Tevlin v. Spencer

United States Court of Appeals
For the First Circuit

No. 09-1894

SCOTT TEVLIN,

Petitioner, Appellant,

v.

LUIS SPENCER, Superintendent,
Massachusetts Correctional Institution - Norfolk,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Thompson, Selya, and Dyk,* Circuit Judges.

Victoria L. Nadel for appellant.
James J. Arguin, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for
appellee.

October 8, 2010

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. In 1997, Scott Tevlin (“Tevlin”) was

convicted in a Massachusetts state court of murder in the

first-degree (felony murder), armed robbery, and assault and

battery by means of a dangerous weapon. He was sentenced to life

imprisonment without the possibility of parole for the felony

murder and a concurrent term of nine to ten years for the assault

and battery. His convictions were affirmed on direct appeal, and

postconviction relief was also denied by the Massachusetts state

courts. In 2006, Tevlin petitioned for a writ of habeas corpus in

the United States District Court for the District of Massachusetts

pursuant to 28 U.S.C. § 2254. The court denied the petition on

June 10, 2009. On appeal Tevlin argues, first, that he received

ineffective assistance of counsel due to trial counsel’s failure to

challenge or investigate certain evidence, and second, that he was

denied due process by the Commonwealth’s refusal to grant him

postconviction access to fingerprint evidence. We hold that Tevlin

has failed to establish any constitutional violation, and we

therefore affirm the denial of habeas corpus relief.

I.

In habeas cases, we presume that factual determinations

by state courts are correct. 28 U.S.C. § 2254(e)(1); Teti v.

Bender, 507 F.3d 50, 58-59 (1st Cir. 2007). In any event, the

facts as presented at trial and as set forth by the Supreme

Judicial Court of Massachusetts are not herein contested. See

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Commonwealth v. Tevlin, 741 N.E.2d 827, 830-32 (Mass. 2001). In

light of Tevlin’s convictions, those decisions correctly recited

the version of the facts at trial most favorable to the

Commonwealth. Tevlin, 741 N.E.2d at 830. Thus, we describe the

facts of this case as they appear in the decisions of the

Massachusetts courts. See Teti, 507 F.3d at 53.

On the morning of March 2, 1996, just before 7:30 a.m.,

the evidence showed that Tevlin assaulted seventy-four-year-old

Angela Lyons (“Lyons”) while attempting to steal her purse in a

Shaw’s supermarket parking lot in Brockton, Massachusetts. Lyons

resisted, and Tevlin responded by knocking her down and dragging

her across the pavement. He then stomped on her stomach. Upon

wrestling the purse free, Tevlin fled the scene in a white car.

Cecelia Peterson (“Peterson”) was an eyewitness to the

attack and assisted Lyons immediately afterward. Lyons told

Peterson that the assailant had stomped on her stomach; that she

was upset and in pain; and that she was losing sensation in her

legs.

Officer Steven Williamson (“Officer Williamson”) of the

Brockton police department responded to the scene. Lyons told him

that a young, white male had attacked her. Peterson described the

assailant as approximately twenty-five years old, five feet ten

inches tall, and 150 pounds, with black hair, a mustache, and a

goatee. Peterson also told Officer Williamson that the assailant

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escaped in a white car with the license plate number “ZPF 214.”

Another witness also described the assailant leaving in a white car

with a license plate number beginning with “214.”

At the hospital, Lyons explained to Dr. John Steinmetz

(“Dr. Steinmetz”) that a young man had tried to steal her purse and

stomped twice on her stomach. An examination revealed that Lyons’

aorta had been crushed just above her navel, and due to

calcification of cholesterol plaque in the vessel, her aorta

remained crushed, impairing blood flow to her spinal cord and lower

extremities. Her condition deteriorated, and despite surgery to

repair the damaged aorta, Lyons died on March 5, 1996. The cause

of death was complications due to blunt abdominal trauma.

In the days following the attack, Peterson worked with

State Trooper Scott Berna (“Trooper Berna”) to prepare composite

sketches of the assailant. Peterson also reviewed photographs of

possible suspects. None of the photographs was of Tevlin. Then on

March 6, 1996, police found a white Pontiac Bonneville parked

outside an apartment complex in Brockton. The car, with license

plate number “214 ZPV,” had been stolen from the owner’s home a few

days earlier, sometime on the evening of March 1 or in the early

morning of March 2. It was later identified by Peterson as the car

in which she saw the assailant escape. A fingerprint analysis was

conducted, and a fingerprint on the wiper control lever was found

to match Tevlin’s thumbprint.

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 On March 10, 1996, Trooper Berna showed Peterson a series

of eighteen photographs, one of which was a three-year-old

photograph of Tevlin, but Peterson could not make an

identification. The following day, Tevlin was arrested, and

Peterson reviewed eight more photographs, including one of Tevlin

taken that morning. Peterson still failed to make a positive

identification.

On March 12, 1996, Peterson saw Tevlin’s picture in the

newspaper. He was identified as the man arrested for the attack on

Lyons. Peterson telephoned Trooper Berna to express her concern

that the police may have arrested the wrong person, because she did

not recognize Tevlin as the assailant. On March 13, Peterson met

with Trooper Berna and asked if there were any more pictures of

Tevlin she could review. Trooper Berna provided her with about a

dozen photographs of Tevlin. She did not make, nor was she asked

to make, an identification at that time. Instead, Peterson and

Trooper Berna discussed the case, and Trooper Berna told Peterson

that Tevlin’s fingerprint had been found in the Pontiac. On March

15, 1996, Peterson called Trooper Berna and told him that she was

now confident that Tevlin was in fact the assailant. She explained

that previously she had been focused on the assailant’s grin on the

morning of the attack, and that once she removed that grin from her

mind, she realized that the police had the right man. At trial,

she identified Tevlin as the man who attacked Lyons.

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 At the time of the attack, Tevlin lived within a

five-minute walk from where the Pontiac Bonneville had been stolen.

On the morning of the attack, at about 6:00 a.m., Tevlin stopped at

the Brockton home of his “surrogate” stepfather. Tevlin stayed for

about forty-five minutes and smoked a piece of crack cocaine before

leaving with the stated intention of getting more crack. The

attack on Lyons occurred shortly before 7:30 a.m. Tevlin returned

at about 8:00 a.m., where he told Dorothea Hustus (“Hustus”), who

also lived at the apartment, that he and a friend had been involved

in robberies at Shaw’s supermarkets in the nearby towns of Easton

and Abington. (He did not mention an attack in Brockton.) He also

told Hustus that he had stolen a car. Hustus noted that Tevlin

appeared very nervous and repeatedly looked out of the windows.

When she told Tevlin to leave, he asked her to check outside for

police. Hustus then observed Tevlin walk to a white car parked on

the street, pace back and forth for about twenty minutes, and

finally get in and drive off. Twenty minutes later, however,

Tevlin was back at the apartment with the white car. He told

Hustus that he had gotten into an accident and that he needed a

place to stay because the police might be looking for him. Tevlin

left for the final time at about 10:00 a.m. The following week,

Hustus went to the Brockton police station and identified the

Pontiac Bonneville as the car Tevlin had driven to her house on the

morning of the attack on Lyons, March 2, 1996.

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 Tevlin was arrested on March 11, 1996. On the date of

his arrest, which was nine days after the attack, Tevlin was five

feet eleven inches tall, weighed 170 pounds, and had dark hair, a

mustache, and a goatee. He thus matched Peterson’s initial

description with only minor variations. After his arrest, while

incarcerated at the Plymouth County house of correction, Tevlin

admitted his involvement in the robbery and attack in question to

another inmate. This inmate later testified at the trial as to

Tevlin’s admission.

On March 25, 1996, Tevlin was indicted on four counts:

(1) murder in the first degree, in violation of Mass. Gen. Laws ch.

265, § 1; (2) armed robbery, in violation of Mass. Gen. Laws ch.

265, § 17; (3) unarmed robbery on a victim sixty years of age or

older, in violation of Mass. Gen. Laws ch. 265, § 19(a); and (4)

assault and battery by means of a dangerous weapon on a victim

sixty years of age or older, in violation of Mass. Gen. Laws ch.

265, § 15A(a).

On April 15, 1997, on the eve of trial, Tevlin’s counsel

filed a motion to suppress Peterson’s identification, but the

motion was withdrawn following a voir dire examination of Peterson.

Tevlin’s counsel explained to the trial judge that he had discussed

the motion with Tevlin and concluded as a matter of judgment not to

pursue it. Tevlin’s jury trial began on April 17, 1997, and on May

1, 1997, the jury found him guilty of first-degree murder based on

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a felony murder theory (with armed robbery as the predicate

felony), armed robbery, and assault and battery by means of a

dangerous weapon. The Massachusetts Superior Court sentenced

Tevlin to life imprisonment without the possibility of parole for

the murder, and nine to ten years on the assault and battery

conviction, to be served concurrently.

Tevlin appealed his conviction to the Supreme Judicial

Court of Massachusetts. Among his arguments on direct appeal was

that trial counsel was ineffective for failing to pursue the motion

to suppress Peterson’s identification. The Supreme Judicial Court

rejected Tevlin’s claims and affirmed his convictions on January

30, 2001. See Tevlin, 741 N.E.2d at 827.

On March 1, 2002, Tevlin filed a motion for new trial

with the Superior Court. His arguments in support included two

more ineffective assistance claims relevant to the present appeal:

failure to adequately investigate alternative medical theories for

Lyons’ cause of death, and failure to adequately challenge the

fingerprint evidence on cross-examination of the Commonwealth’s

fingerprint expert. Tevlin also filed a motion for postconviction

access to fingerprint evidence for additional testing. On October

21, 2004, the trial court denied Tevlin’s motion for postconviction

discovery of fingerprint evidence not presented at trial, holding

that Tevlin had not established a prima facie case for

postconviction relief as required by Massachusetts law. On June

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22, 2005, the court denied Tevlin’s motion for a new trial,

rejecting the ineffective assistance arguments. A single justice

of the Supreme Judicial Court denied Tevlin’s petition to appeal

the denial of his motion for a new trial, under the gatekeeper

provision of Mass. Gen. Laws ch. 278, § 33E, on February 28, 2006.

Failing to obtain relief in the Massachusetts courts,

Tevlin filed a petition for writ of habeas corpus on May 8, 2006,

in the District of Massachusetts, pursuant to 28 U.S.C. § 2254,

asserting four separate grounds for relief, only two of which are

raised on appeal here: ineffective assistance of counsel, and

denial of due process in failing to grant access to postconviction

discovery.

On June 10, 2009, without holding an evidentiary hearing,

the district court denied the petition. As to the ineffective

assistance of counsel claims, the court held that it could not

“second-guess the conclusions of the courts of the Commonwealth as

to the tactical choices made by trial counsel” and that it was

“satisfied on a review of the entire record that the conclusion

that they were tactical choices is an appropriate conclusion on

this record given the strength of the evidence against Mr. Tevlin.”

As to the Commonwealth’s denial of access to fingerprint evidence,

the district court stated that “because the Supreme Court has never

yet authorized access to fingerprint evidence on a showing like

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that here,” the district court could not authorize it in Tevlin’s

case.

Tevlin timely appealed, and the district court granted a

certificate of appealability. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253.

II.

We review the district court’s denial of habeas relief de

novo. Aspen v. Bissonnette, 480 F.3d 571, 573 (1st Cir. 2007).

Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), “the level of deference owed to a state court decision

[on federal habeas review] hinges on whether the state court ever

adjudicated the relevant claim on the merits or not.” Clements v.

Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (citing 28 U.S.C.

§ 2254(d)). If a state court has adjudicated a claim on the

merits, a federal habeas court must defer to the state court

proceedings unless the adjudication:

(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). The AEDPA standard applies, and it is

difficult to meet. This is particularly so where, as here, Tevlin

argues that there has been a departure from a very general standard

such as that set forth in Strickland v. Washington, 466 U.S. 668

-10-
(1984). However, we need not dwell on whether there was here a

decision by the Massachusetts courts that was contrary to or an

unreasonable application of clearly established Federal law, for we

conclude that there was in fact no constitutional violation.

Without a constitutional violation, of course, Tevlin cannot meet

the AEDPA standard.

In the present appeal, Tevlin argues that he received

ineffective assistance of trial counsel under three theories: (1)

failure to pursue the motion to suppress Peterson’s identification,

(2) failure to adequately investigate alternative medical theories

regarding Lyons’ cause of death, and (3) failure to adequately

challenge the fingerprint evidence. As to the first ineffective

assistance theory, the Massachusetts Supreme Judicial Court

considered Tevlin’s argument on its merits and rejected it. As to

Tevlin’s other two ineffective assistance theories, the Superior

Court also adjudicated these claims on their merits.

To succeed on a claim of ineffective assistance of

counsel, Tevlin must show both deficient performance by counsel and

resulting prejudice. Strickland, 466 U.S. at 687. In order to

satisfy the “deficient performance” prong, Tevlin must show that

his trial counsel’s representation “fell below an objective

standard of reasonableness.” Id. at 688. Review of counsel’s

performance must be deferential, and reasonableness must be

considered in light of “prevailing professional norms.” Id. at

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688-89. There is a “strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance,”

and Tevlin “must overcome the presumption that . . . the challenged

action ‘might be considered sound trial strategy.’” Id. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Thus, this

court has held that a lawyer’s performance is deficient under

Strickland “only where, given the facts known at the time,

counsel’s choice was so patently unreasonable that no competent

attorney would have made it.” Knight v. Spencer, 447 F.3d 6, 15

(1st Cir. 2006) (internal citation and quotation marks omitted).

In order to satisfy the “prejudice” prong, Tevlin must

establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Porter v. McCollum, 130 S. Ct. 447, 453 (2009) (per

curiam) (quoting Strickland, 466 U.S. at 694) (quotation marks

omitted). Although he need not show “that counsel’s deficient

conduct more likely than not altered the outcome” of his

proceeding, he must establish “a probability sufficient to

undermine confidence in [that] outcome.” Id. at 455-56 (quoting

Strickland, 466 U.S. at 693-94) (quotation marks omitted). A

defendant’s failure to satisfy one prong of the Strickland analysis

obviates the need for a court to consider the remaining prong. See

Strickland, 466 U.S. at 697.

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 Tevlin first argues that his trial counsel was

ineffective for failing to pursue the motion to suppress Peterson’s

identification, because of the unduly suggestive manner in which

the identification was procured. He contends that Trooper Berna

tainted the identification by showing Peterson numerous photographs

of Tevlin and telling her that Tevlin’s fingerprints had been found

in the white Pontiac Bonneville. In cases in which a witness was

subjected to a pretrial confrontation “so unnecessarily suggestive

and conducive to irreparable mistaken identification that [the

defendant] was denied due process of law,” the defendant may seek

to exclude the identification evidence from trial. Stovall v.

Denno, 388 U.S. 293, 301-02 (1967); see Manson v. Brathwaite, 432

U.S. 98, 109-14 (1977); Neil v. Biggers, 409 U.S. 188, 196-201

(1972); Commonwealth v. Venios, 389 N.E.2d 395, 397 (Mass. 1979).

Tevlin contends that Trooper Berna’s actions were so

suggestive that any competent counsel would have sought to suppress

Peterson’s identification of Tevlin. The Massachusetts Supreme

Judicial Court, however, held that “there was a sound tactical

basis for the decision” not to seek to suppress the identification.

Tevlin, 741 N.E.2d at 837. The court noted that “[t]he evidence

against the defendant, even without Peterson’s identification, was

extremely strong,” and as such the suppression of that

identification “would not seriously have weakened the

Commonwealth’s case.” Id. But “[p]ermitting the identification

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testimony and then attacking the strength and circumstances of the

identification provided the defense with a basis on which to attack

the police procedure.” Id. The defense would then have the

opportunity to “impeach Peterson’s identification in an effort to

develop enough question on that issue that might create a

reasonable doubt about the entire case.” Id. at 838. Tevlin’s

counsel did just that at trial: he “argued that his arrest and

prosecution were the result of a police rush to judgment in a

highly publicized murder case in which the police were under

pressure to make an arrest. Peterson’s identification, and the

police conduct that led to that identification, were used to

illustrate that rush to judgment.” Id. at 837-38. Under the

circumstances, we agree with the Supreme Judicial Court that the

choice not to seek the suppression of Peterson’s identification —

a choice that Tevlin and his trial counsel considered for a “few

months,” id. at 837 — represented a legitimate strategic decision.

As such, Tevlin’s trial counsel’s performance on this matter was

not deficient.

Tevlin next argues that his trial counsel was ineffective

for failing to investigate alternative medical theories regarding

Lyons’ cause of death. He asserts that his trial counsel should

have hired a medical expert to show that Lyons’ death may have been

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caused by something other than Tevlin’s stomping on her stomach.1

In support of his new trial motion, Tevlin provided an affidavit

from Dr. Ira Kanfer, a pathology expert contacted by his post

conviction counsel, that questioned whether Lyons had been stomped

on and suggests the possibility that Lyons could have been injured

by a fall to the ground. Tevlin alternatively suggests that the

injury might have been caused by the assailant’s dragging Lyons

across the ground rather than stomping (which in Tevlin’s view

might support a finding of not guilty of felony murder).2 The

Superior Court rejected this ineffective assistance theory. It

noted that Tevlin’s trial counsel did in fact consult a forensic

expert, and that “[a]fter discussing the medical evidence” with the

expert, counsel stated that he “decided not to contest the cause of

death at trial but to concentrate on the identification of the

perpetrator.” The court concluded that it was a “reasonable

decision” by Tevlin’s counsel “not to focus on the cause of the

victim’s death and focus on more substantial grounds of defense.”

1
Tevlin argues that a nurse’s assessment taken when Lyons
was admitted to the hospital does not show bruising around Lyons’
abdomen, but the autopsy report noted substantial bruising in that
area.
2
If Tevlin was unarmed, the Commonwealth was required to
show that Tevlin committed the unarmed robbery with “conscious
disregard for human life” in order to obtain a felony murder
conviction. Tevlin, 741 N.E.2d at 835 n.5. Tevlin theorizes that
dragging was not as malicious as stomping. On the other hand, the
theory that Tevlin committed an armed robbery depended on his use
of his sneakers to stomp the victim.

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In addition, the court found that there was little to be gained by

pursuing an alternative medical theory. In the court’s view, this

was so, first, because there was testimony that Lyons had told at

least three separate people that she had been stomped, and second,

because even if Lyons’ death was caused by a fall to the ground

instead of a stomp, such a fall could still be attributed to Tevlin

when he was fighting Lyons for her purse. We agree with at least

the first point. Trial counsel could reasonably have concluded

that nothing was to be gained by attempting to argue based on

medical evidence that the stomping had not occurred and that some

other action could have been the cause of death. This certainly

can be considered sound trial strategy based on the additional

evidence regarding the existence of a stomp, specifically Lyons’

three separate statements that she was stomped on by the assailant.

Counsel could have reasonably concluded that disputing whether a

stomping had occurred in the face of such overwhelming evidence

might harm Tevlin’s case. As the district court correctly rejected

Tevlin’s argument that his counsel should have contested whether a

stomp had occurred, we need not decide whether, assuming there had

been no stomping, Lyons’ fall could have caused her death, or

whether the fall should be attributed to Tevlin. Under the

circumstances, Tevlin’s trial counsel’s performance was not

deficient in choosing not to focus on the cause of Lyons’ death.

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 Tevlin’s third theory for his claim of ineffective

assistance of counsel is that his trial counsel failed to

adequately cross-examine the Commonwealth’s fingerprint witnesses.

At trial, State Trooper Ed O’Neill (“Trooper O’Neill”) testified

that he removed a latent fingerprint from the wiper control knob on

the driver’s side of the white Pontiac Bonneville through a process

known as “Super Glue fuming,” in which Super Glue was placed on a

heating plate inside the car to allow the glue vapors to adhere to

any latent prints. Tevlin’s trial counsel did not cross-examine

Trooper O’Neill. Lieutenant Richard Lauria (“Lieutenant Lauria”)

then testified that the print from the wiper control knob matched

Tevlin’s. He also testified that the fingerprint was a “weak

print” and that the police “got [the print] in really good shape

after working quite a bit of time on it.” On cross-examination of

Lauria, Tevlin’s trial counsel merely pointed out a labeling

mistake on one of the exhibits and did not question any of the

procedures or the conclusions reached by Lieutenant Lauria.

Tevlin argues that counsel should have cross-examined

Lieutenant Lauria with respect to Lauria’s supposed admission that

he had altered the fingerprint found in the car. The Superior

Court explicitly rejected Tevlin’s argument that Lieutenant

Lauria’s testimony suggested that there was something untoward in

the police’s handling of the fingerprint. Rather, the court found

that it was “immediately apparent” that the testimony merely

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related to how the police had used the Super Glue fuming technique

to reveal the latent fingerprint. Tevlin further asserts that any

reasonable counsel would have challenged this evidence because

Peterson testified that she observed the assailant enter the

passenger side of the getaway car, not the driver’s side where the

fingerprint was found. This point overlooks the evidence from

Hustus that Tevlin drove the car at other times.

While Tevlin’s trial counsel failed to cross-examine

Trooper O’Neill and only briefly cross-examined Lieutenant Lauria,

Tevlin has not shown a reasonable probability that more vigorous

examination would have undermined the fingerprint evidence. As

this court has observed, “[e]xperienced trial attorneys may choose

not to cross examine witnesses where the probable result is a mere

repetition and strengthening of the direct testimony. Counsel here

could have reasonably concluded that cross examination would at

best be futile and at worst self-destructive.” United States v.

Moreno Morales, 815 F.2d 725, 751 (1st Cir. 1987).

We conclude that Tevlin has therefore failed to

demonstrate the existence of ineffective assistance of counsel in

any of his three theories. Unlike the case of Wilson v. Mazzuca,

570 F.3d 490 (2d Cir. 2009), relied on by Tevlin, this is not a

situation in which trial counsel made “incomprehensible” choices,

“misinterpreted and misunderstood the law, failed to pay attention,

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acted recklessly, and did not appreciate the consequences of his

decisions.” Id. at 505-06.

III.

Tevlin appears to claim that the Commonwealth of

Massachusetts committed a pretrial Brady violation by withholding

the original fingerprint evidence. Brady v. Maryland, 373 U.S. 83

(1963). The original fingerprint was available during pretrial

discovery, but Tevlin’s trial counsel chose not to request it.

However, this argument was waived. Tevlin did not raise this issue

with the Commonwealth courts or the district court. Instead, he

confined his Brady argument to his postconviction right to gain

access to the evidence, not his pretrial right to the evidence.

Tevlin did argue both in the Massachusetts courts and the

district court that he was denied due process by the Commonwealth’s

failure to grant him postconviction access to the fingerprint

evidence — namely, the original latent fingerprint pulled from the

wiper control knob of the white Pontiac Bonneville. Only enhanced

images of the latent fingerprint were entered into evidence during

Tevlin’s criminal trial, not the original. As noted above, Tevlin

contends that the police somehow altered the fingerprint, based on

Lieutenant Lauria’s testimony that the police “got [the print] in

really good shape after working quite a bit of time on it.” Tevlin

seeks the original latent fingerprint so that additional analysis

can be performed and possibly reveal how the police altered the

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print. The Superior Court denied Tevlin’s motion for

postconviction discovery of the original fingerprint, holding that

he failed to meet his burden of establishing a prima facie case for

postconviction relief as required by Massachusetts law. A justice

of the Massachusetts Supreme Judicial Court rejected Tevlin’s due

process arguments in denying his petition to appeal the denial of

his motion for a new trial.

Tevlin argues that because the fingerprint evidence may

be exculpatory or impeaching, he has a postconviction due process

right to the evidence under the Supreme Court’s decision in Brady

v. Maryland, 373 U.S. at 83. Brady held that “the suppression by

the prosecution of evidence favorable to an accused upon request

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.” Id. at 87. The Court later held that the duty

to disclose such evidence is applicable even though there has been

no request by the accused, United States v. Agurs, 427 U.S. 97, 107

(1976), and that the duty encompasses impeachment evidence as well

as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676

(1985).

However, the Supreme Court has explicitly rejected

Brady’s applicability to postconviction proceedings. In District

Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S.

Ct. 2308 (2009), the Court noted that “[a] criminal defendant

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proved guilty after a fair trial does not have the same liberty

interests as a free man.” Id. at 2320. The Court went on to

explain:

The State accordingly has more flexibility in
deciding what procedures are needed in the context of
postconviction relief. “[W]hen a State chooses to offer
help to those seeking relief from convictions,” due
process does not “dictat[e] the exact form such
assistance must assume.” Pennsylvania v. Finley, 481
U.S. 551, 559 (1987). [A defendant’s] right to due
process is not parallel to a trial right, but rather must
be analyzed in light of the fact that he has already been
found guilty at a fair trial, and has only a limited
interest in postconviction relief. Brady is the wrong
framework.

Instead, the question is whether consideration of
[the defendant’s] claim within the framework of the
State’s procedures for postconviction relief “offends
some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental,”
or “transgresses any recognized principle of fundamental
fairness in operation.” Medina v. California, 505 U.S.
437, 446, 448 (1992) (internal quotation marks omitted)
. . . . Federal courts may upset a State’s
postconviction relief procedures only if they are
fundamentally inadequate to vindicate the substantive
rights provided.

Osborne, 129 S. Ct. at 2320 (citations omitted). It is Tevlin’s

“burden to demonstrate the inadequacy of the state-law procedures

available to him in state postconviction relief.” Id. at 2321.3

Brady is thus the “wrong framework” for analyzing

Tevlin’s due process claim relating to postconviction discovery.

3
The district court did not have the benefit of the
Supreme Court’s ruling in Osborne when it denied Tevlin’s petition,
as the district court made its ruling one week before Osborne was
decided.

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Rather, the question is whether Massachusetts postconviction

discovery procedures are “fundamentally inadequate to vindicate the

substantive rights provided.” Id. at 2320. We hold that they are

not.

Massachusetts Rule of Criminal Procedure 30 defines the

Commonwealth’s postconviction procedures. It provides that judges

have discretion to authorize postconviction discovery “[w]here

affidavits filed by the moving party . . . establish a prima facie

case for relief.” Mass. R. Crim. P. 30(c)(4). “In requesting such

discovery, the defendant must make a sufficient showing that the

discovery is reasonably likely to uncover evidence that might

warrant granting a new trial.” Commonwealth v. Daniels, 837 N.E.2d

683, 696 (Mass. 2005).

To meet the prima facie case standard for discovery
under a motion for a new trial based on newly discovered
evidence, a defendant must make specific, not speculative
or conclusory, allegations that the newly discovered
evidence would have “materially aid[ed] the defense
against the pending charges,” Commonwealth v. Tucceri,
412 Mass. 401, 405, 589 N.E.2d 1216 (1992), and that this
evidence, if explored further through discovery, could
yield evidence that might have “played an important role
in the jury’s deliberations and conclusions, even though
it is not certain that the evidence would have produced
a verdict of not guilty.” Id. at 414, 589 N.E.2d 1216.

Daniels, 837 N.E.2d at 696. Here, Tevlin did not even attempt to

satisfy this standard. In his motion for postconviction discovery

in the Massachusetts Superior Court, Tevlin included just a single

affidavit from his postconviction counsel. The affidavit sought

access to the fingerprint evidence “in light of the significant

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recent cases regarding fingerprint evidence which indicate that

fingerprints may be exculpatory even when the government has

asserted that they belonged to the defendant.” But beyond this,

the affidavit failed to set forth any facts as to how the

fingerprint evidence in this case would have “materially aid[ed]

the defense.” Id.

Tevlin argues that the affidavit requirement violates due

process because the Massachusetts procedures present a Catch-22

situation. He cannot know what the original fingerprint evidence

will reveal until he is able to examine the evidence. This narrow

view of the postconviction discovery procedures is inaccurate.

While a postconviction claim for relief must be supported by

affidavits, see Mass. R. Crim. P. 30(c)(3), (4), these affidavits

need not directly address the content of the withheld material.

Here, for example, Tevlin could have provided an affidavit stating

that he was never in the white Pontiac Bonneville and that the

fingerprint found on the wiper control knob could not have been his

print. Or he could have provided an affidavit from a fingerprint

expert stating that he reviewed the trial evidence and concluded

that the methodology employed by the Commonwealth was flawed, such

that the enlarged fingerprint evidence was unreliable and that

further testing would be likely to produce evidence favorable to

the defendant. Such affidavits could then support his allegations

that the original fingerprint evidence would have materially aided

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his defense. See Daniels, 837 N.E.2d at 696. In this case, Tevlin

simply made no effort to satisfy the Massachusetts requirements.

The Massachusetts procedure is no more restrictive, and

in fact appears to be more permissive, than the Alaska

postconviction discovery procedures authorized by the Supreme Court

in Osborne. The postconviction discovery procedure for DNA

evidence in Alaska considered by the Court in Osborne required a

defendant seeking postconviction DNA testing to show “(1) that the

conviction rested primarily on eyewitness identification evidence,

(2) that there was a demonstrable doubt concerning the defendant’s

identification as the perpetrator, and (3) that scientific testing

would likely be conclusive on this issue.” Osborne, 129 S. Ct. at

2318. While Alaska required a showing that scientific testing of

DNA evidence would likely be conclusive of a defendant’s innocence,

Massachusetts merely requires a prima facie case for relief. The

Massachusetts procedure permits postconviction discovery “even

though it is not certain that the evidence would have produced a

verdict of not guilty.” Tucceri, 589 N.E.2d at 1224.

Tevlin has thus failed to demonstrate how the

Massachusetts postconviction discovery procedures are

“fundamentally inadequate to vindicate the substantive rights

provided.” Osborne, 129 S. Ct. at 2320. We hold that the

Massachusetts procedures are not on their face unconstitutional,

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and that Tevlin has not established that their application here

violated due process.4

IV.

For these reasons, we affirm the denial of habeas corpus

relief by the district court.

AFFIRMED.

4
At oral argument, Tevlin’s counsel seemed to suggest that
the Massachusetts courts erred in applying the Massachusetts
standard. We note that “[f]ederal habeas relief cannot be granted
merely because a state court errs in its application of state law.”
Sanna v. Dipaolo, 265 F.3d 1, 11 (1st Cir. 2001); see also Puleio
v. Vose, 830 F.2d 1197, 1204 (1st Cir. 1987) (“Habeas review does
not ordinarily extend to state court rulings on the admissibility
of evidence.”).

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