          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
              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.


                                  - 2 -
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"


                                - 3 -
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.




                                        - 4 -
              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


                                        - 5 -
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




                                     - 6 -
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.


                                          - 7 -
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.


                                        - 8 -
'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


                                     - 9 -
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,


                                    - 10 -
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.




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