Faulk v. Medeiros
Filing
38
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, Faulk's petition for writ of habeas corpus, ECF No. 1 , is DENIED. SO ORDERED."(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
KENNETH FAULK,
)
)
Petitioner,
)
v.
)
)
SEAN MEDEIROS,
)
)
Respondent.
)
___________________________________)
CIVIL ACTION
NO. 16-11893-WGY
YOUNG, D.J.
July 27, 2018
MEMORANDUM AND ORDER
I.
INTRODUCTION
Petitioner Kenneth Faulk (“Faulk”) is a state prisoner who
was convicted of murder in the second degree and carrying a
firearm without a license in the Massachusetts Superior Court
sitting in and for the County of Plymouth on November 18, 2010.
On September 26, 2016, Faulk filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging these
convictions.
Respondent Sean Medeiros (“Medeiros”) opposes the
petition.
For the reasons discussed below, this Court DENIES Faulk’s
habeas corpus petition.
1
II.
BACKGROUND
Faulk was indicted for murder in the first degree and for
carrying a firearm without a license.
Pet’r’s Mem. Supp. Pet.
Habeas Corpus Relief (“Pet’r’s Mem.”) 2, ECF No. 30.
On
November 18, 2010, after a jury trial in the Massachusetts
Superior Court, the jury found the petitioner guilty of the
lesser included offense of murder in the second degree and
guilty of the firearms charge.
Id.
The Massachusetts Appeals Court summarized the evidence
introduced at Faulk’s trial as follows:
As shown by videotape surveillance footage obtained from a
camera system installed at the scene, on April 30, 2007,
[Faulk] entered 33 Dover Street, Brockton, with the victim,
Derrick Wilson, right behind him. [Faulk] stopped, turned,
and appeared to speak to the victim. The victim then
followed the defendant up a set of stairs. Two minutes
later, the victim slid feet first down the stairs, and lay
at the foot of the stairs, struggling. Within seconds,
[Faulk] came down the stairs, stepped over the victim, and
left the building. A few minutes later, [Faulk] returned
with a female companion, and kicked the victim's foot and
his head.
According to the medical examiner, the victim died from a
gunshot wound to the chest. It appears from the video
footage that no one entered or left through the secondfloor door at the time of the incident. There was evidence
that the third floor of the building was locked. When
[Faulk] initially spoke with police, he told them that he
had not entered the building with the victim. After being
shown still images from the video, he acknowledged his
presence but claimed not to know if he had heard gunshots,
or if there had been any kind of fight or struggle on the
stairs. He said that he kicked the victim to wake him up.
A cigarette butt at the second-floor landing was linked to
[Faulk] by deoxyribonucleic acid (DNA) evidence, and a
2
projectile found in the wall at the top of the second-floor
landing was linked to the victim by DNA evidence. However,
no weapon or shell casings were recovered. Strands of
“Mardis Gras” beads worn by the victim were broken, and
beads were found scattered -- including one at the top of
the landing -- suggesting a struggle.
Commonwealth v. Faulk, No. 11-P-1663, 2016 WL 767584, at *1
(Mass. App. Ct. Feb. 29, 2016).
The trial judge sentenced Faulk to life on the murder
charge and four to five years on the firearm charge to run
concurrent with the sentence imposed on the murder charge.
Pet’r’s Mem. 2.
2010. 1 Id.
The petitioner timely appealed on November 23,
Faulk filed a motion for a new trial, which was
denied without a hearing on June 6, 2014.
Id.
On June 13,
2014, Faulk timely appealed the order denying his motion for a
new trial and the Appeals Court affirmed the judgment of his
convictions and the denial of his motion for a new trial.
Id.
In March 2016, Faulk filed an application for leave to obtain
further appellate review (“ALOFAR”) in the Massachusetts Supreme
Judicial Court.
Pet’r’s Mem. 3.
The Supreme Judicial Court
denied Faulk’s ALOFAR on March 31, 2016.
Id.
On September 26, 2016, Faulk filed a petition for a writ of
habeas corpus in this Court pursuant to 28 U.S.C. § 2254; Pet.
Writ Habeas Corpus (“Pet’r’s Pet.”), ECF No. 1.
1
On May 1, 2017,
The Massachusetts Appeals Court entered the case on
September 23, 2011. Pet’r’s Mem. 2.
3
Faulk moved for leave to amend the petition, seeking to add two
more claims, and Medeiros opposed the motion.
Pet’r’s Mot. Am.,
ECF No. 27; Resp’t’s Opp’n Mot. Am., ECF No. 28.
On May 15,
2017, this Court denied Faulk’s motion to amend, explaining that
allowing the motion would render the petition a mixed petition
subject to dismissal.
Electronic Order, ECF No. 29.
On May 22,
2017, Faulk filed a memorandum of law in support of his
petition, Pet’r’s Mem., which Medeiros opposed, Resp’t’s Mem.
Opp’n Pet. Habeas Corpus (“Resp’t’s Opp’n”), ECF No. 35.
II.
STANDARD OF REVIEW
The standard of review of habeas corpus petitions is set
forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”).
v. Richter, 562 U.S. 86, 97 (2011).
Harrington
Under this standard, a
federal court may not grant a writ of habeas corpus unless the
underlying state court adjudication resulted in a decision that
either “(1) ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United 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)).
4
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 involves 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)) (alteration in
original).
Under 28 U.S.C. § 2254(e)(1), “‘a determination of a
factual issue made by a State court shall be presumed to be
correct.’
The petitioner bears the burden of overcoming that
presumption by providing ‘clear and convincing evidence.’”
Teti
v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (quoting 28 U.S.C. §
2254(e)(1)).
“The ‘presumption of correctness is equally
applicable when a state appellate court, as opposed to a state
trial court, makes the finding of fact.’”
Id. at 58 (quoting
Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003)).
The Supreme Court in Chapman v. California, 386 U.S. 18
(1967), articulated the constitutional harmless error standard,
which provides that, on direct appellate review, an error at
5
trial affecting the defendant’s constitutional rights will be
deemed harmless only if it can be shown to be harmless beyond a
reasonable doubt.
Id. at 24.
In Brecht v. Abrahamson, 507 U.S.
619 (1993), the Court held that a federal court on collateral
review of a state appellate court’s application of Chapman
should not apply the same harmless error standard but instead
use an “actual prejudice” standard.
Id. at 637.
Specifically,
as the Court explained in Brecht, a habeas petitioner in such a
case must show that the error “had substantial and injurious
effect or influence in determining the jury's verdict.”
Id.
(quoting Kotteakos v. Unites States, 328 U.S. 750, 776 (1946)).
In Mitchell v. Esparza, 540 U.S. 12 (2003), the Supreme
Court explained that “when a state court determines that a
constitutional violation is harmless [under Chapman], a federal
court may not award habeas relief under § 2254 unless the
harmlessness determination itself was unreasonable.”
Fry v.
Pliler, 551 U.S. 112, 119 (2007) (describing Mitchell).
In Fry v. Pliler, the Court held that the Brecht standard
“obviously subsumes” the Chapman standard, and federal courts
need not formally apply both tests; the Brecht test alone is
sufficient.
Id. at 120.
As the First Circuit has noted,
“[t]here is clear logic to that position: if an error had a
‘substantial and injurious’ effect on a jury's verdict (Brecht
standard), then it is necessarily unreasonable to conclude that
6
the error was harmless beyond a reasonable doubt (Esparza
standard).”
Connolly v. Roden, 752 F.3d 505, 511 (1st Cir.
2014).
Applying these principles to the instant case compels the
conclusion that Faulk’s petition must be DENIED.
III. ANALYSIS
Faulk’s petition raises the following four grounds: (i) a
substantial risk of miscarriage of justice was created by the
prosecutor’s closing argument; (ii) the trial judge committed
palpable error by limiting evidence of the decedent’s state of
mind; (iii) the motion judge erroneously denied Faulk’s motion
to suppress; and (iv) the error that occurred at trial were not
harmless.
Pet’r’s Pet. 2.
Faulk also attempts to add two more
grounds in his memorandum of law in support of his habeas
petition: (v) the trial judge failed to give a proper Bowden
instruction, and (vi) actual innocence.
Pet’r’s Mem. 31-35.
Medeiros opposes Faulk’s petition, arguing that (i) Faulk’s
petition is barred based on an adequate and independent state
law ground, (ii) the Massachusetts state courts reasonably
rejected Faulk’s claims of constitutional error, (iii) Faulk
improperly expanded the scope of his habeas petition through his
memorandum supporting his petition, and (iv) Faulk’s claim that
the errors that occurred at trial were not harmless is not
exhausted.
Resp’t’s Opp’n 9-26.
7
A.
Ground I
Faulk argues that the prosecutor’s closing argument
“personally attacked the defendant, defense counsel, and the
theory of the defendant’s defense, while unnecessarily invoking
sympathy and passion in the jury.”
Pet’r’s Mem. 7.
He claims
that these arguments created a substantial risk of a miscarriage
of justice and violated his right to due process under the
Fourteenth Amendment.
Id.
He also argues that the defense
counsel’s failure to object to the closing argument violated his
Sixth Amendment rights.
Id.
Medeiros argues that this claim is
barred because the state court rejected it based on an adequate
and independent state law ground.
Resp’t’s Opp’n 9-10.
The Supreme Court has applied the independent and adequate
state ground doctrine “in deciding whether federal district
courts should address the claims of state prisoners in habeas
corpus actions.”
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
“The doctrine applies to bar federal habeas when a state court
declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement.”
Id. at 729-30.
Such judgments “rest[] on independent and
adequate state procedural grounds.”
Id. at 730.
To overcome
the bar to federal review in such cases, a petitioner must
“demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
8
that failure to consider the claims will result in a fundamental
miscarriage of justice.”
Id. at 750.
Here, the Appeals Court noted that Faulk did not object to
the prosecutor’s closing argument, and in accordance with
established Massachusetts law, it limited itself to determining
whether there was a substantial risk of miscarriage of justice.
Faulk, 2016 WL 767584 at *2; see Commonwealth v. Harrington, 379
Mass. 446, 449 (1980) (“The trial judge’s discretionary power to
give relief from [a waived objection] . . . should be exercised
only in those extraordinary cases where, upon sober reflection,
it appears that a miscarriage of justice might otherwise
result.”).
In concluding that there was no substantial risk of
miscarriage of justice, the Appeals Court explained that the
judge had instructed the jury that closing arguments were not
evidence and that the jury must not be swayed by prejudice or
sympathy, and it cited the strength of the evidence against
Faulk as well as the jury’s rejection of the first-degree murder
charge.
Faulk, 2016 WL 767584 at *2; see Commonwealth v.
McLaughlin, 431 Mass. 506, 511-12 (2000); Commonwealth v.
Boyajian, 68 Mass. App. Ct. 866, 870 (2007).
Because the Appeals Court based its decision on Faulk’s
failure to object at trial, Faulk’s claim is barred unless he
can demonstrate cause and actual prejudice, or that failure to
consider the claim will result in a fundamental miscarriage of
9
justice.
1995).
See Burks v. Dubois, 55 F.3d 712, 716 & n.2 (1st Cir.
He demonstrates neither.
“To excuse a procedural default, a petitioner’s cause must
relate to an objective factor, external to the defense, that
thwarted (or at least substantially obstructed) the efforts of
the defendant or his counsel to obey the state’s procedural
rule.”
Burks, 55 F.3d at 716-17.
existence of any such factor.
Faulk does not allege the
To the extent he is relying on
attorney error, the First Circuit has noted that mere attorney
error is insufficient to constitute cause, if the error does not
amount to ineffective assistance “in a constitutionally
significant sense.” Id. at 717.
Faulk has not claimed
ineffective assistance of counsel and has not otherwise shown
cause rising to that level.
Because Faulk has not shown cause, the Court need not
consider whether he has shown actual prejudice; rather, it moves
on to the miscarriage of justice inquiry.
18.
See e.g., id. at 717-
The Supreme Court has explained that “for the most part,
‘victims of a fundamental miscarriage of justice will meet the
cause-and-prejudice standard.’”
Murray v. Carrier, 477 U.S.
478, 495–96 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135
(1982)).
It is only the “extraordinary case, where a
constitutional violation has probably resulted in the conviction
of one who is actually innocent,” that merits the grant of
10
habeas relief absent a showing of cause.
not met this high bar to relief.
Id. at 496.
Faulk has
Though he argues that the
prosecutor’s comments unfairly took advantage of the fact that
evidence of the victim’s mental health had been excluded,
Pet’r’s Mem. 10, given the strength of the evidence against him,
this Court is unpersuaded that a reasonable juror would not have
convicted him but for the prosecutor’s comments.
See Burks, 55
F.3d at 718 (“[P]etitioner's recreation of what transpired in
the state trial court shows, at most, that there was a
legitimate jury question as to his guilt, and that the
prosecutor placed her thumb on the scales of justice at one
point.
This is not enough to qualify for extraordinary relief.
. . .”).
Because Faulk failed to show either cause or a fundamental
miscarriage of justice and, accordingly, cannot overcome the
procedural default rule, Faulk’s claim that the prosecutor’s
closing argument violates his constitutional rights is barred.
B.
Ground II
Faulk argues that the trial judge “committed palpable
error” and violated his rights under the Fifth, Sixth, and
Fourteenth Amendments by excluding evidence of the victim’s
state of mind.
Pet’r’s Mem. 14-29.
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a petitioner may obtain habeas relief on a claim
11
adjudicated on the merits in state court only if “the decision
was contrary to clearly established federal law as determined by
the Supreme Court of the United States, or involved an
unreasonable application of such definitive federal law, or was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
Cooper
v. Bergeron, 778 F.3d 294, 299 (1st Cir. 2015) (citing 28 U.S.C.
§ 2254(d)).
A decision is “contrary” to clearly established law
if the state court “‘applies a rule that contradicts the
governing law set forth’ by the Supreme Court 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.’”
Gomes v. Brady, 564
F.3d 532, 537 (1st Cir. 2009) (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)) (alteration in original).
A state
court unreasonably applies federal law when it “correctly
identifies the governing legal principles, 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 established
principles to a new context where they should apply.”
Id.
(quoting Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007)).
Federal courts are to “presume that the state court’s findings
12
of fact are correct,” Sleeper, 510 F.3d at 38; a petitioner “may
defeat the presumption of correctness only with clear and
convincing evidence to the contrary.”
Id. (citing 28 U.S.C. §
2254(e)(1)).
At his trial, Faulk sought to introduce various medical
records showing that the victim suffered from mental illness, as
well as expert testimony on the records.
at *1.
Faulk, 2016 WL 767584
Faulk also sought to elicit testimony from a police
officer who had been told that the victim had an argument with
his ex-girlfriend shortly before his death.
Id. at *2.
The
trial judge allowed a “limited number” of the medical records
and the expert’s testimony, but excluded the police officer’s
testimony on the basis of hearsay.
Id. at *1-2.
Faulk now
argues that he should have been permitted to introduce more of
the medical records, his expert should have been granted more
time to review the records before testifying, and the hearsay
testimony was wrongfully excluded.
Pet’r’s Mem. 14-29.
He
raised these claims to the Appeals Court in his appeal from his
convictions and motion for a new trial, and the Appeals Court
rejected both claims.
Id.
In doing so, it adjudicated the
claims on their merits and thus its holding is due AEDPA
deference.
See e.g., Harrington v. Richter, 562 U.S. 86, 98-99
(2011); Buckman v. Roden, No. 13-CV-11413-IT, 2015 WL 1206348,
at *3 (D. Mass. Mar. 17, 2015) (Talwani, J.).
13
While “the Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense,’” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984)), that right “is subject to
reasonable restrictions,” United States v. Scheffer, 523 U.S.
303, 308 (1998).
Reasonable restrictions include “the state’s
‘legitimate interest in ensuring that reliable evidence is
presented.’”
DiBenedetto v. Hall, 272 F.3d 1, 8 (1st Cir. 2001)
(quoting Scheffer, 523 U.S. at 309).
“[E]videntiary exclusions
will not violate the constitution ‘so long as they are not
“arbitrary” or “disproportionate to the purposes they are
designed to serve.”’”
Id. (quoting Scheffer, 523 U.S. at 308
(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987))).
The
Supreme Court has explained that evidentiary exclusions are
arbitrary or disproportionate “only where it has infringed upon
a weighty interest of the accused.”
Scheffer, 523 U.S. at 308.
Trial judges have “broad discretion” in making evidentiary
rulings.
Leftwich v. Maloney, No. 01-10284-GAO, 2006 WL 2883346
at *4 (D. Mass. Oct. 5, 2006) (O’Toole, J.).
State court trial
judges therefore have a “‘wide latitude’ to exclude evidence
that is ‘repetitive . . . , only marginally relevant’ or poses
an undue risk of ‘harassment, prejudice, [or] confusion of the
issues.’”
Crane, 476 U.S. at 689-90 (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)) (alteration in original); see
14
Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (“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 trial judges 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.”).
Faulk has failed to show that the Appeals Court’s decision
was contrary to or an unreasonable application of federal law,
or was based on an unreasonable determination of facts.
In
rejecting Faulk’s claim that he ought have been able to
introduce more medical records, the Appeals Court recognized the
speculative nature of the evidence given “the improbability of
suicide given the circumstances of the victim’s death” and
explained that the trial judge’s decision to “[l]imit[] that
evidence to records close in time to the date of death was well
within [his] discretion.”
Faulk, 2016 WL 767584 at *2.
It
further explained that Faulk was not prejudiced by the trial
judge’s decision not to give the expert more time to prepare her
opinion:
Even after Dr. Shapiro had the opportunity to
review the victim’s complete records thoroughly in
preparing an affidavit supporting the defendant's new
trial motion, she could go no farther than to state
that “it is not unreasonable to hypothesize that the
15
Id.
decedent may have had a wish to harm or kill himself
around the time of the alleged incident.”
As the Appeals Court reasonably noted, this assessment
“amounts to no more than conjecture.”
Id.
The Appeals Court also reasonably rejected Faulk’s argument
that the trial judge erred by excluding the police officer’s
hearsay testimony.
The Appeals Court reasoned that none of
Faulk’s three potential justifications for admission -relevance to state of mind, the excited utterance exception, and
the residual exception recognized in the Federal Rules of
Evidence -- warranted admission of the testimony, explaining
that relevance to state of mind “does not cure the hearsay
problem,” the foundational requirements for the excited
utterance exception had not been established, and the
Massachusetts Rules of Evidence does not recognize the residual
exception.
Id.
Consequently, it concluded, the trial judge
“did not abuse his discretion in excluding the testimony.”
Id.
Though Faulk attempts to relitigate these evidentiary rulings,
his argument is hindered by the broad discretion that trial
courts have to exclude unreliable, misleading, or unduly
prejudicial evidence.
He fails to convince this Court that the
exclusion of this evidence meets the high standard of
“arbitrar[iness]” or “disproportiona[lity] to the purposes [the
evidentiary rules] are designed to serve.”
Sargent v.
Bissonnette, No. CIV.A. 03-11124-RGS, 2011 WL 487779, at *10 (D.
16
Mass. Jan. 10, 2011) (Bowler, M.J.), report and recommendation
adopted, No. CIV.A. 03-11124-RGS, 2011 WL 486145 (D. Mass. Feb.
7, 2011) (Stearns, J.) (“As recognized by the First Circuit . .
. Supreme Court cases undoing state court convictions as
contravening the defendant’s right to present reliable,
exculpatory evidence ‘involve egregious situations “and the more
recent decisions of the Court . . . create serious doubts that
the Court is interested in carrying the doctrine beyond
egregious cases.”’” (quoting DiBenedetto, 272 F.3d at 8)).
C.
Ground III
Faulk next argues that the motion judge erroneously denied
his motion to suppress the statements that he made after he
allegedly invoked his right to counsel, violating the rights
afforded him by both the Fifth Amendment of the United States
Constitution and Article Twelve of the Massachusetts Declaration
of Rights.
Pet’r’s Mem. 29.
He claims that after being given
his Miranda warnings when being interrogated by the police, he
responded, “What does this mean?
Like am I getting arrested?
Like, can my lawyer speak or –- ” and was interrupted by a
police officer, who told him he was not under arrest.
Id.
Faulk argues that this constitutes an “unequivocal invocation of
the right to counsel,” or alternatively, he suggests that the
police officer should have “at the very least . . . clarified
any ambiguity.”
Id.
Medeiros argues that Faulk’s asking the
17
police whether his lawyer could speak “is not an unambiguous
indication that he in fact wanted a lawyer or wanted to remain
silent in the absence of a lawyer.”
Resp’t’s Mem. 22.
In Davis v. United States, 512 U.S. 452 (1994), the Supreme
Court held that a suspect must invoke his right to counsel
established by Miranda v. Arizona, 384 U.S. 436 (1966),
“unambiguously.”
Id. at 459.
“If an accused makes a statement
concerning the right to counsel ‘that is ambiguous or equivocal’
or makes no statement, the police are not required to end the
interrogation or ask questions to clarify whether the accused
wants to invoke his or her Miranda rights.”
Berghuis v.
Thompkins, 560 U.S. 370, 381 (2010) (quoting Davis, 512 U.S. at
459.).
If he unambiguously requests counsel, “the interrogation
must cease until an attorney is present.”
Edwards v. Arizona,
451 U.S. 477, 481 (1981) (quoting Miranda, 384 U.S. at 474).
“Invocation of the Miranda right to counsel ‘requires, at a
minimum, some statement that can reasonably be construed to be
an expression of a desire for the assistance of an attorney.’”
Davis, 512 U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S.
171, 178 (1991)).
“[I]f a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only
that the suspect might be invoking the right to counsel,”
however, the cessation of questioning is not required.
18
Id.
The Appeals Court determined that “[t]he motion judge was
entitled to conclude on the evidence before him (including the
videotape of the interview) that the defendant did not make an
unequivocal request for an attorney.”
⃰3.
Faulk, 2016 WL 767584, at
Whatever this Court might conclude were it to have
considered the matter ab initio, Faulk has not pointed to any
precedent that establishes his question rises to the level
required in Edwards, and thus he has failed to show that this
holding is contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable
determination of the facts.
See Obershaw v. Lanman, 453 F.3d
56, 64-65 (1st Cir. 2006) (state court’s conclusion that
petitioner’s question, “Can I talk to a lawyer first?” was
insufficient to invoke his Miranda right to counsel was not
contrary to or unreasonable application of federal law).
D.
Ground IV
Faulk’s fourth claim is that the errors that occurred at
trial –- specifically, the exclusions of the state of mind
evidence -- were not harmless.
Pet’r’s Mem. 30. 2
He argues that
far from being overwhelming, the evidence against him “rested
exclusively on conjecture and surmise,” and consequently the
2
Pet’r’s Mem. Erroneously repeats page 30.
instance, Faulk cites to the second of the two.
19
In this
errors committed at trial “made a real difference in the
outcome.”
Id.
Harmlessness, however, is relevant only where a court has
concluded that a constitutional error has in fact occurred.
See
e.g., United States v. Pridgen, 518 F.3d 87, 91 (1st Cir. 2008)
(“We therefore conclude that the district court erred . . . . We
now must determine if the error was harmless.”).
This Court has
ruled that the Appeals Court was reasonable to uphold the
exclusion of the evidence concerning the victim’s mental health
and the victim’s argument with his ex-girlfriend, see supra, and
thus no constitutional error occurred.
This claim, which
presumes the existence of a constitutional error, accordingly
must fail. 3
3
Medeiros argues that this claim has not been exhausted
because Faulk did not present it in his ALOFAR to the
Massachusetts Supreme Judicial Court. Resp’t’s Mem. 25.
Indeed, a habeas petitioner “must have ‘fairly presented’ to the
state courts the ‘substance’ of his federal habeas corpus claim”
to satisfy the exhaustion requirement. Anderson v. Harless, 459
U.S. 4, 6 (1982) (quoting Picard v. Connor, 404 U.S. 270, 275,
277-78 (1971)). While it appears that Faulk did not raise
harmlessness as a standalone claim in his ALOFAR, see Appl.
Further Appellate Review, Resp’t’s Supp. Ans., Ex. G, ECF No.
18, his harmlessness claim stems from the same alleged
violations of the Fifth, Sixth, and Fourteenth Amendments that
he asserts in his second claim, which was presented in the
ALOFAR. Given that the harmlessness inquiry is part and parcel
of the analysis of whether a petitioner is to receive relief for
such a constitutional violation, this Court concludes that the
harmlessness issue was “fairly presented.”
20
E.
Grounds V and VI
In his memorandum to the Court, Faulk adds two grounds to
his argument:
he argues that the trial judge’s failure to give
a proper Bowden instruction violated his right to due process of
law, and he asserts actual innocence.
Pet’r’s Mem. 31-35.
Medeiros argues that this Court ought disregard these claims
because they were not presented in his original petition for
habeas relief.
Resp’t’s Mem. 22.
This Court agrees.
These two
claims are identical to those Faulk tried to add to his petition
through his motion to amend, see Pet’r’s Mot. Leave Am. 4-7,
which this Court denied.
As it then explained, because these
claims had not been exhausted,4 allowing the addition of the
claims would render Faulk’s petition a mixed petition subject to
dismissal.
522 (1982).
Order, ECF No. 29; see Rose v. Lundy, 455 U.S. 509,
Because “[i]t is the petition for a writ of habeas
corpus, not subsequently filed memorandum, which defines the
claims for habeas relief,” Smiley v. Maloney, No. CIV.A. 0111648-GAO, 2003 WL 23327540, at *16 n.39 (D. Mass. Oct. 31,
2003) (O’Toole, J.), and any claims not in the petition are
4
Faulk did not present either of these two claims in his
ALOFAR to the Massachusetts Supreme Judicial Court. See Appl.
Further Appellate Review, Resp’t’s Supp. Ans., Ex. G.
Consequently, they are unexhausted and he is barred from raising
them in a federal habeas proceeding. See Baldwin v. Reese, 541
U.S. 27, 32 (2004); Josselyn v. Dennehy, 475 F.3d 1, 3-4 (1st
Cir. 2007); Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820-23
(1st Cir. 1988).
21
waived, see Logan v. Gelb, 790 F.3d 65, 70 (1st Cir. 2015), this
Court will not consider these two additional claims here.
See
also Fencher v. Roden, No. CIV.A. 13-11937-RGS, 2015 WL 4111329,
at *8 (D. Mass. July 8, 2015) (Stearns, J.) (holding that
petitioner’s new grounds for relief presented for the first time
in his memorandum were barred because they were not included in
his habeas petition).
IV.
CONCLUSION
For the foregoing reasons, Faulk’s petition for writ of
habeas corpus, ECF No. 1, is DENIED.
SO ORDERED.
_/s/ William G. Young_
WILLIAM G. YOUNG
DISTRICT JUDGE
22
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