Professional Documents
Culture Documents
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
convicted,
along
with
co-defendant
O'Neil
Francis,
by
Massachusetts
Appeals
Court
("MAC")
in
November
2010.
Court
Commonwealth
v.
("SJC")
denied
Francis,
further
459
Mass.
review
1110,
in
947
April
2011.
N.E.2d
42
Hodge
MAC opinion did not expressly address by name the federal issue
that was raised by petitioner at trial and in his habeas petition,
it reached the merits of the petitioner's arguments on its own,
without the deference to the state court decision required by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28
U.S.C. 2254.
The parties in this habeas case have characterized it as
presenting a procedural bar issue of whether the MAC permissibly
-2-
found
petitioner
had
waived
constitutional
objections
to
the
claims.
As a
neither
Chambers.
an
unreasonable
application
nor
contrary
to
28 U.S.C. 2254(d)(1).
In addition, to the extent the MAC found in a footnote
Factual Background
-3-
Both
Hodge and Francis were charged with and ultimately convicted of the
second-degree murder of Jones, see Mass. Gen. Laws ch. 265, 1,
and carrying a firearm without a license, see Mass. Gen. Laws ch.
269, 10(a).
at its Geneva Avenue stop, Jones boarded through the back door
along with around six other young men. After Jones and his friends
boarded, there was an altercation involving Jones, Hodge, and
Francis.
28 U.S.C. 2254(e)(1).
That
Teti v. Bender,
testimony:
Eyewitnesses testified that [Francis and
Hodge] boarded the bus together and sat down
-4-
together.
As the bus approached the Geneva
Avenue bus stop, witnesses saw Hodge pass a
camouflage knife to Francis, who passed it
back to Hodge; and, when [Jones] and his
friends boarded the bus at that stop, both
[Francis and Hodge] got up to exit and
confront the victim. Shalonda Smith testified
that she heard Hodge say, "[W]e've got that
thing," and "[W]e could get him now, why wait,
like, what are we waiting for," and "I should
shank him up," at which point Francis pulled
out a palm-sized gun.
Another witness, who
was driving directly behind the bus, heard a
"loud pop," and saw [Francis and Hodge]
standing outside the rear of the bus, smiling
and laughing. The same witness also saw Hodge
tuck a black, semiautomatic gun into his
waistband or pants pocket.
[Francis and
Hodge] were observed fleeing from the scene
together and later were seen running away from
the place where the murder weapon was found
together with an army knife and clothing
matching that worn by Hodge. On the basis of
this evidence, a reasonable jury could find
that Francis was guilty of second degree
murder and unlawful possession of a firearm
regardless of who fired the fatal shot.
Francis, 936 N.E.2d at *1.
The trial evidence showed that both Hodge and Francis
were detained for questioning shortly after the incident.
Hodge
He
In
of
Following
the
shooting.
the
shot,
Hodge
Hodge
claimed
claimed
he
that
heard
he
fled
gun
the
shot.
scene,
charge.
When Francis was interrogated, he refused to make a
statement to the police, invoking his right to counsel.
was released after questioning.
Francis
verbal completeness.
On the weekend of
March 19-20 after the March 18 shooting, Francis spoke with Hodge's
stepbrother, Spencer Gray.
he and Hodge boarded the bus together, having just come from a
medical appointment for Hodge.
together when Jones and the other young men boarded and started an
argument with him and Hodge.
Francis also said that Hodge had gotten off the bus before the
shooting.
his law partner Helen Holcomb, that Francis and Hodge had attempted
to exit the bus when Jones and his associates boarded.
Francis
said that Jones and the other young men blocked the doorway, at
which point one of the young men pulled a gun and pointed it at
Hodge.
After
wresting the gun away, Francis turned and observed Jones, who,
according to Francis, was reaching to his waist.
At that point,
Francis claimed, the young man from whom Francis had taken the gun
tried to grab it back.
According to Cunha, Francis insisted that his finger was not on the
trigger when the gun fired.
Francis purportedly
Francis
insisted to
-8-
Following a non-
end,
the
Commonwealth
chose
not
to
introduce
In
Francis's
trial,
Hodge,
having
earlier
in
the
severance
if
the
Commonwealth
were
trying
to
introduce
this
testimony[.]").
Hodge's
trial
counsel
argued
next
that
Francis's
He says, it
kicked up, I shot him, and -- and remember this is in the context
-- this is the context of everyone thinking that Hodge had been
arrested as the shooter.").
Finally, Hodge's trial counsel argued that Francis's
statements
were
admissible
as
evidence
of
consciousness
of
-10-
9 Tr. 212.
Hodge's trial
counsel explained:
[T]hat was a case in which a co-defendant had
made a confession and the trial judge excluded
the confession as hearsay. The confession -in the confession he exculpated the defendant
who was on trial and the princip[le] that I
glean from -- from that case and -- and the
U.S. Supreme Court reversed the conviction
saying state -- state rules on hearsay -generally we -- we subscribe to state rules on
hearsay, but they cannot be used to interfere
with a defendant's right to a fair trial. And
it seems to me that we're -- we're in that
territory here. That . . . to prevent me -Hodge from getting the statements that this
co-defendant made and arguing as I have
indicated to the court would in effect deprive
him of an effective defense. And you can't
use technical rules of hearsay to prevent or
to interfere with a defendant's right to a
fair trial.
Id. at 212-13.
After hearing testimony from Cunha and Spencer Gray on
dire,5
voir
the
trial
court
excluded
Francis's
statements
as
to the testimony of Mr. Cunha, there was no crime that Mr. O'Neil
Francis was confessing to or making a statement about."
Id. at
215; see also id. at 209 ("[Francis] said he didn't fire the
gun.").
Beyond
that,
the
trial
court
reasoned,
Francis's
in
the
presence
of
three
older
members
of
the
co-
Id. at
215.
Last, as to the consciousness of guilt theory, the trial
court reasoned that Francis's statements lacked the indicia of
reliability to be admissible under that rubric.
Id. at 216.
MAC Proceedings
On appeal to the MAC, Hodge argued, among other things,
-12-
culprit
evidence,
and
(3)
even
if
not
otherwise
merits
by
confessions
finding
nor
trustworthiness.
the
federal
due
that
Francis's
otherwise
Id. at *2.
process
statements
accompanied
by
were
neither
indicia
of
argument.
It
did,
however,
cite
Commonwealth v. Hearn, 31 Mass. App. Ct. 707, 711, 583 N.E.2d 279
(1991), a case in which the court both rejected an "against penal
interest" argument and rejected a Chambers due process argument as
failing for identical reasons.
Id.6
D.
Id.
at
the
*5-6.
The
district
court
concluded
that
"[u]nder
-14-
Id. at *11.
The
July
12,
2013,
the
district
court
granted
the
respondent's motion to stay the June 14, 2013 order pending appeal,
and denied petitioner's motion for release.
II.
We review de novo a district court's decision to grant or
deny a habeas petition under the AEDPA. O'Laughlin v. O'Brien, 568
F.3d 287, 298 (1st Cir. 2009).
We take this case in two steps. The first is whether the
MAC in fact addressed and rejected the Chambers claims as made at
trial.
-15-
Thus its
We explain more
below.
As to the second, the district court correctly observed
that the MAC held that petitioner's newly articulated third party
theory of admissibility had been procedurally defaulted at trial.
Thus, to the extent that petitioner seeks to assert a new due
process claim based upon a third-party culprit theory, we hold that
the MAC's procedural default holding acts as a bar to that claim
only on federal habeas review.
A.
federal
claim
proceedings."
"adjudicated
28
U.S.C.
on
the
merits
2254(d).
Under
in
State
the
court
AEDPA,
an
an
unreasonable
application
of,
clearly
established
Id.
-16-
AEDPA."
This
96.
The district court held that the MAC did not adjudicate
petitioner's due process claims as presented at trial on the
merits.
We disagree.
The fact that the MAC did not expressly cite to Chambers
-17-
27, 31 (1st Cir. 2009); see also id. ("Such formalism would be
contrary to the congressional intent expressed in AEDPA.").
In this case, the MAC's holding adequately addressed the
merits of petitioner's admissibility arguments raised at trial and
argued on appeal.
found
that
reliability.
Francis's
Id. at *2.
statements
lacked
In addition, the
all
indicia
of
similar
to
constitutional grounds.
petitioner's
Id.
on
both
state
and
federal
Chambers,
due
process
will
sometimes
require
9 Tr. 220.
Francis's
these
circumstances,
we
conclude
that
the
MAC
-19-
To
the extent the grant of habeas was predicated upon those preserved
Chambers claims, Hodge's petition for habeas must fail unless the
MAC's decision "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States."
find no such error by the MAC here.
28 U.S.C. 2254(d).
We
no claim, nor could he, that the MAC's decision "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding."
B.
Id.
The MAC did not say whether it considered the new "third-
-20-
The
district
court,
as
said,
erroneously
construed
The
the
MAC,
evidence"
though,
as
did
not
shorthand
use
for
term
Hodge's
"third
preserved
party
culprit
argument
under
process
arguments
made
at
trial.
To
the
extent
that
Id.
-21-
60 (2009).
We lay out the various steps in the adequacy of a
procedural bar analysis.
ground to bar habeas review, the state procedural rule that is the
basis for a procedural default ruling must be regularly and
consistently enforced by the state courts."
Lee v. Kemna,
534 U.S. 362, 376 (2002) (quoting James v. Kentucky, 466 U.S. 341,
348 (1984)).
applied, see, e.g., Barr v. City of Columbia, 378 U.S. 146, 149
-22-
411,
423-24
(1991).
"We
have
held,
with
regularity
F.3d 39, 44 (1st Cir. 2010); see also Gunter v. Maloney, 291 F.3d
74,
79
(1st
Cir.
2002)
(finding
that
Massachusetts
courts
(1989) (quoting Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 154
(1979)).
v. Lape, 657 F.3d 97, 107 (2d Cir. 2011) ("Even if we agreed with
the dissent that its characterization of counsel's statement was
'more likely,' the existence of a plausible contrary view [by the
state court] leads us to conclude that the application of the rule
is not exorbitant."); Barnett v. Roper, 541 F.3d 804, 811 (8th Cir.
2008) ("Because no . . . unforeseeable circumstances justifying a
relaxation
of
[petitioner]'s
the
[procedural]
case,
we
cannot
requirements
say
that
the
were
present
[state]
in
Court's
-24-
its opinion, there was no harm to Hodge from his counsel's failure
to articulate that third-party culprit theory at trial.
We add a final word.
adopted
many
mechanisms
to
handle
their
case
load
Id. at 1095.
III.
We reverse the judgment granting the petition for habeas
corpus.
with prejudice.
-25-