Norton v. Spencer

United States Court of Appeals
For the First Circuit

No. 03-1571

ROGER NORTON,

Petitioner, Appellee,

v.

LUIS SPENCER,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.

Dean A. Mazzone, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, were on brief, for
appellant.
Stewart T. Graham, Jr., with whom Graham & Graham, was on
brief, for appellee.

October 30, 2003

*
Of the Northern District of California, sitting by designation.
 TORRUELLA, Circuit Judge. Roger Norton, petitioner-

appellee, defends the district court's order granting his writ of

habeas corpus. After careful review, we affirm.

I. Background

Roger Norton ("Norton"), was accused of sexually

assaulting Héctor Fuentes ("Fuentes"), an eleven year old child.

Fuentes reported Norton's alleged indecent assault to the state

police after he discovered his cousin, Noel Rodríguez ("Noel"),

crying inside Norton's camper. Noel also told the police that he

was indecently assaulted by Norton.

Following a pretrial hearing in Massachusetts Superior

Court, the trial judge ruled that Noel was not competent to testify

because he refused to answer questions regarding where Norton had

allegedly touched him. As a result, the Commonwealth of

Massachusetts ("Commonwealth") did not proceed on the indictment

alleging that Norton indecently assaulted Noel. The Commonwealth

did proceed, however, on the charges against Norton alleging he

indecently assaulted Fuentes.

Fuentes was the only witness to testify to the incidents

at trial. He testified that Norton grabbed his genitalia, without

consent, at least three times. Fuentes also testified that Norton

asked him to have sex on more than one occasion.

Norton was convicted on four counts of indecent assault

and battery on a child under the age of fourteen, and sentenced to

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incarceration in state prison. On appeal, the Massachusetts

Appeals Court ("MAC") affirmed the conviction in Commonwealth v.

Norton, 664 N.E.2d 883 (Mass. App. Ct. 1996) ("Norton I"). The

Massachusetts Supreme Judicial Court ("SJC") denied Norton's

application for leave to obtain further appellate review in

Commonwealth v. Norton, 667 N.E.2d 1159 (Mass. 1996) ("Norton II").

Some time after the SJC denied Norton's application for

further appellate review, Norton made two discoveries that he

argued constituted "new evidence" under 28 U.S.C. § 2245(d)(1)(D).

The first discovery involved the timing of the assaults. At trial,

the prosecution established that the alleged assaults occurred in

late 1989, around the time Fuentes's mother was in the hospital

giving birth. Norton later discovered the birth certificate of

Fuentes's sibling, who was born in July 1989, not late 1989.

Norton also obtained affidavits stating that he was not a guest in

Fuentes's cousin's house, the place where the alleged assaults

occurred, in July 1989.

Second, Norton obtained affidavits from Noel and Noel's

mother, María Sonia Rodríguez ("Rodríguez"), stating that Noel had

fabricated his allegation against Norton at the insistence of

Fuentes and that Fuentes also fabricated his allegations. Further,

Rodríguez added that the Assistant District Attorney and another

person repeatedly told Noel and Fuentes how to testify even after

Noel informed them that none of it was true and that Fuentes had

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made it all up. It is undisputed that the prosecutor never

provided Norton with the information contained in Noel's or

Rodríguez's affidavits.

Norton moved for a new trial before the original trial

judge based on the new evidence. The motion was denied. The MAC

affirmed the denial of Norton's motion for new trial in

Commonwealth v. Norton, 728 N.E.2d 972 (Mass. App. Ct. 2000)

("Norton III"). The SJC denied Norton's application for leave to

obtain further appellate review in Commonwealth v. Norton, 738

N.E.2d 354 (Mass. 2000) ("Norton IV").

Norton then filed a writ of habeas corpus in the United

States District Court for the District of Massachusetts ("district

court") claiming, inter alia, that the prosecution violated rights

afforded by Brady v. Maryland, 373 U.S. 83 (1963). The district

court ordered that Norton's writ of habeas corpus be allowed unless

the Commonwealth timely filed a request for an evidentiary hearing.

Norton v. Spencer, 253 F. Supp. 2d 65, 76 (D. Mass. 2003) ("Norton

V"). The Commonwealth did not file such a request. Rather, the

Commonwealth filed a motion to reconsider. The district court

denied the motion and ordered the habeas writ be granted unless the

Commonwealth instituted proceedings to retry Norton. Norton v.

Spencer, 256 F. Supp. 2d 120 (D. Mass. 2003) ("Norton VI"). The

Commonwealth moved for a stay of the district court's order

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granting Norton's request for habeas relief with this Court. This

Court granted the stay pending disposition of this appeal.

II. Analysis

A. Standard of Review for the District Court

The first question in this case is whether the district

court used the proper standard of review when it granted habeas

relief. In reviewing a judgment on a petition for a writ of habeas

corpus, this Court examines the legal conclusions of the district

court, including the proper standard of review, de novo. Almanzar

v. Maloney, 281 F.3d 300, 303 (1st Cir. 2002), cert. denied, 537

U.S. 817 (2002).

The Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA")

prohibits a federal court from granting an
application for a writ of habeas corpus with
respect to a claim adjudicated on the merits
in state court unless that adjudication
resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States.

Williams v. Taylor, 529 U.S. 362, 399 (2000) (internal quotations

omitted). However, "AEDPA's strict standard of review only

applies to a claim that was adjudicated on the merits in state

court proceedings." Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.

2001), cert. denied, 535 U.S. 1018 (2002); see also Ellsworth v.

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Warden, 333 F.3d 1, 6 (1st Cir. 2003).1 If a claim was not

adjudicated on the merits in a state court proceeding, then the

issue is reviewed de novo. Id.

The parties disagree as to whether Norton's federal claim

under Brady v. Maryland, 373 U.S. 83 (1963) was adjudicated on the

merits in the state court proceeding. In denying Norton's motion

for new trial, the trial court stated that Norton

filed a motion for a new trial raising the
same issues as were raised on the direct
appeal or that could have been raised.
[Norton's attorney] . . . did an excellent job
in cross examining witnesses and developing
any inconsistencies. The incident in
[Norton's] trailer was addressed at trial at
some length. The defendant is unhappy at the
facts the jury felt were proved. Other
matters of 'new evidence' were available at
the time and could have been introduced or
relied on by the defendant if it was in his
best interest to do so . . . As trial judge at
the time I do not feel that any of the issues
raised by [Norton] has merit deserving a new
trial. [Norton] got a full fair trial with
competent counsel.

In affirming the trial judge's decision, the MAC wrote

that the "weight and import of [the] affidavits were for the trial

court's discretion. [The trial judge] was not required to accept

the statements as true even if they were undisputed. Thus, the

judge could properly determine that these affidavits did not

demonstrate any bad faith on the part of the prosecutor." Norton

1
The Commonwealth argues that Fortini is undermined by Early v.
Packer, 537 U.S. 3 (2002). We rejected this argument in Ellsworth,
333 F.3d at 6 n.1.

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III, 728 N.E.2d at 972 (citations omitted). The MAC further

explained that "[i]n light of the fact that much evidence at the

trial was equally calculated to discredit the victim [Fuentes], the

judge could properly regard the affidavits as largely cumulative in

their basic effect. Undisclosed evidence that is cumulative does

not normally require a judge to grant a new trial." Id. (citing

Commonwealth v. Tucceri, 589 N.E.2d 1216 (1992)).

The district court held that "no state court remotely

addressed" Norton's federal Brady claim. Norton V, 253 F. Supp. 2d

at 71. As a result, the district court applied de novo review.

Id. at 72. We hold that applying de novo review was inappropriate

as the MAC did address the Brady issue. The MAC, citing to

Tucceri, 589 N.E.2d 1216, held that undisclosed evidence that is

cumulative does not require a new trial. Norton III, 728 N.E.2d at

972. As we have previously held, "Tucceri states explicitly that

it is articulating a state law standard that is more favorable to

defendants than the Federal Constitutional [Brady] standard."

McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002) (internal

quotations and citation omitted). When, as here, there is a state

case "that explicitly says that the state adheres to a standard

that is more favorable to the defendants than the federal standard

. . . we will presume the federal law adjudication to be subsumed

within the state law adjudication." Id. Since the MAC addressed

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the Brady issue, the district court should not have reviewed the

case de novo.

B. The AEDPA Standards

Norton's claim must be analyzed under the AEDPA standards

because the federal claim was adjudicated in the state court

proceeding. AEDPA precludes a habeas court from granting relief,

unless the state court holding "was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States" or 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)(1)-(2). 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." McCambridge, 303 F.3d at 36 (citing

Williams v. Taylor, 529 U.S. at 412-13).

It is difficult to determine how to approach the analysis

under AEDPA because neither the trial judge nor the MAC provided a

thorough explanation of their decisions. Fortunately, the result

is the same whether this case is viewed as an unreasonable

determination of the facts in light of the evidence presented in

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the state court proceeding or as an unreasonable application of

clearly established federal law.

C. Unreasonable Determination of the Facts

A "determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and

convincing evidence." 28 U.S.C. § 2254 (e)(1). The "presumption

of correctness is equally applicable when a state appellate court,

as opposed to a state trial court, makes the finding of fact."

Sumner v. Mata, 455 U.S. 591, 593 (1982).

The Commonwealth argues that, by denying Norton's motion

for a new trial, the trial court implicitly found the affidavits to

be incredible.2 We disagree. Unlike cases holding that a failure

to make an express ruling is tantamount to a finding against the

credibility of the affiants, there is no indication that the trial

court ever viewed or evaluated the affidavits. Further, an

inference that the affiants were incredible is not "fairly

supported by the record." See Marshall v. Lonberger, 459 U.S. 422

(1983) (implying a lack of credibility in the absence of an express

finding after extensive hearings and support in the record);

2
In connection with this argument, the Commonwealth argues that
Norton's Brady claim in the habeas petition was untimely because
the trial court made implicit credibility determinations. Since we
reject the implicit finding argument, we also reject the argument
that the Brady claim was untimely. We hold that Norton's claim was
timely under AEDPA.

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LeValle v. Delle Rose, 410 U.S. 690, 695 (1973)(implying a ruling

where there is "every indication [the trial judge] applied the

correct standards."); United States v. Jones, 766 F.2d 270 (7th

Cir. 1985)(implying that the trial court found the affidavits

incredible, absent an express finding, because only one of the

fifteen witnesses had recanted and recantations are treated with

great skepticism). In Norton's case, the trial judge did not hold

a lengthy hearing on the affidavits or make any findings of fact.

Nor was there evidence in the record impugning the credibility of

Noel or Rodríguez. Although the trial judge had held Noel

incompetent to testify because he refused to answer questions

regarding where he was touched, the trial judge never ruled, or

suggested, that Noel was incredible. We are unwilling to infer

that the trial judge viewed the affiants as incredible when there

is nothing in the record, or in the circumstances of this case, to

support such an inference.

This is especially true when the language used by the

trial court suggests that it did not even consider the credibility

of the affidavits. The trial court order stated that Norton "filed

a motion for new trial raising the same issues as were raised on

the direct appeal or that could have been raised." However, the

part of the motion for a new trial dealing with the affidavits

involved new evidence that was not available and could not have

been raised on direct appeal. This language suggests that the

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trial court did not evaluate the affidavits in ruling on the motion

for a new trial, much less that the trial court implicitly found

the affidavits to be incredible.

In affirming the denial of Norton's motion for new trial,

the MAC stated that the trial judge "was not required to accept the

[affidavits] as true" and "[i]n light of the fact that much

evidence at trial was equally calculated to discredit the victim

[Fuentes], the judge could properly regard the affidavits as

largely cumulative in their basic effect." Commonwealth v. Norton,

728 N.E.2d 972. These statements can be interpreted as findings of

fact.

As previously discussed, a finding that the trial judge

viewed the affiants as incredible is an unreasonable determination

of the facts. In addition, we agree with the district court that

the state court's finding that "the affidavits were necessarily

incredible or merely cumulative" is an unreasonable determination

of the facts in light of the evidence presented. After all,

evidence cannot be cumulative when it goes to an issue that was not

known at the time of trial.

It is well established that "impeachment evidence that is

merely cumulative . . . is insufficient to establish prejudice

under Brady." United States v. García-Torres, 341 F.3d 61 (1st

Cir. 2003) citing United States v. Martínez-Medina, 279 F.3d 105

(1st Cir. 2002). A determination that the affidavits were

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cumulative, however, is an unreasonable determination of the facts

in light of the evidence in the record. Cf. Conley v. United

States, 323 F.3d 7, 30 (1st Cir. 2003)(evidence was cumulative

because defendant was already aware of essential facts that would

allow him to take advantage of the exculpatory evidence at issue);

United States v. García-Torres, 331 F.3d at 71 (evidence was

cumulative when there was substantial other evidence of the

appellants' involvement in the conspiracy); Lugo v. Muñoz, 682 F.2d

7, 9 (1st Cir. 1982) (evidence was cumulative because the facts

which petitioner alleges to have been suppressed were a matter of

public record). As a result, we accord no deference to the

appellate court's reconstruction of the lower court's decision.

See Parker v. Dugger, 498 U.S. 591, 597 (1982) (reviewing court

overturned a state court decision not supported by the record using

a less rigorous standard under the previous habeas statute).

The trial court made no finding that the affidavits were

cumulative nor did it mention the affidavits in denying Norton's

motion. As the Commonwealth admitted, there was no other evidence

against Fuentes directly establishing that the claims were

fabricated. The affidavits, therefore, cannot be classified as

cumulative. Further, the MAC claimed that the trial judge "could"

properly regard the affidavits as cumulative. It did not hold that

the trial court did regard the affidavits as cumulative.

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 D. Unreasonable Application of Clearly Established Law

We also agree with the district court that the state

court decisions are an unreasonable application of clearly

established federal law -- a holding utterly inconsistent with

Brady. It is not always clear when a decision is an unreasonable

application of federal law. "If it is a close question whether the

state decision is in error, then the state decision cannot be an

unreasonable application." McCambridge, 202 F.3d at 36. An

unreasonable application exists, however, when there "is some

increment of incorrectness beyond error." Id. (citation omitted).

"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. A state court

decision may be "unreasonable if it is devoid of record support for

its conclusions or is arbitrary." Id. at 37 (citing O'Brien v.

Dubois, 145 F.3d 16, 25 (1st Cir. 1998)). For the reasons

discussed below, we find the state court's decision arbitrary and

devoid of reason.

When addressing a challenge to the legitimacy of a

criminal prosecution based upon a failure of the prosecution to

disclose exculpatory evidence, courts must consider whether: (1)

the evidence is favorable to the accused; (2) the evidence was

suppressed by the state; and (3) the petitioner was prejudiced.

Strickler v. Greene, 527 U.S. 163, 281-82 (1999).

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 First, the affidavits are favorable to the accused

because they constitute favorable impeachment evidence, which is a

type of evidence covered by the Brady disclosure requirements.

Strickler v. Greene, 527 U.S. at 282 n.21. Indeed, "[w]hen the

reliability of a given witness may well be determinative of guilt

or innocence, nondisclosure of evidence affecting credibility falls

within this general rule." Giglio v. United States, 405 U.S. 150,

153-54 (1972) (internal quotations and citation omitted). Noel's

affidavit established that he "made up the story against [Norton]

because my cousin [Fuentes] told me to." The affidavit also

established that Fuentes had told Noel that he too "had made up"

the story about Norton. Such information is evidence that is

clearly favorable to the accused and would have substantially

undermined his judgment of guilt if it had been presented at

Norton's trial.

Second, it is undisputed that the prosecutor never

provided Norton with the information contained in the affidavits.

Third, Norton was prejudiced by the failure to disclose

the information contained in the affidavits. Fuentes was the only

witness describing the alleged assaults that led to Norton's

conviction, thus withholding impeachment evidence that Fuentes lied

about the assault was prejudicial to Norton. See Napue v.

Illinois, 360 U.S. 264, 269 (1959) (holding that "[t]he jury's

estimate of the truthfulness and reliability of a given witness may

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well be determinative of guilt or innocence"). Prejudice only

leads to the undoing of a conviction, however, when "there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different, a

reasonable probability here being one that is sufficient to

undermine confidence in the outcome." Ellsworth v. Warden, 333

F.3d at 4 (citing United States v. Bagley, 473 U.S. 667, 682

(1985)).3 Confidence in the outcome is particularly doubtful when

the withheld evidence impeaches a witness whose "testimony is

uncorroborated and essential to the conviction." United States v.

Martínez-Medina, 279 F.3d 105, 126 (1st Cir. 2002) (citing Giglio

v. United States, 405 U.S. at 154-55). Fuentes's testimony was

uncorroborated and essential to Norton's conviction as he was the

3
It is true that "[i]nadmissible evidence is by definition not
material." United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir.
1983); but see Ellsworth, 333 F.3d at 5 (holding that "evidence
itself inadmissible could be so promising a lead to strong
exculpatory evidence that there could be no justification for
withholding it."). The state courts never directly addressed
whether the material in Noel's or Rodríguez's affidavits was
admissible. The MAC did say, however, that Rodríguez's affidavit
was "one further level of hearsay removed from the allegedly
recanting victim," implying that both affidavits were inadmissible
hearsay. Norton III, 728 N.E.2d at 972. Noel's affidavit is
admissible, however, because of the prior inconsistent statement
exception to the hearsay rule. See Commonwealth v. Daye, 469
N.E.2d 483, 490-91 (Mass. 1984) (restating the established rule
that prior inconsistent statements are admissible for the purpose
of impeaching the credibility of a witness's testimony).
Rodríguez's affidavit is admissible because personal observations
that the prosecutor improperly coached the witness are not hearsay.
See Commonwealth v. Ortiz-Soto, 731 N.E.2d 553, 555 n.2 (Mass. App.
Ct. 2000) (stating that personal observations are not hearsay).

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only witness to testify to the alleged indecent assaults.

Therefore, there is a reasonable probability that, had the evidence

been disclosed to the defense, the outcome could have been

different.

III. Conclusion

We therefore affirm the district court's conclusion that

habeas be granted.

Affirmed.

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