Andrade v. Vidal et al

2018 | Cited 0 times | D. Massachusetts | June 29, 2018


SETH ANDRADE, ) Petitioner, ) v. ) CIVIL ACTION NO. 15-13247-IT OSVALDO VIDAL, ) Respondent. )


June 29, 2018 DEIN, U.S.M.J.

I. INTRODUCTION , was convicted of first degree murder on the theory of deliberate premeditation, and of unlawful possession of a firearm, by a Bristol County jury on April 3, 2012. His conviction was affirmed by the Massachu- setts Supreme Judicial Court on June 25, 2014 in Commonwealth v. Andrade, 468 Mass. 543, 11 N.E.3d 597 (2014). He filed his timely habeas petition pursuant to 28 U.S.C. § 2254 questioning of potential jurors concerning the effect, if any, of the absence of eyewitness testimony to the murder on their ability to reach a verdict. Andrade contends that by her actions, the trial judge sat a jury that was predisposed towards guilt, and then coerced a guilty verdict, in violation of his right to an impartial jury as guaranteed by the Sixth Amendment of the United States Constitution. For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the habeas petition be DENIED.


Underlying Crime The facts relating to the underlying crime are not controlling on the issues raised by the habeas petition, and will be summarized herein. As the SJC described the facts the jury could have found, shortly after 8:30 p.m. on January 20, 2010, the victim was shot and killed in the backyard at 192 Purchase Street in New Bedford, Massachusetts. Andrade, 468 Mass. at 544, 11 N.E.3d at 599. There were two gunshot wounds to the head, and while the medical examiner could not determine which wound was first, both were fatal and would have caused an immediate loss of consciousness. Id. There were no eyewitnesses to the shooting, but nearby residents heard loud bangs and saw two young men, appearing to be in their late teens, leaving the area. Id. One was wearing a brown canvas jacket and had a hood over his head, and th Id. at 544, 11 N.E.3d at 600. The victim, accompanied by three men wearing hooded sweatshirts, had attempted to buy marijuana earlier in the evening, but the money provided by one of the three men was not real, and the purchase was not consummated. Id. at 544-45, 11 N.E.3d at 600. The victim and the three men left the scene of the aborted transaction at 8:01 by taxicab, and were dropped off near the residence of Edwin Jorge. Id. at 545, 11 N.E.3d at 600. At 8:20 p.m., a taxicab

1 The Respondent filed the state court record in a multi- No. 17. The SA will be cited by volume and page number. Avenue, which is behind Purchase Street. Id. The telephone call for the cab came from the

Id. About midnight, Edwin picked up Andrade and two other men (not the victim) from [d] Id. About a week later, Andrade told Edwin that, when the victim was looking as his phone, Id. Andrade also told Edwin that they had disposed

Id. A subsequent s pursuant to a search warrant, Id. Gunshot residue was

found on the lower sleeves and cuffs of the jacket, as well as inside the right front jacket pocket. Id. On February 2, 2010, Andrade was given his Miranda warnings and agreed to speak with police in a recorded interview. Id. at 546, 11 N.E.3d at 600. First he denied being in the backyard of 192 Purchase Street where the victim had been killed. Id. Later he admitted to being there when someone else had come into the yard and shot the victim, with the second Id. at 546, 11 N.E.3d at 600-01. He explained the gunshot residue on his jacket as being due to the fact that he went shooting on occasion at a relative home. Id. at 546, 11 N.E.3d at 601. This was denied by the relative. Id. at 546 n.3, 11 N.E.3d at 601 n.3. Andrade did not testify at trial. His theory was that someone else had shot the victim, and he called a forensic chemist to testify that the negative control used in the Common- Id. at 546, 11 N.E.3d at 601. He also attacked the credibility of Edwin Jorge, a key witness for the prosecution. Id.

Jury Selection The prosecutor had proposed individual voir dire questions concerning the effect, if any, of the absence of eyewitness testimony on the potential Id. Defense counsel did not object. Id. In fact, the record reflects that defense counsel suggested wording for, and approved the language of, the questions posed to the potential jurors. SA II:159-61. Thus, as the SJC found, the trial judge the fo

In this case, you may not hear any testimony from an eyewitness to the referred to as circumstantial evidence. Circumstantial evidence is proof of

a chain of circumstances from which you can infer that a fact exists. Would the fact that you will not hear eyewitness testimony to the actual shooting in and of itself prevent you from finding the defendant guilty if the Commonwealth, through circumstantial evidence, is able to convince you ? Andrade, 468 Mass. at 546-47, 11 N.E.3d at 601. The record indicates that while this question was answered unequivocally by most prospective jurors, it was followed by questions when necessary. In addition, unless a juror was excused based on his or her answer to this question, each potential juror was asked the following question:

Would you be able to follow my instructions that there is no difference in the probative value between direct and circumstantial evidence, and that circumstantial evidence may be competent to establish guilt beyond a reasonable doubt? Id. at 547 n.4, 11 N.E.3d at 601 n.4. 2

There were thirteen po initial - Id. at 547, 11 N.E.3d at 601. Each of them was dismissed for cause, without any follow-up questions being asked set aside their own opinions and follow the instructions of the judge. Id. answers s questions came after other issues, usually about scheduling, were

discussed with the trial judge. The specific answers to the challenged question of whether the absence of eyewitness testimony would prevent the potential juror from finding the defendant guilty were as follows:

1. -- ... I have a slight

SA II:194. 2. Id. at 217.

3. t Id. at 254.

4. Id. at 256. 5. Id. at 257-58.

2 posed to the individual potential jurors following the questions regarding circumstantial evidence: (1) who have received certain promises or deals from the Commonwealth regarding their own actions. Would that fact alone affect your ability to be a fair and impartial juror and decide this case based solely on the evidence introduced in the courtroom and th (2) Do you have any feelings about Cape Verdean/Portuguese people that may affect your ability to be fair E.g., SA II:178-79.

6. e would I be able to

conclude -- ... Id. at 279. 7. Id. at 281-82. 8. . ... Id. at 283-84.

9. Id.

at 294. 10. ... Id. at 338. 11. Id. at 345. 12. SA III:371 The thirteenth juror engaged in the following colloquy with the court:

A. [In response to the question:] s too hypothetical. Q. A. To answer in black and white yes or no without hearing it first to

Q. the absence of

eyewitness testimony would prevent you from A. It depends how the evidence presented builds the case one way

or the o based on circumstantial, just giving the statement, but I would

Q. Just giving a statement? A. In answer to your question. Q. A. Hell, no. No. Q. SA II:316-17. This colloquy followed a discussion with the potential juror who wanted to be excused due to his work schedule, and due to child care issues, although he had not listed any children on his juror questionnaire, and had given other inconsistent answers about child care. SA II:314-15.

Andrade contends that the fact that these 13 jurors were excused for cause without the judge posing any follow-up questions was in violation of clearly established federal law, and resulted in a jury that was predisposed to guilt, in violation of his Sixth Amendment right to a fair and impartial jury. See Andrade, 468 Mass. at 547, 11 N.E.3d at 601. He also contends that by posing the second question about there being no difference in the probative value of direct and circumstantial evidence, the trial judge created - which resulted not only ilty See Pet. Mem. (Docket No. 24) at 8-9. 3

The SJC Decision 4 The SJC initially on the merits, and sought to determine whether the trial judge abused her discretion in selecting a

3 Andrade also argu by the fact that the Commonwealth used some of its peremptory challenges to strike five potential jurors who Pet. Mem. at 37. This argument is not the state courts. Moreover, the record establishes that both sides used a large number of peremptory challenges without explanation. See, e.g., SA II:238-39, 271, 290, 329, 337; SA III:380, 385, 388. Since peremptory challenges, this point will not be addressed further. 4 Andrade has waived the other two issues he had raised on appeal to the SJC and included in his habeas petition which related closing argument. See Andrade, 468 Mass. at 543-44, 11 N.E.3d at 599; Pet. Mem. at 2 n.2. jury. Andrade, 468 Mass. at 547, 11 N.E.3d at 601. The Court also noted that if it concluded that there was such an abuse of discretion, the Court would then determine if there was Id.

However, as detailed herein, the SJC determined that there was no abuse of discretion in

excusing the jurors for cause, or in then asking the follow-up question. Id. at 549 n.5, 11 N.E.3d at 603 n.5. Therefore, the SJC did not consider whether the questioning had created a substantial likelihood of a miscarriage of justice. As the SJC ruled:

and the Sixth Amendment to the United States Constitution, applied to the States through the due process clause of the Fourteenth Amendment, guarantee Commonwealth v. McCowen, 458 Mass. 461, 494, 939 N.E.2d 735 (2010), quoting Commonwealth v. Vann Long, 419 Mass. 798, 802, 647 N.E.2d 1162 Commonwealth v. Vann Long, supra at 803, 647 N.E.2d s or be influenced by factors extraneous to t Commonwealth v. Garuti, 454 Mass. 48, 52, 907 N.E.2d 221 (2009), quoting Commonwealth v. Morales, 440 whether jurors [can] set aside their own opinions, [properly] weigh the

evidence ... and follow Commonwealth v. Perez, 460 Mass. 683, 688 689, 954 N.E.2d 1 (2011), quoting Common- wealth v. Bryant, 447 Mass. 494, 501, 852 N.E.2d 1072 (2006). overturned on appeal in the absence of a clear showing of abuse of Commonwealth v. Lopes, questioning of prospective jurors is to provide a defendant with a competent, fair, and unbiased jury. A trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jury can weigh and view Id. Previously, we have specifically addressed (and rejected) constitutional challenges to questions to the jury venire concerning the absence of scientific evidence in the s case and have cautioned that s Commonwealth v. Gray, 465 Mass. at 339, 990 N.E.2d 528. We have declined to conclude, however, that posing such questions amounted to an abuse of discretion in circumstances where the questions, construed with the judges instructions on the Id. at 341, 990 N.E.2d 528. See Commonwealth v. Perez, 460 Mass. at 691, 954 N.E.2d 1. Also, in determining whether an abuse of discretion had arisen, we considered whether the questions committed the jurors who were predisposed to convicting the defendant based on Id. These considerations are instructive here. In this case, the questions were not necessary, particularly in view of the standard jury instructions on direct and circumstantial evidence. The judge, however, did not abuse her discretion in posing them and did not violate s constitutional rights. The questions did not amount to a command to ignore the lack of eyewitness testimony and to overlook the fact that the Commonwealth had not marshaled direct evidence of the s guilt. Rather, the questions sought to ensure that the jury would be able to convict where the Commonwealth proved its case beyond a reasonable doubt with circumstantial evidence, and that the nature of the type of evidence presented in the case would not prevent the jury from fai s case.*

* Although we conclude that there was no abuse of discretion or constitutional violation in this case, we discourage the practice of posing the type of question challenged here, as many cases hinge on circumstantial evidence alone and the standard jury instructions cover the issue. In the rare case that inquiry must be made of a potential juror on the subject, the appropriate question that the judge should ask is whether the juror is willing to follow an instruction that guilt may be established by circumstantial evidence if proved beyond a reasonable doubt. See Commonwealth v. Colon Cruz, 408 Mass. 533, 556, 562 N.E.2d 797 (1990) (judge correctly instructed to jury that circumstantial evidence is not Commonwealth v. Cinelli, 389 Mass. 197, 203 n. 9, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983), and cases cited (circumstantial evidence alone may suffice to establish guilt beyond reasonable doubt). Also, simply because a member of the jury venire answers that he or she is capable of returning a guilty verdict in the absence of eyewitness testimony does not mean that he or she will necessarily do so. Finally, the questions did not skew the jury that ultimately were selected toward conviction. The judge properly instructed the jury about the differences between direct and circumstantial evidence s case was based solely on circumstantial evidence was for the jury to decide, and that whether the evidence is direct or circumstantial, the Commonwealth must prove the defendant guilty beyond a reasonable doubt from all of the evidence in the case. See Commonwealth v. Pires, 389 Mass. 657, 664, 451 N.E.2d 1155 (1983); Commonwealth v. Liakos, 12 Mass.App.Ct. 57, 60, 421 N.E.2d 486 (1981). The jury a s instructions. Commonwealth v. Gonzalez, 465 Mass. 672, 681, 991 N.E.2d 1036 (2013). Andrade, 468 Mass. at 547-49, 11 N.E.3d at 601-03. Following the affirmance of his conviction by the SJC, Andrade filed the instant timely habeas petition pursuant to 28 U.S.C. § 2254.

Additional facts will be provided below where appropriate.

III. ANALYSIS A. Standard of Review Habeas Petition Generally The standard of review to be applied to habeas corpus petition is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court pro U.S.C. § 2254(d). Lucien v. Spencer, 871 F.3d 117, 122 (1st Cir. 2017) (citation omitted). Andrade argues that the SJC decision was an unreasonable application of clearly established law and was based on an unreasonable determination of facts.

In undertaking its supported . . . ion; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a Wetzel v. Lambert, 565 U.S. 520, 524, 132 S. Ct. 1195, 1198, 182 L. Ed. 2d 35 (2012) (quoting Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011)) [the Supreme] Court decisions. Howes v. Fields,

565 U.S. 499, 505, 132 S. Ct. 1181, 1187, 182 L. Ed. 2d 17 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000)). court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it

decides a case differently than [the Supreme Court has] done on a set of materially indistin- Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850, 152 L. Ed. 2d 914 court correctly identifies the governing legal principle from [Supreme Court] decisions but

unreason Id. An unreasonable application is McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (citation omitted); accord Bell,

great enough to make the decision unreasonable in the independent and objective judgment of Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011) (quoting McCambridge, 303 Hensley v. Roden, 755 F.3d 724, 731 (1st Cir. 2014) (citation omitted).

Finally, as mandated by 28 U.S.C. § 2254(e)(1) presumed to be correct unless the petitioner rebuts the presumption with clear and convincing

correctness applies to factu Id. (citing Clements v. Clarke, 592 F.3d 45, 47 (1st Cir. 2010)). As detailed below, this court

concludes that the state court was neither an unreasonable application of federal law, nor was the decision based on an unreasonable determination of the facts.

B. Procedural Default been procedurally defaulted since there was no objection to the questions posed by the trial

judge. See Resp. Mem. (Docket No. 26) at 8-10. Consequently, the Respondent argues, this court should not review the habeas claim on the merits, since it was decided by the state court on an independent ground (the lack of objection). For the reasons detailed herein, however, this court concludes that the SJC addressed the merits o absence of any contemporaneous objection, and, therefore, there is no procedural bar to the

habeas court reachin . -law default prevents the state court from reaching the merits of a federal Ylst v. Nunnemaker, 501 U.S. in state court is an independent and adequate state-law ground barring habeas relief, . . . so long as the state regularly follows the rule and has not waived it by relying on some other Jewett v. Brady, 634 F.3d 67, 76 (1st Cir. 2011) (internal citations omitted). Under Massachusetts law, Gunter v. Maloney, 291 F.3d 74, 78-79 (1st Cir. 2002). See Hodge v. Mendonsa, 739 F.3d 34, 44

We have held, with a regularity bordering on the monotonous, that the Massachusetts requirement for contemporaneous objections is an independent and adequate Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010))). It is also firmly

- does not in and of itself constitute a decision on the merits. Lynch v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006) (quoting Horton v. Allen, 370 F.3d 75, 81 (1st Cir.


On the other hand, the state court may waive a procedural default and elect to resolve a claim on the merits, even despite the lack of objection below. See Jackson v. Amaral, 729 F.2d 41, 44-45 (1st Cir. 1984), and cases cited. particular federal claim reaches the merits, it removes any bar to federal court review that

Phoenix v. Matesanz, 189 F.3d 20, 25-26 (1st Cir. 1999) (quoting Ylst v. Nunnemaker, 501 U.S. at 801, 111 S. Ct. at 2593). See also Lee v. Corsini, 777 F.3d 46, 55 (1st Cir. 2015) (habeas review available when there has been a resolution of a claim on the merits by the s ; Clarke v. Spencer, 582 F.3d 135, 143-44 (1st Cir. on the merits, despite lack of objection at trial, there was no bar to federal habeas review), and cases cited.

examination. Andrade, 486 Mass. at 547, 11 N.E.3d at 601 (citing Commonwealth v. Gray, 465

Mass. 330, 338, 990 N.E.2d 528, 536 (2013)). The Court then did, in fact, proceed to address claims. Andrade, 486 Mass. at 547-49, 11 N.E.3d at 601-03. As the SJC made clear, the fact that the defendant did not object during trial would be relevant only if it found an abuse of discretion, at which time it would determine if the abuse resulted in a substantial likelihood of a miscarriage of justice. Id. at 547, 11 N.E.3d at 601. That stage was not reached, however, since the SJC concluded that there had been no abuse of discretion. See id. at 548-49, 11 N.E.3d at 602-03. Since the SJC addresse constitutional claim, there is no bar to federal habeas review on the grounds of procedural default.

C. Standard of Review: Selection of an Impartial Jury As the SJC recognized, the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial by an impartial jury. Andrade, 468 Mass. at 547, 11 N.E.3d at 601-02. See Morgan v. Illinois, 504 U.S. 719, 726-27, 112 S. Ct. 2222, 2228-29, 119 L. Ed. 2d 492 (1992). his duties as a juror in accordance with his Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 rtiality is not a technical concept. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure Dennis v. United States, 339 U.S. 162, 172, 70 S. Ct. 519, 523, 94 L. Ed. 734 (1950) (internal quotation omitted). voir dire to

Morgan v. Illinois, 504 U.S. at 729, 112 S. Ct. at 2230. In connec- tion with seating an impartial jury in deciding what questions should be asked on voir dire , 500 U.S. 415, 424, 111 S. Ct. 1899, 1904, 114 L. Ed. 2d 493 (1991).

Even on direct re cause is granted considerable deference. See Wainwright v. Witt, 469 U.S. at 424-46, 105 S. Ct.

at 852-53. demeanor of the venire, and of the individuals who compose it, a factor of critical importance

in assessing the attitude and qualifications of potential juro Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 2224, 167 L. Ed. 2d 1014 (2007). Thus, applying some kind of legal standard to what [she] sees and hears, . . . [her] predominant

function in determining juror bias involves credibility findings whose basis cannot be easily Wainwright v. Witt, 469 U.S. at 429, 105 S. Ct. at 855. In the context of a habeas review, the determination of juror bias is considered to be a factual determination that is entitled to a presumption of correctness under 28 U.S.C. § 2254. Id. at 430, 105 S. Ct. at 855; Darden v. Wainwright, 477 U.S. 168, 175, 106 S. Ct. 2464, 2469, 91 L. Ed. 2d 144 (1986). 5

See also Patton v. Yount, 467 U.S. 1025, 1036, 104 S. Ct. 2885, 2891, 81 L. Ed. 2d 847 (1984) (in the habeas context, the partiality of a juror is a question of fact, not a mixed question of law and fact). Consequently, federal habeas review of an objection to the trial White v. Wheeler, 136 S. Ct. 456, 460, 193 L. Ed. 2d 384 (2015) (internal quotation omitted). excuse jurors for cause was

Id. at 461 (internal

quotation omitted). As detailed more fully below, applying these standards compels the

D. State Court Decisions to elicit information consistent with the standard established by federal law, namely whether the juror from performing his or her obligations as a juror in accordance with the instructions of the

judge and his or her oath as a juror. See Adams v. Texas, 448 U.S. at 45, 100 S. Ct. at 2526. Similarly, the SJC applied the appropriate standard when it recognized that the trial judge had to n opinions, properly weigh the evidence

5 As detailed below, Andrade contends that the findings made in the instant case are not entitled to deference since the trial judge did not follow the appropriate procedure in selecting the jury. This court disagrees. Andrade, 468 Mass. at 547-48, 11 N.E.3d at 602 (internal punctuation and citation omitted). Nevertheless, Andrade contends that the state decision was based on an unreasonable application of federal law, and that the decision that the jurors should be excused was an unreasonable determination of fact. In evaluating the state court rulings, this court must examine the context surrounding the decisions to exclude the potential jurors. See Darden v. Wainwright, 477 U.S. at 176, 106 S. Ct. at 2469. A review of were appropriately upheld by the SJC. Wainwright v. Witt tion is not whether a reviewing

Here the trial judge questioned the potential jurors individually, and in the presence of counsel. As noted above, defense counsel helped formulate the initial questions. There was also no objection by counsel when the trial judge rephrased the question because it was too clumsy as initially posed. SA II:188. The judge and counsel had the opportunity to view each potential esponse to the questions posed, and to assess their demeanor. Many of the prospective jurors unequivocally answered that the potential reliance on circumstantial evidence only would not impair their ability to perform their duties as jurors, and that they answers of the 13 potential jurors at issue here, some of which were unequivocal in that they

reflected a certainty that they could not convict absent eyewitness testimony, and others of which were more equivocal so that the trial judge was called upon to consider their answers to other questions and their demeanor in order to determine if the juror should be excused for cause. Reviewing the entire jury selection process, this court cannot conclude that there was See White v. Wheeler, 136 S. Ct. at 461- uror did not violate beyond any possibility for fair )

e jurors for cause. The record reflects, however, that counsel were given the opportunity to communicate with the judge if they so desired, and that they took the opportunity to do so in other contexts. See, e.g., SA II:258-62 (issue whether potential juror understood English sufficiently both counsel agreed to excuse); SA III:383-85 (Commonwealth asks for potential juror to be called back for further questioning). The reviewing court may appropriately consider the absence of an objection in assessing a decision to excuse a juror for cause, even though an objection may not be necessary to preserve the issue for appeal. Uttecht v. Brown, o, or conscientious trial judge an opportunity to explain his judgement or correct any error. It also

deprived reviewing courts of further factual findings that would have helped to explain the trial fulfill his or her obligation to be impartial.

of the answers were ambiguous is equally unavailing. Again, in the courtroom questioned the fact that [the potential from sitting. The reasons for this, although not crystal clear from the printed record, may well have been readily apparent to those viewing [the potential jurors as they] answered the Wainwright v. Witt, 469 U.S. at 435, 105 S. Ct. at 857-58. Moreover, ambiguity in Patton v. Yount, 467 U.S. at

1040, 104 S. Ct. at 2893. Finally, White v. Wheeler, 136 S. Ct. at 461 (internal quotations omitted). Viewing the jury selection

process in context, there is no evidence that the trial judge abused her discretion in excusing

application of, clearly establishe Uttecht v. Brown, 551 U.S. at 20, 127 S. Ct. at 2230.

Andrade contends that his constitutional rights were violated because the trial judge

unbiased. Pet. Mem. at 8. Thus, Andrade contends that the trial judge violated his constitu- tional rights by not following up with the jurors to determine if they could nevertheless put aside their concerns and follow the law as instructed by the trial judge. See id. at 31. Not only does this argument misconstrue the questions posed to the potential jurors, but it seeks to impose a requirement not found in federal law.

Andrade relies on a line of cases addressing the disqualification of jurors in death penalty cases. For example, in Adams v. Texas, the questions posed to potential jurors Adams v. Texas, 448 U.S.

at 50-51, 100 S. Ct. at 2529. those whose beliefs about capital punishment would lead them to ignore the law or violate

they will honestly find the facts and answer the questions in the affirmative if they are

convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or Id. at 50, 100 S. Ct. at 2529. Thus, the appropriate question to be asked is whether the jurors would be able to follow the law, regardless of their position on the death penalty. See Darden v. Wainwright, 477 U.S. at 168- 69, 106 S. Ct. at prevent or substantially impair the performance of his duties as a juror in accordance with his

As an initial matter, it must be noted that this case is not a death penalty case and does Lockhart v. McCree, 476 U.S. 162, 183, 106 S. Ct. 1758, 1770, 90 L. Ed. 2d 137 (1986). Moreover, the proposed jurors here were prevent the juror from finding the defendant guilty, even if the Commonwealth could otherwise

guilt. Answers to the effect Lockett v. Ohio, 438 U.S. 586, 596, 98 S. Ct. 2954, 2960, 57 L. Ed. 2d 973 (1978) (quoting Boulden v. Holman, 394 U.S. 478, 484, 89 S. Ct. 1138, 1142, 22 L. Ed. 2d 433 (1969)). o further inquiry is required. Id. The trial Uttecht v.

Brown, 551 U.S. at 7, 127 S. Ct. at 2223. rial judge is left with the definite impres- sion that a prospective juror would be unable to faithfully and impartially apply the law[,] appropriate for the judge to strike the juror, and the reviewing court must defer to the trial Wainwright v. Witt, 469 U.S. at 425-26, 105 S. Ct. at 852-53.

Andrade argues that the deferential AEDPA standard of review is inapplicable in the

the essent Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007) on an antecedent unreasonable application of federal law, the requirement set forth in

§ 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference of ). Andrade relies on Sanchez v. Roden, 753 F.3d 279, 300 (1st Cir. 2014), where the First Circuit concluded that the state court had unreasonably applied clearly established federal law because it failed to inquire into all of the facts and circumstances ith the selection of his jury. In that context, however, upon the issue of racial animosity must be cons Id. at 299 (internal quotations omitted). tions complied with federal law, and there was no of mind any further. The deferential standard of the AEDPA, as well as a review of the context

Finally, Andrade argues that by asking a second question about circumstantial evidence, the trial court coerced the jury into a guilty verdict. As the SJC found, the trial judge did not command the jury to convict, nor did she instruct the jury to ignore the fact that the Common- wealth had no direct evidence of Andrade, 468 Mass. at 548-49, 11 N.E.3d at 602-

case was based solely on circumstantial evidence was for the jury to decide, and that whether the evidence is direct or circumstantial, the Commonwealth must prove the defendant guilty Id. at 549, 11 N.E.3d at 603. Th predisposed to convicting the defendant based on the evidence the Commonwealth would

is not contrary to or an unreasonable application of clearly established federal law. See id. at 547, 11 N.E.3d at 601.

In Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), a deliberating jury had been polled as to whether further deliberation would enable them to reach a verdict, and was then given a supplemental instruction about deliberating. Soon thereafter, the jury returned a verdict sentencing the defendant to death. Id. at 234-35, 108 S. Ct. at 549. The defendant brought a habeas petition in federal court raising the issue whether the trial judge had coerced the sentence from the jury. Id. at 236, 108 S. Ct. at 550. Without discussing the constitutional basis for Id. at 237, 108 S. Ct. at 550 (citation omitted).

- mental charges and polling might not require a different conclusion. Any criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of Id. at 241, 108 S. Ct. 552.

would support a habeas petition. Clements v. Clarke, 592 F.3d 45, 57 (1st Cir. 2010). As the

Lowenfield does constitute clearly established federal law, that law can be summarized as follows: defendants have a right against coerced jury verdicts, and any potential coercion should be measured based on the totality of the Id. totality-of-the-circumstances test, to the extent that it constitutes clearly established federal law to begin with, allows for a great deal of Id. In the instant case, the SJC applied the correct standard and analyzed the trial the totality of the circumstances. Andrade, 468 Mass. at 548- 49, 11 N.E.3d at 602-03.

The circumstantial evidence constituted two of four questions propounded to jurors individually

which could lead to recusal for cause. See note 2, supra. The questions were not unduly emphasized. After the jury was selected, but before any opening statements, instructions stressed that the defendant was presumed innocent and that the Commonwealth had the burden of proving his guilt beyond a reasonable doubt. SA III:400-01. There was no mention of the significance of direct or circumstantial evidence at any time during the trial 0-409. In her jury charge, the trial judge gave the standard instructions regarding the difference between direct and circumstantial evidence, and

circumstantial, the Commonwealth must prove the defendant guilty beyond a reasonable

doubt from all of Id. In addition, she instructed the jury that it was up to them to determine if the case was based solely on circumstantial evidence. Id. The initial questioning during voir dire about a case based only on circumstantial evidence did not coerce the jury into a guilty verdict.

IV. CONCLUSION For all the reasons detailed herein, this court concludes that the s was not an unreasonable application of clearly established federal law, nor did it result in a

decision that was based on an unreasonable determination of the facts. Therefore, this court writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED. 6

/ s / Judith Gail Dein Judith Gail Dein United States Magistrate Judge

6 The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the partys receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Secy of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-05 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S. Ct. 466, 474, 88 L. Ed. 2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).

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