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Lally v. Murphy

United States District Court, D. Massachusetts

July 19, 2018

THOMAS LALLY, Petitioner,
v.
JOSEPH MURPHY, Respondent.

          MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1)

          Leo T. Sorokin United States District Judge

         Thomas 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.

         I. BACKGROUND

         On 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 1-2;[1] Doc. No. 1-1 at 1; accord Commonwealth v. Lally, 46 N.E.3d 41, 45 (Mass. 2016); S.A. at 8.[2] 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 died.
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 obscene terms].
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 scratched him.
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 the water.
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).

         The SJC 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.

         Lally's 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.

         The 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.

         In his 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 ...

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