United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE
case arises out of the 2010 jury trial and conviction of the
Petitioner, Julian Green, in Massachusetts State Superior
Court for second-degree murder. Mr. Green was sentenced to
life in prison and he appealed.
Green's co-defendant, Anthony Russ, was thereafter
acquitted of murder charges involving the same victim in a
separate trial. Mr. Green then filed a motion in the Superior
Court for a new trial while his direct appeal was pending,
arguing that evidence presented during Mr. Russ's trial
constituted newly discovered evidence of a third-party
perpetrator. The Superior Court denied the motion and Mr.
Green timely appealed that decision. The Massachusetts
Appeals Court, after consolidating the two appeals, affirmed
in an unpublished decision and the Supreme Judicial Court
declined further appellate review.
Green now seeks a federal writ of habeas corpus under 28
U.S.C. § 2254 on the basis that the Superior Court's
denial of his motion for a new trial deprived him of due
process and the right to present a defense. Mr. Green also
argues that his trial counsel was constitutionally
ineffective because he failed both to raise certain
evidentiary objections and to offer evidence of a third-party
Factual Background 
The Incident and Investigation
18, 2007, shots were fired from at least two different guns
into a residence located at 36 General Patton Drive in
Hyannis. During the shooting, a .40 caliber bullet struck and
fatally wounded Jacques Sellers, who was present in the
Perry, a woman who was in the house at the time of the
incident gave testimony at trial that she saw “two
young black Americans in jean shorts with hoodies on”
running in the middle of the road immediately after the
shooting; she did not, however, see either man's face.
Another woman, Courtney Doyle, testified that she was sitting
in her parked car across the street at the time of the
incident and that she saw two African American men, one under
six feet tall, and one about five feet, ten inches tall,
wearing a tan sweatshirt and a black sweatshirt respectively.
the investigation, police officers recovered shell casings
from several .38 caliber and .40 caliber bullets and found
several bullet holes in the front and side windows and in the
house's siding. The police also used a canine unit to
track suspects to 23 General Patton Drive, the residence of
Todd Lampley. Mr. Lampley previously had been beaten by
Rodney Ferguson, who was present at 36 General Patton Drive
when the shooting took place.
police were searching the area, they also recovered a glove
and a black hooded sweatshirt, both of which were later
tested for DNA. The tests did not contain enough information
to identify any particular person as the source of the DNA
taken from the glove and excluded Mr. Green as the source of
the DNA taken from the sweatshirt.
The Petitioner's Involvement
investigation into the incident continued, Mr. Green, along
with Anthony Russ, Todd Lampley, and Devarus Hampton, were
identified by law enforcement officers as persons of
interest. The investigators eventually focused on Mr. Green
and Mr. Russ as the possible shooters. Mr. Green's
girlfriend at the time, Jessica Schwenk, testified that on
the day of the shooting, Mr. Green accompanied her to her
grandmother's house in West Dennis. At some point during
the evening, Mr. Green got a phone call and told Ms. Schwenk
that his friend, Mr. Russ, needed him in Hyannis. After
receiving the call, Mr. Green called Jill Parsons and asked
her to bring him “something he had left in her
garage.” The “thing” was a gun, which Ms.
Parsons brought to a CVS in Yarmouth and gave to Mr. Green.
Ms. Parsons testified that Mr. Green later told her he threw
the gun in the ocean.
Mr. Green received the gun from Ms. Parsons, Ms. Schwenk
drove Mr. Green to a hotel in Yarmouth and, following his
instructions, then drove alone to General Patton Drive in
Hyannis. She testified that she saw Mr. Green and Mr. Russ
together on General Patton Drive, and that they instructed
her to wait in the car on the next street over. A short while
later, Mr. Green and Mr. Russ came back to her car and she
drove them to the end of the road, where they ran into the
woods. When he saw her later that night and the following
day, Mr. Green told Ms. Schwenk that ”he shot the
house” because “he was helping a friend.”
Green was eventually arrested and indicted by a grand
jury. During his incarceration, Mr. Green
wrote letters to Ms. Schwenk, who was staying with her
mother, Sandra Schwenk. After Ms. Schwenk was arrested on
different charges, her mother and her mother's friend,
Lisa Steele, read certain of the letters sent by Mr. Green to
Ms. Schwenk. Lisa Steele then contacted a law enforcement
friend, Lt. Det. Robert Melia of the Massachusetts State
Police, and told him that she believed the letters contained
incriminating information about the July 18, 2007 shooting.
Steele eventually gave Det. Melia some of the letters, and
Det. Melia advised her not to tamper with any of the
remaining letters since they might contain material evidence
in the Commonwealth's case against Mr. Green. Shortly
thereafter, Sandra Schwenk gave the remaining letters to Ms.
Schwenk's attorney, who, in turn, gave them to the
police. Law enforcement officials never obtained a warrant
for these letters.
Procedural Background and the Present Petition
State Court Proceedings
January 8, 2008, a Barnstable County grand jury indicted Mr.
Green for murder in the second degree, assault and battery
with a dangerous weapon, discharge of a firearm within 500
feet of a dwelling, unlawful possession of a firearm, and
assault with a dangerous weapon. The prosecution proceeded on
a joint venture theory, reflecting the contention that Mr.
Green could be found guilty even if the bullet he fired was
not the one that ultimately struck and killed the victim.
See Green, 92 Mass.App.Ct. 1102, 2017 WL 3317888 at
*1 n. 3. Following an eight-day jury trial, Mr.
Green was convicted on all five charges and sentenced to life
Green appealed his convictions on July 26, 2010 and, on
February 17, 2012, he filed his motion with the Superior
Court for a new trial under Mass. R. Crim. P. 30(b) on the
basis that, among other things, testimony presented by
Devarus Hampton at the trial of Anthony Russ constituted
newly discovered evidence and that trial counsel was
constitutionally ineffective. The Superior Court denied the
motion for a new trial on November 6, 2014. Mr. Green
appealed that decision, which resulted in the consolidation
of the direct appeal of his conviction and the appeal of the
denial of a new trial.
August 4, 2017, the Appeals Court affirmed the convictions
and the denial of a new trial. It held that Mr. Hampton's
testimony did not constitute newly discovered evidence that
would entitle Mr. Green to a new trial and that trial counsel
was not constitutionally ineffective. Commonwealth v.
Green, 92 Mass.App.Ct. 1102, 2017 WL 3317888 (Mass.App.
Ct. Aug. 4, 2017).
September 1, 2017, Mr. Green filed an Application for Further
Appellate Review (“ALOFAR”) with the SJC. In
particular, the ALOFAR argued that the testimony of Devarus
Hampton should be considered newly-discovered, and that the
Superior Court's denial of Mr. Green's motion for a
new trial on the basis that newly-discovered evidence
regarding a third-party perpetrator violated his federal and
state constitutional right to present a defense. Mr. Green
also argued that trial counsel was otherwise constitutionally
ineffective because of various actions he failed to take
during Mr. Green's original trial, specifically by not
addressing whether Mr. Lampley lied about his alibi; failing
to confront and object to the prosecutor's allegedly
misleading statements during closing arguments, including
those statements about phone calls made to Mr. Green's
cell phone; and, failing to seek the suppression of letters
sent by Mr. Green to Ms. Schwenk.
November 6, 2017, the SJC denied further appellate review.
Commonwealth v. Green, 478 Mass. 1104 (Mass. 2017).
This Federal Habeas Corpus Petition
Green timely filed the present petition for habeas corpus
under 28 U.S.C. § 2254 on November 2,
2018. The petition raises two distinct bases
for relief. First, Mr. Green argues that the state courts
violated his right to due process and to present a defense by
arbitrarily denying his motion for a new trial and excluding
evidence regarding a third-party perpetrator. Second, he
argues that trial counsel was constitutionally ineffective
because he failed to challenge inculpatory evidence that had
no basis in the record and failed to introduce exculpatory
evidence about a third-party perpetrator.
address the merits of each of the two claims in
STANDARD OF REVIEW
28 U.S.C. § 2254, if claims presented by Mr. Green were
“adjudicated on the merits in State court
proceedings” - as they were here - I may grant his
petition for a writ of habeas corpus only if the judgment of
the state court was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,
” or if the decision was “based on an
unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d). The
standard is highly deferential to the judgment of the state
court. As with the exhaustion requirement, this approach is
based on the recognition that “the federal and state
courts are equally bound to guard and protect rights secured
by the Constitution.” Rose v. Lundy, 455 U.S.
507, 518 (1982), and that the federal court should not
proceed in that undertaking until after the state courts have
been afforded the full opportunity to do so themselves.
federal claim is “adjudicated on the merits in State
court proceedings” and becomes entitled to deference
“if there is a decision finally resolving the
parties' claims, with res judicata effect, that is based
on the substance of the claim, rather than on a procedural,
or other, ground.” Yeboah-Sefah v. Ficco, 556
F.3d 53, 66 (1st Cir. 2009). This includes circumstances in
which the state court's judgment is based on questions of
state law, but where “the state and federal issues are
for all practical purposes synonymous and the state standard
is at least as protective of the defendant's
rights” as the federal one. Scott v. Gelb, 810
F.3d 94, 99 (1st Cir. 2016). Moreover, “when a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
contrary.” Johnson v. Williams, 133
S.Ct. 1088, 1094 (2013) (citing Harrington v.
Richter, 562 U.S. 86, 99 (2011)).
state court has, in fact, adjudicated the federal claims, its
decision stands, and the petition for habeas corpus must be
denied, unless the judgment was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States, ” or if the decision was “based on an
unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d).
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 different
result.” Clements v. Clarke, 592 F.3d 45, 56
(1st Cir. 2010) (internal quotations and citations omitted).
It is an unreasonable application of federal law if
“the court either identifies the correct governing
legal rule from the Supreme Court's cases but
unreasonably applies it to the facts” or if it
“unreasonably refuses to extend a principle to a new
context where it should apply.” Id. (internal
quotations and citations omitted). In either circumstance,
“[t]he state court's factual findings are presumed
to be correct unless the petitioner rebuts this presumption
of correctness with clear and convincing evidence.”
Yeboah-Sefah, 556 F.3d at 66.
federal court's review, then, is confined to the state
court's application of federal law. Id. at
65-66. In undertaking that task, the federal habeas court
“should ‘look through' [an] unexplained
[state court] decision to the last related state-court
decision that does provide relevant rationale” and
“presume that the unexplained decision adopted the same
reasoning.” Wilson v. Sellers, 138 S.Ct. 1188,
1192 (2018). It should defer to that reasoning, even if the
habeas court “concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”
Yeboah-Sefah, 556 F.3d at 65.
because the SJC denied appellate review, Green, 478
Mass. 1104, I look to the reasoning of the Appeals Court,
see Green, 92 Mass.App.Ct. 1102, 2017 WL 3317888,
when evaluating the merits of Mr. Green's claim. In doing
so, I recognize that this intermediate appellate tribunal in
turn relied upon the fully reasoned judgment of the Superior
Court, which I also consult, in evaluating Mr. Green's
claims in light of the transcript. See supra note 3.
VIOLATION OF DUE PROCESS
Green argues that both the Appeals Court and the Superior
Court improperly applied the standard set by state law with
respect to his motion for a new trial on the basis of newly
discovered evidence. In particular, he argues, the state
courts improperly held that testimony presented by Devarus
Hampton at the trial of Anthony Russ was not newly discovered
and, in any event, would not have affected the verdict. That
decision, he says, deprived him of the right under Sixth and
Fourteenth Amendments to present a full defense and
therefore, entitles him to a new trial.
preliminary matter, the Commonwealth argues that the Appeals
Court's denial of a new trial on the basis of newly
discovered evidence was a matter for state law and therefore,
cannot be reviewed in a petition for habeas corpus. As a
generalized proposition, the Commonwealth is correct, but
here, that position is beside the point. In non-death-penalty
cases, “[e]rrors based on violations of state law are
not within the reach of federal habeas petitions unless there
is a federal constitutional claim raised.” Kater v.
Maloney, 459 F.3d 56, 61 (1st Cir. 2006) (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
Consistent with this mandate, I do not evaluate the merits of
Mr. Green's underlying claim that the testimony of
Devarus Hampton constituted newly discovered evidence under
Massachusetts law. I consider the question only under
the federal constitution.
will evaluate only the merits of Mr. Green's
federal claim - that the Massachusetts rule
governing newly discovered evidence and its application here
deprived Mr. Green of due process under the federal
Supreme Court has consistently afforded state and federal
lawmakers “broad latitude under the Constitution to
establish rules excluding evidence from criminal
trials.” Holmes v. South Carolina, 547 U.S.
319, 325 (2006). “This latitude, however, has
limits.” Id. While a state, consistent with
its sovereign authority, may regulate the processes of its
courts as it sees fit, it may not establish rules that
deprive criminal defendants of the protections afforded by
the federal constitution. Id. (“This
Court's cases contain several ...