Saint-Vil v. Alves

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

JOHNAVON SAINT-VIL, )

)

Petitioner, )

) CIVIL ACTION

v. ) No. 22-10574-WGY

)

NELSON ALVES, )

)

Respondent. )

___________________________________)

YOUNG, D.J. June 7, 2023

MEMORANDUM AND ORDER

PETITION FOR WRIT OF HABEAS CORPUS, PURSUANT TO

28 U.S.C § 2254

I. INTRODUCTION

A. Procedural History

Following a jury-waived trial in the Superior Court of

Massachusetts sitting in and for the County of Suffolk, Johnavon

Saint-Vil (“Saint Vil”) was convicted of two counts of mayhem,

three counts of indecent assault and battery on a child, and

five counts of assault and battery by means of a dangerous

weapon. Resp’t’s Supplemental Answer to Pet. (“SA”) 8-11, 297,

ECF No. 25. On Counts one and two, Saint-Vil was sentenced to

seven-to-ten years in prison. Id. at 11. On Counts eleven,

twelve, and thirteen, Saint-Vil was sentenced to ten-to-twelve

years in prison. Id. at 10. On Counts three through seven,

Saint-Vil was sentenced to eight years of probation to run after

the sentence. Id. at 11.

Saint-Vil appealed his conviction -- filing multiple

motions for a new trial claiming ineffective assistance of

counsel. Pet. Relief Writ of Habeas Corpus (“Pet.”) 6-8, ECF

No. 10. The motions were denied in May 2018 and October 2019.

SA 11-15. On January 18, 2022, the Massachusetts Appeals Court

(“Appeals Court”) affirmed the denial of the motions and upheld

Saint-Vil’s conviction. Commonwealth v. Saint-Vil, 100 Mass.

App. Ct. 1120 at *1 (2022). On August 4, 2021, Saint-Vil was

denied further state-appellate review with the Massachusetts

Supreme Judicial Court (“SJC”). SA 19, 300, 326.

On August 10, 2022, Saint-Vil filed this petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., ECF

No. 10. The parties have briefed the issues. See Resp’t’s

Answer to Pet’r’s Pet. for Writ of Habeas Corpus, ECF No. 24;

SA, ECF No. 25; Pet’r’s Mem. Law Supp. Pet. for Writ of Habeas

Corpus (“Pet’r’s Memo”), ECF No. 30; Resp’t’s Mem. Law in Opp’n

to Pet. for Writ of Habeas Corpus (“Resp’t’s Opp’n”), ECF. No.

33; Reply Br. Supp. Pet. for Writ of Habeas Corpus (“Reply”),

ECF. No. 34.

B. Factual Background

The relevant facts below come from the Appeals Court’s

opinion in the criminal appeal. Saint-Vil, 100 Mass. App. Ct.

at *1. Under section 2254, this Court will presume the State

court’s factfinding to be correct. 28 U.S.C. § 2254(e)(1).1 The

petitioner has the burden of rebutting this presumption by clear

and convincing evidence. Id. “If the Supreme Judicial Court of

Massachusetts, the Commonwealth’s highest court, has declined to

review the conviction, then we can rely upon the ‘”the last

reasoned decision” issued by the Massachusetts Appeals Court’

(MAC) in crafting the factual and procedural narrative.”

Strickland v. Goguen, 3 F.4th 45, 47-48 (1st Cir. 2021) (quoting

King v. MacEachern, 665 F.3d 247, 252 (1st Cir. 2011)).

The children involved, named Marco and Andrea for the

purposes of the case, lived with their mother in their maternal

grandparents’ home. Saint-Vil, 100 Mass. App. Ct. at *1. The

mother began dating Saint-Vil and moved her children into an

apartment with Saint-Vil in 2012. Id. In 2013, Marco informed

his grandfather that Saint-Vil had whipped him and his sister,

1   This, of course, is not a “true” presumption at all.

See WILLIAM G. YOUNG, INFERENCES, PRESUMPTIONS AND PRIMA FACIE

EVIDENCE, IN REFLECTIONS OF A TRIAL JUDGE: A COLLECTION OF LECTURES BY

THE HONORABLE WILLIAM G YOUNG 30, 31-33 (MCLE, 1998). Rather, it

shifts to the petitioner the full burden of proof, indeed a

heightened burden of proof.

Andrea, with a belt. Id. After confronting Saint-Vil, and

noticing additional disturbing injuries, the grandfather and

mother decided to move Marco and Andrea back to their maternal

grandparents’ home. Id. The grandfather, however, did not

report Saint-Vil to the authorities. Id.

Later a pediatrician noted multiple burns apparently

inflicted by lit cigarettes. Id. “On November 7, 2013, a

sexual assault nurse examiner (SANE) performed an examination of

the children and took photographs of the injuries. Both children

had ‘numerous healed burn marks’ on their bodies, as well as

other marks that appeared to be cuts or puncture wounds.” Id.

At trial, Saint-Vil’s sole defense was that a third party

inflicted the abuse on the children. Id. Importantly for this

case,

Trial counsel consulted with a medical expert prior to

trial in an attempt to determine, from the stage of

healing represented in the photographs, when the burns

had been inflicted. Because the expert “was not able

to offer a helpful opinion that would have excluded

[the petitioner] as the potential source of the

injuries,” trial counsel did not retain the expert for

trial. Instead, trial counsel cross-examined the

Commonwealth’s expert, eliciting from her, in part, an

opinion that the November 7, 2013 SANE photographs

“depicted wounds that had been healed -- had been

healing at least for five to seven days.” Trial

counsel argued that this expert testimony established

that the children had been injured after they moved in

with their grandparents on October 4, 2013, and they

no longer had any contact with the [petitioner]. He

highlighted the close relationship between the

grandparents and the children, arguing that the family

was “scapegoat[ing]” the [petitioner] because he was

“expendable.”

Id.

II. ANALYSIS

Saint-Vil’s petition for a writ of habeas corpus ultimately

fails because the Appeals Court’s application of Strickland, an

already general and deferential standard, was reasonable.

Saint-Vil’s petition proceeds from the single theory that

his attorney rendered ineffective assistance of counsel by

failing to retain an expert witness to testify regarding when

certain burn wounds might have been inflicted. Pet’r’s Memo 1.

Saint-Vil’s argument is that the children were burned after his

last contact with them on October 4, 2013, and an expert could

have testified that the wounds, as photographed on November 7,

2013, were less than 30 days old. Pet’r’s Memo 7-8.

Saint-Vil, however, was neither afforded constitutionally

deficient counsel because his attorney made tactical decisions

regarding expert witnesses nor was he prejudiced by the alleged

errors of his counsel because the “sole theory of the defense”

was introduced at trial through cross-examination and the

prosecution proved their case primarily through victim

testimony. Pet’r’s Memo 1.

A. Standard of Review

Saint-Vil filed his petition under 28 U.S.C. § 2254. Pet.

1. This statute outlines the standards a person in state

custody must meet for a writ of habeas corpus to be granted.

The statute states in part,

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on

the merits in State court proceedings unless the

adjudication of the claim --

(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[.]

28 U.S.C. § 2254(d)(1). Saint-Vil challenges his custody under

section (d)(1) claiming that his custody is in violation of the

Sixth Amendment and its progeny because he received ineffective

assistance of counsel at trial. Pet’r’s Memo 1. Specifically,

Saint-Vil argues that by “fail[ing] to retain ‘an absolutely

necessary’ medical expert to support the sole theory of defense”

his attorney violated the standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Id.

The climb Saint-Vil faces is steep –- and indeed proves too

steep to surmount in this case. The burdens created by section

2254 are designed to ensure that “federal habeas relief will be

granted only in cases in which all fairminded jurists would

agree that a final state court decision is at odds with the

Supreme Court’s existing precedents.” Bebo v. Medeiros, 906

F.3d 129, 134 (1st Cir. 2018) (citing Harrington v. Richter, 562

U.S. 86, 102 (2011)). A federal court “may not overrule a state

court for simply holding a view different from its own.” Id.

(quoting Mitchell v. Esparza, 540 U.S. 12, 17 (2003)). A state

court “decision is contrary to clearly established federal law”

only if it either “announces a rule of law that directly

contradicts Supreme Court precedent or . . . reache[s] a

different result than the Supreme Court on materially

indistinguishable facts.” Cronin v. Comm’r of Prob., 783 F.3d

47, 50 (1st Cir. 2015) (citing Williams v. Taylor, 529 U.S. 362,

412-13 (2000)). Habeas corpus is meant to protect petitioners

from a near-total breakdown in the state criminal justice

system. See Harrington, 562 U.S. at 102 (citing Jackson v.

Virginia, 443 U.S. 307, 322 n.5 (1979)). It is not meant as a

“substitute for ordinary error correction through appeal.” Id.

at 102-03.

B. The Massachusetts Appeals Court’s application of

Strickland was reasonable.

The Appeals Court’s application of Strickland to the

behavior alleged in the petition was reasonable. Even were this

Court to review under the singularly deferential standard of

Strickland, there was no viable ineffective assistance of

counsel claim because defense counsel was not constitutionally

deficient and, even if counsel was deficient, the petitioner was

not prejudiced because of counsel’s actions. This Court

reviews, however, under the doubly deferential standard set out

by section 2254.

Strickland is the clearly established federal law governing

an ineffective assistance of counsel claim. See Williams v.

Taylor, 529 U.S. 362, 391 (2000) (“It is past question that the

rule set forth in Strickland qualifies as ‘clearly established

Federal law, as determined by the Supreme Court of the United

States.’”) Strickland instructs that review of “counsel’s

performance must be highly deferential.” 466 U.S. 689. There

is a “strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound

trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)).

Since this case comes to the Court as a section 2254

petition, the question is not whether there was a violation of

Strickland, but rather this Court must review whether the

Appeals Court’s application of Strickland was unreasonable. See

Harrington, 562 U.S. at 87-88. This type of review -- whether

the state court has unreasonably applied the already deferential

standard of Strickland -- has been deemed “doubly deferential”

due to the dual-nature of deference that must be surmounted in

order for a petitioner to have a viable claim. See Cullen v.

Pinholster, 563 U.S. 170, 190 (2011). The Appeals Court

reasonably applied Strickland, or the state-version thereof¸2 to

the facts alleged.

In Strickland, the Supreme Court articulated a test for

review of ineffective assistance of counsel, which is part and

parcel to the right to counsel itself. See 466 U.S. at 687; see

also McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)

(recognizing right to counsel is right to effective assistance

of counsel); see also Gideon v. Wainwright, 372 U.S. 335 (1963)

(ruling Sixth Amendment provides criminal defendants with right

to counsel). The Court in Strickland formulated a two-part test

for a claim of ineffective assistance of counsel. See 466 U.S.

at 687. First, the petitioner bears the burden of showing that

counsel was constitutionally deficient. See id. Second, the

petitioner bears the burden of showing “that the deficient

2 The Appeals Court applied the standard set out in

Commonwealth v. Saferian, 366 Mass. 89 (1974). This standard

has been recognized by the First Circuit as the “functional

equivalent” of Strickland. Lynch v. Fiacco, 438 F.3d 35, 48

(1st Cir. 2006).

performance prejudiced the defense.” Id. Unless a petitioner

can prove both deficiency and prejudice, there is no cognizable

claim for ineffective assistance of counsel. See id.

First, Saint-Vil’s attorney was not constitutionally

deficient. Saint-Vil’s counsel made a tactical decision to focus

resources on cross-examination after investigating, and failing

to find, an expert beneficial to the defense. Second, Saint-Vil

was not prejudiced because the “sole theory” of the defense was

elicited through cross-examination of the Commonwealth’s expert

at trial and the prosecution proved its case primarily through

victim testimony, not expert witness testimony. For these

reasons, the Appeals Court did not unreasonably apply Strickland

to the facts alleged and Saint-Vil’s petition will be denied.

1. The Appeals Court was reasonable in concluding

that counsel’s decisions were not

constitutionally deficient.

The Appeals Court was reasonable in concluding that

counsel’s decision to focus efforts on cross-examination of the

Commonwealth’s expert after a fruitless search for an adequate

witness was a tactical decision that was not constitutionally

deficient. Saint-Vil, 100 Mass. App. Ct. at *2. Saint-Vil

argues that his counsel was constitutionally deficient because

counsel did not find an expert witness that could support the

defense’s theory that the burn marks must have occurred during

the month Saint-Vil did not have contact with the children.

Pet’r’s Memo 7.

Under Strickland, the petitioner must show that counsel’s

performance at trial was constitutionally deficient. See 466

U.S. at 687. The Appeals Court was tasked with reviewing

“whether counsel’s representation ‘fell below an objective

standard of reasonableness.’” Hinton v. Alabama, 571 U.S. 263,

272 (2014). Within this prong lies the “duty to investigate.”

Strickland, 466 U.S. at 690-91. In Strickland, the Supreme

Court stated that “strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Id. at 690. More specifically,

“[t]he selection of an expert witness is a paradigmatic example

of the type of ‘strategic choic[e]’ that . . . is ‘virtually

unchallengeable.’” Hinton, 571 U.S. at 275 (quoting Strickland,

466 U.S. at 690). In addition, the Supreme Court has stated

that “[i]n many instances cross-examination will be sufficient

to expose defects in an expert’s presentation. When defense

counsel does not have a solid case, the best strategy can be to

say there is too much doubt about the State’s theory for a jury

to convict.” Harrington, 562 U.S. at 111.

Before Saint-Vil’s trial, his counsel,

consulted with a medical expert . . . in an

attempt to determine . . . when the burns had

been inflicted. Because the expert “was not able

to offer a helpful opinion that would have

excluded [the petitioner] as the potential source

of the injuries,” trial counsel did not retain

the expert for trial.

Saint-Vil, 100 Mass. App. Ct. at *1. Instead of spending time

searching for an effective expert, Saint-Vil’s counsel focused

on the cross-examination of the Commonwealth’s expert witness --

and was successful in so doing. Id. In fact, during cross-

examination, the defense was able to elicit from the expert “an

opinion that the November 7, 2013 SANE photographs ‘depicted

wounds that had been healed -- had been healing at least for

five to seven days.’” Id. While this testimony does not

preclude the timeline that Saint-Vil was trying to argue, it

certainly does not forcefully support the Commonwealth’s theory

either. Given that “[t]here is a ‘strong presumption’ that

counsel’s attention to certain issues to the exclusion of others

reflects trial tactics” it was not unreasonable for the Appeals

Court to conclude that counsel’s tactical decisions not to

present an expert witness and instead focus on cross-examination

was not constitutionally deficient. Harrington, 562 U.S. at 109

(quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).

2. The Appeals Court was reasonable in concluding

that Saint-Vil was not prejudiced.

The Appeals Court was reasonable in concluding that Saint-

Vil was not prejudiced by his counsel’s decision to find an

expert witness that would testify to the theory of the defense.

Saint-Vil argues that he was prejudiced because had he put on an

expert witness who would buttress the theory already virtually

conceded by the Commonwealth, this would create “a reasonable

probability of a different result at trial.” Reply 4. As

previously stated, the Commonwealth’s expert witness

acknowledged the defense’s theory in their own testimony -- the

proposed expert would not have presented the factfinder with a

new theory. Id. Additionally, the prosecution proved the bulk

of its case through testimony of the victims who directly

inculpated Saint-Vil. Saint-Vil, 100 Mass. App. Ct. at *3.

They did not rely solely on experts to prove Saint-Vil’s guilt.

Id.

To establish prejudice, Saint-Vil must show “that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. The chances “of a different result

must be substantial, not just conceivable.” Harrington, 562

U.S. at 111.

Saint-Vil analogizes his case to Commonwealth v. Millien,

474 Mass. 417 (2016) (Gants, C.J.). In Millien, the defendant

appealed a conviction of assault and battery on a child. Id. at

418. At issue was whether certain head injuries sustained by an

infant could only be the result of violent shaking or whether

those injuries could also be the result of an accidental fall.

Id. The SJC held that “where the prosecution’s case rested

almost entirely on medical expert testimony, the defendant was

denied his constitutional right to effective assistance of

counsel” when his attorney did not retain a medical expert to

present the opposing viewpoint of a “heated debate in the

medical community.” Id.

The Appeals Court reasonably, and correctly, distinguished

Millien from the present case. The Appeals Court held that

Millien “does not stand for the proposition that a defense

attorney must consult expert after expert . . . . Rather,

defense counsel in Millien was ineffective for failing to

consult with any experts.” Saint-Vil, 100 Mass. App. Ct. at

*3. Additionally, in Millien the primary evidence was expert

testimony -- there was no victim testimony as the victim was

six-months old. Id. In this case, the primary evidence was

elicited from the victims themselves. Id. Thus, the Appeals

Court reasonably concluded that an expert would not have

provided substantial grounds of defense or have been necessary

to rebut critical expert testimony. Id. (quoting Commonwealth

v. Jacobs, 488 Mass. 597, 606 (2021)).

Considering the “totality of the evidence before [them]”,

Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012), the

Appeals Court reasonably concluded that Saint-Vil was not

prejudiced by his attorney’s decision to focus resources on

cross-examining the Commonwealth’s expert and other key fact

witnesses when the key evidence came from direct examination of

the victims rather than an expert’s opinion about burn-tissue

healing time. Saint-Vil, 100 Mass. App. Ct. at *3.

III. CONCLUSION

The Appeals Court reasonably applied Strickland in holding

that the attorney’s failure to retain an expert witness did not

constitute ineffective assistance of counsel where counsel

sought out an expert but made a tactical decision to focus

resources on cross-examination of the Commonwealth’s witnesses.

Thus, Mr. Saint-Vil’s petition for a writ of habeas corpus is

denied.

SO ORDERED.

/s/ William G. Young_

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES3

3 This is how my predecessor, Peleg Sprague (D. Mass.

1841-1865), would sign official documents. Now that I’m a

Senior District Judge I adopt this format in honor of all

the judicial colleagues, state and federal, with whom I

have had the privilege to serve over the past 45 years.