Jackson v. Marshall

United States Court of Appeals
For the First Circuit

No. 15-2519

DAVID JACKSON,

Petitioner, Appellant,

v.

JOHN MARSHALL,

Respondent, Appellee.

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

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

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

Alan J. Black for appellant.
Susanne G. Reardon, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Maura Healey, Attorney General
of Massachusetts, was on brief, for appellee.

July 19, 2017
 KAYATTA, Circuit Judge. David Jackson was convicted of

first degree murder in Massachusetts Superior Court. The

Massachusetts Supreme Judicial Court ("SJC") affirmed his

conviction and rejected his collateral challenges. In turn, the

United States District Court for the District of Massachusetts

denied his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. Jackson now appeals, reasserting that his trial was

unconstitutionally unfair because the Commonwealth failed to turn

over what he views as undisputable evidence that the Commonwealth's

chief witness was given inducements in exchange for favorable

testimony and because the Commonwealth suborned the witness's

perjurious testimony to the contrary. For the following reasons,

we find that Jackson has failed to meet the burden imposed on him

under § 2254. We therefore affirm.

I. Background1

Jackson's conviction arose out of a robbery and fatal

shooting that occurred in April 1990 in an apartment complex in

Boston. No physical evidence tied Jackson to the crime. But three

months after the crime was perpetrated, the Commonwealth's chief

witness, Steven Olbinsky, gave two statements describing the event

to the police. In those statements, and then almost three years

1
We present an overview of the facts taken from the background
summary given by the SJC. See Scoggins v. Hall, 765 F.3d 53, 54
(1st Cir. 2014).

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later at trial, he reported that on the night of the crime, a man

named Mark James asked him where to go to purchase drugs; that

Olbinsky led James, Jackson, and another unidentified man to the

apartment complex; that Jackson drew a shotgun from his vehicle;

that Jackson then asked which of the units in the building was the

drug dealer's residence; that Olbinsky told Jackson the wrong unit

because Olbinsky was frightened; and that Olbinsky departed the

scene as Jackson, wearing a trench coat and wielding the weapon,

approached the building with James.2 No one else specifically

placed Jackson at the scene of the crime. Other witnesses, though,

testified that two men, one in a mask and long jacket and carrying

a shotgun, broke into the unit to which Olbinsky had directed

Jackson, and were redirected by occupants of that unit to the unit

of a known drug dealer. See Commonwealth v. Jackson (Jackson I),

702 N.E.2d 1158, 1160–61 (Mass. 1998). The two men then broke

into the latter unit, where one of them fired the shotgun, killing

an inhabitant. Another witness testified that later that evening,

Jackson and James arrived at another apartment. Jackson was

described as wearing a long jacket and carrying a shotgun, jewelry,

2 Jackson does not dispute this description of Olbinsky's
trial testimony. Nor does he challenge the SJC's conclusion that
"Olbinsky had given consistent accounts of the incident since July,
1990," the date of his first statement to the police. Commonwealth
v. Jackson, 702 N.E.2d 1158, 1161 (Mass. 1998). Indeed, in his
reply brief, Jackson recognizes that Olbinsky's "story never
changed."

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money, and cocaine. The witness testified that Jackson disclosed

that he and James had committed a robbery, and that the shotgun

discharged accidentally as they were leaving. Id. at 1161.

At trial, the prosecutor stated that "the

Commonwealth . . . is offering nothing to Mr. Olbinsky for his

testimony. There's been no rewards, there's been no promises,

there's been no inducements, no offers for his testimony. If there

were, you'd know about it." Olbinsky also testified that he did

not receive any inducements for his testimony. See id. In closing

argument, in response to Jackson's counsel's suggestion that it

was unlikely that Olbinsky was testifying without some kind of

quid pro quo, the prosecutor countered by saying that Olbinsky,

who had in fact been indicted with Jackson on one count of first

degree murder, was "on trial" for the same offense. The prosecutor

told the jury, "I've got the case and if he got a deal, you would

have known about it. Let me repeat that. You would have known

about it."

As Jackson knew, however, Olbinsky was not literally "on

trial."3 In fact, his case never left the starting gate. Instead,

after Olbinsky's attorney filed a motion to dismiss the indictment

for lack of sufficient evidence, the trial court continued his

case seven separate times. The Commonwealth never opposed

3Jackson makes no contention that the prosecutor's
misstatement entitles him to habeas relief.

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Olbinsky's motion to dismiss the indictment, and two weeks after

Jackson's trial concluded, the motion was granted.

Convicted on April 16, 1993, Jackson was sentenced to

life in prison. He took a direct appeal to the SJC and moved for

a new trial pursuant to Rule 30 of the Massachusetts Rules of

Criminal Procedure. Among other things, he argued that "the

prosecutor impermissibly bolstered the credibility" of Olbinsky

"by misrepresenting to the jury that no deal had been made in

exchange for Olbinsky's testimony." Id. This claim was "actually

two separate claims," first, "that the prosecutor stated that no

inducement had been offered for Olbinsky's testimony and that this

was false," and second, "that the prosecutor concealed the fact

that the Commonwealth did not intend to prosecute Olbinsky." Id.

As to the first claim, the SJC found there was insufficient

evidence to find the prosecutor's statement false. Id. As to the

second, the SJC found that "even if true, [concealing that the

Commonwealth did not intend to prosecute Olbinsky] would not have

served to bolster [his] credibility." Id. Finding none of

Jackson's arguments convincing, the SJC affirmed his conviction

and sentence and declined to grant collateral relief. Id. at 1166–

67.

Jackson unsuccessfully pursued a petition for a writ of

habeas corpus in the United States District Court for the District

of Massachusetts in 1999. In 2002, he filed a second Rule 30

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motion in state court. In this motion, he claimed to have

discovered new evidence that Olbinsky testified subject to

inducements. The new evidence consisted of a bail agreement

between the Commonwealth and Olbinsky, which Jackson said he did

not know existed until he made a public records request in July

2002. The agreement, entered on the public docket in Olbinsky's

case almost a year before Jackson was tried, provided that Olbinsky

would be subject to electronic monitoring and a curfew while out

on bail, which Olbinsky had posted three weeks prior, once the

trial judge in his case reduced his bail from $25,000 to $5000

cash.

Jackson's motion was denied, and a single justice of the

SJC denied leave to appeal that denial on October 23, 2003. See

Mass. Gen. Laws ch. 278, § 33E. In the denial, the gatekeeper

justice noted that the bail agreement to which Jackson referred

was readily available long before his trial; the agreement merely

provided for electronic monitoring; it did not "shed[] light on

what convinced the judge to reduce Olbinsky's bail" or "what

position the prosecutor took on that issue at that time"; and it

contained "nothing to suggest that [Olbinsky] had anything to fear

in connection with the terms of his bail that would have caused

him to testify in a manner to please the prosecutor." In any

event, said the gatekeeper justice, "defendant's suggestion that

better impeachment of Olbinsky would have accomplished something

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meaningful for the defense [was] unpersuasive" because Olbinsky's

trial testimony matched statements he gave to police shortly after

the crime was committed and long before his arrest, and because it

was corroborated by other testimonial evidence.

In May 2004, Jackson moved pursuant to Federal Rule of

Civil Procedure 60 for relief from the judgment denying his habeas

petition. In this motion, Jackson pointed to the bail agreement

as evidence that Olbinsky was incentivized to testify falsely

against him. Jackson also claimed that "documents from a criminal

trial of Mr. Olbinsky in Oregon suggest[ed] that Mr. Olbinsky's

arrest in Massachusetts in connection with [Jackson's] state court

trial was intended to lead to an implicit agreement between Mr.

Olbinsky and the prosecutor." The district court found that

Jackson "potentially [had] a meritorious claim and that the

government's alleged hiding of this evidence, if true, would

constitute extraordinary circumstances beyond the petitioner's

control." Jackson was therefore granted leave under Rule 60(b)(6)

to move for an evidentiary hearing.

In his subsequent motion for an evidentiary hearing,

Jackson explained the Oregon evidence. Apparently, Olbinsky

absconded to Oregon a few months after the shooting. On March 13,

1992, he was indicted with Jackson on a charge of first degree

murder. Oregon police arrested Olbinsky pursuant to the

Massachusetts warrant, and he was extradited to Massachusetts on

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April 16, 1992. Searching his home in an unrelated drug

investigation, Oregon police found a quarter-pound of

methamphetamine, and Olbinsky was indicted on drug charges in

Oregon on June 23, 1992. An Oregon warrant for his arrest issued

and he was charged with two counts of manufacturing or delivering

methamphetamine (a Class B felony under Oregon law) and one count

of possession of methamphetamine (a Class C felony). Olbinsky

entered into the bail agreement with Massachusetts prosecutors

that same day, and his attorney filed the motion to dismiss his

murder indictment for lack of evidence.

Three days later, at the urging of an assistant district

attorney in Massachusetts, an Oregon prosecutor requested

Olbinsky's Oregon arrest warrant be recalled. The Oregon

prosecutor's notes stated that "we're trying to work [with]

prosecutors in Boston to treat [Olbinsky] nicely, as he's a

material witness in a murder case there." In a tape-recorded

proceeding in Oregon, a prosecutor stated: "Because of the

Massachusetts prosecutor's need to have this defendant as a witness

in the homicide case, we had agreed to have the defendant released,

take off our warrant on this offense so that this defendant could

be released from custody back in Massachusetts." In June 1996,

long after Jackson was tried and convicted, Olbinsky pled no

contest and was convicted on the possession charge, and the

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manufacturing/delivering charges were dismissed. He was sentenced

only to a term of probation.

The district court denied Jackson's request for an

evidentiary hearing but found that Jackson had shown good cause to

be permitted to take discovery. See Jackson v. Marshall (Jackson

II), 500 F. Supp. 2d 1, 6 (D. Mass. 2007). Jackson was allowed to

propound discovery of "all documents of whatever name and nature"

evidencing "promises, rewards, and inducements given to Olbinsky

or on his behalf, including all actions taken in connection with

the Oregon proceedings." Id. He was also given permission to

take two seven-hour depositions of the two Massachusetts

prosecutors who had worked the case.

After conducting the allowed discovery, Jackson returned

to the district court. Along with the evidence earlier presented,

he submitted his attorney's affidavit describing her conversation

in March 2007 with Olbinsky's Massachusetts defense attorney, who

she averred stated that Olbinsky "was never anything more than a

material witness and that the prosecutor had charged Olbinsky with

murder in the first degree because he did not believe that out-

of-state authorities would pay attention to a material witness

warrant." Jackson v. Marshall (Jackson III), 634 F. Supp. 2d 146,

150–51 (D. Mass. 2009). Jackson also submitted the transcripts of

the two depositions, which he said revealed "little if anything

more than what [he] learned through independent means," because

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one of the prosecutors "had only a 'vague memory' of the case, and

could not explain how Olbinsky came to be released on bail or why

the Commonwealth did not oppose his motion to dismiss the

indictment against him," and the other prosecutor "was unaware

that Massachusetts prosecutors had asked the Oregon authorities to

treat Olbinsky 'nicely,' and could not remember how Olbinsky 'ended

up in court.'" Id. at 153.

Because the SJC gatekeeper justice determined that the

bail agreement was "readily discoverable" at the time of Jackson's

trial, id. at 160, the district court found that Jackson's claim

concerning the bail agreement--i.e., that under Brady v. Maryland,

373 U.S. 83, 87 (1963), prosecutors should have informed Jackson

of the agreement so he could use it to impeach Olbinsky--was

procedurally defaulted. Jackson III, 634 F. Supp. 2d at 159. The

district court found no excusable cause for the default, no actual

prejudice, and no potential for a fundamental miscarriage of

justice, and it therefore denied habeas relief. Id. at 159–62.

The district court also found that Jackson failed to give the state

courts the opportunity to consider his claim that Brady required

the prosecutors to disclose their interventions in Olbinsky's

Oregon case. Id. at 156. As to his claim that prosecutors violated

his due process rights by supposedly misrepresenting to the jury

(and allowing Olbinsky to misrepresent to the jury) that Olbinsky,

"not sheltered by any deal, faced murder charges for involvement

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in the same crime," the district court found that the claim had

been exhausted in the state courts and the SJC had decided its

merits, so it was eligible for habeas review under 28 U.S.C.

§ 2254. Id. at 162–63. With one nondefaulted claim exhausted and

the other unexhausted, Jackson's petition was stayed. Id. at 163.

Jackson returned to state court and filed a third Rule 30

motion to exhaust his claim that the Commonwealth violated his due

process rights by failing to disclose its intervention in

Olbinsky's Oregon case. The state court denied Jackson's motion,

but a single justice of the SJC granted Jackson's gatekeeper

petition for leave to appeal. The SJC affirmed in a reasoned

decision on the merits. See Commonwealth v. Jackson (Jackson IV),

9 N.E.3d 844, 845–46, 849–50 (Mass. 2014). Jackson came back to

federal court once more, and the district court rejected both of

his remaining claims. See Jackson v. Marshall (Jackson V), 148 F.

Supp. 3d 152, 156–57 (D. Mass. 2015). His renewed request for an

evidentiary hearing under 28 U.S.C. § 2254(e) was also denied.

Id. at 157. This timely appeal followed.

II. Discussion

A.

Under Brady, "the suppression by the prosecution of

evidence favorable to an accused . . . violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."

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373 U.S. at 87. The duty to disclose extends to impeachment

evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985).

Jackson contends that the prosecution violated Brady and its

progeny by failing to disclose either its intervention in

Olbinsky's Oregon case or the purported fact that the Commonwealth

did not actually plan to pursue the first degree murder charge

against Olbinsky. Jackson also contends that the prosecutor

violated his constitutional rights by allowing Olbinsky to testify

dishonestly that he received no inducements for his testimony and

by repeatedly representing to the jury that Olbinsky was not

testifying subject to a deal or agreement.4 The district court,

whose decision we review de novo, see Moore v. Dickhaut, 842 F.3d

97, 99 (1st Cir. 2016) (citing Teti v. Bender, 507 F.3d 50, 56

(1st Cir. 2007)), determined that Jackson's claims were exhausted

in the state court, the state court adjudicated them on the merits,

4 In addition, Jackson argues that the district court erred
in determining that he procedurally defaulted his claim that
Massachusetts prosecutors violated Brady by failing to disclose
Olbinsky's favorable bail agreement. Jackson does not contest,
however, the district court's conclusion that the facts underlying
this claim were available to him at trial. He instead offers an
undeveloped argument that procedural-default rules should not
apply to him because his post-trial motion was made pro se. This
argument is waived, see Abrante v. St. Amand, 595 F.3d 11, 19 (1st
Cir. 2010) (citing United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)), and we are unpersuaded that the district court erred
in finding that Jackson procedurally defaulted his Brady challenge
based on the bail agreement.

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and the state court's decision did not warrant habeas relief under

either 28 U.S.C. § 2254(d)(1) or 28 U.S.C. § 2254(d)(2).

Jackson urges us to review the state court rulings de

novo. But under the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), 28 U.S.C. § 2254, we are typically required to

accord substantial deference to a state court's decision on the

merits. With respect to "any claim that was adjudicated on the

merits in State court proceedings," id. § 2254(d), AEDPA permits

us to grant a habeas petition only if the state court's decision

"was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States," Williams v. Taylor, 529 U.S. 362, 376 (2000)

(opinion of Stevens, J.) (quoting 28 U.S.C. § 2254(d)(1)), or the

decision "was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding,"

28 U.S.C. § 2254(d)(2). Only when a petitioner's claims are

exhausted in state court but the state court fails to consider

them on the merits or resolve them on adequate and independent

state law grounds do we review them de novo. See Jenkins v.

Bergeron, 824 F.3d 148, 152 (1st Cir. 2016) (quoting Zuluaga v.

Spencer, 585 F.3d 27, 30 (1st Cir. 2009)).

Jackson first argues that the SJC did not decide his

challenges on their merits because the court did not directly

address his argument that the suppressed evidence demonstrates

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that the Commonwealth suborned Olbinsky's perjury and therefore

requires a new trial based on the lower materiality threshold

described in United States v. Agurs, 427 U.S. 97, 103 & n.9 (1976)

(citing Mooney v. Holohan, 294 U.S. 103, 112 (1935), and Giglio v.

United States, 405 U.S. 150, 153–54 (1972)). This argument

misunderstands what an adjudication "on the merits" for AEDPA

purposes entails. A state court does not fail to adjudicate a

claim on the merits if it assesses the petitioner's claim but

applies a legal standard other than the standard petitioner

suggests. Cf. Lyons v. Brady, 666 F.3d 51, 54 (1st Cir. 2012)

(articulating a presumption that, absent any contrary indication,

a state court decision has adjudicated a claim on the merits).

Here there is no dispute that the SJC did evaluate, in a reasoned

decision on Jackson's third motion for a new trial in 2014, whether

Jackson received an unfair trial due to the Commonwealth's failure

to disclose the prosecution's interventions in Oregon or the

likelihood that Olbinsky's murder charge would be dismissed. See

Jackson IV, 9 N.E. 3d at 845–50. These actions and Olbinsky's

lenient bail agreement are what Jackson claims demonstrate that

Olbinsky testified subject to inducements and lied under oath when

he claimed he received none. But as we will explain further below,

in determining that no inducements were given, the SJC necessarily

found that the prosecution did not suborn perjury. The SJC's

decision not to apply the materiality standard described in Agurs

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was not a refusal to consider the merits of Jackson's claims, but

was rather a choice to apply a different materiality standard based

on the facts in the record as the SJC understood them. The question

of whether the SJC applied the correct materiality standard when

evaluating these claims is one that we review through the lens of

AEDPA deference. See Mastracchio v. Vose, 274 F.3d 590, 604 (1st

Cir. 2001) (citing Agurs, 427 U.S. at 103).

Jackson next insists that these claims should be granted

de novo review because the SJC did not adjudicate them with a full

grasp of the record. He contends that because "the prosecution

did not disclose its deals with Olbinsky until long after the

appeal on [Jackson's] motion for new trial, the SJC rendered its

opinion on the clearly erroneous premise that there were no

undisclosed promises, rewards [or] inducements." Therefore, he

says, we should find that the Brady materials in this case

"surfaced for the first time during federal proceedings" and

therefore merit de novo review. Monroe v. Angelone, 323 F.3d 286,

297–98 (4th Cir. 2003) (citing Rojem v. Gibson, 245 F.3d 1130,

1140 (10th Cir. 2001), and Killian v. Poole, 282 F.3d 1204, 1208

(9th Cir. 2002)).

It is literally true that some of the evidence Jackson

relies upon in support of his petition did first surface during

federal habeas proceedings. But all of that evidence was

eventually presented to the SJC in the course of its collateral

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review. Furthermore, the record before us does not support

Jackson's claim that the SJC's decision was issued before the

prosecution admitted it made "deals with Olbinsky." The

Commonwealth's position has always been, and continues to be, that

no deal was ever struck with Olbinsky. Thus, unlike cases in which

a petitioner clears the hurdle imposed by 28 U.S.C. § 2254(d) and

adduces new evidence on habeas review, see Monroe, 323 F.3d at

297; Rojem, 245 F.3d at 1140; Killian, 282 F.3d at 1208, we are

constrained to the record presented to the state court, and we

must defer to the state court's merits decision on that record.5

B.

We therefore move to the central question under AEDPA:

whether the SJC's decision was contrary to clearly established

5 Nor, finally, do we find cause to abandon this conclusion
based on Jackson's claim that the SJC did not actually review all
of the evidence presented to it. Jackson argues that this is a
necessary inference because the SJC never mentioned the Oregon
prosecutor's notes or the tape recording of Olbinsky's Oregon
proceedings. But contrary to Jackson's assertions in his briefs
and at oral argument, the SJC expressly referenced the prosecutor's
notes. See Jackson IV, 9 N.E.3d at 846 ("The evidence include[s]
a notation memorializing the basis for recalling [Olbinsky's
Oregon] warrant: '[e]vidently we're trying to work w[ith]
prosecutors in Boston to treat this [defendant] nicely, as he's a
material witness in a murder case there.'" (first two alterations
added)). And although not explicit, the SJC's reference to
"[a]dditional evidence suggest[ing] the possibility that, after
the defendant's trial, Olbinsky's cooperation with Massachusetts
authorities may have been a factor in his receipt of lenient
treatment in Oregon," id., is consistent with the notion that the
SJC did, in fact, consider the tape recording.

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Supreme Court precedent or was based on a clearly erroneous view

of the factual record. See 28 U.S.C. § 2254(d).

Jackson does not mount a real challenge on the latter

front. The SJC found the following facts, none of which Jackson

seriously disputes: (1) Olbinsky gave materially identical

accounts of the robbery before and after the dates on which

inducements were allegedly given, see Jackson IV, 9 N.E.3d at 848;

(2) defense counsel impeached Olbinsky on other bases, including

his indictment on the same murder charge as Jackson, see id. at

846; and (3) other witnesses gave testimony with details that

matched Olbinsky's account, see id. at 850. Jackson contends that

the SJC should not have placed any weight on Olbinsky's matching

early accounts, given a few months after the murder, because

Olbinsky was under investigation or under indictment for other

crimes at the time he gave them. But Jackson does not elaborate

on this contention or explain what those crimes and possible

charges were, how they are relevant, whether police or prosecutors

offered inducements for Olbinsky's cooperation at the time, or

what (if any) evidence Jackson has or believes exists in support

of any of these details.

Jackson also protests that the SJC should not have

credited the accounts of other witnesses whose highly

incriminating testimonies included details that matched

Olbinsky's, because those witnesses were unreliable.

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Specifically, he points out that the only people who testified to

witnessing the crime could not identify him, and the three

witnesses who claimed to see him after the crime wearing a trench

coat and carrying a shotgun and loot were drug users and addicts,

two of whom had criminal records and two of whom admitted they had

used cocaine on the date of the crime. Jackson III, 634 F. Supp.

2d at 161–62 n.9. But while Jackson cross-examined those witnesses

based on their criminal histories and drug use, he has never

developed an argument that their testimonies should have been

entirely excluded. It was thus the jury's prerogative to gauge

the credibility of the witnesses, and it is our duty to "resolve[]

all credibility issues in favor of the verdict." Morgan v.

Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012) (alteration in original)

(quoting United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995)).

On this record, the SJC determined that Jackson was not

entitled to a new trial because there was not a "substantial risk

that the jury would have reached a different conclusion if the

evidence had been admitted at trial," Jackson IV, 9 N.E.3d at 847

(quoting Commonwealth v. Tucceri, 589 N.E.2d 1216, 1223 (Mass.

1992)), so the undisclosed evidence did not "cast[] real doubt on

the justice of [Jackson's] conviction," id. (quoting Commonwealth

v. Grace, 491 N.E.2d 246, 248 (Mass. 1986)). This analysis is

akin to the materiality analysis set forth in one line of Supreme

Court cases under Brady, which provides that "evidence is material

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'if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.'" Strickler v. Greene, 527 U.S. 263, 280 (1999)

(quoting Bagley, 473 U.S. at 682); see Smith v. Cain, 565 U.S. 73,

75 (2012). In fact, the SJC views its standard under Tucceri as

more favorable to petitioners than the prejudice standard imposed

under Brady, see McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir.

2002), so by finding that the undisclosed evidence did not satisfy

the lesser standard of Tucceri, the SJC found, a fortiori, that

Jackson was not sufficiently prejudiced for his trial to be deemed

unconstitutional under Brady, see Norton v. Spencer, 351 F.3d 1,

5 (1st Cir. 2003). That finding was not clearly erroneous.

Jackson's rejoinder is that the SJC should have applied

a different materiality standard because he demonstrated that the

prosecutor suborned perjury. Noting that "a prosecutor's knowing

inducement of perjury is treated more harshly than a failure, which

could be inadvertent, to disclose exculpatory evidence," Perkins

v. Russo, 586 F.3d 115, 119 (1st Cir. 2009), Jackson insists that

his is the case recognized in Agurs in which "the undisclosed

evidence demonstrates that the prosecution's case includes

perjured testimony and that the prosecution knew, or should have

known, of the perjury," 427 U.S. at 103. He therefore argues that

the SJC should have applied a "strict standard of materiality."

Id. at 103–04. "[W]hen a prosecutor knowingly uses perjured

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testimony, 'a conviction . . . is fundamentally unfair, and must

be set aside if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury.'" Perkins,

586 F.3d at 119 (alteration in original) (quoting Agurs, 427 U.S.

at 103). This, says Jackson, is a different and far more

petitioner-friendly prejudice standard that the SJC neglected to

apply. In effect, Jackson contends that this case is like

Mastracchio, in which we found a state supreme court contravened

clearly established Supreme Court precedent when it applied the

higher materiality standard applicable in exculpatory-evidence

Brady cases instead of the lower standard applicable when a witness

has committed perjury about which the prosecution knew or should

have known. Mastracchio, 274 F.3d at 604.

Unlike Mastracchio, however, this case presents us with

a factual record from which the SJC reasonably, if implicitly,

concluded that Olbinsky did not perjure himself in denying receipt

of prosecutorial inducements. The SJC noted that "Olbinsky . . .

testified that he had received no inducements for his testimony."

Jackson IV, 9 N.E.3d at 846. It then concluded:

[E]ven assuming that the Commonwealth
requested that Oregon withdraw its warrant so
that Olbinsky could remain free on bail in
Massachusetts and that, at some point after
the defendant's trial, it communicated to
Oregon that Olbinsky had given helpful
testimony at the defendant's trial, there is
no evidence demonstrating that the

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 Commonwealth made these efforts to induce
Olbinsky's cooperation.

Id. at 848. This is a reasonable interpretation of the record.

Neither police officers nor Massachusetts prosecutors, when

interviewed and deposed, recalled making any promises whatsoever

to Olbinsky. To the contrary, the officers involved swore

affidavits stating that they were certain they offered Olbinsky no

inducements. And the Oregon prosecutor's notes and the tape of

the Oregon proceedings indicated that Oregon officials sought to

be "nice" to Olbinsky and release him on bail in Massachusetts,

but this is at least as indicative, if not more, of Oregon's

interest in cooperating with Massachusetts in its effort to

prosecute a significant violent crime as it is of inducement.

By reasonably finding that the record lacked evidence

supporting a claim that the Commonwealth interceded in the Oregon

proceedings and otherwise treated Olbinsky nicely as consideration

for a deal to deliver favorable testimony, the SJC necessarily

determined that Olbinsky did not perjure himself by representing

to the jury that he was not testifying in exchange for inducements.

The SJC therefore did not depart from clearly established Supreme

Court precedent when it applied the materiality standard provided

in Tucceri.

Second, Jackson contends that the SJC misapplied Brady

and its progeny because the facts in this case required the SJC to

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find that failing to disclose the Commonwealth's intervention in

Olbinsky's pending case in Oregon--evidenced by the Oregon

prosecutor's notes, the tape of the Oregon proceedings, and the

fact that Olbinsky ultimately escaped with a slap on the wrist for

a serious drug crime--prejudiced Jackson and rendered his trial

unfair. But "[w]e do not . . . automatically require a new trial

whenever a combing of the prosecutors' files after the trial has

disclosed evidence possibly useful to the defense but not likely

to have changed the verdict." United States v. Dumas, 207 F.3d

11, 15 (1st Cir. 2000) (second alteration in original) (quoting

Giglio, 405 U.S. at 154); see United States v. Flores-Rivera, 787

F.3d 1, 17 (1st Cir. 2015). And that is precisely what the SJC

reasonably found this evidence to be, in light of the fact that

Olbinsky's account of the crime did not change between the time he

first contacted the authorities and the time he allegedly received

favorable treatment for his testimony. Jackson IV, 9 N.E.3d at

848 (citing Commonwealth v. LaVelle, 605 N.E.2d 852, 857 (Mass.

1993)). That finding was not contrary to, and did not involve an

unreasonable application of, clearly established Supreme Court

precedent. See Perkins, 586 F.3d at 119 (citing 28 U.S.C.

§ 2254(d)(1)).

Finally, Jackson argues that the evidence clearly shows

that the Commonwealth never intended to prosecute Olbinsky for

first degree murder. Addressing this argument calls for defining

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precisely what the argument is. Jackson learned that after his

trial the case against Olbinsky was dismissed without serious

opposition by the government. Nothing in Brady, though, requires

prosecutors to do the impossible: to disclose future events that

have not yet occurred. So Jackson must be arguing that the new

information about what the government did after trial implies other

information that existed prior to or during trial, yet was itself

not disclosed.

Were that the case--that is to say, were it true that

there existed material exculpatory or impeaching information

before or during trial that was not disclosed--Jackson would have

something to talk about. All he has, though, is Olbinsky's bail

agreement and his surmise and speculation that there was a deal

with Olbinsky to later drop the charge. This surmise and

speculation was enough to get Jackson discovery and a return trip

to the SJC. Nothing in this record, though, leads us to conclude

that the Massachusetts courts erred in remaining unconvinced that

Olbinsky testified subject to a deal with prosecutors. And if

there was no deal, then there was nothing about a deal to disclose.

Nor can Jackson say that he should have nevertheless been able to

try out this "implied deal theory" on the jury. As we have already

noted, the implication arises from a post-trial occurrence that

obviously could not have been disclosed to jurors.

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 So, too, goes Jackson's alternative theory that the

post-trial dismissal of the murder charge against Olbinsky

suggests that, before or during Jackson's trial, prosecutors had

no intention to press the pending charge against Olbinsky. This

theory fails unless, for starters, it was unreasonable for the SJC

not to find that such an intent existed. The record evidence does

not compel that conclusion. Moreover, Jackson points us to no

clearly established federal law requiring prosecutors to disclose

their unilaterally held, present intentions for future dealings

with witnesses in a case.

To the extent Jackson instead claims that Olbinsky faced

a bona fide murder charge but knew that it was likely to be

dismissed if he cooperated with prosecutors, Jackson's counsel had

all he needed at the trial to make that argument, and did so. Even

after developing the record through the course of direct and

collateral review, only post-hoc, speculative inferences support

Jackson's claim that a deal between Olbinsky and the Commonwealth

existed. Nothing in this record leads us to conclude that the

Massachusetts courts erred in remaining unconvinced that there was

a deal with Olbinsky. The SJC's decision to reject Jackson's Brady

challenge did not contravene or misapply Supreme Court precedent,

and was not contrary to the evidence in the record.

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 C.

Finally, Jackson asks that he be allowed to supplement

the record in an evidentiary hearing. To qualify for a hearing

under § 2254(e)(2), a petitioner for habeas relief must go one of

two routes. First, if the petitioner exhausted his claim but the

state court did not adjudicate it on the merits, he may be granted

an evidentiary hearing in the course of our de novo review of his

claim. See Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011).

Second, if the petitioner's claim was adjudicated on the merits in

state court and the petitioner can successfully show that his claim

has merit under § 2254(d), he may be granted an evidentiary hearing

before we determine whether there was structural error or actual

prejudice. See Sanchez v. Roden, 808 F.3d 85, 89 (1st Cir. 2015).

If the state court does adjudicate a petitioner's claims on the

merits, and he cannot clear the hurdle of § 2254(d) based on the

record that was before the state court, an evidentiary hearing

under § 2254(e) is not allowed. See Cullen v. Pinholster, 563

U.S. 170, 185 (2011). "We review the district court's refusal to

hold an evidentiary hearing for abuse of discretion." Companonio

v. O'Brien, 672 F.3d 101, 112 (1st Cir. 2012) (citing Forsyth v.

Spencer, 595 F.3d 81, 85 (1st Cir. 2010)).

The district court correctly found that Jackson failed

to "overcome the limitation of § 2254(d)(1) on the record that was

before the state court." Atkins, 642 F.3d at 49 (quoting Cullen,

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563 U.S. at 185). Thus, the "very limited circumstances" in which

the state court record should be supplemented in federal court,

Sivo v. Wall, 644 F.3d 46, 51 (1st Cir. 2011), are not present

here.

III. Conclusion

What never emerged from the information produced by the

Commonwealth or from the formal and informal discovery Jackson

conducted was any direct evidence that the Commonwealth ever

promised Olbinsky anything. At best, Jackson is left to argue

that because prosecutors in the Commonwealth and Oregon went easy

on Olbinsky, and because Oregon prosecutors were asked to treat

him "nicely," the Commonwealth must have so promised. Nothing

here, though, compels such an inference, or otherwise renders

unreasonable the contrary view of the SJC in its application of

legal rules well aligned with the requirements of federal

constitutional law. For this basic reason, Jackson's request for

habeas relief fails.

We affirm the decision of the district court. Jackson's

petition for habeas corpus is denied.

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