Lynch v. Ficco

United States Court of Appeals
For the First Circuit

No. 05-2183

EDWARD H. LYNCH JR.,

Petitioner, Appellant,

v.

EDWARD FICCO, Superintendent of the Souza-Baranowski Correctional
Center; THOMAS F. REILLY, Attorney General of the Commonwealth of
Massachusetts,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Emanuel Howard for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief, for
appellees.

February 15, 2006
 LYNCH, Circuit Judge. After a jury trial in the

Massachusetts Superior Court, Edward H. Lynch Jr. was convicted of

first-degree murder and sentenced to life in prison. He appealed,

and the Massachusetts Supreme Judicial Court (SJC) affirmed his

conviction and affirmed the denial of various post-trial motions.

See Commonwealth v. Lynch, 789 N.E.2d 1052, 1062 (Mass. 2003),

cert. denied, 540 U.S. 1059 (2003).

Lynch filed a petition for a writ of habeas corpus in the

federal district court. The court denied the petition on all

grounds. Lynch then applied for a certificate of appealability

(COA) as to the denial of the writ. He sought and obtained the COA

for only one of the grounds in his habeas petition -- a due process

claim based on an argument that the state trial court's garbled

jury instructions effectively relieved the prosecution of the

burden of proving malice beyond a reasonable doubt.

We review the petition under the Antiterrorism and

Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. The

respondents have two arguments. The first is that, under the

particulars of habeas law, Lynch cannot get to federal review of

the merits of the constitutional jury instruction issue unless he

shows cause for and prejudice from the independent and adequate

state ground of procedural waiver based on his failure to object at

trial to the instructions. Lynch, in turn, attempts to show cause

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and prejudice to excuse his procedural default by asserting

ineffective assistance of trial counsel.

The respondents alternatively argue that if the merits

are reached, then the standard of review is that the SJC's

conclusions must be "contrary to" or an "unreasonable application"

of federal constitutional law, and they are neither. Lynch replies

that the SJC did not address the federal constitutional question,

and that on de novo review, he is entitled to relief.1 This latter

dispute raises a question of the closeness of the match between the

SJC's "center of gravity" test and federal constitutional tests for

evaluating error in jury instructions. We never reach that issue.

We affirm the district court's denial of the habeas

petition on the ground that Lynch has failed to show cause and

prejudice to excuse his procedural default.

1
On the jury instruction issue, each party's brief applied
the standard of review more favorable to the other side, and then
each party changed its mind at oral argument. Thus, in his brief,
Lynch suggested that the SJC had chosen not to review any federal
constitutional issue, but he framed his argument on the merits of
the jury instruction issue in terms of the AEDPA standard of
review. At oral argument, however, he said that the SJC did not
actually address the federal constitutional question, and that our
review should be de novo. Meanwhile, respondents' brief states
that "the SJC decided the jury instruction claim solely as a matter
of state law. Thus, this court reviews the jury instruction claim
de novo." However, at oral argument, respondents said the "center
of gravity test" that the SJC applied to the jury instruction issue
was a loose way of stating the federal test and was not in conflict
with federal law, implicitly invoking AEDPA review.

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 I.

A. The Underlying State Crime

The facts are described as they were found by the SJC,

supplemented with other facts from the record that are consistent

with the SJC's findings. We must "accept the state court findings

of fact unless [Lynch] convinces us, by clear and convincing

evidence, that they are in error." McCambridge v. Hall, 303 F.3d

24, 26 (1st Cir. 2002) (en banc) (citing 28 U.S.C. § 2254(e)(1));

see also Smiley v. Maloney, 422 F.3d 17, 19 n.1 (1st Cir. 2005).

Lynch recounts the facts somewhat differently to this court, but he

does not argue that the SJC's description of what happened is in

error.2

In June 1992, Lynch lived and worked on a hog farm in

Lakeville, Massachusetts. Early in the afternoon of June 5, he

went to Taunton and began drinking. Within several hours, he had

consumed twelve to fourteen bottles of beer. At around 7:00 p.m.,

he moved to another bar, where he drank more beer, leaving only

once at around 9:30 p.m.; he bought a pint of vodka and returned

with it within ten minutes. When that bar closed at 1:00 a.m.,

2
Lynch's version of the facts emphasizes his testimony that
it was the victim who had attacked him, lunging with the knife and
kneeing him in the groin, and that he had been trying to fend her
off when he noticed she had been stabbed. But he also acknowledges
the prosecution's evidence that the victim sustained seven stab
wounds and that Lynch confessed to stabbing the victim, and he
agrees that the "evidence would have supported a finding of . . .
malice."

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Lynch remained "huddled in a doorway," continuing to drink from his

bottle of vodka and napping. At 6:00 a.m., he had breakfast at a

luncheonette, and then he returned to the second bar, where he

resumed drinking. By 2:00 p.m., when he left the bar, Lynch had

consumed approximately fourteen more alcoholic drinks.

Lynch left the bar in the company of Andrea Geremia, who

had agreed to have sex with him for money. The two took a taxicab

to Lynch's cottage on the grounds of the hog farm. Lynch had two

beers, and Geremia had a soft drink. Lynch gave Geremia fifty

dollars, and they went to the bedroom, where Lynch passed out

before a sexual act was completed. Lynch awoke when he heard "the

sound of a squeaky dresser drawer being opened." He concluded that

Geremia, who was walking away from the drawer and who had her hand

down her shirt, had stolen money from him. He became angry and

followed Geremia to the kitchen. She turned on him, holding a ten-

inch boning knife. Lynch "easily overpowered" her; he is six feet,

two inches tall and then weighed 180 pounds, and she was "much

smaller." Lynch grabbed the knife from Geremia and stabbed her.

According to a forensic pathologist, Geremia had been stabbed five

times in the chest and abdomen, each time receiving a wound that by

itself would have been fatal. She had also been wounded twice on

her back and side. Lynch watched her bleed to death. The next

day, he buried her body in a trench on the farm used for disposing

of dead pigs.

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 Lynch was incarcerated on unrelated charges and confided

in another inmate, who told another; the police eventually

interviewed Lynch's confidant. Using the information they

obtained, the police discovered Geremia's body on January 4, 1993.

B. Trial in the Massachusetts Superior Court

Lynch was charged with murder in the first degree.

Lynch's defense at trial was that he had stabbed Geremia in self-

defense or by accident, and that his "sense of reality was altered"

at the time of the stabbing because of his heavy drinking. He

testified he did not intentionally stab Geremia; the stabbing was

inadvertent and happened during a struggle in which Geremia tried

to stab him with the knife, kneed him in the groin, and slapped

him. Lynch and his trial counsel reenacted the struggle for the

jury (Lynch as himself, counsel as Geremia). Lynch testified that

when he realized Geremia had been stabbed, he tried to stop her

bleeding by pressing a towel onto the stab wound. The defense also

presented evidence of Lynch's heavy consumption of alcohol earlier

and expert testimony about the effects of alcohol addiction and

excessive drinking. The expert opined that when Lynch awoke from

his passed-out state, he would have felt numb and could have been

in a "blackout" or "hallucinating" when Geremia was stabbed.

Defense counsel's closing argument focused on Lynch's

extreme intoxication and lack of sleep -- as counsel put it, "[h]e

drank and he drank and he drank" before going home with Geremia,

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and then he drank some more. Counsel argued that Geremia had

violated Lynch's rights and the sanctity of Lynch's home by

stealing money from the dresser, but this was presented not as

justification for an attack on Geremia, but rather as the precursor

to Lynch's simply asking Geremia to leave. Counsel stressed not

rage, but the notion that Lynch "didn't know what [Geremia] was

capable of" once Geremia "pull[ed] a knife." Lynch reacted as any

reasonable person would: he tried to get the knife out of Geremia's

hand, whereupon she "took a swipe at his hand," and a struggle

ensued, in which Geremia continued to kick and hit Lynch, until at

some point Lynch noticed some blood. Lynch then "panicked," tried

to stop the bleeding with a towel, and ultimately concealed

Geremia's body on the grounds of the hog farm.

Counsel suggested that the supposed "multiple stab

wounds" had actually occurred later on, when Geremia's body was

being recovered. Counsel portrayed Lynch as "scared" and concluded

that the killing "was self-defense, and it was an accident," that

"[a]t the very worst . . . it was recklessness," and that there

"certainly wasn't malice."

At the heart of Lynch's habeas argument are the jury

instructions distinguishing murder from voluntary manslaughter. At

the beginning of the jury charge, the trial judge correctly

instructed the jury that "[a]ll of my instructions are equally

important. Do not single out some and ignore others." The court

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also stated that "[w]e can't decide that one law is a good law and

another is a bad law . . . . You must accept the entire law that

I'm going to give you."

When it came to the substantive law governing the

charges, the court started with murder: "Murder is the unlawful

killing of a human being with malice aforethought. Murder

committed with deliberately premeditated malice aforethought or

with extreme atrocity or cruelty is murder in the first degree.

Murder which does not appear to be murder in the first degree is

murder in the second degree."

On malice itself and on voluntary manslaughter, the court

said:

[T]he crime is voluntary manslaughter, not
murder, if malice is negated by reasonable
sudden provocation or sudden combat or at
least by a reasonable doubt whether those
circumstances were absent. I will . . .
instruct you on voluntary manslaughter in a
few minutes.
The existence of malice has not been
proved if you find the death resulted when the
defendant was in the state of hot blood upon a
reasonable provocation or sudden combat or in
the exercise of self-defense, however
excessive you find the use of force to have
been in the circumstances.

The court told the jury not to draw an inference of

malice "unless you are persuaded beyond a reasonable doubt that the

defendant's specific intent did not arise in his mind when he was

in a state of hot blood upon a reasonable provocation or sudden

combat or in the exercise of self-defense."

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 After explaining first- and second-degree murder, and

stating multiple times that to prove murder the Commonwealth had to

prove beyond a reasonable doubt malice and other elements, the

court explained that if the Commonwealth had not proved murder, the

jury "must then consider whether the Commonwealth has proved the

lesser included offense of manslaughter." The court defined

manslaughter as "the unlawful killing of a person by another

without malice aforethought." The court explained that certain

mitigating circumstances negate malice, and if they are present,

"even though the defendant has committed an unlawful killing the

crime is manslaughter and not murder." The court said that one

type of manslaughter is voluntary manslaughter, which it defined as

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.

Next, the court gave the instructions about which Lynch

complains: "In order to prove the defendant guilty of voluntary

manslaughter the Commonwealth must prove three elements beyond a

reasonable doubt: first, that the defendant inflicted an injury

upon Andrea Geremia from which she died; second, that the defendant

injured Andrea Geremia as a result of a 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

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excuse or justification, and was not an accident." (emphases added)

We highlight the portion of the court's language -- what Lynch

calls an "inversion" -- that puts the burden on the Commonwealth to

prove the mitigating factors that negate malice.

Right after this, the court confusingly stated that the

burden was on the Commonwealth to disprove these mitigating

factors: "Where there is evidence of provocation the Commonwealth

has the burden of proving beyond a reasonable doubt that the

defendant did not act in the heat of passion." The court added

that "[t]he Commonwealth has the burden of proving beyond a

reasonable doubt that the defendant did not act in the heat of

passion or on sudden provocation. You may not return a verdict of

guilty of murder unless the Commonwealth meets this burden." This

was followed by another "inversion," described in the footnote

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below.3 Indeed, Lynch claims that in all, there were seven

inversions.

The jury returned a verdict of guilty of first-degree

murder. The jury found that Lynch had committed first-degree

murder both "with deliberately premeditated malice aforethought"

and "with extreme atrocity or cruelty." The court sentenced Lynch

to life imprisonment. His post-trial motions for a new trial and

other requests were denied.

C. The SJC Ruling on Lynch's Direct Appeal and Appeal From
Denial of Post-Trial Motions

Lynch appealed his conviction and from the denial of

various post-trial motions, including a motion for a new trial.

The appeals were consolidated before the SJC. See Lynch, 789

N.E.2d at 1054. One of the claims Lynch raised before the SJC was

that the trial judge's "instruction regarding voluntary

3
The court told the jury that

if, after considering all of the evidence, you
find that the Commonwealth has proved beyond a
reasonable doubt that the circumstances
preceding or attending the killing were caused
by adequate and reasonable provocation by the
deceased or by an act of sudden combat against
the defendant . . . and that thereupon the
defendant under the influence of such passion
and before the cooling of the blood killed the
deceased, then you must find the defendant
guilty of voluntary manslaughter.

But "[i]f . . . you find the Commonwealth has not met this burden
of proof then you must find the defendant not guilty of voluntary
manslaughter."

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manslaughter impermissibly shifted the burden of proof on

provocation, thereby creating a substantial likelihood of a

miscarriage of justice."4 Id. The SJC agreed that there had been

error,5 but observed that there had been no objection to it, and so

the error was subject only to limited review. See id. at 1060.

Noting the trial judge's other, correct, statements of the law and

analogizing to Commonwealth v. Fickling, 746 N.E.2d 745 (Mass.

2001), the SJC held that "the 'center of gravity' of the charge

plainly rested on the side of the correct instruction," and that

there was thus not "a substantial likelihood of a miscarriage of

justice." Lynch, 789 N.E.2d at 1061. The SJC also rejected

Lynch's other claims, including a separate claim for ineffective

assistance of counsel as to matters unrelated to the jury

4
This issue was raised solely on direct appeal, and not in
Lynch's motion for a new trial. Lynch cast his claim on appeal as
one of both federal constitutional (due process) law and
Massachusetts law, and he asserted that trial counsel's failure to
object "amounted to ineffective assistance of counsel."
5
The SJC referred to the error as an "Acevedo error," Lynch,
789 N.E.2d at 1060, so named after the case of Commonwealth v.
Acevedo, 695 N.E.2d 1065 (Mass. 1998). In Acevedo, the judge told
the jury that in order for a voluntary manslaughter conviction to
be warranted, the Commonwealth must prove beyond a reasonable doubt
that, inter alia, "the defendant injured [the victim] as a result
of sudden combat or in the heat of passion or using excessive force
in self defense." Id. at 1067. The SJC stated that "[t]hat
language incorrectly told the jury that malice is negated by
provocation only if provocation is proved beyond a reasonable
doubt," and it stressed that "[t]he correct rule is that, where the
evidence raises the possibility that the defendant may have acted
on reasonable provocation, the Commonwealth must prove, and the
jury must find, beyond a reasonable doubt that the defendant did
not act on reasonable provocation." Id.

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instructions, and affirmed the trial court in all respects. See

id. at 1054, 1062.

D. Federal Petition for Writ of Habeas Corpus

Lynch then filed a petition in the U.S. District Court

for a writ of habeas corpus under 28 U.S.C. § 2254,6 asserting four

claims,7 of which only the first is of concern. The first was that

"the state court violated federal due process by allowing the

murder conviction even though several renditions of irreconcilable

instructions regarding factors negating malice effectively relieved

the Commonwealth of the burden of proving malice beyond a

reasonable doubt." The substance of Lynch's argument is repeated

in substantially the same form on appeal.

The district court denied the habeas petition. The

court, citing Ortiz v. DuBois, 19 F.3d 708 (1st Cir. 1994),

correctly held that Lynch's failure to raise his objection to the

jury instructions at trial constituted an independent and adequate

state ground that was sufficient to foreclose federal habeas review

6
Before filing his habeas petition, Lynch had filed a
petition for rehearing with the SJC, which was denied, and had
filed a petition for a writ of certiorari with the Supreme Court,
which was also denied, see Lynch, 540 U.S. 1059.
7
Lynch's second, third, and fourth grounds were claims that
Lynch was deprived of effective assistance of counsel with respect
to various pre-trial and trial matters; these were treated by the
district court as one basic ineffective assistance of counsel
ground. Lynch's habeas petition did not make a specific
ineffective assistance of counsel argument as to trial counsel's
failure to object to the jury instructions.

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of the alleged error, absent a showing of cause and prejudice. See

id. at 714 (citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977)).

The court correctly noted that Lynch could only avoid the effect of

the procedural default by showing cause for and prejudice from his

failure to object. See id. (citing Wainwright, 433 U.S. at 84).

The court determined that because Lynch had only offered

speculation that the jury relied on the incorrect instructions, he

had not met the required prejudice showing that the error put him

at an actual and substantial disadvantage and infected his entire

trial with error of constitutional dimensions. See id. The court

denied ground one of Lynch's petition. It also denied the claims

of ineffective assistance of counsel as to other decisions on trial

counsel's part.

Lynch sought a COA as to the first ground of his

petition, the due process/jury instruction issue. The district

court stated that there was room for disagreement on whether Lynch

had shown cause for and prejudice from his failure to object to the

instruction, and it allowed the COA "as to the due process ground."

E. Lynch's Due Process Claim

The SJC determined that at least a portion of the jury

charge did contain error, and respondents do not challenge that

determination here. The ultimate dispute on the merits is about

the consequences of the error. The SJC held that "the 'center of

gravity' of the charge plainly rested on the side of the correct

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instruction," and that there was thus not "a substantial likelihood

of a miscarriage of justice." Lynch, 789 N.E.2d at 1061. Lynch,

however, says that the instructions "created the significant

possibility that [he] was erroneously convicted of murder in the

first degree instead of manslaughter." Commonwealth v. Boucher,

532 N.E.2d 37, 40 (Mass. 1989).

Lynch's federal constitutional argument is that the jury

instructions violated due process by effectively relieving the

Commonwealth of the burden of proving malice, an essential element

of the crime of murder. Lynch invokes the rule of In re Winship,

397 U.S. 358 (1970), that "the Due Process Clause protects the

accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he

is charged." Id. at 364; see also Mullaney v. Wilbur, 421 U.S.

684, 704 (1975) ("[T]he Due Process Clause requires the prosecution

to prove beyond a reasonable doubt the absence of the heat of

passion on sudden provocation when the issue is properly presented

in a homicide case.").

II.

A. Standard of Review

We review the district court's denial of habeas relief de

novo. See Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir. 2003).

The standards for review of the federal claim itself are

set forth in the AEDPA: if the claim was "adjudicated on the merits

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in State court proceedings," the AEDPA mandates that the

application for habeas corpus is not to be granted with respect to

that claim unless the state court's adjudication of the claim

satisfies either of two conditions: (1) it "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,"8 or (2) it "resulted in a decision that 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).

There are several important caveats for purposes of this

case. The first is that if the state court finds a claim was

procedurally defaulted at trial, we cannot reach the merits of that

claim unless the petitioner meets the federal habeas standards to

excuse the procedural waiver. The second is that the petitioner

must have properly presented the claim to the state court under the

exhaustion requirement of § 2254(b)(1). And the third is that if

the habeas petition "presents a federal claim that was raised

before the state court but was left unresolved," this court reviews

the claim de novo. Horton v. Allen, 370 F.3d 75, 80 (1st Cir.

8
Further explication of the "contrary to" prong may be found
in Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002). See id. at 26;
see also Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Explication of the "unreasonable application" test may be found in
McCambridge, 303 F.3d 24. See id. at 36; see also Williams, 529
U.S. at 412-13.

-16-
2004). After all, "AEDPA imposes a requirement of deference to

state court decisions, but we can hardly defer to the state court

on an issue that the state court did not address." Fortini v.

Murphy, 257 F.3d 39, 47 (1st Cir. 2001).

B. Procedural Default

The respondents argue that this court should not review

the merits of Lynch's due process claim, because he procedurally

defaulted his challenge to the jury instructions and has not shown

circumstances to excuse the default.

In contrast to the statutory exhaustion requirement, the

procedural default doctrine stems from equitable principles

informed by history, statutes, and judicial decisions. See

McCleskey v. Zant, 499 U.S. 467, 489-90 (1991) (discussing

similarities of doctrines of procedural default and "abuse of the

writ"); Wainwright, 433 U.S. at 81. The procedural default

doctrine consists largely of judge-made rules. See Dretke v.

Haley, 541 U.S. 386, 394 (2004).

Respondents' procedural default argument invokes the rule

that

[i]n all cases in which a state prisoner has
defaulted his federal claims in state court
pursuant to an independent and adequate state
procedural rule, federal habeas review of the
claims is barred unless the prisoner can
demonstrate cause for the default and actual
prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to
consider the claims will result in a
fundamental miscarriage of justice.

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Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also id. at 729-

30 (discussing "independent and adequate state ground doctrine,"

which "applies to bar federal habeas when a state court declined to

address a prisoner's federal claims because the prisoner had failed

to meet a state procedural requirement" (citing Wainwright, 433

U.S. at 81, 87)).

"A state court's decision to find a forfeiture, based on

the defendant's failure to object at trial, is an independent and

adequate ground for decision so long as the state court

consistently applies its contemporaneous objection rule and has not

waived it in the particular case by basing the decision on some

other ground." Horton, 370 F.3d at 80-81; see also id. at 81

(noting that "[t]he SJC consistently enforces the rule that

unpreserved claims are forfeited and enforced the rule in the

instant case" (citations omitted)).

The SJC, expressly noting that the instruction "was not

objected to at trial," reviewed Lynch's jury instructions claim for

"a substantial likelihood of a miscarriage of justice." Lynch, 789

N.E.2d at 1060. Limited review of this sort "does not work a

waiver of the contemporaneous objection requirement." Horton, 370

F.3d at 81.

Because there is an adequate and independent state ground

for the SJC's decision, Lynch's claim on the merits of the jury

instruction issue can only be considered for habeas purposes if

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Lynch meets one of the established exceptions to the bar on federal

habeas consideration of his claim. There can be no serious claim

that this petition falls into the "fundamental miscarriage of

justice" category, see Coleman, 501 U.S. at 750, (assuming the

exception applies in at least certain non-capital cases): Lynch

does not argue that he is "actually innocent" of the underlying

offense, and since Massachusetts does not have the death penalty,

the question of actual innocence of the "aggravating circumstances

rendering the inmate eligible for the death penalty," Dretke, 541

U.S. at 388, does not arise.9 The alternative that remains open to

Lynch is that he must establish "cause and prejudice" with respect

to the procedural default. See Coleman, 501 U.S. at 750.

Here, the district court denied Lynch's habeas petition

on the ground that Lynch failed to object at trial and had failed

to show prejudice, so that an independent and adequate state ground

barred federal habeas review of the due process claim. We prefer

to analyze the case initially on cause grounds.

To establish cause, there must be "some objective factor

external to the defense" which "impeded counsel's efforts to comply

9
Massachusetts sometimes uses the phrase "capital case" to
refer to murder cases, even where the sentence imposed is not a
sentence of death. See, e.g., Mass. Gen. Laws ch. 278, § 33E (for
purposes of review under §33E, "a capital case shall mean a case in
which the defendant was tried on an indictment for murder in the
first degree and was convicted of murder in the first degree");
Commonwealth v. Anderson, 834 N.E.2d 1159, 1172 (Mass. 2005).

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with the State's procedural rule." Murray v. Carrier, 477 U.S.

478, 488 (1986). In some instances, state defense counsel's

ineffectiveness at trial in failing to preserve a claim for review

in state court will suffice to establish such cause. See id. at

487-88. But that ineffectiveness must rise to the level of being

a constitutional violation under Strickland v. Washington, 466 U.S.

668 (1984). See Gunter v. Maloney, 291 F.3d 74, 81, 82 n.2 (1st

Cir. 2002). A habeas petitioner complaining of ineffective

assistance of counsel as a basis to show cause for procedural

default must show (1) "that counsel's representation fell below an

objective standard of reasonableness," Strickland, 466 U.S. at 688,

and (2) that "any deficiencies in counsel's performance [were]

prejudicial to the defense," id. at 692, in that "there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different,"

id. at 694.

The Supreme Court has recently elaborated on the

Strickland prejudice prong. In a case where counsel failed to

present mitigating evidence at sentencing, the Court first employed

an articulation close to the Strickland language, finding that "had

the jury been confronted with this considerable mitigating

evidence, there is a reasonable probability that it would have

returned with a different sentence." Wiggins v. Smith, 539 U.S.

510, 536 (2003). The Court went on to conclude that "[h]ad the

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jury been able to place petitioner's excruciating life history on

the mitigating side of the scale, there is a reasonable probability

that at least one juror would have struck a different balance," id.

at 537, and that "the available mitigating evidence, taken as a

whole, might well have influenced the jury's appraisal of [the

habeas petitioner's] moral culpability," id. at 538 (internal

quotation marks omitted) (quoting Williams v. Taylor, 529 U.S. 362,

398 (2000)).

Importantly, a federal habeas petitioner trying to excuse

his procedural default by showing ineffective assistance of counsel

as cause must first have presented the ineffective assistance claim

to the state court. See Edwards v. Carpenter, 529 U.S. 446, 452-53

(2000); Gunter, 291 F.3d at 81. The Supreme Court has stressed

"the inseparability of the exhaustion rule and the

procedural-default doctrine." Carpenter, 529 U.S. at 452. And so,

a habeas petitioner can default on presenting an ineffective

assistance claim even when the claim is offered as a reason to show

cause and prejudice for his default on a different constitutional

claim. Of course, he can try to show cause and prejudice to excuse

the default of the ineffective assistance claim in order to show

cause and prejudice to excuse his procedural default of the

different constitutional claim he wants to present. Id. at 453.

Lynch does not present such an argument: he says he did present to

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the SJC an ineffective assistance claim on the failure to object to

the jury instructions.

On the question of cause, the respondents make two

arguments which put stumbling blocks10 in the way. The respondents

argue first that Lynch procedurally defaulted on his claim of

ineffective assistance of counsel as to the jury instructions.

Respondents made this procedural default claim for the first time

at oral argument, and their precise argument is unclear. They

twice asserted that Lynch's ineffective assistance of counsel claim

on the jury instructions issue "was never brought up." But they

also stated that Lynch did assert ineffective assistance on the

jury instructions before the SJC, and that the problem occurred in

the trial court, where Lynch failed to include in his motion for a

new trial a specific claim of ineffective assistance of counsel as

10
It is customary to address the procedural default issue on
habeas first, even if that issue may be more complex than simply
turning to the ultimate question, and even when the likely
affirmance on the ultimate question is to uphold the state court
judgment. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(noting that the procedural bar issue ordinarily should be resolved
first); see also Dretke, 541 U.S. at 393-94 (holding that "a
federal court faced with allegations of actual innocence, whether
of the sentence or of the crime charged, must first address all
nondefaulted claims for comparable relief and other grounds for
cause to excuse the procedural default"). The procedural default
rule is logically prior and arguably it is more respectful to the
state to treat the default rule first. See Lambrix, 520 U.S. at
523 ("Application of the 'independent and adequate state ground'
doctrine to federal habeas review is based upon equitable
considerations of federalism and comity."). Still, the
conventional order of analysis, which we follow here, because
respondents have urged us to, itself can add a layer of complexity
and delay.

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to the jury instructions. If it were clear that Lynch did not

include in his ineffective assistance claim to the SJC the failure

to object to the jury instructions, his case would be over.

Respondents' second argument, and the one advanced in

their brief, is that if such an ineffective assistance claim were

presented, the SJC effectively disposed of it on the prejudice

prong when it held that there was not "a substantial likelihood of

a miscarriage of justice." Lynch, 789 N.E.2d at 1061. We accept

neither argument.

On the first argument, it is clear from the record that

Lynch did flatly raise before the SJC an ineffective assistance

claim based on counsel's failure to object to the jury

instructions, and it is clear that the Commonwealth replied

directly to this argument.11 The fact that the SJC failed to

discuss this ineffective assistance claim does not mean Lynch did

not raise it. To the extent respondents say the default occurred

earlier, in Lynch's motion for a new trial, this point was not

raised in the Commonwealth's brief to the SJC, and the SJC did not

11
Lynch's brief to the SJC, in concluding the discussion of
the jury instructions, stated: "Because the correct formula was
stated in [an SJC decision] in 1989, six years before the trial
here, an ordinary fallible lawyer should have objected and
corrected the judge. This failure amounted to ineffective
assistance of counsel, and created a substantial likelihood of
miscarriage of justice." This was followed by a citation to
Lynch's addendum, which contained statements of the law on
ineffective assistance. The Commonwealth's brief to the SJC argued
that there was no ineffective assistance of counsel as to the jury
instructions, and Lynch's reply brief again argued that there was.

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say the claim of ineffective assistance of counsel as to the jury

instructions was foreclosed because of failure to comply with state

procedural rules.12

The second argument raises the question of whether the

SJC, in applying the state rule for unobjected-to jury instructions

and in concluding that there was no "substantial likelihood of a

miscarriage of justice," essentially used the same test as that

under Strickland's prejudice prong.

We reject the second argument for two reasons. First,

the SJC did not purport to do an ineffective assistance analysis on

this point, and second, the two standards (for review of

unpreserved error and for prejudice under Strickland) have not been

shown by respondents to be the same. We reject respondents'

implicit, unelaborated argument that the Strickland prejudice prong

is no more than a miscarriage of justice test. The SJC neither

overtly nor implicitly adjudicated the jury instructions issue as

an ineffective assistance claim.

In Mello v. Dipaulo, 295 F.3d 137 (1st Cir. 2002), we

considered on habeas an unobjected-to jury instruction error and

evaluated whether there was "a probability[,] sufficient to

undermine confidence in the outcome," id. at 142 (quoting

Strickland, 466 U.S. at 688), that the instruction error "could

12
At oral argument, respondents framed the issue only as one
of procedural default and did not invoke the exhaustion requirement
of § 2254(b)(1).

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. . . have affected the verdict the jury returned," id. at 149.

This is the Strickland prejudice standard. See Rompilla v. Beard,

125 S. Ct. 2456, 2469 (2005); Wiggins, 539 U.S. at 538.

In fact, the SJC's standard for ineffective assistance of

counsel, articulated in Commonwealth v. Saferian, 315 N.E.2d 878,

883 (Mass. 1974), is the functional equivalent of the Strickland

standard. See Mello, 295 F.3d at 143-44; Scarpa v. DuBois, 38 F.3d

1, 7 (1st Cir. 1994). The Saferian standard is "whether there has

been serious incompetency, inefficiency, or inattention of counsel

-- behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer -- and, if that is found,

then, typically, whether it has likely deprived the defendant of an

otherwise available, substantial ground of defence." Saferian, 315

N.E.2d at 883.

The standard the SJC did apply in its analysis of the

jury instructions issue was the "substantial likelihood of a

miscarriage of justice" test. But it did not connect its

determination that there was no substantial likelihood of a

miscarriage of justice to a finding on ineffective assistance as to

the jury instructions.

As a pure matter of language, the prejudice prong of

Strickland appears to impose a standard more favorable to

defendants than a "substantial likelihood of a miscarriage of

justice" test. Under Strickland, Lynch must show only that "there

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is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different,"

Strickland, 466 U.S. at 694, as illustrated in Wiggins. See

Wiggins, 539 U.S. at 536-38 (2003) (emphasizing "reasonable

probability that at least one juror would have struck a different

balance"). It may or may not be that the state courts have put a

judicial gloss on their substantial likelihood of a miscarriage of

justice standard, but the respondents have not provided argument or

citation on this point, and, absent that, we are not prepared to

say the state standard is the same as or more favorable than the

Strickland prejudice standard.

Because the SJC did not address the ineffective

assistance issue as to the failure to object to the jury

instructions, we review it de novo. Fortini, 257 F.3d at 47.

As a matter of our independent review, we find no

Strickland error in counsel's failure to object to the jury

instructions. The premise of the ineffective assistance claim is

that the muddled instructions relieved the Commonwealth of its

burden of proof beyond a reasonable doubt on the question of

malice, insofar as the issue was raised of manslaughter by heat of

passion or sudden provocation.

As to the first ineffective assistance prong, whether

counsel's conduct in failing to object "fell below an objective

standard of reasonableness," Strickland, 466 U.S. at 688, we are

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doubtful. "[T]he proper measure of attorney performance remains

simply reasonableness under prevailing professional norms."

Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688)

(internal quotation marks omitted). Lynch has to show that no

competent lawyer would have reasonably permitted these instructions

to be given without objection. See Dugas v. Coplan, 428 F.3d 317,

328 (1st Cir. 2005) (question is "whether, given the particular

facts of this case, [counsel] fell below the constitutional

standard of competence"). He has not made such a showing.

Trial counsel had put evidence of hallucination and

stuporous misunderstanding in front of the jury, through the

testimony of the defendant and his expert, and had suggested that

Lynch lacked malice because this was an accident. There were

repeated strong instructions on the government's bearing the burden

of proof on showing malice, which were correctly stated. It is

true the jury was also incorrectly instructed that the government

had to prove beyond a reasonable doubt that Lynch did act in the

heat of passion or on sudden provocation. This misstates the

government's burden of proof. We cannot say that "any reasonably

competent attorney," Wiggins, 539 U.S. at 525, would have deemed

the instructions so central to his case and so confusing that they

posed a risk to Lynch, absolutely demanding an objection. The main

defense theme was absence of malice due to the defendant's

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alcohol-induced haze, which may have led Lynch to use excessive

force in self-defense.

Moreover, even if counsel's performance were deficient,

we think it extremely unlikely the jury verdict would have been

affected by it. It is very doubtful that the jury misunderstood

the burden of proof as to each element of the case, including

malice. And the defense's main theme rested primarily not on

manslaughter by heat of passion or sudden provocation, but on

Lynch's incapacity to have had the requisite intent because his

alcoholism and mental condition had robbed him of the ability to

have such an intent, including in his own defense. As the SJC

noted, "the 'center of gravity' of the charge plainly rested on the

side of the correct instruction," and the charge, "read as a whole,

could not have been understood to relieve the Commonwealth of its

burden to prove beyond a reasonable doubt every element of the

crime." Lynch, 789 N.E.2d at 1061. The jury almost certainly

rejected Lynch's claim of mitigating circumstances not because the

government failed to prove the mitigating factors, but rather

because the jury believed the government had disproved mitigation

beyond a reasonable doubt. Lynch has not met the Strickland

prejudice standard.

In theory, Strickland attacks (including its own

prejudice prong) go to the separate "cause" as opposed to the

"prejudice" standards for overcoming default. See, e.g., Carrier,

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477 U.S. at 487-88; Horton, 370 F.3d at 83 (because petitioner

failed to establish ineffective assistance of counsel, he had not

demonstrated cause for procedural default); Gunter, 291 F.3d at 81-

82. However, in this circuit, we have held that Strickler v.

Greene, 527 U.S. 263 (1999), requires a finding that if a habeas

petitioner can meet the prejudice standard needed to establish

ineffective assistance under Strickland, then the prejudice

standard under the "cause and prejudice" showing to excuse a

procedural default is also met. Prou v. United States, 199 F.3d

37, 49 (1st Cir. 1999). Prou involved the habeas statute for

prisoners in federal custody, 28 U.S.C. § 2255, but Strickler

itself involved a state prisoner, and the logic of Prou extends to

28 U.S.C. § 2254. We so held in Evicci v. Maloney, 387 F.3d 37

(1st Cir. 2004). See id. at 40; see also Lattimore v. Dubois, 311

F.3d 46, 56 n.7 (1st Cir. 2002). Since Lynch has not met the

prejudice standard under Strickland, he has also not met the

prejudice standard to excuse procedural default.

As a result, we do not reach the merits of the jury

instruction issue, because an adequate and independent state ground

stands in the way. It should be clear, though, that if Lynch

cannot meet the prejudice requirement under Strickland about the

failure to object to the instructional error, he is quite unlikely

to show, were we to reach the question on the merits, that the SJC

was unreasonable in its decision on the merits.

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 III.

The district court's denial of the petition for a writ of

habeas corpus is affirmed.

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