Monteiro v. Commonwealth of Massachusetts

1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
KEON MONTEIRO, )
)
Petitioner )
)
v. )
) Case No. 23-cv-11609-DJC
)
COMMONWEALTH OF MASSACHUSETTS, )
)
Respondent. )
__________________________________________)
MEMORANDUM AND ORDER
CASPER, C.J. December 16, 2025
I. Introduction
Petitioner Keon Monteiro (“Monteiro”), proceeding pro se, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). D. 1. For the reasons set forth below,
the Court DENIES the Petition.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a
person in state custody may petition a federal court for relief on the grounds that such custody is
in violation of the petitioner’s constitutional rights, or the laws and treaties of the United States.
28 U.S.C. § 2254(a). For a federal court to grant habeas relief, the burden lies with the petitioner
to demonstrate that the judgment of the state court, as adjudicated on the merits, was either (1)
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “based on an unreasonable
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 1 of 21

2
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d).
A state court’s judgment is “contrary to” federal law when “the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The “unreasonable
application” clause applies when “the state court identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. at 413. Significantly, “an unreasonable application of federal law is different
from an incorrect application of federal law,” id. at 410 (emphasis in original), such that a state
court’s application of the law will not be deemed unreasonable if “‘fairminded jurists could
disagree’ on the correctness of the state court’s decision,” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Under Section 2254(d)(2), factual determinations made by a state court are “presumed to
be correct” unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “[A]
decision adjudicated on the merits in a state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable in the light of the evidence
presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In
essence, habeas relief provides a “guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at
102-03 (citations and internal quotation marks omitted). Accordingly, AEDPA “mandates highly
deferential federal court review of state court holdings.” Zuluaga v. Spencer, 585 F.3d 27, 29 (1st
Cir. 2009) (citing Williams, 529 U.S. at 403). “[E]ven a strong case for relief does not mean the
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 2 of 21

3
state court’s contrary conclusion was unreasonable” as Section 2254(d) is “designed to confirm
that state courts are the principal forum for asserting constitutional challenges to state convictions.”
Harrington, 562 U.S. at 102-03.
III. Relevant Factual and Procedural Background
Unless otherwise noted, the factual background set forth below is drawn from the Suffolk
Superior Court’s ruling on Monteiro’s second motion for a new trial, D. 15-2; D. 28-1 at 713-34,
the Massachusetts Appeals Court’s decision affirming Monteiro’s convictions on the consolidated
appeal and the denial of his second motion for a new trial, D. 1-3 at 2-11; D. 15-3; D. 28-1 at 527-
530; Commonwealth v. Monteiro, No. 19-P-1280, 2022 WL 2674229, at *1 (Mass. App. Ct. July
12, 2022) (unpublished), and the state court record, D. 28-1 et seq.
A. The Crime, Police Investigation and Charges
On November 28, 2012, at approximately 2:44 p.m., the Boston Police received a report
regarding shots fired in the vicinity of Batchelder and Longmeadow Streets in Roxbury. D. 28-1
at 714. Witness Luis Docanto (“Docanto”) was walking in the vicinity of Batchelder Street with
his nephew at the time of the shooting when he heard a single gunshot, and following a pause,
heard two more gunshots. Id. at 714-15. An individual “clutching the butt end of a gun”
approached within seven or eight feet of Docanto and “sputtered, ‘gunshots, somebody just got
shot’” and resumed running up the street. Id. at 715. Docanto watched the male run to a black
Lexus SUV, unlock and enter the driver’s side, and speed away. Id. Docanto looked at the license
plate and typed a partial plate listing in the notes section of his cell phone. Id. Officers found two
apparent shooting victims, later identified as Sean Repetto (“Repetto”) and Victor Otoadese
(“Otoadese”). Id. at 714. Otoadese died while in transport to the Boston Medical Center and
Repetto succumbed to his injury on December 2, 2012. Id.
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 3 of 21

4
The Boston Police conducted a search of motor vehicle records using the partial license
plate data provided by Docanto and found a potential match to a vehicle registered to Monteiro’s
mother. Id. at 716.
B. Trial Testimony
On July 26, 2013, a Suffolk County grand jury returned an indictment charging Monteiro
with the murders of Sean Repetto and Victor Otoadese. See D. 28-1 at 9. Monteiro’s jury trial
began on November 12, 2025. Id. at 713. George Timothy Bryson (“Bryson”) testified to
encountering Otoadese and Repetto in Quincy the morning of November 28, 2012. Id. at 716.
Bryson stated that once they arrived in front of Maria Cancel’s house in Water Street in Quincy,
Monteiro, known to Bryson as “Killa,” drove by in his black Lexus SUV and called out to Repetto
that he would be right back. Id. Bryson testified that at some point Repetto and Otoadese left the
house and when he looked out the front door from the foyer, he saw Monteiro’s Lexus and
Otoadese enter the front passenger seat and Repetto get into the rear seat. Id. at 716-17. The
Commonwealth presented evidence of calls placed between Monteiro’s phone and Repetto’s
phone on November 28, 2012 that corroborated Bryson’s testimony. Id. at 717.
Bryson also testified that Monteiro made threats to him on two different occasions after the
homicides. Id. 718; D. 28-1 at 527. “[Monteiro] asked Bryson ‘why [Bryson] was running around
telling people that [Monteiro] . . . did what he did. The first threat occurred days before Otoadese’s
funeral, and the second occurred two weeks before Bryson testified before a grand jury.
[Monteiro] addressed himself to Bryson as ‘Killa’ and Bryson knew [Monteiro] by the nickname
‘Killa.’ At the time of the first threat [Monteiro] moved his hand to his waistline indicating he
may be carrying a concealed weapon.” D. 28-1 at 527.
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 4 of 21

5
Stephanie Vega (“Vega”) testified that she was a friend of Repetto and Otoadese and posted
about their deaths on Facebook. Id. at 718. Vega testified that [Monteiro] “approached Vega in a
convenience store, introduced himself as ‘Killa,’ and told her ‘if you keep talking, you can end up
the same way like them.’” Id. at 528, 718.
C. Post Conviction State Court Proceedings
On December 4, 2015, a jury found Monteiro guilty of two counts of murder in the second
degree and unlawful possession of a firearm and the trial court sentenced him to concurrent terms
of life imprisonment on the murder convictions (and four to five years on the firearm conviction).
D. 28-1 at 713. The original trial judge (Roach, J.) was replaced during the course of the trial,
with the assent of the parties, by another judge (Locke, J.). Id. On January 5, 2016, Monteiro filed
his first motion for a new trial, arguing that a juror discussed his case during a prayer service prior
to deliberations in violation of the court’s instructions not to discuss the trial. Id. at 22, 714. The
court denied the motion on April 12, 2017, without an evidentiary hearing. Id. at 23, 714.
Monteiro did not appeal this denial. See D. 15-3 at 1; Monteiro, 2022 WL 2674229, at *1.
On July 17, 2017, Monteiro filed his second motion for a new trial, arguing that the court
erred in admitting evidence of Monteiro’s alias, “Killa,” witness testimony concerning evidence
of consciousness of guilt and that his trial counsel was ineffective. D. 28-1 at 714, 723-33. Prior
to the hearing on the motion, Monteiro moved to have the case transferred back to the original trial
judge. See D. 2 at 12-13; D. 15-1 at 20; D. 28-1 at 24. Judge Locke denied the motion. D. 28-1
at 24. The trial court held an evidentiary hearing on November 16, 2018, and December 14, 2018,
and subsequently denied the second motion for a new trial, reasoning that the trial court properly
exercised its discretion in allowing evidence of the nickname, “Killa” and witness testimony
concerning consciousness of guilt. Id. at 24-25, 723-26. The court further reasoned that Monteiro
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 5 of 21

6
did not satisfy the standard of ineffective assistance of counsel because, among other reasons, there
was no evidence that his trial strategy was “manifestly unreasonable” to warrant a basis for a new
trial. See id. at 726-34.
In a consolidated appeal from Monteiro’s convictions and second motion for a new trial,
the Massachusetts Appeals Court affirmed the Suffolk Superior Court’s ruling. D. 1-3 at 1; D. 15-
3 at 1; D. 28-1 at 527; Monteiro, 2022 WL 2674229, at *1. The appellate court noted that Monteiro
did not appeal his first motion for a new trial and, therefore, the issues considered as to a motion
for a new trial by the court only included whether the trial court erred by admitting evidence of
Monteiro’s nickname, “Killa,” and consciousness of guilt, and whether trial counsel was
ineffective. D. 1-3 at 1-2; D. 15-3 at 1; D. 28-1 at 527; Monteiro, 2022 WL 2674229, at *1. With
respect to the admission of Monteiro’s nickname, the appellate court concluded that the evidence
of his nickname was “relevant to his identity and to the context of the threat he intended to convey
to both witnesses,” that the record did not “support [Monteiro’s] further claim that the
Commonwealth made gratuitous use of and exploited [Monteiro’s] nickname to impeach his
character,” that “[t]he witnesses who were threatened did not overuse the nickname during their
testimony” and that “the single reference to the nickname during the prosecutor’s closing argument
did not constitute a substantial risk of a miscarriage of justice.” D. 28-1 at 528. As to the
ineffective assistance of counsel issues, the appellate court concluded that Monteiro’s experienced
criminal defense lawyer made “reasonable, strategic decisions” to attempt to undermine the
Commonwealth’s case and discredit key witnesses. Id. at 529. The appellate court also noted that
the “trial counsel’s performance did not fall measurably below that of an ordinary fallible lawyer”
by conceding that Monteiro used the cell phone “close in proximity to the crime scene a few
minutes after the murders” because trial counsel was aware a witness would testify regarding
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 6 of 21

7
Monteiro’s possession and use of the cell phone on the day of the murders and because trial
counsel’s strategy was “to attempt to discredit the evidence by casting doubt that [Monteiro] was
at the location of the murders.” Id.
On August 1, 2022, Monteiro submitted an application for leave to obtain further appellate
review (“ALOFAR”) to the Supreme Judicial Court. D. 15-4 at 1, 24; see D. 28-1 at 735-59. In
identifying the issues for which Monteiro was seeking further appellate review, he asked the
Supreme Judicial Court, first, to consider whether the decision to admit evidence of Monteiro’s
nickname “Killa” unfairly prejudiced Monteiro, second, to consider whether the trial judge
properly admitted evidence of consciousness of guilty through threatening witnesses, and third,
whether Monteiro’s trial counsel’s strategy was “manifestly unreasonable and counterproductive,
costing Monteiro a chance of acquittal.” D. 28-1 at 747-48. On September 12, 2022, the Supreme
Judicial Court denied the ALOFAR. See D. 2 at 5; D. 28-1 at 770; Commonwealth v. Monteiro,
490 Mass. 1105, 1105 (2022).
D. This Petition
Monteiro filed the Petition asserting four grounds for relief: (1) the trial court failed to
properly investigate the allegations of juror misconduct; (2) the trial court erred by admitting
evidence of the use of Monteiro’s alias, “Killa,” during trial; (3) trial counsel was ineffective by
failing to assert a “third party culprit” defense; and (4) Monteiro’s appellate counsel provided
ineffective assistance by failing to move to recuse Judge Locke. D. 1 at 5-10. On August 30,
2024, this Court allowed the Commonwealth’s motion to dismiss as to Grounds One and Four and
concluded it would dismiss the other grounds unless Monteiro voluntarily dismissed the claims on
exhaustion grounds. D. 20. Subsequently, Montiero moved to dismiss the unexhausted grounds
remaining in his Petition, Grounds One and Four, D. 21, and the Petition now proceeds as to the
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 7 of 21

8
remaining grounds, Grounds Two and Three. D. 22. The remaining grounds for habeas relief are
as follows: The Commonwealth erred by admitting evidence of the use of Monteiro’s alias,
“Killa,” during trial (Ground Two); and Monteiro’s trial counsel was ineffective by failing to assert
a “third party culprit” defense (Ground Three). D. 1 at 7-8; D. 23 at 2-5.
IV. Discussion
A. Admission of Monteiro’s Nickname (Ground II)
Monteiro contends that the Suffolk Superior Court erred in allowing the Commonwealth
to use Monteiro’s entertainment/rapper nickname, “Killa,” as evidence of guilt over the objections
of his trial counsel. D. 1 at 7; D. 2 at 9; D. 23 at 3-4. Monteiro argues the admission of the
nickname was prejudicial to his defense and deprived him of the right to a fair trial because the
nickname “justified the possibility that he was a dangerous person who could have committed the
crime of murder, even though he had never been accused, charged, or previously convicted of this
type of crime.” D. 1 at 7; D. 2 at 7; D. 23 at 2.
1. Ground II is Unexhausted
The Commonwealth argues that Monteiro did not exhaust a federal constitutional basis for
this claim in state court because although Monteiro invoked his right to a fair trial, “he relied
primarily on state law addressing the admissibility of evidence” and “cannot meet his ‘heavy
burden’ of proving he exhausted the fair trial aspect of Ground Two.” D. 27 at 10-11. “To achieve
exhaustion, ‘a habeas petitioner bears a heavy burden to show that he fairly and recognizably
presented to the state courts the factual and legal bases of [his] federal claim.” See Coningford v.
Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011) (quoting Adelson v. DiPaola, 131 F.3d 259, 262
(1st Cir. 2003)). “A claim is fairly presented when the petitioner has tendered his federal claim
‘in such a way as to make it probable that a reasonable jurist would have been alerted to the
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 8 of 21

9
existence of the federal question.’” Sullivan v. Saba, 840 F. Supp. 2d 429, 434 (D. Mass. 2012)
(quoting Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007)). To exhaust federal claims in
state court, the federal nature of the claims must be indicated by: “(1) citing a provision of the
federal constitution; (2) presenting a federal constitutional claim in a manner that fairly alerts the
state court to the federal nature of the claim; (3) citing federal constitutional precedents; or (4)
claiming violation of a right specifically protected in the federal constitution.” Clements, 485 F.3d
at 162. The First Circuit has also noted that “in some situations, citations to state court decisions
which rely on federal law or articulation of a state claim that is, ‘as a practical matter, []
indistinguishable from one arising under federal law,’ may suffice to satisfy the exhaustion
requirement.’” Id. (quoting Nadworny v. Fair, 872 F.2d 1093, 1099-1100 (1st Cir. 1989)).
In the Petition, Monteiro does not cite a provision of the federal Constitution or allege a
constitutional violation in support of his Ground II claim. D. 1 at 7; see D. 2 at 9-11; D. 23 at 33-
4. The two Supreme Court cases Monteiro relies upon in his supporting memoranda, see D. 2 at
10; D. 23 at 4, Michelson v. United States, 335 U.S. 469, 475-76 (1948), and Greer v. United
States, 245 U.S. 559, 560 (1918), do not invoke the constitutional right to a fair trial and instead
relate to the evidentiary rules and principles governing the admission of character evidence. See
Michelson, 335 U.S. at 484 (concluding that the admission of evidence regarding defendant’s prior
arrest was not an abuse of discretion given “the context of [the] evidence and in the absence of
objection on [that] specific ground”); Greer, 245 U.S. at 560 (affirming appellate court and
explaining that “[i]t is not established as a matter of law that all persons indicted are men of good
character” and that “character is not an issue in the case unless the prisoner chooses to make it
one”).
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 9 of 21

10
In his second motion for a new trial and accompanying memorandum to the Suffolk
Superior Court, Monteiro requested a new trial “pursuant to Mass. R. Crim. P. 30(b), the Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution” and listed various grounds,
including that “[t]he fairness of the [his] trial was further marred by the introduction and gratuitous
use of his nickname, ‘Killa’ or ‘Killer’” and he submitted that “this inflammatory and prejudicial
evidence should not have been admitted at trial.” D. 28-1 at 164. Monteiro argued that the
nickname, which should never have been admitted, was used gratuitously and for improper
purposes throughout the trial and the prejudicial impact was not mitigated by a limiting instruction.
See id. at 182-88. These arguments regarding the admissibility and use of Monteiro’s nickname,
however, were grounded in state evidentiary rules, did not raise any constitutional arguments or
Supreme Court cases and were untethered to the singular mention of the constitutional
amendments. See id. Similarly, in Monteiro’s brief to the Massachusetts Appeals Court, the issue
presented was framed as, “[w]as Monteiro deprived of a fair trial because the trial judge improperly
allowed the Commonwealth to use Monteiro’s nickname ‘Killa,’” but his arguments solely relied
upon Massachusetts evidentiary rules and cases without any reference to any constitutional
grounds or Supreme Court cases. See id. 47-60. Monteiro raised substantively the same
arguments, which lacked any reference to a constitutional violation, in his ALOFAR and asserted
that he did not receive a fair trial since his nickname was “inadmissible and unfairly prejudicial,
because it was utterly unnecessary for identification and was admitted solely to suggest criminal
propensity.” Id. at 739-40, 747, 749-54. Monteiro’s continued characterization of the nickname
evidence as “prejudicial” speaks to evidentiary rules, not due process or other constitutional
grounds. This is insufficient to establish the fair presentation prerequisite. Coningford, 640 F.3d
at 482-83 (concluding petitioner did not fairly present a due process claim by relying upon state
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 10 of 21

11
evidentiary rules, “accompanied by generalized complaints about prejudice”); Martens v.
Shannon, 836 F.2d 715, 717 (1st Cir. 1988) (noting that “the exhaustion doctrine requires a habeas
applicant to do more than scatter some makeshift needles in the haystack of the state court record.
The ground relied upon must be presented face-up and squarely; the federal question must be
plainly defined”). Accordingly, Ground II is unexhausted.1
2. Ground II is Procedurally Defaulted
Even assuming arguendo that Ground II was exhausted, it is procedurally defaulted
because, as the Commonwealth contends, the Massachusetts Appeals Court expressly rejected
Monteiro’s claim “based on the independent and adequate state procedural bar of preservation—
that is, of failing to comply with the state’s contemporaneous-objection rule.” D. 27 at 12. The
Massachusetts contemporaneous objection rule, which requires a party to make their objection
known at the time of the ruling, Mass. R. Crim. P. 22, is an independent and adequate state
procedural rule barring federal habeas review. See Janosky v. St. Amand, 594 F.3d 39, 44 (1st
Cir. 2010) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “The [Supreme Judicial
Court] regularly enforces the rule that a claim not raised is waived.” Gunter v. Maloney, 291 F.3d
74, 79 (1st Cir. 2002); see Janosky, 594 F.3d at 44 (stating that “[w]e 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”). As to the admission
1 The Commonwealth also asserts that Monteiro’s “challenge is not cognizable before this
court because it concerns an alleged error of state law.” D. 27 at 14. In the present case, Monteiro’s
arguments and reliance on state law together with the Massachusetts Appeals Court’s reasoning in
denying his claim, which was also solely based on Massachusetts evidentiary law, D. 28-1 at 527-
28, are insufficient “to transmogrify his garden-variety claim of evidentiary error into the
functional equivalent of a claim of constitutional magnitude.” Coningford, 640 F.3d at 483.
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 11 of 21

12
of Montiero’s nickname, Monteiro’s trial counsel objected to the admission of same in a motion
in limine prior to trial. See D. 28-1 at 95-96; id. at 107; D. 28-3 at 70-72. Monteiro’s trial counsel,
however, did not object during trial on the basis that admission and use of the nickname would
prejudicially suggest to the jury that Monteiro “was a dangerous person who could have committed
the crime of murder, even though he had never been accused, charged, or previously convicted of
[a homicide],” D. 2 at 9; D. 23 at 3. The Massachusetts Appeals Court noted as much and applied
the “substantial risk of a miscarriage of justice” to this unpreserved objection in rejecting
Montiero’s claim that the trial judge erroneously allowed the Commonwealth to admit evidence
of his nickname. D. 28-1 at 527; Monteiro, 2022 WL 2674229, at *1 (citing Commonwealth v.
Lawton, 82 Mass. App. Ct. 528, 533 (2012) (noting that “[b]ecause the defendant has raised this
issue for the first time on appeal, we review only to determine whether a substantial risk of
miscarriage of justice was created”); cf. Commonwealth v. Grady, 474 Mass. 715, 719 (2016)
(noting that, “going forward,” “[a]n objection at the motion in limine stage will preserve a
defendant’s appellate rights only if what is objectionable at trial was specifically the subject of the
motion in limine”) (emphasis in original). Thus, Monteiro has procedurally defaulted on this claim
and did not preserve it for a habeas petition. See, e.g., Horton v. Allen, 370 F.3d 75, 80-83 (1st
Cir. 2004) (concluding that because “[d]efense counsel did not object to conducting the individual
voir dire in the anteroom” the claim was not preserved for a habeas petition); see Rodriguez v.
Russo, 495 F. Supp. 2d 158, 169-70 (D. Mass. 2007) (concluding that the alleged grounds for
habeas relief were not properly preserved because petitioner failed to contemporaneously object).
To overcome this procedural default, Monteiro has the burden of demonstrating cause for
the default and prejudice, or a miscarriage of justice. See Janosky, 594 F.3d at 44; Coleman, 501
U.S. at 750. “The general requirement for cause for a procedural default is that the prisoner must
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 12 of 21

13
show ‘that some objective factor external to the defense impeded counsel’s efforts to comply with
the State’s procedural rule.’” Gunter, 291 F.3d at 81 (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)); Burks v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995) (citing cases). Here, Monteiro
raised his objection regarding the admission and use of his nickname prior to trial and there is no
reason as to why he could not have similarly raised his objections during trial. Monteiro makes
no showing as to cause, see generally D. 1; D. 2; D. 23, and the Court does not find that this
exception is applicable.
Even if Monteiro could demonstrate cause, he would also need to show actual prejudice.
Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994). To prove actual prejudice, Monteiro must show
“not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
Costa v. Hall, 673 F.3d 16, 26 (1st Cir. 2012) (emphasis and internal quotation marks omitted).
As the Massachusetts Appeals Court determined, “evidence of [Monteiro’s] nickname was
relevant to his identity and to the context of the threat he intended to convey to both witnesses.”
D. 28-1 at 527. “Additionally, the record does not support the defendant’s further claim that the
Commonwealth made gratuitous use of and exploited the defendant’s nickname to impeach his
character” and “[t]he witnesses who were threatened did not overuse the nickname during their
testimony.” Id. Monteiro has, therefore, not carried his burden in relation to demonstrating
prejudice.
Monteiro has similarly failed to establish a miscarriage of justice. “It is clear that for
habeas purposes the federal ‘fundamental miscarriage of justice’ standard means that petitioner
must establish actual innocence.” Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999).
Monteiro has the burden “to demonstrate that more likely than not, in light of the new evidence,
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 13 of 21

14
no reasonable juror would find him guilty beyond a reasonable doubt – or, to remove the double
negative, that more likely than not any reasonable juror would have reasonable doubt.” House v.
Bell, 547 U.S. 518, 538 (2006). Because this exception “applies only in extraordinary
circumstances,” Janosky, 594 F.3d at 46 (citing cases), Monteiro must present “reliable evidence,”
such as “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence” to mount a successful innocence claim. House, 547 U.S. at 537 (quoting Schulp v.
Delo, 513 U.S. 298, 324 (1995)) (internal quotation marks omitted). Monteiro has made no such
showing here to support a claim of actual innocence. Accordingly, the Court concludes on this
record that there was no fundamental miscarriage of justice.
Accordingly, Ground II is procedurally defaulted.
B. Ineffective Assistance of Counsel (Ground III)
In Ground III, Monteiro argues that his trial counsel’s failure to effectuate a clearly viable
defense of a third-party culprit amounts to ineffective assistance of counsel. D. 1 at 8; D. 2 at 11-
12; D. 23 at 4-5. Monteiro contends that the evidence against him was “overwhelmingly
circumstantial” and non-conclusive, including because a witness “could not and did not directly
identify [him] as th[e] suspect” seen leaving the area of the crimes, “evidence [was] introduced
that [his] cell phone was more than [five] miles away from where the crime took place at the time
of the crime,” and the police had photographic evidence of the crime scene that another car
matched the partial license plate seen by a witness. D. 1 at 8.2
2 To the extent Monteiro argues that the Massachusetts Appeals Court’s failure to consider
“contrary evidence offered by the other side to rebut or cast doubt,” D. 2 at 12; D. 23 at 5, and its
decision violated his right to “a meaningful opportunity to present a complete defense,” D. 2 at 12
(and cases cited), this argument is deemed waived as it was not asserted in the Petition. See Logan
v. Gelb, 790 F.3d 65, 70 (1st Cir. 2015) (concluding that argument not raised in habeas petition
was waived). Additionally, because this claim was not “fairly presented” in state court, see
Sullivan, 840 F. Supp. 2d at 434, it was not exhausted. See Clements, 485 F.3d at 162.
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 14 of 21

15
To establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984), Monteiro must show: “(1) deficient performance by counsel (2) resulting in
prejudice.” Yeboah-Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 2009) (quoting Malone v. Clarke,
536 F.3d 54, 63 (1st Cir. 2008)). When a defendant makes an “insufficient showing” on either
Strickland prong, “a court deciding an ineffective assistance claim” need not “address both
components of the inquiry.” Strickland, 466 U.S. at 687. To demonstrate deficient performance,
the petitioner must show that his counsel’s performance “fell below an objective standard of
reasonableness under the circumstances.” Yeboah-Sefah, 556 F.3d at 70 (quoting Sleeper v.
Spencer, 510 F.3d 32, 38 (1st Cir. 2007)). To demonstrate prejudice, a defendant must show “that,
but for counsel’s unprofessional error, there is a reasonable probability that the result of the
proceeding would have been different.” Id. (quoting Sleeper, 510 F.3d at 39).
A defendant has the constitutional “right to effective representation, not a right to an
attorney who performs his duties ‘mistake-free.’” Weaver v. Massachusetts, 582 U.S. 286, 300
(2017) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006)). A counsel’s
strategic decisions do not amount to ineffective assistance unless they are “so manifestly
unreasonable as to be unprotected by the labels of trial strategy or trial tactics.” Commonwealth
v. Adams, 374 Mass. 722, 728 (1978) (citations and internal quotation marks omitted).
When considering the Strickland standard as to a habeas petition, the question is not
whether counsel’s actions were reasonable, but instead whether there is “any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. That is,
“[t]he standards created by Strickland and § 2254(d) are both highly deferential, . . . when the two
apply in tandem, review is doubly so.” Id. (citations and internal quotation marks omitted).
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 15 of 21

16
1. The Massachusetts Appeals Court Decided Monteiro’s Claim of Ineffective
Assistance of Counsel on the Merits
The Massachusetts Appeals Court considered Monteiro’s arguments that his “trial counsel
was constitutionally ineffective because (1) trial counsel’s strategy was flawed because of its
propensity to inculpate the defendant, and (2) a number of errors by trial counsel cumulatively
deprived defendant of effective representation.” D. 28-1 at 528; Monteiro, 2022 WL 2674229, at
*2. Monteiro alleged that his trial counsel’s “strategy to show that every civilian witness was lying
worked to inculpate [him] rather than exculpate him[,]” that trial counsel “irrationally and fatally
conceded that [Monteiro] was the user of the phone that was close in proximity to the crime scene
a few minutes after the murders” and that trial counsel “made a number of missteps over the course
of the trial that cumulatively constituted ineffective assistance of counsel.” D. 28-1 at 529;
Monteiro, 2022 WL 2674229, at *3. The Massachusetts Appeals Court noted that Monteiro’s
arguments with respect to trial counsel’s various missteps lacked evidentiary support and “need
not be considered” because they were presented in a “cursory and conclusory fashion, and for the
most part without citation to supporting legal authority.” D. 28-1 at 529; Monteiro, 2022 WL
2674229, at *3. The court, however, still undertook “a thorough review of the record.” D. 28-1
at 529; Monteiro, 2022 WL 2674229, at *3. Accordingly, the Massachusetts Appeal Court’s
decision that “none of the individual instances raised [before it] resulted in a substantial risk of a
miscarriage of justice” qualifies as an adjudication on the merits. D. 28-1 at 529; Monteiro, 2022
WL 2674229, at *3. AEDPA “provides that on federal habeas review, the level of deference owed
to a state court decision hinges on whether the state court ever adjudicated the relevant claim on
the merits.” Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (citing 28 U.S.C. § 2254(d)).
While habeas review is typically deferential, absent an adjudication on the merits, de novo review
is appropriate. Id. at 52. When “a federal claim has been presented to a state court and the state
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 16 of 21

17
court has denied relief, it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary.” Harrington,
562 U.S. at 99. Thus, deferential review under 28 U.S.C. § 2254 is appropriate.
2. The Massachusetts Appeals Court’s Decision was not “Contrary to” or an
“Unreasonable Application” of Clearly Established Federal Law
The Massachusetts Appeal’s Court’s determination that Monteiro was not denied effective
assistance of counsel was not contrary to Strickland. Monteiro has not provided any factual
allegations to dispute the state court’s factual determinations or made a showing by clear and
convincing evidence, as required under 28 U.S.C. § 2254(e)(1), and this Court presumes those
determinations were correct. See 28 U.S.C. § 2254(e)(1).
For the purposes of habeas review, “[t]he Strickland standard qualifies as clearly
established federal law.” Janosky, 594 F.3d at 47. The Massachusetts Appeals Court analyzed
the Suffolk Superior Court’s denial of Monteiro’s second motion for a new trial, based on his claim
of ineffective assistance of counsel, under Commonwealth v. Saferian, 366 Mass. 89, 96 (1947).
D. 28-1 at 528-29. The First Circuit has established that “the Saferian standard is at least as
protective as, and functionally equivalent to, the Strickland standard and that the AEDPA
deference is appropriate in reviewing Massachusetts decisions applying Saferian.” Quintanilla v.
Marchilli, 86 F. 4th 1, 15 n.14 (1st Cir. 2023). Where, as here, the Massachusetts Appeals Court
determined that Monteiro failed to meet Saferian, he fails to meet Strickland. See Scarpa v.
Dubois, 38 F.3d 1, 7 & n.4 (1st Cir. 1994) (citing Commonwealth v. Fuller, 394 Mass. 251, 256
n.3 (1985)); see also Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (noting that “[t]his Circuit
has held that 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”).
Further, Montiero has also not identified a Supreme Court case, with facts that are materially
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 17 of 21

18
indistinguishable from his own, that reached a different conclusion from that of the Massachusetts
Appeals Court. See Malone v. Clarke, 536 F.3d 54, 63 (1st Cir. 2008) (explaining that for a habeas
petitioner’s case to “fall under the ‘contrary to’ category,” petitioner must have pointed to, or the
reviewing court must have found, a “Supreme Court case reaching a different result than the state
court in [the present case] involving materially indistinguishable facts”).
The Massachusetts Appeals Court’s decision was also not an unreasonable application of
clearly established law. In analyzing whether Montiero’s trial counsel’s performance “[fell]
measurably below that which might be expected from an ordinary fallible lawyer,” Saferian, 366
Mass. at 96, and whether that “likely deprived [him] of an otherwise available, substantial ground
of defence,” id., the court explained that it would conduct its review with “some deference” based
on a record demonstrating trial counsel’s strategic basis for its course of action. D. 28-1 at 528;
Monteiro, 2022 WL 2674229, at *2. The court noted Montiero’s trial counsel was an experienced
criminal defense attorney whose strategy was to undermine the Commonwealth by discrediting
key witnesses, including Docanto and Bryson, and “casting doubt that [Monteiro] was at the
location of the murders.” D. 28-1 at 529; Monteiro, 2022 WL 2674229, at *3. The Massachusetts
Appeals Court concluded that trial counsel’s strategy and decisions were reasonable, particularly
in light of the evidence and counsel’s awareness of the Commonwealth’s witnesses, and that trial
counsel’s performance “did not fall measurably below that of an ordinary fallible lawyer.” D. 28-
1 at 529; Monteiro, 2022 WL 2674229, at *3. The court determined that trial counsel’s concession
that Monteiro was the user of the cell phone in close proximity to the crime scene was not
“irrational since trial counsel was aware that the Commonwealth had a witness who would testify
that she bought the phone for the defendant and that she had spoken to him on that cell phone twice
on the day of the murders.” D. 28-1 at 529; Monteiro, 2022 WL 2674229, at *3; see Knight, 447
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 18 of 21

19
F.3d at 15 (explaining that “[i]t is only where, given the facts known at the time, counsel’s ‘choice
was so patently unreasonable that no competent attorney would have made it,’ that the ineffective
assistance prong is satisfied”) (quoting Strickland, 466 U.S. at 689). Applying Strickland, this
Court agrees with the Massachusetts Appeals Court’s conclusion and, thus, the appellate court’s
application of Saferian, the Massachusetts equivalent of Strickland, was not an “unreasonable
application” of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
Even assuming arguendo that Monteiro had shown that the failure to put forth a third-party
culprit defense was deficient, he has failed to show that he was prejudiced by it. See Yeboah-
Sefah, 556 F.3d at 70. The second prong of Strickland requires a showing that counsel’s deficient
performance prejudiced him, creating a reasonable probability that the outcome at trial would have
been different. Id.; see Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; United States v.
Messner, 37 F.4th 736, 741 (1st Cir. 2022) (same). After reviewing the evidentiary record, the
Massachusetts Appeals Court concluded that “none of the individual instances raised [before it]
resulted in a substantial risk of a miscarriage of justice, nor did they collectively impair the
defendant’s rights to a fair trial and due process.” D. 28-1 at 529; Monteiro, 2022 WL 2674229,
at *3. Relying upon Saferian, the court stated it did not discern prejudice to Monteiro on account
of his trial counsel’s conduct and concluded “there was no error in denying the defendant’s second
motion for a new trial.” D. 28-1 at 529; Monteiro, 2022 WL 2674229, at *3. Monteiro makes no
arguments or showing with respect to how he was prejudiced by his trial counsel’s failure to raise
a third-party culprit defense or whether it is reasonably likely that the result would be different.
See D. 2 at 11-12; D. 23 at 4-5; Yeboah-Sefah, 556 F.3d at 70. Monteiro’s “cursory and
conclusory” arguments before the Massachusetts Appeals Court without supporting evidence or
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 19 of 21

20
legal authority did not persuade the appellate court that absent trial counsel’s alleged failures the
outcome would have been different. D. 28-1 at 529; Monteiro, 2022 WL 2674229, at *3. This
Court agrees. See Strickland, 466 U.S. at 695.
Accordingly, the Massachusetts Appeals Court’s decision is neither contrary to, nor an
unreasonable application, of clearly established law, and Monteiro’s ineffective assistance of
counsel claim, Ground III of the Petition, fails.
C. An Evidentiary Hearing is Not Warranted
In his memorandum in support of Grounds II and III, Monteiro cursorily requests an
evidentiary hearing on the two remaining claims in his Petition. D. 23 at 5. Federal judges
reviewing habeas petitions have discretion to grant evidentiary hearings where not explicitly
prohibited by Section 2254. Atkins v. Clarke, 675 F. Supp. 2d 200, 203 (D. Mass. 2009) (citing
Teti v. Bender, 507 F.3d 50, 61 (1st Cir. 2007)). Even where there is no bar to a hearing (as is the
case here), “the court must still determine whether Petitioner has shown that this is an exceptional
situation warranting an evidentiary hearing.” Atkins, 675 F. Supp. 2d at 204. Accordingly,
“[f]ederal evidentiary hearings seeking to rehear issues addressed by the state courts ‘ought to be
the exception, not the rule.’” Teti, 507 F.3d at 61 (quoting Pike v. Guarino, 492 F.3d 61, 70 (1st
Cir. 2007)). “In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations, which,
if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465,
474 (2007). Additionally, “[b]ecause the deferential standards prescribed by § 2254 control
whether to grant habeas relief, a federal court must take into account those standards in deciding
whether an evidentiary hearing is appropriate.” Id. Having considered same, the entirety of the
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 20 of 21

21
record along with analysis of Grounds II and III as discussed above, the Court concludes that an
evidentiary hearing is not warranted here.
V. Conclusion and Certificate of Appealability
For the foregoing reasons, the Court DENIES the Petition, D. 1. A petitioner may receive
a certificate of appealability only if he “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing is made when “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Based upon the analysis of the record and the applicable
law in this Memorandum and Order, the Court does not, at this juncture, conclude that reasonable
jurists would find its conclusion denying the Petition debatable or wrong. The Court, therefore, is
not inclined to issue a certificate of appealability but will give Monteiro until January 16, 2026 to
file a memorandum if he seeks to address the issue of whether a certificate of appealability is
warranted as to Grounds II and/or III in the Petition.
So Ordered.
/s Denise J. Casper
Chief United States District Judge
Case 1:23-cv-11609-DJC Document 30 Filed 12/16/25 Page 21 of 21