Roby v. Commonwealth of Massachusetts

Filing 91

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING 88 Petitioner's MOTION for Leave to Amend Caption of Petition; DENYING 1 PETITION for Writ of Habeas Corpus pursuant to 28:2254.(DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RANDY ROBY,
Petitioner,
v.
DOUGLAS DEMOURA,1
Respondent.

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Civil Action No. 14-12832-IT

MEMORANDUM & ORDER
August 4, 2017
TALWANI, D.J.
Before the court is Petitioner Randy Roby’s Petition for a Writ of Habeas Corpus [#1], as
amended.
I.

Procedural and Factual Background
In December 2008, Petitioner was tried in Massachusetts Superior Court for Essex

County on five indictments under Mass. Gen. Laws ch. 265, § 22A, i.e. Rape of a Child.2
Commonwealth v. Roby, 969 N.E.2d 142, 146 (2012) (“Roby I”)3; (S.A. 1-19). Three of the

1

Petitioner moves to substitute Douglas DeMoura for the Commonwealth of Massachusetts as
Respondent in this action. Pet’r.’s Mot. for Leave to Amend Caption [#88]. There has been no
opposition. The motion is ALLOWED, and the caption now reflects this substitution.
This was Petitioner’s second trial on these charges. Supplemental Answer (“S.A.”) 9. Petitioner
states no objection to the process by which he was tried a second time: the habeas proceedings
before this court consist entirely of attacks on the convictions stemming from the second trial,
based on alleged errors in that second trial.
2

Petitioner has not contested the Supreme Judicial Court’s recitation of the posture of this case;
this court refers to that decision where helpful to supplement citations to the Supplemental
Answer.
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indictments charged the offense in connection with a child victim pseudonymously named
Nancy, and the other two involved Nancy’s half-sister Toria (also pseudonymous). Roby I, at
146. At the close of the Commonwealth’s case-in-chief, Petitioner moved for a required finding
of not guilty pursuant to Mass. R. Crim. P. 25(a), which permits trial judges to enter findings of
not guilty of offenses charged in an indictment “or any part thereof . . . if the evidence is
insufficient as a matter of law to sustain a conviction . . . .” Id.
The trial judge allowed the Rule 25 motion in part. As to Nancy, he determined the
Commonwealth proffered insufficient evidence on the element of penetration, and thus reduced
those charges to indecent assault and battery on a person under the age of 14, Mass. Gen. Laws
ch. 265, § 13B. (S.A. 463-477) (transcript of hearing on Rule 25 motion). As to Toria, he
determined the Commonwealth failed on the element of force, and thus reduced those charges to
statutory rape, Mass. Gen. Laws. ch. 265, § 23. Id.
Before submitting the charges to the jury, the trial judge amended the indictments as to
Toria—which previously listed “Peabody” as the location of the offenses—by adding the
specific locations reflected in Toria’s testimony, namely the victim’s “living room” and her
grandmother’s “bedroom” (both of which locations are in Peabody). Roby I, at 147-48. Petitioner
renewed his Rule 25 motion after the jury was charged with the amended indictments, arguing
that the grand jury did not indict him for an offense in the grandmother’s bedroom. Id. The court
denied the motion, and the jury returned guilty verdicts on each reduced count, including the
amended indictments as to Toria. Id.
The Supreme Judicial Court reviewed Petitioner’s appeal directly. As relevant here,
Petitioner argued to the Supreme Judicial Court that (i) “he was convicted of crimes for which he
was not indicted” in connection with the trial judge’s amendments to the indictments; and (as

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explained in further detail infra) that the trial judge committed reversible error in connection
with evidentiary rulings and a refusal to grant a new trial involving (ii) Toria’s cross-examination
and (iii) the admission of prejudicial bad act evidence. (S.A. 24-81). On June 4, 2012, the
Supreme Judicial Court affirmed the convictions in full. Roby I, at 155.
On April 8, 2013, Petitioner collaterally attacked his conviction pursuant to Mass. R.
Crim. P. 30(a), advancing what in substance amounts to a single argument distinct from those on
direct appeal: that the trial judge offended double jeopardy by submitting reduced charges to the
jury. (S.A. 337-366). Petitioner also posited that he was afforded constitutionally ineffective
counsel at both the trial and appellate level by way of both counsels’ refusal to assert this
argument. (S.A. 367-369).4 That same day, the Superior Court denied the motion. (S.A. 18).
Petitioner appealed that denial to the Massachusetts Appellate Court. (S.A. 18).
On June 30, 2014, while that appeal was pending in the state court, Petitioner filed the
instant petition, asserting the same three grounds for relief advanced on direct appeal.5 Pet. For a
Writ of Habeas Corpus [#1]. On March 26, 2015, Petitioner filed a motion for this court’s review
of the 30(a) motion pending before the Massachusetts Appellate Court. Mot. for Review [#30].
This court construed the motion as seeking to amend the habeas petition with the double
jeopardy and ineffective assistance claims raised in the 30(a) motion, Order [#37], and
subsequently stayed proceedings until exhaustion of the 30(a) claims before the Massachusetts
courts. Electronic Order [#44].

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In his reply brief in connection with his 30(a) motion, Petitioner substantially continues to
argue in support of his double jeopardy claim and the contingent ineffective assistance claims.
(S.A. 489-514).
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The petition was timely by operation of the 30(a) motion and 28 U.S.C. § 2244(d)(2), which
tolls time while a proper state court application for collateral relief is pending.
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The denial of the 30(a) motion was affirmed by the Massachusetts Appellate Court on
July 14, 2015, and denied further appellate review by the Supreme Judicial Court on December
22, 2015. (S.A. 568; 569); Commonwealth v. Roby, 2015 WL 4249188, *1 (Mass. App. Ct. July
14, 2015) (“Roby II”).
Over the Commonwealth’s objection, this court ultimately allowed Roby to amend his
petition to include the 30(a) claims, and directed Petitioner to file a memorandum in support of
the amended petition. Order [#72]. Petitioner did so, but briefed only his double jeopardy and
ineffective assistance claims, i.e. the 30(a) claims later added to the petition, and not the claims
raised on direct appeal and in the initial petition (the amendment to indictments as to location,
and the evidentiary/new trial rulings). Pet’r.’s Mem. of Law [#77].
II.

Standard of Review
The court’s review of the habeas petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, if a state court has adjudicated a claim
on the merits, the federal habeas court must defer to that adjudication unless it (1) “resulted in a
decision 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 federal court must review de novo any federal
claim not reviewed by the state court on the merits. See Clements v. Clarke, 592 F.3d 45, 52 (1st
Cir. 2010).
A state court decision is “contrary to” clearly established Federal law if the court applies
“a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case
differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.”

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Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406
(2000)); Sleeper v. Spencer, 510 F.3d 32, 37-38 (1st Cir. 2007). A state court decision involves
an “unreasonable application” of clearly established Federal law “when the state court correctly
identifies the correct legal principle, ‘but (i) applies those principles to the facts of the case in an
objectively unreasonable manner; (ii) unreasonably extends clearly established legal principles to
a new context where they should not apply; or (iii) unreasonably refuses to extend clearly
established legal principles to a new context where they should apply.’” Malone v. Clarke, 536
F.3d 54, 63 (1st Cir. 2008) (quoting Sleeper, 510 F.3d at 38). “[E]valuating whether a rule
application was unreasonable requires considering the rule’s specificity. The more general the
rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Under both the “contrary to” and “unreasonable application” prongs, “clearly
established Federal law” refers only to “the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state court decision.” Carey v. Musladin, 549
U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). If Supreme Court cases “give no clear
answer to the question presented,” a state court’s resolution of a constitutional question may not
serve as a basis for habeas relief. Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam);
see also Carey, 549 U.S. at 77 (a lack of holdings from the Supreme Court regarding a topic bars
a finding that a state court “unreasonably appli[ed] clearly established Federal Law.”).
If a state court applied a standard that was contrary to, or an unreasonable application of,
clearly established federal law, the federal court must conduct a de novo review of the claim. See
Aspen v. Bissonnette, 480 F.3d 571, 576 (1st Cir. 2007). Under that review, the petitioner must
demonstrate that he “is in custody in violation of the Constitution or laws or treaties of the

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United States.” Id. at 576 (quoting 28 U.S.C. § 2254). In other words, “a petitioner must show
that his underlying detention is unlawful and not just that the state court employed faulty
reasoning in his case.” Id. (citing Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir. 2005)).
III.

Discussion
a. Double Jeopardy
Petitioner asserts that it was constitutional error to submit reduced charges to the jury. He

argues that the trial judge’s partial allowance of his motion for a required finding of not guilty
amounted to an acquittal and thus immediately afforded Petitioner rights to liberty and double
jeopardy protections. But this argument elides a crucial distinction between being entirely
acquitted of a charge and having a charge merely reduced to a lesser included component. Here,
the trial judge found the evidence insufficient to support the charged offenses—rape of a child
under the age of sixteen by force, see Mass. Gen. Laws ch. 265, § 22A—but still sufficient to
support indecent assault and battery on a person under the age of 14 (Mass. Gen. Laws ch. 265,
§ 13B) as to Nancy (for whom § 22A’s “penetration” element was not met), and statutory rape
(Mass. Gen. Laws ch. 265, § 23) as to Toria (for whom § 22A’s “force” element was not met).
(S.A. 463-477). Each of these latter offenses is included within Mass. Gen. Laws ch. 265,
§ 22A,6 and there is no authority or reasoned basis for the proposition that federal law forbids—
as it must, if habeas relief is to attach—convictions for offenses necessarily included in the

Mass. Gen. Laws ch. 265, § 22A forbids “sexual intercourse or unnatural sexual intercourse
with a child under 16,” accomplished by means of overcoming the child’s will by force or threat
of bodily injury. As the Supreme Judicial Court noted, one cannot violate this statute in
connection with children of Toria’s and Nancy’s age without also violating Mass. Gen. Laws ch.
265, § 13B (indecent assault and battery on child under the age of 14) and Mass. Gen. Laws ch.
265, § 23 (unlawful sexual intercourse with child under the age of 16). See Roby I, at 399-400
(noting § 13B and § 23 are included within § 22A).
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offenses charged. See United States v. Nur, 799 F.3d 155, 158-159 (1st Cir. 2015) (explaining
history and propriety of lesser-included-offense doctrine and Fed. R. Crim. P. 31(c)).7
Petitioner’s sole authority, Smith v. Massachusetts, 543 U.S. 462, 466-68 (2005), is not
inconsistent with this conclusion. There, the Supreme Court held in the double jeopardy context
that a required finding of not guilty on a particular count is tantamount to an acquittal on that
count, thus forbidding later prosecution (even within the same trial) on that count. Id. Had the
trial judge in Petitioner’s case reinstated Mass. Gen. Laws ch. 265, § 22A in full after having
granted the Rule 25(a) motion, Smith would have barred the later prosecution. 543 U.S. at 46668. But the trial judge here did not reinstate dismissed charges as in Smith; he instead allowed (to
Petitioner’s benefit) only those portions of the charges sustainable by admissible evidence. 543
U.S. at 466-68; (S.A. 463-477). Petitioner was therefore not convicted of acquitted charges, and
the Massachusetts Appellate Court did not contravene clearly established federal law in rejecting
Petitioner’s challenge. Roby II, at *1.
b. Ineffective Assistance of Counsel
Petitioner’s claims of ineffective assistance of trial and appellate counsel stem solely
from those counsels’ refusals to assert Petitioner’s double jeopardy claim. Pet’r.’s Mem. of Law
[#77] 11-15; see (S.A. 367-369) (Petitioner’s state court brief in support of 30(a) motion). As
explained supra, Petitioner has no non-frivolous double jeopardy claim; as such, neither counsel
was ineffective for refusing to raise one. Lattimore v. Dubois, 311 F.3d 46, 57-58 (1st Cir. 2002)

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Petitioner asserts it is error to rely on caselaw interpreting Fed. R. Crim. P. 31(c), the federal
rule governing lesser-included offenses, because that rule does not and did not operate in state
proceedings. Pet’r.’s Resp. to Resp’t.’s Opp’n to Pet’r.’s Pet. For a Writ of Habeas Corpus [#89].
But on habeas review this court is concerned with decisions contrary to federal law; in
determining whether it was federal error to charge Petitioner’s jury with lesser-included offenses,
it is probative that the Federal Rules of Criminal Procedure explicitly allow this exact process.
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(Strickland v. Washington, 466 U.S. 668 (2002), does not require appellate presentation of every
non-frivolous claim—let alone frivolous claims); Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999)
(“Obviously, [trial] counsel’s performance was not deficient if he declined to pursue a futile
tactic.”). These claims therefore fail.
c. Amendments to the Indictments
The Essex County indictments that charged Petitioner described offenses taking place in
“Peabody, but otherwise did not specify where in Peabody.” Roby I, at 147. The trial judge
modified the indictments as to Toria and “instructed the jury that a guilty verdict on each
indictment required they unanimously find at least one occasion of the offense . . . in the dining
room and one occasion in [the grandmother’s] bedroom.” Id. Petitioner argued to the Supreme
Judicial Court that these amendments violated the grand jury rights found in both Article 12 of
the Massachusetts Constitution and the Fifth Amendment the United State Constitution. Id. at
147-49; (S.A. 26-36). The petition before this court appears to again assert this argument by
largely mirroring the state court brief’s language and claiming “the defendant was convicted of
crimes for which he was not indicted in violation of the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution.” Pet. For a Writ of Habeas Corpus [#1] 5.
Petitioner has failed to brief this argument to this court beyond its mere identification in
the petition, constituting waiver. Powell v. Tompkins, 783 F.3d 332, 349 (1st Cir. 2015) (failure
to cite to any applicable Supreme Court authority or “grapple with the SJC’s analysis at all” fatal
in § 2254 context). Regardless, the claim fails. First, as noted by the Supreme Judicial Court, the
Fifth Amendment’s grand jury right is not incorporated against the states, Roby I, at 147 n.6,
which both negates the presence of a Fifth Amendment grand jury error capable of habeas
review and illuminates that the Supreme Judicial Court’s decision (which explicitly assessed the

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amendments’ propriety under Massachusetts law) operates as a habeas-proof “independent and
adequate state law ground.” See Lee v. Corsini, 777 F.3d 46, 54 (1st Cir. 2015).
Second, even were this court to construe the petition as asserting additional attacks on the
amendments under the Sixth and Fourteenth Amendments, the result remains unchanged.
Petitioner is guaranteed only that he be given “adequate notice of the charges against him.” See
Lopez v. Smith, 135 S.Ct. 1, 4 (2014). Here, not only did the allegedly-infirm amendments
merely charge where, within the location already provided in the original indictments, the
offenses took place, but Petitioner in fact had the benefit of an entire first trial in which the
Commonwealth presented its evidence against him, thus providing not just adequate but ample
notice of what allegations he faced in the operative trial. Roby I, at 148. This claim accordingly
fails.
d. Toria’s Testimony and Other Evidentiary Rulings
The context for Petitioner’s argument regarding Toria’s testimony is set forth by the
Supreme Judicial Court as follows:
In December, 2007 [after Petitioner’s first trial], Toria was charged in Middlesex
County with murder. Before the opening statements at the defendant's second trial in
December, 2008, the Commonwealth moved to preclude the defendant from
impeaching Toria with the murder indictment. Defense counsel argued, however,
that Toria might be biased in testifying at the second trial because, on information
and belief, her defense to the murder indictment was based on posttraumatic stress
disorder resulting from having been sexually assaulted by the defendant. The judge
stated that, in accordance with Commonwealth v. Haywood, 377 Mass. 755, 762–
763, 388 N.E.2d 648 (1979), he would not allow the impeachment absent a material
change in Toria's forthcoming trial testimony.
Surprising both the prosecutor and the defendant at the second trial, Toria testified
that in the backyard shed the defendant had sucked on her nipples and had painted a
yellow flower onto one of her nipples. On cross-examination, defense counsel tried
to impeach her, questioning why she was revealing this incident for the first time on
the stand. Toria, however, claimed that “years ago” she had told a victim witness
advocate about it.

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Before the testimony of the next witness, defense counsel moved to recall Toria so
that he could impeach her with the murder indictment, arguing that Toria's testimony
concerning the painting of her nipple was a material deviation from her previous
testimony. The prosecutor objected, asserting that the testimony did not pertain to a
charged offense and noted that Toria never wavered from her assertions of digital
penetration. The prosecutor stated that she had no knowledge of this allegation and
would not refer to it during her closing argument. The judge acknowledged that the
new testimony, if believed, might add credence to Toria's other claims due to what
the jurors may perceive as a kind of “kinkiness,” but expressed his view that any
potential impact was limited by the collateral nature of the testimony and the
prosecutor's representation that she would not reference this evidence during her
closing argument. The judge concluded that the probative value of the evidence was
minimal and that the prejudicial impact of the murder charge would be “very
substantial,” and excluded the evidence over the objection of defense counsel.
The next day before any testimony was taken, defense counsel moved for a mistrial,
arguing that Toria's testimony concerning the painting of her nipple amounted to a
prior bad act of the defendant of which he was not given notice. He suggested that
the evidence was very damaging, likely having a “cumulative effect down the line,”
and expressed doubts that any curative instruction could mitigate the prejudice. The
judge determined that granting a mistrial would be harsh and instead struck the
testimony, [and provided cautionary instructions to the jury].
[…]
The defendant argues that the judge abused his discretion by failing to allow defense
counsel to impeach Toria with the murder indictment and by failing to declare a
mistrial.”
Roby I, at 152-154. The Supreme Judicial Court rejected these contentions, concluding that the
trial judge did not abuse his discretion under Massachusetts caselaw in restricting Toria’s
impeachment and refusing to grant a mistrial.
The context for Petitioner’s final argument is as follows:
The defendant argues that the judge abused his discretion in admitting “numerous
incidences of non-charged criminal behavior and prior bad act[ ]” evidence
amounting to prejudicial propensity evidence that created a substantial risk of a
miscarriage of justice. He points to the evidence of images of naked or semi-naked
women on his computer, an issue we have already addressed and determined to be
properly admitted to show context of the first complaint testimony. He also points to
the incident in which Toria testified that the defendant painted a flower on one of her
nipples, which we have also addressed. Concerning the defendant's remaining
claims, including the admission of evidence regarding the number of times the
defendant sexually touched each of the girls, such evidence was admissible to show
“common scheme, pattern of operation, [and] absence of accident,” here,
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undermining the defendant's explanation for the presence of Toria on his lap without
a shirt on when Linda walked into the basement. See Commonwealth v. Dwyer, 448
Mass. 122, 128, 859 N.E.2d 400 (2006), quoting Commonwealth v. Marshall, 434
Mass. 358, 366, 749 N.E.2d 147 (2001). The evidence was properly admitted.
Roby I, at 152-154
Petitioner has incorporated these arguments in his petition without further argument
or briefing. Pet. for a Writ of Habeas Corpus [#1]. Again, this alone constitutes waiver, see
Powell, 783 F.3d at 349, as does the fact that Petitioner’s brief to the Supreme Judicial
Court does not flesh out an argument based in a federal constitutional right. (S.A. 66-81);
Coningford v. Rhode Island, 640 F.3d 478, 483 (1st Cir. 2011) (proper to dismiss as
unexhausted federal claim not presented “to the state court face-up and squarely.”)
(internal citation omitted). But again, regardless, the claims have no merit in this habeas
proceeding.
As to the evidentiary rulings—the exclusion of Toria’s murder indictment and the
inclusion of Petitioner’s prior “bad acts”—Petitioner has failed to show, as he must, that
the trial judge or Supreme Judicial Court decisions were “so arbitrary or capricious as to
work a denial of the petitioner’s constitutionally secured fair-trial right.” Coningford, 640
F.3d at 485 (elucidating standard for habeas review of state evidentiary rulings).
Alternatively, to the extent Petitioner is asserting a violation of his Sixth Amendment
confrontation right based on limitations placed on Toria’s cross-examination, he has not
demonstrated how the trial judge abused his “wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness' safety, or interrogation that is repetitive or only marginally relevant.” See
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see Soto v. Ryan, 2014 WL 1056957,
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*12-14 (D. Mass. March 14, 2014) (applying Van Arsdall to limitations placed on scope of
cross examination and surveying relevant caselaw).8 In the final analysis, Petitioner needs
to demonstrate that the limitation of Toria’s cross-examination was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” He has not done so.
IV.

Conclusion
In accordance with the foregoing, the Petition [#1] is DENIED.
IT IS SO ORDERED.
August 4, 2017

/s/ Indira Talwani
United States District Judge

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It bears noting that the exclusion of extrinsic evidence in cross-examination—like a murder
indictment—is of a lesser potential threat to constitutional rights than restrictions of crossexamination itself. See United States v. Catalan-Roman, 585 F.3d 453, 464 (1st Cir. 2009).
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