Fernandez v. Ryan, CIVIL ACTION No. 15-11116-RGS

LAZARO FERNANDEZ, Petitioner, v. KELLY RYAN, Respondent.

CIVIL ACTION No. 15-11116-RGS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

December 16, 2015

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C § 2254

I. Introduction

Lazaro Fernandez ("Fernandez" or "Petitioner") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 for violations of his constitutional rights. (#1.) In 2009, a Massachusetts jury found Fernandez guilty of one count of rape of a child under Mass. Gen. L. c. 265 § 23. (#1.) The United States of America ("Respondent or "Government") opposes the Petitioner's motion. (#18.)

II. Factual Background

On April 7, 2009, after nine day trial in Essex County, a jury convicted Fernandez of rape of a child stemming from an incident that took place on November 22, 2006 involving a then fourteen-year-old girl. (S.A., #3 at 2.)¹ The victim testified at trial that Fernandez orally raped her in the stairwell of her apartment building. (Tr. V, p. 224.) Her friend, Tanairi Portela, testified as the first complaint witness. (Tr. VII, p. 130.) That same day, the jury also convicted a co-defendant, Alberto Cardozo, for indecent assault and battery and child enticement stemming from a separate assault against the same victim that happened earlier that same day. (S.A., #3 at 2.) The victim was the daughter of Cardoza's girlfriend. (Tr. V, p. 160-68.) Fernandez was sentenced to a term of twelve to eighteen years in prison. (S.A., #3 at 3.)

III. Procedural Background

Fernandez filed a timely appeal on his conviction to the Massachusetts Appeals Court ("MAC") (S.A., #2.) On January 18, 2013, the MAC affirmed his conviction in an unpublished opinion. Commonwealth v. Fernandez, 83 Mass. App. Ct. 1107, 2013 WL 184023 (Mass. App. Ct. January 18, 2013) (table, text in Westlaw). On March 1, 2013, the Supreme Judicial Court ("SJC") denied further appellate review. Commonwealth v. Fernandez, 464 Mass. 1107 (2013) (table).

On November 25, 2013, Fernandez filed a pro se "Motion for New Trial and Motion for DNA Testing." (S.A., #7.) That motion was denied on December 4, 2013. (S.A. #8 at 4.) Fernandez appealed the trial judge's decision to the MAC, which issued a decision affirming the trial judge's decision. Commonwealth v. Fernandez, 86 Mass. App. Ct. 1123, 2014 WL6920655 (Mass. App. Ct. Dec. 10, 2014) (table, text in Westlaw). Again, Fernandez's request for further appellate review by the SJC was rejected. Commonwealth v. Fernandez, 470 Mass. 1107 (2015) (table).

On March 23, 2015, Fernandez filed a petition for habeas corpus relief with this court. 28 U.S.C. § 2254; (#1.) The respondent filed an answer and supplemental answer on June 10, 2015. (#12.) Fernandez was subsequently ordered to file a memorandum in support of his petition which he did on July 30, 2015. (#15.) The respondent filed a memorandum in opposition to the petition on August 27, 2015. (#18.) The case is now poised for disposition.

IV. Analysis

Fernandez seeks section 2254 relief based on two claims. First, he asserts his Sixth Amendment right to confront the witness against him was denied in violation of Crawford v. Washington, 541 U.S. 36 (2004), when the state allowed multiple "first complaint witnesses" to testify at his 2009 jury trial for rape of a child. (#15 at 1-2.) Second, Petitioner argues that DNA testing was sought and erroneously denied in violation of District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52, 72 (2009). (#15 at 3.)

A. Standard of Review

Applications for a writ of habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. Eligibility for relief under AEDPA is "intentionally difficult to meet." Woods v. Donald, ___ U.S.___, 135 S. Ct. 1372, 1376 (2015) (per curiam). A federal court may not issue a habeas petition on a claim that was fully adjudicated on the merits of state court proceedings unless the state court decision 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1) and (2).

A state court decision will be found "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decided a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A decision may be an "unreasonable application" of established federal law if a state court is able to correctly identify the governing principle from the Supreme Court's decision but unreasonably applies that principle to the case before it. Id. at 413. An "unreasonable application" requires "some increment of incorrectness beyond error...The increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgement of the federal court." McCambridge v. Hall, 303 F.3d 24, 36 (1^st Cir. 2002) (internal quotations and citation omitted).

This standard is difficult to meet because "the purpose of [the statute] is to ensure that federal habeas relief functions as a 'guard against extreme malfunctions on the state criminal justice systems,' and not as a means of error correction." Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 43 (2011) (citing Harrington v. Richter, 562 U.S. 86 (2011) (further citations omitted). The Supreme Court has explained that

this distinction creates a substantially higher threshold for obtaining relief than de novo review. AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.

Renico v. Lett, 559 U.S. 766, 773 (2010)(internal quotations and citations omitted).

Furthermore, because the habeas statute allows federal courts to grant relief only when state courts act unreasonably, it follows that "the more general the state rule at issue—and thus the greater potential for reasoned disagreement among fair-minded judges—the more leeway[state] courts have in reaching outcomes in case-by-case determinations." Id. at 776. See also, Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (where the federal standard is general, "a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard").

1. Ground One: Petitioner's Sixth Amendment Rights Were Violated When State Allowed Multiple "First Complaint" Witnesses to Testify at Trail

Petitioner alleges that he was denied his Sixth Amendment Confrontation Clause right when the state allowed multiple "first complaint" witnesses to testify at his 2009 jury trial. (#15 at 1-2.) He argues that because multiple witnesses took the stand and "repeat[ed] and reassert[ed]...what the previous witness has stated" the trial court made a prejudicial error. (#15 at 1.) Fernandez asserts his "Sixth Amendment right to confront his accuser was violated repeated and repetitiously by the trial court allowing the hearsay of the second, third, and fourth 'first complaint' witnesses." (#15 at 2-3.) The government argues that Fernandez is not entitled to federal habeas review of this claim because it was procedurally barred on independent state court grounds. (#18 at 5-6.) Moreover, the government contends that Fernandez cannot overcome this procedural default because he cannot show that denying federal review of his claims will constitute a "fundamental miscarriage of justice." (#18 at 6.) Finally, the Government argues that the state trial court did not improperly apply clearly established federal law in allowing "first complaint" testimony at trial. (#18 at 9.)

The "first complaint" doctrine in Massachusetts was formally adopted in Commonwealth v. King, 445 Mass. 217, 218 (2005) and replaced the older "fresh complaint" or "fresh witness" doctrine used in sexual assault cases. Under the new doctrine, the first complaint witness—usually the first person in whom the complaining witness confided about the alleged incident—may testify as to the details and circumstances surrounding the complaint. Id. at 219. Thisnarrow exception to the hearsay rule is to be used only in considering the complainant's credibility or reliability where the fact of the sexual assault is at issue. Id. Additionally, it seeks to eliminate prejudice by preventing subsequent witnesses from repeatedly testifying about the same, often horrific, details of the alleged incident which may inflame the jury. Id. at 243.

Under Mass. R. Crim. P. 30(b) a trial judge "may grant a new trial if it appears that justice may not have been done...and the trial judge shall make findings of fact necessary to resolve the defendant's allegations of error of law." In its decision the MAC reasoned that because Fernandez "failed to identify these [first complaint] witnesses and the improper testimony with appropriate record citation, and made no showing that the alleged error created a substantial risk of the miscarriage of justice," his motion should be denied as procedurally defaulted. Fernandez, 2014 WL 6910655 at *1. As the MAC found, Fernandez did not attempt to show that the alleged error — allowing multiple "first complaint" witnesses to testify — created a substantial risk of a miscarriage of justice as required by Mass. R. Crim. P. 30(b). The MAC also found that the defendant's motion could be denied solely for failing to rise to the level of an adequate appellate argument as required under Mass. R. App. P. 16(a)(4). Id. Given that the MAC's decision rested on independent state grounds, his claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991) (Court will not review decision that rests on a...