Exilhomme v. Spencer

Filing 22

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered dismissing petition. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FECKIERT EXILHOMME,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
LUIS SPENCER,
Respondent.

CIVIL ACTION NO.
08-10552-DPW

MEMORANDUM AND ORDER
August 24, 2011
After unsuccessfully appealing his second-degree murder
conviction in Massachusetts state courts, petitioner Feckiert
Exilhomme now seeks a federal writ of habeas corpus.

As grounds

for federal relief, Exilhomme argues that he received ineffective
assistance of counsel and that his conviction constitutes a
manifest injustice.

After carefully considering Exilhomme’s

claims, I conclude that he is not entitled to relief in this
court and will deny his petition.
I. BACKGROUND
A.

Factual Background
When federal courts examine a petitioner’s claims under 22

U.S.C. § 2254, state court factual determinations are presumed
correct absent clear and convincing evidence to the contrary.
U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).

The factual determinations are recounted in the
1

28

Massachusetts Appeals Court’s summary of the facts, which I
supplement by reference to certain trial testimony:
On July 23, 2002, at about 12:45 A.M., the defendant
[Exilhomme] stabbed the victim [Oscon Sainterling] in
the groin with a knife that resulted in his death.
According to the Commonwealth, the killing had been
planned by the defendant, who was acting out of revenge
for the attention he perceived the victim had paid to
his girlfriend [Martine Nherisson]. The defendant
maintained however, that he had tried to talk to the
victim earlier in the day to settle their problems, but
their mutual friends interfered and turned on the
defendant. Later that evening, when the defendant
learned that the victim and some of his friends were
looking for him, and believing that they had armed
themselves with knives, the defendant grabbed a knife
from his kitchen and went outside with it because he
did not want anyone coming to his apartment and harming
his mother and sister, with whom he lived. Outside, he
encountered the victim, who was alone[and] appeared to
be holding something in his waist[band]. The defendant
claimed that he was afraid the victim would kill him so
he stabbed the victim in self-defense. The victim did
not, in fact, have any weapons with him.
Commonwealth v. Exilhomme, No. 05-P-418, 2007 WL 1138442, at *1
(Mass. App. Ct. Apr. 17, 2007) (order pursuant to Mass. App. Ct.
R. 1:28 Summary Disposition).
Before Exilhomme left his apartment, he had been talking to
Martine Nherisson on the phone.

While the two were speaking,

Nherisson investigated loud banging at the door.

She found the

victim and several friends, who were looking for Exilhomme.
According to Exilhomme, he overheard someone say that they had
knives.

Exilhomme grabbed a 14-inch steak knife from his kitchen

and went outside, where he eventually encountered the victim.

2

B.

Proceedings Through Trial
Exilhomme was indicted on a charge of murder in the first

degree.

Exilhomme, 2007 WL 1138442, at *1.

testified on his own behalf.

At trial, he

Before dismissing the jury for

deliberations, the trial judge charged the jury with oral
instructions on first degree murder, the lesser included offenses
of second degree murder and voluntary manslaughter due to
excessive force in self defense, and on self defense.

Id. at *2.

The judge also provided the jury with a written summary of the
instructions.

Id. at *1.

The trial judge provided the following oral reasonable doubt
instruction:
In every criminal case, as we discussed at the
very beginning of our case during empanelment, in every
criminal case, an accused person is presumed innocent
and retains that presumption of innocence until and
unless the prosecution establishes guild of a charge by
proof beyond a reasonable doubt. And that burden of
proof never leaves the shoulders of the prosecution.
It stays there from the start to the finish of the
case.
Now, throughout our lives we have heard that
phrase, proof beyond a reasonable doubt, and as we grow
up, and as we grow older, we form a general sense about
its meaning. We know that it is a very heavy burden of
proof. But beyond that, beyond encountering it in our
culture, through literature, drama, stories,
periodicals, accounts of trials, we probably don’t
advance beyond that general sense that proof beyond a
reasonable doubt is a very heavy burden of proof. We
want to define it as precisely as we can. So I’m going
to define it for you now. . . .
Let me address first the doctrine of proof beyond
a reasonable doubt. Proof beyond a reasonable doubt
3

consists of the following critical points. First of
all, it is proof to a high degree. Second, it is proof
beyond that of a mere probability. It is more than
proof of a mere probability. Probability means more
likely than not. It is more than that. It is more
than proof of a mere probability. Third - - by the
way, when I say probability, please remember that
probability means more probable than not. The burden
of proof beyond a reasonable doubt requires proof
beyond that of a greater probability.
Further, it requires more than proof of a strong
probability. It is more than a strong probability.
However, it does not mean proof to an absolute
certainty nor proof beyond all possible doubt. It does
not mean proof to an absolute certainty, and it does
not mean proof beyond all possible doubt.
The law refers to proof beyond a reasonable doubt
as proof to a, quote, moral certainty. Proof to a
moral certainty means that a juror must conscientiously
consider all the evidence and then have a resulting
firm and settled belief that the chart is true. Let me
repeat that point. Proof to a moral certainty means
that a juror must conscientiously consider all the
evidence and have a resulting firm and settled belief
that the charge is true.
If a juror has conscientiously considered all the
evidence and hasn’t reached a firm and settled belief
in the truth of a charge, then the juror has reasonable
doubt and must vote to acquit. That is the definition
of proof beyond a reasonable doubt, and you’ll have it
with you in writing in the deliberation room.
The written instructions on reasonable doubt submitted to the
jury were a more concise version of the oral instructions.1

1

The written instruction on reasonable doubt stated:
Proof beyond a reasonable doubt is proof to a high
degree. It is more than proof of a mere probability
(more likely than not) of guilt. It is more than proof
of a strong probability of guilt. However, it does not
mean proof to an absolute certainty nor proof beyond
all possible doubt. The law refers to proof beyond a
reasonable doubt as proof to a “moral certainty.”
4

Exilhomme’s counsel did not object to the oral reasonable
doubt charge or to the written, summary instructions; nor did he
request an instruction regarding voluntary manslaughter due to
reasonable provocation or sudden combat.

On June 16, 2003, the

jury found Exilhomme guilty of murder in the second degree, and
the trial judge sentenced Exilhomme to the mandatory life
sentence.
C.

Post-Trial Proceedings
Exilhomme appealed his conviction and thereafter filed a

motion for a new trial.

As grounds, he cited ineffective

assistance of trial counsel for (1) failure to object to partial
written instructions, (2) failure to object to a defective
reasonable doubt instruction, and (3) failure to request an
instruction on the alternative theory of voluntary manslaughter.
The Appeals Court stayed the appeal of conviction pending the
resolution of the new trial motion.
The trial judge denied the motion for a new trial on
February 24, 2006.

Commonwealth v. Exilhomme, No. 2002-01779,

Rulings (Mass. Supr. Ct. Feb. 24, 2006).

The trial judge

Proof to a moral certainty means that a juror must
conscientiously consider all the evidence and have a
resulting firm and settled belief that the charge is
true. If a juror has conscientiously considered all
the evidence and has not reached a firm and settled
belief of the truth of a charge, then the juror has
reasonable doubt upon that charge.
(App., Ex. 1.)
5

rejected Exilhomme’s argument that any written instructions
submitted to the jury required a verbatim reproduction of the
oral instructions.

Id. at 2–3.

The judge stated that “[t]he

governing decisions now authorize, or even encourage, the
submission of the elements of charged crimes to the jury by
summary written instruction accompanying deliberation.”
3.

Id. at

Because there was no basis for an objection, the court

concluded, counsel was not deficient in failing to raise one.
Id.

The trial judge rejected Exilhomme’s second failure-to-

object claim on similar futility grounds.

Id. at 4.

The court

determined that, although the “pure Webster charge”2 was not
given, “[b]oth the oral and written instructions itemize each
essential element of the Webster charge and its modern
adaptations.”

Id.

The trial judge also found no deficiency in counsel’s
failure to request the alternative voluntary manslaughter
instruction.

Id. at 5.

He observed that the defense was “built

. . . upon evidence and argument of self-defense or excessive
force in self-defense.”

Id.

Thus, he found defense counsel made

a reasonable tactical decision not to pursue the reasonableprovocation or sudden-combat defense because that theory “would

2

A Webster charge, used by many judges in the Commonwealth,
refers to the explanation of reasonable doubt provided by Supreme
Judicial Court Chief Justice Leonard Shaw in Commonwealth v.
Webster, 59 Mass. 295 (1850).
6

have created a tension with the theories of self-defense (either
fully exculpatory or excessive) and would have created the risk
of undermining the credibility of both the themes of self-defense
and heat of passion.”

Id.

The trial judge concluded that

defense counsel “was entitled to make a rational tactical choice
to omit the additional theory” and doing so was not a “‘serious
incompetency’ or ‘performance measurably below that which might
be expected from an ordinary fallible lawyer.’” Id. (quoting
Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass. 1974)).
The Appeals Court consolidated the appeal with his appeal of
the conviction, which was based on the same grounds raised by the
motion.

In its brief, unpublished opinion affirming the

conviction and decision, the Appeals Court agreed with the trial
court’s reasoning.

Id. at *1–2.

The court concluded that

counsel was not ineffective in failing to object to the written
or reasonable-doubt instructions because those instructions were
not erroneous.

Id. at *1–2.

Quoting Commonwealth v. Guy, 803

N.E.2d 707, 718 (Mass. 2004), the court stated that “[a] judge
may provide the jury with an accurate statement of the elements
of a crime in a summary form, in writing, without the parties’
consent.”

Id. at *1 (quotation marks omitted).

With respect to

the written and oral reasonable doubt charges, the court observed
that the instructions were “identical in all material respects to
those that withstood similar challenges in [Commonwealth v.

7

Walker, 861 N.E.2d 457, 463–64 (Mass. App. Ct. 2007)].”
*1–2.

Id. at

The court determined that the “judge properly explained

the concept of proof beyond a reasonable doubt,” and that “[t]his
conclusion is bolstered by the fact that the jury acquitted the
defendant of the most serious crime with which he was charged,
suggesting at least that the jury were prepared to reject charges
not adequately supported by the evidence.”

Id. at *2

In rejecting Exilhomme’s contention that counsel was
ineffective for failing to request an instruction on the
alternative lesser included offense, the Appeals Court “agree[d]
both with the motion judge’s reasons and the reasons stated in
the Commonwealth’s brief, pages eighteen through thirty-one.”
Id.

Specifically, the court concurred in the trial court’s

determination that instructing on involuntary manslaughter based
on reasonable provocation or sudden combat would have “created
tension” with defense’s theory of self defense and, accordingly,
counsel’s failure to object was a “reasonable tactical choice.”
Id.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., a federal court may
grant a state prisoner habeas relief if the state court’s
decision on the merits “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
8

established Federal law, as determined by the Supreme Court of
the United States.”

28 U.S.C. § 225A(d)(1).

The Supreme Court has held that “clearly established federal
law” only “refers to the holdings, as opposed to the dicta, of
[the Supreme] Court’s decisions as of the time of the relevant
state-court decision.”
(2000).

Williams v. Taylor, 529 U.S. 362, 412

A decision is “contrary to” clearly established federal

law “if the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.”

Id. at 413.

An “unreasonable application of” clearly established federal law
occurs “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s cases but unreasonably
applies it to the facts of the . . . prisoner’s case.”
407.

Id. at

An application of clearly established federal law is

unreasonable under this standard only if it is “objectively
unreasonable,” not merely if it is incorrect.

Id. at 409; see

also Grant v. Warden, Me. State Prison, 616 F.3d 72, 76 (1st Cir.
2010) (“Under this deferential standard, the state court’s
decision is not vulnerable unless it evinces some increment of
incorrectness beyond mere error.” (citation and internal
quotation marks omitted)).

Finally, the First Circuit has

interpreted the “unreasonable application” standard to mean that

9

“if it is a close question whether the state decision is in
error, then the state decision cannot be an unreasonable
application.”

L’Abbe v. DiPaolo, 311 F.3d 93, 98 (1st Cir. 2002)

(citation and quotation marks omitted).
III. ANALYSIS
Citing Rose v. Lundy, 455 U.S. 509, 518–19 (1982), the
Commonwealth argues at the outset that I should dismiss
Exilhomme’s petition as an improper “mixed” petition containing
both exhausted and unexhausted claims.

In particular, the

Commonwealth contends that Exilhomme’s first and fourth claims —
ineffective assistance of counsel (a) for failure to object to
written supplemental instructions and (b) on the basis of
manifest injustice — were not appealed to the Supreme Judicial
Court and, consequently, are unexhausted.
AEDPA mandates that habeas relief “shall not be granted
unless it appears that the applicant has exhausted the remedies
available in the courts of the State.”
§ 2254(b)(1)(A).

28 U.S.C.

“It follows that a petitioner’s failure to

present his federal constitutional claim to the state courts is
ordinarily fatal to the prosecution of a federal habeas case.”
Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011)
(citation omitted).

As a consequence, all claims of error in

Massachusetts convictions must be fairly presented to the Supreme
Judicial Court, in this case through an appeal for further
10

appellate review, in order to be exhausted under AEDPA.

See Fusi

v. O’Brien, 621 F.3d 1, 6 (1st Cir. 2010).
Additionally, AEDPA demands total exhaustion of all claims
raised in a habeas petition.
154 (2007) (per curiam).

Burton v. Stewart, 549 U.S. 147,

When a petitioner exhausts some of his

claims and fails to exhaust others, a district court generally
should dismiss the “mixed” petition.

Id.

Thus, absent limited

circumstances not present here,3 a petitioner with a “mixed”
petition faces the choice of (1) dismissing the unexhausted
claims, proceeding only with the exhausted claims, and risking
procedural default of the unexhausted claims or (2) withdrawing
the habeas petition entirely in order to exhaust all claims and
return to federal court with a second petition at a later date,
thereby risking failure to meet AEDPA’s one-year statute of
limitations.

Id. (citation omitted).

However, “[a]n application

for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”

28 U.S.C.

§ 2254(b)(2) (emphasis added).
Exilhomme raised the first and fourth claims of error in the
Appeals Court, but he did not seek further review of those claims

3

In limited circumstances, the habeas court can stay and
hold the petition in abeyance while the petitioner returns to the
state courts to exhaust all of his claims. See Rhines v. Weber,
544 U.S. 269, 278 (2005).
11

by the Supreme Judicial Court.

While there is some question

whether Exilhomme’s fourth — manifest injustice — claim is exempt
from exhaustion requirements,4 there is no question that his
first — written supplemental instructions — claim is unexhausted.
It only takes one unexhausted claim to render the entire petition
“mixed.”

However, I decline to dismiss the petition as a whole

because, “where, as here, a habeas petitioner’s unexhausted claim
is patently without merit, the AEDPA allows a federal court, in
the interests of judicial economy, to dispose of that claim once
and for all.”

See Coningford, 640 F.3d at 483.

Accordingly, I

will address, on the merits, all four of Exilhomme’s asserted
grounds for habeas relief.
A.

Ineffective Assistance of Counsel
The Supreme Court has established that “a defendant must

show both deficient performance and prejudice in order to prove

4

A petition for relief from conviction due to manifest
injustice, the fourth claim raised by Exilhomme in his habeas
petition, is a Massachusetts state-law claim not subject to
review by this court. See Simpson v. Matesanz, 175 F.3d 200, 210
(1st Cir. 1999). The federal analogue to a manifest injustice
claim is a claim for relief due to actual innocence, which is
what Exilhomme asserts for the first time in his memorandum in
support of the petition before me. The First Circuit recently
observed that “[t]here may be an exception to the exhaustion bar
for cases involving colorable claims of actual innocence.”
Coningford v. Rhode Island, 640 F.3d 478, 482 n.2 (1st Cir. 2011)
(citation omitted). Whether the claim is exempt, unexhausted, or
even properly raised is immaterial here, however, because the
unexhausted written instructions claim alone renders Exilhomme’s
petition “mixed.” In any event, as explained below, see supra
Part III.B, the actual innocence claim is without merit.
12

that he has received ineffective assistance of counsel.”

Knowles

v. Mirzayance, 129 S. Ct. 1411, 1419 (2009) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

To demonstrate deficient

performance, a petitioner must show “that counsel’s
representation fell below an objective standard of
reasonableness.”

Strickland, 466 U.S. at 687–88.

“The question

is whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.”

Harrington v.

Richter, 131 S. Ct. 770, 788 (2011) (citing Strickland, 466 U.S.
at 690)).

In reviewing counsel’s performance, a court must be

“highly deferential” and “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.”

Id. at 689.

Notably, counsel’s

“strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually
unchallengeable.”

Id. at 690.

The prejudice prong of the Strickland test presents a high
hurdle for habeas petitioners.

The Supreme Court has held that

“Strickland asks whether it is ‘reasonably likely’ the result
would have been different.”
U.S. at 696).

Id. at 792 (quoting Strickland, 466

The Court has further clarified this standard,

stating that “[t]he likelihood of a different result must be
substantial, not just conceivable” and that “the difference
13

between Strickland’s prejudice standard and a more-probable-thannot standard is slight and matters ‘only in the rarest case.’”
Id. (citing Strickland, 466 U.S. at 693).
“The clearly established federal law governing ineffective
assistance of counsel claims is the framework established in
Strickland.”

Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011)

(citation omitted).

Massachusetts applies a “functional

equivalent” to the Strickland deficiency standard, and the
Massachusetts “analogue” is Commonwealth v. Saferian, 315 N.E.2d
878 (1974).

Jewett, 634 F.3d at 75 (citations omitted).

The

Appeals Court considered Exilhomme’s ineffective assistance of
counsel claims under this standard, concluding (1) that, because
the trial court’s unobjected-to actions were not in error,
counsel could not have been ineffective in failing to object to
them; and (2) that counsel’s decision not to request a
manslaughter-by-provocation instruction was a reasonable tactical
decision.

See Exilhomme, 2007 WL 1138442, at *1–2 (relying in

part on Commonwealth v. Conceicao, 446 N.E.2d 383, 389 (Mass.
1983), which discusses the Saferian standard).

Consequently,

because the state court identified the correct standard under
Strickland, I must determine whether the state court’s
determinations were an “unreasonable application” of that
standard.

14

In undertaking this analysis, I must grant considerable
deference to a state court’s ineffective-assistance
determination.

Such deference is due “because the Strickland

standard is a general standard, [and] a state court has even more
latitude to reasonably determine that a defendant has not
satisfied that standard.”

Knowles, 129 S. Ct. at 1420 (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating
whether a rule application was unreasonable requires considering
the rule’s specificity.

The more general the rule, the more

leeway courts have in reaching outcomes in case-by-case
determinations.”)); see also Harrington, 131 S. Ct. at 788 (“The
standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” (citations omitted)).

Consequently, the inquiry on

habeas review of a state-court’s ineffective-assistance-ofcounsel determination is “not whether counsel’s actions were
reasonable[, but] whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.”
Harrington, 131 S. Ct. at 788.
1.

Failure to Object to Written Jury Instructions

Exilhomme argues that his counsel’s failure to object to the
partial written jury instructions constituted ineffective
assistance of counsel because the written charge was not an
“exact reproduction” of the oral charge and, in any event,
15

contained errors of law.5

Exilhomme relies upon Commonwealth v.

Lavalley, 574 N.E.2d 1000, 1007 n.15 (Mass. 1991), in which the
Supreme Judicial Court stated that, “[w]hile we endorse the use
of written instructions if agreed to by the parties, they should
be an exact reproduction of the judge’s oral charge.”
(citation omitted).

Id.

However, subsequent Massachusetts case law

has evolved to interpret Lavalley as not prohibiting the
submission to the jury of summary charges that are not verbatim
transcriptions of the entire oral charge.

See Walker, 861 N.E.2d

at 466 (concluding that it “d[id] not read Lavalley to create any
such proscription”).
As noted by the Appeals Court here, Exhilhomme, 2007 WL
1138442, at *1, the Supreme Judicial Court has held that “[a]
judge may provide the jury with an accurate statement of the
elements of a crime in a summary form, in writing, without the
parties’ consent.”

Guy, 803 N.E.2d at 718.

In fact, the Guy

court appears to encourage such a practice: “It is now time to
recognize that reasonable steps to assist a jury in performing
their function should be encouraged.

As long as the judge makes

it clear that the jury must find each element of the crime beyond

5

The Commonwealth argues that this claim should be dismissed
because it raises only a state law claim, which is not cognizable
on habeas review. While the underlying claim of error —
submission of incomplete, summary written instructions — does
rest on state law grounds, ineffective assistance of counsel is
arguably a federal due process claim reviewable by this court.
16

a reasonable doubt, a judge may, in the exercise of discretion,
provide a jury with an accurate statement of the elements of each
crime charged.”

Id. at 719 (quoting Commonwealth v.

DiBennedetto, 693 N.E.2d 1007, 1013 (Mass. 1998)).

This is

consistent with lower federal court case and there is nothing in
United States Supreme Court jurisprudence to the contrary.6
Applying these principles, the Massachusetts Appeals Court has
found that submission of a written charge regarding reasonable
doubt is not improper.

See Walker, 861 N.E.2d at 466.

The

Appeals Court was not unreasonable under either state or federal
law in determining that any objection by Exilhomme’s counsel to
the mode of delivering instructions would have been futile.
Exilhomme also contends that defense counsel was ineffective
in failing to object to the written instructions because those
instructions contained errors of law, and those errors were
amplified to the jury when written.

The two identified errors

mirror claims two and three of Exilhomme’s habeas petition: (a)

6

Although the Supreme Court has not addressed written or
partial jury instructions, the First Circuit has “endorsed” the
practice of submitting a written copy of the charge to the jury.
See McGonagle v. United States, 137 F. App’x 373, 376 (1st Cir.
2005) (citing United States v. Parent, 954 F.2d 23, 24 n.1 (1st
Cir. 1992)). The First Circuit has also found no error when a
trial judge used transparencies to “illustrate” his instructions,
“projecting them onto the wall opposite the jury during the
charges and sending some but not all of them into the jury room.”
United States v. Previte, 648 F.2d 73, 84 (1st Cir. 1981)
(emphasis added).
17

improper reasonable doubt charge and (b) absence of any charge on
involuntary manslaughter due to reasonable provocation or sudden
combat.

I turn in the next two sections to the substance of the

instructions.
For present purposes, despite its unexhausted and arguably
wholly state-law nature, I am satisfied that the failure to
object to the use of written instructions claim is itself without
merit and will deny habeas relief as to this ground.
2.

Failure to Object to Reasonable Doubt Instruction

That the government must prove every element of the offense
beyond a reasonable doubt is “[o]ne of the cornerstones of the
criminal trial,” and failure to apply this level of proof
violates the Due Process Clause.

United States v. Rodriguez, 162

F.3d 135, 145 (1st Cir. 1998) (citing In re Winship, 397 U.S. 358
(1970)).

“The term ‘beyond a reasonable doubt’ is one of the

most bandied, but perhaps least precisely defined phrases in
criminal law.”

Id.

The Supreme Court has held that “the

constitution does not require that any particular form of words
be used in advising the jury of the government’s burden of
proof.”
omitted).

Victor v. Nebraska, 511 U.S. 1, 5 (1995) (citation
Rather, a reasonable doubt charge, “taken as a whole,

. . . [must] correctly conve[y] the concept of reasonable doubt
to the jury.” Id. (citation and quotation marks omitted)
(alterations in original).

When considering a particular charge,
18

“[t]he proper inquiry is not whether the instruction ‘could have’
been applied in an unconstitutional manner, but whether there is
a reasonable likelihood that the jury did so apply it.”

Id. at 6

(citation omitted).
Exilhomme argues that the trial judge’s charge on reasonable
doubt failed to set out the proper standard and provided no
meaningful guidance to the jury.

Consequently, he contends, he

was convicted on less than the requisite proof.

Because the

charge was so devoid of meaning, he argues, counsel was deficient
in not objecting to the charge.
The Appeals Court examined the entirety of the charge to
determine whether it “properly explained the concept of proof
beyond a reasonable doubt.”
*2.

See Exilhomme, 2007 WL 1138442, at

In doing so, the court applied the state law functional

equivalent of the Victor analysis.

Citing to Walker, in which it

had found a similar jury charge7 by the same trial judge to be

7

The oral instruction at issue in Walker provided:
The first definition is the definition of proof beyond
a reasonable doubt. Proof beyond a reasonable doubt has
the following essential meaning: First of all, it is
proof to a high degree. Second, it is more than proof
of a probability or greater likelihood of doubt.
Further, it is more than proof of a strong probability
of guilt; however, it does not mean proof to an
absolute certainty, nor proof beyond all possible
[guilt]. The law refers to proof beyond a reasonable
doubt as proof to a moral certainty. And proof to a
moral certainty means that a juror first must
conscientiously consider all the evidence and must then
reach a resulting firm and settled belief that the
charge is true. If a juror has conscientiously
19

constitutional, the Appeals Court found “[t]here was no error,”
and that defense counsel was not ineffective for failing to
object.

Id.

Exilhomme identifies three phrases that, he argues, are so
vague that they fail to accurately describe the necessary level
of proof: “proof to a high degree,” “proof beyond that of a mere
probability,” and “proof beyond that of a greater probability.”
However, these three phrases separately considered misrepresent
the charge “taken as a whole.”8

The trial judge also explained

that reasonable doubt is “more than proof of a strong
probability” but “not . . . proof to an absolute certainty nor
proof beyond all possible doubt.”

Furthermore, the trial judge

emphasized the importance of considering all of the evidence:
. . . Proof to a moral certainty means that a juror
must conscientiously consider all the evidence and then
have a resulting firm and settled belief that the
charge is true. Let me repeat that point. Proof to a
moral certainty means that a juror must conscientiously

considered all the evidence and has not reached a firm
and settled belief of the truth of the charge, th[e]n
that juror has a reasonable doubt and must vote to
acquit. That is the definition of proof beyond a
reasonable doubt.
861 N.E.2d at 464 (quoting record) (emphasis added).
8

The pure Webster instruction that Exilhomme claims the jury
should have received contains language very similar to the three
phrases to which he objects here, Webster, 59 Mass. at 320 (“It
is not mere possible doubt. . . . [I]t is not sufficient to
establish a probability, though a strong one.”), and the charge
upheld by Walker contained essentially the same phrases, see
supra note 6.
20

consider all the evidence and have a resulting firm and
settled belief that the charge is true.
If a juror has conscientiously considered all the
evidence and hasn’t reached a firm and settled belief
in the truth of a charge, then the juror has reasonable
doubt and must vote to acquit. . . .
The written reasonable doubt charge also contained this language.
See supra note 2.
Exilhomme correctly observes that the charge was not a
coventional charge under the venerable Massachusetts case of
Commonwealth v. Webster, 59 Mass. 295 (1850).

But that does not

ipso facto render it constitutionally infirm.

In fact, the trial

judge’s language conveys the same meaning as the — albeit more
archaic — language used in Webster:
It is not mere possible doubt; because every thing
relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary doubt.
It is that state of the case, which, after the entire
comparison and consideration of all the evidence,
leaves the minds of jurors in that condition that they
cannot say they feel an abiding conviction, to a moral
certainty, of the truth of the charge. . . . For it is
not sufficient to establish a probability, though a
strong one arising from the doctrine of chances, that
the fact charged is more likely to be true than the
contrary; but the evidence must establish the truth of
the fact to a reasonable and moral certainty; a
certainty that convinces and directs the understanding,
and satisfies the reason and judgment, of those who are
bound to act conscientiously upon it.
Webster, 59 Mass. at 320 (emphases added).
Exilhomme also argues that the use of “moral certainty” when
not used in the context of a conventional Webster charge is
unconstitutional.

The Supreme Court and First Circuit have
21

frowned upon use of the term “moral certainty.”

See Victor, 511

U.S. at 16; Gilday v. Callahan, 59 F.3d 257, 262–63 (1st Cir.
1995); Smith v. Butler, 696 F. Supp. 748, 753 (D. Mass. 1988) (“A
clear and unavoidable conflict exists between federal and state
courts in Massachusetts over the term ‘moral certainty’ in
defining reasonable doubt.”).

However, the Supreme Court held in

Victor that, in context, the jury would not have understood the
phrase “moral certainty” “either as suggesting a standard of
proof lower than due process requires or as allowing conviction
on factors other than the government’s proof.”

511 U.S. at 16.

In the wake of Victor, the Webster charge and “its modern
analogues” remain commonly used in Massachusetts state courts.
Walker, 861 N.E.2d at 463.
When placed in its proper context, use of “moral certainty”
language is not necessarily unreasonable under United States
Supreme Court case law.

When “the rest of the instruction . . .

lends context to the phrase” and emphasizes that the jurors must
weigh the evidence in the case, it accurately conveys the meaning
of reasonable doubt.

Victor, 511 U.S. at 16; see also Williams

v. Matesanz, 230 F.3d 421, 427 (1st Cir. 2000), overruled on
other grounds sub nom. McCambridge v. Hall, 303 F.3d 24 (1st Cir.
2002) (en banc) (“The lesson of these cases is that context is
all-important and that careful scrutiny must be afforded to the
setting in which ‘moral certainty’ references appear.”).
22

For example, in Victor, the Supreme Court considered a
charge similar to the Webster charge and held it constitutional
because it emphasized proof based on the evidence.

Victor, 511

U.S. at 16 (pointing to language in the charge describing
reasonable doubt as “that state of the case which, after the
entire comparison and consideration of all the evidence, leaves
the minds of the jurors in that condition that they cannot say
they feel an abiding conviction, to a moral certainty, of the
truth of the charge”).

The Supreme Court had earlier found an

instruction contrasting “moral certainty” only with “a grave
uncertainty” or “an actual substantial doubt” to be
unconstitutional, see Cage v. Louisiana, 498 U.S. 39, 40 (1990)
(per curiam), and specifically rejected the charge in Cage
because it was based on “grave” and “substantial” certainty
“rather than [on] evidentiary certainty.”

Id. at 40—41.

Exercising my limited role in reviewing state court
instructions, Victor, 511 U.S. at 17, it is evident that the
trial judge here emphasized the weight of the evidence, repeating
the following phrase three times in his oral charge and twice in
the written charge: “Proof to a moral certainty means that a
juror must conscientiously consider all the evidence and then
have a resulting firm and settled belief that the charge is
true.”

This construction conveys the same meaning as the

language in Webster, albeit in an “unorthodox” manner.

23

Exilhomme, 2007 WL 1138442, at *2.

The trial judge’s repetition

of the phrase properly emphasized the significance of evidentiary
certainty.

See Gilday, 59 F.3d at 263 (“It also is significant

in evaluating the effect of the term ‘moral certainty’ that the
jury was told more than once that its decision must be based on
the evidence presented.” (citation omitted)).
Consequently, “there is no reasonable likelihood that the
jury would have understood moral certainty to be disassociated
from the evidence in the case.”

Victor, 511 U.S. at 17.

As the

Appeals Court observed, the charge taken as a whole “was a
correct statement of the law and did not conflict with or
contradict the Webster language.”
*2 n.2.

Exilhomme, 2007 WL 1138442, at

Failure to object to a proper — though uniquely worded —

reasonable doubt charge does not demonstrate deficient
representation and, therefore, the Appeals Court was not itself
unreasonable in determining that Exilhomme did not receive
ineffective assistance of counsel.

I will deny Exilhomme’s

petition for habeas corpus based on the reasonable doubt claim.
3.

Failure to Request Voluntary Manslaughter Instruction

Exilhomme next seeks habeas relief on the ground that he
received ineffective assistance of counsel because his attorney
failed to request an instruction on involuntary manslaughter
based on reasonable provocation or sudden combat.

The Appeals

Court found that the failure to object did not constitute
24

ineffective assistance of counsel because the evidence did not
support such a charge and counsel’s tactical decision to pursue
only a self-defense theory of acquittal was not unreasonable.
Exilhomme, 2007 WL 1138442, at *2.

This conclusion is not

contrary to or an unreasonable application of Strickland.
As the Commonwealth observes, there is no clearly
established right to an instruction on a lesser included offense
in a noncapital case.9

See Paulding v. Allen, 393 F.3d 280, 283

9

In Beck v. Alabama, 447 U.S. 625, 637 (1980), the Supreme
Court held that “if the unavailability of a lesser included
offense instruction enhances the risk of an unwarranted
conviction, [a state] is constitutionally prohibited from
withdrawing that option from the jury in a capital case.”
However, the Beck Court expressly declined to extend this
constitutional requirement to noncapital cases. Id. at 639 n.14.
More recently, the Supreme Court has held that a habeas
petitioner was not entitled to relief for a Beck claim in the
context of the penalty phase of a capital case because no
“clearly established Federal law” extended Beck to that context,
Smith v. Spisak, 130 S. Ct. 676, 684 (2010) (citing 28 U.S.C.
§ 2254(d)(1)), and observed that a state court’s interpretation
of Beck as “inapplicable where the jury has the additional option
of life imprisonment” is “a conclusion that finds some support in
our cases,” Howell v. Mississippi, 543 U.S. 440, 445–46 (2005)
(per curiam).
A majority of lower federal courts — deciding the question
before Spisak — have held that failure to give such an
instruction in noncapital cases cannot support a grant of habeas
relief. See Martinez v. Lattimore, No. CV 10-3311, 2011 WL
3419615, at *18 (C.D. Cal. Aug. 4, 2011) (collecting cases). The
First Circuit has yet to rule on the issue. Paulding v. Allen,
393 F.3d 280, 283–84 (1st Cir. 2005). Before the enactment of
AEDPA, the First Circuit recognized Beck’s applicability to
noncapital cases only in the “rare[]” case that the failure
resulted in a miscarriage of justice, see Tata v. Carver, 917
F.2d 670, 671–72 (1st Cir. 1990), but has declined to decide
whether Tata survives AEDPA, see Paulding, 393 F.3d at 283–84.
Spisak suggests that it does not. However, like the Paulding
court, I need not resolve the question in the case before me.
25

(1st Cir. 2005) (“The United States Supreme Court has held that a
capital defendant maintains a due process right to receive a
lesser included offense instruction if the evidence so warrants,
but it has explicitly reserved whether this right extends to
noncapital defendants.”).

However, the question before me here

is not whether the court erred in not giving such an instruction
but rather whether defense counsel provided ineffective
assistance of counsel by not requesting such an instruction.
While what is required in this context under federal law
remains unsettled, the law in Massachusetts is clear.
Massachusetts law recognizes a right to a reasonable provocation
instruction where that offense is supported by the evidence.
Commonwealth v. Carrion, 552 N.E.2d 558, 561 (Mass. 1990).
Consequently, defense counsel’s failure to request the
instruction, which should have been given if the evidence fairly
supported it, can arguably form the basis of a federal
ineffective assistance of counsel claim.

See Breakiron v. Horn,

642 F.3d 126 (3d Cir. 2011) (finding ineffective assistance of
counsel when counsel failed to request a theft instruction, which
was supported by the evidence, because it left jury with options
only of conviction for robbery or acquittal); Richards v.
Quarterman, 566 F.3d 553, 569–70 (5th Cir. 2009); see also Druery

See also Jimenez v. Wall, No. 08-346S, 2008 WL 4974595, at *3
(D.R.I. Nov. 21, 2008).
26

v. Thaler, — F.3d —, 2011 WL 2859877, at *4 (5th Cir. July 20,
2011) (considering ineffective assistance of counsel for failure
to request lesser included when instruction required by state law
if supported by the evidence); Redden v. Calbone, 223 F. App’x
825, 830–31 (10th Cir. 2007) (rejecting ineffective-assistanceof-counsel claim because petitioner “introduced no evidence at
trial supporting a first degree manslaughter instruction”).
Although a federal court reviewing a habeas petition “does not
exercise supervisory power over the state courts of
Massachusetts” to correct instructional errors, Smith, 696 F.
Supp. at 758, defense counsel’s failure to request an instruction
on a lesser included offense may rise to the level of
ineffectiveness established in Strickland if it in some way
deprived Exilhomme of “a meaningful opportunity to present a
complete defense,” see Crane v. Kentucky, 476 U.S. 683, 690
(1986) (citations and internal quotation marks omitted).
Thus whether defense counsel’s representation fell below
reasonable professional standards by not requesting the
instruction is a factual question here to which I must grant
considerable deference.

See Cremeans v. Wilson, No. 1:06-cv-

01092, 2007 WL 2693091, at *5 (N.D. Ohio Sept. 11, 2007)
(observing that, “assuming arguendo that such a due process claim
is viable under federal habeas,” “whether a defendant is entitled
to an instruction on a lesser included offense is a factual

27

determination, thus a habeas petitioner must rebut the state
court’s finding under the ‘clear and convincing evidence’
standard under 28 U.S.C. § 2254(e)(1)” (citations omitted)).
Neither the trial court nor the Appeals Court provided a
detailed factual determination of the question.

Instead, both

courts adopted the reasoning set out in the Commonwealth’s
respective briefs.

See Exilhomme, 2007 WL 1138442, at *2 (“We

agree both with the motion judge’s reasons and the reasons stated
in the Commonwealth’s brief, pages eighteen through thirty-one,
regarding the trial judge’s instructions on voluntary
manslaugher.”); Exilhomme, Rulings, at 5 (citing “especially the
analysis of the Commonwealth at memorandum ¶¶ 19–20” as support
for his conclusion that the theories were inconsistent because a
self defense-theory “characterizes Exilhomme as the target of an
offensive attack” and a reasonable provocation theory “would
characterize him as ‘a mutual and sudden’ combatant”).

The cited

portions of the Commonwealth’s briefs argue that the evidence
does not support a reasonable-provocation instruction.

Because

the appellate court expressly agreed with the Commonwealth’s
reasoning, I will consider this reasoning as the equivalent of
factual findings rendered by the state courts.10

10

I have previously noted my concern regarding this
shorthand practice of ruling by the state courts: “While I
recognize that the Appeals Court, like many courts, has a
demanding caseload, shorthand reference to the briefing of a
party as a grounds for decision does not encourage the appearance
28

Under Massachusetts law, “[a] killing may be rendered a
voluntary manslaughter if it is the result of ‘a sudden transport
of passion or heat of blood, upon a reasonable provocation and
without malice, or upon sudden combat.’”

Commonwealth v.

Keohane, 829 N.E.2d 1125, 1129 (Mass. 2005) (citation omitted).
Evidence is sufficient to warrant the instruction if “there is
evidence of provocation deemed adequate in law to cause the
accused to lose his self-control in the heat of passion, and if
the killing followed the provocation before sufficient time had
elapsed for the accused’s temper to cool.”
quotation marks omitted).
victim.”

Id. (citation and

“[T]he provocation must come from the

Commonwealth v. Ruiz, 817 N.E.2d 771, 781 (Mass. 2004).

Exilhomme argues that the evidence in his case supports the
charge.

He argues that he heard, over the open telephone line to

Nherisson, the victim and his friends say that they had knives
and were looking for Exilhomme.

Exilhomme states that,

“[h]earing that conversation and believing Mattine [sic]
[Nherisson] was in danger, [he] grabbed a steak knife from his
kitchen and wnet [sic] outside.”

Before he got to Nherisson, he

“encountered [the victim] running towards him with his hand in
his waistband.”

Exilhomme testified that the victim was a large

of independent judgment fundamental to a court’s legitimacy.
Nevertheless, this expedient does constitute a judgment by the
state court on the merits of the issue.” Jones v. Pepe, No. 0710032, 2011 WL 2971956, at *8 n.8 (D. Mass. July 20, 2011).
29

man who was running at him and he could not get away, so he swung
the knife at him.

Exilhomme also maintains that the instruction

was consistent with defense counsel’s trial strategy and theory
of self defense.

In doing so, he relies on defense counsel’s

closing argument, in which he told the jury that, when the victim
ran at Exilhomme, his “blood is going through his veins and his
arteries a mile a minute.

The adrenalin is starting to pump.

He

tells you, I had to get those people away from my house, away
from my mother, away from my sister.”

This, Exilhomme contends,

justified the alternative voluntary manslaughter instruction.
However, even by Exilhomme’s own account of the incident,
there is no evidence to support a charge on either reasonable
provocation or sudden combat.

To support a reasonable

provocation instruction, “[t]here must be evidence that would
warrant a reasonable doubt that something happened [i.e.,
provocation] which would have been likely to produce in an
ordinary person such a state of passion, anger, fear, fright, or
nervous excitement as would eclipse his capacity for reflection
or restraint, and that what happened actually did produce such a
state of mind in the defendant.”

Commonwealth v. Little, 730

N.E.2d 304, 308 (Mass. 2000) (citations and quotation marks
omitted) (alterations in original).
immediately precede the killing.

Any provocation must

See Commonwealth v. Amaral, 450

N.E.2d 142, 145 (Mass. 1983) (“We consider only whether the

30

incidents immediately preceding the killing constituted
reasonable provocation.

Any history of prior hostilities between

the victim and the defendant can only be viewed as a cause of the
incidents preceding the killing and not as an element of the
provocation.”).
Even if the overheard conversation were sufficiently
provocative to overwhelm Exilhomme, there was a sufficient
cooling off period between when Exilhomme overheard the victim
and his friends at Nherisson’s and when he encountered the victim
after arming himself and leaving his apartment.

See Commonwealth

v. McLeod, 477 N.E.2d 972, 981 (Mass. 1985) (observing that
fifteen to thirty minutes is “significantly longer cooling off
period than is usually the situation in manslaughter cases).
Exilhomme was not caught unaware; he purposely prepared himself
for confrontation, and sought to confront the victim rather than
to seek refuge.

As a consequence, he has not rebutted the

Appeals Court’s factual finding by clear and convincing evidence.
I must defer to the state court determination that the evidence
does not support the reasonable-provocation instruction.

Estelle

v. McGuire, 502 U.S. 62, 67–68 (1991) (Rehnquist, C.J.) (“[I]t is
not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.

In conducting

habeas review, a federal court is limited to deciding whether a

31

conviction violated the Constitution, laws, or treaties of the
United States.” (citations omitted)).
Furthermore, the evidence here does not support an
instruction based on sudden combat.

According to the Supreme

Judicial Court, “[g]enerally, for sudden combat to be the basis
of a voluntary manslaughter instruction, the ‘victim . . . must
attack the defendant or at least strike a blow against the
defendant.’” Commonwealth v. Espada, 880 N.E.2d 795, 805 (Mass.
2008) (quoting Commonwealth v. Pasteur, 850 N.E.2d 1118, 1129
(Mass. App. Ct. 2006)).

Exilhomme ran toward the victim and,

according to an eye witness account, initiated physical
aggression by pushing him.

Furthermore, Exilhomme himself

testified at trial that he struck the victim before being struck:
“He was running to me with his hands over his waist.
knife at him.”

I swing the

Moreover, the combat was not sudden because

Exilhomme knew that the victim and his friends were looking for
him and, even if he did immediately leave his apartment, any
anticipated attack by the victim and his friends was just that:
anticipated, not sudden.
Exilhomme points to Commonwealth v. Acevedo, 845 N.E.2d 274
(Mass. 2006), to support of his claim.

Acevedo reversed a

Massachusetts Appeals Court decision that had upheld a trial
judge’s failure to give an instruction on manslaughter by
reasonable provocation or sudden combat sua sponte on the basis

32

that defense counsel’s failure to request the instruction did not
constitute ineffective assistance of counsel because the “‘allor-nothing’ strategy” of arguing only self defense was a
reasonable tactical decision.

Id. at 285.

The Supreme Judicial

Court in Acevedo concluded that where the evidence supported
manslaughter on both self-defense and reasonable-provocation
theories, to instruct only on self defense “deprived the
defendant of a substantial available defense.”

Id.

The court

also observed that the jury question asking whether “any
mitigating factors other than excessive force in self-defense
could eliminate malice” suggested the jury would have been
receptive to the alternative manslaughter theory.

Id. at 286–88.

Unlike in Acevedo, the evidence here does not support the
alternative manslaughter instruction.

In any event, the Appeals

Court’s determination here that the trial strategy was not
unreasonable is entitled to due deference and more specifically
my writ does not run to review of the state Appeals Court’s
interpretation of Massachusetts law as to which the Supreme
Judicial Court declined to extend further appellate review.
Estelle, 502 U.S. at 67–68.

Accordingly, I will dismiss

Exilhomme’s request for habeas relief on the manslaughter
instruction ground.
B.

Miscarriage of Justice/Actual Innocence
In his fourth claim, Exilhomme argues that he is entitled to
33

habeas relief on the grounds of “manifest injustice” because he
is innocent by way of self defense.

However, as Exilhomme

recognizes in his briefing, “manifest injustice” is a
Massachusetts state-law construct with a less demanding standard
than the federal “actual innocence” standard.

See Marshall v.

Massachusetts, No. 99-10478, 2002 WL 226151, at *3 (D. Mass. Jan.
28, 2002) (“The Massachusetts ‘miscarriage of justice’ standard
is determined under state law and does not address actual
innocence in habeas cases.”).

Thus, insofar as it is a claim

based on state law, which is how the Appeals Court addressed it,
it is not reviewable by this court under AEDPA.

See Estelle, 502

U.S. at 67–68.
Insofar as Exilhomme seeks to assert a federal claim of
actual innocence, he fails to meet its exacting standard.11

11

He

The Appeals Court did not address this claim directly,
under either the state or federal standard. See Exilhomme, 2007
WL 1138422, at *1–2. It is far from certain whether such a
federal claim is even viable, especially in non-capital cases.
The Supreme Court has yet to rule explicitly on the issue and has
expressed reluctance to do so. See Dist. Attorney’s Office for
Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2321 (2009)
(“Whether such a federal right exists is an open question. We
have struggled with it over the years, in some cases assuming,
arguendo, that it exists while also noting the difficult
questions such a right would pose and the high standard any
claimant would have to meet.” (citations omitted)); Herrera v.
Collins, 506 U.S. 390, 417 (1993) (“We may assume, for the sake
of argument in deciding this case, that in a capital case a truly
persuasive demonstration of “actual innocence” made after trial
would render the execution of a defendant unconstitutional, and
warrant federal habeas relief if there were no state avenue open
to process such a claim.”).
34

“has not made out a predicate showing of ‘actual innocence,’ if
the phrase is taken to mean that no jury would likely convict
[him] based on the currently known evidence.”

David v. Hall, 318

F.3d 343, 347–48 (1st Cir. 2003) (citation omitted); see also
Schlup v. Delo, 513 U.S. 298, 327 (1995) (establishing the
“actual innocence” standard in the context of overcoming
procedural default as “more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable
doubt”).

Accordingly, I will deny his petition for habeas relief

on the ground of actual innocence.
IV. CONCLUSION
For the reasons set forth more fully above, Exilhomme’s
amended habeas corpus petition (Doc. No. 11) is DENIED.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

35