Scanzillo v. O'Brien et al

Filing 26

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered, denying petition for habeas corpus. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARK SCANZILLO,

)
)
Petitioner,
)
)
v.
)
)
JOHN J. O’BRIEN, Commissioner )
of Probation, and HAROLD W.
)
CLARKE, Commissioner of the
)
Department of Corrections,
)
)
Respondents.
)
)

CIVIL ACTION NO.
09-11220-DPW

MEMORANDUM AND ORDER
May 21, 2012
After unsuccessfully appealing his three Massachusetts
convictions on two rape charges and one charge of indecent
assault and battery on a person fourteen or older, petitioner
Mark Scanzillo now seeks a federal writ of habeas corpus.

As

grounds for federal relief, Scanzillo contends he received
ineffective assistance of counsel because of trial counsel’s
failure (A) to pursue medical and psychological records of the
victim under the state’s Bishop-Fuller protocol, and (B) to
present evidence of petitioner’s good character.

Concluding that

Scanzillo is not entitled to relief in this court, I will deny
his petition.
I.

BACKGROUND

On November 6, 2000, Scanzillo was indicted for three counts
of indecent assault and battery on a person fourteen years of age

or over, and two counts of rape, stemming from an incident on
January 4, 2000, involving his childrens’ nineteen year old
babysitter.
The Massachusetts Appeals Court summarized the state court
proceedings as follows:
Before trial, [petitioner] filed a motion seeking
medical and psychiatric records pursuant to
Commonwealth v. Bishop, 416 Mass. 169 (1993), and
Commonwealth v. Fuller, 423 Mass. 216 (1996)
(Bishop-Fuller). The motion was accompanied by an
offer of proof and was further supported by an
affidavit from a forensic psychologist who had been
retained as an expert by [petitioner].[1] [Petitioner’s]
counsel filed the Bishop-Fuller motion on two grounds:
first, the discovery might contain exculpatory evidence
in the form of inconsistent statements by the victim;
and second, there “may have been medical sequelae that
would impact on [the victim’s] credibility.” After
conducting a hearing, a Superior Court judge allowed
the motion, with a “Stage 1 Bishop hearing [to be
scheduled] to determine privilege.”
Rather than pursue this discovery, however, trial
counsel-after consultation with his client-considered
that “it was more important to obtain an earlier trial
date, jury waived, than could have been achieved if we
waited for the Bishop motion to be resolved in all of
the various stages.” Trial counsel, an experienced
member of the bar, called this decision “tactical.”
According to [petitioner’s] wife, who was present at

1

Footnote 3 to the Appeals Court opinion noted that “[I]n his
affidavit, the expert opined that bulimia (from which the victim
suffered) and its co-morbid disorders can include ‘depression,
dysphoria, suicidal behaviors, dissassociative [sic] experiences,
excessive emotional lability, cognitive distortions and
irrational beliefs as well as anxiety disorders and personality
disorders.’ As such, the expert stated that consequently
discovery of the victim’s medical and psychiatric records would
help him determine ‘what impact her illness has on her cognitive
abilities, including, but not limited to: recall, testimonial
faculties, as well as emotional manifestations or issues such as
fabrication, prevarication, false accusations, etc.’”
2

the time, trial counsel explained to [petitioner] that
Bishop-Fuller “motions rarely yield useful information
and require[ ] a lot of time because they [a]re decided
in stages. He urged us to seek a quick trial rather
than to pursue this motion.” At this point, a
particular judge was to be in the session in which the
case was to be tried.
A three-day bench trial took place after the trial
judge had conducted an extensive, detailed jury waiver
colloquy. At trial, the defense did not deny a sexual
encounter between [petitioner] and the victim (who was
the nineteen year old babysitter of the defendant’s
children), but claimed that it had been consensual.
The defense presented the case as a contest of
credibility between the victim and [petitioner] over
whether the encounter had or had not been consensual.
The trial judge found [petitioner] guilty on the two
rape indictments and one indictment of indecent assault
and battery.
After having retained new counsel, [petitioner]
moved for a new trial and for postconviction relief,
including the discovery that had not earlier been
pursued pursuant to the Bishop-Fuller motion. The
motion judge, who had been the trial judge, granted the
discovery sought and, further, on subsequent motions,
allowed additional discovery and permitted
[petitioner’s] new expert to examine the medical and
psychiatric records obtained. After considering the
materials so obtained (a process defense counsel
urged), the judge denied the motion for a new trial.
Commonwealth v. Scanzillo, 885 N.E.2d 174 (Table), 2008 WL
1901420, at *1 (Mass. App. Ct. May 1, 2008).
Scanzillo appealed the trial judge’s denial of his motion
for a new trial, as well as his conviction, to the Massachusetts
Appeals Court.
denied.

Id.

Scanzillo’s two appeals were consolidated and
Scanzillo applied for leave to obtain further

appellate review to the Massachusetts Supreme Judicial Court,
which was denied on July 23, 2008.
891 N.E.2d 238 (Table) (Mass. 2008).
3

Commonwealth v. Scanzillo,

Having exhausted his state court remedies, Scanzillo filed
this timely petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

Scanzillo’s original petition contained three

claims, one of which was unexhausted.

After the Respondents

moved to dismiss the action for failure to exhaust, Scanzillo
agreed to proceed with only his two unexhausted claims.
Consequently, this Memorandum and Order addresses only
Scanzillo’s claim that he received ineffective assistance of
counsel at trial.
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
established Federal law, as determined by the Supreme Court of
the United States.”

28 U.S.C. § 2254(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

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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
“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).
Courts look to the last reasoned state court decision in
determining a petitioner’s eligibility for federal habeas relief.
Malone v. Clarke, 536 F.3d 54, 63 (1st Cir. 2008) (citation
omitted).

In this case, the last reasoned decision was the

unpublished decision of the Massachusetts Appeals Court.

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III.

DISCUSSION

Scanzillo claims that he received ineffective assistance of
counsel because his trial counsel failed to pursue medical and
psychological records of the victim for exculpatory purposes and
failed to present evidence of Scanzillo’s good character.
When engaged to determine whether counsel’s performance was
effective under the Sixth Amendment, a court must ask “whether
counsel has brought ‘to bear such skill and knowledge as will
render the trial a reliable adversarial testing process.’”
Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)).
The inquiry has two prongs:

performance and prejudice.

In

order to succeed on his claim, Scanzillo must show both that his
counsel’s performance fell below an objective standard of
reasonableness and, but for counsel’s errors, there is a
reasonable probability that the result of the proceeding would
have been different.

Strickland, 466 U.S. at 668.

The court

must review the performance “not in hindsight, but based on what
the lawyer knew, or should have known, at the time his tactical
choices were made and implemented,” United States v. Natanel, 938
F.2d 302, 309 (1st Cir. 1991), “in light of the whole record,
including the facts of the case, the trial transcript, the
exhibits, and the applicable substantive law.”
at 15.

Scarpa, 38 F.3d

There is a “strong presumption” that counsel’s
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performance was not deficient.

Kimmelman v. Morrison, 477 U.S.

365, 381 (1986).
A state court’s ineffective-assistance determination is due
great deference “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 v. Mirzayance, 129 S. Ct. 1411, 1420 (2009);

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 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.

In an overarching contention, Scanzillo argues that the
state court applied the wrong legal test and refused to follow
the objective test of Strickland in determining his ineffective
assistance claim.
The Massachusetts Appeals Court rejected Scanzillo’s
contention that the trial court had applied a subjective
standard.

Scanzillo, 2008 WL 1901420, at *2.

The Appeals Court

then noted that the trial judge cited Commonwealth v. Saferian,
366 Mass. 89, 96 (1974), for the standard to be applied to
Scanzillo’s claim of ineffective assistance of counsel.
7

Id. at

*3.

The Appeals Court proceeded to evaluate Scanzillo’s claim

under the same standard.

Id. at *3-4.

It is well settled that the Saferian standard is equivalent
to the Strickland standard and is sufficient for federal habeas
claims alleging ineffective assistance of counsel.

Lynch v.

Ficco, 438 F.3d 35, 48 (1st Cir. 2006) (noting that “the SJC’s
standard for ineffective assistance of counsel [in Saferian]. . .
is the functional equivalent of the Strickland standard.”).
Thus, Scanzillo’s claim that the state court applied the wrong
standard by not citing Strickland is incorrect.

The state

court’s decision in this regard was not an unreasonable
application of the proper standard.
A.

The Bishop-Fuller Claim

As to the claim of ineffectiveness for failure to pursue
Bishop-Fuller evidence, trial counsel explained that his decision
to forgo that evidence was a tactical one.
1901420, at *3.

Scanzillo, 2008 WL

The Massachusetts Appeals Court reviewed trial

counsel’s tactical decision for “manifest unreasonbleness,” id.,
a standard the First Circuit has previously held “is not contrary
to the standard set forth in Strickland.”
348 F.3d 1, 13 (1st Cir. 2003).

Castillo v. Matesanz,

Because the Appeals Court

applied the appropriate legal standard to Scanzillo’s claims, he
can only succeed by demonstrating that the Appeals Court
unreasonably applied this standard to the facts of his case.
8

The Massachusetts Appeals Court found that counsel’s
decision to go to trial to get a bench trial before a particular
judge, rather than wait for the results of a Bishop-Fuller
motion, was reasonable.
to have been prudent.

That decision by trial counsel appears

The trial judge before whom Scanzillo’s

trial counsel wanted to try the case jury-waived did not convict
Scanzillo on two of the counts of indecent assault and battery on
a person fourteen years of age, sentenced him to less time than
prosecutors requested, and imposed a period of three-years of
probation though the convictions carried the possibility of life
parole.

The Massachusetts Appeals Court reasonably concluded

that this was legitimate trial strategy on counsel’s part.

See

Phoenix v. Matesanz, 233 F.3d 77, 82 & n.2 (1st Cir. 2000)
(noting that under Strickland, trial strategy does not constitute
ineffective assistance unless counsel’s decision was “so patently
unreasonable that no competent attorney would have made it”).
Furthermore, the Massachusetts Appeals Court concluded that
it was reasonable for counsel to decide to forgo the BishopFuller motion because any evidence resulting from it would have
been inadmissible under state law.

This is an independent state

law ground supporting the Appeals Court’s decision, which itself
forecloses federal habeas review.2

2

Pina v. Maloney, 565 F.3d 48,

Likewise, because the state court decided that almost all of
the Bishop-Fuller evidence would have been inadmissible,
Scanzillo would be unable to show prejudice from his counsel’s
9

52 (1st Cir. 2009); see also Estelle v. McGuire, 502 U.S. 62, 6768 (1991) (“[F]ederal habeas corpus relief does not lie for
errors of state law.”).
B.

The Good Character Evidence Claim

As to Scanzillo’s claim of ineffective assistance for
failure to introduce good character evidence, the Massachusetts
Appeals Court found that the trial judge did not abuse her
discretion in determining that such good-character evidence would
bear little weight “in a case where the defense was that the
defendant had had consensual sex with the family’s babysitter
while his wife and children slept upstairs.”
1901420, at *4.

Scanzillo, 2008 WL

Scanzillo has failed to show that the proffered

testimony of his good reputation in the community would have
raised a reasonable probability of a different verdict, as
required under Strickland’s prejudice prong.

See Horton v.

Allen, 370 F.3d 75, 87 (1st Cir. 2004) (denying habeas relief and
collecting cases in support, where the state court “reasonably
concluded that defense counsel’s failure to interview [good
character] witnesses likely would not have influenced the trial
outcome”).

tactical decision to go to trial quickly.
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IV.

CONCLUSION

For the reasons set forth above, I DENY Scanzillo’s petition
for a writ of habeas corpus.

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

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