-1- UNITED STATES DISTRICT COURT DISTRICT OF

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL D. SOUZA, )

)

Petitioner, ) CIVIL ACTION NO.

) 12-10705-DPW

)

v. )

)

ANTHONY MENDONSA and MARTHA )

COAKLEY, Attorney General, )

)

Respondents. )

MEMORANDUM AND ORDER

August 23, 2013

Michael Souza was convicted in Massachusetts Superior Court

of murder in the first degree--on theories of premeditation and

felony-murder--and of armed robbery, breaking and entering in the

daytime, unlawfully carrying a firearm, removing or defacing the

firearm’s serial or identification number, assault by means of a

dangerous weapon, larceny of a motor vehicle, and larceny over

$250. He is serving a life sentence. Having pursued various

avenues for relief in the state courts, Souza now petitions for a

writ of habeas corpus under 28 U.S.C. § 2254. The custodian

respondents have moved to dismiss.

I. BACKGROUND

A. Factual Background

In affirming Souza’s convictions on direct appeal, the

Massachusetts Supreme Judicial Court summarized the evidence

introduced by the Commonwealth at trial as follows:

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On the morning of February 1, 1994, the [petitioner] and two

others, Kenneth Padgett and Jamie Richards, committed two

burglaries while armed with handguns supplied by the

[petitioner]. While the coventurers fled from the second

burglary in a stolen van, the van collided with a city of

Worcester department of public works (DPW) truck and lodged

in a snowbank. A DPW crew was working nearby. The

[petitioner] and his coventurers then took the DPW truck at

gunpoint. When that vehicle got stuck in the snow after a

few hundred yards, they abandoned it and fled on foot.

Chief Mortell received word of the burglaries and the

incident involving the city crew shortly afterward.

Responding to a call for help from the Holden police, he saw

three men running across a road into a thickly wooded area

near the Kendall Reservoir. Leaving his car on the road, he

pursued the men into the woods on foot. As he passed a bush

behind which the [petitioner] hid, the defendant shot him.

Chief Mortell returned fire, and then collapsed. The

[petitioner] fired at him repeatedly, eleven times in all.

The fatal shot entered the victim’s left side, just under

his armpit, traveled through his lungs and heart, exited his

right side and lodged in the inside of his upper right arm.

A second shot hit the victim while he was bent over. The

[petitioner] threw his gun into the snow and fled. The

tracks in the snow suggested that the three coventurers

split up near the location of the victim’s body: Padgett and

Richards went in one direction, the [petitioner] went in

another. The police apprehended the [petitioner] shortly

after the shooting, and apprehended Padgett and Richards the

following day.

Com. v. Souza, 702 N.E.2d 1167, 1169-70 (Mass. 1998).

B. Procedural History

Petitioner was convicted of the offenses described above on

March 29, 1995. He was represented at trial by attorneys Michael

Hussey and Christopher Skinner. The theory of defense presented

at trial was that Padgett killed officer Mortell, and that the

evidence did not support a joint-venture theory of Souza’s guilt.

Souza, 702 N.E.2d at 1174 nn.19-20.

Souza appealed to the Massachusetts Supreme Judicial Court,

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This argument derives from Souza’s first motion for a new

trial, filed in January 1997 while appeal was pending. Justice

Lynch of the SJC transferred the motion to Superior Court. See

Mass. Gen. Laws ch. 278, § 33E. The Superior Court denied the

motion, Souza appealed, and review of the motion was consolidated

with his direct appeal.

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represented by new counsel Stephen Neyman. As a “capital case”

involving first-degree murder, the matter was subject to plenary

review by the SJC on appeal. See Mass. Gen. Laws ch. 278, § 33E.

Souza raised the following claims on appeal: (1) the trial judge

erred in denying Souza’s motion to suppress statements he made to

the police after his arrest on the day of the incident; (2) the

trial judge erred by giving an instruction on self-defense

despite trial counsel’s request that no such instruction be

given

; (3) the trial judge erred in refusing to instruct the jury

on involuntary manslaughter; (4) the trial judge erroneously

denied Souza’s motion for a required finding of not guilty on the

armed robbery charge; (5) trial counsel erred in failing to

request, and the judge erred in failing to give, instructions on

a variety of lesser included offenses; (6) trial counsel erred in

failing to object to the form of the verdict slip for the murder

indictment because it did not require the jury to specify whether

they found that the defendant had acted as a principal or as a

joint-venturer; (7) the armed robbery conviction was duplicative.

See Souza, 702 N.E.2d at 1169.

The SJC affirmed Souza’s convictions on December 11, 1998.

The SJC found that none of Souza’s arguments had merit.

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The motion itself does not appear to be in the materials

submitted by Souza or the respondents. However, there does not

appear to be any dispute between the parties about its grounds.

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Additionally, after conducting a plenary review of the record in

accordance with § 33E, the court concluded there was “no

substantial likelihood of miscarriage of justice” that would

otherwise lead the court to upset Souza’s convictions. Souza,

702 N.E.2d at 1178.

On August 31, 1999, Souza, acting pro se, filed a second

motion for a new trial in Superior Court, raising claims of

ineffective assistance of trial and appellate counsel.

The

Superior Court denied the motion on grounds of waiver, finding

that Souza was raising in the motion issues which could have been

raised in his earlier appeal. In an amended application for

appeal, Souza specifically faulted trial counsel for failing to

pursue a theory of self-defense and for failing to understand the

felony-murder and joint-venturer theories of guilt; he also

faulted appellate counsel for failing to raise these issues on

direct appeal. On April 13, 2005, however, with permission from

the SJC, Souza withdrew his motion for a new trial without

prejudice.

There then followed a cascade of theories for attacking the

conviction. Souza filed a third, fourth, and fifth motion for a

new trial, all of which were amended at least once. The Superior

Court denied all post-conviction relief on November 24, 2010.

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Com. v. Souza, No. 1994-0234, Memorandum of Decision and Order

(Mass. Super. Nov. 24, 2010). On February 11, 2011, Souza sought

leave to appeal.

As relevant here, Souza’s application for appeal raised the

following claims for relief. Souza first argued he was denied

effective assistance of trial counsel due to a conflict of

interest of attorney Hussey. On March 16, 1994, shortly after he

had been appointed counsel for Souza, Hussey was arrested for

speeding and operating a vehicle under the influence of alcohol,

and was subject to the same law enforcement and prosecutorial

authority as his client. Souza argued that the conflict

prevented Hussey from engaging in effective plea negotiations

(because Hussey sought to avoid questioning about his own

investigation), and led to a less-than-vigorous cross-examination

of officers who testified at Souza’s suppression hearing. Souza

initially raised this issue in his fifth motion for a new trial,

and it was the only issue given extended treatment in the

Superior Court’s November 24, 2010 denial of post-conviction

relief. The court concluded that Hussey should have disclosed

the potential conflict to his client. Nevertheless, the court

found no “actual conflict”--which automatically would have

required a new trial--because Hussey was never investigated for

or charged with a criminal violation and was thus free from fear

of retaliation by the prosecution. Additionally, co-counsel

Skinner conducted the cross-examination of the only officer

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involved in Hussey’s arrest who also testified at Souza’s

suppression hearing. Finally, the court could find no prejudice

stemming from any potential conflict of interest.

The rest of Souza’s arguments related to a claim for

ineffective assistance of appellate counsel Neyman. Souza

contended that his defense strategy had been misguided and that

his counsel should have pursued a self-defense theory. Souza

thus faulted Neyman for failing to raise on appeal: trial counsel

Hussey’s failure to share with co-counsel Skinner notes from an

early interview with Souza in which Souza indicated he may have

acted in self-defense; trial counsel’s failure to obtain certain

crime scene photographs and to investigate self-defense claims;

trial counsel’s failure to allow petitioner to testify at trial

in his own defense as to self-defense; trial counsel’s failure to

request a self-defense instruction; trial counsel’s act of

undermining a self-defense theory by requesting a voluntary

manslaughter instruction; and trial counsel’s complete disavowal

of self-defense to the jury. Souza also faulted Neyman for

failing to raise trial counsel’s alleged failure to realize the

implications of felony-murder and joint-venture theories of

murder, and trial counsel’s failure to object to errors in jury

instructions regarding withdrawal from and abandonment of a

joint-venture, which impermissibly shifted the burden of proof to

the defendant. Ostensibly independent of any errors by trial

counsel, Souza also faulted appellate counsel Neyman for failing

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to pursue further trial counsel’s objection to portions of jury

instructions on voluntary manslaughter deemed inadequate by Com.

v. Acevedo, 427 Mass. 714, 695 N.E.2d 1065 (1998), or to raise

errors in the trial court’s self-defense instruction that

impermissibly shifted the burden of proof. Finally, Souza argued

that he was denied a full and fair hearing regarding his

ineffective assistance of counsel claims.

On December 29, 2011, Justice Cordy denied Souza’s

application for appeal. Under Mass. Gen. Laws. ch. 278, § 33E,

Souza was not entitled to appeal unless his appeal was “allowed

by a single justice of the supreme judicial court on the ground

that it presents a new and substantial question which ought to be

determined by the full court.” Justice Cordy, acting as § 33E

gatekeeper judge, stated that he had “reviewed the claims

asserted by the defendant and [found] them to be either not new,

not substantial, or both.”

Souza petitioned in this court for a writ of habeas corpus

on April 12, 2012. The grounds for relief are the same as those

raised in his February 11, 2011 application for leave to appeal

to the SJC, involving the alleged denial of his Sixth Amendment

right to effective assistance of counsel both at trial and on

direct appeal.

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II. ANALYSIS

A. Procedural Default

Federal courts reviewing the lawfulness of a habeas

petitioner’s custody will not review questions of federal law

decided by a state court “if the decision of that court rests on

a state law ground that is independent of the federal question

and adequate to support the judgment.” Coleman v. Thompson, 501

U.S. 722, 729 (1991). Accordingly, where

a state prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is

barred unless the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice.

Id. at 750.

The First Circuit has explicitly held that a “Single

Justice’s finding [under § 33E] that a petitioner has not raised

a ‘new-and-substantial’ question for further review constitutes a

finding of procedural default under state law.” Costa v. Hall,

673 F.3d 16, 23 (1st Cir. 2012); accord Mendes v. Brady, 656 F.3d

126 (1st Cir. 2011).

Justice Cordy, acting as the § 33E gatekeeper judge in

Souza’s application to appeal from the denial of state post-

conviction relief, found the ineffective assistance claims now

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forming the basis for Souza’s habeas petition “not new, not

substantial, or both.” That determination constitutes an

independent and adequate state ground precluding federal habeas

review.

Souza argues that his claim for ineffective assistance of

appellate counsel was necessarily “new” because it could not have

been raised until after direct appeal. However, the SJC has

rejected the argument that an ineffective assistance of appellate

counsel claim is categorically “new,” and the First Circuit has

endorsed that principle in the context of finding procedural

default of ineffective assistance of appellate counsel claims on

federal habeas review. An ineffective assistance of appellate

counsel claim is not new, for example, where it “merely

reiterate[s] the same substantive claim asserted against trial

counsel.” Costa, 673 F.3d at 24 n.4. If this were not the case,

“every claim that was available to the defendant but had been

omitted from the trial and direct appeal could be recast in terms

of ineffective assistance of counsel,” thereby making it “new”

and “eligible for collateral appellate review.” Com. v. Gunter,

945 N.E.2d 386, 394 (Mass. 2011). As a general matter,

collateral appellate review by the SJC in capital cases may not

be used to “to entertain arguments and theories that could have

been, but were not, previously raised by the defendant,” where

neither the law nor facts have changed and the case has already

be subject to plenary review by the SJC. Id. at 394-95.

It appears, then, that the claims in Souza’s application for

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appeal (that now also form the basis for his habeas petition)

should not be considered “new.” Souza’s claims for ineffective

assistance of appellate counsel were almost entirely derivative

of the alleged failings of trial counsel. Under § 33E

proceedings, such failings of trial counsel could have been

raised on direct appeal, see Costa, 673 F.3d at 23 n.3; Mendes,

656 F.3d at 130, and Souza could not avoid the “new-and-

substantial” bar merely by recasting those same arguments as

ineffective assistance of appellate counsel. Souza’s about-face

on self-defense was also, as the SJC warned in Gunter, an

improper attempt to use collateral appellate review to raise a

different but previously-available defense theory. The remaining

claims involved challenges to jury instructions (again in the

guise of ineffective assistance of appellate counsel) that were

available on direct appeal and surely were the subject of the

SJC’s plenary review. The SJC, for example, specifically

scrutinized on direct appeal the self-defense instruction given

by the trial court and found that it did not improperly shift the

burden of proof. Souza, 70 N.E.2d at 1174. Additionally,

although the SJC did not address the specific language that Souza

now finds objectionable in the trial court’s voluntary

manslaughter instructions, the fact that the SJC took note of the

instruction indicates that it did not escape the SJC’s plenary

review. Id. at 1173 & n.5. Thus, Souza’s ineffective assistance

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I must note my reservations about a rule that an issue

found not to be substantial would without more be found to be the

subject of procedural default. The First Circuit used broad and

categorical language in Costa, but presented with a case cleanly

presenting the issue, the First Circuit might be reluctant to

find a federal claim procedurally defaulted where the § 33E

gatekeeper justice in fact found the claim “new” but “not

substantial.”

The principles of comity underlying procedural default do

not support barring habeas review based on a single justice’s

finding that a claim is “new” but “not substantial.” When a

habeas petitioner has “failed to meet the State’s procedural

requirements for presenting his federal claims,” he “has deprived

the state courts of an opportunity to address those claims in the

first instance.” Coleman v. Thompson, 501 U.S. 722, 732 (1991).

Procedural default is thus designed, in a manner akin to the

administrative law doctrine of exhaustion, to protect the

integrity of the underlying state rule and to prevent the

“‘unseem[liness]’ of a federal district court’s overturning a

state-court conviction without the state courts having had an

opportunity to correct the constitutional violation in the first

instance.” Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (citing

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). When a single

justice of the SJC denies full-court review of a federal claim

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of appellate counsel claim was merely a recasting of the

underlying substantive arguments that were available on direct

appeal and were the subject of the SJC’s plenary review. They

were not “new.”

Under governing First Circuit law, that Justice Cordy did

not specify which of Souza’s claims were not new and which were

not substantial is immaterial. The First Circuit in Costa

explained that a § 33E gatekeeper justice’s finding either that a

claim is “not new” or that justice’s finding that a claim is “not

substantial” would separately “constitute[] an independent and

adequate state ground in and of itself and acts to bar federal

review.” Costa, 673 F.3d at 24.

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because the claim is “not substantial” but otherwise properly

presented, the petitioner has not deprived the state court of the

opportunity to correct the alleged constitutional violation.

Rather, the state has merely created a procedure whereby a single

justice, rather than the entire court, may determine that there

was no constitutional violation. A gatekeeper justice’s

determination that a claim is “new” but “not substantial” would

not seem then to be anything other than a summary decision on the

merits, and a claim regarding it should remain part of a federal

habeas court’s general review of the lawfulness of detention.

The awkwardness of this inquiry, however, reinforces my

reservation about finding procedural default solely based on the

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Souza consequently cannot escape the conclusion that his federal

claims were procedurally defaulted and are not susceptible of

federal habeas review.

B. Excusing Procedural Default

The question, then, is whether Souza can establish “cause for

and prejudice from the default,” Costa, 673 F.3d at 25, or

“demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice,” Coleman, 501 U.S. at 750.

Cause

To show cause for default based on a finding that the claim

is “not new,” petitioner must explain his failure to “present all

his claims of error at the earliest possible time.” Costa, 673

F.3d at 23 (quoting Gunter, 945 N.E.2d at 393). What it means to

show cause for default based on a finding that the claim is “not

substantial” is less clear, but might involve petitioner

explaining why he failed to present a claim more substantially in

a timely fashion.

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gatekeeper judge finding a claim “not substantial.” See supra

note 3. In some cases, “cause” for the insubstantiality of a

claim may resemble the common explanations for failure to present

claims sooner--for example, previously unavailable facts were

necessary to make the claim substantial, or ineffective

assistance of counsel prevented the presentation of a claim that

the gatekeeper would recognize as substantial. But in other

cases, the sole “cause” for lack of substantiality will be an

argument that, despite the gatekeeper justice’s view, the claim

is in fact substantial. This represents disagreement with the

gatekeeper justice as to his summary decision on the merits of

the claim.

Even if there were procedural default in some technical

sense based on a gatekeeper justice finding a claim “not

substantial,” it seems to me new development of a non-frivolous

dispute as to the merits of the claim should constitute adequate

“cause” for default. Petitioner would then, of course, still

need to show prejudice. The petitioner here has not done so.

See infra Part II.B.2. If a claim determined to be “not

substantial” in state court gatekeeper review is procedurally

defaulted, the prejudice inquiry might be seen as a proxy (albeit

under a more demanding standard) for federal merits review of the

type conducted outside the procedural default setting. Of course,

in all events, the scope of federal habeas will be limited as

provided by § 2254(d). Harrington v. Richter, 131 S. Ct. 770, 784

(2011) (just as where state court issues opinion explaining denial

of claim, habeas court may not grant relief on claim summarily

dismissed unless petitioner can show the adjudication resulted

from an unreasonable legal or factual conclusion).

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Typically, establishing cause for procedural default turns on

a showing of “some objective factor external to defense” that

impeded efforts to comply with the state procedural rule. Murray

v. Carrier, 477 U.S. 478, 488 (1986). For example, “a showing

that the factual or legal basis for a claim was not reasonably

available” at the time the claim should have been presented may

constitute cause. Id. at 488. So too may “interference by

officials” or other obstacles making compliance “impracticable.”

Id.

Claims of ineffective assistance of counsel are not exempt

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from the general rule requiring cause and prejudice to overcome

procedural default. Costa, 673 F.3d at 25. Ineffective

assistance, however, may excuse the procedural default of another

habeas claim. Carrier, 477 U.S. at 488. That said, “a

procedurally defaulted ineffective-assistance-of-counsel claim can

serve as cause to excuse the procedural default of another habeas

claim only if the habeas petitioner can satisfy the ‘cause and

prejudice’ standard with respect to the ineffective-assistance

claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000).

Souza has not demonstrated “cause” for default of his

ineffective assistance claims here. The facts pertaining to

Hussey’s conflict of interest--based on his encounter with the

police in 1994--were “known or knowable” by the time of Souza’s

direct appeal. Costa, 673 F.3d at 25. The same is true of the

other alleged failings of trial counsel (including the failure to

pursue and present a theory of self-defense) and Souza’s various

objections to the jury instructions. Although Souza has recast

these claims as ineffective assistance of appellate counsel in an

effort to avoid procedural default, all of these claims “were

reasonably available at trial and on direct appeal.” Id.

Souza also seeks to use ineffective assistance of appellate

counsel as cause for default of his claims regarding the failings

of trial counsel. Souza, however, cannot use ineffective

assistance of appellate counsel for this purpose because even that

claim has been defaulted. Edwards, 529 U.S. at 450-51. And, in

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any event, Souza has not shown that the failure to raise his

claims on direct appeal was anything more than a failure “to

recognize the factual or legal basis” for the underlying claims,

which does not itself “constitute cause for a procedural default.”

Costa, 673 F.3d at 25 (quoting Gunter v. Maloney, 291 F.3d 74, 83

(1st Cir. 2002)).

2. Prejudice

Souza has also failed to show prejudice. To establish

prejudice, Souza must show not merely that the errors alleged in

his defaulted claims “created a possibility of prejudice, but that

they worked to his actual and substantial disadvantage, infecting

his entire trial with error of constitutional dimensions.”

Carrier, 477 U.S. at 494. An ineffective assistance of counsel

claim, of course, also includes an analysis of prejudice. In

order to prevail on a claim of ineffective assistance, defendant

must show “that counsel’s representation fell below an objective

standard of reasonableness and that there exists a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. . . . In other

words, a defendant must demonstrate both seriously-deficient

performance on the part of his counsel and prejudice resulting

therefrom.” United States v. De La Cruz, 514 F.3d 121, 140 (1st

Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 688

(1984)).

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The simplest explanation for lack of prejudice here is to

observe that even if I reached the merits of the ineffective

assistance claims, I would not find a deprivation of Souza’s

constitutional rights. Trial and appellate counsel’s decision not

to pursue a self-defense theory was the sort of tactical decision

that is not the stuff of an ineffective assistance claim. United

States v. Ortiz Oliveras, 717 F.2d 1, 3 (1st Cir. 1983). The mere

lack of success on the chosen theory of defense also does not

demonstrate that counsel failed to comprehend felony-murder and

joint-venture theories of murder. And Souza has not established

that counsel’s failure to raise various objections to the jury

instructions was the result of anything other than a realistic

assessment of the prospects for success on those objections (which

were, indeed, summarily rejected by the reviewing courts once

belatedly raised by Souza).

3. Actual Innocence

Finally, Souza may escape procedural default if declining to

consider his claims “will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750. This “actual innocence”

gateway is reserved for a “narrow class of cases.” Schlup v.

Delo, 513 U.S. 298, 314-15 (1995). The SJC, in conducting its

plenary review, concisely summarized why there was no likelihood

of miscarriage of justice in this case: “to escape arrest, the

defendant ambushed a pursuer whom he reasonably must have known

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was a law enforcement officer. Had the defendant surrendered, as

he readily could have, the homicide of the officer would in all

likelihood have been avoided.” Souza, 702 N.E.2d at 1178.

Despite years upon years of litigation, there is little more to

the case than those few simple but tragic observations, and there

is thus no risk of a fundamental miscarriage of justice in

declining to excuse the default of Souza’s claims for purposes of

federal habeas review.

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III. CONCLUSION

For the reasons set forth more fully above, respondents’

motion to dismiss is GRANTED, and the petition for writ of habeas

corpus is DENIED.

/s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

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