          United States Court of Appeals
                     For the First Circuit


No. 18-1979

                          MIGUEL ROMAN,

                     Petitioner, Appellant,

                               v.

                LISA A. MITCHELL, Superintendent,
                 Old Colony Correctional Center,

                      Respondent, Appellee.


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

        [Hon. Allison D. Burroughs, U.S. District Judge]


                             Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Donald A. Harwood and Donald A. Harwood, Esq. PC on brief for
appellant.
     Susanne Reardon, Assistant Attorney General of Massachusetts,
and Maura Healey, Attorney General of Massachusetts, on brief for
appellee.


                          May 13, 2019
             KAYATTA, Circuit Judge.     Miguel Roman appeals from the

district court's dismissal of his habeas petition under 28 U.S.C.

§ 2254 contesting his state-court conviction and ongoing detention

for first-degree murder.     The district court determined that the

Massachusetts Supreme Judicial Court (SJC) acted reasonably in

concluding     that   the   evidence     sufficiently   supported   the

conviction.    We affirm for the same reason.

                                  I.

                                  A.

             Because this appeal challenges the sufficiency of the

evidence, we recite the facts "in the light most compatible with

the jury's verdict, consistent with record support."       Leftwich v.

Maloney, 532 F.3d 20, 21 (1st Cir. 2008) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).      We summarize here only those

central facts sufficient to explain our conclusion.           A fuller

recitation of these facts are set forth in the SJC's opinion.       See

Commonwealth v. Roman, 18 N.E.3d 1069, 1071 (Mass. 2014).

             The events underlying Roman's conviction took place in

the early hours of January 29, 2010 in Holyoke, Massachusetts.      At

around 2:00 a.m., five men left a nightclub in a Nissan Altima.

Luis Soto, whose girlfriend owned the car, drove, Angel Fernandez

was in the front passenger seat, his brother Felipe sat behind him

in the right rear seat, Roman was behind the driver's seat, and

Shawn Tiago sat in the middle of the backseat between Roman and


                                 - 2 -
Felipe.    Soto drove down High Street until Roman told him to turn

right onto Essex Street.    Soto testified that, after he turned the

car onto Essex Street, he "heard a detonation."    He could not tell

whether there had been more than one shot because his ears were

ringing.

             Soto immediately stopped the car and shifted it into

park.     Felipe and then Angel got out of the vehicle and started

running toward High Street.     Soto testified that he turned around

and saw Roman holding a gun in his right hand, close to Tiago's

head.     Tiago slouched forward toward the front of the car.    After

initially hesitating, Soto was the third person to exit the Altima.

             Roman then got out of the vehicle, walked around the

back of the car, opened the rear passenger's side door, and leaned

inside.     As Soto ran toward High Street, he heard another shot.

The car proceeded to Newton Street, where Tiago's body was later

found in the road with two bullet holes in the left rear side of

his head and one in his right temple.

             Another government witness, Barbara St. Amand, who lived

on Newton Street, testified that she looked out her window after

hearing one or two gunshots and tires screeching outside.       She saw

a man wearing a black hooded jacket, the same type Felipe was

wearing that night, pull something out of the rear passenger side

of the car and re-enter the backseat on the driver's side.




                                 - 3 -
             Meanwhile, Felipe, Angel, and Soto arrived at Sam's

Food, a nearby store on High Street.               Soto and Angel went inside

the store, and Felipe stayed outside, close to the door.                        Roman

called Angel's cellphone at 2:04 a.m., and the call connected for

forty-four seconds.       Roman, driving the Altima, arrived at Sam's

within two minutes after the car first stopped on Essex Street.

Roman left the car outside the store and ran away.

                                          B.

             In February 2010, a Hampden County grand jury indicted

Roman for first-degree murder and possession of a class B substance

(cocaine).     The case was severed from those of co-defendants Soto

and   Angel,    who   agreed   to    testify   against       Roman    pursuant     to

cooperation agreements.

             After trial, the jury found Roman guilty on both charges.

The   Hampton    County     Superior       Court    sentenced        him   to    life

imprisonment for the murder conviction.              Roman timely appealed to

the SJC, arguing, inter alia, that the trial court erred by denying

his motion for a required finding of not guilty at the close of

the Commonwealth's case.            The SJC affirmed his convictions and

found the evidence constitutionally sufficient to establish that

he shot Tiago.

             In January 2016, Roman timely filed a petition for a

writ of habeas corpus in the U.S. District Court for the District

of    Massachusetts,      raising     a    single    claim     challenging        the


                                      - 4 -
sufficiency of the evidence grounding his murder conviction.                 The

district court denied his petition but issued a Certificate of

Appealability.        We have jurisdiction under 28 U.S.C. § 2253(a).

We review the district court's denial of Roman's habeas petition

de novo.      See Scott v. Gelb, 810 F.3d 94, 98 (1st Cir. 2016).

                                        II.

              In this case, the petition assails only the sufficiency

of the evidence as governed by Jackson v. Virginia, 443 U.S. 307

(1979).1      To set aside the verdict under the Due Process Clause of

the U.S. Constitution for insufficient evidence, Roman needed to

convince the state courts that, "after viewing the evidence in the

light most favorable to the prosecution, [no] rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt."        Id. at 319.       "This standard 'exhibits great

respect for the jury's verdict,'" Winfield v. O'Brien, 775 F.3d 1,

7 (1st Cir. 2014) (quoting Magraw v. Roden, 743 F.3d 1, 4 (1st

Cir.       2014)),   but   it   does   not     insulate   verdicts   based    on

"evidentiary interpretations and illations that are unreasonable,



       1
       Under Commonwealth v. Latimore, 393 N.E.2d 370, 375 (Mass.
1979), Massachusetts state courts apply a sufficiency standard
that is "functionally identical" to the standard promulgated by
the U.S. Supreme Court in Jackson, 443 U.S. at 319. Logan v. Gelb,
790 F.3d 65, 71 (1st Cir. 2015). Thus, "we can securely reason
that in scouring the record for Latimore error and finding none
the SJC effectively answered the federal constitutional question."
Housen v. Gelb, 744 F.3d 221, 225 (1st Cir. 2014) (quoting
Leftwich, 532 F.3d at 24).


                                       - 5 -
insupportable or overly speculative," id. (quoting United States

v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)).         Still, the Jackson

standard is "rarely met where there is plausible evidence to

support a verdict."       Tash v. Roden, 626 F.3d 15, 20 (1st Cir.

2010).

           Having lost in state court at trial and on appeal, Roman

does not get a full redo in federal court.       When a state court has

decided a legal claim on the merits, a habeas petitioner must show

that the ruling was "contrary to, or involv[ed] an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States."          Tash, 626 F.3d at 18

(quoting 28 U.S.C. § 2254(d)(1)).          In short, in a case such as

this, we ask not whether the evidence was sufficient; rather, we

ask   whether    the   SJC's   sufficiency   finding   was   "objectively

unreasonable."     See Hurtado v. Tucker, 245 F.3d 7, 18 (1st Cir.

2001) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)); see

also id. at 16 ("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.").         In this

context, "unreasonable" means that the decision "evinces some

increment of incorrectness beyond mere error."         Leftwich, 532 F.3d

at 23 (citing McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)

(en banc)).


                                   - 6 -
            Here, Roman argues that the SJC's rejection of his

sufficiency claim "constituted an unreasonable application of the

law to the facts [and] . . . was arbitrary and devoid of factual

support."    He contends that Soto's and Felipe's testimony at trial

was "uncorroborated," "perjurious," and "illogical."         Roman's

consistent defense has been that Felipe was the shooter because

Tiago sustained a fatal gunshot wound to his right temple, and

Felipe was seated to Tiago's right.      And, he asserts, Felipe and

Soto both testified to hearing only one shot fired in the car.    He

also points to the testimony of St. Amand, a disinterested witness,

stating that she saw a man dressed like Felipe pulling something

(presumably the victim's body) out of the rear of the Altima and

suggesting that two men were there with the body, as opposed to

the government's theory that Roman alone dumped the body on Newton

Street.

            But, as the SJC found, other trial testimony and video

recordings from local security cameras significantly undercut

Roman's alternate theory.     Soto and Felipe testified that Felipe

fled from the rear passenger's side door as soon as he heard the

first gunshot. Video footage from an Essex Street camera confirmed

that between 2:02:22 a.m. and 2:02:56 a.m., a person from the rear

passenger's seat first exited the car, followed by a person from

the front passenger's seat, and then the driver.    Roman, 18 N.E.3d

at 1073.    The last person to leave the car got out from where Roman


                                 - 7 -
sat, behind the driver's seat.        That person walked around to the

rear   passenger's   side,   and   leaned   inside   for   about   thirteen

seconds, before getting in the driver's seat and driving away.

Id. Accordingly, the SJC reasonably determined that the jury could

have found that Felipe, then Angel and Soto, abandoned the car and

ran toward High Street, while Roman stayed behind and shot Tiago

again, just as Soto testified.

           Footage from Sam's Food, in turn, showed three men (not

two) arriving at the store between 2:04:02 a.m. and 2:04:17 a.m.

The recording also showed Angel talking on his cellphone at the

same time the Altima arrived out front.         Coupled with telephone

records showing that Roman called Angel at around the same time as

the car pulled up, the SJC reasonably concluded that the jury could

have found in this evidence further support for the testimony that

Felipe was at the store when Roman arrived with the car.

           The security camera recordings also allowed the SJC to

determine that only one minute and fifty-six seconds passed from

the time the Altima stopped on Essex Street until it arrived at

Sam's Food store.    The SJC therefore reasoned that "[t]here would

only have been enough time for the convergence of Soto, Angel, and

Felipe, and the Altima at Sam's . . . if events had occurred as

Soto and Felipe testified."        Roman, 18 N.E.3d at 1074.       That is,

if the three men who arrived on foot ran directly to Sam's from

Essex Street.


                                   - 8 -
          It is undoubtedly "within the province of the jury" to

evaluate witness credibility.         Foxworth, 570 F.3d at 427.      A

rational jury was certainly entitled to discredit St. Amand's

testimony in light of contravening evidence.      See Housen, 744 F.3d

at 226 ("On review for evidentiary sufficiency, . . . 'a habeas

court may not freely reweigh competing inferences but must accept

those reasonable inferences that are most compatible with the

jury's verdict.'"    (quoting Magraw, 743 F.3d at 7)); Hurtado, 245

F.3d at 19 ("[W]here the argument over the correctness of the state

court's ultimate conclusion . . . call[s] for a choice between

credible (although mutually opposed) views, the habeas inquiry on

objective unreasonableness ends.").

          Roman's argument that the fatal gunshot wound to Tiago's

right temple "conclusively" proves that Felipe was the shooter

likewise falls flat.     The medical examiner testified that Tiago

sustained three gunshot wounds to the head:       two to the left rear

side almost on top of one another and a third on the right temple.

And at least one of the left-side wounds was also potentially

fatal.   Roman, 18 N.E.3d at 1075.        In any event, the evidence

credibly placed Roman on both the left and right sides of the

victim as he moved out of and around the car.

          Felipe's    and    Soto's   testimony   regarding   how   many

gunshots they heard in the car is also not as conclusive as Roman

would have us believe.      Although Soto initially testified that he


                                  - 9 -
heard one detonation, he also said that the sound was "very" loud

and that he could not tell at first whether it came from inside or

outside the vehicle.     Soto clarified, in response to further

questioning, that he could not make out "whether there was one

bang or more than one bang" because his ears were ringing.   Felipe

testified only that he "heard a bang" and that he knew it was "a

gunshot."     These statements are entirely consistent with the

testimony of the government's ballistics expert, who opined that

the type of gun likely used to kill the victim, a Jennings Bryco

model J22 semiautomatic pistol, "is very loud and capable of firing

shots in rapid succession."   Roman, 18 N.E.3d at 1075.   Soto and

Felipe also testified to hearing another gunshot as they ran

towards High Street.   A shell casing recovered from the vicinity

of where the Altima stopped on Essex Street further corroborates

this testimony and the SJC's conclusion that Roman fired a third

shot into Tiago's right temple area as he stood outside the open

right rear door of the car.

            Finally, Roman also emphasizes that, while he had no

motive to kill Tiago, the Gonzalez brothers had been involved in

an altercation with Tiago the week before over an unpaid debt,

after which Tiago threatened to kill Angel.   But, as the district

court explained, because motive, while probative, is not an element

of the crime of deliberately premeditated murder, the absence of

evidence of motive is insufficient to undermine the SJC's decision


                              - 10 -
under Jackson.     See Commonwealth v. Sylvia, 921 N.E.2d 968, 975–

76 (Mass. 2010) (noting that the government is not required to

prove    motive   to    prove   first-degree    murder   on   a   theory   of

premeditation).

            Viewing the evidence as a whole in the light most

favorable to the verdict, we cannot say that the SJC unreasonably

applied Jackson or reached an unreasonable determination of the

facts.   The state court "did not ignore material evidence or a key

argument made by the defendant" and "[i]ts articulated reasons

went to the conclusions it reached."         Hurtado, 245 F.3d at 18.      It

reasonably concluded that a rational jury could have found beyond

a reasonable doubt "that [Roman] fired two shots at close range

into the left temple of the victim, then went around to the other

side of the car, opened the rear passenger's side door, and fired

a third shot into the victim's right temple."

                                     III.

            For   the   foregoing    reasons,   we   affirm   the   district

court's denial of habeas relief.




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