384 F.Supp.2d 501 (2005) | Cited 1 time | D. Massachusetts | August 25, 2005


The court has considered the attached Magistrate Judge's Reportand Recommendation that this court dismiss Edward S. O'Brien'sPetition for Writ of Habeas Corpus (the "Report"), and bothpetitioner's and respondent John Marshall's objections to theReport. The Report (Docket No. 27), which is hereby adopted andincorporated in this Memorandum, is persuasive for the reasonsstated by the Magistrate Judge, as amplified below. The petitionis, therefore, being dismissed.

Petitioner asserts three objections to the Report. First, hecontends that, contrary to the conclusion of the MagistrateJudge, the exclusion of certain statements by the murder victimto her neighbor represented an unreasonable application of thelaw established by the Supreme Court in Chambers v.Mississippi, 410 U.S. 284, 302 (1973), and violated his federalconstitutional right to due process. More specifically, the trialcourt excluded evidence that the victim had told a neighbor thatshe had evicted her brother-in-law Aristedes Ortiz from her homefor drug dealing and was in fear of him. While other evidence concerning Ortiz wasadmitted, these statements were excluded by the trial court ashearsay, and the Supreme Judicial Court affirmed that decision.See Commonwealth v. O'Brien, 736 N.E.2d 841, 851 (2000).

With certain exceptions, federal law, like Massachusetts law,deems hearsay to be insufficiently reliable to be admitted intoevidence in a criminal trial. See Fed.R. Evid. 802. Part ofthe excluded evidence, the victim's statement that she fearedOrtiz, might have been admissible in a federal trial pursuant tothe state of mind exception to the hearsay rule. SeeFed.R.Evid. 803(3); United States v. Grassi, 783 F.2d 1572, 1578(11th Cir. 1986). However, the Federal Rules of Evidence are notcoextensive with the requirements of due process. SeeDickerson v. United States, 530 U.S. 428, 437 (2000); UnitedStates v. Sampson, 332 F. Supp. 2d 325, 340-41 (D. Mass. 2004).

The Supreme Judicial Court held that "[t]he judge correctlyexcluded the evidence [of the victim's expression of fear ofOrtiz] as hearsay" under Massachusetts law. O'Brien,736 N.E.2d at 851 (citing Commonwealth v. Mandeville, 436 N.E.2d 912(1982)). This decision did not involve an unreasonableapplication of federal law.

Petitioner does not claim that the Magistrate Judge incorrectlystated the "unreasonable application" of Supreme Court precedentstandard and, in any event, the court finds he did not. See Report at 12-14. As explained in the Report, at 16-20,Chambers involved a court's refusal to permit the petitioner tocross-examine as an adverse witness a person who had confessed tothe murder that the petitioner was charged with committing andits further refusal to allow the petitioner to introduce thetestimony of three witnesses who had heard the confession.Chambers, 410 U.S. at 291-92. Chambers stands for theprinciple that a defendant has a right to call witnesses and toconfront and cross-examine them. Id. at 294. In the instantcase, there is no contention that Ortiz confessed to the murder,that testimony of any such confession was excluded, or that thecourt refused to allow any witness to be called. See Report at19-20. Chambers 410 U.S. at 291-92, 294. Distinguishing theinstant case from Chambers does not represent an unreasonableapplication of a clearly established Supreme Court precedent.See Hurtado v. Tucker, 245 F.3d 7, 15-16 (1st Cir. 2001),cert. denied, 122 S.Ct. 282 (2001).

Second, petitioner asserts that his Fifth Amendment rightagainst self-incrimination was violated because the "transferjudge" who decided that he should be tried as an adult ratherthan as a juvenile drew adverse inferences from petitioner'sunwillingness to participate in available treatment programs.Under Massachusetts law, "[a] transfer hearing is held todetermine whether `the child presents a danger to the public, andwhether the child is amenable to rehabilitation within thejuvenile justice system.'" Commonwealth v. O'Brien, 673 N.E.2d 552, 556 (1996)(quoting G.L. c. 119, 61). "There is a rebuttable presumptionthat a juvenile charged with murder is dangerous to the publicand not amenable to rehabilitation." Id. This imposes on thejuvenile an initial burden of production. Id. "[T]reatmentprograms for pretrial detainees at the juvenile facility where[petitioner] was held are specifically designed to offertreatment while actively discouraging detainees from discussingthe circumstances surrounding their pending charges. "O'Brien,736 N.E.2d at 849.

Petitioner does not contend that the statutory scheme itselfviolates his Fifth Amendment right not to be compelled toincriminate himself. Rather, he asserts that in this case thetransfer judge impermissibly drew adverse inferences from hissilence and the Supreme Judicial Court unreasonably appliedSupreme Court precedent in affirming his decision to do so.

The Supreme Judicial Court explained that: The judge's findings were not based on the defendant's exercise of his right to remain silent, but on the defendant's failure to see any value in any treatment programs. The findings also were based on the defendant's conduct at the facility where he was held and the peer group with which he chose to associate.Id. at 849. Petitioner contends that the foregoing indicatesthat the Supreme Judicial Court unreasonably applied the SupremeCourt's decision in Schmerber v. California, 384 U.S. 757, 761(1966), that the Fifth Amendment "protects an accused . . . from. . . provid[ing] the State with evidence of a testimonial or communicative nature." However, as the Magistrate Judge noted,"the transfer judge, in determining whether the petitioner shouldbe tried as a juvenile or as an adult, had the right to take intoconsideration the actions and behavior of the petitioner." Reportat 24-25. Once again, the petitioner has not shown that themanner in which this was done in this case involved anunreasonable application of clearly established Supreme Courtprecedent. See Hurtado, 245 F.3d at 15-16.

Finally, petitioner argues that his right to substantive dueprocess was violated when, after reversing the first transferjudge who held that petitioner should be tried as a juvenile andfinding that he did not properly respond to a motion for recusal,the Supreme Judicial Court removed him from the case. SeeO'Brien, 736 N.E.2d at 868-9. The Magistrate Judge correctlyconcluded that petitioner had not shown that this decisionresulted from an unreasonable application of federal law, in partbecause "petitioner points to no Supreme Court case standing forthe proposition that removal of a judge presiding over a transferhearing (or any hearing) violates a defendant's due processrights." Report at 27.

The Magistrate Judge, in the interest of completeness, alsonoted that "the [Supreme Judicial Court] did rely on an adequateand independent state ground when it denied the petitioner'sappeal on the issue of the removal of the transfer judge." Id.at 28 n. 7. The respondent asserts that because the Supreme Judicial Courtrelied on an adequate and independent state ground, theMagistrate Judge should not have addressed the merits ofpetitioner's claim concerning the removal of the first transferjudge. This, and respondent's additional objection concerning the"plain statement rule," are not material to the outcome of thiscase. Therefore, they are not being decided.

For the reasons stated in the Report, as amplified in thisMemorandum, O'Brien's Petition for Writ of Habeas Corpus (DocketNo. 1) is hereby DENIED.

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