Gorham v. Vidal

Filing 34

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 31 Motion to Amend and granting 23 Motion for Judgment on the Pleadings, as amended; given the judgment on the pleadings the court finds moot 25 the petitioner's Motion to Appoint Counsel and 32 the petitioner's Motion for Hearing. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

KYRON GORHAM,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
OSVALDO VIDAL,
Respondent.

CIVIL ACTION
NO. 16-cv-10822-DPW

MEMORANDUM AND ORDER
December 21, 2017
Petitioner Kyron Gorham, after being convicted of first
degree murder, unsuccessfully pursued post-conviction relief in
Massachusetts state courts.

He then filed this petition for a

federal writ of habeas corpus under 28 U.S.C. § 2254.

His

custodian, Respondent Osvaldo Vidal, has moved for judgment on
the pleadings.

For the reasons set forth below, I will grant

Respondent’s motion and dismiss the petition.
I. BACKGROUND
On habeas review, a federal court presumes state court
findings of fact are correct absent clear and convincing
evidence to the contrary.

28 U.S.C. § 2254(e)(1); Rashad v.

Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (explaining that
deference is accorded to findings of both state trial and state
appellate courts).

Notwithstanding some conclusory rhetorical

flourishes to the contrary in his motion to amend his petition,

Petitioner does not in substance challenge the state courts’
adjudication on that basis.

The brief account that follows is

drawn from the Supreme Judicial Court’s summary of the facts.
See generally Commonwealth v. Gorham, 32 N.E.3d 1267, 1268–69
(Mass. 2015).
A.

Facts
Petitioner was one of approximately a dozen guests at a

party hosted by Kayla Aguiar at her home in Fall River,
Massachusetts.

Those at the party were drinking alcohol; it is

unclear whether there was also drug use.

The evidence presented

at trial did not show that Petitioner was intoxicated.

After

Petitioner temporarily left the party to buy more alcohol for
the event, two young women began arguing and eventually engaged
in a fight regarding a man named Shakeem Davis, who was not
present.

The fight was eventually broken up, and one of the

women, Kayla Joseph, called Davis for a ride to leave the party.
Davis met Joseph at the party and drove with her to an apartment
on Amity Street.
Petitioner returned to the party and was disappointed to
find that the dispute had spoiled the mood.
another argument ensued.

He called Davis and

Upset and offended after his

conversation with Davis, Petitioner drove to a friend’s
apartment to pick up a rifle and continued to the Amity Street
apartment.

He arrived at the apartment with a friend, and the
2

argument with Davis continued briefly in person.

He then

pointed his rifle at Davis, who was seated on a couch, and fired
six shots.

Davis died as a result of multiple gunshot wounds.

Petitioner fled, hiding the weapon in bushes nearby the
apartment.
Petitioner was arrested approximately one month after the
shooting in Syracuse, New York, at which time he gave a videorecorded statement to the police that was shown to the jury.

He

admitted to shooting Davis, although he claimed he went to the
apartment intending only to scare the victim.

Petitioner

explained that when he pointed the gun at Davis, Davis grabbed
the barrel and initiated a struggle that led to the accidental
firing of the weapon.
B.

Procedural History
Petitioner was charged with first degree murder.

The

primary defense asserted was that the killing was not
premeditated because the gun fired accidentally while Petitioner
and Davis fought for control of the weapon.

At the charge

conference, Petitioner requested an instruction regarding
voluntary intoxication, which the court denied.

The court also

denied Petitioner’s requests for instructions of self-defense,
voluntary manslaughter, and involuntary manslaughter.
Petitioner was found guilty of first degree murder by the jury
and sentenced to life without the possibility of parole.
3

With the assistance of new counsel, Petitioner filed a
notice of appeal from the conviction, a motion for a new trial
and a motion for funds to hire a new investigator.
N.E.3d at 1268.

Gorham, 32

The grounds offered for a new trial were newly

discovered evidence and ineffective assistance of counsel.
at 1269.

Id.

The new evidence was in the form of an affidavit by a

partygoer, who stated that Petitioner was severely intoxicated
on the night of the shooting.

Petitioner argued that trial

counsel’s failure to locate this witness constituted ineffective
assistance.

Petitioner also submitted an affidavit from trial

counsel, who stated that he did not believe the investigator he
hired had spoken to this partygoer before trial, although he had
directed the original investigator “to look into” possible
evidence of Petitioner’s intoxication.

Id.

The trial court

denied the motions.
Petitioner then moved for reconsideration of the denial of
his motions for a new trial and for funds, offering several more
affidavits in support.

Id. at 1271.

Of note here, a private

investigator retained by Petitioner’s new counsel stated that he
had located two other witnesses who had attended the party but
had not been interviewed by trial counsel or an investigator
before trial.

The court denied reconsideration, and

Petitioner’s appeal was consolidated with the direct appeal of
his murder conviction in the Supreme Judicial Court.
4

The Supreme Judicial Court affirmed Petitioner’s conviction
and the denial of his post-conviction motions.

The court held

that Petitioner had not met his burden on the newly discovered
evidence claim since he could not show that the information was
in fact newly discovered because he did not provide a full
description of the original investigator’s efforts.
1273.

Id. at

For similar reasons, the court held that the trial judge

“acted well within his discretion” in denying the claim of
ineffective assistance of counsel.

Id.

The Supreme Judicial

Court found on the record that trial counsel conducted a
pertinent investigation, and, faced with a less than full
account of the investigator’s work, concluded it could not find
that trial counsel’s performance was deficient.

This petition

for a writ of habeas corpus followed, as in turn did a motion to
amend the petition presenting additional grounds for relief.
The Respondent filed no opposition to the motion to amend.1
II. ANALYSIS
A.

Legal Standards
Petitioner bases his present request for relief on a theory

of ineffective assistance of counsel.

1

Strickland v. Washington

I will allow the motion to amend, finding as a procedural
matter that the issues have been exhausted in the state courts.
Moreover, because the issues were fully briefed in the state
courts, I rely as a substantive matter, on the state court
record in resolving the issues asserted in the unopposed motion
to amend.
5

supplies the relevant legal standard:
First,
the
defendant
must
show
that
counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
466 U.S. 668, 687 (1984).

To establish deficiency, Petitioner

“must show that counsel’s representation fell below an objective
standard of reasonableness.”

Id. at 688.

For prejudice, he

must show a “reasonable probability” that the outcome would have
been different absent counsel’s deficient performance.

Id. at

694.
In the habeas context, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) significantly limits the power
of federal courts to grant habeas corpus relief from state
convictions.

Under AEDPA, relief may not be granted unless the

state court adjudication either “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 “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence.”

28 U.S.C. § 2254(d).

Since Petitioner in substance

does not challenge state court factual determinations, only the
former provision is applicable here.
6

The question before me is thus whether the Supreme Judicial
Court’s denial, as the last reasoned state court determination
of Petitioner’s ineffective assistance of counsel claim, was
based on an unreasonable application of clearly established
federal law and would thus support habeas relief under AEDPA.
B.

Ineffective Assistance of Counsel - Deficiencies
Petitioner’s claim of ineffective assistance of counsel

initially centered on an alleged “broken promise” made by
defense counsel.2
Cir. 2002).

Cf. Ouber v. Guarino, 293 F.3d 19, 27 (1st

His motion to amend the petition elaborates on this

claim3 and presents two additional grounds for relief.

In this

motion, Petitioner adds the claim that trial counsel’s
investigation was itself so inadequate as to deprive him of the
effective assistance of counsel.

Second, he argues that the

state court erred in rejecting this claim on the basis that
Petitioner failed to present a full description of the
investigator’s efforts.

2

Petitioner’s motion to amend repeats this claim in substance as
“Ground B.” The following analysis applies to the claim as
presented in both the original petition and the motion to amend.
3 As noted above, “Ground B” in the motion to amend essentially
duplicates the argument in the original petition. It is labeled
“Unreasonable Application of Ouber and Butler Regarding the
Petitioner’s Intoxication.” Ouber v. Garcia, 293 F.3d 19, 27
(1st Cir. 2002) and Anderson v. Butler, 858 F.2d 16 (1st Cir.
1988) are both “broken promise” cases from the First Circuit.
7

1.

Trial Counsel’s Opening Statement

In his opening statement, defense counsel twice mentioned
that Petitioner was “intoxicated” at the time of the killing.
No evidence was presented at trial to establish Petitioner’s
level of intoxication.

Later, counsel requested a jury

instruction on voluntary intoxication as it related to
Petitioner’s capacity to form an intent to kill.

The judge

declined to give the instruction on the ground that there was a
lack of evidence.

Petitioner contends that counsel’s failure to

present evidence of intoxication while simultaneously admitting
Petitioner’s responsibility for the shooting amounted to
“verify[ing] that Petitioner was guilty without mitigating a
reason for the guilt.”
This argument was considered and rejected by the Supreme
Judicial Court.

While the SJC’s opinion focused primarily on

Petitioner’s claim of ineffective assistance as a result of
insufficient investigation, the court discussed the opening
statement theory in a footnote:
To the extent that the defendant's direct appeal
suggests that trial counsel was ineffective for
suggesting in his opening statement that voluntary
intoxication would be a defense without having the
evidence to support such a theory, that argument fails
as well. The trial record is silent as to what evidence
of intoxication trial counsel had or did not have. In
any event, trial counsel may well have thought that even
if the evidence did not require any instruction on
voluntary intoxication, the trial judge was not
precluded from giving such an instruction.
Such a
8

strategy, particularly where the case against the
defendant was strong, would not have been “manifestly
unreasonable.”
Gorham, 32 N.E.3d at 1271 n.4 (citation omitted).
Because this theory was addressed on the merits by the
state court, AEDPA’s limitations on the review of state
judgments apply.

A decision is contrary to federal law “if the

state court either applies a legal rule that contradicts an
established Supreme Court precedent or reaches a different
result on facts materially indistinguishable from those of a
controlling Supreme Court precedent.”

Ouber, 293 F.3d at 26.

The Supreme Judicial Court did not apply an incorrect legal rule
– in fact, the court used a standard more favorable to
Petitioner than is required by federal law.

Gorham, 32 N.E.3d

at 1217 (“[B]ecause the defendant was convicted of murder in the
first degree, our review is under the statutory standard of G.L.
c. 278, § 33E, which is more favorable than the constitutional
standard for reviewing claims of ineffective assistance of
counsel.”); see also Sleeper v. Spencer, 510 F.3d 32, 39 (1st
Cir. 2007) (noting that this standard “is at least as protective
of defendants” as the federal constitutional rule).

The court

asked “whether there was any error in the course of the trial,
and, if there was, whether that error likely influenced the
jury's conclusion.”

Gorham, 32 N.E.3d at 1216-17 (emphasis

added).

9

Thus, any argument that the court applied a legal rule in
contradiction of federal law is unavailing.

And because the

Supreme Court of the United States has not yet decided a case
premised on similar factual grounds, Petitioner cannot point to
a factually analogous directing the opposite result.

See

Sleeper, 510 F.3d at 40 (“The Supreme Court has not identified
the circumstances under which an ineffective assistance of
counsel claim may be premised on a broken promise in an opening
statement.”).
Nor was the state court’s ruling an unreasonable
application of the proper legal standard.

A decision fits

within AEDPA’s “unreasonable application” provision if the state
court identifies the correct governing legal principle but
unreasonably applies it to the particular case.

Under

Strickland, “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
U.S. at 690.

Strickland, 466

Bearing in mind “the wide range of professionally

competent assistance” and the disturbing tendencies introduced
by evaluation by hindsight, a court facing an ineffectiveness
claim must give deference to trial counsel’s strategic
decisions.

Id.

This court’s review of the petition is thus

“doubly deferential,” given the deference due state courts under
AEDPA.

Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
10

Petitioner has not established that it was unreasonable for
the state court to reject his claim of ineffective assistance of
counsel regarding the intoxication defense.

Federal courts,

addressing similar claims, have distinguished between a promise
to “provide specific testimony from a particular witness” and a
mere promise to “present an additional defense.”
F.3d at 41.

Sleeper, 510

The former promise, when breached, is problematic

because it invites the inference that the specific evidence was
omitted after concluding that its introduction would hurt the
defense; breach of the latter premise, however, does no harm to
the ability to present other defenses effectively.

Id.

Here, assuming that counsel can be said in fact to have
promised to introduce evidence supporting a finding of voluntary
intoxication,4 his failure ultimately to do so did not prejudice
the broader defense that Petitioner lacked the intent necessary
for first degree murder.

In his closing statement, counsel made

the argument that Petitioner lacked “murderous intent.”

He

pointed to evidence supporting Petitioner’s account that the
killing was an accident resulting from a struggle over the

4

This is not entirely obvious from the oblique and conclusory
allusions found in the transcript. The first mention of
Petitioner’s intoxication occurred as an aside during counsel’s
narration of the account of the events given to the police after
Petitioner’s arrest: “Now, my client, by the way, was highly
intoxicated when this happened.” The second was in reference to
Petitioner’s memory of the events: “That was how he remembered
it in the intoxicated state he was in.”
11

weapon, including the presence of a fingerprint on the barrel of
the gun.

And he discussed other evidence indicating a lack of

planning before the killing, such as Petitioner’s hasty disposal
of the weapon, which further bolstered this defense.
More fundamentally, presenting more detailed evidence that
would have supported a voluntary intoxication instruction might
have undercut the primary defense that the shooting was an
accident.

Under Massachusetts law, “[a] jury instruction on

voluntary intoxication is required only where there is evidence
of ‘debilitating intoxication’ that could support a reasonable
doubt as to the defendant's ability to form the requisite
criminal intent.”
(2012).

Commonwealth v. Lennon, 977 N.E.2d 33, 36

Petitioner’s case depended on the jury believing he was

able to form the intent to scare the victim, which may be viewed
as inconsistent with a mental state of “debilitating
intoxication.”

Counsel’s choice to focus not on intoxication,

but on the evidence supporting an alternative, viable, defense
was not so unreasonable as to require a finding of deficient
performance.
2.

Insufficient Investigation

Through his proposed amendment, Petitioner also argues more
specifically that defects related to trial counsel’s
investigation support his claim for relief under Strickland.
asserts that his attorney was still attempting to locate
12

He

witnesses during the course of the trial and failed to request a
continuance for additional time to do so.

This claim was

addressed and rejected on the merits by the state court.
Gorham, 32 N.E.3d at 1271-73.
exhausted.

The claim has thus been

But AEDPA’s substantive limitations apply and relief

can be granted only if the state court decision was “contrary
to” or “involved an unreasonable application” federal law as
determined by the Supreme Court.

28 U.S.C. § 2254(d).

As discussed above, the Supreme Judicial Court applied a
more favorable standard than is required under federal law to
Petitioner’s ineffective assistance claim.

Thus, the decision

cannot be said to be based on an incorrect general legal
principle.
In his motion to amend the petition, Petitioner claims that
the Supreme Court’s decision in Kimmelman v. Morrison, 477 U.S.
365 (1986), compels finding the investigation inadequate.

In

Morrison, the Court held that a defense attorney performed
deficiently when he failed to conduct any pretrial discovery,
which led to the introduction of evidence allegedly obtained in
an unconstitutional search.

Id. at 385.

Because he sought no

discovery, counsel was unaware that the search even occurred and
thus did not file a timely suppression motion.

Crucially, the

Court noted that the attorney did not offer a strategic reason
for his course of action; rather, his decision to forgo
13

discovery was based on a mistaken understanding of criminal
procedure.

Id.

In this context, the Court repeated

Strickland’s guidance that “[c]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.”

Id. (quoting

Strickland, 466 U.S. at 691).
The petition before me does not present a case with “[s]uch
a complete lack of pretrial preparation.”

Id.

As the SJC

noted, Petitioner’s trial counsel hired an investigator, and the
investigator was told to inquire into Petitioner’s intoxication.
Gorham, 32 N.E.3d at 1272.

The analogy fails for the added

reason that it is apparent Petitioner’s counsel had reason
grounded in strategy for declining to pursue a deeper
investigation into Petitioner’s intoxication.

Counsel could

reasonably have decided that pursuing a defense based on the
theory that the shooting was accidental was more likely to lead
to a favorable result; under Strickland such a decision is due
considerable deference.

Under the circumstances, it was not

unreasonable for the state court to conclude that the
investigation was not deficient.
3.

State-Court Adjudication of the Investigation Claim

As part of its adjudication of Petitioner’s ineffective
assistance claim, the SJC held that because the record did not
contain a description of the results of trial counsel’s
14

investigation, it could not “assess whether or how trial
counsel's use of, or response to, the investigation was such
that it amounted to error that was likely to have influenced the
jury's conclusion.”

Gorham, 32 N.E.3d at 1272.

This followed

the trial court’s determination that the “absence of a full
accounting of the investigator's efforts [was] fatal” to the
motion for reconsideration on these grounds.

Id. at 1271.

Petitioner now argues that the denial of this claim without
holding a hearing justifies habeas relief.5
The SJC rejected this claim.

Id. at 1272.

In light of the

deference due state courts on habeas review, the claim must be
rejected in this court as well.

Petitioner “bears the burden of

proving that counsel's representation was unreasonable under
prevailing professional norms,” a rule that extends to claims of
inadequate investigation.

Morrison, 477 U.S. at 381.

In

rejecting his ineffective assistance claim in part on the

5

I note that Petitioner’s motion to amend styles this as a
challenge to an “unreasonable determination of facts” by the
state court under § 2254(d)(2). Nevertheless, I find it to be
“unreasonable application” claim in substance, because
Petitioner does not seem to be challenging any particular
factual finding made by the state court. Instead, he seems to
dispute the state court’s holding that he did not adduce enough
evidence to establish that the investigation is inadequate.
Since the question of whether the investigation was so
inadequate as to violate Strickland is a mixed question of law
and fact, the argument appears to be that the court misapplied
Strickland to the facts. Consequently, my analysis uses the
“unreasonable application” framework.
15

grounds that Petitioner did not provide enough information about
the investigation, the state courts merely held that he had
failed to meet his burden under Strickland through similar state
law ineffectiveness standards.

Petitioner was provided the

opportunity to submit additional evidence in support of his
claim – in fact, prior to the motion for reconsideration he
submitted an affidavit from the investigator hired by trial
counsel.

The state courts found this to be insufficient, and

this decision was not an unreasonable application of
Strickland’s governing principles.
C.

Ineffective Assistance of Counsel - Prejudice
Strickland’s prejudice prong provides an independently

sufficient ground to support the state court’s decision.6
Assuming counsel did err in any of the ways Petitioner has
alleged, Petitioner has nonetheless failed to establish a
“reasonable probability” that the result of the proceeding would
have been different.

As the Supreme Judicial Court noted, “the

case against [Petitioner] was strong.”
1271 n.4.

Gorham, 32 N.E.3d at

In the video-recorded statement that was shown to the

jury, Petitioner admitted to shooting the victim.

Moreover, the

jury was presented with evidence that there was drinking of

6

I note that on habeas review, the court’s “ultimate conclusion”
is what must be evaluated, not its reasoning. Rashad v. Walsh,
300 F.3d 27, 35 (1st Cir. 2002).
16

alcohol at the party; consequently, evidence that Petitioner was
intoxicated earlier in the night would not have meaningfully
reshaped the jury’s understanding of the relevant later events.
In sum, Petitioner has not demonstrated a “probability
sufficient to undermine confidence in the outcome” such that the
result would have differed without the alleged errors by
counsel.

Strickland, 466 U.S. at 694.
III. CONCLUSION

The touchstone of federal habeas review is that “a statecourt decision must be unreasonable, as opposed to merely
incorrect,” for relief to be afforded.

Ouber, 293 F.3d at 26.

Petitioner has failed to establish that the Supreme Judicial
Court’s ruling was unreasonable in his case.
For the reasons set forth more fully above, after GRANTING
Petitioner’s Motion to Amend (Dkt. No. 31), I GRANT Respondent’s
Motion (Dkt. No. 23) for Judgment on the Pleadings and direct
the Clerk to enter judgment dismissing the petition.

/s/ Douglas P. Woodlock________
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

17