Lally v Murphy
Filing
40
District Judge Leo T. Sorokin: ORDER entered. MEMORANDUM AND ORDER.Lally's 1 PETITION for Writ of Habeas Corpus pursuant to 28:2254 is DENIED. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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THOMAS LALLY,
Petitioner,
v.
JOSEPH MURPHY,
Respondent.
Civil No. 17-10834-LTS
MEMORANDUM AND ORDER ON PETITION
FOR WRIT OF HABEAS CORPUS (DOC. NO. 1)
July 19, 2018
SOROKIN, J.
Thomas Lally, a prisoner at the Old Colony Correctional Center in Bridgewater,
Massachusetts, has filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, in which he raises a number of challenges to his conviction and sentence. His claims
relate to various perceived deficiencies by his attorney and related due process violations. The
respondent has opposed the petition, arguing none of Lally’s claims merit relief. For the reasons
that follow, the petition is DENIED.
I.
BACKGROUND
On March 16, 2006, following an eleven-day jury trial in Norfolk County Superior Court,
Lally was convicted of first-degree murder and received a life sentence. Doc. No. 1 at 1-2;1 Doc.
1
Citations to documents on the Court’s electronic docket reference the assigned docket number
and the page number from the ECF header at the top of each page.
No. 1-1 at 1; accord Commonwealth v. Lally, 46 N.E.3d 41, 45 (Mass. 2016); S.A. at 8.2 The
charges stemmed from the killing of eighty-four-year-old Marina Calabro in her home on
December 19, 2001. Lally, 46 N.E.3d at 45. The Supreme Judicial Court (“SJC”) summarized
“the facts as the jury could have found them” at Lally’s trial as follows:
The night before the murder, [Lally] slept at the victim’s house with two friends,
Jason Weir and the victim’s great-nephew, Anthony Calabro . . . who had moved
in with the victim the summer before the murder. Anthony was an intended
beneficiary of her estate when she died.
Weir was sixteen . . . , four years younger than [Lally] and two or three years
younger than Anthony. Both Weir and [Lally] . . . desired to move out of their
parents’ homes. During the fall of 2001, [Lally] stayed at the victim’s house
approximately five nights per week and Weir stayed there on the weekends.
[Lally] often commented about how he and Anthony could kill the victim and get
her money. Specifically, [Lally] said, “Wouldn’t it be funny if we pushed her down
the stairs and got her money?”; “We can kill her and no one would find out”; and
that he could “knock her over the head with a blunt object and then place her at the
bottom of the stairs to make it look like an accident.” [Lally] referred to the victim
[using obscene terms].
On the [afternoon] of the murder, . . . [Lally] obtained the victim’s frying pan and
told Weir, “Today’s the day.” Anthony went outside with [Lally’s] dog. The victim
. . . scolded [Lally] for taking her things without asking [and] put the frying pan in
the pantry. [Lally] retrieved it and then used it to hit her on the head. Next, he hit
her on the head with a tea kettle, put his hand over her mouth and nose to suffocate
her, and said, “Just go. Anthony wants it this way.”
Weir testified that he did not assist the victim because he was afraid, “freaking out,”
and crying. [Lally] told him, “We all wanted this house,” and “we’re in it together”
. . . . At [Lally’s] urging, Weir helped move the victim down the front stairs, which
were infrequently used. . . . The trio got in [Lally’s] vehicle and Anthony drove
Weir home. During the ride, [Lally] said that they needed to “bury the stuff”—
referring to the frying pan and tea kettle used in the attack, and [other items] from
the victim’s house—at Meadowbrook Pond in Norton.
Anthony and [Lally] later returned to the victim’s home; just before midnight, a
911 call was placed reporting that an elderly woman had fallen down. When the
police arrived, the deceased victim was lying at the bottom of the stairs. Anthony
and [Lally] were upstairs in the victim’s home. [Lally] had a welt on his nose, fresh
2
The respondent has filed a Supplemental Answer (cited as “S.A.”) containing the state-court
record in five bound volumes. Doc. No. 20.
2
scratch marks on his right cheek, and a bite mark on his arm. He explained to police
that he received the injuries during a fight with Anthony the prior evening.
A State police trooper noted suspicious circumstances in connection with the claim
that the deceased had fallen down the stairs . . . . Conversely, there were conditions
consistent with a fall . . . . He requested a full autopsy.
The medical examiner performed a rape kit to help to determine the cause of death,
which included taking . . . DNA samples . . . and fingernail clippings and scrapings.
. . . After determining that the majority of the victim’s injuries were consistent with
a fall, he ruled the cause of death as blunt neck trauma and the manner of death as
“fall down stairs.”
[Lally] told Weir, “We fooled everybody,” and told another friend that it was a
“perfect crime.” He gave friends varying explanations for the scratches on his face,
telling some that he received the scratches during a fight with Anthony and others
that his dog scratched him.
In March 2002, Anthony wrote two checks totaling $5,000 to [Lally] and two
checks totaling $8,000 to Weir. He also purchased a truck for [Lally] and . . .
equipment for a band that Weir was in. The three regularly stayed at the victim’s
home until shortly before it was sold, in July, 2002. Anthony received
approximately $250,000 in proceeds from the sale.
In the summer of 2002, Weir was with a friend near Meadowbrook Pond and saw
the frying pan, the tea kettle, [and other items] out in the open. After telling [Lally]
. . . the two went to Meadowbrook Pond and [Lally] threw the objects in the water.
In October, 2002, Weir’s close friend, James Morel, commented that it was a
“coincidence that [the victim] wound up the same way [Lally] said she was going
to.” Weir then told Morel about the murder. Morel alerted the Norton police . . .
[and] agreed [to wear a wire when he next met with Weir]. . . . [T]he police followed
them for three hours and recorded the pertinent parts of their conversation.
During the meeting, Weir told Morel that [Lally] had killed the victim, and although
he helped move the body and clean up, he did not participate in the killing. Weir
guided Morel to Meadowbrook Pond and pointed to the location where the items
were disposed of after the murder. Morel later accompanied police to the pond and
the police recovered [items including] the top of a tea kettle . . . . Subsequently, the
police drained the pond and found a tea kettle and a bent frying pan.
Based on this information, Weir and [Lally] were arrested . . . and charged with
murder . . . . Weir agreed to cooperate with police in exchange for having his charge
reduced . . . .
DNA profiles for [Lally], Weir, Anthony, and Morel were compared to male DNA
found on three samples from the victim’s rape kit . . . . In the initial testing, all four
were excluded as contributors to [one sample], which had been contaminated with
3
male DNA from the State police crime laboratory. Weir, Anthony, and Morel were
excluded as contributors to the fingernail scrapings and the fingernail clippings, but
[Lally] could not be excluded from either.
[Lally] testified that Weir killed the victim and that he received the injuries
observed by police the night of the murder when he attempted to intervene on the
victim’s behalf. His stepsister testified to examples of Weir’s behavior that made
her nervous and his stepfather testified to numerous arguments between Weir and
[Lally].
Id. at 45-48 (footnotes omitted).
The SJC elaborated on the DNA evidence offered at trial:
Jeffrey Hickey, a former DNA analyst with Cellmark Diagnostics . . . analyzed the
DNA using two methods. First, he performed PCR testing . . . . Hickey also
performed Y-STR testing, which separates male DNA . . . when the analyst is
unable to create a primary profile from the mixture of male and female DNA.
From the fingernail scrapings, PCR testing showed that the sample was a mix of
male and female DNA, the primary DNA profile was from the victim, a “few
secondary types” of DNA were located, and [Lally] “could not be excluded as a
potential source” of those secondary profiles. Hickey did not provide statistical
information to demonstrate the relevance of this nonexclusion PCR evidence,
explaining that Cellmark does not provide statistics on secondary profiles.
From the fingernail clippings, PCR testing was inconclusive . . . . Once Hickey
extracted only the male DNA, however, he was able to produce a Y-STR profile
containing twelve regions of DNA. He testified that the male profile created from
Y-STR testing “came back to match [Lally] at all of those regions that we tested.”
Hickey provided context for this result through statistical analysis, wherein he
compared the results of the Y-STR testing to a database of known DNA profiles
and determined that the profile occurred in one out of 1,311 Caucasian males, and
zero out of 1,108 African-American males, and zero out of 894 Hispanic males. He
explained that Y-STR statistics are “quite different” from PCR results—where you
can see numbers in the “billions [or] trillions.” In PCR testing, “a match across all
of those regions” would allow an expert to opine with a reasonable degree of
scientific certainty that a DNA profile belongs to a specific person. Conversely,
with Y-STR testing, DNA results cannot discriminate among members of the same
paternal line and the statistical likelihood is never any greater than the database
available for comparison.
Hickey also testified to contamination of [another sample from the victim’s rape kit
test by a male employee at the state crime laboratory]. . . .
Trial counsel’s cross-examination of Hickey focused on the contamination and
Hickey’s testimony at trial that [Lally] “matches” the Y-STR profile, noting that
4
Hickey stated in his report that [Lally] could not “be excluded” as a source of the
DNA in the fingernail scrapings, not that there was a match. . . .
The prosecutor commented on the DNA evidence in her opening statement and
closing argument. In her opening statement, she told the jury that the evidence
would prove that [Lally] was the “major contributor” to the right fingernail
clippings . . . . In her closing, she argued that . . . the reference to nonexclusion was
a matter of “semantics,” because Cellmark does not “use the term ‘match’” for YSTR testing, but “if you look at it, you’ll see all the numbers from [Lally]
correspond to the fingernail clippings.”
Id. at 48-50.
Lally’s timely direct appeal was stayed by the SJC pending resolution of a June 2010
motion for a new trial. Doc. No. 1-1 at 1; S.A. at 9, 15-16. The trial court held an evidentiary
hearing featuring testimony by trial counsel and two DNA experts, as well as oral argument on
Lally’s claims. Lally, 46 N.E.3d at 50; Doc. No. 1-1 at 2. The SJC summarized the post-trial
testimony with respect to DNA evidence this way:
Dr. Michael J. Bourke, a forensic scientist retained in 2005 by trial counsel and in
2009 by postconviction counsel . . . [testified] that [he] alerted trial counsel in a
pretrial memorandum to the lack of statistics [supporting the PCR evidence from
the fingernail scrapings], advised that “the correct statistic to perform on mixed
samples is the combined probability of inclusion,” and questioned the admissibility
of such evidence without statistics. The memorandum noted that the statistical
information was important because the “small to limited number of loci . . . , and
the fact that these loci are mixtures, will result in very modest random match
probabilities.” [Former Cellmark laboratory director Dr. Robin] Cotton likewise
testified that testing only a “few” loci could provide probabilities that are “very
much smaller” than the large numbers calculated using a full profile. She also
testified that statistical information could have been provided at the time of the
2006 trial if requested; however, the information was not routinely provided when
the applicable report was written.
. . . The [Y-STR] results were presented [at trial] using . . . “the counting method,”
which describes the frequency in which a DNA match is found in a given database.
A “confidence interval” adjusts that result to account for sampling errors and
identical profiles being passed through a paternal line, and thus increases the
likelihood that the same profile could be found in a population. . . . Bourke testified
that the counting method results “would be misleading without the confidence
interval correction.” He did not advise counsel about Y-STR deficiencies, but
testified that he would have had he been asked. Cotton testified that a confidence
interval could have been calculated at the time of trial, but Y-STR testing was in its
5
infancy at the time of the 2005 report and Cellmark’s policy did not provide for
such a calculation.
Lally, 46 N.E.3d at 50-51.
The trial court denied Lally’s motion. See generally Doc. No. 1-1 at 1-36. The SJC
consolidated Lally’s direct appeal with his appeal of the denial of his motion for a new trial, and
affirmed on March 3, 2016 in a published decision. See generally Lally, 46 N.E.3d at 45-60.
In his timely federal habeas petition, Lally raises seven claims:
1)
Trial counsel was ineffective, and Lally was denied due process, due to various
errors related to the use of DNA evidence at his trial;
2)
Trial counsel was ineffective for introducing Weir’s prior statements;
3)
Lally’s right to a jury trial was violated due to the jury’s exposure to Weir’s
unredacted plea agreement, and trial counsel was ineffective for allowing such
exposure;
4)
Lally was denied due process due to the admission of other bad acts evidence, and
trial counsel was ineffective for failing to object;
5)
Trial counsel was ineffective in advising Lally to testify;
6)
Trial counsel was ineffective in failing to present surrebuttal evidence regarding
Lally’s prior consistent statements; and
7)
The cumulative effect of trial counsel’s errors deprived Lally of his right to
effective assistance of counsel.
Doc. No. 1 at 5-15; see also Doc. No. 27 at 31-71. Lally’s claims are fully briefed and ripe for
disposition.
II.
LEGAL STANDARDS
A.
General Habeas Review
Federal district courts may not grant a writ of habeas corpus unless they find that the state
court’s adjudication of the petitioner’s claims “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States[,] or (2) resulted in a decision that was based on an
6
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). In other words, state court decisions merit substantial
deference. As the Supreme Court repeatedly has emphasized, such deference results in a federal
habeas corpus standard that is “difficult to meet,” with the petitioner carrying a heavy burden of
proof. Harrington v. Richter, 562 U.S. 86, 102 (2011); accord Cullen v. Pinholster, 563 U.S.
170, 181 (2011); see Burt v. Titlow, 571 U.S. 12, 19-20 (2013) (emphasizing the “formidable
barrier” faced by federal habeas petitioner where claims already were adjudicated in state court,
and limiting relief to cases of “extreme malfunctions” by state criminal justice systems).
A state court ruling is “contrary to” clearly established Supreme Court precedent “if the
state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,”
or “if the state court confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state court is not required to cite, or even
have an awareness of, governing Supreme Court precedents, “so long as neither the reasoning
nor the result of [its] decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); cf.
Richter, 562 U.S. at 100 (stating Ҥ 2254(d) does not require a state court to give reasons before
its decision can be deemed to have been ‘adjudicated on the merits’” and entitled to deference).
For a habeas petitioner to prevail under this exacting standard, the state court judgment
must contradict clearly established holdings of the Supreme Court, not merely law articulated by
a lower federal court, and not dicta of any court. Williams, 529 U.S. at 404-05; accord Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam); Knowles v. Mirzayance, 556 U.S. 111, 122
(2009); see Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (emphasizing that “circuit precedent does
not constitute ‘clearly established Federal law’” for purposes of § 2254(d)(1)); cf. Marshall v.
7
Rodgers, 569 U.S. 58, 64 (2013) (warning against using circuit precedent to “refine or sharpen a
general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme]
Court has not announced”). Similarly, “habeas relief cannot be granted merely because a state
court errs in its application of state law.” Sanna v. Dipaolo, 265 F.3d 1, 11 (1st Cir. 2001).
Although “a state law or practice that betrays a fundamental principle of justice offends the Due
Process Clause” and, thus, “can have constitutional implications” such that a claim under § 2254
arises, “not every error of state law can be transmogrified by artful argumentation into a
constitutional violation.” Id. at 11-12.
A state court decision constitutes an “unreasonable application” of Supreme Court
precedent if it identifies the correct governing legal rule, but “unreasonably applies it to the facts
of the particular state prisoner’s case.” Williams, 529 U.S. at 407-08. When making the
“unreasonable application” inquiry, federal habeas courts must determine “whether the state
court’s application of clearly established federal law was objectively unreasonable.” Id. at 409.
An unreasonable application of the correct rule can include the unreasonable extension of that
rule to a new context where it should not apply, as well as an unreasonable failure to extend the
rule to a new context where it should apply. Id. at 407. It cannot, however, include a decision
by a state court not “to apply a specific legal rule that has not been squarely established by” the
Supreme Court. Mirzayance, 556 U.S. at 122. “The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541
U.S. 652, 664 (2004).
If a state court’s decision “was reasonable, it cannot be disturbed” under the standards of
habeas review as expressed in § 2254(d). Hardy v. Cross, 565 U.S. 65, 72 (2011) (per curiam);
accord Renico v. Lett, 559 U.S. 766, 779 (2010). A showing of clear error is not sufficient for a
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habeas petitioner to establish entitlement to relief. Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003); accord McCambridge v. Hall, 303 F.3d 24, 36-37 (1st Cir. 2002) (en banc). Rather,
relief is available only where a state court’s “determination was unreasonable – a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); accord Brown v. Ruane, 630
F.3d 62, 67 (1st Cir. 2011); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)
(emphasizing that a habeas court “may not overturn a state court decision . . . simply because the
federal court disagrees with [it]”); Richter, 562 U.S. at 103 (requiring a petitioner to “show that
the state court’s ruling . . . was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement”). To
succeed under § 2254, then, a petitioner must show that the state court’s rejection of his claim
was “so offensive to existing precedent, so devoid of record support, or so arbitrary, as to
indicate that it is outside the universe of plausible, credible options.” Sanna, 265 F.3d at 13
(quotation marks omitted); see Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (“A decision can
still be reasonable even if the reviewing court thinks it is wrong . . . .”).
A state court’s determination of the facts, in light of the evidence before it, “is not
unreasonable merely because [a] federal habeas court would have reached a different conclusion
in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds
reviewing the record might disagree” about a challenged factual determination, “on habeas
review that does not suffice to supersede the [state] court’s . . . determination.” Rice v. Collins,
546 U.S. 333, 341-42 (2006). If there is “evidence in the state-court record [that] can fairly be
read to support the [state] court’s factual determination,” relief under § 2254(d)(2) generally is
not warranted. Wood, 558 U.S. at 301-02.
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When applying these standards, federal courts ordinarily must presume that the state
court’s factual findings are correct, unless the petitioner has rebutted that presumption with clear
and convincing evidence. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340-41 (2003);
accord Teti, 507 F.3d at 57; see Donald, 135 S. Ct. at 1376 (noting “federal judges are required
to afford state courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong”); Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)
(discussing the “separate and exacting standard applicable to review of a state court’s factual
findings”). As the parties note, the relationship between the presumption described in §
2254(e)(1) and the standard for relief described in § 2254(d)(2) is uncertain, with decisions of the
Supreme Court and the First Circuit expressly declining to resolve the issue. See Doc. No. 27 at
34-35 (citing cases); see also Doc. No. 35 at 15 (calling “interplay between” the two subparts
“unclear”). This Court need not resolve the question, as Lally’s claims fail even under the more
lenient language of § 2254(d)(2).
B.
Ineffectiveness of Counsel
In order to establish that his counsel was constitutionally ineffective, a defendant must
satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which
provides the “clearly established federal law governing” such claims. Jewett v. Brady, 634 F.3d
67, 75 (1st Cir. 2011). “First, the defendant must show counsel’s performance was deficient,”
which requires showing “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Second, the
defendant must show the deficient performance prejudiced the defense.” Id. “Unless a
defendant makes both showings, it cannot be said that the conviction or . . . sentence resulted
from a breakdown in the adversary process that renders the result unreliable.” Id. As the
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Supreme Court repeatedly has emphasized, “[s]urmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010); accord Richter, 562 U.S. at 105. This is
especially so because habeas review of counsel ineffectiveness claims is subject to a “‘doubly
deferential’ standard of review that gives both the state court and the defense attorney the benefit
of the doubt.” Titlow, 134 S. Ct. at 13 (quoting Pinholster, 563 U.S. at 190).
Counsel’s performance is measured objectively, considering only what is “reasonable[]
under prevailing professional norms.” Strickland, 466 U.S. at 687-88; accord Premo v. Moore,
562 U.S. 115, 122 (2011). Federal courts must be “highly deferential” and “indulge a strong
presumption” that counsel’s challenged actions might be considered sound strategy under the
circumstances. Strickland, 466 U.S. at 689; accord Mirzayance, 556 U.S. at 124. “It is ‘[r]are’
that constitutionally competent representation will require ‘any one technique or approach.’”
Pinholster, 563 U.S. at 195 (quoting Richter, 562 U.S. at 106). A strategic choice “made after
thorough investigation of law and facts relevant to plausible options [is] virtually
unchallengeable.” Strickland, 466 U.S. at 690.
To establish prejudice, a defendant must demonstrate “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694; accord Mirzayance, 556 U.S. at 127. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. To warrant
relief, a defendant must show that counsel’s errors were “so serious as to deprive [him] of . . . a
trial whose result is reliable.” Id. at 687.
A “doubly deferential standard . . . applies to a state prisoner’s claims in a federal habeas
petition that a state court has unreasonably applied the Strickland principles.” Jewett, 634 F.3d
11
at 75. In that context, the “pivotal question” is not whether the petitioner has met the Strickland
standard in the first instance, but whether “fairminded jurists would all agree that the [state
court’s] decision [that he has not met it] was unreasonable.” Id. (quotation marks omitted);
accord Richter, 562 U.S. at 101. And, because “the Strickland standard is a very general
one, . . . state courts have considerable leeway in applying it to individual cases.” Jewett, 634
F.3d at 75.
III.
DISCUSSION
The Court notes at the outset that the SJC considered, discussed, and rejected each of
Lally’s claims on its merits. It analyzed and rejected Lally’s assertions of counsel
ineffectiveness using a standard of review less rigorous than Strickland or its state counterpart,
Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974). See Lally, 46 N.E.3d at 48 (noting
“the asserted errors [were not] preserved at trial” and, thus, “giv[ing] the defendant the benefit of
a more lenient standard”). In particular, the SJC “focuse[d] more narrowly on whether there was
error and, if so, whether any such error was likely to have influenced the jury’s conclusion.” Id.
(quotation marks omitted). That the SJC concluded Lally had not satisfied even this more
forgiving standard only amplifies the uphill nature of the battle he faces in this Court, given the
deferential federal habeas standard summarized above. None of Lally’s claims entitle him to
relief under these stringent standards.
A.
DNA Evidence
Lally first claims three categories of error arose from the introduction of DNA evidence
at his trial. Specifically, he faults trial counsel for failing to challenge admission of the evidence
without appropriate explanatory statistics, he asserts the prosecutor prejudicially
mischaracterized the DNA evidence in her opening and closing remarks to the jury (and
12
criticizes trial counsel for failing to object to such remarks), and he argues trial counsel
inadequately challenged the DNA evidence via cross-examination and then mischaracterized it in
his own closing argument. Doc. No. 27 at 38-57.
1. Admission of DNA Evidence
According to Lally, the SJC’s conclusion that admission of the DNA evidence did not
infect his trial with prejudicial constitutional error was an unreasonable application of Strickland,
and “ignored material factual evidence in the record.” Id. at 43. Lally characterizes the DNA
evidence as “one of the few pieces of physical evidence buttressing Weir’s account,” and argues
that the prejudice flowing from any error in its admission would be “palpable.” Id. at 48.
The SJC agreed with Lally that “it was error” under Massachusetts law “to admit the
nonexclusion results from the PCR evidence without statistical information providing context for
th[ose] result[s].” Lally, 46 N.E.3d at 51. Regardless whether a defense challenge to admission
of the evidence would have led to exclusion of the results or admission accompanied by statistics
showing the results were not especially powerful, the SJC concluded that trial “counsel’s failure
to challenge the PCR results satisfied the first prong of the test for ineffective counsel.” Id. at
51-52 & n.10. According to the SJC, no such error arose from admission of the Y-STR results,
as they were accompanied by “count evidence” which “provided the required context” and “was
[not] likely to mislead jurors,” even if a different statistic would have been more reliable or more
favorable to Lally. Id. at 52-53.
As to whether the erroneous admission of the PCR evidence was prejudicial to Lally,
however, the SJC “easily” concluded it was not. Id. at 54. The SJC discerned only “limited
value” in the “possibility that the DNA evidence could have come from an unknown third party,”
where the real dispute between the prosecution and defense at trial was whether Weir or Lally
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had killed the victim. Id. at 54-55. Furthermore, the SJC assessed that there was “strong
corroborative evidence” against Lally—specifically, the fresh scratch marks on his face, his
differing explanations for those marks, his statements to others before the crime in which he
described killing the victim in a manner closely resembling the method actually used, and his
description of the murder afterward as a “perfect crime”—which diminished the importance of
the DNA evidence and its likely effect on the jury’s verdict. Id. at 55.
The SJC’s analysis was neither an unreasonable application of Strickland, nor did it rest
on an unreasonable determination of the facts. There is no basis in the record for secondguessing the SJC’s reasonable determination that evidence of Y-STR testing that had not
exculpated Lally was properly admitted. Unlike the testimony about PCR testing, the
Commonwealth’s expert described statistics providing some meaningful context for the Y-STR
results, even if those statistics were not the sort preferred by Lally’s present counsel. Although
the record does contain evidence that some scientific literature at the time of Lally’s trial
suggested another sort of statistic would provide more powerful or reliable context for Y-STR
results, it also contains expert testimony that the statistics provided here were endorsed by other
scientific literature during the relevant time period. It was reasonable for the SJC to conclude, in
applying state case law setting the parameters applicable to DNA evidence, that the count
method adequately established the Y-STR results were not the sort of one-in-a-million match
that jurors might otherwise infer when hearing about DNA testing, especially where the
Commonwealth’s expert candidly described the limitations of the testing.
Additionally, the SJC reasonably credited and relied upon evidence reflecting that trial
counsel sought and considered the guidance of a defense expert regarding DNA evidence, that
the expert did not advise counsel of potential challenges to the Y-STR statistics, and that
14
counsel’s strategy was reasonable in light of his understanding of the expert’s assessment. See
id. at 54 n.17 (describing trial counsel’s correspondence with the defense expert when preparing
for trial). No clearly established federal law supports a finding that trial counsel was
constitutionally deficient for relying on such expert guidance and choosing a different strategy in
these circumstances.
The SJC’s prejudice analysis was likewise reasonable. That the Y-STR results were
admitted without error mitigates any prejudice flowing from improper admission of the PCR
results (which similarly excluded Weir, but not Lally, with respect to DNA collected from the
same part of the victim’s body). At bottom, this was not a DNA case. The jury was presented
with a choice between two narratives of the crime. In one, Lally was the killer; in the other, it
was Weir. The Commonwealth offered substantial evidence besides the DNA expert’s testimony
to corroborate Weir’s account implicating Lally. A number of witnesses testified about
inculpatory comments they heard Lally make before and after the crime; no one besides Lally
offered comparable testimony implicating Weir. Only Lally was observed with fresh scratches
on his face immediately following the killing, then offered varying explanations as to the source
of the scratches (none of which were consistent with his trial testimony).
In this context, Lally has not established that admission of the PCR results amounted to
an error so serious that all fairminded jurists would agree he was deprived of a trial whose result
was reliable. Given the “doubly deferential” lens of federal habeas review applicable to
Strickland claims, Lally is not entitled to relief on this basis.
2. Comments by the Prosecutor
Lally similarly argues that the SJC unreasonably determined the facts, and unreasonably
applied Strickland and Supreme Court precedent concerning prosecutorial misconduct, when it
15
ruled that the prosecutor’s mischaracterizations of the DNA evidence were not prejudicial. Doc.
No. 27 at 50-52. According to Lally, the prosecutor “greatly exaggerated the significance” of the
DNA evidence and “deliberately misled the jurors” with respect to that evidence, such that Lally
was denied due process. Id.
Here, again, the SJC agreed that the prosecutor had misstated the evidence, improperly
“insinuated to the jury” that the DNA “nonexclusion” results were as significant as a “match,”
and thereby compounded the erroneous admission of PCR results in the first instance. Lally, 46
N.E.3d at 53, 55. This error, however, did not impact the SJC’s assessment of prejudice
“sufficient[ly] to raise it to a level that would entitle [Lally] to relief.” Id. at 55. In support, the
SJC noted that trial counsel had not objected to the relevant statements, found that “the judge’s
instructions mitigated the errors,” and viewed the comments as unlikely to have impacted the
jury’s verdict where the “case did not hinge on the DNA evidence.” Id. (quotations marks
omitted).
The SJC’s conclusion was both legally and factually reasonable. Lally has not
established that the SJC misapplied the general principles established by the Supreme Court to
mark the line between permissible argument and prejudicial prosecutorial misconduct, e.g.,
Darden v. Wainwright, 477 U.S. 168 (1986); Donnelly v. DeChristoforo, 416 U.S. 637 (1974);
Berger v. United States, 295 U.S. 78 (1935), nor has he shown that the SJC unreasonably
determined the facts relevant to such an assessment. The trial court clearly and appropriately
instructed the jury that lawyers’ statements were not evidence, and that jurors should disregard
statements by counsel that differed from their recollection of the evidence. S.A. Vol. V, Tab 11
at 60-61. The record reflects that the relevant comments by the prosecutor were brief and
isolated in the context of her statements to the jury, just as the DNA evidence itself occupied
16
only a fleeting portion of the testimony offered at trial. See id. at 50-52 (reflecting the relevant
comments occupied two pages in a closing argument spanning more than twenty-three transcript
pages); S.A. Vol. III, Tab 4 at 60-61 (reflecting the relevant comments occupied one paragraph
in an opening statement spanning more than nineteen transcript pages); see also S.A. Vol. IV,
Tab 7 at 136-81 (reflecting the DNA expert’s testimony occupied just over forty-five pages in a
trial transcript containing approximately a thousand pages).
And, again, this case did not turn on DNA evidence identifying a perpetrator. Where
jurors essentially were tasked with deciding whether to credit Weir or Lally as to which of them
watched as the other killed the victim, and where the Commonwealth presented and argued
ample evidence besides the DNA results corroborating Weir’s account, Lally has not established
that the prosecutor’s misstatements (or trial counsel’s failure to object thereto) infected his trial
with prejudice meriting habeas relief.
3. Defense Approach to DNA Evidence at Trial
Lally further argues that his trial counsel was ineffective both in his cross-examination of
the Commonwealth’s DNA expert and for misstating the DNA evidence in his own closing
argument. Doc. No. 27 at 52-57. Per Lally, the SJC’s rejection of these assertions was based on
an unreasonable determination of the facts and an unreasonable application of Strickland. Id.
The SJC found no error in what it determined was trial counsel’s “tactical decision to
highlight mistakes in investigation,” or in his reliance on information received from his own
expert consultant. Lally, 46 N.E.3d at 53-54. Noting that probing the DNA expert as Lally now
proposes carried with it a risk of emphasizing the fact that Weir was excluded as a contributor to
all relevant DNA samples, the SJC concluded that it was not manifestly unreasonable to
approach the evidence as trial counsel did. Id. The SJC did not separately discuss Lally’s
17
assertion that trial counsel also was ineffective for the manner in which he referenced the DNA
testimony during his closing argument, a “cursory” assertion which the trial court rejected in a
footnote for the same reasons it (and the SJC) had found no prejudicial misconduct by the
prosecutor. Doc. No. 1-1 at 20 n.17; see S.A. at 941-42 (containing a single paragraph
challenging trial counsel’s closing argument).
The SJC’s determination sensibly applied Strickland and rested on a reasonable
determination of the facts. This is so for the same reasons already discussed as to Lally’s other
DNA-related challenges. The DNA evidence was not a key element, let alone the lynchpin, of
the case against Lally. A reasonable strategic call could have been made to minimize challenges
to it in order to shift focus away from the evidence as a general matter (especially given the fact
that it highlighted a distinction between Weir and Lally that did not favor Lally, no matter how
weak the probabilities associated with the nonexclusion results were, since Weir was excluded as
a source of all samples), briefly argue that the evidence did not establish a “match” in the sense
normally assumed when DNA testing is used, and then emphasize other aspects of the case that
more strongly favored Lally’s defense (such as Weir’s credibility problems and problems with
the police investigation).3
Even if this Court were to find fault with the SJC’s determination that trial counsel’s
cross-examination of the DNA expert was not manifestly unreasonable, Lally’s Strickland claim
3
Indeed, this is essentially what trial counsel did in closing. He referenced the contamination of
one sample among alleged investigatory missteps, only briefly (and correctly) noting that
although the DNA expert had used the word “match” during his testimony, his report did not
state that any of his testing revealed a “match” to Lally. S.A. Vol. V, Tab 11 at 13-18; see S.A.
Vol. IV, Tab 7 at 168 (reflecting expert testimony on direct examination that Y-STR testing
“came back to match Thomas Lally at all of those regions we tested” (emphasis added)). Having
carefully reviewed the relevant testimony and trial counsel’s reference to it in closing, the Court
finds no basis to conclude the argument mistakenly or misleadingly addressed the DNA
testimony, let alone that it supports a colorable claim of counsel ineffectiveness.
18
still would fail because he has not established prejudice for reasons the Court already has
summarized. The expert, on direct examination (despite having used the word “match”), already
had explained the limitations on the Y-STR results and how they differ from (and are less
powerful than) other types of DNA testing. S.A. Vol. IV, Tab 7 at 170-72. Thus, the jury was
not misled into thinking that the evidence established a conclusive match to Lally. Furthermore,
with other evidence corroborating Weir’s trial testimony implicating Lally, and where the
defense was not that some unknown third party had committed the murder, the Court finds Lally
has not established a reasonable probability that a different approach to the DNA evidence (or
even the complete exclusion of it) would have yielded a different outcome.
Accordingly, Lally’s DNA-related challenges—though adeptly briefed—do not entitle
him to habeas relief.
B.
Weir’s Prior Statements
Next, Lally faults trial counsel for choosing to introduce lengthy audio tapes of Weir’s
conversation with Morel, rather than simply cross-examining Weir on specific points using
transcripts of the conversation or playing only selected excerpts of the tapes. Doc. No. 27 at 5760. According to Lally, playing the tapes “was shocking” and unnecessary, doing more harm
than good by confirming salient portions of Weir’s trial testimony (thereby bolstering Weir’s
credibility) and introducing otherwise inadmissible information detrimental to Lally. Id.
The SJC assessed the audio tapes as having contained information both helpful and
harmful to Lally. For example, “the tapes impeached Weir’s credibility through specific
examples of Weir’s prior misconduct that may not otherwise have been admitted,” including
prior thefts and burglaries, and also “revealed the inflection in Weir’s voice when talking about
the murder and . . . boasting about his ability to lie.” Lally, 46 N.E.3d at 56-57 & n.20. On the
19
other hand, the tapes contained prior consistent statements made by Weir to a friend that
bolstered his credibility, as well a description of Lally suggesting that they murder a “bum.”4 Id.
at 57. In the end, the SJC credited trial counsel’s testimony that “he made a tactical decision to
introduce the entirety of the tapes” because “impeaching Weir’s version of events was
paramount to [Lally’s] case,” and concluded counsel’s “strategic choice . . . was not manifestly
unreasonable.” Id. at 56-57.
In so ruling, the SJC neither misapplied Strickland nor unreasonably determined pertinent
facts. Even if trial counsel now believes that, “in hindsight, it may have been helpful to redact
portions of the tape,” the fact remains that he considered the available options at the time of trial
and elected to play the tapes—in spite of the prior consistent statements and the unfavorable
statements about Lally—“guided by” his belief that “nothing [was] more important” than “the
need to impeach Weir.” Id. at 56 n.19. Strategic decisions of this nature are “virtually
unchallengeable.” Strickland, 466 U.S. at 690. Besides providing jurors with a chance to hear
Weir candidly using his own words to describe his prior criminal conduct (some of which
involved dishonesty), his claimed proficiency at lying, and his admitted role as at least an
accessory to the killing, the tapes also revealed to jurors the tone with which Weir conveyed this
information to a friend: proudly and with bravado, which apparently differed markedly from the
tone of his trial testimony and may have given jurors reason to doubt the Commonwealth’s
depiction of him as a frightened teenager dominated by the older, physically larger Lally.
4
Although this fact, at first glance, appears especially damaging to Lally, the SJC explained that
the taped conversation further revealed that Weir (not Lally) was the one to act on the suggestion
by assaulting a man on the street. Lally, 46 N.E.3d at 57. Not only is that admission damaging
to Weir, as the SJC noted, it also may have been interpreted as supporting Lally’s trial testimony
insofar as it provided another instance in which Lally’s callous comments about committing
violent crimes resulted in actual violent conduct by Weir (which is essentially what Lally said
happened here).
20
In this context, Lally has not established that trial counsel’s calculated decision to
impeach Weir using the audio tapes rose to the level of constitutionally deficient performance.
C.
Unredacted Plea Agreement
Lally’s third claim centers on the jury’s receipt of a copy of Weir’s guilty plea agreement
containing three references to Weir’s obligation to testify truthfully, rather than a copy redacted
to comply with an earlier ruling by the trial court that, pursuant to state law, the jury should see
only one such reference. Doc. No. 27 at 60-64. Per Lally, this resulted in a violation of his right
to a jury trial and demonstrates his trial counsel’s ineffectiveness. Id.
Once more, though the SJC agreed that the use of an unredacted copy of Weir’s
agreement was error (or at least assumed as much, because the Commonwealth did not dispute
that the failure to redact was an error), it found no prejudice. Lally, 46 N.E.3d at 57-58. The
SJC characterized the two unredacted references to “truthfulness” as “cumulative of the one
permissible reference,” and highlighted the trial court’s “clear and forceful instructions to the
jury that it was solely for [them] to determine credibility” and assess the truthfulness of “Mr.
Weir’s testimony.” Id. at 58 (quotation marks omitted).
Here, again, the SJC’s determination was reasonable in all respects. Insofar as Lally
claims a violation of his right to a jury trial, he has pointed only to Massachusetts common law
as support for his argument that one reference to truthfulness was permissible, but two other
identical references were not. Doc. No. 27 at 63. He has identified no clearly established federal
law imposing a similar requirement. Id. Thus, for purposes of this Court’s habeas review, Lally
has cited no authority permitting this Court to second-guess the SJC’s determination that the
unredacted references were cumulative (rather than extraneous).
21
Moreover, other factors underscore the reasonableness of the SJC’s prejudice analysis.
Besides the trial court’s instructions explicitly emphasizing the jury’s duty to assess Weir’s
truthfulness, the record reflects that the Commonwealth neither highlighted the “truthfulness”
requirement of the plea agreement nor argued that it provided a basis for jurors to credit Weir’s
testimony. In these circumstances, Lally has not shown that the unredacted plea agreement
infected his trial with improper vouching, extraneous evidence, or any other form of prejudicial
constitutional error, nor has he established that counsel’s failure to make the redactions ordered
previously by the trial court resulted in prejudice sufficient to satisfy Strickland’s second prong.
D.
Other Bad Acts
With his fourth claim, Lally accuses the Commonwealth of improperly attacking his
character by offering evidence that he had once used profanity when speaking with the victim’s
elderly sister-in-law, and that he (along with Weir and Anthony Calabro) had “trashed” the
victim’s apartment after her death. Doc. No. 27 at 64-66. He also criticizes his trial counsel for
failing to object to such evidence. Id.
Having “discern[ed] no error in admission of evidence of the condition of the victim’s
home and the handling of her personal possessions,” and “assum[ing], without deciding, that the
admission of [Lally’s] statement to the victim’s sister-in-law was error,” the SJC rejected Lally’s
constitutional challenges arising from this evidence after concluding that it “could not have had
appreciable significance to the jury’s verdict in light of the [other] evidence” offered at trial.
Lally, 46 N.E.3d at 58-59 (quotation marks omitted). The SJC further noted that testimony about
damage to the victim’s home after her death equally implicated Weir (the only other person
identified to jurors by any witness as the possible killer), and found that a “singular comment”
22
directed at the victim’s sister-in-law added no meaningful prejudice where other witnesses
described offensive and obscene comments Lally made about the victim. Id. at 59.
The SJC’s rejection of this claim was based on a reasonable application of Strickland and
clearly established federal law regarding prosecutorial misconduct. Evidence about what Lally
and his co-defendants did to the victim’s apartment and belongings after her death was arguably
relevant to the Commonwealth’s theory of motive: to gain possession and control of the victim’s
home, so that the young men could move away from their parents to reside in an apartment they
controlled without the oversight of an elderly woman they apparently found bothersome. See
Lally, 46 N.E.3d at 59 (citing a state court decision applying similar reasoning). And, although
more than one witness testified about this post-crime conduct, the Court’s reading of the trial
transcript does not support a finding that such evidence was “pervasive” or constituted “piling
on,” as Lally suggests. Doc. No. 27 at 66. As such, the Court cannot conclude that an objection
by trial counsel would have resulted in the exclusion of some or all of this testimony; thus, his
failure to object was not deficient under Strickland.
Even if the Court were to find that trial counsel should have objected to both categories
of “bad acts” evidence, the SJC reasonably determined that it was unlikely such evidence
meaningfully impacted the jury’s verdict, given the nature and scope of the other testimony
jurors heard. Specifically, the Commonwealth offered evidence that Lally committed “the brutal
killing of an eighty-four year old woman in her home,” after calling the victim profane names
and joking about killing her in various ways during social conversations with multiple friends,
and then after the killing undertook “methodical actions to make her death seem accidental.”
Lally, 46 N.E.3d at 59. In sum, the bad-acts evidence at issue provides no basis for habeas relief.
23
E.
Advising Lally to Testify
Lally’s next challenge stems from counsel’s advice underlying Lally’s decision to testify
in his own defense. Doc. No. 27 at 66-68. Lally characterizes his testimony as unnecessary,
urges that the evidence against him “was not overwhelming,” and complains that his testimony
“opened the door to [his] prior inconsistent statements” to police being offered by the
Commonwealth in rebuttal. Id.
Viewing this claim as “undermine[d]” by evidence that Lally made an “informed and
voluntary decision to testify” after “many conversations” with trial counsel, the SJC found trial
counsel’s advice to Lally was not manifestly unreasonable “where compelling evidence
corroborated Weir’s version” of events. Lally, 46 N.E.3d at 59.
In making this assessment, the SJC reasonably applied Strickland. Lally contends that
putting him on the stand was not “required” or “advisable,” Doc. No. 27 at 67-68, but those are
not the constitutional standards for determining whether counsel provided effective
representation. The record reflects that, sincerely believing Lally was not the killer, sensibly
perceiving that the Commonwealth’s evidence against Lally was substantial, and reasonably
focused on presenting jurors with an alternative narrative to Weir’s testimony, trial counsel made
a strategic decision to advise Lally to testify despite recognizing the Commonwealth’s ability to
respond by introducing his post-arrest statement.5 The record also reflects that Lally’s decision
5
In addition to being non-binding decisions of lower federal or state courts (and, thus, not clearly
established federal law under § 2254), the cases Lally discusses in his brief are plainly
distinguishable from what happened here. Those cases involved trial counsel asking certain
discrete and avoidable questions of the defendant which opened the door to specific areas of
cross-examination or impeachment by the prosecution, not whether trial counsel erred in
permitting the defendant to testify at all. E.g., White v. Thaler, 610 F.3d 890, 899 (5th Cir.
2010) (finding counsel’s performance deficient based on testimony he elicited about the
defendant’s post-arrest silence, which invited the prosecution to explore and comment on this
otherwise out-of-bounds subject). Lally, on the other hand, does not identify specific areas of
24
to testify was made deliberately, after consultation with counsel. The fact that another attorney
might have given different advice, or that another strategy might have fared better in retrospect,
does not transform a considered decision by trial counsel leading to a voluntary choice by the
defendant into error of constitutional proportions.
F.
Surrebuttal
Lally’s final standalone claim of counsel ineffectiveness stems from trial counsel’s
decision not to present surrebuttal testimony by two witnesses who heard Lally state, sometime
after the murder, that Weir had killed the victim.6 Doc. No. 27 at 68-69. Lally argues this
testimony should have been pursued and admitted as a prior consistent statement corroborating
Lally’s trial testimony to counteract the prior inconsistent statements elicited by the
Commonwealth on rebuttal. Id.
The SJC summarized trial counsel’s post-conviction testimony that he had decided not to
call the witnesses at issue because, “based on their trial testimony,” he thought they “may be
hostile to” Lally, although he “conceded” his decision “was not well thought out.” Lally, 46
N.E.3d at 60. The SJC agreed with the trial court’s finding that counsel’s election to forego
surrebuttal was tactical, and “was not manifestly unreasonable.” Id.
Notwithstanding counsel’s after-the-fact doubts about his chosen approach, Lally has not
established that the Constitution required counsel to present the relevant witnesses, let alone that
inquiry as having been unreasonable; rather, the entirety of his testimony implicating Weir as the
murderer is what opened the door to impeachment with his fundamentally inconsistent postarrest statement to police.
6
Both of these witnesses testified during the Commonwealth’s case-in-chief. One was subject to
voir dire on this subject, outside the jury’s presence, in connection with trial counsel’s desire to
elicit the relevant testimony on the theory that it provided a motive for Weir to implicate Lally.
The trial court ruled Lally’s “self-serving statements” inadmissible at that time and on that
theory, concluding Lally had not established Weir knew about the statements. Lally, 46 N.E.3d
at 59 & n.24; S.A. Vol. IV, Tab 5 at 90-101.
25
the SJC’s rejection of this claim was beyond the universe of plausible, credible options. Sanna,
265 F.3d at 13. The selection of witnesses is a quintessentially strategic call reserved for defense
counsel, who is uniquely steeped in the particulars of the case and the myriad competing
considerations impacting such a choice. As such, a federal habeas court must afford a strong
presumption of reasonableness to such a decision. Strickland, 466 U.S. at 689. Lally has not
come close to overcoming that presumption here.
G.
Cumulative Ineffectiveness
Finally, Lally argues that “the cumulative devastating effect of counsel’s failings” entitles
him to habeas relief. Doc. No. 27 at 69-71. In rejecting Lally’s ultimate challenge, the SJC
reasoned:
Even if we were to agree that all of the challenged evidence should not have been
admitted, the Commonwealth presented other substantial evidence corroborating
Weir’s testimony: the defendant’s presence at the victim’s home the night of the
murder; the scratches on his face and varying explanations for the cause; his
frequent precrime references to killing the victim, sometimes stating the exact
method that occurred; and his postcrime statement that it was the “perfect crime.”
Lally, 46 N.E.3d at 60.
The record simply does not support a finding that Lally’s “trial was beset by serious
errors from start to finish.” Doc. No. 27 at 70. As explained above, the SJC reasonably found or
assumed only four errors in Lally’s trial: the admission of PCR test results without
accompanying statistics, mischaracterizations of DNA evidence by the prosecutor in her opening
statement and closing argument, the jury’s exposure to an unredacted copy of Weir’s plea
agreement, and testimony about a profane comment Lally made to the victim’s sister-in-law.
None of these errors resulted in the admission of evidence that formed a centerpiece of the case
against Lally. Each concerned a comparatively brief moment in a lengthy trial and was either
cumulative of other properly admitted evidence or mitigated by the trial court’s clear instructions
26
to the jury. For the reasons explained above, none of the errors individually resulted in anything
close to the level of prejudice required to trigger entitlement to habeas relief, and the SJC’s
conclusion that no such prejudice arose from their cumulative effect was plainly reasonable in
the circumstances of this case.
IV.
CONCLUSION
Considered through the twenty-twenty lens of hindsight, trial counsel’s advocacy on
Lally’s behalf may have been imperfect. Perfection, however, is not what the Constitution
guarantees. Yarborough v. Gentry, 540 U.S. 1, 6, 11 (2003). Because his claims fail on their
merits, Lally’s habeas petition is DENIED.7
SO ORDERED.
/s/ Leo T. Sorokin
United States District Judge
7
As “reasonable jurists” could not “debate whether . . . the petition should have been resolved in
a different manner,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), no certificate of appealability
shall issue. As explained above, the state court evaluated Lally’s litany of complaints about trial
counsel, as well as the related claims of prosecutorial misconduct and/or trial court error, in a
manner that was both reasonable and consistent with federal law, particularly where the case
against Lally did not turn on DNA evidence and counsel’s strategic decisions fell squarely within
the bounds of prevailing professional norms.
27
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