Lees v. Alves

695 F.Supp.3d 139

Brian LEES a/k/a Brian Lee, Petitioner, v. Nelson ALVES, Respondent.

CIVIL ACTION No. 22-11379-WGY

United States District Court, D. Massachusetts

Signed September 27, 2023

Brian Lee, Norfolk, MA, Pro Se. Tara Lyn Johnston, Massachusetts Attorney General's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

YOUNG, JUDGE of the UNITED STATES¹

I. INTRODUCTION

For the reasons stated below, petitioner Brian Lees a/k/a Brian Lee ("Lees")² 28 U.S.C. § 2254 petition for a writ of habeas corpus is DENIED and this action is DISMISSED with prejudice. All pending motions are DENIED. Pursuant to 28 U.S.C. § 2253(c)(2) and Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District courts, a certificate of appealability is DENIED because Lees has not made a substantial showing of the denial of a constitutional right. The Clerk is directed to enter a separate order of dismissal.

While under certain circumstances inaccuracies in a transcript that adversely affect the outcome of a criminal action may violate a criminal defendant's constitutional rights, there is no constitutional right to cling to an inaccurate transcript in a jury voir dire. Lees, through his pro se petition, attempts to capitalize on what the Massachusetts Supreme Judicial Court determined was a mere typographical error in a transcript. The error was caught only when the SJC was able to obtain, sua sponte, but with notice to the parties, audio recordings of the jury voir dire proceedings from the trial court post-oral argument of Lees' plenary direct appeal of his first-degree murder conviction for patricide.

Lees was represented by counsel in his direct appeal. Post-decision, but before firing his lawyer, Lees moved pro se for rehearing on the issue of the newly discovered audiotapes, which was denied. Lees' counsel, after listening to the audiotapes apparently agreed with the SJC's correction, and in the context of a motion for withdrawal indicated to the SJC that there was no reasonable basis for further proceedings.

Lees fired his lawyer and, proceeding pro se, after unsuccessfully attempting to move for a new trial and denial of a gateway motion to appeal the denial of that motion, now petitions this Court for a writ of habeas corpus claiming that his constitutional rights were violated based upon the original, incorrect transcript, and the corrected transcript. Alternatively, he claims that his Fourteenth Amendment procedural due process rights were violated by the Supreme Judicial Court's procedure of sua sponte correction of the record.

After careful review of the parties' filings, relief must be denied because Lees has not met his high burden of proving that the state court's decisions as to all grounds were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or were "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).

II. FACTS

A. Lees' Trial and Conviction for Murder in the First Degree with Extreme Atrocity or Cruelty of his Father

1. Lees' Indictment for Murder in the First Degree

On January 23, 200, Lees was indicted for Murder in the First Degree pursuant to Mass. Gen. Laws ch. 265, § 1, for beating his father to death. Indictment, ECF No. 23-2 93. The facts of Lees' underlying state criminal action are taken from the Supreme Judicial Court's 2018 opinion:

The victim was the defendant's father. Ruth Collins and her daughter, Caron Collins, had known the defendant for several years at the time of the homicide . . . The defendant was friendly with Caron and had done housework for Ruth. On October 28, 2006, Ruth saw the defendant walk behind her house carrying white garbage bags. Soon after, the defendant left without any garbage bags. Ruth and Caron checked the backyard for the garbage bags. They found white garbage bags in a compost bin, and inside one of the garbage bags, they found a human head. When police arrived, officers found two arms and two legs in the other garbage bags.

Ruth reported that she had seen the defendant carrying white garbage bags behind her house. Police officers learned that the defendant's father had sought an abuse prevention order against him three days earlier . . . Officers went to the defendant's father's house to check on his safety. In the house, officers found white garbage bags and a human torso in a plastic tub. A fingerprint on the tub was later identified as the defendant's.

That same day, the defendant spoke with the police. He told detectives that he had dismembered his father but not killed him. The defendant also told police that he had thrown away his father's mattress, sheets, and blanket because they were covered in blood. The medical examiner testified that multiple blows to the head caused the victim's death. The defendant's medical expert testified that the victim's death was a homicide.

At trial, the defendant represented himself . . . and conferred with standby counsel. His theory of his defense was that the Commonwealth did not meet its burden of proof, the police and medical examiner altered evidence, and the victim was not the defendant's father.

Commonwealth v. Lee, 479 Mass. 558 -559, 96 N.E.3d 706 (2018).³

2. Lees Represented Himself at Trial with Standby Counsel

Lees had multiple appointed criminal counsel. The trial court found Lees' attempt to fire his third lawyer as a delay tactic:

THE COURT: The reason you're not on trial is because you keep on trying to fire your lawyers.

THE DEFENDANT: Well, they're preventing me from asserting my rights.

THE COURT: Well, we're not going to argue, Mr. Lee. Your motion for a speedy trial carries no weight with me given your dilatory tactics. Go on.

. . . .

THE COURT: The defendant's motion to discharge Ms. Regan is denied. Ms. Regan's motion to withdraw is also denied.

I find the defendant has not proffered good cause for discharge. I find has engaged in dilatory tactics, as well. What I will tell you, Mr. Lee, is the following. This case raises the issue of the potential waiver of counsel by conduct. You need to be explicitly warned of the following, and I will give you this express warning, Mr. Lee. If you engage in any abusive conduct towards your attorney, you will lose your constitutional right to an appointed attorney, and you will be forced to represent yourself. As I told you last time in Court or a prior time, when I appointed Ms. Regan, she's your last lawyer. Your motion to discharge her has not been made in good faith, so therefore discharge is not granted.

Oct. 5, 2009 Hearing Tr. 20-23, ECF No. 15-20 (emphasis added).

On November 12, 2009, after hearing and careful consideration by the trial court -- and upon Lees' insistence -- Lees was ultimately permitted to represent himself, with his third attorney as stand-by counsel.⁴

3. Jury Voir Dire and Colloquy with Juror No. 226

On November 17, 2009, trial commenced with jury selection. The Court held a comprehensive voir dire of the putative jurors, including a questionnaire. Nov. 17, 2009 Tr. 87-96, ECF No. 15-8 88-96.

The Court explained the jury selection process and that after individual questioning of the juror, the exercise of preemptory challenges "on the spot." Tr. ECF No. 15-8 74.⁵

The trial court undertook voir dire questions in open court, followed by individual voir dire. With respect to Juror No. 226 the following was originally -- but the highlighted portion erroneously -- transcribed:

THE JUROR: Hi.

THE COURT: You didn't raise your hand at all, so please be seated, I have some private questions for you.

THE JUROR: Sure.

THE COURT: Have you fully and fairly filled out this part of the questionnaire about your experiences with the law? It asks about whether you've been a juror before, civil cases, arrests, convictions that sort of thing.

THE JUROR: Yes.

THE COURT: Okay. Have you close family member or close and dear friend been a victim of domestic violence or been accused of domestic violence?

THE JUROR: No, sir.

THE COURT: All right. In this trial you will see some graphic photos of body parts, and the question is whether you think that would affect your ability to be a fair and impartial juror?

THE JUROR: Yes.

THE COURT: All right, do you have any other concerns about being a fair and impartial juror for a first degree murder prosecution?

THE JUROR: No, sir.

THE COURT: Okay. Can you help us as a juror, can you sit for the days this trial goes on and give us a verdict?

THE JUROR: I believe so.

THE COURT: Thank you. Please step back I'll give you an answer in just a moment.

MS. BROADBENT: The Commonwealth is content.

MR. LEES: I am content with this juror.

THE COURT: You are content?

MR. LEES[ ]:Yes.

THE COURT: All right, he will become Seat Number 2. You're fully qualified for Seat 2 and you'll be upstairs with the other juror who has been picked so far.

THE JUROR: Okay.

THE COURT: You'll be on this trial.

Nov. 17, 2009 Trial Tr. 106-107, ECF No. 15-8 106-107 (emphasis added).

After a few more jurors, Lees stepped away to confer with his standby counsel, and when he returned sought to belatedly challenge Juror No. 226, who was at that point seated as Juror No. 2:

MR. LEES[ ]: Your Honor, I didn't understand [Seat Number] 2 juror then and I would like to challenge Juror [Seat] Number 2 if that's possible if you'd let me do this one time.

THE COURT: No. I decline to do that.

[MR. LEES:] It was a misunderstanding.⁶

THE COURT: I understand. Your rights are saved on it but you indicated you were content and the record so reflects. I'm not going to go backwards.

Id. Jury selection continued, and a jury was empaneled.

4. Lees is Convicted by Jury of Murder in the First Degree with Extreme Atrocity and Cruelty

On December 9, 2009, after representing himself at trial, Lees was convicted by a jury as to "Guilty of Murder in the First Degree Based the theory of: Extreme Atrocity or Cruelty." Verdict,...