Petition for Writ of Certiorari — Amadi Sosa, Petitioner v. Massachusetts

No.

In the Supreme Court of the United States

AMADI SOSA,

Petitioner,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Judicial Court

of Massachusetts

PETITION FOR A WRIT OF CERTIORARI

John M. Thompson, Esq.

Counsel of Record

Linda J. Thompson

Thompson & Thompson, P.C.

75 Market Place

Third Floor

Springfield, MA 01103

(413) 222-7215

habeasjohn@ttpclaw.com

QUESTIONS PRESENTED

1. In a joint trial on a joint venture murder charge, the trial judge

implemented a state protocol’ that enabled one co-defendant to give

perjured testimony in his own defense and barred the other defendant

[Petitioner] from cross-examining the perjuring witness about the

influence of this order on his testimony. That order also authorized the

prosecutor to make unlimited use of the perjury.

The judge then denied Petitioner's prompt motion for relief from

prejudicial joinder. The perjury protocol was implemented on the trial

judge’s terms.”

The parties agree that the vast majority of the perjuring witness's

testimony was false. No specific instances of perjury can be identified

given the requirements for implementing the perjury protocol.

In these circumstances:

A. Did the combined impact of implementing the perjury

protocol and denying severance violate Petitioner’s due process

right to a trial free of the knowing use of perjured testimony

against him by state officials?

B. Did the perjury protocol as implemented violate

Petitioner’s sixth amendment right to confront and cross-examine

this perjuring witness?

2. Under Massachusetts felony-murder doctrine of “constructive

malice,” the intent to commit the predicate felony is substituted for the

malice aforethought element of murder.’ For first degree felony-murder,

the predicate felony must be one punishable by life imprisonment. Thus

1

Rule 3.3(e), Massachusetts Rules of Professional Conduct, a23.

2

Commonwealth v. Leiva, 484 Mass 766, 146 N.E.3d 1093 (2020).

3

Commonwealth v. Matchett, 386 Mass 492, 502, 486 N.E.2d 400 (1982).

je

the first element of felony-murder in the first degree is that the killing

occurred in the course of the commission of a felony for which the

maximum penalty is life imprisonment.

Is the fact of the maximum penalty for the specified

predicate felony a Winship’ fact that must be proved by evidence

beyond a reasonable doubt?

4

Commonwealth v. Burton, 455 Mass 55, 57, 876 N.E.2d 411 (2007).

5

In re Winship, 397 U.S. 358, 990 S.Ct 1068, 25 L.Ed.2d 368 (1970)

-ji-

PARTIES TO THE PROCEEDINGS IN STATE COURT

Petitioner Amadi Sosa was a defendant in the Hampden County

Superior Court joint venture murder prosecution, accused as an

accomplice, and the appellant in the Massachusetts Supreme Judicial

Court review of his convictions, Commonwealth v. Sosa, No. SJC-12166.

Julio Leiva was Sosa’s co-defendant, charged with shooting the victim.

Leiva testified in the joint trial of these two defendants, under an order

implementing Rule 3.3(e) of the Massachusetts Rules of Professional

Conduct. His appeal was decided separately by the Supreme Judicial

Court. Commonwealth v. Leiva, 484 Mass 766, 146 N.E.3d 1093 (2020). He

was not a party to Petitioner’s state appeal.

Respondent Commonwealth of Massachusetts was the plaintiffappellee in the Supreme Judicial Court.

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RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6 petitioner states that he has

no relationships that require disclosure.

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TABLE OF CONTENTS

QUESTIONS PRESENTED.......... occ ec eeceeesecrceeeeeeeeeeees

RULE 29.6 STATEMENT .......000 eee eeeeeeesererereeeesseeeeeaees

TABLE OF AUTHORITIES...000.. ccc cccesesseeeeseeeeenenes

OPINIONS BELOW..00o oo cceceescsecceceeeececceeeseeetenenssaseeees

JURISDICTION......... eee eeeceeeceeeseneannneneeeseeenneeeaeeeeeseees

CONSTITUTIONAL AND STATUTORY PROVISIONS

Key Procedural Facts.............ccccssseeeeeeeeeccceeeeeeeeeenenenees

The Essential Facts Of The Crime.....................:::008

A. First Question Presented.............cccceeeeecceeeeseeseeeeeees

1. Presentation To State Courts

a. Trial Court Motions For Relief

From Prejudicial Joinder....................06

2. Presentation To Supreme Judicial Court.....

B. Reasons For Granting The Writ On Question

1. The Supreme Judicial Court Failed To

Apply Controlling Federal Precedents As

Required By The Supremacy Clause..............

2. Petitioner’s Claim Presents An Issue Of

First [mpreSSion..............ccccccseeceeeeeeseeeeeceeseenees

C. Second Question Presented

1. Presentation To The Trial Court..................

2. Presentation To The Supreme Judicial

3. Reasons For Granting The Writ On

Question TW0........ccccccccccscececeeeneeeeeneneenenes

CONCLUSION. ....... oo. ccccecesesesescesececcccceceeececeeeseeceseaesseeeeneteees

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma,

A470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ......... 12

Alcorta v. Texas,

355 U.S., 78 8.Ct. 103, 2 L.Ed.2d 9 (1957) .........0000.. 17

Alleyne v. United States,

570 U.S. 99, 183 S.Ct. 2151, 186 L.Ed.2d 314 (2013)....... 27

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 4385 (2000)........ 27

Arizona v. Evans,

514 U.S. 1, 115 S.Ct. 1185, 181 L.Ed.2d 34 (1995) ........ 13, 18

Builer v. United States,

414 A.2d 844 (D.C. Cir. 1980)...........000.0.000...0.. 16

Commonwealth v. Baseler,

419 Mass. 500, 645 N.E.2d 1179 (1995) ......0.0000..0.. 10

Commonwealthv. Billingslea,

484 Mass. 606, 143 N.E.3d 425 (2020)..........0........ 13

Commonwealth v. Brown,

477 Mass. 805, 81 N.E.2d 1178 (2017)............0...... 21

Commonwealth v. Burton,

455 Mass. 55, 876 N.E.2d 411 (2007)...........00.00.... 21, 22

Commonwealth v. Christian,

430 Mass. 552, 722 N.E.2d 416 (2000)...............0.. 24

-vi-

Commonwealth v. DaCosta,

96 Mass.App.Ct. 105, 132 N.E.2d 1067 (2019)............ 27

Commonwealth v. Fredetie,

480 Mass. 75, 101 N.E.3d 277 (2018) ...............00.0. 24

Commonwealth v. Gunier,

459 Mass. 480, 945 N.E.2d 386 (2011).................. 13

Commonwealth v. Leiva,

484 Mass. 766, 146 N.E.3d 1093 (2020)................. 19

Commonwealth v. Mascittt,

534 A.2d 524, 368 Pa.Super. 454 (Pa. Super. 1987)........ 16

Commonwealth v. Matchett,

386 Mass. 492, 436 N.E.2d 400 (1982).................. 22

Commonwealth v. Miranda,

492 Mass. 301, 211 N.E.3d 54 (2023)................... 13

Commonwealth v. Moran,

387 Mass. 644, 442 N.E.2d 399 (1982). ................. 10

Commonwealth v. Sosa,

493 Mass. 104, 222 N.E.3d 5 (2028). .......0.......0005. 5,8

Commonwealth v. Yasin,

483 Mass. 343, 132 N.E.3d 531 (2019).................. 10

Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)....... 18

Cuyler v. Sullivan,

446 U.S.335, 100 S.Ct. 1708, 64 L.Ed. 2d 333 (1980)....... 14

-Vi-

Da Luna v. United States,

308 F.2d 140 (5 Cir. 1962).......0. 000.0... cee eee 5

Davis v. Alaska,

415 U.S. 308, 94 8.Ct. 1105, 39 L.Ed.2d 347 (1974)........ 18

Delaware v. Van Arsdall,

475 U.S. 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)....... 18

Dickerson v, Attorney General,

396 Mass. 740, 488 N.E.2d 757 (1986) .................. 13

Erlinger v. United States,

__ US. __, 219 L.E.2d 21, 2024 U.S.LEXIS 2715,

2024 WL 3074427 (2024) ...............0000. 26, 27, 28, 30

Giglio v. United States,

405 U.S. 150, 92 S.Ct. 768, 31 L.Ed.2d 104 (1972)......... 17

Giles v. California,

554 U.S. 353, 128 8.Ct. 2678, 171 L.Ed.2d 488 (2008)...... 17

In re Winship,

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)........ li

Jackson v. Virgina,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)........ 29

McCoy v. Louisiana,

584 U.S. 414, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018)..... 14, 15

Napue v. Illinois,

360 U.S. 264, 79 S.Ct. 1178, 3 L.Ed.2d 1217 (1959)........ 17

Nix v. Whitehead,

475 U.S. 157, 106 S.Ct. 998, 89 L.Ed.2d 123 (1986)........ 18

-V1i-

People v. Bartree,

208 Ill. App.3d 105, 566 N.E.2d 855 (Ill. 1991)........... 16

People v. Salquerro,

433 NYS2d 711, 107 Mise. 155 (1980) ................2.. 16

Rodrigues v. Rodrigues,

2023 U.S. Dist.LEXIS 194925 (2028)................... 27

Shockley v State,

565 A.2d 1873 (DEL. 1989) ........... 0.0... ee eee 16

State v. Fosnight,

679 P.2d 174, 235 Kansas 52 (Kansas 1984) ............. 16

Toci v. Tocti,

490 Mass. 1, 189 N.E.3d 241 (2022).................... 10

United States v. Alvarez,

567 U.S. 709, 1382 S.Ct. 2537, 183 L.Ed.2d 574 (2012)...... 4,19

United States v. Gaudin,

515 U.S. 506, 115 S.Ct. 2310, 1382 L.Ed.2d 444 (1995) ...... 26

United States v. Long,

857 F.2d 486 (8 Cir. 1988) ..... 00. eee 16

Vachon v. New Hampshire,

414 U.S. 478, 948.Ct. 664, 38 L.Ed.2d 666 (1974).... 26, 29

Weaver v. Massachusetts,

582 U.S. 286, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017)...... 14

STATUTES & RULES

Rule 3.3(e), Massachusetts Rules of Professional Conduct....... 1

-vill-

Rule 22 of the Massachusetts Rules of Criminal Procedure... 10, 11

M.G.L. ¢. 278, §83E. ee cece cece eee evteeneeveee. 13

CONSTITUTION

The Supremacy Clause, United States Constitution art. VI, cl. 2. 1

Fifth Amendment to the United States Constitution........... 1

Sixth Amendment to the United States Constitution........... 2

Fourteenth Amendment to the United States Constitution...... 2

OTHER AUTHORITIES

Brodin & Avery, Handbook of Massachusetts Evidence,

§6.7 (2017) eee eens 15

Greaney and Comerford, The Law of Homicide in

Massachusetts, Flaschner Judicial Institute (2009)........ 25

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PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Supreme Judicial Court of Massachusetts (App.,

infra, la - 17a) is reported as Commonwealth v. Sosa, 493 Mass 104, 222

N.E.3d 5 (2023). No other ruling is reported.

JURISDICTION

The Supreme Judicial Court’s judgment was entered November 30,

2023. A timely petition for rehearing was denied on February 16, 2024.

(App., infra ). A timely motion to enlarge the time for filing a petition for

a writ of certiorari to July 15, 2024 was granted on May 9, 2024

[Application 23A1001]. The jurisdiction of this Court is invoked under 28

U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Supremacy Clause of the Constitution provides in relevant part:

“(T] he Laws of the United States * * * shall be the supreme Law of the

Land * * * any Thing in the Constitution or laws of any State to the

Contrary notwithstanding.”

U.S. Constitution art. VI, cl. 2.

The Fifth Amendment to the Constitution provides in relevant part:

“No person shall be... deprived of life, liberty, or property, without

due process of law... .”

The Sixth Amendment to the Constitution provides in relevant part:

“In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by animpartial jury, ... and to be informed of the

nature and cause of the accusation; to be confronted with the witnesses

against him; ..., and to have the assistance of counsel for his defense.”

The Fourteenth Amendment to the Constitution provides in relevant

part:

“No state shall . . . deprive any person of life, liberty, or property,

without due process of law(.)”

STATEMENT OF THE CASE

INTRODUCTION

Petitioner Amadi Sosa was convicted of first degree murder in a joint

trial with co-defendant Julio Leiva. Two orders by the trial judge

interjected perjured testimony into the trial stripping Petitioner of his due

process right to a trial free from the knowing use of perjury by state

authorities. The judge’s order wholly deprived Petitioner of his right to

confront and cross examine Leiva about his perjury.

This happened to Petitioner only because he was being tried jointly

with Leiva and the judge enabled Leiva’s perjury but denied Petitioner’s

motion for relief from prejudicial joinder.

Without warning at the close of the prosecution’s case, Leiva’s

attorney invoked Rule 3.3(e) of the Massachusetts Rules of Professional

Conduct, requesting that the trial judge enable Leiva to perjure his

testimony. The judge, the prosecutor and Petitioner’s counsel were all

unaware of the fact that, in 2008, the Massachusetts Supreme Judicial

Court had devised a protocol, based on Rule 3.3(e), for dealing with the

problem of “client perjury” by permitting a defendant to testify falsely

3.

with only minimal assistance of counsel and limited cross-examination.

Leiva’s motion prompted a brief sidebar discussion and a short recess to

permit some superficial research. The judge then issued an impromptu

order having three unconstitutional provisions: [1] Leiva was enabled to

perjure his testimony while enjoying the benefit of his lawyer's

confidences; [2] The prosecutor was allowed to make unlimited use of

Leiva’s testimony; and [3] Leiva could not be cross-examined about the

fact that he was testifying under Rule 3.3(e) nor about the impact of that

protocol on his testimony or credibility.

When implemented the Rule 3.3(e) protocol misleads the jury by

masking the facts that the court is knowingly permitting the perjuring

witness to give perjured testimony. This is a device that is at war with

justice and the truth. United States v. Alvarez, 567 U.S. 709, 720-721, 132

S.Ct. 2537, 183 L.Ed.2d 574 (2012). There was a simple remedy for

Petitioner's conundrum, and he promptly asked for it: relief from

prejudicial joinder. Without explanation the trial judge denied both

motions Petitioner made, one before and the other after Leiva testified. In

these circumstances, Petitioner was constitutionally entitled to a separate

trial. See, Da Luna v. United States, 308 F2d 140, 155 (5" Cir. 1962). But

the Massachusetts Supreme Judicial Court rejected Petitioner’s claims of

constitutional error.

Petitioner was convicted of felony-murder on a verdict that he was

involved in a death that occurred during the commission of an attempted

armed robbery, which is punishable by life imprisonment. To convict

Petitioner of this type of murder the prosecution had to prove that the

predicate felony was a life felony. Commonwealth v. Sosa, 493 Mass 104,

119, 223 N.E.3d 5 (2023), al2-a13. But no evidence was presented to prove

this point; it was established by information conveyed to the jury in a

judicial instruction. a42-a44. Petitioner asserts that the fact of a life

felony is an element that must be proved by evidence beyond a reasonable

doubt. The Supreme Judicial Court held that the proposition is not an

element that must be found by a jury; it did not rule on the issue of proof

by evidence beyond a reasonable doubt. It denied his claim of right to an

acquittal. Sosa, id.

Because the Massachusetts courts have denied Petitioner

constitutionally required relief, he asks this Court to review and reverse

his convictions.

Key Procedural Facts

In January 2016 Petitioner was called to trial in the Superior Court

of Hampden County Massachusetts with codefendants Julio Leiva and

Alex Santana in a joint venture murder prosecution. Leiva was accused

of shooting William Serrano on November 10, 2013 in the course of a

confrontation that might have been an attempted armed robbery.

Petitioner and Santana allegedly participated as Leiva’s accomplices.

In a pretrial hearing on January 21, 2016 the trial judge granted

Santana’s motion to sever, with the prosecutor's assent. This meant that

a second trial in the case was at least contemplated before Petitioner’s

joint trial with Leiva commenced.

The Essential Facts Of The Crime

According to the only eyewitness, Caitlin Roncalli, she was sitting

on the back porch with her new boyfriend, Serrano. Three men came onto

the unlit porch. One of the men, Julio Leiva, was Roncali’s longtime “on

and off’ boyfriend; he was armed with a shortened rifle. Leiva instructed

the two men with him to “run” Serrano’s pockets. The two gestured as if

to do that. Suddenly, without provocation, Leiva shot Serrano seven times.

493 Mass at 107, a8. Police arrived within minutes in response to a 911

call. Serrano subsequently died at a local hospital.

Roncali immediately provided police with information about Leiva,

asserting that he had carried the rifle that was used to shoot Serrano. 493

Mass at 106, a2. Later, referring to photo arrays shown to her, Roncalli

identified John and Amadi Sosa as the two Leiva accomplices. From that

point through her trial testimony, Roncalli never waivered from her

“210%” certainty that John and Amadi were the two Leiva accomplices.

However, police investigation definitively established that John Sosa

could not have been at the shooting because his GPS monitor placed him

elsewhere at the time. Thereafter the police charged Alex Santana, as the

second accomplice. Roncalli claimed to be acquainted with both Sosa

brothers and Santana.

Roncalli never placed Santana at the shooting, consistently naming

John and Amadi Sosa as the accomplices. This likely contributed to the

prosecutions agreement to sever Santana from the trial of Leiva and Sosa.

Roncalli was the only witness to place Amadi at the scene. Amadi Sosa’s

defense was misidentification.

At the close of the evidence, the judge directed a verdict in

Petitioner’s favor of armed assault with intent to murder. a25. The jury

convicted Petitioner of first degree murder on both felony-murder and

deliberately premeditated theories, armed assault with intent to rob and

unlawful possession of ammunition, each as a joint venturer. It acquitted

him of armed robbery.

Following a timely notice of appeal, Petitioner’s direct appeal was

heard by the Supreme Judicial Court, which affirmed each of his

convictions except unlawful possession of ammunition, which it reversed

and remanded for a new trial. Commonwealth v. Sosa, 493 Mass 104, 223

N.E.3d 5 (2023). Petitioner’s timely motion for reconsideration or

modification was denied, as was his motion for a new trial. a21-a22.

A. The First Question This Petition Presents Is Whether The

Trial Judge’s Order Implementing The Perjury Protocol Violated

Petitioner’s Rights To A Trial Free From The Knowing Use By

State Authorities Of Perjured Testimony, And To Confront And

Cross Examine The Perjuring Witness, Leiva, Such That Relief

From Prejudicial Joinder Was Constitutionally Required.

1. Presentation of Petitioner’s Federal Perjury And

Confrontation Claims To The State Courts.

a. Trial Court Motions For Relief From Prejudicial Joinder.

Petitioner’s core claim of judicial error in the implementation of the

Rule 3.3(e) protocol is two-fold. First, the judge’s decision to implement

the Rule 3.3(e) protocol interjected perjury into Petitioner’s trial,

violating Petitioner’s due process right to a trial free from the knowing use

of perjury by state authorities and his right to cross-examine Leiva about

this arrangement and its impact on his credibility. This judicial order

barred cross-examining Leiva about the Rule 3.3(e) protocol and how it

might affect his credibility. It authorized the prosecutor to exploit Leiva’s

perjury. Second, given the Rule 3.3(e) order, because only severance could

protect Petitioner’s federal rights, relief from prejudicial joinder was

constitutionally required.

These claims were properly and timely presented to the trial court

by Petitioner’s motions for relief from prejudicial joinder, made promptly

after the trial judge issued the Rule 3.3(e) order and repeated after Leiva

finished testifying. a39, a40.

Under Massachusetts law, Rule 22 of the Rules of Criminal

-9-

Procedure specifies the actions required to preserve an issue for appellate

review. Rules of procedure have the force of statutory law. Commonwealth

v. Yasin, 483 Mass 3438, 350, 1382 N.E.3d 531 (2019). Rule 22 provides, in

pertinent parts:

[I]t is sufficient that a party, at the time of the ruling or

order of the court is made or sought, makes known to the court

the action which he desires the court to take or his objection to

the action of the court(.)

Massachusetts Rules of Criminal Procedure, Rule 22 [cleaned up]. Either

an articulated objection or a request for a specific remedial action serves

to preserve an issue for appellate review under this rule. Commonwealth

v. Baseler, 419 Mass 500, 514 n. 9, 645 N.E.2d 1179 (1995); Toci v. Toct,

490 Mass 1, 8-9, 189 N.E.3d 241 (2022).

The proper timing of a motion for relief from prejudicial joinder is

specified in Commonwealth v. Moran:

| Judicial economy] considerations must yield at some point to

the rights of the accused. The point is reached when the

prejudice resulting from a joint trial is so compelling that it

prevents a defendant from obtaining a fair trial. In such

circumstances, and upon the making of a timely motion,

failure to sever constitutes an abuse of discretion.

387 Mass 644, 659, 442 N.E.2d 399, 407 (1982) [The risk that perjury by

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a codefendent will be introduced is prejudice requiring severance: “The

Commonwealth’s use of [perjured] testimony by a codefendant is

fundamentally unfair and does not serve the public’s interest in justice” Jd,

at 408].

Petitioner’s motions for relief from prejudicial joinder fully satisfied

Rule 22 in preserving Petitioner’s claims of judicial error in implementing

Rule 3.3(e) in the trial court.

2. Presentation In The Supreme Judicial Court.

Petitioner asserted that the trial judge erred in implementing Rule

3.3(e) in his joint trial with Leiva, which encompassed enabling Leiva to

perjure his testimony, authorizing the prosecutor to make unlimited use

of Leiva’s perjury, and barred Petitioner from cross-examining Leiva

about testifying under the perjury protocol, and in denying him relief from

prejudicial joinder, which was the only remedy available at that time. The

SJC rewrote that claim as asserting that prosecutorial misconduct in

knowingly using Leiva’s perjury, or allowing Leiva’s perjury to go

uncorrected, constitutionally required severance. 493 Mass at 109-110, a5.

The court pointed out that Petitioner’s counsel never argued in the trial

-11-

court that severance should be granted because of Leiva’s false testimony.

Id., at n. 5.

Nevertheless, the SJC ruled on the merits of the claims it identified

as defaulted, concluding: “Accordingly, because the prosecutor did not

knowingly use, or knowingly fail to correct, false testimony from Leiva, the

defendant’s due process rights were not violated.” 493 Mass at 111, a6

[emphasis added]. This is a determination of federal constitutional law

that is part of the court’s analysis and decision. Because the state court

ruled on the merits of the purportedly waived claim, any waiver is not

independent of federal law:

[W]hen resolution of the state procedural law question depends

on a federal constitutional ruling, the state-law prong is not

independent of federal law, and our jurisdiction is not

precluded.

Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

B. REASONS FOR GRANTING THE WRIT ON QUESTION ONE

1. On Direct Appellate Review The Supreme Judicial Court

Failed To Apply Controlling Federal Precedents As Required By

The Supremacy Clause.

Petitioner filed a timely notice of appeal. By statute this entitled him

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to review of his entire case. M.G.L. c. 278, §33E.° Under the Supremacy

Clause, Petitioner was entitled to have the Supreme Judicial Court

adjudicate each of the federal constitutional claims properly presented to

that Court. Arizona v. Evans, 514 U.S. 1, 9-10 (1995)[“State courts, in

appropriate cases, are not merely free to — they are bound to — interpret

the United States Constitution. In doing so, they are not free from the

final authority of this Court”].

On direct review, the Supreme Judicial Court failed to acknowledge

or adjudicate Sosa’s claim that judicial action — the trial judge’s Rule

3.3(e) order — violated Sosa’s due process right to a trial free from the

6

Section 33E, as interpreted by this Court, creates a “uniquely broad” and

“thorough form of review,” Commonwealth v. Gunter, 459 Mass 480, 486,

945 N.E.2d 386 (2011) [emphasis added], while imposing a demanding

obligation on the Court in adjudicating appeals of first degree murder

convictions, consequent to the “infamy of the crime and the severity of its

consequences.” Dickerson v. Attorney General, 396 Mass 740, 7438, 488

N.E.2d 757 (1986)[“uniquely thorough”]. “Plenary review means that in

direct appeals that are subject to §33E, the Court is required to review the

entire case on the law and the facts, which includes reading the entire

trial record.” Commonwealth v. Billingslea, 484 Mass 606, 617, 143 N.E.3d

425 (2020). It includes review of preserved issues “according to their

constitutional or common law standard.” Commonwealth v. Miranda, 492

Mass 3801, 305, 211 N.E. 3d 54 (2023)[emphasis added].

-13-

knowing use of perjury by state authorities.’ The state court deliberately

considered only prosecutorial actions that Petitioner had not identified as

constitutional delicts.

The trial judge’s order constituted state action. See, Cuyler v.

Sullivan, 446 U.S. 335, 348, 1008.Ct. 1708, 64 L.Ed.2d 3338 (1980) [judicial

actions violating defendant’s right to counsel “imputed to the state”] and

McCoy v. Louisiana, 584 U.S. 414, 426-427, 1388 S.Ct. 1500, 200 L.Ed.2d

821 (2018)[“the violation of McCoy’s protected autonomy right was

complete when the trial court allowed counsel to usurp control of an issue

within McCoy’s sole perogative”]. The Commonwealth conceded that the

vast majority of Leiva’s testimony was false [Commonwealth’s Brief, 41,

43] Petitioner asserted that, because Leiva’s specific falsehoods cannot be

identified in the record, the materiality of his perjury cannot be assessed,

so the error is structural. See, Weaver v. Massachusetts, 582 U.S. 286, 295-

296 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017) [“an error has been deemed

7

Petitioner filed a timely motion for reconsideration arguing that the SJC’s

failure violated his rights to due process and to counsel, and renewed that

claim in a supplemental motion for new trial that was part of his direct

appeal. a21. The SJC denied reconsideration and the supplemental motion

for new trial in unexplained docket entries. a22.

-14-

structural if the effects of the error are simply too hard to measure’;

McCoy v. Louisiana, 584 U.S. at 427-428.

The SJC concluded that, because the prosecutor did not put Leiva on

the stand, he “did not affirmatively present false testimony.” Sosa, 493

Mass at 110, a5. But 40 of the 46 pages of Sosa’s testimony recorded the

prosecutor's cross-examination, aggressively eliciting testimony that he

considered favorable enough to use in his summation.® Known perjury

elicited in a prosecutor’s cross-examination is perjury for due process

purposes.

The Supreme Judicial Court did not adjudicate Petitioner’s claim

that, with this trial court authorization, the prosecutor violated due

8

“Thus, when a proponent produces a witness, the opposing

counsel may cross-examine the witness as to all aspects of the

case, whether or not a particular aspect was elicited during

direct examination. This rule applies to the criminal defendant

who chooses to testify in his own behalf: he thereby renders

himself subject to cross-examination on all facts relevant to

the crime. Under Massachusetts practice, a party may put in

its own affirmative case on cross-examination of the opposing

party’s witness, regardless of whether the matters were raised

on direct.”

Brodin & Avery, Handbook of Massachusetts Evidence, §6.7, at 356-357

(2017).

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process by exploiting Leiva’s known perjury to bolster the prosecution’s

case against him, as authorized by the judge.

2. Petitioner’s Claim That Judicial Implementation Of The

Perjury Protocol Violated His Due Process Right To A Trial Free

Of Knowing Use Of Perjury By State Officials Is An Issue Of First

Impression That Marks Invidious Constitutional Errors

The Supreme Judicial Court’s ruling in Sosa presents an issue of

first impression that cannot be reconciled with long-standing

constitutional precedents of this Court. While the use of a perjury

protocol like Rule 3.3(e) is fairly common’, only Massachusetts has

resorted to tolerate defendant perjury in joint trials. As the ruling in

Petitioner’s appeal demonstrates, it is a short but constitutionally

devastating step to casually interject perjury into the trial of a

codefendant who has not asked for it.

The Supreme Judicial Court’s Sosa decision demonstrates that

9

See, e.g., Shockley v. State, 565 A.2d 13873, 1879 (Del. 1989);

Commonwealth v. Mascitti, 368 Pa. Super 454, 534 A2d 524, 528-529 (Pa.

Super. 1987); State v. Fosnight, 235 Kansas 52, 679 P2d 174, 180 (1984);

People v. Bartree, 208 Ill. App. 3d 105, 108, 566 N.E.2d 855, cert. denied,

502 U.S. 1014, 116 L.Ed2d 752, 112 S.Ct. 661 (1991); People v. Salquerro,

107 Misc. 155, 158-159, 483 NYS2d 711 (1980); Butler v. United States,

414 A2d 844, 850 (D.C.Cir. 1980); United States v. Long, 857 F2d 436, 466

& n. 7 (8 Cir. 1988).

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indispensable federal due process and confrontation principles leave no

room for this innovation; as this Court said in Giles v. California:

“abridging the constitutional rights of criminal defendants is not in the

State’s arsenal” of solutions to difficult criminal justice problems. 554 U.S.

353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). This Court should step

in and eliminate the dangerous precedent the Massachusetts courts have

set in Petitioner’s case.

Federal due process principles guarantee every criminal defendant

the right to a trial free from the knowing use by state authorities of

evidence that they knew or should have known to be false. Napue v.

Iilinois, 360 U.S. 264, 269, 79S.Ct. 1178, 3 L.Ed.2d 1217 (1959); see also,

Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 31 L.ed.2d 104

(1972)[falsity known or should have been known]; Alcorta v. Texas, 355

U.S. 28, 30-32, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) [deliberately misleading

testimony]. But, the trial judge expressly authorized the prosecutor to

make unlimited use of Leiva’s perjury, a clear violation of his

constitutional duties. The Supremacy Clause prohibits granting a trial

judge the discretionary authority to permit a prosecutor to violate the due

process prohibition against exploiting perjured testimony. Arizona v.

Evans, 514 U.S. 1, 9-10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).

Sosa was entitled to cross examine Leiva’s testimony to test its

reliability. Crawford v. Washington, 541 U.S. 36, 69, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004)[“the only indicium of reliability sufficient to satisfy

constitutional demands is the one the Constitution actually prescribes:

confrontation” ]; see also, Davis v. Alaska, 415 U.S. 308, 318-320, 948.Ct.

1105, 39 Led.2d 347 (1974); Delaware v. Van Arsdall, 475 U.S. 673, 680,

1068.Ct. 1481, 89 L.Ed.2d 674 (1986). But to protect Leiva’s misconceived

rights’, the Rule 3.3(e) protocol was used to strip Petitioner of his

principal protections against the use of known perjury to convict him.

Cross examination is the best engine for protect a criminal

defendant’s right to have the judgments of their jury “rest on truth.”

“Perjured testimony ‘is at war with justice’ because it can cause a court to

render a ‘judgment not resting on truth.” United States v. Alvarez, 567

10

This Court has held that no criminal defendant has a federal

constitutional right to perjure his testimony, nor to have the assistance of

counsel in doing so. Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 998, 89

L. Ed.2d 123 (1986).

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U.S. 709, 720-721, 182 S.Ct. 2537, 183 L.Ed2d 574 (2012). The SJC

acknowledged in Leiva that implementing Rule 3.3(e) in a single

defendant trial “creates the risk that judgment will be rendered on false

premises” and that “rigorous cross-examination” to assist the jury in

discerning the truth. Commonwealth v. Leiva, 484 Mass 766, 784 n. 19 146

NE38d 1093 (2022). That was in Petitioner’s trial, where he was completely

deprived of that safeguard, now on the facile supposition that, as to him,

cross-examination on this point was not even material. Sosa, 493 Mass at

112, a7.

The SJC’s only rationale for approving the complete bar on

Petitioner’s right to confront Leiva about testifying under Rule 3.3(e)

auspices is that the state court could not “accept the notion” that the

protocol might encourage perjury by conferring practical impunity on the

witness. 493 Mass at 112, a7. This hypothesis of impossibility was

substituted for constitutional analysis. It is not credible to posit that, had

the jury known the circumstances and conditions under which Leiva

testified, that knowledge would have had no effect on their assessment of

his credibility.

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