Hudson v. Kelly
| Docket Number | 21-1899 |
| Decision Date | 05 March 2024 |
| Citation | 94 F.4th 195 |
| Parties | Mac HUDSON, Petitioner, Appellant, v. Sheila KELLY, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]
Alan D. Campbell for appellant.
Eva M. Badway, Assistant Attorney General of Massachusetts, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellee.
Before Barron, Chief Judge, Howard and Gelpí, Circuit Judges.
Mac Hudson appeals from the District Court's denial of his petition for a writ of habeas corpus challenging his 1997 Massachusetts state-law convictions for, among other things, second-degree murder. We affirm.
In 1990, Hudson and Charles Hughes were tried together in Massachusetts Superior Court for charges relating to the April 22, 1989 shootings of Derek Twitty and Mark Jones while they were selling heroin in Boston, Massachusetts.1 Twitty died from his injuries, while Jones survived. The charges were for first-degree murder, assault and battery by means of a dangerous weapon, assault with intent to murder, assault with intent to rob, and unlawful possession of a firearm. Hudson and Hughes were found guilty of the lesser-included offense of second-degree murder and the other charged offenses. Commonwealth v. Hudson, 30 N.E.3d 133, 2015 WL 2037025, at *1 (Mass. App. Ct. 2015) (unpublished table decision). The Massachusetts Appeals Court ("MAC") later reversed those convictions for reasons not relevant here and remanded the case for a new trial. See Commonwealth v. Hudson, 634 N.E.2d 154 (Mass. App. Ct. 1994) (unpublished table decision).
Hudson and Hughes were tried for the second time in 1997 in connection with the shootings of Twitty and Jones. Hudson, 2015 WL 2037025, at *1. Hudson's resulting convictions are the subject of the federal habeas petition before us here.
At the start of jury empanelment for this second trial, Hudson was informed by the trial judge that sixteen jurors would be seated and that he would have sixteen peremptory challenges. See Commonwealth v. Hudson, 735 N.E.2d 1272, 2000 WL 1477124, at *1 (Mass App. Ct. 2000) (unpublished table decision).
Toward the end of the third day of jury selection, by which point fifteen jurors had been seated, the trial judge commented about trying to seat the sixteenth juror by stating "[w]e're going to try one more, and after that I quit." After another juror was interviewed and excused for cause, the trial judge announced that the proceedings would go forward with only fifteen jurors. At this point, Hudson had exercised only eleven of his sixteen allotted peremptory challenges, and counsel objected, stating that he had been saving his challenges to use on a "perfect [sixteenth] juror." The trial judge noted the objection yet proceeded to trial with the fifteen jurors.
At trial, the Commonwealth called four individuals to testify as eyewitnesses to the shootings -- Keil Kimbrough, Dwayne Moody, Larry Brown, and Jones, the surviving victim. See Hudson, 2015 WL 2037025, at *1. Each of these witnesses had also testified at the first trial of Hudson and Hughes. See Commonwealth v. Hudson, 446 Mass. 709, 846 N.E.2d 1149, 1153 (2006). Moody identified Hudson and Hughes as having committed the shooting, while Jones stopped short of positively identifying Hudson as his attacker. Hudson, 2015 WL 2037025, at *1.
At the first trial, Kimbrough testified that he had been present at the scene of the shootings. Hudson, 846 N.E.2d at 1153. However, prior to the second trial, Kimbrough signed an affidavit that recanted his testimony at the first trial, stated that he had not in fact been present at the scene of the shooting, and claimed that a police officer had instructed him on how to testify in exchange for "consideration" in pending criminal matters of his own. Id. at 1154. For that reason, Kimbrough invoked his Fifth Amendment right against self-incrimination when called by the Commonwealth to testify at the second trial. Id.
After appointing counsel for Kimbrough and considering the issue, the trial judge concluded that there was "some risk" that Kimbrough could expose himself to a prosecution for perjury were he to testify and consequently declared Kimbrough unavailable. Id. The trial judge then permitted the Commonwealth to read into the record the entirety of Kimbrough's testimony from Hudson's and Hughes's first trial. Id.
Brown, during his testimony at the second trial, positively identified Hudson as one of Twitty's and Jones's shooters, although he had not done so during his testimony at the first trial. Id. at 1159. Hudson objected to Brown's first-time, in-court identification and moved for a mistrial, and the trial judge denied that motion. Hudson, 2000 WL 1477124, at *3.
Hudson was ultimately convicted in this second trial of second-degree murder, assault and battery with a dangerous weapon, armed assault with intent to murder, armed assault with intent to rob, and unlawful possession of a firearm. Hudson, 2015 WL 2037025, at *1. He received a sentence of life imprisonment for second-degree murder, a consecutive sentence of eight-to-ten years' imprisonment for assault and battery, and lesser concurrent sentences for the remaining offenses.
Hudson appealed his convictions. On direct appeal to the MAC, he pointed to several alleged errors by the trial court, including its handling of the jury-selection process, its decision to allow Kimbrough to exercise his privilege against self-incrimination and then to permit Kimbrough's testimony from the first trial to be read into the record, and its refusal to declare a mistrial following Brown's surprise identification of Hudson. For reasons we will detail below, the MAC affirmed, see Hudson, 2000 WL 1477124. The Massachusetts Supreme Judicial Court ("SJC") denied Hudson's application to obtain further appellate review ("ALOFAR"). See Commonwealth v. Hudson, 737 N.E.2d 467 (Mass. 2000) (unpublished table decision).
In 2001, Hudson filed a motion for a new trial pursuant to Massachusetts Rule of Criminal Procedure 30(b). In that motion, Hudson raised, among other claims, an ineffective assistance of counsel claim which precipitated five years of litigation, culminating in the SJC's denial of relief. See Hudson, 846 N.E.2d at 1152.
In 2006, following the unfavorable resolution of his first new trial motion, Hudson filed the petition for a writ of habeas corpus that is at issue in this appeal pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Massachusetts. Before the District Court had reached the merits of his habeas petition, Hudson sought and was granted a stay of those federal proceedings so that he could pursue a second new trial motion in state court. Hudson's second new trial motion was denied by the state trial court, and Hudson appealed.
While that appeal was pending, Hudson filed a third new trial motion in state court, which was also denied. Hudson appealed the denial of that motion as well, and the MAC consolidated its appellate review of both motions. In 2015, the MAC affirmed the denials of Hudson's second and third new trial motions in the last reasoned state court opinion authored in this case to date. See Hudson, 2015 WL 2037025. Hudson then filed an ALOFAR, which the SJC denied. See Hudson, 35 N.E.3d 720.
Hudson subsequently returned to federal court and moved to reopen and amend his stayed petition for habeas corpus. The District Court granted Hudson's motions, after which Hudson filed his now-operative petition, which raised ten grounds for habeas relief, including, as relevant to this appeal, that the trial court violated Hudson's right to due process by (1) "permitting the prosecution to read the prior testimony of the key Commonwealth witness [Kimbrough] to the jury" after determining that he had asserted a valid Fifth Amendment right against self-incrimination and was thus unavailable to testify; (2) deciding "while empaneling the jury to change the number of jurors to be seated," thereby "unfairly prejudic[ing] [Hudson's] use of his peremptory challenges"; and (3) "refus[ing] to declare a mistrial after a surprise, first-time, in-court identification of [Hudson] by Larry Brown."
Hudson's petition for habeas corpus was referred to a United States Magistrate Judge for all pretrial proceedings. The Magistrate Judge then issued a Report and Recommendation suggesting that the District Court withhold judgment on the issue of Kimbrough's testimony pending further briefing by the parties but deny Hudson's petition on all other grounds. After receiving the parties' additional briefing on the issue of Kimbrough's testimony, the Magistrate Judge issued a second Report and Recommendation suggesting that the District Court deny Hudson relief on that ground as well.
Hudson subsequently filed objections to both Reports and Recommendations, after which the District Court overruled Hudson's objections, accepted and adopted both Reports and Recommendations, and denied Hudson's petition in full. Hudson timely appealed.
In cases where, as here, " 'the district court undertakes no independent fact-finding [and] we are effectively in the same position as the district court vis-à-vis the state court record,' our review of a district court's denial of a habeas petition is de novo." Porter v. Coyne-Fague, 35 F.4th 68, 74 (1st Cir. 2022) (alteration in original) (quoting Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)). "Our review of the state court decision is, in contrast, governed by [the Antiterrorism and Effective Death Penalty Act ("AEDPA")], which 'demands that a federal habeas court measure a state court's decision on the merits against a series of peculiarly deferential standards.' " Quintanilla v. Marchilli, 86 F.4th 1, 15 (1st Cir. 2023) (quoting Porter, 35 F.4th at 74 (internal quotation marks omitted)).
AEDPA's...
To continue reading
Request your trial