Petition for Writ of Certiorari — Robert Williams, Jr., Petitioner v. Massachusetts

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Appendix A

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT

CRIMINAL ACTION

No.S1CRMTT7

MIDDLESEX, ss.

COMMONWEALTH

vs.

ROBERT WILLIAMS, JRORDER ON DEFENDANT’S APPLICATION IN THE NATURE OF WRIT OF ERROR

CORAM NOBIS. TREATED AS MOTION FOR NEW TRIAL

On January 13,1982, a Middlesex County jury convicted the defendant, Robert Williams,

Jr. ("Williams”) of first-degree murder, armed robbery while masked, and assault and battery

with a dangerous weapon, The convictions arose out of an armed robbery of a Lowell liquor

store by Williams and a co-defendant, during which Williams stabbed the cleric, Donald Roberts

-(“Roberts’-ij^multipleJimes inthehead and upper body._ Williams was sentenced to life _ . _

imprisonment on the murder conviction and life imprisonment on the armed robbery while

masked conviction, to be served concurrently. He has been incarcerated since that time.

—The-Supreme-JudicialXourt.heardWilliams!-direct.appeal,-Consolidatediwith.his_first_

motion for a new trial, in 1986, and denied relief to Williams. See Commonwealth v. Williams,

399 Mass. 60 (1987). Since that decision, Williams:

• In 1988 filed a motion for post-conviction relief alleging ineffective assistance of counsel

related to the alleged failure to present evidence concerning the victim’s cause of death.

• In 2006 sought to amend his 1988 motion for post-conviction relief, again focused on toe

victim’s cause of death, and Williams’ contention that the negligence of the victim s

■ treating physicians, not Williams’ stabbing of the victim, caused the victim’s death. This

motion was denied on December 18,2006 by the Superior Court (Lauriat, J.).

it. «

• In 2007 sought leave to appeal Judge Lauriat’s denial of post-conviction relief; which

was denied by Justice Ireland on July 31,2007.

•

In 2009 filed a third motion for a new trial challenging the jury instructions and alleging

ineffective assistance as to his trial counsel. The court (Kottmyer, J.) denied that motion

on March 12,2009.

Williams now has filed an Application in the Nature of Writ of Error Coram Nobis.

The thrust of Williams’ motion is that he should not have been convicted of murder

because the actual cause of Roberts’ death was the negligent medical treatment provided by

Roberts’ doctors at the hospital where he was treated for multiple stab wounds. Williams

contends, as he has in previous filings, that Roberts’ stab wounds to the brain and neck were not

life threatening, but Roberts ultimately died from lack of oxygen to the brain when doctors could

not intubate him properly at the outset of a surgery, which aimed to mitigate the injury to

Roberts’ brain caused by Williams’ stabbing. Although Williams frames his grounds for relief in

terms of ineffective assistance of counsel (for failing to investigate and present evidence on the

impact of medical malpractice on causation), the prosecutor’s withholding of evidence (of

medical malpractice and causation), and “actual innocence” (alleging lack of causation between

the stabbing and the victim’s death, not that Williams did not stab Roberts multiple times), the

essence of his motion is that Roberts died due to medical malpractice not Williams’ actions.

Williams’ motion, like his prior motions,- makes no reference to Ms aimed robbery wMIe masked

conviction.

1 The court will decide Williams’ motion without a hearing because the motion and supporting materials do not

raise a sufficiently “substantial issue,” Mass. R. Crim. P. 30(c)(3); Com. v. Denis, 442 Mass. 617,628 (2004), and

because Williams’ evidentiary showing is not adequate to raise a serious issue that warrants an evidentiary hearing.

Com v Smith, 90 Mass. App. Ct. 261,264 (2016) (in determining whether a substantial issue warranting an

evidential hearing has been raised, court looks “not only at die seriousness of the issue asserted but to the adequacy

of a defendant’s showing” (quoting Com. v. Stewart, 383 Mass. 253,257-58 (1981)).

As a threshold matter, the court will treat Williams’ application as a motion for new trial

pursuant to Mass. R. Crim. P. 30, which was designed to provide the exclusive vehicle for post

conviction relief. Mass. R. Crim. P. 30, Reptrs. Notes (rale simplifies post-conviction procedure

while maintaining previous scope of relief available). The court denies Williams motion for a

new trial for the following reasons.

First, the issues Williams raises here have already been raised and rejected, in his direct

appeal (which included his first motion for new trial) and his second (2006) and third (2009)

motions for a new trial. Ke is directly estopped from litigating these issues again. Where a

defendant raises no new factual or legal issue but seeks to re-litigale a motion that was denied

previously and rejected on direct appeal, principles of direct estoppel operate as a bar to

defendant’s attempt to re-Iitigate issue. Com. v. Rodriguez, 443 Mass. 707,710-11 (2005) .

(estoppel if issue raised in new motion was actually litigated and determined previously). Here,

the Supreme Judicial Court decision in Williams, 399 Mass, at 64-65, demonstrates that

Williams’ first motion for a new trial relied on the purported “new evidence” that medical

malpractice caused the victim’s death Both the trial court and the SJC rejected Williams’

argument because © Williams did not establish that the purportedly new evidence was unknown

and unavailable at the time of trial; and (ii) Williams did not establish that the new evidence

would be “a real factor with a jury in reaching a decision.” 39 Mass, at 64; see id. at 65 (“It is at

least doubtful that the evidence... would affect the result at a new trial.”).2

Second, even if the court were to Consider the medical malpractice evidence anew, to

warrant a new trial the evidence must “cast real doubt on the justice of a defendant’s conviction”

by raising a “substantial risk” that the jury would have reached a different conclusion. Com. v.

2 The court also agrees with the original trial judge and the SJC that Williams has not shown that the evidence

concern inp the victim's medical treatment is new and was-not discoverable. See Williams, 399 Mass, at 63-64*

DiBenedetto, 475 Mass. 429 (2016). In arguing the impact of the alleged medical malpractice,

Williams ignores the law that applies to causation and intervening acts, including medical care.

See Com. v. Fernette, 398 Mass. 658,667-68 (1986). If the wounds inflicted by Williams were

“improperly treated, which treatment contributed to the death of the victim,” Williams is “not

relieved of criminal responsibility for his actions.” Id. at 668. In addition, Williams places

undue evidentiary weight on the medical malpractice’s tribunal’s determination that the victim’s

spouse’s action could proceed, as well as on the feet that the case was eventually settled for an

unknown amount Those facts do not establish, as Williams suggests, “medical malpractice.”

Third, whether Williams frames his claim as ineffective assistance of counsel, new

evidence, or withholding of evidence, he must persuade the court that “justice may not have been

done” at Ms trial. Williams cannot satisfy that standard here. Notwithstanding Ms

characterization, Ms is not a claim of “actual, factual” innocence. Williams acknowledges that

he stabbed the liquor store dark multiple times in the head and upper body. His linchpin

contention is that substandard care by treating physicians caused the victim’s death. As

discussed above, that contention ignores the applicable law. Williams has not identified a basis

for a new trial. And, those bases he does identify have been considered and rejected previously.

For the reasons set forth above, Williams’ application in the nature of a writ of coram

nobis, wMch the court treats as a motion for a new trial, is denied.

SO ORDERED.

Christopher K. Barry-Smith

Justice of the Superior Court

DATE: April 4,2018

Appendix B

®ije (&axxxmvnfomltl\ ai JHassaxijnsttts

Supreme Judicial Court

For Suffolk County

John Adams Courthouse

One Pemberton Square, Suite 1300

Boston, Massachusetts 02108-1707

WWW.SJCCOUNTYCLERK.COM

MAURA S. DOYLE

CLERK

(617) 557-1 180

April 11, 2019

assistant clerks

ERIC B. WETZEL

AMY C. STEWART

STEPHEN J. CRONIN

FACSIMILE

(617) 557-1 186

(617) 557-1 184

(617) 557-1 185

(617) 557-1 1 1 7

Robert Williams, Jr., Pro Se

W-38699

MCI Shirley - P.0. Box #1218

Shirley, MA 01464

' RE:

No. SJ-2018-0327

COMMON W EAL.TH

ROBERT WILLIAMS, JR.

Middlesex Superior Court

No.8181CR1383

NOTICE OF DOCKET ENTRY

You are hereby notified that on April 11, 2019, the following

was entered on the docket of the above referenced case:

ORDER: denying application under c. 278, s. 33E for leave to

appeal. (Cypher, J.)

'oaaak,,

Maura S. Doyle,

To:

Robert Williams, Jr.

Emily Kathleen Walsh, Assistant District Attorney

Middlesex Superior Court Dept.

COMMONWEALTH OF MASSACHUSETTS

1 SUFFOLK, ss.

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

No. SJ-2018-327

Middlesex Superior Court

No. 8181CR1383

COMMONWEALTH

ROBERT WILLIAMS, JR.

ORDER DENYING LEAVE TO APPEAL

This matter came before the Court, Cypher, J., on the defendant's application pursuant to G. L.

c. 278, § 33E, for leave to appeal from the April 4, 2018 ruling of the trial court, Barry-Smith, J. Judge

Barry-Smith treated the motion as one for a new trial, and denied it after a thorough review. This is

defendant's fourth attempt at a new trial. As found in the trial judge's well-reasoned ruling, and

supported by the Commonwealth's opposition to this application, defendant has not identified a basis

for a new trial, and the bases he has identified have been considered and rejected previously. The

application is denied.

Assistant Clerk

Dated:

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX COUNTY

Public Docket Report

CRTR2709-CR

8181CR01383 Commonwealth vs. Williams,Jr, Robert

FILE DATE:

CASE TRACK:

CASE TYPE:

Indictment

ACTION CODE:

DESCRIPTION:

CASE DISPOSITION DATE 01/13/1982

CASE DISPOSITION:

Disposed

CASE JUDGE:

05/12/1981

I - Inventory

CASE STATUS:

Closed

STATUS DATE: 05/12/1981

CASE SESSION: Criminal 1 Rm 430

LINKED CASE

PARTIES

Prosecutor

Commonwealth

Defendant

Williams,Jr, Robert

Offense Date/

Charge

553352

Attorney for the Commonwealth

Sandra Rose Weisberger

Novo Nordisk

Work Phone (781) 897-6825

Added Date: 07/11/2017

693053

Private Counsel

Stephen Paul Maidman

Massachusetts Bar

1145 Main St

Suite 417

Springfield, MA 01103-2123

Work Phone (413) 731-7300

Added Date: 10/20/2003

631882

PARTY CHARGES

" 'V

Attorney for the Commonwealth

Kevin J Curtin

Middlesex District Attorneys Office

15 Commonwealth Ave

Woburn, MA 01801

Work Phone (781) 897-6831

Added Date: 11/29/2006

Code

Disposition

Date

Disposition

Town

J: FINANCIAL DETAILS

0.00

No Financial Data for this report

Printed: 05/16/2018 3:26 pm

Case No: 8181CR01383

Page: 1

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX COUNTY

Public Docket Report

' CRTR2V09-CR

Deposit Account(s) Summary

Received

Applied

Checks Paid

Balance

Total

Printed: 05/16/2018 3:26 pm

Case No: 8181CR01383

Page: 2

' CRTR2r09-CR

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX COUNTY

Public Docket Report

INFORMATIONAL DOCKET ENTRIES

Date

05/12/1981

Ref

Description

Judge

Indictment returned

01/13/1982

See docket sheet for previous entries

01/13/1982

Case disposed as of this date

10/20/2003

08/12/2006

08/17/2006

41.1

Motion by Deft: Amended Motion for Post conviction Relief with

Affidavit of John H.M. Austin, M.D. and Affidavit of Richard I.

Clayman

08/23/2006

Procedural Order. The defendant has filed a motion for

post-conviction relief. The court ORDERS that the Commonwealth file a

response to the defendants pending motion on or before November 20,

2006.(^

08/30/2006

Letter received from CPCS: Dear Clerk Because the defendant in the

above-entitled case has no automatic right to counsel under the laws

of the Commonwealth or the rules of the supreme judicial court (GL c

211D, Sec. 5) in this proceeding, I assigned this case to a member of

the Committee for public counsel services Post-conviction Collateral

Screening Panel. The Assigned attorney was directed to review this

case and advise my designee, CPCS Director of Criminal Appeals,

private Counsel division, whether we should exercise my statutory

authority of c 211 DSec 6(b)(iii) to appoint private counsel. We have

decided not to assign counsel in this matter. The Committee has

informed the deendant of that decision. We have also explained that

we have a packet cf materials describing how a prisoner can proceed

pro se. Thank you for your attention to this matter. William J Leahy,

Chief Counsel

08/31/2006

MOTION by Deft: Pro Se Amended Motion For Post Conviction Relief With

Msrp.orsMurn Of Law jn Support yyith Ajf[davits

09/07/2006

11/20/2006

NOTICE OF DOCKET ENTRY: You are hereby notified that on August 7,

2009 the following was entered on the docket of the above referenced

case: Memorandum and Order..."For these reasons, it is ORDERED that

the petition be DENIED, and a judgment dismissing the petition be

l..:®ntered."L(Botsrajd,J)_

Motion (P#44) This motion is treated as a second motion for new

trial. The Commonwealth shall file its written response to this

motion by or before November 7, 2006. (Lauriat, J.) both sides

notified

11/28/2006

12/11/2006

Appointment of Counsel Stephen Paul Maidman

MOTION by Commonwealth: to enlarge time to file commonwealth's

_9.PP°.?Mqn.to.motioni for new trial

MOTION (P#45) allowed until 12-11-06 (Lauriat,Justice). Copies mailed

11/29/2006

Commonwealth Files Opposition To Motion For New Trial

Printed: 05/16/2018 3:26 pm

Case No: 8181CR01383

Page: 3

CRTR2709-CR

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX COUNTY

Public Docket Report

12/18/2006

Upon review of this motion the Commonwealth's opposition there to,

and for the reasons set forth in that opposition, this motion is

denied without a hearing. Defendant has failed to raise any new issue

that was not previously raised, addressed and determined in prior

.............proceedings^

06/04/2007

MOTION by Deft: Motion To Late File Pro Se Defendant's Motion For

Leave To Appeal Pursuant To M .G.L.c. 278, S 33E (Defendant has to

fileapplicatiqnwiththeSJC

08/02/2007

You are hereby notified that on July 31, 2007, the following was

entered on the docket of the above referenced case: Order denying

.?.PJPJlp3tjP.under.?.•:278, s. 33EforjeavetoappealLOreJen<LJ_L_

08/27/2007

NOTICE OF DOCKET ENTRY: You are hereby notified that on August 20,

.2007, the following was entered on the docket of the above referenced

case: Defendant's pro se motion for reconsideration of the.single

justice denial of defendant's leave to appeal pursuant to GL c

278s33E filed by Robert Williams, Jr with certificate of service

(8-24-07 Defendant's pro Se motion for reconsideration is DENIED

WJIHpUIHMRINGJByMmPrt,Ireland,J)

01/09/2009

MOTION by Deft: Third Pro Se Motion for New Trial

01/09/2009

Deft files Pro se memorandum of Law In Support of his Verified Motion

for New; Trial

01/14/2009

ORDERED: Procedural Order: The defendant has filed a motion for post

conviction relief. The court ORDERS that the commonwealth file a

response to the defendants pending motion on or before February

............25/2009 (Diane M. Kottmyer, Justice)

02/11/2009

Commonwealth files Opposition to Defendant's Second Postdirect Appeal

...........Motjpn for New Trial[.(Sent to[Kottmyer, J)

03/09/2009

03/12/2009

MOTION (P#51) The defendants motion for new trial is DENIED for the

reasons set forth in the Commonwealths opposition (Diane Kottmyer,

............ Justicej.Cqpiesmailed

12/10/2009

04/13/2017

Deft Files Reply To Commonwealth's Opposition To Defendant's Second

Motion For New Trial

Letter from Advisory Board Of Pardons, Natick, MA regarding copies of

indictment^

mailed.

General correspondence regarding ENTIRE CASE FILE mailed to

defendant @: MCI Shirley

06/16/2017

Pro Se Defendant's Application in The Nature Of Writ Of Error Coram

Nobis

06/16/2017

57.1

Robert Williams,Jr's Memorandum in support of

Applicafiqn ln the Nature Of Writ Of Coram Nobis

06/16/2017

57.2

Affidavit filed by Defendant Robert Williams, Jr in support of

Nature Of Writ Of Error Coram Nobis

06/16/2017

Pro Se Defendant's Motion for Screening By CPCS

Printed: 05/16/2018 3:26 pm

Case No: 8181CR01383

Page: 4

- CRTR7709-CR

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX COUNTY

Public Docket Report

07/10/2017

ORDER: PROCEDURAL ORDER: The Defendant has Filed a motion for

Post-Conviction Relief. The court ORDERS that the Commonwealth file a

response to the defendants pending motion on or before August 21, 2017.

Charge: Murder; Type Of Motion: Application in the Nature of Writ Of Error

Coram Nobis; Motion Filed by: Defendant; Sentencing Judge: Morse. By

The Court (Pierce, J.) Mary Aufiero, Deputy Assistant Clerk

(COPIES MAILED BOTH SIDES ADA SANDRA WEISBERGER AND

........ ....DEFT.)

07/11/2017

General correspondence regarding COPIES OF (P# 57, 57.1, 57.2, AND

............59J.MAILEDTOADASANDRAyyEISBERGER

07/12/2017

General correspondence regarding CASE FILE IS IN PROCEDURAL

............ ORDER................ .

08/14/2017

Commonwealth's Memorandum in opposition to

Defendants "Application in the Nature of Writ of Error Coram Nobis"

Sent to Pierce, J

08/28/2017

.ORDER: Order of Assignment

09/14/2017

Pro Se Defendant's Objection in Reply to Commonwealth's Memorandum

in Opposition to Defendant's "Application in the Nature of Writ of Error

Coram Nobis

............. SENT TO JUDGE PIERCE

09/14/2017 ,

General correspondence regarding (P#62) SENT UP TO JUDGE BARRY

............SM[TH IN COURTROOM 530

09/14/2017

General correspondence regarding COPY OF (P#62) MAILED TO ADA

...j........ SANDI^yVEISBERGER @ DA'S OFFICE

12/06/2017

General correspondence regarding Copy of Docket Entries sent to Robert

............ Williams, Jr,

03/22/2018

.63........ P®f®n^.?!lt.'®...M.°^9.,].!f?r.]llearing On The Merits (PLACED IN 430 BOX)

03/22/2018

.64...... Defendant:'s...Motion for Appointment of Counsel (PLACED IN 430 BOX)

04/04/2018

ORDER: Order On Defendant's Application in the nature of Writ of Error

Coram Nobis, treated as Motion for New Trial. Williams' application in the

nature of a writ of coram nobis, which the court treats as a motion for a new

trial, is DENIED. SO ORDERED (Christopher K.Barry-Smith, Justice of the

Superior Court) DATE: April 4,2018

(COPIES MAILED BOTH SIDES ADA SANDRA WEISBERGER AND

DEFT.)

Pierce

Barry-Smith

....... Judge:Bar^

04/04/2018

The following form was generated:

A Clerk's Notice was generated and sent to:

Defendant: Robert Williams,Jr

______ Attorney: Sandra Rose Weisberger, Esq.

Printed: 05/16/2018 3:26 pm

Case No: 8181CR01383

Page: 5

Case l:18-cv-12575-ADB Document 14 Filed 04/18/19 Page 1 of 5

Appendix C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ROBERT WILLIAMS,

Plaintiff,

MINDY HULL, Chief Medical Examiner,

Defendant.

Civil Action No. 18-cv-12575-ADB

MEMORANDUM AND ORDER

BURROUGHS, D.J.

Pro se plaintiff Robert Williams brings this action under 42 U.S.C. § 1983 (“§ 1983”) in

which he asks that the Court order the Commonwealth’s Chief Medical Examiner, Mindy Hull,

to amend the death certificate of the person of whose death Williams was convicted. Williams

has paid the filing fee. For the reasons set forth below, the Court will direct the plaintiff to show

cause why this action should not be dismissed.

BACKGROUND

Williams is serving a prison sentence for the 1981 murder of Donald Roberts. See

Commonwealth t>. Williams, 503 N.E.2d I (Mass. 1987).1 According to evidence at Jial,

Williams and another defendant stabbed Roberts during the robbery of a package store in

Lowell, Massachusetts on March 4,1981. See id. at 3. The next day, the victim lost

consciousness while in the hospital. See id. He remained unconscious until he died two weeks

later. Id. During the January 1982 criminal trial, the medical examiner testified that Roberts

died as a result of multiple stab wounds that perforated the brain. Id. The same cause of death

l The Court takes judicial notice of Commonwealth v. Williams, 503 N.E.2d 1 (Mass. 1987).

Case l:18-cv-12575-ADB Document 14 Filed 04/18/19 Page 2 of 5

appeared on the death certificate, which is dated March 23, 1981. Id.; Compl. Exs. [ECF No. 12] at 2.

In the present complaint, Williams maintains that “evidence will overwhelmingly

establish that the death certificate is incorrect, in that it states that the victim died from stab

wounds to the skull and brain.” Compl. [ECF No. 1] 11. He represents that said evidence

establishes that Roberts died because of the gross negligence of physicians who treated Roberts

at the hospital after the assault and robbery. See id. ^ 10. Williams attaches to the complaint

affidavits, notes, and other documents by doctors and other medical providers who concluded

that Roberts’ immediate cause of death was oxygen deprivation caused by the malpractice of

physicians treating the victim’s wounds. See Compl. Exs.

Williams asks that the Court “afford” the Commonwealth’s Chief Medical Examiner “an

opportunity to amend the cause of death on the death certificate of Donald E. Roberts. Compl.

at 11. Williams further requests that “[i]f that does not occur,” the Court order the defendant to

amend the death certificate to include the true cause of death ... that Donald E. Roberts died

from severe hypoxia and cardiac arrest.” Id.

DISCUSSION

Under federal law, the Court is obligated to conduct a preliminary review of a complaint

filed by a prisoner who “seeks redress from a governmental entity or officer or employee of a

governmental entity.” 28 U.S.C. § 1915A(a). The Court may dismiss the compliant sua sponte

if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

Here, Williams’ complaint is subject to dismissal because it fails to state a claim upon

which relief may be granted. Section 1983 provides a private right of action against a person

Case l:18-cv-12575-ADB Document 14 Filed 04/18/19 Page 3 of 5

acting under state law who has deprived the plaintiff of a right secured by federal law. See 42

U.S.C. § 1983. Williams invokes the Fourteenth Amendment to the United States'Constitution.

Compl 127. The Court assumes that Williams is referring to the Due Process Clause of the

Fourteenth Amendment. This guarantee of due process “protects persons against deprivations of

life, liberty, or property; and those who seek to invoke its procedural protection must establish

that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

Williams has not alleged facts supporting that he has a life, liberty, or property interest in

the amendment of Roberts’ death certificate. Williams argues that the Fourteenth Amendment

“guarantees Robert Williams, Jr., and all others, that all death certificates must be correct and list

the correct cause of death predicated upon the correct medical reporting and that the result must

be articulated and based upon correct medical testing and results.” Compl. K 27. However, the

cases he cites in support of this conclusion merely illustrate that a death certificate can be

amended in appropriate circumstances. They do not hold that all individuals have a protected

interest in the death certificates of others.

Further, the Court does not discern any basis for concluding that Williams has a protected

interest in the amendment of Roberts’ death certificate in particular. The fact that the death

certificate identifies a stab wound as the cause of death does not interfere with Williams ability

to raise, in the appropriate proceeding, evidence of the physicians’ malpractice, Williams’

widow, who sued the treating physicians for malpractice in September 1981, was apparently

successful in obtaining a favorable ruling from the medical malpractice tribunal, notwithstanding

that the death certificate identified a stab wound to the head as the cause of death. See Williams,

503 N.E.2d at 3^1.

Case l:18-cv-12575-ADB Document 14 Filed 04/18/19 Page 4 of 5

In addition, amendment of the death certificate to include only the immediate cause of

Roberts’ death would not absolve Williams of criminal liability. In upholding the denial of

Williams’ motion for a new trial to include evidence of the medical malpractice lawsuit, the

Supreme Judicial Court concluded that “a jury would not be warranted in considering evidence

that the victim’s wounds were negligently treated unless there also was evidence that that

treatment was the only cause of the victim’s death.” Id. at 4; see also id. (We have said that

‘[i]f a person inflicts a wound with a deadly weapon in such manner as to put life in jeopardy,

and death follows as a consequence of this felonious and wicked act, it does not alter its nature or

diminish its criminality to prove that other causes cooperated in producing the fatal result.’”

(alteration in original) (quoting Commonwealth v. Fernette, 500 N.E.2d 1290,1296 (Mass.

1986)).2

III.

CONCLUSION

In accordance with the foregoing, the Court hereby orders:

(1)

Williams must show cause, within forty-two (42) days of the date of this order,

why this action should not be dismissed for failure to state a claim upon which relief may be

granted. Failure to comply with this order may result in dismissal of this action.

(2)

The motion for pro bono representation [ECF No. 9] is DENIED.

2 It is unclear whether Williams is taking the position that death certificate falsely states that

Roberts received a stab wound to the head, or simply that it was the medical malpractice, not the

stab wound to the head, that caused Roberts’ death. See Compl.

1, 16, 19. To the extent

Roberts’ theory is the former, the evidence he has submitted belies that position. Even assuming

that the newly-digitized x-ray of the victim he submitted does not show a stab wound to the head,

see id.

9, 17, the materials from the malpractice case he filed with the complaint indicate that

the surgery during which the malpractice occurred was undertaken to address internal bleeding

caused by the stab wound to the head. See, e.g., Compl. Exs. at 5, 30-31.

Case l:18-cv-12575-ADB Document 14 Filed 04/18/19 Page 5 of 5

(3)

The motion to serve defendant Mindy Hull by certified mail is DENIED [ECF

No. 10] because that method of service is not authorized by Rule 4 of the Federal Rules of Civil

Procedure.

(4)

The motion to be supplied with summons [ECF No. 11] is DENIED.

(5)

The motion for an extension of time to complete service [ECF No. 13] is

DENIED as unnecessary because a summons has not issued pending the Court’s preliminary

review of the action. If the Court later orders that a summons issue, Williams will be afforded

adequate time to complete service.

SO ORDERED.

/s/ Allison D. Burroughs

ALLISON D. BURROUGHS

DISTRICT JUDGE

April 18, 2019

Appendix D

‘(Hip Cammhnftttalilj af ^Massachusetts

Supreme Judicial Court

For Suffolk County

John Adams Courthouse

One Pemberton Square, Suite 1300

Boston, Massachusetts 02108-1707

MAURA S. DOYLE

CASE INFORMATION (617) 557-1100

FACSIMILE (617) 557-1117

WWW.SJCCOUNTYCLERK.COM

ATTORNEY SERVICES (617) 557-1050

CLERK

May 9, 2019

FACSIMILE (617) 557-1055

Robert Williams, Jr., Pro Se

W-38699

MCI Shirley - P.O. Box #1218

Shirley, MA 01464

RE:

No. SJ-2018- 0327

COMMONWEALTH

ROBERT WILLIAMS, JR.

Middlesex Superior Court

No.8181CR1383

NOTICE OF DOCKET ENTRY

You are hereby notified that on May 9, 2019, the following

was entered on the docket of the above referenced case:

ORDER ON RECONSIDERATION: as on file.

To:

(Cypher, J.)

Robert Williams, Jr.

Emily Kathleen Walsh, Assistant District Attorney

Middlesex Superior Court Dept.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

No. SJ-2018-327

SUFFOLK, ss.

Middlesex Superior Court

NO. 8181CR1383

COMMONWEALTH

ROBERT WILLIAMS, JR.

ORDER ON RECONSIDERATION

This matter came before the court, Cypher, J., on the defendant's application pursuant to G L. c.

278, § 33E, for leave to appeal from the April 4, 2018 ruling of the trial court, Barry-Smith, J. The

application was denied on April 11, 2019. The defendant now asks for reconsideration, suggesting

there are issues overlooked and misapprehended.

The court has reconsidered the matter, and orders that the ruling entered on April 11,2019

stands. The application is denied.

»her, J.)/

Dated:

May 9,

2019

10/02/2018

8:54 am

THIS CASE CONTAINS IMPOUNDED MATERIAL OR PID

, Forecourt Paragon ®

Commonwealth of Massachusetts

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

Docket Sheet

SJ-2018-0327

COMMONWEALTH v. ROBERT WILLIAMS, JR.

CASE HEADER

Entered

Case Status

Case Nature

Justice

Clerk

Disposition

SJC Single Justice

Docket Type

07/23/2018

Status Date

monewtrl - Mot for New Trial

Sub-Nature

Under Advisement

Partially Impounded

Public

Disposition Date

07/23/2018

Active

gatkpr - Gatekeeper c 278 s 33E

Other Court Information

Trial Court

Lower Court

Case Type

Middlesex Superior Court (smiddl)

Trial Court

8181CR1383

TC Number

04/04/2018

TC Ruling Dt

Lower Ct Judge(s) Christopher Barry-Smith, J.

Pet Role LCt

TC Not App Dt

Defendant in lower court

TC Dispo

Role(s)

Motion denied

Heard Motion

ATTORNEY APPEARANCE

I INVOLVED PARTY

Robert Williams, Jr., W-38699

Defendant/Petitioner

MCI Shirley

P.O. Box #1218

Shirley, MA 01464

Active 07/23/2018 Entitled,

Commonwealth

Plaintiff/Respondent

Active 07/23/2018

Middlesex Superior Court Dept.

(Lower Court criminal)

Clerk for Criminal Business

200 TradeCenter

Wobum, MA 01801

Phone: 781-939-2700

Active 07/23/2018

'cdssj', '307012', '231700', 'y', 'y', 'y'. 'y', ’/

Page

1 of 2

, Forecourt Paragon ®

10/02/2018

8:54 am

THIS CASE CONTAINS IMPOUNDED MATERIAL OR PID

Commonwealth of Massachusetts

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

Docket Sheet

SJ-2018-0327

COMMONWEALTH v. ROBERT WILLIAMS, JR.

DATE

07/23/2018

07/23/2018 1

ENTRY

Case entered.

Affidavit of Indigency & Request for Waiver, Substitution or State Payment of Fees & Costs pursuant to G.L. c.

261, S.27A-G. (IMPOUNDED)

07/23/2018 2

Defendant — Appellant's Application to a Single Justice, the Gatekeeper, of this Supreme Judicial Court From

an Order of the Middlesex County Superior Court with attachments filed by Robert Williams, Jr., Pro Se.

07/23/2018 3

Letter to Clerk Maura S. Doyle from Robert Williams Jr., Pro Se.

07/30/2018 4

Letter to Robert Williams, Jr. re: service of process and enclosing sample certificate of service.

U7/30/2018 5

Determination Regarding Fees & Cosis by Cierk:ALLO’vVED FORTriWITl!.

07/30/2018 6

f'X-ray films arid CD filed by Robert Williams, Jr., Pro Se. (IMPOUNDED)

08/13/2018 7

Certificate of service of paper filed by Robert Williams, Jr.

10/01/2018 8

Letter to Clerk Maura S. Doyle from Robert Williams, Jr. saying "May I please have an updated docket entry

sheet. And may I request to correct the exhibit number on the X-rays film presented to the court on 7-24-18 of

the victim, Mr. Donald Roberts. I believe the number I placed on them were exhibit (7) but it should be exhibit

(17). Thank you kindly.”

Letter to Robert Williams, Jr. from Clerk Maura S. Doyle saying,"Pursuant to your 9/25/2018 request received

on 10/01/2018, enclosed please find a copy of the docket sheet."

_______________

10/02/2018 9

'cdssj', ’307012', '231700', 'y','y', V, 'y'

Page

2 of 2

03/28/2019

2:50 pm

THIS CASE CONTAINS IMPOUNDED MATERIAL OR PID

. Forecourt Paragon ®

Commonwealth of Massachusetts

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

Docket Sheet

SJ-2018-0327

COMMONWEALTH v. ROBERT WILLIAMS, JR.

CASE HEADER

Entered

| Case Status

lease Nature

Justice

Clerk

Disposition

07/23/2018

Under advisement

gatkpr - Gatekeeper c 278 s 33E

Cypher, J.

Lower Court

Case Type

Trial Court

TC Number

TC Ruling Dt

Lower Ct Judge(s)

Trial Court

SJC Single Justice

Docket Type

02/27/2019

Status Date

monewtrl - Mot for New Trial

Sub-Nature

Under Advisement 02/27/2019

Partially Impounded

Public

Disposition Date

;

Other Court Information

Middlesex Superior Court (smiddl)

8181CR1383

04/04/2018

Christopher Barry-Smith, J.

; INVOLVED PARTY

Robert Williams, Jr.

i Defendant/Petitioner

iW-38699

:MCI Shirley - P.O. Box #1218

I Shirley, MA 01464

Active 07/23/2018

Commonwealth

Plaintiff/Respondent

Active 07/23/2018

Middlesex Superior Court Dept.

(Lower Court: criminal)

Clerk for Criminal Business

200 TradeCenter

Woburn, MA 01801

Phone: 781-939-2700

Active 07/23/2018 Entitled,

•cdssj’, '324112', ’231700', 'y', 'y', V. V. V

Pet Role LCt

TC Not App Dt

Defendant in lower court

TC Dispo

Role(s)

Motion denied

Heard Motion

'! '

ATTORNEY APPEARANCE

;Pro Se

Active 07/23/2018 Entitled,

Emily Kathleen Walsh

Assistant District Attorney

Middlesex District Atty's Office

i 15 Commonwealth Ave

Woburn, MA 01801

; Phone: 781-897-8732

:678212 Active 02/27/2019 Entitled, eMail Only (APC)

Page

1 of 2

Forecourt Paragon ®

03/28/2019

2;50 pm

THIS CASE CONTAINS IMPOUNDED MATERIAL OR PID

Commonwealth of Massachusetts

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

Docket Sheet

SJ-2018-0327

COMMONWEALTH v. ROBERT WILLIAMS, JR.

;: DATE

07/23/2018

ENTRY

Case entered.

107/23/2018 1

(IMPOUNDED)Affidavit of Indigency & Request for Waiver, Substitution or State Payment of Fees & Costs

pursuant to G.L. c.261, si27A-G filed by Robert Williams, Jr., pro se.

:! 07/23/2018 2

Defendant — Appellant's Application to a Single Justice, the Gatekeeper, of this Supreme Judicial Court From

an Order of the Middlesex County Superior Court with attachments filed by Robert Williams, Jr., Pro Se.

: 07/23/2018 3

Motion to Allow Late Filing of Appeal filed by Robert Williams Jr., Pro Se.

07/30/2018 4

Letter to Robert Williams, Jr. re: service of process and enclosing sample certificate of service.

; 07/30/2018 5

Determination Regarding Fees & Costs by Clerk:ALLOWED FORTHWITH.

07/30/2018 6

m/lDOl

Y_row

onH

hw •D^horf

Ir |^l

nrr*

yilVIl w WXIMnPn\

j XX

I ujf filmc

llll I

IU x/

LX filarl

I IIWXI k/JT

WWW! I VA/illiamc

« IIIIIUI I IU( VI.)

w ww.

08/13/2018 7

Certificate of Service filed by Robert Williams, Jr., pro se.

; 10/02/2018 9

Letter to Robert Williams, Jr. from Clerk Maura S. Doyle saying,"Pursuant to your 9/25/2018 request received

on 10/01/2018, enclosed please find a copy of the docket sheet."

;

Commonwealth's Memorandum In Opposition To Defendant's Petition For Leave To Appeal From The Denial

Of His Fourth Motion For New Trial Pursuant to G. L. c. 278, § 33E with Certificate of Service filed by ADA

Emily Walsh.

;

Letter to Clerk Maura S. Doyle from Robert Williams, Jr. saying "May I please have an updated docket entry

sheet. And may I request to correct the exhibit number on the X-rays film presented to the court on 7-24-18 of :

the victim, Mr. Donald Roberts. I believe the number I placed on them were exhibit (7) but it should be exhibit ;

(17). Thank you kindly."

: 10/01/2018 8

)

102/27/2019

02/27/2019 11

Record Appendix filed by ADA Emily Walsh.

102/27/2019

Under advisement. (Cypher, J.).

! 03/08/2019 12

Defendant Robert Williams, Jr's Response and Reply to Commonwealth's Memorandum In Opposition to

Defendant's Petition for Leave to Appeal from the Denial of his Fourth Motion for New Trial Pursuant to G.L. c.

278, § 33E filed by Robert Williams, Jr., with attached Certificate of Service.

03/28/2019 13

Letter to Clerk from Robert Williams, Jr., pro se saying ... "Can you please confirm filing of documents were

received."... filed.

03/28/2019 14

Letter to Robert Williams, Jr., pro se from Maura S. Doyle, Clerk saying "Pursuant to your 03/24/2019 request

received on 03/28/2019, enclosed please find a copy of the docket sheet in the above-entitied matter."

'cdssj', '324112', '231700', 'y', 'y\

'y', y

Page

2 of 2

Appendix F

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

ROBERT WILLIAMS, JR.,

Petitioner,

) CIVIL ACTION NO. 07-11920-PBS

)

STEVEN O'BRIEN,

Respondent.

MEMORANDUM AND ORDER

August 21, 2008

Saris, U.S.D.J.

Pro se habeas petitioner Robert Williams, Jr., who was

convicted of first degree murder and armed robbery in 1982,

brings this habeas petition pursuant to 28 U.S.C. § 2254,

asserting five separate grounds for habeas relief.

The

government vigorously opposes, and argues that all of the

petitioner's claims are procedurally defaulted or otherwise

futile.

After a review of the submissions, the petition is

DENIED.

BACKGROUND

In May 1981, petitioner Robert Williams, Jr. was charged

with three offenses:

(1) first degree murder;

(2) armed robbery

while masked; and (3) assault and battery by means of a dangerous

weapon.

These charges stemmed from a March 4,

1981 liquor store

robbery, during which a store clerk was stabbed in the head.

clerk died two weeks later, purportedly from the stab wounds.

-1-

The

Following a jury trial in Middlesex Superior Court in January

1982, Williams was convicted of all three charges and was given

concurrent life sentences on the murder and armed robbery

The assault and battery charge was dismissed.

charges.

In January 1984, petitioner appealed his conviction and

separately filed a motion for a new trial under Mass. R. Crim. P.

30(b).

In his motion petitioner argued that newly discovered

evidence showed that the victim had died as a result of medical

malpractice rather than from stab wounds.

denied the motion on March 21, 1985.

The Superior Court

Petitioner then moved for

further hearing or reconsideration of the motion on April 8,

The Superior Court denied the subsequent motion on July

1985.

22, 1985.

Petitioner then filed a second notice of appeal and his two

appeals — one from his conviction, and one from the denial of

his motion for a new trial

were consolidated. Petitioner's

conviction was affirmed as was the denial of his motion for a new

trial.

See Commonwealth v. Williams. 399 Mass. 60 (1987) .

On December 23, 1988, petitioner filed a pro se second

motion for a new trial, which he later amended in August 2006.

The Superior Court denied the second motion on December 18,

2006.1

On June 4, 2007, petitioner filed a "gatekeeper" petition

Nothing in the record explains the delay following the

filing of petitioner's second motion for a new trial. The record

only shows that the motion remained on the•docket and unresolved

-2-

seeking leave to appeal the denial of the second motion.

On July

31, 2007, a single justice denied petitioner's application

because he had "not raised any new and substantial issues."

Docket No. 9 Exh. L) .

(See

On August 20, 2007, petitioner filed a pro

se motion for reconsideration of the denial of leave to appeal.

His motion was denied on August 24, 2007.

Having exhausted his state law remedies, petitioner filed

his pro se habeas corpus petition asserting five claims:

Petitioner was denied due process because the

prosecution withheld material exculpatory evidence at

trial (Ground One);

Petitioner's Sixth' Amendment rights were violated due

to ineffective assistance of counsel (Ground Two);

Petitioner was denied due process because the

prosecution was relieved of its burden to prove every

element of the murder charge, namely the causation of

victim's death (Ground Three);

Petitioner is entitled to an evidentiary hearing

because he alleges he has evidence of actual innocence

(Ground Four); and

Petitioner is entitled to re-sentencing for the armed

robbery conviction because the life sentence (based on

the murder charge) is inadequate once the murder charge

is reversed (Ground Five).

(See Docket No. 11 at vi).

All of the grounds relate to his

claim that the cause of death of the victim was medical

malpractice, not the stabbing.

until the petitioner amended it in 2006.

-3-

II.

DISCUSSION

Procedural Default

The government argues that all of Williams's claims are

procedurally defaulted.

In general, "[i]n all cases in which a

state prisoner has defaulted his federal claims in state court

pursuant to an independent and adequate state procedural rule,

federal habeas review is barred."

56, 67-68 (1st Cir. 2006)

722, 750 (1991) ) .

(quoting Coleman v. Thompson, 501 U.S.

"The SJC consistently enforces the rule that

unpreserved claims are forfeited."

81 (1st Cir. 2004)

Obershaw v. Lanman. 453 F.3d

Horton v, Allen. 370 F.3d 75,

(citing Gunter v. Malonev, 291 F.3d 74, 79

(1st Cir. 2002)).

Williams' primary contention is Ground Three.

He argues

that his due process rights were violated because the trial

judge's instructions on causation effectively relieved the

Commonwealth of its burden to prove each element of the offense

charged beyond a reasonable doubt -- namely proximate cause.

However, as pointed out by the SJC in its decision affirming

Williams' conviction, "counsel for both defendants told the judge

that there was no dispute about causation."

at 62

Williams, 399 Mass.

(emphasis added). "Williams did not request a different

instruction nor object to the one that was given."

Id. at 63.

Under Massachusetts' contemporaneous objection rule, failure

to object to an instruction precludes state appellate review. See

-4-

•'V'

Commonwealth v. Fluker, 377 Mass. 123, 130-31■ (1979) .

Furthermore, as the First Circuit has repeatedly recognized, the

limited review undertaken by the SJC "does not work (as] a waiver

of the contemporaneous objection required" typically imposed by

the Massachusetts courts.

F.3d at 68.

Horton, 370 F.3d at SI; Obershaw, 453

Accordingly, petitioner's third ground for relief is

procedurally defaulted.

Petitioner's other grounds are also procedurally defaulted.

Petitioner raised grounds one, two, four, and five for the first

time on his second motion for a new trial.

Exh. H).

(See Docket No. 9

The trial court rejected the grounds because they

"failed to raise any new issues."

(IdJ .

denied leave to appeal for the same reason.

A single justice

(Idj. Exh. L (" [T] he

defendant has not raised any new and substantial issues.")).

More importantly, the premise for all four grounds, the issue of

causation, was initially raised in petitioner's first motion for

a new trial.

Even then, the trial Court held that the petitioner

"had ample opportunity to .

and the SJC affirmed.

. raise the issue of causation,"

See. Williams, 399 Mass, at 64

decision on motion for new trial).

(quoting

In short, the state court has

found that the petitioner's other grounds were procedurally

defaulted multiple times.

Excuse of Procedural Default

Petitioner contends that the default should be excused

-5-

'-uX

because he can show cause and prejudice for the procedural

default and that there is a risk of miscarriage of justice.

Lynch v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006)

exceptions to procedural default).

(noting these

To show ineffective

assistance of counsel as cause and prejudice, petitioner must

show (1) "that counsel's representation fell below an objective

standard of reasonableness" and (2) that "any deficiencies in

counsel's performance must be prejudicial to the defense," such

that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."

Strickland v. Washington. 466 U.S. 668, 688,

692-93 (1984).

In the instant case, counsel was not ineffective by not

pressing the causation argument based upon negligent medical

treatment because:

The longstanding rule in this Commonwealth is

that '[i]f a person inflicts a wound with a

deadly weapon in such manner as to put life

in jeopardy, and death follows as a

consequence of this felonious and wicked act,

it does not alter its nature or diminish its

criminality to prove that other causes

cooperated in producing the fatal, result.'

Commonwealth v. Fernette, 398 Mass. 658, 668 (1986)

Commonwealth v. Hackett, 84 Mass. 136, 142

(quoting

(2 Allen 1861)).

Fernette, for example, the Court rejected a claim that the trial

court erred in failing to instruct the jury that,"the defendant

is relieved of liability if the jury finds that poor, medical

-6-

}

treatment intervened between the shooting of the victim and his

death," since "even if the jury finds that the wounds of the

victim were improperly treated, which treatment contributed

the death of the victim, the defendant is not relieved of

criminal responsibility for his actions."

Id.

(citing Hackett);

see also 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(f)(5)

at 485 86 (2d ed. 2003)

(pointing out that mere negligence in

medical treatment is not so abnormal as to absolve petitioner of

liability).

Moreover, in its decision affirming petitioner's

convictions, the SJC held "that a jury

would not be warranted in

considering evidence that the victim 's wounds were negligently

treated unless there is also evidence that the treatment was the

only cause of the victim's death."

(emphasis added).

Williams. 399 Mass. at 64

It held "it is at least doubtful t-hat the

evidence on which Williams relies would affect

the result at a

new .trial".

Id. at 65.

Here, petitioner's ineffective assistance of counsel claim

is without merit.

As noted by the SJC, there was evidence that

petitioner inflicted "multiple stab wounds with perforation of

the skull and the brain" upon the victim.

62.

Williams. 399 Mass, at

More importantly, petitioner has presented no evidence that

the victim's only cause of death was the negligent medical

treatment.

Accordingly, counsel was not ineffective for failing

to contest causation.

-7-

Actual Innocenns

In a somewhat different twist of the same argument,

petitioner argues that he is'actually innocent of first-degree

murder because the purported medical malpractice caused the death.

To establish actual innocence, petitioner must

demonstrate that based on new and reliable evidence,

"it is more

likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt."

U.S. 518, 537 (2006)

(1995)) .

House v, Be31. 547

(quoting Schlup v. Delo, 513 U.S. 298, 327

The actual innocence exception "is very narrow,

reserved for truly exceptional cases."

19, 21 (1st Cir. 2007)

Walker v, Russo. 506 F.3d

(citation omitted).

The argument fails for two reasons.

First, petitioner's

alleged exculpatory evidence does not qualify as new evidence

because the evidence was available at the time of trial.

Without any new evidence of innocence, even the existence of a

concededly meritorious constitutional violation is not in itself

sufficient to establish a miscarriage of justice that would allow

a habeas court to reach the merits of a barred habeas claim."

Schlup, 513 U.S. at 316 (emphasis added).

In denying

petitioner's first motion for a new trial, the trial judge

observed that "the malpractice action was entered in September

1981, and the tribunal finding was made in January, 1982 ... If

the victim's widow was able to gatner enough evidence to make an

-8-

offer of proof to the tribunal [before] January, 1982, the

[petitioner] also had ample opportunity to examine the hospital

records and raise the issue of causation" at petitioner's trial,

which proceeded from January 6 through January 12, 1982.

Williams, 399 Mass, at 64.

See

Thus, the evidence of medical

malpractice that constitutes petitioner's actual innocence

evidence was "as available to Williams before trial as it had

been to the victim's widow," id. at 64, and does not qualify as

"new" evidence sufficient to support a claim of actual innocence.

Second, even if the evidence was new, petitioner cannot show

that " no reasonable juror would have found him guilty beyond a

►

reasonable doubt" because a causation defense based

on negligent

medical treatment is not viable under state law.

ORDER

For the reasons stated, Williams' petition for a writ of

habeas corpus (Docket No. 1) is DENIED.

S/PATTI B. SARIS______________

United States District Judge

-n

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