Preview:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

JOSEPH FRONGILLO, Petitioner, v. LUIS SPENCER, Respondent. GERTNER, D.J.

) ) ) ) ) ) )

Civil Action No. 08cv10802-NG

MEMORANDUM AND ORDER July 19, 2011 I. INTRODUCTION Joseph Frongillo was convicted in Massachusetts State Court for armed assault with attempt to murder, assault and battery by means of a dangerous weapon, possession of a firearm without a license, two counts of possession of a firearm without a Firearms Identification ("FID") card and possession of ammunition without an FID card. On Frongillo's direct appeal, the Massachusetts Appeals Court ordered judgments of acquittal for Frongillo on the charges of possessing a firearm and ammunition without an FID card while also affirming his other convictions. Frongillo filed a habeas corpus petition, claiming his state court conviction was unconstitutional under federal law as his "trial and appellate counsels' behavior fell below an objective standard constituting ineffective assistance of counsel on several grounds."1
1

See Mem. of Law Supporting Pet'r's Pet. Writ for a Habeas Corpus (document #13). Frongillo's Mem. of Law in Supp. of His Pet. is largely incomprehensible. Based on a careful reading of his petition and memorandum of law in support of his petition, it has been construed that Grounds One through Four of his Petition are claims of ineffective assistance of counsel. Further, because the specific bases for the ineffective claims are unclear, this memo has addressed only the ineffective claims raised by Frongillo in state court. In addition to the claims raised in Frongillo's petition, Frongillo's Mem. of Law in Supp. of his Pet. raises three additional claims, which are contingent upon his claims for ineffective assistance of counsel. In other words,

Specifically, Frongillo asserts that his trial counsel rendered ineffective assistance by (1) failing to move the court to sever extraneous firearm and ammunition charges and/or (2) failing to move the court to suppress extraneous firearm and ammunition evidence; and (3) failing to properly object to Detective Goodwin's testimony regarding Frongillo's unrelated arrest for possession of cocaine. Frongillo's petition must ultimately fail for want of evidence of his lawyer's ineffectiveness. In addition, even if he could make that showing, the petition must still fail as he is unable to offer sufficient evidence as to prejudice. II. BACKGROUND2 On May 23, 2001, Joseph Frongillo ("Frongillo") and Ronald Cavanaugh ("Cavanaugh") were at Zeke's Lounge ("Zeke's"), a bar in Revere, Massachusetts. Cavanaugh and Frongillo were acquainted, but were not friends. SA-II3 B: 78. While at Zeke's, Cavanaugh approached Frongillo to complain about the quality of cocaine he had previously purchased from a third party who had allegedly originally received the cocaine from Frongillo. SA-II B: 80. Frongillo responded by waving a black handgun at Cavanaugh. SA-II B: 81-83. As the argument escalated, the bouncers asked Cavanaugh to leave and escorted him from the bar. Through the window of the bar, Cavanaugh and Frongillo exchanged indecent gestures; Frongillo continued to wave the gun.

the additional claims are without merit if Frongillo is unable to show ineffective assistance of counsel.
2 This recitation of the evidence and testimony adduced at Frongillo's trial largely follows the Massachusetts Appeals Court's presentation of the facts in Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677 (2006) [hereinafter Frongillo I] and Commonwealth v. Frongillo (No. 2), 66 Mass. App. Ct. 1115 (2006) [hereinafter Frongillo II]. We clarify certain facts by citing the trial transcripts, excerpts of which are on file with this Court. 3

Supplemental Answer, which contains trial transcripts, hereinafter referred to as "SA-[Volume]." -2-

Cavanaugh then went to B.K.'s Lounge ("B.K.'s"), another bar nearby. Approximately 30 minutes later, Frongillo and another man, Ronald Stevens ("Stevens") came into B.K.'s. Frongillo approached Cavanaugh and asked him to come outside so they could talk. While outside, Frongillo apologized and asked Cavanaugh to shake his hand. Cavanaugh refused and turned to walk away. As Cavanaugh was walking away, he was shot in the back. SA-II B: 110113. Cavanaugh turned around, saw Frongillo holding a gun, and fell into him. Cavanaugh then saw Frongillo fire the gun a second time, now shooting Cavanaugh in the left thigh. Cavanaugh fell backwards onto the ground. While on the ground, Cavanaugh looked up at Frongillo, who still had the gun in his hand. SA-II B: 114-117. After Frongillo fired a third shot, Stevens pushed Frongillo out of the way; they both ran from the scene. Michael Tsoukalas ("Tsoukalas"), a Massachusetts Bay Transportation Authority ("MBTA") coin collector at the Revere Beach train station testified that he saw Frongillo and Stevens "ganging up" on Cavanaugh outside of B.K.'s prior to the shooting. SA-II C: 257-258. After hearing gun shots, Tsoukalas saw Frongillo and Stevens running down a side street. SA-II C: 269. Tsoukalas then saw Cavanaugh bleeding in the road, asking for help. Tsoukalas informed a nearby State Trooper of Cavanaugh's condition. SA-II C: 271. Cavanaugh told the State Trooper that Joseph Frongillo shot him. SA-II B: 120. Detective Brian Goodwin ("Goodwin") was assigned to investigate the case. As a result of the investigation, the police went to an apartment located at 428 Revere Street in Winthrop, looking for Frongillo and any evidence relating to the shooting. Lisa Carrozza ("Carrozza"), who was renting the Winthrop apartment and was Frongillo's fianc

Download 29853.pdf

Massachusetts Law