Petition for Writ of Certiorari — O'Brien v. O'Laughlin (No. 09-484)

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Supreme Court, U.S.

P FILED ’

09-484 OCT 21 2009

S6FICE OF THE CLERK

Hn the

Supreme Court of the Gnited States

STEVEN O’BRIEN,

Superintendent, Old Colony Correctional Center;

Petitioner.

VU.

MICHAEL O’ LAUGHLIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR AWRIT OF CERTIORARI

MARTHA COAKLEY

Massachusetts Attorney General

JESSICA V. BARNETT*

JAMES J. ARGUIN

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108-1598

(617) 727-2200

*Counsel of Record

QUESTION PRESENTED

This petition presents the same question for

review as the petition for certiorari in Metrish v.

Newman, No. 08-1401, 2009 WL 1370163 (U.S.

May 12, 2009), namely, whether a federal habeas

court in reviewing the reasonableness of a state

court’s application of the sufficiency-of-the-evidence

standard established in Jackson v. Virginia, 443

U.S. 307 (1979), may rely on a “reasonable

speculation” standard to set aside the state court’s

evaluation oof the circumstantial evidence

supporting the jury’s verdict.

TABLE OF CONTENTS

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REASONS FOR GRANTING THE PETITION .. 10

A. This Court Should Grant Certiorari to

Prevent Federal Habeas Retrials of State

Criminal Cases in violation of AEDPA. ....... 13

B. This Court Should Grant Certiorari Because

the “Reasonable Speculation” Standard

Finds No Basis in this Court’s Cases and

Threatens to Erode Jackson v. Virginia....... 16

1. The “reasonable speculation” standard

is not clearly-established law under

SOPH Oe ee EEE EEE HEE EEEHEHEHEEEEH OEE EHH EEE HHH OEE

The term “reasonable speculation” is

inherently contradictory and permits

appellate courts to usurp the jury’s role

IN oo. cunccvacceccescncsccscsvecsesecsese 17

3. The “reasonable speculation” standard

devalues circumstantial evidence,

unduly disadvantaging the prosecution

in domestic and acquaintance violence

DOIG icassiccseenssiccescrecneetes eceateeeee 20

C. This Court Should Grant Certiorari Because

the Instant Case is a Good Vehicle for

Clarifying Jackson’s Application to

Circumstantial Cases and for Re-Affirming

APPENDIX A: First Circuit Opinion, dated June

Pl I bvnsisdasctictsn into ee la

APPENDIX B: District Court Order of

Dismissal, dated December 12, 2007.......... 52a

APPENDIX C: Massachusetts Supreme Judicial

Court Opinion, dated March 10, 2006........ 53a

APPENDIX D: First Circuit Order Denying

Panel Rehearing and Rehearing en Banc... 90a

APPENDIX E: Statutory Provisions .............. 1l3a

TABLE OF AUTHORITIES

Cases

Anderson v. Fuller,

MN AF a IE ID incase vnedsvnxanconsecbsccaceresdseneve 19

Bell v. Cone,

535 U.S. GBS C00Z)...........0cccccccccesesee 10, 13, 15, 16

Brown v. Farwell,

525 F.3d 787 (9th Cir. 2008),

cert. granted sub nom, McDaniel v.

Brown, 129 S. Ct. 1038 (2009)................02.... 12, 30

Brown v. Palmer,

Be Fe ee Cn Gh, BOD hosts nvcnccscchecccnsevassess 21

Brown v. Payton,

SOME Fe MD oo ide sacxcaveccecedetchacdedsoucacads 15, 23

Carey v. Musladin,

ee coc aca veesanccvddunconsvconccdcevasaves 17

Commonwealth v. O'Laughlin,

63 Mass. App. Ct. 805, 830 N.E.2d 222 (2005).... 8

Commonwealth v. O’Laughlin,

446 Mass. 188, 843 N.E.2d 617 (2006)........ passim

Desert Palace, Inc. v. Costa,

ee er oon spi vakecucnveucaccesancrsoeion 20, 28

Duckworth v. Fagan,

— BOSE |

Duncan v. Walker,

EE A UE RI Bie pnciccsssccnccosewncnsaves

Early v. Packer,

LE | ne

Engle v. Isaac,

456 U.S. 107 (1982)....... cuinseent aaiagetiia

Fuller v. Anderson,

662 F.2d 420 (6th Cir. 1981),

cert. denied sub nom, Anderson v.

Fuller, 455 U.S. 1028 (1982) .............

Herrera v. Collins,

BOG UTS. BI CIOS) ov cccrcccecccosesvaceesscess

Holland v. United States,

Be ae, BE CR iiss ccsssconssenersscsones

Jackson v. Virginia,

Ee RE. EE GE ce niriskcccnnhconesszactoes

Knowles v. Mirzayanee,

ERD SS. CE. FEE CD occ ncn sssccevevecocess

Lockyer v. Andrade,

Pee ees Ne I ois vk vevcscsvecsreerscvecawans

McDaneel v. Brown,

129 S. Ce. FOSS COGS)... ssc cecssceecesee

een re 30

20, 25, 28

Eis passim

Miller-El v. Cockrell,

Be re CE IE os ocaccedcasdvcccunccessacvscccdosecsveacs 13

Miranda v. Arizona,

sn. ss cconpnanevasenaeceeees 14, 22

Mitchell v. Esparza,

540 U.S. 12 (2003)

Newman v. Metrish,

543 F.3d 793 (6th Cir. 2008)... 2, 11, 16, 17, 21, 30

O’Brien v. O’Laughlin,

No. 09A194, 2009 WL 2831420

(U.S. August 26, 2009)

(Breyer, J., 1M) CRAMDETLS) ...........0...ccccsccccsccccscees 10n

O’Laughlin v. O’Brien,

ee ee OE CEG CAT, BOD) onccccesscsecseessccass passim

O’Laughlin v. O’Brien,

577 F.Sa i (ist Cir. 2009) ............. 1, 10, 18, 19, 20

Parke v. kaley,

so cy sa vngideuu de vuduenandoueesuens 11

Parker v. Rentco,

Soe We cee Oe CEE GAP, DIED vcescccscccceccsssensseseeseass 21

Schlup v. Delo,

513 U.S. 298 (1996)................ ipistumadotesuatere 18, 28n

Schriro v. Landrigan,

Be Sy MUU SION E Dano sconscvdvcccvvcdscctccsonacccecast 10, 14

vll

Smith v. Romanowski,

No. 07-1578, 2009 WL 1884451

CE Be I vice ca nov cnacvinsvcssesensesveccsecensens 21

Strickland v. Washington,

ee I I oor ox nese cnesinssssensecersconsccesyens 14,15

Tucker v. Palmer,

641 F.3d 652 (6th Cir. 2006)..........ccccescoccssscevenees 21

Uttecht v. Brown,

Ee FP noo coscecccecsscactecncccocccenseovens 14

Wainwright v. Witt,

469 U.S. 412 (1985)......... adi cin ca kpbangussica cacao aes 14

Williams v. Taylor,

529 U.S. 362 (2000)............00.. 2, 10, 11, 13, 14, 19

Witherspoon v. fllinois,

ne es ns css sunenaiannsukancmamaiiiae 14

Woodford v. Garceau,

Re Ue. Be CS cnc csceccscseseses apaIa anaes 10, 13

Woodford v. Visciotti,

ee eI 5. csc seve usvsabachentsacressvanaciens 14, 15

Wright v. West,

ee es seks gin bnaaewkieandiinses 18, 30

Yarborough v. Alvarado,

OE EF. SOF CGD ons vivcsicccccseccess 14, 18, 22, 23, 29

Vill

Statutory Provisions

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Fe re ie IE axicacedaksvinissasereematannens covnisekeduaneadaas 1,8

Oe Rs as te i iadkseh canicceontsenmieaeeean 1, 2n, 15

26 U.S.C. S SABGGIMD) 2. ccavsvsccccess 1,11, 13, 14, 15, 17

DE U2 & Se iivckdscssstcctencctauees 1, 3n, 11

Mass. Gen. Laws ch. 265, § 15A(b)............0...000.-0..0. 8

Mass. Gen. Laws ch. 265, § 18A ...... 2c cece ec ec ecco ees 8

Mass. Gen. Laws ch. 265, § 18(b)...................... ecco eee 8

Mans. Gen. LOWS Gh. TOG, © 36 vcsicdvsevssccticcinaae 8

Rules

Be, SE, hn i oan oven de nviecsencadeneccaasveacse eee ee 15

OG. Fe. PA. Fc Be oisncnvecinervccssszsvrs saisinteeetan nia 5

Fed. . AO. F. GIG visissessasmaniose eee 10

Other

Nancy J. King, et al., Final Technical Report:

Habeas Litigation in U.S. District Courts,

Vanderbilt University Law School and National

Center for State Courts (2007), available at

www.law.vanderbilt.edu......................... Ft OOO 12

Petition for Certiorari, Metrish v. Newman,

No. 08-1401, 2009 WL 1370163

(U.S. May 12, 2009) .......c.cccccccceeeceseeees i, 13, 17, 30

T. Lininger, Prosecuting Batterers After Crawford,

NS Se . 20

]

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the First Circuit is published at 568

I 3d 287 (1st Cir. 2009). Appendix A. The order

of the United States District Court for the District

of Massachusetts is unpublished. Appendix B. The

Massachusetts Supreme Judicial Court’s opinion is

published at 446 Mass. 188, 843 N.E.2d 617 (2006).

Appendix C. The order of the Court of Appeals for

the First Circuit denying panel rehearing and

rehearing en banc is published at 577 F.3d 1 (1st

Cir. 2009). Appendix D.

JURISDICTION

The jurisdiction of the federal district court

was invoked by the timely filing of a petition for

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

The federal district court denied the petition, and

the Court of Appeals for the First Circuit reversed.

The judgment of the court of appeals was entered

on June 10, 2009. The First Circuit denied a timely

petition for panel rehearing and rehearing en banc

on August 7, 2009. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254()).

STATUTORY PROVISIONS

The statutory provisions involved = are

28 U.S.C. § 1254(1); 28 U.S.C. § 2254(d); 28 U.S.C.

§ 2254(d)(1); and 28 US.C. § 2254(e)(1).

Appendix E.

INTRODUCTION

This case presents a= pressing. issue

impacting the core principles of comity and

federalism that underlie statutory restrictions on |

federal habeas review. It also involves the dilution

of the Jackson standard of review for sufficiency-of-

the-evidence claims, particularly where, as here,

the jury’s verdict rests on circumstantial evidence.

In evaluating — sufficiency-of-the-evidence

claims on habeas review, deference is due both

(1) to the state court’s reasonable application of the

Jackson standard under AEDPA,' see Williams uv.

Taylor, 529 U.S. 362, 409-11 (2000), and (2) to the

reasonable inferences that the jury could have

drawn in reaching its verdict, see Jackson, 445 U.S.

at 326. Recently, however, the Sixth Circuit, and

now the First Circuit, have departed from this

settled precedent by holding that a state-court

determination that there was sufficient evidence to

support a jury’s verdict can be set aside when a

federal court determines that the conviction is

based on “reasonable speculation” as opposed to

reasonable inferences. See O’Laughlin v. O’Brien,

568 F.3d 287, 302 (1st Cir. 2009) (““O’Laughilin IIT’),

Appendix A; Newman v. Metrish, 543 F.3d 793, 796

(Gth Cir. 2008), petition for cert. filed, Metrish v.

Newman, No. 08-1401, 2009 WL 1370163 (U.S.

May 12, 2009).

' The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA’). 28 U.S.C. § 2254(d).

The “reasonable speculation” standard has

no basis in this Court's precedents and is contrary

to the fundamental principles of comity and

federalism underlying AEDPA's stringent

restrictions on federal habeas review. It invites

federal habeas courts to second guess the reasoned

judgment of state appellate courts, and, equally

troubling, to override the reasonable inferences

that the jury could have drawn from the evidence

presented at trial. The need for adherence to

AEDPA’s restrictions is especially strong in

sufficiency-of-the-evidence cases, where double

jeopardy bars the state from retrying a successful

habeas petitioner.

STATEMENT OF THE CASE

1. On the morning of November 17, 2000,

the victim, Annmarie Kotowski, was found in her

apartment severely beaten, having suffered fifteen

to twenty blows that broke nearly every bone in her

face and skull. Commonwealth v. O’Laughlin, 446

Mass. 188, 190, 198, 843 N.E.2d 617, 621, 626

(2006) (““O’Laughlin IT’). Appendix C.2. The victim

survived, but she had no memory of the attack. /d.

at 190, 843 N.E.2d at 621.

2 The opinion of the Massachusetts Supreme ducicial Court

(“SJC) contains a detailed recitation of the evidence. On

habeas review. these factual «(leterminations are presumed

correct. unless rebutted by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). Highlighted here are those facts from

which a rational jury could infer guilt. Further facts are

introduced as necessary in the statement of reasons for

granting the petition

Respondent Michael O’Laughlin lived two

doors away from the victim in the same apartment

complex. /d. at 191, 199, 843 N.E.2d at 621, 627.

As a maintenance worker at the complex,

O’Laughlin had a master key to the victim’s

apartment. /d. at 191, 199, 843 N.E.2d at 621-22,

627. The police did not detect any signs of forced

entry into the victim’s apartment. Jd. at 194, 843

N.E.2d at 624. In fact, the doors were locked when

Mrs. Kotowski was discovered that morning. /d. at

193-94, 843 N.E.2d at 623.

Shortly before 2 a.m. on the night of the

attack, the victim’s upstairs neighbor was

awakened by banging and screaming noises and

called 911. Jd. at 192, 843 N.E.2d at 622. The

neighbor testified that he did not hear any vehicles

enter or leave the area from the time he first heard

screaming until the time the police arrived. Jd. at

192-93, 843 N.E.2d at 622-23. A test conducted by

the State Police determined that a person in the

victim’s apartment would have been able to hear

that someone was speaking in the apartment

above, but would have been unable to hear what

was said. Jd. at 192 n.3, 843 N.E.2d at 622 n.3.

When the police arrived following the 911

call, they encountered O’Laughlin outside, in 35-

degree weather, wearing only boxer shorts. Jd. at

193, 200, 202, 843 N.E.2d at 623, 627, 629.

According to the officers, O’Laughlin was “uneasy

and distant,” and he avoided eye contact with them.

Id. at 193, 200, 843 N.E.2d at 623, 627.

O’Laughlin told the police that he had been

awakened by screaming, but he thought it was an

animal trapped in the dumpster, so he had lodged a

stick in the dumpster to allow the animal to climb

out. Id. at 193, 200, 843 N.F.2d at 623, 627.5 But

the next morning, O’Laughlin claimed that he had

been awakened by noise from the arriving police

cruisers. Jd. at 195, 200, 843 N.E.2d at 624, 627.

Later, he gave yet another version. Jd. at 195, 200,

843 N.E.2d at 623, 627.

In fact, all three accounts were lies;

O’Laughlin’s telephone records indicated that he

was awake in his apartment at the time he claimed

to be sleeping. Jd. at 192, 200, 843 N.E.2d at 622,

627. O’Laughlin’s last telephone call was just

twelve minutes before the neighbor made his 911

call, id. at 192, 843 N.E.2d at 622, and there were

no other calls until later that morning, after the

police had arrived at the scene and an ambulance

had transported Mrs. Kotowski to the hospital. See

Trial Exhibit # 57, filed with the court of appeals as

supplemental authority pursuant to Fed. R. App. P.

284) on September 18, 2008.

O’Laughlin had spent the evening of the

attack drinking and smoking crack cocaine, but

eventually ran out of drugs. O’Laughlin II, 446

Mass. at 191-92, 199, 843 N.E.2d at 622, 627. He

3 O’Laughlin successfully steered the officers away from the

building, just two doors away, where the 911 caller and the

victim lived. The officers left shortly after their encounter

with O’'Laughlin, without speaking with the neighbor who

had made the 911 call. OZLaughtlin Il, 446 Mass. at 193. 843

N.E.2d at 623. The victim remained, injured and bleeding, in

her apartment, until she was discovered by her boyfriend at

about 5:45 a.m. Id. The victim’s boyfriend then notified the

police, who were dispatched back to the apartment. /d. at

194, 843 N.E.2d at 623.

was eager to obtain more drugs, but he had also

run out of money. Jd. at 192, 199, 843 N.E.2d at

622, 627. O’Laughlin called several drug dealers

during the two hours immediately preceding the

attack. Jd. at 192, 199, 843 N.E.2d at 622, 627.

Between midnight and two a.m., O’Laughlin made

fifteen telephone calls. Tr. 8/54.4 O’Laughlin, who

had previously been inside the victim’s apartment,

believed that the victim “had money.” O’Laughlin

IT, 446 Mass. at 192, 199, 843 N.E.2d at 622, 627.

The morning after the attack, when

O’Laughlin was told that someone had been

“murdered,” he replied, “What do you want me to

do about it?” Jd. at 194, 843 N.E.2d at 624. Later

that morning, O’Laughlin went to the police station

to be interviewed, but left shortly after without

telling anyone that he was leaving. Jd. at 195, 843

N.E.2d at 624. When he returned, he seemed

agitated and hed to the police, as described above.

Id. at 195, 200, 843 N.E.2d at 624, 627-28.

Following the attack, police discovered an

aluminum baseball bat on the ground a _ short

distance from the victim’s apartment. Jd. at 196,

199, 843 N.E.2d at 625, 627. The bat was covered

with leaves and debris, but was otherwise “clean.”

Id. at 196, 200, 843 N.E.2d at 625, 627.

4“Tr. [vol./[page|’ refers to the ten-volume tnal transcript.

which was filed with the district court.

5 The Commonwealth performed forensic testing on the bat.

As summarized by the SJC:

Three small reddish brown stains on the bat

tested positive for the presumptive presence of

blood. One tested positive for human blood.

O’Laughlin’s last name was inscribed on the bat,

and O’Laughlin later admitted that the bat

belonged to him. Jd. at 196-97, 200, 843 N.E.2d at

625, 627. The surgeon who operated on the victim

opined that her injuries “were caused by a long,

sturdy, hard, round object, consistent with an

aluminum bat like the one that was recovered near

the apartment building.” Jd. at 198, 843 N.E.2d at

626.

O’Laughlin consented to a search of his

apartment the day after the attack. Jd. at 195, 200,

843 N.E.2d at 625, 628. During the search, the

police alerted O’Laughlin to a red stain on his

closet door and asked whether they could take

swabbings. /d. at 195-96, 843 N.E.2d at 625.

O’Laughlin refused and told the police to leave. Id.

at 195-96, 843 N.E.2d at 625. He then removed the

stain with his finger and told the police they could

The three stains were swabbed and sent to the

deoxyribonucleic acicl (DNA) unit for further

lesting. Because of contamination in the DNA

lab, tests consumed all the testable material

without yielding results. An additional cutting

from tape on the bat’s handle from an area

where the presumptive presence of blood could

still be detected was submitted to the

laboratory. A State police DNA analyst

obtained human genetic material from the

sample indicating two or more donors, with

both a male and female possible in the

mixture. She concluded that the victim could

not be excluded as a contributor and that one

in two of any randomly selected individuals

“could have been the contributor.”

O’Laughilin IT. 446 Mass. at 197. 843 N.E.2d at 626.

return, explaining that he believed the stain was

his own blood, but he was not sure. Jd. at 196, 200,

843 N.E.2d at 625, 628. That morning, police

officers had noticed a “scratch or a dig mark” on

O’Laughlin’s cheek, a cut on his chin, and a “round,

circular bruise” below his left ear. Jd. at 194-95,

843 N.E.2d at 624.

2. Following a nine-day jury trial in May

2002, O’Laughlin was convicted of four offenses in

connection with the attack on Annmarie Kotowski:

(1) Burglary and Armed Assault in a Dwelling, see

Mass. Gen. Laws ch. 266, § 14; (2) Armed Assault

in a Dwelling, see Mass. Gen. Laws ch. 265, § 18A;

(3) Armed Assault with Intent to Murder, see Mass.

Gen. Laws ch. 265, § 18(b); and (4) Assault and

Battery by Means of a Dangerous Weapon, see

Mass. Gen. Laws ch. 265, § 15A(b).

3. On appeal, a three-judge panel of the

Massachusetts Appeals Court concluded that there

was insufficient evidence to support the jury’s

verdicts and reversed O’Laughlin’s convictions.

Commonwealth v. O’Laughlin, 63 Mass. App. Ct.

805, 817-23, 830 N.E.2d 222, 230-35 (2005). The

Massachusetts SJC granted further appellate

review and—in a unanimous 7-0 decision—

concluded that the evidence against O’Laughlin

was sufficient to support the verdicts. O’Laughlin

II, 446 Mass. at 198-205, 843 N_E.2d at 626-31.

After rejecting O’Laughlin’s other arguments, the

SJC affirmed his convictions. Jd. at 205-11, 843

N.E.2d at 631-35.

4. O’Laughlin’s habeas petition pursuant to

28 U.S.C. § 2254 followed. In his habeas petition,

O’Laughlin alleged that: (1) the evidence at trial

was constitutionally insufficient to prove his

identity as the perpetrator; and (2) the trial court

violated his right to present a defense by excluding

a handwritten note from evidence that, according to

O’Laughlin, supported his third-party culprit

defense. After briefing by the parties and a non-

evidentiary hearing, the district court denied

O’Laughlin’s petition. Appendix B. O’Laughlin

filed a timely notice of appeal and requested a

certificate of appealability (“COA”) from the district

court as to his sufficiency and right-to-present-a-

defense claims. The district court granted a COA

with respect to both issues.

5. In an opinion issued June 10, 2009, a

panel of the First Circuit concluded that the

evidence was constitutionally insufficient to convict

O’Laughlin and that the SJC’s decision affirming

O’Laughlin’s convictions was objectively

unreasonable. O’Laughlin Ill, 568 F.3d at 308.

The First Circuit thus reversed the order of the

district court and remanded the case with

instructions that the district court order

O’Laughlin’s unconditional release with prejudice

to reprosecution. Jd. at 309. In light of its holding

on the sufficiency issue, the panel did not reach

O’Laughlin’s remaining claim regarding his right to

present a defense. Jd. at 309 n.27.

G. On June 24, 2009, the Commonwealth

filed a petition for panel rehearing and rehearing

6 O’Laughlins petition also included a third claim not

relevant to this appeal

en banc in the First Circuit, which automatically

stayed the First Cuircuit’s mandate pending

disposition of the petition. See Fed. R. App. P.

41(d)(1). On August 7, 2009, the First Circuit

denied the Commonwealth’s petition for rehearing,

over the dissent of Chief Judge Sandra L. Lynch.

O’Laughlin v. O’Brien, 577 F.3d 1 (1st Cir. 2009)

(“O’Laughlin IV’). Appendix D.

7. On August 27, 2009, following the filing

and disposition of a series of motions for release

and counter-motions for a stay, including an

application for stay addressed to a single justice of

this Court, see Docket No. 09A194, the First Circuit

issued its mandate. On September 1, 2009, in

accordance with an in-chambers opinion of Justice

Breyer,’ the federal district court released

O’Laughlin on bail, subject to a number of

conditions, including house arrest, electronic

monitoring, and periodic reporting to the court’s

Pretrial Services office, pending a decision from

this Court on certiorari.

REASONS FOR GRANTING THE PETITION

This Court has repeatedly held that habeas

review is not intended to result in a federal retrial

of state criminal cases. Schriro v. Landrigan, 550

U.S. 465, 475 (2007); Woodford v. Garceau, 538

U.S. 202, 206 (2003); Bell v. Cone, 535 U.S. 685,

693 (2002); Williams v. Taylor, 529 U.S. 362, 386

(2000) (Opinion of Stevens, J.). Instead, AEDPA

* OBrien v. O'Laughlin, No. 094194, 2009 WL 2831420 (U.S

August 26. 2009) (Brever. J.. in chambers).

requires federal courts to defer to a state court’s

application of clearly-established federal law, so

long as the state court’s decision is objectively

reasonable. 28 U.S.C. § 2254(d)(1); Williams, 529

U.S. at 409-10. Federal habeas courts also must

presume the correctness of state-court factual

findings, including the reasonable inferences drawn

from those facts. 28 U.S.C. § 2254(e)(1); Parke v.

Raley, 506 U.S. 20, 35 (1992). This deference is

warranted “to further the principles of comity,

finality, and federalism.” Duncan v. Walker, 533

U.S. 167, 178 (2001) (quoting Williams, 529 U.S. at

436).

Here, the First Circuit overturned a well-

reasoned decision of the Massachusetts SJC and

substituted its own evaluation of the evidence for

the SJC’s evaluation of the same evidence. In so

doing, the First Circuit exceeded its statutory

authority under AEDPA.

In addition, the legal standard applied by the

First Circuit to the underlying sufficiency-of-the-

evidence question conflicts with the standard

established by this Court in Jackson v. Virginia,

443 U.S. 307 (1979). In its June 10, 2009 opinion,

the First Circuit held that the evidence against

O’Laughlin was constitutionally insufficient,

stating that “‘[a]lthough circumstantial evidence

alone can support a conviction, there are times that

it amounts to only a reasonable speculation and not

to sufficient evidence. ... This is such a case.”

O’Laughlin ITI, 568 F.3d at 302 (quoting Newman

v. Metrish, 543 F.3d 793, 796 (Gth Cir. 2008),

petition for cert. filed, Metrish v. Newman, No. 08-

1401, 2009 WL 1370163 (U.S. May 12, 2009)). This

formulation of the legal standard for sufficiency—

which is the subject of another petition for

certiorari currently pending before this Court—is

inherently contradictory and undermines the

established rule that criminal convictions may be

based on reasonable inferences drawn from

circumstantial evidence.

Moreover, the “reasonable speculation”

standard is in direct conflict with Jackson’s

directive that federal habeas courts preserve the

jury’s role as factfinder by viewing all of the

evidence in the light most favorable to the jury’s

verdict. As a matter of practical consequence, the

standard disfavors the use of circumstantial

evidence and places an undue burden on the

prosecution to produce direct evidence of a

defendant’s guilt or face a heightened standard of

evidentiary sufficiency.

This erosion of the Jackson standard is of no

small concern to the administration of justice. A

recent study of habeas petitions filed by state

prisoners pursuant to AEDPA established that 25

percent of federal habeas petitions in capital cases

raised challenges to the sufficiency of the evidence,

and 20 percent of federal habeas petitions in

noncapital cases included sufficiency’ claims.

Nancy J. King, et al., Final Technical Report:

Habeas Litigation in U.S. District Courts,

Vanderbilt University Law School and National

Center for State Courts (2007), available at

www.law.vanderbilt.edu.

This Court has already granted certioran in

Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008),

cert. granted sub nom, McDaniel v. Brown, 129 8.

Ct. 1038 (2009), in which the petitioner seeks

clarification of the _— sufficiency-of-the-evidence

standard applicable on federal habeas review. This

Court should likewise grant certiorari in this case,

and in Metrish v. Newman, to resolve uncertainty

about the application of the Jackson standard and

to prevent federal habeas courts from retrying state

criminal cases on collateral review.

A. This Court Should Grant Certiorari to

Prevent Federal Habeas Retrials of

State Criminal Cases in violation of

AEDPA.

By enacting AEDPA, Congress placed “more,

rather than fewer, limits on the power of federal

courts to grant writs of habeas corpus to state

prisoners.” Miller-El v. Cockrell, 537 U.S. 322, 337

(2003); Garceau, 538 U.S. at 206-07. These added

constraints were intended “to prevent federal

habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible

under law,” Bell, 535 U.S. at 693 (citing Williams,

529 U.S. at 403-04).

AEDPA prohibits federal courts on habeas

review from overturning a state court’s reasonable

application of clearly-established federal law. See

28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 409-

10. Under AEDPA, “an unreasonable application of

federal law is different from an incorrect or

erroneous application of federal law.” Williams,

529 U.S. at 412 (emphasis in original). Thus, a

federal court “may not issue the writ simply

because that court concludes in its independent

judgment that the state-court decision applied [the

law] erroneously or incorrectly.” J/d. at 411;

Woodford v. V'sciotti, 537 U.S. 19, 24-25 (2002) (per

curiam). Rather, the appropriate inquiry is

“whether the state court’s application of clearly

established federal law was objectively

unreasonable.” Williams, 529 U.S. at 409. This is a

“substantially higher threshold” than de novo

review. Schriro, 550 U.S. at 473 (citing Williams,

529 U.S. at 410).

This Court has repeatedly re-affirmed that

§ 2254(d)(1) is binding on federal habeas courts and

that it forecloses habeas relief where a state court

has reasonably applied Supreme Court precedent.

See Uttecht v. Brown, 551 U.S. 1 (2007) (reversing

Ninth Circuit’s grant of habeas relief where state

court reasonably applied Witherspoon-Witt rule to

excusal of juror for cause in death penalty case);

Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)

(reversing Ninth Circuit’s grant of habeas relief

where state court reasonably determined that

defendant was not “in custody” for Miranda

purposes); Mitchell v. Esparza, 540 U.S. 12 (2003)

(per curiam) (reversing Sixth Circuit’s grant of

habeas relief where state court reasonably applied

clearly-established federal law in affirming death

sentence); Lockyer v. Andrade, 538 U.S. 63 (2003)

(reversing Ninth Circuit’s grant of habeas relief

where state court reasonably applied “gross

disproportionality” principle to Zighth Amendment

claim); Visciotti, 537 U.S. at 19 (reversing Ninth

Circuit’s grant of habeas relief where state court

reasonably applied Strickland to _ ineffective-

assistance-of-counsel claim); Karly uv. Packer, 537

US. 3 (2002) (per curiam) (reversing Ninth

Circuit’s grant of habeas relief where “it [was] at

least reasonable [for state court] to conclude” that

there was no jury coercion); Bell, 535 U.S. at 685

(reversing Sixth Circuit’s grant of habeas relief

where state court reasonably applied Strickland to

ineffective-assistance-of-counsel claim).

The fact that the First Circuit “purported to

decide the case under the deferential standard

AEDPA mandates” does not shield its opinion from

review by this Court where the result reached

clearly violates AEDPA’s provisions. Brown uv.

Payton, 544 U.S. 133, 140 (2004). Instead, this

Court looks beyond a circuit court’s mere invocation

of AEDPA’s words and evaluates the substance of

its decision. See, e.g., id. at 147 (reversing grant of

habeas relief where “there [was] no basis for [the

Ninth Circuit's] conclu[sion] that the [state court’s]

application of our precedents was ‘objectively

unreasonable’’); Viscrotti, 537 U.S. at 25 (reversing

prant of habeas relief where Ninth Circuit

recognized that § 2254(d) was applicable but “did

not observe th{e] distinction [between an incorrect

and an unreasonable application of federal law],

[and] ultimately substituted its own judgment for

that of the state court”).

Here, as discussed below, the Massachusetts

SJC’s application of Jackson was_ objectively

reasonable, and the First Circuit “was nowhere

close to the mark when it concluded otherwise.”

Yarborough, 541 U.S. at 665. Certiorari is thus

appropriate because the First Circuit’s decision was

contrary to AEDPA, 28 U.S.C. § 2254(d)(1), and

this Court’s precedents. See Sup. Ct. R. 10(c).

intervention by this Court 1s necessary to prevent

“federal habeas ‘retrials” in sufficiency-of-the-

evidence cases and to ensure that O’Laughlin’s

“state-court convictions are given effect to the

extent possible under law.” Bell, 535 U.S. at 693.

B. This Court Should Grant Certiorari

Because the “Reasonable Speculation”

Standard Finds No Basis in this Court’s

Cases and Threatens to Erode Jackson

v. Virginia.

In its June 10, 2009 opinion, the First

Circuit held that “lajlthough circumstantial

evidence alone can support a conviction, there are

times that it amounts to only a_ reasonable

speculation and not to. sufficient evidence.”

O'Laughlin III, 568 F.3d at 302 (quoting Newman,

543 F.3d at 796) (emphasis added). This Court

should grant certiorari because the “reasonable

speculation” standard, first adopted by the Sixth

Circuit and relied on by the First Circuit in this

case, finds no basis in this Court’s established law.

Further, the term “reasonable speculation” is

inherently contradictory, it permits reviewing

courts to usurp the jury’s role as factfinder, and,

ultimately, it devalues circumstantial evidence, all

in direct conflict with Jackson v. Virginia.

1. The “reasonable speculation”

standard is not clearly-established

law under AEDPA.

As this Court recently reaffirmed, under

AEDPA, a federal court may not grant habeas relief

based on a state’s failure to apply “a specific legal

rule that has not been squarely established by this

Court.” Knowles v. Mirzayance, 129 S. Ct. 1411,

1419 (2009); see also Carey v. Musladin, 549 U.S.

70, 76-77 (2006) (same). The term “reasonable

speculation” is not found in Jackson v. Virginia or

any subsequent Supreme Court opinion. The term

first appeared in a 1981 opinion of the Sixth Circuit

Court of Appeals, Fuller v. Anderson, 662 F.2d 420

(6th Cir. 1981), cert. denied sub nom, Anderson uv.

Fuller, 455 U.S. 1028 (1982), and has come and

gone in the Sixth Circuit’s jurisprudence, appearing

most recently in Newman v. Metrish, 543 F.3d at

796, upon which the First Circuit relied heavily in

this case. The Sixth Circuit’s formulation of the

Jackson standard in Newman is itself subject to a

petition for a writ of certiorari that is pending

before this Court. See Metrish v. Newman, No. 08-

1401, 2009 WL 1370163 (U.S. May 12,. 2009).

Before the First Circuit’s June 10, 2009 opinion, no

other circuit had adopted this language. The

“reasonable speculation” test, to the extent it

departs from the Jackson rule (discussed below),

has not been clearly established by this Court and

cannot form the basis for a grant. of habeas relief.

28 U.S.C. § 2254(d)(1); Knowles, 129 S. Ct. at 1419.

2. The term “reasonable

speculation” is inherently

contradictory and permits

appellate courts to usurp the

jury’s role as factfinder.

The “reasonable speculation” standard

applied in the instant case not only finds no basis

in the Supreme Court’s cases, but, as Chief Judge

Lynch observed in her dissent from the denial of

rehearing en banc, “[t]he ‘reasonable speculation’

standard is materially different from the Jackson

standard in that it prohibits convictions from

resting on reasonable inferences drawn from the

evidence.” O’Laughlin IV, 577 F.3d at 4 (Lynch,

C.J., dissenting from the denial of en banc review).

Under Jackson, “the factfinder’s role as

weigher of the evidence is preserved through a

legal conclusion that upon judicial review all of the

evidence is to be considered in the lght most

favorable to the prosecution.” 443 U.S. at 319

(emphasis in original). Jackson thus permits jurors

“to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jd. (emphasis added);

see also Schlup v. Delo, 513 U.S. 298, 330 (1995)

(the Jackson standard “focuses the inquiry on the

power of the tner of fact to reach its conclusion’);

Herrera v. Collins, 506 U.S. 390, 402 (1993) C[T]he

standard announced [in Jackson] . . . does not

permit a court to make its own _ subjective

determination of guilt or innocence.”) (quoting

Jackson, 443 U.S. at 318-19); Wright v. West, 505

U.S. 277, 296 (1992) (Opinion of Thomas, J.) (“In

Jackson, [this Court] emphasized repeatedly the

deference owed to the trier of fact, and,

correspondingly, the sharply limited nature of

constitutional sufficiency review.”). Here, the

standard applhed by _ the First Circuit

inappropriately strips jurors of the ability to make

a reasonable determination—beyond a reasonable

doubt—that circumstantial evidence in a case

points to a defendant's guilt.

Moreover, “{t]he term ‘reasonable

speculation’ contains an_ inherent _— conflict.

Recognizing that a conclusion rests on speculation

suggests that the inferences upon which it is based

are unreasonable.” O’Laughlin IV, 577 F.3d at 4

n.1 (Lynch, C.J., dissenting from the denial of en

banc review). Thus, the First Circuit’s statement

that a jury’s “reasonable speculation” cannot

amount to sufficient evidence is at best confusing

and at worst encourages appellate courts to

substitute their independent assessment of the

evidence for that of the jury.

A circuit court’s gloss on this Court’s

jurisprudence can stray so far from the underlying

standard as to constitute an error of law. See

Lockyer, 538 U.S. at 75 (holding that the Ninth

Circuit erred by defining “objectively

unreasonable,” as used in Williams vu. Taylor, to

mean “clear error’). In Lockyer, this Court

observed that the Ninth Circuit’s “gloss of clear

error fails to give proper deference to state courts

by conflating error (even clear error) with

unreasonableness.”. 538 U.S. at 75. In lke

manner, the term “reasonable speculation” fails to

give proper deference to the factfinder in

sufficiency-of-the-evidence cases by conflating

reasonable inferences with speculation. This gloss

on the Jackson standard cannot be permitted to

stand, as it “threatens to lead to reversals of state-

court criminal convictions whenever a federal court

chooses to sit as a jury and set aside the lawful

jury’s findings of fact.” Anderson v. Fuller, 455 U.S.

1028 (1982) (Burger, C.J., dissenting from denial of

certiorari). “Jackson did not authorize such gross

interference with the functioning of state criminal

justice systems.” /d.

$. The “reasonable speculation”

standard devalues circumstantial

evidence, unduly disadvantaging

the prosecution in domestic and

acquaintance violence cases.

In addition to intruding on the jury’s role as

factfinder, the “reasonable speculation” standard

“strongly disfavors circumstantial evidence,

contrary to [this Court’s] long-standing recognition

that a criminal conviction may rest— on

circumstantial evidence alone.” O’Laughlin IV, 577

F.3d at 4 (Lynch, C.J., dissenting from the denial of

en banc review); see Desert Palace, Inc. v. Costa,

539 U.S. 90, 100 (2003) (“[Wle have never

questioned the sufficiency of circumstantial

evidence in support of a criminal conviction, even

though proof beyond a _ reasonable doubt is

required.”); Holland v. United States, 348 U.S. 121,

140 (1954) (noting that, in criminal cases,

circumstantial evidence is “intrinsically no

different from testimonial evidence”). As Chief

Judge Lynch noted in her dissent, this “devaluation

of circumstantial evidence .. . has sweeping

implications,” particularly in domestic’ or

acquaintance violence cases, “where the victims,

who often have the only direct evidence of their

abusers’ guilt, are left unable to testify or they

recant or refuse to cooperate.” O’Laughlin IV, 577

F.3d at 4 (Lynch, C.J., dissenting from the denial of

en banc review) (citing T. Lininger, Prosecuting

Batterers After Crawford, 91 Va. L. Rev. 747, 768

(2005) (“Recent evidence suggests that 80 to 85

percent of battered women will recant. at some

point.”)).

Notably, in the majority of cases in which the

Sixth Circuit—the only other circuit court to adopt

the “reasonable speculation” standard—has applied

the standard, it has reversed a_estate-court

determination of a sufficiency claim. See Newman,

543 F.3d at 796 (divided panel affirmed grant of

habeas relief), petition for cert. filed, Metrish v.

Newman, No. 08-1401, 2009 WL 1370163 (U.S.

May 12, 2009); Parker v. Renico, 506 F.3d 444 (6th

Cir. 2007) (unanimous panel affirmed grant of

habeas rehef); Brown v. Palmer, 441 F.3d 347 (6th

Cir. 2006) (same); Fuller v. Anderson, 662 F.2d 420

(6th Cir. 1981) (divided panel affirmed grant of

habeas relief), cert. denied sub nom, Anderson uv.

Fuller, 455 U.S. 1028 (1982). But see Smith v.

Romanowski, No. 07-1578, 2009 WL 1884451 (6th

Cir. July 1, 2009) (unpublished) (divided panel

affirmed denial of habeas relief, with dissent

calling for reversal under “reasonable speculation”

standard); Tucker v. Palmer, 541 F.3d 652 (6th Cir.

2008) (divided panel reversed district court’s grant

of habeas relief, with dissent calling for affirmance

under “reasonable speculation” standard). The

Sixth Circuit’s, and now the First Circuit’s, dilution

of the Jackson standard invites federal courts to

retry state cases on habeas review, contrary to the

deference that Jackson and AEDPA demand.

ci. This Court Should Grant Certiorari

Because the Instant Case is a Good

Vehicle for Clarifying Jackson’s

Application to Circumstantial Cases

and for Re-Affirming AEDPA’s

Restrictions on Federal Habeas Review.

This case well ulustrates the concerns

outlined above. It presents an extremely close case

on the merits of the underlying sufficiency-of-the-

evidence question, as evidenced by the varied court

decisions in this matter. However, the very fact

that reasonable minds could differ regarding the

merits of the underlying constitutional issue makes

it clear that AEDPA constrained the First Circuit

to deny O’Laughlin’s petition for habeas relief. See

Yarborough, 541 U.S. at 664-65 (holding that

AEDPA precluded Ninth Circuit from granting

habeas relief where “fair-minded jurists could

disagree” over whether the defendant was in

custody for Miranda purposes).

This Court has observed that “evaluating

whether a rule application was unreasonable

[under AEDPA] requires considering the Rule’s

specificity. The more general the rule, the more

leeway courts have im reaching outcomes in case-

by-case determinations.” Id. at 664. Here,

O’Laughlin’s underlying challenge to the sufficiency

of the evidence is governed by the standard set

forth in Jackson v. Virginia, namely, “whether,

after viewing the evidence in the lght most

favorable to the prosecution, any rational trier of

fact could have found the essential elements of the

crime beyond a reasonable doubt.” 443 U.S. at 319

(emphasis in original). The standard is a general

one, and, accordingly, its application to a specific

case “can demand a_ substantial element of

judgment.” Yarborough, 541 U.S. at 664. Here,

even a cursory review of the First Circuit’s analysis

reveals that it failed to defer to the SJC’s reasoned

judgments. Simply put, “there [was] no basis for

{the First Circuit’s] conclu[sion] that the [SJC’s]

application of [Jackson] was ‘objectively

unreasonable.” Payton, 544 U.S. at 147.

The First Circuit panel first assailed “the

evidence that O’Laughlin acted upon a financial

motive,” calling it “weak at best.” O’Laughlin IT/,

568 F.3d at 302. The court emphasized that no

items of value were disturbed in the victim’s

apartment. Jd. However, the court overlooked the

fact that “nothing [was] displaced, but the victim’s

purse was on the floor.” O’Laughlin IJ, 446 Mass.

at 194, 843 N.E.2d at 624 (emphasis added).

The First Circuit then dismissed the SJC’s

conclusion that the jury could draw “a reasonable

inference that the defendant was frightened off

before he could steal anything when he heard the

neighbor [speaking on the telephone],” stating that

“no rational juror could conclude that the

placement of this phone call fmghtened [the

assailant] off given the volume and duration of

Mrs. Kotowski’s screams.” O’Laughlin III, 568 F.3d

at 302. The court offered no explanation as to why

the volume and duration of the victim’s screams—

which lasted only about thirty seconds before the

neighbor called the police, O’Laughlin IT, 446 Mass.

at 192, 843 N.E.2d at 622—renders the SJC’s

inference unreasonable. Rather, it is a reasonable

inference—and thus a required inference under

Jackson—that the assailant, upon realzing that

the victim’s screams had roused a neighbor, would

fear that the police could not be far behind. ‘his

inference was further supported by a police

reenactment of the 911 call, which determined that

a person standing in the victim’s bedroom could

hear footsteps and speaking noises from the

apartment above. /d. at 192 n.3, 843 N.E.2d at 622

n.3.

The First Circuit further asserted that the

savage nature of the beating was “inconsistent”

with the purported financial motive for the crime.

O’Laughlin Ill, 568 F.3d at 302. The weight of this

motive evidence was for the jury to assess. Jackson

does not permit the panel to substitute its

judgment for that of the jury on this issue. It was

not irrational for the jury to conclude that

O’Laughlin had a financial motive for entering the

apartment, to wit, that he needed money to buy

more drugs, and that he abandoned that purpose

when the attack on Mrs. Kotowski spiraled out of

control.

Similarly, the First Circuit attempted to

minimize evidence of O’Laughlin’s possession of a

master key to the victim’s apartment, stating that

although “one possible inference” is_ that

©’Laughlin used his key to enter the apartment,

“several others... possessed a master key,” and

“Mrs. Kotowski could have let someone familiar

into her apartment.” Jd. The implication that

these other possibilities detract from the sufficiency

of the prosecution’s evidence is inconsistent with

this Court’s observation in Jackson that the

prosecution is not “under an affirmative duty to

rule out every hypothesis except that of guilt

beyond a reasonable doubt.” 443 U.S. at 326 (citing

Holland, 348 U.S. at 140).

Moreover, individual pieces of evidence

cannot be considered in isolation. The fact that

O’Laughlin possessed a key to the victim’s

apartment becomes much more powerful when

considered alongside the fact that O’Laughlin had

entered the victim’s apartment on a previous

occasion and remarked on the value of her

possessions. In addition, telephone records showed

that O’Laughlin was awake in his apartment—only

two doors away from the victim’s apartment—just

minutes before the victim’s upstairs neighbor heard

screaming, and the neighbor testified that he did

not hear any vehicles enter or leave the area from

the time he first heard screaming until the time the

police arrived. O’Laughlin II, 446 Mass. at 192-93,

199, 843 N.E.2d at 622-23, 627.

The First Circuit also attempted _ to

circumscribe the inferences that could be drawn

from the fact that an aluminum bat, consistent

with the victim’s injunes and bearing O’Laughlin’s

surname, was found outside, a short distance from

the victim’s apartment. Although the panel

correctly pointed out that “any bat likely would

have been consistent with her injuries,” O’Laughlin

II, 568 F.3d at 302, this bat was located only

twenty-five yards from the crime scene, and apart

from some leaves and debris covering the bat, it

was “clean,” permitting the jury to infer that the

bat had recently been cleaned and had not been

outside for a long time. O’Laughlin IT, 446 Mass. at

196, 200, 843 N.E.2d at 625, 627.

With respect to the consciousness-of-guilt

evidence, the court dismissed the importance of this

evidence, even while admitting that “the conflicting

versions O’Laughlin gave the police as to how he

was awoken and his reaction to the police’s request

to swab his closet door when they were searching

his home could be probative evidence linking

O’Laughlin to the crime.” O’Laughlin IIT, 568 F.3d

at 304. According to the First Circuit, “in light of

O’Laughlin’s concerns that the police would

discover his drug use, this evidence was insufficient

to serve as the primary basis upon which the jury

could rely.”. Id. However, as the SJC correctly

noted, O’Laughlin’s reaction to the request to swab

the stain on his closet door “reflected not merely a

general consciousness of guilt, but indicated that

[O’Laughlin] feared that the blood stain could be

that of the victim, a fear he would have only if he

were in fact the perpetrator.” O’Laughlin ILI, 446

Mass. at 196, 200, 843 N.E.2d at 625, 628.

O’Laughlin also made a statement to a friend,

several days after the attack, that “with [my] bad

luck whoever the assailant was... came in with a

Nixon mask and a bat,” Tr. 6/186, indicating a

knowledge of the crime that only the assailant

would have.

The First Circuit also faulted the SJC for

citing the bruises and marks on O’Laughlin’s face

“as evidence from which the jury could infer that an

altercation occurred between O’Laughlin and Mrs.

Kotowski,” stating that “these bruises and marks

have minimal, if any, probative force given the fact

that they were not even noted by Officers ‘Tierney

and Skowron when they were responding to an

assault just minutes after the attack.”. O’Laughlin

ll, 568 F.3d at 304. Yet, in weighing this evidence,

a jury could reasonably discount the fact that the

two officers observing O’Laughlin under nighttime

conditions had overlooked or not understood the

significance of the marks, whereas they were

immediately apparent, and remarkable, to officers

in the light of day when more information was

available. Moreover, a jury could infer from the

bruises and marks that the victim fought back

during the attack, which could have enraged

O’Laughlin into added physical violence.

Finally, the First Circuit placed emphasis on

the fact that “the prosecution had to rely on

circumstantial evidence because no physical or

DNA evidence linked O’Laughlin to the attack

despite the copious amounts of blood at the crime

scene.” Jd. The panel remarked that “[c]onsidering

the large amount of blood, it is difficult to fathom

how O’Laughlin was able to avoid having any blood

or other DiNA evidence connect him to Mrs.

Kotowski.” Id.

The First Circuit’s characterization of the

blood evidence is flawed. A state chemist who

processed evidence at the scene testified that all

the visible blood at the crime scene was contained

in the bedroom. ‘Tr. 6/281-282. According to

officers who responded to the crime scene, the blood

inside the bedroom was mostly confined “to the

carpet and the wall,” Tr. 2/199-200, and the

bloodstains on the walls were “smears,” Tr. 2/243,

which were “mostly in the area of the floor or just

lower up on the door jams [sic].” Tr. 2/246. Based

on this evidence and on photographs from the

scene, the prosecution was able to argue in closing

that, despite copious amounts of blood on the floor,

there was “hardly any” spatter on the walls. Tr.

9/76-77. Thus, it was reasonable for the jury to

infer that most of the blood that the police observed

at the scene accumulated while the victim lay

bleeding in the hours following the attack, long

after the assailant had left. More importantly,

since no blood was found on any of the wall-to-wall

carpeting in any of the halls or rooms beside the

bedroom, nor on either of the doors leading out of

the apartment, Tr. 6/281-282, the reasonable

inference was that the assailant had little or no

blood on him after the attack.

Moreover, to the extent the First Circuit

imposed a requirement that the prosecution

present physical or DNA evidence to convict

O’Laughlin, such a requirement is contrary to the

law of this Court and the panel’s own recognition

that a conviction may rest solely on circumstantial

evidence. O’Laughlin III, 568 F.3d at 302; see

Desert Palace, Inc., 539 U.S. at 100; Holland, 348

U.S. at 140.8

5 In addition, to the extent the panel imphed that the

prosecution was required to disprove O Laughlins theory that

the victim's estranged husband committed the = attack.

O'Laughtlin U7, 568 F.3d at 308 (noting the “compelling third-

party evidence”), this is also contrary to Jackson, 443 US. at

326 Viewing the evidence in the light most favorable to the

prosecution means recognizing that the jury could reject

O'Laughlin’s third-party culprit evidence. See Sehlup. 513

US at 330 ((Ujnder Jackson. the assessment of the

credibility of witnesses is generally beyond the scope of

review. ). Here. the third-party evidence only estabhshed a

motive on the husband's part. The other evidence tended to

Perhaps the best indicator that this was a

close case, requiring deference to the SJC, is that

the First Circuit panel itself was divided as to what

aspects of the SJC opinion were unreasonable

under AE DPA:

This is not to say that each of us is

convinced that the state court’s

decision is unreasonable in every

respect. But this case comes to us on

arguments as presented by the

parties. This panel may not be in

complete unanimity in all particulars,

but we do agree that [O’Laughlin] has

the better of the argument with

respect to the means_ evidence

introduced by the prosecution at trial.

O’Laughlin IIT, 568 F.3d at 302 n.19. In sum,

because “fair-minded jurists” could (and did) differ

about whether the SJC’s opinion was in error,

under AEDPA, the First Circuit was required to

defer to the SJC’s reasoned judgment and to affirm

the district court’s denial of habeas relief.

Yarborough, 541 U.S. at 664-65.

The costs of permitting the First Circuit to

bypass AEDPA’s restrictions in this case would be

extremely high. Habeas review, by its very nature,

“entails significant costs.” Engle v. Isaac, 456 U.S.

107 (1982). “Among other things, ‘fiJt disturbs the

State’s significant interest in repose for concluded

negate his opportunity to commit the cmme See

Commonwealth's Brief to the SJC, Supp. Ans., Ex. L at 15-17

(summarizing third-party evidence)

litigation, denies society the right to punish some

admitted offenders, and intrudes’ on _s state

sovereignty to a degree matched by few exercises of

federal judicial authority.” Wright, 505 U.S. at 293

(Opinion of Thomas, J.) (quoting Duckworth ov.

Eagan, 492 U.S. 195, 210 (1989) (O’Connor, J.,

concurring)). In sufficiency cases such as this, the

friction engendered between the state and federal

justice systems is intensified by the fact that double

jeopardy principles bar retrial of a _ petitioner

granted habeas relief. This exacts a significant toll

on the interests of federalism and comity, and it

upsets expectations—particularly of victims—in

relation to the finality of state-court criminal

proceedings.

Moreover, this is not an isolated problem.

This Court is currently presented with at least two

other cases in which it is claimed that a federal

appellate court exceeded its authority on habeas

review by overturning a state-court determination

of evidentiary sufficiency. See Newman, 543 F.3d

at 796, petition for cert. filed, Metrish v. Newman,

No. 08-1401, 2009 WL 1370163 (U.S. May 12,

2009); Brown v. Farwell, 525 F.3d at 787, cert.

granted sub nom, McDaniel v. Brown, 129 S. Ct.

1038 (2009). Certiorari is warranted in this case,

as in Metrish v. Newman and McDaniel v. Brown,

to resolve uncertainty about the application of the

Jackson standard and to prevent federal retrials of

state criminal cases in the guise of habeas review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARTHA COAKLEY

Attorney General for the

Commonwealth of

Massachusetts

JESSICA V. BARNETT*

JAMES J. ARGUIN

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108-1598

(617) 727-2200

*Counsel of Record

Counsel for Petitioner

October 21, 2009

APPENDIX

APPENDIX A

[Published at: 568 F.3d *287]

United States Court of Appeals,

First Circuit.

Michael O’7LAUGHLIN, Petitioner, Appellant,

Vv.

Steven O’BRIEN, Superintendent, Old Colony

Correctional Center, Respondent, Appellee.

No. 08-1010.

Heard Sept. 12, 2008.

Decided June 10, 2009.

a FP

*289 Kenneth I. Seiger, for appellant.

Scott A. Katz, Assistant Attorney General,

Criminal Bureau, with whom Martha Coakley,

Attorney General, was on brief for appellee.

Before TORRUELLA, BALDOCK,F* and

HOWARD, Circuit Judges.

FN* Of the Tenth Circuit, sitting by

designation.

TORRUELLA, Circuit Judge.

On the morning of November 17, 2000,

Annmarie Kotowski (“Mrs. Kotowski’) was found in

her apartment severely beaten and covered in

blood. She survived, but could not remember the

details surrounding the attack or the person who

attacked her. After an _ investigation, police

identified Petitioner-Appellant Michael O’Laughlin

as the perpetrator.

A Massachusetts Superior Court jury

subsequently convicted O’Laughlin of the following

counts: (1) burglary and armed assault in a

dwelling; (2) armed assault in a dwelling; (3) armed

assault with intent to murder; and (4) assault and

battery by means of a dangerous weapon. The

Superior Court then sentenced O’Laughlin to 35-50

years on Counts One and Two; 19-20 years on

Count 3; and 9-10 years on Count 4, ruling that the

sentences were to be served concurrently. The

intermediate Massachusetts Appeals Court

reversed the judgments holding that there was

insufficient evidence to support the verdicts.

Commonwealth v. O’Laughlin, 63 Mass. App. Ct.

805, 830 N.E.2d 222 £(2005) = (hereinafter

“O’Laughlin TI’). The Massachusetts Supreme

Judicial Court (“SJC”) reinstated the judgment

reasoning that there was sufficient evidence to

support the verdicts. Commonwealth v. O’Laughlin,

446 Mass. 188, 843 N.E..2d 617 (2006) (hereinafter “

O’Laughlin Ll “).

*290 O’Laughlin filed a petition for a writ of

habeas corpus in the United States District Court

for the District of Massachusetts on grounds that

(1) the SJC’s ruling was objectively unreasonable

because there was insufficient evidence to support

a guilty verdict and (2) that the SJC violated his

constitutional right to present a defense. The

district court denied O’Laughlin’s petition for

habeas relief. After careful consideration, we

reverse the judgment of the district court and order

the district court to grant the petition.

I. Background

A. Factual Summary

“We must ‘accept the state court findings of

fact unless [O’Laughlin] convinces us, by clear and

convincing evidence, that they are in error.’ “

Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006)

(quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st

Cir. 2002) (en banc)); see also 28 U.S.C. §

2254(e)(1). We note that the SJC’s findings of fact

may be “supplemented with other facts from the

record that are consistent with the SJC’s findings.”

Lynch, 438 F.3d at 39; see also Healy v. Spencer,

453 F.3d 21, 22 (1st Cir. 2006). Thus, we recount

the facts largely as they were presented in the

SJC’s opinion.

In May 2000, Mrs. Kotowski revealed to

David Kotowski (““Mr. Kotowski’), her husband of

over twenty-five years, that she was romantically

involved with James Finn. In September 2000,

Mrs. Kotowski moved out of her home into the Fox

Hollow condominium complex in a neighboring

town.FN! She resided alone. O’Laughlin, a member

of Fox Hollow’s maintenance staff, lived two doors

down from Mrs. Kotowski. Like other members of

the maintenance staff, he possessed a master key to

all the buildings on the property, including a key to

Mrs. Kotowski’s apartment.FN2

FN1. The SJC indicated a “difficult”

marital situation: “Both the victim

and her husband characterized their

relationship as friendly but strained.

(Other witnesses described _ the

husband’s attitude as alternating

between loving and angry.)”

Approximately a week before the

attack, she conversed for the first time

with her husband about the possibility

of getting a divorce. Mrs. Kotowski

testified that Mr. Kotowski was

“crushed” by the move.

FN2. O’Laughlin had been inside Mrs.

Kotowski’s apartment at least once

previously in September to fix a

window, among other tasks.

The SJC noted that O’Laughlin “took some

interest” in Mrs. Kotowski prior to the attack. For

example, when Mrs. Kotowski’s sister was visiting,

O’Laughlin stood outside her apartment and asked

Mrs. Kotowski if there were “any more good looking

women in there[.]” Also, he referred to Mrs.

Kotowski five or six times in conversations with

acquaintances, citing her “beautiful antique

furniture” in her apartment as evidence of her

wealth and remarking that he was attracted to her

“body type.” FN3

FN3. In addition, the SJC states that

just days before the attack, one

acquaintance testified that O’Laughlin

had “really scared” Mrs. Kotowski by

inquiring “about the window in her

apartment.” However, once Mrs.

Kotowski realized he was on the

maintenance staff, she simply walked

away.

The day before the attack, O’Laughlin

cashed a $457.16 paycheck and made $200 child

support payment to his ex-wife. Also, the SJC

stated that O’Laughlin was agitated when he was

unable to sell his trailer to his neighbor because the

neighbor could not come up with $500. The

neighbor paid him the next day.

On the night of the attack, the SJC described

O’Laughlin as “[nJervous, jittery, [and] paranoid....”

This was “typical behavior when he smoked crack

cocaine,” which O’Laughlin had done earlier *291

that evening at the home of a frend, Mark Puleri.

As the mght wore on, O’Laughlin was

“depleted of drugs and most of his cash.” At 9:00 or

9:30 p.m. that evening, O’Laughlin, now at home

alone, telephoned another friend, Grover Finkle,

asking him for a ride to purchase drugs. Finkle,

who was at Richard O’Leary’s house, had

previously smoked crack cocaine with O’Laughlin

and knew a drug dealer. Finkle and O'Leary, a

taxicab driver, arrived at O’Laughlin’s apartment

an hour later. However, they soon left without

giving O’Laughlin a ride because O’Laughlin was

unable to secure money for cab fare.FN4

FN4. O’Leary refused to drive unless

O’Laughlin provided him with an

advance payment.

In the early morning hours of November 17,

between 12:10 and 1:43 a.m., fourteen telephone

calls were placed to or from O’Laughlin’s

apartment. The majority of these calls were placed

to known drug dealers.

Shortly before 2:00 a.m. George Whittemore,

a neighbor living directly above Mrs. Kotowski,

awakened to a woman screaming directly below

and the sound of “wood hitting wood.” According to

Whittemore, a carpenter by profession, these

sounds lasted for about thirty seconds.

Whittemore dialed 911 at 1:55 a.m. He

stayed awake until the police arrived and flashed

his apartment lights to indicate his apartment to

the police. Between the time he called 911 and

when the police arrived, Whittemore did not hear

any vehicles arrive or depart from the area. The

police later conducted a reenactment of the 911

call. Based on this reenactment, they concluded

that a person standing in Mrs. Kotowski’s bedroom

could have heard Whittemore’s footsteps as he

walked to the telephone as well as Whittemore’s

voice, but would have been unable to make out

what was being said.

Officers William Tierney and_ Phillip

Skowron arrived six or seven minutes after

Whittemore’s 911 call. They were unable to find

apartment number 202, the apartment reported in

the dispatch, because the apartment numbers at

the complex had been recently renumbered. They

did not note anything unusual, but observed

O’Laughlin walking from the building on a

walkway leading from apartment number 19.

O’Laughlin was wearing only boxer shorts and

Officer Tierney testified that O’Laughlin appeared

‘Impervious’ to the near-freezing temperature.

O’Laughlin questioned the officers regarding

what had happened and the officers answered that

they were responding to a report of a woman

screaming. When they asked him if he had heard

any screaming, O’Laughlin replied that he had

been awakened by screaming, but believed it to be

a raccoon trapped in a dumpster.FN5 O’Laughlin

explained that he had placed a stick in the

dumpster so that it could escape. Officer Tierney

then looked inside the dumpster and saw a stick,

but no animal. The SJC noted that during his

conversation with the officers, O’Laughlin seemed

“uneasy and distant,” not making eye contact with

them. The police further searched the area, but left

after finding nothing suspicious.

FN5. O’Laughlin’s supervisor testified

that the complex had been having

problems with raccoons getting caught

in the dumpster.

Whittemore testified that throughout the

night he heard a woman moaning and crying

directly below him.’N® He also testified that later in

the morning, he heard the *292 sound of glass

breaking, banging, and a man outside Mrs.

Kotowski’s apartment calling her name. The man

subsequently yelled “Oh, my God.”

FN6. Although he heard these sounds,

Whittemore did not contact the police

again that night.

The man Whittemore was referring to was

Mrs. Kotowski’s boyfriend, Finn, who had arrived

at 5:45 a.m. at Mrs. Kotowski’s apartment. On

weekdays, Finn routinely joined Mrs. Kotowski for

a morning coffee prior to starting his workday. On

this particular morning, when Finn knocked on the

door, he only heard her say, “Who is it?” in a

strange voice. After failing to reach her from a

nearby public telephone, Finn testified that he

forced open a locked sliding glass rear door.

Although the living room appeared to be in order,

he found Mrs. Kotowski lying on the floor next to

the bed. He testified that “there was just blood

everywhere.” Finn dialed 911 just before 6:30 a.m.

Mrs. Kotowski, who had severe wounds on her

head, was taken to Berkshire Medical Center. The

police ruled out Finn as a suspect because of his

alibi (which they confirmed), his reaction of shock

upon discovering Mrs. Kotowski, and _ his

cooperation with the police.

Officers who arrived after Finn’s 911 call

observed blood in the victim’s bedroom on the bed,

the pillow, the floors, the walls, and on the door

jambs of the bathroom and bedroom. The SJC

noted that the crime scene contained “ ‘quite a bit

of blood’ that appeared to be ‘splatters’ on the

comforter.” Further, the bed rail was dented, with

wood splinters on the ground beneath the dent.

Officer Skowron testified that everything else was

intact as the apartment was neat and nothing was

displaced. Mrs. Kotowski’s purse was on the floor,

however. Officer Skowron also testified that there ~

were no signs that the front door or the rear sliding

door had been forced open (which contradicted a

report by an earlier officer on the scene stating that

the rear door was broken); that the drawers were

closed; and that the light and figurines on the

dresser were upright. Mrs. Kotowski testified that

no items of value were missing from the apartment.

‘hese items, which were in plain view on top of the

dresser, included diamonds, pearls, and an

expensive watch in the bedroom. Also, Mrs.

Kotowski’s purse contained her credit cards, about

$28 in cash, and a checkbook. There was $522 in

cash in a dresser drawer.

Constance Cappel, a neighbor who lived in

the apartment between O’Laughlin and Mrs.

Kotowski, testified that she heard voices outside

Mrs. Kotowski’s apartment at about 6:45 a.m.

Cappel went outside and saw Mrs. Kotowski being

loaded into an ambulance. She _ knocked on

O’Laughlin’s door and told him that she thought

someone had been murdered. O’Laughlin, who

answered the door in his boxer shorts and looked

like he had just awoken, responded “What do you

want me to do about it?”

At 8:45 a.m. O’Laughlin came out of his

apartment dressed for work, approached one of his

co-workers and Cappel, and inquired about what

was happening. After his co-worker explained the

situation, O’Laughlin described his encounter with

the police the previous night and how he had been

awakened by the police cruisers. O’Laughlin also

informed his co-worker that he told the police that

10a

he thought raccoons had been in the dumpster

making a “kind of squealing sound.”

At about 9:40 a.m., Officers Tierney and

Todd Briggs talked with O’Laughlin outside the

apartment building and Officer Tierney noticed a

“scratch or a dig mark in [O’Laughlin’s] left cheek,

[a] small cut on his chin and a round, circular

bruise ... just below his left car.” Officer Tierney

was unsure about how fresh these marks were.

The SJC remarked that although O’Laughlin

was initially “reluctant,” he *293 agreed to give a

statement at the police station when informed that

Officer Tierney would conduct the interview.

O’Laughlin arrived at the station at 10:40 a.m., but

was told by Chief Ronald Glidden to wait for Officer

Tierney, who had yet to arrive. Officer Tierney

arrived twenty minutes later and told O’Laughlin

that he would be “right with him.” However, when

he returned five minutes later, O’Laughlin had

left.?N7

FN7. O’Laughlin’s co-worker testified

that O’Laughlin went back to the

apartment complex and told him the

person O’Laughlin was supposed to

meet was not there. After discussing

the matter further, O’Laughlin

decided to go back to the police station

accompanied by his co-worker.

O’Laughlin returned to the police station

twenty minutes later and was interviewed by Chief

Glidden for about ten minutes. Chief Glidden

testified that O’Laughlin “seemed agitated” during

lla

the interview. In his statement to Chief Glidden,

O’Laughlin stated that he had been “drinking

before he went to bed and he just didn’t think he

was awake until he heard the cruisers at

approximately two o'clock.” He thought he may

have heard foxes or raccoons before that, but was

uncertain. O’Laughlin said that he had “seen [the

victim] around,”; that he and a friend had joked

about her boyfriend; and that he had been in that

apartment to repair a window. After the interview

concluded, he went home.

State Troopers David Buell and Brian Berkel

arnived at the complex around noon. ‘l'rooper Buell

spoke to O’Laughlin, who stated that he had been

out with his friend, Puleri, the previous night,

returned at 10:30 p.m., went to sleep around 11:30

p.m., and was awakened by screaming, which he

thought was a fox fighting with a _ raccoon.

O’Laughlin said that a short time later the police

arrived and he went out to speak with them. After

the officers left, he slept until 7:30 a.m., when he

was awakened by his neighbor, who had informed

him that there had been a murder.

Trooper Buell asked O’Laughlin for consent

to search his apartment in order to eliminate him

as a suspect and because his apartment was in

close proximity to Mrs. Kotowski’s apartment.

O’.aughhin consented, and allowed ‘Trooper Berkel

to take photographs and two police chemists to

search for blood stains. Trooper Berkel

photographed a red stain on a closet door near the

kitchen area. A chemist who saw the stain asked

O’Laughlin if his consent’ included taking

swabbings. O’Laughlin responded that it did not.

12a

Soon thereafter, O’Laughlin asked the officers to

leave his apartment.

Outside the apartment, the police decided to

apply for a search warrant. They returned to

O’Laughlin’s apartment and informed him of their

intent to secure the apartment and obtain a

warrant. O’Laughlin replied that they did not need

to pursue a warrant because he would allow them

back into the apartment. He also told the officers

that he had wiped the red stain off the closet door

with his finger, and thought it was his own blood,

but was not certain. O’Laughlin told the police that

he was concerned about a search because he was

afraid police would find his drug paraphernalia and

because he possessed money that he did not want

taken. Trooper Buell asked O’Laughlin to give him

the drug paraphernalia, telling him that he would

not be charged with drug possession.

When the chemists’ returned to the

apartment, the red stain on the closet door was

gone. However, the area, where the stain had been,

tested positive for the presumptive *294 presence

of blood. The chemists collected a sample by

swabbing.'N8

FN8. Chemists also collected swabs

from two small, red-brown stains in

the apartment that tested positive for

the presumptive presence of blood,

and cuttings of what appeared to be

blood from O’Laughlin’s bed comforter.

O’Laughlin handed over to the police

the clothes he said he wore the

l3a

previous night and permitted the

chemist to examine his boots.

A state trooper searched the area

surrounding the apartment complex with a dog

trained to search by scent. The dog found an

aluminum bat about twenty-five yards away from a

building’s dumpster in the woods. It appeared to be

covered in leaves and debris, but was otherwise

clean. O’Laughlin’s name was inscribed on the bat.

On November 20, O’Laughlin called a friend

and informed him that he was a suspect in the

assault. The SJC noted that O’Laughlin was

“upset” while he told his friend that he was “very

happy that {[Mrs. Kotowski] had survived ... [s]o

that she could identify her assailant,” but with his

bad luck the assailant could have been wearing a

“Nixon mask” and entered with a baseball bat.

Later that day O’Laughlin was arrested.

While in custody, O’Laughlin told an inmate that

although he owned the bat, he last saw it when he

moved into his apartment.FN®

IN9. At booking, O’Laughlin

remarked during his photograph that

the mark on his face was a pimple.

Trooper Michael Hill thought it was a

blemish or an injury.

The police recovered fourteen fingerprints

and one palm print from Mrs. Kotowski’s

apartment, none of which matched those of

O’Laughlin.FN!° In addition, footprint impressions

taken at the apartment did not match O’Laughlin's

l4a

boots. State Police Lieutenant Brian O’Hara,

trained in fingerprint analysis and _ bloodstain

patterns, opined that a blood stain on Mrs.

Kotowski’s pillow was caused by the transfer of

blood from a person’s right hand, but the handprint

was unidentifiable. He testified that the hand had

to have had a significant amount of blood on it, not

all of which would have been transferred.

FN10. Twelve of these prints were

identifiable and excluded O’Laughlin;

two were unidentifiable; and one was

identifiable, but police could not match

it to any known prints.

A state police chemist examined _ the

aluminum bat found in the woods. Three small

reddish brown stains on the bat tested positive for

the presumptive presence of blood, only one of

which tested positive for human blood. The three

stains were swabbed and sent to the DNA unit for

further testing. There was contamination in the

DNA lab, and thus the tests consumed all the

testable material without yielding results. An

additional cutting from tape on the bat’s handle, an

area where the presumptive presence of blood could

still be detected, was submitted to the laboratory. A

state police DNA analyst concluded that while Mrs.

Kotowski could not be excluded as a contributor,

one in two of any randomly selected individuals

could have been the contributor. FN!!

FN11. Because of the contamination,

only the following samples’ were

deemed adequate for further testing:

blood on Mrs. Kotowski’s bathroom

15a

floor; a stain on the wall behind

O’Laughlin’s dresser; and two cuttings

from O’Laughlin’s comforter. Of these

samples, it was concluded that all of

the blood found in O’Laughlin’s

apartment belonged to him, and

O’Laughlin was excluded as a possible

contributor to the sample of blood

taken from Mrs. Kotowski’s bathroom.

A surgeon who performed reconstructive

surgeries on Mrs. Kotowski after the attack

testified that she had sustained between fifteen to

twenty blows that broke *295 nearly every bone in

her face and skull. The only exception was her jaw.

She also had defensive wounds on her hands

caused by five to ten blows. The surgeon gave an

opinion that Mrs. Kotowski’s injuries were cased

by a long, sturdy, hard, round object, consistent

with an aluminum bat that was recovered in the

woods on the day of the attack.

B. Procedural History

In December 2000, A Berkshire County

grand jury charged O’Laughlin with four offenses:

(1) burglary and armed assault in a dwelling, see

Mass. Gen. Laws ch. 266, § 14; (2) armed assault in

a dwelling, see Mass. Gen. Laws ch. 265, § 18A; (3)

armed assault with intent to murder, see Mass.

Gen. Laws ch. 265, § 18(b); and (4) assault and

battery by means of a dangerous weapon, see Mass.

Gen. Laws ch. 265, § 15A(b).

16a

Following a nine-day jury trial in May 2002,

O’Laughlin was convicted of all four charges.

O’Laughlin appealed.

1. The Massachusetts Appeals Court Opinion

On appeal, the Massachusetts Appeals Court

concluded that there was insufficient evidence to

support the jury’s verdicts. The Appeals Court

stated that while the government’s’ evidence

demonstrated that O’Laughlin had a motive of

robbery, an opportunity to commit the crime, a

means to commit the crime, and a consciousness of

guilt, the evidence was not enough to establish

guilt. The Appeals Court concluded that “[nJothing

in the record sufficiently links the defendant to the

crime to permit the conclusion beyond a reasonable

doubt that he was the perpetrator” and that

“[philing inference upon inference does not amount

to proof beyond a reasonable doubt.” O’Laughlin J,

830 N.E.2d at 231-32. In reaching its conclusion,

the Appeals Court noted that the bat was only

“consistent” with the weapon used in the attack;

that O’Laughlin’s les to the police concerning his

whereabouts and his removal of the stain from his

closet door, “while certainly permissible to show a

guilty conscience, cannot fill the gap in the proof of

identity’; that O’Laughlin did not show physical

strain in his appearance and demeanor when

confronted by the police just about twelve minutes

after the attack, which would have been consistent

with someone who had just committed such a

“brutal” attack; and that the third-party culprit

evidence in this case detracted from _ the

government's case. /d. at 232-34. Thus, the Appeals

17a

Court reversed O’Laughlin’s convictions and

directed that judgments be entered in his favor.

2. The SJC Opinion

The Commonwealth then sought and

received further appellate review from the SJC.

The SJC concluded that the evidence against

O’Laughlin had been sufficient and affirmed his

convictions, stating that circumstantial evidence of

motive, opportunity, means, and consciousness of

guilt “permissibly convinced the jury of the

defendant’s guut.”. O’Laughlin IT, 843 N.E.2d at

627.

The SJC stated that the jury could

permissibly find that O’Laughlin’s motive to break

into Mrs. Kotowski’s apartment was robbery. /d. It

pointed to the fact that O’Laughlin had taken drugs

twice previously on the night of November 16, had

“run out” of drugs and money, and was calling

around as late as 1:43 a.m. to purchase drugs,

which the SJC noted was “only twelve minutes

before the victims’ upstairs neighbor telephoned

the police department to report screams and

banging sounds from downstairs.” /d.

The SJC further noted that O’Laughlin had

previously entered the victim’s apartment *296 and

“had reason to believe that she was wealthy and

might have cash or valuables.” /d. The SJC

commented that O’Laughlin “needed money

immediately and the victim was a nearby and

likely source.” /d. Accounting for the fact that

nothing was taken from the apartment, the SJC

pointed to a_- reenactment during trial

18a

demonstrating that the neighbor could be heard in

the apartment below when he called the police. The

SJC concluded that “[i]t is a reasonable inference

that the defendant was frightened off before he

could steal anything when he heard the neighbor

speaking.” Jd. at 627 n. 11.

The SJC also concluded that O’Laughlin had

the opportunity to commit the crime because he

resided only two apartment doors away from Mrs.

Kotowski and that he had a master key which gave

him access to her apartment. /d. at 627. In

addition, the SJC_ pointed to Whittemore’s

testimony that he did not hear any cars going to or

from the apartment complex in the interval

between when he first heard the screaming and

when the police arrived. Jd.

The SJC also reasoned that O’Laughlin had

the means to commit the crime by stating that the

aluminum bat was found a short distance from

Mrs. Kotowski’s apartment complex. Jd. The SJC

stated that “(t]he jury would certainly be

warranted in concluding that the bat was the

defendant's.” /d. The SJC explained that “[h]is

surname, not a common one, was visible on the bat

handle and he mentioned to someone in jail that he

was the owner of the bat the police had found.” Jd.

The SJC further noted, however, that although the

bat was covered by some leaves and debris, it was

otherwise “clean” when discovered. 7d. It also

acknowledged O’Laughlin’s statement that he had

not seen the bat since the day he had moved into

his apartment. /d. at 627 n. 12.

19a

Most notably, the SJC indicated the

significant evidence pointing to O’Laughlin’s

consciousness of guilt. /d. at 627. First, the SJC

referenced O’Laughlin’s demeanor when the police

first arrived on the scene and_ discovered

O’Laughlin outside in his “boxer shorts in near

freezing temperature.” Jd. The SJC noted that

when he talked with the police, he was “uneasy and

distant” and did not make eye contact with the

police officers. Jd. Also, the SJC remarked that the

differing versions O’Laughlin gave to police as to

the reason he woke up was indicative of his

untruthfulness.FN!2 Jd. at 627-28. The SJC further

noted that O’Laughlin reluctantly participated in

an interview with the police ar.d seemed “agitated”

when he spoke with them. /d. at 628.

FN12. The SJC stated that O’Laughlin

lied to the police when he told them

that he was awakened by _ the

screaming, but his telephone records

show that he was making phone calls

until twenty minutes before the police

arrived on the scene. He later told the

police that the police cruisers woke

him up. Also, he told the police in an

another interview that he went to bed

at 11:30 p.m., awoke to screaming that

he believed were animals fighting,

went back to sleep and awoke to his

neighbor’s knock on his door who was

there to inform O’Laughlin that Mrs.

Kotowski was severely beaten. /d. at

627-28.

20a

Moreover, the SJC pointed to O’Laughlin’s

reaction to the police’s request when they asked for

a swabbing of the red stain in the closet door of his

apartment. Jd. Although O’Laughlin later allowed

the police to return, the stain was gone and

O’Laughlin admitted to having removed it with his

finger, saying that he believed that it was his own

blood. The SJC conciuded that “[t]his evidence

reflected not merely a general consciousness of

guilt, but indicated that the defendant feared that

the blood stain could be that of the *297 victim, a

fear he would have only if he were in fact the

perpetrator.” Jd.

Finally, the SJC pointed to the fact that

O’Laughlin had “a ‘scratch or dig mark’ on his

cheek, a small cut on his chin and a bruise on his

neck.” Jd. While acknowledging that the police

officer could not discern whether the marks were

“fresh,” the SJC concluded that “it could be inferred

that the injuries were sustained during a physical

encounter with the victim.” Jd.

In sum, the SJC stated that the evidence

taken together “was sufficient to permit the jury to

determine beyond a reasonable doubt that the

defendant was the perpetrator of the vicious attack

on the victim.” Jd.

In reversing the lower appellate court

decision, the SJC distinguished its case law in

Commonwealth v. Mazza, 399 Mass. 395, 504

N.E.2d 630 (1987), stating that in the instant case

the prosecution “presented more evidence linking

[O’Laughlin] to the assault.” O’Laughlin II, 843

N.E.2d at 629. Furthermore, the instant case

2la

contained evidence of means as represented by the

aluminum bat, “significantly stronger evidence of

consciousness of guilt,” bruises on O’Laughlin’s

face, and the fact that OLaughlin was wearing only

boxers when the police found him, which “would be

consistent with his having disposed of bloody outer

garments.” Jd. With respect to O’Laughlhin’s attire,

the SJC added that “[t]he jury could find that, had

the defendant gone outside to check for animals in

the dumpster (as he claimed), it was implausible

that he would have done so without putting on at

least minimal clothing, not only for purposes of

protection against the cold but also for purposes of

decency.” Id.

The SJC disagreed with the weight placed by

the Appeals Court on the fact that O’Laughlin “did

not manifest any signs of recent physical exertion

(sweat, shortness of breath, wet hair or disarray)”

twelve minutes after the attack. Jd. at 629 n. 13.

The SJC stated that this did not detract from the

government’s case because twelve minutes after the

attack there would be no reason for O’Laughlin to

show signs of this physical exertion. /d.

Also, the SJC disagreed with the Appeals

Court that the third-party culprit evidence

presented in this case detracted from. the

government's argument or affected the sufficiency

of the evidence because it was not “so

overwhelming that no rational jury could conclude

that the defendant was guilty.” Jd. at 630. The SJC

stated that the third-party culprit evidence “simply

tended to contradict the Commonwealth’s evidence;

it did not show it to be incredible or conclusively

22a

incorrect.” FNS Jd. (internal quotation marks

omitted).

FN13. The SJC noted O’Laughlin’s

third-party culprit evidence in a

footnote:

The defense sought to portray the

victim’s husband, from whom she

had recently separated, as_ the

third-party culprit. The husband

was aware of the wife’s new address

and that she was involved with

another man. The victim described

the husband as being “upset” but

not angry about this relationship.

Others said the husband alternated

between being “nice” and verbally

abusive. The husband testified that

he was at home at the time of the

assault and that he received two

telephone calls just before 6 a.m.

Each time his “caller ID” indicated

the source of the call as the victim’s

apartment, but no one was on the

line. He dialed the number, and a

man answered. One witness

thought he saw the husband's car in

his workplace parking lot at

approximately 6 am. on _ the

morning of the attack, but a

neighbor saw the husband’s car

parked at home at 6:20 a.m. The

husband was generally cooperative

with the police, but did not permit

the police access to “personal”

23a

letters to his wife. Tests indicated

the presumptive presence of blood

on one of the husband’s forearms on

the day of the attack. On the

evening of November 17, the police

observed garbage bags on the floor

of the husband’s garage and dark

clothing in a clothes dryer. Two wet

towels strongly smelling of bleach

were found in a plastic bag in the

trunk of the husband's car. One of

the towels was the same as towels

found in the victim’s linen closet.

The husband explained that the

towels smelled because he did not

know how to do laundry and had

used too much bleach on them. He

said he brought them on a hunting

trip the previous weekend and had

forgotten them in the trunk.

Finally, the husband kept wooden

baseball bats and other athletic

equipment in his garage.

Id. at G30 n. 14.

*298 3. O’Laughlin’s Habeas Petition

In his habeas petition before the district

court, O’Laughlin alleged that (1) the evidence at

trial was insufficient to prove that he was a

perpetrator of the offenses for which he was

convicted; and (2) the trial court violated his mght

to present a defense by excluding a handwritten

note that, according to O’Laughlin, supported his

third-party culprit defense. After briefing by the

24a

parties and a non-evidentiary hearing, the district

court denied O’Laughlin’s petition reasoning that

“like the courts that have looked at this cold record

before me, this is a close question. But the petition

must be under federal law denied.”

O’Laughlin then filed a timely notice of

appeal and requested a Certificate of Appealability

(“COA”) as to his sufficiency and right-to-present a

defense claims. The district court granted a COA

with respect to both issues.

Il. Discussion

A. Standard of Review

We review de novo the district court’s

decision to grant or deny a habeas petition under

28 U.S.C. § 2254. Healy, 453 F.3d at 25. Under the

Antiterrorism and Effective Death Penalty Act of

1996 (““AEDPA”), Pub.L. No. 104-132, § 104, 110

Stat. 1214, 1219 (1996), a federal court shall not

grant a petition for habeas relief “with respect to

any claim that was adjudicated on the merits in

State court proceedings” unless the state court

decision: 1) “was contrary to, or involved an

unreasonable application of, clearly established

Federal law, as determined by the Supreme Court

of the United States” or 2) “was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “A state

court’s findings on factual issues ‘shall be presumed

to be correct’ and the petitioner bears the burden of

disproving factual findings by ‘clear and convincing

25a

evidence. “ McCambridge, 303 F.3d at 34-35

(quoting 28 U.S.C. § 2254(e)(1)).

Sufficiency claims are generally FN!4

evaluated under § 2254(d){1) and we look to

“whether the state court decision constitutes an

unreasonable application of clearly established

Supreme Court case law.” Hurtado v. Tucker, 245

F.3d 7, 15 (Ist Cir. 2001) (quoting Williams uv.

Matesanz, 230 F.3d 421, 426 (1st Cir. 2000)).

FN14. Although an analysis under §

2254(d)(1) is appropriate in the

present case, we say “generally”

because we need not conclude that we

must “evaluate a_ state court's

resolution of a Jackson sufficiency-of-

the-evidence claim in all cases under §

2254(d)(1) rather than § 2254(d)(2).”

Sarausad v. Porter, 479 F.3d 671, 678

(9th Cir. 2007) (emphasis added), rev'd

on other grounds sub nom.

‘addington v. Sarausad, --- U.S. ----,

129 S. Ct. 823, 172 L. Ed. 2d 532

(2009); cf. id. at 695 (Reinhardt, J.,

concurring in part and dissenting in

part) (“I see nothing in law or logic

preventing us from evaluating

Jackson claims under § 2254(d)(2),

which authorizes us to grant habeas

relief when the state court decision we

are reviewing is ‘based on = an

unreasonable determination of the

facts in light of the evidence presented

in the State court proceeding.’’)

(quoting § 2254(d)(2)).

26a

*299 “[T]he ‘unreasonable application of

prong of § 2254(d)(1) ‘reduces to a question of

whether the state court’s derivation of a case-

specific rule from the [Supreme] Court’s generally

relevant jurisprudence appears objectively

reasonable.” “ Jd. at 16 (quoting Matesanz, 230 F.3d

at 425).

“Habeas review involves the layering of two

standards. The habeas question of whether the

state court decision is objectively unreasonable is

layered on top of the underlying standard

governing the constitutional right asserted.” /d.

The constitutional right asserted in

sufficiency of the evidence claims is set forth by the

Supreme Court’s decision in Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). Under Jackson, due process requires that

“no person shall be made to suffer the onus of a

criminal conviction except upon sufficient proof-

defined as evidence necessary to convince a trier of

fact beyond a reasonable doubt of the existence of

every element of the offense.” /d. at 316, 99 S. Ct.

2781. More succinctly, the relevant test we take

from Jackson is “whether, after viewing the

evidence in the light most favorable to the

prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a

reasonable doubt.” /d. at 319, 99 S. Ct. 2781

(emphasis in original).

Thus, for our purposes, we must decide

whether the SJC’s application of Jackson to

O’Laughlin’s case was “objectively unreasonable.”

Although “[t]he term ‘:nreasonable’ is no doubt

27a

difficult to define,” Hurtado, 245 F.3d at 17

(quoting Williams v. Taylor, 529 U.S. 362, 410, 120

S. Ct. 1495, 146 L. Ed. 2d 389 (2000)), we have

explained that “some increment of incorrectness

beyond error is required.” McCambridge, 303 F.3d

at 36 (quoting Francis S. v. Stone, 221 F.3d 100,

111 (2d Cir. 2000)). “The increment need not

necessarily be great, but it must be great enough to

make the decision unreasonable in the independent

and objective judgment of the federal court.” Jd.FN!5

To be sure, “the gap between erroneous state court

decisions and unreasonable ones is narrow,” Evans

v. Thompson, 518 F.3d 1, 6 (ist Cir. 2008), and “it

will be the rare case that will fall into this gap,” id.

(citing Williams, 529 U.S. at 388, 120 S. Ct. 1495).

However, for an _ erroneous decision to be

unreasonable, judicial incompetence is_ not

necessary and “a case will fall into this narrow gap

precluding relhef only when ‘it is a close question

whether the state decision is in error.’ “ /d. at 7

(quoting McCambridge, 303 F.3d at 36) (emphasis

in original). “ ‘It is enough if the Supreme Court’s

general principles can be discerned and if,

respectfully but with confidence,’ *300 the federal

court concludes that the state court unreasonably

applied federal law.” Jd. (quoting White, 399 F.3d at

25).

FN15. We also note “that a state-court

adjudication of an issue framed in

terms of state law may receive section

2254(d)(1) deference so long as the

state standard is at least as protective

of the defendant’s rights as its federal

counterpart.” Leftwich v. Maloney, 532

F.3d 20, 23-24 (1st Cir. 2008); see also

28a

White v. Coplan, 399 F.3d 18, 23 (st

Cir. 2005) (explaining that a iederal

habeas court may “infer that the

federal claim was considered if the

state court rejects a counterpart state

claim and then cites to a case holding

that the federal constitution provides

no greater protection’). Even though

the SJC did not cite Jackson, we have

no qualms with its analysis in this

respect. The SJC rehed on

Massachusetts case law that has

expressly adopted the federal

constitutional standard in Jackson.

See Commonwealth v. Latimore, 378

Mass. 671, 393 N.E.2d 370, 375 (1979);