Hernandez v. Commonwealth

234 F.Supp.3d 316

Ariel HERNANDEZ, Petitioner,

v.COMMONWEALTH of Massachusetts, Respondent.

CIVIL ACTION NO. NO.16–10953–DPW

United States District Court, D. Massachusetts.

Signed January 19, 2017

Ariel Hernandez, Gardner, MA, Pro Se

Jennifer K. Zalnasky, Office of the Attorney General, Springfield, MA, for Respondent.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

Ariel Hernandez seeks to vacate his Massachusetts state court convictions on armed robbery, first degree murder, armed home invasion, and weapons charges. Hernandez contends the Massachusetts state courts wrongfully denied: (1) his motion to suppress firearm evidence, (2) his motion to sever his trial from that of two co-defendants, and (3) his motion to sever the several charges against him.

I. BACKGROUND

A. Factual Background

In federal habeas proceedings challenging state convictions, determinations of factual issues made by the state courts are presumed correct, and the petitioner has the burden of rebutting that presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Hernandez has undertaken no such showing here, consequently I presume the state court findings of fact are correct, and will accept the SJC's findings in making my legal rulings in this matter. See Pina v. Maloney , 565 F.3d 48, 50 (1st Cir. 2009) (relying on facts as recounted by SJC supplemented with other facts in the record consistent with SJC's decision).

On October 22, 2009 Hernandez, along with Giovanni Hill, Darien Doby and Tim Brown drove slowly by the armed robbery victims, Sophia Deno and Ashley Cardoso, twice and then parked around the corner from them. Com. v. Hernandez , 473 Mass. 379, 42 N.E.3d 1064, 1072 (2015). The vehicle was a green Honda Civic with a Dominican flag hanging from the rear view mirror and was owned by Hernandez's sister. Hernandez and Hill got out of the vehicle and removed a firearm from the trunk, after which Hernandez approached Deno and Cardoso, robbing them both at gunpoint. Hill stood five to ten feet away laughing.

After the robbery, Hernandez and Hill got back in the vehicle with Hernandez driving and Hill in the passenger seat. The men drove to Simon Phanthai's house, where Hernandez changed into a black sweatshirt. Next, the group, including Hernandez, Hill, Doby, Brown, and Phanthai met at Brown's house. There, Hernandez went through the stolen purses and retrieved $80 in cash and one of the victim's debit cards. Hernandez told Hill to take the debit card to an automated teller machine to withdraw money; Hill was ultimately unsuccessful after trying to withdraw money at two banks.

At around 11:45 P.M., Hernandez's two co-defendants at trial, Jamal and Karon McDougal, arrived at Brown's house. Either Jamal or Karon asked Hernandez if he wanted to be involved in a robbery. Hernandez agreed to join them and bring his gun. Silva drove his 1995 Toyota Camry to Brown's house and agreed to be the driver for the robbery. Hernandez, Jamal, and Karon changed into different clothes provided by Brown, and then left Brown's house together with Silva. Jamal instructed Silva where to drive; when they arrived, Silva remained in the vehicle while the other three walked toward the residence through a garage.

The two murder victims, Luis Antonio Martinez Delgado ("Tony") and Hector Delgado—who sold marijuana from their house—were present at the residence. Brian Staples was also present at the time of the murder; as was the Delgados' nephew, Kyle Delgado. At around 1:00 A.M. there was a loud bang on their door and Tony answered. Staples came down and saw two males, both with guns drawn, one with a goatee and a hood covering his face. Staples ran upstairs to his bedroom to call 911. Kyle Delgado and Staples both heard gunshots while hiding. When they emerged, they found Hector lying on his back in his bedroom with a bullet hole in his stomach, and Tony was on the stairs with a bullet hole in his back. Both died of their wounds.

Karon returned to the Camry three to four minutes after initially exiting the vehicle; Jamal and Hernandez returned five minutes after Karon. Jamal told Hernandez that he was a great shot, and Hernandez responded, "I know, once I seen them jump on you, I started shooting." Back at Brown's house, Hernandez and Jamal conversed further about the events. Hernandez, Hill, and Doby left Brown's apartment together in the Honda belonging to Hernandez's sister. Hill placed the gun in the trunk of the vehicle. Hernandez dropped Doby off and was headed to Hill's house when Hernandez and Hill were stopped by police and arrested.

B. Procedural Posture

In December of 2009, Hernandez was charged with armed robbery (two counts), murder in the first degree on the theory of felony-murder (two counts), home invasion, unlawful possession of ammunition, and possessing a firearm without a license. Hernandez filed a motion to suppress the firearm evidence, which consisted of a gun found in the trunk of the car that he was driving. Hernandez argued that the police lacked probable cause for the warrantless search and that the search exceeded the proper bounds of permissible inquiry. After an evidentiary hearing, in which one witness (Officer Christian Hanson of the Lowell Police Department) testified, the motion to suppress was denied by the Massachusetts Superior Court.

Additionally, Hernandez filed a motion to sever his trial on the charges of armed robbery of Deno and Cardoso from the charges regarding the murders of Hector and Tony Delgado and armed home invasion; Hernandez also requested to sever his trial from that of Tim Brown. In a second severance motion, Hernandez asked to sever his trial regarding the murders from that of co-defendants Jamal and Karon. With respect to the first motion, the court granted severance of the trials of Hernandez and Brown, but the request to sever the trial of the charges was denied. Hernandez's second severance motion regarding the joint trial with Jamal and Karon was also denied.

Hernandez was tried in the Middlesex Superior Court and was found guilty of all charges. His co-defendants were acquitted of all charges. On appeal to the SJC, Hernandez argued (1) the trial court erred in denying his motion to suppress the firearm evidence (2) the trial court erred in denying severance of his trial from that of his co-defendants and (3) the trial court erred in denying severance of the various charges against him. Hernandez , 42 N.E.3d at 1067. The SJC upheld the trial court's determinations. See Hernandez , 42 N.E.3d at 1078.

Hernandez thereupon filed a petition for writ of habeas corpus in this court, seeking review of the issues upon which he had unsuccessfully pursued before the SJC.

II. ANALYSIS

A. Wrong Respondent

Hernandez named the Commonwealth of Massachusetts as the Respondent in this proceeding rather than Joseph Murphy, the Superintendent of Old Colony Prison, where Hernandez is being held. Congress has required that a writ of habeas corpus granted by a district court "shall be directed to the person having custody of the person detained." 28 U.S.C. § 2243. A prisoner's proper custodian for purposes of habeas review is the warden of the facility where he is being held. Vasquez v. Reno , 233 F.3d 688, 691 (1st Cir. 2000).

Jurisdiction over the custodian is necessary because "[t]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody." Id. at 690 (quoting Braden v. 30th Judicial Circuit Court , 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) ). The First Circuit, in Vasquez , held that the district court should avoid addressing the merits when the petitioner does not direct his habeas petition to the person having custody of the person detained. Id. at 697 ; see also Gonzalez v. Grondolsky , 152 F.Supp.3d 39, 44 (D. Mass. 2016) (action moot when the named respondent on a writ of habeas corpus was the warden of the prison where the petitioner was held prior to being transferred to another facility). Such avoidance, however, seems improvident here. The warden of the Massachusetts prison facility holding Hernandez, unlike the proper respondent in Vasquez , is within the jurisdiction of this court, the nominal respondent would be represented by the Massachusetts Attorney General's Office which argues the merits in the instant motion to dismiss, and the petition may easily be amended to remedy the error in identifying the nominal respondent. Moreover, as will appear, addressing the merits now will be dispositive favorably to the respondent and will avoid further and unnecessary consumption of judicial resources. I turn therefore to the merits.

B. Fourth Amendment Claim

Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner generally may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial. Stone v. Powell , 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The First Circuit has interpreted Stone as standing "for the proposition that a federal habeas court ordinarily cannot revisit a state court's disposition of a prisoner's Fourth Amendment claims." Sanna v. Dipaolo , 265 F.3d 1, 8 (1st Cir. 2001). The First Circuit, however, has also emphasized that "this proposition is not absolute: there is an exception for instances in which a habeas petitioner had no realistic opportunity to litigate his Fourth Amendment claim fully and fairly in the state system." Id.

Even if I were to disagree with the outcome reached by the state court on the Fourth Amendment claim here, I have no authority to grant the writ without making the threshold inquiry to determine whether the state prisoner was given the opportunity for full and fair litigation of his Fourth Amendment Claim. Pignone v. Sands , 589 F.2d 76, 80 (1st Cir. 1978) (...