Hardy v. Maloney, 113018 FED1, 18-1278

Docket Nº:18-1278
Opinion Judge:LYNCH, Circuit Judge.
Party Name:JEFFREY HARDY, Petitioner, Appellant, v. MICHAEL MALONEY, Respondent, Appellee.
Attorney:Robert L. Sheketoff on brief for appellant. Thomas E. Bocian, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief for appellee.
Judge Panel:Before Lynch, Stahl, and Lipez, Circuit Judges.
Case Date:November 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

JEFFREY HARDY, Petitioner, Appellant,


MICHAEL MALONEY, Respondent, Appellee.

No. 18-1278

United States Court of Appeals, First Circuit

November 30, 2018


Robert L. Sheketoff on brief for appellant.

Thomas E. Bocian, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief for appellee.

Before Lynch, Stahl, and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Jeffrey Hardy was convicted of first degree murder by a Massachusetts jury in 1995. Hardy, who is currently serving a life sentence in a state correctional facility, appeals the district court's denial of his petition for a writ of habeas corpus. After careful review, we conclude that the challenged state court rulings were neither contrary to nor an unreasonable application of clearly established Supreme Court precedent, and we affirm. See 28 U.S.C. § 2254(d)(1).


Because Hardy does not challenge the state's factfinding, we take the following facts from the Massachusetts Supreme Judicial Court's (SJC) decision in Commonwealth v. Hardy

(Hardy I), 727 N.E.2d 836 (Mass. 2000), supplemented by a few undisputed facts of record. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.").

Hardy spent the afternoon of April 27, 1994, in Somerville, Massachusetts playing basketball and drinking alcohol with a group that included Christopher Rogovich, Gerald Sullivan, Richard Allison, and Thomas Moran, the victim. See Hardy I, 727 N.E.2d at 838. At some point, Hardy and Sullivan left to buy marijuana laced with phencyclidine, or PCP, from a dealer. Id. at 838-39.

Sullivan and Moran smoked the drug twice later that afternoon and evening. Id. at 839. Moran, saying that the PCP was weak, complained throughout the evening that it was "fake." Id. Moran repeatedly called Sullivan and Hardy "chumps" and "idiots," because they "got beat" by the dealer. Id. Visibly upset by Moran's comments, Hardy again left, returning with a gun obtained from Steven Murphy, which Hardy hid in his pants. Id.

The group eventually drove in Hardy's car to a bar. Id. They later assembled at a Dunkin' Donuts parking lot, where Hardy and Moran exchanged insults. See id. at 839-40.

Eventually, the group drove away from the Dunkin' Donuts, but they did not get far before Hardy pulled over so that he, Sullivan, and Allison could talk privately outside. Id. When the three men returned to the car, where Moran had remained, Hardy announced, "We got to go meet the dealer." Id. Hardy drove them to a Medford park, where everyone got out and Hardy directed them where to stand. Id.

At some point, Sullivan had gotten Hardy's gun, and at trial, Rogovich testified that, in the park, Sullivan pointed the gun at Moran's head. Id. Hardy then grabbed the gun and shot Moran. Id. Moran said, "Hardy shot me in the mouth," and Hardy replied, "Now you'll shut your fuckin' mouth." Id. Rogovich then watched Sullivan, Allison, and Hardy stab Moran. Id.

Moran was found in the park at 5:30 the next morning with a gunshot wound to the face and seventy-nine stab wounds all over his body. Id. at 838. That day, Murphy, who had given the gun to Hardy, said, "That was a pretty sick thing that you did." Id. at 839. Hardy responded, "Did you hear how many times we got him? Eighty times." Id.

Hardy was charged with first degree murder. Id. at 838. At trial, the state's two main witnesses were Rogovich, who was granted immunity to testify, and Murphy. Id. at 838-39.

Hardy testified at trial and presented an alibi defense, claiming that he had gone to the Dunkin' Donuts with Sullivan to buy drugs and then to his grandfather's house. Id. at 840. Hardy also denied that Moran had expressed a problem with the PCP and denied having gotten a gun. Id. Finally, Hardy alleged inadequacies in the police investigation into other possible suspects, as part of a theory that a third party had committed the murder. See id. at 843 & n.5.

After the jury voted to convict, the judge sentenced Hardy to the mandated sentence of life in prison without the possibility of parole. Hardy appealed, and the SJC upheld the conviction and the denial of his motion for a new trial in 2000, in Hardy I. Id. at 838.

Hardy then filed a petition for habeas corpus in federal court that asserted nine claims of federal constitutional error. The district court determined that six of those nine claims were unexhausted, and stayed the petition for Hardy to exhaust the claims.

Hardy filed a second motion for a new trial, which was denied in state Superior Court. That denial was affirmed by the SJC. See Commonwealth v. Hardy (Hardy II), 984 N.E.2d 727, 730 (Mass. 2013).

When Hardy revived his habeas petition in federal court, two of his nine claims were dismissed as unexhausted. Adopting the magistrate judge's report and recommendation, the district court denied the petition on the seven remaining claims. See Hardy v. Maloney, No. 01-CV-10794-PBS, 2018 WL 1257758, at *1 (D. Mass. Mar. 8, 2018).


A state court's legal determination cannot be overturned on federal habeas review unless it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). On each of his claims, Hardy asserts the latter type of error.

A state court has unreasonably applied federal law when "it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case." White v. Woodall, 572 U.S. 415, 426 (2014). That "standard[] ensure[s] that federal habeas relief will be granted only in cases in which all fairminded jurists would agree that a final state court decision is at odds with the Supreme Court's existing precedents." Bebo v. Medeiros, 906 F.3d 129, 134 (1st Cir. 2018) (citing Harrington v. Richter, 562 U.S. 86, 102 (2011)).

We review the district court's denial of the habeas petition de novo. See Scott v. Gelb, 810 F.3d 94, 98 (1st Cir. 2016).

A. Jury Instructions

Hardy claims that the SJC unreasonably rejected his arguments that the trial judge's omission of a jury instruction requested by Hardy and the trial judge's giving of another instruction requested by the prosecution each violated his due process rights.

"As a general rule, improper jury instructions will not form the basis for federal habeas relief." Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982). That is because state law typically governs jury instructions, and an error "under state law is not a basis for habeas relief." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To succeed on a claim of instructional error where there is no federal law directly on point, then, a federal habeas petitioner like Hardy must show that the error "so infected the entire trial that the resulting conviction violates due process." Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

1. Omission of a Bowden Instruction

Hardy's first claim involves the omission of an instruction based on Commonwealth v. Bowden, 399 N.E.2d 482, 491 (Mass. 1980), about alleged inadequacies in the police investigation. The SJC upheld the district court's decision not to give the instruction. Hardy I, 727...

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