Jackson v. Marshall , 864 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2519
DAVID JACKSON,
Petitioner, Appellant,
v.
JOHN MARSHALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Alan J. Black for appellant.
Susanne G. Reardon, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Maura Healey, Attorney General
of Massachusetts, was on brief, for appellee.
July 19, 2017
KAYATTA, Circuit Judge. David Jackson was convicted of
first degree murder in Massachusetts Superior Court. The
Massachusetts Supreme Judicial Court ("SJC") affirmed his
conviction and rejected his collateral challenges. In turn, the
United States District Court for the District of Massachusetts
denied his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Jackson now appeals, reasserting that his trial was
unconstitutionally unfair because the Commonwealth failed to turn
over what he views as undisputable evidence that the Commonwealth's
chief witness was given inducements in exchange for favorable
testimony and because the Commonwealth suborned the witness's
perjurious testimony to the contrary. For the following reasons,
we find that Jackson has failed to meet the burden imposed on him
under § 2254. We therefore affirm.
I. Background1
Jackson's conviction arose out of a robbery and fatal
shooting that occurred in April 1990 in an apartment complex in
Boston. No physical evidence tied Jackson to the crime. But three
months after the crime was perpetrated, the Commonwealth's chief
witness, Steven Olbinsky, gave two statements describing the event
to the police. In those statements, and then almost three years
1
We present an overview of the facts taken from the background
summary given by the SJC. See Scoggins v. Hall, 765 F.3d 53, 54
(1st Cir. 2014).
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later at trial, he reported that on the night of the crime, a man
named Mark James asked him where to go to purchase drugs; that
Olbinsky led James, Jackson, and another unidentified man to the
apartment complex; that Jackson drew a shotgun from his vehicle;
that Jackson then asked which of the units in the building was the
drug dealer's residence; that Olbinsky told Jackson the wrong unit
because Olbinsky was frightened; and that Olbinsky departed the
scene as Jackson, wearing a trench coat and wielding the weapon,
approached the building with James.2 No one else specifically
placed Jackson at the scene of the crime. Other witnesses, though,
testified that two men, one in a mask and long jacket and carrying
a shotgun, broke into the unit to which Olbinsky had directed
Jackson, and were redirected by occupants of that unit to the unit
of a known drug dealer. See Commonwealth v. Jackson (Jackson I),
702 N.E.2d 1158, 1160–61 (Mass. 1998). The two men then broke
into the latter unit, where one of them fired the shotgun, killing
an inhabitant. Another witness testified that later that evening,
Jackson and James arrived at another apartment. Jackson was
described as wearing a long jacket and carrying a shotgun, jewelry,
2 Jackson does not dispute this description of Olbinsky's
trial testimony. Nor does he challenge the SJC's conclusion that
"Olbinsky had given consistent accounts of the incident since July,
1990," the date of his first statement to the police. Commonwealth
v. Jackson, 702 N.E.2d 1158, 1161 (Mass. 1998). Indeed, in his
reply brief, Jackson recognizes that Olbinsky's "story never
changed."
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money, and cocaine. The witness testified that Jackson disclosed
that he and James had committed a robbery, and that the shotgun
discharged accidentally as they were leaving. Id. at 1161.
At trial, the prosecutor stated that "the
Commonwealth . . . is offering nothing to Mr. Olbinsky for his
testimony. There's been no rewards, there's been no promises,
there's been no inducements, no offers for his testimony. If there
were, you'd know about it." Olbinsky also testified that he did
not receive any inducements for his testimony. See id. In closing
argument, in response to Jackson's counsel's suggestion that it
was unlikely that Olbinsky was testifying without some kind of
quid pro quo, the prosecutor countered by saying that Olbinsky,
who had in fact been indicted with Jackson on one count of first
degree murder, was "on trial" for the same offense. The prosecutor
told the jury, "I've got the case and if he got a deal, you would
have known about it. Let me repeat that. You would have known
about it."
As Jackson knew, however, Olbinsky was not literally "on
trial."3 In fact, his case never left the starting gate. Instead,
after Olbinsky's attorney filed a motion to dismiss the indictment
for lack of sufficient evidence, the trial court continued his
case seven separate times. The Commonwealth never opposed
3Jackson makes no contention that the prosecutor's
misstatement entitles him to habeas relief.
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Olbinsky's motion to dismiss the indictment, and two weeks after
Jackson's trial concluded, the motion was granted.
Convicted on April 16, 1993, Jackson was sentenced to
life in prison. He took a direct appeal to the SJC and moved for
a new trial pursuant to Rule 30 of the Massachusetts Rules of
Criminal Procedure. Among other things, he argued that "the
prosecutor impermissibly bolstered the credibility" of Olbinsky
"by misrepresenting to the jury that no deal had been made in
exchange for Olbinsky's testimony." Id. This claim was "actually
two separate claims," first, "that the prosecutor stated that no
inducement had been offered for Olbinsky's testimony and that this
was false," and second, "that the prosecutor concealed the fact
that the Commonwealth did not intend to prosecute Olbinsky." Id.
As to the first claim, the SJC found there was insufficient
evidence to find the prosecutor's statement false. Id. As to the
second, the SJC found that "even if true, [concealing that the
Commonwealth did not intend to prosecute Olbinsky] would not have
served to bolster [his] credibility." Id. Finding none of
Jackson's arguments convincing, the SJC affirmed his conviction
and sentence and declined to grant collateral relief. Id. at 1166–
67.
Jackson unsuccessfully pursued a petition for a writ of
habeas corpus in the United States District Court for the District
of Massachusetts in 1999. In 2002, he filed a second Rule 30
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motion in state court. In this motion, he claimed to have
discovered new evidence that Olbinsky testified subject to
inducements. The new evidence consisted of a bail agreement
between the Commonwealth and Olbinsky, which Jackson said he did
not know existed until he made a public records request in July
2002. The agreement, entered on the public docket in Olbinsky's
case almost a year before Jackson was tried, provided that Olbinsky
would be subject to electronic monitoring and a curfew while out
on bail, which Olbinsky had posted three weeks prior, once the
trial judge in his case reduced his bail from $25,000 to $5000
cash.
Jackson's motion was denied, and a single justice of the
SJC denied leave to appeal that denial on October 23, 2003. See
Mass. Gen. Laws ch. 278, § 33E. In the denial, the gatekeeper
justice noted that the bail agreement to which Jackson referred
was readily available long before his trial; the agreement merely
provided for electronic monitoring; it did not "shed[] light on
what convinced the judge to reduce Olbinsky's bail" or "what
position the prosecutor took on that issue at that time"; and it
contained "nothing to suggest that [Olbinsky] had anything to fear
in connection with the terms of his bail that would have caused
him to testify in a manner to please the prosecutor." In any
event, said the gatekeeper justice, "defendant's suggestion that
better impeachment of Olbinsky would have accomplished something
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meaningful for the defense [was] unpersuasive" because Olbinsky's
trial testimony matched statements he gave to police shortly after
the crime was committed and long before his arrest, and because it
was corroborated by other testimonial evidence.
In May 2004, Jackson moved pursuant to Federal Rule of
Civil Procedure 60 for relief from the judgment denying his habeas
petition. In this motion, Jackson pointed to the bail agreement
as evidence that Olbinsky was incentivized to testify falsely
against him. Jackson also claimed that "documents from a criminal
trial of Mr. Olbinsky in Oregon suggest[ed] that Mr. Olbinsky's
arrest in Massachusetts in connection with [Jackson's] state court
trial was intended to lead to an implicit agreement between Mr.
Olbinsky and the prosecutor." The district court found that
Jackson "potentially [had] a meritorious claim and that the
government's alleged hiding of this evidence, if true, would
constitute extraordinary circumstances beyond the petitioner's
control." Jackson was therefore granted leave under Rule 60(b)(6)
to move for an evidentiary hearing.
In his subsequent motion for an evidentiary hearing,
Jackson explained the Oregon evidence. Apparently, Olbinsky
absconded to Oregon a few months after the shooting. On March 13,
1992, he was indicted with Jackson on a charge of first degree
murder. Oregon police arrested Olbinsky pursuant to the
Massachusetts warrant, and he was extradited to Massachusetts on
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April 16, 1992. Searching his home in an unrelated drug
investigation, Oregon police found a quarter-pound of
methamphetamine, and Olbinsky was indicted on drug charges in
Oregon on June 23, 1992. An Oregon warrant for his arrest issued
and he was charged with two counts of manufacturing or delivering
methamphetamine (a Class B felony under Oregon law) and one count
of possession of methamphetamine (a Class C felony). Olbinsky
entered into the bail agreement with Massachusetts prosecutors
that same day, and his attorney filed the motion to dismiss his
murder indictment for lack of evidence.
Three days later, at the urging of an assistant district
attorney in Massachusetts, an Oregon prosecutor requested
Olbinsky's Oregon arrest warrant be recalled. The Oregon
prosecutor's notes stated that "we're trying to work [with]
prosecutors in Boston to treat [Olbinsky] nicely, as he's a
material witness in a murder case there." In a tape-recorded
proceeding in Oregon, a prosecutor stated: "Because of the
Massachusetts prosecutor's need to have this defendant as a witness
in the homicide case, we had agreed to have the defendant released,
take off our warrant on this offense so that this defendant could
be released from custody back in Massachusetts." In June 1996,
long after Jackson was tried and convicted, Olbinsky pled no
contest and was convicted on the possession charge, and the
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manufacturing/delivering charges were dismissed. He was sentenced
only to a term of probation.
The district court denied Jackson's request for an
evidentiary hearing but found that Jackson had shown good cause to
be permitted to take discovery. See Jackson v. Marshall (Jackson
II), 500 F. Supp. 2d 1, 6 (D. Mass. 2007). Jackson was allowed to
propound discovery of "all documents of whatever name and nature"
evidencing "promises, rewards, and inducements given to Olbinsky
or on his behalf, including all actions taken in connection with
the Oregon proceedings." Id. He was also given permission to
take two seven-hour depositions of the two Massachusetts
prosecutors who had worked the case.
After conducting the allowed discovery, Jackson returned
to the district court. Along with the evidence earlier presented,
he submitted his attorney's affidavit describing her conversation
in March 2007 with Olbinsky's Massachusetts defense attorney, who
she averred stated that Olbinsky "was never anything more than a
material witness and that the prosecutor had charged Olbinsky with
murder in the first degree because he did not believe that out-
of-state authorities would pay attention to a material witness
warrant." Jackson v. Marshall (Jackson III), 634 F. Supp. 2d 146,
150–51 (D. Mass. 2009). Jackson also submitted the transcripts of
the two depositions, which he said revealed "little if anything
more than what [he] learned through independent means," because
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one of the prosecutors "had only a 'vague memory' of the case, and
could not explain how Olbinsky came to be released on bail or why
the Commonwealth did not oppose his motion to dismiss the
indictment against him," and the other prosecutor "was unaware
that Massachusetts prosecutors had asked the Oregon authorities to
treat Olbinsky 'nicely,' and could not remember how Olbinsky 'ended
up in court.'" Id. at 153.
Because the SJC gatekeeper justice determined that the
bail agreement was "readily discoverable" at the time of Jackson's
trial, id. at 160, the district court found that Jackson's claim
concerning the bail agreement--i.e., that under Brady v. Maryland,
373 U.S. 83, 87 (1963), prosecutors should have informed Jackson
of the agreement so he could use it to impeach Olbinsky--was
procedurally defaulted. Jackson III, 634 F. Supp. 2d at 159. The
district court found no excusable cause for the default, no actual
prejudice, and no potential for a fundamental miscarriage of
justice, and it therefore denied habeas relief. Id. at 159–62.
The district court also found that Jackson failed to give the state
courts the opportunity to consider his claim that Brady required
the prosecutors to disclose their interventions in Olbinsky's
Oregon case. Id. at 156. As to his claim that prosecutors violated
his due process rights by supposedly misrepresenting to the jury
(and allowing Olbinsky to misrepresent to the jury) that Olbinsky,
"not sheltered by any deal, faced murder charges for involvement
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in the same crime," the district court found that the claim had
been exhausted in the state courts and the SJC had decided its
merits, so it was eligible for habeas review under 28 U.S.C.
§ 2254. Id. at 162–63. With one nondefaulted claim exhausted and
the other unexhausted, Jackson's petition was stayed. Id. at 163.
Jackson returned to state court and filed a third Rule 30
motion to exhaust his claim that the Commonwealth violated his due
process rights by failing to disclose its intervention in
Olbinsky's Oregon case. The state court denied Jackson's motion,
but a single justice of the SJC granted Jackson's gatekeeper
petition for leave to appeal. The SJC affirmed in a reasoned
decision on the merits. See Commonwealth v. Jackson (Jackson IV),
9 N.E.3d 844, 845–46, 849–50 (Mass. 2014). Jackson came back to
federal court once more, and the district court rejected both of
his remaining claims. See Jackson v. Marshall (Jackson V), 148 F.
Supp. 3d 152, 156–57 (D. Mass. 2015). His renewed request for an
evidentiary hearing under 28 U.S.C. § 2254(e) was also denied.
Id. at 157. This timely appeal followed.
II. Discussion
A.
Under Brady, "the suppression by the prosecution of
evidence favorable to an accused . . . violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
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373 U.S. at 87. The duty to disclose extends to impeachment
evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985).
Jackson contends that the prosecution violated Brady and its
progeny by failing to disclose either its intervention in
Olbinsky's Oregon case or the purported fact that the Commonwealth
did not actually plan to pursue the first degree murder charge
against Olbinsky. Jackson also contends that the prosecutor
violated his constitutional rights by allowing Olbinsky to testify
dishonestly that he received no inducements for his testimony and
by repeatedly representing to the jury that Olbinsky was not
testifying subject to a deal or agreement.4 The district court,
whose decision we review de novo, see Moore v. Dickhaut, 842 F.3d
97, 99 (1st Cir. 2016) (citing Teti v. Bender, 507 F.3d 50, 56
(1st Cir. 2007)), determined that Jackson's claims were exhausted
in the state court, the state court adjudicated them on the merits,
4 In addition, Jackson argues that the district court erred
in determining that he procedurally defaulted his claim that
Massachusetts prosecutors violated Brady by failing to disclose
Olbinsky's favorable bail agreement. Jackson does not contest,
however, the district court's conclusion that the facts underlying
this claim were available to him at trial. He instead offers an
undeveloped argument that procedural-default rules should not
apply to him because his post-trial motion was made pro se. This
argument is waived, see Abrante v. St. Amand, 595 F.3d 11, 19 (1st
Cir. 2010) (citing United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)), and we are unpersuaded that the district court erred
in finding that Jackson procedurally defaulted his Brady challenge
based on the bail agreement.
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and the state court's decision did not warrant habeas relief under
either 28 U.S.C. § 2254(d)(1) or 28 U.S.C. § 2254(d)(2).
Jackson urges us to review the state court rulings de
novo. But under the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), 28 U.S.C. § 2254, we are typically required to
accord substantial deference to a state court's decision on the
merits. With respect to "any claim that was adjudicated on the
merits in State court proceedings," id. § 2254(d), AEDPA permits
us to grant a habeas petition only if the state court's decision
"was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States," Williams v. Taylor, 529 U.S. 362, 376 (2000)
(opinion of Stevens, J.) (quoting 28 U.S.C. § 2254(d)(1)), or the
decision "was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding,"
28 U.S.C. § 2254(d)(2). Only when a petitioner's claims are
exhausted in state court but the state court fails to consider
them on the merits or resolve them on adequate and independent
state law grounds do we review them de novo. See Jenkins v.
Bergeron, 824 F.3d 148, 152 (1st Cir. 2016) (quoting Zuluaga v.
Spencer, 585 F.3d 27, 30 (1st Cir. 2009)).
Jackson first argues that the SJC did not decide his
challenges on their merits because the court did not directly
address his argument that the suppressed evidence demonstrates
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that the Commonwealth suborned Olbinsky's perjury and therefore
requires a new trial based on the lower materiality threshold
described in United States v. Agurs, 427 U.S. 97, 103 & n.9 (1976)
(citing Mooney v. Holohan, 294 U.S. 103, 112 (1935), and Giglio v.
United States, 405 U.S. 150, 153–54 (1972)). This argument
misunderstands what an adjudication "on the merits" for AEDPA
purposes entails. A state court does not fail to adjudicate a
claim on the merits if it assesses the petitioner's claim but
applies a legal standard other than the standard petitioner
suggests. Cf. Lyons v. Brady, 666 F.3d 51, 54 (1st Cir. 2012)
(articulating a presumption that, absent any contrary indication,
a state court decision has adjudicated a claim on the merits).
Here there is no dispute that the SJC did evaluate, in a reasoned
decision on Jackson's third motion for a new trial in 2014, whether
Jackson received an unfair trial due to the Commonwealth's failure
to disclose the prosecution's interventions in Oregon or the
likelihood that Olbinsky's murder charge would be dismissed. See
Jackson IV, 9 N.E.3d at 845–50. These actions and Olbinsky's
lenient bail agreement are what Jackson claims demonstrate that
Olbinsky testified subject to inducements and lied under oath when
he claimed he received none. But as we will explain further below,
in determining that no inducements were given, the SJC necessarily
found that the prosecution did not suborn perjury. The SJC's
decision not to apply the materiality standard described in Agurs
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was not a refusal to consider the merits of Jackson's claims, but
was rather a choice to apply a different materiality standard based
on the facts in the record as the SJC understood them. The question
of whether the SJC applied the correct materiality standard when
evaluating these claims is one that we review through the lens of
AEDPA deference. See Mastracchio v. Vose, 274 F.3d 590, 604 (1st
Cir. 2001) (citing Agurs, 427 U.S. at 103).
Jackson next insists that these claims should be granted
de novo review because the SJC did not adjudicate them with a full
grasp of the record. He contends that because "the prosecution
did not disclose its deals with Olbinsky until long after the
appeal on [Jackson's] motion for new trial, the SJC rendered its
opinion on the clearly erroneous premise that there were no
undisclosed promises, rewards [or] inducements." Therefore, he
says, we should find that the Brady materials in this case
"surfaced for the first time during federal proceedings" and
therefore merit de novo review. Monroe v. Angelone, 323 F.3d 286,
297–98 (4th Cir. 2003) (citing Rojem v. Gibson, 245 F.3d 1130,
1140 (10th Cir. 2001), and Killian v. Poole, 282 F.3d 1204, 1208
(9th Cir. 2002)).
It is literally true that some of the evidence Jackson
relies upon in support of his petition did first surface during
federal habeas proceedings. But all of that evidence was
eventually presented to the SJC in the course of its collateral
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review. Furthermore, the record before us does not support
Jackson's claim that the SJC's decision was issued before the
prosecution admitted it made "deals with Olbinsky." The
Commonwealth's position has always been, and continues to be, that
no deal was ever struck with Olbinsky. Thus, unlike cases in which
a petitioner clears the hurdle imposed by 28 U.S.C. § 2254(d) and
adduces new evidence on habeas review, see Monroe, 323 F.3d at
297; Rojem, 245 F.3d at 1140; Killian, 282 F.3d at 1208, we are
constrained to the record presented to the state court, and we
must defer to the state court's merits decision on that record.5
B.
We therefore move to the central question under AEDPA:
whether the SJC's decision was contrary to clearly established
5 Nor, finally, do we find cause to abandon this conclusion
based on Jackson's claim that the SJC did not actually review all
of the evidence presented to it. Jackson argues that this is a
necessary inference because the SJC never mentioned the Oregon
prosecutor's notes or the tape recording of Olbinsky's Oregon
proceedings. But contrary to Jackson's assertions in his briefs
and at oral argument, the SJC expressly referenced the prosecutor's
notes. See Jackson IV, 9 N.E.3d at 846 ("The evidence include[s]
a notation memorializing the basis for recalling [Olbinsky's
Oregon] warrant: '[e]vidently we're trying to work w[ith]
prosecutors in Boston to treat this [defendant] nicely, as he's a
material witness in a murder case there.'" (first two alterations
added)). And although not explicit, the SJC's reference to
"[a]dditional evidence suggest[ing] the possibility that, after
the defendant's trial, Olbinsky's cooperation with Massachusetts
authorities may have been a factor in his receipt of lenient
treatment in Oregon," id., is consistent with the notion that the
SJC did, in fact, consider the tape recording.
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Supreme Court precedent or was based on a clearly erroneous view
of the factual record. See 28 U.S.C. § 2254(d).
Jackson does not mount a real challenge on the latter
front. The SJC found the following facts, none of which Jackson
seriously disputes: (1) Olbinsky gave materially identical
accounts of the robbery before and after the dates on which
inducements were allegedly given, see Jackson IV, 9 N.E.3d at 848;
(2) defense counsel impeached Olbinsky on other bases, including
his indictment on the same murder charge as Jackson, see id. at
846; and (3) other witnesses gave testimony with details that
matched Olbinsky's account, see id. at 850. Jackson contends that
the SJC should not have placed any weight on Olbinsky's matching
early accounts, given a few months after the murder, because
Olbinsky was under investigation or under indictment for other
crimes at the time he gave them. But Jackson does not elaborate
on this contention or explain what those crimes and possible
charges were, how they are relevant, whether police or prosecutors
offered inducements for Olbinsky's cooperation at the time, or
what (if any) evidence Jackson has or believes exists in support
of any of these details.
Jackson also protests that the SJC should not have
credited the accounts of other witnesses whose highly
incriminating testimonies included details that matched
Olbinsky's, because those witnesses were unreliable.
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Specifically, he points out that the only people who testified to
witnessing the crime could not identify him, and the three
witnesses who claimed to see him after the crime wearing a trench
coat and carrying a shotgun and loot were drug users and addicts,
two of whom had criminal records and two of whom admitted they had
used cocaine on the date of the crime. Jackson III, 634 F. Supp.
2d at 161–62 n.9. But while Jackson cross-examined those witnesses
based on their criminal histories and drug use, he has never
developed an argument that their testimonies should have been
entirely excluded. It was thus the jury's prerogative to gauge
the credibility of the witnesses, and it is our duty to "resolve[]
all credibility issues in favor of the verdict." Morgan v.
Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012) (alteration in original)
(quoting United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995)).
On this record, the SJC determined that Jackson was not
entitled to a new trial because there was not a "substantial risk
that the jury would have reached a different conclusion if the
evidence had been admitted at trial," Jackson IV, 9 N.E.3d at 847
(quoting Commonwealth v. Tucceri, 589 N.E.2d 1216, 1223 (Mass.
1992)), so the undisclosed evidence did not "cast[] real doubt on
the justice of [Jackson's] conviction," id. (quoting Commonwealth
v. Grace, 491 N.E.2d 246, 248 (Mass. 1986)). This analysis is
akin to the materiality analysis set forth in one line of Supreme
Court cases under Brady, which provides that "evidence is material
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'if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.'" Strickler v. Greene, 527 U.S. 263, 280 (1999)
(quoting Bagley, 473 U.S. at 682); see Smith v. Cain, 565 U.S. 73,
75 (2012). In fact, the SJC views its standard under Tucceri as
more favorable to petitioners than the prejudice standard imposed
under Brady, see McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir.
2002), so by finding that the undisclosed evidence did not satisfy
the lesser standard of Tucceri, the SJC found, a fortiori, that
Jackson was not sufficiently prejudiced for his trial to be deemed
unconstitutional under Brady, see Norton v. Spencer, 351 F.3d 1,
5 (1st Cir. 2003). That finding was not clearly erroneous.
Jackson's rejoinder is that the SJC should have applied
a different materiality standard because he demonstrated that the
prosecutor suborned perjury. Noting that "a prosecutor's knowing
inducement of perjury is treated more harshly than a failure, which
could be inadvertent, to disclose exculpatory evidence," Perkins
v. Russo, 586 F.3d 115, 119 (1st Cir. 2009), Jackson insists that
his is the case recognized in Agurs in which "the undisclosed
evidence demonstrates that the prosecution's case includes
perjured testimony and that the prosecution knew, or should have
known, of the perjury," 427 U.S. at 103. He therefore argues that
the SJC should have applied a "strict standard of materiality."
Id. at 103–04. "[W]hen a prosecutor knowingly uses perjured
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testimony, 'a conviction . . . is fundamentally unfair, and must
be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.'" Perkins,
586 F.3d at 119 (alteration in original) (quoting Agurs, 427 U.S.
at 103). This, says Jackson, is a different and far more
petitioner-friendly prejudice standard that the SJC neglected to
apply. In effect, Jackson contends that this case is like
Mastracchio, in which we found a state supreme court contravened
clearly established Supreme Court precedent when it applied the
higher materiality standard applicable in exculpatory-evidence
Brady cases instead of the lower standard applicable when a witness
has committed perjury about which the prosecution knew or should
have known. Mastracchio, 274 F.3d at 604.
Unlike Mastracchio, however, this case presents us with
a factual record from which the SJC reasonably, if implicitly,
concluded that Olbinsky did not perjure himself in denying receipt
of prosecutorial inducements. The SJC noted that "Olbinsky . . .
testified that he had received no inducements for his testimony."
Jackson IV, 9 N.E.3d at 846. It then concluded:
[E]ven assuming that the Commonwealth
requested that Oregon withdraw its warrant so
that Olbinsky could remain free on bail in
Massachusetts and that, at some point after
the defendant's trial, it communicated to
Oregon that Olbinsky had given helpful
testimony at the defendant's trial, there is
no evidence demonstrating that the
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Commonwealth made these efforts to induce
Olbinsky's cooperation.
Id. at 848. This is a reasonable interpretation of the record.
Neither police officers nor Massachusetts prosecutors, when
interviewed and deposed, recalled making any promises whatsoever
to Olbinsky. To the contrary, the officers involved swore
affidavits stating that they were certain they offered Olbinsky no
inducements. And the Oregon prosecutor's notes and the tape of
the Oregon proceedings indicated that Oregon officials sought to
be "nice" to Olbinsky and release him on bail in Massachusetts,
but this is at least as indicative, if not more, of Oregon's
interest in cooperating with Massachusetts in its effort to
prosecute a significant violent crime as it is of inducement.
By reasonably finding that the record lacked evidence
supporting a claim that the Commonwealth interceded in the Oregon
proceedings and otherwise treated Olbinsky nicely as consideration
for a deal to deliver favorable testimony, the SJC necessarily
determined that Olbinsky did not perjure himself by representing
to the jury that he was not testifying in exchange for inducements.
The SJC therefore did not depart from clearly established Supreme
Court precedent when it applied the materiality standard provided
in Tucceri.
Second, Jackson contends that the SJC misapplied Brady
and its progeny because the facts in this case required the SJC to
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find that failing to disclose the Commonwealth's intervention in
Olbinsky's pending case in Oregon--evidenced by the Oregon
prosecutor's notes, the tape of the Oregon proceedings, and the
fact that Olbinsky ultimately escaped with a slap on the wrist for
a serious drug crime--prejudiced Jackson and rendered his trial
unfair. But "[w]e do not . . . automatically require a new trial
whenever a combing of the prosecutors' files after the trial has
disclosed evidence possibly useful to the defense but not likely
to have changed the verdict." United States v. Dumas, 207 F.3d
11, 15 (1st Cir. 2000) (second alteration in original) (quoting
Giglio, 405 U.S. at 154); see United States v. Flores-Rivera, 787
F.3d 1, 17 (1st Cir. 2015). And that is precisely what the SJC
reasonably found this evidence to be, in light of the fact that
Olbinsky's account of the crime did not change between the time he
first contacted the authorities and the time he allegedly received
favorable treatment for his testimony. Jackson IV, 9 N.E.3d at
848 (citing Commonwealth v. LaVelle, 605 N.E.2d 852, 857 (Mass.
1993)). That finding was not contrary to, and did not involve an
unreasonable application of, clearly established Supreme Court
precedent. See Perkins, 586 F.3d at 119 (citing 28 U.S.C.
§ 2254(d)(1)).
Finally, Jackson argues that the evidence clearly shows
that the Commonwealth never intended to prosecute Olbinsky for
first degree murder. Addressing this argument calls for defining
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precisely what the argument is. Jackson learned that after his
trial the case against Olbinsky was dismissed without serious
opposition by the government. Nothing in Brady, though, requires
prosecutors to do the impossible: to disclose future events that
have not yet occurred. So Jackson must be arguing that the new
information about what the government did after trial implies other
information that existed prior to or during trial, yet was itself
not disclosed.
Were that the case--that is to say, were it true that
there existed material exculpatory or impeaching information
before or during trial that was not disclosed--Jackson would have
something to talk about. All he has, though, is Olbinsky's bail
agreement and his surmise and speculation that there was a deal
with Olbinsky to later drop the charge. This surmise and
speculation was enough to get Jackson discovery and a return trip
to the SJC. Nothing in this record, though, leads us to conclude
that the Massachusetts courts erred in remaining unconvinced that
Olbinsky testified subject to a deal with prosecutors. And if
there was no deal, then there was nothing about a deal to disclose.
Nor can Jackson say that he should have nevertheless been able to
try out this "implied deal theory" on the jury. As we have already
noted, the implication arises from a post-trial occurrence that
obviously could not have been disclosed to jurors.
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So, too, goes Jackson's alternative theory that the
post-trial dismissal of the murder charge against Olbinsky
suggests that, before or during Jackson's trial, prosecutors had
no intention to press the pending charge against Olbinsky. This
theory fails unless, for starters, it was unreasonable for the SJC
not to find that such an intent existed. The record evidence does
not compel that conclusion. Moreover, Jackson points us to no
clearly established federal law requiring prosecutors to disclose
their unilaterally held, present intentions for future dealings
with witnesses in a case.
To the extent Jackson instead claims that Olbinsky faced
a bona fide murder charge but knew that it was likely to be
dismissed if he cooperated with prosecutors, Jackson's counsel had
all he needed at the trial to make that argument, and did so. Even
after developing the record through the course of direct and
collateral review, only post-hoc, speculative inferences support
Jackson's claim that a deal between Olbinsky and the Commonwealth
existed. Nothing in this record leads us to conclude that the
Massachusetts courts erred in remaining unconvinced that there was
a deal with Olbinsky. The SJC's decision to reject Jackson's Brady
challenge did not contravene or misapply Supreme Court precedent,
and was not contrary to the evidence in the record.
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C.
Finally, Jackson asks that he be allowed to supplement
the record in an evidentiary hearing. To qualify for a hearing
under § 2254(e)(2), a petitioner for habeas relief must go one of
two routes. First, if the petitioner exhausted his claim but the
state court did not adjudicate it on the merits, he may be granted
an evidentiary hearing in the course of our de novo review of his
claim. See Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011).
Second, if the petitioner's claim was adjudicated on the merits in
state court and the petitioner can successfully show that his claim
has merit under § 2254(d), he may be granted an evidentiary hearing
before we determine whether there was structural error or actual
prejudice. See Sanchez v. Roden, 808 F.3d 85, 89 (1st Cir. 2015).
If the state court does adjudicate a petitioner's claims on the
merits, and he cannot clear the hurdle of § 2254(d) based on the
record that was before the state court, an evidentiary hearing
under § 2254(e) is not allowed. See Cullen v. Pinholster, 563
U.S. 170, 185 (2011). "We review the district court's refusal to
hold an evidentiary hearing for abuse of discretion." Companonio
v. O'Brien, 672 F.3d 101, 112 (1st Cir. 2012) (citing Forsyth v.
Spencer, 595 F.3d 81, 85 (1st Cir. 2010)).
The district court correctly found that Jackson failed
to "overcome the limitation of § 2254(d)(1) on the record that was
before the state court." Atkins, 642 F.3d at 49 (quoting Cullen,
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563 U.S. at 185). Thus, the "very limited circumstances" in which
the state court record should be supplemented in federal court,
Sivo v. Wall, 644 F.3d 46, 51 (1st Cir. 2011), are not present
here.
III. Conclusion
What never emerged from the information produced by the
Commonwealth or from the formal and informal discovery Jackson
conducted was any direct evidence that the Commonwealth ever
promised Olbinsky anything. At best, Jackson is left to argue
that because prosecutors in the Commonwealth and Oregon went easy
on Olbinsky, and because Oregon prosecutors were asked to treat
him "nicely," the Commonwealth must have so promised. Nothing
here, though, compels such an inference, or otherwise renders
unreasonable the contrary view of the SJC in its application of
legal rules well aligned with the requirements of federal
constitutional law. For this basic reason, Jackson's request for
habeas relief fails.
We affirm the decision of the district court. Jackson's
petition for habeas corpus is denied.
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