United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS
CORPUS (DOC. NO. 1)
Sorokin United States District Judge
Lally, a prisoner at the Old Colony Correctional Center in
Bridgewater, Massachusetts, has filed a counseled petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, in which he raises a number of challenges to his
conviction and sentence. His claims relate to various
perceived deficiencies by his attorney and related due
process violations. The respondent has opposed the petition,
arguing none of Lally's claims merit relief. For the
reasons that follow, the petition is DENIED.
March 16, 2006, following an eleven-day jury trial in Norfolk
County Superior Court, Lally was convicted of first-degree
murder and received a life sentence. Doc. No. 1 at
Doc. No. 1-1 at 1; accord Commonwealth v. Lally, 46
N.E.3d 41, 45 (Mass. 2016); S.A. at 8. The charges
stemmed from the killing of eighty-four-year-old Marina
Calabro in her home on December 19, 2001. Lally, 46
N.E.3d at 45. The Supreme Judicial Court (“SJC”)
summarized “the facts as the jury could have found
them” at Lally's trial as follows:
The night before the murder, [Lally] slept at the
victim's house with two friends, Jason Weir and the
victim's great-nephew, Anthony Calabro . . . who had
moved in with the victim the summer before the murder.
Anthony was an intended beneficiary of her estate when she
Weir was sixteen . . ., four years younger than [Lally] and
two or three years younger than Anthony. Both Weir and
[Lally] . . . desired to move out of their parents'
homes. During the fall of 2001, [Lally] stayed at the
victim's house approximately five nights per week and
Weir stayed there on the weekends.
[Lally] often commented about how he and Anthony could kill
the victim and get her money. Specifically, [Lally] said,
“Wouldn't it be funny if we pushed her down the
stairs and got her money?”; “We can kill her and
no one would find out”; and that he could “knock
her over the head with a blunt object and then place her at
the bottom of the stairs to make it look like an
accident.” [Lally] referred to the victim [using
On the [afternoon] of the murder, . . . [Lally] obtained the
victim's frying pan and told Weir, “Today's the
day.” Anthony went outside with [Lally's] dog. The
victim . . . scolded [Lally] for taking her things without
asking [and] put the frying pan in the pantry. [Lally]
retrieved it and then used it to hit her on the head. Next,
he hit her on the head with a tea kettle, put his hand over
her mouth and nose to suffocate her, and said, “Just
go. Anthony wants it this way.”
Weir testified that he did not assist the victim because he
was afraid, “freaking out, ” and crying. [Lally]
told him, “We all wanted this house, ” and
“we're in it together” . . . . At
[Lally's] urging, Weir helped move the victim down the
front stairs, which were infrequently used. . . . The trio
got in [Lally's] vehicle and Anthony drove Weir home.
During the ride, [Lally] said that they needed to “bury
the stuff”- referring to the frying pan and tea kettle
used in the attack, and [other items] from the victim's
house-at Meadowbrook Pond in Norton.
Anthony and [Lally] later returned to the victim's home;
just before midnight, a 911 call was placed reporting that an
elderly woman had fallen down. When the police arrived, the
deceased victim was lying at the bottom of the stairs.
Anthony and [Lally] were upstairs in the victim's home.
[Lally] had a welt on his nose, fresh scratch marks on his
right cheek, and a bite mark on his arm. He explained to
police that he received the injuries during a fight with
Anthony the prior evening.
A State police trooper noted suspicious circumstances in
connection with the claim that the deceased had fallen down
the stairs . . . . Conversely, there were conditions
consistent with a fall . . . . He requested a full autopsy.
The medical examiner performed a rape kit to help to
determine the cause of death, which included taking . . . DNA
samples . . . and fingernail clippings and scrapings. . . .
After determining that the majority of the victim's
injuries were consistent with a fall, he ruled the cause of
death as blunt neck trauma and the manner of death as
“fall down stairs.”
[Lally] told Weir, “We fooled everybody, ” and
told another friend that it was a “perfect
crime.” He gave friends varying explanations for the
scratches on his face, telling some that he received the
scratches during a fight with Anthony and others that his dog
In March 2002, Anthony wrote two checks totaling $5, 000 to
[Lally] and two checks totaling $8, 000 to Weir. He also
purchased a truck for [Lally] and . . . equipment for a band
that Weir was in. The three regularly stayed at the
victim's home until shortly before it was sold, in July,
2002. Anthony received approximately $250, 000 in proceeds
from the sale.
In the summer of 2002, Weir was with a friend near
Meadowbrook Pond and saw the frying pan, the tea kettle, [and
other items] out in the open. After telling [Lally] . . . the
two went to Meadowbrook Pond and [Lally] threw the objects in
In October, 2002, Weir's close friend, James Morel,
commented that it was a “coincidence that [the victim]
wound up the same way [Lally] said she was going to.”
Weir then told Morel about the murder. Morel alerted the
Norton police . . . [and] agreed [to wear a wire when he next
met with Weir]. . . . [T]he police followed them for three
hours and recorded the pertinent parts of their conversation.
During the meeting, Weir told Morel that [Lally] had killed
the victim, and although he helped move the body and clean
up, he did not participate in the killing. Weir guided Morel
to Meadowbrook Pond and pointed to the location where the
items were disposed of after the murder. Morel later
accompanied police to the pond and the police recovered
[items including] the top of a tea kettle . . . .
Subsequently, the police drained the pond and found a tea
kettle and a bent frying pan.
Based on this information, Weir and [Lally] were arrested . .
. and charged with murder . . . . Weir agreed to cooperate
with police in exchange for having his charge reduced . . . .
DNA profiles for [Lally], Weir, Anthony, and Morel were
compared to male DNA found on three samples from the
victim's rape kit . . . . In the initial testing, all
four were excluded as contributors to [one sample], which had
been contaminated with male DNA from the State police crime
laboratory. Weir, Anthony, and Morel were excluded as
contributors to the fingernail scrapings and the fingernail
clippings, but [Lally] could not be excluded from either.
[Lally] testified that Weir killed the victim and that he
received the injuries observed by police the night of the
murder when he attempted to intervene on the victim's
behalf. His stepsister testified to examples of Weir's
behavior that made her nervous and his stepfather testified
to numerous arguments between Weir and [Lally].
Id. at 45-48 (footnotes omitted).
elaborated on the DNA evidence offered at trial:
Jeffrey Hickey, a former DNA analyst with Cellmark
Diagnostics . . . analyzed the DNA using two methods. First,
he performed PCR testing . . . . Hickey also performed Y-STR
testing, which separates male DNA . . . when the analyst is
unable to create a primary profile from the mixture of male
and female DNA.
From the fingernail scrapings, PCR testing showed that the
sample was a mix of male and female DNA, the primary DNA
profile was from the victim, a “few secondary
types” of DNA were located, and [Lally] “could
not be excluded as a potential source” of those
secondary profiles. Hickey did not provide statistical
information to demonstrate the relevance of this nonexclusion
PCR evidence, explaining that Cellmark does not provide
statistics on secondary profiles.
From the fingernail clippings, PCR testing was inconclusive .
. . . Once Hickey extracted only the male DNA, however, he
was able to produce a Y-STR profile containing twelve regions
of DNA. He testified that the male profile created from Y-STR
testing “came back to match [Lally] at all of those
regions that we tested.” Hickey provided context for
this result through statistical analysis, wherein he compared
the results of the Y-STR testing to a database of known DNA
profiles and determined that the profile occurred in one out
of 1, 311 Caucasian males, and zero out of 1, 108
African-American males, and zero out of 894 Hispanic males.
He explained that Y-STR statistics are “quite
different” from PCR results-where you can see numbers
in the “billions [or] trillions.” In PCR testing,
“a match across all of those regions” would allow
an expert to opine with a reasonable degree of scientific
certainty that a DNA profile belongs to a specific person.
Conversely, with Y-STR testing, DNA results cannot
discriminate among members of the same paternal line and the
statistical likelihood is never any greater than the database
available for comparison.
Hickey also testified to contamination of [another sample
from the victim's rape kit test by a male employee at the
state crime laboratory]. . . .
Trial counsel's cross-examination of Hickey focused on
the contamination and Hickey's testimony at trial that
[Lally] “matches” the Y-STR profile, noting that
Hickey stated in his report that [Lally] could not “be
excluded” as a source of the DNA in the fingernail
scrapings, not that there was a match. . . .
The prosecutor commented on the DNA evidence in her opening
statement and closing argument. In her opening statement, she
told the jury that the evidence would prove that [Lally] was
the “major contributor” to the right fingernail
clippings . . . . In her closing, she argued that . . . the
reference to nonexclusion was a matter of “semantics,
” because Cellmark does not “use the term
‘match'” for Y-STR testing, but “if you
look at it, you'll see all the numbers from [Lally]
correspond to the fingernail clippings.”
Id. at 48-50.
timely direct appeal was stayed by the SJC pending resolution
of a June 2010 motion for a new trial. Doc. No. 1-1 at 1;
S.A. at 9, 15-16. The trial court held an evidentiary hearing
featuring testimony by trial counsel and two DNA experts, as
well as oral argument on Lally's claims. Lally,
46 N.E.3d at 50; Doc. No. 1-1 at 2. The SJC summarized the
post-trial testimony with respect to DNA evidence this way:
Dr. Michael J. Bourke, a forensic scientist retained in 2005
by trial counsel and in 2009 by postconviction counsel . . .
[testified] that [he] alerted trial counsel in a pretrial
memorandum to the lack of statistics [supporting the PCR
evidence from the fingernail scrapings], advised that
“the correct statistic to perform on mixed samples is
the combined probability of inclusion, ” and questioned
the admissibility of such evidence without statistics. The
memorandum noted that the statistical information was
important because the “small to limited number of loci
. . ., and the fact that these loci are mixtures, will result
in very modest random match probabilities.” [Former
Cellmark laboratory director Dr. Robin] Cotton likewise
testified that testing only a “few” loci could
provide probabilities that are “very much
smaller” than the large numbers calculated using a full
profile. She also testified that statistical information
could have been provided at the time of the 2006 trial if
requested; however, the information was not routinely
provided when the applicable report was written.
. . . The [Y-STR] results were presented [at trial] using . .
. “the counting method, ” which describes the
frequency in which a DNA match is found in a given database.
A “confidence interval” adjusts that result to
account for sampling errors and identical profiles being
passed through a paternal line, and thus increases the
likelihood that the same profile could be found in a
population. . . . Bourke testified that the counting method
results “would be misleading without the confidence
interval correction.” He did not advise counsel about
Y-STR deficiencies, but testified that he would have had he
been asked. Cotton testified that a confidence interval could
have been calculated at the time of trial, but Y-STR testing
was in its infancy at the time of the 2005 report and
Cellmark's policy did not provide for such a calculation.
Lally, 46 N.E.3d at 50-51.
trial court denied Lally's motion. See generally
Doc. No. 1-1 at 1-36. The SJC consolidated Lally's direct
appeal with his appeal of the denial of his motion for a new
trial, and affirmed on March 3, 2016 in a published decision.
See generally Lally, 46 N.E.3d at 45-60.
timely federal habeas petition, Lally raises seven claims:
1) Trial counsel was ineffective, and Lally was denied due
process, due to various errors related to the use of DNA