Burgos v. Roden

LEYTON BURGOS, Petitioner, v. GARY RODEN, Respondent.

Civil No. 13-30202-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 20, 2015

MEMORANDUM AND ORDER ON MOTION TO DISMISS PETITION FOR HABEAS CORPUS (DOC. NO. 23)

SOROKIN, J.

Petitioner Leyton Burgos, a prisoner at the Massachusetts Correctional Institution in Norfolk, Massachusetts, has filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he raises five challenges to his conviction and sentence. Doc. No. 1. The respondent has moved to dismiss the petition for failure to state a claim meriting relief. Doc. No. 23. For the reasons that follow, the respondent's motion is ALLOWED and the petition is DISMISSED, as each of Burgos's claims is either meritless or procedurally defaulted.

I. BACKGROUND

On September 23, 1996, following a jury trial in Hampden County Superior Court, Burgos was convicted of being an accessory before the fact to first-degree murder. Commonwealth v. Burgos, 965 N.E.2d 854, 859 (Mass. 2012). He received a life sentence. Doc. No. 1 at 2;¹ S.A. at 162.² The charges against Burgos stemmed from a gang-related shooting that occurred in Springfield, Massachusetts, in May 1994. Burgos, 965 N.E.2d at 859. Burgos was a member of Los Solidos, one of three Latin street gangs operating in Springfield at the time. Id. His position within the gang was that of "enforcer," making him responsible for enforcing rules and ensuring "missions" - efforts to "exact violence against rival gang members as a means of dealing with various disputes" - were completed as planned. Id. During the relevant time period, Los Solidos was "at war" with a rival gang, La Familia, due to disputes about territories in which members of the gangs sold drugs. Id. On May 28, 1994, as part of this "war," two members of Los Solidos carried out a drive-by shooting in which the "godmother" of La Familia, Sylvia Ramirez, was fatally wounded. Id. at 859-61.

Burgos was accused of planning the shooting during a May 27, 1994 meeting with Miguel Moure, the president of the local chapter of Los Solidos, as well as other lower-ranking gang members. Id. at 859-60. The meeting took place in a State Street apartment that was a frequent Los Solidos hangout, and portions of the meeting were described by various witnesses at trial, including other gang members and occupants of the apartment. Id. Testimony of those witnesses suggested that Burgos aspired to earn a promotion within the gang by organizing missions to kill five people, and that the shooting of Ramirez was his first effort to achieve that goal. Id. With Moure's blessing, Burgos orchestrated the shooting by suggesting the target and location for the mission, then directing Erasmos Santos Vega (a Los Solidos "soldier") to steal acar to be used for the shooting. Id. He also selected and cleaned a firearm kept in the apartment for use in such missions. Id.

The next day, two other Los Solidos "soldiers" - Wilfredo Rosado and Jose Carrasquillo - met with a "warlord" who discussed the mission with them and provided the gun that Burgos had cleaned the previous day. Id. at 860. Burgos then joined the men, confirmed that Rosado and Carrasquillo knew what to do, and accompanied them to the car that Vega had stolen and parked nearby. Id. Rosado drove the car and Carrasquillo sat in the front passenger seat with the gun. Id. Burgos got in the back seat, but asked to be let out of the car shortly after they set out toward the location of the mission, stating he needed to return to the area near the State Street apartment. Id. Rosado and Carrasquillo continued on and completed the mission, with Carrasquillo shooting from the front passenger-side window as Rosado drove the car past a group of La Familia members at the designated location. Id. Ramirez was struck and later died. Id. at 860-61.

On June 20, 1994, police officers came to the State Street apartment looking for a juvenile runaway. Id. at 861. When they arrived, Burgos was present and was holding the gun that had been used in the shooting. Id. Upon seeing police through the peephole of the apartment's front door, Burgos tossed the gun beneath a couch before the police were permitted to enter. Id. The officers found and detained the runaway, searched the apartment with the permission of its primary tenant, seized three firearms (including the one used in the Ramirez shooting), and arrested one gang member (who had been sitting on the couch under which the firearm was found). Id. A few weeks later, before any charges had been filed against him related to the Ramirez shooting, Burgos moved to Puerto Rico to stay with his mother. Id. Hewas arrested there a year later when a warrant related to this case was discovered after he had applied for a private security job. Id.; S.A. at Tab 8, p.26.

At trial, the Commonwealth offered testimony from a number of witnesses, including Vega and Rosado, both of whom testified pursuant to cooperation agreements negotiated by their respective attorneys. Burgos, 965 N.E.2d at 862; S.A. at Tab 6, p.177. Vega was the only witness to testify that Burgos sought a promotion within the gang and directed Vega to steal a car for the mission. S.A. at Tab 6, pp.184-88. Rosado was the only witness to testify that Burgos was present immediately before the mission, including briefly in the car on the way to the mission. Id. at pp.243-46. And Vega and Rosado were the only two witnesses to testify that Burgos suggested the location for the mission. Id. at pp.187, 239. Both men denied having any specific, negotiated deals in place with prosecutors at the time of their testimony, although both agreed they had been promised, and expected, "consideration" for their "cooperation." Id. at pp.177, 198, 229, 257, 259.

Defense counsel offered testimony from another Los Solidos member, Ricardo Negron. Negron testified he was present at the State Street apartment on May 27 and 28, 1994, and that he witnessed no meeting involving Moure and Burgos, nor any other gang-related business that would distinguish those dates from any others. Id. at Tab 7, pp.172-74. However, on direct examination Negron described overhearing a conversation several days earlier in which two other gang members told Burgos someone had directed them that Ramirez should be killed. Id. at pp.174-76. He also testified on cross examination that he was shot outside the State Street apartment building on May 28, 1994, the same night as the Ramirez shooting, and he speculated that gang members risked death by testifying against other gang members. Id. at pp.187, 193.

Over defense counsel's objection, the trial court included a "consciousness of guilt" charge in the final jury instructions, based on evidence that Burgos had moved to Puerto Rico sometime after police confiscated the murder weapon in his presence. See id. at Tab 7, pp.70-83; id. at Tab 8, pp.134-35. Although the parties litigated the legal question of whether such an instruction was warranted, defense counsel did not challenge the content of the instruction at the time it was given. See id. at Tab 8, pp.149-50. Specifically, defense counsel did not object when the trial court charged the jury as follows: "You heard evidence suggesting that the defendant may have fled from Massachusetts after he discovered he was about to be charged with the offense for which he is now on trial." Id. at p.134 (emphasis added).

Burgos's timely direct appeal of his conviction and sentence was stayed by the Supreme Judicial Court ("SJC") in 1998 at his request, pending preparation and filing of a motion for a new trial. Burgos, 965 N.E.2d at 862; S.A. at 187. That motion was filed ten years later. Burgos, 965 N.E.2d at 862; S.A. at 6. After hearing oral argument on Burgos's claims, which included counsel ineffectiveness and prosecutorial misconduct, as well as challenges to the admission of testimony by Rosado and Vega and to the cooperation agreements with those witnesses, the trial court denied Burgos's motion. See generally S.A. at 162-75. The SJC affirmed Burgos's conviction and sentence and the denial of his motion for a new trial in an April 17, 2012 decision. See generally Burgos, 965 N.E.2d 854. In addition to the claims considered and rejected by the trial court, the SJC also rejected Burgos's direct appeal claim of trial court error related to the jury charge on consciousness of guilt. Id. at 867-69.

The SJC denied rehearing in June 2012, and the United States Supreme Court denied certiorari in December 2012. S.A. at 190. Burgos filed a timely, counseled federal habeaspetition in this Court on November 26, 2013 raising five claims, only three of which he has elected to pursue in his merits briefing:³

1) The prosecutor either knowingly elicited, or failed to correct, materially false testimony by Rosado and Vega regarding their cooperation agreements;

2) Defense counsel was ineffective in presenting Negron as a trial witness, in failing to object to improper cross-examination of Negron, and in failing to object to the trial judge's misstatement of facts in the jury charge on consciousness of guilt; and

3) The trial court misstated the evidence in its charge to the jury on consciousness of guilt.

Doc. No. 45; see also Doc. Nos. 1, 2. The merits of Burgos's claims have been fully briefed and are ripe for disposition.⁴

II. DISCUSSION

As set forth in detail in the sections that follow, Burgos is not entitled to federal habeas relief. Two of his claims are meritless, and the third is procedurally defaulted.

A. Meritless Claims

1. Legal Standard

Federal district courts may not grant a writ of habeas corpus unless they find that the state court's adjudication of the petitioner's claims "(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...