Yildirim v. DeMoura

Filing 21

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 18 Motion for Judgment on the Pleadings (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CENGIZ YILDIRIM

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Plaintiff,
v.
DOUGLAS DEMOURA
Defendant.

CIVIL ACTION NO.
16-11780-DPW

MEMORANDUM AND ORDER
November 20, 2017
Petitioner Cengiz Yildirim seeks a writ of habeas corpus
challenging his state court drug convictions.

The Respondent,

his prison custodian, has moved for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c).

Finding nothing contrary to

established federal law in the state court convictions, I will
grant Respondent’s motion.
I. BACKGROUND
A.

Charged Conduct
In June 2010, as part of an investigation conducted by the

Massachusetts State Police Narcotics Unit for Suffolk County,
Trooper Hollis Crowley, in an undercover capacity, was assigned
to purchase narcotics from Petitioner.

In the course of

investigation, the unit had received a phone number of interest
believed to be Yildirim’s number by which Trooper Crowley could
contact him.

Trooper Crowley contacted Yildirim on four

separate occasions — June 8, 2010, June 17, 2010, June 29, 2010,
and June 30, 2010 — for the purpose of purchasing cocaine.

When

speaking with Yildirim on the phone, she would request a
specific amount of cocaine and subsequently would meet him to
make the exchange.

On June 8, she purchased $100.00 worth of

cocaine; on both June 17 and June 29, she purchased $150.00
worth of cocaine, and on June 30, she purchased $1,100.00 worth
of cocaine.
After the final exchange on June 30th, state troopers who
had been providing surveillance for the exchange moved in and
arrested Yildirim.

The troopers, who had earlier secured a

search warrant to search Yildirim’s apartment, escorted Yildirim
and his girlfriend, Erin Darden, to the apartment and executed
the search warrant.

The evidence seized was removed from the

apartment.
Once the search was complete, Trooper Scott Holland
interviewed Yildirim in the apartment and recorded the
conversation.

Yildirim apparently1 told the troopers that the

responsibility was all his and that Darden had nothing to do

1

The trial transcript notes that portions of the recording were
played for the jury, but only briefly summarizes the content of
what Yildirim said through the Commonwealth’s witnesses.
Neither a full transcript of the recording nor the recording
itself was provided in the record before me. Consequently, the
recitation above is a paraphrase that would appear to be
uncontested.
2

with his transactions.
On August 10, 2010, a grand jury indicted Yildirim on two
counts of trafficking in cocaine, in violation of MASS. GEN. LAWS
ch. 94C § 32E(b), three counts of distribution of cocaine,
subsequent offense, in violation of MASS. GEN. LAWS ch. 94C, §
32A(b), and four counts of drug violations near a school, in
violation of MASS. GEN. LAWS ch. 94C, § 32J.
B.

[SA 145]

Trial
Yildirim was tried by a jury from June 28, 2011 to June 30,

2011.

At trial, the Commonwealth offered the testimony of

Trooper Crowley, in which she described her interactions with
Yildirim and the four purchases she made; the testimony of other
troopers involved in the investigation, including Trooper
Holland who testified regarding the search of Yildirim’s
apartment and the statement Yildirim gave to the troopers; the
testimony of two chemists; and the testimony of a Boston Police
Detective.

The Commonwealth also introduced the physical

evidence obtained during the investigation, including the
cocaine seized in Yildirim’s apartment.
During defense’s cross-examination of Trooper Crowley on
the morning of June 29, 2011, Yildirim’s trial counsel asked her
if she knew an individual named David Ring, to which she
answered affirmatively.

When defense counsel asked whether Ring

was a person involved in narcotics, the Commonwealth requested a
3

sidebar discussion.

At sidebar, defense counsel asserted that

Ring provided Trooper Crowley with Yildirim’s name and suggested
that Ring’s identity and relationship to the investigation would
be relevant to the defense’s case.

The Commonwealth requested a

brief break to research the issue further.
After the break, the Commonwealth continued to object to
defense counsel’s inquiry about Ring, prompting the judge to ask
defense counsel to make an offer of proof.

Defense counsel

replied that “I think the evidence is going to show that David
Ring gave this trooper my client’s phone number and set up
contact with this person, and whether she knows or not I’ll find
out pretty soon.

David Ring then gave my client a whole bunch

of drugs which then are found in his house when he’s charged.”
Subsequently, defense counsel suggested that Yildirim was going
to testify that Ring put the drugs in his house.2
The judge ruled that defense counsel could ask Trooper
Crowley whether she received the petitioner’s number from Ring,
whether she had personal knowledge of how drugs ended up in
Yildirim’s apartment, and whether she had any personal knowledge
of Ring’s involvement.

Defense counsel objected to the judge’s

ruling but nevertheless complied with it.

2

Yildirim ultimately did not testify.
4

When cross-examination resumed, Trooper Crowley again
testified that as an undercover drug detective, she knew Ring in
her professional capacity.

After a series of questions

attempting to explore whether Ring was acting as an informant
for the state police, questions to which the Commonwealth
objected, the judge ruled that defense counsel could not inquire
into Ring’s involvement with the state police beyond the
investigation into Yildirim.
After the lunch recess on June 29, 2011, the judge called
counsel up to sidebar to disclose something the clerk observed
during Trooper Crowley’s testimony.

During the testimony, the

clerk had passed a note to the judge saying that the clerk saw
an attorney in the back of the courtroom nodding yes and no as
Trooper Crowley testified, in particular during the testimony
about Ring.

The judge stated that he “personally didn’t observe

it” and that after the clerk passed him the note he continued
watching the attorney but the attorney “made no such motions
after [he] started to observe him.”

The judge stated that he

believed the nodding was a reaction to his evidentiary rulings
limiting the scope of cross-examination, which the judge
characterized as “not great, but it’s a lot better than
responding to the testimony.”
The judge further noted that it was up to defense counsel
“if there’s any relief you want or if any discussion needs to be
5

had” and gave defense counsel until the end of the day “if
there’s anything you want to do about that.”

Defense counsel

stated that he would think it over, but in the end never lodged
any motions or objections related to the incident.
Throughout the rest of the trial, defense counsel was
afforded the opportunity to cross-examine the Commonwealth’s
witnesses about Ring, subject to the same restrictions placed on
Trooper Crowley’s cross-examination.

In the afternoon on June

29, 2011, defense counsel asked Trooper Scott Cooper about Ring.
Trooper Cooper testified that Ring talked to Trooper Crowley
about illicit dealing in drugs, that Ring gave Trooper Cooper
Yildirim’s phone number, and that Ring introduced Trooper
Crowley to Yildirim.

Then, on June 30, 2011, defense counsel

cross-examined Trooper Holland and asked him about Ring.
Trooper Holland testified that he had heard of the name David
Ring and had heard he was involved in Yildirim’s case.

When

asked whether Ring was an informant, Trooper Holland replied
“Yeah, he’s a rat.”
Yildirim was convicted of one count of trafficking in
fourteen grams or more of cocaine, one count of trafficking in
200 grams or more of cocaine, and three counts of distribution

6

of cocaine.3

He was sentenced to fifteen years to fifteen years

and one day in state prison.
C.

Post-Trial Procedural History
Yildirim filed a timely appeal of his convictions to the

Massachusetts Appeals Court.

While his appeal was pending, he

filed a motion for post-conviction discovery as to the 200 gram
trafficking count on the relationship between David Ring and the
investigative and prosecution team.

On February 3, 2014, the

judge who presided over his trial denied Yildirim’s motion for
post-conviction discovery, finding that Ring’s identity was not
newly discovered because Yildirim knew of Ring before the trial.
On November 20, 2015, the Appeals Court upheld all of
Yildirim’s convictions and affirmed the denial of the motion for
post-conviction discovery.

Commonwealth v. Yildirim, 40 N.E.3d

1057, 2015 WL 7356554, at *4 (Mass. App. Ct. 2015).

The Appeals

Court specifically considered and rejected the three theories of
relief Yildirim presents in his current petition: that the judge
impermissibly restricted his ability to cross-examine
prosecution witnesses regarding Ring, that the judge failed to
investigate, sua sponte, the effect, if any, of the attorney’s
gestures during Trooper Crowley’s testimony, and that his

3

The Commonwealth filed a nolle prosequi on the four related
school zone charges and on the subsequent offense portions of
the indictments charging distribution of cocaine.
7

attorney was ineffective for failing to request an investigation
into the effect of the attorney’s gestures.
As to the first issue of the judge’s restrictions on crossexamination, the court stated that although Yildirim had a right
under the Sixth Amendment and art. 12 of the Massachusetts
Declaration of Rights to cross-examine the prosecution’s
witnesses, “the judge has discretion to limit cross-examination
in certain circumstances, including, as here, where such
questioning includes a collateral matter and where the theory of
defense is too speculative.”

Id. at *3.

The court noted that

Yildirim’s trial counsel “was permitted to ask the witness about
Ring’s role in the investigation,” but that the judge did not
abuse his discretion by preventing inquiry to Ring’s prior
criminal history.

Id.

As to the second issue of the attorney’s gestures, the
court discussed how under Massachusetts state law, “[w]hen a
judge is presented with a claim that the jury has been exposed
to an extraneous influence, he must determine whether the
extraneous material has the potential to prejudice the jury and,
if so, he must conduct a voir dire examination of the jurors.”
Yildirim, 2015 WL 7356554, at *2 (citing Commonwealth v.
Tennison, 800 N.E.2d 285, 291 (Mass. 2003)).

The court found

there was no evidence on the record indicating that any of the
jurors saw the attorney’s gestures.
8

Id.

Because there was no

evidence from which to find that the jury was exposed to
extraneous influence, the court found that the trial judge was
not required under Massachusetts law to take further action.
Id.
Finally, the court found Yildirim had failed to show that
his trial counsel was ineffective for failing to request an
investigation into the potential effect on the jury of the
attorney’s gestures.

Yildirim, 2015 WL 7356554, at *2.

Even if

it assumed “that a reasonable attorney would have requested an
inquiry into the circumstances,” the court concluded “the record
does not support the conclusion that an inquiry would have
uncovered any extraneous influence on the jury.”

Id.

On January 27, 2016, the Supreme Judicial Court declined to
conduct further review.
(Mass. 2016).

Commonwealth v. Yildirim, 44 N.E.3d 862

Yildirim did not seek a writ of certiorari from

the United States Supreme Court.

Instead, he filed the instant

petition.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), I may not grant a writ of habeas corpus to “any
claim that was adjudicated on the merits in state court unless
the state court’s decision either (1) ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
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States,’ or (2) ‘was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.’”

Brown v. Ruane, 630 F.3d 62, 66-67 (1st Cir.

2011) (quoting 28 U.S.C. ' 2254(d)(1)-(2)).
A state court’s decision is “contrary to” clearly
established federal law “if it ‘contradicts the governing law
set forth in the Supreme Court’s cases or confronts a set of
facts that are materially indistinguishable from a decision of
the Supreme Court and nevertheless arrives at a result different
from its precedent.’”

Id. at 67 (quoting John v. Russo, 561

F.3d 88, 96 (1st Cir. 2009)).

A state court’s decision can

involve “an unreasonable application of clearly established
federal law if the state court ‘identifies the correct governing
legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.’”

Id. (quoting Williams v. Taylor, 529 U.S.

362, 413 (2000)).
III. ANALYSIS
A.

Restrictions on Cross-Examination About David Ring
In arguing that the trial judge’s restrictions on cross-

examination denied him the federal constitutional right to
present his defense effectively, Petitioner suggests his theory
of defense was that Ring had set him up to avoid his own
prosecution on criminal charges.
10

The Constitution grants a criminal defendant the right to
have “a meaningful opportunity to present a complete defense.”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006).4

Balanced

against this right is the “broad latitude” enjoyed by states
“to establish rules excluding evidence from criminal trials.”
United States v. Scheffer, 523 U.S. 303, 308 (1998).

“While the

Constitution thus prohibits the exclusion of defense evidence
under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote,
well-established rules of evidence permit a trial judge to
exclude evidence if its probative value is outweighed by certain
other factors such as unfair prejudice, confusion of the issues,
or potential to mislead the jury.”

Holmes, 547 U.S. at 326.

The general right to present a defense is not easily
reduced to specific rules or tests.

Rather, “decisions

involving a defendant’s constitutional right to present a
defense demonstrate the generality of the right and the
substantial element of judgment required of trial courts in
excluding defense evidence.”

Brown, 630 F.3d at 72.

In the

habeas context, “[t]he more general the rule, the more leeway

4

 The Supreme Court has not resolved whether this right lies in
the Due Process Clause of the Fourteenth Amendment, in the
Compulsory Process or Confrontation Clauses of the Sixth
Amendment, or emerges from the interplay of these provisions.
Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also Brown, 630
F.3d at 71 n.12.  

11

[state] courts have in reaching outcomes in case-by-case
determinations.”
(2004).

Yarborough v. Alvarado, 541 U.S. 652, 664

I must accordingly afford the Appeals Court’s decision

“substantial deference” and may only upset its determination if
I “conclude that it falls outside of the ‘broader range of
reasonable judgements’ [sic] that accompanies the application of
so general a legal test.” Brown, 630 F.3d at 73 (quoting Locke
v. Cattell, 476 F.3d 46, 51 (1st Cir. 2007)).
As an initial matter, and as the Appeals Court correctly
noted, the trial judge did not exclude all inquiry into Ring’s
involvement in the case.

Yildirim was permitted to cross-

examine the government’s witnesses about their personal
knowledge of Ring and his involvement in Yildirim’s case.

He

elicited testimony from the government’s witnesses on these
issues, including Trooper Crowley’s statement that she knew Ring
in her professional capacity as an undercover detective, Trooper
Cooper’s statement that Ring provided the state police with
Yildirim’s phone number and introduced Trooper Crowley to
Yildirim, and Trooper Holland’s description of Ring as “a rat.”
Such testimony presented the jury with Ring’s involvement in the
case, provided some support for Yildirim’s theory of defense,
and would have laid a foundation for the testimony that defense
counsel anticipated Yildirim would offer regarding his
relationship with Ring.
12

I cannot say that the Appeals Court’s decision to affirm
the limits placed on questions about Ring was unreasonable.

The

questions excluded at trial focused on Ring’s own criminal
history and involvement with the State Police in cases beyond
the petitioner’s.

For example, Yildirim’s counsel asked Trooper

Crowley about whether Ring was involved in the sale of marijuana
and whether Ring was still providing information to the state
police.

The Appeals Court did not act unreasonably when it

found such questions addressed a collateral matter beyond the
scope of the petitioner’s trial.

Such questions had the

potential to confuse the jury by bringing in investigations and
events irrelevant to the charges against the petitioner and it
would not be unreasonable to find that the inquiries were only
obliquely probative of Yildirim’s defense theory.

Holmes, 547

U.S. at 326.
Nor was it unreasonable to find, as the Appeals Court did,
that the defense theory was “too speculative” and unsupported by
the record.

Yildirim, 2015 WL 7356554, at *3.

After the

Commonwealth objected to any questions about Ring, defense
counsel explained the testimony he anticipated Yildirim would
provide regarding his relationship with Ring.

The Appeals Court

did not act unreasonably in finding that Yildirim’s testimony
may have supported a limited inquiry into Ring’s involvement,
but that further attempts to show that the cocaine belonged to
13

Ring, particularly through inquiries into Ring’s own alleged
criminal history, were unsupported by the record.

Holmes, 547

U.S. at 327 (“[E]vidence proffered by criminal defendants to
show that someone else committed the crime . . . may be excluded
where it does not sufficiently connect the other person to the
crime, as, for example, where the evidence is speculative or
remote . . . .”).
In his petition, Yildirim does not invoke directly the
Sixth Amendment’s Confrontation Clause.5

His failure to invoke

this ground explicitly in his petition may itself be sufficient
to find that he has waived the issue as grounds for relief.
Logan v. Gelb, 790 F.3d 65, 70 (1st. Cir. 2015) [per curiam].
For the sake of completeness, however, I will also address his
arguments regarding the restrictions on cross-examination
through the lens of the Confrontation Clause.
The Confrontation Clause guarantees the right of an accused
in a criminal prosecution “to be confronted with the witnesses
against him.”

U.S. Const. Amend. VI.

“The main and essential

purpose of confrontation is to secure for the opponent the
opportunity of cross-examination.”
308, 315-16 (1974).

Davis v. Alaska, 415 U.S.

The Confrontation Clause does not, however,

5

Yildirim touched upon the Confrontation Clause briefly in his
appeal to the Appeals Court and the Appeals Court framed its
analysis of the restrictions on cross-examination in part
through the Sixth Amendment. Yildirim, 2015 WL 7356554, at *3.
14

prevent a trial judge from placing “reasonable limits” on crossexamination “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.”

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

Whether analyzed through the right to present a defense or
through the Confrontation Clause, the Appeals Court’s decision
regarding the cross-examination about Ring was neither contrary
to nor an unreasonable application of clearly established
federal law.

As discussed above, the trial judge did permit

some cross-examination of the Commonwealth’s witnesses regarding
Ring’s involvement in the case.

The Appeals Court could

reasonably conclude that the limits placed on inquiry into
Ring’s criminal history and involvement in other cases were the
sort of “reasonable limits” based on concerns about confusion of
the issues and relevancy that a trial judge may place on crossexamination without offending the petitioner’s Confrontation
Clause rights.

Van Arsdall, 475 U.S. at 679.

For the reasons discussed above, the limits on crossexamination enforced by the trial judge and affirmed by the
Appeals Court do not provide grounds upon which I can grant
habeas relief.

15

B.

Trial Judge’s Failure to Determine Whether Jury Exposed to
Extraneous Influence
Petitioner next argues that the trial judge failed to

determine whether the jury was exposed to an extraneous
influence.

Petitioner asserts that the Commonwealth’s failure

to prove that the attorney’s gestures did not contribute to the
guilty verdict requires his conviction be reversed.
The Sixth Amendment guarantees in criminal prosecutions the
right to a trial “by an impartial jury.”

U.S. Const. Amend. VI.

“Principles of due process also guarantee a defendant an
impartial jury.”

Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976)

(citing Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Morgan
v. Illinois, 504 U.S. 719, 726 (1992) [White, J.] (“[T]he
Fourteenth Amendment’s Due Process Clause itself independently
require[s] the impartiality of any jury empaneled to try a
cause.”).

Although “[i]mpartiality is not a technical

conception,” United States v. Wood, 299 U.S. 123, 145 (1936), an
impartial jury is generally understood as one free from biases
and free from improper extraneous influences.

Remmer v. United

States, 347 U.S. 227, 229 (1954) [Minton, J.]. See generally
Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017) (“Like
all human institutions, the jury system has its flaws, yet
experience shows that fair and impartial verdicts can be reached
if the jury follows the court’s instructions and undertakes

16

deliberations that are honest, candid, robust, and based on
common sense.”).
At the same time, “due process does not require a new trial
every time a juror has been placed in a potentially compromising
situation.”

Smith v. Phillips, 455 U.S. 209, 217 (1982).

Because “it is virtually impossible to shield jurors from every
contact or influence,” the Constitution requires simply “a jury
capable and willing to decide the case solely on the evidence
before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such
occurrences when they happen.”

Id.

It bears repeating that when notified about the attorney’s
gestures during Trooper Crowley’s testimony, Yildirim’s counsel
chose not to object, request an inquiry into the potential
effect on the jurors, move for a mistrial, or make any other
effort to rectify or preserve the issue.

The Appeals Court’s

decision noted the trial judge’s duty to inquire of the jury
“[w]hen a judge is presented with a claim that the jury has been
exposed to an extraneous influence” under Massachusetts state
law.

Yildirim, 2015 WL 7356554, at *2.

The record contains no

evidence indicating that any jurors had observed the attorney’s
gestures and therefore no evidence that they had been exposed to
an extraneous influence.

The Appeals Court, of course,

concluded that the lack of information in the record as to
17

whether any juror witnessed the gestures was due at least in
part to the failure of Yildirim’s counsel to seek any relief
from the trial judge.

Id.

I will turn to the significance of

that failure in the next section of this Memorandum.
The sole question for me to resolve as to this ground is
whether clearly established federal law required the trial judge
to hold a hearing, sua sponte, in order to determine if the jury
had been exposed to any extraneous influence.
not.

I conclude it did

In Sims v. Rowland, the Ninth Circuit considered a habeas

corpus petition similarly alleging that “the state court’s
failure to hold an evidentiary hearing sua sponte when presented
with evidence of juror bias is contrary to, or an unreasonable
application of, clearly established federal law as determined by
the United States Supreme Court.”
2005).

414 F.3d 1148, 1153 (9th Cir.

The Ninth Circuit held that it was not because “the

Supreme Court has not yet decided whether due process requires a
trial court to hold a hearing sua sponte whenever evidence of
juror bias comes to light.”

Id.6

To be sure, under both First Circuit and Supreme Court
precedent, a judge has certain duties, when presented with a
motion or other request by the parties, to hold hearings in
order to determine whether a jury has been biased by an

6

 In the years since the Ninth Circuit’s observation in Rowland,
the Supreme Court still has not decided this issue.

18

extraneous influence.

Smith, 455 U.S. at 215 (“This Court has

long held that the remedy for allegations of juror partiality is
a hearing in which the defendant has the opportunity to prove
actual bias.); United States v. Gaston-Brito, 64 F.3d 11, 12
(1st Cir. 1995) (“‘When a nonfrivolous suggestion is made that a
jury may be biased or tainted by some incident, the district
court must undertake an adequate inquiry to determine whether
the alleged incident occurred and if so, whether it was
prejudicial.’”) (quoting United States v. Ortiz-Arrigoitia, 996
F.2d 436, 442 (1st Cir. 1993)).

However, as of now, there is

simply no Supreme Court precedent clearly establishing that a
trial judge must hold a hearing, sua sponte, in order to
determine if the jury had been exposed to any extraneous
influence.
C.

Defense Counsel’s Failure to Object and Move for Mistrial
Due to Possible Extraneous Influence on Jury
Finally, petitioner argues that his trial counsel was

ineffective and deprived him of an available defense by failing
to seek any remedy after being made aware of the attorney’s
gestures during Trooper Crowley’s testimony.
The Sixth Amendment’s right to counsel in a criminal
proceeding “‘is the right to the effective assistance of
counsel.’” Strickland v. Washington, 466 U.S. 668, 686 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

19

Under the test for evaluating ineffective assistance of counsel
claims formulated in Strickland, a defendant must first show
that “counsel’s representation fell below an objective standard
of reasonableness” and second demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Id. at

688, 694.
Under the prejudice step, “the question is not whether a
court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently.”
Richter, 562 U.S. 86, 111 (2011).

Harrington v.

Rather, “[t]he likelihood of

a different result must be substantial, not just conceivable.”
Id. at 112.

When an ineffective assistance of counsel claim is

raised in a habeas petition, ' 2254(d) imposes a further burden.
The inquiry then “is not whether counsel’s actions were
reasonable,” but rather “is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.”

Id. at 105.

The Appeals Court assumed, without deciding, that “a
reasonable attorney would have requested an inquiry into the
circumstances,” but still found that “the record does not
support the conclusion that an inquiry would have uncovered any
extraneous influence on the jury.”
20

Yildirim, 2015 WL 7356554,

at *2.7

The Appeals Court therefore held that “without the

benefit of additional information, we cannot determine whether
trial counsel was ineffective as alleged.”

Id.

It was not unreasonable for the Appeals Court to find that
petitioner had failed to prove his ineffective assistance of
counsel claim.

Assuming without deciding, as the Appeals Court

did, that a reasonable attorney would have sought some form of
relief when presented with a potential extraneous influence on
the jury, petitioner has not shown that the likelihood of a
different result was substantial.

Harrington, 562 U.S. at 112.

At worst, it could be said that Trooper Crowley was being
prompted to respond in a certain way to questions about Ring; it
is unclear what effect witnessing such encouragement would have
on the credence given by jurors to the statements made by
Trooper Crowley, if they had seen them.

Visible prompting by

others, in fact, might diminish the credibility of the witness’s
testimony.
Even under the best case scenario for the Petitioner
regarding this incident, the other evidence presented by the
Commonwealth overwhelms any likelihood of a different result to

7

The Appeals Court did not cite directly to the two-part
Strickland inquiry, but cited instead to the framework outlined
in Commonwealth v. Saferian, 315 N.E.2d 878, 882-83 (Mass.
1974). The First Circuit has held that “for habeas purposes,
Saferian is a functional equivalent of Strickland.” Ouber v.
Guarino, 293 F.3d 19, 32 (1st Cir. 2002).
21

the trial.

In addition to the evidence of repeated hand to hand

transactions, the Commonwealth introduced uncontroverted
physical evidence placing cocaine in Yildirim’s apartment, as
well as Yildirim’s own recorded statement in which he took
responsibility for all four of the drug transactions.

In light

of such evidence, it was not unreasonable for the Appeals Court
to find that Petitioner failed to establish an ineffective
assistance of counsel claim under the second — prejudice — prong
of Strickland.
Petitioner also appears to argue that defense counsel was
ineffective because he failed to object and move for a mistrial
after the trial judge failed to hold a hearing, sua sponte, on
the possible extraneous influence of the attorney’s gestures on
the jury.

Because I have found that the judge had no sua sponte

duty to convene a hearing, I likewise find that defense counsel
was not obligated to object or move for a mistrial based on the
judge’s failure to do so.

Toliver v. Hulick, 295 Fed. App’x 55,

58 (7th Cir. 2008) [per curiam] (trial judge did not have a duty
to question the jurors individually after jurors were exposed to
improper communication and “since there was no constitutional
error on the part of the trial judge, counsel did not perform
ineffectively by holding his tongue”).
IV.

CONCLUSION

For the reasons discussed above, I grant respondent’s
22

motion for judgment on the pleadings and deny the petition for a
writ of habeas corpus.

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

23