Hammond v. Verdini

377 F.Supp.2d 296

Andrew J. HAMMOND, III, Petitioner, v. Paul VERDINI, Respondent.

No. CIV.A.02-10008WGY.

United States District Court, D. Massachusetts.

March 3, 2005.

Dean A. Mazzone, Attorney General's Office, Boston, MA, for Paul Verdini, Paul Verdini, Respondents.

Michael R. Schneider, Salsberg & Schneider, Boston, MA, for Andrew J. Hammond, III, Petitioner.

ORDER

YOUNG, Chief Judge.

The docket reflects the following entry.

"3/3/2005 [Chief] Judge William G. Young: Electronic Order entered. Order Adopting Report and Recommendation for [29] Report and Recommendations. Action on motion: After careful review of the entire record and review of the objections to the Report and Recommendation, the objections are overruled and the report and recommendation is adopted in its entirety. Accordingly, the petition for writ of habeas corpus is denied."

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (# 1)

COLLINGS, United States Magistrate Judge.

I. Introduction

On or about January 2, 2002, Andrew J. Hammond, III ("Hammond" or the "petitioner") commenced the instant action by filing a petition for writ of habeas corpus (the "petition") pursuant to 28 U.S.C. § 2254(# 1), a supporting memorandum of law (# 3) and a supporting record appendix (# 4). On May 9, 2002, the respondent Paul Verdini ("Verdini" or the "respondent") submitted an Answer to the petition (# 7), Supplemental Answer (# 10) and a Motion to Dismiss the petition (# 8) with supporting memorandum of law (# 9) in which he argued that the petitioner's petition for writ of habeas corpus should be dismissed because the petitioner had failed to exhaust available state court remedies as to Ground 2 of the petition. On May 14, 2002, the petitioner submitted a Response to the Motion to Dismiss (# 11)¹ and on June 4, 2002, this Court issued a Report and Recommendation (# 13), recommending that Ground 2 of the petition be dismissed on the merits. On June 21, 2002, the District Court judge to whom this case is assigned (Wolf, J.) issued an Order (# 14) allowing the motion to dismiss as to Ground 2, ordering the respondent to file a memorandum of law addressing the merits of Grounds 1 and 3 of the petition and referring this case to the undersigned for the issuance of a Report and Recommendation. After being granted several enlargements of time, the respondent finally filed his memorandum in opposition to the petition on September 30, 2002(# 19).

On November 13, 2002, this Court issued a procedural order (# 23) requesting that the parties file additional memoranda of law directed to four specific questions. The parties timely filed such memoranda (see 24, 26), and on January 2, 2003, in response to a request from the Court, the respondent filed trial and hearing transcripts from the state court proceedings in this case. (# 28).

II. The Facts and the Procedural History²

On April 26, 1994, a quarter-stick of dynamite taped to a rock crashed through the window of the residence at 15 Winter Road, Woburn, Massachusetts. (# 19 at p. 4). The device exploded in the hand of Jennifer Galante, injuring her severely and causing damage to the house. (# 19 at p. 4).

Some days before the April 26 explosion, the petitioner was with three friends in Billerica. (Id.). One of them, Leonard Pearlstein, had brought quarter-sticks of dynamite, sometimes called M-80's. (Id.). Pearlstein took a stick out, put it in a milk carton, lit the fuse and the four young men watched it explode. (# 19 at p. 4). The petitioner observed, "it could do a lot of harm." (Id.). He paid Pearlstein five dollars for a quarter-stick, and Pearlstein and the petitioner taped the quarter-stick to a rock. (Id.). On the tape was a hand written message saying, "Don't fuck with me [word missing] cunt." (Id.). The petitioner gave Pearlstein Jennifer Galante's address and directions to her house, saying that he wanted to scare her. (Id.).

On April 26, 1994, there was a gathering at Pearlstein's house at which Hammond and three others, Jeff McMillan, Marc Perry and Mark Hamilton, were present. (Id.). Later that day, the petitioner, McMillan, Pearlstein and Perry regrouped at Boomer's, a pool hall. (Id.). Perry stayed in the car in which he had arrived, a stolen BMW, while the others talked for some minutes. (Id.). Then, McMillan and Pearlstein rejoined Perry, McMillan announcing, "We are going for a ride in the car." (Id.). Pearlstein directed Perry to the Galante house, and when they arrived, McMillan got out of the car and returned in about forty seconds, shouting "go, go, go." (Id.). As they sped away, Perry heard a "big boom," followed by screams. (Id.). The three returned to Boomer's where the petitioner was in the parking lot and asked "was it done?" (Id.). Pearlstein said, "it was done" and the two slapped high five. (# 19 at p. 4).³

On June 6, 1994, a Middlesex County, Massachusetts grand jury returned five indictments against the petitioner. (Id. at p. 2). He was charged in two of the indictments with maiming Jennifer Galante and causing an explosion with injury to her; in the remaining three indictments, it was charged that the petitioner threw an explosive into Galante's house or possessed an explosive with the intent to damage property or injure a person, that he unlawfully possessed an infernal machine and that he conspired with Pearlstein and McMillan to throw explosives at or near persons or property. (Id.). On November 9, 1994, the petitioner moved to dismiss the indictments. (Id.).

On June 28, 1996, a Middlesex County Grand Jury returned three indictments, alleging that the petitioner was an accessory before the fact to three felonies committed by Pearlstein and McMillan: mayhem, causing an explosion which damaged property or injured a person, and willfully throwing, placing, or possessing an explosive with intent to injure a person or damage property. (# 19 at p. 2). On January 6, 1997, the Commonwealth of Massachusetts (the "Commonwealth") nol prossed⁴ the five 1994 indictments. (Id.).

One of the witnesses at trial against the petitioner was one Darrin Turner. (# 3 at p. 10). Turner testified that sometime before the explosion at the Galante house, he spent time with the petitioner and Pearlstein and Harris in Billerica. (Id.). According to Turner, after Pearlstein pulled a "quarter stick" from his car, "stuck it in a milk carton," and exploded it, the petitioner stated that it "could do a lot of harm" and asked Pearlstein if he had any more. (Id.). According to Turner, the petitioner asked the others whether they "wanted to take a ride with him over to Woburn to scare his ex-girlfriend", specifically mentioning the name Jennifer Galante (although Galante had never been involved with the petitioner). (Id. at p. 11). Turner insisted that the petitioner told him that he wanted to scare Galante "cause a couple of weeks before they got in a huge fight and broke up." (Id.). Turner further testified that before the group dispersed, he believed that the petitioner gave Pearlstein five dollars for an M-80 along with directions to Galante's home and that Pearlstein put the M-80 underneath the seat in his car. (# 3 at p. 11).

When Turner eventually spoke to the police about the incident over two years later, he was directed by the police to draft a handwritten statement. (Id. at pp. 11-12). Trooper Mark Horgan, one of the interrogating officers, testified that he took Turner's statement and rewrote it himself because Turner's original statement did not encompass everything. (Id. at p. 12). He then gave the rewritten statement back to Turner, had him read it, initial it and sign it. (Id.).

After trial, Turner admitted that not everything in the statement drafted by Horgan was true, including the assertion that the petitioner had taped the quarter stick to the rock. (Id. at pp. 12-13). Turner claimed that he was not "promised anything" by the police officers in connection with his trial testimony. (Id. at p. 13).

On January 10, 1997, a jury convicted the petitioner of being an accessory before the fact to causing a malicious explosion and of so much of the other felony as alleged throwing and possessing (but not placing) an explosive with intent to injure a person and damage property; the jury acquitted the petitioner of being an accessory before the fact to mayhem. (Id.).

On February 7, 1997, the trial judge (Zobel, J.) sentenced the petitioner to two consecutive terms in state prison: 18-20 years on the malicious explosion charge and 12-15 years on the remaining charge. (# 19 at p. 3). The petitioner filed a notice of appeal on the same day, and on November 18, 1997, the petitioner filed a motion for new trial. (Id.). On May 11 and 13, 1997, the trial judge held an evidentiary hearing on the motion and heard testimony from four witnesses. (Id.). The petitioner's motion for new trial was supported by affidavits from Turner and McMillan repudiating trial evidence regarding the petitioner. (# 3 at p. 17). At the evidentiary hearing, the petitioner's counsel sought to call McMillan, but the judge excluded McMillan's evidence, ruling that by pleading guilty prior to the petitioner's trial, McMillan waived his right against self-incrimination and that therefore his testimony was not "newly discovered." (Id. at pp. 17-18). The judge, however, permitted Turner to assert his privilege against self-incrimination when the petitioner's counsel attempted to question him about his recantation. (Id. at p. 18). The petitioner's counsel was allowed to introduce into evidence Turner's affidavit recanting much of his trial testimony. (Id.).

At the evidentiary hearing, evidence emerged for the first time that the Fire Marshall's office had been offering a financial reward for information leading to the arrest and conviction of the persons responsible for the bomb at the Galante's house, that Horgan submitted Turner's name to the committee responsible for awarding the money, and that at some...