Gonzalez v. Russo

STEVEN GONZALEZ, Petitioner, v. LOIS RUSSO, Respondent.

Civil Action No. 16-cv-10218-IT

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 18, 2019

MEMORANDUM & ORDER

TALWANI, D.J.

Before the court is Steven Gonzalez's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#9]. In 2012, Petitioner was convicted of first-degree murder on the theory of deliberate premeditation and was sentenced to life in prison without the possibility of parole. He argues that his imprisonment is in violation of federal law based on ineffective assistance of counsel and improper instructions given to the jury. The court finds that Petitioner is not entitled to habeas review of his jury instruction claims because the claims were procedurally defaulted in state court and waived by Petitioner's failure to brief them here. The court does reach the merits of Petitioner's ineffective-assistance claim and finds that the state courts reasonably concluded that any errors by trial counsel did not violate Petitioner's rights under federal law. Accordingly, the petition is DENIED.

I. Brief Factual and Procedural History

Petitioner was arrested, tried, and convicted for the 2008 murder of Alexander Gautier. A complete accounting of the facts supported by the evidence presented at the trial is provided by the Massachusetts Supreme Judicial Court ("SJC") in its opinion denying Petitioner's appeal. The following parts of this account are relevant here:

The victim [Alexander Gautier] had controlled the sale of narcotics in the low-rise apartment buildings in the area of 244-266 Locust Street in Springfield, but left for Puerto Rico when a warrant issued for his arrest. In the victim's absence, Sammy Ramos (Sammy), a friend who operated an automobile dealership on Locust Street, took over the drug business on the block, and permitted others to sell drugs there, including two brothers, both named Jose Rodriguez. Also during the victim's absence, Jasson Gonzalez (Jasson) began selling drugs on the block without Sammy's permission and had other individuals, including Miguel Angel Nieves (known as Mikey), selling drugs for him. . . .

. . . .

The defendant was a heroin addict who supported his drug habit by theft, begging, and occasionally washing and detailing vehicles for Sammy at the dealership. He lived with his girl friend, Daneris Rivera (Daneris), in an apartment at 258 Locust Street. . . .

. . . .

Julia Rojas (Julia) is the former girl friend of Sammy's brother, and Sammy describes her as "like a daughter" to him.

Commonwealth v. Gonzalez, 473 Mass. 415, 416-17 (2015) (footnotes omitted).

On October 17, 2008, the victim returned to Springfield and made clear his intent to regain control of his drug territory. At approximately noon, the victim met with Sammy at the dealership and stated his interest in meeting with the people who had been selling drugs in his territory without permission.

. . . . While the victim was still at Sammy's dealership in the early afternoon, the victim spoke to the defendant in Sammy's presence. The victim told the defendant that he had to "stop stealing from the neighbors" or leave.

Id.

At approximately 5 p.m. on October 17, 2008, a man approached the victim, Alexander Gautier, and shot him in the face at close range with a sawed-off shotgun, killing him. . . .

. . . .

After the shooting, both Sammy and Julia gave statements to the police. Julia described what had occurred, identified the defendant as the shooter, and provided a description of the shotgun used in the attack.

Id. From their reports, the jury could find the following:

At approximately 4:30 p.m., Julia saw the defendant, whom she knew, speaking with Jasson and Mikey on the rear porch of the apartment building at 258 Locust Street. Shortly before 5 p.m., the victim and Sammy walked from the dealershipto the area behind 258 Locust Street, accompanied by the two Rodriguez brothers. Once they arrived, Sammy told Mikey to get Jasson so they could talk. The six men—the victim, Sammy, the two Rodriguez brothers, Jasson, and Mikey—began talking while standing in a semicircle on the pavement behind 258 Locust Street.

Julia was on the third-floor porch overlooking the back of 258 Locust Street, saw Sammy on the pavement with the others, and walked down the back stairs towards him. As she approached, she saw the defendant walk behind her wearing a black hooded sweatshirt and a mask. Sammy, who was standing next to the victim, also saw the defendant walk behind Julia and approach the group. As the defendant approached, Sammy saw him pull up a handkerchief from around his neck to cover his face. Once he reached the group, he pulled out a sawed-off shotgun and fired a single shot at the victim's face at close range, killing him. After the shotgun blast, Jasson, Mikey, and the Rodriguez brothers immediately scattered. Sammy testified that the defendant then pointed the shotgun at Sammy, who had fallen next to the victim, and told him, "This is not with you." . . .

Id. at 417.

Petitioner claims that he received ineffective assistance of counsel, at least in part, because his attorney failed to call two percipient witnesses—Julio Marcano and Officer Daniel Brunton. Pet'r's Mem. 10-14 [#27].

Mr. Marcano lived at the residence next door to the location of the shooting. Gonzalez, 473 Mass. at 423. After hearing the shotgun blast, he called 911 to report gunfire. Id. While on the phone with the dispatcher, approximately a minute after the shot was fired, he used a chair to look over the fence so that he could see the area the sound of the shot emerged from. Id. He described what he saw contemporaneously to the dispatcher. As summarized by the SJC, Mr. Marconi reported:

three "Spanish" people, including one female, walking east away from the body. At that moment, he noticed another "Spanish guy" walking "real fast" away from the body. Marcano thought that this person was involved in the shooting because he looked "real nervous" and "wanted to get out of there." That person walked up the back stairs to one of the buildings, pushed aside a group of people on the second-floor porch, and went into an apartment. The man looked to be in his early thirties, was dark skinned, and had short hair pulled into a small ponytail.

Id. Petitioner notes that this physical description does not describe him since he had light-coloredskin and wore his hair cut short. Pet'r's Mem. 11 [#27].

Mr. Gonzalez avers that testimony from another credible witness, Officer Brunton, is in "unity" with the account from Mr. Marcano. Id. Officer Brunton was a first-responder on the scene "moments" after the shooting. Gonzalez, 473 Mass. at 423. According to Officer Brunton's written report, a person on scene informed Officer Brunton that the shooter had fled into a particular apartment, and a team of officers, including Officer Brunton, investigated. Id. As the SJC describes it:

Officer Brunton and four fellow officers went up the rear stairs to that apartment, and while they remained outside the rear door, one of his fellow officers saw two Hispanic males inside the kitchen. When Officer Brunton knocked on the door, the two men fled the apartment. Officer Brunton then forced open the rear door of the apartment, but the officers were unable to locate the two individuals.

Id.

Petitioner claims that these two versions of events, which could have been retold had his attorney called these eyewitnesses to testify, would be able to "contradict" the testimony of the eyewitnesses who identified him, testimony that he called "scripted" and "doubtful." Pet'r's Mem. 12 [#27]. Furthermore, Petitioner argues, this testimony, if it had been offered, would augment the significance of other fact issues that, he believes, casts doubt upon his guilt. Id. at 12-14.

Petitioner also argues that he received ineffective assistance with his alibi defense, which he views as central to his claim that he was not the shooter. Id. at 4-10. . Petitioner claimed that at the time of the shooting (approximately 5 P.M.), he was helping his girlfriend, Daneris Rivera, move her clothes into a storage unit in Suffield, Connecticut. Gonzalez, 473 Mass. at 420. At trial, he refreshed his recollection that he was with Ms. Rivera in Suffield at that specific time by reviewing a receipt memorializing a transaction at the Connecticut storage facility. Id. at 419-20.¹ Ms. Rivera did not testify, and no other evidence was offered to corroborate Petitioner's claim that Ms. Rivera was not by herself at the time. Id. at 419-21.

Petitioner further testified that after spending time with Ms. Rivera, he visited with Carol Adorno. Id. at 419. Ms. Adorno lived with Petitioner's oldest sister at the time of the shooting. Id. Ms. Adorno, who was not interviewed regarding her testimony before she was called as a witness, testified that Petitioner arrived at her house at approximately 3:30 P.M. on the day of the shooting and remained there until nighttime. Id. at 419-20. Ms. Adorno further testified that she was with Petitioner at the house the entire time, except for a brief period when she and her husband left to retrieve Ms. Rivera's broken-down vehicle. Id. at 419. These two accounts of Petitioner's time were inconsistent and the prosecutor noted this inconsistency in his closing argument. Id. at 421 ("So he's in Connecticut with his girlfriend at 5:01, and he's at Carol Adorno's house at 3:00. Which is it?"). In Petitioner's estimation, the testimony provided by Ms. Adorno "undermined [his] entire defense." Pet'r's Mem. 7 [#27].

On August 3, 2012, a Hampden County Superior Court jury convicted Petitioner of first-degree murder on the theory of deliberate premeditation.

Following the conviction, Petitioner moved for a new trial partly based on the same claims brought here. Gonzalez, 473 Mass. at 420. The trial court denied Petitioner's motion and Petitioner appealed that denial. Petitioner also brought a direct appeal of the underlying conviction to...