HEALY v. SPENCER

397 F.Supp.2d 269 (2005) | Cited 1 time | D. Massachusetts | November 8, 2005

MEMORANDUM REGARDING REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR AN EVIDENTIARY HEARING (Dkt. Nos. 1 and 19) I. INTRODUCTION

Habeas corpus petitioner Wayne Blyth Healy ("Healy" or"Petitioner") contends that he has been wrongly imprisonedfollowing his conviction on one count of first-degree murder. Hisarguments can be divided into three categories: (1) that theprosecution's failure to disclose material, exculpatory evidenceviolated his rights as set forth in Brady v. Maryland,373 U.S. 83 (1963); (2) that he is entitled to an evidentiary hearing todevelop his claim that the jury foreman was improperlyinfluenced; and (3) that there was insufficient evidence tosupport his conviction. Citing Terry Williams v. Taylor, 529 U.S. 362, 410 (2000),1and Jackson v. Virginia, 443 U.S. 307, 319 (1979), RespondentsLuis Spencer and Thomas F. Reily ("Respondent"2 or "theCommonwealth") assert that Petitioner's habeas claims should bedenied because the state court's adjudication involved neither anunreasonable application of clearly established federal law noran unreasonable conclusion that the evidence, when taken in thelight most favorable to the prosecution, was sufficient tosupport the jury's verdict. Furthermore, Respondent contends thatpermitting an evidentiary hearing would be improper in light ofPetitioner's lack of diligence in pursuing a jury taint claim instate court. See Michael Williams v. Taylor, 529 U.S. 420,435 (2000). See supra note 1.

This matter was referred to Magistrate Judge Kenneth P. Neiman,who recommended that habeas corpus relief be granted with respect to Petitioner's Brady claim, that Petitioner'smotion for an evidentiary hearing be allowed, and that relief bedenied, without prejudice, with respect to Petitioner'sinsufficiency of evidence contention. For the reasons set forthbelow, the court will adopt this recommendation with respect toHealy's Brady claim and request for an evidentiary hearing.However, because sufficiency-of-the-evidence review concerns onlythe evidence adduced at trial, United States v. Powell,469 U.S. 57, 67 (1984), the court will deny habeas relief withprejudice with respect to that claim.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Healy I.

1. The Crime.

In its opinion addressing Petitioner's direct appeal,Commonwealth v. Healy, 471 N.E.2d 359 (Mass. 1984) ("HealyI"), the Massachusetts Supreme Judicial Court ("SJC") offeredthe following summary of "the evidence submitted by theCommonwealth." Id. at 363.3 Between 1 and 1:30 A.M. on August 8, 1980, the victim, Richard Frank Chalue, was heard screaming for help from inside his apartment in Holyoke. Chalue's body was found on his bed shortly before 2 A.M. He had been stabbed fourteen times in the chest, once on either side of the neck, and once on his right thigh. There was also a laceration on his left index finger. His hands had been bound behind him with socks tied together, and he had a gag of socks tied around his mouth. He was naked except for a towel wrapped around his neck and a pair of dungarees half-way down his legs. A pair of boots tied together with socks lay on the floor at the foot of the bed. On the table in the kitchen were a partially empty bottle of rum, two bottles of cola, one of which was partially empty, a glass, and an ashtray containing cigarette butts. The apartment was dark, since there was no electricity as a result of a fire in the building the week before. The victim's Doberman pinscher dog was locked in another room of the apartment. Both the front and the back doors were locked, the front door having been locked with a key from the outside.

Id.

2. The Investigation.

"Since the fire," the Commonwealth's evidence indicated that, the victim had been staying alone in the apartment, with the dog guarding his possessions. His girlfriend and her two children, with whom he had shared the apartment for the last three years, were staying with her mother in her mother's apartment in a neighboring building. The victim, his girlfriend, and the children were to have moved to a new apartment on August 8. On the evening of August 7, the victim had supper with his girlfriend and the children in her mother's apartment and then took the children to a park. They returned at about 7:30 P.M., and he left at about 8:20 P.M. At about 9:15 P.M. his girlfriend telephoned Chalue's apartment. There was no answer. She called back twice in rapid succession. Chalue answered the third time, sounding as though he had been running and was out of breath. He said that he had been downstairs at the apartment of a neighbor. Then she heard someone walk into the kitchen and say something to Chalue, and she heard them both laugh. She testified that it was the "very soft voice" of a man. Then Chalue became silent. She asked him who was with him. Finally, he answered that it was "Johnny," the neighbor from downstairs. She asked him several times whether everything was all right. He kept responding, "[S]ure, why wouldn't it be?" Johnny Arel testified at trial that he was not in Chalue's apartment, or indeed in the building, on the night in question. Johnny's brother, Leo, who was staying in the fourth-floor apartment directly below Chalue's, testified that between 9 and 10 P.M. he heard someone going up the stairs; he went out to investigate, and spoke with Chalue, who was outside his own apartment and not within Leo's view. Leo then heard Chalue's front door close. Between midnight and 1 A.M. on August 8 he heard noises in Chalue's apartment as though furniture were being moved. A short time later he heard noises in the hallway and on the stairs outside his front door. When he turned off his radio and approached the door, the noise stopped. Leo was carrying a lantern, and its light was visible through his front door's transom. He heard the noise again twice, and, when he turned the radio off or approached the door, the noise stopped. A short time after the last noise, he heard the police cruisers arrive. A cash register receipt for rum, cola, and ice was found, stained with blood, on the third-floor landing of the front stairs. The Commonwealth's fingerprint expert testified that he had found [Petitioner's] fingerprints on the bottle of rum and on the partially empty bottle of cola. The Commonwealth's expert serologist testified that his tests indicated that four cigarette butts which had been taken from the ashtray on the victim's kitchen table had been smoked by someone who was a "non-secretor," i.e., who did not secrete blood group substances in his saliva. According to the expert's testimony, 20% of the population is composed of non-secretors. A test of [Petitioner's] saliva showed that he was a non-secretor. Further, one of the four cigarette butts was found to contain cell material from a person with group B blood. [Petitioner] has group B blood. According to the Commonwealth's expert, 2% of the population are non-secretors and have group B blood. A bloodstained knife was found on the dresser in Chalue's bedroom. The Commonwealth's expert serologist also testified that tests performed on the blood on the knife showed it to contain A and B antigens, which would be consistent with the blood being a mixture of blood of group A and blood of group B. The victim's blood type was group A. Similarly, a long-sleeved shirt found in a search of [Petitioner's] apartment had a bloodstain containing both A and B antigens. Finally, group B blood was found on the gear shift and brake lever of [Petitioner's] automobile. When the police officers questioned [Petitioner] on the evening of August 8, he had a bandage on the palm of his right hand. The doctor who sutured the wound at about 8:20 A.M. on August 8 testified that in his opinion the wound had been between four and twenty-four hours old at the time he treated it. He testified that the wound could have been caused by the knife found in the victim's bedroom. On August 8 at about 6:15 P.M. William McCarthy, captain of detectives with the Holyoke police department, dialed [Petitioner's] telephone number, which he had found in the victim's address book next to the initials "W.H." [Petitioner] told McCarthy that it had been three or four months since he had last seen the victim, who had once been married to [Petitioner's] sister. He said that he had had a telephone call from Chalue at about 7 P.M. the evening before, inviting him to a "get-together," but that he had declined the invitation because he had other plans for the evening. McCarthy asked Healy if he would come to the police station sometime to talk with the police officers and possibly to help them in the case. Healy made an appointment to meet with McCarthy at the police station on the following day. About twenty minutes later [Petitioner] called McCarthy to ask whether he could come down to the station that evening, saying that he did not think he would be able to sleep that night "thinking about this." McCarthy agreed to the change. . . . . [Petitioner] was accompanied to the police station by his roommate, George Roy. [Petitioner] was ushered into McCarthy's office, and Roy was asked to wait outside. McCarthy began the interview by asking [Petitioner] the names of the victim's friends, what bars and cafes the victim had frequented, and related questions. Then [Petitioner] made the statement that he had taken Chalue the rum and cola, had spoken to him outside, and had returned home at about 10:15 P.M. McCarthy pointed out that this statement contradicted what Healy had told him on the telephone. Healy responded that he had not gone to the apartment and that McCarthy could verify that he arrived home at 10:15 P.M. by asking Roy. When McCarthy went out of the room to question him, Roy stated that on the way to the police station he and [Petitioner] had agreed to say that [Petitioner] got home at about 10:15 P.M., but that it actually could have been 12:30 A.M.Id. at 363-365 (footnotes omitted).

Later in the interview, [Petitioner] told the police officers that after leaving Chalue he had gone to two "gay" bars in Springfield and had arrived home shortly after midnight. When asked by the police officers, he stated that he was a homosexual.Id. at 365.

Also on August 8th, Dr. Paul Wakefield performed an autopsy onthe victim. In a four-page report entitled, "Holyoke HospitalPathology Department Post-Mortem Examination" ("postmortemreport"), Dr. Wakefield stated that the victim's genitalia were"examined closely" and that "no evidence of marks of recentorigin" were found. (Dkt. No. 10, Ex. 11, Def.'s Am. Mot. NewTrial, Ex. B *1.) A similar examination of the rectum revealed"no abnormal findings on the external surface." (Id.) Dr.Wakefield also noted that "[s]mears [were] made by use of a swabfrom both the mouth as well as rectum to be examined under themicroscope." (Id.) Two days later, on August 10th, Dr. Wakefield authored ahandwritten note ("note"), which indicated the results of themicroscopic examination: "Smears made from mouth and rectum failto reveal spermatozoa present." (Dkt. No. 10, Ex. 11, Def.'s Am.Mot. New Trial, Ex. C *1.)

In a two-page "Autopsy Report" dated November 28, 1980, Dr.Wakefield included a subheading entitled, "Final Diagnosis"("final diagnosis"). This report explained the cause of death,but neglected to mention Dr. Wakefield's findings regarding thevictim's rectum and genitalia, the use of any swabs or smears, orthe results of the microscopic examination. (Dkt. No. 10, Ex. 11,Def.'s Am. Mot. New Trial, Ex. D *4.)

After a Hampden county grand jury returned a single indictmentcharging Petitioner with murder on September 11, 1980,Petitioner's counsel moved to have the prosecutor provide himwith all autopsy-related records and disclose any facts of anexculpatory nature. (Dkt. No. 10, Ex. 17, Super. Ct. Findings,Rulings, & Order 6, May 8, 2001.) The district attorney's officeturned over the final diagnosis, but did not produce Dr.Wakefiled's postmortem report or the note. (Id.).

3. The Trial.

a. Evidence Relating to Homosexuality.

Petitioner's jury trial began on March 11, 1981. On March 3rd,during a motion to suppress hearing, the prosecutor asked Healy'sroommate, George Roy, to describe his relationship withPetitioner. (Dkt. No. 24, Tr. Hr'g Mot. Suppress 179:18-19,182:19-20.) When Roy responded that they were "[v]ery goodfriends" (id. at 182:21), the prosecutor asked Roy whether heand Healy "share[d] the same bed," (id. at 183:14). At first,Roy stated that they did, but sought to explain this sleepingarrangement as an accommodation to Petitioner's aunt, who hadmoved in with them. (Id. at 190:3-5.) However, when theprosecutor subsequently asked whether Roy and Healy were lovers(and the court ordered the witness to answer thequestion),4 Roy admitted that they were and stated that this was the primaryreason they slept together. (Id. at 192:2-6, 16-20.)Petitioner's trial counsel objected when the prosecutor proceededto ask whether Roy had "engaged in sexual relations with Mr.Healy," and the court sustained the objection. (Id. at193:18-22.) During his cross-examination, Roy maintained that thereason he and Healy agreed to lie to the police about the timePetitioner returned home was to protect Roy's status as a"closet" homosexual. (Id. at 194-95.)

Two days later, during a bench conference in the process ofpicking a jury, the prosecutor made known his intention to"introduce certain photographs of the deceased" (Dkt. No. 26, Tr.Hr'g 398:23) in order to allow jurors to infer that "it was a homosexual related murder," (id. at 399:5-6). "[I]f infact [Petitioner] is homosexual," the prosecutor told the judge,and the jurors "draw some connection between the two, I thinkthey have a right to do that." (Id. at 399:6-9.)

On the first day of the trial, when the prosecutor didintroduce several such photographs, Petitioner's trial counselargued that they were being used "to suggest to the jurors thatthere was some type of homosexuality involved in this particularmurder and there really is no evidence of that." (Dkt. No. 30,Trial Tr. 887:21-23.) The state trial judge overruled theobjection and permitted the jurors to see the pictures, includingone which showed "the victim lying on his stomach with his handstied behind his back." (Id. at 892:5-6.)5 Theprosecutor subsequently introduced "a pair of underwear found onthe top of the dresser in the Chalue apartment which had stainson it which appeared to be blood." (Id. at 927:4-6.) Laterexpert testimony indicated that the underwear contained "seminal fluid or semen in the fly area"consistent with the victim's blood type. (Dkt. No. 35, Trial Tr.1723:17-19, 1724:4-5, Mar. 18, 1981.)

The next day, March 12th, featured testimony from CharleneBreault, the victim's neighbor and sister of the victim'sgirlfriend. Breault told jurors that only a few days before hisdeath, the victim had answered his door while "zipping up hispants" after making her wait approximately ten minutes. (Dkt. No.31, Trial Tr. 1040:9, 1042:14-16.) In addition, Breault statedthat the victim had recently become irritated with her forpassing through his apartment to get to hers.6 (Id. at1040:11-12)

Later on March 12th, the prosecutor called Holly Bendickson,the victim's girlfriend, who testified that the victim'spersonality had begun to change several months before his death.(Id. at 1084:17-20.) On the morning of the murder, Bendicksontestified that she knocked on the victim's back door. (Id. at1085:12-16.) When he did not respond, she looked through the bedroom window and saw areflection of the victim's bare legs on his bed. (Id. at1088:5-11.) Soon afterwards, she heard the front door open andclose. (Id. at 1103:11-13.) When the victim finally arrived atthe back door ten or fifteen minutes later, he refused toacknowledge that he had been in bed, but instead claimed to havebeen sleeping "dressed up . . . on the couch." (Id. at1089:10-12, 22-23.)7

Bendickson also testified that during a phone conversation withthe victim on the night of the murder, she heard a man with a"very soft voice" enter the victim's kitchen and laugh. WhenBendickson asked who it was, the victim "went silent" and did notrespond until she repeatedly asked, "Frank, are you there, Frank,are you there?" (Id. at 1124-28.)

On March 16th, Captain McCarthy testified that at the close ofhis interrogation on August 8, 1980, Petitioner claimed thatafter he left the victim he went "to Springfield to visit acouple of gay bars." (Dkt. No. 33, Trial Tr. 1292:3-4.) McCarthyadded that, when another detective asked Petitioner "if he was infact a homosexual," Petitioner said that he was. (Id. at1292:21-23, 1293:1.)

The Commonwealth rested on March 19th, and the next day,Petitioner took the stand. During his testimony that day, theprosecutor objected when defense counsel attempted to introducethe jeans Petitioner had been wearing on the night of the murder.(Dkt. No. 37, Trial Tr. 2004:7-8, 18-21.) At a subsequent benchconference, defense counsel explained that the unbloodiedcondition of the jeans suggested Petitioner was not theperpetrator of this very bloody crime. In response, theprosecutor stated: "He was nude when he did it is going to be ourtheory." (Id. at 2005:6-7.) The trial judge allowed the jeansto be marked for identification. (Id. at 2009:11-12.)

During his direct examination, Petitioner repeated the story he eventually told the police, i.e., after leaving thevictim at approximately 10:05 P.M., he visited two gay bars, thenreturned home at approximately 12:15 a.m. to his housemate andlover, George Roy. (Id. at 2066-86.) For his part, Roytestified that he observed nothing unusual about Petitioner'sappearance or demeanor when he returned home and that the cut onPetitioner's hand came from an accident in the kitchen sink themorning after the murder. (Dkt. No. 40, Trial Tr. 2538-40,2543:7-15.) Both men testified that the fear of having the natureof their relationship become public led them initially tomisstate the time Petitioner returned home. (See Dkt. No. 38,Trial Tr. 2180:4-18, Mar. 24, 1981 (Petitioner testified that "itwasn't common knowledge that George and I were gay" and that Royand he agreed not to mention Petitioner's trip to the gay barsfor the good of their respective careers.); Dkt. No. 40, TrialTr. 2584:15-23, Mar. 26, 1981 (Roy testified that he was "acloset case" homosexual, whose fear of having his sexual identityknown led him to tell the Petitioner, "You can't just go down [tothe police station] and answer questions and say you were at gay bars.").)8

The prosecutor, in cross-examining Petitioner and Roy,repeatedly probed the nature of their relationship and theconsistency with which they concealed their sexual identities.For example, on March 24th, after eliciting testimony that Royhad been Petitioner's lover for four years (Dkt. No. 38, TrialTr. 2248:18-23, 2249:1-3), the prosecutor used that informationto suggest that it was Roy's love for Petitioner — rather thanhis fear of having his homosexuality become public — that led himto lie about Petitioner's whereabouts on the night of the murder,(id. at 2266:11-17, 2267:1-2 ("You're asking George Roy [tolie], [who] you've indicated has been your lover for four years. . .?")). Two days later, when cross-examining Roy, the prosecutorasked a series of questions about his attendance and activitiesat gay bars to suggest he was not the "closet case" he claimed tobe. (See Dkt. No. 40, Trial Tr. 2639-51 ("[Mr. Roy], were you hiding your homosexuality when you weredancing with a man in the [gay] bar?").)

At the same time, many of the prosecutor's questions seemed togo beyond conventional efforts to demonstrate bias or underminecredibility. For example, the prosecutor repeatedly askedPetitioner and Roy whether they slept in the same bed. (SeeDkt. No. 39, Trial Tr. 2317:23, 2318:1-5 ("[T]here's a double bedin that room, isn't that right? . . . And George Roy sleeps withyou every evening? . . . And has for four years?); id. at2319:13-19, 2320:2-3 ("Was [your aunt] aware of the fact that you[and Roy] slept in the same bedroom? . . . And you didn'talternate [—] sleep on the couch one night and in that bedroomthe other night? . . . Was it the usual set of circumstances,sir, for you to sleep with Mr. Roy in that bedroom?"); Dkt. No.40, Trial Tr. 2629:16-19, 2630:4 ("Did [Petitioner's aunt] knowwhere you slept at night, [Mr. Roy]? . . . Did she know where Mr.Healy slept? . . . Was she aware you slept together, sir?");id. at 2672:13-14 ("[Mr. Roy] is it fair to say you slept with[Petitioner] every night throughout this trial?"); id. at2687:9 ("[Mr. Roy, have you] [g]one to bed with [Petitioner] through [the last two and one half years]?").)9

In addition, the prosecutor: (1) asked Petitioner if he knewthe victim was bi-sexual (Dkt. No. 38, Trial Tr. 2297:89); (2)asked Roy if, during his relationship with Petitioner, he had"gone to bed with any other men" (Dkt. No. 40, Trial Tr. 2687:11); and (3) attempted unsuccessfully tointroduce one of Petitioner's tee-shirts, which said "SexInstructor, First Lesson Free," (Dkt. No. 39, Trial Tr. 2452-56).

During closing argument On April 2, 1980, Petitioner's counselstated: "Wayne Healy testified . . . he was wearing a pair ofdungarees, a blue short-sleeved shirt . . . and sandals. . . .The police . . . [found] no blood whatsoever on the clothes thatMr. Healy was wearing that night, none whatsoever." (Dkt. No. 44,Trial Tr. 3250:14-19, 3251:3-5.)

In response in his own closing, after reminding jurors oftestimony indicating that "there were certain behavioral changes. . . observed in Frank Chalue just prior to his death" (id. at3272:3-4), the prosecutor stated: You saw the photographs. This man was stabbed 17 times. Blood was going all over the place. Would it be logical . . . that the person who stabbed him could be covered with blood and would it necessary follow . . . that that person be wearing any clothing? Now, you've seen the photographs. . . . [W]hat kind of activity do you think was going on in that bedroom? Ask yourselves that. Don't leave your common sense at home. Does it necessarily follow . . . that that person who was with Mr. Chalue had any clothes on at all? Could you infer . . . that he . . . washed the blood off? Mr. Chalue was naked except for pants below the knees. Do you think you can infer that this person was necessarily clothed that was with him in that bedroom?(Id. at 3293:3-22.)

b. The Investigation into Potentially Improper Communicationswith the Jury Foreman.

According to the Healy I court, During the trial it came to the attention of the prosecutor that the foreman of the jury, Paul L. Briere, might have been subjected to extraneous influences in the form of improper communications by a third person. The third person was a law student, Paul Ramy, who was employed by the same company as Briere. . . . On April 2, 1981, just before closing arguments, the judge . . . examined Ramy under oath, and also questioned the foreman. These sessions were held separately in the judge's lobby in the presence of counsel. Counsel were permitted to question [Ramy] and apparently to suggest questions to the judge to ask the foreman. Ramy testified that Briere had said that he had been made foreman; that many exhibits had been introduced and it had been a "very long day"; that it was a difficult case; that he hoped the jury would be able to bring a transcript to the jury room with them. When Briere was first empanelled, Ramy told him that he could not look at Ramy's evidence books. Briere never commented to Ramy on the evidence, asked him about the admissibility of evidence, or talked to him about what was going on in the courtroom. Briere stated that he had asked Ramy whether a jury were allowed to take a transcript of the trial into the jury room and that he had speculated to Ramey as to whether evidence was being questioned. He said, "The questions I asked were general in nature and have nothing to do with the specifics of the case." He denied having discussed the evidence, its admissibility or exclusion, or any other aspect of the case with Ramy. The judge instructed the foreman that he could consider only the evidence he heard in the courtroom and that he had to take the law from the judge. He told him to tell the rest of the jury that he had been in the lobby discussing scheduling with the judge. The judge also told Briere not to entertain a grudge against either side because he had been questioned. Briere resumed his seat on the jury. The record indicates no objection by either counsel.Healy I, 471 N.E.2d at 373-75.

c. The Balance of the Evidence.

On Friday, April 3rd, the jury began its deliberations. (Dkt.No. 46, Tr. Trial Proceedings 3:14-15.) The following morning,the jury foreman sent the trial judge a note on behalf of thejury requesting clarification on the issues of permissibleinferences, reasonable doubt, and circumstantial evidence. (Dkt.No. 47, Tr. Trial Proceedings 8:20-9:1.) When the jury had notreached a verdict by nine o'clock on Saturday night, theprosecutor unsuccessfully moved for a mistrial. (Id. at22:9-17.)

On Monday, April 6th, a newspaper article appeared in the Holyoke Transcript entitled, "Friends Rally for Healy."(Dkt. No. 49, Tr. Trial Proceedings 14:16-17:19.) This promptedthe prosecutor to move again for a mistrial on April 7th. (Id.at 4:21-23.) In response to this motion, the trial judge stated: this is a very, very, very delicate trial. The Commonwealth's case . . . consists of admissions allegedly made by Mr. Healy and inconsistent — in other words, it's entirely, purely circumstantial evidence, so it's right in the balance in the sense of this, when you have a circumstantial case like this, I can't remember one in many years where a case is so delicately balanced than that even in a small matter, if the jury found out about it, it could tip the balance.(Id. at 24:20-25:5.)

After a voir dire examination revealed that one of thejurors had seen Petitioner's name in the headline (id. at37:15-17, 47:14-22), the prosecutor urged that the juror beremoved, but noted that doing so "would certainly have thepotential of affecting the other remaining members of the panel."(Id. at 50:6-7.) Asked by the court how one juror's removalmight make the others feel, the prosecutor conceded that "there'sno way that you can read into the minds of jurors" (id. at50:17-18), but stressed the closeness of the case: "I think whatwe're after here is a fair judgment — evidence, anything could tip that balance." (Id. at 50:19-21.)

Calling this a "difficult case" (id. at 69:2) in a "delicatebalance" (id. at 69:4), the court ultimately denied theprosecutor's motion for a mistrial and ordered the jurorssequestered, (id. at 69:13,16). The following day, the juryfound Petitioner guilty of first-degree murder. (Dkt. No. 50, Tr.Jury Verdict 6:16-21).

4. Petitioner's Initial Quest for Post-Conviction Relief.

On April 10, 1981, one day after Petitioner was sentenced tolife in prison, defense counsel learned that Ramy and the juryforeman Briere were not the social friends they had claimed to beduring the April 2nd lobby conference, but had, in fact, beenliving together during the trial. (Dkt. No. 51, Tr. LobbyConference 3:5-9, 20-23, Apr. 13, 1981). After speaking withRamy's lawyer in another lobby conference on April 13th, thetrial judge reopened his investigation into the Ramy-Briererelationship and ordered both men to appear for a third lobbyconference on April 16th. The next day, April 14, 1981, thePetitioner appealed his conviction.

On April 16th, Briere stated, under oath, that because of marital problems he had been renting a room from Ramy during the period of the trial. He testified that he had told Ramy during the trial that he could not discuss the case with anyone. He had asked Ramy if the jury could see a transcript and what a "voir dire" was. Ramy had told him that he knew someone who was a spectator at the trial. Ramy had said that that person was known to him only as "Dick." Sometimes at night he would repeat "Dick's" comments to Briere. Briere "tried very hard to be stoic." At various points Ramy said that he heard that [Petitioner] took the stand that day or that there had not been a trial another day. Defense counsel asked Briere if Briere had had a conversation with Ramy about the credibility of [Petitioner's] testimony, along the line indicated by Ramy's statement to his fellow student. Briere replied, "No, I didn't." Ramy's testimony on April 16 was consistent with his earlier testimony as to conversations he had had with Briere about the trial. However, it became clear on April 16 that Ramy had been evasive on April 2 about the fact that Briere was living with him. On April 16 Ramy was extremely evasive, to put it charitably, about what he had said and to whom he had said it relative to . . . what period Briere was living with him; and whether he had told Briere about what had been said at Ramy's first visit to the judge's lobby. Furthermore, Ramy was unable to give any more information about "Dick" other than that "Dick" was not a lawyer or a law student, that he had met "Dick" sixteen years before in a bowling league, and that he had had the conversation about the trial with him at a supermarket meat counter. He swore "[u]nequivocally," though, that "`Dick' was not Paul Briere." The judge had referred to "Dick" as "mysterious" and said that defense counsel probably thought that "Dick" was Briere and would be perfectly right in filing a motion for a new trial. He had advised Ramy to get a lawyer and to return on another day. At the end of the hearing the judge asked Ramy to try to locate "Dick" and to bring him back to the court. The judge said, "[T]he only thing I'm interested in is quite frankly to make sure the verdict was not tainted by the outside news, or by any members of the jury. . . . So, bring in this guy `Dick' . . . if there is such a person because I want to make sure the verdict was not tainted in any way, shape or manner." He set a further hearing for April 28. . . .Healy I, 471 N.E.2d at 374-75.

On April 23, 1981, the trial judge left the Superior Court andbecame an Associate Justice of the Massachusetts Appeals Court.The April 28th hearing did not take place.

On July 15, 1981, Petitioner filed a motion for a new trial inthe Superior Court, noting that the trial judge's "investigationcould not be continued." (Dkt. No. 9, Ex. 2, Def. Mot. New Trial3.) At the close of oral argument on August 12, 1981, theSuperior Court judge who inherited the case denied Petitioner'smotion, ruling that there was "no dangling matter" (Dkt. No. 53,Mot. Hr'g New Trial 23:23-24:1) and "no evidence that the juryverdict was tainted," (id. at 26:18-19). The judge declined tohear from Briere or Ramy, who had been subpoenaed by Petitioner and were at thecourthouse ready to testify. (Id. at 8:2-4) On August 28, 1981,Petitioner filed a motion requesting an evidentiary hearing todetermine "whether `Dick' was Briere or someone else" and whetherthere had been improper contact with a sitting juror. OnSeptember 8, 1981, the same judge denied the motion.

The Petitioner appealed both the denial of his motion for a newtrial and the denial of his request for an evidentiary hearing tothe SJC. In addition, he filed "a second motion for a new trial,together with other motions." Healy I, 471 N.E.2d at 363; seealso id. at 363 n. 1 (noting Petitioner's "motion forpermission to interrogate jurors and witnesses"). On November 28,1984, the SJC denied Petitioner's new motions and affirmed bothhis conviction and the denial of his initial motion for a newtrial. Id. at 363.

In doing so, the SJC determined that the trial judge did noterr "in admitting photographs of the victim's body, taken at thescene, which showed his genitals," or "in admitting a photographwhich showed the back of the victim's body and his bound hands."Id. at 367. The former pictures "had probative value as depictions of the position and condition ofthe body as the police officers found it," and the latter "wasrelevant because it showed the victim's bound hands." Id.(stating that the trial judge's instructions cured "[a]nyprejudice which otherwise might have resulted from theassociation of the body's position with homosexual activity").Whether "the murder was in any way linked to homosexual activitywas," the SJC determined, "properly to be decided by the jury."Id.

The SJC also held that the state trial judge did not err whenhe admitted the pair of undershorts containing semen "consistentwith the victim's blood group." Id. at 368. DespitePetitioner's argument that "the admission of this evidence wasprejudicial, because it suggested masturbation andhomosexuality," the court concluded that these undershorts,"found about four or five feet from the victim's body[,] . . .were especially relevant, since it appears from the record thatthere was no underwear on the body." Id.

In response to Petitioner's claim that testimony concerning thevictim's conduct in the week before his death was irrelevant, theHealy I court held that "it tended to show that . . . thevictim had formed a sexual relationship with someone other than his girlfriend." Id. Whether this "hadanything to do with Chalue's murder" was, the SJC determined,another matter left for the jury. Id. ("We cannot say that thetestimony did not throw light on Chalue's murder.").

The SJC also found "no basis" for the claim that "during theprosecutor's cross-examination of defense witnesses . . . hepersistently made flagrantly prejudicial references to[Petitioner]'s homosexuality." Id. at 372. In particular, thecourt addressed the question posed to Petitioner about whether heknew the victim was bisexual. Id. While the Commonwealthadmitted at oral argument "that there was no evidence at trialthat Chalue was bisexual," the court concluded the question wasnot improper in light of Bendickson's testimony during the voirdire hearing

that the frequency of her sexual relations with Chalue had decreased over the six months prior to the murder and that Chalue had told her that, because at one time in his life he had been raped by his five brothers, he felt that he could not "please a woman."Id. In addition, the SJC found that "[t]here was noimpropriety" in repeatedly asking Petitioner, Roy, andPetitioner's aunt about whether Petitioner and Roy shared a bed, since "[t]he purpose of this questioning was to establishbias on the part of . . . [Petitioner's] most important witness."Id. at 372-73 (noting that Petitioner's aunt "had told thepolice officers that the two took turns sleeping on thecouch").10

The court also held that there was nothing improper about theprosecutor's efforts, during closing argument, to convince thejury that neither Petitioner nor Roy hid their sexual preference.Id. at 373 (suggesting that the aim of such efforts was todiscredit the explanations offered by Petitioner and Roy "as towhy they had agreed to lie about the time [Petitioner] returnedhome after seeing Chalue"). Likewise, the SJC found theinsinuation that Petitioner was naked at the time of the murder a"fair inference[] from the evidence." Id. (citation omitted).While it would have been improper to have suggested thatPetitioner's homosexuality "made him more likely to commitmurder," or that his homosexuality in and of itself "was enoughto link him to Chalue's murder," Healy I found that "[t]he prosecutorsuggested neither." Id. Instead, he merely "insinuated a sexualor homosexual element to Chalue's murder which was . . . fairlyinferable from the evidence in the case." Id.

Finally, the SJC stated that it saw "nothing in the record ofthe lobby conferences of April 2 and April 16 to necessitate afurther evidentiary hearing." Id. at 375. Assuming arguendothat the jury foreman "did express to Ramy his views on[Petitioner's] credibility," this would "not constitute anextraneous influence." Id. Accordingly, after holding that "themotion judge acted within his discretion," id., the SJC deniedPetitioner's "motion for permission to interrogate jurors andwitnesses." Id. at 375 n. 17.

B. Healy II.

In 1994, Petitioner filed a motion to obtain the release ofcertain exhibits in order to conduct DNA testing. The motion wasallowed in part, and the exhibits were sent to a laboratory inCalifornia chosen by Petitioner. On April 11, 1997, Petitionerfiled a third motion for a new trial in the SuperiorCourt11 along with a motion for additional discovery.12 (Dkt. No. 10, Ex. 10, Def.'s Mot. New Trial12-.) In response to that discovery request and subsequentsubpoena, Petitioner finally received the three reports preparedby Dr. Wakefield. (Dkt. No. 10, Ex. 17, Super. Ct. Findings,Rulings, & Order 7.)

On July 30, 1999, Petitioner amended his third motion for a newtrial, arguing that the Commonwealth's failure to disclose thepostmortem report and the note violated his federalconstitutional rights under Brady v. Maryland, 373 U.S. 83(1963). (Dkt. No. 10, Ex. 13, Def.'s Prelim. Mem. Supp. Am. Mot.New Trial 2.) The state Superior Court judge hearing the motionallowed Petitioner's request for an evidentiary hearing, whichwas held on October 26, 2000. On May 8, 2001, the court issuedits findings of fact, rulings of law, and order denyingPetitioner's motion. Among the facts the court found were thefollowing: Two members of the state police and two Holyoke police officers attended the autopsy. Police communicated to Dr. Wakefield during the autopsy that they believed that this was a homosexual murder. Consequently, Dr. Wakefield closely examined the victim's external genitalia and rectum for marks, redness, distension, abrasion, dried seminal fluid, or any other signs of sexual activity. At the direction of police present at the autopsy, Dr. Wakefield took swabs of the victim's mouth and anus to test for the presence of spermatozoa. The test results were negative.(Dkt. No. 10, Ex. 17, Super. Ct. Findings, Rulings, & Order4.)13

On February 13, 2003, the SJC upheld the Superior Court'sruling. Commonwealth v. Healy, 783 N.E.2d 428, 430-31 (Mass.2003) ("Healy II"). In its opinion, the Healy II courtprovided the following summary of the Superior Court judge'sfindings: In support of the amended motion for a new trial, an affidavit of trial counsel was submitted alleging that in preparation for trial he had received and reviewed the final diagnosis, but that he had not seen the postmortem report or the note and was not aware of the taking of any swabs. Following an evidentiary hearing on the issue of what items had been provided in discovery, the motion judge found that the hospital had forwarded both the postmortem report and the final diagnosis to the district attorney's office. However, the district attorney's office gave [Petitioner's] trial counsel only the final diagnosis, not the postmortem report. The judge concluded that this failure on the part of the prosecutor was the product of inadvertence, not wilful misconduct. With respect to the note, the motion judge was unable to determine whether the hospital or Dr. Wakefield had ever turned the note over to the district attorney's office, and hence did not find any form of prosecutorial misconduct with respect to the note. Notwithstanding the prosecutor's failure to provide defense counsel with the postmortem report, the motion judge held that [Petitioner] did not meet his burden of showing that the postmortem report was exculpatory or material. He therefore denied the motion for a new trial.Id. at 432-33 (footnote omitted).

In its decision, the SJC accepted the lower court's findingthat the postmortem report had not been produced. Id. at 433 n.6 (stressing the need to defer to the judge's "assessment ofwitness credibility"). It also found that, although

the note was [not] within the prosecutor's possession or control[,] . . . had the postmortem report been turned over to defense counsel, it would have alerted him to the fact that oral and rectal swabs had been taken for further examination, and competent counsel would presumably have followed up on that information and thereby obtained the test results that are reflected in the note.Id. at 434 n. 8. "Thus," the court continued, "although theCommonwealth's obligation to turn over documents did not extend to the note, the failure to produce the postmortem reporteffectively deprived [Petitioner] of access to the note." Id.Accordingly, the SJC considered whether the postmortem reportand/or the note constituted exculpatory and material evidence forthe purposes of the alleged Brady violation. Id. at 434 n. 8,434.

Ultimately, Healy II held that "even if the prosecution hadsupplied the [postmortem] report to [Petitioner] in timelyfashion, the report or available evidence disclosed by it [i.e.,the note] would not have influenced the jury." Id. at 438(citation omitted). In reaching this decision, the court reasonedthat the suppressed evidence would not have undermined theprosecution's "theory that the murder was connected with someform of sexual encounter." Id. at 436. For the Healy IIcourt, "[t]he absence of spermatozoa in the victim's rectum ormouth mean[t] only that any sexual activity that occurred had notresulted in ejaculation in or around those specific areas." Moresignificant than the findings of the postmortem report and notewere the semen-stained underwear found "[f]our to five feet fromthe victim's body." Id. at 436 n. 10 (citing Healy I,471 N.E.2d at 368) (calling this evidence "especially relevant"). "Similarly," the SJC stated that "the absence of any `marks' or`abnormal findings' on the victim's genitals and rectum mean[t]only that any sexual activity that occurred had not beensufficiently forceful or forcible to have inflicted visibleinjury." Id. at 436; see also id. at 436 n. 11 (noting thatDr. Wakefield's "examination of the victim's rectum revealed `nodistention . . . no redness or tears,' and that examination ofthe victim's genitalia uncovered `no evidence that the penis wasabraded or particularly red'"). Furthermore, [t]here is a wide range of sexual activity, up to and including many forms of sexual assault, that leaves neither sperm nor signs of injury to sexual organs. The Commonwealth presented no evidence, and did not make any suggestion to the jury, concerning precisely what forms of sexual activity may have taken place, or at what point in that sexual activity the encounter had turned violent, and no such precision with respect to the nature of the posited sexual encounter was even remotely necessary to the Commonwealth's case. Thus, that Dr. Wakefield's examination had arguably eliminated a few specific types of sexual activity did not, in any sense, undermine the evidence suggesting that the stabbing had occurred during the course of some form of sexual encounter. We agree with the motion judge's conclusion that the postmortem report and note "would not have provided any more material information or raised any more doubts about the sexual nature of the crime." Moreover, the theory that the murder had occurred during a sexual encounter was of significance to the case in only a narrow, limited sense. The Commonwealth did not even reference this theory in closing argument, except to counter one point raised during defense counsel's closing argument. . . . [T]he Commonwealth's theory did not rely on evidence of any specific form of sexual activity, nor did the Commonwealth suggest any motive for the stabbing of the victim. The only way in which the sexual nature of the encounter had any significance was to establish the reasonable possibility that the perpetrator may have been naked, so that the jury would not attach undue importance to the fact that [Petitioner's] shirt was bloodstained in only one small area. The absence of sperm in the victim's mouth or rectum, and the absence of signs of physical injury to his genitals or rectum, would not have detracted from the Commonwealth's suggestion that the perpetrator may well have been unclothed at the time of the stabbing. [Petitioner] correctly points out that there was extensive reference at trial to [Petitioner's] homosexuality. However, that issue was raised by [Petitioner's] own explanation as to why he had initially lied to the police about his whereabouts on the night of the murder and why he had asked his partner to concoct a false alibi. [Petitioner] claimed that he had been reluctant to tell the police his true whereabouts because he had been at two "gay" bars. To illustrate the implausibility of this proffered explanation, the Commonwealth introduced evidence that [Petitioner] was openly homosexual, with no need or desire to conceal his sexual orientation. This evidence concerning [Petitioner's] homosexuality had nothing to do with any theory how or why the murder had been committed, but was directed instead at the interpretation to be placed on what the Commonwealth had proffered as consciousness of guilt evidence. Id. at 436-37.

"Similarly," the court stated, "as part of its impeachment of[Petitioner's] partner (who had given testimony favorable to[Petitioner]), the Commonwealth introduced evidence of theirlong-standing intimate relationship for the purpose ofdemonstrating bias." Id. at 437 n. 12.

As illustration of the minimal significance that the issue of the hypothesized sexual encounter played at trial, defense counsel's lengthy closing argument nowhere mentioned the fact that the Commonwealth had presented no physical evidence of any such sexual encounter. While [Petitioner] now protests that he would have made great use of the postmortem report and note had he had them at trial, he ignores the fact that, on the evidence presented at trial, he could have but did not register any criticism of the lack of evidence on this issue. We agree that, in the absence of the postmortem report and note, defense counsel would reasonably have refrained from cross-examining Dr. Wakefield on the absence of such evidence (for fear of eliciting some unforeseen harmful evidence). However, once the evidence was closed, defense counsel could have vehemently — and safely — argued to the jury that the prosecution had not presented any physical evidence from the victim's body to corroborate that sexual activity had preceded the murder. The Commonwealth had not presented any evidence of seminal fluid or sperm on the victim, or any evidence of forcible penetration. If, as [Petitioner] now contends, it was crucial to his defense that he cast doubt on the theory that there had been a sexual encounter, it is puzzling that he did nothing whatsoever to cast doubt on that theory with the evidence (or lack thereof) that was presented at trial. We are not confronted with a situation where an argument made at trial could have been made more forcefully if defense counsel had had the withheld evidence. Here, there was no such argument made at trial. The only difference between the argument that could have been made at trial and the argument that could have been made with the postmortem report and note was that the Commonwealth had looked for certain signs of sexual activity and not found those particular signs. If the absence of that particular evidence related to sexual activity had, in fact, been important to the defense, that absence would surely have been pointed out to the jury. Instead, [Petitioner's] closing argument did not in any way contest the inference that the attack on the victim had occurred during the course of some unidentified form of sexual activity. What [Petitioner] now proffers as the "more plausible theory" to explain the condition of the victim's body — that he was "set upon by looters," "tied up simply to incapacitate and silence him," and that "he managed to wriggle free of his boots (possibly dislodging his pants) and was stabbed to prevent his getting away" — is a theory that could have been, but was not, presented to the jury.Id. at 437-38 (citation omitted).

In a footnote, the Healy II court stated that this theory

was presumably not presented for the simple reason that the theory did not comport with other evidence. Aside from the implausibility of the notion that "wriggling free" of his boots would cause the victim's pants to fall to his knees, the suggestion that the crime was perpetrated by "looters" was contradicted by the evidence of no forced entry, no sign of any rummaging through the victim's belongings, and no missing property. It is also difficult to understand why "looters" would bypass numerous empty apartments and seek to loot the one apartment that was occupied by a man and his Doberman pinscher. The contents of the postmortem report would not have helped [Petitioner] overcome the numerous shortcomings of the now proffered theory that "looters" stabbed the victim.Id. at 438 n. 13.

Finally, the SJC rejected Petitioner's "contention that thepostmortem report and note would have helped him establish thatthe police investigation was biased." Id. at 438 ("From thecondition of the victim at the crime scene — semi-naked, bound,pants pulled down, and genitals exposed — it would be reasonablefor the police to consider and investigate the possibility thatthe murder had some connection to sexual activity.").

C. Magistrate Judge Neiman's Report and Recommendation.

On February 14, 2003, one day after the SJC's decision,Petitioner filed this habeas corpus petition, and on July 1,2003, Respondent tendered an answer. On December 1, 2003,Petitioner filed a memorandum in support of his petition as wellas a motion for an evidentiary hearing on the issue of jurortaint. In due course, Respondent filed memoranda opposing boththe petition and the request, and Petitioner filed replies. Inthe meantime, this court referred the matter to Magistrate Judge Neiman. On September 9, 2004, heissued his report and recommendation.

1. Petitioner's Brady Claim.

In contrast to the Healy II court, Magistrate Judge Neimanconcluded that the suppressed, exculpatory evidence would haveraised doubts about the sexual nature of the crime and detractedfrom the prosecution's theory of how and why the murder had beencommitted. In short, the Magistrate Judge found Healy II"[un]reasonably concluded that the postmortem report and noteconcerned an issue of `minimal significance'" and "unreasonablydisregarded the trial judge's observation that the case was soclose that even a `small matter' could have changed the outcome."(Dkt. No. 64, Report & Recommendation 26-27.)

2. Petitioner's Request for an Evidentiary Hearing.

In addition, Magistrate Judge Neiman determined that the AEDPAdid not bar Petitioner's request for an evidentiary hearing sincehe had been diligent in developing his jury taint claim in statecourt, and that Petitioner was entitled to such a hearing underthe standard set forth in Townsend v. Sain, 372 U.S. 293(1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1(1992). 3. Petitioner's Insufficiency of Evidence Claim.

Finally, Magistrate Judge Neiman concluded that while "therewas sufficient circumstantial evidence to convict Petitioner ofmurder based on the record before the jury" (Dkt. No. 64, Report& Recommendation 39), he recommended that, in light of his otherrecommendations, this portion of the petition be denied withoutprejudice.

III. DISCUSSION

A. Petitioner's Brady Claim.

1. Standard of Review.

To establish a constitutional violation predicated upon theprosecution's alleged failure to provide exculpatory evidence,Petitioner must prove that evidence favorable to him wassuppressed by the state and that he was prejudiced by thesuppression. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).Where, as here, "the state court applied the proper rule of lawby asking if the [petitioner] was prejudiced," McCambridge v.Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (citingStrickler, 527 U.S. at 281-82), a federal habeas court maynot grant relief unless the state court's adjudication "involvedan unreasonable application of . . . clearly established Federallaw, as determined by the Supreme Court of the United States," Norton v. Spencer, 351 F.3d 1, 6(1st Cir. 2003) (citing 28 U.S.C. 2254(d)(1)) (2005), cert.denied, 542 U.S. 933 (2004).14 While the Supreme Courthas acknowledged the difficulty of defining the term,"unreasonable," it has clarified that "an unreasonableapplication of federal law is different from an incorrectapplication of federal law." Terry Williams v. Taylor,529 U.S. 362, 410 (2000). Accordingly, a federal court faced with an"unreasonable application" inquiry15 must ask whether thestate court's decision was "objectively unreasonable." Id. at409.

In this circuit, "[t]he fact that one court or even a fewcourts have applied the precedent in the same manner to closefacts does not make the state court decision `reasonable.'" McCambridge, 303 F.3d at 36 (quoting Valdez v.Ward, 219 F.3d 1222, 1229-30 (10th. Cir. 2000), cert. denied,532 U.S. 979 (2001)). See also Norton, 351 F.3d at 8 ("Astate court decision may be `unreasonable' if it is devoid ofrecord support for its conclusions or is arbitrary."). On theother hand, "if it is a close question whether the state decisionis in error, then the state decision cannot be . . .unreasonable." McCambridge, 303 F.3d at 36 (citing Francis S.v. Stone, 221 F.3d 100, 111 (2nd Cir. 2000)) ("[S]ome incrementof incorrectness beyond error is required."). "Importantly, thetest does not demand infallibility: a state court's decision maybe objectively reasonable even if the federal habeas court,exercising its independent judgment, would have reached adifferent conclusion." Rashad v. Walsh, 300 F.3d 27, 35 (1stCir. 2002), cert. denied, 537 U.S. 1236 (2003) (citationsomitted). Cognizant of such strictures, this court now turns tothe specifics of Petitioner's Brady-based due process claim.

2. Analysis.

Because the state pathologist's inability to locate evidence of sexual activity clearly favored Petitioner,16and Healy II held that such evidence was suppressed,17the sole issue before the court is whether this suppression wasprejudicial. To satisfy Brady's prejudice prong, Petitionermust demonstrate that "the favorable evidence could reasonably betaken to put the whole case in such a different light as toundermine confidence in the verdict." Strickler,527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995))."[T]here is no prejudice under Brady . . . unless there is `areasonable probability that, had the evidence been disclosed tothe defense, the result of the proceeding would have beendifferent.'" McCambridge, 303 F.3d at 37 (quoting UnitedStates v. Bagley, 473 U.S. 667, 682 (1985)) (describing this as"the Brady prejudice or materiality standard").

This "reasonable probability" requirement does not mean thatPetitioner must prove that the disclosure of the postmortemreport and/or the note would have led to a different verdict, butrather that the suppression of this material resulted in anoutcome unworthy of confidence. United States v. Schneiderhan,404 F.3d 73, 79 (1st Cir. 2005) (citing Strickler,527 U.S. at 289-90; Kyles, 514 U.S. at 434), cert. denied, 126 S.Ct. 381(2005). As the First Circuit has noted, the "somewhat delphic`undermine confidence' formula" articulated in Strickler"suggests that reversal might be warranted in some cases even ifthere is less than an even chance that the evidence would producean acquittal." Conley v. United States, 415 F.3d 183, 185 (1stCir. 2005) (quoting United States v. Sepulveda, 15 F.3d 1216,1220 (1st Cir. 1993), cert. denied, 512 U.S. 1223 (1994)); seealso United States v. Cunan, 152 F.3d 29, 34 (1st Cir. 1998)(stating that a petitioner may be entitled to a new trial underBrady without convincing "the court of the certainty of adifferent outcome").

Here, the prosecution's failure to turn over the evidence inquestion "undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678. Any conclusion to thecontrary would simply ignore how extremely close a case this wasand fail to recognize the prominent role evidence and argumentregarding homosexuality had in the trial.18

In Healy II, the court weighed the factual import of thewithheld forensic evidence without ever placing it in the contextof a "delicately balanced" case. (Dkt. No. 49, Tr. TrialProceedings 25:3-4.) This was objectively unreasonable. SeeDugas v. Coplan, No. 04-1776, 2005 WL 2840535, at *14 (1st.Cir. Oct. 31, 2005) ("In a close case, the failure of defensecounsel to present certain evidence or effectively challenge thestate's evidence on important issues can be particularlyprejudicial."). A review of the record reveals that the trialjudge himself repeatedly stressed the delicate nature of thiscircumstantial case (see, e.g., id. at 68:22-69:4) and offered his opinion thateven the slightest change in what came before the jury could havemajor ramifications, (id. at 25:4-5 ("[E]ven . . . a smallmatter, if the jury found out about it, . . . could tip thebalance.")).

Respondent contends that the SJC was not "required to expresslydiscuss [the trial judge's] comments." (Dkt. No. 70, Resp't'sObjections Report & Recommendation 17.) While this may be so, thecourt was required to ground its discussion in "the facts andcircumstances of the case." Bui v. DiPaolo, 170 F.3d 232, 243(1st Cir. 1999) (citation omitted), cert. denied,529 U.S. 1086 (2000).

The record is replete with references to serious problems inthe Commonwealth's case. See Healy II, 783 N.E.2d at 431("Evidence that [Petitioner] committed the crime was entirelycircumstantial."). (See also Dkt. No. 10, Ex. 17, Super. Ct.Findings, Rulings, & Order 7 ("The Commonwealth had no percipientwitnesses and no evidence of a motive.").) The defendant had nocriminal record, history of violence, or known antipathy towardsthe victim. Juror concerns about the evidence were reflected intheir requests for further instructions on permissibleinferences, reasonable doubt, and circumstantial evidence; theirdeliberations spanned four days, lasted nearly thirtyhours,19 and ultimately required a sequestrationorder.20

None of this is mentioned in Healy II. Also missing from theopinion is any mention of the prosecutor's two motions for amistrial, or his concession that the case was so close "evidence, anything could tip th[e] balance." In short,at no point did Healy II confront the fact that this was "aborderline case," where "even a relatively small error" wouldhave been "likely to tilt the decisional scales." Ouber v.Guarino, 293 F.3d 19, 33 (1st Cir. 2002) (citation omitted).

Respondent strenuously objects to the consideration of evidencenot found in, or contradicted by, the state court's findings. Insupport of this position, the Commonwealth cites a litany ofcases holding that state court factual findings are presumptivelycorrect and that this presumption extends to factualdeterminations made by appellate courts, as well as factualfindings implicit in state court rulings, including: Parke v.Raley, 506 U.S. 20, 35 (1992); Rashad v. Walsh, 300 F.3d 27,35 (1st Cir. 2002), cert. denied, 537 U.S. 1236 (2003); Gunterv. Maloney, 291 F.3d 74, 76 (1st Cir. 2002); Sanna v. DiPaolo,265 F.3d 1, 7 (1st Cir. 2001); Coombs v. Maine, 202 F.3d 14, 18(1st Cir. 2000); and Flores v. Marshall, 53 F. Supp.2d 509, 514(D. Mass. 1999). Notably, none of these cases involvedallegations of a Brady violation. See Parke,506 U.S. at 22-23 (challenge to "burden-shifting" feature of Kentucky's"persistent felony offender sentencing" statute"); Rashad, 300 F.3d at 30 (rightto a speedy trial claim); Gunter, 291 F.3d at 78 (ineffectiveassistance of counsel claim); Sanna, 265 F.3d at 7 (allegingunconstitutional warrant-less arrest, transgression of Mirandarights, and improper jury instructions); Coombs, 202 F.3d at 17(involuntary confession claim); Flores, 53 F. Supp.2d at 512(involuntary plea claim).

In Trigones v. Bissonnette, 296 F.3d 1 (1st. Cir. 2002), theCommonwealth made a similar effort to "characterize portions ofthe SJC's determination as determinations of fact entitled to apresumption of correctness rebuttable only by clear andconvincing evidence." Id. at 6 n. 4. The First Circuitdisagreed, holding that "§ 2254(d)(2)'s heightened standardapplies only to determinations of basic, primary, or historicalfacts[;] . . . [i]nferences, characterizations of the facts, andmixed fact/law conclusions are more appropriately analyzed under§ 2254(d)(1)." Id. (citations omitted). Here, because "[t]hemateriality question under Brady . . . is a mixed question oflaw and fact," Conley, 415 F.3d at 188 n. 3, the usualpresumption of correctness affords Respondent less protection.See also supra note 3. Respondent emphasizes the SJC's determination that theprosecution "did not make any suggestion to the jury . . .concerning precisely what forms of sexual activity may have takenplace." (Dkt. No. 70, Resp't's Objections 13 (citing Healy II,783 N.E.2d at 436).) While it is true that the prosecutorrefrained from suggesting any particular expression of sexualconduct, he did show jurors pictures of the victim and urged themto imagine "what kind of activity [they thought] was going on inthat bedroom." (Dkt. No. 44, Trial Tr. 3293:11-12.) The preciseeffect of this invitation to speculate is, of course, impossibleto know. However, the fact that jurors were left to mull thequestion without the benefit of Dr. Wakefield's expertobservations undermines confidence in theirdeliberations,21 particularly in view of the SJC's conclusion that the semen-stained underwear found onthe victim's dresser was "especially relevant." Healy II,783 N.E.2d at 436 n. 10 (citing Healy I, 471 N.E.2d at 367-68).

In examining the record and the arguments, this court has bornein mind that "state courts are not required to supply thespecific reasons that a federal court thinks are most persuasivefor upholding the judgment." Bui, 170 F.3d at 243. Everydecision a court makes must reach its last page eventually; manyissues or pieces of evidence must necessarily be addressedcursorily or not at all. This case, however, presents the unusualsituation where the central issue presented by Petitioner —whether the murder occurred during the course of a homosexualencounter — was recognized as very significant by the SJC itself.In Healy I, the SJC noted that the state of the victim's bodymade the link between the murder and homosexual activity a properand relevant question for the jury. Healy I, 471 N.E.2d at 367. Itfurther held that the prosecutor's insinuation during closingargument of a "homosexual element to the murder," was a "fairinference[] from the evidence." Id. (citation omitted). InHealy II, the SJC recognized that the "hypothesized sexualencounter" may have helped to "establish the reasonablepossibility that the perpetrator may have been naked." HealyII, 783 N.E.2d at 437. On this critical issue, the objective,documentary evidence that the Commonwealth wrongfully suppressedtended to show that the victim did not die during a sexualencounter.

That the two suppressed documents were not absolutelyconclusive on the issue has diminished significance in this case,for two reasons. First, to show a Brady violation entitling ahabeas petitioner to a remedy, the petitioner is not requiredto demonstrate conclusiveness. See Schneiderhan,404 F.3d at 79 (citing Strickler, 527 U.S. at 289-90; Kyles,514 U.S. at 434). Second, none of the evidence in the case, certainly notthe prosecutor's, was conclusive; all of it was circumstantial.This court now has the obligation to ask whether theCommonwealth's suppression of clearly relevant evidence on a verysignificant matter deprives it of confidence in the jury verdict, in the context ofan extremely close case. It is not unfair or improper for thiscourt to observe that the SJC's opinion in Healy II provides nohelp, indeed not so much as a comment, on this crucial point.See Hurtado v. Tucker, 245 F.3d 7, 17 (1st Cir. 2001),cert. denied, 534 U.S. 925 (2001) (noting that the TerryWilliams Court found the Virginia Supreme Court's decisionobjectively unreasonable based upon its "failure even to mentionthe defendant's sole argument in mitigation").

In sum, "[t]his case lay on a knife edge, and it would not havetaken much to sway at least some jurors towards acquittal."Dugas, 2005 WL 2840535, at *14. Reluctantly, given thecloseness of the case and the state of the record viewed as awhole, this court has no choice but to conclude that theCommonwealth's undisputed Brady violation did prejudicePetitioner, and the SJC conclusion to the contrary wasobjectively unreasonable. For this reason, Petitioner is entitledto habeas relief.

B. Petitioner's Request for an Evidentiary Hearing.

1. Standard of Review.

Under 28 U.S.C. § 2254(e)(2) (2005), a petitioner who fails to make "a reasonable attempt, in light of the informationavailable at the time, to investigate and pursue his[constitutional] claims in state court" cannot obtain a federalevidentiary hearing, "absent narrow circumstances not applicablehere." Michael Williams v. Taylor, 529 U.S. 420, 429, 435(2000). In order to safeguard state courts' "rightful opportunityto adjudicate federal rights," Michael Williams held that "theprisoner must be diligent in developing the factual record andpresenting, if possible, all claims of constitutional error."Id. at 437. Ordinarily, diligence dictates "that the prisoner,at a minimum, seek an evidentiary hearing in state court in themanner prescribed by state law." Id.

Assuming subsection 2254(e)(2) does not preclude an evidentiaryhearing, the question becomes whether a petitioner is entitled toone under the standard set forth in Townsend v. Sain,372 U.S. 293 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1(1992).22 Under Townsend, a habeas court "must first determine whether petitioner'sallegations, if proved, would establish the right to his relief."Townsend, 372 U.S. at 307. If they would, then the federalevidentiary hearing becomes the proper arena to resolve contestedfactual issues, except in cases where a "full and fair" hearingalready enabled "the state-court trier of fact" to "reliably[find] the relevant facts." Id. at 312-13 (citation omitted).

Wary of articulating "too general [a] standard," the TownsendCourt clarified that a federal habeas court "must grant anevidentiary hearing" if: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.Id. at 313. 2. Analysis.

Petitioner alleges that "third party communications with thejury foreman violated his rights to trial by an impartial juryand to be confronted with the witnesses against him." (Dkt. No.19, Pet'r's Mot. Evidentiary Hr'g 1.) While proof of thesealleged Sixth Amendment violations would establish Petitioner'sright to relief, Respondent maintains that giving Healy theopportunity to prove them at a federal evidentiary hearing wouldbe improper due to his failure to act with the requisitediligence in state court.

The cases the Commonwealth cites in support of this positionare inapposite, making this threshold argument unpersuasive. Forexample, in Alley v. Bell, 307 F.3d 380, 389-90 (6th Cir.2002), cert. denied, 540 U.S. 839 (2003), the court held thatbecause a petitioner had received an evidentiary hearing on theissue of judicial bias in state court, it was incumbent upon himto have used that forum to flesh out any and all judicial biasallegations.

In contrast, this petitioner never had access to such a stateforum.23 Despite the Commonwealth's contention that Healy received three evidentiary hearings in state court, thetrio of April 1981 lobby conferences were conducted by the trialjudge and did not permit Petitioner to offer documentary evidenceor to question the jury foreman directly.24 Moreover,unlike the state evidentiary hearing Petitioner did receive onhis Brady claim in 2000, these lobby conferences did notproduce detailed findings from the trier of fact. (Dkt. No. 9,Ex. 7, Pl.'s Br. Direct Appeal 52 ("If the trial court had madefindings after the post-trial hearing that there was noextraneous influence on the juror, that probably would have beenthe end of the matter.").)

Assuming arguendo that the April 1981 lobby conferences wereevidentiary hearings, they were certainly not the "full" varietymandated by the Townsend Court. Indeed, at the April 16th lobby conference, the state trial judge became sodissatisfied with Ramy's inconsistent answers that he scheduledan additional lobby conference to continue his independentinvestigation. The determination, by the Superior Court judge whoinherited the case, that "there were no matters left undone bythe Trial Judge" is simply not supported by the record asestablished by the trial judge himself.

The Commonwealth's invocation of Dowhitt v. Johnson,230 F.3d 733 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001), isequally unavailing. To be sure, the Fifth Circuit did hold that"[m]ere requests for evidentiary hearings will not suffice."Id. at 758. However, in contrast to the petitioner inDowhitt, who could have presented affidavits of family memberswilling to provide them, id., this petitioner assiduouslysought to develop the factual record. As the Magistrate Judgepointed out: [Petitioner] promptly filed a motion for a new trial . . . and sought an evidentiary hearing with respect thereto. When that request was denied, he filed a timely written objection. When the judge overruled that objection, Petitioner filed a pleading seeking findings of fact. None were made. He then filed a motion for a new trial in the SJC, but that motion was denied as well. (Dkt. No. 64, Report & Recommendation 36.)

To suggest, as Respondent does, that Healy "did notindependently investigate the facts necessary to support a jurorbias claim" is to overlook the constraints under which heoperated. Proscribed by a state rule of professional conduct from"initiat[ing] any communication with a member of the jury withoutleave of court," S.J.C. Rule 3:07, 3.5(d), Petitioner filed a"motion for permission to interrogate jurors and witnesses,"Healy I, 471 N.E. 2d at 363 n. 1. When the Healy I courtdenied the motion, id. at 375 n. 17, the SJC effectively barredHealy from conducting an independent investigation. Ultimately,because he is not "at fault for the deficiency in the state-courtrecord," Michael Williams, 529 U.S. at 433, Section 2254(e)(2)does not apply, and the issue now becomes whether Petitioner'scase fits within a category articulated by Townsend. Becausethe Townsend list is written in the disjunctive, a federalcourt must grant an evidentiary hearing under any one of the sixstated circumstances set forth above.

The Commonwealth contends that by finding "the facts relevantto Healy's claim" Healy I made the requirements of Townsendmoot. (Dkt. No. 70, Resp't's Objections 25 (citing Healy I, 471 N.E.2d at 373-75) ("The SJC . . . made veryspecific findings as to what took place at each hearing,including who testified, the substance of the testimony, thecredibility of the witnesses, and the extent to which counselparticipated in the hearings.").) However, because these wereappellate determinations, and not findings by the state courttrier of fact, they do not obviate the need for an evidentiaryhearing. See Townsend, 372 U.S. at 312-13 (requiring afederal hearing "unless the state-court trier of fact has aftera full hearing reliably found the relevant facts") (emphasisadded). The unavoidable reality is that Petitioner never receivedan opportunity to probe and develop relevant facts on this issue.

Nor is this a case where this court can infer findings of facteither "because [the trial court's] view of the facts is plainfrom his opinion or because of other indicia." Id. at 314. Aspreviously mentioned, the state trial court judge, who began anindependent investigation into third party communications withthe juror foreman, suspended his inquiry and at no time"impliedly found material facts," id., or decided the merits ofa claim. Compare Fryar v. Bissonette, 113 F.Supp.2d 175,179-80 (D. Mass. 1999). Indeed, he himself strongly implied that a further inquiry wasnecessary.25 In short, this is a case where "the materialfacts were not adequately developed at the state-court hearing."Townsend, 372 U.S. at 313.

Finally, Respondent argues that Petitioner "has no evidence toproffer. He simply wants to use the evidentiary hearing as afact-finding exercise." (Dkt. No. 70, Resp't's Objections 26.)Characterizing this as an inappropriate use of this court, theCommonwealth contends that a petitioner who alleges no specificfacts that he would produce at an evidentiary hearing is notentitled to one. Id. (citing David v. United States,134 F.3d 470, 478 (1st Cir. 1998)) ("[A] habeas petitioner must do more than proffer gauzygeneralities or drop self-serving hints that a constitutionalviolation lurks in the wings.").

Rather than forecast the outcome of an evidentiary hearing,Petitioner has focused on the issues that remained unexplored atthe end of the April 16, 1981 lobby conference — issues the trialjudge himself indicated had to be resolved at a future date inorder to ensure "the verdict was not tainted." Accordingly,Petitioner's constitutional claims are not "palpably incredibly,"David, 134 F.3d at 478 (citing Machibroda v. United States,368 U.S. 487, 495 (1962)), and, under the circumstances, hedeserves the chance to "develop[] them in federal court."Michael Williams, 529 U.S. at 443. The court will givePetitioner that opportunity.

C. Petitioner's Insufficiency of Evidence Claim.

1. Standard of Review.

In Jackson v. Virginia, 443 U.S. 307, 324 (1979), the Courtheld that habeas relief for a petitioner alleging insufficientevidence to support his conviction is unwarranted unless "it isfound that upon the record evidence adduced at the trial norational trier of fact could have found proof of guilt beyond a reasonable doubt." In thisinstance, Healy faces the familiar "double hurdle" of showingthat his jury acted irrationally and that the SJC's determinationto the contrary was objectively unreasonable. SeeMcCambridge, 303 F.3d at 43; see also Hurtado,245 F.3d at 18 (providing five guidelines for "aninsufficiency-of-the-evidence case to be used in making theevaluation of `objective unreasonableness' under § 2254(d)(1)").

2. Analysis.

In Healy I, the court held that this was "not a case where,on all the evidence, the question of [Petitioner's] guilt wasleft to conjecture or surmise." Healy I, 471 N.E.2d at 371(citation omitted). Based upon Petitioner's inconsistentstatements to the police and the blood evidence, the SJCdetermined that the trial judge did not err in denyingPetitioner's motion, "made at the close of the Commonwealth'scase, for a required finding of not guilty." Id. at 370-71.

Having reviewed "the totality of the evidence," Hurtado,245 F.3d at 18, this court must conclude that a rational trier offact could have found guilt beyond a reasonable doubt. Indeed, "an extraordinarily close case" (Dkt. No. 10, Ex.18, Mem. Supp. Def.'s Appeal Pet. 2), by definition, is one wherethe evidence could reasonably support more than one outcome.Moreover, because sufficiency-of-the-evidence review restrictsitself to evidence adduced at trial, United States v. Powell,469 U.S. 57, 67 (1984), this court agrees with the Commonwealththat neither of its previous rulings for Petitioner has anybearing on this independent claim. Consequently, the court willdeny this claim for habeas relief with prejudice.

IV. CONCLUSION

Based on the foregoing, the Report and Recommendation, afterde novo review, is hereby adopted, in part. The petition forrelief pursuant to § 2254 (Docket No. 1) is ALLOWED, in part, andthe motion for an evidentiary hearing (Docket No. 19) is herebyALLOWED. The clerk is ordered to set this case for a statusconference to determine the timing, nature, and length of theevidentiary hearing. The court will withhold ordering entry offinal judgment pending completion of this hearing.

REPORT AND RECOMMENDATION REGARDING PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING and PETITION FOR WRIT OF HABEAS CORPUS (Document Nos. 1 and 19) September 9, 2004

In this action, Wayne Blyth Healy ("Petitioner"), a stateinmate serving a life sentence for murder, seeks habeas corpus relief pursuant to28 U.S.C. § 2254, as amended by the Antiterrorism and EffectiveDeath Penalty Act of 1996 ("AEDPA"). Petitioner asserts that hisconviction by a Massachusetts jury on April 8, 1981, was obtainedbecause the state failed to disclose material, exculpatoryevidence requested by him (Ground One), because of insufficientevidence of guilt (Ground Three), and by improper influence onthe jury foreman (Ground Four).26

Currently at issue is Petitioner's motion for an evidentiaryhearing with respect to the juror taint issue, as well as thepetition itself insofar as it addresses the merits of the twoother grounds. Both matters have been referred to this court fora report and recommendation. See 28 U.S.C. § 636(b)(1)(B).For the reasons indicated below, the court will recommend thatPetitioner's motion for an evidentiary hearing be allowed (andthat the merits of Ground Four be decided thereafter), thathabeas corpus relief be granted with respect to Ground One, andthat relief be denied, without prejudice, with respect to GroundThree.

I. BACKGROUND

There is no dispute that the following facts — found by theMassachusetts Supreme Judicial Court ("SJC") in an opinionaddressing Petitioner's direct appeal, Commonwealth v. Healy,471 N.E.2d 359 (Mass. 1984) (hereinafter "Healy I") — areentitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1).27

Between 1 and 1:30 A.M. on August 8, 1980, the victim, Richard Frank Chalue, was heard screaming for help from inside his apartment in Holyoke. Chalue's body was found on his bed shortly before 2 A.M. He had been stabbed fourteen times in the chest, once on either side of the neck, and once on his right thigh. There was also a laceration on his left index finger. His hands had been bound behind him with socks tied together, and he had a gag of socks tied around his mouth. He was naked except for a towel wrapped around his neck and a pair of dungarees half-way down his legs. A pair of boots tied together with socks lay on the floor at the foot of the bed. On the table in the kitchen were a partially empty bottle of rum, two bottles of cola, one of which was partially empty, a glass, and an ashtray containing cigarette butts. The apartment was dark, since there was no electricity as a result of a fire in the building the week before. The victim's Doberman pinscher dog was locked in another room of the apartment. Both the front and the back doors were locked, the front door having been locked with a key from the outside. Since the fire, the victim had been staying alone in the apartment, with the dog guarding his possessions. His girl friend and her two children, with whom he had shared the apartment for the last three years, were staying with her mother in her mother's apartment in a neighboring building. The victim, his girl friend, and the children were to have moved to a new apartment on August 8. On the evening of August 7, the victim had supper with his girl friend and the children in her mother's apartment and then took the children to a park. They returned at about 7:30 P.M., and he left at about 8:20 P.M. At about 9:15 P.M. his girl friend telephoned Chalue's apartment. There was no answer. She called back twice in rapid succession. Chalue answered the third time, sounding as though he had been running and was out of breath. He said that he had been downstairs at the apartment of a neighbor. Then she heard someone walk into the kitchen and say something to Chalue, and she heard them both laugh. She testified that it was the "very soft voice" of a man. Then Chalue became silent. She asked him who was with him. Finally, he answered that it was "Johnny," the neighbor from downstairs. She asked him several times whether everything was all right. He kept responding, "[S]ure, why wouldn't it be?" Johnny Arel [the neighbor] testified at trial that he was not in Chalue's apartment, or indeed in the building, on the night in question. Johnny's brother, Leo, who was staying in the fourth-floor apartment directly below Chalue's, testified that between 9 and 10 P.M. he heard someone going up the stairs; he went out to investigate, and spoke with Chalue, who was outside his own apartment and not within Leo's view. Leo then heard Chalue's front door close. Between midnight and 1 A.M. on August 8 he heard noises in Chalue's apartment as though furniture were being moved. A short time later he heard noises in the hallway and on the stairs outside his front door. When he turned off his radio and approached the door, the noise stopped. Leo was carrying a lantern, and its light was visible through his front door's transom. He heard the noise again twice, and, when he turned the radio off or approached the door, the noise stopped. A short time after the last noise, he heard the police cruisers arrive. A cash register receipt for rum, cola, and ice was found, stained with blood, on the third-floor landing of the front stairs. The Commonwealth's fingerprint expert testified that he had found [Petitioner]'s fingerprints on the bottle of rum and on the partially empty bottle of cola. The Commonwealth's expert serologist testified that his tests indicated that four cigarette butts . . . which had been taken from the ashtray on the victim's kitchen table had been smoked by someone who was a "non-secretor," i.e., who did not secrete blood group substances in his saliva. According to the expert's testimony, 20% of the population is composed of non-secretors. A test of [Petitioner]'s saliva showed that he was a non-secretor. Further, one of the four cigarette butts was found to contain cell material from a person with group B blood. [Petitioner] has group B blood. According to the Commonwealth's expert, 2% of the population are non-secretors and have group B blood. A bloodstained knife was found on the dresser in Chalue's bedroom. The Commonwealth's expert serologist also testified that tests performed on the blood on the knife showed it to contain A and B antigens, which would be consistent with the blood being a mixture of blood of group A and blood of group B. The victim's blood type was group A. Similarly, a long-sleeved shirt found in a search of [Petitioner]'s apartment had a bloodstain containing both A and B antigens. Finally, group B blood was found on the gear shift and brake lever of [Petitioner]'s automobile.28 When the police officers questioned [Petitioner] on the evening of August 8, he had a bandage on the palm of his right hand. The doctor who sutured the wound at about 8:20 A.M. on August 8 testified that in his opinion the wound had been between four and twenty-four hours old at the time he treated it. He testified that the wound could have been caused by the knife found in the victim's bedroom. On August 8 at about 6:15 P.M. William McCarthy, captain of detectives with the Holyoke police department, dialed [Petitioner]'s telephone number, which he had found in the victim's address book next to the initials "W.H." [Petitioner] told McCarthy that it had been three or four months since he had last seen the victim, who had once been married to [Petitioner]'s sister. He said that he had had a telephone call from Chalue at about 7 P.M. the evening before, inviting him to a "get-together," but that he had declined the invitation because he had other plans for the evening. . . . McCarthy asked [Petitioner] if he would come to the police station sometime to talk with the police officers and possibly to help them in the case. [Petitioner] made an appointment to meet with McCarthy at the police station on the following day. About twenty minutes later [Petitioner] called McCarthy to ask whether he could come down to the station that evening, saying that he did not think he would be able to sleep that night "thinking about this." McCarthy agreed to the change. . . . . The [trial] judge found that [Petitioner] was accompanied to the police station by his roommate, George Roy. [Petitioner] was ushered into McCarthy's office, and Roy was asked to wait outside. McCarthy began the interview by asking [Petitioner] the names of the victim's friends, what bars and cafes the victim had frequented, and related questions. Then [Petitioner] made the statement that he had taken Chalue the rum and cola, had spoken to him outside, and had returned home at about 10:15 P.M. McCarthy pointed out that this statement contradicted what [Petitioner] had told him on the telephone. [Petitioner] responded that he had not gone to the apartment and that McCarthy could verify that he arrived home at 10:15 P.M. by asking Roy. When McCarthy went out of the room to question him, Roy stated that on the way to the police station he and [Petitioner] had agreed to say that the defendant got home at about 10:15 P.M., but that it actually could have been 12:30 A.M.Id., 471 N.E.2d at 363-65.

Later in the interview, [Petitioner] told the police officers that after leaving Chalue he had gone to two "gay" bars in Springfield and had arrived home shortly after midnight. When asked by the police officers, he stated that he was a homosexual. At all times on the evening of August 8 [Petitioner] denied having gone into Chalue's apartment.Id. at 365 (other footnotes omitted).

On September 11, 1980, a Hampden County grand jury returned asingle indictment charging Petitioner with murder. A lengthy jurytrial, presided over by Superior Court Judge Kent B. Smith, washeld in March and April of 1981. A particular aspect of thetrial, discussed more fully below, is that Judge Smith, on thethird day of deliberations, responded to a mistrial motion byremarking to counsel that the trial was "so delicately balanced . . .that even . . . a small matter . . . could tip the balance."(Document No. 49 ("4/7/81 Transcript") at 25.) The next day,April 8, 1981, the jury found Petitioner guilty of first-degreemurder. Petitioner was thereafter sentenced to life in prison.

On July 15, 1981, Plaintiff filed a motion for a new trial,claiming extraneous influence on the jury foreman. (Further factswith respect to this issue are addressed below.) Since JudgeSmith had by then been appointed to the Massachusetts AppealsCourt, a new judge heard the motion and denied it on August 12, 1981. Petitioner appealed. In the meantime,Petitioner had filed a direct appeal as well as a second motionfor a new trial based on juror taint. The appeals wereconsolidated by the SJC. On November 28, 1984, the SJC affirmedPetitioner's conviction and denied his motions for a new trial.See Healy I, 471 N.E.2d 359.

On April 11, 1997, Petitioner filed a third motion for a newtrial in the Superior Court.29 He also filed a motion foradditional discovery. In response to that discovery request and asubsequent subpoena, the Commonwealth produced three reportsprepared by Dr. H. Paul Wakefield, a pathologist at HolyokeHospital, who had performed Chalue's autopsy on August 8, 1980,at the direction of the medical examiner. According toPetitioner, one of the reports had been provided in pretrialdiscovery, but the other two — described below as the "postmortemreport" and the "note" — had not.30

On July 30, 1999, Petitioner amended his third motion for anew trial, arguing that the Commonwealth's failure to disclosethe postmortem report and the note — which he labels "exculpatory and material" evidence —violated his federal constitutional rights under Brady v.Maryland, 373 U.S. 83 (1963). The Superior Court allowedPetitioner's request for an evidentiary hearing, but ultimatelydenied the amended motion for a new trial. On February 13, 2003,the SJC upheld the Superior Court's ruling, Commonwealth v.Healy, 783 N.E.2d 428 (Mass. 2003) (hereinafter "HealyII"), issuing the following findings of fact which, again, areundisputedly entitled to a presumption of correctness pursuant tosection 2254(e)(1).

The reports from Dr. Wakefield . . . consist of the following. Dr. Wakefield authored a four-page report dictated shortly after the August 8, 1980, autopsy and bearing the heading "Holyoke Hospital Pathology Department Post-Mortem Examination" (postmortem report). In the first paragraph of the postmortem report, Dr. Wakefield indicated that the victim's genitalia were "examined closely" and that "no evidence of marks of recent origin" were identified. The rectum was "similarly viewed revealing no abnormal findings on the external surface." The postmortem report went on to note that "[s]mears [were] made by use of a swab from both the mouth as well as rectum to be examined under the microscope." The next document at issue was a handwritten note (note) of Dr. Wakefield dated August 10, 1980, two days after the autopsy, reflecting the results of the microscopic examination of the oral and rectal smears: "Smears made from mouth and rectum fail to reveal spermatozoa present." The final document was a two-page report dated November 28, 1980, entitled "Autopsy Report," that included a subheading of "Final Diagnosis" (final diagnosis). The final diagnosis included the cause of death and gross anatomical description, but did not make any reference to examination of the victim's rectum and genitalia, the taking of any swabs or smears, or the results of any examination of swabs or smears. In support of the amended motion for a new trial, an affidavit of trial counsel was submitted alleging that in preparation for trial he had received and reviewed the final diagnosis, but that he had not seen the postmortem report or the note and was not aware of the taking of any swabs. Following an evidentiary hearing on the issue of what items had been provided in discovery, the motion judge found that the hospital had forwarded both the postmortem report and the final diagnosis to the district attorney's office. However, the district attorney's office gave [Petitioner]'s trial counsel only the final diagnosis, not the postmortem report. The judge concluded that this failure on the part of the prosecutor was the product of inadvertence, not wilful misconduct. With respect to the note, the motion judge was unable to determine whether the hospital or Dr. Wakefield had ever turned the note over to the district attorney's office, and hence did not find any form of prosecutorial misconduct with respect to the note. Notwithstanding the prosecutor's failure to provide [Petitioner's] counsel with the postmortem report, the motion judge held that [Petitioner] did not meet his burden of showing that the postmortem report was exculpatory or material. He therefore denied the motion for a new trial.Id., 783 N.E.2d at 432-33 (footnote omitted).

In its decision, the SJC accepted the motion judge's findingthat neither the postmortem report nor the note were produced.Id. at 434 & n. 8. The SJC also found that, although "the notewas [not] within the prosecutor's possession or control[,] . . .had the postmortem report been turned over to defense counsel, itwould have alerted him to the fact that oral and rectal swabs hadbeen taken for further examination, and competent counsel wouldpresumably have followed up on that information and thereby obtained the test results thatare reflected in the note." Id. at n. 8. "Thus," the courtcontinued, "although the Commonwealth's obligation to turn overthe documents did not extend to the note, the failure to producethe postmortem report effectively deprived [Petitioner] of accessto the note." Id. Accordingly, while the "sole issue" beforethe SJC was "whether the evidence withheld by the prosecution[i.e., the postmortem report] would qualify as exculpatory andmaterial such that the failure to produce it would constitute aviolation of due process," the court "also examine[d] whether thenote would qualify as exculpatory and material." Id. at 434 &n. 8. In the end, the court, "[h]aving reviewed the entire trialtranscript," was "confident that, even if the prosecution hadsupplied the [postmortem] report to [Petitioner] in timelyfashion, the report or available evidence disclosed by it [i.e.,the note] would not have influenced the jury." Id. at 438(citations omitted).

Petitioner filed the instant habeas corpus petition onFebruary 14, 2003, one day after the SJC's decision. The petitionwas originally drawn to Senior District Judge Frank H. Freedmanand Respondent's answer was filed on July 1, 2003. On October 2,2003, following Judge Freedman's untimely death, the case wasredrawn to Judge Ponsor who, on October 14, 2003, referred thepetition to this court for a report and recommendation. Thiscourt held a scheduling conference on November 5, 2003, and onFebruary 5, 2004, over thirty volumes of transcripts were filed. In the meantime, on December 1, 2003, Petitioner filed amemorandum in support of his petition as well as a motion for anevidentiary hearing on the issue of juror taint. In due course,Respondent tendered an opposition, Petitioner filed a replybrief, and the court heard oral argument. At oral argument, theparties discussed the fact that Petitioner's arguments withrespect to Grounds One and Three cited only subsection (d)(1) ofthe habeas statute — which pertains to legal issues — butthat it appeared that certain factual issues with respect toGround One, the Brady claim, were being challenged pursuantto subsection (d)(2).31 Accordingly, the court grantedPetitioner leave to submit a supplemental brief addressingsubsection (d)(2), which he did on May 7, 2004. Respondent fileda supplemental opposition on May 25, 2004.

II. DISCUSSION

The following discussion has three parts. First, the courtwill consider whether habeas corpus relief should be granted with respect toPetitioner's Brady claim (Ground One) pursuant to eithersubsection (d)(1) or (d)(2). Second, the court will analyzePetitioner's motion for an evidentiary hearing on the juror taintissue (Ground Four). Third, the court will address thesufficiency of evidence claim (Ground Three). In the end, thecourt will recommend that habeas corpus relief be granted withrespect to Ground One pursuant to subsection (d)(1), that thedistrict court should hold an evidentiary hearing with respect toGround Four and, based on the current record, that Petitioner'ssufficiency of the evidence challenge, Ground Three, be deniedwithout prejudice.

A. Petitioner's Brady Claim (Ground One)

In the state courts, as here, Petitioner asserted that theprosecutor's failure to disclose the postmortem report and thenote violated his federal due process rights as delineated inBrady. To make such a Brady-based due process claim, acriminal defendant must demonstrate that (1) the governmentsuppressed the evidence; (2) the evidence was favorable to thedefendant because it was exculpatory or impeaching; and (3) thedefendant was prejudiced by the suppression. Strickler v.Greene, 527 U.S. 263, 281-82 (1999) (citing Brady,373 U.S. at 87).

For habeas purposes, however, a further showing is required,the contours of which depend on the particular subsection ofsection 2254 under which the petitioner is proceeding. (See n.6, supra. ) To succeed under subsection (d)(2), a petitioner must demonstrate that the state court's Bradydecision "was based on an unreasonable determination of thefacts in light of the evidence presented in the State courtproceeding." 28 U.S.C. § 2254(d)(2) (emphasis added). Undersubsection (d)(1), a petitioner may make a legal challenge,namely, that the state court's decision was either "contrary to"Brady and its progeny or that the state court's decision"involved an unreasonable application of" Brady.28 U.S.C. § 2254(d)(1). See generally McCambridge v. Hall, 303 F.3d 24,35-36 (1st Cir. 2002).

In the instant case, there is no argument on Petitioner's partthat the SJC's decision in Healy II was "contrary to" clearlyestablished Brady jurisprudence. Compare McCambridge303 F.3d at 35. Rather, the parties' dispute centers on whether theSJC's decision was "based on an unreasonable determination of thefacts" (subsection (d)(2)) or "involved an unreasonableapplication of" Brady and its progeny (subsection (d)(1)).The court will consider the dispute in that order.

1. Subsection (d)(2)

As described, habeas relief may be granted pursuant tosubsection (d)(2) if the state court's Brady decision "wasbased on an unreasonable determination of the facts in light ofthe evidence presented in the State court proceeding."28 U.S.C. § 2254(d)(2). Subsection (d)(2) "applies exclusively todeterminations of basic, primary, or historical facts."Dolinger v. Hall, 302 F.3d 5, 8 n. 5 (1st Cir. 2002) (citationand internal quotation marks omitted). As the First Circuit hasmade clear, "basic, primary, or historical facts" are "facts inthe sense of a recital of external events and the credibility of their narrators,"Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001) (citation andinternal quotations marks omitted), not "[i]nferences,characterizations of the facts, or mixed fact/law conclusions,"Trigones v. Bissonnette, 296 F.3d 1, 6 n. 4 (1st Cir. 2002)(citation and internal quotation marks omitted).

As described, Petitioner's Brady claim initially invokedonly subsection (d)(1). Subsection (d)(2) was pursued only aftera discussion as to certain "facts" at oral argument, followingwhich the court allowed Petitioner to file a supplementalmemorandum of law. In his supplement, Petitioner reiterated hisoriginal position: that he meant to challenge only "the SJC'scharacterization of the facts and not the historic factsthemselves" and, therefore, that he believed that "he properlyraised his issues [solely] under 28 U.S.C. § 2254(d)(1)."(Document No. 61 (hereinafter "Petitioner's Supplement") at 5.)Nevertheless, Petitioner argued "in the alternative, [that] theSJC's adjudication of [his] Brady claim requires relief undersection 2254(d)(2)." (Id. at 7.) Having now considered therecord which has been provided, the court believes thatPetitioner's Brady claim is indeed a legal one which properlyarises under the "unreasonable application" prong of subsection(d)(1), not a factual challenge subject to subsection (d)(2).

To explain, some further background is required. The sum andsubstance of Petitioner's Brady claim derives from the SJC'slegal analysis in Healy II. There, the SJC held that there was no Brady violation because thepostmortem report and the note, had they been disclosed, "wouldnot have influenced the jury." Id., 783 N.E.2d at 438. In soholding, the court engaged in a "discussion," quoted here in itsentirety:32

[Petitioner] overstates the factual import of the postmortem report and note when he argues that they would have contradicted the theory that the murder was connected with some form of sexual encounter. The absence of spermatozoa in the victim's rectum or mouth means only that any sexual activity that occurred had not resulted in ejaculation in or around those specific areas. Similarly, the absence of any "marks" or "abnormal findings" on the victim's genitals and rectum means only that any sexual activity that occurred had not been sufficiently forceful or forcible to have inflicted visible injury. There is a wide range of sexual activity, up to and including many forms of sexual assault, that leaves neither sperm nor signs of injury to sexual organs. The Commonwealth presented no evidence, and did not make any suggestion to the jury, concerning precisely what forms of sexual activity may have taken place, or at what point in that sexual activity the encounter had turned violent, and no such precision with respect to the nature of the posited sexual encounter was even remotely necessary to the Commonwealth's case. Thus, that Dr. Wakefield's examination had arguably eliminated a few specific types of sexual activity did not, in any sense, undermine the evidence suggesting that the stabbing had occurred during the course of some form of sexual encounter. We agree with the motion judge's conclusion that the postmortem report and note "would not have provided any more material information or raised any more doubts about the sexual nature of the crime." Moreover, the theory that the murder had occurred during a sexual encounter was of significance to the case in only a narrow, limited sense. The Commonwealth did not even reference this theory in closing argument, except to counter one point raised during defense counsel's closing argument. In his closing argument, defense counsel had argued to the jury that, given the number of stab wounds and the extremely bloody crime scene, the perpetrator's clothes would have had extensive bloodstains. By comparison, although blood of the victim's type was found on [Petitioner]'s shirt, the amount was quite small. The prosecutor's closing argument responded to this defense argument by pointing out the distinct possibility that the perpetrator had no clothes on at the time of the stabbing: "This man was stabbed seventeen times. Blood was going all over the place. Would it be logical, Ladies and Gentlemen, that the person who stabbed him could be covered with blood and would it necessarily follow, Ladies and Gentlemen, that that person be wearing any clothing? Now, you've seen the photographs, Ladies and Gentlemen. The one I just showed you, what kind of activity do you think was going on in that bedroom? Ask yourselves that. Don't leave your common sense at home. Does it necessarily follow, Ladies and Gentlemen, that that person who was with [the victim] had any clothes on at all? Could you infer, Ladies and Gentlemen, that he washed the blood off and walked through the bedrooms and walked into the kitchen and washed that blood off? [The victim] was naked except for pants below his knees. Do you think you can infer that this person was necessarily clothed that was with him in that bedroom?" As indicated above, the Commonwealth's theory did not rely on evidence of any specific form of sexual activity, nor did the Commonwealth suggest any motive for the stabbing of the victim. The only way in which the sexual nature of the encounter had any significance was to establish the reasonable possibility that the perpetrator may have been naked, so that the jury would not attach undue importance to the fact that [Petitioner]'s shirt was bloodstained in only one small area. The absence of sperm in the victim's mouth or rectum, and the absence of signs of physical injury to his genitals or rectum, would not have detracted from the Commonwealth's suggestion that the perpetrator may well have been unclothed at the time of the stabbing. [Petitioner] correctly points out that there was extensive reference at trial to [Petitioner]'s homosexuality. However, that issue was raised by [Petitioner]'s own explanation as to why he had initially lied to the police about his whereabouts on the night of the murder and why he had asked his partner to concoct a false alibi. [Petitioner] claimed that he had been reluctant to tell the police his true whereabouts because he had been at two "gay" bars. To illustrate the implausibility of this proffered explanation, the Commonwealth introduced evidence that [Petitioner] was openly homosexual, with no need or desire to conceal his sexual orientation. This evidence concerning [Petitioner]'s homosexuality had nothing to do with any theory how or why the murder had been committed, but was directed instead at the interpretation to be placed on what the Commonwealth had proffered as consciousness of guilt evidence. As illustration of the minimal significance that the issue of the hypothesized sexual encounter played at trial, defense counsel's lengthy closing argument nowhere mentioned the fact that the Commonwealth had presented no physical evidence of any such sexual encounter. While [Petitioner] now protests that he would have made great use of the postmortem report and note had he had them at trial, he ignores the fact that, on the evidence presented at trial, he could have but did not register any criticism of the lack of evidence on this issue. We agree that, in the absence of the postmortem report and note, defense counsel would reasonably have refrained from cross-examining Dr. Wakefield on the absence of such evidence (for fear of eliciting some unforeseen harmful evidence). However, once the evidence was closed, defense counsel could have vehemently — and safely — argued to the jury that the prosecution had not presented any physical evidence from the victim's body to corroborate that sexual activity had preceded the murder. The Commonwealth had not presented any evidence of seminal fluid or sperm on the victim, or any evidence of forcible penetration. If, as [Petitioner] now contends, it was crucial to his defense that he cast doubt on the theory that there had been a sexual encounter, it is puzzling that he did nothing whatsoever to cast doubt on that theory with the evidence (or lack thereof) that was presented at trial. We are not confronted with a situation where an argument made at trial could have been made more forcefully if defense counsel had had the withheld evidence. Here, there was no such argument made at trial. The only difference between the argument that could have been made at trial and the argument that could have been made with the postmortem report and note was that the Commonwealth had looked for certain signs of sexual activity and not found those particular signs. If the absence of that particular evidence related to sexual activity had, in fact, been important to the defense, that absence would surely have been pointed out to the jury. Instead, [Petitioner]'s closing argument did not in any way contest the inference that the attack on the victim had occurred during the course of some unidentified form of sexual activity. What [Petitioner] now proffers as the "more plausible theory" to explain the condition of the victim's body — that he was "set upon by looters," "tied up simply to incapacitate and silence him," and that "he managed to wriggle free of his boots (possibly dislodging his pants) and was stabbed to prevent his getting away" — is a theory that could have been, but was not, presented to the jury. As to [Petitioner]'s contention that the postmortem report and note would have helped him establish that the police investigation was biased, we reject the suggestion that mere examination and testing of the victim's body for signs of sexual activity somehow suggests police bias. From the condition of the victim at the crime scene — semi-naked, bound, pants pulled down, and genitals exposed — it would be reasonable for the police to consider and investigate the possibility that the murder had some connection to sexual activity. Having reviewed the entire trial transcript, we are "confident that, even if the prosecution had supplied the report to [Petitioner] in timely fashion, the report or available evidence disclosed by it would not have influenced the jury." As such, we find no error in the judge's denial of [Petitioner]'s third motion for a new trial.Id. at 436-38 (citations and footnotes omitted).

There are obviously several factual statements in theabove discussion, e.g., that "[t]he Commonwealth presented noevidence, and did not make any suggestion to the jury, concerningprecisely what forms of sexual activity may have taken place, orat what point in that sexual activity the encounter had turnedviolent." See id. at 436-37. The focus of Petitioner'sBrady claim, however, is on the SJC's legal conclusionthat the "sexual encounter" was "of minimal significance" attrial, id. at 437. (Document No. 18 (hereinafter"Petitioner's Habeas Brief") at 24.) As Petitioner acknowledges,his challenge is directed not at "basic, primary, or historicalfacts" relevant to subsection (d)(2), but on "[i]nferences,characterizations of the facts, or mixed fact/law conclusions"under the "unreasonable application" prong of subsection (d)(1).It is to that provision, therefore, which the court now turns. 2. Subsection (d)(1)

With respect to Petitioner's "unreasonable application"challenge, there is no dispute that Petitioner has satisfied thefirst two Brady elements, namely, that (1) the prosecutionsuppressed the postmortem report (and by extension the note),albeit not intentionally, and that (2) the suppressed evidencewould have been favorable to Petitioner. At issue, therefore, isthe third Brady element, the question of materiality andprejudice. In particular, Petitioner argues that the SJC'sdecision — that he was not prejudiced by suppression of theimmaterial evidence — was an "unreasonable application" ofBrady. Respondent disagrees. The court believes thatPetitioner has the stronger argument.

As a preliminary matter, however, the court rejectsPetitioner's "police bias" argument, i.e., that the SJCunreasonably determined that the suppressed evidence would nothave materially supported Petitioner's theory of police bias. Tobe sure, Respondent does not dispute "the fact that the policeinstructed [Dr. Wakefield] to conduct a microscopic search forsigns of homosexual activity" or that the police were admittedlyinvestigating a "sexual activity" connection. Healy II,783 N.E.2d at 435, 438. In the court's view, however, the SJC'sconclusion — that the suppressed evidence would not have helpeddemonstrate police bias — was a reasonable application of federallaw. As the SJC itself stated, "[f]rom the condition of thevictim at the crime scene — semi-naked, bound, pants pulled down,and genitals exposed — it would be reasonable for the police toconsider and investigate the possibility that the murder had some connectionto sexual activity." Id. at 438.

The court reaches a different conclusion, however, withrespect to the core of Petitioner's Brady claim regarding theSJC's determination, quoted in detail above, that the "sexualencounter" itself was "of minimal significance" at trial.Petitioner attacks at least three aspects of this determination:(1) that the postmortem report and note "would not have providedany more material information or raised any more doubts about thesexual nature of the crime," Healy II at 436; (2) that thereport and note also "would not have detracted from theCommonwealth's suggestion that the perpetrator may well have beenunclothed at the time of the stabbing," id. at 437; and (3)that the Commonwealth's "evidence concerning [Petitioner]'shomosexuality had nothing to do with any theory how or why themurder had been committed," id. (Petitioner's Supplement at6.) On balance, the court agrees with Petitioner — and hencedisagrees with Respondent and the SJC — that the prosecutorintentionally elicited a wide variety of evidence from which thejurors could infer that the victim was murdered because of hishomosexual relationship with Petitioner and in the midst ofhomosexual activity with him. (See Petitioner's Habeas Brief at26.)

As Petitioner points out, there is ample evidence that theprosecutor was pursuing a theory of the case based onPetitioner's alleged homosexual relationship and/or activity withthe victim. For example: • In preparing to pick a jury, the prosecutor asserted (1) that the jury had "a right to consider" the connection between Petitioner's homosexuality and the inferably "homosexual related murder" and (2) that the inference of "homosexual related murder" might be drawn from photographs of the victim. The photographs, introduced over Petitioner's objection, depicted the victim as he was found: with his hands bound, his mouth gagged, and his pants pulled down to mid-thigh, exposing his genitals and buttocks.

• The prosecutor introduced a pair of the victim's undershorts, found on his dresser, which bore semen stains consistent with the victim's blood type. • Holly Bendickson, the victim's girlfriend, testified in the prosecution's case-in-chief about changes in the victim's "mood or personality" prior to the murder. For example, she noted (1) the fact that he had been "sort of picky and [she] couldn't seem to make him happy"; (2) his denial that he had been sleeping, bare-legged, on the bed after she had seen him there from outside the apartment; (3) his claim that he had been sleeping "dressed up" on the couch and that he "didn't want to talk about it"; and (4) his delay in answering her knock at the back door during which time she heard the front door open and shut. • Bendickson also testified that on the night of the murder, while speaking to the victim on the telephone, she overheard "a little laughter" and a "very soft man's voice" in the background and that the victim was evasive about who was with him. • Charlene Breault, Bendickson's sister and the victim's neighbor, testified that he had recently made her wait at his back door for about ten minutes before answering and was "zipping up his pants" when he finally came to the door. • Breault also testified that although she had been "cutting through" the victim's apartment for some time, he recently became angry with her for doing so. • The prosecutor unsuccessfully tried to introduce testimony that the victim and Bendickson's sex life had deteriorated in the months prior to his death. He urged that the evidence would show that "during that period his sexual preference or amounts of sexual activity seemed to change and [that] . . . he had questions about his own sexual identity." Evidence of the victim's sexual preference was relevant, the prosecutor argued, because of the "photographs of the body," the evidence of "semen in the underwear" and the evidence that Petitioner "is a homosexual." • The prosecutor introduced evidence that Petitioner's telephone number was found in the victim's address book, discreetly identified only by his initials, "W.H.," and that a detective asked Petitioner "if he was a homosexual." • There was evidence that a person, inferably Petitioner, bought rum and cola the night of the murder and told the clerk he "was going to a party." • The prosecutor claimed that the killer "was nude when he did it" and, accordingly, objected to Petitioner introducing his unbloodied jeans as evidence. • The prosecutor elicited cumulative, uncontested evidence that Petitioner was a homosexual living in a sexual relationship with another man and sleeping in the same bed. • While probing whether Petitioner was a "closet homosexual," the prosecutor asked whether he had "any knowledge that Richard Chalue was bi-sexual" and whether or not Petitioner had "a relationship with Richard Chalue." • In cross-examining Petitioner, the prosecutor attempted to introduce evidence that Petitioner owned a tee-shirt printed with the words "Sex Instructor, First Lesson Free."(Id. at 26-28.)

Possibly the most striking indication of the prosecutor'shomosexual or sex-based theory of the case is gleaned from hisclosing argument. In summarizing the evidence, the prosecutordirected the jurors' attention to Bendickson and Breault's testimony that the victim's behaviorhad changed just before his death. He also reminded the jury ofthe evidence that someone, inferably Petitioner, bought rum andcola the night of the murder and told the clerk he "was going toa party." Finally, he directed the jurors' attention to thephotographs and asked: "[W]hat kind of activity do you think wasgoing on in that bedroom?"; and "[W]ould [it] necessarily follow. . . that that person be wearing any clothing?"; and "Do youthink you can infer that this person was necessarily clothed thatwas with him in that bedroom?" Against this background, thealleged "sexual encounter" between Petitioner and the victim wasanything but minimal in its significance at trial.

To be sure, the SJC, in Healy II, downplayed theprosecutor's closing remarks by concluding that "[t]he only wayin which the sexual nature of the encounter had any significancewas to establish the reasonable possibility that the perpetratormay have been naked, so that the jury would not attach undueinfluence to the fact that [Petitioner]'s shirt was bloodstainedin only one small area." Id., 783 N.E.2d at 437. Thiscomment, in this court's view, ignores the reality of the trial.As Petitioner points out, the SJC itself, nearly a decade earlierin Healy I, made numerous statements emphasizing thesexual nature of the crime and the prosecutor's pursuit of ahomosexual or sex-based theory of the case. For example, the SJCruled in Healy I (1) that "a question properly to be decidedby the jury" was whether the photographs "suggested that themurder was in any way linked to homosexual activity"; (2) that the underwearevidence was "especially relevant, since it appears from therecord that there was no underwear on the body"; (3) thatBendickson and Breault's testimony "tended to show that in theweek before his death the victim had formed a relationship withsomeone other than his girl friend," the significance of whichwas "best left as a matter for the jury to decide"; and (4) thatthe prosecutor's closing argument, in essence, "insinuated asexual or homosexual element to Chalue's murder" which was"fairly inferable from the evidence in this case." Healy I,471 N.E.2d at 367-68, 373.

In a similar vein, the court believes that the SJC's statementin Healy II about "sexual activity" — that "[t]here is a widerange of sexual activity, up to and including many forms ofsexual assault, that leaves neither sperm nor signs of injury tosexual organs" — fails to explain away the materiality of thesuppressed evidence. Aside from the fact that the SJC did notidentify a single example of such sexual activity, the crimescene, as Petitioner congently asserts, "reeked of brutality andloss of control. Had the jurors heard Dr. Wakefield's expertobservations — virtually ruling out ejaculation or any brutal orout-of-control sex involving the victims' [sic] genitals, anus ormouth — they [might] have doubted that he was party to any sexualacts they might have imagined." (Petitioner's Supplement at 9(emphasis omitted).)

Of course, the mere fact that the prosecutor may have intendedto infer that the victim was murdered because of his homosexualrelationship with Petitioner and/or in the midst of homosexual activity does not, afortiori, mean that suppression of the postmortem report andnote was material and prejudicial for Brady purposes. SeePennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (holding thatsuppressed exculpatory evidence is deemed material andprejudicial "only if there is a reasonable probability that, hadthe evidence been disclosed to the defense, the result of theproceeding would have been different") (citations and internalquotation marks omitted). However, without a "homosexual" or a"sexual" element — which the postmortem report and note certainlytended to discount — Petitioner's motive was significantlylessened. Put differently, without his homosexual or sex-basedmurder theory, the prosecutor was left with a responsiblyemployed defendant who had no history of violence, no criminalrecord and no known animus against the victim. Accordingly, andwith all due respect to the SJC, this court deems the postmortemreport and note to be material and, thus, their suppressionprejudicial to Petitioner's defense. See Kyles v. Whitley,514 U.S. 419, 434 (1995) ("The question is not whether thedefendant would more likely than not have received a differentverdict with the evidence, but whether in its absence he receiveda fair trial, understood as a trial resulting in a verdict worthyof confidence.").

There is at least one other important, perhaps clinching,indicator that the absence of the postmortem report and note wereprejudicial to Petitioner's defense. As Petitioner argues, theSJC ignored Judge Smith's stated view during jury deliberations that the trial was "so delicately balancedthat even . . . a small matter . . . could tip the balance."(4/7/81 Transcript at 25.) Ignoring this statement, Petitionerargues — and the court agrees — is further evidence of theunreasonable application of Brady by the SJC.

The context surrounding Judge Smith's statement is importantfor purposes of this analysis. Jury deliberations spanned fourdays and consumed nearly thirty hours. On the first day, thejurors sought re-instruction on the issues of permissibleinferences, reasonable doubt, and circumstantial evidence. Whenthe jury had not reached a verdict by the end of that day, theprosecutor unsuccessfully moved for a mistrial. The prosecutoragain moved for a mistrial on the third day of deliberations,this time because of the publication of a newspaper article inthe Holyoke Transcript entitled "Friends Rally for Healy."This motion prompted Judge Smith to state, in no uncertain terms,that he too viewed it as an extremely close case: There is one thing I wish to point out, I don't think I have to point out to both sides, this is a very, very, very delicate trial. The Commonwealth's case on this trial consists of admissions allegedly made by Mr. Healy and inconsistent — in other words, it's entirely, purely circumstantial evidence, so it's right in the balance in the sense of this, when you have a circumstantial case like this, I can't remember one in many years where a case is so delicately balanced than that even in a small matter, if the jury found out about it, it could tip the balance.(4/7/81 Transcript at 24-25 (emphasis added).) Musing on thequestions he would ask jurors about the article, the judge againreferred to "a case like this which is so delicate." (Id. at 27-28.) Finally, after speaking withall the jurors — and determining that no harm was done by thearticle — he once again noted this was a "difficult case" in a"delicate balance" and ordered the jurors sequestered. (Id.at 69.)

Petitioner's argument to the contrary, Judge Smith'sobservations, this court believes, are not factual determinationsentitled to a presumption of correctness under28 U.S.C. § 2254(e)(1). See, e.g., Sanna, 265 F.3d at 7 (noting thatsubsection (e)(1)'s presumption of correctness standard appliesonly to "basic, primary, or historical facts"); Weaver v.Thompson, 197 F.3d 359, 363 (9th Cir. 1999) (holding thatstatements in trial judge's letter to counsel were neither"facts" nor "findings of fact" and, thus, were not presumptivelycorrect under subsection (e)(1)). Nevertheless, Judge Smith'sobservations support Petitioner's main proposition: that thesuppressed evidence, which was favorable to Petitioner's case,was material enough to have swayed the jury to his side. In otherwords, even assuming arguendo that the SJC reasonablyconcluded that the postmortem report and note concerned an issueof "minimal significance" — e.g., a side issue having to do withthe killer's nakedness — it unreasonably disregarded the trialjudge's observation that the case was so close that even a "smallmatter" could have changed the outcome. Accordingly, and for theother reasons noted above, the court will recommend that habeasrelief be granted Petitioner with respect to Ground One pursuantto the "unreasonable application" prong of 28 U.S.C. § 2254(d)(1).

B. Petitioner's Motion for an Evidentiary Hearing (GroundFour)

Petitioner has not yet addressed the merits of the juror taintissue (Ground Four) but, instead, seeks an evidentiary hearingwith respect thereto. Before addressing that request, somefurther background is in order.

As might be expected, Petitioner and Respondent offer somewhatcontrasting versions of the facts surrounding the juror taintissue. Although there is little material difference in theparties' expositions, the court has chosen to follow Respondent'slead and take the SJC's statement of the facts on this questionverbatim. As set forth in Healy I, those facts are asfollows: During the trial it came to the attention of the prosecutor that the foreman of the jury, Paul L. Briere, might have been subjected to extraneous influences in the form of improper communications by a third person. The third person was a law student, Paul Ramy, who was employed by the same company as Briere. One of Ramy's fellow law students worked in the office of the district attorney; it was through him that the prosecutor learned that Ramy had made statements which indicated that he had been having conversations about the trial with the foreman. On April 2, 1981, just before closing arguments, the judge questioned the fellow law student, examined Ramy under oath, and also questioned the foreman. These sessions were held separately in the judge's lobby in the presence of counsel. Counsel were permitted to question the first two, and apparently to suggest questions to the judge to ask the foreman. Ramy testified that Briere had said that he had been made foreman; that many exhibits had been introduced and it had been a "very long day"; that it was a difficult case; that he hoped the jury would be able to bring a transcript to the jury room with them. When Briere was first empanelled, Ramy told him that he could not look at Ramy's evidence books. Briere never commented to Ramy on the evidence, asked him about the admissibility of evidence, or talked to him about what was going on in the courtroom. Briere stated that he had asked Ramy whether a jury were allowed to take a transcript of the trial into the jury room and that he had speculated to Ramey [sic] as to whether evidence was being questioned. He said, "The questions I asked were general in nature and have nothing to do with the specifics of the case." He denied having discussed the evidence, its admissibility or exclusion, or any other aspect of the case with Ramy. The judge instructed the foreman that he could consider only the evidence he heard in the courtroom and that he had to take the law from the judge. He told him to tell the rest of the jury that he had been in the lobby discussing scheduling with the judge. The judge also told Briere not to entertain a grudge against either side because he had been questioned. Briere resumed his seat on the jury. The record indicates no objection by either counsel. After the verdict and sentencing, defense counsel reported to the judge that another lawyer, Mr. Greg T. Schubert, had told him that he heard from Paul Ramy that the judge had been in the jury room during deliberations. [The rumor was false.] Mr. Schubert also told defense counsel that Ramy and Briere had been living in the same apartment during the trial. Neither Ramy nor Briere had revealed this fact to the judge on April 2. As a result of questioning Mr. Schubert, on April 16 the judge conducted further questioning of Briere, Ramy, and the law student who worked in the office of the district attorney. Counsel had the opportunity to ask questions of all three men on this day. Briere stated, under oath, that because of marital problems he had been renting a room from Ramy during the period of the trial. He testified that he had told Ramy during the trial that he could not discuss the case with anyone. He had asked Ramy if the jury could see a transcript and what a "voir dire" was. Ramy had told him that he knew someone who was a spectator at the trial. Ramy had said that that person was known to him only as "Dick." Sometimes at night he would repeat "Dick's" comments to Briere. Briere "tried very hard to be stoic." At various points Ramy said that he heard that the defendant took the stand that day or that there had not been a trial another day. Defense counsel asked Briere if Briere had had a conversation with Ramy about the credibility of [Petitioner]'s testimony, along the line indicated by Ramy's statement to his fellow student. Briere replied, "No, I didn't." Ramy's testimony on April 16 was consistent with his earlier testimony as to conversations he had had with Briere about the trial. However, it became clear on April 16 that Ramy had been evasive on April 2 about the fact that Briere was living with him. On April 16 Ramy was extremely evasive, to put it charitably, about what he had said and to whom he had said it relative to the judge's being in the jury room; during what period Briere was living with him; and whether he had told Briere about what had been said at Ramy's first visit to the judge's lobby. Furthermore, Ramy was unable to give any more information about "Dick" other than that "Dick" was not a lawyer or a law student, that he had met "Dick" sixteen years before in a bowling league, and that he had had the conversation about the trial with him at a supermarket meat counter. He swore "[u]nequivocally," though, that "`Dick' was not Paul Briere." The judge had referred to "Dick" as "mysterious" and said that defense counsel probably thought that "Dick" was Briere and would be perfectly right in filing a motion for a new trial. He had advised Ramy to get a lawyer and to return on another day. At the end of the hearing the judge asked Ramy to try to locate "Dick" and to bring him back to the court. The judge said, "[T]he only thing I'm interested in is quite frankly to make sure the verdict was not tainted by the outside news, or by any members of the jury. . . . So, bring in this guy `Dick' . . . if there is such a person because I want to make sure the verdict was not tainted in any way, shape or manner." He set a further hearing for April 28, but no further hearing was held.Healy I, 471 N.E.2d at 373-75 (citation and footnotesomitted). Although Judge Smith set a further hearing for April28, 1981, it was not held because he was elevated to theMassachusetts Appeals Court in the interim.

In his July 15, 1981 motion for new trial, which was assignedto Superior Court Judge William W. Simons, Petitioner allegedthat Briere had been subjected to improper influences. Inconnection with that motion, Petitioner sought an evidentiaryhearing. On August 12, 1981, Judge Simons denied Petitioner'srequest for an evidentiary hearing. Judge Simons found, on thebasis of his inquiries, that Judge Smith "was satisfied that . . .he felt no need on the posture of the information that he hadat that time to continue with anything further." (Document No. 53(hereinafter "8/12/81 Transcript") at 25.) In Judge Simons' view,an evidentiary hearing was not to be used as an "investigatorialtool" and, at most, Petitioner could file a legal brief arguingthat the verdict was tainted by improper juror contact. (Id.at 26-28.)

Petitioner did in fact file a legal memorandum on August 28,1981, urging again that he should be allowed an evidentiaryhearing on whether there had been improper contact with a sitting juror. Judge Simons denied themotion on September 8, 1981. As indicated, the SJC affirmed thatruling in Healy I and stated the following: The denial of [Petitioner]'s first motion for new trial was proper. As the Commonwealth argued and as the judge stated at the August hearing, a motion for a new trial should not have been filed in the Superior Court during the pendency of [Petitioner]'s appeal from his conviction. Although the trial judge had set a date for a further hearing that was never held, we see nothing in the record of the lobby conferences of April 2 and April 16 to necessitate a further evidentiary hearing. There was no testimony on either of those dates as to any extraneous influence on Briere. Even if it were assumed that Briere was "Dick" and that he did express to Ramy his views on [Petitioner]'s credibility, this does not constitute an extraneous influence on Briere. Additionally, the motion judge acted within his discretion, based on a review of the transcripts of the prior hearings, affidavits submitted, oral argument, and memoranda of law, in concluding that no further evidentiary hearing was required. He also was within his discretion in ruling that the attempt to use the motion for a new trial as an investigatory procedure was improper.Id., 471 N.E.2d at 375 (citations and footnote omitted).

Presently, Petitioner seeks an evidentiary hearing in order toenable the court to decide the merits of Ground Four. A hearingis required, Petitioner asserts, because the state courts "neverheld the necessary hearing or produced the necessary factualfindings, despite Petitioner's diligent effort to develop thefacts." (Document No. 19 (hereinafter "Petitioner's Motion forEvidentiary Hearing") at 1-2) (citations and internal quotation marksomitted).) For his part, Respondent makes two arguments as to whyan evidentiary hearing is not required. First, Respondentcontends that federal habeas courts cannot sit in judgment of astate court's hearings or investigatory procedures. Second,Respondent asserts that Petitioner is not entitled to a hearingunder the AEDPA.

If Respondent's first contention were true — that habeascourts can never evaluate state court hearings or procedures —the writ would be entirely hollow. Of course, as the decisionsRespondent cites emphasize, "it is not the province of a federalhabeas court to reexamine state-court determinations on state-lawquestions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).See also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federalhabeas corpus relief does not lie for errors of state law");Hamm v. Latessa, 72 F.3d 947, 954 (1st Cir. 1995) (similar,citing Estelle). But those decisions make it equally plainthat the fundamental role of the federal habeas court is "todecid[e] whether a conviction violated the Constitution, laws, ortreaties of the United States." Estelle, 502 U.S. at 68.See Lewis, 497 U.S. at 780-81 (similar). See also Hamm,72 F.3d at 954 ("The rule, then, is that a federal habeas court willnot disturb the state courts' construction or application ofstate law unless it can be shown that such construction orapplication offends the Constitution or some (applicable) federalstatute."). That is exactly what Petitioner is pursuing in GroundFour. Specifically, Petitioner alleges that (1) "third partycommunications with the jury foreman violated his rights to trial by an impartial jury and to be confronted withthe witnesses against him" (Petitioner's Motion for EvidentiaryHearing at 1); (2) "[t]his allegation is `controlled by thecommand of the Sixth Amendment, made applicable to the Statesthrough the Due Process Clause of the Fourteenth Amendment'"id. (quoting Parker v. Gladden, 385 U.S. 363, 364 (1966));and (3) "[t]he essential tool for deciding such an allegation isan evidentiary hearing" (id. (citing, inter alia, Williamsv. Taylor, 529 U.S. 420 (2000)).

Respondent's second contention — that the AEDPA barsPetitioner from obtaining an evidentiary hearing — requires asomewhat more detailed analysis. In the end, however, the courtfinds this contention equally wanting.

The statutory provision upon which Respondent relies,28 U.S.C. § 2254(e)(2), states as follows: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2). Respondent asserts that the language of thissubsection makes clear that Petitioner is not entitled to anevidentiary hearing. Petitioner, however, argues that subsection(e)(2) does not even come into play since he did not "fail[] todevelop the factual basis of [his] claim."

In Williams v. Taylor, the Supreme Court determined thatthe language in the opening clause of subsection (e)(2) — failingto develop the factual basis of the claim — is triggered only ifthe petitioner lacked "diligence" in developing a claim in statecourt. See id., 529 U.S. at 437. If a petitioner was unable,despite diligent efforts, to develop his claim in state court,the Court reasoned, then subsection (e)(2) would not bar anevidentiary hearing in federal court. See id. In other words,a petitioner's motion for an evidentiary hearing will not bebarred by subsection (e)(2) if the habeas court determines he wasunable to develop the factual basis of his claim in state courtdespite diligent effort. This inquiry begs another: under whatcircumstances is a petitioner considered unable to develop aclaim in state court?

Here, in arguing that he required a more extensive hearing instate court, Petitioner relies on United States v.Gaston-Brito, 64 F.3d 11 (1st Cir. 1995), which, he claims,lists prerequisites to developing a claim at the statelevel.33 In the court's view, however, Petitioner's reliance on Gaston-Britois not convincing. First, the court in Gaston-Brito wasexamining a federal district court's inquiry into allegationsof improper jury conduct during a federal trial. See id.,64 F.3d at 12. That is obviously not the situation here. Second,as Respondent notes, Petitioner's reliance on such a "list"challenges, in essence the state trial court's procedure ininvestigating his claim, a problematic stance on Petitioner'spart because, as indicated, a federal habeas court cannot reviewstate court determinations on state law matters.

Nonetheless, Petitioner fares well under Williams itself.There, the Supreme Court ruled that a habeas petitioner was notbarred an evidentiary hearing by subsection (e)(2) where thetrial record contained "no evidence which would have put areasonable attorney on notice that [a juror]'s nonresponse[during voir dire] was a deliberate omission of materialinformation." Id., 529 U.S. at 442. The district court hadfound that "the factual basis of the claims was not reasonablyavailable to petitioner's counsel during state habeasproceedings." Id. If an attorney does not have notice of aproblem, the Supreme Court concluded, he is presumably unable toact diligently on that problem. See id. at 442-43.

Here, too, material questions of fact central to Petitioner'sclaim remained hidden from his counsel, as examples, "Dick's"identity, the extent of the conversations between Briere andRamy, and other evidence which might indicate that the verdict was tainted by outside influences. As the SJCitself stated in Healy I, "[o]n April 16 Ramy was extremelyevasive, to put it charitably, about what he had said and to whomhe had said it relative to the judge's being in the jury room;during what period Briere was living with him; and whether he hadtold Briere about what had been said at Ramy's first visit to thejudge's lobby." Id, 471 N.E.2d at 374.

Still, the court must determine whether Petitioner exercised"diligence" in seeking to have these questions answered."Diligence will require in the usual case that the prisoner, at aminimum, seek an evidentiary hearing in state court in the mannerprescribed by state law." Williams, 529 U.S. at 437.Diligence "does not depend . . . upon whether [the petitioner's]efforts could have been successful," but on whether he "made areasonable attempt, in light of the information available at thetime, to investigate and pursue claims in state court." Id.at 435. In determining whether a petitioner has acteddiligently, the court may ascertain whether, based on theinformation available to the petitioner's attorney while thematter was before the state court, a diligent attorney would orcould have done more. See id. at 439.

It is difficult to argue that Petitioner, through hisattorneys, could have done more to develop his claim. He promptlyfiled a motion for a new trial — with Judge Smith's blessing,see Healy I, 471 N.E.2d at 375 ("The judge . . . said thatdefense counsel . . . would be perfectly right in filing a motionfor a new trial.") — and sought an evidentiary hearing with respect thereto. When thatrequest was denied, he filed a timely written objection. When thejudge overruled that objection, Petitioner filed a pleadingseeking findings of fact. None were made. He then filed a motionfor a new trial in the SJC, but that motion was denied as well.In short, Petitioner continually made timely efforts toadjudicate the matter in the state courts.

To be sure, as Respondent now suggests, Petitioner, arguably,might have tried to interview individuals involved with the casein order to develop his claim more fully. However, the SupremeCourt has never held that the failure to pursue all possibleavenues of inquiry amounts to a lack of diligence. Further, andperhaps more importantly, Petitioner's attorneys were precludedby state law from interviewing Briere or the other jurors, absentleave of court. See Rule 3.5(d) of the Massachusetts Rules ofProfessional Conduct ("A lawyer shall not . . . after dischargeof the jury from further consideration of a case with which thelawyer was connected, initiate any communication with a member ofthe jury without leave of court granted for good cause shown. . . .In no circumstances shall a lawyer inquire of a jurorconcerning the jury's deliberation processes."). In the end, thecourt believes that Petitioner exercised adequate "diligence" inpursuing his claim in state court but was "unable" to achieverelief. The court concludes, therefore, that Petitioner is notbarred by subsection (e)(2) from receiving an evidentiaryhearing. Of course, even though the court believes that Petitioner'srequest for an evidentiary hearing is not barred by subsection(e)(2), it must still look to whether he has a right to anevidentiary hearing under the standard set forth in Townsend v.Sain, 372 U.S. 293 (1963), as modified by Keeney v.Tamayo-Reyes, 504 U.S. 1 (1992). See Fryar v. Bissonnette,113 F.Supp.2d 175');">113 F. Supp. 2d 175, 179 (D. Mass. 2000). Townsend requiresan evidentiary hearing in federal court unless the petitionerreceived a "full and fair" evidentiary hearing in state courtduring which the relevant facts were reliably found: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.Townsend, 372 U.S. at 312-13 (footnote omitted).

In the court's view, the Townsend standard has been methere. First, as described, Petitioner never received anevidentiary hearing in state court. Second, and perhaps moreimportantly, the state court never made findings on certainrelevant facts. For example, neither "Dick's" identity nor theextent of the communication between Ramy and Briere was everexplored. In addition, Ramy's evasiveness made suspect otherportions of his testimony, e.g., "what he had said and towhom he had said it relative to the judge's being in the juryroom; during what period Briere was living with him; and whetherhe had told Briere about what had been said at Ramy's first visit to the judge's lobby."Compare Fryar, 113 F. Supp. 2d at 179 (petitioner had no rightto an evidentiary hearing under Townsend "because the factsunderlying his claim of error were fully developed in the stateproceeding"). Finally, as described, Petitioner's attorneys wereprecluded by applicable ethical rules from interviewing thejurors themselves.

In summary, the court concludes that, in accordance withWilliams, subsection (e)(2)'s bar does not come into play andthat Petitioner is entitled to an evidentiary hearing underTownsend. Accordingly, the court will recommend that hismotion for an evidentiary hearing on the issue of juror taint beallowed.

C. Sufficiency of the Evidence (Ground Three)

Finally, with regard to Ground Three, Petitioner argues thatthe SJC's ruling in Healy I that there was sufficientevidence to convict was an "unreasonable application" ofJackson v. Virginia, 443 U.S. 307 (1979), "whether, afterviewing the evidence in a light most favorable to theprosecution, any rationale trier of fact could have found theessential elements of the crime beyond a reasonable doubt."Id. at 319 (emphasis in original). See28 U.S.C. § 2254(d)(1).34 To decide this claim, Petitioner argues, the court must review the "totality"of the evidence. See Hurtado v. Tucker, 245 F.3d 7, 17-18(1st Cir. 2001).

After considering the relevant records provided, and despiteJudge Smith's observation that the case was close, the courtbelieves there was sufficient circumstantial evidence to convictPetitioner of murder based on the record before the jury. To besure, should this court's recommendations with respect to GroundsOne and Four be adopted, the situation may markedly change. Forexample, the court cannot surmise how a jury might have beeninfluenced if it learned of the postmortem report and the note.Nor is the court convinced that the trial was free from jurortaint. As the record presently stands, however, the court believes that the petition ought not be granted on thebasis of Petitioner's sufficiency of the evidence challenge.Accordingly, the court will recommend that the petition bedenied, without prejudice, with respect to Ground Three.

III. CONCLUSION

For the reasons stated, the court recommends that Petitioner'smotion for an evidentiary hearing be ALLOWED, that the petitionbe GRANTED with respect to Ground One, and that the petition beDENIED, without prejudice, with respect to GroundThree.35

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