# Muller v. Goguen

> District Court, D. Massachusetts · June 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10197795

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** June 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
CHRISTIAN MULLER, )
) CIVIL ACTION
Petitioner, )
) NO. 18-40172-TSH
v. )
)
COLETTE GOGUEN, )
)
Respondent. )
______________________________________ )

ORDER AND MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS
(Docket No. 1) & RESPONDENT’S MOTION TO DISMISS (Docket No. 12)

June 25, 2019

HILLMAN, D.J.

On March 14, 2011, a Worcester County jury found Christian Muller (“Petitioner”) guilty
of seven offenses: two counts of first-degree murder, one count of armed assault with intent to
murder, three counts of armed home invasion, one count of unlawful possession of a firearm.
(Docket No. 16, at 9).
On March 31, 2011, Petitioner filed a notice of appeal to the SJC. Id. at 10. Petitioner
argued:
(1) the jury instruction on criminal responsibility and voluntary intoxication was
erroneous because it failed to comply with Commonwealth v. Berry, 457 Mass. 602,
931 N.E.2d 972 (2010), S.C., 466 Mass. 763, 2 N.E.3d 177 (2014), and
Commonwealth v. DiPadova, 460 Mass. 424, 951 N.E.2d 891 (2011); (2) certain
of the jury instructions were fatally flawed; and (3) the prosecutor’s closing
argument was improper.
Commonwealth v. Muller, 477 Mass. 415, 416, 78 N.E.3d 51 (2017). Petitioner sought relief
pursuant to Mass. Gen. Laws ch. 278, § 33E, which permits the SJC to “(a) order a new trial or (b)
direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court
for the imposition of sentence.” The SJC affirmed the convictions and declined to grant relief

pursuant to Section 33E. Id.
On October 22, 2018, Petitioner filed his habeas petition in this Court. (Docket No. 1).
Petitioner alleges the following grounds for relief:
Ground One: the errors in the jury instructions noted by the SJC violated his right
to Due Process by trivializing the burden of proof necessary for a conviction

Ground Two: the criminal responsibility and voluntary intoxication instructions
were erroneous and consequently violated his right to due process

Ground Three: the prosecutor “improperly demeaned the defense of lack of
criminal responsibility” which “affected the impartiality of the jury.”

Ground Four: the state’s judicial system failed to fulfill its constitutional
responsibilities in the adjudication of mentally disabled persons.

(Docket No. 1, at 6, 8, 9, 11). On February 1, 2019, Superintendent Collette Goguen
(“Respondent”) moved to dismiss the petition. (Docket No. 12). For the reasons stated below, the
petition for writ of habeas corpus (Docket No. 1) is denied and Respondent’s motion to dismiss
(Docket No. 12) is granted.
Background
In federal habeas proceedings, “the state court’s factual findings are entitled to a
presumption of correctness that can be rebutted only by clear and convincing evidence to the
contrary.” Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002). That presumption “remains true
when those findings are made by a state appellate court as well as when they are made by a state
trial court.” Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (citations omitted). In this case, the
Massachusetts Supreme Judicial Court (“SJC”) summarized the Commonwealth’s case as follows:
On the evening of July 8, 2007, Joanne Mercier was in her bedroom in the third-
floor apartment that she shared with her brother, Aaron Bash, in Dudley. Bash was
asleep in his bedroom and their friend, Denise Johnston, was sleeping on a sofa in
the living room. Shortly after midnight on July 9, the defendant and Marc Letang
kicked down the back door and entered the apartment with their guns drawn. The
men walked through the kitchen and entered Mercier's bedroom, asking where Bash
was. After Mercier told them that Bash was asleep in his bedroom, the men left
Mercier's room and awoke Bash. As Mercier followed the men into Bash's
bedroom, she heard the defendant asking Bash whether he was sleeping with the
defendant's wife. Bash denied the accusation.
Letang went into the living room and brought Johnston into Bash's bedroom
at the defendant's request. The defendant was at the foot of the bed facing the
victims, who were all sitting on the bed, while Letang stood in the corner of the
room. The defendant continued to accuse Bash of sleeping with his wife and Bash
repeatedly denied it, stating that he would not do that to his friend. Finally, the
defendant told Bash that if he just admitted it and told the defendant what he wanted
to hear, this would all be over. When Bash refused to admit to the defendant's
accusations, the defendant said, “Fuck this,” and shot Johnston in the head. As
Bash asked the defendant, “What the eff are you doing?” the defendant shot Mercier
in the head. When Mercier regained consciousness a few minutes later, she realized
that the defendant and Letang were gone, and discovered that Johnston was still
breathing despite the gunshot to her head.
Mercier had not yet comprehended that she had been shot, but knew she
needed to call an ambulance for Johnston. She retrieved her cellular telephone and
then called to Bash. When Bash failed to answer her, she looked him and saw that
he had been fatally shot in the head. Mercier was so distraught that she had to
telephone 911 twice because, at first, she could not remember where she was.
Shortly after midnight on July 9, 2007, a patron was leaving a nearby bar
when he heard five to seven loud noises he assumed were fireworks.
Approximately one minute later, he observed two men, whom he was able to
describe, running around the corner; one of the men was carrying a firearm. The
witness heard someone say, “Go. Let's go,” as the men got into a vehicle and drove
away.
When officers entered the apartment, they observed Mercier conscious and
bleeding from her head. She was in shock, crying and “yelling things,” but was
able to communicate that “Christian” shot her.
Officers then discovered Bash and Johnston. Bash was found on the bed; he
was dead from two gunshot wounds to his head. Johnston was found near the end
of the bed, and she appeared to be alive. She later died at a hospital of a gunshot
wound to her head.
Right before the shootings, the defendant and Letang had been at the home
of a friend of the defendant, who lived in Webster; a woman and a man were also
there. Both the woman and the defendant had been smoking “crack” cocaine. The
woman testified that the more “crack” the defendant smoked, the more “crazy” he
became. The defendant was agitated; he was pacing back and forth, waving his gun
around, saying that he was going to put bullets in their heads. He also said that
Bash owed him money for drugs and that Mercier was “just a stupid bitch.” Prior
to leaving the house, the defendant said he was going to “take care of some
business” and left with his firearm.
The defendant and Letang returned to the friend's home. They came
running up the stairs, saying that they had just murdered some people. The
defendant and Letang told the woman that if she said anything about their
involvement in the murders that they would “put a cap in her head.” There was
discussion about killing the woman because she knew and had seen too much. The
defendant eventually went outside the house and demanded that the woman join
him. He was pacing in the road with his firearm, telling the woman both that he
did not mean to do it and that he did not commit the murders. Ultimately, however,
the defendant told her that he “shot the motherfucker,” referring to Bash, and that
he put the three victims on the bed and shot them execution style. He put the gun
to the woman's head several times, threatening to shoot her in the head if she said
anything about his involvement in the murders.
The woman and the defendant walked down the street where the defendant
stopped to hide his gun, which the defense stipulated was used to shoot the victims,
in the cellar of a home. He warned the woman not to tell anyone where he hid the
gun. Next, they walked to the defendant's parents' home, where he changed out of
his bloody clothing. Finally, they walked through town and ended up back at the
friend's home where they slept until later that morning.
When they woke up, the police had the house surrounded. The defendant
got up, saying, “I didn't do it,” as he left the house and ran into some woods behind
the home, where he was arrested.
The defendant was interviewed by two State police troopers at the Dudley
police department. Although the defendant initially declined to speak with the
officers, after he spoke to his wife and mother, he agreed to the interview. The
defendant admitted that he was in Webster the night before and “smoked a bunch
of crack,” but initially denied seeing Bash.
However, after the defendant figured out that Mercier had survived and was
told that the police had found his gun, he admitted to committing the shootings and
stated that he knew he was going to jail. The defendant stated that he had been
doing a lot of drugs that night, and after “the gun went off” and he shot Johnston,
he thought, “If I leave them alive, I'm going to jail for my life, so I [shot Bash and
Mercier].”
He also told the officers, “When I'm on drugs, I see . . . lots of things. I get
real crazy. I hallucinate . . . I have psych attacks. I get rages. I am a different total
person.” The defendant told the officers that he was off his medications and that
he was bipolar and schizophrenic, had anxiety, and suffered from panic attacks and
paranoia. He also noted that when he is off his medication, he gets even more
paranoid and goes “cuckoo.”
Commonwealth v. Muller, 477 Mass. 415, 416-19, 78 N.E. 3d 51 (2017).
Legal Standard
The standard of review for habeas corpus petitions is set forth in 28 U.S.C. § 2254(d), as
amended by the AEDPA. Harrington v. Richter, 562 U.S. 86, 97, 131 S.Ct. 770 (2011). Under

this standard, a federal court may only grant the writ if the underlying state court adjudication
resulted in a decision that either “(1) ‘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)
‘was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’” Brown v. Ruane, 630 F.3d 62, 66-67 (1st Cir. 2009) (quoting 28 U.S.C.
§ 2254(d)(1)-(2)).
A state court decision is “contrary to” clearly established Supreme Court precedent when
“it applies a rule that contradicts the governing law set forth in the Court’s cases or if it confronts
a set of facts that are materially indistinguishable from a decision of this Court and nevertheless
arrives at a different result.” Price v. Vincent, 538 U.S. 634, 634-35, 123 S.Ct. 1848 (2003). A

state court unreasonably applies clearly established Supreme Court precedent “if it correctly
identifies the governing legal rule but applies that rule unreasonably to the facts of a particular
case.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014). “Evaluating whether a rule application was
unreasonably requires considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.” Harrington v. Richter,
562 U.S. 86, 102 (2011); see also Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000)
(“an unreasonable application of federal law is different from an incorrect application of federal
law.”). Thus, in order to prevail on a petition for habeas under 28 U.S.C. § 2254(d)(1), the
petitioner must demonstrate that “the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 101,
131 S.Ct. 770.
Petitioner is also entitled to habeas relief if the state court decision “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)(2). Under 28 U.S.C. § 2254(e)(1), “‘a determination of a factual
issue made by a State court shall be presumed to be correct.’ The petitioner bears the burden of
overcoming that presumption by proving ‘clear and convincing evidence.’” Teti v. Bender, 507
F.3d 50, 57 (1st Cir. 2007); see also Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2001) (“A
habeas petitioner therefore must clear a high hurdle before a federal court will set aside any of the
state court’s factual findings.”). In addition, “[t]he ‘presumption of correctness is equally
applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.’”
Teti, 507 F.3d at 58 (quoting Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003)).
In addition, a petitioner is not entitled to habeas relief on the basis of a non-structural

constitutional error, unless he “can establish that it resulted in ‘actual prejudice.’” Brecht v.
Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710 (1993). Specifically, a petitioner must show that
the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Id.
(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct 1239 (1946)). Further, “when a
state court determines that a constitutional violation is harmless, a federal court may not award
habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” Fry v.
Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321 (2007) (emphasis in original); see also Connolly v.
Roden, 752 F.3d 505, 511 (1st Cir. 2014) (“There is clear logic [to this framework]: if an error had
a ‘substantial and injurious’ effect on a jury’s verdict . . . then it is necessarily unreasonable to
conclude that the error was harmless beyond a reasonable doubt.”).
Discussion
1. Grounds I, II, & III

“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner 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 v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546
(1991)).
The First Circuit has consistently held that the Massachusetts contemporaneous objection
rule, which requires a party to make their objection known at the time of the ruling, Mass. R. Crim.
P. 22, is an independent and adequate state procedural ground that precludes federal collateral
review. Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010) (citations omitted). Cf. Johnson v.

Mississippi, 486 U.S. 578, 588-89, 108 S.Ct. 1981 (1988) (requiring that a state procedural rule be
consistently applied to constitute independent and adequate state ground).
While the SJC assessed the merits of Petitioner’s claim under the miscarriage of justice
standard, this discretionary review does not constitute a waiver of the contemporaneous objection
rule. Janosky, 594 F.3d at 44 (citations omitted); see also Gunter v. Maloney, 291 F.3d 74, 79 (1st
Cir. 2002) (“Miscarriage of justice review by the SJC . . . does not itself create independent rights
in habeas petitioners.”); Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991) (“The mere fact
that a state appellate court engages in a discretionary, and necessarily cursory, review under a
‘miscarriage of justice’ analysis does not in itself indicate that the court has determined to waive
an independent state procedural ground for affirming the conviction.”); Lee v. Corsini, 777 F.3d
46, 57 (1st Cir. 2015) (“[P]rocedurally defaulted claims cannot be resurrected by a single justice’s
holistic review of the merits in the context of a miscarriage-of-justice analysis.”). Cf. Beard v.
Kindler, 558 U.S. 53, 60, 130 S.Ct. 612 (2009) (holding that “a discretionary state procedural rule

can serve as an adequate ground to bar federal habeas review”). Federal courts “will not infer
waiver of a contemporaneous objection rule unless the state appellate court has made it reasonably
clear that its reasons for affirming a conviction rest upon its view of federal law,” rather than the
pertinent state procedural requirement. Tart, 949 F.2d at 496 (quotation marks and citation
omitted). The SJC found no substantial risk of a miscarriage of justice in accordance with the state
procedural regarding all of Petitioners objections. Accordingly, I will not infer a waiver of the
contemporaneous objection rule.
Because Petitioner’s counsel made no contemporaneous objections to the alleged errors in
the jury instructions or the prosecutor’s closing, the SJC reviewed for a substantial likelihood of a
miscarriage of justice. See Muller, 477 Mass. at 428, 429, 431. Further, Petitioner conceded in his

appellate brief that no contemporaneous objections were made at trial and that substantial
likelihood of a miscarriage of justice was therefore the appropriate standard of review. (Docket
No. 16, at 34, 39, 43). Consequently, I find that Petitioner procedurally defaulted all of the grounds
on which he seeks relief from this Court.
A procedural default may be excused, however, if the “petitioner can demonstrate cause
for the default and actual prejudice.” Janosky, 594 F.3d at 44 (citing Burks v. Dubois, 55 F.3d 712,
716 (1st Cir. 1995)). “The general requirement for cause for a procedural default is that the
prisoner must show ‘that some objective factor external to the defense impeded counsel’s efforts
to comply with the State’s procedural rule.’” Gunter v. Maloney, 291 F.3d 74, 81 (1st Cir. 2002)
(quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639 (1986)). Petitioner has not offered
any cause for the default.
A court may also excuse the default if the petitioner can demonstrate there was a
“fundamental miscarriage of justice.” Id. “To show that a fundamental miscarriage of justice

would occur in the habeas context, ‘petitioner must establish actual innocence.’” Id. at 83 (quoting
Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999)). To do this, “petitioner must show that
it is more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851 (1995). Here, Petitioner has
made no credible argument that he is actually innocent.1
2. Ground IV
Petitioner argues that “the state’s judicial system is not fulfilling it’s constitutional
responsibility in the adjudication of mentally disabled persons.” (Docket No. 1, at 11). Petitioner’s
argument seems to be based on the argument he presented to the SJC for relief pursuant to Mass.
Gen. Laws ch. 278, § 33E. Insofar as Petitioner argues that there is an error with respect to Section

33E relief, this Court cannot review that claim. See Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(“In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.”).
Further, if Petitioner contends that his conviction violated the United States Constitution,
he did not present that claim to the SJC. AEDPA instructs that habeas relief “shall not be granted
unless it appears that the applicant has exhausted the remedies available in the courts of the State.”

1 Respondent urges the Court to dismiss the petitioner because Petitioner has not satisfied the exhaustion
requirement. See 28 U.S.C.§ 2254(b)(1)(A) (instructing that federal courts may not grant habeas relief
“unless it appears that the applicant has exhausted the remedies available in the courts of the State”).
Because the Court finds that Petitioner has procedurally defaulted his claims, the Court will not address
whether he has exhausted Grounds I, II, & III.
28 U.S.C.§ 2254(b)(1)(A). Thus, federal courts “will not entertain an application for habeas relief
unless the petitioner first has fully exhausted his state remedies in respect to each and every claim
contained within the application.” Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (citation
omitted). The exhaustion requirement provides “the State the opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.
1347 (2004). “Where, as here, a state’s highest court offers discretionary review, a petitioner must
present that court with the opportunity to review the federal claim to have exhausted available state
remedies.” Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007).
To satisfy the exhaustion requirement, “a habeas petitioner bears a heavy burden to show
that he fairly and recognizably presented to the state courts the factual and legal basis of [his]
federal claim.” Adelson, 131 F.3d at 262. Insofar as Petitioner makes a Constitutional challenge
to Section 33E review, Petitioner has not satisfied his burden to show that the issue was fairly
presented to the state courts. Accordingly, if the claim is a federal claim, it is unexhausted.
Conclusion

For the reasons stated above, the petition for habeas corpus (Docket No. 1) is denied and
Respondent’s motion to dismiss (Docket No. 12) is granted.
Certificate of Appealability
The statute governing appeals of final orders in habeas corpus proceedings provides that
an appeal is not permitted “[u]nless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1). A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
“substantial showing,” a petitioner must demonstrate that “reasonable jurists could debate whether
. . . the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484,
120 S.Ct. 1595 (2000) (internal quotation marks omitted). This is a low bar; a claim can be
considered “debatable” even if every reasonable jurist would agree that the petitioner will not
prevail. Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029 (2003). In ruling on an

application for a certificate of appealability, a district court must indicate which specific issues
satisfy the “substantial showing” standard. 28 U.S.C. § 2253(c)(3).
Petitioner either procedurally defaulted Grounds I, II, and III. Further, he has not made
any showing of cause or actual innocence. Accordingly, I find that no reasonable juror could
debate whether Petitioner has defaulted on his claims. See Delacruz v. Vidal, 2017 WL 1330191,
at *1 (D. Mass. Apr. 6, 2017) (denying a certificate of appealability for claims that were
procedurally defaulted); Brown v. O’Brien 755 F. Supp. 2d 335, 337 (D. Mass. 2010) (same).
Finally, insofar as Ground IV is a Constitutional challenge to Section 33E review, Petitioner has
not exhausted this claim. I also find that no reasonable juror could find that the issue has been
fairly presented to the state courts. See Fletcher v. Marshall, 525 F. Supp. 2d 233, 237 (D. Mass.

2007) (denying a certificate of appealability for failure to exhaust claims).
Consequently, I am denying a COA with regard to all of Petitioners claims.
SO ORDERED
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197795. Public record. Not legal advice.