March 8, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2105
THOMAS A. MAGEE,
Petitioner, Appellant,
v.
SCOTT HARSHBARGER, ET AL.,
Respondents, Appellees.
ERRATA SHEET
The opinion of this COurt issued on February 24, 1994 is
amended as follows:
On cover sheet under list of counsel "Elizabeth J. Medvedow"
should be corrected to read "Elisabeth J. Medvedow."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2105
THOMAS A. MAGEE,
Petitioner, Appellant,
v.
SCOTT HARSHBARGER, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Judge,
and Selya, Circuit Judge.
Brownlow M. Speer with whom Committee for Public Counsel
Services was on brief for appellant.
Elisabeth J. Medvedow, Assistant Attorney General, with whom
Scott Harshbarger, Attorney General, was on brief for appellees.
February 24, 1994
BOWNES, Senior Circuit Judge. Petitioner Thomas A.
BOWNES, Senior Circuit Judge.
Magee appeals the district court's denial of his petition for
a writ of habeas corpus. The district court ruled that
petitioner failed to satisfy the "cause" and "prejudice"
requirement which must be met before federal courts can
collaterally review the merits of procedurally defaulted
constitutional claims. Because petitioner has failed to show
"cause" for his procedural default, we affirm.
I.
BACKGROUND
We recite the facts pertinent to the issues raised
on this appeal.1 Petitioner was tried in a Massachusetts
state court, along with his co-defendant Patrick Tracy, on
charges of armed robbery, carrying a firearm, and receipt of
stolen property. The jury found petitioner guilty of the
first two offenses but acquitted him of the third.2
During the trial the Commonwealth offered into
evidence a "booking slip" that had been completed by a police
officer shortly after petitioner's arrest. The booking slip
contained biographical information such as petitioner's age,
1. A full recitation of the facts can be found in the
opinion of the Massachusetts Appeals Court. Commonwealth v.
Tracy, 539 N.E.2d 1043 (Mass. App. Ct. 1989), review denied
sub nom., Commonwealth v. Magee, 542 N.E.2d 602 (Mass. 1989).
2. Tracy, a Vietnam veteran, was found not guilty of armed
robbery by reason of insanity stemming from post-traumatic
stress disorder. Tracy, 539 N.E.2d at 1044. He was,
however, convicted of the two other charges. Id.
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height and weight. The lines directly below this information
were reserved for petitioner's offense. Petitioner's offense
was written in large block letters as "C. 265 17 ARMED
ROBBERY WITH A DANGEROUS WEAPON." Just after this entry
appears a second, smaller notation: "2 c. 265 18B
committing an offense while using a firearm (2nd offense)."
On the same day that the prosecution received the
booking slip from the police, it offered the slip into
evidence. Prior to the introduction of the booking slip into
evidence, defense counsel had a brief but sufficient
opportunity to examine it. Tracy, 539 N.E.2d at 1047.
Defense counsel failed to notice the "2nd offense" notation
and proceeded to cross-examine the police officer who
completed the slip about addresses on it. Id. The only
objection raised by defense counsel with respect to the
booking slip was that the Commonwealth was in violation of a
pretrial discovery agreement.
Three days after the jury returned its guilty
verdict defense counsel first noticed the "2nd offense"
notation, and moved for a new trial on the ground that the
allegedly prejudicial second offense notation rendered his
trial fundamentally unfair. The motion was denied. On
direct review the Appeals Court held that because petitioner
did not seek to exclude the booking slip from evidence based
upon the "2nd offense" notation at the time the slip was
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offered by the government, he had procedurally defaulted his
booking slip objection. Therefore, under Massachusetts law,
petitioner's conviction would be upheld unless he could
demonstrate a "substantial risk of a miscarriage of justice."
Tracy, 539 N.E.2d at 1046. Not finding such, the Appeals
Court affirmed petitioner's conviction, and his application
for review before the Supreme Judicial Court was denied.
Commonwealth v. Tracy, 539 N.E.2d 1043 (Mass. App. Ct. 1989),
review denied sub nom., Commonwealth v. Magee, 542 N.E.2d 602
(Mass. 1989). Petitioner then sought a writ of habeas corpus
from the United States District Court for the District of
Massachusetts. The petition was denied and this appeal
ensued.
II.
DISCUSSION
Federal habeas review is generally precluded when a
state court reaches its decision on the basis of an adequate
and independent state ground. Coleman v. Thompson, 111 S.
Ct. 2546, 2553-54 (1991); Harris v. Reed, 489 U.S. 255, 262
(1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Where a
state court decision rests on a petitioner's failure to
comply with a contemporaneous objection rule at the time of
trial, this constitutes an adequate and independent ground.
Wainright, 433 U.S. at 87.
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Under prevailing habeas corpus jurisprudence, a
defendant's failure to comply with a state's contemporaneous
objection rule at trial forecloses judicial scrutiny on
collateral review if "1) the state in fact has a
`contemporaneous objection' rule; 2) the state enforces and
does not waive the rule; and 3) the defendant fails to show
both `cause' for and `prejudice' from, not having complied
with the rule." McCown v. Callahan, 726 F.2d 1, 3 (1st
Cir.), cert. denied, 469 U.S. 839 (1984); see also Puleio v.
Vose, 830 F.2d 1197, 1199 (1st Cir. 1987), cert. denied, 485
U.S. 990 (1988); Allen v. Commonwealth of Massachusetts, 926
F.2d 74, 78 (1st Cir. 1991).3
On appeal, petitioner does not dispute that
Massachusetts has such a contemporaneous objection rule, that
it enforces its rule, and does not waive the rule.
Accordingly, our inquiry focuses on whether petitioner can
show cause for his procedural default as well as prejudice
from the alleged violation. Petitioner maintains that "the
factual basis for the claim [that the booking slip should
have been excluded because it contained a prejudicial
notation] was not reasonably available to [his] counsel,
3. Although an exception to the cause plus prejudice
requirement exists where failure to consider the claim on the
merits would result in a fundamental miscarriage of justice,
Coleman v. Thompson, 111 S. Ct. at 2564, petitioner does not
contend that this exception applies. In any event, the
record does not support such a claim.
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because official misconduct (the prosecutor's introduction of
an irrelevant document as an exhibit) made it likely that he
would not notice the prejudicial notation in the document at
the time it was offered." Brief for Petitioner at 26.
In order to establish cause for the default,
petitioner must demonstrate "that some objective factor
external to the defense impeded [defense] counsel's efforts
to comply with the State's procedural rule." Murray v.
Carrier, 477 U.S. 478, 488 (1986). Two objective impediments
identified by the Court as sufficient to constitute cause
under this standard are (1) that the factual or legal basis
for a claim was not reasonably available to defense counsel,
or (2) that interference by officials made compliance
impracticable. Id.
As a preliminary matter, the Commonwealth argues,
and our review of the record reveals, that petitioner's
"cause" argument has undergone some alterations since the
district court denied his petition. Below, petitioner argued
that "cause" for his procedural default existed because
defense counsel did not have sufficient time to examine the
booking slip. Petitioner also argued that his attorney could
not have been expected to examine the booking slip prior to
trial since the document was irrelevant. There is no
indication in the record, however, that petitioner ever
presented the district court with its present contention,
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i.e., that the prosecutor knowingly proffered an irrelevant
document in order to introduce prejudicial information into
evidence. It is a settled rule in this circuit that
"theories not raised squarely in the district court cannot be
surfaced for the first time on appeal." McCoy v.
Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st Cir.
1991), cert. denied, 112 S. Ct. 1939 (1992).
Nonetheless, assuming arguendo that petitioner's
current "cause" theory is properly before us, we are unable
to find any "external impediments" to trial counsel's failure
to timely notice the allegedly prejudicial entry on the
booking slip. The government's introduction into evidence of
an irrelevant document containing allegedly prejudicial
information did not obviate defense counsel's responsibility
nor in any way impair his ability to carefully examine the
entire booking slip.4 This is particularly true in the
instant case, where defense counsel extensively cross-
examined the officer who completed the booking slip about
other information contained on the slip. Defense counsel
even moved for a mistrial on the basis of that information.
Moreover, the factual basis for the claim was more
than reasonably available to defense counsel prior to the
4. Petitioner's focus on the booking slip's lack of
relevance is long past due. Although the Appeals Court did
note that the booking slip was not relevant to any issue at
trial, Tracy, 539 N.E.2d at 1046, defense counsel did not
object at trial to the slip's admission on this ground.
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admission of the booking slip into evidence. The allegedly
prejudicial notation was on the face of the slip which was
given to defense counsel for examination prior to admission
into evidence. As the Appeals Court noted, "counsel may not
have had much time to look at the booking slip prior to its
introduction," but he "had ample time to examine the slip"
after it was offered. Tracy, 539 N.E.2d at 1047.
As for petitioner's implicit charge of
prosecutorial misconduct, the Appeals Court ruled that the
prosecution did not violate any discovery agreement by not
producing the booking slip prior to trial, id. at 1046, and
that court assumed that the prosecution did not deliberately
conceal knowledge of the booking slip or its contents at any
time. Id. at 1047 n.7. Petitioner has not presented any
evidence of misconduct, but merely alleges that, by
introducing an irrelevant document into evidence, the
government was necessarily motivated by an illicit purpose.
We do not find this reasoning persuasive.
We can perceive no external impediments to
petitioner's compliance with the Commonwealth's
contemporaneous objection rule. Petitioner has tried to
overcome his attorney's oversight by putting the blame on the
prosecutor. This facade cannot cure petitioner's failure to
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demonstrate cause for his procedural default.5 Because the
cause and prejudice requirement is conjunctive, we need not
consider the latter element where the former has not been
satisfied. Puleio v. Vose, 830 F.2d at 1202.
The judgment of the district court is Affirmed.
Affirmed
5. It is well settled that "[a]ttorney error short of
ineffective assistance of counsel . . . does not constitute
cause and will not excuse a procedural default." McCleskey
v. Zant, 499 U.S. 467, , 111 S. Ct. 1454, 1470 (1991). As
the district court noted, petitioner has not alleged that his
representation at trial was constitutionally deficient.
Magee v. Harshbarger, No. 92-13090-WD, slip op. at 8 (D.
Mass. July 7, 1993). Moreover, at oral argument,
petitioner's counsel specifically disclaimed any argument
along these lines.
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