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Barbosa v. Mitchell

United States Court of Appeals, First Circuit

January 28, 2016

HELDER BARBOSA, Petitioner, Appellant,
v.
LISA A. MITCHELL, SUPERINTENDENT, Respondent, Appellee

As Amended March 9, 2016.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Denise J. Casper, U.S. District Judge.

Elizabeth Doherty for appellant.

Christopher Hurld, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

Before Lynch, Selya, and Kayatta, Circuit Judges.

OPINION

Page 63

KAYATTA, Circuit Judge.

Helder Barbosa was convicted of first degree murder, armed assault with intent to murder, assault and battery with a dangerous weapon, and the unlicensed possession of a firearm. Commonwealth v. Barbosa, 457 Mass. 773, 933 N.E.2d 93, 99 & n.1 (Mass. 2010) (" Barbosa" ). The Supreme Judicial Court of Massachusetts (" SJC" ) affirmed his convictions, id. at 99, and the United States District Court for the District of Massachusetts subsequently denied Barbosa's petition for a writ of habeas corpus, Barbosa v. Gelb, No. 12-10764, 2014 WL 3897652, at *1 (D. Mass. Aug. 6, 2014) (" Gelb" ). Claiming that evidence provided by an expert witness who relied on and tendered work done by a non-testifying witness violated his clearly established right to confrontation under the Sixth Amendment to the United States Constitution, Barbosa appealed. For the reasons explained below, we affirm.

I. Background

The law requires us to accept the state court's findings of fact because Barbosa makes no showing that any of those facts are clearly and convincingly in error. McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc) (citing 28 U.S.C. § 2254(e)(1)). We therefore begin with a

Page 64

summary of those findings as set forth by the SJC in its opinion.

At approximately 7:00 PM on October 6, 2004, Geraldo Carbuccia and Edward Serret encountered Barbosa as they were walking in the Roxbury section of Boston. Barbosa, 933 N.E.2d at 99. Carbuccia had seen Barbosa only twice before, whereas Serret and Barbosa were better acquainted. Id. The three men walked to Robey Street, where Barbosa left Carbuccia and Serret to wait for him in an alleyway. Id. Returning five to ten minutes later, Barbosa pulled out a gun and shot Carbuccia in the shoulder from ten to fifteen feet away. Id. After falling to the ground, Carbuccia heard three or four more gunshots and then heard Serret say, " Dammit, you're going to kill me." Id. at 99-100.

Luis Sanches, an eyewitness, testified that he heard three or four shots on Robey Street and then saw Barbosa and Serret running from Robey Street onto Marshfield Street while punching each other. Id. at 100. After another gunshot, Serret fell to the ground while Barbosa continued to ...


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