Hallums v. Gogeon

Filing 26

Judge Nathaniel M. Gorton: MEMORANDUM and ORDER entered: For the foregoing reasons, respondent's objection to the R&R (Docket No. 25 ) is SUSTAINED but the R&R (Docket No. 24 ) is otherwise ACCEPTED and ADOPTED. Petitioners habeas petition (Docket No. 1 ) is hereby DISMISSED. So ordered.(Vieira, Leonardo)

Case 1:16-cv-11921-NMG Document 26 Filed 03/26/21 Page 1 of 7

United States District Court
District of Massachusetts
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Alexander Hallums,
Petitioner,
v.
Matthew Divris,
Respondent.

Civil Action No.
16-11921-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises from the pro se petition of Alexander
Hallums (“Hallums” or “petitioner”) for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

He is currently in state custody

at North Central Correctional Institution (“NCCI”) in Gardner,
Massachusetts, having been convicted of and sentenced for
aggravated rape and larceny.
I.

Background
The facts and procedural history of this case are provided

in detail in the Report and Recommendation (“R&R”) submitted by
United States Magistrate Judge Marianne B. Bowler with which the
Court assumes familiarity.

In brief, in February, 2014, a

state-court jury found petitioner guilty of aggravated rape and

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larceny.

One month later, he was sentenced to “not less than

nine years and not more than ten years in Massachusetts prison.”
Soon thereafter, petitioner appealed his conviction on the
ground that the prosecutor’s closing argument was unduly
prejudicial, although petitioner had not objected to it at the
time.

In March, 2016, the Massachusetts Appeals Court (“the

MAC”) affirmed petitioner’s conviction because “the defendant
did not object to the closing argument” at trial and none of the
allegations of prosecutorial misconduct “create[d] a substantial
risk of a miscarriage of justice”. See Commonwealth v. Hallums,
46 N.E.3d 599 (Mass. App. Ct. 2016).
In September, 2016, Hallums filed the pending petition for
a writ of habeas corpus, challenging his conviction on the same
grounds as those raised in his appeal to the MAC.

Respondent

Matthew Divris (“Divris” or “respondent”) opposes the petition
because the MAC previously resolved the same claims on an
independent and adequate state law ground, namely, that
petitioner failed to comply with the Massachusetts
contemporaneous objection rule. 1
The petition was referred to Magistrate Judge Bowler and,
on February 22, 2021, she entered an R&R recommending that this
Although the petition for writ of habeas corpus names Collette
Gogeon as the respondent and the individual having custody of
petitioner, because the superintendent of NCCI is Matthew
Divris, he has been substituted as respondent in this action.
1

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Court dismiss the petition.

She concluded that federal habeas

review was barred based on the decision of the MAC.
Specifically, the magistrate judge concluded, as to two of the
alleged categories of prosecutorial error, that the MAC
conducted a merits-based review under a standard that is
functionally equivalent to the federal standard and that its
analysis was neither contrary to nor an unreasonable application
of that clearly established Supreme Court doctrine.

With

respect to the third and final category of alleged misconduct,
the magistrate judge determined that the MAC had rejected
petitioner’s claim for his failure to comply with the
Massachusetts contemporaneous objection rule, an independent and
adequate state-law ground.
The respondent has filed a timely objection to the R&R on
the limited ground that the magistrate judge incorrectly
concluded that the MAC had reached the merits on two of the
allegations of prosecutorial misconduct but otherwise agrees
with the recommendation.

Respondent submits that the MAC,

instead, rested its decision entirely on the contemporaneous
objection rule.

Petitioner has neither replied to respondent’s

objection nor filed an objection of his own.

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II.

Discussion
A. Legal Standard
When a district judge refers a dispositive motion to a

magistrate judge for recommended disposition, it must determine
de novo any part of the recommendation as to which an objection
has been properly registered. Fed. R. Civ. P. 72(b)(3).
A habeas petition shall not be granted as to any claim
adjudicated on the merits in state court unless it 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.
28 U.S.C. § 2254(d)(1).

Nor shall the petition be granted as to

any claim rejected by a state court on an independent and
adequate state law ground. See Walker v. Martin, 562 U.S. 307,
315 (2011).

The First Circuit Court of Appeals has held

repeatedly that
the Massachusetts requirement for contemporaneous
objections is an independent and adequate state procedural
ground, firmly established in the state’s jurisprudence and
regularly followed in its courts.
Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010).
Massachusetts appellate courts use a multi-step process to
determine whether the contemporaneous objection rule precludes
the appeal of a criminal defendant’s conviction. See Rivera v.
Bergeron, 755 F. Supp. 2d 326, 328 (D. Mass. 2010).
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First, the

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appellate court analyzes whether the defendant, in fact, waived
his appeal by failing to object to the alleged error at trial.
Id.

Second, if there was no contemporaneous objection, the

appellate court conducts a limited review of the defaulted claim
to determine only whether the alleged error caused “a
substantial likelihood of a miscarriage of justice”. 2 Id.

Such

limited review of the merits “does not work as a waiver of the
contemporaneous objection requirement” as the reason for
affirming a conviction. Lynch v. Ficco, 438 F.3d 35, 45 (1st
Cir. 2006) (citation omitted); see also Tart v. Com. of Mass.,
949 F.2d 490 (1st Cir. 1991) (“We will not infer waiver of a
contemporaneous objection rule unless the state appellate court
has made it reasonably clear that its reasons for affirming a
conviction rest upon its view of federal law” (internal
quotation marks and citation omitted)).
Having carefully considered the relevant MAC decision, the
R&R and respondent’s objection thereto, this Court agrees with
respondent.

The MAC rejected all of petitioner’s claims on the

independent and adequate state ground that they were
procedurally defaulted by Hallums’ failure to object
To determine whether an unpreserved claim gives rise to a
substantial risk of a miscarriage of justice, the reviewing
court will ask 1) Was there error? 2) Was it prejudicial? 3) Did
it materially influence the verdict? and 4) Does it appear that
counsel’s failure to object was a tactical decision?
Commonwealth v. Randolph, 780 N.E.2d 58, 67 (Mass. 2002).
2

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contemporaneously to the prosecutor’s closing argument. See
Rivera, 755 F. Supp. 2d at 329.

Indeed, the MAC expressly

stated that
[a]t trial the defendant did not object to closing
argument; therefore we review to determine whether, if
there was error, it created a substantial risk of a
miscarriage of justice.
Hallums, 46 N.E.3d 599.

That inquiry is precisely analogous to

the process typically used by Massachusetts appellate courts
considering whether the contemporaneous objection rule applies.
See Rivera, 755 F. Supp. At 329 (“This method of analyzing
criminal appeals based on claims defaulted at trial is not
uncommon in Massachusetts appellate courts.”).
Because the subsequent review by the MAC of the merits of
petitioner’s defaulted claims was limited to whether the
prosecutor’s closing argument created a substantial likelihood
of a miscarriage of justice, it did not constitute a waiver of
the contemporaneous objection requirement.

Accordingly, this

Court will necessarily reject the R&R only to the extent it
concludes that the MAC reached the merits of petitioner’s
claims.

Otherwise, this Court agrees with the R&R and will

accept and adopt its ultimate recommendation to dismiss the
pending petition for habeas corpus.

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ORDER
For the foregoing reasons, respondent’s objection to the
R&R (Docket No. 25) is SUSTAINED but the R&R (Docket No. 24) is
otherwise ACCEPTED and ADOPTED.

Petitioner’s habeas petition

(Docket No. 1) is hereby DISMISSED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 25, 2021

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