Opinion
Civil Action No. 02-11534-DPW.
August 23, 2004
MEMORANDUM AND ORDER
Petitioner Richard Asadoorian seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his state court convictions for aggravated rape and related offenses.
Through counsel appointed for the purposes of this petition, Asadoorian contends that (1) his Sixth Amendment rights were violated during the underlying state criminal trial because the judge denied his request to discharge his trial counsel at the commencement of the trial, (2) deficiencies in his trial counsel's performance deprived him of his Sixth Amendment right to effective assistance of trial, and (3) misconduct by the prosecutor violated his due process rights.
In addition, after moving for the dismissal of his counsel in this action — which I allowed on the condition that briefing by appointed counsel be completed — Asadoorian has pressed several additional grounds for relief in a supplemental pro se brief. I find that Asadoorian is not entitled to relief on any of the grounds asserted, either through counsel or in his supplemental brief. Accordingly, for the reasons set forth below, I will deny the petition.
I. BACKGROUND
A. Facts
Under 28 U.S.C. § 2254(e)(1), state court findings of fact "shall be presumed to be correct" and a habeas petitioner bears the burden of disproving factual findings by "clear and convincing evidence." See McCambridge v. Hall, 303 F.3d 24, 34-35 (1st Cir. 2002); Sanna v. DiPaolo, 265 F.3d 1, 10 (1st Cir. 2001). In denying the first of Asadoorian's two motions for new trial, the state trial court summarized the testimonial evidence leading to Asadoorian's conviction as follows.
Kathleen Green was a divorced woman who worked as a nurse and lived in Andover, Massachusetts with her three sons, ages 22, 20, and 18. Green and Asadoorian met in 1991 and became involved in an intimate relationship. In early 1992, after they had been dating for several months, Asadoorian, upon returning from a trip to Florida, urged Green to let him move into her house with her and her sons. Green told Asadoorian that she was not yet ready for such a step.
On February 29, 1992, Asadoorian and Green agreed to have dinner together at Asadoorian's home. On their way to Asadoorian's home, Asadoorian became angry about Green's decision not to let him move in with her. He began driving at high speeds, swerving around corners, and he yanked Green by the hair. In swerving to avoid another car, he drove off the road and smashed into some bushes. He then proceeded to his house, which was nearby.
Asadoorian pulled Green by the hair out of the car, threw her to the ground, and then pulled her into the house. Once inside, he threw her to the floor and began choking her. He punched her in the stomach, kicked her, and repeatedly threatened to kill her. He then pushed Green upstairs and took a small handgun from a bedside table. He held the gun to her and told her to "vindicate" herself. He told her he would break her arms and legs and threatened to get rid of her body in the Merrimack River. After a while, Asadoorian began sobbing, and Green consoled him, thinking that was the only way she would survive.
The two went back downstairs to the kitchen for about an hour. At various points, Asadoorian held the gun to his own head and threatened to kill himself. At some point, Asadoorian forced Green to go upstairs again. He took off her clothes and performed oral sex on her in the shower. He then told her to get on the bed, and he forced her to perform oral sex on him. He got on top of her and penetrated her. Afterward, Asadoorian eventually fell asleep, and Green left the house early in the morning. She walked to a telephone and called a friend who gave her a ride home.
B. Procedural History
The jury returned guilty verdicts on two counts of aggravated rape and on single counts of kidnaping, assault with a dangerous weapon, assault and battery, threatening to commit a crime, and operating a motor vehicle to endanger. On March 24, 1993, the trial judge, Judge Hely, sentenced Asadoorian to nine to twelve years of incarceration for the aggravated rape convictions and a consecutive term of nine to ten years, suspended for four years, on the kidnaping conviction. Judge Hely also imposed sentences of four to five years and two and a half years for the assault with a dangerous weapon and assault and battery convictions, respectively, with those terms to be served concurrently with the sentences on the rape convictions.
Judge Hely imposed separate nine- to twelve-year terms for each of the rape convictions but ordered that the two terms be served concurrently.
Asadoorian timely appealed his convictions to the Appeals Court of Massachusetts. On March 7, 1995, with his appeal of the convictions still pending, Asadoorian moved for a new trial pursuant to Mass. R. Crim. P. 30. After conducting an evidentiary hearing, Judge Hely denied the motion on February 27, 1996, and Asadoorian appealed the ruling.
Asadoorian also appealed his sentences to the Appellate Division of the Superior Court. The Appellate Division increased the sentences on the rape convictions to terms of twelve to twenty years.
Rule 30 states:
The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done. Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law.
Mass. R. Crim. P. 30(b).
The Appeals Court consolidated the appeal of the judgments and the appeal of the denial of the motion for a new trial, and it affirmed both on January 6, 1998. Commonwealth v. Asadorian, 44 Mass. App. Ct. 1108 (1998) (table). Asadoorian sought further appellate review by the Massachusetts Supreme Judicial Court, but review was denied on July 28, 1998.Commonwealth v. Asadorian, 428 Mass. 1102 (1998) (table).
Following the denial of his motion for a new trial, Asadoorian also moved for discovery of trial exhibits and reconsideration of the denial of his motion for a new trial. Judge Hely denied the motions on March 31, 1997.
The Appeals Court misspelled Asadoorian's name and the mistake was carried through subsequent appellate rulings but was ultimately corrected in the Supreme Judicial Court's last ruling in the state appeals process, Asadoorian v. Commonwealth, 440 Mass. 1026 (2003).
On August 20, 1999, Asadoorian made a second motion for a new trial. Judge Hely denied the motion on March 13, 2000, and Asadoorian appealed that denial. Although he was represented by counsel, Asadoorian moved to file a supplemental pro se brief, which the Appeals Court accepted under Commonwealth v. Moffett, 383 Mass. 201, 216-17 (1981). The Appeals Court affirmed the denial of Asadoorian's second motion for a new trial on May 15, 2002. Commonwealth v. Asadorian, 54 Mass. App. Ct. 1116 (2002) (table). Asadoorian again sought further appellate review in the Supreme Judicial Court, but review was denied on July 24, 2002. Commonwealth v. Asadorian, 437 Mass. 1106 (2002) (table).
In Moffett, the Supreme Judicial Court stated that appointed counsel in a criminal case "should not be permitted to withdraw solely on the ground that the appeal is frivolous or otherwise lacking in merit." 383 Mass. at 207. However, noting that counsel, whether appointed or retained, has the responsibility not to advance groundless contentions, the court stated that "[i]f there is nothing to support a contention which the defendant, despite counsel's attempts to dissuade him, insists on pursuing, we think it preferable that counsel present the contention succinctly in the brief in a way that will do the least harm to the defendant's cause." Id. at 208; see Care and Protection of Valerie, 403 Mass. 317, 318 (1988).
In appealing his second motion for a new trial, Asadoorian moved to amend the brief submitted by his counsel and to submit aMoffett brief. The Appeals Court, uncertain as to whether Asadoorian wanted to proceed pro se, stayed proceedings until the matter was clarified. Asadoorian elected to continue to be represented by counsel, who filed a Moffett brief on his behalf. Asadoorian subsequently moved to file a supplemental pro se Moffett brief, which the Appeals Court allowed.
While his appeal on the second motion for new trial was pending, Asadoorian moved to file a supplemental reply brief, to participate in oral argument, and to have counsel appointed to pursue the claims that he had raised pro se. Single justices in the Appeals Court denied the motions. Around the same time, Asadoorian moved in the trial court to have Judge Hely recuse himself from the case, which Judge Hely denied. Asadoorian appealed, and a single justice of the Appeals Court affirmed Judge Hely's refusal to recuse himself. Pursuant to Mass. Gen. Laws ch. 211 § 3, Asadoorian sought relief in the Supreme Judicial Court, contesting both the Appeals Court's denials of his motions regarding the second motion for a new trial and its affirmance of Judge Hely's denial of the recusal motion. The Supreme Judicial Court affirmed both sets of rulings on November 20, 2003. Asadoorian v. Commonwealth, 440 Mass. 1026 (2003).
Asadoorian filed the instant petition on July 30, 2002. In the petition, Asadoorian set forth four grounds for the petition:
The filing was within the applicable one-year statute of limitations for federal habeas corpus petitions by state prisoners. Under 28 U.S.C. § 2244(d)(1)(A) the limitations period begins on the "the date on which the judgment bec[o]me[s] final by the conclusion of direct review or the expiration." Here, the Supreme Judicial Court denied Asadoorian's application for further appellate review on July 28, 1998, and although Asadoorian did not choose to seek review by the United States Supreme Court, the judgment did not become final for purposes of § 2244 until ninety days after the denial of further appellate review. See Neverson v. Farquharson, 366 F.3d 32, 36 (1st Cir. 2004) (conviction became final when the ninety-day period for seeking certiorari to the Supreme Court expired). Thus, the judgment became final for federal habeas corpus purposes on October 24, 1998. Asadoorian filed his second motion for a new trial on August 20, 1999, and by that time slightly more than a month of the limitations period remained. However, under 28 U.S.C. § 2244(d)(2) the limitations period was tolled during the pendency of the motion, which extended through July 24, 2002, when the Supreme Judicial Court denied further appellate review of the denial of the motion. Asadoorian then had until around August 28, 2002 to file the present petition to fall within the limitations period, and he did so.
(1) Denial of Access to Courts and Violating Due Process and Equal Rights by a Partial and Fraudulent Judge who should have been Recussed [sic] for Shirking his Duty.
(2) Denial of Conflict Free Counsel, Choice of Counsel, Pro Se Right, Inactions and I.A.C. of Atty. O'Neill and McCann and Harwood.
(3) Malicious Prosecutions, Prosecutorial Misconduct, Knowing/Unknowing Presentation of Perjured Testimony, Lying to Court, and Looking just "to Win"!
(4) Petitioner does NOT waive any Issues or Arguments by his attorneys or his Pro Se Pleadings, presented in any Post Conviction Submission.
Respondent filed a motion in opposition to Asadoorian's petition, and pursuant to the Criminal Justice Act, I subsequently allowed a motion by Asadoorian to have counsel assigned to represent him in the matter. Counsel assigned to the case, Matthew Kamholtz, later moved to withdraw stating that "[b]ased on recent conversation and correspondence with the Petitioner, it is clear that there presently exists a complete breakdown of the attorney-client relationship." I nevertheless directed Attorney Kamholtz to submit a memorandum in support of Asadoorian's habeas petition, and he complied. Asadoorian then moved to dismiss Attorney Kamholtz and have successor counsel appointed. I allowed the motion to dismiss Attorney Kamholtz, but I denied Asadoorian's request for successor counsel. However, I allowed Asadoorian to submit a supplemental pro se brief in support of his petition. I also allowed respondent to file a supplemental memorandum, and Asadoorian has filed a pro se reply brief which I have considered together with all his pro se submissions.
II. PETITION FOR A WRIT OF HABEAS CORPUS
In his initial opposition to Asadoorian's petition, respondent argued that several, if not all, of the grounds Asadoorian raised in the petition had not been properly exhausted as required by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), specifically 28 U.S.C. § 2254(b)(1)(A), and he urged dismissal of the petition on those grounds. Respondent, however, conceded that insofar as the petition could be read to raise the three grounds Asadoorian raised in his motion for further appellate review in the Supreme Judicial Court of the Appeals Court's consolidated affirmance of his convictions and the denial of his first motion for a new trial, those grounds had been properly exhausted in the state courts. Those three grounds were whether Asadoorian was denied: (1) his Sixth Amendment right to counsel of his choice where the trial court refused to discharge trial counsel, (2) his Sixth Amendment right to effective assistance of counsel, and (3) due process because of prosecutorial misconduct.
The memorandum Attorney Kamholtz submitted in support of Asadoorian's petition avoids direct confrontation with the exhaustion issue by focusing exclusively on the three grounds respondent does not dispute were exhausted in the state courts. However, in his supplemental pro se brief, Asadoorian appears to press additional issues which he did not raise in his first motion for a new trial. As discussed in more detail in section II.B, infra, it appears that Asadoorian did raise at least some of these issues in his appeal of the denial of his second motion for a new trial and that the Appeals Court deemed them to be waived or procedurally defaulted in that appeal. Nevertheless, it is not entirely clear — primarily because of the confusing nature of Asadoorian's submissions — whether Asadoorian here asserts grounds for the present petition that he did not raise during any of his state post-conviction motions.
The claims the Appeals Court deemed to be procedurally defaulted are considered exhausted for purposes of § 2254. See Hall v. DiPaolo, 986 F.2d 7, 10 (1st Cir. 1993).
If in fact Asadoorian attempts to raise here issues that were neither procedurally defaulted in the state courts nor properly exhausted there, his petition would be a "mixed" one consisting partly of exhausted and partly of non-exhausted claims. Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir. 2004). Although Rose v. Lundy, 455 U.S. 509, 514 (1982), directed courts to dismiss mixed petitions for failure to exhaust, the First Circuit has stated that a stay, rather than a dismissal, "will be the preferable course in many cases involving 'mixed' petitions — and it may be the only appropriate course in cases in which an outright dismissal threatens to imperil the timeliness of a collateral attack." Neverson, 261 F.3d at 126 n. 3. Once the action is stayed, the petitioner has the option of amending the petition to drop the unexhausted claims and obtain immediate review, see Nowaczyk v. Warden, 299 F.3d 69, 76 (1st Cir. 2002), or to return state court to exhaust properly the claims before the federal action proceeds.Id. at 79-80.
The prior practice of the courts was to follow the literal holding of Rose v. Lundy by dismissing mixed petitions without prejudice. However, in Duncan v. Walker, 533 U.S. 167 (2001), the Supreme Court held that AEDPA's one-year statute of limitations is not tolled during the pendency of federal post-conviction proceedings. Id. at 181-82. Thus, underDuncan, dismissal of a mixed petition, given the ordinary amount of time such a petition may be pending before the federal court, could lead to the expiration of the limitations period; thus, following the dismissal the petitioner would be barred from reasserting even the previously exhausted claims, much less any claims he attempted to exhaust after the dismissal, absent a stay.
Here, Asadoorian has indicated that he does not wish to forgo any claims not raised by Attorney Kamholtz, and Asadoorian steadfastly maintains the claims he raises pro se have been exhausted. Under Nowaczyk, the ordinary course would be to stay the proceedings until Asadoorian presents to the state courts any claims found unexhausted. However, under 28 U.S.C. § 2254(b)(2), a district court may deny a habeas petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." As discussed below, to the extent the myriad claims Asadoorian raises in his supplemental briefs might be considered not specifically adjudicated to be procedurally deficient by the state courts, I find here that they are without merit. I therefore decline to stay habeas proceedings, having reached the merits of both the exhausted and any potentially unexhausted claims in the petition and finding the arguably unexhausted claims without even a colorable basis.
I note that in Nowaczyk, the First Circuit indicated that the district court, faced there with a mixed petition, did not have the option of reaching the merits immediately: "[T]he district court was presented with a § 2254 petition that contained unexhausted claims. Thus, it did not have the option of adjudicating the petition immediately. Unless the petitioner agreed to amend the petition to drop the unexhausted claims, the district court had no choice but to delay decision until the prisoner completed the process of exhaustion." 299 F.3d at 80. However, 28 U.S.C. § 2254 (b)(2) expressly grants a reviewing court the power to dismiss petitions on the merits notwithstanding exhaustion issues, see Duncan, 533 U.S. at 191, and there is no obvious reason why § 2254(b)(2) would not apply to mixed petitions particularly where, as here, the arguably unexhausted claims appear to have been procedurally defaulted in any event. Thus, I read the above language inNowaczyk to apply only to mixed petitions that, unlike the present one, include unexhausted claims that are on their face at least colorable.
A. Exhausted Grounds
Under the provisions of AEDPA, a federal court may not grant an application for a writ of habeas corpus unless the state court decision below was (1) "contrary to, or an unreasonable application of clearly established" federal law, as determined by the Supreme Court, or (2) "based on an unreasonable determination of the facts in light of the evidence" presented during the state court proceeding. 28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases." James v. Marshall, 322 F.3d 103, 106 (1st Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). The state court has engaged in an "unreasonable application" of clearly established law if that court "'identifies the correct governing legal principle from [Supreme Court] cases but unreasonably applies it to the facts' of the petitioner's case, or if the state court either 'unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" James, 322 F.3d at 106 (quotingWilliams, 529 U.S. at 407)).
Review of state court decisions for purposes of § 2254 is carried out with the presumption that "state courts know and follow the law." Holland v. Jackson, 124 S. Ct. 2736, 2739 (2004) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Indeed, "§ 2254(d) requires that 'state court decisions be given the benefit of the doubt.'" Id. Thus, "whether a state court's decision was unreasonable must be assessed in light of the record the court had before it,"Holland, 124 S. Ct. at 2737-38, and "[t]o be an unreasonable application of governing law, the state court's determination must not only be incorrect but also be objectively unreasonable." Horton v. Allen, 370 F.3d 75, 80 (1st Cir. 2004). "In other words, if the petition presents a close call, it must be rejected, even if the state court was wrong." Id.
1. Substitution of Counsel
In his first motion for a new trial, Asadoorian contended that the trial court deprived him of his Sixth Amendment right to counsel by refusing his request to dismiss his lawyer. During jury impanelment on the first day of trial, March 3, 1993, the clerk asked Asadoorian to stand before the jury venire, and the following transpired:
THE CLERK: You may be seated. THE DEFENDANT: Your Honor — THE CLERK: You may be seated, sir. THE DEFENDANT: — I would like to dismiss my lawyer. THE COURT: Have a seat, please. Have a seat. We're going to pick fourteen jurors now. Have a seat.
Memorandum of Law in Support of Petition for Writ of Habeas Corpus, at 14.
At the evidentiary hearing held for Asadoorian's first motion for a new trial, Asadoorian testified that the exchange on the first day of trial was the last of several attempts by him to relate to the judge his dissatisfaction with his appointed trial lawyer, Paul O'Neill. He claimed that he had been in constant conflict with O'Neill and that he had repeatedly attempted to inform the trial court that he wished to fire O'Neill but had been rebuffed in each attempt.
In denying the first motion for a new trial, Judge Hely, who had been the trial judge, noted that Asadoorian's only reference to discharging O'Neill was on the first day of trial. Judge Hely stated that during the impanelment he "did not refuse to hear [Asadoorian] about discharging his attorney" but rather "simply prevented [Asadoorian] from prejudicing his case by addressing this issue in front of the full jury venire." Memorandum of Decision and Order on Motion for New Trial, at 7. Judge Hely noted that prior to trial Asadoorian made at least nine appearances before the court, including an appearance one week prior to trial, and Asadoorian never once indicated orally that he wished to discharge O'Neill. Id. He further stated that while Asadoorian was prevented from raising the matter during impanelment, he was not prevented from moving to discharge O'Neill by written or oral motion at any time thereafter out of the presence of the jury. Id. at 8. Judge Hely concluded that "[Asadoorian's] statement about discharging his attorney during the impanelment was an attempt to delay the trial or cause a mistrial. The matter was never raised again because [Asadoorian] chose not to. After impanelment proceeded, [Asadoorian] was satisfied with Mr. O'Neill. He knew that his attorney was well prepared and effectively presenting his case." Id. at 8-9. Judge Hely also found that Asadoorian never instructed O'Neill to move to withdraw and that throughout the trial Asadoorian "willingly and actively cooperated" with O'Neill in his defense.Id. at 9.
I find that Judge Hely's decision to deny Asadoorian's motion for a new trial was neither contrary to nor an unreasonable application of federal law under § 2254. As an initial matter, Asadoorian cannot point to any clearly established Supreme Court precedent that sets forth a right to substitute counsel. In his brief, Attorney Kamholtz points to the Supreme Court's decision in Morris v. Slappy, 461 U.S. 1 (1983), but the Court in that case held that the Sixth Amendment does not guarantee a "meaningful relationship" between an accused and his counsel.Id. at 13. Attorney Kamholtz attempts to carve an affirmative rule out of the Court's qualifying statement in Slappy, which itself is clearly dicta, that "broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Id. at 11-12 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). This argument is unavailing.
As an initial point, the quote in Slappy from Ungar, while seemingly related to the Sixth Amendment, in fact concerns due process implications of refusing continuances; the holding inUngar was that the trial judge's decision not to grant a one-week continuance did not offend the requirements of due process. Thus, the quote from Ungar in Slappy implies only that in some circumstances the refusal of a continuance might violate an individual's due process rights — not his or her Sixth Amendment right to counsel. 376 U.S. at 589. Here, Asadoorian never asked for a continuance, either during the impanelment or otherwise; he merely stated that he wanted to dismiss his lawyer, and his claim in this petition has been framed in terms of his Sixth Amendment right to counsel, not his due process rights.
Even assuming that the Supreme Court had clearly established, either in Slappy, Ungar, or some other unidentified case, a right to substitute counsel, I find that the trial court did not err in refusing to allow Asadoorian to dismiss O'Neill during the impanelment. As Judge Hely found, Asadoorian had numerous opportunities to present a motion, outside the presence of the jury either orally or in writing, to dismiss O'Neill. He additionally could have urged O'Neill to withdraw, which Judge Hely found he did not. Because Asadoorian has not shown by "clear and convincing evidence," 28 U.S.C. § 2254(e)(1), that Judge Hely's conclusions in his memorandum accompanying his denial of Asadoorian's first motion for a new trial were erroneous, I am bound by those conclusions here. Given Judge Hely's determination that Asadoorian's request during the impanelment was a delay tactic and his further determination, discussed below in connection with Asadoorian's ineffective assistance of counsel claim, that O'Neill's performance was not deficient, I conclude that habeas relief is not warranted for the trial court's failure to discharge O'Neill. See Castillo v. Matesanz, 348 F.3d 1, 10 (1st Cir. 2003).
To the extent Asadoorian attempts to implicate his constitutional right of self-representation, I find that his statements during the impanelment cannot reasonably be construed as a waiver of his right to counsel or a desire to proceed without counsel. See Tuitt v. Fair, 822 F.2d 166, 177 (1st Cir. 1987) (requiring express waiver of right to counsel before recognizing right to proceed pro se is proper procedure),cert. denied, 484 U.S. 945 (1987); United States v. Allen, 789 F.2d 90, 94 (1st Cir. 1986) (rejecting appellant's argument that district court failed to respond to an implicit request to proceed pro se because "appellant made no indication of a desire to proceed without counsel"), cert. denied, 479 U.S. 846 (1986).
In addition to challenging the underlying decision not to allow dismissal of O'Neill, Asadoorian additionally challenges Judge Hely's refusal to conduct a hearing on the matter at the time Asadoorian raised the issue. Again, however, Asadoorian has not pointed to any Supreme Court case law clearly establishing a right to such a hearing under these circumstances. The closest approximation to such a right is in language, partially quoted in Slappy, from Ungar. In Ungar, the Court stated:
To be sure, the First Circuit stated in Allen that "[w]here the accused voices objections to appointed counsel, the trial court should inquire into the reasons for the dissatisfaction." 789 F.2d at 92. However, the Allen court did not derive the rule from any direct Supreme Court precedent. Additionally, while the Supreme Judicial Court has stated that "a judge must permit a defendant to advance his reasons for wanting to discharge his attorney," Commonwealth v. Moran, 388 Mass. 655, 659 (1983); see also Commonwealth v. Chavis, 415 Mass. 703, 711 (1993), a state law rule is not the proper basis for relief under § 2254. See Luna v. Massachusetts, 354 F.3d 108, 112 (1st Cir. 2004).
The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.376 U.S. at 589 (citations omitted).
Ungar does not advance Asadoorian's case. As noted above, any right extracted from Ungar that a defendant has to a hearing would relate to a motion for a continuance, and Asadoorian made no such motion. In any event, as indicated in the denial of Asadoorian's first motion for a new trial, Judge Hely's decision to cut short Asadoorian's request to dismiss O'Neill during the impanelment was not motivated by a "myopic insistence upon expeditiousness" but rather stemmed from a concern about prejudicing the jury. Thus, I conclude that Judge Hely's failure to hold a hearing following the exchange during the impanelment — and his subsequent denial of a new trial after a hearing on the basis of that failure — was not an unreasonable application of clearly established federal law under § 2254.
Even if Judge Hely's failure to hold a hearing was an unreasonable application of clearly established federal law as established by the Supreme Court, it would not be a basis for habeas relief because it would be harmless error. See Sanna, 265 F.3d at 15. The evidentiary hearing Judge Hely conducted in connection with Asadoorian's motion for a new trial confirmed that Asadoorian did not have an adequate basis to discharge O'Neill and further that any failure to conduct a hearing was harmless error because O'Neill's performance was adequate. See Allen, 789 F.2d at 93 (noting that hearing determined that conflict was not so great as to make counsel's representation inadequate); United States v. Richardson, 894 F.2d 492, 497 (1st Cir. 1990) (same); United States v. Machor, 879 F.2d 945, 952 (1st Cir. 1989) (same), cert. denied, 493 U.S. 1094 (1990). But cf. United States v. Prochilo, 187 F.3d 221, 228 (1st Cir. 1999) (because of failure of district court to conduct hearing, appellate court on direct review had no way of assessing counsel's performance).
2. Ineffective Assistance of Counsel
In his application to the Supreme Judicial Court for further appellate review of the denial of his first motion for new trial, Asadoorian claimed ineffective assistance of counsel for O'Neill's performance at trial on six grounds: O'Neill's (1) failure to investigate and present favorable witnesses and proofs, (2) failure to engage in pretrial motion practice, (3) directing Asadoorian to lie on the stand, (4) ineffective crossexamination of the prosecution's witnesses, (5) declining the trial court's "fresh complaint" and "consciousness of guilt" instructions, and (6) directly undercutting Asadoorian's defense in his opening statement and closing argument. Memorandum of Law in Support of Petition for Writ of Habeas Corpus, at 23.
Because the Supreme Judicial Court denied Asadoorian's petition for further appellate review without explanation, I "look through" to the last reasoned state decision, which was Judge Hely's order denying the underlying motion for a new trial. See Gunter v. Maloney, 291 F.3d 74, 80 (1st Cir. 2002) (quoting Ylst v. Nunemaker, 501 U.S. 797, 804 (1991)).
The Appeals Court decision summarily affirmed the trial court's denial of the motion for a new trial in a short unpublished opinion without detailed explanation.
In denying Asadoorian's first motion for new trial, Judge Hely concluded that O'Neill's performance at trial was fully adequate. He made the following general observations: "Mr. O'Neill had had many years of experience trying cases before juries. His recent Superior Court criminal experience included a rape trial. His presentation was excellent. He had a polished professional demeanor and an engaging personal style that was quite effective with the jurors. Mr. O'Neill was aggressive in asserting his client's cause before the court and before the jury." Memorandum of Decision and Order on Motion for New Trial, at 10.
Judge Hely also specifically addressed each of the asserted grounds for ineffective assistance of counsel in turn. It is unnecessary to rehearse Judge Hely's findings and conclusions in detail here. Instead, I will focus on Asadoorian's primary contentions.
As an initial matter, I note that Judge Hely applied the correct standard for the claims. He used the Massachusetts standard for evaluating ineffective assistance of counsel claims set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), which is equivalent to the federal standard set forth inStrickland v. Washington, 466 U.S. 668 (1984). See Mello v. DiPaulo, 295 F.3d 137, 144 (1st Cir. 2002) (observing that theStrickland and Massachusetts standards are the "functional equivalent" for purposes of proceeding with the § 2254(d)(1) determination).
Asadoorian's primary basis for the ineffective assistance claim was that O'Neill suborned his perjury at trial. As to this claim, Judge Hely stated:
At trial, Asadoorian testified that while on the night in question he and Green had argued in the car and at his house, he never struck her in any way. He further stated that Green had become hysterical and that he felt like killing himself and pointed his unloaded gun to his own head. According to Asadoorian, Green took the gun from him and put it on the table. They then hugged and later had consensual sex upstairs. He denied any form of forced sex and denied ever pointing a gun at Green.
While I have no doubt that the defendant committed perjury at the trial, it did not end there. His posttrial testimony was simply a new false story offered because the first one did not sell. In his posttrial testimony, the defendant stands out as one of the least credible witnesses I have seen in several years.
. . .
Mr. O'Neill never told the defendant to lie. He never told the defendant what to say in his testimony other than urging him to tell the truth. The defendant told Mr. O'Neill that the sex between him and Mrs. Green on the night of the offenses was consensual. Mr. O'Neill believed that the defendant had a realistic chance of acquittal if he testified truthfully, and he so advised the defendant.
Memorandum of Decision and Order on Motion for New Trial, at 18-19. I find no reason to question Judge Hely's factual determinations on this issue. Judge Hely's conclusions rested on credibility determinations he made on the basis of the trial and the evidentiary hearing on the motion for a new trial. On habeas review, this court is not in a position to question those determinations nor, under AEDPA, does it have the authority to do so absent a strong showing by Asadoorian that they were erroneous. Asadoorian has utterly failed to make such a showing, and thus, I conclude that habeas relief is not warranted as to the suborned perjury ground.
Asadoorian's other major contention was that O'Neill was ineffective because he failed to call witnesses with testimony favorable to Asadoorian. Judge Hely, however, found that O'Neill's decision not to call the witnesses at issue was a well-reasoned tactical choice. As the First Circuit has stated:
The decision whether to call a particular witness is almost always strategic, requiring a balancing of the benefits and risks of the anticipated testimony. The witness may not testify as anticipated or the witness's demeanor or character may impress the jury unfavorably and taint the jury's perceptions of the accused; or the testimony, though sympathetic, may prompt jurors to draw inferences unfavorable to the accused.Lema v. United States, 987 F.2d 48, 54 (1st Cir. 1993) (citation omitted); see also Horton, 370 F.3d at 86.
Judge Hely concluded that each of the potential witnesses posed problems for Asadoorian's defense and therefore O'Neill's decision not to call them was fully supportable. While it is true that "weak witnesses in an otherwise hopeless case are better than none" and thus "the failure to call weak witnesses cannot be justified merely by pointing to the potential weaknesses of each individual witness," Epsom v. Hall, 330 F.3d 49, 53 (1st Cir. 2003), it is also true that "[t]rial lawyers make countless tactical choices and unless the net reckoning is 'patently unreasonable,' counsel's judgment is not constitutionally defective." Id. at 54 (quoting Phoenix v. Matesanz, 233 F.3d 77, 82 n. 2 (1st Cir. 2000)). Moreover, "even a badly flawed judgment is not enough: to show prejudice, the likelihood of a different result must be reasonably high." Epsom, 330 F.3d at 54. Judge Hely concluded after conducting an evidentiary hearing that O'Neill's failure to call the witnesses Asadoorian believes he should have called did not prejudice the defense, and I find no reason here to disagree with that conclusion.
Similarly, I find that Asadoorian has not demonstrated that Judge Hely's determination as to any of the other stated grounds for ineffective assistance of counsel was either contrary to or an unreasonable application of clearly established federal law under § 2254. Attorney Kamholtz's brief restates the evidence offered during the evidentiary hearing on the first motion for a new trial and indicates that Judge Hely reached the wrong conclusion. However, stating in conclusory fashion that the evidence did not support the judge's determination does not meet the stringent standards of § 2254. For his part, Asadoorian does little to demonstrate that Judge Hely's determinations were erroneous, let alone an unreasonable application of clearly established federal law. Accordingly, I conclude that habeas relief is not warranted on the basis of ineffective assistance of trial counsel.
Asadoorian suggests that exogenous findings of professional ethical misconduct by O'Neill supports a finding of ineffective assistance of counsel. In 1972, O'Neill apparently was disbarred following convictions for forgery, uttering, and receiving stolen vehicles. He was reinstated in 1979, but in December of 1993, after Asadoorian's convictions, O'Neill was disbarred a second time for failing to account for fees, failing to pay outside counsel for work, and failing to represent his client zealously. This conduct involving other clients, while plainly reprehensible, does not alone constitute an ineffective assistance of counsel claim as to Asadoorian. See United States v. Dumas, 796 F. Supp. 42 (D. Mass. 1992); Lopez-Torres v. United States, 700 F. Supp. 631 (D.P.R. 1988), aff'd, 876 F.3d 4 (1st Cir. 1989), cert. denied, 493 U.S. 979 (1989);Hernandez v. Wainwright, 634 F. Supp. 241, 246 (S.D. Fla. 1986), aff'd, 813 F.2d 409 (11th Cir. 1987). This is especially so given Judge Hely's determination that O'Neill's representation of Asadoorian was satisfactory.
3. Prosecutorial Misconduct
In his first motion for new trial, Asadoorian contended that the prosecution's questions of him on cross-examination were improper and thereby infringed his due process rights. Judge Hely noted that a question about whether a certain individual would testify for Asadoorian was properly objected to by O'Neill. He further stated that a question about Asadoorian's obtaining a gun by having his wife get a license did not prejudice Asadoorian in any material way. Judge Hely further stated:
The remainder of the cross-examination questions complained of in the defendant's memorandum shows neither ineffective assistance nor the lack of a fair trial. Attorney O'Neill successfully objected to several of the questions cited by the defendant's latest attorney. The questions cited in the defendant's memorandum were not posed in bad faith; they were all well-supported by testimony from Mrs. Green, hospital records, observations of her injuries, and other evidence in the case.
Memorandum of Decision and Order on Motion for New Trial, at 29-30. Other than asserting in a conclusory fashion that the alleged prosecutorial misconduct infringed his due process rights, Asadoorian provides no reason to question Judge Hely's determination. The First Circuit stated in Mastracchio v. Vose, 274 F.3d 590 (1st Cir. 2001):
On habeas review, however, our function is not to punish a state for prosecutorial misconduct unless that misconduct gave rise to a constitutional error that prejudiced the petitioner. Here, the state's highest court concluded that, although the petitioner did not receive a perfect trial, he received a fair one. Despite the fact that the state court committed three errors in its multifaceted analysis, we conclude that its bottom-line assessment was not unreasonable. It follows that the petitioner has not shown the requisite constitutional injury (and, accordingly, that the district court did not err in refusing to issue a writ of habeas corpus).Id. at 604-05. Similarly here, Asadoorian has failed to demonstrate the requisite constitutional injury, and accordingly I conclude that his claims of prosecutorial misconduct do not warrant habeas relief.
B. Supplemental Grounds
In his supplemental pro se brief, Asadoorian contends that the memorandum submitted by Attorney Kamholtz did not adequately present all of the issues he raises in this petition. He contends that:
Conspicuously Missing are the Issues pertaining to court officers and official Misconduct, Fraud, Perjury, Cover up, Conspiracy, Bias, Conflicts of Interest, and Crimes, ELITE DEVIANCE, etc.
Respondent contends that insofar as any of these contentions state a potential basis for relief under § 2254, they were deemed procedurally defaulted by the Appeals Court's review of Asadoorian's second motion for a new trial. In affirming the trial court's order denying the motion, the Appeals Court stated in a brief unpublished rescript:
As it has not been made to appear that all the claims in the defendant's second motion for a new trial had not been previously adjudicated adversely to him (by this court) or that there has been no waiver of these claims, we have no valid basis on which to conclude that the motion judge improperly denied the defendant's second motion for a new trial.2002 WL 992363 (Mass.App.Ct.); 54 Mass. App. Ct. 1116 (table). Thus, respondent appears to be correct that the Appeals Court deemed the issues Asadoorian presented in the appeal of his second motion for a new trial to be either waived or otherwise procedurally defaulted.
Mass. R. Crim. P. 30 states:
Waiver. All grounds for relief claimed by a defendant under subdivisions (a) and (b) of this rule shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.
It is difficult, however, to determine whether the additional claims Asadoorian raises here in his supplemental brief are identical to the claims that were deemed procedurally defaulted by the Appeals Court because of the confusing nature of Asadoorian's pro se filings. It is not altogether clear what claims he raised in the appeal of his second motion for new trial and what claims he here raises. The terse and awkward ruling by the Appeals Court does little to clarify which precise claims it considered to be procedurally barred.
Muddying matters even further, Asadoorian vacillates in his position about whether and when he presented the claims he presents in his supplemental brief. On the one hand, he claims that he properly raised in the state courts all of the issues that he now raises but that the state courts did not address them. On the other hand, he claims that he instructed his counsel to include the issues in the post-conviction briefs but that his counsel refused to do so.
If that were true, the issues would have been properly exhausted, and review in this court of the issues would not be AEDPA's "contrary to" or "unreasonable application of" standard, but rather would be de novo. See Ellsworth v. Warden, 333 F.3d 1, 4 (1st Cir. 2003); Watkins v. Murphy, 292 F.3d 70, 75-76 (1st Cir. 2002); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001), cert. denied, 535 U.S. 1018 (2002).
In the end, deciding which version is the accurate one is not important because neither takes Asadoorian very far. First, even if it is true, as Asadoorian claims, that the lawyers representing him in the post-conviction matters disobeyed his instructions to present the additional issues to the state courts, the case law makes clear that a federal habeas petition cannot be grounded in a claim of ineffective assistance of counsel in the post-conviction setting, see Coleman v. Thompson, 501 U.S. 722, 752 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings.");Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further."), and Congress expressly disallowed such grounds in AEDPA. 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Consequently, Asadoorian cannot under § 2254 claim constitutionally ineffective assistance of counsel as to his post-conviction motions, see Wainwright v. Torna, 455 U.S. 586 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance), and Asadoorian must "bear the risk of attorney error that results in a procedural default." Coleman, 501 U.S. at 752-53.
Asadoorian claims his attempts to submit supplemental pro se materials were denied. The docket, however, reflects no such attempts. In any event, even if he did attempt to submit supplemental pro se materials, denial of those attempts by state courts would not advance his cause here because there is no clearly established federal right by a represented defendant to make pro se submissions.
Second, Asadoorian's insistence in the alternative that he did raise all of the additional issues in the state court leads to the conclusion that they were deemed procedurally defaulted by the state Appeals Court. In his pro se reply brief, Asadoorian states that "Petitioner did thoroughly raise all claims on appeal and in FAR. So did his lawyer. They were in his Moffett Supl. Appellate Brief and in his Interlocutory Appeals." He further states:
ALL STATE COURTS HAD A FULL FAIR OPPORTUNITY TO ADDRESS ALL ISSUES! THEY CHOSE TO IGNORE OBSTRUCT THEM! FALSELY ALLEGED THEY ARE WAIVED OR BARRED (INC: MOFFETT FAR BRIEFS their references to Petitioner's Moffett Brief, etc.). Thus Petitioner has thoroughly and Properly Exhausted All State remedies.
Asadoorian thus suggests that all of the additional claims he raises here in his supplemental pro se brief were presented in the supplemental pro se brief he submitted to the Appeals Court in appealing the denial of his second motion for new trial. This would imply that they were encompassed in the Appeals Court's ruling that the issues presented had either been previously adjudicated adversely to him or waived. The Appeals Court ruling in that event would act as an independent and adequate state law ground barring federal habeas corpus relief on the additional claims unless Asadoorian can show either cause for the default and prejudice from the claimed violation of federal law, or that a fundamental miscarriage of justice will result if the claims are not considered. Coleman, 501 U.S. at 750; Gunter, 291 F.3d at 78. Given that Asadoorian has shown no such cause or fundamental miscarriage of justice, his additional claims cannot be grounds for relief under § 2254.
Even were I to assume that the additional claims were not procedurally barred, I cannot find that they have merit. Indeed, they are hardly comprehensible. I recognize that as a pro se petitioner, Asadoorian is entitled to some leniency in the interpretation of his claims. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (noting that courts should read pro se pleadings less strictly than pleadings drafted by lawyers); Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999) (applying a more tolerant standard of particularity to apro se motion for 28 U.S.C. § 2255 habeas relief). However, even with such a indulgent eye towards Asadoorian's supplemental briefs, I find that he presents no colorable basis for habeas relief.