United States Court of Appeals
For the First Circuit
No. 09-2322
TONY B. GASKINS,
Petitioner, Appellant,
v.
RONALD T. DUVAL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
John J. Barter for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief, for
appellee.
April 13, 2011
HOWARD, Circuit Judge. Petitioner Tony Gaskins appeals
the district court's denial of his request for habeas corpus relief
from his 1992 Massachusetts state court conviction for first degree
murder. 28 U.S.C. § 2254. He claims that his conviction was based
on coerced and perjured testimony and faulty jury instructions.
Massachusetts contends that the district court erred in failing to
dismiss the petition as untimely, but correctly decided its
substance. The statute of limitations issue presents a close
question that merits some discussion, but it is one that we
ultimately need not resolve. After careful review of the petition
and the lengthy trail of prior proceedings, we affirm the denial on
the merits.
I. Factual Background & Procedural Trail
A. Trial
We take the facts of conviction as recounted by the
Massachusetts Supreme Judicial Court ("SJC") when it affirmed
Gaskins's conviction on direct appeal, supplementing those with
other record facts consistent with the SJC's findings. Yeboah-
Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir.) cert. denied, 130 S. Ct.
639 (2009); Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006).
According to the SJC:
The jury could have found the following from
the evidence. [Raymond] Coffill and [Leo]
Womack had had a general plan in February,
1991, to rob a "drug house." On February 15,
1991, Coffill purchased cocaine from a drug
house in Lynn and shared it with Womack.
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Later that day they went to the drug house to
purchase more cocaine, but because they were
short of funds, they were unable to make a
purchase. As they were leaving, they met
[Gaskins] and Robert Reid. The four pooled
their resources, purchased cocaine, and went
to Coffill's house where they discovered that
the cocaine was of poor quality. There
followed a loosely developed plan to rob the
drug house. They returned to the drug house.
Coffill and [Gaskins] knocked on the door, had
an argument with the people inside about the
poor quality of the cocaine, but failed to
obtain any satisfaction. The four then
consulted and decided that they would try to
disrupt the business of the drug house. Two
people were allowed to make purchases without
incident. The victim then arrived alone. He
apparently made a drug purchase, and, as he
was leaving, Womack grabbed him and struck him
on the head. [Gaskins] held a knife to the
victim's body and told the victim, "Kick it
in." The victim begged that they not stab him
for a "twenty." The victim struggled and
fled, pursued by [Gaskins], Womack, and Reid
on foot and Coffill in an automobile.
Ultimately, the four joined up in the
automobile. [Gaskins] said "I stuck that
nigger. He didn't make the fence. I got him.”
[Gaskins] still had the knife. The victim
died one week later as a result of a stab
wound to his abdomen.
Commonwealth v. Gaskins, 647 N.E.2d 429, 431 (Mass. 1995) ("Gaskins
I").
Both Coffill and Womack testified at Gaskins's trial in
exchange for reduced charges and sentences. Each had murder
charges reduced to manslaughter. Id. Gaskins was convicted and
sentenced to life in prison.
-3-
B. Direct Appeal
Gaskins appealed to the SJC. He argued that: 1) the
trial judge erred in failing to order a not guilty finding; 2) the
jury was improperly instructed concerning the possibility of a
second degree murder verdict; and 3) counsel was constitutionally
ineffective both in failing to challenge the composition of the
jury pool and failing to offer certain evidence. Id. at 430. The
SJC denied Gaskins's appeal in 1995.
C. First New Trial Motion
In 1997, Gaskins filed his first motion for new trial in
state superior court. In addition to the points raised in his
direct appeal, he argued that the prosecution used perjured
testimony to convict him and inappropriately vouched for the
credibility of Womack and Coffill. He also alleged that the trial
judge provided an erroneous reasonable doubt instruction and that
he received ineffective assistance of appellate counsel. See
Commonwealth v. Gaskins, No. 91-018642, Order at 2 (Mass. Sup. Ct.
May 8, 1997). The motion was denied, with the judge ruling that
"[a]ll of the issues now raised . . . in this motion . . . have
either been previously raised and ruled upon in the prior appeal,
or have been waived." Id. The issues raised in the new trial
motion that were held to be waived were deemed so because Gaskins
had not identified them in his direct appeal. Id. (citing Mass.
R. Crim. P. 30(c)(2)). Gaskins sought leave to appeal that
-4-
decision with respect to his trial counsel's failure to challenge
the composition of the jury pool. An SJC "gatekeeper" justice
denied leave to appeal in January 1999.1
D. First Habeas Petition
Meanwhile, in July 1997, during the pendency of his state
court new trial motion, Gaskins filed a habeas petition in federal
court. The petition contained an expanded version of his claim
that his conviction was caused, in part, by Womack's perjury, and
included an affidavit from Womack asserting that he was coerced by
the prosecutor to lie on the witness stand. See Gaskins v. Duval,
89 F. Supp. 2d 139, 141 (D. Mass. 2000) ("Gaskins III").2 The
district court dismissed the petition as untimely, but we reversed,
holding that the applicable limitations period was tolled while
Gaskins's state court motion was pending. Gaskins v. Duval, 183
F.3d 8 (1st Cir. 1999) ("Gaskins II").
On remand, the district court dismissed the petition
without prejudice because it contained both exhausted claims and
the unexhausted expanded perjury claim. Gaskins III, 89 F. Supp.
2d at 142.
1
A defendant may not appeal to the SJC from the denial of
postconviction relief unless a single justice -- the "gatekeeper"
-- determines that the motion raises a "new and substantial"
question, at which point leave will be granted to appeal to the
full SJC. See Drew v. MacEachern, 620 F.3d 16, 17 (1st Cir. 2010).
2
In his earlier new trial motion, Gaskins based his claim of
perjury on Womack's allegedly inconsistent prior statements.
Gaskins III, 89 F. Supp. 2d at 141.
-5-
E. Further State Proceedings
Gaskins returned to state court after the district
court's dismissal without prejudice of his habeas petition and
filed another motion for new trial in April 2000. He asserted two
grounds relevant here: 1) prosecutorial misconduct in light of the
Womack affidavit; and 2) erroneous jury instructions which
permitted an inference of malice on less than a strong likelihood
of death. See Commonwealth v. Gaskins, No. 91-018642, Order at 4
(Mass. Sup. Ct. July 12, 2002). The Superior Court ordered an
evidentiary hearing on the prosecutorial misconduct issue and
further argument on the jury instruction claim. Id. at 6-7.
The evidentiary hearing took place in December 2002. In
an order dated February 13, 2003, the Superior Court denied the
motion with respect to the jury instruction issue. The Court
reasoned both that Gaskins had waived the jury instruction issue
because it was not addressed in his direct appeal or any post-trial
motions, and alternatively, that the argument failed substantively.
Womack did not testify at the December 2002 evidentiary
hearing, asserting his Fifth Amendment right against self-
incrimination. Somewhat ironically, he claimed before the hearing
that he was coerced into signing the very affidavit in which he
announced that he was coerced to lie at Gaskins's trial, and thus
argued that he did not waive his Fifth Amendment rights by
providing that affidavit.
-6-
As a result of Womack's refusal to testify, the superior
court, although it accepted evidence from many of the individuals
involved in preparing Womack for trial, did not reach the substance
of Gaskins's claim that Womack had essentially recanted his trial
testimony. However, based on Womack's testimony at an in camera
hearing3 limited to his Fifth Amendment claim, the court rejected
Womack's claim that he was coerced into signing the recantation
affidavit and thus held that Womack had waived his Fifth Amendment
privilege. The court concluded that "[o]n the circumstances
surrounding the preparation and signing of the affidavit . . .
Womack's testimony [was] not credible or believable." In addition,
the court stated that "on the claim of coercion in the signing of
the affidavit, Womack did not appear, and I find he was not,
truthful. In light of all the circumstances and evidence, Womack's
explanations were not plausible and I do not accept them."
Commonwealth v. Gaskins, No. 91-018642, slip op. at 4 (Mass. Sup.
Ct. Feb. 13, 2003). The superior court stayed the proceedings in
order to allow Womack to pursue an appeal of the court's Fifth
Amendment ruling. The SJC ruled against Womack, holding that he
could refuse to testify at a reconvened hearing and then appeal
from any ensuing contempt order. In re Womack, 831 N.E.2d 881
(Mass. 2005).
3
Womack was represented by counsel at the in camera hearing.
-7-
The matter returned to the same superior court judge in
2006, in order to reach the remaining merits of Gaskins's new trial
motion, which by then had been pending for more than five years.
Womack again refused to testify. Finally, in February 2008, the
judge issued a twelve-page decision denying Gaskins's new trial
motion on two grounds. See Commonwealth v. Gaskins, No. 91-18642,
Order at 11-12 (Mass. Sup. Ct. Feb. 25, 2008). First, while
referring to its 2003 order,4 the court stated that it had
previously found that "'Womack's explanations [regarding the
prosecution's alleged actions] were not plausible' and that the
court '[did] not accept them.'" (brackets in original). This was
erroneous because, as previously noted, the 2003 order addressed
Womack's credibility only with respect to whether he was coerced
into signing the recantation affidavit, and not the affidavit
relating to the issue of whether Womack was coerced to testify
falsely at Gaskins's trial. The second basis for denying the new
trial motion was the additional evidence submitted by the
Commonwealth in connection with the motion that undermined the
perjury claim, which the court summarized as follows:
In response to Gaskins' motion for a new trial
and the court's July 12, 2002, decision, the
assistant district attorney assigned to
prosecute the motion, Kevin Mitchell (ADA
4
The court gave the date of the order as "January 30, 2003."
The record reflects no order of that date, and given the context
and content, we presume the court was referring to the February 13,
2003, order.
-8-
Mitchell), filed an affidavit on May 8, 2001.
The affidavit stated that ADA Mitchell had
spoken with Womack's defense attorney, Larry
McGuire (McGuire). McGuire, after reviewing
Womack's case file, had told ADA Mitchell that
he and Womack met with then prosecutor, now
Superior Court judge, Howard Whitehead (Judge
Whitehead) and Lynn Police Lt. Dennis Flynn
shortly before Womack testified at Gaskins'
trial. McGuire also stated that this was the
only meeting that occurred between Womack and
the Commonwealth, and that neither Judge
Whitehead, nor law enforcement, made any
attempts to encourage Womack to testify
falsely.
Judge Whitehead also filed an affidavit on May
8, 2001. That affidavit stated that he,
acting for the Commonwealth, had entered into
a plea agreement with Womack on February 12,
1992, shortly before Gaskins' trial. The
agreement established that, in exchange for
certain concessions on the part of the
Commonwealth, Womack would testify,
truthfully, against Gaskins. Judge Whitehead
also stated that he memorialized the meeting
with handwritten notes. During the meeting
with the Commonwealth, Womack gave his account
of the events surrounding the murder, which
was consistent with the testimony Womack
provided at trial. [footnote omitted] Judge
Whitehead also stated that he never advised
Womack to tailor his testimony in any manner.5
In addition to the affidavits, the court also described
testimony given at the December 2002 hearing. In sum, McGuire
corroborated Mitchell's and Whitehead's affidavits when he
testified that: he and Womack met with Whitehead and Flynn shortly
before Gaskins's trial; this was the only meeting between Womack
5
The court noted that Womack's trial testimony that "[the
victim] didn't make the fence" was absent from Whitehead's account
of Womack's pre-trial de-briefing.
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and the Commonwealth; and neither Whitehead nor law enforcement
attempted to encourage Womack to testify falsely.6
Relying at least as much on the evidence provided by
McGuire, Mitchell and Whitehead as it did on its erroneous
recollection of its finding about Womack's credibility, the court
concluded that Gaskins's conviction was not based on prosecutorial
misconduct or perjured testimony and denied his new trial motion on
February 28, 2008.
Gaskins subsequently sought leave to appeal the February
2008 order to the SJC. The SJC gatekeeper justice denied the
motion, first finding that the claims related to the jury
instruction on malice, destruction of exculpatory evidence, and
ineffective assistance of trial counsel were "not new (or
substantial), and do not require consideration by the full court.
[Mass. Gen. Laws ch.] 278, § 33E." Commonwealth v. Gaskins, No.
ESCR1991-1864, slip op. at 1-2 (Mass. Aug. 7, 2008). Next, the
justice found the prosecutorial misconduct issue to be "new," and
thus addressed it. Id. Although repeating the error made by the
superior court regarding Womack's credibility, the justice also
noted that Womack's accusation of coerced perjury was countered by
the considerable evidence provided by Gaskins's defense attorney
and prosecutors. Id. at 2. Accordingly, after reviewing the
6
The testimony was described in much greater detail in the
February 2003 order.
-10-
record, the gatekeeper justice concluded that the prosecutorial
misconduct issue was not "substantial," and did not refer the
matter to the full court. Id.
F. First Habeas Petition Revisited
The federal forum did not remain dormant during the
roughly six-year period that Gaskins's state court post-appeal
motions were being resolved. In December 2003, Gaskins moved in
the district court for vacatur of the 2000 dismissal without
prejudice of his habeas petition; to restore his petition to the
docket; and to stay the petition while he exhausted his state court
remedies. The district court denied the motion and Gaskins's
subsequent motion for reconsideration, following which the court
published a memorandum decision. Gaskins v. Duval, 336 F. Supp. 2d
66 (D. Mass. 2004) ("Gaskins IV").
In reaching its decision, the district court first noted
that Gaskins had filed a "mixed petition," containing both
exhausted and unexhausted claims. Id. at 67. Historically, as the
court had done with Gaskins's petition in 2000, district courts had
provided petitioners with two alternatives: either file an amended
petition sans the unexhausted claims or return to state court to
present the unexhausted claims. Id. The court, however, also
pointed out that the one-year statute of limitations contained in
the Antiterrorism and Effective Death Penalty Act of 1996
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("AEDPA"), 28 U.S.C. § 2244(d)(2), created a predicament for
prisoners filing mixed petitions:
If a prisoner deletes unexhausted claims from
her petition, she may well be barred from
bringing those claims at a later date, because
of AEDPA's limitation on second or successive
petitions. Under 2[8] U.S.C. § 2244(b), state
prisoners may only bring such petitions in
limited circumstances subject to strict
procedural requirements. On the other hand,
if the prisoner agrees to dismissal of her
claims, she runs the risk of running afoul of
the one year limitations period.
Gaskins IV, 336 F. Supp. 2d at 68.
The district court then described the "stay and abeyance"
procedure that courts had employed to "protect habeas petitioners
from falling into this trap." Id. (citing Neverson v. Farquharson,
366 F.3d 32, 42-43 (1st Cir. 2004)). "Rather than dismissing a
mixed petition, a district court may stay proceedings while the
petitioner returns to state court to resolve his unexhausted
claims." Id. At the time of the district court's consideration,
this procedure was in its relative infancy. We had recommended the
practice, see Delaney v. Matesanz, 264 F.3d 7, 14 n.5 (1st Cir.
2001), but the Supreme Court did not explicitly approve of it --
under certain limited conditions -- until 2005. See Rhines v.
Weber, 544 U.S. 269, 276-78 (2005).
The district court noted that it did not employ the stay
and abeyance procedure at the time that it had dismissed Gaskins'
petition. Gaskins IV, 336 F. Supp. 2d at 68. The court then went
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on to construe Gaskins's motion to vacate as a motion for relief
under Fed. R. Civ. P. 60(b). It ultimately denied the motion as
violative of the Rule's requirement that the motion be filed within
a "reasonable time" because its filing was almost two and a half
years after the Supreme Court had held in Duncan v. Walker, 533
U.S. 167 (2001), that the limitations period is tolled during
state, but not federal proceedings. Gaskins IV, 336 F. Supp. 2d at
69-70.
The court then added a conciliatory coda:
Gaskins has one final option. He could file a
new habeas petition, with a request that the
Court apply the stay and abeyance procedure.
Procedurally, a new habeas petition would stop
the AEDPA limitations clock on the date of
filing, and all the time since AEDPA's
effective date that Gaskins has been
challenging his convictions in the courts of
the Commonwealth would be excluded. If
Gaskins were to finish exhausting his claims
in the state courts, without obtaining relief,
this Court would presumably then have to
determine whether Gaskins is eligible for
equitable tolling of the period during which
his original Petition was pending in the
federal courts. If equitable tolling were not
available, then Gaskins's federal habeas
claims would be time-barred.
Since the date of his original conviction,
Gaskins has promptly pursued his remedies, and
has never in any way abused the writ of habeas
corpus. He has proposed that, should the
Court allow his Motion To Reconsider, he will
provide the Court with regular updates on his
state proceedings, and will promptly pursue
his federal claims, should the state courts
deny him relief. He has consistently acted in
good faith, and there can be little doubt that
the equities favor him.
-13-
Given that the Court ideally should have
applied the stay and abeyance procedure in
2000, that Gaskins has consistently acted in
good faith, and that his liberty is at stake,
the Court would be entirely willing to permit
Gaskins to file a renewed habeas petition,
which the Court would then immediately stay
and hold in abeyance until Gaskins finishes
exhausting his administrative remedies. With
matters in their present posture, however,
this Court cannot render an advisory opinion
concerning equitable tolling, and it is
inappropriate for the Court to recharacterize
Gaskins's Motion To Vacate in this manner
without his permission, however. See Castro v.
United States, [540 U.S. 375 (2003)].
Therefore, the Court denied Gaskins's Motion
To Reconsider in its entirety, leaving his
case closed. Should Gaskins wish to file a
new habeas petition and to request that the
Court stay proceedings until he has finished
exhausting state remedies, he may do so.
Id. at 70.
In October 2004, less than one month later, Gaskins filed
the petition that is the subject of this appeal and, consistent
with the district court's suggestion, a motion to stay. The
district court stayed the petition and administratively closed the
case while Gaskins exhausted his claims in state court. See
Gaskins v. Duval, 652 F. Supp. 2d 116, 122 (D. Mass. 2009)
("Gaskins V").
As noted above, Gaskins's state court efforts ended when
the single SJC Justice denied further review on August 7, 2008.
Within a month, Gaskins successfully moved to dissolve the stay and
restore his second habeas petition to the district court docket.
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Id. In November 2008, the district court denied, without
elaboration, the respondent's motion to dismiss based on the
statute of limitations. The court denied the petition in its
entirety in September 2009. See Gaskins V. This appeal followed.
II. Discussion
A. Statute of Limitations
Before turning to the substance of Gaskins’s claims, we
first address the Commonwealth’s assertion that the district court
erred in denying its motion to dismiss based on the statute of
limitations. Several factors make this a complicated question,
including the protracted trail of this case and the district
court's lack of explanation for its ruling. Moreover, Gaskins's
conviction became final prior to AEDPA's passage and the lengthy
post-appeal proceedings straddled several important developments in
habeas jurisprudence.7
At the time the district court dismissed Gaskins's first
petition, it was operating under a legal regime that presumed that
AEDPA's tolling provision included time that petitions were pending
in federal court. That presumption was upended in 2001 when the
Supreme Court held in Duncan that the tolling provision applied
only to pendency of state proceedings. 533 U.S. at 172. As a
7
In addition to the developments already covered, recently the
Supreme Court explicitly held that equitable tolling may be applied
to a state prisoner's habeas petition in certain circumstances.
Holland v. Florida, 130 S. Ct. 2549, 2560 (2010); Drew, 620 F.3d at
23.
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result, a prisoner whose mixed petition was dismissed more than one
year after its filing to allow exhaustion might be unable to
receive federal review of his claims.
The district court was sympathetic to Gaskins's
predicament, noting that it "ideally should have applied the stay
and abeyance procedure in 2000," Gaskins IV, 336 F. Supp. 2d at 70,
and that "the equities favor" Gaskins, given both the substance of
his claims and the good faith he displayed in pursuing them. Id.
As we have recognized, "Under AEDPA, pro se petitioners8
seeking to adjudicate their constitutional claims in federal court
must satisfy several complex procedural requirements that often are
difficult for courts to decipher." Nowaczyk v. Warden, 299 F.3d
69, 82 (1st Cir. 2002) (citations omitted). Here, the district
court squarely addressed that difficulty. Although it ultimately
denied the Commonwealth's motion without explanation, it appears
likely, although we cannot be certain, that the court, in effect,
provided Gaskins with the equitable relief he requested in his
objection to the motion. See Holland, 130 S. Ct. at 2562 (holding
that petitioner seeking equitable tolling must demonstrate diligent
pursuit of his rights and that some extraordinary circumstance
prevented a timely filing).
8
Gaskins was proceeding pro se in the habeas proceedings until
approximately October 2008, during the pendency of his second
petition.
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We would ordinarily review the district court's ruling
for abuse of discretion. Riva v. Ficco, 615 F.3d 35, 40 (1st Cir.
2010). But given the case's history and the opacity of the
district court's decision, we do not resolve the thorny issue of
whether Gaskins is entitled to equitable relief because, as we
explain below, his claims fail on the merits. See Ramos-Martinez
v. United States, No. 09-1856, 2011 WL 768966, at *8 (1st Cir.
March 7, 2011) (noting that where outcome on merits is clear,
bypassing equitable tolling inquiry is permissible) (citing Lambrix
v. Singletary, 520 U.S. 518, 525 (1997)); see also 28 U.S.C. §
2254(b)(2) (allowing denial of petition on merits notwithstanding
failure to exhaust state court remedies). We turn then, to
Gaskins's substantive arguments.
B. Standard of Review
We review de novo the district court's denial of
Gaskins’s petition. Yeboah-Sefah, 556 F.3d at 56. "[T]he district
court opinion, while helpful for its reasoning, is entitled to no
deference." Healy, 453 F.3d at 25. Moreover, we may affirm the
district court's decision on any ground made manifest by the
record. Pina v. Maloney, 565 F.3d 48, 54 (1st Cir. 2009).
A federal court can grant habeas relief from a state
court conviction only if the state adjudication was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court; or if it was based
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on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d)(1)-(2); Grant v. Warden, Me. State Prison, 616 F.3d 72,
75-76 (1st Cir. 2010), cert. denied, 131 S. Ct. 948 (2011). A
state court decision is "contrary to" clearly established federal
law if it "contradicts the governing law set forth in the Supreme
Court's cases or confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court" but reaches
a different result. John v. Russo, 561 F.3d 88, 96 (1st Cir.
2009). A court "unreasonably applies" clearly established law if
it applies Supreme Court precedent to the facts of the case in an
objectively unreasonable manner, Williams v. Taylor, 529 U.S. 362,
405 (2000), such as reaching a result that is "devoid of record
support" for its conclusion. McCambridge v. Hall, 303 F.3d 24, 37
(1st Cir. 2002). A state court's factual findings are presumed to
be correct unless the petitioner rebuts the presumption with clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Torres v.
Dennehy, 615 F.3d 1, 5 (1st Cir. 2010), cert. denied, 131 S. Ct.
1038 (2011).9 This presumption applies to determinations made by
both state trial and appellate courts. Clements v. Clarke, 592
F.3d 45, 47 (1st Cir.), cert. denied, 130 S. Ct. 3475 (2010).
9
Arguing that AEDPA is unconstitutional, Gaskins asks that we
apply pre-AEDPA standards and give less deference to state court
findings. As Gaskins concedes, we rejected that argument in Evans
v. Thompson, 518 F.3d 1 (1st Cir. 2008), and remain bound by that
decision. We therefore proceed according to AEDPA.
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C. Prosecutorial Misconduct
Gaskins's prosecutorial misconduct claim is premised on
Womack's affidavit, which Gaskins claims proves that the
Commonwealth coerced Womack into falsely testifying at Gaskins's
trial in violation of Gaskins's rights under the Fifth, Sixth and
Fourteenth Amendments. See Perkins v. Russo, 586 F.3d 115, 119
(1st Cir. 2009) (explaining that prosecution's knowing use of
perjured testimony renders a conviction fundamentally unfair, and
requires setting it aside if there is any reasonable likelihood the
testimony could have affected the jury's judgment) (citing United
States v. Agurs, 427 U.S. 97, 103 (1976)); cf. Mastracchio v. Vose,
274 F.3d 590, 600-601 (1st Cir. 2001) (finding that prosecution's
failure to disclose to the defense inducements or rewards given to
witness violates defendant's constitutional rights if information
was material to guilt or punishment) (citing United States v.
Bagley, 473 U.S. 667, 678 (1985); Giglio v. United States, 405 U.S.
150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963)).
Turning first to the state courts' fact-finding, Gaskins
argues that it was unreasonable to conclude that Womack was not
coerced to testify falsely against him. As we previously noted, we
agree with Gaskins that the superior court judge deciding Gaskins’s
new trial motion, as well as the single SJC justice denying further
review and the district court, all appear to have erroneously
stated that the superior court in 2003 found Womack not credible
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with respect to the substance of his affidavit, i.e., that he was
coerced to lie at Gaskins's trial. The original "not credible"
finding in 2003 went solely to Womack's attempt to distance himself
from that affidavit. But that is not the end of the inquiry. As
the gatekeeper justice emphasized, the Superior Court conducted a
lengthy hearing, and its conclusion that Womack was not coerced was
based on more than just the credibility finding. The court also
relied on the testimony and affidavits of all the individuals
involved in Womack’s preparation and participation in Gaskins’s
trial, including Gaskins’s defense counsel, an assistant District
Attorney, and the trial prosecutor. See supra, pp. 8-10.
For his part, rather than establishing a case of
prosecutorial misconduct, Gaskins is doing little more than again
presenting the same evidence that failed to convince the state
courts. Essentially, he is asking us to replace their factual
findings with new ones. This we cannot do, for such decisions "are
exactly the type of factual determinations to which we defer, at
least short of any indication of serious error." Teti v. Bender,
507 F.3d 50, 59 (1st Cir. 2007) (citing Rice v. Collins, 546 U.S.
333, 341-42 (2006) ("Reasonable minds reviewing the record might
disagree about the prosecutor’s credibility, but on habeas review,
that does not suffice to supersede the trial court’s credibility
determination.")). Accordingly, we conclude that it was not
-20-
unreasonable for the state courts to find that Womack’s trial
testimony was not coerced.
We need go no further on the prosecutorial misconduct
claim. The foundation of that claim is the argument that Womack’s
testimony was coerced. Absent that foundation, the entire claim
crumbles.10 See DiBenedetto v. Hall, 272 F.3d 1, 7 n.1 (1st Cir.
2001) ("In some cases, the outcome of the federal claim may be
determined by the[] factual conclusions drawn by the state
court.").
D. Jury Instruction
Gaskins's second claim for habeas relief is that an
improper jury instruction on malice deprived him of a fair trial
and due process. In relevant part, the trial court instructed the
jury as follows on first degree murder:
Malice aforethought includes any unexcused
specific intent to kill or any unexcused
specific intent to do grievous bodily harm or
any unexcused intent to do any act creating a
plain and strong likelihood that death or
grievous bodily injury would follow.
Malice aforethought may be inferred if, in the
circumstances known to the defendant, a
reasonably prudent person would have known
that according to common experience there was
a plain and strong likelihood that death or
10
To the extent Gaskins claims the state court unreasonably
applied or determined federal constitutional law, he does so based
on Womack's allegedly coerced perjury. Having failed to establish
that the state court acted unreasonably in finding no coercion,
there is no subsequent legal error.
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grievous bodily injury would follow the
contemplated act.
The Commonwealth implicitly concedes, and the district
court found, that Gaskins correctly argued that the malice
instruction erroneously included the possibility of "grievous
bodily injury." See Commonwealth v. Azar, 760 N.E.2d 1224, 1231
(Mass. 2002) (holding that inference of malice is permitted only in
situations where a reasonable person would recognize a plain and
strong likelihood of death); see also Commonwealth v. Vizcarrondo,
693 N.E.2d 677, 680-81 (Mass. 1998) (rejecting "any suggestion that
we have made something less than a plain and strong likelihood of
death sufficient for proof of" malice) (citing cases).
Gaskins, however, did not object to the instruction at
trial or on direct appeal. Instead he raised the issue for the
first time in his April 2000 new trial motion. See Gaskins V, 652
F. Supp. 2d at 125. The superior court denied the new trial
request, finding that Gaskins waived the malice instruction issue
by failing to raise it in his direct appeal, or in any of his
previous new trial motions. The gatekeeper justice subsequently
denied leave to appeal, finding that "on the face of the record,"
the issue was "not new (or substantial), and do[es] not warrant
consideration by the full court."
The end result of Gaskins's failure to raise the jury
instruction issue is that the claim was procedurally defaulted.
See Simpson v. Matesanz, 175 F.3d 200, 207 (1st Cir. 1999) (quoting
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Commonwealth v. Ambers, 493 N.E.2d 837, 839 (Mass. 1986) ("An issue
is not new . . . where either is has already been addressed, or
where it could have been addressed had the defendant properly
raised it at trial or on direct review.") (internal quotation marks
omitted)). Gaskins acknowledges that the procedural default is an
"independent and adequate" state ground for the state court's
denial of relief which ordinarily precludes federal habeas review.
His only avenue of relief is to show cause for the default and
actual prejudice as a result of the alleged federal law violation
or that the failure to consider the claim on the merits will result
in a fundamental miscarriage of justice. Glacken v. Dickhaut, 585
F.3d 547, 551 (1st Cir. 2009). However, "[t]he miscarriage-of-
justice exception is narrow and applies only in extraordinary
circumstances -- circumstances in which a petitioner makes some
showing of actual innocence." Janosky v. St. Amand, 594 F.3d 39,
46 (1st Cir. 2010).
On appeal, Gaskins argues that ineffective assistance of
counsel was the prejudicial cause of the default. He did not,
however, make this argument to the district court. See Gaskins V,
652 F. Supp. 2d at 126 ("Gaskins has not set forth any grounds for
cause and prejudice."). We do not review such a claim in the
absence of a gross miscarriage of justice. Castillo v. Matesanz,
348 F.3d 1, 12 (1st Cir. 2003); see Watkins v. Ponte, 987 F.2d 27,
31 (1st Cir. 1993) (noting that appellate consideration is allowed
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only if "new ground [is] so compelling as to virtually insure
appellant's success"). We find nothing of the sort here. Gaskins
was convicted of both premeditated murder -- which involved the
disputed malice charge -- and felony murder, based on the fact that
he caused a death during the commission of a felony subject to a
sentence of life imprisonment, as is armed robbery. Gaskins I, 647
N.E.2d at 812. As the evidence undoubtedly supported the felony
murder verdict, id. at 813, an objection to the error in the malice
instruction would not have "virtually insure[d] appellant's
success." Watkins, 987 F.2d at 31.11 Accordingly, we do not
examine Gaskins's cause-and-prejudice claim any further, and turn
to his actual innocence plaint.
Simply put, our rejection of Gaskins' claim that Womack's
testimony was coerced perjury foretells the result here. To
succeed on his actual innocence claim, Gaskins "must establish
that, in light of new evidence, it is more likely than not that no
reasonable juror would have found [him] guilty beyond a reasonable
doubt." Barreto-Barreto v. United States, 551 F.3d 95, 102 (1st
Cir. 2008) (quoting House v. Bell, 547 U.S. 518, 536-37 (2006))
(internal quotation marks omitted). Moreover, "actual innocence"
11
To the extent that Gaskins now argues that the felony murder
instruction was defective, we note that this argument has never
been raised before. The SJC found that while the instruction
reflected various tensions in Massachusetts law, the instruction
was "not wrong." Gaskins I, 647 N.E.2d at 813. Gaskins has
provided us with no basis upon which to diverge from that
conclusion.
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means "factual innocence, not mere legal sufficiency." Id. (citing
Bousley v. United States, 523 U.S. 614, 623 (1998)). Here, Gaskins
offers nothing that tends to demonstrate his actual innocence
beyond the failed claim regarding Womack's testimony and an attempt
to recast facts already supportably found in the state court
proceedings. Accordingly, he has failed to meet his heavy burden
of showing his actual innocence.
III. Conclusion
The judgment of the district court denying Gaskins's
petition is AFFIRMED.
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