Mendez v. Goguen

CHARLES MENDEZ, Petitioner, v. COLLETTE GOGUEN, Respondent.

CIVIL ACTION No. 17-40076-TSH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 14, 2020

REPORT AND RECOMMENDATION

Proceeding pro se, Petitioner Charles Mendez ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction. (Docket #1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and an Order referring the petition to me, (Docket #21), I recommend that Petitioner's petition be denied and dismissed.

I. FACTUAL BACKGROUND

The facts underlying Petitioner's conviction, summarized below, are set out in the opinion of the Supreme Judicial Court of Massachusetts. Commonwealth v. Mendez, 476 Mass. 512 (2017).

A. The Armed Robbery of Ryan Moitoso

On the evening of November 18, 2010, Petitioner and Tacuma Massie (Petitioner's co-defendant) ambushed and robbed Ryan Moitoso. Id. at 513. Moitoso believed he was going to meet Petitioner's girlfriend in a parking lot to sell her marijuana. Id. Petitioner's girlfriend drove Petitioner and Massie with her to the parking lot, dropping them off near where she and Moitoso planned to meet. Id. at 513-14. While Petitioner's girlfriend and Moitoso spoke, Petitioner and Massie approached Moitoso from behind and one of them hit Moitoso's head with a hard metal object. Id. at 514. They told Moitoso to empty his pockets, and he turned over his cash and marijuana. Id. Moitoso heard a clicking noise that sounded like a gun being cocked, and then he was allowed to return to his vehicle. Id. Petitioner's girlfriend then drove Petitioner and Massie away. Id.

B. The Murder of Edward Platts

After the encounter with Moitoso, Petitioner's girlfriend dropped Petitioner and Massie off near a housing complex where Massie had arranged to meet Edward Platts, purportedly to buy marijuana. Id. In reality, Petitioner and Massie intended to rob Platts of $4,000 that Massie knew Platts to be carrying. Id. Prior to Petitioner's encounter with Platts, a witness sitting in a vehicle parked in the housing complex observed two men fitting the description of the Petitioner and Massie walk past him. Id. Platts, who had a puppy with him, parked his vehicle behind the witness's vehicle. Id. The witness observed the same two men walk towards the back of his vehicle. Id. Within seconds, the witness heard a gunshot and an engine accelerate, and felt Platts' vehicle hit the back of his vehicle. Id. The witness then called 911 and told the dispatcher that a man had been shot, and that those involved fled the scene. Id. at 515. Within the housing complex, at the sound of the gun shot a resident looked out her window and saw a person matching Petitioner's description get out of the passenger side of Platts' vehicle and quickly exit the scene, clutching something to his chest. Id. at 514. Platts was shot at close range behind his right ear as he sat in the vehicle. Id. When Petitioner and Massie were arrested, both were carrying handguns (Massie's was loaded), Massie had more than $4,000 in cash, Petitioner's clothes were stained with the victim's blood, and the police found Platts' puppy in Petitioner's girlfriend's vehicle. Id. at 514. The police also found Petitioner's hat in Platt's vehicle. Id.

C. The Facts Relating to the Motion to Suppress

After the witness's 911 call, a State police trooper with the violent fugitive apprehension section heard the police transmission of the report. Id. at 515. He was travelling nearby in an unmarked police car and plain clothes and headed to the housing complex. Id. Approximately two blocks from the complex, he saw a person moving quickly towards a parked vehicle. Id. The trooper ran the license plate number and learned that the car was registered to a woman with no criminal history. Id. The trooper then arrived at the housing complex and began to patrol, looking for suspicious activity. Id. As he patrolled, he saw Petitioner make a "beeline" to a white Honda Civic automobile that was stopped at the curb with the engine running. Id. The trooper then saw Petitioner enter the rear passenger side of the car, and noted that the car began to drive away even before Petitioner had fully entered or closed the car door. Id. at 515-16. Because the trooper believed there to be a very unusual absence of any other people or a lack of activity on the streets or sidewalks in the housing complex, and because of the vehicle's quick departure, the trooper followed the car. Id. at 516. The car drove a "serpentine route," meandering through the city streets. Id. While following the car, the trooper reported its license plate number and learned that the individual associated with the address of the vehicle's owner had "lots of violence" in his record including a firearms charge, and pending drug charges. Id.

The trooper then saw that there were two people seated in the back and he called for backup. Id. Approximately four miles away from the housing complex, the driver of the vehicle stopped in front of a three-family home but kept the motor running. Id. The trooper stopped his vehicle in the middle of the street and waited for back up. Id. Between fifteen and thirty seconds later, the Petitioner and Massie got out of the vehicle and turned to face the trooper. Id. They were speaking to each other and both had their hands in their jacket pockets. Id. Fearing for his safety, the troopergot out of his vehicle, showed his badge, and said "Police, don't move." Id. The two men fled in opposite directions. Id. Petitioner initially ran towards the trooper, but soon returned to the white vehicle, getting in and telling the driver to "take off." Id. The trooper drew his weapon and ordered the driver, Petitioner's girlfriend, to shut off the motor, which she did. Id. at 516-17. When another officer arrived, the police recovered a handgun tucked in the Petitioner's waistband. Id. at 517. At the same time, a third officer saw Massie, who was less than a block away from the white vehicle, running with his hand in his pocket. Id. The officer chased him and ordered him to stop. Id. Massie did not comply, but he was apprehended carrying a loaded semiautomatic pistol and cash. Id.

II. PROCEDURAL HISTORY

On January 7, 2011, a grand jury returned four indictments against petitioner for his encounter with Platts: (1) first degree murder¹ (2) armed assault with intent to kill; (3) assault and battery by means of a dangerous weapon; and (4) unlawful possession of a firearm. (A. 1-2, 4).² On February 11, 2011, a grand jury returned two indictments against Petitioner for armed robbery and assault with a dangerous weapon for his encounter with Moitoso. (A. 137, 139).

On March 8, 2012, Petitioner moved to suppress the firearm, cash, and ammunition seized during the trooper's warrantless stop. (A. 5, 333). The motion judge issued her findings of fact, rulings of law, and order denying Petitioner's motion on December 4, 2012. Commonwealth v. Mendez, Nos. 2011-0018, 2011-0019, 2012 WL 12950441 (Mass. Super. Dec. 4, 2012). OnJanuary 11, 2013, the same motion judge issued an order allowing joinder of the Moitoso and Platts cases for trial. (A. 111-23).

On September 27, 2013, a jury found Petitioner guilty of four offenses: (1) first degree murder (2) armed assault with intent to kill; (3) assault and battery by means of a dangerous weapon; and (4) unlawful possession of a firearm. (A. 8). He was sentenced to life in prison without the possibility of parole on the murder conviction, with concurrent prison sentences on the remaining convictions. (A. 8-9). That same day, Petitioner filed a notice of appeal. (A. 9). In his appeal, the defendant raised three issues: (1) that the judge erred in denying the motion to suppress; (2) that the trial judge abused her discretion and denied his right to a fair trial by granting the Commonwealth's motion to join the Moitoso and Platts offenses for trial; and (3) that the prosecutor's closing argument constituted reversible error where the prosecutor said that the Petitioner tailored his testimony to conform to the evidence he heard during trial, thereby impermissibly burdening the Petitioner's right to be present for the Commonwealth's case and to confront the witnesses against him. (A. 26). In addition, Petitioner filed a Moffett brief pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), in which he asserted (1) a key witness against Petitioner in the Moitoso case was unreliable; (2) counsel was ineffective because he was not prepared to present a legal argument on the motion for joinder; (3) the Commonwealth improperly "staged a car at the view" without giving the defense counsel an opportunity to review it; and (4) the trial judge improperly refused to remove a juror who said she had formed an opinion before deliberations began.³ (A. 81-85). The SJC affirmed the petitioner's convictions on February 22, 2017. Mendez, 476 Mass. at 513.

III. PETITIONER'S HABEAS PETITION AND STANDARD OF REVIEW

Petitioner filed the instant habeas petition on May 18, 2017, asserting four grounds for relief: (1) that the judge erred in denying the motion to suppress the evidence seized as a result of the warrantless stop; (2) that the trial judge abused her discretion and denied his right to a fair trial by granting the Commonwealth's motion to join the Moitoso and Platts offenses for trial; (3) that the prosecutor's closing argument constituted reversible error where the prosecutor said that the Petitioner tailored his testimony to conform to the evidence he heard during trial, thereby impermissibly burdening the Petitioner's right to be present for the Commonwealth's case and to confront the witnesses against him; and (4) arguments under Commonwealth v. Moffett, in which he asserted: (i) a key witness against Petitioner in the Moitoso case was unreliable; (ii) counsel was ineffective because he was not prepared to present a legal argument on the motion for joinder; (iii) the...