November 17, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2294
No. 94-2294
ROBERT E. McCLARY,
ROBERT E. McCLARY,
Petitoner, Appellant,
Petitoner, Appellant,
v.
v.
PETER A. PEPE, JR., ET AL.,
PETER A. PEPE, JR., ET AL.,
Respondents, Appellees.
Respondents, Appellees.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on November 9, 1995, is
The opinion of this Court issued on November 9, 1995, is
amended as follows:
amended as follows:
On page 2, footnote 27 is changed to footnote 1.
On page 2, footnote 27 is changed to footnote 1.
November 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2294
ROBERT E. McCLARY,
Petitoner, Appellant,
v.
PETER A. PEPE, JR., ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Robert E. McClary on brief pro se.
Scott Harshbarger, Attorney General, and Pamela L. Hunt,
Assistant Attorney General, on brief for appellees.
Per Curiam. Pro se plaintiff Robert McClary appeals from
the summary dismissal of his habeas corpus petition. He
claims that his conviction for trafficking cocaine is
unconstitutional because the prosecutor violated Doyle v.
Ohio, 426 U.S. 610 (1976), by improperly cross-examining
McClary and commenting on McClary's post-arrest silence in
his closing argument.
We have thoroughly reviewed the record and the parties'
briefs on appeal. We are persuaded that the habeas petition
was properly dismissed under Anderson v. Charles, 447 U.S.
404, 408-09 (1981), (per curiam), and Grieco v. Hall, 641
F.2d 1029, 1032-36 (1st Cir. 1981). We note that even if we
assumed arguendo that Doyle error is present, habeas relief
is not warranted here. The record discloses that the
evidence against McClary was strong and that the error could
not have had a substantial and injurious effect on the
verdict. See Brecht v. Abrahamson, 113 S. Ct. 1711, 1722
(1993). While we need not decide whether the "harmless
beyond a reasonable doubt" test of Chapman v. California, 386
U.S. 18, 24 (1967), should be applied to this appeal1, the
evidence indicates that any alleged Doyle error was harmless
under this test as well. Accordingly, the judgment of the
1. While McClary made this argument below, he has failed to
develop it on appeal. Thus, the point has been waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
denied, 494 U.S. 1082 (1990).
district court is affirmed.
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