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Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
the
SJC's
decision
in
Rodriguez,
the
Marshall moved to
-2-
Id.
Marshall filed a petition for habeas relief under 18
232, 236 (D. Mass. 2013). The district court accepted petitioner's
double jeopardy argument.
Id. at 235-36.
In addition, the
district court held that a newly asserted and hence unexhausted "ex
post facto law" argument did not preclude it from granting relief.
Id. at 234 & n.1.
The issuance of
-3-
Rodriguez, 931
some
point,
Id. at 27.
an
Id.
argument
began
between
Marshall,
the victim spilled out into the street when they left Medeiros's
house.
When Carpenter got into his car and tried to drive away,
Id.
After driving
the car a short distance, the victim got out of the vehicle and
continued arguing with Tirado.
Id.
Id.
all of the men present attacked the victim, including one who hit
him with a tire iron.
Id. at 27-28.
Id. at 28.
and
when
unconscious.
Id.
police
arrived
they
found
him
bloody
and
Id.
Trial
The prosecution chose to indict Marshall as an accessory
before the fact to murder in the first degree under Mass. Gen. Laws
ch. 274, 2 ("Whoever aids in the commission of a felony, or is
accessory
thereto
before
the
fact
by
counselling,
hiring
or
the
manner
felon.").
provided
for
acts
punishment
the
before
the
murder
of
the
principal
committed,
the
Commonwealth
Id. at 40.
At the close of
-5-
Id.
to the SJC.
Id. at 40.
Id.
Given
Id. at
-6-
Id. at 43.
Id.
was
The
SJC
legally
concluded
insufficient
that
to
"because
warrant
the
a
evidence
finding
of
Id. at 43 n.34.
Marshall moved to
Id. at 42.
The justice reserved judgment and presented the issues to the full
SJC.
Id.
The SJC rejected Marshall's argument and concluded that
the second indictment was not barred by the Double Jeopardy Clause
as
incorporated.
The
SJC
began
from
the
proposition
that
the
two
are
different
species
of
the
same
crime."
The Marshall
Id. at 45.
Thus,
legislative
Marshall,
addressing
interpretation,
modified
question
Rodriguez's
of
state
interpretation
of
Rodriguez.
defendant
when
conviction
is
overturned
for
insufficient
Id. at 47-48.5
Id. at 48.
Id.
D.
Marshall v. Bristol
He also asserted
Id.
at 234.
The district court noted that petitioner's ex post facto
claim was not raised before the state court and had not been
exhausted. It held, however, without any supporting citation, that
"exhaustion is not required when the ground for the Writ is double
jeopardy."
was
prohibited
by
the
Double
Jeopardy
Clause
as
-11-
petition de novo.
2009).
Petitioner claims two grounds for relief in his 2241
petition.
claims
first
that
the
SJC's
decision
in
We reject it on the
merits nonetheless.7
Ordinarily, "[p]rinciples of comity and federalism push
in
favor
of
interference,
giving
a
state
meaningful
courts,
without
opportunity
to
premature
federal
consider,
and
if
an
unexhausted
claim
"if
it
is
perfectly
clear
that
the
Spargo v. N.Y.
State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003);
accord Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir. 1994) ("Younger
abstention is not jurisdictional, but reflects a court's prudential
In addition,
the Commonwealth has itself asked for dismissal on the grounds that
petitioner's
ex
post
facto
claim
is
without
merit
and
has
of
attaching
criminal
penalties
to
what
-15-
Double Jeopardy
It is black letter law that "the Double Jeopardy Clause
precludes a second trial once the reviewing court has found the
evidence legally insufficient."
Benton v. Maryland, 395 U.S. 784, 794-95 (1969) (holding that the
"double
jeopardy"
protection
of
the
Fifth
Amendment
was
between the crime charged in the indictment and the crime proved at
trial, the Double Jeopardy Clause is no bar to retrial.
See
Montana v. Hall, 481 U.S. 400, 404 (1987) ("It is clear that the
Constitution permits retrial after a conviction is reversed because
of a defect in the charging instrument.").
Rodriguez, were it standing alone, could be read as
giving conflicting signals. On the one hand, the decision does use
the phrase "the evidence was insufficient."
On
the other hand, the decision uses that phrase in the context of a
discussion emphasizing the mismatch between the crime charged in
the indictment and the crime proved at trial.9
In addition,
Rodriguez said:
[T]he indictment charged conduct that took place
"before the said felony was committed," an element
that we have stated is required under G.L. c. 274,
2, to establish guilt as an accessory before the
-16-
that
portion
of
the
indictment
alleging
murder,
without
to
be
ambiguous.
Marshall
resolved
any
ambiguity,
explaining:
Although the proof of liability at trial, and
the jury instructions that accompanied it,
would have sufficed if the defendant had been
indicted simply for the murder itself, they
were at variance with the wording of the
indictment. Although we did not employ this
term specifically, we essentially concluded in
Rodriguez . . . that such a variance was
fatal: the defendant was convicted of a crime
for which he had not been indicted.
977 N.E.2d at 48. Marshall held that the reversal in Rodriguez was
based upon a defect in the charging instrument, language of
"insufficien[cy]" notwithstanding.
And a federal habeas court is bound by that holding.
"[T]he meaning attached to an ambiguous prior reversal is a matter
of state law."
Massey,
437
U.S.
19
(1978)).
For
that
reason,
the
SJC's
Id. at
E.g., Wisconsin
that
case,
the
Florida
Supreme
Court's
initial
decision
Id. at 46.
that
the
defendant's
"successful
appeal
of
his
-18-
Id. at 46-47.
Id. at 47.
On like
-19-