Petition for Writ of Certiorari — Jonathan Carvalho, Petitioner v. Steven Kenneway, Superintendent, Massachusetts Correctional Institution at Shirley

Supreme Court briefMar 18, 2022

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No.

IN THE

SUPREME COURT.OF THE UNITED STATES

JONATHAN CARVALHO,

Petitioner

vs.

STEVEN KENNEWAY

Respondent

ON PETITION FOR A WRTT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

APPENDIX

Jonathan Carvalho, pro se

P.O. Box 1218

Shirley, MA 01464

Phone: N/A

Case: 20-2174

Document: 00117825557

Page: 1

Date Filed: 12/23/2021

Entry ID: 6467747

¥h

United States Court of Appeals

For the First Circuit

No. 20-2174

JONATHAN CARVALHO,

Petitioner - Appellant,

STEVEN KENNEWAY,

Respondent - Appellee.

Before

Howard, Chief Judge.

Thompson and Gelpi, Circuit Judges.

JUDGMENT

Entered: December 23, 2021

Petitioner-Appellant Jonathan Carvalho appeals from the order of the district court denying .

his petition for habeas corpus, filed pursuant to 28 U.S.C. § 2254. We review the district court's

denial of habeas relief de novo. Moore v. Dickhaut. 842 F.3d 97, 99 (1st Cir. 2016). We have

carefully reviewed all of the parties' submissions, and the record. Largely for the reasons set forth

in the district court judge's Memorandum and Order dated November 10,2020, we affirm the order

denying the petition.

The judgment of the district court is affirmed. See 1st Cir. R. 27.0(c).

Petitioner-appellant has also filed a motion for appointment of counsel. " [Petitioners have

no constitutional right to counsel in [habeas corpus] proceedings." Bucci v. United States, 662

F.3d 18, 34 (1st Cir. 201U. cert, denied. 133 S.Ct. 277 (2012). After our review of petitioner's

motion and of the entire record, we are not persuaded that "the interests of justice" require

appointment of counsel. 18 U.S.C. §3006A(a)(2)(B).

Accordingly, Carvalho's motion for appointment of appellate counsel is denied.

So ordered.

ase: 20-2174

'Document: 00117825557-':, Page-,2, f; Date filed:*:!2/23/2021

Entry ID: 6467747 «

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By the Court:

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Maria R. Hamilton, Clerk

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Claudia Leis Bolgen

Jonathan Carvalho

Anna Esther Lumelsky

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• - Cdse l:18-cv-12018-NMG Document-31 ■ Filed 11/10/20 -Page 1 of 18

United States District Court

District of Massachusetts

)

Jonathan Carvalho,

Petitioner,

Steven Kenneway,

Respondent.

Civil Action No.

18-12018-NMG

• j

v ■

MEMORANDUM & ORDER

GORTON, J.

In September, 2010, a Massachusetts Grand Jury in Suffolk

County indicted Jonathan Carvalho ("Carvalho" or "petitioner")

on one count of murder in the first degree and one count of

unlawful possession of a firearm without a license.

A jury

trial was conducted in December, 2011, in Suffolk County

Superior Court ("the Trial Court") and Carvalho was ultimately

convicted on the firearm charge and on the lesser-included

offense of second-degree murder.

He was sentenced to life in

prison on the murder conviction and a concurrent term of four to

five years on the firearm conviction,

Carvalho is currently

incarcerated at the Massachusetts Correctional Institution in

Shirley.

-1AUTHENTICATED

US. GOVERNMENT

INFORMATION s'

GPO,

Case.l:18-cv-12018-NMG; Document 31 Filed,11/10/20. Page 2 of 18

. Following his conviction's/: Carvalho appealed and the

Massachusetts Appeals Court .("MAG") affirmed.

The Massachusetts

Supreme Judicial Court. ("SJC") denied Carvalho's application for

further appellate review and the United States Supreme Court

denied Carvalho's Petition for Certiorari.-

Thereafter, Carvalho

filed the instant petition for writ of habeas corpus-pursuant to

28 U.S.C. § 2254.

Carvalho seeks relief on four grounds;:;‘ (1) the Trial- Court

erred by not giving a jury instruction on self-defense;' (2) the

•Trial Court•erred’by not instructing the-jury that•reasonable

provocation can arise1 without1 physical contact; -(3) remarks by

the prosecutor" during her opening and closing argument-' violated

Carvalho's constitutional rights;' and (4) the‘trial judge

initiated- but-failed to proceed properly with a -Batson' inquiry.

I. Factual Background

In a habeas corpus proceeding instituted by a person in

custody pursuant'-to the -judgment- of a s'tate court, factual'. '

determinations made by- a state court shall be presumed to be.

correct absent clear and convincing -evidence to the contrary.. 28

U.S.C. § 2254 (e)'(l)

The Court therefore looks to the facts

found by the Trial Court' as summarized on appeal by the. MAC:

.Shortly after 11:00 A.M. on August .10, 2010,' Hugo

Valladares left work and returned to. his apartment on the

first floor of 230 Central Avenue in Chelsea.

The

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Case 1M8-CV-12018-NMG:; Document 31 Filed-11/10/20' Page 3 of 18"

[petitioner] ,• • a• childhOod'-'f fiend of: Valladares, was at .the

[Petitioner] had been dating Daisy Lopez for

apartment.

several months.. Lopez's • former boyfriend,Emanuel Flores, < -•

was friends with the victim, Luis Rodriguez. The victim's

girlfriend,'Anmeris Burgos, lived'on the-second floor of

the same building as Valladares. The [petitioner] and

Emanuel'Flores had been;involved in a dispute .over Lopez, i

which had led to several prior physical altercations. The-victim had also become involved in this dispute,.-resulting :

m a "beef" between the victim and the [petitioner], The

[petitioner]- had told Valladares- that he and the victim

were going to "squash the beef," or settle the dispute,

through a fist fight, The victim had also told Valladares

that he and the [petitioner] were going to fight in order

to; settle the "beef," . ...

On that morning,, when Valladares opened the door to his

apartment and found the [petitioner] inside, the

[petitioner] told Valladares that, the-, victim's . car wasoutside,. He asked Valladares to go upstairs to Burgos's

apartment and get, the victim, so that he and- the .[petitioner] could "scrap it out." The victim eventually

met.-the [petitioner] in the parking lot outside of 230

Central Avenue, Geraldo Flores, who witnessed the

altercation from the other side-of the parking lot,

testified that the two walked toward each other and met in

the middle of the-parking-,.lot.- The victim, put his fists up

• while the two were circling one another. The victim was

saying "come on,' let's go" and advancing on the

[petitioner] while the [petitioner] backed away- and said,

"hold on, relax" and "let me talk to you."

As they moved closer to Geraldo, the victim still coming

toward the [petitioner] ,. Gera-ldo -turned to- walk away, Two •

seconds later, he heard the first gunshot. Geraldo turned

back to face- the pair..a-nd saw. the.-[petitioner] , about four

yards away, pointing a gun at the victim as the victim,

about ten yards away, ran back toward the. door to 230

Central Avenue, The [petitioner] fired a second shot,

hitting the victim in. the back and causing him to stumble .

into the door, A third shot was fired as Geraldo ran from

the ;scene. The victim, who was unarmed, suffered a total' of three gunshot wounds. The wound to his back proved

fatal, and he died shortly after being taken to the . .

hospital.' A jury convicted the [petitioner] of murder in

' the second degree and possession of a firearm without a

license.

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Case l:18-cv-12018-NMGT;Documenfc31\; Filed: 11/10/20 . Rage 4 of 18

Commonwealth v. Carvalho/- 90 Mass'.; App.. Ct. -.1110, 2C1'6 WL •

5955949, at *1

II.

(2016)

(footnotes . omitted) .

Analysis

A. Legal Standard

To jgg-cure federal habeas relief in the wake of the

Antiterrorism and Effective. Death Penalty Act’ of 1996’ ("AEDPA") ,

a petitioner must demonstrate that the"iast reasoned’state

court decision" in the case

resulted in a decision that was contrary to, or involved an

- unreasonable- application--of, clearly established- Federallaw, as determined by the Supreme Court of the United

States;- or 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>; see also Janosky.-v.-. St. ■ Amand, 594, F-; 3d-39,

47 (1st Cir. 2010)

{''Because the: [SupremeJudicial Court]

summarily denied further appellate: review, we look to- the. -last •

reasoned state-court decision---in this,, case,. the - [Massachusetts Appeals Court's] rescript.").. Here, the last-reasoned decisionof a state.court is. the decision of the.MAC affirming the.Trial

Court's conviction of Carvalho.. .

• When determining' what constitutes "clearly established

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

States ("the Supreme Court"), courts are to look only to the

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Case'l:18rcv-I2018-NMG Document 31. ..Filed-11/10/20 Page 5.of 18

holdings, .'and..not dicta, /of. the -Court' s : decisions.

Woods v. Donald, 575 U.S.'312, 316" (2015)./

The Supreme Court has stated that the "contrary to" and ;

"unreasonable application" clauses of § 2254 ha.ve "independent

meaning," thus providing two different avenues for a petitioner

to obtain relief. Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state-court's adjudication, will be "contrary to" clearly

established Supreme Court precedent if it either "applies a rule

that contradicts.the governing law set forth" by the Supreme

Court. or considers facts that-are "materially.,-indistinguishable"

from a Supreme.^ Court decision and arrives at a different conclusion. Id. at 405-06.

On- the-'other. hand,la state .court's. .decision ■ will constitute

an "unreasonable application"- of clearly established Supreme

Court precedent if -it "identifies-the-'1 correct governing-legal....

principle"'from the'Supreme Court:but "unreasonably'applies thatprinciple';to the- facts’- ‘of the prisoner's case'. " 'Id. at- 413. '

Consequently,-- a federal habeas court may not grant relief simply

because that court concludes in its independent judgment that

• •

the decision of the state court applied clearly established

federal law erroneously,or incorrectly. Id. at 411.

It must

further conclude that such an application was unreasonable. Id.

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Case l:18-cv-12Q18-NMG Document-31 Filed 11/10/20 Page.6 of 18

A ic

B. Application-.

1; Jury Instructions

.. . -

Carvalho contends that the jury instructions at trial were

erroneous for two reasons.

First, he'avers that the Trial Court

should have instructed the jury regarding self-defense,

Second,

he complains that the Trial Court failed to instruct the.jury

that reasonable provocation does not require physical contact.

Carvalho contends that the Trial Court's rejection o'f his

proposed instructions violated his right to’ ;due process. ' The

Commonwealth responds that the MAC did not unreasonably apply

clearly esta-bl-ished' law in finding that petitioner was not

entitled to either instruction.

A federal habeas court must accept a state'court's rulings

on state law issues'. Rodriguez-, v.: Spencer, • 41.2, F. 3d 29, :37 (1st

Cir. 2005). (citing Estelle v. McGuire, - 502 U.S.: 62,. 67-- (1991) ) ;

For that reason, improper -jury instructions seldom- form, thebasis for habeas relief. Niziolek- v. Ashe,

(1st Cir. 1982).

694 F. 2d 282., .-290-

It is.not enough-that a jury-instruction be-

deemed'"undesirable, erroneous,

. universally condemned" or:

noncompliant with state model instructions, Gaines v. Matesanz,..

,_272 F. Supp,. 2d 121, 131

(D. Mass..,-2003-)

. Naughten, 414 U.S. at .146 (1973)

(quoting Cupp v.-

(internal quotation marks

omitted)); see also Estelle, 502 U.S. at 71.

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Federal habeas

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Case I:18rcv>1201‘8-NMG ‘ Documen't 31- -Filed 11/10/20 Page-7 of 18-

relief is warranted only when an instruction is deemed so"

erroneous that it violates a criminal.defendant's federal right

to due process pursuant to the Due Process Clause of the

Fourteenth Amendment. Niziolek, 694 F. 2d at 287 -(holding "errors

that render .a fair trial impossible will be cognizable in

federal habeas corpus, because such errors violate the due

Individual instructions must be examined in. _

process clause")

the context 'of the whole jury charge,rather than in isolation

and petitioner must show "the ailing instruction by itself so

infected the. entire trial that the resulting conviction viplates ..

due process." Estelle,.502 U.S. at 72; see also Waddinqton v.

Sarausad, 555 U.S. 179, 191 (2009).

i. Failure to Instruct on Self-Defepse

Carvalho contends-- that: ■the: Trial. -Court' s failure to

instruct- the'jury-on? self-defense- violates the principle

..announced by .the Supreme■ Court that a" defendant "is entitled to

an instruction as-'to' any recognized defense for which .-there

exists-evidence sufficient -for a'reasonable' jury to find in his

favor." Mathews v. United States, 485 U.S. 58, 63- (1988).

asserts that he reasonably; believed-- that he was' in' imminent

danger of serious- bodily harm, because Mr. Rodriguez was the

aggressor and that he had tried: to avoid a physical

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Case l:18-cv-12018-NMG :.Document 31 Filed 11/10/20 Page 8 of 18j

confrontation prior to his. use .of., force. .As a result, Carvalho

submits that he was entitled, to an instruction on self-defense.

Carvalho'.s assertions are.unavailing.

matter, the First Circuit'Court of. Appeals

As a preliminary

("the First Circuit")

has rejected the view that the.Mathews principle is clearly

established .federal law for purposes of federal habeas review.

See Hardy v. Maloney, 909 F.3d.494, 500. (1st Cir. 2018)

(noting

that the Supreme C.our.t has not applied the language in Mathews

in any other case or to any defense "other than the entrapment

defense at-stake.in. Mathews" and describing the statement as

"dicta, not a holding")

Therefore, this Court cannot conclude

that the MAC acted contrary to clearly established federal law

based on the principle in Mathews.

Even if the First Circuit did consider the language in

Mathews to be clearly established federal law, a defendant is

only entitled to an instruction as to a defense if a reasonable

jury could find in his favor based on the evidence. Mathews, 485

U.S. at 63.

The MAC determined, however, that the evidence

viewed in the light most favorable to Carvalho indicated that he

was not entitled to a self-defense instruction because he did

not "use[] all reasonable, available means of retreat" before

using force, as required by Massachusetts law. See Carvalho,

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Case l:18-cv-12018‘NMG Document 3i- Filed 11/10/20 -Page-9-of 18

2016 WL 5955949; ' at *2' (citing- Commonwealth v-. Harrington, - 37 9 Mass. 446,''450''(1980) } .

The MAC" emphasized that

■

the" altercation took place in the middle of" the day, in a

parking lot abutting a public street. There was no

evidence that'the defendant’s means of' egress'was blocked,

or that he, armed with a gun, could not have simply run

away from the victim's -raised fists.'

Id.

Carvalho does' not dispute that the escape options discussed

by the MAC were''available to him.

-V-'

Instead, he- contends' that -he -

did sufficiently retreat' by backing away from Mr. Rodriguez and

attempting to resolve the matter" verbally.

'The' MAC^s

determination to the' contrary,' However, was hot unreasonable'.

Furthermore, the Trial-Court found that Carvalho had shot

the victim in the back as he fled and that the shot to the back

was the cause of- death.

Accordingly, Carvalho has not shown

that the refusal to'instruct'the jury on' self-defense "so

infected the entire trial that the resulting conviction violatesdue process." Cupp, '414 U-.S. at 147.

ii. Erroneous Reasonable Provocation Instruction

Carvalho also avers that the instructions given to the jury

were erroneous because they did.not specify that reasonable

provocation,, which negates the malice necessary for a defendant

to be found guilty of murder, does, not require physical contact.

The Trial Court instructed the jury using the thenapplicable model instruction on reasonable provocation, which

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Case l:18-cy-12018-NMG Document 31 Filed 11/10/20 . Page 10 of 18

stated that "physical.contact,.even a single blow, may amount to

reasonable provocation." Carvalho, 2016 WL 5955949,.. at *2

. (quoting Model Jury Instructions on Homicide 29 (1999)).

Standing alone, that instruction may be misleading because a

finding of reasonable provocation does not require physical

contact. See, e.g. Commonwealth v. Fortini,

701, 706 (2007)

68 Mass. App. Ct..

(holding that a defendant was entitled to a

reasonable provocation instruction when the "unexpected and

aggressive approach" of the victim could have caused a

reasonable person in defendant's position to feel "an immediate

and intense threat").

In fact, the 2018 edition of the

Massachusetts Model Jury Instruction on reasonable provocation

was amended to state explicitly that "[r]easonable provocation

does not require physical contact, " the-' precise instruction "

requested by petitioner.

"I*

Individual jury instructions are not to be'viewed in

isolation, however, and instead "must be viewed in the context

of the overall charge." Cupp, 41'4 XJ'.S. at' 146-47.

The'Trial i

Court provided a' second instruction" to the jury that defined

reasonable provocation as that

which would likely produce [in] a reasonable person such a

,state of anger, fear, passion, fright and nervous

excitement which would have overcome his capacity for

reflection and restraint and did actually produce, such a

state of mind of the defendant.

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Case l:18-cv-12018-NMG' Document 31 'Filed 11/10/20 ‘Pagell'of 18 ‘

Carvalho, '2016 WL 5955949," at" *3'. " The additional' instruction

included no reference' to physical-contact as a prerequisite for

reasonable provocation.

As "a result ,''the MAC held'that the

additional instruction cured any potentially incorrect

understanding created by the previous instruction and found that

there was no possibility that the jury interpreted the

instructions as Carvalho suggested. Carvalho, 2016 WL 5955949,

at *3.

.Carvalho has not met his burden of proving that the

. MAC'S determination was unreasonable.

Therefore, petitioner's

habeas challenge, on the basis of improper jury instructions will

be denied.

2. Prosecutorial Misconduct

Carvalho-next argues that habeas relief should be granted

because comments made by the prosecutor impermissibly appealed

to jurors' sympathy,

Specifically, he cites five instances

during the government's opening and the closing argument in

which the prosecutor noted that_the victim had learned that he

was to become a father on the same day he was killed.

Petitioner contends that those comments prejudiced.the jury to

such a degree that he was deprived of due process.

Federal habeas relief is rarely granted based on comments

made by prosecutors because the issue is limited to "the narrow

one of due process, and not the broad exercise of supervisory

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power." Donnelly v. DeChristof oro~,: 41'6 U.S.

637,- 642 (1974).'

For relief to be granted, "it is^not enough that the

prosecutors7 remarks were undesirable or even universally

condemned." Darden ~v. Wainwright, 477 U.S.. 168, .181 (1.986)

(internal quotation omitted) . ‘ Convictions can be reversed based

upon the comments of a prosecutor only if those comments "so

infected the trial with unfairness as to make the resulting

conviction a denial of due process." Id.

The statements

therefore must be viewed in the' context of the entire trial.

United States v. Young, 470 U.S. 1, 11 (1985)

Here, the MAC found that the prosecutor's comments "were

within the scope of permissible argument" because they helped

establish why.the victim- was present at the apartment; building

that day. Carvalho, 2016 WL: 5955^949, at- *3.

Furthermore,., even

if the. references to the victim7s-expectant- fatherhood did.have

the power to influence the jury, the Trial Court provided a

curative instruction noting that comments made by the prosecutor

during opening and closing statements are not evidence to'be

considered by. the■jury. ■ The petitioner conceded as'much'in his

memorandum in-support of:his petition

Viewing the comments in light of the totality of the

evidence of Carvalho's guilt presented at trial, the MAC'S

finding that the prosecutor's comments did not amount to a

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Case l:18-cv-12018-NMG , Document 31 .Filed 11/10/20 . Page 13 of 18

violation of .due process- is a reasonable application of the

•Supreme Court's pronouncement in Darden.

•Accordingly, habeas

relief will- not be granted on that, ground..

, .

3. .IBatson Violation

Finally, Carvalho contends that he is entitled to habeas

relief because the government improperly exercised peremptory

challenges in a discriminatory manner during jury selection.

The Supreme Court held in Batson v. Kentucky, 476 U.S. 79

(1986) that excluding jurors on the basis of race violates the

Equal Protection Clause of the Fourteenth Amendment.

'To prove a

Batson violation, courts have applied a three-pronged test:

First, a defendant must make a prima facie showing that a

peremptory- challenge 'has been exercised' on the-basis of

race; second, if that showing has been made, the

•prosecution must offer’a race-neutral basis for striking

the juror in question; and third, in light of the parties’

submissions, ' the trial court-must determine whether the -■

defendant has shown purposeful discrimination.

Davis v. Ayala, 576 U.S. 257, 270 (2015).

To., establish a prima facie..case: of discriminatory

motivation under. the-, first prong of Batson, a- petitioner must

show that the facts "raise an inference that the prosecutor-used

[peremptory challenges] to exclude the veniremen from the petit

jury on account of their race." Batson, 476 U.S. at 96.

Court in Batson directed courts to "consider all relevant

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The

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Case l:18-cv-12018-NMG Document 31 Filed 11/10/20 >Page 14 of 18

circumstances" in determining whether a petitioner has met his

or her burden. Id;

When a petitioner seeks federal.habeas.relief based upon a•

B_atson challenge, courts must give significant deference to the

findings of the trial judge.

In addition to the presumption of

correctness afforded to all state, court factual findings under

28 U.S.C. § 2254(e)(1), determinations of trial judges with

respect to peremptory strikes are entitled ,to particular

deference because they are in the best position "to evaluate

context, nuance, and the demeanor of the prospective jurors and

the attorneys." Caldwell v. Maloney, 159 F.3d 639, 649 (.1st Cir.

1998).

Petitioner asserts that, during jury empanelment, the Trial

Court judge engaged.in a sua sponte inquiry regarding the

prosecutor's peremptory challenges under Batson's first prong

but erroneously failed to proceed to the second step of the

analysis.

He cites an exchange between the trial judge and

counsel in which the judge inquired about whether the government

had challenged any Hispanic jurors.

The Commonwealth responds

that the MAC found that the trial judge made no inquiry into the

motive behind the' challenges and thus had not invoked a

challenge under the state law equivalent of Batson, Commonwealth

v. Soares, 377 Mass. 461, 490

(1979) .

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Case l':18-cv-120i'8-NMG ’ Document 3i Filed 11/10/20 Page 15 of 18

■ Commonwealth proffers' that, even'if the trialJjudge' s'comments

are considered to be an implicit Batson inquiry,:he proceeded to

find no:prima-facie discrimination.

As a preliminary matter, the brief, ambiguous exchange

between the trial judge and the parties did not constitute a

Batson.inquiry.

At no point during that colloquy did the judge

seek any explanation from the prosecutor or give any. indication

that he thought that any strike was improper.

Petitioner offers

no clear and convincing evidence that rebuts the MAC's factual

finding that the conversation did not constitute a Batson

inquiry..

Consequently, this Court will not discredit the

holding of the MAC on this issue.

Relief may still be warranted on habeas review

notwithstanding a trial judge's' failure'to initiate a Batson

inquiry if a prima facie'showing of discrimination was in fact

. made. See Sanchez v. Roden, 753 F.3d 279, 288 (1st Cir. 2014)

(ordering the district court to complete a Batson inquiry even

though no such inquiry had previously been initiated).

Carvalho has not, however, met his burden of making the

requisite prima facie showing,

Here, unlike in Sanchez, defense

counsel did not object to any of the government's peremptory

strikes and did nothing more than repeat comments made by the

trial judge.

A trial court is under no obligation to conduct a

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ft .a

Case l:18-cv-12018-NMG - Document 31 Filed 11/10/20 Page 16 of 18

Batson inquiry under;such - circumstances. See United:States'v. v

Snyder-/

658 F.App'x.; 859, 861.. (9th Cir. 2016) -'(holding that the

trial judge's failure to initiate a sua sponte Batson inquiry

was not erroneous when defense counsel did not request an

inquiry into the government's reason for.a peremptory strike).

Under these circumstances, the MAC's finding that the peremptory

challenges were not based on discriminatory intent is a

reasonable application of clearly established federal law

articulated in Batson and its progeny.

Therefore, habeas relief

will not be granted based upon that ground.

C. Certificate of Appealability

1. Legal Standard

Section 2253 (c) of Title 28 of. the. United .States. Code

provides that a Certificate of: Appealability ("COA") may issue ■

"only if. the . applicant has made, a substantial-showing.ofrthe ;

denial of a constitutional right," 28 U.S.C. § 2253(c)(2).

In-

order to make a "substantial-showing", a petitioner seeking a

COA must demonstrate that

reasonable jurists'could debate whether (or, for that

matter, agree that) 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

(2000) .

To meet the

debatable among-jurists-of-reason standard, the petitioner must

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{

prove "something more than the absence; of frivolity or.the;,

existence- of-mere good faith-. "' Miller-El v-. Cockrell, 537 U.S.

322, 338 (2003)

2. Application

Petitioner has not made a substantial showing that-the

exclusion of an instruction on self-defense, the. prosecutor's

comments about the'victim's expectant fatherhood or the

prosecutor's peremptory strikes denied him a constitutional.

right warranting habeas relief.

Petitioner has, however, made a substantial showing that

reasonable jurists could find that the MAC erred in finding that

the jury deliberated with the understanding that physical

contact was-not required for -reasonable - provocation - and-that■

therefore the jury-'instructions ■ were misleading'. - When hearing

the general instruction' that- "any physical contact, even a

single blow, ' may amount to reasonable-provocation,w Carvalho,

2016 WL- 5955949-, at -*2., ' outside--the ■ context- of the second,

instruction given in this case, a jury might consider the

general instruction controlling.

Massachusetts courts appear to

have recognized that ambiguity, having amended the instruction

to confirm that physical contact is not a prerequisite.

' Accordingly, a Certificate of Appealability should issue on

Carvalho's claim that an erroneous instruction on reasonable

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- provocation was given to the- jury in violation of his

constitutional right.

......

ORDER

For the foregoing reasons, the petition for writ of habeas

..corpus of Jonathan-Carvalho (Docket No. 1) is DISMISSED but the

Court: sua sponte. enters a certificate of appealability with

respect to petitioner's claim as to the jury instruction on

reasonable provocation.

So ordered.

/s/~ Nathaniel M. Gorton

Nathaniel M. Gorton - •

■United States District "Judge'

•»

Dated November 10, 2020

;

-18-

Com. v. Carvalho, 90 Mass.App.Ct. 1110 (2016)

60 N.E.3d 1198

90 MassApp.Ct. mo

Unpublished Disposition

NOTICE: THIS IS AN UNPUBLISHED OPINION.

Appeals Court of Massachusetts.

COMMONWEALTH

Jonathan CARVALHO.

No. 13-P-1594.

. October 14, 2016.

By the Court (EAFKER, C.J., COHEN, GREEN, MASSING

& SACKS, JJ.1),

MEMORANDUMAND ORDER

PURSUANT TO RULE 1:28

*1 In the defendant's appeal from his conviction of murder in

die second degree, he argues that (1) the trial judge committed

numerous errors in her jury'instructions, (2) die prosecutor

improperly appealed to juror sympathy during her opening

and closing arguments, (3) his motion to suppress certain

statements he made to the police should have been allowed,

and (4) the judge should have required a reason for one of

the Commonwealth's peremptory challenges of a potential

juror. 2 We affirm.

Background. We recite die facts in the light most favorable to

the defendant in order to determine whether he was entitled

to jury instructions on self-defense. See Commonwealth v.

Pike, 428 Mass. 393, 396 (1998). We reserve further factual

background for the discussion as required to address the

remaining issues raised by the defendant.

altercations. The victim had also become involved in this

' dispute,’ resulting in a “beef’ between- the victim and the

defendant.' The defendant had told Valladares that he and the

victim were going to “squashthe beef,” or settle the dispute,

through a fist fight. The victim had also told Valladares that

j he and the defendant were going to fight in order to settle die

“beef.”

On that morning, when Valladares opened 1he door to his

apartment and found die defendant inside, die defendant

told Valladares that the victim's car was outside. He asked

Valladares to go-upstairs to Burgos's apartment and get the

victim, so that he and the defendant could “scrap it out.” The

victim eventually met die defendant in the parking lot outside

of 230 Central Avenue: Geraldo Flores,3 who witnessed the

altercation from the other side of the parking lot, testified

that the two walked toward each other and met in the middle

of the parking lot. The victim put his fists up while the two

were circling one another. The victim was saying “come on,

let's go” and advancing on the defendant while'the defendant

backed away and said, “hold on, relax” and “let me talk to

you.”

As they moved closer to Geraldo, the victim still coming

toward the defendant, Geraldo turned to walk away. Two

seconds later, he heard the first gunshot. Geraldo turned back

to face the pair and saw the defendant, about four yards

away, pointing a gun at the victim as the victim, about ten

yards away, ran back toward the door to 230 Central Avenue.

The defendant fired a second shot, hitting the victim in the

back and causing him to stumble into the door. A third shot

was fired as Geraldo ran from the scene. The victim, who

was unarmed, suffered a total of three gunshot wounds. The

wound to his back proved fatal, and he died shortly after

being taken to the hospital. A jury convicted the defendant

of murder in the second degree and possession of a firearm

without a license.

*2 Discussion. 1. Jury instructions. The defendant takes

issue with various aspects of the judge's instructions to the

jury, which included the charges of murder in the first degree,

murder in the second degree, and voluntary manslaughter. We

consider in turn each of the defendant's claims of error.

Shortly after 11:00 A.M. on August 10,2010, Hugo Valladares

left work and returned to his apartment on the first floor of

230 Central Avenue in Chelsea. The defendant, a childhood

friend of Valladares, was at the apartment. The defendant had

been dating Daisy Lopez for several months. Lopez's former

a. Self-defense. The defendant contends that it was error for

boy friend, Emanuel Flores, was friends with the victim,

the

judge to deny his request for a self-defense instruction.4

Luis Rodriguez. The victim's girl friend, Anmeris Burgos,

In a case such as this, a defendant who employed deadly

lived on the second floor of the same building as Valladares.

force is entitled to a self-defense instruction if the evidence

The defendant and Emanuel Flores had been involved in a

dispute over Lopez, which had led to several prior physical . . warrants “at least a reasonable doubt that the defendant: (1)

.. .. ,vi-. S-- ”':

•*s-.

Com. v. Carvalho, 90 Mass.App.Ct 1110 (2016)

60 N.E.3d 1198’'

had reasonable ground to believe and actually did believe that,

he .was in imminent danger of death or serious-bodily harm,from which he could save himself only by using deadly force,

(2) had availed himself of all proper means to avoid physical

combat before resorting to the use- of deadly force, and (3)

used no more force than was reasonably, necessary in all the

conclude-that the victim’s -approach constituted reasonable

provocation.

, *3

Reading the instructions as a whole, see

fe*

L ' Commonwealth v. Jiles, 428 Mass. 66, 71 (1998), we do

not believe reasonable jurors would have understood that

circumstances of the case.”

Commonwealth v. Harringt on,

they could not find reasonable provocation in the absence of

379 Mass. 446,450 (1980).

physical contact. The judge's instructions stated generally that

reasonable provocation is that “which would likely produce

The defendant was not entitled to a self-defense instruction,

[in] a reasonable person such a state of anger, fear, passion,

because the evidence, 'viewed in the light most favorable

fright and nervous excitement which would have overcome

to him, did not raise even the possibility that he used all

his capacity for reflection and- restraint and did' actually

reasonable, available means of retreat before resorting to the

produce such a state of mind ofthe defendant.” This closely

use

. _ i of force. Even assuming that the victim was the aggressor

tracked the model instructions then in.effect. See Model Jury

and the defendant reasonably feared imminentrisk of death or. ' Instructions on Homicide'28. This avoided any possibility

serious bodily harm, the evidence is uncontroverted that the

that the jury would reasonably have interpreted the phrase

altercation took place in the middle of the day, in a parking

“physical contact” in the manner suggested by the defendant.

lot abutting a public street. There was no evidence that the

The case the defendant relies upon,

Commonwealth v.

defendant’s means of egress was blocked, or that he,’armed

Morales,

Mass.App.Ct.

526,

531-533

(2007), is not on

with a gun, could not have simply run away from the victim's

point,

there

this

court

held

error

for

the trial judge to

flj-^

raised fists. See \Commonwealth v. Curtis, 417 Mass. 619,

have expressly instructed the jury that physical contact was

required in order to find reasonable provocation.

632 (1994);• I'l Commonwealth v. Berr)>, 431 Mass.‘-326, 335 •

(2000); f. ."' Commonwealth v. Espada, 450 Mass. 687, 693

(2008).

-Necessity is the touchstorie of self-defense. “The right of self-'

defence does not accrue to a person until he has availed-all

c. Sudden combat. In her instructions on mitigating

circumstances, the judge instructed the jury that “[sjudden

combat involves unplanned combat” The defendant takes

issuc with tee

for ^ f]rst ^ Qn pcal

arguing that neither the 1999 nor the 2013 versions of the

proper means to avoid physical combat.” 1 Commonwealth

Model Jury Instructions on Homicide includes the word

V. Kendrick, 351 Mass. 203, 212 (1966). See Pike, supra at

“unplanned.” He argues .that'this term led the jury to believe

399 (defendant must use every available means of escape ' that combat could not be sudden if, as in this case, the meeting

available before acting in self-defense). Because the evidence,

at which the combat took place was planned.’ We disagree,

viewed in the light most favorable to the defendant, does not

Nothing in the judge's instructions suggested that “unplanned

show that he was entitled to use self-defense, the trial judge • combat” could not occur at a'meeting that was planned. The

did not err in failing to so instruct the jury.

jury were free to consider whether the alleged assault of the

defendant by the victim was “sudden” so as to mitigate the

b. Reasonable provocation. Defense counsel'made a pretrial

charge-from murder to voluntary manslaughter.

• request for an instruction informing the jury that heat of

passion upon reasonable provocation may arise from the

Alleged prosecutorial misconduct. The defendant argues

victim's “aggressive approach,” which need “not include ... ' that a new trial is required because the prosecutor improperly

that the victim struck a blow.” The trial judge instead gave

played on the jury's sympathy and emotion during her opening

the model jury instruction on reasonable provocation, which

an^ closing statements by repeatedly referring to the fact that

states that “physical contact, even a single blow, may amount

1116 ^ctim was an expectant father. He argues that the error

to reasonable provocation.” Model Jury Instructions on

was compounded by “the constant presence in the courtroom '

Homicide 29 (1999). The defendant objected and mainfaing

°f & picture of the deceased, as well as the crying and angry

on appeal that the instruction improperly conveyed to the

family members of the deceased exhibiting themselves .to the

jury that physical contact was required in order for them to

Jury venire and the jury.” He contends that the judge erred

in failing to give a curative jury instruction regarding the'

WE5TLAW <§> 2.021 Thomson Reuters. No claim to original U.S. Government Works. '

• 2

• J.S

*•

Com. v. Carvalho, 90 Mass.App.Ct. 1110 (2016)

60 N.E.3d 1198

—

“

“spectacle” of family members'in the courtroom -combined. '

with, the prosecutor's comments.

statements, which were “spontaneous and volunteered” by

the defendant' of-his' own accord. She thus concluded that the '

officers were not required to provide Miranda warnings.

Among the challenged conduct, only' the - prosecutor's

own comments” are attributable to the Commonwealth.

Furthermore, defense .counsel objected only to the

prosecutor’s opening , statement. We discern no error, , as the

prosecutor's comments were supported by testimony, and

within the scope of permissible argument. “The prosecutor

■ is .entitled -to tell the jury something of the person whose.

The defendant'contends’that, under art. 12' of the

Massachusetts Declaration of Rights, the statements should

have been suppressed because die atmosphere of “sustained •

and prolonged custody in close quarters with two officers

was “presumptively coercive” and Miranda warnings were

life [has] been lost.in order to humanize die proceedings.”:

Commonwealth y. Jiodiiguez, 437 Mass. 554, 566 (2002)

(quotation omitted). Her three comments that;the victim was

about to become a.father again (two of which described the

anticipated testimony of two prosecution witnesses) did not

rise.to the level of-improper appeals to sympathy promotion. •

to Commonwealth v. Torres, 424 Mass. 792, 796-797 (1997)

(Miranda' doctrine safeguards defendant's ’ rights ' during

custodial interrogation,' not mere custody itself). Custody

during a long period of transport does not itself require

Contrast fc Commonwealth v. Santiago, 425 K^ass. 491,494—.

495 (1997) (twelve references tovictim's being.seventeen and

pregnant); IP Commonwealth v. Rosa, 73 Mass.App.Ct 540,

545 (2009) (nineteen'references to victim's being a firefighter

or'being on fire engine)'.'See Mass. G. Evid. § 1113(b)(3)

to prosecutorial misconduct, we have considered the factors

bearing on' whether such misconduct requires reversal, see

Santiago, supra at 500, and' concluded that reversal would not

be warranted here.'

i. v

*4 3. Miranda issues'. Shortly after the shooting, the

defendant boarded, a bus bound for Florida. He .was

apprehended en route in Savannah, Georgia, and held at the

county jail in,that city. A Massachusetts State police trooper

and adetective flew to Savannab'the following day. They took

custody of the defendant, transported him to the Savannah

airport, and traveled with him by plane to Atlanta.. The three

• then boarded a connecting flight from Atianta to Boston.

During the trip, the defendant made numerous statements to

both the detective and' the trooper, some of which implicated

him in the crime. The defendant was not advised of his

Miranda rights until he was booked at the Chelsea police

department following his arrival in Boston.

The defendant filed a pretrial motion to suppress all of his

statements made during the trip. The motion judge denied

the motion, concluding that although tire defendant was

in custody, none of his statements between Savannah and

Boston was the product ofpolice interrogation. She found that

the detective and the trooper did not engage the defendant

in conversation or do anything to provoke or elicit his

required. We disagree. Miranda warnings were not required

simply- because the defendant was in police custody. See

thatthe defendant be Mirandized. See t.'" Commonwealth v.

Figueroa, 56 MassApp.Ct 641, 645 (2002). We decline the

de^n^antf s invitation to expand the protections afforded by .

art. 12 by holding that Miranda warnings are required under

these circumstances.

A . Peremptory challenge to juror no. 3. The Commonwealth

exercised six peremptory challenges to prospective jurors,

including juror no. 3, who was Hispanic. The judge then

asked, “[A]re there any other [people] of Hispanic descent

still on die jury?” The prosecutor did not know the answer, and

neither she nor the judge pursued the matter further. Defense

counsel, did not object. Relying on I? Commonwealth v.

Maldonado, 439 Mass. 460, 463 n.5 (2003), the defendant'

claims on. appeal that the judge's sua sponte inquiry into the

challenge was, in effect, a prima facie finding of impropriety

injury selection under l Commonwealth v. Soares, 377■

Mass. 461,-490, cert, denied, 444 U.S. 881 (1979), requiringthe judge to ask the prosecutor for an explanation. We

disagree.

*5 In Maldonado, unlikein this case, the judge,'on her

own initiative, “demanded a reason” for the prosecutor's

challenge to the only black potential juror. 1* 439 Mass, at

461. The Supreme Judicial'Court held that the "judge's sua

sponte inquiry included an implicit finding under Soares that

a prima facie case of discrimination was made. See fid at

463 n.5. Here the judge made no such inquiry and thus no .

such implicit finding. There was no error.

Judgments affirmed.

:.rri f. «

.x • -v-.

fdic

r. "*>•

Com. v. Carvalho, 90 Mass.App.Ct 1110 (2016)

60 N.E.3d 1198

All Citations

90 Mass.App.Ct. 1110, 60 N.E.3d 1198'(Table), 2016 WH. ! ’ '

5955949

' ■

Footnotes

The panelists are listed in order of seniority.

The defendant was also convicted of carrying a firearm without a license. He makes no separate argument

regarding that conviction in this appeal.

Geraldo Flores is of no relation to Emanuel Flores. Because they share a surname, we-refer to them using

their first names.

The defendant concedes that he used excessive force, but argues that he was nevertheless entitled to an

instruction on self-defense employing excessive force.'

End of Document

.■ .

v..-:

. . U4T-'-'

' !•

Case l:18-cv-12018-NMG Document 32 Filed 11/12/20., Page.l of 1 :

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Jonathan Carvalho

Plaintiff

CIVIL ACTION

NO. 18-CV-12018 - NMG

Steven Kennewav

: Defendant

ORDER OF DISMISSAL

Gorton. D. J.

In accordance with the Court's Memorandum and Order dated November 10,

2020. it is hereby ORDERED that the above-entitled action be and hereby is dismissed.

By the Court

11/12/2020

Date

/s/ Leonardo T. Vieira

Deputy Clerk

-A

8/3/99-'•

• MODEL' JURY-INSTRUCTIONS ON HOMICIDE .

INTRODUCTION

THE- ELEMENTS OF MURDER

. 4

FIRST DEGREE MURDER .

. 6

DELIBERATE PREMEDITATION

II•

EXTREME ATROCITY OR CRUELTY

HI . FELONY .MURDER (FIRST DEGREE)

15 ‘

SECOND DEGREE MURDER

FELONY MURDER (SECOND'DEGREE)

’

For murder cases in which voluntary manslaughter is also

covered. . ...... .

THE ELEMENTS OF • MANSLAUGHTER...................

VOLUNTARY MANSLAUGHTER

V.. »:• - "34 '

Felony Vehicular Homicide

■: . . 39.

Misdemeanor Vehicular.Homicide .

LACK OF CRIMINAL- RESPONSIBILITY .

SELF-DEFENSE

- : 31

32.

INVOLUNTARY MANSLAUGHTER

VEHICULAR HOMICIDE- .

■

27-

• -3947 ; .

• . : 49; -

54-,

SUPPLEMENTAL INSTRUCTIONS,-. ...

second degree.

If, however, after your consideration.of all of.,

the evidence, you find that the Commonwealth has not proved any

one of these elements beyond a reasonable doubt, you must not

-find the defendant guilty of felony murder in the second-degree.

. ^Supplemental Instruction 9 - Unanimity Instruction

pp. 63 -64

The degree of murder is to be determined by you the jury.

* '

i •

*•

■

For murder cases in which voluntary manslaughter is also

covered.

In order to prove that' the defendant acted with malice, the

Commonwealth must prove beyond a reasonable doubt the absence of

certain mitigating circumstances.

Mitigating circumstances are

(

circumstances which lessen a defendant's culpability for an act.

Both the crimes of murder and voluntary -manslaughter require

proof of an unlawful killing, but the killing-may be the- crime'of

voluntary, manslaughter if it occurred under mitigating;

circumstances so that, the- Commonwealth cannot prove beyond a

reasonable doubt that the defendant acted with malice.

In-order

to:obtain a conviction of murder, the Commonwealth must prove

beyond a reasonable doubt the absence of this/these mitigating

circumstance.[s] .

Based on the evidence in this case, the

mitigating circumstance[s] that you must consider is/are:

(1,

heat -of passion upon a reasonable provocation;)

(2.

heat of passion induced by sudden combat;)

(3. • excessive use of force in self defense or in defense of

another)

Let me explain (this)

(these) mitigating circumstance(s) .

• S-V,

Afo

Heat of.Passion Upon Reasonable.. Provocation.......

Heat of; passion includes the states of mindLof.passion,

anger, fear,; fright and nervous excitement.

Reasonable provocation is provocation.of the type which

would be likely, to produce in, a reasonable, person such a state, of

passion, anger, fear, fright or nervous, excitement as would

overcome his capacity for reflection or restraint., and did

actually produce such a state of mind in.the defendant..

The

provocation must be such'that a reasonable person would, have

become sufficiently provoked and would not have cooled off by_the

time of the killing, and that the defendant was so provoked and

did not cool off at the time of the killing-,

In addition, there

must be a causal connection between the provocation

heat of passion and the killing.

the state of

The killing must follow the

provocation before there is sufficient time for the emotion to

cool and must be the result of the state of mind induced by the

provocation rather than a preexisting intent to kill or injure.

Mere words, no matter how insulting or abusive, standing

alone do not constitute reasonable provocation.

For appropriate cases

[However, the existence of sufficient provocation.is not■foreclosed because a defendant learns of a fact from a

statement rather than from personal observation,

If the

information conveyed is.of the nature to cause a reasonable

person to lose his self-control and did.actually cause the.

defendant to do so,, then a statement is sufficient.]

Physical contact,- even-a'-single blow, may amount to

reasonable - provocation.

Whether the contact is sufficient will

depend on whether a reasonable person under similar circumstances

would have been provoked to' act out of emotion rather than

■

reasoned reflection. ' The heat of passion must also be sudden;

■that is/"the killing must have occurred before a reasonable'

' person would have regained control' of his' emotions. ■

If the Commonwealth has not proved beyond'a'reasonable doubt

the absehce’of heat Of passion upon'reasonable provocation, the

Commonwealth.has not proved maiice.

Heat Of Passion Induced'By Sudden Combat

•Sudden’combat'involves a mutual and sudden assault by both

the deceased and the defendant.

In sudden combat, physical

contact, even a single blow, may amount to reasonable

provocation.

Whether the contact is sufficient will depend on

whether a reasonable person under similar circumstances would

have been provoked to act out of emotion rather than reasoned

reflection.

The heat, of passion, induced by sudden combat must

also be sudden; that is, the killing must have occurred before a

reasonable person would have regained control of his emotions and

the defendant must have acted:in-the.heat of-passion without

cooling-off at the t'ime of • the'killing.

If the. Commonwealth has

not proved'beyond a reasonable doubt the absence of heat .of

passion induced by sudden combat, the Commonwealth has not proved

malice.

./j-

SUPREME JUDICIAL COURT

MODEL JURY INSTRUCTIONS ON HOMICIDE

I. Criminal Responsibility

II. Joint Venture

III. Self-Defense and Defense of Another

. 21

Self-Defense................

B. • •Defense of Another. V •

. 21

3-6-

IV. Murder in the First Degree. . . .

-42

" Murder with Deliberate Premeditation . .

Murder with Extreme Atrocity or Cruelty

Felony-Murder in the First Degree. . .

•

44-'

V. Murder.in the Second Degree.. . .

•\

...

VI. Voluntary" "Manslaughter1 (Lesser Included Offense to/Murder) 74

A, .

Voluntary Manslaughter (Absent a Murder Charge)'..,

VII. Involuntary Manslaughter

' A.

E‘-

IX.

Involuntary Manslaughter‘Caused by. Wanton' or'

Reckless' Conduct .'

Involuntary Manslaughter'Unintentionally Caused by. :

•'a Battery.....................

.100

VIII. Supplemental Instructions

C.^

.82'

104'

' Charging a Minor with Murder.

. .104

Definition of Death,.

104

Object of Killing Must Be. a Human Being

105

U.se ’of Dangerous Weapon. .....

105

Questions from Jury. . . . '. . .

.•

.. •.

'. 10 6

Jurors' Obligation on Guilt, or Innocence."

'. .107

Jury Reports Deadlock on Murder in the First Degree: 107

Appendix

Chalk:

April, 2018

Requirements of Proof for Homicide

•Heat of passion on reasonable provocation.

Heat of

passion includes the states of mind of passion, anger, fear,

fright, and nervous excitement. 159

Reasonable provocation is provocation by the person

killed160 that would be likely to produce such a state of

passion, anger, fear, fright, or nervous excitement in a

reasonable person as would overwhelm his. capacity for reflection

or restraint and did actually produce, .such a sta.te of mind in

the defendant.161

The provocation must be such-that a reasonable

159 Commonwealth v. Walden, 380 Hass. 724, 728 (1980) ("in an •

ordinary person such a state of passion, anger,- fear, fright, or

nervous excitement as would eclipse his capacity for reflection

or' restraint, and . . .. actually . . . produce such a state of

mind in the defendant").

160' Commonwealth v. Hinds, 457 Mass. 83, 90-91' (2010),' quoting

Commonwealth v. Ruiz, 442 Mass. 826, 838-839. (2004)

("provocation must come from the victim"). Note, however, that

the doctrine of transferred intent can, apply where the.evidence

.raises the possibility of reasonable'provocation,, in which case

• the provocation could arise from someone other than the victim.

See Commonwealth v. Camacho, 472 Mass. 587, 603 (20,15) (noting,

in dicta, "agree[ment] with th[e] general proposition" that, "in

circumstances where one (A) who is reasonably and actually

provoked by another person (B) into a passion to kill B, shoots

at B. but accidentally hits and kills an innocent, bystander, A's

crime is voluntary manslaughter"), quoting Commonwealth v.

LeClair, 445 Mass..734, 743 n.3 (2006).

1^1 Commonwealth v. Burgess, 450 Mass. 422,.. 4.39 (2008),. quoting

Commonwealth v. Walden, 380 Mass, at 728 ("in an ordinary person

such a state of passion, anger, fear, fright, ..or nervous

excitement as. would eclipse his capacity for reflection or

restraint, and . . . actually . . . produce such a state of mind

in the defendant"); Commonwealth v. Colon, 449 Mass. 207, 220

(.2007) (provocation must be sufficient to cause accused to "lose

his self-control in the heat of passion"); Commonwealth v. .

Lacava, 438 Mass. 708, 721 n.15 (2003), quoting Commonwealth v.

April, 2018

•>

person would have become - incapable 'of • reflection or • restraint

and would not have*, copied off byvthe-time ofthe-killing, and- •

that-the defendant himself was.so,provoked and did not.cool off

at the time of the killing..162

In addition-, there must be a''

causal connection between the provocation, the heat of passion,..

and the killing. 163

The killing must occur after- the,provocation,

and before there is sufficient time for the emotion.to cool. and

must be the result.of the state, ofmind induced-.by the

provocation rather than by a. preexisting intent.to kill or.

grievously injure, or. an intent to kill.formed after the

capacity for reflection or restraint has returned.164

Walden,•380 Mass. at 728 .{provocation.'must "eclipse .

;. . ; .

capacity'for reflection or - restraint") .

- - .

• 162

Commonwealth v. Glover,"459 Mass. at? 841, quoting

Commonwealth' v. Acevedo, 446 Mass. 435,' 443 (20.06) ("defendant's"

actions must be both objectively and subjectively reasonable.

That is, the jury must be able to'infer that'a'reasonable person"

would have become sufficiently provoked and would not have

'cooled off' by the time of the homicide, and that in fact a

defendant was provoked and did not'cool off" .[internal quotation

omitted]); Commonwealth v. Garabedian, 399 Mass. 304313 ' .(1987).

("reasonable person would have become sufficiently provoked and

that, in fact, the defendant was’ provoked")

;

163 Commonwealth v; Burgess, 450 Mass, at' 437-438, quoting

Commonwealth v. Garabedian, 399 Mass, at 313 t( "voluntary "

manslaughter requires the trier of fact, to conclude that there

is a Causal connection between the provocation, the heat of

passion, and the killing").

•

164

Commonwealth' v. Anderson, 408'Mass. 803, 80'5 n.l (1990)

(judge’s instructions to this effect upheld).

April, 2018

Mere words', ' no' matter • how-insultingof •••abusive, • do not

ordinarily by themselves constitute reasonable provocation.165

[But'there may be reasonable provocation where the-person killed

discloses information that would cause a reasonable person to

- lose his self-control and learning of- the matter disclosed did- •v

actually cause the defendant to do so-.]166

• 167

Reasonable■provocation does not require" physical' contact.-

But physical contact, even a single blow, may amount to

reasonable provocation.

Whether the contact is sufficient will

depend on whether a reasonable person under similar •

’.circumstances would have been provoked to act out" of. emotion

rather than reasoned reflection and on whether the defendant was

165 Commonwealth v. Tu Trinh, 458 Mass. 776, 783 (2011), quoting

- Commonwealth v. Vick, 454 Mass.. 418, 429 (2009); Commonwealth v.

Mercado, 452 Mass. 662, 672 (2008) '(proper instruction explained

"the distinction between mere words, which 'no'matter how

insulting or abusive, standing alone do not constitute......... ~

reasonable provocation, ' and statements, that convey information .

'of the nature to cause a reasonable'person to lose his or her

self-control and did actually 'cause the. defendant to do so . . .

» IT

) .

166 Commonwealth v. Sc’hhbpps, 383 Mass. 178, '180-181 (1981)

(wife's sudden admission of ongoing adultery sufficient ,

provocation to warrant instruction on -voluntary• manslaughter) ;

_____________

Commonwealth v. _________

Bermudez, 370 Mass. 438, 441-442 (1976) .("A

reasonable man can be expected to control the feelings aroused

by an insult of an argument', but certain incidents may be as

provocative'when, disclosed' by words'as when'witnessed

personally") .' Generally, for. words or statements to incite heat

of passion, they must contain new information as distinct from

mere insults, taunts, or previously known, if inflammatory, ..

information.'' See Commonwealth v. Ruiz, 442'Mass. at 839~840.

.. 167 Commonwealth v. Morales, 70 Mass. App. 526, 532-533 (2007) .

April, 2018

:, * *" :

in fact so provoked.1.68

The heat of passion must also be sudden;

that is, the killing must have occurred before a reasonable

person would have - regained control of his emotions and the

defendant must have acted in the heat of passion before he

regained control of his emotions.169

If. the Commonwealth has not proved beyond a reasonable

doubt the absence.of heat of passion on reasonable provocation,

the Commonwealth has hot proved that the defendant committed the

crime of murder.

Heat of passion- induced by sudden combat.

Sudden

combat involves a sudden assault by the person killed and the

defendant upon each other.

In sudden combat, physical contact,

even a single blow, may amount to reasonable provocation.170

Whether the contact-is sufficient'will depend- on:whether a

16B

Commonwealth v: Felix, 476 Mass, at 757 (physical contact

between defendant and victim not always sufficient to warrant

manslaughter instruction, especially "where the defendant

outweighs the victim and is physically far more powerful").

169 Commonwealth v.

Smith, 460 'Mass, 'at 325, quoting Commonwealth

v. Colon, 449 Mass. at 220 ("Provocation and 'cooling off time

must meet both a subjective and an objective standard");

Commonwealth v. Acevedo, 446 Mass, at 444-445.

Cf. Acevedo at

444 n.14, citing Commonwealth v. Ruiz, 442 Mass, at 839 (where

victim's slaps and physical contact never posed threat of

serious harm.to defendant, this did not "warrant a manslaughter

instruction, even when the victim initiated the contact").

170

Commonwealth v. Espada, 450 Mass. 687, 696-697 (2008) (sudden

combat as basis for voluntary manslaughter requires that "victim

. . . attack the defendant or at least strike a blow against the

defendant").

•

April, 2018

W*:

■%

Case: 20-2174

Document: 00117736449

Page:~8. • Date Filed: 05/03/2021

Entry ID: 641947

° (ea-

Volume: VIII

. Pages: "102

•

SUFFOLK, SS.

COMMONWEALTH OF MASSACHUSETTS .

SUPERIOR COURT DEPARTMENT

' OF THE TRIAL COURT

******************

COMMONWEALTH

MASSACHUSETTS

* '

* Docket No. SUCR 2010-10961

*- •

★

'JONATHAN CARVALHO

**** * * **,*

■;*

*.*

- JURY TRIAL. : '

BEFORE THE HONORABLE REGINA QUINLAN

APPEARANCES:

For the Commonwealth: •

Suffolk County District .Attorney^s Office

One Bulfinch Place

Boston, Massachusetts 02114

By: Amy J. Galatis, Assistant District Attorney

• For the Defendant Jonathan Carvalho:

11 . Dartmouth. Avenue .

Needham., Massachusetts”02494

By:. William E. Davis, Jr., Esquire

Boston, Massachusetts Date December. 14.,. 2011,

Audio recording produced by Court Reporter: .

Paula Connelly.

Transcript produced by Approved Court Transcriber:

Karen A. McGill

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' Case: 20-217<

Document: 00117736449

Page: 9 . Date Filed: 05/03/2021

Entry ID: 6419470

--[Initia L jury reasonable provocation instructions pages 70-73]

1-70

When the evidence raises an issue (Inaudible)

malice.

Commonwealth has the burden of- proving the absence of

mitigation beyond a reasonable doubt.

remembered that the defendant has no burden to prove

mitigating circumstances, but the Commonwealth has the

burden of proving the absence of such circumstances.

It should be

Voluntary manslaughter is the unlawful

killing arising not from malice, but from mitigating

circumstances of heat of passion induced by reasonable'

provocation or similar conduct.

manslaughter the difference from murder because of the

acts of some malice — acts of some malice, voluntary

manslaughter requires and involves the intentional and

unjustified killing.

While voluntary

In order to convict the defendant of murder,

the Commonwealth must prove beyond a reasonable doubt

the absence of those mitigating circumstances.

first mitigating circumstance that the Commonwealth

must prove the absence of is heat of passion

(Inaudible) provocation.

possibility that the defendant may have acted on

reasonable provocation, the Commonwealth must, prove

beyond a reasonable doubt that the defendant did not

act in a heat of passion upon reasonable provocation.

Heat of passion includes state of mind such as passion,

The

Where the evidence raises the

Case: 20-2174 . . Document: .00117736449 : ;:Page: 1.0

• Date-Filed: 05/03/2021-. : • Entry-ID: 6419470.'

1-71

anger, fear, fright/...nervous excitement..'

provocation is provocation.of the.type which would

likely produce in a .reasonable person the state of

passion., anger,-• fear,. fright or nervous excitement as a

way of overcoming his capacity for reflection

•(Inaudible) and did actually produce such a state of

(Inaudible) of the defendant. -.Provocation must be such

that a reasonable person - would, become sufficiently

• 9

provoked and would not have.cooled off by the time of

. 10.

th^ unlawful killing.

. .. 11

. provoked.and .did not cool off at the time of the

-12

Reasonable

_And the defendant was so

killing.

.In addition, there must be a cause or

connection between provocation as stated (Inaudible) in

' . 15

the killing.

The killing must.(Inaudible) the

provocation before there was.sufficient time for .

emotion to cool and it must be the result of the state

. of mind induced by that provocation•rather than the

pre-existing intent to.kill or .injure.

insulting or abusive standing alone do not constitute

reasonable provocation.

single-blow may amount to reasonable provocation

depending upon the circumstances.

is sufficient or depending upon whether a reasonable

person under the same or similar circumstances would

No matter how

Physical contact, even a

Whether the contact

4 s

Case: 20-2174/ Document: 00117736449 .

: 1

Page: 1V : Date Filed: 05/03/2021: ::Entry-ID:-64l9470

have, been' provoked: or-'acted under emotion rather than

* : reasonable reflection.

■The-heat of passion must also

be sudden and that is- the killing must have occurred

•before-a reasonable person (Inaudible) to regain

control of his emotions.

If the Commonwealth has not proven beyond a

reasonable doubt the absence of heat'of passion

• V (Inaudible) reasonable provocation; the Commonwealth

: ' has■not proven malice.

And if'the Commonwealth has

proven'beyond a reasonable doubt the absence of passion

upon reasonable provocation, then'you should consider

whether the Commonwealth has proven'that .the killing --

let me do'that'again -- when we were talking about'

these improving a' negative, ' so. if the Commonwealth has

proven beyond a reasonable doubt1the absence of.heat of

'■ ' passion on the defendant; the killing was not committed

' 17

in the heat 'of'passion' upon reasonable provocation that

the Commonwealth -- then you should consider whether

the Commonwealth has also proven that the killing was,

done -- was not' with malice.

'mistake, so I'm going to start that one over again

because I didn't understand it and' if I didn't

' ' 23

And I think I just made a

understand it, you're not goingto.

The Commonwealth has'to prove that the

killing was not committed 'in "the heat of passion or

»•

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Document: 00i17736449-'

PageM 2 v Date Filed: 05/03/2021

EntryTd-6419470

1-73

reasonable provocation.

that beyond" a;: reasonable -doubt then that would not

mitigate or reduce or preclude you from find that-the

Commonwealth has proven malice beyond a- reasonable

doubt.

reasonable -- heated passion,- the killing committed in

the heat of passion or reasonable provocation, then the

Commonwealth has proven — you may consider -whether or

not the Commonwealth has- proven malice as I defined it

If- the Commonwealth proves

If the Commonwealth has proven the absence of

: 10

to you, - specific-intent either to-kill,- the three-

■products of malice.

prove or. you have a reasonable doubt as to whether- or

not the killing was committed in the heat of passion or

a reasonable provocation, ‘ you cannot find that the-

Commonwealth- has proven-malice.- And that reasonable

- 1-6

doubt mitigate the;crime assuming there was an unlawful

killing (Inaudible) manslaughter.

I saw some shakes.

If' the Commonwealth has failed to

:•

Did. that make sense?

And- under the second mitigating circumstances

that you may consider in this case is that in sudden

combat. ■

mitigated circumstances which would reduce the offense

• 23

An unlawful killing upon sudden combat is.

of manslaughter -- to voluntary manslaughter.

Sudden

combat involves unplanned combat and sudden assault on

the defendant which escalates into mutual violence by

7."

.** %

. ±

•>

• r*

.. Case: 20-2174 tD Dpcument^OOIJ7y3^.4|:ot

s I^tegR^d: 05/03/2021 ... Entry ID: 6419470

THE- COURT: Anything?.. - Anything else?

MS ... GALATIS:. That's all, that. I have.

. 3

MR. DAVIS.: - Yes .

Could I?• For the record,

that's it for you, right?,

.MS. GALATIS,: Yes, it is.

MR-. • DAVIS: .For. the record, , you know — .

7•

• THE COURT: With.respect.to you self-defense

and the others, right?-

-.8-

MR. ..DAVIS: Yeah,

My.objection to that and my

objection to. the -instruction on.; extreme atrocity and

11'

cruelty.

; •

defendant, I think was somewhere in- my -request, but in

■ - 12

;

Well,- consider statement.-s made by the

any event,

.13,

. . THE. COURT::.-. I did. •

15-

. MR. ‘ DAVIS : . You did?.

-16'

: THE COURT.: I-put-'those. in-for .state of mind

•17

also. the. humane

MR. DAVIS: All right.

■•THE: COURT: — -practices.

MR.' DAVIS: Okay.

And I think this is what

she" was'asking about, what you- did instruct that if all

■ factors are proved,"you should find the defendant

guilty of murder in the-first degree and I would object

24 •

to.that phraseology.

- 25

Lastly, I object to in'your

• instruction about heat of passion upon reasonable -

■

-> •

.. ;. 3_.

Case: 20.-2174

Document: 0011773644?, • Page-: 14 .

Date Filed: 05/03/202.1 . . Entry ID: 6419470-

.....................'

•; •

•

1-81-

provocation, that. you. .did not instruct as requested that

adequate, provocation can. arise not necessary from the

blow was struck, but from aggressive, approach.

was part, of my request., yeah, and I object to

(Inaudible) . again., that's all.

.That

THE COURT: Okay.

MS. GALATIS: Thank you.

THE COURT: Have you,— this is the one,

All right

right?

MS. GALATIS: I have seen this one.

THE COURT: Is this okay?

MS. GALATIS: Yes.

I am content with the

verdict slips-.

MR. DAVIS: Fine.

THE COURT: Okay.)

THE COURT: With respect to the deliberations

(Inaudible) it's important that you do when you do go

out, first of all we'll reduce your number to 12

because the law requires 12 jurors to decide

(Inaudible) case.

that you discuss the evidence, that you talk about it

and you review the physical exhibits that are up there

waiting (Inaudible) before you decide to take any vote

and that you'll consider all of the evidence and talk

to -each other (Inaudible.) that opportunity to discuss

;

And when you go up it's important

•

-. Cas£: 20^2174

Document"00117736449

Page:

Date Filed: 05/03/2021

Entry ID: 6419470

[Jury question page 86]

(■Inaudible1) add '(Inaudible)' one 'of the 'factors.

■ : "~

' 3

: . THE' COURT: What I'll' do is '(Inaudible) go

through "it and I will (Inaudible)'

' MR.' DAVIS:' '(Inaudible)'

THE COURT:

(Inaudible)"since there's an

objection' (Inaudible) I will (Inaudible) and go o'ver it

(Inaudible)

MR." DAVIS : Your Honor,

(Inaudible) that you

go over the outline (Inaudible)

THE COURT:' (Inaudible)

MR. DAVIS:

THE COURT: I'll give you (Inaudible)

MR. DAVIS: Well, that's (Inaudible) because I

(Inaudible)

(Inaudible) that I* consider to be important or not

(Inaudible)

(Pause)

(Jury enters courtroom.)

THE COURT OFFICER: Please be seated.

THE COURT: It seems that (Inaudible) your

question which has been labeled Exhibit V asking for a

handout of what is the second and what's manslaughter

and that's not available to have the judge go over

'verbally the differences, so now I don't have a

transcript of the original charge that I gave you, I

will go over the murder*in the first, second and the

Case: 20-2174 ■ 'Document:.00117736449' . Page: 18

•

Date Fifed: 05/03/2021.

Entry ID* 6419470"

1-98'

being committed in the heat of passion on

r. reasonable-provocation; -the Commonwealth has the burden

of proving beyond a reasonable doubt rthat the killing

was not done in the heat1 of passion or reasonable,

provocation.

The second mitigating factor that you may

consider is sudden combat, an unlawful killing upon

• 8

sudden combat is a mitigating- circumstance which reduce

would reduce -the offense from murder in the second

degree to voluntary manslaughter.

suggestion o.r a possibility of a killing in sudden

combat, the Commonwealth bears the burden of proving

that the. killing was. not committed in sudden combat.

Sudden combat involves an1 .unplanned combat or sudden

assault on the defendant which escalates into mutual

violence with both the deceased and the defendant.

Where there is, a

. 17

There must be evidence . that wo.uld warrant a reasonable

doubt that something happened between they're likely to

produce in an ordinary person's state, of passion,

anger, fear, fright or nervous excitement which-would

. eclipse the capacity of the person reflect or restrain

his conduct and that would happen actually did produce

that state of mind — that type of state of mind than

the defendant. .If the. Commonwealth has not proven- J

beyond a reasonable doubt the absence of the killing in

;«

Casp: 20-2174

'Documents001.17736449. ; Page: 19 :: Date Filed: 05/03/2021 : Entry. ID: 641947

[Defense counsel objection to re-instruction page 100]

.. MR.. DAVIS': I"have, the 'Same' obj ection as I had

, 2

previously and I

.' THE -COURT:

' '

(Inaudible) lack- of aggression?

Yes-Urn-hum'.

MR. DAVIS: Yes.

THE -COURT:- Okay-. ■

-7V

• ;8

MR'. DAVISThank- you-.

THE COURT:' Anything?

’ - MS . -GALATIS : • I'-m content.'

• THE COURT: Okay.) '

THE COURT' OFFICER: Jurors, • please step down.

: 12

-(Jury exits' courtroom.)

• • (Court stands in recess; Resumes later)

(Jury enters courtroom.)

'"15

THE COURT: It's my understanding you've

;

completed your ‘deliberations for the day.

So what we

And

"17

‘ will do Is suspend until' tomorrow morning at'9;00.

- 18

let me' just give you some continued instructions,

refer to the old rule/ it's important that you not talk

' 20

among yourselves or with anyone else about the case and

' 21

that' you not discuss it outside of the formal

deliberations. ' And there's a reason for that.

means that' when you discUss it' in formal deliberations,

everybody hears what everybody has to say.

so if you break' off into groups that creates friction

When you —

• i

Case: 20-21.74

Document: 00117736449 . Page: 20 : - Date Riled:’05/03/2021

. Entry'ID: 64-19470 I

COMMONWEALTH OP MAS SACHUSETTS

SUFFOLK, ss

commonwealth '

SUPERIOR COURT DEPARTMENT

INDICTU

)■

)

}

jJONATHAN CARVALHO,

Defendant

JOINT MOTION FOR AN ORDER CORRECTING THE---RECORD PURSUANT'TO; A

STIPULATION OF THE PARTIES

..... .Counsel for the -Defendant Jonathan Carvalho and the- - ‘

Commonwealth jointly request pursuant'1;'to M.R.A.P. 8 (e) that this ' '

Court enter an order correcting■the record in this matter in

conformance with the parties' stipulation as follows:

The- parties agree that numerous inaudible and/or garbled

words, phrases and parts of sentences in the transcript

shall be corrected in conformance with Exhibit 1 hereto, and

made a part hereof.

I eg- \

Respectfully submitted,

for. the Commonwealth

Respectfully submitted,

Jonathan Carvalho

DANIEL F, CONLEY

DISTRICT ATTORNEY '

For the Suffolk District'

By his attorney,

j<m P.\ Sanini

Aisistait District Attorney

•On$: Buljfinch Place

. *3 Bos

MA 02114

(617) 619-4070

* i, BBO#.563839

Claudia Leis Bolgen

Bolgen & Bolgen •

390 Main Street,

Suite 203

Woburn, MA 01801

(781) 938-5819

BBO# 556866

Dated:

?-<? rn

-*o-

<-n

stipulation.transcdpLwpd

.V*

C3-«

w7'

Page:21; ■ ' Date Filed: 05/03/2021- . / Entry ID: 6419470

Ca$e: 20-2174:' ■ 'Oocument: 00117736449

•v

t&\

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Exhibit lv; :i •

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Vol.2

f Line

. Page

Number Number

iai

■1:;.

Stipulation of the PartiesLuis, but.he said he shot my friend

;

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foCfls Case: 20-2174

Document: 00117736449 - Pape: 22

Date Filed: 05/03/2021 : " Entry ID: 6419470

Line

Vol. 8 Page Number

Number

' 21

■

‘

68'

•

on self defense

I object to thej tack of self defense and excessive use of self defense instruction

24 25 '■

;

my dosing-argument. I started to rearrange It last nfght

•;

21 ■ *

until he is proved guilty. If upon such

Stipulation of tlje Parties

■"

13.

21 •

' • .25 . 3

... 4 7

. likely true than not, but the evidence must establish the

: malicd. Murder committed with deliberate premeditation and

atthe time he acted. And under this third meaning of

- |

conduct created a strong likelihood that

proven this third meaning of ma lice, you must consider the

defendant's actual knowledge of the circumstances

with malice, the Commonwealth must prove beyond a

Both the crimes of murder and voluntary

crime of murder requires the Commonwealth to prove

malice. When the evidence raises an Issue of mitigation the

. provocation or sudden combat. While voluntary

. manslaughter differs from murder because of the

absence of malice — absence of malice, voluntary

upon a reasonable provocation. Where the evidence raises the

or restraint and did actually produce such a state of

mind of the defendant. Provocation must be such

In addition, there must be a causal

connection between the provocation, the state of heat of passion and

the killing. The killing must follow the

pre-existing Intent to kill or injure. Mere words, no matter how

Is sufficient will depend on whether a reasonable

reasoned reflection. The heat of passion must also

before a reasonable person would have regained

upon reasonable provocation, the Commonwealth

prongs of malice. If the Commonwealth has failed to

killing from murder In the second degree to voluntary

fear, fright or nervous excitement as would eclipse his

defined It for you, then that would mitigate the offense

•

.■s.

;

\ .\

Case: 20-2.174. -Document: 001,17736449 • Page: 23.

Date Filed: 05/03/2021 . • Entry ID: .6419470

8 '

to find the defendant guilty of the crime of

.must decide.on

self defense again, that's all.

i . casefche mitigating circumstances you may consider are the

. restraint and which actually produced such a state of

mind in the defendant.

, not cool off at the time. There must be a causal

passjon.andthe killing. The killing must follow

■\ mind Induced by the provocation rather than a pre-existing

ntent to kill or Injure the deceased. Mere words,

•• i

nb matter how Insulting or abusive standing alone did not constitute

| THE COURT: Self defense and lack of aggression

‘

13 .

•8

100; y •

•10

.13

* 4 ;

‘

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'«

* * i

• •!

V.'

Case: 20-2174

Document: 00.1177.36449 , Page: 24 • Date Filed: 05/03/2021 . Entry ID: 6419470

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

SUFFOLK COUNTY

No. 2013-P-1594

COMMONWEALTH/- •

Appellee

JONATHAN CARVALHO,

Appellant

. ON APPEAL FROM A JUDGMENT OF THE

SUFFOLK SUPERIOR COURT .

BRIEF AND RECORD/ APPENDIX' OF. THE DEFENDANT-APPELLANT

- Claudia Leis Bolgen

Bolgen & Bolgen

110 Winn Street, Suite 204

Woburn,. MA 01801

(781) 938-5819

claudialb@bolgenlaw.com

BBO# 556866 '

Willie J. Davis’ '

Davis, Robinson & Molloy .

One Farieuil'Hall Marketplace

Boston, MA 02109

(617) 723-7339

flashdrwllp@aol.com'

BBO# 116460 '

. ^

^ 6'ass: 20-2174 ' Document:'00117736449

Page: 25 ■

Date Filed: 05/03/2021 • • Entry ID: 6419470

****

II.

It was prejudicial error for the trial judge not

to instruct that Luis Rodriguez's aggressive

approach towards Mr. Carvalho could qualify as

heat of passion induced by reasonable provocation.

Prior to trial, defense counsel requested in

writing that the trial judge instruct the jury that

adequate provocation for heat of passion, upon

reasonable provocation can arise from the victim's

aggressive and threatening .'approach even if the victim

did not strike a blow.

(RA:36).

Instead, the trial

judge gave the model instruction language on reasonable

provocation in force- at.the time of trial stating:

Mere words, no matter how insulting, or

abusive standing alone do not constitute

reasonable provocation. Physical contact,

even a single blovr may amount to reasonable

provocation depending upon the circumstances.

Whether the contact is sufficient will depend

on whether - a- reasonable- person-under the same

or,similar, circumstances would have been..................

•

‘'provoked br"ac'ted'"under emotion rather'than

reasoned reflection . --{T8: 71-72 ,- 97-; RA:57) .

See Model Jury Instructions on Homicide 28-29

(1999) (emphasis added) .

After the trial'judge's first set of instructions

to the jury, defense:counsel objected to the reasonable

provocation instruction:

Lastly, I ..object to in your instruction about

heat of passion upon reasonable provocation

that you did not instruct as requested that

adequate provocation can arise not necessary

from the blow was struck, but from aggressive

approach. (T8:80 — 81) .

iv ..v:..;.

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Document: 00117736449/ Page: 26 •; Date Filed:.05/03/202-1.-

EntrylD: 6419470

After the trial _• judge-re-Instructed the jury on

reasonable .provocation-using the same language,

(T 8:97;

RA;57) ,.- defense counsel-.once again- objected to the la-ck

of an aggressive approach.instruction.

(•T 8:100) . /

. .The factual issue before the jury for

determination ..was whether Luis Rodriguez's aggressive

approach .towards Mr.. Carvalho with his fists raised in

a fighting position was "reasonable provocation",,

:At

trial the. prosecutor conceded that Luis Rodriguez

approached Mr. Carvalho .with his.fists raised-in a

combative stance..

. (T7 :16.2)-., ..However, there was no

evidence, that Luis Rodriguez made "physical contact"

with Mr. Carvalho or landed "even.a single blow"..

Under these facts, the jury would not .understand .the

provocation, instruction as given to include aggressive

approach prior to blows being struck.,

The .judge's.

refusal to give the requested instruction was

prejudicial error.

Case law is clear.that, a manslaughter instruction

on reasonable provocation is warranted even when no

physical contact by the victim preceded the defendant's

attack.

See Commonwealth v. Morales, 70 Mass. App..Ct.

526, 532 (2007); Commonwealth v. Fortini, 68 Mass,.,App.

Ct. 701, 706 (2007) (reasonable provocation•instruction

required when an "unexpected and aggressive approach"

.• wvv.

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Date-Filed:'05/63/2021 ' Entry [D:‘6419470

M9could have caused “a reasonable person'in the......

defendant's position 'to" have -felt an "immediate and

intense, threat")';' Commonwealth v. Rodriguez, 58' Mass. '

App. Ct. '610.,

611-614

(2003) (where defendant sought out',

confrontation,- brought a- weapon and used deadly’force

before’ any physical -contact, reasonable provocation ■

instruction was appropriate)/

A'jury instruction that

suggests or implies that physical contact is a

requirement for reasonable provocation is error.

See

Commonwealth v. Morales,' 70 Mass. App. Ct. at '532-533.

In Commonwealth v. Morales, prior 'to the incident.

the defendant'had problems with a woman, "the woman

persistently got'other men to confront the defendant,

and feeling threatened the defendant purchased a knife.

Id. at '527/ 52 9.

This womah then recruited the victim

to confront the defendant. • Id." at '527.

During "the

incident, the victim an'd'two’ other men all bigger than

him confronted the defendant, putting the defendant in

fear "of his' life.'

'Id.' at 530. ' The victim threw two

punches a't the defendant's face, but missed,

Id.

The

defendant then lunged at the victim with a knife,

stabbing him three times and killing him.

Id_._

The trial judge in Morales instructed the jury

using the same model language used by the judge in this

case.

"Id. at 530-531.

The Morales jury returned’ with

23'

•

Case: 20-2174 • Document: 00117736449 - Page: 23 “ Date Filed: 05/03/2021 - Entry ID: 6419470-

a question Whether some the sVingihg :and missing at'

another" person would be reasonable''provocation -or

whether there had to have been physical contact.

at 531.

Id-..'

The jury herb may have had the same .question. ■

In response to. the jury question, the Morales '

: '

trial judge instructed .that for .reasonable provocation

"there would need to .be physical .contact ,

Even fa ;

single blow would be. enough,- but; words and verbal.; '

abuse,

[]: no. matter how insulting or obscene,: is not

enough ..V- Id. ;a_t 531:. This Court held’ in Morales, that.'this instruction was. reversible erro'r.t See id. at

532-533-.

This . Court reasoned that ;"the definition of.

voluntary-.manslaughter does -not contain any .express

requirement that the physical -contact ,.i;s necess'a'ry ;in

order for the jury, to consider reasonable provocation

or sudden combat-."

Id. at 532.

Here unlike Morales

the trial' judge did not

expressly, state that physical contact -was -required for

reasonable provocation.

But the/instruction- read, as .a- •

whole conveyed to- the jury that-such a requirement

existed.

The instruction told the jury that physical ;.

contact may be enough but words -weren't enough.-(-T8 : 7172, 97) . The instruction told the jury to consider, only-

40n retrial, Morales was convicted not of seconddegree murder but only of manslaughter, Commonweal-th

v. Morales, 464 Mass. 302, 303 (2013).

•j

Case: 20-217,4.

-Document: 00117736449

Page: 29.

• Date Filed; 05/03/2021 • - Entry.lD:.6419470.

"whether .the .contact, is sufficient".

• (T8:.71, -97) .

Despite defense counsel/s adamant -request,- '^aggressive

approach" was wholly .excluded from the'.instructions. •

By focusing on "physical contact" and "contact", and by

not directly addressing the trial evidence of a clear

physical-.threat to ;Mr..- .Carvalho ;with .no contact by Luis

Rodriguez.p the instruction when read as a whole gave .

the jury the message, that the. contactless physical

threat from .the advancing Luis Rodriguez' was not enough

for reasonable; provocation.:-' This, was efror .'here,. just'

as surely as. it was error in 'Morales -to explicitly

instruct'.the jury this way; •

:The Court will review therfailure to give a

reasonable provocation' instruction on aggressive'

approach -for- prejudicial- error.-' An error, is non

prejudicial only if this Court' is-sure' that -the' error

did not influence the .jury or had-only "very slight

effect. "

Commonwealth v-. Flebotte, 417 Mass', at 353-.

The trial judge's 'failure to'-instruc't the jury that

Luiz Ro'drighe-z's aggressive approach towards' Mr. •

Carvalho could be reasonable' provocation influenced the

jury against a manslaughter verdict. - The evidence of

manslaughter was strong',' but the instructions could

have caused the jury to improperly evaluate the trial

evidence o.f reasonable, provocation.

A reasonable

.-.d...

,, • • n-V •

-i

Case: 20-2174

Document: 00117736449.

Page: 30

Date Filed: 05/03/2021.

Entry ID: 6419470

person in Mr. Carvalho's position, believing that Luis

Rodriguez had been recruited to "hit" him,

(T3:164),

and being in an agitated state of fear and anxiety,

would have been provoked by‘Luis Rodriguez advancing

upon him with fists -raised.-

•In this -situation, Luis

Rodriguez did not have to land a blow before Mr.

Carvalho was adequately provoked.

know that.

But.the jury did not

For that reason alone the jury may have

rejected a manslaughter verdict.

The reasonable

provocation instruction prejudiced Mr. Carvalho.

Defense counsel's■proposed-instruction would have

cured the probability that the instruction as given

caused the jury to think that Luis Rodriguez had to hit

Mr. Carvalho before reasonable.provocation existed.

The trial judge should have given defense counsel's

requested instruction. - In light- of ■. the-trial judge's

refusal and for all of the reasons set'forth above, Mr.

Carvalho-'s state, and federal, constitutional rights to

due process and a fair trial have been violated. See

e ■ cr • > Estelle v. McGuire. 502 U.S.

62, 72

(1991); Cupp

v. Naucrhten, 41.4 U.S. 141,- 147' (1973).

Ill. The trial judge erred by instructing the jury that

sudden combat needed to be "unplanned".

The first time that the trial judge instructed the

jury on- sudden combat, she stated that:

•*•***

Casa: 20-2174 ’ ■'Document:'00117736449 ' ’Pager'35

Date Filed: 05/03/2021

Entry ID: 6419470

/vo \

u •

COMMONWEALTH OF MASSACHUSETTS . '

SUFFOLK COUNTY

SUPREME JUDICIAL COURT

;

. * No. FAR-24804

COMMONWEALTH,

Appellee * -'

• JONATHAN •' CARVALHO r

Appellant

ON APPEAL FROM A JUDGMENT OF THE ‘

...

• SUFFOLK' SUPERIOR COURT'

DEFENDANT'S APPLICATION

FOR FURTHER APPELLATE REVIEW

•

Claudia ire is Bolgen

Bol.gen & Bolgen

110" Winn Street, Suite 204

Woburn, MA 01801

' (781) 938-5819

claudialbQbolgenlaw ..com

BBO# 556866

i.'

.."UV:.

Case: 20-2174 . Document: 0011773644? ; rage:-36.

Date Filed: 05/03/2021 : ; Entry lD: 6419470,

to consider the. adequacy of :Mr.- -Carvalho's = attempts to

retreat. See id^. at 399. The -trial judge'.s failure, to

instruct on self-defense and excessive force in selfdefense .when the defense .requested the instructionsand

sufficient .evidence supported them violated Mr.

Carvalho's rights under ./the Due Process Clause of the

Fourteenth. Amendment to the ..United States Constitution.

See California v. Trombetta t . 467 -U.S. 479, 485 (19'84),\

•

Taylor v. Withrow. 288 F.3d 846, 851-853. (6th Cir.2002).

III. This Court.should modify the model reasonable

provocation.instruction to deal with "aggressive

approach".

The factual issue .before'the jury for

determination was whether Luis Rodriguez's aggressive

approach towards Mr. Carvalho with his fists raised in

a fighting position was "reasonable provocation". The

instruction told the jury that physical contact may be

enough but words weren't enough.

(T8:71-72, 97) The-

instruction told the jury to consider only "whether the

contact is sufficient".

(T8:71, 97) Yet, case law is

clear that a manslaughter instruction on reasonable

provocation is warranted even when no physical contact

by the victim preceded the defendant's attack'. See

Commonwealth v. Morales. 70 Mass. App. Ct. 526, 532

(2007) . This Court should find the Appeals Court made a

gross error in approving the instruction given here

•.

...

Case: 20-2-174" Document:"001-17736449 ■■ Page: 37^'; DateFiled: 05/03/2021

Entry ID: §419470

under these facts and -should modify- the Model -Jury

Instructions ori Homicide to ;e'-liminate the-probability

that another jury interprets the current'instruction to

mean that physical contact is requiredThe instruction

as given violated Mr. Carvalho's rights under

Fourteenth Amendment to the United States -Constitution

to due process and a fair trial. See e. g. , E'stelle v.

McGuire. 502 U.S. 62, 72'(1991)

! >

Cubb v. Nauahten,• 414

U.S.' 141, 147 (1973)' :

IV.

The Appeals Court unreasonably failed'to correct

the trial judge's'erroneous use of the word

"unplanned" in the sudden combat instruction.

In order to correctly evaluate whether this

particular'case involved sudden combat, the jury had to

decide 'not whether the'meeting, was unplanned'but '

whether the combat at. the planned meeting was

sudden/unplanned. The trial judge's first instruction

on sudden combat was in the conjunctive - both

"unplanned combat" and "sudden assault" were required.

(T8:73-74) Once the jury found the meeting was planned

the instruction as given could have swayed the jury to

not consider the issue of sudden combat any further.

The second instruction had these two phrases in the

disjunctive, but the jury could still have understood

the Instruction to mean that if the meeting was

planned, nothing that happened during it would have

**•*

•■*•

Cas%^i^aihcB»d4[5ff'ViSlP(i3^36449

Pass: 38

;Date-f!led: 05/03/2021:. tntry D: 64:9470

-A

65 N.E.3d 662 {Table)

476 Mass. 1107

(This disposition is referenced

in the North Eastern Reporter.)

Supreme Judicial Court of Massachusetts.

;

December 22, 2016

■-

Synopsis

Appeal From: 90 Mass.App.Ct. 1110, 60 N.E.3d 1198.

Opinion

Commonwealth

DENIED.

Jonathan Carvalho

All Citations

476 Mass. 1107, 65 N.E.3d 662 (Table)

End of Document

W£$-flAW €/ 2021 Thomson Reuters. No claim to

J.S. Government Works.

. 1

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{

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i..

( Pa^a20'^1

^7{p(fei4?(20l?f-9e'39

Date Filed: 05/03/2021 . €ntry.TD: 6419470

199 L.Ed.2d 69, 86 USLW 3151

Synopsis

138 S.Ct. HO

Supreme Court of the United States

Jonathan CARVALHO, petitioner,

MASSACHUSETTS.

Case below, &0 N,E.3d li'fo

Opinion

Petition for writ of certiorari to.the Appeals Court of

Massachusetts denied.

No. 16-9309.

Oct. 2, 2017.

All Citations

138 S.Ct. 110 (Mem), 199 L.Ed.2d 69, 86 USLW 3151

End of Document

• .....merit Works.

...

.v.t;.

•i.

Case: 20-2174- CisffiOnl^tvOIJaOJS'^Ml^ D&agee4pi f0attfe(59l@$/E®/CB^l of Entry ID: 641947Q:

mil ■

<5^0241

(Rev. 12/04),

Page2

PETITION UNDER 28 U.5.C. § 2254 FOR WRIT OF

HABEAS CORPUS BY A PERSON IN STATE CUSTODY

United States District Court

District Massachusetts

Docket or Case No.:

Name (under Which yon woe cmmaed):

TBD

Jonathan Carvalho

Place of Confinement:

Prisoner No.:

MCI Shirley Medium

Petitioner (include the name under which you west eonvidsd)

•Jonathan Carvalho

Steven Kenneway

The Attorney General of the State of

Massachusetts

PETITION .

,'y.

(a) Name ami location of court that entered the judgment of conviction you are challenging:

,Suffolk Superior

Slitee Pemberton Sq.

Boston, MA 02108

(a) Date of the judgment pf conviction (ifyon blow):

(b) Date of sentencing:

SUCR2010-10961

:-n -

■ '.-0

• -Ji

. •••

Length of sentence:

L‘ f

■■ _

' 4=

In this case, were you convicted cm more than one count or ofmon^im onecn^e?^ ^^&rsires . □ No

Identify all crimes of which you were convicted and Begtene^ fa fhie

Murder in the Second Uegree

•: o

12/20/11

•V ■»

•' -j

(b) Criminal docket or case number (ifyou know):

Respondent (authorized person having custody of petitioner)

(a.) What was your plea? (Check one)

XK(I)

Not guilty

(3)

Nolo contendere (no contest)

□ (2) .

Goflty

(4)

Insanity plea

com

o°

“Tt

^ X

ease: 20-2174 Cg^am»tv0I)aaiS'3«l^ bftaflBetfi 1' &&'(Rmi2g/aM&£l of-IEntry ID: 6419470

Mt-

Page 3

*AD34l'

(Ret. 12AX>

(b) If you altered a guilty plea to one count or charge 'and a not guilty plea to .another count or charge, what did •

yon plead guilty to and what did you plead not guilty to?

•*. '

' ‘

Yes

S No

Did you appeal from the-judgment of conviction.?

• O Judge only

Did you testify at a pretrial bearing, trial, or a post-trial, hearing? .

Jury

Yes

□ No •

.. ..

If you did appeal, answer the following:

(a) Name of court

Massachusetts Appeals Court

(b) Docket Or case number (if you know);

,.\

(c)Result Judgment Affirmed

. (d) Date of result (if you know):

Oct.

(e) ^Ttafinn to the case (ifyou know);

14, 2016

Commonwealth v. Carvalho

90 Mass. App. Ct. 1110

(f) Grounds raised:

f-1) The trial judge committed ‘numerous errors in'jury instructxons ^

(2) the prosecutor improperly appealed to juror sympathy during

opening & closing statements;

(3)

to suppress should have been allowed;

, . the motion

(4; the judge should have required a reason for one of the

State s peremptory challenges of a potential juror.

(g) Did you seek further review by a higher state court?

0 Yes

□ No

Ifyes, answer the following;

(1) Name of court

Supreme Judicial Court of Massachusetts

(2) Docket or case number Qf you know):

(3)Result denied

(4) Date of result (ifyon. know):

...... v

...

^A0241

(Rtt, 12/04)'

Pigc4

(5) Citation to the case (ifyon know): Commonwealth v

(6) Grounds raised:

^Carvalhoj 476 Mass. il07 (2016)

-Sami &s those on Appeal

■

(h) Did you file a petition for certiorari in the United States Supreme Court?

XX Yes

□

If yes, answer the following:

(1) Docket or case number (ifyou know):

(2)Result Denied

• I

(3)Dateofresult(ifyonlaiow): Oct. 2 2017

WC^te^^0f^:carv^v; Hassachuspt-.t-g

10.

Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions

concerning this judgment of conviction in any gfatp- court?

1L.

2017 US LEXIS 5967

O Yes

E> No

Ifyour answer to Question 10 was Tes," give the following information:

(a.)

(1) Name of court

(2) Docket or case number (ifyou know):

(3) Date of filing (ifyou know):

(4) Nature of the proceeding

(5) Grounds raised:

I '

(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

Yes

O No

(7) Result:

(8) Date of result (ifyou biow):

J^0Z

‘•A

^A0241

(Erv. L2/M)

(b) If you filed apy second petition, application, or motioE, give the same information:

. (1) Name of court

(2) Docket or case number (ifyou know):

(3) Dale of filing Of you know):

(4) Nature of file proceeding:

(5) Grounds raised:

•i

(6) Did you receive a hearing 'where evidence was given on your petition, application, or motion?

□

Yes

□ No

(7) Result

(8) Date of result (ifyou know):

(1) Name of court

(2) Docket or case number (ifyon know):

(3) Date of filing (ifyou know):

(4) Nature of tbs proceeding;

(5) Grounds raised:-

•*:

,*•

Case: 20-2174 Ci^dnl^tv0O2C)I’S’-Ma^ D&ageeAtfr FBlett ®9^/DS/0(3^^3 of iBntryiD: 6419470

fck ■

<5uA02il

(Rev. I2/W)

Ptge6

(6) Did you receive a bearing where evidence was given on your petition, 'application, or motion?

□

Yes

□ No

(7) Result

(8) Date of result (ifyou know);

(d) Did you appeal to the highest state court havingjurisdiction over tbe action taken on your petition, «pp|twrfinrt.

or motion?

(1) First petition:

□ Yes ;,-;0’No'

(2) Second petition:

□ Yes

Q No •

(3)’Third petition:

□ Yes

□ No

■ •

•

(e) Ifyon did not appeal to tfaehigbeststatBcourthavingjurisdiction, ejplain why you did not

12,'

For this petition, state every ground on which yon claim that you are being held in violation of the Constitution,

laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the feds

supporting each ground.

• CAUTION: To proceed in the federal court vou murt ordinarily first erhwgnWft up) your available

remedies on each ground on which you request action by tbe federal court. Also. rf you fan in ck forth all the

grounds in this petition, von may he barred from presenting additional grounds at a lafpr Ash.

GROUND ONE: . Xtt t, U1 i^e. Commi

in the ,

iur

(a) Supporting fects (Do not argue or rite law. Just state the specific facts that support your claim.):

1. It was

2 g«J^3r^Sr'S‘SrssJK,3=4S

(b) Ifyou did not exhaust your state remedies on Ground One, explain why:

It was;exhausted.

, Gass: 20-2174.

Dfta®BeA61

of lEntry -ID: 6419470

p,n

*<■

Fage7

^A0241

(Rct.UM)

(c)

Direct Appeal of Ground One:

• (1) If you appealed from tiejudgment of conviction, did you raise this issue?

5® Yes

□ Nd

(2) If you did not raise this issue in your direct appeal, explain why.

(d) Post-Conviction Proceedings:

(1) Did yon raise this issue through a post-conviction motion or petition for habeas carpus in a state trial court?

Yes

, (2) Ifyouranswerto Question (dXI)is "Yes," state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (ifyou know): •

Date of the courts decision:

Result (attach a copy of the courts opinion or order, if available):

;..j

•\r*

'(3) Did you receive abearing on your motion dr petition?

□ Yes

.0 No

■ (4) Did you appeal from the denial of your motion or petition?

□ Yes

□ No

•j.;

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? □ Yes

□ No

(6)Ifyouranswerto Question (d)(4) is "Yes," state: Name arid location of the court where the appeal 'was filed:

Docket, or case number (ifyou know):

Date of the courts decision:

R-sult (attach a copy of the court's opinion or order, if available):

✓

(7) If your answer to Question (dX4) or Question (d)(5) is "No," explain why you did not raise this issue:

V.7

Case: 20-2174 Ctodfl»itv0IHOfS’-WM0 D6tagped61,

of Entry. ID: 6419470

^A02*l

(Rev. 12/M)

Pbb*8

(t) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have

used to exhaustyonr state remedies on Ground One:

■ and the right to a-fair trial. '

S’: violating due procei

(a) Supporting feds (Do not argue or cite law. Just state the specific fects that support your claim.):

s: jssrs

«*t

ealing to the eaotidL and ^patSies^0?^^-

(b) Ifyou did not exhaust your state remedies cm Ground Two, explain why:

11 f:wa,s .'exhausted.

(c).

Direct Appeal of Ground Two:

0) If you appealed from the judgment of conviction, did you raise this issue?

K2 Yes

(2) If you did not raise this issue in your direct appeal, explain why:

(d) '

Tost-Convirfion Proceedings:

(1) Did you raise this issue through a-post-conviction motion or petition for habeasnorpus in a state trial .court?

□

Yes

(2) Ifyonr answer to Question (d)(1) is "Yes," state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

. Docket or case number (ifyou know):

Date nfthe courts decision:

................

Page?

AkA0241

(Erv. 12/D4)

Result (attach a copy of the courts opinion or order; if available):

(3) Did you receive a hearing on your motion or petition?

(4) Did you appeal from the denial of your motion or petition?

□ Yes

□

' □ Yes

□

-(5) Ifyour answer-to: Question (d)(4) is "Yes,"! did you raise this issue in the appeal? . □ .Yes (6) Ifyour answer to Question (d)(4) is "Yes," state:........

‘ •

Name aod location of die court where the appeal was filed:

•"

...

Docket or case number Of you know):

Date of the court's decision:

Result (attach a copy of toe courts opinion or order, if available):

(7) Ifyour answer to Question (d)(4) or Question (d)(5) is "No," explain why you did hot raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, tic.) that you:

have used to exhaust yonr state remedies on Ground Two

GROUND THREE: The motion to slupp'ress should have been allowed based

on the Miranda violation.'

(a) Supporting facts (Do not argue or cite law. Just stale toe specific facts that support your claim.):

Statements made by petitioner during transport from Georgia to

Massachusetts . were made prior .-to . police advising him of: his Mir

anda rights when they arrived in Massachusetts and should have

been suppressed. Denial based on decision that though the petiti6ner was in custody, statements were not result of interrogation.

i..--

Case: 20-2174

'-Dftagtiert8l: ®ate(&l^/JB/C)S££^9of 35ntry;ID: 6419470

Art

! •

*A02*f

(Rct. 12/D4)

Page 10

(b) Ifyou did not exhaust your state remedies on Ground Three, explain why?

It was exhausted.

(c)

Direct Appeal of Ground Three:

(1) Ifyou appealed from the judgment of conviction, did you raise this issue?. .

XXX Yes .

No ..

(2) Ifyou did not raise this issue in your direct appeal, explain why:

Post-Conviction' Proceedings: '

(1) Did you raise this issue .through a post-conviction motion or petition for habeas: corpus in a gfafr* trial court?O

Yes-

XX No

(2) If your answer to Question (d)(1) is "Yes," state: :

Type of motion or petition:

Name and location of the court whfere the motion or petition was filed: .

Docket or case number (ifyou know):

Dale of tiie court's decision:

Result (attach a copy oftine courts opinion or order, if available): ■

l..

(3) Did you receive a bearing on your motion or petition?

p Yes

D No

(4) Did you appeal from the denial of your motion or petition?

□ Yes

□ No

(5) Ifyour answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? □ ' Yes '

□ No'

(6) Ifyour answer to Question (d)(4) is "Yes," stale:

Name and location ofthe court where the appeal was filed:

Docket or case number (ifyou. know):

Date of the court's decision: . .

Result (attach a copy of the courts opinion or order, if available): *

I .

Gaae: 20-2174- C9 DdSager#9L;" FMaOBiMl(S5/Mp,2.t)iof Entry:IQ:.6419470

Psgtll ■

. ^«AO 24-1

(Rev. 12/04)

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you

Hava used ta exhaust your state remedies on Ground Three: : x:

; GROUND FOUR:

The judge should have required .a reason for one of

the State's peremptory challenges of a potential,

juror under Batson v> Kentucky.

(a) Supporting fecb (Dp'not argue or cite law. Just state the specific feels "that support your claim.): - ’

The Commonwealth exercised 6 peremptory challenges,•

including Juror #3 who was Hispanic (the defendant

was Hispanic). The judge sua. sponte inquired if

there were any other Hispanics still on the jury,

but did not ask the prosecutor for an .explanation

for the impropriety. ■

(b) If you did not exhaust your state remedies on Ground Four, explain why:

It was exhausted

• '5

Direct Appeal of Ground Four:

(1)Ifyon appealed from the judgment of conviction, did you raise this issue?

0 No

’ xiP Yes

(2) If you did not raise this issue in your direct appeal, explain why:

Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition, for habeas corpus in a state trial court?

' □ Yes

□ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition:

' 7

Case: 20-2174 CdSeOJffl^-Q!2t)l®7Sfie9; DdSagtsrSQL ■ FEtele05Ml®/IRa|gatL of Btry ID: 6419470

■:

^A024l

(Ret. 12W)

Page 12

Name and location of the court where the motion or petition was filed:

Docket .or ease number (ifyou know):

-• Dateoftkeeourfs'dceisiDnr

............

..........

Result (attach a copy of the court's opinion or order, if available): * ?

(3) Did you receive a hearing on your motion or petition?

0 Yes

(4) Did you appeal fimuthe denial of your motion or petition?

□ Yes - -O No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? □ Yes

□ No

(6) If your answer to Question (d)(4) is “Yes*" state:

Name and location ofthe court where fee appeal was fiM;

Docket or case number (if you know);

Date of the courfs decision:

.< i'. ’ •

Result (attach a copy of fee courts opinion or onier, if available):-

(7) Ifyour answer to Question (d)(4) or Question-(d)(5) is "No," explain why you did not raise this issue: '

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you

have used to exhaust your state remedies on Ground Four

.VS..*

Case: 20-21.74 C£telMj8^®m^8M09 DcBagasrSIl :>.FDWeOBte6iaB5/«ffi§§a-e of EStry ID: 6419470

ft??Page 13

AO 241

(Rev. 01/15)

13.

Please answer these additional questions about the petition you are filing;

(a)

Have all grounds for relief that you have raised in this petition been presented to the highest state court

having jurisdiction?

D Yes

□ No

If your answer is "No," state which grounds have not been so presented and give your reason(s) for not

presenting them;

(b)

Is there any' ground in this petition that has not beat presented in some state or federal court? If so, which

ground or grounds have not been presented, and state your reasons for not presenting them

. 14.

Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction

that you challenge in this petition?

Yes

□ No

If'Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues

raised, the Hwtf of the court's decision, and the result far each petition, application, or motion filed. Attach a copy

of any court opinion or order, if available.

15.

____ ______________ _____ _____________________

Do. you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for

the judgment you are challenging?

Yes

- □ No

If 'Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues

raised.

1/.

■

£1:

\ •

.......

« . Si'

Case: 20-2.174 C'oBeiajal»iiito-QaoitB7HMa9 D'deagetfEL FDteJeOB)te6M5/®a:|§aB of fitry ID: 6419470

•l

^A024-l

(RB/.12M)

16.

Page H

• Give fee name and address, ifyou know, of each attorney who represented yon in the following stages of the

judgmeatyou are challenging:

.(a) At preliminary hearing:

(b) At arraignment and plea:

(d) At sentencing:

(e) On appeal

(f) In any post-convictioD proceeding:

(g) On appeal from any ruling againstyou in a past-conviction proceeding:

17.

. • Do you have any-future sentence to serve after you complete the sentence for tbejudgment feat you are challenging?

□ Yes -

(a) If so, give name and location of court that imposed fee other sentence you -will serve in fee future:

V.:

;;

(b) Give the date fee ofecr sentence was impngnri-(c) Give fee length of fee other eentenm*

(d) Have you filed, or do you plan to file, any petition feat challenges thejudgment or sentence to be served in fee

future?

□ Yes

•

IS.

•

TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must

•

fee one-year statute of limitations as contained in 28 U.S.C § 2244(d) does not bar your petition.* ■

My Petition for writ of certiorari in the United States

Supreme Court was denied on October 2 ^017. allowing me

until October 2, 2018 for this filing!

Cass: 20-2174

DcfcageraSLV FCfediC)B)Ml®5/(Kag§2.l4 of JBitry' ID: 6419470

*JkD241

(Rct. tim)

Page 15

* The Antitermriem md Effective Death Penalty Act of 1996 ("AEDPA'1) as contained in 28 U.S.C. § 2244(d) provides-in

part that

(1)

A one-year period of limitation shall apply to an application for a'writ of habeas corpus by a person in

custody pursuant tothe judgment ofaState court The limitation period shall run from the latest of (A)

the date on which thejudgment became final by file conclusion of direct review or die expiration

of the time for seeking such review,

(B)

die date on which the impediment to filing an application created by State action in violation of

the Constitution or laws of the United States is removed, if the applicant was prevented from

filing by such state'action;

(C)

the date on which the constitutional right asserted was initially recognized by the Supreme :

Court, if the right has been newly recognized by the Supreme Court and made retroactively

■ applicable to cases on collateral review; or

' (D)

the date on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.

;

. Case: 20-2174 Cifel!il®^^.(2T}l'B7l364(39 DdfiagesiM '■^ritedieOBfeBftJK/IB&fpaE of Bitry ID: 6419470

^A024-l

(Ret. 12/04)

P»gE 16

(2)

The time during which a.properly Sed application forState post-conviction or other collateral review

with respect to the pertinentjudgment or fc*™ is pending shall not be counted toward any period of

limitation iw»dw thi* subsection.

Therefore, petitioner ftks that the Court grant the following relief

Grant the Writs ari^ order, a new trial within 180 days,

or to be released.

or any other reliefto which petitioner may he entitled.

Signature of Attorney (if any)

;

• 1 declare (or certify, verify, or state) under penalty of peajury that the foregoing is true and correct and that this Petition for

Writ of Habeas Corpus was placed in the prison mailing system on 9/1/18

Executed (signed) on

9/1/18

(month, date, year).

• (date).

Signature of Petitioner

Ifthe person signing is sot petitioner, state relationship to petitioner and explain why petitioner is not gigning this petition.

. IN FORMA PAUPERIS DECLARATION

[insert appropriate court]

*♦* **

Case: 20-21.74- ,CBs®0Bl®Rb«lH07S’3«l# :Bi5&pei%33 m&rmSsm03tW^ 1 ofEntry ID: 6419.47.Q „

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

^ Civil Action No. 18-12018-NMG

JONATHAN CARVALHO,

Petitioner

STEVEN KENNEWAY,

Respondent

NOTICE OF APPEAL

Now comes the petitioner in-the-above-entitled case and appeals pursuant to Fed.

R. App. P. 3 and 4. Pursuant to Fed. R. App. P. 3(c), the petitioner states the following:

(1)

PARTY TAKING APPEAL: Petitioner Jonathan Carvalho

(2)

JUDGMENT, ORDER OR PART THEROF APPEALED: the District

r: .

Court’s (Gorton, J.) memorandum and order dated November 10, 2020 and entered

' November 12, 2020, and its Order of Dismissal dated November 12, 2020.

(3)

COURT TO WHICH APPEAL IS TAKEN: United States Court of

Appeals for the First Circuit.

Respectfully submitted,

JONATHAN CARVALHO

By his attorney,

Is/ Claudia Leis Bolgen

Claudia Leis Bolgen

BBO #556866

Bolgen & Bolgen

110 Winn Street, Suite 204

Woburn, MA. 01801

Tel: (781)938-5819

Dated: December 9, 2020

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UNITED STATES CONSTITUTION

FOURTEENTH AMENDMENT

(Relevant Parts)

"No state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any state deprive any

person of life, liberty, or property,

without due process of law, nor deny to ..

any person withingits jurisdiction the

equal protection of the laws."

28 U.S.C. § 2254(a)

The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall

entertain an application for a writ of

habeas corpus in behalf of a person in

custody pursuant to the judgment of a state

court only on the ground that he is in

custody in violation of the Constitution

or laws or treaties of the United States.

«r*\

28 U.S.C. § 2254(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 un

reasonable application of, clear

ly established Federal law, as

determined by the Supreme Gourt

of the United States; or

(2) resulted in a decision that was

based on an unreasonable deter

mination of the facts in light

of the evidence presented in

the state court proceedings.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.