Petition for Writ of Certiorari — Roberto Lopez-Ortiz, Petitioner v. Massachusetts

No. _________

In the Supreme Court of the United States

_______________

ROBERTO LOPEZ-ORTIZ,

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

_______________

Petition for Writ of Certiorari

to the Appeals Court of the Commonwealth of Massachusetts

_______________

DAVID NATHANSON

Counsel of Record

MELISSA RAMOS

Jellison & Nathanson, LLP

55 Union Street, 4th Floor

Boston, MA 02108

(617) 248-1806

dnathanson@jndefense.com

DATED: DECEMBER 22, 2025

i

QUESTION PRESENTED

Roberto Lopez-Ortiz is serving life in prison for an offense that no longer

exists. He fully preserved his challenge to second-degree felony-murder at

trial and, while his direct appeal was pending, the state supreme court

abolished that offense for the same reasons that he asserted.

Consistent with due process, must this substantive change to the offense

apply to him on direct review?

ii

PETITION FOR WRIT OF CERTIORARI

Petitioner Roberto Lopez-Ortiz respectfully prays that this Court issue

a writ of certiorari to review the judgment below.

LIST OF ALL PARTIES

The caption of the case contains the names of all the parties.

LIST OF PROCEEDINGS

Supreme Court of the United States:

Lopez-Ortiz v. Massachusetts, No. 25A220 (August 26, 2025) (granting

extension of time to file petition)

Supreme Judicial Court of Massachusetts:

Commonwealth v. Lopez-Ortiz, No. FAR-30230 (July 25, 2025) (denial of

motion to reconsider denial of further appellate review)

Commonwealth v. Lopez-Ortiz, No. FAR-30230 (June 6, 2025) (further

appellate review denied)

Massachusetts Appeals Court:

Commonwealth v. Lopez-Ortiz, No. 2023-P-0295 (February 12, 2025)

(conviction affirmed)

Superior Court for Middlesex County:

Commonwealth v. Lopez-Ortiz, No. 1481CR00430 (June 23, 2020) (renewed

motion to reduce verdict denied)

Commonwealth v. Lopez-Ortiz, No. 1481CR00430 (May 4, 2017) (motion to

reduce verdict denied)

Commonwealth v. Lopez-Ortiz, No. 1481CR00430 (March 22, 2017)

(sentencing)

Commonwealth v. Lopez-Ortiz, No. 1481CR00430 (June 23, 2020) (jury

verdict)

iii

TABLE OF CONTENTS

Question Presented .................................................................................................... i

Petition for Writ of Certiorari .................................................................................ii

List of All Parties........................................................................................................ii

List of Proceedings ....................................................................................................ii

Table of Contents ..................................................................................................... iii

Table of Authorities ................................................................................................... v

Prior Opinions and Orders ..................................................................................... xi

Basis for Jurisdiction ................................................................................................ 1

Constitutional and Statutory Provisions.............................................................. 1

Statement of the Case ............................................................................................... 2

Facts at trial ........................................................................................................ 2

Abolition of second-degree felony-murder during direct appeal ....................... 5

Lopez-Ortiz properly raised the issue ................................................................ 6

Reasons for Allowance of the Writ ......................................................................... 7

I.

II.

Substantive changes to an offense are retroactive. While his

direct appeal was pending, Massachusetts narrowed the

elements of first-degree felony murder and abolished

second-degree felony-murder of which Lopez-Ortiz was

convicted. That is a substantive change in the offense and it

must apply to Lopez-Ortiz. ....................................................................... 8

Substantive changes to an offense on direct review are

retroactive even if they result from a common law decision. ........ 13

iv

III.

IV.

Massachusetts established a system of Griffith-equivalent

limited retroactivity for all preserved errors on direct

review. But then it refused to review Lopez-Ortiz’s

preserved claim on direct review by relying on a newlyinvented, standardless rule of ad hoc selective prospectivity.

Due process entitled Lopez-Ortiz to review of his preserved

claim. ........................................................................................................... 16

This case is a good candidate for certiorari review. It

cleanly presents the issues, both factually and legally.

Lopez-Ortiz preserved the issue. Lopez-Ortiz’s conviction

stands or falls on the issue presented. The issue presented

involves issues left open in prior decisions of this Court,

leaving the lower courts split. ............................................................... 23

Conclusion ................................................................................................................. 27

Index to the Appendix

Juror letters ................................................................................................................. 1a

Memorandum of Decision and Order on Defendant’s Renewed Motion to

Reduce the Verdict or for a New Trial by Middlesex Superior Court (June 23,

2020) ............................................................................................................................. 7a

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 265 (2025) ............................... 17a

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 1114 (2025) (unpublished) ..... 36a

Commonwealth v. Lopez-Ortiz, 496 Mass. 1103 (2025) (table) ................................ 39a

Massachusetts Supreme Judicial Court Docket No. FAR-30230 (July 25,

2025) ........................................................................................................................... 40a

v

TABLE OF AUTHORITIES

Cases

Bell v. State of Md., 378 U.S. 226 (1964) .................................................................... 15

Bouie v. City of Columbia, 378 U.S. 347 (1964) .......................................................... 17

Boyde v. California, 494 U.S. 370 (1990) .................................................................... 17

Brinkerhoff-Faris Tr. & Sav. Co. v. Hill, 281 U.S. 673 (1930) ................................... 16

Bunkley v. Fla., 538 U.S. 835 (2003) ................................... 9, 10, 11, 12, 13, 23, 24, 25

Bunkley v. State, 539 So. 2d 477 (Fla. Dist. Ct. App. 1989) ....................................... 11

Bunkley v. State, 833 So. 2d 739 (Fla. 2002) .............................................................. 11

Bunkley v. State, 882 So. 2d 890 (Fla. 2004) ........................................................ 23, 24

Caspari v. Bohlen, 510 U.S. 383 (1994) .................................................................. 9, 11

Chao v. State, 931 A.2d 1000 (Del. 2007) .................................................................... 25

Commonwealth v. Adjutant, 443 Mass. 649 (2005) .................................................... 18

Commonwealth v. Ashford, 486 Mass. 450 (2020) ...................................................... 24

Commonwealth v. Augustine, 467 Mass. 230 (2014) ............................................ 19, 20

Commonwealth v. Bastos, 103 Mass. App. Ct. 376 (2023) ......................................... 24

Commonwealth v. Bell, 460 Mass. 294 (2011) .............................................................. 5

Commonwealth v. Bellamy, 391 Mass. 511 (1984) ..................................................... 19

Commonwealth v. Bourgeois, 391 Mass. 869 (1984) .................................................. 18

Commonwealth v. Brown, 477 Mass. 805 (2017) .................. 5, 8, 13, 15, 16, 24, 25, 26

Commonwealth v. Castillo, 485 Mass. 852 (2020) ................................................ 21, 24

Commonwealth v. Chin, 97 Mass. App. Ct. 188 (2020) ................................................ 5

Commonwealth v. Concepcion, 487 Mass. 77 (2021) .................................................. 24

vi

Commonwealth v. Dahl, 430 Mass. 813 (2000) .......................................................... 19

Commonwealth v. Federico, 425 Mass. 844 (1997) ..................................................... 20

Commonwealth v. Figueroa, 413 Mass. 193 (1992) .................................................... 20

Commonwealth v. Fredette, 480 Mass. 75 (2018) ..................................................... 5, 8

Commonwealth v. French, 462 Mass. 41 (2012) ......................................................... 19

Commonwealth v. Hernandez, 481 Mass. 582 (2019) ........................................... 18, 21

Commonwealth v. Hunter, 416 Mass. 831 (1994) ....................................................... 19

Commonwealth v. Johnson, 435 Mass. 113 (2001) ....................................................... 5

Commonwealth v. Kelly, 417 Mass. 266 (1994) .......................................................... 18

Commonwealth v. Kozec, 399 Mass. 514 (1987) ......................................................... 18

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 265 (2025) ................................... 3

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 1114 (2025) ................................. 1

Commonwealth v. Martin, 484 Mass. 634 (2020) ............. 11, 12, 13, 15, 21, 24, 25, 26

Commonwealth v. Matchett, 386 Mass. 492 (1982 ) ................................. 15, 18, 19, 21

Commonwealth v. Miranda, 492 Mass. 301 (2023) ...................................................... 5

Commonwealth v. Moran, 387 Mass. 644 (1982) ........................................................ 19

Commonwealth v. Odgren, 483 Mass. 41 (2019) ........................................................ 20

Commonwealth v. Parham, 390 Mass. 833 (1984) ..................................................... 19

Commonwealth v. Pidge, 400 Mass. 350 (1987) ......................................................... 20

Commonwealth v. Rego, 360 Mass. 385 (1971) ........................................................... 15

Commonwealth v. Robbins, 422 Mass. 305 (1996) ..................................................... 19

Commonwealth v. Shepherd, 493 Mass. 512 (2024) ............................................... 5, 13

vii

Commonwealth v. Silva, 388 Mass. 495 (1983) .......................................................... 19

Commonwealth v. Souza, 492 Mass. 615 (2023)......................................................... 21

Commonwealth v. Tyler, 493 Mass. 752 (2024) .......................................................... 13

Commonwealth v. Waweru, 480 Mass. 173 (2018) ..................................................... 20

Commonwealth v. Wolfe, 478 Mass. 142 (2017).................................................... 18, 20

Cooper v. Aaron, 358 U.S. 1 (1958) ............................................................................. 22

Danforth v. Minnesota, 552 U.S. 264 (2008) ............................................................... 22

De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) ............................................ 14

Erlinger v. United States, 602 U.S. 821 (2024) ........................................................... 15

Evitts v. Lucey, 469 U.S. 387 (1985) ............................................................................ 17

Fed. Nat’l Mort. Ass’n v. Marroquin, 477 Mass. 82 (2017)......................................... 20

Fiore v. White, 528 U.S. 23 (1999) ........................................................................... 9, 10

Fiore v. White, 531 U.S. 225 (2001) ................................................................... 9, 10, 23

Francis v. Franklin, 471 U.S. 307 (2001).............................................................. 16, 17

Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932) .... 21, 22

Griffin v. Illinois, 351 U.S. 12 (1956) .......................................................................... 17

Griffith v. Kentucky, 479 U.S. 314 (1987) ................................. 9, 10, 14, 17, 18, 21, 22

Hamm v. City of Rock Hill, 379 U.S. 306 (1964) ........................................................ 15

Harper v. Virginia Dep’t of Tax’n, 509 U.S. 86 (1993) ................................................ 17

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ................................................... 16, 17

Howard v. State, 236 N.E.3d 735 (Ind. 2024) ............................................................. 25

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................... 12

viii

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) ..................... 17, 21, 26

Kahler v. Kansas, 589 U.S. 271 (2020)........................................................................ 15

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .................................................... 14

Linkletter v. Walker, 381 U.S. 618 (1965) ................................................................... 14

Lonchar v. Thomas, 517 U.S. 314 (1996) .................................................................... 17

Marbury v. Madison, 1 Cranch 137 (1803) ................................................................. 13

Montgomery v. Louisiana, 577 U.S. 190 (2016) ............................................................ 8

Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014) ............................................ 12, 13, 25

Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) ....................................... 23

Nguyen v. State, 878 N.W.2d 744 (Iowa 2016)............................................................ 25

Nika v. State, 124 Nev. 1272 (2008) ............................................................................ 25

Pailin v. Vose, 603 A.2d 738 (R.I. 1992) ...................................................................... 25

People v. Douglas, 205 A.D.2d 280 (N.Y. App. Div. 1994) .......................................... 24

People v. Hill, 648 N.E.2d 455 (N.Y. 1995) ................................................................. 24

Powell v. Nevada, 511 U.S. 79 (1994) ......................................................................... 26

Richmond v. State, 118 Nev. 924 (2002) ..................................................................... 25

Rochin v. California, 342 U.S. 165 (1952) .................................................................. 17

Rudolfo v. Steward, 533 P.3d 728 (N.M. 2023) ........................................................... 25

Schriro v. Summerlin, 542 U.S. 348 (2004) .............................................................. 8, 9

Smith v. State, 598 So. 2d 1063 (Fla. 1992) .......................................................... 21, 25

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ............................ 22

State v. Gangwer, 168 W.Va. 190 (1981)..................................................................... 25

ix

State v. Gomez, 320 Kan. 3 (2025)............................................................................... 25

State v. Guard, 371 P.3d 1 (Utah 2015) ...................................................................... 25

State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) ........................................................ 25

State v. Hudson, 331 N.C. 122 (1992) ......................................................................... 24

State v. Ruiz, 955 So.2d 81 (La. 2007) ........................................................................ 25

State v. Tierney, 150 N.H. 339 (2003) ......................................................................... 25

State v. Tuttle, 460 N.W.2d 157 (S.D. 1990) ............................................................... 25

Taylor v. State, 10 S.W.3d 673 (Tex. Crim. App. 2000) .............................................. 24

Teague v. Lane, 489 U.S. 288 (1989) ........................................................................... 22

United States v. Chambers, 291 U.S. 217 (1934) .................................................. 14, 15

United States v. Johnson, 457 U.S. 537 (1982)........................................................... 14

United States v. Schooner Peggy, 1 Cranch 103 (1801) .............................................. 14

United States v. United Mine Workers of Am., 330 U.S. 258 (1947) .......................... 22

Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538 (1941) .................................. 15

Wainwright v. Stone, 414 U.S. 21 (1973) ...................................................................... 9

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653 (1974) ............................ 15

Weaver v. Massachusetts, 582 U.S. 286 (2017) ........................................................... 18

Welch v. United States, 578 U.S. 120 (2016) ..................................................... 9, 10, 17

Yeaton v. United States, 9 U.S. (5 Cranch) 281 (1809) ............................................... 14

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

28 U.S.C. § 2254(d)(1) ............................................................................................ 12, 25

x

M.G.L. c 265, § 1 ........................................................................................................ 1, 2

M.G.L. c. 265, § 18(b) ..................................................................................................... 2

M.G.L. c. 265, § 18C ....................................................................................................... 2

M.G.L. c. 265, § 20 ......................................................................................................... 2

M.G.L. c. 279, § 24 ......................................................................................................... 4

M.G.L. c. 4, § 6 ............................................................................................................. 15

Rules

Mass. R. App. P. 8 .......................................................................................................... 6

Other Authorities

1 M. Hale, Pleas of the Crown 291 (G. Wilson ed. 1778)............................................ 14

Andrew I. Haddad, Cruel Timing: Retroactive Application of State Criminal

Procedural Rules to Direct Appeals, 116 Colum. L. Rev. 1259 (2016).................... 23

Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial

Decisions, 26 Harv. J.L. & Pub. Pol’y 811 (2003) .................................................... 23

Commonwealth v. Brown, No. SJC-11669, Appellant Brown Brief........................... 26

Commonwealth v. Martin, No. SJC-08768, Appellant Martin Brief ......................... 12

The Federalist No. 78 (Alexander Hamilton) (Modern Library ed., 1938) ................ 17

W. Hawkins, Pleas of the Crown 73 (8th ed. J. Curwood 1824) ................................ 14

xi

PRIOR OPINIONS AND ORDERS IN THIS CASE

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 265 (2025).

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 1114 (2025) (unpublished).

Commonwealth v. Lopez-Ortiz, 496 Mass. 1103 (2025) (table).

1

BASIS FOR JURISDICTION

The Massachusetts Appeals Court affirmed Lopez-Ortiz’s conviction on

February 12, 2025 and he timely sought discretionary review. The Supreme Judicial

Court of Massachusetts (SJC) denied review on June 6, 2025 and, upon a timely

motion to reconsider, denied review again on July 25, 2025. App.39a–40a. Justice

Jackson granted an extension of time to file a petition for a writ of certiorari until

December 22, 2025.

This Court has jurisdiction under 28 U.S.C. § 1257(a) because the judgment

affirming Petitioner’s convictions was “rendered by the highest court of a State in

which a decision could be had.” Lopez-Ortiz plainly presented his claim that due

process and equal protection required that the rule abolishing second-degree felonymurder be applied to his preserved claim on direct appeal. The Massachusetts

courts rejected it. Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 1114, *2

(2025).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

1. The Fifth Amendment provides in pertinent part: “No person shall . . . be

deprived of life, liberty or property without due process of law.”

2. The Fourteenth Amendment provides in pertinent part: “No State shall . . .

deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.”

3. M.G.L. c. 265, § 1 provides in pertinent part:

Murder committed with deliberately premeditated malice aforethought, or

with extreme atrocity or cruelty, or in the commission or attempted

2

commission of a crime punishable with death or imprisonment for life, is

murder in the first degree. Murder which does not appear to be in the first

degree is murder in the second degree. … The degree of murder shall be

found by the jury.

CONCISE STATEMENT OF THE CASE

Facts at trial

In 2016, petitioner Lopez-Ortiz was indicted for first-degree murder, armed

home invasion and armed assault with intent to rob. App.26a.1 On March 17, 2017,

the jury acquitted him of each of those charges. Instead, they convicted him of only

lesser offenses: second-degree felony-murder with unarmed assault with intent to

rob as the predicate offense.2 App.26a. He was sentenced to life in prison, but with

the possibility of parole after fifteen years. App.8a.

Lopez-Ortiz timely appealed. Lopez-Ortiz sets out the facts as recited by the

Appeals Court with any additions noted.3

The evidence at trial showed that on December 18, 2013, the

defendant, Roberto Lopez-Ortiz, and three others, including Jonathan

Rivera and Donte Okowuga, decided to commit a robbery. Okowuga

had two guns, one of which he gave to Rivera prior to the attempted

robbery. Testimony differed on whether Rivera thereafter gave the gun

to the defendant.

The four men drove to the victim’s building and entered it,

encountering the victim in the entrance to his apartment. The men

entered the apartment, at which time Okowuga pointed a gun at the

1 M.G.L. c 265, § 1, M.G.L. c. 265, § 18C, and M.G.L. c. 265, § 18(b), respectively. Record citations will

follow this format: trial transcript “Tr. [volume]:[page]”; final pretrial conference transcript “Tr.

1/24/17:[page]”; Appendix to this petition “App.[page]a.”

2 Tr.12:25-26; M.G.L. c. 265, § 20. His conviction for unarmed assault with intent to rob was

dismissed as duplicative. App.36a.

3 As noted, the Appeals Court issued a published and an unpublished opinion. Only the Appeals

Court’s published opinion recited the facts.

3

victim while the other men, including the defendant, attacked him.

The victim managed to get away and ran out of the apartment.

Three of the men thereafter left the building. The victim returned to

the building, where the fourth man, who had remained just outside the

apartment, shot and killed the victim. The defendant testified that

Okowuga was the assailant who stayed behind at the victim’s

apartment, whereas Rivera and Okowuga testified that the defendant

had remained behind.

[In a footnote, the court stated that] … the jury convicted the

defendant of felony-murder in the second degree, with the predicate

felony being unarmed assault with intent to rob. They acquitted the

defendant of murder in the first degree, armed home invasion, and

armed assault with intent to rob.

Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 265, 266 & n.2 (2025).

The dissent commented on the majority’s recitation of the facts as follows:

[T]he facts of the crime of which the defendant was convicted are

described in part in the body of the majority opinion in a way that may

cast him in a false light. To the extent that any of the facts are

relevant, the jury in this case concluded that the defendant was not

armed and was not the shooter. He was acquitted of murder in the first

degree, armed home invasion, and armed assault with intent to rob. He

was convicted, rather, of unarmed assault with intent to rob, and, with

that as the predicate crime, felony-murder in the second degree, a judgemade crime “of questionable origin,” that “eroded the relation between

criminal liability and moral culpability,” and that ceased to exist in

this Commonwealth 187 days after the defendant’s conviction, but for

which he was sentenced to, and is now serving a sentence of, life

imprisonment (quotations and citations omitted).

Id. at 283 (Rubin, J. dissenting) (emphasis in original).

Indeed, the basis for the acquittals is Lopez-Ortiz’s testimony, which is

omitted from the published opinion’s recitation. In summary, Lopez-Ortiz testified

that he was not the shooter. Donte Okowuga was the shooter. Tr.8:173. Lopez-Ortiz

was not aware beforehand that anyone had a gun. Tr.8:153–154, 158–159, 207. He

4

verbally objected, then tried and failed to physically stop Okowuga from employing

a firearm. Tr.8:167–169. Tillis, the fourth man, pushed Lopez-Ortiz and cut him

with a knife for intervening, after which Lopez-Ortiz announced “I’m out, I’m

leaving” and ran away. Tr.8:167–169, 199–200. When two of the other participants

fled, the victim, “Pedro,” successfully chased them out of the building. Tr.8:170–172;

Tr.4:10; see Tr.4:123, 125; Tr.7:94, 96. But Pedro did not flee the scene entirely. He

went back inside. Okowuga then shot him. Id.; Tr.8:173.

As noted, the jury appeared to accept Lopez-Ortiz’s testimony because they

acquitted him of first-degree murder on any theory and they acquitted him of any

offense that required proof that he was armed or that he knew others were armed.

Tr.12:25–27; App.26a.

The jurors focused on whether Lopez-Ortiz withdrew from the crime. See

Tr.11:40. They asked whether Lopez-Ortiz was “automatically” responsible for acts

that took place after he fled. Tr.12:14–15. The jurors’ questions reveal their focus on

felony-murder.

Significantly, several jurors wrote to the judge asking for the minimum

sentence, suggesting that their concerns paralleled those given by the SJC for

abolishing the felony-murder rule: punishment is disproportionate to moral

culpability.4 Tr.13:4, 12–14, 16; see App.7a.

4 Because the crime occurred after August 2, 2012, Lopez-Ortiz could have been sentenced to a term

of up to 25 years to life in prison. Tr.13:3–4; M.G.L. c. 279, § 24; St.2012, c. 192, § 46. The judge

imposed the minimum sentence of 15 years to life.

5

Abolition of second-degree felony-murder during direct appeal

Six months after Lopez-Ortiz’s trial, while his direct appeal was pending, the

SJC held that the underlying felony should not substitute for malice.

Commonwealth v. Brown, 477 Mass. 805, 807–808, 825 (2017) (opinion of Gants,

C.J.), cert. denied, 586 U.S. 826 (2018).5 Brown held that the prosecution must

always prove malice for any murder conviction and that the prosecution could only

prove first-degree felony-murder by proving malice and then proving that the killing

was committed in the course of a felony punishable by life imprisonment. Id.

Central to Lopez-Ortiz’s case, the SJC went further and held that its ruling

necessarily “entirely eliminate[d] the concept of ‘felony-murder in the second

degree,’” the offense for which Lopez-Ortiz was convicted. Id. at 832 n.4;

Commonwealth v. Fredette, 480 Mass. 75, 77 n.4 (2018).6 Lopez-Ortiz’s trial jurors

convicted him of second-degree felony-murder without being required to find that

the prosecution proved malice. Tr.9:64.7

5 The concurrence of Chief Justice Gants is the majority opinion of the SJC as to its change to the

felony-murder doctrine. Commonwealth v. Shepherd, 493 Mass. 512, 522 (2024). It will be cited as

such in this petition.

6 There are two reasons for this. First, a killing committed with malice but not committed in the

course of a life felony, not committed with deliberate mediation, and not committed with “extreme

atrocity or cruelty” was already second-degree murder. Commonwealth v. Johnson, 435 Mass. 113,

121 (2001); Commonwealth v. Miranda, 492 Mass. 301, 319 (2023). Second, under the former

doctrine, second-degree felony-murder convictions could rest only on non-life felonies.

Commonwealth v. Bell, 460 Mass. 294, 307 (2011). Brown required that any first-degree felonymurder predicate be a life felony. Brown, 477 Mass. at 832.

7 The elements of murder in the second degree are (1) an unlawful killing and (2) malice. Malice can

be established by proving: (1) the defendant intended to cause the victim's death; (2) the defendant

intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional

act which, in the circumstances known to the defendant, a reasonable person would have understood

created a plain and strong likelihood of death. See, e.g., Commonwealth v. Chin, 97 Mass. App. Ct.

188, 195 (2020).

6

Lopez-Ortiz explicitly but unsuccessfully argued in post-trial motions and in

his direct appeal that his trial objections to felony-murder were correct and that he

was entitled to relief. App.7a.

Massachusetts courts refused relief, pointing to Brown’s holding that its

change in the law was “prospective” only. App.37a. This petition followed.

Lopez-Ortiz properly raised the issue

There is no dispute that Lopez-Ortiz repeatedly preserved his challenge to

felony-murder and raised it at each stage of the proceedings. See, e.g.,

Tr.1/24/17:14–23; Tr.3:6–10; Tr.11:19.8

The parties agreed below that trial counsel objected that “it is

unconstitutional and unjust for the commission of a felony to substitute for malice .

. . and [the trial judge] ruled that his rights were saved.” Tr.8/3/22:6. Undersigned

counsel argued that Lopez-Ortiz was entitled to the benefit of the abolition of

second-degree felony-murder in a renewed motion for required finding of not guilty

on December 2, 2019. App.7a. The trial judge denied the motion. App.7a. LopezOrtiz timely appealed that decision. He squarely raised the issue again in his briefs

to the Massachusetts Appeals Court and in his application for further appellate

review. App.39a–40a.

8 The court reporter’s equipment malfunctioned during the felony-murder precharge. See Tr.3:14.

The parties later agreed, Mass. R. App. P. 8, that other objections preserved the issue regardless.

Tr.8/3/2022:6.

7

REASONS FOR ALLOWANCE OF THE WRIT

Summary

When a state entirely eliminates the offense of conviction while direct review

is pending, due process should afford relief to the vigilant defendant like LopezOrtiz who argued for the elimination of the offense at trial and raised it on direct

review and whose conviction is not yet final. Substantive changes to an offense are

retroactive. The common law as embodied in the Due Process Clause also makes

such changes retroactive. Abolition of offenses applies on direct review because

direct review is governed by the currently existing law. Massachusetts may not

invoke ad hoc prospectivity in order to refuse relief to defendants affected by such a

change. Indeed, at least where Massachusetts has established a system of limited

retroactivity on direct appeal for all errors, due process requires that it not change

the rules in the middle of direct review.

This case is an excellent vehicle for deciding the issue. Lopez-Ortiz doggedly

preserved the issues at trial and squarely raised them in his state appeal. Both the

facts of the trial and the procedural facts make the issue dispositive. Finally, the

case presents the Court with the opportunity to provide doctrinal clarity to the

lower courts, which are in a state of confusion.

8

I.

Substantive changes to an offense are retroactive. While his direct

appeal was pending, Massachusetts narrowed the elements of

first-degree felony murder and abolished second-degree felonymurder of which Lopez-Ortiz was convicted. That is a substantive

change in the offense and it must apply to Lopez-Ortiz.

Substantive changes to an offense are retroactive. Montgomery v. Louisiana,

577 U.S. 190, 208–209 (2016). “This includes decisions that narrow the scope of a

criminal statute by interpreting its terms.” Schriro v. Summerlin, 542 U.S. 348,

351–352 (2004). “Such rules apply retroactively because they necessarily carry a

significant risk that a defendant stands convicted of an act that the law does not

make criminal or faces a punishment that the law cannot impose upon him.” Id. at

352 (internal quotations omitted). So it is with Lopez-Ortiz, convicted of an offense

no longer extant.

Here, the Massachusetts Appeals Court flatly stated that Brown worked a

“substantive change in the law.” App.37a. Indeed, the SJC itself announced that

Brown “narrowed” the scope of liability for first-degree felony-murder. Brown, 477

Mass. at 807–808 (opinion of Gaziano, J.). But more importantly, the SJC

acknowledged that its decision “entirely eliminate[s] the concept of felony-murder in

the second degree.” Id. at 832 n.4 (citation and quotation marks omitted); Fredette,

480 Mass. at 77 n.4 (reiterating that Brown eliminated second-degree felonymurder). The change was substantive.

The SJC proclaimed that the change was one of “common law” but also that

its decision “limited [felony-murder] to its statutory role.” Brown, 477 Mass. at 825–

826. The reason for Massachusetts’ change to felony-murder is irrelevant to

9

whether the change is substantive. In both Bunkley v. Florida and Fiore v. White,

the state courts relied on decisional law interpreting the elements of a criminal

statute. Bunkley v. Fla., 538 U.S. 835, 840–842 (2003); Fiore v. White, 528 U.S. 23,

29 (1999) (Fiore I), S.C., Fiore v. White, 531 U.S. 225, 228–229 (2001) (Fiore II). In

Welch, the void for vagueness doctrine narrowed the reach of the statute. Welch v.

United States, 578 U.S. 120, 122 (2016).9 Each decision was substantive due to the

effect of the ruling, not its source. Id. at 130–131.

No “case from this Court treats statutory interpretation cases as a

special class of decisions that are substantive because they implement

the intent of Congress. Instead, decisions that interpret a statute are

substantive if and when they meet the normal criteria for a

substantive rule: when they ‘alte[r] the range of conduct or the class of

persons that the law punishes.’”

Welch, 578 U.S. at 134 (quoting Schriro, supra, at 353). The change is substantive

and is therefore applicable to Lopez-Ortiz on direct review.

The case for retroactivity in Lopez-Ortiz’s case is significantly stronger than

the cases discussed above because his conviction is not final. “A state conviction and

sentence become final for purposes of retroactivity analysis when the availability of

direct appeal to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed petition has been finally

denied.” Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (citing Griffith v. Kentucky, 479

9 Wainwright v. Stone does not control for at least three reasons. 414 U.S. 21, 23–24 (1973). First, it

appears to conflict with Welch in holding that a substantive change to an offense is not retroactive

where the change was brought about by a vagueness challenge. Id. Second, Stone was a habeas

corpus petition brought under the former Linkletter doctrine while the instant case is on direct

review. Third, if Stone settled the question, there would have been no reason to grant certiorari in

Fiore and Bunkley.

10

U.S. 314, 321, n.6 (1987)). Welch, Bunkley, and Fiore were all collateral challenges

brought after the convictions became final on direct appeal and the state’s interest

in finality was much stronger. Welch, 578 U.S. at 122; Bunkley, 538 U.S. at 838;

Fiore I, 528 U.S. at 25.

Indeed, the issue is not retroactivity, strictly speaking. Bunkley, 538 U.S. at

840; Fiore II, 531 U.S. at 226. On direct review, due process requires that LopezOrtiz’s conviction be evaluated under the elements of the offense at the time of

review. Bunkley, 538 U.S. at 840 (“proper question under Fiore is not whether the

law has changed” but what the law required “at the time [the] conviction became

final”). See Fiore II, 531 U.S. at 228–229 (same).

Fiore unmistakably fixed the relevant legal analysis to the date that the

conviction became final on direct review. To determine whether Fiore was entitled

to a substantive rule, this Court certified the question to the state court of whether

the substantive rule was the “correct interpretation of the law of Pennsylvania at

the date Fiore’s conviction became final.” Fiore I, 528 U.S. at 29 (emphasis added).

When the state court answered that it was the correct interpretation at the time the

defendant’s conviction became final, this Court again stated that the dispositive

issue was whether the state court’s “decision interpreting the statute not to apply to

conduct like Fiore’s was a new interpretation, or whether it was, instead, a correct

statement of the law when Fiore’s conviction became final.” Fiore II, 531 U.S. at 226

(emphasis added); see id. at 228.

11

After Fiore, this Court used inconsistent language in framing the inquiry in

Bunkley. That appears to have confused or misled the SJC.

Consistent with Fiore, the Bunkley opinion stated that the proper question

was whether the favorable interpretation of the elements of the crime was the law

“at the time his conviction became final.” Bunkley, 538 U.S. at 840. The Court then

remanded for the Florida Supreme Court to state what the law was at the time

Bunkley’s “conviction became final.” Id. at 842.

But Bunkley also used “the time Bunkley was convicted” or “the time he was

convicted” as a synonym for “the time conviction became final” five times, muddying

the waters. Id. at 838 n*, 841–842. This was clearly used as a synonym for the date

of finality because Bunkley states seven times that 1989 is the operative date for the

inquiry. Id. at 837, 840–842. “1989” can only refer to the conviction’s date of finality

after direct review because the date of Bunkley’s conviction was “April 23, 1987.”

Bunkley v. State, 833 So. 2d 739, 741 (Fla. 2002) (citation and quotation marks

omitted). Bunkley’s direct appeal was denied on February 17, 1989. Bunkley v.

State, 539 So. 2d 477 (Fla. Dist. Ct. App. 1989). He did not seek certiorari and his

conviction became final on May 18, 1989. Bohlen, 510 U.S. at 390 (convictions

become final after time for seeking certiorari expires). Read properly, Bunkley

articulates the normal rule that the date of finality controls.

Nevertheless, the SJC pointed to Bunkley’s references to time of conviction in

order to justify departing from the rule articulated in Fiore. In Commonwealth v.

Martin, the SJC claimed a right to not apply Brown’s changed substantive law of

12

first-degree felony-murder in effect during Martin’s direct appeal “but rather what

[the] law required at [the] time of defendant's conviction.” 484 Mass. 634, 645

(2020), cert. denied, — U.S. —, 141 S. Ct. 1519 (2021) (citing Bunkley, 538 U.S. at

840).10

Granting certiorari would allow the Court to clarify what should be a

straightforward inquiry: second-degree felony-murder no longer exists in

Massachusetts so Lopez-Ortiz is entitled to that substantive rule on direct review.

He was convicted of second-degree murder without the jury finding the required

element of malice. Jackson v. Virginia, 443 U.S. 307, 318–319 (1979) (each element

must be proved beyond a reasonable doubt). He should be entitled to relief.

But because of the ambiguity in Bunkley, only this Court can provide the

clarity that would lead to relief. That is because 28 U.S.C. § 2254(d)(1) restricts

lower courts’ habeas review to deciding only whether there has been an

“unreasonable application” of this Court’s precedents, leaving courts without

guidance. Consider the confusion demonstrated by the decision in Moore v. Helling,

where the en banc Ninth Circuit overruled prior precedent and instead held that,

It is reasonable to interpret Fiore II as establishing that changes in

state law must be applied to convictions that are pending on appeal

when the change is announced. … [But] a fairminded jurist could [also]

conclude that because Fiore II did not specifically hold that changes in

state law apply to convictions pending on appeal, Fiore II cannot

clearly establish the principle sufficient to warrant relief under §

2254(d)(1), even if the principles underlying Fiore II supported this

conclusion.

10 Unlike Lopez-Ortiz, Martin did not preserve his claim. Martin admitted that his claim was

unpreserved. Commonwealth v. Martin, No. SJC-08768, Appellant Martin Brief, available at

https://www.ma-appellatecourts.org/pdf/SJC-08768/SJC-08768_01_Appellant_Martin_Brief.pdf (p.

69).

13

763 F.3d 1011, 1019 (9th Cir. 2014), cert. denied, 575 U.S. 1031 (2015).11 See infra

at 24–25 & nn. 28, 29 (cataloging diverging state rules).

Here, Lopez-Ortiz is on direct review. The Court has the power and duty “to

say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). The Court

should do so.

II.

Substantive changes to an offense on direct review are

retroactive even if they result from a common law decision.

Massachusetts substantively changed the elements of the offense to eliminate

the possibility of second-degree felony-murder. However, the SJC claimed authority

to refuse to apply the changes to first-degree felony-murder retroactively on the

assertion that its substantive change was common law and non-constitutional.

Brown, 477 Mass. at 834; Commonwealth v. Shepherd, 493 Mass. 512, 526 (2024);

Commonwealth v. Tyler, 493 Mass. 752, 759 (2024). It boldly declares that “[w]here

we revise our substantive common law of murder, we are free to declare that our

new substantive law shall be applied prospectively.” Martin, 484 Mass. at 645

(citation omitted). This is wrong.

Even if labelling a substantive change as “common law” could affect the

analysis (it cannot), Massachusetts has the common law backwards. “At common

law there was no authority for the proposition that judicial decisions made law only

11 A grant would still likely leave open the question of whether states may depart from Fiore and

Bunkley in collateral challenges where a decision changed the reach of the substantive offense after

the conviction became final on direct review. Bunkley, 538 U.S. at 841 (“if the ‘stages’ of §

790.001(13)'s ‘evolution’ had not sufficiently progressed so that Bunkley’s pocketknife was still a

weapon in 1989, this case raises the issue left open in Fiore”).

14

for the future.” Linkletter v. Walker, 381 U.S. 618, 622 (1965).12 Rather, “the

common-law rule … [is] ‘that a change in law will be given effect while a case is on

direct review.’” United States v. Johnson, 457 U.S. 537, 543 (1982) (quoting

Linkletter, 381 U.S. at 627, citing United States v. Schooner Peggy, 1 Cranch 103

(1801)).13

If the change that abolished Massachusetts second-degree felony-murder was

one of common law as asserted, it applies to Lopez-Ortiz on direct review.

Indeed, the established common law at the founding held that the

prosecution abated if an offense was abolished (or even altered) either pre-trial or

on appeal. Yeaton v. United States, 9 U.S. (5 Cranch) 281, 283 (1809); Landgraf v.

USI Film Prods., 511 U.S. 244, 270–271 (1994); 1 M. Hale, Pleas of the Crown 291

(G. Wilson ed. 1778); W. Hawkins, Pleas of the Crown 73 (8th ed. J. Curwood 1824).

This is a common law rule of reason: “if the prosecution continues, the law must

continue to vivify it.” United States v. Chambers, 291 U.S. 217, 226 (1934).14 If the

12 In an accompanying footnote, the Court noted “‘I know of no authority in this court to say that, in

general, state decisions shall make law only for the future. Judicial decisions have had retrospective

operation for near a thousand years.’ Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140,

148, 54 L.Ed. 228 (1910) (dissenting opinion of Holmes, J.).” Linkletter, 381 U.S. at 622 n.6.

Blackstone explained that under the common law, courts rule “according to the known laws and

customs of the land” and did not “pronounce a new law, but … maintain and expound the old one.” 1

W. Blackstone, Commentaries *69 (15th ed. 1809). This is why, after canvassing this discussion of

common law retroactivity and how it relates to the primary judicial function of deciding cases and

controversies, then-Judge Gorsuch wrote “when it comes to the judiciary we know its decisions are

presumptively retroactive.” De Niz Robles v. Lynch, 803 F.3d 1165, 1171 (10th Cir. 2015).

13 Linkletter and Johnson propounded a doctrine of selective prospectivity which this Court

abandoned for cases involving new rules announced while that case was pending on direct review.

Linkletter, 381 U.S. at 627; Johnson, 457 U.S. at 548; abrogated by Griffith v. Kentucky, 479 U.S. 314

(1987).

14 “[T]he principle that this Court does not disregard current law, when it adjudicates a case pending

before it on direct review, applies regardless of the specific characteristics of the particular new rule

announced.” Griffith, 479 U.S. at 326.

15

law has been deprived of force, then “prosecutions, including proceedings on appeal”

cannot continue. Id.; Hamm v. City of Rock Hill, 379 U.S. 306, 312–313 (1964); Bell

v. State of Md., 378 U.S. 226, 230 (1964).

A “saving” statute that applies to prosecutions under statutes repealed by the

legislature cannot save this prosecution. Warden, Lewisburg Penitentiary v.

Marrero, 417 U.S. 653, 660 (1974). According to Massachusetts, the abolition of

second-degree felony-murder was common law not statutory. Brown, 477 Mass. at

834; Martin, 484 Mass. at 645. And Massachusetts second-degree felony-murder

was created by common law, not by statute. Commonwealth v. Rego, 360 Mass. 385,

395 (1971); Commonwealth v. Matchett, 386 Mass. 492, 503–508, 511 (1982). The

Massachusetts savings statute applies by its terms only to “repeal of statutes.”

M.G.L. c. 4, § 6 (ameliorative statute applies to “[t]he repeal of a statute”);

Chambers, 291 U.S. at 226 (state savings “statutes themselves recognize the

principle which would obtain in their absence”).15

Lopez-Ortiz is entitled to established common law rules of retroactivity.

Erlinger v. United States, 602 U.S. 821, 830–831 (2024) (due process includes

procedural protections for defendants that were well established at common law);

Kahler v. Kansas, 589 U.S. 271, 279 (2020) (Blackstone held persuasive authority in

15 “[R]epeal of criminal laws or of a constitutional provision without a saving clause deprives

appellate courts of jurisdiction to entertain further proceedings under their sanctions. These

instances indicate that the dominant principle is that nisi prius and appellate tribunals alike should

conform their orders to the state law as of the time of the entry. Intervening and conflicting decisions

will thus cause the reversal of judgments which were correct when entered.” Vandenbark v. OwensIllinois Glass Co., 311 U.S. 538, 543 (1941) (footnote omitted).

16

defining due process protections criminal defendants inherit from common law).

Even if common law controlled here, it would afford relief to Lopez-Ortiz.

III.

Massachusetts established a system of Griffith-equivalent limited

retroactivity for all preserved errors on direct review. But then it

refused to review Lopez-Ortiz’s preserved claim on direct review

by relying on a newly-invented, standardless rule of ad hoc

selective prospectivity. Due process entitled Lopez-Ortiz to

review of his preserved claim.

Where normal Massachusetts rules of limited retroactivity would entitle

Lopez-Ortiz to relief based on his preserved claim, due process entitles him to the

benefit of this change in the law. In three sentences, the Appeals Court demurred

that Lopez-Ortiz could not obtain relief because of the SJC’s invocation of ad hoc

prospectivity in Brown.16 App.37a. Massachusetts may not create ad hoc

retroactivity rules departing from prior doctrine in order to defeat Lopez-Ortiz’s

claim.

Once a state has established an appellate system, the system must provide

due process and equal protection. Brinkerhoff-Faris Tr. & Sav. Co. v. Hill, 281 U.S.

673, 680 (1930) (“The federal guaranty of due process extends to state action

through its judicial [branch]”). Arbitrary, ad hoc rulemaking in an appellate system

violates those guarantees. Honda Motor Co. v. Oberg, 512 U.S. 415, 430–432

(1994).17 A state may not limit appeals arbitrarily and then inoculate that

16 “Finally, the defendant argues that he is entitled to the benefit of the common law rule announced

in Commonwealth v. Brown, 477 Mass 805, 825 (2017) (Gants, C.J.). The Supreme Judicial Court, in

Brown, made its substantive change in the law prospective only. Id. 834. It stated that the rule

would not apply to cases like this one where trial was held before the date of the Supreme Judicial

Court decision. Id.” App.37a.

17 In Francis v. Franklin, this Court rejected a proposed standard of review because it would spawn

“an unending stream of cases in which ad hoc decisions will have to be made.” 471 U.S. 307, 322 n.8

17

procedure from claimed error by simply labeling the limitation “discretionary” and

“state law.” Evitts v. Lucey, 469 U.S. 387, 400–401 (1985) (all state action subject to

due process guarantee against arbitrariness). Compare Oberg, 512 U.S. at 430–432

(state constitutional provision limiting judicial review of punitive damages violated

due process). See Griffin v. Illinois, 351 U.S. 12, 15, 18 (1956) (state law arbitrarily

denying funds for transcripts to raise state law issues held unconstitutional). At a

minimum, due process forbids decision by “judicial caprice” and requires judgment

that is “not ad hoc and episodic.” Rochin v. California, 342 U.S. 165, 172 (1952)

(citation omitted, emphasis added). See Welch, 578 U.S. at 129–134 (2016) (rejecting

“ad hoc” exception to retroactivity doctrine). Indeed, this Court has long

disapproved selective prospectivity, particularly in criminal cases, James B. Beam

Distilling Co. v. Georgia, 501 U.S. 529, 537–538 (1991), because it violates “basic

norms” of adjudication. Harper v. Virginia Dep’t of Tax’n, 509 U.S. 86, 97 (1993)

(quoting Griffith, 479 U.S. at 322).

Treating Lopez-Ortiz’s preserved claim as non-cognizable based on a new ad

hoc carveout from established preserved-error doctrine arbitrarily18 changed the

rules in the middle of the contest, violating due process. Compare Bouie v. City of

Columbia, 378 U.S. 347, 352–354 (1964) (applying changed definition of offense on

(1985), holding modified by Boyde v. California, 494 U.S. 370 (1990). And in Lonchar v. Thomas, this

Court disapproved dismissing first habeas corpus petitions “for ad hoc reasons” rather than “formal

judicial, statutory, or rules-based doctrines of law.” Lonchar v. Thomas, 517 U.S. 314, 322–332

(1996) (citation omitted). When ruling on a matter as serious as a first habeas corpus petition (and

direct appeals are even more serious), courts may not employ “ad hoc departure from settled rules.”

Id. at 324.

18 Alexander Hamilton wrote that the function of precedent was to “avoid an arbitrary discretion in

the courts.” The Federalist No. 78, at 510 (Alexander Hamilton) (Modern Library ed., 1938).

18

appeal to uphold conviction violated due process). Prior to this case, Massachusetts

law clearly adopted the doctrine that a defendant like Lopez-Ortiz who preserved

his claim was entitled to the benefit of his own objection. Where “the defendant

objected at trial and argued for this rule [that changes the law] on direct appeal, he

should have the benefit of this decision, which otherwise shall apply only

prospectively.” Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017) (citing

Commonwealth v. Adjutant, 443 Mass. 649, 667 (2005)). See also Commonwealth v.

Hernandez, 481 Mass. 582, 602 (2019) (Commonwealth objected below, appealed,

and “successfully urged us to abandon and replace that doctrine. … [Commonwealth

should] have the benefit of that new rule”).

This is hardly surprising. This Court reasoned in Griffith that the “nature of

judicial review” requires limited retroactivity on direct review. 479 U.S. at 322. And

just generally, when a defendant raises preserved structural (or prejudicial) error

on direct review, “a new trial generally will be granted as a matter of right.” Weaver

v. Massachusetts, 582 U.S. 286, 305 (2017). Similarly, the SJC told criminal

defendants decades ago that if they properly objected, they were “entitled to

appellate review ‘as of right.’” Commonwealth v. Kelly, 417 Mass. 266, 270 n.6

(1994) (quoting Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987), in turn

citing Commonwealth v. Bourgeois, 391 Mass. 869, 884 (1984)).

Massachusetts jurisprudence regarding changes in the elements of murder

had adhered to this system until Brown’s ipse dixit. When the SJC changed the

elements of first-degree and second-degree felony-murder in 1982 in Commonwealth

19

v. Matchett, that defendant preserved his claim and he was afforded the benefit of

the new rule. 386 Mass. 492, 501–502, 511 (1982 ) (changing rule to require proof

that predicate felonies for second-degree felony-murder were committed with

conscious disregard for risk to human life). The SJC then applied the rule to

preserved cases “pending on direct appeal.” Commonwealth v. Moran, 387 Mass.

644, 647, 651 & n.3 (1982) (defendants objected, constitutional objections rejected

but common law changes under Matchett applied); Commonwealth v. Parham, 390

Mass. 833, 845–846 (1984) (benefit of change to felony-murder limited “to those

cases on direct appeal ... if the issue was preserved at trial”).19

Similarly, in Commonwealth v. Hunter, the SJC prospectively changed the

element of “extreme atrocity or cruelty” so as to limit juror discretion. 416 Mass. 831

(1994). But where the defendant preserved the issue, the SJC reviewed for

prejudicial error. Commonwealth v. Robbins, 422 Mass. 305, 310–311 (1996);

Commonwealth v. Dahl, 430 Mass. 813, 825 (2000).

Three years before Lopez-Ortiz’s trial, the SJC emphasized its adherence to

its system of affording Griffith limited retroactivity to preserved claims of error on

direct review. Commonwealth v. Augustine, 467 Mass. 230, 257–258 & n.41 (2014).

It wrote that it had “consistently referenced with implicit approval the principle

19 See also Commonwealth v. Silva, 388 Mass. 495, 505 & n.5 (1983) (articulating preserved error

doctrine); Commonwealth v. Bellamy, 391 Mass. 511, 515–516 (1984) (articulating preserved error

doctrine as to change in felony-murder rule, issue partially preserved, discretionary relief provided);

Commonwealth v. French, 462 Mass. 41, 45–46 (2012) (defendant on direct review “entitled” to new

rule regarding inconsistent verdicts among joint venturers but applying relaxed standard of review

due to lack of objection).

20

that a new criminal rule applies to ‘those cases still pending on direct review.’” Id.

at 257 n.41 (collecting cases).20

Indeed, the SJC’s longstanding preserved error doctrine has not been limited

to changes affecting elements of the offense or to constitutional claims. In

Commonwealth v. Federico, because the defendant objected at trial to the common

law issue of the scope of expert testimony, the SJC “recognize[d] that ordering a

new trial may come with a heavy cost ... [but] we adhere to our view that, on direct

appeal, a defendant has the benefit of intervening decisional law.” 425 Mass. 844,

852 n.14 (1997) (citation omitted). Accord Commonwealth v. Pidge, 400 Mass. 350,

354 (1987) (applying doctrine to change in common law rule of evidence, rejecting

distinction that the new rule was not constitutional). Commonwealth v. Figueroa,

413 Mass. 193, 202–203 (1992), S.C., 422 Mass. 72 (1996) (common law evidentiary

rule); Commonwealth v. Odgren, 483 Mass. 41, 49 (2019) (prescient objection to

common law presumption of sanity reviewed for preserved error); Commonwealth v.

Waweru, 480 Mass. 173, 187 (2018) (same).

Limited retroactivity for preserved claims on direct review continued as

Massachusetts doctrine after Brown. Wolfe was decided one month after Brown and

it still employed its preserved error doctrine for a new rule. Wolfe, 478 Mass. at 150.

And the SJC employed the doctrine two years later in Hernandez to give the

20 The SJC explicitly adopted this treatment of preserved claims relating to otherwise-prospective

rulings in civil cases as well. Fed. Nat’l Mort. Ass’n v. Marroquin, 477 Mass. 82, 87–88 (2017).

21

prosecution the benefit of a change in the common law.21 Hernandez, 481 Mass. at

602. The SJC continues to cite Wolfe as an example of the correct application of the

preserved error doctrine as recently as August 14, 2023. Commonwealth v. Souza,

492 Mass. 615, 626–627 (2023).

The decision to refuse review was demonstrably ad hoc and therefore violated

due process.22

Massachusetts will undoubtedly point to oft-quoted language that “the

Federal Constitution has no voice upon the subject” of state retroactivity rules.

Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932).23

Massachusetts clings to this even when the substance of a criminal offense changes.

See Martin, 484 Mass. at 645.

The assertion does not withstand scrutiny. The actual language from

Sunburst Oil is this:

We think the Federal Constitution has no voice upon the subject. A

state in defining the limits of adherence to precedent may make a

choice for itself between the principle of forward operation and that of

relation backward. It may say that decisions of its highest court,

21 One outlier is Commonwealth v. Castillo, where there was an objection to the extreme atrocity or

cruelty instruction, the Court declared its new rule prospective, but reduced the verdict to seconddegree under M.G.L. c. 278, § 33E. 485 Mass. 852, 857, 866–868 (2020). But this is more generous

treatment than under the normal doctrine which would have permitted a retrial for first-degree. See,

e.g., Matchett, 386 Mass. at 511.

22 See also Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (failure to afford preserved error review

in favor of selective prospectivity violates due process and equal protection protections in Florida

constitution).

23 Sunburst was a 1932 civil case about whether a state court could refuse to order retroactive

refunds for payments made on a later-revoked regulatory freight tariff schedule. Id. at 360–361. As

noted, this Court has since expressed a view of retroactivity on direct review that is more protective

of individual liberty in criminal cases. Beam, 501 U.S. at 537–538; Griffith, 479 U.S. at 322.

22

though later overruled, are law none the less for intermediate

transactions.

Sunburst Oil, 287 U.S. at 364.

At most, Sunburst Oil means that states may choose between principles of

adjudication in their jurisprudential doctrine.24 It does not mean that states are free

to engage in adjudication without resort to principles. “A government of laws and

not of men,” Cooper v. Aaron, 358 U.S. 1, 23 (1958), means that even if Sunburst Oil

permits state courts to develop their own retroactivity rules that are less protective

of individual liberty,25 they must have rules that are both discernible and followed.

“[R]evision of [government’s] errors must be by orderly process of law.” Aaron, 358

U.S. at 23 (quoting United States v. United Mine Workers of Am., 330 U.S. 258, 308

(1947) (Frankfurter, J., concurring)).

Due process requires at least this much. “[T]he Due Process Clause does not

permit a State to classify arbitrariness as a virtue. Indeed, the point of due

process—of the law in general—is to allow citizens to order their behavior.” State

Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417–418 (2003) (citation

omitted). Instead of fostering the perception of integrity, ad hoc decisions diminish

24 Griffith rejected selective prospectivity to cases pending on direct review as “unprincipled and

inequitable.” Teague v. Lane, 489 U.S. 288, 304 (1989) (citing Griffith, 479 U.S. at 322).

25 Contrast Danforth v. Minnesota, 552 U.S. 264, 266 (2008) (states may employ state collateral

retroactivity rules that are more protective of federal constitutional rights than Teague v. Lane, 489

U.S. 288 (1989)).

23

“public faith in the judiciary as a source of impersonal and reasoned judgments.”

Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).26

Massachusetts may not devise a system affording limited retroactivity on

direct review for preserved errors and then withhold that protection.

IV.

This case is a good candidate for certiorari review. It cleanly

presents the issues, both factually and legally. Lopez-Ortiz

preserved the issue. Lopez-Ortiz’s conviction stands or falls on the

issue presented. The issue presented involves issues left open in

prior decisions of this Court, leaving the lower courts split.

The grants of certiorari in Fiore and Bunkley demonstrate that the question

presented is important. But ultimately those cases did not resolve them.

In Fiore, the Court “granted certiorari in part to decide when, or whether, the

Federal Due Process Clause requires a State to apply a new interpretation of a state

criminal statute retroactively to cases on collateral review.” Fiore I, 531 U.S. at 226.

In Bunkley, the Court remanded to the Florida Supreme Court to determine

whether Bunkley’s knife met the state court’s definition of the crime at issue “at the

time his conviction became final.” Bunkley, 538 U.S. at 842. The answer was no and

this Court denied certiorari. Bunkley v. State, 882 So. 2d 890, 894 (Fla. 2004), cert.

denied, 543 U.S. 1079 (2005).

26 See Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26

Harv. J.L. & Pub. Pol’y 811, 873 (2003) (“prospectivity-based approaches, being highly subject to the

discretion of the decision-maker, also have a great potential for abuse”); Andrew I. Haddad, Cruel

Timing: Retroactive Application of State Criminal Procedural Rules to Direct Appeals, 116 Colum. L.

Rev. 1259, 1290 n.179 (2016) (“selective prospectivity is incompatible with the judicial role”).

24

As noted, supra at 9–13, both Bunkley and Fiore were collateral challenges

implicating finality concerns. In both cases, the resolution of the case turned on the

definition of the state offense at the time the conviction became final. Id.

Here, the conviction is not yet final and the state has already defined LopezOrtiz’s offense of conviction out of existence. Brown, 477 Mass. at 832 & n.4. But

Massachusetts asserts that it is free to restrict the benefit of ameliorative

substantive changes to an offense even on direct review. Martin, 484 Mass. at 645.

Commonwealth v. Concepcion, 487 Mass. 77, 83 n.10 (2021); Commonwealth v.

Castillo, 485 Mass. 852, 867 (2020); Commonwealth v. Bastos, 103 Mass. App. Ct.

376, 380, review denied, 493 Mass. 1104 (2023); Commonwealth v. Ashford, 486

Mass. 450, 453 (2020) (interpreting new substantive rule, court asserts “[w]here the

statutory interpretation at issue is not constitutionally required … we retain some

discretion to apply the rule only prospectively”).

The inconsistency in language in Bunkley, and the unresolved conflict

between Welch and Stone,27 leads some states to similarly believe that this

“discretion” is permissible on direct review even though Bunkley, Welch, and Stone

were all collateral challenges.28 Other states provide limited retroactivity on direct

27 Supra at n.9.

28 People v. Douglas, 205 A.D.2d 280 (N.Y. App. Div. 1994), aff'd, 85 N.Y.2d 961 (1995) (new

substantive ruling on element of crime subject to Linkletter-like prospectivity inquiry on direct

review); see also People v. Hill, 648 N.E.2d 455 (N.Y. 1995) (new substantive ruling on element of

crime subject to Linkletter factors on collateral review); Taylor v. State, 10 S.W.3d 673 (Tex. Crim.

App. 2000) (Linkletter-like prospectivity inquiry regarding preserved, new substantive rule on direct

review, collecting cases from other jurisdictions); State v. Hudson, 331 N.C. 122, 157–158 (1992) (new

substantive rule denied retroactive application on direct review, no rationale articulated).

25

review for new substantive rules while others provide limited retroactivity for all

new rules, but normally require preservation below.29

Given Bunkley’s inconsistent language, supra at 11, the lower federal courts

have been rendered powerless to grant relief on this issue given the “unreasonable

application” clause of 28 U.S.C. § 2254(d)(1). See Moore, 763 F.3d at 1019 (similar

issue presented, Court of Appeals pointed to Bunkley as not resolving the question).

This Court can resolve the question on direct review and say what the law is.

A similar question was presented to this Court in the certiorari petition from

the decision in Commonwealth v. Martin, 484 Mass. 634 (2020), cert. denied, 141 S.

Ct. 1519 (2021) (No. 20-6050). That case was a much worse vehicle for deciding the

issue. First, Martin was convicted of first-degree felony-murder, which still exists

after Brown, albeit in a different form. Brown, 477 Mass. at 807–808. Second,

29 Smith v. State, 598 So.2d 1063 (Fla. 1992) (new rules retroactive to cases pending direct review if

preserved); Howard v. State, 236 N.E.3d 735 (Ind. 2024) (all new rules retroactive to cases pending

on direct review if preserved); State v. Gomez, 320 Kan. 3, 9 (2025) (new substantive ruling regarding

instruction on elements of felony-murder retroactive on direct review); State v. Ruiz, 955 So.2d 81,

84–85 (La. 2007) (all new rules retroactive to cases pending on direct review if preserved, rejecting

Linkletter); Richmond v. State, 118 Nev. 924 (2002) (all new rules given retroactive effect on direct

review if preserved); Nika v. State, 124 Nev. 1272, 1287 (2008) (error to refuse limited retroactivity

on direct appeal to preserved argument for new rule defining elements of murder); State v. Tierney,

150 N.H. 339, 344 (2003); Pailin v. Vose, 603 A.2d 738, 742 (R.I. 1992) (adopting limited retroactivity

for any new rule of criminal procedure for cases pending on direct review); State v. Tuttle, 460

N.W.2d 157, 159 & n.* (S.D. 1990) (new state procedural rule granted limited retroactivity on direct

review if preserved); State v. Guard, 371 P.3d 1, 19 (Utah 2015) (all new rules retroactive to cases

pending on direct review if preserved); State v. Gangwer, 168 W.Va. 190, 196–197 (1981) (all new

rules retroactive to cases pending on direct review if preserved). See also Chao v. State, 931 A.2d

1000 (Del. 2007) (new substantive decisions applied retroactively on collateral review when

defendant has been convicted for abolished theory of felony-murder); Rudolfo v. Steward, 533 P.3d

728 (N.M. 2023) (new substantive rule restricting elements of felony murder applied retroactively on

collateral review). Contrast State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (common law

substantive rule restricting felony murder predicate offenses granted limited retroactivity on direct

review where preserved) with Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016) (Heemstra’s

substantive change in law not retroactive on collateral review).

26

Martin failed to preserve the issue. Supra at 12 n.10. 30 Therefore, Massachusetts

was free to invoke procedural default to bar the claim regardless of any retroactivity

considerations. Beam, 501 U.S. at 544; Powell v. Nevada, 511 U.S. 79, 85 (1994).

Third, the issue was non-prejudicial in Martin. Martin himself brandished a gun to

rob the victim and shot the victim in the chest at close range while the victim asked

him to “wait a minute” with palms out. Martin, 484 Mass. at 637. There is almost

no chance that Martin’s jury would not have found one of the prongs of malice and

that the killing occurred during the course of a life felony. Id. at 646–648.

Here, this issue went to the heart of Lopez-Ortiz’s case. The jury refused to

convict Lopez-Ortiz of any life felony. He testified that he opposed the involvement

of any firearms, that he attempted to stop the assault by pushing Okowuga away

from the victim when Okowuga produced a firearm. Tr.8:153–154, 158, 160, 167–

169, 207. He further testified that when he pushed Okowuga again, Tillis cut him

and pushed him back down the hall. Tr.8:169, 199–200. He then announced that he

was leaving. Tr. 8:169. Lopez-Ortiz’s intervention likely allowed the victim to free

himself and chase Rivera and Tillis out of the house. Tr.8:170–172.

Unlike Martin, Lopez-Ortiz did not shoot the victim. He tried to prevent the

shooting. The question of what law applies makes all the difference.

30 The record in Brown establishes that Brown also did not object. Commonwealth v. Brown, No.

MICR2009-0511 (June 24 & 25, 2013) (Tr.8:4, 5, 8, 76, 78; Tr.9:39, 92–95); see Commonwealth v.

Brown, No. SJC-11669, Appellant Brown Brief, at 48–49 (no assertion that issue was preserved),

available at: http://ma-appellatecourts.org/display_docket.php?src=party&dno=SJC-11669; see 477

Mass. at 805–842.

27

CONCLUSION

This Court should grant the petition for a writ of certiorari.

Respectfully submitted,

December 22, 2025

DAVID NATHANSON

Counsel of Record for Petitioner

MELISSA RAMOS

DANYA F. FULLERTON

55 Union Street, 4th Floor

Boston, MA 02108

dnathanson@JNdefense.com

(617) 248-1806