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Lucien v. Spencer

United States Court of Appeals, First Circuit

September 15, 2017

JAMES LUCIEN, Petitioner, Appellant,
LUIS SPENCER, Respondent, Appellee.


          Susan Church, with whom Demissie & Church was on brief, for appellant.

          Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.


         In November 1995, a Massachusetts jury convicted James Lucien of first-degree murder, two counts of armed robbery, and one count of unlawful possession of a firearm. Lucien was sentenced to life in prison, whereupon he sought direct and collateral review in the Supreme Judicial Court of Massachusetts (SJC). When the majority of his state challenges were rebuffed, see Commonwealth v. Lucien (Lucien I), 801 N.E.2d 247, 251 (Mass. 2004), Lucien petitioned the federal district court for the District of Massachusetts for a writ of habeas corpus, arguing that the trial court improperly handled the admission of a plea agreement made by a government witness, that the district court's jury instructions omitted an element of the murder offense, and that trial counsel was constitutionally ineffective. The district court denied Lucien's petition. See Lucien v. Spencer (Lucien II), No. 07-11338-MLW, 2015 WL 5824726, at *35 (D. Mass. Sept. 30, 2015). Lucien now appeals. For the reasons that follow, we affirm.

         I. Background

         Lucien's conviction followed a five-day trial in which evidence was introduced to show that Lucien and a man named Jamal Butler agreed to rob Alfred Clarke and his brother Ryan Edwards, whom Lucien and Butler knew to be a drug dealer. The Commonwealth presented evidence that Butler arranged a drug deal through Clarke. The arrangement eventually led to Lucien riding in the backseat of Edwards's two-door sedan while Edwards drove and Clarke sat in the front passenger seat. Lucien drew a firearm and ordered Clarke to hand over his money, a pager, and a bracelet he was wearing. He then ordered Clarke out of the car. After the car pulled away and turned a corner, Edwards was shot in the lower-right torso. The bullet, apparently fired from a .25 caliber automatic weapon, killed him. A .25 caliber shell casing was later found in the vehicle, but the murder weapon was never found. Butler testified that when he reconvened with Lucien the following day, the men split the loot and Lucien admitted he had shot Edwards.

         The prosecution's principal theory of the case was that Lucien committed an armed robbery and killed Edwards in the process. In support of this theory, the prosecution presented the testimony of a medical examiner who opined that, given the angle of the bullet's entry into Edwards's body, the shot could have been fired from the backseat of his vehicle. Clarke testified that Lucien claimed to be interested in purchasing cocaine from Edwards but then drew a gun to commit a robbery once Edwards began driving. He testified that he handed over his money, pager, and bracelet as his brother pulled over; he exited as the car began to drive away; and he saw a flash within the vehicle and heard a gunshot. Butler, who pled guilty to unarmed robbery, testified that he and Lucien met before the robbery at Butler's girlfriend's home to forge a plan to rob Edwards in a staged drug deal; that Butler set up the deal because he knew Edwards; that Butler made first contact and arranged to meet Edwards and Clarke in Edwards's car in a parking lot; that Lucien and Butler drove to the parking lot together; that Butler watched Lucien get in the back of Edwards's and Clarke's car before it drove away; and that when Lucien came over the next day to split the spoils, he reported he shot Edwards "to make it look good."

         Lucien (through counsel) seized on the fact that Clarke also admitted that he, too, had a firearm on his person during the robbery. Lucien's defense theory was that Clarke fired the fatal bullet after he got out of the car (presumably trying to hit Lucien). Providing some support for this defense, one officer who responded to the scene testified to Edwards's dying declaration that he was shot by someone outside the car (rather than, as Clarke testified, by Lucien inside the car), and another officer testified to hearing two gunshots. There were also some inconsistencies in Clarke's and Butler's testimonies, and each had incentive to lie at Lucien's expense--Butler to secure a plea deal, and Clarke to shift blame for a shooting he himself arguably perpetrated. On the other hand, there was the shell casing found in the car, and the Commonwealth's ballistician testified that Edwards was likely shot from close range (although that testimony could not be confirmed because Edwards's clothes were lost at the hospital and no soot or powder was found on Edwards's body).

         The jury sided with the Commonwealth, and the state trial court sentenced Lucien to life in prison on the first-degree murder charge, a concurrent four-to-five-year term on the illegal firearm charge, and concurrent eighteen-to-twenty-year terms for the two armed robbery charges. He timely appealed, arguing, among other things, that the trial court's jury instructions were flawed because they did not "instruct the jury that they could not consider Butler's guilty plea as evidence against the defendant." Lucien I, 801 N.E.2d at 255. He also took issue with the felony-murder instructions, arguing that they did not comply with Massachusetts law because they allowed the jury to convict Lucien of murder even if Clarke fired the fatal shot. Id. at 256.

         In addition to his direct appeal, Lucien filed a motion for a new trial before the SJC pursuant to Massachusetts General Laws chapter 278, section 33E. The new-trial motion asserted that Lucien's trial counsel was ineffective for two reasons. First, he allegedly gave "faulty advice about the Commonwealth's ability to impeach [Lucien], if he testified, and that [his] waiver of his right to testify was thus not knowing and voluntary." Id. Second, trial counsel did not call two experts, a pathologist and a ballistician, both of whom were retained before trial. Lucien claimed those experts would have undermined the Commonwealth's evidence by opining that Edwards was likely shot from farther away than the backseat of his vehicle. Lucien also argued that one of his armed robbery convictions was duplicative of his felony-murder conviction, and that the SJC should exercise its discretionary power to relieve him from the verdict or grant him a new trial. See Mass. Gen. Laws ch. 278, § 33E. The SJC remitted the motion to the trial judge, the motion was denied, and Lucien appealed.[1]

         The SJC consolidated Lucien's direct and collateral appeals and then denied relief on all but Lucien's duplicity challenge, vacating his conviction for the armed robbery of Edwards because it was duplicative of the first-degree murder conviction. (Lucien was convicted on a felony-murder theory, so the armed robbery was an element of the murder offense.) See Lucien I, 801 N.E.2d at 251, 260. Lucien filed a second motion for a new trial a few months later in the trial court, reasserting his ineffective assistance claims concerning his right to testify and trial counsel's refusal to call the pathologist and the ballistician, and adding ineffective assistance claims based on trial counsel's alleged mishandling of a suppression motion and counsel's "fail[ure] to object to the lack of appropriate instructions to [the] jury on [the] limited purpose for which [a] co-defendant's guilty plea could be used." He also asserted that he received unconstitutionally substandard assistance of appellate counsel in failing to raise on appeal the ineffective assistance of trial counsel. The trial court denied the motion, and a single justice of the SJC denied leave to appeal. See Mass. Gen. Laws ch. 278, § 33E.

         A petition for a writ of habeas corpus under 28 U.S.C. § 2254 timely followed in the District of Massachusetts. The district court denied Lucien's petition, see Lucien II, 2017 WL 5824726, at *35, and this timely appeal ensued.

         II. Discussion

         We review a district court's denial of a petition for habeas corpus de novo. See Moore v. Dickhaut, 842 F.3d 97, 99 (1st Cir. 2016) (citing Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007)). Like the district court, however, we are required to afford significant deference to the state court's decision under most circumstances. See Scoggins v. Hall, 765 F.3d 53, 57 (1st Cir. 2014). Unless a state court "does not address the merits of a federal claim, " see Jenkins v. Bergeron, 824 F.3d 148, 152 (1st Cir. 2016) (quoting Zuluaga v. Spencer, 585 F.3d 27, 30 (1st Cir. 2009)), the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) permits us to grant a habeas petition in only two circumstances: (1) if the SJC's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1); or (2) the decision on the federal claim was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " id. § 2254(d)(2). The petitioner must also show that the state court's error had a "substantial and injurious effect" on the jury's verdict. See Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).

         Lucien advances four claims on appeal. We assess each of these challenges in turn.

         A. Butler's guilty plea

         Lucien's first argument concerns the entry of Butler's plea agreement into evidence, and the judge's instructions about the role it could play in the jury's verdict. As Butler's direct examination was drawing to a close, the trial court allowed the Commonwealth to read Butler's plea agreement into evidence, and to elicit Butler's comment on it. Lucien's counsel objected, saying, "there is case law that creates certain obligations with respect to agreements of this type. I think, you know, just to protect the record, I'm going to object to the agreement, all right?" Citing Commonwealt ...

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