Figureroa v. St. Amand

Filing 26

Judge Denise J. Casper: Memorandum and Order entered granting 24 Report and Recommendations. Figueroa's objections to the report and recommendation of Magistrate Judge Bowler are overruled and the report and recommendation is accepted by the Court. Accordingly, Figueroa's petition for habeas is DISMISSED (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
SEVERO FIGUEROA,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 09-10943-DJC
)
PETER ST. AMAND,
)
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Respondent.
)
__________________________________________)

MEMORANDUM & ORDER
CASPER, J.
I.

June 26, 2012
Introduction

Petitioner Severo Figueroa (“Figueroa), an inmate at the Cedar Junction Massachusetts
Correctional Institute (“Cedar Junction”), filed this writ of habeas corpus against the Respondent
Peter St. Amand (“St. Amand”), the Superintendent of Cedar Junction. In support of his petition,
Figueroa challenges his 2003 conviction for first degree murder on the grounds that the admission
of the grand jury testimony of a witness, Javier Laboy (“Laboy”) who testified at trial, but could not
remember his grand jury testimony inculpating Figueroa,1 violated his right of confrontation under

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Before a grand jury, Laboy testified that Figueroa told him on the night of the murder,
“[g]ive me a ride out of town, I just shot somebody.” Report and Recommendation [“R&R”], D.
24, at 3-4. Less than a year later, before trial, Laboy recanted his entire testimony stating that he
was impaired by drugs on the night of the murder and gave someone else a ride. Commonwealth
v. Figueroa, 451 Mass. 566, 573-74 (2008). During pre-trial voir dire, Laboy claimed that he
was unable to recall if Figueroa said that he shot someone. Id. He invoked his Fifth
Amendment right to remain silent and the judge granted him immunity. Id. at /573. Upon
further questioning, Laboy remembered many details of the evening of the murder, but claimed
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the Sixth Amendment; he received ineffective assistance of counsel since his trial counsel failed to
move to revoke the order of immunity for that witness or otherwise object to his testimony when the
trial court found that he was lying, all in violation of the Sixth Amendment; and the trial court’s
failure to inquire of the jury venire about the presumption of innocence violated his constitutional
right to a fair trial. D. 1 at ¶ 12. St. Amand filed an answer (and then a supplemental answer) to the
petition and a memorandum of law opposing the petition. D. 7, 15, 20. Figueroa filed a
memorandum of law in support of the petition. D. 16. The matter having been fully briefed, the
Court (Gorton, J.) referred the case to Magistrate Judge Bowler for report and recommendation. D.
21. This case was later transferred to this session (Casper, J.). D. 22. On November 8, 2011,
Magistrate Judge Bowler issued her report and recommendation recommending that the petition for
habeas corpus be dismissed.

D. 24.

Figueroa has filed objections to the Report and

Recommendation. D. 25.
II.

Discussion

A district court judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This Court, pursuant to

that he could not recall his grand jury testimony about Figueroa asking him for a ride out of town
and admitting that he just shot someone. Id. at 573-74. The government moved to admit his
grand jury testimony as substantive evidence and Figueroa objected on the grounds that the
admission would violate his Sixth Amendment right to confront witnesses. Id. at 574. The trial
court overruled the objection and allowed the government to introduce the grand jury testimony
as substantive evidence at trial. Id. As part of the findings in support of this ruling, the trial
court held that Laboy’s “claimed lack of memory has been fabricated.” R&R at 5. Laboy
testified at trial, but continued to disavow any memory of the statement incriminating Figueroa
and the Court allowed the government to introduce his prior grand jury testimony as substantive
evidence. Figueroa, 451 Mass. at 574-75. After the introduction of the grand jury testimony at
trial, Laboy was asked what he recalled of that testimony. Id. “He stated that he recalled only
some parts of it, but it did not include the defendant’s incriminating statements.” Id. at 575.
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28 U.S.C. § 636(b)(1), must make “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which the parties have objected.” Id.; see Fed.
R. Civ. P. 72(b)(3). Accordingly, the Court, pursuant to 28 U.S.C. § 636(b)(1), has made a de novo
determination of the specified proposed findings and recommendations to which Figueroa has
objected and now addresses those objections. Figueroa raises three objections to the Report and
Recommendation. First, he argues that the Report and Recommendation incorrectly ruled that the
admission of Laboy’s grand jury testimony did not rule afoul of his Sixth Amendment confrontation
right and Crawford v. Washington, 541 U.S. 36 (2004) and its progeny. D. 25 at pp. 1-8. Second,
he contests the recommended ruling that his Sixth Amendment right to counsel was not violated
when his trial counsel failed to move to object to Laboy’s trial testimony under a grant of immunity.
D. 25 [Petitioner’s Objections] at pp. 8-10. Third, Figueroa objects to the magistrate judge’s
conclusion that the factual record belies any evidence of his actual innocence. D. 25 at pp. 10-11.
The Court shall address each of these objections in turn although the Court notes that Figueroa’s
objections reiterate arguments addressed and considered by Magistrate Judge Bowler (Compare D.
25 with R&R at 12-22; 26-27).
First, Figueroa argues that the Report and Recommendation erred in its conclusion that the
admission of Laboy’s grand jury testimony as substantive evidence at trial did not run afoul of his
Sixth Amendment right to confront witnesses since, although Laboy testified at trial, he was
effectively unavailable to be cross-examined. The magistrate judge concluded that “[t]he testimony
Laboy gave at trial did not render his unavailable to be cross-examined.” R&R at 13-14 (discussing
Crawford, 541 U.S. at 61; Delaware v. Fensterer, 474 U.S. 15 (1985)). This Court agrees that
Laboy’s lack of memory (or lack of candor as to his lack of memory as the trial court found) did not

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render him “unavailable” for Sixth Amendment confrontation purposes for the reasons that the
magistrate judge articulated in the R&R, particularly in her discussion of United States v. Owens,
484 U.S. 554, 562 (1988). This interpretation and application of Owens has been followed courts
in this Circuit and by other Circuits in considering Confrontation Clause claims. See United States
v. Ghilarducci, 480 F.3d 542, 548-50 (7th Cir. 2007); see also Beltran v. Runnels, 409 Fed. Appx.
997 (9th Cir. 2011) (unpublished). For one example, in Gorman v. Merrill, No. 05-129-B-W, 2006
WL 3537167 (D. Me. Dec. 7, 2006), the court addressed a claimed violation of the petitioner’s
constitutional right to confront witnesses where his mother had testified before a grand jury that he
had admitted killing the victim to her, but at trial could not recall this statement and the state was
allowed to admit her grand jury testimony as substantive evidence despite her trial testimony that
she had a “history of delusional behavior,” was on psychiatric medications at the time of her phone
conversation with her son and given the nature of her “tumultuous relationship with her son” had
a pattern of saying hurtful things about him. Id. at *2-3. In consideration of the petitioner’s § 2254
habeas petition, the district court rejected the argument that his mother “was effectively unavailable
for cross-examination.” Id. at *3. Citing the Supreme Court’s holdings in Crawford, 541 U.S. 60
n. 9 and California v. Green, 399 U.S. 149, 157 (1970) (ruling that the admission of the witness’
prior testimony at a hearing did not violate the confrontation clause of the Sixth Amendment, even
where witness’ lack of memory of such testimony seemed disingenuous, when the defendant had
the opportunity to cross examine the witness at trial), the court ruled that “the Confrontation Clause
was satisfied when [the petitioner] was given the opportunity to examine and cross-examine his
mother before the jury regarding what she did and did not recall and the reasons for her failure of
recollection. There was no Confrontation Clause violation in admission of the mother’s grand jury

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testimony.” Id. at *6. The same was true here.
In this case, at trial “Laboy did not deny his testimony to the grand jury. . . . [h]e recalled
events to which the statement related, . . . . Laboy also did not refuse to answer questions defense
counsel posed to him, . . . nor was there any limitation placed on the cross-examination. Figueroa,
451 Mass. at 577.

Accordingly, there was no violation of Figueroa’s Sixth Amendment

confrontation right when the trial court admitted Laboy’s grand jury testimony and he was subject
to cross-examination at trial.
Second, as to Figueroa’s argument that his trial counsel was ineffective when he failed to
move to revoke Laboy’s grant of immunity or object to his testimony under a grant of such
immunity, this Court agrees that any failure to do so did not constitute deficient performance. It is
well settled that Figueroa would not have had standing to dispute the grant of immunity to Laboy.
Figueroa, 451 Mass. at 578 and cases cited. As the Supreme Judicial Court has explained: “[t]his
rule is supported by sound reasons. The privilege against self-incrimination is a personal right of
the witness, and one that the witness is in a position to protect by his own means. . . . Moreover, the
statutory procedure for a grant of immunity [under Mass. Gen. L. C. 233, § 20E] is designed to
accommodate the witness’s rights and the State’s need for evidence. The statute is simply not
addressed to the interests of defendants.” Smith v. Commonwealth, 386 Mass. 345, 349 (1982)
(internal citations omitted). Accordingly, the Court cannot conclude that trial’s counsel failure to
challenge the grant of immunity to Laboy, or his immunized trial testimony, constituted deficient
performance and, therefore, need not reach the second prong of the Strickland v. Washington, 466
U.S. 668 (1984) test regarding whether such deficient performance prejudiced the defense.
Third, to overcome the procedural default as to his third claim–that the trial court failed to

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inquire of the jury venire as to the presumption of innocence to which he did not object–Figueroa
takes issue with the magistrate judge’s factual finding that “the record completely belies the
presence of actual innocence.” R&R at 27. In support of this objection, Figueroa points to
inconsistencies between the trial testimony of a eyewitness, Miguel Rodriguez, who was with the
victim when he was shot, and his prior statement to police on the night of the shooting, particularly
given the lack of physical evidence corroborating that testimony. D. 24 (Pet. Objs.) at 10-11;
Figueroa, 451 Mass. at 567-68 (summarizing Rodriguez’s testimony). However, the “assertion of
actual innocence to excuse a procedural default does not permit a reviewing court to simply dive into
defaulted questions of the sufficiency of evidence.” Awon v. United States, 308 F.3d 133, 143 (1st
Cir. 2002). This exception for claims otherwise waived or forfeited “is quite narrow and seldom
used” and “is reserved for the extraordinary cases of ‘fundamentally unjust incarceration.’” Id.
(citation omitted). Upon de novo review, this Court cannot say that this is such an extraordinary
case and agrees with the findings and conclusions in the Report and Recommendation regarding this
matter.
III.

Conclusion

For the foregoing reasons, Figueroa’s objections to the report and recommendation of
Magistrate Judge Bowler are overruled and the report and recommendation is accepted by the Court.
Accordingly, Figueroa’s petition for habeas is DISMISSED.

So ordered.
/s/ Denise J. Casper
United States District Judge

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