Seino v. Goguen

Filing 20

District Judge Timothy S. Hillman: ORDER entered. MEMORANDUM OF DECISION AND ORDER. The Petition Under 28 U.S.C. § 2254 For Writ OF Habeas Corpus By A Person In State Custody (Docket No.1), is denied. Certificate of Appealability is Denied.(Castles, Martin)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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v.
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KRISTIN LADOUCEUR,SUPERINTENDENT, )
NORTH CENTRAL CORRECTIONAL
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INSTITUION AT GARDNER,
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Respondent.
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__________________________________________)
CARLOS A. SEINO,
Petitioner,

Civil Action No.
19-40101-TSH

MEMORANDUM OF DECISION AND ORDER
September 19, 2022
HILLMAN, S.D.J.
Background
Carlos A. Seino (“Seino” or “Petitioner”) filed a Petition Under 28 U.S.C. § 2254 For
Writ Of Habeas Corpus By A Person In State Custody (Docket No. 1)(“Petition”) against Kristin
Ladouceur, Superintendent, North Central Correctional Institution, Gardner, MA
(“Respondent”). Petitioner was convicted in Massachusetts Superior Court of Murder in the first
degree (felony-murder) and armed robbery. He is serving a sentence of life imprisonment
without the possibility of parole on the murder conviction. He asserts the following three
grounds for relief:
Ground One: He received ineffective assistance of counsel in violation of the
Sixth Amendment on the grounds that his counsel was incompetent, inefficient
and inattentive the result of which was prejudicial to him.

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Ground Two: Petitioner’s right to confront adverse witnesses against him under
the Sixth Amendment was violated when the trial court permitted substitute
witnesses to testify (over his objection) to findings contained in the DNA testing
report, the autopsy report and the death certificate made by analysts/examiners
who did not testify.
Ground Three: Petitioner’s Due Process Rights were violated when the
Commonwealth failed to turn exculpatory evidence over to him as required under
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). More specifically, he
asserts he was not provided: (i) an investigator’s handwritten notes and a police
photograph of his injured right hand which had been lost or destroyed; (ii)
evidence that the appearance of the crime scene had been altered by the Quincy
Police Department (“QPD”); and (iii) evidence that the QPD had contaminated
the crime scene.
Procedural History
On September 19, 2006, a Norfolk County grand jury returned an indictment charging
Petitioner with first-degree murder (on a theory of felony murder) and armed robbery. On June 8,
2008, the Commonwealth filed several motions in limine including the following: (1) to admit
the testimony of a substitute medical examiner; (2) to admit the testimony of substitute witnesses
from the Massachusetts State Police Crime Laboratory; (3) to allow Dr. Robin Cotton to testify
as a substitute DNA analyst; and (4) to use and admit charts of DNA test results. The trial judge
ruled that the substitute witnesses would be allowed to testify based on their own opinions.
A jury trial commenced on June 1, 2008, and on June 19, 2008, the jury returned a
verdict finding Petitioner guilty of armed robbery and first-degree felony murder. The trial judge
sentenced him to a state-prison term of life on the first-degree murder conviction with a
concurrent state-prison term of a minimum of five years and a maximum of seven years on the
armed robbery conviction. Petitioner timely filed a notice of appeal on June 27, 2008. In
accordance with the schedule set by the SJC, Petitioner his brief in support of his appeal on

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February 10, 2017 1, raising the following issues: (1) the trial court committed reversible error
when it allowed multiple substitute witnesses to testify to the factual findings contained in (a) an
autopsy report and a death certificate, and (b) DNA test reports, none of which were authored by
any of the testifying witnesses; and (2) the trial court committed reversible error when it allowed
a DNA expert to opine that the petitioner’s DNA profile matched that of a sample from the
victim’s clothing, where said expert was not affiliated with the lab that tested the sample and
where the only testimony as to authenticity of the DNA results in question was erroneously
admitted through hearsay testimony by a substitute expert who had not performed the DNA
testing.
On December 13, 2017, after the SJC had heard oral argument on his direct appeal,
Petitioner filed a motion for a new trial. In his motion for a new trial, Petitioner raised the
following issues: (1) he was deprived of the effective assistance of counsel where trial counsel
(a) failed to object to the introduction of the lab reports authored by non-testifying experts,
resulting in the loss of his constitutional right to confrontation; (b) failed to have Petitioner’s
DNA expert, for whom trial counsel had requested court funding multiple times, attend the
exhaustive DNA testing by the Commonwealth on the only DNA samples found to have matched
Petitioner; (c) failed to call at trial both a pathologist and a blood-spatter expert to challenge the
expert testimony of the Commonwealth’s experts, after trial counsel had requested court funding
for said pathologist and blood-spatter expert; and (d) failed to present any evidence showing the
pattern of DNA mishandling by the state lab at the time DNA tests were being conducted in the

Seino’s appellate counsel initially filed a motion to stay the appeal; After no movement on the case,
counsel filed a motion to withdraw in 201l, and new counsel was appointed. It appears the matter was further
delayed as new counsel sought to obtain evidence. The SJC vacated the stay in January 2016.
1

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case; (2) the prosecution violated Petitioner’s constitutional due process rights under Brady v.
Maryland when (a) an investigator for the Massachusetts State Police (“MSP”), in direct
contravention of the department’s own policy, deliberately destroyed his handwritten
investigation notes, thereby depriving the petitioner of potentially exculpatory evidence; and (b)
the QPD lost a photograph that officers took of Petitioner’s wounded hand when interrogating
him at the police station. Petitioner also presented other claims pro se pursuant to
Commonwealth v. Moffett, 383 Mass. 201, 208, 418 N.E.2d 585 (1983) (setting forth procedure
for criminal defendant to raise certain issues pro se), specifically, ineffective assistance of
counsel for improperly stipulating to police diligence in the investigation; failing to investigate
alibi witnesses in a timely way; and employing an investigator with a conflict of interest. On
May 8, 2018, the SJC affirmed Petitioner’s convictions and denied the motion for a new trial. On
July 29, 2019, Petitioner filed the instant Petition.
Facts 2
The Murder
In the spring of 2002, Seino moved into an apartment with two roommates in Quincy,
Massachusetts. By August of that year, he was significantly behind on the rent. On August 2,

2

The Court adopts the SJC’s findings of fact set forth in the opinion in Commonwealth v. Seino, 479 Mass.
463, 465-66, 93 N.E.3d 149 (2018). Such findings are presumed correct unless Petitioner rebuts said presumption by
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). “The presumption of correctness is equally applicable
when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Faulk v. Medeiros, 321 F.
Supp. 3d 189, 195 (D. Mass. 2018)(internal quotation marks and citation to quoted case omitted). As pointed out by
the Respondent, Petitioner fails to offer new evidence or otherwise challenge the SJC’s findings of fact and instead,
at best, offers a different interpretation of the evidence that was before the state court, which is insufficient to
overcome the presumption of correctness. Teti v. Bender, 507 F.3d 50, 59 (1st Cir. 2007) (petitioner does not attempt
to argue he has clear and convincing evidence to overcome the presumption here. Instead, he tries to refute the
appellate court’s factual determinations by employing the same documents already considered by the state courts.
However, describing how different parties stated different versions of events does not constitute the needed showing
of clear and convincing evidence); see also Companonio v. O'Brien, 672 F.3d 101, 111 (1st Cir. 2012)(court cannot

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Seino’s roommate warned him that he would be asked to move out if he did not pay the total
amount that he owed by the following day. Seino paid a portion of the amount owed to his
roommate before going out for the evening.
That night, the victim spent several hours at a local Quincy bar, where he cashed two
checks for a total of $603 and put the money in his jeans’ pocket. At the bar, the victim drank
several beers, played Keno and darts, and socialized. The victim, who appeared to be drunk ,
bought drinks for patrons and “flaunt[ed]” his money such that one of his friends urged him to
“put [it] away.” He spent approximately eighty dollars while at the bar that night.
Seino arrived at the bar at approximately midnight. He saw some people he knew and
observed the victim (whom he did not know) staggering around with Keno tickets. He stayed for
between twenty and thirty minutes, leaving at approximately 12:30 a.m. The victim left the bar
when it closed, around 1 a.m., traveling by foot. At approximately 1:30 a.m., Seino woke up his
roommate and gave him the remaining money owed in cash. Later that morning, the roommate
observed Seino in front of the television listening to the Quincy public access channel, which
was broadcasting the police scanner.
The victim’s lifeless body was discovered at approximately 7 a.m. on a walkway behind
the Quincy public library with contusions to his nose and the back of his head. Although his
wallet was still on his person, most of the cash was missing. Investigators took samples from
Seino’s clothing, including a snippet from the left front jeans pocket and a snippet from the front
of the victim’s shirt, both of which had bloodstains. The DNA extracted from the jeans pocket

decide in the petitioner’s favor unless we supplant the SJC’s reasoning by adopting his view of conflicting evidence.
But here the record evidence can be interpreted to support a different version the court must reject such a request.)

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sample was a mixture that matched the DNA profiles of both the victim and Seino. The DNA
extracted from the bloodstain on the victim’s shirt matched only Seino’s profile.
The Trial
Seino’s Tetimony
Seino testified at trial and offered weak alibi evidence to demonstrate that he did not have
the opportunity to commit the crime. More specifically, he testified that he visited several bars in
succession after leaving the bar where the victim had been present. The SJC found, however, that
even taking Seino at his word, he could have done all that he claimed and still committed the
crime. Seino also suggested another individual committed the crime and speculated that blood
from a cut on his hand ended up on the victim’s clothing via incidental contact at the bar.
The Autopsy and Death Certificate Evidence.
Dr. Richard Evans, who did not perform the autopsy testified regarding the cause of the
victim’s death. In doing so, he referred to statements/conclusions in the autopsy report and the
death certificate, neither of which he authored.
Facts Surrounding Analysis of the DNA Evidence.
Red-brown stains found on the front left pocket of the victim’s jeans and on the front of
the victim’s shirt were determined to be bloodstains. A snippet of each item was prepared for
DNA analysis, and the resulting profiles were compared to Seino’s DNA profile. 3 The DNA
profile from the bloodstain on the jeans pocket was developed at a Cellmark Diagnostics
(“Cellmark”) laboratory in Maryland (“Cellmark–Maryland”). That laboratory’s former director,

3

In 2006, approximately four years after the murder, Seino pled guilty to attacking an individual with a
machete and was required to submit a sample of his DNA for the Combined DNA Index System database
(“CODIS”).

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Dr. Robin Cotton, testified that the DNA found on the jeans was a mixture of two profiles-- the
victim was one potential contributor to the DNA sample, and the second contributor was a man. 4
When Seino’s DNA became available (in 2006), an analyst from a Cellmark laboratory in Texas
(“Cellmark–Texas”), Matthew DuPont, compared the profile from the jeans sample to Seino’s
DNA profile and opined that Seino was the second contributor. Mr. DuPont also testified to the
statistical probability of such a match: one in 17.34 quadrillion of the African American
population, one in 1.854 quintillion of the Caucasian population, one in 1.753 quintillion of the
Southwest Hispanic population, and one in 2.475 quintillion of the Southeast Hispanic
population.
The sample from the victim’s shirt was processed by the MSP crime laboratory. A
representative from that laboratory, Laura Bryant, testified that Seino’s DNA profile matched the
profile from the bloodstain on the victim’s shirt. Ms. Bryant also testified to the probability of a
random match of the profiles of the DNA sampled from the victim’s shirt and the Seino’s DNA,
concluding that the likelihood of a random, unrelated person having a DNA profile that matched
the sample was about one in 1.79 quintillion of the Caucasian population, one in 16.74
quintillion of the African American population, and one in 2.375 quintillion for the Hispanic
population.

The SJC noted that the State’s police crime laboratory has a contract with Cellmark, a private DNAtesting laboratory, pursuant to which Cellmark provides forensic DNA-testing services. Cellmark has multiple
locations across the United States and contracts with several law enforcement agencies throughout the country. The
DNA evidence relating to the victim was processed and analyzed at the State police crime laboratory as well as in
two different Cellmark laboratories.
4

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The Contested Chalks.
Both Dr. Cotton and Ms. Bryant used charts to explain their conclusions to the
jury. The charts contained data generated by other analysts and showed the raw data generated
by the DNA tests: numbers or letters assigned to genetic locations and “spikes” from an
electropherogram. Dr. Cotton used two DNA charts, one for the jeans’ sample and one for the
victim’s profile. Referring to the charts, Dr. Cotton showed the jury where the genetic locations
from the jeans’ sample matched the genetic locations from the victim’s profile. In addition, Dr.
Cotton used data from an electropherogram to demonstrate to the jury how she had concluded
that a second man had contributed DNA to the jeans sample. For her part, Ms. Bryant guided the
jury through each step of the comparison, pointing out on the chart generated from the shirt
bloodstain the numbers that matched those on the chart generated from Seino’s DNA. In less
detail, she also described to the jury the results of several comparisons, referring each time to
tables from the report.
Discussion
Standard of Review
The standard of review for habeas corpus petitions brought by state prisoners is set forth
in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
Under the AEDPA:
a federal court may grant habeas relief if the state court adjudication “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.” This means we look to the Supreme Court’s holdings, as opposed to dicta,
at the time the state court rendered its decision, while employing the following
criteria.

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An adjudication will be contrary to clearly established law if the state
court ‘applies a rule that contradicts the governing law set forth’ by the Supreme
Court or ‘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.’”. On the other hand, a state court adjudication constitutes an
unreasonable application “if the state court identifies the correct governing legal
principle from the Supreme Court’s then-current decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” An “‘unreasonable
application of federal law is different from an incorrect application of federal
law,’” and a state court is afforded deference and latitude.
The second scenario justifying habeas relief is if the state court
adjudication led to “a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”
Though this means that a federal court will be taking a closer look at a state
court’s findings of fact, the fundamental principle of deference to those findings
still applies.
A “state court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of the
state court’s decision.”
Hensley v. Roden, 755 F.3d 724, 730-31 (1st Cir. 2014)(internal citations and citations to quoted
authorities omitted)(emphasis and alterations in original). In administering these standards, the
state court’s factual findings are presumed to be correct, and they can be overcome only by clear
and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Whether Petitioner is Entitled to Habeas Relief on Ground Two 5
Whether Petitioner’s Confrontation Clause Rights were Violated
In Ground Two of his Petition, Seino asserts that he is entitled to habeas relief because
his right to confront adverse witnesses against him under the Sixth Amendment was violated
when the trial court permitted Dr. Evans, Dr. Cotton, Mr. Dupont and Ms. Bryant to testify (over
his objection) to findings contained in the DNA testing report, the autopsy report and the death

5

The Court will address Petitioner’s stated grounds for relief out of order as the rulings on Grounds Two

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certificate which were made by other analysts/examiners who did not testify. More specifically,
Dr. Evans while testifying regarding the cause of the victim’s death referred to statements in the
autopsy report and death report— documents which he did not author. Moreover, Dr. Evans did
not perform the autopsy. Seino asserted before the SJC, and now before this Court, that allowing
Dr. Evans to so testify violated his right to confront witnesses against him as it amounted to him
reading testimonial hearsay statements into the record without him having the opportunity to
cross-examine the medical examiner who was the person who made the statements. Similarly,
Petitioner asserts that admission of Mr. Dupont’s opinion testimony that Petitioner’s DNA
profile matched the DNA profile of evidence recovered from the crime scene violated his
confrontation clause rights because Mr. Dupont did not develop either DNA profile, rather he
relied on DNA profiles developed by other analysts. As to Dr. Cotton and Ms. Bryant, the trial
court permitted them to testify using chalks to explain their findings to the jury— Seino contends
that the charts contained test results obtained or generated by other non-testifying analysts which
resulted in a violation of his confrontation rights.
The SJC found that it was error for Dr. Evans to testify to hearsay statements contained in
the autopsy report and death certificates. In doing so, the SJC correctly applied clearly
established Supreme Court precedent which provides that under the Sixth Amendment,
testimonial hearsay is not permitted at a criminal trial without the defendant having the
opportunity to cross-examine the declarant. 6 Seino had objected to Dr. Evans’s testimony
and Three will inform the Court’s ruling on his ineffective assistance of counsel claim asserted in Ground One.
6
The SJC cited to Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527 (2009) in which the
Supreme Court reiterated its holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 (2004). In
Melendez-Diaz, the Supreme Court overturned prior SJC precedent and Massachusetts statutory law which had
held/provided that post Crawford, authors of certificates of forensic analysis and the like were not subject to
confrontation under the Sixth Amendment. As will become relevant in this case, the Supreme Court did not address

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regarding the autopsy report and death certificate and thus, the issue was preserved. The SJC
then conducted a harmless error analysis “to determine whether [the error] was harmless beyond
a reasonable doubt.” See Seino, 479 Mass. at 467; 96 N.E.3d 149. Likewise, the SJC found it was
error for the Commonwealth to permit Dr. Cotton and Ms. Bryant to use charts which showed
data obtained by other experts to justify their conclusions as Seino did not have the opportunity
to cross-examine the analysts who obtained the results. However, Seino had not objected to the
use of such charts and therefore, the SJC reviewed the error under a “substantial miscarriage of
justice standard.” The SJC found that the erroneous admission of Dr. Evan’s testimony was
harmless beyond a reasonable doubt and Dr. Cotton’s and Ms. Bryant’s erroneous use of the
charts did not result in a substantial likelihood of a miscarriage of justice. Finally, the SJC found
that admission of Mr. Dupont’s opinion testimony comparing Seino’s DNA profile to the DNA
profile of evidence at the crime scene (blood stains on the victim’s clothing), which was based
on DNA profiles developed by other analysts, did not violate the confrontation clause. The Court
will now determine whether those findings were reasonable in accordance with the standards set
forth in the AEDPA.
Admission of Dr. Evan’s Testimony Regarding the Autopsy Report and Death Certificate
In determining whether the admission of hearsay testimony by Dr. Evans was harmless
beyond a reasonable doubt, the SJC, citing to Commonwealth v. Dagraca, 447 Mass. 546, 553,
854 N.E.2d 1249 (2006), applied the following standard:

whether the admission of certificates through a non-declarant witness in that case was harmless error, instead, the
Supreme Court remanded the case to Massachusetts Appeals Court to address that issue in the first instance.
Melendez-Diaz was decided before the conclusion of Petitioner’s trial.

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[1] the importance of the evidence in the prosecution’s case; [2] the relationship
between the evidence and the premise of the defense; [3] who introduced the issue
at trial; [4] the frequency of the reference; [5] whether the erroneously admitted
evidence was merely cumulative of properly admitted evidence; [6] the
availability or effect of curative instructions; and [7] the weight or quantum of
evidence of guilt.
Seino, 479 Mass. 463, 467–68, 96 N.E.3d 149. Thus, the SJC essentially applied the harmless
error standard set forth Chapman v. California, 386 U.S. 18, 87 S.Ct. 824(1967) (on direct
appellate review, an error at trial affecting the defendant’s constitutional rights will be deemed
harmless only if it can be shown to be harmless beyond a reasonable doubt) 7. The First Circuit
has noted that in light of the Supreme Court’s more recent ruling in Brecht v. Abrahamson, 507
U.S. 619, 113 S.Ct. 1710 (1993)(habeas petitioner must show that error “had substantial and
injurious effect or influence in determining the jury’s verdict), it is necessarily unreasonable for a
reviewing court applying Chapman “to conclude that the error was harmless beyond a reasonable
doubt if an error had a substantial and injurious effect on a jury’s verdict.” Faulk, 321 F. Supp.
3d 189, 195 (D. Mass. 2018)(internal quotation marks omitted)(citing to Connolly v. Roden, 752
F.3d 505, 511 (1st Cir. 2014).
The SJC noted that Dr. Evans had testified as to his own, independent opinion regarding
the cause of the victim’s death. Given that the erroneously admitted statements were cumulative
of Dr. Evan’s properly admitted opinion testimony, the SJC determined the “erroneously
admitted statements from the death certificate and the autopsy report were of little, if any,
consequence.” Seino, 479 Mass. at 468, 96 N.E.3d 149. Moreover, other improperly admitted
statements from the autopsy report, such as the length of the laceration on the victim’s head,

The SJC cited to Massachusetts case law, however, the First Circuit has recognized that the state court
standard is analogous to the federal standard set forth in Crawford. See Connolly v. Roden, 752 F.3d 505 (1st Cir.
7

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were irrelevant to whether Seino was the attacker, did not implicate him and did not detract from
his defense that he did not commit the crime. Accordingly, the SJC found that the erroneous
admission of such evidence “did not contribute to the guilty verdicts.” Id.
The Court finds that Dr. Evan’s testimony regarding statements made by non-declarants
in the autopsy report and death certificate concerning the cause of death, while improperly
admitted, were cumulative of properly admitted evidence (his own direct testimony) and the
remaining statements were irrelevant and did not undermine Seino’s defense. 8 Consequently, the
Seino cannot establish substantial and injurious effect on the jury’s verdict and habeas relief
must be denied.
Admission of Testimony by Dr. Cotton and Ms. Bryant based on Information of Non-Testifying
Declarants Contained in Chalks
First, as noted by the Respondent, the SJC found that this issue was not preserved and,
therefore, addressed the court addressed it under the substantial likelihood of a miscarriage of
justice standard. The court found that there was no substantial likelihood of a miscarriage of
justice given that:
The charts did not taint the analysts’ independent opinions, which … were
properly admitted. The expert’s opinions were what mattered to the jury, who
likely would have found the raw data incomprehensible without the
accompanying expert testimony. … Because the findings contained in the charts
‘had no meaningful probative value without [the] expert[s’ testimony the

2014).

The First Circuit has held that where the state court applying the Chapman standard found that a
constitutional error was harmless, a federal court may, in accordance with Mitchell v. Esparza, 540 U.S. 12, 18-19,
124 S.Ct. 7 (1003), review that decision under the AEDPA standard for a determination of whether the state court’s
decision was a reasonable application of Chapman. If the answer is yes, then the petitioner is not entitled to habeas
relief. If the answer is no, then the federal court must apply the Brecht standard to determine whether the error was
harmless. In the alternative, because the Brecht standard is harder to satisfy, the federal court may simply apply the
Brecht test directly. See Connolly, 752 F.3d at 510-511. This Court has adopted the latter approach.
8

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erroneous admission of these underlying facts in evidence did not result in a
substantial likelihood of miscarriage of justice.
Seino, 479 Mass. at 471, 96 N.E. 3d 149.
I agree with Respondent that Petitioner waived state court review of this claim by failing
to raise a timely objection at trial. Because this claim was defaulted “pursuant to an independent
and adequate state procedural rule, federal habeas review is barred unless [Petitioner] can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 732, 750 111 S.Ct. 2546
(1991)(when petitioner fails to raise his federal claims in compliance with relevant state
procedural rules state court’s refusal to adjudicate claim ordinarily qualifies as an independent
and adequate state ground for denying federal review). The Massachusetts contemporaneous
objection rule is regularly and consistently enforced by the state courts and therefore, is an
adequate and independent state ground precluding federal habeas review. See Hodge v.
Mendonsa, 739 F.3d 34, 44 (1st Cir. 2013)( “We have held, with a regularity bordering on the
monotonous, that the Massachusetts requirement for contemporaneous objections is an
independent and adequate state procedural ground, firmly established in the state’s jurisprudence
and regularly followed in its courts.”). 9

9
Federal habeas review may also be appropriate where the SJC has excused the waiver and addressed the
claim on its merits. However, the SJC, after finding that this claim was not preserved due to Petitioner’s failure to
make a timely objection, conducted only a limited review to determine whether denial of the claim would constitute
a substantial likelihood of a miscarriage of justice. The First Circuit has held that a state court’s review of a
procedurally defaulted claim under a “substantial likelihood of a miscarriage of justice standard” does not constitute
a waiver of the default by the reviewing court. Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010).

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“To excuse a procedural default a petitioner’s cause must relate to an objective factor,
external to the defense, that thwarted (or at least substantially obstructed) the efforts of the
defendant or his counsel to obey the state’s procedural rule. Mere attorney error, not amounting
to ineffective assistance in a constitutionally significant sense, is insufficient to constitute cause.”
Burks v. Dubois, 55 F.3d 712, 716-17 (1st Cir. 1995). Reviewing the record, there is no apparent
impediment which precluded Seino’s counsel from timely objecting to the experts’ use of the
charts on the grounds that the data reflected therein was compiled by non-testifying declarants.
Therefore, there was no “cause.” Seino has brought an ineffective assistance of counsel claim.
Even if the Court were to assume that counsel’s failure to object to the use of the charts rendered
her performance substandard, Petitioner would still have to establish prejudice. However, Seino
“cannot meet the high burden of showing actual prejudice. To scale this wall, a petitioner must
demonstrate ‘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
constitutional dimensions.’ ” Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994) (quoting United
States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596 (1982)). In this case, Seino failed to “
‘convince [the court] that there is reasonable probability that the result of the trial would have
been different’ absent the error.” Prou v. United States, 199 F.3d37, 40 (1st Cir. 1999)(quoting
Strickler, 527 U.S. at 289, 119 S.Ct. 1936)). On the contrary, as found by the SJC, the
information contained in the charts was meaningless to the jury. It was the experts’ independent
analysis of the data which mattered, and that testimony was admissible. Accordingly, I find that
Seino has failed to establish that he was actually prejudiced by the experts’ use of the chalks and
his habeas claim on this ground is denied.

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Admission of Mr. Dupont’s Testimony Regarding DNA Comparison
At trial, Petitioner objected to Mr. Dupont (who was based at Cellmark-Texas) testifying
based on a DNA profile developed by an analyst from Cellmark-Maryland that Seino’s DNA
matched that of DNA from the crime scene. The SJC found no error because Kristin Sullivan, the
analyst from the MSP crime lab who developed Seino’s DNA profile from a known sample, and
Dr. Cotton, the supervisor from Cellmark-Maryland where the DNA profile from the crime scene
was developed, both testified and were available for cross-examination. Mr. Dupont compared
the two profiles and gave his own independent opinion regarding the statistical analysis and
whether the DNA profiles matched. Therefore, there was no Crawford violation. The SJC also
found that Petitioner’s challenge to the admission of Mr. Dupont’s testimony relying on the
testimony of Ms. Bryant and Dr. Cotton failed because their testimony was properly admitted.
In support of his claim that Mr. Dupont’s testimony, which relied on results obtained by
other analysts, violated his rights under the confrontation clause, Petitioner cited to
Commonwealth v. Tassone, 468 Mass. 391, 11 N.E.3d 67 (2014), in which the SJC held that it
was error under Massachusetts common law to admit the testimony of a MSP analyst that the
DNA profile of a sample taken from the defendant matched the DNA profile of evidence taken
from the crime scene where both DNA profiles had been developed by other analysts who did
not testify. 10 In making its determination, the SJC first discussed the Supreme Court’s opinion in

10
In his brief to the SJC, Petitioner asserted that in Tassone, the court held that the defendant’s
confrontation clause rights had been violated when the expert testified that the defendant’s DNA profile matched the
DNA profile of evidence taken from the crime scene despite not having developed either DNA profile. As discussed
infra, in actuality, the SJC held that admission of such testimony violated Massachusetts common law (the SJC
applied Massachusetts common law rather than attempt to resolve what it deemed an open question under Supreme
Court precedent as to the application of the confrontation clause in such circumstances). Nonetheless, it was clear
that Petitioner was arguing to the SJC that his Sixth Amendment confrontation clause rights had been violated.
Therefore, the Court finds that Petitioner presented the federal nature of this claim to the SJC. Respondent has not

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Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221 (2012), in which a plurality held that it was not
a violation of the defendant’s confrontation clause rights to permit an expert to testify that a
DNA profile she developed from a known blood sample of the defendant matched that of the
DNA profile of evidence from the crime scene even though the prosecutor had not called as a
witness either the analyst who had developed the DNA profile from the crime scene, or someone
who knew the procedures and protocols of the laboratory where such DNA profile had been
developed. The Massachusetts Appeals Court held that under White, Tassone’s confrontation
clause rights had not been violated. See Commonwealth v. Tassone, 83 Mass.App.Ct. 197 (2013).
The SJC reversed noting that in White the defendant had received a bench trial, while Tassone
had been tried before a jury. The court determined that the plurality opinion in White left open
the question of whether there could have been a confrontation clause violation if Ms. White had
been tried before a jury and without a detailed limiting instruction. The SJC found that it need
not resolve the federal constitutional question because under the circumstances described,
admission of the expert’s opinion testimony violated Tassone’s rights under Massachusetts
common law. See generally, Tassone, 468 Mass. 391, 11 N.E.3d 67.
In finding that there was no confrontation clause violation in Petitioner’s case, the SJC
distinguished Tassone on the grounds that both the analyst who had developed Petitioner’s DNA
profile and an analyst familiar with the protocols and procedures of the laboratory that had
developed the DNA profile from the crime scene (Cellmark-Maryland) had testified and were
subject to cross-examination. In so holding, the SJC necessarily found that Mr. Dupont’s
reliance on the DNA profiles developed by other analysts did not violate Massachusetts common
asserted otherwise.

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law. That being the case, it can be inferred that the SJC, aware of the ruling in White, also
necessarily determined that application of the plurality ruling mandated a finding that admission
of Mr. Dupont’s testimony did not violate Petitioner’s rights under the confrontation clause. The
Court finds that the SJC’s decision was not contrary to clearly established Supreme Court
precedent and therefore, federal habeas relief on this ground is denied. Moreover, even upon de
novo review, the Court would find that applying White, Petitioner’s confrontation clause rights
were not violated.
Whether Petitioner is Entitled to Relief on Ground Three
In Ground Three, Petitioner asserts that his Due Process rights were violated when the
Commonwealth failed to turn exculpatory evidence over to him as required under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). 11 More specifically, he contends that: (i) the
Commonwealth failed to preserve handwritten notes prepared by a MSP investigator, and a
photograph of his injured right hand taken by the QPD; and (ii) the QPD intentionally suppressed
evidence regarding the appearance of the crime scene, and withheld video footage of the crime
scene and evidence that it had been contaminated. As to the former, Petitioner contends that the
MSP investigator destroyed his notes in contravention of MSP policy and that QPD lost the
photograph of his injured hand. As to the latter, Petitioner contends pictures of the crime scene
were inaccurate and that members of the QPD altered the crime scene, including by moving the
victim’s body.
Although in his Petition and supporting documentation Petitioner references the Fourth Amendment, his
arguments to this Court are similar to those he made to the SJC in support of his claim that actions by the
Commonwealth and law enforcement violated his Fourteenth Amendment Due Process rights. As noted by the
Respondent, because Petitioner did not raise a Fourth Amendment claim to the SJC, any such claim to this Court
would be subject to dismissal as unexhausted. However, given that Petitioner is proceeding pro se, I will presume
that his reference to the Fourth Amendment is inadvertent and that he is pursuing the same Due Process claims that
11

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Whether Petitioner’s Due Process Rights were Violated because the Investigator’s Notes and
Photograph were not Available for Trial
As to Petitioner’s claims that the Commonwealth violated his due process rights by
failing to preserve investigator notes and a photograph of his injured hand, the SJC noted that the
burden first rested with Seino to establish “ ‘a reasonable probability, based on concrete
evidence,’ that the evidence was exculpatory.’ ” Seino, 479 Mass. at 477, 96 N.E.3d 149 (quoting
Commonwealth v. Williams, 455 Mass. 706, 718, 919 N.E.2d 685 (2010)(citation to quoted case
omitted)). In Williams, the SJC set forth the applicable standard to be applied when a defendant
contends that he was denied a right to a fair trial by the Commonwealth’s loss or destruction of
evidence.
When a defendant makes a claim that the government has lost or destroyed
potentially exculpatory evidence, it makes sense that he or she should bear the
initial burden of demonstrating the exculpatory nature of that evidence, using the
… “reasonable possibility, based on concrete evidence” formulation . …
[T]herefore, …the defendant will be required to meet this threshold burden in
order to advance a claim for relief. If the defendant does meet the burden, then …
the judge, or the court on appeal, must proceed to balance the Commonwealth’s
culpability, the materiality of the evidence, and the prejudice to the defendant in
order to determine whether the defendant is entitled to relief. If the defendant
does not establish as a threshold matter that the evidence at issue is possibly
exculpatory … there is no need to engage in this balancing test.
Williams, 455 Mass. at 718, 919 N.E.2d 685 (2010)(internal citations and internal footnote
omitted). 12

he brought before the SJC.
12
The SJC found that Petitioner had not established that the notes and photograph had been destroyed in
bad faith or recklessly and therefore, he could not invoke the more defendant friendly analysis that would require the
Commonwealth to show that “ ‘the lost or destroyed evidence was not potentially exculpatory.’” Seino, 479 Mass at
477 n. 21, 96 N.E.3d 149 (citation to quoted case omitted). Moreover, the SJC found that the notes were destroyed
in the ordinary course of business “well before the defendant came a suspect.” Id, at 477 n. 22, 96 N.E.3d 149.
While Petitioner asserts that MSP investigator destroyed his notes in contravention of department policy, he has not
proffered any evidence to rebut the SJC’s finding. Therefore, the question before the Court is whether, assuming no
bad faith on the part of the Commonwealth, the SJC’s holding violated the standards of the AEDPA.

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Petitioner argues that the destruction of the MSP investigator’s handwritten notes and the
loss of the photograph of his injured violated his rights under Brady. However, Brady applies
where the government has allegedly failed to disclose exculpatory evidence that is within its
custody and control. The Supreme Court has articulated test to be applied where the government
has lost or destroyed evidence which a defendant asserts is material to his guilt or punishment.
“A due process violation may be found where the government destroys evidence. However, the
evidence must ‘both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.’ Although a due process violation occurs
whenever material exculpatory evidence is withheld, ‘a different violation [ensues] when we deal
with the failure of the State to preserve evidentiary material of which no more can be said than
that it could have … exonerated the defendant[.]’ Failure to preserve this preserve this
‘potentially useful evidence’ only violates due process if the defendant can show bad faith.”
Clemente v. O’Brien, 2015 WL 1475931. Civ. Act. Nos. 10-10279-GAO, 10-10282-GAO (Mar.
31, 2015)(internal citations omitted)(quoting Arizona v. Youngblood, 488 U.S. 51, 57, 58, 109
S.Ct. 333 (1988) and California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528 (1984)).
While the standard articulated by the SJC differs slightly from that required under
Supreme Court precent, the SJC’s analysis of the issue appears to meet the federal standard.
Nonetheless, the Court will review this issue de novo. Petitioner makes conclusory allegations
that the inability of the Commonwealth to provide him with the investigator’s handwritten notes
and the photograph of his injured right hand deprived him of evidence material to his defense.
However, he does not specify how such evidence would have been used to aid his defense does

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not establish that he could not have obtained comparable evidence, and more importantly, does
he establish the exculpatory value of such evidence. At best, his argument can be interpreted as
suggesting that such evidence could have possibly had exculpatory value. Under established
Supreme Court precedent, he must therefore show that the Commonwealth acted in bad faith.
Because he has failed to due so, see supra note 12, he cannot establish a due process violation. 13
Whether Petitioner’s Due Process Rights were Violated When the Commonwealth failed to
Disclose that the Police had Contaminated the Crime Scene
Petitioner contends that the Commonwealth violated his due process rights by failing to
disclose that the QPD had contaminated the crime scene, had moved the victim’s body, and had
provided inaccurate pictures of the crime scene. Petitioner also contends that Commonwealth
withheld television footage that was favorable to his defense. Petitioner’s claims raise a
straightforward Brady violation, however, the SJC did not find it necessary to engage in
Brady analysis having found that “[t]here [wa] no basis in the evidence that the police altered the
crime scene or moved the victim’s body … . Nor [was] there evidence, beyond defendant’s bald
assertion, that pictures in the crime scene were inaccurate due to renovations. Finally, the
defendant presented no evidence of illegal surveillance …. .” Seino, 479 Mass. at 478, 96 N.E.3d

13
As to whether the handwritten notes and photograph had any exculpatory value, the Court notes that the
SJC found that Petitioner had failed to establish how the handwritten notes would have differed from the police
report that was generated therefrom or how they would otherwise have been exculpatory. Additionally, he was able
to cross-examine the investigator about his notes and the police report and any possible discrepancies between the
two. As to the photograph, the SJC found that in the first instance, Petitioner had filed to establish that such
photograph ever existed. Even assuming a photograph had existed, the SJC found that Petitioner had failed to
establish that it would have aided in his defense or otherwise been exculpatory as the undisputed testimony at trial,
including testimony from two witnesses, was that he had an injured hand. See Seino, 479 Mass at 476-77, 96 N.E.3d
149. Petitioner has made no attempt to rebut the SJC’s findings.

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149. These findings, which Petitioner has not rebutted, are fatal to his Brady claim. Accordingly,
he is not entitled to habeas relief on Ground Three. 14
Whether Petitioner is Entitled to Habeas Relief on Ground One
Seino asserts that he received ineffective assistance of counsel in violation of the Sixth
Amendment on the grounds that the following errors by his counsel rendered her performance
objectively unreasonable and he was prejudiced thereby: (1) counsel failed to properly utilize the
experts that had been retained in the fields of DNA, blood spatter and pathology, including
among other claims, that she waived presence of a defense expert at DNA testing and failed to
present expert testimony on his behalf; (2) counsel failed to timely contact potential alibi
witnesses for which he had provided her names and contact information with the result that none
could be located at the time of trial; (3) counsel erred by stipulating that law enforcement had
been diligent in pursuing the case; and (4) counsel failed to challenge DNA evidence based on
the ongoing disfunction and mishandling of DNA evidence at the MSP crime laboratory.
To establish that his Sixth Amendment right to effective assistance of counsel was
violated, petitioner must establish that counsel’s performance was objectively unreasonable, and
prejudice, i.e., that there exists “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v. Washington, 466
U.S. 668, 694, 104 S.Ct. 2052 (1984). In concluding that Petitioner did not receive ineffective
assistance of counsel, the SJC evaluated his claims under the “miscarriage of justice standard”
set forth in the Mass.Gen.L. ch. 278, §33E rather than the traditional standard of Commonwealth

As noted by the Respondent, Petitioner’s claim regarding illegal surveillance is waived as he failed to
address it in his legal argument.
14

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v Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974). 15 Under this more favorable standard, the
court “determine[s] whether defense counsel erred in the course of the trial and if so, whether
‘whether that error was likely to have influenced the jury’s conclusion.’ ” Seino, 479 Mass. at
472 , 96 N.E.2d 149. Because the SJC applied a standard that was more favorable to the
Petitioner than Strickland, the Court will review its decision under the AEDPA’s deferential
standard. See Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)( where the SJC applies its more
favorable “substantial likelihood of a miscarriage of justice” standard, its decision will not be
deemed to be “contrary to” the Strickland criterion).
Counsel’s Failure to Properly Utilize Experts on Petitioner’s Behalf
Petitioner contends that trial counsel was ineffective for failing to have an expert present
at the crime laboratory to observe DNA testing (because the testing exhausted the entirety of the
DNA sample. it could not thereafter be tested independently by Seino’s expert). The SJC found
that Petitioner had failed to establish harm 16 because contrary to Petitioner’s contention, not all
of the DNA samples had been exhausted and those that were did not match his DNA profile. The
DNA which matched his blood profile, taken from the blood stain from the victim’s shirt, was
not exhausted and could have been tested by Petitioner’s expert. On this record, Petitioner cannot
establish prejudice as the result of counsel’s failure to have an expert present for the testing and

The SJC did so because Seino had been convicted of first-degree murder and the miscarriage of justice
standard set forth in Chapter 278, §33E would be more favorable to him than the Saferian standard, which is
equivalent to the Strickland Standard. See Strickland v. Goguen, 3 F.4th 45, 54 n. 14 (1st Cir. 2021).
15

Although the SJC did not find it necessary to determine whether counsel’s performance on this issue was
substandard, it noted that the expert she had hired to attend the testing passed away before it could be performed. In
thereafter waiving the presence of an expert, counsel considered that Seino had already been in prison awaiting trial
for over a year and there was an expectation that the results of the testing would be favorable to him. Additionally,
the laboratory was experiencing lengthy delays which likely would have pushed the testing far out into the future.
Under these circumstances, the SJC found that counsel’s decision was tactical and therefore, not manifestly
16

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therefore, the SJC’s determination to that effect was not contrary to or an unreasonable
application of the Strickland prejudice standard.
Petitioner also claims that counsel was ineffective for failing to call as witnesses
pathology and blood splatter experts that had been retained in preparation for trial. The SJC
noted that Petitioner asserted that the pathologist could have offered a different theory on the
victim’s cause of death, however, he did not present any such theory to the court. As to the
blood spatter expert, Petitioner asserted that the expert could have explained that the transfer of
blood to the victim’s shirt could have resulted from his injured hand brushing up against the
victim as they passed each other in the bar. However, Petitioner did not submit an affidavit or
other evidence to support this theory. Moreover, counsel had utilized the experts to evaluate the
Commonwealth’s evidence and prepare her cross-examination. The SJC noted that counsel
effectively cross-examined the Commonwealth’s experts and undermined the Commonwealth’s
theory on cause of death and elicited evidence to support Petitioner’s theory as to how the blood
was transferred to the victim’s shirt. Having found that Petitioner had not established that the
experts’ testimony would have assisted his defense and that counsel had utilized them to
effectively cross-examine the Commonwealth’s experts, the SJC held that Petitioner had failed to
establish that counsel was ineffective. The SJC’s finding that Petitioner had failed to establish
that counsel’s performance was deficient was not contrary to or an unreasonable application of
the Strickland standard.

unreasonable. This Court concurs and would find that this was a tactical decision by counsel which is virtually
unchallengeable.

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Counsel’s failure to Timely Contact Potential Alibi Witnesses
Petitioner contends that upon counsel being engaged to represent him, he provided her
with a list of witnesses that could have corroborated his alibi, but she failed to contact them in a
timely manner and at the time the trial commenced, they could not be located. The SJC noted
that counsel provided a sworn statement in which she denied Petitioner had provided her a list of
witnesses. Assuming that he had, the SJC found for the following reasons that Petitioner was not
prejudiced by the absence of said witnesses. First, Petitioner took the stand and testified as to his
movements the night of the murder. However, the Commonwealth established that even had
Petitioner done everything he claimed, he would still have had the opportunity to commit the
murder. The SJC also noted out that Petitioner did not provide the court with the names of the
alleged alibi witnesses or how their testimony would have been exculpatory given that his own
testimony as to his whereabouts did not preclude the possibility that he committed the crime. The
SJC’s finding that on this record the Petitioner could not establish he was prejudiced by the
absence of alibi witnesses comports with and is a reasonable application of Strickland’s
prejudice standard.
Whether Counsel erred by stipulating that Law Enforcement Diligently Pursued the Case:
Counsel’s Failure to Challenge DNA Evidence based on the Ongoing Disfunction and
Mishandling of DNA Evidence at the Crime Laboratory
Little discussion is warranted on Petitioner’s claim that counsel was ineffective for
stipulating that law enforcement was diligent in pursuing the case despite not arresting him until
four years after the murder, particularly because evidence had been lost or destroyed during this
delay. Petitioner became a focus of the police investigation a few years after the murder when
his DNA sample became available on CODIS as are result of his conviction for an unrelated

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crime involving an assault with a machete. The Commonwealth intended to explain the lengthy
delay to the jury by establishing that the police did not focus on Petitioner until his DNA sample
became available on CODIS. Rather than have the jury speculate as to why Petitioner’s DNA
sample became available on CODIS or face the possibility that the nature of the conviction
would be made known to the jury, counsel stipulated that the police had diligently investigated
the case. In return, the Commonwealth agreed not to reference CODIS. Petitioner also asserts
that counsel was ineffective for failing to elicit evidence regarding the dy+sfunction and
mismanagement of the CODIS administration of the State crime laboratory (to cast doubt on the
reliability of the laboratory’s testing procedures and results). However, counsel having made the
decision that it was in Petitioner’s “best interest for the jury not to hear about CODIS to the jury
… necessarily meant that she would not be able to elicit testimony regarding the alleged
mismanagement” and malfunction of the MSP crime lab’s administration of CODIS. The SJC
that counsel’s decision was a reasonable tactical choice and therefore. Not ineffective assistance
of counsel. Reasonable tactical choices, such as the one made my Petitioner’s counsel, are
virtually unchallengeable and preclude a finding that her conduct violated the Strickland
standard. Accordingly, the SJC’s determination did not violate the AEDPA standard.
Conclusion
For the foregoing reasons, the Petition Under 28 U.S.C. § 2254 For Writ OF Habeas
Corpus By A Person In State Custody (Docket No.1), is denied.
Certificate of Appealability
The statute governing appeals of final orders in habeas corpus proceedings provides that
an appeal is not permitted “[u]nless a circuit justice or judge issues a certificate of appealability.”

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28 U.S.C. § 2253(c)(1). A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
“substantial showing,” a petitioner must demonstrate that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595 (2000) (internal quotation marks omitted). This is a low bar; a
claim can be considered “debatable” even if every reasonable jurist would agree that the
petitioner will not prevail. Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029 (2003). In
ruling on an application for a certificate of appealability, a district court must indicate which
specific issues satisfy the “substantial showing” standard. 28 U.S.C. § 2253(c)(3).
I deny the certificate of appealability with respect to all of Petitioner claims as I have
found such claims to be procedurally defaulted or that the SJC’s determination of no error was
not contrary to or an unreasonable application of Supreme Court precedent. Under the
circumstances, I do not find that reasonable jurists could debate whether these claims were
adequately addressed by the Court, nor are the issues presented adequate to deserve
encouragement to proceed further. Therefore, a certificate of appealability is denied.
So Ordered.
/s/ Timothy S. Hillman
TIMOTHY HILLMAN
SENIOR DISTRICT JUDGE

27