# Opposition Brief — O'Brien v. O'Laughlin (No. 09-484)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1150%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

2

No. 09-484

IN THE
SUPREME COURT OF THE UNITED STATES

STEVEN O'BRIEN,
SUPERINTENDENT, OLD COLONY CORRECTIONAL CENTER
Petitioner

V.

MICHAEL O’LAUGHLIN,
Respondent

On Petition for a Writ of Certiorari
to the United States Court of Appeals
For the First Circuit

RESPONDENT'S BRIEF IN OPPOSITION

For the Respondent:

Kenneth I. Seiger

P. O. Box 470725
Brookline, MA 02447
617-277-8544

QUESTION PRESENTED
Whether certiorari is compelled, where the First Circuit applied
the correct standard of review under AEDPA; that is, under the standard
governing the sufficiency of the evidence established in Jackson v.
Virginia, 443 U.S. 307 (1979), the state court’s decision was objectively
unreasonable, and did not apply an incorrect standard of “reasonable

speculation.”

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a isn nsncipniinpipnaennntelebagnionnniilonene 1
Reasons for Denying Certiorarin................ccccsccsssesesssseseescseeseseeseteeseensaneavens 1
A. _ Certiorariis not compelled by Sup. Ct. R.10..........c.ccccscccescseseeneee 1
B. The nature of the First Circuit opinion militates

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C. The First Circuit complied with AEDPA and

applied the correct standard of review.....................:scoscsseseeseeseeeeeees 3
D. The First Circuit did not adopt a standard

of review of “reasonable speculation.” ..............0:0ccccccseseecseseerssereneens 7
E. The First Circuit grants full deference to

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F. The warning that certiorari should be granted to

prevent federal habeas retrials of state criminal

convictions has no foundation where the

court applied the correct standard of review.............:c:seccsseseeeeee 15
G. The Supreme Court has denied certiorari

in sufficiency-of-evidence CASES................ccccccceseesesssesesseesesreeesenees 18
H. The First Circuit decision requires no

clarification of the applicable standard of review..................0.0000 18
I. The argument that the First Circuit misapplied a

J. The First Circuit correctly applied the standard of
RE AN Oa 21

K. The Petitioner’s complaints regarding the First
Circuit's conclusions must be rejected............ccccccccceseseececessseseeerees 23

TABLE OF AUTHORITIES

United States Supreme Court cases:

Anderson v. Fuller, 455 U.S. 1028 (1982)...........cccecescscsssesssssesssecseesseecseesees 18
Bell v. Cone, 535 U.S. 685 (2002)...snssnstnsestensntntnntnsesestntstce 15,16
Brown v, Payton, 544 U.S. 133 (2004).........ssssssssssscsessssscssesssecssessssessseneveees 17
Burks v. United States, 437 U.S. 1(1978).......:.sssscecsccsesseessessnessseenceseeenes 16
Cattell v. White, 546 U.S. 972 (2008) ......ssssssesssssssssseessneesemnseseeanee 7,14
Barly v, Packor, 837 U.S. 3(2002)..............ssscossessessesessccessesssssesesessserssosseos 17
Jackson v. Virginia, 443 U.S. 307 (1979)......cccsssessecsesssesessesseesseenes 1, passim
Jinan tin TE, FR isesusessasscseniesvrsscnsvsossesevecssovsoos 9,18,35,36
Lockyer v. Andrade, 538 U.S. 63(2003)..........c.cccccsscscsssssseceesseesseseseseseeevens 17
Miller-El v. Cockrell, 537 U.S. 322 (20038).........e:csssssescsesssecesvecssessseesseeseeses 15
Mitchell v. Esparza, 540 U.S. 12 (2008) ........c.ccccccsessccsssescsscssssnescssssesceeses 17
Schriro v. Landrigan, 550 U.S. 465 (2007).........s:cssssscsessessseeseceseesseessen ia
United States v. Johnston, 268 U.S. 220 (1925).........csccsssssseessseessesseeeseeeee 21
Uttecht v. BR, Fi raresinscnctennciccsicesvivvsnisnesanisinesostscnsa 17
Williams v. Taylor, 529 U.S. 362(2000)...........ssecssesseessecssseseesseesscessenes 4,5,17
Woodford v. Garceau, 538 U.S. 202 (2008).......c.c:cccescecsseescessssseesrsenesenseeen 17
Woodford v. Visciotts, 537 U.S. 19(2002)...........:ssecssecseessssessessssesesseesssnen 17
Yarborough v. Alvarado, 541 U.S.652 (2004)...........:cccccsessssssseesecerseesesseees 17
Yeager v. United States, 08-67 (U.S. 6°18-2009)......c.cceccsscscscscesssseerseeeeee 16

United States Court of Appeals cases:
Allison v. Ficco, 388 F.3d. 367 (1st Cir. 2004) ......c.cc.csecesccseseseescseeeseeseseees 13

Foxworth v. St. Amand, 570 F.3d 414 (1st Cir. 2009) ......c.c.cceccssesessesseeees 13

Fuller v. Anderson, 662 F. 2d 420 (6" Cir. 1981),
cert. denied sub nom,

Anderson v. Fuller, 455 U.S. 1028 (1982). .........c00000 sr a tae 18
Hall v. Dipaolo, 72 F.3d.243 (1st Cir, 1996) .sccscosscssctaesesssesersnesceens 13
Hurtado v. Tucker, 245 F. 3d 7 (1* Cir. 2001),

cert. denied, 534 U.S. 925 a ee 46,13
Juan H. v. Allen, 408 F. 3d 1262 (9™ Cir. 2005),

cert. denied sub nom, Juan v. Allen, 546 U.S. 1137 (2006)........9,18,35-36
Kater v. Maloney, 459 F.3d.56 (1st Cir. 2006) ......c.ccccssessessecsesssssesssseeseee 13
Kyles v. Whitley, 514 U.S. 419 (1995).....ccccsscessecsssessessecssecsssssesenessessecens 21
Leftwich v. Maloney, 532 F.3d 20 (st Cir. 2008)....cssessssssssssssssssesene 13
Newman v. Metrish, 543 F. 3d. 793 (6™ Cir. 2008)........c.cccssesescsscscseeseseeeeees 8
O'Laughlin v. O’Brien, 568 F.3d 287 (ist Cir. 2009)

TERRA ae et ate ee 3, passim
O'Laughlin v. O’Brien, 577 F. 3d 1 (1st Cir. 2009)

oi a cnsccescabtinssenandesnpiarsansectaniasieeanae 3,11,12,14,21-23
Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994) .......ccccessesccsesecseesccesesesensenes 13

Palmariello v. Superintendent, M.C_I. Norfolk,
ne Ce I scsi bvacovenusbnesnnnosevesteubunetiaesie 13

Perez v. Cain, 529 F.3d 588 (5th Cir. 2008),
cert. denied, 129S. Ct. 496 (2008) ..........ccccccccccccececseseseseeesececseeeeneeeee cacadg ll

Stewart v. Coalter, 48 F.3d 610 (1st Cir. 1995).........ccccccccceseseessecseseesseseee 13
Superintendent v. Hill, 472 U.S. 445 (1985).......cccccssesseseesesseesesseesvessenssene 21
Tucker v. Palmer, 541 F.3d 62 (6th Cir. 2008) ..0......cccccccccsssescsssessesssesveee 10
White v. Coplan, 399 F.3d 18 (1st Cir. 2005),
cert. denied sub nom,
Cattell v. White, 546 U.S.972 (2005) ......cc.cccecccsescsesesccsesesssseseseeeserees 7,14
Massachusetts cases:

Commonwealth v. O’Laughlin, 63 Mass. App. Ct. 805 (2005)

a RRTRIRER tic ee E TRS et laa Dee eo 32
Commonwealth v. O’'Laughlin, 446 Mass. 188 (2006)

STII ccccacscrsaososissnrseearsevsonsovescosoneectocevesscennee 22-24,27,32,34
Federal statutes:

28 U.S.C.$2254esccssseessosessevcersnsosnesevesssceccveresoesensssssevveesessoeeeesvene 4,19
United States Supreme Court rules:
cle och. beinisbaemabioneenseceaaioe 1,2,20

“=

SUMMARY OF ARGUMENT
' There is no reason to grant certiorari in this matter. This case
presents a fact-intensive sufficiency-of-the-evidence review. It presents
an extremely rare instance where a state court's determination as to guilt
beyond a reasonable doubt is so incorrect as to be objectively
unreasonable under the applicable standard outlined in AEDPA.

The Petitioner approaches this matter under the presumption that
the First Circuit applied an incorrect standard of review (“reasonable
speculation”) under AEDPA. This entire argument is mistaken, where the
First Circuit applied the correct standard of review; that is, whether
under the Jackson v. Virginia standard of review governing the
sufficiency of the evidence, the state court’s decision was objectively
unreasonable. The First Circuit correctly carried out its statutory
obligations under AEDPA when it reviewed the record and ruled that the
totality of the evidence was insufficient to warrant a conviction. The
Petitioner is not entitled to certiorari where it merely disagrees with the

First Circuit's final conclusion. The decision must be left alone.

REAS FOR D NG CERTIORARI
A. Certiorari is not compelled by Sup. Ct. R. 10.
Pursuant to Sup. Ct. R. 10, certiorari “will be granted only for

compelling reasons.” None of the reasons contemplated by Rule 10 compel

-|-

certiorari in this matter.

Rule 10(a) does not apply, because the Petitioner has not alleged
that the First Circuit decision “conflicts with the decision of another
Court of Appeals on the same important matter”. Nor has the Petitioner
argued that the First Circuit “decided an important federal question in
a way that conflicts with a state court of last resort”; or that the decision
“departed from the accepted and usual course of judicial proceedings as
to call for an exercise of the Supreme Court’s supervisory powers”. See
Sup. Ct. Rule 10(a).

Sup. Ct. R. 10(b) is also inapplicable, because the case at bar does
not present a situation where “a state court of last resort has decided an
important federal question in a way that conflicts wit the decision of
another state court of last resort or of a United States court of appeals.”

Nor can the Petitioner meet the requirements of Rule 10(c); that
a state court or the First Circuit has decided an important question of
federal law that has not been, but should be, settled by this Court, or has
decided an important federal question in a way that conflicts with
relevant decisions of this Court. As will be shown below, the First Circuit

opinion in the instant matter is in compliance with the relevant decisions

of the Supreme Court.

B. The nature of the First Circuit Opinion militates against review

The First Circuit opinion is unanimous. O’'Laughlin III at 289. It
does not set a precedent. The First Circuit upheld the decision on a
petition for rehearing and en banc review with only one dissent.

OLaughlin IV at 1.

C. The First Circuit complied with AEDPA and applied the correct
standard of review.

The primary complaint in the certiorari petition is that the First
Circuit departed from the standard of review enunciated in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and
Jackson v. Virginia, 443 U.S. 307 (1979). This argument is without
merit. In no way did the First Circuit either depart from the correct
standard of review or exceed its review powers under AEDPA.

In its opinion, the First Circuit carefully detailed the applicable
standard of review. O’Laughiin [// at 298-300. As the court noted, under
AEDPA, 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

3.

evidence presented in the State court proceeding." O’'Laughlin I/Tat 298,
citing 28 U.S.C, §2254(d)(1)-(2).

The First Circuit's application of the AEDPA standard required 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.”
O'Laughlin ITT at 299, quoting Hurtado v. Tucker, 245 F. 3d 7, 16 (1" Cir.
2001). This is the correct standard of review, in full compliance with the
Supreme Court ruling in Williams v. Taylor, 629 U.S. 362 (2000).

This analysis required the First Circuit to apply the Jackson
standard, because the constitutional right asserted is the due process
requirement 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.” O’Laughiin IT/ at 299, quoting
Jackson v. Virginia, 443 U.S. at 316.

As the First Circuit explained, “...[t]he 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.”
O'Laughlin ITT at 299, quoting Jackson v. Virginia, 443 U.S. at 319.

The First Circuit thus had to decide whether the state court's

4

application of Jackson v. Virginia was “objectively unreasonable”.
O'Laughlin at 299. The First Circuit was therefore in total compliance
with AEDPA and Williams v. Taylor.

The First Circuit further detaiied the applicable standard under
Jackson v. Virginia, that 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”. O’Laughlin ITT at 300-301, quoting Jackson v. Virginia, supra at
319.

The court noted the difficulty of applying the Jackson standard to
a situation where, as in the case at bar, there were no witnesses to
identify the perpetrator. O'Laughlin II] at 300. But the court fully
recognized that circumstantial evidence is permissible to identify the
perpetrator O’Laughlin IT] at 301. The court noted that "[gluilt beyond a
reasonable doubt cannot be premised on pure conjecture. But a conjecture
consistent. with the evidence becomes less and less a conjecture, and
moves gradually toward proof, as alternative innocent explanations are
discarded or made less likely." O'Laugh/in /I/ at 301.

It is therefore clear that before the First Circuit applied its
analysis under the applicable standard of review, in no way did it ignore

the settled principle of law that circumstantial evidence and all the

inferences therefrom could suffice to meet the Jackson standard

The First Circuit also expressed its full recognition of the deference
that it must pay to state court decisions:

“..[Als a general rule, federal courts should be particularly
cautious about issuing habeas, on grounds of the objective
unreasonableness of a state court's conclusion that the evidence is
sufficient, where there has been a verdict of guilt by a jury of a
defendant's peers, where the defendant's credibility was evaluated by the
jury hearing his testimony, where that verdict has been affirmed on
appeal in the state system, and where there is no claim of constitutional
error in the conduct of the trial." O’Laughlin JIT at 300 fn. 16, citing
Hurtado v. Tucker, 245 F.3d 7, 19-20 (1st Cir. 2001).

The First Circuit further commented on deference AEDPA
required: “Although we have identified several gaps in the SJC's analysis,
we are mindful that on habeas review under AEDPA we are not
permitted to grant a writ if we merely disagree with the jury verdict or
if we identify an error in the SJC's reasoning”. O’Laughiin II at 304.

The First Circuit further noted, “We once again acknowledge the
extremely high bar that must be overcome on habeas review to overturn
a state court decision; however, that bar is not insurmountable and on
rare occasions we have held a state court decision to be objectively
unreasonable”. O’'Laughiin II] at 304

To demonstrate the deference it gives to state court decisions, the

-6-

First Circuit was able to cite only one case where it reversed a state court

conviction under the objectively unreasonable standard. O’Zaughlin II
at 304, citing White v. Coplan, 399 F.3d 18 (1st Cir. 2005), cert. denied
sub nom, Cattell v. White, 546 U.S. 972 (2005) [holding on habeas review
that state court unreasonably applied Supreme Court's Confrontation
Clause jurisprudence where state court barred petitioner from cross
examining complainants regarding prior accusations].

The First Circuit clearly followed the correct standard of review

and proper deference pursuant to AEDPA and Jackson v. Virginia.

D. The First Circuit did not adopt « standard of review of
“reasonable speculation.”

As shown above, the First Circuit applied the correct standard of
review. But the Petitioner’s entire argument is premised upon a canard:
that the First Circuit adopted an incorrect standard of review of
“reasonable speculation’ (See Petition, pages 16°21). This argument is
without merit. In no way did the First Circuit adopt a new test of
“reasonable speculation”. Rather, the Petitioner is coopting the First
Circuit’s use of that particular phrase to argue that the First Circuit
applied an incorrect standard of review, which it clearly did not.

An examination of each use of the phrase “reasonable speculation”

demonstrates that this is not an adoption of an improper standard of

2

review. It is important to note that in the sections of the opinion where

the First Circuit explains the applicable standard of review, the court
never uses the phrase “reasonable speculation.” O’Laughlin II at 298-
301.

The phrase does not appear until the analysis of the SJC’s opinion,
where the First Circuit finds that "[allthough 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 II] at
302, quoting Newman v. Metrish, 543 F.3d at 796 [emphasis added).

The phrase next appears when the First Circuit finds that “The
instant facts may support a reasonable speculation that O'Laughlin was
the assailant, but not sufficient evidence to establish his guilt. Taken
together, the circumstantial evidence in this case, even when drawing all
reasonable inferences in favor of the prosecution, does not permit any
rational jury to conclude that O'Laughlin was the assailant beyond a
reasonable doubt.” O’Laughlin IIT at 302 [emphasis added].

The First Circuit further compared the instant case to Newman v.
Metrish: “(without additional evidence placing [him] at the scene of the
crime, there is only a reasonable speculation that [he] was present
Me where the evidence taken in the light most favorable to the
prosecution creates only a reasonable speculation that a defendant was
present at the crime, there is insufficient evidence to satisfy the Jackson

8-

standard." O’Laughlin II] at 306, quoting Newman v. Metrish, supra at
797 [emphasis added].

The First Circuit's use of the phrase “reasonable speculation”
therefore demonstrates that the phrase is not an adoption of an incorrect
standard of review. The phrase means that speculation was necessary to
reach the conclusion that the evidence was sufficient to support a
conviction. The First Circuit demonstrates this by consistently pairing
the phrase “reasonable speculation” with additional statements that the |
circumstantial evidence, and all the reasonable inferences therefrom, was
insufficient to support a conviction. O’Laughlin I// at 302, 306.

The First Circuit further demonstrates that the phrase
“reasonable speculation” is not a standard which it applied, but rather a
term of art to describe the insufficiency of the evidence: "Although we
must draw all reasonable inferences in favor of the prosecution, a
‘reasonable’ inference is one that is supported by a chain of logic, rather
than, as in this case, mere speculation dressed up in the guise of
evidence." O'Laughlin III at 307, quoting Juan H. y. Allen, 408 F. 3d.
1262, 1277 (9" Cir. 2005), cert. denied sub nom, Juan v. Allen, 546 U.S.
1137 (2006).

The First Circuit's use of the phrase “reasonable speculation”
therefore is not the adoption of an incorrect legal standard. Rather, it is

a consistent application of the Jackson standard, which allows for

9.

convictions based on “all reasonable inferences” but of course does not
provide for guilty convictions based on reasonable speculation.

The argument that the phrase “reasonable speculation” is not a
new and incorrect standard of review, but rather a term of art to describe
the state of the evidence, is further demonstrated by the Sixth Circuit in
Tucker v. Palmer, 541 F.3d 652, 669 (6th Cir. 2008): “This Court's habeas
jurisprudence in cases involving insufficiency of evidence has repeatedly
distinguished between evidence that can lead to reasonable speculation
of guilt and evidence sufficient to prove guilt beyond a reasonable doubt.
Here, the government's sparse evidence, at best, provided speculation
that Tucker committed the crime. This Court is to grant habeas relief
when convictions are based solely upon mere reasonable speculation
instead of evidence sufficient to prove guilt beyond a reasonable doubt.”
Tucker v. Palmer, 541 F.3d at 669 [emphasis added].'

It is thus quite clear that the phrase “reasonable speculation” is
not to be confused with the legal standard of “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier

See Black's Law Dictionary definition of “speculation” : “speculation, upon which
neither court in nonjury case nor jurors in jury case may base verdict, is the art of
theorizing about a matter as to which evidence 1s not sufficient for certain knowledge.”
Black’s Law Dictionary, Abridged Fifth Edition, 727. See also the ordinary dictionary
definitions: To “speculate” is to “form a theory or conjecture without firm evidence.”
Concise Oxford English Dictionary, Eleventh Edition, 1386. To “speculate” is “to take to
be true on the basis of insufficient evidence.” Merriam-Webster Online Dictionary,
http‘//www.merriam-webeter.com/dictionary/speculate.

-16.

of fact could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. at 319. The First
Circuit’s use of this term of art must not be construed as an adoption of
an incorrect standard of review.

It is clear from a full reading of the opinion in O’Laughlin JT that .
even if the First Circuit had never used that particular phrase, the
conclusion would have been the same; that is, the SJC’s conclusion was
objectively unreasonable because the conviction was based on
speculation.

In his concurring opinion on the denial of the petition for en banc
rehearing, Justice Torruella clarified that the term “reasonable
speculation” is not meant as a new standard of review: “...the dissent
mischaracterizes the reasoning of the unanimous panel”. O’Laughlin JV
at 9. Justice Torruella notes that the opinion “neither articulates nor
applies a sufficiency of the evidence test incousistent with the Supreme
Court’s clearly established law under Jacksou v. Virginia [citation
omitted).” Jd. “To suggest that the panel opinion adopts ‘reasonable
speculation’ as some sort of binding ‘legal rule’ is incorrect.” Jd.

Justice Torruella further noted that “our use of the term
‘reasonable speculation’ merely frowns upon speculative evidentiary
interpretations and in no way suggests we disfavor the use of
circumstantial evidence” O’Laughlin [V at 9. Justice Torruella referred

-}1-

to the panel opinion, which stated that, “direct evidence of identification
is not necessary” /d., quoting O’Laughlin I7Tat 301 n. 17. This establishes
that the First Circuit was fully cognizant that the conviction could indeed
be based on reasonable inferences, and there did not need to be direct
evidence of identification. Rather, all the inferences amounted to “mere
speculation dressed up in the guise of evidence”. O’Laughiin I at 307.
Therefore, the argument that the First Circuit departed from the
standard of review outlined in AEDPA and Jackson v. Virginia is
incorrect. The First Circuit engaged in an intensive fact-specific
application of the Jackson standard, and concluded that the SJC’s
determination was objectively unreasonable. O’Laughlin /Vat 9-10. The
argument that the First Circuit applied an incorrect standard of
“reasonable speculation” is nothing more than a back-door effort to have
the Supreme Court review the evidence again and possibly arrive at a
different conclusion. Certiorari is not available for this purpose (See
Argument I below, also Sup. Ct. Rule 10). The certiorari petition must fail
once it is recognized that the First Circuit applied the correct standard of

review.

E. The First Circuit grants full deference to state court decisions.
As noted above in Argument C, the First Circuit expressed its full

recognition of the deference that it must pay to state court decisions:

i.

-

« {Als a general rule, federal courts should be particularly
cautious sas issuing habeas, on grounis of the objective
unreasonableness of a state court's conclusion that the evidence is
sufficient, where there | has been a verdict of guilt by a jury of a
defendant's peers, where the defendant's credibility was evaluated by the
jury hearing his testimony, where that verdict has been affirmed on
appeal in the state system, and where there is no claim of constitutional
error in the conduct of the trial." O’Laughlin I at 300 fn. 16, citing
Hurtado v. Tucker, 245 F.3d 7, 19-20 (1st Cir. 2001).

The First Circuit decisions in sufficiency-of-the-evidence cases
bear out its own admonition of the deference it pays to state courts. In
fact, the decision in OZaughlin [IT is the only First Circuit decision to
reverse a state court conviction on sufficiency-of-the-evidence grounds.

The First Circuit upheld the state court decisions on sufficiency of:
the-evidence grounds in the following cases: Leftwich v. Maloney, 532
F.3d 20, 21-28 (1st Cir. 2008); Foxworth v. St. Amand, 570 F.3d 414, 425-
429 (1st Cir. 2009); Kater v. Maloney, 459 F.3d 56, 67-68 (1st Cir. 2006);
Allison v. Ficco, 388 F.3d 367, 371 (1st Cir. 2004), cert. denied, 544 U.S.
1039 (2005); Hurtado v. Tucker, 245 F.3d 7, 14-20 (1st Cir. 2001), cert.
denied 534 U.S. 925 (2001), Hall v. Dipaolo, 72 F.3d 243, 245 (1st Cir.
1996); Stewart v. Coalter, 48 F.3d 610, 613-617 (1st Cir. 1995); Ortiz v.

Dubois, 19 F.3d 708, 717 (1st Cir. 1994); Palmariello v. Superintendent,

~

-)3-

M.C.I. Norfolk, 873 F.2d 491 (1st Cir, 1989).

As noted earlier, there is only one other case where the court
reversed a state court conviction under the objectively unreasonable
standard, but not on a sufficiency-of-the-evidence claim. See O'Laughlin
ITTat 304, citing White v. Coplan, 399 F.3d 18 (1st Cir. 2005), cert. denied
sub nom, Cattell v. White, 546 U.S. 972 (2005) [state court unreasonably
applied Supreme Court's Confrontation Clause jurisprudence where state
court barred petitioner from cross examining complainants regarding
prior accusations).

Clearly, habeas relief in the First Circuit is extremely rare. The
_ Petitioner's argument that the First Circuit does not pay proper deference
to the state court is therefore without merit. The First Circuit has been
reviewing sufficiency-of-the-evidence habeas claims with great deference
to state court decisions. But as the First Circuit noted, “in rare instances
there are fact-intensive cases where a state court's determination as to
guilt beyond a reasonable doubt is so incorrect as to be objectively
unreasonable.” O’Laughlin JV at 10. There is no need for alarms bells to

ring because the First Circuit has finally reversed one state court decision

on this basis.

F, The warning that certiorari should be granted to prevent federal
habeas retrials of state criminal convictions has no foundation,
where the court applied the correct standard of review.

In addition to arguing that the First Circuit applied an incorrect
standard of review, the Petitioner warns that the Supreme Court should
grant certiorari in order to prevent federal habeas retrials of state
criminal cases (See Petition, pages 13-16). The argument must be rejected
where the First Circuit followed the letter of the law.

The Petitioner argues that 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.” See Petition, page 13, citing
Miller El v. Cockrell, 537 U.S. 322, 337 (2003). The added restraints were
intended to prevent federal habeas retrials and to ensure that state court
convictions are given effect to the extent possible under law. See Petition,
page 13, citing Bell v. Cone, 535 U.S. 685, 693 (2002).

This is a correct statement of the law. But AEDPA specifically
granted the First Circuit the statutory authority to review state court
convictions. This of course is the purpose of the long-standing right of
habeas review. As long as the federal court applies the correct standard
of review, and demonstrates the proper deference to the state court, there
is no reason to disturb the decision. Apparently, with this argument, the

Petitioner would never agree with any federal habeas reversal of a state

15.

court conviction.

The Petitioner warns that certiorari is warranted to prevent
federal habeas retrials in sufficiency-of-the-evidence cases (See Petition,
pages 15-16). If the Petitioner is warning that federal habeas review will
result in state court retrials, the argument is misplaced, because the case
at bar does not present a situation where federal habeas relief will result
in a retrial. The First Circuit ruled that because double jeopardy
principles applied, the court remanded the case for the Respondent’s
release. with prejudice to reprosecution. O'Laughlin III at 309, citing
Burks v. United States, 437 U.S. 1, 18 (1978).

This is a correct application of the law as set forth by the Supreme
Court. The Supreme Court recently ruled that where an appellate court
reverses a conviction for lack of constitutionally sufficient evidence, that
determination constitutes an acquittal which, under the Double Jeopardy
Clause, precludes further prosecution. Yeager v. United States, 08-67
(U.S. 6-18-2009), citing Burks v. United States, 437 U.S. at 11.

The Petitioner cites a number of cases in support of its argument,
but none of the cited cases are sufficiency-of-the-evidence cases where
double jeopardy applies. See Be// v. Cone, 535 U.S. 685, 693 (2002) [claim
of ineffective assistance of counsel]; Miller-E/ v. Cockerell, 537 U.S. 322
(2003) [claim that prosecutor's use of peremptory strikes to exclude
African-American jurors violated equal protection laws]; Schriro v.

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Landrigan, 50 U.S, 465 (2007) (claim of ineffective assistance of counsel
at death penalty hearing]; Yarborough v. Alvarado, 541 U.S.652 (2004)
[claim that statement was introduced in violation of Mirandal; Mitchell
v. Esparza, 640 U.S. 12 (2003) [claim of ineffective assistance of counsel
at sentencing, and that death penalty could not be imposed under the
state statute]; Lockyer v. Andrade, 538 U.S. 63 (2008) [claim that
California's three strikes law violated the constitutional provision against
cruel and unusual punishment]; Brown v. Payton, 544 U.S. 133 (2004)
[claim of erroneous argument by prosecutor regarding death penalty
factors]; Woodford v. Garceau, 638 US. 202 (2003) [respondent's
application was subject to AEDPA’s amendments where it was filed after
AEDPA’s effective date]; Williams v. Taylor, 529 U.S. 362 (2000) [claim
of ineffective assistance of counsel at death penalty hearing]; Woodford
v. Visciotti, 537 U.S. 19 (2002) [claim of ineffective assistance of counsel
at death penalty phase]; Uttecht v. Brown, 551 U.S. 1 (2007) [claim that
juror was improperly excused for cause on the ground that he could not
be impartial in deciding whether to impose the death sentence]; Early v.
Packer, 537 U.S. 3 (2002) [claim of jury coercion of deadlocked jury).
The case at bar is strictly a sufficiency-of-the-evidence case where,
in accordance with double jeopardy principles, the Respondent can not be

retried.

G. The Supreme Court has denied certiorari in sufficiency-of
evidence cases.

The Supreme Court has already denied certiorari in sufficiency of-
the-evidence cases where the circuit court of appeals applied the Jackson
standard and the “objectively unreasonable” standard under AEDPA.
While not exhaustive, see Juan H. v. Allen, 408 F. 3d. 1262 (9" Cir.
2005), cert, denied sub nom, Juan v. Allen, 546 U.S. 1137 (2006); Fuller
v. Anderson, 662 F, 2d 420 (6" Cir. 1981), cert. denied sub nom, Anderson
v. Fuller, 455 U.S, 1028 (1982); Chein v. Shumsky, 378 F.3d 978, 993 (9
Cir. 2004), cert. denied, sub nom, Shumsky v. Chein, 543 U.S. 956 (2004);
Perez v. Cain, 529 F.3d 588 (5th Cir. 2008), cert. denied 129 S. Ct. 496
(2008). There is no reason to grant certiorari in the case at bar where the

Court has already denied certiorari in similar cases.

H. The First Circuit decision requires no clarification of the
applicable standard of review.

The Petitioner argues that this case requires “clarification” of the
Jackson application to sufficiency-of-the-evidence cases, and for
“reaffirming” AEDPA’s restrictions on federal habeas review. See
Petition, pages 22-30. There is no need for clarification where the First
Circuit assiduously applied the correct standard of review, and paid full

heed to the deference owed to the state court decision. There is no reason

to “reaffirm” a settled standard which the First Circuit correctly applied.
The Petitioner argues that the standard of review needs to be clarified
and reaffirmed, and then uses this argument as a springboard to attack
the First Circuit's conclusion, which is an improper basis for certiorari
(see Argument I, below). The Respondent asserts that this argument is
a further effort to have the Supreme Court review the evidence and
possibly arrive at a different conclusion than the First Circuit.

The Petitioner also mistakenly compares the case at bar with
another matter where the government's certiorari petition is pending:
Brown v. Farwell, 525 F. 3d 787 (9" Cir. 2008), cert. granted sub nom,
McDaniel v. Brown, 129 S. Ct. 1038 (2009). See Petition, page 30.

The comparison is incorrect. McDaniel v. Brown at first presented
two questions: (1) What is the standard of review for a federal habeas
court for analyzing a sufficiency of the evidence claim under the Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA)?; and (2)
Does analysis of a sufficiency of the evidence claim pursuant to Jackson
v. Virginia, 443 U.S. 307, 318-19 (1979), under 28 U.S.C. § 2254(d)(1)
permit a federal habeas court to expand the record or consider nonrecord
evidence to determine the reliability of testimony and evidence given at
trial? See Brief of Respondent, No. 08°559, page i.

The Supreme Court granted certiorari on these questions, but the

Court later removed McDanie/ from the calendar after the habeas

-19-

petitioner conceded that the case did not present a question of sufficiency
of evidence, but rather whether the state trial court improperly admitted
DNA evidence in violation of the Due Process Clause. See Reply Brief for
McDaniel, Warden, and the Attorney General of Nevada, No. 08-559,
pages 1-3.

McDaniel v. Brown no longer concerns questions regarding
sufficiency’ofthe-evidence standards under AEDPA. There is thus no

reason to compare it to the case at bar.

I, The argument that the First Circuit misapplied a properly stated
rule of law is not a proper basis for certiorari.

Under the Rules of the Supreme Court, certiorari is not available
where the Petitioner argues that the First Circuit misapplied a properly
stated rule of law. See Sup. Ct. R. 10: “A petition for a writ of certiorari
is rarely granted when the asserted error consists of erroneous factual
findings or the misapplication of a properly stated rule of law.” Therefore,
the Petitioner's attack on the First Circuit’s application of the standard
of review to the facts of instant case (See Petition, pages 23-28) is not a
basis for certiorari.

If the Supreme Court rejects the Petitioner's argument that the
First Circuit applied an incorrect “reasonable speculation” standard of

review, then the remainder of the Petitioner's arguments (such as the

-20-

argument that the “reasonable speculation standard devalues
circumstantial evidence”), must fail. See Petition, page 20.

But the Petitioner goes on to assail che First Circuit’s analysis of
the evidence (Petition, pages 23°29). This is an inappropriate argument,
because the Supreme Court does not grant certiorari to review evidence
and discuss specific facts. Superintendent v. Hill, 472 U.S. 445, 460-461
(1985), citing United States v. Johnston, 268 U.S. 220, 227 (1925).
Certiorari should be denied where the petitioner claims that a correct
view of the law was incorrectly applied to the facts. Kyles v. Whitley, 514

U.S. 419, 456 (1995).

J The First Circuit correctly applied the standard of review to the
evidence.

In his concurring opinion in O’Laugh/in IV, Justice Torruella set
aside any complaints that the court engaged in a piecemeal examination
of the evidence. O’Laughlin IVat 9. The panel reviewed the sufficiency of
the evidence as a whole, and in its totality. Jd.

The First Circuit had already demonstrated this in O’Laughlin LI:
"Taken together, the circumstantial evidence in this case, even when
drawing all reasonable inferences in favor of the prosecution, does not
permit any rational jury to conclude that O'Laughlin was the assailant

beyond a reasonable doubt." O’Laughlin Il] at 302. "Given the

a.

~

insufficiency of the evidence, circumstantial or otherwise, tying

O'Laughlin to the attack, we conclude that a rational jury could not find
O'Laughlin's guilt beyond a reasonable doubt.” O’Laughlin III at 304.

As Justice Torruella explains, to arrive at its conclusion, the court
considered the factors the SJC weighed. O’Laughlin JVat 9. This included
evidence of motive, opportunity, means, and consciousness of guilt. Jd.

Justice Torruella further answered the complaint that the panel
had engaged in a de novo review of the record. “The opinion recounts the
facts as presented by the SJC and holds, drawing all reasonable
inferences in favor of the prosecution, that the SJC was objectively
unreasonable in concluding that O'Laughlin was the assailant beyond a
reasonable doubt. This approach was not legal error. The bottom line is
that we read the record differently than the dissent, not that we apply the
wrong legal standard.” O’Laughlin [Vat 9-10.

Indeed, the First Circuit recited a complete statement of facts, as
found by the SUC. O’Laughiin [Tat 290-295. Of course, it was impossible
for the First Circuit to review the evidence as a whole without discussing
specific but important details. This is what appellate courts must do,
especially in cases such as the present one, which involved over forty
witnesses and 2000 transcript pages. This is what the SJC did in
O'Laughiin IT. But any comp!aizut in the Petition or the en banc dissent
in O’'Laughlin JVthat the First Circwt engaged in a piecemeal review of

es

the evidence must be rejected.
The First Circuit further stated that “we are mindful that on
habeas review under AEDPA we are not permitted to grant a writ if we

merely disagree with the jury verdict.” O’Laugh/in IT at 304.

K. The Petitioner's complaints regarding the- First Circuit’s
conclusions must be rejected.

The First Circuit reviewed the totality of te evidence in a light
most favorable to the government, and concluded that this case presented
a rare instance where a state court's determination as to guilt beyond a
reasonable doubt was so incorrect as to be objectively unreasonable.

O’Laughlin IV at 10.

Of note is that the Massachusetts Appeals Court earlier also
concluded that the evidence was insufficient to identify O’Laughlin as the

perpetrator of the crime. O'Laughlin I.

Of further note is that on further appellate review, the SJC
affirmed the convictions, but only after finding that the case was “a close

one.” O'Laughlin [Tat 189.

It is important to recite certain undisputed facts, especially the
absence of any physical evidence connecting O’Laughlin to the crime

scene. The police recovered fourteen fingerprints and one palm print from

Mrs. Kotowski's apartment, none of which matched those of O'Laughlin.
In addition, footprint impressions taken at the apartment did not match
O'Laughlin's 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 ofblood 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. O'Laughlin II] at 294.

The Commonwealth’s case was based solely on circumstantial
evidence.” The entirety of that evidence failed to place O’Laughlin inside

the apartment where the assault occurred.

In addition to the lack of physica] evidence in Ms. Kotowski’s
apartment to establish his presence, there was also no evidence inside
O’Laughlin’s apartment to create any inference that he had been inside
ker apartment. Ms. Kotowski was excluded from contributing to any of
the stains found in his apartment (Tr. Vol. 7:198,230). The stain in
O’Laughlin’s apartment matched his own DNA (Tr. Vol. 7:197). See also

O'Laughlin I] at 197-198.

Despite the copious amount of blood found at the scene and on the

The SJC found that the Commonwealth relied “wholly on circumstantial
evidence.” O'Laughlin, 446 Mass. at 198. The trial judge instructed the jury that” ...the
Commonwealth's case is based solely upon circumstantial evidence...” (Tr. Vol. 9:119).

24.

victim, there was no blood at all on O’Laughlin when the police
encountered him walking from his apartment just a few minutes after
they responded to the dispatch, and there was no evidence of bloody
clothes found in his apartment during the search, or anywhere else on the

premises.

At trial, the defense presented abundant evidence to shed even
further doubt on O’Laughlin’s guilt. O’Laughlin’s theory was that another
individual, the victim's estranged husband, may have committed the
assault. There was prosecution evidence that their marital separation
had upset the husband, but O’Laughlin’s witnesses--including the victim’s
sister and a close friend--revealed that he was angrier at his wife than
either one of them cared to admit at trial, and he had berated her and

called her names (Tr. Vol. 8:51°52,164-165).

On the evening after the assault, the husband was at Ms.
Kotowski’s bedside, and admitted to the officer nearby that he was afraid
she would wake up and believe he committed the attack (Tr. Vol. 8:216).
By contrast, Mr. O’Laughlin stated that he was glad the victim had
survived because it meant she could identify her assailant (Tr. Vol.
6:185).

O’Laughlin’s evidence is to be viewed together with prosecution

evidence regarding the victim’s husband: that bleach-reeking towels

«25.

matching the victim’s were found in the trunk of his car on the morning
after the assault (Tr. Vol. 6:223-224,264); that an officer found wooden
baseball bats in his garage (Tr. Vol. 6:94-95); that the carpenter who lived
upstairs, the only witness to hear the attack, heard the sound of wood
striking wood (Tr. Vol. 2:76, 83); that a swabbing from Mr. Kotowski’s
arm tested positive for the presumptive presence of blood (Tr. Vol. 7:189,

6:287-288).

Shortly after the victim was found, her husband, David Kotowski,
appeared at the Dalton Police Station to report a “medical emergency”

concerning the victim (who lived in Lee) without supposedly having any

- knowledge of the assault (Tr. Vol. 8:128-129).

These were all significant facts that led the First Circuit to
conclude that the circumstantial evidence, in a light most favorable to the
government, was insufficient to prove O’Laughlin’s guilt. But the

Petitioner makes several specific complaints that must be addressed.

The Petitioner complains about the First Circuit’s treatment of the
evidence of motive, and the court’s finding that O’Laughlin’s financial
motive was “weak at best.” See Petition, page 23, citing O’Laughiin [//at

302.

The First Circuit could not have been more correct when it

concluded that the financial motive was “weak at best”. As the First

-26-

Circuit found, “A jury could permissibly conclude that he needed money
to acquire crack cocaine, giving him reason to break into Mrs. Kotowski's
apartment, a person whom he knew had money. However, Mrs. Kotowski
testified that nothing of value was taken and no items, not even

expensive jewelry in plain view, were disturbed.” O’Laughlin IIT at 302.

The Petitioner’s argument that the First Circuit “overlooked the
fact that ‘nothing was displaced, but the victim’s purse was on the floor”

is incorrect. Petitioner’s Brief, page 23.

The First Circuit cited the following facts (as found by the SJC)
with respect to the purse: the purse was found on the floor, and contained
Ms. Kotowski’s credit cards, about $28 in cash, and a checkbook.

O'Laughlin II] at 292. But the purse was not in the bedroom.

Actually, there was conflicting testimony at trial regarding the
location of the purse. Officer Skowron testified that the purse was on the
floor in the entrance to the half-bath off the living room (Tr. Vol. 3°51).
Officer Hill testified that the purse was on the counter in the kitchen (Tr.
Vol. 7:21). Neither of these locations was near the victim’s bedroom
where the assault occurred. And in any event, the purse contained $28
cash, credit cards, and a checkbook, a fact acknowledged by the SJC.

O'Laughlin IT at 194.

There is simply no evidence that the purse was displaced. Any

a.

inference that the purse was cisplaced is based on pure speculation, along
with any inference that O’Laughlin ever touched it. Moreover, the First
Circuit's conclusion that the financial motive was “weak at best” was even

further supported by the fact that the purse contained cash.

The Petitioner next complains that the First Circuit dismissed the
SJC’s conclusion that the jury could draw a reasonable inference that
O’Laughlin was frightened off before he could steal anything when he

heard the neighbor speaking on the telephone. Petitioner's Brief, page 23.

This argument provides a specific example of the objective
unreasonableness of the SJC’s decision. Here is illustrated not only the
weakness of the motive necessary for O’Laughlin to enter the apartment,
but also the illogic of the reason offered to explain his exit without

stealing or disturbing anything at the crime scene.

As the First Circuit understood, and the SJC failed to recognize, a
reenactment demonstrated that the assailant would not have been able
hear the neighbor call the police. O’Laughiin IIT at 302, fn. 18. The
reenactment failed to demonstrate that a person could distingwish any
words spoken by an upstairs neighbor, although a voice could be heard
(Tr. Vol. 8:76). And during the reenactment, no one was screaming (Tr.

Vol. 8:76). The SJC’s conclusion that O’Laughlin fled, in the midst of an

attack where the victim was screaming, because he heard the neighbor

call the police, is unreasonable.

The First Circuit astutely concluded that “[E]ven if the assailant
deduced that the neighbor was calling the police in response to the attack,
no rational juror could conclude that the placement of this phone call
frightened him off given the volume and duration of Mrs. Kotovski's

screams.” O’Laughlin IIT at 302.

The First Circuit’s further assessment that “the assailant's actions
are inconsistent with O'Laughlin's purported financial motive” further
supports the conclusion that the government’s evidence of motive was
“weak at best” and failed to provide the proper inferences necessary to
support the conviction. See Petition, page 24; O'Laughlin II/ at 302. The
Petitioner’s theory that O’Laughlin had a financial motive for entering
the apartment, and then abandoned the apartment after the attack

“spiraled out of control” is pure speculation.

The Petitioner next complains about the First Circuit's assessment
of the evidence that O’Laughlin possessed a master key. Petition, page
24. The First Circuit acknowledged that “one possible inference is that
O'Laughlin used his master key to enter Mrs. Kotowski's apartment.”
O’Laughlin ITT at 302. The court goes on to find: “It is notable, however,

that several others on the maintenance staff possessed a master key.

Also, Mrs. Kotowski could have let someone familiar to her into the

apartment.” Jd.

The Petitioner complains that the First Circuit further ignored
individual pieces of evidence. Petition, page 25. But the First Circuit
opinion demonstrates that it did not ignore any of the evidence the
Petitioner cites, such as the telephone records. See O’Laughiin IIT at 290-

291.

The First Circuit later addresses some of these minimal pieces of
circumstantial evidence: “We acknowledge the many strands of
circumstantial evidence the prosecution has presented in this case;
however, when viewing this evidence in its totality, as we must do on
habeas review, that evidence is far from sufficient to establish

O'Laughlin's guilt under Jackson.” O’Laughlin III at 308.

Thus the First Circuit, while acknowledging that there was some
circumstantial evidence, could not find that the totality of these “strands”

sufficed to identify O’Laughlin as the assailant.

The Petitioner next complains about the First Circuit’s conclusions
regarding the baseball bat. Petition, page 25. It is important to note that
the Petitioner emphasizes the proximity of the bat to the crime scene, but
does not, and can not, argue that the bat was actually the assault

weapon.

As the First Circuit astutely concluded, “there was little evidence

-30-

connecting the aluminum bat, a non-unique item in a residential
complex, to the crime scene apart from the fact that it was found
twenty-five yards from the residential complex the following day and the
use of such an object was ‘consistent’ with Mrs. Kotowski's injuries.”

O'Laughlin ITT at 302.

This was the correct conclusion, where the evidence failed’ to
establish that the bat was the assault weapon. The First Circuit

considered the SJC’s factual findings regarding the bat:

“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.”

O'Laughlin ITT at 294.

Therefore, the DNA testing on the bat merely suggested the

possibility that one in two people could have contributed to the sample

from the tape (Tr. Vol. 7:204,244). The DNA expert further testified that
she did not even detect the presence of blood on the sample she examined

(Tr. Vol. 7:232,236)."

Moreover, as the First Circuit found, the only witness to hear the
assault was the upstairs neighbor, a carpenter, who heard the sound of
wood striking wood, but the baseball bat alleged to be the assault weapon

was a hollow aluminum bat. O'‘Laughlin I// at 291, 302.

The SJC noted that the bat was found on the ground a short
distance from the victim's apartment. O’Laughlin J] at 199. The Court
further found that, “although covered with leaves and debris, the bat was
otherwise clean when found.” /d. at 200. The SJC did not find, as the
Petitioner argues, that the bat was “recently cleaned.” See Petition, page
25. When the police officer found the bat, it appeared clean and was
slightly covered with leaves and grass (Tr. Vol. 6:69-70). But the trial
judge struck from the record testimony that the bat had not been there
for some time (Tr. Vol. 6:72). In other words, the record does not support
the inference that the bat was only there for a short period of time

(meaning that the assailant had recently placed it there), and had

This led the Massachusetts Appeals Court to conclude that because forensic
testing revealed several small stains “that could have been blood” and the DNA merely
showed that there was a possibility that it could have been used to commit the crime, it
was “just as likely that it had been used in a baseball game, particularly where the
testing suggested that the DNA was not fresh.” O'Laughiin / at 819

‘
2.

“recently been cleaned”.

All the evidence fails to create the necessary inferences to conclude
that the bat was the assault weapon. The First Circuit was correct in its
evaluation of the evidence and determination that the SJC’s opinion was

objectively unreasonable.

The Petitioner complains that the First Circuit minimized the
evidence of the bruises and marks on O’Laughlin’s face. Petition, page 26.
The First Circuit found 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 IIT at 304.

The evidence regarding whatever witnesses observed on
O’Laughlin’s face does not support the inference that he was injured
during the attack. Morever, the evidence was contradictory. Officer
Tierney testified that he observed a scratch on O’Laughlin’s left cheek, a
cut on his chin and a bruise on his neck, but he was not certain if the
injuries were fresh. O’Laughlin J] at 201. The other officers made no such
observation: Officer Buell merely observed a small circular mark (Tr. Vol
6:227), and Officer Hill admitted that it might have been just a blemish

(Tr. Vol. 7:34). O’ Laughlin consistently answered that it was a pimple (Tr.

Vol. 4:54; 6°227.256:; 7:34). His ex-wife, a Commonwealth witness,

testified that on the day prior to the assault she had seen a blemish on

his face that she believed was infected (Tr. Vol. 3:193).

In fact, the SJC contradicted itself when it acknowledged that the
police could not be certain that the marks were fresh, but nevertheless

concluded that O’Laughlin could have sustained them during the assault.

O'Laughlin IT at 201.

It must finally be emphasized that there was no medical evidence
that Ms. Kotowski scratched the assailant (although she had defensive
wounds on her hands), leaving the conclusion that O’Laughlin sustained

the marks during the assault totally to conjecture.

For these reasons, the First Circuit correctly found that the
evidence regarding the marks had minimal probative force to prove that
he was the assailant, The Petitioner's argument that O’Laughlin could
have :eceived the “bruises and marks” during the assault is pure

speculation.

The Petitioner argues that the First Circuit’s characterization of
the blood evidence is flawed. Petition, page 27. The First Circuit found,
“Considering the large amount of blood, it is difficult to fathom how
O'Laughlin was able to avoid having any blood or other DNA evidence

connect him to Mrs. Kotowski.” O'Laughlin III at 304

The First Circuit here is further commenting on the absence of any

She

.physical evidence connecting O'Laughlin to the crime scene. There is no

flaw in the First Circuit's astute observation that despite the copious
amount of blood at the crime scene, there was none on O’Laughlin or in
his apartment, despite the efforts made by the prosecution to explain why

there would be no blood on the assailant.

The Petitioner suggests that the First Circuit perhaps had imposed
a requirement that the prosecution present blood or DNA evidence to
connect O’Laughlin to the crime. Petition, page 28. Of course, the First
Circuit never placed any such requirement on the prosecution, and
repeated several times throughout its opinion that no direct evidence was
required and circumstantial evidence, had it been sufficient, would have

met the Jackson standard.

The Petitioner complains about the First Circuit's assessment of
the consciousness of guilt evidence. Petition, page 26. But the First
Circuit was correct when it found that the evidence of consciousness of
guilt was inoufficient to allow jury to permissibly conclude O’Laughlin’s

guilt beyond a reasonable doubt. O'Laughlin I// at 303.

With respect to consciousness of guilt, the First Circuit compared
the instant case to Juan H. v. Allen, 408 F.3d 1262, 1278-1279 (9th Cir.
2005), where the evidence is “far more reflective of consciousness of guilt

than what we have here”. O’Laughiin IT at 307. In Juan H., the Ninth

o35-

Circuit granted habeas relief, and the Supreme Court denied certiorari.

Juan v. Allen, 546 U.S. 1137 (2006).

In short, the First Circuit did not ignore any circumstantial
evidence when it concluded that: “Based on the record before us and
drawing all reasonable inferences in favor of the prosecution, we hold .
that it would be overly speculative to conclude O'Laughlin to be the

| assailant beyond a reasonable doubt. Accordingly, we conclude that the
SJC's decision to uphold O'Laughlin's conviction was objectively

unreasonable.” O’Laughlin IIT at 308.

CONCLUSION

For all the above-stated reasons, the Respondent Michael
O’Laughlin requests that this Honorable Court deny the Petition for

Certiorari.

Respectfully submitted,
MICHAEL O’LAUGHLIN
By his attorney:

ge)

Kennetl(, shor |

P. O. Box 470725
Brookline, MA 02447
617-277-8544

wh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1150%3A2. Public record. Not legal advice.