Opinion
CIVIL ACTION NO. 99-11561-DPW
June 4, 2003.
MEMORANDUM AND ORDER
Petitioner Wilfred H. Evicci seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his Massachusetts state court convictions for acts of sexual assault. He is serving a sentence of life imprisonment. On remand from the Court of Appeals, the petitioner raises two separate types of claim under the Sixth Amendment: (1) violations of the Confrontation Clause, arising from limitations on cross examination designed to show the victim was a prostitute who used drugs and (2) ineffective assistance of counsel, arising from the failure adequately to present the defense theory that the sexual encounter did not involve rape and was, in any event, consensual.
I. Background
Evicci was convicted in December 1996 of aggravated rape, kidnaping, and assault and battery. During his trial, the Commonwealth presented evidence showing that he had accosted the victim in the early morning hours of September 15, 1995, and forced her into his van where he performed oral sex on her, engaged in instances of vaginal penetration with his penis, and ultimately thrust his penis into her mouth. The victim testified that as she pulled her mouth away, he ejaculated onto the seat of the van.
Shortly thereafter, she escaped from the van, shouting for help and claiming that she had been raped. Two residents of the condominium complex in whose parking lot the van was parked brought the victim, who was only partially dressed, to their apartment. While the victim was escaping, Evicci told a private security guard who approached the scene that the victim was a prostitute and requested handling the situation without the police.
Police officers, however, arrived on the scene, questioned the victim who identified Evicci as the assailant, and brought her to the hospital where medical personnel examined her. Their examination revealed bruises and cuts around her mouth, neck, and forearms including a puncture wound to her lip. A cervical exam was performed to collect evidence for a rape kit. A crime lab investigator collected sperm cells from the van as well as blood and seminal fluid from the victim's clothing.
Defense counsel suggested in his opening that the evidence would simply show "there was a scuffle between Mr. Evicci and [the victim] outside the van after they had consensually engaged in sex because Mr. Evicci didn't give her enough money." The victim, defense counsel suggested, having decided "she was essentially being taken advantage of and not being paid what she should have been paid, . . . reacted and started screaming and yelling at him. And the next reaction was to scream rape." In his closing, arguing that the victim "is not a naive person as the Commonwealth stated to you," defense counsel focused on alleged inconsistencies in the victim's several recountings of the incident. Moreover, he contended, "[t]he physical evidence does not match up with what she says."
The Massachusetts Appeals Court affirmed Evicci's conviction on February 2, 1999 in an unpublished opinion. Commonwealth v. Evicci, 46 Mass. App. Ct. 1114 (1999) (table). Further appellate review was denied by the Supreme Judicial Court on April 27, 1999, Commonwealth v. Evicci, 429 Mass. 1105 (1999) (table).
Evicci has since filed a number of state post-conviction motions, all of which were denied by the Superior Court. His pro se appeal from denial of three of the post-conviction motions was rejected by the Massachusetts Appeals Court in an unpublished opinion issued June 7, 2001 after the instant habeas corpus petition was filed in this court. Commonwealth v. Evicci, 51 Mass. App. Ct. 1113 (2001) (table). A second pro se post-conviction challenge was rejected by the Appeals Court in an unpublished opinion dated January 23, 2002. 53 Mass. App. Ct. 1113 (2002). It does not appear that applications for further appellate review by the SJC were perfected with respect to either of these pro se post-conviction challenges.
Evicci filed this habeas corpus petition on July 12, 1999. On March 20, 2000, I dismissed the petition for failure fully to exhaust state court remedies regarding any federal dimension to his claims. On appeal of that ruling, the First Circuit issued a per curiam opinion finding three of the four asserted grounds to have been waived and remanding for further proceedings the fourth ground, which it found to have been exhausted at least in some form concerning Sixth Amendment violations. Evicci v. Comm'r of Corrections, 226 F.3d 26 (1st Cir. 2000). In remanding, the Court noted that the petitioner "has not fully fleshed out his claims." Id. at 27. The Court, however, recognized a Sixth Amendment ground in two parts: one concerning the Confrontation Clause and the other concerning ineffectiveness of counsel. The First Circuit observed that it
Strictly speaking, the habeas corpus petition filed in this court by petitioner expressly raised only that part of the Sixth Amendment claim relating to the Confrontation Clause. The petition did not directly assert that part of the Sixth Amendment claim relating to ineffectiveness as identified by the Court of Appeals. However, the petition arguably incorporated an ineffectiveness claim, by reference, with its request:
Please see enclosed brief by Attorney James E. Methe to the Appeals Court for further appellate review dated March 10, 1999. Also I had complained to the trial Judge Judge McHugh before trial with regards for [incompetence] of counsel please there was exculpatory evidence that should have been brought to the juries jury trials attention in relation to fact as an event.
Although not expressly stated in the per curiam opinion, it appears the First Circuit undertook to assimilate the petitioner's arguments in support of his application for further appellate review into the instant bare bones petition for federal habeas corpus.
would not hesitate to deny [petitioner a right to appeal] if we were sure that the applicant had no reasonable basis for claiming that he had been denied a constitutional right. However, in this instance that branch of his claim based on the alleged limitations on counsel's opportunity to explore drug use might or might not have substance but, so far as it is explained, it is not frivolous on its face. If the inadequate assistance claim stood alone, we might say that the applicant failed to provide us enough information to make even a colorable showing, but, out of an abundance of caution, we think the district court ought to address both claims since the matter must go back in any event.
Id. at 28.
For proceedings on remand, I appointed Professor David Rossman of Boston University Law School to represent the petitioner. The parties then briefed both the Confrontation Clause and the ineffectiveness claims on the merits. The respondent did not on remand accept the invitation of the Court of Appeals, id., to raise further procedural objections to petitioner's claims.
II. Confrontation Clause
I find petitioner raises two independent, fully exhausted claims under the Sixth Amendment's Confrontation Clause. The first pertains to the judge's rulings barring the defense from inquiring about the character of the area where the victim encountered the petitioner, particularly as it relates to the prevalence of prostitution. The second claim challenges limitations imposed on the defense's ability to ask about the victim's drug use. Both claims were rejected by the state courts on direct appeal. I find no basis to disturb those determinations.
In its per curiam opinion directing remand, the First Circuit did not reference the limitation on inquiry regarding the character of the area for prostitution as being open for consideration. In an abundance of caution, I will, however, address that claim because it is as ripe for habeas corpus review as the drug use claim the First Circuit did reference and was included in the petitioner's application for further appellate review. See supra Note 1.
A. Standard of Review
Congress altered the standard of federal habeas corpus review of state court decisions in 1996 when it passed the Antiterrorism and Effective Death Penalty Act (AEDPA). Williams v. Taylor, 529 U.S. 362, 404 (2000). AEDPA restricts the district court's power to grant the writ of habeas corpus with respect to claims previously adjudicated by the state courts. Section 2254(d)(1) provides that the writ can be granted only if one of two conditions exists.
An application for writ of habeas corpus . . . shall not be granted with respect to any claim . . . unless the adjudication of the claim 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.28 U.S.C. § 2254(d)(1).
Accordingly, in Williams, the Supreme Court identified two distinct questions to determine whether a writ of habeas corpus is warranted under 28 U.S.C. § 2254(d)(1). See Williams, 529 U.S. at 412-13; see also McCambridge v. Hall, 303 F.3d 24, 35-36 (1st Cir. 2002).
The first asks whether the decision was "contrary to" established federal law, i.e., whether the law applied was "substantially different from the relevant precedent of [the Supreme] Court." Williams, 529 U.S. at 405. This prong is limited to situations in which the state court applied a rule that is contrary to the governing law set forth in the cases or where the state court faced facts that were materially indistinguishable from a decision of the Supreme Court but came to a different result. Id. at 405-06.
The second asks whether "the state court identifie[d] the correct governing legal principle from this Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. This may occur
`if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,' or `if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'
Kibbe v. DuBois, 269 F.3d 26, 36 (1st Cir. 2001) (quoting Williams, 529 U.S. at 408). In defining "unreasonable application," the Court indicated it was choosing a middle path by rejecting (1) as excessively deferential a subjective test asking whether there exists a "reasonable jurist" who would decide the case as the state court did and (2) as overly strict a test asking whether the underlying application of federal law was objectively correct. Williams, 529 U.S. at 409-11. Instead, the federal habeas court must determine whether the application by the state court was an "objectively reasonable" application of clearly established federal law. Id. at 409. The First Circuit has interpreted this standard to mean that "`if it is a close question whether the state decision is in error, then the state decision cannot be an unreasonable application.'" L'Abbe v. DiPaolo, 311 F.3d 93, 98 (1st Cir. 2002) (quoting McCambridge, 303 F.3d at 36). While it is still the sole domain of the federal courts to say what the law is, 28 U.S.C. § 2254(d)(1) requires deference to the state court's application of that law to a set of facts. Cf. Price v. Vincent, 123 S.Ct. 1848, 1855 (2003) (even if the federal courts — including the Supreme Court — were to agree upon a different conclusion, a contrary state court conclusion must be upheld so long as "it was at least reasonable for the state court to [so] conclude.")
In this connection, the First Circuit has held that, while the AEDPA "requires that the relevant legal rule be clearly established in a Supreme Court holding, rather than in dictum or in holdings of lower federal courts," lower federal court decisions are not "wholly irrelevant to the reasonableness determination":
To the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue. Reference to such cases may be especially helpful when the governing Supreme Court precedent articulates a broad principle that applies to a wide variety of factual patterns.
Ouber v. Guarino, 293 F.3d 19, 26 (1st Cir. 2002) (citations omitted).
B. Merits
1. Contrary to Established Law
In analyzing petitioner's Confrontation Clause claims on direct appeal, the Massachusetts Appeals Court applied the following legal rule, as announced by the SJC in Commonwealth v. Tanso, 411 Mass. 640, 650 (1992) (quoting Pointer v. Texas, 380 U.S. 400, 404-05 (1965)):
The decisions of [the United States Supreme Court] and other courts throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. . . . There are few subjects, perhaps, upon which [the Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of trial which is this country's constitutional goal.
Commonwealth v. Evicci, 46 Mass. App. Ct. 1114, slip op. at 2-3 (Feb. 22, 1999). The Appeals Court went on to observe that "the right of confrontation is not absolute," and that "the determination as to the proper scope of cross-examination rests in the discretion of the trial judge, and the burden of showing abuse of discretion and resulting prejudice is on the defendant." Id. at 3 (citing Commonwealth v. O'Connor, 407 Mass. 663, 672 (1990)). Finally, the court noted that "[o]ne factor in the determination is whether the judge has totally foreclosed the defendant's attempt to cross-examine witnesses."
The Appeals Court's formulation of the legal rule here is not inconsistent with the federal standard governing Confrontation Clause claims. The Sixth Amendment right to confrontation, while a fundamental right, is not absolute, and is subject to limitations to ensure the reliability of evidence and promote other public policy ends. Maryland v. Craig, 497 U.S. 836, 847 (1990). "[A] trial court may . . . impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as `harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant.'" Olden v. Kentucky, 488 U.S. 227, 232 (1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Similarly, "a defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998).
2. Unreasonable Application of Law
a. Prostitution — The trial court ruled that the character of the neighborhood was not relevant without first laying a foundation that the defendant believed that the victim was a prostitute who was going to have consensual sex with him. The Appeals Court rejected petitioner's claim that he was unconstitutionally prevented from presenting evidence regarding the character of the neighborhood, finding no abuse of discretion. Commonwealth v. Evicci, 46 Mass. App. Ct. 1114, slip op. at 3-5 (Feb. 22, 1999). The Appeals Court noted petitioner's substantial opportunity to present his theory that the victim was a prostitute and that their sexual encounter had been consensual, citing six different portions of testimony from the transcript that support petitioner's theory. Id. Moreover, the court recounted the trial judge's skepticism about the relevance of the neighborhood's reputation for prostitution when the victim lived in the area. Id. at 4.
Petitioner argues that evidence regarding the character of the neighborhood is essentially different from the other testimony presented. He contends that whereas the admitted testimony might establish the fact that petitioner said and believed at the time that the victim was a prostitute, the court prevented him from introducing evidence that might lend credence to his claim that the victim was actively engaged in prostitution at the time. He cites Illinois v. Wardlow, 528 U.S. 119, 124 (2000), a Terry stop case, for the proposition that the character of a neighborhood is relevant to whether one is engaged in criminal activity.
I cannot find that the Appeals Court or the state trial judge unreasonably applied Confrontation Clause law in the circumstances presented. Notwithstanding petitioner's distinction between objective and subjective evidence that the victim was a prostitute, the underlying relevance of the evidence goes to petitioner's state of mind as to consent. While the neighborhood's reputation for prostitution may lend some objective support to petitioner's subjective belief, the Appeals Court was correct that the jury heard evidence concerning petitioner's belief that she was a prostitute.
b. Drug Use — The Appeals Court denied petitioner's second Confrontation Clause claim with its determination that the trial court's decision to limit defense counsel to questions about drug use in the 24 hours preceding the alleged rape was reasonable. 46 Mass. App. Ct. 1114, slip op. at 5-7 (Feb. 22, 1999). The Appeals Court affirmed the trial court's ruling that the issue of drug addiction and drug use was not relevant to whether the victim was a prostitute or engaged in prostitution on the night in question. The issue of drugs was relevant only to the victim's ability to perceive and recall the underlying events, which could be ascertained by examination with respect to drug use in the previous 24 hours.
I find the appellate court's rulings to be a reasonable application of existing law. It is well established that "[a] witness' use of drugs may not be used to attack [her] general credibility, but only [her] ability to perceive the underlying events and testify lucidly at the trial." Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987). Furthermore, I find compelling the trial judge's ruling that drug use, while perhaps more common among prostitutes than non-prostitutes, is not sufficiently indicative on its own that someone is a prostitute to overcome the highly prejudicial nature of the evidence. See United States v. Sellers, 906 F.2d 597, 602-03 (11th Cir. 1990). Therefore, evidence that the victim was a drug addict, absent a showing that her perception or memory of events on the night in question was impaired, was not relevant. Evidence regarding the victim's drug use is only relevant to her ability to perceive the underlying events on the night in question.
Petitioner argues that limiting questioning on drug use to the previous 24 hours does not fully capture the range of drug use that could have had an effect on the victim's ability to perceive events on September 15, 1995. However, petitioner offers no basis for finding that drug use has a continued effect on one's ability to perceive or remember events more than 24 hours later. The First Circuit has declined to establish a fixed rule as to for how much time before an event drug use can be considered relevant. United States v. Hickey, 596 F.2d 1082, 1090 (1st Cir. 1979). While evidence about the victim's general drug use and her mother's past filing of the TRO based on drug abuse might somehow suggest that the witness was under the influence of drugs on the night in question, the Appeals Court was not unreasonable in ruling that such reasoning requires speculation. I note that once the judge ruled drug use was only relevant to the issue of the witness's perception and memory of the events in question, it was petitioner's counsel who suggested allowing questioning with respect to the previous 24 hours. Therefore, although I recognize that limiting questioning to the 24 hours before the event circumscribed the evidence about the victim's drug use, I cannot say that it was an unreasonable application of the Supreme Court's Sixth Amendment Confrontation Clause jurisprudence.
III. Ineffective Assistance of Counsel
Petitioner's brief on remand advances two bases for finding that his trial counsel's performance was unconstitutionally deficient under the Sixth Amendment. First, he contends that counsel pursued a contradictory theory of defense by conceding in opening argument that consensual sexual activity had taken place, while in his closing argument he disputed that the defendant had been involved in such activity. Second, he contends that counsel failed to make arguments that would have led to the court's admission of the victim's medical evidence showing that she had chlamydia. He argues this evidence, if admitted, when combined with evidence showing petitioner never contracted chlamydia, would have strongly suggested that petitioner did not have sexual intercourse with the victim. Petitioner has at times raised other allegations of inadequate representation, but they are not pressed on remand.
Recognizing that the First Circuit remanded Evicci's petition with the observation that "we might say that the applicant failed to provide us enough information to make even a `colorable showing' regarding ineffectiveness," Evicci v. Comm'r, 226 F.3d at 28, I believe that before addressing the merits, I am obligated to evaluate independently and in detail whether such claims as are now presented have been exhausted.
A. The Principles of Exhaustion
In order for a federal court to grant a state inmate's habeas petition, the inmate must have fully exhausted available state remedies. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion doctrine requires a state inmate to "fairly present" each and every claim to a state court before a federal court can consider it. Id. "Fair presentation" of a claim means that one has "fairly and recognizably presented to the state courts the factual and legal bases of th[e] federal claim." Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997). "[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick." Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988). This requirement ensures that state courts have the first opportunity to correct their constitutional errors. Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard, 404 U.S. at 275).
Exhaustion requires that the "petitioner present, or do his best to present, his federal claim to the state's highest tribunal," here the SJC. Adelson, 131 F.3d at 263. It is not enough to raise the issue to the Massachusetts Appeals Court, rather the claim must be contained within the "four corners of" the application for leave to obtain further appellate review (ALOFAR) filed with the SJC. Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir. 1988); see Mass. R. App. Proc. 27.1(b).
Ineffective assistance of counsel claims must be exhausted as to each ground alleged to constitute a violation of the Sixth Amendment. See Demarest v. Price, 130 F.3d 922, 932-33 (10th Cir. 1997); Flieger v. Delo, 16 F.3d 878, 884-85 (8th Cir. 1994); Footman v. Singletary, 978 F.2d 1207, 1210-11 (11th Cir. 1992); Burbank v. Maloney, 47 F. Supp.2d 159, 161-62 (D.Mass. 1999); Sanford v. Senkowski, 791 F. Supp. 66, 68 (E.D.N.Y. 1992). It is not sufficient to have presented an ineffectiveness claim generally; rather a petitioner must present in the state and federal courts the same factual and legal basis for the specific ineffectiveness claim. To treat as exhausted an inmate's specific claim of ineffective assistance of counsel based on his having brought a broad or different ineffectiveness claim (or some other narrowly framed ineffectiveness claim) in state court would "undermine the ability of the state courts to review claims of ineffective assistance of counsel and force federal courts to review an endless variety of ineffectiveness claims that the state courts never had the opportunity to consider." Fleiger, 16 F.3d at 885.
Because ineffectiveness claims are frequently based on multiple instances of attorney conduct, considered individually and collectively, a federal habeas court must determine whether new information raised for the first time in the federal court constitutes mere supplementation of the record without violating the exhaustion doctrine or a new claim that must be presented afresh to the state courts. The concern for comity, which fuels the exhaustion doctrine, demands fairly stringent enforcement of exhaustion requirement when introducing new evidence or legal arguments. "Therefore, although a habeas petitioner will be allowed to present to a federal court bits of evidence that were not presented to the state court that first considered his claim, evidence that places the claims in a significantly different legal posture must first be presented to the state courts." Demarest, 130 F.3d at 932 (internal quotations and citations omitted).
The Commonwealth has not raised the defense of nonexhaustion on remand; nevertheless, I may raise it sua sponte. See Brock v. Artuz, 2000 WL 1611010 (S.D.N.Y. Oct. 27, 2000). See, e.g., Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000); Paradis v. Arave, 130 F.3d 385, 390 (9th Cir. 1997); Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997); Esslinger v. Davis, 44 F.3d 1515, 1525 (11th Cir. 1995). While courts are normally wary of raising non-jurisdictional defenses on their own, there is an exception where "a doctrine implicates . . . values that may transcend the concerns of the parties to an action." Acosta, 221 F.3d at 122 (internal quotations omitted). The exhaustion doctrine implicates the important institutional interests of comity and federalism — and specifically the role and resources of the federal courts. A federal court, thus has an obligation to consider raising lack of exhaustion sua sponte. See Granberry v. Greer, 481 U.S. 129, 134 (1987).
In 1996, Congress made it more difficult for courts to find that a state has waived its exhaustion defense when it required a state to do so expressly through counsel. See 28 U.S.C. § 2254(b)(3). Since the Commonwealth would be free to raise nonexhaustion before the Court of Appeals without prejudice, I opt to take up the issue here to avoid needlessly extending litigation and delaying petitioner from bringing his claims before the state courts should he choose to do so. See Granberry, 481 U.S. at 132.
28 U.S.C. § 2254(b)(3) provides: "A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement."
B. Efforts to Present Petitioner's Ineffectiveness Claims
The extended course of review of petitioner's conviction has proliferated theories for petitioner's Sixth Amendment claim of ineffective assistance of counsel. With the most recent addition in briefing by counsel whom I appointed to represent petitioner on this remand, I now count five separate circumstances that petitioner has at some point argued constitute denial of the Sixth Amendment right to effective counsel. I rehearse their procedural history, with a focus on the two grounds pressed here, to determine whether petitioner has in fact properly exhausted his state remedies regarding the theories now before me.
1. Claims Presented to the State Courts on Direct Review
On direct review, the Massachusetts Appeals Court considered and rejected three allegations of ineffective assistance of counsel raised by new appellate counsel: 1) trial counsel's failure to object to the questioning of Officer Santos; 2) trial counsel's failure to have analysis performed of blood and seminal fluid on the victim's pants and sweatshirt; and 3) trial counsel's failure to file written requests for jury instructions. Commonwealth v. Evicci, 46 Mass. App. Ct. 1114, slip op. at 12 (Feb. 22, 1999).
Evicci cited two written jury instructions that should have been requested: 1) an instruction concerning the effect of mistake of fact as to consent on an aggravated rape charge; 2) an instruction to inform the jury that it could consider deficiencies in the police investigation. Commonwealth v. Evicci, 46 Mass. App. Ct. 1114, slip op. at 13 (Feb. 22, 1999).
In the Application for Further Appellate Review ("ALOFAR"), during direct review, petitioner's new appellate counsel renewed before the Supreme Judicial Court the second and third arguments made to the Appeals Court. In attempting to refute the Appeals Court's conclusion that the failure to test the blood and semen was harmless because "there was no dispute that sexual activity had occurred," petitioner suggested that trial counsel's closing argument contradicted his opening statement.
Petitioner's ALOFAR states:
Trial counsel argue[s] in his closing that the Commonwealth failed to link the semen samples to the defendant, and states that they could have belonged to anyone because the defendant had only registered the used van three weeks earlier. [VI/45-46] He never requests the Bowden instruction, which would inform the jury that they could consider deficiencies in the police investigation. This portion of trial counsel's closing argument is actually contradictory with his opening statement. In ruling that testing would not have helped the defendant, the Appeals Court states that "there was no dispute that sexual activity had occurred." (See opinion at page 12). The only statement in the trial from which the Appeals Court could make that conclusion (since there were no defense witnesses) would be in trial counsel's opening statement when he stated that there was consensual sex between the parties [III/7]. All these errors by trial counsel indicate that his representation fell below that of an ordinary fallible attorney and deprived the defendant of a consistent defense.
[ALOFAR at 14-15.]
2. Claims Initially Presented Pro Se in this Federal Habeas Review
The supporting role cast on direct review before the SJC for alleged contradictions in trial counsel's theory as presented by him to the jury has blossomed into a fully independent claim through the course of this federal habeas litigation. In his original hand written petition, Evicci himself listed four grounds for habeas relief, of which portions of two identified ineffectiveness claims: failure of counsel to adduce exculpatory evidence (ground 1) and failure of counsel to secure crime watch video and other evidence for trial (ground 4). As part of the first ground, petitioner cited to and attached Attorney Methe's ALOFAR discussed above. While I dismissed the entire habeas petition for failure fully to exhaust (with exception of the Confrontation Clause Claims), the First Circuit's per curiam opinion must be read to have held that certain ineffectiveness claims (to the degree there was "enough information to make even a colorable showing," Evicci v. Comm'r of Corrections, 226 F.3d at 28) had been exhausted and remanded them for consideration "out of an abundance of caution." Id. In laying out petitioner's theory of ineffectiveness, the First Circuit isolated this latest argument — that trial counsel's performance was unconstitutionally deficient because he pursued an internally inconsistent theory of defense — as the exhausted ineffectiveness claim.
3. Claims Presented to the State Courts in Post-Conviction Post-Appeal Review
It bears noting that the petitioner in his pro se petition does not identify this theory as grounds for ineffectiveness. Rather, it appears that the First Circuit chose to make it a ground by reviewing the state court ALOFAR and assimilating to the instant petition arguments made there to the SJC despite their absence from the document initiating this federal proceeding. See supra Notes 1 and 2.
In his pro se brief to the Appeals Court on appeal of three of his post-conviction motions, Evicci argued that counsel had been ineffective in failing to introduce the victim's medical evidence after Evicci had told counsel that they did not have intercourse, but rather that he had been masturbated by the alleged victim. The Appeals Court rejected all of Evicci's claims, finding, not altogether accurately, that they "essentially raise the same grounds as formed the basis for the direct appeal of his convictions." Commonwealth v. Evicci, 51 Mass. App. Ct. 1113, slip op. at 1-2 (June 7, 2001). The Appeals Court summarily disposed of the issues raised in petitioner's second post-conviction challenge characterizing "[h]is [ineffectiveness] and other arguments, which are contained in one or two sentences, [as] presented in conclusory fashion" and consequently waived. Commonwealth v. Evicci, 53 Mass. App. Ct. 1113, slip op. at 1 (Jan. 23, 2002).
In his pro se brief to the Appeals Court, petitioner argued an ineffective assistance of counsel claim based on the exclusion of evidence about chlamydia and the lack of penetration by petitioner, but did not make clear the argument that his own asserted lack of chlamydia was an independent basis for admitting the chlamydia evidence. He wrote:
The Appellant has been erroneously convicted, and imprisoned . . . being that no tangible scientific evidence to substantiate rape conviction, i.e., `penetration.' The hospital exam reports indicate that the alleged victim had sexualy [sic] transmittable disease but doctor doesn't say anything about it nor is defense allowed to due to erroneous rulings by Judge. The trial Judge didn't allow defense counsel to argue that if the alleged victim had noticeable redness about vagina it may had occurred due to her health problems, and or way of life she led as a drug addict and prostitute . . . Well that too is the ineffective assistance of counsel, and doctors bias too, the doctor never says who or how physical condition may had occurred to alleged victim in relation to time of incident with the appellant in minivan or after nor before but he rather go's for a slay ride with the prosecution leading the way. Penetration had never taken place by defendant-appellant nor could anybodie [sic] say it did honestly and justly, the jury erred by doing so . . .
Br. for Def./Appellant, filed April 10, 2000, at 6-7.
4. Claims Asserted on Remand in this Court by Appointed Counsel
Petitioner's theories of ineffective counsel have been considerably refined on remand by Professor Rossman, his newly appointed federal habeas corpus counsel. In addition to presenting a fully articulated contradiction theory, he contends that trial counsel's failure successfully to oppose the exclusion of medical evidence regarding the victim's infection with chlamydia constituted ineffective assistance of counsel because trial counsel did not advance as grounds a non-penetration theory of admissibility. Although trial counsel did oppose exclusion of the evidence, his only argument was that the chlamydia infection was relevant to petitioner's claim that the victim was a prostitute, an argument that was rejected on direct appeal as purely speculative and in conflict with the Rape Shield Law. See Commonwealth v. Evicci, 46 Mass. App. Ct. 1114, slip op. at 7-9 (Feb. 22, 1999). The petitioner now contends that his attorney should have argued for admission of the evidence by showing that the petitioner's lack of infection presents a high probability that he did not engage in sexual activity involving penetration of the victim, who was infected at the time.
For purposes of this petition, I assume arguendo that the petitioner could show that he was not infected with chlamydia as a result of sexual activity with the alleged victim. See generally June 12, 2001 Procedural Order at 2 ¶ 2 (No. 100); Respondent's Election (No. 103).
While not raising the issue on direct review, Evicci arguably raised something close to this theory of ineffectiveness in the first of his post-conviction challenges to reach the Appeals Court. The Appeals Court, however, dismissed that petition summarily as presenting "essentially . . . the same grounds as formed the basis for the direct appeal of his convictions." 51 Mass. App. Ct. 1113, slip op. at 1 (June 7, 2001).
C. Application of Exhaustion Principles to Petitioner's Presentation of the Instant Ineffectiveness Claims
The history, set forth in Section II.B., supra, of the development of petitioner's ineffectiveness claims makes clear that neither prong of petitioner's ineffectiveness theories now urged here has cleared the exhaustion hurdle.
1. Inconsistent Defenses
The issue of an inconsistent defense, while mentioned in petitioner's direct appeal ALOFAR, was not advanced as a separate basis for an ineffectiveness claim nor was it identified as a federal constitutional claim. Rather, not having been raised to the Appeals Court, it was merely offered as context to argue to the SJC against the Appeals Court's conclusion that counsel's failure to test blood and semen was harmless. The passing characterization of the closing by trial counsel as "contradictory," without setting the argument apart as a separate basis for ineffectiveness or citing to a single case, failed to put the SJC on notice regarding something to be addressed as a separate federal claim.
I am reticent to treat mention of a precursor to the current contradiction theory in the ALOFAR as constituting fair presentation to the state courts. This is particularly so because this theory as now developed itself can be said to have contradicted one of petitioner's ineffectiveness claims simultaneously being pressed in the state courts through petitioner's direct review ALOFAR. Petitioner argued in the ALOFAR that trial counsel erred in failing to test semen on the victim and her clothing, contending that it would have cast doubt on whether the fluids belonged to Evicci. Of course, petitioner now contends that counsel's closing argument was ineffective in part because it attempted to refute the physical evidence linking petitioner to the victim, as opposed to arguing solely a theory of consensual sexual activity that did not include genital penetration. It expects too much of the SJC to have interpreted petitioner's ALOFAR as simultaneously questioning the Appeals Court's ruling on counsel's failure to test the physical evidence and also introducing a new and somewhat contradictory contention that counsel erred by not arguing singlemindedly that the sexual activity producing semen was consensual.
Presumably, the blood testing could have been designed to explore the theory that the blood was not that of the victim but rather some third party in an effort to show the encounter between the victim and the defendant was not assaultive.
2. Chlamydia
The failure to argue the chlamydia evidence prong of the ineffectiveness claim similarly stumbles at the exhaustion threshold. This theory, like the contradictory defense theory, was not mere supplementation of a previous, exhausted argument; it was never fairly presented to the SJC. It was absent from petitioner's attempted direct review of his conviction and made its first appearance in the Superior and Appeals Court in petitioner's first state post-conviction review, as to which appeal to the SJC was not perfected. As such, it is insufficient to satisfy the exhaustion doctrine. Mele, 850 F.2d at 821.
The petitioner on remand began to raise the chlamydia issue in its current posture before me through a motion for discovery regarding biological samples taken from him. In a procedural order dated June 12, 2001, I denied discovery noting "I do not view the chlamydia issue to have been exhausted in the state courts." I offered the petitioner the opportunity to proceed with the petition subject to 28 U.S.C. § 2254(b)(2) (which permits a petition to "be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State") or have his petition dismissed without prejudice in order to pursue unexhausted claims in the state courts. The petitioner chose to continue in this court. I may consequently proceed to the merits, even given apparent lack of explicit exhaustion, to determine whether the claims should be denied. Before making that determination, however, I must first address the issues in the procedural context of whether the issues have been effectively exhausted by default in the state courts.
D. Procedural Default Principles as Applied to Petitioner's Ineffectiveness Claims in State Court
Having found that Evicci has not fairly presented to the SJC either prong of his ineffectiveness claim as now fleshed out to me on remand, the next issue for me becomes whether he might still be able to raise these issues to the state courts. If the claims, not having been raised previously to the state courts, are deemed defaulted as a matter of state law, then state remedies are no longer available and exhaustion is satisfied. Carsetti v. Maine, 932 F.2d 1007, 1011 (1st Cir. 1991); see Hall v. DiPaolo, 986 F.2d 7, 10 (1st Cir. 1993). That, however, is generally of little help to a federal habeas corpus petitioner because default constitutes a separate procedural bar that would prevent a federal court from hearing the claim unless petitioner can show both cause and prejudice for failing to raise the issue below. Id. Indeed, the First Circuit declined a certificate of appealability as to Evicci's three other claims in this proceeding after finding them procedurally barred for failure to raise them on direct appeal. Evicci, 226 F.3d at 27.
I am informed by the parties that the First Circuit's treatment of the three other claims as waived was made sua sponte without the benefit of briefing by the parties. I have solicited on remand the parties' views regarding whether the petitioner could return to state court to attempt to exhaust the ineffectiveness grounds now asserted in this proceeding. The parties seem to agree and I concur that the matters are not foreclosed in the state court. In evaluating the prospects for such a return, it is necessary to outline my understanding of the availability of post-conviction review in Massachusetts courts.
The parties appear to be in agreement that findings by either the First Circuit or by me that one or another of the petitioner's claims are likely to be regarded as procedurally barred are not binding on the state courts. The Massachusetts state courts remain free to determine whether in their discretion to make available a post-conviction avenue to press claims, even when the federal courts believe those claims likely to have been forfeited under state law.
In Massachusetts, a motion under Mass.R.Crim.P. 30 for post-conviction relief is the customary means available to an inmate seeking collateral review of his conviction. Soura, Petitioner, 436 Mass. 1003 (2002). A Rule 30(b) motion can be filed "at any time, as of right." Mass.R.Crim.P. 30(a). Rule 30 provides that all grounds for relief "shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not have reasonably been raised in the original or amended motion." Mass.R.Crim.P. 30(c)(2) (emphasis added). The issue is whether the discretion afforded the trial judge by Rule 30(c)(2) renders this state remedy available for petitioner's unexhausted ineffectiveness claims or whether I should find as a matter of law that the state court would deem the claims waived and therefore procedurally barred.
The discretion afforded the Massachusetts trial judge to forgive petitioner's waiver of a claim is by no means unbounded. Commonwealth v. Amirault, 424 Mass. 618, 641 (1997) ("no such unreviewable and unilateral power of resurrection exists"). The SJC "has recommended restricting the exercise of that power to those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994) (quoting Commonwealth v. Watson, 409 Mass. 110, 112 (1991) (internal quotations omitted)). In practice, where the motion for new trial is granted by a judge who did not preside over the original trial, the appellate court will review de novo the court's decision on the same "substantial risk of a miscarriage of justice" standard. Amirault, 424 Mass. at 640. When the motion is heard by the original trial judge, the appellate court is more deferential in its review. Commonwealth v. Curtis, 417 Mass. 619, 626 (1994).
I note that Judge McHugh, the Superior Court trial judge in the 1996 trial of this case, was elevated to the Appeals Court in 2001. Consequently, he is presumably unavailable to hear any motion for a new trial.
Nevertheless state law clearly grants state judges the discretion to excuse waiver if the claim is sufficiently compelling. It is somewhat anomalous, given the purported interests of comity and federalism said to be advanced by the requirement of exhaustion, for federal courts to bypass a determination by state judges of whether to exercise such discretion while hastening to pronounce, without a prior state court ruling, a claim procedurally barred. Nevertheless, the case law directs that the nature of the doctrines of exhaustion and procedural default require federal courts independently to examine what a state court will do when faced with an issue. "In determining whether a remedy for a particular constitutional claim is available, the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim." Carsetti v. Maine, 932 F.2d at 1012 (quoting Harris v. Reed, 489 U.S. 255, 268 (1989) (O'Connor, J., concurring)); see Hall v. DiPaolo, 986 F.2d at 10.
Under state law, the procedural issue of waiver is intimately intertwined with the substantive merits question when the claim is ineffective assistance of counsel. Cause for failure to raise an ineffectiveness claim on direct appeal is generally presumed and the inquiry proceeds directly if belatedly to the prejudice prong. The SJC has stated that the standard for allowing an exception to waiver is equivalent to the standard used to determine whether there was ineffective assistance of counsel. See Commonwealth v. Azar, 435 Mass. 675, 686 (2002) (quoting Curtis, 417 Mass. at 624 n. 4); see also Commonwealth v. Randolph, 438 Mass. 290, 295-96 (2002). Therefore to determine whether the state court would find petitioner's claim waived, I must evaluate the substance of his unexhausted ineffectiveness claims according to the same standard used to decide the merits.
The willingness to permit belated assertion of ineffective assistance claims is reflected in a decision by the Supreme Court of the United States this term adopting as the rule for post-conviction review of federal criminal judgments under 28 U.S.C. § 2255 that "failure to raise an ineffectiveness claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding." Massaro v. United States, 123 S.Ct. 1690, 1696 (2003). As a practical matter, the Massachusetts approach appears to be essentially the same, although a defendant represented, as petitioner was here, by appellate counsel different from trial counsel may also have to satisfy the intermediate step of demonstrating that the failure to raise the issue on appeal was a "manifestly unreasonable" choice by appellate counsel. See generally Commonwealth v. Amirault, 424 Mass. 618, 645 n. 19 (1997); Breese v. Commonwealth, 415 Mass. 249, 251 (1993); Commonwealth v. Adams, 374 Mass. 722, 728 (1978); Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 233, review denied, 415 Mass. 1105 (1993).
I recognize that in using the term "merits" in this context, I am not using the classic definition. In this context, a merits showing takes on the heightened burden of demonstrating a claim so meritorious that its denial causes prejudice in the form of a "substantial risk of a miscarriage of justice."
1. Inconsistent Defenses
A review of the closing argument by defendant's counsel makes clear that there was no ineffectiveness, let alone a substantial miscarriage of justice, in his contention that the semen samples could have belonged to anyone, after setting out in his opening the theory that there was a consensual sexual encounter. It is evident that this was not an inconsistent argument but rather a collateral swipe at the substantiality of the prosecution's theory. Defendant's trial counsel, by arguing the failure to link the samples to the defendant, sought to emphasize that the police investigation was less than diligent, that it did not engage in even the most basic steps. This subsidiary argument dovetailed with the more basic contention that the victim's story of forced sex should not be accepted on its face, that it would, in fact, have been rejected if more careful consideration of the evidence were undertaken. Far from constitutional ineffectiveness, this subsidiary argument represented a reasonably competent effort to make the most of the various bits and pieces of evidence in service of the larger defense theory — consistent with that pressed in the instant, more refined, effort at post-conviction review — that the sexual encounter was consensual. There is no likelihood that the state courts could find prejudicial ineffectiveness in this regard. Consequently, there would be no basis to forgive waiver of the argument during direct appeal and earlier state post-conviction proceedings.
2. Chlamydia
The question of prejudice from the failure to develop the chlamydia evidence as supportive of a consensual — or at least non-penetrating — sexual encounter theory is not disposed of so quickly.
Although the question is close, I will assume defense counsel's failure to press the evidence was below the acceptable level of professional competence. Petitioner's theory — that the victim's contemporaneous infection with an STD, when combined with his own asserted lack of infection, raises doubts as to whether there had been penetration was not completely unknown at the time of petitioner's trial. In fact, the Supreme Judicial Court had suggested a few months earlier that such evidence would be both relevant and probative if properly introduced by an expert witness capable of explaining its import. Commonwealth v. Kirkpatrick, 423 Mass. 436, 447 (1996); see also Commonwealth v. Barresi, 46 Mass. App. Ct. 907, 908 (1999). The SJC in Kirkpatrick expressly reserved the question presented here because the parties did not raise the issue. "We leave for a possible motion for a new trial the question whether the defendant's trial counsel might have been ineffective in a constitutional sense in failing to obtain an expert witness qualified to testify about any conclusions which could be drawn from the medical records of the defendant and the victim." 423 Mass. at 448.
As the First Circuit has recognized in the evaluation of ineffectiveness claims:
`[j]udicial scrutiny of counsel's performance must be highly deferential.' The practice of law is not a mechanical exercise (like, say, kicking a foot press), and an inquiring court must leave ample room for variations in professional judgment. See id. By like token, a reviewing court must not lean too heavily on hindsight: a lawyer's acts and omissions must be judged on the basis of what he knew, or should have known, at the time his tactical choices were made and implemented. Only if, `in light of all the circumstances, the [alleged] acts or omissions of counsel were outside the wide range of professionally competent assistance,' can a finding of deficient performance ensue.
Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002) (citations omitted). The Massachusetts law of ineffectiveness is "roughly equivalent" to federal law. Id. at 31 n. 8.
A strong argument can be made under the law of ineffectiveness that unfamiliarity by counsel with developing research in the area of sexually transmitted diseases and its application to the evidence at the trial of petitioner's case was within the tolerable range of professional competence. Because the record does not provide a basis for evaluating professional competence in this record — and because the SJC had signaled a receptivity to chlamydia evidence shortly before the trial in this case — I decline to have my analysis turn on the threshold question whether the failure to recognize and exploit the significance of the chlamydia evidence to the defense was subcompetent.
Petitioner's reference on remand to scientific studies supporting his theory suggests the possibility that an expert witness might have been able to explain the victim's medical history in a way that is both relevant and exculpatory. Research published contemporaneously with petitioner's trial tended to show that the infection rate of males exposed to females with chlamydia is 68 percent. T.C. Quinn et al., Epidemiologic and Microbiologic Correlates of Chlamydia Trachomatis Infection in Sexual Partnerships, 276 JAMA 1737 (1996). Research published shortly before the appeal was argued, Juey-Shin L. Lin, et al., Transmission of Chlamydia trachomatis and Neisseria gonorrhoeae Among Men with Urethritis and Their Female Sex Partners, 178 J. Infectious Diseases 1707 (1998), was consistent and suggested that the infection rate was not affected by the number of sexual exposures. This evidence would appear sufficient to establish a meaningful probability that Evicci's single sexual encounter with the victim would have resulted in his infection with chlamydia if the encounter had taken place as described by her.
The petitioner's counsel did not tender an expert witness at trial; but this is simply further evidence of ineffectiveness. I am satisfied by the studies attached to petitioner's brief on remand that there is a scientific basis to relate lack of chlamydia infection to defendant's consensual relations/non-penetration theory.
Thus, the chlamydia evidence would have supported petitioner's argument that there was no penetration and that the sexual contact between the defendant and the victim (her masturbation of him) was consensual or at least was not rape. Whether the state courts are likely to find counsel's failure to develop such a defense at trial constituted a substantial miscarriage of justice sufficient to excuse waiver and grant relief is the next question to which I turn.
Such nonconsensual sexual contact not involving penetration would reduce the offense to the comparatively less serious crime of indecent assault and battery.
And appellate counsel's failure to raise it on direct appeal, see Note 13 supra.
In determining whether there is a substantial risk of miscarriage of justice, Massachusetts state courts are required to
determine `if we have a serious doubt whether the result of the trial might have been different had the error not been made.' We review the evidence and the case as a whole. We consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision. `A new trial will be ordered only in the extraordinary situation where, after such a review, we are left with uncertainty that the defendant's guilty has been fairly adjudicated.'
Commonwealth v. Azar, 435 Mass. 675, 687 (2002) (citations omitted).
It is apparent that the failure to develop the chlamydia evidence was not a tactical choice by the petitioner's trial counsel. It was plainly the result of a failure to understand its full significance to his defense. Indeed the chlamydia evidence properly understood plainly had the potential for advancing the primary exculpatory defense of consent and the secondary mitigation defense that at most the encounter involved the less serious crime of indecent assault and battery by raising questions about the victim's testimony regarding how the encounter occurred.
Weighed against the potential for the defense, however, is the very substantial strength of the Commonwealth's case. To be sure, acceptance of the testimony of the victim was necessary for the prosecution to prevail; but her testimony had crucial corroboration. The physical injuries to her and the blood on her clothing were consistent with her story of assault and penetration. Her emergence from the van partially clothed and yelling a very fresh complaint were not consistent with simple manual manipulation of the defendant. I find it unlikely that the state courts confronting petitioner's case yet again, even with the chlamydia evidence argued as it has been in this proceeding, would entertain any serious doubt that the result would have been different had the chlamydia evidence been introduced with the supporting scientific theory developed on remand before me. I find it similarly unlikely that the state courts would view this case as an extraordinary situation where there is uncertainty about the fairness of the determination of petitioner's guilt on the charges as found by the jury.
Under the circumstances, having concluded that the state courts would find the alleged ineffectiveness caused the petitioner no prejudice, I find it likely they would treat the claim as defaulted as a matter of state court.
D. Procedural Default Principles as Applied to Petitioner's Ineffectiveness Claims in Federal Court
Having found that the state courts are unlikely to accord Evicci a hearing on the merits of his unexhausted ineffectiveness claims, and thus that the claims are exhausted as a result of procedural default, I turn to a separate federal cause and prejudice analysis. This is because "[w]here exhaustion has obtained through a procedural default, the habeas petitioner must show cause for that default and prejudice arising therefrom before the federal court may reach the merits of his habeas claims." Hall v. DiPaola, 986 F.2d at 10.
As I have observed, Note 11 supra and accompanying text, ineffectiveness of counsel is sufficient to meet the cause prone of the required showing and move the analysis directly to the prejudice prong. The definition of prejudice for ineffective assistance claims in federal court appears essentially the same in the state courts, as the Supreme Judicial Court has recognized, Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994). The First Circuit has noted that the prejudice inquiry for ineffectiveness claims and that for procedural default are "one and the same," Prou v. United States, 199 F.3d 37, 48-49 (1st Cir. 1999), and is drawn from the ineffectiveness case of Stickland v. Washington, 466 U.S. 668 (1984) and the procedural default case of Strickler v. Greene, 527 U.S. 263 (1999). The question is "whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 467 U.S. at 694. However, "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the case." Id. at 693. "`The 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.'" Strickler v. Greene, 527 U.S. at 289-90 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
I emphasize for purposes of analytical clarity that my inquiry at this point whether the failure to develop and press the chlamydia evidence makes the guilty verdicts unworthy of confidence as a matter of federal constitutional law is distinct from my inquiry whether under state law this failure created a substantial risk of miscarriage of justice. Although the standards are articulated in a similar fashion, the substantial miscarriage analysis in this context addresses state procedural default, while the "worthy of confidence" analysis addresses the merits as a federal question in the face of state default. Moreover, the "worthy of confidence" analysis addresses an independent federal question as to which state court determinations on a parallel question (even when rendered by me as a form of substituted judgment as to the likelihood of a state court determination) are entitled to no particular deference even if objectively reasonable. That said, and not surprisingly, my independent approach to the prejudice prong as a matter of federal law tracks my anticipation of whether the state court would find there was a prejudice as a matter of state law. I have read and reread the trial record in this case and conclude that while the chlamydia evidence as argued to me would have brought a dimension of scientific research and expertise to petitioner's defense, its absence does not undermine my confidence in the verdict or the fairness of the trial. The carefully refined defense that what occurred was a consensual sexual encounter without penetration of the victim in one form or another sufficient to constitute rape is far too frail to stand up against force of the victim's testimony as corroborated by the nature of her injuries and her state of undress, fresh complaint and excited utterances immediately after emerging from the van. After extended reflection, I am satisfied that, even with the chlamydia evidence, there would have been no difference in the result and that the result was a verdict worthy of confidence. Consequently, even if there was ineffectiveness by defense counsel in this regard, it caused no prejudice to petitioner.
III. Conclusion
For the reasons set forth more fully above, I hereby DISMISS the instant petition finding petitioner's two claims under the Confrontation Clause without merit and finding his two ineffective assistance of counsel claims as now refined for federal post-conviction review not to have been exhausted in the state courts, not to be of a character the state courts would address given the failure to present them on direct appeal or subsequent state post-conviction review proceedings, and not to be of sufficient merit that their denial demonstrates prejudice to the petitioner.