United States Court of Appeals
For the First Circuit
________________
No. 07-1526
JOHN DELANEY,
Petitioner/Appellant,
v.
LINDA BARTEE, SUPERINTENDENT,
SOUZA BARANOWSKI CORRECTIONAL FACILITY,
Respondent/Appellee.
_________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
_____________________
Before
Boudin, Chief Judge.
Wallace,* Senior Circuit Judge,
and Howard, Circuit Judge.
____________________
David J. Nathanson, Committee for Public Counsel Services, for
petitioner/appellant.
Jonathan M. Ofilos, Assistant Attorney General, and Martha
Coakley, Attorney General, on brief, for respondent/appellee.
April 4, 2008
*
Of the Ninth Circuit, sitting by designation.
WALLACE, Senior Circuit Judge. John Delaney appeals from the
district court’s order denying his habeas corpus petition. He
argues that the prosecutor violated his constitutional rights under
Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision
to remain silent after arrest. The district court held that his
claim was procedurally defaulted under the Massachusetts
contemporaneous objection rule and therefore not subject to habeas
review. On appeal, Delaney argues (1) that his claim was not
procedurally barred, and (2) that the state court’s decision on the
merits was contrary to or an unreasonable application of Supreme
Court law. Delaney presents a colorable argument as to each of
these claims. But the decisive issue before us is whether he has
failed to demonstrate that the prosecutor’s comments “had
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)
(internal quotation marks omitted), quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946).
I
On Friday, October 18, 1996, Delaney was delivering packages
to an office building in downtown Boston. As he entered the lobby
of the building, he collided with John Henderson, and the two men
began arguing. As Delaney made his way to the elevator, the
argument escalated and a physical altercation ensued inside the
closed elevator. At some point, as the elevator rose to the 37th
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floor, Delaney drew a knife and stabbed Henderson several times.
When the elevator came to a stop and the doors opened, Henderson
stumbled out and called for help, while Delaney rode the elevator
back down and left the building.
When Delaney returned to his vehicle, he took off his jacket,
and threw it in the back. When his co-worker, who was waiting in
the vehicle, asked him what happened, Delaney did not mention the
fight. Instead, he lied and said that he was unable to deliver the
packages because the intended recipient was unavailable. That
evening, Delaney retreated to an island in Boston Harbor where he
camped-out for the night and disposed of his knife. He returned to
work the following Monday. When his supervisor, who had seen news
coverage of the attack, asked him if he knew anything about the
stabbing, he claimed to know nothing. He came to work again on
Tuesday, but then called in sick for the following three days, and
avoided the usual places he spent his time.
Delaney was eventually arrested and charged in state court
with armed assault with intent to murder, and assault and battery
by means of a dangerous weapon. He testified in his own defense.
On cross-examination, the prosecutor questioned Delaney about his
failure to produce the knife used in the attack. The following
exchange took place:
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Q: . . . you don’t have [the knife] here; do you?
A: I wasn’t requested to bring it. This is the first I’ve
heard.
Q: That’s the first you’ve heard?
A: Of it being requested.
Q: But you knew it was important; right?
A: Yes.
Q: And you pretty much knew that I’d be asking about it;
wouldn’t I?
A: But you never did.
Q: So you and I have never had conversation until today;
have we?
A: About the knife, no.
Q: Or anything.
A: No. We’ve had conversations.
Q: Besides saying “hello.”
A: Besides saying “hello,” nothing detailed, I don’t think,
that I remember, except for in the courtroom.
Q: I’ve never spoken to you outside –
A: You have spoken to me but not lengthy conversation.
Q: Except to say “hello”; right?
A: Pretty much. Pretty much.
Q: You wouldn’t have told me where the knife was anyway;
would you?
A: I just did.
Q: You wouldn’t have told me if I asked you; would you?
A: I just did.
At the conclusion of trial, the jury convicted Delaney of armed
assault with intent to kill, a lesser included offense of that
originally charged, as well as assault and battery by means of a
dangerous weapon. Delaney filed a motion for new trial in the
state trial court. The court denied his motion, and Delaney
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appealed, first to the Massachusetts Appeals Court and ultimately
to the Massachusetts Supreme Judicial Court (SJC). On appeal, he
argued that the prosecutor violated his due process rights by
commenting on (1) his failure to provide evidence to the police and
(2) his unwillingness to speak with the government after his
arrest. The SJC affirmed his conviction, holding in part:
The defendant contends that the prosecutor’s
cross-examination improperly questioned him about his
postarrest silence, his failure to provide the police
with the knife, and his failure to provide the police
with his own photographs of the bite mark on his
shoulder. No timely objections were made. With respect
to the defendant’s postarrest silence, it was defense
counsel-not the prosecutor-who elicited the defendant’s
testimony that he had refused to talk to the police. The
prosecutor’s questions went to the issue whether the
defendant had ever spoken with the prosecutor, an inquiry
that was justified by the defendant’s testimony giving
the erroneous impression that they had spoken before
trial.
With respect to the defendant’s failure to produce
two items of physical evidence (the knife and the
photographs), both questions were improper. . . . We are
satisfied that these two improper questions did not
materially influence the verdicts. Commonwealth v.
Alphas, supra, quoting Commonwealth v. Freeman, 352 Mass.
556, 564, 227 N.E.2d 3 (1967).
Commonwealth v. Delaney, 442 Mass. 604, 616 (2004). In 2005,
Delaney filed a petition for a writ of habeas corpus in the United
States District Court for the District of Massachusetts. The court
denied his petition, but granted a limited certificate of
appealability.
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II
We review the district court’s denial of Delaney’s habeas
petition de novo. See Aspen v. Bissonnette, 480 F.3d 571, 573 (1st
Cir. 2007). To the extent the SJC reached the merits of Delaney’s
claim, we review to determine whether its decision “was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).
The prosecutor asked Delaney four questions that were
potentially problematic under Doyle. The first two questions dealt
with Delaney’s failure to show his knife and a photograph of his
shoulder to the police. The prosecutor’s questions were: “You
never showed [the knife] to the police?” and “You didn’t show them
that photograph that you had taken five days after the incident;
did you?” The SJC held that these two questions were improper, but
deemed them procedurally barred under the Massachusetts
contemporaneous objection rule, because Delaney failed to object
and the questions did not create “a substantial risk of a
miscarriage of justice.” Commonwealth v. Alphas, 430 Mass. 8, 13
(1999). Delaney does not contest this holding.
The only two questions at issue, then, are those posed by the
prosecutor immediately after an exchange with Delaney regarding the
extent of their interactions before trial. Delaney began the
exchange by insinuating that he and the prosecutor had spoken
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before trial. After Delaney admitted that the two had never held
a substantive conversation outside of the courtroom, the prosecutor
continued, and asked; “[y]ou wouldn’t have told me where the knife
was anyway; would you?” and “You wouldn’t have told me if I asked
you; would you?” Delaney contends that these questions were a
direct comment on his post-arrest and post-Miranda silence.
A.
The district court concluded it should not review Delaney’s
constitutional claims as to the two questions above. The court
held that because the SJC denied Delaney’s claims as procedurally
defaulted under the Massachusetts contemporaneous objection rule,
its holding was based on an “independent and adequate state
ground,” which precluded habeas review. See Coleman v. Thompson,
501 U.S. 722, 734-35 (1991). Delaney argues that the district
court was mistaken, because the SJC actually reached the merits of
his constitutional claims, and its holding was therefore subject to
habeas review.
The SJC began its procedural default analysis by stating that
Delaney had failed to make a timely objection to any of the
prosecutor’s questions at issue. See Delaney, 442 Mass. at 616.
As discussed earlier, the SJC concluded that the first two
evidentiary questions (about the knife and photograph) were
improper, but they were procedurally defaulted because (1) Delaney
had not objected, and (2) the questions did not create “a
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substantial risk of a miscarriage of justice.” See id. at 615,
citing Alphas, 430 Mass. at 13. The SJC’s treatment of the other
two questions, the only questions before us on appeal, was quite
different. Rather than making an error determination and
proceeding to the next step of whether that error posed a
“substantial risk of a miscarriage of justice,” the SJC held that
there was never an error in the first place. The SJC concluded
that the prosecutor’s questions were a fair response to Delaney’s
misleading statements about their earlier conversations. Id. at
616.
Delaney argues that the SJC’s decision goes to the merits of
his constitutional claims, or at least does not “clearly and
expressly” rely on the state procedural bar to dismiss them. See
Harris v. Reed, 489 U.S. 255, 266 (1989). In Harris, the state
court opened its analysis by pointing out that the defendant’s
claim could have been raised earlier in the proceedings. The
Supreme Court held, however, that because the state court went on
to consider expressly the merits of the defendant’s claim, it had
not “clearly and expressly” relied on the state procedural bar, and
habeas review was proper. Id. This is arguably analogous to the
facts before us.
On the other hand, the government contends that the SJC’s
determination was merely one step in the court’s procedural default
analysis. Under the Massachusetts contemporaneous objection rule,
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if a defendant does not timely object to an error at trial, the
court will extend appellate review only if the alleged error
creates a “substantial risk of a miscarriage of justice.” Alphas,
430 Mass. at 13. The court determines whether this “substantial
risk” is present by considering whether the error “materially
influenced” the guilty verdict. Id. This determination requires
the court to consider, among other things, the strength of the
government’s case and the nature of the error in question. The
government argues that the SJC was merely applying this
“substantial risk” framework to the procedural default question
when it determined that the prosecutor’s comments were proper.
Thus, the SJC was really relying on the procedural default
argument, and only discussed the merits insofar as they related to
the procedural rule regarding contemporaneous objection. There is
some appeal to this argument, as it would seem that a court
implicitly concludes there is a lack of “substantial risk of a
miscarriage of justice” when it holds that there was no error to
begin with.
Nevertheless, we concede, as Delaney argues, that the SJC’s
decision may not have “clearly and expressly” relied on the
procedural default rule, as required by Harris, in dismissing his
claims. We will not need to resolve this issue, however, if
Delaney has failed to demonstrate that the comments were
sufficiently prejudicial.
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B.
Delaney next argues that the SJC’s decision on the merits of
his claim was “contrary to, or involved an unreasonable application
of, Federal law.” 28 U.S.C. § 2254(d)(1). The SJC concluded that
the prosecutor’s questions were proper, because they were
“justified by the defendant’s testimony giving the erroneous
impression that they had spoken before trial.” Delaney, 442 Mass.
at 616. Both parties agree that Doyle and its progeny allow a
prosecutor to comment on a defendant’s post-arrest silence if the
defendant falsely suggests that he cooperated with the authorities.
See Kibbe v. DuBois, 269 F.3d 26, 40 (1st Cir. 2001) (Lynch, J.
concurring); United States v. Fairchild, 505 F.2d 1378, 1382-83
(5th Cir. 1975). The parties disagree, however, as to whether the
prosecutor, in fact, was responding to Delaney’s comments about
their pre-trial conversations when he asked “[y]ou wouldn’t have
told me where the knife was anyway; would you?” and “[y]ou wouldn’t
have told me if I asked you; would you?”
It appears that any confusion about the pre-trial
conversations was cleared up when Delaney admitted that he had not
spoken with the prosecutor beyond saying “hello.” The prosecutor’s
two follow-up questions seem less like an effort to clear the
record, and more like a comment on Delaney’s intransigence and
refusal to answer questions directly. Once more, however, we need
not reach the question of whether the SJC’s decision represented an
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“unreasonable” application of federal law, see Williams v. Taylor,
529 U.S. 362, 411 (2000), if Delaney has failed to demonstrate
sufficient prejudice to warrant granting his petition.
C.
This brings us to the critical issue before us. The Supreme
Court recently made it clear that we review a habeas petitioner’s
claims of constitutional error in a state criminal trial for
prejudice under a “substantial and injurious effect standard.” See
Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007), citing Brecht, 507
U.S. 619. Under the Brecht standard, we must determine whether the
constitutional errors complained of by Delaney had a “substantial
and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 631.
Delaney’s entire claim rests on two questions posed by the
prosecutor on cross-examination. These allegedly improper
questions, at most, would have raised an inference that Delaney had
a guilty conscience. The jury heard extensive evidence, however,
that Delaney actively engaged in a cover-up after the assault,
which was relevant to the guilty conscience issue. In particular,
the jury heard evidence (1) that he lied about the incident to his
co-workers and supervisors, (2) that he attempted to conceal his
presumably bloody jacket, (3) that he spent the night after the
attack camping-out on an island in Boston Harbor, (4) that he
disposed of his knife on that island, and (5) that he avoided the
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places he usually spent time when he suspected the police were
looking for him. Given this overwhelming evidence of a guilty
conscience, we conclude that the two additional questions posed by
the prosecution did not have “a substantial and injurious effect or
influence in determining the jury’s verdict.” See id.
Thus, regardless of whether he defaulted on claims due to the
Massachusetts contemporaneous objection rule, or whether the state
ruling was contrary to or an unreasonable application of federal
law, Delaney is not entitled to habeas corpus relief. This follows
because he has not been able to show prejudice under Brecht, an
indispensable habeas requirement.
The district court’s denial of Delaney’s petition is AFFIRMED.
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