DiBenedetto v. Hall

United States Court of Appeals
For the First Circuit
____________________

No. 00-2279

FRANK DIBENEDETTO,

Petitioner, Appellant,

v.

TIMOTHY HALL, ET AL.,

Respondents, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

____________________

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
and DiClerico*, District Judge.

____________________

Wendy Sibbison, for appellant.
William J. Meade, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellees.
____________________

* Of the District of New Hampshire, sitting by designation.
 November 16, 2001
____________________
LYNCH, Circuit Judge. Frank DiBenedetto appeals the

district court's denial of his habeas corpus petition

challenging the constitutionality of his state conviction for a

double homicide more than a decade ago. See Commonwealth v.

DiBenedetto, 427 Mass. 414, 693 N.E.2d 1007 (1998). He is

serving a life sentence.

DiBenedetto presents two claims, arguing that the

determination of the Massachusetts Supreme Judicial Court (SJC)

on these issues is in error on de novo review and, additionally,

that it was contrary to, or an unreasonable application of,

clearly established Supreme Court rulings of constitutional law.

28 U.S.C. § 2254(d) (Supp. II 1996). DiBenedetto's first claim

is that the trial court's refusal to allow him to present

evidence that he believed would undermine the key witness for

the prosecution violated his rights under the Sixth Amendment of

the United States Constitution. His second claim is that the

prosecution's testing, resulting in the destruction, of physical

evidence that may have been exculpatory violated his rights

under the Sixth and Fourteenth Amendments. In addition, his

case raises questions about the standards by which federal

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courts ruling on state prisoners' habeas petitions review state

court decisions that do not, apparently, decide the federal

constitutional claims raised.

We affirm the denial of habeas relief, aided by the

very helpful decision of the district judge, and, in light of an

intervening decision of this court, clarify the standard of

review to be applied to state court decisions under the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

Pub. L. No. 104-132, 110 Stat. 1214, when the state court does

not decide the federal constitutional claim.

I.

The petitioner DiBenedetto was charged with the 1986

murders of Frank Chiuchiolo and Joseph Bottari. All reportedly

had connections to the La Cosa Nostra organized crime group.

The bodies of the two victims were found in a park in Boston's

North End. Chiuchiolo had been shot seven times, including five

shots to the head, and Bottari had been shot sixteen times,

including six shots to the head. Each had been shot by three

separate guns. DiBenedetto was tried jointly with codefendant

Louis Costa, while a third individual, Paul Tanso, was tried

separately. The jury found DiBenedetto guilty of two counts of

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first degree murder on charges of deliberate premeditation and

extreme atrocity and cruelty. Costa was also convicted of first

degree murder, while Tanso was acquitted.

The prosecution's evidence against DiBenedetto

consisted primarily of: 1) the testimony of Richard Storella, a

fully immunized witness who claimed to have been present at the

shooting and involved in luring the victims to the scene; 2) the

testimony of Joseph Schindler, a lawyer, who observed the

shootings from the window of his third floor apartment

overlooking the park; and 3) DiBenedetto's sneakers, one of

which had trace amounts of something that may have been human

blood. DiBenedetto's arguments on this appeal relate to the

first and third pieces of evidence.

Storella's testimony was key to the prosecution's case.

Storella testified that he and the victims had agreed to rob

DiBenedetto, a drug dealer and one of Storella's best friends,

of cocaine. The plan was for Storella to arrange a buy, and the

two others to show up and rob DiBenedetto. Storella says he

later decided to inform DiBenedetto of the planned robbery and

DiBenedetto instructed him to set up the buy as planned. When

the victims arrived at the park intending to rob DiBenedetto,

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DiBenedetto and his accomplices were armed and waiting to gun

them down. Prior to the trial, Storella had given various

inconsistent statements to the police, in depositions, and to

the grand jury, including one statement where he confessed to

being the killer himself. However, in all Storella's versions

except his initial denial of any knowledge of the shootings,

DiBenedetto was one of the shooters.

DiBenedetto's claim is that he was unconstitutionally

precluded from introducing evidence of the defense theory that

he was being set up by Storella to take the fall for a mob hit,

and that Storella, despite being immunized, was lying in order

to "curry favor" with lead players in the La Cosa Nostra, whom

Storella had previously angered. More specifically,

DiBenedetto's theory was that these killings were "fallout" from

the mob-ordered murder of Vincent Limoli, three and a half

months prior to the killings at issue here. Limoli, like the

victims here, was shot during what was set up as a drug purchase

in the same section of the North End. See United States v.

Barone, 114 F.3d 1284, 1289-91 (1st Cir. 1997) (describing

Limoli murder). He argues that the Limoli murder was

retribution for Storella and Limoli's robbery of a "made" mob

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member in 1985 and that the two victims in this case had angered

the La Cosa Nostra leadership over their actions in connection

with the Limoli murder: Bottari by refusing to act as Limoli's

executioner, and Chiuchiolo by breaking the code of silence to

tell his sister (Limoli's girlfriend) details of the killing.

DiBenedetto claims that the two victims were killed by the La

Cosa Nostra in retaliation for their disobedience, and that

Storella, fearing for his own life due to his involvement in the

robbery that precipitated all this, was under mob orders to

cover up the real story behind the killings. He argues that the

trial judge violated his constitutional rights by not allowing

him to present evidence of, or cross-examine Storella regarding,

the Limoli murder fallout theory.

The sneakers, along with the claimed evidence of blood,

form the basis of DiBenedetto's second habeas claim. The

witness Schindler had identified the shoes as the ones

DiBenedetto was wearing at the shooting. For years following

the arrest, the Commonwealth maintained that there was no

evidence of blood on the sneakers, and so the prosecution would

not use them as evidence. This was the prosecution's position

in the pretrial conference report. Less than a week before the

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second trial was scheduled to begin, on New Year's Eve day, the

prosecution conducted its first swab test on the sneakers, which

resulted in a positive result on the left sneaker, indicating a

small spot of "what was either the blood of a human or some

other animal or perhaps certain plant peroxidases."

DiBenedetto, 693 N.E.2d at 1011. In the process of testing, the

sneaker was cleaned of any trace of blood. DiBenedetto's

experts were unable to replicate the test on the left sneaker,

but did obtain a positive swab result on the other shoe, where

the prosecution's swab test had found nothing. The challenge to

the sneaker evidence has two components. First, DiBenedetto

argues that the test, conducted in violation of the pretrial

conference report, violated his due process rights. Second, he

argues that the sneakers were exculpatory evidence which the

prosecution did not take sufficient steps to prevent from

becoming contaminated and destroyed in the process of testing.

II.

This case has been to the SJC twice. On DiBenedetto's

first appeal, the SJC reversed the murder conviction because the

witness Storella had been unavailable to testify and the trial

judge erroneously admitted his recorded testimony as evidence

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against DiBenedettto. Commonwealth v. DiBenedetto, 414 Mass.

37, 605 N.E.2d 811, 815-16 (1992). At DiBenedetto's second

trial, Storella did testify and DiBenedetto was again convicted

of murder in the first degree. DiBenedetto again appealed to

the SJC, presenting the claims that he presents here on habeas,

as well as many additional claims not argued here. The SJC

affirmed the conviction, albeit apparently without considering

either claim as a federal constitutional claim. DiBenedetto,

693 N.E.2d 1007 (1998).

On the exclusion of evidence concerning the Limoli

murder, the SJC affirmed the trial court's conclusions that, as

a matter of state law, the Limoli killing was too remote to be

relevant and that the evidence was too complicated and would

divert the jury's attention. The SJC concluded that DiBenedetto

had proffered no evidence, other than speculation, that anyone

else had a motive to kill Chiuchiolo and Bottari, or to show

that the murders were sufficiently similar. Similarly, the SJC

concluded that the trial judge did not abuse his discretion in

barring cross-examination of Storella regarding the Limoli

murder and his alleged fear of retribution from the La Cosa

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Nostra. The SJC did not discuss the Sixth Amendment

implications of these decisions.

With regard to the admission of the evidence indicating

the possible presence of blood on one of DiBenedetto's sneakers,

the SJC relied on its precedent in Commonwealth v. Willie, 400

Mass. 427, 510 N.E.2d 258 (1987), which held that "when

potentially exculpatory evidence is lost or destroyed, a

balancing test is employed . . . . The courts must weigh the

culpability of the Commonwealth, the materiality of the evidence

and the potential prejudice to the defendant." Id. at 261.

Based on this balancing test, the SJC held that there was "no

doubt that the Commonwealth failed to comply with the pretrial

conference report," but that DiBenedetto "failed to demonstrate

that [he was] prejudiced by [the] testing of the sneakers for

blood." DiBenedetto, 693 N.E.2d at 1011. Again, the SJC

decision cited only Massachusetts judicial decisions and did not

discuss the federal constitutional claims that were raised.

III.

Under the standard established in AEDPA, a habeas

petition may not be granted "with respect to any claim that was

adjudicated on the merits in State court proceedings" unless the

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state court decision: 1) "was contrary to, or involved an

unreasonable application of, clearly established Federal 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 in the State court proceeding." 28 U.S.C.

§ 2254(d) (Supp. II 1996). A state court's findings on factual

issues "shall be presumed to be correct" and the petitioner

bears the burden of disproving factual findings by "clear and

convincing evidence." 28 U.S.C. § 2254(e).

In this case, the proper application of the AEDPA

standard warrants further discussion. In the district court,

DiBenedetto argued that, because the SJC's decision does not

discuss DiBenedetto's constitutional claims or federal

constitutional case law, these claims should be reviewed de novo

by the federal courts. The district court rejected this

argument.

The district court cited to 28 U.S.C. § 2254(d)(1)

stressing the words "resulted in" and "involved" to support its

conclusion that the state court's ultimate holding, not its

rationalization process, is what matters under AEDPA.

DiBenedetto v. Hall, No. 99-10843, slip op. at 9 (D. Mass. Aug.

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25, 2000). It is correct that when the state court has addressed

the federal constitutional issue, it is its ultimate outcome,

and not its rationalization, which is the focus. See Hurtado v.

Tucker, 245 F.3d 7, 20 (1st Cir.), cert. denied 122 S.Ct. 282

(2001). But that does not mean the deferential standard applies

where the state court has not addressed the constitutional

issue.

In our view, the critical point is the preceding clause

in the statute, which states that the deferential standard used

applies to claims that were "adjudicated on the merits" in the

state courts. 28 U.S.C. § 2254(d). If the state court has not

decided the federal constitutional claim (even by reference to

state court decisions dealing with federal constitutional

issues), then we cannot say that the constitutional claim was

"adjudicated on the merits" within the meaning of § 2254 and

therefore entitled to the deferential review prescribed in

subsection (d). This was the holding of our recent decision in

Fortini v. Murphy, which forecloses the district court's

approach here. 257 F.3d 39, 47 (1st Cir. 2001) ("[W]e can

hardly defer to the state court on an issue that the state court

did not address."); accord Hameen v. Delaware, 212 F.3d 226, 248

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(3d Cir. 2000) (applying pre-AEDPA independent review of

constitutional claim where state court decision rested on state

statutory construction), cert. denied, 121 S.Ct. 1365 (2001).

Faced with state court opinions that do not discuss

constitutional claims raised by the defendant, the Fortini

approach requires that federal courts apply de novo review to

the federal constitutional claims raised in habeas petitions.

Because the SJC chose to decide both issues on state

law grounds, we review both de novo.1 As to the first claim, we

particularly note that the Commonwealth, arguing that the SJC

findings that the Limoli murder was too "remote" and not

"sufficiently similar" are state law determinations,2 has taken

1 Whether or not the state court has decided the federal claim
on the merits, any factual determinations that it makes -- even if they
relate solely to an independent state claim -- remain entitled to the
presumption set forth in 28 U.S.C. § 2254(e)(1) insofar as they may be
useful in consideration of the federal claim. In some cases, the
outcome of the federal claim may be determined by these factual
conclusions drawn by the state court.
2 For instance, Massachusetts seems to require that, in
order for evidence of potentially exculpatory third-party crimes
to be introduced, the prior crimes must be very close in time to
the crime charged, which is not typically required in federal
cases. Compare DiBenedetto, 693 N.E.2d at 1012, and
Commonwealth v. Rosa, 422 Mass. 18, 661 N.E.2d 56, 60 (1996)
(crimes must be "closely connected in point of time"), with
Barone, 114 F.3d at 1296 (crimes committed ten years prior to
the crime charged admitted under federal rules), and Holt v.

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the position that the state rule is an independent rule to which

we must give deference. Taken to its logical conclusion, this

argument confirms that the SJC discussion of the evidentiary

claim does not address the federal rule, even implicitly.

IV.

The first question is whether the trial court's

decision to exclude evidence supporting a defense theory was in

error as a matter of federal constitutional law.

Limoli Murder Fallout Theory

DiBenedetto argues that his right to present a defense

was severely compromised by the trial court's refusal to allow

evidence or cross-examination concerning the alleged mob murder

of Limoli and the ensuing fallout. He maintains that this was

crucial on two fronts: both to showing that others had motive to

kill the victims and were the most likely killers, and to

showing that the immunized witness Storella was biased, in that

he feared retaliation from the La Cosa Nostra if he did not

testify against DiBenedetto. DiBenedetto argues, as he must in

United States, 342 F.2d 163 (5th Cir. 1965) (crimes committed
more than six months prior to crime charged admitted under
federal rules).

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a habeas petition, that this refusal rises to the level of

violating his constitutional rights, including his Sixth

Amendment right to present a defense and confront witnesses

against him and his Fourteenth Amendment due process rights.

A. Compulsory Process Claim

DiBenedetto claims that his Sixth Amendment right to

compulsory process was violated by the trial judge's refusal to

allow him to present any evidence regarding the Limoli murder,

some three and a half months prior to the murders at issue in

this case, and the connection of the victims and key prosecution

witness to Limoli's murder.

We start with a statement of the federal rule. Under

the Sixth Amendment Compulsory Process Clause, criminal

defendants generally have the right to present "competent,

reliable . . . exculpatory evidence." Crane v. Kentucky, 476

U.S. 683, 690 (1986) (state rule excluding evidence concerning

means by which a voluntary confession was obtained violated

Sixth Amendment); also Chambers v. Mississippi, 410 U.S. 284,

295-96 (1973) (application of state hearsay rule to bar

testimony regarding third party's repeated confession of crime

violated defendant's Sixth Amendment rights). Nonetheless, as

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we pointed out in Fortini, the Supreme Court cases undoing state

court convictions based on exclusion of evidence involve

egregious situations "and the more recent decisions of the Court

. . . create serious doubts that the Court is interested in

carrying the doctrine beyond egregious cases." 257 F.3d at 46.

In one of its more recent cases, the Supreme Court held

that "[a] defendant's right to present relevant evidence is not

unlimited, but rather is subject to reasonable restrictions,"

including the state's "legitimate interest in ensuring that

reliable evidence is presented," and evidentiary exclusions will

not violate the constitution "so long as they are not

'arbitrary' or 'disproportionate to the purposes they are

designed to serve.'" United States v. Scheffer, 523 U.S. 303,

308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).

DiBenedetto first offered the mob fallout theory on the

basis that it tended to show that third-party culprits, not

DiBenedetto and his codefendant, were guilty. Evidence that

tends to prove a person other than the defendant committed a

crime is relevant, but there must be evidence that there is a

connection between the other perpetrators and the crime, not

mere speculation on the part of the defendant. Id. at 21. The

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trial judge found the connection too attenuated, holding that

the evidence tended to show the Limoli murder was committed by

two men who were not in Massachusetts on the date of the

Chiuchiolo-Bottari murders and there was no evidence to show the

two were involved. The defense then further refined its theory,

arguing that the reason Limoli was murdered -- stealing from a

mob member -- applied just as well to Storella, whose life was

spared, but who was left in the unenviable position of owing a

favor to the mob. Both victims here had defied the La Cosa

Nostra leadership, like Limoli, giving the mob reason to execute

them. The trial court considered this to be a different motive

than the one provided by Storella for the murder, but one that

did not exclude DiBenedetto as the executioner. Further, the

trial judge found, assuming that Limoli had been ordered

executed, that there was no evidence of any such order as to

these victims. And the trial judge viewed this as raising an

issue that would divert the jury from the central issue.

Whether evidence is too speculative involves a subset

of other questions. Here, the state courts said the two crimes

were too remote and dissimilar and so the connection was

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speculative.3 We are doubtful: the crimes were only three and

a half months apart, showed certain commonalities of modus

operandi, had one overlapping main character, and a background

chorus of the same criminal group. A trial judge could easily

have decided to admit this evidence. See Barone, 114 F.3d at

1296 (crimes committed ten years prior to the crime charged

admitted under federal rules); Holt v. United States, 342 F.2d

163 (5th Cir. 1965) (crimes committed more than six months prior

to crime charged admitted under federal rules). If those were

the only objections to the evidence, then the trial judge's

decision to exclude might be questionable. But there were other

objections -- most importantly, that the only actors in this

scenario that the defense was able to actually name (the Limoli

killers) could not possibly have been the killers here. And so

3 The Commonwealth argues that the SJC findings of
remoteness and dissimilarity are either fact findings or state
law determinations. Both arguments miss the point of
DiBenedetto's claim. The question is not whether the SJC
correctly determined the Massachusetts state law regarding
cross-examination, but rather whether its application in this
case violates the defendant's Sixth Amendment rights. Further,
these sorts of conclusions -- remoteness and similarity -- are
mixed questions of law and fact, which receive the same level of
deference as legal rulings. Coombs v. Maine, 202 F.3d 14, 18
(1st Cir. 2000).

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the trial judge was left only with the murky figures of unnamed

mob killers, whose existence in the shadows could possibly, but

not likely, be inferred from a complicated tale of the murder of

Vincent Limoli.

Further, the speculative nature is only the start of

the problem. There were at least two other difficulties with

allowing the Limoli murder into evidence: that evidence would

disparage the victims here as bad people, deserving of death,

and it would pose a real danger of distracting the jury from the

case before it. The trial judge, who was better situated than

we to have a feel for the evidence, thought the proposed

evidence would create both these problems.

In United States v. Levy-Cordero, 67 F.3d 1002, 1013

(1st Cir. 1995), we explained that the defendant's Sixth

Amendment rights "must be weighed against countervailing public

interests," which include the factors outlined by the Supreme

Court in Taylor v. Illinois, 484 U.S. 400 (1988). The Taylor

factors include "[t]he integrity of the adversary process, which

depends both on the presentation of reliable evidence and the

rejection of unreliable evidence, the interest in the fair and

efficient administration of justice, and the potential prejudice

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to the truth-determining function of the trial process." Id. at

414-15. The trial judge's concerns here go to the truth-

determining function of the trial, a valid concern under the

Taylor test.

It is a stretch to say that the evidentiary ruling

amounted to a constitutional violation. The SJC's affirmance of

the trial court's ruling does not reach the level of a

constitutional violation of a defendant's right to present

exculpatory evidence. See Chambers, 410 U.S. 284 (1973);

Pettijohn v. Hall, 599 F.2d 476, 480-81 (1st Cir. 1979). "The

defendant's right to compulsory process is itself designed to

vindicate the principle that the 'ends of criminal justice would

be defeated if judgments were to be founded on a partial or

speculative presentation of the facts.'" Taylor, 484 U.S. at

411, (quoting United States v. Nixon, 418 U.S. 683, 709 (1974)).

This combination of unreliability, disparagement, and the

tangential nature of the evidence is sufficient to uphold the

trial judge's decision against constitutional challenge. Thus,

using the Taylor balancing factors, DiBenedetto had no right

under the Sixth Amendment to present evidence concerning the

victims' ties to the Limoli murder and to the mob generally.

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B. Cross-Examination of Storella for Bias

We also ask whether DiBenedetto has made out a

constitutional claim as to the inability to cross-examine

Storella concerning his connection to the mob. The Supreme

Court has recognized that "the exposure of a witness' motivation

in testifying is a proper and important function of the

constitutionally protected right of cross-examination." Davis

v. Alaska, 415 U.S. 308, 316-17 (1974). "[B]ias is 'always

relevant as discrediting the witness and affecting the weight of

his testimony.'" United States v. Lynn, 856 F.2d 430, 432 (1st

Cir. 1988) (quoting United States v. Tracey, 675 F.2d 433, 437

(1st Cir. 1982)). However, the Supreme Court has also held

that the Confrontation Clause does not

prevent[] a trial judge from imposing any limits on
defense counsel's inquiry into the potential bias of
a prosecution witness . . . . [T]rial judges retain
wide latitude . . . to impose reasonable limits on
such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the
issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

Van Arsdall sets forth the test for determining whether

a limitation on cross-examination violates the Confrontation

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Clause. The first question to be asked under the Van Arsdall

test is whether the limitation prejudiced the examination of

that particular witness. In other words, absent the limitation,

would the jury have received a "significantly different

impression" of the witness's credibility? Id. at 679-80; see

also United States v. Twomey, 806 F.2d 1136, 1140 (1st Cir.

1986) (limitation on questions regarding witness's commission of

two murders, giving him motive to cooperate with government, not

prejudicial because cross-examination had established that he

received a favorable sentencing recommendation in exchange for

testimony). The second element of the Van Arsdall test is

whether the error was harmless beyond a reasonable doubt; if so,

reversal is not warranted. Van Arsdall, 475 U.S. at 681.

Two decisions of this Court provide guidance in this

case. In Lynn, we were confronted with the question of whether

a trial court's complete foreclosure of cross-examination "into

a relevant and not fully explored area" violated the defendant's

Sixth Amendment rights. Lynn, 856 F.2d at 433-34. We held

that, to meet the constitutional standard, the trial court "must

ensure that the jury is provided with 'sufficient information

concerning formative events to make a "discriminating appraisal"

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of a witness's motives and bias.'" Id. at 433 (quoting Twomey,

806 F.2d at 1140 (quoting United States v. Campbell, 426 F.2d

547, 550 (2d Cir. 1970))). We concluded that, "[w]hile the

cross-examination . . . was extensive, there were relatively few

questions concerning [the witness's] continuing reasons to lie

to please the government" and therefore the constitutional

standard had not been met. Id. at 433-34.

However, our decision in Lynn must be viewed next to

our decision on the habeas petition presented in Bui v. DiPaolo,

170 F.3d 232 (1st Cir. 1999), where we held that the

Confrontation Clause does not give a defendant the right to

cross-examine regarding "every conceivable theory of bias." Id.

at 242. Rather, "[t]he threshold requirement imposed by the

Confrontation Clause is satisfied as long as the defendant is

given a fair chance to inquire into a witness's bias." Id.; see

also United States v. Boylan, 898 F.2d 230, 254 (1st Cir. 1990)

("So long as a reasonably complete picture of the witness'

veracity, bias, and motivation is developed, the judge enjoys

power and discretion to set appropriate boundaries."). In Bui,

we observed that a trial judge may circumscribe cross-

examination if the party is unable to lay a proper evidentiary

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framework; where the offer is "inherent[ly] speculative[]," the

trial judge may "prohibit[] cross-examiners from mounting

fishing expeditions." 170 F.3d at 244; see also United States

v. Zaccaria, 240 F.3d 75, 82 (1st Cir. 2001) (refusal to allow

inquiry into witness's drug trafficking, based solely on alleged

admission to defendant, did not violate Confrontation Clause

because "some proof in the form of concrete facts must underlie

any offering that can be accepted by a trial court as

evidence"). The question here is whether the bias alleged by

DiBenedetto falls more within the ambit of the Lynn case, or the

Bui case. The Commonwealth argues that Bui controls, while

DiBenedetto cites Lynn. The SJC held that Storella had been

sufficiently cross-examined as to his credibility, based on his

repeated lies to investigating authorities, and as to bias,

based on his need to cooperate with the government to avoid

being charged with the murder himself. DiBenedetto, 693 N.E.2d

at 1012. However, the bias alleged by DiBenedetto is bias of a

different nature -- although Storella was cross-examined on bias

towards the government, he was not cross-examined on bias

towards a third party -- namely, the La Cosa Nostra leadership.

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Third-party bias is a proper topic for cross-examination. See

United States v. Abel, 469 U.S. 45, 50-52 (1984).

Nonetheless, the defense did have the opportunity to

cross-examine Storella generally as to his motivation in

developing the countless variations and embellishments to his

account. Both defense counsel repeatedly asked Storella what he

was afraid of, or what his concern was, at the time he gave his

statements to the investigating authorities. Storella

repeatedly answered that he was afraid of being charged with

conspiracy to murder, never once indicating that he was

concerned with breaking the La Cosa Nostra code of silence or

otherwise angering the mob. Storella also testified under

cross-examination that he was afraid of Bottari and Chiuchiolo

because of their connections to "a few known figures" in the

North End, indicating that, at least in his view, these two were

not on the outs with the La Cosa Nostra leadership. Like the

voir dire in the Bui case, Storella's responses to the general

cross-examination questions indicate that Storella was not

likely to provide the defendant with the answers he was seeking

through more specific cross-examination on the Limoli murder.

Based on the extensive questioning by the two defense attorneys

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regarding Storella's motives and credibility, and the

speculative nature of the proffered line of inquiry, the trial

judge did not offend DiBenedetto's Sixth Amendment rights in

excluding cross-examination on the Limoli murder, even as to

bias.

V.

Destruction of Potentially Exculpatory Evidence

DiBenedetto's second habeas claim is that his due

process rights were violated by the introduction of evidence

resulting from the prosecution's testing of his sneaker, which

was conducted at the start of a holiday weekend less than a week

before the second trial was scheduled to begin, and which

foreclosed complete testing by his own expert. There are two

prongs to this claim. First, DiBenedetto argues that the

testing and introduction of the sneakers as evidence violated

the Pre-Trial Report, which required that the prosecution give

the defense notice of any testing and an opportunity to examine

any material evidence. He alleges the contravention of the Pre-

Trial report constitutes a due process violation. Second, he

claims that the sneakers were exculpatory evidence, which the

prosecution had a duty to preserve. The arguments concerning

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the sneakers are weak and it is difficult to imagine the sneaker

evidence played much of a role in the jury's determination.

The sneakers were seized by the police four days after

the murder. The lawyer Schindler, in testimony the jury could

have discounted, said he saw the brand name symbol on the

sneakers of one of the murderers from his third floor window on

that dark night. His testimony tied the sneakers to the event.

The sneakers showed no visible signs of blood, itself surprising

given the number of times the victims were shot at close range.

When the prosecution tested the sneakers, it found a spot on the

left sneaker, but not the right. When the defense tested the

shoes a week later, it found a spot on the right sneaker, but

not the left. The prosecution's expert testified this was not

surprising as to the left sneaker, as its swab test on the left

sneaker had removed the spot. This removal of the stain gives

rise to DiBenedetto's destruction of evidence claim. The SJC

rejected this claim, finding that DiBenedetto had failed to

demonstrate prejudice, as there was "little doubt that one or

both the . . . sneakers tested positive." DiBenedetto, 693

N.E.2d at 1011.

A. Violation of Pre-Trial Order

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 DiBenedetto's claim that the violation of the pretrial

procedures violates his constitutional due process has little

merit. The SJC held that, although "[t]here is no doubt that

the Commonwealth failed to comply with the pretrial conference

report," it was immaterial as there was no prejudice to

DiBenedetto. Id. at 1011. Violations of state procedural rules

will not constitute a federal due process violation unless they

violate fundamental notions of fairness. See, e.g., Brown v.

Maloney, No. 00-2556, 2001 WL 1181109 (1st Cir. Oct. 11, 2001);

Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Given

the questionable evidentiary value of the sneaker for either the

defense or the prosecution, neither the testing nor introduction

of the evidence creates a situation of fundamental unfairness,

no matter how unsavory the prosecution's tactics.

B. Exculpatory Evidence

The second aspect of DiBenedetto's claim, based on the

destruction of potentially exculpatory evidence, is controlled

by clearly established federal law, set forth by the Supreme

Court in Arizona v. Youngblood, 488 U.S. 51 (1988), and

California v. Trombetta, 467 U.S. 479 (1984). In Youngblood,

the Supreme Court held that the police's failure to preserve

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potentially exculpatory semen evidence in a rape case was not a

due process violation unless the police had acted in bad faith.

488 U.S. at 337-38. Nonetheless, simple good faith is not a

complete exoneration. See United States v. Alston, 112 F.3d 32,

35 (1st Cir. 1997) ("We are not prepared to say that the

government's 'good faith' is always and everywhere a complete

defense to a due process claim where the government deliberately

alters evidence that might otherwise have exculpated the

defendant.").

DiBenedetto argues that the prosecution's last minute

testing of the sneakers, without notice to the defense and in

apparent contradiction of its pretrial report, is evidence of

bad faith. We need not decide whether this meets the "bad

faith" standard, because a closer look at the Supreme Court

decision in Trombetta indicates that DiBenedetto's due process

claim falls short in other regards.

The rule established in Trombetta was that, in order

to warrant reversal, destroyed "evidence must possess an

exculpatory value that was apparent before the evidence was

destroyed, and must also be of such a nature that the defendant

would be unable to obtain comparable evidence by other

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reasonably available means." 467 U.S. at 479-80. The defendant

claims that the sneaker's lack of blood was clearly exculpatory

because it was highly unlikely that he could have shot the

victims multiple times at close range without soiling his

sneakers. However, given that the sneaker tested positive for

blood or other organic matter, it ceased to be clearly

exculpatory. Moreover, the defendant was free to cross-examine

the prosecution's expert on the lack of any blood stains visible

to the naked eye, which goes more to the heart of the

potentially exculpatory nature of the sneakers.

Further, the Trombetta court, in holding that the

results of a breath-analysis blood alcohol test could be

introduced at trial even if the breath samples were not

preserved, noted that the "evidence to be presented at trial was

not the breath itself but rather the [test] results obtained

from the breath samples," which the defendants could have

attempted to impeach by challenging the calibration and overall

reliability of the instrument. Id. at 488, 490. Similarly, in

this case, the evidence to be presented was not the spot itself,

but rather the test results, which the defendant was free to

impeach by questioning the expert about the test methodology,

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the inconsistent results, and, most importantly, about the

test's inability to conclude that the spot was even human blood.

There was no constitutional violation.

VI.

Conclusion

The district court's denial of DiBenedetto's petition

for habeas corpus is affirmed.

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