Quiles v. Gray

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOEL QUILES,
Petitioner,
v.
DEAN GRAY,
Respondent.
No. 1:23-CV-10497-PBS
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
CABELL, U.S.M.J.
I. INTRODUCTION
Petitioner 	Joel 	Quiles 	(“Quiles” 	or 	“the 	petitioner”) 	was
sentenced to life in prison after a state court jury convicted him
of first-degree murder. 	He contends that the trial court acquitted
him 	of 	the 	charge 	before 	the 	jury 	returned 	its 	verdict 	and 	the
jury’s 	verdict 	thus 	violated 	his 	right 	against 	double 	jeopardy.
He moves pursuant to 28 U.S.C. § 2254 (“Section 2254”) for a writ
of 	habeas 	corpus 	reversing 	his 	conviction. 	For 	the 	reasons
discussed below, I recommend that the petition be denied.
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II. RELEVANT BACKGROUND
A. Factual Background
The 	facts 	set 	out 	by 	the 	Massachusetts 	Supreme 	Judicial
Court’s (“SJC”) are as follows:1
1. 	Events 	leading 	to 	murder. 	On 	the 	night 	of 	May 	3,
2013, 	the 	victim 	[Johnathan 	Semedo], 	Kiara 	Arias,
Jonathan 	Alves, 	Alexander 	Gomes, 	Kristina, 	and 	Haley
went to a nightclub in Providence, Rhode Island. 	On the
way 	to 	Providence 	from 	Brockton, 	Arias 	received 	a 	call
from 	the 	defendant, 	during 	which 	the 	defendant 	learned
that Arias was with the victim.
Also on the night of May 3, the defendant invited Talis
Francisco 	to 	a 	party. 	Francisco's 	friend, 	Jordan
Shockley, 	drove 	them 	in 	a 	minivan 	along 	with 	the
defendant's 	two 	friends, 	Eric 	Claudio 	and 	Vladimir
Verdieu.
The 	victim's 	group 	left 	the 	nightclub 	and 	stopped 	at 	a
house 	party 	in 	Brockton. 	Arias 	had 	continued
communicating with the defendant before arriving at the
house 	party. 	The 	victim, 	Arias, 	Haley, 	and 	Alves 	went
into 	the 	house, 	but 	all 	except 	Arias 	left 	after 	about
fifteen 	minutes 	and 	went 	to 	Haley's 	apartment, 	also 	in
Brockton. 	A 	short 	time 	after 	the 	victim's 	group 	left,
the defendant's group arrived at the house party. 	Before
arriving 	at 	the 	house 	party, 	Claudio 	showed 	a 	gun 	to
Francisco 	and 	the 	defendant's 	group 	stopped 	at 	a
different 	house, 	where 	the 	defendant 	and 	his 	friends
went 	inside 	and 	came 	out 	with 	trash 	bags 	containing
clothes and shoes. 	The defendant, Verdieu, and Claudio
went 	into 	the 	house 	party. 	They 	stayed 	for 	around 	ten
minutes, 	during 	which 	time 	the 	defendant 	appeared
“aggravated.” 	The 	defendant's 	group 	then 	left 	with
Arias to go to Haley's apartment.
1 	In 	habeas 	proceedings 	initiated 	by 	a 	prisoner 	in 	state 	custody, 	“a
determination of factual issues by the State court should be presumed to be
correct.” 	28 U.S.C. § 2254(e)(1). 	The petitioner has “the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 	Id. 	The
petitioner does not challenge the SJC’s factual findings in his petition, and
in 	any 	case 	has 	not 	presented 	clear 	and 	convincing 	evidence 	to 	rebut 	the
presumption that the SJC’s factual findings are correct.
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Before Arias provided the address of Haley's apartment,
the 	defendant, 	Claudio, 	Verdieu, 	and 	Francisco 	spoke
outside the minivan for from ten to thirty minutes. 	The
defendant, Verdieu, Claudio, and Arias whispered in the
back 	seat 	during 	the 	drive, 	and 	Arias 	testified 	that
they were going to Haley's house “[t]o rob [the victim].”
2. 	Events 	at 	Haley's 	apartment. 	When 	the 	defendant's
group 	and 	Arias 	arrived 	at 	Haley's 	apartment, 	the
defendant 	instructed 	Arias 	to 	enter 	the 	apartment, 	to
leave 	the 	door 	open, 	and 	to 	tell 	him 	where 	people 	were
located 	inside. 	Haley's 	apartment 	had 	two 	staircases
leading 	to 	her 	third-floor 	apartment; 	one 	was 	an
interior 	staircase 	that 	opened 	in 	the 	living 	room, 	and
the 	other 	was 	an 	exterior 	staircase 	that 	opened 	in 	the
bathroom. 	Arias used the exterior staircase and entered
the bathroom, where she saw the victim, who was vomiting,
and Haley. 	Arias told Haley that she took a taxicab to
Haley's house. 	Haley invited Arias into the living room,
but 	Arias 	replied 	that 	she 	needed 	to 	charge 	her 	cell
phone and remained in the bathroom. 	Within a few minutes
of 	Arias's 	entering 	the 	apartment, 	the 	defendant,
Verdieu, 	Claudio, 	and 	Francisco 	used 	the 	interior
staircase 	to 	access 	Haley's 	apartment. 	The 	defendant
borrowed 	Francisco's 	knife 	to 	open 	the 	locked 	door 	to
the 	apartment, 	and 	he 	ordered 	the 	others 	to 	“get 	the
money.” 	Verdieu 	covered 	his 	face 	with 	a 	bandana, 	took
out a gun, and led the group into the apartment.
Gomes, Alves, and Kristina were sitting on the couch in
the living room when the defendant's group entered. 	The
defendant, 	Verdieu, 	and 	Claudio 	approached 	the
individuals on the couch, and Francisco remained in the
apartment's 	hallway, 	despite 	the 	defendant 	putting 	his
hand on Francisco's neck and asking him to get the money.
Verdieu pointed his gun at the individuals on the couch
and told them to empty their pockets. 	The defendant was
holding 	a 	knife 	in 	the 	open 	position 	at 	his 	side 	and
told the individuals on the couch that it was not a joke.
Gomes and Alves handed over some items.
The 	victim 	was 	not 	with 	the 	others 	in 	the 	living 	room
for the initial encounter, and when he entered the living
room, 	the 	defendant, 	Verdieu, 	and 	Claudio 	told 	him 	to
empty 	his 	pockets 	and 	Verdieu 	held 	a 	gun 	to 	his 	head.
The 	victim 	refused 	and 	pushed 	the 	gun 	away, 	at 	which
point a fight broke out.
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During 	the 	fight, 	the 	defendant 	stabbed 	the 	victim.
When Verdieu's gun went off into the ceiling, Francisco,
Claudio, Verdieu, and the defendant left the apartment,
got 	into 	Shockley's 	minivan, 	and 	told 	him 	to 	“go, 	go,
go, drive.” 	The victim's group also left the apartment
and gathered outside the home. 	The victim was bleeding,
had 	labored 	breathing, 	became 	unconscious, 	and 	later
died.
While 	driving 	the 	defendant's 	group, 	Shockley 	did 	not
see 	a 	knife, 	but 	he 	heard 	the 	defendant 	say, 	“Give 	me
the knife.” 	Francisco testified that the defendant was
holding 	Francisco's 	knife 	when 	the 	defendant 	left
Shockley's minivan. 	The victim's deoxyribonucleic acid
was found in Shockley's minivan near where the defendant
was sitting.
3. 	Cause of death. 	The medical examiner testified that
the 	victim 	died 	from 	his 	stab 	wounds. 	The 	victim 	had
stab wounds on his front and back and incised wounds on
his arm. 	The medical examiner noted that the stab wounds
on 	the 	victim's 	back 	were 	a 	different 	shape 	from 	the
ones 	on 	his 	front 	and 	opined 	that 	it 	was 	possible 	that
the wounds were caused by two different weapons.
Commonwealth 	v. 	Quiles, 	173 	N.E.3d 	1, 	5-7 	(Mass. 	2021) 	(internal
footnotes omitted).
B. Procedural Background
1. Trial Court Proceedings
The 	petitioner 	was 	indicted 	by 	a 	Plymouth 	County 	grand 	jury
for the: 	murder of Johnathan Semedo, armed assault of Semedo with
intent 	to 	rob, 	armed 	home 	invasion, 	assault 	and 	battery 	of
Johnathan 	Alves 	with 	a 	dangerous 	weapon, 	armed 	robbery 	of 	Alves,
and 	armed 	robbery 	of 	Alexander 	Gomes. 	(D. 	13-1, 	pp. 	146–151).2
2 The jury subsequently acquitted the petitioner of the armed robbery of Alves
and Gomes. 	(D. 13-1, p. 13) (D. 13-15, pp. 55-56).
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Trial began in October 2017. 	At the end of the trial, but before
the jury heard closing arguments, the jury was excused for the day
so 	that 	the 	trial 	judge 	could 	confer 	with 	counsel 	regarding 	the
jury instructions. 	(D. 13-12, p. 57).
The 	trial 	judge 	informed 	counsel 	that 	he 	would 	instruct 	the
jury on the following for murder in the first-degree: 	murder with
deliberate premeditation, murder with extreme atrocity or cruelty,
and 	felony 	murder 	with 	the 	predicate 	offenses 	of 	felony 	armed
robbery and armed home invasion. 	(D. 13-12, p. 59). 	On the theory
of 	felony 	murder, 	the 	trial 	judge 	clarified 	with 	the 	prosecutor
that 	felony 	murder 	could 	be 	predicated 	on 	armed 	home 	invasion 	or
armed 	robbery. 	(D. 	13-12, 	pp. 	58-59). 	The 	prosecutor 	responded
by 	suggesting 	that 	the 	trial 	judge 	define 	the 	elements 	of 	“armed
robbery” 	and 	“armed 	home 	invasion” 	as 	part 	of 	the 	instruction 	on
“felony murder with the predicate felonies being armed robbery and
armed home invasion.” 	(D.13-12, p. 60). 	The trial judge agreed,
and also identified a merger issue with armed home invasion as the
predicate 	offense 	for 	felony 	murder.3 	(D. 	13-12, 	pp. 	59-60).
3 A 	merger 	issue 	may 	arise 	when 	a 	first-degree 	murder 	charge 	is 	based 	on 	a
theory of felony murder as opposed to a theory of deliberate premeditation or
murder 	with 	extreme 	atrocity 	or 	cruelty. 	The 	merger 	doctrine 	limits 	“the
circumstances in which a felony may serve as the” predicate felony for felony
murder. 	Commonwealth v. Fredette, 101 N.E.3d 277, 284 (Mass. 2018). 	Thus, if
there is a merger between the underlying felony and first-degree murder, that
is, if the same conduct that constitutes the underlying felony also constitutes
the killing, then the issue arises and the defendant cannot be convicted under
the 	felony-murder 	rule. 	See 	Commonwealth 	v. 	Buth, 	101 	N.E.3d 	925, 	930–931
(Mass. 2018). 	To avoid a merger, the jury must determine that the defendant’s
conduct in committing the felony “is separate and distinct from the conduct
necessary to kill the victim.” 	Fredette, 101 N.E.3d at 287; accord Buth, 101
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Subsequently, 	the 	trial 	judge 	described 	a 	portion 	of 	the 	verdict
slip he planned to provide the jury to address this merger issue:
I’d 	like 	to 	work 	on 	the 	verdict 	slip 	in 	terms 	of 	the
questions. 	I think under felony murder there has to be
a 	question 	of 	which 	predicate 	felony 	it 	is 	and 	if 	it’s
– 	if 	they 	check 	armed 	home 	invasion, 	there 	has 	to 	be 	a
question 	did 	the 	defendant 	commit 	an 	assault 	upon 	a
person 	other 	than 	Johnathan 	Semedo. 	And 	I 	think 	there
also 	should 	be 	a 	question 	if 	yes, 	identify 	the 	person
assaulted.
(D. 13-12, pp. 64-65).
The following day (October 31), after closing arguments,
the trial judge instructed the jury on all three theories of
first-degree murder, namely deliberate premeditation, extreme
atrocity 	or 	cruelty, 	and 	felony 	murder. 	(D. 	13-13, 	pp. 	84-
106). 	The 	judge 	also 	explained 	that 	the 	jury 	“should 	check
appropriate box or boxes on the verdict slip as to each theory
on 	which 	you 	[the 	jury] 	agree 	unanimously.” 	(D. 	13-13, 	p.
85). 	The trial judge further defined the elements of felony
murder and included in his instructions the elements for both
armed 	home 	invasion 	and 	armed 	robbery.4 	(D. 	13-13, 	pp. 	91-
106).
N.E.3d at 931 (“[A] defendant can only be convicted of felony-murder if he . .
. commit[ed] a felony that is independent of the conduct necessary to cause the
victim’s death[,]” otherwise “the felony that caused the death ‘merges’ with
the killing and cannot be the predicate offense.”).
4 The judge also instructed the jury on the elements of assault and battery by
means of a dangerous weapon and assault with intent to rob. 	(D. 13-13, pp.
104–10). 	The jury was provided separate verdict slips for each charge. 	The
verdicts on these charges are not at issue.
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A. The First Verdict Slip for Murder
The 	trial 	judge 	read 	the 	following 	verdict 	slip 	into 	the
record 	in 	the 	presence 	of 	the 	jury 	before 	it 	was 	sent 	to
deliberate:
Commonwealth 	v. 	Joel 	Quiles, 	verdict, 	offense 	murder.
In 	the 	above-entitled 	case, 	the 	jury 	finds 	the
defendant. 	There 	are 	three 	choices. 	Box 	1 	is 	not
guilty, 	Box 	2 	is 	guilty 	of 	murder 	in 	the 	first 	degree.
Under that are three other boxes. 	And you are to check
the theory on which you find, if you find the defendant
guilty of murder in the first degree, you check one, two
or 	three 	boxes. 	The 	first 	box 	is 	by 	deliberate
premeditation 	and/or 	by 	extreme 	atrocity 	or 	cruelty
and/or felony murder.
If guilty of felony murder, identify the felony/felonies
which 	is 	or 	are 	the 	basis 	for 	felony 	murder. 	The 	top
box is armed robbery and/or armed home invasion. 	If you
check the box for armed home invasion, please answer the
following 	questions: 	One, 	did 	the 	defendant 	assault
another person other than Johnathan Semedo? 	The answer
is no or yes. 	Two, if your answer is yes, identify the
person or persons assaulted. 	And there are four boxes,
Johnathan 	Alves, 	and/or 	Alexander 	Gomes, 	and/or 	Haley
McKinnon, and/or Kristina Martinez.
The third box is guilty of murder in the second degree.
And 	this 	is 	the 	verdict. 	Then 	there’s 	a 	line 	for 	the
signature of the foreperson and the date.
(D. 13-13, pp. 119–120). 	This verdict slip was the first verdict
slip for the murder charge provided to the jury. 	(D. 1-5, p. 2).
The jury deliberated for the remainder of the day. 	(D. 13-13, pp.
123, 128-129).
The next day (November 1), the jury was once again instructed
on 	the 	following 	for 	first-degree 	murder: 	deliberate
premeditation, extreme atrocity or cruelty, and felony murder with
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the 	predicate 	offenses 	of 	armed 	robbery 	and 	armed 	home 	invasion.
(D. 	13-14, 	pp. 	38–61). 	The 	jury 	then 	continued 	deliberations.
(D. 13-14, p. 68). 	Thereafter, the jury returned the first verdict
slip, having checked the box for first-degree murder, then felony
murder, and then armed home invasion. 	The jury also answered “no”
to the special question of whether the defendant assaulted anyone
other 	than 	Semedo. 	(D. 	13-14, 	p. 	69). 	The 	jury 	left 	the 	other
boxes 	under 	first-degree 	murder 	and 	the 	box 	for 	second-degree
murder unchecked. 	(D. 1-5, pp. 2–3).
B. Events Between Murder Verdict Slips
With the jury still present in the courtroom, the trial judge
called counsel to the sidebar and informed them he “had a problem
with the verdict slip.” 	(D. 13-14, p. 69). 	He explained that:
Felony 	murder, 	and 	then 	armed 	home 	invasion, 	did 	the
defendant assault a person, Jonathan Semedo. 	They said
no. 	That’s the verdict. 	That is not — I think the issue
is 	now 	am 	I 	required 	to 	send 	them 	out 	to 	deliberate 	on
second [degree]? 	The answer is no, so that means there
is not a conviction on felony murder. 	So now the issue
is do I send them out to deliberate on second degree? 	I
think I do.
(D. 13-14, p. 69). 	Then, after a short recess, the court convened
another 	sidebar. 	(D. 	13-14, 	p. 	70). 	At 	the 	sidebar, 	the
prosecution 	argued 	that 	the 	jury 	should 	be 	reinstructed 	on 	“what
they need to find.” 	(D. 13-14, p. 70). 	The trial judge responded
with:
No, they answered the question. 	I think that’s why they
asked 	the 	question. 	I 	gave 	the 	instruction 	on 	merger.
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They 	didn’t 	understand 	the 	legal 	– 	they 	had 	some
confusion about that but they answered the factual issue
that 	the 	assault 	– 	he 	didn’t 	assault 	anyone 	other 	than
the 	decedent. 	And 	as 	a 	matter 	of 	law, 	that’s 	merger.
And he is not guilty of felony murder.
The issue is now I guess essentially that they made the
finding that would be sufficient for second degree. 	But
I 	think 	technically 	I 	need 	to 	have 	them 	go 	in 	and 	re-
deliberate 	because 	they 	haven’t 	found 	him 	guilty 	of
murder.
(D. 13-14, pp. 70–71). 	Defense counsel prompted the court to “find
that 	the 	sum 	total 	of 	[the 	jury’s] 	verdict 	slip 	is 	not 	guilty 	of
murder.” 	The trial judge refused and said, “No, that’s not true.”
(D. 	13-14, 	p. 	72). 	The 	trial 	judge 	then 	made 	the 	following
decision:
I think the proper legal instruction – I have given that
instruction, 	if 	they 	do 	not 	find 	him 	guilty 	of 	murder,
they are then to go on and consider second degree. 	And
that’s 	what 	I’m 	going 	to 	do. 	And 	I 	will 	make 	up 	a 	new
verdict slip. 	I’m going to instruct them that based on
questions that they asked, they have responded to, that
is not a conviction for first degree murder and they are
to return and deliberate on second degree.
(D. 	13-14, 	p. 	72). 	The 	sidebar 	ended, 	and 	the 	trial 	judge
addressed the jury with the following instruction:
Members of the jury, I have reviewed the verdict slip on
the 	indictment 	alleging 	murder. 	The 	special 	questions
that 	you 	have 	answered, 	those 	answers 	do 	not 	support 	a
conviction 	for 	first 	degree 	murder. 	And 	you 	are 	now
instructed 	to 	return 	to 	the 	jury 	room 	and 	consider
whether or not the defendant is guilty of second-degree
murder. 	We will prepare a new verdict slip for you that
will 	be 	brought 	in 	to 	you. 	But 	the 	only 	issue 	for 	you
to decide now is whether or not the defendant is guilty
or not guilty of second-degree murder.
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(D. 13-14, p. 73) (emphasis added). 	Relatedly, the first verdict
slip was marked for identification and sealed. 	(D. 13-1, pp. 451-
452, 475) (D. 13-14, p. 73).
The jury then resumed deliberations only on the murder charge
and, 	more 	specifically, 	only 	on 	the 	second-degree 	murder 	charge,
for approximately one hour before concluding its deliberations for
the 	day. 	(D. 	13-14, 	pp. 	73–74). 	In 	that 	regard, 	the 	jury 	was
provided with a second verdict slip on the murder charge that asked
the 	jury 	to 	determine 	whether 	Quiles 	was 	guilty 	or 	not 	guilty 	of
second-degree murder. 	(D. 1-5, p. 11). 	The jury did not reach a
verdict 	on 	the 	murder 	charge 	on 	November 	1. 	(D. 	13-14, 	p. 	74).
Concomitantly, 	the 	docket 	contained 	the 	following 	notation 	on
November 	1: 	“Verdicts 	returned 	found 	not 	guilty 	on 	1st 	degree
murder, jury provided new verdict slip to consider 2nd degree. 	No
verdict reached for the day jury sent home.” 	(D. 13-1, p. 12).
C. The Final Verdict Slip for Murder
The 	following 	morning 	(November 	2), 	the 	trial 	judge
immediately addressed the parties outside the presence of the jury.
(D. 	13-15, 	p. 	4). 	The 	trial 	judge 	informed 	counsel 	that 	he 	had
read 	Commonwealth 	v. 	Zekirias5 	and 	reconsidered 	his 	actions
5 Specifically, the trial judge relied on the following statement in Commonwealth
v. Zekirias, 819 N.E.2d 166 (Mass. 2004): 	“[W]hen ‘[f]aced with ambiguity on
a matter of ultimate significance, the correct procedure [for the judge] is to
decline to record the verdict . . . , call the jury’s attention to their apparent
misunderstanding of his instructions, and, after reinstruction, send the jury
out for further deliberations.’” 	Quiles, 173 N.E.3d at 13 (quoting Zekirias,
819 N.E.2d at 170).
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regarding 	the 	first 	verdict 	slip 	because 	what 	he 	did 	“was
tantamount 	to 	granting 	a 	directed 	verdict.” 	(D. 	13-15, 	p. 	4).
The 	trial 	judge 	stated 	his 	intention 	to 	correct 	his 	mistake 	and
send 	the 	jury 	back 	to 	deliberate 	on 	the 	other 	two 	theories 	for
first-degree murder, deliberate premeditation and extreme atrocity
or 	cruelty, 	as 	well 	as 	second-degree 	murder. 	(D. 	13-15, 	pp. 	4-
5).
Both 	defense 	counsel 	and 	the 	prosecution 	made 	arguments
regarding 	how, 	and 	on 	what, 	the 	trial 	judge 	should 	instruct 	the
jury. 	At 	the 	outset, 	defense 	counsel 	expressed 	his 	concern 	that
sending 	the 	jury 	back 	to 	deliberate 	raised 	“a 	question 	of 	double
jeopardy.” 	(D. 	13-15, 	p. 	6). 	The 	trial 	judge 	disagreed 	because
the jury “[had not] rendered a verdict.” 	(D. 13-15, p. 6).
The 	prosecution 	then 	argued 	that 	there 	had 	been 	no 	verdict
reached 	for 	first-degree 	murder, 	and 	the 	trial 	judge 	should
instruct 	the 	jury 	on 	the 	following: 	deliberate 	premeditation,
extreme 	atrocity 	or 	cruelty, 	felony 	murder-armed 	robbery, 	and
felony 	murder-armed 	home 	invasion. 	(D. 	13-15, 	p. 	6). 	The 	trial
judge responded that the jury’s answer to the special question was
a finding of fact, and to send the jury back “would be an intrusion
on 	[the 	jury’s] 	fact 	finding.” 	(D. 	13-15, 	p. 	8). 	After 	a 	short
recess, the prosecution changed its argument and instead requested
that 	the 	trial 	judge 	reinstruct 	the 	jury 	on 	first-degree 	murder
only 	for 	the 	following: 	deliberate 	premeditation, 	extreme
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atrocity or cruelty, and felony murder-armed robbery. 	(D. 13-15,
pp. 19–20). 	The prosecution argued that because the jury left the
boxes 	unchecked 	for 	deliberate 	premeditation, 	extreme 	atrocity,
and 	felony 	murder-armed 	robbery, 	there 	was 	no 	verdict 	on 	these
charges. 	(D. 13-15, p. 20).
Defense counsel argued that because the jury left these boxes
unchecked 	and 	because 	the 	verdict 	based 	on 	felony 	murder-armed
home 	invasion 	created 	a 	merger 	issue, 	Quiles 	was 	acquitted 	of
first-degree 	murder. 	(D. 	13-15, 	pp. 	17-18, 	21–22). 	Defense
counsel 	urged 	the 	court 	to 	have 	the 	jury 	continue 	to 	deliberate
only 	on 	second-degree 	murder. 	(D. 	13-15, 	p. 	23). 	In 	response,
the trial judge stated: 	“I think [the jury has not] made a decision
on the deliberate premeditation and extreme atrocity or cruelty.”
(D. 13-15, p. 23). 	Then, after hearing from the prosecution as to
why 	felony 	murder-armed 	robbery 	should 	be 	resubmitted, 	the 	trial
judge 	decided 	to 	resubmit, 	and 	reinstruct, 	the 	jury 	on 	first-
degree murder on the following: 	deliberate premeditation, extreme
atrocity or cruelty, and felony murder-armed robbery. 	(D. 13-15,
pp. 24–26).
Defense 	counsel 	objected 	and 	argued 	that 	if 	the 	trial 	judge
did as he proposed, he would be “effectively saying to this jury,
we don’t agree with what you did.” 	(D. 13-15, p. 27). 	The trial
judge 	responded, 	“No, 	I’m 	going 	to 	tell 	them 	I 	made 	a 	mistake.”
(D. 	13-15, 	p. 	27). 	Defense 	counsel 	again 	noted, 	“It’s 	a 	double
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jeopardy question.” 	(D. 13-15, p. 27). 	The trial judge responded,
“It isn’t. 	It isn’t. 	No verdict has been returned. 	I think this
is the time to correct the mistake.” 	(D. 13-15, pp. 27–28).
The 	jury 	was 	then 	brought 	into 	the 	courtroom, 	and 	the 	trial
judge made the following statement to the jury:
Again, 	I 	remind 	you 	that 	the 	verdict 	on 	the 	felony
murder, by your answer to the special question on armed
home 	invasion, 	the 	defendant 	cannot 	be 	convicted 	of
felony murder. 	And accordingly, there is no verdict in
this case on that indictment and you need to deliberate
further. 	I was mistaken in sending you out to deliberate
only on second degree.
You 	will 	be 	considering 	and 	deliberating 	on 	the 	theory
of 	first 	degree 	murder 	by 	deliberate 	premeditation,
extreme 	atrocity 	or 	cruelty, 	and 	felony 	murder 	armed
robbery, and also second degree murder.
And what I’m going to do now is give you a re-instruction
on the elements of those crimes.
(D. 	13-15, 	pp. 	31-32). 	After 	hearing 	the 	trial 	judge’s
instructions, 	but 	before 	the 	jury 	left 	the 	courtroom 	to 	resume
deliberations, 	the 	parties 	and 	the 	trial 	judge 	conferred 	at
sidebar. 	(D. 	13-15, 	p. 	47). 	The 	prosecution 	requested 	that 	the
jury be instructed on attempt because the trial judge’s instruction
on 	felony 	murder 	noted 	that 	the 	predicate 	offense 	could 	also 	be
satisfied 	by 	an 	attempted 	commission 	of 	a 	felony. 	(D. 	13-15, 	p.
48). 	Following 	this 	discussion, 	the 	trial 	judge 	instructed 	the
jury 	on 	attempt, 	provided 	the 	jury 	with 	a 	chalk 	detailing 	the
elements of each of the murder theories, and sent the jury back to
resume deliberations. 	(D. 13-15, pp. 49-52). 	In that regard, the
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jury 	was 	provided 	with 	a 	third 	verdict 	slip 	for 	murder6 	that
included 	the 	following 	theories: 	deliberate 	premeditation,
extreme 	atrocity 	or 	cruelty, 	felony 	murder-armed 	robbery, 	and
second-degree murder. 	(D. 1-5, p. 22).
D. The Return of the Final Verdict for Murder
After 	deliberating 	for 	approximately 	an 	hour, 	the 	jury
returned with a verdict on the murder charge. 	(D. 13-15, pp. 54–
55). 	For 	the 	first 	time 	in 	the 	proceeding, 	one 	of 	the 	jury’s
verdict 	slips 	for 	the 	murder 	charge 	was 	announced 	in 	court.
Specifically, 	the 	jury 	announced 	in 	open 	court 	that 	it 	had 	found
the 	petitioner 	“guilty 	of 	murder 	in 	the 	first 	degree, 	felony
murder, 	armed 	robbery.” 	(D. 	13-15, 	pp. 	54–55). 	The 	docket 	also
reflected 	a 	verdict. 	(D. 	13-1, 	p. 	12) 	(docket 	sheet 	stating,
“Verdict 	affirmed, 	verdict 	slip 	filed” 	along 	with 	disposition 	of
the murder charge as a “guilty verdict”).7
6 	To 	be 	clear, 	the 	respondent’s 	memo 	refers 	to 	two 	verdicts: 	the 	“initial
verdict” and the “final verdict.” 	The “initial verdict” refers to the jury’s
finding 	of 	felony 	murder-armed 	home 	invasion 	that 	created 	the 	merger 	issue.
The “final verdict” refers to the jury’s finding of felony murder-armed robbery,
which was the verdict affirmed in court and entered onto the docket. 	In total,
however, the jury was provided with three verdict slips: 	the first verdict
slip that resulted in the “initial verdict” that was not accepted; the second
verdict slip that contained only the theory of second-degree murder; and the
third verdict slip that resulted in the “final verdict.”
7 The jury also found the petitioner guilty of armed home invasion and armed
assault of Semedo with intent to rob. 	(D. 13-15, pp. 56–58).
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2. SJC Proceedings
A. Direct Appeal
The 	petitioner 	directly 	appealed 	his 	conviction 	to 	the 	SJC.
Commonwealth v. Quiles, 173 N.E.3d 1 (Mass. 2021). 	He argued that
“the 	judge 	violated 	his 	constitutional 	protection 	against 	double
jeopardy by ordering the jury to continue deliberating on felony-
murder 	with 	the 	underlying 	felony 	of 	armed 	robbery.” 	Id. 	at 	5.
The 	prosecution 	countered 	that 	“because 	the 	jury 	[was] 	silent 	on
the 	other 	theories 	of 	murder, 	including 	felony 	murder 	predicated
on armed robbery, there was not a valid verdict and the defendant
remained in continuing jeopardy.” 	Id. at 13.
The 	SJC 	disagreed 	with 	the 	petitioner. 	It 	found 	that 	the
trial 	judge 	did 	not 	violate 	double 	jeopardy, 	and, 	most 	notably,
determined that there had not been an acquittal. 	Id. at 14. 	The
SJC 	referred 	to 	the 	Fifth 	Amendment 	and 	stated 	that 	an 	acquittal
occurs 	when 	“there 	is 	a 	ruling 	on 	‘the 	facts 	and 	the 	merits’ 	. 	.
. 	.” 	Id. 	(quoting 	Commonwealth 	v. 	Taylor, 	486 	Mass. 	469, 	481
(2020) 	(quoting 	Commonwealth 	v. 	Gonzalez, 	437 	Mass. 	276, 	282
(2002)). 	The relevant passage reads:
The 	Fifth 	Amendment 	to 	the 	United 	States 	Constitution
“mandates that a person cannot twice be put in jeopardy
for the same offence” (quotation and citation omitted).
Commonwealth 	v. 	Taylor, 	486 	Mass. 	469, 	477, 	159 	N.E.3d
143 (2020). 	See Benton v. Maryland, 395 U.S. 784, 794,
89 	S.Ct. 	2056, 	23 	L.Ed.2d 	707 	(1969) 	(Fifth 	Amendment
applicable 	to 	States). 	“Under 	the 	double 	jeopardy
doctrine, a defendant cannot be prosecuted a second time
for 	the 	same 	offense 	after 	having 	been 	acquitted.”
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Commonwealth v. Gonzalez, 437 Mass. 276, 281, 771 N.E.2d
134 (2002), cert. denied, 538 U.S. 962, 123 S.Ct. 1748,
155 	L.Ed.2d 	514 	(2003). 	See 	Commonwealth 	v. 	Hrycenko,
417 Mass. 309, 316, 630 N.E.2d 258 (1994). 	“An acquittal
occurs where there is a ruling on ‘the facts and merits’
. . . .” 	Taylor, supra at 481, 159 N.E.3d 143, quoting
Gonzalez, supra at 282, 771 N.E.2d 134.
Id. (emphasis added).
The 	SJC 	then 	explained 	“that 	silence 	on 	a 	verdict 	slip 	does
not amount to an acquittal.” 	Id. at 13–14 (citing Commonwealth v.
Niemic, 	483 	Mass. 	571, 	579 	(2019), 	which, 	in 	turn, 	adjudicated
double 	jeopardy 	claim) 	(additional 	citation 	omitted); 	id. 	at 	14
(“[J]ury’s 	initial 	verdict 	slip 	was 	silent 	on 	felony-murder
predicated 	on 	armed 	robbery” 	and 	“[t]hat 	silence 	does 	not 	amount
to 	an 	acquittal.”) 	(citing 	Niemic, 	483 	Mass. 	at 	579). 	Citing 	to
its own precedent, the SJC further stated that:
Silence 	by 	the 	jury 	on 	the 	verdict 	slip 	regarding
deliberate 	premeditation, 	extreme 	cruelty 	or 	atrocity,
and 	the 	armed 	robbery 	predicate 	to 	felony-murder
demonstrated 	only 	that 	the 	jury 	did 	not 	convict 	the
defendant 	on 	those 	theories; 	the 	silence 	did 	not 	shed
light 	on 	whether 	the 	jury 	reached 	any 	decisions
regarding those theories.
Quiles, at 14 (citing Commonwealth v. Carlino, 865 N.E.2d 767, 774
(Mass. 2007)).
The 	petitioner 	argued 	that 	the 	rule 	established 	in 	Carlino
should 	not 	apply 	because 	the 	jury: 	(1) 	did 	not 	initially 	check
the box for felony murder-armed robbery; (2) found that Quiles did
not assault anyone other than Semedo; and (3) acquitted Quiles of
armed robbery against Alves and Gomes, the only two armed robbery
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charges brought against the petitioner. 	Id. at 14. 	The SJC once
again disagreed. 	The court acknowledged that the jury did do more
than 	simply 	leave 	a 	box 	unchecked, 	“but 	their 	actions, 	and
combination 	thereof, 	[did] 	not 	amount 	to 	an 	acquittal,” 	and 	were
not 	enough 	to 	draw 	“a 	conclusion 	regarding 	the 	meaning 	of 	the
jury’s 	silence.” 	Id. 	(emphasis 	added). 	The 	SJC 	reiterated 	that
“[t]he 	factors 	cited 	by 	the 	defendant 	neither 	individually 	nor
cumulatively 	amounted 	to 	an 	acquittal 	on 	felony-murder 	with 	the
predicate of armed robbery . . .” 	Id. (emphasis added). 	This was
because 	the 	factors 	“did 	not 	demonstrate 	a 	unanimous 	decision 	by
the 	jury 	on 	that 	theory.”8 	Id. 	The 	SJC 	also 	explained 	that 	the
jury’s decisions as to the petitioner’s second and third enumerated
reasons 	above 	“did 	not 	exclude 	a 	finding 	of 	guilty 	of 	felony-
murder 	predicated 	on 	armed 	robbery.” 	Id. 	(citing 	Carlino, 	869
N.E.2d at 774). 	In that regard, the SJC reasoned that attempt to
commit 	an 	armed 	robbery 	against 	the 	victim 	was 	still 	a 	valid
predicate to felony-murder. 	Id. (citation omitted).
8 	Massachusetts 	law 	considers 	deliberate 	premeditation, 	extreme 	atrocity 	or
cruelty, 	and 	felony 	murder 	as 	three 	theories 	of 	first-degree 	murder. 	See
Commonwealth v. Denis, 814 N.E.2d 1080, 1083 (Mass. 1963) (stating “defendant
was convicted of murder in the first degree on all three theories (deliberate
premeditation, 	extreme 	atrocity 	or 	cruelty, 	and 	felony-murder”)). 	A 	first-
degree murder conviction on one theory does not preclude a conviction on another
theory. 	See 	Commonwealth 	v. 	Mercado, 	993 	N.E.2d 	661, 	672 	(Mass. 	2013)
(Notwithstanding absence of “acceptable basis to support a conviction of felony-
murder[,] . . . the evidence was more than sufficient to support the jury’s
conclusion that the defendant killed the victim with deliberate premeditation
and extreme atrocity or cruelty” and, thus, “the verdict of murder in the first
degree on those theories need not be disturbed.” (quoting Commonwealth v. Nolin,
859 N.E.2d 843, 854-855 (Mass. 2007)).
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The SJC ultimately concluded that the jury did not acquit the
petitioner 	of 	first-degree 	murder 	and 	“the 	judge’s 	instructions
did 	not 	violate 	the 	principles 	of 	double 	jeopardy.” 	Id. 	at 	13–
14.
B. Motion for Reconsideration
The petitioner moved for reconsideration. 	He argued that the
SJC overlooked well-settled, binding Supreme Court precedent that
the 	trial 	judge’s 	actions, 	as 	detailed 	above, 	amounted 	to 	an
acquittal on the first-degree murder charge on November 1. 	(D. 1-
5, 	pp. 	30-38) 	(D. 	13-1, 	p. 	18). 	The 	motion 	argued 	further 	that
the trial judge violated the Double Jeopardy Clause by permitting
the jury to resume deliberations on the first-degree murder charge
on November 2. 	(D. 1-5, pp. 36-37). 	On October 20, 2021, the SJC
summarily 	denied 	the 	motion 	for 	reconsideration 	without 	an
opinion. 	(D. 13-1, p. 19).
3. United States Supreme Court Proceeding
In January 2022, Quiles petitioned the United States Supreme
Court for a writ of certiorari, presenting the following question:
Where 	the 	trial 	judge 	(1) 	stated 	that 	the 	defendant 	is
“not 	guilty 	of 	felony 	murder;” 	(2) 	told 	the 	jury 	that
their 	answers 	to 	special 	questions 	on 	the 	verdict 	slip
“do 	not 	support 	a 	conviction 	for 	first 	degree 	murder;”
and (3) instructed the jury that the only question left
for them to decide was whether the defendant was “guilty
or 	not 	guilty 	of 	second 	degree 	murder,” 	did 	the
defendant’s 	subsequent 	conviction 	for 	first 	degree
felony 	murder 	violate 	his 	constitutional 	right 	against
double jeopardy?
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(D. 13-1, p. 661). 	The Supreme Court denied the petition on March
7, 2022. 	Quiles v. Massachusetts, 142 S. Ct. 1237 (2022).
III. THE HABEAS PETITION
The petition sets forth the following claimed violation:9
The petitioner’s double jeopardy rights were violated when
the trial judge directed the jury to deliberate further on
first-degree murder the day after a court-ordered acquittal
on that charge.
(D. 	5, 	p. 	18). 	The 	respondent 	argues 	that 	the 	petitioner 	is 	not
entitled 	to 	relief 	because 	he 	failed 	to 	exhaust 	his 	state 	court
remedies, 	and 	because 	his 	claim 	fails 	even 	if 	reached 	on 	the
merits. 	As 	discussed 	below, 	the 	court 	finds 	that 	the 	petitioner
has exhausted remedies but his double jeopardy claim fails on the
merits.
IV. DISCUSSION
A. Exhaustion
1. Exhaustion Standard
Exhaustion, 	a 	matter 	of 	comity, 	requires 	the 	petitioner 	to
fairly present “the substance of his federal habeas claim to state
court before seeking federal review.” 	Balcacer v. Divris, 737 F.
Supp. 	3d 	114, 	123 	(D. 	Mass. 	2024) 	(citing 	Martens 	v. 	Shann, 	836
F.2d 	715, 	717 	(1st 	Cir. 	1988)). 	The 	petitioner 	bears 	the 	burden
of establishing that he exhausted his state court remedies. 	Pratt
9 The petition actually sets out two claims for relief, for violation of the
petitioner’s right against double jeopardy and his right to due process, but
the petitioner subsequently elected to rely solely on the double jeopardy claim.
(D. 5, p. 4, n.1).
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v. 	Riendeau, 	Case 	No. 	22-cv-247-SM-AJ, 	2025 	WL 	971688, 	at 	*4
(D.N.H. Mar. 5, 2025) (Petitioner has burden of proving “that state
remedies 	were 	exhausted 	. 	. 	. 	.”) 	(citation 	omitted). 	The
petitioner 	must 	not 	only 	present 	the 	factual 	and 	legal
underpinnings 	of 	the 	federal 	claim 	to 	the 	state’s 	highest 	court,
Adelson 	v. 	DiPaola, 	131 	F.3d 	259, 	263 	(1st 	Cir. 	1997), 	i.e., 	the
SJC, but he must do so “in such a way as to make it probable that
a 	reasonable 	jurist 	would 	have 	been 	alerted 	to 	the 	existence 	of
the 	federal 	question.” 	Sanchez 	v. 	Roden, 	753 	F.3d 	279, 	294 	(1st
Cir. 2014) (citation omitted).
The 	“focus 	centers 	on 	the 	likelihood 	that 	the 	presentation”
alerted 	the 	state 	court 	“to 	the 	claim’s 	federal 	quality 	and
approximate contours.” 	Coningford v. Rhode Island, 640 F.3d 478,
482 (1st Cir. 2011) (citation omitted) (emphasis added). 	Further,
“the 	exhaustion 	requirement 	is 	not 	satisfied 	if 	the 	habeas
petitioner presents new factual allegations in federal court that
transform a previous claim or cast it in a significantly different
light.” 	Jackson 	v. 	Marshall, 	634 	F. 	Supp. 	2d 	146, 	155 	(D. 	Mass.
2009) (quoting Gaskins v. Duval, 89 F. Supp. 2d 139, 142 (D. Mass.
2000) (concluding that petitioner failed to exhaust state remedies
where legal theory presented in federal court was same but evidence
was different)); see also Turner v. Fair, 617 F.2d 7, 11 (1st Cir.
1980) (dismissing habeas petition because theory upon which Sixth
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Amendment 	confrontation 	violation 	was 	premised 	had 	undergone
“material alteration” since presentation to state court).
In 	short, 	“if 	a 	petitioner 	‘presents 	new 	legal 	theories 	or
new factual allegations in federal court that transform his claim
or 	cast 	it 	in 	a 	significantly 	different 	light,’ 	the 	claim 	is 	not
exhausted.” 	Gagne v. Fair, 835 F.2d 6, 9 (1st Cir. 1987) (citation
omitted). 	However, 	a 	petitioner 	“is 	not 	precluded 	from 	some
reformulation of the claims made in state courts, since exhaustion
requires only that ‘the substance of a federal habeas corpus claim
must first be presented to the state courts.’” 	Lanigan v. Maloney,
853 F.2d 40, 44 (1st Cir. 1988) (citation omitted).
2. Analysis
In 	arguing 	that 	the 	petitioner 	has 	failed 	to 	exhaust 	his
claim, the respondent contends that the claim the petitioner raised
on direct appeal is both legally and factually different from the
claim 	raised 	in 	the 	federal 	habeas 	petition. 	(D. 	17, 	p. 	21).
According to the respondent, the petitioner argued on direct appeal
that the jury acquitted him of first-degree murder but contends in
this proceeding that the court ordered his acquittal. 	(D. 17, pp.
19-22). 	The court disagrees with the respondent for three reasons.
First, 	the 	court 	finds 	that 	the 	petitioner 	did 	present 	a
court-ordered 	acquittal 	claim 	to 	the 	SJC. 	His 	brief 	to 	the 	SJC
captioned the argument presented as “The Trial Judge’s Decision to
Order 	Further 	Deliberations 	on 	Felony 	Murder-Armed 	Robbery
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Violated Principles of Double Jeopardy.” 	(D. 1-5, p. 24) (emphasis
added). 	More, 	the 	body 	of 	the 	argument 	in 	the 	brief 	aligns 	with
the caption. 	(D. 1-5, p. 26) (arguing “trial judge’s decision to
order 	further 	deliberations 	on 	[felony 	murder-armed 	robbery]
violated 	principles 	of 	double 	jeopardy 	based 	on 	the 	totality 	of
the 	circumstances”) 	(emphasis 	added); 	(D. 	1-5, 	p. 	27) 	(arguing
“[i]t 	was, 	accordingly, 	a 	violation 	of 	settled 	double 	jeopardy
principles to order further deliberations on the theory of felony
murder-armed 	robbery 	where 	the 	jury 	had 	effectively 	acquitted
Quiles on that theory”) (emphasis added).
To be sure, the brief also recites the jury’s findings on the
first verdict slip, the jury’s failure to check the box for felony
murder, and the jury’s acquittal of the armed robbery of Alves and
Gomes, and also avers that the “combination of the jury’s initial
findings 	and 	verdicts 	should 	fairly 	be 	construed 	as 	an 	acquittal
of felony murder-armed robbery.” 	(D. 1-5, p. 27); see also (D. 1-
5, 	p. 	27) 	(noting, 	as 	means 	of 	showing 	preserved 	constitutional
error, 	that 	“[d]efense 	counsel 	repeatedly 	argued 	that 	permitting
any 	further 	deliberations 	on 	first 	degree 	murder 	would 	violate
principles 	of 	double 	jeopardy 	because 	the 	jury 	had 	effectively
acquitted Quiles”) (citations to record omitted).
Yet, even acknowledging the multiple references to the jury’s
purported 	role 	in 	acquitting 	the 	petitioner, 	these 	statements 	do
not materially change the fact that the caption of the petitioner’s
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argument, and the statements in the body of the argument that align
with 	that 	caption, 	effectuated 	a 	fair 	presentment 	of 	a 	court-
ordered 	acquittal 	claim. 	More, 	the 	brief 	included 	a 	nine-page
recital 	of 	the 	trial 	judge’s 	response 	to 	the 	first 	verdict, 	the
ensuing events on November 1, the trial judge’s decision to change
course 	on 	November 	2, 	the 	trial 	judge’s 	discussion 	with 	counsel
regarding 	that 	decision, 	the 	trial 	judge’s 	directive 	to 	the 	jury
to resume deliberations on first-degree murder, and the return of
the final verdict. 	(D. 13-1, pp. 53-62). 	Viewed as a whole, the
brief presented the factual and legal underpinnings of the court-
ordered 	acquittal 	claim 	in 	a 	way 	that 	made 	“it 	probable 	that 	a
reasonable jurist would have been alerted to the existence of the
federal 	question.” 	Montrond 	v. 	Divris, 	Civil 	No. 	4:24-cv-40032-
MRG, 2025 WL 388582, at *2 (D. Mass. Feb. 4, 2025) (citing Adelson,
131 F.3d at 262).
Second, 	because 	the 	petitioner 	presented 	the 	court-ordered
acquittal double jeopardy claim to the SJC, it is presumed the SJC
adjudicated the merits of that claim. 	See Harrington v. Richter,
562 U.S. 86, 99 (2011). 	As stated unequivocally in Richter, “When
a federal claim has been presented to a state court and the state
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.”
Id. 	The 	Richter 	presumption 	is 	strong 	and 	“may 	be 	rebutted 	only
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in 	unusual 	circumstances.” 	Johnson 	v. 	Williams, 	568 	U.S. 	289,
301–302 	(2013). 	In 	the 	case 	at 	bar, 	the 	petitioner’s 	brief
presented 	the 	federal 	court-ordered 	double 	jeopardy 	claim 	on 	the
merits, the SJC denied the claim, and the record fails to reflect
a 	procedural 	principle 	that 	would 	preclude 	a 	merits-based
adjudication by the SJC.
Third, 	the 	SJC 	did 	not 	distinguish 	between 	a 	so-called 	jury
acquittal 	and 	a 	court-ordered 	acquittal; 	rather, 	it 	focused 	only
on 	whether 	an 	“acquittal” 	had 	occurred. 	This 	treatment 	suggests
at 	a 	minimum 	that 	the 	SJC 	did 	not 	view 	any 	distinction 	between 	a
“jury acquittal” or a “court-ordered acquittal” to be meaningful.
See Quiles, 173 N.E.3d at 12-15. 	Indeed, the SJC’s decision does
not 	mention 	a 	“jury 	acquittal” 	or 	a 	“court-ordered 	acquittal” 	at
all. 	Id.
In sum, the petitioner has met his burden of showing that he
exhausted 	the 	habeas 	petition’s 	court-ordered 	acquittal 	double
jeopardy claim.
B. Merits of the Double Jeopardy Claim
1. Legal Standard
Under 	the 	Anti-Terrorism 	and 	Effective 	Death 	Penalty 	Act 	of
1996 (“AEDPA”), a federal court may grant habeas relief on claims
that 	have 	been 	adjudicated 	on 	the 	merits. 	28 	U.S.C. 	§ 	2254(b);
see 	also 	Yeboah-Sefah 	v. 	Ficco, 	556 	F.3d 	53, 	70 	(1st 	Cir. 	2009)
(“[W]here the petitioner’s claim was adjudicated on the merits by
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the 	state 	court, 	. 	. 	., 	petitioner 	must 	also 	satisfy 	the 	AEDPA
standard.”). 	It is presumed the SJC adjudicated the merits of the
double 	jeopardy 	claim 	and 	that 	presumption 	is 	not 	rebutted. 	See
Richter, 562 U.S. at 99.
Under 	the 	AEDPA, 	a 	federal 	court 	may 	grant 	a 	writ 	of 	habeas
corpus if the underlying state court adjudication:
(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.
28 	U.S.C. 	§ 	2254(d)(1)–(2) 	(emphasis 	added). 	The 	petitioner
invokes 	the 	first 	clause 	of 	section 	(d)(1) 	and 	argues 	that 	the
SJC’s decision was contrary to clearly established federal law.10
10 To be clear, the petitioner also argues for the first time in his reply brief
that 	the 	SJC’s 	adjudication 	resulted 	in 	a 	decision 	that 	involved 	an
“unreasonable application” of clearly established federal law under the second
clause of section 2254(d)(1). 	The court deems this argument waived and declines
to consider it. 	A reply brief is not the proper place to raise an argument
that could have been raised in the supporting memorandum. 	Garrey v. Silva,
Civil Action No. 03-10562-NMG, 2020 WL 13830490, at *2, n.5 (D. Mass. Oct. 5,
2020) (section 2254 petition collecting authority that new arguments raised in
reply brief are waived); Rousseau v. Clark University, Case No. 22-cv-40118-
DJC, 2023 WL 3435570, at *3 (D. Mass. May 12, 2023) (“declining to address new
arguments 	in 	reply 	memorandum 	‘that 	could 	have 	been 	raised 	in 	a 	supporting
memorandum’” (quoting Noonan v. Wonderland Greyhound Park Realty LLC, 723 F.
Supp. 2d 298, 349 (D. Mass. 2010))). 	In addition, the petitioner unequivocally
stated 	in 	his 	initial 	supporting 	memorandum 	that, 	“In 	the 	instant 	case,
petitioner relies on the first clause (‘contrary to’), 	so the second clause
need not be addressed herein.” 	(D. 5, p. 25, n.10) (emphasis added). 	Moreover,
the petitioner was and is represented by highly experienced counsel who are
well-versed in the law and the facts. 	The petitioner has therefore waived any
argument 	that 	the 	SJC’s 	decision 	rested 	on 	an 	unreasonable 	application 	of
clearly established federal law. 	Padula v. Freedom Mort. Corp., Civil Action
No. 1:19-cv-11666-ADB, 2020 WL 4040725, at *4 (D. Mass. July 17, 2020) (stating
party waived argument raised for first time in reply brief) (citation omitted).
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A 	state 	court 	decision 	is 	“contrary 	to” 	clearly 	established
Supreme 	Court 	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.’” 	St. Jean v. Marchilli, 116 F.4th 71, 78 (1st Cir. 2024)
(quoting 	Williams 	v. 	Taylor, 	529 	U.S. 	362, 	413 	(2000)) 	(emphasis
added). 	Relatedly, a state court decision is contrary to “clearly
established 	federal 	law 	if 	it 	applies 	a 	legal 	rule 	that
contradicts” 	the 	“prior 	holdings” 	(as 	opposed 	to 	dicta) 	of 	the
Supreme Court. 	Ramdass v. Angelone, 530 U.S. 156, 165-166 (2000);
accord 	Price 	v. 	Vincent, 	538 	U.S. 	634, 	640 	(2003) 	(“[A] 	decision
by 	a 	state 	court 	is 	‘contrary 	to’ 	our 	clearly 	established 	law 	if
it ‘applies a rule that contradicts the governing law set forth in
our cases’ . . . .”).
2. Supreme Court Precedent
The Double Jeopardy Clause of the Fifth Amendment guarantees
that 	no 	person 	shall 	“be 	subject 	to 	the 	same 	offence 	to 	be 	twice
put 	in 	jeopardy 	of 	life 	or 	limb.” 	U.S. 	Const. 	amend. 	V. 	The
clause 	extends 	to 	state 	prosecutions 	through 	the 	Fourteenth
Amendment. 	Benton 	v. 	Maryland, 	395 	U.S. 	784, 	794 	(1969). 	The
clause “protects against a second prosecution for the same offense
after [an] acquittal . . . .” 	Justices of BMC v. Lydon, 466 U.S.
294, 306–307 (1984).
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Under 	clearly 	established 	law, 	an 	acquittal 	“actually
represents a resolution [in a defendant’s favor], correct or not,
of 	some 	or 	all 	of 	the 	factual 	elements 	of 	the 	offense 	charged.”
Smith 	v. 	Massachusetts, 	543 	U.S. 	462, 	468 	(2005) 	(citing 	United
States 	v. 	Martin 	Linen 	Supply 	Co., 	430 	U.S. 	364, 	571 	(1977), 	and
Price, 	538 	U.S. 	at 	640) 	(additional 	citation 	omitted); 	Martin
Linen, 430 U.S. at 571 (“[W]e must determine whether the ruling of
the 	judge, 	whatever 	its 	label, 	actually 	represents 	a 	resolution,
correct 	or 	not, 	of 	some 	or 	all 	of 	the 	factual 	elements 	of 	the
offense 	charged.”). 	Court-ordered 	acquittals 	qualify 	as
acquittals. 	Smith, 543 U.S. at 467 (“[W]e have long held that the
Double 	Jeopardy 	Clause 	of 	the 	Fifth 	Amendment 	prohibits
reexamination 	of 	a 	court-decreed 	acquittal 	to 	the 	same 	extent 	it
prohibits 	reexamination 	of 	an 	acquittal 	by 	jury 	verdict.”)
(collecting cases).
Moreover, 	a 	court-ordered 	acquittal 	premised 	on 	a 	mistake,
such 	as 	a 	misconstruction 	of 	a 	statute 	or 	an 	appellate 	court’s
mistaken 	belief 	that 	the 	trial 	judge 	had 	no 	power 	to 	enter 	a
judgment of acquittal, still constitutes an acquittal. 	See Evans,
568 	U.S. 	at 	315 	(“This 	Court 	has 	previously 	held 	that 	a 	judicial
acquittal premised upon a ‘misconstruction’ of a criminal statute
is an ‘acquittal on the merits that bars retrial.’”) (brackets and
ellipses 	omitted) 	(citing 	Arizona 	v. 	Rumsey, 	467 	U.S. 	203, 	211
(1984), 	as 	the 	previous 	holding); 	Fong 	Foo 	v. 	U.S. 	Standard 	Coil
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Products, Co., 369 U.S. 141, 143 (1962) (“Court of Appeals thought
. 	. 	. 	acquittal 	was 	based 	upon 	an 	egregiously 	erroneous
foundation,” 	i.e., 	that 	trial 	judge 	had 	no 	“power 	to 	direct 	the
judgment”; 	nevertheless, 	“(t)he 	verdict 	of 	acquittal 	was 	final,
and could not be reviewed without putting (the petitioners) twice
in jeopardy . . . .”) (citing United States v. Ball, 163 U.S. 662,
671 	(1896)); 	accord 	Martin 	Linen, 	430 	U.S. 	at 	571 	(stating
foregoing 	as 	Supreme 	Court’s 	“holding” 	in 	Fong 	Foo, 	369 	U.S. 	at
143); 	see 	also 	Yeager 	v. 	United 	States, 	557 	U.S. 	110, 	122 	(2009)
(quoting Fong Foo, 369 U.S. at 143).
It 	is 	also 	clearly 	established 	that 	“a 	verdict 	of 	acquittal
is final” and bars “a subsequent prosecution for the same offence.”
Green 	v. 	United 	States, 	355 	U.S. 	184, 	188 	(1957) 	(“[I]t 	has 	long
been settled under the Fifth Amendment that a verdict of acquittal
is 	final, 	and 	. 	. 	. 	is 	a 	bar 	to 	a 	subsequent 	prosecution 	for 	the
same offence.”).
Acquittals 	can 	encompass 	any 	number 	of 	scenarios. 	These
include “‘a ruling by the court that the evidence is insufficient
to 	convict,’ 	a 	‘factual 	finding 	that 	necessarily 	establishes 	the
criminal defendant’s lack of criminal culpability,’ and any other
‘ruling 	which 	relates 	to 	the 	ultimate 	question 	of 	guilt 	or
innocence.’” 	See 	Evans, 	568 	U.S. 	at 	318-319 	(citations 	and
internal brackets omitted). 	More, an acquittal is not “controlled
by the form of the judge’s action;” instead, courts “must determine
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whether 	the 	ruling 	of 	the 	judge, 	whatever 	its 	label, 	actually
represents 	a 	resolution, 	correct 	or 	not, 	of 	some 	or 	all 	of 	the
factual elements of the offense charged.” 	Martin Linen, 430 U.S.
at 571 (internal citations omitted).
3. 	The SJC’s Decision Was Not Contrary to Clearly
Established Law
The petitioner maintains that the SJC’s decision was contrary
to 	established 	Supreme 	Court 	precedent. 	According 	to 	the
petitioner, the trial judge effected a court-ordered acquittal on
November 1 by virtue of five events. 	Specifically, upon reviewing
the 	first 	verdict 	slip 	on 	the 	murder 	charge, 	the 	trial 	judge 	sua
sponte:
(1) stated to counsel that the defendant was “not guilty
of felony murder;” (2) told the jury that their answers
to special questions on the verdict slip “do not support
a 	conviction 	for 	first-degree 	murder;” 	(3) 	instructed
the jury that the only question left for them to decide
was 	whether 	the 	defendant 	was 	“guilty 	or 	not 	guilty 	of
second 	degree 	murder;” 	(4) 	issued 	a 	new 	verdict 	slip
limited solely to second degree murder; and (5) sent the
jury 	out 	to 	deliberate 	on 	second 	degree 	murder 	only-–
for over an hour-— before sending them home.
(D. 5, p. 26) (internal citations omitted).11 	Further, the docket,
as 	the 	petitioner 	notes, 	states: 	“Verdicts 	returned 	found 	not
11 The petitioner additionally relies on the trial judge’s own words that what
he did was “tantamount to granting a directed verdict.” 	(D. 5, p. 27) (Trial
judge “recognized that a court-ordered acquittal had occurred” and he “correctly
observed 	that 	his 	prior 	ruling 	was 	‘tantamount 	to 	granting 	a 	directed
verdict.’”). 	The petitioner’s reliance on the judge’s comments is misplaced.
That is because the trial judge’s characterization or labeling of his actions
as granting a directed verdict does not control. 	As explained in Evans:
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guilty 	on 	1st 	degree 	murder.”12 	(D. 	5, 	p. 	26). 	The 	respondent
maintains 	that 	the 	SJC’s 	conclusion 	that 	the 	petitioner 	was 	not
acquitted of first-degree murder under the first verdict slip was
not contrary to clearly established Supreme Court precedent. 	(D.
17, p. 25).
The 	petitioner 	contends 	specifically 	that 	the 	SJC’s
adjudication 	of 	his 	double 	jeopardy 	claim 	was 	contrary 	to 	the
Supreme 	Court’s 	decisions 	in 	Evans 	and 	Smith. 	The 	respondent
distinguishes 	those 	cases 	as 	inapt 	and 	counters 	that 	the 	SJC’s
decision 	aligned 	with 	the 	Supreme 	Court’s 	decision 	in 	Price 	v.
Vincent, 538 U.S. 634 (2003). 	As discussed below, the court finds
that 	the 	SJC 	did 	not 	apply 	a 	legal 	rule 	that 	contradicts 	the
holdings 	of 	Evans 	or 	Smith. 	Likewise, 	the 	SJC 	did 	not 	reach 	a
Our decision turns not on the form of the trial court’s action . . . If
a 	trial 	court 	were 	to 	announce, 	midtrial, 	“The 	defendant 	shall 	be
acquitted because he was prejudiced by preindictment delay,” the Double
Jeopardy Clause would pose no barrier to reprosecution, notwithstanding
the “acquittal” label. 	Here we know the trial court acquitted Evans, not
because it incanted the word “acquit” (which it did not), but because it
acted on its view that the prosecution had failed to prove its case.
Evans, 568 U.S. at 325 (internal citation omitted).
12 	The 	petitioner 	also 	argues 	that 	“the 	SJC’s 	decision 	utterly 	ignored 	the
statements and jury directives of the trial judge himself . . . .” 	(D. 5, p.
30) (emphasis added). 	This is so, he claims, because the SJC’s decision focused
on 	whether 	“the 	markings 	by 	the 	jury 	on 	the 	jury’s 	[first] 	verdict 	slip
themselves constituted an ‘acquittal.’” 	(D. 5, p. 30). 	The argument carries
no force. 	First, the SJC did not distinguish between a jury acquittal and a
court-ordered acquittal. 	Second, the SJC framed the petitioner’s argument as
“the judge violat[ing] his constitutional protection against double jeopardy”
and concluded that “the judge did not violate the principles of double jeopardy
. . . .” 	Quiles, 173 N.E.3d at 13-14 (emphasis added). 	Moreover, the SJC
recounted the trial judge’s actions step-by-step at the beginning of the opinion
and otherwise addressed his actions multiple times throughout the opinion.
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different 	result 	than 	Evans 	and 	Smith 	despite 	confronting
materially indistinguishable facts.
To begin, in Evans, the defendant moved for a directed verdict
of acquittal immediately after the prosecution rested on the ground
that the state had failed to prove an element of an arson statute.
568 U.S. at 316. 	The trial court granted the defendant’s motion.
Id. 	After the court granted the motion, it came to light that the
“unproven 	‘element’ 	was 	not 	actually 	a 	required 	element 	. 	. 	. 	.”
Id. 	at 	315. 	The 	Supreme 	Court 	granted 	certiorari 	to 	resolve 	the
question 	of 	“whether 	retrial 	is 	barred 	when 	a 	trial 	court 	grants
an 	acquittal 	because 	the 	prosecution 	had 	failed 	to 	prove 	an
‘element’ 	of 	an 	offense” 	which 	in 	actuality 	“it 	did 	not 	have 	to
prove.” 	Id. 	at 	317. 	Adhering 	to 	the 	precedent 	in 	Rumsey, 	467
U.S. 	at 	211, 	that 	“‘misconstruction’ 	of 	a 	criminal 	statute 	is 	an
‘acquittal,’” the Supreme Court “[held] that a midtrial acquittal
in 	these 	circumstances 	[was] 	an 	‘acquittal’ 	for 	double 	jeopardy
purposes as well.” 	Evans, 568 U.S. at 315-316 (citing Rumsey, 467
U.S. 	at 	211); 	see 	id. 	at 	330 	(“hold[ing] 	that 	Evans’ 	trial 	ended
in 	an 	acquittal 	when 	the 	trial 	court 	ruled 	that 	the 	State 	had
failed to produce sufficient evidence of his guilt”); see also id.
at 	324 	(judgment 	of 	acquittal, 	“‘however, 	erroneous’ 	it 	was,
precludes 	reprosecution 	on 	this 	charge 	. 	. 	. 	.”) 	(citation
omitted). 	The 	Supreme 	Court 	also 	noted 	that 	the 	trial 	court
granted 	the 	defendant’s 	motion 	“under 	a 	rule 	that 	requires 	the
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court to ‘direct a verdict of acquittal on any charged offense as
to 	which 	the 	evidence 	is 	insufficient 	to 	support 	a 	conviction.’”
Id. at 320.
The 	petitioner 	argues 	that 	Evans 	established 	that 	“[a]
mistaken 	acquittal 	is 	an 	acquittal 	nonetheless.” 	(D. 	5, 	p. 	20)
(quoting 	Evans, 	568 	U.S. 	at 	318-319). 	Per 	Evans, 	the 	petitioner
continues, the trial judge’s ruling of an acquittal “fell squarely
within the category of ‘a ruling by the court that the evidence is
insufficient 	to 	convict,’ 	a 	‘factual 	finding 	that 	necessarily
establishes 	the 	criminal 	defendant’s 	lack 	of 	criminal
culpability,’ and any other ‘ruling which relates to the ultimate
question 	of 	guilt 	or 	innocence.’” 	(D. 	5, 	p. 	26) 	(quoting 	Evans,
568 U.S. at 318-319) (internal brackets omitted). 	The petitioner
points out that the SJC recognized that an acquittal had occurred
when 	it 	stated 	“that 	‘limiting 	deliberations 	to 	murder 	in 	the
second 	degree 	would 	[have] 	be[en] 	akin 	to 	directing 	a 	verdict 	of
murder in the first degree.” 	(D. 5, p. 27)) (quoting Quiles, 173
N.E.3d at 16). 	The petitioner takes this language out of context.
The SJC was not addressing the double jeopardy claim. 	Rather, the
SJC 	was 	analyzing 	the 	trial 	judge’s 	instruction 	as 	coercive. 	In
any event, the import of the petitioner’s argument is that the SJC
recognized 	there 	was 	an 	acquittal 	but 	incorrectly 	overlooked 	it
because the acquittal finding was a mistake. 	(D. 5, p. 27).
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Here, contrary to the petitioner’s arguments, the SJC did not
apply a legal rule regarding an acquittal that contradicts Evans.
As 	already 	explained, 	the 	SJC 	implicitly 	recognized 	the 	correct
rule 	that 	“a 	defendant 	is 	acquitted 	only 	when 	‘the 	ruling 	of 	the
judge, 	whatever 	its 	label, 	actually 	represents 	a 	resolution 	[in
the 	defendant’s 	favor], 	correct 	or 	not, 	of 	some 	or 	all 	of 	the
factual 	elements 	of 	the 	offense 	charged.’” 	Taylor, 	486 	Mass. 	at
481 (emphasis added) (citation omitted); Quiles, 173 N.E.3d at 13
(quoting Taylor, 486 Mass. at 481 (quoting Gonzalez, 437 Mass. at
282)); 	see 	supra 	note 	12. 	More 	fundamentally, 	no 	Supreme 	Court
decision 	has 	held 	that 	an 	initial 	misinterpretation 	of 	a 	verdict
slip 	followed 	by 	a 	correction 	during 	ongoing 	jury 	deliberations
amounts to an acquittal. 	As noted, during deliberations, the trial
judge reevaluated his initial instruction that the jury’s answers
to 	the 	first 	verdict 	slip 	did 	not 	support 	first-degree 	murder.
And also during deliberations, he provided the jury with the third
verdict 	slip 	limited 	to 	the 	first-degree 	murder 	theories 	of
deliberate premeditation, extreme atrocity or cruelty, and felony
murder-armed 	robbery. 	Accordingly, 	the 	issue 	reduces 	to 	whether
the SJC decided the acquittal question differently than Evans based
on a set of materially indistinguishable facts. 	It did not.
First 	and 	perhaps 	most 	importantly, 	the 	trial 	judge 	did 	not
grant a motion for a directed verdict or its equivalent. 	In that
regard, 	when 	the 	petitioner’s 	counsel 	on 	November 	1 	prompted 	the
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trial 	judge 	to 	“find 	that 	the 	sum 	total 	of 	[the 	jury’s] 	verdict
slip 	is 	not 	guilty 	of 	murder,” 	the 	trial 	judge 	refused 	and 	said,
“No, that’s not true.” 	(D. 1-5, p. 8). 	Concomitantly, he did not
rule 	on 	a 	motion 	regarding 	the 	sufficiency 	of 	the 	prosecution’s
evidence.13 	Restated, 	the 	trial 	judge 	did 	not 	make 	a 	ruling,
correctly or incorrectly, on the sufficiency of the prosecution’s
evidence. 	Second, he did not make a ruling on an element of first-
degree murder. 	See Evans, 568 U.S. at 315-316. 	These distinctions
preclude a finding that the SJC decided the acquittal differently
than Evans based on materially indistinguishable facts.
In Smith, the defendant “moved for a required finding of not
guilty on [a] firearm count” at the conclusion of the prosecution’s
case, 	partly 	because 	the 	prosecution 	“had 	not 	prove[n] 	that 	the
gun 	barrel 	was 	less 	than 	16 	inches,” 	a 	required 	element 	of 	the
offense. 	Smith, 543 U.S. at 464-465. 	The trial judge granted the
motion 	at 	sidebar 	and 	endorsed 	the 	motion 	as 	“Filed 	and 	after
hearing 	Allowed 	. 	. 	. 	.” 	Id. 	at 	465. 	In 	doing 	so, 	the 	judge
pointed 	out 	“that 	there 	was 	‘not 	a 	scintilla 	of 	evidence’ 	that
[the 	defendant] 	had 	possessed 	a 	weapon 	with 	a 	barrel 	length 	of
less 	than 	16 	inches.” 	Id. 	The 	jury 	was 	not 	informed 	of 	the
13 After the Commonwealth rested, defense counsel stated, “I have no motions for
the Court and the defendant also rests.” 	(D. 13-14, p. 55).
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defendant’s 	acquittal 	on 	the 	firearm 	count.14 	Id. 	The 	docket
reflected the ruling. 	Id. at 466.
After 	the 	defendant 	presented 	and 	rested 	his 	case, 	the
prosecution 	brought 	to 	the 	court’s 	attention 	Massachusetts
precedent that suggested the prosecution had adequately satisfied
the 	firearm 	element. 	Id. 	at 	465. 	The 	trial 	judge 	then 	reversed
her 	previous 	ruling 	and 	allowed 	the 	firearm 	count 	to 	go 	to 	the
jury. 	Id.
Importantly, the “first question” the Supreme Court faced was
“whether 	the 	trial 	judge’s 	initial 	ruling 	on 	[the 	defendant’s]
motion 	was, 	in 	fact, 	a 	judgment 	of 	acquittal.” 	Id. 	at 	467. 	The
Supreme 	Court 	held 	that 	the 	trial 	judge’s 	ruling 	allowing 	the
defendant’s 	motion 	to 	enter 	a 	finding 	of 	not 	guilty 	was 	an
acquittal 	because 	“[i]t 	‘actually 	represent[ed] 	a 	resolution,
correct 	or 	not, 	of 	some 	or 	all 	of 	the 	factual 	elements 	of 	the
offense 	charged.’”15 	Id. 	at 	467-469 	(quoting 	Martin 	Linen, 	430
U.S. at 571) (additional citations omitted).
Here, the SJC did not arrive at a conclusion opposite to Smith
on a question of law. 	As part of the holding in Smith, the Supreme
Court set out the definition of an acquittal. 	See Smith, 543 U.S.
14 The trial continued because the defendant was charged with two other offenses.
Id. at 464, 469 n.3.
15 	The 	Court 	relatedly 	described 	the 	trial 	judge’s 	order 	as 	“a 	facially
unqualified midtrial dismissal of one count.” 	Id. at 473.
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at 	467-468 	(quoting 	Martin 	Linen, 	430 	U.S. 	at 	571) 	(additional
citations 	omitted). 	For 	reasons 	already 	explained, 	the 	SJC
implicitly 	adhered 	to 	and 	applied 	that 	same 	definition 	of 	an
acquittal. 	Quiles, 	173 	N.E.3d 	at 	13 	(“An 	acquittal 	occurs 	where
there 	is 	a 	ruling 	on 	‘the 	facts 	and 	merits’ 	. 	. 	. 	.” 	(quoting
Taylor, 	486 	Mass. 	at 	481)). 	Thus, 	the 	SJC 	did 	not 	apply 	a 	legal
rule that contradicted the holding in Smith.
The SJC also did not decide the acquittal question differently
than 	Smith 	based 	on 	a 	set 	of 	materially 	indistinguishable 	facts.
Notably, the trial judge did not grant a motion by the petitioner
for a required finding of not guilty. 	Again, when the petitioner’s
counsel asked the trial judge to “find that the sum total of [the
jury’s] 	verdict 	slip 	is 	not 	guilty 	of 	murder,” 	the 	trial 	judge
declined and said, “No, that’s not true.” 	(D. 1-5, p. 8). 	More,
the trial judge did not consider or rule on the sufficiency of the
prosecution’s 	evidence. 	Cf. 	Smith, 	543 	U.S. 	at 	467-468 	(stating
trial 	judge’s 	order 	entering 	not 	guilty 	finding 	based 	on
insufficient evidence of “[t]he ‘firearm’ element” requiring proof
of 	weapon 	“less 	than 	16 	inches” 	met 	definition 	of 	acquittal).
Rather, 	the 	trial 	judge 	evaluated 	the 	first 	verdict 	slip 	and
instructed the jury that the answers did not support first-degree
murder 	against 	the 	backdrop 	of 	ongoing 	deliberations.
Furthermore, the trial judge did not make a finding on an element
of first-degree murder. 	It is true that, like Smith, 543 U.S. at
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465-466, a docket entry reflected the trial judge’s actions. 	The
foregoing 	factual 	differences 	between 	this 	case 	and 	Smith,
however, 	preclude 	finding 	that 	the 	facts 	in 	this 	case 	are
materially indistinguishable from the facts in Smith.
In sum, the SJC’s acquittal decision was not contrary to Smith
or 	Evans. 	In 	addition, 	Price, 	which 	the 	respondent 	aptly 	relies
upon, 	is 	similar 	to 	the 	petitioner’s 	case, 	and 	the 	Supreme 	Court
ultimately 	resolved 	Price 	in 	favor 	of 	the 	respondent, 	not 	the
petitioner. 	Price, 	538 	U.S. 	at 	643 	(concluding 	“respondent 	did
not 	meet 	the 	statutory 	requirements 	for 	habeas 	relief”). 	The
decision therefore lends support to the conclusion that the SJC’s
acquittal 	decision 	was 	not 	contrary 	to 	either 	Smith 	or 	Evans 	and
was, moreover, consistent with the established precedent in Price.
In 	Price, 	the 	district 	court 	granted 	a 	petitioner’s 	habeas
petition 	after 	finding 	that 	a 	state 	trial 	judge’s 	statements
coupled 	with 	a 	docket 	entry 	amounted 	to 	an 	acquittal. 	The 	Sixth
Circuit affirmed but the Supreme Court reversed. 	Id. at 636-640,
643. 	In 	doing 	so, 	the 	Court 	determined 	that 	the 	decision 	by 	the
Michigan 	Supreme 	Court 	(“MSC”) 	was 	not 	contrary 	to 	clearly
established Supreme Court precedent. 	Price, 538 U.S. at 640.
In regard to the contrary-to determination, the MSC reviewed
the trial judge’s statements and held that the statements “did not
mature into a final judgment of acquittal of the charge.” 	People
v. 	Vincent, 	565 	N.W.2d 	629, 	632 	(Mich. 	1997); 	accord 	Price, 	538
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U.S. at 638 (MSC “reviewed the context and substance of the trial
judge’s 	comments 	and 	concluded 	that 	the 	comments 	were 	not
sufficiently 	final 	to 	constitute 	a 	judgment 	of 	acquittal
terminating 	jeopardy.”). 	The 	MSC 	noted 	that 	the 	trial 	judge’s
statements “regarding the issue of premeditation and deliberation
lacked the requisite degree of clarity and specificity.” 	Vincent,
565 	N.W.2d 	at 	636. 	The 	statements, 	which 	the 	trial 	judge 	made
“outside the hearing of the jury,” are as follows:
My 	impression 	at 	this 	time 	is 	that 	there’s 	not 	been 	shown
premeditation 	or 	planning 	in 	the, 	in 	the 	alleged 	slaying.
That 	what 	we 	have 	at 	the 	very 	best 	is 	Second 	Degree 	Murder.
. 	. 	. 	I 	think 	that 	Second 	Degree 	Murder 	is 	an 	appropriate
charge as to the defendants. 	Okay.
Price, 	538 	U.S. 	at 	637 	(internal 	brackets 	and 	quotation 	marks
omitted).
In analyzing the MSC’s decision as contrary to Supreme Court
precedent, the Supreme Court first determined that the MSC did not
apply 	a 	legal 	standard 	contrary 	to 	Supreme 	Court 	precedent. 	See
id. at 640 (“Nowhere did the Michigan Supreme Court apply a legal
standard contrary to those set forth in our cases.”). 	Second, the
Supreme 	Court 	concluded 	that 	the 	MSC 	did 	not 	“confront 	a 	set 	of
facts 	materially 	indistinguishable 	from 	those 	presented” 	in
Supreme Court precedents, stating:
Nor 	did 	that 	court 	confront 	a 	set 	of 	facts 	materially
indistinguishable from those presented in any of this Court’s
clearly established precedents. 	In Smalis and Martin Linen,
unlike in the present case, the trial courts not only rendered
statements 	of 	clarity 	and 	finality 	but 	also 	entered 	formal
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orders from which appeals were taken. 	476 U.S., at 142, 106
S.Ct. 1745, 430 U.S., at 566, 97 S.Ct. 1349.
Id. (emphasis added). 	Reframed, the MSC did not render a statement
of clarity and finality, and it did not enter a formal order from
which an appeal was taken.
Here, 	as 	in 	Price, 	the 	trial 	judge 	did 	not 	enter 	a 	formal
judgment 	of 	acquittal 	or 	a 	formal 	order 	from 	which 	an 	appeal 	was
taken. 	Likewise, 	there 	was 	no 	judgment 	that 	the 	prosecution’s
evidence 	was 	legally 	insufficient 	to 	convict. 	What 	is 	more, 	the
Price 	decision 	comports 	with 	the 	“continuing 	jeopardy” 	principle
which applies “where criminal proceedings against an accused have
not 	run 	their 	full 	course.” 	Lydon, 	466 	U.S. 	at 	308 	(citation
omitted); see id. (identifying “lack of finality” as one of three
interests supporting this principle).
Lastly, another similarity between Price and the petitioner’s
case is the fact that in both proceedings there was a docket entry
regarding 	the 	trial 	judge’s 	statements. 	See 	(D. 	13-1, 	p. 	12).
Indeed, the docket entries are quite similar. 	See Price, 538 U.S.
at 638 (“Motions by all atts16 for directed verdict. 	Court amended
c[oun]t: 	1 	open 	murder 	to 	2nd 	degree 	murder.”); 	(D. 	13-1, 	p. 	12)
(“Verdicts 	returned 	found 	not 	guilty 	on 	1st 	degree 	murder, 	jury
provided 	new 	verdict 	slip 	to 	consider 	2nd 	degree.”). 	Yet, 	the
16 Presumably, “atts” is shorthand for attorneys.
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docket entry in Price did not persuade the Supreme Court to decide
there was an acquittal. 	Price, 538 U.S. at 638-640.
The petitioner attempts to distinguish Price by pointing out
that his case was “not a situation where ‘the comments were never
discussed in front of the jury’ or where there was ‘no instruction
to 	the 	jury 	that 	a 	charge 	or 	element 	of 	the 	charge 	had 	been
dismissed,’ as in Price.” 	(D. 19, p. 19) (citing Price, 538 U.S.
at 637-638); accord (D. 5, p. 27). 	He points out that, in contrast
to 	Price, 	the 	trial 	judge 	told 	the 	jury 	that 	its 	answers 	on 	the
first 	verdict 	slip 	“do 	not 	support 	a 	conviction 	for 	first 	degree
murder” 	and 	that, 	“[t]he 	only 	issue 	for 	you 	to 	decide 	now 	is
whether 	or 	not 	the 	defendant 	is 	guilty 	or 	not 	guilty 	of 	second-
degree 	murder.” 	(D. 	5, 	p. 	27) 	(D. 	19, 	pp. 	15, 	19) 	(D. 	13-14, 	p.
73).
The 	petitioner’s 	argument 	is 	not 	patently 	unreasonable, 	but
it 	fails 	to 	persuade. 	These 	distinctions, 	while 	real, 	do 	not
materially 	detract 	from 	the 	similarities 	in 	Price 	that 	make 	it
instructive 	here, 	i.e., 	the 	absence 	of 	a 	judgment 	of 	acquittal,
the 	absence 	of 	a 	judgment 	that 	the 	prosecution’s 	evidence 	is
legally 	insufficient 	to 	convict, 	and 	the 	lack 	of 	a 	formal 	order
entered 	from 	which 	an 	appeal 	was 	taken. 	See 	Price, 	538 	U.S. 	at
640. 	Overall, 	the 	other 	above-noted 	similarities 	between 	Price
and this case remain, and they are impactful.
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In sum, Price aligns with the factual circumstances in Quiles.
As such, Price lends credence to this court’s conclusion that the
SJC’s 	decision 	in 	Quiles 	was 	not 	contrary 	to 	clearly 	established
law 	as 	determined 	in 	Evans 	and 	Smith. 	As 	previously 	explained,
the SJC did not apply a legal rule that contradicted the holdings
in 	Evans 	and 	Smith. 	The 	SJC 	also 	did 	not 	decide 	the 	case
differently 	than 	Evans 	and 	Smith 	based 	on 	a 	set 	of 	materially
indistinguishable facts.
V. 	CONCLUSION
In accordance with the foregoing, the court RECOMMENDS17 that
the habeas petition (D. 1) be DENIED.
__/s/ Donald L. Cabell_______
DONALD L. CABELL, U.S.M.J.
DATED: 	December 18, 2025
17 The parties are hereby advised that under the provisions of Federal Rule of
Civil Procedure 72(b), any party who objects to this recommendation must file
specific written objections thereto with the Clerk of this Court within 14 days
of 	the 	party's 	receipt 	of 	this 	Report 	and 	Recommendation. 	The 	written
objections 	must 	specifically 	identify 	the 	portion 	of 	the 	proposed 	findings,
recommendations, or report to which objection is made and the basis for such
objections. 	The parties are further advised that the United States Court of
Appeals for this Circuit has repeatedly indicated that failure to comply with
Rule 72(b) will preclude further appellate review of the District Court’s order
based on this Report and Recommendation. 	See Keating v. Secretary of Health
and 	Human 	Servs., 	848 	F.2d 	271 	(1st 	Cir. 	1988); 	United 	States 	v. 	Emiliano
Valencia-Copete, 792 F.2d 4 (1st Cir. 1986).
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