Smith v. MacEachern

Filing 200

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS. After consideration of pertitioner's objection thereto (Docket No. 198 ), Report and Recommendation is accepted and adopted. (Franklin, Yvonne)

Case l:09-cv-10434-NMG

Document 195 Filed 02/21/18 Page lot 16

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

SAM SMITH,
Petitioner,
CIVIL ACTION

V.

NO. 09-10434-NMG

DUANE MacEACHERN,

(Superintendent),
Respondent.

REPORT AND RECOMMENDATION ON PETITIONER'S
MOTION FOR AN EVIDENTIARY HEARING. AS AMENDED
February 21, 2018
DEIN, U.S.M.J.
1. INTRODUCTION

The petitioner, Sam Smith, wasconvicted by a Suffolk County juryon June 12, 2001 of
murder in the first degree in the shooting death of Steven Gaul, and was sentenced to life

imprisonment. He filed a motion for a newtrial on June 24, 2004, which was denied on
February 10, 2006. Smith's conviction, and the denial of his motion for a new trial, were

affirmed bythe Massachusetts SupremeJudicial Court ("SJC") in an opinion dated January 11,
2008. Commonwealth v. Smith. 450 Mass. 395, 879 N.E.2d 87 (2008). On January 24,2008,

Smith sought a rehearing from the SJC, which was denied on April 4, 2008. (SA 1:656-69).^ He

^ The record below is included in the multi-volume Supplemental Answer ("SA") filed by the respondent
(Docket Nos. 14,102) and will be cited by [volume]:[pagel.

ushr

Case l:09-cv-10434-NMG Document 195 Filed 02/21/18 Page 2 of 16

then sought a writ of certiorari from the United States Supreme Court, which was denied on
October 6, 2008. Smith v. Massachusetts. 555 U.S. 893,129 S. Ct. 202,172 L. Ed. 2d 161 (2008).

On March 20, 2009, Smith filed a pro se petition for a writ of habeas corpus in this court,
which has been amended twice since counsel was appointed. (Docket Nos. 1, 20,110-1).

Therein, Smith alleged, inter alia, that the prosecutor's exercise of a peremptorychallenge to

exclude a transgendered individual violated the Equal Protection Clause of the Fourteenth

Amendment (Ground One). The SJC had addressed this issue in itsopinion, and reviewed the

colloquy between counsel and the trial judge relating to the peremptory challenge in detail.
Smith. 450 Mass, at 404-07, 879 N.E.2d at 95-97. In denying Smith's appeal, the SJC concluded

that "thefactual ambiguity surrounding the juror's sex, transgendered status, and sexual

orientation, aswell asthe motive or reason for the prosecutor's challenge, combined with the

absence ofanobjection from defense counsel when the challenge was made, impeded the

trial judge's ability to draw an inference that purposeful discrimination had occurred." \± at
407, 879 N.E.2d at 97 (emphasis added).

Smith has consistently challenged the SJC's conclusion that no objection to the

challenge had been made by trial counsel. (See, e.g.. Docket No. 27 (4/27/10 Affidavit ofSam
Smith in Support ofMotion to Stay)). By reviewing theaudio tape ofSmith's jury selection

(which has since been misplaced by the trial court), habeas counsel was able to establish thata
Batson^ challenge to the Commonwealth's exercise ofa peremptory challenge had, in fact,

2In Batson v. Kentucky. 476 U.S. 79,106 S. Ct. 1712,90 L. Ed. 2d 69 (1986), the Supreme Court '^outlined
athree-part burden-shifting framework, a 'Batson challenge,' through which a defendant can dispute
the government's use ofperemptory strikes as racially motivated and demonstrate an equal protection
violation." United Statesv. Casev. 825 F.Sd 1,10 (1stCir. 2016). In J.E.B. v.Alabama exrei. T.B.. 511
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been made by defense counsel at side bar. (See Docket No. 43 (3/2/11 Affidavit of Kevin

Barron, Esq.)). On March 30, 2011, this court granted Smith a stay of the habeas proceedings to

allow him to pursue the matter further In state court. (Docket No. 50).
Smith pursued a number of motions for a new trial and other related motions inthe
state court, both before the motion judge as well as before Single Justices of the SJC. As a

result of these efforts, the state court recognized that "it is now conceded that trial defense

counsel did, after all, make an explicit 'Batson' objection in ... a timely manner." (SA IV:126-

28). Nevertheless, the state court refused to reopen Smith's case orallow him a new trial. (See
jd). Rather, the Single Justices ofthe SJC ruled twice that the alleged failure to object was not

theonly basis ofthe SJC's initial decision, and thefact of theobjection did not raise a "new" or
"substantial" issue warranting post-conviction relief. (See SA IV:168-69 ("the discovery ofthe

transcription error does not alter our previous disposition"); IV:468-73). As a result ofthese
rulings, this court lifted the stay ofthe habeas proceedings. (Docket No. 95).
This matter is presently before the court on Smith's "Renewed Motion for Evidentiary
Hearing" (Docket No. 179), as amended by "Petitioner's Supplemental Memorandum Re
Renewed Motion for Evidentiary Hearing" (Docket No. 192), which wasfiled bysuccessor

counsel. By this motion. Smith is asking this court, yet again, to send this case back to state
court for a Batson hearing.^ Specifically, as new counsel has explained:

U.S. 127,144-46,114 S. Ct. 1419,1429-30,128 L. Ed. 2d 89 (1994), theSupreme Court extended this
holding to prohibit peremptory challenges based solely on gender.

^In his renewed motion (Docket No. 179), Smith is asking foran evidentiary hearing in this court. As

explained in the Supplemental Memorandum, however, "[ajlthough prior counsel states in the motion
thatthe evidentiary hearing should be held before this Court, Mr. Smith avers that the correct forum
can onlybe the state court." (Docket No. 192at 1).
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The purpose of the hearing in state court would be to show that there was
not just one but two objections voiced by the defense to the prosecutor's
use of a peremptory challenge to prevent a transgendered individual from
serving on the jury. Both the state courts {a Superior Court justice and two

justices of the Supreme Judicial Courtacting as single justices)and the
state prosecutor have now acknowledged^ based on the corrected trial
transcript, that there was in fact an adequate objection under Batson v,
Kentucky, 479 U.S. 79,106 S. Ct. 1712 (1986) made during a sidebar
conference. However, the petitioner, Mr. Smith, who was present and
witnessed the proceedings that were held in open court, is certain that
there was an objection voiced by his counsel to the prosecutor's peremp
tory challenge of the prospective juror that occurred in open court even
before the sidebar was held. Mr. Smith states that he had the right as a

matter of due process to proceed with his appeal based on an accurate
record and that he can provethat this right was denied if permitted a
hearing.

(Docket No. 192 at 1-2).

Forthe reasons detailed herein, this court recommends to the District Judge to whom

this case is assigned that Smith's renewed motion for an evidentiary hearing, as amended, be
DENIED. Even assuming that Smith is able to credibly establish that another objection to the

Commonwealth's peremptory challenge was made, itwould not affect the outcome ofthis
case. The SJC has already rejected the argument that Smith's constitutional right to equal

protection was denied in connection with the trial judge's handling of the challenge tothe

potential juror, even assuming that defense counsel had raised atimely objection. Whether
defense counsel raised one or two objections is irrelevant to the SJC's analysis. Moreover,

Smith has not established any reason why a further stay of the habeas proceedings is

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appropriate. The habeas record is sufficiently completefor this court to address the meritsof

the habeas petition. No stay or remand to the state court iswarranted.'*
il. STATEMENT OF FACTS

This case has an extremely complicated procedural history, and more details can be
found in this court's earlier Report & Recommendation ("R&R") on Petitioner's Motion to

Amend his habeas petition {Docket No. 119) and on Petitioner's Second Motion to Stay (Docket

No. 167). The facts that follow are limited to those that are relevant to the pending motion for
an evidentiary hearing.
The SJC Decision

As noted above, Sam Smith, is currently serving a life sentence for first degree

premediated murder in the 1991 shooting death of Steven Gaui. In an opinion dated January
11, 2008, the SJC affirmed his conviction and the denial ofhis first motion for a new trial.
Therein, the SJC addressed Smith's contention that "the prosecutor improperly used a

peremptory challenge to remove a juror who may have been either homosexual or

transgendered, in violation of the equal protection clause and the defendant's constitutional
right to a fairly representative jury." Smith. 450 Mass, at 404, 879 N.E.2d at 95. The SJC
described the relevant facts as follows:

The empanelment process included individual questioning by thejudge of
all the jurors. After the jurorin question responded to the judge that he
was a hairdresser's assistant and worked in a beauty salon, the prosecutor

attempted to challenge the juror for cause because, the prosecutor said,
the juror had some "identification issues," seemed to bea man dressed as
a woman, and appeared to have breasts. The defense counsel responded.

^Nothing herein Is intended to reflect any view as tothe merits of the habeas petition. That Issue has
yet to be reached because of the numerous requests for astay orextensions filed by the petitioner.
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Document 195 Filed 02/21/18 Page 6 of 16

"I see a man who maybe at best Iwould argue might be a homosexual. And
if the Commonwealth's intention is to challenge on the homosexuals...."
The judge immediately denied the challenge for cause, and the prosecutor

promptly exercised a peremptory challenge. Thefollowing exchange then
occurred:

DEFENSE COUNSEL: "Your Honor, I'd like to put on the record that I'm

beginning to see a pattern on the basis of the Commonwealth with
the exclusion of a homosexual, white male. So Iwant to put that on
the record as well."

THE JUDGE: "Okay. You've put it on the record."
DEFENSE COUNSEL: "For the Court's consideration. Thank you."

THE PROSECUTOR: "Just so I may be crystal clear, there's absolutely

no pattern. Idon'teven know ofany even homosexuals that have
been before us."

"This particular gentleman was dressed, in my opinion, like a female
and he has breasts and so forth. And, frankly, Iwas just looking at this
from a common sense point of view."

'This guy has a lot ofidentification issues, and Idon't—"
THE JUDGE: "Well, first of all you have a right to present a challenge.

You can challenge a person for any reason, as long as it's notillegal.
It's very simply put."

Defense counsel stated nothing furtheraboutthe juror, andthe empanelment procedure moved to the next juror.
Id at 404-05, 879 N.E.2d at 95-96.

TheSJC then ruled that it was not going to reach the previously undecided question

"whether the exercise of a peremptory challenge to remove ajuror because of his or her sexual
orientation or because the juror was transgendered would violate the guarantees ofart. 12 or

the equal protection clause" "because the record does not supply the necessary factual
foundation." jd at 405, 879 N.E.2d at 96. In particular, the Court ruled:
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The exchange between counsel and the judge during the voirdire of the
jurorreflects confusion in several respects. Defense counsel appeared to
object to the prosecutor's supposed use of a peremptorychallenge to
remove the juror on the basis of homosexuality, while the prosecutor
seemed clearly to focus on what he perceived to be the transgendered

appearance ofthe juror. None ofthe judge's comments offers additional
insights about the juror, and thus we have no information about the juror's
sexor transgendered status beyond the superficial observation that the
juror appeared, at least to one person, to bea man with breasts, dressed as
a woman. Thejuror did not identify himself as homosexual, and there was
no evidence offeredfrom any other sources on this issue. Further adding to
the ambiguity, defense counsel did not make an explicit objection to the
challenge, and instead only "put on the record" that she was "beginning to
see a pattern" of removing white male homosexuals.

Id. in light ofthefact that "defense counsel neither objected tothe prosecutor's challenge nor

asserted that a pattern of improper exclusion actually had been established[,]" the Court ruled
that"counsel did not trigger an obligation on thejudge's part to make a finding whether the

presumption of propriety was rebutted."

at406,879 N.E.2d at97. In addition, the Court

found thatthere was no independent obligation on the part ofthejudge to make an inquiry

"given the factual uncertainty in this case about what, if any, discrete 'grouping' the juror might
fit lnto[.]" \± Finally, the SJC rejected Smith's equal protection argument on the grounds, as

quoted above, that "[tjhe factual ambiguity surrounding the juror's sex, transgendered status,
and sexual orientation, as well as the motive or reason forthe prosecutor's challenge,
combined with the absence of an objection from defense counsel when the challenge was

made, impeded the trial judge's ability to draw an inference that purposeful discrimination had
occurred." 1^ at 407, 879 N.E.2d at 97.
The First Stav of the Habeas Proceedings

The habeas petition as filed by Smith pro se, and amended by his first counsel, alleged
thatthe court's handling ofthe potential juror described above violated Smith's constitutional
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equal protection rights. (Docket Nos. 1 &20 at Ground One). Smith's counsel withdrew due to
an Irretrievable breakdown of communication with his client, and this court appointed new

counsel, Kevin Barron, to represent Smith on October 20,2010. (See Docket Nos. 27,31-34).
On March 2,2011, Smith, through counsel, filed a motion to stay these habeas proceedings.

(Docket No. 41). The motion was supported by an affidavit from Attorney Barron (Docket No.

43), who attested that he had gone to Suffolk Superior Court and listened to thetapeofthe
June 5, 2001 jury selection in Smith's case (1l 2) and had heard defense counsel say "Batson
violation" after the Commonwealth had stated that the potential juror has an "identification

issue" and that "the person seems to ~ appears to have breasts and things along those lines..."
m

3-4).

Smith sought a stayof proceedings in this court to pursue the matterin the state court

on the grounds that "[b]y mentioning Batson, trial counsel alerted the trial Court tothe need
for an inquiry on the prosecutor's discriminatory purpose as evidenced by his statement that
the juror had 'identification issues' and was a 'man with breasts and that sort of thing'.
(Docket No. 42 at 2). Such further state court review was needed, according to Smith, because
the SJC had not reached the merits of his equal protection claim dueto trial counsel's alleged

failure to object. {\± at 2-3). On March 30,2011, this court allowed Smith's motion to stay,
over the Commonwealth's objection, and Smith was ordered to file periodic status reports

regarding the progress of his state court proceedings. (Docket No. 50).
The State Court Proceedings

Smith's casewas actively litigated in the state courtfollowing remand, and thiscourt

will address only the most relevant motions. Suffice itto say. Smith's efforts to obtain a new
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trial, or an evidentiary hearing, were unsuccessful. Moreover, during the course of these state

court proceedings, it came to light that the audio tape had been misplaced bythe court after it
had been reviewed by Attorney Barron. (See Docket No. 128-1 (1/5/16 Affidavit of Attorney
Barron)).

Ahearing was held on December 19,2011 on Smith's motion for collateral relief before

the motion judge who had decided the first motion for a new trial.^ In denying the motion in an
order dated December 21,2011, the motion judge stated that "it is now conceded that trial
defense counsel did, after all, make an explicit 'Batson' objection in what seems to this judge to

have been a timely manner." (SA IV:126-27). Nevertheless, the motion judge determined that
the matter was best decided by the SJC (orthe habeascourt) since "it is stiil undecided ifa jury

challenge based on a potential juror's homosexuality or transgendered status is a violation of
Article 12or the Equal Protection clause; there remains a presumption that a jury challenge is

proper; the record remains unclear whether the challenged juror was male, female, homo
sexual or transgendered; and it is impossibie to determine the prosecutor's motive for the

challenge." (jd at 127). On December 3, 2012, Smith filed an application for leave to obtain
further appellate review ("ALOFAR") with a single justice of the SJC pursuant to Mass. Gen.
Laws ch. 278, § 33E. (SA IV:2).

The Single justice of the SJC denied the ALOFAR on March 29, 2013, finding that the
application presented no "newand substantial question." (SA IV:168). The Justice
acknowledged the transcription error, and noted that the "discovery serves to correct our

The trial judge had retired before Smith filed his first motion for a new trial. (See SA IV:126).
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previous understanding (based on the mistaken transcript) that defense counsel did not make
an explicit Batson objection." (]d at 169). Nevertheless, the Single Justice concluded that

Smith'sgender discrimination claim had "received full consideration" in his direct appeal, and
did not need to be revisited, especially since "and contrary to the defendant's contention, this
court did not reject the defendant's gender discrimination claim based solelyon waiver

grounds." (\±). Since the absence ofan express objection "was merely onefactor in the
court'sanalysis[,]" the "transcription error" did not require a change to the Court's decision.
(1^).

Smith continued to pursue his efforts to obtain a Batson hearing in state court. (See,

e.R.. SA IV:460-62). Despite a lack ofsuccess, on September 27,2013, Smith, through counsel,
filed a third motionfor collateral relief, which repeated his request for a Batson hearing. (SA

IV:196). The motion judge heard oral argument, and issued a decision on May 22, 2014 denying
the motion. Qd at 196-98). The motion judge found "no reason to, in effect, reconsider my
denial ofthe original Motion for a Batson HearingU" especially in light ofthe March 29, 2013
Single Justice decision, (jd at 197).
Smith filed a second ALOFAR with a Single Justice of the SJC pursuant to Mass. Gen.

Laws ch. 278, § 33E on June 23, 2014. (SA IV:172). In a memorandum of decision dated

December 4, 2014, his request was again denied on the basis that the issue raised was neither
"new" nor "substantial." (SA IV:468). As the Single Justice found;

Here, the sole issue raised inthe defendant's motion is not "new." Indeed,
it was addressed, in detail, in the full court's decision on the defendant's
direct appeal, as well as being the key issue in his second and third motions
for a new trial, and in the single justice's decision denying his first
gatekeeper petition.

[10]

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The issue is also not "substantial." While the defendant insists that the trial

judge had no discretion to deny his request for a Batson hearing, that is not
the case. As the full court noted in its decision, the challenged juror did not

identifyas homosexual or transgender (the defendant's asserted reason for
the necessity of a Batson hearing in his second and third motions for a new
trial), and the prosecutor's stated reasons for his peremptory challenge are
varied and unclear. Moreover, the record of the voir dire proceedings
shows that the defendant did not seek a hearing on the ground that there

had been a pattern of exclusion of all members of the venire who were
homosexual.

Qd at 470-71). The Single Justice further concluded that "[i]n its decision affirming the
defendant's conviction, the full court addressed, in depth, both the defendant's due process

and equal protection claims concerning this peremptory challenge." (jd at 472). In so

concluding, the Single Justice acknowledged that the record had been "clarified" and that the
defendant had requested a Batson hearing at trial, (jd at n.l). Nevertheless, the Single Justice
concluded that no relief was warranted since "the full court had decided the issue based on
considerations other than waiver." (Id.).
The Return to Federal Court

Based on the state court rulings, this court terminated the stay so that the habeas

proceedings could continue. (Docket No. 95). On April 29, 2015, Smith (through Attorney
Barron) moved to amend his habeas petition to update the record to include the proceedings
that had ensued in state court, and to add a new claim that the prosecutorfailed to disclose

Bradv material, namely information about an allegedly pending jointfederal and state

investigation involving two percipient witnesses. (Docket Nos. 110, 111). After hearing, this
court recommended that the motion be allowed to the extent it clarifiedthe existing claims,

but denied as to the proposed additional new claim. (Docket No. 119). This court's R&R was

adopted by the District Judge on November 30, 2015. (Docket No. 126). Thereafter, Smith
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sought leave to stay the instant proceedingto pursue the Bradv claim in state court, on the
basis that he had newly discovered evidence of a joint state and federal investigation. (Docket
No. 143). This court issued a detailed R&R on February 17, 2017, recommending that the stay
be denied. (Docket No. 167). This recommendation was adopted bythe District Judge on
March 28, 2017. (Docket No. 173).

On May 15, 2017, Attorney Barron filed the "Renewed Motion for Evidentiary Hearing"
which isthe subject of this decision. (Docket No. 179). Therein, he wasseeking an evidentiary

hearing in this courton the Batson challenge. His requestwas based on Smith's contention

that, in addition to the Batson objection" made at sidebar, he recalls that the Commonwealth

had objected to the potential juror in open court, and that lead defense counsel had objected
to the Commonwealth's objection, (jd). In particular. Smith recalls that after the juror in

question was found indifferent by the judge; "[tjhe prosecutor became agitated and slammed
his pen down onto the table as he said 'Challenge'." (Docket No. 183-2 (3/22/17 Smith

Affidavit) at H2). Smith then nudged his trial counsel who said "Objection your Honor." (\±
11^ 3-4). 'The prosecutor then responded without any remark from the trial Judge, 'He has an

identity crisis'" at which point the prosecutor requested a side-bar conference, (jd HH 5-6).
Shortly afterthis motion was filed. Attorney Barron filed a motion to withdraw as
counsel. (Docket No. 182). The motion was allowed, and new counsel was appointed on

August 10, 2017. The court allowed supplemental briefing on the Renewed Motion for an
Evidentiary Hearing. In a memorandum filed onJanuary 5, 2018, new counsel made it clear
that Smith is seeking an evidentiary hearing in the state court, and that "[tjhe purpose ofthe

hearing in state court would be to show thatthere was not just one but two objections voiced
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bythe defense to the prosecutor's use of a peremptory challenge to prevent a transgendered
individual from serving on the jury." (Docket No. 192 at 1-2).
III.

DISCUSSION

As detailed above, the fact that there was a Batson objection made at sidebar was

presented to, and accepted by, the Single Justices ofthe SJC, yet they declined to reopen the
issue whether the trial judge violated Smith's equal protection rights by allowing the Common

wealthto exercise its peremptory challenge. Smith seeksto have an evidentiary hearing to add
the "fact" that there was an objection to the Commonwealth's exercise of its peremptory

challenge even before the parties went to side bar. This potential evidence, even iftrue, does

not expand the record in any significant way. The fact that an objection was made has already
been conceded. Furthermore, the proffered testimony does nothing to address the SJC's
concern that counsel had not "asserted that a pattern of improper exclusion actuallyhad been

established," but had only stated that she was putting on the record "[f]or the court's
consideration" that she was "beginning to see a pattern on the basis of the Commonwealth
with the exclusion of a homosexual, white, male." Smith. 450 Mass, at 406, 879 N.E.2d at 97.
CompareSanchez v. Roden. 753 F.3d 279,286-87 (1st Cir. 2014) (defense counsel expressly
stated at trial that he objected to the Commonwealth's pattern of challenges against young,

male, African Americans, and confirmed that hewas making a Batson challenge). Nor does it
address the SJC's concern that counsel had not identified whether she was objecting because

the potential juror was homosexual ortransgendered. See Smith. 450 Mass, at 405, 879 N.E.2d
at 96. Thus, regardless of whether Smith Is legally entitled to an evidentiary hearing in
connection with this habeas petition, he has not established any need for the hearing. See
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Culien V. Pinholsten 563 U.S. 170,185-86,131S. Ct. 1388,1400-01,179 L. Ed. 2d 557 (2011)

(discretion of federal habeas courts to take new evidence is limited).
Moreover, Smith has not even addressed any reason why a stay of the instant

proceedings would be appropriate to enable him to return to state court. This court has

already stayed these proceedings once (and for a considerable period of time) to enable Smith
to present his issues concerning the sufficiency of the juryselection recordto the state court.

Clearly the information contained in his affidavit about what wassaid during juryselection was
known to Smith at the time the issue was being presented to the state courts. Astay of a

habeas petition pending consideration ofissues by the state court® is "available only in limited
circumstances." Rhines v. Weber. 544 U.S. 269, 277,125 S. Ct. 1528,1535,161 L. Ed. 2d 440

(2005). Thus, there must be "good cause for the petitioner's failure to exhaust his claims first in
state court[,]" the claims cannot be "plainly meritless" and the petitioner cannot beengaged
"in abusive litigation tactics or intentional delay." ]d at 277-78,125 S. Ct. at 1535. In the
instant case, there is no "good cause" forSmith notto have presented his affidavit to the state

court in connection with his challenge to the transcript, and, as noted above, his assertions of

fact do not add anything substantive to the record. While this court is not prepared to rule that
Smith has engaged in abusive litigation tactics, the time has come to have the habeas court
address the merits of his petition. In short, to the extentthat he is asking for a stay, there is no
basis for this court to issue one.

® respondent argues that a stay is not available to develop a factual record, asopposed to
The

exhausting legal claims. (See "Respondent's Response to Petitioner's Supplemental Memorandum"
(Docket No. 193) at3-4). This court declines to reach this issue, and will assume that astay could be
warranted Inorder to expand a factual record in appropriate circumstances.
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Finally, Smith relies on Chessman v. Teets. 354 U.S. 156, 77 S. Ct. 1127,1 L Ed. 2d 1253

(1957), in supportof his requestfor a hearing as to the sufficiency of the transcript. (See
Docket No. 192 at 2). That reliance is misplaced. In Chfessman. a death penaltycase, the
V

stenographerdied beforethe trial transcript was completed. The transcript wasthen

completed by a new stenographer with close tiesto the prosecution team, and with the

assistance of prosecution witnesses. The defendant, who was pro se, was excluded from this

process. ^ id at 158-61, 77S. Ct. at 1128-30. The Supreme Court held that under these
circumstances, "the ex parte settlement [creation] ofthis state court record violated

petitioner's constitutional right to procedural due process. We think the petitioner was entitled
to be represented throughout those proceedings either in person or by counsel." ]d at 162, 77
S. Ct. at 1130. In the instantcase, there is no evidence that the Commonwealth or anyof its
witnesses were involved incompiling the transcript. To the extentthat there have been any

modifications to the transcript, they have been made at Smith's request —neither he norhis
counsel have been excluded from anything relating to the creation or review of the transcript.

Moreover, Chessman involves a direct appeal, and nota habeas proceeding. In short, there is

nothing in Chessman that mandates an evidentiary hearing under the facts presented here.
IV. CONCLUSION

Forall the reasons detailed herein, this court recommends to the District Judge to

whom this case Is assigned that Smith's "Renewed Motion for Evidentiary Hearing" (Docket

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Case l:09-cv-10434-NMG Document 195 Filed 02/21/18 Page 16 of 16

No. 179), as amended by "Petitioner's Supplemental Memorandum Re Renewed Motion for

Evidentiary Hearing" (Docket No. 192), be DENIED.^

/s / Judith Gail Dein
Judith Gail Dein

United States Magistrate Judge

^The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72any party who objects to
these proposed findings and recommendations must file awritten objection thereto with the Clerk of
this Court within 14days ofthe party's receipt ofthis Report and Recommendation. The written
objections must specifically identify the portion ofthe proposed findings, recommendations or report to
which objection is made and the basis forsuch objections. The parties arefurther advised that the
United States Court ofAppeals for this Circuit has repeatedly indicated that failure to comply with this
Rule shall preclude further appellate review. See Keating v. Sec'v ofHealth &Human Servs.. 848 F.2d
271, 275 (1st Cir. 1988); United States v. Valencia-Copete. 792 F.2d 4,6 (1st Cir. 1986); Park Motor Mart.
Inc. V. Ford MotorCo.. 616 F.2d 603, 604-605 (1stCir. 1980); United Statesv.Vega. 678 F.2d 376,378-79

(1st Cir. 1982); Scott v. Schweiker. 702 F.2d 13,14 (1st Cir. 1983); seealso Thomas v. Arn. 474 U.S. 140,
153-54,106 S. Ct. 466,474,88 L. Ed. 2d435 (1985). Accord Phinnev v. Wentworth Douglas Hosp.. 199
F.3d 1,3-4 (1st Cir. 1999); Henlev Drilling Co. v. McGee. 36 F.3d 143,150-51 (1st Cir. 1994); Santiago v.
Canon U.S.A.. Inc.. 138 F.3d 1,4 (1st Cir. 1998).

[16]