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Ferrell v. Wall

United States District Court, D. Rhode Island

January 18, 2013

JASON FERRELL, Petitioner,
v.
ASHBEL T. WALL, Respondent

For Jason Ferrell, Petitioner: George J. West, One Turks Head Place, Providence, RI.

For A. T. Wall, Warden, of Adult Correctional Institution, Respondent: Aaron L. Weisman, LEAD ATTORNEY, Attorney General's Office, Providence, RI.

OPINION

Page 423

John J. McConnell, Jr., United States District Judge.

MEMORANDUM AND ORDER

This is this Court's second Memorandum and Order concerning Jason Ferrell's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition). See Ferrell v. Wall, 862 F.Supp.2d 88 (D.R.I. 2012) ( Ferrell Federal ). In his Petition, Mr. Ferrell set forth nine grounds for relief. (ECF No. 1.)[1] This Court dismissed six of those grounds in response to the State's Motion to Dismiss. (ECF Nos. 10, 23.) Mr. Ferrell's three remaining grounds assert the following: ground one, the state trial court's improper limitation of a defense alibi witness' testimony violated Mr. Ferrell's Sixth Amendment compulsory process rights; ground two, the insufficient evidence to support Mr. Ferrell's two conspiracy convictions violated his due process rights; and ground three, Mr. Ferrell's consecutive sentences on the two conspiracy counts violated the Fifth Amendment's prohibition against double jeopardy. ( See ECF No. 1 at 5-10; ECF No. 23 at 1, 12-33, 46; ECF No. 24.) This Court heard oral argument twice, studied the parties' submissions, read the voluminous state court papers, reviewed the trial transcript, and conducted extensive legal research. For the reasons explained below, Mr. Ferrell's Petition is GRANTED as to ground one, GRANTED as to ground two, and DENIED AS MOOT as to ground three.

I. BACKGROUND

This Court's May 2012 decision, Ferrell Federal, contains the lengthy and complex procedural history of Mr. Ferrell's claims, as well as a more comprehensive discussion of the facts regarding the underlying

Page 424

crimes. (ECF No. 23.) As in this Court's prior decision, the facts are as described in the R.I. Supreme Court opinion affirming Mr. Ferrell's conviction, State v. Oliveira, 774 A.2d 893, 900-03 (R.I. 2001), and " supplemented with other record facts consistent with the [R.I. Supreme Court's] findings." Shuman v. Spencer, 636 F.3d 24, 27 (1st Cir. 2011) (quoting Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009)).

On December 18, 1995, on the West Side of Providence, Rhode Island, John Carpenter and Lorenzo Evans were traveling in a blue Chevrolet. Three men in a black Jeep chased them and then shot at them. Mr. Carpenter was killed, while Mr. Evans fled. Mr. Evans ran through yards to a nearby house, banged on its door, and then ran to the side of the house. From that vantage point, he looked out to the street and saw a white Ford with two men in it, and the one in the driver's seat was holding a " chrome object." Although unable to identify any of the assailants when he was at the police station that day, Mr. Evans later identified the three men in the Jeep as Pedro Sanders, Gahil Oliveira, and Robert McKinney, and the two men in the Ford as Mr. Ferrell and Jermaine Campbell.[2]

All five men identified by Mr. Evans were charged with four crimes: (i) first-degree murder of Mr. Carpenter; (ii) conspiracy to murder Mr. Carpenter; (iii) assault with intent to murder Mr. Evans; and (iv) conspiracy to assault with intent to murder Mr. Evans. See Oliveira, 774 A.2d at 902. Their trial occurred in the R.I. Superior Court in March and April of 1997. Id. Mr. Ferrell was tried together with Messrs. Oliveira, Sanders, and Campbell. Id. Mr. McKinney was tried at the same time, before the same trial justice, but by a different jury. Id. at n.4.

Mr. Ferrell was acquitted of murder, but convicted of assault with intent to murder and both conspiracies. Id. at 903. He was sentenced to an aggregate term of forty years of imprisonment, twenty years for the assault with intent to murder and ten years for each of the two conspiracies, with the sentences running consecutively. See Ferrell v. Wall, 889 A.2d 177, 182 (R.I. 2005) (Ferrell 2005); R.I. S.Ct. Crim. Dkt. Sheet Rep., Case ID P1-1196-1547B.

On June 4, 2010, Mr. Ferrell, pro se, filed a Petition in this Court containing nine grounds for relief. (ECF No. 1.) He also filed a Motion to Appoint Counsel. (ECF No. 4.) The Magistrate Judge found that " this is one of the rare § 2254 cases where the appointment of counsel is warranted" and appointed counsel for Mr. Ferrell. (ECF No. 5 at 3.)

The State responded to the Petition by filing a Motion to Dismiss.[3] (ECF No. 10.) The predominant focus of that motion was timeliness. This Court heard argument on the Motion to Dismiss, with Mr. Ferrell present, and then issued a Memorandum and Order dismissing grounds four through nine of the Petition and finding that grounds one through three survived the motion. See Ferrell Federal, 862 F.Supp.2d at 120. A week later, this Court issued an Order setting forth a briefing schedule for the Petition's remaining three grounds. (ECF No. 24.)

Page 425

In response to that Order, the state trial transcript was submitted and the parties filed supplemental briefs and exhibits. ( See ECF Nos. 29, 30, 32, 34.) On December 17, 2012, this Court heard argument with Mr. Ferrell in attendance.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, restricts federal court review of state court convictions and sentences. Before a federal court can reach the merits of a habeas claim, the petitioner " must have fairly presented his claims to the state courts and must have exhausted his state court remedies." McCambridge v. Hall, 303 F.3d 24, 34 (1st Cir. 2002) (citing 28 U.S.C. § 2254(b)(1)(A)).

When a federal court reaches the merits of a habeas claim, the applicable standard of review depends on whether the state court adjudicated the petitioner's claim on the merits. See, e.g., Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006). Where a claim " was adjudicated on the merits in State court proceedings," a federal court may grant habeas relief only if the State court's " adjudication of the claim" either:

(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Where the state court did not adjudicate the petitioner's claim on the merits, the federal court's review of that claim is de novo. Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003). Factual determinations made by the state court are presumed to be correct, with the petitioner bearing " the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. GROUND ONE

The Sixth Amendment's Compulsory Process Clause guarantees criminal defendants " compulsory process for obtaining witnesses in [their] favor." U.S. Const. Amend. VI.[4] In ground one of the Petition, Mr. Ferrell asserts that his Sixth Amendment right to compulsory process was violated by the state trial court's refusal to permit his alibi witness Debra Baptista to testify about her contact with him after 11:15 a.m. on the day of the shooting.[5]

The trial court found that Mr. Ferrell's counsel's failure to disclose pre-trial that Debra Baptista had contact with Mr. Ferrell after 11:15 a.m. was " a clear and unequivocal Rule 16 violation for which [his counsel had] no explanation." Tr. at 2065.[6] Mr. Ferrell argues that Debra Baptista's testimony regarding his whereabouts after 11:15 a.m. is crucial because she would have told the jury that Mr. Ferrell returned to her home " somewhere around quarter past 11:00" and remained there

Page 426

until " around 11:30, 11:35" thus negating the State's assertion that he was present near the scene of the crime across town. Id. at 2064. Mr. Ferrell contends that if the excluded testimony was believed by the jury, it " would have demanded acquittal." (ECF No. 34 at 2.)

The pertinent time period for Mr. Ferrell's alibi hinges not only on the time of the shooting, but also on the travel time between the shooting and the locations where Mr. Ferrell was seen by his alibi witnesses. The crimes occurred on the West Side of Providence, while Mr. Ferrell's alibi witnesses saw him on the East Side of Providence. See Ferrell Federal, 862 F.Supp.2d at 100 n.15. If a jury believed Debra Baptista's testimony that Mr. Ferrell was at her East Side home from 11:15 a.m. to 11:30 or 11:35 a.m., then Mr. Ferrell asserts that he could not have been present on the West Side when Mr. Carpenter was shot and could not have been sighted on the West Side shortly after that shooting.

A. R.I. Superior Court

Before trial, the State represented that the " Time of Offense" was " Approximately 11:30 am," as well as " On or about 11:22 am." (ECF No. 34-1 at 11, 19). At trial, the State's medical examiner testified that Mr. Carpenter was pronounced dead at 11:27 a.m. Tr. at 837, 890. Also at trial, the State called a detective in the Providence Police who testified that it takes between eight and nine minutes to drive from Providence's West Side to its East Side. Id. at 1799, 1808-12.

At trial, Debra Baptista testified that on December 18, 1995, Mr. Ferrell came to her home between 10:45 a.m. and 11:00 a.m. Id. at 2053. She said that Mr. Ferrell remained at the Baptista home " about fifteen to twenty minutes," and then he left, departing between 11:10 a.m. and 11:15 a.m. Id. at 2054. When Debra Baptista was asked if Mr. Ferrell returned to her home after that departure, she responded " Yes," as she " had beeped" Mr. Ferrell. Id. at 2054-55. When she was asked about the time that elapsed between Mr. Ferrell's departure and when she beeped him, the State objected and its objection was sustained. Id. at 2055. Debra Baptista was then asked if she recalled the time that she beeped Mr. Ferrell. Id. The ...


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