Fulgiam v. Kenneway

364 F.Supp.3d 93

Earl FULGIAM, Petitioner,

v.Steven KENNEWAY, Respondent.

CIVIL ACTION NO. 18-12106-DPW

United States District Court, D. Massachusetts.

Filed March 8, 2019

Elizabeth Dale Caddick, Marblehead, MA, for Petitioner.

Thomas E. Bocian, Office of the Attorney General, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

Petitioner Earl Fulgiam seeks habeas corpus relief from 2013 Massachusetts state court convictions for first degree murder, carrying a firearm without a license, carrying ammunition without a license, and possession of a large capacity firearm without a license. He is serving a life sentence without parole.

Mr. Fulgiam filed this federal habeas corpus petition on October 7, 2018. He argues that his right to confrontation under the Sixth Amendment to the United States Constitution was violated in two ways: (1) by admission of a ten-print fingerprint card containing his name, and (2) by certain testimony received from a fingerprint expert. The Respondent has moved for judgment on the pleadings.

I. BACKGROUND

A. Factual Background

When evaluating habeas corpus petitions made by state prisoners pursuant to 28 U.S.C. § 2254, findings of fact by the state court "shall be presumed to be correct" and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) ; Rashad v. Walsh , 300 F.3d 27, 35 (1st Cir. 2002) (explaining that deference is accorded to findings of both state trial and state appellate courts). The parties do not appear to contest the factual findings reported by the Supreme Judicial Court of Massachusetts, see generally Commonwealth v. Fulgiam , 477 Mass. 20, 73 N.E.3d 798 (2017). I rely upon the state court's pertinent findings here.

On July 25, 2011, the victims, Billie Marie Kee and Kevin Thomas, Jr., were robbed and killed in their Boston apartment. Ms. Kee was found lying down on the floor. She had suffered four gunshot wounds and multiple stab wounds that damaged her torso, lungs, ribs, and spine. Mr. Thomas was found dead in the front bedroom with his legs bound with a black cord. He had suffered seven gunshot wounds and four stabs wounds that damaged his torso and neck.

The police found a curling iron with its cord cut near Ms. Kee's body. The curling iron cord matched the wire that was used to bind Mr. Thomas' legs. The police also found a loaded nine-millimeter semiautomatic pistol with a magazine. All bullets, bullet fragments, and shell casings recovered from the scene had been fired from the nine-millimeter semiautomatic pistol. The police later individualized¹ a latent print found on the curling iron to co-defendant Michael T. Corbin, and four latent prints from the nine-millimeter semiautomatic pistol to Mr. Fulgiam.

B. Procedural History

Mr. Fulgiam and Mr. Corbin were tried by a jury in the Suffolk County Superior Court from May 1 to May 20, 2013. At trial, Kristen Tolan, a fingerprint examiner from the Boston Police Department, testified that seven latent prints were recovered from the nine-millimeter semiautomatic pistol. She further testified that after she entered the first latent print into the Automated Fingerprint Identification System ("AFIS system"), the system generated a ten-print card² for Earl Fulgiam. The ten-print card contained Mr. Fulgiam's name, date of birth, sex, race, place of birth, height, weight, eye color, and hair color. It did not, however, include the date, the name of an arresting officer, the signature of the officer taking the prints, the signature of the person being fingerprinted, or the name of the Department. The card did contain an arrest date of "07 18 2011," seven days before the date of the murder. Ms. Tolan testified that using the ACE-V methodology (analysis, comparison, evaluation, and verification), she was able to individualize four latent prints from the semiautomatic pistol to Mr. Fulgiam.

Mr. Fulgiam sought to exclude the ten-print card and objected at trial, stating that it was "hearsay ... being offered specifically for a testimonial purpose." The trial court denied the motion because it was "of the view that the AFIS ten-print fingerprint card [was] not testimonial."

In addition to his objection to the ten-print card, Mr. Fulgiam also objected when the prosecutor asked Ms. Tolan, "Without getting into the name, was your work with respect to [the four individualized prints] verified after you came to your conclusions?" The trial judge sustained the objection as to the word "verified," stating, however, that the prosecutor could "get into the name," but couldn't elicit "anything other than what he might have done when he examined them." The prosecutor then asked Ms. Tolan if her findings had been "reviewed" by Ioan Truta, a criminalist in the Latent Print Unit, to which she replied "yes." Although Mr. Fulgiam again objected, the trial court overruled the objection.

On May 20, 2013, the jury convicted Mr. Fulgiam and Mr. Corbin guilty as joint venturers in first degree murder. The jury also convicted Mr. Fulgiam and Mr. Corbin of carrying a firearm without a license, possession of a large capacity firearm without a license, and carrying ammunition without a license.

Mr. Fulgiam and Mr. Corbin appealed to the SJC. As pertinent here, Mr. Fulgiam argued to the SJC that the trial court erred in the admission of (1) the ten-print card without proper authentication or reliability; and (2) expert testimony related to the fingerprint analysis. On May 5, 2017, the SJC upheld the convictions. Mr. Fulgiam subsequently filed a petition for rehearing. On June 28, 2017, the SJC denied the petition but amended its decision. Mr. Fulgiam then sought — but on October 10, 2017, was denied — a writ of certiorari from the Supreme Court of the United States. On October 7, 2018, Mr. Fulgiam filed this petition for a writ of habeas corpus from this Court pursuant to 28 U.S.C. § 2254, on the grounds that his Sixth Amendment right to confront witnesses was violated by the admissions of (1) the ten-print card bearing his name and (2) Ms. Tolan's testimony relating to Mr. Truta.

II. STANDARD OF REVIEW

A state petitioner seeking federal habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), must overcome a demanding burden. Cooper v. Bergeron , 778 F.3d 294, 299 (1st Cir. 2015). A federal court may not grant an application for a writ of habeas corpus unless the state court decision was (1) "contrary to, or an unreasonable application of clearly established" federal law, as determined by the Supreme Court, or (2) "based on an unreasonable determination of the facts in light of the evidence" presented during the state court proceeding. 28 U.S.C. § 2254(d).

In this context, "clearly established" federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Lockyer v. Andrade , 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). To secure habeas relief on the basis of an "unreasonable application of" Supreme Court precedent, the state-court decision must not merely be based on an "erroneous" or "incorrect" legal interpretation.

Id. at 75, 123 S.Ct. 1166. Rather, it must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Additionally, "evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Id. at 101, 131 S.Ct. 770.

Finally, even if a state court decision is contrary to, or an unreasonable application of, established federal law, a petitioner is not entitled to habeas relief unless harm resulted. The standard for determining whether relief must be granted is whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler , 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (quoting Brecht v. Abrahamson , 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ).

III. DISCUSSION

Mr. Fulgiam's claims turn on alleged violation of the Sixth Amendment to the United States Constitution.³

The Sixth Amendment's Confrontation Clause, which is binding on the states through the Fourteenth Amendment, Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI ; see generally Ohio v. Clark , ––– U.S. ––––, 135 S.Ct. 2173, 2179, 192 L.Ed.2d 306 (2015). The Clause enables a criminal defendant to bar out-of-court statements that are "testimonial" by witnesses who did not appear at trial unless the witnesses are unavailable to testify and the defendant had a prior opportunity to cross-examine them. Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In Crawford , the Supreme Court defined a "core class" of testimonial statements as those "that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52, 124 S.Ct. 1354. The Supreme Court has further explained that statements are testimonial when the circumstances objectively indicate that the primary purpose is "to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The First Circuit has synthesized the core concern of this Supreme Court case law as whether an objectively reasonable declarant could have anticipated the statement would be used at trial. See ...