Cruzado v. Alves

89 F.4th 64

Mario CRUZADO, Petitioner, Appellant, v. Nelson ALVES, Superintendent, MCI Norfolk, Respondent, Appellee.

No. 22-1027

United States Court of Appeals, First Circuit

December 22, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]

Emma Quinn-Judge, with whom Thomas Miller and Zalkind Duncan & Bernstein LLP were on brief, for appellant.

Eva M. Badway, Assistant Attorney General of Massachusetts, Criminal Bureau, with whom Andrea Joy Campbell, Attorney General of Massachusetts, and Tyler Mayo, Legal Intern, were on brief, for appellee.

Before Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

BARRON, Chief Judge.

Mario Cruzado ("Cruzado") appeals from the dismissal of his federal petition for writ of habeas corpus under 28 U.S.C. § 2254. The petition challenges his Massachusetts-law conviction for first-degree murder. After explaining the basis for our jurisdiction over this appeal, we affirm.

I.

Cruzado's conviction arose out of the following undisputed events. On November 26, 2010, Frederick Allen III's ("Allen") body was found in his apartment in Boston, Massachusetts. Allen was a gay, African-American man. The cause of his death was strangulation and blunt-force trauma to the head.

On December 7, 2010, investigators for the Boston Police Department brought Cruzado to the police station to question him about Allen's death. They showed Cruzado a picture of Allen, which gave rise to the following exchange:

Investigator 1 (I1): Okay. I'm going to show you a picture of a guy. See if you've ever seen this guy before.

Cruzado (C): Who's that?

I1: I'm asking you. Isn't this -- I'm asking you. Have you ever seen this guy before? Yes or no?

C: Who . . . is that? Just a guy?

I1: No, listen to me. Listen to me. Have you ever seen this guy before? Yes or no.

C: He looks like a nigger to me.

I1: Have you ever seen this guy before?

C: He looks like a nigger to me.

I1: Have you ever seen this guy right here before?

C: He looks like a nigger to me. No. He's black.

I1: No. It's a yes or no question.

C: He's black.

I1: I understand.

Investigator 2: Have you ever seen him?

I1: Yes or no?

C: Where . . . I've ever seen him? I don't know that mother fucker.

About three months later, in March 2011, Hilda Matiaz ("Matiaz"), a former girlfriend of Cruzado, told police that Cruzado had called her on December 7, 2010, to tell her about an incident in which he had met up with a friend, gone to the home of an African-American man, and then showered and fallen asleep there. Matiaz claimed that, in the account of the incident that Cruzado gave her, he awoke to the man touching his testicles and reacted by pushing the man away, putting the man in a headlock, and saying that he was "not a faggot." She further claimed that Cruzado told her that, when the man fell to the floor, Cruzado left the man's home.

In 2012, Cruzado was charged in Suffolk County Superior Court with first-degree murder for killing Allen. At the ensuing trial, the jury heard an uncensored and unredacted recording of the investigative interview that we have recounted above. The recording was submitted into evidence to show Cruzado's animus toward African Americans and thus to show Cruzado's partial motive for killing Allen.

The jury returned a guilty verdict, and Cruzado was convicted of first-degree murder under Massachusetts law. He was sentenced to a prison term of life.

Several years later, on July 1, 2016, Cruzado filed a motion for a new trial. The motion claimed that Cruzado had received ineffective assistance of counsel and thus that his conviction violated his right to counsel under the Sixth Amendment of the U.S. Constitution.

The state Superior Court judge denied the motion on March 30, 2017. Cruzado then filed a motion for reconsideration, which was also denied.

Cruzado appealed both his conviction and the denial of his motion for a new trial. He appealed his conviction based on, among other grounds, a challenge to the state trial judge's admission of the portion of the video recording of the interview described above. Cruzado appealed his first-degree murder conviction and the denial of his motion for a new trial directly to the Massachusetts Supreme Judicial Court ("SJC") pursuant to Mass. Gen. Laws ch. 278, § 33E. See Commonwealth v. Billingslea, 484 Mass. 606, 143 N.E.3d 425, 439 (2020). The SJC consolidated his appeals and denied them.

With respect to the admission of the recording, the SJC held that the state trial court did not abuse its discretion in determining that the probative value of the evidence outweighed its prejudicial effect because "[Massachusetts] is entitled to elicit the fact that [Cruzado] could have been enraged, not just because he was allegedly touched by [a] gay man, but he was allegedly touched by an African-American man." Commonwealth v. Cruzado, 480 Mass. 275, 103 N.E.3d 732, 737-38 (2018). The SJC also stated in a footnote that "[t]he defendant's argument that the admission of the word 'nigger' as evidence of racial animus violated his due process rights is unavailing, as the word came from his own mouth several times." Id. at 738 n.2.

On November 13, 2018, Cruzado filed a pro se petition for habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Massachusetts. The petition claimed that: (1) Cruzado's right to due process was violated when the state trial court allowed, over Cruzado's objection, admission of portions of the recorded police interview described above in which Cruzado used a racial slur in reference to the victim; and (2) Cruzado's trial counsel rendered constitutionally ineffective assistance by failing to file a motion to suppress the fruits of the search and seizure of a cell phone.

After appointing counsel for Cruzado, the District Court considered and denied Cruzado's petition in a November 3, 2021, memorandum and order. The District Court explained in the ruling that it was "not inclined to issue a certificate of appealability" but would "give Cruzado until December 3, 2021[,] to file a memorandum, if he seeks to address the issue of whether a certificate of appealability is warranted as to either or both grounds in the Petition."

On November 30, 2021, Cruzado filed a motion for an extension of time to December 10, 2021, to file a memorandum of law in support of the issuance of a certificate of appealability ("COA"). The District Court granted Cruzado's motion for an extension of time after noting that there was no objection to the motion by the respondent, Nelson Alves ("Alves"), Superintendent of Massachusetts Correctional Institution, Norfolk. Cruzado filed his memorandum of law in support of issuance of a COA on December 9, 2021.

The District Court issued a COA on January 4, 2022, as to the due-process-based claim only, and Cruzado filed a notice of appeal on the same day. This Court then entered an order on March 21, 2022, that directed Cruzado either to move for voluntary dismissal of the appeal pursuant to Federal Rule of Appellate Procedure 42(b) or to show cause, in writing, why his appeal should not be dismissed as untimely. The show-cause order noted that Cruzado filed a notice of appeal on January 4, 2022, from the District Court's November 3, 2021, decision denying his petition and that, under Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal in a civil case must be filed within thirty days of the judgment or order from which the appeal is taken.

Cruzado responded to the show-cause order on March 22, 2022. He stated in the response that he believed that no notice of appeal could be filed until a COA had been issued. On December 16, 2022, this Court issued an order that stated that Cruzado's appeal would be allowed to proceed without prejudice to further consideration of the jurisdictional question by the panel assigned to decide the merits of Cruzado's petition.

II.

We begin with the question of whether we have appellate jurisdiction. That question turns on whether Cruzado filed a timely notice of appeal. See 28 U.S.C. § 2253; Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Federal Rule of Appellate Procedure 3 sets forth the requirements that a filing must satisfy to constitute a notice of appeal, while Rule 4(a)(1)(A) provides that the notice of appeal in a civil case must be filed "within 30 days after entry of the judgment or order appealed from."

On January 4, 2022, Cruzado filed a document that constituted a notice of appeal under Rule 3. But that document was not timely under Rule 4(a)(1)(A), because the District Court denied Cruzado's petition on November 3, 2022.¹ Thus, Cruzado asks us to focus on a second filing that he made, which he contends was not only filed within Rule's 4(a)(1)(A)'s thirty-day window but also constituted a notice of appeal. The filing is the motion that Cruzado made on November 30, 2022, in which he sought an extension of time to file a memorandum of law in support of an application for a COA.

A.

Rule 3(c)(1) provides that a notice of appeal must name the parties taking the appeal, the judgment or order from which the appeal is being taken, and the court to which the appeal is being made. At the same time, Rule 3(c)(7) states that "[a]n appeal must not be dismissed for informality of form or title of the notice of appeal."

In Thomas v. Morton Int'l, Inc., 916 F.2d 39, 40 (1st Cir. 1990) (per curiam), we confronted a question about the kinds of filings that constitute notices of appeal. The issue arose in connection with a motion for an extension of time to file a notice of appeal. Id.

Notably, the plaintiff in Thomas had moved for an extension of time to file his notice of appeal on the ground that his counsel had learned of the granting of "Defendant's Motion to Dismiss" only a week earlier. The motion for an extension of time also stated that "[t]he [p]laintiff believes and avers that he has a...