Wadlington v. Mitchell

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

VINCENT WADLINGTON, )

)

Petitioner, )

)

v. ) Civil Action No. 15-10468-DJC

)

)

LISA MITCHELL, )

)

Respondent. )

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. January 29, 2019

I. Introduction

Petitioner Vincent Wadlington (“Wadlington”) has filed a petition seeking a writ of habeas

corpus (“Petition”) pursuant to 28 U.S.C. § 2254. D. 1. Respondent Lisa Mitchell, Superintendent

of the Massachusetts Department of Corrections, opposes the Petition on the grounds that

Wadlington’s claims either fail on the merits or are procedurally defaulted. For the reasons stated

below, the Court DENIES the Petition.

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires this Court

to review the Petition to determine whether the state court adjudication either “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established

Federal law” or “resulted in a decision that 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).

“Clearly established federal law” for the purposes of § 2254(d) “refers to the holdings, as opposed

to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.”

Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quoting Williams v. Taylor, 529 U.S. 362,

412 (2000)). State court decisions are “contrary to” clearly established Supreme Court precedent

if they either “appl[y] a rule that contradicts the governing law set forth in [Supreme Court] cases”

or “confront[] a set of facts that are materially indistinguishable from a decision of [the Supreme

Court] and nevertheless arrive[] at a result different from [Supreme Court] precedent.” Williams,

529 U.S. at 405-06. State court decisions involve an “unreasonable application” of clearly

established federal law if they “correctly identif[y] the governing legal rule but appl[y] it

unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08.

For the purposes of § 2254(d)(2), any factual determinations made by a state court are

“presumed to be correct” unless rebutted by “clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). “[A] decision adjudicated on the merits in a state court and based on a factual

determination will not be overturned on factual grounds unless objectively unreasonable in light

of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340

(2003).

III. Relevant Factual Background

Unless otherwise noted, the following facts are drawn from the Bristol Superior Court’s

rulings denying Wadlington’s suppression motions and motion for a new trial, the trial transcripts

for Wadlington’s trial and the opinion of the Supreme Judicial Court affirming Wadlington’s

convictions on appeal.

A. The Commission of the Crimes

Shortly before Christmas in 2005, Wadlington met William Fields and Leslie Cole through

a mutual acquaintance. S.A. 94, 791.1 Fields and Cole had been planning a robbery, but their

efforts were hindered because they lacked a firearm. S.A. 94. The mutual acquaintance introduced

Fields and Cole to Wadlington because she knew Wadlington possessed a gun. S.A. 791. The

mutual acquaintance knew Wadlington only as “Blue” and introduced him as such to Fields and

Cole. S.A. 94. On December 24, 2005 the three “devised a plan to rob a drug dealer’s home.”

S.A. 791. To execute this plan, they travelled in Cole’s car to Brockton, where they acquired a .22

caliber rifle, and then to a residence in New Bedford, where they acquired dark clothing to wear

during the robbery. S.A. 791. Shortly before midnight, the trio travelled to the apartment of

Christopher Busby (“Busby”) in New Bedford, which would be the target of their armed robbery.

S.A. 791. Busby was there with Rudolph Santos, Busby’s friend, when Wadlington, Cole and

Fields approached his apartment’s back door. S.A. 791. Although Busby initially denied them

entry, he eventually opened the door, at which point the three were able to force themselves inside,

after which a fight broke out. S.A. 94, 791.

Cole and Fields began to fight with Busby as Wadlington fought with Santos. S.A. 791.

Shortly after the fight began, Fields returned to Cole’s car, “drove to a nearby house where he

knew the occupants and told them to call the police because he heard gunshots.”2 S.A. 792. While

Fields was gone, Wadlington and Cole acquired the keys to the house’s cellar from Santos, despite

Busby’s effort to stop them by wounding Cole with a samurai sword. S.A. 792. One of the men

1 The Supplemental Answer (“S.A.”) was filed by manually. D. 53.

2 The Supreme Judicial Court noted that “William Fields testified that he had not heard gunshots

but told his acquaintance that he had in the hope that [the acquaintance] would notify the police,

and that the police would quickly respond and stop the fighting.” S.A. 792.

then went down to the cellar, presumably to look for drugs, but came upstairs to ask “[w]here is

it? [w]here is it?” S.A. 792; S.A. 94. Busby then recalled hearing was a gunshot. S.A. 792. Fields

eventually returned and the three men fled by foot. S.A. 792.

Police arrived at the scene shortly before 1:00 a.m., where they found Santos dead and

Busby covered in blood with a black sheath to a sword lying next to him. S.A. 792. Busby

survived the attack, but suffered from multiple puncture wounds. S.A. 792. Two days after the

robbery, Fields and Cole drove to the ocean, where they discarded the samurai sword and the

clothes Cole had worn during the crime. S.A. 792.

B. The Police Investigation

Following the crime, Trooper Scott A. Flaherty conducted a series of interviews, the results

of which he conveyed through his affidavit in support of a search warrant of the residence of

Wadlington’s girlfriend’s residence in New Bedford. S.A. 618-26. He attested to the substance

of these interviews in his affidavit. Id. Among other things, he attested in his affidavit that Fields

told him that “after formulating their plan on the evening of December 24, 2005, to commit the

robbery, he, Cole, and [Wadlington] traveled in Cole’s automobile to a home on County Street in

New Bedford that he believed was the residence of [Wadlington’s] girl friend” and retrieved the

sawed-off rifle. S.A. 795. (Later, prior to trial, Fields would assert that they had traveled to a

residence in New Bedford where Wadlington had retrieved the firearm, S.A. 795).

Wadlington spoke to officers investigating the robbery and murder on January 12, 2006,

while he was in custody at the Plymouth House of Correction for an unrelated motor vehicle

charge. S.A. 109. Before the interview, a corrections officer informed Wadlington that two police

officers wished to speak with him. S.A. 110. Further, the corrections officer told Wadlington that

he would hear his Miranda rights first and that Wadlington could speak to the officers if he wanted

to but did not have to. S.A. 110. Before speaking with the officers, Wadlington was informed of

his Miranda rights orally and through a written form. S.A. 110-11; S.A. 794. The police also

advised him of his Miranda rights, and presented Wadlington with a consent form, which included

a “fifth” Miranda warning, that provided, “[i]f you decide to answer questions, you may stop at

any time to consult with a lawyer.” S.A. 119. Wadlington signed the portion of the consent form

that indicated he had been informed of his Miranda rights but refused to sign the part of the consent

form which indicated he had not been coerced into signing it. S.A. 794-95.

Once the interview started, Wadlington repeatedly asked the officers what prompted their

visit and what they were interviewing him about. S.A. 112. Eventually, the police showed

Wadlington pictures of Busby and Santos and asked whether Wadlington knew either, to which

Wadlington responded that he did not. S.A. 112-13. An officer then explained that there had been

a drug theft which had resulted in one victim’s death and another’s injury by stab wounds. S.A.

113. He further explained that he knew that Cole, Wadlington and a third man gathered on

Christmas Eve on North Street, after which the men entered Cole’s car and drove to get the gun

and then to Hillman Street. S.A. 113. In the interview, Wadlington “denied any involvement in

the killing and denied knowing Cole.” S.A. 792-93. He claimed to have been “at home with his

girl friend,” Janelle Morales, on the night of the incident. S.A. 793. Before the interview ended,

the officers contacted Morales who would not corroborate Wadlington’s alibi, at which point

Wadlington invoked his right to stop answering questions by asking, “[c]an I please leave without

my lawyer being present?” S.A. 114.

C. Wadlington is Charged and His Pretrial and Trial Proceedings

Wadlington was indicted on March 3, 2006, on charges of first degree murder, assault with

intent to murder, assault with a dangerous weapon, armed robbery and armed home invasion. S.A.

5; S.A. 364. Wadlington moved to suppress the statements he made to police on January 12, 2006.

S.A. 108. The trial court noted that “the so-called fifth Miranda warning” in the written consent

form “improperly qualified Wadlington’s right to stop questioning at any time by tying that right

to Wadlington’s consultations with a lawyer.” S.A. 119. Wadlington conceded that he understood

his rights, but argued that his waiver of his Miranda rights was not knowing and voluntary. S.A.

119. The trial court concluded that Wadlington’s waiver was voluntary, because Wadlington

demonstrated throughout the interview that he desired to learn more about what the officers were

investigating and knew the only way to gain such knowledge was by talking to them. S.A. 120.

Thus, the trial court suppressed the statements Wadlington made after he asked to leave without

his lawyer being present, but declined to suppress the statements he made before this request. S.A.

120, 123, 793.

Wadlington also moved to suppress the evidence obtained pursuant to the execution of

search warrant on his girlfriend’s residence. He argued that there was “an insufficient showing of

probable cause that evidence of a crime would be found at the place to be searched.” S.A. 127.

The trial court denied this motion as well. S.A. 127. The court held that “[t]he affidavit here set

forth sufficient facts connecting the defendant to [this residence] and established probable cause

that evidence of the homicide would be located therein.” S.A. 130. It based this ruling on the

finding that Wadlington had been “placed at his residence the night of the crime, where he retrieved

a sawed-off rifle that was identified by Busby and Fields as being present during the robbery.”

S.A. 130. Although Wadlington’s location after the murder was unknown, the court concluded

that it was reasonable to believe that he would have returned to his home with the murder weapon,

particularly considering that the murder weapon had been retrieved from that location. S.A. 130-

31.

Before trial, Fields changed his story by stating “they had actually traveled to, and the

defendant retrieved a firearm from, a residence in Brockton,” not New Bedford as he had originally

asserted to police. S.A. 623, 795. Within a month of Fields changing his statement, the

prosecution sent notice to Wadlington’s counsel. S.A. 795; S.A. 555. The prosecution reminded

the attorney of this disclosure in March 2010, six weeks before trial, when defense counsel filed a

motion for discovery. S.A. 796; S.A. 559.

Wadlington’s jury trial began on May 10, 2010. S.A. 91. In its opening statement, among

other things, the government told the jury that blood had been collected from the scene of the crime

and from Cole’s car and that both samples matched Wadlington’s DNA profile. T. Tr. I: 73.3 The

prosecution also told the jury that analysis done on a palm print found in the cellar would trace

back to Wadlington. T. Tr. I: 73. At trial, Sergeant Kerri Gilpin, the fingerprint evidence analyst,

testified as to the similarity between a palm print found at the scene of the crime and the known

palm print of Wadlington. S.A. 792. She testified that, “in [her] opinion, the latent and the known

print were made by the same donor.” Id. On cross-examination, Gilpin was asked how many

“matching ‘lines’ of friction ridges she needed to find before she could form an opinion,” and

specifically if eight lines would be enough. S.A. 798. Gilpin responded that the determination

ultimately depends on “the totality of the information” but she would not be personally

comfortable making a determination on such a low number of matching lines and that she “would

never want to put an innocent person in jail.” Id. Amy Joy, the DNA analyst, compared a DNA

3The trial transcripts, referred to as “T. Tr.” and by the day of the trial, are contained in the S.A.,

D. 53.

profile “from a swab taken from a ‘red-brown drop’ on the cellar stairs . . . with the known DNA

profile of [Wadlington].” S.A. 792. Joy also compared the known DNA profile of Wadlington,

who is African American, with another sample taken from a red-brown stain located in Cole’s car.

Id. For each comparison to Wadlington’s known DNA profile, Joy testified that each sample was

consistent with his DNA profile and that “the probability of a randomly selected African-American

having the same DNA profile is one in 3.782 quintillion.” Id.

Wadlington also testified at trial. S.A. 793. At trial, Wadlington stated that, on December

24, “he was in Brockton delivering Christmas presents to his aunt and visiting his father in a

nursing home, and that he returned home around midnight.” Id. He said he had never been in the

residence where the killing occurred” nor had he ever met Cole or been in his car. Id. This

testimony differs from the statement Wadlington had originally given the police on January 12,

2006, in which he claimed to have been at home all night with his girlfriend, id., an inconsistency

that the Commonwealth pointed out in its cross-examination of him. S.A. 96.

During its closing argument, the government summarized the evidence and, among other

things, argued that “[a] drug dealer, drug user or not, 19-year-old Rudolph Santos was left to die

on the floor by [Wadlington] and Leslie Cole, that’s what really happened, ladies and gentlemen.”

S.A. 739.

The jury was not given an unanimity instruction regarding either the identity of the victim

of armed robbery or the underlying felony which served as the basis for the felony murder charge

as part of the jury charge. S.A. 799. Wadlington’s attorney did not object to the absence of either.

Id. Additionally, the jury was instructed to find Wadlington guilty of felony murder if it found he

had committed a felony inherently dangerous to human life and that the felonies of armed robbery

and armed home invasion are inherently dangerous to human life. S.A. 799-00.

On May 20, 2010, the jury returned a guilty verdict on the charges of first-degree murder

(on theories of deliberate premeditation, extreme atrocity or cruelty and felony murder), assault by

means of a dangerous weapon, armed robbery and armed home invasion. S.A. 91-92, 791 & n.1.

(Wadlington was acquitted of the assault with intent to murder charge). S.A. 791 n.1. The judge

sentenced Wadlington to a life sentence on the murder conviction and terms of years, to be served

concurrently, on the other convictions. S.A. 92.

D. Wadlington’s Motion for New Trial and Appeal

In his motion for new trial and then in his direct appeal to the Supreme Judicial Court (a

consolidated appeal of his conviction and denial of his motion for new trial, S.A. 92), Wadlington

made numerous claims: (1) that the Commonwealth failed to provide timely exculpatory evidence

regarding Fields’ recanted statement about where the trio had traveled prior to arriving at Busby’s

apartment; (2) that the fruits of a search of his girlfriend’s residence should have been suppressed

where the affidavit in support of the search warrant included information from Fields that he later

recanted; (3) that the trial judge erred in not suppressing Wadlington’s custodial statements to

police; (4) that the trial judge erred in failing to find that there was insufficient evidence of the

armed robbery; (5) that the trial judge failed to instruct the jury that it must unanimously agree as

to which of the two targets was the victim; (6) that it was error to allow certain testimony by the

Commonwealth’s fingerprint expert; (7) that a substantial likelihood of a miscarriage of justice

arose from the prosecutor’s improper statements during opening and closing statements; (8) that

the judge relieved the prosecution of its burden of proving a necessary element by instructing the

jury that the crimes of armed robbery and home invasion are “inherently dangerous to human life

as a matter of law”; (9) that the judge failed to instruct the jury that they must unanimously agree

on the predicate felony; and (10) that he received ineffective assistance of counsel because his trial

counsel failed to seek reconsideration of the denial of the motions to suppress, to request a

unanimity instruction and to move to strike the government fingerprint expert’s comments. S.A.

790-91.

The trial judge denied the motion for a new trial. S.A. 107. Wadlington appealed the

denial of the motion, which was consolidated into his direct appeal, to the Supreme Judicial Court.

The Supreme Judicial Court addressed each of Wadlington’s claims and affirmed the convictions

and the denial of the motion for new trial. S.A. 800.

IV. Procedural History

Wadlington filed the Petition, raising the claims addressed by the Supreme Judicial Court.

D. 1. Wadlington filed an amended petition on May 24, 2016, D. 32, pursuant to this Court’s order

granting the government’s motion for a more definite statement, D. 17.

This Court has already granted the government’s motion to dismiss in part as to

Wadlington’s sixth claim, regarding the trial testimony of the government’s fingerprint expert,

finding that the claim was not exhausted in state court, D. 47, but now addresses the remaining

grounds for the Petition.

V. Discussion

A. There was no Brady Violation

Wadlington claims his constitutional rights were violated because the prosecution did not

give defense counsel notice of the change in Fields’ statement. D. 73 at 1. Wadlington argues

that, because the prosecution heavily relied on Fields’ false statement, the prosecution had a duty

to disclose this exculpatory change. Id. at 4-5. Wadlington additionally claims that this

information was not disclosed until a day before trial. Id. at 4. This argument fails for two reasons:

the Supreme Judicial Court reasonably found that the government had timely disclosed the change

and, even if there was a delay, it did not result in prejudice. S.A. 795-96.

This Court, in reviewing a habeas petition, must presume the accuracy of factual findings

made in state court unless the petitioner has rebutted this presumption with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). As explained above, the Supreme Judicial Court concluded

that the record before the trial court showed that, rather than waiting to inform Wadlington’s

attorney of the change in Fields’ testimony, the Commonwealth sent the videotape recording of

Fields’ changed testimony to Wadlington’s attorney within one month of recording it. S.A 795.

Additionally, the Commonwealth reminded defense counsel of this receipt a few months later,

approximately six weeks before trial. S.A. 796. While Wadlington alleges that his counsel was

surprised by the change in testimony, this allegation is unconvincing given that Wadlington’s

attorney admitted that he had received a copy of the videotape before trial. See T. Tr. IV: 21.

Additionally, in a hearing on a motion to quash a subpoena issued by defense counsel for Fields,

the Commonwealth asserted that Wadlington’s counsel had received the videotape containing

Fields’ changed statements and his counsel did not refute this statement. S.A. 98. Wadlington has

presented no evidence, much less clear and convincing evidence, that supports his contention that

the state court erred in making its factual determination that defense counsel had received the new

statement in a timely manner.

Moreover, even if there was a delay in handing over this evidence, there was no prejudice

to Wadlington. A Brady violation, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), occurs

when “[t]he evidence at issue must be favorable to the accused, . . . that evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”

Stickler v. Greene, 527 U.S. 263, 282 (1999). Here, the Supreme Judicial Court determined that

there was no prejudice because Wadlington’s counsel made “extensive and effective use of the

prior inconsistency at trial in his cross-examination of Fields.” S.A. 796. This finding is supported

by defense counsel’s cross-examination of Fields. See T. Tr. IV: 88-89. Thus, the last prong of

the federal standard under Brady, that the suppression result in prejudice, remains unmet. For all

of these reasons, this ground does not entitle Wadlington to habeas relief.

B. Reliance Upon Fields’ Original Statement to Police for the Search Warrant

Affidavit Did Not Violate the Fourth Amendment_________ ___

Wadlington claims that his Fourth Amendment rights were violated because the police

relied upon Fields’ statement, which he later recanted, as part of the probable cause to obtain the

search warrant. D. 73 at 7. This claim is barred from federal review because “where the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution

does not require that a state prisoner be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search and seizure was introduced at this trial.” Stone v.

Powell, 428 U.S. 465, 482 (1976). “So long as a state prisoner has had an opportunity to litigate

his Fourth Amendment claims by means of such a set of procedures, a federal habeas court lacks

the authority, under Stone, to second-guess the accuracy of the state court’s resolution of those

claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001). Because Wadlington argued his claim

before the trial court and, ultimately, the Supreme Judicial Court, he had the opportunity to fully

and fairly litigation this claim, and thus it is not the place of this Court to question that ruling.

Even if this claim were not so barred, it would fail on its merits, as the Supreme Judicial

Court did not unreasonably apply federal law. As the Supreme Judicial Court correctly noted, so

long as the affiant seeking a search warrant does not intentionally, knowingly or recklessly use

false statements as probable cause to procure a search warrant, the warrant is not invalid due to the

presence of inaccurate information in the supporting affidavit. Franks v. Delaware, 438 U.S. 154,

155-56 (1978). For a search warrant to be voided and fruits of a search to be deemed inadmissible,

Wadlington must “show that the affiant in fact made a false statement or omission ‘knowingly and

intentionally, or with reckless disregard for the truth.’” United States v. Gifford, 727 F.3d 92, 98

(1st Cir. 2013). In Wadlington’s case, the Supreme Judicial Court reasonably found that the police

officer did not intentionally misstate facts as he had no reason to doubt the veracity of Fields’

statement at the time of his attestation in the affidavit, S.A. 796, particularly where Wadlington

has presented no facts that suggest intentional or reckless deceit on behalf of the affiant.

Lastly, even without the affiant’s reliance on Fields’ original statement tying the sawed-

off shotgun to the New Bedford residence, the affidavit contained ample evidence supporting

probable cause to search this location. The affiant recounted, among other things, information

from others witnesses that Wadlington lived at this residence and Wadlington’s name was on the

mailbox. S.A. 797. Lastly, the affidavit contained sufficient information not only that Wadlington

lived at the residence before his incarceration (on other charges), but also that there was probable

cause to believe that there would be evidence there of the charged crimes. S.A. 797. Accordingly,

this ground in the Petition does not warrant habeas relief.

C. Wadlington Made a Knowing and Voluntary Waiver of Miranda Rights and

Voluntary Statements Thereafter_____________________________________

Wadlington claims that he did not knowingly and intelligently waive his Miranda rights

because he was misled by the last instruction from the police, given as part of their Miranda

warnings, that tied his right to stop questioning at any time to his right to consult an attorney. D.

73 at 13. Further, Wadlington claims that his statements made to the officers were involuntary,

evidenced by the fact that he refused to sign the portion of the consent form indicating that he had

not been coerced into speaking with the police. D. 73 at 15.

The Supreme Judicial Court held that Wadlington’s Miranda waiver was knowingly and

voluntarily and his subsequent statements to the police were made voluntarily. S.A. 795. The

court based its conclusion with regard to the waiver on the grounds that Wadlington was given

both oral and written notice of his Miranda rights. S.A. 794-95. The Supreme Judicial Court also

concluded that Wadlington’s statements were voluntary as he demonstrated his understanding of

his right to end the interview and spoke with police because he “hoped to learn what they were

investigating” and to “persuade them that he was innocent.” S.A. 795. Wadlington only invoked

his right to be silent after he found out his girlfriend had not corroborated his story.

The Supreme Judicial Court reasonably applied federal law when ruling on this claim. The

determination of the validity of a Miranda waiver is a two-part analysis: the waiver must be made

voluntarily, meaning it “was the product of free and deliberate choice rather than intimidation,

coercion, or deception,” and it must be made knowingly, meaning it was “made with a full

awareness both of the nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). Both the determination of voluntariness

and knowing are made in light of the totality of the circumstances surrounding the waiver. Id.

Moreover, any statements following a valid waiver must be made voluntarily. See Spano v. New

York, 360 U.S. 315, 324 (1959).

First, the totality of the circumstances suggest that Wadlington’s Miranda waiver was made

voluntarily. The facts, as affirmed by the Supreme Judicial Court, do not reveal any conduct that

would have overcome Wadlington’s will with regard to waiving his Miranda rights. S.A. 795.

While Wadlington did not sign the part of the form that formally indicated that he had not been

coerced into meeting with the officers against his will, this is only one factor among all the

circumstances and, by itself, does not require a finding of involuntary waiver. Rather, the Supreme

Judicial Court reasonably concluded that Wadlington voluntarily waived his Miranda rights for

self-serving purposes, namely that he wanted to learn what the officers were investigating, S.A.

795, and this was so despite the “misleading warning” about the so-called fifth Miranda right to

terminate questioning. Id.

Secondly, the totality of circumstances also indicates that the waiver was made knowingly.

At multiple points, Wadlington made his understanding of the Miranda warnings clear. He

acknowledged his right to end the interview by saying, “One thing I do know. I am going to walk

out of here; I am not worried about whatever you do to me.” S.A. 795. He also acknowledged his

right to not speak with the officers at all multiple times throughout the interview. For example, at

the beginning of the interview, he indicated he understood his right not to speak with investigators,

“but said he wanted to know what was ‘going on.’” S.A. 795. Additionally, “[i]n the first one-

third of the interview, before he invoked his right to silence, [Wadlington] said, ‘I don’t want to

get up and leave because I am trying to figure out what the Hell is going on.’” S.A. 795. Given

these statements, this Court finds that the Supreme Judicial Court reasonably concluded that the

Miranda waiver was made knowingly.

Next, the Supreme Judicial Court did not unreasonably apply federal law in holding that

the statements following the waiver were voluntary. The relevant inquiry is whether, in giving the

statements, Wadlington’s will had been “overborne.” Spano, 360 U.S. at 323. The Supreme

Judicial Court ruled that Wadlington’s statements to police were “an attempt to persuade them that

he was innocent and had nothing to do with the armed robbery or the homicide.” S.A. 795. As

such, this Court cannot say that the Supreme Judicial Court ruling on this issue was an

unreasonable application of federal law because the totality of circumstances suggest that

Wadlington’s waiver and subsequent statements were made knowingly and voluntarily.

D. There Was Sufficient Evidence to Support the Conviction of Armed Robbery

While Wadlington admits that he, Fields, and Cole planned to rob a drug dealer, he

contends that there was insufficient evidence that an armed robbery actually took place. D. 73 at

17. While Santos was found with his pockets out and there was evidence of a struggle which

involved weapons, Wadlington argues that there was no evidence that anything had actually been

taken from the scene. See D. 73 at 18. Wadlington supports his argument by stating that “[c]ocaine

and bags of rock like substance on the kitchen floor w[h]ere Santos was found had not been taken.”

Id. The Supreme Judicial Court concluded that “[t]here was more than sufficient evidence that

[Wadlington] and his joint venturers were armed when they entered the targeted residence, that

their purpose was to rob the occupants of drugs and money, and that, at a minimum, they stole a

samurai sword during the course of the robbery.” S.A. 798-99.

“[N]o person shall be made to suffer the onus of a criminal conviction except upon

sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable

doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316

(1979). The relevant test is whether “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” O’Laughlin v. O’Brien, 568 F.3d 287, 299 (1st Cir. 2009) (quoting Jackson,

443 U.S. at 319) (emphasis in original). Reviewing courts may not set aside a verdict on

sufficiency grounds unless “no rational trier of fact could have agreed with the jury.” Cavazos v.

Smith, 565 U.S. 1, 2 (2011). It is not enough that the federal reviewing court disagrees with the

jury’s ultimate verdict; for reversal to be proper, the state court decision must be “objectively

unreasonable.” Renico v. Lett, 559 U.S. 766, 773 (2010).

The elements the prosecution needed to prove beyond a reasonable doubt as to the armed

robbery charge were: 1) that Wadlington or one of his co-venturers “[took] money or other

property from the victim with the intent to steal it, while armed with a dangerous weapon and by

applying actual force to the victim or putting the victim in fear through the use of threatening

words or gestures.” Commonwealth v. Benitez, 464 Mass. 686, 693 n.12 (2013); Mass. Gen. L. c.

265, § 17. Given the testimony at trial, a jury could have reasonably concluded that Wadlington

was armed when he entered Busby’s home with the others with the intent to rob the occupants.

First, Busby testified that, on the night of the crime, someone he did not recognize knocked on the

door. T. Tr. II: 99. To get a better look, he asked the person to step back a little so he could open

the door; when he opened the door, Busby said that “whoever was sitting on the set of stairs came

rushing in with the gun, the rifle, went past [him].” T. Tr. II: 99. Additionally, Busby testified

that, after obtaining the cellar key, he heard someone say “It’s only a 22” and, shortly after, a

gunshot. T. Tr. II: 108-09. Fields’ testimony also supported a finding that Wadlington was armed

when the robbery took place. Fields testified that, before driving to Busby’s apartment, Fields,

Wadlington and Cole drove to a residence where Wadlington retrieved a gun. T. Tr. IV: 41-42.

Next, a jury could have reasonably found that something had been stolen from the scene

of the crime. Busby testified that, upon hearing men “torturing [his] boy for the keys for the

cellar,” he retrieved his samurai sword. T. Tr. II: 104. Fields later testified that, when he saw Cole

a couple days after the robbery, Cole had the samurai sword in the trunk of his Chevy Lumina.

T. Tr. IV: 64. The Supreme Judicial Court reasonably concluded that the government presented

sufficient evidence that Wadlington was guilty of the robbery since Wadlington was Cole’s co-

venturer and as such is implicated in Cole’s taking of the sword. Thus, habeas relief is also not

warranted on this ground.

E. Wadlington’s Claim Regarding the Unanimity Instruction is Procedurally

Defaulted and Does Not Warrant Habeas Relief _____

Wadlington claims that his constitutional rights were violated when the trial judge did not

give an unanimity instruction with regard to the victim of the armed robbery. D. 73 at 20.

Wadlington contends that, because some jurors may have found him guilty of the armed robbery

of Santos and other jurors may have found him guilty of the armed robbery of Busby, the final

verdict may not have been unanimous, as Wadlington contends is constitutionally required. D. 73

at 22.

This claim fails because it is procedurally barred. The Supreme Judicial Court concluded

that Wadlington neither requested an unanimity instruction nor objected to its absence. See

Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010); S.A. 799. Even if this claim were not so

barred, the state court’s denial of same was based on Massachusetts law, and “[f]ederal courts

sitting in habeas must accept state court rulings on state law issues” since any “inquiry into the

correctness of a ruling on state law issues ‘is no part of a federal court’s habeas review of a state

conviction.’” Rodriguez v. Spencer, 412 F.3d 29, 37 (1st Cir. 2005) (quoting Estelle v. McGuire,

502 U.S. 62, 67 (1991)). Specifically, the Supreme Judicial Court found that the unanimity

instruction was not required on two separate state law grounds. First, Massachusetts law does not

require a specific unanimity instruction where evidence demonstrates “a continuing course of

conduct . . . rather than clearly detached incidents.” S.A. 799 (quoting Commonwealth v. Santos,

440 Mass. 281, 285 (2003)). Here, the Supreme Judicial Court concluded that the conduct during

the crimes were part of such a continuing course of conduct, rather than separate incidents. S.A.

799. In other words, the Supreme Judicial Court was satisfied that the jury unanimously found the

defendant guilty of armed robbery on the single occasion alleged, which is what is required under

Massachusetts law. See Santos, 440 Mass. at 285. Second, the Supreme Judicial Court held that

“both Busby and Santos were properly identified as victims of the armed robbery in the indictment

because each had ‘some protective concern with respect to the property taken’ and the property

was taken from both victims’ ‘person or presence.’” S.A. 799 (quoting Commonwealth v. Levia,

385 Mass. 345, 351 (1982)). For all of these reasons, Wadlington is not entitled to habeas relief

on this ground.

F. Prosecutor’s Opening Statement and Closing Argument Do Not Merit the

Relief Wadlington Seeks ___________________

Wadlington claims, in essence, that he was denied due process as a result of misstatements

regarding DNA evidence and fingerprint analysis made by the prosecution during its opening

statement and closing argument. D. 73 at 29. Wadlington argues that the prosecutor improperly

injected her personal belief regarding the defendant’s guilt and appealed to the sympathy of the

jury by stating, “[t]hat is what really happened ladies and gentlemen. We know [Wadlington]

didn’t find the drugs down there because they were still down there on the 26th. . . . [Wadlington]

and Cole were very mad. And the Cole [sic] and [Wadlington] shot his friend and left 19-year-old

Rudolph Santos to die on the floor.” Id. at 31-32. Wadlington contends these are improper

statements as there was no evidence that the blood collected from the stain in the cellar was his

blood and because the prosecution did not tell the jury that the fingerprint testimony only

constituted an opinion. Id. at 29.

As an initial matter, this claim is also procedurally defaulted. Wadlington did not object

either to the prosecutor’s opening statement or closing argument. S.A. 799. Against this backdrop,

the Supreme Judicial Court noted that, even if defense counsel had done so, it would not have

mattered, as “[n]othing in the prosecutor’s opening statement or closing argument created a

substantial likelihood of a miscarriage of justice,” S.A. 799, the heightened state standard that

applies to unpreserved objections.

Even if this claim was not procedurally defaulted, for constitutional analysis, the “relevant

question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The prosecution’s assertions in

the opening statement regarding the analysis done on both the blood and palm print were grounded

in evidence later introduced at trial. See Kirwan v. Spencer, 631 F.3d 582, 588-89 (1st Cir. 2011)

(holding that when statements and inferences given in opening statements are grounded in

evidence, they will not be considered as violating a defendant’s due process rights). Here, Amy

Joy, a DNA analyst who performed the comparison analysis for Wadlington’s case and testified at

trial, opined that the DNA profile of Wadlington was “consistent with the DNA profile of the swab

of red brown drop from the cellar stairs.” T. Tr. VI: 91. Sergeant Kerri Gilpin, a fingerprint expert

with the Massachusetts State Police Department, opined at trial that the print found in the cellar

matched Wadlington’s print. T. Tr. IV: 195. Because the prosecution’s opening statements were

grounded in evidence later introduced, this Court cannot say that the prosecutor’s statements

amounted to a denial of due process.

The same is true with the closing argument. Wadlington specifically takes issue with the

fact that the Commonwealth stated, “[w]e have the DNA, ladies and gentlemen.” D. 73 at 31; S.A.

740. However, the Commonwealth adequately talked through the process by which the DNA tests

were conducted, using statements that were supported by witness testimony was offered during

trial. S.A. 741.

Lastly, Wadlington takes issue with the Commonwealth’s statement that “Santos was left

to die on the floor.” S.A. 739. This statement, however, does not rise to the level of a due process

violation. See Darden, 477 U.S. at 180-81 (holding that comments, including the prosecutor’s

opinion on the defendant’s guilt and a statement that the perpetrator of the crime was an “animal,”

did not infringe on defendant’s due process rights); see also Donnelly, 416 U.S. at 644 (holding

that prosecutor’s remark implying that respondent offered to plead guilty did not violate due

process, especially considering that it was followed by a disapproving curative instruction). To

the extent that anything about this statement suggested personal knowledge on the part of the

prosecutor, the trial court addressed same with a curative instruction. Despite Wadlington’s

counsel not objecting to the prosecutor’s closing arguments, see T. Tr. VIII: 52, before the judge

gave his full jury instructions, he stated that he “want[ed] to clear one thing up, just as a matter of

wording.” Id. The judge then instructed the jury:

“I know during the Commonwealth’s argument there was [an assertion] . . . that a

certain person was a certain person, and we know what they were looking for and

we know something else, . . . and the Commonwealth is not suggesting that the

district attorney has any personal knowledge of this case, that’s really semantics.

The Commonwealth is suggesting what she claims the evidence establishes, and

that’s the evidence presented in this courtroom, the evidence you heard. You

shouldn’t infer that there’s some other knowledge beyond anything that was

presented in this courtroom. . . . It’s for you to evaluate the evidence and for you to

draw such conclusions as you see fit.”

S.A. 740 (quoting T. Tr. VIII: 52-53). Given this curative instruction, coupled with the general

instruction that opening statement and closing arguments were not evidence, S.A. 104, and because

“jurors are normally presumed to follow the trial court’s instructions,” United States v. Sampson,

486 F.3d 13, 39 (1st Cir. 2007), the Court does not conclude that this ground warrants habeas

relief.

G. Jury Instructions on Felony Murder Do Not Warrant Habeas Relief

Wadlington claims that the judge’s instructions on the elements of felony murder relieved

the Commonwealth of its duty to prove an element of felony murder, thus violating Wadlington’s

Sixth Amendment rights. Specifically, Wadlington contends that the jury was denied the ability

to decide whether armed robbery or armed home invasion were crime “inherently dangerous to

human life” where the trial judge instructed the jury that, as a matter of law, the felonies of armed

robbery and armed home invasion are felonies which are “inherently dangerous to human life.”

S.A. 800.

The state court, however, resolved this issue as a matter of Massachusetts law regarding

felony murder. At the time relevant to this decision, Massachusetts law designated “the elements

of felony murder [as] (1) an unlawful killing, (2) committed in the course of a felony, and (3) the

defendant committed the felony with a conscious disregard for human life.” Mello v. DiPaulo,

295 F.3d 137, 149 (1st Cir. 2002) (citing Commonwealth v. Prater, 431 Mass. 86, 95 (2000)).4

Massachusetts courts have designated multiple felonies that “as a matter of law, may support a

conviction of felony-murder” as they replace the “need to show a ‘conscious disregard for human

life because the risk is implicit in the intent required for the felony.’” Commonwealth v. Tevlin,

433 Mass. 305, 314 (2001) (quoting Commonwealth v. Scott, 428 Mass. 362, 364 (1998)).

Therefore, under Massachusetts law, it was not erroneous for the judge to rule as a matter of law

that felonies of armed robbery and armed home invasions were inherently dangerous to human

life.

As discussed above, habeas courts “must accept state court rulings on state law issues.”

Rodriguez v. Spencer, 412 F.3d 29, 37 (1st Cir. 2005). Ultimately, this claim was based on a state

court ruling regarding state law. It is unavailing now that Wadlington attempts to cast this claim

in a constitutional light. See Cruz v. Maloney, 152 F. App’x 1, 4 (1st Cir. 2005) (denying habeas

4The law has changed prospectively as to felony-murder under Massachusetts law, Commonwealth

v. Brown, 477 Mass. 805, 807 (2017), but that new rule does not apply retrospectively to

Wadlington’s 2010 conviction. Id. (holding that “in trials that commence after the date of the

opinion in this case, a defendant may not be convicted of murder without proof of one of the three

prongs of malice”).

relief on the grounds that jury instructions relieved Commonwealth of its duty to establish all

necessary elements of a crime when Petitioner’s claim ignored well-established Massachusetts

precedent and had been decided by the Supreme Judicial Court on the basis of state law).

Wadlington’s argument ignores well-settled Massachusetts precedent which provides that the

determination of whether a felony is “inherently dangerous to human life” is a matter of law, not

one of fact. Thus, the trial judge properly instructed the jury as to the elements of a felony-murder

under Massachusetts law at that time and did not relieve the prosecution of their burden of proof.

Habeas relief is, therefore, denied on this ground.

H. Lack of Unanimity Instruction for Underlying Felony for Felony Murder

Conviction Did Not Violate Wadlington’s Constitutional Rights

Wadlington claims that his Fifth, Sixth, and Fourteenth Amendment rights were violated

when the trial judge did not give a specific unanimity instruction with regard to which underlying

crime served as the basis for felony murder conviction. The jury was instructed to find Wadlington

guilty of felony murder if it found that the murder occurred during the commission of either armed

robbery or armed home invasion but did not specify that the jurors had to be unanimous as to

which felony it was. D. 73 at 39.

The Supreme Judicial Court agreed with Wadlington that such an instruction was necessary

because, when felony murder is at issue, the jury must agree as to the underlying felony. S.A. 799.

The Supreme Judicial Court, however, ultimately declined his appeal on this claim because the

absence of the instruction created no prejudice as the jury ultimately convicted Wadlington on both

underlying felonies, thus ensuring that “the jury unanimously found beyond a reasonable doubt

that the defendant committed both of [the] felonies.” S.A. 800. Additionally, even if Wadlington’s

argument had merit, the Supreme Judicial Court ruled that the murder conviction would still stand

“because the defendant was also convicted of this crime on the theories of deliberate premeditation

and extreme atrocity or cruelty.” S.A. 800.

In Brecht v. Abrahamson, the Supreme Court held that habeas petitioners are not entitled

to relief based on trial error unless they can establish it resulted in actual prejudice. Brecht v.

Abrahamson, 507 U.S. 619, 638 (1993). Under this standard, habeas relief is only proper if a

“federal court has ‘grave doubt about whether a trial error’ . . . had substantial and injurious effect

or influence in determining the jury’s verdict.” Id. at 623. Here, the test is not satisfied, as this

Court finds no injurious effect on the verdict as a result of the mistaken jury instructions. This is

because the jury would certainly have reached the same conclusion, that Wadlington was guilty of

felony murder, even with proper instruction, as Wadlington was ultimately convicted of both

underlying felonies.

I. There Was No Ineffective Assistance of Counsel

Lastly, Wadlington claims that his Sixth Amendment rights were violated as a result of

ineffective assistance of counsel. D. 73 at 41. He argues his counsel was ineffective in failing to:

(1) seek reconsideration of motions to suppress, (2) request an unanimity instruction and (3) move

to strike the fingerprint expert’s comments on Wadlington’s guilt.

In his appeal, the Supreme Judicial Court noted that “[b]ecause his claim of ineffective

assistance is based on defense counsel’s failure to act appropriately to prevent some of the eight

errors claimed on appeal or to preserve the defendant’s rights regarding those alleged errors, we

shall address this claim when we address the other claims.” S.A. 791. The Supreme Judicial Court

addressed the issue more directly was when it discussed the motion to suppress, noting that,

“[e]ven if defense counsel failed timely to review the videotape and for that reason did not learn

of Fields’ recanted statement until the eve of trial, his failure did not render counsel effective

because, as the judge found and the record reflects, he made ‘extensive and effective use of the

prior inconsistency at trial in his cross-examination of Fields.’” S.A. 796. As to the other grounds

on which Wadlington bases his ineffective assistance of counsel claims, the Supreme Judicial

Court analyzed whether the line of action that Wadlington claims his attorney should have taken

would have been meritorious, such that he was not prejudiced by these alleged failures.

Concluding that they would not have been, the Supreme Judicial Court declined to overturn his

conviction on such grounds. S.A. 796, 799.

An ineffective assistance of counsel claim requires Wadlington to demonstrate his “(1)

‘counsel’s representation fell below an objective standard of reasonableness’ and (2) ‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” United States v. Constant, 814, F.3d 570, 578 (1st Cir. 2016) (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)). Under the first prong, the Petitioner must

show their counsel was “so inferior as to be objectively unreasonable” against the court’s “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir. 1996) (citation and internal

quotation mark omitted). Under the second prong, reasonable probability means “a probability

sufficient to undermine confidence in the outcome.” Argencourt v. United States, 78 F.3d 14, 16

(1st Cir. 1996) (quoting Strickland, 466 U.S. at 694).

Wadlington argues that his counsel failed to engage in an investigation of Fields’ recanted

statements underlying the search warrant and move to reconsider the denial of the motion to

suppress. D. 73 at 42-43. This argument fails because, as explained above, Wadlington fails to

demonstrate that a motion for reconsideration would have been meritorious given that the affiant

understood that Fields’ statement was accurate at the time the search warrant was sought and issued

and the Supreme Judicial Court’s determination that there was sufficient evidence otherwise to

support a finding of probable cause. Thus, the second prong of the Strickland test, that but for

counsel’s actions the outcome would have been different, is unfulfilled.

Wadlington also contends that his trial counsel was ineffective for both failing to seek

reconsideration of the motion to suppress statements and request a humane practice instruction.

D. 73 at 44-46. This claim is also unavailing as Wadlington has again not proven this line of

defense would have been meritorious. The motion judge and the Supreme Judicial Court were

“convinced beyond a reasonable doubt . . . [Wadlington’s] statements were voluntary” before he

invoked his right to silence. S.A. 795. Moreover, the Supreme Judicial Court determined that

defense counsel’s failure to request a humane practice instruction cannot constitute ineffective

assistance of counsel because “the voluntariness of the defendant’s statements was not a live issue

at trial.” S.A. 795. This fact is significant because a humane practice instruction is only required

“where a defendant’s statements are offered in evidence and the voluntariness of those statements

is ‘a live issue at trial.’” Commonwealth v. Carter, 475 Mass. 512, 523 (2016) (quoting

Commonwealth v. Tavares, 385 Mass. 140, 150 (1982)). Given these findings, it cannot be said

the Supreme Judicial Court’s determination that Wadlington’s counsel was not ineffective for

failing to pursue reconsideration of the motions to suppress was an unreasonable application of

Strickland.

Wadlington next claims that his counsel was ineffective for failing to request an unanimity

instruction. Again, this argument fails because such a request would not have altered the outcome

of the trial, as explained more fully above. Receiving an unanimity instruction with regard to the

victim of the armed robbery would not have changed the outcome in the trial because, as the

Supreme Judicial Court explained, “both Busby and Santos were properly identified as victims of

the armed robbery” and Massachusetts law does not require a specific unanimity instruction where

evidence demonstrates “a continuing course of conduct . . . rather than clearly detached incidents.”

S.A. 799. Again, because it would not have affected the outcome, the Supreme Judicial Court

properly applied the Strickland standard to this claim.

Wadlington also claims he received ineffective assistance of counsel because his trial

counsel failed to move to strike the fingerprint expert’s testimony, specifically that she “would

never want to put an innocent person in jail.” D. 73 at 48. Wadlington contends that this statement

robbed the jury of the ability to come to their own conclusion regarding his guilt, free from an

expert’s opinion. D. 73 at 48. This claim, however, falls short of the Strickland standard as applied

to habeas petitions, which requires “but for the ineffective assistance, the outcome of the case

would have been different.” Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006). In this case, it

cannot be said that but for the Gilpin’s comment being struck that the outcome of the trial would

have been different. Without repeating all of the evidence presented at the trial, even without the

fingerprint testimony, there was substantial, inculpatory evidence against Wadlington. The

Supreme Judicial Court, upon review, determined that this statement should have been struck from

the record, but that its admission in the record “did not create a substantial likelihood of a

miscarriage of justice.” S.A. 798. The First Circuit has held that when the Supreme Judicial Court

applies the “‘substantial likelihood of a miscarriage of justice’ standard, its decision will not be

deemed to be ‘contrary to’ the Strickland criterion.” Knight, 447 F.3d at 15 (quoting Mello, 295

F.3d at 144). That is, this Court does not conclude that even counsel erred in failing to move to

strike this line of testimony, the result of the trial would have been different. As to the bases that

Wadlington relies upon for his ineffective assistance of counsel claim, none of them support the

granting of habeas relief.

VI. Conclusion and Certificate of Appealability

For the foregoing reasons, the Court DENIES the Petition. Wadlington may receive a

certificate of appealability only if he makes “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). A certificate of appealability is appropriate when “reasonable

jurists would find the district court’s assessment of the constitutional claim debatable or wrong.”

Miller-El, 537 U.S. at 338 (internal quotations omitted). Based upon the analysis of the record

and the applicable law in this Memorandum and Order, the Court is not, at this juncture, inclined

to issue a certificate of appealability, but will give Wadlington until February 25, 2019 to file a

memorandum, not to exceed five (5) pages, if he seeks to address the issue of whether a certificate

of appealability is warranted as to any of the grounds in the Petition.

So Ordered.

/s/ Denise J. Casper

United States District Judge