Camacho v. Zenk

Filing 31

Judge Richard G. Stearns: ORDER entered adopting Report and Recommendations re 29 Report and Recommendations. "In sum, the Recommendation is ADOPTED and the petition is DISMISSED with prejudice. Any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing no meritorious or substantial basis supporting an appeal. The Clerk is instructed to enter the dismissal and close the case. (DT)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-11826-RGS
JESSE CAMACHO,
Petitioner
v.
MICHAEL ZENK,
Respondent
MEMORANDUM AND ORDER
ON THE REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
August 22, 2019
STEARNS, D.J.
I agree with Magistrate Judge Dein that neither of the two grounds
advanced by petitioner Camacho merit the grant of habeas relief.

In the

first instance, the Supreme Judicial Court’s (SJC) determination that the
Commonwealth did not withhold exculpatory evidence – that is, the possible
gang affiliation of participants in the brawl in which the petitioner murdered
the victim – was not unreasonable. Even if such evidence existed (the SJC
appears to have been skeptical), it was never shown to have been in the
possession of the Commonwealth.

It has long been the rule that a

prosecutor’s duty to disclose potentially exculpatory evidence, as mandated

by Brady v. Maryland, 373 U.S. 83 (1963), does not extend beyond evidence
accessible to her and her agents. As the SJC observed in an earlier case
discussing Brady, a “prosecutor cannot be said to suppress that which is not
in his possession or subject to his control.” Commonwealth v. Donahue,
396 Mass. 590, 596 (1986); see also United States v. Bender, 304 F.3d 161,
164 (1st Cir. 2002) (“Neither the relevant Supreme Court precedent
under Brady nor our decision in [United States v.] Osorio[, 929 F.2d 753 (1st
Cir. 1991)] requires a prosecutor to seek out and disclose exculpatory or
impeaching material not in the government’s possession.”).
Second, I agree with Magistrate Judge Dein that the SJC correctly
identified and applied the constitutional standard governing claims of
ineffective assistance of counsel, as it was set out in Strickland v.
Washington, 466 U.S. 668 (1984). As Strickland made clear, “[j]udicial
scrutiny of counsel’s performance must be highly deferential,” and “every
effort [should] be made to eliminate the distorting effects of hindsight.” Id.
at 689.

A reviewing 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
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trial strategy.’” Id., quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955);
see also United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978) (counsel’s
conduct is considered reasonable if it falls “‘within the range of competence
demanded of attorneys in criminal cases.’”), quoting McMann v.
Richardson, 397 U.S. 759, 770-771 (1970). Here, the crux of petitioner’s
complaint about his counsel’s performance is centered on counsel’s failure
to accurately predict the degree of murder that the jury would ultimately
find.

Clairvoyance is not the standard against which a counsel’s

performance is measured. See Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.
2006) (a lawyer’s performance under Strickland is deficient “only where,
given the facts known at the time, counsel’s advice was so patently
unreasonable that no competent attorney would have made it.”).
In sum, the Recommendation is ADOPTED and the petition is
DISMISSED with prejudice. 1 Any request for the issuance of a Certificate
of Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing

On August 21, 2019, petitioner through counsel filed an Objection to
the Report and Recommendation that for the most part repeats the
arguments made below in support of the Petition without identifying any
flaws in the reasoning of the Magistrate Judge’s Report or in the conclusions
that she reached.
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no meritorious or substantial basis supporting an appeal.

The Clerk is

instructed to enter the dismissal and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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