Akara v. Ryan

Filing 27

District Judge Timothy S. Hillman: ORDER entered. MEMORANDUM of DECISION AND ORDER. Petition for Writ of Habeas Corpus (Docket No. 1) is denied. The issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 is also denied.(Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
CHIMEZIE AKARA,
)
Petitioner,
)
)
v.
)
)
)
KELLY RYAN,
)
Respondent.
)
__________________________________________)

Civil Action No.
14-40070-TSH

MEMORANDUM OF DECISION AND ORDER
September 11, 2017
HILLMAN, D.J.
Background
Chimezie Akara (“Petitioner” or “Akara”) filed a Petition for a Writ of Habeas Corpus as
a person in state custody in accordance with 28 U.S.C. § 2254. Following a jury trial in
Massachusetts Superior Court, Akara was convicted on multiple charges, including murder in the
first degree on a theory of extreme atrocity or cruelty, three counts of assault with intent to
murder, assault with a dangerous weapon, two counts of assault and battery by means of a
dangerous weapon, possession of a firearm without a license, and possession of ammunition
without a firearm identification card. Akara was sentenced to life without parole and
consecutive sentences aggregating between 66 and 80 years. The conviction was affirmed by the
Massachusetts Supreme Judicial Court (“SJC”) on May 21, 2013. Akara now seeks habeas relief
on the following grounds:
Ground One: Petitioner’s conviction on a joint venture theory was not supported by
sufficient evidence and therefore violated Petitioner’s constitutional right to due process;

Ground Two: Denial of severance motions in the circumstances of this case violated the
Petitioner’s due process rights; and
Ground Three: The closing arguments of the prosecutor and of co-defendant’s counsel
were improper and violated the Petitioner’s due process rights.
Akara has exhausted state-court remedies with respect to all of the grounds for relief asserted in
his Petition. For the reasons outlined below, his Petition is denied.
Facts
The Court lists the facts relevant to the petition as the SJC found them, “fleshed out by
other facts contained in the record and consistent with the state court’s findings.” McCambridge
v. Hill, 303 F.3d 24, 26 (1st Cir. 2002).
On February 5, 2003, the Petitioner and co-defendant in the proceedings below, Andre
Green (“Green”), along with two other individuals, Sean Brown (“Brown”) and Burrell RamseyWhite (“Ramsey-White”), spent time at the home of another individual, Kalif Christopher
(“Christopher”). Sometime between 7:40 PM and 7:50 PM on February 5, 2003, the four men
boarded Orange Line train car 1205 at the Forest Hills MBTA station. They stood in two groups,
with Green and Akara standing near the rearmost door on the platform side of the car and Brown
and Ramsey-White standing together across the aisle. Akara was the only one of the four men
wearing a baseball cap. Philip Gadsden (“Gadsden”) boarded the same train car and sat near the
rear door, near where Akara and Green were standing.
As the train left the Ruggles station a few stops later, a passenger heard a “very loud,
tense verbal exchange” between the men standing, Akara and Green, and the man sitting,
Gadsden. At that time, Gadsden saw that one of the standing men was holding a gun at his side.
Both Akara and Green were looking in Gadsden’s direction, and another passenger saw one of
the men raise his arm and point it in Gadsden’s direction. The passenger’s view was blocked, and

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he could not see what the man pointing held in his hand. Both Green and Akara were wearing
hooded sweatshirts, and the one pointing was wearing a baseball cap.
Gadsden got up from his seat and started moving to the front of train, waving his arms
and yelling, “there’s a gun on the train” and “they have a gun,” while pointing to Akara and
Green. He told passengers to get down, to “stay back,” to “move to the other side,” and to “get
off the train.” As the doors opened at the Massachusetts Avenue MBTA station, passengers
began running from the train car. Akara and Green also got off the train.
Multiple passengers, either on the train or on the platform, heard pops or gunshots
coming from the rear of train car 1205. One passenger, in a car behind car 1205, heard several
loud bangs coming from the front of the train followed by shouts and screams from the same
direction. About ten seconds later, he saw a “pack” of four or five individuals running furiously
away from the direction of the commotion. The passenger heard the men laughing or chuckling
in a congratulatory manner. Another passenger also saw a group of four young males running
toward the station exit. He observed the tallest member of the group (Akara) holding his waist as
if gripping something near his belt. A security camera on a nearby parking garage captured
images of four men running from the station and through a parking lot.
Two shell casings were found on the platform. One bullet ricocheted off the outside of
car 1205 and pierced a guitar case carried by a music student, who was running from the train
with the guitar case over his right shoulder.
The second bullet is the subject of this petition. A passenger heard a scream, turned, and
saw a woman, Hawa Barry, bleeding profusely from the left side of her abdomen. Barry, a recent
immigrant to the United States and unable to understand English, was thirty-six weeks pregnant
at the time. She did not understand Gadsden’s warnings and was shot through the stomach as she

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attempted to exit the train. She was rushed to the hospital; her son was born alive, but later died
from serious internal injuries caused by the bullet. Barry survived after emergency surgery.
Akara and Green returned to the latter’s apartment in the South End section of Boston.
There, Akara showed Green’s cousin a nine-millimeter Desert Eagle semiautomatic handgun, the
same type of gun used in the shooting and a type rare in Boston at the time. Another of Green’s
cousins had seen Akara with same weapon a few weeks earlier. Akara explained that he and
Green “had beef on the train.”
The defendants left the apartment for approximately thirty minutes. When they returned,
Akara was no longer wearing the jacket and hat he had been wearing on the train. Green was still
wearing a black hooded sweatshirt with a distinctive pointed hood. He was not seen wearing that
sweatshirt after the night of the shooting. One of Green's brothers informed them that a pregnant
woman had been shot on the subway. Akara responded, "Oh shit," and Green responded, "Damn
it."
Akara left and returned to Christopher's house. Green also left, going to the apartment of
his girlfriend, Sheena Sanford, where he spent the night. Later that night and into the early
morning hours, Akara and Green spoke with each other by telephone four times. On one
occasion when Akara called, Sanford answered, and Akara asked her, "Did I get away with it?"
According to Christopher, who overheard Akara speaking on the telephone, Akara sounded like
he was "giving orders," saying something to the effect that the person on the telephone should
"bring it back" or "bring it here," and calling the individual "stupid." After one call to Green,
Akara told Christopher "things [were] getting hot."
In the ensuing days, Akara and Green both spoke to two of Green's relatives about the
shooting. Akara called Green's brother six times to ask him if he had heard anything and to warn

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him, "Don't say anything. Don't snitch." Akara similarly instructed Green's cousin not to tell the
police anything, not to "snitch," and mentioned his concern that there might be gunpowder on his
gloves. Green also told his cousin not to talk to the police.
Police officers recovered videotape surveillance images that placed Akara, Green,
Brown, and Ramsey-White inside the Forest Hills subway station at approximately 7:30 P.M.
Based on the videotape surveillance images, officers went to Akara's home on February 9, 2003,
to talk to him about his involvement in the shooting. Akara denied being at the Forest Hills or
Massachusetts Avenue subway stations that evening, or being on an Orange Line train, denied
wearing a baseball cap with the interlocking letters "TC," and denied knowing Green, Brown,
and Ramsey-White. The next day, Green was interviewed at police headquarters. Green similarly
denied being at those locations on February 5, and denied wearing a black hooded sweatshirt.
Procedural History
After a jury trial, Akara was convicted on March 26, 2007 on multiple charges, including
murder in the first degree on a theory of extreme atrocity or cruelty, and was sentenced to life
without parole and consecutive sentences aggregating between 66 and 80 years.
A motion for new trial prior to the direct appeal was filed on April 16, 2010 in light of a
witness, Julian Green, recanting his testimony given in the Superior Court trial. That motion was
denied on November 17, 2010. Commonwealth v. Akara, 27 Mass. L. Rep. 514 (Suffolk Sup. Ct.
2010).
Akara filed a direct appeal to the Supreme Judicial Court, contesting his conviction on
multiple grounds: (1) the theory of joint venture should not have been submitted to the jury; (2)
the defendants’ multiple motions for severance should have been granted; (3) the jury
instructions omitted the requirement that the jury find a joint venture existed; (4) the co-

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defendant’s and prosecutor’s closing arguments violated the right to a fair trial; (5) the jury
instruction on punishment removed the co-defendant’s family bias from the jury’s
considerations; (6) the jury instruction on the theory of extreme atrocity and cruelty improperly
broadened the scope of liability by deviating from the model jury instructions; and (7) evidence
of gang membership and affiliation was improperly admitted. The SJC denied Akara’s appeal on
all grounds. A petition for rehearing was filed on June 3, 2013 on the issue of the SJC’s use of an
insupportable inference to sustain the convictions. That petition was denied on July 2, 2013,
though the SJC issued a modified opinion to amend factual errors.
Akara did not file for a writ of certiorari, and this petition for habeas corpus was timely
filed on May 20, 2014.
DISCUSSION
Akara’s petition for a writ of habeas corpus is governed by the standards set out in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. AEDPA provides
that federal courts may only grant habeas relief if the state court adjudication either:
(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 unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
“Clearly established federal law” under § 2254(d)(1) refers to the “governing legal
principle or principles set forth by the Supreme Court at the time the state court renders its
decision” and must be “holdings, as opposed to dicta.” Lockyer v. Andrade, 538 U.S. 63, 71-72,
123 S.Ct. 1166, 1172 (2003). A state court decision is “contrary to” existing Supreme Court

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precedent if it “‘applies a rule that contradicts the governing law set forth in our cases' or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from our precedent.’” Dagley v. Russo, 540
F.3d 8, 16 (1st Cir. 2008) (quoting Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362 (2002)).
State court adjudications are “unreasonable applications” if they “identif[y] the correct
governing legal principle from the Supreme Court's then-current decisions but unreasonably
appl[y] that principle to the facts of the prisoner's case.” Hensley v. Roden, 755 F.3d 724, 731 (1st
Cir. 2014). State court applications of federal law must be more than “incorrect or erroneous” to
afford habeas relief: they must be “objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510,
520, 123 S.Ct. 2527, 2535 (2003). The petitioner must demonstrate 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.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 786-787 (2011).
When determining whether the state court’s decision was “based on an unreasonable
determination of the facts,” reviewing courts “may not characterize … state-court factual
determinations as unreasonable ‘merely because [they] would have reached a different
conclusion in the first instance.’” Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269, 2277
(2015) (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841 (2010)). “Factual
determinations by state courts are presumed correct absent clear and convincing evidence to the
contrary” and decisions based on factual determinations “will not be overturned … unless
objectively unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041
(2003); 28 U.S.C. § 2254(e)(1). Review under 2254(d)(2) is “limited to the record that was

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before the state court.” Garuti v. Roden, 733 F.3d 18, 23 (1st Cir. 2013) (quoting Brown v.
O’Brien, 666 F.3d 818, 822 n.3 (1st Cir. 2012).
Ground One: Petitioner’s Sufficiency of Evidence Claim Relating to Theory of Joint Venture
Akara contends that the evidence on the record was constitutionally insufficient to
convict him under the “joint venture” theory. Both Green and Akara argued to the SJC that the
“verdict should be vacated because the evidence was insufficient to support both of the
alternative theories of joint venture.” Commonwealth v. Akara, 465 Mass. 245, 253, 988 N.E.2d
430, 438 (2013). The SJC affirmed the verdict, determining that the jury could have found the
evidence supported each alternative theory of guilt. Id. at 256. Akara now contends that this
decision was both an unreasonable application of clearly established federal law as determined
by the Supreme Court, and was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding.
Both parties agree that sufficiency of evidence claims are governed by the Supreme
Court's decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Jackson states that
the constitutional right to due process guarantees “that no person shall be made to suffer the onus
of a criminal conviction except upon sufficient proof – defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt of the existence of every element of the
offense.” Id. at 316, 99 S.Ct. 2781. The relevant test is “‘whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” O’Laughlin v. O’Brien, 568 F.3d
287, 299 (1st Cir. 2009) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781) (emphasis in original).
In evaluating the evidence, the reviewing court must exercise “some degree of intellectual rigor,”
and not credit “evidentiary interpretations and illations that are unreasonable, insupportable, or

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overly speculative.” Leftwich v. Maloney, 532 F.3d 20, 23 (1st Cir. 2008) (quoting United States
v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). For a federal court reviewing a habeas petitioner's
sufficiency of evidence claim, the question is whether the state court's determination was an
“unreasonable application” of the Jackson standard. See Hurtado v. Tucker, 245 F.3d 7, 16 (1st
Cir. 2001) (“The habeas question of whether the state court decision is objectively unreasonable
is layered on top of the underlying standard governing the constitutional right asserted.”).
This Court must also ask whether the state court determination is entitled to AEDPA
deference at all before examining the Petitioner’s sufficiency of evidence claim under § 2254(d).
In addressing Petitioner's sufficiency of evidence claim, the SJC did not explicitly apply Jackson,
but instead used a standard derived from Massachusetts state law and precedent.1 Akara, 465
Mass. at 253, 988 N.E.2d at 438. The SJC relied on a series of Massachusetts cases stemming
from Commonwealth v. Latimore, 378 Mass. 671, 393 N.E.2d 370 (1979). The First Circuit has
held that where a state court decision is framed in terms of state law, the adjudication may
receive § 2254(d)(1) deference “so long as the state standard is at least as protective of the
defendant's rights as its federal counterpart.” Leftwich, 532 F.3d at 23–24; See also Linton v.
Saba, 812 F.3d 112, 124 (1st Cir. 2016) (“That the SJC applied Latimore rather than Jackson
does not diminish its claim to deference under AEDPA….”). In Latimore, the SJC expressly
adopted the federal constitutional standard for sufficiency of evidence challenges as set out in
Jackson. Commonwealth v. Latimore, 378 Mass. 671, 677–78, 393 N.E.2d 370 (citing Jackson,

Specifically, the SJC applied the following standard: “we ask whether, viewing the evidence in
the light most favorable to the Commonwealth, ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Akara, 465 Mass. at 253, 988
N.E.2d at 438 (quoting Commonwealth v. Perez, 460 Mass. 683, 702, 954 N.E.2d 1 (2011)
(emphasis in original).
1

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443 U.S. 307, 99 S.Ct. 2781). Therefore, the SJC's decision on Akara's sufficiency of evidence
claim is entitled to deference under 28 U.S.C. 2254(d)(1).
The SJC acknowledged that this case was an “unusual circumstance[]” and found that for
each of the prosecution’s alternative theories to support a valid jury verdict, each must “support[]
the conclusion that each defendant, although not the shooter, participated in and shared the
requisite intent to commit the crime.” Akara, 465 Mass. at 254. Akara argues that the evidence
on the record was insufficient to support the theory that Green was the shooter and Akara a joint
venturer in that shooting. Based on the record, the affirmance of Akara’s convictions was not an
unreasonable application of the Jackson standard. The SJC applied the proper constitutional
standard through Latimore.
The jury returned a general verdict in this case. As the Supreme Court has held, when a
jury is provided multiple theories and that jury returns a general verdict, the conviction is “valid
so long as it was legally supportable on one of the submitted grounds….” Griffin v. United
States, 502 U.S. 46, 49, 112 S.Ct. 466, 469 (1991). “On federal habeas review of a state-court
conviction that potentially rests on dual theories of guilt, the writ will not issue as long as one of
the two theories is adequately supported.” Leftwich, 532 F.3d at 24; See also United States v.
Moran, 393 F.3d 1, 14-15 (1st Cir. 2004); Francois v. United States, 2016 WL 4079494 at *3 (D.
R.I. July 29, 2016). Although Massachusetts law rejects the guiding principle from Griffin, see
Commonwealth v. Plunkett, 422 Mass. 634, 664 N.E.2d 833 (1996), “[u]nder Jackson … the
minimum amount of evidence that the Due Process Clause requires to prove the offense is purely
a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655, 132 S.Ct. 2060, 2064 (2012).
Akara concedes that “[n]o one disputed that there was sufficient evidence for a jury to
conclude that the petitioner was the shooter or that Green was the shooter.” Pet. Memo at 7.

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Effectively, Akara admits the evidence was sufficient to convict him under the principal theory
of liability. As the facts sufficiently support that theory, the conviction is valid and Akara’s
conviction meets the standard set by Jackson.
Even if that were not the case, there was sufficient evidence on the record to support
Akara’s conviction under the joint venturer theory. The SJC, when considering this argument,
constructed the facts relating to joint venture as follows:
There was also evidence providing a sufficient basis for an alternative
finding: that it was Green who had fired the shots intended to hit Gadsden, and
that Akara shared his intent and knowingly participated in the shooting. There
was evidence that Green and Akara had a tense exchange with Gadsden on the
train. The jury reasonably could have inferred that Akara had passed the gun to
Green at some point before the shooting, and that Green clutched the gun in his
pocket until the two left the train and Green fired at Gadsden. The jury could have
credited Barry's testimony that, as Green "was coming out of the train, I saw his
hand taking something and shooting me." On this version of events, the jury
reasonably could have determined that Akara provided assistance to Green by
handing him the gun that had been in Akara's possession; that Akara stood by
Green as he fired the weapon at Gadsden; and that Akara and Green fled the scene
and continued to work together after the shooting in order to ensure that they
would not be apprehended by the police.
Akara, 465 Mass at 255-256, 988 N.E.2d at 440. Akara contests this recitation of the
facts in his memorandum, but after reviewing the record and drawing all reasonable inferences in
the prosecution’s favor, this Court finds the evidence permitted a rational jury to find Akara a
joint venturer in the murder of Hawa Barry’s child. As Akara notes, there was enough testimony
for a jury to identify either Green or Akara as the shooter. Both Green and Akara were involved
in the “tense” exchange with Gadsden, and multiple witnesses testified that Gadsden yelled “they
have a gun” on the train car. The jury also heard evidence that Akara possessed the Desert Eagle
prior to the February 5, 2003 shootings. Witness Julian Green testified that just a few weeks
earlier, Akara had shown him the same type of weapon. Given that the evidence supports either
proposition – that Akara fired the gun, or Green did – it is not unreasonable for a jury to infer
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that, if they believed Green to be the shooter, Akara handed the gun to him some point before the
incident occurred.
There was also ample evidence that both Akara and Green worked together after the
shootings to avoid punishment. They ran from the scene of the shooting together, laughing as
they went. Both disposed of their clothes shortly after the incident. Akara and Green spoke to
each other four times in the early morning hours just after the shooting, inferably in an attempt to
form a plan to disconnect themselves from the incident. Both Akara and Green told members of
Green’s family not to “snitch” and not to talk to the police. Given these facts, there was
sufficient evidence in the record from which a jury could find Akara guilty of these charges
under the joint venture theory. The conviction is therefore valid under the standards set by
Jackson and Latimore.
Akara also contends that the factual scenario expressed by the SJC was “based on an
unreasonable determination of the facts in light of the evidence presented” in violation of §
2254(d)(2). That claim is similarly without merit. Contrary to the argument presented in the
Petitioner’s memorandum in support of his petition, the SJC did not “completely distort” the
evidence: as noted above, there was sufficient evidence on the record from which a jury could
have found (1) that the Petitioner possessed the weapon used in the shooting prior to February 5,
2003 and (2) Andre Green fired the weapon in that incident. Akara and Green fled together and
made efforts to ensure they were not apprehended. This interpretation of the evidence is not
“objectively unreasonable” and the Petitioner has not rebutted those factual findings by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The Petitioner therefore is not entitled to habeas
relief under 2254(d)(2) on his sufficiency of the evidence claim.

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Ground Two: Petitioner’s Severance Claim
Akara asserts the trial court erred by failing to sever his trial from his co-defendant
Green’s, arguing that their defenses were mutually antagonistic and irreconcilable. Both Akara
and Green repeatedly moved for severance throughout the trial, but all of their motions were
denied.
The SJC’s opinion relied primarily on Massachusetts law in concluding that the failure to
sever the trials was not prejudicial. When multiple individuals are charged with criminal conduct
arising from the same event, it is presumed they will be tried together. Mass. R. Crim. P. 9(b).
State law allows for severance if the “prejudice resulting from a joint trial is so compelling that it
prevents a defendant from obtaining a fair trial.” Commonwealth v. Vasquez, 462 Mass. 827,
836, 971 N.E.2d 783, 792-793 (2012) (quoting Commonwealth v. Moran, 387 Mass. 644,658,
722 N.E.2d 399 (1982)). Severance is only required if the defenses are “mutually antagonistic
and irreconcilable,” meaning that the “sole defense of each was the guilt of the other” or
“acceptance of one party's defense will preclude the acquittal of the other.” Id. at 837, 971
N.E.2d at 793 (citing Moran, 387 Mass. at 655, 442 N.E.2d at 406); see United States v. Paradis,
802 F.2d 553, 561 (1st Cir. 1986) (“To obtain severance on the grounds of conflicting defenses, a
defendant has to demonstrate that the defenses are so irreconcilable as to involve fundamental
disagreement over core and basic facts.”). Even when defenses are irreconcilable, however,
severance is not always required if “there is no compelling prejudice” and “the jury were
warranted in finding [the defendant] guilty . . . on the basis of . . . eyewitness testimony [and
other evidence].” Commonwealth v. Siny Van Tran, 460 Mass. 535, 543, 953 N.E.2d 139, 150
(2011) (quoting Commonwealth v. Stewart, 450 Mass. 25, 31, 875 N.E.2d 846, 853-854 (2007)).

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Massachusetts state law regarding severance “generally tracks” the applicable federal
law. Moran, 387 Mass. at 655, 442 N.E.2d at 406. There is a preference in federal law to try
defendants indicted for the same criminal activity together. Fed. R. Crim. P. 8(b); Zafiro v.
United States, 506 U.S. 534, 537, 113 S. Ct. 933, 937 (1993). Severance may be required under
federal law, like Massachusetts law, when joint trials will prejudice a defendant, often because of
mutually antagonistic defenses between co-defendants. Fed. R. Crim. P. 14(a); Zafiro, 506 U.S.
at 538, 113 S. Ct. 933. “Mutually antagonistic defenses are not prejudicial per se,” and severance
should only be granted if “there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.” Zafiro, 506 U.S. at 538-39, 113 S. Ct. 933. “‘Garden variety’ prejudice,
which always exists when more than one defendant or offense are tried together, does not
warrant a new trial.” United States v. Tejeda, 481 F.3d 44, 55 (1st Cir. 2007). The First Circuit
has also held, though outside the habeas context, that the “trial judge has considerable latitude in
deciding severance questions.” United States v. O’Bryant, 998 F.2d 21, 25 (1st Cir. 1993)
(internal quotations omitted); see also Moran, 387 Mass. at 407, 442 N.E.2d at 658 (“In this
Commonwealth, severance is usually a matter within the sound discretion of the trial judge.”).
Both parties present Zafiro as the applicable “clearly established federal law” to evaluate
Petitioner’s severance claim. Another Massachusetts District Court recently noted the First
Circuit has not yet ruled on whether Zafiro is “clearly established federal law” that is binding on
the states. Hernandez v. Massachusetts, 2017 U.S. Dist. LEXIS 7577 at *14 (D. Mass. Jan. 19,
2017); See Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir. 2010) (holding Zafiro “does not
establish a constitutional standard binding on the states requiring severance in cases where
defendants present mutually antagonistic defenses”). However, I find, as the court in Hernandez

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found, that it is unnecessary to decide the issue because “the SJC here adhered to state law that is
substantially similar to Zafiro.”2 Hernandez, LEXIS 7577 at *14.
While the Court is cognizant of the “potential clash of interests” between Green’s defense
and the Petitioner’s, particularly considering the former chose to testify while the latter did not,
the SJC’s affirming the denial of severance was not an unreasonable application of Zafiro. The
SJC held that, even assuming Akara’s and Green’s defenses were irreconcilable, there was
“considerable independent evidence of the guilt of each defendant” from which a jury could
reasonably conclude both defendants were guilty without relying on inculpatory evidence from
Green. Akara, 465 Mass. at 257-258, 988 N.E.2d at 441-442; see United States v. Palow, 777
F.2d 52, 55 (1st Cir. 1985) (severance not warranted in part because, even if co-defendants were
unable to testify because trials were severed, sufficient independent evidence linked defendant to
the crime); Siny Van Tran, 460 Mass. at 543, 953 N.E.2d at 150 (severance not required when
other evidence is strong enough that jury was warranted in finding guilty verdict).
The SJC correctly assessed the evidence on the record. The jury heard ample testimony
from a number of witnesses establishing that either Green or Akara was the shooter on that
Orange Line train. The two boarded the train together, were present at the scene of the incident,
and there was abundant evidence (which, again, the Petitioner concedes) that one of them fired
the gun. Akara and Green fled the scene together, and additional witnesses demonstrated that the
two attempted to disconnect themselves from the crime, either by discarding incriminating
physical evidence or directly instructing others not to speak to the police. Other witness
testimony connected the Petitioner to the gun used in the shooting. Even if the jury either entirely

Indeed, the SJC’s opinion cited to Zafiro directly when addressing the severance issue.
Akara, 465 Mass. at 257, 988 N.E.2d at 441.
2

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credited or entirely discredited the testimony of Andre Green, there was more than enough
evidence on the record from which a jury could determine both defendants were guilty of the
charged crimes. It cannot be said the prejudice to the Petitioner “prevent[ed] the jury from
making a reliable judgment about guilt or innocence,” and therefore SJC’s affirmance of the
decision not to sever the trials was not an unreasonable application of either Zafiro or
comparable state law. Zafiro, 506 U.S. at 539, 113 S.Ct. at 938.
Nor can the SJC’s affirmance be characterized as being “based on an unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). As noted
above, the Court must presume the state court’s findings are sound unless Akara “rebuts the
presumption of correctness by clear and convincing evidence." Miller-El, 545 U.S. at 240, 123
S.Ct. 1029 (internal quotations omitted); 28 U.S.C. § 2254(e)(1). Nothing in the record leads this
Court to the belief that the state court’s findings were false, and the Petitioner has not presented
this court with evidence that clearly and convincingly rebuts those findings.
Ground Three: Petitioner’s Claims Regarding Improper Closing Arguments
Finally, the Petitioner contends that the closing arguments from both the prosecutor and
his co-defendant’s counsel were improper and violated his due process rights. Petitioner argues
the SJC again misapplied clearly established federal law such that he is entitled to habeas relief.
Both parties agree that, for claims regarding improper remarks during closing arguments,
the established law states the “relevant question is whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974)). In making that determination,
courts will “examine (1) whether the prosecutor's conduct was isolated and/or deliberate; (2)

16

whether the trial court gave a strong and explicit cautionary instruction; and (3) whether it is
likely that any prejudice surviving the judge's instruction could have affected the outcome of the
case." Olszewski v. Spencer, 466 F.3d 47, 59 (1st Cir. 2006) (quoting United States v. Lowe, 145
F.3d 45, 50 (1st Cir. 1998)). On habeas review, the First Circuit employs the Darden standard
when assessing the potential prejudicial effect of improper closing arguments.3 See Kirwan v.
Spencer, 631 F.3d 582 (1st Cir. 2011) (“There is no precise federal standard governing due
process claims based on a prosecutor’s remarks….Darden and Donnelly, however, provide the
relevant Supreme Court law”) (quoting Dagley, 540 F.3d at 15 n.3). The Supreme Court has also
noted that the Darden standard is a “very general one” that affords courts “more leeway . . . in
reaching outcomes in case-by-case determinations.” Parker v. Matthews, 567 U.S. 37, 48, 132 S.
Ct. 2148, 2155 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140,
2155 (2004)).
As with Akara’s sufficiency claim, the question again is whether the state court
determination is entitled to deference, as the SJC did not explicitly apply the Darden or Donnelly
standards. It instead applied a standard derived from and developed in Commonwealth v. Kelly,
417 Mass. 266 (1994). The SJC cited to various decisions in the Kelly line of cases while
analyzing the improper comments made by the prosecution and the co-defendant’s counsel.4

3

While the First Circuit uses a four factor test to determine whether an improper closing
was prejudicial to a defendant, in the context of habeas review this test is not “clearly established
federal law” and is therefore inapplicable. See Parker, 567 U.S. at 48, 132 S. Ct. 2148 (holding
Sixth Circuit erred by granting habeas review based on application of their own precedents rather
than the Supreme Court’s in assessing harm from improper closing).
4
Although the SJC did not specifically elucidate the standard applied, their opinion cites
Commonwealth v. Beaudry, 445 Mass. 577, 839 N.E.2d 298 (2005), which explicitly quotes the
relevant standard from Kelly. The SJC’s opinion cites the Beaudry decision while evaluating the
prosecutor’s closing, and explores the factors of the Kelly standard when evaluating the codefendant’s closing.
17

Akara, 465 Mass. at 262-265, 988 N.E.2d at 444-447. The Kelly standard “includes all of the
factors explicitly considered by the Court in Donnelly and Darden, or close variants thereof.”
Dagley, 540 F.3d at 15 n.3. Accordingly, because the state law standard applied is “at least as
protective of the defendant's rights as its federal counterpart,” the SJC’s decision is entitled to
deference under § 2254(d). Leftwich, 532 F.3d at 23.
(1) Prosecutor’s Argument
Akara argues the SJC erred in evaluating the prejudicial effect of the prosecutor’s closing
argument regarding joint venture. The prosecutor implied that the jury could find a joint venture
between Green and Akara because the “Boston Police, the District Attorney’s Office, and the
Suffolk County Grand Jury had heard sufficient evidence to charge not one, but two people.”
Although this comment improperly suggested the police believed both Akara and Green were
involved in the shooting because both were indicted, the Court agrees with the SJC that it was
not sufficiently prejudicial to deny Akara his due process rights.
An indictment cannot be used as evidence of guilt. Bell v. Wolfish, 441 U.S. 520, 533, 99
S.Ct. 1861, 1870 (1979). However, the trial judge provided proper instruction on that very point
in his final charge to the jury:
I told you at the outset of the trial, that the fact … defendants are seated in
front of you and accused of allegedly committing crimes against the
Commonwealth of Massachusetts is not evidence of his or her guilt and it should
not be taken as raising any inference of prejudice against him or them …. The fact
that somebody is indicted of a crime is not evidence that they committed a crime
and should not be considered for that purpose.

Trial Tr. Vol. 28, pp. 71-72, March 13, 2007. The improper conduct was relevant to the
critical issue of joint venture, a highly contested issue throughout the trial and in this Petition.
Akara, 465 Mass. at 262, 988 N.E.2d at 444-445. Though there may have been the possibility of

18

prejudice from the prosecutor’s comments, this was a single improper comment over the course
of an extended trial. See United States v. Capone, 683 F.2d 582, 586 (1st Cir. 1982) (improper
appeal to passion in closing argument not prejudicial because it was not deliberate, was isolated,
and was accompanied by curative instructions); Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.
1995) (“isolated incident” of prosecutor’s improper comment during lengthy trial did not justify
habeas relief when coupled with curative jury instructions). The trial judge’s jury instructions
alleviate the concerns of prejudice. Although there was no curative instruction made
contemporaneously with the prosecutor’s comment, the jury instruction came just hours after the
prosecutor’s closing argument. Moreover, the jury was instructed that the closing arguments are
not evidence. Trial Tr. Vol. 28, p. 44, March 13, 2007. As “jurors are normally presumed to
follow the trial court’s instructions,” the judge’s instruction sufficiently rectified the prosecutor’s
comment, and the comment thus could not have affected the jury’s deliberations. United States v.
Sampson, 486 F.3d 13, 39 (1st Cir. 2007).
Akara also argues that this comment by the prosecutor was more pernicious than simply
suggesting his guilt through the indictment. He claims that the prosecutor “went much farther
than that by stating that [the prosecutor’s] office … and the Boston police … also concluded that
two people were involved.” Pet. Memo at 13. Although the Petitioner gestures toward the idea
that this comment is a misstatement of evidence, he cites nothing in support of that contention.
Moreover, plainly read, the prosecutor’s comment suggests only that there was sufficient
evidence to indict both Green and Akara; while the indictment clearly cannot be considered as
evidence of guilt, as both men stood on trial together, this fact was no mystery to the jury. The
jury was properly instructed that indictments are not indicative of guilt, and that closing
arguments are not evidence. Trial Tr. Vol. 28, pp. 44, 71-72, March 13, 2007. The SJC therefore

19

did not unreasonably apply the state law equivalent of the Darden standard, and Akara’s claim
for relief is denied on this argument.
(2) Co-Defendant’s Closing Argument
Akara further argues that multiple comments during his co-defendant’s closing statement
were also improper and violated his due process rights. The SJC’s opinion categorized Akara’s
claims against Green’s counsel into three general categories: whether counsel (1) implicitly
commented on Akara’s decision not to testify; (2) improperly vouched for the testimony of
Green and his family, thereby injecting his personal credibility and opinions into the case; and
(3) inflamed the jury’s passions against Akara by urging them to focus on autopsy photos of the
victim. Akara contends that the SJC unreasonably applied the standard from Darden in
considering these arguments.5
(i) Co-Defendant’s Comments on Petitioner’s Failure to Testify
Petitioner argues that Green’s counsel’s comment during his closing that his client had
the “courage” to testify was an impermissible indirect comment on Akara’s failure to testify. It is
a violation of the Fifth Amendment for a prosecutor to “comment – either directly or indirectly –
upon the defendant’s failure to testify in his or her own defense.” United States v. Bey, 188 F.3d
1, 8 (1st Cir. 1991). The First Circuit asks when determining if such a comment was improper
“whether the language used was manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure of the accused to testify.” Oses v.
Massachusetts, 775 F. Supp 443, 464 (D. Mass. 1991) (quoting Ferreira v. Fair, 732 F.2d 245,

It is noteworthy, in considering Akara’s contentions regarding co-defendant’s counsel,
that “improper statements by counsel for a codefendant may result in prejudice to a defendant,
[but] they are less likely to do so than improper arguments by a prosecutor.” Akara, 465 Mass. at
263, 988 N.E.2d at 445 (citing Berger v. United States, 295 U.S. 78, 55 S.Ct. 629 (1935); see
also Young, 470 U.S. at 7-10, 105 S. Ct. 1038.
5

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249 (1st Cir. 1984)). A court must view those comments in context, as when particular comments
“are susceptible to two plausible meanings, one of which is unexceptionable and one of which is
forbidden, context frequently determines meaning.” United States v. Taylor, 54 F.3d 967, 979
(1st Cir. 1995); See also United States v. Lilly, 983 F.2d 300, 307 (1st Cir. 1992). Within that
context, a court “should not lightly infer that a prosecutor intends an ambiguous remark to have
its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” Donnelly, 416 U.S. at 647, 94 S.Ct.
1868.
The SJC found the comment proper because no “direct reference” was made to Akara’s
decision not to testify. Akara properly urges us toward the context to evaluate his co-defendant’s
comments,6 but even when viewed within the structure of the closing argument, it is not clear
these statements highlighted the Petitioner’s decision not to testify. This Courts agree with the
SJC that Green’s counsel was “emphasiz[ing] that his client faced cross-examination from two
motivated adversaries, the prosecutor and counsel for Akara.” Akara, 465 Mass. at 264, 988
N.E.2d at 446. Moreover, the trial judge properly instructed the jury both that closing arguments
are not evidence, and that the jury should draw no inferences from the fact that the Petitioner did

6

The relevant context, as purported by the Petitioner in his Memorandum:
Andre Green [is] fighting a war on two fronts, the Commonwealth v. Andre
Green and Chimezie Akara versus Andre Green. Andre Green [had] the courage,
the courage to get up from that seat, and walk to that seat and to subject himself to
a blistering cross examination by Mr. Akara’s attorney. Two and one half days he
sat on that stand longer than any other witness combined with other witnesses as
far as total time of testimony is concerned. He admitted to you that he lied, but he
also told you that he told the truth. And the outline [of] what he told the police in
the second half of February 10th, [is] very, very similar to the story that he told
you on the stand. Chimezie Akara shot the gun. Chimezie Akara was staring this
person down. Chimezie Akara, Chimezie Akara, Chimezie Akara.
Trial Tr.., Vol. 27, pp. 95-96, March 12, 2007.
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not testify. Trial Tr. Vol. 28, pp. 44, 63, 64-66, March 13, 2007; see Oses, 775 F. Supp. at 464
(finding that “standing alone,” prejudicial effect of comment by judge regarding defendant’s
failure to testify would be mitigated by jury instructions). The potentially improper comment
therefore did not “so infect the trial with unfairness,” and Akara’s argument therefore fails to
justify habeas relief.
(ii) Co-Defendant’s Counsel Vouching for Green and Green’s Family’s Testimony
Petitioner next contends that the statements by co-defendant during closing improperly
vouched for Green and his family. Akara specifically argues that Green’s counsel:
(1) Vouched for Green by asserting that Green was not intelligent enough to persuade his
family to lie for him;
(2) Vouched for Julian Green’s testimony by claiming the police and prosecution knew
which parts of Green’s initial story were true and which were false;
(3) Vouched for Green’s and his family’s allegations that Petitioner was the shooter by
claiming Green was not charged with murder until months after an unrelated arrest
because “the police still had their doubts that Andre Green was the shooter in this case”;
(4) Vouched for Green’s testimony by misstating evidence regarding Green’s
identification of particular individuals in a photograph;
(5) Vouched for Green and his family’s testimony by arguing the Commonwealth, by not
posing for the jury a theory on the shooter’s identity, “believes that Chimezie Akara is the
shooter”;
(6) Vouched for Green and his family’s testimony by arguing that if they conspired to lie
together in their testimony, than counsel would be complicit in that conspiracy as well;
(7) Concluded by vouching for Green’s credibility by reiterating that the Commonwealth
believed Akara was the shooter.
As to the misstatement of evidence, co-defendant’s comments during closing should not
have been made. However, jury instructions are generally held to be sufficient to cure
unintentional misstatements of evidence during closing arguments. Bey, 188 F.3d at 9. As Akara

22

has not claimed that the misstatements were deliberate, the trial court’s instruction that closing
statements are not evidence sufficiently cured any potential prejudice.
As to Petitioner’s claim of improper vouching, the question of prejudice is murkier. The
SJC noted that it is “improper for an attorney to vouch for a witness by expressing a personal
belief in the credibility of a witness or to indicate that he or she has knowledge independent of
the evidence before the jury verifying a witness’s credibility.” Akara, 465 Mass. at 265, 988
N.E.2d at 446 (internal quotation marks omitted). “Improper vouching occurs ‘when [a
prosecutor] places the prestige of her office behind the government's case by . . . imparting her
personal belief in a witness's veracity or implying that the jury should credit the prosecution's
evidence simply because the government can be trusted.’” Lucien v. Spencer, 2015 U.S. Dist.
LEXIS 134154 at *62 (D. Mass. Sept. 30, 2015) (quoting United States v. Perez-Ruiz, 353 F.3d
1, 9 (1st Cir. 2003)). Although improper vouching traditionally occurs when the prosecutor
attempts to bolster the credibility of certain witnesses or evidence, the Supreme Court has stated
that “[d]efense counsel, like the prosecutor, must refrain from interjecting personal beliefs into
the presentation of his case.” United States v. Young, 470 U.S. 1, 8-9, 105 S. Ct. 1038, 10421043 (1985) (also noting “both prosecutor and defense counsel are subject to the same general
limitations in the scope of their argument”). As the SJC noted in their opinion, “[t]o permit
counsel to express his personal belief in the testimony …. creates the false issue of the reliability
and credibility of counsel.” Greenberg v. United States, 280 F.2d 472, 475 (1st Cir. 1960).
Many of the comments made by Akara’s co-defendant that he now complains of were
likely improper, but the Court agrees with the SJC that any potential prejudice was mitigated by
the jury’s understanding that Green’s counsel was acting only as a “zealous advocate,” and that
the judge’s instruction preempted any remaining prejudice. Whatever vouching Green’s counsel

23

may have done for his client or his client’s family was quashed by the judge’s instructions that
closing arguments are not evidence, and that the jury is the sole judge of witnesses’ credibility.
More concerning were Green’s counsel’s implications that the government in actuality
believed Akara was the shooter, but chose not to present that theory of the case. This expression
of personal opinion as to Akara’s guilt and the suggestion the government shared that belief is
particularly troubling. See Young, 470 U.S. at 19, 105 S. Ct. 1038 (“the prosecutor's …
expressing his personal opinion concerning the guilt of the accused … can convey the impression
that evidence not presented to the jury, but known to the prosecutor, supports the charges against
the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the
evidence presented to the jury”). However, it cannot be said that these comments “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416
U.S. at 643, 94 S.Ct. 1868. As noted previously, the trial judge gave limiting instructions in his
jury charge both that closing arguments are not evidence and that the jury should consider the
case solely on the evidence before them. There was also considerable evidence of Akara’s guilt,
as detailed throughout the SJC’s opinion and the trial record. Finally, as noted above and in the
SJC’s opinion, “improper statements by counsel for a codefendant may result in prejudice to a
defendant, [but] they are less likely to do so than improper arguments by a prosecutor.” See n.5
infra. Considering these protections together, the SJC reasonably applied the federal law clearly
established in Darden and Donnelly, and Akara’s request for relief on this argument must be
denied.
(iii) Co-Defendant’s Counsel Inflaming the Jury’s Passions With Autopsy Photos
Finally, Akara contends that Green’s counsel improperly inflamed the jury’s passions by
focusing on the autopsy photographs of the infant victim during his closing statement. Green’s

24

counsel urged the jury during his closing argument that the photos were “going to rip [the jury’s]
heart out” and stated, “that’s what Chimezie Akara did on February 5, 2003.”
This was clearly error on the part of Green’s counsel, but it does not afford Akara habeas
relief. The Court is instructed by the facts of Darden: in that case, the prosecutor made a number
of decidedly improper comments during his closing that attempted to appeal to the jury’s
emotions and passions. Darden, 477 U.S. at 180, 106 S.Ct. 2464. The prosecutor, among other
comments, referred to that petitioner as an “animal,” wishing that he could see the petitioner
“with no face, blown away by a shotgun,” and that “we [were] unlucky” the petitioner wasn’t
killed. Id. at 180 n.12, 106 S.Ct. 2464. Despite those comments and other similarly inflammatory
remarks, the Supreme Court denied habeas relief because they did not believe the trial was
“fundamentally unfair.” Id. at 183, 106 S.Ct. 2464.
Green’s counsel’s focus on the autopsy photos did not rise to that level of impropriety,
particularly when the trial judge had already excluded some of those photographs deemed “too
prejudicial.” Akara, 465 Mass. at 265 n.12, 988 N.E.2d at 447 n.12. As with Akara’s other
contentions regarding the closing statements, there are mitigating factors that make granting of
habeas relief inappropriate. The evidence was strong enough to convict Akara on multiple
theories. See Young, 470 U.S. at 19, 105 S. Ct. 1038; United States v. Levy-Cordero, 67 F.3d
1002. 1009 (1st Cir. 1995) (prejudice from improper comments overcome, inter alia, by
“sufficiently strong” evidence of defendants’ guilt). Moreover, as the SJC noted, the jury was
properly instructed that they were not to base their decision on sympathy. The prosecutor’s
closing argument reiterated that message.
In sum, though some of co-defendant counsel’s statements during closing arguments
were improper, it cannot be said they, either individually or collectively within the context of the

25

closings and trial, infected the proceedings with prejudice such that Petitioner’s due process
rights were violated. Akara’s request for habeas relief is therefore denied on this ground.

Conclusion
For the reasons stated above, Chimezie Akara’s Petition for a Writ of Habeas Corpus
(Docket No. 1) is denied. In addition, the Petitioner is advised that any request for the issuance
of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 is also denied, as the Court finds
that the Petitioner cannot demonstrate that reasonable jurists could debate whether his claims
should be resolved in a different manner, or that there is any basis to proceed further with the
issues he has presented.

So Ordered.

/s/ Timothy S. Hillman
TIMOTHY HILLMAN
DISTRICT JUDGE

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