Mendes v. Brady, 2011 U.S. App. LEXIS 18628

Mendes was convicted of first-degree murder in Massachusetts for killing his wife; evidence was largely circumstantial with suspected motive to control her inheritance for drugs and prostitution.
Indictment and prosecution occurred thirteen years after the crime, following Mendes's admission to two witnesses.
On direct appeal, Mendes was represented by new counsel, but did not raise ineffective-assistance claims against trial counsel; he challenged admission of a note purportedly written by the victim.
Massachusetts Supreme Judicial Court held the note admissible and found it to be a minor, non-prejudicial piece of evidence, with or without the note’s status as the victim’s writing.
Mendes sought state post-conviction relief alleging ineffective assistance in trial counsel for challenging the note’s admission and for authorship; the state court denied on the merits.
The gatekeeper under Mass. Gen. Laws ch. 278, § 33E denied leave to appeal as the claim was not new and substantial; Mendes then filed a federal habeas petition under 28 U.S.C. § 2254.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the new-and-substantial gatekeeper rule for Section 33E reviews is adequate and independent.	Mendes argues the gatekeeper rule is not adequately or independently applied.	Commonwealth contends the rule is consistently applied and adequate under federal review.	Adequate and independent; gatekeeper rule applies here.
Whether Section 33E review can be categorically separated from ordinary collateral review.	Pina suggests possible limits on waiver; not controlling for Section 33E cases.	Massachusetts practice in § 33E permits broader review for ineffective assistance and supports categorical separation.	Section 33E merits separate, broader review; applicable here.
Whether Walker v. Martin affects the adequacy of the procedural bar in this case.	Walker may cast doubt on the rigidity of the bar.	No surprise or unfair application; rule remains adequate.	Walker supports continued use of the gatekeeper rule; adequate here.
Whether the gatekeeper properly treated the claim as new and substantial rather than merits-based.	Gatekeeper considered the claim's merits, not just its novelty.	Gatekeeper correctly focused on substantiality and novelty; merits discussion was ancillary.	Gatekeeper properly applied new-and-substantial standard; bar maintained.

Yeboah-Sefah v. Ficco, 556 F.3d 53 (1st Cir.2009) (adequacy of the new-and-substantial rule for § 33E cases)
Pina v. Maloney, 565 F.3d 48 (1st Cir.2009) (non-new claims may be reviewed under gatekeeping standards)
Commonwealth v. MacKenzie, 413 Mass. 498 (Mass. 1992) (broad scope of review for ineffective assistance in § 33E context)
Commonwealth v. Drew, 447 Mass. 635 (Mass. 2006) (review under substantial risk of miscarriage of justice for direct-review-raised claims)
Dickerson v. Attorney Gen., 396 Mass. 740 (Mass. 1986) (special gatekeeping framework for § 33E petitions)
Walker v. Martin, 131 S. Ct. 1120 (2011) (state-law procedural bars can be adequate if not applied in a discriminatory or unfair manner)
Zinser, 446 Mass. 807 (Mass. 2006) (Massachusetts practice requiring consideration of all claims; context for § 33E)
Novo, 449 Mass. 84 (Mass. 2007) (invitation to file additional post-conviction record under § 33E; evolving standards)
Harris v. Reed, 489 U.S. 255 (U.S. 1989) (plain-statement requirement for procedural default)
James v. Kentucky, 466 U.S. 341 (U.S. 1984) (recognition of procedural bars and fairness considerations)