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Entry ID: 5859736

UNITED STATES COURT OF APPEALS
For the FIRST CIRCUIT
No. 14-1882
__________________________________
BRIAN J. PEIXOTO
vs.
MICHAEL A. THOMPSON, Superintendent of the
Massachusetts Correctional Institution at Concord

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF APPLICATION
FOR LEAVE TO FILE A SECOND OR SUCCESSIVE HABEAS PETITION

Preliminary Statement
Petitioner, Brian J. Peixoto (“Peixoto” or
“Petitioner”), submits this Reply Memorandum of Law in
further support of his Motion for Leave to File a Second or
Successive Habeas Petition Pursuant to 28 U.S.C. § 2244(b)
by a Prisoner in State Custody.

Without waiving any

arguments set forth in Peixoto’s opening papers, this Reply
Memorandum responds only to arguments made in Respondent’s
Opposition Memorandum dated October 6, 2014 (“R.Mem.”),
that require further response. 1

At the outset, Respondent incorrectly states in its
Opposition (p. 3) that Peixoto’s “gatekeeper” petition
seeking leave to appeal the denial of the subject new trial
motion was denied on January 28, 2013; to the contrary, the
petition was summarily denied on August 27, 2013, Duffly,
A. J. (see copy of decision, Ex. “C” to Peixoto’s
Appendix); also, no hearing was ever held on the Petition.
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Unable to refute Petitioner’s powerful factual showing
on the merits that he is actually innocent of the crime for
which he stands convicted——including expert affidavits that
the cause of death of the victim, 3-year old Christopher
Affonso, Jr., was from untreated injuries sustained in a
fall down the stairs ten (10) days before the child’s death
while in the sole care of the child’s mother, Ami Sneed——
Respondent resorts to a series of procedural arguments that
purportedly bar Petitioner’s application.
First, Respondent argues that Peixoto has not met the
requirements of 28 U.S.C. § 2244(b) because he has not
shown, with respect to his ineffective assistance of
counsel and public trial claims, either a new rule of
constitutional law that was previously unavailable, or,
that the facts underlying his claims could not have been
discovered previously, as required under 28 U.S.C. §
2244(b).

Second, Respondent claims that, in any event, a

second petition would be untimely under the one-year
statute of limitations for habeas claims; that the
ineffective assistance of counsel claim is unexhausted; and
that both claims were rejected on adequate and independent
state law grounds.

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Respondent’s claims are meritless, not only because
Peixoto has already established grounds for relief in his
opening papers, but because, as more fully set forth below,
Peixoto’s gateway claim of actual innocence is grounds
alone to overcome any procedural bar to filing the instant
Petition, whether because it is a successive petition,
untimely under AEDPA’s one-year statute of limitations, or
to overcome any independent state procedural bar from the
Single Justice’s denial of leave to appeal.

Accordingly,

the within motion for permission to file a second petition
should be granted.

ARGUMENT
RESPONDENT NEITHER ADDRESSES NOR REFUTES
PETITIONER’S GATEWAY CLAIM OF ACTUAL INNOCENCE AS
AN EXCUSE FOR ANY POSSIBLE PROCEDURAL DEFAULT OF PETITIONER
The Supreme Court has repeatedly affirmed the
importance of the “actual innocence exception” to keep a
channel open for review of otherwise defaulted claims to
avoid the “miscarriage of justice” that would result from
applying the prudential default doctrine despite compelling
claims of innocence.

See Goldman v. Winn, 565 F.Supp.2d

200, 214 (D. Mass. 2008), citing McClesky v. Zant, 499 U.S.
467, 494-495 (1991) (“If Petitioner cannot show cause, the
failure to raise the claim in an earlier petition may

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nonetheless be excused if he or she can show that a
fundamental miscarriage of justice would result from a
failure to entertain the claim”); Schlup v. DeLeo, 513 U.S.
298, 314-315 (1995) (“[Petitioner who] has been unable to
establish ‘cause and prejudice’ ..., may obtain review of
his constitutional claims . . . if he falls within the
‘narrow class of cases ... implicating a fundamental
miscarriage of justice,’ ” based on his “claim of
innocence”); Bousley v. United States, 523 U.S. 614, 623
(1998)(petitioner, who failed to establish “cause” to
excuse the default of his claim, should nevertheless be
permitted on remand “to attempt to make a showing of actual
innocence”).
In this case, Petitioner has amply demonstrated that
he is actually innocent of the crimes charged by his expert
affidavit evidence, and thus, in all events, he is entitled
to consideration and relief on the merits.
Nevertheless, Respondent, by its Opposition (pp. 414), does not even address Peixoto’s argument that his
“gateway” claim of actual innocence excuses any procedural
default, ignoring it almost entirely, as if the exception
does not exist.
The exception does exist as a matter of law and
excuses any possible procedural default by Petitioner.

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I.

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Peixoto’s Gateway Actual Innocence Claim Excuses
Any Procedural Default In Not Raising His Claims
In His Prior Petition.

Petitioner’s gateway actual innocence claim may excuse
any procedural default in not raising his ineffective
assistance of counsel and public trial claims in his prior
petition 2, including waiving the statutory restrictions for
successive petitions set forth in 28 U.S.C. § 2244(b) upon
which Respondent so heavily relies.
Thus, in Goldman v. Winn, supra, at 223, the district
court applied the actual innocence exception to excuse
defendant’s procedural default in a successive motion
context and granted § 2255 relief to a federal prisoner.
In so ruling, the court cited, inter alia, this Court’s
decision in United States v. Barrett, 178 F.3d 34, 53 (1st
Cir. 1999), suggesting that actual innocence can overcome
the procedural bar, although admittedly reserving an
express ruling on whether such a showing of actual

As to Petitioner’s public trial claim, for which
Respondent claims no showing has been made to excuse the
procedural default (R. Mem. p. 5), “. . .the new reliable
evidence of actual innocence does not necessarily need to
be ‘linked’ to a petitioner’s procedurally defaulted
claims. Although Schlup requires both a showing that there
are procedurally defaulted claims and a showing of actual
innocence to excuse the default . . [it does not] require a
showing that the evidence of innocence relates to, or is
linked to, the constitutional claims.” Brown v.
Singletary, 229 F.Supp.2d 1345, 1361 (S.D.Fla. 2002),
citing Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997).
2

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innocence could waive any statutory restrictions.

Entry ID: 5859736

See also

McClesky v. Zant, 499 U.S. at 494-495 (actual innocence
exception may excuse procedural default with a second
petition asserting a ground for relief that was available
when the first was filed).
Indeed, a claim of actual innocence is especially
compelling and should be a gateway to review on the merits
where, like here, the petitioner has alleged that due to
the ineffective assistance of counsel, he was deprived of
the very evidence which he now maintains establishes his
innocence.

Thus, a majority of circuit courts have

rejected the strict approach advocated by Respondent, that
Petitioner must demonstrate that the evidence upon which he
relies in support of his actual innocence “gateway” claim
must be “newly-discovered” and subject to a due diligence
requirement (see R. Mem. pp. 7-11).

Instead, the evidence

in question must merely be “newly presented”, i.e.,
genuinely and previously not presented to the trier of
fact.

As the Seventh Circuit in Gomez v. Jaimet, 350 F.3d

673 (7th Cir. 2003), explained:
While a petitioner claiming that his factual
innocence alone entitles him to habeas relief
must present newly discovered evidence, see
Herrera v. Collins, 506 U.S. 390 (1993),
[petitioner] is using actual innocence solely as
a basis, or a gateway, for having his otherwise
barred constitutional claims heard. The majority

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opinion in Schlup recognized this critical
distinction with respect to Herrara from the
outset of the case and we should not consider the
absence of a newly “discovered” requirement in
Schlup a mere oversight. Particularly in a case
where the underlying constitutional violation
claimed is the ineffective assistance of counsel
premised on a failure to present evidence, a
requirement that the new evidence be unknown to
the defense at the time of trial would operate as
a roadblock to the actual innocence gateway. . .
If procedurally defaulted ineffective assistance
of counsel claims may be heard upon a showing of
actual innocence, then it would defy reason to
block review of actual innocence based on what
could later amount to the counsel’s
constitutionally defective representation. The
burden for proving actual innocence in gateway
cases is sufficiently stringent and it would be
inappropriate and unnecessary to develop an
additional threshold requirement that was not
sanctioned by the Supreme Court. We agree with
the Eighth Circuit that merely putting a
different spin on evidence that was presented to
the jury does not satisfy the Schlup
requirements, see Bannister v. Delo, 100 F.3d
610, 618 (8th Cir. 1996), but if a petitioner
comes forth with evidence that was genuinely not
presented to the trier of fact then no bar exists
to the habeas court evaluating whether the
evidence is strong enough to establish the
petitioner’s actual innocence.
Id. at 679-680 (petitioner was not required to establish
that new evidence upon which he relied was “newly
discovered” in seeking to establish actual innocence to
overcome procedural default).

Accord Griffin v. Johnson,

350 F.3d 958 (9th Cir. 2003) (habeas petitioner is not
required to present newly discovered evidence, but only
newly presented evidence of actual innocence in order to

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overcome procedural default); Houck v. Stickman, 625 F.3d
88 (3d Cir. 2010) (“[I]f . . . evidence was not discovered
for use at trial because trial counsel was ineffective, the
evidence may be regarded as new provided that it is the
very evidence that the petitioner claims demonstrates his
innocence”); But see Armine v. Bowersox, 128 F.3d 1222,
1230 (8th Cir. 1997) (adopting “newly discovered” evidence
and due diligence standard).
Like Gomez, Peixoto has presented a “gateway” claim of
actual innocence, relying upon the Affidavits of Drs.
Laposata and Squier in support of his new trial motion,
establishing that cause of death was from untreated
injuries sustained by the victim in his fall down the
stairs 10 days before his death while in the sole care of
his mother, Ami Sneed——as well as the two corroborating
expert affidavits of Dr. Hua and Dr. Van Ee, which can also
can be considered, at least in support of Peixoto’s
(procedural) gateway claim of innocence, notwithstanding
Respondent’s frivolous (and unsupported) claim to the
contrary (R. Mem. p. 11, 14).

See Lopez v. Miller, 905

F.Supp.2d 42 (E.D.N.Y. 2012) (considering new evidence on
actual innocence gateway claim, only).

None of this

evidence was previously presented to the trier of fact.

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Accordingly, Peixoto’s claim of actual innocence is
sufficient ground to overcome any procedural bar to the
instant Petition, even though it is a successive petition.
II.

Peixoto’s Actual Innocence Claim Excuses Any
Procedural Default In Not Timely Filing The
Petition Within the AEDPA’s One-Year Statute of
Limitations.

Likewise, Petitioner’s gateway actual innocence claim
may excuse a petitioner’s procedural default in not filing
the instant Petition within one year under the AEDPA’s
statute of limitations, as held by the Supreme Court in
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013), a point
neither addressed nor refuted by Respondent in its
Opposition (R. Mem. pp. 15-19).

Accordingly, Petitioner’s

untimely filing is not a bar to relief.
III. Peixoto Has Exhausted His Ineffective Assistance
of Counsel Claim In State Court.
Respondent next frivolously claims that Petitioner’s
ineffective assistance of counsel claim is unexhausted
because the two corroborating expert affidavits of Dr. Hua
and Dr. Van Ee were not previously presented in state court
(R. Mem. pp. 19-22).

To the contrary, Petitioner has made

clear in his papers, citing Lopez v. Miller, supra, that he
is presenting these affidavits only in in support of his
procedural “gateway” claim of actual innocence, not in
support of his substantive claim that the state court erred

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in denying his new trial motion for which Petitioner relies
only upon the Laposata and Squier Affidavits.

Brown v.

Singletary, 229 F.Supp.2d 1348 (S.D.Fla. 2002)
(distinguishing substantive actual innocence claims from
procedural actual innocence claims, and permitting
consideration of new evidence on petitioner’s procedural
gateway innocence claim even though state court never heard
it).

New evidence like this can be considered in support

of a procedural “gateway” claim of innocence.

Id.; Lopez

v. Miller, 905 F.Supp.2d at 42 (considering new evidence on
procedural actual innocence gateway claim); see generally
House v. Bell, 547 U.S. 518, 537-538 (2006) (when deciding
the ultimate question of innocence, “the habeas court must
consider all the evidence, old and new, incriminating and
exculpatory” and then “make a probabilistic determination
about what reasonable, properly instructed jurors would
do”); Coleman v. Lemke, 739 F.3d 342 (7th Cir. 2014)(“The
new evidence may include ‘exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.’”) (quoting House,
id.).
Thus, there is no exhaustion problem at all since the
evidence is not submitted in support of Peixoto’s
substantive constitutional claims.

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an exhaustion problem——and there is not——Petitioner’s
actual innocence showing would excuse any procedural
default in this regard as well.

Brown v. Singletary, 229

F.Supp.2d at 1365-1366 (excusing procedural default in
failing to exhaust remedies in light of actual innocence
showing which “opens the gateway” to petitioner’s
substantive claims); Del Prete v. Thompson, __F.Supp.2d__,
2014 WL 296094 (N.D.Ill. 2014) (same).
IV.

Peixoto’s Actual Innocence Claim Excuses Any
Procedural Default In Complying With State Rules,
Including the Single Justice Finding that
Petitioner’s Claims Were Neither “New” Nor
“Substantial.”

Likewise, Petitioner’s gateway actual innocence claim
may excuse any default in complying with state rules,
including the SJC Single Justice’s findings denying the
gatekeeper petition that Petitioner’s claims were neither
“new” nor “substantial” (R. Mem. pp. 22-30).

Accordingly,

any default in complying with state rules is not a bar to
relief given Petitioner’s showing of actual innocence.
See, e.g., Gomez, supra; and see generally Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (“. . .an adequate and
independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas
petitioner can . . .demonstrate that failure to consider

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the federal claim will result in a ‘ “ ‘fundamental
miscarriage of justice.’ ”).
V.

Peixoto Has Demonstrated That When The New
Evidence Is Viewed As A Whole, No Reasonable
Factfinder Would Have Found Him Guilty Beyond A
Reasonable Doubt.

Finally, Peixoto’s actual innocence claim, supported
by four expert affidavits with new evidence that Petitioner
did not cause the alleged victim’s death, when viewed in
light of the evidence as a whole, would clearly be
sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the
underlying offense. 28 U.S.C. 2244 (b)(2)(B)(ii).

See

McQuiggen v. Perkins, 133 S.Ct. at 1928 (petitioner
asserting gateway actual innocence claim must demonstrate,
in light of new evidence, that “‘no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt.’”) (quoting Schlup, 513 U.S. at 329).
Although the actual innocence standard is demanding, “the
reviewing court need not, however, have “absolute certainty
about a petitioner's guilt or innocence” in order to find
that the petitioner has satisfied her burden at the gateway
stage.’”

Del Prete v. Thompson, supra, quoting Coleman v.

Hardy, 628 F.3d 314, 319 (7th Cir. 2010).

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As fully set forth in the accompanying affidavits of
Dr. Laposata, chief pathologist at Vanderbilt University,
and Dr. Squier, a neuropathologist of Oxford University
(Exs. “2” and “3” to the Motion), both establish, contrary
to the Commonwealth experts’ trial testimony, that the
young child’s injuries were caused by untreated injuries he
sustained falling down a staircase while in the sole care
of his mother, Ami Sneed, 10 days before his death, and
that this serious fall was associated with a fracture of
his clavicle and a serious fracture to his skull and
bleeding inside the head.

Because he survived the fall,

the child lived for 10 days experiencing and exhibiting
serious neurological problems, including the child’s being
“wobbly,” falling and stumbling on repeated occasions——
symptoms which were unexplained at the trial by the
Commonwealth experts——and are indicative of progressive
subdural hematomas occurring after the fall that then
subsequently caused the death of the child.
Squier Affidavit ¶ 7, p. 5:

See, e.g.,

“[I]t is clear that Christopher

had a fall ten days before his death which was serious
enough to cause a fracture of his right clavicle.

There is

also evidence that he was behaving abnormally and had
symptoms and multiple further falls or tumbles in the
period between the fall downstairs and his death. . . .”).

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Significantly, in Laposata’s and Squier’s respective
opinions, the Commonwealth experts’ conclusions that these
fractures and the subdural hematoma were not survivable for
any appreciable interval of time, and could ONLY be caused
by one or a series of blows, was simply incorrect.

See the

Laposata and Squier Affidavits in support of the Motion for
New Trial.
Further support for Peixoto’s “gateway” claim of
actual innocence has been submitted in two more
corroborating expert affidavits, including the Affidavit of
Dr. Zhongxue Hua (Ex. “4” to the Motion), a forensic
pathologist and neuropathological consultant, and the
Affidavit of Dr. Chris Van Ee, a biomechanical engineer
(Ex. “5” to Motion).
Dr. Hua indicates in his Affidavit, among other
things, that the victim’s serious skull fracture would not
necessarily have been immediately fatal, as the
Commonwealth’s experts contended at Peixoto’s trial, and
were consistent with injuries caused by the child’s fall
down the stairs 10 days before while in Ami Sneed’s sole
care.

The child’s appearing “wobbly” and “stumbling” in

the days after the fall was consistent with neurological
problems caused by head trauma and ensuing bleeding and
progressive hematomas occurring after the fall.

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further indicates that he had dealt with a very similar
skull fracture wound in his career which was not
immediately fatal as the Commonwealth experts maintained at
Peixoto’s trial.
Dr. Van Ee indicates in his Affidavit, among other
things, that a fall down the stairs could most definitely
cause the serious skull fracture sustained by the victim in
this case, and that the child’s collapse on the evening of
his death were consistent with the child’s injuries
predating January 22, 1996.

Further, the child had clearly

suffered a significant pre-existing injury and was showing
symptoms consistent with intracranial trauma prior to
January 22, 1996.

Finally, contrary to the Commonwealth’s

experts’ trial testimony, clinical case studies and
biomechanical testing show that falls of 3-5 feet are
sufficient to result in skull and intracranial trauma.
Respondent attempts to discredit Petitioner’s showing
by simply relying upon the state court’s findings denying
the new trial motion (R. Mem. pp. 12-13).

In denying the

motion for new trial, the trial judge acknowledged that,
“It may be possible for a skull fracture to cause
progressive subdural hematomas and death ten days later,”
(Decision, p. 6, Appx. Ex. “B”), but then unfairly
discounted the opinions of Drs. Laposata and Squier that

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the skull fracture, with attendant neurological symptoms in
the ten days thereafter, by stating that Laposata and
Squier “ignored” the evidence of the nature, size and
location of the skull fracture and recent trauma injuries
on Christopher’s head (Decision, p. 6).
To the contrary, Drs. Laposata and Squier considered
the relevant medical evidence, including the testimony from
the Commonwealth’s experts, Drs. Weiner and Newberger, and
reached completely opposite conclusions, as detailed in
their respective Affidavits.

See the Laposata and Squier

Affidavits, Exs. “2” and “3” to the supporting Declaration. 3

Respondent claims that, “there is no indication that Dr.
Squier “viewed the trial testimony or autopsy photographs”
(R. Mem. p. 12). To the contrary, Dr. Squier plainly
states in paragraph “4” of her Affidavit that she reviewed
both “the probable cause and trial testimony of Dr. Weiner”
(Affidavit, Ex. “3” to Motion). Indeed, Dr. Squier
considered, among other things, the autopsy report, the
probable cause and trial testimony of Dr. Weiner, a
surgical pathology report of Dr. Thaddeus Dryja, a state
police report, a toxicology report concerning Christopher,
and a neuropathology diagnosis of Dr. William Schone
(Squier Affidavit ¶ 4), as well as brought to bear her
considerable expertise and knowledge of relevant studies
concerning cause of death in young children. Dr. Laposata
considered, among other things, the autopsy report, autopsy
photos, the trial testimony of both Dr. Weiner and Dr.
Newberger, the trial testimony of Dr. Arcuri, (the
responding hospital physician), the probable cause
testimony of Dr. Weiner and Ami Sneed and the testimony of
Ami Sneed, as well as brought to bear his considerable
experience, knowledge, and application of studies in his
analysis of cause of death (Laposata Affidavit ¶ 3).
3

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Nor was evidence of a history of child abuse and Ami
Sneed’s description of the events that occurred, including
Sneed’s description of how Christopher “fell” down the
stairs while in her care, at all dispositive of Peixoto’s
claim, as the trial judge incorrectly found (see Decision,
p. 7), since the defense claimed that Christopher’s death
was caused by Sneed and her treatment of the child; most
significantly, that Christopher’s death was attributable to
untreated injuries from his fall down the stairs ten (10)
days before his death while in her care. 4
As to the age of bruising to Christopher’s head and
the skull fracture allegedly being “fresh” or “recent” as
claimed by the Commonwealth experts (see Decision, p.
7), including Dr. Newberger who, again, is not a
pathologist, Dr. Squier, a neuropathologist of considerable
expertise and repute with respect to head injuries in young
children, noted that: “. . . the timing of the head injury

Unavailing is Respondent’s reliance on the trial court’s
finding that “there is no plausibility to the suggestion
that this child’s death was caused by a two-step stairway
fall and a mid-forehead bruise ten days earlier” (R. Mem.
p. 14). As stated previously, Dr. Van Ee, who reviewed
varying descriptions of Ami Sneed regarding the stairway
fall——which, coincidentally, was serious enough to fracture
the child’s clavicle and cause ensuing neurological
symptoms of his appearing “wobbly” and “drunk”——indicates
that stairway falls of as little as 3 feet are sufficient
to result in skull and intracranial trauma (Van Ee
Affidavit, p. 8, Ex. “5” to Motion).
4

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was not fully considered at the autopsy or brain
examinations.

More detailed histological examination the

samples taken was necessary to look for altered blood
products and tissue reactions which would allow aging of
the bruises and fractures.

My own expertise is in

examination of the brain and I am surprised that no
histological study appears to have been undertaken.

Dural

samples should have been examined by histology paying
particular attention to evidence of older injury and tissue
reactive changes.” (Squier Affidavit ¶ 7, pp. 5-6).

Put

simply, there was a wholly inadequate basis for the
Commonwealth experts’ testimony concerning the age of the
skull fracture. 5

Contrary to Respondent’s assertion that “the fall as a
source of the victim’s injuries was a central part of the
defense at trial” (R. Mem. pp. 8, 18), there was no
meaningful defense exploration at trial of the fall as
causing the fatal head injuries, only a very brief exchange
with Dr. Weiner that the child had suffered a broken
clavicle in the fall two weeks prior to his death (see
Trial Transcript Vol. II, 237, lines 12 to 17), with no
linkage to subsequent bleeding within the skull as
established by Drs. Laposata and Squier (Exs. “2” and “3”
to Motion). Nor was the point raised in defense counsel’s
cross-examination of Dr. Newberger and/or the emergency
room doctor. Nor was any defense expert called to present
evidence——like the expert evidence here——that the child’s
death was caused by untreated injuries sustained in a fall
down the stairs 10 days before while in the mother’s sole
care.
5

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Accordingly, and notwithstanding Respondent’s claim to
the contrary, the Affidavits of Dr. Laposata and Dr.
Squier, whether standing alone and/or considered in
conjunction with the corroborating Affidavits of Dr. Hua
and Dr. Van Ee, establish by clear and convincing evidence
that no reasonable fact-finder would have found Peixoto
guilty of first degree murder.

A reasonable doubt is

raised by the new evidence which “opens the gateway” to
consideration of the merits of Petitioner’s constitutional
claims and which warrants allowance of the instant motion
for leave to file a successive petition for habeas corpus.
See, e.g., Del Prete v. Thompson, supra (petitioner’s
experts’ new showing that petitioner was not responsible
for 3-month old baby’s death, including because some of the
head injuries in question pre-dated the purported fatal
event by 2-to-4 weeks and were evidence of prior trauma at
a time while not in petitioner’s care, raised a reasonable
doubt that was sufficient to open the gateway to
petitioner’s substantive claims, including ineffective
assistance of counsel); Brown v. Singletary, supra at 1366
(petitioner established actual innocence claim by new
evidence implicating another person in the murder and the
falsity of petitioner’s confession, raising a reasonable
doubt in the court’s mind, “and [there] would be

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[reasonable doubt] in a reasonable jury’s collective mind,”
that petitioner was guilty of first degree murder).
Having overcome the procedural bar and made this
showing on the merits, leave should be given permitting
Peixoto to file his new Petition asserting his ineffective
assistance of counsel claim and the public trial claim.
CONCLUSION
WHEREFORE, the within Motion should be allowed.

/s/ Donald A. Harwood
DONALD A. HARWOOD, ESQ.
BBO# 225110
First Circuit No. 11573
7 Railroad Avenue
Chatham, NY 12037
(518) 392-0700

Certificate of Service
I, Donald A. Harwood, hereby certify that this
document filed through the ECF system will be sent
electronically to the registered participants as identified
on the Notice of Electronic Filing (NEF), on October 14,
2014.

/s/ Donald A. Harwood
DONALD A. HARWOOD

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