United States Court of Appeals For the First Circuit

No. 21-1899

MAC HUDSON,

Petitioner, Appellant,

v.

SHEILA KELLY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

Alan D. Campbell for appellant. Eva M. Badway, Assistant Attorney General of Massachusetts, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellee.

March 5, 2024 BARRON, Chief Judge. Mac Hudson appeals from the

District Court's denial of his petition for a writ of habeas corpus

challenging his 1997 Massachusetts state-law convictions for,

among other things, second-degree murder. We affirm.

I.

A.

In 1990, Hudson and Charles Hughes were tried together

in Massachusetts Superior Court for charges relating to the April

22, 1989 shootings of Derek Twitty and Mark Jones while they were

selling heroin in Boston, Massachusetts.1 Twitty died from his

injuries, while Jones survived. The charges were for first-degree

murder, assault and battery by means of a dangerous weapon, assault

with intent to murder, assault with intent to rob, and unlawful

possession of a firearm. Hudson and Hughes were found guilty of

the lesser-included offense of second-degree murder and the other

charged offenses. Commonwealth v. Hudson,

,

, at *1 (Mass. App. Ct. 2015) (unpublished table decision).

The Massachusetts Appeals Court ("MAC") later reversed those

convictions for reasons not relevant here and remanded the case

1We recount the facts of the case as they were found in the last reasoned decision by a state court -- here, the Massachusetts Appeals Court's decision in Commonwealth v. Hudson,

,

(Mass. App. Ct. 2015) (unpublished table decision), review denied,

(Mass. 2015) -- "supplemented with other facts from the record that are consistent" with the MAC's findings, Lynch v. Ficco,

(1st Cir. 2006). - 2 - for a new trial. See Commonwealth v. Hudson,

(Mass.

App. Ct. 1994) (unpublished table decision).

Hudson and Hughes were tried for the second time in 1997

in connection with the shootings of Twitty and Jones. Hudson,

, at *1. Hudson's resulting convictions are the

subject of the federal habeas petition before us here.

At the start of jury empanelment for this second trial,

Hudson was informed by the trial judge that sixteen jurors would

be seated and that he would have sixteen peremptory challenges.

See Commonwealth v. Hudson,

,

, at

*1 (Mass App. Ct. 2000) (unpublished table decision).

Toward the end of the third day of jury selection, by

which point fifteen jurors had been seated, the trial judge

commented about trying to seat the sixteenth juror by stating

"[w]e're going to try one more, and after that I quit." After

another juror was interviewed and excused for cause, the trial

judge announced that the proceedings would go forward with only

fifteen jurors. At this point, Hudson had exercised only eleven

of his sixteen allotted peremptory challenges, and counsel

objected, stating that he had been saving his challenges to use on

a "perfect [sixteenth] juror." The trial judge noted the objection

yet proceeded to trial with the fifteen jurors.

At trial, the Commonwealth called four individuals to

testify as eyewitnesses to the shootings -- Keil Kimbrough, Dwayne - 3 - Moody, Larry Brown, and Jones, the surviving victim. See Hudson,

, at *1. Each of these witnesses had also testified

at the first trial of Hudson and Hughes. See Commonwealth v.

Hudson,

(Mass. 2006). Moody identified

Hudson and Hughes as having committed the shooting, while Jones

stopped short of positively identifying Hudson as his attacker.

Hudson,

, at *1.

At the first trial, Kimbrough testified that he had been

present at the scene of the shootings. Hudson,

.

However, prior to the second trial, Kimbrough signed an affidavit

that recanted his testimony at the first trial, stated that he had

not in fact been present at the scene of the shooting, and claimed

that a police officer had instructed him on how to testify in

exchange for "consideration" in pending criminal matters of his

own.

. For that reason, Kimbrough invoked his Fifth

Amendment right against self-incrimination when called by the

Commonwealth to testify at the second trial.

After appointing counsel for Kimbrough and considering

the issue, the trial judge concluded that there was "some risk"

that Kimbrough could expose himself to a prosecution for perjury

were he to testify and consequently declared Kimbrough

unavailable.

The trial judge then permitted the Commonwealth

to read into the record the entirety of Kimbrough's testimony from

Hudson's and Hughes's first trial.

- 4 - Brown, during his testimony at the second trial,

positively identified Hudson as one of Twitty's and Jones's

shooters, although he had not done so during his testimony at the

first trial.

. Hudson objected to Brown's first-time,

in-court identification and moved for a mistrial, and the trial

judge denied that motion. Hudson,

, at *3.

Hudson was ultimately convicted in this second trial of

second-degree murder, assault and battery with a dangerous weapon,

armed assault with intent to murder, armed assault with intent to

rob, and unlawful possession of a firearm. Hudson,

, at *1. He received a sentence of life imprisonment for

second-degree murder, a consecutive sentence of eight-to-ten

years' imprisonment for assault and battery, and lesser concurrent

sentences for the remaining offenses.

B.

Hudson appealed his convictions. On direct appeal to

the MAC, he pointed to several alleged errors by the trial court,

including its handling of the jury-selection process, its decision

to allow Kimbrough to exercise his privilege against self-

incrimination and then to permit Kimbrough's testimony from the

first trial to be read into the record, and its refusal to declare

a mistrial following Brown's surprise identification of Hudson.

For reasons we will detail below, the MAC affirmed, see Hudson,

. The Massachusetts Supreme Judicial Court ("SJC") - 5 - denied Hudson's application to obtain further appellate review

("ALOFAR"). See Commonwealth v. Hudson,

(Mass.

2000) (unpublished table decision).

In 2001, Hudson filed a motion for a new trial pursuant

to Massachusetts Rule of Criminal Procedure 30(b). In that motion,

Hudson raised, among other claims, an ineffective assistance of

counsel claim which precipitated five years of litigation,

culminating in the SJC's denial of relief. See Hudson,

.

In 2006, following the unfavorable resolution of his

first new trial motion, Hudson filed the petition for a writ of

habeas corpus that is at issue in this appeal pursuant to

in the United States District Court for the District of

Massachusetts. Before the District Court had reached the merits

of his habeas petition, Hudson sought and was granted a stay of

those federal proceedings so that he could pursue a second new

trial motion in state court. Hudson's second new trial motion was

denied by the state trial court, and Hudson appealed.

While that appeal was pending, Hudson filed a third new

trial motion in state court, which was also denied. Hudson

appealed the denial of that motion as well, and the MAC

consolidated its appellate review of both motions. In 2015, the

MAC affirmed the denials of Hudson's second and third new trial

motions in the last reasoned state court opinion authored in this - 6 - case to date. See Hudson,

. Hudson then filed an

ALOFAR, which the SJC denied. See Hudson,

.

Hudson subsequently returned to federal court and moved

to reopen and amend his stayed petition for habeas corpus. The

District Court granted Hudson's motions, after which Hudson filed

his now-operative petition, which raised ten grounds for habeas

relief, including, as relevant to this appeal, that the trial court

violated Hudson's right to due process by (1) "permitting the

prosecution to read the prior testimony of the key Commonwealth

witness [Kimbrough] to the jury" after determining that he had

asserted a valid Fifth Amendment right against self-incrimination

and was thus unavailable to testify; (2) deciding "while empaneling

the jury to change the number of jurors to be seated," thereby

"unfairly prejudic[ing] [Hudson's] use of his peremptory

challenges"; and (3) "refus[ing] to declare a mistrial after a

surprise, first-time, in-court identification of [Hudson] by Larry

Brown."

Hudson's petition for habeas corpus was referred to a

United States Magistrate Judge for all pretrial proceedings. The

Magistrate Judge then issued a Report and Recommendation

suggesting that the District Court withhold judgment on the issue

of Kimbrough's testimony pending further briefing by the parties

but deny Hudson's petition on all other grounds. After receiving

the parties' additional briefing on the issue of Kimbrough's - 7 - testimony, the Magistrate Judge issued a second Report and

Recommendation suggesting that the District Court deny Hudson

relief on that ground as well.

Hudson subsequently filed objections to both Reports and

Recommendations, after which the District Court overruled Hudson's

objections, accepted and adopted both Reports and Recommendations,

and denied Hudson's petition in full. Hudson timely appealed.

II.

In cases where, as here, "'the district court undertakes

no independent factfinding [and] we are effectively in the same

position as the district court vis-à-vis the state court record,'

our review of a district court's denial of a habeas petition is de

novo." Porter v. Coyne-Fague,

, 74 (1st Cir. 2022)

(alteration in original) (quoting Pike v. Guarino,

(1st Cir. 2007)). "Our review of the state court decision is, in

contrast, governed by [the Antiterrorism and Effective Death

Penalty Act ("AEDPA")], which 'demands that a federal habeas court

measure a state court's decision on the merits against a series of

peculiarly deferential standards.'" Quintanilla v. Marchilli,

, 15 (1st Cir. 2023) (quoting Porter, 35 F.4th at 74

(internal quotation marks omitted)).

AEDPA's deferential standards are set forth in

(d), which provides that, "with respect to any claim that

was adjudicated on the merits in State court proceedings," a - 8 - federal court may not grant a petitioner's application for habeas

relief unless the petitioner can show that the state court's

"adjudication of the claim -- (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."

(d).

Subsection 2254(d)(1) "splits into two distinct avenues

for relief: the 'contrary to' clause and the 'unreasonable

application' clause." Porter, 35 F.4th at 74. The "contrary to"

clause is satisfied where the petitioner can show that "the state

court arrive[d] at a conclusion opposite to that reached by [the

Supreme] Court on a question of law or . . . decide[d] a case

differently than [the Supreme] Court has on a set of materially

indistinguishable facts." Williams v. Taylor,

, 412–

13 (2000). The "unreasonable application" clause requires a

showing that "the state court identifie[d] the correct governing

legal principle from [the Supreme] Court's decisions but

unreasonably applie[d] that principle to the facts" of the

petitioner's case.

.

For purposes of this analysis, "clearly established

Federal law, as determined by the Supreme Court of the United

States" means "the holdings, as opposed to the dicta, of th[e] - 9 - Court's decisions as of the time of the relevant state-court

decision."

. "State courts must 'reasonably apply'

existing Supreme Court precedent, but they need not 'extend that

precedent.'" Porter, 35 F.4th at 74 (quoting White v. Woodall,

(2014)). "The upshot of the AEDPA habeas

regime is that 'when the last state court to decide a prisoner's

federal claim explains its decision on the merits in a reasoned

opinion . . . a federal habeas court simply reviews the specific

reasons given by the state court and defers to those reasons if

they are reasonable.'"

at 75 (quoting Wilson v. Sellers,

(2018)).

III.

On appeal from the District Court's denial of his

petition for habeas corpus, Hudson challenges the rejection of

three of his asserted grounds for habeas relief. He contends that,

with respect to each, the underlying state court ruling was either

contrary to, or involved an unreasonable application of, Supreme

Court precedent such that he is now entitled to relief pursuant to

§ 2254(d)(1). Hudson's first challenge pertains to his contention

that his petition must be granted on the basis of his Confrontation

Clause rights having been violated when the trial judge deemed

Kimbrough unavailable to testify and subsequently permitted the

prosecution to read into the record Kimbrough's testimony from

Hudson's first trial. Hudson's second challenge pertains to his - 10 - contention that his petition must be granted because the trial

judge's midstream decision during jury selection to reduce the

total number of jurors to be empaneled unfairly prevented him from

utilizing his statutorily allotted peremptory strikes, thereby

denying him due process of law. Hudson's third challenge concerns

his assertion that he is entitled to habeas relief because the

trial judge violated his due process rights in denying his motion

for a mistrial after witness Larry Brown made a surprise in-court

identification of him.

A.

We start with Hudson's challenge to the denial of his

petition that concerns the Confrontation Clause -- which itself

comes in two parts. The first part pertains to the finding by the

trial judge that Kimbrough was "unavailable" as a witness. The

second part pertains to Hudson's contention that, even if Kimbrough

was unavailable, the testimony that Kimbrough gave at the first

trial was not "reliable," thus making it improper for that

testimony to have been read to the jury at the second trial.

1.

The District Court rejected the unavailability-based

claim for habeas relief on the ground that Hudson procedurally

defaulted it by failing to raise the claim on direct appeal in

state court. See

(b)(1); Josselyn v. Dennehy,

(1st Cir. 2007) (noting that § 2254(b)(1) requires a - 11 - state habeas petitioner to exhaust available remedies in state

court); Evicci v. Comm'r of Corr.,

(1st Cir. 2000)

(per curiam) (same).

Hudson challenges the District Court's conclusion in

part on the ground that he implicitly presented the claim to the

state courts by citing to Ohio v. Roberts,

(1980),

abrogated by Crawford v. Washington,

(2004), in

his brief to the MAC and in his ALOFAR to the SJC. But that

citation itself fails to specify that the ground of challenge was

to the finding of unavailability itself, as opposed to the

"reliability" prong of Ohio v. Roberts, and nothing in the

surrounding discussion in the brief in question suggests that the

unavailability ground was being pressed by Hudson. Thus, we cannot

see how we could conclude that the challenge to the trial judge's

unavailability finding was "fairly presented" to the MAC, Baldwin

v. Reese,

(2004), such that a reasonable jurist

would have been alerted to the existence of the unavailability

question, see Jaynes v. Mitchell,

(1st Cir.

2016); Sanchez v. Roden,

(1st Cir. 2014).

Hudson does also argue that, in any event, when the MAC

affirmed his conviction on direct appeal, it addressed the claim

(and, by extension, the SJC's summary denial of his ALOFAR

addressed it, too). In support of that contention, Hudson directs

our attention to this statement in the MAC's ruling as to his - 12 - Confrontation Clause claim: "Kimbrough had become unavailable to

testify at the second trial by virtue of his exercise of his Fifth

Amendment privilege against self-incrimination." Hudson,

, at *3. In the preceding sentence, however, the MAC framed

the claim of error to which it was turning its attention as

relating to the question of reliability. And, in the rest of the

paragraph, the MAC discussed exclusively the reliability prong of

Ohio v. Roberts.

Thus, we do not read the statement by the MAC to which

Hudson directs our attention to demonstrate that the MAC

adjudicated his challenge to the unavailability finding. Indeed,

when Hudson did ultimately present this claim in subsequent state-

court collateral attacks, the state courts denied the claim on the

basis of "an adequate and independent state procedural rule,"

Davila v. Davis,

, 527 (2017). When the MAC reviewed

the consolidated appeals of Hudson's second and third motion for

a new trial, it explained that it was reviewing "to determine only

whether there has been error creating a substantial risk of

miscarriage of justice," and in the course of that review, the MAC

denied the claim, finding no error.

, at *4. That

feature of the ruling by the MAC is significant for present

purposes because we have understood the last reasoned state court

decision to have deemed a claim procedurally defaulted where the

court applied the "miscarriage of justice standard." See Barbosa - 13 - v. Mitchell,

(1st Cir. 2016) (quoting Commonwealth

v. Barbosa,

(Mass. 2010)).

Finally, Hudson argues that we must reach the merits of

his unavailability claim because a "failure to consider" that claim

"will result in a fundamental miscarriage of justice." Lee v.

Corsini,

(1st Cir. 2015) (quoting Harris v. Reed,

(1989)). He contends that this "narrow

exception," Burks v. Dubois,

(1st Cir. 1995), to

the bar to our addressing a procedurally defaulted claim applies

here, as he can make a "colorable showing of factual innocence,"

Watkins v. Ponte,

(1st Cir. 1993) (quoting

McCleskey v. Zant,

(1991), superseded by statute

on other grounds as recognized by Banister v. Davis,

(2020)). We disagree.

A showing of actual innocence must be supported by "new

reliable evidence . . . that was not presented at trial," Lee,

(quoting Schlup v. Delo,

(1995)).

Because Hudson's "argument on this point alludes to no new

information suggesting innocence, but merely rehashes" evidence

that was available at the time of his trial, it fails. Burks,

.

2.

The District Court also rejected Hudson's reliability-

based Confrontation Clause challenge concerning Kimbrough. The - 14 - District Court fully adopted the Magistrate Judge's Report and

Recommendation as to this challenge, which recommended rejecting

the challenge on the ground that the MAC's conclusion that

Kimbrough's testimony fell within a firmly rooted exception to the

hearsay rule, and thus had the required indicia of reliability

under Ohio v. Roberts, was not unreasonable. Here, too, we agree.

In rejecting this Confrontation Clause-based claim on

direct appeal, the MAC first noted that the issues in Hudson's

first and second trials were "substantially the same" and that, at

the first trial, "Kimbrough was cross-examined without undue

restriction by competent defense counsel with similar motivation."

Hudson,

, at *3. The MAC then stated that

Kimbrough's testimony from the first trial fell within a recognized

exception to the hearsay rule, and thus was admissible, and,

"[m]oreover," that "the evidence bore the required indicia of

reliability to satisfy constitutional requirements."

Neither party contests that -- in general -- prior

recorded testimony is a firmly rooted hearsay exception that, under

Ohio v. Roberts, could be admitted without a further showing of

"adequate 'indicia of reliability,'"

. Hudson

contends, however, that the inquiry cannot end here in his case

because the "central mission of the right to confrontation" was

undermined at his trial. He contends this is so because the

testimony read into evidence was testimony that Kimbrough had - 15 - asserted was false in an affidavit, and therefore, Hudson argues,

the jury was denied a satisfactory basis from which to evaluate

the prior testimony because there was no opportunity for cross-

examination of Kimbrough at the second trial regarding his

subsequent sworn recantation.

The MAC reasoned, however, that the recantation

affidavit "did not affect the admissibility of the testimony, only

its weight" and that, because Hudson was afforded the opportunity

to impeach Kimbrough's prior recorded testimony with, among other

things, the recantation affidavit, "the fact finder [was afforded]

a 'satisfactory basis for evaluating the truth of the prior

statement.'" Hudson,

, at *3 (quoting Commonwealth

v. Bohannan,

(Mass. 1982)). Where the MAC has

explained its decision on the merits, we "simply review[] the

specific reasons given by the state court and defer[]" if those

reasons are reasonable. Porter, 35 F.4th at 75 (quoting Wilson,

). We cannot conclude that the MAC's reasons

here were so unreasonable "that there could be no 'fairminded

disagreement' on the question."

(quoting White,

).

The reasons provided by the MAC in support of its

conclusions were not unreasonable where then-governing Supreme

Court precedent held that such testimony falling within a firmly

rooted hearsay exception sufficed for purposes of the - 16 - Confrontation Clause "without more," Ohio v. Roberts,

, and Hudson cites no authority for the proposition that a

subsequent recantation so affected the reliability of the

testimony that its admissibility under the Confrontation Clause is

called into question, see Brown v. Ruane,

(1st

Cir. 2011) ("[T]hat no holding of the Supreme Court required

application to the factual context presented by the petitioner's

claim is dispositive in the habeas analysis."). Thus, we see no

basis for concluding that it was unreasonable for the MAC to treat

the evidence admitted as reliable.

B.

We turn next to Hudson's challenge to the denial of his

claim for habeas relief that concerns jury selection at his

criminal trial. Here, Hudson contends that the constitutional

violation was the state trial judge's late change in jury selection

procedures, which he contends violated his right to due process

and was a decision that was contrary to, or involved an

unreasonable application of, federal law. We affirm the District

Court's determination that Hudson has failed to make that showing.

1.

As described above, when jury empanelment for the second

trial started, the trial judge informed Hudson that sixteen jurors

would be seated and that, because Massachusetts law provided one

peremptory challenge for each juror, Hudson would have sixteen - 17 - peremptory challenges. See Hudson,

, at *1. Near

the end of the third day of jury selection, and shortly after the

selection of the fifteenth juror, the trial judge commented that

the parties were "going to try [to seat] one more [juror], and

after that I quit." The next juror was then questioned, challenged

by Hudson's co-defendant, and excused for cause. The trial judge

at that point declared, "That's it. I'm going with fifteen."

At the point the trial judge stopped jury empanelment,

Hudson had only exercised eleven of his sixteen peremptory

challenges. Hudson's counsel objected to the trial judge's

decision to stop empanelment and stated that he had "saved a bunch

of peremptories [sic] so [he] could have [his] perfect [sixteenth]

juror" and that he had saved five challenges "waiting for that

[sixteenth] juror who was going to be the person that [he] could

best communicate with." The trial judge noted the objection yet

proceeded to trial with the fifteen jurors.

On direct appeal, Hudson argued that his right to due

process, as articulated in Ross v. Oklahoma,

(1988),

was violated because he did not receive that which state law

provided as to peremptory challenges. Hudson contended that when

the trial judge changed the number of jurors to be empaneled

midstream, the trial judge rendered "worthless" five of the

peremptory challenges with which Hudson had started the

empanelment process. - 18 - In rejecting Hudson's challenge, the MAC first observed

that under Massachusetts law, even with a timely objection, "no

irregularity in the jury [empaneling] process" is sufficient to

set aside a jury verdict absent "some proof of prejudice." Hudson,

, at *1 (quoting Commonwealth v. Campbell,

(Mass. 1985) (citing M.G.L. c. 234, § 32)). The

MAC proceeded to conclude that, because "there [was] no evidence

that Hudson was precluded from exercising his peremptory

challenges during the [e]mpanelment process or that he was forced

to accept a juror who should have been excluded," there "was no

error" in the trial judge proceeding as he did. Id. In coming to

this conclusion, the MAC relied on the SJC's decision in

Commonwealth v. Beldotti,

(Mass. 1991).

Hudson contends, to us, as he did to the District Court,

that the MAC made and applied a statement of law contrary to

Supreme Court precedent when it said that a showing of prejudice

was required to set aside the verdict and, second, that the MAC

unreasonably applied Ross in rejecting his due process claim and

that, in that process, it misapplied state law. In this latter

challenge, he argues that (1) the MAC erred in relying on Beldotti

to conclude that there was no prejudice on the facts of Hudson's

case because Beldotti was distinguishable to the point of

irrelevance and (2) the MAC misapplied state law in concluding

- 19 - that a showing of prejudice from a diminution of peremptory

challenges was necessary to demonstrate a violation of state law.

2.

We start with Hudson's contention that the MAC, in

applying the rule from Campbell requiring a showing of prejudice

to set aside a verdict for any irregularities in the jury

empaneling process, erred. In so contending, it is not entirely

clear to us whether Hudson is arguing that the MAC's ruling was

contrary to, or involved an unreasonable application of, Supreme

Court precedent. But, either way, the argument is without merit.

Hudson premises the claim of error by the MAC on the

fact that the Supreme Court has held that the denial or impairment

of the right to a peremptory challenge is reversible error without

a showing of prejudice. See Swain v. Alabama,

(1965), overruled on other grounds by Batson v. Kentucky,

(1986) ("The denial or impairment of the right [to use

peremptory challenges in jury selection] is reversible error

without a showing of prejudice." (first citing Lewis v. United

States,

(1892) and then citing Harrison v. United

States,

(1896))). He thus contends that the MAC's

adverse ruling on his Ross claim is fatally flawed because the MAC

rejected the claim on the ground that Hudson had failed to show

any prejudice from the denial of his peremptory challenges. We

are not persuaded. - 20 - Hudson's challenge is based on the due process

principles articulated by the Supreme Court in Ross v. Oklahoma.

In Ross, the Court assumed without deciding that the Constitution

applied the rule that denial of the right to a peremptory challenge

is reversible error without a showing of prejudice to state

criminal proceedings. See

. The Court made clear,

however, that the right is only "denied or impaired" if a defendant

fails to receive "that which state law provides," as the Due

Process Clause itself does not confer the right to a peremptory

challenge.

Thus, even if Hudson is correct that under Swain no

showing of prejudice is necessary to establish reversible error

under federal law once a denial or impairment of the right to a

peremptory challenge that has been conferred by a State is

established, it may nonetheless be true that, as a matter of state

law, there is a prejudice requirement for purposes of showing that

there was a denial or impairment of the underlying right.

Thus, if Massachusetts state law requires a showing of

prejudice to establish a denial of a right to a peremptory

challenge, then Hudson's challenge under Ross can succeed only if

he can show that he was prejudiced by the asserted denial of

peremptory challenges. So, to the extent the MAC is understood to

be stating that such a showing of prejudice is necessary as a

matter of state law to show the denial of the state law right to - 21 - peremptory challenge, then Hudson's contention fails because the

MAC's application of Ross was not at odds in any respect with

Supreme Court precedent.2

Hudson does argue that the MAC still unreasonably

applied Supreme Court precedent in rejecting his Ross challenge

because he was in fact denied that which state law provided to him

with respect to the exercise of peremptory challenges and the MAC

misapplied state law in concluding otherwise. But we conclude

that Hudson has failed to make this showing.

a.

Hudson first contends that the MAC unreasonably applied

state law by relying on the SJC's decision in Beldotti to conclude

that, on the facts of his case, Hudson had failed to demonstrate

prejudice flowing from the denial of the peremptory challenges to

which he claimed he was entitled. Hudson argues that defense

counsel in Beldotti did not object before the trial court and only

raised the denial-of-a-peremptory-challenge issue on appeal; that,

because of that forfeiture, the SJC was reviewing for a substantial

risk of a miscarriage of justice; and that there was no evidence

in the record suggesting that defense counsel would have exercised

2 We note that Hudson is not bringing a separate due process claim that Massachusetts law violates his right to due process by requiring a showing of prejudice to prevail on a challenge to the denial of peremptory strikes as a matter of state law. - 22 - her or his peremptory challenges any differently had she or he

known of the ultimate procedure on which the trial court would

settle ahead of time. Thus, Hudson maintains, Beldotti has little

relevance to his own case, in which defense counsel timely

objected, stated on the record that he would have exercised his

peremptory challenges differently had he known the trial judge

would only seat fifteen jurors, and the MAC applied a less onerous

standard of review.

But we do not understand the MAC to have concluded that

there was no prejudice in Hudson's case because the facts were

sufficiently similar to those in Beldotti that the SJC's no-

prejudice conclusion in that case was controlling. Rather, we

read the MAC merely to have relied on Beldotti for the simple

proposition that, in the absence of a violation of state law or

some other showing of unfairness, there is no federal due process

problem. See Hudson,

, at *1. Because Hudson makes

no argument -- independent of the contention that Beldotti was

distinguishable -- that the MAC's no-prejudice finding itself was

unreasonable, any such argument is waived. See United States v.

Zannino,

(1st Cir. 1990). We thus can discern no

misapplication of state law by the MAC in this respect, let alone

one that constitutes an unreasonable application of state law.

- 23 - b.

Hudson next contends that the MAC misapplied state law

in rejecting his Ross claim because Campbell's prejudice rule bears

only on whether the state court will provide a remedy, in the form

of setting aside a jury verdict, not on whether state law was

violated because of a denial of a peremptory challenge. Thus,

Hudson contends, the MAC misapplied state law in rejecting his

Ross claim, because it failed to address whether he had been denied

that to which he was entitled under state law and instead rejected

the claim solely on the ground that he was not entitled to a remedy

for having been denied that entitlement.

We again disagree. In fact, precisely because of the

MAC's citations to Campbell and Beldotti, we do not see how else

to read the MAC other than as addressing Hudson's contention

pertaining to the diminution of his peremptory challenges and

deciding that, as a matter of Massachusetts law, the entitlement

to a certain number of peremptory challenges is a qualified one,

that the state law entitlement is only denied when it may be shown

that prejudice flows from the inability to exercise that many

peremptory challenges.

This conclusion follows from how the MAC started by

reciting the rule in Campbell that a showing of prejudice is

necessary before substantively analyzing whether Hudson had shown

prejudice. It was only after concluding that Hudson had not shown - 24 - prejudice that the MAC drew the ultimate conclusion that "[t]here

was no error," with the citation to Beldotti explaining that in

the absence of a state-law violation, or other showing of

unfairness, no federal due process principle is violated. See

Hudson,

, at *1. Because of the MAC's explicit

conclusion that there was "no error" and its invocation of Beldotti

for a proposition of which a necessary premise is that there is no

state-law violation, it is clear that the MAC was not deciding the

remedial question of whether a state-law violation warranted

setting aside the jury but rather was deciding that there was no

violation of state law of which to complain.

To the extent Hudson contends that this conclusion

itself was a misapplication of state law on the ground that there

was no basis in state law for the MAC to have arrived at this

conclusion because, first, the state rule of criminal procedure

pertaining to defendants' entitlement to peremptory challenges

says nothing about prejudice and, second, the only other

Massachusetts case deciding a similar issue was Beldotti, which is

distinguishable, we again conclude that Hudson's argument is

without merit.

To prevail Hudson must show that the MAC's application

of state law was unreasonable such that there could be no fair-

minded disagreement among jurists as to the MAC's application of

Ross. See Porter, 35 F.4th at 75. But where, as here, Hudson is - 25 - contending no more than that there was no Massachusetts precedent

directly on point and the MAC was ostensibly deciding the issue in

the first instance, that showing has not been made.3

C.

We turn finally to Hudson's contention that he is

entitled to a writ of habeas corpus based on the trial judge's

failure to declare a mistrial after witness Larry Brown made a

surprise, first-time, in-court identification of Hudson at trial.

The District Court ruled otherwise on the ground that the MAC's

rejection of this claimed due process violation was neither

contrary to nor an unreasonable application of then-existing

Supreme Court precedent, and we agree.

1.

As we noted above, Brown testified at Hudson's and

Hughes's first and second trials as an eyewitness to the shooting

of Twitty and Jones. At the first trial, Brown testified that he

had been present at the shooting, and he positively identified

Hughes as one of the assailants. However, he maintained that he

3 As an aside, we note that assuming arguendo the MAC had misapplied state law in coming to its conclusion, and therefore Hudson was denied a peremptory challenge in violation of state law, the Supreme Court has explained that "errors of state law do not automatically become violations of due process" in the course of rejecting a due process challenge predicated on the seating of a juror over a defendant's peremptory challenge. Rivera v. Illinois,

(2009). - 26 - could not identify Hudson as having been one of the shooters. The

Commonwealth thus did not ask Brown to identify Hudson during the

first trial.

At Hudson's second trial, the Commonwealth once again

called Brown to testify as an eyewitness. Before Brown was called

to testify, the prosecutor expressed to Hudson's counsel that Brown

would not be asked to identify Hudson. Then, during Brown's direct

examination, the prosecutor prompted Brown "to tell us who you saw

getting out of the car" that Brown had observed pull up to the

scene immediately prior to the shooting. Brown replied, "The two

gentlemen over there," indicating Hughes and Hudson, who were

seated together at the defense table.

Hudson's counsel objected to the identification and

requested a sidebar conference. At sidebar, the prosecutor

explained, "I expected [Brown] to say that he saw [Hughes]. I

didn't expect him to say he saw [Hudson] too. That's what he

testified to before." The trial judge expressed that he "[did

not] really think" that Brown's identification of Hudson had been

the result of "chicanery or trickery on the part of [the

prosecutor]," and he stated that there was therefore "no

therapeutic remedy" available to cure the surprise identification.

In response, Hudson's trial counsel moved for a mistrial, which

motion the trial judge denied.

- 27 - 2.

Hudson contends that "it was constitutional error to

deny the motion for mistrial" following Brown's surprise in-court

identification of him.4 That is so, he argues, because "[t]he

circumstances of Brown's identification [were] highly suggestive":

Brown "had witnessed Hudson sitting at the defense table during

several pretrial proceedings and at the first trial prior to

identifying him at the second trial," and "Hudson was seated with

his co-defendants who were known to Brown." Invoking then-existing

Supreme Court precedent, which he asserts clearly establishes

broadly that "reliability is the linchpin in determining the

admissibility of identification testimony," Manson v. Brathwaite,

(1977), Hudson argues that because Brown's

identification of Hudson was so unreliable, the MAC's

determination that the trial judge did not err by denying Hudson's

motion for a mistrial following the identification was contrary to

or an unreasonable application of clearly established federal law

4 In passing, Hudson also claims that Brown's identification of Hudson "should have been excluded" due to its unreliability, but he stops short of arguing that the trial judge's failure to exclude the identification was constitutional error. Further, the record shows that Hudson's trial counsel did not move to exclude the identification but rather asked only that the trial judge declare a mistrial. As such, to the extent that Hudson means to claim in the alternative that it was constitutional error for the trial judge not to have excluded the identification, that argument is waived. See Zannino,

. - 28 - such that he is entitled to habeas relief under

(d)(1). We disagree.

The MAC reasoned that the trial judge did not err by

admitting Brown's identification of Hudson because "[u]nder the

law in existence at the time of Hudson's trial, in-court

identifications were inadmissible only where they were 'tainted by

an out-of-court confrontation that was so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable

misidentification.'" Hudson,

at *5 (quoting

Commonwealth v. Crayton,

(Mass. 2014) (cleaned

up)). "Because Hudson [did not] allege[] that . . . Brown's

identification[ was] somehow tainted by improper or suggestive

out-of-court identification procedures, and the record [did] not

support such an inference," the MAC concluded, Hudson's claim

failed.

As the Report and Recommendation adopted by the District

Court explained, the then-existing "clearly established law"

concerning the reliability of witness identifications "ar[ose] in

the context of unnecessarily suggestive pretrial identification

followed by an in-court identification or the admission of the

suggestive pretrial identification procedures." Indeed, in

support of his contention that the circumstances of Brown's first-

time, in-court identification were impermissibly suggestive,

Hudson cites only to Supreme Court case law concerning the - 29 - suggestiveness of various pretrial, out-of-court identification

procedures. See Brathwaite, 432 U.S. at 101–02 (witness identified

the defendant pretrial after being shown a single photograph of

the defendant at police headquarters); Moore v. Illinois,

, 229–30 (1977) (victim viewed the defendant and heard evidence

implicating him at his arraignment before being asked to identify

him as her assailant); Kirby v. Illinois,

(1972)

(witness identified the defendants, before charges were filed and

without defense counsel present, via a show-up where all present

except the victim and defendants were police officers); Neil v.

Biggers,

(1972) (victim identified the defendant

pretrial via a single-suspect show-up).

Hudson does not argue that the record supports a finding

that Brown was prompted at any point prior to his in-court

identification to identify Hudson under any circumstances,

suggestive or otherwise. He contends only that Brown's

opportunities to observe Hudson at the defense table at the first

trial and at multiple pretrial proceedings prior to the second

trial combined to create impermissibly suggestive circumstances

that tainted Brown's first-time, in-court identification of him.

And, Hudson argues, because at the time of his second trial the

Supreme Court had announced in Brathwaite that "reliability is the

linchpin in determining the admissibility of identification

testimony,"

, clearly established Supreme Court law - 30 - required the trial judge to declare a mistrial following Brown's

unreliable identification.

But, as the Supreme Court has explained, while

(d)(1) "provides a remedy for instances in which a state

court unreasonably applies [Supreme Court] precedent[,] it does

not require state courts to extend that precedent or license

federal courts to treat the failure to do so as error." White,

. That means that, "'if a habeas court must extend

a rationale before it can apply to the facts at hand,' then by

definition the rationale was not 'clearly established at the time

of the state-court decision.'"

(quoting Yarborough v.

Alvarado,

(2004)).

We agree with the District Court that the facts of

Hudson's case are distinct enough from those at issue in Brathwaite

and the other precedent Hudson invokes that the MAC cannot be said

to have misapplied clearly established federal law by denying

Hudson relief on this claim. In Brathwaite, the Court considered

the admissibility of an undercover officer's identification

testimony where the officer had conducted a controlled buy of

narcotics from the defendant, who was then unknown to him; given

a detailed description of the defendant to another officer

immediately following the controlled buy; and been presented two

days later with a single photograph of the defendant, whom he

confirmed was the man who had sold him the narcotics. See 432 - 31 - U.S. at 100–02. To decide this question, the Brathwaite Court had

to resolve a circuit split over whether to apply a per se

exclusionary rule or a "totality of the circumstances" test focused

on the reliability of the identification to determine the

admissibility of "out-of-court identification evidence . . .

obtained through unnecessarily suggest[ive] confrontation

procedures." Id. at 110 (emphasis added).

Although Hudson is correct to point out that the

Brathwaite Court ultimately held that "reliability is the linchpin

in determining the admissibility of identification testimony,"

Brathwaite,

, his argument abstracts this holding

too far from its specific factual context concerning pretrial,

out-of-court identifications. Hudson has not -- and

cannot -- point to any then-existing Supreme Court case law that

would have required the MAC to find constitutional error in his

case without "extend[ing] the rationale" of the Brathwaite line of

cases to the separate factual context of a surprise, first-time,

in-court identification of a defendant by a testifying witness.

As such, we conclude that Hudson is not entitled to habeas relief

on this claim.5

5Hudson points out that the "District Court agreed with [him] that the identification was unreliable and should not have been admitted." But the District Court, reviewing Hudson's claim de novo and "assuming the Supreme Court law cited by [Hudson] applies to a first-time in[-]court identification," nonetheless "[found]

- 32 - IV.

For the foregoing reasons, the judgment of the District

Court is affirmed.

no violation of [Hudson's] due process rights" given the totality of the circumstances. Hudson v. Kelly, No. 06-cv-11755-IT,

, at *11 (D. Mass. Sept. 30, 2021) (considering that defense counsel "did not ask to strike the testimony," that Brown's "identification was not offered to the jury as a pre-trial identification entitled to some weight because of its proximity to the time of the events in question" but rather "occurred in real time before the jury (which could take note itself of the suggestive circumstances of the identification)," and that "Brown was then subject to cross-examination that allowed the jury to determine this lack of reliability."). And, reviewing de novo ourselves, see Porter, 35 F.4th at 74, we agree that any error was harmless in view of the same facts. - 33 -