David JACKSON, Petitioner, Appellant, v. John MARSHALL, Respondent, Appellee.
No. 15-2519
United States Court of Appeals, First Circuit.
July 19, 2017
Susanne G. Reardon, Assistant Attorney General, Criminal Bureau, Appeals Division, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.
Before TORRUELLA, KAYATTA, and BARRON, Circuit Judges.
David Jackson was convicted of first degree murder in Massachusetts Superior Court. The Massachusetts Supreme Judicial Court (“SJC“) affirmed his conviction and rejected his collateral challenges. In turn, the United States District Court for the District of Massachusetts denied his petition for a writ of habeas corpus under
I. Background1
Jackson‘s conviction arose out of a robbery and fatal shooting that occurred in April 1990 in an apartment complex in Boston. No physical evidence tied Jackson to the crime. But three months after the crime was perpetrated, the Commonwealth‘s chief witness, Steven Olbinsky, gave two statements describing the event to the police. In those statements, and then almost three years later at trial, he reported that on the night of the crime, a
Alan J. Black, Springfield, MA, for appellant.
man
At trial, the prosecutor stated that “the Commonwealth . . . is offering nothing to Mr. Olbinsky for his testimony. There‘s been no rewards, there‘s been no promises, there‘s been no inducements, no offers for his testimony. If there were, you‘d know about it.” Olbinsky also testified that he did not receive any inducements for his testimony. See id. In closing argument, in response to Jackson‘s counsel‘s suggestion that it was unlikely that Olbinsky was testifying without some kind of quid pro quo, the prosecutor countered by saying that Olbinsky, who had in fact been indicted with Jackson on one count of first degree murder, was “on trial” for the same offense. The prosecutor told the jury, “I‘ve got the case and if he got a deal, you would have known about it. Let me repeat that. You would have known about it.”
As Jackson knew, however, Olbinsky was not literally “on trial.”3 In fact, his case never left the starting gate. Instead, after Olbinsky‘s attorney filed a motion to dismiss the indictment for lack of sufficient evidence, the trial court continued his case seven separate times. The Commonwealth never opposed Olbinsky‘s motion to dismiss the indictment, and two weeks after Jackson‘s trial concluded, the motion was granted.
Convicted on April 16, 1993, Jackson was sentenced to life in prison. He took a direct appeal to the SJC and moved for a new trial pursuant to Rule 30 of the Massachusetts Rules of Criminal Procedure. Among other things, he argued that “the prosecutor impermissibly bolstered the credibility” of Olbinsky “by misrepresenting to the jury that no deal had been made in exchange for Olbinsky‘s testimony.” Id. This claim was “actually two separate claims,” first, “that the prosecutor stated that no inducement had been offered for
Jackson unsuccessfully pursued a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts in 1999. In 2002, he filed a second Rule 30 motion in state court. In this motion, he claimed to have discovered new evidence that Olbinsky testified subject to inducements. The new evidence consisted of a bail agreement between the Commonwealth and Olbinsky, which Jackson said he did not know existed until he made a public records request in July 2002. The agreement, entered on the public docket in Olbinsky‘s case almost a year before Jackson was tried, provided that Olbinsky would be subject to electronic monitoring and a curfew while out on bail, which Olbinsky had posted three weeks prior, once the trial judge in his case reduced his bail from $25,000 to $5000 cash.
Jackson‘s motion was denied, and a single justice of the SJC denied leave to appeal that denial on October 23, 2003. See
In May 2004, Jackson moved pursuant to
In his subsequent motion for an evidentiary hearing, Jackson explained the Oregon evidence. Apparently, Olbinsky absconded to Oregon a few months after the shooting. On March 13, 1992, he was indicted with Jackson on a charge of first degree murder. Oregon police arrested Olbinsky pursuant to the Massachusetts war-
rant,
Three days later, at the urging of an assistant district attorney in Massachusetts, an Oregon prosecutor requested Olbinsky‘s Oregon arrest warrant be recalled. The Oregon prosecutor‘s notes stated that “we‘re trying to work [with] prosecutors in Boston to treat [Olbinsky] nicely, as he‘s a material witness in a murder case there.” In a tape-recorded proceeding in Oregon, a prosecutor stated: “Because of the Massachusetts prosecutor‘s need to have this defendant as a witness in the homicide case, we had agreed to have the defendant released, take off our warrant on this offense so that this defendant could be released from custody back in Massachusetts.” In June 1996, long after Jackson was tried and convicted, Olbinsky pled no contest and was convicted on the possession charge, and the manufacturing/delivering charges were dismissed. He was sentenced only to a term of probation.
The district court denied Jackson‘s request for an evidentiary hearing but found that Jackson had shown good cause to be permitted to take discovery. See Jackson v. Marshall (Jackson II), 500 F. Supp. 2d 1, 6 (D. Mass. 2007). Jackson was allowed to propound discovery of “all documents of whatever name and nature” evidencing “promises, rewards, and inducements given to Olbinsky or on his behalf, including all actions taken in connection with the Oregon proceedings.” Id. He was also given permission to take two seven-hour depositions of the two Massachusetts prosecutors who had worked the case.
After conducting the allowed discovery, Jackson returned to the district court. Along with the evidence earlier presented, he submitted his attorney‘s affidavit describing her conversation in March 2007 with Olbinsky‘s Massachusetts defense attorney, who she averred stated that Olbinsky “was never anything more than a material witness and that the prosecutor had charged Olbinsky with murder in the first degree because he did not believe that out-of-state authorities would pay attention to a material witness warrant.” Jackson v. Marshall (Jackson III), 634 F. Supp. 2d 146, 150-51 (D. Mass. 2009). Jackson also submitted the transcripts of the two depositions, which he said revealed “little if anything more than what [he] learned through independent means,” because one of the prosecutors “had only a ‘vague memory’ of the case, and could not explain how Olbinsky came to be released on bail or why the Commonwealth did not oppose his motion to dismiss the indictment against him,” and the other prosecutor “was unaware that Massachusetts prosecutors had asked the Oregon authorities to treat Olbinsky ‘nicely,’ and could not remember how Olbinsky ‘ended up in court.‘” Id. at 153.
Because the SJC gatekeeper justice determined that the bail agreement was “readily discoverable” at the time of Jackson‘s trial, id. at 160, the district court found that Jackson‘s claim concerning the bail agreement—i.e., that under Brady v. Maryland, 373 U.S. 83, 87 (1963), prosecutors should have informed Jackson of the agreement
Jackson returned to state court and filed a third Rule 30 motion to exhaust his claim that the Commonwealth violated his due process rights by failing to disclose its intervention in Olbinsky‘s Oregon case. The state court denied Jackson‘s motion, but a single justice of the SJC granted Jackson‘s gatekeeper petition for leave to appeal. The SJC affirmed in a reasoned decision on the merits. See Commonwealth v. Jackson (Jackson IV), 468 Mass. 1009, 9 N.E.3d 844, 845-46, 849-50 (2014). Jackson4 came back to federal court once more, and the district court rejected both of his remaining claims. See Jackson v. Marshall (Jackson V), 148 F. Supp. 3d 152, 156-57 (D. Mass. 2015). His renewed request for an evidentiary hearing under
II. Discussion
A.
Under Brady, “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The duty to disclose extends to impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Jackson contends that the prosecution violated Brady and its progeny by failing to disclose either its intervention in Olbinsky‘s Oregon case or the purported fact that the Commonwealth did not actually plan to pursue the first degree murder charge against Olbinsky. Jackson also contends that the prosecutor violated his constitutional rights by allowing Olbinsky to testify dishonestly that he received no inducements for his testimony and by repeatedly representing to the jury that Olbinsky was not testifying subject to a deal or agreement. The district court, whose decision we review de novo, see Moore v.
Dickhaut, 842 F.3d 97, 99 (1st Cir. 2016) (citing Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007)), determined that Jackson‘s claims were exhausted in the state court, the state court adjudicated them on the merits, and the state court‘s decision did not warrant habeas relief under either
Jackson urges us to review the state court rulings de novo. But under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“),
Jackson first argues that the SJC did not decide his challenges on their merits because the court did not directly address his argument that the suppressed evidence demonstrates that the Commonwealth suborned Olbinsky‘s perjury and therefore requires a new trial based on the lower materiality threshold described in United States v. Agurs, 427 U.S. 97, 103 & n.9 (1976) (citing Mooney v. Holohan, 294 U.S. 103, 112 (1935), and Giglio v. United States, 405 U.S. 150, 153-54 (1972)). This argument misunderstands what an adjudication “on the merits” for AEDPA purposes entails. A state court does not fail to adjudicate a claim on the merits if it assesses the petitioner‘s claim but applies a legal standard other than the standard petitioner suggests. Cf. Lyons v. Brady, 666 F.3d 51, 54 (1st Cir. 2012) (articulating a presumption that, absent any contrary indication, a state court decision has adjudicated a claim on the merits). Here there is no dispute that the SJC did evaluate, in a reasoned decision on Jackson‘s third motion for a new trial in 2014, whether Jackson received an unfair trial due to the Commonwealth‘s failure to disclose the prosecution‘s interventions in Oregon or the likelihood that Olbinsky‘s murder charge would be dismissed. See Jackson IV, 9 N.E.3d at 845-50. These actions and Olbinsky‘s lenient bail agreement are what Jackson claims demonstrate that Olbinsky testified subject to inducements and lied under oath when he claimed he received none. But as we will explain further below, in determining that no inducements were given, the SJC necessarily found that the prosecution did not suborn perjury. The SJC‘s decision not to apply the materiality standard described in Agurs was not a refusal to consider the merits of Jackson‘s claims, but was rather a choice to apply a different materiality standard based on the facts in the record as the SJC understood them. The question of whether the SJC applied the correct materiality standard when evaluating these claims is one that we review through the lens of AEDPA deference. See Mastracchio v. Vose, 274
F.3d 590, 604 (1st Cir. 2001) (citing Agurs, 427 U.S. at 103).
Jackson next insists that these claims should be granted de novo review because the SJC did not adjudicate them with a full grasp of the record. He contends that because “the prosecution did not disclose its deals with Olbinsky until long after the appeal on [Jackson‘s] motion for new trial, the SJC rendered its opinion on the clearly erroneous premise that there were no undisclosed promises, rewards [or] inducements.” Therefore, he says, we should find that the Brady materials in this case “surfaced for the first time during federal proceedings” and therefore merit de novo review. Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir. 2003) (citing Rojem v. Gibson, 245 F.3d 1130, 1140 (10th Cir. 2001), and Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002)).
It is literally true that some of the evidence Jackson relies upon in support of his petition did first surface during federal habeas proceedings. But all of that evidence was eventually presented to the SJC in the course of its collateral review. Furthermore, the record before us does not support Jackson‘s claim that the SJC‘s decision was issued before the prosecution admitted it made “deals with Olbinsky.” The Commonwealth‘s position has always been, and continues to be, that no deal was ever struck with Olbinsky. Thus, unlike cases in which a petitioner clears the hurdle imposed by
B.
We therefore move to the central question under AEDPA: whether the SJC‘s decision was contrary to clearly established Supreme Court precedent or was based on a clearly erroneous view of the factual record. See
Jackson does not mount a real challenge on the latter front. The SJC found the following facts, none of which Jackson seriously disputes: (1) Olbinsky gave materially identical accounts of the robbery before and after the dates on which inducements were allegedly given, see Jackson IV, 9 N.E.3d at 848; (2) defense counsel impeached Olbinsky on other bases, including his indictment on the same murder charge as Jackson, see id. at 846; and (3) other witnesses gave testimony with details that matched Olbinsky‘s account, see id. at 850. Jackson contends that the SJC should not have placed any weight on Olbinsky‘s matching early accounts, given a few months after the murder, because Olbinsky was under investigation or under
Jackson also protests that the SJC should not have credited the accounts of other witnesses whose highly incriminating testimonies included details that matched Olbinsky‘s, because those witnesses were unreliable. Specifically, he points out that the only people who testified to witnessing the crime could not identify him, and the three witnesses who claimed to see him after the crime wearing a trench coat and carrying a shotgun and loot were drug users and addicts, two of whom had criminal records and two of whom admitted they had used cocaine on the date of the crime. Jackson III, 634 F. Supp. 2d at 161-62 n.9. But while Jackson cross-examined those witnesses based on their criminal histories and drug use, he has never developed an argument that their testimonies should have been entirely excluded. It was thus the jury‘s prerogative to gauge the credibility of the witnesses, and it is our duty to “resolve[] all credibility issues in favor of the verdict.” Morgan v. Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012) (alteration in original) (quoting United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995)).
On this record, the SJC determined that Jackson was not entitled to a new trial because there was not a “substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial,” Jackson IV, 9 N.E.3d at 847 (quoting Commonwealth v. Tucceri, 412 Mass. 401, 589 N.E.2d 1216, 1223 (1992)), so the undisclosed evidence did not “cast[] real doubt on the justice of [Jackson‘s] conviction,” id. (quoting Commonwealth v. Grace, 397 Mass. 303, 491 N.E.2d 246, 248 (1986)). This analysis is akin to the materiality analysis set forth in one line of Supreme Court cases under Brady, which provides that “evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.‘” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting Bagley, 473 U.S. at 682); see Smith v. Cain, 565 U.S. 73, 75 (2012). In fact, the SJC views its standard under Tucceri as more favorable to petitioners than the prejudice standard imposed under Brady, see McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002), so by finding that the undisclosed evidence did not satisfy the lesser standard of Tucceri, the SJC found, a fortiori, that Jackson was not sufficiently prejudiced for his trial to be deemed unconstitutional under Brady, see Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003). That finding was not clearly erroneous.
Jackson‘s rejoinder is that the SJC should have applied a different materiality standard because he demonstrated that the prosecutor suborned perjury. Noting that “a prosecutor‘s knowing inducement of perjury is treated more harshly than a failure, which could be inadvertent, to disclose exculpatory evidence,” Perkins v. Russo, 586 F.3d 115, 119 (1st Cir. 2009), Jackson insists that his is the case recognized in Agurs in which “the undisclosed evidence demonstrates that the prosecution‘s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury,” 427 U.S. at 103. He therefore argues that the SJC should have applied a “strict standard
Unlike Mastracchio, however, this case presents us with a factual record from which the SJC reasonably, if implicitly, concluded that Olbinsky did not perjure himself in denying receipt of prosecutorial inducements. The SJC noted that “Olbinsky . . . testified that he had received no inducements for his testimony.” Jackson IV, 9 N.E.3d at 846. It then concluded:
[E]ven assuming that the Commonwealth requested that Oregon withdraw its warrant so that Olbinsky could remain free on bail in Massachusetts and that, at some point after the defendant‘s trial, it communicated to Oregon that Olbinsky had given helpful testimony at the defendant‘s trial, there is no evidence demonstrating that the Commonwealth made these efforts to induce Olbinsky‘s cooperation.
Id. at 848. This is a reasonable interpretation of the record. Neither police officers nor Massachusetts prosecutors, when interviewed and deposed, recalled making any promises whatsoever to Olbinsky. To the contrary, the officers involved swore affidavits stating that they were certain they offered Olbinsky no inducements. And the Oregon prosecutor‘s notes and the tape of the Oregon proceedings indicated that Oregon officials sought to be “nice” to Olbinsky and release him on bail in Massachusetts, but this is at least as indicative, if not more, of Oregon‘s interest in cooperating with Massachusetts in its effort to prosecute a significant violent crime as it is of inducement.
By reasonably finding that the record lacked evidence supporting a claim that the Commonwealth interceded in the Oregon proceedings and otherwise treated Olbinsky nicely as consideration for a deal to deliver favorable testimony, the SJC necessarily determined that Olbinsky did not perjure himself by representing to the jury that he was not testifying in exchange for inducements. The SJC therefore did not depart from clearly established Supreme Court precedent when it applied the materiality standard provided in Tucceri.
Second, Jackson contends that the SJC misapplied Brady and its progeny because the facts in this case required the SJC to find that failing to disclose the Commonwealth‘s intervention in Olbinsky‘s pending case in Oregon—evidenced by the Oregon prosecutor‘s notes, the tape of the Oregon proceedings, and the fact that Olbinsky ultimately escaped with a slap on the wrist for a serious drug crime—prejudiced Jackson and rendered his trial unfair. But “[w]e do not . . . automatically require a new trial whenever a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict.” United States v. Dumas, 207 F.3d 11, 15 (1st Cir. 2000) (second alteration in original) (quoting Giglio, 405 U.S. at 154,
Giglio, 405 U.S. at 154);
Finally, Jackson argues that the evidence clearly shows that the Commonwealth never intended to prosecute Olbinsky for first degree murder. Addressing this argument calls for defining precisely what the argument is. Jackson learned that after his trial the case against Olbinsky was dismissed without serious opposition by the government. Nothing in Brady, though, requires prosecutors to do the impossible: to disclose future events that have not yet occurred. So Jackson must be arguing that the new information about what the government did after trial implies other information that existed prior to or during trial, yet was itself not disclosed.
Were that the case—that is to say, were it true that there existed material exculpatory or impeaching information before or during trial that was not disclosed—Jackson would have something to talk about. All he has, though, is Olbinsky‘s bail agreement and his surmise and speculation that there was a deal with Olbinsky to later drop the charge. This surmise and speculation was enough to get Jackson discovery and a return trip to the SJC. Nothing in this record, though, leads us to conclude that the Massachusetts courts erred in remaining unconvinced that Olbinsky testified subject to a deal with prosecutors. And if there was no deal, then there was nothing about a deal to disclose. Nor can Jackson say that he should have nevertheless been able to try out this “implied deal theory” on the jury. As we have already noted, the implication arises from a post-trial occurrence that obviously could not have been disclosed to jurors.
So, too, goes Jackson‘s alternative theory that the post-trial dismissal of the murder charge against Olbinsky suggests that, before or during Jackson‘s trial, prosecutors had no intention to press the pending charge against Olbinsky. This theory fails unless, for starters, it was unreasonable for the SJC not to find that such an intent existed. The record evidence does not compel that conclusion. Moreover, Jackson points us to no clearly established federal law requiring prosecutors to disclose their unilaterally held, present intentions for future dealings with witnesses in a case.
To the extent Jackson instead claims that Olbinsky faced a bona fide murder charge but knew that it was likely to be dismissed if he cooperated with prosecutors, Jackson‘s counsel had all he needed at the trial to make that argument, and did so. Even after developing the record through the course of direct and collateral review, only post-hoc, speculative inferences support Jackson‘s claim that a deal between Olbinsky and the Commonwealth existed. Nothing in this record leads us to conclude that the Massachusetts courts erred in remaining unconvinced that there was a deal with Olbinsky. The SJC‘s decision to reject Jackson‘s Brady challenge did not contravene or misapply Supreme Court precedent, and was not contrary to the evidence in the record.
C.
Finally, Jackson asks that he be allowed to supplement the record in an
The district court correctly found that Jackson failed to “overcome the limitation of
III. Conclusion
What never emerged from the information produced by the Commonwealth or from the formal and informal discovery Jackson conducted was any direct evidence that the Commonwealth ever promised Olbinsky anything. At best, Jackson is left to argue that because prosecutors in the Commonwealth and Oregon went easy on Olbinsky, and because Oregon prosecutors were asked to treat him “nicely,” the Commonwealth must have so promised. Nothing here, though, compels such an inference, or otherwise renders unreasonable the contrary view of the SJC in its application of legal rules well aligned with the requirements of federal constitutional law. For this basic reason, Jackson‘s request for habeas relief fails.
We affirm the decision of the district court. Jackson‘s petition for habeas corpus is denied.
Lizbeth VARGAS-COLÓN, in representation of her minor daughter, L.C.V.; Jaime Manuel Cedeño-Vargas; Jaime Alexander Cedeño-Vargas, Plaintiffs, Appellants,
v.
FUNDACIÓN DAMAS, INC.; Banco Popular de Puerto Rico, d/b/a Banco Popular de Puerto Rico, Defendants, Appellees,
John Does 1, 2 and 3; A, B, C Corporations; Unknown Insurance Companies A through H, Defendants.
Nos. 16-1213 16-1620
United States Court of Appeals, First Circuit.
July 19, 2017