Vega v. Commonwealth of Massachusetts

Filing 7

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED; Plaintiff's Motion to Appoint Counsel (Docket No. 3) is DENIED; Plaintiff's Motion for Habea s Corpus Ad Testificandum for Oral Arguments and Evidentiary Hearing (Docket No. 4) is DENIED; This action is DISMISSED sua sponte; and The clerk shall send plaintiff the standard § 2254 petition form and the standard Application to Proceed Without Prepayment of Fees and Affidavit in the event plaintiff seeks to file a § 2254 habeas petition.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RICHARD CARL VEGA,
a/k/a Ricardo Mazzarino,
Plaintiff,

)
)
)
)
v.
)
)
)
COMMONWEALTH OF MASSACHUSETTS,)
Defendant.
)

CIVIL ACTION NO. 16-12237-PBS

MEMORANDUM AND ORDER
November 22, 2016
SARIS, C.D.J.
I.

INTRODUCTION

On November 3, 2016, plaintiff Richard Carl Vega, a/k/a
Ricardo Mazzarino (“Vega”), a civil committee in custody at the
Massachusetts Treatment Center (“MTC”) in Bridgewater,
Massachusetts, filed a self-prepared complaint against the
Commonwealth of Massachusetts.

He challenges his criminal

convictions for rape with respect to criminal cases tried in the
Suffolk County Superior Court.

See Commonwealth v. Vega,

SUCR1987-066623, SUCR1989-076886-A and SUCR1989-076886-B. In
addition, Vega seeks to appeal the September 28, 2016 decision by
the Massachusetts Supreme Judicial Court (“SJC”) denying his
petition for Further Appellate Review (“FAR”)and request for a
new trial, alleging that the SJC violated his constitutional
rights.
Briefly, the background is as follows.1

1

In November, 1990,

The background is culled out from Commonwealth v. Vega, 88
Mass. App. Ct. 1112 (2015); Commonwealth v. Vega, 74 Mass. App.
Ct. 1108 (2009); and Commonwealth v. Vega, 36 Mass. App. Ct., 634
N.E.2d 149 (1994).

Vega was convicted after a jury trial, of three counts of rape
arising from three distinct acts of vaginal and anal rape of an
elderly woman.

In 1994, his convictions were affirmed on appeal.

Thereafter, Vega filed numerous pro se motions, including two
motions for a new trial.
was denied.
reasons.

The first motion was filed in 2000 and

His subsequent appeal was dismissed for procedural

Five years later, in 2005, Vega filed a second motion

seeking release.

That motion was denied and the denial was

affirmed on appeal because Vega’s claims were waived by his
failure to raise them on direct appeal or in his first motion for
a new trial, and the court concluded that Vega had not shown a
substantial risk of a miscarriage of justice.

Vega’s non-waived

claims were disposed of in the direct appeal.

On May 13, 2013,

Vega filed a third motion for a new trial, which was denied by
the trial judge.

On appeal, the denial was affirmed.

On March 22, 2016, Vega filed a motion with the SJC to file
a FAR application late, along with a motion for appointment of
counsel and a Notice of Appeal.

Commonwealth v. Vega, FAR-24218.

Two months later, on May 23, 2016, he filed a second motion to
file a FAR application late.

A month after that, on June 28,

2016, he filed a third motion to file FAR application late and a
motion for limited briefs.

Id.

Two months after that, on August

26, 2016, Vega filed his FAR application.

On September 28, 2016,

the SJC denied Vega’s FAR application.
Weeks after the SCJ denial of his FAR application, on
October 11, 2016, Vega filed a letter to the SJC regarding his
2

notice of appeal along with a request to the SJC to assemble the
record for the United States District Court.
(Docket No. 1-1 at 3).

SJC docket sheet

On October 25, 2016, the SJC Clerk sent a

letter to Vega advising that the SJC office had received his
notice of appeal from the denial of his FAR application, and
further advising that the SJC does not assemble the record for
federal courts on FAR denial applications.

Letter (Docket No. 1-

1 at 1).
In this action (filed a week after the Clerk’s letter), Vega
asserts the same or similar arguments raised in his prior motions
for a new trial.

These arguments include, inter alia, that his

due process rights were violated because: (1) exculpatory
evidence of polygraph tests in 1987 and 1988 were not admitted
into evidence at trial and the jury was not notified of these
tests; (2) exculpatory evidence of the polygraph tests were not
provided to his second defense counsel; (3) he was subject to
double jeopardy because the Commonwealth did not indict him
within 30 days after his arrest on August 13, 1987, but waited
two years before secretly bringing two new indictments against
him in March, 1989 based on the same single event and same victim
of rape and did not disclose the two indictments until the first
day of Vega’s trial; (4) he was sentenced unlawfully to
consecutive terms of incarceration to 19.5 to 20 years on each
indictment, rather than concurrent terms, with 20 years probation
from on or after, despite the fact that the indictments arose out

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of the same event;2 (5) the government sought to “blackmail” him
into a plea bargain and later filed separate indictments for the
same offense because Vega would not accept a plea bargain; (6)
DNA evidence was used to convict him notwithstanding that the
government’s DNA experts admitted to presenting evidence of false
positives, erred in the test results, and admitted that the favor
of the doubt about the test results was given to the government
rather than to Vega because the government had commissioned and
paid for the tests, and because future contracts with the state
were expected; (7) the trial court erred in not conducting a voir
dire of the jury to ensure they were attentive during the DNA
evidence, since one of the jurors was sleeping through the
testimony; (8) he had ineffective assistance of several of his
attorneys in connection with the withholding of the favorable
polygraph results, the failure to object or seek a mistrial when
DNA evidence of Vega’s pants was shown not to be a match to the
victim, and the failure to alert the court regarding the
government’s misconduct with respect to plea negotiations.
As relief, Vega seeks judgment against the SJC, reversal of
his criminal convictions, and a new trial.
2

Vega’s criminal status is not entirely clear. According to
the records of the MTC, Vega is listed under the name Ricardo
Mazzarino. Those records indicate that Vega completed the
incarcerative portion of his criminal sentence but remains
subject to ten (10) years of probation in connection with
SUCR1987-06662 (notably a different case number than those cited
by Vega in his complaint). The MTC records further reflect that
on March 20, 2008, Vega was civilly committed to the MTC for one
day to life. See SUCV 2008-00906. Vega alleges in his
complaint, however, that he received an incarcerative sentence
followed by twenty (20) years probation.
4

Along with the complaint, Vega filed a Motion for Leave to
Proceed in forma pauperis (Docket No. 2), a Motion to Appoint
Counsel (Docket No. 3), and a Motion for Habeas Corpus ad
Testificandum for Oral Arguments and Evidentiary Hearing (Docket
No. 4).
II.
A.

DISCUSSION

The Motion for Leave to Proceed In Forma Pauperis
As an initial matter, while Vega’s custodial status is not

entirely clear, based on the MTC records noted herein, the Court
considers, for the purposes of determining eligibility to proceed
in forma pauperis, that Vega’s current custody is that of a
“civil committee” and not a “prisoner” within the meaning of 28
U.S.C. § 1915(h)(defining a prisoner as “any person incarcerated
or detained in any facility who is accused of, convicted of,
sentenced for, adjudicated delinquent for, violations of criminal
law or the terms and conditions of parole, probation, pretrial
release, or diversionary program.”).

In light of this, the

Prison Litigation Reform Act’s (“PLRA”) requirement that
prisoners must pay the filing fee of the Court for civil actions
($350.00) (pursuant to the formula set forth in 28 U.S.C.
§ 1915(b)), does not apply.

Thus, Vega is eligible for a

complete waiver of the filing and administrative fees ($400.00).
After a review of Vega’s financial affidavit and MTC account
statement, the Court finds that he lacks sufficient funds to pay
the filing and administrative fees.
Accordingly, Vega’s Motion for Leave to Proceed in forma
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pauperis (Docket No. 2) is ALLOWED.
B.

Screening of the Complaint
Because Vega has been permitted to proceed in forma

pauperis, his complaint is subject to screening under 28 U.S.C.
§ 1915(e)(2).

This statute authorizes federal courts to dismiss

actions in which a plaintiff seeks to proceed without prepayment
of fees if the action is malicious, frivolous, fails to state a
claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief.
U.S.C. § 1915(e)(2).

See 28

A lawsuit may be frivolous where there is

“no possible ground upon which a reasoned argument can be made to
sustain [] jurisdiction.”

Cohen v. Corrections Corp. of America,

439 Fed. Appx. 489, 492 (6th Cir. 2011)(alteration in original)
(quoting De La Garza v. De La Garza, 91 Fed. Appx. 508, 508 (7th
Cir. 2004)).
In addition to the statutory screening of a complaint, a
court always has an obligation to inquire sua sponte into its own
jurisdiction.
2004).

See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.

“If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.”
Fed. R. Civ. P. 12(h)(3).
Because Vega is proceeding pro se, this Court liberally
construes the complaint.

Hughes v. Rowe, 449 U.S. 5, 9 (1980);

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Even under a liberal

construction, however, there are a number of legal impediments
that warrant dismissal of this action sua sponte, for the reasons

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set forth below.
C.

Vega May Not Challenge His Criminal Convictions in a Civil
(Non-Habeas) Action
Vega’s requested relief goes to the heart of his state

criminal convictions; however, he may not proceed with his
challenges to his conviction and sentence in a civil, non-habeas
action.

It is well settled that a state prisoner (or state civil

committee) who seeks relief from a conviction or sentence (or
other state judgment of incarceration), may not proceed by a
civil action pursuant to 42 U.S.C. § 1983 to redress alleged due
process violations; rather, he or she must proceed, if eligible
to do so, through a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254.

Allen v. McCurry, 449 U.S. 90, 104-05

(1980)(“Through § 1983, the 42d Congress intended to afford an
opportunity for legal and equitable relief in a federal court for
certain types of injuries.

It is difficult to believe that the

drafters of that Act considered it a substitute for a federal
writ of habeas corpus, the purpose of which is not to redress
civil injury, but to release the applicant from unlawful physical
confinement, Preiser v. Rodriguez, 411 U.S.[475 (1973)], at 484
....”); see Diaz v. Grondolsky, No. CA 13-11341-NMG, 2013 WL
3892894, at *4 (D. Mass. 2013)(“[A]s a general matter, habeas
corpus proceedings are the proper mechanism for challenging the
‘legality or duration’ of confinement.

By contrast, a non-habeas

civil action is the proper method of challenging conditions of
confinement.” citing Preiser, 411 U.S. at 484-99)).

Notably,

Vega is aware of the habeas process insofar as he previously
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filed a § 2254 petition in this Court in connection with one of
the Suffolk Superior Court cases that is the subject of this
complaint.

See Vega v. DuBois, Civil Action No. 95-10566-GAO

(challenging Commonwealth v. Vega, SUCR 066623).3
D.

The Court Lacks Jurisdiction Under The Rooker-Feldman
Doctrine to Review SJC Decisions
Next, as part of his complaint, Vega seeks to appeal the

decision of the SJC denying his FAR and to have this Court
reverse the SJC decision.

Under the Rooker-Feldman doctrine,

this Court lacks jurisdiction over Vega’s appeal.

The

Rooker-Feldman doctrine is a distillation of two Supreme Court
decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983).

The doctrine precludes a federal action if the relief

requested in that action would effectively reverse a state court
decision or void its holding or if the plaintiff’s claims are
“inextricably intertwined” with the state court’s decision.

See

Johnson v. De Grandy, 512 U.S. 997, 1005-1006 (1994); Coggeshall
v. Mass. Bd. of Reg'n of Psychologists, 604 F.3d 658, 663 (1st
3

In that action, Judge Zobel found Vega’s § 2254 habeas
petition to be defective. In his petition, Vega alleged double
jeopardy violations, ineffective assistance of counsel at trial,
and insufficient evidence at trial. Judge Zobel found that the
face of the petition failed to demonstrate any claims for habeas
relief because he had procedurally defaulted on his claims of
double jeopardy, gender-biased jury, and ineffective assistance
of counsel by failing to raise them on appeal, and because he
failed to provide the factual basis of his insufficient evidence
claim. She directed him to file an amended petition curing the
defects. The case later was reassigned to Judge O’Toole. He
found that Vega’s amended petition did not cure the defects noted
by Judge Zobel and the action was dismissed on October 18, 1995.
Vega’s motion for reconsideration was denied on January 5, 1996.
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Cir. 2010) citing Exxon Mobil Corp. v. Saudi Basic Industries
Corp., Inc., 544 U.S. 280, 291 (2005)(doctrine applies to cases
by state court losers seeking review and rejection of state court
judgments rendered prior to commencement of federal suit).
In Exxon, the Supreme Court expressed concern that lower
courts occasionally have attempted to extend Rooker-Feldman far
beyond its contours, abrogating federal court jurisdiction
granted by Congress to be concurrent with the jurisdiction of
state courts.

Id. at 283.

Vega’s action, which essentially is a

repackaging of his state court post-conviction motions, appeals
and FAR review, however, is precisely the type of case designed
to fit within the narrow confines of the Rooker-Feldman doctrine.
The doctrine applies only to: (1) a party who lost in a
state-court judgment that (2) was rendered before the federal
action commenced, where (3) the party complains of injuries
caused by the state-court judgment and (4) invites district court
review and rejection of those judgments.

See Silva v.

Massachusetts, 351 Fed. Appx. 450, 454 (1st Cir. 2009)(presenting
the elements in a different order).

It is beyond dispute that

Vega lost in state court and that the state court proceeding was
final before he filed this action.

The First Circuit has held

that “when the highest state court in which review is available
has affirmed the judgment below and nothing is left to be
resolved, then without a doubt the state court proceedings have
‘ended.’”

Id. at 455.

Thus, this Court is without jurisdiction

to review the SJC judgment or any state court judgments.

9

See

Federacion de Maestros de Puerto Rico v. Junta de Relaciones del
Trabajo de Puerto Rico, 410 F.3d 17, 24 (1st Cir. 2005).
Here, Vega does not present independent claims; rather, his
claims are directly and inextricably tied to the state court
judgments themselves.

In light of this, this action must be

dismissed sua sponte.
E.

Filing of a Habeas Petition
The clerk is directed to send to Vega the standard § 2254

petition form for completion in the event Vega elects to file a
habeas petition.
The Court makes no findings as to whether Vega meets the “in
custody” requirements for habeas relief, whether any habeas
petition would be barred by the one-year limitations period
pursuant to 28 U.S.C. § 2244(d)(1)(A)-(D), or whether any habeas
petition would be barred as a second or successive § 2254
petition.

See 28 U.S.C. § 2244(b)-(d).

Vega may address those

issues in conjunction with any habeas petition and those matters
are reserved for the judicial officer assigned.
Should Vega decide to file a habeas petition, he must
complete the standard § 2254 form, naming the proper respondent.
He also must pay the $5.00 filing fee or file an application for
a waiver thereof by filing an in forma pauperis motion along with
his certified prison account statement demonstrating that he
lacks sufficient funds in his account to pay the $5.00 fee.4

4

At this time, Vega’s MTC account statement indicates that he
has in excess of $32.00.
10

Although he has been permitted to proceed in forma pauperis in
this action, the filing fee determinations are different, and
therefore he must re-submit a waiver request.

The clerk also

shall send Vega the standard application form.
F.

The Pending Motions
In light of the dismissal of this action for the reasons set

forth herein, Vega’s Motion to Appoint Counsel (Docket No. 3),
and his Motion for Habeas Corpus Ad Testificandum for Oral
Arguments and Evidentiary Hearing (Docket No. 4) are DENIED as
moot.
III. CONCLUSION
Based on the foregoing, it is hereby ordered that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis
(Docket No. 2) is ALLOWED;

2.

Plaintiff’s Motion to Appoint Counsel (Docket No. 3) is
DENIED;

3.

Plaintiff’s Motion for Habeas Corpus Ad Testificandum for
Oral Arguments and Evidentiary Hearing (Docket No. 4) is
DENIED;

4.

This action is DISMISSED sua sponte; and

5.

The clerk shall send plaintiff the standard § 2254 petition
form and the standard Application to Proceed Without
Prepayment of Fees and Affidavit in the event plaintiff
seeks to file a § 2254 habeas petition.

SO ORDERED.
/s/ Patti B. Saris
CHIEF, UNITED STATES DISTRICT JUDGE

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