# Green v. Kenneway

> District Court, D. Massachusetts · July 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10197880

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** July 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10197880

## How later opinions describe it (automated extraction)

- 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.”
- 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)
- holding that, to satisfy the complete exhaustion requirement, a state prisoner must present his claims to the state Supreme Court for discretionary review

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197880. Public record. Not legal advice.