Alcequiecz v. Ryan

Filing 44

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. The Court DENIES Alcequiecz's amended petition for a writ of habeas corpus. [ECF No. 30]. The district court must issue or deny a certificate of appealability when it en ters a final order adverse to a habeas petitioner. Rules Governing § 2254 Cases, R. 11(a). Because Alcequiecz has not made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability here.SO ORDERED. A copy of this Order has been mailed to the Petitioner. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SPASSKY ALCEQUIECZ,
Petitioner,
v.
KELLY RYAN,
Respondent.

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Civil Action No. 1:14-cv-11693-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Petitioner Spassky Alcequiecz was convicted of murder in the first degree on a theory of
felony-murder pursuant to Mass. Gen. Laws ch. 265, § 1, armed burglary pursuant to Mass. Gen.
Laws ch. 266, § 14, and assault and battery by means of a dangerous weapon pursuant to Mass.
Gen. Laws ch. 265, § 15A(b). 1 Presently pending before this Court is Alcequiecz’s petition for a
writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. [ECF No. 1]. Having reviewed the
parties’ submissions, and construing Alcequiecz’s pleadings liberally because he is proceeding
pro se, this Court DENIES his petition for a writ of habeas corpus for the reasons set forth
below.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Massachusetts Supreme Judicial Court (“SJC”) provided an account of the facts as

the jury could have found them, which is summarized in relevant part below. See

1

Armed burglary was the predicate felony for felony-murder, which is an offense punishable by
life imprisonment. See Mass. Gen. Laws ch. 265, § 1. The Massachusetts Supreme Judicial Court
determined that “[t]he jury did not find the [Petitioner] guilty of murder in the first degree on the
theories of deliberate premeditation or extreme atrocity or cruelty” but on the theory of felonymurder, and set aside the conviction for armed robbery as duplicative of the felony-murder
conviction. Commonwealth v. Alcequiecz, 989 N.E.2d 473, 476 n.2 (Mass. 2013).

Commonwealth v. Alcequiecz, 989 N.E.2d 473, 476–79 (Mass. 2013). 2
Petitioner began dating Amanda Poisson in 2001. By early 2007, they, along with their
three-year-old son, Poisson’s nine-year-old daughter, and a family friend of Poisson’s, were
living in a house in Lynn, Massachusetts. The house was being renovated in March of 2007,
during which time Petitioner, Poisson, and the two minor children stayed elsewhere. During this
time, Poisson decided to end her relationship with Petitioner, so Petitioner moved to an
apartment in another city. Poisson and the children moved back to the house in Lynn after the
renovations were completed, and around this same time, Poisson began dating Carlos Mejia.
Although their relationship had ended, Petitioner and Poisson stayed in frequent contact.
They also continued to share vehicles, which they exchanged approximately every other day. In
April of 2007, Petitioner met Mejia for the first time at a birthday party for Poisson’s daughter.
Poisson did not tell Petitioner that she and Mejia were dating. One week later, Poisson engaged
in sexual intercourse with Petitioner at his apartment where she then spent the night. The
following morning, Poisson informed Petitioner that she did not want to rekindle their
relationship despite the events of the prior evening.
Thereafter, on April 19, 2007, Petitioner spent the evening drinking and using cocaine
with friends. At the same time, Mejia was visiting Poisson at her house in Lynn. At
approximately 3:18 a.m. on April 20, 2007, Petitioner called Poisson and asked if he could spend
the night at her house. After being told to go home, Petitioner responded that “the only reason
why [she] wouldn’t let him in the house is if somebody was there.” Poisson told Petitioner to go

2

“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Here, Petitioner does
not argue that the facts relied upon by the SJC were erroneous.
2

home a second time and hung up the phone. Petitioner called back, and Poisson again told him to
go home. Petitioner responded, “Did you forget that I have the keys to the house?”3 and hung up.
Id.
Poisson went downstairs, looked out the living room window, and saw Petitioner’s
vehicle parked outside. Petitioner was standing on the front porch. He then unlocked the front
door, but the door’s chain lock prevented him from entering the house. When Poisson declined to
join Petitioner outside to talk, he asked if anyone was inside with Poisson, and said that he would
leave if that were the case. Poisson then told Petitioner that Mejia was inside watching a movie.
Upon learning this information, Petitioner smashed several window panes above the front
door with a car battery charger pack that had been on the front porch. When Petitioner threatened
to break down the door, Poisson let him into the house. Petitioner then used the car battery
charger pack to strike Poisson in the head twice. When he tried to hit Poisson a third time, she
blocked the attempted blow with her arms.
Petitioner then went upstairs to Poisson’s bedroom where he found Mejia, and told him,
“This is what I wanted to see. I wanted to see you here in my house, in my bedroom.” Id. Carol
DeChristoforo, a family friend who was renting a room in the house, heard the commotion and
called 911. Petitioner left the house for a moment before returning to take his son, who he then
locked in a vehicle parked in the driveway. 4 While Petitioner was out of the house with his son,
Poisson joined her daughter, Mejia, and DeChristoforo in DeChristoforo’s bedroom on the
second floor of the house. She was dizzy and bleeding from her head, and told DeChristoforo
3

The key rings to the vehicles that Poisson and Petitioner shared each had a key to Poisson’s
house.
4
The vehicle was one of the two cars that Poisson and Petitioner shared. The SJC reasoned that
although Poisson had been using the vehicle at the time, the jury could have inferred that
Petitioner was familiar with her practice of hanging the car keys on a hook in the kitchen from
when he lived with Poisson in the same house.
3

that she needed an ambulance. DeChristoforo placed a second call to 911.
Petitioner then returned to the house, went upstairs holding a thirteen-inch kitchen knife,
and attempted to force his way into DeChristoforo’s bedroom while Mejia tried to use his body
to hold the bedroom door closed. 5 Poisson hid in the closet in DeChristoforo’s bedroom.
Petitioner managed to force the door open enough to reach in with his right arm and swing the
knife at Mejia as Mejia continued to try to hold the door closed. Eventually, Petitioner was able
to push his upper body through the partially open door. Petitioner then looked at Mejia, swung
the knife one last time, and pulled his arm out. Mejia, covered in blood, slid down the wall onto
the floor.
As Petitioner descended the stairs, he shouted, “Yeah, I did it. Yeah, I did it.” As two
officers entered the house, they encountered Petitioner, who was still holding the knife. The
officers ordered Petitioner to put down the knife and he tossed it onto the couch. After Poisson
attempted to assist an officer who was attending to Mejia’s wounds, she went downstairs and
saw Petitioner in handcuffs. Poisson told Petitioner that he had probably killed Mejia and
Petitioner replied, “You cheated on me. You’re a whore.” On the way to the police station,
Petitioner asked one of the officers, “What would you do if you found your girl with someone
else in your home?” Petitioner then answered his own question, saying he would do “whatever it
took,” even if it put him away for “the longest time.” Petitioner also said that he “just cut him
once a little bit.”
Mejia suffered four stab wounds and died from blood loss after being transported to the
hospital. Poisson suffered a laceration to the left side of her head that required seventeen staples
as a result of being struck twice by the car battery charger pack.
5

At some point before the Petitioner came upstairs, DeChristoforo heard him in the hallway
saying, “If I had a fucking gun, I’d kill you all.”
4

On May 30, 2007, Petitioner was indicted by a grand jury for murder in the first degree,
armed robbery, and assault and battery with a dangerous weapon. Following a trial by jury,
Petitioner was found guilty of all three counts. The trial judge sentenced Petitioner to life in
prison for first-degree murder and to a concurrent term of nine to ten years for assault and battery
by means of a dangerous weapon. [ECF No. 33 at 7]. The Petitioner filed a motion for a new trial
on August 11, 2010, which was denied by the trial judge following a hearing. Id. at 9–10. The
direct appeal of his convictions and his motion for a new trial were consolidated before the SJC,
where Petitioner presented three claims: (1) that counsel was constitutionally ineffective on
numerous grounds; (2) that the Commonwealth made an improper closing argument; and (3) that
the conviction for armed burglary was duplicative of the predicate felony underlying his
conviction for felony-murder. Alcequiecz, 989 N.E.2d at 476. The SJC affirmed the convictions
for first-degree murder and assault and battery by means of a dangerous weapon, and dismissed
the conviction of armed burglary as duplicative. Id. at 482–83.
On April 7, 2014, Petitioner filed a petition for federal habeas corpus review of his state
court conviction, raising four claims [ECF No. 1], and requesting that the case be stayed pending
the exhaustion of his state court remedies [ECF No. 2]. This Court granted a stay on June 9,
2014, at which time Petitioner filed a second motion for a new trial in state court, claiming that
his convictions should be vacated because there was newly discovered evidence and his trial
counsel had been ineffective for failing to investigate this evidence. [ECF No. 7]. The state court
denied his motion for a new trial, and his petition for leave to appeal was denied by a single
justice of the SJC because Petitioner did not present a “new and substantial question which ought
to be determined by the full court.” S.A. at 201. 6 At that time, Petitioner moved to lift the stay in
6

Respondent’s Supplemental Answer, which was filed manually on January 15, 2016, will be
referred to as “S.A.”
5

federal court [ECF No. 20], and filed a memorandum of law in support of his petition for federal
habeas corpus review [ECF No. 21]. The stay was lifted on August 6, 2015. [ECF No. 22].
Thereafter, this Court ordered Petitioner to file an amended petition [ECF No. 27], which he did
on December 14, 2015, [ECF No. 30]. Respondent filed an answer on January 15, 2016. [ECF
No. 32]. Petitioner filed a memorandum of law in support of his amended petition on April 11,
2016 [ECF No. 36], and Respondent filed a memorandum of law in opposition on August 31,
2016 [ECF No. 40].
II.

LEGAL STANDARD
A federal district court’s review of a state criminal conviction is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA permits a
federal court to grant habeas relief after a final state adjudication of a federal constitutional claim
only if the adjudication:
(1) 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 (2) 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).
A state court decision is “contrary to” clearly established Supreme Court precedent if: (1)
the state court reaches a conclusion opposite that reached by the Supreme Court on a question of
law; or (2) the state court confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a different conclusion. Williams v.
Taylor, 529 U.S. 362, 405–06 (2000). A state court decision is considered an “unreasonable
application” of Supreme Court precedent if the state court identifies the correct legal rule but
unreasonably applies it to the facts. Id. at 413. An unreasonable application requires “some

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increment of incorrectness beyond error.” Norton v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003)
(quoting McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)). It requires that the petitioner
show that the state court decision applied clearly established law in a way that was “objectively
unreasonable.” Sanchez v. Roden, 753 F.3d 279, 299 (1st Cir. 2014). Thus, to obtain habeas
relief, “a state prisoner must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington
v. Richter, 562 U.S. 86, 103 (2011).
III.

DISCUSSION
In his amended petition, Alcequiecz presents three grounds for federal habeas relief: (1)

that the SJC’s rejection of his ineffective assistance of counsel claim was an unreasonable
application of federal law; (2) that there was insufficient evidence to convict him of felonymurder and armed burglary; and (3) that his trial counsel was constitutionally ineffective because
he failed to properly investigate the case and call critical witnesses to support Petitioner’s
defense.
A.

Ground One: Unreasonable Application of Strickland

In his first ground for relief, Petitioner claims that the SJC unreasonably applied clearly
established Supreme Court precedent in finding that his counsel was not constitutionally
ineffective for failing to request jury instructions on provocation for felony-murder. The
Supreme Court set forth the standard for ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, trial counsel is ineffective such that his
performance violates a client’s Sixth Amendment right to counsel if (1) “counsel’s representation
fell below an objective standard of reasonableness” and (2) “deficiencies in counsel’s

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performance [were] prejudicial to the defense.” Strickland, 466 U.S. at 688, 692. Even if a
lawyer’s performance is constitutionally unacceptable, relief must be withheld unless the
petitioner also demonstrates prejudice, meaning that “but for counsel’s unprofessional error,
there is a reasonable probability that the result of the proceeding would have been different.”
Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. The Strickland standard is broadly
deferential to the strategic and tactical decisions of trial counsel, making them “virtually
unchallengeable.” Id. at 689–90. Further, “where the petitioner’s claim was adjudicated on the
merits by the state court . . . petitioner must also satisfy the AEDPA standard. Yeboah-Sefah v.
Ficco, 556 F.3d 53, 70 (1st Cir. 2009). Thus, “to establish constitutionally ineffective assistance
of counsel as a ground for federal habeas relief, the petitioner bears a doubly heavy burden”
because the petitioner must contend with both the deferential Strickland standard and the
deferential standard required by § 2254. Id.
In this case, the SJC’s application of Strickland to Petitioner’s ineffective assistance of
counsel claim was not objectively unreasonable. Massachusetts courts apply the “substantial
miscarriage of justice” standard to ineffective assistance claims, which is “more favorable to the
defendant than the constitutional standard articulated in Strickland.” Kirwan v. Spencer, 631
F.3d 582, 590 n.3 (1st Cir. 2011); Commonwealth v. Wright, 584 N.E.2d 621, 624 (Mass. 1992).
Here, after a careful examination of the jury instructions for all charges, the SJC reasonably
determined that Petitioner’s trial counsel was not constitutionally ineffective in failing to request
an instruction on provocation because it is well-established in Massachusetts that “[e]vidence of
provocation . . . is not a proper basis on which to reduce a conviction of felony-murder.”
Alcequiecz, 989 N.E.2d at 480 (quoting Commonwealth v. Rolon, 784 N.E.2d 1092 (Mass.

8

2003)). This is so because “provocation deemed adequate in law to cause the accused to lose his
self-control in the heat of passion” is viewed as negating malice, reducing the killing from
murder to manslaughter. Commonwealth v. Vinton, 733 N.E.2d 55, 63 (Mass. 2000) (internal
quotations and citation omitted). For felony-murder, however, “the intent to commit the
predicate felony substitutes for malice.” Rolon, 784 N.E.2d at 1105. Thus, evidence of
provocation in felony-murder “would not in any sense detract from evidence that the defendant
committed the predicate felony,” id., and is therefore “not germane to felony-murder.”
Commonwealth v. Smith, 946 N.E.2d 95, 109 (Mass. 2011). Here, the SJC reasonably
determined that Petitioner’s trial counsel, under the prevailing professional norms, was not
constitutionally deficient in failing to request a provocation instruction for felony-murder
because the well-established state law on the issue did not provide for provocation instructions
under the circumstances. See Wiggins v. Smith, 539 U.S. 510, 521 (“the proper measure of
attorney performance remains simply reasonableness under prevailing professional norms”); see
also Hensley v. Roden, 755 F.3d 724, 737 (1st Cir. 2014) (“To prevail under Strickland,
counsel’s choice must have been ‘so patently unreasonable that no competent attorney would
have made it.’” (quoting United States v. Rodriquez, 675 F.3d 48, 56 (1st Cir. 2012))). Thus, it
was not unreasonable for the SJC to have determined that it was not ineffective assistance of
counsel when a competent attorney failed to request instructions that did not apply. 7
Even assuming Petitioner had shown that the SJC was unreasonable in determining that
his counsel was not deficient, he has not proven that he was prejudiced by his attorney’s decision

7

A federal habeas court defers to a state court’s interpretation of state law. See, e.g., Bradshaw
v. Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of state law . . . binds a federal
court sitting in habeas corpus”); Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“it is not the
province of a federal habeas court to examine state-court determinations on state-law
questions”).
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not to request a provocation instruction. Petitioner has not presented any indication that
requesting the desired instruction would have affected the outcome of his trial because even if
trial counsel had requested the provocation instruction, the trial judge would not have been
required to give it. Further, the trial judge did instruct the jury on provocation for the alternative
theories of murder in the first degree by extreme cruelty or atrocity or by premeditation and of
murder in the second degree. Alcequiecz, 989 N.E.2d at 479 n.9. With the instruction for
provocation already explained to the jury, it is not likely that the jury would have changed its
verdict even if it had received an additional provocation instruction for the theory of felonymurder. See Wright v. Marshall, 656 F.3d 102, 111 (1st Cir. 2011) (rejecting ineffective
assistance claim and noting that “[j]ury instructions must be viewed as a whole, not as individual
provisions in isolation.”) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)). Under the doubly
deferential standard for ineffective assistance claims required by the AEDPA, this Court finds
that the SJC’s decision did not involve an unreasonable application of Strickland.
B.

Ground Two: Insufficient Evidence

Petitioner next contends that there was insufficient evidence to convict him of felonymurder and the predicate offense of armed burglary because he had a lawful right to enter the
house. Respondent avers that Petitioner is not entitled to habeas relief on this ground because the
claim was procedurally defaulted in state court.
“[T]he fact that a claim is procedurally defaulted in state court is an adequate and
independent state ground precluding federal habeas relief.” Hodge v. Mendonsa, 739 F.3d 34, 43
(1st Cir. 2013) (quoting Walker v. Russo, 506 F.3d 19, 21 (1st Cir. 2007)). “Grounded in comity
and federalism, the procedural default rule bars § 2254 habeas relief ‘when a state court declined
to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural

10

requirement.’” Powell v. Tompkins, 783 F.3d 332, 344 (1st Cir. 2015), cert. denied, 136 S. Ct.
1448 (2016) (quoting Coleman v. Thompson, 501 U.S. 722, 729–30). “To be considered an
adequate ground to bar habeas review, the state procedural rule that is the basis for a procedural
default ruling must be regularly and consistently enforced by the state courts.” Pina v. Maloney,
565 F.3d 48, 53 (1st Cir. 2009) (internal quotation marks omitted). A cognizable procedural
default bars an inquiry into the merits of the claim unless a petitioner demonstrates cause and
prejudice, or makes a rare showing of a miscarriage of justice. Wainwright v. Sykes, 433 U.S.
72, 86–87, 91 (1977).
In this case, Petitioner attempted to raise the insufficient evidence claim in his second
motion for a new trial in the state Superior Court, but the claim was procedurally defaulted
because he failed to advance it until it was too late. Mass. Gen. Laws ch. 278, § 33E “requires
that the defendant present all his claims of error at the earliest possible time, and failure to do so
precludes relief on all grounds generally known and available at the time of trial or appeal.”
Costa v. Hall, 673 F.3d 16, 23 (1st Cir. 2012). “Under Massachusetts law, a claim is not new
within the meaning of § 33E where it has already been addressed, or where it could have been
addressed had the defendant properly raised it at trial or on direct review.” Id. (internal
quotations and citation omitted). Despite the fact that Petitioner did not raise the insufficient
evidence claim in his direct appeal and it was therefore procedurally defaulted, the SJC
nevertheless addressed the sufficiency of the evidence pursuant to the court’s statutory duty
under Mass. Gen. Laws ch. 278, § 33E, which requires the court to consider “any . . . reason that
justice may require” for setting aside the verdict. The SJC determined that the evidence was
sufficient to support the armed burglary conviction. Alcequiecz, 989 N.E.2d at 480 n.12. Under
state law, once the Petitioner’s appeal has been decided, a Superior Court decision denying a

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subsequent motion for a new trial is not appealable “unless the appeal is allowed by a single
justice of the supreme judicial court on the ground that it presents a new and substantial question
which ought to be determined by the full court.” Mass. Gen. Laws ch. 278, § 33E. Here, a single
Justice of the SJC denied Petitioner leave to appeal, because he had not presented “a new and
substantial question which ought to be determined by the full court.” S.A. at 255. “A Single
Justice’s finding that a petitioner has not raised a ‘new-and-substantial’ question for further
review constitutes a finding of procedural default under state law” and is an “independent and
adequate state ground” precluding habeas relief. Costa, 673 F.3d at 23 (quoting Mendes v.
Brady, 656 F.3d 126, 129, 131 (1st Cir. 2011)). Accordingly, the insufficient evidence claim was
procedurally defaulted under state law, precluding habeas review on the merits.
“In order to escape from the preclusive effect of his procedural default, [Petitioner] is
obligated to show both cause for, and prejudice from, his noncompliance with the
Commonwealth’s . . . rule.” Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994) (alteration
omitted). The existence of cause for a procedural default ordinarily turns on whether the
petitioner can show that an “objective factor external to the defense” impeded his ability to
comply with the rules. Murray v. Carrier, 477 U.S. 478, 479 (1986). Although ineffective
assistance of counsel can constitute cause, counsel’s simple failure to recognize a claim or
procedural rule cannot. Id. at 486 (“[T]he mere fact that counsel failed to recognize the factual or
legal basis for a claim . . . does not constitute cause for a procedural default.”). In addition to
cause, Petitioner must show prejudice. See Ortiz, 19 F.3d at 714 (1st Cir. 1994). “To scale this
wall, a petitioner must demonstrate ‘not merely that the errors [ ] . . . created possibility of
prejudice, but that they worked to his actual and substantial disadvantage.’” Id. (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)). Lastly, Petitioner can avoid his procedural default by

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showing that a substantial miscarriage of justice has occurred. Burks v. Dubois, 55 F.3d 712, 717
(1st Cir. 1995). Miscarriage of justice “is a narrow exception to the cause-and-prejudice
imperative, seldom to be used, and explicitly tied to a showing of actual innocence.” Id.
Here, Petitioner has not attempted to show cause for or prejudice arising from his
procedural default, and has not attempted to assert a claim of actual innocence. Further, there is
nothing in the record that shows that some “objective factor external to the defense” impeded
Petitioner’s ability to comply with the rule in this case. 8 Petitioner also cannot demonstrate that
the procedural default worked to his actual and substantial disadvantage because the SJC
addressed the argument on direct appeal, despite it not being raised. See Alcequiecz, 989 N.E.2d
at 481 n.12. Accordingly, Petitioner cannot demonstrate cause for or prejudice from his
procedural default, or actual innocence, which would excuse his procedural default here. 9 To the
extent that his claims regarding the sufficiency of the evidence relate to his arguments regarding
“new evidence” and ineffective assistance of counsel, the Court will address the claim below.

8

It does not appear that Petitioner has argued or attempted to show an ineffective assistance
claim to excuse his procedural default on this ground, however, to the extent that his pro se
petition can be liberally construed to present this argument, it is unavailing. Although ineffective
assistance can constitute cause, “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.” Murray v. Carrier, 477 U.S. 478, 486 (1986).
9
To the extent that Petitioner is arguing an unreasonable application of Jackson v. Virginia, 443
U.S. 307 (1979), which governs insufficient evidence claims, the argument is unavailing. The
SJC considered the issue of its own accord pursuant to Mass. Gen. Laws ch. 276, § 33E and
determined that “the jury reasonably could have found that Petitioner committed an armed
burglary by breaking and entering the dwelling of another in the night time with the intent to
commit a felony therein . . . that [the victim] was lawfully inside the dwelling, and that the
defendant was armed with a dangerous weapon at the time of breaking and entering.”
Alcequiecz, 989 N.E.2d at 481 n.12. It was not objectively unreasonable to find that a rational
trier of fact could have found Petitioner guilty beyond a reasonable doubt given the
overwhelming evidence supporting each element of the crimes for which he was convicted. See
Jackson, 443 U.S. at 319 (relevant test is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt”).
13

C.

Ground Three: Ineffective Assistance of Counsel for Failing to Investigate
and Call Particular Witnesses

Petitioner also asserts that he was denied his constitutional right to effective assistance of
counsel because trial counsel did not call Poisson’s parents to the stand to establish that
Petitioner was a lawful occupant of the dwelling when he entered and stabbed Meija. 10
Respondent asserts that this claim is also procedurally defaulted.
Respondent is correct that there is an independent and adequate state ground precluding
habeas relief because, like the claim discussed above, Petitioner did not present a “new and
substantial question” to the SJC. See Costa, 673 F.3d at 24. Thus, the merits of Petitioner’s claim
can only be considered if he can show cause for and prejudice from the procedural default.
Lynch v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006).
In this instance, to show cause, Petitioner would need to demonstrate that some
“objective factor external to the defense” prevented the Petitioner or his counsel from raising this
argument in the first appeal to the SJC or in the first motion for a new trial. See Murray, 477 U.S.
at 488. Petitioner contends that the external factor that resulted in procedural default is that the
evidence, in the form of an affidavit from Poisson’s parents that affirms he was paying rent to
them, was newly discovered. The trial judge, however, determined that “the ‘newly discovered
evidence’ is not newly discovered at all” and that “the [Petitioner] concedes that it was known to
him and trial counsel at the time of trial.” S.A. at 208. Not only is the evidence not new, it
merely reiterates the arguments already raised at trial regarding Petitioner’s lawful right to enter
the house, which the jury rejected. Any additional evidence would have been cumulative, as
Petitioner concedes that the “entire trial strategy [was] that the petitioner had a lawful and
10

Petitioner contends that counsel told Petitioner that he would call Poisson’s parents as
witnesses at trial, but that he failed to hire a private investigator to locate them. [ECF No. 36 at
56–57].
14

rightful occupancy” in the dwelling. [ECF No. 36 at 51]. Accordingly, he has failed to
demonstrate cause here.
Further, “[b]ecause [Petitioner] has procedurally defaulted his ineffective assistance of
counsel claims in state court, he cannot simply rely on what is at the heart of the merits of those
claims, the alleged ineffectiveness, to show cause for procedural default of the same claims.”
Costa, 673 F.3d at 25. “Federal habeas courts do not exempt ineffective assistance of counsel
claims from the general rule requiring cause and prejudice for procedural default, because to do
so would render the exhaustion requirement ‘illusory.’” Id. This is true when a petitioner seeks to
“excuse the procedural default of his ineffective assistance of counsel claim by pointing merely
to another layer of ineffectiveness.” Id. Further, Petitioner’s claim would fail because trial
counsel made a strategic choice not to call Poisson’s parents as witnesses. Especially because
Poisson was a victim of the crimes at issue, trial counsel had to carefully weigh the potential
benefit of the parents’ testimony, which would have been duplicative of other evidence offered
by Petitioner, against potential disadvantages, including making Poisson’s parents available for
cross-examination. See Horton v. Allen, 370 F.3d 75, 86 (1st Cir. 2004) (“The decision whether
to call a particular witness is almost always strategic, requiring a balancing of the benefits and
risks of the anticipated testimony.” (quoting Lema v. United States, 987 F.2d 48, 54 (1st Cir.
1993))). Thus, with respect to ground three, the Court is barred from granting habeas relief on
independent and adequate state law grounds.
D.

Additional Claims

Petitioner appears to raise two new claims in his memorandum of law in support of the
amended petition. He contends that his counsel was constitutionally ineffective because counsel
(1) failed to argue that the underlying felony, armed burglary, was not connected to the murder

15

because it had finished minutes before the murder; and (2) failed to request a jury instruction
explaining what murder “in connection with” a felony meant. Respondent avers that these two
arguments are waived because Petitioner did not present them in the original petition for habeas
corpus.
Rule 2(c) of the Rules Governing Habeas Corpus Cases require a petition to: “(1) specify
all the grounds for relief available to the petitioner; (2) “state the facts supporting each ground;
[and] (3) state the relief requested.” Sullivan v. Saba, No. 10-CV-30194-MAP, 2012 WL
1409530, at *2 (D. Mass. Apr. 20, 2012). “It is the petition for a writ of habeas corpus, not
subsequently filed memorandum, which defines the claim for habeas relief.” Smiley v. Maloney,
No.01-11648-GAO, 2003 WL 23327540, at *16 n.39 (D. Mass. Oct. 31, 2003), aff’d, 422 F.3d
17 (1st Cir. 2005).
Here, Petitioner presented only three claims for habeas relief in his petition to the Court,
each of which has been addressed above. 11 Accordingly, Respondent is correct that Petitioner’s
two additional claims have been waived, thereby precluding the Court from granting relief on
those grounds. See, e.g., McGee v. Medeiros, No. 15-11498-LTS, 2016 WL 837930, at *5 n.3
(D. Mass. Mar. 2, 2016) (finding that failure to raise claim in petition precluded court from
granting relief on that basis); Fencher v. Roden, No. CIV.A. 13-11937-RGS, 2015 WL 4111329,
at *8 (D. Mass. July 8, 2015) report and recommendation adopted, No. CIV.A. 13-11937-RGS,
2015 WL 4111329, at *1 (D. Mass. July 8, 2015) (Petitioner’s new grounds for relief were
barred because they were not included in the original petition but were presented for the first
time in the accompanying memorandum of law); Sullivan, 2012 WL 1409530, at *2 (same).

11

The Court refers to Petitioner’s amended petition. [ECF No. 30]. The original petition for
habeas included four grounds for relief, but the fourth ground is not one of the two new claims
raised for the first time in his subsequent memorandum of law. [ECF Nos. 1, 30, 36].
16

Even assuming that Petitioner’s ineffectiveness claims were not waived, he would
nonetheless fail to satisfy the doubly deferential standard required under Strickland and the
AEDPA. Yeboah-Sefah, 556 F.3d at 70. In Massachusetts, a killing constitutes felony-murder if
it occurs “in the commission or attempted commission of a [predicate felony].” Mass. Gen. Laws
ch. 265, § 1. The SJC has consistently held that this means that the killing must occur “in
connection with the felony and at substantially the same time and place.” Rolon, 784 N.E. 2d at
1102 n.11 (quoting Model Jury Instructions on Homicide 16, 17–18 (1999)). Here, the SJC noted
that Petitioner stabbed Meija only minutes after breaking into the house, and that the entire span
of events took place in less than nine minutes. Alcequiecz, 989 N.E.2d at 481. It then reasonably
determined that, because there was ample evidence that Petitioner killed Meija in the
commission of the armed burglary and that these events were “a single transaction consisting of
an unbroken sequence of events,” counsel was not ineffective in failing to make an argument that
had a “minimal chance of success.” Id. The SJC’s determination that trial counsel was not
constitutionally ineffective was not objectively unreasonable in this case. See, e.g., Robidoux v.
O’Brien, 643 F.3d 334, 344 (1st Cir. 2011) (finding no ineffective assistance for failing to argue
defenses due to a lack of possible success); Acha v. United States, 910 F.2d 28, 32 (1st Cir.
1990) (“Trial counsel [is] under no obligation to raise meritless claims. Failure to do so does not
constitute ineffective assistance of counsel.”).
For the same reason, Petitioner is not entitled to relief on the claim that his counsel
should have sought additional instructions as to what murder “in connection with” a felony
entailed. In this case, the SJC carefully examined the trial judge’s instructions for the felonymurder charge, which aligned with the Model Jury Instructions on Homicide 15–17 (1999).
Alcequiecz, 989 N.E.2d at 482. It was not objectively unreasonable for the SJC to find that

17

“[b]ecause there was no error in the judge’s instructions, trial counsel’s failure to . . . request
clarifying instructions could not have been ineffective.” Id. Again, declining to pursue arguments
with a minimal chance of success does not amount to ineffective assistance of counsel. Vieux v.
Pepe, 184 F.3d 59, 64 (1st Cir. 1999) (failing to pursue a futile tactic does not result in deficient
performance). Thus, Petitioner’s two arguments were waived, but even assuming that the
arguments were not waived, he has failed to show that the SJC’s application of Strickland was
objectively unreasonable.
IV.

CONCLUSION
Accordingly, the Court DENIES Alcequiecz’s amended petition for a writ of habeas

corpus. [ECF No. 30]. “The district court must issue or deny a certificate of appealability when it
enters a final order adverse to” a habeas petitioner. Rules Governing § 2254 Cases, R. 11(a).
Because Alcequiecz has not made “a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability here.
SO ORDERED.
May 30, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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