a procedural default may be excused only if there is a fundamental miscarriage of justice, which is limited to circumstances where the alleged constitutional violation has probably resulted in the conviction of an innocent person. Coleman, 501 U.S. at 748, 111 S.Ct. 2546 (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639).

2. Ineffective Assistance of Counsel

A defendant alleging that his Sixth Amendment right to counsel was violated by virtue of his counsel’s ineffectiveness must satisfy the two-part test handed down by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the test asks whether the attorney’s challenged “acts or omissions were outside the wide range of professionally competent assistance.... [TJhe court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. In the habeas context, the combination of this deference to attorney conduct and the deference given to state judgments on the merits under AEDPA makes “[ejstablish-ing that a state court’s application of Strickland was unreasonable under [Section] 2254(d) ... all the more difficult.” Harrington, 131 S.Ct. at 788.

The second part of the Strickland test evaluates the prejudicial effect of the attorney’s error. The Court' must ask “whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Courts need not analyze both parts of the Strickland test; if a prejudice analysis alone is enough to dispose of a claim of ineffective assistance of counsel without requiring the court to “grade counsel’s performance,” the prejudice prong of the test may be approached first. 466 U.S. at 697, 104 S.Ct. 2052.

3. Sufficiency of Evidence

A court evaluating a federal claim that the government has provided insufficient evidence to support a conviction must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Similar to the double deference applied in Strickland claims under habeas review, the deference given to factfinders under the Jackson standard is compounded by the deference given to state courts when sufficiency of the evidence claims are raised in federal habeas proceedings stemming from state convictions. See Coleman v. Johnson, — U.S. -, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012) (per curiam). In Massachusetts, courts (including the Appeals Court in the direct appeal of the conviction in this case) hearing these claims use the similar Commonwealth v. Latimore standard, see 378 Mass. 671, 393 N.E.2d 370 (1979), which is at least as protective of defendants as is Jackson. See Leftwich v. Maloney, 532 F.3d 20, 23-24 (1st Cir.2008). Accordingly, Massachusetts courts applying the state Latimore standard may still receive deference from federal courts reviewing habeas petitions under Section 2254(d). Id.

B. Logan’s Grounds for Relief

1. Ineffective Assistance of Counsel

Logan argues that the only evidence proving Harriet was a minor—an essential element of the crime for which he was convicted—was Andrade’s testimony regarding Harriet’s birthday. Because An-drade had not seen Harriet’s birth certificate, Logan alleges that the only way that she could have known this information was if Harriet had told her herself; this, as an out-of-court statement being offered for the truth of the matter asserted, would be quintessential hearsay. See Pet. 6; Pet.’s Supp. Mem. 1-3. Logan further argues that his trial counsel was constitutionally ineffective for failing to object to this testimony as hearsay for, without this evidence, the Commonwealth would be unable to prove all elements of the crime and thus would have been constitutionally unable to convict. See Pet. 6, Pet’s Supp. Mem. 1-3.

The Commonwealth’s response brief charts the evolution of this claim and its relationship with Logan’s related claim that the evidence offered at trial was insufficient to support his conviction. During his direct appeal, Logan did not raise the ineffectiveness of his trial counsel for failure to object to hearsay as a freestanding issue, although he did allude to it briefly in his argument regarding sufficiency. Resp’t’s Mem. 9 (citing Supplemental Ans., Tab 1, Br. & Record App’x Appellant Joao Barbosa 40-41, Barbosa, 2010 WL 680349). His Strickland claim was raised as a distinct ground for relief for the first time in Logan’s motion for a new trial. See Mot. New Trial 10. In analyzing the appeal from the denial of this motion, the Appeals Court held that the rejection of Logan’s direct appeal regarding sufficiency of the evidence was a tacit rejection of his ineffective assistance of counsel claim as well. Barbosa, 2013 WL 1103912 at *2 (citing Gambora, 457 Mass. at 731 n. 24, 933 N.E.2d 50). This second holding, the Commonwealth argues, compels this Court to reject an ineffective assistance claim in Logan’s habeas petition as well. See Resp’t’s Mem. 10.

The Court is not fully persuaded that the Appeals Court ever did decide the Strickland issue on the merits,² but this is immaterial—no matter which way one approaches the question, Logan’s petition cannot be granted on this ground. If the Appeals Court did indeed implicitly reject the Strickland claim in the original appeal, then that constitutes a decision on the merits that triggers Section 2254(d) of AEDPA. Turning to the first prong, which asks whether the state court’s decision was contrary to established federal law, it is impossible to say what rule of law the Appeals Court applied in rejecting this claim, given that any such rejection was sub rosa. Accordingly, this Court has no basis for evaluating whether the Appeals Court employed a rule “contrary to” established Supreme Court law on this matter. Regarding the second part of Section 2254(d) regarding whether the state court decision being challenged was an unreasonable application of federal law, and given the multiple layers of deference that inhere when a court views the already deferential Strickland standard through the AEDPA lens, this Court rules that the Appeals Court was reasonable in concluding that Logan’s counsel was not constitutionally ineffective. Even a non-deferential analysis of this claim compels the same conclusion.

Setting aside AEDPA’s deference to state court decisions, Logan’s ineffective assistance of counsel claim still fails the prejudice prong of the Strickland test.³ Even if Logan’s counsel had successfully-had Harriet’s date of birth stricken from the record of Andrade’s testimony as hearsay, there was still ample evidence that would have permitted the jury to conclude beyond a reasonable doubt that Harriet was a minor. Andrade testified that she was an “adolescent social worker,” Trial Tr. vol. 1, 22:25, and that Harriet was “an adolescent assigned to [her]' caseload,” id. at 23:8; she further testified that part of her duties involved helping Harriet with issues at school, id. at 23:10-13. The jury also saw a photograph of Harriet taken approximately one year prior to the date of Logan’s arrest. See id. at 23:24-24:12 (dating the photograph to approximately January 2003). The prejudice prong of the Strickland test requires Logan to show that there is a reasonable probability that, but for the alleged constitutional deficiency, the outcome of the trial would have changed. Logan has failed to meet this burden: this Court is not persuaded that there is a reasonable probability that, in the face of all of this testimony, striking Andrade’s purported hearsay would have been enough to cast doubt on the jury’s finding that Harriet was a minor. Consequently, Logan was not prejudiced by his counsel’s alleged deficiency, and his habeas petition cannot be granted on that ground.

2. Hall’s Testimony

Logan further offers three grounds for his petition arising from the testimony offered by Everett police detective Hall. Logan argues that Hall should not have been qualified as an expert, that Hall’s testimony was simply repackaged inadmissible hearsay from women he had encountered during prostitution investigations, and that the Commonwealth improperly used Hall’s expert testimony as direct evidence of Logan’s guilt. Pet. 9, 11. The Commonwealth responds by arguing that each of these grounds has been procedurally defaulted, as Logan failed to raise them at various critical stages of either his direct appeal or motion for a new trial. See Resp’t’s Mem. 14-17. Two of these grounds were raised for the first time in the motion for a new trial rather than on direct appeal, while the third ground was not raised until the appeal of the rejection of that motion. See Barbosa, 2013 WL 1103912 at *1 & n. 1. Because a procedural default of this kind serves as an independent state law ground for the state court’s judgment, this Court cannot review Logan’s defaulted claims unless either the cause-and-prejudice test for excusing a procedural default is satisfied, or the denial of his petition raises the specter of a miscarriage of justice—that is to say, if the alleged constitutional error resulted in the conviction of someone who was most likely innocent of the crime charged.

Logan states that these three grounds for his petition were not raised on direct-appeal because they were overlooked by his counsel at that stage. See Pet. 10, 11, 13. This attorney error can only excuse the default of the claims related to Hall’s testimony if (1) the error was constitutionally ineffective under Strickland, see Martinez, 132 S.Ct. at 1318, and (2) that ineffectiveness was itself litigated and exhausted in the courts below, see Edwards, 529 U.S. at 451-52, 120 S.Ct. 1587. This Court need not evaluate whether Logan’s counsel on his direct appeal was actually deficient, as Logan has not previously argued that his counsel’s failure to raise the issues regarding Hall’s testimony amounted to unconstitutional ineffective assistance. See Barbosa, 2010 WL 680349 at *1-2 (showing no ineffective assistance of counsel claims argued before the court during the direct appeal); Mot. New Trial 10-13 (arguing during the motion for a new trial that the original counsel was ineffective at trial for failing to object to hearsay and for failing to investigate alternate sources for the cash on Logan’s person, but not raising claims of ineffectiveness with respect to Hall’s testimony); id. at 13-23 (asserting problems with Hall’s testimony without mentioning the ineffectiveness of counsel during the direct appeal). Accordingly, the issue of the failure of Logan’s counsel to raise these issues on direct appeal is itself defaulted and cannot serve as cause to excuse these claims’ procedural default.

Because Logan cannot meet the cause- and-prejudice test, this Court can only review these grounds for his petition if failure to do so creates a substantial risk of a miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. In reviewing Logan’s appeal from the rejection of his motion for a new trial, the Appeals Court applied a state analog to this miscarriage rule, finding that no such substantial risk arose from the admission of Hall’s testimony. See Barbosa, 2013 WL 1103912 at *1-2. This Court agrees with the Appeals Court’s assessment, as Logan’s arguments attacking Hall’s testimony fail to demonstrate actual constitutional violations (let alone ones that likely resulted in the conviction of an innocent person).

The Appeals Court concluded that Hall’s long experience in investigating prostitution amply qualified him as an expert, despite the fact that he has not published or lectured in the field. Id. at *1; cf. Rivera v. City of Worcester, No. 12-40066-TSH, 2014 WL 2781338 at *4 (D.Mass.June 17, 2014) (Hennessy, M.J.) (“A law enforcement officer’s testimony satisfies the Daubert [v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),] reliability requirement if the officer is qualified by training and experience to offer an opinion.” (quoting United States v. Motsenbocker, No. CR-10-371-D, 2011 WL 902121 at *2 (W.D.Okla. Mar. 15, 2011))). Indeed, at least under Mass. G. Evid. § 701, Hall may not have even needed to be qualified as an expert under Mass. G. Evid. § 702 in order to offer the testimony he gave. Cf. United States v. Ayala-Pizarro, 407 F.3d 25, 28-29 (1st Cir.2005) (holding that a police officer gave proper lay opinion testimony when he testified regarding how drug distribution points usually work and how heroin is usually packaged). Courts and commentators, however, are deeply divided over the propriety of so-called law enforcement experts. See, e.g., Brian R. Gallini, To Serve and Protect? Officers as Expert Witnesses in Federal Drug Prosecutions, 19 Geo. Mason L.Rev. 363 (2012); Joélle Anne Moreno, What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution?, 79 Tul. L. Rev. 1 (2004); Deon J. Nossel, Note, The Admissibility of Ultimate Issue Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 Colum. L. Rev. 231; cf. United States v. Hermanek, 289 F.3d 1076, 1092-96 (9th Cir.2002) (carrying out a rigorous Daubert expert qualification analysis of a law enforcement officer and ruling that the officer was not qualified); United States v. Green, 405 F.Supp.2d 104, 117-24 (D.Mass.2005) (Gertner, J.) (similar).

Whatever this Court may itself think of Hall as an “expert,” however, it is apparent that here he did not directly repeat any inadmissible hearsay statements made by women he encountered during prostitution investigations. Much like the testimony of a rape trauma counselor, see, e.g., Commonwealth v. Mamay, 407 Mass. 412, 421-22, 553 N.E.2d 945 (1990), or one skilled in analyzing battered women’s or children’s syndrome, see, e.g., Commonwealth v. Morris, 82 Mass.App.Ct. 427, 430-33, 974 N.E.2d 1152 (2012), Hall’s testimony represents a synthesis of information learned during these conversations into more generalized patterns, viewed through the lens of his lengthy experience. See Barbosa, 2013 WL 1103912 at *1. Most importantly, the Commonwealth did not use Hall’s expert testimony as direct evidence of Logan’s guilt, as Logan alleges; instead, it permissibly used that testimony as the yardstick against which other evidence directly pertaining to Logan was measured.⁴ See Trial Tr. vol. 2, 87:22-96:3 (showing the prosecutor repeatedly referencing Hall’s testimony describing typical pimp-prostitute relationships, then showing how other evidence directly pertaining to Logan fit that model).

Thus, because nothing Logan has alleged regarding Hall’s testimony was actually impermissible, this Court cannot rule that a constitutional error resulted in the conviction of an innocent person or that there was a miscarriage of justice, nor can the Court grant this petition on (or even directly review) the grounds that Logan has procedurally defaulted.

3. Sufficiency of Evidence Supporting a Conviction

Logan also argues that this Court ought grant' his habeas petition because the evidence used to convict him was legally insufficient. Pet. 8. He seeks to distinguish his case from those relied on by the Appeals Court in rejecting this same argu-merit/ on direct appeal, see Pet’s Supp. Mem. 4-6, and he further cites to cases in Massachusetts and Louisiana state courts in which evidence similar to that adduced in his own case was found insufficient to support a conviction for a substantially similar crime. See id. at 6-9. He also points to the trial judge’s statement that deciding Logan’s motion for a required verdict of not guilty presented a “close call,” arguing that this level of certitude fell short of the constitutional due process standard. See id. at 7-9. In response, the Commonwealth states that the Appeals Court squarely decided the issue of the sufficiency of the evidence on the merits in a way that was not contrary to, nor an unreasonable application of, the Supreme Court’s decision in Jackson v. Virginia, thus barring this Court from granting Logan’s petition under the stringent standards set by Section 2254(d)(1). See Resp’t’s Mem. 10-13.

The Commonwealth has the better of the argument. Because the Appeals Court squarely decided the issue when they affirmed Logan’s conviction on direct appeal, see Barbosa, 2010 WL 680349 at *1-2, this Court must review that decision under the deferential standard required by AEDPA’s Section 2254(d).⁵ This requires the Court to deny Logan’s petition unless the Appeals Court’s decision rejecting this argument was contrary to or an unreasonable application of the governing federal law as handed down by the Supreme Court. Here, the relevant standard for sufficiency of the evidence to support a conviction is articulated in Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781 (instructing courts to ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”). The Appeals Court’s decision on direct appeal cannot be said to be contrary to Jackson, as that court used a parallel state standard previously ruled by federal courts to be at least as protective of defendants as the federal one. See Leftwich, 532 F.3d at 23-24. Thus, Logan’s writ can only be granted on this ground if the Appeals Court was unreasonable in ruling the Jackson standard satisfied for each element of the crime—that Harriet was engaged in prostitution, that she was a minor, that Logan knew Harriet was engaged in prostitution, and that he shared in the monetary proceeds of this prostitution. This is a high bar for Logan to clear, as it involves both deference to the Appeals Court and a permissive standard that allows a conviction to stand if any rational trier of fact would have found Logan guilty beyond a reasonable doubt.

The Appeals Court was certainly not unreasonable in ruling the sufficiency standard satisfied, as there is more than enough circumstantial evidence of Logan’s guilt to permit a reasonable trier of fact to convict him. Testifying police detectives saw Harriet beckoning passing cars, getting into two vehicles, and performing oral sex on the driver of one of those vehicles on a deserted side road—conduct consistent with her being engaged in prostitution. Barbosa, 2010 WL 680349 at *1. Harriet’s use of a walkie-talkie between encounters, id., and the discovery of the matching walkie-talkie in Logan’s possession, Trial Tr. vol. 1, 60:15-61:1, are enough for a jury to conclude that he knew she was engaged in prostitution, as (particularly viewed in a light favorable to the Commonwealth) this is indicative of coordination regarding Harriet’s encounters. Moreover, when the defendant was later arrested in Harriet’s company, he had substantial amounts of cash while Harriet did not have on her person even the minimum amount of what Hall had testified she might have earned for the sex acts she had purportedly just performed. See Barbosa, 2010 WL 680349 at *1. This is enough for a jury to conclude that Logan had taken the money she had just earned. Id. Lastly, Andrade’s testimony—addressing both Harriet’s birthday and the fact that Harriet was an adolescent attending school— was enough to permit a jury to find that Harriet was a minor. The weight of all of this evidence is more than enough to convince this Court that the Appeals Court was not unreasonable in ruling the Jackson standard met. Accordingly, Logan’s petition cannot be granted on the ground that there was insufficient evidence to support his conviction.

4. Scope of Everett Police Investigatory Authority

Finally, Logan argues that because the Everett police detectives who testified at trial testified regarding events they witnessed in Chelsea—an area outside the geographic scope of their statutory authority—their observations violated the Fourth Amendment prohibition of unreasonable searches and seizures and ought be suppressed as fruit of the poisonous tree. See Pet’s Supp. Mem. 21-24. In response, the Commonwealth argues that this ground for the petition rests entirely on state law and is thus not cognizable in federal court. See Resp’t’s Mem. 17-19.

Distilled to its essence, Logan’s claim suggests that an alleged violation of state law requires suppression under the Fourth -Amendment. The Fourth Amendment gloss to this argument is being raised for the first time in Logan’s federal habeas petition, as the issue of the propriety of the officers’ observation testimony rested solely on state law when it was raised on direct appeal. See Barbosa, 2010 WL 680349 at *2 (analyzing whether the officers’ testimony violated their state statutory authority). If the Fourth Amendment issue is truly new, then Logan has failed to meet the requirement of exhaustion, as this petition marks the first time the precise legal issue has been raised before any court. See 28 U.S.C. § 2254(b)(1)(A) (forbidding federal courts from granting habe-as petitions if the petitioner has not “exhausted the remedies available in the courts of the State” that issued the challenged judgment); Rashad v. Walsh, 300 F.3d 27, 41 (1st Cir.2002) (“[T]o achieve exhaustion, the petitioner must have presented both the factual and legal underpinnings of his federal claim to the state’s highest court.” (citing Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir.1994))). To be considered exhausted, Logan’s claim must be limited to the same one he raised on direct appeal. If that is the case, however, the claim is not cognizable before this Court, as federal courts are not empowered to grant habeas relief for an alleged error that was strictly a violation of state law. See Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (suggesting that state court rulings regarding state law are binding on federal courts unless a state judgment “appears to be ‘an obvious subterfuge to evade consideration of a federal issue’ ” (quoting Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129, 65 S.Ct. 1475, 89 L.Ed. 569 (1945))); see also 28 U.S.C. § 2254(a) (limiting the grounds for the granting of federal habeas petitions to violations of the “Constitution or laws or treaties of the United States”).

Even if this Court could hear the Fourth Amendment issue, it could not grant Logan’s petition on the grounds that the officers conducted their investigation outside the scope of their state-granted authority. First, the violation of a state law cannot itself form the basis for a valid Fourth Amendment claim'—only a violation of independent constitutional rules can.⁶ See, e.g., United States v. Coleman, 162 F.Supp.2d 582, 586 (N.D.Tex.2001) (finding that even though police officers broke state law by making an arrest outside the geographic scope of their authority, this state law violation was immaterial to whether there was a Fourth Amendment claim). Second, the officers who testified at Logan’s trial broke no federal constitutional rules. Their observations of Harriet were permissible, see United States v. Knotts, 460 U.S. 276, 281-82, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1988) (affirming that visual surveillance of actions in public places cannot be a Fourth Amendment violation), and these observations gave them reasonable grounds to believe that Logan had committed a felony and to arrest him without first obtaining a warrant, see United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (articulating the standard for probable cause permitting a warrantless arrest). Accordingly, for multiple reasons, the purported impropriety of admitting the officers’ observation testimony cannot support Logan’s petition for a writ of habeas corpus.

III. CONCLUSION

For the aforementioned reasons, Logan’s petition for a writ of habeas corpus, ECF. No. 1, is DENIED.

SO ORDERED.

Notes

1 . This document, comprising Gelb’s supplemental answer to Logan's petition and containing (inter alia) transcripts of the Massa- ’ chusetts Superior Court proceedings against Logan, was provided to the Court in hard copy by the Office of the Attorney General of the Commonwealth. It has not been electronically docketed in the instant proceedings.

2 . The Court’s skepticism on this point stems largely from critical distinctions between the instant case and Gambora, the case the Appeals Court relied on in holding that Logan’s claim had been implicitly considered and rejected. In Gambora, the trial judge admitted evidence regarding a shoe print over defense counsel’s relevancy objection. 457 Mass. at 730-31, 933 N.E.2d 50. On appeal, the defendant claimed that his counsel’s subsequent failure to move to strike the evidence constituted ineffective assistance of counsel. Id. at 731 n. 24, 933 N.E.2d 50. The SJC rejected this argument; because the trial court had already squarely decided the issue of relevance, it would have been futile for defense counsel to move to strike, as failing to make a futile motion could not support a Strickland claim. Id.

Unlike in Gambora, where counsel's alleged failure was coterminous with an issue already decided by the court, the failure that Logan alleges does not overlap quite so neatly with the Appeals Court's analysis of his direct appeal. That court decided the issue of whether Logan’s conviction could be supported by the evidence as admitted; it treats as given that Andrade’s testimony regarding Harriet's birthday could be considered by the jury. See Barbosa, 2010 WL 680349 at *2. Logan's Strickland claim is orthogonal to this inquiry, as it hinges not on whether the evidence was sufficient as admitted, but on whether the evidence in question should have been admitted in the first place. Accordingly, this Court is not certain that the courts of the Commonwealth ever did deal with the Strickland claim directly.

The only thing that gives the Court pause is the fact that Logan did include scattered references to the ineffective assistance of counsel issue in his direct appeal briefing on the question of sufficiency. See Resp't’s Mem. 9. Ultimately, however, because the issue does not affect this Court’s holding, this Court need not determine conclusively whether the Appeals Court decided the Strickland issue on the merits or not.

3 . This Court need not rely on an analysis of Logan's counsel's purported deficiency, as his ineffective assistance claim may be disposed of simply by looking at the prejudice part of the test. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. There is, however, a plausible argument that Logan's claim fails the deficiency prong as well.

Counsel cannot be found deficient for failing to pursue a futile tactic. See, e.g., Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir.1999); Breese v. Commonwealth, 415 Mass. 249, 256, 612 N.E.2d 1170 (1993). One such example of futility would be making a hearsay objection to testimony regarding an out-of-court statement that falls within a hearsay exception. Cf. Lynch v. Ficco, CIV.A.04-10502-RWZ, 2004 WL 3091174 at *2 (D.Mass. Dec. 16, 2004) (Zobel, J.) (noting that it would be futile to attempt to introduce hearsay testimony that does not fall within an exception), aff'd, 438 F.3d 35 (1st Cir.2006). Andrade’s testimony regarding Harriet's birthday possibly could have been admitted under Mass. G. Evid. § 804(b)(4)(A), which allows third parties to testify to any statements made by an unavailable declarant regarding their own birth. Andrade testified that she learned of Harriet's birthday "during the course of [her] relationship with [Harriet],” which (given that Andrade had never seen Harriet's birth certificate) indicates that Andrade most likely learned this information from Harriet herself. Trial Tr. vol. 1, 23:14-16.

Consequently, the admissibility of An-drade’s statement would hinge on whether Harriet was unavailable to serve as a witness. Unavailability is defined in relevant part as a situation in which "the declarant ... is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.” Mass. G. Evid. § 804(a)(5). The record indicates that Harriet was an uncooperative witness and that the Commonwealth, the party seeking to introduce Harriet’s out-of-court statement, had attempted to contact Harriet by phone for a week and a half with no success. Trial Tr. vol. 2, 56:11-24. The trial court in this case, however, granted the defense a missing witness jury instruction allowing the jury to draw inferences against the Commonwealth from Harriet’s absence, as Andrade purportedly had Harriet's address and the Commonwealth did not try to compel Harriet’s presence via a subpoena or court order. Id. Despite this, considering the wide latitude given to attorneys under the deferential Strickland standard, it is possible that an attorney acting within the bounds of reason would believe that Harriet qualified as unavailable—thus rendering Andrade’s testimony admissible, an objection to it futile, and the attorney’s failure to make such an objection constitutionally permissible.

The Court further notes that this unavailability analysis would be unnecessary under the Federal Rules of Evidence, as Fed.R.Evid. 803(19) creates a hearsay exception allowing "a person's associates” to testify regarding the reputation concerning that person’s birth, regardless of the subject’s availability. An-drade, as Harriet’s social worker of two years, likely would have qualified as such an associate competent to testify to this issue. The Massachusetts analog to this rule—Mass. G. Evid. § 803(19)—is limited to family members, however, meaning that Andrade’s testimony would have to come in under Rule 804(b)(4)(A) instead.

4 . Logan argues that this violated the jury instruction of the experienced trial judge barring Hall's opinion testimony from being considered as "substantive proof of guilt,” Pet.'s Supp. Mem. 20, but this argument misunderstands the role of expert testimony. This instruction does not mean that the Commonwealth cannot use the expert testimony to aid its case against the defendant—indeed, such a rule would defeat the purpose of having expert witnesses entirely. Rather, it simply means that the jury may not look solely to Hall’s -generalized patterns to determine the individual defendant’s guilt; it may only use those patterns as a way of understanding other evidence that pertains directly to the defendant himself.

5 . There is also a plausible argument that this ground for Logan’s petition is procedurally defaulted, as he failed to raise it during collateral proceedings in his motion for a new trial before the state courts. See Mot. New Trial. Logan offers no justification sufficient to meet the cause-and-prejudice test for excusing such a default. See Pet. 8-9. This Court need not determine whether this ground is procedurally defaulted, however, because this ground cannot support the granting of the writ even if it is permitted to be brought before the Court here.

6 . The Court also notes that even if a state law violation could support a Fourth Amendment claim on its own, there was no violation of state law here—when Logan questioned the authority of the police officers on his direct appeal, the Appeals Court found that the relevant rules only limited the officers’ authority to make stops and arrests, not their authority to make observations. See Barbosa, 2010 WL 680349 at *2.

Case Details

Case Name: Logan v. Gelb

Court Name: District Court, D. Massachusetts

Date Published: Sep 25, 2014

Citation: 52 F. Supp. 3d 122

Docket Number: Civil Action No. 1:13-cv-11534-WGY

Court Abbreviation: D. Mass.