Knight v. Spencer

United States Court of Appeals
For the First Circuit

No. 05-1770

EDWARD KNIGHT,

Appellant,

v.

LUIS SPENCER,

Appellee.

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

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
Lipez, Circuit Judge.

Edward B. Gaffney for appellant.
Daniel I. Smulow, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, Office of the Attorney
General, was on brief for appellee.

May 2, 2006

*
Of the Southern District of New York, sitting by designation.
 CAMPBELL, Senior Circuit Judge. Edward Knight appeals

from the denial of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254(d)(1) in the United States District

Court for the District of Massachusetts. Knight argues that the

Massachusetts Supreme Judicial Court ("SJC") erred in holding,

first, that Knight's Sixth Amendment right to confrontation was not

violated when the state trial court refused to allow him to pursue

a particular area of inquiry during cross-examination of a

prosecution witness, and, second, that Knight's counsel was not

constitutionally ineffective.

I. Background

On December 31, 1996, Knight was indicted in

Massachusetts by the Suffolk County Grand Jury for the murder and

armed robbery of Pasquale Candelino. A jury trial was held in

Suffolk Superior Court, and on June 29, 1998, Knight was found

guilty of armed robbery and first degree murder. He received a

life sentence on the murder conviction, and the armed robbery

conviction was placed on file. On June 30, 1998, Knight appealed.

On July 25, 2000, Knight filed and later supplemented a

motion for a new trial. On May 22, 2001, the Superior Court denied

the motion. On May 30, 2001, Knight appealed from the denial of

his motion for a new trial, and that appeal was consolidated with

the direct appeal from his conviction. Both appeals were rejected

by the SJC. Commonwealth v. Knight, 773 N.E.2d 390 (Mass. 2002).

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 On July 2, 2003, Knight petitioned the federal district

court for a writ of habeas corpus. After a hearing and following

issuance of a comprehensive memorandum, the district court denied

the petition. Knight thereupon filed a notice of appeal and an

application for a Certificate of Appealability. The district court

granted a Certificate of Appealability for the petitioner's

Confrontation Clause and ineffective assistance of counsel claims.

II. Supreme Judicial Court Decision

A state court's factual findings are presumed to be

correct under 28 U.S.C. § 2254(e)(1). See Gunter v. Maloney, 291

F.3d 74, 76 (1st Cir. 2002); Coombs v. State of Maine, 202 F.3d 14,

18 (1st Cir. 2000). The SJC found the following facts in Knight's

case:

Pasquale Candelino was a sixty-one year old man who
resided in the North End section of Boston. In the
afternoon of Saturday, June 22, 1996, his body was found
by his landlord in the bedroom of his apartment. The
apartment had been "ransacked, drawers were open, doors,
cabinet doors were open," and there was blood on the
floor and the walls of the bedroom and bloody
fingerprints inside an open drawer. [FN2. These were
not identifiable.]

The medical examiner conducted an autopsy and
determined that the victim died of multiple stab wounds
to the neck. [FN3. The victim had been stabbed ten
times in the neck.] The state of the body's
decomposition was consistent with the injuries having
been inflicted, and death having occurred, as early as
the previous Wednesday, June 19, 1996. [FN4. The body
"was in an early state of decomposition with green/black
discoloration of the right side of the head and chest,"
and "marbling of the skin and skin slippage and wrinkling
of the forearms."]

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 Knight and his girlfriend, Betsy Kelley, were drug
addicts who supported their habits principally by
shoplifting. They had sold stolen goods to the victim in
the past, and had also purchased pills from him. On
Wednesday evening, June 19, 1996, sometime after 9 P.M.,
they were in the North End looking for money to buy
drugs. Their normal hunting grounds, the malls, were
closed. They saw the victim on the street, and Knight
suggested they rob him. Kelley agreed. She approached
the victim and asked if she could use the bathroom in his
apartment. While Kelley was in the victim's apartment
(and the victim was in his bedroom), Knight rang the door
bell and Kelley let him in.

Knight hid behind the refrigerator in the kitchen.
When the victim came out of his bedroom Knight attacked
him, pushing him back into the bedroom where a struggle
ensued. Kelley remained in the kitchen searching for
drugs and money. Kelley heard the victim saying, "Eddie
what - what are you doing? What are you doing?," and
"Eddie, no." She also heard Knight tell the victim to
"shut the fuck up." After the struggle ended, "It was
just quiet," and Kelley heard "drawers opening." When
Knight came out of the bedroom, he had blood on his
sneakers. Kelley and Knight put drugs and "stuff" from
the victim's apartment in a black bag, then wiped the
door knobs with their shirts as they were leaving. They
went to a friend's apartment, where Knight told Kelley he
had killed the victim.

Late in the evening of the next day, Thursday, June
20, 1996, Knight, Kelley, and two friends left for
Florida on a bus that arrived in Orlando on Saturday
morning, June 22, 1996. Knight and Kelley returned
separately to the Boston area the following week. After
their return, they went to the Boston Public Library and
looked for newspaper accounts of the murder. The
articles they found reported that the police believed the
murder to have occurred on Saturday, June 22, 1996, the
day on which Knight and Kelley arrived in Florida.
Knight told Kelley not to worry, because "they have the
dates wrong."

In September 1996, three detectives came looking for
Kelley at her father's home where she was staying. Her
father was not at home, and she did not answer the door.
After the detectives left, Kelley telephoned her father
and told him that she was in trouble and had been present

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when Knight had killed someone. Her father began
arranging for a lawyer to represent her. Kelley's father
drove her to a friend's house, and she told the friend
what had happened in the victim's apartment on the night
of the murder.

Knight was arrested on December 16, 1996, and was
indicted on December 31, 1996, for murder in the first
degree and armed robbery. The indictment stated that the
victim died "on or about June 21, 1996." Kelley was also
indicted and, as arranged by her lawyer, surrendered to
the police on January 2, 1997. After being held in jail
pending trial for more than one year, Kelley agreed to be
interviewed by detectives and, in January 1998,
negotiated a plea agreement with the Commonwealth. The
agreement required that she testify at Knight's trial and
plead guilty to manslaughter. The Commonwealth agreed to
recommend an eighteen-month sentence, guaranteeing
Kelley's release from prison shortly after Knight's
trial.

When Kelley was interviewed, she told the detectives
that the victim had been robbed and killed on June 19,
1996, before she and Knight went to Florida. Thereafter,
the Commonwealth moved to amend the indictment to change
the date of the murder to "on or about June 19, 1996."
After a hearing, the motion judge allowed the amendment
over Knight's objection.

At trial, the Commonwealth relied primarily on
Kelley's testimony to establish Knight's guilt. The
Commonwealth also introduced evidence of a knife that
police seized from Knight when he was arrested on
unrelated charges on June 27, 1996, five days after the
victim's body was found. The medical examiner's
testimony indicated that the knife was not inconsistent
with the victim's wounds. The defense relied primarily
on the testimony of six witnesses from the victim's
neighborhood who testified that they had seen the victim
at various locations on Thursday, June 20, and Friday,
June 21, when the undisputed evidence demonstrated that
Kelley and Knight were on a bus bound for Florida. [FN5.
The Commonwealth contended that these witnesses saw the
victim often, and were simply mistaken with regard to
when they last saw him.] The defense contended that
Kelley's testimony was a fabrication induced by the
Commonwealth's offer of an eighteen-month sentence and by
her fear of remaining in prison for life if she were

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 convicted. The Commonwealth attempted to rebut this
contention by calling the friend to whom Kelley had
confided the details of the murder in September, 1996,
long before her indictment, arrest, and incarceration.

Knight, 773 N.E.2d at 394-95.

In its opinion, the SJC considered Knight's claims of

trial error, including those now included in Knight's habeas

petition.

Among the latter was Knight's challenge to the ruling by

the trial judge that defense counsel could not, when cross-

examining Betsey Kelley, inquire about the effect upon her of the

guilty verdict in the contemporaneous state trial of Louise

Woodward, a nineteen-year-old British au pair, found guilty of

second-degree murder in the death of an infant in her care. The

judge in Woodward's case had subsequently reduced the jury's

verdict to involuntary manslaughter, vacated her life sentence, and

sentenced her to time served. Knight, 773 N.E.2d at 398, n.9. The

SJC held that the trial judge's ruling excluding reference to

Woodward's case had not violated Knight's constitutional right to

confrontation under the Sixth Amendment to the United States

Constitution and Article 12 of the Declaration of Rights of the

Massachusetts Constitution. Id. The SJC said, inter alia,

[t]he judge did not improperly limit the defense's cross-
examination of Kelley . . . because the jury were
presented with sufficient evidence with which to assess
her bias and credibility. She was extensively cross-
examined about her drug use, prior convictions of
forgery, larceny, and fraud, her plea agreement with the
Commonwealth, and her fears about being convicted of

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 murder and incarcerated for life. In this context, we
conclude that the judge's ruling excluding the minimally
relevant but highly inflammatory line of questions about
the Woodward verdict was not error.

Id. at 399.

The SJC also reviewed certain of Knight's claims of

ineffective assistance of counsel, applying the "substantial

likelihood of a miscarriage of justice" standard applicable in

appeals of first degree murder convictions in Massachusetts. See

Mass. Gen. Laws ch. 278, § 33E. This statutory standard is more

favorable to the defendant than the federal constitutional standard

articulated by the Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984), or the Massachusetts constitutional standard

outlined in Commonweath v. Saferian, 315 N.E.2d 878 (Mass. 1974).

See Commonwealth v. Wright, 584 N.E.2d 621, 624 (Mass. 1992). See

also Mello v. DiPaulo, 295 F.3d 137, 144 (1st Cir. 2002). The SJC

held that Knight's counsel was not ineffective but rather had made

a tactical decision in choosing not to call a seventh alibi

witness; that his failure to attempt to impeach Kelley on her

testimony regarding her use of the phone in the victim's apartment

was not ineffective; and that defense counsel was not ineffective

in putting forward the defense theory that the victim had died on

Friday, June 21 rather than on Wednesday, June 19.

III. District Court's Conclusions

In its April 21, 2005 unpublished memorandum and order,

the district court made the following conclusions about the issues

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in Knight's habeas petition. Regarding the Confrontation Clause

violation alleged to have resulted from denying cross-examination

about the case of Louise Woodward, the court held:

the SJC's decision on the Confrontation Clause was not
contrary to or an unreasonable application of the
principles articulated in Van Arsdall [Delaware v. Van
Arsdall, 475 U.S. 675 (1986)]. The Woodward line of
questioning did not involve a "prototypical form of bias"
like a plea agreement or a sentence reduction, but rather
was aimed at demonstrating that a verdict against another
teenager in an unrelated case caused Kelley to confess to
a crime of which she was innocent. Moreover, the topic
of the Woodward verdict was not necessarily "otherwise
appropriate cross-examination," given its highly
prejudicial nature and the weak showing of relevance made
by the defense.

On the ineffective assistance of counsel claim, the district court

concluded that Knight's counsel had not been ineffective, holding,

among other rulings, that "Knight has not shown that the decision

not to call Danieli [an alibi witness] rendered his counsel non-

functional or deprived him of a fair trial." Regarding the

decision not to cross-examine Kelley regarding her testimony about

using the telephone in the victim's apartment, the district court

concluded that "it was not contrary to or an unreasonable

application of federal law for the SJC to conclude that defense

counsel was not deficient in declining to question Kelley about her

use of the telephone." Defense counsel's failure to object to

Kelley's prior consistent statements was not "'so patently

unreasonable that no competent attorney' would have taken this

approach." Finally, the trial strategy not to emphasize the

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victim's time of death in the closing was "within the bounds of

reasonableness."

IV. Discussion

A. Standard of Review

"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."

Norton v. Spencer, 351 F.3d 1, 4 (1st Cir. 2003). "The

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

prevents a federal court from granting an application for 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." Id. The "contrary to" category "embraces

cases in which a state court decision directly contravenes Supreme

Court precedent." Mastracchio v. Vose, 274 F.3d 590, 597 (1st Cir.

2001) (citation omitted). The "unreasonable application category"

includes cases in which the state court's decisions, while not

"contrary to" relevant Supreme Court precedent, nonetheless

constitute an "unreasonable application" of that precedent. Id.

The Supreme Court has said that "[u]nder 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 the

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[Supreme] Court on a question of law or if the state court decides

a case differently than the [Supreme] Court has on a set of

materially undistinguishable facts." Williams v. Taylor, 529 U.S.

362, 412-13 (2000). The "unreasonable application" analysis,

however, affords relief only if "the state court identifies the

correct governing legal principle from the [Supreme] Court's

decisions but unreasonably applies that principle to the facts of

the petitioner's case." Id. at 413.

A state court need not cite or be aware of Supreme Court

precedents so long as "neither the reasoning nor the result of the

state-court decision contradicts them." Early v. Packer, 537 U.S.

3, 8 (2002). As noted above, determinations of fact issues shall

be presumed correct, and the petitioner must rebut the presumption

of correctness by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).

B. Confrontation Clause

Knight argues in his petition for habeas corpus that it

was a violation of the Confrontation Clause of the Sixth Amendment

to the United States Constitution for the state trial judge to have

denied him the opportunity on cross-examination to inquire of Betsy

Kelley, the chief prosecution witness, whether the guilty verdict

returned by the jury in a much publicized but unrelated

Massachusetts criminal case, Commonwealth v. Woodward, may have led

her into supporting the government's position. See Knight, 773

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N.E.2d at 398, n.9; Commonwealth v. Woodward, 694 N.E.2d 1277

(Mass. 1998). The defense wished to argue that the subsequently

reduced murder verdict in Woodward -- leaving some to believe the

British nanny was wrongly convicted of murdering the infant in her

care -- persuaded Kelley that it was safer for her, even if Knight

and she were innocent, to lie in the prosecution's favor, i.e., to

testify untruthfully that Knight had killed the victim on

Wednesday, June 19, while Kelley was present in the apartment,

rather than to join in Knight's alibi, supported by witnesses, that

the victim was seen still alive on Thursday and on Friday

afternoon, by which times Knight and Kelley had taken a bus to

Florida. Knight's attorney hoped the jury would analogize Kelley

to Woodward, both of them being nineteen years old and unfamiliar

with the legal system. He would argue that, upon hearing of

Woodward's allegedly unjust conviction, Kelley abandoned hope of

prevailing on a truthful defense and opted to go along with the

prosecution in exchange for a highly favorable plea bargain that

ensured her own release soon after Knight's trial.1

The trial judge, however, refused to allow defense

counsel to refer to the Woodward case, ruling it was "very

controversial," "emotionally loaded," and insufficiently relevant.

(In upholding the ruling, the SJC characterized the proposed line

1
Defense counsel told the court he learned of Kelley's
possible concern stemming from the Woodward verdict from Kelley's
attorney.

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of questioning as "minimally relevant but highly inflammatory,"

Knight, 773 N.E.2d at 399.) The trial court ruled that defense

counsel could, however, inquire at length "as to [Kelley's]

concerns and fears about conviction, about incarceration, and

anything of that sort."

The Supreme Court has recognized that "the exposure of a

witness's motivation in testifying is a proper and important

function of the constitutionally protected right of cross-

examination." Delaware v. Van Arsdall, 475 U.S. 674, 678-79 (1986)

(citation omitted). But the Court also noted that

[i]t does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge from
imposing any limits on defense counsel's inquiry into the
potential bias of a prosecution witness. On the
contrary, trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally
relevant.

Id. at 679.

In Van Arsdall, the Supreme Court held that a state court

offends the Confrontation Clause when it prevents the defense from

engaging in:

otherwise appropriate cross-examination designed to show
a prototypical form of bias on the part of the witness,
and thereby "to expose to the jury the facts from which
jurors . . . could appropriately draw inferences relating
to the reliability of the witness."

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475 U.S. at 680 (quoting Davis v. Alaska, 415 U.S. 308, 318

(1974)). Regarding this approach, the First Circuit has stated:

The first question to be asked under the Van Arsdall test
is whether the limitation prejudiced the examination of
that particular witness. In other words, absent the
limitation, would the jury have received a "significantly
different impression" of the witness's
credibility? . . . The second element of the Van Arsdall
test is whether the error was harmless beyond a
reasonable doubt; if so, reversal is not warranted.

DiBenedetto v. Hall, 272 F.3d 1, 10 (1st Cir. 2001) (citations

omitted). Knight argues that the SJC and the federal district

court erred in upholding the trial court's ruling because Knight

was precluded from pursuing an entire line of questioning related

to Kelley's views on the Woodward verdict and as a result was

prevented from addressing the crucial question of why she would

testify against the petitioner if she and he were both innocent of

any wrongdoing. Knight further observes that the prosecution took

unfair advantage of the fact that the defense had not explained

Kelley's reason for testifying against Knight when it argued at

closing that Kelley's testimony was incredible because an innocent

person with a good alibi would not falsely claim to have been

involved in a murder.

The district court was plainly correct that the possible

effect on Kelley of the Woodward verdict could not be said to

involve a "prototypical form of bias,"2 the expression used by the

2
The Random House Dictionary of the English Language (2nd ed.
1987) defines prototypical as the adjectival form of "prototype:"

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Court in Van Arsdall. As the district court found, Knight sought

merely to persuade the jury "that a verdict against another

teenager in an unrelated case caused Kelley to confess to a crime

of which she was innocent." In the present circumstances, this was

scarcely a "prototypical form of bias," such as a plea agreement or

sentence reduction, as in Van Arsdall, where the defense counsel

was wrongly prevented from asking a witness about his agreement to

cooperate with the prosecution in exchange for dismissal of a drunk

driving charge. 475 U.S. at 676.

The claimed relevance of Woodward was that its publicized

jury verdict of second degree murder may have so enhanced Kelley's

fear that she would be convicted of murder and sent away for life

that, notwithstanding her actual innocence, she lied in order to

secure the favorable plea bargain that promised her almost

immediate release. We are not persuaded, however, that the

introduction of Woodward into the case would have given the jury a

significantly different impression of Kelley's credibility.

DiBenedetto, 272 F.3d at 10. Without Woodward, Knight's counsel

was still able to point out the extremely attractive nature of the

plea agreement to one in Kelley's shoes, with its assurance of

nearly instant release, coupled with Kelley's natural worry that if

she depended upon Knight's alibi defense she might still be

"the original or model on which something is based or formed" or
"someone or something that serves to illustrate the typical
qualities of a class, model; exemplar."

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convicted of murder -- all matters on which cross-examination was

expressly allowed. Thus, wholly apart from any impact of Woodward,

the basic components of Knight's challenge to Kelley's credibility

were available. And while Woodward was initially convicted of

second-degree murder, that verdict was almost immediately vacated,

and Woodward herself released, making it less plausible that that

case alone would have explained why an innocent Kelley would have

invented the story she told. To be sure, reference to Woodward

might have offered the defense some added color, but it also raised

the danger of being used as a red herring. The trial judge found

the Woodward case to be "very controversial" and "emotionally

loaded in many different ways," hence, in effect, a potential

detour to confusion of the issues. Van Arsdall, 475 U.S. at 679

(trial judges retain wide latitude to impose reasonable limits on

cross-examination based on concerns about, among other things,

"confusion of the issues . . . or interrogation that is . . . only

marginally relevant."). Given the tenuous materiality of the

Woodward case and its potential for jury confusion, we think the

trial judge's ruling was constitutionally within his discretion.

Knight compares his situation to that in Davis, but the

analogy is unpersuasive. In Davis, the Supreme Court ruled that a

state court had erred when it refused to admit evidence of

potential bias of a prosecution witness in the form of the fact

that the witness was on probation. 415 U.S. at 318. Here,

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however, Knight was permitted to introduce evidence of Kelley's

prior drug dealing and of her plea agreement. The information

about her alleged reaction to the Woodward verdict was not relevant

in the same way, if at all. The Woodward verdict had no role in

the case and had nothing to do with Kelley's past history as a drug

dealer and user.

We think Knight has not demonstrated that the trial

court's ruling constituted an unreasonable application of Supreme

Court law and so violated the Sixth Amendment.

C. Ineffective Assistance of Counsel

Knight also argues that the SJC unreasonably applied

clearly established federal law by failing to accept his claim that

he received ineffective assistance of counsel at trial.

Specifically, he complains about four alleged errors made by his

attorney: (1) counsel's decision not to object to the introduction

of prior consistent statements made by Kelley; (2) counsel's

decision not to call a seventh alibi witness, Phyllis Danieli; (3)

counsel's failure to cross-examine Kelley about using the victim's

telephone; and (4) counsel's argument to the jury concerning the

time of the victim's death.

"A criminal defendant claiming a Sixth Amendment

ineffective assistance of counsel violation must establish that (1)

'counsel's representation fell below an objective standard of

reasonableness' and (2) 'a reasonable probability that, but for

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counsel's unprofessional errors, the result of the proceeding would

have been different.'" Smiley v. Maloney, 422 F.3d 17, 20 (1st

Cir. 2005) (quoting Strickland, 466 U.S. at 684). Under the first

prong of Strickland, there is a "strong presumption" that counsel's

strategy and tactics fall "within the range of reasonable

professional assistance," and courts should avoid second-guessing

counsel's performance with the use of hindsight. Strickland, 466

U.S. at 689.

It is all too tempting for a defendant to second-guess
counsel's assistance after conviction . . ., and it is
all too easy for a court, examining counsel's defense
after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.

Id. It is only where, given the facts known at the time, counsel's

"choice was so patently unreasonable that no competent attorney

would have made it," that the ineffective assistance prong is

satisfied. Under the prejudice prong, not all errors by counsel

are sufficient to meet the standard of a reasonable probability

that, but for the counsel's errors, the result of the proceeding

would have been different. Id. at 693-94. Rather, "'[a]

reasonable probability is a probability sufficient to undermine

confidence in the outcome.'" Smiley, 422 F.3d at 20 (quoting

Strickland, 466 U.S. at 694). This is a "highly demanding" and

"heavy burden." Williams, 529 U.S. at 393. A defendant's failure

to satisfy one prong of the Strickland analysis obviates the need

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for a court to consider the remaining prong. Strickland, 466 U.S.

at 697.

This Circuit has held that where the SJC applies its more

favorable "substantial likelihood of a miscarriage of justice"

standard, its decision will not be deemed to be "contrary to" the

Strickland criterion:

[T]he SJC rejected [the petitioner's] ineffective
assistance of counsel claims under a "substantial
likelihood of a miscarriage of justice" standard that the
SJC says is more favorable to a defendant than the
Saferian standard, which we have said is the functional
equivalent of the Strickland standard. We therefore
conclude that the SJC applied a standard of ineffective
assistance of counsel that is at least as favorable to
[the petitioner] as the federal standard.

Mello v. DiPaulo, 295 F.3d 137, 144 (1st Cir. 2002).

To warrant habeas relief under the unreasonable

application standard, Knight must show that the counsel's work fell

below an objective standard of reasonableness and that but for the

ineffective assistance, the outcome of the case would have been

different. Knight has not made a showing regarding the first prong

with respect to any of his four ineffective assistance claims, so

we do not reach the second prong of the analysis.

i. Failure to Object to Prior Consistent Statements

Knight argues that his counsel should have objected to

the admission of testimony by Kelley stating that she had told her

father and another person, two months after the victim's death,

that she had been present when Knight had killed someone. Knight

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argues that these were prior consistent statements that were

inadmissible, but the SJC found that Knight was going to try to

impeach Kelley and that her statements were, therefore, admissible

to defend against the argument of recent contrivance. Knight, 773

N.E.2d at 399-400 (quoting Commonwealth v. Saarela, 383 N.E.2d 501

(Mass. 1978)). To the extent that Knight argues on appeal that the

SJC erred in affirming the admission of the statements, that claim

does not warrant federal habeas review because the SJC, which has

the final word on questions of Massachusetts state law, affirmed

their admission on the basis of state law. See Estelle v. McGuire,

502 U.S. 62, 67-68 (1991). Knight's counsel could not have

rendered ineffective assistance in failing to object to alleged

errors of state evidentiary law that were either non-prejudicial or

nonexistent. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999)

("failing to pursue a futile tactic does not amount to

constitutional ineffectiveness"), cert. denied, 528 U.S. 1163

(2000). Therefore, Knight's counsel was not ineffective when he

failed to object to the admission of the prior consistent

statements.

ii. Failure to Introduce Testimony of Phyllis Danieli

Knight argues that his counsel acted ineffectively by

failing to call Phyllis Danieli as a witness to testify that she

had seen the victim alive the day before his body was discovered --

while Knight was on a bus to Florida. Danieli had a distinct

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memory of seeing the victim alive because he invited her to stop by

his apartment that evening, and the next day, when she learned of

his death, she realized that if she had accepted his invitation,

she too might have been murdered. However, Danieli, herself a drug

user, was unable to recall the exact date she had seen the victim.

The SJC ruled that Knight's trial counsel's decision was

strategic because Danieli's testimony was both cumulative of six

other witnesses who said they had seen the victim before his body

was discovered and also subject to severe impeachment because she

had been arrested previously, had bought and used drugs immediately

after having coffee with the victim, and could not remember the

date when she last saw the victim other than it was June. Knight,

773 N.E.2d at 402. Knight argues that while the other witnesses

were subject to attacks on cross-examination because they had seen

the victim daily for years and could not distinguish one day from

the next, Danieli had not seen the victim for many years and had

particular reason to remember the occasion because she realized she

might have been present at what became the murder scene. Knight

dismisses her potential credibility problems on the grounds that

"her failure to remember the precise date (six months after the

fact) was immaterial" and that the credibility of drug users was an

issue throughout the case since the government's primary witness,

Kelley, was herself a drug user.

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 As noted, however, counsel's performance is strongly

presumed to fall within the range of reasonable professional

judgment. Counsel was able to see and assess the likely demeanor

and appearance of potential witnesses. Since Knight had called six

alibi witnesses, and since Danieli was open to significant

impeachment, it was appropriate for the SJC, and then the district

court, to conclude that the trial counsel's decision was a tactical

one rather than the result of ineffective assistance. The SJC's

decision was an "appropriate application of Strickland's insistence

on the 'wide latitude counsel must have in making tactical

decisions.'" Horton v. Allen, 370 F.3d 75, 86-87 (1st Cir. 2004),

cert. denied, 543 U.S. 1093 (2005) (SJC reasonably applied

Strickland when it determined that counsel was not ineffective for

failing to call several witnesses; upholding denial of habeas

petition).

iii. Failure to Impeach Kelley with "Telephone

Testimony"

Knight argues that his counsel was ineffective for

failing to impeach Kelley's inconsistent testimony regarding the

victim's telephone. Kelley testified that, despite having been

careful to leave no fingerprints in the apartment, she did pick up

the telephone, dial an automatic weather service, and then hide the

phone under some clothes without turning it off. These statements

might have been designed to explain why the victim's phone was "off

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the hook" when the landlord tried to reach him, and this

explanation was cited by the government as evidence of Kelley's

credibility. Knight now argues that his lawyer failed to introduce

evidence that if Kelley had turned the phone on on Wednesday

evening, the phone battery would have long since expired by

Saturday afternoon, and the landlord's incoming calls would have

been met by a ring, not by a busy signal. The SJC found that

Kelley was not sure whether she had turned off the telephone; that,

assuming she had left the telephone on, there was no probative

evidence that the phone's battery would have been dead by Saturday

afternoon; and that there was no evidence that the victim's phone

would generate a ring instead of a busy signal when the telephone

battery died. Knight, 773 N.E.2d at 402-04. In the absence of

clearer evidence on this issue, it was not an unreasonable

strategic decision by Knight's counsel not to seek to impeach

Kelley about the telephone. If she was unsure about whether she

had actually turned off the phone, there would be little point to

try to prove the battery would have been dead. Additionally,

Knight's appellate counsel conducted an experiment to try to prove

that the battery would have been dead, but "[t]he telephone used in

the experiment was not the actual phone that was found in the

victim's apartment, nor [wa]s it clear whether the telephone used

in the experiment was even the same type or was similar in any

respect to the telephone in the victim's apartment." Knight, 773

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N.E.2d at 402-03. Defense counsel at trial also notably did

examine Kelley on a number of issues, including her drug use, prior

convictions, and her plea agreement. "When counsel focuses on some

issues to the exclusion of others, there is a strong presumption

that he did so for tactical reasons rather than through sheer

neglect." Yarborough v. Gentry, 540 U.S. 1, 8 (2003). Thus,

Knight's ineffective assistance claim fails on this point.

iv. Failure to Argue Effectively the Physical Evidence

Relative to the Time of Death

Knight argues that his trial counsel failed to make

sufficiently detailed and convincing arguments in support of the

point that the state of the victim's body was consistent with

death's having occurred on Friday night rather than earlier on

Wednesday night. Counsel notes various aspects of the medical

examiner's testimony which, had they been called to the jury's

attention during closing argument, would or might have created a

stronger case for the proposition that death had not occurred until

the time consistent with the defense's alibi evidence.

The right to effective assistance extends to closing

arguments, but counsel is allowed wide latitude with regard to

"which issues to sharpen and how best to clarify them."

Yarborough, 540 U.S. at 5. The Supreme Court has made it clear

that:

counsel has wide latitude in deciding how best to
represent a client, and deference to counsel's tactical

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 decisions in his closing presentation is particularly
important because of the broad range of legitimate
defense strategy at that stage. Closing arguments should
sharpen and clarify the issues for resolution by the
trier of fact, but which issues to sharpen and how best
to clarify them are questions with many reasonable
answers.

Id. (internal quotations and citations omitted). Courts are thus

hesitant to find that an attorney's decision to leave out reference

to particular aspects of the case in closing argument constitutes

ineffective assistance. Id. The closing must also be viewed in

the context of the entire proceeding. See, e.g., Bell v. Cone, 535

U.S. 685, 699-702 (2002) (analyzing attorney's decision not to make

a summation in relation to nature and timing of the expert

witnesses' testimony). In the instant case, the SJC found "very

effective" the cross-examination of the medical examiner by

Knight's counsel, Knight, 773 N.E.2d at 403-04, and the district

court wrote that, "[g]iven this admonition [in Yarborough], and the

defense counsel's detailed cross-examination of the medical

examiner as to the victim's time of death, the SJC properly applied

the Strickland presumption that the trial strategy was within the

bounds of reasonableness." Given the wide latitude of discretion

available to defense counsel to conduct the defense in the manner

of his or her own choosing, counsel's summation of the time of

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death evidence cannot be said to have established ineffective

assistance within Strickland.3

v. Cumulative Error

Knight finally argues that the cumulative effect of his

trial attorney's purported errors resulted in his receiving

constitutionally deficient representation. As the government

observes, he did not make this argument in state court, before the

district court, or in his motion for a certificate of

appealability. The issue is therefore not exhausted pursuant to 28

U.S.C. § 2254(b)(1)(A) and is not properly before this Court.

Feliciano v. Rullan, 378 F.3d 42, 49 (1st Cir. 2004), cert. denied,

534 U.S. 1054 (2005) ("It is a bedrock rule that when a party has

not presented an argument to the district court, [he] may not

unveil it in the court of appeals") (internal quotations omitted,

alteration in original).

We add, without deciding, that even were the argument of

cumulative effect properly before us, it would be an uphill battle

for appellant. See United States v. Franklin, 321 F.3d 1231, 1241

n.4 (9th Cir. 2003) (no individual errors, hence no cumulative

error).

Affirmed.

3
We note that our review of this issue is further limited by
the absence of the relevant state court transcripts. Cruz-Sanchez
v. Rivera-Cordero, 835 F.2d 947, 949 (1st Cir. 1987) ("Appellant
has the responsibility of including in the appellate record all
trial materials upon which he intended to rely.")

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