APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Denise J. Casper, U.S. District Judge.
Max D. Stern, with whom Todd & Weld LLP was on brief, for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees.
Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
LYNCH, Circuit Judge.
Jose Rosario was convicted in September 2000 of the first degree shooting murder of Mario Cordova in Springfield, Massachusetts. He was sentenced to life imprisonment. There is no claim Rosario was the shooter. He was convicted because he ordered the shooting, which was carried out by a member of the Latin Kings gang subordinate to him. The state trial court denied his motion for a new trial, and the Supreme Judicial Court (SJC) affirmed his conviction. Commonwealth v. Rosario, 460 Mass. 181, 950 N.E.2d 407, 411 (Mass. 2011). That opinion contains a full recitation of the facts, to which we refer the reader.
Before us is Rosario's appeal from the district court's denial of his habeas corpus petition, a denial we review de novo. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006). If the state court had ruled on the due process claim raised by the petitioner, we would review the findings of the state high court through the deferential lens of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254. But we do not do so here. That is because, on our reading, the SJC did not address the precise constitutional due process issue presented here. One might consider, given the high quality of that court, whether that was because the issue was not clearly argued to it. But the Commonwealth has chosen not to defend on the basis that this claim was not exhausted before the SJC, and it is a close question whether the Commonwealth has waived reliance on the exhaustion requirement. See 28 U.S.C. § 2254(b)(3). Because we affirm the denial of the petition on the merits, we can bypass the exhaustion question. See id. § 2254(b)(2).
And so we review de novo the due process violation claim asserted in this case. See Hodge v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013); Clarke v. Spencer, 582 F.3d 135, 145 (1st Cir. 2009). The claim essentially is that the Commonwealth failed to disclose a document which was evidence of a possible cooperation agreement between one prosecution witness and the Commonwealth. Had the document been timely disclosed during or before trial, it could have been used to impeach the testimony of the witness, Luis Rodriguez, as described below, and, possibly could have shown the prosecution in a bad light for withholding evidence.
The Commonwealth does not dispute that the document was not disclosed, and it assumes in its brief that the document's production may have been favorable to the accused. However, the Commonwealth argues that the document was immaterial because its disclosure would not have affected the result of the proceeding. We find on this habeas petition, that had the document been timely disclosed to the defense, there is no " reasonable probability" that the result of the proceeding -- conviction -- would have been different. See Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Our confidence in the outcome of conviction is not undermined. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
A. The Suppressed Material
Rodriguez was a prosecution witness at trial and testified as an eyewitness to the shooting. He was ...