Brown v. Roden

Filing 25

Judge Richard G. Stearns: ORDER entered granting 11 Motion to Dismiss; adopting Report and Recommendations re 24 Report and Recommendations. Further, any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. section 2253 is DENIED, as the court sees no meritorious or substantial basis for an appeal. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 12-12000-RGS
MICHAEL BROWN,
Petitioner
v.
GARY RODEN,
Respondent
MEMORANDUM AND ORDER
ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE

February 11, 2014
STEARNS, D.J.
I agree with Magistrate Judge Sorokin’s Report and his determination that there
is no merit to petitioner’s claims of ineffective assistance of counsel, alleged perjury
by the victim of the crime, and abuse of discretion by the trial judge in refusing to give
a missing witness instruction or to hold an evidentiary hearing on petitioner’s motion
for a new trial. Specifically: (1) petitioner’s claims of ineffective assistance of
counsel do not survive the “doubly deferential” standard of federal habeas review, see
Yarborough v. Gentry, 540 U.S. 1, 6 (2003); (2) there is no articulated basis on which
to question the presumption of correctness accorded to the Massachusetts Appeals

Court’s rejection of petitioner’s arguments regarding the credibility of the
complaining witness, see 28 U.S.C. § 2254(e)(1); (3) there is no merit to the
suggestion that petitioner should have received the benefit of a “missing witness”
instruction when it was his own witness who failed to appear, see Commonwealth v.
Schatvet, 23 Mass. App. Ct. 130, 134 (1986);1 (4) and the denial by a state court of an
evidentiary hearing is not a matter cognizable on federal habeas review, see
Coningford v. Rhode Island, 640 F.3d 478, 484 n.4 (1st Cir. 2011). Consequently,
his Recommendation is ADOPTED and the petition is DISMISSED with prejudice.2
See McFarland v. Scott, 512 U.S. 849, 856 (1994) (habeas petition may be dismissed
if it appears to be legally insufficient on its face). Any request for the issuance of a
Certificate of Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing

1

A second witness who the Commonwealth chose not to call, the Appeals Court
found would have offered no evidence of “distinct importance.” Commonwealth v.
Brown, 2012 WL 3052904, at *3 (July 27, 2012).
2

As Magistrate Judge Sorokin noted, one of the effective assistance of counsel
claims presented in the petition – that counsel was ineffective for failing to object to
the prosecutor’s purported “vouching” for the credibility of the Commonwealth’s
witnesses in the summation to the jury appears not to have been presented by
petitioner to the State Court for review, and is therefore unexhausted. The Magistrate
Judge recommended that petitioner be permitted to voluntarily dismiss this claim, or
if no dismissal was forthcoming, that the petition be deemed mixed and dismissed
without a stay. See Rhines v. Weber, 544 U.S. 269, 277 (2005). As petitioner has
failed to lodge an election or any objection to the Report by the date when such were
due the court will adopt the second proposed course and dismiss the petition in its
entirety. Cf. Coningford, 640 F.3d at 483.
2

no meritorious or substantial basis for an appeal. The Clerk is instructed to forward
a copy of this decision to petitioner and to close the case.
SO ORDERED.
/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE

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