Scott v. Gelb

Filing 40

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 31 Motion to Dismiss, after: granting 33 Motion to Amend; denying 38 Motion to Appoint Counsel and finding as moot 39 Motion for Leave to Proceed in forma pauperis in light of the receipt of the filing fee. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DARRYL SCOTT,
Petitioner,
v.
BRUCE GELB,
Respondent.

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CIVIL ACTION NO.
13-10306-DPW

MEMORANDUM AND ORDER
July 28, 2014
In this petition for a writ of habeas corpus, Darryl Scott,
a state prisoner convicted of first degree murder and related
offenses claims his trial was conducted in violation of federal
constitutional guarantees.

Finding that the state court

convictions did not involve a decision contrary to, or an
unreasonable application of, clearly established federal law, and
did not result from an unreasonable determination of the facts, I
will deny the petition.
I. BACKGROUND
A.

Facts
Factual determinations made by state courts are presumed

correct absent clear and convincing evidence to the contrary.

28

U.S.C. § 2254(e)(1); Miller–El v. Cockrell, 537 U.S. 322, 340
(2003).

This presumption applies not only to any findings made

by the trial court, but also to those recited by a state
-1-

appellate court.
2002).

Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.

I set forth the testimony and evidence at trial in the

light most favorable to the Commonwealth.
1.

The Killing

The petitioner first encountered his alleged victim, Nabil
Essaid, on December 1, 2002.

On that occasion, Mr. Essaid and

two of his friends, Ahmed Obbada and Mohemmed Ledoui, were
engaged in a confrontation (allegedly drug-related) with Andrew
and Andre Kornegay.

Seeing the confrontation escalating, the

petitioner intervened.
Mr. Obbada was the Commonwealth’s key witness to the events
surrounding the shooting which occurred two weeks later on
December 14.

On that day, as the petitioner was exiting the

movie theater on Tremont street in downtown Boston with his then
girlfriend Victoria Fernandes, he again encountered Mr. Essaid,
Mr. Obbada, and Mr. Lebdoui.

At that point, the defendant told

Ms. Fernandes to keep walking, which she did, and told the three
men to “[g]et the fuck out of here.”
walking up Tremont Street.

The three men then began

The petitioner followed, giving “the

impression of someone who is looking for a fight.”

When he was

eight to ten feet from the three other men, the petitioner pulled
out a nine millimeter Glock pistol and fired, first at Mr.
Obbada, who hid behind a car and was hit in the shoe, next at Mr.

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Lebdoui, who fled, and, lastly, at Mr. Essaid, who was hit by two
bullets and fell to the ground.
The petitioner then ran up Tremont Street towards the Park
Street station, pausing only to retrieve a Red Sox baseball cap
which flew off his head.
Ms. Fernandes also testified at trial.

She stated that as

she and the petitioner left the theater, they saw three men of
Middle Eastern descent leaning against a wall.

The men said,

"What up?" as though they knew the petitioner and were looking to
start “trouble” and then followed close behind the couple as they
walked towards the Park Street subway station.

At some point,

the petitioner told Ms. Fernandes to keep walking, which she did.
She next heard three gunshots and saw the defendant run past her
toward the subway station.

Ms. Fernandes boarded the train at

Park Street. A few stops later, the defendant joined her in the
subway car, and they then returned to his apartment.
Mr. Scott testified in his own defense.

He said that as he

and Ms. Fernandes left the theater he saw Mr. Essaid, Mr. Obbada,
and another man whom he did not recognize standing on a corner.
Mr. Essaid confronted him in a threatening manner regarding the
earlier encounter with the Kornegays.

As the men followed him up

Tremont Street, Mr. Scott became concerned and told Mr. Fernandes
to keep walking.

When he turned, the other men surrounded him at

a distance of about five feet.

As the other men approached, and

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fearing that they were reaching for weapons themselves, Mr. Scott
pulled a pistol from his waistband.

As the men closed on him,

Mr. Scott fired a warning shot and then squeezed the trigger as
he turned and ran.

He did not know at the time how many shots he

fired and only found out the next day, through news reports, that
someone had been killed.

He claimed that he fired out of concern

that the three men were attacking him or would harm Ms.
Fernandes.

He then fled to the subway where he met Ms. Fernandes

before returning home.
2.

The Petitioner’s Apprehension With The Murder Weapon

There were no leads in the shooting until nearly two months
later on February 6, 2003, when the defendant and two others (one
was Andre Kornegay) were observed by undercover Boston police
officers standing in front of a restaurant, looking up and down
the street.

Mr. Kornegay and the other man walked a slight

distance away from the restaurant and apparently engaged in a
drug transaction. The surveillance officers were directed to
arrest Mr. Kornegay and to obtain identification from the
defendant.

When officers approached the defendant, he ran

(narrowly avoiding being hit by a passing automobile) and
officers gave chase.
Several groups of officers from different divisions of the
Boston police department were ultimately involved in the chase.
Officer Thomas Rose testified that he became involved in the

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chase and attempted to tackle the defendant, but the defendant
evaded him and Officer Rose fell.

While Officer Rose was on the

ground, the defendant pulled out his gun and pointed it at Rose,
and then turned and pointed it at Officer Matthew Clark, who had
also joined in the chase.

Officer Clark pulled out his own

firearm and ordered the defendant to drop his weapon; the
defendant instead turned and ran.
At some point another officer, Steven Sweeney, saw the
defendant trying to climb over a stockade fence.

When the

defendant saw the officer, he turned, fired a shot from his
pistol (hitting nothing) and then hid himself under a tarp at
which point he was temporarily lost from the officer’s sight.
In the ensuing search, Officer Richard Kelley noticed a
baseball cap on the ground near the tarp and made a comment to
the effect that Mr. Scott has “gotta be somewhere, his hat is
right there.”

The petitioner, hearing the comment, emerged from

beneath the tarp, pressing a gun to his head and yelling, “shoot
me, shoot me, shoot me, kill me, kill me, kill me.”
As officers surrounded the defendant with weapons drawn, the
defendant said that he could not go to jail for a long time and
that he would kill himself instead. At one point, the defendant
was shouting, “kill me, shoot me, I can't go to jail.” Lieutenant
Detective Stephen Meade, commander of the Boston police drug
control unit and one of the officers who had been conducting the

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drug surveillance, testified that the defendant, who was very
agitated and upset, said “I’m not going to prison, I don’t want
to go to jail, I’m going to kill myself.”
Special operations officers were called to the scene. The
defendant continued to point the gun at his head, crying and
talking on a cellular telephone, saying that he could not serve a
long time in jail.

To defuse the situation, police told him his

sentence would not be longer than one year, because it was only a
gun possession charge.
Officer Martin O’Malley said that it was only a gun charge
and the defendant had a good chance of “beating it.”

Officer

Kelley said “You’re not going to do any time in jail” and “How
many of your friends do you know that have gone to jail for
illegal possession of a handgun? None.” The defendant replied,
“none,” but then added, “it’s been used before.”
After a stand-off between Mr. Scott and officers, Mr.
Scott’s father (with whom the petitioner had been talking via
cell phone) arrived on the scene at which point Mr. Scott dropped
his gun and was taken into custody.
A receipt for the purchase of the Glock from a pawn shop in
Arizona was retrieved from the defendant during the booking
process; the spent cartridge from the round that the defendant
had fired near the fence was also recovered. Ballistics
investigation showed that spent cartridge casings recovered from

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the area where Mr. Essaid was shot matched the defendant’s Glock
and were fired from the same weapon.
B.

Mr. Scott’s Trial
On April 13, 2003, Mr. Scott was indicted by a grand jury on

thirteen counts: four counts of assault with a dangerous weapon;
one court of murder; three counts of armed assault with intent to
murder; two counts of unlawful possession of a firearm; two
counts of unlawful possession of ammunition; and one count of
resisting arrest.
Before a jury was empaneled, the prosecution voluntarily
dismissed one of the counts of assault with a dangerous weapon.
At the close of the Commonwealth’s evidence at trial, upon motion
by the defense, the Superior Court judge dismissed one count of
assault with intent to murder and the count of resisting arrest.
Following the presentation of evidence by both sides and a
period of deliberation, the jury found Mr. Scott guilty of first
degree murder, two counts of unlawful possession of a firearm,
two counts of unlawful possession of ammunition, and one count of
assault with a dangerous weapon.

With respect to the two

remaining counts of armed assault with intent to murder, the jury
found Mr. Scott guilty of the lesser included offense of armed
assault with intent to kill.

With respect to the two remaining

counts of assault with a dangerous weapon, the jury found Mr.
Scott not guilty.

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On April 27, 2006, the Superior Court judge sentenced Mr.
Scott to life imprisonment on his conviction for murder, along
with both concurrent and consecutive sentences for his
convictions on the remaining charges.
C.

Post-Trial Proceedings
Mr. Scott filed a timely notice of appeal of his convictions

on May 4, 2006.

He also filed a motion for a new trial in the

Superior Court.

The Superior Court denied the request for a new

trial.

Mr. Scott appealed that decision as well, and the appeal

regarding the new trial was consolidated with Mr. Scott’s direct
appeal to the Massachusetts Supreme Judicial Court.
On October 22, 2012, the Supreme Judicial Court upheld Mr.
Scott’s conviction and affirmed the denial of his motion for a
new trial.

Com. v. Scott, 977 N.E.2d 490 (Mass. 2012).

Mr.

Scott filed a petition for rehearing of his claims with the
Supreme Judicial Court on November 5, 2012, which was denied on
November 28, 2012.
Having exhausted his state direct appeal remedies, Mr. Scott
filed this petition on February 15, 2013.

The Commonwealth filed

a motion to dismiss the petition on October 25, 2013.

On

November 14, 2013, Mr. Scott moved to amend his petition by
dropping one of the grounds for his request for habeas relief.1

1

The petitioner’s fifth asserted (and now dropped) ground
for relief was based upon his request to the Massachusetts
Supreme Judicial Court that it exercise its supervisory powers
under Massachusetts General Laws, Chapter 278, § 33E. As the
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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” or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”

28 U.S.C.

§ 2254(d)(1).
“[C]learly established federal law” refers only “to the
holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).

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

petitioner now correctly recognizes, this is a claim based wholly
upon state law which is not cognizable as a claim for federal
habeas relief.
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[the Supreme] Court’s cases but unreasonably applies it to the
facts of the . . . prisoner’s case.”

Id. at 407.

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.

“[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal
law erroneously or incorrectly.”

Renico v. Lett, 559 U.S. 766,

773 (2010) (quoting Williams, 529 U.S. at 411).

Rather, “that

application must be objectively unreasonable. This distinction
creates a substantially higher threshold for obtaining relief
than de novo review.”

Id. (internal citations omitted).

Under

First Circuit precedent, “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. Di Paolo, 311 F.3d 93, 98

(1st Cir. 2002) (citation and quotation marks omitted).
III. DISCUSSION
Mr. Scott presses four separate grounds as the basis for his
entitlement to habeas relief.

First, he contends that the

Commonwealth’s prosecutor engaged in misconduct during closing
arguments by describing Mr. Scott’s statements upon arrest as
“confessions” and making personal attacks on defense counsel, and
by eliciting prejudicial information about Mr. Scott’s juvenile
record during his cross-examination.
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Second, Mr. Scott contends

that the trial judge committed error by allowing the prosecutor’s
peremptory challenge of an African-American juror after the
prosecutor had challenged previous jurors of color.

Third, Mr.

Scott contends that he was deprived of effective assistance of
counsel by virtue of his attorney’s failure to move to suppress
certain statements made to police and by the failure to seek a
mistrial after information about Mr. Scott’s juvenile record was
revealed during cross-examination.

Fourth, Mr. Scott contends

the trial judge committed error by refusing to give the jury an
instruction regarding the defense of another.
A.

Prosecutorial Misconduct
Mr. Scott contends that the Commonwealth engaged in two

separate instances of prosecutorial misconduct which so infected
his proceeding with unfairness as to require habeas relief
setting aside his conviction.
1.

The Commonwealth’s Closing Argument

During closing argument, the Commonwealth’s prosecutor
described Mr. Scott’s counsel as a “Monday Morning Quarterback”
and told the jury that “it is easy to sit in a law office and
pore over hundreds of pages of documents, police reports, witness
statements, crime lab reports, ballistics reports, and poke
holes, look for inconsistencies, which you know are going to be
there, to second guess and criticize.”

The prosecutor continued:

“[Mr. Scott’s counsel], for all his yelling, for all the volume
he brings to the argument, has no special knowledge here.
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He

knows no more about how to run a homicide investigation than you
do.”
Later in the closing argument, the prosecutor discussed
testimony from a police officer who told the jury that at the
time of Mr. Scott’s arrest, Mr. Scott said “My life is over.
life is over.

You don’t understand.”

My

The prosecutor

characterized these statements as tantamount to a confession by
Mr. Scott: “I suggest to you, ladies and gentlemen, that is as
good as a confession of guilt . . . His life was over because he
knew he had been caught, he knew he had been cornered.”
Finally, the prosecutor discussed the Commonwealth’s burden
of proof, stating “It is a heavy burden of proof, a monumental
burden of proof.
criminal case.

But it is the same burden of proof in every

It is a burden of proof that I will gladly

shoulder with evidence like this.”
The Supreme Judicial Court addressed each of these
statements in its opinion affirming Mr. Scott’s conviction.
First, with respect to the prosecutor’s characterization of
Mr. Scott’s statements as a confession, the Supreme Judicial
Court rejected Mr. Scott’s contention that “this argument was
impermissible and not a fair inference from the record . . . the
jury could reasonably infer from the evidence that the defendant
made the statements because he knew that the Glock in his hand
was the one used in the shooting of Essaid, and that police would
inevitably discover the connection.”
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Scott, 977 N.E.2d at 501.

With respect to the statements about defense counsel, the
Supreme Judicial Court found that “the prosecutor’s personal
comments about defense counsel went beyond the bounds of proper
argument . . . [However,] the comments were focused on the
defendant’s counsel and not on the character of the defendant or
the evidence confronting him, and would have had little, if any,
effect on the jury.”

Id.

With respect to the statements about the burden of proof,
the court said that “the prosecutor's comment . . . was made at
the end of a lengthy and accurate discussion on the heavy burden
of proof that the Commonwealth was required to meet. In that
context, and given the testimony from an eyewitness to the
shooting who was only a few feet away, plus the testimony of a
number of police officers as to the defendant’s actions on the
evening of February 6, 2003, the prosecutor’s suggestion that the
evidence was strong is well supported.”

Id. at 575.

In evaluating a claim for prosecutorial misconduct, the
relevant question “is whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974)).

“Moreover, the appropriate standard of review

for such a claim on writ of habeas corpus is ‘the narrow one of
due process, and not the broad exercise of supervisory power.’”
Id. (quoting Donnelly, 416 U.S. at 642).
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The approach taken by the Supreme Judicial Court is in
substance that required by the United States Supreme Court.

In

Donnelly, the Supreme Court evaluated the entire trial record to
determine if the proceeding was so “fundamentally unfair as to
deny [the petitioner] due process” and considered “the
seriousness of the improper remark, the context in which the
statement was made, the court’s response or curative
instructions, and the effect of the statement on the overall
proceeding.”

Dagley v. Russo, 540 F.3d 8, 17 (1st Cir. 2008)

(discussing Donnelly, 416 U.S. at 644-47).

The Supreme Judicial

Court did the same here, weighing the seriousness of the remarks
by the prosecutor within the context of the entire proceeding and
recognizing the curative statement by the trial court, who
instructed the jury: “[L]et me remind you that what counsel have
said in their closing arguments is not evidence.

It is their

view of the evidence and each of you must make your own
independent judgment about what you believe the evidence proves
or does not prove . . . [C]ounsel’s role here is to try the case,
not to give opinions and not to interject themselves into the
process, so if you think anyone has done that or feel anyone has
done that, disregard that altogether.”
As the Supreme Court has recognized, a trial may be
imperfect, but that does not make it “fundamentally unfair.”
Darden, 477 U.S. at 183.

Although some portion of the

prosecutor’s closing statement may have been beyond the bounds of
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proper argument, those comments were only a small part of a
larger trial.

Moreover, the comments were followed by clear

instructions by the judge to the jury directing them to disregard
any personal opinions interjected by either counsel.

The

decision to reject Mr. Scott’s argument that the prosecutor’s
comments during his closing argument rendered his trial
“fundamentally unfair” was not contrary to clearly established
federal law.
2.

The Prosecutor’s Questions about Mr. Scott’s Juvenile
Record

During his direct examination, Mr. Scott testified about
acquiring the firearm ultimately used in the shooting.

As he

explained, he purchased the gun while living in Arizona in 2002.
In response to a question from his own counsel regarding how he
acquired the weapon, he testified that: “[He] filled out a form
indicating, . . . that [he] didn’t have any criminal background,
and [he] showed [the seller] [his] driver’s license.”
The prosecution sought to challenge this testimony by asking
about Mr. Scott’s juvenile record.

The Commonwealth’s prosecutor

and Mr. Scott had the following colloquy:
Q:

You had a prior case in Juvenile Court, sir . . . Is that
right?

A:

Yes, sir.

Q:

And you were found guilty?

A:

No, I was not.

Q:

You were not found guilty?
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A:

No, sir, I was not.

Q:

Found delinquent?

A:

No, sir, I was given probation.

Q:

You were given probation?

A:

Yes. And if I completed my probation that I would not have
been charged with the incident.

...
Q:

You didn’t indicate that on the form, did you?

A:

No, because it says felony. That’s a federal form. If I
was charged I would not have received the firearm, sir.

Q:

You received probation?

A:

Yes, I did.
Defense counsel objected to this line of testimony.

During

a sidebar discussion, the trial court learned that the prosecutor
had not obtained a record of Mr. Scott’s juvenile adjudication
and decided that it would strike the testimony related to Mr.
Scott’s juvenile record.

The trial judge instructed the jury

accordingly: “Ladies and gentlemen, the question and answer
regarding something that happened in Juvenile Court is stricken
from the record and you’re not to consider it at all.”
The improper statements regarding Mr. Scott’s juvenile court
proceeding do not warrant habeas relief for two reasons.

First,

after the statements were elicited by the prosecution, the judge
promptly issued a curative instruction.

A “‘crucial assumption’

underlying the system of trial by jury ‘is that juries will
follow the instructions given them by the trial judge.’”
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Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983) (quoting
Parker v. Randolph, 442 U.S. 62, 73 (1979), abrogated in part
Cruz v. New York, 481 U.S. 186, 191 (1987)).

While there may

circumstances in which “the risk that the jury will not, or
cannot, follow instructions is so great” that such instructions
will be insufficient to preserve due process, Gray v. Maryland,
523 U.S. 185, 190 (1998) (quoting Bruton v. United States, 391
U.S. 123, 136 (1968)), there is no reason to believe that this is
such a circumstance; the inappropriate testimony was brief and
the instruction was given clearly and promptly.
Second, even if no curative instruction had been given, this
testimony did not reach the level of a violation of clearly
established Federal law, as determined by the Supreme Court of
the United States.

The Supreme Court has expressly declined to

determine “whether a state law would violate the Due Process
Clause if it permitted the use of ‘prior crimes’ evidence to show
propensity to commit a charged crime.” Estelle v. McGuire, 502
U.S. 62, 75 n. 5 (1991).

Absent such an express determination,

“the broader fair-trial principle is the beacon by which we must
steer.”
2011).

Confingford v. Rhode Island, 640 F.3d 478, 485 (1st Cir.
The stricken testimony was only a brief colloquy, which

did not describe the underlying juvenile offense or give any
indication of its seriousness.

Rather, the testimony was only

that Mr. Scott had been involved in a minor offense as a juvenile
and had been placed on probation, after which he was deemed
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legally permitted to purchase a firearm.

As the Supreme Judicial

Court recognized, such a fact “would have had but little impact
on the jury.”

Scott, 977 N.E.2d at 501.

See also Crouse v.

Dickhaut, 2013 WL 1054845, at *13 (D. Mass. March 13, 2013)
(citations omitted) (“Vague references, with no elaboration
regarding the specific crime or surrounding circumstances, to a
petitioner’s prior time in prison have been held not to
constitute a violation of due process.”).
B.

Peremptory Challenge of African-American Jurors.
Mr. Scott contends that the Commonwealth exercised its

peremptory challenges in a racially discriminatory manner that
violated the Fourteenth Amendment, and that the state court
decisions upholding his conviction in light of this violation
represent an “unreasonable application” of Supreme Court
precedent under 28 U.S.C. § 2254(d).
As the Supreme Court has explained, “[t]he Constitution
forbids striking [from the jury] even a single prospective juror
for a discriminatory purpose.”
472, 478 (2008).

Snyder v. Louisiana, 552 U.S.

Batson v. Kentucky, 476 U.S. 79 (1986) sets

forth the clearly established federal law governing contentions
that the prosecution has violated a defendant’s rights by
exercising peremptory juror challenges in a racially
discriminatory manner.

In Batson, the Supreme Court “described a

three-part test for adjudicating claims that peremptory
challenges have been exercised in a discriminatory manner.
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The

moving party bears the initial burden of demonstrating a prima
facie case of discrimination . . . If this burden is met, the
non-moving party must then offer a non-discriminatory reason for
striking the potential juror . . . Finally, the trial court must
determine if the moving party has met its ultimate burden of
persuasion that the peremptory challenge was exercised for a
discriminatory reason.”

Aspen v. Bissonnette, 480 F.3d 571, 574

(1st Cir. 2007) (citing Batson, 476 U.S. at 96-98).
During the first day of jury selection, the prosecution
sought to exercise a peremptory challenge against juror no. 5-16,
an African-American male.

The prosecutor indicated his reason

for the challenge was that the juror had an upcoming job
interview within the next week and was anticipating the birth of
his child within the next month.

Defense counsel objected, under

Commonwealth v. Soares, 387 N.E.2d 499, cert. denied, 444 U.S.
881 (Mass. 1979), stating that the challenged juror was one of
the few black males in the room.

The judge rejected the

challenge and sat juror no. 5-16.

During the second day of jury

selection, the prosecution sought to exercise a peremptory
challenge as to juror no. 10-10, an African-American female.
Defense counsel again objected under Soares stating “[t]hat was a
black female, and I suggest to the Court that, I believe this is
the third or fourth person of color, the fourth person of color
that the Commonwealth has challenged.”
I didn’t allow.

The Court responded: “One

The others, there were neutral reasons for them.
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In this county they challenge everybody under twenty-five,
thirty, whatever.

What was your reason?”

The prosecution then

stated: “First, as a matter of record, the Commonwealth has, I
don’t know the numbers but several people of color that were not
challenged.

I suggest there is no pattern.

I understand the

Court’s ruling on the gentleman yesterday as a male . . . But
there are a number of women of color who were seated on the jury
yesterday.”

The judge then allowed the challenge and the juror

was excused.

Finally, the prosecutor then sought to exercise a

peremptory challenge against juror no. 11–10, a Hispanic female.
In response to defense counsel’s objection, the prosecutor
responded that there was no “pattern” of discrimination and also
explained that the juror was employed at a school where a man
that he was prosecuting for murder had previously worked.

After

further questioning from the judge revealed no relationship
between the prospective juror and this man, the prosecutor
withdrew the challenge.
In reviewing these events, the Massachusetts Supreme
Judicial Court determined that Mr. Scott had not made out a prima
facie case that the prosecution was employing its peremptory
challenges in a racially discriminatory manner: “By not requiring
the prosecutor to provide a reason for the challenge after his
initial statement that there was no pattern of discrimination,
the judge plainly accepted the prosecutor’s assertion,
unchallenged by the defendant, that a number of African–American
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women (as was juror no. 10–10) had been seated without challenge
on the previous day, and that there was no pattern of
discrimination, thus concluding that the defendant had not met
his burden of establishing a prima facie case.”

Scott, 977

N.E.2d at 499.
The question thus is whether the Massachusetts Supreme
Judicial Court’s determination that a prima facie case of
discrimination had not been made out was an “unreasonable
application” of Batson and its Supreme Court progeny.
Recently, in Sanchez v. Roden, 753 F.3d 279 (1st Cir. 2014),
the First Circuit explored the standard for evaluating a Batson
challenge in a state habeas corpus proceeding.

There the court

observed that the only “objective difference” between a juror who
was struck by the prosecutor and one who was not was race--“the
government struck the black juror while allowing the white one to
serve.”

Id. at 304.

As the court explained, “[s]uch

differential treatment, while by no means dispositive as to the
ultimate question of racial discrimination, suffices at Batson’s
first step to raise an inference of possible racial
discrimination.”

Id.

Additionally, the First Circuit explained

that it could find no reason for this challenge or the challenge
of other young black men: “We can do no more than speculate, as
no reason for the challenges—at least, none that appears to have
mattered to the prosecutor in light of the characteristics of
other prospective jurors he did not challenge—is obvious from
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this record.”

Id. at 305.

Taken together, the First Circuit in

Sanchez concluded that the “the facts and circumstances were
sufficient to permit an inference that the prosecutor’s challenge
of [one of the jurors] may have been racially motivated.” Id. at
307.
That is not the circumstance in this case.

Here, the record

does not contain any information suggesting a “differential
treatment” of African-Americans by comparison with otherwise
similar juror-candidates.

The Massachusetts Supreme Judicial

Court found that there was no pattern of discrimination
discernable from the numeric evidence regarding the jurors who
were seated, observing that “the defendant did not dispute the
prosecutor’s assertion, with which the judge apparently agreed,
that at least three African–American jurors had been seated when
juror no. 10–10 was challenged.”

Scott, 977 N.E.2d at 499.

The

Supreme Judicial Court also recounted that the trial court,
before inquiring of the prosecutor about the reasons for his
challenges, observed that race-neutral reasons for them existed-suggesting that the trial court had not concluded that there was
a prima facie case of discrimination.
In sum, the Massachusetts Supreme Judicial Court made the
appropriate inquiry, which required that it review “all of the
circumstances that bear upon the issue of racial animosity,”
Snyder, 552 U.S. at 478, focusing on “whether ‘a peremptory
challenge was based on race.’” Sanchez, 753 F.3d at 292 (quoting
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Snyder, 552 U.S. at 476).

Having engaged in the proper inquiry,

the Supreme Judicial Court made the determination that no prima
facie case of discrimination had been made.

This factual

determination, owed deference under AEDPA, was not an
“unreasonable application” of federal law and so precludes habeas
relief on Mr. Scott’s Batson claim.
C.

Ineffective Assistance of Counsel
Mr. Scott contends that he was deprived of his

constitutional right to the effective assistance of counsel in
two ways.

First, that his counsel failed to move to suppress

statements made by Mr. Scott at the time of his arrest or to
request a jury instruction regarding voluntariness, and second,
that his counsel failed to request a mistrial after the
prosecution questioned Mr. Scott about his juvenile record.
The Supreme Court set forth the standard for a claim of
ineffective assistance of counsel in Strickland v. Washington,
466 U.S. 668, 687 (1984):
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
To establish ineffectiveness, a “defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.”

Id. at 688.

To establish prejudice he “must
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show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”
Id. at 694.

A court evaluating a claim of ineffective assistance

“must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. at 689.
1.

Failure to Move to Suppress Mr. Scott’s Statements or
Request a Jury Instruction on Voluntariness

To assert a meritorious claim of ineffective assistance of
counsel based upon a failure to file a motion to suppress
evidence, the underlying motion to suppress must itself have
merit.

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).

Because

Mr. Scott cannot show this necessary predicate, his claim for
habeas relief on this basis fails.
The testimony at trial was that, after being chased by
police and during an armed stand-off, Mr. Scott made a series of
statements, including saying: “Kill me, shoot me, I can’t go to
jail”; “It’s over, this is over, this is it”; and, in response to
statements from police that he might only spend a year in jail,
“you don’t understand.”

During its closing argument, as

discussed above, the prosecution described these statements as
tantamount to a confession by Mr. Scott that he had previously
committed a serious crime and therefore was facing a longer

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sentence than that warranted for a simple charge of possession of
a firearm.
Faced with these claims, the Supreme Judicial Court made a
determination that these statements were made voluntarily:
Nothing in the record suggests that the defendant's
statements were not voluntarily made, or that he was so
overwrought that they were not the product of a
rational intellect or made of his free will. The
statements were initiated by the defendant when he
jumped out from under the tarp and spontaneously
started speaking, and continued almost exclusively in
the absence of any questions by police . . . The
defendant was not being questioned about any crime.
Police were unaware that the defendant had any
involvement in an earlier shooting, and asked him
nothing about that crime. The questions they did
ask—“How many of your friends do you know have gone to
jail for illegal possession of a handgun?”—were focused
only on getting the defendant to put down his weapon.
Moreover, those few questions were rhetorical and
answered, in one instance, by the officer who posed the
question.
Scott, 977 N.E.2d at 504.

Mr. Scott has not offered any “clear

and convincing evidence” that these factual determinations are
incorrect; consequently those determinations are presumed
correct.

28 U.S.C. § 2254(e)(1).

These factual determinations

provide no suggestion either that the “defendant’s will was
overborne’ by the circumstances surrounding the giving” of these
statements, Dickerson v. United States, 530 U.S. 428, 434 (2000)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)), or
that these statements were the product of “coercive activity of
the State,” Colorado v. Connelly, 479 U.S. 157, 165 (1986), both
of which are predicates to a successful motion to suppress.

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Mr.

Scott’s counsel cannot be deemed ineffective for failure to file
motions which the facts, as found by the Supreme Judicial Court,
demonstrate to be non-meritorious.

See Acha v. United States,

910 F.2d 28, 32 (1st Cir. 1990) (per curiam) (“Trial counsel is
under no obligation to raise meritless claims,” and “[f]ailure to
do so does not constitute ineffective assistance of counsel.”).
This same conclusion extends to a failure to request a jury
instruction on voluntariness.

Massachusetts’ “humane practice”

jurisprudence requires that:
when statements amounting to a confession are offered
in evidence, the question whether they were voluntary
is to be decided at a preliminary hearing in the
absence of the jury. If he (the judge) is satisfied
that they are voluntary, they are admissible;
otherwise, they should be excluded. If the judge
decides that they are admissible, he should then
instruct the jury not to consider the confession if,
upon the whole evidence in the case, they are satisfied
that it was not the voluntary act of the defendant.2

2

The procedures under Massachusetts law differ from those
required by federal law. In a trial in federal court, “[b]efore
[a] confession is received in evidence, the trial judge shall,
out of the presence of the jury, determine any issue as to
voluntariness. If the trial judge determines that the confession
was voluntarily made it shall be admitted in evidence and the
trial judge shall permit the jury to hear relevant evidence on
the issue of voluntariness and shall instruct the jury to give
such weight to the confession as the jury feels it deserves under
all the circumstances.” 18 U.S.C § 3501(a). Massachusetts law
seeks to “preserve an independent role for the jury in applying
select technical exclusionary rules . . . ‘the judge hears the
[preliminary] evidence, himself resolves evidentiary conflicts
and gives his own answer to the preliminary question’ . . . The
jury may then . . . disagree with the judge, decline to find the
preliminary facts, and ignore the proffered evidence.”
Commonwealth v. Bright, 974 N.E.2d 1092, 1101-02 (Mass. 2012)
(quoting Jackson v. Denno, 378 U.S. 368, 378 n. 8 (1964)).
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Commonwealth v. Marshall, 155 N.E.2d 798, 800 (Mass. 1959).
However, “[a] judge has ‘no duty to ask the jury to pass on
voluntariness unless it is made a live issue at trial.’”
Commonwealth v. Tavares, 430 N.E.2d 1198, 1205 (Mass. 1982)
(quoting Commonwealth v. Alicea, 381 N.E.2d 144 (Mass. 1978)).
Given that the facts found by the Supreme Judicial Court
demonstrate the voluntariness of Mr. Scott’s confession was not a
“live issue,” failure to request this instruction does not
demonstrate that Mr. Scott’s counsel was ineffective.
2.

Failure to Request a Mistrial After the Prosecution’s
References to Mr. Scott’s Juvenile Record

Mr. Scott also argues that his counsel was incompetent for
failing to move for a mistrial after the prosecution’s questions
elicited brief, but vague, references to Mr. Scott’s juvenile
record.

As explained above, a petitioner asserting a claim for

ineffective assistance of counsel must show both that “counsel’s
performance was deficient” and “that the deficient performance
prejudiced the defense.”

Strickland, 466 U.S. at 687.

cannot meet either prong of this test.

Mr. Scott

First, following the

references to Mr. Scott’s record, his counsel promptly requested
and obtained a curative instruction from the judge.

This

demonstrates both that Mr. Scott’s counsel was alert to the
relevant issue and sought immediate corrective action.

Rather

than showing deficient performance, this suggests the opposite.
Second, Mr. Scott cannot demonstrate that the failure to request

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a mistrial prejudiced his defense.

“Within wide margins, the

prejudice caused by improper testimony can be addressed by
providing appropriate curative instructions.”

United States v.

De Jesus Mateo, 373 F.3d 70, 73 (1st Cir. 2004).

Such an

appropriate curative instruction was given here.

Moreover, again

as discussed above, the references to Mr. Scott’s juvenile
record, within the context of the trial, were so vague, brief and
immaterial that they were unlikely to affect the jury’s decision-even if uncured.

Given this, Mr. Scott cannot demonstrate

prejudice from his counsel’s failure to seek a mistrial.
D.

Failure of the Trial Judge to Provide a Jury Instruction
Regarding Defense of Another
Mr. Scott contends that the trial judge’s failure to

instruct the jury on defense of another violated the due process
guarantee of the Fourteenth Amendment.
Under Massachusetts law, an individual is entitled to use
force to protect a third person if “(a) a reasonable person in
the actor’s position would believe his intervention to be
necessary for the protection of the third person, and (b) in the
circumstances as that reasonable person would believe them to be,
the third person would be justified in using such force to
protect himself.”

Commonwealth v. Young, 959 N.E.2d 943, 952

(Mass. 2012) (quoting Commonwealth v. Martin, 341 N.E.2d 885, 891
(Mass. 1976)).

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The Supreme Judicial Court upheld the trial court’s
determination that an instruction regarding the defense of
another was not warranted based upon the evidence adduced at
trial.

As the Supreme Judicial Court explained, by the time Mr.

Scott engaged in the deadly shooting, his companion “had walked
on, as he told her to do, the defendant could no longer see her,
and he did not know where she had gone. Viewing the evidence in
the light most favorable to the defendant, the three men were
focused on, and surrounding, the defendant . . . The men were not
following or threatening Fernandes, who would not have been
entitled to use deadly force in her own defense.”
N.E.2d at 503.

Scott, 97

Mr. Scott has not set forth any facts

demonstrating that the Supreme Judicial Court’s conclusion was
improper.
More importantly, under 28 U.S.C. § 2254, habeas relief is
available only for violations of “clearly established federal
law.”

Improper instructions regarding state law “cannot, without

more, provide grounds for federal habeas corpus relief.”
v. Allen, 482 F. Supp. 2d 94, 114 (D. Mass. 2007).

Rosado

See also

Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982)
(“Instructions in a state trial are a matter of state law to
which substantial deference is owed,” and, thus, “[a]s a general
rule, improper jury instructions will not form the basis for
federal habeas corpus relief.”).

Habeas relief will be granted

only where “‘the ailing instruction by itself so infected the
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entire trial that the resulting conviction violates due
process.’”

Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten,

414 U.S. 141, 147 (1973)).

Based upon the factual record which

demonstrates no need under Massachusetts law for an instruction
regarding defense of another, I find no error in the trial
court’s refusal to provide that instruction to the jury and that
this refusal does not constitute a violation of Mr. Scott’s
federal due process constitutional rights.
IV. CONCLUSION
For all the reasons set forth above, I hereby order that
this petition for habeas corpus relief be DENIED and direct the
clerk to dismiss the petition.

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

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