Not for Publication in West's Federal Reporter
Citation Limited Pursuant to lst Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1570
JOSEPH DECICCO,
Petitioner, Appellant,
v.
LUIS SPENCER, SUPERINTENDENT, MCI NORFOLK,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Smith,* District Judge.
Stephen Hrones, with whom Hrones & Garrity, was on brief for
appellant.
Dean A. Mazzone, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellee.
March 24, 2004
*
Of the District of Rhode Island, sitting by designation.
COFFIN, Senior Circuit Judge. Two courts – one state and
one federal – have concluded that the 1994 state trial that
resulted in petitioner Joseph DeCicco's conviction for second-
degree felony murder was significantly flawed. Neither court,
however, felt that the errors warranted reversal of his conviction.
In this appeal from the district court's rejection of his petition
for habeas corpus relief, DeCicco again asserts that the jury's
finding of guilt may not stand. We have carefully reviewed the
record and caselaw, but find no basis for changing the outcome.
Because petitioner's claims have been fully addressed in the prior
decisions, we confine our discussion to the most salient points.
The facts underlying this case are described in detail in the
opinion issued by the Massachusetts Appeals Court on direct appeal,
see Commonwealth v. DeCicco, 688 N.E.2d 1010, 1012-14 (Mass. App.
Ct. 1998),1 and the procedural history is fully recited in the
opinion of the magistrate judge from which this appeal arises. It
thus suffices to provide only brief context. Petitioner and George
Madden, a neighbor and frequent companion, were both charged in
connection with the arson of a home adjacent to the apartment
building where they lived. Both men had strained relationships
with the home owner, whose son died in the blaze from smoke
1
An abbreviated version of the facts was given in the
appellate court's decision affirming denial of petitioner's motion
for new trial. See Commonwealth v. DeCicco,744 N.E.2d 95, 97
(Mass. App. Ct. 2001).
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inhalation; the father had recently stopped providing them with
cocaine, and they had been trying to persuade him to resume.
Petitioner and Madden each contended the other had thrown the fire
bomb that triggered the blaze. The jury found petitioner guilty of
second-degree murder and several other crimes.
Two issues are before us. First, petitioner claims that the
prosecutor improperly bolstered the credibility of Madden, the
government's key witness, by telling the jury that he would be
tried later for first-degree murder and was not receiving any plea
benefits for his testimony. As it turned out, Madden pleaded
guilty eleven months later to a reduced charge of manslaughter.
Petitioner argues that the jurors would have viewed Madden's
damaging testimony less favorably, and would not have convicted
petitioner, had the prosecutor not misled them.
Second, petitioner asserts that his trial counsel was
ineffective because he told the jury that petitioner would testify
but then did not call him to the stand. Petitioner contends that
this failure to follow through on a promise damaged counsel's
credibility with the jury and strengthened the government's version
of the facts by allowing Madden's testimony to remain unopposed.
The courts that previously have ruled on these two issues
confronted two limitations on the scope of their review: the
jurisprudence of waiver and the highly deferential standard
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applicable to habeas claims. As we shall explain, those factors
likewise constrain our assessment. We take each issue in turn.
Bolstering Claim. Petitioner first raised the issue of
Madden's plea agreement in a motion for new trial that he submitted
after the Massachusetts Appeals Court ruled against him on direct
appeal. The trial court denied the motion. In its subsequent
ruling, the Appeals Court indicated that the bolstering claim was
waived because it was not raised on direct appeal. See 744 N.E.2d
at 97. It applied the standard applicable to waived claims, see
id. (citing Commonwealth v. Amirault, 677 N.E.2d 652 (Mass. 1997)),
and found that there was no substantial risk that the result would
have been different without the asserted error,2 id. at 100. On
habeas review, the district court applied long established case law
on procedural default and concluded that petitioner failed to show
cause for omitting the bolstering claim from earlier proceedings.
See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Burks v. Dubois,
55 F.3d 712, 716 (lst Cir. 1995). Consequently, the district court
considered only whether his conviction was a fundamental
miscarriage of justice, and found that it was not.3
2
One judge on the panel dissented, stating: "In view of the
weakness of the government's case apart from Madden's testimony, I
believe that the misleading evidence concerning Madden's potential
motives for bias likely 'affected the judgment of the jury,'
requiring reversal." 744 N.E.2d at 101.
3
To demonstrate a fundamental miscarriage of justice, the
petitioner must establish that "'a constitutional violation has
probably resulted in the conviction of one who is actually
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We agree with the district court's reasoning. Petitioner knew
before his direct appeal was argued about the change in Madden's
status,4 and it appears that Mass. R. App. P. 8(e) would have
allowed the Commonwealth Appeals Court to admit the fact of
Madden's plea agreement into evidence even though it was not in the
trial court record.5 See, e.g., Commonwealth v. Harrison, 712
N.E.2d 74, 75 n.1 (Mass. 1999) (the fact of defendant's guilty plea
to a federal charge was not part of the original record, but was
admitted by the Appeals Court on motion by the Commonwealth).
Although petitioner disputes the efficacy of the rule for this
purpose, we do not see why Madden's late-arising deal would not
qualify as a "material" fact that had been either omitted from, or
misstated in, the record. Petitioner made no attempt to test the
rule. See Commonwealth v. Randolph, 780 N.E.2d 58, 64 (Mass. 2002)
("At its core, the waiver doctrine states that a defendant must
raise a claim of error at the first available opportunity."). We
acknowledge that the state appeals panel that did consider the
issue refrained from explicitly terming it waived, observing
innocent.'" Schlup v. Delo, 513 U.S. 298, 327 (1992) (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)).
4
Madden's disposition was disclosed in the Commonwealth's
brief on appeal.
5
The rule allows admission of new evidence into the record
either through stipulation by the parties or on motion "[i]f
anything material to either party is omitted from the record by
error or accident or is misstated therein . . . ." Mass. R. App.
P. 8(e).
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instead that petitioner's failure to raise it at trial or on direct
appeal "implicates the possibility of waiver," 744 N.E.2d at 97
(emphasis added). But the court then went on to utilize the
standard of review applicable to waived claims. In our view, the
court thus treated the bolstering issue as waived, limiting its own
review with the consequence of limiting ours as well. We therefore
hold that the district court properly disposed of this issue.6
Ineffective Assistance of Counsel/Unfulfilled Promise. The
Massachusetts Appeals Court concluded that defense counsel "failed
to meet a minimum standard of performance by announcing to the jury
that the defendant might testify without first having met with him
to discuss that possibility and to prepare him for it," 688 N.E.2d
at 1088. Pursuant to the two-part test applicable under both
federal and state law for ineffective assistance claims, the court
then explored whether counsel's deficient representation was
prejudicial, see Strickland v. Washington, 466 U.S. 668, 687, 694
(1984); Commonwealth v. Johnson, 754 N.E.2d 685, 694 (Mass. 2001),
and found that it was not. See 688 N.E.2d at 122-24.
The district court, in turn, considered the issue with the
substantial deference required by the Antiterrorism and Effective
Death Penalty Act (AEDPA). See Williams v. Taylor, 529 U.S. 362,
6
We note that, even if we did not view the claim as waived,
the outcome would be the same; on this record, we could not say
that the Massachusetts court's decision either was contrary to or
involved an unreasonable application of clearly established federal
law. See infra at 7.
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412-13 (2000); McCambridge v. Hall, 303 F.3d 23, 35-37 (lst Cir.
2002) (en banc). In relevant part, that statute bars a federal
court from granting habeas relief unless the state court
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," 28 U.S.C. § 2254(d)(1). The district court agreed that
"trial counsel undoubtedly made a serious error," but disagreed
with the finding of no prejudice: "If viewed de novo, this court
would conclude that there is a reasonable possibility that, but for
counsel's errors, the result of the proceeding would have been
different." The court recognized that the question was close,
however, and, in light of the constraints imposed by AEDPA, could
not say that the Appeals Court's decision was an unreasonable
application of the prejudice prong of the Strickland test.
Both the Massachusetts Appeals Court and the district court
assessed prejudice by reviewing the relevant distinctions between
this case and other cases in which habeas relief was granted based
on counsel's failure to call a defendant or expert whose testimony
had been promised in an opening statement. As the district court
observed, the differences add up to a very close case.7 Given the
7
The distinctions noted by the district court included: (1)
prior cases involved more dramatic, unequivocal and repeated
promises that the defendant or an expert would testify; (2)
petitioner's version of events did reach the jury through the
cross-examination testimony of State Trooper Cox, albeit in a less
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narrow sphere in which we may act, we are compelled to affirm
dismissal of the habeas petition. Regardless whether we would make
the same judgment, we cannot say the conclusion reached by the
state appeals court was objectively unreasonable.
Affirmed.
powerful form than live testimony from petitioner himself; (3) the
cumulative nature of his testimony diminished the likelihood that
the jury would draw a negative inference from his non-appearance.
See Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002); Anderson v.
Butler, 858 F.2d 16 (1st Cir. 1988).
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