Simon v. Silva

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WALLY JACQUES SIMON, )

)

Petitioner, )

)

v. ) CIVIL ACTION NO.

) 20-10715-DPW

STEVEN SILVA, )

Superintendent, MCI Norfolk. )

)

Respondent. )

MEMORANDUM AND ORDER

December 9, 2021

Before me is a petition for a writ of habeas corpus under

28 U.S.C. § 2254, arising from the state convictions of Wally

Jacques Simon related to the shooting death of Christopher

Barbaro. In 2013, a jury convicted Mr. Simon of first-degree

murder on a theory of felony murder, MASS. GEN. LAWS ch. 265, § 1;

armed home invasion, MASS. GEN. LAWS ch. 265, § 18C; armed robbery,

MASS. GEN. LAWS ch. 265, § 17; assault and battery by means of a

dangerous weapon, MASS. GEN. LAWS ch. 265, § 15A(c)(i); and

carrying a firearm without a license, MASS. GEN. LAWS ch. 269, §

10(a).

Mr. Simon sought but was denied a new trial in the

Massachusetts Superior Court. He pursued a consolidated appeal

of his convictions and the denial of his new trial motion before

the Massachusetts Supreme Judicial Court. In 2019, the SJC

vacated Mr. Simon’s armed robbery conviction but affirmed the

remaining convictions and the denial of his new trial motion.

Commonwealth v. Simon, 120 N.E.3d 679 (Mass. 2019).

Mr. Simon as Petitioner now asserts four grounds for habeas

corpus relief: 1) that he was deprived of his Fifth Amendment

right against self-incrimination as a result of his counsel’s

ineffective assistance during a pre-arrest interrogation; 2)

that the prosecutor engaged in improper burden shifting by

suggesting to the jury that Mr. Simon had an obligation to

preserve evidence (a recording of his pre-arrest interrogation);

3) that his right against double jeopardy prevents him from

being convicted of felony murder and either or both the Felony

murder predicate offenses (armed robbery and armed home

invasion) found by the jury; and 4) that the SJC erroneously

declined to exercise its extraordinary powers under MASS. GEN.

LAWS ch. 278, § 33E to grant Mr. Simon relief.

The Respondent, Mr. Simon’s state penal custodian, moves

for judgment on the pleadings. I will grant Respondent’s Motion

for Judgment on the Pleadings and dismiss Mr. Simon’s petition.

I. BACKGROUND

A. Factual Background

In the absence of clear and convincing evidence of error, I

must defer to the factual determinations of the Massachusetts

state courts when reviewing a collateral challenge to a

Massachusetts conviction. 28 U.S.C. § 2254(e)(1). I recite the

facts as stated in the opinion of the SJC; that opinion provides

the last fully developed narrative of factual determinations in

the state courts. My recitation is “supplemented with other

record facts consistent with the SJC's findings.” Healy v.

Spencer, 453 F.3d 21, 22 (1st Cir. 2006). See generally

Strickland v. Goguen, 3 F.4th 45, 47–48 (1st Cir. 2021)(relying

on the last reasoned state court decision “in crafting the

factual and procedural narrative.”).

1. The Underlying Deadly Shooting and Identification

Procedures

Christopher Barbaro was killed on October 24, 2007 when an

assailant broke into his apartment in Winchester, attempted to

steal his cash and rare coin collection, and shot him in the

head.

Around 12:30 A.M. Christopher’s brother and upstairs

neighbor, Bryan Barbaro,1 heard several loud bangs from

Christopher’s apartment. Bryan investigated the noises and

found Christopher on the ground; he had been shot in the head

and was struggling to breathe. Bryan then encountered a man he

later identified as Mr. Simon attempting to carry a bag of cash

and coins out of Christopher’s apartment. Bryan came “nose to

nose” with Mr. Simon, who was unmasked and wearing a black

1 Because Christopher and Bryan Barbaro share a surname, I will,

as did the SJC in its opinion on the merits, refer to them by

their first names to avoid confusion.

jacket. Mr. Simon pointed a gun at Bryan and the two struggled.

Mr. Simon shot Bryan in the chest. During the struggle, Mr.

Simon’s bag of coins ripped open and coins spilled out onto the

floor. Immediately thereafter, Mr. Simon walked out the front

door of the apartment and fled in a dark sport utility vehicle.

When the assailant was gone, Bryan returned to his

apartment to call 911. He told the dispatcher that he and his

brother had been shot by “Wally,” who he described as a black

male of Jamaican descent. He told the dispatcher he knew Wally

from the local gym and that Wally drove a black sport utility

vehicle.

When police arrived at the scene, they found Christopher

dead of a gunshot wound to the head. He had been shot with a

.25 caliber bullet and police found numerous other .25 caliber

bullets and shell casings in the apartment. Coin books and cash

were strewn across the staircase to Christopher’s apartment.

Police found a barely conscious Bryan in his upstairs apartment;

Bryan told them “Wally, from the gym did this to me.”

Bryan had met Wally Simon at the gym some years prior to

this incident. Mr. Simon, a carpenter, occasionally worked for

Bryan’s construction company. Bryan introduced Mr. Simon to his

brother, Christopher. Eventually Mr. Simon became Christopher’s

marijuana supplier when Christopher was engaged in selling

marijuana.

Based on Bryan’s statements police went to his local gym

that morning and inquired about a client named Wally. Officers

obtained Mr. Simon’s name and address from the gym and began to

surveil him. Officers followed Mr. Simon from his apartment to

his wife’s home in Medford, to his children’s school, and then

into downtown Boston to the office of his attorney, Daniel

Solomon.

Police officers approached Mr. Simon immediately upon his

arrival at Attorney Solomon’s office. Mr. Simon, on the phone

with Attorney Solomon at the time, informed officers that he

would not talk to police until his attorney arrived. When

Attorney Solomon came outside, officers told him “[t]here was an

incident in Winchester last night, and we want to talk to [Mr.

Simon] about it.” Attorney Solomon told them he would meet with

his client and inform them if Mr. Simon would be made available

to speak with them.

Attorney Solomon and Mr. Simon conferred in Attorney

Solomon’s office for approximately an hour while police waited

at a coffee shop. During this time period, the officers

received a call from other officers who were at the hospital

with Bryan Barbaro. The officers at the hospital reported that

Bryan was out of surgery and had identified Mr. Simon as his

assailant in a photographic array.2

The officers waiting to speak to Mr. Simon then called

Attorney Solomon and again asked to interview Mr. Simon. Id.

Attorney Solomon invited two officers, Trooper Scott McCormack

and Detective Paul DeLuca to his office. There, the officers

interviewed Mr. Simon for five to ten minutes.3 Attorney Solomon

was present throughout the interview; there is no evidence that

he knew the subject of the officers’ investigation at the time.

2. The Interrogation

Trooper McCormack first informed Mr. Simon that police were

investigating a double shooting and home invasion that had

occurred in Winchester the night before. One victim died of his

injuries, officers told Mr. Simon, but the other had survived

and identified Mr. Simon as the shooter in a photographic array.

2 Bryan was shown an eight-person photo array after surgery.

Before he viewed Mr. Simon’s photograph, Bryan dismissed six

photographs and remarked that a seventh looked similar to the

assailant. Then, when viewing the photograph of Mr. Simon, he

identified Mr. Simon as the assailant.

3 The defense moved to suppress Mr. Simon’s statements on grounds

that the officers did not provide him Miranda warnings. The

suppression motion judge denied the motion. He found that

Miranda warnings were rendered unnecessary by counsel’s presence

throughout the interview. Mr. Simon pursued an interlocutory

appeal of this decision to the Supreme Judicial Court. The SJC

affirmed the motion judge’s decision, holding that “the presence

of counsel during police questioning of a suspect, when the

suspect has had an opportunity to consult with counsel

beforehand, substitutes adequately for the giving of Miranda

warnings.” Commonwealth v. Simon, 923 N.E.2d 58 (2010), cert.

denied, 562 U.S. 874 (2010). The motion judge’s determination

is not challenged in the petition before me.

Mr. Simon went on to make two statements of which the jury was

made aware at trial.



Asked if he knew anyone in Winchester, Mr. Simon informed

officers he knew Bryan Barbaro. Mr. Simon told them he met

Bryan years before at the gym. Mr. Simon said he worked

for Bryan on occasion and had been to his home several

times. Mr. Simon also said he knew Bryan’s brother,

Christopher.



Mr. Simon then told officers that he had an alibi for the

night of the shooting. Mr. Simon explained that he watched

a boxing match at home and then went to his friend’s house

in Lynn. Late that night, Mr. Simon said, he returned home

to sleep. Mr. Solomon interjected at this point and

advised Mr. Simon not to answer any further questions.

3. The Commonwealth’s Case at Trial

The Commonwealth tried Mr. Simon for first-degree murder on

a felony murder theory. According to the Commonwealth, Mr.

Simon broke into Christopher’s home to rob him of his cash and

valuable coin collection; he killed Christopher during the

robbery and shot Bryan in order to escape the apartment. In

addition to Mr. Simon’s statements to police during his

interrogation, the Commonwealth presented the jury with the

following evidence.

First, the Commonwealth played the jury Bryan Barbaro’s 911

call, during which he identified “Wally” from his local gym as

the shooter. Bryan Barbaro died of natural causes before he

could testify at trial, but the Commonwealth read his grand jury

testimony into evidence. Id. Bryan’s grand jury testimony was

that he had known Mr. Simon for about seven years and that Mr.

Simon was working with Christopher to sell marijuana. Bryan

also testified to his memory of the shooting and to recognizing

Mr. Simon as the assailant.

Second, Patricia Barbaro, Bryan and Christopher’s mother

and neighbor, testified to hearing a loud crack around 12:30

A.M. on the night of the shooting. From her apartment across

the street from Christopher’s, Patricia Barbaro saw a man in a

hooded sweatshirt walk out the front door to Christopher’s

building and drive away in a dark-colored SUV. Christopher’s

downstairs neighbor, Thomas Breen, also testified to hearing a

loud noise from upstairs around 12:30 A.M., followed by the

sound of someone leaving the apartment building moments later.

Third, the jury was presented with three pieces of physical

evidence that, the Commonwealth claimed, tied Mr. Simon to the

shooting. When searching Mr. Simon’s home, investigators found

a .25 caliber bullet in Mr. Simon’s top dresser drawer; this was

the same caliber bullet used to shoot Christopher and Bryan. A

search of Mr. Simon’s black sport utility vehicle revealed a

1950 quarter on the front passenger’s side floor. This quarter

was consistent with the kind of coins in Christopher’s coin

collection. Investigators searched Mr. Simon’s wife’s apartment

and found $1,000 in cash on her dresser, which she said belonged

to her.

Fourth, Dolores Mazil and Anunzie Viel testified that Mr.

Simon was not with them in Lynn on the night of the shooting.

Mr. Simon’s cell phone records, introduced at trial, showed

several phone calls between Mr. Simon and Ms. Viel the following

morning. Ms. Viel testified that Mr. Simon never asked her to

provide him a false alibi following the shooting. The

Commonwealth then introduced her grand jury testimony, as a

prior inconsistent statement, in which Ms. Viel testified that

Mr. Simon called her the morning following the shooting and

asked her to tell police he was with her the night before.

4. The Defense Case

Mr. Simon presented a third-party culprit defense at trial,

arguing that Bryan Barbaro killed his brother and shot himself.

The defense contended that Bryan named Mr. Simon, Christopher’s

marijuana dealer, as the shooter to deflect suspicion from

himself. Defense counsel directed the jury to the lack of

physical and forensic evidence connecting Mr. Simon to the

scene, while Bryan was admittedly present in Christopher’s

apartment. Bryan, the defense argued, had knowledge of

Christopher’s coin-collection and was jealous of Christopher’s

wealth.

Attorney Solomon, who did not appear as trial counsel for

Mr. Simon, testified to his recollection of Mr. Simon’s

interrogation on October 24, 2007. He offered testimony

regarding discrepancies between his memory of Mr. Simon’s

statements and Trooper McCormack’s testimony. Further, he noted

that officers did not record Mr. Simon’s interview, referencing

police best practices that all suspect interviews be recorded

whenever possible.

B. Travel of the Case

On October 2, 2013, the jury convicted Mr. Simon on all

counts, including first-degree felony murder. The jury

specifically convicted Mr. Simon of two predicate felonies:

armed robbery and armed home invasion. Mr. Simon was sentenced

to life without the possibility of parole for his murder

conviction and received concurrent sentences for his armed

robbery and armed home invasion convictions.4

Mr. Simon filed a motion for a new trial in 2016 before

4 Mr. Simon was sentenced to twenty to a twenty-five-year term

concurrent with his life term on his armed home invasion

conviction, and the same concurrent term on his armed robbery

conviction. Mr. Simon received another a four to five-year term

for his firearm conviction to be served concurrently with his

life term. He was also sentenced to serve twelve to fifteen

years from and after his life term on his assault and battery

conviction.

directly appealing his convictions to the SJC. He argued that

Attorney Solomon’s advice to speak to police, provided before

Attorney Solomon understood the subject of the police

investigation, violated Mr. Simon’s Fifth Amendment right

against self-incrimination, as well as his rights under art. 12

of the Massachusetts Declaration of Rights.5 The new trial

motion judge, who had also been the trial judge, denied Mr.

Simon’s motion, finding that even if Attorney Solomon’s advice

was ineffective, Mr. Simon was not prejudiced because his

statement to police likely would not have influenced the jury’s

conclusion.

The SJC then took up Mr. Simon’s consolidated appeal of his

convictions and the denial of his new trial motion directly. On

April 10, 2019, the SJC affirmed the denial of Mr. Simon’s new

trial motion, vacated his armed robbery conviction, and affirmed

his remaining convictions.

1. Mr. Simon’s Claims on Appeal and the Supreme Judicial

Court’s Rulings:

Mr. Simon presented four arguments in his consolidated

appeal, none of which the SJC found merited a new trial. Id.

These arguments reappear in the habeas petition before me.

First, Mr. Simon argued that he was deprived of his right

5 Article 12 of the Massachusetts Declaration of Rights provides,

in relevant part, “[n]o subject shall . . . be compelled to

accuse, or furnish evidence against himself.”

against self-incrimination provided by Fifth Amendment

constitutional and art. 12 of the Massachusetts Declaration of

Rights when Attorney Solomon rendered ineffective assistance

during Mr. Simon’s police interrogation. The SJC reviewed Mr.

Simon’s ineffective assistance claim under the more favorable

standard afforded to those convicted of first-degree murder in

Massachusetts: whether “(1) [] counsel's erroneous legal advice

caused the defendant to give his statement to police; and (2) []

the defendant's statement likely influenced the jury's

conclusion,” creating a substantial risk of a miscarriage of

justice. Simon, 120 N.E.3d at 685-86.

The SJC reaffirmed its holding in Commonwealth v. Celester,

45 N.E.3d 539 (Mass. 2016), that “a person's right to speak with

counsel is not ‘actualize[d] or substantively meaningful if

counsel fails to provide at least minimally competent advice’

and that counsel has ‘an obligation at the very least to discuss

with his client the self-incrimination privilege and the

potential consequences of giving a statement to the police.’”

Simon, 120 N.E.3d at 679 (quoting Celester). The SJC found that

Attorney Solomon gave erroneous legal advice, but the SJC did

not find that Solomon rendered ineffective assistance.

Ineffective assistance has been defined under Massachusetts law

in Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974) as

“serious incompetency, inefficiency, or inattention of counsel -

- behavior of counsel falling measurably below that which might

be expected from an ordinary fallible lawyer.” Id. at 883. The

SJC applied a more favorable test in Mr. Simon’s case because he

was convicted of first-degree murder, a setting in which Mr.

Simon only had to show: “counsel's erroneous legal advice caused

the defendant to give his statement to police; and (2) that the

defendant's statement likely influenced the jury's

conclusion.” Simon, 120 N.E.3d at 685 (citing Commonwealth v.

Celester, 45 N.E.3d 539, 555-556 (2016).

Under the SJC’s 33E review, reserved for capital cases, the

SJC will consider a defendant's ineffective assistance claim

even if the alleged action by trial counsel does not “constitute

conduct falling measurably below that of an ordinary fallible

lawyer” in order to determine if counsel’s advice gave rise to a

substantial risk of a miscarriage of justice. Commonwealth v.

Williams, 900 N.E.2d 871, 874 (2009). In this case, the SJC held

only that Mr. Simon “met the first prong” of the more favorable

test which required him to show Attorney Solomon gave erroneous

legal advice. The SJC did not characterize Mr. Solomon’s

service as ineffective at any point in its discussion of this

issue.

Mr. Simon’s appeal failed, however, because the SJC found

he had failed to demonstrate a substantial likelihood of a

miscarriage of justice. The two facts the jury learned from Mr.

Simon’s statement, his relationship with the Barbaro brothers

and his purported alibi, were established at trial by

“independent sources apart from the defendant’s statement to

police.” Simon, 120 N.E.3d at 687.

Mr. Simon may have told police of his relationship with

Bryan and Christopher Barbaro, but Bryan Barbaro’s grand jury

testimony and recorded 911 call established the same facts. The

jury also learned of Mr. Simon’s attempts to construct a false

alibi from Ms. Viel’s grand jury testimony that Mr. Simon called

her the morning after the shooting and asked her to tell police

that Mr. Simon was with her that night. Mr. Simon’s phone

records corroborated that he exchanged multiple calls with Ms.

Viel that morning. Mr. Simon’s statements to the officers, the

SJC found, were cumulative of other independent evidence and

did not likely influence the jury’s conclusion.

Second, Mr. Simon argued that the Commonwealth engaged in

impermissible burden shifting on two occasions, neither of which

were objected to at trial: 1) the prosecutor cross-examined

Attorney Solomon about his own failure to record Mr. Simon’s

police interview and 2) the prosecutor capitalized on his cross-

examination of Attorney Solomon by arguing in closing that Mr.

Simon did not request or want his police interview recorded.

The Supreme Judicial Court found no error in this regard.

Simon, 120 N.E.3d at 689. Because Mr. Simon’s trial counsel

cross-examined testifying police officers extensively on their

failure to record Mr. Simon’s interview, the SJC held the

Commonwealth could properly cross-examine Attorney Solomon about

his own recording capabilities in response. Id. at 688. The

SJC also held that in closing argument, the prosecutor “properly

responded [to arguments raised by the defense] by presenting

reasonable inferences from the evidence, including

justifications that explained why no recording was made.” Id.

689 (internal citations omitted).

Third, Mr. Simon raised a double jeopardy claim based on

his conviction of felony murder and two predicate offenses:

armed robbery and armed home invasion. The jury found Mr. Simon

guilty of first-degree murder on the sole theory of felony

murder. The Supreme Judicial Court recognized, and the

Commonwealth conceded, that the predicate felony underlying Mr.

Simon’s felony murder conviction was a lesser included offense

of felony murder. That underlying felony conviction was

therefore “duplicative of a felony-murder conviction, and [] the

underlying felony must accordingly be vacated.” Id. at 689.

The Supreme Judicial Court held that where, as in Mr.

Simon’s case, the defendant was convicted of two predicate

felonies, the appropriate remedy was to vacate the conviction of

the predicate offense that was most closely tied to the murder,

while leaving the second offense undisturbed. Id. at 690. In

this case, Mr. Simon’s armed robbery conviction was most closely

tied to Christopher’s death and the Supreme Judicial Court

vacated that conviction. Mr. Simon’s armed home invasion

conviction, however, was affirmed. Id.

Fourth, Mr. Simon argued that his felony murder conviction

should be set aside or reduced in the interest of justice.

Under MASS. GEN. LAWS ch. 278, § 33E, the Supreme Judicial Court

has the power to grant such relief in a capital case for “any []

reason that justice may require.” In Mr. Simon’s case, the

Supreme Judicial Court found “no basis to grant extraordinary

relief under G. L. c. 278, § 33E.” Simon, 120 N.E.3d at 690.

2. Mr. Simon’s Petition for Writ of Habeas Corpus

Mr. Simon raises the four claims he presented to the SJC as

a basis for federal habeas relief. He first argues, as he did

before the Supreme Judicial Court, that he was deprived of his

Fifth Amendment right to effective assistance of counsel during

his police interrogation. Mr. Simon specifically contends

before me that the Supreme Judicial Court erred in finding

Attorney Solomon’s ineffectiveness was unlikely to have

influenced the jury’s conclusion. Mr. Simon again argues that

the prosecutor impermissibly shifted the burden of proof by

encouraging the jury to infer that Mr. Simon had a duty to

record his own interrogation and produce it as evidence. Mr.

Simon also repeats his third claim on appeal, that his Fifth

Amendment right against double jeopardy was violated by his

felony murder and predicate felony convictions. Finally, Mr.

Simon contends the Supreme Judicial Court erred in denying him

statutory relief under MASS. GEN. LAWS ch. 278, § 33E.

II. STANDARD OF REVIEW

In reviewing a petition for federal habeas relief from a

state conviction, I am bound by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). AEDPA

places a heavy burden on a state defendant seeking a federal

writ of habeas corpus. If the state appellate court reached a

decision on the merits of the petitioner’s federal claim,6 the

petitioner must show that the state court’s adjudication either

“(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.” 28 U.S.C. § 2254(d)(1)-(2). In

essence, the federal habeas court reviews the state court’s

decision only for legal or factual determinations that are

6 I note that if the petitioner raises a federal claim before the

state court and the state court does not resolve it, “AEDPA

constraints do not apply . . . and a habeas court will afford de

novo review to the claim.” Cooper v. Bergeron, 778 F.3d 294,

299 (1st Cir. 2015). This refinement does not apply in this

case where the state court resolved all claims pending.

“objectively unreasonable,” not merely erroneous. Williams v.

Taylor, 529 U.S. 362, 409 (2000) (“an unreasonable application

of federal law” requires more than merely “an incorrect

application of federal law.”); Cooper v. Bergeron, 778 F.3d 294,

299 (1st Cir. 2015).

To succeed under the first prong of the AEDPA, a petitioner

must identify a clearly established federal legal principle

contrary to the state court’s decision. Lockyer v. Andrade, 538

U.S. 63, 71–72 (2003). “A legal principle is ‘clearly

established’ only when it is embodied in a holding of the

Supreme Court.” Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011)

(emphasis added). A state court decision is only “contrary to”

a Supreme Court holding when it “substantially differ[s]” from

applicable Supreme Court precedent. Williams, 529 U.S. at 405.

The petitioner may alternatively demonstrate that the state

court unreasonably applied federal law. A state court will be

found to have unreasonably applied clearly established federal

law only when it “identifies the correct governing legal

principle from [the Supreme] Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.”

Williams, 529 U.S. at 413; Brown, 630 F.3d at 67.

A petitioner may also obtain relief by showing that state

court reached an “unreasonable determination of the facts” at

issue in his or her case. When pursuing this approach, the

petitioner must show clear and convincing evidence of a factual

error that entitles him to relief. 28 U.S.C. § 2254(d)(2),

(e)(1).

III. ANALYSIS

As an initial matter, I observe that Mr. Simon has filed

his petition without the assistance of counsel. Under these

circumstances, his pleadings are “liberally construed” and “held

to less stringent standards than formal pleadings drafted by

lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per

curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976));

Hobson v. Corsini, 133 F. Supp. 3d 297, 304 (D. Mass. 2015). I

observe further, however, that Mr. Simon’s written pleadings are

the same as those fully briefed by able counsel before the SJC,

thus, as a practical matter, his contentions have been fully

developed by a lawyer on his behalf.

Mr. Simon’s petition, relying upon contentions made by

prior counsel before the SJC, does not make out a claim for

which I may grant him federal habeas corpus relief.

A. Ineffective Assistance of Counsel

Mr. Simon contends that the Supreme Judicial Court

unreasonably applied the teachings of Strickland v. Washington,

466 U.S. 668, 687 (1984) when holding he was not prejudiced by

the admission of his police statement. Strickland directed that

a defendant is entitled to a new trial if counsel's performance

“fell below an objective standard of reasonableness,” and the

defendant suffered prejudice. Id. at 689. To satisfy

Strickland’s prejudice prong, the defendant must raise “a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694.

The Commonwealth contends that because Attorney Solomon

rendered his allegedly erroneous advice during Mr. Simon’s “pre-

indictment custodial interrogation,” no federal right to

effective assistance of counsel under either the Sixth or the

Fifth Amendment was implicated. Although the Commonwealth’s

point is not without force, see Moran v. Burbine, 475 U.S. 412,

430 (1986) (Sixth Amendment right to counsel does not attach

during pre-charge interrogation); Sweeney v. Carter, 361 F.3d

327, 333 (7th Cir. 2004) (“as far as we can tell, the Supreme

Court has not . . . set forth a clearly established [Fifth

Amendment] right” to counsel in custodial interrogation), I need

not address this question, which was not actually addressed by

the SJC. This is because Mr. Simon has not met his burden to

show that the SJC was unreasonable in finding that Mr. Simon’s

police statement was unlikely to have made a difference to the

jury. See Lang v. DeMoura, 15 F.4th 63, 67-68 (1st Cir. 2021)

(“we need not decide” whether counsel’s performance was

deficient, “we need only hold, under AEDPA, that the Supreme

Judicial Court would hardly have behaved unreasonably” finding a

lack of prejudice).

Bearing in mind that “a state court must be granted a

deference and latitude that are not in operation when the case

involves review under the Strickland standard itself,” I hold

the SJC’s determination that Mr. Simon failed to show prejudice

not unreasonable. Harrington v. Richter, 562 U.S. 86, 101

(2011). I find it was not objectively unreasonable for the SJC

to conclude that, even had Mr. Simon’s police statement been

excluded, the jury had been fully exposed to the inculpatory

information in his statement through independent evidence.

The jury heard Bryan Barbaro’s grand jury testimony, during

which he described Mr. Simon’s relationship with himself and

with Christopher in far greater detail than did Mr. Simon in his

police statement. News of Mr. Simon’s false alibi also reached

the jury independently of his police statement.7 On the evidence

before me, I cannot say that the Supreme Judicial Court’s

decision “was so lacking in justification that there was an

7 I have reviewed Anunzie Viel’s trial testimony and the portions

of her grand jury testimony introduced at trial. The jury did,

indeed, learn from Ms. Viel’s prior inconsistent grand jury

testimony that Mr. Simon called her the morning following the

shooting and asked her to tell police that Mr. Simon was with

Ms. Viel and her girlfriend, Ms. Mazil, the night before. For

her part, Ms. Mazil testified at trial that she was not with Mr.

Simon on the night of the shooting.

error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington, 562

U.S. at 103.

B. Burden-Shifting Claim

1. Presentment

Under AEDPA, a state petitioner must first exhaust all of

his state remedies before petitioning for federal relief. 28

U.S.C. § 2254(b)(1)(A), (b)(2). “A habeas petitioner must have

presented both the factual and legal underpinnings of his claim

to the state courts in order for [me] to find it exhausted.”

Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). The

Commonwealth argues that Mr. Simon failed to present his federal

claim of prosecutorial burden-shifting to the Supreme Judicial

Court because his appellate filings did not explicitly invoke

his federal constitutional right to be presumed innocent and to

due process.

A defendant’s right to be presumed innocent until proven

guilty is a long-established, “specific right afforded to the

accused under the United States Constitution,” Pagano v. Allard,

218 F. Supp. 2d 26, 34 (D. Mass. 2002) (internal quotations and

citations omitted), one so fundamental as to be “axiomatic and

elementary.” Coffin v. United States, 156 U.S. 432, 454 (1895).

It is well understood that a prosecutor violates that right when

the prosecutor shifts the burden of proof as to any element of

the charged offense onto the defendant’s shoulders. “Both state

and federal courts have considered such statements made by

prosecutors to be erroneous and improper.” Pagano, 218 F. Supp.

2d at 33.

Mr. Simon’s burden in fairly presenting his burden-shifting

claim to the Supreme Judicial Court is not as rigid as the

Commonwealth suggests. The proper inquiry is essentially one of

probability: Can it be said the Supreme Judicial Court was

“likely alerted to” Mr. Simon’s federal claim. Nadworny, 872

F.2d at 1099, 1102. After reviewing the filings submitted to

the SJC in this case, I conclude that the Supreme Judicial Court

was likely alerted to Mr. Simon’s dual state and federal claim.

First, Mr. Simon’s SJC brief cited Supreme Court precedent,

see Coffin, 156 U.S. 432 (1895), for the proposition that the

burden of proof is always on the government because a defendant

is presumed to be innocent of all charges unless the government

has proven each and every element beyond a reasonable doubt, and

the prosecutor cannot claim that the defendant has a burden to

prove his innocence. See id. at 460-461. Mr. Simon also cited

several Massachusetts court decisions that themselves explicitly

rely on this same clearly established principle of federal law.8

8 Mr. Simon’s SJC brief cited Commonwealth v. Thomas, 514 N.E.2d

1309, 1312 (Mass. 1987), which in turn cited Franklin v.

Francis, 471 U.S. 307 (1985) for the federal constitutional

proposition that burden-shifting statements “adversely implicate

Where, as here, the petitioner cites to “state court

decisions which rely on federal law or articulation of a state

claim that is, ‘as a practical matter, [ ] indistinguishable

from one arising under federal law’ [the petitioner] may . . .

satisfy the exhaustion requirement.” Clements v. Maloney, 485

F.3d 158, 162 (1st Cir. 2007) (alterations in original)(quoting

Nadworny, 872 F.2d at 1099-1100); see Sanchez v. Roden, 753 F.3d

279, 294 (1st Cir. 2014). Mr. Simon’s impermissible burden-

shifting claim invoked the federal constitutional right to be

presumed innocent and his filings fairly and properly alerted

the Supreme Judicial Court to the federal nature of his claim.

2. Adequate and Independent State Grounds

The Commonwealth next argues Mr. Simon’s claim fails

because the SJC rested its decision on adequate and independent

state grounds, specifically the Massachusetts procedural rule

that a claim not raised at trial is waived on appeal. Gunter v.

the defendant's fundamental right to be presumed innocent.”

Thomas, 514 N.E.2d at 1312. He also cited the SJC’s warnings in

Commonwealth v. Habaerk, 520 N.E.2d 1303, 1307 (Mass. 1988)

against a prosecutor’s use of rhetorical questions that could be

perceived as unconstitutional burden-shifting; the Habaerk Court

attributed this proposition to the First Circuit’s decision in

United States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985). For

its part, the Commonwealth’s brief cited, and the SJC

referenced, Commonwealth v. Tu Trinh, 940 N.E.2d 871 (Mass.

2011). In Tu Trinh, the SJC explicitly recognized a burden-

shifting claim as a contention of “a violation of the

defendant's due process rights,” 940 N.E.2d at 878, citing the

United States Supreme Court’s decision in Francis v. Franklin.

Maloney, 291 F.3d 74, 79 (1st Cir. 2002).

If the State court dispenses with a petitioner’s federal

claim on adequate and independent procedural state ground,

federal habeas relief is precluded. Burks v. Dubois, 55 F.3d

712, 716 (1st Cir. 1995). In such a case, the petitioner can

“succeed in his habeas case only by showing cognizable cause

for, and cognizable prejudice from, his procedural default or,

alternatively, by demonstrating that the federal court's failure

to address the claim on habeas review will occasion a

miscarriage of justice.” Id.

Here, I find Mr. Simon’s burden-shifting claims were

unpreserved at trial and therefore waived. For its part, the

SJC reviewed these claims only for a substantial likelihood of a

miscarriage of justice. Simon, 120 N.E.3d at 688. In reaching

my determination, I find the SJC rested its decision on the

Massachusetts contemporaneous objection rule and evaluated it

only as a matter of Massachusetts state law.

a. Massachusetts Contemporaneous Objection Rule

Under Massachusetts law, claims unobjected to at trial are

waived on appeal, though appellate courts still consider the

merits of the claim in a review for a substantial risk or

likelihood of a miscarriage of justice. Mass. R. Crim. P. 22.

See Commonwealth v. Ferreira, 955 N.E.2d 898, 904 (Mass. 2011);

see also Burks, 55 F.3d at 716. The First Circuit has held

“with a regularity bordering on the monotonous, that the

Massachusetts requirement for contemporaneous objections is an

independent and adequate state procedural ground, firmly

established in the state's jurisprudence and regularly followed

in its courts.” Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir.

2010) (listing First Circuit cases); Burks, 55 F.3d at 716.

A Massachusetts appellate court’s review of unpreserved

claims under the substantial likelihood of a miscarriage of

justice standard does not constitute the state court’s waiver of

the contemporaneous objection rule. Tart v. Massachusetts, 949

F.2d 490, 496 (1st Cir. 1991) (“the mere fact that a state

appellate court engages in a discretionary, and necessarily

cursory, review under a ‘miscarriage of justice’ analysis does

not in itself indicate that the court has determined to waive an

independent state procedural ground.”). The contemporaneous

objection rule is only waived when the “court has made it

‘reasonably clear that its reasons for affirming a conviction

rest upon its view of federal law.’” Id. (quoting Doucette v.

Vose, 842 F.2d 538, 540 (1st Cir. 1988)).

The SJC cannot be said to have waived the independent

procedural ground of the contemporaneous objection rule here.

The SJC explicitly noted that it reviewed any error in the

Commonwealth’s cross-examination of Attorney Solomon and in the

prosecutor’s closing argument for a substantial likelihood of a

miscarriage of justice. Simon, 120 N.E.3d at 688. “This method

of analyzing criminal appeals based on claims defaulted at trial

is not uncommon in Massachusetts appellate courts.” Rivera v.

Bergeron, 755 F. Supp. 2d 326, 329 (D. Mass. 2010) (internal

citations and quotations omitted). A limited review of the

petitioner’s claim on state law grounds does not demonstrate

that the Supreme Judicial Court rested its decision on its view

of federal law. Tart, 949 F.2d at 496.

To the extent the SJC can be said to have evaluated Mr.

Simon’s burden-shifting claim on its merits, it did so under

state law. Simon, 120 N.E.3d at 688. The Supreme Judicial

Court relied almost exclusively on Commonwealth v.

DiGiambattista, 813 N.E.2d 516 (Mass. 2004) to hold that any

reference to the defendant’s failure to record his interrogation

was permissible to address reasons why the police failed to make

such a recording. Id. I will not infer a waiver of the

Massachusetts contemporaneous objection rule solely on this

state-law analysis. See Mathews v. Silva, No. 09-cv-12200-FDS,

2020 WL 1703795, at *7 (ECF No. 137)(D. Mass. Apr. 8, 2020)

(citing Tart, 949 F.2d at 496).

b. Cause and Prejudice

I find no separate cause to lift the procedural bar to

federal habeas relief. Cause to consider a claim decided on

adequate and independent state procedural grounds must “relate

to an objective factor, external to the defense, that thwarted

(or at least substantially obstructed) the efforts of the

defendant or his counsel” to meet state procedural requirements.

Burks, 55 F.3d at 717. For Mr. Simon, the relevant cause must

relate to defense counsel’s failure to object to the

prosecutor’s cross-examination and closing argument. This

species of cause alone does not amount to material cause in this

setting. Burks, 55 F.3d at 717.

Having found no cause excusing Mr. Simon’s failure to

object to claimed burden-shifting conduct, I need not address

the prejudice prong in great detail. See id. at 716 n.3.

Nevertheless, I have, in the alternative, reviewed the record

and found the prosecutor’s conduct did not constitute actual and

substantial prejudice to Mr. Simon. The trial judge, in fact,

instructed the jury to weigh evidence of Mr. Simon’s alleged

statement “with caution and care” because the Commonwealth

failed to record the interview. Simon, 120 N.E.3d at 871.

Moreover, this is not a case in which failure to examine Mr.

Simon’s constitutional claim would result in a fundamental

miscarriage of justice. I need only reach Mr. Simon’s

constitutional claim if I find “a probability that a reasonable

jury would not have convicted but for the constitutional

violation.” Burks, 55 F.3d at 718. Here, I find no probability

that the jury would have reached a different conclusion had the

prosecutor forgone questioning Attorney Solomon about his own

ability to record Mr. Simon’s interview.

3. The Supreme Judicial Court’s Analysis

Even if Mr. Simon’s claim of burden-shifting were not

procedurally defaulted, he has not shown that the Supreme

Judicial Court’s adjudication of his claim was legally or

factually unreasonable.

To be sure, federal law recognizes “the rule against [a

prosecutor] telling the jury that the defendant has a burden of

proving his innocence.” United States v. Roberts, 119 F.3d

1006, 1015 (1st Cir. 1997); United States v. Diaz-Diaz, 433 F.3d

128, 135 (1st Cir. 2005). The SJC did not hold otherwise.

Instead, the Supreme Judicial Court held that 1) the prosecutor

fairly responded to defense arguments and 2) there was no

substantial likelihood that the jury would have misapprehended

the Commonwealth’s burden where, as in this case, it was

properly instructed as to the Commonwealth’s burden of proof and

also instructed to weigh Mr. Simon’s police statement with care

and caution. Simon, 120 N.E.3d at 688-670. The SJC’s reasoning

was not objectively unreasonable under these circumstances.9

9 The First Circuit, applying clearly established federal law,

has reached the same conclusion on multiple occasions. See,

e.g., United States v. Glover, 558 F.3d 71, 77 (1st Cir. 2009);

United States v. Wilkerson, 411 F.3d 1, 8 (1st Cir. 2005);

United States v. Adams, 305 F.3d 30, 38 (1st Cir. 2002).

C. Double Jeopardy

The Double Jeopardy clause of the Fifth Amendment protects

a defendant from receiving multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). However, “if

the legislature decides to impose multiple punishments for the

same offense, it may do so” without running afoul of the double

jeopardy clause so long as the convictions are not duplicitous.

United States v. Patel, 370 F.3d 108, 114 (1st Cir. 2004).

Mr. Simon seems to argue that his conviction of any of the

predicate felonies underlying his felony murder conviction

violates double jeopardy and the Supreme Judicial Court

contradicted clearly established law by holding otherwise.

Because I see no contradiction between the Supreme Judicial

Court’s handling of Mr. Simon’s double jeopardy claim and

Supreme Court case law, I do not grant Mr. Simon relief on this

claim.

The Supreme Court has held that “the crime generally

described as felony murder [is not considered] a separate

offense distinct from its various elements. Rather, we treat[] a

killing in the course of a [predicate felony] as itself a

separate statutory offense, and the [predicate felony] as a

species of lesser-included offense.” Illinois v. Vitale, 447

U.S. 410, 420 (1980). Thus, double jeopardy may bar a

subsequent prosecution for a specific predicate felony when the

defendant has been convicted of felony murder on the basis of

that conviction. Id. (citing Harris v. Oklahoma, 433 U.S. 682

(1977) (per curiam)). Accordingly, the SJC vacated Mr. Simon’s

conviction and sentence for armed robbery, finding that Mr.

Simon’s armed robbery conviction was a lesser included offense

of his felony murder conviction. Simon, 120 N.E.3d at 690.

The only question remaining is whether the Supreme Judicial

Court’s decision to affirm Mr. Simon’s armed home invasion

conviction was contrary to clearly established federal law. Put

another way, I must determine if Mr. Simon’s armed home invasion

conviction was effectively a lesser-included offense of his

felony murder conviction as well. See United States v. Medina-

Villegas, 700 F.3d 580, 585 (1st Cir. 2012) (citing Brown, 432

U.S. at 169).

The SJC has made clear that the felony underlying a felony

murder conviction “is always a lesser included offense” of the

murder. Commonwealth v. Gunter, 692 N.E.2d 515, 527 (Mass.

1998). To meet the requirements of the Massachusetts felony

murder statute, the Commonwealth must prove 1) that a homicide

occurred, while 2) the defendant committed or attempted to

commit a predicate life felony. MASS. GEN. LAWS ch. 265, § 1.

Because the elements of the underlying felony conviction are

necessary to prove the felony murder, the conviction of the

underlying felony is duplicative of the murder.10 Gunter, 692

N.E.2d at 527.

Here, however, the jury did not need to find each element

of armed home invasion to convict Mr. Simon of felony murder.

The jury only had to find that Mr. Simon shot Christopher

Barbaro while committing or attempting to commit at least one

predicate life felony. Mr. Simon’s armed robbery conviction

satisfies the predicate felony element of his felony-murder

conviction. Armed home invasion, therefore, is not a necessary

element of the felony murder offense and is not duplicative of

felony murder.

Although the underlying conduct of Mr. Simon’s felony

murder conviction and armed home invasion conviction do overlap,

“[t]he same actions can constitute an offense under two distinct

statutes and can be prosecuted separately under each statute as

long as the statutes do not define a single offense within the

meaning of Blockburger.[11]” United States v. Colon-Osorio, 10

F.3d 41, 46 (1st Cir. 1993); Patel, 370 F.3d at 114. The SJC’s

10 Massachusetts courts apply the familiar test articulated by

the United States Supreme Court in Blockburger v. United States,

284 U.S. 299, 304 (1932). See Commonwealth v. Vick, 910 N.E.2d

339, 431 (Mass. 2009). If, to prove one offense the

Commonwealth had to prove each element of the other offense, the

offenses are duplicative. Blockburger, 284 U.S. at 304. Each

offense must contain an element of proof that the other does

not. Id.

11 See supra note 10.

decision to affirm Mr. Simon’s armed home invasion conviction

while vacating his armed robbery conviction was not objectively

unreasonable. I will not grant Mr. Simon’s petition on this

claim.

D. Relief Pursuant to § 33E

Mr. Simon asserts that the SJC abused its discretion by

denying him relief pursuant to MASS. GEN. LAWS ch. 278, § 33E.

Under Section 33E, the SJC will review a capital defendant’s

case, in its entirety, in order to consider an issue that raises

a substantial likelihood of a miscarriage of justice.

Commonwealth v. Millien, 50 N.E.3d 808, 819 n.12 (2016). If the

SJC determines that the verdict was against the law or the

weight of the evidence, or if newly discovered evidence or trial

errors raise a substantial likelihood of a miscarriage of

justice, the SJC may grant the defendant a new trial or reduce

the verdict to a lesser included offense. MASS. GEN. LAWS ch. 278,

§ 33E. The Supreme Court has made clear that “[i]nsofar as

Petitioner argues that there is an error with respect to Section

33E relief, [a federal court] cannot review that claim.” Muller

v. Goguen, 385 F. Supp. 3d 121, 129 (D. Mass. 2019) (citing

Estelle v. McGuire, 502 U.S. 62, 68 (1991) for the proposition

that “a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the

United States.”). Section 33E presents a state statutory claim

not based in federal law. It does not separately support

federal habeas relief.

IV. CONCLUSION

For the reasons set forth more fully above, I GRANT

Respondent’s Motion for Judgment on the Pleadings.

In accordance with First Circuit Local Rule 22.0(a), I

hereby deny a certificate of appealability concerning the denial

of petitioner's motion under 28 U.S.C. § 2254. The petitioner

has failed to make a substantial showing of the denial of a

constitutional right with respect to his claims.

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE