Mac Hudson v. John Marshall, Jr.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MAC HUDSON, *

*

Petitioner, *

*

v. * Civil Action No. 06-cv-11755-IT

*

SHEILA KELLY, *

*

Respondent. *

MEMORANDUM AND ORDER ADOPTING REPORT

AND RECOMMENDATIONS REGARDING PETITION FOR

A WRIT OF HABEAS CORPUS

September 30, 2021

TALWANI, D.J.

Petitioner Mac Hudson is currently serving a life sentence imposed by the Massachusetts

state court after he was convicted of second degree murder in 1997. Petitioner attacks his state

court conviction, asserting violations of due process, ineffective assistance of trial counsel,

violations of the right to present a defense and to confront witnesses, and withholding of

exculpatory evidence. Amended Petition [#50]; see also Mem. of Law in Support of Petition for

Writ of Habeas Corpus (“Mem. in Support of Petition”) [#60].

Respondent, Sheila Kelly, Superintendent of the Massachusetts Correctional Institution in

Concord, Massachusetts, 1 where Petitioner is currently housed, opposes the Amended Petition

[#50], arguing that the grounds raised are not contrary to or an unreasonable application of

clearly established Supreme Court precedent or are untimely under the Antiterrorism and

1 The court takes judicial notice that the superintendent of MCI-Concord, where Petitioner is

currently incarcerated, is now Sheila Kelly and has amended the caption accordingly. See Fed. R.

Civ. P. 25(d).

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d). Respondent’s Mem. of

Law in Opposition to Petition for a Writ of Habeas Corpus (“Opp’n”) [#62]; see also Mem.

Regarding Unavailability of the Confrontation Clause Claim (“Response”) [#75].

The magistrate judge to whom the case was assigned issued two Reports and

Recommendations (“First R&R” [#65], “Second R&R” [#76], and, collectively, “the R&Rs”),

recommending in the First R&R [#65] that the Amended Petition [#50] be denied except as to

the Confrontation Clause claim (for which she allowed further briefing), and recommending in

the Second R&R [#76] that the Amended Petition [#50] be denied as to this claim as well.

Petitioner timely filed written objections to both R&Rs [#65], [#76]. See Objection to

First R&R [#68]; Objection to Second R&R [#77]; Mem. of Law in Support of Petitioner’s

Objections to Magistrate’s Report and Recommendation (“Mem. in Support of Objections”)

[#94].

Following de novo review of those portions of the R&Rs to which objections were made,

the court ADOPTS both R&Rs [#65], [#72]; OVERRULES Petitioner’s Objections [#68], [#77];

and DENIES Petitioner’s Amended Petition [#50] for the reasons set forth by the magistrate

judge and as discussed further in this memorandum and order.

I. Legal Standards

A. Magistrate Judge’s R&Rs

Under 28 U.S.C. § 636(b)(1), a district judge “shall make a de novo determination of

those portions of the report . . . or recommendations as to which objection is made.” Federal Rule

of Civil Procedure 72(b)(3) similarly provides that a district judge reviews de novo “any part of

the magistrate judge’s disposition that has been properly objected to.” Both the statute and the

Rule provide that the district judge may accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to the magistrate judge with instructions. 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72(b)(3).

B. Habeas Review

An application for a writ of habeas corpus brought by a state prisoner shall not be granted

“with respect to any claim 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) “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Where a

state court did not review the federal constitutional claim, there will be no deference to a state

court’s resolution of the federal constitutional issue and the habeas court applies de novo review.

See Lavallee v. Coplan, 374 F.3d 41, 44 (1st Cir. 2004).

“A state court determination is ‘contrary to’ clearly established law if the court applies a

rule that contradicts the governing law set forth by the Supreme Court or confronts a set of facts

that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless

arrives at a result different from [its] precedent.” Linton v. Saba, 812 F.3d 112, 122 (1st Cir.

2016) (internal citations and quotations omitted; alteration in original).

A federal court may also grant the writ if the relevant state court decision “involved an

unreasonable application of . . . clearly established Federal law, as determined by the Supreme

Court of the United States.” Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (citing Section

2254(d)(1)) (emphasis in Williams v. Taylor). An “unreasonable application of . . . clearly

established Federal law” occurs when a state court decision “correctly identifies the governing

legal rule but applies that rule unreasonably to the facts of a particular prisoner’s case.” White v.

Woodall, 572 U.S. 415, 426 (2014). Importantly, a state court does not unreasonably apply

clearly established Supreme Court law by simply refusing to extend it “to a context in which the

principle should have controlled.” Id. at 425 (internal citations and quotations omitted). In other

words, “a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 419-

20 (internal quotation and citation omitted). “This is ‘meant to be’ a difficult standard to meet.”

Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (quoting Harrington v. Richter, 562 U.S. 86,

102 (2011)).

II. Procedural and Factual Background

Finding no objection to the factual and procedural background set out in the First R&R

[#65] at 2-18, the court adopts it in full.

III. Objections to the R&Rs

In his Objections, [#68], [#77], and Memorandum in Support of Objections [#94],

Petitioner repeats all of his arguments from his Memorandum in Support of Petition [#60] and

also raises a number of specific objections to the R&Rs that are separate and apart from his

Memorandum in Support of Petition [#60]. Because Petitioner has properly objected to the

magistrate judge’s findings, the court reviews the objections de novo. See Fed. R. Civ. P. 72(b).

A. Ground One: Admission of Keil Kimbrough’s Recorded Testimony at the Second Trial

In ground one, Petitioner alleges that the trial court violated his right to due process by

permitting the prosecution to read Kimbrough’s prior recorded testimony from the first trial into

the record at the second trial. Amended Pet. 5 [#50]; Mem. in Support of Petition 15-20 [#62];

Mem. in Support of Objections 1-8 [#94].2

1. Background

At the first trial, Keil Kimbrough was the primary witness against Petitioner.

Commonwealth v. Mac Hudson, 446 Mass. 709, 712, 846 N.E.2d 1149 (2006). He testified that

at the time of the shooting, he had known Petitioner for about four years, and on the day of the

shooting, April 22, 1989, he was standing on a street corner in Roxbury where he saw Derek

Twitty and Marc Jones get shot.3 Id. He identified Petitioner and his co-defendant as the two men

who shot Twitty and Jones. Id.

After Petitioner was convicted at his first trial, his conviction was vacated by the Appeals

Court because he was denied an impartial jury, and the Appeals Court ordered a new trial. Id. at

710-11.

Between the first and the second trial, Kimbrough signed an affidavit recanting his

testimony from the first trial. Id. at 713. Specifically, he averred that he lied about witnessing the

shooting “for some consideration on my then pending case.” Kimbrough Affidavit, Ex. N, 97

[#12]. He also averred that he did not identify Petitioner from the photographs shown to him by

Boston Police Department officers. Id.

At the second trial, after answering a few preliminary questions, Kimbrough expressed a

desire not to testify. Commonwealth v. Hudson, 446 Mass. at 713. The trial court appointed

counsel for Kimbrough and Petitioner’s co-defendant provided Kimbrough’s counsel with an

unsigned copy of the affidavit which was similar in substance to the signed one. See Ex. J, 14

2 Because the Supreme Judicial Court (“SJC”) denied Petitioner’s application for leave to obtain

further appellate review (“ALOFAR”), the Appeals Court’s decision is the relevant state court

decision for habeas review.

3 Twitty died and Jones survived.

[#12]; Trial Transcript IV, 40-46, 49-50 [#63-5].

The trial judge permitted Kimbrough to exercise his Fifth Amendment right against self-

incrimination and deemed him unavailable. Trial Transcript IV, 45-46 [#63-5]. The trial judge

permitted Kimbrough’s entire testimony from the first trial to be read into the record at the

second trial. Commonwealth v. Hudson, 446 Mass. at 714. This included cross examination,

which elicited that Kimbrough had a pending criminal charge at the time he came forward with

the identifications, and that he sold drugs. Id. at 719. The trial judge also allowed defense

counsel to read into the record Kimbrough’s substantial criminal record and additional pending

charges. Id. at 719-20. Petitioner’s counsel did not impeach Kimbrough’s testimony with the

recantation affidavit. Id. at 719.

2. Reliability

Petitioner asserts first that the recantation affidavit rendered Kimbrough’s prior recorded

testimony unreliable. Mem. in Support of Objections 2-3 [#94]; Memorandum in Support of

Petition 16-17 [#60]. On de novo review, the court adopts in full the magistrate judge’s First

R&R 25-28, 32-34 [#65] as to this part of ground one.

3. Unavailability

Petitioner asserts that the trial judge erred further by erroneously allowing Kimbrough to

assert his Fifth Amendment right at the second trial and thereby making Kimbrough unavailable.

Mem. in Support of Objections 3-6 [#94].

The magistrate judge found that the unavailability prong of Petitioner’s Confrontation

Clause claim was not exhausted in state court proceedings where Petitioner cited to Ohio v.

Roberts, 448 U.S. 56 (1980),4 only as to the issue of whether Kimbrough’s recorded testimony

was reliable, Second R&R 5-7, 17-18 [#76], and that the claim was procedurally defaulted

because the Appeals Court denied it based on the adequate and independent state procedural rule

of waiver. Id. at 21-23. Because the magistrate judge found that this claim was not exhausted and

was procedurally defaulted, she reviewed the unavailability ground for cause and prejudice or for

a fundamental miscarriage of justice. Id. at 24 (citing Barbosa v. Mitchell, 812 F.3d 62, 67 (1st

Cir. 2016)). The magistrate judge found Petitioner, relying on an ineffective assistance of

counsel claim to explain why the unavailability argument was not raised on direct appeal, did not

show prejudice where he had not raised the same ineffective assistance claim in state court. Id. at

25-26 (citing Lynch v. Ficco, 438 F.3d 36, 46 (1st Cir. 2006)). The magistrate judge also found

that Petitioner failed to show that “a failure to consider his claim will work a fundamental

miscarriage of justice,” id. at 26 (citing Janosky v. St. Amand, 594 F.3d 39, 46 (1st Cir. 2010)),

where he failed to make a showing of “actual innocence” supported by new, reliable evidence.

Id. at 26 (citing Lee v. Corsini, 777 F.3d 46, 62 (1st Cir. 2015)).

In his Memorandum in Support of Objections [#94], Petitioner objects to the magistrate

judge’s finding that the issue of unavailability was not exhausted and was procedurally defaulted,

arguing: (1) the unavailability claim was “fairly presented” by citing to Ohio v. Roberts in his

direct appeal; (2) the Appeals Court understood his appeal to address both reliability and

unavailability; (3) and he has made a sufficient showing of actual innocence to excuse procedural

4 Ohio v. Roberts, 448 U.S. 56 (1980) and not Crawford v. Washington, 541 U.S. 36 (2004),

provides the applicable clearly established Supreme Court law as to the Confrontation Clause

because it was the applicable Supreme Court precedent on July 10, 2000, the date the Appeals

Court affirmed Petitioner’s conviction. See Likely v. Ruane, 642 F.3d 99, 101-02 (1st Cir. 2011)

(“[s]tate court decisions under AEDPA are measured against the Supreme Court’s precedents

that exist as of the time of the relevant state-court decision”) (internal quotation and citation

omitted).

default. The court reviews these objections de novo.

In Ohio v. Roberts, the Supreme Court identified “two separate ways” that the

Confrontation Clause restricts the range of admissible hearsay. 448 U.S. at 65. First, “in the usual

case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant

whose statement it wishes to use against the defendant.” Id. Once a witness is shown to be

unavailable, “[t]he second aspect operates,” requiring a sufficient “indicia of reliability.” Id.

Petitioner’s single citation to Ohio v. Roberts in Petitioner’s direct appeal was followed by four

paragraphs addressing the “reliability test” and concluding with “[t]he trial court violated the

defendant’s due process right by admitting this prior recorded testimony without a showing of

particularized reliability.” Ex. C, Brief and Appendix for Defendant-Appellant, Commonwealth

v. Hudson, Appeals Court No. 1998-P-686, 33-35 [#11]. Petitioner did not raise the question

posed here, namely whether the trial judge erred in determining that Kimbrough was unavailable.

Accordingly, Petitioner has not shown that the issue of unavailability was “fairly presented” in

his direct appeal and, thus, it was not exhausted. The court agrees with the magistrate judge that

the Appeals Court’s cursory mention that the trial court found that Kimbrough was unavailable

after he exercised his Fifth Amendment privilege is insufficient to show that the Appeals Court

understood Petitioner’s direct appeal to raise the issue of unavailability. See Second R&R 7-8,

17-18 [#76].

Petitioner argues next that had Kimbrough’s prior recorded testimony been excluded, a

jury may have found him not guilty. Mem. in Support of Objections 6-8 [#94]. Petitioner argues

that the lack of forensic evidence linking him to the crime, the weakness of the identifications

offered by the Commonwealth’s witnesses given the witnesses’ drug use and criminal histories,

and the fact a similar robbery happened within a few months of the shooting, while Petitioner

was incarcerated, provide sufficient evidence of actual innocence to excuse procedural default. A

showing of factual innocence, however, should be “supported by new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Lee, 777 F.3d at 62 (internal citations and

quotations omitted). All but the evidence of the similar robbery was presented at trial, and the

evidence of the similar robbery does not itself suggest factual innocence, as may be the case

where the new evidence consists of eyewitness testimony identifies someone other than the

defendant as the shooter and accomplice or new physical evidence places the defendant away

from the scene during the shooting. As such, this evidence does not excuse procedural default.

See also Section III.C (discussing the similar robbery further).

Accordingly, the court fully adopts the First R&R 28-32 [#65] and the Second R&R 13-

27 [#76] as to unavailability portion of ground one.

B. Ground Two: Ineffective Assistance of Trial Counsel

Petitioner bases his ineffective assistance of counsel ground on trial counsel’s failure to

impeach Kimbrough with the recantation affidavit and to call other witnesses who could have

impeached Kimbrough’s testimony and his failure to timely notify the Commonwealth of an alibi

witness, Petitioner’s girlfriend at the time of the shooting. Mem. in Support of Petition 20-24

[#62]; Mem. in Support of Objections 8-12 [#94].

1. Background

As discussed above, at the second trial, Petitioner’s trial counsel did not impeach

Kimbrough’s testimony from the first trial with the recantation affidavit. The SJC, in reviewing

this claim on the appeal from a denied motion for a new trial, found that Petitioner’s trial counsel

made a strategic choice not to impeach Kimbrough’s recorded testimony with the recantation

affidavit even where trial counsel asserted that he would have used the affidavit to impeach

Kimbrough if he testified live. Commonwealth v. Hudson, 446 Mass. at 713-23.

Petitioner’s girlfriend was on Petitioner’s witness list, but was not disclosed as an alibi

witness until several days into the second trial, despite a pretrial conference agreement between

trial counsel and the Commonwealth that Defendant was obligated to provide sufficient notice to

the Commonwealth before an alibi witness could be called. Id. at 724-25. Trial counsel failed to

provide the agreed-upon notice, and the trial court barred him from calling the alibi witness. Id.

2. Analysis

The magistrate judge detailed the deferential standard applicable on an ineffective

assistance of counsel and the SJC’s detailed review of the concerns that counsel may have had

about what evidence would be presented to rebut the Kimbrough affidavit. First R&R 34-42

[#65]. The court has reviewed the ineffective assistance of counsel arguments de novo and

adopts in full the magistrate judge’s First R&R [#65] as to the ineffective assistance of counsel

claim. 5

5 Defendant insists that any “tactical decision” by trial counsel not to use the affidavit to impeach

Kimbrough’s testimony from the first trial would have been “manifestly unreasonable” where

trial counsel testified that he “could not conceive of not using the recantation affidavit” had

Kimbrough testified further at the second trial. That conclusion is not obvious. If trial counsel

believed that Kimbrough’s affidavit recanting his earlier testimony, reportedly procured in prison

and under duress, was false, the rules of professional conduct would have limited trial counsel’s

offering of the affidavit as evidence. See Mass. Rule of Professional Conduct 3.3(a)(3) (“A

lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false, except as

provided in Rule 3.3(e) [regarding a criminal defendant’s own testimony] . . . A lawyer may

refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the

lawyer reasonably believes is false.”). This rule would not have precluded trial counsel from

using the affidavit (but not introducing it) to cross-examine and impeach Kimbrough if he had

testified further at the second trial.

C. Ground Three Objection: Whether Evidence of a Similar Robbery Should Have Been

Presented to the Jury

In ground three, Petitioner argues the trial court erred in excluding evidence of a

purportedly similar robbery which took place around the same time and in the same general

vicinity of the shooting and where Petitioner, who was incarcerated at the time of the second

robbery, was identified by the victim as one of the perpetrators. Mem. in Support of Petition 24-

27 [#60]; Mem. in Support of Objections 12-16 [#94].

1. Background

The trial judge found that the other robbery took place three quarters of a mile away from

the shooting and that three and a half months separated the incidents. Ex. KK, 5, 9-10 [#48]; Ex.

5, 14-15 [#63]. The trial judge also noted that the other robbery was not drugs, but was for a gold

chain, and found that the similarities were too weak to warrant admission of this evidence. Ex. 5,

14-15 [#63].

2. Analysis

Petitioner argues that the First R&R [#65] did not “address the numerous substantial

similarities between the robberies,” and instead only addressed the ways the robberies were

different in finding that the state court did not apply a rule contrary to or an unreasonable

application of federal law.” Mem. in Support of Objections 16 [#94]. He contends that the trial

judge and Appeals Court’s determination “that the two incidents were not similar is an

‘unreasonable determination of the facts’” in violation of Section 2254(d)(2). Mem. in Support

of Petition 27 [#60]. The trial court and the Appeals Court did not ignore the similarities between

the robberies, they found that the similarities, in light of significant differences, were insufficient

to satisfy the relevance requirement necessary for the introduction of this evidence. The object of

the second robbery was a gold chain, this robbery was for drugs; the robberies happened about

three months apart; and the robberies happened three quarters of a mile apart; also, the

similarities Hudson highlighted were found to be common, e.g., the phrase both robbers used

(“kick it in”), and the number of robbers (two) and their generic size/description. These

similarities are not so overwhelming as to negate the differences. The Appeals Court, in

affirming the exclusion of this evidence, did not unreasonably apply Chambers v. Mississippi,

410 U.S 284, 294 (1973) or United States v. Scheffer, 523 U.S. 303, 308 (1998). After de novo

review, the court agrees and fully adopts the First R&R 42-50 [#65] as to ground three.

D. Ground Four Objection: the Trial Court’s Exclusion of Petitioner’s Alibi Witness

1. Background

In ground four, Petitioner contends that the trial court’s exclusion of his girlfriend’s alibi

testimony deprived him of his right to present a defense under the Sixth and Fourteenth

Amendments. Mem. in Support of Petition 27-31 [#62]; Mem. in Support of Objections 16-21

[#94]. Petitioner also argues that de novo review applies to this ground because the Appeals

Court did not reach the constitutional claim. Mem. in Support of Objections 20 [#94].

As noted above, the trial judge excluded the alibi testimony because Petitioner’s trial

counsel failed to comply with a pretrial conference agreement which set out required notice to

opposing counsel for witnesses. First R&R 54-55 [#65].

2. Analysis

Petitioner argues the magistrate judge erred in concluding she did not need to review de

novo the trial court’s decision to exclude Petitioner’s alibi witness.

Trial counsel signed a pretrial conference agreement setting out when witnesses would be

disclosed; later he expressed a belief he had not signed such an agreement; and, in violation of

the pretrial agreement, asked to present an alibi witness, making the request to the trial court the

Friday before the Monday the Commonwealth intended to finish presenting its case.6

Commonwealth v. Hudson, 2000 WL 1477124, at *1-2. Petitioner raised the issue of whether

excluding his alibi witness deprived him of his right to present a defense under the Sixth and

Fourteenth Amendments in his direct appeal, and while the Appeals Court’s decision denying

relief did not cite to federal constitutional law, the magistrate judge found the decision’s analysis

rested on federal constitutional grounds because it referenced a Massachusetts state court

decision, Commonwealth v. Porcher, 26 Mass. App. Ct. 517, 518, 529 N.E.2d 1348 (1988),

which itself relied on federal constitutional grounds. First R&R 51-52 [#65]. Accordingly, the

magistrate judge found that de novo review was not warranted and AEDPA review was

appropriate. Id. at 50-55.

Petitioner does not quarrel with the magistrate judge’s statement of the law, that

“reference to state court decisions that themselves deal with federal constitutional issues may be

sufficient to trigger AEDPA’s heightened deference.” Clements v. Clarke, 592 F.3d 45, 54 (1st

Cir. 2010) (citing DiBenedetto v. Hall, 272 F.3d 1, 7 (1st Cir. 2001) (emphasis in original)).

Instead, he argues that Clements requires an explanation of why, in this particular case, citation

to Commonwealth v. Porcher triggered AEDPA review.

Porcher presents similar facts to Petitioner’s case: without prior notice, trial counsel for

the defendant sought to present an alibi witness, and was barred from doing so because calling an

alibi witness at a late stage violated a pretrial conference report. See also Mass. R. Crim. P.

14(b)(1) and (e)(2)(B). Porcher cites to the relevant Massachusetts criminal procedure rule

permitting the exclusion of an alibi witness in these circumstances, Mass. R. Crim. P.

6 Petitioner’s girlfriend at the time of the robbery was not called to testify at the first trial. Mem.

in Support of Objections 17 [#94].

14(b)(1)(D), and then addresses the defendant’s Sixth Amendment challenge, explaining that the

Supreme Court in Taylor v. Illinois, 484 U.S. 400, 409-11 (1988), held that while the Sixth

Amendment provides the right of an accused to present witnesses in his defense, that right is

subject to a measure of procedural control. Porcher, 26 Mass. App. Ct. at 518-19. The Appeals

Court in Petitioner’s case cited to the pages of Porcher that address the Supreme Court’s Sixth

Amendment analysis of the exclusion of an alibi witness and the circumstances in which it may

be appropriate.

“A state court decision that does not address the federal claim on the merits falls beyond

the ambit of AEDPA. When presented with such unadjudicated claims, the habeas court reviews

them de novo.” Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). However, the First Circuit

has rejected an “inflexible rule” which would require de novo review if “busy state judges” did

not provide case citations to federal law because such a rule would “elevate form over

substance.” Id. at 53. Here, the Appeals Court relied on Porcher in response to Petitioner’s

challenge that excluding the alibi witness violated his Sixth Amendment right to present a

defense.7 The court is persuaded that the Appeals Court did indeed address Petitioner’s Sixth

Amendment claim by citing to Porcher, which in turn cites Taylor v. Illinois and the appropriate

federal constitutional grounds, and that the Appeals Court’s decision is “sufficient to trigger

AEDPA’s heightened deference.” Clements, 592 F.3d at 54.

7 The court in Porcher explained that limits on alibi witnesses could be appropriate where

defense counsel failed to timely identify the witness and that the need for the “procedural

control” described in Taylor v. Illinois is particularly important for alibi witnesses “because

testimony that the defendant was elsewhere when the crime occurred is so easily fabricated” and

thus “[f]airness requires a chance to check out the bona fides of an alibi witness.” Porcher, 26

Mass. App. Ct. at 519 (citing Taylor v. Illinois, 484 U.S. at 409-11).

E. Ground Five Objection: Whether the Magistrate Judge’s Erred in Relying on Beldotti

In ground five, Petitioner contends that “the trial court’s decision while empaneling the

jury to change the number of jurors to be seated unfairly prejudiced” his use of peremptory

challenges in violation of his due process rights. Mem. in Support of Petition 32-34 [#60]; Mem

in Support of Objections 21-24 [#94].

1. Background

At the beginning of jury selection, the trial judge indicated he would empanel 16 jurors

and that Petitioner would have 16 peremptory challenges. Commonwealth v. Hudson, 2000 WL

1477124, at *1. Two days into jury selection, the trial judge changed course and decided to only

empanel 15 jurors, and when the jury was selected, Petitioner had five unexercised peremptory

challenges. Id.

2. Analysis

Petitioner argues that the magistrate judge erred in relying on Commonwealth v. Beldotti,

409 Mass. 553, 567 N.E.2d 1219 (1991), in support of her finding that the trial court did not

violate Petitioner’s due process rights when it changed the number of jurors to be seated, thus

limiting his use of his peremptory challenges. He argues this was an error because, unlike trial

counsel for the defendant in Beldotti, Petitioner’s trial counsel objected when the trial court

announced that it would change the number of jurors from the originally announced 16 to 15 and

stated as part of his objection that had he known there would be only 15 jurors, he would have

used his peremptory challenges differently. Mem. in Support of Objections 23 [#94].

In Beldotti, the SJC first found that the trial court “violated no principle of State law” in

changing the number of jurors from 16 to 14, where state law required only 12, and where the

defendant received 14 peremptory challenges and had some unexercised challenges when the

jury was picked. 409 Mass. at 560-61. The SJC then explained that “in the absence of a showing

of unfairness, no Federal due process principle was violated.” Id. at 561 (citing Ross v.

Oklahoma, 487 U.S. 81, 89 (1988) (“the [due process] ‘right’ to peremptory challenges is

‘denied or impaired’ only if the defendant does not receive that which state law provides”)).

Petitioner is correct that Beldotti applied a more deferential standard to the trial court’s

decision because the defendant had neither objected at trial to the change in the number of jurors

nor indicated he would have used his peremptory challenges differently had he understood that

only 14 jurors would be picked. Id. at 561 (“in the absence of objection, we test the defendant's

argument under G.L. c. 278, § 33E, to see whether he has shown a substantial likelihood of a

miscarriage of justice. . . . He has shown neither unfairness nor any indication of a miscarriage of

justice.”). However, the operative standard for assessing whether there was a due process

violation is the one articulated in Ross v. Oklahoma, namely, did the trial court violate a

principle of state law in changing the number of jurors. 487 U.S. at 90-91. The Appeals Court

found it had not, and the magistrate judge found that this was an application of a rule that

comports with Ross and, thus, not contrary to or an unreasonable application of federal

constitutional law under § 2254(d). First R&R 59-60 [#65]. The court, after reviewing this issue

de novo, agrees.

Peremptory challenges are granted to fulfill the mandate of the Sixth Amendment that a

defendant is entitled to a fair and impartial jury. However, peremptory challenges are not

guaranteed by the Constitution. Ross, 487 U.S. at 88 (“We have long recognized that peremptory

challenges are not of constitutional dimensions.”). Instead, peremptory challenges “are but one

state-created means to the constitutional end of an impartial jury and a fair trial. This Court

repeatedly has stated that the right to a peremptory challenge may be withheld without impairing

the constitutional guarantee of an impartial jury and a fair trial.” Georgia v. McCullom, 505 U.S.

42, 57 (1992). Relatedly, denial of peremptory challenges may violate the Sixth Amendment

where the defendant is deprived of his constitutional right to an impartial jury, but the Supreme

Court has “reject[ed] the notion that the loss of a peremptory challenge [automatically]

constitutes a violation of the constitutional right to an impartial jury.” Ross, 487 U.S. at 88.

Petitioner does not argue he was denied an impartial jury, nor does he argue that

changing the number of jurors violated Massachusetts state law. Instead, he argues he was denied

the benefits of Massachusetts law on peremptory challenges and given fewer peremptory

challenges than he expected. By law, he was entitled to 12 jurors, he received 15 jurors and was

entitled to 15 peremptory challenges, which he also received. See Mass. R. Crim. P. 20(c)(1).

The Appeals Court’s decision that this did not violate his due process rights was neither contrary

to nor an unreasonable application of Ross despite Petitioner’s claim that he may have used his

peremptory challenges differently had he known the trial judge would seat 15 instead of 16

jurors. In Ross, hypothetical arguments were made about how the jury would have been different

if the defendant had not been forced to use a peremptory challenge to remove a juror who should

have been removed for cause, and that this mandated reversal. The Supreme Court rejected this

argument: “Although we agree that the failure to remove [a juror] [for cause] may have resulted

in a jury panel different from that which would otherwise have decided the case, we do not

accept the argument that this possibility mandates a reversal.” Ross, 487 U.S. at 87.

In Ross, the trial court’s error in not striking a juror for cause required the defendant to

expend a peremptory challenge he would not have otherwise used. Id. However, because using

that peremptory challenge in response to the error was required by Oklahoma law, the defendant

was deprived neither an impartial jury nor of “any interest provided by the State.” Id. at 91. Here,

the trial court changed the number of jurors, which reduced the number of peremptory challenges

Petitioner was entitled to, and, had he known this, Petitioner may very well have used his

peremptory challenges differently, but that does not amount to a violation of state law and, as a

result, fails to amount to a violation of Petitioner’s due process rights as articulated in Ross.

Thus, the decision by the Appeals Court was neither contrary to nor an unreasonable application

of federal constitutional law. For these reasons, the court adopts in full the First R&R 56-60

[#65] as to ground five.

F. Ground Six Objection: Whether the Magistrate Judge Erred in Finding the Federal Nature

of this Ground for Relief was Not Presented to the SJC

In ground six, Petitioner argues that the trial court erred in refusing to instruct the jury as

to the possibility that a witness made a good faith, but mistaken identification. Because

identification of the Petitioner as one of the assailants was the central issue at trial, Petitioner

contends that failing to give the jury the good faith, mistaken identification instruction “‘so

infected the entire trial that the resulting conviction violate[d] due process.’” Mem. in Support

Petition 26 [#60] (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

1. Background

At trial, Petitioner requested the good faith, mistaken identification instruction; the trial

court declined to give this specific instruction, but instructed the jury at length about its role in

considering the “credibility of each identification witness,” that the Commonwealth had the

burden of proving the identify of the Petitioner as one of the assailants, that the jury should

consider whether the identifications made by witnesses were “products of their own

recollections,” and whether any of the witnesses “ever tried and failed to make an identification

of the Defendant, or made an identification that was inconsistent with the identification that such

witness made at trial.” Trial Transcript, Ex. 10 123-26 [#63-10].

2. Analysis

Petitioner argued to the Appeals Court that the trial court’s decision to not give the good

faith, mistaken identification instruction upon his trial counsel’s request violated his federal due

process rights. Here he argues that the magistrate judge erred in finding that he did not fairly

present this claim to the SJC in his ALOFAR. Mem. in Support of Objections 24-25 [#94].

However, the magistrate judge evaluated this ground for habeas relief under both de novo

review, as if the Appeals Court had not addressed the merits of the federal constitutional claim,

and under Section 2254(d)(1) review. The court, reviewing this ground de novo adopts in full the

magistrate judge’s recommendation as to the sixth ground for relief. First R&R 60-68.

G. Ground Seven: Improper Limitation of Cross Examination

Petitioner asserts that the trial judge violated his due process rights by improperly

limiting his cross examination of a witness, Derma Hughes, concerning a conversation she

overheard between a prosecutor and one of the testifying eyewitnesses, Dwayne Moody. Mem.

in Support of Petition 36-37 [#60]; Mem. in Support of Objections 27-28 [#94].

1. Background

A week before the first trial, Moody failed to identify Petitioner at a preliminary hearing.

Commonwealth v. Hudson, 2000 WL 1477124, at *2. However, at the first trial, he identified

Petitioner as one of the assailants and explained that his failure to identify Petitioner at the

preliminary hearing was because Petitioner was wearing glasses at the preliminary hearing and

those glasses covered a distinctive mark or scar on Petitioner’s face. Commonwealth v. Hudson,

446 Mass. at 712-13. Petitioner was not wearing glasses at the first trial, and Moody testified that

he was able to identify him because he could see the mark or scar. Id. At the second trial,

Petitioner sought to ask Derma Hughes about a conversation she overheard during the first trial

during which a prosecutor identified Petitioner as the person Moody was supposed to identify.

Commonwealth v. Hudson, 2000 WL 1477124, at *2.

The trial judge prevented Petitioner from impeaching Moody’s identification by eliciting

this testimony from Derma Hughes. Id. The trial judge barred the line of questioning as hearsay.

Id. The Appeals Court concluded that the trial court erred in excluding the cross examination

because the conversation between Moody and the prosecutor was not being offered for its truth

and was not, therefore, hearsay. Id. Nevertheless, the Appeals Court concluded the error was

harmless beyond a reasonable doubt. Id.

2. Analysis

Petitioner’s Memorandum in Support of Objections [#94] raises no new objections as to

the improper limitation of cross examination ground for habeas relief and instead relies on the

arguments from the Memorandum in Support of Petition [#60], namely that the Appeals Court

erred in finding this error harmless beyond a reasonable doubt under Chapman v. California, 386

U.S. 18, 24 (1967). The court has reviewed the arguments concerning the harmless error analysis

de novo and adopts in full the magistrate judge’s First R&R 68-72 [#65] as to ground seven.

H. Ground Eight Objection: Brown’s in-Court Identification

Petitioner argues in ground eight that, by refusing to declare a mistrial following a

surprise in-court identification of the Petitioner, the trial court denied Petitioner a fair trial under

the Due Process Clause. Mem. in Support of Petition 38-40 [#60]; Mem. in Support of

Objections 28-31 [#94].

1. Background

During Petitioner’s first trial, the Commonwealth called Larry Brown, and Brown

identified Petitioner’s co-defendant as one of the assailants, but did not identify Petitioner.

Commonwealth v. Hudson, 446 Mass. at 712-13. At the second trial, the Commonwealth

informed Petitioner’s trial counsel that it would not seek to an elicit an identification of the

Petitioner from Brown. Trial Transcript, Vol. VI, 8 [#63-7]. However, when the prosecution

asked Brown who he saw get out of the car on the day of the shooting, Brown responded “[t]he

two gentlemen over there,” indicating Petitioner and his co-defendant who were sitting at the

defense table. Trial Transcript Vol. VII, 7 [#63-8]. Petitioner’s trial counsel immediately moved

for a mistrial and the trial court denied the motion. Id. at 7-10.

On cross examination, Brown’s testimony was impeached as he acknowledged his daily

drug use and his numerous prior convictions and pending cases. Trial Transcript, Vol. VII, 40-44

[#63-8]. A police officer also testified that Brown asked for a deal on a pending case in exchange

for giving information about the assailants. Trial Transcript Vol. VIII, 135 [#63-9].

On direct appeal, Petitioner presented this ground as a due process violation and the

Appeals Court rejected the claim on the basis that Petitioner “failed to show that the

identification was unnecessarily suggestive, or that prosecutorial misconduct was behind the

identification.” Commonwealth v. Hudson, 2000 WL 1477124, at *3 (citing Commonwealth v.

Gordon, 422 Mass. 816, 846-47 (1996)).

1. Analysis

Petitioner argues that the surprise in-court identification of him by Brown violated his

due process rights. The magistrate judge found that there was no clearly established federal law

addressing “a witness’ first-time identification of a defendant in court without a previous

suggestive pretrial identification.” First R&R 78 [#65]. The magistrate judge also identified the

Supreme Court case law addressing suggestive pretrial identifications and held that, even if these

cases applied to Brown’s in-court identification, “the wide variance between these cases and the

circumstances of Brown’s identification of petitioner for the first time at trial establish that the

appeals court’s decision was not an unreasonable application of such law.” Id. at 79. Petitioner

argues the magistrate judge erred by finding the circumstances of this in court identification

distinguishable from the circumstances set forth in applicable Supreme Court case law. Mem. in

Support of Objections 28-29 [#94]. The court reviews this objection de novo.

Under the identified Supreme Court cases, “[i]t is the likelihood of misidentification

which violates a defendant’s right to due process.” Neil v. Biggers, 409 U.S. 188, 198 (1972)

(upholding admission of pretrial identification testimony and finding “no substantial likelihood

of misidentification” in a one man, show up identification at station house which, although

suggestive, was reliable). Thus, “reliability is the linchpin in determining the admissibility of

identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 99-102 (1977). The determination

of whether an identification is sufficiently reliable to be admissible under the Due Process Clause

is made on a case-by-case assessment and depends on the circumstances of the identification, the

accuracy of the description, the distance between the witness and the suspect when the

identification was made, and that these factors are to be weighed against the suggestive

circumstances. Id. at 114.

Here, the court agrees with Petitioner that the identification was unreliable and should not

have been admitted. Petitioner was sitting at the defendants’ table when he was first identified by

Brown. The shooting took place in 1989 and this in-court identification happened eight years

later, in 1997. Brown had not identified Petitioner during the first trial as one of the people

involved in the shooting. Tr. VII-21-22 [#63-9]. Brown testified he had never seen Petitioner

prior to the day of the shooting. Tr. VII-14 [#63-9]. Finally, Brown testified about his daily drug,

his criminal convictions, and the fact he asked police for help with pending charges before

providing information about the men involved in the shooting. Tr. VII-25-28, VII-40-45 [#63-9].

Weighing the fact Petitioner was at the defendant’s table when identified against the factors

undermining the credibility of his identification, the court finds the testimony unreliable.

The testimony, however, was not allowed in over an objection, but instead, was blurted

out by the witness. Petitioner’s counsel sought a mistrial (which was denied) but did not ask to

strike the testimony. Most importantly, this identification was not offered to the jury as a pre-trial

identification entitled to some weight because of its proximity to the time of the events in

question, but was instead occurred in real time before the jury (which could take note itself of the

suggestive circumstance of the identification), and Brown was then subject to cross-examination

that allowed the jury to determine this lack of reliability. Thus, even assuming the Supreme

Court law cited by Petitioner applies to a first-time in court identification, the court, after

reviewing the ground de novo finds no violation of Petitioner’s due process rights as to ground

eight.

I. Ground Nine: Prosecution’s Failure to Turn Over Exculpatory Evidence

1. Background

Petitioner claims that the prosecutor failed to turn over exculpatory information

consisting of a letter from Derek Tyler to the prosecution which purportedly included letters

from Kimbrough to Tyler explaining that Kimbrough testified falsely against Petitioner at the

first trial. Mem. in Support of Petition 40-41 [#60]; Mem. in Support of Objections 31-32 [#94].

Petitioner argues that the SJC’s denial of the claim was an unreasonable application of clearly

established law under Brady v. Maryland, 373 U.S. 87, 94 (1963).

The trial prosecutor had no memory of receiving the letter and the letter was not in the

file from this case. Petitioner did not attach the Tyler letter to his motion for a new trial. The SJC

determined Tyler did not send the letters. Commonwealth v. Hudson, 446 Mass. at 710, n.2.

2. Analysis

Petitioner’s Memorandum in Support of Objections [#94] raises no new objections

concerning the Tyler letter and instead relies on the arguments from the Memorandum in Support

of Petition [#60], namely that the SJC’s denial of the claim was an unreasonable application of

Brady, 373 U.S. 87, because the assumption “that Hudson was not prejudiced by the failure to

turn over the letters,” was unreasonable, Mem. in Support of Objections 34 [#94], and that the

SJC also made an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). The

court has reviewed this ground de novo and adopts in full the magistrate judge’s First R&R 79-

88 [#65] as to ground nine.

J. Ground Ten: Other Exculpatory Evidence

1. Background

In ground ten, Petitioner contends that the Appeals Court’s 2015 decision that Petitioner

was not prejudiced by the failure to disclose three categories of exculpatory material was

contrary to or an unreasonable application of Brady, 373 U.S. 87. Mem. in Support of Petition

41-53 [#60]; Mem in Support of Objections 32-44 [#94]. There are three categories of

exculpatory material at issue in ground ten: (1) documents relating to efforts by Toya Kimbrough

(Keil Kimbrough’s sister) “to secure employment with the District Attorney’s office,” Record

Appendix for Defendant, Ex. XX, 198-200 [#48]; (2) two “police reports relating to [Luis]

Andrade,” a person Petitioner argues was a suspect in the shooting, id. at 170-71; and (3) police

reports and notes relating to the early stages of the investigation regarding when and how

Petitioner was identified as one of the suspects in the investigation. Id. at 201-06.

The Appeals Court considered and rejected all three Brady claims on their merits.

Commonwealth v. Hudson, 2015 WL 2037025, at *2-3.

2. Analysis

Petitioner’s Memorandum in Support of Objections [#94] raises no new objections

concerning the three categories of purportedly exculpatory evidence and instead relies on the

arguments from the Memorandum in Support of Petition [#60], namely that the SJC’s denial of

the claim was an unreasonable application of Brady, 373 U.S. 87, and that the SJC also made an

unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2).” Mem. in Support of

Objections 42-44 [#94]. The court has reviewed this ground de novo and adopts in full the

magistrate judge’s First R&R 88-99 [#65] as to ground ten.

IV. Conclusion

For the foregoing reasons, Petitioner’s Objections [#68] to the first Report and

Recommendation [#65] are OVERRULED. The first Report and Recommendation [#65] is

ACCEPTED and ADOPTED. Petitioner’s Objections [#77] to the Second R&R [#76] are

OVERRULED. The second R&R [#76] is ACCEPTED and ADOPTED. Petitioner’s Amended

Habeas Petition [#50] is DENIED.

IT IS SO ORDERED.

Date: September 30, 2021 /s/ Indira Talwani

United States District Judge