Full opinion text
MEMORANDUM AND ORDER YOUNG, Chief Judge. Gilbert Dias (“Dias”) was convicted of second-degree murder in 1975 and was sentenced to life in prison. He now petitions this Court, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that the Commonwealth of Massachusetts is holding him in violation of the Constitution and laws of the United States. I. BACKGROUND Over the past twenty-five years, numerous state and federal courts have addressed myriad challenges brought by Dias against his conviction. In order to place Dias’s current petition in context, this Court will begin by summarizing what transpired at these earlier proceedings. A. Facts On direct appeal, the Massachusetts Supreme Judicial Court fully summarized the evidence presented at trial against Dias. This Court adopts that recitation of facts, as is proper absent clear and convincing evidence that casts doubt on the state court’s determination. See 28 U.S.C. § 2254(e)(1); Hurtado v. Tucker, 245 F.3d 7, 10 & n. 4 (1st Cir.2001); Avellar v. DuBois, 30 F.Supp.2d 76, 79 (D.Mass.1998) (Stearns, J.) (citing, inter alia, Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 66 L.Ed.2d 722 [1981]). On the evening of March 15, 1974, the victim Gerald Travis (Travis), accompanied by Russell Greene (Greene), and Fernando Mello (Mello), went to a bar, The Republican Club, in Fall River. There the group met another friend, Thomas Wing (Wing). Each of them consumed several beers. In the course of the evening, the young men traveled to another bar where they continued their beer drinking and socializing until closing time, whereupon they proceeded to a third tavern, which had also closed. Not yet ready to call an end to the evening’s activities, Mello’s companions accepted his invitation to go to Dias’s apartment; Mello, the only member of the group acquainted with Dias, had been staying at his apartment for several days prior to March 15. Though no one was at home, the group entered the apartment, and, while Mello gave Wing and Greene a tour of the premises, Travis retired to the kitchen and began frying eggs and sausages. In the course of their tour, Mello happened on two shotguns leaning against the bureau in Dias’s bedroom and a box of shotgun shells atop the bureau. One of the shotguns, from which the parties agree the fatal shot was fired, was capable of firing only once, and then had to be “broken open” to be reloaded. Although noticing that this gun was unloaded, Mello, wary that his friends might engage in horseplay, hid the gun under a couch in the Iivingroom and put the bullets in Dias’s bureau. Soon after, Dias returned to his apartment in the company of several friends. Except for Dias, no one in the group arriving was acquainted with any member of Mello’s party. Dias appeared upset. According to various accounts, this was because he had lost his wallet, because of the unexplained presence of unknown persons who had placed the kitchen in a state of disarray, or because he could not locate his guns. At any rate, Dias found a gun and shells, loaded the gun, and came into the kitchen. He pointed the gun at Greene, and demanded that the premises be vacated. There was a conflict in the testimony as to what transpired thereafter. Mello, Greene, and Wing, whose accounts essentially coincided, testified that as Dias entered the kitchen the shotgun was in the “closed” position and the hammer was cocked. Greene pushed the barrel of the shotgun away from his face. At the same time, Travis jumped toward Dias, the lights went out momentarily, and Travis was fatally shot. Michael Sturgeon (Sturgeon), the only defense witness, was in the group which accompanied Dias to the apartment. He testified that as Dias came into the kitchen, the shotgun which he was brandishing was in the “broken” position, and thus could not be fired. According to his version, Travis jumped toward Dias, and, grabbing the shotgun by the barrel, tore it from the defendant’s hand. Still holding the barrel, Travis swung the shotgun at Dias, attempting to use the butt end as a club. Dias put up his arm to fend off the blow, and, on contact, the shotgun slammed shut and accidentally discharged into Travis’s chest area. Commonwealth v. Dias, 373 Mass. 412, 413-15, 367 N.E.2d 623 (1977), available at Resp’t’s Ex. 5. A more detailed account of the facts is found in Dias v. DuBois, No. 93-12566, slip op. at 2-7 (D.Mass. Feb. 26, 1996) (Woodlock, J.), available at Pet’r’s Ex. 18. B. Prior Proceedings 1. Trial Dias was indicted on a charge of first degree murder and retained Kenneth Sullivan (“Sullivan”), an experienced and distinguished criminal lawyer, to represent him at trial. Trial was held before the Honorable Vincent Brogna, Justice of the Superior Court. Justice Brogna summarized the facts at trial as follows: The defendant did not testify. The Commonwealth called a police officer, Edward Mello, who testified that when he and Officer McDonald went to the scene of a reported shooting they were told by three people that the man who shot their friend went into an apartment across the street. Officers Mello and McDonald went to the apartment that had been indicated and found the defendant, with a woman wiping blood off his face. The officers had followed a trail of blood. Officer Mello was asked: “Q. Did you initiate any conversation with the defendant?” A. No, sir. Q. Did the defendant say anything to you, sir? A. He just said that he got beat up by some friends. Q. Did he relate any other incident to you that occurred that night shortly before? A. No, sir. Q. Did he relate any shooting? A. No, sir. Q. Did he relate any complaints about a disturbance in his apartment? A. No, sir. Q. Then what took place? A. “I took him out of the house and placed him in the cruiser.” The defendant was then transported to the Fall River police station. Officer Mello testified that there was no conversation with the defendant in the cruiser; and that when they arrived at the police station the defendant was advised of his rights. The defendant was then asked if he would like to make a statement, and he stated that he didn’t. There was further conversation, and the defendant did make a statement, which was exculpatory in that he stated that there was a struggle between himself and the victim for the gun, during which struggle it fired into the victim’s stomach. He then said that he didn’t want to make any more statements until he was advised by an attorney and said that he had been injured and would like to be treated. He was thereupon sent to the Union Hospital. In his closing argument the Assistant District Attorney, after reciting the evidence relating to the manner in which the Commonwealth alleged the shooting took place, argued as follows: “Now, everyone scatters, including Mello (not Officer Mello), Wing and Greene. Greene tells us he is outside, he’s upset. He told you what he did with Dias. Wing told you what he did with Dias. And Dias runs off to an apartment.” “Ask yourselves this: If you were there that night, and you ran to another apartment and the police came, would you tell them, T was just beat up’? Would you stop there, knowing that in your apartment someone has been shot, or a bullet was fired? Would you say, ‘There’s been an awful accident in my apartment. This is what happened; somebody has been accidentally shot’. Do you think you might say, ‘I am okay, go back and see somebody in my apartment, I think he’s hurt bad.’ And if you don’t say that, do you think there’s a reason why you don’t say that, do you think there’s a reason why you don’t say that to a police officer?” Commonwealth v. Dias, No. 48536, slip op. at 1-4 (Mass.Super.Ct. Oct. 21, 1980), available at Resp’t’s Ex. 7. Sullivan did not object to the testimony and argument above, nor did he object to the prosecutor’s assertion, in his closing argument, that Dias had stated that he was “going to kill someone.” Pet. at 10-11. In fact, Dias stated that he was going to kill pigs, not humans. Id. At the conclusion of the trial, Sullivan took exception to the emphasized jury instructions reprinted below: [Friday, October 10,1975.] THE COURT: .... Now, you will decide the case based upon the evidence that you have heard, the exhibits that have been introduced before you. You may use what you saw on the view, and upon the law as I explain it to you. I think by this time you know that it is your function and yours alone to determine factually what happened. It is your province and yours alone to determine what part — all, or part, or none— of the story that any witness or the opinion of any witness is expressed that you are going to believe and follow. This is your function, not mine. At the outset, as in every criminal trial, as I told you before, the defendant, Mr. Dias, is presumed innocent. This means that you are to draw no inference against him by reason of the fact that he was arrested, charged with a crime, indicted by a grand jury. As I told you earlier, a grand jury indictment is merely a mechanical procedural way of starting a criminal proceedings. The presumption of innocence also means that you are to draw no inference against the defendant if he chooses, as here, not to take the stand in his own behalf. He does not have to prove that he is innocent. He does not have to put on any witnesses if he does not want to. The Commonwealth has to prove that he is guilty, and the Commonwealth has to prove it beyond a reasonable doubt. For example — and I will go into this a little more fully, perhaps, because, as you notice, I don’t use any notes in the charge, even in a murder charge, I talk right off the cuff. What this means is, that the defendant does not have the burden of convincing you that this killing was accidental or that, for example, somebody swung a gun, hit Dias’ arm and the gun accidentally went off. He doesn’t have to prove that. The question that you will be asking yourselves eventually after I explain the law to you, is that in view of that testimony, if you believe it, when you weigh it against other evidence in the case, including the medical report, the ballisti-cian’s opinion, in view of that, are you convinced that the Commonwealth has proven the crime beyond a reasonable doubt. And now the words, “beyond a reasonable doubt,” are a legal shorthand expression that stands for the degree of certainty that is required in a criminal case, any criminal case, before a jury may convict a person of a crime, any crime. The words, “beyond a reasonable doubt,” do not mean that the Commonwealth has to prove that the defendant is guilty to a mathematical or to an absolute certainty. There would hardly ever be a case that is heard by a jury that there isn’t some possibility that the defendant didn’t do it. What it rather means is that after discussing amongst yourselves all the evidence in the case, determining what part — all, none, or part — of the story any witness that you have heard on the stand you are going to believe. Before you may convict a defendant, you must be sure, you must be sure, to a moral certainty that he is guilty. After reviewing all of the evidence, discussing it thoroughly amongst yourselves, if you have any serious unanswered questions about the defendant’s guilt, then by law he must be given the benefit of the doubt and be acquitted. Now, the indictment, a copy of which you will have in the jury room with you, states that the grand jurors of the Commonwealth on their oath present that Gilbert Dias on or about the 16th day of March, 1974, at Fall River, in the County of Bristol, did assault and beat one Gerald Travis with intent to murder him, and by such assault and beating did kill and murder the said Gerald Travis. Now, you will notice that nowhere in that indictment are the words, first degree murder or second degree murder. The reason for that is that there is only one crime of murder. There are two degrees, which vary in their seriousness and in their punishment, as I will explain to you later. But there is only one crime known as murder. And for the purpose of this case, it is the unlawful taking of the life of another human being with malice aforethought and without sufficient circumstances as to reduce it to manslaughter. I will explain to you later what manslaughter is. Notice, I said it is the unlawful taking of another human life with malice aforethought. Now again, malice aforethought is another legal shorthand expression that means and stands for this: Either the specific intention to kill or to do serious bodily injury, or the doing of some act intentionally that we know in our common experience there is a grave likelihood if that act is done that either death or serious bodily injury will result. Again, it is either the specific intention to kill or do serious bodily injury. An intent is what is in a person’s mind- — and I will go into that a little more fully — or the doing of an act, the intentional doing of an act which we all know from our common experience is so inherently dangerous that there is a grave likelihood that either death or serious bodily injury will result from the doing of that act. For example, we know from our common experience that if you take a gun, whether it be a shotgun, rifle, or revolver, or pistol, and you load it, and you aim it at a person or into a crowd, and you pull the trigger, there is a serious likelihood that someone is going to get killed or seriously injured. The law allows — and notice, I said, allows, — you to infer malice aforethought from the doing of an act, if you find it so, the intentional doing of an act, that we know is so inherently dangerous that a death or serious bodily injury will result. Notice that I said the law allows you. It does not require you to infer malice aforethought. It allows you to if you, under all the circumstances, wish to. And now, the crime that I have defined for you is second degree murder. First degree murder in the context of the evidence in the case, is the unlawful killing of a human being with deliberate, premeditated malice aforethought. In order to convict a defendant of first degree murder, you must first find — and any time I say you must first find or must be convinced, it must be beyond a reasonable doubt — that there was a killing with malice aforethought, either with the specific intention to kill or to do serious bodily injury, or the intentional doing of an act that is so inherently dangerous as the law infers malice aforethought. But that in order to convict on first degree murder, there must be the added elements which the Commonwealth has to prove beyond a reasonable doubt. The Commonwealth has the burden not only of proving the murder, but the degree of murder. There must be the added element of deliberate premeditation, which means in layman’s language, that there must have been an intention formed and thought about, deliberated on, to kill or do serious bodily injury. Now, there is no time requirement. I can’t tell you that for first degree murder a person has to plan for five minutes or ten minutes, or three days, or five seconds. We all know that the human mind acts very rapidly. But in order to find a person guilty of first degree murder, you must be convinced beyond a reasonable doubt that if it was murder as I explained it to you, that the murder was deliberately premeditated, thought about, for however long or short a period it took the defendant to meditate or to deliberate and to form the intent: I am going to kill or do serious bodily injury. Again, I have talked about and will be talking about in the charge, about the word, “intent.” This is what goes through a person’s mind. But it is an element of every crime and must be proven just like anything else. The way you determine what goes through a person’s mind is from what he says or does not say, what he does or does not do. From that, you may infer intent or lack of it. I have explained to you in general terms the crime of murder and first degree murder. The jury is the one who determines the degree of murder, not I, the District Attorney, or anybody else. Now, let’s attempt, if possible, to put that general definition of murder into the context of the testimony, the evidence that you have heard in this case. If you are convinced, after reviewing all of the evidence, that the defendant Dias went and got a gun, a shotgun, and loaded it and cocked it, and that from either these or other actions of his he had, for whatever period of time it took him to make up his mind, the intention, that he deliberately premeditated on killing and/or doing serious bodily harm with that gun, and that he did it, the you may — and notice, I say, may — not must — you would be warranted in finding him guilty of first degree murder. Now, if you are not convinced that there was a sufficient deliberation, a sufficient planning in one’s mind to form the intention, a specific intention, to deliberately premeditate and form the thought process, I am going to kill or do serious bodily injury, you may still consider as to whether he is guilty of first [sic] degree murder beyond a reasonable doubt. You may consider as to whether if it were he who killed the victim' — of course, I will go into this later — as to whether there was malice aforethought as I defined that term. Either the specific intention to kill although it may not have been deliberately premeditated upon, or the doing of an act that is so inherently dangerous that we know there is a serious likelihood that either death or serious injury will result. For example, the shooting of a gun in a crowded room. We all know that if you intend to pull the trigger of a gun you know is loaded, if you know it is loaded, that there is a serious likelihood that someone is going to get seriously hurt or killed. And if you find that the defendant, again, beyond a reasonable doubt, if you find it, he took a loaded gun and pulled the trigger, whether he was aiming at anybody specifically or not in a crowded room, you may find — notice, I say, may, not must — the requisite malice aforethought to convict him of murder in the second degree. Now, again, you review all of the evidence. You determine whether or not you are convinced that he went around pointing the gun at people, threatening people, you know, to get them out, what he did or did not do, and determine whether or not he had the requisite malice aforethought, or whether or not you are going to infer the requisite malice aforethought from what he did in order to convict him of second degree murder. Now, if you are not convinced that the Commonwealth has proven beyond a reasonable doubt either first degree murder or second degree murder as I defined it, inherent in every indictment for murder is the crime of manslaughter. You see, there are two homicides— one, murder; and the other, manslaughter. Now, if you are not convinced beyond a reasonable doubt that the defendant is guilty of murder, you may ask yourselves, well, is he guilty of manslaughter. Now, manslaughter in the context of this ease, on the evidence, is the involuntary taking of another person’s life, where there is no malice aforethought as I defined that term. If, on the evidence, you are not convinced that there was murder here, but, for example, that you are convinced that the defendant took a gun in a broken position — either broken or unbroken, it doesn’t really matter — and without intending that gun to be used in any way, or to do serious bodily injury to anyone; if what he did, if you find that he went into a crowded room with a gun that he knew was loaded, if you find that that was an act of wanton, willful, recklessness without specific malice aforethought, then if the gun kills somebody, you would be warranted in finding him guilty of manslaughter. On the other hand, if you find that it was not a wanton, reckless act; for example, you are not convinced that what he did was wanton and reckless; for example, if you feel that at most what happened was that he started to walk through the room without any criminal intent, that he was going out to Taunton or wherever else he may have been going, and that a struggle ensued for the gun, that others, including the victim, tried to disarm him, and in the struggle the gun went off accidentally, then he is not guilty of anything. And again, if you are convinced,— although I repeat to you again that the defendant doesn’t have to convince you that the victim grabbed the gun and swung at Dias and hit his arm and it went off and shot him in the stomach,— but of course, if you are convinced that that’s what happened, then again, Mr. Dias isn’t guilty of any crime. [Bench conference held.] MR. SULLIVAN: .... You said shooting a gun in a crowded room. Now, that standing by itself, if someone is hurt by shooting a gun in a crowded room, unless there is a felony being committed, is not murder in the first degree or second degree. THE COURT: It could be murder in the— MR. SULLIVAN: Well, this is what is confusing. Because my notes indicate, you said shooting a gun in a crowded room. THE COURT: Into a crowded room. I said that, I think, didn’t I? MR. GARTH [the Prosecutor]: Yes. MR. SULLIVAN: I got it right down here — shooting a gun in a crowded room. THE COURT: When I used a “crowded room” thing, I was talking about manslaughter. MR. SULLIVAN: You didn’t get into that. THE COURT: I said into a crowd. I think I did. MR. SULLIVAN: Will you correct that? My exception, then. EXCEPTION NO. 14 [End of bench conference.] THE COURT: There is one thing that was pointed out to me that I may not have made clear in the charge, and if not, I will now correct it or try to make it clear now. In order to convict the defendant Dias of first degree murder, you must be convinced beyond a reasonable doubt that his deliberative premeditation was to kill or do serious bodily injury to Travis, not to anybody else, not in general like I said for murder in the second degree. You could infer malice aforethought out of shooting, if you wish to, out of shooting a loaded gun at a crowd, at people in general, without the specific intent to hit any specific individual. For first degree, to find him guilty of first degree murder, you must be convinced, again, beyond a reasonable doubt, that if it was a murder, that he deliberately premeditated to kill or to do serious bodily injury with a gun to Travis. [The jury recessed at 12:40 p.m.] [The jury returned at 2:25 p.m.] THE COURT: Mr. Foreman, and members of the jury. You have asked a question as follows: “Please clearly designate the distinction between murder in the second degree and manslaughter.” The •principal distinction is that murder in the second degree requires that the jury find, again, beyond a reasonable doubt, that there was malice aforethought as I defined that term. And I will redefine it. If you are convinced that Mr. Dias shot the gun that killed the victim, if you are convinced that when he did it he either had an intention to either kill or do serious bodily injury to someone in that room; or, if you find that, again, beyond a reasonable doubt, that he used a weapon, he had a gun loaded and cocked and ready to fire, and that this is the type of an action that in our common experience we know that whether you intend to kill or not there is a serious likelihood that if the gun is fired, someone in that room is going to get seriously injured or killed, then from those facts, if you find them, the jury may infer malice aforethought. I said, “may, ’’ not “must. ” What is happening is that the law feels that the use, the intentional use of a dangerous instrument, an instrument that is so dangerous that there is a serious likelihood of serious bodily injury or death, that from that action, if a jury wishes to, it may, because of the seriousness, find that the action was done with malice aforethought. Now, the word, “malice,” as used in that expression, malice aforethought, doesn’t mean hatred in the ordinary lay sense. It does not include, for example, you do not have to find that the defendant hated or bore any ill ivill or malice in its ordinary term toward the victim. It is a legal expression entirely, that means, as I told you, either a specific intention to kill or do serious bodily injury; or the doing of an act under such circumstances that we know is so serious that it will lead in all probability — that there is a serious likelihood it will lead to either death or bodily injury. Now, the distinction between murder in the second degree as I have explained it to you and the manslaughter, is that for manslaughter, the element of malice aforethought must be absent, either the specific intent or the inference. You don’t have to draw the inference. You may. The crime of manslaughter in the context of the evidence that you have heard in this case — because there is no other forms of manslaughter here where it would be self-defense or actions under provocation or passion; that is, — in the context of the evidence that you have heard, if you feel that there is no malice aforethought, but that what the defendant did, whatever you find he did, and in the circumstances that he did it, was a wanton, wilful, reckless act but not amounting to malice aforethought, and that as a result of his wanton, wilful, recklessness, a man gets killed, then you may find him guilty of manslaughter. Have I answered the question? Of course, I want to also point out that if you find it was a pure accident, it ivas not a wanton, wilful, reckless act; pure accident, or it happened the other way, then he is not guilty of anything. THE COURT: Are there any exceptions? MR. SULLIVAN: I take exception to what you said. THE COURT: Any specific part? MR. SULLIVAN: No. THE COURT: Just in general? MR. SULLIVAN: Yes. THE COURT: All right, you may have an exception. EXCEPTION NO. 17 [The-jury retired.] [The jury returned at 6:10 p.m.] THE COURT: Mr. Foreman, and members of the jury. You have asked another question, as follows: “The question has come up as to whether the pushing aside of the barrel of the gun, presumably by Greene, constitutes a struggle; and if so, would it be cause to affect the vote as to second degree murder or manslaughter.” I think I will answer that in this way: the pushing [aside] of a gun, if you decide it happened, and/or whether or not there was a struggle, is not the primary issue or the primary question in determining whether the defendant is guilty of second degree murder or manslaughter. If you remember, I told you that in order to find him guilty of second degree murder, that you must be convinced, again beyond a reasonable doubt, that whatever he did, he did with malice aforethought. Malice aforethought, as I said, was either the intention, this is up in his mind — not what happened to a gun or didn’t happen to a gun — the intention to either kill or do serious bodily injury or the doing of an act, he having a loaded gun and pointing it at people. That, the law would allow you to infer, because there is a serious likelihood of serious bodily injury or death will result from the use of a gun, that the law would allow you to infer, if you wish, malice aforethought in the mind, in the actions of the defendant. When you are thinking about a second degree murder, your primary concern should be what he did, not what somebody else did. Your primary concern should be, are you going to infer from or are you going to find from his actions that he either intended to kill or to seriously hurt somebody. Or are you going to imply that he did by reason of the fact, if you find it to be a fact, that knowing a gun was loaded, he put himself with the gun in a position of pointing at people, and then no matter how the gun goes off, if he had malice aforethought, if you infer malice aforethought from his use of a gun. Whether the gun was pushed aside or not momentarily is not your primary concern. If you are not satisfied from his actions or saying what he did do or didn’t that there was malice aforethought, that he either specifically intended to kill or to seriously hurt somebody, and that if you do not feel that you wish to infer malice aforethought from his use of the gun, then in determining as to whether or not he is guilty of manslaughter, then you determine as to whether what he did was wilful, wanton, or reckless conduct. And if so, your primary concern should he, is his going into a room with all those people ivith a gun either cocked or uncocked, or broken or unbroken, is that an act of wilful, wanton, reckless conduct. Because, you see, if you find that his conduct was not willful, wanton, or reckless, then you can arrive at the question as to how the gun went off, if it went off accidentally, completely accidentally. If you find that he was not guilty of wilful, wanton, reckless conduct, but that there was a tussle of some kind with the gun, including the pushing it aside or the leaping when they were trying to disarm him, if what he did was not wilful or wanton, but that the gun either in a struggle or some other way went off accidentally, it is a not guilty, it is not a manslaughter. Have I answered your question? THE COURT: All right, you may go back and resume your deliberations. As a matter of fact, very shortly, we have made arrangements to feed you for supper. So that in about ten minutes, we will be taking you out to eat. [Bench conference held.] MR. SULLIVAN: Judge, I think in view of that question, that the case that was recently decided where the Supreme Court says in manslaughter unless the three aspects are present: passion, anger, there is no touching, that if you instruct them that if those elements are absent and there is no touching and it is accidental, it is not guilty. THE COURT: That case on its facts is not a factual situation which would call here for that type of instruction. I am not going to say any more about it than I already have. You may have an exception. EXCEPTION NO. 18 [End of bench conference.] [The jury retired.] Resp’t’s Ex. 2, at 487-514 (emphasis added). Dias was convicted of second-degree murder at 6:40 p.m. on Friday, October 10, 1975. Id. at 515. On October 14, 1975, Justice Brogna sentenced Dias to the mandatory term of life in prison, id. at 521; Mass.Gen.Laws ch. 265, § 2 (murder), with fifteen years to serve before becoming eligible for parole, id. ch. 127, § 133A (parole). 2. Direct Appeals Dias, by his attorney Sullivan, filed an appeal of his conviction in the Appeals Court on October 28, 1975. Resp’t’s Ex. 3, at 5. On August 18, 1976, Sullivan assigned three errors: (i) the trial justice asked questions of a witness and made a remark that was prejudicial; (ii) the trial justice improperly instructed the jury with respect to the distinction between second-degree murder and manslaughter; and (iii) the trial justice failed to instruct the jury that if the elements of passion and anger are not present and 'there is no touching, and the killing is accidental, the verdict is not guilty. Id. at 6-7. When Sullivan submitted the brief on Dias’s behalf, however, he waived the second and third assignments of error and substituted a new issue: Whether the evidence called for the entry of a verdict of a lesser degree of guilt. Id. at 1-2. Through Sullivan, Dias requested that “the Court exercise its power under General Laws Chapter 278 Section 33E to reduce the murder conviction to manslaughter.” Id. at 11. He argued that “[a]n examination of all the facts discloses that there has been a ‘miscarriage of justice’ in convicting the defendant of murder in the second degree, and that a verdict of manslaughter would be more ‘consonant with justice,’ Commonwealth v. Baker, 346 Mass. 107, 109, 190 N.E.2d 555, (1963).” Id. The Supreme Judicial Court, on its own initiative, ordered direct appellate review. Commonwealth v. Dias, 373 Mass. 412, 413, 367 N.E.2d 623 (1977), available at Resp’t’s Ex. 5. With respect to the issue of allegedly prejudicial questions and remarks by the trial justice, the Supreme Judicial Court held that the remarks of the trial justice were not biased, “they were aimed at developing the most trustworthy testimony and clarifying for the jury the witness’s testimony.” Id. at 417, 367 N.E.2d 623. Moreover, any possibly prejudicial effect of the judge’s questioning was overcome through the judge’s instruction to the jury that they alone were the finders of fact. Id. With respect to Dias’s request under section 33E, the Supreme. Judicial Court examined all the evidence in the trial; the jury instructions on murder, manslaughter, and accidental death; and other cases presenting similar factual scenarios and concluded that the verdict of murder in the second degree was appropriate. Id. at 417-19, 367 N.E.2d 623. Dissatisfied with Sullivan, Dias retained new counsel, Barry Haight (“Haight”). See Dias v. DuBois, slip op. at 8-9; Pet. at 2; Answer ¶ 15(f). On Dias’s behalf, Haight filed a petition in the Supreme Judicial Court for a writ of error on May 22, 1979, stating as its grounds, “miranda violations and prosecutor’s improper closing arguments.” See Form Pet. at 3; Resp’t’s Ex. 6; Dias v. DuBois, slip op. at 9. On June 19, 1980, a single justice of the Supreme Judicial Court stayed the petition until further order of the court or until Dias had exhausted other available remedies. Resp’t’s Ex. 6. 3. Collateral Proceedings a. First Motion for New Trial Haight filed a motion for new trial on Dias’s behalf on July 7, 1980. Id. Ex. 1, at 3. The motion asserted that: (i) a police officer’s testimony about Dias’s custodial statements violated Dias’s Miranda rights; (ii) the prosecutor’s comments on Dias’s silence and absence of protestations of innocence at trial infringed Dias’s Fifth Amendment rights; and (iii) the evidence was insufficient to support finding Dias guilty of second degree murder. Resp’t’s Ex. 7, at 4-6; Am. Ans. at 1-2. On October 21, 1980, Justice Brogna denied the motion for a new trial. Resp’t’s Ex. 7, at 1. With respect to the police testimony, Justice Brogna reasoned that Dias freely volunteered his statements to the police and that the statements were exculpatory. Id. at 5. With respect to the prosecutorial comments at trial, Justice Brogna reasoned that it was fair for the prosecution to point out to the jury that.Dias’s voluntary statements to the police were not full and complete. Id. Justice Brogna did not directly address whether there was sufficient evidence to support the conviction, but he noted that the Supreme Judicial Court had affirmed the conviction upon plenary review. Id. at 6-7. Dias did not appeal the denial of this motion for a new trial. Id. Ex. 1, at 3A. b. Second Motion for New Trial Dias, pro se, filed a second motion for new trial, along with a motion for appointment of counsel, on July 11, 1983. Id.; Dias v. DuBois, slip op. at 10. On September 21, 1983, the Superior Court appointed Armand Fernandes (“Fernandes”) to represent Dias. Resp’t’s Ex. 1, at 4. In his memorandum in support of Dias’s motion for new trial, filed on November 23, 1984, Fernandes raised four issues: (i) the jury charge failed to place the burden of proving malice on the Commonwealth and failed to instruct the jury that malice must be proven beyond a reasonable doubt; (ii) the jury charge failed properly to define, distinguish between, and include all lesser charges included in the greater offense of murder in the first degree; (iii) the justice gave instructions that forced the jury into a premature verdict; and (iv) Dias’s conviction violated the Constitutions of the United States and the Commonwealth of Massachusetts because the Commonwealth failed to comply with the court-ordered psychiatric exam of Dias, or to sustain its burden of showing that Dias was competent to stand trial. Id. Ex. 8, at 3-4. The Commonwealth failed to submit a brief in opposition to the second motion for new trial. Id. Ex. 9, at 3 n. 1. Justice Chris Byron granted the second motion for new trial on March 22, 1985. Id. Ex. 9, at 8. Justice Byron noted that because all of the issues raised by the second motion for new trial could have been, but were not, raised in the first motion for new trial, they were waived under Massachusetts Rule of Criminal Procedure 30, absent permission from a justice to raise them in a subsequent motion. Id. at 3. Although Justice Byron allowed Dias to raise all four issues, he only addressed the last issue because he found it dispositive. Id. at 4. Justice Byron required a new trial preceded by a competency hearing, reasoning that the Commonwealth never proved that Dias was competent to stand trial as required by the Fourteenth Amendment and despite a court order requiring a competency examination before trial. Id. at 6. In response to Dias’s argument that a psychiatric examination “could have revealed” that Dias lacked the criminal intent to commit murder, however, Justice Byron noted that the record did not support a finding that Dias was insane at the time of the murder. Id. at 6-8. Justice Byron concluded that “the court is not persuaded that the failure to complete a psychiatric evaluation that might have revealed an insanity defense is a problem of constitutional magnitude,” and rejected Dias’s argument that reversal of the conviction and dismissal of the indictment were warranted. Id. at 8. On April 17, 1985, Dias filed a claim of appeal and objections to the portion of Justice Byron’s order that refused to dismiss the indictment and to release him from custody. Id. Ex. 1, at 4A; see also id. Ex. 12, at 3. On April 19, 1985, the Commonwealth appealed Justice Byron’s order for a new trial. Id. Ex. 1, at 4A; see also id. Exs. 10-11. On May 10, 1985, the Superior Court ordered a competency examination and released Dias on $40,000 bail with surety of $4,000 cash. Id. Ex. 1, at 4A. On May 14, 1985, a psychiatrist found Dias competent to stand trial. Id. Ex. 11, at 21-22. On its own initiative, the Supreme Judicial Court ordered direct appellate review; affirmed the order declining to dismiss the indictment; reversed the order granting a new trial; and remanded for consideration of the remaining three issues raised in Fernandes’s brief. Commonwealth v. Dias, 402 Mass. 645, 649, 524 N.E.2d 846 (1988), available at Resp’t’s Ex. 13. With respect to Dias’s competency to stand trial, the court held that Justice Byron had erred when he focused on Dias’s competency at the time of arraignment — when the trial court ordered a competency examination' — rather than on the time of trial, more than fifteen months later. Id. at 647, 524 N.E.2d 846. The court noted that neither Dias’s trial counsel, Sullivan, nor the trial justice, ever raised the issue of Dias’s competency to stand trial, and that nothing in the trial transcript supported the inference that Dias was then incompetent to stand trial. Id. On remand, Justice Byron summarily rejected the three remaining issues and endorsed a warrant for Dias’s return to prison on October 25, 1988. Resp’t’s Ex. 1, at 5A. Dias returned to prison in Massachusetts in March 1989. Id. Ex. 15, at 1. Dissatisfied with Fernandes, Dias retained new counsel, Lois Lewis (“Lewis”). On September 3, 1992, Lewis filed a petition requesting a late appeal on Dias’s behalf. Id. Ex. 18. Lewis raised five issues: (i) Dias was denied a speedy trial after his motion for new trial was granted; (ii) the Appeals Court should have dismissed the Commonwealth’s appeal of the order granting a new trial because the Commonwealth failed to pursue the appeal in a timely manner; (iii) Justice Byron should have explained his reasons for dismissing on remand the three jury-instruction issues raised in the second motion for new trial; (iv) Dias was never advised that Justice Byron had denied the remainder of his second motion for new trial; and (v) the trial court gave improper jury instructions. Id. at 5-6. On January 4, 1993, Justice Greaney of the Supreme Judicial Court denied this petition. Id. Ex. 21. On July 20, 1993, through Lewis, Dias filed a motion to clarify whether the appeal had been denied on the merits or for reasons of procedural default. Id. Ex. 22. The Supreme Judicial Court does not appear to have responded to this motion to clarify. Id. Ex. 23. c. Other Court Proceedings Dias, pro se, filed several other motions and civil actions tangentially related to his second motion for new trial. Upon his return to prison, after the Supreme Judicial Court’s reversal of Justice Byron’s order granting a new trial, Dias filed a motion in the Superior Court to correct his sentence to credit him with the time he had spent out on bail. See Dias v. DuBois, slip op. at 14-15; Resp’t’s Exs. 24-26. Not long after, Dias filed a civil action in federal court asserting various civil rights violations including illegal incarceration, cruel and unusual punishment, denial of access to the courts, and denial of access to personal property and mail. See Dias v. DuBois, slip op. at 15. Dias’s claims in both state and federal court were unsuccessful. See id. at 15-16; Dias v. Vose, 960 F.2d 143, 1992 WL 83270 (1st Cir. Mar.3, 1992) (unpublished table decision); Resp’t’s Exs. 15, 17. d. First Federal Habeas Petition Dias, pro se, filed his first federal habe-as corpus petition in the District of Massachusetts in 1993. Judge Woodlock construed the petition as raising the following claims: (i) violation of due process and the right to trial by jury because of erroneous jury instructions; (ii) violation of the privilege against self-incrimination because of police testimony concerning Dias’s • post-arrest statement, failure to hold a pre-trial voluntariness hearing, and prosecutorial commentary on silence; (iii) insufficient evidence to support a finding of second degree murder; (iv) denial of due process through the “dynamite” charge, in which the trial justice encouraged the jurors to return a verdict quickly; (v) denial of due process because of the. Commonwealth’s failure to conduct a court-ordered psychiatric examination prior to trial; (vi) denial of due process because of the Commonwealth’s untimely appeal of the order granting a new trial; (vii) denial of the right to a speedy trial after the order granting a new trial; and (viii) denial of due process because of Dias’s return to custody without an opportunity to be heard. Dias v. DuBois, slip op. at 17-19. In a lengthy and thoughtful opinion, Judge Woodlock suggested that Dias had a strong claim that the instructions of the trial justice had improperly relieved the prosecution of its burden of proving malice aforethought beyond a reasonable doubt, id. at 40-41, but he held that Dias had failed to exhaust all of his state remedies, especially with respect to his claim of ineffective assistance of counsel, id. at 41-42. Accordingly, the district court characterized Dias’s petition as a “mixed” petition that combined exhausted and unexhausted claims and dismissed the petition on February 26, 1996. Id. at 42 (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 [1982]). e. Third Motion for New Trial Dias, pro se, filed a third motion for new trial and an evidentiary hearing in the Superior Court on December 10, 1996. Resp’t’s Ex. 1, at 5A; id. Ex. 28. He raised five issues: (i) ineffective assistance of counsel by Sullivan; (ii) ineffective assistance of counsel by Haight; (iii) ineffective assistance of counsel by Fernandes; (iv) improper jury instructions; and (v) due process violations when he was returned to prison without representation or an opportunity to be heard, either at the time he was returned to prison or later on his late appeal. Id. Ex. 28, at 1-5; see also id. Ex. 29 (brief in opposition); id. Ex. 30 (brief in reply). Justice Philip Rivard-Rapoza granted Dias an oral argument on November 20, 1997, Pet’r’s Ex. 20, but he denied Dias’s third motion for new trial on June 16, 1998, Resp’t’s Ex. 31, at 1. No evidentiary hearing was held because Dias had failed to prove that there were substantial issues that would merit such a hearing. Id. at 7-8. With respect to Sullivan’s effectiveness, Justice Rivard-Rapoza first noted that several issues already had been decided by Justice Brogna on the first motion for new trial, by the Supreme Judicial Court ,on appeal from the second motion for new trial, and by Justice Byron on remand from that court: (i) Sullivan’s failure to call witnesses; (ii) Sullivan’s failure to secure, a competency hearing as ordered by the court; (iii) Sullivan’s failure to raise the issue of Miranda with the trial court; (iv) Sullivan’s waiver of a hearing on the voluntariness of Dias’s statements to the police; and (v) Sullivan’s failure to raise on appeal the jury instructions on manslaughter. Compare id. at 6, with Resp’t’s Ex. 28, at 1-2. Justice Rivard-Rapoza held that only one issue had not been earlier decided: whether Sullivan deprived Dias of the right to testify at his own trial. Id. Ex. 31, at 6. Noting that a defendant’s testimonial privilege is a fundamental right, id. at 10 (citing Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 [1971]), Justice Rivard-Rapoza found that the record was devoid of any evidence supporting Dias’s. argument that he wanted to testify in his own defense but was prevented from doing so, id. With respect to Haight and Fernandes, Justice Rivard-Rapoza held that they were not ineffective. Id. at 11-21. With respect to the jury instructions, Justice Rivard-Rapoza held that the issue had already been decided by the Supreme Judicial Court on direct appeal, by Justice Byron on remand, and by Justice Greaney on the petition requesting a late appeal from the second motion for new trial. Id. at 5-6. With respect to Dias’s return to prison, Justice Rivard-Rapoza held that because Dias was simply being ordered to serve a sentence that had been imposed previously, due process did not require that he be represented or heard. Id. at 21. As for Justice Grea-ney’s denial of Dias’s late appeal, Justice Rivard-Rapoza held that Justice Greaney merely applied a valid rule of state appellate procedure. Id. at 22 (citing Mass.R.App.P. 14[B]). Dias, pro se, appealed the denial of his third motion for new trial to the Appeals Court around July 1998. Id. Ex. 1, at 6; see also id. Ex. 32 (brief on appeal filed Aug. 17, 1998); id. Ex. 33 (brief in opposition filed Nov. 1998); id. Ex. 34 (brief in reply filed Dec. 30, 1998). The Appeals Court denied Dias’s appeal on October 28, 1999. Commonwealth v. Dias, No. 98-P-1275, slip op. (Mass.App.Ct. Oct. 28, 1999), available at Resp’t’s Ex. 35 [hereinafter Dias III]; see also Commonwealth v. Dias, 48 Mass.App.Ct. 1105, 718 N.E.2d 896 (1999) (unpublished table decision). With respect to the issue of an evidentiary hearing, the Appeals Court deferred to the •sound discretion of the Superior Court. Dias III, slip op. at 3 n. 3. With respect to Sullivan’s effectiveness, the Appeals Court reviewed each of the issues Dias raised in his motion, including the issues that the Superior Court did not address. The Appeals Court refused to hold that Sullivan’s failure to call certain witnesses constituted ineffective assistance of counsel because Dias provided no evidence as to what those witnesses would have said. Id. at 6-7, 367 N.E.2d 623. With respect to Sullivan’s alleged refusal to let Dias testify in his own defense, the Appeals Court held that the Superior Court did not abuse its discretion when it found that Dias failed to support his contention with any evidence. Id. at 7, 367 N.E.2d 623. With respect to Sullivan’s failure to object to the prosecutor’s closing argument, the Appeals Court ruled that the prosecutor had not said anything objectionable and that failure to object could not have resulted in a substantial risk of miscarriage of justice. Id. at 8, 367 N.E.2d 623. With respect to Sullivan’s failure to raise the issue of Miranda, the Appeals Court noted that Justice Brogna, in deciding the first motion for new trial, had ruled that there had been no Miranda violation and that Dias never appealed this decision. Id. at 15-16, 490 N.E.2d 1195. With respect to Haight and Fernandes, the Appeals Court held that they were not ineffective. Id. at 8-11, 490 N.E.2d 1195. With respect to the jury instructions, the Appeals Court noted that the Superior Court improperly considered the issue because the Supreme Judicial Court had earlier addressed the issue on direct appeal, Justice Greaney had considered the issue on the petition for a late appeal from the second motion for new trial, and Dias failed to appeal Justice Greaney’s decision. Id. at 10-12, 490 N.E.2d 1195. The Appeals Court did, however, examine the jury instructions to see if they created a substantial risk of a miscarriage of justice, but it concluded that they did not. Id. at 12-15, 490 N.E.2d 1195. With respect to Dias’s return to prison, the Appeals Court agreed with the Superior Court that because Dias was simply being ordered to serve a sentence that previously had been imposed, due process did not require him to be represented or heard. Id. at 16-17, 490 N.E.2d 1195. Dias applied for further appellate review on November 17, 1999. Id. Ex. 36. The Supreme Judicial Court denied his application on January 7, 2000. Id. Ex. 37. II. PROCEDURAL POSTURE On April 24, 2000, Dias petitioned this Court for a writ of habeas corpus, which permits relief to persons in custody, pursuant to the judgment of a state court, in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). A. Applicability of Amendments to Section 2254 The parties have not specifically addressed whether the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. No. 104-132, §§ 101-107, 110 Stat. 1214, 1217-26 (reforming habeas corpus statute), applies to the merits of this case. The Supreme Court has held that AEDPA is not retroactive and that it only applies to cases filed after its effective date of April 24, 1996, Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Dias’s first petition to the District of Massachusetts was filed before AEDPA went into effect, but his petition was dismissed without prejudice for failure to exhaust state remedies. Dias v. DuBois, slip op. at 41-43. Dias pursued his state remedies and then filed the current petition after AEDPA went into effect. Thus, the Supreme Court has not explicitly addressed the question presented in this case: Does AEDPA apply to the second of two related habeas petitions whose filing dates straddle the effective date of AED-PA? This Court holds that the current habe-as statute, as amended by AEDPA, governs the instant petition, even though Dias’s original petition was filed in the pre-AEDPA era. Although the First Circuit has not addressed this precise question with respect to petitions filed under section 2254, its discussion of an analogous situation under section 2255 is indistinguishable from the facts of this case. See Pratt v. United States, 129 F.3d 54, 58-60 (1st Cir.1997) (applying AEDPA to the second of two petitions under section 2255 that straddled AEDPA’s effective date), cited with approval in Libby v. Magnusson, 177 F.3d 43, 46-47 (1st Cir.1999) (holding that petitioner did not objectively rely to his detriment when he did not file his second petition under section 2255 before AEDPA’s effective date). Other courts have explicitly held, as this Court does now, that a federal habeas corpus petition filed after the effective date of AEDPA is governed by AEDPA even though the petitioner’s previous federal petition was filed before the effective date of AEDPA and was dismissed without prejudice for failure to exhaust state remedies. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir.2001); Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir.2000), cert. dismissed, — U.S. -, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.1999) (citing, inter alia, Pratt, 129 F.3d at 58). B. Procedural Bars Under Section 2254 Dias’s petition is not barred by any of the new procedural hurdles that Congress erected in AEDPA. The petition is not “second or successive,” 28 U.S.C. § 2244(b)(1), because the earlier petition was dismissed for failure to exhaust state remedies, Sustache-Rivera v. United States, 221 F.3d 8, 12-13 (1st Cir.2000) (citing Slack v. McDaniel, 529 U.S. 473, 485-89, 120 S.Ct. 1595, 146 L.Ed.2d 542 [2000] [construing pre-AEDPA law]), cert. denied, — U.S. —, 121 S.Ct. 1364, 149 L.Ed.2d 292 (2001), nor is it untimely, 28 U.S.C. § 2244(d)(1), construed in Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.1999) (creating one-year grace period, from date AEDPA went into effect, in which to file section 2254 petitions based on convictions made final before AEDPA went into effect) because, excluding the time that Dias spent pursuing his third motion for new trial, less than one year has elapsed since AEDPA went into effect, id. § 2244(d)(2), construed in Gaskins, 183 F.3d at 9-10 (allowing grace period to be tolled). Furthermore, although this Court may not grant Dias’s petition if Dias failed to exhaust the remedies available to him in state court over the past twenty-five years, id. § 2254(b)(1)(A), this Court may deny Dias’s petition on the merits even if he failed to exhaust his state remedies, id. § 2254(b)(2). C. Standard of Review Under § 2254 1. Claims Adjudicated on the Merits in a State Court Section 2254 provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The Supreme Court interpreted the meaning of section 2254(d)(1) in Terry Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (5-4 decision). See Johnson v. Norton, 249 F.3d 20, 25-29 (1st Cir.2001) (applying Terry Williams to petition challenging competence to stand trial); Hurtado v. Tucker, 245 F.3d 7 (1st Cir.2001) (sufficiency of the evidence); Phoenix v. Matesanz, 233 F.3d 77 (1st Cir.2000) (ineffective assistance of counsel); Williams v. Matesanz, 230 F.3d 421 (1st Cir.2000) (jury instructions); O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.1998) (anticipating rule set forth in Terry Williams); Kibbe v. DuBois, 120 F.Supp.2d 114, 118-21 (D.Mass.2000) (Gertner, J.) (granting habeas petition under Terry Williams standard and questioning O’Brien standard). The Supreme Court clarified that “clearly established Federal law, as determined by the Supreme Court of the United States” refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state-court decision. Terry Williams, 529 U.S. at 412, 120 S.Ct. 1495. The Supreme Court also gave independent meaning to the phrases “contrary to” and “unreasonable application of’ found in section 2254(d)(1). A state court decision would be “contrary to” clearly established federal law, as determined by a holding of the Supreme Court, if (i) the state court applied a rule that contradicted the governing law set forth in the Supreme Court’s cases or (ii) the state court confronted a set of facts that was materially indistinguishable from a decision of the Supreme Court and yet arrived at a result different from the Supreme Court’s precedent. Id. at 405-06, 120 S.Ct. 1495. In contrast, a state court decision applying the correct legal rule set forth in the Supreme Court’s cases would not be “contrary to” clearly established federal law. Id. at 406, 120 S.Ct. 1495. A state court decision would involve an “unreasonable application of’ clearly established federal law, as determined by a holding of the Supreme Court, if the state court identified the correct governing legal principle from the Supreme Court’s decisions but unreasonably applied that principle to the facts of the prisoner’s case. Id. at 413, 120 S.Ct. 1495. An unreasonable application of federal law js different from an incorrect application of federal law. Id. at 410, 120 S.Ct. 1495. The test is not whether reasonable jurists would all agree that the state court’s application of federal law was unreasonable, id. at 409-10, 120 S.Ct. 1495, because that would be too subjective; rather, the inquiry should be whether the state court’s application of federal law was objectively unreasonable, id. at 410, 120 S.Ct. 1495. The meaning of section 2254(d)(2) necessarily turns on section 2254(e)(1), which presumes that factual determinations by a state court are correct. In other words, a petition for habeas corpus cannot be granted on the basis of section 2254(d)(2) unless the federal court first holds that the state court’s factual determinations were incorrect pursuant to section 2254(e)(1), as discussed below. 2. Facts Determined by a State Court Section 2254 provides: (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on — ■ (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ü) a factual predicate that could not have been previously discovered through the t exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear.' and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e). The First Circuit interpreted the meaning of section 2254(e)(1) in Coombs v. Maine, 202 F.3d 14 (1st Cir.2000). For purposes of section 2254(e)(1), “ ‘factual issues’ are defined as ‘basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators.’ ” Id. at 18 (quoting, inter alia, Townsend v. Sain, 372 U.S. 293, 309 n. 6 , 83 S.Ct. 745, 9 L.Ed.2d 770 [1963], overruled in part on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 [1992]); accord Thompson v. Keohane, 516 U.S. 99, 109-10, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). The Supreme Court interpreted the meaning of section 2254(e)(2) in Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (9-0 decision). See Fryar v. Bissonnette, 113 F.Supp.2d 175, 178 (D.Mass.2000) (Ponsor, J.). The Supreme Court held that a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel. Michael Williams, 529 U.S. at 432, 120 S.Ct. 1479. In other words, “failed to develop” means more than “did not develop.” The purpose of the fault component of “failed” is to ensure that the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information