Vaskanyan v. Roden

Filing 18

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - the Court DENIES Vaskanyan's petition for a writ of habeas corpus, D. 1, and GRANTS the motion to dismiss, D. 10, with prejudice as to grounds one and two and without prejudice as to grounds three, four and five.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
)
)
ARTEM VASKANYAN,
)
)
Petitioner
)
Civil Action No. 13-12422-DJC
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v.
)
)
GARY RODEN, as Superintendent of the
)
Massachusetts Correctional Institute at
)
Norfolk,
)
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Respondent.
________________________________________ )
MEMORANDUM AND ORDER
CASPER, J.
I.

August 6, 2014

Introduction
Petitioner Artem Vaskanyan (“Vaskanyan”) has filed a petition for a writ of habeas

corpus (“Petition”) pursuant to 28 U.S.C § 2254 alleging that (1) the state court violated his right
to an impartial jury by seating a biased juror; (2) his trial counsel’s failure to challenge the
seating of biased jurors resulted in a denial of his right to effective assistance of counsel and due
process; (3) he received an illegal sentence in violation of his due process rights; and (4) - (5) his
appellate counsel was ineffective. D. 1; D. 1-1. Respondent opposes the Petition and has moved
to dismiss, D. 10, arguing that Vaskanyan’s claims are not reviewable by this Court because the
claims are either (1) procedurally defaulted based on an independent and adequate state
procedural rule; or (2) based purely on state law. D. 11. For the reasons set forth below, the
Court DENIES Vaskanyan’s Petition and ALLOWS the motion to dismiss.

1

II.

Background
A.

Factual and Procedural History

In late 2001, Vaskanyan was tried before a Hampden Superior Court jury on charges
stemming from an October 31, 1999 home invasion in Springfield, Massachusetts.1 D. 1-1 at 26;
D. 11 at 2; Vaskanyan II,2 83 Mass. App. Ct. 1137, at *1. The Massachusetts Appeals Court
summarized the evidence presented during the criminal trial as follows:
On Halloween night in 1999, three men posing as trick-or-treaters forced their
way into the home of Ahmet Akin. During the ensuing robbery, Akin was beaten
and shot while trying to protect his daughter, Fulia. The intruders wore masks
and, as a result, neither victim was able to describe the robbers or identify them.
Ultimately, one of the men, Alexi Koba, confessed and identified the defendant
and Maksim Lutskov as his accomplices. Koba testified at trial for the
Commonwealth and provided significant details as to the planning and execution
of the robbery. Another witness, Alexander Arkapov, testified before the grand
jury that the defendant had been present in his apartment, which he shared with
Lutskov, on the night of the robbery. He also stated that he saw the defendant and
the others putting on Halloween costumes. At trial, however, Arkapov failed to
recall his grand jury testimony and claimed that he was too drunk that night to
remember anything. Reluctantly, Arkapov identified the defendant in court as
“[a] friend,” but maintained that he was unsure whether he saw the defendant at
his apartment on the evening of October 31, 1999.

1

To the extent that an Appeals Court decision or Respondent’s Memorandum is
referenced, Petitioner does not dispute Respondent’s recitation of facts with regard to the
procedural history of Petitioner’s case or the summary of evidence found by the Appeals Court.
D. 16 at 4.
2

All references to the record will be cited as follows: Vaskanyan’s Petition (D. 1);
Vaskanyan’s Petition Supplement (D. 1-1); Respondent’s Memorandum in Support of the
Motion to Dismiss (D. 11); Vaskanyan’s Memorandum in Opposition to the Motion to Dismiss
(D. 16); Transcript Excerpts, Jury Empanelment, December 14, 2001 (D. 16-1); Transcript,
Motion Hearing, October 14, 2008 (D. 16-2); Commonwealth v. Artem Vaskanyan, Appeals
Court of Massachusetts, Memorandum and Order Pursuant to Rule 1:28, October 15, 2010
(“Vaskanyan I”, 78 Mass. App. Ct. 1103); Commonwealth v. Artem Vaskanyan, Appeals Court
of Massachusetts, Memorandum and Order Pursuant to Rule 1:28, June 21, 2013 (“Vaskanyan
II”, 83 Mass. App. Ct. 1137).
2

Vaskanyan II, 83 Mass. App. Ct. 1137, at *1. On December 19, 2001, Vaskanyan was convicted
of (1) home invasion, (2) armed assault with intent to rob, (3)-(4) two counts of assault and
battery with a dangerous weapon, and (5) assault and battery. D. 1 at 1.3
Following these convictions, Vaskanyan filed a direct appeal to the Appeals Court in
December 2001. D. 1-1 at 26; D. 11 at 3. In June 2006, Vaskanyan filed a petition for writ for
habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the Commonwealth’s delay in
producing the criminal trial transcripts violated his due process rights. Id. This Court (Zobel, J.)
initially stayed the petition and, upon the Commonwealth’s ultimate production of the
transcripts, dismissed it without prejudice, noting that Vaskanyan would be free to refile a
federal habeas petition once his claim was exhausted at the state level. Vaskanyan v. Marshall,
No. 06-10975-RWZ, 2007 WL 906623, at *1 (D. Mass. Mar. 23, 2007).
In September 2007, while his direct appeal was pending, Vaskanyan filed a pro se motion
for a new trial. D. 1-1 at 27; D, 11 at 3. The Appeals Court consolidated Vaskanyan’s direct
appeal from the convictions and his appeal from the denial of his motion for a new trial.
Vaskanyan I, 78 Mass. App. Ct. 1103, at *2. The Appeals Court considered Vaskanyan’s claims
that his sentence was illegal under Massachusetts law, that the trial judge erred in seating biased
jurors, that the prosecutor improperly introduced testimony she knew to be false, and that his
trial counsel was ineffective for failing to challenge the seating of biased jurors and failing to
object to the prosecutor’s improper use of prior testimony. D. 1-1 at 1-2; Vaskanyan I, 78 Mass.
App. Ct. 1103, at *1-3. On October 15, 2010, the Appeals Court affirmed the convictions and
order denying a new trial. Vaskanyan I, 78 Mass. App. Ct. 1103, at *3. The Supreme Judicial

3

Vaskanyan was sentenced for these convictions in January 2002. D. 1 at 1.
3

Court denied Petitioner’s request for further appellate review in February 2011. Commonwealth
v. Vaskanyan, 459 Mass. 1103 (2011).
Petitioner, with the assistance of new counsel, filed a second motion for new trial in
November 2011. D. 1-1 at 28, D. 11 at 4. That motion was denied and Petitioner appealed in
May 2012. Id. In his appeal, Petitioner argued that (1) the trial judge erred in refusing to
provide the jury with an instruction regarding identification; (2) that the Commonwealth
improperly introduced prior grand jury testimony at trial and improperly suggested that the jury
could consider it for substantive purposes; and (3) that his counsel on direct appeal was
ineffective for failing to raise or advance both of those issues.4 D. 1-1 at 3.
In the consolidated direct appeal and first motion for new trial, Vaskanyan did not raise,
and the Appeals Court did not consider the identification instruction or improper testimony
issues. Vaskanyan I, 78 Mass. App. Ct. 1103. Therefore, in considering Vaskanyan’s second
motion for new trial, the Appeals Court determined that both claims of error at trial had been
waived and that it was not the type of “extraordinary case” that would warrant allowing
Petitioner to raise the waived issues to prevent a “miscarriage of justice.” Vaskanyan II, 83
Mass. App. Ct. 1137, at *1 (citing Commonwealth v. Harrington, 379 Mass. 446, 449 (1980)).
The Appeals Court then considered Vaskanyan’s ineffective assistance of counsel claims under

4

The Appeals Court characterized Petitioner’s ineffective assistance of counsel claims as
relating to 1) trial counsel’s failure to preserve the improper use of prior testimony issue and 2)
the first appellate counsel’s failure to raise the identification instruction and improper testimony
issues, either in the first motion for new trial or on direct appeal of the convictions. Vaskanyan
II, 83 Mass. App. Ct. 1137, at *1. Petitioner argued in his brief that, while trial counsel
requested and was denied an instruction on the subject of identification as it related to the
victims’ identification of the assailants, the trial judge did not fully consider issuing an
identification instruction as it related to a possible misidentification of Petitioner by an
admittedly intoxicated co-assailant. See 2012 WL 2345241, at *8. Petitioner characterized the
identification instruction issue as being fully preserved, making his first appellate counsel’s
failure to raise it the basis for the ineffective assistance claim. See id.
4

the “substantial risk of a miscarriage of justice” standard. Id. Finding that neither claim of
ineffective assistance of counsel created a substantial risk of a miscarriage of justice, the Appeals
Court affirmed the order denying the second motion for new trial on June 21, 2013. Vaskanyan
II, 83 Mass. App. Ct. 1137, at *2, and the Supreme Judicial Court denied an application for
further appellate review on July 25, 2013. Commonwealth v. Vaskanyan, 466 Mass. 1102
(2013). Vaskanyan filed the present, timely Petition for writ of habeas corpus on September 30,
2013. D. 1.
B.

Vaskanyan’s Petition and Memorandum in Opposition to Respondent’s
Motion to Dismiss

The first two grounds of Vaskanyan’s Petition relate to the trial court’s seating of, and
trial counsel’s purported ineffectiveness in failing to object to, allegedly biased jurors. D. 1; D.
1-1. Grounds three through five relate to the legality of his sentence and claims that his appellate
counsel was also ineffective. Id. In his memorandum of law in opposition to Respondent’s
motion to dismiss, D. 16, Vaskanyan advances arguments pertaining to grounds one and two
only. He concedes that grounds three through five of his petition appear to be without merit and
does not advance arguments related to those grounds. D. 16 at 4, n. 3. Because Vaskanyan
advances arguments related only to grounds one and two of the Petition, the Court will consider
those grounds and related arguments and will dismiss, without prejudice, grounds three through
five.
C.

Relevant Proceedings in State Court

The Court summarizes the state proceedings relevant to ground one and ground two of
the Petition.

5

1.

Jury Empanelment

Petitioner argues, as he did upon direct appeal, that the trial judge erred by seating a juror
who stated he would credit the testimony of a police witness more than that of another person,
thereby depriving him of his right to an impartial jury.

D. 1-1 at 4.

Vaskanyan’s jury

empanelment took place in Hampden Superior Court on December 14, 2001. The court engaged
in the following colloquy with juror 4-13:
JUROR:
COURT:
JUROR:
COURT:

JUROR:
COURT:

JUROR:

COURT:

JUROR:

COURT:

JUROR:
COURT:
JUROR:
COURT:
JUROR:
COURT:

I’m John Rit Rit (phonetic)
Okay, sir.
My problem is I would tend to believe what a police officer said. I don’t
know if I can be truly impartial.
That’s what you’re here to decide. Let me ask you this. I’m looking at
your background. Obviously you’re a United States citizen. You truly
feel you could not keep an open mind in terms of (inaudible) credibility
whether it’s a police officer or someone else?
I don’t know honestly, and I know a couple policemen and I would like to
think I could but I don’t really know if I could.
Okay. I’m not going to excuse you at this time. I’m going to take a look
at the overall panel. I understand you’ll be deciding this case on the facts
presented to you in this courtroom.
I only believe the police officer would have whatever facts to do the job to
get him there. I’m sorry. I think policemen would have the facts to arrest
someone.
So you think that because a person is charged with a crime and a police
officer’s participation in developing that charge, that the charge is
necessarily true?
I don’t think that the policemen developed a charge. What I think is the
policemen had the facts to see that he got the right person. That’s why I’m
saying I don’t think he would arrest anyone without substantial proof.
But you do understand police officers would not be testifying as to
innocence or guilt. That’s not their determination. They’re testifying as to
facts.
As to facts they have found.
So knowing that would you still have a tendency to believe them if the
same facts were testified to by a civilian witness?
Are you asking me if civilian witness (inaudible) tend to believe police
officer more?
Or civilian witness didn’t (inaudible), tend to believe police not the
civilian no matter what is said?
I don’t know.
I’m going to keep you. I think you can keep an open mind.
6

D. 16-1 at 24-27.
The colloquy with juror 4-8 was as follows:
COURT:
JUROR:
COURT:
JUROR:
COURT:
JUROR:
COURT:
JUROR:
COURT:

JUROR:
COURT:
JUROR:
COURT:

Mr. Robert.
Yes.
You’re currently in the armed forces?
Yes, I am. In the National Guard 23 years, first sergeant maintenance
squad.
What’s your concern.
I answered yes to I’d believe a police officer.
You would have a tendency to believe a police officer over a civilian?
Yes.
Do you feel, based on your military background and principles you use in
that capacity as well as your thoughts as an American citizen, that you
could put that aside and keep an open mind in terms of civilian witnesses
versus police officers?
I think I could. I answered yes to the question. I think I could put it aside.
You think you could put it aside?
Uh-huh
You’re here because I asked that question. Good for you, Mr. Robert. I’m
going to keep you.

D. 16-1 at 22-23. After voir dire of the jury pool, the parties were allowed to challenge the
seating of individual jurors. D. 1-1 at 7. Vaskanyan’s defense counsel exercised all fourteen
allotted preemptory challenges, while the Commonwealth used nine. Id. Defense counsel did
not challenge juror 4-8 or 4-13, either for cause or via a peremptory challenge, and did not
request additional preemptory challenges. Id.5
2.

Evidentiary Hearing Relative to Vaskanyan’s 2008 Motion for a New Trial

During a motion hearing related to Vaskanyan’s first motion for a new trial, his trial
counsel testified as to her recollection of the voir dire of juror 4-13. D. 16-2 at 8. She testified
that, at that time, she had no recollection of the colloquy with juror 4-13 and did not remember
why she had not used a preemptory challenge or objected for cause. Id. However, she also
5

In his opposition to the motion to dismiss, Vaskanyan does not press his argument as to
juror 4-8 as he concedes that it is without merit. D. 16 at 6 n. 6.
7

testified that she had twelve years of experience doing criminal defense work, that she
understood her right to challenge a juror for cause during the jury selection process, and that, if
she had concerns about a potential juror, she would have requested that the court conduct further
voir dire of the individual. Id. at 7-9. She testified, further, that if she did not challenge a juror
for cause or use a peremptory challenge and did not request that additional questions be posed to
the individual, it would be fair to say that she felt that the individual would be good juror, either
for her or for her client. Id. at 8-9.
III.

Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this

Court reviews Vaskanyan’s application for a writ of habeas corpus to determine if the state court
adjudication “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); Clarke v. Spencer, 582 F.3d 135, 140 (1st Cir. 2009). This standard is
“‘difficult to meet’ because the purpose of [the statute] is to ensure that federal habeas relief
functions as a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not
as a means of error correction.” Greene v. Fisher, __ U.S. __, 132 S. Ct. 38, 43 (2011) (internal
citations omitted).
A state court decision is “contrary to” clearly established Supreme Court precedent where
“the state court applies a rule that contradicts the governing law set forth in [Supreme Court]
cases” or where “the state court confronts a set of facts that are materially indistinguishable from
a [Supreme Court] decision and nevertheless arrives at a result different from [Supreme Court]
precedent.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an
“unreasonable application” of Supreme Court precedent “if the state court identifies the correct

8

governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case.” Id. at 407; see L’Abbe v. DiPaolo, 311 F.3d 93, 96 (1st Cir.
2002); McCambridge v. Hall, 303 F.3d 24, 36-37 (1st Cir. 2002). Because the statute “uses the
word ‘unreasonable,’ as opposed to ‘erroneous’ or ‘incorrect,’ a state court’s application of
federal law must go beyond simple error to justify issuance of the writ of habeas corpus.”
Morgan v. Dickhaut, 677 F.3d 39, 46 (1st Cir. 2012) (citing Williams, 529 U.S. at 411).
IV.

Discussion
A.

Petitioner’s Claim Regarding the Seating of Certain Jurors Must Fail

When a federal habeas petition challenges a state court decision that “rests on a state law
ground that is independent of the federal question and adequate to support the judgment,” a
federal court is precluded from considering the habeas claim. Jewett v. Brady, 634 F.3d 67, 76
(1st Cir. 2011) (quoting Walker v. Martin, 131 S. Ct. 1120, 1127 (2011)). “Procedural default of
federal claims in state court is an independent and adequate state-law ground barring habeas
relief . . . so long as the state regularly follows the rule and has not waived it by relying on some
other ground.” Id. (citations omitted). In Massachusetts, it is an “unbroken practice [ ] beyond
question” that issues “which could have been raised at the trial and in appellate review after
trial[,] but which were not so raised” are considered waived, outside of extraordinary cases in
which a judge makes a discretionary determination that the waived claims should be considered
to prevent a miscarriage of justice. Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973)
(internal quotations omitted) (citing cases); Commonwealth v. Harrington, 379 Mass. 446, 449
(1980); Commonwealth v. Watson, 409 Mass. 110, 114 (1991).

“[T]he Massachusetts

requirement for contemporaneous objections is an independent and adequate state procedural

9

ground, firmly established in the state's jurisprudence and regularly followed in its courts.”
Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010).
However, the bar on consideration of a procedurally defaulted claim is removed “[i]f the
last state court to be presented with a particular federal claim reaches the merits,” Bly v. St.
Amand, No. 08-10005-MLW, 2014 WL 1285684, at *5 (D. Mass. Mar. 31, 2014) (quoting Ylst
v. Nunnemaker, 501 U.S. 797, 801 (1991)), or if Petitioner can demonstrate “either cause for the
default and prejudice from the claimed violation of federal law, or that a fundamental
miscarriage of justice will result if the claim is not considered.” Gunter v. Maloney, 291 F.3d
74, 78 (1st Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). To demonstrate
cause for a procedural default, a Petitioner must generally demonstrate that “some objective
factor external to the defense impeded [his] counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Further, “the mere fact that
counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim
despite recognizing it, does not constitute cause for a procedural default.” Id. at 486.
Petitioner asserts that the court’s selection of juror 4-13 deprived him of his right to an
impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. D.
1-1 at 4. He contends that this claim was not procedurally defaulted at the state level because,
despite determining that the claim had been waived, the Appeals Court proceeded to adjudicate
the merits of the claim, thereby removing the bar to habeas review. D. 16 at 5. Petitioner
concedes that

“had [the Appeals Court] stopped at its finding of waiver, [R]espondent’s

procedural bar argument would prevail.” Id. However, Petitioner argues that because the
Appeals Court did not review the claim under a “substantial risk of a miscarriage of justice”
analysis in Vaskanyan I, as the court did with errors that it viewed as waived in Vaskanyan II,

10

the Appeals Court must have assessed the merits of the impartial jury claim when it decided
Vaskanyan’s consolidated direct appeal and motion for new trial. Id. at 5-6. In other words,
Petitioner asserts that the different standards applied in Vaskanyan I and Vaskanyan II indicate
that the Appeals Court considered the merits of his impartial jury claim in 2010, removing the
bar on consideration of procedurally defaulted claims. Id. at 6.
In Vaskanyan I, the Appeals Court observed that “[a]s an initial matter, defense counsel
did not challenge juror number 4-13 for cause or use a preemptory challenge,” determining
“[t]hus, the question of impartiality of that juror and the adequacy of the voir dire are waived.”
Vaskanyan I, 78 Mass. App. Ct. 1103, *1. The court continued, stating “[e]ven if this were not
the case, our review of the record leads us to conclude that the judge did not abuse his
discretion.” Id.
Accordingly, the Appeals Court did make an overt determination that the question of the
impartiality of the juror 4-13 and the adequacy of the trial court’s voir dire examination had been
waived. However, because the court went on to review the record for abuse of discretion by the
trial court, and because the court did not explicitly view Vaskanyan’s ineffective assistance of
counsel claim as waived, it is not clear that the Appeals Court offered a “plain statement that its
decision rests upon adequate and independent state grounds.” Harris v. Reed, 489 U.S. 255, 261
(1989) (citation and internal marks omitted). While “a state court need not fear reaching the
merits of a federal claim in an alternative holding” and “may reach a federal question without
sacrificing its interests in finality, federalism, and comity,” a state court must first “explicitly
invoke[] a state procedural bar rule as a separate basis for decision” before assessing the merits
of the claim in the alternative. Harris v. Reed, 489 U.S. 255, 264, n.10 (1989) (emphasis in the

11

original); but see Boutwell v. Bissonnette, 66 F. Supp. 2d 243, 245-46 (D. Mass. 1999); Buxton
v. Collins, 925 F.2d 816, 821 (5th Cir. 1991).
In light of the entire opinion, the Appeals Court did not “clearly and expressly”
demonstrate the court’s intention to rest its decision on state procedural grounds, Harris, 489
U.S. at 263, particularly where the further discussion was not clearly a “discretionary, and
necessarily cursory, review under a ‘miscarriage of justice’ analysis,” which would not indicate
the state court’s intention to waive its reliance on the independent state procedural rule, this
Court’s review of the merits does not “undermine the rule that a state court's finding of
procedural default is an adequate and independent state ground.” Lynch v. Ficco, 438 F.3d 35,
45 (1st Cir. 2006); Gunter, 291 F.3d at 80 (1st Cir. 2002); Jackson v. Amaral, 729 F.2d 41, 44-45
(1st Cir. 1984); Loughman v. O'Brien, 603 F. Supp. 2d 259, 263 (D. Mass. 2009). As such, the
Court can address the merits of ground one here. Spencer, 582 F.3d at 143.6
However, the Appeals Court’s finding that the trial judge’s assessment of the impartiality
of juror 4-13 was not erroneous or an abuse of discretion is not a decision “contrary to, or
involv[ing] an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States.” U.S.C. § 2254(d)(1); Spencer, 582 F.3d at 140. Because
the voir dire process aims specifically at identifying potential juror bias, and because the trial
court’s determination that a juror was unbiased is “entitled to a presumption of correctness under
28 U.S.C. § 2254,” Petitioner bears a heavy burden of demonstrating juror partiality. Gilday v.
Callahan, 866 F. Supp. 611, 623 (D. Mass. 1994), aff’d, 59 F.3d 257 (1st Cir. 1995).
The question whether jurors are impartial in the constitutional sense is one of mixed law
and fact as to which the challenger has the burden of persuasion, for: ‘[u]nless he shows
6

Having found that ground one is not clearly in procedural default, the Court need not
address Petitioner’s alternative argument, D. 16 at 6-7, that ineffective assistance of trial counsel
caused the procedural default, resulting in prejudice.
12

the actual existence of such an opinion in the mind of the juror as will raise the
presumption of partiality, the juror need not necessarily be set aside. . . . And, to decide
whether the challenger has sustained his burden, it is the duty of this court [] to
independently evaluate the voir dire testimony of the impaneled jurors.’
Geagan v. Gavin, 292 F.2d 244, 246-47 (1st Cir. 1961) (internal citations omitted).
As the Appeals Court discussed, the trial court’s colloquy7 with juror 4-13 does not
clearly demonstrate that the juror would be unable to remain impartial. Vaskanyan I, 78 Mass.
App. Ct. 1103, at *1. Juror 4-13 stated that he “would like to think [he] could” keep an open
mind regarding a witness’ credibility, but did not know whether he really could. However, the
Appeals Court noted (1) that the trial judge carefully examined the prospective jurors who
informed the court that they believed they would afford greater weight and credibility to a police
officer’s testimony than to a civilian’s testimony; (2) that the trial judge concluded that he would
not have seated juror 4-13 before ascertaining the juror’s impartiality; and (3) that Vaskanyan’s
trial counsel was satisfied with the jury. Id. at *1-2. As there was no objection from trial
counsel, the facts surrounding the placement of juror 4-13 are distinguishable from those cited in
Petitioner’s brief, D. 16 at 13-14, in which prospective jurors were seated over objection from
defense counsel that they be removed for cause.
On this record, the Appeals Court’s determination that the seating of juror 4-13 did not
deprive Vaskanyan of his right to an impartial jury is not one 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); Spencer, 582 F.3d at 140; see Gavin, 292
F.2d at 249 (noting that trial courts assess a potential juror’s character and intelligence through

7

Although the trial court and the Appeals Court each acknowledged that the transcript of
the voir dire contained “inaudibles” and was not entirely complete, both courts relied upon the
transcript in part in evaluating Vaskanyan’s claims. Vaskanyan I, 78 Mass. App. Ct. 1103, at *1
n. 2.
13

observation of his general appearance and demeanor during voir dire and acknowledging that
“one who is aware of a slant of mind may not only be more intelligent than one who is not, but,
also, being aware and more intelligent, be better able to make due allowance for his predilection
and guard against it in conscientiously performing his sworn duty as a juror”). The court’s
conclusion regarding this issue cannot be said to have been unreasonable.
B.

Petitioner’s Ineffective Assistance of Counsel Claim

Vaskanyan next contends that his trial counsel’s failure to challenge the seating of two
biased jurors denied him of his constitutional right to effective assistance of counsel. D. 1-1 at 6.
Specifically, he argues that trial counsel’s failure to use a preemptory challenge or challenge for
cause jurors 4-13 or 4-8,8 each of whom deliberated in his case, constituted ineffective assistance
of counsel. Id. at 7.
As previously discussed, the Appeals Court acknowledged that “defense counsel did not
challenge juror number 4-13 for cause or use a preemptory challenge.” Vaskanyan I, 78 Mass.
App. Ct. 1103, at *1. Again, however, the court did not “clearly and expressly” demonstrate an
intent to rely on procedural waiver as the basis for deciding the ineffective assistance of counsel
claim, Reed, 489 U.S. at 263, particularly in light of the court’s analysis of the issue under
Commonwealth v. Saferian, the Massachusetts standard for ineffective assistance of counsel
claims that is functionally equivalent to the Strickland standard. Ficco, 438 F.3d at 48 (noting
the functional equivalence of the two standards).
Having determined that the Appeals Court reached the merits of the ineffective assistance
of counsel claim, rather than relying on waiver as the basis for its determination, this Court will
apply the AEDPA standard of review to determine whether the decision was “contrary to, or

8

See footnote 5, supra.
14

involved an unreasonable application of, clearly established Federal law.”

28 U.S.C. §

2254(d)(1); Janosky, 594 F.3d at 46-47. “The Strickland standard qualifies as clearly established
federal law for purposes of habeas review.” Id. at 47 (citations omitted). The Appeals Court’s
employment of a standard functionally equivalent to Strickland demonstrates that the decision
was not contrary to clearly established federal law. Id.
To demonstrate ineffective assistance of counsel under Strickland, a defendant must show
(1) that counsel’s performance was so deficient that he, effectively, did not receive “counsel” as
guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudiced the
defendant, depriving him of a fair trial. Strickland, 466 U.S. at 687. Thus, the defendant must
show that his “counsel’s representation fell below an objective standard of reasonableness,” Id.
at 688, and that “there is a reasonable probability [(which undermines confidence in the outcome
of his case)] that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Under Saferian, employed by the Appeals Court here, Massachusetts
courts analyze “the specific circumstances of the given case to see whether there has been
serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling
measurably below [that] which might be expected from an ordinary fallible lawyer-and, if that is
found, then, typically, whether it has likely deprived the defendant of an otherwise available,
substantial ground of defense.” Commonwealth v. Saferian, 366 Mass. 89, 96, (1974).
Petitioner asserts that the Appeals Court improperly applied the standard for evaluating
the effectiveness of counsel. D. 16 at 17. The Appeals Court determined that Vaskanyan had
not met his burden of demonstrating ineffective assistance, agreeing with the trial court that
Vaskanyan’s trial counsel’s failure to challenge the seating of the juror was a “sound, reasonable,
strategic decision” and noting that trial counsel was an experienced criminal defense attorney

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who worked proactively to expose potential juror bias during the jury selection process. While
trial counsel did not recall the court’s examination of juror 4-13 or her reasons for not
challenging that particular juror, D. 16-2 at 8, she testified that she was an experienced criminal
defense attorney and would have requested that the court conduct further examination of juror 413 if she had concerns about his impartiality. Id. at 7-9. Trial counsel’s conclusion that her
failure to challenge the juror or request further examination related to her determination that the
juror would be good for her or her client, id. at 8-9, supported the state court findings that she
had not been ineffective.
Accordingly, Petitioner has not made a showing that trial counsel’s failure to challenge
juror 4-13 was so deficient that he was denied effective assistance of counsel and was deprived
of his right to a fair trial.

Strickland,

466 U.S. at 687.

In addition, Petitioner has not

demonstrated that, but for trial counsel’s seriously deficient conduct in failing to use an available
challenge to juror 4-13, the outcome of his proceeding would have been different. Id. at 694.
Accordingly, this Court cannot conclude that the Appeals Court decision involved an
unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1); Janosky,
594 F.3d at 46-47.
V.

Conclusion
For the aforementioned reasons, the Court DENIES Vaskanyan’s petition for a writ of

habeas corpus, D. 1, and GRANTS the motion to dismiss, D. 10, with prejudice as to grounds
one and two and without prejudice as to grounds three, four and five.

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

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