APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]
The opinion of the court was delivered by: Lynch, Chief Judge.
Before Lynch, Chief Judge, Souter,*fn1 Associate Justice, and Stahl, Circuit Judge.
Louis Costa is serving a life sentence without possibility of parole for the first-degree murders of two men in 1986 in Boston's North End. One of the victims was shot sixteen times, the other seven, at close range. Three defendants were charged and the ballistics evidence indicated that three guns were used.
Costa was sixteen years old at the time, but after a hearing in juvenile court, he was transferred to Massachusetts Superior Court for adult criminal proceedings, based on separate findings that there was probable cause to believe he had committed the murders and that he was not amenable to rehabilitation in the juvenile justice system. Had he remained in juvenile court, he would have undergone rehabilitation within the juvenile system; once transferred to Superior Court, he faced life imprisonment if convicted.
Costa's first conviction was vacated in 1992 by the Massachusetts Supreme Judicial Court ("SJC"). He was tried a second time in 1994, convicted again, and sentenced to life imprisonment. Because he was convicted on an indictment of first-degree murder, he invoked the special procedure under Massachusetts General Laws ch. 278, § 33E, giving the SJC plenary review on appeal as to his convictions after each trial. After Costa's second trial, the SJC affirmed the juvenile court's transfer decision, his conviction, and his life sentence.
In 1999, Costa filed a motion for a new trial in Superior Court, asserting for the first time that his trial counsel at the second trial was ineffective in failing to attack the non-amenability finding, as was his appellate counsel in failing to raise the same issue on his second appeal. The Superior Court judge rejected the motion.
Costa then sought discretionary review in the SJC pursuant to § 33E, filing a petition with a Single Justice gatekeeper. On September 14, 2000, a Single Justice rejected Costa's § 33E petition for leave to appeal the denial of his motion. The Single Justice held, as a matter of state law, that the petition failed to present a "new and substantial question."
On October 30, 2000, Costa filed a petition for a writ of habeas corpus in federal district court making essentially the same two ineffective assistance of counsel claims along with other claims not before us. For reasons not entirely obvious from the record, it took ten years for the district court to hear and deny Costa's petition, which it did on December 2, 2010. Costa took a timely appeal.
We affirm the denial of federal habeas relief. Under our decisions in Mendes v. Brady, 656 F.3d 126 (1st Cir. 2011), cert. denied, No. 11-7674, 2012 WL 538490 (U.S. Feb. 21, 2012), and Yeboah-Sefah v. Ficco, 556 F.3d 53 (1st Cir. 2009), the Single Justice's denial of further review is an independent and adequate state ground. This bar to our review may only be lifted if Costa shows cause and prejudice. He has not, and so federal habeas review is barred.
Louis Costa was one of three defendants charged with first-degree murder in connection with the February 19, 1986 shooting deaths of Joseph Bottari and Frank Angelo Chiuchiolo in Boston's North End. Commonwealth v. Tanso, 583 N.E.2d 1247, 1249 (Mass. 1992). Because Costa was sixteen years old at the time of the murders, the initial proceedings took place in juvenile court. Pursuant to the statutory scheme then in effect, if the juvenile court found probable cause to believe that Costa had committed the murders, the court was required to make a separate "amenability" determination as to Costa's potential for rehabilitation within the juvenile justice system. Mass. Gen. Laws ch. 119, § 61 (1985) (repealed 1996). Finding both probable cause and non-amenability, the juvenile court transferred Costa to Superior Court to stand trial as an adult. Costa opposed the transfer on both grounds.
At the probable cause portion of Costa's transfer hearing, several witnesses testified, including two eyewitnesses to the murders: Boston attorney Joseph Schindler, who observed the murders from his apartment window in North Boston, and Richard Storella, who was himself a participant in the murders. Storella, who received immunity for his testimony, flatly placed Costa in both the planning and execution of the murders. Storella's account of the murders at the hearing diverged somewhat from what he had originally disclosed to investigative officers after the murders took place, and Costa's attorney at the transfer hearing closely cross-examined Storella on these inconsistencies. Based on the testimony from the two eyewitnesses, Schindler and Storella, as well as on ballistics evidence indicating that each victim had been shot with three different weapons, the court found probable cause to charge Costa with the two murders.
Having found probable cause, the court conducted an extensive amenability hearing, at which it expressly considered the required statutory factors: "(a) the seriousness of the alleged offense; (b) the child's family, school and social history, including his court and juvenile delinquency record, if any; (c) adequate protection of the public; (d) the nature of any past treatment efforts for the child; and (e) the likelihood of rehabilitation of the child." Mass. Gen. Laws ch. 119, § 61 (1985) (repealed 1996).
Two psychiatric experts for the Commonwealth, as well as Costa's own psychiatric expert, testified at the hearing. Based on their review of a variety of materials, including interviews with Costa's family and psychological examinations of Costa, the experts testified as to Costa's family life, school background, substance abuse, and psychiatric profile. After considering this testimony and the evidence introduced at the hearing, the court found that Costa had "admit[ted] to a history of aggressive behavior" and alcohol abuse, that he experienced no remorse, had nothing but "disregard for authority," and suffered from a "conduct disorder . . . characterized by a repetitive and persistent ...