No. 21-1899

MAC HUDSON,

Petitioner, Appellant,

v.

SHEILA KELLY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

Alan D. Campbell for appellant. Eva M. Badway, Assistant Attorney General of Massachusetts, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellee.

March 5, 2024 BARRON, Chief Judge. Mac Hudson appeals from the District Court's denial of his petition for a writ of habeas corpus challenging his 1997 Massachusetts state-law convictions for, among other things, second-degree murder. We affirm.

I.

A.

In 1990, Hudson and Charles Hughes were tried together in Massachusetts Superior Court for charges relating to the April 22, 1989 shootings of Derek Twitty and Mark Jones while they were selling heroin in Boston, Massachusetts.1 Twitty died from his injuries, while Jones survived. The charges were for first-degree murder, assault and battery by means of a dangerous weapon, assault with intent to murder, assault with intent to rob, and unlawful possession of a firearm. Hudson and Hughes were found guilty of the lesser-included offense of second-degree murder and the other charged offenses. Commonwealth v. Hudson, 30 N.E.3d 133, 2015 WL 2037025, at *1 (Mass. App. Ct. 2015) (unpublished table decision). The Massachusetts Appeals Court ("MAC") later reversed those convictions for reasons not relevant here and remanded the case

1We recount the facts of the case as they were found in the last reasoned decision by a state court -- here, the Massachusetts Appeals Court's decision in Commonwealth v. Hudson, 30 N.E.3d 133, 2015 WL 2037025 (Mass. App. Ct. 2015) (unpublished table decision), review denied, 35 N.E.3d 720 (Mass. 2015) -- "supplemented with other facts from the record that are consistent" with the MAC's findings, Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006). - 2 - for a new trial. See Commonwealth v. Hudson, 634 N.E.2d 154 (Mass. App. Ct. 1994) (unpublished table decision).

Hudson and Hughes were tried for the second time in 1997 in connection with the shootings of Twitty and Jones. Hudson, 2015 WL 2037025, at *1. Hudson's resulting convictions are the subject of the federal habeas petition before us here.

At the start of jury empanelment for this second trial, Hudson was informed by the trial judge that sixteen jurors would be seated and that he would have sixteen peremptory challenges. See Commonwealth v. Hudson, 735 N.E.2d 1272, 2000 WL 1477124, at *1 (Mass App. Ct. 2000) (unpublished table decision).

Toward the end of the third day of jury selection, by which point fifteen jurors had been seated, the trial judge commented about trying to seat the sixteenth juror by stating "[w]e're going to try one more, and after that I quit." After another juror was interviewed and excused for cause, the trial judge announced that the proceedings would go forward with only fifteen jurors. At this point, Hudson had exercised only eleven of his sixteen allotted peremptory challenges, and counsel objected, stating that he had been saving his challenges to use on a "perfect [sixteenth] juror." The trial judge noted the objection yet proceeded to trial with the fifteen jurors.

At trial, the Commonwealth called four individuals to testify as ey