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Upshaw v. Murphy

United States District Court, D. Massachusetts

July 17, 2019

KEVIN UPSHAW, Petitioner,
JOSEPH MURPHY, Respondent.



         On June 26, 2013, Petitioner Kevin Upshaw (“Petitioner” or “Upshaw”) was convicted of three counts of uttering a false document (Counts 3, 4, and 7), perjury by false written statement (Count 5), and attempted larceny (Count 8). [Supplemental Answer (“S.A.”) at 104-11]. The charges against Upshaw resulted from his attempt to lay claim to certain trust assets that had gone unclaimed for more than twenty years by presenting a forged will to the Unclaimed Property Division of the Massachusetts State Treasurer's Office. Upshaw was sentenced to four to five years on the perjury conviction, a concurrent term of two to three years for the uttering convictions, and a concurrent term of two and a half years on the attempted larceny conviction. [S.A. at 15]. Before the Court is Upshaw's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [ECF No. 1]. For the reasons explained herein, Upshaw's petition for a writ of habeas corpus is DENIED.


         In habeas cases, state courts' “factual findings are entitled to a presumption of correctness that can be rebutted only by clear and convincing evidence to the contrary.” Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (quoting Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002)). The Massachusetts Appeals Court (“Appeals Court”) provided an account of the facts, which is reproduced below. See Commonwealth v. Upshaw, 55 N.E. 3d 433 (Table), 2016 WL 4087932, at *1-4 (Mass. App. Ct. Aug. 2, 2016).

Dr. Rose Jannini, of Winthrop, died on April 16, 1986; the executor of her estate probated her will in the Probate and Family Court in 1988, valuing Jannini's estate at roughly $1.24 million.[1], [2] The executor did not take any further action, and the bulk of Jannini's estate eventually was turned over to the Unclaimed Property Division of the State Treasurer's Office located in One Ashburton Place in Boston (Treasurer's Office).
On March 15, 2010, [Upshaw] went to the Treasurer's Office to make a claim on property from Jannini's thirty year old estate. He asserted that he had been sent from the Probate and Family Court, although he did not provide any documentation from the court at that time. [Upshaw] did present to the paralegal stationed at the counter of the public reception area, a document he alleged to be Jannini's 1984 last will and trust. According to that document, the trustee at the time of Jannini's death was Ruth Hamlin Greer; however, because Greer was deceased, [Upshaw] had become the sole trustee and beneficiary of the remainder of Jannini's estate. The paralegal asked [Upshaw] how he was related to Jannini and the response was “very vague. He said that he was nominated. Nothing very specific.” She thought that [Upshaw's] presentation “didn't make much sense.” In addition, [Upshaw] appeared agitated and complained about his parking fees, encouraging the paralegal to “speed ... up ... the process [and] give him claim forms.” As a result, the paralegal consulted Thomas McAnespie, Unclaimed Property Administrator for the Commonwealth. McAnespie instructed [Upshaw] to return to the Probate Court to obtain appropriate documentation.
On April 6, 2010, [Upshaw] petitioned the Probate Court to become successor trustee; on June 29, 2010, a judge of the Probate Court issued a decree making the appointment. In July, 2010, [Upshaw] returned to the Treasurer's Office with that decree. Although he again asked for “claim forms, ” he was not provided with them. McAnespie subsequently received a letter from [Upshaw], dated September 24, 2010, with a copy that purported to be the 1984 last will and testamentary trust of the testator Rose Jannini, and accompanying list of trust assets. The letter requested that the Treasurer compare the documents to determine that the unclaimed property held was, indeed, the same as the listed assets from Jannini's estate. [Upshaw] also stated he would schedule a meeting at McAnespie's office once the assets had been confirmed, and after he had hired an attorney to assist with the reclaiming process. On October 28, 2010, [Upshaw] was arrested on a warrant in the lobby of One Ashburton Place, presumably when he was on his way to meet with McAnespie.
At trial, State police Officer David Crowther testified that he executed a search warrant at [Upshaw's] residence in Millbury; officers seized from a large plastic container located in the basement several notary seals engraved with various names and states of issue. One seal, in particular, was engraved with the name Marlene Siegel, the person who purportedly had notarized the 1984 will and trust document [Upshaw] had presented to the Probate Court in connection with his successor trustee petition; he also presented the same document later in the Treasurer's Office. Crowther testified that, as part of his investigation, he had obtained from the State of Connecticut a copy of Siegel's application for appointment as notary public; it was dated June, 1988, four years after she appeared to have notarized the 1984 will.[3]

Id. at *1-2.

         On November 18, 2010, a Suffolk County grand jury indicted Petitioner on three counts of forgery, three counts of uttering a false document, one count of perjury, and one count of attempted larceny. [S.A. at 104-11]. In 2013, the Commonwealth filed a motion in limine to admit certain documentary evidence, including a will dated April 16, 1986 with Dr. Jannini's signature (“the 1986 Will”) that had been probated in the Suffolk County Probate Court in 1988. [Id. at 156-59]. Petitioner filed a competing motion in limine to exclude the 1986 Will pursuant to the Confrontation Clause. [Id. at 160-62]. During a pre-trial hearing, the Commonwealth and Upshaw agreed to redact from the 1986 Will any indication that it had been accepted by the Probate Court as genuine and to stipulate that the 1986 Will was entered at the Probate Court. See [S.A. 167-71]. At that hearing, Upshaw preserved an objection to the 1986 Will being admitted because the testator was unavailable to be cross examined. [ECF No. 18 at 20-21; ECF No. 25 at 1- 2]. At trial, Petitioner did not object to the admission of the redacted will. Upshaw, 2016 WL 4087932, at *2.

         Petitioner was convicted of the uttering, perjury, and attempted larceny charges on June 26, 2013. [S.A. at 214-18]. On August 2, 2016, the Appeals Court affirmed the convictions. Upshaw, 2016 WL 4087932, at *4. The Supreme Judicial Court denied further appellate review on November 4, 2016. [S.A. at 21].

         On December 1, 2016, Petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. [ECF No. 1]. Upshaw claims that the trial court violated his right to confront witnesses against him by failing to obtain his consent or to advise him of the consequences of the stipulation about the admissibility of the 1986 Will. [Id. at 5, 7]. On September 13, 2017, Respondent filed a memorandum of law opposing the habeas petition. [ECF No. 31].


         A federal district court's review of a state criminal conviction is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA permits a federal court to grant habeas relief after a final state ...

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