United States District Court, D. Massachusetts
David Jackson, Petitioner: Alan J. Black, LEAD ATTORNEY, Alan
Black, Attorney at Law, Northampton, MA; Mark L. Stevens,
LEAD ATTORNEY, Law Office of Mark Steves, Salem, NH.
John Marshall, Respondent: James J. Arguin, LEAD ATTORNEY,
Office of the Attorney General, Appeals Division, Boston, MA;
Susanne G. Reardon, LEAD ATTORNEY, Office of the Attorney
General, Trial Division, Boston, MA.
G. YOUNG, UNITED STATES DISTRICT JUDGE.
David Jackson (" Jackson" ), asks this Court for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his conviction for armed robbery, burglary, and
first-degree murder in the Massachusetts Superior Court
sitting in and for the County of Suffolk. Pet. Writ Habeas
Corpus (" Habeas Pet." ), ECF No. 4. In 2009, this
Court stayed a previous petition for habeas corpus pending
further proceedings in the Massachusetts courts regarding two
of Jackson's claims. Jackson v. Marshall (" Jackson
II" ), 634 F.Supp.2d 146, 163-64 (D. Mass. 2009). After
this Court issued a stay of his habeas corpus petition,
Jackson filed his third motion for a new trial in the state
court. Commonwealth v. Jackson (" Commonwealth
III" ), 468 Mass. 1009, 1009, 9 N.E.3d 844 (2014). The
Massachusetts Supreme Judicial Court (" SJC" )
upheld the trial court's denial of his motion.
Id. at 1013. Now that Jackson has exhausted his
state avenues of relief, this Court adjudicates his remaining
claims: that (1) the prosecutor misrepresented to the jury
that Steven Olbinsky (" Olbinsky" ) would be
prosecuted for murder, thus impermissibly bolstering his
credibility, and (2) Jackson's due process rights were
violated by the Commonwealth's failure to disclose the
favorable treatment it requested for Olbinsky. See
Pet'r's Br. Supp. Pet. Habeas Corpus ("
Pet'r's Br." ) 22-24, 26, 28, ECF No. 117.
direct appeal, these claims might have succeeded. This Court
is far removed from that, however, and at this point can only
grant Jackson his requested relief if he overcomes a "
formidable barrier," Burt v. Titlow, 134 S.Ct.
10, 16, 187 L.Ed.2d 348 (2013), the Antiterrorism and
Effective Death Penalty Act of 1996 (" AEDPA" ), 28
U.S.C. § 2241 et seq. (2000). While Jackson does not
clear this hurdle, the Court nevertheless briefly recounts
his post-trial discoveries that are relevant to his current
claims because they give the Court pause.
Court has discussed in detail the factual and procedural
background of Jackson's case in its 2007 order, Jackson
v. Marshall (" Jackson I" ), 500 F.Supp.2d 1, 2-4
(D. Mass. 2007), and in its 2009 order, Jackson II, 634
F.Supp.2d at 149-53. The SJC has also weighed in on the case
by denying three separate motions for a new trial.
Commonwealth III, 468 Mass. at 1013; Memorandum of Decision &
Order, Commonwealth v. Jackson (" Commonwealth
II" ), No. SJ-2003-0065, (Mass. Oct. 23, 2003), ECF No.
13;  Commonwealth v. Jackson
(" Commonwealth I" ), 428 Mass. 455, 467-68, 702
N.E.2d 1158 (1998). The Court will rely on those recitations
and will limit its discussion to those facts that are
relevant to Jackson's current claims.
Jackson's trial, the Commonwealth introduced its chief
witness, Olbinsky, by assuring the jury both that he was a
co-defendant, and that it had not given him any "
reward" for testifying:
[A]s I said Stephen Olbinsky's going to come in and
testify. He's a defendant in this case; he's charged
with first degree murder. It's important to note at the
out-front the Commonwealth, that's me of the district
attorney's office, 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.
Trial Tr., vol. 2, 23-24. Jackson's counsel, through
cross-examining Olbinsky at trial, attempted to suggest
Olbinsky should not be trusted, see id. at 88-89, 106-09,
158-60, but noted during his closing argument that no
evidence had been presented showing that the prosecutor or
police had made Olbinsky any promises or bestowed on him any
rewards in exchange for his testimony. See Trial Tr., vol. 5,
36-37. Instead, Jackson's counsel could only ask the jury
to rely on its common sense. See id. at 37. The prosecutor,
in closing, responded to Jackson's attacks on Olbinsky by
arguing that the jury need not worry that Olbinsky was
receiving any sort of special treatment as an inducement to
testify: " Stephen Olbinsky's on trial. 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. The
testimony was I met the guy two weeks ago." Id.
at 50 (emphasis supplied).
never was " on trial" for murder, however: a motion
to dismiss the first-degree murder indictment against him,
unopposed by the Commonwealth, was allowed two weeks after
Jackson's trial had finished. Jackson II, 634 F.Supp.2d
at 150. Throughout his multiple motions for a new trial and
habeas petitions, Jackson's most promising claim has
always been that the Commonwealth rewarded Olbinsky for
testifying against him and that it did not disclose the
evidence of such rewards to Jackson, even though they would
have constituted valuable grist for cross-examination. The
last time he was before this Court, Jackson argued that a
bail agreement between the Commonwealth and Olbinsky,
allowing Olbinsky free on bail despite a pending first-degree
murder charge, was circumstantial evidence of a reward to him
and should have been disclosed to Jackson, but this Court
ruled such claim procedurally defaulted. Id. at
Jackson has what he argues is additional proof of a deal:
during Jackson's trial, Olbinsky was facing prosecution
for multiple counts of possession and delivery of a
controlled substance in Oregon -- and Oregon prosecutors
noted, before Jackson's trial had begun, that "
evidently we're trying to work with prosecutors in Boston
to treat [Olbinsky] nicely, as he's a material witness in
a murder case there." Suppl. Mem. Supp. Mot. Hr'g
Disc., Ex. C, District Att'y File Notes, ECF No. 74;
Commonwealth III, 468 Mass. at
1009. Olbinsky eventually pled guilty to a single count of
possession, and received a sentence of probation.
Commonwealth III, 468 Mass. at 1009, 1010 n.2.
first claim -- that the prosecutor impermissibly bolstered
Olbinsky's credibility by stating that he would be
prosecuted for murder -- has been adjudicated on the merits
by the SJC. See Commonwealth III,
468 Mass. at 1011 (describing previous rejection on the
merits; affirming such rejection). Thus Jackson must show
that its decision " was contrary to, or involved an
unreasonable application of, clearly ...