Smith v. Dickhaut, Civil Action No. 12-30120-MGM

JAMES SMITH, Petitioner, v. THOMAS DICKHAUT,Superintendant, Souza BaranowskiCorrectional Center, Respondent.

Civil Action No. 12-30120-MGM

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

May 28, 2015

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S PETITION FOR WRIT OF HABEAS CORPUS

(Dkt. No. 1)

MASTROIANNI, U.S.D.J.

I. INTRODUCTION

Following a jury trial on August 2, 2007, James Smith ("Petitioner") was found guilty of first-degree murder, illegal possession of a firearm, and armed home invasion. On January 4, 2009, Petitioner filed a motion for a new trial, which the trial court denied. After consolidating Petitioner's direct appeal and his collateral appeal stemming from the denial of his motion for new trial, the Massachusetts Supreme Judicial Court ("SJC") reversed the armed home invasion conviction, but upheld the other convictions and affirmed the denial of the motion for new trial.

In the instant Petition for a Writ of Habeas Corpus, Petitioner alleges he was deprived of his right to testify and his counsel was ineffective. For the reasons explained herein, the court denies Petitioner's Writ because he has not demonstrated that the SJC unreasonably applied federal law, nor has he rebutted the presumption of correctness accorded to the SJC's factual findings with clear and convincing evidence.

II. BACKGROUND

A. Procedural Posture

On August 22, 2006, a Berkshire County grand jury returned six indictments, charging Petitioner with: (1) murder in violation of MASS. GEN. LAWS ch. 265, § 1; (2) armed home invasion in violation of MASS. GEN. LAWS ch. 265, § 18C; (3) illegal possession of a firearm in violation of MASS. GEN. LAWS ch. 269, § 10(a); (4) two counts of assault with a dangerous weapon in violation of MASS. GEN. LAWS ch. 265, §15B(b); and (5) intimidation of a witness in violation of MASS. GEN. LAWS ch. 268, §13B. (Record Appendix ("R.A.") 125-136.)¹ A Berkshire Superior Court jury found Petitioner guilty of murder in the first degree on theories of both deliberate premeditation and felony-murder predicated on armed home invasion. Commonwealth v. Smith, 946 N.E.2d 95, 100 (Mass. 2011). The jury also convicted Petitioner of armed home invasion and unlawful possession of a firearm.² Id.

After the trial, Petitioner entered an appeal in the SJC, and filed a motion for a new trial. (R.A. 75-87.) See Smith, 946 N.E.2d at 98. The trial judge denied this motion without a hearing on January 4, 2009. (R.A. 75-87.) Petitioner appealed this denial, and the SJC consolidated the direct appeal of his convictions and the collateral appeal of the denial of his motion for a new trial. See id.

On April 26, 2011, the SJC affirmed the convictions of felony murder and illegal possession of a firearm, as well as the denial of the motion for new trial. See id. The SJC did, however, reverse the armed home invasion conviction due to a lack of specificity in the indictment. The SJC alsofound the jury was sufficiently instructed such that the armed home invasion conviction could still serve as a predicate for felony murder. See id. at 101-02. The SJC did not explicitly determine whether the judge incorrectly instructed the jury about the use of excessive force in self-defense, which could have potentially tainted the jury's premeditated murder finding. See id. at 104. The court explained this question need not be answered due to its finding the armed home invasion conviction was a legitimate predicate for a first-degree murder verdict. See id.

On July 5, 2012, Petitioner filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (Dkt. No. 1), alleging: (1) an invalid waiver of his right to testify under the Sixth Amendment; and (2) Attorney Greg T. Schubert (hereinafter "Trial Counsel") was constitutionally ineffective in failing to (a) provide correct advice about whether to testify; (b) properly advise him about the future ramifications of waiving his right to testify; (c) establish and argue that physical evidence rendered the Commonwealth's theory of the case impossible; and (d) "marshal and argue the forensic evidence and Ms. Stark's testimony" to defend against the armed home invasion charge. (Dkt. No. 22, Petitioner's Memorandum in Support of Habeas Petition.)

B. SJC's Factual Determinations

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §§ 2244 et seq., a state court's factual determinations are presumed to be correct by the reviewing federal court.³ See Obershaw v. Lanman, 453 F.3d 56, 59 (1st Cir. 2006) (citing 28 U.S.C. § 2254(e)(1)); see also Torres v. Dennehy, 603 F. Supp.2d 264, 270 (D. Mass. 2009) ("AEDPA does not permit this [federal] court to revisit the full trial record and come to its own conclusions."). Accordingly, the SJC's factual findings will be repeated in full below for the purpose of providing factual background. This court recognizes, however, that some of Petitioner's arguments rest upon adispute as to certain aspects of the SJC's factual findings. (Dkt. No. 22, Petitioner's Memorandum in Support of Habeas Petition.) The court briefly mentions these disputes below and subsequently discuses them in more detail throughout the analysis. The following constitutes the SJC's recitation of the facts:

In June, 2006, the [Petitioner] moved into the apartment of Patricia Higgs in North Adams where he lived (along with [Ms.] Higgs, her fiancé, and her daughter) for approximately three weeks. The [Petitioner] was a member of the Crips street gang and sold both powdered and "crack" cocaine, heroin, and other drugs from [Ms.] Higgs's apartment, employing [Ms.] Higgs in the business in exchange for money and product. While operating out of [Ms.] Higgs's apartment the [Petitioner] enjoyed a steady stream of business but he and [Ms.] Higgs ultimately had a falling out and [Ms.] Higgs asked him to leave.

Approximately one week after [Ms.] Higgs asked the [Petitioner] to leave, a member of the Bloods street gang known as "G-Money" moved into [Ms.] Higgs's apartment along with his girl friend, Angela Stark, and began operating a similar business. Shortly after G-Money's arrival, [Ms.] Higgs was sitting in her kitchen when two men entered the kitchen and told [Ms.] Higgs to be quiet. [Ms.] Higgs recognized one of the men as a member of the Crips whom she also understood to be the [Petitioner]'s cousin. The two men then entered G-Money's bedroom, placed guns against the heads of G-Money and [Ms.] Stark, and proceeded to beat G-Money. Within hours of the beating, G-Money vacated the apartment. Several days after G-Money's departure another member of the Bloods, Kijona Osmond [("victim")], moved into the apartment. [The victim] began selling drugs from the apartment using the same business model as his predecessors.

At approximately 2 A.M. on July 25, 2006, [Petitioner] went to a Dunkin' Donuts restaurant in North Adams a short distance from [Ms.] Higgs's apartment. [Petitioner] mentioned to one of the store employees that he was new in North Adams, which he then compared to his native New York City. [Petitioner] was "antsy" and continued the conversation by comparing the "excitement" in the Bronx with the atmosphere in North Adams. He asked the employee whether she would contact the police if she saw someone get shot. [Petitioner] then left the Dunkin' Donuts and proceeded to [Ms.] Higgs's apartment.

At approximately the same time, [Ms.] Higgs began watching a movie with the victim. [Ms.] Higgs heard a knock on her front door and asked who was there but the mumbled response made it impossible for her to determine who was knocking. The knocking continued. [Ms.] Higgs got off of the couch and unlocked the front door. [Petitioner] was standing in the doorway holding a pistol.

[Petitioner] did not say anything to [Ms.] Higgs but instead grabbed her by the neck and threw her against the wall of her apartment. He held his gun to [Ms.] Higgs's head and demanded to know where the "stuff" was. [Ms.] Higgs said, "Please don't do this, my baby is in the other room." The victim then got up from the couch and moved toward the

apartment's kitchen where the back door was located. [Petitioner], holding his gun in one hand and directing [Ms.] Higgs with the other, released [Ms.] Higgs and attempted to grab the victim's shirt. The victim turned to struggle with the [Petitioner] at which point [Petitioner] fired a single round into the victim's neck from approximately one to two feet away.

This shot to the neck caused the victim to collapse instantly, although the medical examiner concluded that it was not the cause of death. The victim collapsed with the left side of his face on the floor. The victim was lying wounded, bleeding profusely, and was not an immediate threat to the [Petitioner]. The [Petitioner], however, stepped over the victim, straddled his prone body, and fired a second shot into the back of the victim's head.

After firing the second, fatal, shot, the [Petitioner] stooped to pull money and drugs from the victim's pockets. While the [Petitioner] was examining the victim's pockets, [Ms.] Higgs's fiancé began screaming from the couple's bedroom. [Petitioner] ran into the bedroom, waved and pointed his gun at [Ms.] Higgs's fiancé and their daughter, and told the fiancé to keep his mouth shut. Taking advantage of this distraction, [Ms.] Higgs fled the apartment and hid behind a neighboring building. [Petitioner] then left the apartment and the area.

Having seen the [Petitioner] depart, [Ms.] Higgs returned to the apartment. [Ms.] Stark, who had been in the kitchen at the time of the shooting, informed [Ms.] Higgs that her fiancé had taken their daughter from the apartment through the back door. [Ms.] Higgs and [Ms.] Stark then discussed the repercussions if contraband were found on the victim's body in [Ms.] Higgs's apartment, prompting [Ms.] Higgs to search the victim's pockets for drugs and money that the [Petitioner] may have left. She handed what she found to [Ms.] Stark. [Ms

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