Torres v. O'BRIEN et al

Filing 50

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Petitioner's Motion for Permission to File Transcript of Jury Instructions in Commonwealth v. Tassinari (Docket Entry # 48 ). The motion for permission to file the transcript of the instructions (Docket Entry # 48 ) is DENIED. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE A. TORRES,
Petitioner,
v.

CIVIL ACTION NO.
15-11901-IT

CAROL HIGGINS O’BRIEN,
Commissioner;1 LISA MITCHELL,
Superintendent of Old
Colony Correction Center; and
MAURA HEALY, Attorney General
of the State of Massachusetts,
Respondents.
MEMORANDUM AND ORDER RE:
PETITIONER’S MOTION FOR PERMISSION TO FILE
TRANSCRIPT OF JURY INSTRUCTIONS
IN COMMONWEALTH V. TASSINARI
(DOCKET ENTRY # 48)
September 14, 2018

BOWLER, U.S.M.J.
In this habeas petition filed under 28 U.S.C. § 2254,
petitioner Jose A. Torres (“petitioner”), an inmate at Old Colony
Correctional Center (“OCCC”) in Bridgewater, Massachusetts,
seeks to expand the record to include a transcript of jury
instructions used in Commonwealth v. Tassinari, 995 N.E.2d 42
(Mass. 2013).

(Docket Entry # 48).

During oral argument,

respondents Lisa Mitchell, Superintendent of OCCC, and Maura
Healy, Attorney General of the State of Massachusetts,

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As previously explained, Carol Higgins O’Brien is not a
proper respondent. (Docket Entry # 44).

(“respondents”) objected to the expansion of the record to
include the transcript.

(Docket Entry # 49).
DISCUSSION

The Supreme Court’s decision in Cullen v. Pinholster, 131
S.Ct. 1388, 1398 (2011), “makes clear that ‘review under §
2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.’”
Roden, 733 F.3d 18, 22 (1st Cir. 2013).
applies to review under § 2254(d)(2).”

Garuti v.

“The same limitation
Stote v. Roden, Civil

Action No. 01-CV-12139-IT, 2017 WL 6559759, at *1 (D. Mass. Dec.
22, 2017) (citing Garuti, 733 F.3d at 23).

Recognizing this

limitation, petitioner states that he is not submitting the
transcript of the jury instructions in Tassarini “as new
evidence” and it “is not a document concerning the facts of the
Torres case.”

(Docket Entry # 48) (emphasis added).

Rather, he

wishes to use the transcript to compare the instructions in
Tassarini to the instructions in the case at bar in order to
argue the distinctions to support an ineffective of counsel claim
in ground four regarding counsel’s failure to object to the
manslaughter instructions.

(Docket Entry # 48).

First, a comparison between the instructions in Tassarini
and the instructions in the case at bar is not necessary to fully
evaluate the ineffective assistance of counsel claim in ground
four.

Second, the focus of federal habeas review is the result
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rather than the explanation or rationale used by the
Massachusetts Supreme Judicial Court (“SJC”) to reject the
ineffective assistance of counsel claim.

See DiBenedetto v.

Hall, 272 F.3d 1, 6 (1st Cir. 2001) (when “state court has
addressed the federal constitutional issue, it is its ultimate
outcome, and not its rationalization, which is the focus”);
Buckman v. Roden, Civil Action No. 13-CV-11413-IT, 2015 WL
1206348, at *3 (D. Mass. Mar. 17, 2015).
Here, the SJC in Torres cited the Tassarini decision for the
principle that an attorney’s failure to object to a manslaughter
instruction that was nearly verbatim to the Massachusetts model
instruction was not ineffective performance.
Torres, 14 N.E.3d 253, 263–64 (Mass. 2014).

Commonwealth v.
The relevant portion

of the opinion, which depicts the reasoning and the rejection of
the claim, reads as follows:
the judge’s instruction on manslaughter was the model
instruction. Counsel’s failure to object to the instruction
was not ineffective assistance of counsel. See Commonwealth
v. Tassinari, 466 Mass. 340, 356–357, 995 N.E.2d 42 (2013)
(manslaughter charge nearly verbatim to model instruction—no
error). Taken as a whole, we think the jury understood that
a verdict of guilty of murder in the first degree required
proof beyond a reasonable doubt of the absence of reasonable
provocation and the heat of passion, and that there was no
error as in Commonwealth v. Acevedo, 427 Mass. 714, 717, 695
N.E.2d 1065 (1998).
Commonwealth v. Torres, 14 N.E.3d at 263–64.

Overall, the

inclusion of the transcript in the record would not materially
advance petitioner’s ineffective assistance of counsel argument.
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Moreover, because the focus is on the result, namely, the
rejection of the ineffective assistance of counsel claim,
consideration of the Tassarini instructions is neither necessary
nor warranted.

For these reasons and those set out by

respondents during oral argument, the motion lacks merit.
CONCLUSION
In accordance with the foregoing discussion, the motion for
permission to file the transcript of the instructions (Docket
Entry # 48) is DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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