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Jackson v. Marshall

United States Court of Appeals, First Circuit

July 19, 2017

DAVID JACKSON, Petitioner, Appellant,
JOHN MARSHALL, Respondent, Appellee.


          Alan J. Black for appellant.

          Susanne G. Reardon, Assistant Attorney General, Criminal Bureau, Appeals Division, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         David Jackson was convicted of first degree murder in Massachusetts Superior Court. The Massachusetts Supreme Judicial Court ("SJC") affirmed his conviction and rejected his collateral challenges. In turn, the United States District Court for the District of Massachusetts denied his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Jackson now appeals, reasserting that his trial was unconstitutionally unfair because the Commonwealth failed to turn over what he views as undisputable evidence that the Commonwealth's chief witness was given inducements in exchange for favorable testimony and because the Commonwealth suborned the witness's perjurious testimony to the contrary. For the following reasons, we find that Jackson has failed to meet the burden imposed on him under § 2254. We therefore affirm.

         I. Background[1]

         Jackson's conviction arose out of a robbery and fatal shooting that occurred in April 1990 in an apartment complex in Boston. No physical evidence tied Jackson to the crime. But three months after the crime was perpetrated, the Commonwealth's chief witness, Steven Olbinsky, gave two statements describing the event to the police. In those statements, and then almost three years later at trial, he reported that on the night of the crime, a man named Mark James asked him where to go to purchase drugs; that Olbinsky led James, Jackson, and another unidentified man to the apartment complex; that Jackson drew a shotgun from his vehicle; that Jackson then asked which of the units in the building was the drug dealer's residence; that Olbinsky told Jackson the wrong unit because Olbinsky was frightened; and that Olbinsky departed the scene as Jackson, wearing a trench coat and wielding the weapon, approached the building with James.[2] No one else specifically placed Jackson at the scene of the crime. Other witnesses, though, testified that two men, one in a mask and long jacket and carrying a shotgun, broke into the unit to which Olbinsky had directed Jackson, and were redirected by occupants of that unit to the unit of a known drug dealer. See Commonwealth v. Jackson (Jackson I), 702 N.E.2d 1158, 1160-61 (Mass. 1998). The two men then broke into the latter unit, where one of them fired the shotgun, killing an inhabitant. Another witness testified that later that evening, Jackson and James arrived at another apartment. Jackson was described as wearing a long jacket and carrying a shotgun, jewelry, money, and cocaine. The witness testified that Jackson disclosed that he and James had committed a robbery, and that the shotgun discharged accidentally as they were leaving. Id. at 1161.

         At trial, the prosecutor stated that "the Commonwealth . . . is offering nothing to Mr. Olbinsky for his testimony. There's been no rewards, there's been no promises, there's been no inducements, no offers for his testimony. If there were, you'd know about it." Olbinsky also testified that he did not receive any inducements for his testimony. See id. In closing argument, in response to Jackson's counsel's suggestion that it was unlikely that Olbinsky was testifying without some kind of quid pro quo, the prosecutor countered by saying that Olbinsky, who had in fact been indicted with Jackson on one count of first degree murder, was "on trial" for the same offense. The prosecutor told the jury, "I've got the case and if he got a deal, you would have known about it. Let me repeat that. You would have known about it."

         As Jackson knew, however, Olbinsky was not literally "on trial."[3] In fact, his case never left the starting gate. Instead, after Olbinsky's attorney filed a motion to dismiss the indictment for lack of sufficient evidence, the trial court continued his case seven separate times. The Commonwealth never opposed Olbinsky's motion to dismiss the indictment, and two weeks after Jackson's trial concluded, the motion was granted.

         Convicted on April 16, 1993, Jackson was sentenced to life in prison. He took a direct appeal to the SJC and moved for a new trial pursuant to Rule 30 of the Massachusetts Rules of Criminal Procedure. Among other things, he argued that "the prosecutor impermissibly bolstered the credibility" of Olbinsky "by misrepresenting to the jury that no deal had been made in exchange for Olbinsky's testimony." Id. This claim was "actually two separate claims, " first, "that the prosecutor stated that no inducement had been offered for Olbinsky's testimony and that this was false, " and second, "that the prosecutor concealed the fact that the Commonwealth did not intend to prosecute Olbinsky." Id. As to the first claim, the SJC found there was insufficient evidence to find the prosecutor's statement false. Id. As to the second, the SJC found that "even if true, [concealing that the Commonwealth did not intend to prosecute Olbinsky] would not have served to bolster [his] credibility." Id. Finding none of Jackson's arguments convincing, the SJC affirmed his conviction and sentence and declined to grant collateral relief. Id. at 1166- 67.

         Jackson unsuccessfully pursued a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts in 1999. In 2002, he filed a second Rule 30 motion in state court. In this motion, he claimed to have discovered new evidence that Olbinsky testified subject to inducements. The new evidence consisted of a bail agreement between the Commonwealth and Olbinsky, which Jackson said he did not know existed until he made a public records request in July 2002. The agreement, entered on the public docket in Olbinsky's case almost a year before Jackson was tried, provided that Olbinsky would be subject to electronic monitoring and a curfew while out on bail, which Olbinsky had posted three weeks prior, once the trial judge in his case reduced his bail from $25, 000 to $5000 cash.

         Jackson's motion was denied, and a single justice of the SJC denied leave to appeal that denial on October 23, 2003. See Mass. Gen. Laws ch. 278, § 33E. In the denial, the gatekeeper justice noted that the bail agreement to which Jackson referred was readily available long before his trial; the agreement merely provided for electronic monitoring; it did not "shed[] light on what convinced the judge to reduce Olbinsky's bail" or "what position the prosecutor took on that issue at that time"; and it contained "nothing to suggest that [Olbinsky] had anything to fear in connection with the terms of his bail that would have caused him to testify in a manner to please the prosecutor." In any event, said the gatekeeper justice, "defendant's suggestion that better impeachment of Olbinsky would have accomplished something meaningful for the defense [was] unpersuasive" because Olbinsky's trial testimony matched statements he gave to police shortly after the crime was committed and long before his arrest, and because it was corroborated by other testimonial evidence.

         In May 2004, Jackson moved pursuant to Federal Rule of Civil Procedure 60 for relief from the judgment denying his habeas petition. In this motion, Jackson pointed to the bail agreement as evidence that Olbinsky was incentivized to testify falsely against him. Jackson also claimed that "documents from a criminal trial of Mr. Olbinsky in Oregon suggest[ed] that Mr. Olbinsky's arrest in Massachusetts in connection with [Jackson's] state court trial was intended to lead to an implicit agreement between Mr. Olbinsky and the prosecutor." The district court found that Jackson "potentially [had] a meritorious claim and that the government's alleged hiding of this evidence, if true, would constitute extraordinary circumstances beyond the petitioner's control." Jackson was therefore granted leave under Rule 60(b)(6) to move for an evidentiary hearing.

         In his subsequent motion for an evidentiary hearing, Jackson explained the Oregon evidence. Apparently, Olbinsky absconded to Oregon a few months after the shooting. On March 13, 1992, he was indicted with Jackson on a charge of first degree murder. Oregon police arrested Olbinsky pursuant to the Massachusetts warrant, and he was extradited to Massachusetts on April 16, 1992. Searching his home in an unrelated drug investigation, Oregon police found a quarter-pound of methamphetamine, and Olbinsky was indicted on drug charges in Oregon on June 23, 1992. An Oregon warrant for his arrest issued and he was charged with two counts of manufacturing or delivering methamphetamine (a Class B felony under Oregon law) and one count of possession of methamphetamine (a Class C felony). Olbinsky entered into the bail agreement with Massachusetts prosecutors that same day, and his attorney filed the motion to dismiss his murder indictment for lack of evidence.

         Three days later, at the urging of an assistant district attorney in Massachusetts, an Oregon prosecutor requested Olbinsky's Oregon arrest warrant be recalled. The Oregon prosecutor's notes stated that "we're trying to work [with] prosecutors in Boston to treat [Olbinsky] nicely, as he's a material witness in a murder case there." In a tape-recorded proceeding in Oregon, a prosecutor stated: "Because of the Massachusetts prosecutor's need to have this defendant as a witness in the homicide case, we had agreed to have the defendant released, take off our warrant on this offense so that this defendant could be released from custody back in Massachusetts." In June 1996, long after Jackson was tried and ...

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