Opinion
2012-07-5
COMMONWEALTH v. Bruno RAGUSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial. Ultimately, he seeks a reversal of his convictions because of the admission against him at trial of certificates of drug analysis without either the presence at trial of the analysts who performed the analyses and signed the certificates, or a prior opportunity to cross-examine the analysts unavailable for trial.
The Unites States Supreme Court decision holding that the confrontation clause of the Sixth Amendment to the United States Constitution does not permit admission of such certificates in these circumstances, Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) ( Melendez–Diaz I ), was decided on June 25, 2009. The defendant's direct appeal in this case was decided by this court on April 10, 2009. Commonwealth v. Ragusa, 74 Mass.App.Ct. 1104 (2009). That judgment essentially became final twenty-eight days later, when the period of time for seeking further appellate review before the Supreme Judicial Court had expired. Accord Gonzalez v. Thaler, 132 S.Ct. 641, 656 (2012) (judgment of State's intermediate appellate court became final for purposes of the time limitation for filing Federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 upon expiration of the time for seeking discretionary review before State's highest court). Cf. Commonwealth v. Boria, 460 Mass. 249, 250 (2011) (where further appellate review of an Appeals Court affirmance of a criminal conviction is sought before and denied by the Supreme Judicial Court, the conviction becomes final ninety days later when the period for seeking certiorari from the United States Supreme Court expires). In Commonwealth v. Melendez–Diaz, 460 Mass. 238 (2011) ( Melendez–Diaz II ), the Supreme Judicial Court concluded that the United States Supreme Court's Melendez–Diaz I decision announced a “new rule” not applicable to convictions that became final prior to its issuance. This suffices to dispose of the defendant's Melendez–Diaz I claim.
Courts have divided on the question whether Melendez–Diaz I announced a new rule. See, e.g., State v. Williams, No. COA09–1052 (N.C. Aug. 3, 2010) (holding that Melendez–Diaz I did not announce a new rule for retroactivity purposes). Our decision today is without prejudice to the defendant filing a new motion for a new trial should the United States Supreme Court determine that Melendez–Diaz I did not announce a new rule.
Because the defendant is not entitled to the benefit of Melendez–Diaz I, that is, because there was no error, his claim that the admission of the certificates of drug analysis created a substantial risk of a miscarriage of justice is also without merit.
The defendant also argues that it was ineffective assistance of counsel for appellate counsel to fail to raise the Melendez–Diaz I issue among the issues to be decided in his direct appeal. In this case, certiorari was granted in Melendez–Diaz I after the submission of the defendant's brief in his direct appeal before this court and before oral argument. In the same circumstances, the Supreme Judicial Court in Boria, supra at 252–253, held that the failure to raise a Sixth Amendment confrontation clause claim did not demonstrate ineffective assistance of counsel. To be sure, in the instant case, unlike Boria, the Commonwealth's brief was not filed until after the grant of certiorari in Melendez–Diaz I. In Boria briefing was completed prior to that grant of certiorari. See Boria, supra at 250. Thus, in this case, unlike Boria, the defendant could have alerted this court to the grant of certiorari in Melendez–Diaz I in a timely reply brief. We think, however, that the Supreme Judicial Court's decision in Boria, supra at 252–254, effectively holding that counsel was not ineffective for failing to raise the grant of certiorari in Melendez–Diaz I at oral argument before this court, is broad enough to require a conclusion that, likewise, failure to file a timely reply brief alerting the court of that grant of certiorari also does not amount to ineffective assistance of counsel under the well-known Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Order denying motion for new trial affirmed.
By the Court (GREEN, GRAINGER & RUBIN, JJ.).