Kirwan v. Spencer

United States Court of Appeals
For the First Circuit

No. 09-2438

SCOTT D. KIRWAN,

Petitioner, Appellant,

v.

LUIS SPENCER, SUPERINTENDENT,

Respondent, Appellee.

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

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Smith,* District Judge.

Stephen Paul Maidman, for appellant.
Argie K. Shapiro, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for
appellee.

January 28, 2011

*
Of the District of Rhode Island, sitting by designation.
 TORRUELLA, Circuit Judge. After a jury trial in the

Massachusetts Superior Court, Scott D. Kirwan was convicted of

first-degree murder and sentenced to life in prison for killing

Steven Meagher. Kirwan appealed, and the Massachusetts Supreme

Judicial Court ("SJC") affirmed his conviction. See Commonwealth

v. Kirwan, 860 N.E.2d 931, 943 (Mass. 2007).

Kirwan filed a petition for a writ of habeas corpus in

the federal district court, which the court denied, adopting

without further explanation the magistrate judge's report and

recommendation. See Kirwan v. Spencer, No. 08-10651, slip op. at

68 (D. Mass. Aug. 25, 2009). Kirwan then applied for a certificate

of appealability ("COA") as to the denial of the writ. The

district court granted the COA as to two of the grounds in Kirwan's

petition. Thus, the following issues are on appeal: (1) whether

certain remarks by the prosecutor during closing argument deprived

Kirwan of his rights to a fair trial and due process, and (2)

whether trial counsel's failure to object to, and seek curative

instructions following, the prosecutor's allegedly improper remarks

deprived Kirwan of his right to effective assistance of counsel.

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 I. Background

A. The Night of Meagher's Death1

On July 2, 1999, at approximately 11:00 p.m., Kirwan and

his friend Brian Perry walked from the apartment building in which

they both lived to a crowded bar across the street. There, Kirwan

had several brief encounters with Meagher. The first, essentially

a continuation of an earlier argument, ended when Perry told Kirwan

and Meagher to "grow up" and "shake hands." During the second, an

angry Kirwan told Meagher that they could "take it outside," but

Meagher walked away. Between the second and third encounters,

Kirwan left the bar for approximately fifteen minutes, ostensibly

to record a pay-per-view movie that was scheduled to be televised

at midnight. Before Kirwan left the bar to record the movie, he

spoke with Perry. As discussed below, Kirwan mentioned "something

about a shank" to Perry. When Kirwan returned, Meagher was still

at the bar. During their third encounter, Meagher approached

Kirwan and they argued. Shortly thereafter, Kirwan told Perry that

he was worried about Meagher and another man, Leo Purcell, who was

with Meagher. As Meagher left the bar, he and Kirwan again

1
We present most of the facts as the SJC summarized them in
Kirwan, 860 N.E.2d at 934-36. See 28 U.S.C. § 2254(e)(1) (state
court factual determinations presumed to be correct in federal
habeas proceedings); see also Evans v. Thompson, 518 F.3d 1, 3 (1st
Cir. 2008). Where, however, the parties dispute whether a certain
determination is subject to section 2254(e)(1)'s presumption of
correctness, we have omitted the details of the SJC's findings and
instead present the relevant jury testimony in the following
section.

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exchanged words. Kirwan then mentioned to Perry that he was

worried that he was going to have to fight Meagher and Purcell.

Approximately ten minutes later, Meagher came back into the bar and

argued briefly with Kirwan.

At approximately 1:00 a.m., Kirwan and Perry left the

bar. Outside, Meagher drove his truck alongside Kirwan, argued

with him, and then parked his truck. Kirwan and Meagher approached

each other in the street. Kirwan punched Meagher three times. The

third time, he struck the front of Meagher's chest and had a shiny,

metallic object in his hand. Kirwan then yelled that he was going

to get a gun and walked toward his home, approximately fifty feet

away. Meagher walked approximately thirty feet back toward his

truck before falling flat on his face. Police and an ambulance

arrived and Meagher was brought to a hospital, where he died. The

cause of death was blood loss caused by a knife wound in his chest.

A search of the scene later yielded a small knife with blood on it.

The DNA of the blood on the knife matched Meagher's DNA.

B. The Jury Trial

At trial, the prosecutor solicited testimony from Perry

regarding the statements that Kirwan made before leaving the bar,

ostensibly to record the pay-per-view movie. Perry and the

prosecutor had the following colloquy:

Q. Before [the defendant] left, Mr. Perry,
did he make a statement to you about getting
some type of weapon?

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A. He really didn't say it was a weapon. He
said something about a shank.

Q. Tell us exactly what he said, would you?

A. I couldn't exactly tell you what he said.
He just said something about a shank. He was
worried about the two guys [sitting with his
former girlfriend] on the other side, and he
was worried about wanting to pick up a shank
or something like that.

Q. So, he said he was going home?

A. He was going home for the taping, yes.

Q. Said he was going to get a shank?

A. He just said something about a shank.

Q. How many times did he say it to you?

A. I remember twice.

Q. Did he say it differently the second time?

A. No.

Q. What did he say the second time, exactly,
if you recall?

A. Like I said, I had a lot to drink that
night, and I would say he just mentioned
something about a shank. I didn't even know
what it was.

Q. Never seen a prison movie?

[Defense Counsel]: Objection.

The Court: Yes, sustained.

Q. After he said this about the shank, did
you see him leave?

A. He left before 12:00, yes.

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 In his closing argument, the prosecutor relied in large

part upon Perry's testimony to establish premeditation. The

prosecutor stated a number of times, using various terms, that

Kirwan went home to get a weapon.2 In addition, his closing

argument included a quotation of a statement that Kirwan supposedly

made to Perry about the shank:

It is the most critical piece of evidence,
ladies and gentlemen, that statement to Brian
Perry, "I'm going to go get my shank," not
once, not twice, then going home and arming
himself, because that shows beyond any
reasonable doubt what his intentions were.

Brian Perry can tell you all he wanted
he didn't understand what that was about.
Again, draw on your collective experience and
common sense. I'm going to get my shank, but
it gets better than that, because if you look

2
First, the prosecutor said the following:

He didn't like that fear in his belly, so he went home
and he got his shank, and when you go into that
deliberation room, think long and hard about what that
tells you.
What's that tell you about Scott Kirwan's intent,
that he went home and got this knife and put it in his
pocket and walked back to that barroom? Think long and
hard about . . . what that says about the deliberate
premeditation of this murder. He went home and armed
himself.
He went home and armed himself. . . .

(Emphasis added.) Later, the prosecutor said, "I suggest to you
the evidence is clear that, when the defendant went back to his
house into his room or into the kitchen, took this knife out, put
it in his shorts and went back over to that barroom, that was
deliberate premeditation." (Emphasis added.) Finally, the
prosecutor said, "He was pumped up, he was looking for a fight, and
he went and got his shank." (Emphasis added.)

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 at the evidence on the whole, he comes back,
which he didn't have to do.

(Emphasis added.)

C. The SJC Opinion

On appeal to the SJC, Kirwan raised two arguments that

are relevant here. First, he argued that the prosecutor had

committed prosecutorial misconduct by arguing a critical fact not

in evidence during his closing statement. Second, Kirwan asserted

a related claim of ineffective assistance of counsel on the grounds

that his lawyer failed to object to the relevant portions of the

closing statement and failed to seek curative instructions.

Kirwan's first argument had two components. He claimed that (1) it

was improper to ask the jury to conclude that Kirwan said he went

home to arm himself, and that he in fact did so, because these

conclusions were not grounded in the evidence, and (2) even if it

was proper to argue that the jury could draw these inferences, it

was improper for the prosecutor to argue that Perry explicitly

testified that Kirwan said "I'm going to go get my shank."

The SJC dismissed both arguments. First, apparently

addressing the first component of the prosecutorial misconduct

argument, it explained that "[c]ontrary to [Kirwan's] assertion,

the prosecutor's argument that [Kirwan] said he was going home to

get a 'shank' was supported by the evidence." Kirwan, 860 N.E.2d

at 941. According to the SJC, Perry's testimony about his

conversation with Kirwan shortly before Kirwan left the bar

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"permitted an inference that [Kirwan] expressed an intention to go

home, in part, to get a shank." Id. at 942. In handling the

second component of this argument, the SJC said the following: "In

his decision on the defendant's motion for a new trial, the judge

observed that, even if the prosecutor had misquoted Perry as to

what the defendant had said, 'the statement attributed to the

defendant was fairly inferable from the evidence.' The argument

was not improper." Id. The SJC then "add[ed] that the jury were

instructed that it was their memory of the testimony that was

controlling, not that of the attorneys or even the judge." Id.

Having resolved the prosecutorial misconduct issue, the SJC simply

noted, "Because there was no misconduct on the part of the

prosecutor, there was no ineffective assistance of counsel for

failure to object." Id.

II. Discussion

Kirwan first argues that the prosecutor deprived him of

his rights to a fair trial and due process by arguing in summation

that Kirwan said he was going home to get a shank, and that he

indeed went home to retrieve a shank, before killing Meagher.

Kirwan contends that the prosecutor should not have encouraged the

jury to draw these inferences because they were not grounded in the

evidence; he also contends that it was improper for the prosecutor

to misquote Perry as saying that Kirwan had told him "I'm going to

go get my shank." Second, Kirwan argues that his right to

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effective assistance of counsel was violated because his counsel

failed to object and seek curative instructions when the prosecutor

mentioned the shank during closing argument. We address each claim

in turn after discussing the statutory framework for habeas review.

A. The Statutory Framework

Under the Anti-Terrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), a federal court may not grant habeas relief

"with respect to any claim that was adjudicated on the merits in

[s]tate court . . . unless the adjudication of the claim" resulted

in a decision that either (1) "was contrary to, or involved an

unreasonable application of, clearly established [f]ederal law, as

determined by the Supreme Court of the United States" or (2) "was

based on an unreasonable determination of the facts in light of the

evidence presented." 28 U.S.C. § 2254(d). If the relevant claim

has not been adjudicated on the merits in state court, we review

that claim de novo. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.

2010). In addition, AEDPA provides that in federal habeas cases,

"a determination of a factual issue made by a [s]tate court shall

be presumed to be correct" and "[t]he applicant shall have the

burden of rebutting the presumption of correctness by clear and

convincing evidence." 28 U.S.C. § 2254(e)(1). The parties disagree

about whether any of the SJC's conclusions are entitled to the

presumption of correctness under § 2254(e)(1) and also about the

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applicability of 28 U.S.C. § 2254(d) here. We address those issues

below.

B. Denial of the Right to a Fair Trial

1. Standard of Review

We review the district court's denial of habeas corpus

relief de novo. Clements, 592 F.3d at 51. "We may affirm . . . on

any basis apparent in the record." Chiang v. Verizon New England,

Inc., 595 F.3d 26, 34 (1st Cir. 2010).

The parties dispute the applicability of two sections of

AEDPA to Kirwan's prosecutorial misconduct claim. The government

contends that this court should treat as presumptively correct,

under 28 U.S.C. § 2254(e)(1), the SJC's conclusion that the

inference that Kirwan said he was going home to get a shank was

supported by the record. Kirwan, on the other hand, argues that

the presumption of correctness under section 2254(e)(1) does not

apply to that conclusion. We determine below that the SJC

correctly concluded that the evidence at trial permitted the

inference that Kirwan said he returned home to get a shank. Thus,

we need not decide whether that conclusion is entitled to the

presumption of correctness under section 2254(e)(1). See Forsyth

v. Spencer, 595 F.3d 81, 84 n.3 (1st Cir. 2010) (declining to

determine whether section 2254(e)(1) presumption of correctness

applies where petitioner could not prevail even under a standard

arguably more favorable to him).

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 In addition, the parties dispute whether the SJC's

determination that there was no prosecutorial misconduct is

entitled to deference under section 2254(d)(1), and whether any

related factual determinations are entitled to deference under

section 2254(d)(2), assuming they are not entitled to deference

under section 2254(e)(1). Section 2254(d) applies to claims that

have been "adjudicated on the merits in [s]tate court." 28 U.S.C.

2254(d). "Deference to the state court's determination is

warranted . . . if the court either expressly resolved the federal

claim on its merits or adjudicated it under a state law standard

that 'is at least as protective of the defendant's rights as its

federal counterpart.'" Young v. Murphy, 615 F.3d 59, 64-65 (1st

Cir. 2010) (quoting Foxworth v. St. Amand, 570 F.3d 414, 426 (1st

Cir. 2009), cert. denied, 130 S. Ct. 1710 (2010)). The government

argues that the SJC applied a state standard that is the functional

equivalent of the federal standard when it relied on Commonwealth

v. Duguay, 720 N.E.2d 458 (Mass. 1999), in resolving the

prosecutorial misconduct issue. Thus, the government claims, the

SJC's decision is entitled to deferential review under section

2254(d)(1), and any factual determinations that are not entitled to

the presumption of correctness under section 2254(e)(1) are

entitled to deferential review under section 2254(d)(2). Kirwan

contends that the standard set out in Duguay is not as protective

of his rights as the standard in Darden v. Wainright, 477 U.S. 168,

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180 (1986), and Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974), and therefore he is entitled to de novo review. Because

Kirwan cannot prevail even under the de novo standard, we assume

without deciding that section 2254(d) is inapplicable here. See

Obershaw v. Lanman, 453 F.3d 56, 66 (1st Cir. 2006) (declining to

decide whether deferential AEDPA standard of review applies because

petitioner would lose even under de novo standard).

2. Analysis

We first address Kirwan's contention that the

prosecutor's argument that Kirwan said he was going home to get a

shank and then went home to retrieve the shank was improper because

it was not supported by the evidence. "The relevant question is

whether the [prosecutor's] comments 'so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.'" Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at

643). We conclude that both the inference that Kirwan returned

home to retrieve a knife and the inference that he stated his

intention to Perry were grounded in the evidence, and thus that the

comments urging the jury to accept these inferences did not "so

infect[] the trial with unfairness," Donnelly, 416 U.S. at 643, as

to constitute a due process violation.

Kirwan correctly points out that at one point, when the

prosecutor asked Perry if Kirwan had "[s]aid he was going to get a

shank," Kirwan replied, "He just said something about a shank."

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This testimony, in isolation, might suggest that Kirwan did not

tell Perry that he was going home to get a shank and did not, in

fact, retrieve a shank at home. Viewed, however, in light of the

surrounding testimony, this statement does not negate the inference

that Kirwan went home to get a shank. Prior to this statement,

Perry testified as follows in response to a question from the

prosecutor:

Q. Before [the defendant] left, Mr. Perry,
did he make a statement to you about getting
some type of weapon?

A. He really didn't say it was a weapon. He
said something about a shank.

In his initial answer, Perry did not deny that Kirwan said he was

going home to get something; he simply clarified that Perry did not

refer to a weapon, but rather used the word "shank." The direct

examination continued as follows:

Q. Tell us exactly what he said, would you?

A. I couldn't exactly tell you what he said.
He just said something about a shank. He was
worried about the two guys [sitting with his
former girlfriend] on the other side, and he
was worried about wanting to pick up a shank
or something like that.

Here, Perry's answer again suggests that Kirwan was going someplace

to pick up a shank.

Furthermore, the evidence at trial showed that (1) after

making these statements, Kirwan went home; (2) Kirwan later

returned to the bar; (3) during his fight with Meagher, he had a

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shiny metallic object in his hand; (4) Meagher died of blood loss

from a knife wound; and (5) a knife with blood matching the DNA of

Meagher's blood was found at the scene. Given all of this

evidence, it was proper for the prosecutor to argue in closing that

Kirwan told Perry he was going home to retrieve a shank and then

did so. Therefore, this argument did not violate Kirwan's

constitutional rights.

We next address Kirwan's contention that the prosecutor

violated his constitutional rights when he argued that Kirwan twice

told Perry "I'm going to go get my shank." Perry never testified

that Kirwan said "I'm going to go get my shank." Assuming that the

prosecutor's statement was improper, the statement still did not

result in a constitutional violation.

Where, as here, the allegedly objectionable statements do

not implicate a specific right in the Bill of Rights, "[t]he

relevant question is whether the [prosecutor's] comments 'so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.'" Darden, 477 U.S. at 181

(quoting Donnelly, 416 U.S. at 643). "There is no precise federal

standard governing due process claims based on a prosecutor's

remarks." Dagley v. Russo, 540 F.3d 8, 15 n.3 (1st Cir. 2008).

Darden and Donnelly, however, provide the relevant Supreme Court

law. In Darden, one prosecutor stated in summation, among other

things, that the defendant should only be let out of his prison

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cell with a leash on, that he wished the victim had blown the

defendant's face off, and that he wished the defendant had used his

final bullet on himself. 477 U.S. at 181 n.12. In considering

whether the closing argument violated the petitioner's right to due

process, the Court noted that (1) the summation "did not manipulate

or misstate the evidence," (2) the judge "instructed the jurors

several times that their decision was to be made on the basis of

the evidence alone, and that the arguments of counsel were not

evidence," and (3) "[t]he weight of the evidence against petitioner

was heavy." Id. at 182. The Court reasoned that this last factor

was important because the "'overwhelming eyewitness and

circumstantial evidence to support a finding of guilt on all

charges' reduced the likelihood that the jury's decision was

influenced by argument." Id. (quoting Darden v. State, 329 So. 2d

287, 291 (Fla. 1976)).

In Donnelly, the prosecutor commented that although the

defendant and his counsel asked the jury to find the defendant not

guilty, "I quite frankly think that they hope that you find him

guilty of something a little less than first-degree murder." 416

U.S. at 640 (internal quotation marks omitted). The Court

concluded that this comment did not deprive Donnelly of the right

to a fair trial because (1) it was unclear that the jury would have

concluded, as the Court of Appeals supposed it would, that Donnelly

must have wanted to plead guilty to a lesser offense but had been

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unable to do so, and (2) the judge instructed the jury generally

that closing arguments were not evidence and specifically told them

that the prosecutor's remark was not supported by evidence and thus

should be disregarded. Id. at 644.

Kirwan's strongest argument is that the prosecutor

"manipulate[d] or misstate[d] the evidence," Darden, 477 U.S. at

182, when he stated that the "most critical piece of evidence" at

trial was Kirwan's "statement to Brian Perry, 'I'm going to go get

my shank.'" According to Kirwan, had the prosecutor not misquoted

Perry, the issue of whether Kirwan's acts were premeditated would

have been a much closer call for the jury. We conclude, however,

that this comment was so minor a misstatement that it could not

have "so infected the trial with unfairness as to make the

resulting conviction a denial of due process," Donnelly, 416 U.S.

at 643, especially given the context of the entire trial. First,

as in Darden, there was ample evidence to support a conviction for

first-degree murder, so it is very unlikely that the comment

influenced the jury's verdict. Perry's testimony that Kirwan "said

something about a shank" before leaving the bar, and that Kirwan

was "worried about wanting to pick up a shank or something like

that," combined with the evidence that Kirwan, when he attacked

Meagher after returning to the bar, had a shiny metallic object in

his hand, and that Meagher died of blood loss from a knife wound,

could easily convince the jury that Kirwan returned home to get the

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murder weapon. Second, although the trial judge did not

specifically address the comments, he did instruct the jury that

(1) they should decide "what the facts are solely from the evidence

admitted," (2) closing arguments were "not a substitute for the

evidence," and (3) they should "follow [their] own recollection" of

the evidence. Given how minor the misstatement was, that the

evidence was overwhelmingly against Kirwan, and that the judge did

instruct the jury that their recollection of the evidence was

controlling, we conclude that the prosecutor's comments did not

result in a fundamentally unfair trial.

C. Ineffective Assistance of Counsel

Kirwan claims that because his attorney (1) failed to

object to the prosecutor's statements regarding Kirwan returning

home to get the shank and (2) failed to seek curative instructions

following the summation, he was denied effective assistance of

counsel. Each of these sub-claims applies to both (a) the

prosecutor's general statements about Kirwan going home to get a

shank, and (b) his misquotation of Perry as saying that Kirwan said

"I'm going to go get my shank."

1. Standard of Review

The parties appear to agree that the issue of whether

Kirwan's counsel provided ineffective assistance by failing to

object to the prosecutor's statements should be reviewed under the

deferential 28 U.S.C. § 2254(d)(1) standard. This is the correct

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standard to apply to the claim that counsel's failure to object to

the prosecutor's general statements regarding the shank constituted

ineffective assistance of counsel.3 As for the failure to object

to the misquotation, however, because we have assumed that the

prosecutor's misquotation was improper, it would not make sense to

give deference to the final conclusion that because there was no

improper statement, there was no ineffective assistance. Cf.

Wiggins v. Smith, 539 U.S. 510, 534 (2003) (noting that the Court's

review was "not circumscribed by a state court conclusion with

respect to prejudice as neither of the state courts below reached

this prong of the Strickland analysis"). Thus, we apply the de

novo standard to this part of Kirwan's failure-to-object sub-claim.

Kirwan contends that his second sub-claim, regarding

failure to seek curative instructions, should be reviewed de novo

3
In ruling on the ineffective assistance of counsel issue in
Kirwan's case, the SJC cited Commonwealth v. Wright, 584 N.E.2d 621
(Mass. 1992). See Kirwan, 860 N.E.2d at 941. In Wright, the court
applied the Mass. Gen. Laws ch. 278, § 33E standard to an
ineffective assistance of counsel claim after explaining that the
statutory standard -- which requires proof that (1) "there was an
error in the course of the trial (by defense counsel, the
prosecutor, or the judge)" and (2) the "error was likely to have
influenced the jury's conclusion" -- is more favorable to the
defendant than the constitutional standard articulated in
Strickland v. Washington, 466 U.S. 668 (1984). Wright, 584 N.E.2d
at 624. Thus, the SJC appears to have reasoned that because the
prosecutor committed no error, there was no violation of § 33E, and
thus there was no constitutional ineffective assistance of counsel.
Because the standard that the SJC employed is "at least as
protective of the defendant's rights as its federal counterpart,"
we may defer under section 2254(d)(1) to its determination.
Foxworth, 570 F.3d at 426.

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because the SJC did not address or even mention it. Because Kirwan

cannot prevail regardless of the standard of review, we apply the

de novo standard to his claim regarding curative instructions.4

See Obershaw, 453 F.3d at 66.

We have laid out the appropriate standards of review by

addressing (1) Kirwan's failure-to-object argument in relation to

(a) the prosecutor's general comments and (b) the prosecutor's

misquotation, and then discussing (2) Kirwan's argument regarding

curative instructions. Below, however, we analyze the substance of

Kirwan's claims by first addressing (a) the prosecutor's general

comments -- discussing both (1) the failure to object and (2) the

failure to seek curative instructions -- and then turning our

attention to (b) the prosecutor's misquotation.

2. Analysis

For the reasons discussed above, we have concluded that

the prosecutor's general statements about Kirwan going home to get

his shank were fairly inferable from the evidence. Therefore, the

SJC did not unreasonably apply clearly established federal law5 in

4
We do not mean to suggest here that Kirwan could prevail under
the de novo standard of review on his claim that his attorney was
ineffective in failing to object to the prosecutor's general
comments regarding the shank. Because the prosecutor's comments
were fairly inferable from the evidence, as discussed above, his
attorney need not have objected to them. Thus, Kirwan would lose
even under the de novo standard of review.
5
Kirwan does not contend that the SJC's decision was "contrary
to" clearly established federal law.

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concluding that the attorney's failure to object to these general

comments did not violate Kirwan's constitutional rights.

Furthermore, reviewing de novo Kirwan's claim that he was denied

effective assistance of counsel when his attorney failed to seek

curative instructions in response to these general comments, we

conclude that his constitutional rights were not violated for the

same reason; there was no need to seek curative instructions

because the general comments were fairly inferable from the

evidence.

The prosecutor's statement misquoting Perry requires

slightly more analysis. In order to make out a claim of ineffective

assistance of counsel, a petitioner must show (1) "that counsel's

performance was deficient," which "requires showing that counsel

made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment," and (2)

"that the deficient performance prejudiced the defense," which

"requires showing that counsel's errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). In

order to meet the prejudice prong, a petitioner "must show that

there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different." Id. at 694. "A reasonable probability is one

'sufficient to undermine confidence in the outcome.'" González-

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Soberal v. United States, 244 F.3d 273, 278 (1st Cir. 2001)

(quoting Strickland, 466 U.S. at 694).

Even assuming that Kirwan can meet the performance prong,

he cannot meet the prejudice prong. Given that the other evidence

against him was overwhelming, as discussed above, Kirwan cannot

demonstrate that there is a "reasonable probability" that the

result of his trial would have been different if his attorney had

objected to, or sought curative instructions regarding, the

prosecutor's statements. Strickland, 466 U.S. at 694. The jury

still almost certainly would have convicted him of first-degree

murder given the evidence suggesting that he went home to get a

shank, returned to the bar, and then killed Meagher using the

shank. Therefore, neither the failure to object nor the failure to

seek curative instructions constituted ineffective assistance of

counsel, and -- even reviewing the claims de novo -- we conclude

that there was no constitutional violation here.

III. Conclusion

For the reasons stated, we affirm the district court's

order.

Affirmed.

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