Paradise v. Dubois, CIV.A. 98-40060-NMG.

188 F.Supp.2d 4

Lionel J. PARADISE, Jr., Petitioner, v. Larry E. DuBOIS, Respondent.

No. CIV.A. 98-40060-NMG.

United States District Court, D. Massachusetts.

December 21, 2001.

Terry S. Nagel, Springfield, MA, for Petitioner.

Cathryn A. Neaves, Attorney General's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

GORTON, District Judge.

Pending before this Court is the substituted and amended application of Petitioner, Lionel J. Paradise, Jr., for issuance of a Certificate of Appealability ("COA")¹. Paradise filed his original petition for a writ of habeas corpus under 28 U.S.C. § 2254 on April 21, 1998. The case was referred to Magistrate Judge Charles B. Swartwood, III on May 14, 1999 and he issued a Report on November 9, 2000 recommending that the petition be denied. On February 19, 2001 this Court accepted and adopted the Recommendation of Magistrate Judge Swartwood and denied the petition for a writ of habeas corpus.

I. Background

On December 11, 1984, Paradise was convicted of the murders of two children, armed assault with intent to murder another child, and assault and battery by means of a dangerous weapon. Paradise was sentenced to two consecutive life sentences for the murder convictions, a consecutive nineteen and one-half to twenty year term for the conviction for armed assault and a concurrent nine and one-half to ten year term for the conviction for assault and battery with a dangerous weapon.

Paradise appealed his convictions in state court on eight grounds none of which alleged ineffective assistance of counsel.² The Supreme Judicial Court ("SJC") affirmed his convictions.

On April 3, 1995, Paradise, proceeding pro se, filed a motion for a new trial on the following four grounds: 1) he received ineffective assistance of counsel because his attorney failed to advise him of his constitutional right to testify and failed to secure the appearance of a material witness at trial, 2) the prosecution failed to disclose exculpatory evidence, 3) the trial judge's actions at trial demonstrated his bias against Petitioner, and 4) the jury instructions were erroneous. The state trial court denied the motion.

Paradise then filed a "Motion for Reconsideration and to Amend Defendant's Pro Se Motion for a New Trial," seeking relief on the grounds of ineffective assistance of counsel. In addition to the two ineffective assistance of counsel claims asserted in his first motion for a new trial, he also alleged that his attorney failed to meet with him for a sufficient period of time prior to trial. The trial court denied the motion.

Paradise subsequently filed a petition for leave to appeal in the Supreme Judicial Court pursuant to the gatekeeper provision of M.G.L. c. 278 § 33E. In the petition, Paradise realleged his ineffective assistance of counsel claims. He also asserted that his attorney rendered ineffective assistance by failing to request an inquiry into the jury's request for mental examination reports when no mention of such reports had been made at trial. The SJC denied the petition on the merits, but did not address Petitioner's claim that his trial attorney failed to meet with him for a sufficient period of time prior to trial.

II. Discussion

A. The Original § 2254 Petition

In his original habeas petition, Paradise alleged various ineffective assistance of counsel claims arguing that his trial counsel 1) failed to summons or request the presence of a witness, 2) refused to allow Petitioner to testify and failed to inform him of his right to do so, 3) failed to meet with Petitioner on a sufficient number of occasions prior to trial, and 4) failed to inquire into the jury's request for mental examination reports when there was no evidence or testimony that Petitioner had received such an exam.

In the Memorandum and Order denying Paradise's § 2254 petition, this Court analyzed Petitioner's ineffective assistance of counsel claims according to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).³ According to Strickland, in order to succeed on an ineffective assistance claim, the Petitioner must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness and (2) Petitioner was consequently prejudiced. Id. at 687, 104 S.Ct. 2052. Thus, even if counsel provided ineffective assistance, the court must delve into the merits of the case to determine whether the Petitioner was prejudiced. The defendant must

show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Id. at 694, 104 S.Ct. 2052.

Analyzing Paradise's claims according to the standard articulated in Strickland, this Court held that Petitioner failed to show prejudice. This Court found that due to the overwhelming evidence inculpating Paradise, including the eyewitness testimony of the lone surviving witness, there was no reasonable likelihood that the outcome at trial would have been different if 1) the witness had been present, 2) trial counsel had met with Petitioner on more occasions, 3) Petitioner had testified, or 4) counsel had inquired into the jury's request for mental examination reports.

B. Law Governing Certificate of Appealability

Under federal statute, federal rules and the local rules for the First Circuit Court of Appeals, a habeas petitioner may not appeal the final order of a district court dismissing his petition unless he first obtains a Certificate of Appealability ("COA"). 28 U.S.C. § 2253(c)(1)(stating that a habeas petitioner may not appeal the district court's final judgment unless a "circuit justice or judge" issues a COA); Fed. R.App. P. 22(b)(stating that an appeal by a habeas petitioner may not proceed without the issuance of a COA by a district or circuit judge); Loc. R. 22.1(a), Rules of Court for the United States Court of Appeals for the First Circuit (stating that ordinarily a request for a COA should be made to the district court that dismissed the original petition).

Section 2253(c), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996, provides that "[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In ruling on a motion for a COA, a district court must state which issues, if any, satisfy the standard set forth in § 2253(c)(2) or the reasons for its denial of the motion. Loc. R. 22.1(a).

Where, as here, a district court has rejected constitutional claims on the merits, the petitioner seeking a COA must show that (1) the issues are debatable among jurists of reason, (2) a court could resolve the issues in a different manner, or (3) the questions are "adequate to deserve encouragement to proceed further." Smith v. United States, 989 F.Supp. 371, 374 (D.Mass.1997)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

C. Paradise's Request for Certificate of Appealability

In his petition, Paradise reiterates his arguments concerning the ineffective assistance of trial counsel with respect to his attorney's 1) failure to secure the presence of a particular witness at trial, 2) failure to cure or object to the possibility of the jury's exposure to extraneous information regarding mental examination reports, 3) failure to meet with Petitioner for a sufficient period of time prior to trial and doing so while intoxicated, and 4) unilateral decision to prevent Petitioner from testifying.

Because this Court reached the merits of the issues, in order to allow a COA on those issues, this Court must find that 1) the issues are debatable among jurists of reason, 2) a court could resolve the issues in a different manner, or 3) the question is "adequate to deserve encouragement to proceed further." Smith, 989 F.Supp. at 374.

The issues presented do not appear to satisfy the above criteria for the issuance of a COA. It is not debatable that Paradise has failed to show that there is a reasonable probability that the outcome of the trial would have been different without the alleged ineffective assistance of his trial counsel. Even though one of the witnesses was not summonsed to appear for trial, her statements that were favorable to Petitioner were read to the jury. Her physical presence would most likely have damaged Petitioner's case because her statements would have been subjected to cross examination by the prosecution. Her testimony was inconsistent with statements made by Petitioner as well as testimony of the lone surviving victim. Moreover, the other evidence which included samples of Petitioner's blood and some of his belongings found at the scene so over-whelmingly inculpated Petitioner that there is no reasonable probability that the outcome of the trial would have been different.

Petitioner also failed to show that there was a reasonable probability that the outcome would have been different had his attorney objected to or cured the possibility that the jury was exposed to extraneous information during the trial. During jury deliberations, the jury submitted a question to the judge requesting medical examination reports from Petitioner's stay at Bridgewater State Hospital. This request was puzzling because there was no evidence or testimony that Petitioner had been sent to Bridgewater State Hospital. In addition, Petitioner's mental state was not introduced into evidence. The judge instructed the jury that no such reports were in evidence and that they were not...