Silva v. Tompkins

EDSON SILVA, Petitioner, v. STEVEN W. TOMPKINS, Respondent.

Civil Action No. 15-cv-10681-ADB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

April 25, 2019

MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS CORPUS

BURROUGHS, D.J.

On September 23, 2010, following a jury trial in Boston Municipal Court, Central Division, Petitioner Edson Silva ("Silva") was convicted of unlawful possession of a loaded firearm and ammunition without an FID card in violation of Mass. Gen. Laws ch. 269, §§ 10(a), 10(n), and 10(h) and of defacing a serial number in violation of Mass. Gen. Laws ch. 269, § 11C. Silva was sentenced to three years in the House of Corrections, followed by probation. Before the Court is Silva's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 ("Petition"). [ECF No. 1]. For the reasons stated herein, Silva's Petition is denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 17, 2009, at approximately 2:15 a.m., Boston Police officers Richard McCormack and Michael Condon were on a routine patrol in a cruiser near the Uphams Corner area of Boston when they saw two individuals in the street, walking towards them. [Supplemental Answer ("S.A.") at 402-08]. According to one of the officers, one of the individuals, Silva, left the middle of the street and moved onto the sidewalk. [Id. at 408-09]. Officer McCormack testified that he then observed Silva bend down behind a car, extend his arm, and then stand back up and continue to walk towards the officers. [Id. at 409-11]. The officer did not see anything in Silva's hand. See [id. at 474-75]. Silva was detained by the officers. [Id. at 493]. Once additional units arrived, Officer McCormack walked to the location where he had observed Silva bend down and extend his arm and retrieved a firearm. [Id. at 423-24, 508-09]. Officer Myron Phillips testified that when Silva was told that he was being charged with illegal possession of a firearm, Silva stated "how are you going to charge me with possession, you didn't see me throw it." [Id. at 559].

Following his September 23, 2010 conviction on the four counts, Silva appealed to the Massachusetts Appeals Court ("Appeals Court"). Commonwealth v. Silva, No. 13-P-24, 2013 WL 6633943, at *1 (Mass. App. Ct. Dec. 18, 2013).¹ The Appeals Court agreed with Silva that his conviction for unlawful possession of ammunition was a lesser-included offense (as conceded by the Commonwealth) and reversed that conviction. Id. The Appeals Court then affirmed Silva's three remaining convictions in an opinion that specifically rejected three of the other arguments raised by Silva, and summarily rejected the remaining arguments. See id. at *1-2 & n.1. The Appeals Court rejected Silva's arguments that (1) the trial court's instruction to the jury regarding reasonable doubt was inadequate; (2) the prosecutor's closing argument was improper when it analogized Silva's case to a "junk drawer" and a "distraction" and that (3) the trial judge erred in denying his motion to suppress, finding that the police officers had a reasonable suspicion to stop him. Id. The Appeals Court rejected Silva's remaining arguments in a footnote, stating that "[t]o the extent that we do not address separately each of the defendant's other contentions, 'they have not been overlooked. We find nothing in them that requiresdiscussion.'" Id. at *2 n.1 (quoting Dep't of Rev. v. Ryan R., 816 N.E.2d 1020, 1027 (Mass. App. Ct. 2004)).

Silva then applied to the Massachusetts Supreme Judicial Court ("SJC") for further appellate review but, on February 28, 2014, the SJC declined to hear his appeal. Commonwealth v. Silva, 6 N.E.3d 546 (Mass. Feb. 28, 2014) (table). Silva did not seek certiorari to the U.S. Supreme Court and filed this Petition on March 5, 2015, more than ninety days after the SJC's denial of further review. [ECF No. 1].

Silva's Petition initially raised twelve issues (some with subparts), including the three issues specifically discussed by the Appeals Court, as well as the nine additional issues upon which relief was summarily denied. See [ECF No. 1-1]. On May 8, 2015, Steven W. Tomkins ("Respondent") filed his answer to the Petition and moved to dismiss, arguing that because certain issues were not exhausted in the Massachusetts state courts, the Petition should be dismissed in its entirety. [ECF Nos. 9, 11, 12]. In response to this motion, Silva sought leave to voluntarily dismiss the three claims that Respondent asserted were not properly exhausted in the state courts. [ECF No. 15]. This Court granted the motion, dismissed the three unexhausted claims, and allowed Petitioner to proceed on the remaining nine claims.² [ECF No. 16]. On November 12, 2015, Respondent filed his Memorandum of Law in Opposition to the Petition. [ECF No. 20]. This opinion addresses the remaining claims raised by Silva.

II. LEGAL STANDARD

A. The Antiterrorism and Effective Death Penalty Act of 1996³

A federal district court's review of a state criminal conviction is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). 28 U.S.C. § 2254. The AEDPA permits federal courts to grant habeas relief after a final state adjudication of a federal constitutional claim only if that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(a), (d)(1)-(2). A state court decision is "contrary to" clearly established Supreme Court precedent if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently from a decision of the Supreme Court on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is considered an unreasonable application of Supreme Court precedent if the state court identifies the correct legal rule but unreasonably applies it to the facts. Id. at 407. An unreasonable application requires "some increment of incorrectness beyond error." Norton v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (internal quotations omitted). A state court judgment is based on an unreasonable determination of thefacts if the decision is "objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The petitioner carries the burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In conducting a habeas review, a federal court is limited to deciding whether the conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Furthermore, "[e]rrors based on violations of state law are not within the reach of federal habeas petitions unless there is a federal constitutional claim raised." Kater v. Maloney, 459 F.3d 56, 61 (1st Cir. 2006).

A federal court cannot grant habeas relief to a state prisoner unless the prisoner has first exhausted his federal constitutional claims in state court. 28 U.S.C. § 2254(b)(1)(A). "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A claim for habeas relief is exhausted if it has been "fairly and recognizably" presented in state court. Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)). In other words, "a petitioner must have tendered his federal claim [in state court] in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Id. (quotations and citations omitted).

"[A] state court decision that does not address the federal claim on the merits falls beyond the ambit of AEDPA. When presented with such unadjudicated claims, the habeas court reviews them de novo." Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010). However, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99(2011). "Section 2254(d) applies even where there has been a summary denial." Cullen, 563 U.S. at 187.

B. Standard of Review

Silva argues that this Court should review each of his habeas claims de novo because the Appeals Court did not adjudicate his claims on the merits. [ECF No. 1-1 at 16]. In general, as Silva acknowledges, when a state court issues an order that summarily rejects without discussion a habeas petitioner's claims, the reviewing habeas court is to presume (subject to rebuttal) that the federal claim was adjudicated on the merits. [Id. at 17]. Here, the Appeals Court discussed three issues raised by Silva in its opinion, and rejected the remainder in a footnote, where it stated that "[t]o the extent that we do not address separately each of the defendant's other contentions, 'they have not been overlooked. We find nothing in them that requires discussion.'" Silva, 2013 WL 6633943, at *2 n.1 (quoting Dep't of Rev. v. Ryan R., 816 N.E.2d 1020, 1027 (Mass. App. Ct. 2004)). Because of the summary disposition of some of his arguments by the Appeals Court, Silva argues that this Court should reject the presumption that all of his claims were adjudicated on the merits. [ECF No. 1-1 at 24].

In support of the argument that the Appeals Court did not render a judgment on the merits, Silva cites Johnson v. Williams, 568 U.S. 289, 302 (2013), in which the Supreme Court explained that a judgment is rendered on the merits if it...