Faulk v. Medeiros

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

KENNETH FAULK, )

)

Petitioner, )

v. ) CIVIL ACTION

) NO. 16-11893-WGY

SEAN MEDEIROS, )

)

Respondent. )

___________________________________)

YOUNG, D.J. July 27, 2018

MEMORANDUM AND ORDER

I. INTRODUCTION

Petitioner Kenneth Faulk (“Faulk”) is a state prisoner who

was convicted of murder in the second degree and carrying a

firearm without a license in the Massachusetts Superior Court

sitting in and for the County of Plymouth on November 18, 2010.

On September 26, 2016, Faulk filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 challenging these

convictions. Respondent Sean Medeiros (“Medeiros”) opposes the

petition.

For the reasons discussed below, this Court DENIES Faulk’s

habeas corpus petition.

II. BACKGROUND

Faulk was indicted for murder in the first degree and for

carrying a firearm without a license. Pet’r’s Mem. Supp. Pet.

Habeas Corpus Relief (“Pet’r’s Mem.”) 2, ECF No. 30. On

November 18, 2010, after a jury trial in the Massachusetts

Superior Court, the jury found the petitioner guilty of the

lesser included offense of murder in the second degree and

guilty of the firearms charge. Id.

The Massachusetts Appeals Court summarized the evidence

introduced at Faulk’s trial as follows:

As shown by videotape surveillance footage obtained from a

camera system installed at the scene, on April 30, 2007,

[Faulk] entered 33 Dover Street, Brockton, with the victim,

Derrick Wilson, right behind him. [Faulk] stopped, turned,

and appeared to speak to the victim. The victim then

followed the defendant up a set of stairs. Two minutes

later, the victim slid feet first down the stairs, and lay

at the foot of the stairs, struggling. Within seconds,

[Faulk] came down the stairs, stepped over the victim, and

left the building. A few minutes later, [Faulk] returned

with a female companion, and kicked the victim's foot and

his head.

According to the medical examiner, the victim died from a

gunshot wound to the chest. It appears from the video

footage that no one entered or left through the second-

floor door at the time of the incident. There was evidence

that the third floor of the building was locked. When

[Faulk] initially spoke with police, he told them that he

had not entered the building with the victim. After being

shown still images from the video, he acknowledged his

presence but claimed not to know if he had heard gunshots,

or if there had been any kind of fight or struggle on the

stairs. He said that he kicked the victim to wake him up.

A cigarette butt at the second-floor landing was linked to

[Faulk] by deoxyribonucleic acid (DNA) evidence, and a

projectile found in the wall at the top of the second-floor

landing was linked to the victim by DNA evidence. However,

no weapon or shell casings were recovered. Strands of

“Mardis Gras” beads worn by the victim were broken, and

beads were found scattered -- including one at the top of

the landing -- suggesting a struggle.

Commonwealth v. Faulk, No. 11-P-1663, 2016 WL 767584, at *1

(Mass. App. Ct. Feb. 29, 2016).

The trial judge sentenced Faulk to life on the murder

charge and four to five years on the firearm charge to run

concurrent with the sentence imposed on the murder charge.

Pet’r’s Mem. 2. The petitioner timely appealed on November 23,

2010.1 Id. Faulk filed a motion for a new trial, which was

denied without a hearing on June 6, 2014. Id. On June 13,

2014, Faulk timely appealed the order denying his motion for a

new trial and the Appeals Court affirmed the judgment of his

convictions and the denial of his motion for a new trial. Id.

In March 2016, Faulk filed an application for leave to obtain

further appellate review (“ALOFAR”) in the Massachusetts Supreme

Judicial Court. Pet’r’s Mem. 3. The Supreme Judicial Court

denied Faulk’s ALOFAR on March 31, 2016. Id.

On September 26, 2016, Faulk filed a petition for a writ of

habeas corpus in this Court pursuant to 28 U.S.C. § 2254; Pet.

Writ Habeas Corpus (“Pet’r’s Pet.”), ECF No. 1. On May 1, 2017,

1 The Massachusetts Appeals Court entered the case on

September 23, 2011. Pet’r’s Mem. 2.

Faulk moved for leave to amend the petition, seeking to add two

more claims, and Medeiros opposed the motion. Pet’r’s Mot. Am.,

ECF No. 27; Resp’t’s Opp’n Mot. Am., ECF No. 28. On May 15,

2017, this Court denied Faulk’s motion to amend, explaining that

allowing the motion would render the petition a mixed petition

subject to dismissal. Electronic Order, ECF No. 29. On May 22,

2017, Faulk filed a memorandum of law in support of his

petition, Pet’r’s Mem., which Medeiros opposed, Resp’t’s Mem.

Opp’n Pet. Habeas Corpus (“Resp’t’s Opp’n”), ECF No. 35.

II. STANDARD OF REVIEW

The standard of review of habeas corpus petitions is set

forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Harrington

v. Richter, 562 U.S. 86, 97 (2011). Under this standard, a

federal court may not grant a writ of habeas corpus unless the

underlying state court adjudication resulted in a decision that

either “(1) ‘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.’” Brown v.

Ruane, 630 F.3d 62, 66–67 (1st Cir. 2011) (quoting 28 U.S.C. §

2254(d)(1)–(2)).

A state court[’s] decision is “contrary to”

clearly established federal law . . . if it

“contradicts the governing law set forth in the

Supreme Court’s cases or confronts a set of facts that

are materially indistinguishable from a decision of

the Supreme Court and nevertheless arrives at a result

different from its precedent.”

Id. at 67 (quoting John v. Russo, 561 F.3d 88, 96 (1st Cir.

2009)). A state court’s decision involves an unreasonable

application of clearly established federal law “if the state

court ‘identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.’” Id. (quoting

Williams v. Taylor, 529 U.S. 362, 413 (2000)) (alteration in

original).

Under 28 U.S.C. § 2254(e)(1), “‘a determination of a

factual issue made by a State court shall be presumed to be

correct.’ The petitioner bears the burden of overcoming that

presumption by providing ‘clear and convincing evidence.’” Teti

v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (quoting 28 U.S.C. §

2254(e)(1)). “The ‘presumption of correctness is equally

applicable when a state appellate court, as opposed to a state

trial court, makes the finding of fact.’” Id. at 58 (quoting

Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003)).

The Supreme Court in Chapman v. California, 386 U.S. 18

(1967), articulated the constitutional harmless error standard,

which provides that, on direct appellate review, an error at

trial affecting the defendant’s constitutional rights will be

deemed harmless only if it can be shown to be harmless beyond a

reasonable doubt. Id. at 24. In Brecht v. Abrahamson, 507 U.S.

619 (1993), the Court held that a federal court on collateral

review of a state appellate court’s application of Chapman

should not apply the same harmless error standard but instead

use an “actual prejudice” standard. Id. at 637. Specifically,

as the Court explained in Brecht, a habeas petitioner in such a

case must show that the error “had substantial and injurious

effect or influence in determining the jury's verdict.” Id.

(quoting Kotteakos v. Unites States, 328 U.S. 750, 776 (1946)).

In Mitchell v. Esparza, 540 U.S. 12 (2003), the Supreme

Court explained that “when a state court determines that a

constitutional violation is harmless [under Chapman], a federal

court may not award habeas relief under § 2254 unless the

harmlessness determination itself was unreasonable.” Fry v.

Pliler, 551 U.S. 112, 119 (2007) (describing Mitchell).

In Fry v. Pliler, the Court held that the Brecht standard

“obviously subsumes” the Chapman standard, and federal courts

need not formally apply both tests; the Brecht test alone is

sufficient. Id. at 120. As the First Circuit has noted,

“[t]here is clear logic to that position: if an error had a

‘substantial and injurious’ effect on a jury's verdict (Brecht

standard), then it is necessarily unreasonable to conclude that

the error was harmless beyond a reasonable doubt (Esparza

standard).” Connolly v. Roden, 752 F.3d 505, 511 (1st Cir.

2014).

Applying these principles to the instant case compels the

conclusion that Faulk’s petition must be DENIED.

III. ANALYSIS

Faulk’s petition raises the following four grounds: (i) a

substantial risk of miscarriage of justice was created by the

prosecutor’s closing argument; (ii) the trial judge committed

palpable error by limiting evidence of the decedent’s state of

mind; (iii) the motion judge erroneously denied Faulk’s motion

to suppress; and (iv) the error that occurred at trial were not

harmless. Pet’r’s Pet. 2. Faulk also attempts to add two more

grounds in his memorandum of law in support of his habeas

petition: (v) the trial judge failed to give a proper Bowden

instruction, and (vi) actual innocence. Pet’r’s Mem. 31-35.

Medeiros opposes Faulk’s petition, arguing that (i) Faulk’s

petition is barred based on an adequate and independent state

law ground, (ii) the Massachusetts state courts reasonably

rejected Faulk’s claims of constitutional error, (iii) Faulk

improperly expanded the scope of his habeas petition through his

memorandum supporting his petition, and (iv) Faulk’s claim that

the errors that occurred at trial were not harmless is not

exhausted. Resp’t’s Opp’n 9-26.

A. Ground I

Faulk argues that the prosecutor’s closing argument

“personally attacked the defendant, defense counsel, and the

theory of the defendant’s defense, while unnecessarily invoking

sympathy and passion in the jury.” Pet’r’s Mem. 7. He claims

that these arguments created a substantial risk of a miscarriage

of justice and violated his right to due process under the

Fourteenth Amendment. Id. He also argues that the defense

counsel’s failure to object to the closing argument violated his

Sixth Amendment rights. Id. Medeiros argues that this claim is

barred because the state court rejected it based on an adequate

and independent state law ground. Resp’t’s Opp’n 9-10.

The Supreme Court has applied the independent and adequate

state ground doctrine “in deciding whether federal district

courts should address the claims of state prisoners in habeas

corpus actions.” Coleman v. Thompson, 501 U.S. 722, 729 (1991).

“The doctrine applies to bar federal habeas when a state court

declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement.”

Id. at 729-30. Such judgments “rest[] on independent and

adequate state procedural grounds.” Id. at 730. To overcome

the bar to federal review in such cases, a petitioner must

“demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.” Id. at 750.

Here, the Appeals Court noted that Faulk did not object to

the prosecutor’s closing argument, and in accordance with

established Massachusetts law, it limited itself to determining

whether there was a substantial risk of miscarriage of justice.

Faulk, 2016 WL 767584 at *2; see Commonwealth v. Harrington, 379

Mass. 446, 449 (1980) (“The trial judge’s discretionary power to

give relief from [a waived objection] . . . should be exercised

only in those extraordinary cases where, upon sober reflection,

it appears that a miscarriage of justice might otherwise

result.”). In concluding that there was no substantial risk of

miscarriage of justice, the Appeals Court explained that the

judge had instructed the jury that closing arguments were not

evidence and that the jury must not be swayed by prejudice or

sympathy, and it cited the strength of the evidence against

Faulk as well as the jury’s rejection of the first-degree murder

charge. Faulk, 2016 WL 767584 at *2; see Commonwealth v.

McLaughlin, 431 Mass. 506, 511-12 (2000); Commonwealth v.

Boyajian, 68 Mass. App. Ct. 866, 870 (2007).

Because the Appeals Court based its decision on Faulk’s

failure to object at trial, Faulk’s claim is barred unless he

can demonstrate cause and actual prejudice, or that failure to

consider the claim will result in a fundamental miscarriage of

justice. See Burks v. Dubois, 55 F.3d 712, 716 & n.2 (1st Cir.

1995). He demonstrates neither.

“To excuse a procedural default, a petitioner’s cause must

relate to an objective factor, external to the defense, that

thwarted (or at least substantially obstructed) the efforts of

the defendant or his counsel to obey the state’s procedural

rule.” Burks, 55 F.3d at 716-17. Faulk does not allege the

existence of any such factor. To the extent he is relying on

attorney error, the First Circuit has noted that mere attorney

error is insufficient to constitute cause, if the error does not

amount to ineffective assistance “in a constitutionally

significant sense.” Id. at 717. Faulk has not claimed

ineffective assistance of counsel and has not otherwise shown

cause rising to that level.

Because Faulk has not shown cause, the Court need not

consider whether he has shown actual prejudice; rather, it moves

on to the miscarriage of justice inquiry. See e.g., id. at 717-

18. The Supreme Court has explained that “for the most part,

‘victims of a fundamental miscarriage of justice will meet the

cause-and-prejudice standard.’” Murray v. Carrier, 477 U.S.

478, 495–96 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135

(1982)). It is only the “extraordinary case, where a

constitutional violation has probably resulted in the conviction

of one who is actually innocent,” that merits the grant of

habeas relief absent a showing of cause. Id. at 496. Faulk has

not met this high bar to relief. Though he argues that the

prosecutor’s comments unfairly took advantage of the fact that

evidence of the victim’s mental health had been excluded,

Pet’r’s Mem. 10, given the strength of the evidence against him,

this Court is unpersuaded that a reasonable juror would not have

convicted him but for the prosecutor’s comments. See Burks, 55

F.3d at 718 (“[P]etitioner's recreation of what transpired in

the state trial court shows, at most, that there was a

legitimate jury question as to his guilt, and that the

prosecutor placed her thumb on the scales of justice at one

point. This is not enough to qualify for extraordinary relief.

. . .”).

Because Faulk failed to show either cause or a fundamental

miscarriage of justice and, accordingly, cannot overcome the

procedural default rule, Faulk’s claim that the prosecutor’s

closing argument violates his constitutional rights is barred.

B. Ground II

Faulk argues that the trial judge “committed palpable

error” and violated his rights under the Fifth, Sixth, and

Fourteenth Amendments by excluding evidence of the victim’s

state of mind. Pet’r’s Mem. 14-29.

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), a petitioner may obtain habeas relief on a claim

adjudicated on the merits in state court only if “the decision

was contrary to clearly established federal law as determined by

the Supreme Court of the United States, or involved an

unreasonable application of such definitive federal law, or was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” Cooper

v. Bergeron, 778 F.3d 294, 299 (1st Cir. 2015) (citing 28 U.S.C.

§ 2254(d)). A decision is “contrary” to clearly established law

if the state court “‘applies a rule that contradicts the

governing law set forth’ by the Supreme Court or ‘confronts a

set of facts that are materially indistinguishable from a

decision of [the Supreme Court] and nevertheless arrives at a

result different from [its] precedent.’” Gomes v. Brady, 564

F.3d 532, 537 (1st Cir. 2009) (quoting Williams v. Taylor, 529

U.S. 362, 405-06 (2000)) (alteration in original). A state

court unreasonably applies federal law when it “correctly

identifies the governing legal principles, but (i) applies those

principles to the facts of the case in an objectively

unreasonable manner; (ii) unreasonably extends clearly

established legal principles to a new context where they should

not apply; or (iii) unreasonably refuses to extend established

principles to a new context where they should apply.” Id.

(quoting Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007)).

Federal courts are to “presume that the state court’s findings

of fact are correct,” Sleeper, 510 F.3d at 38; a petitioner “may

defeat the presumption of correctness only with clear and

convincing evidence to the contrary.” Id. (citing 28 U.S.C. §

2254(e)(1)).

At his trial, Faulk sought to introduce various medical

records showing that the victim suffered from mental illness, as

well as expert testimony on the records. Faulk, 2016 WL 767584

at *1. Faulk also sought to elicit testimony from a police

officer who had been told that the victim had an argument with

his ex-girlfriend shortly before his death. Id. at *2. The

trial judge allowed a “limited number” of the medical records

and the expert’s testimony, but excluded the police officer’s

testimony on the basis of hearsay. Id. at *1-2. Faulk now

argues that he should have been permitted to introduce more of

the medical records, his expert should have been granted more

time to review the records before testifying, and the hearsay

testimony was wrongfully excluded. Pet’r’s Mem. 14-29. He

raised these claims to the Appeals Court in his appeal from his

convictions and motion for a new trial, and the Appeals Court

rejected both claims. Id. In doing so, it adjudicated the

claims on their merits and thus its holding is due AEDPA

deference. See e.g., Harrington v. Richter, 562 U.S. 86, 98-99

(2011); Buckman v. Roden, No. 13-CV-11413-IT, 2015 WL 1206348,

at *3 (D. Mass. Mar. 17, 2015) (Talwani, J.).

While “the Constitution guarantees criminal defendants ‘a

meaningful opportunity to present a complete defense,’” Crane v.

Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.

Trombetta, 467 U.S. 479, 485 (1984)), that right “is subject to

reasonable restrictions,” United States v. Scheffer, 523 U.S.

303, 308 (1998). Reasonable restrictions include “the state’s

‘legitimate interest in ensuring that reliable evidence is

presented.’” DiBenedetto v. Hall, 272 F.3d 1, 8 (1st Cir. 2001)

(quoting Scheffer, 523 U.S. at 309). “[E]videntiary exclusions

will not violate the constitution ‘so long as they are not

“arbitrary” or “disproportionate to the purposes they are

designed to serve.”’” Id. (quoting Scheffer, 523 U.S. at 308

(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987))). The

Supreme Court has explained that evidentiary exclusions are

arbitrary or disproportionate “only where it has infringed upon

a weighty interest of the accused.” Scheffer, 523 U.S. at 308.

Trial judges have “broad discretion” in making evidentiary

rulings. Leftwich v. Maloney, No. 01-10284-GAO, 2006 WL 2883346

at *4 (D. Mass. Oct. 5, 2006) (O’Toole, J.). State court trial

judges therefore have a “‘wide latitude’ to exclude evidence

that is ‘repetitive . . . , only marginally relevant’ or poses

an undue risk of ‘harassment, prejudice, [or] confusion of the

issues.’” Crane, 476 U.S. at 689-90 (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986)) (alteration in original); see

Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (“While the

Constitution thus prohibits the exclusion of defense evidence

under rules that serve no legitimate purpose or that are

disproportionate to the ends that they are asserted to promote,

well-established rules of evidence permit trial judges to

exclude evidence if its probative value is outweighed by certain

other factors such as unfair prejudice, confusion of the issues,

or potential to mislead the jury.”).

Faulk has failed to show that the Appeals Court’s decision

was contrary to or an unreasonable application of federal law,

or was based on an unreasonable determination of facts. In

rejecting Faulk’s claim that he ought have been able to

introduce more medical records, the Appeals Court recognized the

speculative nature of the evidence given “the improbability of

suicide given the circumstances of the victim’s death” and

explained that the trial judge’s decision to “[l]imit[] that

evidence to records close in time to the date of death was well

within [his] discretion.” Faulk, 2016 WL 767584 at *2. It

further explained that Faulk was not prejudiced by the trial

judge’s decision not to give the expert more time to prepare her

opinion:

Even after Dr. Shapiro had the opportunity to

review the victim’s complete records thoroughly in

preparing an affidavit supporting the defendant's new

trial motion, she could go no farther than to state

that “it is not unreasonable to hypothesize that the

decedent may have had a wish to harm or kill himself

around the time of the alleged incident.”

Id. As the Appeals Court reasonably noted, this assessment

“amounts to no more than conjecture.” Id.

The Appeals Court also reasonably rejected Faulk’s argument

that the trial judge erred by excluding the police officer’s

hearsay testimony. The Appeals Court reasoned that none of

Faulk’s three potential justifications for admission --

relevance to state of mind, the excited utterance exception, and

the residual exception recognized in the Federal Rules of

Evidence -- warranted admission of the testimony, explaining

that relevance to state of mind “does not cure the hearsay

problem,” the foundational requirements for the excited

utterance exception had not been established, and the

Massachusetts Rules of Evidence does not recognize the residual

exception. Id. Consequently, it concluded, the trial judge

“did not abuse his discretion in excluding the testimony.” Id.

Though Faulk attempts to relitigate these evidentiary rulings,

his argument is hindered by the broad discretion that trial

courts have to exclude unreliable, misleading, or unduly

prejudicial evidence. He fails to convince this Court that the

exclusion of this evidence meets the high standard of

“arbitrar[iness]” or “disproportiona[lity] to the purposes [the

evidentiary rules] are designed to serve.” Sargent v.

Bissonnette, No. CIV.A. 03-11124-RGS, 2011 WL 487779, at *10 (D.

Mass. Jan. 10, 2011) (Bowler, M.J.), report and recommendation

adopted, No. CIV.A. 03-11124-RGS, 2011 WL 486145 (D. Mass. Feb.

7, 2011) (Stearns, J.) (“As recognized by the First Circuit . .

. Supreme Court cases undoing state court convictions as

contravening the defendant’s right to present reliable,

exculpatory evidence ‘involve egregious situations “and the more

recent decisions of the Court . . . create serious doubts that

the Court is interested in carrying the doctrine beyond

egregious cases.”’” (quoting DiBenedetto, 272 F.3d at 8)).

C. Ground III

Faulk next argues that the motion judge erroneously denied

his motion to suppress the statements that he made after he

allegedly invoked his right to counsel, violating the rights

afforded him by both the Fifth Amendment of the United States

Constitution and Article Twelve of the Massachusetts Declaration

of Rights. Pet’r’s Mem. 29. He claims that after being given

his Miranda warnings when being interrogated by the police, he

responded, “What does this mean? Like am I getting arrested?

Like, can my lawyer speak or –- ” and was interrupted by a

police officer, who told him he was not under arrest. Id.

Faulk argues that this constitutes an “unequivocal invocation of

the right to counsel,” or alternatively, he suggests that the

police officer should have “at the very least . . . clarified

any ambiguity.” Id. Medeiros argues that Faulk’s asking the

police whether his lawyer could speak “is not an unambiguous

indication that he in fact wanted a lawyer or wanted to remain

silent in the absence of a lawyer.” Resp’t’s Mem. 22.

In Davis v. United States, 512 U.S. 452 (1994), the Supreme

Court held that a suspect must invoke his right to counsel

established by Miranda v. Arizona, 384 U.S. 436 (1966),

“unambiguously.” Id. at 459. “If an accused makes a statement

concerning the right to counsel ‘that is ambiguous or equivocal’

or makes no statement, the police are not required to end the

interrogation or ask questions to clarify whether the accused

wants to invoke his or her Miranda rights.” Berghuis v.

Thompkins, 560 U.S. 370, 381 (2010) (quoting Davis, 512 U.S. at

459.). If he unambiguously requests counsel, “the interrogation

must cease until an attorney is present.” Edwards v. Arizona,

451 U.S. 477, 481 (1981) (quoting Miranda, 384 U.S. at 474).

“Invocation of the Miranda right to counsel ‘requires, at a

minimum, some statement that can reasonably be construed to be

an expression of a desire for the assistance of an attorney.’”

Davis, 512 U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S.

171, 178 (1991)). “[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel,”

however, the cessation of questioning is not required. Id.

The Appeals Court determined that “[t]he motion judge was

entitled to conclude on the evidence before him (including the

videotape of the interview) that the defendant did not make an

unequivocal request for an attorney.” Faulk, 2016 WL 767584, at

⃰3. Whatever this Court might conclude were it to have

considered the matter ab initio, Faulk has not pointed to any

precedent that establishes his question rises to the level

required in Edwards, and thus he has failed to show that this

holding is contrary to or an unreasonable application of clearly

established federal law, or based on an unreasonable

determination of the facts. See Obershaw v. Lanman, 453 F.3d

56, 64-65 (1st Cir. 2006) (state court’s conclusion that

petitioner’s question, “Can I talk to a lawyer first?” was

insufficient to invoke his Miranda right to counsel was not

contrary to or unreasonable application of federal law).

D. Ground IV

Faulk’s fourth claim is that the errors that occurred at

trial –- specifically, the exclusions of the state of mind

evidence -- were not harmless. Pet’r’s Mem. 30.2 He argues that

far from being overwhelming, the evidence against him “rested

exclusively on conjecture and surmise,” and consequently the

2 Pet’r’s Mem. Erroneously repeats page 30. In this

instance, Faulk cites to the second of the two.

errors committed at trial “made a real difference in the

outcome.” Id.

Harmlessness, however, is relevant only where a court has

concluded that a constitutional error has in fact occurred. See

e.g., United States v. Pridgen, 518 F.3d 87, 91 (1st Cir. 2008)

(“We therefore conclude that the district court erred . . . . We

now must determine if the error was harmless.”). This Court has

ruled that the Appeals Court was reasonable to uphold the

exclusion of the evidence concerning the victim’s mental health

and the victim’s argument with his ex-girlfriend, see supra, and

thus no constitutional error occurred. This claim, which

presumes the existence of a constitutional error, accordingly

must fail.3

3 Medeiros argues that this claim has not been exhausted

because Faulk did not present it in his ALOFAR to the

Massachusetts Supreme Judicial Court. Resp’t’s Mem. 25.

Indeed, a habeas petitioner “must have ‘fairly presented’ to the

state courts the ‘substance’ of his federal habeas corpus claim”

to satisfy the exhaustion requirement. Anderson v. Harless, 459

U.S. 4, 6 (1982) (quoting Picard v. Connor, 404 U.S. 270, 275,

277-78 (1971)). While it appears that Faulk did not raise

harmlessness as a standalone claim in his ALOFAR, see Appl.

Further Appellate Review, Resp’t’s Supp. Ans., Ex. G, ECF No.

18, his harmlessness claim stems from the same alleged

violations of the Fifth, Sixth, and Fourteenth Amendments that

he asserts in his second claim, which was presented in the

ALOFAR. Given that the harmlessness inquiry is part and parcel

of the analysis of whether a petitioner is to receive relief for

such a constitutional violation, this Court concludes that the

harmlessness issue was “fairly presented.”

E. Grounds V and VI

In his memorandum to the Court, Faulk adds two grounds to

his argument: he argues that the trial judge’s failure to give

a proper Bowden instruction violated his right to due process of

law, and he asserts actual innocence. Pet’r’s Mem. 31-35.

Medeiros argues that this Court ought disregard these claims

because they were not presented in his original petition for

habeas relief. Resp’t’s Mem. 22. This Court agrees. These two

claims are identical to those Faulk tried to add to his petition

through his motion to amend, see Pet’r’s Mot. Leave Am. 4-7,

which this Court denied. As it then explained, because these

claims had not been exhausted,4 allowing the addition of the

claims would render Faulk’s petition a mixed petition subject to

dismissal. Order, ECF No. 29; see Rose v. Lundy, 455 U.S. 509,

522 (1982). Because “[i]t is the petition for a writ of habeas

corpus, not subsequently filed memorandum, which defines the

claims for habeas relief,” Smiley v. Maloney, No. CIV.A. 01-

11648-GAO, 2003 WL 23327540, at *16 n.39 (D. Mass. Oct. 31,

2003) (O’Toole, J.), and any claims not in the petition are

4 Faulk did not present either of these two claims in his

ALOFAR to the Massachusetts Supreme Judicial Court. See Appl.

Further Appellate Review, Resp’t’s Supp. Ans., Ex. G.

Consequently, they are unexhausted and he is barred from raising

them in a federal habeas proceeding. See Baldwin v. Reese, 541

U.S. 27, 32 (2004); Josselyn v. Dennehy, 475 F.3d 1, 3-4 (1st

Cir. 2007); Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820-23

(1st Cir. 1988).

waived, see Logan v. Gelb, 790 F.3d 65, 70 (1st Cir. 2015), this

Court will not consider these two additional claims here. See

also Fencher v. Roden, No. CIV.A. 13-11937-RGS, 2015 WL 4111329,

at *8 (D. Mass. July 8, 2015) (Stearns, J.) (holding that

petitioner’s new grounds for relief presented for the first time

in his memorandum were barred because they were not included in

his habeas petition).

IV. CONCLUSION

For the foregoing reasons, Faulk’s petition for writ of

habeas corpus, ECF No. 1, is DENIED.

SO ORDERED.

_/s/ William G. Young_

WILLIAM G. YOUNG

DISTRICT JUDGE