UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No 01-2411
STATEMENT OF THE CASE
In November, 1981, the Petitioner was tried in Middlesex County for a 1978 shooting and was convicted
of murder, armed robbery, and illegally carrying a firearm (A. 1-21). He was sentenced to a mandatory
term of life imprisonment for murder; a concurrent eighteen-to-twenty term for armed robbery; and
three-to-five years for carrying a firearm.
The convictions, and the denial of a 1983 motion for new trial, were affirmed in Commonwealth v.
Rodwell, 394, 477 N.E. 2d 385 (1985). A second motion for new trial was denied in 1986 by the trial
Judge, and the denial of the Petitioner-Appellant’s habeas corpus petition was affirmed in 1987. Rodwell
v. Fair, No. 86-2455, slip op. (D. Mass. April 13, 1987); Rodwell v. Fair, 834 F.2d 240 (1st Cir. 1987)
(per curiam).
A Superior Court Justice who had not sat at trial denied a third motion for new trial in 1993, and the Supreme Judicial Court did not permit an application to appeal. In 1997 the petitioner filed a fourth motion for new trial based upon newly discovered exculpatory evidence that had been suppressed by the prosecution. The motion, denied without hearing, was accompanied by affidavits including that of a Suffolk County prosecutor who stated that the chief investigator in the Petitioner-Appellant’s case had appeared without notice to him and undercut his sentencing recommendation in criminal proceedings against David Nagle, who testified to the Petitioner’s supposed “jailhouse confession” in this case (see A. 81-230). The Supreme Judicial Court again declined to allow an appeal.
In 1998 the petitioner filed a fifth motion for new trial, along with a motion to correct sentence pursuant to Mass. R. Crim. P. 30(a). The motions, again, were denied without a hearing. The Supreme Judicial Court permitted only an appeal concerning the claim of duplicative sentencing, then (on July 28, 2000) determined that the claim had been waived.
The Petitioner-Appellant filed a second and subsequent petition with Hon. William Young which was denied. He then appealed directly to the First Circuit Court of Appeals and sought permission to proceed in the First Circuit with his second and/or subsequent petition. This was denied on November 4, 1999.
The Petitioner-Appellant subsequently filed a motion seeking a new trial pursuant to Rule 60 (b) (6) of the Federal Rules of Civil Procedure to vacate a judgment denying him habeas relief. This motion was denied by Hon. William Young on August 28, 2001. The Petitioner-Appellant sought and received a Certificate of Appealability and this appeal has followed.
The Petitioner-Appellant was ordered to seek, sought, and was denied a Certificate of Appealability on August 28, 2001 and filed a claim of appeal on October 10, 2001.
STATEMENT OF THE ISSUE
Should the Petitioner-Appellant’s motion, pursuant to Rule 60 (b) (6) of the Federal Rules of Civil Procedure, to vacate a judgment denying him habeas relief be considered a second or successive petition presented to the Court pursuant to Title 28 U.S.C. §2244, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)?
STATEMENT OF FACTS
There was no forensic evidence linking the Petitioner-Appellant to the charged offenses. The Commonwealth’s case relied on two witnesses: an immunized witness who drove the victim to the murder scene and who drove away after the shooting, and an inmate who had the opportunity to confer with the immunized witness prior to trial, when the two were incarcerated together (See, e.g., TR. IV-165). He claimed the Petitioner-Appellant confessed to him while being held prior to trial after being implicated upon the claims of the immunized witness, more than two years after the crime and while both witnesses faced multiple life felony convictions upon various charges. The immunized witness, Francis X. Holmes, Jr., had been employed by the Petitioner in 1978 and did not first implicate the Petitioner-Appellant in the killing until Holmes was himself in federal custody in 1981 (Tr. II-64; Tr. III-29).
POST CONVICTION PROCEEDINGS
The Petitioner-Appellant has been denied relief, or even an evidentiary hearing, upon proffering a showing that, for example:
Prosecutors failed to disclose that David Nagle, the chief “jailhouse informant” witness against the Petitioner-Appellant, was a long-standing paid informant whose tenure as an undercover agent with the DEA, as well as an informant for additional state and federal law enforcement sponsors, included 1981, the year in which he first implicated and then testified against the Petitioner-Appellant (See, e.g., A. 88, 89, 97 [13], 113-115; See also A. 137-144);
Prosecutors never disclosed that the DEA used Nagle as an undercover agent while he served a Massachusetts sentence (See e.g., 88, 126; See generally A. 137-144), which would have supplied the factual showing that the Supreme Judicial Court determined was missing when, in the Petitioner-Appellant’s direct appeal, it refused to reach the issue of whether Nagle was a government agent with a stake in confabulating a jailhouse “confession” to curry favor with law enforcement authorities to whom he had been reporting (See Commonwealth v. Rodwell, 394 Mass. 694, 477 N.E. 2d 385);
Nagle falsely testified that his sole concrete consideration for testifying against the Petitioner-Appellant was a transfer to a western Massachusetts jail, information which has been repeatedly and successfully invoked by the government as supposedly evidencing that the jury heard “sufficient” testimony concerning Nagle’s “bias” (But see, e.g., undisclosed Middlesex County bail hearing at A. 133-134);
Nagle falsely testified, in testimony relied upon by the Supreme Judicial Court in rejecting the Petitioner-Appellant’s contention that Nagle was a government agent, that he had no contact with any law enforcement officer about this case until July 14, 1991, when in fact, an undisclosed June 12, 1981 hearing before a Middlesex County Superior Court judge revealed that Middlesex County prosecutors were well aware of, and withheld from the defense, the fact that well before either Nagle or the Commonwealth’s chief police investigator that Nagle first implicated the Petitioner-Appellant in this case, Nagle had “given a great deal of information to the Suffolk D.A.’s office and actually to some Middlesex police as well, regarding other matters. On the Suffolk cases they intend to transfer him to the western part of the State for safety purposes”¹ (A. 133-134) (emphasis supplied);
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¹ In addition to undermining Nagle’s trial testimony that he did not first discuss the homicide with Lieutenant Spartichino until July of 1981, this withheld information also prevented defense counsel from undermining Nagle’s claim at trial that he had been put into the Billerica House of Correction for no other reason than being held in lieu of bail-rather than, as his own counsel acknowledged at the non-disclosure bail hearing, as a “protective” benefit associated with his cooperation with Suffolk and Middlesex authorities.
