Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1010

MICHAEL O'LAUGHLIN,

Petitioner, Appellant,

v.

STEVEN O'BRIEN,

Superintendent, Old Colony Correctional Center,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Baldock, and Howard, *

Circuit Judges.

Kenneth I. Seiger, for appellant.

Scott A. Katz, Assistant Attorney General, Criminal Bureau,

with whom Martha Coakley, Attorney General, was on brief for

appellee.

June 10, 2009
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TORRUELLA, Circuit Judge. On the morning of November 17,

2000, Annmarie Kotowski ("Mrs. Kotowski") was found in her

apartment severely beaten and covered in blood. She survived, but

could not remember the details surrounding the attack or the person

who attacked her. After an investigation, police identified

Petitioner-Appellant Michael O'Laughlin as the perpetrator.

A Massachusetts Superior Court jury subsequently

convicted O'Laughlin of the following counts: (1) burglary and

armed assault in a dwelling; (2) armed assault in a dwelling; (3)

armed assault with intent to murder; and (4) assault and battery by

means of a dangerous weapon. The Superior Court then sentenced

O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on

Count 3; and 9-10 years on Count 4, ruling that the sentences were

to be served concurrently. The intermediate Massachusetts Appeals

Court reversed the judgments holding that there was insufficient

evidence to support the verdicts. Commonwealth v. O'Laughlin, 830

N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The

Massachusetts Supreme Judicial Court ("SJC") reinstated the

judgment reasoning that there was sufficient evidence to support

the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass.

2006) (hereinafter "O'Laughlin II").

O'Laughlin filed a petition for a writ of habeas corpus

in the United States District Court for the District of

Massachusetts on grounds that (1) the SJC's ruling was objectively
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unreasonable because there was insufficient evidence to support a

guilty verdict and (2) that the SJC violated his constitutional

right to present a defense. The district court denied O'Laughlin's

petition for habeas relief. After careful consideration, we

reverse the judgment of the district court and order the district

court to grant the petition.

I. Background

A. Factual Summary

"We must 'accept the state court findings of fact unless

[O'Laughlin] convinces us, by clear and convincing evidence, that

they are in error.'" Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir.

2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002)

(en banc)); see also 28 U.S.C. § 2254(e)(1). We note that the

SJC's findings of fact may be "supplemented with other facts from

the record that are consistent with the SJC's findings." Lynch,

438 F.3d at 39; see also Healy v. Spencer, 453 F.3d 21, 22 (1st

Cir. 2006). Thus, we recount the facts largely as they were

presented in the SJC's opinion.

In May 2000, Mrs. Kotowski revealed to David Kotowski

("Mr. Kotowski"), her husband of over twenty-five years, that she

was romantically involved with James Finn. In September 2000, Mrs.

Kotowski moved out of her home into the Fox Hollow condominium
 The SJC indicated a "difficult" marital situation: "Both the 1

victim and her husband characterized their relationship as friendly

but strained. (Other witnesses described the husband's attitude as

alternating between loving and angry.)" Approximately a week

before the attack, she conversed for the first time with her

husband about the possibility of getting a divorce. Mrs. Kotowski

testified that Mr. Kotowski was "crushed" by the move.

 O'Laughlin had been inside Mrs. Kotowski's apartment at least 2

once previously in September to fix a window, among other tasks.

 In addition, the SJC states that just days before the attack, 3

one acquaintance testified that O'Laughlin had "really scared" Mrs.

Kotowski by inquiring "about the window in her apartment."

However, once Mrs. Kotowski realized he was on the maintenance

staff, she simply walked away.

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complex in a neighboring town. She resided alone. O'Laughlin, a 1

member of Fox Hollow's maintenance staff, lived two doors down from

Mrs. Kotowski. Like other members of the maintenance staff, he

possessed a master key to all the buildings on the property,

including a key to Mrs. Kotowski's apartment.2

The SJC noted that O'Laughlin "took some interest" in

Mrs. Kotowski prior to the attack. For example, when Mrs.

Kotowski's sister was visiting, O'Laughlin stood outside her

apartment and asked Mrs. Kotowski if there were "any more good

looking women in there[.]" Also, he referred to Mrs. Kotowski five

or six times in conversations with acquaintances, citing her

"beautiful antique furniture" in her apartment as evidence of her

wealth and remarking that he was attracted to her "body type."3

The day before the attack, O'Laughlin cashed a $457.16

paycheck and made $200 child support payment to his ex-wife. Also,

the SJC stated that O'Laughlin was agitated when he was unable to
 O'Leary refused to drive unless O'Laughlin provided him with an 4

advance payment.

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sell his trailer to his neighbor because the neighbor could not

come up with $500. The neighbor paid him the next day.

On the night of the attack, the SJC described O'Laughlin

as "[n]ervous, jittery, [and] paranoid . . . ." This was "typical

behavior when he smoked crack cocaine," which O'Laughlin had done

earlier that evening at the home of a friend, Mark Puleri.

As the night wore on, O'Laughlin was "depleted of drugs

and most of his cash." At 9:00 or 9:30 p.m. that evening,

O'Laughlin, now at home alone, telephoned another friend, Grover

Finkle, asking him for a ride to purchase drugs. Finkle, who was

at Richard O'Leary's house, had previously smoked crack cocaine

with O'Laughlin and knew a drug dealer. Finkle and O'Leary, a

taxicab driver, arrived at O'Laughlin's apartment an hour later.

However, they soon left without giving O'Laughlin a ride because

O'Laughlin was unable to secure money for cab fare.4

In the early morning hours of November 17, between 12:10

and 1:43 a.m., fourteen telephone calls were placed to or from

O'Laughlin's apartment. The majority of these calls were placed to

known drug dealers.

Shortly before 2:00 a.m. George Whittemore, a neighbor

living directly above Mrs. Kotowski, awakened to a woman screaming

directly below and the sound of "wood hitting wood." According to
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Whittemore, a carpenter by profession, these sounds lasted for

about thirty seconds.

Whittemore dialed 911 at 1:55 a.m. He stayed awake until

the police arrived and flashed his apartment lights to indicate his

apartment to the police. Between the time he called 911 and when

the police arrived, Whittemore did not hear any vehicles arrive or

depart from the area. The police later conducted a reenactment of

the 911 call. Based on this reenactment, they concluded that a

person standing in Mrs. Kotowski's bedroom could have heard

Whittemore's footsteps as he walked to the telephone as well as

Whittemore's voice, but would have been unable to make out what was

being said.

Officers William Tierney and Phillip Skowron arrived six

or seven minutes after Whittemore's 911 call. They were unable to

find apartment number 202, the apartment reported in the dispatch,

because the apartment numbers at the complex had been recently

renumbered. They did not note anything unusual, but observed

O'Laughlin walking from the building on a walkway leading from

apartment number 19. O'Laughlin was wearing only boxer shorts and

Officer Tierney testified that O'Laughlin appeared "impervious" to

the near-freezing temperature.

O'Laughlin questioned the officers regarding what had

happened and the officers answered that they were responding to a

report of a woman screaming. When they asked him if he had heard

any screaming, O'Laughlin replied that he had been awakened by
O'Laughlin's supervisor testified that the complex had been 5

having problems with raccoons getting caught in the dumpster.

 Although he heard these sounds, Whittemore did not contact the 6

police again that night.

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screaming, but believed it to be a raccoon trapped in a dumpster.5

O'Laughlin explained that he had placed a stick in the dumpster so

that it could escape. Officer Tierney then looked inside the

dumpster and saw a stick, but no animal. The SJC noted that during

his conversation with the officers, O'Laughlin seemed "uneasy and

distant," not making eye contact with them. The police further

searched the area, but left after finding nothing suspicious.

Whittemore testified that throughout the night he heard

a woman moaning and crying directly below him. He also testified 6

that later in the morning, he heard the sound of glass breaking,

banging, and a man outside Mrs. Kotowski's apartment calling her

name. The man subsequently yelled "Oh, my God."

The man Whittemore was referring to was Mrs. Kotowski's

boyfriend, Finn, who had arrived at 5:45 a.m. at Mrs. Kotowski's

apartment. On weekdays, Finn routinely joined Mrs. Kotowski for a

morning coffee prior to starting his workday. On this particular

morning, when Finn knocked on the door, he only heard her say, "Who

is it?" in a strange voice. After failing to reach her from a

nearby public telephone, Finn testified that he forced open a

locked sliding glass rear door. Although the living room appeared

to be in order, he found Mrs. Kotowski lying on the floor next to
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the bed. He testified that "there was just blood everywhere."

Finn dialed 911 just before 6:30 a.m. Mrs. Kotowski, who had

severe wounds on her head, was taken to Berkshire Medical Center.

The police ruled out Finn as a suspect because of his alibi (which

they confirmed), his reaction of shock upon discovering Mrs.

Kotowski, and his cooperation with the police.

Officers who arrived after Finn's 911 call observed blood

in the victim's bedroom on the bed, the pillow, the floors, the

walls, and on the door jambs of the bathroom and bedroom. The SJC

noted that the crime scene contained "'quite a bit of blood' that

appeared to be 'splatters' on the comforter." Further, the bed

rail was dented, with wood splinters on the ground beneath the

dent. Officer Skowron testified that everything else was intact as

the apartment was neat and nothing was displaced. Mrs. Kotowski's

purse was on the floor, however. Officer Skowron also testified

that there were no signs that the front door or the rear sliding

door had been forced open (which contradicted a report by an

earlier officer on the scene stating that the rear door was

broken); that the drawers were closed; and that the light and

figurines on the dresser were upright. Mrs. Kotowski testified

that no items of value were missing from the apartment. These

items, which were in plain view on top of the dresser, included

diamonds, pearls, and an expensive watch in the bedroom. Also,

Mrs. Kotowski's purse contained her credit cards, about $28 in

cash, and a checkbook. There was $522 in cash in a dresser drawer.
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Constance Cappel, a neighbor who lived in the apartment

between O'Laughlin and Mrs. Kotowski, testified that she heard

voices outside Mrs. Kotowski's apartment at about 6:45 a.m. Cappel

went outside and saw Mrs. Kotowski being loaded into an ambulance.

She knocked on O'Laughlin's door and told him that she thought

someone had been murdered. O'Laughlin, who answered the door in

his boxer shorts and looked like he had just awoken, responded

"What do you want me to do about it?"

At 8:45 a.m. O'Laughlin came out of his apartment dressed

for work, approached one of his co-workers and Cappel, and inquired

about what was happening. After his co-worker explained the

situation, O'Laughlin described his encounter with the police the

previous night and how he had been awakened by the police cruisers.

O'Laughlin also informed his co-worker that he told the police that

he thought raccoons had been in the dumpster making a "kind of

squealing sound."

At about 9:40 a.m., Officers Tierney and Todd Briggs

talked with O'Laughlin outside the apartment building and Officer

Tierney noticed a "scratch or a dig mark in [O'Laughlin's] left

cheek, [a] small cut on his chin and a round, circular

bruise . . . just below his left ear." Officer Tierney was unsure

about how fresh these marks were.

The SJC remarked that although O'Laughlin was initially

"reluctant," he agreed to give a statement at the police station

when informed that Officer Tierney would conduct the interview.
 O'Laughlin's co-worker testified that O'Laughlin went back to 7

the apartment complex and told him the person O'Laughlin was

supposed to meet was not there. After discussing the matter

further, O'Laughlin decided to go back to the police station

accompanied by his co-worker.

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O'Laughlin arrived at the station at 10:40 a.m., but was told by

Chief Ronald Glidden to wait for Officer Tierney, who had yet to

arrive. Officer Tierney arrived twenty minutes later and told

O'Laughlin that he would be "right with him." However, when he

returned five minutes later, O'Laughlin had left.7

O'Laughlin returned to the police station twenty minutes

later and was interviewed by Chief Glidden for about ten minutes.

Chief Glidden testified that O'Laughlin "seemed agitated" during

the interview. In his statement to Chief Glidden, O'Laughlin

stated that he had been "drinking before he went to bed and he just

didn't think he was awake until he heard the cruisers at

approximately two o'clock." He thought he may have heard foxes or

raccoons before that, but was uncertain. O'Laughlin said that he

had "seen [the victim] around,"; that he and a friend had joked

about her boyfriend; and that he had been in that apartment to

repair a window. After the interview concluded, he went home.

State Troopers David Buell and Brian Berkel arrived at

the complex around noon. Trooper Buell spoke to O'Laughlin, who

stated that he had been out with his friend, Puleri, the previous

night, returned at 10:30 p.m., went to sleep around 11:30 p.m., and

was awakened by screaming, which he thought was a fox fighting with
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a raccoon. O'Laughlin said that a short time later the police

arrived and he went out to speak with them. After the officers

left, he slept until 7:30 a.m., when he was awakened by his

neighbor, who had informed him that there had been a murder.

Trooper Buell asked O'Laughlin for consent to search his

apartment in order to eliminate him as a suspect and because his

apartment was in close proximity to Mrs. Kotowski's apartment.

O'Laughlin consented, and allowed Trooper Berkel to take

photographs and two police chemists to search for blood stains.

Trooper Berkel photographed a red stain on a closet door near the

kitchen area. A chemist who saw the stain asked O'Laughlin if his

consent included taking swabbings. O'Laughlin responded that it

did not. Soon thereafter, O'Laughlin asked the officers to leave

his apartment.

Outside the apartment, the police decided to apply for a

search warrant. They returned to O'Laughlin's apartment and

informed him of their intent to secure the apartment and obtain a

warrant. O'Laughlin replied that they did not need to pursue a

warrant because he would allow them back into the apartment. He

also told the officers that he had wiped the red stain off the

closet door with his finger, and thought it was his own blood, but

was not certain. O'Laughlin told the police that he was concerned

about a search because he was afraid police would find his drug

paraphernalia and because he possessed money that he did not want

taken. Trooper Buell asked O'Laughlin to give him the drug
 Chemists also collected swabs from two small, red-brown stains 8

in the apartment that tested positive for the presumptive presence

of blood, and cuttings of what appeared to be blood from

O'Laughlin's bed comforter. O'Laughlin handed over to the police

the clothes he said he wore the previous night and permitted the

chemist to examine his boots.

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paraphernalia, telling him that he would not be charged with drug

possession.

When the chemists returned to the apartment, the red

stain on the closet door was gone. However, the area, where the

stain had been, tested positive for the presumptive presence of

blood. The chemists collected a sample by swabbing.8

A state trooper searched the area surrounding the

apartment complex with a dog trained to search by scent. The dog

found an aluminum bat about twenty-five yards away from a

building's dumpster in the woods. It appeared to be covered in

leaves and debris, but was otherwise clean. O'Laughlin's name was

inscribed on the bat.

On November 20, O'Laughlin called a friend and informed

him that he was a suspect in the assault. The SJC noted that

O'Laughlin was "upset" while he told his friend that he was "very

happy that [Mrs. Kotowski] had survived . . . [s]o that she could

identify her assailant," but with his bad luck the assailant could

have been wearing a "Nixon mask" and entered with a baseball bat.
 At booking, O'Laughlin remarked during his photograph that the 9

mark on his face was a pimple. Trooper Michael Hill thought it was

a blemish or an injury.

Twelve of these prints were identifiable and excluded 10

O'Laughlin; two were unidentifiable; and one was identifiable, but

police could not match it to any known prints.

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Later that day O'Laughlin was arrested. While in

custody, O'Laughlin told an inmate that although he owned the bat,

he last saw it when he moved into his apartment.9

The police recovered fourteen fingerprints and one palm

print from Mrs. Kotowski's apartment, none of which matched those

of O'Laughlin. In addition, footprint impressions taken at the 10

apartment did not match O'Laughlin's boots. State Police

Lieutenant Brian O'Hara, trained in fingerprint analysis and

bloodstain patterns, opined that a blood stain on Mrs. Kotowski's

pillow was caused by the transfer of blood from a person's right

hand, but the handprint was unidentifiable. He testified that the

hand had to have had a significant amount of blood on it, not all

of which would have been transferred.

A state police chemist examined the aluminum bat found in

the woods. Three small reddish brown stains on the bat tested

positive for the presumptive presence of blood, only one of which

tested positive for human blood. The three stains were swabbed and

sent to the DNA unit for further testing. There was contamination

in the DNA lab, and thus the tests consumed all the testable

material without yielding results. An additional cutting from tape
 Because of the contamination, only the following samples were 11

deemed adequate for further testing: blood on Mrs. Kotowski's

bathroom floor; a stain on the wall behind O'Laughlin's dresser;

and two cuttings from O'Laughlin's comforter. Of these samples, it

was concluded that all of the blood found in O'Laughlin's apartment

belonged to him, and O'Laughlin was excluded as a possible

contributor to the sample of blood taken from Mrs. Kotowski's

bathroom.

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on the bat's handle, an area where the presumptive presence of

blood could still be detected, was submitted to the laboratory. A

state police DNA analyst concluded that while Mrs. Kotowski could

not be excluded as a contributor, one in two of any randomly

selected individuals could have been the contributor.11

A surgeon who performed reconstructive surgeries on Mrs.

Kotowski after the attack testified that she had sustained between

fifteen to twenty blows that broke nearly every bone in her face

and skull. The only exception was her jaw. She also had defensive

wounds on her hands caused by five to ten blows. The surgeon gave

an opinion that Mrs. Kotowski's injuries were caused by a long,

sturdy, hard, round object, consistent with an aluminum bat that

was recovered in the woods on the day of the attack.

B. Procedural History

In December 2000, A Berkshire County grand jury charged

O'Laughlin with four offenses: (1) burglary and armed assault in a

dwelling, see Mass. Gen. Laws ch. 266, § 14; (2) armed assault in

a dwelling, see Mass. Gen. Laws ch. 265, § 18A; (3) armed assault

with intent to murder, see Mass. Gen. Laws ch. 265, § 18(b); and
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(4) assault and battery by means of a dangerous weapon, see Mass.

Gen. Laws ch. 265, § 15A(b).

Following a nine-day jury trial in May 2002, O'Laughlin

was convicted of all four charges. O'Laughlin appealed.

1. The Massachusetts Appeals Court Opinion

On appeal, the Massachusetts Appeals Court concluded that

there was insufficient evidence to support the jury's verdicts.

The Appeals Court stated that while the government's evidence

demonstrated that O'Laughlin had a motive of robbery, an

opportunity to commit the crime, a means to commit the crime, and

a consciousness of guilt, the evidence was not enough to establish

guilt. The Appeals Court concluded that "[n]othing in the record

sufficiently links the defendant to the crime to permit the

conclusion beyond a reasonable doubt that he was the perpetrator"

and that "[p]iling inference upon inference does not amount to

proof beyond a reasonable doubt." O'Laughlin I, 830 N.E.2d at 231-

32. In reaching its conclusion, the Appeals Court noted that the

bat was only "consistent" with the weapon used in the attack; that

O'Laughlin's lies to the police concerning his whereabouts and his

removal of the stain from his closet door, "while certainly

permissible to show a guilty conscience, cannot fill the gap in the

proof of identity"; that O'Laughlin did not show physical strain in

his appearance and demeanor when confronted by the police just

about twelve minutes after the attack, which would have been
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consistent with someone who had just committed such a "brutal"

attack; and that the third-party culprit evidence in this case

detracted from the government's case. Id. at 232-34. Thus, the

Appeals Court reversed O'Laughlin's convictions and directed that

judgments be entered in his favor.

2. The SJC Opinion

The Commonwealth then sought and received further

appellate review from the SJC. The SJC concluded that the evidence

against O'Laughlin had been sufficient and affirmed his

convictions, stating that circumstantial evidence of motive,

opportunity, means, and consciousness of guilt "permissibly

convinced the jury of the defendant's guilt." O'Laughlin II, 843

N.E.2d at 627.

The SJC stated that the jury could permissibly find that

O'Laughlin's motive to break into Mrs. Kotowski's apartment was

robbery. Id. It pointed to the fact that O'Laughlin had taken

drugs twice previously on the night of November 16, had "run out"

of drugs and money, and was calling around as late as 1:43 a.m. to

purchase drugs, which the SJC noted was "only twelve minutes before

the victims' upstairs neighbor telephoned the police department to

report screams and banging sounds from downstairs." Id.

The SJC further noted that O'Laughlin had previously

entered the victim's apartment and "had reason to believe that she

was wealthy and might have cash or valuables." Id. The SJC
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commented that O'Laughlin "needed money immediately and the victim

was a nearby and likely source." Id. Accounting for the fact that

nothing was taken from the apartment, the SJC pointed to a

reenactment during trial demonstrating that the neighbor could be

heard in the apartment below when he called the police. The SJC

concluded that "[i]t is a reasonable inference that the defendant

was frightened off before he could steal anything when he heard the

neighbor speaking." Id. at 627 n.11.

The SJC also concluded that O'Laughlin had the

opportunity to commit the crime because he resided only two

apartment doors away from Mrs. Kotowski and that he had a master

key which gave him access to her apartment. Id. at 627. In

addition, the SJC pointed to Whittemore's testimony that he did not

hear any cars going to or from the apartment complex in the

interval between when he first heard the screaming and when the

police arrived. Id.

The SJC also reasoned that O'Laughlin had the means to

commit the crime by stating that the aluminum bat was found a short

distance from Mrs. Kotowski's apartment complex. Id. The SJC

stated that "[t]he jury would certainly be warranted in concluding

that the bat was the defendant's." Id. The SJC explained that

"[h]is surname, not a common one, was visible on the bat handle and

he mentioned to someone in jail that he was the owner of the bat

the police had found." Id. The SJC further noted, however, that

although the bat was covered by some leaves and debris, it was
 The SJC stated that O'Laughlin lied to the police when he told 12

them that he was awakened by the screaming, but his telephone

records show that he was making phone calls until twenty minutes

before the police arrived on the scene. He later told the police

that the police cruisers woke him up. Also, he told the police in

an another interview that he went to bed at 11:30 p.m., awoke to

screaming that he believed were animals fighting, went back to

sleep and awoke to his neighbor's knock on his door who was there

to inform O'Laughlin that Mrs. Kotowski was severely beaten. Id.

at 627-28.

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otherwise "clean" when discovered. Id. It also acknowledged

O'Laughlin's statement that he had not seen the bat since the day

he had moved into his apartment. Id. at 627 n.12.

Most notably, the SJC indicated the significant evidence

pointing to O'Laughlin's consciousness of guilt. Id. at 627. 

First, the SJC referenced O'Laughlin's demeanor when the police

first arrived on the scene and discovered O'Laughlin outside in his

"boxer shorts in near freezing temperature." Id. The SJC noted

that when he talked with the police, he was "uneasy and distant"

and did not make eye contact with the police officers. Id. Also,

the SJC remarked that the differing versions O'Laughlin gave to

police as to the reason he woke up was indicative of his

untruthfulness. Id. at 627-28. The SJC further noted that 12

O'Laughlin reluctantly participated in an interview with the police

and seemed "agitated" when he spoke with them. Id. at 628.

Moreover, the SJC pointed to O'Laughlin's reaction to the

police's request when they asked for a swabbing of the red stain in

the closet door of his apartment. Id. Although O'Laughlin later

allowed the police to return, the stain was gone and O'Laughlin
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admitted to having removed it with his finger, saying that he

believed that it was his own blood. The SJC concluded that "[t]his

evidence reflected not merely a general consciousness of guilt, but

indicated that the defendant feared that the blood stain could be

that of the victim, a fear he would have only if he were in fact

the perpetrator." Id.

Finally, the SJC pointed to the fact that O'Laughlin had

"a 'scratch or dig mark' on his cheek, a small cut on his chin and

a bruise on his neck." Id. While acknowledging that the police

officer could not discern whether the marks were "fresh," the SJC

concluded that "it could be inferred that the injuries were

sustained during a physical encounter with the victim." Id.

In sum, the SJC stated that the evidence taken together

"was sufficient to permit the jury to determine beyond a reasonable

doubt that the defendant was the perpetrator of the vicious attack

on the victim." Id.

In reversing the lower appellate court decision, the SJC

distinguished its case law in Commonwealth v. Mazza, 504 N.E.2d 630

(Mass. 1987), stating that in the instant case the prosecution

"presented more evidence linking [O'Laughlin] to the assault."

O'Laughlin II, 843 N.E.2d at 629. Furthermore, the instant case

contained evidence of means as represented by the aluminum bat,

"significantly stronger evidence of consciousness of guilt,"

bruises on O'Laughlin's face, and the fact that O'Laughlin was

wearing only boxers when the police found him, which "would be
-20-

consistent with his having disposed of bloody outer garments." Id.

With respect to O'Laughlin's attire, the SJC added that "[t]he jury

could find that, had the defendant gone outside to check for

animals in the dumpster (as he claimed), it was implausible that he

would have done so without putting on at least minimal clothing,

not only for purposes of protection against the cold but also for

purposes of decency." Id.

The SJC disagreed with the weight placed by the Appeals

Court on the fact that O'Laughlin "did not manifest any signs of

recent physical exertion (sweat, shortness of breath, wet hair or

disarray)" twelve minutes after the attack. Id. at 629 n.13. The

SJC stated that this did not detract from the government's case

because twelve minutes after the attack there would be no reason

for O'Laughlin to show signs of this physical exertion. Id.

Also, the SJC disagreed with the Appeals Court that the

third-party culprit evidence presented in this case detracted from

the government's argument or affected the sufficiency of the

evidence because it was not "so overwhelming that no rational jury

could conclude that the defendant was guilty." Id. at 630. The

SJC stated that the third-party culprit evidence "simply tended to

contradict the Commonwealth's evidence; it did not show it to be
 The SJC noted O'Laughlin's third-party culprit evidence in a 13

footnote:

The defense sought to portray the victim's husband, from

whom she had recently separated, as the third-party

culprit. The husband was aware of the wife's new address

and that she was involved with another man. The victim

described the husband as being "upset" but not angry

about this relationship. Others said the husband

alternated between being "nice" and verbally abusive. The

husband testified that he was at home at the time of the

assault and that he received two telephone calls just

before 6 a.m. Each time his "caller ID" indicated the

source of the call as the victim's apartment, but no one

was on the line. He dialed the number, and a man

answered. One witness thought he saw the husband's car

in his workplace parking lot at approximately 6 a.m. on

the morning of the attack, but a neighbor saw the

husband's car parked at home at 6:20 a.m. The husband

was generally cooperative with the police, but did not

permit the police access to "personal" letters to his

wife. Tests indicated the presumptive presence of blood

on one of the husband's forearms on the day of the

attack. On the evening of November 17, the police

observed garbage bags on the floor of the husband's

garage and dark clothing in a clothes dryer. Two wet

towels strongly smelling of bleach were found in a

plastic bag in the trunk of the husband's car. One of

the towels was the same as towels found in the victim's

linen closet. The husband explained that the towels

smelled because he did not know how to do laundry and had

used too much bleach on them. He said he brought them on

a hunting trip the previous weekend and had forgotten

them in the trunk. Finally, the husband kept wooden

baseball bats and other athletic equipment in his garage.

Id. at 630 n.14.

-21-

incredible or conclusively incorrect." Id. (internal quotation 13

marks omitted).

3. O'Laughlin's Habeas Petition

In his habeas petition before the district court,

O'Laughlin alleged that (1) the evidence at trial was insufficient
-22-

to prove that he was a perpetrator of the offenses for which he was

convicted; and (2) the trial court violated his right to present a

defense by excluding a handwritten note that, according to

O'Laughlin, supported his third-party culprit defense. After

briefing by the parties and a non-evidentiary hearing, the district

court denied O'Laughlin's petition reasoning that "like the courts

that have looked at this cold record before me, this is a close

question. But the petition must be under federal law denied."

O'Laughlin then filed a timely notice of appeal and

requested a Certificate of Appealability ("COA") as to his

sufficiency and right-to-present a defense claims. The district

court granted a COA with respect to both issues.

II. Discussion

A. Standard of Review

We review de novo the district court's decision to grant

or deny a habeas petition under 28 U.S.C. § 2254. Healy, 453 F.3d

at 25. Under the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219

(1996), a federal court shall not grant a petition for habeas

relief "with respect to any claim that was adjudicated on the

merits in State court proceedings" unless the state court decision:

1) "was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States" or 2) "was based on an unreasonable
 Although an analysis under § 2254(d)(1) is appropriate in the 14

present case, we say "generally" because we need not conclude that

we must "evaluate a state court's resolution of a Jackson

sufficiency-of-the-evidence claim in all cases under § 2254(d)(1)

rather than § 2254(d)(2)." Sarausad v. Porter, 479 F.3d 671, 678

(9th Cir. 2007) (emphasis added), rev'd on other grounds sub nom.

Waddington v. Sarausad, 129 S. Ct. 823 (2009); cf. id. at 695

(Reinhardt, J., concurring in part and dissenting in part) ("I see

nothing in law or logic preventing us from evaluating Jackson

claims under § 2254(d)(2), which authorizes us to grant habeas

relief when the state court decision we are reviewing is 'based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.'" (quoting § 2254(d)(2)).

-23-

determination of the facts in light of the evidence presented in

the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). "A state

court's findings on factual issues 'shall be presumed to be

correct' and the petitioner bears the burden of disproving factual

findings by 'clear and convincing evidence.'" McCambridge, 303

F.3d at 34-35 (quoting 28 U.S.C. § 2254(e)(1)).

Sufficiency claims are generally evaluated under 14

§ 2254(d)(1) and we look to "whether the state court decision

constitutes an unreasonable application of clearly established

Supreme Court case law." Hurtado v. Tucker, 245 F.3d 7, 15 (1st

Cir. 2001) (quoting Williams v. Matesanz, 230 F.3d 421, 426 (1st

Cir. 2000)).

"[T]he 'unreasonable application of' prong of

§ 2254(d)(1) 'reduces to a question of whether the state court's

derivation of a case-specific rule from the [Supreme] Court's

generally relevant jurisprudence appears objectively reasonable.'"

Id. at 16 (quoting Matesanz, 230 F.3d at 425).
-24-

"Habeas review involves the layering of two standards.

The habeas question of whether the state court decision is

objectively unreasonable is layered on top of the underlying

standard governing the constitutional right asserted." Id.

The constitutional right asserted in sufficiency of the

evidence claims is set forth by the Supreme Court's decision in

Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, due

process requires that "no person shall be made to suffer the onus

of a criminal conviction except upon sufficient proof - defined as

evidence necessary to convince a trier of fact beyond a reasonable

doubt of the existence of every element of the offense." Id. at

316. More succinctly, the relevant test we take from Jackson is

"whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Id. at

319 (emphasis in original).

Thus, for our purposes, we must decide whether the SJC's

application of Jackson to O'Laughlin's case was "objectively

unreasonable." Although "[t]he term 'unreasonable' is no doubt

difficult to define," Hurtado, 245 F.3d at 17 (quoting Williams v.

Taylor, 529 U.S. 362, 410 (2000)), we have explained that "some

increment of incorrectness beyond error is required." McCambridge,

303 F.3d at 36 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d

Cir. 2000)). "The increment need not necessarily be great, but it

must be great enough to make the decision unreasonable in the
 We also note "that a state-court adjudication of an issue framed 15

in terms of state law may receive section 2254(d)(1) deference so

long as the state standard is at least as protective of the

defendant's rights as its federal counterpart." Leftwich v.

Maloney, 532 F.3d 20, 23-24 (1st Cir. 2008); see also White v.

Coplan, 399 F.3d 18, 23 (1st Cir. 2005) (explaining that a federal

habeas court may "infer that the federal claim was considered if

the state court rejects a counterpart state claim and then cites to

a case holding that the federal constitution provides no greater

protection"). Even though the SJC did not cite Jackson, we have no

qualms with its analysis in this respect. The SJC relied on

Massachusetts case law that has expressly adopted the federal

constitutional standard in Jackson. See Commonwealth v. Latimore,

393 N.E.2d 370, 375 (Mass. 1979); see also Leftwich, 532 F.3d at 24

("Because the Latimore court adopted the governing federal

constitutional standard as the Massachusetts standard for

sufficiency of the evidence challenges, . . . we can securely

reason that in scouring the record for Latimore error and finding

none the SJC effectively answered the federal constitutional

question.") (citations omitted).

-25-

independent and objective judgment of the federal court." Id. To 15

be sure, "the gap between erroneous state court decisions and

unreasonable ones is narrow," Evans v. Thompson, 518 F.3d 1, 6

(1st Cir. 2008), and "it will be the rare case that will fall into

this gap," id. (citing Williams, 529 U.S. at 388). However, for an

erroneous decision to be unreasonable, judicial incompetence is not

necessary and "a case will fall into this narrow gap precluding

relief only when 'it is a close question whether the state decision

is in error.'" Id. at 7 (quoting McCambridge, 303 F.3d at 36)

(emphasis in original). "'It is enough if the Supreme Court's

general principles can be discerned and if, respectfully but with

confidence,' the federal court concludes that the state court

unreasonably applied federal law." Id. (quoting White, 399 F.3d at

25).
 For example, in Hurtado, we explained: 16

[A]s a general rule, federal courts should be

particularly cautious about issuing habeas, on grounds of

the objective unreasonableness of a state court's

conclusion that the evidence is sufficient, where there

has been a verdict of guilt by a jury of a defendant's

peers, where the defendant's credibility was evaluated by

the jury hearing his testimony, where that verdict has

been affirmed on appeal in the state system, and where

there is no claim of constitutional error in the conduct

of the trial. Even on direct appeal, claims that the

evidence was insufficient to support the verdict are

"often made, but rarely successful."

245 F.3d at 19-20 (quoting United States v. Moran, 984 F.2d 1299,

-26-

Further, in our inquiry of objective unreasonableness the

question "is not how well reasoned the state court decision is, but

whether the outcome is reasonable." Hurtado, 245 F.3d at 20. We

note that just because an opinion is poorly reasoned does not "mean

that the outcome represents an unreasonable application, although

. . . it is certainly ground for further inquiry if the state court

ignores material facts." Id. (internal citation omitted). "'It is

not necessary that the federal court agree with every last detail

of the state court's analysis. By like token, state courts are not

required to supply the specific reasons that a federal court thinks

are most persuasive for upholding the judgment.'" Healy, 453 F.3d

at 28-29 (1st Cir. 2006) (quoting Bui v. DiPaolo, 170 F.3d 232, 243

(1st Cir. 1999)).

As a final note, we emphasize the great degree of

deference state court judgments are due, especially those that

uphold jury verdicts.16
1300 (1st Cir. 1993)).

-27-

B. Applicable Law

1. The Jackson Standard 

Turning to the underlying constitutional right asserted

here, O'Laughlin maintains that his due process rights were

violated because after viewing the evidence in the light most

favorable to the prosecution, no rational trier of fact could have

identified him as the assailant beyond a reasonable doubt. See

Jackson, 443 U.S. at 319 ("whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt.") (emphasis in original); United States v. Ayala,

289 F.3d 16, 25 (1st Cir. 2002) ("Identification of the defendant

as the person who committed the charged crime is always an

essential element which the government must establish beyond a

reasonable doubt.") (quotation marks and citations omitted).

"The Jackson standard is as easy to articulate as it is

difficult to apply." Newman v. Metrish, 543 F.3d 793, 796 (6th

Cir. 2008); see generally Hon. Jon O. Newman, Beyond "Reasonable

Doubt," 68 N.Y.U. L. Rev. 979 (1993) (discussing difficulty of

defining term); Note, Reasonable Doubt: An Argument Against

Definition, 108 Harv. L. Rev. 1955 (1995) (same). This is

particularly the case where we have no eyewitness to identify the

perpetrator. In cases based on circumstantial evidence such as the
 Like the SJC, we acknowledge that to pass constitutional muster, 17

direct evidence of identification is not necessary.

"Identification can be inferred from all the facts and

circumstances that are in evidence." Ayala, 289 F.3d at 25

(quotation marks and citations omitted).

-28-

instant case, "we face head-on the disturbing truth that guilty 17

verdicts rest on judgments about probabilities and those judgments

are usually intuitive rather than scientific." Stewart v. Coalter,

48 F.3d 610, 614 (1st Cir. 1995).

Despite the lack of precision in determining what

constitutes reasonable doubt and the inherent difficulty in

defining the term, this court and others have attempted to

explicate the standard. For example, we have stated that "[g]uilt

beyond a reasonable doubt cannot be premised on pure conjecture.

But a conjecture consistent with the evidence becomes less and less

a conjecture, and moves gradually toward proof, as alternative

innocent explanations are discarded or made less likely." Id. at

615-16.

As we have stated on multiple occasions, "'[b]eyond a

reasonable doubt' does not require the exclusion of every other

hypothesis; it is enough that all 'reasonable' doubts be excluded."

Id. at 616 (quoting United States v. Oreto, 37 F.3d 739, 753 (1st

Cir. 1994)); see also United States v. Dwinells, 508 F.3d 63, 74

(1st Cir. 2007); United States v. Olbres, 61 F.3d 967, 976 (1st

Cir. 1995); United States v. Brown, 603 F.2d 1022, 1025 (1st Cir.

1979) ("The prosecution may prove its case by circumstantial
-29-

evidence, and it need not exclude every reasonable hypothesis of

innocence so long as the total evidence permits a conclusion of

guilt beyond a reasonable doubt.").

We note that although the circumstantial evidence is

permissible to discern the identity of the perpetrator, there are

some limits to its probative value. "[A] reviewing court should

not give credence to 'evidentiary interpretations and illations

that are unreasonable, insupportable, or overly speculative.'"

Leftwich, 532 F.3d at 23 (quoting United States v. Spinney, 65 F.3d

231, 234 (1st Cir. 1995)); see also United States v. Valerio, 48

F.3d 58, 64 (1st Cir. 1995) ("we are loath to stack inference upon

inference in order to uphold the jury's verdict"). Further, 

[i]f the evidence viewed in the light most

favorable to the verdict gives equal or nearly

equal circumstantial support to a theory of

guilt and a theory of innocence of the crime

charged, this court must reverse the

conviction. This is so because . . . where an

equal or nearly equal theory of guilt and a

theory of innocence is supported by the

evidence viewed in the light most favorable to

the prosecution, a reasonable jury must

necessarily entertain a reasonable doubt.

United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995) 

(alterations, ellipses, and emphasis in original) (internal

quotation marks omitted).

Although we give great deference to jury verdicts, we

have held that evidence may sometimes be insufficient to sustain a

jury verdict of guilt beyond a reasonable doubt. See, e.g., United

States v. García-Torres, 280 F.3d 1, 6 (1st Cir. 2002) (holding
-30-

evidence insufficient to show proof beyond reasonable doubt that

defendant knew he was aiding in drug conspiracy when participating

in kidnapping and murder); United States v. Blasini-Lluberas, 169

F.3d 57, 62-64) (1st Cir. 1999) (holding evidence insufficient to

support convictions of bank officer on four of five counts of

misapplication of bank funds); United States v. Morillo, 158 F.3d

18, 24 (1st Cir. 1998) (holding evidence insufficient to support

inference of knowledge of conspiracy's purpose); United States v.

Czubinski, 106 F.3d 1069, 1073-74 (1st Cir. 1997) (holding evidence

insufficient to show defendant intended to carry out a scheme to

defraud the IRS under wire fraud statute); United States v. de la

Cruz-Paulino, 61 F.3d 986, 1001 (1st Cir. 1995) (holding evidence

insufficient to support conviction for aiding and abetting where

prosecution failed to show defendant shared the specific intent of

the principal); Valerio, 48 F.3d at 65 (holding evidence

insufficient to support a finding of intent to distribute cocaine).

C. Analysis of the SJC Opinion

As our sister court has noted, "[a]lthough circumstantial

evidence alone can support a conviction, there are times that it

amounts to only a reasonable speculation and not to sufficient

evidence." Newman, 543 F.3d at 796. This is such a case.

The instant facts may support a reasonable speculation

that O'Laughlin was the assailant, but not sufficient evidence to

establish his guilt. Taken together, the circumstantial evidence
 A reenactment demonstrated that the assailant would not have 18

been able to make out that Whittemore was calling the police.

-31-

in this case, even when drawing all reasonable inferences in favor

of the prosecution, does not permit any rational jury to conclude

that O'Laughlin was the assailant beyond a reasonable doubt.

Specifically, the evidence that O'Laughlin acted upon a

financial motive to commit the attack is weak at best. A jury

could permissibly conclude that he needed money to acquire crack

cocaine, giving him reason to break into Mrs. Kotowski's apartment,

a person whom he knew had money. However, Mrs. Kotowski testified

that nothing of value was taken and no items, not even expensive

jewelry in plain view, were disturbed. The SJC accounted for this

fact by stating that the jury could draw "a reasonable inference

that the defendant was frightened off before he could steal

anything when he heard the neighbor [Whittemore] speaking."

O'Laughlin II, 843 N.E.2d at 627 n.11. Even if the assailant

deduced that the neighbor was calling the police in response to the

attack, no rational juror could conclude that the placement of 18

this phone call frightened him off given the volume and duration of

Mrs. Kotowski's screams. Moreover, the assailant's actions are

inconsistent with O'Laughlin's purported financial motive in view

of the savage beating Mrs. Kotowski suffered at the hands of the

assailant, an attack involving at least fifteen to twenty blows

that nearly broke every bone in her face and skull. If the
 This is not to say that each of us is convinced that the state 19

court's decision is unreasonable in every respect. But this case

comes to us on arguments as presented by the parties. This panel

may not be in complete unanimity in all particulars, but we do

agree that the petitioner has the better of the argument with

respect to the means evidence introduced by the prosecution at

trial.

-32-

assailant were motivated by money, a few blows to incapacitate her

would have been sufficient.

With respect to the opportunity to commit the crime,

O'Laughlin had a master key and there were no signs of forced

entry; thus, one possible inference is that O'Laughlin used his

master key to enter Mrs. Kotowski's apartment. It is notable,

however, that several others on the maintenance staff possessed a

master key. Also, Mrs. Kotowski could have let someone familiar to

her into the apartment.

With respect to the means for the attack, a jury could

permissibly find that the aluminum bat found in the woods was

O'Laughlin's bat given that his name was on the bat and that he

admitted to owning the bat at one time. Yet, there was little

evidence connecting the aluminum bat, a non-unique item in a

residential complex, to the crime scene apart from the fact that it

was found twenty-five yards from the residential complex the

following day and the use of such an object was "consistent" with

Mrs. Kotowski's injuries. Of course, any bat likely would have 19

been consistent with her injuries. Also, Whittemore, a carpenter,

testified that he heard "wood hitting wood," as opposed to hearing
 We compare infra the consciousness of guilt evidence in our case 20

to that of Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005). In

Juan H., the Ninth Circuit granted habeas relief to a petitioner in

part because it viewed that any conclusion regarding the

petitioner's guilt based on the prosecution's consciousness of

guilt evidence amounted to no more than "bare conjecture." Id. at

1277.

-33-

the sound of a hollow aluminum bat, when he was awakened.

Furthermore, wooden bats were found in Mrs. Kotowski's estranged

husband's garage.

We next turn to O'Laughlin's consciousness of guilt,

which the SJC considered the strongest evidence in favor of

reinstating the conviction. When viewed in context, this evidence 20

is minimally probative on the question of whether O'Laughlin was

the assailant.

Notwithstanding the fact that it was just after 2:00

a.m., the SJC cited to O'Laughlin's "uneasy and distant" demeanor

and his unwillingness to look Officers Tierney and Skowron in the

eye when they confronted him just minutes after the attack.

However, both officers, even though they were responding to reports

of a possible assault, did not consider O'Laughlin's behavior

suspicious at the time. Indeed, they initially believed he was the

reporting party and after asking him a few brief questions they

left the area. Even the fact that O'Laughlin was only clad in

boxers in near-freezing temperature did not give them pause after

he explained to them that he was awakened by animal screams and had

gone outside to place a stick in the dumpster, a fact Officer
-34-

Tierney promptly verified. Also, the SJC explained that a jury

could find it "implausible" that O'Laughlin would have gone outside

without "putting on at least minimal clothing" if his true reason

for going outside was to check for animals. Yet, Officer Tierney

stated that O'Laughlin appeared unfazed by the cold and

O'Laughlin's alibi shows that he did not intend to stay outside for

a very long time.

The other consciousness of guilt evidence cited by the

SJC -- O'Laughlin's reluctance to be interviewed by the police, the

inconsistent versions of how he was awoken, his reaction to the

neighbor's report of an assault, the fact that he was agitated

during the interview, and his reaction when the police wanted to

swab his closet door -- while not helpful to his case, are not

enough, even when considered in combination with other

circumstantial evidence, to allow a jury to permissibly conclude

O'Laughlin's guilt beyond a reasonable doubt.

With respect to this evidence, the fact that O'Laughlin

was reluctant to come down to the police station and displayed some

agitation during the interview has minimal probative value in

determining whether O'Laughlin was the assailant. Although this

behavior could indicate consciousness of guilt for some crime, such

as possessing crack cocaine (which the evidence shows he admitted

to being concerned about), it is an impermissible inferential leap

for a jury to find this behavior significantly probative of whether
 This is not a case where the defendant stonewalled the police. 21

He approached the police just minutes after the attack, he

submitted to a ten-minute interview with the Chief of Police, and

ultimately allowed the police to search his apartment.

-35-

O'Laughlin committed such a brutal attack. Likewise, his 21

indifferent reaction to his neighbor informing him of the attack

the following morning may bear on whether he was a compassionate

person, but has little probative value in assessing O'Laughlin's

guilt.

Admittedly, the conflicting versions O'Laughlin gave the

police as to how he was awoken and his reaction to the police's

request to swab his closet door when they were searching his home

could be probative evidence linking O'Laughlin to the crime.

However, in light of O'Laughlin's concerns that the police would

discover his drug use, this evidence was insufficient to serve as

the primary basis upon which the jury could rely to conclude

O'Laughlin's guilt beyond a reasonable doubt.

Lastly, the SJC cited bruises and marks on O'Laughlin's

face as evidence from which the jury could infer that an

altercation occurred between O'Laughlin and Mrs. Kotowski.

However, these bruises and marks have minimal, if any, probative

force given the fact that they were not even noted by Officers

Tierney and Skowron when they were responding to an assault just

minutes after the attack.

It bears repeating that the prosecution had to rely on

circumstantial evidence because no physical or DNA evidence linked
-36-

O'Laughlin to the attack despite the copious amount of blood at the

crime scene. Considering the large amount of blood, it is

difficult to fathom how O'Laughlin was able to avoid having any

blood or other DNA evidence connect him to Mrs. Kotowski. Given

the insufficiency of the evidence, circumstantial or otherwise,

tying O'Laughlin to the attack, we conclude that a rational jury

could not find O'Laughlin's guilt beyond a reasonable doubt.

D. Objectively Unreasonable Standard for Purposes of

Habeas Review

Although we have identified several gaps in the SJC's

analysis, we are mindful that on habeas review under AEDPA we are

not permitted to grant a writ if we merely disagree with the jury

verdict or if we identify an error in the SJC's reasoning. The

relevant inquiry is whether the SJC was objectively unreasonable in

upholding the conviction.

We once again acknowledge the extremely high bar that

must be overcome on habeas review to overturn a state court

decision; however, that bar is not insurmountable and on rare

occasions we have held a state court decision to be objectively

unreasonable. See, e.g., White, 399 F.3d at 25 (holding on habeas

review that state court unreasonably applied Supreme Court's

Confrontation Clause jurisprudence where state court barred

petitioner from cross examining complainants regarding prior

accusations).
 These include: 22

(1) The focus of the inquiry is on the state court

decision; 

(2) Even with the deference due by statute to the state

court's determinations, the federal habeas court must

itself look to "the totality of the evidence" in

evaluating the state court's decision; 

(3) The failure of the state court to consider at all a

key argument of the defendant may indicate that its

conclusion is objectively unreasonable; however, the

paucity of reasoning employed by the state court does not

itself establish that its result is objectively

unreasonable; 

(4) The failure of a state court to give appropriate

weight to all of the evidence may mean that its

conclusion is objectively unreasonable; and 

(5) The absence of cases of conviction precisely parallel

on their facts does not, by itself, establish objective

unreasonableness.

Hurtado, 245 F.3d at 18.

-37-

This court has identified certain guidelines that it

finds useful in analyzing sufficiency claims on habeas review.22

In addition, we note that although we evaluate the state court

decision in light of Supreme Court precedent, we are not precluded

from looking at other federal court decisions that may help guide

us in applying the Jackson standard. Indeed, "'[d]ecisions from

the lower federal courts may help inform the AEDPA analysis to the

extent that they state the clearly established federal law

determined by the Supreme Court.'" Evans, 518 F.3d at 10

(alteration in original) (quoting Aspen v. Bissonnette, 480 F.3d

571, 574 n.1 (1st Cir. 2007)). This is especially true when

"'factually similar cases from the lower federal courts' can

'provid[e] a valuable reference point' when considering the
-38-

reasonableness of a state court's application of Supreme Court

precedent to a particular set of facts." Id. (alteration in

original) (quoting Rashad v. Walsh, 300 F.3d 35 (1st Cir. 2002)).

Under § 2254(d)(1), we are not constrained in our "ability to draw

from any legal source in determining whether the state court's

decision rests on constitutional error or is an unreasonable

application of Supreme Court precedent. [Section 2254(d)(1)] only

limits the grounds on which habeas relief may be granted." Id.

With this in mind, we look to a recent case, Newman v.

Metrish, where the Sixth Circuit held a state court ruling to be

objectively unreasonable on grounds that the prosecution did not

present sufficient evidence to support a prosecution for murder of

a known drug dealer. 543 F.3d at 797. In Newman, the prosecution

presented evidence at trial that the petitioner planned to rob drug

dealers for drugs or money; that the victim was a known drug dealer

who kept drugs in his freezer; that the petitioner and the victim

were known to engage in drug transactions in the past; that the

victim's freezer was "open and empty" after he was killed; and that

the petitioner had a motive for the killing because he had seen the

victim "make a pass" at the petitioner's girlfriend. Id. at 794.

Furthermore, the prosecution presented evidence supporting an

inference that Newman had possessed and once purchased the murder

weapon. Id. This evidence included forensic evidence and the fact
 With respect to the murder weapon, the Newman court acknowledged 23

that "the prosecution offered ample evidence to support an

inference that [the petitioner] had previously possessed at least

one of the murder weapons." Id. at 795. However, it noted that

"the prosecution did not offer any evidence that [the petitioner]

had used or possessed the weapons on the day of the murder," any

"eyewitness testimony," any "latent fingerprints from the crime

scene or the items in the gym bag" in which the alleged murder

weapon was found. Id.

-39-

that the petitioner's friend saw a gun similar to the murder weapon

in the petitioner's home a few weeks prior to the murder. Id. 23

In analyzing the evidence under Jackson, the Newman court

stated that even when "consider[ing] all of the evidence in the

light most favorable to the prosecution, there remains reasonable

doubt because we are limited by what inferences reason will allow

us to draw." Id. at 797. It remarked that these limitations

included its ability to "infer only that [the petitioner] intended

to rob a drug dealer and knew that [the victim] was a drug dealer,

that a gun previously owned by [the petitioner] was used to kill

[the victim], and that a similar looking gun was seen in [the

petitioner's] home approximately two weeks before the murder." Id.

The Newman court added that "even assuming that [the petitioner's]

gun was indeed the one used in the homicide, there was no evidence

of what happened to it between that date and the date of the

homicide, and we need not speculate as to what might have

happened." Id.

The Newman court reasoned that while there was "a wealth

of information showing that [the petitioner] owned the gun,"
-40-

"evidence placing [the petitioner] at the scene" was "conspicuously

absent." Id. at 797. It pointed to the fact that there was no

eyewitness testimony and the police did not recover any

fingerprints from the crime scene. Id. The Newman court stated

that "[w]ithout additional evidence placing [him] at the scene of

the crime, there is only a reasonable speculation that [the

petitioner] himself was present." Id. It concluded that "where

the evidence taken in the light most favorable to the prosecution

creates only a reasonable speculation that a defendant was present

at the crime, there is insufficient evidence to satisfy the Jackson

standard." Id. Accordingly, the Newman court declared the state

court ruling an unreasonable application of clearly established

federal law. Id.

While Newman's reasoning certainly does not control our

analysis, it is significant that our sister court ruled a state

court decision to be objectively unreasonable under Jackson on

facts more probative of a petitioner's guilt than what we have

here. For example, O'Laughlin, like the petitioner in Newman, was

not connected to the crime scene by forensic evidence or eyewitness

testimony; however, unlike the petitioner in Newman who had prior

business dealings with the victim in that case, O'Laughlin had

minimal contact with the victim apart from a few casual

conversations and a maintenance call. Moreover, the petitioner's

robbery motive in Newman was consistent with the evidence -- as the

victim's freezer, which was his storage place for drugs, was open
 Even if, in Newman, the petitioner's motive was anger because 24

the victim had made a pass at the petitioner's girlfriend, the

victim's gunshot wound is not inconsistent with this motive.

-41-

and empty. In the instant case, however, O'Laughlin's alleged 24

motive of robbery to satisfy his need for crack cocaine does not

align with the fact that nothing of value was taken from Mrs.

Kotowski's apartment or with how savagely she was beaten at the

hands of her assailant. Lastly, in Newman, the petitioner owned a

gun whose spent cartridges and bullets matched those found in the

victim's body. Here, the aluminum baseball bat that O'Laughlin

owned was merely "consistent" with Mrs. Kotowski's injuries, in the

same way a metal pipe or some other long, sturdy object would be

consistent with her injuries.

Another decision from a sister court also informs our

analysis as to whether the SJC unreasonably applied the Jackson

standard. In Juan H. v. Allen, the Ninth Circuit held that the

state court decision was objectively unreasonable because there was

insufficient evidence to conclude that a juvenile petitioner aided

and abetted a principal in committing first-degree murder and

first-degree attempted murder. 408 F.3d at 1278-79.

In Juan H., the state court had concluded that the

petitioner had "manifested consciousness of guilt" because he fled

from the crime scene; he attempted to leave his home with his

family after the shooting; and he gave a false alibi to the police

that he was in a trailer and not present during the shooting. Id.
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at 1277. Also, as motive evidence, the state court cited

petitioner's gang gestures towards the victim and the fact that the

petitioner had punched the victim on a prior occasion. Id.

With respect to the evidence of flight, the Juan H. court

reasoned that "[n]o reasonable trier of fact could find evidence of

criminal culpability in the decision of a teenager to run home from

the scene of a shooting, regardless of whether the home was in the

same general direction as the car of a fleeing suspect." Id. The

Juan H. court added that "[l]ikewise, any rational factfinder would

find little or no evidence of guilt in the fact that [the

petitioner] attempted, along with the rest of his family, to leave

his home as it was being surrounded by an angry mob of neighbors."

Id.

Regarding the false alibi, the Juan H. court remarked

that it was "bare conjecture" to regard the petitioner's untrue

statements to the police as reflective of consciousness of guilt.

Id. The court explained that the petitioner "might have made a

false statement to law enforcement for any number of reasons,

especially given that any statements he made as a witness would

likely be used to prosecute his older brother, a member of his

immediate family." Id. The Juan H. court stressed: "Although we

must draw all reasonable inferences in favor of the prosecution, a

'reasonable' inference is one that is supported by a chain of

logic, rather than, as in this case, mere speculation dressed up in

the guise of evidence." Id.
 As we stated above, here the SJC viewed its consciousness of 25

guilt evidence to be most probative of O'Laughlin's guilt.

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Finally, the Juan H. court stated that the prosecution's

motive evidence was mere conjecture, reasoning that the

"interpersonal tensions" between the petitioner and the victim "do

not create a sufficiently strong inference of motive to allow a

reasonable trier of fact to conclude beyond a reasonable doubt that

[the petitioner] had reason to aid and abet first-degree murder."

Id. at 1278.

The Juan H. court maintained that "[s]peculation and

conjecture cannot take the place of reasonable inferences and

evidence -- whether direct or circumstantial -- that [the

petitioner] -- through both guilty mind and guilty act -- acted in

consort with [the principal]." Id. at 1279. Applying the Jackson

standard to the state court decision, the Juan H. court ruled that

"only speculation . . . supports a conclusion" that the petitioner

was guilty of aiding and abetting the first-degree murders. Id.

It concluded that "[s]uch a lack of evidence violates the

Fourteenth Amendment guarantee that an accused must go free unless

and until the prosecution presents evidence that proves guilt

beyond a reasonable doubt." Id. (citing In re Winship, 397 U.S.

358, 365-68 (1970)).

Admittedly, the facts in Juan H. do not line up precisely

with those of the instant case. However, we find instructive the

Juan H. court's treatment of its consciousness of guilt evidence.25
 As explained above, O'Laughlin's interactions with the police 26

immediately after the assault and the day after, while not

irrelevant, did not constitute sufficient evidence for a rational

jury, even combined with the other circumstantial evidence, to

conclude he was the assailant. Again, it may have been permissible

for the jury to find that O'Laughlin possessed consciousness of

guilt of some crime, such as drug possession, for which the

evidence showed there was some basis, but not of a vicious attack

on a neighbor with whom he had very little prior contact.

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The Juan H. court held that the petitioner's lies about his

presence at the crime scene and the fact that he fled the area were

insufficient to support an inference that he aided and abetted the

murderer, reasoning that a conclusion regarding the petitioner's

guilt from this evidence would be no more than "bare conjecture."

The evidence in Juan H. is far more reflective of

consciousness of guilt than what we have here. Unlike the

petitioner in Juan H., O'Laughlin was not caught in a lie about

whether he was present at the crime scene and did not flee the

scene of the crime. In fact, O'Laughlin approached the police just

minutes after the attack. Similar to the Juan H. court's 26

reasoning, this consciousness of guilt evidence constituted "bare

conjecture" regarding O'Laughlin's guilt and thus renders the SJC

decision that relied primarily on this evidence, objectively

unreasonable.

We reiterate that Juan H. and Newman, while not

controlling, powerfully illustrate how federal courts, acting under

the AEDPA regime, can hold in appropriate circumstances state court

decisions to be objectively unreasonable when applying Jackson.
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Our sister courts' reasoning in these cases underscore why we

believe habeas relief should be granted in the instant case.

Our holding is further bolstered by a post-AEDPA case of

our own, Leftwich v. Maloney, where a petitioner claimed there to

be insufficient evidence for a state court to correctly identify

him as the perpetrator of the offense for which he was convicted.

See Leftwich, 532 F.3d at 21. Although we held that habeas relief

was not warranted in Leftwich, it is helpful to consider the

factors we considered relevant.

In Leftwich, the petitioner argued that there was

insufficient evidence to conclude that he was a principal rather

than an accessory to the murder of a bishop who had taken the

petitioner in when he was released from prison. Id. In holding

that there was sufficient evidence to support a guilty verdict, the

Leftwich court considered that the petitioner confessed to being in

the same place, a ditch, within minutes of when the murder

occurred; that the police recovered from the petitioner a

Leatherman tool whose length and width were consistent with the

victim's wounds; that he "embarked on a wide-ranging cleaning

spree" shortly before his arrest; that forensic evidence included

fingerprint evidence and the victim's blood on the petitioner's

clothes and hands; that the petitioner lied about having any

knowledge of the victim's death; that the petitioner's motive

resulted from the victim's disapproval of the petitioner's use of

company credit card to satisfy a gambling debt; and that the
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"record [was] barren of any evidence as to who besides the

petitioner could have inflicted the fatal stab wounds." Id. at 25-

27.

We note the many distinguishing features of the instant

case as compared to Leftwich. Specifically, unlike the petitioner

in Leftwich, there was no physical or forensic evidence linking

O'Laughlin to the crime scene; O'Laughlin's financial motive was

inconsistent with the evidence in Mrs. Kotowski's apartment; and

O'Laughlin presented compelling third-party evidence that Mr.

Kotowski was the actual assailant. We recognize that the stronger

evidence supporting the petitioner's guilt in Leftwich, when

compared to the present case, is not persuasive by itself to render

the evidence insufficient here. However, the fact that the instant

facts satisfy very few of the criteria the Leftwich court

considered relevant in its Jackson analysis, provides additional

support for our conclusion here that the SJC's decision to

reinstate the conviction was objectively unreasonable.

We acknowledge the many strands of circumstantial

evidence the prosecution has presented in this case; however, when

viewing this evidence in its totality, as we must do on habeas

review, that evidence is far from sufficient to establish

O'Laughlin's guilt under Jackson. Based on the record before us

and drawing all reasonable inferences in favor of the prosecution,

we hold that it would be overly speculative to conclude O'Laughlin

to be the assailant beyond a reasonable doubt. Accordingly, we
 O'Laughlin also claims that the SJC, in concluding that the 27

trial judge properly excluded a note O'Laughlin alleged to have

supported his third-party culprit defense, violated his

constitutional right to present a defense. In view of our holding

regarding O'Laughlin's Jackson claim, we need not reach this issue.

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conclude that the SJC's decision to uphold O'Laughlin's conviction

was objectively unreasonable.

III. Conclusion

Because double jeopardy principles apply here, we remand

to the district court to order O'Laughlin's unconditional release

with prejudice to reprosecution. See Burks v. United States, 437

U.S. 1, 18 (1978) (holding that "the Double Jeopardy Clause

precludes a second trial once the reviewing court has found the

evidence legally insufficient"), quoted in Foxworth v. Maloney, 515

F.3d 1, 2 (1st Cir. 2008).27

Reversed and Remanded for action consistent with this

opinion.