Stote v. Allen

Filing 175

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING IN PART and DENYING IN PART 168 Motion for Leave to File a Supplemental Memorandum In Support of Petitioner's Opposition to Respondent's Motion to Strike Exhibi ts and Petitioner's Supplemental Memorandum. The motion sets forth at pages 1 through 5 the state procedural points Petitioner seeks to bring to the attention of the court and will be considered by the court as a supplemental memorandum in suppo rt of Petitioner's opposition. No further supplemental memorandum need be filed. ALLOWING IN PART and DENYING IN PART 163 Motion to Strike Petitioners Exhibits to Petitioner's Amended Memorandum In Support of the Amended Petition for Writ of Habeas Corpus. See Attached Order. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN E. STOTE,
Petitioner,
v.
GARY RODEN,
Respondent.

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Civil Action No. 01-cv-12139-IT

MEMORANDUM & ORDER
December 22, 2017
TALWANI, D.J.
Pending before this court are Respondent’s Motion to Strike Petitioner’s Exhibits to
Petitioner’s Amended Memorandum In Support of the Amended Petition for Writ of Habeas
Corpus [“Motion to Strike”] [#163], and Petitioner’s Motion for Leave to File a Supplemental
Memorandum In Support of Petitioner’s Opposition to Respondent’s Motion to Strike Exhibits
and Petitioner’s Supplemental Memorandum [“Motion for Leave to File Supplemental
Memorandum”] [#168]. For the reasons that follow, both motions are ALLOWED IN PART
AND DENIED IN PART.
I.

Motion for Leave to File Supplemental Memorandum
Approximately two weeks after filing his opposition to Respondent’s Motion to Strike,

Petitioner moved for leave to file a supplemental memorandum in opposition, “as a result of
further discussions” between Petitioner and his counsel. Mot. Leave File Suppl. Mem. [#168].
His motion sets forth at pages 1 through 5 the state procedural points Petitioner seeks to bring to
the attention of the court and will be considered by the court as a supplemental memorandum in
support of Petitioner’s opposition. No further supplemental memorandum need be filed.

Accordingly, Petitioner’s Motion for Leave to File Supplemental Memorandum [#168] is
ALLOWED IN PART and DENIED IN PART.
II.

Motion to Strike
After Petitioner filed his Reply to Respondent’s Memorandum of Law in Opposition to

Petition for a Writ of Habeas Corpus, [#162], Respondent moved to strike the exhibits submitted
in support of that memorandum. Mot. Strike [#163]. The exhibits to which Respondents objects
fall into three categories: (1) exhibits already included in the Supplemental Answer [“S.A.”]
[#39]; (2) exhibits included in Petitioner’s Motion for Leave to Expand the Record [#74]; and (3)
additional exhibits.
Review of a state court’s decision under 28 U.S.C. § 2254(d)(1) “is limited to the record
that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011); Garuti v. Roden, 733 F.3d 18, 22 (1st Cir. 2013). This limitation rests on
the idea that such review “requires an examination of the state-court decision at the time it was
made. It follows that the record under review is limited to the record in existence at that same
time i.e., the record before the state court.” Pinholster, 563 U.S. at 182-83 (noting that it would
otherwise “be strange to ask federal courts to analyze whether a state court’s adjudication
resulted in a decision that unreasonably applied federal law to facts not before the state court”).
The same limitation applies to review under § 2254(d)(2). Garuti, 733 F.3d at 23.
Although expansion of the record is allowed under Rule 7 of the Rules Governing
Section 2254 Cases, a petitioner must first show that the conditions set forth in § 2254(e)(2) are
met. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam) (stating that the
restrictions in § 2254(e)(2) “apply a fortiori when a prisoner seeks relief based on new evidence
without an evidentiary hearing”); Mark v. Ault, 498 F.3d 775, 788 (8th Cir. 2007). Under

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§ 2254(e)(2), a petitioner who “failed to develop the factual basis of a claim in State court
proceedings” shall not receive an evidentiary hearing unless he “shows that the claim relies on a
new rule of constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or a factual predicate that could not have been previously
discovered through the exercise of due diligence.” Further, a petitioner must show that “the facts
underlying the claim would be sufficient to establish by clear and convincing evidence that but
for the constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” Id.
A. Exhibits Contained in the Supplemental Answer [#39]
Exhibits 1, 3-5, 9-12, 16, and 19-20 are also contained in the Supplemental Answer
[#39]. See S.A. 301-12 (Ex. 1); S.A. 1113-14 (Ex. 3); S.A. 1111-12 (Ex. 4); S.A. 1119-20 (Ex.
5); S.A. 641-43, 671 (Ex. 9); S.A. 671-72, 745-46 (Ex. 10); S.A. 665, 672, 747-48 (Ex. 11); S.A.
673, 749-50 (Ex. 12); S.A. 104-07 (Ex. 16); S.A. 611-15, 645 n. 1 (Ex. 19); S.A. 644-54 (Ex.
20). These exhibits are part of the record before the state court, and are properly considered by
the court here, regardless of whether they are “cumulative.” See Pinholster, 563 U.S. at 182.
Further, Exhibit 2 is a printout of Commonwealth v. Stote, 456 Mass. 213 (2010), a state court
decision upon which the Petition [#1] is based. Accordingly, Respondent’s Motion to Strike
[#163] is DENIED with respect to Exhibits 1-5, 9-12, 16, and 19-20.
B. Exhibits Referenced in Petitioner’s Motion for Leave to Expand the Record
[#74]
Petitioner previously sought to expand the record to include, among other documents,
Exhibits 6, 13-15, and 18. Motion for Leave to Expand the Record [#74]. The judge to whom
this case was previously assigned denied that motion, holding that the proposed exhibits were
inadmissible under § 2254(d), and further, that Petitioner had failed to meet the requirements for

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an evidentiary hearing and expansion of the record under § 2254(e)(2). Elec. Order [#94]. This
court subsequently denied Petitioner’s request for reconsideration of that order. Mem. & Order
[#127]. Petitioner has not presented new grounds for this court to overturn those prior orders.
Accordingly, Respondent’s Motion to Strike [#163] is ALLOWED with respect to Exhibits 6,
13-15, and 18.
C. Additional Exhibits
The three remaining exhibits—Exhibits 7-8 and 17—were not included in the
Supplemental Answer [#39], the subject of Petitioner’s Motion for Leave to Expand the Record
[#74], or otherwise previously presented to this court. As an initial matter, the documents are not,
as Petitioner asserts, part of the record simply because they were produced during pre-trial
discovery. As noted above, the focus of analysis under 28 U.S.C. § 2254(d) is “what the state
court knew and did” when it made its decision. Pinholster, 563 U.S. at 182. That a document was
produced during discovery does not establish that the state court was aware of that document
when it rendered its decision.
Further, Petitioner cannot make the required showing under § 2254(e)(2) for expansion of
the record pursuant to Rule 7. Exhibits 7 and 171 purport to be a police report by Detective
Eugene J. Dean that includes a discussion of advice given to Petitioner by his attorney. Although
Petitioner describes these exhibits as “exculpatory,” their exculpatory value is not readily
apparent. Moreover, Detective Dean testified during trial, and Petitioner’s trial counsel was
given a chance to cross-examine him. Petitioner has not articulated what information could be
found in Detective Dean’s report that he did not testify to at trial, or that was not brought out on
cross examination.

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These documents are identical.

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Exhibit 8 purports to be the victim’s undisclosed record. To the extent this document
includes information regarding the victim’s 1987 arrest and charges on gaming related offenses,
the trial court ruled that those facts were inadmissible “as too remote, in my opinion, to be
probative of anything, and especially as the result for the conviction of receiving stolen
property.” S.A. 2560-61. To the extent this document includes information regarding the victim’s
association with members of organized crime, it is cumulative of testimony offered at trial. For
example, Massachusetts State Trooper Timothy Alben testified regarding “his personal
observations in seeing Mr. Regan in the company of [members of organized crime] in 1992.”
S.A. 2563.2
As a result, these exhibits do not provide “clear and convincing evidence” that
Petitioner’s trial counsel’s performance was constitutionally defective, or that but for that
constitutionally defective performance, no reasonable fact finder would have found him guilty of
murder in the first degree. Accordingly, Respondent’s Motion to Strike [#163] is ALLOWED
with respect to Exhibits 7-8 and 17.
III.

Conclusion
For the foregoing reasons, Petitioner’s Motion for Leave to File Supplemental

Memorandum [#168] is ALLOWED IN PART and DENIED IN PART, and Respondent’s
Motion to Strike [#163] is DENIED with respect to Exhibits 1-5, 9-12, 16, and 19-20, and
ALLOWED with respect to Exhibits 6-8, 13-15, and 17-18.
IT IS SO ORDERED.
Date: December 22, 2017

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/s/ Indira Talwani
United States District Judge

The trial court did not permit Trooper Alben to testify on any other matters. Id.

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