Green v. Kenneway

DISTRICT OF MASSACHUSETTS

JULIAN GREEN, )

) CIVIL ACTION NO.

Petitioner, ) 18-12298-DPW

)

v. )

)

STEVEN KENNEWAY,1 )

Superintendent, )

)

Respondent )

)

MEMORANDUM AND ORDER

July 15, 2019

This case arises out of the 2010 jury trial and conviction

of the Petitioner, Julian Green, in Massachusetts State Superior

Court for second-degree murder. Mr. Green was sentenced to life

in prison and he appealed.

Mr. Green’s co-defendant, Anthony Russ, was thereafter

acquitted of murder charges involving the same victim in a

separate trial. Mr. Green then filed a motion in the Superior

Court for a new trial while his direct appeal was pending,

arguing that evidence presented during Mr. Russ’s trial

constituted newly discovered evidence of a third-party

1 Defendant Steven Kenneway is the Superintendent of MCI Shirley,

where Mr. Green was housed at the time he filed his petition for

relief under 28 U.S.C. § 2254. Mr. Green apparently has since

been moved to MCI Norfolk. However, neither party has moved to

substitute the MCI Norfolk Superintendent as the Respondent in

this case. Rather than further complicating docketing, I will

leave the caption unchanged with the recognition that the proper

respondent is Mr. Green’s current custodian in the Massachusetts

Correctional System.

timely appealed that decision. The Massachusetts Appeals Court,

after consolidating the two appeals, affirmed in an unpublished

decision2 and the Supreme Judicial Court declined further

appellate review.

Mr. Green now seeks a federal writ of habeas corpus under

28 U.S.C. § 2254 on the basis that the Superior Court’s denial

of his motion for a new trial deprived him of due process and

the right to present a defense. Mr. Green also argues that his

trial counsel was constitutionally ineffective because he failed

both to raise certain evidentiary objections and to offer

evidence of a third-party perpetrator.

2 The Massachusetts Appeals Court issued its decision in this

case under MASS. APP. CT. R. 1:28, which allows for the summary

disposition of an appeal if a panel of justices of the Appeals

Court “determine[s] that no substantial question of law is

presented by the appeal or that some clear error of law has been

committed which has injuriously affected the substantial rights

of an appellant.” MASS. APP. CT. R. 1:28. Pursuant to this rule,

both the North East Reporter Third and the Massachusetts Appeals

Court Reports included only the final disposition of this case

in table format in their print volumes, in recognition of the

fact that summary decisions under Rule 1:28 “are primarily

directed to the parties” and “are not circulated to the entire

court” prior to issuance. See Commonwealth v. Green, 87 N.E.3d

1200; 92 Mass. App. Ct. 1102 (Mass. App. Ct. Aug. 4, 2017); see

also Chace v. Curran, 881 N.E.2d 792, 794 n. 4 (Mass. App. Ct.

2008). Nevertheless, the full memorandum explaining the

reasoning of the Appeals Court is available on both WestLaw and

Lexis. See 2017 WL 3317888; 2017 Mass. App. Unpub. LEXIS 773.

It also was included as part of the Petitioner’s Application for

Further Appellate Review (“ALOFAR”) to the SJC and filed with

this court in conjunction with the instant petition for habeas

relief. When citing to the decision of Appeals Court in this

Memorandum, I have included both the citation to the

Massachusetts Appeals Court Reporter and to WestLaw.

(A) Factual Background3

1. The Incident and Investigation

On July 18, 2007, shots were fired from at least two

different guns into a residence located at 36 General Patton

Drive in Hyannis. During the shooting, a .40 caliber bullet

struck and fatally wounded Jacques Sellers, who was present in

the house.

Carrie Perry, a woman who was in the house at the time of

the incident gave testimony at trial that she saw “two young

black Americans in jean shorts with hoodies on” running in the

middle of the road immediately after the shooting; she did not,

however, see either man’s face. Another woman, Courtney Doyle,

testified that she was sitting in her parked car across the

street at the time of the incident and that she saw two African

3 Under 28 U.S.C. § 2254(d)(2), I am obligated to defer to the

factual findings of the State courts unless they are

unreasonable in light of the evidence presented. The facts as

presented here are drawn from the trial transcript as referenced

in the decision of the Barnstable County Superior Court denying

Mr. Green’s motion for a new trial, and from the memorandum

filed by the Massachusetts Appeals Court explaining its

affirmance of the judgment. Commonwealth v. Green, 92 Mass.

App. Ct. 1102, 2017 WL 3317888 (Mass. App. Ct. Aug. 4, 2017)

(unpublished Memorandum and Order), review denied 478 Mass. 1104

(2017), which was the last fully reasoned judgment of the state

courts. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018)

(holding that, when the relevant state-court decision on the

merits does not include reasons for its disposition, “the

federal court should ‘look through’ the unexplained decision to

the last related state-court decision that does provide a

relevant rationale.”).

ten inches tall, wearing a tan sweatshirt and a black sweatshirt

respectively.

During the investigation, police officers recovered shell

casings from several .38 caliber and .40 caliber bullets and

found several bullet holes in the front and side windows and in

the house’s siding. The police also used a canine unit to track

suspects to 23 General Patton Drive, the residence of Todd

Lampley. Mr. Lampley previously had been beaten by Rodney

Ferguson, who was present at 36 General Patton Drive when the

shooting took place.

While police were searching the area, they also recovered a

glove and a black hooded sweatshirt, both of which were later

tested for DNA. The tests did not contain enough information to

identify any particular person as the source of the DNA taken

from the glove and excluded Mr. Green as the source of the DNA

taken from the sweatshirt.

2. The Petitioner’s Involvement

As the investigation into the incident continued, Mr.

Green, along with Anthony Russ, Todd Lampley, and Devarus

Hampton, were identified by law enforcement officers as persons

of interest. The investigators eventually focused on Mr. Green

and Mr. Russ as the possible shooters. Mr. Green’s girlfriend

at the time, Jessica Schwenk, testified that on the day of the

shooting, Mr. Green accompanied her to her grandmother’s house

a phone call and told Ms. Schwenk that his friend, Mr. Russ,

needed him in Hyannis. After receiving the call, Mr. Green

called Jill Parsons and asked her to bring him “something he had

left in her garage.” The “thing” was a gun, which Ms. Parsons

brought to a CVS in Yarmouth and gave to Mr. Green. Ms. Parsons

testified that Mr. Green later told her he threw the gun in the

ocean.

After Mr. Green received the gun from Ms. Parsons, Ms.

Schwenk drove Mr. Green to a hotel in Yarmouth and, following

his instructions, then drove alone to General Patton Drive in

Hyannis. She testified that she saw Mr. Green and Mr. Russ

together on General Patton Drive, and that they instructed her

to wait in the car on the next street over. A short while

later, Mr. Green and Mr. Russ came back to her car and she drove

them to the end of the road, where they ran into the woods.

When he saw her later that night and the following day, Mr.

Green told Ms. Schwenk that ”he shot the house” because “he was

helping a friend.”

Mr. Green was eventually arrested and indicted by a grand

jury.4 During his incarceration, Mr. Green wrote letters to Ms.

4 Mr. Green confessed to shooting into 36 General Patton Drive

both during his October 31, 2007 police interview and during his

testimony before the grand jury on November 9, 2007. The

Superior Court suppressed evidence of both confessions, finding

that they were obtained in violation of the Fifth Amendment and

the protections afforded by Miranda v. Arizona, 384 U.S. 436

Ms. Schwenk was arrested on different charges, her mother and

her mother’s friend, Lisa Steele, read certain of the letters

sent by Mr. Green to Ms. Schwenk. Lisa Steele then contacted a

law enforcement friend, Lt. Det. Robert Melia of the

Massachusetts State Police, and told him that she believed the

letters contained incriminating information about the July 18,

2007 shooting.

Ms. Steele eventually gave Det. Melia some of the letters,

and Det. Melia advised her not to tamper with any of the

remaining letters since they might contain material evidence in

the Commonwealth’s case against Mr. Green. Shortly thereafter,

Sandra Schwenk gave the remaining letters to Ms. Schwenk’s

attorney, who, in turn, gave them to the police. Law

enforcement officials never obtained a warrant for these

letters.5

(1966), as incorporated into Massachusetts state law. See,

e.g., Commonwealth v. Martin, 827 N.E.2d 198, 204-05 (Mass.

2005) (holding that, “[i]nsofar as [Miranda] adequately protects

those rights [guaranteed by the state constitution regarding the

privilege against self-incrimination], a separate rule is not

required. To the extent that its application proves inadequate

to the task, [the SJC has] ‘established certain State law

principles as adjuncts to the Miranda rule.’” (citing, inter

alia, Commonwealth v. Ghee, 607 N.E.2d 1005, 1009 n. 5 (Mass.

1993); Commonwealth v. Snyder, 597 N.E.2d 1363, 1368-69 (Mass.

1992)).

5 In his original motion for a new trial, Mr. Green argued that

the letters were seized in violation of his Fourth and Fifth

Amendment rights because the police did not have a warrant to

seize them and, in any event, they were the fruits of an

improper police interrogation. He also argued that his

1. State Court Proceedings

On January 8, 2008, a Barnstable County grand jury indicted

Mr. Green for murder in the second degree, assault and battery

with a dangerous weapon, discharge of a firearm within 500 feet

of a dwelling, unlawful possession of a firearm, and assault

with a dangerous weapon. The prosecution proceeded on a joint

venture theory, reflecting the contention that Mr. Green could

be found guilty even if the bullet he fired was not the one that

ultimately struck and killed the victim. See Green, 92 Mass.

App. Ct. 1102, 2017 WL 3317888 at *1 n. 3.6 Following an eight-

counsel’s failure to object to the admission of the letters

rendered him constitutionally ineffective. Both the Superior

Court and the Appeals Court rejected this argument, holding that

Mr. Green did not have standing to challenge the search and

seizure of the letters and that the search was not effectuated

by the Commonwealth, so it could not violate the Fourth

Amendment as government action. Both courts also held that the

letters were not the fruits of an improper police interrogation

because Mr. Green failed to show a direct link between the

suppressed testimony and the letters themselves. Green, 92

Mass. App. Ct. 1102, 2017 WL 3317888 at *4.

Mr. Green references the letters in his ALOFAR in conjunction

with his ineffective assistance argument, and suggests that they

should have been suppressed. However, he does not advance a

clear argument either for suppression or for ineffective

assistance in the ALOFAR. Mr. Green similarly references the

letters in passing in his habeas petition in connection with his

argument that his trial counsel was constitutionally

ineffective. However, he has not argued in his habeas petition

that the letters should have been suppressed; nor, I note, is he

entitled to raise that Fourth Amendment claim here. See

generally, Stone v. Powell, 428 U.S. 465 (1976).

6 Massachusetts law holds that “[a] joint venturer is ‘one who

aids, commands, counsels, or encourages commission of a crime

while sharing with the principal the mental state required for

the crime.’” Commonwealth v. Chipman, 635 N.E.2d 1204, 1209

sentenced to life in prison.

Mr. Green appealed his convictions on July 26, 2010 and, on

February 17, 2012, he filed his motion with the Superior Court

for a new trial under MASS. R. CRIM. P. 30(b) on the basis that,

among other things, testimony presented by Devarus Hampton at

the trial of Anthony Russ constituted newly discovered evidence

and that trial counsel was constitutionally ineffective. The

Superior Court denied the motion for a new trial on November 6,

2014. Mr. Green appealed that decision, which resulted in the

consolidation of the direct appeal of his conviction and the

appeal of the denial of a new trial.

On August 4, 2017, the Appeals Court affirmed the

convictions and the denial of a new trial. It held that Mr.

Hampton’s testimony did not constitute newly discovered evidence

that would entitle Mr. Green to a new trial and that trial

counsel was not constitutionally ineffective. Commonwealth v.

(Mass. 1994) (internal citations omitted). “To convict a

defendant of murder on a joint venture theory, the Commonwealth

must establish that the defendant ‘was (1) present at the scene

of the crime, (2) with knowledge that another intends to commit

the crime or with intent to commit a crime, and (3) by agreement

[was] willing and available to help the other if necessary.’”

Id. (internal citations omitted) (modification in original). A

jury is not required to decide whether the defendant was acting

as the principal or merely as a helper when making a

determination of guilt on a murder charge prosecuted as a joint

venture. Commonwealth v. Pike, 726 N.E.2d 940, 944 (Mass.

2000).

Aug. 4, 2017).

On September 1, 2017, Mr. Green filed an Application for

Further Appellate Review (“ALOFAR”) with the SJC. In

particular, the ALOFAR argued that the testimony of Devarus

Hampton should be considered newly-discovered, and that the

Superior Court’s denial of Mr. Green’s motion for a new trial on

the basis that newly-discovered evidence regarding a third-party

perpetrator violated his federal and state constitutional right

to present a defense. Mr. Green also argued that trial counsel

was otherwise constitutionally ineffective because of various

actions he failed to take during Mr. Green’s original trial,

specifically by not addressing whether Mr. Lampley lied about

his alibi; failing to confront and object to the prosecutor’s

allegedly misleading statements during closing arguments,

including those statements about phone calls made to Mr. Green’s

cell phone; and, failing to seek the suppression of letters sent

by Mr. Green to Ms. Schwenk.

On November 6, 2017, the SJC denied further appellate

review. Commonwealth v. Green, 478 Mass. 1104 (Mass. 2017).

2. This Federal Habeas Corpus Petition

Mr. Green timely filed the present petition for habeas

corpus under 28 U.S.C. § 2254 on November 2, 2018.7 The petition

7 As relevant here, under 28 U.S.C. § 2244(d)(1), a petitioner in

state custody is bound by a one-year limitations period, which

that the state courts violated his right to due process and to

present a defense by arbitrarily denying his motion for a new

trial and excluding evidence regarding a third-party

perpetrator. Second, he argues that trial counsel was

constitutionally ineffective because he failed to challenge

inculpatory evidence that had no basis in the record and failed

to introduce exculpatory evidence about a third-party

perpetrator.

I will address the merits of each of the two claims in

turn.8

runs from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review.” 28 U.S.C. § 2244(d)(1)(a).

8 As a preliminary matter, I note Mr. Green satisfies the basic

procedural requirements of section 2254.

First, when he filed the present petition, he was “in custody

pursuant to the judgment of a State court.” 28 U.S.C.

§ 2254(b)(1).

He also appears, at least facially, to have “exhausted the

remedies available in the courts of the State” because he has

presented at least some version of the two claims presented here

to the Massachusetts courts. 28 U.S.C. § 2254(b)(1)(A). He

pursued both a direct appeal and collateral relief through a

motion for new trial in the state courts and sought

discretionary review from the SJC. The law does not require

that he pursue any other avenues before turning to the federal

courts for relief. See generally, Rose v. Lundy, 455 U.S. 507

(1982) (holding that state prisoners must seek full relief from

state courts first, before seeking federal habeas relief);

O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (holding that, to

satisfy the complete exhaustion requirement, a state prisoner

must present his claims to the state Supreme Court for

discretionary review); White v. Ragen, 324 U.S. 760 (1945) (per

curiam) (holding that the exhaustion requirement does not

require state prisoners to seek certiorari from the federal

Supreme Court before seeking habeas relief); see also Gunter v.

Under 28 U.S.C. § 2254, if claims presented by Mr. Green

were “adjudicated on the merits in State court proceedings” – as

they were here – I may grant his petition for a writ of habeas

corpus only if the judgment of the state court was “contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States,” or if the decision was “based on an unreasonable

determination of the facts in light of the evidence presented.”

28 U.S.C. § 2254(d). The standard is highly deferential to the

judgment of the state court. As with the exhaustion

requirement, this approach is based on the recognition that “the

federal and state courts are equally bound to guard and protect

rights secured by the Constitution.” Rose v. Lundy, 455 U.S.

507, 518 (1982), and that the federal court should not proceed

in that undertaking until after the state courts have been

afforded the full opportunity to do so themselves.

Maloney, 291 F.3d 74, 82 (1st Cir. 2002) (“Federal habeas review

does not demand that a petitioner in every case ask the state

for collateral relief where he has already fairly presented the

claim and the evidence on direct appeal. . . . However, where

the claim has not been fairly presented on direct appeal, . . .

it should be fairly presented to the state court through a

motion for collateral relief.”) (internal citations omitted)).

I note that the Commonwealth argues here that a portion of Mr.

Green’s ineffective assistance of counsel claim was not properly

presented to the state courts and therefore, has not been

exhausted. I address, and reject, that argument below.

court proceedings” and becomes entitled to deference “if there

is a decision finally resolving the parties’ claims, with res

judicata effect, that is based on the substance of the claim,

rather than on a procedural, or other, ground.” Yeboah-Sefah v.

Ficco, 556 F.3d 53, 66 (1st Cir. 2009). This includes

circumstances in which the state court’s judgment is based on

questions of state law, but where “the state and federal issues

are for all practical purposes synonymous and the state standard

is at least as protective of the defendant’s rights” as the

federal one. Scott v. Gelb, 810 F.3d 94, 99 (1st Cir. 2016).

Moreover, “when a federal claim has been presented to a state

court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to

the contrary.”9 Johnson v. Williams, 133 S. Ct. 1088, 1094

(2013) (citing Harrington v. Richter, 562 U.S. 86, 99 (2011)).

9 In the circumstance where a federal claim is raised in, but not

decided by, the state court and where the presumption that it

was adjudicated has been rebutted, the parallel federal claim

raised in a habeas petition is reviewed de novo. Yeboah-Sefah

v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009).

If the state decision “rests on a state law ground that is

independent of the federal question and adequate to support the

judgment” - for example if “the prisoner had failed to meet a

state procedural requirement” - the federal habeas court cannot

review the federal claim. Coleman v. Thompson, 501 U.S. 722,

729-30 (1991); see also Harris v. Reed, 489 U.S. 255, 265

(1989). ”If the state court’s decision indeed rests on some

other, nonprocedural ground, federal merits review will be

available only if that ground is federal in nature, or

claims, its decision stands, and the petition for habeas corpus

must be denied, unless the judgment was “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States,” or if the decision was “based on an unreasonable

determination of the facts in light of the evidence presented.”

28 U.S.C. § 2254(d).

A 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 different result.” Clements v.

Clarke, 592 F.3d 45, 56 (1st Cir. 2010) (internal quotations and

citations omitted). It is an unreasonable application of

federal law if “the court either identifies the correct

governing legal rule from the Supreme Court’s cases but

unreasonably applies it to the facts” or if it “unreasonably

refuses to extend a principle to a new context where it should

apply.” Id. (internal quotations and citations omitted). In

either circumstance, “[t]he state court’s factual findings are

presumed to be correct unless the petitioner rebuts this

presumption of correctness with clear and convincing evidence.”

‘interwoven’ with federal law.” Lee v. Corsini, 777 F.3d 46

(1st Cir. 2015).

A federal court’s review, then, is confined to the state

court’s application of federal law. Id. at 65-66. In

undertaking that task, the federal habeas court “should ‘look

through’ [an] unexplained [state court] decision to the last

related state-court decision that does provide relevant

rationale” and “presume that the unexplained decision adopted

the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192

(2018). It should defer to that reasoning, even if the habeas

court “concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law

erroneously or incorrectly.” Yeboah-Sefah, 556 F.3d at 65.

Here, because the SJC denied appellate review, Green, 478

Mass. 1104, I look to the reasoning of the Appeals Court, see

Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888, when evaluating

the merits of Mr. Green’s claim. In doing so, I recognize that

this intermediate appellate tribunal in turn relied upon the

fully reasoned judgment of the Superior Court, which I also

consult, in evaluating Mr. Green’s claims in light of the

transcript. See supra note 3.

III. VIOLATION OF DUE PROCESS

Mr. Green argues that both the Appeals Court and the

Superior Court improperly applied the standard set by state law

with respect to his motion for a new trial on the basis of newly

discovered evidence. In particular, he argues, the state courts

the trial of Anthony Russ was not newly discovered and, in any

event, would not have affected the verdict. That decision, he

says, deprived him of the right under Sixth and Fourteenth

Amendments to present a full defense and therefore, entitles him

to a new trial.10

As a preliminary matter, the Commonwealth argues that the

Appeals Court’s denial of a new trial on the basis of newly

discovered evidence was a matter for state law and therefore,

cannot be reviewed in a petition for habeas corpus. As a

generalized proposition, the Commonwealth is correct, but here,

that position is beside the point. In non-death-penalty cases,

“[e]rrors based on violations of state law are not within the

reach of federal habeas petitions unless there is a federal

constitutional claim raised.” Kater v. Maloney, 459 F.3d 56, 61

(1st Cir. 2006) (citing Estelle v. McGuire, 502 U.S. 62, 67-68

(1991)). Consistent with this mandate, I do not evaluate the

10 The Commonwealth does not contest that Mr. Green exhausted

state remedies with respect to his federal constitutional claim.

In his ALOFAR to the SJC, Mr. Green presented the question of

newly discovered evidence in terms of both state and federal law

and specifically cited the decisions of the Supreme Court of the

United States in Holmes v. South Carolina, 547 U.S. 319 (2006)

and Crane v. Kentucky, 476 U.S. 683 (1986). Though the Appeals

Court did not specifically address the federal claim in its

decision, see generally Green, 92 Mass. App. Ct. 1102, 2017 WL

3317888, Mr. Green did, in fact, present the federal claim to

both the Superior Court in his motion for a new trial and the

Appeals Court on review. Consequently, I presume that the

Appeals Court considered and effectively rejected Mr. Green’s

federal claim.

Devarus Hampton constituted newly discovered evidence under

Massachusetts law.11 I consider the question only under the

federal constitution.

11 Under Massachusetts law, evidence is newly discovered if it

was “unknown to the defendant or trial counsel and not

reasonably discoverable at the time of trial.” Commonwealth v.

Cowels, 24 N.E.3d 1034, 1043 (Mass. 2015). To prevail under

state law on a motion for a new trial on the basis of newly

discovered evidence, a criminal defendant must not only show

that the evidence was “unknown and unavailable at the time of

trial despite the diligence of the moving party” but also that

the evidence was material, meaning it was “relevant and

admissible but also in the sense that it is important evidence

of such nature as to be likely to affect the result.” Wojcicki

v. Caragher, 849 N.E.2d 1258, 1268-70 (Mass. 2006); see also

Commonwealth v. Grace, 491 N.E.2d 246, 248 (Mass. 1986).

The newly discovered evidence at issue here is the testimony

of Devarus Hampton.

During Mr. Green’s trial, Mr. Hampton initially declined to

answer questions about the shooting but was eventually granted

immunity. He then testified that he understood that he was

shielded from prosecution by that grant of immunity, that he

never spoke to police about the incident, and that he and Mr.

Lampley never spoke about the shooting.

During the trial of Anthony Russ, however, Mr. Hampton

testified that Mr. Lampley had told him that Mr. Lampley wanted

to shoot Rodney Ferguson and confessed that he had been involved

in the shooting. Mr. Hampton also indicated that he did not

fully understand what immunity meant when he testified at Mr.

Green’s trial.

Mr. Hampton subsequently pled guilty to perjury on the basis

of his inconsistent statements regarding his knowledge of the

police investigation after the shooting and his conversations

with Mr. Lampley at the two trials. To support that plea, the

Commonwealth only needed to show that the statements at the two

trials could not both have been true; it did not need to prove

which statement was false.

The Appeals Court, in reviewing the denial of the motion for a

new trial, reviewed the judgment of the Superior Court for abuse

of discretion and held that Mr. Hampton’s testimony at Mr.

Russ’s trial did not amount to newly discovered evidence because

Mr. Green had the opportunity to cross-examine Mr. Hampton.

Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *2. “That

claim — that the Massachusetts rule governing newly discovered

evidence and its application here deprived Mr. Green of due

process under the federal constitution.

The Supreme Court has consistently afforded state and

federal lawmakers “broad latitude under the Constitution to

establish rules excluding evidence from criminal trials.”

Holmes v. South Carolina, 547 U.S. 319, 325 (2006). “This

latitude, however, has limits.” Id. While a state, consistent

with its sovereign authority, may regulate the processes of its

courts as it sees fit, it may not establish rules that deprive

criminal defendants of the protections afforded by the federal

constitution. Id. (“This Court’s cases contain several

illustrations of ‘arbitrary’ rules, i.e., rules that exclude

important defense evidence but that did not serve any legitimate

interest.”).

The right of defendants to have “a meaningful opportunity

to present a complete defense” may not be abridged arbitrarily.

Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotations

and citations omitted). The cornerstone of this right is the

Hampton later testified to a different version of events does

not transform the later testimony into newly discovered

evidence.” Id. Even if it could be said it did, however, the

Appeals Court agreed with the Superior Court that Mr. Green had

not shown that the new evidence would have materially affected

the outcome of the trial given Mr. Hampton’s questionable

credibility, which would have rendered any new testimony

“relatively worthless.” Id. at *2-3.

encounter and survive the crucible of meaningful adversarial

testing.” Id. at 690-91 (internal citations omitted). Part and

parcel of this opportunity is the right of a criminal defendant

to “offer testimony of witnesses and to compel their attendance

if necessary” to assure the defendant’s right to present his

version of the facts “to the jury so that it may decide where

the truth lies.” Washington v. Texas, 388 U.S. 14, 19 (1967).

In a case such as this, where a habeas petitioner argues

that the state court’s application of its own procedural rules

violated his federal right to due process, I must consider

whether either the rules governing a motion for a new trial or

the Appeals Court’s application of those rules “offends some

principle of justice so rooted in the traditions and conscience

of our people as to be ranked as fundamental or transgresses any

recognized principle of fundamental fairness in operation.”

District Attorney’s Office v. Osborne, 557 U.S. 52, 69 (2009);

see also Cooper v. Bergeron, 778 F.3d 294, 305-06 (1st Cir.

2015) (holding that, when a habeas petitioner challenges a state

evidentiary ruling, he must establish “some extreme malfunction

in the state court’s decision[ ] to warrant § 2254 relief.”

(internal quotations omitted)); O’Brien v. Marshall, 453 F.3d

13, 19-20 (1st Cir. 2006) (“[F]ederal rights are violated only

when state rules or particular results are shocking or

indefensible.”).

Green a new trial on the basis of Mr. Hampton’s testimony was so

“shocking or indefensible” as to entitle him to habeas relief.

O’Brien, 453 F.3d at 19-20. Mr. Green does not challenge the

facial validity of the Massachusetts rule governing newly

discovered evidence; nor, I note, would such a claim succeed,

especially because the Massachusetts rule essentially mirrors

the federal one. 12 Compare United States v. Wright, 625 F.2d

12 Under Massachusetts law, a criminal defendant is entitled to a

new trial on the basis of newly-discovered evidence if that

evidence was both “unknown and unavailable at the time of trial

despite the diligence of the moving party” and was “material,

not only in the sense that it is relevant and admissible but

also in the sense that it is important evidence of such a nature

as to be likely to affect the result.” Wojcicki, 849 N.E.2d at

1268-70 (internal citations and quotations omitted). “Although

the judge need not be convinced that the new evidence would

result in a different verdict, it must nevertheless be important

evidence that would have a genuine effect on the jury.” Id. at

1270.

The federal standard is almost identical, and requires a

defendant seeking a new trial on the basis of newly discovered

evidence under FED. R. CRIM. P. 33 to demonstrate that: “(1) the

evidence was unknown or unavailable to the defendant at the time

of trial; (2) failure to learn of the evidence was not due to a

lack of diligence by the defendant; (3) the evidence is

material, and not merely cumulative or impeaching; and (4) it

will probably result in an acquittal upon retrial of the

defendant.” United States v. Wright, 625 F.2d 1017, 1019 (1st

Cir. 1980). “New evidence is material if it has the potential

to alter the outcome of the lawsuit under the applicable legal

tenants.” United States v. Hernandez-Rodriguez, 443 F.3d 138,

145 (1st Cir. 2006). The question of materiality under federal

law thus dovetails with the question whether newly discovered

evidence will “probably result in an acquittal upon retrial of

the defendant.” Wright, 625 F.2d at 1019.

I note that the standard for materiality under Rule 33 is

different from the standard for materiality with respect to

violations of the rule established by Brady v. Maryland, 373

U.S. 83 (1963). In the context of a Brady violation, the

Wojcicki v. Caragher, 849 N.E.2d 1258, 1268-70 (Mass. 2006).

Instead, Mr. Green argues that the Appeals Court’s application

was unreasonable given the evidence of the inconsistencies

between Mr. Hampton’s testimony at the trial of Mr. Green and at

the trial of Mr. Russ. After a close review of the record, I

cannot agree.

As the Appeals Court notes in its memorandum, Mr. Green had

the opportunity to “thoroughly cross-examine[ ]” Mr. Hampton

during his trial, and to have his counsel elicit testimony

regarding Mr. Hampton’s relationship with Mr. Lampley. During

the course of trial, the Commonwealth made Mr. Hampton available

by granting him broad immunity and the trial judge inquired of

Mr. Hampton to ensure he understood the nature of that immunity

before allowing cross-examination to proceed. Given Mr.

Hampton’s uneasy relationship with the truth, as evidenced by

his later conviction for perjury, it is not clear to me that Mr.

Green would have been able to elicit the kind of testimony he

sought from Mr. Hampton, either during his original trial or in

a subsequent proceeding. Nor is it clear that Mr. Hampton’s

Supreme Court has held that the standard governing materiality

depends on the type of nondisclosure alleged, and the standard

is lower in circumstances where the prosecutor either

deliberately adduces perjured testimony or fails to provide

specific evidence requested by defense counsel. See United

States v. Agurs, 427 U.S. 97, 106-07 (1976). Mr. Green has not

raised a Brady claim here.

especially because Mr. Lampley testified during Mr. Green’s

trial that he was aware of the police investigation and of the

fact that a canine unit tracked suspects in the shooting to his

residence.

I certainly cannot say that the judgment to this effect by

the Superior Court judge, who actually observed Mr. Hampton on

the stand, was manifestly unreasonable such that it should now

be rejected by a federal court on habeas review.

Moreover, if I accept Mr. Green’s contention that the

testimony of Mr. Hampton in the Russ trial should have been

treated as newly discovered evidence, I still cannot accept his

argument that the Appeals Court’s determination regarding

prejudice was arbitrary or unreasonable. Mr. Green is correct

that the Appeals Court evaluated the question of prejudice by

considering whether “a jury exposed to [the newly discovered]

evidence would have reached a different conclusion.” Green, 92

Mass. App. Ct. 1102, 2017 WL 3317888 at *2. He is also correct

this formulation is linguistically distinct from one articulated

by the SJC, which asks whether the evidence “would also be a

real factor with the jury in reaching a decision.” Wojcicki,

849 N.E.2d at 1268. However, this strikes me as a distinction

without meaningful difference, especially because the SJC has

consistently indicated that newly discovered evidence must be

“material” in order to entitle a defendant to a new trial. See

Appeals Court’s decision was so unreasonable that it deprived

Mr. Green of a meaningful opportunity to present a defense.

Indeed, the “would-have-reached-a-different-conclusion” standard

applied by state law is essentially identical to the federal

standard.13 See e.g., Wright, 625 F.2d at 1020; United States v.

Connolly, 504 F.3d 206, 212-13 (1st Cir. 2007) (distinguishing

between the standard applied to motions for new trial on the

basis of a Brady violation and the standard on the basis of

newly discovered evidence and holding that a motion for a new

trial on the grounds of newly discovered evidence requires “an

actual probability that the result would have been different”

had the newly-discovered evidence been presented to a jury).

Consequently, I will not grant habeas relief on the basis

of Mr. Green’s due process claim.

13 Though the Appeals Court did not explicitly mention this, it

bears noting that its determination is bolstered when, as here,

the Commonwealth has proceeded on a joint venture theory with

respect to a murder charge. Even if Mr. Hampton had provided

evidence that Mr. Lampley wanted to kill Rodney Ferguson and had

actually shot into the house at 36 General Patton Drive, such

evidence would not exonerate Mr. Green or otherwise undermine

the reliability of the jury verdict. Mr. Green also never

raised a Brady claim, so there is no suggestion that the

Commonwealth had control over the inconsistencies in Mr.

Hampton’s testimony or of any other evidence that could have

swayed the jury in Mr. Green’s trial. From all that appears,

the Commonwealth did not learn of evidence regarding Mr.

Hampton’s inconsistencies until he testified at the subsequent

Russ trial.

Mr. Green also seeks habeas relief on the separate basis

that his trial counsel was constitutionally ineffective. In

particular, Mr. Green points to five specific decisions taken by

his trial counsel that he contends rendered trial counsel

ineffective:

(A) Trial counsel failed to object contemporaneously to the

Commonwealth’s claims during its closing argument that Mr. Green

made several phone calls, though the calls did not appear in any

phone records;

(B) Trial counsel failed to challenge the Commonwealth’s

claim that Mr. Green used a particular phone despite a lack of

record evidence;

(C) Trial counsel failed effectively to challenge the

Commonwealth’s claim, through its expert, that DNA evidence

taken from the crime scene did not exclude Mr. Green;

(D) Trial counsel failed to introduce evidence that Mr.

Lampley had lied about his alibi to police; and,

(E) Trial counsel did not seek to suppress or otherwise

object to the introduction of letters written by Mr. Green to

his then-girlfriend Ms. Schwenk and suggests that trial counsel

was ineffective for doing so.

At the threshold of addressing the merits of the

ineffective assistance of counsel claim, the Commonwealth also

argues that Mr. Green did not properly exhaust his claims

either separately or together. I will address the question of

exhaustion more fully before turning to the merits of the

specific ineffectiveness claim.

Under 28 U.S.C. § 2254, a state prisoner is obligated “to

exhaust the remedies available in the courts of the State”

before seeking habeas review from the federal courts. 28 U.S.C.

§ 2254(b)(2); see also Rose v. Lundy, 455 U.S. 507 (1982). “The

exhaustion doctrine is principally designed to protect the state

courts’ role in the enforcement of federal law and prevent

disruption of state judicial proceedings.” Lundy, 455 U.S. at

518. The doctrine derives from the principle of comity and

reflects recognition that, consistent with our system of

federalism, the state courts “are to be given the opportunity to

correct alleged violations of prisoners’ federal rights” before

the federal courts intervene. Duncan v. Henry, 513 U.S. 364,

365 (1995) (per curiam). Consequently, in order for me to reach

the merits of Mr. Green’s ineffectiveness claims, they must

first have been “fairly presented” to the state courts. Picard

v. Connor, 404 U.S. 270, 275 (1971); see also Gagne v. Fair, 835

F.2d 6, 7 (1st Cir. 1987).

Under the exhaustion requirement, “the legal theory

[presented] in the state and federal courts must be the same,”

even if not expressed in precisely the same terms. Gagne, 835

F.3d at 7. The key metric is whether “the constitutional

habeas petition and in the state court proceedings,

respectively, [is] substantially the same.” Scrapa v. Dubois,

28 F.3d 1, 6 (1st Cir. 1994). To this end, the First Circuit

has highlighted four methods through which a petitioner may

satisfy the exhaustion requirement: he may

(1) cit[e] a specific provision of the Constitution;

(2) present[ ] the substance of a federal constitutional

claim in such a manner that it likely alerted the state

court to the claim’s federal nature; (3) [rely] on

federal constitutional precedents; and, (4) claim[ ] a

particular right specifically guaranteed by the

Constitution.

Gagne, 835 F.3d at 7.

A petitioner may also satisfy the exhaustion requirement —

even if he cites purely to state law — if “the state system

applied the federal Constitution” or if the state law is

otherwise practically indistinguishable from federal law.

Nadworny v. Fair, 872 F.2d 1093, 1102-03 (1st Cir. 1989); see

also Scrapa, 38 F.3d at 8.

Regardless of the method used, the First Circuit has

explained, a Petitioner’s claim is only exhausted if “it is more

likely than not that a reasonable jurist would recognize the

constitutional dimension of the petitioner’s claim, given the

manner in which those claims were presented.” Barresi v.

Maloney, 296 F.3d 48, 51-52 (1st Cir. 2002). Under this

standard, in order to address a federal habeas corpus petition

arising from Massachusetts state courts, the “appealed issue

for exhaustion purposes unless the applicant has raised it

within the four corners of the ALOFAR.” Mele v. Fitchburg Dist.

Ct., 850 F.2d 817, 823 (1st Cir. 1988). Thus, I look only to

the ALOFAR to determine whether Mr. Green has in substance

fairly presented his ineffective assistance of counsel claim to

the state courts for resolution.

I find that he has. Mr. Green, in his section concerning

ineffective assistance in the ALOFAR, specifically pointed to

trial counsel’s failure to address the prosecutor’s statements

during closing arguments and to expert testimony regarding DNA

analysis. He contended, albeit briefly, that his trial

counsel’s failure to present Lampley’s admission that he had

lied about his alibi falls within the definitions of

ineffectiveness under the Sixth and Fourteenth Amendments to the

federal constitution and Article 12 of the state Declarations of

Rights. He also at least referenced trial counsel’s failure to

seek the suppression of the letters written to Ms. Schwenk as a

basis for his ineffective assistance claim, though his actual

discussion of the letters seems to focus more closely on the

question of suppression itself, a question which the Appeals

Court expressly considered on the merits.14 Consequently, I find

14 I recognize that of the five bases for ineffective assistance,

this is the one that has least clearly been presented to the

SJC. The ALOFAR includes reference to the letters in the

section dealing with the ineffective assistance claim, but the

assistance claim in his ALOFAR.

Though Mr. Green’s focus in both sections of his ALOFAR is

on Massachusetts state law governing ineffective assistance of

counsel, he cited, albeit obliquely and in passing, to the

federal standard governing this area. The First Circuit has

also acknowledged that Massachusetts law explicitly incorporates

federal law with respect to ineffective assistance of counsel

claims. Scrapa, 38 F.3d at 8; see also Sleeper v. Spencer, 510

F.3d 32, 39-40 n. 2 (1st Cir. 2007).

Consequently, I conclude that Mr. Green fairly presented

his federal claim for ineffective assistance of counsel to the

state courts and therefore, that I may consider this claim on

the merits.

The Supreme Court has long recognized “that the Sixth

Amendment right to counsel exists, and is needed in order to

protect the fundamental right to a fair trial.” Strickland v.

Washington, 468 U.S. 668, 685 (1984). “The right to counsel,”

it has explained, “plays a crucial role in the adversarial

paragraph discussing the letters focuses on why they should have

been suppressed, is not particularly coherent, and does not cite

case law. However, because the Appeals Court dealt with the

suppression issue under the Fourth Amendment, as incorporated

into Massachusetts state law, and because the letters were

referenced in the ALOFAR in Mr. Green’s discussion of the

reasons he questioned trial counsel’s effectiveness, I am

prepared to accept the proposition that there is enough here to

say that the question was at least presented to the SJC.

necessary to accord defendants the ample opportunity to meet the

case of the prosecution to which they are entitled.” Id.

Consequently, criminal defendants are entitled not only to a

lawyer, but an effective one.

Under Strickland v. Washington, 468 U.S. 668 (1984), a

prisoner seeking to show that trial counsel was ineffective must

demonstrate “deficient performance by counsel resulting in

prejudice.” Rompilla v. Beard, 545 U.S. 374, 380 (2005). To

satisfy the first prong, a petitioner must show “that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 468

U.S. at 687. “The question is whether the attorney’s

representation amounted to incompetence under the prevailing

professional norms, not whether it deviated form the best

practices or most common customs.” Harrington v. Richter, 562

U.S. 86, 105 (2011); see also Rompilla, 545 U.S. at 380. In

most circumstances, then, courts will be highly deferential to

the strategic decisions made by trial counsel because “[u]nlike

a later reviewing court, the attorney observed the relevant

proceedings, knew materials outside the record, and interacted

with the client, with opposing counsel, and with the judge.”

Harrington, 562 U.S. at 105.

It bears emphasizing that even if counsel is deemed to be

ineffective, a petitioner is not entitled to relief unless he

“counsel’s errors were so serious as to deprive the defendant of

a fair trial,” thereby rendering the result unreliable.

Strickland, 468 U.S. at 687. In the absence of a clear conflict

of interest between the defendant and trial counsel, the

defendant is obligated to “affirmatively prove prejudice.” Id.

at 693.

Here, Mr. Green points to five tactical decisions made by

trial counsel that, he argues, rendered trial counsel

constitutionally ineffective.

Though I have already determined that all five bases have

been exhausted, the Appeals Court only considered explicitly

that with respect to Mr. Lampley’s alibi in the context of an

ineffective assistance claim. Green, 92 Mass. App. Ct. 1102,

2017 WL 3317888 at *3. It addressed others under the state’s

criminal procedure rules. Id. at *5-6. However, because all

the errors alleged in this petition were presented to the

Appeals Court as substantive bases from which to find trial

counsel ineffective, I must presume that the Appeals Court

considered, and rejected, the various merits arguments,

especially where I find no basis to assume the contrary.

Johnson v. Williams, 133 S. Ct. at 1094.

Consequently, in reaching the merits of the federal claims,

I defer to the Appeals Court’s implicit judgment unless it is

law.” 28 U.S.C. § 2254(d)(1).

(A)&(B) Arguments Regarding Phone Calls

Mr. Green argues that trial counsel was constitutionally

ineffective because he failed, during the Commonwealth’s closing

arguments, to object to statements that Mr. Green made several

phone calls on the day of the shooting despite the fact that the

statements were unsupported by evidence on the record. He

similarly argues that trial counsel failed to challenge the

Commonwealth’s claim that Mr. Green used a particular phone.

Because of their similarity, I address these two claims

together.

Mr. Green argued both in this court and before the Appeals

Court that the Commonwealth’s case against him was entirely

circumstantial and that the prosecutor tried to make his case

appear stronger by materially misleading the jury during closing

argument. Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at

*5-6. In particular, he points to statements by the

Commonwealth during closing arguments that suggested to the jury

Mr. Green made several phone calls to Jill Parsons and Jessica

Schwenk on the day of the shooting and that he used a phone

number registered to Mary Nunn Evans. Green, 92 Mass. App. Ct.

1102, 2017 WL 3317888 at *5. His counsel, Mr. Green argues, was

constitutionally ineffective because he failed to object to

statements.

As a preliminary matter, I note that the Appeals Court

specifically found that the statements by the Commonwealth were

not improper under Massachusetts law. Id. at *6 (“In closing

arguments, a prosecutor may analyze the evidence and suggest

reasonable inferences the jury should draw from that

evidence.”). The Commonwealth elicited live testimony from both

Ms. Parsons and Ms. Schwenk during trial to support its position

that Mr. Green made and received several phone calls the day of

the shooting. Id. It also found that the Commonwealth’s

suggestion that Mr. Green used the phone registered to “Mary

Nunn Evans” was reasonable given the evidence of record.15 Id.

Consequently, even if trial counsel’s failure to object to these

statements and to introduce telephone records raised the specter

of incompetence, I cannot say that Mr. Green was prejudiced.

The determination of whether to believe the testimony elicited

from Ms. Parsons and Ms. Schwenk regarding phones calls is a

question left for the jury, and trial counsel’s tactical

decisions during closing arguments, even if unreasonable, did

not constitute a “breakdown in the adversary process that

15 The phone records for a phone number registered to “Mary Nunn

Evans,” along with phone records for a phone that Ms. Schwenk

testified belonged to her were introduced into evidence at

trial. Both Ms. Schwenk and Ms. Parsons also testified about

these phone calls on the stand.

at 687.

Mr. Green has provided no indication that trial counsel’s

failure to object during the Commonwealth’s closing arguments

constituted anything more than a reasonable, tactical decision

based on his professional judgment.16 There is no indication in

the record, and certainly Mr. Green does not point me to

anything, to suggest that trial counsel did not discover the

records or should have objected to their introduction into

evidence. Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at

*5-6. At most, then, Mr. Green’s objection to trial counsel’s

conduct can be characterized as a general concern that trial

counsel did not speak up and more aggressively argue to the jury

that Mr. Green was not responsible for the phone calls and did

not have access to the phone number registered to “Mary Nunn

Evans.” In the absence of anything more, I cannot say that

trial counsel acted in error. I certainly cannot say that trial

counsel’s conduct was so egregious as to constitute ineffective

assistance. Moreover, a review of the transcript satisfies me

that trial counsel was quite zealous in his various arguments in

support of the defendant’s litigation position.

16 My reading is that the statements were proper given the

testimony in evidence and did not point to anything that had

been excluded from the jury’s consideration or otherwise suggest

an improper inference.

Mr. Green also argues that trial counsel failed to object

to a statement made by the Commonwealth’s expert that Mr. Green

could not “be included or excluded from a DNA result” taken from

a sample found on a glove recovered at the scene of the crime.17

The Appeals Court was clear that, under Massachusetts law,

the admission of evidence of DNA from one glove in this case

was, as a general proposition, improper because it was

irrelevant. Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at

*6. I do not, however, find that the Appeals Court’s further

determination that Mr. Green was not prejudiced by the admission

of inconclusive DNA evidence was unreasonable or contrary to

federal law. Indeed, the Appeals Court specifically held that

there would have been “no substantial risk of a miscarriage of

17 During trial, the Commonwealth called Kristin Zaramba, a

chemist at the Massachusetts State Police Crime Lab, who

testified that she compared DNA samples taken from a glove and a

black hoodie recovered from the scene of the incident with known

samples from Mr. Green, Mr. Lampley, and Mr. Hampton. Ms.

Zaramba testified that the results from the glove yielded

inconclusive results but that the results from the black hoodie

excluded the three men. During Closing Arguments, the

Prosecutor referenced Ms. Zaramba’s testimony, stating that the

DNA test on the glove was inconclusive, but pointed to one of

the letters written by Mr. Green and offered into evidence which

mentioned the glove. The Prosecutor suggested Mr. Green knew

about the glove because it belonged to him and suggested that

Mr. Green’s statements in the letters were also “completely

consistent with the test that’s inconclusive for it to be Mr.

Green’s [DNA] on the glove[.]” Following closing arguments, Mr.

Green’s trial counsel objected to these statements as assuming

facts not in evidence, but the objection was overruled. There

does not appear to have been any contemporaneous objection to

Ms. Zaramba’s testimony.

Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *6.

Consequently, even if trial counsel was constitutionally

ineffective for failing to seek to exclude expert testimony that

the DNA evidence was inconclusive, this error was, as the

Appeals Court determined, harmless. Mr. Green does not make the

necessary showing of prejudice to succeed on this basis.

This lack of prejudice would not necessarily mean that

trial counsel’s failure to undertake exclusion of the evidence

rendered him constitutionally ineffective. Indeed, trial

counsel did object to the Commonwealth’s statements during

closing arguments that speculated as to the source of the DNA

found on the glove. The fact that the objection was

unsuccessful does not render trial counsel ineffective. Nor

does his failure to seek the complete exclusion of expert

testimony on the subject, especially when some of that testimony

was exculpatory. Consequently, I cannot say that trial

counsel’s conduct was objectively unreasonable “under prevailing

professional norms.” Rompilla, 545 U.S. at 380.

(D) Mr. Lampley’s Alibi18

Mr. Green argues that his trial counsel was

constitutionally ineffective because he failed to adduce

18 Unlike its treatment of the other decisions challenged in the

petition before me, the Appeals Court dealt squarely with the

question whether trial counsel was ineffective for failing to

introduce this testimony.

day of the shooting.19 In particular, Mr. Green argues that his

trial counsel should have tried to introduce evidence either in

the form of testimony or in the form of the polygraph report

that Mr. Lampley lied about his whereabouts.

However, as with his other arguments relating to

ineffective assistance of counsel, Mr. Green’s argument here

ultimately fails. As the Appeals Court pointed out, trial

counsel did, in fact, call Mr. Lampley to testify and questioned

him repeatedly about his statement to police that he lied about

his alibi. Trial counsel also sought to refresh Mr. Lampley’s

recollection with the polygraph report to elicit the kind of

testimony Mr. Green believed should have been provided to the

jury, though the trial judge did not allow the admission of the

report itself. Trial counsel represented in open court that he

intended to call the officer who conducted Mr. Lampley’s

polygraph exam to testify about his impression of Mr. Lampley

during the polygraph exam. But, after speaking to the officer,

trial counsel believing that the officer had no recollection of

19 When he was initially interviewed by police, Mr. Lampley told

police officers that he had gone for a walk in the neighborhood

with his girlfriend the night of the shooting. He subsequently

took a polygraph test during which he was asked again about his

whereabouts on the night of the shooting. A later police report

stated that “the examinee admitted to lying about his alibi.”

Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *3. The

report produced as a result of the polygraph exam also indicated

that the examinee “was attempting deception” when he gave

certain answers.

meaningful testimony; he ultimately chose not to call the

officer. Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *3.

The Appeals Court found, and I agree, that it is not clear

what else a reasonable lawyer in these circumstances may be

required to do. However, even if Mr. Green could carry his

burden and show that trial counsel was constitutionally

ineffective for failing to call the officer to testify or

otherwise to push for the admission of polygraph report evidence

that Mr. Lampley lied about his alibi, he still cannot

demonstrate prejudice. Under Massachusetts law, the polygraph

report was inadmissible as hearsay, and indeed, the trial judge

stated clearly that he would not allow the parties to adduce

evidence of a polygraph report under this rule. The report also

would not have fallen into the exception for past recollections

recorded because “[t]he defendant has not shown that he can

satisfy the third requirement – that is, that [the officer]

could testify that the statement, ‘examinee admitted to lying

about his alibi, was true [when made].’” Id. (referencing

Commonwealth v. Nolan, 694 N.E.2d 350, 352 (Mass. 1998)).

Furthermore, even if the testimony could be admitted, the

Appeals Court held, and I do not disagree, that it would have

impeached Mr. Lampley through cross-examination.20 Id. at *4.

Based on my reading of the record, I cannot say that the

Appeals Court’s judgment was patently unreasonable and that

trial counsel was constitutionally ineffective for failing to

introduce statements by Mr. Lampley that he had lied about his

alibi.

(E) The Letters

For the sake of completeness, I also briefly address Mr.

Green’s argument that trial counsel should have sought to

exclude letters sent by Mr. Green to Ms. Scwhenk during the

period of his incarceration. Though this claim has not been

squarely presented to me, it is mentioned at various points in

Mr. Green’s petition for habeas relief, and was presented to

both the Appeals Court and the SJC.

As the decision of the Appeals Court indicates, trial

counsel contemporaneously objected to the Commonwealth’s

reference to the letters during its closing argument but only

20 I note that I do not find evidence that Mr. Lampley lied about

his alibi to be material in this context. Several witnesses,

including Mr. Lampley himself, testified about his ongoing feud

with Rodney Ferguson, one of the other residents in the house at

the time of the shooting. Moreover, there was testimony that

Mr. Lampley was near the scene of the shooting immediately after

it took place. There is also some suggestion, though it was not

put before the jury, that Mr. Lampley was not being entirely

honest on the stand about his recollection of his interaction

with police and the statements he made to law enforcement

regarding his alibi.

See Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *5; cf.

supra note 4.

Though trial counsel did not seek to suppress the letters,

see supra note 5, I cannot say that his failure to do so

rendered him constitutionally ineffective, especially in light

of significant discussions between counsel, the prosecutor and

the trial court concerning which letters (and what portion of

their contents) would be shown to the jury and admitted into

evidence. Mr. Green has provided no evidence, or even argument,

that a reasonable lawyer would have filed a motion to suppress

the letters under these circumstances or would have done more to

exclude the letters and their contents from the jury’s

consideration. Even if a reasonable lawyer would have done so,

such a motion ultimately would have been unsuccessful because

Mr. Green lacked standing to object to the seizure of the

letters, Green, 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *4,

and because the letters did not constitute the fruits of an

improper police interrogation. There was no cognizable

prejudice from their admission.

(F) Trial Counsel’s Conduct in the Aggregate

Finally, even if the decisions made by trial counsel were

not individually egregious, I recognize they might, in the

aggregate, support the conclusion that trial counsel was

constitutionally ineffective. See United States v. Sepulveda,

insufficient in themselves to necessitate a new trial, may in

the aggregate have a more debilitating effect.” (citing, inter

alia, Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir. 1978))); see

also Harrington, 562 U.S. at 111. In such circumstances, claims

of cumulative error are general in nature, and “[a] reviewing

tribunal must consider each such claim against the background of

the case as a whole, paying particular weight to factors such as

the nature and number of errors committed; their

interrelationship . . . ; and the strength of the government’s

case.” Sepulveda, 15 F.3d at 1196.

Apart from the fact that the ineffective assistance claim

is not presented to me in this form, I find that the doctrine

does not support Mr. Green’s claims for ineffective assistance

of counsel. The majority of the so-called errors Mr. Green

points to were strategic decisions by trial counsel to forego

certain objections based on the state of the law at the time of

trial. While they may have been accompanied by a result that

was adverse to Mr. Green, I cannot say, based on the record

before me, that trial counsel’s strategic judgment or his degree

of aggressiveness in presenting the defendant’s litigation

position was unreasonable given the circumstances.

Moreover, even if the decisions taken together could have

“amounted to incompetence under prevailing professional norms,”

Harrington, 562 U.S. at 1105, Mr. Green has not provided any

At most, he suggests that the jury verdict would have been

different because the jury acquitted his co-defendant Mr. Russ.

However, this is not enough to show that Mr. Green was, in fact,

prejudiced by the decisions made by trial counsel during his own

trial; nor is it sufficient to render the Appeals Court’s

judgment denying his ineffective assistance claim unreasonable.

Consequently, I will deny Mr. Green’s petition for habeas

relief on the basis that his trial counsel was constitutionally

ineffective.

V. CONCLUSION

For the foregoing reasons, the petition for a writ of

habeas corpus is DENIED and the Clerk is directed to enter a

judgment of dismissal.

/s/ Douglas P. Woodlock_________

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE