McCambridge v. Hall

United States Court of Appeals
For the First Circuit
____________________
No. 00-1621

JOHN M. MCCAMBRIDGE,
Petitioner, Appellant,
v.

TIMOTHY HALL, SUPERINTENDENT,
Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

____________________
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
Torruella and Selya, Circuit Judges,
Cyr, Senior Circuit Judge,
and Lynch, Lipez and Howard, Circuit Judges.
____________________
John M. McCambridge on brief pro se.
Elizabeth L. Prevett, Federal Defender Office, on brief for
amicus curiae Federal Defender Office.
James J. Arquin, Assistant Attorney General, and Thomas F.
Reilly, Attorney General, on brief for appellee.

____________________

August 27, 2002
____________________

OPINION EN BANC
 LYNCH, Circuit Judge. Petitioner John M. McCambridge

appeals the district court's denial of his habeas corpus petition

challenging the constitutionality of his state conviction for

manslaughter. A panel of this court had earlier reversed the

district court and granted his petition, holding: (1) that the

prosecution failed to disclose exculpatory evidence and improperly

took advantage of the absence of this evidence in its closing

arguments, in violation of McCambridge's right to due process; and

(2) that the Massachusetts Appeals Court decision holding otherwise

was contrary to and an unreasonable application of clearly
established Supreme Court law. McCambridge v. Hall, No. 00-1621,

slip op. (1st Cir. Sept. 24, 2001). That opinion was withdrawn
when the full court subsequently granted the Commonwealth's
petition for en banc review. We now affirm the district court's

denial of habeas corpus.

I.

John McCambridge was charged in 1994 with first degree
murder, weapons violations and various motor vehicle offenses. The
charges arose out of a shooting and a motor vehicle accident
involving McCambridge and the victim, Richard Doyle. McCambridge

admitted to the shooting and said he acted in self-defense. The

jury rejected the murder charge and the charge that he was

operating a motor vehicle after his license had been revoked or

suspended, but it convicted him of manslaughter, unlawful

possession of a firearm, operating a motor vehicle under the

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influence of alcohol, and reckless operation of a motor vehicle.

He is currently serving a sentence of fifteen to twenty years.

We describe the facts pertinent to the grounds of
decision as they were found by the state court, Commonwealth v.

McCambridge, 44 Mass. App. Ct. 285, 690 N.E.2d 470 (1998), fleshed

out by other facts contained in the record and consistent with the
state court findings. We are bound to accept the state court

findings of fact unless McCambridge convinces us, by clear and

convincing evidence, that they are in error. 28 U.S.C. §

2254(e)(1). On no point has he done so.

McCambridge and Doyle were drinking friends and former

co-workers. The two had been out drinking together at a bar in

Cambridge on the night of the incident, which occurred in the early
hours of November 11, 1993. At the bar, McCambridge argued with

the bartender, screaming at him either because of the television

set, or because of McCambridge's attentions to the bartender's
girlfriend. Leaving the bar around one a.m., Doyle and McCambridge

drove off together in Doyle's van.

At about two a.m., a state trooper observed a traffic

disturbance on the Southeast Expressway, which was caused by the

van weaving through the southbound lanes and driving unusually

slowly, about forty miles per hour, on this major road. The

trooper turned on his lights and siren in an attempt to pull over

the van, but the van continued to weave through the lanes. The van

then accelerated to between fifty miles per hour and sixty-five

miles per hour and swerved into the cement curbing on the right

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shoulder of the Expressway. After the van hit the right shoulder,

it fish-tailed across the road, turning perpendicular to the

Expressway and slowing to a speed of about thirty-five miles per
hour. The van then struck the cement center median head-on,

hitting first on the front right side, then with the whole front of

the van. The van went up into the air, rising several feet, and
landed with the driver's side down, facing the wrong way down the

road. The van then skidded backwards about ten feet, rotating 360

degrees as it slid. The trooper also said that, as the van went

into the center median, he saw a head in the driver's seat area;

the head smashed into the windshield as the van hit the ground.

The trooper estimated that about two minutes passed from when he

first saw the van until the crash, and that the van had traveled
about two or two-and-a-half miles, weaving and then crashing.

A second witness, an off-duty state trooper, saw the van

weaving through the Expressway lanes, then fish-tailing into the
right shoulder, crossing the Expressway into the center median,

rising up into the air, and landing on the driver's side. A third

witness saw the van weaving across lanes, then actually rocking

back and forth before it hit the right shoulder, at which point it

shot straight across the road into the center median, and flipped

onto its side, landing with the driver's side down on the pavement.

The trooper and other witnesses found McCambridge in a

fetal position in the area of the driver's seat, bleeding from a

head injury. Rescue personnel had to remove the van windshield in

order to free McCambridge from the vehicle. As the rescue

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personnel were removing McCambridge's outerwear, a derringer pistol

fell out of his clothing.

Doyle had been thrown from the van and his head was
pinned under the driver's side rear wheel so that only his body was

visible. His clothing had been torn off around the neck area,

leaving his chest completely exposed. The state troopers at the

scene reported that his skin appeared blue or grayish, he was not

breathing and he had no pulse, although one paramedic testified

that Doyle was still warm to the touch when the paramedic arrived.

There was no attempt to resuscitate him. Doyle was pronounced dead
upon arrival at the hospital. He had been shot once in the right

cheek and once in the back (in the area of the right shoulder). He
also had a head wound indicating that the back of his head had
struck or been struck with a linear object that was at least three

inches in length and had no sharp or rough edges. Doyle's blood
alcohol level was 0.22%.
In the van, the troopers found a Smith & Wesson

semiautomatic pistol; the safety was off and the gun was cocked,

loaded, and ready to fire. The police also found a billy club with

blood on it that was consistent with Doyle's blood type and two

boxes of ammunition, each corresponding to one of the two guns.

Doyle had been living in the van prior to the crash, and the van

was used by a homeless advocacy organization to transport

individuals to shelters.

The prosecution's theory at trial was that McCambridge

had shot Doyle and was driving the van, en route to dumping the

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body, when the crash occurred. McCambridge admitted shooting

Doyle, but argued he did so in self-defense. More specifically,

McCambridge claimed that Doyle, in a drunken rage, was threatening
to shoot him for implying that Doyle was a child abuser.

McCambridge says that the derringer was Doyle's, which Doyle

himself had placed on the dashboard, as he was on his way to sell
the gun to a customer in Quincy.

McCambridge testified that the argument in the van had

its genesis in a conversation between Doyle and himself, a month or

so before the shooting. In that conversation, McCambridge says he

told Doyle that he had heard Doyle had been convicted for child

abuse. Doyle, after initially denying the charge, admitted it was

true, said he had done his time for it, and said he didn't want to
hear any more. Doyle told McCambridge that "if [McCambridge] ever

threw it up to him, his face again . . . he'd put a bullet in

[McCambridge's] frigging head."
Despite this warning, McCambridge says he raised the

topic again in the van, just prior to the shooting. McCambridge

testified that the argument began after leaving the bar, when

McCambridge asked Doyle, who was driving, to give him a ride to his

ex-wife's house. Doyle said he had to make a phone call and left

the van. When he returned, Doyle said he had to go to Quincy

because he had a customer for a derringer pistol. Doyle pulled the

derringer out from under the seat and threw it on the dashboard.

McCambridge again asked to be taken to his ex-wife's, but Doyle

drove on toward Quincy. This angered McCambridge and so he told

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Doyle he was drunk and called Doyle a name implying that Doyle had

abused a child. McCambridge testified that Doyle then pulled out

a nine-millimeter Smith & Wesson from his waist band, and
threatened McCambridge with it. McCambridge testified that he

pushed downward on Doyle's right hand, while Doyle pushed upwards,

and that he begged Doyle to put the gun down. At the same time,
McCambridge says he grabbed the derringer from the dashboard. He

saw Doyle cock the hammer of the Smith & Wesson, so he shot Doyle

in the face with the derringer. McCambridge testified he had no

memory of anything else until he woke up in the hospital.
According to a ballistics expert's testimony at trial,

Doyle had been shot with the derringer pistol that fell out of

McCambridge's clothing at the accident scene. The ballistics

expert testified that the derringer needed to be manually loaded,
would only bear two cartridges, and needed to be manually cocked
each time the weapon was fired. He further testified that it would

take between thirteen and sixteen pounds of pressure to pull the

trigger, which he characterized as "a very heavy trigger pull." He

also testified that he would expect a considerable flash when the

gun was fired, "enough to instantaneously brighten a darkened

room." The state trooper pursuing the van testifed that he saw no
flash or other light from the van's interior.
A forensic chemist testified at trial for the prosecution

that, in her opinion, Doyle was shot while he was in the driver's
seat of the van; but at the time of the accident, Doyle was

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probably near the sliding passenger's side door and McCambridge in

the driver's seat. This supported the prosecution's theory of the

case, which was that McCambridge had shot Doyle sometime after
leaving the bar, and then deposited his body in the back of the

van. She testified that Doyle's blood was spattered in a downward

and outward direction on the driver's side door in a manner
suggesting a high-velocity impact, such as from a gunshot wound,

with blood dripping down the door. This indicated that the van was

in an upright position when the blood spattered on the door. She

testified that the hardening around the edges of blood droplets

suggested that the blood on the upper part of the window remained

undisturbed for about three minutes and that the larger quantities

of blood, dripping down the driver's side door, were undisturbed
for at least five minutes.

Blood matching Doyle's type was found on the driver's

seat and had soaked through the upholstery into the cushion, and a

pool of Doyle's blood type had collected under the driver's seat.

There was also blood on the seat of McCambridge's jeans that was
consistent with Doyle's blood; the forensics expert testified that
the stain was consistent with McCambridge sitting in blood, rather

than merely wiping up against blood. More of the Doyle-type blood
was found on the front leg of McCambridge's jeans; on a jacket

belonging to McCambridge, which the police found in the back of the

van after the crash; and on the billy club found in the van.

Doyle's blood was also on the passenger's side sliding door, which

was off the hinges at the bottom, and open "like a flap." Fibers

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from Doyle's sweater were fused to the lower portion of the sliding

door, indicating that the sweater had struck the door with great

force. She also testified that, based on the stippling marks on
Doyle's clothing, she believed the gunshot wound in Doyle's back

was caused by a shot fired from a distance of three feet or

greater.
As for McCambridge, the forensics expert found tissue,

hair and blood on the upper passenger's side corner of the

windshield and on the passenger's side dashboard that appeared to

be McCambridge's, as well as on the rear-view mirror (which was

detached from its proper place). McCambridge's blood was also

found on his sweater and the jacket he was wearing at the time of

the crash. The expert also found glass fragments from the
windshield and the passenger's side window in McCambridge's

clothes, indicating that McCambridge was probably in contact with

the passenger's side window when it broke. (There was no such
evidence that Doyle had come in contact with the broken

windshield.)

The Commonwealth had a specialist in accident

reconstruction testify. He supported the witnesses' memories of

the crash, and opined that Doyle's body must have been ejected from

the flapping passenger's side sliding door at the first impact. He

also testified that, upon impact, the occupants of the van would

have been thrown forward and to the right. He further testified
that the driver was likely to have been pinned behind the wheel.

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 The medical examiner who testified for the Commonwealth

stated that the manner in which Doyle's impact wounds bled

suggested that it was possible that he was still alive at the time
of the crash, but that he could not be sure. He based this upon

the fact that there was blood in the tissues surrounding the impact

abrasions, which could indicate that Doyle's heart was still
pumping blood at the time of impact, but that could also be caused

by the body being turned multiple times.1 The medical examiner's

opinion was that Doyle was shot first in the cheek, from a distance

of six to eight inches to the right of the right cheek; this shot

probably would have killed Doyle within eight minutes. He stated

that the second gunshot, to the upper right back shoulder area,

severed Doyle's aorta and thus probably would have killed Doyle in
less than two to three minutes, and definitely in less than eight

minutes. He also concluded that, based on the amount of blood

that Doyle had inhaled into his lungs, Doyle had time to take at
least a few breaths between the two shots. Based on Doyle's blood

alcohol content and the fact that Doyle had absorbed all the
alcohol in his stomach, the medical examiner estimated that Doyle
had stopped drinking about ninety minutes prior to being killed.

The medical expert also testified that Doyle's head wound was
consistent with a blow from a billy club, such as was found in the
van.

1
He testified that it also could have been caused by
attempts to resuscitate Doyle, but none of the witnesses recalled
any attempts at resuscitation.

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 McCambridge's forensics expert testified that, upon

impact, the passenger would be propelled forward into the right-

hand corner of the windshield, but that the steering wheel and
console could prevent the driver from hitting the windshield,

instead sending the driver back, through the twenty-nine inch space

between the front bucket seats, and out the passenger's side
sliding door. He further testified that the derringer has an

average muzzle energy of 95 foot pounds, roughly equivalent to a

punch from a professional boxer, whereas the Smith & Wesson has an

average muzzle energy of 355 foot pounds. Due to the relatively

weak muzzle energy of the derringer, he testified that it was

possible for Doyle to have been shot once and still have remained

conscious, active, and possibly even more aggressive because of the
wound.

Since the habeas issue asserted is based on the question

of evidence as to whether or not Doyle had been convicted of child
abuse, we go into detail on this point. At trial, the prosecution

called Doyle's brother. During the testimony, McCambridge's

counsel asked for a side-bar and informed the court that, if the

Commonwealth planned to challenge the truth of Doyle's conviction

for child abuse, he would like the opportunity to cross-examine

Doyle's brother about whether Doyle had served time for child

abuse.2 At that point, the prosecution said it was not certain

whether it intended to challenge the truth of the conviction. The

2
Prior to trial, McCambridge, proceeding pro se, had
unsuccessfully requested Doyle's "rap sheet" by means of a hand-
written letter to the prosecutor.

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court said that it would keep Doyle's brother available to be

recalled as a witness if the prosecution decided to argue that

Doyle had not been convicted.
Later, during McCambridge's testimony, the prosecutor

objected on hearsay and prejudice grounds to McCambridge referring

to Doyle's conviction. The prosecutor said the prejudice
outweighed any probative value. The court asked if there was a

conviction on the charge. Defense counsel represented there was a

conviction, but said "whether it's true or not in some ways is

irrelevant." At that point, the judge asked counsel whether either

had checked Doyle's probation record. The prosecutor replied, "It

just says -- it doesn't say what for. I have no idea what it's

for." The judge allowed McCambridge to testify to his first
conversation with Doyle about the conviction, agreeing that it went

to McCambridge's state of mind, which was relevant to the self-

defense theory, and not for the truth of the conviction, which was
not relevant to self-defense. On cross-examination of McCambridge,

the prosecutor raised the issue of the conviction, and then asked,

"You know Mr. Doyle is deceased?," to which McCambridge answered

yes. The prosecutor then asked, "He can't refute your allegations

right now; can he?" The defense objected to that question, and the

objection was sustained.

Near the conclusion of the defense's case, defense

counsel requested a side-bar to clarify whether he needed to recall

Doyle's brother. That turned, he said, on whether the prosecution

intended to impugn McCambridge's credibility by arguing that Doyle

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had never been convicted or in jail, when there was no evidence

either way on this point. The prosecutor took the position that

Doyle had not been in jail, that the defense counsel could ask the
question of Doyle's brother if he wanted, and that it was up to the

defense, not the prosecution, to put Doyle's criminal record into

evidence. When asked by the court, the prosecutor said, "He wasn't
in jail, Judge," and then, when the court further asked if Doyle

was convicted, the prosecutor responded "No. No." The prosecutor

said all he had seen on the record was spousal abuse, "so far as

[he knew, Doyle] had never been in jail," and that was all he could

say on the matter.

Defense counsel said he did not have access to the

criminal record and would like it produced. He said he did not
want to make it part of the case but that he "d[id]n't want to open

it up for argument that [he] didn't prove that [Doyle] had one,

and, therefore, [McCambridge] was lying." The court asked the
prosecution what it intended to argue on the issue. The prosecutor

replied that he had no problem if the defendant called the brother

"because, as far as I know, there is no record that Mr. Doyle had

any convictions." When the judge inquired further, the prosecutor

said he should not be put in the position of disclosing what his

closing argument would be. He foreshadowed what he might do by

saying McCambridge "gets up there and says [Doyle's] done time when

I know he hasn't from the records I've seen. And if [McCambridge

has] got the record, he can [attempt to introduce it.]" The court

then interjected that the information had come in only for the

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state of mind of the defendant. The prosecutor said that was all

he was going to argue.

In his closing argument, the defense counsel was careful
to emphasize that McCambridge's testimony about Doyle's conviction

was offered only to show his state of mind and that there was no

evidence that Doyle ever molested or abused any child. He stated
that "[t]here is simply no evidence one way or another . . . .

There is no evidence that he did it. There is no evidence that he

didn't do it. It was admitted for . . . the state of mind." The

prosecutor, in turn, in his closing referred to the earlier
conversation:

Does the defendant have something for you to
believe when he gets up there and says, oh, yeah, I had
an argument with Richard Doyle because of child
molestation? There is absolutely evidence of that. Was
that put in there to tell you what his frame of mind was?
No. That was his third shot at the victim from the stand,
assassinating his reputation with no evidence. That's
what that was for, I suggest to you, not to show state of
mind.
Literally read, the prosecution admitted there was evidence that

defendant had an argument with Doyle in the aftermath of the child
abuse accusation, but that the real purpose for the testimony was
to impugn the victim, not to show McCambridge's state of mind.3

3
The now-withdrawn panel opinion of this court assumed
that there had been a typographical error and that the transcript
omitted the word "no" between "absolutely" and "evidence." But the
transcript sentence and the flow of the argument make perfect sense
as stated. The prosecutor may well have meant that there was
evidence of the conviction, or of the prior conversation, but no
evidence of the alleged confrontation the night of Doyle's death.
This was the transcript that the state court had and McCambridge's
brief before the Massachusetts Appeals Court cited the passage as
it appeared in the transcript, with no modifications. If there was

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Defense counsel did not object to the prosecution's closing

statement. Nor was the closing statement presented as error to the

state courts on McCambridge's direct appeal.

II.

McCambridge appealed his conviction to the Massachusetts

Appeals Court, presenting three main arguments: that the derringer

and his clothes were the product of an unlawful search and seizure

and should have been suppressed; that the jury should have been

instructed on the possibility of a necessity defense to the

firearms charge; and that "the trial court erred by not requiring
Doyle's criminal record to be made part of the record, and the

prosecutor may have violated the defendant's state and federal due
process rights by not disclosing that record." On this third
argument, McCambridge argued:

The suppression of material evidence favorable to
the accused and requested by him violates the due process
clause of the Fifth Amendment. Brady v. Maryland, 373
U.S. 83, 87 (1963). In the case at bar, because the
trial court refused to require the Commonwealth to
produce Doyle's criminal record, the defendant cannot
prove that exculpatory evidence was withheld. . . . Thus,
this Court should order the Commonwealth to produce
Doyle's criminal record so that an appellate decision can
be made. In the alternative, the case should be remanded
to the Superior Court for production of the document at
issue.

an error in the transcript which worked against the defendant,
under state law he should have sought to correct the transcript.
Mass. R. App. Pro. 8(e). The first suggestion that a word was
omitted from the transcript appears to be in the brief that the
Commonwealth submitted before the panel of this court. Our holding
here does not turn on whether or not the word "no" should have been
included, and so we do not need to decide the point.

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The Commonwealth responded that McCambridge had not requested that

Doyle's record be marked as an exhibit until the sentencing stage,

that the proper means for challenging a failure to disclose
exculpatory evidence would have been through a motion for new trial

under Massachusetts Rule of Criminal Procedure 30(b), and that the

conviction record was not material to the verdict because "the jury
clearly believed the defendant's testimony regarding a

confrontation with the victim," since they convicted him only of

manslaughter.

After filing its brief with the state appeals court, the

Commonwealth filed a Motion to Expand the Record to include Doyle's

criminal record, which did in fact contain a conviction for child

neglect and a notation that Doyle served six months in jail for
this conviction. The Commonwealth's motion explained that, at

trial, the prosecutor had only a partial print-out of the record,

which had no mention of the child neglect conviction, and included
as an appendix a copy of this truncated print-out.

In his reply brief, McCambridge argued that "the

Commonwealth has now disclosed that exculpatory evidence was

withheld at trial" and, citing Brady v. Maryland, 373 U.S. 83

(1963), and United States v. Bagley, 473 U.S. 667 (1995),

maintained that he was entitled to a new trial.

On appeal, the Massachusetts Appeals Court held:4
Failure to mark Doyle's criminal record for
identification. The defendant requested the trial judge

4
The court reversed the firearms conviction, agreeing that
the judge should have instructed the jury on a necessity defense.

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 at the sentencing hearing to mark Doyle's criminal record
as an "exhibit." The judge denied the request and the
defendant claims it was error, for the record was
necessary to support his claim that the prosecution had
withheld exculpatory evidence from him. The defendant
claimed that Doyle's record would have supported his
claim that Doyle had been convicted of child abuse, which
would have corroborated the defendant's testimony at
trial that Doyle pulled a gun on him when the defendant
called Doyle a name indicating he was a child abuser,
which accusation on a prior occasion had prompted Doyle
to threaten the defendant's life if he ever accused him
of this offense again. While the defendant pressed for
the introduction of the victim's criminal record at
trial, he did not object when the judge did not order its
production or request that the record be marked for
identification. He cannot now be heard to complain that
the judge failed to do so at the sentencing stage.

In any event, assuming without deciding that the
prosecutor should have produced the victim's record,
there was no prejudice to the defendant because he was
aware of the victim's record and was prepared to offer
such evidence at trial. Moreover, by convicting the
defendant of manslaughter, the jury obviously credited
the defendant's testimony that the struggle in the van
was precipitated by the defendant's remark about this
offense to Doyle. See Commonwealth v. Tucceri, 412 Mass.
401, 412-14, 589 N.E.2d 1216 (1992).

McCambridge, 690 N.E.2d at 475. In essence, the court held that
McCambridge had forfeited the issue at trial and could not

resuscitate it by raising it at sentencing. It also held in the
alternative that McCambridge suffered no prejudice from the absence

of Doyle's record.

McCambridge then filed an application to obtain further

review with the Massachusetts Supreme Judicial Court (SJC). He

argued that

the defendant was dissuaded from attempting to put [the
criminal record] evidence before the jury because the
prosecutor misled the defense by representing that the
alleged victim did not have a record and in any event
that the issue wouldn't be argued in closing. The
withholding of information with the intent to mislead and

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 prejudice the defendant, and the exploitation of that
misdirection in closing argument violated the defendant's
rights to a fair trial.

McCambridge cited Brady and Commonwealth v. Tucceri, 412 Mass. 401,
589 N.E.2d 1216 (1992), a Massachusetts case on failure to produce

exculpatory evidence, as support. The Commonwealth responded that

"any failure to produce the victim's criminal record did not
prejudice the defendant." The SJC, without opinion, denied further

appellate review. Commonwealth v. McCambridge, 427 Mass. 1103, 707

N.E.2d 1076 (1998).

III.

In January 1999, McCambridge filed a petition for habeas

corpus under 28 U.S.C. § 2254 (1994 & Supp. II 1996) in the
District of Massachusetts. He argued that his detention is
unconstitutional because the trial court erroneously admitted the

seized clothing and gun into evidence in violation of both his
Fourth and Fifth Amendment rights; that the trial court failed to
instruct the jury on the necessity defense; and that the prosecutor

improperly withheld exculpatory material, namely, Doyle's
conviction record. On the Commonwealth's motion, the district
court dismissed McCambridge's first argument as to the seized

clothing and gun, because it was essentially a Fourth Amendment
claim that was not reviewable on habeas. McCambridge v. Hall, 68

F. Supp. 2d 1, 4 (D. Mass. 1999). The district court subsequently

held that the gun charge error did not affect the manslaughter
conviction, as "[t]he question put to the jury was not whether

McCambridge used an unlawful device when defending himself, but

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rather whether he used excessive force." McCambridge v. Hall, 94

F. Supp. 2d 146, 154 (D. Mass. 2000).

The district court also held that McCambridge had
procedurally defaulted on his claim that the prosecutor's failure

to disclose Doyle's conviction record violated McCambridge's rights

under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United

States, 405 U.S. 150 (1972). McCambridge, 94 F. Supp. 2d at 154-

55. The district court referred to the Massachusetts Appeals Court

holding cited above, noting that "[p]rocedural default acts as an

independent and adequate state ground to uphold the conviction."

Id. at 155. The court further held that McCambridge had not shown

that "some objective factor external to the defense impeded defense

counsel's efforts to comply with the state's procedural rule," id.

at 155-56, nor had he shown "actual prejudice" from the

prosecution's failure to produce the criminal conviction, id. at

156, nor any miscarriage of justice, id. The court reasoned:
The actual contents of Doyle's criminal record are not
relevant to this analysis because the details of the
actual criminal record were not known to McCambridge at
the time of the homicide. . . . Rather, McCambridge
believed, from whatever source, that Doyle had a criminal
history of child abuse, knew that accusations of child
abuse were likely to provoke violence from Doyle, and
after such provocation became fearful of his life when
Doyle drew a gun. To these facts McCambridge testified
at his trial, and the jury must have accepted that his
provocation story at least raised some reasonable doubt
in order to convict on manslaughter rather than first- or
second-degree murder.

Id.

The district court declined to issue a certificate of

appealability. This court subsequently issued a certificate of

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appealability on McCambridge's Brady claim. On appeal, a panel of

this court reversed the district court and granted the habeas

petition. McCambridge v. Hall, No. 00-1621, slip op. (1st Cir.
Sept. 24, 2001). The panel held that the state court's

determination that McCambridge's counsel should have objected at

trial to the failure of the court to order the prosecutor to
produce the record and to mark it into evidence was contrary to

clearly established federal law, and its conclusion that

McCambridge suffered no prejudice was an unreasonable application

of the law to the facts. The panel held that, under clearly

established federal law, a defendant may rely on a prosecutor's

representations that she has fully complied with her Brady

disclosure requirements, and therefore, need not object. Id. at
17-18. Further, the panel held that the prosecutor's insinuation

in his closing that McCambridge had invented the entire story about

Doyle's criminal conviction prejudiced McCambridge and "may well
have tipped the balance in favor of a manslaughter conviction."

Id. at 38.

IV.

A habeas petitioner must meet certain preliminary

criteria before we can reach the merits of his claim. He must have
fairly presented his claims to the state courts and must have
exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A).

Further, if the state decision rests on the adequate and
independent state ground of procedural default, then federal habeas

review is unavailable absent a showing of cause and prejudice, or

-20-
a showing that a miscarriage of justice will otherwise result.

Strickler v. Greene, 527 U.S. 263, 282 (1999); Gunter v. Maloney,

291 F.3d 74, 78 (1st Cir. 2002); Burks v. Dubois, 55 F.3d 712, 716
(1st Cir. 1995).

The district court here held that the state court decided

that McCambridge had procedurally defaulted the claim he now makes,
and that finding of procedural default constitutes an adequate and

independent state ground. McCambridge, 94 F. Supp. 2d at 155. The

district court held that McCambridge had shown neither cause nor

prejudice. Id. at 155-56. The district court also agreed with the

Appeals Court's alternate holding, that even if the prosecution

should have produced the record, there was no prejudice to

McCambridge. Id. at 156.
Some members of the majority agree with each of the

district court's holdings. All members of the majority agree on

the district court's no-prejudice holding, and so, without
discussion or elaboration of the procedural default argument, we

address the issue of whether the state court's conclusion that

McCambridge was not prejudiced was an unreasonable application of

the law.

Under the standard established in the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104,

110 Stat. 1214, 1219 (1996), a federal court may not issue a habeas

petition "with respect to any claim that was adjudicated on the

merits in State court proceedings" unless the state court decision:

1) "was contrary to, or involved an unreasonable application of,

-21-
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)(1).

A. Applicability of § 2254

We first deal with, and reject, the argument of amicus
that we must review the prejudice issue de novo, rather than look

to whether the state court's determination is unreasonable. The
Federal Defender's Office5 asserts that the Massachusetts state
court analyzed McCambridge's Brady claim solely under a

Massachusetts state standard and therefore his federal claim was
never "adjudicated on the merits" within the meaning of § 2254. If
that were so, we would review McCambridge's Brady claim de novo,

rather than asking whether the state court's holding is "contrary
to, or . . . an unreasonable application of, clearly established
Federal law," the standard required by § 2254. See DiBenedetto v.

Hall, 272 F.3d 1, 6-7 (1st Cir. 2001), cert. denied, 122 S.Ct. 1622
(2002); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001), cert.

denied, 122 S.Ct. 1609 (2002).

5
This court invited the Federal Defender's Office to file
an amicus brief in support of McCambridge and we thank the Office
for its assistance.

-22-
 It is true that the relevant portion of the Massachusetts

Appeals Court decision cites only to a state court decision,

Tucceri, 589 N.E.2d 1216. The state court inquiry did focus on
whether there was "prejudice" to the defendant, which is the

relevant federal standard. See Strickler, 527 U.S. at 281-82. But

the Federal Defender's Office argues that Tucceri established a
standard for prejudice that is different from the federal standard,

and the citation to Tucceri indicates that the court was not using

the federal standard to determine prejudice.

Tucceri states explicitly that it is articulating a state

law standard that is "more favorable to defendants than the Federal

Constitutional standard." 589 N.E.2d at 1223 n.11. There is no

dispute that this is so. If the conviction survives this more
lenient state standard, then, absent exceptional circumstances, it

follows that the conviction would survive the federal standard, and

we see no reason the state courts would be required to say
explicitly that both standards are met. If there is a federal or

state case that explicitly says that the state adheres to a

standard that is more favorable to defendants than the federal

standard (and it is correct in its characterization of the law), we

will presume the federal law adjudication to be subsumed within the

state law adjudication. Cf. DiBenedetto, 272 F.3d at 6 (stating

that de novo review applies when "the state court has not decided

the federal constitutional claim (even by reference to state court

decisions dealing with federal constitutional issues)").

Therefore, we reject amicus's argument that de novo review under

-23-
Fortini applies here, and we apply § 2254's standard to the state

appeals court's determination that McCambridge was not prejudiced

by the prosecution's failure to disclose the conviction record.

B. Standard of Review under § 2254

We turn to whether the state court holding that there was

no prejudice "was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

There is no argument that the state court decision is

"contrary to" clearly established federal law. The Supreme Court
has stated:

Under the "contrary to" clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J.).

Here, the state court applied the proper rule of law by asking if
the defendant was prejudiced, see Strickler, 527 U.S. at 281-82,

and there is no Supreme Court case involving "materially

indistinguishable facts" that is contrary to the outcome here.

Rather, the debate centers on whether the state appeals court
determination was an "unreasonable application" of the federal rule

on prejudice to the facts of the case here.
Williams made it clear that "[u]nder the 'unreasonable

application' clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle

-24-
from [the Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner's case." Williams, 529

U.S. at 413 (O'Connor, J.). The Supreme Court further clarified
that unreasonableness must be an objective standard, id. at 410,

and that an erroneous or incorrect application is not necessarily

an unreasonable application, id. at 411.
Some possible readings of "unreasonable application" are

too severe: Williams indicates that the test is not whether it is

possible that a competent court could have reached the same

conclusion. See Hertz & Liebman, Federal Habeas Corpus Practice

and Procedure, § 32.3, 1449 (4th ed. 2001) (noting that the Supreme

Court in Williams found state supreme court decision to be an

"unreasonable application" despite the fact that other courts had
reached the same conclusion); see also Valdez v. Ward, 219 F.3d

1222, 1229-30 (10th Cir. 2000), cert. denied, 532 U.S. 979 (2001)

("[T]he fact that one court or even a few courts have applied the
precedent in the same manner to close facts does not make the state

court decision 'reasonable.'").
Some possible readings are too lenient: the mere fact

that there was some error or that the state decision was incorrect

is not enough. Williams, 529 U.S. at 411; Boss v. Pierce, 263 F.3d

734, 739 (7th Cir. 2001), cert. denied, 122 S.Ct. 1961 (2002);

Cannon v. Gibson, 259 F.3d 1253, 1260 (10th Cir. 2001), cert.

denied, 122 S.Ct. 1966 (2002); Tucker v. Catoe, 221 F.3d 600, 605

(4th Cir. 2000), cert. denied, 531 U.S. 1054 (2000); Francis S. v.

Stone, 221 F.3d 100, 111 (2d Cir. 2000). The range for what is an

-25-
unreasonable application must fall somewhere between the two.

Within that range, if it is a close question whether the state

decision is in error, then the state decision cannot be an
unreasonable application. We agree with the Second Circuit that

"some increment of incorrectness beyond error is required."

Francis S., 221 F.3d at 111. The increment need not necessarily be
great, but it must be great enough to make the decision

unreasonable in the independent and objective judgment of the

federal court. Id.

As Justice O'Connor noted in Williams, unreasonableness

is "difficult to define," 529 U.S. at 410, but it is a concept

federal judges apply in different contexts. "Reasonableness is a

concept, not a constant." United States v. Ocasio, 914 F.2d 330,
336 (1st Cir. 1990). For example, the state court decision may be

unreasonable if it is devoid of record support for its conclusions

or is arbitrary. O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.

1998).

To the extent prior opinions by panels of this court
state a standard inconsistent with that articulated here, they are

overruled. Thus, the standard recited in Williams v. Matesanz, 230

F.3d 421, 424 (1st Cir. 2000), and O’Brien v. Dubois, 145 F.3d 16,

25 (1st Cir. 1998) -- that "for the writ to issue, the state court

decision must be so offensive to existing precedent, so devoid of

record support, or so arbitrary, as to indicate that it is outside

the universe of plausible, credible outcomes" -- must be read to

conform to these teachings. In light of Williams v. Taylor, we

-26-
think that the more stringent interpretation of § 2254 articulated

in O'Brien and Williams v. Matesanz is not justified.

C. Prejudice Analysis

We apply this "unreasonable application" standard to the

state appellate court's determination that there was no prejudice

to McCambridge from the failure of the prosecutor to have produced

the victim's record. The Massachusetts Appeals Court based its no

prejudice finding on two independent reasons. There was no

prejudice because 1) McCambridge was aware of the victim's record

and was prepared to offer such evidence at trial; and 2) "[b]y
convicting the defendant of manslaughter, the jury obviously

credited the defendant's testimony that the struggle in the van was
precipitated by the defendant's remark about this offense to
Doyle." 690 N.E.2d at 475. While some on the en banc majority

think the state appeals court's first ground alone would be
dispositive, we focus on the second ground, which all in the
majority think clearly disposes of the petition.

Even assuming arguendo that the prosecutor should have
turned over the conviction record, there is no prejudice under
Brady and so no due process violation unless there is "a reasonable

probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." United

States v. Bagley, 473 U.S. 667, 682 (1985) (plurality opinion).

This has been referred to as the Brady prejudice or materiality
standard; without it, there is no Brady violation. Strickler, 527

U.S. at 281-82.

-27-
 The Supreme Court explained in Bagley that a "'reasonable

probability' is a probability sufficient to undermine confidence in

the outcome." 473 U.S. at 682; see also Kyles v. Whitley, 514 U.S.
419, 435 (1995) ("One . . . show[s] a Brady violation by . . .

showing that the favorable evidence could reasonably be taken to

put the whole case in such a different light as to undermine
confidence in the verdict."); United States v. Agurs, 427 U.S. 97,

109-10 (1976) ("The mere possibility that an item of undisclosed

information might have helped the defense, or might have affected

the outcome of the trial, does not establish 'materiality' in the

constitutional sense."); United States v. Sepulveda, 15 F.3d 1216,

1220 (1st Cir. 1993) (discussing materiality in the context of

Brady claims). At the same time, prejudice under Brady should not
be equated with a sufficiency of the evidence standard, Kyles, 514

U.S. at 434-35, nor does it "mean that the reviewing court must be

certain that a different result would obtain," United States v.
Dumas, 207 F.3d 11, 15 (1st Cir. 2000).

Defendant and amicus argue that the only reasonable

conclusion is that McCambridge was prejudiced sufficiently to

warrant a new trial. They point to the prosecutor's closing

comments,6 saying he implied that Doyle was not convicted, after
the prosecutor had not produced the conviction record and

represented to the court there was no such conviction. They argue

6
For present purposes, we do not pass on the
Commonwealth's arguments that McCambridge never objected to the
prosecution's closing argument, or raised this as an independent
issue in the state appeals court, and so has waived the issue.

-28-
that this was a close case on the evidence and ultimately hinged on

McCambridge's credibility, which they argue was deeply wounded by

the prosecutor's comment. As support for this, they say that
Doyle's blood alcohol level, subcutaneous bleeding, and the medical

technician's testimony that Doyle was still warm indicate that

Doyle was shot shortly before the crash; that the blood and tissue
samples on the passenger side door and windshield indicate that

McCambridge was in the passenger's seat at the time of the crash;

that there was a cocked gun with the safety off in the van; and

that the boxes of ammunition in the car indicate that both guns

belonged to Doyle. They also argue that the state appellate court's

reasoning that "by convicting the defendant of manslaughter, the

jury obviously credited the defendant's testimony that the struggle
in the van was precipitated by the defendant's remark about [the

conviction] to Doyle," 690 N.E.2d at 475, is arbitrary and

unsupported by the record, because the jury convicted McCambridge
of driving offenses and therefore clearly did not credit his

testimony as to how the fight began.

The Commonwealth responds that, given the evidence

presented to the jury, it was not unreasonable for the

Massachusetts Appeals Court to conclude that, even if McCambridge

had been able to corroborate his testimony with the conviction

record and the prosecutor had not made his statement in closing,

there was no "reasonable probability that . . . the result of the

proceeding would have been different." Bagley, 473 U.S. at 682.

The result in this proceeding was that McCambridge was acquitted of

-29-
first degree murder and convicted of manslaughter, so the question

is whether there is a reasonable probability that the manslaughter

verdict would have been different.
To assess that question, we first turn to the state trial

court's extensive jury instructions, which we quote in relevant

part below. The trial judge explained the Commonwealth's burden to
prove that McCambridge did not act in self-defense:

The Commonwealth must prove . . . that one or more of the
three requirements of self-defense was absent from this
case.

. . . [T]hose three requirements are first that
the defendant must have reasonably believed that he was
being attacked or was immediately about to be attacked
and that he was in immediate danger of being killed or
seriously injured.

Second, the defendant must have done everything
that was reasonable under the circumstances to avoid
physical combat before resorting to force and, third,
that the defendant must have used no more force than was
reasonably necessary in the circumstances to protect
himself.

She also gave thorough instructions on how to differentiate

manslaughter upon provocation from self-defense and the role of

excessive force:
Manslaughter is an unlawful, intentional killing
resulting from a sudden transport of the passions of
fear, anger, fright, nervous excitement or heat of blood
when there is no time to deliberate and when such passion
or heat of blood is produced by adequate or reasonable
provocation and without malice or upon sudden combat it
would have been likely to produce in an ordinary person
an abnormal state of mind and actually did produce such
a state of mind in the defendant.

. . . .

. . . The first element the Commonwealth must
prove beyond a reasonable doubt is that the defendant
inflicted an injury upon Mr. Doyle from which Mr. Doyle

-30-
 died; second, that the defendant injured Mr. Doyle as a
result of sudden combat or in the heat of passion or
using excessive force in self-defense; and, third, that
the homicide was committed unlawfully without legal
excuse or justification.
The provocation sufficient to reduce an unlawful
killing from murder to manslaughter is that provocation
which would likely produce in the ordinary person such a
state of passion, anger, fear, fright, or nervous
excitement as would eclipse a person's capacity for
reflection or restraint and actually did produce such a
state of mind in the defendant.

. . . .

Another factor or circumstance which mitigates or
reduces murder to manslaughter is when a person kills
using excessive force in self-defense. . . .
Specifically, if the person initiated an assault against
the defendant so that the defendant reasonably feared
that he was in danger of being killed or suffering
grievous bodily harm at the hands of Mr. Doyle, then the
defendant has the initial right to use whatever means
were reasonably necessary to avert the threatened harm.
But, if the defendant used excessive force, that is, more
force than was reasonable or proper under the
circumstances of this case or the defendant, himself,
became the attacker and the use of such force resulted in
the death of his assailant, then that would constitute
manslaughter.
After a few hours of deliberation, the jury asked for clarification

on unlawful killing, malice aforethought, burden of proof, and

reasonable doubt. The jury then asked for clarification on the

definition of manslaughter. The judge re-read the manslaughter

instructions that she had previously given.

Based on these instructions, the state appeals court

reasonably concluded that the jury must have found that McCambridge

was provoked in some way, resulting in a sudden heat of passion,

-31-
leading to physical conflict.7 That is what McCambridge himself

said and the jury accepted his version. The only evidence

presented at trial regarding any possible provocation for the
altercation was McCambridge's testimony that Doyle threatened him

with the nine millimeter Smith & Wesson after McCambridge had

called him a child abuser, and that a conflict ensued. Thus the
jury accepted McCambridge's story about Doyle's anger at being

called a child abuser. Nothing could be added to this by having

the fact of the child neglect conviction established or admitted

into evidence.

The state court also reasonably concluded that the jury

necessarily found that McCambridge, in his self defense, used at

least excessive force against Doyle (or that McCambridge turned
into the attacker). Neither the fact of Doyle's conviction, nor

the contested excerpt from the prosecutor's closing argument, is

material to whether McCambridge used excessive force.
The evidence overwhelmingly supports the jury's

conclusion. McCambridge shot Doyle twice, once in the face and

once in the back. The fact that Doyle was shot in the back is

itself evidence of excessive force. Before shooting the second

shot, McCambridge had to cock the trigger of his gun again before

7
Under our analysis, it matters not whether the jury
thought this was manslaughter due to a heat of passion or to sudden
combat. The defense did not differentiate (nor do the facts lend
themselves to such differentiation) -- the defense's essential
argument was that McCambridge did kill Doyle but he did it in self-
defense when Doyle reached for the gun during their altercation and
McCambridge's response was not excessive. This brings the
excessive force question into play.

-32-
firing. This was not an automatic weapon, and the trigger pull was

very heavy. The forensic evidence was that Doyle had time to draw

in at least a couple of breaths before the second shot, and
McCambridge pulled back from an initial shooting distance of about

six inches to a distance of about three feet for the second shot.

There was also evidence that Doyle's head had been struck with a
billy club, and a billy club with his blood-type on it was found.

Even by McCambridge's account, the drunken Doyle was simultaneously

attempting to drive the van down one of Boston's busiest highways,

and so could not have been free to fully engage in the altercation.

McCambridge himself said he had had at least some success in

pushing Doyle's gun hand down and away, again supporting the

conclusion that McCambridge used more force than was needed.
McCambridge makes an independent argument based on the

other verdict. We reject McCambridge's argument that because the

jury convicted him of the motor vehicle charges, they necessarily
rejected his testimony about the argument and how it developed, and

so the conviction record would have made a difference. The Appeals

Court could reasonably conclude, supported by the expert testimony,

that the jury concluded that once McCambridge shot Doyle, he pushed

Doyle toward the back of the van and attempted to drive from the

passenger's seat or the driver's seat. Either act would suffice

for the motor vehicle charges. See Commonwealth v. Ginnetti, 400

Mass. 181, 508 N.E.2d 603, 605 (1987) (holding that, under

Massachusetts statute criminalizing operating a motor vehicle under

the influence and reckless operation of a motor vehicle, "a person

-33-
. . . operates a motor vehicle by starting its engine or by making

use of the power provided by its engine"). See generally J.

Pearson, Annotation, What Constitutes Driving, Operating, or Being
in Control of Motor Vehicle for Purposes of Driving While

Intoxicated Statute or Ordinance, 93 A.L.R.3d 7, § 6(a) (2002)

(citing cases interpreting "operating" to include manipulation of

controls from passenger's seat). The state trial judge's

instructions made it clear to the jury that an individual need not

be seated in the driver's seat in order to be "operating" a vehicle

within the meaning of the law.8 And there was evidence that

McCambridge was in the driver's seat and sat in that seat after it

was soaked with Doyle's blood.

The overall import of McCambridge's argument as to

prejudice is that the prosecution's closing went to McCambridge's

credibility, and that, in turn, impugned the verdict. For a number

of reasons, we think that the state court's conclusion that this

did not impugn the verdict is not an unreasonable application of

clearly established law.

8
The instructions were as follows:
A person operates a motor vehicle not only while doing
all of the well-known and easily recognized things that
drivers do as they travel along a street or highway but
also in doing any acts which directly tend to set the
vehicle in motion. The law is that a person is operating
a motor vehicle when he manipulates a mechanical or
electrical part of the vehicle like the gear shaft or
ignition which alone or in sequence will set the motor
vehicle in motion.

-34-
 What mattered for McCambridge's defense was not the truth

of the fact of conviction itself, but rather the fact that the two

had argued based on McCambridge's accusing Doyle of having abused
a child, and the subsequent threat supposedly made by Doyle.

McCambridge was allowed to testify as to this. McCambridge argues

that the inevitable result was that he was discredited before the

jury and even before his own attorney -- he posits that his

attorney emphasized manslaughter in his closing, rather than self

defense, because of the appearance that McCambridge had lied about

the conviction story.
We take the analysis in stages. First, under

Massachusetts law, the conviction record would not normally have
been admissible, even as corroborative evidence. See Commonwealth

v. Todd, 408 Mass. 724, 563 N.E.2d 211, 214 (1990) (holding that

exclusion of victim's conviction record was not error in part
because what was important for the defense was the defendant's
belief, not the fact of the convictions); Commonwealth v. Fontes,

396 Mass. 733, 488 N.E.2d 760, 762 (1986) (holding that defendant
may introduce specific instances of victim's violent conduct to
support self-defense theory only if such instances are recent and

known to defendant at the time of the homicide). Since the
conviction was inadmissible, we are left with the prosecution's
statement at closing. To the extent that the prosecutor attempted

to imply that McCambridge was lying about the existence of a

-35-
conviction in his closing argument, an objection could have been

made, but was not.9

Second, even if admissible, proof of the existence of the
conviction was not material to the question of use of excessive

force in self defense. As counsel for McCambridge had just said in

his closing, there was no evidence one way or the other as to the
conviction and this was not the point anyway. As the district

court pointed out, an accusation of child abuse or molestation may

be even more likely to provoke violent rage if it is baseless.

Thus, as defense counsel suggested, it was the accusation of child

abuse, whether true or not, which enraged Doyle.10

Third, the effect of the lack of evidence of a conviction

and the prosecutor's statement was minimal given the wealth of
evidence supporting the conviction. The contested statement in the

closing argument comprises only one short paragraph in a sixteen-

page transcript. The judge instructed the jury that nothing in the
closing argument was to be considered as evidence. And there was

9
The remedy at that point would have been an instruction
to the jury to disregard the prosecutor's accusation. McCambridge's
counsel could have requested this remedy even without the
conviction record, since the court had already indicated that the
question was McCambridge's state of mind. Of course, if the
prosecutor had produced the conviction record as requested by
McCambridge, he probably would not have ventured to accuse
McCambridge of lying on this point, if that, contrary to how the
trial transcript reads, is what he did.
10
Indeed, the conviction, had it been available, might have
undercut the defense, or at least it could be reasonably thought to
do so. Doyle had been convicted of child neglect. Child neglect
is shameful, but "child abuse," the term used by McCambridge, is a
worse accusation. A false and worse accusation against Doyle could
well lead to the conclusion that McCambridge was picking a fight
and so the shooting was premeditated.

-36-
other evidence, particularly physical evidence, that undercuts

McCambridge's credibility as to his assertion that he did no more

than act properly to defend himself -- the blood evidence
indicating that Doyle was shot at least five minutes before the van

flipped; the fact that no witness reported gun flashes, although at

least one witness watched for two minutes before the crash; the
fact that Doyle had been shot more than once and most likely was

also hit over the head with the bloodied billy club, which

McCambridge could not explain; the fact that the weapon was found

in McCambridge's clothes, apparently tucked in there after the

shooting; the trooper's testimony that the van's driver smashed

into the windshield and remained in the front area of the van; the

evidence indicating that Doyle was thrown hard into the passenger
side door and then out the bottom of that door, and was neither

trapped in the driver's seat nor thrown into the windshield; the

blood on the seat of McCambridge's jeans, most likely from the
bloodied driver's seat cushion; and the fact that Doyle was already

gray-blue when the troopers first saw him. The physical evidence,

notably the blood patterns, was simply inconsistent with

McCambridge's theory that the shootings occurred within thirty

seconds. At most, the prosecutor's statement was another stab at

the already damaged credibility of the defendant, who was most

likely viewed as telling some, but not all, of the truth. Jurors

need not believe everything a witness says, nor need they believe

witnesses are not selective in recounting events. Daily life

experience refutes any such belief. The physical evidence, too,

-37-
might well cause a jury to disbelieve McCambridge's convenient

statement that he recalled everything up to the point he fired the

first shot in self-defense, and recalled nothing after that. None
of the arguments advanced by McCambridge "put[s] the whole case in

such a different light as to undermine confidence in the verdict."

Kyle, 514 U.S. at 435. Much less do these arguments lead us to
conclude that the state court's judgment that there was no due

process violation was unreasonable.11
Comparing the facts here with other cases, it is not

unreasonable to conclude the Brady materiality/prejudice standard

is not met. In United States v. Agurs, 427 U.S. 97 (1976), the

defendant also claimed self-defense, and objected to the

prosecution's failure to disclose the victim's criminal record.
Id. at 100-01. The Court held that the non-disclosure "did not

deprive [the defendant] of a fair trial as guaranteed by the Due

Process Clause of the Fifth Amendment." The Court noted
approvingly the trial judge's emphasis on the "incongruity" of a

self-defense claim with "the evidence of [the victim's] multiple
wounds and [the defendant's] unscathed condition"; the fact that

the criminal record would not have contradicted any evidence

offered by the prosecutor; and that the conviction record would be

cumulative of evidence that the victim was armed with a knife at

11
As discussed earlier, the closing argument transcript may
be read as it is written, that the prosecutor said "There is
absolutely evidence of that [conviction and earlier argument],"
indicating that the prosecutor was not accusing McCambridge of
fabricating the conviction, but only of fabricating the self-
defense story. If the transcript is read that way, we still
conclude that the conviction record was immaterial.

-38-
the time of the crime. Id. at 113-14. Moreover, in Agurs, the

trial court and appellate court had assumed the conviction record

would be admissible, id. at 100-02 & n.3, while in this case it was
not.

In United States v. Dumas, this court considered a case

in which the defendant claimed that he had been entrapped into a
drug charge by his prison cellmate, and the prosecution failed to

disclose evidence indicating that the cellmate had been put on

suicide watch, and evidence that would corroborate the defendant's

testimony as to how long the two had shared a cell. 207 F.3d 11,

13-15 (1st Cir. 2000). Although the defense hinged on the

defendant's credibility, we found that neither the corroborative

nor the impeachment evidence was material for Brady purposes. Id.

at 16-17.

This court's decision in United States v. Udechukwu, 11

F.3d 1101 (1st Cir. 1993), does not assist McCambridge, much less
does it show that the state court's decision was an unreasonable

application of federal constitutional law. In Udechukwu, the

government, over objection, withheld evidence about a known drug

trafficker, evidence that was favorable to the defendant. In

closing, the prosecution questioned the existence of the trafficker

when the prosecution knew that he existed. Id. at 1102-05. The

court did not reach the question of whether there was reversible

error in the government's failure to disclose. Rather, the court

found a fatal taint from the prosecutor's "persistent theme in

closing argument suggesting the nonexistence of this information --

-39-
and even the opposite of what the government knew." Id. at 1105.

Here, in contrast, the prosecutor's closing had one line on this

point; it was far from a persistent theme in a closing comprising
sixteen pages of transcript. Here, the underlying information was

not admissible. Here, in contrast to Udechukwu, there was no

objection made to the prosecution's closing argument. And here it
is far less clear that the failure involved government misconduct;

rather, it was sloppiness. The prosecutor here had an incomplete

report on which he relied. The prosecutor did not knowingly

misrepresent to the jury. Udechukwu does not support McCambridge.

On habeas review, McCambridge faces a double hurdle --

showing both that there is a reasonable probability that the jury

would have reached a different conclusion if it had the conviction
record or if the prosecutor had not made the statement in the

closing, and that the state appeals court determination on this

point was unreasonable. Given the evidence here, he cannot clear
either hurdle.

Conclusion

The petition for writ of habeas corpus is denied.

-- Dissent follows. --

-40-
 LIPEZ, Circuit Judge, with whom CYR, Senior Circuit

Judge, joins, dissenting. The Massachusetts Appeals Court rejected

McCambridge's Brady claim on two grounds. See Brady v. Maryland,

373 U.S. 83 (1963). First, it ruled that McCambridge failed to
object, as required, when the prosecutor refused to disclose the

requested exculpatory evidence; namely, evidence of Doyle's

conviction for child abuse. Second, the appeals court ruled that
McCambridge could show no prejudice resulting from the prosecutor's

wrongful suppression of that evidence. As a member of the panel

that first reviewed this case, I concluded that the first ruling of
the appeals court was contrary to clearly established federal law,
and its second ruling constituted an unreasonable application of
federal law. Despite the en banc proceedings and the thoughtful

majority opinion, I continue to hold those views. I therefore
respectfully dissent.

I. Nondisclosure of Brady Material

The Supreme Court held as follows in Brady v. Maryland:

"the suppression by the prosecution of evidence favorable to an
accused . . . violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution." 373 U.S. 83, 87 (1963). The
favorable evidence at issue here is the criminal record of the
victim, Doyle.1 McCambridge testified at trial that Doyle had

1
The Commonwealth does not dispute that the evidence of
Doyle's conviction was favorable to McCambridge.

-41-
become violent when McCambridge called Doyle a derogatory name that

referred to Doyle's conviction for child abuse. McCambridge also

described an incident a few months prior to their automobile
accident when he asked Doyle whether he had been convicted of child

abuse and Doyle threatened to kill McCambridge if he were ever to

mention the topic again. Therefore, Doyle's criminal conviction
related to McCambridge's theory of self-defense because it provided

an explanation for why Doyle might have become violent in the van.

Additionally, McCambridge's testimony regarding Doyle’s earlier

threat afforded a significant evidentiary basis for the jury to

assess McCambridge’s state of mind at the time of the shooting in

determining whether McCambridge had been in reasonable fear of

death or serious bodily injury.
In charging an unlawful killing, the Commonwealth assumed

the burden of proving that McCambridge did not act in self-defense.

See Commonwealth v. Reed, 691 N.E.2d 560, 563 (Mass. 1998). The
jury might not have found McCambridge guilty of any wrongful

killing if it could not reject, beyond a reasonable doubt,
McCambridge's testimony that he reasonably perceived that he was in

imminent danger of death or serious bodily harm. McCambridge's

credibility on this self-defense claim and his perception of

Doyle's alleged actions in the van and his earlier threat were thus

potentially determinative of the verdict.

-42-
 Doyle had, in fact, been convicted of and imprisoned for

child neglect.2 Yet, during trial, the prosecutor represented,

both to defense counsel and the trial judge, that there was no such
conviction on Doyle's official record.

A. Requests, Representations, and Rulings Regarding the Exculpatory
Evidence

The question of Doyle's record arose several times during
the trial. There were three discussions at the bench. The first

sidebar took place on the third day of the trial when Doyle's
brother was testifying for the Commonwealth. Defense counsel

informed the court and the prosecutor that McCambridge's testimony
regarding the altercation in the van would refer to his

understanding that Doyle had been convicted of child abuse.

Defense counsel stated that he saw no reason to question Doyle's

brother about the decedent's conviction unless the prosecutor

intended to take the position that McCambridge was lying. The

prosecutor responded that he had not yet decided whether he would

challenge McCambridge's veracity regarding Doyle's conviction. Due

to the prosecutor's ambivalence in this respect, the defense was

unable to resolve, at this point, whether to question Doyle's

brother about the conviction. Therefore, the court ordered that
the witness be held over for possible later questioning by the

2
Doyle's official record indicates that he was convicted of
child neglect and was sentenced to two years, six months to be
served and the remainder suspended, with the six month period of
incarceration to be followed by a two year period of probation.
McCambridge referred at trial to a conviction for child abuse. The
Commonwealth does not argue that the abuse/neglect distinction has
any bearing on its disclosure obligation.

-43-
defense. During this initial sidebar, the prosecutor was put on

notice that the record of Doyle's conviction tended to exculpate

McCambridge by corroborating McCambridge's anticipated testimony.
The second sidebar on the issue of Doyle's conviction

occurred during defense counsel's direct examination of

McCambridge. The prosecutor objected, on hearsay grounds, to
McCambridge's reference to the conviction when he described the

threat allegedly made by Doyle a month before the killing. The

court overruled the prosecutor's objection on the ground that the

testimony was not being offered for the truth of the conviction,

but rather to establish McCambridge's state of mind with respect to

his fear of being killed by Doyle. The prosecutor replied that he

thought the prejudicial effect of the evidence outweighed its
probative value. The following exchange took place:

THE COURT: Do we have a conviction on
this charge?

DEFENSE: Do I have a certified copy of
the conviction? I do not. But I assert that
it is true, that he was convicted for this
charge. . . . I don't think my brother can say
to your Honor that, in fact, he was not
convicted. I've read the newspaper articles
about it.

COURT: Has anyone checked his probation
record?

PROSECUTOR: It just says -- it doesn't
say what for. I have no idea what it's for.

COURT: Okay. I'll tell them that it's
not being offered for the truth of the matter.3

3
This jury instruction was never given.

-44-
The key event during the second sidebar was the prosecutor's

representation that he had looked at Doyle's record but had found

it to be unclear.
The question of the conviction arose again shortly after

the second sidebar. Despite the court's ruling that the jury would

be told that McCambridge's testimony regarding Doyle's conviction
was not being offered for the truth of the matter, the prosecutor

attempted to raise doubts about the fact of the conviction during

his cross-examination of the defendant.

PROSECUTOR: You said that you had an
argument with Mr. Doyle sometime prior to this
in September and you said that he was involved
in a problem of child molestation; is that
correct?

DEFENDANT: I was told that. . . .
* * *

PROSECUTOR: You know Mr. Doyle is
deceased; isn't that correct, sir?

DEFENDANT: He certainly is.

PROSECUTOR: He can't refute your
allegations right now; can he?

DEFENSE: Objection to that, your Honor.

THE COURT: Sustained.

This line of questioning foreshadowed the prosecutor's reference to

Doyle's conviction in closing argument. It also explains the

concern expressed by defense counsel at the third sidebar, held on

the fourth day of trial just before the defense rested.

During this third and final sidebar, the court again asked the

prosecutor whether he had checked Doyle's record and the defense

-45-
requested that the prosecution produce the record. Defense counsel

also referred to the possibility of recalling Doyle's brother to

establish the conviction, while indicating once again that he would
not do so unless the prosecutor intended to argue that McCambridge

was lying about it:

DEFENSE: He is maligning [the
defendant's] character, you know, as if there
is some evidence in the case that he [the
victim] wasn't really in jail.

PROSECUTOR: He wasn't in jail, Judge.

THE COURT: Did you check his record?

PROSECUTOR: He wasn't in jail, Judge.

THE COURT: Was he convicted?

PROSECUTOR: No. No.

DEFENSE: Do you have his record?
Let's make it part of the --

PROSECUTOR: No. I'm not going to make
it a part. That's your case, sir. . . . So,
as far as I know, he's never been in jail a
day of his life.

* * *

DEFENSE: Your Honor, I don't have
access to his criminal record. . . . So if
he's got a criminal record, this is an
important issue, it seems to me. I would like
it produced so we can all see whether or not
he did have a criminal record and what, if
anything, he was convicted of. I'm concerned
about it. I don't want to make it part of the
case. On the other hand, I don't want to open
it up for argument that I didn't prove that he
had one and, therefore, my guy was lying.

* * *

-46-
 PROSECUTOR: . . . [A]s far as I know,
there is no record that Mr. Doyle had any
convictions.

THE COURT: What do you intend to argue?
PROSECUTOR: . . . I am going to argue
the facts of the case, Judge. That's all I'm
going to argue.

THE COURT: There's inferences the
jurors may want to draw from those facts. Are
you --

PROSECUTOR: But you can't draw an
inference from something where there's no
conviction of a guy. I mean, the guy
[McCambridge] gets up there and says [Doyle's]
done time when I know he hasn't from the
records that I've seen. And, if he's got the
records, he can --

THE COURT: But this was offered really
for state of mind, not for the truth of it,
not as to whether or not he did, in fact, do
any time or anything like that. Therefore, I
don't know if it's appropriate to argue
whether he did or he didn't. I am allowing it
only for the state of mind of the defendant.

PROSECUTOR: Then that's all I'm going
to argue, Judge.

At the third sidebar, defense counsel expressed a willingness to
keep proof of the existence of the conviction out of the case in

compliance with the judge's ruling. However, he also voiced

concern that the prosecutor would use the absence of evidence
confirming the conviction to cast doubt upon McCambridge's

credibility. In addition, defense counsel directly asked the
prosecutor for Doyle's record.
During these sidebar discussions, the prosecutor made two

kinds of statements about Doyle's criminal record. First, the

-47-
prosecutor made qualified statements that Doyle had no criminal

record by saying, "as far as I know." However, at other moments,

the prosecutor more definitively denied that Doyle had been
convicted by answering the court's questions with a simple "No, no"

or saying, "I know he hasn't [been convicted] from the records that

I've seen."
Doyle's criminal record was in the Criminal Offender

Record Information System (CORI) of Massachusetts. A person's CORI

report lists his or her court appearances and convictions, if any.4
The Commonwealth has represented that at trial the prosecutor had

only the first page of Doyle's three-page CORI report; the relevant

conviction appears on the second page.5 The Commonwealth argues

that it did not violate the requirements of Brady for three

reasons. First, it says that the prosecutor disclosed all the

information he had about Doyle's criminal record because the

4
CORI reports are kept by the Criminal History Systems Board
of Massachusetts. The Board is responsible for collecting and
organizing criminal offender record information. See Mass. Gen.
Laws ch. 6, § 168 (2000). The Board is comprised of several law
enforcement officials and associations. Private users of the
system, victims of crime, and experts in personal privacy issues
are also represented. The Board serves as a centralized repository
for criminal record information and may disseminate information
only to criminal justice agencies, agencies required to have access
by statute, and other agencies or individuals "where it has been
determined [by the Board] that the public interest in disseminating
such information to these parties clearly outweighs the interests
in security and privacy." Id. at § 172.
5
The Commonwealth has not contended (nor did the trial court
suggest) that the defense had access to Doyle's CORI report in the
absence of a court order or cooperation by the prosecution.
Massachusetts law permits dissemination of these records only to
agencies and individuals that the Board has certified. See Mass.
Gen. Laws ch. 6, § 172.

-48-
incomplete CORI print-out did not indicate that Doyle had ever been

convicted of child abuse. Second, the Commonwealth contends that

McCambridge should have been more diligent in requesting that the
record be produced. Finally, the Commonwealth argues that

McCambridge was required to object to the prosecutor's

nondisclosure of Doyle's criminal record.6

1. Evidence in the possession of the government

Under well-settled law, a prosecutor's duty to disclose

exculpatory evidence extends beyond his or her personal knowledge

of such evidence. See Kyles v. Whitley, 514 U.S. 419, 437 (1995)
(describing the prosecutor's duty "to learn of any favorable

evidence known to the others acting on the government's behalf in
the case"). This duty exists because the prosecutor is the
representative of the government in proceeding against a defendant

in a criminal case. See Giglio v. United States, 405 U.S. 150, 154

(1972) ("The prosecutor's office is . . . the spokesman for the
Government."). Therefore, a state prosecutor may be held

accountable, in appropriate circumstances, for the nondisclosure of
Brady material in the possession of a state agency without regard

to the prosecutor's personal knowledge of the existence of that

material. See Strickler, 527 U.S. at 282 (discussing nondisclosure

of Brady material "known to the Commonwealth" but apparently not to

the prosecutor); United States v. Agurs, 427 U.S. 97, 111 (1976).

6
In its brief to the en banc court the Commonwealth focuses
on the second and third arguments.

-49-
 While the above cited cases involved evidence known to

the police, their logic applies to the present case as well, since

Doyle’s criminal record was in the CORI database maintained by the
Commonwealth. The prosecutor requested Doyle's criminal record

from the Board, an agency established to coordinate the exchange of

information among law enforcement personnel, including prosecutors
and police officers. Based on the information he received from the

Board, the prosecutor made inaccurate representations to the court

and to the defense that Doyle had no criminal record. Under these

circumstances, the Commonwealth is responsible for the

nondisclosure regardless of the prosecutor's actual personal

knowledge. See Kyles, 514 U.S. at 437-38 (holding that a

prosecutor's ignorance of exculpatory evidence not produced by a
state agency does not insulate the government from responsibility

for a Brady violation). Accordingly, the prosecutor's statement

that Doyle had no criminal record "as far as I know" does not
relieve the Commonwealth of its obligations under Brady and its

progeny because the prosecutor's personal awareness of Doyle's

conviction is irrelevant.

2. Defense obligation to request exculpatory evidence

The Commonwealth argues that defense counsel should have
filed a formal discovery request for Doyle's criminal record.
There is no legal support for this contention. Brady obligations

apply independently of any request by the defense. See Strickler,
527 U.S. at 280 ("[T]he duty to disclose [exculpatory] evidence is

applicable even though there has been no request by the accused.")

-50-
(citing Agurs, 427 U.S. at 107). The prosecutor in this case was

on notice from the time of the first sidebar conference that

evidence substantiating McCambridge's claim that Doyle had a
criminal record would be favorable to McCambridge's theory of self-

defense. There was no need for McCambridge to request that

evidence specifically.
The Commonwealth also asserts that it was not obligated

to disclose evidence of Doyle's conviction because the defense

could have found that evidence through a reasonably diligent

investigation. See, e.g., United States v. Rodriguez, 162 F.3d

135, 147 (1st Cir. 1998) ("The government has no Brady burden when

the necessary facts . . . are readily available to a diligent

defender."). However, as noted, McCambridge could not access the
CORI database without a court order. See Mass. Gen. Laws ch. 6, §

172. Moreover, the Commonwealth's argument about the ready

availability of evidence misses the point in an important way.
This was not a case where the defense simply refused to look for

evidence it knew existed and relied on the prosecution to disclose
that evidence. Rather, the prosecutor misrepresented, to both

defense counsel and the court, that the exculpatory evidence did

not exist. Defense counsel was entitled to rely on that

representation. See Strickler, 527 U.S. at 283 n.23. Under these

circumstances, McCambridge was not obligated to inquire further.

The Commonwealth argued before the panel that the

prosecutor's statements that Doyle had no criminal record "as far

as I know" should have alerted defense counsel to the possibility

-51-
that such a record did exist but was simply not personally known to

the prosecutor. Because the prosecutor expressed this uncertainty,

the Commonwealth asserted, McCambridge and his counsel should have
been more diligent in confirming whether the prosecutor's qualified

statements were, in fact, true. The Commonwealth cites no

authority for this argument, and I have found none. Under well-
settled law, as I have explained, Brady obligations apply to a

prosecutor's conduct even when the defense has not sought discovery

of the exculpatory evidence. See Strickler, 527 U.S. at 280;

Agurs, 427 U.S. at 107. Moreover, McCambridge's counsel reasonably

relied upon the prosecutor's representations that Doyle had never

been convicted, see Strickler, 527 U.S. at 283 n.23, and because

the prosecutor was acting in his capacity as representative for the
government, see Kyles, 514 U.S. at 437, defense counsel was also

reasonable in concluding that the prosecutor's denials indicated

that such evidence of a conviction did not exist.

3. Requirement to object to the nondisclosure of
exculpatory evidence

Finally, the Commonwealth argues that McCambridge was

required to object to the prosecutor's inaccurate representation

about Doyle's record, despite Strickler's holding that "defense

counsel may reasonably rely" on a prosecutor's representation that

she has complied fully with Brady, Strickler, 527 U.S. at 283 n.23,

thus rendering unnecessary an objection to the nondisclosure of
that evidence. In Strickler, the prosecutor maintained an "open

file" policy, meaning that "his entire prosecution file was made

-52-
available to the defense." Id. at 283 n.22. While it is not clear

from the record whether the Commonwealth maintained an open file

policy in this case, the prosecutor's statements to defense counsel
and to the court that Doyle had no criminal record constitute

essentially the same representation at issue in Strickler: that the

prosecution had fulfilled its constitutional duty under Brady.
Under such circumstances, defense counsel is not required to

object. Indeed, the Supreme Court rejected such a requirement in

Strickler:

"The presumption, well established by
tradition and experience, that prosecutors
have fully discharged their official duties,
is inconsistent with the novel suggestion that
conscientious defense counsel have a
procedural obligation to assert constitutional
error on the basis of mere suspicion that some
prosecutorial misstep may have occurred."

Strickler, 527 U.S. at 286-87 (citation and internal quotation

marks omitted).

The Commonwealth has argued, again, that the prosecutor's

occasional use of the words "as far as I know" excuses its failure

to disclose the exculpatory evidence because such equivocal
language should have indicated to the defense that a specific

objection to the nondisclosure was necessary. This argument is

unpersuasive for the same reasons it was unpersuasive in the

context of McCambridge's failure to pursue a more thorough

investigation of Doyle's criminal record: the Commonwealth cannot

escape its Brady obligations by qualifying its nondisclosure of

exculpatory evidence and then shifting its disclosure burden to

-53-
defense counsel. Moreover, the potential mischief invited by the

Commonwealth's argument provides strong reason for rejecting it.

B. The state court decision

McCambridge argued to the Massachusetts Appeals Court

that the prosecution did not fulfill its disclosure obligations

under Brady. For example, he stated in his opening brief:

The suppression of material evidence
favorable to the accused and requested by him
violates the due process clause of the Fifth
Amendment. Brady v. Maryland, 373 U.S. 83, 87
(1963). In the case at bar, because the trial
court refused to require the Commonwealth to
produce Doyle's criminal record, the defendant
cannot prove that exculpatory evidence was
withheld. The defendant did everything he
could to preserve this issue. Compare this
case with Commonwealth v. O'Brien, 419 Mass.
470, 477 (1995). Thus, this Court should
order the Commonwealth to produce Doyle's
criminal record so that an appellate decision
can be made. In the alternative, the case
should be remanded to the Superior Court for
production of the document at issue.
If Doyle had a criminal record as
described by the defendant at trial, then the
withholding of that information and the
misleading of the defense was intentional and
prejudicial. See Commonwealth v. Tucceri, 412
Mass. 401 (1992). A new trial would be
required.
As this passage from McCambridge's brief reveals, he articulated a

claim under Brady, with appropriate citations, and argued that the

prosecutor's nondisclosure of Doyle's record -- if the record
indeed existed -- prejudiced him.

The prosecution finally disclosed Doyle's criminal record
after McCambridge filed his brief to the appeals court. Following

-54-
the Commonwealth’s belated disclosure, McCambridge refined his

Brady argument in his reply brief:

In United States v. Bagley, 473 U.S.
667 (1985), the Supreme Court recognized that
an incomplete response to a specific request
for disclosure not only deprives the defense
of the specific evidence, but also suggests to
the defense that such evidence does not exist.
The defense's reliance on such a misleading
representation can result in important changes
in trial strategy. In the case at bar, the
defendant was specifically misinformed about
Doyle's criminal record. The defendant then
gave up his strategy of attempting to elicit
information about that record from Doyle's
brother or the Clerk of the Norfolk Superior
Court. The prosecutor fully exploited his
misrepresentation in closing argument.

The state constitutional and/or common
law standard for a Brady violation does
consider the issue of bad faith. See,
Commonwealth v. Tucceri, 412 Mass. 401 (1992).
Where bad faith has been demonstrated, and the
withheld evidence might have affected the
outcome of the trial, the defendant is
entitled to a new trial. In the absence of
bad faith, a new trial is necessary if the
withheld evidence would have been a real
factor in the jury's deliberation. In the
case at bar, the defendant's truthfulness
about the circumstances of his confrontation
with Doyle was the central issue in the case.
The blocking of the Commonwealth's claim, that
the so-called argument about Doyle's child
abuse record was only the defendant's attempt
to assassinate Doyle's reputation, would have
been a real factor in the jury's deliberation,
and probably would have tipped the scales in
favor of the defendant.

Again, McCambridge identified the proper legal authority for his

Brady claim and explained why he was prejudiced by the prosecutor's

failure to fulfill his disclosure obligations.

McCambridge's Brady claim was thus fully presented to the

Massachussets Appeals Court. In its opinion affirming

-55-
McCambridge's conviction and sentence, the appeals court addressed

the issue of Doyle's record only briefly: "While the defendant

pressed for the introduction of the victim's criminal record at
trial, he did not object when the judge did not order its

production or request that the record be marked for identification.

He cannot now be heard to complain that the judge failed to do so
at the sentencing stage." McCambridge, 690 N.E.2d at 475. The

court did not seem to recognize the Brady implications of Doyle's

criminal record - despite McCambridge's argument on the issue in

both his opening and reply briefs.

Under the new standard for federal habeas review, we must

examine the state court determination of McCambridge's Brady claim

to determine whether it is contrary to or an unreasonable
application of clearly established federal law. See 28 U.S.C. §

2254(d)(1). The Supreme Court has said the following with respect

to the "contrary to" prong of § 2254(d)(1):
The text of § 2254(d)(1) therefore suggests
that the state court's decision must be
substantially different from the relevant
precedent of this Court. . . . A state-court
decision will certainly be contrary to our
clearly established precedent if the state
court applies a rule that contradicts the
governing law set forth in our cases. . . . A
state-court decision will also be contrary to
this Court's clearly established precedent if
the state court confronts a set of facts that
are materially indistinguishable from a
decision of this Court and nevertheless
arrives at a result different from our
precedent.

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Massachusetts

Appeals Court did not explicitly identify a legal rule in finding

-56-
that McCambridge could not "now be heard to complain" about the

nonproduction of Doyle's record because he did not object when the

trial court judge failed to order its production. McCambridge, 690
N.E.2d at 475. However, implicit in this reasoning is a legal rule

that would require a criminal defendant to object to the

prosecution's nondisclosure of exculpatory evidence where the
prosecution has represented that such evidence does not exist.

Strickler, however, held that defense counsel is not required to

object to the nondisclosure of exculpatory evidence where the

prosecutor has represented that she has discharged fully her Brady

obligations. Strickler, 527 U.S. at 289. Accordingly, the opinion

of the Massachusetts Appeals Court denying McCambridge's Brady

claim, in part, because he failed to object at trial is contrary to
clearly established federal law as determined by the Supreme Court.

C. Adequate and Independent State Ground

The Commonwealth further maintains that our review of
McCambridge's habeas petition is precluded because there is an

adequate and independent state ground for the state appeals court
decision. Federal courts "will not review a question of federal
law decided by a state court if the decision of that court rests on

a state law ground that is independent of the federal question and
adequate to support the judgment." Coleman v. Thompson, 501 U.S.

722, 729 (1991). Noncompliance with a state procedural rule may

preclude federal review: "The [adequate and independent state
ground] doctrine applies to bar federal habeas when a state court

declined to address a prisoner's federal claims because the

-57-
prisoner had failed to meet a state procedural requirement. In

these cases, the state judgment rests on independent and adequate

state procedural grounds." Id. at 729-30. In this case, the
Commonwealth contends that the appeals court's reliance on the

Massachusetts rule requiring contemporaneous objections provides

such an adequate and independent state ground.
I have already indicated that I would reject the

Commonwealth's argument that McCambridge had an obligation to

object to the government's failure to disclose Brady material. As

I have explained, there is no such obligation under federal law.

Indeed, the Commonwealth has not identified any authority

supporting its assertion that McCambridge was required to object.

My own review of Massachusetts caselaw has unearthed no case --
except for the decision of the appeals court in this case --

requiring an objection to the inaccurate representation by a

prosecutor that exculpatory evidence sought by the defense has been
disclosed. See, e.g., Commonwealth v. Hill, 739 N.E.2d 670 (Mass.

2000); Commonwealth v. Tucceri, 589 N.E.2d 1216, 1224 (Mass. 1992).

For a state procedural rule to constitute an adequate and

independent state ground barring federal habeas review, that rule

must be consistently enforced in the state courts. See Moore v.

Ponte, 186 F.3d 26, 32-33 (1st Cir. 1999). Even if a Massachusetts

procedural rule requiring an objection to the nondisclosure of

exculpatory evidence had been consistently enforced, such a rule

would be unconstitutional under Strickler. Accordingly, there is

no adequate and independent state ground supporting the decision of

-58-
the Massachusetts Appeals Court that precludes our review of

McCambridge's claim.

II. Prejudice

The conclusion that the ruling by the appeals court

requiring an objection to the prosecutor's nondisclosure is

contrary to clearly established federal law does not end the Brady

inquiry. Brady established both a rule of conduct - that

prosecutors must disclose exculpatory evidence in the possession

and control of the government - and a standard of prejudice that

petitioners must meet in order to obtain relief for a prosecutor's
failure to comply with that rule. See Strickler, 527 U.S. 281-82

(noting elements of a Brady claim). Accordingly, it is also
necessary to assess whether the appeals court erred in its
determination of prejudice under Brady, and if so, whether that

erroneous determination constituted an unreasonable application of
clearly established federal law.
To prevail on his Brady claim, McCambridge must show that

he was prejudiced by the prosecutor's failure to disclose the
evidence of Doyle's criminal record. More specifically, he must
demonstrate "a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have
been different." United States v. Bagley, 473 U.S. 667, 682

(1985). "A 'reasonable probability' is a probability sufficient to

undermine confidence in the outcome." Id. "The question is not
whether the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence he

-59-
received a fair trial, understood as a trial resulting in a verdict

worthy of confidence." Strickler, 527 U.S. at 289-90. See also

United States v. Josleyn, 206 F.3d 144, 152 (1st Cir. 2000). That
there was sufficient evidence on which to convict McCambridge does

not establish that his trial was fair. See Kyles, 514 U.S. at 435.

It seems improbable that, standing by itself,
McCambridge's inability to corroborate his testimony through the

introduction of Doyle's conviction would have had an effect on the

jury's verdict. However, as McCambridge has argued consistently,

the prosecutor's summation, exploiting his misleading disclosure

about Doyle's conviction, seriously prejudiced his case.

Immediately after the third sidebar, the defense rested

and the parties made their closing arguments,7 the pertinent parts
of which follow:

DEFENSE:
Now, I want to talk about one other
thing that's not evidence in this case. Mr.
McCambridge told you on the stand the reason
that he and Mr. Doyle got into the fight,
besides that they were both drinking and
probably neither one thinking with great
clarity, there had been an incident a couple
of months previously where Mr. McCambridge
says he had been told something about Mr.
Doyle and confronted him with it.
The Judge admitted that evidence as
evidence of Mr. McCambridge's state of mind;
in other words, it's not evidence that Mr.
Doyle ever did anything. There is no evidence
in this case that Mr. Doyle ever molested or
abused any child. . . . There is also no
evidence in this case that he did it. There
is simply no evidence in this case one way or

7
Massachusetts Rule of Criminal Procedure 24(a)(1) provides
that "the defendant shall present his closing argument first."

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 the other. You don't know as you sit here
whether what transpired, what Mr. McCambridge
says transpired between the two of them, has
any backing in reality or not. There is no
evidence. There is no evidence that he did
it. There is no evidence that he didn't do
it. It was admitted for a different purpose,
which was the state of mind.
Now, you have to decide whether or not
something like that could cause that explosion
in the car, that eruption of bad blood when
people had been drinking. Mr. McCambridge
told you that he made some comment to this
person that enraged him, and he had been
threatened before.

* * *

PROSECUTION:
Does the defendant have something for
you to believe when he gets up there and says,
oh, yeah, I had an argument with Richard Doyle
because of child molestation? There is
absolutely evidence of that.8 Was that put in
there to tell you what his frame of mind was?
No. That was his third shot at the victim
from the stand, assassinating his reputation
with no evidence. That's what that was for, I
suggest to you, not to show state of mind.

In compliance with the ruling of the judge, the defense argued in
its summation that whether or not Doyle had in fact been convicted

of child abuse was not at issue in the case, the testimony about
Doyle's conviction having been admitted only to establish

McCambridge's state of mind. In marked contrast, the prosecutor

ignored the court's ruling, as well as his representation that he

8
I have reproduced the prosecutor's argument as it appears in
the transcript of the trial as set forth in the record. Given the
thrust of the prosecutor's argument, I assume that either the court
reporter or the prosecutor unintentionally omitted the word "no"
before the word "evidence" in this sentence. Although the majority
suggests that the transcript should be read as written, the
Commonwealth conceded in its brief to the panel that the prosecutor
either said or intended to say "absolutely no evidence."

-61-
would abide by that ruling, and used the absence of the exculpatory

evidence he had failed to produce to impugn McCambridge's

credibility. For reasons that are not clear from the record,
defense counsel did not object to the prosecutor's closing

argument. Normally, such an omission by defense counsel would

warrant requiring McCambridge to show cause for his failure to
object and prejudice from the prosecutor's closing argument.

However, I conclude that the Commonwealth failed to raise the issue

of McCambridge's procedural default below and has thus waived that

argument.

A. Waiver of Waiver

Massachusetts has a "routinely enforced, consistently
applied contemporaneous objection rule" regarding improper closing

argument. Burks v. DuBois, 55 F.3d 712, 716 (1st Cir. 1995).

Absent a timely objection, Massachusetts courts will not review
appellate claims of improper summation unless cause and prejudice

are demonstrated, except to ensure that a miscarriage of justice
does not occur. See Commonwealth v. Stote, 739 N.E.2d 261, 268

(Mass. 2000). When the Massachusetts courts apply the procedural
default rule, federal review of an improper summation claim is

similarly foreclosed because failure to observe state procedural

rules can constitute an adequate and independent ground for the

state court decision. Palmariello v. Superintendent of M.C.I.

Norfolk, 873 F.2d 491, 493 (1st Cir. 1989).

The Commonwealth did not argue in the federal district

court that McCambridge procedurally defaulted by not objecting to

-62-
the prosecutor's closing argument.9 Indeed, even after receiving

three extensions of time to file a brief in the federal district

court, the Commonwealth failed to file a timely brief.10 "[T]his
circuit religiously follows the rule that issues not presented to

the district court cannot be raised on appeal." Ouimette v. Moran,

942 F.2d 1, 12 (1st Cir. 1991).
Moreover, litigants in federal habeas proceedings arising

from state court convictions are generally required to raise all

issues in the state courts. See Trest, 522 U.S. at 89; Coleman,

501 U.S. at 732 (noting that the independent and adequate state

ground doctrine "ensures that the States' interest in correcting

their own mistakes is respected"). In this case, the Commonwealth

9
In its brief to the panel, the Commonwealth, for the first
time, did note in passing that there was no objection to its
summation, but it did not mention the possibility of a procedural
bar to federal habeas review. The summation issue was disposed of
in one paragraph. "There is also no merit to the petitioner's
contention that he was prejudiced by the prosecutor's reference
during closing argument to the fact that the victim's criminal
record was not in evidence. Defense counsel, during his closing,
had already expressly conceded this point by stating: 'There's no
evidence in this case that Mr. Doyle ever molested or abused any
child.' In any event, the petitioner did not object to the
prosecutor's closing and the judge instructed the jury that
counsel's arguments were not evidence." This statement is patently
insufficient to raise an adequate and independent state ground
argument with respect to the failure of the defendant to object to
the Commonwealth’s closing argument. See United States v. Fernandez,
145 F.3d 59, 63 (1st Cir. 1998) (issues mentioned in perfunctory
manner, unaccompanied by argument, are deemed waived); Fed. R. App.
P. 28(b). Nor can the Commonwealth raise the issue for the first
time before the en banc court. See Kale v. Combined Ins. Co., 924
F.2d 1161, 1169 (1st Cir. 1991) (stating that a party cannot raise
an issue for the first time on rehearing en banc).
10
Despite not receiving permission to file a brief after the
expiration of the final deadline, the Commonwealth did so. We
assume it was not considered by the district court.

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did not argue procedural default in any state proceedings.

"[P]rocedural default is normally a defense that the State is

obligated to raise and preserve if it is not to lose the right to
assert the defense thereafter." Trest, 522 U.S. at 89 (internal

quotation marks omitted); see also Commonwealth v. LaBriola, 722

N.E.2d 13, 14 n.1 (Mass. 2000). We should enforce that rule here.

B. State court decision

Next I examine the opinion of the Massachusetts Appeals

Court to determine whether its conclusion that McCambridge was not

prejudiced by the nondisclosure of the exculpatory evidence is
contrary to or an unreasonable application of clearly established

federal law. See 28 U.S.C. § 2254(d)(1). On the prejudice issue,
the appeals court said the following:
In any event, assuming without deciding that
the prosecutor should have produced the
victim's record, there was no prejudice to the
defendant because he was aware of the victim's
record and was prepared to offer such evidence
at trial. Moreover, by convicting the
defendant of manslaughter, the jury obviously
credited the defendant's testimony that the
struggle in the van was precipitated by the
defendant's remark about this offense to
Doyle. See Commonwealth v. Tucceri, 412 Mass.
401, 412-414, 589 N.E.2d 1216 (1992).

I accept the majority's conclusion that the Massachusetts
Appeals Court applied a standard of prejudice that is consistent

with Brady, and that its decision was thus not contrary to federal

law. However, I would hold that the state court's conclusion on
prejudice is an unreasonable application of the Brady prejudice

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standard. To explain, I describe the evidence presented at

McCambridge's trial.

1. The evidence

The prosecution alleged at trial that McCambridge shot

and killed Doyle shortly after the two men left a bar in Cambridge

at 1 a.m., and that McCambridge was driving, with Doyle's body in

the back of the van, when a state trooper tried to stop the van.

The prosecution further alleged that the van crashed when

McCambridge reached for a gun with which he intended to shoot the

police officer attempting to apprehend him. However, the evidence
the Commonwealth presented at trial to prove this theory was

conflicting and inconclusive.

a. Time of death

The doctor who performed the autopsy on Doyle testified
that Doyle had last consumed alcohol approximately one and one half
hours before his death. It is undisputed that Doyle and

McCambridge left the bar when it closed at 1 a.m. and that the
accident occurred at about 2 a.m. Thus, if credited by the jury,
the doctor's uncontradicted opinion tended to diminish any
possibility that Doyle's death occurred much before the crash

occurred, let alone just after the two men left the bar at 1 a.m.

Another prosecution witness, an EMT who responded to the accident,

testified that Doyle's skin was still warm when his body was found

pinned beneath the van, thus tending to establish that Doyle died

not long before the accident, particularly in light of the

uncontradicted testimony that it was cold that night.

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 b. The weapons

The evidence was also inconclusive with respect to

McCambridge's ownership of and possession of a gun. The

prosecution tried and failed to establish that McCambridge was

carrying a gun in the waistband of his pants before he was in the

van. The bartender testified that McCambridge became angry when

the bartender started to close up the bar. He said that

McCambridge stood up and brushed up against him, chest to chest,

while pushing his coat back. When asked by the prosecutor whether

he saw McCambridge "reach for anything," the bartender said no.
The bartender also testified that McCambridge did not seem to be

angry with Doyle when the two men left the bar.
A firearms officer testified that McCambridge shot Doyle
twice with a derringer. When emergency personnel were removing

McCambridge's jacket after the accident, the derringer fell to the
floor of the ambulance. However, the firearms officer did not
trace the derringer to establish who owned it. Nor did he attempt

to identify the owner of the 9 mm. pistol with which Doyle
allegedly had threatened McCambridge. Another Massachussetts
police officer testified that a box of ammunition fitting one of

the two guns was found in the van. However, the box of ammunition,
labeled "Big Al's Gun Shop," was never introduced into evidence and
the police officer had no other information about it.

c. Location of the bodies

In an effort to bolster its theory that McCambridge had

killed Doyle up to an hour before the accident, the prosecution

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attempted to establish that McCambridge was driving when the van

crashed. Forensic witnesses testified that blood on the seat of

McCambridge's pants was consistent with Doyle's blood, supporting
an inference that McCambridge sat in the driver's seat at some

point. However, there was also evidence that there was not enough

blood on his pants to suggest that he sat there for long.
There was other conflicting evidence about the probable

location of McCambridge's body and Doyle's body at the time of the

accident. A prosecution witness testified that: (1) the passenger-

side window was broken; (2) glass from the passenger-side window

was found on McCambridge's collar and under his jacket but none was

found on Doyle; and (3) if someone had been sitting in the

passenger seat at the time of impact, he would have been thrown to
the right into the windshield or the passenger-door window. The

prosecution offered no explanation as to how or why, under its

theory of the case, McCambridge might have been in the passenger
seat at the time of the impact.

The defense tried to show that it was not clear where the

two bodies had been located prior to the crash and roll-over. The

defense accident reconstructionist testified that the driver of the

van could have been thrown between the bucket seats and out of the

side door when the van was lifted into the air. The evidence was

undisputed that after the accident the sliding door on the

passenger side of the van was off its bottom hinges. The witnesses

were in agreement that Doyle had been thrown from the car through

this doorway. Because the fabric of Doyle’s sweater had actually

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fused to the van, one investigator testified that Doyle's ejection

must have been the result of a major impact that generated the heat

necessary to accomplish the fusion. This evidence indicated that
Doyle could have been driving at the time of the crash, and did not

establish whether Doyle, if he had not been driving, was placed in

the back of the van by McCambridge prior to the accident or was
thrown there upon impact.

Police officers, emergency medical personnel and

civilians agreed that McCambridge was found wedged in the driver's

seat area. Yet blood and hair sample tests established, without

contradiction, that McCambridge's head hit the passenger side of

the windshield during the crash. Uncontradicted testimony also

established that McCambridge had a gash in his head and was covered
with blood when he was found.

d. The police investigation and handling of evidence

There were other questions left unanswered by the
investigators. The accident reconstructionist for the state police

had no photographs of the tire marks on the road and could not
explain the absence of such important and apparently routine
evidence.11 He also admitted during cross-examination that he had

made mistakes in drawing the accident scene; he was unsure what one
line was intended to indicate and a second line purporting to
represent the track of one tire in fact traced the track of a

11
The defense expert testified that it was difficult to
analyze the accident without a picture of the road marks and that
it was standard procedure to carefully record such marks.

-68-
different tire. Like the forensic chemist, he became confused

regarding the physical principles governing the direction the

bodies would have moved when the van hit the barrier.
Another state investigator failed to document where

things were located before they were removed from the van by the

police. She was unaware of any inventory that might have been
made of the "heaps of stuff" that had been in the van, which

included trash bags, clothing, newspapers and debris. She also

stated that the nine millimeter gun, which was loaded and cocked

and allegedly used to threaten McCambridge, was found under a great

deal of debris. Although the prosecution alleged that the van was

weaving because McCambridge was reaching for this same gun in order

to shoot the trooper who was trying to pull him over, there was no
testimony as to whether the debris would have been on top of the

gun before the crash or whether the gun itself would have moved

during the crash. Moreover, the investigator could not say whether
bloodstains of Doyle's blood type found in the back of the van were

recent or even whether they had been made by the police as they

removed items from the van. Some of the items that had fallen onto

the road during the crash had been thrown back into the van before

it was towed away, thus risking contamination and making it harder

yet to reconstruct the accident.

e. Self-Defense

In support of his self-defense claim, McCambridge
testified that Doyle became aggressive after McCambridge called him

a name referring to his conviction for child abuse. He also stated

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that he remembered nothing after the first shot he fired at Doyle

until three to four days later when he was in the hospital.

However, a medical expert, called by the defense, explained that a
person might become more aggressive after receiving the type of

wound Doyle received when hit by the first bullet. Dismissing

McCambridge's amnesia as "convenient," the prosecutor called no
medical experts to challenge the inference that such a memory loss

could be attributed both to shock and to the serious head wound

McCambridge sustained in the accident. Other than McCambridge's

own testimony, the record is devoid of evidence bearing on whether

McCambridge was in reasonable fear of serious bodily injury or

death when he shot Doyle.

2. The verdict

The jury began deliberating at approximately 1:30 p.m.

and returned its verdict the afternoon of the following day.12 At
the end of the first day of its deliberations, the jury requested
clarification on (1) unlawful killing, (2) malice aforethought, (3)

burden of proof and (4) reasonable doubt. The following day, the
jury asked the trial judge to clarify the elements of the
manslaughter charge. That afternoon, the jury returned a verdict

finding McCambridge guilty of the crime of manslaughter, unlawful
possession of a firearm, operating under the influence, and
operating to endanger.

12
It is unclear from the record at what time the jury was
dismissed for the evening on the first day, at what time it
reconvened on the second day, or at what time it rendered its
verdict on the afternoon of the second day.

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 In returning a verdict of manslaughter, the jury rejected

the prosecutor's theory that McCambridge acted with either

premeditation or malice aforethought. Its rejection of the murder
charge left the jury with only two options on the charge of

unlawful killing: manslaughter or acquittal. The prosecutor's

insinuation that McCambridge fabricated his testimony about Doyle’s
conviction to besmirch Doyle's reputation was the last thing the

jury heard from either counsel. This improper undermining of

McCambridge's credibility on the determinative question of self-

defense, and perhaps of his credibility in general, may well have

tipped the balance in favor of a manslaughter conviction. Thus, I

conclude that there is a reasonable probability that the outcome of

McCambridge's trial would have been different if the existence of
Doyle's conviction had been disclosed and the prosecutor had not

suggested in closing argument that McCambridge was fabricating

Doyle's conviction.
The majority disagrees with this prejudice analysis. To

convict McCambridge of manslaughter, the majority reasons, "the

jury must have found that [he] was provoked in some way, resulting

in a sudden heat of passion." The majority observes that "[t]he

only evidence presented at trial regarding any possible provocation

for the altercation was McCambridge's testimony that Doyle

threatened him with the nine millimeter Smith & Wesson after

McCambridge had called him a child abuser and that a conflict

ensued." Thus, for the majority, "the jury necessarily found that

McCambridge, in his self defense, used at least excessive force

-71-
against Doyle (or . . . turned into the attacker)." The majority

concludes that "the jury accepted McCambridge's story about Doyle's

anger at being called a child abuser. Nothing could be added to
this by having the fact of the child neglect conviction established

or admitted into evidence."

In my view, this reasoning is unduly speculative. It
assumes that if the jury convicted McCambridge of manslaughter, it

must have believed his account of how the altercation with Doyle

began. However, as the amicus explains:

The jury could have disbelieved petitioner
almost entirely, thus rejecting his self-
defense testimony, and still found him guilty
of manslaughter rather than murder. There was
evidence outside petitioner's testimony that a
struggle was occurring inside the van while
driving on the highway shortly before the
accident. Drivers saw the van rocking back
and forth on the highway, and forensic
evidence indicated that Doyle was shot shortly
before the crash. There was independent
evidence supporting petitioner's testimony
that Doyle had pointed a cocked gun at him.
There was also evidence that both petitioner
and Doyle had been drinking. The court
instructed the jury that it could find
manslaughter if it found that petitioner had
killed Doyle "upon sudden combat." The court
also instructed that what "distinguished
murder from manslaughter was the absence of
malice aforethought." The jury could simply
have concluded that the government failed to
prove its case on the critical issue of intent
given the paucity of the evidence supporting
its theory of how and when petitioner killed
Doyle.

In other words, the jury could have found that the circumstantial

evidence supported the conclusion that McCambridge killed Doyle

upon sudden combat or in the heat of passion -- for whatever reason

-- but that it was not sufficient to establish malice

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aforethought.13 There is simply no basis for concluding that the

jury must have believed McCambridge's account of what sparked the

incident.
Nor is the majority opinion convincing when it declares

that "[n]either the fact of Doyle's conviction, nor the contested

excerpt from the prosecutor's closing argument, is material to
whether McCambridge used excessive force." This argument assumes

that the jury found that McCambridge acted in self-defense but with

excessive force. Yet, again, the jury could have disbelieved his

self-defense claim, but convicted him of manslaughter because the

circumstantial evidence supported a finding of "sudden combat" (but

failed to establish malice aforethought). If the jury had believed

McCambridge's story about the origins of the altercation, it could
have found that he acted in self-defense without excessive force,

and thereby was entitled to an acquittal. It is simply wrong to

say that the jury must have found that McCambridge used excessive

force in self defense, when we do not know if the jury accepted his

claim that he acted in self-defense in the first place.
The majority is also inconsistent in its assessment of

the effect on McCambridge's credibility of the prosecutor's

13
As the majority points out, the jury was instructed as
follows:

Manslaughter is an unlawful, intentional killing
resulting from a sudden transport of the passions or heat
of blood when there is no time to deliberate and when
such passion or heat of blood is produced by adequate or
reasonable provocation and without malice or upon sudden
combat . . . .

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references in closing argument to McCambridge's unsupported claim

about Doyle's conviction for child abuse. On the one hand, the

majority asserts that "[a]t most the prosecutor's statement was
another stab at the already damaged credibility of the defendant,"

suggesting that McCambridge, generally speaking, was not a credible

witness. Yet the majority also asserts that the jury must have
believed McCambridge's testimony that he fired on Doyle in self-

defense, in support of its theory that he was convicted of

manslaughter because the jury decided he used excessive force in

his self-defense. This seems to be a rather selective view of

McCambridge's credibility.

My own view is that McCambridge's credibility was

impugned in the eyes of the jury on the critical issue of self-
defense, and there is at least a reasonable probability, the Brady

prejudice standard, that this damage was attributable to the

prosecutor's unfair closing argument. That view draws support from
the jury's conviction of McCambridge on two of the three motor

vehicle offenses. These convictions indicate unmistakably that
they concluded that McCambridge was driving the van at some point,

a determination that required rejecting substantial parts of his

account of the altercation with Doyle, the shooting, and the

accident. The majority suggests that "[t]he Appeals Court could

reasonably conclude . . . that once McCambridge shot Doyle, he

pushed Doyle toward the back of the van and attempted to drive from

the passenger's seat or the driver's seat." It is indeed possible

that the jury reasoned as the majority describes, but a more

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straightforward explanation is that the jury simply disbelieved

McCambridge's testimony that Doyle was driving the van when he was

shot.
My conclusion that McCambridge was prejudiced by the

prosecutor's misconduct is consistent with our decision in United

States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993), where we
considered the prejudicial effect of a prosecutor's closing

argument questioning the existence of exculpatory evidence the

defendant claimed existed but which the prosecution failed to

disclose. The defendant in that case, charged with smuggling

illegal drugs into the United States from Aruba, presented a

defense of duress. She testified that a man named Michael Mouma

had threatened to harm her children if she did not transport drugs
for him. Defense counsel attempted to obtain evidence from the

prosecution to corroborate the defendant's testimony regarding

Mouma and the circumstances under which she had agreed to smuggle
the drugs. Although the government had information that Mouma did

exist, was in Aruba, and had been a drug trafficker, that

exculpatory information was never disclosed to the defense. The

prosecutor then used the absence of information about Mouma to

challenge Udechukwu's credibility in closing argument. In

Udechukwu, as here, the defendant asserted on direct appeal14 that

14
We considered Udechukwu's Brady claim on direct appeal,
rather than collateral review. For purposes of evaluating
McCambridge's Brady claim, Udechukwu applies; the only difference
in our standard of review for the two cases is that we must take
the additional step here of determining that the appeals court
decision affirming McCambridge's conviction is contrary to or an

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the prosecution's Brady violation was magnified by the improper

summation. We stated:

The inferences and the direct challenge to the
existence of a source named Michael, however,
when the prosecution had unearthed evidence
that he existed and was a prominent dealer in
narcotics, is indefensible. Here we find a
kind of double-acting prosecutorial error: a
failure to communicate salient information,
which, under [Brady and Giglio] should be
disclosed to the defense, and a deliberate
insinuation that the truth is to the contrary.

Id. at 1106.

As in the instant case, there was no question in

Udechukwu that the defendant committed the acts alleged by the

prosecution. Udechukwu's defense of duress, like McCambridge's
claim of self-defense, depended entirely on her credibility. In

Udechukwu, the evidence not disclosed by the prosecution only

partly substantiated her defense because the fact that Mouma
existed, lived in Aruba, and had been involved in illegal narcotics

did not establish that Mouma ever threatened Udechukwu or asked her

to smuggle drugs. Nevertheless, we reversed Udechukwu's conviction

and remanded for a new trial because we concluded that she was
prejudiced by the prosecutor's improper attack on the crucial issue

of her credibility: "Whether the government's failure to disclose

this credibility-strengthening information could be said to be

reversible error, we need not decide. We have no doubt, however,

that the prosecutor's persistent theme in closing argument

suggesting the nonexistence of this information . . . did fatally

unreasonable application of clearly established federal law.

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taint the trial." Id. at 1105.15 Thus, I conclude that the

prosecutor's insinuation during closing argument that McCambridge

had lied about Doyle's criminal record likewise tainted the
McCambridge trial in the relevant Brady sense.16 It deprived

McCambridge of "a trial resulting in a verdict worthy of

confidence."17 Strickler, 527 U.S. at 289-90.

Nevertheless, my conclusion that McCambridge was

prejudiced by the prosecution's failure to disclose Doyle's

conviction would not be sufficient to warrant the issuance of a

writ of habeas corpus. I must also conclude that the determination

of the appeals court on this issue constituted an unreasonable

application of clearly established federal law as articulated by

15
Massachusetts law is consistent with our own in this regard.
In Commonwealth v. Collins, 434 N.E.2d 964, 969 (Mass. 1982), the
Supreme Judicial Court stated: "When the failure to disclose is
coupled with the blatant misrepresentation made by the prosecutor
in his closing argument to the jury, the conclusion that the
conviction cannot stand is inescapable."
16
I find wholly unpersuasive the suggestion of the majority
that McCambridge somehow benefitted from the unavailability of
Doyle's complete criminal record, which would have revealed the
conviction for child neglect. The harm to McCambridge caused by
the prosecutor's failure to abide by his representation to the
judge and to defense counsel that he would not question the fact of
Doyle's conviction vastly outweighs any advantage McCambridge
gained by not having the jury learn that Doyle's conviction was for
child neglect rather than child abuse.
17
In distinguishing Udechukwu, the majority says that here the
prosecutor did not make knowing misrepresentations to the jury.
That may or may not be true. Indisputably, however, the prosecutor
made a knowing misrepresentation to the judge and to defense
counsel prior to closing argument that he would not argue to the
jury the absence of evidence that Doyle had been convicted of child
abuse. This conduct cannot be excused as "sloppiness."

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the Supreme Court.18 See 28 U.S.C. § 2254(d)(1). The appeals court

found no prejudice for two reasons. First, it observed that "there

was no prejudice to [McCambridge] because he was aware of the
victim’s record and was prepared to offer such evidence at trial."

McCambridge, 690 N.E.2d at 475. That observation is entirely

beside the point. McCambridge did not wish to offer proof of the
victim’s record because he agreed with the trial court that the

truth about that record was irrelevant. McCambridge had referred

to Doyle’s record in his testimony and his closing argument only to

explain the origin of the altercation. The truth of the record

only became an issue at the end of the trial because of the

prosecutor’s unfair attack on McCambridge’s credibility in closing

argument.
Second, the appeals court said that the jury must have

believed McCambridge's account of the struggle and its cause given

his conviction for manslaughter: "By convicting the defendant of
manslaughter, the jury obviously credited the defendant's testimony

that the struggle in the van was precipitated by the defendant's

remark about [the conviction] to Doyle." McCambridge, 690 N.E.2d

at 475. As I have explained in my analysis of the majority's

similar assessment of the prejudice issue, the court's conclusion

that the jury "obviously credited" McCambridge's testimony rests on

18
I agree with the majority's reformulation of the content
of the "unreasonable application" clause of 28 U.S.C. § 2254(d)(1)
in light of Williams v. Taylor, 529 U.S. 362 (2000).

-78-
a faulty, unduly speculative premise.19 The jury may well have

reached a manslaughter verdict for any number of reasons having

nothing to do with its crediting of McCambridge's insistence that
the struggle was precipitated by his remark about Doyle's

conviction. All that can be said with certainty about the jury's

evaluation of McCambridge's claim of self-defense is that the jury
did not credit his testimony sufficiently to acquit him. Rather,

their verdict strongly suggested a negative judgment about

McCambridge’s credibility, in a case where the Commonwealth's

evidence was circumstantial and, on important points, inconclusive.

In summary, the state appeals court's conclusion that

the outcome of McCambridge's trial would not have been different if

the evidence of Doyle's conviction had been disclosed rests on an
irrelevant observation and an unduly speculative premise. Under

these circumstances, I must conclude that the court’s no prejudice

determination constitutes an unreasonable application of clearly
established federal law regarding prejudice in the Brady context,

and the writ of habeas corpus should be granted.

19
The district court agreed with the Massachusetts Appeals
Court that McCambridge had not been prejudiced by the prosecutor's
nondisclosure. It concluded that the jury must have found enough
plausibility in McCambridge's account to reject a first or second
degree murder conviction: "[T]he jury must have accepted that
[McCambridge's] provocation story at least raised some reasonable
doubt in order to convict on manslaughter rather than first- or
second-degree murder." This conclusion is unduly restrictive in
its view that McCambridge received his due because he avoided a
murder conviction. McCambridge was also entitled to fair
consideration of his claim that he was not guilty of manslaughter.

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