United States Court of Appeals For the First Circuit
No. 21-1899
MAC HUDSON,
Petitioner, Appellant,
v.
SHEILA KELLY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Chief Judge, Howard and Gelpí, Circuit Judges.
Alan D. Campbell for appellant. Eva M. Badway, Assistant Attorney General of Massachusetts, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellee.
March 5, 2024 BARRON, Chief Judge. Mac Hudson appeals from the
District Court's denial of his petition for a writ of habeas corpus
challenging his 1997 Massachusetts state-law convictions for,
among other things, second-degree murder. We affirm.
I.
A.
In 1990, Hudson and Charles Hughes were tried together
in Massachusetts Superior Court for charges relating to the April
22, 1989 shootings of Derek Twitty and Mark Jones while they were
selling heroin in Boston, Massachusetts.1 Twitty died from his
injuries, while Jones survived. The charges were for first-degree
murder, assault and battery by means of a dangerous weapon, assault
with intent to murder, assault with intent to rob, and unlawful
possession of a firearm. Hudson and Hughes were found guilty of
the lesser-included offense of second-degree murder and the other
charged offenses. Commonwealth v. Hudson, 30 N.E.3d 133, 2015 WL
2037025, at *1 (Mass. App. Ct. 2015) (unpublished table decision).
The Massachusetts Appeals Court ("MAC") later reversed those
convictions for reasons not relevant here and remanded the case
1We recount the facts of the case as they were found in the last reasoned decision by a state court -- here, the Massachusetts Appeals Court's decision in Commonwealth v. Hudson, 30 N.E.3d 133, 2015 WL 2037025 (Mass. App. Ct. 2015) (unpublished table decision), review denied, 35 N.E.3d 720 (Mass. 2015) -- "supplemented with other facts from the record that are consistent" with the MAC's findings, Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006). - 2 - for a new trial. See Commonwealth v. Hudson, 634 N.E.2d 154 (Mass.
App. Ct. 1994) (unpublished table decision).
Hudson and Hughes were tried for the second time in 1997
in connection with the shootings of Twitty and Jones. Hudson,
2015 WL 2037025, at *1. Hudson's resulting convictions are the
subject of the federal habeas petition before us here.
At the start of jury empanelment for this second trial,
Hudson was informed by the trial judge that sixteen jurors would
be seated and that he would have sixteen peremptory challenges.
See Commonwealth v. Hudson, 735 N.E.2d 1272, 2000 WL 1477124, at
*1 (Mass App. Ct. 2000) (unpublished table decision).
Toward the end of the third day of jury selection, by
which point fifteen jurors had been seated, the trial judge
commented about trying to seat the sixteenth juror by stating
"[w]e're going to try one more, and after that I quit." After
another juror was interviewed and excused for cause, the trial
judge announced that the proceedings would go forward with only
fifteen jurors. At this point, Hudson had exercised only eleven
of his sixteen allotted peremptory challenges, and counsel
objected, stating that he had been saving his challenges to use on
a "perfect [sixteenth] juror." The trial judge noted the objection
yet proceeded to trial with the fifteen jurors.
At trial, the Commonwealth called four individuals to
testify as eyewitnesses to the shootings -- Keil Kimbrough, Dwayne - 3 - Moody, Larry Brown, and Jones, the surviving victim. See Hudson,
2015 WL 2037025, at *1. Each of these witnesses had also testified
at the first trial of Hudson and Hughes. See Commonwealth v.
Hudson, 846 N.E.2d 1149, 1153 (Mass. 2006). Moody identified
Hudson and Hughes as having committed the shooting, while Jones
stopped short of positively identifying Hudson as his attacker.
Hudson, 2015 WL 2037025, at *1.
At the first trial, Kimbrough testified that he had been
present at the scene of the shootings. Hudson, 846 N.E.2d at 1153.
However, prior to the second trial, Kimbrough signed an affidavit
that recanted his testimony at the first trial, stated that he had
not in fact been present at the scene of the shooting, and claimed
that a police officer had instructed him on how to testify in
exchange for "consideration" in pending criminal matters of his
own. Id. at 1154. For that reason, Kimbrough invoked his Fifth
Amendment right against self-incrimination when called by the
Commonwealth to testify at the second trial. Id.
After appointing counsel for Kimbrough and considering
the issue, the trial judge concluded that there was "some risk"
that Kimbrough could expose himself to a prosecution for perjury
were he to testify and consequently declared Kimbrough
unavailable. Id. The trial judge then permitted the Commonwealth
to read into the record the entirety of Kimbrough's testimony from
Hudson's and Hughes's first trial. Id. - 4 - Brown, during his testimony at the second trial,
positively identified Hudson as one of Twitty's and Jones's
shooters, although he had not done so during his testimony at the
first trial. Id. at 1159. Hudson objected to Brown's first-time,
in-court identification and moved for a mistrial, and the trial
judge denied that motion. Hudson, 2000 WL 1477124, at *3.
Hudson was ultimately convicted in this second trial of
second-degree murder, assault and battery with a dangerous weapon,
armed assault with intent to murder, armed assault with intent to
rob, and unlawful possession of a firearm. Hudson, 2015 WL
2037025, at *1. He received a sentence of life imprisonment for
second-degree murder, a consecutive sentence of eight-to-ten
years' imprisonment for assault and battery, and lesser concurrent
sentences for the remaining offenses.
B.
Hudson appealed his convictions. On direct appeal to
the MAC, he pointed to several alleged errors by the trial court,
including its handling of the jury-selection process, its decision
to allow Kimbrough to exercise his privilege against self-
incrimination and then to permit Kimbrough's testimony from the
first trial to be read into the record, and its refusal to declare
a mistrial following Brown's surprise identification of Hudson.
For reasons we will detail below, the MAC affirmed, see Hudson,
2000 WL 1477124. The Massachusetts Supreme Judicial Court ("SJC") - 5 - denied Hudson's application to obtain further appellate review
("ALOFAR"). See Commonwealth v. Hudson, 737 N.E.2d 467 (Mass.
2000) (unpublished table decision).
In 2001, Hudson filed a motion for a new trial pursuant
to Massachusetts Rule of Criminal Procedure 30(b). In that motion,
Hudson raised, among other claims, an ineffective assistance of
counsel claim which precipitated five years of litigation,
culminating in the SJC's denial of relief. See Hudson, 846 N.E.2d
at 1152.
In 2006, following the unfavorable resolution of his
first new trial motion, Hudson filed the petition for a writ of
habeas corpus that is at issue in this appeal pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the District of
Massachusetts. Before the District Court had reached the merits
of his habeas petition, Hudson sought and was granted a stay of
those federal proceedings so that he could pursue a second new
trial motion in state court. Hudson's second new trial motion was
denied by the state trial court, and Hudson appealed.
While that appeal was pending, Hudson filed a third new
trial motion in state court, which was also denied. Hudson
appealed the denial of that motion as well, and the MAC
consolidated its appellate review of both motions. In 2015, the
MAC affirmed the denials of Hudson's second and third new trial
motions in the last reasoned state court opinion authored in this - 6 - case to date. See Hudson, 2015 WL 2037025. Hudson then filed an
ALOFAR, which the SJC denied. See Hudson, 35 N.E.3d 720.
Hudson subsequently returned to federal court and moved
to reopen and amend his stayed petition for habeas corpus. The
District Court granted Hudson's motions, after which Hudson filed
his now-operative petition, which raised ten grounds for habeas
relief, including, as relevant to this appeal, that the trial court
violated Hudson's right to due process by (1) "permitting the
prosecution to read the prior testimony of the key Commonwealth
witness [Kimbrough] to the jury" after determining that he had
asserted a valid Fifth Amendment right against self-incrimination
and was thus unavailable to testify; (2) deciding "while empaneling
the jury to change the number of jurors to be seated," thereby
"unfairly prejudic[ing] [Hudson's] use of his peremptory
challenges"; and (3) "refus[ing] to declare a mistrial after a
surprise, first-time, in-court identification of [Hudson] by Larry
Brown."
Hudson's petition for habeas corpus was referred to a
United States Magistrate Judge for all pretrial proceedings. The
Magistrate Judge then issued a Report and Recommendation
suggesting that the District Court withhold judgment on the issue
of Kimbrough's testimony pending further briefing by the parties
but deny Hudson's petition on all other grounds. After receiving
the parties' additional briefing on the issue of Kimbrough's - 7 - testimony, the Magistrate Judge issued a second Report and
Recommendation suggesting that the District Court deny Hudson
relief on that ground as well.
Hudson subsequently filed objections to both Reports and
Recommendations, after which the District Court overruled Hudson's
objections, accepted and adopted both Reports and Recommendations,
and denied Hudson's petition in full. Hudson timely appealed.
II.
In cases where, as here, "'the district court undertakes
no independent factfinding [and] we are effectively in the same
position as the district court vis-à-vis the state court record,'
our review of a district court's denial of a habeas petition is de
novo." Porter v. Coyne-Fague, 35 F.4th 68, 74 (1st Cir. 2022)
(alteration in original) (quoting Pike v. Guarino, 492 F.3d 61, 68
(1st Cir. 2007)). "Our review of the state court decision is, in
contrast, governed by [the Antiterrorism and Effective Death
Penalty Act ("AEDPA")], which 'demands that a federal habeas court
measure a state court's decision on the merits against a series of
peculiarly deferential standards.'" Quintanilla v. Marchilli, 86
F.4th 1, 15 (1st Cir. 2023) (quoting Porter, 35 F.4th at 74
(internal quotation marks omitted)).
AEDPA's deferential standards are set forth in 28 U.S.C.
§ 2254(d), which provides that, "with respect to any claim that
was adjudicated on the merits in State court proceedings," a - 8 - federal court may not grant a petitioner's application for habeas
relief unless the petitioner can show that the state court's
"adjudication of the claim -- (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States," or "(2) resulted in a decision that 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).
Subsection 2254(d)(1) "splits into two distinct avenues
for relief: the 'contrary to' clause and the 'unreasonable
application' clause." Porter, 35 F.4th at 74. The "contrary to"
clause is satisfied where the petitioner can show that "the state
court arrive[d] at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or . . . decide[d] a case
differently than [the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412–
13 (2000). The "unreasonable application" clause requires a
showing that "the state court identifie[d] the correct governing
legal principle from [the Supreme] Court's decisions but
unreasonably applie[d] that principle to the facts" of the
petitioner's case. Id. at 413.
For purposes of this analysis, "clearly established
Federal law, as determined by the Supreme Court of the United
States" means "the holdings, as opposed to the dicta, of th[e] - 9 - Court's decisions as of the time of the relevant state-court
decision." Id. at 412. "State courts must 'reasonably apply'
existing Supreme Court precedent, but they need not 'extend that
precedent.'" Porter, 35 F.4th at 74 (quoting White v. Woodall,
572 U.S. 415, 426-27 (2014)). "The upshot of the AEDPA habeas
regime is that 'when the last state court to decide a prisoner's
federal claim explains its decision on the merits in a reasoned
opinion . . . a federal habeas court simply reviews the specific
reasons given by the state court and defers to those reasons if
they are reasonable.'" Id. at 75 (quoting Wilson v. Sellers, 138
S. Ct. 1188, 1192 (2018)).
III.
On appeal from the District Court's denial of his
petition for habeas corpus, Hudson challenges the rejection of
three of his asserted grounds for habeas relief. He contends that,
with respect to each, the underlying state court ruling was either
contrary to, or involved an unreasonable application of, Supreme
Court precedent such that he is now entitled to relief pursuant to
§ 2254(d)(1). Hudson's first challenge pertains to his contention
that his petition must be granted on the basis of his Confrontation
Clause rights having been violated when the trial judge deemed
Kimbrough unavailable to testify and subsequently permitted the
prosecution to read into the record Kimbrough's testimony from
Hudson's first trial. Hudson's second challenge pertains to his - 10 - contention that his petition must be granted because the trial
judge's midstream decision during jury selection to reduce the
total number of jurors to be empaneled unfairly prevented him from
utilizing his statutorily allotted peremptory strikes, thereby
denying him due process of law. Hudson's third challenge concerns
his assertion that he is entitled to habeas relief because the
trial judge violated his due process rights in denying his motion
for a mistrial after witness Larry Brown made a surprise in-court
identification of him.
We start with Hudson's challenge to the denial of his
petition that concerns the Confrontation Clause -- which itself
comes in two parts. The first part pertains to the finding by the
trial judge that Kimbrough was "unavailable" as a witness. The
second part pertains to Hudson's contention that, even if Kimbrough
was unavailable, the testimony that Kimbrough gave at the first
trial was not "reliable," thus making it improper for that
testimony to have been read to the jury at the second trial.
1.
The District Court rejected the unavailability-based
claim for habeas relief on the ground that Hudson procedurally
defaulted it by failing to raise the claim on direct appeal in
state court. See 28 U.S.C. § 2254(b)(1); Josselyn v. Dennehy, 475
F.3d 1, 2-3 (1st Cir. 2007) (noting that § 2254(b)(1) requires a - 11 - state habeas petitioner to exhaust available remedies in state
court); Evicci v. Comm'r of Corr., 226 F.3d 26, 27 (1st Cir. 2000)
(per curiam) (same).
Hudson challenges the District Court's conclusion in
part on the ground that he implicitly presented the claim to the
state courts by citing to Ohio v. Roberts, 448 U.S. 56 (1980),
abrogated by Crawford v. Washington, 541 U.S. 36, 68 (2004), in
his brief to the MAC and in his ALOFAR to the SJC. But that
citation itself fails to specify that the ground of challenge was
to the finding of unavailability itself, as opposed to the
"reliability" prong of Ohio v. Roberts, and nothing in the
surrounding discussion in the brief in question suggests that the
unavailability ground was being pressed by Hudson. Thus, we cannot
see how we could conclude that the challenge to the trial judge's
unavailability finding was "fairly presented" to the MAC, Baldwin
v. Reese, 541 U.S. 27, 30 (2004), such that a reasonable jurist
would have been alerted to the existence of the unavailability
question, see Jaynes v. Mitchell, 824 F.3d 187, 192 (1st Cir.
2016); Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014).
Hudson does also argue that, in any event, when the MAC
affirmed his conviction on direct appeal, it addressed the claim
(and, by extension, the SJC's summary denial of his ALOFAR
addressed it, too). In support of that contention, Hudson directs
our attention to this statement in the MAC's ruling as to his - 12 - Confrontation Clause claim: "Kimbrough had become unavailable to
testify at the second trial by virtue of his exercise of his Fifth
Amendment privilege against self-incrimination." Hudson, 2000 WL
1477124, at *3. In the preceding sentence, however, the MAC framed
the claim of error to which it was turning its attention as
relating to the question of reliability. And, in the rest of the
paragraph, the MAC discussed exclusively the reliability prong of
Ohio v. Roberts.
Thus, we do not read the statement by the MAC to which
Hudson directs our attention to demonstrate that the MAC
adjudicated his challenge to the unavailability finding. Indeed,
when Hudson did ultimately present this claim in subsequent state-
court collateral attacks, the state courts denied the claim on the
basis of "an adequate and independent state procedural rule,"
Davila v. Davis, 582 U.S. 521, 527 (2017). When the MAC reviewed
the consolidated appeals of Hudson's second and third motion for
a new trial, it explained that it was reviewing "to determine only
whether there has been error creating a substantial risk of
miscarriage of justice," and in the course of that review, the MAC
denied the claim, finding no error. 2015 WL 2037025, at *4. That
feature of the ruling by the MAC is significant for present
purposes because we have understood the last reasoned state court
decision to have deemed a claim procedurally defaulted where the
court applied the "miscarriage of justice standard." See Barbosa - 13 - v. Mitchell, 812 F.3d 62, 67 (1st Cir. 2016) (quoting Commonwealth
v. Barbosa, 933 N.E.2d 93, 111 (Mass. 2010)).
Finally, Hudson argues that we must reach the merits of
his unavailability claim because a "failure to consider" that claim
"will result in a fundamental miscarriage of justice." Lee v.
Corsini, 777 F.3d 46, 58 (1st Cir. 2015) (quoting Harris v. Reed,
489 U.S. 255, 262 (1989)). He contends that this "narrow
exception," Burks v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995), to
the bar to our addressing a procedurally defaulted claim applies
here, as he can make a "colorable showing of factual innocence,"
Watkins v. Ponte, 987 F.2d 27, 31 (1st Cir. 1993) (quoting
McCleskey v. Zant, 499 U.S. 467, 495 (1991), superseded by statute
on other grounds as recognized by Banister v. Davis, 140 S. Ct.
1698, 1707 (2020)). We disagree.
A showing of actual innocence must be supported by "new
reliable evidence . . . that was not presented at trial," Lee, 777
F.3d at 62 (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)).
Because Hudson's "argument on this point alludes to no new
information suggesting innocence, but merely rehashes" evidence
that was available at the time of his trial, it fails. Burks, 55
F.3d at 718.
2.
The District Court also rejected Hudson's reliability-
based Confrontation Clause challenge concerning Kimbrough. The - 14 - District Court fully adopted the Magistrate Judge's Report and
Recommendation as to this challenge, which recommended rejecting
the challenge on the ground that the MAC's conclusion that
Kimbrough's testimony fell within a firmly rooted exception to the
hearsay rule, and thus had the required indicia of reliability
under Ohio v. Roberts, was not unreasonable. Here, too, we agree.
In rejecting this Confrontation Clause-based claim on
direct appeal, the MAC first noted that the issues in Hudson's
first and second trials were "substantially the same" and that, at
the first trial, "Kimbrough was cross-examined without undue
restriction by competent defense counsel with similar motivation."
Hudson, 2000 WL 1477124, at *3. The MAC then stated that
Kimbrough's testimony from the first trial fell within a recognized
exception to the hearsay rule, and thus was admissible, and,
"[m]oreover," that "the evidence bore the required indicia of
reliability to satisfy constitutional requirements." Id.
Neither party contests that -- in general -- prior
recorded testimony is a firmly rooted hearsay exception that, under
Ohio v. Roberts, could be admitted without a further showing of
"adequate 'indicia of reliability,'" 448 U.S. at 66. Hudson
contends, however, that the inquiry cannot end here in his case
because the "central mission of the right to confrontation" was
undermined at his trial. He contends this is so because the
testimony read into evidence was testimony that Kimbrough had - 15 - asserted was false in an affidavit, and therefore, Hudson argues,
the jury was denied a satisfactory basis from which to evaluate
the prior testimony because there was no opportunity for cross-
examination of Kimbrough at the second trial regarding his
subsequent sworn recantation.
The MAC reasoned, however, that the recantation
affidavit "did not affect the admissibility of the testimony, only
its weight" and that, because Hudson was afforded the opportunity
to impeach Kimbrough's prior recorded testimony with, among other
things, the recantation affidavit, "the fact finder [was afforded]
a 'satisfactory basis for evaluating the truth of the prior
statement.'" Hudson, 2000 WL 1477124, at *3 (quoting Commonwealth
v. Bohannan, 434 N.E.2d 163, 171 (Mass. 1982)). Where the MAC has
explained its decision on the merits, we "simply review[] the
specific reasons given by the state court and defer[]" if those
reasons are reasonable. Porter, 35 F.4th at 75 (quoting Wilson,
138 S. Ct. at 1192). We cannot conclude that the MAC's reasons
here were so unreasonable "that there could be no 'fairminded
disagreement' on the question." Id. (quoting White, 572 U.S. at
427).
The reasons provided by the MAC in support of its
conclusions were not unreasonable where then-governing Supreme
Court precedent held that such testimony falling within a firmly
rooted hearsay exception sufficed for purposes of the - 16 - Confrontation Clause "without more," Ohio v. Roberts, 448 U.S. at
66, and Hudson cites no authority for the proposition that a
subsequent recantation so affected the reliability of the
testimony that its admissibility under the Confrontation Clause is
called into question, see Brown v. Ruane, 630 F.3d 62, 68 (1st
Cir. 2011) ("[T]hat no holding of the Supreme Court required
application to the factual context presented by the petitioner's
claim is dispositive in the habeas analysis."). Thus, we see no
basis for concluding that it was unreasonable for the MAC to treat
the evidence admitted as reliable.
We turn next to Hudson's challenge to the denial of his
claim for habeas relief that concerns jury selection at his
criminal trial. Here, Hudson contends that the constitutional
violation was the state trial judge's late change in jury selection
procedures, which he contends violated his right to due process
and was a decision that was contrary to, or involved an
unreasonable application of, federal law. We affirm the District
Court's determination that Hudson has failed to make that showing.
As described above, when jury empanelment for the second
trial started, the trial judge informed Hudson that sixteen jurors
would be seated and that, because Massachusetts law provided one
peremptory challenge for each juror, Hudson would have sixteen - 17 - peremptory challenges. See Hudson, 2000 WL 1477124, at *1. Near
the end of the third day of jury selection, and shortly after the
selection of the fifteenth juror, the trial judge commented that
the parties were "going to try [to seat] one more [juror], and
after that I quit." The next juror was then questioned, challenged
by Hudson's co-defendant, and excused for cause. The trial judge
at that point declared, "That's it. I'm going with fifteen."
At the point the trial judge stopped jury empanelment,
Hudson had only exercised eleven of his sixteen peremptory
challenges. Hudson's counsel objected to the trial judge's
decision to stop empanelment and stated that he had "saved a bunch
of peremptories [sic] so [he] could have [his] perfect [sixteenth]
juror" and that he had saved five challenges "waiting for that
[sixteenth] juror who was going to be the person that [he] could
best communicate with." The trial judge noted the objection yet
proceeded to trial with the fifteen jurors.
On direct appeal, Hudson argued that his right to due
process, as articulated in Ross v. Oklahoma, 487 U.S. 81 (1988),
was violated because he did not receive that which state law
provided as to peremptory challenges. Hudson contended that when
the trial judge changed the number of jurors to be empaneled
midstream, the trial judge rendered "worthless" five of the
peremptory challenges with which Hudson had started the
empanelment process. - 18 - In rejecting Hudson's challenge, the MAC first observed
that under Massachusetts law, even with a timely objection, "no
irregularity in the jury [empaneling] process" is sufficient to
set aside a jury verdict absent "some proof of prejudice." Hudson,
2000 WL 1477124, at *1 (quoting Commonwealth v. Campbell, 474
N.E.2d 1062, 1067 (Mass. 1985) (citing M.G.L. c. 234, § 32)). The
MAC proceeded to conclude that, because "there [was] no evidence
that Hudson was precluded from exercising his peremptory
challenges during the [e]mpanelment process or that he was forced
to accept a juror who should have been excluded," there "was no
error" in the trial judge proceeding as he did. Id. In coming to
this conclusion, the MAC relied on the SJC's decision in
Commonwealth v. Beldotti, 567 N.E.2d 1219 (Mass. 1991).
Hudson contends, to us, as he did to the District Court,
that the MAC made and applied a statement of law contrary to
Supreme Court precedent when it said that a showing of prejudice
was required to set aside the verdict and, second, that the MAC
unreasonably applied Ross in rejecting his due process claim and
that, in that process, it misapplied state law. In this latter
challenge, he argues that (1) the MAC erred in relying on Beldotti
to conclude that there was no prejudice on the facts of Hudson's
case because Beldotti was distinguishable to the point of
irrelevance and (2) the MAC misapplied state law in concluding
- 19 - that a showing of prejudice from a diminution of peremptory
challenges was necessary to demonstrate a violation of state law.
We start with Hudson's contention that the MAC, in
applying the rule from Campbell requiring a showing of prejudice
to set aside a verdict for any irregularities in the jury
empaneling process, erred. In so contending, it is not entirely
clear to us whether Hudson is arguing that the MAC's ruling was
contrary to, or involved an unreasonable application of, Supreme
Court precedent. But, either way, the argument is without merit.
Hudson premises the claim of error by the MAC on the
fact that the Supreme Court has held that the denial or impairment
of the right to a peremptory challenge is reversible error without
a showing of prejudice. See Swain v. Alabama, 380 U.S. 202, 219
(1965), overruled on other grounds by Batson v. Kentucky, 476 U.S.
79 (1986) ("The denial or impairment of the right [to use
peremptory challenges in jury selection] is reversible error
without a showing of prejudice." (first citing Lewis v. United
States, 146 U.S. 370 (1892) and then citing Harrison v. United
States, 163 U.S. 140 (1896))). He thus contends that the MAC's
adverse ruling on his Ross claim is fatally flawed because the MAC
rejected the claim on the ground that Hudson had failed to show
any prejudice from the denial of his peremptory challenges. We
are not persuaded. - 20 - Hudson's challenge is based on the due process
principles articulated by the Supreme Court in Ross v. Oklahoma.
In Ross, the Court assumed without deciding that the Constitution
applied the rule that denial of the right to a peremptory challenge
is reversible error without a showing of prejudice to state
criminal proceedings. See 487 U.S. at 89. The Court made clear,
however, that the right is only "denied or impaired" if a defendant
fails to receive "that which state law provides," as the Due
Process Clause itself does not confer the right to a peremptory
challenge. Id.
Thus, even if Hudson is correct that under Swain no
showing of prejudice is necessary to establish reversible error
under federal law once a denial or impairment of the right to a
peremptory challenge that has been conferred by a State is
established, it may nonetheless be true that, as a matter of state
law, there is a prejudice requirement for purposes of showing that
there was a denial or impairment of the underlying right.
Thus, if Massachusetts state law requires a showing of
prejudice to establish a denial of a right to a peremptory
challenge, then Hudson's challenge under Ross can succeed only if
he can show that he was prejudiced by the asserted denial of
peremptory challenges. So, to the extent the MAC is understood to
be stating that such a showing of prejudice is necessary as a
matter of state law to show the denial of the state law right to - 21 - peremptory challenge, then Hudson's contention fails because the
MAC's application of Ross was not at odds in any respect with
Supreme Court precedent.2
Hudson does argue that the MAC still unreasonably
applied Supreme Court precedent in rejecting his Ross challenge
because he was in fact denied that which state law provided to him
with respect to the exercise of peremptory challenges and the MAC
misapplied state law in concluding otherwise. But we conclude
that Hudson has failed to make this showing.
Hudson first contends that the MAC unreasonably applied
state law by relying on the SJC's decision in Beldotti to conclude
that, on the facts of his case, Hudson had failed to demonstrate
prejudice flowing from the denial of the peremptory challenges to
which he claimed he was entitled. Hudson argues that defense
counsel in Beldotti did not object before the trial court and only
raised the denial-of-a-peremptory-challenge issue on appeal; that,
because of that forfeiture, the SJC was reviewing for a substantial
risk of a miscarriage of justice; and that there was no evidence
in the record suggesting that defense counsel would have exercised
2 We note that Hudson is not bringing a separate due process claim that Massachusetts law violates his right to due process by requiring a showing of prejudice to prevail on a challenge to the denial of peremptory strikes as a matter of state law. - 22 - her or his peremptory challenges any differently had she or he
known of the ultimate procedure on which the trial court would
settle ahead of time. Thus, Hudson maintains, Beldotti has little
relevance to his own case, in which defense counsel timely
objected, stated on the record that he would have exercised his
peremptory challenges differently had he known the trial judge
would only seat fifteen jurors, and the MAC applied a less onerous
standard of review.
But we do not understand the MAC to have concluded that
there was no prejudice in Hudson's case because the facts were
sufficiently similar to those in Beldotti that the SJC's no-
prejudice conclusion in that case was controlling. Rather, we
read the MAC merely to have relied on Beldotti for the simple
proposition that, in the absence of a violation of state law or
some other showing of unfairness, there is no federal due process
problem. See Hudson, 2000 WL 1477124, at *1. Because Hudson makes
no argument -- independent of the contention that Beldotti was
distinguishable -- that the MAC's no-prejudice finding itself was
unreasonable, any such argument is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We thus can discern no
misapplication of state law by the MAC in this respect, let alone
one that constitutes an unreasonable application of state law.
- 23 - b.
Hudson next contends that the MAC misapplied state law
in rejecting his Ross claim because Campbell's prejudice rule bears
only on whether the state court will provide a remedy, in the form
of setting aside a jury verdict, not on whether state law was
violated because of a denial of a peremptory challenge. Thus,
Hudson contends, the MAC misapplied state law in rejecting his
Ross claim, because it failed to address whether he had been denied
that to which he was entitled under state law and instead rejected
the claim solely on the ground that he was not entitled to a remedy
for having been denied that entitlement.
We again disagree. In fact, precisely because of the
MAC's citations to Campbell and Beldotti, we do not see how else
to read the MAC other than as addressing Hudson's contention
pertaining to the diminution of his peremptory challenges and
deciding that, as a matter of Massachusetts law, the entitlement
to a certain number of peremptory challenges is a qualified one,
that the state law entitlement is only denied when it may be shown
that prejudice flows from the inability to exercise that many
peremptory challenges.
This conclusion follows from how the MAC started by
reciting the rule in Campbell that a showing of prejudice is
necessary before substantively analyzing whether Hudson had shown
prejudice. It was only after concluding that Hudson had not shown - 24 - prejudice that the MAC drew the ultimate conclusion that "[t]here
was no error," with the citation to Beldotti explaining that in
the absence of a state-law violation, or other showing of
unfairness, no federal due process principle is violated. See
Hudson, 2000 WL 1477124, at *1. Because of the MAC's explicit
conclusion that there was "no error" and its invocation of Beldotti
for a proposition of which a necessary premise is that there is no
state-law violation, it is clear that the MAC was not deciding the
remedial question of whether a state-law violation warranted
setting aside the jury but rather was deciding that there was no
violation of state law of which to complain.
To the extent Hudson contends that this conclusion
itself was a misapplication of state law on the ground that there
was no basis in state law for the MAC to have arrived at this
conclusion because, first, the state rule of criminal procedure
pertaining to defendants' entitlement to peremptory challenges
says nothing about prejudice and, second, the only other
Massachusetts case deciding a similar issue was Beldotti, which is
distinguishable, we again conclude that Hudson's argument is
without merit.
To prevail Hudson must show that the MAC's application
of state law was unreasonable such that there could be no fair-
minded disagreement among jurists as to the MAC's application of
Ross. See Porter, 35 F.4th at 75. But where, as here, Hudson is - 25 - contending no more than that there was no Massachusetts precedent
directly on point and the MAC was ostensibly deciding the issue in
the first instance, that showing has not been made.3
C.
We turn finally to Hudson's contention that he is
entitled to a writ of habeas corpus based on the trial judge's
failure to declare a mistrial after witness Larry Brown made a
surprise, first-time, in-court identification of Hudson at trial.
The District Court ruled otherwise on the ground that the MAC's
rejection of this claimed due process violation was neither
contrary to nor an unreasonable application of then-existing
Supreme Court precedent, and we agree.
As we noted above, Brown testified at Hudson's and
Hughes's first and second trials as an eyewitness to the shooting
of Twitty and Jones. At the first trial, Brown testified that he
had been present at the shooting, and he positively identified
Hughes as one of the assailants. However, he maintained that he
3 As an aside, we note that assuming arguendo the MAC had misapplied state law in coming to its conclusion, and therefore Hudson was denied a peremptory challenge in violation of state law, the Supreme Court has explained that "errors of state law do not automatically become violations of due process" in the course of rejecting a due process challenge predicated on the seating of a juror over a defendant's peremptory challenge. Rivera v. Illinois, 556 U.S. 148, 160 (2009). - 26 - could not identify Hudson as having been one of the shooters. The
Commonwealth thus did not ask Brown to identify Hudson during the
first trial.
At Hudson's second trial, the Commonwealth once again
called Brown to testify as an eyewitness. Before Brown was called
to testify, the prosecutor expressed to Hudson's counsel that Brown
would not be asked to identify Hudson. Then, during Brown's direct
examination, the prosecutor prompted Brown "to tell us who you saw
getting out of the car" that Brown had observed pull up to the
scene immediately prior to the shooting. Brown replied, "The two
gentlemen over there," indicating Hughes and Hudson, who were
seated together at the defense table.
Hudson's counsel objected to the identification and
requested a sidebar conference. At sidebar, the prosecutor
explained, "I expected [Brown] to say that he saw [Hughes]. I
didn't expect him to say he saw [Hudson] too. That's what he
testified to before." The trial judge expressed that he "[did
not] really think" that Brown's identification of Hudson had been
the result of "chicanery or trickery on the part of [the
prosecutor]," and he stated that there was therefore "no
therapeutic remedy" available to cure the surprise identification.
In response, Hudson's trial counsel moved for a mistrial, which
motion the trial judge denied.
- 27 - 2.
Hudson contends that "it was constitutional error to
deny the motion for mistrial" following Brown's surprise in-court
identification of him.4 That is so, he argues, because "[t]he
circumstances of Brown's identification [were] highly suggestive":
Brown "had witnessed Hudson sitting at the defense table during
several pretrial proceedings and at the first trial prior to
identifying him at the second trial," and "Hudson was seated with
his co-defendants who were known to Brown." Invoking then-existing
Supreme Court precedent, which he asserts clearly establishes
broadly that "reliability is the linchpin in determining the
admissibility of identification testimony," Manson v. Brathwaite,
432 U.S. 98, 114 (1977), Hudson argues that because Brown's
identification of Hudson was so unreliable, the MAC's
determination that the trial judge did not err by denying Hudson's
motion for a mistrial following the identification was contrary to
or an unreasonable application of clearly established federal law
4 In passing, Hudson also claims that Brown's identification of Hudson "should have been excluded" due to its unreliability, but he stops short of arguing that the trial judge's failure to exclude the identification was constitutional error. Further, the record shows that Hudson's trial counsel did not move to exclude the identification but rather asked only that the trial judge declare a mistrial. As such, to the extent that Hudson means to claim in the alternative that it was constitutional error for the trial judge not to have excluded the identification, that argument is waived. See Zannino, 895 F.2d at 17. - 28 - such that he is entitled to habeas relief under 28 U.S.C.
§ 2254(d)(1). We disagree.
The MAC reasoned that the trial judge did not err by
admitting Brown's identification of Hudson because "[u]nder the
law in existence at the time of Hudson's trial, in-court
identifications were inadmissible only where they were 'tainted by
an out-of-court confrontation that was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification.'" Hudson, 2015 WL 2037025 at *5 (quoting
Commonwealth v. Crayton, 21 N.E.3d 157, 167 (Mass. 2014) (cleaned
up)). "Because Hudson [did not] allege[] that . . . Brown's
identification[ was] somehow tainted by improper or suggestive
out-of-court identification procedures, and the record [did] not
support such an inference," the MAC concluded, Hudson's claim
failed. Id.
As the Report and Recommendation adopted by the District
Court explained, the then-existing "clearly established law"
concerning the reliability of witness identifications "ar[ose] in
the context of unnecessarily suggestive pretrial identification
followed by an in-court identification or the admission of the
suggestive pretrial identification procedures." Indeed, in
support of his contention that the circumstances of Brown's first-
time, in-court identification were impermissibly suggestive,
Hudson cites only to Supreme Court case law concerning the - 29 - suggestiveness of various pretrial, out-of-court identification
procedures. See Brathwaite, 432 U.S. at 101–02 (witness identified
the defendant pretrial after being shown a single photograph of
the defendant at police headquarters); Moore v. Illinois, 434 U.S.
220, 229–30 (1977) (victim viewed the defendant and heard evidence
implicating him at his arraignment before being asked to identify
him as her assailant); Kirby v. Illinois, 406 U.S. 682, 691 (1972)
(witness identified the defendants, before charges were filed and
without defense counsel present, via a show-up where all present
except the victim and defendants were police officers); Neil v.
Biggers, 409 U.S. 188, 195 (1972) (victim identified the defendant
pretrial via a single-suspect show-up).
Hudson does not argue that the record supports a finding
that Brown was prompted at any point prior to his in-court
identification to identify Hudson under any circumstances,
suggestive or otherwise. He contends only that Brown's
opportunities to observe Hudson at the defense table at the first
trial and at multiple pretrial proceedings prior to the second
trial combined to create impermissibly suggestive circumstances
that tainted Brown's first-time, in-court identification of him.
And, Hudson argues, because at the time of his second trial the
Supreme Court had announced in Brathwaite that "reliability is the
linchpin in determining the admissibility of identification
testimony," 432 U.S. at 114, clearly established Supreme Court law - 30 - required the trial judge to declare a mistrial following Brown's
unreliable identification.
But, as the Supreme Court has explained, while 28 U.S.C.
§ 2254(d)(1) "provides a remedy for instances in which a state
court unreasonably applies [Supreme Court] precedent[,] it does
not require state courts to extend that precedent or license
federal courts to treat the failure to do so as error." White,
572 U.S. at 426. That means that, "'if a habeas court must extend
a rationale before it can apply to the facts at hand,' then by
definition the rationale was not 'clearly established at the time
of the state-court decision.'" Id. (quoting Yarborough v.
Alvarado, 541 U.S. 652, 666 (2004)).
We agree with the District Court that the facts of
Hudson's case are distinct enough from those at issue in Brathwaite
and the other precedent Hudson invokes that the MAC cannot be said
to have misapplied clearly established federal law by denying
Hudson relief on this claim. In Brathwaite, the Court considered
the admissibility of an undercover officer's identification
testimony where the officer had conducted a controlled buy of
narcotics from the defendant, who was then unknown to him; given
a detailed description of the defendant to another officer
immediately following the controlled buy; and been presented two
days later with a single photograph of the defendant, whom he
confirmed was the man who had sold him the narcotics. See 432 - 31 - U.S. at 100–02. To decide this question, the Brathwaite Court had
to resolve a circuit split over whether to apply a per se
exclusionary rule or a "totality of the circumstances" test focused
on the reliability of the identification to determine the
admissibility of "out-of-court identification evidence . . .
obtained through unnecessarily suggest[ive] confrontation
procedures." Id. at 110 (emphasis added).
Although Hudson is correct to point out that the
Brathwaite Court ultimately held that "reliability is the linchpin
in determining the admissibility of identification testimony,"
Brathwaite, 432 U.S. at 114, his argument abstracts this holding
too far from its specific factual context concerning pretrial,
out-of-court identifications. Hudson has not -- and
cannot -- point to any then-existing Supreme Court case law that
would have required the MAC to find constitutional error in his
case without "extend[ing] the rationale" of the Brathwaite line of
cases to the separate factual context of a surprise, first-time,
in-court identification of a defendant by a testifying witness.
As such, we conclude that Hudson is not entitled to habeas relief
on this claim.5
5Hudson points out that the "District Court agreed with [him] that the identification was unreliable and should not have been admitted." But the District Court, reviewing Hudson's claim de novo and "assuming the Supreme Court law cited by [Hudson] applies to a first-time in[-]court identification," nonetheless "[found]
- 32 - IV.
For the foregoing reasons, the judgment of the District
Court is affirmed.
no violation of [Hudson's] due process rights" given the totality of the circumstances. Hudson v. Kelly, No. 06-cv-11755-IT, 2021 WL 4472858, at *11 (D. Mass. Sept. 30, 2021) (considering that defense counsel "did not ask to strike the testimony," that Brown's "identification was not offered to the jury as a pre-trial identification entitled to some weight because of its proximity to the time of the events in question" but rather "occurred in real time before the jury (which could take note itself of the suggestive circumstances of the identification)," and that "Brown was then subject to cross-examination that allowed the jury to determine this lack of reliability."). And, reviewing de novo ourselves, see Porter, 35 F.4th at 74, we agree that any error was harmless in view of the same facts. - 33 -