Corbin v. Kenneway

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

*

MICHAEL T. CORBIN, *

*

Petitioner, *

*

Civil Action No. 18-cv-12060-ADB

v. *

*

STEVEN KENNEWAY, *

*

Respondent. *

MEMORANDUM AND ORDER

BURROUGHS, D.J.

In May 2013, a Suffolk County jury convicted Petitioner Michael T. Corbin of first

degree murder and a number of firearm offenses. He was subsequently sentenced to life in

prison without the possibility of parole. On October3, 2018, afterthe Massachusetts Supreme

Judicial Court (“SJC”) affirmed his convictionand theUnited States Supreme Court denied his

petition for awrit of certiorari,Corbin petitioned Respondent Steven Kenneway (“Respondent”)

for a writ of habeas corpus pursuant to 28 U.S.C. §2254,[ECF No. 1], attacking his conviction

onmultiplegrounds,see generally[ECF No. 2]. For the reasons set forth below, Corbin’s

petition, [ECF No. 1], is DENIED.

I. FACTUAL BACKGROUND

The SJC provided an account of the facts as the jury could have found them,1 which is

reproduced in relevant part below(including the footnotes from the opinion, although the

numbers do not matchthe original):

1 “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination of a factual issue made by a State court

On July 25, 2011, a couple who lived on the second floor of an apartment building

on Hyde Park Avenue, in the Hyde Park section of Boston, awoke to the sound of

gunshots at around 11:55 P.M. They heard between six and eight gunshots that the

woman believed came from an apartment below. The couple looked out of their

bedroom window, and saw six or seven men running out of the entrance to their

building. The woman telephoned 911 at 11:57 P.M.2

The men split up. Some of them ran straight across Hyde Park Avenue. At that

moment, a passenger in a vehicle approaching the victim’s apartment building saw

three men run in front of her vehicle; one of the men carried what looked like a

white pillow case. The men got into a grey or silver sedan so quickly that a man’s

foot was hanging outside the vehicle as it sped away. None of the witnesses was

able to give more than a general description of the men, except that one man was

heavyset;3 the witnesses could only guess at the race or ethnicity of the men they

observed.

At 12:41 A.M. on July 26, 2011, Boston police responded to the scene and were

directed to the victim’s apartment. They found a large watch on the floor near the

front entrance to the building. [Billie Marie] Kee, dressed in a bloody shirt and

underwear, was found lying face down on the floor just inside the apartment. She

had suffered four gunshot wounds and multiple stab wounds, and she was

pronounced dead at the scene. Kee’s cause of death was gunshot wounds to the

torso and injuries to the lungs, ribs, and spine.

[Kevin] Thomas[, Jr.], dressed in a T-shirt, shorts, and socks, was found in the front

bedroom, lying on his back over a pile of clothing; his legs were bound at the ankles

with black wire. He had suffered seven gunshot wounds and four stab wounds to

his body, and he was pronounced dead at the scene. Thomas’s cause of death was

gunshot wounds to the torso and neck.

The victims’ apartment had been ransacked. Broken glass and blood were on the

floor, clothes were strewn about, and the cabinets and drawers were open in the

kitchen and bathroom. There were no signs of forced entry; the front door was ajar,

with the lock intact, and the back doors were locked from the inside. Although the

officers observed no “land line” telephone in the apartment, they did not recover

shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). This presumption applies with equal

force to findings of fact by state trial and appellate courts. RaShad v. Walsh, 300 F.3d 27, 35

(1st Cir. 2002). The facts can be rebutted only with “clear and convincing evidence to the

contrary.” 28 U.S.C. §2254(e)(1); RaShad, 300 F.3d at 35.

2 This neighbor placed four cellular telephone calls to 911that evening. Only the calls placed at

11:57 P.M. and 12:41 A.M. are relevant here.

3 Fulgiam’s height and weight are listed on his State police fingerprint card as five feet, ten

inches tall and 300 pounds.

any cellular telephones. A curling iron with its cord cut and two knives with

brownish-red stains were found near Kee’s body. The curling iron cord matched

the wire that was used to bind Thomas’s ankles.

In the front bedroom, in a tall bureau, officers found a packet of photographs, two

of which depicted Thomas with [Earl] Fulgiam and Corbin, at Thomas’s apartment,

sitting on the couch in front of stacks of United States currency. Near Thomas’s

body officers found a black backpack with what appeared to be a bag of marijuana

inside.

On July 27, 2011, a subsequent search of the basement revealed two plastic bags of

what appeared to be “crack” cocaine, and two digital scales. Based on all of the

evidence that the police officers had found during their investigation, they surmised

that the assailants were likely known to the victims and that the murders were likely

the result of a drug robbery.

In the front yard, officers recovered a loaded nine millimeter semiautomatic pistol

with a magazine and a loaded .38 caliber silver revolver. A diamond encrusted ring

was found on Hyde Park Avenue.

John Golden, Thomas’s best friend, testified that Thomas sold large amounts of

marijuana and cocaine. On the day of the murders, Golden saw approximately

$5,000 in the bureau. When Golden was shown the photograph depicting Thomas,

Corbin, and Fulgiam with the bundles of cash, Golden estimated the amount to be

between $12,000 and $13,000. Police were able to determine the date of the

photograph as May 11, 2011. Golden also identified the watch and the ring that

had been recovered as belonging to Thomas. Golden described Thomas as being

“paranoid,” so much so that he insisted that even trusted friends call beforecoming

to his apartment.

On July 29, 2011, a latent print from the nine millimeter semiautomatic pistol

recovered from the scene was “individualized,” or matched, to Fulgiam. Thirteen

spent nine millimeter shell casings, eight spent nine millimeter bullets, and four

bullet fragments were recovered from the scene and from the victims. Analysis of

the firearms revealed that the nine millimeter semiautomatic contained a magazine

that held twenty rounds of ammunition; eight were recovered in the magazine. All

of the bullets, bullet fragments, and shell casings had been fired from the nine

millimeter semiautomatic pistol.

A detective learned that the victims’ cellular telephones had not been recovered, so

he requested and obtained traces on both. Thomas’s cellular telephone records

showed that a certain cellular telephone number was listed in Thomas’s telephone

records for July 25, 2011. Police learned that this telephone had been stolen that

afternoon between 4:30 P.M. and 5:30 P.M. The owner told police that he did not

recognize Thomas’s cellular telephone number or the number later identified as

Fulgiam’s cellular telephone number, both of which were listed in his call detail

records for July 25, 2011. The Commonwealth issued administrative subpoenas

for Fulgiam’s cellular telephone call detail records and for a cellular telephone

number ending in 2898, which was later connected to Corbin.4 The police

discovered that Corbin and Thomas had been in contact, via short message service

messages (text messages), or telephone calls, several times on July 25, 2011.

Fulgiam and Corbin also had been in telephonic contact that day.

On August 8, 2011, two detectives interviewed Fulgiam at his home. At this time

the police had not sought an arrest warrant for Fulgiam. Fulgiam told the detectives

that he and Thomas had known one another since the early to mid-2000s, and that

he knew Thomas very well. Fulgiam admitted that he and Thomas were in the drug

business together and that he would meet with Thomas one or two times per month,

at one of their homes to conduct business. He estimated that it had been about one

month since he had last met with Thomas, but could not remember whether it had

been at his home or at Thomas’s home. He last communicated with Thomas via

text message on July 17. Fulgiam had Thomas’s cellular telephone number, and he

stated that he changed his own cellular telephone number two weeks prior5because

a woman had been stalking him. Fulgiam was not aware of Thomas having disputes

with anyone and noted that Thomas had a lot more money than he did. Fulgiam

opined that whoever killed Thomas had to have been close to him.

The two detectives interviewed Corbin at his home on August 10, 2011. At that

time, he was not under arrest. One of the detectives had previously been in

telephonic contact with Corbin,6 who agreed to meet with the detectives. Corbin

toldthe detectives that he had known Thomas since Corbin was thirteen years old.

Corbin was equivocal about when his last communication with Thomas occurred;

he first said it had been a month prior, but later said it could have been weeks or

days before Thomas was killed. He stated that the last time he was in Thomas’s

apartment was on May 1, 2011, but that he had been in the apartment many times.

Corbin mentioned that Thomas was not a showy guy, and that he had a watch and

4 Fulgiam’s call detail and subscriber information was originally obtained through an

administrative subpoena, discussed infra, issued on August 4, 2011. On August 16, 2011,

additional administrative subpoenas issued for both Fulgiam and Corbin’s subscriber and call

detail information. Both Fulgiam and Corbin’s cellular telephone records information, including

call detail information records, subscriber information, cell site location information (CSLI), and,

for Corbin, the content of text messages, were subsequently obtained through a court order

pursuant to 18 U.S.C. § 2703(d) (2006), alsodiscussed infra.

5 The murders occurred exactly two weeks before the day of Fulgiam’s interview.

6 Corbin’s cellular telephone account was not listed in his name, nor did the address given match

where Corbin was living at the time of his interview with police. Corbin’s cellular telephone

service provider, Metro PCS, is an advance pay company which offers a plan providing thirty

days of service for a monthly fee of forty dollars. The company does not conduct a credit check

or verify customer’s identification information.

ring, but only wore them on the weekends. He also noted that Thomas was a smart

and careful person and that one had to inform Thomas before coming to his home.

On September 14, 2011, police learned that fingerprint analysts had individualized

to Corbin’s right thumbprint a latent print found on the curling iron that had been

recovered from the victim’s home. On October 27, 2011, pursuant to a search

warrant, detectives seized Corbin’s cellular telephone ending with the number 2898

(2898 number) and discovered photographs of Fulgiam, as well as both Fulgiam

and Thomas’s numbers programmed into the contact list. That same day, the police

obtained arrest warrants for Corbin and Fulgiam.

* * *

On August 15, 2011, after a review of Thomas’s cellular telephone records, the

Commonwealth sought and received a court order, pursuant to 18 U.S.C.

§2703(d) (2006) (§ 2703[d] order), for the historical cell site location information

(CSLI)7 and other cellular telephone account information for several cellular

telephone numbers that were in contact with Thomas’s cellular telephone on July

25, 2011, the day of the murder.

* * *

Using the § 2703(d) order issued on August 15, the Commonwealth obtained

Corbin’s cellular telephone subscriber and call detail information, CSLI, and text

messages for the period from July 20 through July 30, 2011.

Commonwealth v. Fulgiam, 73 N.E.3d 798,804–07, 809(Mass. 2017).

II. PROCEDURAL BACKGROUND

In May 2013, Corbin was tried, along with his co-defendant Fulgiam, in Suffolk County

Superior Court. Fulgiam, 73 N.E.3d at 804. Thejury convicted Corbin of murder, armed

robbery, carrying an unlicensed firearm, carrying a loaded firearm, and possession of a large

capacity firearm, and he was sentenced to life without the possibility of parole.8 Id.at 804, 804

7 “[CSLI] ‘refers to a cellular telephone service record or records that contain information

identifying the base station towers and sectors that receive transmissions from a [cellular]

telephone.’” Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2, 38 N.E.3d 231 (2015),

quoting Commonwealth v. Augustine, 467 Mass. 230, 231 n.1, 4 N.E.3d 846 (2014) (Augustine

I), S.C., 470 Mass. 837, 26 N.E.3d 709 and 472 Mass. 448, 35 N.E.3d 688 (2015). “‘Historical’

CSLI refers to CSLI relating to and generated by cellular telephone use that has already occurred

at the time of the order authorizing the disclosure of such data.” Augustine I,supra.

8 The Commonwealth dismissed the armed robbery and carrying a loaded firearm charges prior

to sentencing. Fulgiam, 73 N.E.3d at 804 n.3.

n.3. Heappealed his conviction to the SJC, which affirmed on May 5, 2017.9 See generallyid.

In response to Corbin and Fulgiam’s joint petition for rehearing, the SJC amended its opinion but

otherwise denied relief. See generallyid. TheUnited States Supreme Court denied their joint

petition for a writ of certiorari on October 10, 2017. SeeFulgian v. Massachusetts,10 138 S. Ct.

330.

On October 3, 2018, Corbin filed his petition for a writ of habeas corpus. [ECF No.1].

Respondent opposed on March 1, 2019, [ECF No. 18], andon April 23, 2019,Corbin replied,

[ECF No. 22].11

III. LEGAL STANDARD

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

[a]n application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28U.S.C. §2254(d).

To be deemed contrary to clearly established federal law, a state court decision must

announce[]a rule of law that directly contradicts existing Supreme Court precedent

or . . . reach[] a different result than the Supreme Court on materially

indistinguishable facts. An unreasonable application occurs when the state court

9 Corbin’s appeal was consolidated with that of his co-defendant, Fulgiam, who was also

convicted of the same charges after their joint trial.

10 The Supreme Court caption incorrectly reads “Fulgian” instead of “Fulgiam.”

11 Fulgiam filed a similar habeas petition, which Judge Woodlock denied on March 8, 2019. See

Fulgiam v. Kenneway, 364 F. Supp. 3d 93 (D. Mass. 2019); see also Fulgiam v. Kenneway, No.

19-1292, 2020 WL 7488125 (1st Cir. Apr. 13, 2020) (denying certificate of appealability).

identifies the correct governing legal rule . . . but unreasonably applies it to the facts

of the particular state prisoner’s case. Federal habeas relief only provides a remedy

for instances in which a state court unreasonably applies [the Supreme] Court’s

precedent; it does not require state courts to extendthat precedent or license federal

courts to treat the failure to do so as error.

These standards ensure that federal habeas relief will be granted only in cases in

which all fairminded jurists would agree that a final state court decision is at odds

with the Supreme Court’s existing precedents. One consequence of this rule is that

a federal court sitting in habeas jurisdiction may not overrule a state court for

simply holding a view different from its own, when the precedent from [the

Supreme] Court is, at best, ambiguous.

Bebo v. Medeiros, 906 F.3d 129, 134 (1st Cir. 2018) (alterations in original) (internal citations

and quotation marks omitted).

With regard to whether a determination of the facts was unreasonable, the Supreme Court

has noted that “[t]heterm ‘unreasonable’is no doubt difficult to define.” Wood v. Allen, 558

U.S. 290, 301 (2010) (alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 410

(2000). “It suffices to say, however, that a state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance.” Id. “[E]ven if ‘[r]easonable minds reviewing the recordmight disagree’ about the

finding in question, ‘on habeas review that does not suffice to supersede the trial court’s . . .

determination.’” Id. (second alteration in original) (quoting Rice v. Collins, 546 U.S. 333,

341–42(2006)).

“If [§2254(d)’s]standard is difficult to meet, that is because it was meant to be.”

Harrington v. Richter, 562 U.S. 86, 102(2011). “This standard applies, however, only to a

‘claim that was adjudicated on the merits in State court proceedings.’” Pike v. Guarino, 492

F.3d 61, 67 (1st Cir. 2007) (quoting 28 U.S.C. §2254(d)). “If the federal claim was never

addressed by the state court, federal review is de novo.” Id.(citingFortini v. Murphy, 257 F.3d

39, 47 (1st Cir. 2001)). “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 adjudicatedthe claim on the

merits in the absence of any indication orstate-law procedural principles to the contrary.”

Richter, 562 U.S. at 99; see alsoJohnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state

court rejects a federal claim without expressly addressing that claim, a federal habeas court must

presume that the federal claim was adjudicated on the merits—but that presumption can in some

limited circumstances be rebutted.”). To overcome the presumption of adjudication on the

merits, the evidence must lead “very clearly to the conclusion that a federal claim was

inadvertently overlooked in state court . . . .” Johnson, 568 U.S. at 303.

IV. DISCUSSION

In his petition, Corbin advances multiple grounds for relief. Although there is some

overlap, theyfit into two broad categories: (1)violations of the Sixth Amendment’s

Confrontation Clause; and (2) instances of ineffective assistance of counsel. See generally[ECF

No. 2; ECF No. 22].

A. Confrontation Clause

Corbin asserts two separate violations of the Confrontation Clause. First, the

Commonwealth should not have been permitted to introduce a fingerprint card, which it

associated with Corbin. [ECF No. 2 at 21–38]. Second, the Commonwealth’s fingerprint expert

should not have been permitted to testify as to another expert’s verification of her work. [Id. at

38–43]. Respondent maintains that neither alleged violation is a proper ground for habeas relief.

See[ECF No. 18 at 12–24, 34–38].

1. Fingerprint Card

At trial, the Commonwealth presented evidence that the latent fingerprint lifted from the

barrel of the curling iron found near Kee’s body matched the fingerprint from a ten-print card

that the Commonwealth associated with Corbin.12 Fulgiam, 73 N.E.3d at 815–16. As a matter

of Massachusetts evidence law, the trial court admitted the ten-print card under thebusiness

records exception to the rule against hearsay. See id.at 816. Corbinargues that the introduction

of the ten-print card at trial, without accompanying live testimony from the person providing the

fingerprints or the individual who took the fingerprints,was a violation of the Confrontation

Clause because the “statement of identity” on the card (i.e., “My name is ___ and these prints

belong to me”) is testimonial,triggering the right to confrontationunder the Supreme Court’s

Confrontation Clause precedent. [ECF No. 22 at 10–12]. Put slightly differently, Corbin

contests that the fingerprints on the ten-print card are his andmaintains that the card’s admission

as a business record without any live testimony as to theidentity of the person whose fingerprints

are on the card prevented him from being able to meaningfully challenge the Commonwealth’s

attribution of the fingerprints on the card to him.

The SJC considered and rejected Corbin’s Confrontation Clause argument on the merits.

SeeFulgiam, 73 N.E.3d at 819(“Last, the defendants argue that the admission of the ten-print

cards violated the right of confrontation as guaranteed by the Sixth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration of Rights. We disagree.”).13

12 A “ten-print” card is a document including “the ten fingerprint impressions, the name of the

person who is being fingerprinted, typically a signature ofthat person, and other identifying

information, such as date of birth and address.” Fulgiam, 73 N.E.3d at 816. Corbin’s card was

created years before the case commenced, after his arrest for an unrelated incident, and, although

it was missing certain information that ordinarily wouldbe included,such as the signatures of the

individual taking the fingerprints and the individual being fingerprinted, it did include Corbin’s

name, aliases, date of birth, sex, race, place of birth, height, weight, eyeand hair color, and

Social Security number. Id. at 817n.23.

13 The SJC also upheld the trial court’s conclusion that the ten-print card was properly admitted

pursuant to the Massachusetts business records exception to the rule against hearsay. Fulgiam,

73 N.E.3d at 818. This Court is “limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62,68 (1991)

Accordingly, the AEDPA’s highly-deferential standard applies and the Court will grant Corbin

habeas reliefon this groundonly if the SJC’s decision was contrary to,or an unreasonable

application of,clearly established federal law. See28 U.S.C. §2254(d)(1).

The Supreme Court has not squarely addressed whether the introduction of a fingerprint

card,without accompanying testimony from either the person who took the fingerprints or the

person whose fingerprints were taken,violates the Confrontation Clause. Accordingly, to

prevail, Corbin must demonstrate that the Supreme Court has “articulate[d] legal principles that

clearly extend” to the fingerprint card context, Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir.

2016)(internal quotation marks and citations omitted),and that the SJC’s decision here runs

contrary to, or is an unreasonable application of, those principles,id.at 152. He has not met his

burden.

Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall . . . be

confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause,

however,bars the admission only of “testimonial statements of a witness who did not appear at

trial unless he was unavailable to testify, and the defendant had . . . a prior opportunity for

cross-examination,” Crawford v. Washington, 541 U.S. 36, 53–54 (2004), becauseonly

testimonial statements “causethe declarant to be a ‘witness’ within the meaning of the

Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford, 541

U.S. at 51). If a statement is non-testimonial, the Confrontation Clause is inapplicable. United

States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010); see alsoDavis, 547 U.S. at 821

(emphasis added) (citing 28 U.S.C. §2241). Therefore, the Court may not consider Corbin’s

arguments to the extent that he challenges the SJC’s conclusions regarding the Massachusetts

rules of evidence. See, e.g., [ECF No. 2 at 26(“The State Court’s Determination that the Ten

Print Cards Were Business Records Was an Unreasonable Interpretation of the Evidence and Not

Supported By the Record.”)].

(“It is the testimonial character of the statement that separates it from other hearsay that, while

subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation

Clause.”). There is no bright-line rule, however,for determining whether a given statement is

testimonial. In Crawford, the Supreme Court declined to “spell out a comprehensive definition

of ‘testimonial.’” 541 U.S. at 68. Instead, it merely held that “prior testimony at a preliminary

hearing, before a grand jury, or at a former trial” and “police interrogations” were testimonial.

Id. InDavis, the court again declined to “produce an exhaustive classification of all conceivable

statements” in favor of issuing a narrow holding that statements made during the course of police

interrogations are “testimonial when the circumstances objectively indicate that there is no such

ongoing emergency.” 547 U.S. at 822.

SinceCrawford and Davis, the Supreme Court has offered some guidance, but still has

not establishedadefinitive, generally-applicable test. CompareBullcoming v. New Mexico, 564

U.S. 647, 659 n.6 (2011) (“To rank as ‘testimonial,’ a statement must have a ‘primary purpose’

of ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.’”

(alterations in original) (quoting Davis, 547 U.S. at 822)), andMelendez-Diaz v. Massachusetts,

557 U.S. 305, 324 (2009) (“Business and public records are generally admissible absent

confrontation not because they qualify under an exception to the hearsay rules, but because—

having been created for the administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial—they are not testimonial.”), withWilliams v. Illinois,

567 U.S. 50, 86(2012)(Breyer, J., concurring) (noting that lower courts would benefit from a

“generally applicable answer” to the question of how the Confrontation Clause applies to a

“panoply of crime laboratory reports and underlying technical statements”).

In arguing that the SJC’s decision was an unreasonable application of Supreme Court

precedent, Corbin relies primarily onMelendez-DiazandBullcoming,see[ECF No. 2at 21–33],

maintainingthat because the ten-print card was fed into a fingerprint database used to aid the

police in criminal investigations, its primary purpose was to prove the guilt of criminal

defendants, therebyimplicatingthe Confrontation Clause. [Id.at 23–24; ECF No. 22 at 14–15].

His argument is unavailing. Melendez-Diaz and Bullcomingare factually distinguishable and

their application to Corbin’s caseis far from clear.

InMelendez-Diaz, the Supreme Court held that an affidavit “reporting the results of

forensic analysis which showed that material seized by the police and connected to the defendant

was cocaine” was testimonial for Confrontation Clause purposes. 557 U.S. at 307, 310. There,

the affidavit was prepared specifically for that particular prosecution, a fact which the document

itself noted, and the statement contained therein (i.e., that the substance found in the defendant’s

possession was cocaine) was “the precise testimony the analysts would be expected to provide if

called at trial.” Id.at 310–11. Insum, the prosecution sought to substitute a written affidavit for

live, in-person testimony regarding an essential element of the criminal offense. Id.

In Bullcoming,the Supreme Court held that the defendant was entitled to confront the

analyst who actually certified a forensic report stating that the defendant’s blood alcohol level

was higher than the legal limit notwithstanding the fact that another analyst from the same lab

did testify. 564 U.S. at 651–52. As with Melendez-Diaz, in Bullcoming,the statement at issue

was germane to a specific element of the charged offense and the report was prepared in

anticipation of, and specificallyfor, the prosecution. Seeid.at 664–65. Here, Corbin’s ten-print

card was created years before he was charged or tried for the murders of Kee and Thomas.

Fulgiam, 73 N.E.3d at 816. Moreover, there was unrebutted testimony that the card was created

in the ordinary course of business,not for use at Corbin’s trial. Id.at 819, 817n.24. While

police routinely fingerprint individuals as an administrative matter, without an eye towards a

specific criminal prosecution, they do not routinely test substances for drugs or measure blood

alcohol levels in the absence of a criminal prosecution.

Given these material factual differences, Melendez-Diaz and Bullcoming do not

articulate legal principles that clearly lead to the conclusion that the admission of theten-print

cardviolatedthe Confrontation Clause. SeeJenkins, 824 F.3d at 153. To the contrary, multiple

U.S. courts of appeals have held that the introduction of fingerprint cards similar to the one at

issue here does not violatethe Sixth Amendment. See, e.g.,United States v. Williams, 720 F.3d

674, 698 (8th Cir. 2013)(finding no Confrontation Clause issue where “fingerprint cards were

created as part of a routine booking procedure and not in anticipation of litigation”

notwithstanding the fact that the defendant disputed that he had provided the prints on the card);

United States v. Dale, 494 F. App’x 317, 318 (4th Cir. 2012) (findingthat fingerprint card was

non-testimonial); United States v. Diaz-Lopez, 403 F. App’x 199, 202 (9th Cir. 2010) (same). If

anything, existing Supreme Court precedent suggests that admission of fingerprint cards does not

implicate the Confrontation Clause.

In the absence of clear and applicable Supreme Court case law, “fairminded jurists” could

disagree as to the correctness of the SJC’s decision, Richter, 562U.S. at 102, and therefore the

Court cannot find that the SJC’s decisionwas contrary to, or an unreasonable application of,

clearly established federal law.14 Likely v. Ruane, 642 F.3d 99, 102 (1st Cir. 2011) (“If the

14 As noted above, once a court determines that a statement is non-testimonial, the only bar to its

admission is the rule against hearsay. Davis, 547 U.S. at 821(“It is the testimonial character of

the statement that separates it from other hearsay that, while subject to traditional limitations

upon hearsay evidence, is not subject to the Confrontation Clause.”). Becausethe SJC’s

determination that the fingerprint card was non-testimonial was not contrary to, or an

federal law is not clearly established by the United States Supreme Court, then per force the state

court decision cannot be either contrary to or an unreasonable application of clearly established

federal law.”); see alsoWhite v. Woodall, 572 U.S. 415, 426 (2014)(“Section 2254(d)(1)

provides a remedy for instances in which a state court unreasonably applies this Court’s

precedent; it does not require state courts to extend that precedent or license federal courts to

treat the failure to do so as error.”).

2. Expert Testimony

At trial, the Commonwealth’s fingerprint expert, Ms. Tolan,testified regarding the

ACE-V methodology for fingerprint individualization,15 which she usedto match the latent

fingerprint on the curling iron to a print on Corbin’s ten-print card. Fulgiam, 73 N.E.3d at 821.

The parties do not contest thecontent of Ms. Tolan’s relevant testimony, which was as follows:

Q. Ms. Tolan, I’m [sic] want to show you this board and ask you if you recognize

what’s depicted on this Board?

A. Well, it’s an overall photograph of the curling iron at the crime scene as well as

the latent location photograph of Latent 18A, a picture of latent 18A, and then the

knownimpressions of Michael Corbin.

Q. And what about relative to the lower right-hand corner, what appears down

there?

A. The knownten finger impressions of Michael Corbin.

Q. And does that include the right thumb?

A. Yes.

Q. And whose initials appear on the box containing the known impression of

Michael Corbin’s right thumb?

A. It would be my initials as well as the verifier, Ioan Truta.

* * *

Q. Prior to generating a report, were your findings reviewed by anybody or after

you generated the report?

A. Before.

unreasonable application of, clearly established federal law, this Court is without jurisdiction to

review the SJC’s decision that the card was admissible as a business record as that decision was

a matter of Massachusetts law. SeeEstelle, 502 U.S. at 67–68.

15 ACE-V stands for “analysis, comparison, evaluation, and verification.” SeeUnited States v.

Casanova, 886 F.3d 55, 61 (1st Cir. 2018).

Q. And who were your findings reviewed by?

A. Ioan Truta.

Q. Okay. And as far as Mr. Truta reviewing the individualization, was that

confirmed by Mr. Truta?

A. Yes.

[ECF No. 2 at 39–40(emphasis omitted); ECF No. 18 at 35]. BeforeMs. Tolan testified as to

her ACE-V evaluation of Fulgiam’s fingerprints, Fulgiam’s counsel objectedto any testimony

indicating that Mr. Truta “verified” the fingerprint analysis,and the trial court sustainedthe

objection. Fulgiam, 73 N.E.3d at 821 n.27. Onappeal, both Corbin and Fulgiam argued that the

trial court erred in allowing Ms. Tolan to testifythat Mr. Trutareviewedher work,id.at 821, but

the SJC rejected their arguments, holding that although “[e]xpert testimony as to the opinions of

a second, nontestifying expert constitutes inadmissible hearsay,” no such testimony had been

admitted because the trial court “allowed the analyst’s testimony that the other analyst

‘reviewed’ her work, but did not allow testimony that the second analyst verifiedher work.” Id.

Now, Corbin asserts that the SJC ignored important differences between Ms. Tolan’s

testimony regarding his fingerprints and her testimony regarding Fulgiam’s fingerprints. [ECF

No. 22 at 21; ECF No. 2 at 40–42]. Specifically, Corbin points to Ms. Tolan’s testimony

identifying Mr. Truta as “the verifier” and her answer “yes”to the question,“[a]nd as far as Mr.

Truta reviewing the individualization, was that confirmedby Mr. Truta?” [ECF No. 2 at 39–40].

Corbin presented his Confrontation Clause argument to the SJC. See[SA 78 (Corbin’s

SJC Briefat 50)(“Since Mr. Truta’s opinion was in effect, an out-of-court testimonial statement,

it should not have been allowed into evidence, and its introduction violatedMr. Corbin’s rights

under the 6th Amendment and Article 12 of the Massachusetts Declaration of Rights.”)].16

16 The Court will cite to pages in Respondent’s Supplemental Answer, which was filed manually,

see[ECF No. 10 (Notice of Filing with Clerk’s Office)], as “SA _.”

Although the SJC did not explicitly mention the Confrontation Clausein reaching its conclusion,

instead finding that there was no hearsay, the Court presumes that the SJC rejected the argument

on the merits.17 SeeRichter, 562 U.S. at 99. Accordingly,the AEDPA’s highly-deferential

standard applies and the Court will grant Corbin habeas relief only if the SJC’s decision “was

based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28U.S.C. § 2254(d)(2).

In light of the evidence presentedto it, the SJC’s conclusion was not based on an

unreasonabledetermination of the facts. First,Ms. Tolan’s testimony can be fairly interpreted as

not containinganystatement byMr. Truta at all. In other words, a reasonable interpretation of

Ms.Tolan’s testimony is that she stated only (1) that Mr.Truta’s role was “verifier” and (2) that

he performed his duty with respect to Ms. Tolan’s matching of Corbin’s fingerprint tothe print

on the curling iron.18 SeeWood, 558 U.S. at 301 (“[E]ven if‘[r]easonable minds reviewing the

record might disagree’ about the finding in question, ‘on habeas review that does not suffice to

supersede the trial court’s . . . determination.’”(second alteration in original) (quoting Rice, 546

U.S. at 341–42)). Second, having reasonably found that Ms. Tolan’s testimony did not contain

any statement by an out-of-court declarant, the SJC’s rejection of Corbin’s Confrontation Clause

17 This presumption of adjudication on the merits is furthered bolstered by two facts. First, the

fact that the SJC had already analyzed the Confrontation Clause’s applicability to the ten-print

card suggests that it was fully aware of the Confrontation Clause issue. Second, the case that the

SJC primarily relied on,Commonwealth v. Whitaker, 951 N.E.2d 873(Mass. 2011), included a

holding that the admission of a non-testifying expert’s conclusion “violates thedefendant’s right

of confrontation,” id. at 884, which again indicates that the SJC was aware of the potential

Confrontation Clause implications of Ms. Tolan’s testimony.

18 The question “And as far as Mr. Truta reviewing the individualization, was that confirmed by

Mr. Truta?” is confusing, in part, because the antecedent of “that” is unclear. It does not

necessarily communicate any opinion of Mr. Truta’s. Although one reasonable interpretation is

that Ms.Tolan was saying that Mr. Truta verified (i.e., agreed with) her work, another reasonable

interpretation is that Ms. Tolan was merely saying that Mr. Truta reviewed her work.

argument logically follows. Thus, although the Court may have reached a different conclusion

exercising its independent judgment, the SJC’s decision was still objectively reasonable. See

Gomes v. Silva, 958 F.3d 12, 20 (1st Cir. 2020).

B. Ineffective Assistance of Counsel

Corbin also advances ineffective assistance of counsel as a ground for habeas relief,19

highlighting four alleged deficiencies with his trial counsel: (1) failingto file a suppression

motion with respect toCorbin’s text messages; (2)failingto object to Ms. Tolan’s testimony

regardingMr. Truta’s reviewof her fingerprint individualization; (3) failingto object to

Ms.Tolan’s alleged vouching for the authenticity of the fingerprint card; and (4) failingto

demand a jury instruction regarding the ten-print card’s admission as a business record. See

generally[ECF No. 2].

The clearly established federal law governing ineffective assistance of counsel

claims is the framework established in Strickland. On direct review under

Strickland, a criminal defendant must show that his attorney’s performance was

deficient and that he was prejudiced—deprived of a fair trial—as a result.

Massachusetts applies a functional equivalent to the Stricklanddeficiency standard,

which requires a serious failure by trial counsel, meaning a serious incompetency,

inefficiency, or inattention that has likely deprived the defendant of an otherwise

available, substantial ground of defence. Reviewing courts must indulge a strong

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

professional assistance and represents sound trial strategy.

The Supreme Court has recently reinforced the doubly deferential standard that

applies to a state prisoner’s claims in a federal habeas petition that a state court has

unreasonably applied the Strickland principles. . . . The Court explicitly

emphasized two points. First, the pivotal question in a federal collateral attack

under Strickland is not whether defense counsel’s performance fell below

Strickland’s standard, but whether the state court’s application of the Strickland

standard was unreasonable, that is, whether fairminded jurists would all agree that

the decision was unreasonable. Second, the Strickland standard is a very general

one, so that state courts have considerable leeway in applying it to individual cases.

19 Corbin’s current counsel, who also represented him before the SJC, did not represent him at

trial.

Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) (internal citations and quotation marks omitted).

Additionally, when considering ineffective assistance of counsel claims, courts must consider

defense counsel’s performance holistically. Richter, 562 U.S. at 111(“And while in some

instances ‘even an isolated error’ can support an ineffective-assistance claim if it is ‘sufficiently

egregious and prejudicial,’ it is difficult to establish ineffective assistance when counsel’s overall

performance indicates active and capable advocacy.” (quoting Murray v. Carrier, 477 U.S. 478,

496 (1986))); Kimmelman v. Morrison, 477 U.S. 365, 386 (1986) (“Since ‘[t]hereare countless

ways to provide effective assistance in any given case,’ unless consideration is given to counsel’s

overall performance, before and at trial, it will be ‘all too easy for a court, examining counsel’s

defense after it has proved unsuccessful,to conclude that a particular act or omission of counsel

was unreasonable.’” (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984))). Finally,

“[i]n measuring the quality of counsel’s performance, ‘the reasonableness of counsel’s tactical or

strategic choices’ is evaluated with ‘a heavy measure of deference to counsel’s judgments.’”

Lucien v. Spencer, 871 F.3d 117, 129 (1st Cir. 2017) (quoting Castillo v. Matesanz, 348 F.3d 1,

14 (1st Cir. 2003)).

1. Failure to Move to Suppress Text Messages

At trial, the Commonwealth introduced text messages sent between Corbin’s cellphone

and Thomas’s on the day of the murders.20 Fulgiam, 73 N.E.3d at 810. Onappeal, Corbin

20 Between 2:15 PM and 7:27 PM on the day of the murders, Corbin and Thomas exchanged the

following text messages:

Thomas: “What hapnd bro I need that”

“I need 2 c u like yesterday i have 2 get a whip manana n i def need

that bread i would appreciate if u didnt hold me up”

argued that the Commonwealth unlawfully obtained his text messages and that his trial counsel

was constitutionally deficient because he failedto file a motion to suppress them. Id. at 808.

TheSJC agreed with Corbin that a suppression motion likely would have succeeded because the

Commonwealth did not obtain a search warrant,id.at 810,but nevertheless rejected Corbin’s

ineffective assistance of counsel claim because the admission ofthe text messages did not create

a substantial likelihood of a miscarriage of justice and was unlikely to have influenced the jury’s

conclusion,id.at 814–15.21 The SJC reasoned as follows:

Corbin’s defense was that he was innocent and that Thomas, as a high level-drug

dealer, was in a dangerous business. Corbin claimed that many people knew

Thomas was a drug dealer and, for that reason, he was a target for drug robbery.

Corbin’s argument that the content of his text messages was the only evidence from

“his is what i didnt want 2 happen we discussed this b4 bro straightn

me first remember dnt make it bad bro”

Corbin: “Bro u know i do what i can 2 get u first but i called u. I cant hold

these n*****s up.”

Thomas: “n my bread u feel me wit out me it neva would have been there 2

flip anything”

“U cant hold anyone up when its not there bread thats free money i

should have mine off the top than play with urs not mine bro we

talkd about this ur flip”

Corbin: “I see u going through some thingcause we never kicked it like this.

im going 2 put as much 2gether 4 u not in 2 long”

Thomas: “Good look lol naw cause someone did somethng simular just cause

i say im somewhre u cant assumd my schedule or do ur own thng

thats all im tryna say talk”

“2you when u come bro”

Fulgiam, 73 N.E.3d at 813 n.15.

21 In assessing Corbin’s ineffective assistance claim, the SJC applied the standard that

Massachusetts courts apply when adefendant has been convicted of first degree murder.

Fulgiam, 73 N.E.3d at 809. Under that standard, which is more favorable to the defendant than

the constitutional standard, courts assess whether the alleged lapse “created a substantial

likelihood of a miscarriage of justice.” Id. (citation omitted).Thecourt’s focus is on the

existence of an error and “whether such error was likely to have influenced the jury’s

conclusion.” Id.(internal quotation marks and citationomitted).

which the jury could find a motive and opportunity for Corbin to commit the

murders is belied by the record. Much of the information about Thomas’s status as

a high level-drug dealer came in through other evidence.22

In addition, based on evidence wholly independent of the text messages, Corbin’s

involvement in the murders was not a close question. The discovery of Corbin’s

fingerprint on the barrel of the curling iron found near Kee’s body was highly

inculpatory, as was the evidence of Corbin’s telephonic contact with Fulgiam,

Thomas, and the stolen cellular telephone on the day of the murders. The inference

that Corbin was in possession of the cellular telephone stolen a few hours before

the murders, and that he used this telephone to contact Thomas on multiple

occasions, including within two hours of the murders, also was highly inculpatory.

The jury also heard evidence that Thomas, Corbin, and Fulgiam were involved in

the drug business together and that the murders were likely connected to a drug

robbery. Moreover, although we recognize that trial counsel was faced with the

task of down-playing the impact of the text messages once they were admitted in

evidence, he affirmatively used this content in his closing argument to establish that

(1) Thomas had a significant amount of drugs and money in his apartment most of

the time; (2) Thomas was a “tempting” target for robbery; and (3) the nature of

Thomas’s business was such that persons other than Corbin could have a motive to

kill Thomas. Against the backdrop of this highly incriminating evidence, we cannot

say that the jury’s exposure to Corbin’s text messages likely influenced the jury’s

verdict. Therefore, Corbin cannot meet his burden to establish that trial counsel’s

failure to file a motion to suppress the content of his text messages created a

substantial likelihood of a miscarriage of justice.

Id. at 815.

Because the SJC considered and rejected Corbin’s argument on the merits, the AEDPA’s

doubly deferential standard for assessing ineffective assistance of counsel claims under §2254

22 Thomas’s best friend testified that Thomas was selling “a few thousand dollars” worth of

marijuana per week and approximately $4,000 or $5,000 worth of cocaine per week.

Additionally, that friend testified that it was common in the drug business for a higher level

dealer to supply drugs to “street-level” dealers for sale, and the jury heard evidence that Fulgiam

admitted to being in the drug business with Thomas and that Thomas had a lot more money than

Fulgiam.

applies. Accordingly, Corbin bears the weighty burden of demonstrating that the SJC’s

application of the Stricklandprinciples was unreasonable.23 Jewett, 634 F.3d at 75.

Corbin asserts that the SJC unreasonably applied the Stricklandstandard in holding that

the introduction of the text messages did not influence the jury’s verdict, maintaining that the

text messages were critical to establishing intent, motive, and presence at the crime scene and

that the other inculpatory evidence was deficient for various reasons. [ECF No. 2 at 49–53].

The SJC thoughtfully considered the other evidence and concluded that the suppression of the

text messages was not likely to have influenced the jury’s verdict. Corbin’s attempts to

challengethe SJC’s conclusionare unsuccessful. First, he argues that his latent fingerprint on

the curling iron would have been insufficient to support a conviction because he had been in

Thomas’s apartment on multiple occasions and could have left the print on the iron on suchan

occasion. [Id. at 50]. This argument is undercut by the fact that the print was on the barrel, not

handle, of the curling iron, Fulgiam, 73 N.E.3d at 815, andCorbin’s statement to the police that

he had not been at Thomas’sapartment for months,id.at 806–07.

Second,he asserts that because he contests that the prints on the ten-print card werehis

and that, in any event, his fingerprint expert disputed that the fingerprints matched, the “highly

contested fingerprint evidence, standing alone, was insufficient to establish” Corbin’s presence at

the crime scene. [ECF No. 2 at 51]. Evenassuming that the jury faced “highly contested

fingerprint evidence,” there was other evidence (such as the telephonic contact between Corbin,

23 Because the standard that the SJC applied was more defendant-friendly than the constitutional

standard, by concluding that Corbin’s counsel was not ineffective under that standard, it

necessarily concluded that Corbin’s counsel met constitutional muster.

Fulgiam, and Thomas on the day of the murder)24 supporting the conclusion that Corbin was at

the crime scene. More generally, Corbinattacks the correctness, not the reasonableness, of the

SJC’s decision. SeeRichter, 562 U.S. at 101(“The pivotal question is whether the state court’s

application of the Stricklandstandard was unreasonable. This is different from asking whether

defense counsel’s performance fell below Strickland’s standard.”). Here, the SJC correctly

identified the standard it was to apply and reasonably applied it to the facts at hand, noting with

specificity the inculpatory evidence that existed separate and apart from the text messages. See

Fulgiam, 73 N.E.3d at 815. Underthese circumstances, the Court cannot conclude that

“fairminded jurists” would all agree that the SJC’s decision was unreasonable. Jewett, 634 F.3d

at 75 (quoting Richter, 562 U.S. at 101). Accordingly,Corbin is not entitled to habeas relief

based on his trial counsel’s failure to file a suppression motion.

2. Alleged Failures Related to Fingerprints

As discussed above, at trial, the Commonwealth introduced Corbin’s ten-print card and

expert testimony from Ms. Tolan matching the latent fingerprint on the curling iron to aprint on

the ten-print card. Corbin argues that his trial counsel was constitutionally deficient for failing to

object to Ms. Tolan’s testimony allegedly indicating that Mr. Truta verified her fingerprint

individualizationor heralleged vouching for the authenticity of the ten-print card and also for

not demandinga jury instruction regarding the ten-print card’s admission as a business record.

[ECF No. 2 at 34–37, 38 n.20]. The Court considers each in turn.

24 Corbin also takes issue with the persuasiveness of the telephonic records, arguing, among

other things, that Thomas spoke with multiple people on the day of the murder and that there was

no concrete evidence linking Corbin, as opposed to one of the other six or seven men seen

fleeing Thomas’s apartment building, to the stolen phone. [ECF No. 2 at 51–52].

a. Mr. Truta’s Verification

Corbin asserts that his trial counsel was constitutionally deficient for failing to object to

Ms. Tolan’s testimony allegedly indicating that Mr. Truta verifiedher fingerprint

individualization. [ECF No. 2 at 38–43]. Corbin presented this argument to the SJC, see[SA 77

(Corbin’s SJC Briefat 49 n.38)(“To the extent he should have objected [to Ms. Tolan’s

testimony regarding verification], his conduct constituted ineffective assistance of counsel.”)],

but the SJC did not specifically address it, see generallyFulgiam, 73 N.E.3d 798. Still, given the

Richterpresumption, the Court will apply the AEDPA’s highly deferential standard. Richter,

562 U.S. at 99.

Because the SJC reasonably concluded that Ms. Tolan’s testimony contained no

inadmissible hearsay,supraSection IV.A.2, its decision that Corbin’s counsel was not

constitutionally deficient for failing to object to that testimony was not an unreasonable

application of the Stricklandprinciples,seeJewett, 634 F.3d at 75. Put slightly differently,

because the SJC concluded that Ms. Tolan’s testimony was unobjectionable, Corbin’s counsel’s

failure to object to it was not ineffective. SeeVieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999)

(noting that “counsel’s performance was not deficient if he declined to pursue a futile tactic”).

Even assuming the doubly deferential Strickland-AEDPA standard was not applicable,

reviewing de novo, the Court would still conclude that Corbin’s counsel was not constitutionally

deficient for failing to object to this aspect of Ms. Tolan’s testimony. Corbin’s counsel

attempted to undermine Ms. Tolan’s testimony in other ways. Among other things, he:

(1)objected to foundational questions regarding the creation or maintenance of the ten-print card

and its admission into evidence; and (2)cross-examined Ms. Tolan about the lack of DNA

evidence on the curling iron, the quality and match of the prints, the possibility that the latent

print had been left on the curling iron before the day ofthe murder, and the police’s failure to

compare other latent prints found in the apartment to the prints of other individuals of interest.

[May 14, 2013 Trial Tr. at 62:19–63:18, 67:11–12, 108:7–18, 111:21–112:10, 113:2–19,

115:24–117:4]25; see also Fulgiam, 73 N.E.3d at 821. Corbin’s counsel’s “overall performance

indicates active and capable advocacy,” Richter, 562 U.S. at 111,and the Court must afford

significant deference to his strategic choices, Lucien, 871 F.3d at 129. Accordingly, his failure

to object to Ms. Tolan’s ambiguous testimony, seesupranote 18,didnot renderhis

representationconstitutionally deficient.

b. Ms. Tolan’s Alleged Vouching

Corbin argues that his trial counsel was constitutionally deficient for failing to object to

Ms. Tolan’s characterization of the prints from the ten-print card as Corbin’s “known” prints.

[ECF No. 2 at 34–35]. That is, because Corbin contests that the prints on the ten-print card

bearing his name are actually his, he maintains that his counsel should have objected to

Ms.Tolan’s testimony,which reinforced the association between the ten-print card and him.26

He presented this argument to the SJC,see[SA 72 (Corbin’s SJC Briefat 44)(“Although trial

counsel vigorously challenged the validity of the 10 print card, he failed to object to the repeated

references by [Ms. Tolan] that the card contained the ‘known’ prints of Mr. Corbin . . . Counsel’s

failure to object was so manifestly unreasonable as to be unprotected by the labels of trial

25 Trial transcripts were filed in Respondent’s Supplemental Answer but do not have “SA”

pagination. Accordingly, the Court will cite tothe transcripts as “[Date] Trial Tr. at [Page:

line].”

26 Respondent counters that Ms. Tolan’s references to a “known” print “were simply shorthanded

ways to refer to the ten-print card in discussing her general analytical methodology.” [ECF No.

18 at 28]. The Court need not decide whether Ms. Tolan’s testimony actually associates Corbin

with the prints on the ten-print cardbecause, even assuming it did, Corbin’s argument fails.

strategy or trial tactics.” (internal quotation marks omitted))], and the SJC held that because of its

conclusion that the ten-print card was properly admitted under the business records exception, it

did not need to “address Corbin’s argument that trial counsel’s failure to object to the validity of

the ten-print card constituted ineffective assistance of counsel.” Fulgiam, 73 N.E.3d at 818 n.25.

Although the SJC used the words “need not address,” id.,its statement is best viewed as an

adjudication on the merits. Havingfound that the ten-print card was admissible, the SJC

logically concluded that any objection to the validity of the ten-print card would be meritless and

Corbin’s counsel could not therefore havebeen deficient for failing to makeone. For that

reason, the doublydeferential Strickland-AEDPA standard applies. Because the SJC concluded

that the Massachusetts business record exception applied to the ten-print card, which associated

the fingerprints on that card with Corbin, its decision that Corbin’s counsel was not

constitutionallydeficient for failing to object to testimony further associating Corbin with those

fingerprints was not an unreasonable application of the Stricklandprinciples. SeeJewett, 634

F.3d at 75.

Even ifthe doubly deferential Strickland-AEPDA standard did not apply, reviewing de

novo, the Court would still conclude that Corbin’s counsel was not constitutionally deficient for

failing to object to this aspect of Ms. Tolan’s testimony. As noted above, supraSection

IV.B.2.a., Corbin’s counsel sought to undercut Ms. Tolan’s testimony in other ways.

Additionally, the use of the word “known” was not as prejudicial as Corbin suggests given

Ms.Tolan’s admissions that she obtained Corbin’s “known” print by feeding the latent print into

the fingerprint database, [May 14, 2013 Trial Tr. at 61:18–62:2], andthat she did not personally

collect Fulgiam’s ten-print card fingerprints, [id.at 145:25–146:8]. Moreover, as Respondent

points out, Corbin’s counsel may well have concluded that challenging the admissibility of the

ten-print card itself (on hearsay and Confrontation Clause grounds), as he did, was a more

effective way of advancing his client’s interests and that, once the card was admitted, quibbling

with Ms. Tolan’s word choice would be counterproductive and harm Corbin’s credibility in the

jury’s eyes. [ECF No. 18 at 29]. BecauseCorbin’s counsel’s “overall performance indicates

active and capable advocacy,” Richter, 562 U.S. at 111,andthe Court must defer to his strategic

choices, Lucien, 871 F.3d at 129,the Court concludes that his failure to object to Ms. Tolan’s use

of the word “known” did not result in constitutionally deficient counsel.

c. Jury Instruction Regarding Business Records

Massachusetts law provides that “[w]hen [a business record] is admitted in a criminal

proceeding all questions of fact which must be determined by the court as the basis for the

admissibility of the evidence involved shall be submitted to the jury, if a jury trial is had for its

final determination.” Mass. Gen. Laws ch. 233, § 78. Thefour facts that a jury must find are

that the record was (1) “made in good faith,” (2) “in the regular course of business,” (3) “before

the beginning of the civil or criminal proceeding,” and (4) that it was “the regular course of such

business to make such memorandum or record at the time of such act, transaction, occurrence or

event or within a reasonable time thereafter.” Id. Corbinargues that his trial counsel was

constitutionally deficient for failing toseek, or object to the omission of, a jury instruction

putting the issue of whether the ten-print card was a business record before the jury, as

contemplated by §78. [ECF No.2 at 35–37]. He presentedthis argument to the SJC, see[SA

72–73(Corbin’s SJC Briefat 44–45)(“The jury was never instructed that they should determine

whether the 10 print card was a legitimate business record . . . Counsel was ineffective for failing

to seek such an instruction or objecting to its omission.”)], but the SJC did not specifically

address it, see generallyFulgiam, 73 N.E.3d 798. Nevertheless,because of the Richter

presumption, the Court applies the AEDPA’s highly-deferential standard. Richter, 562 U.S. at

99. Here, wherethe SJC concluded that the Massachusetts business records exception was

applicable, its decision that Corbin’s counsel was not constitutionally deficient for failing to seek

a §78jury instruction was not an unreasonable application of the Stricklandprinciples, see

Jewett, 634 F.3d at 75. In other words, because the exception was applicable, Corbin’s defense

was not prejudiced becausethe jury would have reached the same conclusionhad the instruction

been provided.27

Even assuming the doubly deferential Strickland-AEPDA standard was not applicable,

reviewing de novo, the Court would still conclude that Corbin’s counsel was not constitutionally

deficient for failing to seek a §78 jury instruction. By the time the jury was charged, the

ten-print card had already been admitted. At that stage, Corbin’s counsel may well have wanted

to avoid unnecessarily drawing additional attention to how and when the card was created (i.e.,

when Corbin had been arrested). Cf.Bly v. Nolan, 583 F. Supp. 2d 200, 204(D. Mass. 2008)

(“An attorney may opt not to object for a myriad of valid strategic reasons, such as to avoid

emphasizing the damaging testimony in the eyes of the jury.”(citing Commonwealth v. Gomes,

27 Though Corbin challenges the testimony of the state trooper who testified about how ten-print

cards are generally produced and maintained,see Fulgiam, 73 N.E.3d at 818, hedoes not appear

to assert that any of four required elements werenot provenat trial,see generally[ECF Nos. 2,

22]. Rather, Corbin states that a “Suffolk County jury might not have been so trusting of the

police and might not have believed that the trooper was the keeper of the records where the

trooper had never worked in the barracks that maintained the fingerprint records, there was no

testimony that the trooper had provided the card to Tolan, and there was insufficient evidence

that the card or its information was kept in a database that was under the State Police’s exclusive

control.” [ECF No. 22 at 18–19]; see also[ECF No. 2 at 36 (similar)]. As the SJC correctly

recognized, this type of assertiongoes to the weight not admissibility of the record. Fulgiam, 73

N.E.3d at 818(“We are also not persuaded by Corbin’s argument that the ten-print cards were

inadmissible because the Commonwealth presented testimony from a witness who did not

actually take or maintain the ten-print cards. Section 78 makes clear, as has this court, that the

admissibility of a document under the business records exception does not turn on the personal

knowledge of the record’s preparer.”).

822 N.E.2d 720, 725 (Mass. 2005))). Moreover, during his closing argument, Corbin’s trial

counsel chose to focus his energy on challenging the latent print on the curling iron rather than

the ten-print card, bydisparaging the quality of the print, emphasizing that it could have been left

before the day of the murder, and encouraging the jury to reach its own conclusion as to whether

the latent print even matched the print on the ten-print cardand to consider why it was not

compared to the known prints of other persons of interest. [May 17, 2013 Trial Tr. at

23:23–28:18]; seeUnited States v.Arias, 94 F. Supp. 3d 93, 114 (D. Mass. 2015) (“Furthermore,

counsel is not ineffective for failing to pursue every plausible avenue of defense.” (citing

Knowles v. Mirzayance, 556 U.S. 111, 127 (2009))). Finally, as mentioned above, the Court is

skeptical that the sought-after jury instruction would have made anydifference given the

testimony regarding the ten-print card’s creation. Beyond speculation that a “Suffolk County

jury might not have been so trusting,” [ECF No. 2 at 36], Corbinhas presented no evidence

indicating that any of the four facts that must be proven under §78 were legitimately disputed at

trial. For this reason, Corbin has failed to demonstrate that the failure to seek a §78 jury

instruction “prejudiced the defense.” Strickland, 466 U.S. at 687.

Again, Corbin’s trial counsel’s “overall performance indicates active and capable

advocacy,” Richter, 562 U.S. at 111,and his strategic decisions therefore merit significant

deference, Lucien, 871 F.3d at 129. Accordingly, his failure to seek a §78 jury instruction did

not render his assistance constitutionally deficient.

V. CONCLUSION

For the reasons noted above, Corbin’s petition, [ECF No. 1], is DENIED.

“The district court must issue or deny a certificate of appealability when it enters a final

order adverse to” a habeas petitioner. Rules Governing Section 2254 Cases, R. 11(a). The Court

declines to grant a certificate of appealability to Corbin.

SO ORDERED.

January 8, 2021 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE