UNITED STATES COURT OF APPEALS

For the FIRST CIRCUIT
No. ____
__________________________________
BRIAN J. PEIXOTO
vs.
MICHAEL A. THOMPSON, Superintendent of the
Massachusetts Correctional Institution at Concord
________________________________
MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR LEAVE
TO FILE A SECOND OR SUCCESSIVE HABEAS PETITION PURSUANT
TO 28 U.S.C. § 2244(b) BY A PRISONER IN STATE CUSTODY
Preliminary Statement
Petitioner, Brian J. Peixoto (“Peixoto”), submits this
Memorandum of Law in support of his accompanying 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.

Under 28 U.S.C. § 2244(b):

[A] claim presented in a second or successive habeas
corpus application under [28 U.S.C.] section 2254 that
was not presented in a prior application shall be
dismissed unless(A) the applicant shows that the claim
relies on a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; or
(B) (i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and

(ii) the facts underlying the claim, if
proven and viewed in light of the evidence
as a whole, would 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.
As more fully set forth in the accompanying motion
papers, Mr. Peixoto was convicted on March 7, 1997, in the
Taunton Superior Court, Taunton, Massachusetts, of firstdegree murder in connection with the death of then threeyear old Christopher Affonso, Jr., who died on January 22,
1996.
Mr. Peixoto’s present Petition for Writ of Habeas
Corpus, for which leave to file is sought, is submitted in
connection with the state court’s decision dated January 2,
2013, Hely, J., denying a motion for new trial, which
raised claims that Peixoto’s right to the effective
assistance of counsel was violated by counsel’s failure to
fully investigate evidence concerning cause of death of the
alleged victim, and, the denial of Peixoto’s right to a
public trial by a closure of the courtroom during jury
selection.
In support of his motion in the state court (copy of
motion annexed in the accompanying Appendix as Ex. “A”),
Peixoto submitted recently obtained affidavits from two
world-renowned forensic pathologists, Dr. Michael Laposata,

2

chief pathologist at Vanderbilt University, and Dr. Waney
Squier, a neuropathologist of Oxford University, that the
young child’s serious injuries were caused by his falling
down a staircase while in the sole care of his mother, Ami
Sneed, ten (10) days before his ultimate death, and that
this fall was associated with a fracture of his clavicle
and the 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 are
indicative of progressive subdural hematomas occurring
after the fall that then subsequently caused the death of
the child.
Nevertheless, the state court denied Peixoto’s new
trial motion by Decision dated January 3, 2013 (copy of
decision annexed as Ex. “B” in the accompanying Appendix).
A petition for leave to appeal to a Single Justice of
the Supreme Judicial Court was denied by Decision entered
August 27, 2013, Hon. Fernande R.V. Duffly, J., who ruled
the claims were neither “new” nor “substantial” (see copy
of decision, Ex. “C” to Appendix).
Neither the Laposata nor Squier Affidavits, nor any
information like it, was presented at Peixoto’s trial.

3

Indeed, no defense expert was called as a witness at
Peixoto’s trial to testify concerning cause of death.
Nor were the Laposata nor Squier Affidavits, nor any
information like it, submitted in support of Peixoto’s
prior Petition for Writ of Habeas Corpus, which asserted
ineffective assistance of counsel only as to legal points,
which Petition was dismissed as untimely under AEDPA’s oneyear statute of limitations.
As more fully set forth herein and in the accompanying
Peixoto Affidavit, it was not until recently that Peixoto
learned, while viewing a Frontline program called “The
Child Cases” involving Dr. Laposata, that cause of death of
the alleged victim may have been from injuries sustained in
a fall down the stairs 10 days before while in in the sole
care of his mother.

Thereafter, Peixoto diligently pursued

contacting Dr. Laposata and other medical experts, as well
as the Massachusetts Committee for Public Counsel Services
(“CPCS”) Innocence Program to obtain counsel, in order to
obtain and present such information to the Court.

Once

such evidence was obtained, Peixoto promptly filed a state
court motion for new trial asserting it.
Accordingly, and as more fully set forth herein and in
the accompanying motion papers, the factual predicate for
Peixoto’s claim could not have been discovered by him

4

previously through the exercise of due diligence,
especially since he previously had been deprived of the
effective assistance of counsel and/or had no counsel
representing him at all.

Further, the facts underlying

Peixoto’s claim, if proven and viewed in light of the
evidence as a whole, would 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.
Alternatively, and as to any possible procedural bar
to proceeding, Peixoto asserts herein that he is actually
innocent of the crime charged and a miscarriage of justice
would result if his conviction is permitted to stand,
relying upon the Affidavits of Laposata and Squier in
support of the new trial motion, establishing that cause of
death was from injuries sustained by the victim in his fall
down the stairs 10 days before his death (copies of the
Laposata and Squier Affidavits are annexed as Exs. “2” and
“3” to the Motion).
Two more corroborating expert affidavits are also
submitted in support of Peixoto’s gateway claim of actual
innocence:

(i) Dr. Zhongxue Hua, a forensic pathologist

and neuropathological consultant, who indicates that the
victim’s serious skull fracture would not necessarily have

5

been immediately fatal and was consistent with injuries
caused by the fall down the stairs 10 days before (“the Hua
Affidavit”; sworn to July 14, 2014, annexed hereto as Ex.
“4”); and, (ii) Dr. Chris Van Ee, a biomechanical engineer,
who indicates that a fall down the stairs could cause the
serious skull fracture sustained by the victim in this case
(“the Van Ee Affidavit”; sworn to August 18, 2014, annexed
hereto as Ex. “5”).

Mr. Peixoto also submits his own

Affidavit in support of his Motion.
As more fully set forth herein and in the accompanying
motion papers, Peixoto’s fully supported claim of actual
innocence is grounds 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 should be granted.
FACTS AND PRIOR PROCEDURAL HISTORY
As fully set forth in the accompanying motion papers,
Mr. Peixoto was convicted of first-degree murder in
connection with the death of three-year old Christopher
Affonso, Jr., who died on January 22, 1996.

6

Trial commenced before a jury in the Taunton Superior
Court, Hely, J., on March 3, 1997, Hely, J., presiding.
See Motion for New Trial ¶ 2, annexed in the Appendix
hereto as Ex. “A”.

Trial counsel was Attorney Raymond

Veary.
At the trial, Peixoto maintained his innocence and
testified that he was not guilty of the crimes charged.
Another person, Christopher’s mother, Ami Sneed, must have
been responsible for the child’s death.

See Motion for New

Trial ¶ 3, Ex. “A”.
Ami Sneed testified at the trial that her child was in
Peixoto’s care in a downstairs room in her home immediately
precedent to her observing the child to be vomiting and
unconscious; she claimed to have heard loud bangs before
going downstairs to observe the defendant over her child,
who was vomiting and convulsing. See Motion for New Trial ¶
4, Ex. “A”.

See also Commonwealth v. Peixoto, 430 Mass.

654 (2000).

The Commonwealth also presented testimony from

the Commonwealth’s pathologist, James Weiner, and a child
abuse expert, Dr. Eli Newberger—who is not a pathologist—
that cause of death was a six inch skull fracture, a severe
injury which both testified was the result of tremendous
blunt force trauma that would have immediately caused a
coma and death very soon thereafter; in short, they claimed

7

the injury was not survivable.

See Motion for New Trial ¶

5, Ex. “A”.
Peixoto vehemently denied any culpability at trial,
testifying in his own defense, and emphasizing Ami Sneed’s
many varying statements, including to health service
providers and police.
“A”.1

See Motion for New Trial ¶ 6, Ex.

As well, testimony was presented that the child

concededly fell down the stairs some 10 days before his
death while in his mother’s sole care, striking his head
and breaking his clavicle, and resulting in ensuing
instances of being “wobbly”, stumbling, falling, and,
according to Sneed, not “being himself”.

Indeed, because

of these persistent symptoms, Sneed testified that she
called the child’s pediatrician, who gave Christopher an
appointment to be seen on the day he died, but he was never

For example, contrary to Sneed’s trial testimony that she
heard loud bangs and went down to the basement where she
saw Peixoto over the child, Dr. Acuri, the attending
emergency room physician, testified that Sneed told her
that, “she arrived to find the child, quote, banging his
head on the floor and vomiting” (Trial Transcript Vol. III,
p. 32). Also, State Police Sgt. Kevin Butler testified
that Sneed told him that both she and Peixoto “went
immediately down to the basement” [where the child
was](Trial Vol. IV, p. 13). Regarding bruising, Janet
Souza, a day care center supervisor who spoke to Sneed,
testified that Sneed assigned many of the bruises about
Christopher’s body to the time of the stairway fall and
broken collarbone (Trial Transcript, Vol. III, pp. 265,
278); Sneed denied ever saying this to daycare workers
(Trial Transcript, Vol. III, pp. 100, 105).
1

8

taken to his appointment by his mother.

As well, Mr.

Peixoto testified that the child was vomiting and
convulsing immediately prior to being taken to the hospital
where he was pronounced dead.

No defense expert, however,

was presented at the trial regarding the child’s cause of
death.

See Motion for New Trial ¶ 6, Ex. “A”.

On March 7, 1997, Peixoto was convicted as charged.
Peixoto appealed his conviction, raising issues
concerning: (i) improper cross-examination of the defendant
as to whether he had considered asserting his
constitutional rights after being given Miranda warnings (a
so-called “Doyle” claim); and (ii) the exclusion of
evidence that Ami Sneed's four-year-old daughter had
refused her embrace shortly after they arrived at hospital
for treatment of son's injuries.
Peixoto’s conviction was subsequently affirmed by the
Supreme Judicial Court on January 25, 2000, finding, among
other things, that although the Doyle claim was proven, it
was harmless error.

Commonwealth v. Peixoto, 430 Mass. 654

(2000).
Two subsequent motions for new trial, alleging
ineffective assistance of counsel for failure to present
mens rea evidence, were filed on July 16, 2001, and October
25, 2002, respectively, by Attorney Greg T. Schubert acting

9

on behalf of Peixoto.

Each motion was denied on January

22, 2002, Hely, J., and February 14, 2003, Hely, J.,
respectively.

Leave to appeal these decisions was denied

by the Single Justice, Ireland, J., on April 8, 2004.
The Prior Pro Se Habeas Petition
On March 5, 2005, Peixoto, acting pro se, filed his
first habeas petition (copy annexed hereto as Ex. “D”).
the Petition, Peixoto raised four grounds for relief:

In

(i)

ineffective counsel for failure to object to inadmissible
hearsay testimony of Commonwealth witnesses; (ii)
ineffective counsel for failure to object to prejudicial
references to victim’s injuries; (iii) evidentiary
insufficiency to convict on first-degree murder in
violation of due process; and (iv) ineffective assistance
of appellate counsel in failing to raise the above issues.
As to procedural bar, Peixoto generally alleged actual
innocence in the Petition but without submitting supporting
proofs like those submitted here.

See Appendix, Ex. “D”.

Respondent thereafter filed a motion to dismiss on May
26, 2005, because the petition was filed beyond AEDPA’s one
year statute of limitations (copy annexed as Ex. “E” in
Appendix).
By Judgment and Decision dated February 6, 2006,
Lindsay, U.S.D.J. (copy annexed as Ex. “I” in Appendix),

10

the district court dismissed the Petition as untimely.
Thus, the merits of Peixoto’s claims were never considered.
By Judgment dated July 17, 2007 (copy annexed as Ex.
“J” in Appendix), this Court denied a certificate of
appealability and ordered the appeal terminated.
PEIXOTO’S NEW CLAIMS
As more fully set forth in the accompanying Peixoto
Affidavit, it was not until recently that Peixoto learned,
while viewing a Frontline program called “The Child Cases”
involving Dr. Laposata, that cause of death of the victim
may have been from injuries sustained in a fall down the
stairs 10 days before while in in the care of his mother.
Thereafter, Peixoto diligently pursued contacting Dr.
Laposata, as well as the CPCS Innocence Program seeking to
obtain counsel, in order to obtain and present such
information to the Court.
As set forth in the accompanying Declaration of the
undersigned counsel, who was originally assigned by the
CPCS Appeals Unit to screen the public trial claim, counsel
was not assigned to investigate issues concerning cause of
death until May 9, 2012 (copy of CPCS letter dated May 9,
2012 attached as Ex. “6” to the Motion).
Peixoto and counsel acted speedily, and a supporting
Affidavit was ultimately received from Dr. Laposata (copy

11

annexed to Motion for New Trial, Ex. “A”, Appendix), who is
located in Nashville, Tennessee, on Friday, June 29, 2012,
having been sent by overnight mail to counsel on June 28,
2012.

The screening process having been completed, the

undersigned counsel then requested and received CPCS
Innocence Program approval to file a motion for new trial
on July 2, 2012, Notice of Assignment No. C80189992.
The State Motion for New Trial
The next day, the state motion for new trial was
promptly filed in Bristol Superior Court, on July 3, 2012
(Ex. “A”, Appendix).

A second supporting Affidavit from

Dr. Waney Squier was obtained on or about December 8, 2012
(copy annexed to Motion for New Trial, Ex. “A”, Appendix).
As set forth in their respective affidavits, Dr.
Laposata, chief pathologist at Vanderbilt University, and
Dr. Squier, a neuropathologist of Oxford University, both
concurred that the young child’s injuries were caused by
injuries he sustained falling down a staircase while in the
care of his mother 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

12

stumbling on repeated occasions, symptoms which are
indicative of progressive subdural hematomas occurring
after the fall that then subsequently caused the death of
the child.

See, e.g., Squier Affidavit ¶ 7, p. 5:

“[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. . . .”).
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.
The state court nevertheless summarily denied the new
trial motion by Decision dated January 3, 2013, without a
hearing (copy of decision annexed as Ex. “B” in the
accompanying Appendix).

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), but

13

then unfairly discounted the opinions of Drs. Laposata and
Squier that 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 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 in support of Peixoto’s Motion for New Trial,
Exs. “2” and “3” to the supporting Declaration.2

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). 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. The materials reviewed were substantial and
certainly not “cherry-picked,” as unfairly characterized by
the trial court’s decision (Decision, p. 6).
2

14

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
his fall down the stairs ten (10) days before his death
while in her care.
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
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.

15

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.
Accordingly, Peixoto established by his Motion for New
Trial that he was seriously prejudiced by counsel’s
omissions and deficiencies, not only depriving him of a
substantial ground of defense in the form of defense expert
testimony that he had not caused the child’s death, but
valuable information with which to effectively crossexamine the Commonwealth’s expert(s).

Given counsel’s

failure to fully investigate, counsel’s representation was
deficient and not attributable to a reasonable tactical
choice, and a new trial was constitutionally mandated.3

Attorney Veary’s cross-examination of Dr. Weiner was very
short (see Trial Transcript Vol. II, 236-243). Dr.
Weiner’s erroneous finding that the fatal injuries must
have been sustained immediately precedent to death, and not
as a result of injuries sustained in the stairway fall 10
days before, drove the police investigation and the whole
trial. Indeed, because police assumed the fatal injuries
must have been inflicted immediately precedent to death,
they confronted Sneed and Peixoto. Peixoto steadfastly
maintained his innocence. Sneed, by contrast, when shown
autopsy photos and told by police that her story didn’t
make any sense, changed her story to fit their
specifications after which they arrested Peixoto (see Trial
Transcript, Vol. IV, pp. 20-21).
3

16

Subsequently, a petition for leave to appeal to a
Single Justice of the Supreme Judicial Court was denied, by
Decision entered August 27, 2013, Hon. Fernande R.V.
Duffly, J., who remarkably ruled that the claims were
neither “new” nor “substantial” (see copy of decision, Ex.
“C” to Appendix).
Following the gatekeeper denial, Peixoto obtained
further support for his claim that he is actually innocent
of the charges.

Two more corroborating expert affidavits

were obtained, including: (i) an Affidavit of Dr. Zhongxue
Hua, a forensic pathologist and neuropathological
consultant, sworn to July 14, 2014 (annexed as Ex. “4” to
Motion) and, (ii) an Affidavit of Dr. Chris Van Ee, a
biomechanical engineer, sworn to August 18, 2014, annexed
as Ex. “5” to Motion).
Dr. Hua indicates in his accompanying 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.

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

17

after the fall.

Dr. Hua 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 accompanying 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.
THE MOTION FOR LEAVE TO FILE A
HABEAS PETITION SHOULD BE GRANTED
Under 28 U.S.C. § 2244(b), the factual predicate for
Peixoto’s claim could not have been discovered by him
previously through the exercise of due diligence since he
previously had been deprived of his constitutional right to
the effective assistance of counsel, who should have

18

earlier uncovered such evidence, thus excusing any prior
default in presenting such evidence.

See generally Murray

v. Carrier, 477 U.S. 478 (1986) (ineffective assistance of
counsel may generally constitute cause to excuse any
procedural default).

Furthermore, the facts underlying

Peixoto’s claim, including the four expert affidavits
annexed to the motion papers establishing that Petitioner
did not cause the alleged victim’s death, and 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.
Indeed, even if this Court concludes that there is a
procedural default because Peixoto did not raise his claim
sooner in the prior Petition, “[a] procedural default is
not necessarily a total bar to federal habeas relief.”
Oakes v. United States, 400 F.3d 92, 95 (1st Cir. 2005).
Procedural default does not strip a habeas court of
jurisdiction to consider defaulted claims. Rather “it
provides only a strong prudential reason, grounded in
‘considerations of comity and concerns for the orderly
administration of criminal justice,’ not to pass upon a
defaulted constitutional claim presented for federal habeas

19

review.”

Goldman v. Winn, 565 F.Supp.2d 200, 214 (D.Mass.

2008), citing

Dretke v. Haley, 541 U.S. 386, 393 (2004)

(quoting Francis v. Henderson, 425 U.S. 536, 538-39 (1976).
Therefore, “[n]otwithstanding such a default, a
federal habeas petition will be allowed to go forward if
the petitioner can show either (i) that there is cause for
the default and actual prejudice resulting from it, or (ii)
that he is actually innocent ....” Oakes, 400 F.3d at 95;
Dretke, 541 U.S. at 393 (noting the general recognition of
“an equitable exception to the [procedural default] bar
when a habeas applicant can demonstrate cause and prejudice
for the procedural default” or actual innocence). Under
this rule, a showing of “cause and prejudice” or “actual
innocence” excuses procedural default and permits a court
to decide the merits of otherwise defaulted claims. See
Dretke, supra (describing the excuse of procedural default
as a “gateway” to consideration of defaulted claims).
Oakes, 400 F.3d at 95.
Most important, not only has Petitioner shown cause
and prejudice from his prior counsel’s default and his
acting diligently following his learning of potentially
exculpatory expert evidence (see Murray v. Carrier, supra),
he has demonstrated that he is actually innocent of the
crimes charged, and thus, is entitled to relief on the

20

merits.

The Supreme Court has repeatedly declared that the

“miscarriage of justice” exception [sometimes referred to as
“a proper showing of actual innocence,” Herrera v. Collins,
506 U.S. at 404, or “a credible (or “proper”) showing of
actual innocence,” McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013) works as a safety valve regarding various
procedural hurdles to habeas relief, such as [1] overcoming
the AEDPA’s one-year statute of limitations (McQuiggin,
supra]; [2] the failure to follow state rules of procedure
[Coleman v. Thompson, 501 U.S. 722, 750 (1991; House v.
Bell, 547 U.S. 518, 537-538 (2006))]; [3] filing a
successive petition asserting a ground for relief previously
rejected [Kuhlman v. Wilson, 477 U.S. 436, 454
(1986)[plurality]; [4] filing an abusive petition, a second
petition asserting a ground for relief that was available
when the first was filed [McClesky v. Zant, 499 U.S. 467,
494-495 (1991); [5] the failure to develop in state court
the factual basis of a ground for relief [Keeney v. TamayoReyes, 504 U.S. 1, 11-12 (1992); [6] seeking recall of a
federal court of appeals’ mandate to reconsider the merits
of a ground for relief [Calderon v. Thompson, 523 U.S. 538,
558 (1998); and [7] overcoming a procedural default on
appeal [Bousley v. United States, 523 U.S. 614, 622 (1998),
that would deprive an innocent individual of access to

21

habeas relief.

In each of these cases the Court tempered a

hurdle that was a creature of its own doctrine of comity:
“These decisions ‘see[k] to balance
societal interests in finality, comity and
conservation of scarce judicial resources with
individual interest in justice that arises in
extraordinary case’” where the injustice
punishing an innocent person is present.

the
the
the
the
of

McQuiggin, at 1932.
In cases in which a petitioner asserts he is innocent
of the crime of which he was convicted, 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.
Goldman v. Winn, supra, citing McCleskey, 499 U.S. at 494
(“If Petitioner cannot show cause, the failure to raise the
claim in an earlier petition may 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)
(“Because [the petitioner] has been unable to establish
‘cause and prejudice’ ..., [he] may obtain review of his
constitutional claims only if he falls within the ‘narrow
class of cases ... implicating a fundamental miscarriage of

22

justice,’ ” based on his “claim of innocence”); Bousely,
523 U.S. at 623 (finding that petitioner failed to
establish “cause” to excuse the default of his claim, but
ordering a remand “to permit petitioner to attempt to make
a showing of actual innocence”).
Accordingly, even if this Court finds a procedural bar
and that Petitioner was not sufficiently diligent, his
showing of actual innocence is sufficient to excuse that
lack of diligence and provide him a “’gateway’ which, when
proven, allows a habeas court to review the merits of his
otherwise defaulted claims.”

Goldman v. Winn, supra, at

223 (court applied actual innocence exception and excused
defendant’s procedural default in a successive motion
context and granted §2255 relief to a federal prisoner);
citing United States v. Powell, 266 Fed. Appx. 263 (4th Cir.
Feb. 21 2008) (unpublished) (vacating lower court decision
that had found actual innocence could not excuse failure to
diligently pursue state court vacatur, but making no ruling
on this issue); and also citing United States v. Barrett,
178 F.3d 34, 53 (1st Cir. 1999) (suggesting that actual
innocence can overcome procedural bar but reserving ruling
on whether showing of actual innocence could waive
statutory restrictions).

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Further, a claim of actual innocence is especially
compelling and a gateway to review on the merits where
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.

Gomez v.

Jaimet, 350 F.3d 673, 679-680 (7th Cir. 2003); Griffin v.
Johnson, 350 F.3d 956 (9th Cir. 2003); accord Houck v.
Stickman, 625 F.3d 88 (3d Cir. 2010)
Accordingly, and as to any possible procedural bar to
proceeding, Peixoto has proven that he is actually innocent
of the crime charged, relying upon the Affidavits of Drs.
Laposata and Squier in support of the new trial motion,
that cause of death was from injuries sustained by the
victim in his fall down the stairs 10 days before his death
(copies of the Laposata and Squier Affidavits annexed as
Exs. “2” and “3” to Motion respectively), as well as the
two corroborating expert affidavits of Dr. Hua and Dr. Van
Ee (Exs. “4” and “5”), which also can be considered at
least in support of Peixoto’s procedural gateway claim of
actual innocence.

See Lopez v. Miller, 905 F.Supp.2d 42

(E.D.N.Y. 2012); Lopez v. Miller, 915 F.Supp. 2d 373
(E.D.N.Y. 20913).
Thus, as fully set forth above, Peixoto’s fully
supported claim of actual innocence is sufficient grounds

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to overcome any procedural bar to the instant Petition,
whether because it is a successive petition (Goldman,
supra); untimely under AEDPA’s one-year statute of
limitations (McQuiggen, supra); or, to overcome any
independent state procedural bar as a result of the Single
Justice’s denial of leave to appeal (Gomez, supra).

Having

overcome the procedural bar by such showing, leave should
be given permitting Peixoto to file his new Petition
asserting his ineffective assistance of counsel claim and
the public trial claim.
The Merits of Peixoto’s Claim
The Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) provides that in a habeas proceeding, “a
determination of a factual issue made by a State court
shall be presumed to be correct,” and the petitioner has
the burden of rebutting the presumption of correctness by
clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

A state court’s ultimate conclusions, including its
legal rulings, are reviewed pursuant to another clause of
AEDPA, allowing habeas relief where the state court’s
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

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(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); Coombs v. State of Maine, 202 F.3d 14,
18 (1st Cir. 2000). “This provision governs not only pure
issues of law, but mixed questions of law and fact in which
legal principles are applied to historical facts.”

Id.,

citing Trice v. Ward, 196 F.3d 1151, 1169 (10th Cir. 1999).
In this context, the Supreme Court made clear in
Williams v. Taylor, 529 U.S. 362, 389 (2000):
. . .[T]he statute [AEDPA] directs federal courts
to attend to every state-court judgment with
utmost care, but it does not require them to
defer to the opinion of every reasonable statecourt judge on the content of federal law. If,
after carefully weighing all the reasons for
accepting a state court’s judgment, a federal
court is convinced that a prisoner’s custody. . .
violates the Constitution, that independent
judgment should prevail.
Id. at 389.
As already set forth below, Petitioner has
demonstrated in this case that the state court’s denial of
his motion for new trial alleging ineffective assistance of
counsel was error and contrary to well established Supreme
Court precedent, including Strickland.

Petitioner has

established that he was seriously prejudiced by counsel’s
omissions and deficiencies in failing to fully investigate
the alleged victim’s cause of death, not only depriving him

26

of a substantial ground of defense in the form of defense
expert testimony, from Drs. Laposata and Squier, that
Petitioner had not caused the child’s death, as well as
forfeited valuable information with which to effectively
cross-examine the Commonwealth’s expert(s).

Given

counsel’s failure to fully investigate, counsel’s
representation was deficient and not attributable to a
reasonable tactical choice under Strickland, and a new
trial is constitutionally mandated.
The same is true of Petitioner’s public trial claim.
Having shown a courtroom closure during jury selection,
including the exclusion of Petitioner’s family members, and
the absence of any Waller hearing or findings that closure
was necessary, the trial court was required to reverse the
conviction, especially since there was no evidence that
Petitioner was ever advised of the public trial right by
counsel, Johnson v. Zerbst, 304 U.S. 458, 464 (1938)--who
was also ineffective in failing in this regard and in
failing to object to the closure (Strickland, supra)--and
thus, Petitioner never waived the right.

The state court’s

decision was thus “contrary to” or involved an
“unreasonable application” of federal law as established by
the Supreme Court, and further constituted an “unreasonable
determination of the facts” in light of the evidence

27

adduced in the state court proceeding.
Williams v. Taylor, supra.

28 U.S.C. §2254(d);

See Waller v. Georgia, 467 U.S.

39, 46 (1984); Press-Enterprise Co. v. Superior Court of
Cal., 464 U.S. 501, 505 (1984); see also

Presley v.

Georgia, ___U.S.___, 130 S.Ct. 721, 723 (2010).

CONCLUSION
WHEREFORE, the within Motion should be allowed.

_______________________
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 I have
served a copy of the within Declaration on the Attorney
General for the Commonwealth by mailing same, this same
day, August 21, 2014, in the U.S. Mail, to Martha Coakley,
Massachusetts
Attorney
General,
One
Ashburton
Place,
Boston, Massachusetts 02108.
______________________
DONALD A. HARWOOD

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