L'ABBE v. DiPAOLO, (D.Mass. 2002)

O'TOOLE, D.J.

By a previous Memorandum and Order, this Court denied the petitioner's application for issuance of a writ of habeas corpus, concluding that the grounds relied on did not satisfy the necessary grounds for the issuance of the writ expressed in 28 U.S.C. § 2254(d). The petitioner now seeks a certificate of appealability under 28 U.S.C. § 2253(c). His application is GRANTED IN PART and DENIED IN PART.

The petitioner asserted two separate grounds in support of his habeas petition. First, he argued that the state courts had improperly concluded that he was mentally competent to stand trial. Second, he claimed that his prosecution for first degree murder, classified as a "capital" crime under Massachusetts law, could not lawfully proceed after he voluntarily chose to waive his presence in the courtroom. In the prior Memorandum and Order, this Court concluded that the petitioner had not demonstrated that the state court's factual conclusion that he was competent to assist counsel to defend him represented "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" so as to justify relief under § 2254(d)(2). This Court also concluded that the state court's decision that the petitioner's murder trial could proceed after he repeatedly waived his right to be present in the courtroom was not a decision that was "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" so as to justify relief under § 2254(d)(1). The application seeks a certificate of appealability as to both issues.

A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He has not made such a showing as to the first issue. As set forth in the prior Memorandum and Order, the state trial judge made detailed factual findings concerning the petitioner's competency based on psychiatric testimony and her own observations of the petitioner's behavior and interaction with his lawyer. Review of the record indicates the findings were amply warranted. Petitioner's claim, at base, is that different findings should have been made. But the pertinent question on habeas review is not whether the state court's factual findings were the only possible findings permitted by the evidence — or put another way, whether a different fact finder might supportably have found the facts differently on the same evidence — but rather whether the court's factual findings were "unreasonable" in light of the evidence. § 2254(d)(2). The petitioner has failed to present a "substantial showing" that the state court's factual findings were "unreasonable . . . in light of the evidence presented. Id. Accordingly, the application for a certificate of appealability is denied as to the first issue presented.

The second issue sought to be appealed is whether there was a constitutional error in permitting the petitioner to waive his presence at the trial. As noted in the prior Memorandum and Order, it is clear that the state court's decision was not "contrary to" Supreme Court precedent, because there is no directly controlling precedent. The petitioner's argument is essentially that it is a necessary implication of some Supreme Court cases that he could not constitutionally have been tried after he voluntarily absented himself from the courtroom.

This Court rejected that argument, as explained in the prior Memorandum and Order. However, because there is a paucity of pertinent case law, it is possible that reasonable jurists could disagree about whether the principle the petitioner contends for could, or should, be drawn by implication from uncontrolling cases. Moreover, since the petitioner seeks to establish a principle that the cases do not expressly foreclose, it is appropriate to give him the opportunity to make his argument to an appellate court. Accordingly, the application for a certificate of appealability as to the second issue is granted.

In his application, the petitioner proposes a third issue — whether this Court correctly construed what constitutes a "capital" case for purposes of any federal constitutional rule. That question is not a separate issue, but rather part of the analysis of the theory offered in support of the second claim.

Therefore, it is ORDERED, that a certificate of appealability shall issue with respect to the following issue:

Whether the Confrontation Clause of the Sixth Amendment and/or the Due Process Clause of the Fourteenth Amendment were violated by allowing the defendant to waive his presence at all stages of his capital jury trial, except for jury selection and sentencing.