Mitchell v. Silva

MARKEESE MITCHELL, Petitioner, v. STEVEN SILVA, Respondent.

Civil Action No. 17-11792-RGS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

December 17, 2019

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

Boal, M.J.

On September 19, 2017, Markeese Mitchell, who is currently serving a life sentence at the Souza-Baranowski Correctional Center, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Docket No. 1 (the "Petition").¹ The Petition alleges that (1) Mitchell's Confrontation Clause rights were violated by the admission of a redacted version of a codefendant's incriminating statement at their joint trial and (2) Mitchell's Fifth and Fourteenth Amendment rights were violated when he gave an involuntary statement to police without Miranda warnings while in custody. Docket No. 27. For the reasons set forth below, this Court recommends that the District Judge deny the Petition.²

I. PROCEDURAL HISTORY

On May 24, 2010, a Suffolk County jury, after a joint trial, convicted Mitchell and three codefendants of second-degree murder. Supplemental Answer ("S.A.") 8. The trial judge sentenced Mitchell to life in prison. Id.

Mitchell filed a timely notice of appeal on May 25, 2010, S.A. 8, 121, and on January 28, 2016, the Massachusetts Appeals Court ("MAC") affirmed his conviction. S.A. 18; Commonwealth v. Mitchell, 89 Mass. App. Ct. 13 (2016). On February 18, 2016, Mitchell filed an application for further appellate review with the Massachusetts Supreme Judicial Court, S.A. 378-403, which it denied on April 28, 2016. S.A. 18. He then filed a petition for a writ of certiorari with the U.S. Supreme Court, which was denied on October 3, 2016. Mitchell v. Massachusetts, 137 S. Ct. 232 (2016).

Mitchell filed the Petition on September 19, 2017. Docket No. 1. On December 12, 2018, Mitchell filed a motion seeking a stay of the Petition to permit him to exhaust a claim in the state courts. Docket No. 29. This Court recommended that the District Judge deny that motion on June 12, 2019, and, on July 2, 2019, the District Judge adopted that report and recommendation without objection. Docket Nos. 39, 40.

II. FACTS³

The MAC found the following facts:

On May 22, 2007, sixteen year old Terrance Jacobs was beaten and stabbed to death in the Mattapan section of Boston. Four months earlier, Jacobs had been charged with slashing the face of one Jaleek Leary outside a local skating rink called "Chez Vous." Leary was fourteen years old and the defendants were among his friends and relatives.

On the afternoon of May 22, 2007, Pabon, Mitchell, and Ortiz were in the area of 10 Wilcock Street in Mattapan, drinking and smoking. A number of other individuals were present, including the codefendant [Paul] Goode and one Dedrick Cole, who testified at the trial. At 7:00 P.M., Richard Allen and Orlando Waters arrived and approached the group. Waters indicated that he was part of a local gang ("M.O.B."). Ortiz responded that someone from M.O.B. had slashed the face of his cousin, Jaleek Leary. Ortiz sought "a fair one"—i.e., a one-on-one fistfight without weapons—in response to that attack. Waters said that he was amenable; he returned to his vehicle and drove away. Allen remained on the scene. Ortiz then informed Cole that either Pabon or Emmanuel DeJesus ("Pudge") would fight the "kid" (i.e., Jacobs) who had cut Leary.

Approximately thirty minutes later, at about 7:30 P.M., and while it was still daylight, Waters returned to Wilcock Street, accompanied by two males. Cole recognized one of the two males as a "guy I knew as Justice." After exchanging brief words with Allen, Waters left the scene, only to return with a larger group; among them was the victim, a boy whom Cole had known as "Terra."

When the two groups faced off, Ortiz asked Waters if the fight was "on." Ortiz pointed to Pudge as the fighter for the Wilcock Street group. Pudge was just under six feet tall and muscular, weighing about 210 pounds. The victim voiced some qualms about fighting Pudge. The victim was slightly built, no more than 150 pounds, and at least four inches shorter than his opponent. While the victim continued to express his misgivings about having to fight, Waters forcibly pushed him toward Pudge, sparking a brawl among all present. Ortiz, Pabon, and Mitchell struck the victim in the face with their fists. Waters and two associates initially joined the scrum but then backed off, but not before one man took out a handgun and fired three or four shots toward the crowd, prompting those assembled to flee.

The victim managed to gather himself and then ran on foot into oncoming traffic on Blue Hill Avenue. Pabon chased after him and stabbed him in the back more than once, using a knife. Mitchell, Ortiz, and Goode followed in pursuit. They all turned onto Havelock Street,⁴ where the chase was recorded by two surveillance cameras mounted on an establishment known as Kay's Oasis, at the corner of Havelock Street and Blue Hill Avenue. All of the defendants were identified in the surveillance footage, which showed them running (or, in Mitchell's case, riding a bicycle) to and from the area where the victim was found lying facedown, bleeding profusely.⁵ There was testimony that Mitchell stabbed the victim and then walked away "wiping the blood on a pole." Another witness testified that Mitchell, Ortiz, and Pabon all stabbed the victim. Still another witness testified that "[t]he person that was on the bike was ramming their bike into the person on the ground," while another person was "making a jabbing motion with [his] right hand . . . [a]nd also kicking" the victim, in the "abdomen area . . ., chest, back, stomach area."

At about 8:00 P.M., a Boston police detective came to the scene in an unmarked vehicle; he had been alerted about the street brawl by a concerned citizen. Within a minute or two, Boston emergency medical technicians arrived, attended to the victim, and transported him to a local hospital, where he was pronounced dead. The murder weapons were not recovered.

Mitchell, 89 Mass. App. Ct. at 15-16. The MAC also recounted⁶ the following facts related to an interview that Mitchell gave at his grandfather's home approximately one month after the incident:

On June 27, 2007, Mitchell's grandfather, Timothy Johnson, returned a telephone call from a Boston police detective and agreed that the police would interview Mitchell at Johnson's home in Brockton. That same day, at about 9:05 p.m., Detectives Paul McLaughlin and Michael Devane arrived at Johnson's home in plain clothes and met with Johnson, Mitchell, and Mitchell's father, Humberto Hernandez. Mitchell was sixteen years old. The detectives told the three that, if they felt uncomfortable at all, they could end the conversation at any time and the detectives would leave. Johnson asked the detectives to sit at a kitchen table for the interview. When Mitchell joined them, the detectives told him that they were from the Boston Police Homicide Unit and assigned to the investigation of the victim's murder. Mitchell, Johnson, and Hernandez agreed to go forward with the interview.

Mitchell denied any knowledge of the incident and stated that he did not recall seeing anyone get stabbed. McLaughlin then asked to speak with Johnson and Hernandez separately, in an adjacent room, and he showed the two men photographs of Mitchell on a bicycle and on foot at the crime scene. McLaughlin indicated that Mitchell was not telling the truth about the incident. In the interim, nothing of substance was said between Devane and Mitchell at the kitchen table.

The detectives then asked if they could make a sound recording of the remainder of the interview. Johnson, Hernandez, and Mitchell all declined.

The detectives informed Mitchell that they knew he was at least a witness to the stabbing, and they showed him a surveillance photograph depicting a young man in a red shirt on a bicycle; Mitchell admitted that he was the boy on the bicycle. Presented with a second photograph, Mitchell admitted that he was the boy in the image depicted running next to another male on a bicycle. Those photographs were taken just minutes before the victim was stabbed while he was lying close by on the sidewalk. Mitchell also confirmed that he was the boy in a red shirt seen running in two other photos. Mitchell said he could not identify anyone else in those photographs.

When the detectives showed Mitchell other surveillance photographs, he identified a "black/Hispanic" male in a green tank top as "Terrance," and said he did not know Terrance's last name. In another photo, Mitchell identified a similar male in a striped shirt as Terrance. The detectives determined that this male was Terrance Pabon.

In response to McLaughlin's observation that the surveillance video showed Mitchell running directly to the spot where the stabbing took place, Mitchell stated, "I just remember kids running." He added, "I kept running" and "I didn't see anything." Mitchell stated that he ran through a nearby yard to reach Wilcock Street. He denied taking a knife from one of the attackers and wiping the blade on an object. The detectives told Mitchell and his father and grandfather that Mitchell was not being honest about the incident and that they might need to talk with him again. The interview ended and the detectives left the home at 10:25 p.m.; Mitchell was not arrested until March, 2008.

Mitchell, 89 Mass. App. Ct. at 17-18.

III. HABEAS CORPUS STANDARD OF REVIEW

The AEDPA presents a "formidable barrier" limiting the availability of habeas relief where state courts have adjudicated the merits of a prisoner's claims. Mitchell cannot obtain federal habeas relief under 28 U.S.C. § 2254(d) for any claim that a state court "adjudicated on the merits" unless he can show that the state court decision "was contrary to, or involved an unreasonable application of, clearly...