September 23, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1059
ALFRED K. BROWN,
Petitioner,
v.
PAUL MURPHY, SUPT., OCCC,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Alfred K. Brown on brief pro se.
Scott Harshbarger, Attorney General, and Gail M. McKenna,
Assistant Attorney General, Criminal Bureau, on brief for appellee.
Per Curiam. Petitioner Alfred K. Brown appeals the
denial by the district court of his motion for habeas relief,
pursuant to 28 U.S.C. 2254. We affirm.1
1
Brown first claims that he received constitutionally
ineffective assistance of counsel in the state trial and
appellate courts. The state contends that the ineffective
assistance claim is insulated from federal habeas review
because the state court found it procedurally defaulted.
Brown responds in turn that the default should be excused
because it was caused by ineffective assistance of appellate
counsel. The claim of ineffective assistance of appellate
counsel is based solely on counsel's failure to argue
ineffective assistance of trial counsel. Since the question
of whether cause has been shown is inextricably entangled
with the merits, we find it easier to address directly those
merits.
We find the claim of ineffective assistance of trial
counsel to be without foundation, essentially for the reasons
given by the district court. We add only the following.
Insofar as Brown's claim rests on counsel's alleged
failure to investigate adequately the defense of insanity,
1The "Antiterrorism and Effective Death Penalty Act of
1
1996" (Pub. L. 104-32) was signed into law while this appeal
was pending. We need not determine to what extent the Act's
amendments govern this case since, even under the more
expansive scope of review prior to the Act, Brown is not
entitled to relief.
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the record indicates no such deficiency. We note in
particular that the information provided in the affidavits of
Drs. Yudowitz and Profit is essentially cumulative of what
was presented at trial. Hence, the failure to present such
information does not constitute ineffective assistance of
counsel. See, e.g., United States v. Jackson, 935 F.2d 832,
846 (7th Cir. 1991) (counsel not ineffective for failing to
present cumulative evidence).
Brown may be correct in his claim that the trial judge
erred in informing the jury as to the sentencing consequences
of the verdicts of first and second degree murder, other than
that of not guilty. See Commonwealth v. Ferreira, 373 Mass.
116, 123-38, 364 N.E.2d 1264, 1269-72 (1977) (error to charge
jury that verdict of guilty of murder in first degree would
carry sentence of life imprisonment without parole, whereas
verdict of guilty of murder in second degree would carry same
sentence with eligibility for parole after fifteen years).
However, it would have been reasonable for counsel to have
made a "deliberate tactical decision" not to object to that
charge based on the reasoning "that informing the jury of the
sentencing outcomes associated with possible verdicts
improved his client's chances of avoiding a verdict of guilty
of murder in the first degree." Commonwealth v. Burnett, 371
Mass. 13, 16-17, 353 N.E.2d 665, 667 (1976). A decision
consistent with a reasonable trial strategy cannot support a
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claim of ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 689 (1984); Lema v. United States,
987 F.2d 48, 51 (1st Cir. 1993).
Finally, we agree with finding of the state trial and
appellate courts that the record indicates that Brown's
statements to the police on the night of the murders were
voluntary.
Affirmed. See 1st Cir. Loc. R. 27.1.
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