Long v. Medeiros

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

________________________________________

)

DERYCK LONG, )

)

Petitioner, )

) Civil Action No.

v. ) 17-12064-FDS

)

SEAN MEDEIROS, )

)

Respondent. )

)

MEMORANDUM AND ORDER ON

PETITION FOR A WRIT OF HABEAS CORPUS

SAYLOR, J.

This is a pro se petition for a writ of habeas corpus by a prisoner in state custody. On

March 21, 2011, a Massachusetts jury found petitioner Deryck Long guilty of first-degree

murder and illegal possession of a firearm. He was sentenced to life imprisonment without

possibility of parole.

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

alleging ineffective assistance of counsel in violation of the Sixth Amendment and an illegal

search in violation of the Fourth Amendment. The petition is based on defense counsel’s alleged

failure to investigate and introduce evidence obtained from cell-phone records and the trial

court’s denial of a motion to suppress testimony obtained as a result of an illegal wiretap. For

the reasons set forth below, the motion will be denied.

I. Background

A. Factual Background

The facts of this case are taken from the decision of the Supreme Judicial Court. See

Commonwealth v. Long, 476 Mass. 526 (2017).

On January 9, 2006, Jamal Vaughan, the victim, was found shot to death in a parking lot

behind an apartment complex in Quincy, Massachusetts. Id. at 527-28.

From late 2005 to early 2006, Deryck Long would frequently stay with his girlfriend,

Janet Ojo, at her house on Franklin Street in Quincy. Id. at 527. About two weeks before

Vaughan’s death, Long and Ojo ended their relationship, apparently over a money dispute. Id.

On the night of January 9, 2006, Long asked a friend named Courtney Forde to drive him to

Ojo’s house to pick up some belongings he had left there. Id. Forde picked him up in his car,

bringing along his friend and drug-dealing associate, Paul Brown, and an unidentified woman

Forde had recently met. Id.

When they arrived at Ojo’s house around 9:45 p.m., Long got out of the vehicle and went

inside. Id. Ojo was not home, but a few of her friends were inside, including Vaughan. Id.

Long and Vaughan got into a fistfight about money that Long allegedly stole from Ojo. Id. The

fight spilled out onto the front yard. Id. After Brown got out of Forde’s car, Vaughan ran back

inside the house. Id. Long tried to re-enter the house and threw a brick through one of the

windows. Id.

Long and Brown got back into Forde’s car and drove a short distance, then stopped

because Long remembered he had left some “IDs” behind in a shoebox. Id. at 527-28. He,

Brown, and Forde walked back to Ojo’s house. Id. at 528. Vaughan was outside and ran back

into the house when he saw them approaching. Id. They drove back to Boston and dropped off

the unidentified woman in Milton. Id. They stopped at the house in Mattapan where Long was

staying and retrieved his keys to Ojo’s house. Id. Forde drove them back to Ojo’s house. Id.

Nobody was home, and they entered using Long’s keys. Id. They took various items, including

two handguns stored in a shoebox: a revolver and a Tec-9 semiautomatic pistol. Id. Long put

the revolver on his waist. Id.

Long directed Forde to drive to an apartment building on Willard Street in Quincy where

he had stayed with Ojo in the past. Id. Forde called two of his drug customers who lived in the

apartment building to ask one of them to open the back door so Long could enter the building.

Id. Neither customer answered. Id. Forde parked his car in a dimly-lit spot near some trees, far

from the entrance to the building. Id. At the same time, Vaughan left the building to retrieve

cigarettes from his car. Id. Long and Brown exited Forde’s car, walked over to Vaughan, and

shot him several times. Id.

Around midnight, a neighbor at the apartment building telephoned 911 to report hearing

gunshots. Id. Police and emergency services responded to the scene, where they discovered

Vaughan with three gunshot wounds. Id. Vaughan was transported to the hospital, where he

was pronounced dead. Id.

After the shooting, Forde drove back to his house in Boston. Id. Forde then drove to a

friend’s house, where Long, Brown, and Forde unloaded the items taken from Ojo’s house,

including a shoebox containing a rusty firearm and its magazine. Id. at 528-29.

Police recovered two spent projectiles, fired from two different weapons, from

Vaughan’s body. Id. at 528. Police also recovered seven shell casings, all of which came from

the same 9-millimeter pistol, and a spent projectile that was “mostly” consistent with having

been shot from a revolver. Id.

B. Procedural Background

Police arrested Long on January 10, 2006. Id. at 534. On January 20, the

Commonwealth obtained a warrant authorizing the placement of a wiretap on a booth in the

visiting room at the Norfolk County House of Correction in order to monitor conversations

between Long and his visitors. Id. at 533. As a result of the wiretap recordings, police identified

another witness, Gillian Gibbs, and obtained more information on Forde’s involvement in the

shooting. Id.

Long filed a pretrial motion to suppress evidence obtained from the wiretap, which the

motion judge allowed. Id. The motion judge concluded that the wiretap did not meet the

requirements of Mass. Gen. Laws ch. 272, § 99, because the Commonwealth failed to establish

that the offense under investigation was committed in connection with “organized crime.” Id.

After an evidentiary hearing to determine the scope of the evidence to be suppressed, the

motion judge excluded the recording of the conversation between Long and Gibbs, and any

testimony by Gibbs. Id. at 534. The judge found that Gibbs’s decision to speak with police was

directly motivated by the fact that they confronted her with the wiretap evidence. Id. However,

the judge did not exclude Forde’s testimony, concluding that his decision to testify was

sufficiently attenuated from the unlawful wiretap, which had occurred five months earlier, to

dissipate the taint of illegality. Id.

The Supreme Judicial Court affirmed the motion judge’s decision, holding that there was

no error in the judge’s determination that the taint of the illegal wiretap was sufficiently

attenuated as to allow Forde’s testimony. Id. at 527, 534, 537-38. On March 21, 2011, a jury in

Norfolk Superior Court convicted Long of one count of first-degree murder based on deliberate

premeditation and one count of illegal possession of a firearm. He was sentenced to life

imprisonment without possibility of parole.

On August 8, 2014, he filed a motion for a new trial, alleging ineffective assistance of

counsel based on defense counsel’s failure to present Cell Site Location Information (“CSLI”) to

discredit the testimony of Forde, a critical witness for the Commonwealth. The trial judge

denied the motion on April 17, 2015.

Long appealed his conviction to the SJC, which was consolidated with the appeal from

the denial of the motion for a new trial. The SJC denied his consolidated appeal on February 24,

2017. 476 Mass. 526.1

Long timely filed the present petition on October 17, 2017, alleging violations of his

Fourth and Sixth Amendment rights. See 18 U.S.C. § 2254(d). The petition presents two

grounds: (1) that defense counsel’s failure to investigate and introduce the CSLI data to impeach

Forde’s testimony constituted ineffective assistance of counsel; and (2) that the denial of Long’s

motion to suppress Forde’s testimony was in error. (Pet. at 23, 48).

II. Standard of Review

Because Long appears pro se, his pleadings must be construed more leniently than those

drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a

petitioner's pro se status does not excuse him from complying with procedural and substantive

requirements of the law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

Under 28 U.S.C. § 2254(d), a federal court may not issue a habeas petition “with respect

to any claim that was adjudicated on the merits in State court proceedings” unless the state court

decision (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

1 He did not seek further review from the United States Supreme Court.

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

A state-court decision is “contrary to” clearly established federal law if it (1) “applies a

rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or (2) resolves a

case differently from the Supreme Court on a set of “materially indistinguishable” facts. Early v.

Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). In

either scenario, the state-court decision must be “substantially different,” “diametrically

different,” “opposite in character or nature,” or “mutually opposed” to Supreme Court precedent.

Williams, 529 U.S. at 405.

A state-court decision involves an “unreasonable application” of federal law if the state

court identified the correct governing legal principle from the Supreme Court’s decisions, but

applied it in an objectively unreasonable manner. See Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003) (citing Williams, 529 U.S. at 409). The Supreme Court has cautioned that “[a]n

unreasonable application of federal law is different from an incorrect application of federal

law.” Williams, 529 U.S. at 410. The state court’s application of federal law must be “more than

incorrect or erroneous.” Lockyer, 538 U.S. at 75 (citing Williams, 529 U.S. at 410, 412); see also

Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (“A decision can still be reasonable even if the

reviewing court thinks it is wrong; ‘unreasonable’ here means something more than incorrect or

erroneous.”). Furthermore,

if it is a close question whether the state decision is in error, then the state

decision cannot be an unreasonable application . . . . [S]ome increment of

incorrectness beyond error is required. The increment need not necessarily be

great, but it must be great enough to make the decision unreasonable in the

independent and objective judgment of the federal court.

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (internal citations and quotation marks

omitted).

Federal courts must presume the correctness of state courts’ factual findings unless

rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. Analysis

A. Ineffective Assistance of Counsel

1. Standard

Claims for ineffective assistance of counsel under the Sixth Amendment must satisfy the

two-part test of Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective

assistance, a petitioner must establish both (1) that his counsel provided deficient assistance and

(2) that he suffered prejudice as a result. Id. at 687.

The first prong of the Strickland test requires a petitioner to demonstrate that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.

There is a “‘strong presumption’ that counsel’s representation was within the ‘wide range’ of

reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

Strickland, 466 U.S. at 689); see also Genius v. Pepe, 147 F.3d 64, 66 (1st Cir. 1998)

(“[C]ounsel’s judgments in formulating the defense strategy are entitled to substantial

deference.”). A petitioner may overcome the presumption by demonstrating that counsel’s

alleged errors were so serious that his performance “fell below an objective standard of

reasonableness under the circumstances.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007)

(citing Strickland, 466 U.S. at 688); see also Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir. 2006).

The Sixth Amendment does not guarantee either a perfect or a successful defense. See

Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (stating that the “Sixth Amendment guarantees

reasonable competence, not perfect advocacy judged with the benefit of hindsight”). “It is only

where, given the facts at the time, counsel’s choice was so patently unreasonable that no

competent attorney could have made it, that the ineffective assistance prong is satisfied.” Knight

v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (quotations omitted); see also Epsom v. Hall, 330 F.3d

49, 54 (1st Cir. 2003) (“Trial lawyers make countless tactical choices and unless the net

reckoning is ‘patently unreasonable,’ counsel’s judgment is not constitutionally defective.”).

“[T]he Sixth Amendment imposes on counsel a duty to investigate, because reasonably

effective assistance must be based on professional decisions and informed legal choices can be

made only after investigation of options.” Strickland, 466 U.S. at 680. Defense counsel is

required “to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Id. at 691. “[S]trategic choices made after less than

complete investigation are reasonable [only] to the extent that reasonable professional judgments

support the limitation on investigation.” Id. at 690-91.

The second prong of the Strickland test requires a petitioner to show that counsel’s

deficient performance resulted in “prejudice” – that is, that “counsel’s errors were so serious as

to deprive the [petitioner] of a fair trial, a trial whose result was reliable.” Strickland, 466 U.S. at

687. Stated differently, a petitioner “must show that there is a reasonable probability that, but for

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

694; Sleeper, 510 F.3d at 39.

The Supreme Court has noted that “[s]urmounting Strickland’s high bar is never an easy

task.” Harrington, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).

“Establishing that a state court’s application of Strickland was unreasonable under § 2254(d)” is

difficult because both standards are “‘highly deferential.’” Id. (quoting Strickland, 466 U.S. at

689). “[T]he question [under § 2254(d)] is not whether counsel’s actions were reasonable,” but

“whether there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Id. A petitioner alleging ineffective assistance of counsel under § 2254 must not only

demonstrate that counsel was ineffective under the Strickland standard, but “must also

demonstrate that the state court's denial of his claim was objectively unreasonable.” Abrante v.

St. Amand, 595 F.3d 11, 19 (1st Cir. 2010).

2. Analysis

Long alleges that his counsel rendered ineffective assistance in violation of the Sixth

Amendment by failing to introduce CSLI data to discredit Forde, who provided critical testimony

for the Commonwealth, and by failing to investigate that data sufficiently.

The first issue concerns defense counsel’s failure to introduce the CSLI data. That was a

strategic decision that amounts to ineffective assistance only if it was “so patently unreasonable

that no competent attorney could have made it.” See Knight, 447 F.3d at 15.

Long contends that defense counsel erred in not introducing available CSLI records of

conversations between Forde and his girlfriend, Maria DeRosa. He specifically contends that

Forde testified at the trial that upon leaving Franklin Street, he drove south to Quincy; however,

the CSLI data indicated that he in fact traveled north. He further contends that this inconsistency

should have been used by defense counsel to attack Forde’s credibility. During Brown’s trial in

January 2011, his defense counsel used the CSLI evidence to discredit Forde and his claimed

version of events. A telecommunications expert was called to testify regarding cell-tower

tracking of the cellular phones. Brown was ultimately found not guilty of first-degree murder.2

2 Long also contends that the trial judge applied the incorrect standard for ineffective assistance of counsel

when denying his motion for a new trial. However, he raised his ineffective assistance of counsel claim before the

SJC, and the court rejected it under the more favorable standard of review that he seeks. See Long, 476 Mass. at 529

(“In reviewing a claim of ineffective assistance in a case of murder in the first degree, we apply the more favorable

standard of review of a substantial likelihood of a miscarriage of justice, pursuant to [Mass. Gen. Laws Ch.] 233, §

33E.”). Applying the more favorable standard, the court specifically found that Long had not established that

counsel’s decision not to use the CSLI data was manifestly unreasonable. See id. at 530-31.

Under the circumstances, counsel’s decision was not patently unreasonable, and in any

event the SJC’s decision was not an unreasonable application of Strickland. As the SJC

concluded, it was not unreasonable for defense counsel to decline to introduce the CSLI data.

The CSLI data placed Forde in Quincy at the time of the shooting. Defense counsel certainly

could have reasonably concluded that the cost of corroborating Forde’s presence at the shooting

outweighed the benefit of contradicting Forde’s testimony about a slight inconsistency in his

timeline of events. Defense counsel’s strategic decision to not introduce the CSLI data deserves

substantial deference. See Genius, 147 F.3d at 66.

The SJC’s conclusion that defense counsel’s strategy was not unreasonable because he

discredited Forde in other ways also satisfies the constitutional standard. See Long, 476 Mass. at

531-32. As the SJC found, instead of introducing the CSLI data that placed Forde at the scene of

the murder, defense counsel “was able to challenge Forde’s testimony” through “rigorous[]”

cross-examination about “inconsistencies between the version of events that he initially told

police and his testimony at trial.” See id. at 531. Defense counsel also attacked Forde’s

character through cross-examination about, among other things, his drug dealing, prior arrests,

and plea agreement.3 Habeas relief is not required where the tactic counsel did not pursue would

merely serve to further impeach a trial witness who was already discredited. Malone v. Clarke,

536 F.3d 54, 67 (1st Cir. 2008) (counsel not ineffective where the “potential impeachment value

of [a witness’s testimony] would not have significantly undermined [the testifying victim’s]

credibility”). Defense counsel could have reasonably concluded that Forde was already

sufficiently discredited. At a minimum, the SJC’s decision that defense counsel’s strategic

choice not to use the CSLI data to further impeach Forde was reasonable was not contrary to or

3 In exchange for pleading guilty to a lesser charge and testifying against Long and Brown, Forde received

a sentence of time served and probation.

an unreasonable application of federal law.

As to defense counsel’s alleged failure to investigate the CSLI data, the initial inquiry is

whether counsel’s decisions were so patently unreasonable that no competent attorney could

have made them. See Strickland, 466 U.S. at 690-91. Long contends that defense counsel failed

to understand and investigate the CSLI data. He specifically contends that defense counsel did

not acquire Forde’s testimony at Brown’s trial, did not watch Brown’s trial, had only a general

understanding of the telecommunications expert’s testimony, and failed to recognize the

importance of the CSLI data. However, as the SJC found, defense counsel attested that he was

aware that a telecommunications expert could testify at trial. See Long, 476 Mass. at 533. He

further attested that he investigated the CSLI data by speaking to Brown’s defense counsel and

obtaining a copy of Forde’s telephone records. See id. Defense counsel therefore made efforts

to understand and investigate the potential value of the CSLI data—efforts that do not fall below

the level necessary to sustain an ineffectiveness claim. As the SJC observed, “defense counsel

appreciated the value of the CSLI evidence and, as the trial progressed, continued to gauge the

usefulness of this evidence.” See id. Again, and at a minimum, the SJC reasonably concluded

that Long’s defense counsel adequately investigated use of the CSLI data, and that decision was

not contrary to or an unreasonable application of federal law.

In summary, the CSLI data would, at most, only impeach a small portion of Forde’s

testimony—his timeline of events—and carried a significant risk of corroborating the

government’s case. Defense counsel’s strategic decision not to offer such evidence was not

patently unreasonable, and the SJC’s decision that counsel was not constitutionally ineffective

was not contrary to or an unreasonable application of clearly established federal law. The claim

under the Sixth Amendment for habeas relief will therefore be denied.

B. Fourth Amendment Claim

1. Standard

Petitioners seeking federal habeas corpus review may not invoke Fourth Amendment

claims where they have “been afforded the opportunity for full and fair consideration of their

reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and

on direct review.” Stone v. Powell, 428 U.S. 465, 489 (1976). That principle survived the

enactment of the Antiterrorism and Effective Death Penalty Act in 1996, which generally altered

the standard for federal habeas review of state court decisions. Sanna v. DiPaolo, 265 F.3d 1, 8

(1st Cir. 2001). If a petitioner has a full and fair opportunity to litigate, federal courts “lack[] the

authority, under Stone, to second-guess the accuracy of the state court’s resolution of those

claims.” Id. A petitioner claiming that he did not receive a full and fair opportunity to litigate

his Fourth Amendment claim bears the burden of proof. Id.

2. Analysis

Long contends that the trial court erred in denying his motion to suppress Forde’s

testimony. His Fourth Amendment claim was litigated at trial and on appeal with the SJC

following a full evidentiary hearing to determine the scope of suppressed evidence. The motion

judge’s opinion, which was affirmed by the SJC, held that Forde’s statements to police, which

were made five months after the wiretap, were admissible because they were sufficiently

attenuated from the taint of the Fourth Amendment violation. He has not presented any

arguments or evidence to show why he did not receive a full and fair opportunity to litigate his

claim. See Stone, 428 U.S. at 494-95. In any event, the SJC decision was not contrary to, and

did not involve an unreasonable application of, clearly established federal law, as determined by

the Supreme Court, and was not an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). The claim under the

Fourth Amendment for habeas relief will therefore be denied.

IV. Conclusion

Accordingly, for the reasons set forth above, Long’s petition for a writ of habeas corpus

under 28 U.S.C. § 2254 is DENIED.

So Ordered.

/s/ F. Dennis Saylor

F. Dennis Saylor IV

Dated: July 2, 2019 United States District Judge