Kilburn v. Maloney

MEMORANDUM AND ORDER ON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

STEARNS, District Judge.

I have reviewed Magistrate Judge Dein’s Report and Recommendation, the petitioner’s lengthy objections and supporting materials, and the underlying decisions of the Supreme Judicial Court (SJC) in Commonwealth v. Kilburn (I), 426 Mass. 31, 686 N.E.2d 961 (1997), and Commonwealth v. Kilburn (II), 438 Mass. 356, 780 N.E.2d 1237 (2003). The most significant issue is whether the SJC’s determination that the trial judge’s error in failing to distinguish between two coterminous assaults, one of which could…