Lopez v. Massachusetts

480 F.3d 591

José LÓPEZ, Petitioner, Appellant, v. Commonwealth of MASSACHUSETTS and Page True, Warden, Sussex State Prison, Respondents, Appellees.

No. 06-1663.

United States Court of Appeals, First Circuit.

Heard January 9, 2007.

Decided March 27, 2007.

Mary A. Azzarito with whom Benjamin D. Entine and The Law Offices of Benjamin D. Entine, J.D., Ph.D were on brief for appellant.

Scott A. Katz, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief for appellees.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

BOUDIN, Chief Judge.

This is an appeal by Jose Lopez, a state prisoner, from the denial by the federal district court of his habeas corpus petition. The central issue concerns the delayed disclosure to Lopez of information helpful to his defense. We recount briefly the factual background and prior proceedings, reserving certain details for later discussion.

Lopez met Maria Rodriguez in July 1993 and, soon thereafter, began to live with Rodriguez and her two sons in Haverhill, Massachusetts. Lopez and Rodriguez quarreled and she obtained a protection order against him but she also allowed him on occasion to stay at her apartment. On June 28, 1994, they quarreled again after Rodriguez was paid to enter into a sham marriage with a man who sought U.S. citizenship.

Lopez left the apartment after this quarrel but returned early in the morning on June 29. In the afternoon of the 29th, Rodriguez left the apartment, leaving Lopez to watch after her son Danny, age seven, who was then playing at a neighbor's house. Later in the afternoon, Lopez picked up Danny in his truck. Lopez returned to the apartment in the evening without Danny and said he did not know where Danny had gone.

On June 30, police searched an apartment that Lopez had visited on the afternoon Danny had disappeared and recovered certain items, including pants that Lopez had been wearing on the prior day which were now wet. From his truck, they recovered a piece of rope. On the same day, Lopez was arrested.

Danny's body was discovered at a salvage yard in Haverhill on July 8, 1994, in the trunk of a white car that was marked to be destroyed. A 100-pound transmission had been used to weight down Danny's body, and rope was wrapped around his neck and tied to the hinges of the trunk. Lopez, the police learned, had visited the yard about 10 days before, looking for a transmission, and had been directed to the area where the body was thereafter found.

Lopez was tried for Danny's murder and for kidnapping. In addition to the evidence described above, the Commonwealth showed by medical testimony that Danny had died around the time of his disappearance and that paint smears from a screwdriver found in Lopez' truck were consistent with paint on the car in which Danny was found, that two sets of fibers linked Danny to Lopez' truck, and that Lopez' pants contained white paint chips, iron and rust stains and also red fibers that matched those on Danny's shirt.

Julia Diaz, a friend of Rodriguez' who was acquainted with Lopez, testified that Lopez had told her that, if Rodriguez left him, he would "hurt [Rodriguez] where it hurts the most." According to Diaz, Lopez told her a story about a couple "having problems," which led the man to hide the woman's children for a few days, returning the children only once the couple "got back together."

The Commonwealth also presented testimony from Angel Miranda, Lopez' cellmate during his wait for trial. Miranda testified that Lopez had confessed to Miranda that he (Lopez) had offered Danny "ten dollars, driven him to a junkyard, strangled him with a brown towel until he was unconscious, and placed him inside the trunk of a car `marked to be crushed,' with a transmission on top of him." Commonwealth v. Lopez, 433 Mass. 406, 742 N.E.2d 1067, 1070 (2001).

Lopez did not testify but, through other witnesses, sought to establish that he had been close to and cared about the boys; that without Danny he (Lopez) had been seen at a number of places and spent time with various individuals on the afternoon of the disappearance; that he worked with cars and patronized the junkyard in question on other occasions; and (through an expert) that the state's forensic evidence — paint, rust and fiber — was not conclusive.

One other line of evidence offered in Lopez' defense is directly pertinent to this appeal. Lopez' trial had begun on July 12, 1996, and the prosecution's case in chief had ended on July 17. On July 18, when the defense began to present its case, the prosecutor, Kevin Mitchell, learned from Massachusetts State Police Sergeant John Garvin that a Haverhill police officer had received a phone call on July 17 from one John Roche, who had information regarding Lopez' case. Mitchell directed Garvin to create a report summarizing the call and upon receipt gave the report to Lopez' counsel.

Roche testified on July 23, 1996, as a defense witness, that he lived on a road abutting the salvage yard and that he had observed a suspicious truck on the road in the last week of June 1994. There were three people in the truck, one of whom was "stocky, bald and Spanish." Roche also said that he had told the Haverhill police of this fact on July 3, 1994, and had recontacted the police during the trial to repeat this information because they had apparently not followed up on it.¹

Ronald Parolisi, captain of the Haverhill police, then testified that the person described by Roche "sounded like a local person that [the police] know as Kojak," who was suspected of dealing drugs, and that Kojak had not been a subject of the murder investigation. In his closing, Lopez seized on Roche's and Parolisi's testimony, suggesting that Kojak — perhaps along with Rodriguez — had killed Danny and disposed of the body.

The jury convicted Lopez of both murder and kidnapping, the former resulting in a mandatory life sentence. See Mass. Gen. Laws ch. 265, § 2 (1994). Lopez then sought a new trial based on allegedly new evidence, specifically, that "Kojak" was a drug dealer named Juan Garcia, that Roche had now identified a photograph of Garcia as one of the men he had seen in the truck near the junkyard, and that — to Lopez' own knowledge — Garcia had supplied drugs to Rodriguez and had vowed to have revenge against Lopez after a fight between Garcia and Lopez.

The trial judge denied the new-trial motion, saying that he did not see "a substantial risk that, [if] the jury [were] exposed to [the Garcia-Kojak] evidence, [it] would have reached a different conclusion."² See Lopez, 742 N.E.2d at 1074. The Supreme Judicial Court affirmed, saying that there was "no evidence" that Garcia was involved in Danny's murder, that Roche had been vague about when he saw Garcia, and that the only link of Garcia to the crime was Lopez' own self-serving affidavit. Id. The decision concluded:

Merely introducing another possible suspect, without substantial admissible evidence that this person, and not the defendant, may have committed the crimes, does not warrant a new trial. Here, the possibility of Garcia as an alternate suspect was presented to some extent at trial, and rejected by the jury. The little additional and generalized information contained in the defendant's postconviction affidavits casts no real doubt on the validity of the jury's verdicts.

Id. at 1074-75 (footnote omitted).

Lopez then filed a petition for habeas corpus in the federal district court including a claim that the Kojak evidence had been wrongfully withheld by the police in violation of the Brady doctrine, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the district court ordered an evidentiary hearing. Lopez v. Massachusetts, 349 F.Supp.2d 109, 126 (D.Mass.2004). At the four-day hearing, there was testimony from Roche, Lopez, Garcia, trial prosecutor Kevin Mitchell, and Haverhill police officer Todd Smith.³

At the close of the hearing, on March 1, 2006, the district court judge ruled from the bench. He denied the petition, saying inter alia

• that he largely credited Roche's testimony, although he thought that Roche's identification of Garcia as the man in the truck may have resulted from a suggestive identification process by the defense;

• that he was not persuaded by Lopez [apparently referring to Lopez' attempt to link Garcia to Rodriguez and Lopez' claim of a prior quarrel between him and Garcia];

• that he could not conclude "that any of the facts upon which [the state courts had] based their legal rulings were unreasonable as a matter of law"; and

• that Lopez had had it within his knowledge to provide the information needed to pursue "any additional follow-ups" [apparently meaning that when Kojak's name first surfaced, Lopez could have made the connection and offered the exculpatory information about drug dealing and the alleged quarrel].

The district court granted a certificate of appealability, 28 U.S.C. § 2253(c) (2000); Fed. R.App. P. 22(b)(1), and Lopez appealed to this court. The question before us, broadly framed, is whether there was a Brady violation warranting Lopez' release, subject always to the right of the state to retry him. Where the state court has resolved a constitutional issue, the habeas court must defer within specified limits to judgments by the state court as to issues of both law and fact. See 28 U.S.C. § 2254(d)(1), (e)(1).

The Brady issue was raised in the state proceedings, but the state courts relied not on federal precedent but on state-law cases; nor did they phrase their grounds for rejecting a new trial in traditional Brady terms. See Lopez, 742 N.E.2d at 1073-75. Neither of these facts necessarily precludes deference, see Gipson v. Jordan, 376 F.3d 1193, 1196-97 & n. 1, 1200-05 (10th Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 729, 163 L.Ed.2d 567 (2005); see also Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002),...