Blake v. Medeiros

Filing 43

Judge Indira Talwani: ORDER entered ACCEPTING and ADOPTING re: 40 Report and Recommendation. The 1 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RONALD BLAKE,
Petitioner,
v.
SEAN MEDEIROS,
Defendants.

*
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*
*
*
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*
*

Civil Action No. 14-cv-11845-IT

ORDER
September 14, 2017
TALWANI, D.J.
After considering the Magistrate Judge’s August 28, 2017, Report and Recommendation
[#40], and noting that there has been no objection, the court hereby ACCEPTS and ADOPTS the
Report and Recommendation [#40] for the reasons set forth therein. Petitioner Ronald Blake’s
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus [#1] is DENIED.
IT IS SO ORDERED.
/s/ Indira Talwani
United States District Judge

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

RONALD BLAKE,
Petitioner,
No. 14-CV-11845-IT
v.
SEAN MEDEIROS,
Respondent.

REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No. 1)

CABELL, U.S.M.J.
I.

INTRODUCTION
Ronald

incarcerated

Blake
at

(“Blake”

the

or

“the

Massachusetts

petitioner”)

Correctional

is

currently

Institution

in

Norfolk following his 2007 state court conviction for armed assault
with intent to murder, armed robbery, assault and battery, and
assault and battery with a dangerous weapon.

He seeks habeas

relief under 28 U.S.C. § 2254, on two grounds.

He argues first

that the trial court erred in refusing to suppress evidence of an
impermissibly suggestive identification procedure.

He argues also

that his trial counsel provided ineffective assistance by failing
to adequately investigate or challenge the prosecution’s timeline
of events.

(Dkt. No. 1).

After careful consideration of the

1

records, it is recommended that the Petition for Writ of Habeas
Corpus be DENIED.
II.

RELEVANT BACKGROUND

A. The Underlying Crime
As summarized by the Massachusetts Appeals Court, the jury
could have found the following facts: 1
The convictions in these cases arose from the beating
and robbery at knife point of Gregory Kendrick in the
early morning hours of June 3, 2006.
Kendrick was
employed as a cab driver by Bluebird Cab Company located
in New Bedford.
Based on the evidence presented at
trial, the jury could have found that Kendrick picked
up the defendants just before 5:00 A.M. and drove them
to Reynolds Street in New Bedford. Kendrick estimated
that the ride took between seven and eight minutes.
Upon arriving at the Reynolds Street address, the
defendants robbed Kendrick and then drove the cab to
Sullivan Drive in Westport where they left Kendrick on
the side of the road, bleeding from a stab wound to
the arm.
Kendrick managed to seek assistance at a
nearby fire station and was transported to [St. Luke’s
hospital in New Bedford]. Meanwhile, a security camera
at the Fall River Pier recorded the arrival of
Kendrick’s cab containing two men at 5:11 A.M. and
their departure on foot several minutes after, wearing
clothing similar to the defendants’ at the time of
arrest. The cab was later found parked behind the Water
Street Café, at 36 Water Street in Fall River.
Commonwealth v. Gomes, Nos. 10–P–2235, 12–P–767, 2014 WL 470361,
at *1 (Mass. App. Ct. February 7, 2014).

1

In habeas proceedings filed by a prisoner in state custody, “a determination
of factual issues by the State court should be presumed to be correct.” 28
U.S.C. § 2254(e)(1).
The petitioner has “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” Id. Although
Blake does in one instance noted below question whether the identification
procedure occurred later than the prosecution claims it did, he does not here
challenge the underlying facts themselves.

2

B. The State Court Proceedings
On July 14, 2006, the grand jury indicted Blake and a codefendant, Jorge Gomes, on charges of: (1) armed assault with
intent to murder; (2) armed robbery; (3) assault and battery; (4)
assault and battery with a dangerous weapon; and (5) kidnapping.
(Dkt. 15, Volume I, S.A. 4; hereinafter [S.A. [page]). 2
On May 24, 2007, the petitioner moved to suppress an out-ofcourt identification that was based on a single photograph.
5, 78-84).

(S.A.

The relevant facts as found by the trial court on this

issue (and as subsequently implicitly adopted by the Appeals Court
(S.A. 127)) are as follows:
After leaving the scene, [Westport Police Seargent]
Sullivan accompanied by Westport Police Sergeant
Cestidio (“Cestidio”), proceeded to St. Luke’s Hospital
in New Bedford and spoke to the victim.
He was in
contact and alert. He confirmed the description of the
assailants as one dark skinned and one light skinned.
The officers then went to the Bluebird Cab Company and
determined that the victim’s last pick up was at
103 Ruth Street in New Bedford. They then proceeded
to Ruth Street. Before they entered 103 Ruth Street, an
unknown older woman on the sidewalk told them that they
should check the third floor.
The identity of this
person was not subsequently determined.
103 Ruth Street was a three story residential
building with an apartment on each floor and a common
2

The pertinent state court documents are contained in the Commonwealth's
Supplemental Answer, which is separated into three volumes. (Dkt. 15). The
first volume contains various documents bates stamped sequentially, and for
ease of identification will be cited as (S. A. [page]). Volumes two and three
contain the transcripts from the trial and will be cited as Dkt. No. 15, Volume
II, Transcript Volume [], pg. [], (hereinafter V. II, Tr. V.[], pg.[]) and Dkt.
No. 15, Volume III, Transcript Volume [], pg.[] (hereinafter V. III, Tr. V.[],
pg.[]).

3

entry way. The officers entered the building and walked
up to the third floor landing, knocked on apartment
3 and a female opened the door. The female, who
identified herself as “Paula,” was later identified as
Paula Calisto.
She said she was the tenant of the
apartment.
The officers asked Paula if there was anyone else
in the apartment, to which she answered, “No one.”
Cestidio asked her what was behind a closed door he could
see from the entry way.
She said she had a friend
inside. The officers asked if she minded if they could
check, and she replied, “Not at all.”
Upon the door
being opened, the officers found the defendants sleeping
on a large bed. They were dressed. The officers woke
up the defendants, but it took them about 10 minutes to
rouse themselves effectively from sleep.
The defendants and their clothing matched
general description Sullivan had been given of
assailants.

the
the

After the defendants pulled themselves together,
the officers spoke with them separately for about 15-20
minutes. Cestidio spoke with Gomes and Sullivan spoke
with Blake.
had
done
the
prior
night,
Asked
what
he
Blake said that they had gone to a couple of
friends’ houses. Asked by Sullivan whether they had
taken a cab, Blake answered affirmatively.
No
Miranda
warnings
were
given,
Sullivan
stated, because the defendants at that point were
not in custody.
The defendants were then asked whether it was okay
for the officers to take their pictures. They consented,
and digital pictures were taken. The officers then left
the premises and returned to the Westport Police
headquarters, where the digital images were downloaded
and printed as 8½” x 11” color images.

4

Meanwhile the victim was released from the hospital
and was transported to the Westport P.D.
When
the
victim arrived at the police station around 1
p.m.,
Sullivan
showed
the
victim
the
two
photographs
and
asked
him
if
he
knew
the
individuals. The victim immediately responded, “Those
are the two that attacked me.”
As to why he did not arrange an array of
photos before showing the two pictures to the
victim, Sullivan said that to do so would have taken
about an hour to an hour and a half, and he believed
that to wait would have compromised the investigation.
The defendants were not in the Westport Police’s “inhouse” photo ID system. Sullivan would have to have
accessed the Registry of Motor Vehicles system.
The Registry’s and the Westport in-house photos
have
different
background
colors
to
the
photo
images obtained of the defendants, so the fresh photos
of the defendants would have stood out.
Once the victim made the identification, the
Westport officers went to the New Bedford Police
Department for assistance and then proceeded to
103 Ruth St. to arrest the suspects. At 103 Ruth
St., officers knocked and Paula once again answered the
door and let them in. Police found only Blake in the
apartment with Paula. Blake was arrested. Gomes was
arrested later.
Commonwealth v. Blake, Nos. BRCR2006-0851, BRCR2006-0852, 2007 WL
3104405, at *1-2, (Mass. Sup. Ct. August 10, 2007).
On August 10, 2007, the trial court denied the motion to
suppress.

Id. at *1.

The court concluded that the single photo

procedure was not unreasonable under the circumstances because
exigent circumstances warranted acting quickly:
Here, the police had good cause to proceed with a one on
one show up.
At that juncture two armed highjackers
were at large who had stabbed a kidnapped victim, under
circumstances consistent with an intent to kill him.
5

The police acted reasonably in concluding that a prompt
identification by the victim using fresh photo images
was necessary to allow police to investigate the crime
with speed, efficiency and accuracy. Had the victim not
identified the defendants in the pictures, the police
would have been able to exclude them as suspects and
follow other leads to get the actual perpetrators.
Additionally, although the police could have
created a wider photogenic array, there would have been
delay of a least an hour to do so. Given the proximity
in time between the crime and when the police took the
pictures of the suspects, it was likely that their
physical appearance caught in the photos was the same as
it had been at the time of the crime. Thus, it was also
likely that if the suspects were in fact the assailants,
the victim would have been able most reliably to identify
them at that juncture. The more time passed, the more
remote the victim’s memory would become and the more
likely that he be exposed to “other images”, which would
have increased the risk of a false identification.
Id. at *5.
On November 30, 2007, the jury convicted the petitioner and
Gomes on all counts.

(S.A. 7).

The petitioner appealed his conviction inter alia on the
ground that the trial judge erred in refusing to suppress evidence
of the identification.

(S.A. 39).

On December 31, 2010, the

Massachusetts Appeals Court affirmed his conviction after finding
that the identification procedure did not violate his due process
rights.

Commonwealth v. Blake, No. 09-P-1501, 2010 WL 5464847

(Mass. App. Ct. December 31, 2010).
that

“even

were

the

defendant

able

The Appeals Court reasoned
to

.

.

.

show

that

the

identification procedure was unnecessarily suggestive,” he still
could not prevail because the judge could properly find (as he
6

did) that the police had a good reason to conduct the showup in
the way that they did.
identification

would

circumstances.”
Mass.

357,

The situation was urgent, and prompt
be

fairly

deemed

necessary

in

the

Id. at *1 (citing Commonwealth v. Austin, 421

361-362

(Mass.

1995)).

On

March

31,

2011,

the

Massachusetts Supreme Judicial Court (SJC) denied the petitioner’s
request for further appellate review.

Commonwealth v. Blake, 459

Mass. 1107, 944 N.E.2d 1043 (Table) (Mass. March 31, 2011).
On January 27, 2011, shortly after the Massachusetts Appeals
Court affirmed the petitioner’s conviction, and just before the
SJC denied his request for further review, the petitioner moved in
the superior court to join Gomes’ motion for a new trial.
328).

(S.A.

The petitioner also moved separately for a post-verdict

required finding of not guilty or a new trial.

(S.A. 339).

November 28, 2011, the superior court denied both motions.

On

(S.A.

220-234). On February 7, 2014, and following appeals by both Gomes
and the petitioner, the Appeals Court affirmed the superior court’s
rulings, and the SJC subsequently denied the request for further
appellate review.

Gomes, 2014 WL 470361, at *3; Blake, 467 Mass.

1106, 6 N.E.3d 547 (Table) (Mass. April 2, 2014).
C. The Habeas Petition
On April 28, 2014, the petitioner filed the present habeas
petition.

It asserts four claims for relief.

Paraphrasing, Claim

One alleges that the single photo identification procedure the
7

officers

used

was

unnecessarily

petitioner’s right to due process.

suggestive

and

violated

the

Claim Two alleges that there

was insufficient evidence to prove the petitioner’s guilt.
Three alleges that the prosecutor committed misconduct.

Claim

Finally,

Count Four alleges that the petitioner’s trial counsel provided
ineffective assistance by failing to successfully challenge the
prosecution’s offered timeline of events.
Since filing his petition, however, Blake has apparently
abandoned Claims Two and Three.

He does not address either claim

in his memorandum and he labels the first and fourth claims as
“Ground One” and “Ground Four,” respectively, suggesting that he
knew that he was omitting Claims Two and Three, and meant to omit
them.

(Dkt. No. 28).

Following suit, the respondent’s opposition

similarly addresses only Claims One and Four and eschews any
treatment of Claims Two and Three.

(Dkt. No. 34).

Consequently,

this court views Claims Two and Three as waived and does not
address them further here.

See Perkins v. Russo, No. 02-10460-

MLW, 2007 WL 2507741, at *3 (D. Mass. August 31, 2007); see also
Smiley v. Maloney, No. 01-11648-GAO, 2003 WL 23327540, at *15 (D.
Mass. October 31, 2003), aff'd, 422 F.3d 17 (1st Cir. 2005)
(finding claim waived where “petitioner has not, in his Memorandum
of Law in support of the petition, advanced any argument, much
less reasoned argument, on this point”).

8

III. DISCUSSION
A. General Standard of Review in Habeas Proceedings
The standard of review to be applied to a habeas corpus
petition is set forth in 28 U.S.C. § 2254(d), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Under this standard, a federal habeas court may not grant a writ
of habeas corpus unless the underlying 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).

As the United States Supreme Court has explained:

A federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a rule
different from the governing law set forth in our
cases, or if it decides a case differently than we
have done on a set of materially indistinguishable
facts .... The court may grant relief under the
“unreasonable application” clause if the state court
correctly identifies the governing legal principle
from our decisions but unreasonably applies it to the
facts of the particular case.
Bell v. Cone, 535 U.S. 685, 694 (2002).
“Clearly established Federal law” refers to the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision on the merits.
Greene v. Fisher, 565 U.S. 34, 39 (2011); Lockyer v. Andrade, 538
U.S. 63, 71–72 (2003).

“[C]learly established law signifies the

holdings, as opposed to the dicta, of [the United States Supreme]

9

Court's decision.”

Howes v. Fields, 565 U.S. 499, 505 (2012)

(quoting Williams v. Taylor, 529 U.S. at 412; internal quotations
omitted).
A state court's decision is “contrary to” clearly established
federal law if: (1) it applies a rule that contradicts governing
Supreme Court law; or (2) it “confronts a set of facts ...
materially indistinguishable” from a decision of the Supreme Court
but reaches a different result.

See Early v. Packer, 537 U.S. at

8 (citation omitted); Williams v. Taylor, 529 U.S. at 405–06.

A

state court's decision “involves an unreasonable application of
[Supreme Court] precedent if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply, or unreasonably refuses to
extend that principle to a new context where it should apply.”
Williams v. Taylor, 529 U.S. at 407 (citation omitted).
A state court’s decision is an unreasonable application of
clearly established federal law if it is objectively unreasonable.
Wiggins v. Smith, 539 U.S. 510, 520-521 (2003).

An “unreasonable

application is different from an incorrect one.”

Id.

reach

the

level

of

“unreasonable,”

“some

In order to

increment

of

incorrectness beyond error is required.”

McCambridge v. Hall, 303

F.3d 24, 36 (1st Cir. 2002) (en banc).

This increment “need not

necessarily be great, but it must be great enough to make the
decision unreasonable in the independent and objective judgment of
10

the federal court.”

Id.

Thus, a habeas petitioner “must do more

than merely identify an incorrect result.”
337 F.3d 74, 81 (1st Cir. 2003).

Jackson v. Coalter,

In short, “a federal habeas court

may not issue the writ simply because that court concludes in its
independent
applied

judgment

clearly

incorrectly.

that

the

established

relevant
federal

state-court
law

decision

erroneously

or

Rather, that application must also be unreasonable.”

Williams v. Taylor, 529 U.S. 362, 411 (2000).
Even

where

the

habeas

court

finds

that

the

state

court

committed an error, habeas relief is only appropriate if the error
had a “substantial and injurious effect or influence in determining
the jury’s verdict.”
(1993).

Brecht v. Abrahamson, 507 U.S. 619, 637-638

In other words, habeas relief cannot be granted for

“harmless” errors, which are defined as those errors that did not
impact the verdict.
Additional information regarding the standard of review is
provided as appropriate in discussing Blake’s particular claims.
B. Claim One: The Showup Identification
Blake claims that his due process rights were violated when
the trial court refused to suppress evidence of his out-of-court
identification based on a single photograph. Blake is not entitled
to habeas relief on this claim because he cannot show that the
Appeals Court’s resolution of this claim was contrary to clearly

11

established federal law, or involved an unreasonable application
thereof.
Standard of Review
The standard of review in claims of this nature is governed
by Simmons v. United States, 390 U.S. 377 (1968).

Under Simmons,

Blake

procedure

must

show:

“(1)

that

the

identification

was

impermissibly suggestive and (2) that in the totality of the
circumstances,
exists.”

a

likelihood

of

irreparable

misidentification

DeLong v. Brady, 723 F. Supp. 2d 376, 394 (D. Mass.

2010); see also Manson v. Brathwaite, 432 U.S. 98 (1977) (noting
that “[j]uries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that has some
questionable feature” and finding that evidence should not be
suppressed where a suggestive identification procedure did not,
under the totality of the circumstances, create a substantial
likelihood of irreparable misidentification).
Analysis
The Appeals Court relied on its own precedent and applied a
standard of review similar to the one established by the Supreme
Court in Simmons.

See Blake, No. 09-P-1501, 2010 WL 5464847, at

*1 n.2 (“We acknowledge that although one-on-one identifications
are generally disfavored, they do not raise due process concerns
unless it is determined that they are ‘unnecessarily suggestive

12

and conducive to irreparable mistaken identification.’”) (quoting
Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006)). 3
As noted, the Appeals Court found that, even assuming Blake
could

satisfy

the

first

prong

of

the

test

and

show

the

identification procedure was unnecessarily suggestive, it did not
raise due process concerns because the officers’ actions were

3

Massachusetts law is in fact more favorable to a defendant than is federal
law: the simple fact that the identification was made pursuant to an
unnecessarily suggestive procedure suffices for suppression of the evidence.
In other words, under Massachusetts law, a defendant must only show the first
of the two Simmons prongs. See Commonwealth v. Walker, 460 Mass. 590, 599 n.13
(2011) (“Where the defendant satisfies this burden, the out-of-court
identification is per se excluded as a violation of the defendant's right to
due process under art. 12 of the Massachusetts Declaration of Rights.”).
“Whether a suggestive identification procedure is “unnecessarily” or
“impermissibly” suggestive, involves inquiry whether good reason exists for the
police to use a one-on-one identification procedure, bearing in mind that [the
SJC] has said that “[e]xigent or special circumstances are not a prerequisite
to such confrontations.”
Commonwealth v. Austin, 421 Mass. 357, 361 (1995)
(internal citations and quotation marks omitted).
“In contrast, under the Fourteenth Amendment to the United States Constitution,
a motion judge must apply a two-step analysis to the question of admissibility.
The judge asks first whether the eyewitness identification was obtained by a
police procedure that was unnecessarily suggestive. If it was, the judge then
asks whether, notwithstanding the unnecessarily suggestive procedure, the
eyewitness identification was reliable under the totality of the circumstances.
Because reliability is the linchpin, the identification, if found reliable, is
admissible even where obtained through an unnecessarily suggestive procedure.
The United States Supreme Court expressly rejected the per se rule of exclusion
as going too far since its application automatically and peremptorily, and
without consideration of alleviating factors, keeps evidence from the jury that
is reliable and relevant.... [T]he standard for the admissibility of an
identification under the Massachusetts Constitution is more favorable to a
defendant than the standard under the United States Constitution ....” Walker,
460 Mass. at 599 n.13 (internal citations and quotation marks omitted).
Because the Massachusetts standard is more protective of defendants than is its
federal counterpart, then a ruling that an identification procedure complied
with the state standard means that the procedure necessarily complied with the
federal constitutional standard as well.
Accordingly, this court may still
look to the Appeals Court's state law analysis as it evaluates the merits of
Blake’s federal constitutional claim in this habeas proceeding. See Cavitt v.
Saba, 57 F. Supp. 3d 81, 92 n.10 (D. Mass. 2014).

13

justified based on exigent circumstances.
at *1 (citing Austin, 421 Mass. at 461).

Blake, 2010 WL 5464847
Notwithstanding Blake’s

protestations to the contrary, there is no basis to question the
state court’s finding.

The police were trying to locate and

apprehend two armed highjackers who had stabbed a kidnapped victim,
ostensibly with the intent to kill him.

Given the clear and

present danger posed by their continued presence in the community,
and the need to focus the search as quickly as possible to locate
and

apprehend

them,

conducting

the

identification

procedure

quickly was necessary under the circumstances to allow the police
to determine whether the petitioner and Gomes were potentially
involved, and if not to continue pursuing other leads to find the
true still-at-large assailants.
To be sure, Blake contends that Kendrick testified at trial
that the identification procedure did not occur until at least a
full day later, calling into question the continued legitimacy of
the trial court’s pre-trial finding that exigent circumstances
existed to justify the procedure.

Even assuming the circumstances

surrounding the identification procedure were not plainly exigent,
that

fact

would

not

standing

alone

categorically

procedure impermissibly suggestive under Art. 12.
361

(holding

“[e]xigent

or

special

render

the

See Austin at

circumstances

are

not

a

prerequisite to such confrontations,” but are instead one factor
among many to determine whether there was good reason for such
14

confrontations).

In any event, Kendrick’s testimony, in context,

hardly provides a basis to revisit the trial court’s findings and
rulings.

For one, the trial court (as well as the jury) might

have fairly reasoned that Kendrick, like any witness, could simply
have been mistaken in his recollection of when the procedure
occurred.

Moreover, Kendrick’s testimony must be balanced and

assessed against the force of countervailing testimony that the
identification procedure occurred just hours after the incident.
Finally, Blake cannot seriously be heard to advance this argument
with

much

force

here

where

his

tack

at

trial

was

to

argue

inappositely that Kendrick had credibility issues and was not to
be believed.
Even assuming, arguendo, that the identification procedure
was

unnecessarily

suggestive

given

the

totality

of

the

circumstances, any error in denying the petitioner’s suppression
motion was harmless. Under the harmless error standard articulated
in Brecht v. Abrahamson, 507 U.S. 619 (1993), habeas relief is
granted only if the error “had a substantial and injurious effect
or

influence

in

determining

Abrahamson, 507 U.S. at 623.
out-of-court

identification,

the

jury’s

verdict.”

Brecht

v.

Even without evidence of Kendrick’s
there

was

ample

other

evidence

adduced at trial to show that Blake and Gomes were the two men who
robbed the victim.

Among other things, the police found the two

defendants at a location at Ruth Street which the cab company said
15

was the victim’s last pickup, a security camera at the Fall River
Pier recorded the arrival of the victim’s cab containing the two
defendants,
defendants

and

the

departing

security
“on

camera

foot

several

also

recorded

minutes

the

after,

two

wearing

clothing similar to the defendants’ at the time of their arrest”
and similar to the “general description Sullivan had been given”
by the victim.

(V.III, Tr. V.4 p. 19-22, 27, 57-58, 79-80, 153-

154, 196-198; Tr. V.5, p.48-49, 53-54, 58-59).

In addition,

Kendrick identified the petitioner in court as the one who attacked
him.

(V. II, Tr. V.II, p.181-82).

Consequently, as there was

ample evidence to show that Blake and Gomes were the two men who
robbed the cab driver, Blake cannot show that admitting the outof-court identification evidence had a “substantial and injurious
effect or influence in determining the jury’s verdict.”

Brecht v.

Abrahamson, 507 U.S. at 623.
Claim Four: Ineffective Assistance of Counsel
The

petitioner

ineffective

argues

assistance

by

that

his

failing

to

trial

counsel

fully

provided

investigate

and

challenge as physically implausible the prosecution’s suggested
timeline of events.
petitioner’s
Massachusetts

In affirming the trial court’s denial of the

motion
Appeals

for

a

Court

new

trial

recounted

follows:

16

on
the

this

ground,

salient

facts

the
as

The defendants argue that trial counsel were
ineffective for failing to offer evidence to contradict
the
Commonwealth’s
timeline
of
the
events.
Specifically,
the
defendants
allege
that,
as
demonstrated by their investigator, it is not possible
to travel the distance involved within the time period
suggested by the Commonwealth.
According to the
defendants, independent evidence which would have cast
doubt on the Commonwealth’s timeline was important
because, among other reasons, such evidence would have
undermined Kendrick’s credibility, and would have
provided additional support for the defense theory that
Kendrick had fabricated the allegations to conceal his
own wrongdoing.
Gomes, 2014 WL 470361, at *2. The Massachusetts Appeals Court
went on to analyze the claim as follows:
Where a motion for a new trial is based on
ineffective assistance of counsel, the defendant bears
the burden of proving entitlement to a new trial by
showing that the behavior of counsel fell below that of
an ordinary, fallible lawyer and that such failing
‘likely
deprived
the
defendant
of
an
otherwise
available, substantial ground of defence. Commonwealth
v. Comita, 441 Mass. 86, 90 (2004) quoting from
Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). .
. .
Trial counsel for both defendants testified at the
postjudgment motion hearing. Based on their testimony,
the judge’s review of the record, and his knowledge of
the trial, he found that the evidence in question would
have provided minimal additional impeachment of Kendrick
and posed the very real risk of giving the Commonwealth
the opportunity to shore up its case on rebuttal. Both
defense attorneys testified that while it was apparent
to
them
that
the
Commonwealth’s
timeline
was
questionable, they chose to attack that evidence through
cross-examination. The judge described their decision
as “prudent” especially in light of the fact that the
Commonwealth could have produced telephone records and
other evidence on rebuttal to support its theory.
Moreover, as the judge also noted, trial counsel had
successfully demonstrated that Kendrick was not credible
on a number of key points. As the judge correctly
observed,
strategic
decisions
will
constitute
17

ineffective
assistance
only
when
“manifestly
unreasonable.” Commonwealth v. Pillai, 445 Mass 175, 186
(2005). The judge’s conclusion that the defendants’
trial attorneys’ decision to forego presenting evidence
demonstrating the implausibility of the Commonwealth’s
timeline was not unreasonable is amply supported by the
record. Thus, there was no abuse of discretion in
concluding that the defendants were not deprived of
effective assistance of counsel on this basis.
Id. at *1-2.
Standard of Review
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court

established

a

two-prong

assistance of counsel.

test

for

showing

ineffective

In order to succeed under Strickland, a

defendant must first demonstrate that counsel's performance was
deficient, requiring a showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed to
the defendant by the Sixth Amendment.
688.

Second,

performance

the

defendant

prejudiced

the

must

defense

Strickland, 466 U.S. at
show

by

that

the

deficient

showing

that

counsel’s

errors were so serious as to deprive defendant of a fair trial, a
trial whose result is reliable.

Id. at 692.

However, “[b]ecause

of the difficulties inherent in making the valuation, a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant

must

overcome

the

presumption

that,

under

the

circumstances, the challenged action ‘might be considered sound

18

trial strategy.’”

Id. at 689 (quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955)).
Massachusetts

reviews

ineffective

assistance

of

counsel

claims pursuant to Commonwealth v. Saferian, 366 Mass. 89 (Mass.
1974).

The Saferian standard asks “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.”
366 Mass. at 96.

Saferian,

Whether counsel should call a particular witness

is a strategic decision and as such will constitute ineffective
assistance

only

if

it

is

“manifestly

unreasonable,”

meaning

lawyers of ordinary training and skill in the criminal law would
not consider the decision competent.

Commonwealth v. Pillai, 445

Mass. 175, 186-187 (Mass. 2005) (quoting Commonwealth v. Levia,
385 Mass. 345, 353 (1982)).
The First Circuit has determined that the Saferian standard
is the “functional equivalent” of the Strickland standard for
ineffective assistance of counsel.

See Lynch v. Ficco, 438 F.3d

35, 48 (1st Cir. 2006); Mello v. DiPaulo, 295 F.3d 137, 144 (1st
Cir. 2002); see also Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994)
(noting “the SJC itself . . . has concluded that if their state’s
test

is

satisfied,

‘the

federal
19

test

is

necessarily

met

as

well.’”).

Therefore, even though the state court addressed the

claim solely under the state law standard, it shall be presumed
the federal law adjudication was subsumed within the state law
adjudication.

See Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007).

The Court’s task under the deferential standard of review set
forth in 28 U.S.C. § 2254(d) is to determine whether the state
court’s application of Strickland, subsumed within the application
of Saferian, was unreasonable.

See 28 U.S.C. § 2254(d)(1); Shuman

v. Spencer, 636 F.3d 24, 31 (1st Cir. 2011) (holding claims of
ineffective assistance of counsel involve mixed questions of law
and fact and are reviewed under the unreasonable application clause
of 28 U.S.C. § 2254(d)(1)).
Analysis
This court discerns no error in the state court’s treatment
of

Blake’s

ineffective

reasonably

found

that

presenting

defense

assistance
defense

witnesses

claim.

counsel’s

to

challenge

The

state

decision
the

to

court
forego

prosecution’s

timeline, and instead to emphasize points counsel had already
secured from the Commonwealth’s witnesses on cross examination,
was

“prudent,”

particularly

where

the

Commonwealth

otherwise

almost surely would have been permitted to put on rebuttal evidence
further

supporting

Kendrick’s

timeline of relevant events.

account

and

the

prosecution’s

The Supreme Court has stated that

“strategic choices made after thorough investigation of law and
20

facts

relevant

unchallengeable.”
has

similarly

particular

to

plausible

options

are

Strickland, 466 U.S. at 690.

noted

witness

that
is

“[t]he

almost

decision

virtually

The First Circuit

whether

always strategic,

to

call

a

requiring

a

balancing of the benefits and risks of anticipated testimony.”
United States v. Lema, 987 F.2d 48, 54 (1st. Cir. 1993).

Here, as

the Appeals Court noted, trial counsel made a strategic decision
to

challenge

the

timeline

evidence

through

rather than by calling his own witness.

cross-examination

This was a strategic

decision that cannot be said to be unreasonable.

Phoenix v.

Matesanz, 233 F.3d 77, 84 (1st Cir. 2000) (upholding denial of
habeas relief where trial counsel made progress in discrediting
prosecution expert through cross-examination and decided not to
call his own expert even where doing so “would probably have been
helpful at trial”).

As Blake advances no serious reason to call

the state court’s reasoning into question, he cannot show that his
counsel’s performance was deficient or deprived him of his right
to a fair trial.
IV.

In short, the claim fails.

CONCLUSION

For the foregoing reasons, it is respectfully recommended
that the petitioner’s habeas petition be DENIED. The parties are
hereby advised that under the provisions of Federal Rule of Civil
Procedure 72(b), any party who objects to this recommendation must
file specific written objections thereto with the Clerk of this
21

Court within 14 days of the party's receipt of this Report and
Recommendation. The written objections must specifically identify
the portion of the proposed findings, recommendations, or report
to which objection is made and the basis for such objections. The
parties are further advised that the United States Court of Appeals
for this Circuit has repeatedly indicated that failure to comply
with Rule 72(b) will preclude further appellate review of the
District Court's order based on this Report and Recommendation.
See Keating v. Secretary of Health and Human Servs., 848 F.2d 271
(1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792
F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co.,
616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376,
378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st
Cir. 1983); see also Thomas v. Arn, 474 U.S. 140 (1985).

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

August 28, 2017

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