Gomes v. Silva

United States Court of Appeals
For the First Circuit

No. 19-1656

JOSEPH GOMES,

Petitioner, Appellant,

v.

STEVEN SILVA, Superintendent,
Massachusetts Correctional Institution-Souza Baranowski,

Respondent, Appellee.

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

[Hon. F. Dennis Saylor, IV, Chief U.S. District Judge]

Before

Lynch, Stahl, and Kayatta,
Circuit Judges.

Charles Allan Hope, with whom Cunha & Holcomb, P.C. was on
brief, for appellant.
Jennifer K. Zalnasky, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Maura Healey, Attorney General
of Massachusetts, was on brief, for appellee.

May 1, 2020
 STAHL, Circuit Judge. Following a jury trial in the

Suffolk County Superior Court, Joseph Gomes was convicted of one

count of first-degree murder and several counts of lesser offenses

in relation to a February 2007 shooting that occurred in the

Roxbury area of Boston, Massachusetts. For the murder conviction,

he received the mandatory sentence of life without parole. Gomes

appealed his convictions, and the Supreme Judicial Court for the

Commonwealth of Massachusetts ("SJC") ultimately upheld them. See

Commonwealth v. Gomes, 61 N.E.3d 441 (Mass. 2016) ("Gomes I").

Gomes subsequently petitioned the District Court for the District

of Massachusetts for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. He advanced two claims: that the evidence presented at

his trial was legally insufficient to support a finding beyond a

reasonable doubt that he knowingly participated in the shooting

with an intent to kill; and that the trial court committed

prejudicial error by admitting into evidence certain items found

at an apartment building owned by his parents in violation of his

due process rights. In June 2019, the district court denied the

petition but subsequently granted a certificate of appealability.

Gomes timely appealed. We affirm under the highly deferential

standard prescribed by the Antiterrorism and Effective Death

Penalty Act ("AEDPA") for federal habeas review of state criminal

convictions.

- 2 -
 I. Background

A. Factual History

"[W]hen we consider a state conviction on habeas review,

we presume the state court's factual findings to be correct."

Dorisca v. Marchilli, 941 F.3d 12, 14 (1st Cir. 2019) (quoting

Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014)); see 28 U.S.C.

§ 2254(e)(1). We draw the following essential facts from the

opinion of the SJC. See Gomes I, 61 N.E.3d at 444-46.

In February 2007, several members of the Gomes and

DaSilva families lived in an apartment building on Langdon Street

in Roxbury. The building was owned by petitioner Gomes's parents,

who lived in an apartment on the second floor. Anthony DaSilva

("Anthony"), Gomes's nephew, lived in an apartment on the first

floor. Gomes did not live in the building at that time.

On the morning of February 13, 2007, as Anthony walked

out of his home toward his car, he noticed a black Buick automobile

stopped at the intersection of George Street and Langdon Street.

The Buick moved slowly down George Street as the driver, David

Evans, watched Anthony. Soon after, Anthony, then sitting in his

car, saw the same Buick make a fast turn onto Langdon Street.

Anthony circled the block, and the Buick followed. He returned

to the Langdon Street apartment building and parked his car. He

ran into the building with his father, who had been standing by

the building's door. They both heard gunshots being fired. A

- 3 -
neighbor also heard the shots and, looking out of her window, saw

a man chase the Buick and fire several shots at it before running

to the Langdon Street apartment building. Later that day, Evans,

who had rented the Buick, returned it to the rental agency with

damage to a tire consistent with gunfire; a mechanic who eventually

repaired the Buick found a bullet and provided it to the police.

After returning the Buick, Evans rented a silver Nissan Maxima

automobile with New Hampshire license plates.

Boston police officers arrived at the Langdon Street

apartment building shortly after 9:00 a.m. Gomes arrived there

within the next fifteen minutes. He was met by the police

officers, who allowed him to enter the building to check on his

parents. Around 10:00 a.m., Gomes became upset and argumentative

with the police and was escorted out of the building in handcuffs.

He was released and permitted to leave shortly after. Gomes drove

away in a rented silver Chevrolet Impala automobile with New

Hampshire license plates.

Based on the report that the gunman had run into the

Langdon Street apartment building, police officers cleared the

building of all residents. In the process, four young men were

discovered in the common basement of the building, arrested, and

charged with breaking and entering. One of the men matched the

neighbor's description of the man who had fired shots at the Buick.

The police secured the building while they waited for a search

- 4 -
warrant. During that time, no residents were permitted to return

to their apartments, and while waiting, members of the Gomes and

DaSilva families stayed in their cars. Sometime in the afternoon,

Gomes's brother-in-law and one or more police officers observed

Evans's rented Maxima drive by the building.

Around 6:00 p.m. that evening, Gomes drove his Impala

quickly down Roxbury's Maywood Street, where Evans lived. He

stopped the vehicle abruptly when he reached a group of seven men

who were then standing on a porch and sidewalk near where the

Maxima was parked, across the street from Evans's house.

After the Impala stopped, two shooters fired several

gunshots at the standing men from its open front and rear

passenger-side windows. When the shooting ceased, the car, with

Gomes driving, sped off toward Blue Hill Avenue. Within minutes,

Boston police officers responded to the scene. One of the attacked

men, Fausto Sanchez, had been shot in the lower back. He was

transported to a hospital, where he arrived in cardiac arrest and

was pronounced dead soon after. The cause of his death was blood

loss due to the gunshot wound. Among the remaining men, Roberto

Ramos-Santiago sustained multiple gunshot wounds, Joel Perez was

shot in the right calf, and Maurice Cundiff fractured his arm while

fleeing the gunfire. Perez told an officer that the shooters were

in a gray, four-door, newer-model Chevrolet Impala, and that

description was broadcast over the police radio.

- 5 -
 Two guns had been used in the shooting -- a .38 revolver

and a .380 semiautomatic pistol.1 Neither of those guns were

recovered by the police. However, the police did recover one

spent .380-caliber shell casing in front of the Maywood Street

house and one .38-caliber bullet from the kitchen floor of a home

on nearby Savin Street; the bullet had entered the kitchen through

a rear window that faced Maywood Street. Meanwhile, shortly after

6:00 p.m., a detective driving to the Maywood Street scene observed

an Impala that matched the description given by Perez. Gomes was

driving the Impala, and Emmanuel DaSilva ("Emmanuel") -- Anthony's

cousin -- was in the front seat. The detective stopped the

vehicle. Gomes and Emmanuel were taken into police custody, and

the Impala was towed to the police station. Officers searched the

Impala pursuant to a warrant and discovered six spent .380-caliber

shell casings on the front passenger side -- two on the seat and

four on the floor. There was also a piece missing from the

passenger-side mirror. Ballistics testing showed that the spent

.380-caliber shell casing found on Maywood Street and the six

.380-caliber shell casings found inside the Impala had been fired

from the same .380-caliber gun. In addition, the .38-caliber

1As the SJC noted, "[a]ccording to a Boston police
ballistics expert, .380 caliber ammunition and .38 caliber
ammunition are not interchangeable; a .380 caliber cartridge is
designed to be used in a semiautomatic pistol, while a .38 caliber
cartridge is designed to be used in a revolver." Gomes I, 61
N.E.3d at 446 n.6.

- 6 -
bullet found in the kitchen of the house on Savin Street and a

.38-caliber bullet that was recovered from Ramos-Santiago's arm

had been fired from the same .38-caliber gun.

Around 10:00 p.m., the police obtained the search

warrant that they were awaiting and searched the Langdon Street

apartment building. In the first-floor apartment, police found

mail dated May 2006 that was addressed to Gomes, two bags of

marijuana, two electronic scales, and $7447 in cash that was hidden

in the headboard of a bed. In the basement, police found personal

papers, some of which belonged to Gomes, crack cocaine, marijuana,

$545 in cash, a red, hooded sweatshirt, a .25-caliber firearm and

a .22-caliber firearm, each loaded with six rounds of ammunition,

a nine-millimeter firearm loaded with eight rounds of ammunition,

and a .380-caliber Mauser semiautomatic firearm containing no

ammunition. Subsequently, ballistics determined that the Mauser

had fired the bullet that was recovered from Evans's rented Buick

and had ejected the five .380-caliber shell casings found by police

outside the Langdon Street apartment building.

B. Procedural History

On May 2, 2007, a Suffolk County grand jury returned

indictments charging Gomes with one count of murder in the first

degree; six counts of armed assault with intent to murder; one

count of assault and battery by means of a dangerous weapon; one

count of aggravated assault and battery by means of a dangerous

- 7 -
weapon; four counts of assault by means of a dangerous weapon; two

counts of unlawful possession of a firearm; and one count of

unlawful possession of ammunition.2

A jury trial was held in the Suffolk County Superior

Court from November 9 to December 13, 2010. The Commonwealth of

Massachusetts's ("Commonwealth") theory was that Gomes was a joint

venturer3 with Emmanuel in committing the Maywood Street shooting

to retaliate against Evans for pursuing Anthony and thereby causing

the police occupation of the Langdon Street apartment building.

Over Gomes's objection, the trial court allowed into evidence the

items seized by the police from the apartment building. At the

close of the Commonwealth's case, Gomes moved for a required

finding of not guilty, which was denied. Gomes renewed his motion

at the close of evidence, and it was again denied.

On December 13, 2010, the jury convicted Gomes of one

count of murder in the first degree; four counts of armed assault

with intent to murder; one count of assault and battery by means

2 Gomes was also charged as a habitual offender in eight
of the counts. These enhancements were dismissed after trial, and
prior to trial, a nolle prosequi was entered for the unlawful
possession of a firearm and ammunition charges. Gomes was not
charged with any offenses in connection with the drugs and firearms
found in the building.

3 "A joint venturer is 'one who aids, commands, counsels,
or encourages commission of a crime while sharing with the
principal the mental state required for the crime.'" Commonwealth
v. Semedo, 921 N.E.2d 57, 65 (Mass. 2010) (quoting Commonwealth v.
Soares, 387 N.E.2d 499, 506 (Mass. 1979)).

- 8 -
of a dangerous weapon; one count of aggravated assault and battery

by means of a dangerous weapon; and two counts of assault by means

of a dangerous weapon. On December 22, Gomes received the

mandatory sentence of life without parole for the first-degree

murder conviction. He was also sentenced to seventeen to eighteen

years in prison, to be served from and after the life sentence,

for his conviction of armed assault with intent to murder

Ramos-Santiago, and to shorter, concurrent sentences on the

remaining counts.

Gomes subsequently appealed to the SJC, arguing, inter

alia, that his due process rights were violated because he was

convicted on insufficient evidence, and that the trial judge

committed prejudicial error in admitting the evidence obtained

from the Langdon Street apartment building. On October 26, 2016,

the SJC affirmed Gomes's convictions. Gomes I, 61 N.E.3d at 455.

The SJC determined that the trial evidence was sufficient to permit

a rational jury to infer that Gomes knowingly participated in the

shooting and had or shared an intent to kill, and that the trial

court's admission into evidence of the items seized from the

Langdon Street apartment building was not erroneous. Id. at

447-51. On November 4, Gomes petitioned the SJC for a rehearing,

which was denied on December 1, 2016.

On January 26, 2018, Gomes petitioned the District Court

for the District of Massachusetts for a writ of habeas corpus

- 9 -
pursuant to 28 U.S.C. § 2254. On June 20, 2019, the district

court denied the petition. However, on June 26, the district

court granted a certificate of appealability. This timely appeal

followed.

II. Discussion

A. Standard of Review

We review de novo the district court's denial of a

petition for a writ of habeas corpus. Linton v. Saba, 812 F.3d

112, 121 (1st Cir. 2016). "Under the 'peculiarly deferential

standards' of the [AEDPA], 'error by a state court, without more,

is not enough to warrant federal habeas relief.'" Bebo v.

Medeiros, 906 F.3d 129, 134 (1st Cir. 2018) (quoting Cronin v.

Comm'r of Prob., 783 F.3d 47, 50 (1st Cir. 2015)), cert. denied,

139 S. Ct. 1203 (2019). Habeas relief under the AEDPA

shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings
unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). An adjudication is "on the merits," and thus

entitled to deference under § 2254(d), "if there is a decision

finally resolving the parties' claims, with res judicata effect,

- 10 -
that is based on the substance of the claim advanced, rather than

on a procedural, or other, ground." Linton, 812 F.3d at 122

(quoting Yeboah-Sefah v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009)).

Gomes brings his claims pursuant to § 2254(d)(1).4 To

ascertain "clearly established Federal law" under that provision,

we review "the Supreme Court's holdings, as opposed to dicta, at

the time the state court rendered its decision." Id. (quoting

Hensley, 755 F.3d at 730-31). "An unreasonable application occurs

when 'the state court identifies the correct governing legal rule

. . . but unreasonably applies it to the facts of the particular

state prisoner's case.'" Bebo, 906 F.3d at 134 (alteration in

original) (quoting White v. Woodall, 572 U.S. 415, 425 (2014)).

"For purposes of § 2254(d)(1), 'an unreasonable application of

federal law is different from an incorrect application of federal

law.'" Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting

Williams v. Taylor, 529 U.S. 362, 410 (2000)).5 To merit a writ

4 Although Gomes does not identify the prong of § 2254(d)
under which he brings his claims, we have recognized that
"[i]nferences, characterizations of the facts, and mixed fact/law
conclusions are more appropriately analyzed under the
'unreasonable application' prong of section 2254(d)(1)." Ouber
v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002). In contrast, "the
special prophylaxis of section 2254(d)(2) applies only to
determinations of 'basic, primary, or historical facts.'" Id.
(quoting Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001)).

5 On the other hand, a state court's decision is
"contrary to" clearly established federal law if the state court
"'applies a rule that contradicts the governing law set forth' by
the Supreme Court or 'confronts a set of facts that are materially
- 11 -
of habeas corpus, a petitioner must show that "the state court's

ruling on the claim . . . was so lacking in justification that

there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement." Id. at

103. The state court's ruling "may be objectively reasonable even

if the federal habeas court, exercising its independent judgment,

would have reached a different conclusion." Lyons v. Brady, 666

F.3d 51, 54 (1st Cir. 2012) (quoting Rashad v. Walsh, 300 F.3d 27,

35 (1st Cir. 2002)).

Because the SJC adjudicated Gomes's claims on the

merits, we apply this highly deferential standard. See Linton,

812 F.3d at 123. Reviewing the claims in turn, we ultimately

conclude that both fail.

B. Sufficiency of the Evidence

Gomes first claims that the SJC unreasonably sustained

his conviction for first-degree murder as a joint venturer because

the trial evidence was insufficient to support a jury finding

beyond a reasonable doubt that he knowingly participated in the

shooting and had or shared an intent to kill. He contends that

indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [its] precedent.'"
Linton, 812 F.3d at 122 (alterations in original) (quoting Hensley,
755 F.3d at 731). Gomes appears to argue only that the challenged
elements of the SJC's decision were "unreasonable application[s]"
of clearly established federal law and not that they were "contrary
to" it.

- 12 -
this insufficiency violated his constitutional due process right

to be convicted only upon proof beyond a reasonable doubt of every

element of a crime. See In re Winship, 397 U.S. 358, 364 (1970)

("[T]he Due Process Clause [of the Fourteenth Amendment] protects

the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime

with which he is charged.").

The clearly established federal law governing direct

review of sufficiency claims is provided by Jackson v. Virginia,

443 U.S. 307 (1979). See Linton, 812 F.3d at 123. Jackson

requires a reviewing court to ask "the relevant question [of]

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." 443

U.S. at 319. Further, a criminal conviction may be supported by

circumstantial evidence alone. Id. at 324-25; see Magraw v.

Roden, 743 F.3d 1, 6 (1st Cir. 2014) ("[U]nder Jackson, direct

evidence is not necessary to sustain a conviction. . . . This

principle is even more firmly established in connection with the

deferential approach to state-court decisionmaking that federal

habeas review demands." (citation omitted)).

A federal court reviewing a habeas petition that raises

a sufficiency claim under Jackson must apply a "twice-deferential

standard." Parker v. Matthews, 567 U.S. 37, 43 (2012).

- 13 -
Specifically, on habeas review, we may not overturn an underlying

state court decision rejecting a sufficiency challenge unless the

decision is "objectively unreasonable." Id. (quoting Cavazos v.

Smith, 565 U.S. 1, 2 (2011)). Thus, we ask "whether the state

courts' ruling that the evidence is constitutionally sufficient

was itself 'unreasonable.'" Winfield v. O'Brien, 775 F.3d 1, 8

(1st Cir. 2014) (quoting § 2254(d)(1)). "'Unreasonable' in this

context means that the decision 'evinces some increment of

incorrectness beyond mere error.'" Id. (quoting Leftwich v.

Maloney, 532 F.3d 20, 23 (1st Cir. 2008)).

With these principles in mind, we consider the SJC's

rejection of Gomes's sufficiency challenge. Under Massachusetts

law,

[t]o succeed on a theory of deliberately premeditated
murder as a joint venturer . . . the Commonwealth was
required to prove that [Gomes] was "(1) present at the
scene of the crime, (2) with knowledge that another
intends to commit the crime or with intent to commit a
crime, and (3) by agreement, [was] willing and available
to help the other if necessary."

Commonwealth v. Zanetti, 910 N.E.2d 869, 875 (Mass. 2009) (third

alteration in original) (quoting Commonwealth v. Green, 652 N.E.2d

572, 578 (Mass. 1995)), overruled in part on other grounds by

Commonwealth v. Britt, 987 N.E.2d 558 (Mass. 2013). Further, the

Commonwealth needed to prove that Gomes "shared the mental state

or intent for deliberately premeditated murder, which is malice,

and, in particular, an intent to kill." Id. On direct review of

- 14 -
Gomes's conviction, the SJC explained that it would "determine

whether the evidence, viewed in the light most favorable to the

Commonwealth, 'was sufficient to persuade a rational jury beyond

a reasonable doubt of the existence of every element of the

crime[s] charged.'" Gomes I, 61 N.E.3d at 447 (alteration in

original) (quoting Commonwealth v. Lao, 824 N.E.2d 821, 829 (Mass.

2005)).6 Viewing the evidence in the light most favorable to the

Commonwealth, the SJC determined that:

[A] reasonable jury could find that [Gomes] . . . was
motivated by anger at the events that resulted from
Evans's actions . . . that [Gomes] was the driver of
the Impala that sped down Maywood Street . . . and
stopped the vehicle directly parallel to the group of
young men standing near where Evans's Maxima was parked;
that [Gomes] remained stopped at that location while
multiple shots were fired from two different weapons at
the group of young men; that when the shooting ceased,
[Gomes] sped off, quickly removing the shooters from the
scene; and that the shell casings located in [Gomes's]
vehicle were consistent with at least one casing found
at the scene.

Id. at 448. The SJC concluded that the evidence "was more than

6 The Massachusetts standard cited by the SJC is
consistent with Jackson and is thus entitled to the same deference
under § 2254(d)(1). See Linton, 812 F.3d at 122 ("[A] state-court
adjudication of an issue framed in terms of state law is
nonetheless entitled to deference under section 2254(d)(1) as long
as the state and federal issues are for all practical purposes
synonymous and the state standard is at least as protective of the
defendant's rights as its federal counterpart." (alteration in
original) (quoting Foxworth v. St. Amand, 570 F.3d 414, 426 (1st
Cir. 2009))); Commonwealth v. Latimore, 393 N.E.2d 370, 374-75
(Mass. 1979) (concluding that this standard conforms to the federal
constitutional requirement announced in Jackson, 443 U.S. at
318-19).
- 15 -
sufficient to permit a reasonable fact finder to infer that

[Gomes] knowingly participated in the shooting incident and had

or shared an intent to kill." Id. In support, the SJC cited

several precedential cases standing for the proposition that the

requisite knowledge and intent under a joint venture theory may

be inferred from certain actions undertaken by a defendant. Id.

(citing Commonwealth v. Williams, 661 N.E.2d 617, 625 (Mass. 1996)

(holding, on direct review of first-degree murder conviction, that

"[j]oint venture may be proved by circumstantial evidence,

including evidence of flight together"); Commonwealth v. Giang,

524 N.E.2d 383, 386 (Mass. 1988) (holding that knowing and

intentional participation in principals' crime may be inferred

where defendant drives getaway vehicle); Commonwealth v. Cintron,

759 N.E.2d 700, 707 (Mass. 2001) (holding that defendant's intent

to kill and knowing participation could be inferred where

defendant knew of prior violent history between brother and

victim, chased victim alongside brother, and encouraged brother

to shoot victim), abrogated in part on other grounds by

Commonwealth v. Hart, 914 N.E.2d 904 (Mass. 2009); Commonwealth

v. Soares, 387 N.E.2d 499, 506 (Mass. 1979) (holding, on direct

review of first-degree murder conviction, that "[t]he jury may

infer the requisite mental state from the defendant's knowledge

of the circumstances and subsequent participation in the

offense")).

- 16 -
 Gomes presents a tripartite argument that the SJC's

determination was unreasonable. He first contends that it was

unreasonable for the SJC to rely on the post-facto discovery of

the shell casings in his rented vehicle that matched one found at

the scene of the shooting to support an inference that he was

aware, prior to the shooting, that his passengers were armed and

intended violence.

We reject this argument. The fact of the shell casings

being present in Gomes's rented vehicle was only one factor that

the SJC listed before stating that the collective evidence

permitted a reasonable factfinder to infer that Gomes had the

requisite intent to kill and knowledge of the shooting. The mere

inclusion of that fact, even if it does not speak to knowledge

and intent prior to the shooting, does not "evince[] some

increment of incorrectness beyond mere error" in the SJC's

determination. Winfield, 775 F.3d at 8 (quoting Leftwich, 532

F.3d at 23).

Gomes next argues that the SJC's sufficiency

determination was unreasonable because there was no other evidence

from which a rational jury could infer that he had prior knowledge

of and intent to join a shooting. He submits that the evidence

may have allowed a rational jury to infer that he was searching

for Evans, but not that he was aware or intended that the search

would morph into a fatal shooting targeting a group of people that

- 17 -
did not include Evans.

This contention is unpersuasive. On habeas review of

a state-court conviction for evidentiary sufficiency, we "may not

freely reweigh competing inferences but must accept those

reasonable inferences that are most compatible with the jury's

verdict." Magraw, 743 F.3d at 7. Here, the SJC reasonably

concluded that a rational jury, viewing the collective evidence

in the light most favorable to the Commonwealth, could infer that

Gomes was motivated by anger at Evans and that accordingly, as

the driver of the vehicle from which the shooting emanated who

kept the car stopped throughout the shooting before speeding off,

he knowingly participated in the shooting and had or shared an

intent to kill.

Finally, Gomes argues that the SJC unreasonably relied

on Williams, 661 N.E.2d 617, and Giang, 524 N.E.2d 383, in

determining that a rational jury could infer his prior knowledge

of the shooting from the fact that he quickly drove the car from

the scene of the shooting. He contends that Williams is

distinguishable from this case because it involved a defendant

fleeing on foot with the principal, and that Giang is

distinguishable because the defendant in that case waited in a

getaway vehicle for the fleeing principals to enter before driving

off.

- 18 -
 This argument too fails. Williams, 661 N.E.2d at 625,

and Giang, 524 N.E.2d at 386, hold that the knowledge and intent

necessary to convict on a theory of joint venture may be inferred

from concerted action between the defendant and a principal,

specifically, joint flight from the scene of the crime. The SJC

was not objectively unreasonable in determining that this relevant

precedent supported its conclusion that a reasonable factfinder

could have inferred that Gomes -- who drove to the scene of the

shooting, waited there while it occurred, and then quickly sped

off with the shooter or shooters in tow -- knowingly participated

in the shooting and had or shared an intent to kill.7

Accordingly, the SJC was not objectively unreasonable in

determining that the evidence, viewed in the light most favorable

to the Commonwealth, was sufficient to permit a rational factfinder

to infer beyond a reasonable doubt that Gomes knowingly

participated in the shooting and had or shared an intent to kill

7
Attempting to neutralize the fact of joint flight,
Gomes asserts that the more probable inference is that he was
surprised by the shooting but could not order the shooters to exit
his vehicle until he had driven off and recovered from his
surprise. We decline this invitation to elevate a conflicting
inference over the reasonable inference, credited by the SJC and
more compatible with the verdict, that Gomes knew of the shooting
beforehand and had or shared an intent to kill. See Magraw, 743
F.3d at 7; Linton, 812 F.3d at 123 ("[A] federal habeas corpus
court faced with a record . . . that supports conflicting
inferences must presume . . . that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to that
resolution." (alterations in original) (quoting Jackson, 443 U.S.
at 326)).
- 19 -
as necessary to sustain his conviction for first-degree murder as

a joint venturer. Gomes's first claim to habeas relief therefore

fails.

C. Admission of Evidence Allegedly in Violation of Due Process

Gomes next claims that the SJC unreasonably determined

that the trial court's admission into evidence of certain items,

including money, drugs, and guns, recovered from the Langdon Street

apartment building did not constitute error. He argues that the

admission denied him his constitutional due process right to a

fair trial. This claim is unavailing.

An erroneous evidentiary ruling that results in a

fundamentally unfair trial in state court may violate the Due

Process Clause of the Fourteenth Amendment and merit a federal

writ of habeas corpus. See Lyons, 666 F.3d at 55-56; Coningford

v. Rhode Island, 640 F.3d 478, 484 (1st Cir. 2011); see also

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Such relief is

elusive, as the Supreme Court has "defined the category of

infractions that violate 'fundamental fairness' very narrowly."

Dowling v. United States, 493 U.S. 342, 352 (1990). To warrant

habeas relief, "the state court's application of state law must be

'so arbitrary or capricious as to constitute an independent due

process . . . violation.'" Coningford, 640 F.3d at 484 (quoting

Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). That is, for there

"[t]o be a constitutional violation, [the] state evidentiary error

- 20 -
must so infuse the trial with inflammatory prejudice that it

renders a fair trial impossible." Lyons, 666 F.3d at 56 (quoting

Petrillo v. O'Neill, 428 F.3d 41, 44 n.2 (1st Cir. 2005)).

Minding these tenets, we turn to the SJC's rejection of

Gomes's argument that the trial court's admission of the challenged

evidence was prejudicial error. Under Massachusetts law,

"evidence of uncharged criminal acts or other misbehavior is not

admissible to show a defendant's bad character or propensity to

commit the charged crime, but may be admissible if relevant for

other purposes such as 'common scheme, pattern of operation,

absence of accident or mistake, identity, intent or motive.'"

Commonwealth v. Dwyer, 859 N.E.2d 400, 407 (Mass. 2006) (quoting

Commonwealth v. Marshall, 749 N.E.2d 147, 155 (Mass. 2001)). In

Gomes's case, the SJC explained that:

The trial judge admitted the evidence challenged by
[Gomes] for the limited purpose of proving [Gomes's]
knowledge, motive, or intent. The evidence was relevant
with respect to all three of these issues, where the
Commonwealth's theory was that [Gomes] (and Emmanuel),
based on loyalty to family and friends, sought to
retaliate against Evans for Evans's pursuit of Anthony
and the family members' subsequent disruption and loss
of valuable items (the cash, guns, and drugs in the
basement) due to police action . . . . This evidence
provided a possible explanation for [Gomes's] clear
agitation about the presence of the police in his
family's apartment building and more directly showed the
extent of the loss to [Gomes's] family members and
friends, which may have fueled [Gomes's] desire to
retaliate over and above Evans's threatening conduct
toward Anthony.

- 21 -
Gomes I, 61 N.E.3d at 449 (citing Commonwealth v. DaSilva, 27

N.E.3d 383, 391 (Mass. 2015) (holding that evidence of uncharged

conduct may be relevant to show motive to retaliate)). In response

to Gomes's argument that the connection between him and the

evidence was attenuated, the SJC reasoned that "the link between

the over-all inconvenience to [Gomes's] family and his alleged

motivation to commit the crime was certainly strong enough to

satisfy the threshold requirement of relevance." Id. at 449

(citing Commonwealth v. Ashley, 694 N.E.2d 862, 866 (Mass. 1998)

("There is no requirement that evidence [of motive] be conclusive

in order to be admissible." (alteration in original))).

The SJC did, however, comment on factors that diminished

the probative value of the challenged evidence, such as that Gomes

"did not live on Langdon Street, and was not present when the

incident involving Evans and Anthony took place," and that he "was

not charged with any crimes related to the items seized from the

two apartments." Id. at 450. The SJC also observed that the

evidence presented the possibility of prejudicially "paint[ing]

[Gomes] generally as a violent man connected to a violent family

and involved in a life of crime" and "being used improperly by the

jury as evidence of bad character and criminal propensity." Id.

Deeming "[t]he question whether the evidence was more

prejudicial than probative" to be "close," the SJC "recognize[d]

that the trial judge is in the best position, and consequently

- 22 -
possesses substantial discretion, to resolve the question." Id.

(citing L.L. v. Commonwealth, 20 N.E.3d 930, 943 n.27 (Mass. 2014)

(holding that abuse of discretion occurs only where "the judge

made 'a clear error of judgment in weighing' the factors relevant

to the decision . . . such that the decision falls outside the

range of reasonable alternatives" (citation omitted))). The SJC

ultimately concluded that there was no error in the admission of

the challenged evidence, "[p]articularly in light of the judge's

instruction, given during trial when the evidence was admitted and

repeated in his final jury charge, that the evidence was offered

for a limited purpose and the jury were not to consider the

evidence for the purpose of 'criminal propensity' or 'bad

character.'" Id.8

Gomes does not present, and we do not find, any "clearly

established" Supreme Court precedent holding that the admission of

nearly prejudicial but ultimately probative and relevant evidence

of uncharged criminal activity accompanied by a proper limiting

instruction violates due process rights.9 "The absence of an on-

8The SJC further noted that "even assuming that the
evidence should not have been admitted, the admission would likely
not qualify as prejudicial error warranting reversal, given the
strength of the evidence that [Gomes] knowingly participated in
the Maywood Steet shooting incident with the requisite intent to
kill." Gomes I, 61 N.E.3d at 450 n.17.

9The closest that the Supreme Court apparently has come
to addressing this type of claim was to "expressly decline[] to
determine 'whether a state law would violate the Due Process Clause
- 23 -
point pronouncement from the Supreme Court leaves hanging by the

slimmest of threads the petitioner's claim that the state court's

admission of the [challenged] evidence can be deemed an

unreasonable application of the broader fair-trial principle."

Coningford, 640 F.3d at 485. Thus, Gomes summarily argues that

the admission of this evidence infused the trial with inflammatory

prejudice and deprived him of a fair trial. See Lyons, 666 F.3d

at 56.

We reject this argument. Reviewing the trial court's

ruling, the SJC carefully reasoned in accordance with

Massachusetts and federal law that the challenged evidence was

relevant and that the trial judge was best positioned to determine

whether its probative value outweighed its potential prejudicial

effect. See Gomes I, 61 N.E.3d at 449-50. The SJC's affirmance

of the trial court's decision, "whether or not an unarguably

correct evidentiary ruling, was well within the universe of

plausible evidentiary rulings." Coningford, 640 F.3d at 485.

The SJC also reasonably determined that the trial

court's limiting instruction that the jury consider the challenged

evidence for a circumscribed purpose, and not for the purposes of

"criminal personality" or "bad character," weighed against a

[of the Fourteenth Amendment] if it permitted the use of "prior
crimes" evidence to show propensity to commit a charged crime.'"
Coningford, 640 F.3d at 484-85 (quoting Estelle, 502 U.S. at 75
n.5).
- 24 -
finding of prejudicial error. See Gomes I, 61 N.E.3d at 450;

United States v. Olano, 507 U.S. 725, 740 (1993) ("[It is] the

almost invariable assumption of the law that jurors follow their

instructions." (alteration in original) (quoting Richardson v.

Marsh, 481 U.S. 200, 206 (1987))). Accordingly, the SJC

implicitly concluded that Gomes's trial was not infused with

inflammatory prejudice in violation of constitutional due process.

See Lyons, 666 F.3d at 57 (finding that the SJC made such an

implicit conclusion under similar circumstances). Gomes does not

now challenge the efficacy of that limiting instruction. Overall,

Gomes fails to establish that the SJC's ruling on his claim was

"so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility

for fairminded disagreement." Richter, 562 U.S. at 103.

The SJC did not unreasonably apply clearly established

federal law in determining that the trial court did not commit

prejudicial error in admitting the challenged evidence and that

Gomes's trial was not unfair in violation of constitutional due

process. Gomes's second claim to habeas relief thus fails.

III. Conclusion

We AFFIRM the district court's denial of the petition

for a writ of habeas corpus.

- 25 -