MEMORANDUM AND ORDER
Jose Lopez (Lopez) has filed a petition for a federal writ ofhabeas corpus, alleging that the Massachusetts courts violatedhis federal constitutional rights to due process and a fairtrial, and against compelled self-incrimination, by failing tosuppress certain evidence at his trial (and dismiss hisindictment on those grounds) or to award him a new trial based onnewly discovered evidence. Although Lopez's claims regardingevidentiary rulings at trial fail under 28 U.S.C. § 2254(d), hisclaims regarding his motion for a new trial have sufficient meritto warrant granting him an evidentiary hearing to determinewhether the writ of habeas corpus ought issue. I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
As the Court explains below, the Supreme Judicial Court's("SJC") factual findings must be treated as correct here becausethe SJC's findings as to what evidence Lopez and the Commonwealthproduced at trial, and the conclusions the SJC draws from thatevidence, fall within the reasonable range. The Court thereforequotes verbatim the SJC's findings as to the factual background: The background of the case is as follows. [Lopez] met the victim's mother, Maria Rodriguez, in July, 1993, and began living with her and her two sons shortly thereafter in Haverhill. Rodriguez was a habitual drug user, and [Lopez] often assisted in caring for the two boys. By April, 1994, [Lopez] and Rodriguez were experiencing conflict in their relationship, and [Lopez] threatened to "take the kids away [and] hide them . . . so [she] wouldn't find them." Rodriguez obtained a protective order against [Lopez], but he persisted in coming to her apartment. Sometimes she allowed him to come in, and he slept on her couch several nights a week. On June 28, 1994, Rodriguez was paid $1,000 to enter into a sham marriage with a man who wanted to obtain United States citizenship. Later that day, Rodriguez and [Lopez], who was very upset over the marriage, argued over whether she would move away from Haverhill with him. He left Rodriguez's apartment, but returned in the early morning hours of June 29, banging on the door, crying, and asking Rodriguez to take him back. She let him in, and he slept on her couch for the rest of the night. On the afternoon of June 29, 1994, at approximately 4 P.M., Rodriguez left [Lopez] in her living room watching television. Her son, the victim, was playing at a neighbor's home, and [Lopez] agreed to watch the victim while Rodriguez went out. [Lopez] then went to the apartment where the victim was playing and offered him money to go home to help him close a window. The victim left his friends, saying that he would be back. A neighbor saw [Lopez] and the victim get into [Lopez]'s truck and drive away. The neighbor told Rodriguez, after she returned home, that [Lopez] had taken the victim "in the truck and left." [Lopez] returned to Rodriguez's apartment later that evening, without the victim. He told Rodriguez that he had paid the victim five dollars to help him with the window, but denied leaving with the victim in his truck. [Lopez] and Rodriguez then went to the police station and reported the boy missing. The next day, [Lopez] gave several statements to the Haverhill police regarding his whereabouts on the previous evening. [Lopez] told the police that, on the previous day, at approximately 4:30 P.M., he went to a neighbor's house and offered the victim money to close a window at home. After the victim closed the window, he stated that he was going to return next door to play. [Lopez] then walked to a friend's house, got his truck, returned to Rodriguez's apartment and parked his truck in the driveway. [Lopez] stated that, at that time, about 5 P.M., nobody appeared to be at the apartment. [Lopez] told the police that, after doing an errand, he had gone to the home of a friend, Nancy Valle, with whom he had made an arrangement to pay fifty dollars a month to store clothes in her apartment and to stay occasionally. There, [Lopez] had changed out of the dirty clothes that he had been wearing. On the basis of these statements, the police obtained [Lopez]'s written consent to search his pickup truck and to retrieve from Valle's apartment the clothes he had worn the previous day. Police officers subsequently recovered [Lopez]'s wet black pants from Valle's apartment and a number of items from [Lopez]'s truck, including a length of rope. Later that evening, [Lopez] was arrested on the charge of kidnapping. [Lopez]'s truck was towed to the garage of the Haverhill department of public works (DPW). On July 8, 1994, eight days after [Lopez]'s arrest and nine days after the victim's disappearance, workers at a salvage yard in Haverhill discovered the victim's body in the trunk of a white Chrysler Cordoba automobile marked to be destroyed by a "crusher." The body was weighted down with a one hundred pound transmission, and a rope was looped around the neck and tied to the trunk hinges. At trial, the Commonwealth presented substantial evidence of [Lopez's] guilt. There was testimony that [Lopez] had been seen at the salvage yard about one and one-half weeks before the victim's body was found. [Lopez] had been looking for a transmission, and had been directed to an area of the yard near the automobile in which the body was found. There was a section of fence missing from that same area of the yard, and a set of fresh tire marks near the missing fence section. Paint smears taken from a screwdriver found in [Lopez's] truck matched the paint on the automobile in which the body was found. Fibers consistent with those from the victim's multicolored shorts were found in [Lopez's] truck, and black fibers consistent with the truck's carpet were found on the victim's sandals. In addition, [Lopez's] black pants contained stains of iron and rust, white paint chips, and red fibers consistent with those from the victim's hooded shirt. The medical examiner testified that the victim had died approximately one week before his body was discovered, but, because of severe decomposition of, and insect infestation to, the body, it was impossible to determine whether the cause of death was strangulation, the weight of the transmission placed on the body, or the heat inside the trunk of the automobile. The Commonwealth also presented the testimony of Angel Miranda, [Lopez's] cellmate while [Lopez] was held in a house of correction awaiting trial. Miranda testified that [Lopez] had told him that he had offered the victim ten dollars, driven him to a junkyard, strangled him with a brown towel until he was unconscious, and placed him inside the trunk of a car "marked to be crushed," with a transmission on top of him. [Lopez], whose primary defense was alibi, presented witnesses to testify that he was with them at various times between 2 P.M. and 4:45 P.M. on the afternoon of the victim's disappearance. [Lopez] also presented witnesses to testify that he loved the victim and his brother, was often their principal caregiver, and had at one time filed neglect petitions against their mother. In addition, he attempted to impeach Miranda's testimony through the testimony of other house of correction inmates who suggested that Miranda may have fabricated [Lopez's] admission to avenge a beating. [Lopez] presented a forensic expert who criticized the Commonwealth's failure to perform certain tests on the paint and fiber samples recovered, and indicated that the tests performed by the Commonwealth were inconclusive. [Lopez] also attempted to introduce another suspect for the murder through the testimony of John Roche, who lived on the road abutting the salvage yard. Roche testified that he made contact with the Haverhill police to report a suspicious truck he had seen on his road during the last week of June, 1994. Roche testified that he informed someone at the police department identifying himself as "Sergeant Smith" that there were three people in the truck, a woman and two men, one whom he described as "stocky, bald and Spanish." When [Lopez's] trial began two years later, and it was apparent that the police had failed to follow up on his information, Roche again made contact with the Haverhill police. A Haverhill police officer testified that the man described by Roche fit the description of a suspected area drug dealer, known as "Kojak," but that Kojak never came up as a suspect during the investigation of the victim's murder. [Lopez] did not testify in his defense. After [Lopez] rested his case, the Commonwealth introduced the testimony of Julia Diaz. She testified that one day in October or November of 1993, a time when [Lopez] and Rodriguez were having problems in their relationship, [Lopez] told her that he was not a "sucker," and if Rodriguez left him, he would "hurt [Rodriguez] where it hurts the most." He then told Diaz a story he described as having happened in the Dominican Republic. [Lopez] stated that a couple there were "having problems," so the man took the woman's children and hid them for a few days, returning them safely only when the couple "got back together."Commonwealth v. Lopez, 433 Mass. 406, 407-10 (2001).
The Court notes that the first time Roche saw Kojak, thelatter's truck pulled into and out of the driveways on eitherside of Roche's house before continuing on to the salvage yard.Tr. 15:132-34. The second time Roche saw Kojak, the Sunday after the victim disappeared, Kojak was standing in the street near theRodriguez residence. Id. at 15:135-36.
A. Lopez's Evidentiary Objections at Trial
1. Lopez's Truck
Lopez moved to have forensic evidence taken from his trucksuppressed and to have the indictment against him dismissedbecause the Commonwealth destroyed the truck before trial. Inparticular, Lopez sought to suppress "paint, fibers, and ruststains taken from the truck, and all resulting scientific reportsand test results, as well as photographs of the [truck's] tireprints." Lopez, 433 Mass. at 411 n. 1. The trial courtconducted a hearing and made findings of fact and conclusions oflaw. Id. at 411. The trial judge determined, based on a set ofstipulated facts and on testimony at an earlier hearing, that onJuly 21, 1994, during a search of Lopez's truck conductedpursuant to a valid warrant, the Commonwealth seized variousitems from the truck and took photographs of each of the truck'stires. Id. at 411 & n. 2. All of this was made available to thedefense. Id. at 411. The State police told employees of theHaverhill Department of Public Works garage that was holding thetruck to preserve it as "evidence in a pending criminal case,"but the truck was "erroneously marked for destruction," and was"destroyed" on March 20, 1996, "without the knowledge or consent of the local or State police." Id. at 410-11. The SJCapparently approved all these findings. See id. at 412.
The trial judge held that "the Commonwealth had exercised goodfaith in attempting to preserve the truck, but had been negligentin allowing it to be destroyed." Id. at 411. Lopez, however,"had failed to show any loss or destruction of reasonablypossible beneficial evidence." Id. Because the samples (whichwere available to Lopez) were the only evidence the Commonwealthsought to use, and because Lopez had had one and a half years toexamine the truck for exculpatory evidence before it wasdestroyed, the trial judge held that Lopez had failed todemonstrate any "discernible prejudice." The SJC upheld the trialjudge's findings and conclusions. Id. at 412.
B. Diaz's Testimony
On the fourth day of the trial, the Commonwealth sought topresent Julia Diaz, a late-discovered witness, "who had firstmade contact with the police five days earlier," and who wouldtestify about Lopez's Dominican Republic kidnaping story. Id.at 413. In order to afford Lopez's attorney a chance toinvestigate the witness, the trial judge refused to allow her totestify as part of the prosecution's case-in-chief, but stated hewould consider a motion to allow her as a rebuttal witness. Id.The judge later allowed that motion, over Lopez's objection thather testimony concerned matters "too remote, and not responsive"to the case the defense had presented. Id. Although the judgetreated Diaz as a rebuttal witness for evidentiarypurposes,1 the SJC held that the judge "correctly stated"that "the foremost issue . . . was one of timing." Id. In otherwords, Diaz was an appropriate witness for the case-in-chief, andwas only relegated to the rebuttal stage to give Lopez anopportunity to investigate her. Id. Moreover, she was anappropriate rebuttal witness, as her testimony "contradictedtestimony in [Lopez's] case about his cordial relationship with,and quasi parental affection for, Rodriguez's children." Id.
The SJC also held that the trial judge properly refused Lopez'srequest to present surrebuttal witnesses, on grounds that theirtestimony would be "cumulative and collateral in nature" and of"highly doubtful relevance." Id. at 414.2 In the SJC'sview, the trial judge's statement to Lopez that he was free to"take the stand to rebut Diaz's testimony" (which he did not) was"appropriate to the circumstances," and not a violation ofLopez's right against compelled self-incrimination under the United States Constitution and the Massachusetts Constitution.See id. at 414 & n. 7.
C. Lopez's Motion for a New Trial
After Lopez was convicted, he sought a new trial based on twotypes of newly discovered evidence. Id. at 414-15. The firstinvolved "Kojak," "the alternate suspect vaguely identified attrial" by Roche. Id. at 415. Lopez alleged via affidavit that,after trial, he learned that "Kojak" was in fact Juan Garcia, aman with prior "convictions [for] distributing a controlledsubstance, assault and battery, and threatening to commit acrime," and who "had also been arrested and charged with numerouscrimes that had been dismissed." Id. Lopez concluded thatGarcia was "known to Haverhill police," and a retired Haverhillpolice officer has stated in an affidavit "that Kojak was knownto have been involved in an `automotive business.'" Id. Basedon a photograph of Garcia, Roche "identified [him] as the man hehad seen in the truck." Id. Lopez identified Garcia asRodriguez's drug dealer, and stated that Garcia had beenromantically involved with Rodriguez's sister, "and had vowed tohave revenge against" Lopez after the two fought on one occasion.Id. A defense investigation revealed that there was an OfficerSmith working, presumably as dispatcher as he occasionally hadserved in the past, at the time Roche called the police, andLopez argued that this meant that Roche's statements to the police constituted "exculpatory evidence within the knowledge andpossession of the Commonwealth that had been wrongfully withheldfrom him." Id.
The second type of evidence was a post-trial recanting by AngelMiranda of his testimony that Lopez had "confessed" to him. Id.Miranda's affidavit asserts that he lied because he was angry atLopez for beating him and for helping others assault him. Id. Asecond inmate offered an affidavit supporting Miranda'srecantation. Id.
The trial judge denied the motion for a new trial without ahearing, and said: Based on the affidavits filed [with the motion] and the fact that I was the trial judge, I find that the [defendant's] `newly discovered evidence' does not create a substantial risk that, [if] the jury [were] exposed to [the Garcia Kojak] evidence, [they] would have reached a different conclusion. I [also] do not credit the recantation by the witness, Angel Miranda. His testimony under oath at the trial was . . . impeached by . . . defense witnesses. . . . Justice was done.Id. at 415-16 (alterations in original).
The SJC held that the trial judge's decision was justified.Id. at 416. In particular, with regard to Garcia, the SJCstated that "[t]here is no evidence that Juan Garcia was involvedin the victim's murder . . . [and t]he only evidence directlyconnecting Garcia to [Lopez], or to the Rodriguez family, came in[Lopez's] own self-serving affidavit." Id. Moreover, "[t]heusefulness of this information is highly questionable; [Lopez]did not testify at the trial, and his claim that Garciathreatened revenge against him is impermissible hearsay." Id. Lastly, "thepossibility of Garcia as an alternate suspect was presented tosome extent at trial, and rejected by the jury." Id.
In a footnote, the SJC stated that, in concluding that Lopez'spost-conviction affidavits did not cast doubt on the jury'sverdict, it had rendered "moot [Lopez's] contentions that thealleged new information about Kojak was not previously availablebecause the police failed to preserve it, and that [Lopez] wasprejudiced thereby." Id. at 1075 n. 8. The SJC further stated:"We note, however, that these contentions have no adequatelysupportable basis in the record." Id.
As for Miranda's recantation, the SJC stated that "[t]hejudge's finding that the recantation was not believable isfinal." Id. at 1075.
D. Lopez's Habeas Petition
Having preserved his federal constitutional arguments andexhausted state remedies with regard to the relevant claims,Lopez filed a petition for a federal writ of habeas corpus onAugust 31, 2001, and filed an amended petition, deletingnon-exhausted claims, on November 5, 2002. The parties camebefore this Court for a hearing on October 23, 2003, and theCourt took the matter under advisement.
A. Standard of Review This petition was filed after the effective date of theAntiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),Pub.L. No. 104-132, 110 Stat. 1214, so the Court's review isgoverned by that statute. Lindh v. Murphy, 521 U.S. 320, 336(1997).
The standard of review in federal collateral challenges tostate court convictions became more deferential with the passageof the AEDPA. See Williams v. Taylor, 529 U.S. 362, 412-13(2000) (O'Connor, J.). State Court factual findings are presumedto be correct, unless the habeas petitioner rebuts thatpresumption with clear and convincing evidence of error.28 U.S.C. § 2254(e)(1); Norton v. Spencer, 351 F.3d 1 (1st Cir.2003) (holding that this applies equally to state trial andappellate courts); see Sumner v. Mata, 455 U.S. 591, 593(1982) (same, under former statutory habeas regime). Lopez'spetition can only be granted if his trial and subsequent statecourt proceedings "resulted in a decision that was contrary to,or involved an unreasonable application of, clearly establishedFederal law, as determined by the Supreme Court of the UnitedStates," id. § 2254(d)(1), or "resulted in a decision that wasbased on an unreasonable determination of the facts in light ofthe evidence presented in the State court proceeding[s]," id. §2254(d)(2).
The proper interpretation of section 2254(d) was laid out inJustice O'Connor's opinion in Williams, which constituted the opinion of the court with respect to that question. A state courtdecision is "contrary to" Supreme Court precedent if it "appliesa rule that contradicts the governing law set forth in [SupremeCourt] cases," Williams, 529 U.S. at 405 (O'Connor, J.), or ifit "confronts a set of facts that are materiallyindistinguishable from a decision of [the Supreme] Court andnevertheless arrives at a result different from [the SupremeCourt's] precedent." Id. at 406.
Outside such circumstances, the state court's decision, thoughnot "contrary to" Supreme Court precedent, may be an"unreasonable application" of such precedent to the facts. Suchan "unreasonable application" would occur if (1) the state courtidentified the correct rule from the Supreme Court's cases butunreasonably applied it to the facts before it, or (2) if thestate court applied the governing rule to a new situation whereit should not apply or, conversely, failed to apply the governingrule in a new situation where it should apply. See id. at407-08 (stating that this interpretive framework, as laid out inGreen v. French, 143 F.3d 865 (4th Cir. 1998), was "generallycorrect," but leaving for another day resolution of the exactstandard for over- and under-extension cases). A court mustrefuse to grant the habeas petition if the state court'sapplication of the governing rule to the facts, though incorrectin the court's view, was not "objectively unreasonable." Id. at409. At the same time, it is not the case that, in order for anapplication to be objectively unreasonable, the facts must be such that allreasonable jurists would apply the law differently. Id.(faulting the Green Court for applying such an overly strictstandard). Thus, unreasonableness requires "some increment ofincorrectness beyond error. . . . The increment need notnecessarily be great, but it must be great enough to make thedecision unreasonable in the independent and objective judgmentof the federal court." McCambridge v. Hall, 303 F.3d 24, 36(1st Cir. 2002) (quoting Francis S. v. Stone, 221 F.3d 100,111 (2d Cir. 2000) (citation and internal quotation marksomitted)).
B. Lopez's Evidentiary Claims
1. Lopez's Truck
Lopez is not entitled to relief on this claim. The respondents(the "Commonwealth")3 correctly state that, for purposesof federal habeas review, it is not enough for Lopez to establish(as he attempts to do in his petition) that admission of theforensic evidence from the truck violated his stateconstitutional rights: he must establish that it violated hisfederal constitutional rights. That he cannot do. UnderArizona v. Youngblood, 488 U.S. 51 (1988), when thegovernment fails "to preserve evidentiary material of which no more can be said thanthat it could have been subjected to tests, the results of whichmight have exonerated the defendant," id. at 57, no violationof the federal Constitution's due process guarantees occurs"unless a criminal defendant can show" that the government actedin "bad faith." Id. at 58. Lopez cites Brady v. Maryland,373 U.S. 83, 87 (1962), to urge that the Commonwealth's goodfaith is irrelevant, but that case applies to withholding ordestruction of exculpatory evidence, not to situations covered byYoungblood. See Williams, 529 U.S. at 57.
2. Diaz's Testimony and Lopez's Proposed Surrebuttal
Lopez does not make any effort to find cases that suggest thatallowing the late-disclosed Diaz to testify violated his federalconstitutional rights, nor could he. Cf. United States v.Quesada-Bonilla, 952 F.2d 597, 602-603 (1st Cir. 1991) (holdingthat the district court did not abuse its discretion in allowingthe government's late-disclosed witness to testify). The SJC waswithin bounds, factually and legally, in its February 22, 2001decision, in holding that Diaz's testimony would be admissiblewhether regarded as rebuttal or as case-in-chief evidence, andthat the trial judge acted within his discretion in allowing hertestimony.
Lopez has a slightly stronger argument that the trial court'srefusal to allow his surrebuttal evidence violated his Sixth Amendment4 rights to a fair trial, but this claimfails as well. The SJC reasonably applied Blaikie v.Callahan, 691 F.2d 64, 68 (1st Cir. 1982), which this Courtmust treat as correctly interpreting the Supreme Court's SixthAmendment precedents.
The Sixth Amendment protects the right of criminal defendantsto call witnesses in their defense, Washington v. Texas,388 U.S. 14, 18 (1967), but that protection is not unlimited, UnitedStates v. Scheffer, 523 U.S. 303, 308 (1998) ("[A] defendant'sright to present relevant evidence is . . . subject to reasonablerestrictions"). A defendant's interest in presenting relevantevidence "may, in appropriate cases, bow to accommodate otherlegitimate interests in the criminal trial process." Chambersv. Mississippi, 410 U.S. 284, 295 (1973). "[S]tate and federalrulemakers have broad latitude under the Constitution toestablish rules excluding evidence from criminal trials. Suchrules do not abridge an accused's right to present a defense solong as they are not `arbitrary' or `disproportionate to thepurposes they are designed to serve.'" Scheffer,523 U.S. at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). It isan interesting question whether Lopez's proposed surrebuttalshould be treated as part of his case-in-chief, rather than asrebuttal, given that the trial judge in many ways regarded Diaz as a case-in-chief witness displaced intime. Even taking that approach, however, this Court cannot holdthat the trial court's evidentiary rulings were objectivelyunreasonable, much less that the SJC's finding that no prejudiceresulted was erroneous.
3. Failure To Preserve or Disclose Notes Taken During Roche'sFirst Interview with the Haverhill Police Department, and OtherInformation Relating to "Kojak"
Under Brady, the evidence regarding "Kojak" is sufficient tojustify holding an evidentiary hearing. Unlike the evidence ofdestruction of the truck, the Commonwealth's failure to preserveor disclose notes taken during Roche's first interview with thepolice, as well as other information in the police department'spossession regarding Garcia, must be evaluated under Brady, notYoungblood, because such evidence is unquestionably favorableto Lopez. Under Brady, "the suppression by the prosecution ofevidence favorable to an accused upon request violates dueprocess where the evidence is material either to guilt or topunishment, irrespective of the good faith or bad faith of theprosecution." Brady, 373 U.S. at 87. The duty to discloseapplies even if the accused has made no request. See UnitedStates v. Bagley, 473 U.S. 667, 682 (1985). The Brady rulealso encompasses evidence "known only to police investigators andnot to the prosecutor." Kyles v. Whitley, 514 U.S. 419, 438(1995). A "true Brady violation" has three components: "[t]heevidence at issue must be favorable to the accused, eitherbecause it is exculpatory, or because it is impeaching; thatevidence must have been suppressed by the State, either willfullyor inadvertently; and prejudice must have ensued." Strickler v.Greene, 527 U.S. 263, 281-82 (1999). Lopez must thereforedemonstrate that "the nondisclosure was so serious that there isa reasonable probability that the suppressed evidence would haveproduced a different verdict." Id. at 281; see Bagley,473 U.S. at 682 (defining evidence as "material" if there is a"reasonable probability" that disclosure would have led to adifferent "result" in the proceeding). Under the "reasonableprobability" standard, "[t]he 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." Kyles, 514 U.S. at 434.
This is not an inquiry into the sufficiency of the evidence.The dissent in Kyles urged that habeas relief should not havebeen granted, because even if the exculpatory evidence had beenadmitted, there still would have been sufficient evidence tosupport a conviction. Kyles, 514 U.S. at 460-71 (Scalia, J.,dissenting). The majority explicitly rejected this analysis.Id. at 434-35 & n. 8 (Souter, J.). Moreover, courts mustanalyze the "cumulative effect" of undisclosed evidence indetermining whether a "reasonable probability" exists that the nondisclosurewould have produced a different verdict, rather than evaluatingeach piece of evidence individually for materiality. Id. at436.
The information regarding Roche's first interview with thepolice should have been disclosed to Lopez. Although it is truethat, under Moore v. Illinois, 408 U.S. 786, 795 (1972),there is "no constitutional requirement that the prosecution makea complete and detailed accounting to the defense of all policeinvestigatory work on a case,"5 if Kojak and Garcia werethe same person, and if Lopez's claims about Garcia's grudgeagainst him and relationship with Rodriguez and her sister aretrue, then the Roche interview information may well be materialunder Bagley.
The Commonwealth argues (as the state courts did), that therewas insufficient evidence to make Garcia a plausible suspect. TheCommonwealth cites Kiley v. United States, 260 F. Supp. 2d 248,273 (D. Mass. 2003) (Freedman, S.J.), which gatheredcases holding that "some plausible nexus linking the other suspect tothe crime" must exist before nondisclosure of policeinvestigative records regarding an alternative suspect can riseto the level of a Brady violation. An analysis of those same cases suggests that a "plausible nexus" exists in this case,at least to the extent Lopez's claims regarding Garcia are true.
First, an examination of the leading Supreme Court case whereno "substantial nexus" existed suggests that Lopez's case isdistinguishable. In Moore, the Supreme Court held that therewas no Brady violation when the undisclosed informationregarding another suspect was an early lead, later abandoned wheneyewitnesses established that he had been mistakenly identified.408 U.S. at 795. Assuming for the moment that Moore is stillgood law,6 it is distinguishable from this case. Therewere strong positive identifications of the defendant as themurderer, and the alternate suspect, "Slick," was a person who,at a later date, boasted about having engaged in similar conduct.Id. at 788-93. Although the prosecution failed to discloseevidence that some witnesses did not think "Slick" and thedefendant were the same person, a clear demonstration that theywere different people would neither have exonerated the defendantnor in any way have suggested that "Slick" was the real culprit.Id. at 795-97 (concluding the evidence was "not material to theissue of guilt"). Here, Lopez provides evidence that Garcia hadmethod, opportunity, and motive, in a case where the murderer's identitycould only be established through circumstantial evidence.
Second, Lopez's case is roughly as strong as many cases where a"substantial nexus" has been found, to the extent that the Courtcredits his claims regarding Garcia. For example, in Smith v.Secretary of New Mexico Dept. of Corrections, 50 F.3d 801,829-30 (10th Cir. 1995), a police report was held to be materialfor Brady purposes when it revealed that an alternativehomicide suspect was "near the vicinity of the bodies on twoseparate occasions" and that bloody women's clothes were found inhis truck during a traffic stop. Garcia was likewise seen in thevicinity where the victim's body was found on occasions shortlybefore and after the victim was killed, and his relationshipswith Lopez, Rodriguez, and her sister constitute additionalprobative evidence that Garcia might have been the killer, justas the bloody clothes in Smith provided additional evidence.Similarly, in Bowen v. Maynard, 799 F.2d 593, 612-13 (10thCir. 1986), a Brady violation was found when prosecutors failedto reveal evidence relating to an alternative suspect who waslinked to organized crime and had more motive than the defendant.Although in this instance Lopez (taking state court findings astrue) had a stronger motive than that alleged for Garcia, Garciahas, like the Bowen suspect, an extensive relevant criminalhistory and was twice placed near the crime scene, whereas the Bowen suspect was never placed near the crime scene.7United States v. Stifel, II, 594 F. Supp. 1525, 1541 (N.D.Ohio 1984), held that "the defendant should have been apprised ofevidence showing that someone other than himself had equalmotive, access to [bomb-making] materials, and other surroundingcircumstances implicating him as the guilty party." Garciasimilarly had motive (although perhaps not "equal"), opportunity,and surrounding circumstances (namely, the relationship with theRodriguezes and Lopez, and sightings near the crime scene). Seealso Jamison v. Collins, 100 F. Supp. 2d 647, 692 (S.D.Ohio 2000) (finding a Brady violation where undisclosedeyewitness statements gave a physical description of theperpetrator that differed substantially from defendant's physicalappearance).
In order to obtain habeas relief for a Brady violation here,Lopez must establish that the state courts were "objectivelyunreasonable" in determining that the Haverhill police'sinformation on Garcia was not material (the SJC was presumablyapplying the Brady analysis, see Lopez, 433 Mass. at 415).This inquiry is most appropriately considered as whether the SJCreached a decision that was an "unreasonable application of"clearly established federal law, although it arguably could be"based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[s]." Thelevel of objective unreasonableness required is essentially thesame in either inquiry. See Torres v. Prunty,223 F.3d 1103, 1107-08 (9th Cir. 2000).
The SJC stated that there was no "adequately supportable basisin the record" either for Lopez's contentions that theinformation that Kojak and Garcia were the same person was notpreviously available, or that Lopez was prejudiced by any failureof the Commonwealth to disclose what the police knew aboutKojak's identity. It is not entirely clear what the SJC meant, asit provides no further explanation, and the Commonwealth has notdiscussed this passage in its brief. The SJC could mean thatthere is insufficient evidence: (1) that the police had anyinformation about Kojak; (2) that the police failed to discloseany information about Kojak; or (3) that any information thepolice had about Kojak was undiscoverable by other means. The SJCmight also simply have been assigning another level ofsignificance to its conclusion that the information about Garciawas not relevant to the case — if the evidence was not material,then there could be no prejudice. If the SJC meant one of thefirst two, either finding would be clearly erroneous. Testimonyby Roche and members of the Haverhill Police Department andaffidavits submitted with Lopez's motion for a new trial indicatethat the police had information about Kojak that was notdisclosed to Lopez, and there is no evidence to the contrary. Likewise, the Court effectively addresses the fourthinterpretation below by establishing that the undisclosedinformation could well be material if Lopez's contentions aboutGarcia are true.
The SJC may have meant, then, that Lopez had not providedsufficient evidence that he could not, through reasonablediligence, have acquired substantially the same information thatthe police possessed about Kojak. As such, because Lopez shouldhave discovered this information on his own, the Commonwealth'sfailure to disclose did not prejudice his case. If the SJC meantthis, it presents a more difficult question. Lopez has allegedthat his attorney "interviewed Roche before his testimony, buthad no opportunity to conduct any investigation into the factsobserved and disclosed for the first time by this surprisewitness." Pet.'s Mem. at 7. Lopez's counsel had much with whichto deal at the time, given the destruction of evidence and thelate disclosure of Diaz. In light of Lopez's claim of limitedopportunity to investigate, the special difficulties heconfronted as he approached trial, and the absence of anyevidence that Lopez could have discovered Kojak's true identitybefore trial, this Court would hold that Lopez had establishedthe possibility of prejudice, were it ruling on the matter in thefirst instance. The mere fact that this Court disagrees with theSJC's findings, however, does not make them clearly erroneous. Areasonable jurist could find that Lopez had enough information to connect the dots without any further disclosure by theCommonwealth.
Given the ambiguous and cursory nature of this passage in theSJC's opinion, the Court cannot interpret it to establish a lackof prejudice. Rather, the Court holds that the Commonwealth'sfailure to disclose what the police knew about Garcia preventedLopez from fully presenting an alternative suspect. If Lopez canestablish a reasonable probability that full presentation wouldhave led to a failure in confidence in the verdict, then he iseligible for habeas relief.
If what Lopez claims about Garcia is true, it would beobjectively unreasonable to suggest that there was no "reasonableprobability" that a full exploration of Garcia's potential rolein the murder could have undermined confidence in the verdict,even assuming that the SJC's findings with regard to the recordevidence in the trial were correct.
The case against Lopez was based entirely on circumstantialevidence. If Lopez's claims about Garcia are true, thecircumstantial evidence pointing to Garcia as the murderer issignificant, and a presentation of all the facts about him mightundermine confidence in the verdict. It is undisputed that Garciahas a substantial and violent criminal history. According toLopez, Garcia was the victim's mother's drug dealer and wasromantically involved with the victim's maternal aunt. It maywell be that, in addition to his alleged vendetta against Lopez, he had other motives for murder arising out of thoserelationships. He was seen near the crime scene shortly beforeand shortly after the murder (on which occasion he was also nearthe victim's house), suggesting an opportunity to commit themurder, and was involved in an "automotive business," suggestingpossible familiarity with the salvage yard and the equipmentthere.
The trial judge reached his decision on Lopez's motion for anew trial without holding a hearing. In post-convictionproceedings in Massachusetts state courts, it is within thejudge's discretion to rule on the issues presented "on the basisof the facts alleged in the affidavits without further hearing ifno substantial issue is raised by the motion or affidavits."Mass. R. Crim. P. 30(c)(3).8
It is unclear whether the trial judge was holding that a fullexploration of Garcia's potential role in the murder would notlikely have undermined the verdict, or that Lopez's affidavits,standing alone, were unlikely to impact the verdict. The SJCappears to have taken this latter approach, stating that "[t]heonly evidence directly connecting Garcia to the defendant, or tothe Rodriguez family, came in the defendant's own self-servingaffidavit. The usefulness of this information is highlyquestionable; the defendant did not testify at trial, and his claim that Garcia threatened revenge against him is impermissiblehearsay." Lopez, 433 Mass. at 416. The SJC continued: "Merelyintroducing another possible suspect, without substantialadmissible evidence that this person, and not the defendant, mayhave committed the crimes, does not warrant a new trial. . . .The little additional and generalized information contained inthe defendant's affidavits casts no real doubt on the validity ofthe jury's verdicts." Id. (footnote omitted).
It appears, then, that the state courts' conclusions were basedon the probative value of Lopez's affidavits, rather than on thesignificance that his claims might have if they were true. ThisCourt, however, respectfully disagrees with this approach. WereLopez to have a new trial, he would be able to examine Garcia andcross-examine Rodriguez and her sister, and possibly others,regarding all the claims in his affidavits. The reason that Lopezcould only base his new trial motion on his affidavits was thathe was not given any kind of evidentiary hearing, at which hecould use compulsory process to elicit testimony from witnesseswith personal knowledge. Nor was he given any opportunity toconduct discovery. Without compulsory process, Lopez could not beexpected to get, for example, supporting affidavits from thevictim's mother and aunt, and from the man he wishes to accuse ofcommitting the murder.
If Lopez can demonstrate to this Court that he can provide morecompelling evidence supporting his claims about Garcia, then he would likely be eligible for habeas relief. The question iswhether this Court has any power to grant Lopez an evidentiaryhearing, after appropriate discovery and with compulsory process.
C. Standards for an Evidentiary Hearing
In determining whether to grant Lopez an evidentiary hearing,the Court must begin with 28 U.S.C. § 2254(e)(2), which provides: 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 factfinder would have found the applicant guilty of the underlying offense.
If Lopez was subject to the terms of this provision, he wouldnot be eligible for an evidentiary hearing. There is sufficientevidence of his guilt such that, even if he established all hisallegations regarding Garcia, a reasonable fact finder couldstill find Lopez guilty under section 2254(e)(2)(B). Fortunately for Lopez, his claim is not governedby this provision.
Section 2254(e)(2) only applies to an applicant who "has failedto develop the factual basis of a claim in State courtproceedings." Lopez has in fact developed the factual basis ofhis claim in state court — he presented the state courts withaffidavits laying out the relevant facts. Even were the Court tohold that the other evidence that Lopez would want to present ina new trial — such as testimony by Rodriguez, her sister, andGarcia — was not presented to the state courts, it cannot be saidthat Lopez "failed" to present such evidence. "Failure" in thiscontext requires some lack of diligence, Williams v. Taylor,529 U.S. 420, 430 (2000),9 and Lopez did everythingreasonably possible to get the relevant facts before the statecourts. He therefore falls outside the restrictions of section2254(e)(2). See id. at 437 ("If there has been no lack ofdiligence at the relevant stages in the state proceedings, theprisoner has not `failed to develop' the facts under §2254(e)(2)'s opening clause, and he will be excused from showingcompliance with the balance of the subsection's requirements.").
This means that the Court must make its determination based onpre-AEDPA law governing evidentiary hearings, or other relevant sources. In particular, Townsend v. Sain,372 U.S. 293 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1(1992),10 provides the relevant standard. UnderTownsend: 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.Martineau v. Perrin, 601 F.2d 1201, 1207 (1st Cir. 1979)(citing Townsend, 372 U.S. at 312-13). Townsend mandates ahearing
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.Townsend, 372 U.S. at 313. "In all other cases . . ., theholding of such a hearing is in the discretion of the districtjudge." Id. at 318; accord Rule 8(a), Rules Governing Section2254 Cases; Lonchar v. Thomas, 517 U.S. 314, 326 (1997).
Lopez has never had a full and fair hearing to demonstratewhether he can corroborate his claims regarding Garcia. It is unlikely that he could ever obtain corroborating evidence withoutdiscovery and compulsory process. The "fact-finding procedureemployed by the state court was not adequate" in this particularcase, given the unique difficulties Lopez faced and the fact thatthere was "a substantial allegation of newly discoveredevidence." Townsend, 372 U.S. at 313.
Lopez thus meets the Townsend standard. Even if he did not,the Court would, in the exercise of its discretion, hold anevidentiary hearing, given the substantial nature of the claimsraised. The Court emphasizes, however, that it does not fault theprocedures employed in the courts of the Commonwealth generally;rather, on the facts of this particular case, more is needed toensure fulfillment of the commitment to justice that theCommonwealth and the federal government both share.
The Court therefore orders that Lopez submit a proposedtimeline for the hearing and any discovery within four weeks fromthe date of this order. If he does not wish to have anevidentiary hearing, then he must so inform the Court within thattime. The Commonwealth shall have two weeks thereafter torespond. Obviously, it would be preferable if Lopez and theCommonwealth could agree on the schedule and simply file a jointsubmission. Although Lopez "is not entitled to discovery as amatter of ordinary course," Bracy v. Gramley, 520 U.S. 899,904 (1997), discovery may well be appropriate in this case, and Lopezmay make an appropriate request under Rule 6 of the RulesGoverning Section 2254 Cases in the United States DistrictCourts. See Bracy, 520 U.S. at 904. The hearing and anyrelated discovery shall focus solely on facts surrounding Garciaand his possible role in the murder, and on facts surrounding thegovernment's possession and handling of information relating toGarcia.
1. The judge properly instructed the jury that Diaz'stestimony should only be considered in relation to Lopez's"knowledge, intent, motive, or method." Lopez, 433 Mass. at 414n. 4.
2. Lopez sought to present a State trooper to testify thatRodriguez told him that her problems with Lopez did not beginuntil a few months before the victim's disappearance (well afterLopez allegedly told his story to Diaz), and a defense expert totestify that Diaz had told him that Rodriguez had a "`partyattitude' after the victim's death." Id. at 414.
3. Both the Commonwealth and Page True, Warden of the SussexState Prison, are named respondents. The Commonwealth has notraised any issue regarding the proper respondent, so the Courtdoes not address whether the Commonwealth should remain in thecase. In this case, the question obviously is a purely technicalone and of no moment.
4. Reference to the Fifth and Sixth Amendments is for the sakeof convenience; obviously the rights implicated come under theFourteenth Amendment's incorporation of those amendments asagainst state governments.
5. See also Bagley, 473 U.S. at 675 (due process doesnot require the prosecutor "to deliver his entire file to defensecounsel, but only to disclose evidence favorable to the accusedthat, if suppressed, would deprive the defendant of a fairtrial") (citations omitted).
6. The law in this area has become more defendant-friendlysince Moore was decided. Moore required a specific requestfrom the defense for a Brady violation to occur,408 U.S. at 794-95, whereas under Bagley, the defense need not make anyrequest to trigger a prosecutor's affirmative duty to discloseexculpatory evidence, 473 U.S. at 682.
7. In Mendez v. Artuz, No. 98 Civ. 2652, 2000 WL 722613,at *13 (S.D.N.Y. June 6, 2000), the court concluded there was aBrady violation where the undisclosed suspect had equalopportunity and stronger motive than the defendant.
8. The judge may also authorize discovery. Mass. R. Crim. P.30(c)(4).
9. The Supreme Court decided two cases titled Williams v.Taylor in 2000, involving different petitioners, the other oneof which, 529 U.S. 362 (2000) (discussed supra), addressed theproper interpretation of 28 U.S.C. § 2254(d).
10. Keeney overruled Townsend to the extent that thelatter called for a "deliberate bypass" standard for excusingprocedural default in state courts, rather than a "cause andprejudice" standard. Keeney, 504 U.S. at 5-6. That distinctionis not relevant here.