Jackson v. Marshall

148 F.Supp.3d 152

David Jackson, Petitioner,

v.John Marshall, Respondent.

CIVIL ACTION NO. 99-11837-WGY

United States District Court, D. Massachusetts.

Signed December 08, 2015

Alan J. Black, Alan Black, Attorney at Law, Northampton, MA, Mark L. Stevens, Law Office of Mark Steves, Salem, NH, for Petitioner.

James J. Arguin, Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, DISTRICT JUDGE

I. INTRODUCTION

Petitioner, David Jackson (“Jackson”), asks this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for armed robbery, burglary, and first-degree murder in the Massachusetts Superior Court sitting in and for the County of Suffolk. Pet. Writ Habeas Corpus (“Habeas Pet.”), ECF No. 4. In 2009, this Court stayed a previous petition for habeas corpus pending further proceedings in the Massachusetts courts regarding two of Jacksons claims. Jackson v. Marshall (“Jackson II ”), 634 F.Supp.2d 146, 163–64 (D.Mass.2009). After this Court issued a stay of his habeas corpus petition, Jackson filed his third motion for a new trial in the state court. Commonwealth v. Jackson (“Commonwealth III ”), 468 Mass. 1009, 1009 , 9 N.E.3d 844 (2014). The Massachusetts Supreme Judicial Court (“SJC”) upheld the trial court's denial of his motion. Id. at 1013, 9 N.E.3d 844. Now that Jackson has exhausted his state avenues of relief, this Court adjudicates his remaining claims: that (1) the prosecutor misrepresented to the jury that Steven Olbinsky (“Olbinsky”) would be prosecuted for murder, thus impermissibly bolstering his credibility, and (2) Jackson's due process rights were violated by the Commonwealth's failure to disclose the favorable treatment it requested for Olbinsky. See Pet'r's Br. Supp. Pet. Habeas Corpus (“Pet'r's Br.”) 22-24, 26, 28, ECF No. 117.

On direct appeal, these claims might have succeeded. This Court is far removed from that, however, and at this point can only grant Jackson his requested relief if he overcomes a “formidable barrier,” Burt v. Titlow , –––U.S. ––––, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013), the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. (2000). While Jackson does not clear this hurdle, the Court nevertheless briefly recounts his post-trial discoveries that are relevant to his current claims because they give the Court pause.

II. ANALYSIS

This Court has discussed in detail the factual and procedural background of Jackson's case in its 2007 order, Jackson v. Marshall (“Jackson I ”), 500 F.Supp.2d 1, 2–4 (D.Mass.2007), and in its 2009 order, Jackson II , 634 F.Supp.2d at 149–53. The SJC has also weighed in on the case by denying three separate motions for a new trial. Commonwealth III , 468 Mass. at 1013, 9 N.E.3d 844 ; Memorandum of Decision & Order, Commonwealth v. Jackson (“Commonwealth II ”), No. SJ-2003-0065 (Mass. Oct. 23, 2003), ECF No. 13;¹ Commonwealth v. Jackson (“Commonwealth I ”), 428 Mass. 455, 467–68, 702 N.E.2d 1158 (1998). The Court will rely on those recitations and will limit its discussion to those facts that are relevant to Jackson's current claims.

At Jackson's trial, the Commonwealth introduced its chief witness, Olbinsky, by assuring the jury both that he was a co-defendant, and that it had not given him any “reward[ ]” for testifying:

[A]s I said Stephen Olbinsky's going to come in and testify. He's a defendant in this case; he's charged with first degree murder. It's important to note at the out-front the Commonwealth, that's me of the district attorney's office, 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.

Trial Tr., vol. 2, 23-24. Jackson's counsel, through cross-examining Olbinsky at trial, attempted to suggest Olbinsky should not be trusted, see id. at 88–89, 106–09, 158–60, but noted during his closing argument that no evidence had been presented showing that the prosecutor or police had made Olbinsky any promises or bestowed on him any rewards in exchange for his testimony. See Trial Tr., vol. 5, 36-37. Instead, Jackson's counsel could only ask the jury to rely on its common sense. See id. at 37. The prosecutor, in closing, responded to Jackson's attacks on Olbinsky by arguing that the jury need not worry that Olbinsky was receiving any sort of special treatment as an inducement to testify: “Stephen Olbinsky's on trial . 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. The testimony was I met the guy two weeks ago.” Id. at 50 (emphasis supplied).

Olbinsky never was “on trial” for murder, however: a motion to dismiss the first-degree murder indictment against him, unopposed by the Commonwealth, was allowed two weeks after Jackson's trial had finished. Jackson II , 634 F.Supp.2d at 150. Throughout his multiple motions for a new trial and habeas petitions, Jackson's most promising claim has always been that the Commonwealth rewarded Olbinsky for testifying against him and that it did not disclose the evidence of such rewards to Jackson, even though they would have constituted valuable grist for cross-examination. The last time he was before this Court, Jackson argued that a bail agreement between the Commonwealth and Olbinsky, allowing Olbinsky free on bail despite a pending first-degree murder charge, was circumstantial evidence of a reward to him and should have been disclosed to Jackson, but this Court ruled such claim procedurally defaulted. Id. at 159.²

Now, Jackson has what he argues is additional proof of a deal: during Jackson's trial, Olbinsky was facing prosecution for multiple counts of possession and delivery of a controlled substance in Oregon—and Oregon prosecutors noted, before Jackson's trial had begun, that “evidently we're trying to work with prosecutors in Boston to treat [Olbinsky] nicely, as he's a material witness in a murder case there.” Suppl. Mem. Supp. Mot. Hr'g Disc., Ex. C, District Att'y File Notes, ECF No. 74; Commonwealth III , 468 Mass. at 1009, 9 N.E.3d 844. Olbinsky eventually pled guilty to a single count of possession, and received a sentence of probation. Commonwealth III , 468 Mass. at 1009, 1010, 9 N.E.3d 844 n.2.³

Jackson's first claim—that the prosecutor impermissibly bolstered Olbinsky's credibility by stating that he would be prosecuted for murder—has been adjudicated on the merits by the SJC. See Commonwealth III , 468 Mass. at 1011, 9 N.E.3d 844 (describing previous rejection on the merits; affirming such rejection).⁴ Thus Jackson must show that its decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1).

Jackson is correct that Olbinsky was not “on trial.” He is also correct that the SJC's reasoning is flawed, as it appears to have misunderstood the thrust of Jackson's argument.⁵ Again, however, AEDPA informs this Court's analysis:

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision ; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (emphasis supplied). In other words, “the ultimate question is not how well reasoned the state court decision is, but whether the outcome is reasonable.” Zuluaga v. Spencer , 585 F.3d 27, 30 n. 1 (1st Cir.2009) (internal citation and quotation marks omitted). An argument that “could have,” Harrington , 562 U.S. at 102, 131 S.Ct. 770, supported denying Jackson's claim is that, even assuming there was a constitutional error in the prosecutor's statement, it did not cause “substantial and injurious effect” on the jury's proceedings. Fry v. Pliler , 551 U.S. 112, 121, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). This would not be an unreasonable result because here, as this Court has previously discussed, there was other testimony supporting Olbinsky's, see Jackson II , 634 F.Supp.2d at 161 (“[E]ven were Olbinsky's testimony discredited, there was other evidence linking Jackson to the crime”) (internal footnote omitted), and as the SJC correctly noted, “Olbinsky had given consistent statements well before the Oregon charges arose [.]” Commonwealth III , 468 Mass. at 1011, 9 N.E.3d 844 (internal citation omitted).

The SJC adjudicated on the merits Jackson's second argument—that the Commonwealth's failure to disclose its advocacy on Olbinsky's behalf with the Oregon prosecutor violated his right to due process—and held that the new disclosure from the Oregon prosecutors did not create “a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial.” Commonwealth III , 468 Mass. at 1010, 9 N.E.3d 844 (citing Commonwealth v. Tucceri , 412 Mass. 401, 413, 589 N.E.2d 1216 (1992) ). This Court again must review Jackson's claim under AEDPA, analyzing only whether the SJC'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.” 28 U.S.C. § 2254(d)(1).⁶ Jackson's constitutional claim is one of non-disclosure, relying on Brady and its progeny. See Pet'r's Br. at 26 (citing Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; United States v. Giglio , 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ). For Jackson to win habeas relief from this Court, he must show that the SJC's holding—that this non-disclosure did not contain “evidence [that] is ‘material’ within the meaning of Brady [meaning that] there is a reasonable probability...