Opinion
CA 98-372T.
March 15, 2000.
REPORT AND RECOMMENDATION
On July 14, 1998, Plaintiff Gerald S. Mastracchio ("Mastracchio") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mastracchio is currently serving a life sentence at the Adult Correctional Institution ("ACI") stemming from his March 1987 conviction for the first-degree murder of Richard Valente. Mastracchio argues that this Court should vacate his conviction because the prosecution unconstitutionally failed to disclose evidence favorable to the defendant. In 1994, Mastracchio applied for post-conviction relief in the state courts. On September 21, 1994, the Superior Court vacated Mastracchio's conviction and granted a new trial. The State appealed and in 1997, the Rhode Island Supreme Court sustained the State's appeal and vacated the judgment of the Superior Court. Mastracchio now seeks relief from the federal courts.
128 U.S.C. § 2254(a) states:
(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.
The District Court has referred this matter for preliminary review, findings, and recommended disposition. See 28 U.S.C. § 636(b)(1)(B); Local Rule 32(c). Based upon my review of the legal memoranda and my independent research, I recommend that the District Court deny Mastracchio's petition for a writ of habeas corpus.
This Court did not hold a hearing because the written record and memoranda were sufficient.
Background
A. Underlying Criminal CaseA brief synopsis of the underlying criminal matter will elucidate the legal issues facing this Court. On or about December 11 or 12, 1979, Richard Valente's head and face was beaten, and his body was transported to the highest point on the old Jamestown Bridge. While semiconscious, the perpetrators tossed Valente over the bridge railing and into Narragansett Bay. Valente drowned. He was only thirteen-years-old.
For a complete rendition of the underlying facts, see State v. Mastracchio, 546 A.2d 165 (R.I. 1988); State v. Mastracchio, 605 A.2d 489 (R.I. 1992); and Mastracchio v. Moran, 698 A.2d 706 (R.I. 1997).
On December 15, 1979, Valente's body washed up on the shore some three miles from the Jamestown Bridge. The autopsy established that Valente suffered severe facial and head injuries, but was alive when he entered the waters of Narragansett Bay. The coroner deemed a homicide to be the cause of death. The autopsy also revealed a plastic plate that a surgeon had inserted into Valente's head following an automobile injury in 1976.
During this time period, Peter Gilbert ("Gilbert"), the government's key witness in the Mastracchio trial, was incarcerated in a Florida prison. Gilbert was a crime partner of Gelardo Mastracchio ("Gelardo"), the plaintiff's father. Gilbert escaped from the Florida prison in 1983 and fled to Chattanooga, Tennessee. In the summer of that year, Gilbert telephoned Gelardo and they decided to go into business together again, this time selling narcotics. Gilbert returned to Rhode Island and also worked with Gelardo's son, plaintiff in this case.
While working together, Mastracchio boasted to Gilbert about his criminal acumen. Specifically, Mastracchio "told Gilbert about a murder that he had committed some years earlier along with another juvenile named Steven Dionne ("Dionne"), a murder that involved a thirteen-year-old boy who they had beaten and tossed over the Jamestown Bridge, a factual situation identical to the Valente murder and which the police later concluded was the Valente murder." Mastracchio v. Moran, 698 A.2d 706, 707 (R.I. 1997). Mastracchio also explained to Gilbert that the purpose of this murder was to "silence" Valente, as Valente had already told the West Warwick police about various crimes committed by Mastracchio and Dionne.
On February 28, 1985, after a falling out between Gilbert and Gelardo, a confidential informant told the Providence police that Gilbert had escaped from a Florida prison and that he had a sawed-off shotgun in his home. After obtaining an arrest and search warrant, the police searched Gilbert's home. They did not find a sawed-off shotgun, but did find narcotics that Gilbert was dealing with Gelardo. The police arrested Gilbert and charged him with possession of narcotics. Gilbert refused to talk to the police at that time.
Gilbert's tune changed, however, after surmising that Gelardo was the "rat" who told the informant the information that led the police to Gilbert. Gilbert was now prepared to talk and the police took his wife and two children into protective custody.
Gilbert told the police about numerous crimes, including murders and robberies that he and others committed. Pertinent to this petition, in March of 1985, Gilbert told police the story that Mastracchio had told him about the murder of a thirteen-year-old boy. Gilbert described, in detail, the vicious beating to the victim's face and head and the heavy fog that pervaded the sky as Mastracchio and Dionne transported the victim to the highest part of the old Jamestown Bridge. Gilbert also described in detail how Mastracchio and Dionne, at that point on the bridge. while the victim was still alive and still "making sounds," tossed him over the bridge and down into Narragansett Bay. Gilbert told the police that Mastracchio told him that he watched the body fall into the bay, after which he and Dionne drove away and returned home. In addition, Gilbert explained the perpetrators' motive was to silence the victim and prevent him from talking to the police. Gilbert then expressed to the police how Mastracchio told him that the victim was once a close friend, but that soon after having had a plastic plate inserted in his head as a result of a serious automobile accident, the victim had not been the "same." The police discovered that Gilbert's tale fit exactly the intimate details of the unsolved Valente murder.
On three other separate occasions, Gilbert repeated the same intimate details about the Valente murder: (1) in November of 1985 to the Rhode Island State Police, (2) in early December of 1985 to the grand jury, and (3) on December 12, 1985 at Mastracchio's bail hearing. In March of 1987, the State of Rhode Island tried Mastracchio and a jury found him guilty of the first-degree murder of Valente. Gilbert, the State's primary witness, testified at this trial. The court sentenced Mastracchio to a mandatory life term.
At Mastracchio's trial, Gilbert testified about his conditions of confinement. Gilbert testified that he did not receive cash in hand from the Attorney General. Gilbert also stated that
A. My family is kept in a[n] undisclosed location in protective custody. Myself, I'm in a lockup situation, in the custody of the Providence Police Department. I have a 24 hour guard, seven days a week.
Q. And describe the facility that you're in?
A. I live in what could be described as a cellblock area. Bars on the window, there are three locked doors, successive locked doors, with a[n] armed guard and I have no access to the outside world or anything like that.Mastracchio et al. v. Rhode Island, at 53 CA No. PM/89-5113 (Super.Ct. 1994).
The record also shows that Mastracchio's attorney vigorously cross-examined Gilbert. The Supreme Court of Rhode Island summarized the attack on Gilbert's credibility as follows:
Trial counsel brought out and told the jury of Gilbert's admission to committing three murders, to committing an armed robbery, to marrying three times, to lying to the woman he married, to lying on one of his marriage applications, to being a bigamist and a burglar, to being guilty of fraud and theft, to defrauding insurance carriers, and to obtaining money under false pretenses. The jury was told that he also admitted to breaking his marriage vows. Additionally, the jury was told that Gilbert was a liar, a perjurer, and a cocaine addict. The jury was also told that as his reward for testifying against [Mastracchio] and other high-profile criminals, the state was going to recommend favorable disposition on criminal charges pending against Gilbert in Florida, Maine, and Massachusetts, and for several of his yet-to-be prosecuted pending offenses in this state was going to recommend a fifty-year sentence with ten of those years actually to be served in prison.Mastracchio v. Moran, 698 A.2d at 714.
The Supreme Court of Rhode Island's statement that the jury was told that Gilbert was a perjurer seems to conflict with their later statement that defense counsel did not cross examine Gilbert about his 1976 perjury. Mastracchio v. Moran, 698 A.2d at 716. One can reconcile these statements in two ways: (1) the fact that Gilbert committed perjury in 1976 came out during direct-examination and defense counsel did not conduct cross-examination on the issue, or (2) Gilbert committed perjury other than the 1976 perjury and that came out either on direct and/or cross-examination. Nevertheless, the Supreme Court of Rhode Island affirmatively states that the jury knew that Gilbert was a perjurer and this Court must accept that fact.
B. Procedural Posture
Mastracchio appealed his conviction, arguing that the "Superior Court lacked jurisdiction to hear his case because at the time of the murder he was a seventeen-year-old youth subject only to Family Court jurisdiction." State v. Mastracchio, 546 A.2d 165, 167 (R.I. 1988). The Supreme Court of Rhode Island remanded the matter "to the Superior Court for a de-novo-waiver hearing to determine whether the Family Court would have waived jurisdiction." Id. at 175. The Supreme Court otherwise affirmed Mastracchio's conviction regarding all other issues raised in his appeal.
A Superior Court justice conducted a de novo hearing and determined that a Family Court waiver was appropriate under the circumstances. The Supreme Court of Rhode Island denied Mastracchio's appeal from that decision. See State v. Mastracchio, 605 A.2d 489 (R.I. 1992).
Meanwhile, in 1989, Mastracchio also filed an application for post-conviction relief. Mastracchio based his application on newly discovered evidence concerning the nature of the police department's custody and confinement of Gilbert. Specifically, Mastracchio asserted that the prosecution violated his constitutional rights by failing "to disclose all the rewards and inducements it had promised in exchange for Gilbert's testimony," and by allowing Gilbert to misrepresent the conditions of his custody. Mastracchio v. Moran, 698 A.2d at 710. In 1994, a Superior Court Judge agreed with Mastracchio and held that Mastracchio did not receive a fair trial under the due process standards set forth in Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Bagley, 473 U.S. 667 (1985). The Superior Court found that the undisclosed evidence regarding Gilbert's rewards and inducements would sufficiently binder Gilbert's credibility so as to leave no evidence for the jury to convict Mastracchio. Consequently, the Superior Court vacated Mastracchio's conviction and ordered a new trial. The State appealed this decision. In 1997, the Supreme Court of Rhode Island reversed the Superior Court's decision and ordered Mastracchio remanded to the ACI to resume serving the life sentence previously imposed. The Supreme Court of Rhode Island held that the newly discovered evidence was not material under the standard established by the United States Supreme Court in United States v. Bagley, 473 U.S. 667 (1985) andKyles v. Whitley, 514 U.S. 419 (1995). On September 5, 1997, the Supreme Court of Rhode Island denied Mastracchio's petition for reargument. On February 23, 1998, the United States Supreme Court denied Mastracchio's petition for a writ of certiorari. Then, on July 14, 1998, Mastracchio filed the present petition for a writ of habeas corpus in the federal court.
Mastracchio learned of the true nature of the police department's custody and confinement of Gilbert after Gilbert died of a heart attack in June of 1988 on his way to a sky-diving appointment in an automobile carrying cocaine. Gilbert was supposed to be serving his sentence at that time. See Memorandum in Support of Petition for Writ of Habeas Corpus by a Person in State Custody at 4 (July 20, 1998).
C. Impeachment Evidence Not Disclosed to the Defendant
The prosecution did not disclose to the defense evidence that Mastracchio deems to constitute rewards or inducements: family visits, custodial recreation, financial arrangements, possession of a gun, access to or use of unlawful controlled substances while in custody, consumption of alcoholic beverages, and freedom to leave the police station without a police escort. This Court will describe each area individually, but analyze them collectively as required by Kyles v. Whitley, 514 U.S. at 436.
1. Family Visits
The prosecution did not disclose the following facts about Gilbert's family visits:
(a) From May 1985 through August 1985, Gilbert lived with his wife and her children at the Providence police station. Gilbert's wife and children then relocated to Florida. See Mastracchio et al. v. Rhode Island, at 3 CA No. PM/89-5113 (Super.Ct. 1994).
(b) On November 8, 1985, Gilbert's wife returned to Providence and visited with Gilbert for one week. See id.
(c) From December 20, 1985 through January 2, 1986, and again from March 27, 1986 through April 7, 1986, Gilbert's family visited him in Rhode Island. See id.
(d) On June 17, 1986, Gilbert flew to Florida to dispose of pending charges and to spend time with his family at a hotel in Brooksville, Florida. Gilbert returned to Rhode Island on June 20, 1986. See id.
(e) From October 17 to October 21, 1986, Gilbert visited his family again and was accompanied by the Providence police. See id.
(f) From December 8, 1986 through January 5, 1987, the State of Rhode Island rented a house in Narragansett for Gilbert and his family to spend the holiday season. Gilbert's family flew into Narragansett at the State's expense. During the visit, on a New Year's Eve videotape, Gilbert was filmed with Providence police stating: "The criminal justice system has been very, very good to us." Id.
(g) On February 15, 1987, Gilbert traveled to Florida again to spend time with his family and returned to Rhode Island on February 19, 1987. See id.
(h) In March of 1987, Gilbert went to Florida again and this time, attempted to buy a car. See id. at 4.
(i) From April 20 to April 27, 1987, Gilbert visited his family in Florida, where a videotape is made in which Gilbert's police guard is sleeping by the pool at the Holiday Inn and Gilbert is swimming. See Agreed Statement of Facts ¶ 625 at 3.2. Custodial Recreation
The prosecution did not disclose the following facts about Gilbert's custodial recreation:
(a) From January 23 through February 3, 1987, Gilbert stayed at the Ramada Inn in Seekonk, Massachusetts. See Mastracchio et al. v. Rhode Island, at 4 CA No. PM/89-5113 (Super.Ct. 1994).
(b) From February 3 through February 15, 1987, Gilbert stayed at the Omni Biltmore Hotel. See id.
(c) In March of 1987, prior to his testimony at the Mastracchio trial, the Providence police took Gilbert out on numerous outings, "including visits with his mother, grocery shopping trips, recreational outings, dinners at restaurants, trips to Quonset Point, Roger Williams Park, the Slater Park Zoo, the Scituate walking trail, Mystic Connecticut and to Lucielle's Hair Fashions and Hair Mania for haircuts. During that same period he was taken out to dinner by the police at Cricket's Restaurant in the Quincy Market, Boston." Id.
(d) Gilbert enjoyed skydiving on February 21, 22, 28, 29 and March 7, 8, 14, and 15, 1987. All of these trips occurred before Gilbert testified at the Mastracchio trial and the Department of Attorney General reimbursed Gilbert for the expenses associated with his skydiving. After the trial, Gilbert went skydiving on March 21 and 22, 1987, but the Attorney General did not reimburse him for this weekend. See id. at 4-5.3. Financial Arrangements
The prosecution did not disclose the following facts about Gilbert's financial situation:
(a) The Providence police cashed the following checks and disbursed the cash to Gilbert as he produced receipts: September 18, 1986 — $2,000; October 29, 1986 — $2,000; November 18, 1986 — $2,000; December 1, 1986 — $2,000; December 17, 1986 — $4,000; January 9, 1987 — $2,000; January 29, 1987 — $2,000; February 26, 1987 — $2,000; and March 5, 1987 — $2,000. These checks total $20,000 and average more than $3,300 per month. See Mastracchio et al. v. Rhode Island, at 5 CA No. PM/89-5113 (Super.Ct. 1994) (emphasis added).
(b) The Department of Attorney General reimbursed Gilbert for jewelry, flowers, and skydiving lessons. See id.
(c) On February 18, 1987, Gilbert borrowed $14,107.68 to purchase a 1987 Chevrolet Astrovan in Florida. The Department of the Attorney General verified Gilbert's income as $2,000 per month when the Chevrolet dealership called the Department. See id.
(d) Starting March 19, 1985, Gilbert collected welfare benefits and the Providence police cashed some of his welfare checks for him. See id. at 6.4. Possession of a Gun
While the parties disagree, the Superior Court found that "the evidence fairly supports the conclusion that, at some time during his custody prior to the [Mastracchio trial] . . ., Peter Gilbert had possession of at least one pistol. When and where those occasions were, and whether anyone in authority knew about them and when is a different set of questions." Mastracchio et al. v. Rhode Island, at 13 CA No. PM/89-5113 (Super.Ct. 1994).
5. Access to or use of Unlawful Controlled Substances While in Custody
The Superior Court also concluded that "[w]hile it is probable that Peter Gilbert smoked marijuana during [his custodial confinement], his use of cocaine is not so well established. What is abundantly clear is that the people who should have known one way or the other, his custodians, did not themselves know." Mastracchio et al. v. Rhode Island, at 19-20 CA No. PM/89-5113 (Super.Ct. 1994).6. Consumption of Alcoholic Beverages
The Superior Court found that "Gilbert kept and consumed beer in his apartment in the company of police custodians as well as members of the prosecution team. He also used a liqueur known as sambucco (sic) in his coffee. It was also well known that from time to time he consumed alcoholic beverages, most often beer at beverage establishments." Mastracchio et al. v. Rhode Island, at 20 CA No. PM/89-5113 (Super.Ct. 1994).7. Freedom to Leave the Police Station without a Police Escort
The Superior Court stated that "[t]he testimony is decidedly conflicting as to whether or not Peter Gilbert was allowed to travel at large or roam about the police station without a police escort before the [Mastracchio's] trial." Mastracchio et al. v. Rhode Island, at 20 CA No. PM/89-5113 (Sup. Court. 1994).
As noted earlier, defense counsel attacked Gilbert's credibility by emphasizing his long criminal history as well as his tendency to lie under oath. See Mastracchio v. Moran, 698 A.2d at 714. Defense counsel was also cognizant of some details about Gilbert's custodial confinement which counsel learned at a pretrial hearing in the unrelated State v. Broccoli and State v. Mastrofine, CA No. P1/86-580 cases. These details include "Gilbert's month-long stay at a safe house in Narragansett. . . . Defense counsel, however, intentionally chose not to bring out that evidence at [Mastracchio's] murder trial." Mastracchio v. Moran, 698 A.2d at 715. Moreover, Mastracchio's counsel
was aware of the moneys paid to Gilbert by the state and had been given ledger sheets concerning those funds. In addition defense counsel had sat through the entire voir dire of Gilbert when he was thoroughly examined by other counsel in [a unrelated robbery case], a case that was based in great part on Gilbert's testimony as a state's witness. Defense counsel had received a transcript of that voir dire hearing. Defense counsel . . . admitted that he was also aware, prior to [Mastracchio's] trial, that Gilbert, while in police-custody confinement, had access to a telephone, had consumed beer in his quarters, had visited his wife for conjugal visits, had gone out with his wife for an anniversary dinner, had visited with his wife and family for some `30 days around the holidays in 1986,' had visited with his wife at the Holiday Inn, had gone out to eat dinner some `25 to 50 times,' had traveled to Florida twice, had used drugs, had earned between $4,000 to $10,000 per week selling drugs for [Mastracchio's] father, had committed perjury in 1976, and had collected welfare payments while in police custody. Yet despite knowing all those facts, [defense counsel] chose not to question Gilbert about any of those matters during [Mastracchio's] trial.Id. at 715-16.
Gilbert's expenses and entertainment during the three-year period between the time he made his deal to testify and his death amounted to $165,049.88. Based on the aforementioned facts, the Superior Court
This figure is derived from an audit conducted by the Rhode Island State Police after Gilbert's death.
found that the post-conviction-hearing evidence did not support "any conclusion that the prosecution knowingly, or otherwise, withheld or concealed its true sentencing agreement with Gilbert" or that the prosecution knew that "Peter Gilbert perjured himself at these trials" when he testified as to the sentence the state had promised him in return for his cooperation as a witness.Mastracchio v. Moran, 698 A.2d at 711. The Superior Court did find, however, "that Gilbert's testimony effectively served to conceal from [Mastracchio] and his trial counsel certain details of the conditions of his police-custody confinement that could have been construed by the trial jury as revealing a more lenient manner of custodial confinement than portrayed by Gilbert in his testimony to the jury and that as a result [Mastracchio] was denied a fair trial in violation of his right to due process." Id. The Supreme Court of Rhode Island disagreed and found that the aforementioned evidence was not material under the due process standard.
In September of 1986, the Superior Court of Rhode Island rejected the Attorney General's recommendation that Gilbert receive a fifty-year sentence, forty suspended and ten to serve in the custody of the Providence Police Department. Subsequently, the Attorney General amended the written agreement with Gilbert to provide that Gilbert would receive immunity for his testimony if the sentencing Court refused to accept the Attorney General's recommendation of ten years to serve. See Mastracchio et al. v. Rhode Island, at 6 CA No. PM/89-5113 (Super.Ct. 1994).
Issues
(1) Whether the Rhode Island Supreme Court's application of the Bagley and Kyles standard of materiality resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States?"
(2) Whether this Court can examine, via a writ of habeas corpus, the correctness of the Supreme Court of Rhode Island's standard of review over the Superior Court's factual determinations?
Discussion
I. Standard of ReviewA. Habeas Corpus Statute
The standard of review for a federal court pursuant to 28 U.S.C. § 2254(d) is as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C.) ("AEDPA") established this standard of review. Prior to AEDPA's passage, federal courts decided a petitioner's habeas corpus claims de novo because the habeas corpus statute did not require that a federal court pay any special attention to the underlying state court decision. See O'Brien v. Dubois, 145 F.3d 16, 20 (1st Cir. 1998) (citations omitted). Under the current post-AEDPA version of § 2254, however, a state court's decision is the "cynosure of federal review. Only if that decision deviates from the paradigm described in section 2254(d) can a habeas court grant relief."Id.
Nevertheless, Congress did not intend to relinquish "federal courts of their authority independently to assess the merits of federal questions raised in habeas petitions." O'Brien v. Dubois, 145 F.3d at 22 (citing Green v. French, 143 F.3d 865, 874-75 ("[A]mended section 2254(d) does not limit any inferior federal court's independent interpretive authority to determine the meaning of federal law in any Article III case or controversy. Under the AEDPA, we are free, if we choose, to decide whether a habeas petitioner's conviction and sentence violate any constitutional rights."); James S. Liebman Randy Hertz, Federal Habeas Corpus Practice and Procedure § 30.2c, at 1244-45 n. 32 (1998) (cataloguing various statements by Sen. Hatch, Sen. Specter, Rep. Hyde, and President Clinton.); Larry Yackle, A Primer on the New Habeas Corpus Statute, 44 Buff. L. Rev. 381, 422-23 (1996) ("Proponents on curbs on habeas corpus initially sought to eliminate the federal courts' authority to award relief on the basis of claims previously rejected in state court — either by repealing the federal courts' jurisdiction outright or by giving prior state judgments preclusive effect. When those efforts failed in the face of intense opposition, proponents made concessions . . . offering additional assurance that the federal courts would not be denied power to grant relief with respect to meritorious claims.")). Consequently, the First Circuit has developed a standard that strikes a balance between satisfying the statutory mandate to focus on the state court's decision and maintaining some of the federal courts' independence.
B. First Circuit Standard
The First Circuit applies a two-step analysis when examining a state court decision under § 2254(d).
First, the habeas court asks whether the Supreme Court has prescribed a rule that governs the petitioner's claim. If so, the habeas court gauges whether the state court decision is `contrary to' the governing rule. In the absence of a governing rule, the `contrary to' clause drops from the equation and the habeas court takes the second step. At this stage, the habeas court determines whether the state court's use of (or failure to use) existing law in deciding the petitioner's claim involved an `unreasonable application' of Supreme Court precedent.O'Brien v. Dubois, 145 F.3d at 24. The First Circuit emphasized that regarding the first inquiry, "a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." Id. at 24-5 (noting that "the key inquiry . . . is whether a Supreme Court rule . . . can fairly be said to require a particular result in a particular case"). Regarding the second prong, the First Circuit requires an objectively reasonable standard: the question is "whether the state court's derivation of a case-specific rule from the Court's generally relevant jurisprudence appears objectively reasonable."Id. at 25. To issue a writ of habeas corpus, "the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." Id. (citations omitted).
In the case at bar, "the Supreme Court has prescribed a rule that governs the petitioner's claim." Nevertheless, this Court must apply both prongs of the § 2254(d) inquiry. See Vieux v. Pepe, 184 F.3d 59, 63-4 (1st Cir. 1999) ("The case is not over . . . if the state court decision cannot be termed `contrary to' Court precedent. Instead, just as in cases where there is no specific rule on point, we must assess whether it is an `unreasonable application' of the Court's pronouncements.").
II. Materiality and Disclosure
A. United States Supreme Court Precedent
In Napue v. Illinois, 360 U.S. 264, 265 (1959), the Supreme Court held that the "failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment to the Constitution of the United States." This principle applies to testimony involving the credibility of witnesses. See id. at 269. A few years later, in Brady v. Maryland, 373 U.S. at 87, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (emphasis added). The Supreme Court subsequently held that "evidence affecting credibility falls within [the Brady] rule." Gialio v. United States, 405 U.S. at 154. The purpose of the Brady rule is "to ensure that a miscarriage of justice does not occur" and that the defendant receives a fair trial. United States v. Bagley, 473 U.S. at 675.
In United States v. Bagley, 473 U.S. at 682, the Supreme Court defined materiality in the Brady context. The Court stated that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court provided four clarifications regarding what constitutes "material" evidence in the Brady context. First, the Court stated "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 434. Second, Kyles stands for the proposition that
Bagley materiality . . . is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.
Id. at 434-35.
Third, Kyles established that "once a reviewing court applyingBagley has found constitutional error there is no need for further harmless-error review." Id. at 435. Fourth, Kyles emphasized that a court considering the merits of an allegedBrady violation must view the suppressed evidence collectively, not item by item. Id. at 436.
In addition to clarifying materiality in the Brady context,Kyles held that "the prosecutor remains responsible for gauging [the collective effect of suppressed evidence] regardless of any failure by the police to bring favorable evidence to the prosecutor's attention." Id. at 421.
B. Application
The Supreme Court of Rhode Island concluded that the prosecution did not violate Brady or Napue by not disclosing evidence to Mastracchio regarding the conditions of Gilbert's confinement. This Court does not adopt this position or address this issue because the issue of materiality disposes of Mastracchio's petition. Applying the aforementioned Supreme Court precedent, this Court agrees with the Supreme Court of Rhode Island that the undisclosed evidence withheld from Mastracchio and his attorney is not material. All of the evidence withheld from Mastracchio and his counsel, viewed collectively, not item-by-item, does not place the "whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. at 434-35. The Supreme Court of Rhode Island stated the following reasons for its confidence in the verdict: the facts set forth by Gilbert
Note that while the Supreme Court of Rhode Island had the benefit of Kyles, the Superior Court did not. Nevertheless, the Supreme Court of the United States did not announce new rules inKyles, but simply clarified certain guideposts for materiality under Bagley. See Hays v. Alabama, 85 F.3d 1492, 1498 (11th Cir. 1996) cert. denied 520 U.S. 1123 (1997) ("The Supreme Court . . . decided Kyles v. Whitley . . ., which discussed the `reasonable probability' standard of Brady. Without announcing new rules, the Court cited four guideposts for determining materiality.") Therefore, in 1994 Bagley constituted clearly established law by the Supreme Court of the United States.
accurately described the motive that [Mastracchio] and his juvenile accomplice Dionne, had for killing young Valente. They described in accurate exact minute detail the parts of Valente's body that had been savagely beaten, the fact that Valente was alive and making sounds when his body was tossed into the Narragansett Bay, and that young Valente, because of an earlier automobile accident injury, had had a plastic plate surgically implanted in his forehead. They also described the portion of the Jamestown Bridge from which Valente's body was tossed. If one bears in mind that Gilbert at the time of the Valente murder, was confined in a Florida prison, there is no conceivable way in which he could have learned of those minute, intimate, covert, and `for no other ears or eyes' crime-commission details unless he was actually present at the murder scene or had learned of them from the actual murderer. Although Gilbert was in Florida and not present at the murder scene, [Mastracchio] was, and for that single reason [Mastracchio] was able to relate to Gilbert, why, when, where, and how the murder took place. The very intimate, particularized nature of the murder details related by [Mastracchio] could only be known to the perpetrator, and those details actually needed no real corroboration because they were self-corroborating. However, the trial jury did have before it testimony and evidence corroborating those details from the State Medical Examiner, whose testimony established as true Gilbert's account of where young Valente had been beaten, Gilbert's testimony that Valente was alive when thrown from the Jamestown Bridge and Gilbert's testimony that Valente previously had had a plastic plate surgically implanted in his head following an automobile collision injury. The trial testimony from the Jamestown police concerning where Valente's body was found also served to corroborate Gilbert's testimony that Valente had been tossed from the Jamestown Bridge into the Narragansett Bay.
* * *
Despite knowing about all [of Gilbert's] criminal background and personal history, the trial jury nonetheless found Gilbert to be credible with regard to the testimony that he had given relating to what [Mastracchio] had admitted to him about the Valente murder. It is not reasonable to believe that if there had been added to that horrendous mix of criminal background and character evidence the fact that Gilbert's police custodians during the various trials in which he was being called upon to testify had permitted him short visits with his family, had taken him to eat in various restaurants, had taken him to several hotels where he could meet with his family or with prosecutors to discuss trial matters, or had permitted him to take skydiving lessons, the jury's findings or Gilbert's credibility would have in any appreciable way been altered.Mastracchio v. Moran, 698 A.2d at 712-14.
This Court concurs with the Supreme Court of Rhode Island's analysis. All of the undisclosed evidence regarding Gilbert's custodial confinement (i.e., family visits and vacations, custodial recreation, cash payments, gun possession, and use of controlled substances and alcoholic beverages), viewed collectively, does not create a "probability sufficient to undermine confidence in the outcome" of the case. It is simply not reasonable to believe, in light of Gilbert's entire testimony and the testimony of other witnesses, that the defense counsel would have changed the jury's determination of Gilbert's credibility if defense counsel brought out all of the evidence regarding Gilbert's custodial confinement. In short, the jury's verdict is worthy of confidence despite the omission of evidence regarding Gilbert's custodial confinement.
More importantly, this Court finds that under 28 U.S.C. § 2254(d) and O'Brien, petitioner has failed to establish that the Rhode Island Supreme Court's decision to vacate the Superior Court's decision and its order remanding petitioner to the ACI was "contrary to" the governing rules established in Bagley andKyles. Bagley and Kyles do not require an outcome contrary to that reached by the Supreme Court of Rhode Island, but one that is wholly consistent with the Rhode Island Supreme Court's decision. Similarly, petitioner did not demonstrate that the Rhode Island Supreme Court's decision reflected an "unreasonable application" of clearly established United States Supreme Court precedent. For example, the Rhode Island Supreme Court's analysis and application of Bagley and Kyles is not "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien v. Dubois, 145 F.3d at 25. On the contrary, as shown above, the Rhode Island Supreme Court fully supported its decision with facts in the record and with a sound application of those facts to the standards set forth by the United States Supreme Court. Consequently, Mastracchio has failed to meet his burden pursuant to 28 U.S.C. § 2254(d).
C. Plaintiff's Rebuttal
Mastracchio asserts three arguments in rebuttal. First, Mastracchio cites four cases from other circuits in which the courts found that the prosecutor had violated the petitioner's constitutional rights by not disclosing certain information. These four cases, however, are readily distinguishable from the case at bar. In United States v. Andrews, 824 F. Supp. 1273, 1276 (N.D. Ill. 1993) and United States v. Burnside, 824 F. Supp. 1215, 1244 (N.D. Ill. 1993), the prosecutor failed to inform the defense that the government's key witnesses stole each others witness' statements and maintained contact with each other, thereby enhancing the likelihood of collusion. In fact, the "prosecutors and government witnesses repeatedly asserted that there was no interaction, intermingling or opportunity for collusion among the . . . inmate witnesses" knowing that these witnesses had access to each other's grand jury statements.United States v. Andrews, 824 F. Supp. at 1284. In the case at bar, there is no evidence of collusion.
In United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996), the prosecution failed to disclose to the defense that a key witness committed perjury in a proceeding involving the same drug conspiracy as facing the petitioner. In ruling in favor of petitioner's request for a new trial, the Court reasoned that perjury is "unique in its detrimental effect on a witness' credibility" and therefore, other impeachment evidence would not negate its importance. Id. at 518. In Mastracchio's case, however, the defense knew about Gilbert's prior perjury and it came out at trial.
In United States v. Smith, 77 F.3d 511, 512 (D.C. Cir. 1996), the prosecution failed to disclose the dismissal of two felony cases in the D.C. Superior Court. In the context of the Smith case, the defense attorney could have used such information to conduct a "devastating cross-examination regarding his credibility." Id. at 513. As a result, the court found the undisclosed evidence material. See id. In the context of the case at bar, the undisclosed information regarding Gilbert's custodial confinement would do nothing to place the "whole case in such a different light as to undermine confidence in the verdict," including conducting additional cross-examination on Gilbert's credibility.
Second, Mastracchio claims that "it is inconceivable that defense counsel, in the instant case, in possession of the undisclosed evidence, could not have used it to severely (sic) cripple the credibility of the State's only witness linking Gerald Mastracchio to the crime." Memorandum in Support of Petition for Writ of Habeas Corpus by a Person in State Custody at 27 (July 20, 1998). This Court respectfully disagrees. It is utterly conceivable that the jury would believe Gilbert's consistent and detailed testimony regarding Mastracchio's involvement in Valente's murder even with the knowledge of Gilbert's custodial confinement, especially since they convicted Mastracchio knowing that Gilbert was a murderer, thief, liar, and perjurer.
Third, Mastracchio contends that "[i]f the jury knew the truth, it probably would not have believed [Gilbert]." Memorandum in Support of Petition for Writ of Habeas Corpus by a Person in State Custody at 30 (July 20, 1998). This Court again respectfully disagrees. Given Gilbert's impenetrable detail and knowledge about Mastracchio's involvement in Valente's murder, coupled with the jury's knowledge of Gilbert's criminal history and character, it is likely that if the jury knew about Gilbert's custodial confinement, it would have believed him anyway.
III. Ethical Concerns
Prosecutorial Misconduct
The Rhode Island Rules of Professional Conduct addresses the "special responsibilities of a prosecutor." Rule 3.8 states in part: "The prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. . . ." See also Model Rules of Professional Conduct Rule 3.8 (1999) (same language). The American Bar Association Standards for Criminal Justice state that "[a] prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused." ABA Standards for Criminal Justice, Disclosure of Evidence by the Prosecutor 3-3.11(a) (3d ed. 1993).
There is no evidence that the prosecution intentionally failed to disclose evidence regarding Gilbert's custodial confinement. While the prosecutor may not have known all of the evidence or information regarding Gilbert's conditions of confinement, the police certainly had such knowledge and the prosecutor had a duty to discover such information. See Kyles v. Whitley, 514 U.S. at 421; Rhode Island Rule of Professional Conduct 8.4(a) (1999) ("It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.") The prosecutor's failure to disclose information about Gilbert's custodial confinement comes exceedingly close to violating Rhode Island Rule of Professional Conduct 3.8 and the ABA Standards for Criminal Justice, Disclosure of Evidence by the Prosecutor 3-3.11(a) (3d ed. 1993). The prosecutor's failure to disclose flies in the face of the spirit of these ethical mandates. This Court does not look favorably upon the prosecutor's failure to investigate and disclose information about Gilbert's custodial conditions to the defense.
Nevertheless, this Court is asked to address the constitutional implications of the prosecutor's failure to disclose information about Gilbert's custodial confinement. Under the constitutional due process standards set forth above, the prosecutor's omission does not constitute a constitutional violation of Mastracchio's Fourteenth Amendment rights. See Kyles v. Whitley, 514 U.S. at 437 (noting that the constitutional due process standard requires less than the ABA Standards for Criminal Justice and the ABA Model Rules of Professional Responsibility).
IV. Supreme Court of Rhode Island's Standard of Review
State Law Issues
Mastracchio asks this Court to find that the Supreme Court of Rhode Island improperly reviewed the Superior Court's finding of facts under a de novo standard of review. Specifically, Mastracchio maintains that the Rhode Island Supreme Court "wrote as if on a clean slate, disregarding many findings of historical fact, the most obvious being those included in the Agreed Statement of Facts." Memorandum in Support of Petition for Writ of Habeas Corpus by a Person in State Custody at 25 (July 20, 1998). Unfortunately for the plaintiff, the standard of review that the Supreme Court of Rhode Island uses to review a Superior Court's decision is a matter of state law and beyond the scope of a petition for a writ of habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law. . . .")); Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue a writ on the basis of a perceived error of state law."). In Estelle v. McGuire, 502 U.S. at 67, the Supreme Court "reemphasize[d] that it is not the province of a federal habeas court to reexamine state court determinations of state-law questions," which is exactly what Mastracchio is asking this Court to do.
The Rhode Island Supreme Court adopted a de novo standard of review citing State v. Campbell, 691 A.2d 564, 569 (R.I. 1997) (concluding that "`independent review is . . . necessary if appellate courts are to maintain control of, and to clarify . . . legal principles.'") (quoting Ornelas v. United States, 517 U.S. 690, 697 (1996) (holding "that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo")).
Conclusion
For the aforementioned reasons, I recommend that the District Court deny Mastracchio's petition for a writ of habeas corpus. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. See Rule 32, Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the District Court and the right to appeal the District Court's decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).