Andrade v. Medeiros
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 17 Motion for Judgment on the Pleadings (Woodlock, Douglas)
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SUPERINTENDENT SEAN MEDEIROS, )
CIVIL ACTION NO.
MEMORANDUM AND ORDER
September 9, 2021
This federal habeas corpus petition under 28 U.S.C.
§ 2254 arises from the June 2015 state court conviction of
Herico Andrade for first degree murder.
During Mr. Andrade’s
trial, the prosecutor successfully introduced grand jury
testimony as prior inconsistent statements for several witnesses
who the judge determined to be feigning memory loss.
prosecutor used leading questions to present and inquire about
the grand jury testimony, but the trial court rejected Mr.
Andrade’s argument that this questioning technique was improper.
After the Massachusetts Supreme Judicial Court affirmed his
conviction, Mr. Andrade sought relief through a writ of habeas
corpus in this Court.
Mr. Andrade contends that by allowing the grand jury
testimony to be considered as substantive evidence, the trial
court created an unforeseeable exception to a state common-law
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 2 of 24
rule and retroactively applied that newly fashioned exception to
his case, in violation of his due process rights under the Fifth
Amendment and his Confrontation Clause rights under the Sixth
Amendment, as made applicable to state courts by the Fourteenth
Amendment of the United States Constitution.
custodian, the Superintendent of the Massachusetts Correctional
Institution at Norfolk, has moved for judgment on the pleadings,
arguing that the underlying claims have not been exhausted in
the state courts, have been procedurally defaulted, and in any
event fail on the merits.
I conclude that Mr. Andrade has not
met the demanding burden required of state habeas corpus
petitions and consequently will grant Respondent’s motion.
In a federal habeas corpus proceeding challenging a state
conviction, state court determinations of fact are presumed to
be correct, and the petitioner has the burden of rebutting that
presumption by clear and convincing evidence.
See 28 U.S.C. §
Mr. Andrade disputes what he contends were three
determinations of fact adopted by the SJC.
I note those
instances in footnotes below and find them procedurally
defaulted and thus immaterial to the substantive merits of
See infra notes 2, 3 & 4.
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 3 of 24
On April 4, 2011, a vehicle carrying Mr. Andrade and others
stopped in front of a house in Brockton, where several people
One of the men standing outside approached the
car and argued with Mr. Andrade.
Mr. Andrade said, “I’ll go and
come back,” and the vehicle pulled away.
minutes later, shots were fired in the same location.
victim, Jose Lobo, was found lying on the front porch with a
gunshot wound to his head.
He was pronounced dead at the
Surveillance video showed two individuals approaching the
area on foot and reaching for their waistbands around the time
of the shooting; the video then showed the individuals fleeing
the scene moments later.
A witness, Antonio Silva, saw two
individuals running away from the scene, one of whom he
identified as Mr. Andrade.
Mr. Silva also noted that Mr.
Andrade carried a revolver while running away.
A baseball hat
containing Mr. Andrade’s DNA was found on the street in front of
the porch where Mr. Lobo was killed.
Mr. Andrade was questioned by Brockton police a few days
after the murder.
During that interview, he admitted to being a
passenger in the vehicle that stopped near the group on the
night of the shooting, but he denied being present at the time
of the shooting.
Approximately one and a half weeks later, Mr.
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Andrade left the United States.
He was indicted for murder and
arrested when he returned to the country, almost a year later.
At trial, four witnesses called by the Commonwealth claimed
that they could not remember testimony they had given to the
The judge found that three of the witnesses,
including Mr. Silva, were feigning memory loss.1
the judge allowed the Commonwealth to introduce grand jury
testimony by the three witnesses as admissible prior
inconsistent statements that could be considered substantively.
When reading the grand jury testimony into the record, the
prosecutor presented the relevant excerpts punctuated by live
questions to the witness about whether he or she recalled giving
that portion of the testimony.2
Mr. Andrade did not object to
this questioning technique while it was happening, but at the
As to the fourth witness, the Judge found that given certain
problems with the witness’s comprehension of the English
language at the time his grand jury testimony occurred, the
record of his grand jury testimony did not reliably reflect what
he heard and understood from the questions he was asked.
2 Mr. Andrade disputes this characterization of the prosecutor’s
questioning technique as an unreasonable determination of fact.
He argues that because the grand jury testimony was read along
with the leading questions, the grand jury testimony cannot be
separated from the questions. I do not reach the merits of this
claim because it has been procedurally defaulted. See infra
Section III.B. Consequently, I make no finding as to the
reasonableness of this factual determination by the SJC.
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close of evidence he moved for a required finding of not guilty.
He argued that under common law, the prosecutor’s leading
questions could not be considered as substantive evidence, and
therefore there was insufficient evidence to find him guilty.
The trial judge denied Mr. Andrade’s motion, finding that
the prosecutor’s method of questioning was “sufficient” to allow
the jury to consider the grand jury testimony substantively.
The judge instructed the jury that questions put to witnesses
were not separately evidence but that the grand jury testimony
actually given by each witness framed by those questions could
be considered for its substantive value.
SJC Appeal and Petition for Rehearing
On appeal to the SJC, Mr. Andrade argued that the trial
court judge erred in treating the grand jury testimony as
substantive evidence and instructing the jury to do the same,
citing for the first time Commonwealth v. Judge, 650 N.E.2d
1242, 1254 n.12 (Mass. 1995) (upholding jury instruction that
facts suggested in leading questions answered in the negative
are not evidence).
The SJC on December 21, 2018 held that
because Mr. Andrade did not object during the prosecutor’s
questioning, he failed to preserve his claim.3
Mr. Andrade argues that the SJC’s finding that he “waived his
right not to be convicted on suggestions in leading questions
that were incapable of producing evidence under existing law” is
an unreasonable determination of the fact. As discussed below
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Andrade, 113 N.E.3d 317, 320 & n. 2 (Mass. 2018).
As a result,
the SJC only reviewed Mr. Andrade’s claims for a substantial
likelihood of a miscarriage of justice.
The SJC concluded
that “although the method the Commonwealth used to introduce the
evidence was somewhat unusual, the testimony was properly
admitted for substantive purposes.
There was no error.”
see also id. at 322 (“prosecutor’s method was unconventional”).
After concluding that the requirements for establishing a
prior inconsistent statement had been met, the SJC noted that
“[i]t would have been apparent to the jurors at the time, as it
is apparent to us now, that the prosecutor was reading relevant
excerpts from grand jury testimony into the record, and
occasionally asking each witness whether he or she recalled the
Therefore, the SJC concluded the trial judge
did not err, and the grand jury testimony was properly admitted
as substantive evidence.
The SJC nevertheless cautioned about
what it perceived to be possible confusion caused by this
technique and recommended that parties read testimony directly
in Section III.B, I disagree because this determination
regarding waiver was essentially a determination of the legal
issue of procedural default.
4 Mr. Andrade argues that the SJC’s use of the word
“occasionally” here is an unreasonable determination of fact,
because the prosecutor asked such questions one hundred times.
I do not reach the merits of this claim because it also was
procedurally defaulted. Consequently, I make no finding as to
the reasonableness of this factual determination by the SJC.
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into the record in the future.
The SJC in its opinion also
rejected a Confrontation Clause claim raised by Mr. Andrade.
Id. at 321.
Mr. Andrade timely petitioned the SJC for rehearing,
arguing that by allowing the admission of the grand jury
testimony for substantive purposes, the trial court created an
exception to the common-law rule reflected in the Judge
footnote, 650 N.E.2d at 1254 n. 12, that leading questions are
In addition, he claimed that the prosecutor’s
method of questioning prevented defense counsel from conducting
an effective cross-examination of the witnesses.
The SJC denied
the petition for rehearing without issuing an additional
Habeas Corpus Petition
Mr. Andrade filed this petition for habeas corpus in this
Court under 28 U.S.C. § 2254 on April 14, 2020.
that by allowing the grand jury testimony to be considered as
substantive evidence, the trial court improperly altered
retroactively the common law rule recognized by the footnote in
Judge and that this was contrary to clearly established federal
See Rogers v. Tennessee, 532 U.S. 451, 462 (2001)
(concluding that retroactive application of alteration of common
law rule violates due process when “unexpected and indefensible
by reference to the law which had been expressed prior to the
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conduct in issue”); Bouie v. City of Columbia, 378 U.S. 347, 354
(1964) (holding that retroactive application of unforeseeable
judicial construction of criminal statute violates Due Process
He also claims that the prosecutor’s leading questions
about the grand jury testimony violated his Sixth Amendment
Confrontation Clause right to cross-examine the witnesses.
Respondent for his part moves for judgment on the
pleadings, arguing that Mr. Andrade has failed to exhaust his
improper retroactivity claim and that the SJC determined that
there was procedural default, which would bar review on the
merits in federal court as an adequate and independent state law
Most fundamentally, Respondent maintains that the
retroactivity claim fails on the merits because the SJC
reasonably applied relevant Supreme Court precedents.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs federal court review of habeas corpus
applications brought by petitioners in state custody.
Under that statute’s “peculiarly deferential
standards,” I may not grant an application for a writ of habeas
unless the adjudication of a claim on the merits in state court
The Parties characterize Petitioner’s retroactivity contention
as a Bouie claim, but as an alleged alteration of a common law
rule, it is more precisely characterized as a Rogers claim.
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(1) was contrary to or involved an unreasonable application of
clearly established federal law or (2) was based on an
unreasonable determination of facts.
Cronin v. Comm’r of Prob.,
783 F.3d 47, 50 (1st Cir. 2015); 28 U.S.C. § 2254(d).
standard presents a demanding burden for state petitioners for
federal habeas corpus relief.
See Cooper v. Bergeron, 778 F.3d
294, 299 (1st Cir. 2015).
On the first prong, clearly established federal law “refers
to the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court
Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 412 (2000)).
that the state court decision was contrary to or an unreasonable
application of federal law, a petitioner “must show that the
state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Richter, 562 U.S. 86, 103 (2011).
In evaluating the
reasonableness of a rule’s application, a court must “consider
the rule’s specificity.
The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
Id. at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
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On the second prong, state court determinations of fact are
presumed to be correct.
28 U.S.C. § 2254(e).
has the burden of rebutting that presumption by clear and
Respondent contends that Mr. Andrade has not exhausted his
improper retroactivity claim in the state courts and that the
SJC’s ruling that there was a procedural default bars federal
review of the claim because the decision rests on an independent
and adequate state ground.
Although I conclude that Mr. Andrade has exhausted his
state remedies for the retroactivity claim, I do not, except in
the alternative, need to reach the merits because the SJC ruled
adversely to him on an adequate and independent state procedural
In the interests of completeness, however, I address
the contentions in the alternative and also find without merit
Petitioner’s contention that the SJC’s determination regarding
the retroactivity claim and the SJC’s Confrontation Clause
holding are unreasonable applications of federal law.
The exhaustion doctrine requires a petitioner to pursue
unsuccessfully in the state courts all available remedies before
a federal habeas application can be entertained.
§ 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 515–20 (1982).
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doctrine reflects federalism and comity concerns that “it would
be unseemly in our dual system of government for a federal
district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional
Rose, 455 U.S. at 518 (quoting Darr v. Burford, 339
U.S. 200, 204 (1950)); Clements v. Maloney, 485 F.3d 158, 162
(1st Cir. 2007).
A petitioner will be found to have exhausted a federal
claim if it was presented “fairly and recognizably” to the state
Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014)
(quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)).
A fair and recognizable presentment occurs when the petitioner’s
state court filings would alert a reasonable state court judge
to the existence of a federal claim.
where the SJC has reached the merits of the case, but no federal
claim was fairly and recognizably presented, a federal claim
cannot be raised for the first time in a petition for rehearing.
Gunter v. Maloney, 291 F.3d 74, 81–82 (1st Cir. 2002).
Essentially, “the legal theory [articulated] in the state
and federal courts must be the same.”
Sanchez, 753 F.3d at 294
(alteration in original) (quoting Clements, 485 F.3d at 162).
But this does not mean that each case cited in the habeas
petition must actually have been cited in state court; “[a]s
long as the substance of the federal claim is squarely presented
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to the state tribunal, citation to controlling federal cases is
not a prerequisite for purposes of achieving exhaustion.”
Rashad v. Walsh, 300 F.3d 27, 41 n.10 (1st Cir. 2002) (finding
that petitioner’s failure to cite specific case did not preclude
exhaustion when petitioner’s application for further state
appellate review identified speedy trial claim).
A petitioner can fairly present the substance of the
federal claim through one of the following methods: “reliance on
a specific provision of the Constitution, substantive and
conspicuous presentation of a federal constitutional claim, onpoint citation to federal constitutional precedents,
identification of a particular right specifically guaranteed by
the Constitution, and assertion of a state-law claim that is
functionally identical to a federal constitutional claim.”
Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011).
In short, the First Circuit “rules about what constitutes
presenting a federal issue are fairly generous.”
Hall, 448 F.3d 45, 47 (1st Cir. 2006).
Mr. Andrade did not specifically cite either Rogers v.
Tennessee or Bouie v. City of Columbia until this habeas
Respondent contends that this means the claim is
But in his brief on appeal to the SJC, Mr. Andrade
argued that his right to due process under the Fourteenth
Amendment to the United States Constitution was violated by the
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jury’s consideration of the improperly admitted evidence.
Although Mr. Andrade did not formulate his argument to the SJC
in the same terms or with the precision he now uses — that is,
as an unforeseeable judicial interpretation of a state commonlaw rule — the repeated use of the term “due process,” his
general discussion of the Fourteenth Amendment, and his citation
to another federal case may be read as sufficient to put the SJC
on notice of a federal claim of improper retroactivity.
It is also true that Mr. Andrade did not articulate any
federal claims as such in his petition to the SJC for rehearing.
There, Mr. Andrade argued that the Judge exception “cannot
equitably be applied to the Petitioner.
There is no way that
trial counsel can be reasonably expected to have foreseen this
substantive change in controlling law.”
He did not in his
rehearing petition characterize this as a violation of federal
due process rights, nor did he cite to Rogers, Bouie, or any
other federal law.
Respondent contends that this omission in
the petition for rehearing means the claim was not properly
However, the federal claim had been recognizably
presented, if only dimly so, to the SJC in his original review
The petition for rehearing was a request for
discretionary review by the same court that had already decided
Because the SJC was notified of the federal claim in
connection with its original review, I find the improper
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retroactivity claim to have been exhausted.
I conclude that for
purposes of exhaustion, Mr. Andrade was not required to repeat
his federal claim previously made before the SJC in his petition
Adequate and Independent State Law Ground
The Respondent separately argues that I cannot reach the
merits of Mr. Andrade’s claims because there is an adequate and
independent state-law ground for the decision — the SJC’s
finding that Mr. Andrade procedurally defaulted his
retroactivity claim by failing to object in a timely fashion to
the prosecution’s use of the contested questioning technique to
admit substantive evidence at trial.
In general, “[f]ederal habeas review of a particular claim
is precluded in circumstances in which a state prisoner has
defaulted on that claim in state court by virtue of an
independent and adequate state procedural rule.”
Janosky v. St.
Amand, 594 F.3d 39, 44 (1st Cir. 2010); see Coleman v. Thompson,
501 U.S. 722, 729–32 (1991) (noting that federal courts cannot
review state court decisions that rest on an adequate and
independent state law ground, because the federal decision would
The First Circuit has held “with a regularity
bordering on the monotonous” that the Massachusetts
contemporaneous objection rule is an adequate and independent
state procedural ground that has been consistently applied.
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Janosky, 594 F.3d at 44.
Further, a state appellate court does
not waive the contemporaneous objection rule by engaging in a
discretionary review of the claim to determine whether a
miscarriage of justice has occurred.
Id.; Gunter, 291 F.3d at
That said, a federal court may still review a habeas claim
that has been procedurally defaulted if there is cause for and
prejudice from the default, or if failure to consider the claim
will result in a fundamental miscarriage of justice.
594 F.3d at 44, 46; Gunter, 291 F.3d at 78.
Cause for a procedural default is found when “the prisoner
can show that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural
Murray v. Carrier, 477 U.S. 478, 488 (1986); Lee v.
Corsini, 777 F.3d 46, 58–59 (1st Cir. 2015) (quoting Carrier,
477 U.S. at 488).
Causes justifying procedural default include
that the “legal basis for a claim was not reasonably available
Carrier, 477 U.S. at 488.
Prejudice from a
procedural default is determined by the petitioner showing “not
merely that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
Id. at 494 (quoting United States
v. Frady, 456 U.S. 152, 170 (1982)); see Janosky, 594 F.3d at
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The cause and prejudice requirement provides a “narrow
exception” for a fundamental miscarriage of justice, but this
applies only when the petitioner makes a showing of actual
Lee, 777 F.3d at 62 (quoting Burks v. Dubois, 55
F.3d 712, 717 (1st Cir. 1995)).
The SJC held that Mr. Andrade had procedurally defaulted
his claim concerning the prosecutor’s questioning by failing to
object until the close of evidence.
Andrade, 113 N.E.3d at 320
Having determined that the claim was procedurally
defaulted, the SJC then reviewed the claim to ensure there was
no “substantial likelihood of a miscarriage of justice.”
It found that there was no such likelihood.
“[t]he SJC’s ruling amounted to nothing more than a decision
that [petitioner] would not be absolved from his procedural
default under its miscarriage of justice review.”
F.3d at 79.
Because Massachusetts courts have consistently
applied the contemporaneous objection doctrine, Janosky, 594
F.3d at 44, this constitutes an adequate and independent state
procedural ground — one generally beyond habeas review by a
Exceptions to the adequate and independent state ground
limitation to federal habeas corpus review are not available
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Mr. Andrade to be sure argues that there was cause for the
His trial counsel, he says, could not
object in the moment without violating his ethical obligations
to Mr. Andrade, because pointing out the leading questions would
lead to corrective action by the prosecution to ensure the
proper introduction of the substantive evidence, thereby
undermining the defense’s case.
It is more than a strain to say
that Mr. Andrade’s counsel could not ethically have alerted the
prosecution to the error, assuming that he believed the grand
jury testimony was not already in the record substantively.
Treating contemporaneous objection to defective evidentiary
submissions capable of correction as an ethical lapse would
effectively gut contemporaneous objection rules, an approach no
court, least of all the Supreme Court of the United States has
even signaled a willingness to undertake.
I cannot conclude
that Mr. Andrade has identified a sufficient cause for the
Moreover, Mr. Andrade was not prejudiced by any default,
because grand jury testimony is, on a proper foundation,
admissible substantively as a prior inconsistent statement and
there was other corroborating evidence here.
N.E.3d at 321–22.
If Mr. Andrade had objected at the moment of
introduction, the prosecutor could easily have read the
testimony into the record in accordance with the SJC’S
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 18 of 24
suggestion without the interspersed leading questions to the
This, of course, is exactly what Mr. Andrade’s
counsel was seeking to avoid; he did not want the grand jury
testimony in the record as substantive evidence at all because
that would foreclose his argument that there was insufficient
But this improvident tactical gambit does not amount
to prejudice cognizable in judicial review either directly or
A potential avenue to distract attention from the
evidence was undertaken by not objecting in the hope no one
But by failing to object contemporaneously the
Petitioner risked the procedural default of the claim on further
That the defense was confronted with an unwelcome
tactical choice does not allow Mr. Andrade to make an end run
around rules of evidence.
Counsel cannot preserve an argument
of insufficient evidence by failing to object to the questions
when it was clear that the prosecution was attempting to
introduce admissible grand jury testimony as substantive
Andrade, 113 N.E.3d at 320 n.2, 322.
limited options simply reflect the interplay among the values
The SJC observed that “to avoid confusion when offering grand
jury testimony in evidence, we suggest that it be read directly
into the record either by one person reading the questions and a
colleague reading the answers, or by one person reading the
entire excerpt but making clear which portions are questions and
which are answers.” Commonwealth v. Andrade, 113 N.E.3d 317,
322 (Mass. 2018).
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 19 of 24
served by long-standing rules of evidence that allow substantive
admission of a prior inconsistent statement.7
Mr. Andrade’s citation to Salts v. Epps, 676 F.3d 468 (5th
Cir. 2012), does not convince me otherwise.
In Salts, the state
court’s finding of waiver of objection to joint representation
was considered to be an unreasonable determination of fact.
In the state case, the trial judge did not allow the
ineffective assistance claim because of a “recollection” that
the defendants had previously waived any objection; however, no
evidence supporting this “recollection” appeared in the record.
Id. at 475–76.
The respondent conceded that the state courts
erred on the waiver issue.
Here, Mr. Andrade does not
dispute that he did not object at the time; the record plainly
shows that he waited until the close of evidence to object.
only disagreement — the timeliness of the objection — is one of
There is no unreasonable determination of fact
because there are no facts in dispute; this is a question of
It is no doubt for this reason that the original Advisory
Committee Notes to Federal Rule of Evidence 611(c) concerning
leading questions, after finding “[a]n almost total
unwillingness to reverse for infractions” of the traditional
rule that “leading question[s] are as a general proposition
undesirable,” observe that “[t]he matter clearly falls within
the area of control by the judge over the mode and order of
interrogation and presentation and accordingly is phrased in
words of suggestion rather than command.” Fed. R. Evid. 611(c)
1972 advisory committee’s note.
The variety of considerations
are summarized in 28 Charles Alan Wright & Victor J. Gold, FEDERAL
PRACTICE AND PROCEDURE § 6168 (2d ed. 2012).
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 20 of 24
state law on which the SJC has — and has already provided — the
Mr. Andrade has not advanced any arguments of actual
innocence, so he cannot be excused from procedural default on
the basis of a fundamental miscarriage of justice.
Because there is no prejudice cognizable on review from the
default and no fundamental miscarriage of justice, I need not
review the merits of the underlying claim, which was disposed of
by the SJC on an adequate and independent state procedural
Due Process and Confrontation
Although I conclude I need not reach the merits of the
improper retroactivity argument in light of the SJC’s
determination of procedural default, I register in the
alternative my conclusion that the improper retroactivity claim
is substantively without merit as a due process claim.
essentially the same reasons, I conclude the SJC determination
regarding Mr. Andrade’s related Confrontation Clause claim did
not constitute an unreasonable application of clearly
established federal law.
I will discuss the Confrontation
Clause to outline my determination with regard to both
The Confrontation Clause of the Sixth Amendment guarantees
the right of a criminal defendant “to be confronted with the
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 21 of 24
witnesses against him.”
U.S. Const. amend. VI.
This means that
a defendant is entitled to cross-examine witnesses against him
who seek to offer “testimonial” evidence — including testimony
before a grand jury.
Crawford v. Washington, 541 U.S. 36, 68
However, “the Confrontation Clause guarantees only ‘an
opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever
extent, the defense might wish.’”
Kentucky v. Stincer, 482 U.S.
730, 739 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20
“Ordinarily a witness is regarded as ‘subject to
cross-examination’ when he is placed on the stand, under oath,
and responds willingly to questions.”
484 U.S. 554, 561 (1988).
United States v. Owens,
A witness’s assertion of memory loss
does not necessarily create a problem under the Confrontation
Clause, because the attorney can still cross-examine the witness
on the stand about the witness’s recollections.
Id. at 560–64;
see, e.g., Figueroa v. St. Amand, No. 09-10943-DJC, 2012 WL
2449906, at *2 (D. Mass. June 26, 2012) (holding that lack of
memory did not make witness unavailable for cross-examination
under Sixth Amendment).
Mr. Andrade claims that by using a leading question
approach to introduce the grand jury testimony, the prosecutor
effectively shielded the grand jury testimony from crossexamination, in violation of the Sixth Amendment’s Confrontation
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 22 of 24
The SJC rejected this argument, noting that “‘any
limitation on the effectiveness’ of a cross-examination of a
witness who has been found to have feigned memory loss
‘generally does not implicate the confrontation clause.’”
Andrade, 113 N.E.3d at 321 (quoting Commonwealth v. DePina, 73
N.E.3d 221, 231 (Mass. 2017)).
Mr. Andrade contends that the
opportunity for cross-examination was inadequate not because of
the feigned memory loss but instead due to the prosecutor’s
questioning technique, which under his strained reading of the
common law rule summarily stated in Judge8 could have led defense
counsel to believe that the grand jury testimony had not been
admitted as substantive evidence.
Defense counsel therefore
contends he could not cross-examine the witnesses about their
grand jury testimony without himself putting that testimony in
the record as substantive evidence.
Mr. Andrade cites to Smith v. Illinois, 390 U.S. 129, 131
(1968), to support his position that “procedures that shield key
Mr. Andrade places more weight on the Judge footnote than it
was meant to bear. The footnote is simply a reminder of the
unremarkable general proposition that “facts suggested in
leading questions which are answered in the negative are not
evidence.” Commonwealth v. Judge, 650 N.E.2d 1242, 1254 n.12
(Mass. 1995). The more fundamental issue of the technique for
presentation of grand jury testimony in this instance — whether
“unusual” or “unconventional” under state practice — involved
ratification of “suggested” facts. The technique merely
oriented the witness to his prior testimony under oath without
suggesting some substantive answer.
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 23 of 24
facts regarding ‘the credibility of a witness’ from crossexamination violate the Sixth Amendment.”
In that case, the
trial court sustained an objection to questions by defense
counsel as to a witness’s real name and address.
U.S. at 131.
The Supreme Court held this violated the
defendant’s rights under the Sixth Amendment because crossexamination was essentially meaningless without such a
The cross-examination at issue in
Mr. Andrade’s case is of a completely different nature.
Mr. Andrade’s counsel was not prohibited from crossexamining the witnesses; rather, he did so but decided carefully
to refrain from asking about the grand jury testimony so as not
himself to emphasize it as evidence.
Even without asking about
specifics of the grand jury testimony, defense counsel
nevertheless asked Mr. Silva, in particular, dozens of questions
about the night of the shooting.
Mr. Silva responded
substantively to some questions, though to most he simply
answered “I do not remember.”
Under AEDPA, I may only grant Mr. Andrade’s application for
habeas relief if the SJC’s adjudication of his Sixth Amendment
claim, or his Fourteenth Amendment Due Process claim, was
contrary to or an unreasonable application of clearly
established federal law.
There is no Supreme Court case law on
point for the issue of whether the use of embedded leading
Case 1:20-cv-10733-DPW Document 20 Filed 09/09/21 Page 24 of 24
questions to introduce prior grand jury testimony undermines a
defendant’s right to cross-examination when defense counsel does
not wish to admit the prior testimony substantively.
situation is neither a Confrontation Clause nor a due process
issue because the witness is available for cross-examination
about the underlying event by defendant’s counsel in a manner he
As a result, there is no clearly established federal
law to support Mr. Andrade’s argument that there was a violation
of his Fifth or Sixth Amendment rights respectively of Due
Process and Confrontation made applicable to the states by the
Fourteenth Amendment to the United States Constitution.
reasonably applied existing Supreme Court precedent.
For the reasons set forth more fully above, I GRANT
Respondent’s motion [Dkt. No. 17] for Judgment on the Pleadings
and direct the Clerk to enter judgment dismissing this petition.
/s/ Douglas P. Woodlock____
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
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