Brown v. Medeiros

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

TERRENCE BROWN, )

)

Petitioner, )

)

v. ) Civil No. 18-10181-LTS

)

SEAN MEDEIROS, )

)

Respondent. )

)

MEMORANDUM AND ORDER ON PETITION

FOR WRIT OF HABEAS CORPUS (DOC. NO. 1)

July 26, 2018

SOROKIN, J.

Terrence Brown, a prisoner at the Massachusetts Correctional Institution in Norfolk,

Massachusetts, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He

claims his trial counsel was ineffective for providing incorrect legal advice, causing Brown to

reject a favorable plea offer. Because Brown’s claim is procedurally defaulted (and, in any

event, meritless), the petition is DISMISSED.

I. BACKGROUND

On July 25, 2006, a Suffolk County jury convicted Brown of two counts of first-degree

murder and related charges in connection with the shooting deaths of two victims during a

botched armed robbery. Commonwealth v. Rivera, 981 N.E.2d 171, 176 (Mass. 2013), cert.

denied, 570 U.S. 907 (2013);1 Doc. No. 1 at 1-2;2 Doc. No. 1-1 at 1; S.A. at 1-2, 12-13.3 The

Supreme Judicial Court (“SJC”) has extensively recounted “the facts the jury could have found”

at Brown’s trial. Rivera, 981 N.E.2d at 176-79. The following summary of those facts are

relevant for present purposes:

On August 10, 2001, [Brown] and . . . Rivera went to the [victims’] apartment . . .

in the South End section of Boston. They both arrived at the door wearing dust

masks and carrying firearms. . . . After they forced their way into the apartment,

[Brown] bound the occupant[s’] ankles and wrists with duct tape. The defendants

then searched the apartment for drugs and money, but did not find what they were

looking for. . . . Rivera shot [one victim] six times in the head, and shot [the other

victim] once in the head. He also attempted to shoot [a third occupant], but had run

out of ammunition. [Brown] and Rivera then left the apartment. [The surviving

occupant] freed himself from the duct tape, . . . and telephoned 911.

. . . [Brown’s] thumbprint had been found on a piece of duct tape that had been used

to bind one of the victims. . . . When initially confronted with the fingerprint

evidence by investigating officers, [Brown] admitted to having been present when

the men forced their way into the apartment, and to having bound the victims with

duct tape; he denied having been in the apartment when [Rivera] shot the victims.4

Doc. No. 1-1 at 2-3 (citations and a footnote omitted).

A pretrial motion to suppress Brown’s statements to police was unsuccessful. Id. at 3-4.

Sometime before trial, the Commonwealth offered to allow Brown to plead guilty to second-

degree murder, and to recommend a sentence including parole eligibility after fifteen years, in

exchange for Brown testifying against Rivera. Id. at 4. Brown’s trial counsel—a seasoned

criminal defense attorney—“repeatedly urged [Brown] to accept the plea arrangement.” Id.;

1 Brown was tried with his alleged co-venturer, Nathan Rivera, who also was convicted of first-

degree murder and other charges. Rivera, 981 N.E.2d at 176.

2 Citations to documents on the Court’s electronic docket reference the assigned docket number

and the page number from the ECF header at the top of each page.

3 The respondent has filed a Supplemental Answer (“S.A.”) containing the state-court record in

three bound volumes. Doc. Nos. 15, 17.

4 Here, the single justice includes a footnote stating: “According to [Brown], he left the

apartment after binding the victims, and waited for Rivera outside, in a parked vehicle, where

Rivera appeared ‘a few minutes’ later.” Doc. No. 1-1 at 3 n.3.

Doc. No. 1-2 at 3-4. He even enlisted the help of another lawyer, someone with connections to

Brown and his family, “to attempt to persuade [Brown] to accept what trial counsel viewed as a

‘reasonable’ plea arrangement ‘under the circumstances.’” Doc. No. 1-1 at 4.

Despite trial counsel’s consistent and emphatic recommendation, Brown “asked . . .

whether there was a way to ‘beat’ the [murder] charges altogether, because he had not shot

anyone.” Id. Trial counsel told Brown

that the only possible defense, given [Brown’s] statement [to police], was to claim

that he had withdrawn from the joint enterprise prior to the shooting. Counsel

cautioned, however, that he viewed the chance of acquittal on this theory as very

slim, warning [Brown] that juries do not like withdrawal defenses, such a defense

was “weak,” and the evidence against him was strong.

Id. at 4-5. Against trial counsel’s advice, Brown rejected the plea and “insisted on a trial.” Id. at

5. “At trial, counsel vigorously pursued a defense of withdrawal,” beginning in his opening

statement and continuing through his closing argument; at his request, the trial judge included a

withdrawal instruction in his closing charge to the jury. Id.

As trial counsel had predicted, the defense was unsuccessful, and Brown was convicted

of first-degree murder “on a theory of joint-venture felony-murder.” Id. He received a

mandatory sentence of life imprisonment without the possibility of parole. Doc. No. 1 at 1;

Mass. Gen. Laws ch. 265, § 2(a).

Brown filed a timely direct appeal, challenging the admission of a redacted version of his

statement to police and the trial court’s instruction regarding withdrawal from a joint venture.

S.A. at 13, 47-48. The SJC affirmed Brown’s conviction and sentence on January 9, 2013.

Rivera, 981 N.E.2d at 171, 176; S.A. at 15, 21. In rejecting Brown’s challenge to the withdrawal

instruction, the SJC reasoned that “the evidence in this case was insufficient to warrant an

instruction on withdrawal,” as “there was no evidence to suggest that Brown communicated to

Rivera any intent to withdraw,” nor “evidence of an ‘appreciable interval’ between [Brown’s]

alleged withdrawal and the murders.” Rivera, 981 N.E.2d at 187-88.

The SJC denied rehearing, and the United States Supreme Court denied certiorari. S.A.

at 21. Meanwhile, Brown filed a pro se motion for a new trial in the Superior Court, challenging

trial counsel’s effectiveness in connection with Brown’s rejection of the pretrial plea offer. S.A.

at 15, 191, 194. Brown attributed the following statements to trial counsel: “the murder charges

could be beat with a withdrawal defense,” and “I advise you not to accept the Commonwealth’s

plea offer.” S.A. at 195. But for this advice, Brown wrote, he would have pled guilty. S.A. at

207. The motion court appointed counsel to represent Brown and scheduled an evidentiary

hearing. S.A. at 16.

At the hearing, trial counsel and Brown each testified about their conversations regarding

the plea offer and Brown’s decision to reject it. S.A. at 311-70. Ultimately, the motion court

rejected Brown’s claim. See generally Doc. No. 1-2. The motion court “credit[ed] in its entirety

the testimony of” trial counsel, which it described as “clear and unequivocal” with respect to “the

strength of the Commonwealth’s case, the negotiations with the prosecutor regarding a possible

plea agreement, and his advice and counsel to the defendant.” Id. at 3 & n.4. The motion court

also emphasized that Brown had “acknowledged that his affidavit falsely asserted that [trial

counsel] advised him not to accept the Commonwealth’s plea offer”—in other words, the critical

allegation which formed the basis for the motion court’s decision to hold an evidentiary hearing

in the first instance had been a lie. Id. at 1, 5.

Brown sought review of the motion judge’s decision, S.A. at 16, 18, but a single justice

of the SJC concluded that Brown’s claims were “neither new nor substantial” and denied his

petition for review, see generally Doc. No. 1-1.

In his timely federal habeas petition, Brown presents to this Court his claim that “[t]rial

counsel provided ineffective assistance when he incorrectly advised Mr. Brown that he had a

legally viable withdrawal defense, resulting in Mr. Brown’s rejecting a plea offer.” Doc. No. 1

at 5. The same attorney appointed to represent Brown during his state-court evidentiary hearing

on this claim continues to represent Brown here.

II. LEGAL STANDARDS

A. Procedural Default

“[A] federal court will not review the merits of claims, including constitutional claims,

that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”

Martinez v. Ryan, 566 U.S. 1, 9 (2012). If, for example, the state’s highest court refuses to

address the merits of a federal claim because of “a state-law ground that ‘is independent of the

federal question and adequate to support the judgment,’” that claim is procedurally defaulted and

barred from review by a federal habeas court. Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting

Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The procedural default rule is meant “to

ensure that state-court judgments are accorded the finality and respect necessary to preserve the

integrity of legal proceedings within our system of federalism.” Martinez, 566 U.S. at 9.

A petitioner may obtain review of defaulted claims only if he can “demonstrate cause for

the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate

that failure to consider the[] claims will result in a fundamental miscarriage of justice.”

Coleman, 501 U.S. at 750. To demonstrate cause sufficient to excuse default, a petitioner must

prove “some objective factor external to the defense impeded counsel’s [or petitioner’s] efforts

to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To

establish “actual prejudice,” a petitioner must demonstrate that the alleged errors “worked to his

actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” United States v. Frady, 456 U.S. 152, 168 (1982). If a petitioner seeks to establish

a “fundamental miscarriage of justice” instead, he must demonstrate “actual innocence.” Schlup

v. Delo, 513 U.S. 298, 324 (1995); Janosky v. St. Amand, 594 F.3d 39, 46 (1st Cir. 2010).

B. General Habeas Review

Even if there is no procedural bar to a federal court reviewing the merits of a habeas

petitioner’s claim, the standard for federal habeas relief is “difficult to meet,” with the petitioner

carrying a heavy burden of proof. Harrington v. Richter, 562 U.S. 86, 102 (2011); accord Cullen

v. Pinholster, 563 U.S. 170, 181 (2011); see Burt v. Titlow, 571 U.S. 12, 19-20 (2013)

(emphasizing the “formidable barrier” faced by federal habeas petitioner where claims already

were adjudicated in state court, and limiting relief to cases of “extreme malfunctions” by state

criminal justice systems). Federal district courts may not grant a writ of habeas corpus unless

they find that the state court’s adjudication of the petitioner’s claims “(1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States[,] 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 proceeding.” 28 U.S.C. § 2254(d).

A ruling is “contrary to” clearly established Supreme Court precedent “if the state court

applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or “if the

state court confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). A decision constitutes an “unreasonable application” of

Supreme Court precedent if the state court identifies the correct governing legal rule, but

“unreasonably applies it to the facts of the particular state prisoner’s case.” Williams, 529 U.S.

at 407-08. This standard is not satisfied where a state court decides not “to apply a specific legal

rule that has not been squarely established by” the Supreme Court. Knowles v. Mirzayance, 556

U.S. 111, 122 (2009). “The more general the rule, the more leeway courts have in reaching

outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

If a state court’s decision “was reasonable, it cannot be disturbed” under § 2254(d).

Hardy v. Cross, 565 U.S. 65, 72 (2011) (per curiam). A showing of clear error is not sufficient

for a habeas petitioner to establish entitlement to relief. Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003). Relief is available only where a state court’s “determination was unreasonable – a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); accord Brown

v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011); see also Richter, 562 U.S. at 103 (requiring a

petitioner to “show that the state court’s ruling . . . was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement”). To succeed, then, a petitioner must show that the state court’s

rejection of his claim was “so offensive to existing precedent, so devoid of record support, or so

arbitrary, as to indicate that it is outside the universe of plausible, credible options.” Sanna v.

Dipaolo, 265 F.3d 1, 13 (1st Cir. 2001) (quotation marks omitted).

A state court’s determination of the facts, in light of the evidence before it, “is not

unreasonable merely because [a] federal habeas court would have reached a different conclusion

in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds

reviewing the record might disagree” about a challenged factual determination, “on habeas

review that does not suffice to supersede the [state] court’s . . . determination.” Rice v. Collins,

546 U.S. 333, 341-42 (2006). If there is “evidence in the state-court record [that] can fairly be

read to support the [state] court’s factual determination,” relief under § 2254(d)(2) generally is

not warranted. Wood, 558 U.S. at 301-02.

Federal courts ordinarily must presume that the state court’s factual findings are correct,

unless the petitioner offers clear and convincing evidence to the contrary. § 2254(e)(1); Miller-

El v. Cockrell, 537 U.S. 322, 340-41 (2003); Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)

(discussing the “separate and exacting standard applicable to review of a state court’s factual

findings”).5

C. Ineffectiveness of Counsel

Strickland v. Washington, 466 U.S. 668 (1984), provides the “clearly established federal

law governing” a claim that trial counsel was constitutionally ineffective. Jewett v. Brady, 634

F.3d 67, 75 (1st Cir. 2011). To satisfy Strickland’s two-part test, “[f]irst, the defendant must

show counsel’s performance was deficient,” which requires showing “counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth

Amendment.” 466 U.S. at 687. “Second, the defendant must show the deficient performance

prejudiced the defense.” Id. This test applies not only to challenges to counsel’s decisions and

actions in the context of a trial, but also to challenges to counsel’s representation during plea

negotiations. Hill v. Lockhart, 474 U.S. 52, 58 (1985); accord Lafler v. Cooper, 566 U.S. 156,

162-63 (2012).

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.

356, 371 (2010); accord Richter, 562 U.S. at 105. This is especially so because habeas review of

counsel ineffectiveness claims is subject to a “‘doubly deferential’ standard of review that gives

5 Neither the First Circuit nor the Supreme Court have defined the contours of the relationship

between the presumption described in § 2254(e)(1) and the standard for relief described in

§ 2254(d)(2), but this Court need not parse that distinction in this case.

both the state court and the defense attorney the benefit of the doubt.” Titlow, 571 U.S. at 15

(quoting Pinholster, 563 U.S. at 190). In this context, the “pivotal question” is not whether the

petitioner has met the Strickland standard in the first instance, but whether “fairminded jurists

would all agree that the [state court’s] decision [that he has not met it] was unreasonable.”

Jewett, 634 F.3d at 75 (quotation marks omitted); accord Richter, 562 U.S. at 101.

Counsel’s performance is measured objectively, considering only what is “reasonable[]

under prevailing professional norms.” Strickland, 466 U.S. at 687-88; accord Premo v. Moore,

562 U.S. 115, 122 (2011). Federal courts must be “highly deferential” and “indulge a strong

presumption” that counsel’s challenged actions might be considered sound strategy under the

circumstances. Strickland, 466 U.S. at 689; accord Mirzayance, 556 U.S. at 124. “It is ‘[r]are’

that constitutionally competent representation will require ‘any one technique or approach.’”

Pinholster, 563 U.S. at 195 (quoting Richter, 562 U.S. at 106). The Supreme Court has

suggested that similar deference is owed to counsel’s tactics and conduct during the plea

bargaining process. See Missouri v. Frye, 566 U.S. 134, 145 (2012) (describing that process as

one “defined to a substantial degree by personal style” and, thus, not amenable to judicially

defined “detailed standards”).

To establish prejudice, a defendant must demonstrate “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694; accord Mirzayance, 556 U.S. at 127. When the claimed error arises in the plea

bargaining context, the prejudice prong requires a defendant to “show that but for the ineffective

advice of counsel there is a reasonable probability that the plea offer would have been” accepted

by the defendant and the court, and that as a result the defendant would have received a less

severe conviction or sentence (or both). Lafler, 566 U.S. at 164.

III. DISCUSSION

A. Procedural Default6

In Massachusetts, defendants convicted of first-degree murder are entitled to plenary

review of both legal and factual issues on direct appeal to the SJC. Mass. Gen. Laws ch. 278,

§ 33E; accord Lee v. Corsini, 777 F.3d 46, 55 (1st Cir. 2015). This broad direct review is

balanced by a rule limiting post-conviction review by the SJC after it affirms a first-degree

murder conviction, notwithstanding a defendant’s right under Massachusetts law to file unlimited

motions for a new trial in the Superior Court. § 33E; accord Lee, 777 F.3d at 55. Only if a

single “gatekeeper” justice determines that an appeal from the denial of subsequent motion for a

new trial “presents a new and substantial question,” or that the appeal implicates “a substantial

risk of a miscarriage of justice,” will a second, post-affirmance review by the full SJC be

undertaken. § 33E; accord Jewett v. Brady, 634 F.3d 67, 76 (1st Cir. 2011).

A “single justice’s determination that an issue is not ‘new’ within the meaning of § 33E is

tantamount to a finding of procedural default, the classic example of an independent and

adequate state ground.” Lee, 777 F.3d at 55 (quotation marks omitted); accord Mendes v. Brady,

656 F.3d 126, 128-30 (1st Cir. 2011). “[A] procedural bar ruling” such as that “must stand in all

but exceptional circumstances.” Hodge v. Mendonsa, 739 F.3d 34, 44 (1st Cir. 2013); see Lee v.

Kemna, 534 U.S. 362, 376 (2002) (discussing “exceptional cases in which exorbitant application

of a generally sound rule renders the state ground inadequate”).

6 Because “[i]t is customary to address the procedural default issue on habeas first, . . . even

when the likely affirmance on the ultimate question . . . uphold[s] the state court judgment,” that

is the analytical approach this Court will apply here. Lynch v. Ficco, 438 F.3d 35, 46 n.10 (1st

Cir. 2006).

Here, the single justice concluded Brown’s claim was not “new,” as “the state of the

evidence, and trial counsel’s advice to the defendant, were both known when the defendant filed

his direct appeal, and the question of ineffectiveness could have been argued in that appeal.”

Doc. No. 1-1 at 9. Careful review of both parties’ submissions, including the record of all

pertinent state court proceedings, reveals nothing about the single justice’s conclusion or the

underlying facts of this case which even remotely approaches the sort of exceptional

circumstances required to justify a federal habeas court taking the rare step of “upset[ting] the

[state court’s] procedural default holding.” Hodge, 739 F.3d at 44.

At all relevant times, Brown knew what he believed trial counsel had advised him and

how that advice impacted his decision with respect to the plea offer.7 Nothing prevented him

from explaining that information to his appellate counsel or presenting it to the SJC on direct

review. That his conversations with trial counsel were privileged does not mean Brown himself

could not have disclosed the substance of those conversations to support a challenge to trial

counsel’s effectiveness on direct appeal (as he has done now). And, as the First Circuit

explained in upholding a finding of procedural default on facts directly analogous to those

presented here, to the extent Brown’s challenge to trial counsel’s effectiveness relied on facts

beyond the existing trial record, § 33E “authoriz[es] filing a new trial motion in the [SJC] while a

direct appeal is lodged there, with an opportunity to make a supplementary record to support it.”

Mendes v. Brady, 656 F.3d 126, 130 (1st Cir. 2011) (Souter, J.).

7 He also plainly knew, as did his appellate counsel, that the withdrawal defense trial counsel

presented at trial had not succeeded. Instead of challenging trial counsel’s pursuit of such a

defense, Brown’s direct appeal asserted that the trial court’s legal instruction explaining

withdrawal unfairly allocated to him a burden of persuasion. S.A. at 42.

Because Brown has provided “no sound reason” not to “accept the adequacy and

independence of the [SJC’s] application of the new-and-substantial rule to [his] ineffective

assistance claim,” the state court’s procedural bar ruling stands. Accordingly, Brown’s federal

claim is procedurally defaulted and subject to dismissal.8

B. Merits

Even if the single justice’s finding that Brown’s claim is not “new” were not a bar to this

Court’s review, his petition would fare no better on its merits. Both the motion court and the

single justice concluded the record did not support Brown’s assertion of ineffectiveness, as it

established trial counsel repeatedly and unambiguously urged Brown to accept the plea offer, and

provided a competent and accurate assessment of the likelihood that Brown would be convicted

of first-degree murder if he elected to proceed to trial. See Doc. No. 1-1 at 8-10 (assessing the

merits in the context of its conclusion that Brown’s claim was not “substantial”); Doc. No. 1-2 at

10 (rejecting Brown’s claim on its merits).

These conclusions were neither contrary to, nor an unreasonable application of,

Strickland, Lafler, or Frye, nor did they rest on unreasonable determinations of the facts. It

simply cannot be the case that a criminal defense lawyer, faced with a client who “vehemently”

insists on rejecting what he has urged is a favorable plea offer, Doc. No. 1-2 at 5, renders

constitutionally deficient assistance when he explains the theory of defense he would pursue if

compelled to defend the case at trial and also candidly explains his assessment of the theory’s

weaknesses, the strength of the prosecution’s evidence, and the overwhelming likelihood of

conviction by a jury. Indeed, the Supreme Court has explicitly declined “to elaborate or define

8 Brown has not attempted to show cause for his default, nor could he on the record before this

Court. Likewise, he has not asserted, let alone demonstrated, actual innocence. Accordingly,

there is no basis to excuse his procedural default.

detailed standards for the proper discharge of defense counsel’s” responsibilities in the plea

bargaining process, recognizing that “alternative courses and tactics in negotiation are so

individual that it may be neither prudent nor practicable” to establish such standards. Frye, 566

U.S. at 145. The absence of such clearly established standards is fatal to Brown’s claim.9

IV. CONCLUSION

It makes sense that Brown, with the benefit of hindsight, laments his decision to insist

upon a trial—a decision which ultimately cost him a chance at parole. But Brown’s

understandable regret does not render ineffective trial counsel’s reasonable and correct advice

with respect to the plea offer or his zealous effort to manufacture a defense where there was

none. Because his claim fails on its merits, Brown’s habeas petition is DENIED.10

SO ORDERED.

/s/ Leo T. Sorokin

United States District Judge

9 The SJC’s finding that the trial evidence could not have supported a finding of withdrawal does

not retroactively render trial counsel’s pretrial advice deficient. The record demonstrates that

trial counsel’s advice to Brown was not a promise “that his statement to the police would support

an abandonment defense,” as Brown now claims, Doc. No. 22 at 14 (emphasis added), but rather

a realistic assessment “that the only possible defense consistent with the defendant’s confession”

would be abandonment, as the state courts recounted, Doc. No. 1-2 at 4 (emphasis added).

Nothing about that guidance is legally incorrect. The Constitution does not require an attorney in

the position of Brown’s trial counsel to announce: “I don’t have a trial defense that I can mount

for you,” so “a plea is your only option.” Doc. No. 22 at 23 (quoting the transcript of post-

conviction counsel’s argument at the state court motion hearing). The decision whether to plead

guilty belongs solely to the defendant. If a defendant insists on a trial against his lawyer’s

advice, that lawyer is not only permitted, but ethically and constitutionally required, to zealously

defend his client at trial. And, in the hands of able counsel, armed with a jury instruction making

his theory of defense available to jurors, an acquittal might be “possible,” even if it is

exceedingly unlikely, and even if the defense theory is legally imperfect.

10 As “reasonable jurists” could not “debate whether . . . the petition should have been resolved

in a different manner,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), no certificate of

appealability shall issue. No exceptional circumstances justify setting aside the procedural bar

the state court invoked with respect to Brown’s claim, and, in any event, the record is wholly

devoid of any factual or legal basis for finding Brown’s trial counsel performed deficiently in

advising Brown regarding the plea offer or in any other manner.