570 F.3d 414 (1st Cir. 2009), 08-1751, Foxworth v. St. Amand

Docket Nº:08-1751.
Citation:570 F.3d 414
Opinion Judge:SELYA, Circuit Judge.
Party Name:Robert FOXWORTH, Petitioner, Appellee, v. Peter ST. AMAND, Respondent, Appellant.
Attorney:Susanne G. Reardon, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakely, Attorney General, was on brief, for appellant. John M. Thompson, with whom Linda J. Thompson and Thompson & Thompson, P.C. were on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, SELYA and SILER,[*] Circuit Judges.
Case Date:June 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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570 F.3d 414 (1st Cir. 2009)

Robert FOXWORTH, Petitioner, Appellee,


Peter ST. AMAND, Respondent, Appellant.

No. 08-1751.

United States Court of Appeals, First Circuit.

June 29, 2009

         Heard Jan. 6, 2009.

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         Susanne G. Reardon, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakely, Attorney General, was on brief, for appellant.

          John M. Thompson, with whom Linda J. Thompson and Thompson & Thompson, P.C. were on brief, for appellee.

          Before LYNCH, Chief Judge, SELYA and SILER,[*] Circuit Judges.

          SELYA, Circuit Judge.

          This habeas appeal presents several challenging questions. Two of these are particularly intriguing. The first involves the effect of an eyewitness's expression of less than complete certitude about a crucial out-of-court identification that he previously made. The second is a multi-part question. The initial part deals with the

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cut-off point for determining what constitutes " clearly established Federal law" within the purview of 28 U.S.C. § 2254(d)(1), a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. The next part of that question concerns the selection of the relevant precedent from the Supreme Court's evolving Confrontation Clause jurisprudence-a question made relevant by the Supreme Court's decision, in 1998, of Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). Because Gray has not been made retroactive to cases under collateral review, this case turns on the applicability vel non of that precedent to the redacted statement of a nontestifying codefendant under circumstances in which his objecting codefendant's name has been replaced with a cryptic designation (" Mr. X" ). As matters turn out, the answer to this part of the inquiry depends on the answer to the initial part.

         These questions arise in the context of a state-court conviction for second-degree murder. In the proceedings below the district court, acting under habeas jurisdiction, granted relief because it deemed the evidence insufficient to support the conviction and, secondarily, because it deemed the admission of the nontestifying codefendant's statement violative of the petitioner's rights under the Confrontation Clause of the Sixth Amendment. See Foxworth v. Massachusetts ( Foxworth III ), No. 03-11844, slip op. at 27 (D.Mass. May 14, 2008) (unpublished); Foxworth v. Maloney ( Foxworth I ), No. 03-11844, slip op. at 19 (D.Mass. Aug. 17, 2006) (unpublished).

         After a lengthy exegesis through this maze of problems, we reverse in part, retain jurisdiction, and certify a critical question of state law to the Massachusetts Supreme Judicial Court (SJC).

         I. BACKGROUND

         Because this appeal involves a challenge to evidentiary sufficiency, we rehearse the facts in the light most compatible with the verdict rendered by the state-court jury, consistent with record support. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a wrinkle peculiar to the exercise of federal habeas jurisdiction we grant a presumption of correctness to the state courts' factual determinations. See 28 U.S.C. § 2254(e)(1).

         Roxbury is an enclave in Boston, Massachusetts. On May 23, 1991, a group of men went to the Roxbury home of Kenneth McLean bent on buying drugs. After they arrived, matters got out of hand. Apparently, McLean was beaten. He then broke free and ran. At least one of the men chased McLean and shot him as he fled. McLean's wounds proved fatal.

         In July of 1991, a Suffolk County grand jury indicted petitioner-appellee Robert Foxworth for the murder. By way of a superceding indictment, the grand jury also charged two other men, Troy Logan and Ronald Christian, with the murder. As the case unfolded, many of the facts were undisputed; the shooter's identity, however, was hotly contested. This factual dispute became the focal point of the ensuing trial.

         The prosecution's case against the petitioner hinged on an eyewitness identification by Derek Hobson. The petitioner filed a pretrial motion to suppress the identification testimony. His motion was denied.

          At trial, Hobson testified that, at approximately 6:00 p.m. on May 23, he was walking down Brookford Street in Roxbury. He observed a man run out of a building located at 5 Brookford Street. The man yelled: " Those people are crazy." Then, another man (later identified as

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Kenneth McLean) exited the premises and ran pell-mell down the street. He had blood on his mouth and tape on one arm.

         Not heroically inclined, Hobson hid behind a car parked directly across from 5 Brookford Street. From that vantage point, he observed another man emerge from the building with a gun. That man fired three or four shots at McLean, who collapsed.

         Hobson saw the shooter for at least forty seconds from a distance of approximately fifteen to twenty feet. When the police arrived, he described the shooter as a medium-complected black male, six feet or six feet one inch in height, weighing one hundred forty pounds, and sporting a one inch " tail" that protruded from the back of his head. At trial, Hobson added that the shooter was wearing a black baseball cap and that the " tail" stuck out from under the back of the cap.

         On June 17, Detective Daniel Flynn, the officer in charge of the investigation, visited Hobson and presented him with a photo array. The array contained twenty photographs, including photographs of all three men eventually accused of the murder. Hobson selected the petitioner's photograph from the array, identifying him as the shooter. Flynn testified that Hobson acted " without hesitation."

         Later that month, the police showed Hobson another photo array. Once more, Hobson selected the petitioner's photograph from the array and identified him as the shooter.

         At trial, Hobson did not make a live in-court identification but confirmed that the petitioner was the person he had identified from the photo arrays. On cross-examination, he acknowledged that he had not seen the shooter head-on but had " seen the whole like side of his face." He also admitted that he had based his selections from the photo arrays in part on the fact that the man he remembered had a " tail" (and the petitioner was the only person with a " tail" whose picture was displayed). When pressed by defense counsel to gauge his confidence in the identification, Hobson stated that he was " eighty percent sure."

         Anthony McAfee, who was strolling along with Hobson immediately before the shooting, testified that he first observed a man running from the house, yelling " [t]hose people are crazy." Then, McLean scampered from the building. Two other men followed. One of that pair got into a car parked at the curb on Brookford Street and passed a black object to the other man. The latter proceeded to fire five or six shots at McLean. When Flynn presented McAfee with the same photo array that he initially had presented to Hobson, McAfee identified Logan as the man who handed over the black object. McAfee could not identify the shooter.

         The petitioner had filed a pretrial motion to sever his trial from that of his codefendants. He premised that motion on the potential prejudice inherent in a statement made by Logan to the police. The motion was unsuccessful, and the statement was prominently featured at the joint trial.

         Detective Flynn read the statement into evidence over the petitioner's timely objection. In an effort to avert the feared prejudice, the trial justice ordered redaction of the statement. In its redacted form, the petitioner's name was replaced with the pseudonym " Mr. X" and the statement was altered so that, after the first reference to " Mr. X," it appeared (falsely) that Logan had stated: " Cause that's how I know him by. I don't know his real name." The trial justice also admitted a copy of the redacted statement into evidence.

          In the statement, Logan related that, on the evening in question, he met two men named " Tea Lover" and " Mr. X" at a

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sandwich shop. " Tea Lover" and Logan resolved to go to McLean's apartment to buy cocaine. " Mr. X" accompanied them because McLean owed him money as a result of a prior sale of " bad" cocaine. Shortly after the group's arrival, " Mr. X" and McLean argued. " Mr. X" left the premises. Logan opted to do likewise. As he made his way downstairs, " Mr. X" was coming back upstairs. Logan noticed that " Mr. X" had a gun tucked into his waistband. Logan continued his descent and, as he was getting into a cab, heard shots.

         The statement indicated that Logan had identified " Mr. X" from a photo array. Flynn testified that the photo array was the same one that had been employed earlier in the investigation. On cross-examination by Christian's counsel, Flynn revealed that the designation " Mr. X" did not refer to Christian. Moreover, it was a replacement for the name Logan actually had used in his statement.

         The prosecution offered the redacted statement as evidence only against Logan. The trial justice gave a limiting instruction both after the reading of the redacted statement and before jury deliberations began. The gist of the instruction was twofold: that the statement could only be considered against Logan (who was being tried on a " joint venture" theory) and that the jury should not speculate about who " Mr. X" might be.

         At the...

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