FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
L. Sheketoff on brief for appellant.
E. Bocian, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief for
Lynch, Stahl, and Lipez, Circuit Judges.
Hardy was convicted of first degree murder by a Massachusetts
jury in 1995. Hardy, who is currently serving a life sentence
in a state correctional facility, appeals the district
court's denial of his petition for a writ of habeas
corpus. After careful review, we conclude that the challenged
state court rulings were neither contrary to nor an
unreasonable application of clearly established Supreme Court
precedent, and we affirm. See 28 U.S.C. §
Hardy does not challenge the state's factfinding, we take
the following facts from the Massachusetts Supreme Judicial
Court's (SJC) decision in Commonwealth v. Hardy
(Hardy I), 727 N.E.2d 836 (Mass. 2000), supplemented
by a few undisputed facts of record. See 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
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.").
spent the afternoon of April 27, 1994, in Somerville,
Massachusetts playing basketball and drinking alcohol with a
group that included Christopher Rogovich, Gerald Sullivan,
Richard Allison, and Thomas Moran, the victim. See Hardy
I, 727 N.E.2d at 838. At some point, Hardy and Sullivan
left to buy marijuana laced with phencyclidine, or PCP, from
a dealer. Id. at 838-39.
and Moran smoked the drug twice later that afternoon and
evening. Id. at 839. Moran, saying that the PCP was
weak, complained throughout the evening that it was
"fake." Id. Moran repeatedly called
Sullivan and Hardy "chumps" and "idiots,"
because they "got beat" by the dealer. Id.
Visibly upset by Moran's comments, Hardy again left,
returning with a gun obtained from Steven Murphy, which Hardy
hid in his pants. Id.
group eventually drove in Hardy's car to a bar.
Id. They later assembled at a Dunkin' Donuts
parking lot, where Hardy and Moran exchanged insults. See
id. at 839-40.
the group drove away from the Dunkin' Donuts, but they
did not get far before Hardy pulled over so that he,
Sullivan, and Allison could talk privately outside.
Id. When the three men returned to the car, where
Moran had remained, Hardy announced, "We got to go meet
the dealer." Id. Hardy drove them to a Medford
park, where everyone got out and Hardy directed them where to
point, Sullivan had gotten Hardy's gun, and at trial,
Rogovich testified that, in the park, Sullivan pointed the
gun at Moran's head. Id. Hardy then grabbed the
gun and shot Moran. Id. Moran said, "Hardy shot
me in the mouth," and Hardy replied, "Now
you'll shut your fuckin' mouth." Id.
Rogovich then watched Sullivan, Allison, and Hardy stab
was found in the park at 5:30 the next morning with a gunshot
wound to the face and seventy-nine stab wounds all over his
body. Id. at 838. That day, Murphy, who had given
the gun to Hardy, said, "That was a pretty sick thing
that you did." Id. at 839. Hardy responded,
"Did you hear how many times we got him? Eighty
was charged with first degree murder. Id. at 838. At
trial, the state's two main witnesses were Rogovich, who
was granted immunity to testify, and Murphy. Id. at
testified at trial and presented an alibi defense, claiming
that he had gone to the Dunkin' Donuts with Sullivan to
buy drugs and then to his grandfather's house.
Id. at 840. Hardy also denied that Moran had
expressed a problem with the PCP and denied having gotten a
gun. Id. Finally, Hardy alleged inadequacies in the
police investigation into other possible suspects, as part of
a theory that a third party had committed the murder. See
id. at 843 & n.5.
the jury voted to convict, the judge sentenced Hardy to the
mandated sentence of life in prison without the possibility
of parole. Hardy appealed, and the SJC upheld the conviction
and the denial of his motion for a new trial in 2000, in
Hardy I. Id. at 838.
then filed a petition for habeas corpus in federal court that
asserted nine claims of federal constitutional error. The
district court determined that six of those nine claims were
unexhausted, and stayed the petition for Hardy to exhaust the
filed a second motion for a new trial, which was denied in
state Superior Court. That denial was affirmed by the SJC.
See Commonwealth v. Hardy (Hardy II), 984
N.E.2d 727, 730 (Mass. 2013).
Hardy revived his habeas petition in federal court, two of
his nine claims were dismissed as unexhausted. Adopting the
magistrate judge's report and recommendation, the
district court denied the petition on the seven remaining
claims. See Hardy v. Maloney, No. 01-CV-10794-PBS,
2018 WL 1257758, at *1 (D. Mass. Mar. 8, 2018).
court's legal determination cannot be overturned on
federal habeas review unless it is "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court." 28
U.S.C. § ...