Green v. Kenneway, CIVIL ACTION NO. 18-12298-DPW
| Citation | 390 F.Supp.3d 275 |
| Decision Date | 15 July 2019 |
| Docket Number | CIVIL ACTION NO. 18-12298-DPW |
| Parties | Julian GREEN, Petitioner, v. Steven KENNEWAY, Superintendent, Respondent |
| Court | U.S. District Court — District of Massachusetts |
David A.F. Lewis, David A.F. Lewis, LLC, Cambridge, MA, for Petitioner
Eva M. Badway, Attorney General's Office, Boston, MA, for Respondent
This case arises out of the 2010 jury trial and conviction of the Petitioner, Julian Green, in Massachusetts State Superior Court for second-degree murder. Mr. Green was sentenced to life in prison and he appealed.
Mr. Green's co-defendant, Anthony Russ, was thereafter acquitted of murder charges involving the same victim in a separate trial. Mr. Green then filed a motion in the Superior Court for a new trial while his direct appeal was pending, arguing that evidence presented during Mr. Russ's trial constituted newly discovered evidence of a third-party perpetrator. The Superior Court denied the motion and Mr. Green timely appealed that decision. The Massachusetts Appeals Court, after consolidating the two appeals, affirmed in an unpublished decision2 and the Supreme Judicial Court declined further appellate review.
Mr. Green now seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 on the basis that the Superior Court's denial of his motion for a new trial deprived him of due process and the right to present a defense. Mr. Green also argues that his trial counsel was constitutionally ineffective because he failed both to raise certain evidentiary objections and to offer evidence of a third-party perpetrator.
On July 18, 2007, shots were fired from at least two different guns into a residence located at 36 General Patton Drive in Hyannis. During the shooting, a .40 caliber bullet struck and fatally wounded
Jacques Sellers, who was present in the house.
Carrie Perry, a woman who was in the house at the time of the incident gave testimony at trial that she saw "two young black Americans in jean shorts with hoodies on" running in the middle of the road immediately after the shooting; she did not, however, see either man's face. Another woman, Courtney Doyle, testified that she was sitting in her parked car across the street at the time of the incident and that she saw two African American men, one under six feet tall, and one about five feet, ten inches tall, wearing a tan sweatshirt and a black sweatshirt respectively.
During the investigation, police officers recovered shell casings from several .38 caliber and .40 caliber bullets and found several bullet holes in the front and side windows and in the house's siding. The police also used a canine unit to track suspects to 23 General Patton Drive, the residence of Todd Lampley. Mr. Lampley previously had been beaten by Rodney Ferguson, who was present at 36 General Patton Drive when the shooting took place.
While police were searching the area, they also recovered a glove and a black hooded sweatshirt, both of which were later tested for DNA. The tests did not contain enough information to identify any particular person as the source of the DNA taken from the glove and excluded Mr. Green as the source of the DNA taken from the sweatshirt.
As the investigation into the incident continued, Mr. Green, along with Anthony Russ, Todd Lampley, and Devarus Hampton, were identified by law enforcement officers as persons of interest. The investigators eventually focused on Mr. Green and Mr. Russ as the possible shooters. Mr. Green's girlfriend at the time, Jessica Schwenk, testified that on the day of the shooting, Mr. Green accompanied her to her grandmother's house in West Dennis. At some point during the evening, Mr. Green got a phone call and told Ms. Schwenk that his friend, Mr. Russ, needed him in Hyannis. After receiving the call, Mr. Green called Jill Parsons and asked her to bring him "something he had left in her garage." The "thing" was a gun, which Ms. Parsons brought to a CVS in Yarmouth and gave to Mr. Green. Ms. Parsons testified that Mr. Green later told her he threw the gun in the ocean.
After Mr. Green received the gun from Ms. Parsons, Ms. Schwenk drove Mr. Green to a hotel in Yarmouth and, following his instructions, then drove alone to General Patton Drive in Hyannis. She testified that she saw Mr. Green and Mr. Russ together on General Patton Drive, and that they instructed her to wait in the car on the next street over. A short while later, Mr. Green and Mr. Russ came back to her car and she drove them to the end of the road, where they ran into the woods. When he saw her later that night and the following day, Mr. Green told Ms. Schwenk that "he shot the house" because "he was helping a friend."
Mr. Green was eventually arrested and indicted by a grand jury.4 During his incarceration, Mr. Green wrote letters to Ms. Schwenk, who was staying with her mother, Sandra Schwenk. After Ms. Schwenk was arrested on different charges, her mother and her mother's friend, Lisa Steele, read certain of the letters sent by Mr. Green to Ms. Schwenk. Lisa Steele then contacted a law enforcement friend, Lt. Det. Robert Melia of the Massachusetts State Police, and told him that she believed the letters contained incriminating information about the July 18, 2007 shooting.
Ms. Steele eventually gave Det. Melia some of the letters, and Det. Melia advised her not to tamper with any of the remaining letters since they might contain material evidence in the Commonwealth's case against Mr. Green. Shortly thereafter, Sandra Schwenk gave the remaining letters to Ms. Schwenk's attorney, who, in turn, gave them to the police. Law enforcement officials never obtained a warrant for these letters.5
On January 8, 2008, a Barnstable County grand jury indicted Mr. Green for murder in the second degree, assault and battery with a dangerous weapon, discharge of a firearm within 500 feet of a dwelling, unlawful possession of a firearm, and assault with a dangerous weapon. The prosecution proceeded on a joint venture theory, reflecting the contention that Mr. Green could be found guilty even if the bullet he fired was not the one that ultimately struck and killed the victim. See Green , 92 Mass. App. Ct. 1102, 2017 WL 3317888 at *1 n. 3.6 Following an eight-day jury trial, Mr. Green was convicted on all five charges and sentenced to life in prison.
Mr. Green appealed his convictions on July 26, 2010 and, on February 17, 2012, he filed his motion with the Superior Court for a new trial under MASS. R. CRIM. P. 30(b) on the basis that, among other things, testimony presented by Devarus Hampton at the trial of Anthony Russ constituted newly discovered evidence and that trial counsel was constitutionally ineffective. The Superior Court denied the motion for a new trial on November 6, 2014. Mr. Green appealed that decision, which resulted in the consolidation of the direct appeal of his conviction and the appeal of the denial of a new trial.
On August 4, 2017, the Appeals Court affirmed the convictions and the denial of a new trial. It held that Mr. Hampton's testimony did not constitute newly discovered evidence that would entitle Mr. Green to a new trial and that trial counsel was not constitutionally ineffective. Commonwealth v. Green , 92 Mass. App. Ct. 1102, 2017 WL 3317888 (Mass. App. Ct. Aug. 4, 2017).
On September 1, 2017, Mr. Green filed an Application for Further Appellate Review ("ALOFAR") with the SJC. In particular, the ALOFAR argued that the testimony of Devarus Hampton should be considered newly-discovered, and that the Superior Court's denial of Mr. Green's motion for a new trial on the basis that newly-discovered evidence regarding a third-party perpetrator violated his federal and state constitutional right to present a defense. Mr. Green also argued that trial counsel was otherwise constitutionally ineffective because of various actions he failed to take during Mr. Green's original trial, specifically by not addressing whether Mr. Lampley lied about his alibi; failing to confront and object to the prosecutor's allegedly misleading statements during closing arguments, including those statements about phone calls made to Mr. Green's cell phone; and, failing to seek the suppression of letters sent by Mr. Green to Ms. Schwenk.
On November 6, 2017, the SJC denied further appellate review. Commonwealth v. Green , 478 Mass. 1104, 94 N.E.3d 851 (Mass. 2017).
Mr. Green timely filed the present petition for habeas corpus under 28 U.S.C. § 2254 on November 2, 2018.7 The petition raises two distinct bases for relief. First, Mr. Green argues that the state courts violated his right to due process and to present a defense by arbitrarily denying his motion for a new trial and excluding evidence regarding a third-party perpetrator. Second, he argues that trial counsel was constitutionally ineffective because he failed to challenge inculpatory evidence that had no basis in the record and failed to introduce exculpatory evidence about a third-party perpetrator.
I will address the merits of each of the two claims in turn.8
Under 28 U.S.C. § 2254, if claims presented by Mr. Green were "adjudicated on the merits in State court proceedings" – as they were here – I may grant his petition for a writ of habeas corpus only if the judgment of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or if the decision was "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). The standard is highly deferential to the judgment of the state court. As with the exhaustion requirement, this approach is based on the...
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