Lattimore v. Dubois

152 F.Supp.2d 67

James LATTIMORE, Petitioner, v. Larry E. DuBOIS, Respondent.

No. Civ.A. 97-11011-NG.

United States District Court, D. Massachusetts.

July 13, 2001.

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James Lattimore, Norfolk, MA, Pro se.

Martin Richey, Federal Defender Office, Boston, MA, for Petitioner.

Cathryn A. Neaves, Attorney General's Office, Pamela L. Hunt, Attorney General's Office, Criminal Bureau, David E. Edmonds, Assistant Attorney General, Boston, MA, Susanne G. Levsen, Assistant Attorney General, Criminal Bureau, Linda Wagner, Assistant Attorney General, Criminal Bureau, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

GERTNER, District Judge.

TABLE OF CONTENTS
  I. INTRODUCTION .......................................................................71
 II. FACTS ..............................................................................73
     A. Trial Summary ...................................................................73
     B. Procedural History ..............................................................74
        1. The Trial ....................................................................74
        2. Post Conviction ..............................................................75
III. ANALYSIS ...........................................................................77
     A. Introduction ....................................................................77
     B. Were Lattimore's Claims Procedurally Barred? ....................................77
        1. Was the manslaughter instruction claim procedurally defaulted under
            state law? ..................................................................77
        2. Was the procedural default the basis for the state court's denial of
            relief? .....................................................................78
        3. Was there a cognizable excuse for the default and did the failure to
            consider the claim prejudice the defendant ("cause and prejudice")?..........80
           a. Cause ............................................................80
           b. Prejudice ........................................................83
     C. Appellate Counsel's Failure to Raise the Trial Court's Refusal to Instruct
         on Manslaughter on Direct Appeal Denied Petitioner the Effective
         Assistance of Counsel (Claim Two) ..............................................84
        1. Applicable Law ...............................................................84
        2. Deficient Performance ........................................................85
        3. Prejudice ....................................................................85

     D. That the Trial Court's Failure to Instruct the Jury on Voluntary Manslaughter
         Created a Miscarriage of Justice (Claim One) ...................................89
 IV. CONCLUSION .........................................................................91

I. INTRODUCTION

Petitioner James Lattimore ("Lattimore") brings this action for a writ of habeas corpus challenging his state conviction under 28 U.S.C. § 2254. Lattimore was convicted of first degree murder for the killing of Robert Phillips ("Phillips") on October 3, 1981, as well as for armed assault with intent to commit murder, and assault and battery by means of a dangerous weapon.

Before considering the merits of a habeas petition, I am obliged to parse the claim with care, evaluating if the petitioner has complied with the myriad technicalities of habeas law. But that approach—important though it may be—sometimes runs the risk of obscuring the issues, making it hard to see the forest for the trees. Therefore, before proceeding with an in-depth analysis of the case, I outline his claims and my concerns in broad strokes.

The record is clear about this much: Lattimore's actions on the evening of October 3, 1981, the date of the killing, reflect a misguided effort to protect his girlfriend, Linda Smith ("Linda"), from her ex-husband, Glen Smith ("Smith"). Phillips was an unintended victim of the shooting. Linda Smith had been the object of a sustained campaign of domestic violence, at a time before such issues captured significant public attention. When Smith threatened Linda in the presence of her friends and neighbors, a melee ensued, with others —not just Lattimore—embroiled. Lattimore had a gun and shot wildly, wounding Smith and killing Phillips.

At the close of the evidence, Lattimore's counsel requested a manslaughter instruction. The facts, he claimed, supported the inference that the killing was committed "in a sudden transport of passion or heat of blood." The trial judge not only refused to give the instruction; he warned the jury that this was not a manslaughter case. There were, he said, no "extenuating circumstances." Trial counsel strenuously objected. Lattimore was convicted of first degree murder. He has served twenty years of that sentence.

The core problem is that while trial counsel preserved the manslaughter instruction issue, appellate counsel did not.

The Supreme Judicial Court of Massachusetts ("SJC") affirmed the convictions, but exercised its authority pursuant to M.G.L. c. 278 § 33E to reduce the verdict to second degree murder. See Commonwealth v. Lattimore, 396 Mass. 446, 486 N.E.2d 723 (1985). The court's characterization resonates "extenuating circumstances": Smith, the SJC found, had "assaulted his former wife," "terrorized and harassed the neighbors," and "instigated" a neighborhood brawl in which Lattimore joined, firing his gun wildly. Id. at 453, 486 N.E.2d 723.

The SJC, however, went no further. The only issues that appellate counsel had raised before the court were plainly without merit. And the one compelling issue— the trial court's failure to instruct on manslaughter —was never mentioned.

Thereafter, when Lattimore tried to raise the manslaughter instruction claim, he found himself in the "Alice in Wonderland" world of post-conviction practice.¹ After a conviction is affirmed on direct appeal, the path to relief is uphill.² The law is concerned about the finality of decisions. There is no entitlement to counsel; the burden of proof is against the petitioner. A court that has affirmed a conviction once is likely to look askance at subsequent challenges.

But Lattimore persisted. He moved for a new trial on the manslaughter issue, asked to have counsel appointed, and to amend his motion if necessary after counsel reviewed it. What he did not do, however, was challenge the failure of appellate counsel to raise the instruction issue on direct appeal.³ The trial court denied the motion, without appointing counsel, without calling for responsive pleadings (which would have alerted Lattimore to the significance of the procedural default), without holding a hearing, and without making findings.

On appeal again, now from the trial judge's denial of the motion for a new trial, Lattimore renewed his request for counsel. After some additional procedural turns, the Appeals Court agreed. But new appellate counsel pressed only the claims which had been raised below—again, the instruction issue, not the ineffectiveness of prior appellate counsel. And again, Lattimore lost. The instruction question had not been presented on direct appeal, and the reason for that failure—appellate counsel's ineffective assistance—was not before the court on the appeal of the denial of the motion for a new trial.

By the time of his second motion for a new trial, Lattimore, again pro se, finally got it right, challenging the quality of appellate counsel's representation in his direct appeal. But it was too late. The trial court would not listen because Lattimore had not raised the claim earlier.

In short, underneath the layers and layers of proceedings, lies a substantial issue, vigorously preserved by trial counsel, fairly raised by the evidence, central to the defense—which, because it was missed by appellate counsel in the first instance, was never carefully addressed by any court thereafter.

Lattimore makes the following arguments before this Court: 1) The trial judge failed to instruct the jury on voluntary manslaughter, a failure which amounted to a miscarriage of justice. But before a court can consider that issue, it must address the fact that the claim was procedurally defaulted; Lattimore never raised it on direct appeal. 2) Lattimore justifies his failure to raise the instruction issue on direct appeal because of appellate counsel, who fundamentally dropped the ball. 3) And these same deficiencies provide a second, independent ground for relief —ineffectiveness of appellate counsel. But before a court can consider the ineffectiveness of appellate counsel, it must address the fact that this claim was also defaulted; Lattimore did not raise it the first time he could have, on his motion for a new trial.

I conclude that Lattimore's appellate counsel did not provide effective assistance of counsel; his failure to raise a compelling and important issue on appeal—the manslaughter instruction question—is simply incomprehensible. And I find that Lattimore's failure to raise an ineffective assistance of counsel issue in a timely fashion is excused because of the very unusual facts of this case: The trial judge, on notice that the SJC's view of the case contradicted his own, that the SJC's decision strongly suggested manslaughter when the trial judge had told the jury that there were no "extenuating circumstances," nevertheless failed to appoint counsel, hold a hearing, ask for responsive pleadings, or make findings. Lattimore, pro se, pressed the manslaughter claim, but plainly did not understand that he also had to explain why it had not been raised on direct appeal. He was not familiar with the habeas corpus maze. Nothing about the post-conviction proceedings in the trial court helped him understand what his rights were....