United States Court of Appeals 

For the First Circuit 

No. 15-1143 

JOSE ROSARIO, 

Petitioner, Appellant, 

v. 

GARY RODEN, Superintendent; 

MARTHA M. COAKLEY, Attorney General of 

 the Commonwealth of Massachusetts, 

Respondents, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Denise J. Casper, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lynch and Kayatta, Circuit Judges. 

 Max D. Stern, with whom Todd & Weld LLP was on brief, for 

appellant. 

 Eva M. Badway, Assistant Attorney General, Criminal Bureau, 

with whom Maura Healey, Attorney General of Massachusetts, was on 

brief, for appellees. 

December 7, 2015 
- 2 - 

LYNCH, Circuit Judge. Jose Rosario was convicted in 

September 2000 of the first degree shooting murder of Mario Cordova 

in Springfield, Massachusetts. He was sentenced to life 

imprisonment.1 There is no claim Rosario was the shooter. He was 

convicted because he ordered the shooting, which was carried out 

by a member of the Latin Kings gang subordinate to him. The state 

trial court denied his motion for a new trial, and the Supreme 

Judicial Court (SJC) affirmed his conviction. Commonwealth v. 

Rosario, 950 N.E.2d 407, 411 (Mass. 2011). That opinion contains 

a full recitation of the facts, to which we refer the reader. 

Before us is Rosario's appeal from the district court's 

denial of his habeas corpus petition, a denial we review de novo. 

Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006). If the state 

court had ruled on the due process claim raised by the petitioner, 

we would review the findings of the state high court through the 

deferential lens of the Antiterrorism and Effective Death Penalty 

Act of 1996 (AEDPA). See 28 U.S.C. § 2254. But we do not do so 

here. That is because, on our reading, the SJC did not address 

the precise constitutional due process issue presented here. One 

might consider, given the high quality of that court, whether that 

 1 Rosario was also convicted of the state law crimes of 

unlawful possession of a firearm, unlawful carrying of a firearm, 

and unlawful discharge of a firearm within 500 feet of a dwelling 

or other building. He received concurrent sentences for these 

convictions. 
- 3 - 

was because the issue was not clearly argued to it. But the 

Commonwealth has chosen not to defend on the basis that this claim 

was not exhausted before the SJC, and it is a close question 

whether the Commonwealth has waived reliance on the exhaustion 

requirement. See 28 U.S.C. § 2254(b)(3). Because we affirm the 

denial of the petition on the merits, we can bypass the exhaustion 

question. See id. § 2254(b)(2). 

And so we review de novo the due process violation claim 

asserted in this case. See Hodge v. Mendonsa, 739 F.3d 34, 41 

(1st Cir. 2013); Clarke v. Spencer, 582 F.3d 135, 145 (1st Cir. 

2009). The claim essentially is that the Commonwealth failed to 

disclose a document which was evidence of a possible cooperation 

agreement between one prosecution witness and the Commonwealth. 

Had the document been timely disclosed during or before trial, it 

could have been used to impeach the testimony of the witness, Luis 

Rodriguez, as described below, and, possibly could have shown the 

prosecution in a bad light for withholding evidence. 

The Commonwealth does not dispute that the document was 

not disclosed, and it assumes in its brief that the document's 

production may have been favorable to the accused. However, the 

Commonwealth argues that the document was immaterial because its 

disclosure would not have affected the result of the proceeding. 

We find on this habeas petition, that had the document been timely 

disclosed to the defense, there is no "reasonable probability" 
- 4 - 

that the result of the proceeding -- conviction -- would have been 

different. See Kyles v. Whitley, 514 U.S. 419, 433–34 (1995). 

Our confidence in the outcome of conviction is not undermined. 

See United States v. Bagley, 473 U.S. 667, 682 (1985). 

I. 

A. The Suppressed Material 

Rodriguez was a prosecution witness at trial and 

testified as an eyewitness to the shooting. He was not alleged to 

be involved with the shooting in any way. Rodriguez testified 

that on the night of the shooting, he was at the apartment of a 

friend, Jenette Vasquez, with a number of other people, including 

Rosario. He testified that at some point in the evening, he heard 

Vasquez on the phone talking to Johnel Olmo, a friend of the 

victim. Rosario asked Vasquez for the phone, and Rodriguez 

testified that he heard Rosario tell Olmo, "I'm your worst 

nightmare." 

The evening after Rodriguez testified at Rosario's 

trial, Edward Fogarty, Rodriguez's attorney on unrelated pending 

drug offenses, contacted the prosecutor's office, saying that 

Rodriguez believed he and the Commonwealth had an agreement 

involving some sort of consideration for Rodriguez's testimony. 

The prosecution then informed Rosario's counsel about its 

conversation with Fogarty. 
- 5 - 

After the issue was raised to the court, the judge held 

a voir dire. The Commonwealth claimed there was no agreement, and 

both Rodriguez and Fogarty testified that it was their 

understanding that there was an agreement. Rodriguez testified 

that the prosecutor said that "she can help . . . [him] on [his] 

drug cases; that she won't promise [him] nothing but she'll try to 

do something." Fogarty testified that although there was nothing 

in writing, the prosecutor "said something to the effect that she 

could help him on his case," without giving specifics. 

At that time, the trial judge did not make a finding 

regarding whether there was an agreement but said that Rosario 

could recall Rodriguez to the stand, where he could be questioned 

about his belief regarding an agreement. Rosario's counsel 

declined, arguing, "the problem is calling the witness back in the 

middle of the trial after the jury has seen him and has seen that 

he's left. I don't think this can be corrected." Rosario's 

counsel moved for a mistrial, which the court denied because it 

thought that "whatever prejudice that may be shown by the defendant 

can be rectified at this stage of the trial." 

The next day, Rosario's counsel requested to call 

Rodriguez and Fogarty to testify about their impressions of their 

meeting with the prosecution. He also said that he would like to 

disclose -- either through testimony or a stipulation from the 

Commonwealth -- that this information came to Rosario's counsel's 
- 6 - 

attention only the prior day. He argued that challenging the 

prosecutor's credibility was within Rosario's due process rights 

under Kyles v. Whitley. The trial court declined to allow 

testimony of when Rosario's counsel became aware of the possible 

agreement. Rosario's counsel said that "[i]f the ruling of the 

court is that I can't get into the area that I want to get into 

(and I object to the ruling) then I will not call Mr. Rodriguez 

back to the stand." 

After the trial, when Fogarty was cleaning out his files, 

he found an unsigned document, a purported cooperation agreement 

dated May 1, 2000, on the district attorney's letterhead addressed 

to Fogarty saying, "This letter confirms the agreement between 

your client, Louis Ramon Rodriguez, . . . and the 

Commonwealth . . . ." It listed six terms of agreement, and it 

said it was from the assistant district attorney. In October 2001, 

Rosario filed a motion for a new trial with the SJC, which remanded 

it to the Superior Court. That motion was heard by the same judge 

who presided over the trial. She held an evidentiary hearing on 

the motion in November 2002. In May 2010, the trial judge denied 

the motion for a new trial, finding that at most, the letter 

confirmed that the prosecutor thought a deal was possible, not 
- 7 - 

that it corroborated the existence of an actual agreement.2 The 

judge also found that the new evidence did not change the fact 

that Rosario's counsel chose not to recall Rodriguez to let the 

jury know that Rodriguez believed there was a cooperation 

agreement. 

Rosario appealed to the SJC, raising a number of issues, 

including the denial of his motion for a new trial. The SJC found 

no abuse of discretion in the trial court's order and, as said, 

affirmed. In 2012, Rosario filed a petition for a writ of habeas 

corpus in the Massachusetts federal district court, alleging that 

the trial court denied his right to due process, which the district 

court denied. Rosario v. Roden, No. 12-12172-DJC, 2014 WL 7409584 

(D. Mass. Dec. 31, 2014). 

B. Disclosure and Prejudice 

 Under Brady v. Maryland, "the suppression by the 

prosecution of evidence favorable to an accused upon request 

violates due process where the evidence is material either to guilt 

or to punishment, irrespective of the good faith or bad faith of 

the prosecution." 373 U.S. 83, 87 (1963). Impeachment evidence 

"falls within this general rule," when a witness's reliability can 

determine the defendant's guilt or innocence. Giglio v. United 

 2 We note that what was relevant to establishing 

Rodriguez's motive to help the prosecution was his belief that he 

had a deal, not whether Rodriguez's belief was correct. 
- 8 - 

States, 405 U.S. 150, 154 (1972). Evidence is material "if there 

is a reasonable probability that, had the evidence been disclosed 

to the defense, the result of the proceeding would have been 

different." Kyles, 514 U.S. at 433–34 (quoting Bagley, 473 U.S. 

at 682). "A 'reasonable probability' of a different result is . . . 

shown when the government's evidentiary suppression 'undermines 

confidence in the outcome of the trial.'" Id. at 434 (quoting 

Bagley, 473 U.S. at 678). 

 There were two main prosecution witnesses -- both Latin 

Kings members subordinate to Rosario -- whose testimony was 

essential to the verdict. Both acknowledged they had cooperation 

agreements, but that did not dissuade the jury from convicting 

Rosario. Rodriguez's testimony certainly supported the verdict in 

the sense that he corroborated testimony about the locations of 

the defendant and other players at various times. 

 But the main import for the prosecution of Rodriguez's 

testimony was that he heard Rosario tell Olmo, "I'm your worst 

nightmare."3 Significantly, there were two other witnesses who 

testified as to the "nightmare" statement. First, Sharoll Burgos, 

who was at Vasquez's house as well, testified to hearing Rosario 

say that. When the assistant district attorney discussed the 

statement at closing argument, she said "Sharoll Burgos testified. 

 3 Rodriguez did not mention this statement to the police 

in his initial interview with them. 
- 9 - 

'I'll be here when you get here. I'm your worst nightmare.'" When 

the prosecutor mentions the "nightmare" statement a second time, 

she again attributes it to Burgos, not Rodriguez. Further, the 

assistant district attorney did not ever in closing argument 

attribute the statement to Rodriguez's testimony. In fact, the 

prosecutor's only mention of Rodriguez in closing argument was in 

the context of the shooting itself where, in response to an 

argument made by Rosario's counsel, she says, "Do you really think 

that Luis Rodriguez remembers, oh, he was fixated straight ahead?" 

Second, Olmo himself testified that Rosario made the statement to 

him. Rosario concedes that other than for his testimony about the 

statement, Rodriguez "admittedly, was . . . a relatively minor 

witness for the Commonwealth."

 Rosario contends that Rodriguez was the only neutral 

witness because Burgos was romantically interested in Olmo, 

"thereby giving her a reason to corroborate whatever his story 

was." He also notes that Burgos did not mention that Rosario was 

at Vasquez's apartment when she first spoke to the police and that 

Burgos told the police about Rosario's threat only after Olmo gave 

a statement to the police. The defense counsel cross-examined 

Burgos about this at trial. And the defense counsel also impeached 

Rodriguez with prior convictions and cross-examined him about 

inconsistencies between his statements to the police -- where in 

the report of his first statement, there was no mention of 
- 10 - 

Rodriguez hearing Rosario say anything, and in the report of the 

second statement, it said that Rodriguez heard Rosario say, "I'm 

your worst enemy" (not "nightmare") -- and his testimony on the 

stand. 

 There was also other independent evidence from which the 

jury could conclude beyond a reasonable doubt that Rosario had 

ordered the shooting. The jury learned about three incidents where 

Rosario confronted Olmo and the victim before the night of the 

murder. Rosario's disinterested coworker told the police that the 

day after the shooting Rosario was acting differently and said, "I 

snuffed somebody." Rosario also called Olmo the day after the 

shooting to say, "I told you something bad would happen . . . Latin 

King love." There was no reasonable probability that the unsigned 

letter of a possible cooperation agreement would have affected the 

outcome. 

 Finally, Rosario argues that evidence of the suppression 

itself was material because it could have suggested that the 

prosecution had something to hide and that "the Commonwealth had 

such a vested interest in sticking to its theory of [the] 

prosecution that it felt the need to offer Rodriguez a cooperation 

agreement." Ultimately, this claim too fails. Unlike Kyles, which 

involved several pieces of evidence favorable to the defendant 

that if disclosed would have born light on the "thoroughness and 

even the good faith of the investigation," 514 U.S. at 423–29, 
- 11 - 

445, or United States v. Flores-Rivera, which involved a letter a 

witness sent to the prosecutor that the prosecutor acknowledged 

having, disclosure of which could have allowed "counsel to call 

into question the credibility of . . . implicitly, the lead 

prosecutor," 787 F.3d 1, 11–12, 19 (1st Cir. 2015), here, whether 

there was a cooperation agreement is itself very much in dispute. 

 At the motion for a new trial hearing, the assistant 

district attorney maintained that no agreement was offered and 

that the letter should not have been sent. Further, the letter 

was unsigned, and while it began with Rodriguez's name on it, at 

the end, it included an "Acknowledgement of Agreement" with the 

name of an unrelated party, suggesting that while the Commonwealth 

may have contemplated a cooperation agreement, the document was 

not a final draft. The letter would have had minimal value in 

calling the prosecutor's motives into question, and there is no 

reasonable probability that it would have affected the jury 

verdict. 

II. 

 We affirm the denial of the habeas petition.