Reyes v. Mitchell
Filing
28
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDERThe Appeals Court reasonably applied federal law in concluding that LeRoy did not violate Reyess Sixth Amendment right as to the impeachment methods used during trial or by choosing not to c all Dr. Begany as an expert witness. The Appeals Courts conclusion that it was reasonable for LeRoy to withhold important information from his own expert witness was, however, unreasonable. Nevertheless, LeRoys conduct was not prejudicial. Therefo re, this Court DENIES Claim I.The Appeals Court did unreasonably review the factual record and based its decision on these misconceptions. After a de novo analysis, this Court rules that LeRoys impeachment decisions were not unreasonable or prejudicial, and while LeRoys decision not to inform Dr. Begany about the ghost stories was unreasonable, it was not prejudicial. Therefore, this Court DENIES Claim II. SO ORDERED.(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
Petitioner,
)
)
v.
)
)
LISA A. MITCHELL,
)
Superintendent of the
)
Massachusetts Treatment Center,
)
)
Respondent.
)
___________________________________)
JAVIER REYES,
CIVIL ACTION
NO. 18-40147-WGY
YOUNG, D.J.
April 1, 2020
MEMORANDUM & ORDER
I.
INTRODUCTION
Javier Reyes (“Reyes”), a prisoner in state custody for
sexually assaulting his girlfriend’s seven-year-old daughter on
different occasions, here petitions for a writ of habeas corpus
pursuant to 25 U.S.C. § 2254.
Pet. Relief Conviction Sentence
Person State Custody (“Petition”), ECF. No. 1; id. Ex. 4, Pet.
App. Supp. Pet. Habeas Corpus Vol. I (of IV) (“App. Vol. I”) 1819, 75, ECF. No. 1-4.
Reyes alleges ineffective assistance of counsel in
violation of the Sixth Amendment and violation of due process by
the Massachusetts Appeals Court (“Appeals Court”).
Petition,
Mem. Supp. Pet. Habeas Corpus (“Pet’r’s Mem.”) 1-3, ECF No. 1-3.
A.
Factual Background
In 2010, a Suffolk County grand jury indicted Reyes with
the charges of rape of a child, assault with the intent to rape
a child, and three counts of indecent assault and battery on a
child under fourteen.
App. Vol. I 3-7.
Robert K. LeRoy
(“LeRoy”) was appointed as Reyes’s counsel during his trial.
Id. at 14.
LeRoy became aware that the victim (“M.R.”) had a
history of lying and had reported seeing ghosts.
Petition, Ex.
6, Pet. App. Supp. Pet. Habeas Corpus Vol. III (of IV) (“App.
Vol. III”) 64-65, ECF No. 1-6.
LeRoy’s defense strategy during
trial was to attack the credibility of M.R.1
App. Vol. III 65.
At trial, the Commonwealth’s expert testimony would indicate
that conflicting reports of sexual assault made by children are
consistent with post-attack trauma.
Petition, Ex. 5, Pet. App.
Supp. Pet. Habeas Corpus Vol. II (of IV) (“App. Vol. II”) 17-34,
ECF. No. 1-5.
Preparing to rebut such expected testimony, LeRoy
contacted Dr. Joseph Begany (“Dr. Begany”) who agreed that
delay, denial, and contradictory claims made by kids could be a
consequence of post-attack trauma.
App. Vol. III 66.
For this
reason, LeRoy decided not to use Dr. Begany’s testimony during
1
LeRoy attacked M.R.’s credibility by showing that she
retracted a previous allegation of sexual abuse, her versions of
the abuse were inconsistent, and that she wrote affectionate
letters to Reyes even after disclosing the sexual abuse. App.
Vol. III 110-11.
[2]
trial.
Id.
Dr. Begany reached his conclusion without the
knowledge that M.R. had reported contact with ghosts on several
occasions.
Id. at 66, 157.
Following trial, a jury convicted
Reyes of rape of a child, assault with the intent to rape a
child, and indecent assault and battery on a child under
fourteen, but found Reyes not guilty of two additional counts of
indecent assault and battery.
App. Vol. I 18-19.
After his conviction, Reyes sought relief alleging
ineffective assistance of counsel both before the Massachusetts
Superior Court and then the Appeals Court.
Commonwealth v.
Reyes, 87 N.E.3d 116, 92 Mass. App. Ct. 1101, No. 16-P-1457,
2017 WL 3184424, at *1 (2017); App. Vol. III 212-20 (“Superior
Court Decision”).
Both courts applied the state-law Saferian
test, see Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d
878, 883 (1974), to LeRoy’s conduct and held that Leroy’s
decisions were not “manifestly unreasonable.”
Reyes, 2017 WL
3184424, at *3-4; Superior Court Decision 8.
Reyes now seeks a writ of habeas corpus alleging the same
grounds of ineffective assistance of counsel and further
asserting that the Appeals Court denied the relief he requested
by resting its opinion on inaccurate factual findings.
Mem 36, 45.
[3]
Pet’r’s
B.
Procedural History
On April 2, 2014 Reyes first appealed his conviction,
alleging ineffective assistance of counsel.
App. Vol. I 19.
On
January 2, 2015 the Appeals Court granted him leave to file a
motion for new trial before the Superior Court, which was duly
filed on June 1, 2015.
Id. at 20; App. Vol. III 3-5.
The
Superior Court allowed an evidentiary hearing to determine
whether the alleged ineffective assistance of counsel claims had
merit.
Id. at 79.
hearing.
LeRoy and Dr. Begany testified during that
Id. at 79–211.
On June 28, 2016 the Superior Court
denied the motion for a new trial.
Id. at 220.
Reyes appealed
that decision and on July 27, 2017 the Appeals Court, in a
consolidated appeal, affirmed the conviction and the denial of
the motion for a new trial.
Reyes, 2017 WL 3184424, at *2.
Reyes petitioned for a rehearing from the Appeals Court, which
was denied on August 3, 2017.
App. Vol. III 222.
Reyes sought
Supreme Judicial Court review, which was also denied, without
further comment, on September 28, 2017.
Commonwealth v. Reyes,
478 Mass. 1102, 94 N.E.3d 396 (2017).
On September 4, 2018 Reyes filed this petition of writ of
habeas corpus.
Petition 16.
This Court heard argument on
January 13, 2020, took the matter under advisement, and now
DENIES Reyes’ petition.
[4]
II.
ANALYSIS
Claim I of Reyes’ petition is based on the alleged
unreasonable application of the Saferian/Strickland test by the
Appeals Court when it analyzed LeRoy’s failure to disclose at
trial that the victim had reported seeing ghosts on several
occasions.2
Pet’r’s Mem. 36-39 (citing 28 U.S.C. § 2254(d)(1)).
Reyes also alleges that his counsel unconstitutionally failed to
disclose those ghost reports to Dr. Begany, and failed to call
him as an expert witness during trial.
Id. at 41.
In Claim II of the petition, Reyes argues that the Appeals
Court based its decision on unreasonable findings of facts.
at 45 (citing 28 U.S.C. § 2254(d)(2)).
Id.
According to him, the
Appeals Court inaccurately indicated that two expert witnesses
agreed that ghosts are like imaginary friends, and that LeRoy
strategically decided not to call Dr. Begany supposedly in
response to the Commonwealth’s expert testimony about ghosts –none of which actually occurred at trial.
Id. at 45-51.
The Massachusetts Attorney General (“Attorney General” or
“Commonwealth”) asserts that the Superior Court and the Appeals
Court decisions are not objectively unreasonable.
Opp’n Pet. (“Resp’t’s Opp’n”) 1, ECF No. 20.
2
Resp’t’s Mem.
According to the
Specifically, Reyes points out that M.R. said that she saw
a ghost prior to meeting Reyes, that a ghost committed the rape
and that the ghost caused her to report the rape. Pet’r’s Mem.
36, 37; cf. Resp’t’s Mem 3, 13.
[5]
Commonwealth, the Appeals Court decision was not “based on an
unreasonable determination of the facts,” 28 U.S.C. §
2254(d)(2), even were there were “one or more factual
inaccuracies” in that decision.3
Id. at 21.
The Commonwealth
further argues that even if there was an unreasonable
determination of the facts, Reyes cannot prove that there has
been a violation of federal law.
Id. at 23.
It also contends
that Reyes failed to sign the petition, which itself warrants
dismissal.
Id. at 23-24.
This Court will focus first on the accuracy of the legal
standards employed by the Commonwealth courts and second on the
factual inaccuracies in the Appeals Court’s recitative of the
facts and the legal effects thereof.
A.
Standard of Review
Federal habeas corpus relief can be awarded only in very
limited and specific circumstances.
28 U.S.C. § 2254.
Section
2254(d)(1) provides that habeas relief ought be granted if the
state court decision adjudicated on the merits was “contrary to,
or involved an unreasonable application of, clearly established
3
As will be seen, it is deeply troubling that the
Massachusetts Appeals Court appears to have issued an opinion
which, in material particulars, gets the facts wrong. This
Court suggested to the Commonwealth at the habeas hearing that
perhaps it might join with the petitioner and seek a re-hearing
at which the admitted “factual inaccuracies” might be cleared
up. The Attorney General demurred.
[6]
Federal Law, as determined by the Supreme Court of the United
States.”
Neither Reyes nor the Commonwealth disputes that the
Appeals Court decided the case on the merits.
Reyes, however, does contend that the Appeals Court’s
decision involved an unreasonable application of federal law,
viz., the Strickland test.
Strickland v. Washington, 466 U.S.
668, 687 (1984); Pet’r’s Mem. 1-2.
Unreasonable application of
clearly established federal law occurs when the state court
properly identifies the governing legal principles, but
nevertheless:
(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. . . . To be unreasonable, the state
court’s application of existing legal principles must
be more than merely erroneous or incorrect.
Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (citing
L’Abbe v. DiPaolo, 311 F. 3d 93, 96 (1st Cir. 2002); Williams v.
Taylor, 529 U.S. 362, 407, 411 (2000)).
Reyes also contends that the Appeals Court decision was
based on an unreasonable determination of the facts.
Mem. 1-2 (citing 28 U.S.C. § 2254(d)(2)).4
Pet’r’s
See generally Lucien,
871 F.3d at 127 n.4.
4
According to 28 U.S.C. § 2254(e)(1), the factual
determinations made by the state court are to be taken as
[7]
The First Circuit has yet to define the specific situations
where section 2254(d)(2) applies; however, the Ninth Circuit has
done so in a manner that this Court believes is reasonable and
therefore adopts.
The unreasonable determination clause of
section 2254(d)(2) applies to claims where the petitioner
alleges that: (i) “the finding is unsupported by sufficient
evidence,” (ii) “the process employed by the state court is
defective,” or (iii) “no finding was made by the state court at
all.”
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004),
overruled on other grounds, Murray v. Schriro, 745 F.3d 984,
999–1000 (9th Cir. 2014)).
“[W]here the state courts plainly
misapprehend or misstate the record in making their findings,
and the misapprehension goes to a material factual issue that is
central to petitioner’s claim, that misapprehension can fatally
undermine the fact-finding process, rendering the resulting
factual finding unreasonable.”
Id. at 1001.
It is not enough
that the court’s factual determinations are erroneous; they must
correct and it is the petitioner who bears the burden of proving
the contrary “by clear and convincing evidence.” The First
Circuit has recognized that the precedent is not clear regarding
the relationship between sections 2254(d)(2) and 2254(e)(1).
See Lucien v. Spencer, 871 F.3d 117, 127 n.4 (1st Cir. 2017).
As in the First Circuit cases, this Court need not decide the
issue because following either section 2254(d)(2) or 2254(e)(1)
it would conclude that the Appeals Court reached an unreasonable
factual determination. See infra II.C.
[8]
be unreasonable.
Smith v. Dickhaut, 836 F.3d 97, 108 (1st Cir.
2016).
Even if the federal court finds that there was an
unreasonable determination of fact by the state court, the writ
of habeas corpus may not be granted unless the petitioner
demonstrates a violation of federal law, Swarthout v. Cooke, 562
U.S. 216, 219 (2011), which in this case is Reyes’ claim of a
Sixth Amendment violation.5
1.
Federal Strickland Standard for Ineffective
Assistance of Counsel Claims
It is well established that a court evaluating a claim for
ineffective assistance of counsel must apply a two prong test:
(i) whether counsel’s performance was so deficient, and the
errors so serious, that his conduct “fell below an objective
standard of reasonableness,” according to the circumstances,
Strickland, 466 U.S. at 688; and, (ii) whether the deficient
performance of counsel was so prejudicial as to “deprive the
defendant of a fair trial, a trial whose result is reliable,”
id. at 687.
The defendant bears the burden of proof for both
5
Reyes also suggests, without argument or citation to
authority, that the Appeals Court’s factual mistakes amount to a
denial of his Fourteenth Amendment right to due process.
Pet’r’s Mem. 2 n.3 (citing 28 U.S.C. § 2254(d)(2)). The Court
can discern no colorable violation of due process here. Since
the factual errors in the Appeals Court’s decision were confined
to its discussion of Reyes’ ineffective assistance of counsel
claim, the Court construes his due process argument as a
repackaged Sixth Amendment claim and analyzes it accordingly.
[9]
elements, and courts must be highly deferential as to the
counsel’s strategies during trial, which carry the strong
presumption that the conduct falls within the range of
“reasonable professional assistance.”
Id. at 689, 690-91.
In scrutinizing a claim of ineffective assistance of
counsel, therefore, courts must analyze whether “counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,”
while prejudice requires demonstrating “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Harrington v. Richter,
562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687,
694).
2.
Massachusetts’ Saferian Standard for Ineffective
Assistance of Counsel Claims
Massachusetts courts apply the Saferian standard when
analyzing an ineffective assistance of counsel claim.
366 Mass. at 96.
Saferian,
A petitioner seeking habeas corpus relief in a
Massachusetts court must demonstrate: (i) that “there has been
serious incompetency, inefficiency, or inattention of counsel,”
and (ii) that the counsel’s behavior “likely deprived the
defendant of an otherwise available, substantial ground of
defence.”
Id.; see also Malone v. Clarke, 536 F.3d 54, 63 n.7
[10]
(1st Cir. 2008) (citing Commonwealth v. Sargent, 449 Mass. 576,
870 N.E.2d 602, 610 (2007)).
The Saferian and Strickland standards do not use the same
“phraseology” but for federal habeas corpus purposes “Saferian
is a functional equivalent of Strickland.”
Ouber v. Guarino,
293 F.3d 19, 32 (1st Cir. 2002) (citing Scarpa v. Dubois, 38
F.3d 1, 7-8 (1st Cir. 1994)); see also Stephens v. Hall, 294
F.3d 210, 215 (1st Cir. 2002).
3.
Doubly Deferential Standard in Federal Habeas
Corpus Review
On direct review under Strickland, a court would analyze
whether the criminal defendant showed that the trial counsel’s
performance was deficient and prejudicial.
466 U.S. at 687.
The standard that a federal court applies when analyzing a
petitioner’s claim that a state court has unreasonably applied
the Strickland principles, however, is “doubly deferential”:
First, the ‘pivotal question’ in a federal collateral
attack under Strickland is not ‘whether defense
counsel’s performance fell below Strickland's
standard,’ but ‘whether the state court's application
of the Strickland standard was unreasonable,’ that is,
whether ‘fairminded jurists’ would all agree that the
decision was unreasonable . . . . [and] Second, the
Strickland standard is a very general one, so that
state courts have considerable leeway in applying it
to individual cases.
Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) (quoting
Harrington, 562 U.S. at 101 (further citation omitted).
This
“doubly deferential standard of review . . . gives both the
[11]
state court and the defense attorney the benefit of the doubt.”
Jaynes v. Mitchell, 824 F.3d 187, 196 (1st Cir. 2016) (citing
Pena v. Dickhaut, 736 F.3d 600, 606 (1st Cir. 2013)).
B.
Propriety of Appeals Court’s Application of the
Strickland Test (Claim I)
Reyes argues that the Appeals Court’s decision was
unreasonable in concluding that LeRoy was reasonable when he
decided: (i) not to impeach M.R. with the ghost reports, (ii)
not to tell Dr. Begany about the ghost reports, and (iii) not to
call Dr. Begany as an expert witness during trial.
36-45.
Pet’r’s Mem.
The Commonwealth contends that, under the doubly
deferential standard, the Massachusetts court decisions must be
upheld because they are not an objectively unreasonable
application of the appropriate standard of review.
Resp’t’s
Opp’n 13-20.
1.
LeRoy’s Decision Not to Impeach M.R. Using the
Ghost Reports
The Appeals Court concluded that LeRoy’s tactic of focusing
his cross-examination on the various inconsistencies in M.R.’s
testimony, while omitting mention of her reported ghost
sightings, was not unreasonable.
Reyes, 2017 WL 3184424, at *4.
Reyes alleges that it was legally unreasonable to conclude that
LeRoy’s decision not to elicit testimony about ghosts was not
deficient, Pet’r’s Mem. 39, and it was prejudicial because
eliciting that information would have sown doubt in the minds of
[12]
the jurors.6
Id. at 43.
The Commonwealth argues that the
Appeals Court’s conclusion was not unreasonable because LeRoy
could reasonably have decided that the ghost reports would not
have added much to his strategy to focus on impeaching M.R. with
her inconsistent testimony.
Resp’t’s Opp’n 18.
The
Commonwealth further argues that LeRoy’s strategy was not
prejudicial because there was no substantial possibility of a
different outcome even had LeRoy elicited testimony about the
ghosts.
Id.
It was reasonable for the Appeals Court to reach its
conclusion because, as it reasoned, an effective defense does
not require the exhaustion of each and every method of
impeachment.
Reyes, 2017 WL 3184424, at *3 (citing Commonwealth
v. Duran, 435 Mass. 97, 55 N.E.2d 260, 268 (2001)).
6
Indeed,
According to Reyes, he would have not been convicted if
LeRoy would have impeached the credibility of M.R. with the
following statements, Pet’r’s Mem. 20-21:
(i) M.R.’s revelation to an investigator for the Child
Protection Bureau that a little girl was haunting her and tried
to hurt her (nonexistent) little sister, App. Vol. III 45;
(ii) The claim of Reyes and Angelique Pina -- Reyes’s
sister -- to the Sexual Assault Unit Investigator, that M.R.’s
story was inconsistent since it changed from “saying it was
rape, to she does not know, to she could have been dreaming . .
. [and] is now seeing ghosts,” id. at 47;
(iii) M.R.’s discussion with her school counselor, Rachel
Jarudi, regarding ghost friends, spirits, and ghosts trying to
hurt her, id. at 59-61; and
(iv) Angelique Pina’s testimony before the grand jury that
“[M.R.] didn't know [M.R.] thought it was ghost, it could have
been a ghost or something,” id. at 63.
[13]
scattershot cross examination is frequently less effective than
a targeted approach.
See William Owen (“Bill”) James, Jr., Are
Younger’s Ten Commandments of Cross Still Good Law in Today's
Courtroom?, 42 Champion 34, 36 (Dec. 2018) (discussing Professor
Irving Younger’s view of cross-examination as “a commando raid”
that “is only effective if the jury remembers the questions
asked,” and so should be “limited to two or three concise and
sharp points”); see also Stephen D. Easton, Irving Younger’s Ten
Commandments of Cross-Examination: A Refresher Course, with
Additional Suggestions, 26 Am. J. Trial Advoc. 277, 283 (2002)
(“[A]n ideal cross-examination should support three, two, or
(best of all) one point(s) that you will use in summation to
argue that the witness is not a reliable source of information.
. . .
[Jurors] have a limited capacity to learn and retain
information through listening.
It is easy to exceed this
capacity by asking too many questions, or by asking questions
about too many topics.”).
LeRoy himself reasonably explained
that he decided not to elicit any testimony in this regard
because he sought a better strategy to impeach the credibility
of M.R. by depicting her as “pathological liar.”
95-98.
App. Vol. III
Although not completely satisfied by the result of the
case, LeRoy noted that his mendacity strategy was effective
enough to acquit Reyes of two of the charges.
[14]
Id. at 128.
This Court defers to the Appeals Court’s analysis of
LeRoy’s strategy and his decision not to elicit this information
during trial.
A fair-minded jurist could conclude, as did the
Appeals Court, that LeRoy’s strategy did not place his
representation “outside the wide range of professionally
competent assistance.”
2.
See Strickland, 466 U.S. at 690.
LeRoy’s Decision Not to Mention the Ghost Reports
to Dr. Begany
Reyes alleges that the Appeals Court unreasonably applied
Strickland when it ruled that LeRoy was not unreasonable in
declining to tell Dr. Begany about M.R.’s statements referring
to ghosts.
Pet’r’s Mem. 41.
Reyes claims that LeRoy’s decision
was prejudicial because Dr. Begany could have testified as to
the ghost sightings and materially undermined M.R.’s
credibility.
Id. at 40, 43-45.
The Commonwealth argues that
this decision was not unreasonable or prejudicial because even
in hindsight, Dr. Begany “still could not provide an opinion as
to what caused the victim to report alleged sexual abuse.”
Resp’t’s Opp’n 20.
The Appeals Court did not address this issue specifically.
This Court thus “look[s] through” that decision to the Superior
Court decision on the motion for a new trial.
Sellers, 138 S. Ct. 1188, 1193-94 (2018).
Wilson v.
The Superior Court
acknowledged that it was “perhaps troubling” that LeRoy omitted
[15]
telling Dr. Begany that M.R. saw ghosts.
Decision 9.
Superior Court
The Superior Court reasoned it was unlikely,
however, that the ghost reports would have altered Dr. Begany’s
testimony, and even with such knowledge Dr. Begany “[could not]
provide an opinion regarding the cause of the victim’s claims.”
Id.
A reasonable attorney would have at least mentioned to his
own potential expert witness all the facts that could affect the
expert’s testimony; otherwise counsel is not able strategically
to decide whether the expert testimony would have bolstered its
own defense theory.
See, e.g., Holsomback v. White, 133 F.3d
1382, 1388 (11th Cir. 1998) (deeming counsel ineffective for
being unaware that testimony would have helped his case when he
never actually spoke with the expert witness); see also Anderson
v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) (stating that
counsel had not made a “strategic choice against pursuing a
certain line of investigation when [he] has not yet obtained the
facts on which such a decision could be made” (quoting United
States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989))); Samuel R.
Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1139 (1991)
(“[T]he preparation of expert testimony often involves extensive
detailed cooperative work by the expert and the attorneys who
hired her . . .” and the expert “is dependent on the lawyer for
the preparation that will make her success possible.”); James E.
[16]
Daniels, Managing Litigation Experts, 70 ABA J., Dec. 1984, at
64-66 (“Effective communication with experts has several
objectives: to provide enough information so that the expert
will be well-prepared, but to avoid providing materials that
would open the door to otherwise unavailable lines of crossexamination; to give the expert leeway to develop ideas and
conclusions with the requisite independence, but to provide
sufficient guidance so that helpful opinions are reached; to
make the expert a colleague while at the same time preserving
objectivity.”).
Although it was unreasonable for LeRoy to make
some sort of “strategic” decision not to tell Dr. Begany about
M.R.’s ghost reports, this decision was not prejudicial.
There
is not a reasonable probability that, had Dr. Begany been
properly apprised of the ghost reports, he would have testified
in a way that may have altered the trial’s outcome.
See
Harrington, 562 U.S. at 104.
Even after belatedly being told of the ghost sightings, Dr.
Begany was not sure about the motivations of M.R. in making the
statements regarding ghosts and he indicated numerous potential
causes: seizure disorder, untreated diabetes, central nervous
system infection, head injury, trauma, or prior abuse.
Vol. III 164.
App.
Dr. Begany also stated that memory is
inconsistent and recalled “slightly differently every time,” and
this may explain different and partial disclosures.
[17]
Id. at 167.
It is not reasonably probable that his testimony would have
created a reasonable doubt that Reyes was guilty.
See Lucien v.
Spencer, No. 07-11338, 2015 U.S. Dist. LEXIS 134154, at *90-98
(D. Mass. Sept. 30, 2015) (Wolf, J.), aff’d, 871 F.3d 117 (1st
Cir. 2017).
M.R.’s inconsistent reports and ghost sighting were
possibly related to her age and the alleged sexual trauma.
App. Vol. II 20-22.
See
There was sufficient additional evidence
suggesting that M.R. was lying, and still the jury found Reyes
guilty on some counts.
Therefore, the result of the trial would
have been the same even had LeRoy properly informed Dr. Begany
of the reported ghost sightings.
3.
LeRoy’s Decision Not to Call an Expert Witness
Reyes alleges that the Appeals Court applied Strickland in
an unreasonable manner when it determined that LeRoy reasonably
decided against calling an expert to rebut the Commonwealth’s
experts.
Pet’r’s Mem. 39-42.
The Commonwealth claims that the
Appeals Court decision was reasonable because “any potential
benefit” derived from Dr. Begany’s testimony “was minimal” since
“there was other evidence that weighed against the victim’s
credibility.”
Resp’t’s Opp’n 19.
The Appeals Court concluded
that LeRoy reasonably decided not to call Dr. Begany to counter
the Commonwealth’s expert testimony because in Dr. Begany’s
opinion “the victim’s ghost sightings [were] not unusual, and
[18]
are often spurred by trauma such as sexual assault.”
Reyes,
2017 WL 3184424, at *2.
It was reasonable for the Appeals Court to reach that
conclusion.
Had Dr. Begany testified at trial, he likely would
have “bolstered” the testimony of the Commonwealth’s witnesses.
App. Vol. III 104.
LeRoy’s strategy focused on demonstrating
that M.R. was, allegedly, a pathological liar.
Id. at 96.
The
Appeals Court reasoned that Dr. Begany would potentially have
undercut the defense’s theory because he would have confirmed
that children normally lie when exposed to traumatic
experiences.
Reyes, 2017 WL 3184424, at *3.
Even after the
trial, when Dr. Begany became aware of the ghost reports, he
asserted that it is common for children to have sensory
experiences.
App. Vol. III. 179.7
7
Reyes repeatedly contends that Dr. Begany never reached
the conclusion that ghosts are like imaginary friends. Pet’r’s
Mem. 29, 48. The transcripts from the evidentiary hearing on
the motion for a new trial allow the inference that Dr. Begany
concluded that a perceptual experience -- like ghosts or
imaginary friends -- is not uncommon among kids. App. Vol. III
152–85. Particularly, Dr. Begany indicated:
If a child or somebody brought a child to me who is
saying these things, I would have a lot of discussion
about the actual experience. What did you see? When do
you see it? What – under what circumstances do you see
it? Because . . . you mentioned imaginary friends.
That is a very normal experience with children, so it
-- there would have to be some inquiry as to the
extent to which this was beyond really what -- what’s
normal and -- or, you know, inquiry along the lines of
-- of differentiating or determining, you know, what
[19]
A fair-minded jurist could have concluded, as did the
Appeals Court, that LeRoy had performed sufficiently by
declining to call Dr. Begany as an expert witness.
See Lucien,
2015 U.S. Dist. LEXIS 134154, at *84 (“When a potential
witness’s testimony presents a ‘mixed bag’ that might have a
‘possible negative impact’ on the defendant’s case, the decision
not to call that witness is unlikely to be ‘patently
unreasonable.’") (citations omitted).
For these reasons, this Court concludes that the Appeals
Court reasonably applied the Strickland test in concluding that
LeRoy’s performance met constitutional standards, even if he did
not impeach M.R. with the ghost stories and did not call an
sort of, you know, normal and high normal and what’s - what might be exaggerated for a particular purpose
and what might really be a genuine sort of perceptual
experience that may be more indicative of mental
health problems.
Id. at 160-61.
He further explained:
Q: And it’s fair to say that you also testified that
it is not unusual, and in fact it’s a very normal,
experience for children to have what we all use in
layman’s terms to call imaginary friends or -A [Dr. Begany]: Yeah, absolutely.
Q: -- or experiences where they talk to an individual
others do not see or state that they are or state that
they're having a conversation of such?
A [Dr. Begany]: Yes. I should clarify that they're
usually friendly.
Q: Usually.
A [Dr. Begany]: I have never come across a child who
had a bully for a – an imaginary partner, so –.
Id. at 179.
[20]
expert witness at trial.
While LeRoy unreasonably omitted the
ghost stories in private communications with Dr. Begany, the
Superior Court properly concluded under Strickland’s second
prong that this failure by the defense attorney was not
prejudicial.
Therefore, this Court DENIES Reyes’s first claim
under 28 U.S.C. § 2254(d)(1).
All this is rather academic, of
course, since –- as discussed in the next section -– the Appeals
Court botched the facts, i.e., appears to have assumed “facts”
not in evidence.
C.
Appeals Court Factual Determinations (Claim II)
Reyes argues that the Appeals Court decision was based on
an “unreasonable factual findings in light of evidence
produced.”
Pet’r’s Mem. 45.
The Commonwealth replies that the
decision of the Appeals Court was not based on an “unreasonable
determination of the facts,” even if there were “one or more
factual inaccuracies.”
Resp’t’s Opp’n 21 (citing 28 U.S.C. §
2254(d)(2)).8
8
The Commonwealth also argues that section 2254(d)(2) does
not necessarily apply in this case. Resp’t’s Opp’n. 21-22.
That position lacks merit. The First Circuit in Ouber, 293 F.3d
at 27, indicated that section 2254(d)(2) was of limited utility
in an inquiry involving mixed questions of law and fact.
(stating that section 2254(d)(2) “applies only to determinations
of ‘basic, primary, or historical facts’” and “mixed fact/law
conclusion,” such as the performance and prejudice components of
the Strickland test are “more appropriately analyzed under the
‘unreasonable application’ prong of section 2254(d)(1)”). When
the analysis relies on factual mistakes made by the state
courts, however, section 2254(d)(2) does guide the inquiry. See
[21]
The Appeals Court misunderstood the facts and reached
unreasonable factual findings when it alluded to expert
witnesses, alleged agreements between witnesses, and strategic
decision based on testimonies nowhere in the record.
Reyes has
complied with his burden, and it is clear that the Appeals Court
decision was factually unreasonable.
See Taylor, 366 F.3d at
1001.
This Court reviews, de novo, whether Reyes’s Sixth
Amendment right was violated by LeRoy’s decision not to impeach
M.R. using her reported ghost sightings or to call an expert
witness.
See Panetti, 551 U.S. at 954 (considering
“petitioner’s claim on the merits and without deferring to the
state court’s finding of competency” because “the factfinding
procedures upon which the [state] court relied were ‘not
adequate for reaching reasonably correct results’ or, at a
minimum, resulted in a process that appeared to be ‘seriously
inadequate for the ascertainment of the truth’” (quoting Ford v.
Wainwright, 477 U.S. 399, 423-24 (1986)(Powell, J., concurring
in part and concurring in the judgment)).
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (noting that
section 2254(d)(2) allows a federal court to overturn a state
court decision if its factual basis was “objectively
unreasonable in light of the evidence presented in the statecourt proceeding”).
[22]
1.
The Appeals Court Relied on Expert Testimony that
Did Not Occur at Trial
When analyzing whether LeRoy’s assistance was ineffective
in not using the reports of ghosts to impeach M.R., the Appeals
Court stated:
The victim was a young child and two experts,
including the defense expert that had testified at the
motion hearing, agreed that ghost sightings, or, as
commonly known ‘imaginary friends,’ are not a unique
occurrence for a child the victim’s age. Moreover,
both experts also indicated that trauma, such as
sexual abuse, could spur a child to conjure these
imaginary images. In this case, the claims that the
child interacted with ghosts preceded her report of
rape by the defendant; however, it was only after the
rape that the ghosts became aggressive towards the
child. Such evidence would have served to bolster the
Commonwealth’s theory that a rape had occurred and
undercut the defendant’s theory that she was lying.
This is particularly true here, where the child
claimed to have enjoyed a similar, friendly
relationship with the defendant up until the rape.
Reyes, 2017 WL 3184424, at *1 (emphases added).
The record shows that neither of the Commonwealth’s expert
witnesses testified at trial about M.R.’s ghost stories, nor did
they testify to a link between ghosts and imaginary friends.
App. Vol. I 24-248; App. Vol II 3-280.
One expert, Dr.
Stephanie Block, testified regarding delayed disclosure, id. at
6-34, while the other expert, Dr. Alice Newton, testified as to
sexual development and physical examination in sexual assault
cases, id. at 37–60.
The Appeals Court apparently assumed that
Dr. Begany agreed with some other expert that ghost reports made
[23]
by kids are not unusual after sexual assault.
3184424, at *1.
Reyes, 2017 WL
Had the Appeals Court correctly understood that
only one expert (Dr. Begany) testified -– and that one posttrial -– about ghost stories, then it could not reasonably have
concluded that Dr. Begany had acquiesced to the idea that
reports of ghosts are a consequence of sexual abuse.
The
reliance on this factual error critical to its conclusion
renders the Appeals Court decision unreasonable.
See Wiggins v.
Smith, 539 U.S. 510, 528 (2003) (“This partial reliance on an
erroneous factual finding further highlights the
unreasonableness of the state court’s decision.”).
Nevertheless, the Appeals Court reasonably concluded that
Dr. Begany linked imaginary friends to ghosts.
After the trial,
Dr. Begany did acknowledge that M.R.’s references to “having a
sensory experience that was primarily visual, also auditory,”
could be understood as similar to an imaginary friend and that
such perceptions are “a very normal experience with children.”
App. Vol. III 160-61.
See supra note 6.
The Appeals Court also found that Dr. Begany and a state
witness agreed that ghost stories can be a consequence of sexual
assault trauma.
That never happened.
The Appeals Court simply
erred in concluding that Dr. Begany and a Commonwealth expert
agreed on the analysis of M.R.’s ghost sightings.
None of the
Commonwealth’s witnesses ever mentioned that a ghost visitation
[24]
or imaginary friend can be caused by sexual assault trauma.
The
only expert witness who testified to the ghost stories -– and
only post-trial -- was Dr. Begany.
He simply could not have
agreed with a Commonwealth witness on this matter as his ghost
testimony covered totally new ground.
Had the Appeals Court
correctly understood that only Dr. Begany testified as to the
ghost reports, it could not reasonably have concluded that there
was agreement between the defense and the Commonwealth’s theory
of the case.
The reliance on this factual error -- critical to
its conclusion -- makes the Appeals Court decision unreasonable.
See Wiggins, 539 U.S. at 528.
D.
On De Novo Review, LeRoy’s Conduct Did Not Violate
Reyes’s Sixth Amendment Right
As the Appeals Court unreasonably read the record before it
and based its decision on erroneous factual determinations, this
Court cannot therefore defer to the Appeals Court in its
analysis of whether LeRoy’s assistance was effective.
Id.
This Court freshly analyzes Reyes’s claims under the
Strickland standard and rules that LeRoy’s assistance was not
ineffective.
1.
Reasonableness of LeRoy’s Performance
This Court’s de novo analysis centers on whether it was
reasonable for LeRoy not to impeach M.R. with the ghost reports
and not to call Dr. Begany as an expert witness.
[25]
a.
It Was Reasonable Not to Use the Ghost
Reports to Impeach M.R.
LeRoy decided not to use, as a method of impeachment, the
stories that M.R. had contacts with ghosts.
not unreasonable.
This decision was
When the alleged error is failure to impeach
a Commonwealth witness, the court needs to assess “the strength
of the prosecution’s case, and the effectiveness of the defense
absent the impeachment evidence.”
Malone, 536 F.3d at 64
(quoting Stephens, 294 F.3d at 218).
After that analysis, the
court must determine the potential impact of the impeachment
evidence “in undermining the credibility of the witness’s
testimony.”
Id. (quoting Stephens, 294 F.3d at 218).
The prosecution’s case was strong.
The Commonwealth
presented Racelle Jarudi Fitek, the outpatient clinician at
M.R.’s elementary school, who testified as to the reactions she
observed when M.R. was relating to her the sexual assault
events, App. Vol. I. 223, and the fear that M.R. had of being
taken away from her home if she disclosed all the incidents of
sexual abuse,9 id. at 228.
Detective Lanita Cullinane, of the
Boston Police Department’s Crimes Against Children Unit,
9
The jurors were instructed that Jarudi’s testimony could
not be considered “as evidence that the assaults in fact
occurred. The purpose of this complaint evidence is to assist
you in your assessment of the credibility and reliability of the
complainant, [M.R.’s] testimony, here in court.” App. Vol. I
215.
[26]
provided information regarding the reconstruction of the floor
plan and the letters written by M.R. and directed to Reyes.
at 231-38.
Id.
As expert witnesses, the Commonwealth called
Stephanie Block, Ph.D., and Alice Newton, M.D.
Dr. Block
testified that delayed disclosure of sexual assault is very
common among child victims of sexual abuse, as well as to the
reasons why this behavior occurs.
App. Vol. II 19, 21–23.
Dr.
Newton testified that absence of physical evidence (such as
bruising or injury) in sexual assault cases of children M.R.’s
age is not indicative of lack of sexual assault.
Id. at 51.
LeRoy’s defense was effective even without mentioning the
ghost reports as impeachment evidence.
LeRoy cross-examined
Racelle Jarudi Fitek to emphasize that M.R. could have told her
all about the sexual abuse situations without fear of being
taken away from her home, and even with this information, M.R.’s
stories were inconsistent.
App. Vol. I 228-30.
LeRoy also
cross-examined Dr. Block regarding false reports and the ability
of children to communicate, suggesting that there was no reason
for M.R. not to disclose the sexual assault in absence of
threats.
App. Vol. II 28-34.
As to Dr. Newton’s cross-
examination, LeRoy sought to elicit testimony that physical
examinations lack value, because in cases where the perpetrator
has confessed only 40% of physical exams show signs of trauma,
and that spermal DNA evidence could have been collected from
[27]
M.R.’s pajamas or bedsheets and would have been useful to
determine whether a sexual act had occurred in this case.
Vol. II 56-58.
App.
LeRoy also affirmatively presented the testimony
of .R.’s brother, id. at 61; Angelique Pina, Reyes’ sister who
had previously lived with the family, id. at 77; M.R.’s mother,
id. at 96; and Reyes himself, id. at 156.
The ghost reports likely would not have been decisive for
the purpose of undermining the credibility of M.R.’s testimony.
The verdict depended upon the credibility of M.R.,10 who told
inconsistent stories regarding different accusations of sexual
assault.
During trial, LeRoy used these different reports to
show that M.R.’s story was inconsistent, and in his closing
argument he emphasized why the jurors ought not believe M.R.’s
testimony.
App. Vol. II 256–670.11
The victim’s credibility was
10
There was no physical evidence in this case. One expert,
Dr. Newton, testified that such evidence is not necessary to
establish that sexual assault has occurred. App. Vol. II. 51.
11
LeRoy stressed that the Commonwealth’s expert witnesses
were not useful because they concluded that “[a]ny time a little
girl says anything about [being] sexually molested whether she
takes it back or not, it’s to be believed.” App. Vol. II 258.
LeRoy also pointed out to the jurors several
inconsistencies in M.R.’s testimony, asserting that she was
lying because: (i) “[s]he gave a different story than she had
given the day before when she told Angelique Pina . . . that he
raped her anally, she told Ms. Fitek that this had happened on
several occasions. So right away the story is changing,” id. at
259; (ii) “[a]fter all of this she doesn’t remember Javier’s
last name. She remembers that he read her Charlotte’s Web one
night, but she can’t remember after living with him for three
years, de [facto] stepfather, she can’t remember his last name,”
[28]
a major issue during trial and the Commonwealth’s attorney had
to rehabilitate M.R.’s credibility by asserting that “there is
simply no reason why [M.R.] would come in here and make up a
story.”
Id. at 271.
The Commonwealth’s attorney additionally
gave the jurors explanations of why M.R. had different stories
and why she ought be believed.
Id. at 275 (observing that the
reason why M.R.’s story was inconsistent was because M.R. was
worried about “[w]hat would happen to her?”).
As a result of LeRoy’s efforts during trial, Reyes was
acquitted of two charges of indecent assault and battery on a
child under the age of fourteen.
App. Vol. I 9, 18.
When asked
during the post-trial hearing why he omitted the ghost claims,
LeRoy replied: “I thought it was less significant than -- and I
wanted to highlight the claims against Mr. Reyes. The lies
against Mr. Reyes I thought were far more valuable to the
defense than the ghosts.”
App. Vol. III 98.
This was a trial
strategy, to disregard a less effective defense and focus on a
id. at 261; (iii) “[She] has an inability to take a story and
stick to it,” id. at 261; (iv) “Javier Reyes came back from
Florida in 2007. He wasn’t even living in the house when she was
in the first grade. But she testified that Javier came in and
tried to pull her pants down,” id. at 262; (v) “These are
letters from someone who has made allegations of being sexually
abused. And when she’s asked about it on cross-examination: My
mother missed him.” Id. at 264. Finally, LeRoy remarked that
the evidence showed that M.R. “was a confused and troubled
little girl, and I think you saw that very, very much in
evidence when she testified.” Id. at 269.
[29]
defense that can be supported with more evidence.
See Hensley,
755 F.3d at 737 (“The decision whether to call a particular
witness is almost always strategic, requiring a balancing of the
benefits and risks of the anticipated testimony.” (quoting
Horton v. Allen, 370 F.3d 75, 86 (1st Cir. 2004))).
The record indicates that LeRoy was diligent by impeaching
M.R. on multiple occasions, and therefore his performance did
not “f[a]ll below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688; see also Malone, 536 F.3d at 67
(concluding that potential value of impeachment evidence “would
not have significantly undermined [the victim’s] credibility”
because “defense counsel did not fail to impeach [the victim]
[a]nd the jury was repeatedly presented with [the victim’s]
inconsistent statements, inconsistencies that the prosecution
acknowledged.
The jury nevertheless found [the victim] credible
regarding the allegations of sexual abuse.”).
LeRoy’s decision was reasonable and therefore not in
violation of Reyes’s Sixth Amendment right.12
12
A court can decide in which order it will analyze the two
Strickland prongs and if the court finds that one of the two
prongs are not met, then the claim for ineffective assistance of
counsel will fail. See Gonzalez-Soberal v. United States, 244
F.3d 273, 277-78 (1st Cir. 2001) (citing Strickland, 466 U.S. at
697).
Even assuming, arguendo, that it was unreasonable for LeRoy
not to impeach M.R. with the ghost reports, that decision was
not prejudicial. The ghost sightings could have reinforced the
theory that M.R. was lying, but LeRoy was already actively
[30]
b.
It Was Unreasonable for LeRoy Not to
Disclose the Ghost Reports to Dr. Begany
It was unreasonable for LeRoy not to inform his own
potential expert witness of M.R.’s ghost sighting because Dr.
Begany then lacked the necessary information to render a
reliable opinion, and thus LeRoy could not ascertain whether he
should call him to the stand.
It was an unreasonable mistake for LeRoy to omit telling
important information regarding M.R.’s reports of supernatural
events to his own potential witness, and LeRoy did not have a
reasonable explanation for such omission.
When LeRoy explained
why he did not mention the ghost sightings to Dr. Begany he
insisted that such claims were less concerning than his
mendacity defense, without further explanation.
98, 105.13
App. Vol. III
These explanations by LeRoy do not suggest strategic
pursuing this strategy. See, e.g., App. Vol. I 153-75 (vague
recollection of the facts); id. at 160-82 (inconsistencies and
recanting versions of the sexual conduct); id. at 169, 197
(affectionate letters to Reyes even after he sexually assaulted
M.R.); id. at 209-13 (influences that may have affected M.R.’s
testimony). Even had LeRoy mentioned the ghost sightings, this
line of defense would not have created a reasonable doubt as to
Reyes’s innocence. There is no degree of certainty that the
verdict would have been different had LeRoy impeached M.R. with
the reports of ghost sightings.
13 LeRoy specifically testified:
I was definitely underscoring that the girl was a
pathological liar, that the family members said that
she lied a lot. I would not bet my life on it either
way, but I –. . ., per se, did not think the ghosts -I just put them under the umbrella of it was probably
[31]
decisions or tactical choices.
Indeed, it is difficult to
imagine any reasonable justification for withholding the reports
of ghost sightings from his own potential expert witness in a
private consultation, when such a disclosure might have led to
the defense’s only expert opinion on the case.
It was an
omission, not a strategic decision, and therefore unreasonable.
See Young v. United States, 56 A.3d 1184, 1198 (D.C. 2012)
(trial counsel’s decision was not strategic because it “didn't
occur to [him] to” consult with an expert witness (alteration in
original)).
2.
LeRoy’s Decision, Although Unreasonable, Was Not
Prejudicial
LeRoy’s omission of the ghost reports in his discussion
with Dr. Begany was not prejudicial.
The potential utility of
Dr. Begany’s testimony would have been to undermine M.R.’s
credibility, but LeRoy was already making strategic decisions on
how best to undermine M.R.’s credibility.
Dr. Begany’s
testimony would not have changed the trial result.
See supra
II.B.2.
I think one of the more normal lies that -- that I was
less concerned about th[a]n the sexualization, the
notes to Mr. Reyes, the leaving school with claims of
being sick on many occasions. I think the ghosts I was
less concerned about that th[a]n these other factors.
App. Vol. III 105.
[32]
LeRoy’s conduct did not violate Reyes’s Sixth Amendment
right and therefore this Court DENIES claim II.
E.
Failure to Sign Habeas Corpus Petition
Rule 2(b)(5) Governing Section 2254 Proceedings requires
that the habeas corpus petition be “signed under penalty of
perjury by the movant or by a person authorized to sign it for
the movant.”
A person authorized to sign the habeas corpus
petition can be the attorney of the petitioner.
See, e.g.,
Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) (discussing
the prerequisites for “next friend” standing in petition for
habeas corpus).
In the present case, Reyes’s attorney, Kathryn
Karczewska Ohren, signed the petition on his behalf.
16.
Petition
The Commonwealth’s argument lacks merit and this Court
rejects it.
III. CONCLUSION
The Appeals Court reasonably applied federal law in
concluding that LeRoy did not violate Reyes’s Sixth Amendment
right as to the impeachment methods used during trial or by
choosing not to call Dr. Begany as an expert witness.
The
Appeals Court’s conclusion that it was reasonable for LeRoy to
withhold important information from his own expert witness was,
however, unreasonable.
prejudicial.
Nevertheless, LeRoy’s conduct was not
Therefore, this Court DENIES Claim I.
[33]
The Appeals Court did unreasonably review the factual
record and based its decision on these misconceptions.
After a
de novo analysis, this Court rules that LeRoy’s impeachment
decisions were not unreasonable or prejudicial, and while
LeRoy’s decision not to inform Dr. Begany about the ghost
stories was unreasonable, it was not prejudicial.
Therefore,
this Court DENIES Claim II.
SO ORDERED.
/s/ Wiliam G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
[34]
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