Jordan v. Reilly

• Court: Court of Appeals for the First Circuit
• Decided: November 14, 2006
• Docket: 06-1321
• Status: Published

Opinion

Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 06-1321

KENYATTI JORDAN,

Petitioner, Appellant,

v.

THOMAS REILLY, Attorney General

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before Boudin, Chief Judge, Torruella, Circuit Judge, and Schwarzer,* Senior District Judge.

Robert L. Sheketoff, for appellant. Maura D. McLaughlin, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

November 14, 2006

* Of the Northern District of California, sitting by designation. SCHWARZER, Senior District Judge. Kenyatti Jordan appeals the

denial of his habeas corpus petition. In his petition, Jordan

claimed that (1) incriminating statements he made to police were

subject to a proffer agreement and therefore admitted in error or,

in the alternative, were given involuntarily due to deception, and

(2) the restrictions placed by the state trial court on his

questioning of two witnesses violated his constitutional rights.

The district court denied the petition; as Jordan has not shown

that the state court’s decision was contrary to or an unreasonable

application of federal law, or based on an unreasonable

determination of the facts, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On February 21, 1994, Joseph Dozier was shot and killed in

Boston, Massachusetts. Although police suspected that Kenyatti

Jordan was involved in the shooting, they did not file any charges

at that time. In 1996, while on probation for unrelated crimes,

Jordan worked as an informant for various state and federal

agencies. Due to unrelated arrests, Jordan was scheduled to have

his probation revoked in early 1997. In an effort to retain

Jordan’s assistance, federal agents contacted the state police and

offered Jordan’s aid in investigating the Dozier murder in exchange

for intervention in the probation revocation hearing.

On January 9, 1997, a meeting was held at the United States

Attorney’s office in Boston. The participants were Jordan, two

-2- Boston police detectives, Herbert Spellman and Paul Joyce, two

federal agents, Steve Mitchell and Domenic Colameta, and Assistant

United States Attorney George Vien. Vien prepared a proffer letter

for Jordan, which provided that the U.S. Attorney would not use any

truthful statements that Jordan made against him but could conduct

further investigation based on those statements. The Boston

detectives did not say anything about the letter, and the state

trial judge found that they believed the letter had no effect on

state court proceedings.

The two detectives then took Jordan to a separate room to be

interviewed, telling the federal agents that they could not

participate. There, Detective Spellman told Jordan that there

would be no promises about the interview, and that anything Jordan

said would be relayed to the district attorney. Spellman then

Mirandized Jordan, whereupon Jordan left the room to talk to the

federal agents about the lack of immunity. Mitchell went into the

interview room and spoke to Spellman, who told Mitchell that only

the district attorney could grant immunity. Mitchell then left the

room and told Jordan to go back in and tell the truth. On

returning to the interview room, Jordan told Spellman that he had

arrived at and fled the scene of the Dozier murder with Antonio

Jones, who was another suspect in the Dozier murder, but that Jones

had shot Dozier while Jordan remained far away.

-3- During two subsequent interviews with the detectives, at each

of which Jordan was given Miranda warnings, Jordan changed his

story, admitting that he stood next to Jones during the shooting.

Based on this admission and the observations of an eyewitness who

saw two men stand side by side and both shoot Dozier, Jordan was

arrested and charged with Dozier’s murder.

Jordan moved to suppress all three sets of his statements to

police, arguing that the proffer letter applied to the interview

with the Boston detectives, or in the alternative, that because of

deception on the part of the detectives, those statements were

given under duress and involuntary. The trial judge denied the

motion, finding, among other things, that the interview was non-

custodial and non-coercive, that Jordan was fully aware of his

Miranda rights, was alert and lucid, and knew the letter did not

provide protection against the use in state court of anything he

might say at the interview. The judge concluded that Jordan’s

statement to the detectives was a “product of his free will and

rational intellect and was voluntary.”

At trial, Jordan sought to demonstrate that the Boston and

federal investigators acted purposefully to deceive him into making

incriminating statements. During his cross-examination of

Detective Spellman, Jordan asked, “[w]as it your concern that in

the privacy of this meeting when you started to discuss Miranda

issues that [the Federal agents] might object to Jordan’s

-4- testimony?” The prosecution objected to the question, and the

trial court sustained the objection. On direct examination, Agent

Mitchell testified about his conversation with the detectives

regarding Jordan’s lack of immunity. The prosecution objected, and

the trial court struck the answer. A jury found Jordan guilty of

first degree murder, based on premeditation and extreme atrocity or

cruelty, and unlawful possession of a firearm.

On appeal, the Massachusetts Supreme Judicial Court (SJC)

affirmed the conviction. It upheld the denial of the motion to

suppress, holding that the trial judge’s factual findings were

supported by the evidence and consistent with prior case law. The

court also found no abuse of discretion in the trial court’s

exclusion of testimony. The court held that the question posed to

Spellman was cumulative and only marginally relevant, and that

Jordan was able to extensively question Spellman regarding

potential bias. Similarly, it held that Mitchell’s testimony was

cumulative regarding voluntariness, and the conversation in

question was never relayed to Jordan.

Jordan then filed a petition for writ of habeas corpus in the

district court. Though troubled by the facts, the court denied the

petition in a careful and detailed ruling, concluding that while

there were two plausible versions of the facts, the evidence was

sufficient to affirm the version adopted by the state courts, from

-5- which one could reasonably conclude that Jordan’s waiver was made

knowingly and voluntarily.

LEGAL STANDARD

This court reviews a district court’s denial of a petition for

habeas corpus de novo. Obershaw v. Lanman, 453 F.3d 56, 59 (1st

Cir. 2006), rehearing denied (1st Cir. July 26, 2006). Because

Jordan’s petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.

§ 2254, the district court was correct in applying that Act. Under

AEDPA, a federal court can grant habeas relief only where a state

court adjudication

(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) . . . 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)(1)-(2). The state court’s factual

determinations are entitled to a presumption of correctness, which

must be rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); see also Obershaw, 453 F.3d at 59.

DISCUSSION

Jordan’s principal argument is that the Boston detectives were

bound by the proffer letter given by the federal prosecutor. The

proffer agreement had been made before Detective Spellman

-6- questioned Jordan. Jordan argues that, because states are bound

by federal law, the federal prosecutor’s promise of use immunity is

binding on the state authorities. For support, he cites Murphy v.

Waterfront Comm’n, 378 U.S. 52 (1964). Murphy held in substance

that if a witness is given state immunity and compelled to give

potentially incriminating testimony in state proceedings, he must

likewise be immunized from use of that testimony in federal

proceedings. Id. at 79. But Murphy gives no comfort to Jordan.

Jordan was not under compulsion to testify in either jurisdiction.

Thus his claim of being whipsawed is without substance. Even

assuming an argument for extending Murphy could be made in this

case, the standard of review contained in AEDPA makes this argument

hopeless.

The second string to Jordan’s bow is his contention that his

statements to the detectives could not have been found to have been

voluntarily made. That is because, according to Jordan, he

reasonably believed that the assurance from the assistant United

States attorney that anything he said could not be used against him

carried over to his interview with the Boston detectives. But here

his argument runs squarely into AEDPA. Under AEDPA, habeas relief

is precluded unless the state court adjudication 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)(2).

Moreover, a state court determination of factual issues “shall be

-7- presumed to be correct” unless petitioner rebuts the “presumption

of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). Jordan has offered no evidence that the state

court’s determination was unreasonable, much less clear and

convincing evidence that the court’s factual finding of

voluntariness was incorrect.

Finally, Jordan contends that he was denied due process when

the trial court restricted his cross-examination of Detective

Spellman, and struck one of Agent Mitchell’s statements on direct

examination.

The SJC held that the trial court’s restriction of Spellman’s

cross examination was not error. Jordan argues that this holding

is an unreasonable application of Supreme Court law as stated in

Washington v. Texas, 388 U.S. 14 (1967). But this is not a case

where the court’s ruling “significantly undermined fundamental

elements of the defendant’s defense.” United States v. Scheffer,

523 U.S. 303, 315 (1998) (citing Washington, 388 U.S. at 23), or

barred all inquiry into an area of possible bias or motive. See

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Rather, as the

SJC found, at trial Jordan was able to cross-examine Spellman

extensively. The objection to a single question of doubtful

relevance did not implicate Jordan’s constitutional rights. See

also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)

(“[T]he Confrontation Clause guarantees an opportunity for

-8- effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense

might wish.”).

With respect to the Mitchell testimony, the SJC found that the

statements at issue were not made in Jordan’s presence or conveyed

to him. Thus, they had no bearing on the voluntariness of Jordan’s

statements. The SJC determined that the trial judge did not abuse

his discretion in striking the testimony, and Jordan has not

demonstrated that his due process rights were violated.

Affirmed.

-9-