United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.
8, 2019 Petitioner Earl Fulgiam seeks habeas corpus relief
from 2013 Massachusetts state court convictions for first
degree murder, carrying a firearm without a license, carrying
ammunition without a license, and possession of a large
capacity firearm without a license. He is serving a life
sentence without parole.
Fulgiam filed this federal habeas corpus petition on October
7, 2018. He argues that his right to confrontation under the
Sixth Amendment to the United States Constitution was
violated in two ways: (1) by admission of a ten-print
fingerprint card containing his name, and (2) by certain
testimony received from a fingerprint expert. The Respondent
has moved for judgment on the pleadings.
evaluating habeas corpus petitions made by state prisoners
pursuant to 28 U.S.C. § 2254, findings of fact by the
state court “shall be presumed to be correct” and
the petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); Rashad v.
Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (explaining that
deference is accorded to findings of both state trial and
state appellate courts). The parties do not appear to contest
the factual findings reported by the Supreme Judicial Court
of Massachusetts, see generally Commonwealth v.
Fulgiam, 73 N.E.3d 798 (Mass. 2017). I rely upon the
state court's pertinent findings here.
25, 2011, the victims, Billie Marie Kee and Kevin Thomas,
Jr., were robbed and killed in their Boston apartment. Ms.
Kee was found lying down on the floor. She had suffered four
gunshot wounds and multiple stab wounds that damaged her
torso, lungs, ribs, and spine. Mr. Thomas was found dead in
the front bedroom with his legs bound with a black cord. He
had suffered seven gunshot wounds and four stabs wounds that
damaged his torso and neck.
police found a curling iron with its cord cut near Ms.
Kee's body. The curling iron cord matched the wire that
was used to bind Mr. Thomas' legs. The police also found
a loaded nine-millimeter semiautomatic pistol with a
magazine. All bullets, bullet fragments, and shell casings
recovered from the scene had been fired from the
nine-millimeter semiautomatic pistol. The police later
individualized a latent print found on the curling iron
to co-defendant Michael T. Corbin, and four latent prints
from the nine-millimeter semiautomatic pistol to Mr. Fulgiam.
Fulgiam and Mr. Corbin were tried by a jury in the Suffolk
County Superior Court from May 1 to May 20, 2013. At trial,
Kristen Tolan, a fingerprint examiner from the Boston Police
Department, testified that seven latent prints were recovered
from the nine-millimeter semiautomatic pistol. She further
testified that after she entered the first latent print into
the Automated Fingerprint Identification System (“AFIS
system”), the system generated a ten-print
for Earl Fulgiam. The ten-print card contained Mr.
Fulgiam's name, date of birth, sex, race, place of birth,
height, weight, eye color, and hair color. It did not,
however, include the date, the name of an arresting officer,
the signature of the officer taking the prints, the signature
of the person being fingerprinted, or the name of the
Department. The card did contain an arrest date of “07
18 2011, ” seven days before the date of the murder.
Ms. Tolan testified that using the ACE-V methodology
(analysis, comparison, evaluation, and verification), she was
able to individualize four latent prints from the
semiautomatic pistol to Mr. Fulgiam.
Fulgiam sought to exclude the ten-print card and objected at
trial, stating that it was “hearsay … being
offered specifically for a testimonial purpose.” The
trial court denied the motion because it was “of the
view that the AFIS ten-print fingerprint card [was] not
addition to his objection to the ten-print card, Mr. Fulgiam
also objected when the prosecutor asked Ms. Tolan,
“Without getting into the name, was your work with
respect to [the four individualized prints] verified after
you came to your conclusions?” The trial judge
sustained the objection as to the word “verified,
” stating, however, that the prosecutor could
“get into the name, ” but couldn't elicit
“anything other than what he might have done when he
examined them.” The prosecutor then asked Ms. Tolan if
her findings had been “reviewed” by Ioan Truta, a
criminalist in the Latent Print Unit, to which she replied
“yes.” Although Mr. Fulgiam again objected, the
trial court overruled the objection.
20, 2013, the jury convicted Mr. Fulgiam and Mr. Corbin
guilty as joint venturers in first degree murder. The jury
also convicted Mr. Fulgiam and Mr. Corbin of carrying a
firearm without a license, possession of a large capacity
firearm without a license, and carrying ammunition without a
Fulgiam and Mr. Corbin appealed to the SJC. As pertinent
here, Mr. Fulgiam argued to the SJC that the trial court
erred in the admission of (1) the ten-print card without
proper authentication or reliability; and (2) expert
testimony related to the fingerprint analysis. On May 5,
2017, the SJC upheld the convictions. Mr. Fulgiam
subsequently filed a petition for rehearing. On June 28,
2017, the SJC denied the petition but amended its decision.
Mr. Fulgiam then sought - but on October 10, 2017, was denied
- a writ of certiorari from the Supreme Court of the United
States. On October 7, 2018, Mr. Fulgiam filed this petition
for a writ of habeas corpus from this Court pursuant to 28
U.S.C. § 2254, on the ...