Miller v. Marchilli, Jr.
Filing
37
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES the motion to amend the Petition, D. 35, and the Petition, D.1. Miller may receive a certificate of appealability only if he makes "a substantial showing of the den ial of a constitutional right." 28 U.S.C. § 2253(c)(2). A certificate of appealability is appropriate when "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2003)) (internal quotation marks omitted). Based upon the analysis of the record and the applicable law in this Memorandum and Order, the Cour t is not, at this juncture, inclined to issue a certificate of appealability, but will give Miller until February 6, 2019 to file a memorandum, not to exceed five (5) pages, if he seeks to address the issue of whether a certificate of appealability is warranted as to the Petition.(Hourihan, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
DAVID T. MILLER,
)
)
Petitioner,
)
)
v.
)
Civil No.: 1:17-cv-10469-DJC
)
)
RAYMOND MARCHILLI, JR.,
)
)
Respondent.
)
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
January 9, 2019
Introduction
Petitioner David Miller (“Miller”), acting pro se, has filed a petition seeking a writ of
habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. D. 1. Respondent Raymond Marchilli
Jr. (“Respondent”), the Superintendent of the Massachusetts Department of Correction, opposes
the Petition. D. 34 at 3. For the reasons stated below, the Court DENIES Miller’s motion to amend
the Petition, D. 35, and also DENIES the Petition. D. 1.
II.
Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court
may grant a writ of habeas corpus if the state court adjudication “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).
1
A state court decision is “contrary to” clearly established federal law “if the state court
either ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases,’ or
‘confronts a set of facts that are materially indistinguishable from’” a Supreme Court precedent
and arrives at an opposite conclusion. Penry v. Johnson, 532 U.S. 782, 792 (2001) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state court decision is an “unreasonable
application” of clearly established federal law “if it correctly identifies the governing legal rule
but applies that rule unreasonably to the facts of a particular prisoner’s case.” White v. Woodall,
572 U.S. 415, 426 (2014). Accordingly, “a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
The Court may likewise grant habeas relief if the state court adjudication “resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2). Federal courts may not
conclude that a state court factual finding is unreasonable “merely because [it] would have reached
a different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 844 (2010). That
reasonable minds could disagree about a state court’s factual determination is insufficient to
supersede the trial court’s findings on federal habeas review. See Rice v. Collins, 546 U.S. 333,
341-42 (2006). Federal courts thus follow a “highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)) (internal quotation marks omitted).
2
III.
Factual and Procedural Background
A. Relevant State Court Proceedings
The underlying charges against Miller arose out of a shooting at the Sunset Hill housing
development in Fall River on September 25, 2006. Commonwealth v. Miller, 475 Mass. 212, 214
(2016). During the course of the police investigation, officers executed several search warrants
and, as a result, seized evidence in the basement of unit 315 of the housing complex. D. 34 at 19.
Miller did not live in this unit. Id. From this location, officers seized several items, including “a
plastic bag containing two metal ammunition clips loaded with .223 caliber ammunition, and . . .
loose .223 caliber ammunition rounds” in addition to a “rifle carrying case.” Miller, 475 Mass. at
216-17.
Miller was indicted on three charges: murder in the first degree, carrying a firearm without
a license and possessing a large capacity firearm. Id. at 217-18. Miller moved to suppress the
evidence obtained from unit 315 because it was beyond the scope of the search warrant issued for
his unit (unit 316). Id. The court allowed the motion as to the charge for possession of a large
capacity firearm, but the Court denied it as to the charges of murder in the first degree and carrying
a firearm without a license. Id. The Commonwealth later dismissed the possession of a large
capacity firearm charge.
At relevant times during the state court proceedings, Miller was representing himself pro
se with standby counsel. While in pretrial custody, Miller sent a letter, with attached grand jury
minutes, to family members, requesting that they contact and convince his stepfather, “Butch,” not
to testify against him. Id. at 3. Unbeknownst to Miller, the letter was intercepted by a prison staff
member, who copied the contents of the correspondence. Id.; D. 34 at 6. After learning of the
confiscation, on November 26, 2008, Miller moved to suppress the outgoing letter from admission
3
at trial. D. 30-2 at 3. Miller refused his transport to court on the day of the scheduled motion
hearing, thereby failing to appear at the suppression hearing and the court denied this second
motion to suppress. Id. at 3-4.
On February 24, 2009, a jury returned a guilty verdict on the first-degree murder and
firearm possession charges against Miller. Id. at 5; D. 34 at 6. The court sentenced Miller to life
in prison. D. 34 at 6. During a conversation with Miller’s stand-by counsel, Juror 16 from Miller’s
trial expressed concerns about the verdict. D. 30-2 at 5. After a hearing regarding stand-by
counsel’s conversation with Juror 16, the court had the juror express her concerns in writing. Id.
Juror 16 revealed that, during deliberation, another juror brought a magazine into the jury room
that contained pictures of BB guns to resolve a disagreement among the jurors as to whether a BB
gun can resemble an actual gun. Id. In light of Juror 16’s allegations, Miller moved for a new trial
in March 2009, contending that the introduction of extraneous information “materially affected the
result” of the trial. Id. at 2; D. 34 at 6. The court denied the motion on November 20, 2009. D.
30-2 at 8-9. Miller next consolidated his appeal of the denial of his motions to suppress, the motion
for a new trial with that of the direct appeal of his conviction. Miller, 475 Mass. at 214. The
Supreme Judicial Court affirmed these rulings and his conviction on August 17, 2016. Id.
B. The Initial and Still Operative Petition
Miller has filed the Petition asserting that: (1) the denial of his motion to suppress the
evidence seized from unit 315 violated his Fourth and Fourteenth Amendment rights; (2) the denial
of his motion for a new trial in light of the introduction of extraneous evidence during jury
deliberations violated his constitutional right to a fair trial; and (3) the statement that an immunized
witness at trial was providing truthful testimony violated Miller’s Fourteenth Amendment rights.
D. 1 at 5-8. The Respondent has filed an answer to the Petition. D. 13. Miller moved for a stay
4
in abeyance on March 20, 2017 relating to an unexhausted, alleged Brady violation by the
Commonwealth in failing to produce certain exculpatory evidence, D. 6 at 2, and on September
25, 2017, he moved to stay filing of his brief given the pendency of his motion for stay in abeyance,
D. 23 at 1. On October 26, 2017, the Court denied both motions and ordered that the case proceed
on the three claims asserted in the Petition. D. 26; D. 28. Miller filed a memorandum in support
of the Petition, but also raised two additional grounds for relief that were not in the Petition. D.
30 at 23-38. The Respondent responded, opposing the original grounds in the Petition and also
contending that the two additional grounds raised by Miller were waived and not reviewable. D.
34 at 12-14. Subsequently, on March 12, 2018, Miller moved to amend the Petition to include the
two additional grounds for relief that were not in the Petition originally, but which he had
introduced in his memorandum in support of same: 1) that his “rights were violated when the court
waived his suppression hearing because [he] failed to appear,” and 2) the “allowance of grand jury
minutes during the trial proceedings was violative as to [his] confrontation rights.” D. 35 at 2.
The Respondent also opposes the amendment of the Petition on the grounds that such amendment
is time barred.
IV.
Discussion
A. Miller May Not Amend the Petition to Add Two Time-Barred Claims
As a preliminary matter, Miller’s motion to amend is futile since the claims that he seeks
to add to the Petition are time barred. Under the AEDPA, codified as 28 U.S.C. § 2244(d), a
habeas corpus petition filed by a prisoner in state custody is subject to a one-year statute of
limitations period that runs from “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A); see
Delaney v. Matesanz, 264 F.3d 7, 10 (1st Cir. 2001). Following an affirmance of conviction from
the Supreme Judicial Court, a petitioner has ninety days to seek certiorari from the United States
5
Supreme Court. David v. Hall, 318 F.3d 343, 345 (1st Cir. 2003). Here, Miller’s conviction was
affirmed by the Supreme Judicial Court on August 17, 2016. Miller, 475 Mass. at 230, and his
conviction became final ninety days later when the period to seek certiorari expired. Accordingly,
Miller had until November 15, 2017 to file the Petition. See David, 318 F.3d at 345. While it is
true that Miller filed the (initial) Petition on March 20, 2017, the new claims asserted in the
proposed amended petition was filed on March 12, 2018 and, as a result, are untimely. See id.
Section 2244(d)(2) provides that “the time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.” § 2244(d)(2). Miller
does not assert, and the record here does not suggest, that there were any state post-conviction
review or other collateral matters that delayed his assertion of these new claims here. Instead,
Miller asserts only that although he “mistakenly failed to incorporate two additional claims” in the
(initial) Petition, he raised them in state court. D. 35 at 2. Such explanation falls far short of any
basis to toll the applicable one-year time bar here.
Moreover, there is no basis to conclude that these new two claims relate back to the
grounds in the (timely filed) Petition such that they could be said to be timely filed. To relate back
to the Petition, the new claims must arise out of the same conduct, transaction or occurrence.
United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (citing Fed. R. Civ. 15). Moreover, in the
context of a habeas petition, “the Rule 15 ‘relation back’ provision is to be strictly construed, in
light of ‘Congress’s decision to expedite collateral attacks by placing stringent time restrictions on
[them].’” Id. (internal citation omitted); see, e.g., McGonagle v. United States, Civ. No. 02-73-M,
2002 WL 31409820, at *14 (D.N.H. October 23, 2002) (ruling that petitioners’ motions to amend
habeas petitions were untimely where “the claim petitioners seek to add by amendment is entirely
6
novel and unrelated to any claims advanced in their original petitions”). Neither of these two
claims—one concerning the resolution of a separate motion to suppress a letter that Miller sent
while in pretrial detention and the other concerning the admission of grand jury minutes attached
to this letter—arise out of the same conduct, transaction or occurrence as the claims originally
raised in the Petition. These new claims concern evidence seized after Miller was charged, as a
result of a communication he sent from jail and do not arise out of the same circumstances as the
allegedly improperly seized evidence from unit 315, the extraneous material before the jury or any
statement to the jury about the testimony from an immunized witness. Accordingly, it cannot be
reasonably be concluded that these new claims relate back to those originally asserted in the
Petition.
Lastly, there is no basis for equitable tolling of the one-year limitations period under
AEDPA here. To rely on equitable tolling, Miller would have to have shown “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” McQuiggin v. Perkins, 569 U.S. 383, 391 (2013) (quoting Holland v.
Florida, 560 U.S. 631, 645 (2010)). This showing has not been made here, particularly where the
record does not reveal any impediment to Miller having raised these issues in the Petition,
particularly as he raised a Fourth Amendment claim regarding the denial of his suppression motion
regarding the seizure of the letter (to which the grand jury transcript was attached) in his direct
appeal, a judgment that became final back in November 2016, as discussed above. Miller, 475
Mass. at 219-20.
For all of the aforementioned reasons, the Court denies Miller’s motion to amend the
Petition to add two more claims regarding the manner of resolution of the motion to suppress his
confiscated mail and the introduction of the grand jury material at trial, D. 30 at 26, 32, and does
7
not reach these claims to the extent that Miller also raised them in his memorandum in support of
the Petition.
B. Ground One: Miller Had a Full and Fair Opportunity to Litigate His Fourth
Amendment Claim in State Court
Turning to the merits of the three grounds in the original Petition, Miller first asserts that
he is entitled to habeas relief due to the partial denial of his motion to suppress evidence seized
from the basement of a neighbor’s apartment in purported violation of his Fourth Amendment
rights. D. 30 at 39. The Supreme Court has held that “where the State has provided an opportunity
for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). There is, however, “an
exception for instances in which a habeas petitioner had no realistic opportunity to litigate his
Fourth Amendment claim fully and fairly in the state system.” Sanna v. Dipaolo, 265 F.3d 1, 8
(1st Cir. 2001); Palmigiano v. Houle, 618 F.2d 877, 881–82 (1st Cir. 1980). The petitioner carries
the burden of demonstrating that his claim falls within this exception. Sanna, 265 F.3d at 8.
In this case, Miller had a full and fair opportunity to litigate this Fourth Amendment claim
in state court. See S.A. 342-63. There, on April 18, 2008, Miller moved to suppress evidence
seized from basement of unit 315, namely a plastic bag containing two metal ammunition clips
loaded with .223 caliber ammunition, loose .223 caliber ammunition rounds and a rifle carrying
case. S.A. 118. Miller moved to suppress this evidence contending that the seizure was made in
violation of both the Fourth Amendment and Art. 14 of the Massachusetts Declaration of Rights.
Miller, 475 Mass. at 217. The trial court allowed Miller’s motion in part, agreeing that suppression
was warranted as to the charge of possession of a large capacity firearm, S.A. 100. The motion,
however, was denied as to the charges of murder in the first degree and possession of a firearm
8
since the court rejected his argument that he had standing to challenge the introduction of this
evidence as to these two charges where, unlike as to the large capacity firearm charge, possession
of the items seized was not an essential element to those charges, S.A. 100; Miller, 475 Mass. at
217-18. Miller subsequently raised the partial denial of his motion to the Supreme Judicial Court
on direct appeal. S.A. 66-79; Miller, 475 Mass. at 216-18. On appeal, that court, citing United
States v. Salvucci, 448 U.S. 83, 95 (1980), held that the Superior Court “correctly determined that
[Miller’s] standing to challenge the search of his neighbor’s basement under the third indictment
[for the possession of a large capacity firearm] did not give [] [Miller] standing to challenge the
admission of the seized items at the trial of the other indictments.” Miller, 475 Mass. at 218.
Accordingly, Miller had a fair and full opportunity to litigate this Fourth Amendment claim and
the Court also does not conclude that the state court’s decision was contrary to or an unreasonable
application of clearly established federal law. Accordingly, Miller is not entitled to habeas relief
on Ground One.
C. Ground Two: The Denial of Motion for a New Trial Did Not Rise to the Level of
Due Process Violation
As to Ground Two, Miller argues that he was denied a fair trial because he was prejudiced
when one of the jurors brought a magazine containing photographs of BB guns into deliberation
for the purpose of demonstrating that BB guns are similar in appearance to firearms. D. 30 at 15.
Although Miller makes passing reference to federal law, D. 30 at 14-15 (citing Remmer v. United
States, 347 U.S. 227, 229 (1954)), D. 30 at 22-23, Miller does not appear to claim that the Supreme
Judicial Court’s ruling about this matter was contrary to or an unreasonably application of clearly
established law. Instead, he appears to contend that he is entitled to habeas relief on this ground
since the Supreme Judicial Court’s adjudication “resulted in a decision that was based on an
9
unreasonable determination of the facts in light of the evidence presented in the state proceeding.”
28 U.S.C. 22554(d)(2).
Here, the Court does not agree with this contention. To determine whether the extraneous
material presented to a deliberating jury was prejudicial and, thus, warranted a new trial, the
Supreme Judicial Court applied a two-step inquiry requiring: 1) the defendant to prove by a
preponderance of the evidence that extraneous material was presented to the jury; and 2) the
Commonwealth to prove beyond a reasonable doubt that the jury’s exposure to the extraneous
material was not prejudicial to the defendant. Commonwealth v. Bresnahan, 462 Mass. 773-74
(2012) (explaining two-step inquiry established in Commonwealth v. Fidler, 377 Mass. 192
(1979)).
Here, the trial court considered the information from Juror 16. The trial court then
presumed the extraneous material was presented to the jury and turned to the next prong of the
analysis, i.e., whether the juror’s conduct during jury deliberations was prejudicial to Miller. D.
30-2 at 5. When considering the second prong, “the judge may not receive any evidence
concerning the actual effect of the matter on the juror’s decision. . .[r]ather, the judge must focus
on the probable effect of the extraneous facts on a hypothetical average jury.” Fidler, 377 Mass.
at 201. The trial court acknowledged that “exposure of this magazine to the jury was extraneous
matter,” but was “satisfied that there was no probability of prejudice . . . beyond a reasonable doubt
. . .” and denied the motion. D. 30-2 at 8-9. The trial court held that “the case against [Miller]
was strong while the question of whether a BB gun can resemble a real gun was not attached to
any crucial issue in this case.” D. 30-2 at 8. The Supreme Judicial Court affirmed the trial court’s
decision and explained that the trial court “properly focused on the weight of evidence against
10
[Miller], and the likelihood that the extraneous material prejudiced him.” Miller, 475 Mass. at
222.
This Court does not conclude that these decisions were based on an unreasonable
determination of the facts in light of evidence before the state court. It is well settled that “[f]actual
determinations by state courts are presumed correct absent clear and convincing evidence to the
contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding, § 2254(d)(2).” Miller-El v. Cockrell,
537 U.S. 322, 324 (2003). Miller has not overcome this presumption by clear and convincing
evidence. Instead, he argues that his girlfriend’s testimony that she observed Miller with a Ruger
Mini-14 was extremely damaging and that the juror’s demonstration of the similarity to a BB gun
“tipped the scale in favor of guilt” despite another witness’s allegedly contrary testimony that the
first witness merely observed a BB gun. D. 30 at 18, 22. This argument, however, is insufficient
to warrant the relief Miller seeks where such evidence was just part of the inculpatory evidence
before the jury about Miller’s guilt. Miller, 475 Mass. at 222-23. For instance, the Supreme
Judicial Court considered the entirety of his girlfriend’s testimony, which included “numerous
inculpatory statements made and actions taken by [Miller] immediately following the murder” and
also her testimony that “[Miller] wiped blood off his face after they fled to Boston.” Id.
Additionally, it considered that “[m]ultiple witnesses also observed a person matching [Miller’s]
description [] fleeing the scene of the crime.” Id.
In light of the substantial evidence against
Miller, this Court cannot conclude that the finding that Miller was not prejudiced by the jury’s
exposure to the BB gun magazine was an objectively unreasonable determination of the facts.
Accordingly, the Court denies habeas relief as to Ground Two.
11
D. Ground Three in the Petition is Waived
As to Ground Three, Miller asserts that the Commonwealth violated his Fourteenth
Amendment rights by stating that a witness was providing truthful testimony as part of his
immunity agreement. D. 1 at 8. While this ground is raised in the Petition, it is notably absent
from Miller’s memorandum filed in support of the Petition. See D. 30. Respondent contends that
Miller’s argument is effectively waived by his failure to support this argument in his supporting
memorandum. D. 34 at 14. The Court agrees. As articulated in the Petition, this ground relates
to the testimony of a government witness, Steven Smith, who “testified under a grant of immunity
and the commonwealth stated he was providing ‘truthful’ testimony as his obligation under the
inmmunitized [sic] witness agreement” which violated the [Miller’s] rights under the Fourteenth
Amendment. D. 1 at 8. Despite its inclusion in the Petition, Miller does not further explain or
support this claim in the Memorandum. See D. 30. Nor does the record otherwise lend to support
to this claim.
Miller has waived this claim. See Perkins v. Russo, No. 02-10460-MLW, 2007 WL
2507741, at *3 (D. Mass. Aug. 31, 2007); see also Blake v. Medeiros, No. 14-CV-11845-IT, 2017
WL 4076104, at *4 (D. Mass. Sept. 14, 2017) (concluding two claims waived where, among other
things, “[s]ince filing his petition . . . [the petitioner] does not address either claim in his
memorandum”); Smiley v. Maloney, No. 01-11648-GAO, 2003 WL 23327540, at *15 (D. Mass.
Oct. 31, 2003) (finding claim waived where “petitioner has not, in his Memorandum of Law in
support of the petition, advanced any argument, much less reasoned argument, on this point”),
aff'd, 422 F.3d 17 (1st Cir. 2005). The First Circuit has consistently held that “issues adverted to
in a perfunctory fashion, unaccompanied by some effort at developed argumentation, are deemed
waived.” Watson v. Trans Union LLC, 223 F. App’x 5, 6 (1st Cir. 2007) (quoting United States
12
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)) (internal quotation marks omitted). Although pro se
defendants are accorded more leeway, see, e.g. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.
1997), they are ultimately still subject to this standard, see e.g. United States v. Nishnianidze, 342
F.3d 6, 18 (1st Cir. 2003); Strahan v. Coxe, 127 F.3d 155, 172 (1st Cir. 1997). Here, Miller has
advanced a claim in its barest form and, as such, does not entitle Miller to the habeas relief he
seeks.
V.
Conclusion and Certificate of Appealability
For the foregoing reasons, the Court DENIES the motion to amend the Petition, D. 35, and
the Petition, D.1. Miller may receive a certificate of appealability only if he makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of
appealability is appropriate when “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2003)) (internal quotation marks omitted). Based
upon the analysis of the record and the applicable law in this Memorandum and Order, the Court
is not, at this juncture, inclined to issue a certificate of appealability, but will give Miller until
February 6, 2019 to file a memorandum, not to exceed five (5) pages, if he seeks to address the
issue of whether a certificate of appealability is warranted as to the Petition.
So Ordered.
/s/ Denise J. Casper
United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?