United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
William G. Young, Judge.
Kenneth Faulk (“Faulk”) is a state prisoner who
was convicted of murder in the second degree and carrying a
firearm without a license in the Massachusetts Superior Court
sitting in and for the County of Plymouth on November 18,
2010. On September 26, 2016, Faulk filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging these convictions. Respondent Sean Medeiros
(“Medeiros”) opposes the petition.
reasons discussed below, this Court DENIES Faulk's habeas
was indicted for murder in the first degree and for carrying
a firearm without a license. Pet'r's Mem. Supp. Pet.
Habeas Corpus Relief (“Pet'r's Mem.”) 2,
ECF No. 30. On November 18, 2010, after a jury trial in the
Massachusetts Superior Court, the jury found the petitioner
guilty of the lesser included offense of murder in the second
degree and guilty of the firearms charge. Id.
Massachusetts Appeals Court summarized the evidence
introduced at Faulk's trial as follows:
As shown by videotape surveillance footage obtained from a
camera system installed at the scene, on April 30, 2007,
[Faulk] entered 33 Dover Street, Brockton, with the victim,
Derrick Wilson, right behind him. [Faulk] stopped, turned,
and appeared to speak to the victim. The victim then followed
the defendant up a set of stairs. Two minutes later, the
victim slid feet first down the stairs, and lay at the foot
of the stairs, struggling. Within seconds, [Faulk] came down
the stairs, stepped over the victim, and left the building. A
few minutes later, [Faulk] returned with a female companion,
and kicked the victim's foot and his head.
According to the medical examiner, the victim died from a
gunshot wound to the chest. It appears from the video footage
that no one entered or left through the second-floor door at
the time of the incident. There was evidence that the third
floor of the building was locked. When [Faulk] initially
spoke with police, he told them that he had not entered the
building with the victim. After being shown still images from
the video, he acknowledged his presence but claimed not to
know if he had heard gunshots, or if there had been any kind
of fight or struggle on the stairs. He said that he kicked
the victim to wake him up.
A cigarette butt at the second-floor landing was linked to
[Faulk] by deoxyribonucleic acid (DNA) evidence, and a
projectile found in the wall at the top of the second-floor
landing was linked to the victim by DNA evidence. However, no
weapon or shell casings were recovered. Strands of
“Mardis Gras” beads worn by the victim were
broken, and beads were found scattered -- including one at
the top of the landing -- suggesting a struggle.
Commonwealth v. Faulk, No. 11-P-1663, 2016 WL
767584, at *1 (Mass. App. Ct. Feb. 29, 2016).
trial judge sentenced Faulk to life on the murder charge and
four to five years on the firearm charge to run concurrent
with the sentence imposed on the murder charge.
Pet'r's Mem. 2. The petitioner timely appealed on
November 23, 2010. Id. Faulk filed a motion for a
new trial, which was denied without a hearing on June 6,
2014. Id. On June 13, 2014, Faulk timely appealed
the order denying his motion for a new trial and the Appeals
Court affirmed the judgment of his convictions and the denial
of his motion for a new trial. Id. In March 2016,
Faulk filed an application for leave to obtain further
appellate review (“ALOFAR”) in the Massachusetts
Supreme Judicial Court. Pet'r's Mem. 3. The Supreme
Judicial Court denied Faulk's ALOFAR on March 31, 2016.
September 26, 2016, Faulk filed a petition for a writ of
habeas corpus in this Court pursuant to 28 U.S.C. §
2254; Pet. Writ Habeas Corpus (“Pet'r's
Pet.”), ECF No. 1. On May 1, 2017, Faulk moved for
leave to amend the petition, seeking to add two more claims,
and Medeiros opposed the motion. Pet'r's Mot. Am.,
ECF No. 27; Resp't's Opp'n Mot. Am., ECF No. 28.
On May 15, 2017, this Court denied Faulk's motion to
amend, explaining that allowing the motion would render the
petition a mixed petition subject to dismissal. Electronic
Order, ECF No. 29. On May 22, 2017, Faulk filed a memorandum
of law in support of his petition, Pet'r's Mem.,
which Medeiros opposed, Resp't's Mem. Opp'n Pet.
Habeas Corpus (“Resp't's Opp'n”), ECF
STANDARD OF REVIEW
standard of review of habeas corpus petitions is set forth in
28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
Harrington v. Richter, 562 U.S. 86, 97 (2011). Under
this standard, a federal court may not grant a writ of habeas
corpus unless the underlying state court adjudication
resulted in a decision that either “(1) ‘was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,' or (2) ‘was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.'”
Brown v. Ruane, 630 F.3d 62, 66-67 (1st Cir. 2011)
(quoting 28 U.S.C. § 2254(d)(1)-(2)).
A state court['s] decision is “contrary to”
clearly established federal law . . . if it
“contradicts the governing law set forth in the Supreme
Court's cases or confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from its
Id. at 67 (quoting John v. Russo, 561 F.3d
88, 96 (1st Cir. 2009)). A state court's decision
involves an unreasonable application of clearly established
federal law “if the state court ‘identifies the
correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case.'”
Id. (quoting Williams v. Taylor, 529 U.S.
362, 413 (2000)) (alteration in original).
28 U.S.C. § 2254(e)(1), “‘a determination of
a factual issue made by a State court shall be presumed to be
correct.' The petitioner bears the burden of overcoming
that presumption by providing ‘clear and convincing
evidence.'” Teti v. Bender, 507 F.3d 50,
57 (1st Cir. 2007) (quoting 28 U.S.C. § 2254(e)(1)).
“The ‘presumption of correctness is equally
applicable when a state appellate court, as opposed to a