Evicci v. Maloney

United States Court of Appeals
For the First Circuit

No. 03-1964

WILFRED H. EVICCI,

Petitioner-Appellant,

v.

MICHAEL T. MALONEY, COMMISSIONER OF THE
MASSACHUSETTS DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Dyk* and Howard,
Circuit Judges.

David Rossman was on brief for petitioner-appellant.
Eva M. Badway, with whom Thomas F. Reilly was on brief
for respondent-appellee.

October 25, 2004

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. This is a federal habeas case in

which the petitioner claims ineffective assistance of counsel. The

petitioner was convicted of aggravated rape in the Massachusetts

state courts. He claims that his counsel was ineffective because

counsel failed to raise a defense that the petitioner was likely

innocent because the victim had chlamydia, while the petitioner did

not contract it after the alleged rape. We conclude that

petitioner has not met his burden of showing a reasonable

probability that the jury would have acquitted on the rape charge

if the evidence had been presented, and therefore affirm the

district court’s dismissal of the petition.

I

On September 29, 1995, the petitioner, Wilfred H. Evicci,

was indicted for aggravated rape, kidnapping, and assault and

battery. After a trial in the Massachusetts Superior Court, he was

convicted of all the charges on December 9, 1996. The

Massachusetts Appeals Court affirmed the convictions without an

opinion on February 22, 1999, Commonwealth v. Evicci, 707 N.E.2d

410 (Mass. App. Ct. 1999) (table), and the Supreme Judicial Court

denied Evicci’s application for leave to obtain further appellate

review on April 23, 1999, Commonwealth v. Evicci, 710 N.E.2d 603

(Mass. 1999) (table).

At trial, the Commonwealth’s key witness was the alleged

victim, who testified that, in the early morning of September 15,

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1995, Evicci had forced her into his van, assaulted her, forcibly

removed her clothing, performed oral sex on her, penetrated her

vagina with his penis three times, and forced his penis into her

mouth. The victim then escaped from the van, partially undressed,

shouting for help and claiming that she had been raped.

The victim’s testimony was corroborated by two residents

of a condominium complex by the parking lot in which the van was

parked. They were awakened by a voice calling, “Help! I’ve been

raped.” They saw two people struggling inside the van and heard

screaming. They witnessed the victim escaping from the van with

her pants half on, wearing only her bra, and running towards their

apartment. They offered the victim assistance, told her to enter

the apartment, called to a nearby security car, and dialed 911.

When the police arrived, the victim was transported to a

nearby hospital, where the victim was examined and found to have

abrasions and bruises on her neck and forearms and a puncture wound

to her lip. The victim was also diagnosed with chlamydia. The

police examined Evicci’s van and collected cuttings, hairs, fibers,

and articles of clothing from the van. Some of these items from

the van, including the victim’s sweatshirt, were found to have

blood and sperm cells on them. The victim’s jeans were also found

to be stained with blood and seminal fluid. Pursuant to a court

order, the police also obtained hair, blood, and saliva samples

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from Evicci on November 18, 1996, shortly before the trial began in

December 1996.

The defense at trial did not dispute that certain sex

acts had occurred in the van, but rather asserted that there had

been no penetration; that the victim had merely masturbated Evicci;

and that the conduct was consensual. Evicci alleged that the

victim was a prostitute and that she had suffered her injuries in

an altercation regarding the issue of payment. Evicci’s counsel

sought to enter into evidence the victim’s medical records, which

would have shown that she was infected with chlamydia. However,

the only ground asserted for the admission of the evidence was its

alleged relevance to the issue of whether the victim was a

prostitute. Evicci did not submit evidence that he had not become

infected with chlamydia or medical evidence related to the

likelihood that, if a rape had occurred, the defendant would have

contracted the disease. The state court refused to admit the

evidence of the victim’s chlamydia infection.

Evicci was convicted and sentenced to terms of life

imprisonment for two counts of aggravated rape (the convictions on

the other charges, including one count of aggravated rape, resulted

in lesser sentences to run concurrently with the life sentences).

On July 22, 1999, Evicci filed a habeas petition in the district

court pursuant to 28 U.S.C. § 2254. The district court dismissed

the petition on March 20, 2000, because the petitioner had not

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exhausted his remedies in state court. On September 22, 2000, this

court granted a certificate of appealability, vacated the order

dismissing the petition, and remanded the case to the district

court to consider the petitioner’s Sixth Amendment claims (1) “that

his rights under the Confrontation Clause were violated by the

trial court’s refusal to allow his attorney fully to explore drug

use on the part of the complaining witness,” and (2) that he had

received ineffective assistance of counsel because his lawyer had

“fail[ed] to formulate and act upon an internally consistent

defense strategy.” Evicci v. Comm’r of Corr., 226 F.3d 26, 27 (1st

Cir. 2000).

Upon remand, the district court appointed counsel to

represent the petitioner. On April 26, 2001, the petitioner filed

a motion for discovery seeking:

1. all records and documents pertaining to
blood, hair, saliva or any other biological
samples taken from petitioner, including
samples obtained pursuant to the court order
issued Oct. 22, 1996;

2. all records and documents pertaining to any
tests done on blood, hair, saliva or any other
biological samples taken from petitioner,
including testing of samples obtained pursuant
to the court order issued Oct. 22, 1996.

Pet’r’s Mot. for Discovery at 1. The district court denied the

motion on June 12, 2001, stating: “I decline to permit the

extraordinary step of discovery in this proceeding. I am, however,

prepared to proceed to the merits of this petition . . . on the

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assumption arguendo that the evidence would demonstrate the

petitioner was not infected with chlamydia.” Evicci v. Maloney,

No. 99-11561-DPW, slip op. at 2 (D. Mass. June 12, 2001) (“Order”).

The parties proceeded on this basis, and, on June 4, 2003, the

district court dismissed the petition. Evicci v. Maloney, No. 99-

11561-DPW (D. Mass. June 4, 2003) (“Decision”). The district court

found that, although the scientific evidence was sufficient to

establish a meaningful probability that Evicci would have been

infected with chlamydia had the encounter taken place as described

by the victim, there was no prejudice given the strength of the

Commonwealth’s case including the corroboration of the victim’s

testimony. Id., slip. op. at 38.

On July 2, 2003, the district court granted a certificate

of appealability on the ineffective assistance of counsel claim.

This appeal followed.

II

We review a district court’s denial of habeas corpus

relief without deference. Correia v. Hall, 364 F.3d 385, 387 (1st

Cir. 2004).

A

Petitioner contends that he was deprived of the effective

assistance of counsel under the standards set forth in Strickland

v. Washington, 466 U.S. 668 (1984). Strickland, in addition to

requiring a showing that counsel’s performance was deficient,

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requires a showing “that the deficient performance prejudiced the

defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

The district court determined that the petitioner had

failed to exhaust his claim in state court as required by 28 U.S.C.

§ 2254(b)(1)(A). Decision, slip op. at 27. However, the district

court held that the Massachusetts state courts would treat this

claim as procedurally defaulted as a matter of state law, which

satisfies the exhaustion requirement. Carsetti v. Maine, 932 F.2d

1007, 1010-11 (1st Cir. 1991). To excuse this procedural default

and permit federal habeas review, the petitioner must show both

cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87

(1977). To satisfy the prejudice prong, the petitioner must show

that “there is a reasonable probability that the result of the

trial would have been different.” Strickler v. Greene, 527 U.S.

263, 289 (1999) (internal quotation marks omitted); see also United

States v. Frady, 456 U.S. 152, 167-68 (1982). As this court has

previously held, the prejudice standards of Strickland and

Strickler are essentially the same. Prou v. United States, 199

F.3d 37, 49 (1st Cir. 1999) (noting that the language in Strickler

“mimics the Strickland formulation” and concluding that the two

“prejudice standards are one and the same”).

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 B

Petitioner argues that trial counsel was ineffective for

failing to point out to the jury that Evicci had not been infected

with chlamydia; that the victim was infected with chlamydia; and

that chlamydia has a 68% infection rate from a single case of

sexual contact. Petitioner contends that there is a reasonable

probability that, had this evidence been presented, the result of

the trial would have been different.

Although the question is close, we will assume, as the

district court did, that “defense counsel’s failure to press the

evidence [of chlamydia] was below the acceptable level of

professional competence.” Decision, slip op. at 34. We may also

assume that the victim had chlamydia.

As noted above, petitioner filed a motion for discovery

seeking, inter alia, “all records and documents pertaining to any

tests done on blood, hair, saliva or any other biological samples

taken from petitioner.” Pet'r's Mot. for Discovery at 1. The

discovery motion was primarily directed to the November 1996 test

taken 14 months after the alleged rape. The discovery motion was

also filed, as explained by petitioner’s counsel at oral argument,

because when a prisoner is placed in custody in a Massachusetts

correctional institution, a medical examination is done, and the

medical records at those institutions might show that petitioner

tested negative for chlamydia. The district court’s Order assumed

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“that the evidence would demonstrate the petitioner was not

infected with chlamydia.” Order, slip op. at 2. Given the scope

of the discovery request by the petitioner and the resulting Order,

we will assume that petitioner was found to be free of chlamydia

each time he was tested. The petitioner relied on two published

studies, arguing that the assumed facts (the victim’s infection and

the petitioner’s non-infection) demonstrate “a .68 probability that

petitioner did not commit the rape.” Br. of Pet’r at 19.

C

The application of the science to the present facts as

assumed remains petitioner’s burden. See Smith v. Robbins, 528

U.S. 259, 285-86 (2000) (petitioner bears burden of proving

ineffective assistance of counsel). The district court found that

the "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.” Decision, slip op.

at 36. We disagree with the district court’s reading of the record

in this respect,1 though we agree with his ultimate conclusion. We

1
See Strickland, 466 U.S. at 698 (“[T]he performance and
prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact.”); Scarpa v. Dubois, 38 F.3d 1, 9 (1st
Cir. 1994) (“[M]ixed questions of law and fact arising in section
2254 cases are ordinarily subject to de novo review.”). Even under
the clearly erroneous standard of Fed. R. Civ. P. 52(a),
considering that no witnesses were presented, our review of the
record convinces us that the district court clearly erred.

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conclude that the assumed facts are not, by themselves, sufficient

to establish a reasonable probability that the result of the trial

would have been different.

The petitioner did not submit any expert affidavit

reviewing the scientific literature; assessing the reliability of

the various studies and the circumstances of the petitioner's case;

and concluding that the combination of the victim's chlamydia and

the petitioner's lack of chlamydia infection demonstrated that he

was innocent of the rape. The two studies submitted by the

petitioner are not as supportive of petitioner’s position as he has

argued. Neither study supports petitioner’s contention that a man

has a 68% chance of contracting chlamydia from a woman in a single

episode of sexual intercourse. One of the studies deals

exclusively with the infection of women by men who had chlamydia.

See 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 (1996). The

other study relied upon by petitioner, while dealing with both the

male and female infection rate, expressly states that the “data

reflect the cumulative result of multiple exposures” and do not

pertain to the infection rate from a single exposure. Thomas C.

Quinn, et al., Epidemiologic and Microbiologic Correlates of

Chlamydia trachomatis Infection in Sexual Partnerships, 276 J. Am.

Med. Ass’n 1737, 1741 (1999). The study does not define “multiple

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exposures” nor indicate whether three acts of penetration closely

proximate in time (as was the case here) would be considered

“multiple exposures.” In any event, the study participants

reported a median of six episodes of intercourse with their

partners in the preceding 30 days, at least raising the question as

to the validity of the study’s conclusion where at most only half

that number of exposures occurred.

Moreover, the scientific authorities presented by

petitioner establish that chlamydia transmission rates are

potentially affected by a number of factors. These medical studies

were done in carefully controlled environments, screening for such

factors as the incubation period of the disease and the taking of

antibiotics (which could prevent or eliminate chlamydia infection).

See, e.g., Lin at 1707-08; see also Commonwealth v. Barresi, 705

N.E.2d 639, 640 (Mass. App. Ct. 1999) (noting expert testimony that

a person who tested positive for chlamydia "would have to have been

infected two to three weeks earlier"); The Merck Manual of

Diagnosis and Therapy 1327 (Mark H. Beers, M.D. & Robert Berkow,

M.D., eds., 17th ed. 1999) (chlamydia may be treated with

antibiotics such as azithromycin, ofloxacin, tetracycline or

doxycycline).2 Absent expert evidence, we cannot simply assume

2
While the Quinn study found that “the results were
unaffected by recent antibiotic use,” Quinn at 1741, this finding
is severely qualified because participants “who had received
specific antibiotic treatment for chlamydia in the previous month
were excluded” from the study, id. at 1738.

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that the 68% rate of transmission derived from these studies is

applicable outside of these controlled test conditions.

Significantly, for example, petitioner has presented no evidence on

whether he was treated with antibiotics before the tests were

administered.

Given the speculative quality of the assumed medical

evidence and the substantial evidence of guilt presented by the

government, detailed above, we conclude that the petitioner failed

to establish the required reasonable probability that the result of

the trial would have been different to warrant habeas relief. We

therefore need not address the question of whether petitioner has

satisfied the other requirements for habeas relief.

For the foregoing reasons, we affirm the district court’s

dismissal of the petition for a writ of habeas corpus.

It is so ordered.

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