Celester v. Rodriguez

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

JERMAINE CELESTER, )

) CIVIL ACTION

Plaintiff, ) No. 21-11523-WGY

)

v. )

)

MICHAEL RODRIGUEZ, )

)

Respondent. )

___________________________________)

YOUNG, D.J. October 24, 2023

MEMORANDUM & ORDER

Through this petition for a writ of habeas corpus brought

pursuant to 28 U.S.C. § 2254, Jermaine Celester (“Celester”)

requests that this Court vacate his conviction for second degree

murder and remand the case to the Massachusetts Superior Court

for further proceedings. The respondent opposes. For the

reasons explicated below, this Court denies Celester’s petition,

ECF No. 1.

I. INTRODUCTION

A. Procedural History

Celester’s instant petition comes to this Court against the

backdrop of substantial litigation in the Massachusetts courts.

Celester was first indicted on April 19, 1994, on charges

of murder, G.L. c. 265, § 1, and armed assault with intent to

murder, G.L. c. 265, § 18(b). In 1995, Celester was convicted

by a jury on both counts. See Respondent’s Supplemental Answer

(“S.A.”) 25-26, 83-84, 362, ECF No. 16.

In 2016, Celester’s convictions were vacated after a

Superior Court judge allowed his motion for a new trial. Id. at

291. In his second trial, Celester was found guilty by a jury

of second-degree murder, but was acquitted on the charge of

armed assault with intent to murder. S.A., Ex. 16, Transcript

of Jury Trial – Day 15, dated June 12, 2017 (“Tr. 16”), ECF No.

16-16. Celester was sentenced to life in prison. S.A., Ex. 17,

Transcript Sentencing, dated June 20, 2017 (“Tr. 17”), ECF No.

16-17.

Celester appealed his conviction to the Massachusetts

Appeals Court (“Appeals Court”). That court affirmed his

conviction and his sentence. See Commonwealth v. Celester, 97

Mass. App. Ct. 1101, 140 N.E.3d 949, review denied, case

remanded, 485 Mass. 1106, 150 N.E.3d 1141 (2020).

On March 11, 2020, Celester filed an application for leave

to obtain further appellate review with the Supreme Judicial

Court (“SJC”). S.A. 544-76. The SJC denied the application

without prejudice and remanded the case back to the Appeals

Court for resolution of an issue that had been raised by

Celester in his brief to the Appeals Court but had gone

unaddressed. Id. at 733. The Appeals Court once again affirmed

Celester’s conviction. Id. at 730-32. Celester filed a re-

application for leave to obtain further appellate review from

the SJC, but this was denied on January 14, 2021. See

Commonwealth v. Celester, 486 Mass. 1111, 163 N.E.3d 380 (2021).

Celester filed his instant petition for habeas relief on

September 16, 2021. Pet., ECF No. 1.

B. Factual Background1

“In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of

a State court, a determination of a factual issue made by a

State court shall be presumed to be correct.” 28 U.S.C. §

2254(e)(1). This memorandum therefore incorporates the factual

findings of the Appeals Court.

In Commonwealth v. Celester, the Appeals Court found the

following facts:

In February 1994, Wakime Woods was shot, as was

his friend, Derek Gibbs. Wakime died of his wounds;

Gibbs was paralyzed. Just prior to the shooting,

Wakime and Gibbs walked shoulder-to-shoulder with the

defendant down the middle of a street in Brockton.

Gibbs testified that there were no other persons or

cars on the street. Gibbs was in the middle of the

group with the defendant to his right and Wakime to

his left. Suddenly, the defendant stopped short,

leaving Gibbs's peripheral view. As Gibbs turned in

the defendant's direction, he was shot in the right

side of his face and fell to the ground. He heard

more gunshots and Wakime screaming for help. Marlene

1 EDITORIAL NOTE: The following discussion includes

extensive (perhaps overly extensive) quotation from the

underlying proceedings in the courts of the Commonwealth. This

is necessary to fairly understand the independent conclusions

this Court has drawn from those proceedings.

Scott, who was sitting in the kitchen of her mother's

house near the scene of the shooting, heard the

gunshots and looked out the window. She saw a body

lying in the street and ran outside to render aid.

She did not see any people (other than the two

victims) or cars.

The Commonwealth's theory at trial was that the

defendant shot Gibbs because, approximately five

months earlier, Gibbs (along with Calvin Dyous and

Larry Brown) witnessed the shooting of the defendant's

close friend, Robert Moses, but the three had been

unable (or unwilling) to identify the perpetrator.

After Moses's shooting, the defendant repeatedly

questioned Gibbs, Dyous, and Brown. The defendant was

not satisfied with Gibbs's answers.

Two weeks before Wakime and Gibbs were shot, the

defendant (along with two others whom Gibbs could not

identify) gathered Gibbs, Brown, and Dyous together to

question them again about Moses's murder. The

defendant was upset and angry; he insisted that the

three witnesses to Moses's murder accompany him to the

police station to identify photographs of the

murderer. He threatened that if they did not do so,

he would shoot them. Brown and Gibbs went with the

defendant, but Dyous did not. Gibbs was unable to

identify anyone at the police station.

The defendant presented a third-party culprit

defense; specifically, he maintained that the

gunshots, which killed Wakime and maimed Gibbs, were

delivered by occupants of a vehicle that drove past

them. Corrina DeFrancesco, who lived near the site of

the shooting, testified that upon hearing gunshots,

she looked out the window. Contrary to Scott's and

Gibbs's testimony that there were no cars on the

street, DeFrancesco testified that she saw a small

dark-colored, possibly maroon, car with square

headlights and tinted windows on the road.

DeFrancesco ran outside to investigate and saw the car

fleeing the scene. She further testified that Wakime

told her that the shots came from the back passenger's

side.

Brockton Police Officer Mark Reardon testified

that after receiving a radio message to be on the

lookout for the described car, he spotted a Ford Tempo

fitting DeFrancesco's description a few blocks away

from the shooting. After following the car, Reardon

pulled it over. Two males exited the vehicle and

fled. A third occupant got out from the backseat, did

not flee, and was arrested. DeFrancesco eventually

identified the Ford Tempo as the car she had seen

fleeing after the shooting. The red Ford Tempo was

searched and no ballistics evidence was found.

Commonwealth v. Celester, 97 Mass. App. Ct. 1101, 140 N.E.3d

949, review denied, case remanded, 485 Mass. 1106, 150 N.E.3d

1141 (2020).

II. ANALYSIS

A. Standard of Review

“In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of

a State court, a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1).

Habeas petitions seeking relief from state court

convictions are reviewed under the highly deferential standard

codified by the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),

which provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim--

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) ("Section 2254(d)").

"A state court decision is contrary to clearly established

federal law if it contradicts the governing law set forth in the

Supreme Court's cases or confronts a set of facts that are

materially indistinguishable from a decision of the Supreme

Court but reaches a different result." Companonio v. O'Brien,

672 F.3d 101, 109 (1st Cir. 2012) (internal quotation marks and

citation omitted). “Clearly established law” refers only to the

holdings of Supreme Court decisions and the governing legal

principles set forth by the Supreme Court at the time the state

court renders its decisions and does not extend to the dicta of

Supreme Court decisions. Howes v. Fields, 565 U.S. 499, 505

(2012); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

The “unreasonable application” branch applies when the

state court identified the correct legal principal but applies

it unreasonably to the facts in the case at hand. Williams v.

Taylor, 529 U.S. 362, 407-08 (2000). A habeas court reviewing

this prong must ask if the state court’s decision was

“objectively unreasonable.” Id. at 410. A petitioner meets

this standard upon a showing that “the state court’s ruling on

the claim being presented in federal court was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,

103 (2011).

An unreasonable determination of the facts occurs when a

state court’s determination of facts is “objectively

unreasonable in light of the evidence presented in the state-

court proceeding.” Miller–El v. Cockrell, 537 U.S. 322, 340

(2003). Substantial deference is accorded to the state trial

court’s factual determination under this standard. Brumfield v.

Cain, 576 U.S. 305, 314 (2015). Factual determinations are not

deemed unreasonable “merely because [the Court] would have

reached a different conclusion in the first instance.” Id. at

313-14 (citation omitted). Even where “‘[r]easonable minds

reviewing the record might disagree’ about the finding in

question, ‘on habeas review that does not suffice to supersede

the trial court’s . . . determination.’” Wood v. Allen, 558

U.S. 290, 301 (2010) (quoting Rice v. Collins, 546 U.S. 333,

341-342 (2006)).

These standards apply only to claims that were adjudicated

on the merits in State court proceedings. Pike v. Guarino, 492

F.3d 61, 67 (1st Cir. 2007). A claim not adjudicated on the

merits is reviewed de novo. Id.

Even if a court finds a breach of Section 2254(d), relief

is appropriate only if the error found “had substantial and

injurious effect or influence in determining the jury’s

verdict.” Fry v. Pliler, 551 U.S. 112, 1126 (2007) (quoting

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). “Relevant

factors to be considered in determining whether the jury was

substantially swayed by the error include: ‘(1) the extent to

which the error permeated the proceeding, (2) the centrality of

the issue affected by the error to the case as actually tried,

and (3) the relative strength of the properly admitted evidence

of guilt.’” Pettiway v. Vose, 100 F.3d 198, 200-01 (1st Cir.

1996) (citing Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir.

1995)).

B. The Appeals Court’s Decision Rejecting Celester’s

Claim that the Exclusion of His Third-Party Culprit

Defense Violated His Right to Present a Defense Was

Reasonable.

During trial proceedings, on the Commonwealth’s motion, the

presiding judge precluded Celester from introducing the identity

of the individuals in the Ford Tempo that fled the scene and was

later stopped by the police. S.A., Ex. 5, Transcript of Jury

Trial – Day 4, dated May 25, 2017 (“Tr. 5”) 9-12, 23, ECF No.

16-5. Celester argues that due to this exclusion, the jury

never heard that “(1) all three knew Derek Gibbs, (2) one

disliked Gibbs (motive) (3) two admitted being present at the

scene (opportunity), and (4) two falsely denied being present at

the scene (consciousness of guilt).” Pet’r’s Mem. Supp. Pet.

Writ Habeas Corpus (“Pet’r’s Mem.”) 23, ECF No. 19. The jury

also never learned that this evidence corroborated Corrina

DeFrancesco’s belief that she saw a similar vehicle flee the

scene of the crime and that Woods had told her that the shots

had come from the backseat passenger side. Id. The Appeals

Court affirmed the trial judge’s decision. Celester, 97 Mass.

App. Ct. 1101. Celester argues that the Appeals Court erred in

doing so, because it did not base its decision on a reasonable

determination of facts and because the Appeals Court applied

established Supreme Court precedent in an unreasonable fashion.

1. Relevant Background Facts

The jury was made aware only of the following facts: At

the time the crime occurred, DeFrancesco saw a car flee from the

scene of the shooting and later reported this to responding

officers. S.A., Ex. 10, Transcript of Jury Trial – Day 9, dated

June 2, 2017 (“Tr. 10”) 99-108, ECF No. 16-10. A vehicle

matching the description that she had provided was spotted by an

officer and then stopped. Two of the occupants of the vehicle

fled and one was arrested. Id. at 188-204. DeFrancesco was

brought to the vehicle, a red Ford Tempo, and she identified it

as the same car she had earlier spotted. Id. at 128-131.

In contrast, these were the facts that Celester sought to

introduce in their totality:

When Brockton Police Officer Mather arrived at

the scene of the shooting, he indicated in his police

report that Corrina DeFrancesco “came over to me and

stated that she had seen the M/V leaving the area.”

Bates 134. Mather wrote “She stated to me that it was

a Dk M/V, 4 DR, tinted windows and square headlights.

The M/V was backing up from the scene of the shooting

at a high rate of speed on Green St.” Bates 134.

Officer Kenneth LeGrice wrote in his report that Ms.

DeFrancesco “told me that the vehicle used was a dark

color, possibly an ‘Aries’”. Bates 133. As she told

Detective Gomes later than evening, it was a “box

shaped car. Dark tinted windows. She was unsure of

the color because of the poor lighting.” Bates 60.

She made her initial observations when she “was seated

in the kitchen of her home when she heard (4) shots.

She jumped up and looked out her window. She then saw

a car backing up on Green Street . . . Headlights off.

Bates 60. She saw the same vehicle again when she

went ran downstairs. Interview Report with Corrina

DeFrancesco. She approached a man prone on the street

and believed he was dead. Id. She then heard someone

calling “help me” and saw another man in a snowbank.

Id. When she got over to the injured man he stated

“'it came from the passenger backseat.” Id. In his

police report, Officer LeGrice wrote that DeFrancesco

told him the car was “the vehicle used” in the

shooting. Bates 133. The vehicle information was

“broadcasted” and “given out to the Brockton

cruisers.” Bates 1281.

Brockton police officer Mark Reardon was on

routine patrol less than two miles from the scene of

the shooting when he received a radio transmission

about the shooting and a “description of a Susp

Vehicle Possibly a Mid Size, Dk color, tinted windows,

fled the scene at this time.” Bates 229; Tr. 5:37-38.

Shortly after receiving the alert, Officer Reardon

observed a red Ford Tempo occupied by three black

males approach him from the area of the shooting. Tr.

5:38, 45. Reardon first saw the “Susp/Def Veh Pulling

Out of Ash St, Westerly onto Pleasant.” Bates 229.

Reardon observed in his police report that “the timing

would be concurrent with the veh used in the

shooting.” Bates 229.

The occupants of the vehicle observed Reardon’s

cruiser and “appeared to be uneasy by my observing

them”, Tr. 5:38, and “became spooked.” Bates 229.

The suspect vehicle made several quick turns. Bates

229. Reardon followed the car as it picked up speed

and eventually stopped it using his blue lights and

siren on Eagle Avenue, roughly one mile from the

shooting. Tr. 5:39; Bates 229. Reardon “radioed the

info to Control and an officer on scene at the

shooting stated a witness observed the veh in

question.” Bates 229-230.

Reardon wrote in his report that “the veh sped

into the parking lot of #25 Eagle Ave.” Bates 230.

“The veh doors flew open and (3) blk [black] males got

out.” Bates 230. Reardon ordered them to get back in

several times, but the men failed to do so. Bates

230. Reardon wrote in his report that “the (2)

passengers fled on foot.” Bates 230. Reardon wrote

in his report that he arrested the remaining man,

identified as Donald Outlar, and charged him with

various motor vehicle driving offenses and issued him

driving citation. Bates 230; 233. At trial, Reardon

testified that the driver and a passenger fled. Tr.

5:39. Moreover, Officer Mather wrote in his police

report that Reardon radioed that four black males had

been in the car. Bates 59.

Mather drove DeFrancesco to Eagle Avenue to look

at the car that Reardon had stopped in order to

determine whether it was the car she had observed

fleeing the shooting scene. Bates 59; Tr. 3:53; 5:43,

64. DeFrancesco got out of the cruiser and walked

around the red Ford Tempo. Tr. 5:66. At first she

did not think it was the vehicle, but after observing

it further, she identified it as the vehicle that she

saw fleeing Green Street. Bates 59. According to an

Affidavit for a Search Warrant for the vehicle

authored by Trooper William Barrett, “the witness,

Corrina DeFrancesco, was brought to the scene and she

positively identified the vehicle as the one she had

seen earlier backing up from the scene of the

shooting.” Bates 1281-1282.

Trooper Barrett’s Affidavit states that Donald

Outlar, the known Tempo occupant arrested by police,

“told the above officers [Sgt. Kelliher and Det.

Gomes] that he was in the aforementioned vehicle at

the time of the shooting and was in the Glenwood

Street area which is one block east of the shooting

scene.” Bates 1282. Despite Officer Reardon’s arrest

and citation of Outlar for motor vehicle driving

offenses, “Mr. Outlar also told Sgt. Kelliher and Det.

Gomes that the driver of the vehicle was one Shelton

Terry and the other passenger was one Tommy Woods.”

Bates 1282.

Shelton Terry, who later arrived at the police

station to claim the vehicle with its owner, Ruby

Phillips, denied being in the car that night to

police. Bates 1282. Trooper Barrett wrote in his

Affidavit that “Officer Reardon told Lt. Morrill that

Shelton Terry was the driver of the vehicle he had

stopped earlier that evening when he arrested Donald

Outlar.” Bates 1282.

Ruby Phillips, the registered owner of the Tempo,

claimed to police that evening that she lent the car

to a man she met at a bar in Boston named Ty

Washington. Bates 1282. In a recent interview,

however, Phillips told the defense investigator that

she lent her car to Shelton Terry, her boyfriend at

the time. Investigation Report of Ruby Phillips.

Contrary to the information in Trooper Barrett’s

Affidavit, Ms. Phillips now states that she informed

the Brockton police that she lent her car to Shelton

Terry. Id. Phillips also reported that the Brockton

police knew that she frequently lent her car to Terry.

Id. She claimed that she does not know anyone named

Ty Washington and would not have lent her car to a

strange man she met in a bar. Id. Further, Phillips

stated she went to the police station that night to

retrieve her car with another friend of hers, not

Shelton Terry. Id.

While the police were searching for the occupants

of the Tempo “who fled on foot from a susp veh” police

were “alerted by neighbors on Fitzpatrick Street that

[JD Woods] was observed running thru back yards.”

Bates 235. Woods was the brother of the shooting

victim Wakime Woods. According to Officer Reardon's

police report, “the def’s clothing description was

similar to that of the susp’s and he emerged from the

area of which they had fled.” Bates 235. Recently,

Trooper Kevin MacDermott interviewed Woods who denied

any participation in shooting and stated that he was

not in the Ford Tempo. Bates 1503. JD now claims

that his girlfriend called him that night to tell him

that his cousin Tommy (also cousin of the deceased,

Wakime Woods) was being chased by the police and that

he went outside when he heard sirens to see if the

police were chasing Tommy. Bates 1503. JD also

stated that when the police took him to the police

station on the night of February 18, 1994 the police

accused him of shooting his brother. Bates 1503. JD

states he denied involvement, and punched an officer

in the face. Bates 1503. The Commonwealth reports to

the defense that Officers LeGrice, Gomes, and Reardon

all deny accusing JD of the shooting; the officers

similarly deny that JD punched any officer in the

face. The Commonwealth reports that Officer Reardon

in particular recalls being present with JD Woods in

the booking area, and that no accusation or assault

occurred.

JD also told Trooper MacDermott that he observed

his cousin Tommy Woods in the Ford Tempo that night.

Bates 1503. JD stated “that he later spoke to Thomas

Woods about why police thought they were involved in

the shooting of his brother. Mr. Woods stated that

Thomas had a beef with dudes who lived on Newbury

Street, Brockton, MA over a female. Mr. Woods stated

that Thomas wanted to see if it was one of his friends

that had been shot or if one of his friends had done

the shooting Mr. Woods stated that Thomas left the

area and as that was happening, the police began to

chase him.” Bates 1503.

The defense has interviewed Thomas Woods, who is

serving a life sentence at MCI-Norfolk for a joint

venture shooting murder out of Brockton. See

Commonwealth v. Thomas A. Woods, SJC-10793 (2014); see

also Investigation Report with Thomas Woods. Thomas

claimed that he was alone in the red Ford Tempo with

Donald Outlar; he denied that Shelton Terry was in the

car with them, claiming that he only saw Shelton as he

was running away from police. Investigation Report

with Thomas Woods. Thomas indicated he was nowhere

near the scene of the shooting that night and did not

claim (as JD Woods stated he did) that he went to the

scene to see if his friends were the shooters or the

victims. Id.

S.A. 92-97.

2. Relevant Pre-Trial and Trial Proceedings

In pre-trial proceedings, the trial judge informed Celester

and the Commonwealth that he would allow Celester to submit

third-party culprit evidence related to the vehicle that was

spotted fleeing the scene of the crime but would not allow the

defense to submit evidence that would require the jury to engage

in speculation as to the events inside the vehicle and possible

motives that the occupants of the vehicle may have for shooting

at Gibbs and Woods. Id. at 251.

On the day when opening statements were scheduled to begin,

Celester filed a motion in limine to present his entire third-

party culprit defense in his opening. Id. The judge denied

Celester’s motion, and in doing so, stated:

I look at the evidence of third-party -- the

third-party culprit evidence in this case as it has

been explained to me is we have a shooting. There’s

evidence that a vehicle is seen leaving the scene of

the shooting, backing up with its lights off; unclear

whether that vehicle has any involvement in the

shooting. It seems to me just as logical, just as

rational an inference, that the people in that vehicle

are trying to get away from what they perceive to be a

shooting for their own safety than they’re fleeing the

scene, but I understand that that evidence might be of

some use to a jury. I’m permitting that evidence in.

Then there’s a question of what vehicle was that.

It’s described -- I understand [the petitioner] wishes

to offer evidence that it was the red Ford Tempo. I

understand that there’s a witness who will testify

that it was the red Ford Tempo; that’s Ms. DeFrancesca

-- DeFrancesc -- I’ll her get name.

Ms. DeFrancesco. However, there’s some reason to

doubt that because her initial description of the

vehicle doesn’t necessarily match a red Ford Tempo.

She described it as a four-door tinted windows, square

headlamps, sedan. I understand the red Ford Tempo was

a two-door. We’ll have to go back and take a look.

My recollection is Tempos were pretty curvy at that

point in time. But okay, we’ve got evidence to the

effect that it may have been a red Ford Tempo. That’s

another slightly attenuated aspect of the third-party

culprit evidence.

Then we take it another step further, which is

there’s going to be evidence to the effect that the

red Ford Tempo that Ms. DeFrancesco says that she saw

was the red Ford Tempo that was stopped. That’s

unclear. Ford sold a lot of red Ford Tempos in that

timeframe, but that’s another fact where you have to

make some inferences that it’s the same vehicle.

Then, as I understand it, the occupants of that

vehicle fled. It seems to me that that fact may have

some probative value in this case.

Then what I understand is -- what you wish to

offer is evidence regarding who was in the vehicle.

That is not established. That again, is a further

attenuated step, would require further fact-finding by

the jury as to who was actually in the vehicle. It

seems to me at that point in time –

And it’s my job to draw lines here. I’ve

analyzed this and I think that at the point in time

where you begin to try to identify who you say was in

the vehicle, which is something that was not

established at the time, becomes -- first, that just

calls for remote –– It’s too remote, too speculative

on the part of a jury.

Second, I don’t think that it has at that point

in time substantial probative value. And I have to

draw the line somewhere. It seems to me it’s logical

to draw it there.

Tr. 5 at 9-12.

At the conclusion of the first day of trial, the defense

made a record of what opening would have been presented had it

been without limitation. Id. at 224-29. The trial judge then

reiterated his previous ruling regarding limiting third-party

culprit evidence and restated that the excluded evidence lacked

substantial probative value, would mislead or confuse the jury,

and require the jury to engage in active speculation as to

whether the occupants of the Ford Tempo were actively involved

in the shooting. Id. at 229.

3. The Appeals Court’s Decision

Following Celester’s appeal of the trial judge’s ruling

pertaining to his third-party culprit defense, the Appeals Court

issued a ruling in affirmation of the trial judge’s decision.

The Appeals Court explained:

“[T]he exclusion of third-party culprit evidence

is of constitutional dimension and therefore examined

independently.” Commonwealth v. Silva-Santiago, 453

Mass. 782, 804 n.26 (2009). However, “[i]n conducting

an independent examination whether the evidence of the

alleged third-party culprit’s prior conduct was too

remote in time and too dissimilar, we [do] not . . .

displace the judge’s customary discretion with regard

to the admission of evidence.” Commonwealth v.

Rosario, 444 Mass. 550, 556-557 (2005). Thus, the

Supreme Judicial Court has held that where (as is the

case here) the judge does not preclude introduction of

evidence that someone else committed the crime or

otherwise make any ruling that excluded an entire

category of third-party culprit evidence, we review

the judge’s assessment that the probative value of

proffered evidence is outweighed by some

countervailing prejudicial effect for an abuse of

discretion. Id. at 557.

Especially in view of the third-party culprit

evidence that was admitted, see supra, the judge did

not abuse his discretion in excluding the additional

proffered evidence. See Rosario, 444 Mass. at 557.

As is evident from the summary of the proffered

evidence set forth in notes 4 to 6, supra, the judge

acted well within his discretion in finding that the

additional evidence was too speculative and confusing

and thus of limited probative value. See Silva-

Santiago, 453 Mass. at 801, quoting Commonwealth v.

Rice, 441 Mass. 291, 305 (2004) (third-party culprit

evidence admissible where not too remote or

speculative and will “not tend to prejudice or confuse

the jury, and there are other ‘substantial connecting

links’ to the crime”). It was not an abuse of

discretion for the judge to conclude, for example,

that the identities of the three (or possibly four)

occupants were, on balance, more confusing and

prejudicial than any marginal value those identities

might add to DeFrancesco’s and Reardon’s testimony

regarding the Ford Tempo and Wakime’s dying

declaration, that their relationships (a brother and a

cousin to Wakime) or earlier sightings of Gibbs in a

barbershop provided little additional value to the

already admitted third-party culprit defense, or that

the alleged consciousness of guilt evidence added

marginal benefit in light of the evidence that the

occupants fled the scene, which was admitted already.

Commonwealth v. Celester, 97 Mass. App. Ct. 1101, 140

N.E.3d 949, review denied, case remanded, 485 Mass. 1106,

150 N.E.3d 1141 (2020).

4. The Appeals Court’s Affirmation of the Trial

Judge’s Ruling Was Based on a Reasonable

Determination of Facts and Reasonable Application

of Supreme Court Precedent.

Celester argues that the trial judge’s ruling was based on

erroneous factual findings and was also based on an unreasonable

application of relevant law. Celester thus raises issues of

both law and fact.

a. Factual Reasonableness

“[A] determination of a factual issue made by a State court

shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).

“[T]he term ‘facts’ refers to ‘basic, primary, or historical

facts,’ such as witness credibility and recitals of external

events.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007)

(quoting Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001)). The

presumption of correctness also extends to factual findings that

are implicit in the state court’s rulings. See Teti v. Bender,

507 F.3d 50, 58-59 (1st Cir. 2007) (“[I]mplicit credibility

determinations . . . are exactly the type of factual

determinations to which we defer, at least short of any

indication of serious error.”). Celester is thus subject to the

burden of rebutting the presumption of correctness by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). If Celester fails

to do so, then this Court must defer to the state court’s

findings of fact. See Torres v. Dennehy, 615 F.3d 1, 5 (1st

Cir. 2010).

The first of Celester’s reasons supporting his contention

that the trial judge made erroneous factual findings that

dictated his ruling to exclude third-party culprit evidence is

that the trial judge had evidence that delineated the identities

of the occupants of the Ford Tempo. S.A., Ex. 2, Transcript of

Jury Trial – Day 1, dated May 22, 2017 (“Tr. 2”) 54-59, ECF No.

16-2. Despite this, the trial judge found that the identities

of the occupants of the Ford Tempo were not known and that the

jury would have to speculate who they might be. S.A., Ex. 15,

Transcript of Jury Trial – Day 14, dated June 9, 2017 (“Tr. 15”)

8-23, ECF No. 16-15.

While the evidence did establish the identities of one of

the occupants of the Ford Tempo (one of them was arrested by a

trooper and identified by a trooper), the evidence as to the

other occupants was somewhat conflicting and still required

speculation.2 For instance, one of the individuals suspected to

have been an occupant of the vehicle, Shelton Terry, denied

having been in the vehicle –- and his statement was corroborated

2 The Appeals Court noted conflicting evidence as follows:

According to the [petitioner], the identities of the

occupants of the vehicle were (i) Donald Outlar, who was

arrested by Reardon, (ii) Tommy, whom Outlar and Reardon

identified as the passenger who fled and whom J.D.

identified as being in the Ford Tempo on the evening of the

shooting, (iii) Shelton Terry, whom Outlar identified as

the driver, and (iv) possibly J.D., who was arrested after

reportedly running through backyards near the area of the

fleeing suspects. . . .

Their relationship with the victims were that (i)

Outlar and Terry had seen Gibbs at a barbershop earlier in

the day, and Outlar stated that the Ford Tempo, which

DeFrancesco placed at the scene of the crime and which was

detained by Reardon a few blocks from the shooting, had

been one block away from the scene earlier, (ii) Tommy was

Wakime’s cousin and reported in 2017 (just prior to the

second trial) that he disliked Gibbs, and (iii) J.D. was

Wakime’s brother and stated that Tommy told him that he had

gone to the scene of the crime after the shooting to check

whether his friend was one of the victims. . . .

These discrepancies include (i) shortly before the

second trial, Tommy identified Outlar as the driver and

denied Terry was in the vehicle, (ii) Outlar identified

Terry as the driver, (iii) Terry denied being in the car

when he and Ruby Phillips, the registered owner of the

vehicle, came to the police station to claim the car, and

(iv) Phillips said she had lent the car to Ty Washington,

but later denied the same and instead said she had lent the

car to Terry.

S.A. 729.

by Tommy Woods. Furthermore, on the night of the shooting,

there were also questions about the location of the Ford Tempo

and whom the vehicle’s registered owner had lent it to. Tr. 2

at 56-57. The trial judge had this evidence before him and

concluded that at the time of the shooting the identities of the

occupants of the Ford Tempo were not established. His

conclusion was reasonable, and Celester has not proven

otherwise.

Celester then asserts that the trial judge erred in

excluding Celester’s third-party culprit defense when he placed

reliance on the fact that the defense could not establish which

of the occupants of the vehicle may have shot the victims. Tr.

5 at 11-19. The trial judge reasoned this would require the

jury to engage in speculation as to possible motives on the part

of the occupants of the vehicle. Id. Celester’s argument fails

because the trial judge’s reasoning here cannot be divorced from

his concern that the identities of the Ford Tempo’s occupants

could not be established. Any line of inquiry about who shot at

the victims from the vehicle was linked to the identities of the

occupants of the vehicle and would have required the jury to

engage in an exercise in speculation as to who was in the

vehicle, who might have shot the victims, and why they might

have done so. Quite simply, Celester has not shown that the

trial judge’s findings in this regard were clearly erroneous,

and therefore Celester’s claim in this regard is rejected.

b. Reasonable Application of Supreme Court

Precedent

Celester also asserts that the Appeals Court’s rejection of

his claim here constituted an unreasonable application of

clearly established Supreme Court precedent governing a

defendant’s constitutional right to present a complete defense.

“A defendant has a constitutional right to present evidence

that another may have committed the crime.” Holmes v. South

Carolina, 547 U.S. 319, 324 (2006); see also Crane v. Kentucky,

476 U.S. 683, 690 (1986). “Few rights are more fundamental than

that of an accused to present witnesses in his own defense.”

Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The right to

present evidence in one’s defense, however, is not unlimited.

It “may bow to accommodate other legitimate interests in the

criminal trial process.” United States v. Scheffer, 523 U.S.

303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 55

(1987)).

State law, when used to justify a limitation of a

defendant’s presentation of his defense, is only deemed a

violation of a defendant's rights if it “infringe[s] upon a

weighty interest of the accused” and is “‘arbitrary’ or

‘disproportionate to the purposes [the rule is] designed to

serve.’” Holmes, 547 U.S. at 324-25 (quoting Scheffer, 523 U.S.

at 308). See Fortini v. Murphy, 257 F.3d 39, 46 (1st Cir.

2001).

Under Supreme Court precedent, the mere fact that Celester

was not allowed to present the entirety of his intended defense

does not in itself constitute an infringement of his right to

present a defense. The trial judge’s exclusion of the specific

parts of Celester’s third-party culprit defense in question here

do not violate Celester’s right to put forth a defense. The

trial judge’s rationale for excluding specific portions of

Celester’s defense was rooted in concerns about remoteness,

speculation, and marginal probative value. These are legitimate

reasons to limit a defense. See DiBenedetto v. Hall, 272 F.3d

1, 7-9 (1st Cir. 2001) (trial court did not abuse discretion in

excluding third-party culprit evidence where that evidence was

speculative and had potential to distract jury).

The trial judge’s ruling also does not seem to have

infringed a weighty interest of Celester. Had the trial judge

entirely excluded evidence related to Celester’s third-party

culprit defense, the issue here might be more dire. The trial

judge, however, only restricted the scope of the defense.

Celester was still able to adduce that DeFrancesco saw a vehicle

flee the scene of the shooting, that Woods told DeFrancesco that

the shots came from the rear of that vehicle, and that two of

the occupants of the vehicle fled on foot when stopped by

police. Celester was therefore allowed to present the essential

theory of his intended defense. Having done so, Celester cannot

argue that the trial judge’s limitation on his defense resulted

in a substantial and injurious effect on the ultimate verdict.

In such circumstances, this Court rejects Celester’s claim

outright.

C. The Appeals Court’s Determination that the Prosecutor

Had Not Violated Celester’s Constitutional Rights in

His Closing Was Reasonable.

Celester takes issue with the Commonwealth’s closing

statement, in which the prosecutor made factual statements that,

Celester argues, the prosecutor knew, through the course of pre-

trial and trial proceedings, were rebutted by third-party

culprit evidence that the trial judge had excluded. Pet’r’s

Mem. 48. Celester submits that these statements were a

violation of his Fourteenth Amendment due process rights. Id.

Celester further submits that the Appeals Court mischaracterized

his argument on appeal. Id. at 53.

This Court, therefore, assesses whether the Appeals Court’s

rejection of Celester’s claim constitutes an unreasonable

application of clearly established Supreme Court precedent.

During trial proceedings, the trial judge prohibited the

parties from making mention of the identities of the occupants

of the Ford Tempo, their relationship to the victims, and their

possible motives for shooting at the victims. Tr. 5 at 11-19.

In his closing argument, the prosecutor stated: “there were

no cars on Green Street, there were no headlights coming or

going on Green Street . . . . There were no sounds of cars.”

S.A., Ex. 11, Transcript of Jury Trial – Day 10, dated June 5,

2017 (“Tr. 11”) 56-57, ECF No. 16-11. Later in his closing

remarks, the prosecutor, when discussing Corinna DeFrancesco’s

testimony, stated:

I’m going to suggest to you that when you go on that

effort to find corroboration with other witnesses,

with other evidence, Corrina is all by herself with

her new account of what she claims to have seen and

how she saw the car driving, where she saw the car

driving, this what I suggest to you the evidence shows

is a fabrication of Wakime Woods trying to say someone

in the backseat from the car did the shot. No

corroboration. Zero. And all evidence to the

contrary. She has no corroboration and she’s

essentially on an island by herself. As the finders

of fact in this case looking for the truth, I’m going

to suggest to you that island is a place you don’t

want to be and you don’t want anything to do with.

I’m going to suggest to you that her testimony aside

from the two victims’ identities and that they were

shot out on Green Street should be disregarded in its

entirety.

Id. at 75-76.

The defense objected to the prosecutor’s closing and the

trial judge proceeded to issue a curative instruction. Id. at

77-86. The judge provided the jury with the following:

The last stage of the case that you just heard

were closing arguments of the attorneys of both sides.

It’s entirely appropriate for the attorneys to get up

in front of you and to suggest to you what conclusions

they believe you should draw from all the evidence.

Do not, however, forget at the end of the day again

what the attorneys suggest is the evidence that’s not

necessarily the evidence. It’s up to you, it’s going

to be you, the jury, to determine what the evidence

is, what the facts are in this case. That’s entirely

up to you.

In doing that you need to listen and consider the

evidence submitted by both sides in this matter. But

again, it’s ultimately up to you to determine what the

facts are. If there’s any conflict between what

counsel may have suggested are the facts in this case

and what you recall, remember it’s going to be your

recollection that governs.

In addition, one of the things that you’re going

to have to decide in this case is credibility of the

witnesses. We had lots of witnesses at this trial.

The question of the credibility of the witnesses,

that’s also up to you to determine. Again, counsel

can make their suggestions, offer their -- perhaps

their opinions as to credibility of witnesses. At the

end of the day, that’s your call as to which witnesses

you believe and to what extent you believe the

witnesses.

In addition, you’re going to need to decide this

case without sympathy, dispassionately. Your

determinations that you’re being called upon to make

in this case have to be made based on logic,

reasoning, common sense, good judgment based upon the

evidence that you heard and the law that I will give

to you shortly when I give you my final instructions.

Again, as I mentioned before, what the Commonwealth

offers or the [petitioner] offers by way of their

closing arguments as to their opinions as to how you

should rule, how you should view the evidence, again

those are their opinions. It’s going to be what you

folks think that governs when you’re in jury room

making your determinations and deliberating as a

group.

Id. at 85-86.

Celester maintains that the prosecutor’s argument during

his closing that the jury ought reject DeFrancesco’s testimony

“in its entirety” because there was “no corroboration” amounted

to prosecutorial misconduct, and that the Appeals Court’s

rejection of his claim constituted an unreasonable application

of clearly established Supreme Court precedent. Pet’r’s Mem.

49, 55.

1. The Appeals Court’s Reasoning

The Appeals Court’s reasoning in rejecting Celester’s

submission in this regard was as follows:

A prosecutor’s closing argument is improper if it

“exploit[s] the absence of evidence that had been

excluded at [the prosecutor’s] request” (citation

omitted). Commonwealth v. Harris, 443 Mass. 714, 732

(2005). The [petitioner] first asserts that the

prosecutor’s statement that “there were no cars on

Green Street” was improper. The testimony of Derek

Gibbs, the surviving victim, and Marlene Scott, both

of whom testified that there were no cars on Green

Street at the time of the shooting, supported this

statement. See Commonwealth v. Lamrini, 392 Mass.

427, 432-433 (1984) (no prosecutorial misconduct if

closing remarks grounded in evidence). Furthermore,

the excluded evidence did not place cars on Green

Street at the time of the shooting. Contrast

Commonwealth v. Carroll, 439 Mass. 547, 554-556 (2003)

(improper exploitation by prosecutor where closing

remarks on coventurer’s motive “would not have been

plausible” had excluded evidence been admitted). At

best, the excluded evidence included J.D. Woods’s

hearsay statement that Tommy Woods (who was alleged to

have been a passenger in a red Ford Tempo identified

by Corrina DeFrancesco and pulled over by Brockton

Police Officer Mark Reardon) told J.D. that he had

gone to the crime scene after the shooting to

determine whether one of his friends had been

involved. Similarly, Donald Outlar (who was a

passenger in the Tempo when Reardon pulled it over)

told police when he was arrested that he had been in

the Tempo and one block away from the scene at the

time of the shooting. Although the [petitioner]

asserts this evidence contradicted the prosecutor’s

statement, he does not explain how. And, as set forth

above, it is not apparent that it did. Compare

Harris, 443 Mass. at 730-732 (excluded evidence

included convictions of victim as a “common

nightwalker” and prosecutor stated in closing argument

that there was no evidence that the victim was a

prostitute).

Next, the [petitioner] quarrels with the

prosecutor’s statement that DeFrancesco’s testimony

should be rejected because there was “[n]o

corroboration. Zero. And all evidence [sic] to the

contrary. [S]he’s . . . on an island by herself.”

The [petitioner] omits, however, that it is clear that

the prosecutor was referencing DeFrancesco’s

uncorroborated testimony regarding the alleged dying

declaration of Wakime Woods, the other victim, that

the shooter was a passenger in the backseat of the car

that DeFrancesco testified drove past the scene of the

shooting. None of the excluded evidence supported

DeFrancesco’s testimony regarding the dying

declaration.

Also, the [petitioner] argues that the

prosecutor’s statement that DeFrancesco’s

“testimony[,] aside from the two victims’ identities

and that they were shot out on Green Street[,] should

be disregarded in its entirety.” Again, none of the

excluded testimony contradicts the prosecutor’s

argument, which was properly based on evidence

impeaching DeFrancesco, including (as the prosecutor

expressly spelled out just prior to the objected-to

statement) her lengthy criminal record and the

reasonable inference that her testimony regarding

Wakime’s dying declaration, unsupported by her

contemporaneous statements to Brockton Police Officer

Manny Gomes, was a recent fabrication.

Finally, the [petitioner] objects to the

prosecutor’s statement that “if Corrina saw a car on

Green Street[,] . . . [the red Ford Tempo] was not

it.” The [petitioner] omits the prosecutor’s

preceding statement that “the evidence has established

that that red Ford Tempo had nothing to do with the

case” -- a statement grounded in the evidence that

there was a lack of any ballistic evidence in the car

when it was impounded by Reardon. The [petitioner]

also ignores that the prosecutor’s objected-to

statement referred to the impeachment evidence.

Specifically, the prosecutor stated, “[I]f Corrina saw

a car on Green Street[,] saying what she did that

night -- doing the things that she said to the police

on . . . [the night of the shooting], if there was a

car there, that car was not it.” This was supported

by evidence, including DeFrancesco’s contemporaneous

description of the car she had seen, her initial

statement to officers that the red Ford Tempo Reardon

pulled over was not the vehicle she had seen at the

scene of the shooting, and the fact that her testimony

at the trial (many years after the shooting) differed

substantially from her statement to officers the

evening of the shooting. None of this was improper

exploitation of the excluded evidence. Indeed, the

prosecutor went on to state: “And even if it was [the

red Ford Tempo], a car backing up from where bodies

are in the street, just after shots have rung when

nothing else of that car is seen by [the] witness, Ms.

DeFrancesco, that is a distraction.” The excluded

statements from Outlar and J.D. (that the car was a

block away and that Tommy had gone to see whether one

of his friends was involved in the shooting) were not

inconsistent with the prosecutor’s statement. Our

decision affirming the [petitioner’s] conviction of

murder in the second degree remains unchanged.

Commonwealth v. Celester, 98 Mass. App. Ct. 1119, 158

N.E.3d 885 (2020), review denied, case remanded, 486 Mass.

1111, 163 N.E.3d 380 (2021). The Appeals Court also

considered the trial judge’s curative instruction to the

jury, “cautioning the jury that closing argument was not

evidence.” Id.

2. The Appeals Court’s Decision Was Not Based on an

Unreasonable Application of Supreme Court

Precedent.

In habeas claims that allege prosecutorial misconduct, the

central question is whether the misconduct renders the trial

fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637,

645 (1974). Improper argument by a prosecutor reaches this

threshold of fundamental unfairness if it is “so egregious as to

create a reasonable probability that the outcome was changed.”

Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994). A “reasonable

probability” is a probability sufficient to undermine confidence

in the outcome. Strickland v. Washington, 466 U.S. 668, 694

(1984). Improper remarks made by a prosecutor in closing

argument, even where the remarks were “undesirable or . . .

universally condemned” are not sufficient, standing alone, to

render a trial fundamentally unfair. Darden v. Wainwright, 477

U.S. 168, 181 (1986). This standard is only met if the

prosecutor’s comments “so infected the trial with unfairness as

to make the resulting conviction a denial of due process.” Id.

at 181 (quoting Donnelly, 416 U.S. at 643).

Given the generality of the standard articulated in Darden

and Donnelly, state courts are afforded “more leeway in reaching

outcomes in case-by-case determinations.” Parker v. Matthews,

567 U.S. 37, 48 (2012). Factors relevant to the Darden analysis

may be “(1) whether the prosecutor’s conduct was isolated and/or

deliberate; (2) whether the trial court gave a strong and

explicit cautionary instruction; and (3) whether it is likely

that any prejudice surviving the judge’s instruction could have

affected the outcome of the case.” United States v. Lowe, 145

F.3d 45, 50 (1st Cir. 1998).

Against the backdrop of the foregoing cases, the Appeals

Court’s decision does not constitute an unreasonable application

of clearly established Supreme Court precedent. The Appeals

Court considered the challenged portions of the prosecutor’s

closing argument in the context of the entire closing, the trial

judge’s curative instruction, and the evidence presented at

trial. The Appeals Court’s decision, thus, aligns with the

factors that are considered under the Darden analysis. See

Lowe, 145 F.3d at 50. Therefore, Celester has simply not met

his burden of proving that the Appeals Court unreasonably

applied Supreme Court case law. Celester’s claim is thus

rejected.

D. The Appeals Court’s Decision Affirming the Trial

Judge’s Ruling Declining to Grant Calvin Dyous

Judicial Immunity Was Reasonable.

Celester argues that the trial judge violated his rights to

confrontation and due process by making a witness, Calvin Dyous,

unavailable to the defense. Pet’r’s Mem. 55.

In Celester’s first jury trial, Calvin Dyous testified in

favor of the Commonwealth. Tr. 10 at 37-47. Dyous was called

to the second trial but did not initially appear. The Appeals

Court outlined the following facts in this regard:

The Commonwealth issued a trial subpoena to Dyous

(who had been eluding the Commonwealth’s attempts

to reach him prior to the second trial). On the

first day of the second trial, the judge told

Dyous “to appear at the appropriate time to

testify in this case. It will not be today.”

The judge stated that he expected that Dyous

would be contacted by one of the parties and that

it was important to respond and actually come

back to court. The judge told Dyous that if he

did not, he would be subject to a warrant. Dyous

acknowledged the judge’s order. Nevertheless,

Dyous did not respond when the Commonwealth

attempted to reach him. Despite one-half dozen

attempts, he was unreachable either through his

mother or at the cellular telephone number he had

provided to the Commonwealth specifically for the

purpose of complying with the judge’s order. The

prosecutor reported Dyous’s failure to respond to

calls, and the judge issued a bench warrant. The

prosecutor assembled a fugitive apprehension team

to obtain Dyous’s presence in court. The next

day, Dyous appeared. He was ordered to wear a

global positioning system bracelet until he

testified. Thereafter, Dyous asked for counsel,

was appointed an attorney, and raised a Fifth

Amendment privilege. After conducting a hearing

pursuant to [Commonwealth v.] Martin, 423 Mass.

[496,] 502 [(1996)], the judge agreed that the

defendant had a valid basis for asserting the

privilege.

Commonwealth v. Celester, 97 Mass. App. Ct. 1101, 140

N.E.3d 949, review denied, case remanded, 485 Mass. 1106,

150 N.E.3d 1141 (2020).

On the fifth day of trial, Celester filed a motion that in

part requested that Dyous be granted judicial immunity. S.A.

259-60. Celester argued that the Commonwealth had engaged in

prosecutorial misconduct to make Dyous unavailable. Id. at 260.

Celester placed reliance on Commonwealth v. Brewer, 472 Mass.

307, 312 (2015), which provides that prosecutorial misconduct

arising from the government’s deliberate attempt to distort

fact-finding processes may permit a judge to grant immunity to a

defense witness. Id. Celester was of opinion that if Dyous did

testify, he would do so in favor of the defense. Id. at 260-62.

For this reason, Celester posited, the prosecutor made

deliberate mention of the Fifth Amendment privilege to Dyous’s

attorney hoping that Dyous would make such a claim (as, in fact,

he did). Id. at 262.

On the seventh day of trial, the trial judge declined to

grant Dyous judicial immunity, “stating that where he did not

find that there was prosecutorial misconduct aimed at distorting

the fact-finding process, he did not have the power to grant

judicial immunity and, even if he did, he would not in these

circumstances because there was a question as to whether Mr.

Dyous would testify differently from what he testified to in

1995.” Resp’t Mem. Opp’n Pet. Writ Habeas Corpus 43, ECF No.

22; S.A., Ex. 9, Transcript of Jury Trial – Day 8, dated June 2,

2017 (“Tr. 9”) 6, ECF No. 16-9. When defense counsel persisted,

the trial judge stated:

If there was some evidence, Mr. Grimaldi, that the

Commonwealth had somehow encouraged Mr. Dyous to

assert the Fifth, that might be a different animal.

Then you’d have this prosecutorial misconduct argument

that doesn’t exist in this case. It doesn’t exist. I

see zero, zilch, none, no evidence of that in these

circumstances. To the contrary, again, what I have

seen in part because I recognized Mr. Dyous to be

here, I’ve seen consistent effort on the

Commonwealth’s part to ensure that Mr. Dyous was here,

available, ready to testify at trial. He’s the one

that is asserting his right under the Fifth Amendment.

That’s not brought about by the Commonwealth.

Tr. 9 at 166.

1. The Appeals Court’s Decision

On his appeal to the Appeals Court, Celester argued that

the trial judge violated his constitutional right to compulsory

process, confrontation, and due process by making Dyous

unavailable to the defense. S.A. 60. The Appeals Court

rejected this claim. On the issue of Fifth Amendment privilege,

the Appeals Court declared:

On this record, the judge did not abuse his

discretion in finding that, in particular on cross-

examination, Dyous’s testimony could lead to self-

incrimination. See G. L. c. 233, § 5; Commonwealth v.

Delaney, 425 Mass. 587, 596 (1997), cert. denied, 522

U.S. 1058 (1998), quoting Commonwealth v. Brogan, 415

Mass. 169, 171 (1993) (where Commonwealth established

“there was a clear, outstanding order of the court,

that the defendant knew of that order, and that the

defendant clearly and intentionally disobeyed that

order in circumstances in which he was able to obey

it,” witness can be convicted of criminal contempt).

If, for example, Dyous testified as he did in the

first trial, the [petitioner] might try to impeach his

credibility by eliciting testimony regarding Dyous’s

failure to abide by the judge’s order, thereby

exposing Dyous to a potential charge of criminal

contempt. If, on the other hand, he testified (as the

Commonwealth suggested he might) more helpfully to the

[petitioner] than he had in the first trial, the

Commonwealth might try to impeach him by eliciting

testimony that he had been nonresponsive to the

Commonwealth pretrial, that he had been ordered to

appear, and that he had failed to respond (at least

initially). Such testimony, the judge properly

concluded, might lead to a link in the chain towards

criminal contempt.

The [petitioner], nonetheless, maintains that

Dyous lacked the required intent for criminal contempt

because he did not intend to thwart the administration

of justice and received insufficient warnings that his

failure to comply with the order would expose him to

criminal consequences. However, Dyous’s failure to

respond (despite numerous attempts to garner his

cooperation) in violation of the judge’s order to do

so could be a basis to infer the requisite intent

(even if Dyous changed his mind and ultimately

conformed his conduct to the judge’s order once the

bench warrant issued). See Furtado v. Furtado, 380

Mass. 137, 141 (1980), quoting Blankenburg v.

Commonwealth, 260 Mass. 369, 373 (1927) (charge of

criminal contempt “is designed wholly to punish an

attempt to prevent the course of justice”). Moreover,

the judge expressly told Dyous that his failure to

respond when called could subject him to a warrant.

Contrast Commonwealth v. Carr, 38 Mass. App. Ct. 179,

181 (1995) (contempt improper where “defendants were

neither told of the significance of being recognized

as a witness nor warned of the consequences of failure

to appear”). Because a valid Fifth Amendment

privilege exists where there is a possibility of

prosecution for criminal contempt even if conviction

is unlikely, the judge did not abuse his discretion.

See Commonwealth v. Borans, 388 Mass. 453, 459 (1983),

quoting Turner v. Fair, 476 F. Supp. 874, 880 (D.

Mass. 1979) (“neither a practical unlikelihood of

prosecution nor the prosecutor’s denial of an

intention to prosecute negates an otherwise proper

invocation of the Fifth Amendment”).

Commonwealth v. Celester, 97 Mass. App. Ct. 1101, 140

N.E.3d 949, review denied, case remanded, 485 Mass. 1106,

150 N.E.3d 1141 (2020).

On the issue of judicial immunity, the Appeals Court

declared:

The [petitioner] contends that the judge should have

granted judicial immunity to Dyous on the ground of

prosecutorial misconduct. See Commonwealth v. Brewer,

472 Mass. 307, 312 (2015), quoting Commonwealth v.

Vacher, 469 Mass. 425, 439 (2014) (leaving open

possibility that judge may grant immunity to defense

witness where government has engaged in “deliberate

intent to distort the fact-finding process”). The

judge, however, found no prosecutorial misconduct -- a

finding that is not clearly erroneous on the record

before us. See Commonwealth v. Valentin, 91 Mass.

App. Ct. 515, 522 (2017) (proper denial of immunity

where records failed to show prosecutorial misconduct

and proffered testimony “relates only to the

credibility of the government’s witnesses”).

Id.

2. Deferential Review Under Section 2254(d) Is

Apposite.

Although Celester requests de novo review, Pet’r’s Mem. 63,

such review is not appropriate here. “When a federal claim has

been presented to a state court and the state court has denied

relief, it may be presumed that the state court adjudicated the

claim on the merits in the absence of any indication or state-

law procedural principles to the contrary.” Harrington, 562

U.S. at 101-02. The presumption may be cast aside only when

“the evidence leads very clearly to the conclusion that a

federal claim was inadvertently overlooked in state court . . .

.” Johnson v. Williams, 568 U.S. 289, 303 (2013); cf. Neal v.

Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (“In the context of

federal habeas proceedings, adjudication ‘on the merits’ is a

term of art that refers to whether a court’s disposition of the

case was substantive as opposed to procedural.”).

The Appeals Court addressed Celester’s claims on

substantive grounds –- this is evident on a plain reading of the

Appeals Court’s reasoning. Although Celester argues that the

Appeals Court did not engage in the manner of comprehensive

analyses and fact finding that he believes was merited, the

trigger for the deferential standard under 28 U.S.C. § 2254(d)

is simply the mere adjudication of an issue. See Junta v.

Thompson, 615 F.3d 67, 71 (1st Cir. 2010) (quoting Rashad v.

Walsh, 300 F.3d 27, 45 (1st Cir. 2002)) (adjudication inquiry

“is not whether the state court opinion engaged in the

comprehensive analysis typically required of ‘a law school

examination,’ but whether the substance of [the petitioner’s]

federal claims was addressed”); Clements v. Clarke, 592 F.3d 45,

55 (1st Cir. 2010) (“[Section 2254(d)’s] trigger for deferential

review is adjudication, not explanation.”).

3. The Appeals Court’s Decision Was Based on a

Reasonable Determination of Facts and Reasonable

Application of Law.

Following the prosecutor’s conversation with Dyous’s

attorney, the prosecutor, addressing the trial judge, explained:

Yesterday at the lunch break, Judge, you had

indicated that you were going to address the issue of

the Fifth Amendment Privilege with this particular

witness, Mr. Dyous, and his counsel, Attorney Wood,

Joshua Wood. At the end of the lunch break close to

two o’clock, I came into the courtroom. I saw Mr.

Wood, Attorney Wood, Mr. Dyous’ counsel, and we know

each other from having cases together in this court

and from the legal community, and I walked over and he

indicated to me that he did not see any Fifth

Amendment Privilege because everything happened back

in 1993 and 1994. I then stated to him that I agree

with that and that the only possible issue that I

could see is a possible criminal contempt for failure

to come to court and answer to the warrant or the

summons, rather, that Your Honor ordered to stay in

contact with us, resulting in the bench warrant

issued. So I let counsel know that. I wasn’t saying

that we were going to pursue that and that in my

experience our office only pursue those situations in

extreme situations but I was candid with him and I

said that’s the only issue that I could possibly see

as a basis for a Fifth. I just wanted to put that on

record that we had that conversation and counsel

indicated that he was -- He left the courtroom after

that. So I wanted that to be clear on the record.

S.A., Ex. 8, Transcript of Jury Trial – Day 7, dated May

31, 2017 (“Tr. 8”) 147-48, ECF No. 16-8.

The prosecutor’s conversation does not reveal any

conspiracy on the part of the Commonwealth. At best, drawing

all inferences in favor of Celester, it would still require a

significant conclusory leap to find that the prosecution engaged

in misconduct through its conversation with Dyous’s attorney.

This Court thus defers to the findings of fact of both the trial

judge and Appeals Court in that no evidence of prosecutorial

misconduct existed.

Although Celester does not explicitly argue that the

Appeals Court’s application of the law to this issue was

unreasonable –- logically so because, while there may, to a

minimal extent, be a mixed question of law and fact here, this

matter is still largely a factual inquiry –- it should be noted

that there does not appear to be any Supreme Court precedent

that vests a defendant with a right to judicial immunity if that

defendant asserts his Fifth Amendment privilege and becomes

unavailable to testify. Indeed, Celester does not cite anything

to this effect. For this reason, it simply cannot be held that

the Appeals Court unreasonably applied clearly established

Supreme Court law. Presuming, for the sake of argument, such

law existed, Celester still bears the burden of proving that the

trial judge’s decision here had a substantial and injurious

effect on the verdict. Even were Dyous to testify in favor of

the defense, he had testified in favor of the prosecution in the

first trial, and thus the prosecution could have used his prior

testimony both substantively and for impeachment purposes.

Mass. R. Evid. 613; see also William G. Young, John Pollets &

Christopher Poreda, Massachusetts Evidence 342 (2022-2023 ed.).

There was, therefore, no substantial or injurious effect on the

verdict.

E. The Appeals Court’s Decision Affirming that the

Prosecutor Did Not Violate Celester’s Constitutional

Right to Due Process in His Closing Was Reasonable.

Celester alleges that the prosecutor violated his

constitutional right to due process by stating in his closing

argument, contrary to the evidence and a court order, that Gibbs

had identified Celester as the shooter. Pet’r’s Mem. 64.

The relevant portion of the prosecutor’s closing with which

Celester takes issue is as follows:

Now, Derek Gibbs acknowledges, what I suggest to you

in a credible way, he did not complete that turn when

he noticed as he turned to his right, seeking to turn

around and see where Celester was but he told you that

it was this man and together with the words of Wakime

Woods, the identity of that shooter is unequivocal.

And skilled counsel can’t talk it away.

Tr. 11 at 54.

The Appeals Court, in addressing and ultimately rejecting

Celester’s argument, provided:

The [petitioner] argues that the prosecutor’s phrase

in his closing argument, “but [Gibbs] told you that it

was this man,” was improper in light of the allowance

of the [petitioner’s] motion to exclude Gibbs from

identifying the defendant as his shooter. We view the

prosecutor’s remarks in light of the “entire closing

argument, the judge’s instructions to the jury, and

the evidence produced at trial.” Commonwealth v.

Lyons, 426 Mass. 466, 471 (1998). In the closing,

which spanned twenty-seven pages of transcript, the

prosecutor reminded the jury multiple times that Gibbs

did not complete the turn to see the [petitioner]

shoot him. When viewed in context, there was no

error. See Commonwealth v. Whitman, 453 Mass. 331,

345 (2009).

Commonwealth v. Celester, 97 Mass. App. Ct. 1101, 140

N.E.3d 949, review denied, case remanded, 485 Mass. 1106,

150 N.E.3d 1141 (2020).

Celester requests that this Court review his claim de novo

and not under the Section 2254(d) standard because the

resolution of his claim was conclusory and involved a mixed

question of law and fact. Pet’r’s Mem. 64-66. This Court may

only do so when there is evidence that shows that Celester’s

claim was either resolved on procedural grounds or that a

federal issue was overlooked, and the claim was otherwise not

resolved on the merits. See Harrington, 562 U.S. at 101-02.

There is no evidence to sustain these assertions, and therefore,

the deferential standard under Section 2254(d) applies.

The Appeals Court’s decision rejecting Celester’s claim

here was based on a reasonable determination of facts. The

Appeals Court reviewed the prosecutor’s statement in the context

of the entirety of the closing and noted that the prosecutor

reminded the jury multiple times that Gibbs did not complete the

turn to see Celester shooting him. This is clear, both as a

factual matter as well as matter of law.

III. CONCLUSION

Celester has not met his burden of proving that the Appeals

Court’s decision pertaining to any of his current claims

involved an unreasonable application of Supreme Court precedent

or was based on an unreasonable determination of facts.

Moreover, even had any of Celester’s arguments passed muster,

any error there from had no substantial and injurious effect or

influence on the jury’s verdict. For these reasons, Celester’s

petition for a writ of habeas corpus, ECF No. 1, is DENIED.

SO ORDERED.

_/s/William G. Young

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES3

3 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.