Lee v. Alves

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

BRIAN LEES a/k/a )

BRIAN LEE, )

)

Petitioner, )

)

v. ) CIVIL ACTION

) No. 22-11379-WGY

NELSON ALVES, )

)

Respondent. )

___________________________________)

YOUNG, D.J. September 27, 2023

MEMORANDUM AND ORDER

I. INTRODUCTION

For the reasons stated below, petitioner Brian Lees a/k/a

Brian Lee (“Lees”)1 28 U.S.C. § 2254 petition for a writ of

habeas corpus is DENIED and this action is DISMISSED with

prejudice. All pending motions are DENIED. Pursuant to 28

U.S.C. § 2253(c)(2) and Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District courts, a

certificate of appealability is DENIED because Lees has not made

a substantial showing of the denial of a constitutional right.

The Clerk is directed to enter a separate order of dismissal.

1 The Court uses petitioner’s name as he signs his name.

the Court notes that his name appears Brian Lee as to the

relevant state filings.

While under certain circumstances inaccuracies in a

transcript that adversely affect the outcome of a criminal

action may violate a criminal defendant’s constitutional rights,

there is no constitutional right to cling to an inaccurate

transcript in a jury voir dire. Lees, through his pro se

petition, attempts to capitalize on what the Massachusetts

Supreme Judicial Court determined was a mere typographical error

in a transcript. The error was caught only when the SJC was

able to obtain, sua sponte, but with notice to the parties,

audio recordings of the jury voir dire proceedings from the

trial court post-oral argument of Lees’ plenary direct appeal of

his first-degree murder conviction for patricide.

Lees was represented by counsel in his direct appeal.

Post-decision, but before firing his lawyer, Lees moved pro se

for rehearing on the issue of the newly discovered audiotapes,

which was denied. Lees’ counsel, after listening to the

audiotapes apparently agreed with the SJC’s correction, and in

the context of a motion for withdrawal indicated to the SJC that

there was no reasonable basis for further proceedings.

Lees fired his lawyer and, proceeding pro se, after

unsuccessfully attempting to move for a new trial and denial of

a gateway motion to appeal the denial of that motion, now

petitions this Court for a writ of habeas corpus claiming that

his constitutional rights were violated based upon the original,

incorrect transcript, and the corrected transcript.

Alternatively, he claims that his Fourteenth Amendment

procedural due process rights were violated by the Supreme

Judicial Court’s procedure of sua sponte correction of the

record.

After careful review of the parties’ filings, relief must

be denied because Lees has not met his high burden of proving

that the state court's decisions as to all grounds were

“contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States,” or were “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).

II. FACTS

A. Lees’ Trial and Conviction for Murder in the First

Degree with Extreme Atrocity or Cruelty of his Father

1. Lees’ Indictment for Murder in the First Degree

On January 23, 200, Lees was indicted for Murder in the

First Degree pursuant to Mass. Gen. Laws ch. 265, §1, for

beating his father to death. Indictment, ECF No. 23-2 93. The

facts of Lees’ underlying state criminal action are taken from

the Supreme Judicial Court’s 2018 opinion:

The victim was the defendant's father. Ruth

Collins and her daughter, Caron Collins, had known the

defendant for several years at the time of the

homicide . . . The defendant was friendly with Caron

and had done housework for Ruth. On October 28, 2006,

Ruth saw the defendant walk behind her house carrying

white garbage bags. Soon after, the defendant left

without any garbage bags. Ruth and Caron checked the

backyard for the garbage bags. They found white

garbage bags in a compost bin, and inside one of the

garbage bags, they found a human head. When police

arrived, officers found two arms and two legs in the

other garbage bags.

Ruth reported that she had seen the defendant

carrying white garbage bags behind her house. Police

officers learned that the defendant's father had

sought an abuse prevention order against him three

days earlier . . . Officers went to the defendant's

father's house to check on his safety. In the house,

officers found white garbage bags and a human torso in

a plastic tub. A fingerprint on the tub was later

identified as the defendant's.

That same day, the defendant spoke with the

police. He told detectives that he had dismembered

his father but not killed him. The defendant also

told police that he had thrown away his father's

mattress, sheets, and blanket because they were

covered in blood. The medical examiner testified that

multiple blows to the head caused the victim's death.

The defendant's medical expert testified that the

victim's death was a homicide.

At trial, the defendant represented himself . . .

and conferred with standby counsel. His theory of his

defense was that the Commonwealth did not meet its

burden of proof, the police and medical examiner

altered evidence, and the victim was not the

defendant's father.

Commonwealth v. Lee, 479 Mass. 558-559 (2018).2

2 The SJC referred to Lees by the surname “Lee” which was

the surname that appeared on the indictment. Id. n. 1.

2. Lees Represented Himself at Trial with Standby

Counsel

Lees had multiple appointed criminal counsel. The trial

court found Lees’ attempt to fire his third lawyer as a delay

tactic:

THE COURT: The reason you're not on trial is because

you keep on trying to fire your lawyers.

THE DEFENDANT: Well, they're preventing me from

asserting my rights.

THE COURT: Well, we're not going to argue, Mr. Lee.

Your motion for a speedy trial carries no weight with

me given your dilatory tactics. Go on.

. . . .

THE COURT: The defendant's motion to discharge Ms.

Regan is denied. Ms. Regan's motion to withdraw is

also denied. I find the defendant has not proffered

good cause for discharge. I find has engaged in

dilatory tactics, as well. What I will tell you, Mr.

Lee, is the following. This case raises the issue of

the potential waiver of counsel by conduct. You need

to be explicitly warned of the following, and I will

give you this express warning, Mr. Lee. If you engage

in any abusive conduct towards your attorney, you will

lose your constitutional right to an appointed

attorney, and you will be forced to represent

yourself. As I told you last time in Court or a prior

time, when I appointed Ms. Regan, she's your last

lawyer. Your motion to discharge her has not been made

in good faith, so therefore discharge is not granted.

.

Oct. 5, 2009 Hearing Tr. 20-23, ECF No. 15-20 (emphasis added).

On November 12, 2009, after hearing and careful

consideration by the trial court –- and upon Lees’ insistence --

Lees was ultimately permitted to represent himself, with his

third attorney as stand-by counsel.3

3. Jury Voir Dire and Colloquy with Juror No. 226

On November 17, 2009, trial commenced with jury selection.

The Court held a comprehensive voir dire of the putative jurors,

including a questionnaire. Nov. 17, 2009 Tr. 87-96, ECF No. 15-

8 88-96.

The Court explained the jury selection process and that

after individual questioning of the juror, the exercise of

preemptory challenges “on the spot.” Tr. ECF No. 15-8 74.4

3 The Supreme Judicial Court determined that the trial

court “conducted a proper colloquy with [Lees] about waiving his

right to counsel”, Lee, 479 Mass. at 559 n. 4, which is

confirmed by the record.

4 The trial court was clear in its instruction regarding

the jury selection process:

THE COURT: And, but you will have to exercise your

peremptory challenges on the spot. If you don’t want

a juror after we’ve done the interview you have to

declare yourself. The juror will step back here so

that they won’t know what we’re talking about and I’ll

ask both prosecution and defense, do you want this

juror? And you have to tell me on the spot I don’t

want that juror or I agree to keep that juror. . . . .

And as each juror is interviewed and you hear what

they have to say then they’ll step back and I’ll ask

the prosecutor, do wish to have this juror? She’ll

either say, I’m content or I strike the juror. And

that will be charged against her 16. And then if she

says content, I’ll ask you, do you want to have this

juror or strike this juror? And every juror you

strike counts against your 16. Tr. 15-8, 74-75.

The trial court undertook voir dire questions in open

court, followed by individual voir dire. With respect to Juror

No. 226 the following was originally -- but the highlighted

portion erroneously -- transcribed:

THE JUROR: Hi.

THE COURT: You didn’t raise your hand at all, so

please be seated, I have some private questions for

you.

THE JUROR: Sure.

THE COURT: Have you fully and fairly filled out

this part of the questionnaire about your experiences

with the law? It asks about whether you’ve been a

juror before, civil cases, arrests, convictions that

sort of thing.

THE JUROR: Yes.

THE COURT: Okay. Have you close family member or

close and dear friend been a victim of domestic

violence or been accused of domestic violence?

THE JUROR: No, sir.

THE COURT: All right. In this trial you will see

some graphic photos of body parts, and the question is

whether you think that would affect your ability to be

a fair and impartial juror?

THE JUROR: Yes.

THE COURT: All right, do you have any other

concerns about being a fair and impartial juror for a

first degree murder prosecution?

THE JUROR: No, sir.

THE COURT: Okay. Can you help us as a juror, can

you sit for the days this trial goes on and give us a

verdict?

THE JUROR: I believe so.

THE COURT: Thank you. Please step back I’ll give

you an answer in just a moment.

MS. BROADBENT: The Commonwealth is content.

MR. LEES: I am content with this juror.

THE COURT: You are content?

MR. LEES[]: Yes.

THE COURT: All right, he will become Seat Number

2. You’re fully qualified for Seat 2 and you’ll be

upstairs with the other juror who has been picked so

far.

THE JUROR: Okay.

THE COURT: You’ll be on this trial.

Nov. 17, 2009 Trial Tr. 106-107, ECF No. 15-8 106-107

(emphasis added).

After a few more jurors, Lees stepped away to confer with

his standby counsel, and when he returned sought to belatedly

challenge Juror No. 226, who was at that point seated as Juror

No. 2:

MR. LEES[]: Your Honor, I didn’t understand [Seat

Number] 2 juror then and I would like to challenge

Juror [Seat] Number 2 if that’s possible if you’d let

me do this one time.

THE COURT: No. I decline to do that.

[MR. LEES:] It was a misunderstanding.5

5 Lees asserts –- and it is not disputed -- that he, not the

trial court, said “It was a misunderstanding.” This appears to

be correct. Either way, it makes no difference here.

THE COURT: I understand. Your rights are saved on

it but you indicated you were content and the record

so reflects. I’m not going to go backwards.

Id. Jury selection continued, and a jury was empaneled.

4. Lees is Convicted by Jury of Murder in the First

Degree with Extreme Atrocity and Cruelty

On December 9, 2009, after representing himself at trial,

Lees was convicted by a jury as to “Guilty of Murder in the

First Degree Based the theory of: Extreme Atrocity or Cruelty.”

Verdict, ECF No. 23-2 94. Lees was sentenced to life in prison

without the possibility of parole. December 9, 2009 Trial Tr.

ECF No. 15-19 12; Mittimus, ECF No. 31-1 1.

B. Lees’ Section 33E Plenary Direct Appeal

Lees appealed. Notice of Appeal, ECF No. 23-2 95. Unlike

other criminal matters, under Massachusetts law, First Degree

murder convictions are provided a higher level of scrutiny, and

are automatically elevated to plenary review by the Supreme

Judicial Court. See Mass. Gen. Laws ch. 278, § 33E (“Section

33E”).6 That extra degree of protection comes with a cost: it

limits a defendant’s ability to appeal further post-conviction

motions. Id.

6 Section 33E provides in pertinent part that “[i]n a

capital case as hereinafter defined the entry in the supreme

judicial court shall transfer to that court the whole case for

its consideration of the law and the evidence.” Mass. Gen. Laws

Ann. ch. 278, § 33E.

1. Lees Appeals Based Upon Juror No. 226 Response In

Original Transcript

Consistent with Lees’ dilatory practice at trial, he went

through several appointed counsel during his direct appeal.

Eight years later, on April 17, 2017, through his fifth

appointed direct-appellate counsel, Lees filed his appellate

memorandum. His appeal centered on one argument: that the trial

court’s failure to excuse Juror No. 226 deprived Lees of a fair

trial, in addition to the general claim that the Court ought

vacate the conviction under Section 33E.

Lees claimed that Juror No. 226 was biased because of the

following colloquy during jury voir dire as erroneously set

forth in the original transcript. As recounted by the SJC the

transcript read:

THE JUDGE: “All right. In this trial you will see some

graphic photos of body parts, and the question is

whether you think that would affect your ability to be

a fair and impartial juror?”

THE JUROR: “Yes.”

THE JUDGE: “All right, do you have any other concerns

about being a fair and impartial juror for a first

degree murder prosecution?”

THE JUROR: “No, sir.”

Lees, 497 Mass. at 560 (emphasis in original). On its face,

this appeared to reveal that Juror No. 226 might not be able to

be impartial. The SJC found that neither Lees nor the

Commonwealth opposed seating the juror at that point, but a few

minutes later a request to strike was denied. Id.

Lees’ appeal to the SJC was “premised on the trial

transcript.” Id. Neither party, however, had reviewed the

audiotapes of the hearing, and apparently Lees’ appellate

counsel had been misinformed that no audio existed. Id.

2. The SJC Inquires About Audiotapes of Juror No. 226

Voir Dire at Oral Argument, Sua Sponte Obtains the

Audiotapes, and Notifies the Parties

The oral argument on direct appeal was held on January 9,

2018 based upon the original transcript.7 On January 25, 2018,

Lees’ counsel filed a letter with the SJC, recounting the SJC’s

inquiry into the parties’ ability to obtain the audio recording

of the proceeding, and the Suffolk County Clerk’s office and the

court reporter informing her that the recording did not exists.

See Letter, ECF No. 32-1. Nevertheless, after hearing the

parties’ oral argument, the SJC sua sponte “acquired the

transcriptionist's audio recordings and learned that the

transcript was inaccurate.” Id. The SJC’s notice on the docket

reads:

Notice: This court has obtained the audio recording

dated November 17, 2009 from the Superior Court.

7 A video recording of the hearing can be found at the SJC’s

YouTube page at https://www.youtube.com/watch?v=N20Verw5aqk.

SJC Docket, Doc. #54 (emphasis added). Two months later, on May

7, 2018, Lees’ appellate counsel moved for a copy of the audio

tapes. SJC Docket, Doc. #55. That motion was referred to a

single justice.

The pending motion did not give the SJC pause, and the SJC

issued its decision on May 15, 2018.

3. The SJC Sua Sponte Corrects the Transcript In Its

Decision Affirming the Conviction Two Months Later

The SJC sua sponte corrected the record in its decision as

follows:

THE JUDGE: “You will see in this trial some graphic

photos of body parts. The question is whether you

think you could see them and remain a fair and

impartial juror.”

THE JUROR: “Yes.”

THE JUDGE: “Do you have any other concerns about

being a fair and impartial juror in a first degree

murder prosecution?”

THE JUROR: “No, sir.”

Id. at 560 (emphasis in original).8

8 Lees claimed in his Reply that the audio had not been

provided “in its entirety.” Reply 6. The Court determined that

the corrected portion of the record was necessary to complete

the record. This Court requested a copy of the audio clip from

the Respondent, which was provided to the Court, though the

denial of peremptory challenge was not included (and not

necessary). See Order, ECF Nos. 39 and 41. Pursuant to 2254

Rule 7(c), an upon Lees’ motion, the Court provided Lees “an

opportunity to admit or deny the correctness” of that audio clip

by ordering the respondent an opportunity to review a copy of

the exhibit provided to the Court. See Order, ECF No. 45. Lees

disputes the “correctness of document 41-1 (audio file) and its

With this correction, the SJC affirmed the conviction

holding there was no structural error of seating the juror

and there was no basis to reduce the degree of guilt or

order a new trial:

The judge conducted a sufficient colloquy with juror

no. 226 to determine that he would not be a biased

juror. We therefore discern no error. We have

thoroughly reviewed the entire record in accordance

with our duty under G. L. c. 278, § 33E, and decline

to reduce the degree of guilt or order a new trial.

The defense that the Commonwealth did not meet its

burden is without merit; the physical and eyewitness

evidence against the defendant was overwhelming.

During closing argument and cross-examination, the

defendant advanced theories about the police and

medical examiner fabricating evidence and

misidentifying the victim as his father. Neither of

these theories had any evidentiary support.

Given the transcription error, we conclude that the

defendant should not be subject to the gatekeeper

provision of G. L. c. 278, § 33E, for any issue that

was not apparent from the transcript and could only be

discovered from the audio recording of the

proceedings.

Lees, 479 Mass. at 560-561.

The Supreme Judicial Court noted “[a]fter oral argument,

the defendant also sought the transcriptionist's audio

recordings and was erroneously informed that no recordings of

content for the use of anything other than to establish the

facts of his claim set forth in Ground Two.” Resp. Court Order

Reply to Doc. No. 41-1. The Court has reviewed the portion of

the audio clip that the SJC corrected. The Court confirms that

the SJC’s correction of the record is accurate. Other than his

objection, Lees provides no evidence that the SJC’s correction

is inaccurate or inauthentic, and the Court rejects the

objection. The audio transcript is admitted over objection as

part of the record without limitation.

the trial existed. Upon release of this opinion, we will ensure

that the defendant will have access to all recordings of the

trial.” Id. at 560 n 1.

On May 21, 2018, Lees’ counsel filed a motion to stay

issuance of the rescript:

Central to the decision was the recording of the

voir dire in the trial. Mr. Leess has sought a copy

of this recording, but was misinformed that none

existed. After learning that the Court had obtaineda

copy of the recording, Mr. Leess filed a motion to

obtain a copy of it. That motion was referred to the

single justice. . . . Mr. Leess has not yet received

access to these recordings. . . . Accordigly, Mr.

Leess requests tha the rescript be stayed sixty days

so that thi counsel has the opportunity to access the

recordings and share them with him, and make any

further argument to this Court based thereon.

Lees’ Mot. Stay Issuance Rescript 246-248, ECF No. 33.

On May 31, 2018, the SJC allowed the motion to obtain a

copy of the audio recording. See DJC Docket Com. v. Leess, SJ-

2018-M023, Doc. No. 2.

On June 4, 2018, although represented by counsel, Lees

filed a pro se motion for reconsideration en banc. In that

motion, Lees asserted, among other things, that a new hearing

would be necessary so that the panel could consider “the

transcript record is correctly transcribed for the trial of the

case.” Id. at 2, ECF No. 33 250.

On June 29, 2018, the SJC denied the motion, which was

copied to Lees and his counsel. Notice Denial Pet. Rehearing,

ECF No. 33 252; SJC Docket, Doc. 61, ECF No. 33 100.

On September 12, 2018, Lees’ appellate counsel having

listened to the recordings, moved to withdraw at the request of

Lees, noting that there was nothing further to argue:

Central to the [SJC’s] decision was the audio

recording of the voir dire in the trial. Mr. Lees had

sought a copy of this recording, but had been

misinformed by the clerk's office that none existed. .

. . . Undersigned counsel since has reviewed that

recording, and perceives no reasonable grounds for

further proceedings in this Court. . . . . Mr. Lees

has asked that undersigned counsel withdraw from the

case. Upon counsel's information and belief, Mr. Lees

plans to proceed pro se.

Counsel’s Mot. Withdraw, ECF No 33, 7-8 (emphasis added). On

September 21, 2018, Lees was ordered to respond. SJC Docket,

Doc. No. 65.

On September 28, 2018, Lees responded to his counsel’s

motion to withdraw, asking for new counsel claiming, among other

things, that he had not received copies of the recordings, that

his counsel had refused to provide copies to him. Lees’ Reply

Mot. Resp. Counsel’s Mot. Withdraw, ECF No. 33 10-11. The

Supreme Judicial Court did not act on Lees’ motion to withdraw,

and no action was necessary after the rescript issued.

C. Post-Direct Appeal Proceedings

1. Lees Filed Pro Se Motion for New Trial Which the

Trial Court Denied

On October 15, 2018, Lees filed a pro se motion for new

trial and motion for audio transcripts in the Superior Court.

On December 21, 2018, the trial court noted that Lees had not

heard the audiotapes, and ordered that once Lees had an

opportunity to review the audiotapes, he could file a

supplemental motion. On May 11, 2020, Lees filed a supplemental

motion, Def.’s Suppl. Mot New Trial ECF No. 33, which was

opposed.

The Supplemental Motion for New Trial advanced arguments

similar to those advanced here. Lees apparently abandoned his

argument based upon the original transcript, and quoted the new

transcript. Suppl. Mot. 6. Indeed, he claimed that

notwithstanding the transcript, the trial court insufficiently

examined the juror on this corrected record. Id.

Lees claimed that the SJC did not “adequately safeguard”

his right to appellate counsel. Id. at 6. Lees then claimed he

was prejudiced because a supplemental brief was never ordered

with respect to the plenary review concerning the SJC’s

determination that the evidence against him was overwhelming.

Id. Lees then claimed that his direct appellate counsel argued

a “frivolous appeal” providing incompetent assistance. Id. at

9-10.

A hearing on the motion for new trial was held on May 21,

2021. Docket, ECF No. 33 184. Later that day, the Court denied

the motion. The trial court listened to the recording and

confirmed that the “SJC’s quotation was accurate.” The trial

court rejected Lees’ argument that the SJC was wrong, that it

should not have relied on a non-certified copy, and that he was

denied counsel. See Order, ECF No. 33, 102-104.

Lees sought leave to appeal the denial of his motion for a

new trial pursuant to a Single Justice of the Supreme Judicial

Court pursuant to Mass. Gen. Laws ch. 278, § 33E, a so-called

“gatekeeper motion.” Pro Se Gatekeeper Petition in a Capital

Case, ECF no. 33 13-22. That statute provides in part, “[i]f

any motion is filed in the superior court after rescript, no

appeal shall lie from the decision of that court upon such

motion unless the appeal is allowed by a single justice of the

supreme judicial court on the ground that it presents a new and

substantial question which ought to be determined by the full

court.” Id.

A Single Justice of the SJC denied the gatekeeper motion:

Memorandum of Decision & Order: "Pursuant to the

gatekeeper provision of G. L. c. 278, § 33E, the

defendant Brian Lees seeks leave to appeal an order of

the Suffolk Superior Court (Krupp, J.) denying his

supplemental motion for a new trial. For the reasons

set forth below, the defendant's application is

denied. The defendant was indicted for murder in the

first degree for the killing and dismemberment of his

father. During trial, at which the defendant

represented himself, the judge informed prospective

jurors that the trial would involve viewing "graphic

photos of body parts" and asked if that would affect

their ability to remain fair and impartial. According

to the original trial transcript, the following

exchange took place between the judge and a

prospective juror who was eventually empaneled: THE

JUDGE: "All right. In this trial you will see some

graphic photos of body parts, and the question is

whether you think that would affect your ability to be

a fair and impartial juror?" THE JUROR: "Yes." THE

JUDGE: "All right, do you have any other concerns

about being a fair and impartial juror for a first

degree murder prosecution?" THE JUROR: "No, sir." At

the time, neither the defendant nor the Commonwealth

objected to seating this juror. Later on, during jury

selection, the defendant attempted to challenge this

juror, but the trial judge ruled he could not

challenge a juror that had already been seated.

Defendant was convicted of murder in the first degree.

On direct appeal, during which the defendant was

represented by counsel, the sole issue raised was

whether seating this juror violated the defendant's

constitutional rights. Commonwealth v. Lee, 479 Mass.

558, 559 (2018). During oral argument, the Court

asked the parties if an audio recording of the jury

selection was available. Defendant's counsel inquired

with the Suffolk County Clerk's office and was

incorrectly informed that no recording existed. After

oral argument, this Court made its own enquiry into

the audio recording and was able to locate a copy. Id.

at 560. We discovered that the actual exchange between

the judge and juror was: THE JUDGE: "You will see in

this trial some graphic photos of body parts. The

question is whether you think you could see them and

remain a fair and impartial juror." THE JUROR: "Yes."

THE JUDGE: "Do you have any other concerns about being

a fair and impartial juror in a first degree murder

prosecution?" THE JUROR: "No, sir." Id. Accordingly,

the Court affirmed the conviction. Id. at 561. The

Court noted it would "ensure that the defendant will

have access to all recordings of the trial" upon

release of the opinion. Id. at 560 n.5. A few months

later, the defendant's counsel filed a motion to

withdraw, noting that she had listened to the

recordings and "perceive[d] no reasonable grounds for

further proceedings in this Court." According to the

defendant, his counsel did not provide him with copies

of the recording by the time she withdrew. After

being provided audio recordings of the trial, the

defendant, again representing himself, filed a

supplemental motion for a new trial. He argued that

this Court's re-transcription of the recording was

inaccurate, that this Court failed to follow the

proper procedure under Mass. R.A.P. 8(e) for

correcting the record on appeal, and that, by

correcting the record sua sponte after oral argument

and without consulting the parties, the Court had

denied him assistance of appellate counsel. The

motion judge listened to the audio recording and

confirmed that this Court's transcription was correct.

He also rejected the defendant's procedural and

constitutional arguments. Once a conviction has been

affirmed following plenary review, a defendant must

raise a "new and substantial" issue in order to appeal

the denial of a motion in the superior court. G. L. c.

278, § 33E. To be "substantial" an issue must be "a

meritorious issue in the sense of being worthy of

consideration by an appellate court." Commonwealth v.

Gunter, 459 Mass. 480, 487 (2011). An issue is not

"new" if "either it has already been addressed, or

where it could have been addressed had the defendant

properly raised it at trial or on direct review." Id.

None of the grounds raised by the defendant meet this

standard. The Court, the defendant's appellate

counsel, and the motion judge all listened to the

recording and agree that the juror did not answer that

he would be biased by the photographs. This Court's

sua sponte correction of the record was proper under

the version of Mass. R.A.P. 8(e) in effect at the time

of the defendant's appeal, which read: "If anything

material to either party is omitted from the record by

error accident or is misstated therein, . . . the

appellate court . . . on proper suggestion or its own

motion, may direct that the omission or misstatement

be corrected." Former Rule 8(e), Massachusetts Rules

of Court, Rules of Appellate Procedure, at 236

(Thompson Reuters 2017).[]] Finally, there is no merit

to defendant's argument that he was deprived of

assistance of appellate counsel. His lawyer received

copies of the recording and could have filed a

petition for a rehearing, but determined there was no

grounds to challenge the Court's correction of the

record. Accordingly, it is therefore ordered that the

defendant's application under the gatekeeper provision

of G. L. c. 278, § 33E, for leave to appeal the denial

of his supplemental motion for a new trial is denied."

June 15, 2022, Mem. Dec. & Order (Kafka, J.), Docket Entry #14,

Com. v. Lees, SJ-2021-0237 (footnotes omitted). On July 12,

2022, Lees’ motion for reconsideration of that decision was

denied. See Docket Entry #14, Com. v. Lee, SJ-2021-0237; ECF

No. 33 252..

III. PROCEDURAL HISTORY

On August 3, 2022, Lees filed the instant petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., ECF

No. 1. On December 6, 2022, the Respondent filed an Answer and

Exhibits. Resp’dt’s Answer Pet’r’s Pet. Writ Habeas Corpus

(“Ans.”), ECF No. 15. On December 15, 2022, Lees filed a

response to the Answer. Pet’r.’s Reply, ECF No. 20. On

February 8, 2023, Lees filed a Memorandum of Law in support of

the Petition. Pet’r.’s Opening Mem. Support Pet. Habeas Corpus

(“Pet. Mem.”), ECF No. 23. On May 16, 2023, Respondent filed a

Supplemental Answer with Exhibits (“Suppl. Ans.”), ECF No. 33.

On May 24, 2023, Respondent filed a Reply Memorandum. Pet’r.

Reply Mem. Opp. Pet. Habeas Corpus with Mem. Law (“Reply”). On

August 9, 2023, the Court Ordered the Respondent to provide a

copy of a portion of the voir dire in the underlying trial.

Elec. Order, ECF No. 39. On August 14, 2023, the Respondent

complied with that Order. Resp. Ct. Order, ECF No. 41.

Also pending before the Court is a motion to proceed in

forma pauperis, ECF No. 25, a motion to appoint counsel, ECF No.

24, and motion to compel, ECF No. 30. Those motions are each

denied.

IV. ANALYSIS

Pursuant to 2254 Rule 8(a), an evidentiary hearing is not

warranted, and this petition is decided on the record before

this Court. Lees’ petition for habeas corpus is essentially a

two-pronged attack: (1)the underlying original transcript

controls and the revision by the SJS is incorrect; and (2) the

SJC’s post-argument procedure of correcting the record without

permitting further argument violated Lees’ procedural due

process rights. Both arguments fail on the merits.

A. The Legal Standard

Pursuant to 28 U.S.C. § 2254(a), this Court may only

“entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the

Constitution of the Constitution or laws or treaties of the

United States.” 28 U.S.C. §2254(c).

“To respect our system of dual sovereignty . . . the

availability of habeas relief is narrowly circumscribed.” Shinn

v. Ramirez, 142 S. Ct. 1718, 1730 (2022). Indeed, it is not a

second appeal, and the Supreme Court has “recognized that

federal habeas review cannot serve as a substitute for ordinary

error correction through appeal . . .[Rather,] . . . [t]he writ

of habeas corpus is an extraordinary remedy that guards only

against extreme malfunctions in the state criminal justice

systems.” Id. at 1731 (citations and quotations omitted).

Congress has narrowed the path to habeas relief of state

convicted petitioners, and under the Antiterroism and Effective

Death Penalty Act of 1996 (“AEDPA”):

[w]ith respect to ‘any claim that was adjudicated

on the merits in State court proceedings,’ id. §

2254(d), AEDPA permits [the Court] to grant a habeas

petition only if the state court's decision ‘was

contrary to, or 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, 376 (2000) (opinion of Stevens,

J.) (quoting 28 U.S.C. § 2254(d)(1)), or the decision

‘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)(2).

Jackson v. Marshall, 864 F.3d 1, 9 (1st Cir. 2017).

First, however, a petitioner must satisfy the Court that he has

exhausted his remedies and not procedurally defaulted those

remedies in state court. As the Supreme Court recently

explained the interplay between exhaustion and procedural

default:

State prisoners . . . often fail to raise their

federal claims in compliance with state procedures, or

even raise those claims in state court at all. If a

state court would dismiss these claims for their

procedural failures, such claims are technically

exhausted because, in the habeas context, “state-court

remedies are ... ‘exhausted’ when they are no longer

available, regardless of the reason for their

unavailability.” Woodford v. Ngo, 548 U.S. 81, 92–93,

(2006). But to allow a state prisoner simply to

ignore state procedure on the way to federal court

would defeat the evident goal of the exhaustion rule.

. . . Thus, federal habeas courts must apply “an

important ‘corollary’ to the exhaustion requirement”:

the doctrine of procedural default. Davila [v. Davis],

582 U.S. 521, at [527] . . . Under that doctrine,

federal courts generally decline to hear any federal

claim that was not presented to the state courts

“consistent with [the State's] own procedural rules.”

Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct.

1587, 146 L.Ed.2d 518 (2000).

Together, exhaustion and procedural default

promote federal-state comity. Exhaustion affords

States “an initial opportunity to pass upon and

correct alleged violations of prisoners' federal

rights,” Duckworth v. Serrano, 454 U.S. 1, 3, 102

S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam), and

procedural default protects against “the significant

harm to the States that results from the failure of

federal courts to respect” state procedural rules,

Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Ultimately,

“it would be unseemly in our dual system of government

for a federal district court to upset a state court

conviction without [giving] an opportunity to the

state courts to correct a constitutional violation,”

Darr v. Burford, 339 U.S. 200, 204 (1950), and to do

so consistent with their own procedures, see Edwards,

529 U.S. at 452–453, 120 S.Ct. 1587.

Despite the many benefits of exhaustion and

procedural default, and the substantial costs when

those doctrines are not enforced, we have held that a

federal court is not required to automatically deny

unexhausted or procedurally defaulted claims. When a

claim is unexhausted, the prisoner might have an

opportunity to return to state court to adjudicate the

claim. See, e.g., Rose v. Lundy, 455 U.S. 509, 520

(1982). When a claim is procedurally defaulted, a

federal court can forgive the default and adjudicate

the claim if the prisoner provides an adequate excuse.

Likewise, if the state-court record for that defaulted

claim is undeveloped, the prisoner must show that

factual development in federal court is appropriate.

“Out of respect for finality, comity, and the

orderly administration of justice,” Dretke v. Haley,

541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659

(2004), federal courts may excuse procedural default

only if a prisoner “can demonstrate cause for the

default and actual prejudice as a result of the

alleged violation of federal law,” Coleman, 501 U.S.

at 750. To establish cause, the prisoner must “show

that some objective factor external to the defense

impeded counsel's efforts to comply with the State's

procedural rule.” Murray v. Carrier, 477 U.S. 478,

488 (1986). Then, to establish prejudice, the prisoner

must show not merely a substantial federal claim, such

that “ ‘the errors at ... trial created a possibility

of prejudice,” but rather that the constitutional

violation “worked to his actual and substantial

disadvantage.’” Id., at 494, 106 S.Ct. 2639 (quoting

United States v. Frady, 456 U.S. 152, 170, 102 S.Ct.

1584, 71 L.Ed.2d 816 (1982)).

With respect to cause, “[a]ttorney ignorance or

inadvertence” cannot excuse procedural default.

Coleman, 501 U.S. at 753. “[T]he attorney is the

petitioner's agent when acting, or failing to act, in

furtherance of the litigation, and the petitioner must

bear the risk of attorney error.” Ibid. (internal

quotation marks omitted). That said, “if the

procedural default is the result of ineffective

assistance of counsel, the Sixth Amendment itself

requires that responsibility for the default be

imputed to the State.” Murray, 477 U.S. at 488, 106

S.Ct. 2639. That is not because a constitutional

error “is so bad that the lawyer ceases to be an

agent” of the prisoner, but rather because a violation

of the right to counsel “must be seen as an external

factor” to the prisoner's defense. Coleman, 501 U.S.

at 754, 111 S.Ct. 2546 (internal quotation marks

omitted). “It follows, then, that in proceedings for

which the Constitution does not guarantee the

assistance of counsel at all, attorney error cannot

provide cause to excuse a default.” Davila, 582 U.S.,

at ––––, 137 S.Ct, at 2065.

Shinn, 142 S. Ct. at 1732–33.

As for review of factual determinations of the record by

the courts of the Commmonwealth, as this Court has written:

Under section 2254(d)(2), a state court's findings of

basic or historical facts “are entitled to a

presumption of correctness that can be rebutted only

by clear and convincing evidence to the contrary.”

Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002).

“Inferences, characterizations of the facts, and mixed

fact/law conclusions are more appropriately analyzed

under the ‘unreasonable application’ prong of section

2254(d)(1).” Id.

Woods v. Medeiros, 465 F. Supp. 3d 1, 8 (D. Mass. 2020), aff'd,

993 F.3d 39 (1st Cir. 2021).

B. The Pending Motions are Denied

1. Motion to Proceed In Forma Pauperis

Lees’ Motion to Proceed in Forma Pauperis, ECF No. 25, is

DENIED. Lees paid the $5.00 filing fee. See Receipt, ECF No.

3. Even if he had not done so, a review of the motion and prison

account statement reveals that Lee has sufficient funds to pay

the modest $5.00 filing fee.

2. Motion to Appoint Counsel

Lees’ Motion to Appoint Counsel, ECF No. 24, is DENIED. .

Pursuant to 18 U.S.C. 3006A(2)(B) the Court may, upon a

determination that “the interests of justice so require” may

appoint counsel “for any financially eligible person who . . .

is seeking relief under section . . . 2254 . . . of title 28.”

Id. “The decision to appoint counsel is discretionary; a habeas

petitioner has no constitutional or statutory right to appointed

counsel.” Cavitt v. Saba, CIV.A. 12-11700-WGY, 2012 WL 4094358,

at *1 (D. Mass. Sept. 14, 2012) (citing Jackson v. Coalter, 337

F.3d 74, 77 n.2 (1st Cir. 2003)). “The U.S. Court of Appeals

for the First Circuit has set forth three criteria by which a

court must discern the ‘rare’ case where appointment of counsel

for a habeas petitioner is warranted: (1) the likelihood of

success on the constitutional claim; (2) the factual complexity

and legal intricacy of the claim; and (3) the ability of the

prisoner to investigate and develop the factual record necessary

to the claim. St.-Vil v. Alves, CV 22-10574-JCB, 2022 WL

3109518, at *2 (D. Mass. July 28, 2022) (citing United States v.

Mala, 7 F.3d 1058, 1063-64 (1st Cir. 1993)). Even presuming

without finding that Lees is otherwise financially eligible,

Lees has made no attempt at demonstrating the factors balance in

his favor. In any event, the balance of the factors weighs in

favor of denial of the motion inasmuch as there is no likelihood

of success on the constitutional claim.

3. Motion to Compel

The Motion to Compel, ECF No. 30 is DENIED. The Court

agrees with the Respondent that Lees’ request for the trial

court exhibits in paragraph 7 of the motion are irrelevant to

this Court’s determination of the issues presented in this

petition. The Respondent offered to produce a status report as

to whether the requested exhibits still exist and are available.

The Respondent is requested, but not ordered to provide that

status report only to the Respondent, as the Court does not need

the trial exhibits to resolve the matters before it. As to the

remaining issues, the Court has sufficient record materials to

decide the narrow issues before it as presented in the petition.

C. Ground One Fails –- the Corrected Transcript is

Accurate and there is No Evidence of Juror Bias or

Impartiality.

In Ground One, Lees challenges the substance of the

correction to the record. “The Sixth Amendment guarantees a

defendant charged in a criminal case the right to ‘trial[ ] by

an impartial jury.’ U.S. Const. amend. VI. This ‘right is made

binding upon the states through the fourteenth amendment’ and,

thus, applies with full force to state criminal prosecutions.”

Bebo v. Medeiros, 906 F.3d 129, 135 (1st Cir. 2018). Lees

claims that the seating of Juror No. 226 violated his Sixth

Amendment right to a trial by an impartial jury. The claim

fails.

First, Lees’ claim that Juror No. 226 was biased based upon

the uncorrected record fails, because the SJC corrected the

record, as was its prerogative, and on that corrected record

there is no evidence that SJC’s correction was erroneous. While

there is no absolute constitutional right to an accurate record,

there is certainly no constitutional right to an inaccurate

transcript. See Allard v. Olivarez, C97-1988 FMS (PR), 1997 WL

305272, at *1 (N.D. Cal. June 2, 1997) (“There is no

constitutional right to a totally accurate transcript of a state

criminal trial. Tedford v. Hepting, 990 F.2d 745, 747 (3d

Cir.), cert. denied, 510 U.S. 920 (1993). A constitutional

violation may result only if the inaccuracies in the transcript

are such that they adversely affected appellate review in the

state courts. Id.”). The objective correction of a transcript

does not prejudice Lees with respect to his constitutional

rights to a fair trial. That correction is a determination of

fact that can only be rebutted by clear and convincing evidence.

The only evidence that might (but does not) rebut this

presumption is the audio clip of the hearing.9

9 This Court’s review of the audiotape is the better course

of action, where the objective record would be the only clear

and convincing evidence that Lees would be required to submit to

overturn the factual determination by the SJC. See Townes v.

Alabama, 139 S. Ct. 18, 20 (2018) (Statement of Justice

Sotomayor respecting the denial of certiorari) (“This Court

called for the record and specifically requested that the trial

court provide a copy of the audio recording. The trial court

informed this Court's Clerk's Office that the recording no

longer exists. Without the recording, we cannot know what the

judge actually said at trial . . . . The Constitution guarantees

certain procedural protections when the government seeks to

prove that a person should pay irreparably for a crime. A

reliable, credible record is essential to ensure that a

reviewing court—not to mention the defendant and the public at

large—can say with confidence whether those fundamental rights

have been respected. ”). Notably, the Supreme Court denied

certiorari to the affirmance of a death penalty on the grounds

Lees’ tortured interpretation of the corrected record is

meritless. In fact, the opposite conclusion is compelled: Juror

No. 226 expressed no evidence of bias at all after a general and

individual voir dire. Specifically, the corrected question can

only be interpreted as a binary answer: either Juror No. 226

could see the photographs “and remain a fair and impartial

juror” or not. Here, the affirmative answer confirms that Juror

No. 226 did not have a concern; neither did the Court, nor the

parties. Lees’ misunderstanding and later attempt to strike may

have been the result of the Court phrasing this question

differently across different jurors, but Lees’ later

misunderstanding is irrelevant. Indeed, Lees’ later apparent

confusion does not change the Court’s and parties’ original

understanding that Juror No. 226 expressed no responses to the

general and individual voir dire questions disposing of the

question of Juror No. 226’s bias or partiality.

Accordingly, as for Ground One, Lees has failed to

demonstrate that the SJC’s decision was contrary to, or involved

an unreasonable application of, clearly established Federal law,

or based on an unreasonable determination of the facts in light

that in the absence of audio tape, the factual determination of

the state appellate court controlled.

of the evidence presented in the criminal proceedings. See 28

U.S.C. 2254(d).10

D. Grounds Two and Three Fail - the SJC’s Procedures

During Plenary Direct Appeal did not violate Lees’s

Constitutional Procedural Due Process Rights

Lees’ remaining challenges essentially claim that the

Supreme Judicial Court denied Lees procedural due process under

the Fourteenth Amendment by (1) post-argument sua sponte

correction of the record without further argument; and (2)

purportedly not permitting Lees assistance of counsel after his

primary ground evaporated due to the correction. These claims

also fail.

Presuming without determining the claims were exhausted and

not procedurally defaulted, these claims are nonetheless

10 To the extent that Lees is left with the argument that he

was not permitted to exercise a peremptory challenge over Juror

No. 226, that argument fails as matter of federal law. The

Supreme Court holds that “the right to exercise peremptory

challenges in state court is determined by state law. This

Court has long recognized that peremptory challenges are not of

federal constitutional dimension.” Rivera v. Illinois, 556 U.S.

148, 152 (2009). “If a defendant is tried before a qualified

jury composed of individuals not challengeable for cause, the

loss of a peremptory challenge due to a state court's good-faith

error is not a matter of federal constitutional concern.

Rather, it is a matter for the State to address under its own

laws.” Id. at 157. “Because peremptory challenges are within

the States' province to grant or withhold, the mistaken denial

of a state-provided peremptory challenge does not, without more,

violate the Federal Constitution.” Id. at 158. Lees has not

provided evidence of a mistake as to the purported denial of his

tardy request for peremptory strike of Juror No. 226. There is

therefore no constitutional issue as to the denial of Lees’

purported peremptory strike request.

meritless. The SJC was being pragmatic: correcting a record by

undisputable evidence destroyed the factual basis for an appeal.

The SJC was entirely transparent as to what it did, at least

with respect to obtaining the audiotapes: notifying the parties

in March 2018 that it had obtained the audiotape. SJC Docket

#54. Two months later, Lees’ counsel filed a motion to obtain

those recordings, SJC Docket, Doc. No. 55, which was referred to

a Single Justice for disposition, SJC Docket No. 56. On May 15,

2018, while that motion was pending, the SJC issued its

decision, noting in a footnote that the recordings would be

provided to counsel.11 There is no evidence that the correction

11 To the extent that Lees argues that his counsel was

ineffective, that claim is not before the Court and, in any

event, is also meritless. Any failure to obtain the transcripts

earlier is harmless error, inasmuch as the transcripts were

obtained by counsel, and there was no further argument to make

with respect to Juror No. 226. See U.S. v. Lemmon,

216CR20008PKHMEF1, 2022 WL 2525339, at *14 (W.D. Ark. May 11,

2022), report and recommendation adopted, 2:16-CR-20008-001,

2022 WL 2496205 (W.D. Ark. July 6, 2022), motion for relief from

judgment denied, 2:16-CR-20008-001, 2023 WL 5112005 (W.D. Ark.

Aug. 9, 2023) (“At the [28 U.S.C. § 2255] evidentiary hearing,

however, [the Peititoner] conceded that he does not have a right

to the court reporter's backup audio recording of the trial, and

that [counsel] did all she could have done to find the alleged

error when she listened to the portion of the trial audio Lemmon

directed her to and compared it to the official trial

transcript, finding no discrepancy and no inappropriate

statements by the Court . . . Thus, [Petitioner’s]

representation cannot be deficient based on the failure to bring

this frivolous claim.”). Lees has not established “that there

is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694.

by the SJC was erroneous, and Lees’ counsel discerned no further

basis for appeal at that point. The rescript had already issued

by that point. Lees’ desire to unwind his meritless appeal and

seek a do-over for a new (and speculative) potential basis to

appeal is unavailing and simply not a denial of assistance

counsel. As for Lees’ claims of actual innocence, his

conclusory and unsubstantiated claim is insufficiently

supported.

Lees was not denied due process; in fact, he availed

himself of all process that was due. While the SJC might in its

discretion have provided a further opportunity for Lees’ counsel

to provide supplemental briefing and argument –- a point on

which this Court takes no position -- it was not

constitutionally required to do so, and by denying Lee’s

improper pro se petition for rehearing when represented by

counsel, presumably determined that it need not do so here where

the corrected record revealed no issue concerning the Juror No.

226’s bias or impartiality.

V. CONCLUSION

Lees had a fair criminal trial –- a trial at which he

insisted on representing himself. He was convicted of murder in

the first degree of this own father by an impartial jury based

upon overwhelming evidence. On direct appeal – plenary review

under Section 33E -- the SJC conducted its statutorily required

duty to thoroughly review the conviction, and after careful

review, and appropriate correction of the record, concluded that

Lees received a fair trial and affirmed the conviction. The

corrected version of the transcript, having not been

contradicted by any -– let alone clear and convincing --

evidence, eliminated the factual basis for the appeal.

Lees’ counsel on direct appeal agreed that the correction was

accurate. The Section 33E review being completed, and the juror

impartiality issue resolved, there was nothing left to litigate:

Lees’ conviction was -– and is -- final. Lee was not denied the

right to counsel: he had able appellate counsel. Lee’s

dissatisfaction with the results of his appeal was not a

violation of his Due Process rights.

As set forth above, after this Court’s careful review of

the parties’ filings, relief must be denied because Lees has not

met his high burden of proving that the state court decisions as

to all Grounds in the petition were “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or “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). Accordingly, the Petition (ECF No. 1) is

DENIED and the action is DISMISSED.

Pursuant to 28 U.S.C. § 2253(c)(2) and Rule 11(a) of Rule

Governing Section 2254 Cases in the United States District

courts, a certificate of appealability is hereby DENIED because

Lees has not made a substantial showing of the denial of a

constitutional right.

The Clerk shall transmit a copy of this order to the

Petitioner and enter a separate order of dismissal of this

action.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES12

12 This is how my predecessor, Peleg Sprague (D. Mass 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 45 years.