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Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1321
KENYATTI JORDAN,
Petitioner, Appellant,
v.
THOMAS REILLY, Attorney General
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Schwarzer,* Senior District Judge.
Robert L. Sheketoff, for appellant.
Maura D. McLaughlin, Assistant Attorney General, with
whom Thomas F. Reilly, Attorney General, was on brief, for
appellee.
November 14, 2006
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. Kenyatti Jordan appeals the
denial of his habeas corpus petition. In his petition, Jordan
claimed that (1) incriminating statements he made to police were
subject to a proffer agreement and therefore admitted in error or,
in the alternative, were given involuntarily due to deception, and
(2) the restrictions placed by the state trial court on his
questioning of two witnesses violated his constitutional rights.
The district court denied the petition; as Jordan has not shown
that the state court’s decision was contrary to or an unreasonable
application of federal law, or based on an unreasonable
determination of the facts, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On February 21, 1994, Joseph Dozier was shot and killed in
Boston, Massachusetts. Although police suspected that Kenyatti
Jordan was involved in the shooting, they did not file any charges
at that time. In 1996, while on probation for unrelated crimes,
Jordan worked as an informant for various state and federal
agencies. Due to unrelated arrests, Jordan was scheduled to have
his probation revoked in early 1997. In an effort to retain
Jordan’s assistance, federal agents contacted the state police and
offered Jordan’s aid in investigating the Dozier murder in exchange
for intervention in the probation revocation hearing.
On January 9, 1997, a meeting was held at the United States
Attorney’s office in Boston. The participants were Jordan, two
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Boston police detectives, Herbert Spellman and Paul Joyce, two
federal agents, Steve Mitchell and Domenic Colameta, and Assistant
United States Attorney George Vien. Vien prepared a proffer letter
for Jordan, which provided that the U.S. Attorney would not use any
truthful statements that Jordan made against him but could conduct
further investigation based on those statements. The Boston
detectives did not say anything about the letter, and the state
trial judge found that they believed the letter had no effect on
state court proceedings.
The two detectives then took Jordan to a separate room to be
interviewed, telling the federal agents that they could not
participate. There, Detective Spellman told Jordan that there
would be no promises about the interview, and that anything Jordan
said would be relayed to the district attorney. Spellman then
Mirandized Jordan, whereupon Jordan left the room to talk to the
federal agents about the lack of immunity. Mitchell went into the
interview room and spoke to Spellman, who told Mitchell that only
the district attorney could grant immunity. Mitchell then left the
room and told Jordan to go back in and tell the truth. On
returning to the interview room, Jordan told Spellman that he had
arrived at and fled the scene of the Dozier murder with Antonio
Jones, who was another suspect in the Dozier murder, but that Jones
had shot Dozier while Jordan remained far away.
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During two subsequent interviews with the detectives, at each
of which Jordan was given Miranda warnings, Jordan changed his
story, admitting that he stood next to Jones during the shooting.
Based on this admission and the observations of an eyewitness who
saw two men stand side by side and both shoot Dozier, Jordan was
arrested and charged with Dozier’s murder.
Jordan moved to suppress all three sets of his statements to
police, arguing that the proffer letter applied to the interview
with the Boston detectives, or in the alternative, that because of
deception on the part of the detectives, those statements were
given under duress and involuntary. The trial judge denied the
motion, finding, among other things, that the interview was non-
custodial and non-coercive, that Jordan was fully aware of his
Miranda rights, was alert and lucid, and knew the letter did not
provide protection against the use in state court of anything he
might say at the interview. The judge concluded that Jordan’s
statement to the detectives was a “product of his free will and
rational intellect and was voluntary.”
At trial, Jordan sought to demonstrate that the Boston and
federal investigators acted purposefully to deceive him into making
incriminating statements. During his cross-examination of
Detective Spellman, Jordan asked, “[w]as it your concern that in
the privacy of this meeting when you started to discuss Miranda
issues that [the Federal agents] might object to Jordan’s
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testimony?” The prosecution objected to the question, and the
trial court sustained the objection. On direct examination, Agent
Mitchell testified about his conversation with the detectives
regarding Jordan’s lack of immunity. The prosecution objected, and
the trial court struck the answer. A jury found Jordan guilty of
first degree murder, based on premeditation and extreme atrocity or
cruelty, and unlawful possession of a firearm.
On appeal, the Massachusetts Supreme Judicial Court (SJC)
affirmed the conviction. It upheld the denial of the motion to
suppress, holding that the trial judge’s factual findings were
supported by the evidence and consistent with prior case law. The
court also found no abuse of discretion in the trial court’s
exclusion of testimony. The court held that the question posed to
Spellman was cumulative and only marginally relevant, and that
Jordan was able to extensively question Spellman regarding
potential bias. Similarly, it held that Mitchell’s testimony was
cumulative regarding voluntariness, and the conversation in
question was never relayed to Jordan.
Jordan then filed a petition for writ of habeas corpus in the
district court. Though troubled by the facts, the court denied the
petition in a careful and detailed ruling, concluding that while
there were two plausible versions of the facts, the evidence was
sufficient to affirm the version adopted by the state courts, from
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which one could reasonably conclude that Jordan’s waiver was made
knowingly and voluntarily.
LEGAL STANDARD
This court reviews a district court’s denial of a petition for
habeas corpus de novo. Obershaw v. Lanman, 453 F.3d 56, 59 (1st
Cir. 2006), rehearing denied (1st Cir. July 26, 2006). Because
Jordan’s petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254, the district court was correct in applying that Act. Under
AEDPA, a federal court can grant habeas relief only where a state
court adjudication
(1) 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; or (2) . . . was based on an
unreasonable determination of the facts in
light of the evidence presented in the state
court proceeding.”
28 U.S.C. § 2254(d)(1)-(2). The state court’s factual
determinations are entitled to a presumption of correctness, which
must be rebutted by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); see also Obershaw, 453 F.3d at 59.
DISCUSSION
Jordan’s principal argument is that the Boston detectives were
bound by the proffer letter given by the federal prosecutor. The
proffer agreement had been made before Detective Spellman
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questioned Jordan. Jordan argues that, because states are bound
by federal law, the federal prosecutor’s promise of use immunity is
binding on the state authorities. For support, he cites Murphy v.
Waterfront Comm’n, 378 U.S. 52 (1964). Murphy held in substance
that if a witness is given state immunity and compelled to give
potentially incriminating testimony in state proceedings, he must
likewise be immunized from use of that testimony in federal
proceedings. Id. at 79. But Murphy gives no comfort to Jordan.
Jordan was not under compulsion to testify in either jurisdiction.
Thus his claim of being whipsawed is without substance. Even
assuming an argument for extending Murphy could be made in this
case, the standard of review contained in AEDPA makes this argument
hopeless.
The second string to Jordan’s bow is his contention that his
statements to the detectives could not have been found to have been
voluntarily made. That is because, according to Jordan, he
reasonably believed that the assurance from the assistant United
States attorney that anything he said could not be used against him
carried over to his interview with the Boston detectives. But here
his argument runs squarely into AEDPA. Under AEDPA, habeas relief
is precluded unless the state court adjudication 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)(2).
Moreover, a state court determination of factual issues “shall be
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presumed to be correct” unless petitioner rebuts the “presumption
of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). Jordan has offered no evidence that the state
court’s determination was unreasonable, much less clear and
convincing evidence that the court’s factual finding of
voluntariness was incorrect.
Finally, Jordan contends that he was denied due process when
the trial court restricted his cross-examination of Detective
Spellman, and struck one of Agent Mitchell’s statements on direct
examination.
The SJC held that the trial court’s restriction of Spellman’s
cross examination was not error. Jordan argues that this holding
is an unreasonable application of Supreme Court law as stated in
Washington v. Texas, 388 U.S. 14 (1967). But this is not a case
where the court’s ruling “significantly undermined fundamental
elements of the defendant’s defense.” United States v. Scheffer,
523 U.S. 303, 315 (1998) (citing Washington, 388 U.S. at 23), or
barred all inquiry into an area of possible bias or motive. See
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Rather, as the
SJC found, at trial Jordan was able to cross-examine Spellman
extensively. The objection to a single question of doubtful
relevance did not implicate Jordan’s constitutional rights. See
also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)
(“[T]he Confrontation Clause guarantees an opportunity for
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effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish.”).
With respect to the Mitchell testimony, the SJC found that the
statements at issue were not made in Jordan’s presence or conveyed
to him. Thus, they had no bearing on the voluntariness of Jordan’s
statements. The SJC determined that the trial judge did not abuse
his discretion in striking the testimony, and Jordan has not
demonstrated that his due process rights were violated.
Affirmed.
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