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Fulgiam v. Kenneway

United States District Court, D. Massachusetts

March 8, 2019

EARL FULGIAM, Petitioner,
v.
STEVEN KENNEWAY, Respondent.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.

         March 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.

         Mr. 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.

         I. BACKGROUND

         A. Factual Background

         When 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.

         On July 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.

         The 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[1] 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.

         B. Procedural History

         Mr. 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 card[2] 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.

         Mr. 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 testimonial.”

         In 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.

         On May 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 license.

         Mr. 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 ...


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