John v. Russo

United States Court of Appeals
For the First Circuit

No. 06-2594

DWIGHT JOHN,

Petitioner, Appellant,

v.

LOIS RUSSO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,

and Oberdorfer,* Senior District Judge.

James W. Lawson, with whom Oteri & Lawson, P.C. was on brief
for petitioner.
Jonathan M. Ofilos, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General was on brief for
respondent.

April 2, 2009

*
Of the District of Columbia, sitting by designation.
 HOWARD, Circuit Judge. Dwight John appeals from the

district court's denial of his habeas corpus petition. John was

convicted in Massachusetts Superior Court (state trial court) of

first-degree murder of Lezmore Buffong1 and is serving a sentence

of life imprisonment. The conviction was affirmed by the

Massachusetts Supreme Judicial Court (SJC). Commonwealth v. John,

812 N.E.2d 1218 (Mass. 2004). John argues that the federal court

erroneously denied his petition because his conviction was based on

a confession for which he had been granted informal immunity. We

reject this claim and affirm the district court's denial of the

petition.

I. Facts

The following discussion of the facts is based on the

state court record. See Teti v. Bender, 507 F.3d 50, 53 (1st Cir.

2007).

A. John's involvement with the Poison Clan gang

John was a founding member of the Poison Clan, a gang

formed in the Brooklyn, New York area. Under the leadership of

George Chang, John and other members of the gang, including Dean

Beckford, Sean Henry and Winston Gordon, sold large amounts of

crack cocaine in the late 1980s.

1
Alternate spellings of names permeate this record. We adopt the
spellings used by the district court.

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 Eventually, one of the gang members murdered Chang, and

the Poison Clan subsequently splintered -- Beckford led a faction

located in Virginia and John, Henry, and Gordon led a faction

located in Boston. Henry was killed not long after Chang, which

resulted in the Boston-based Poison Clan temporarily shutting down.

Although John and Gordon left Boston soon after Henry's death,

unbeknownst to John, Gordon later returned to Boston and started a

marijuana distribution operation. To assist him with this

operation, Gordon hired Lezmore Buffong.

In mid-December 1990, John visited Boston and encountered

Gordon and Buffong. The encounter, friendly at first, turned

deadly. On December 15, John and Buffong, who were traveling

together in Buffong's car followed by Gordon and another

individual, became separated from the others at a traffic light.

At some point after this, John murdered Buffong.

Nine days later, John was found driving Buffong's car in

New York, and the police recovered two guns and Buffong's wallet in

the car. John, however, was not arrested for the murder of Buffong

until nearly four years later in 1994, and that charge was later

dropped.

B. John's cooperation with city and federal authorities

In 1996, while in custody in New York awaiting trial on

a state robbery charge, John contacted New York authorities for the

purpose of sharing information about the Poison Clan's criminal

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activities, including information regarding Chang's murder. John

made a statement about Chang's murder that eventually came to the

attention of Assistant United States Attorney David Novak, who was

building a federal case in Virginia against Beckford and other

Poison Clan members. Novak and John's New York attorney arranged

to have John transferred to a federal institution in Virginia so

that he could be available to give information to Novak about the

Poison Clan. They also agreed that Novak would seek to have

counsel appointed for John.

The first meeting between John and Novak took place in

Virginia in April 1996. At that meeting, Novak advised John that

he should be represented by counsel and spent half an hour

attempting to persuade John to accept representation. John refused

representation. Novak also offered John a "proffer letter" which

stated that "nothing contained in the oral proffer . . . will be

used against you . . . ." John declined to sign the proffer

letter, telling Novak that he just wanted to tell his story. Novak

developed the impression that John wanted to "even the score" with

Beckford, whom John believed was responsible for Henry's murder.

John subsequently gave information about criminal activity by

Poison Clan members.

Following that initial interview, John was debriefed on

a number of occasions by Novak and by federal agents. John

implicated himself in some of the Poison Clan's criminal activity,

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admitting at one point that he provided the gun that was used to

murder Chang. During those interviews, John was asked at various

points whether he had ever killed anyone. He consistently answered

that he had not.

In May 1996, John testified before a federal grand jury

about the Poison Clan's drug operations and about several murders.

Prior to this testimony, Novak and John had agreed that, in return

for John's cooperation with the federal prosecution, Novak would

recommend to the Brooklyn District Attorney ("DA") a favorable

treatment in his robbery case. The grand jury transcript itself

includes John's acknowledgment of the government's agreement to

notify the Brooklyn DA of his cooperation, and further shows that

John was warned that he could be prosecuted for perjury if he lied.

The transcript contains no references to an immunity agreement.

After Novak informed the Brooklyn DA of John's cooperation, John's

pending plea deal in the Brooklyn robbery case was reduced from

five-to-ten years to three-to-five years incarceration.

In October 1996, Beckford and others were indicted for

multiple homicides, as well as for racketeering, conspiracy, and

engaging in a continuing criminal enterprise. At around this time,

John, still in prison in Virginia, began acting strangely. He

reportedly walked around naked, threw fecal matter about, poured

milk on his head, cut himself, banged his head against a wall, and

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tied a string around his neck in an apparent attempt to commit

suicide.

We pause here to note that several indicted Poison Clan

defendants were incarcerated in the same facility as John. The

state trial court that heard John's motion to suppress during the

later murder prosecution against him observed that there was

evidence that John was malingering in order to avoid testifying

against the Beckford defendants.

After receiving reports of John's bizarre behavior, Novak

visited him in the correctional facility. John told Novak that he

would not testify at the Beckford trial. Novak responded that he

could compel John to testify by granting him immunity, thus

stripping him of his Fifth Amendment privilege not to testify.2

As part of his trial preparation, Novak filed notices

about prospective government witnesses concerning their criminal

histories, and any rewards or inducements made in exchange for

their testimony. See Giglio v. United States, 405 U.S. 150, 154

(1972). The notice filed with respect to John, sent to counsel for

the Beckford defendants in May 1997 (the "1997 notice"), explained

the arrangement with the Brooklyn DA. The notice also stated that

John "has been informed that he has use immunity for his

statements, meaning that anything he says cannot be held against

him in any fashion."

2
The exact date of this conversation is not clear from the record.

-6-
 John, however, did not testify at trial. On June 20,

1997, the week before he was scheduled to testify, John was visited

by an FBI agent. The agent noticed that John seemed agitated and

asked him whether the defendants knew something about him that the

government did not that might come up at trial. At that point,

John told the agent that he had killed Buffong in Boston. The

agent notified Novak of the confession, and Novak elected not to

call John as a witness. The agent also notified the Boston

police.3

C. Trial court suppression hearing and prosecution of John

After John was indicted in 1998 in Massachusetts for

Buffong's murder, he sought to suppress his confession. At the

suppression hearing, Novak testified that his promise of immunity

to John was conditional upon John testifying at the Beckford trial,

and then only for his trial testimony. The confession was

admitted, and after a trial John was found guilty of first-degree

murder. On direct review of the conviction the SJC upheld the

3
Although there is no dispute that the confession took place at
this meeting, the district court identified a discrepancy between
the trial court's finding and the record as to the exact wording of
the FBI agent's question. John v. Russo, 455 F.Supp.2d 1, 5 n.10
(D. Mass. 2006). The trial court found that the agent asked whether
"the Beck[ford] defendants knew something . . . about which John
had not informed law enforcement." The district court noted that
the agent testified that he "had asked John directly if John had
been involved in a murder that he had not theretofore revealed to
law enforcement." The record reveals that another Poison Clan
member, Winston Gordon, was also cooperating with federal
investigators and had previously told the agent that John had
killed Buffong.

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trial court's conclusion that John did not have immunity from the

use of his confession against him.

After exhausting his state remedies, John filed a

petition for a writ of habeas corpus with the district court. The

district court denied John's petition but issued a certificate of

appealability under 28 U.S.C. § 2253(c).

II. Discussion

We review the district court's denial of a habeas

petition de novo. See Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.

2006) (citing Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir. 2003)).

Federal habeas review of a state court decision is

conducted under the Anti-Terrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S.

320, 336 (1997); Niland v. Hall, 280 F.3d 6, 11 (1st Cir. 2002).

Under AEDPA, a federal court can grant habeas relief only where a

state court adjudication:

(d)(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) 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). Subsection 2254(e)provides that:

a determination of a factual issue made by a
State court shall be presumed to be correct.
The applicant shall have the burden of

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 rebutting the presumption of correctness by
clear and convincing evidence.
John first argues for relief under subsection 2254(d)(2)

and (e), and then under (d)(1). As to §§ 2254(d)(2) and (e), he

argues that the trial court's factual finding -- that John's

confession was not obtained under a grant of immunity -- was

erroneous.4 John's other arguments are based on the Fifth and

Fourteenth Amendments. We address these arguments under §

2254(d)(1), the "contrary to, or . . . an unreasonable application

of" standard.

A. Challenge to state court factual findings

John challenges the state trial court's determination,

which was affirmed by the SJC, that "John's statements and grand

jury testimony were not protected by a grant of immunity."5 John,

4
John directs his challenge at the "state trial court's factual
findings" whereas the government defends both the SJC's "factual
findings" and the trial court's findings. After examining the
record, it appears to us that the SJC did not make any factual
findings itself but rather concluded that the factual findings made
by the trial court were supported by the evidence and not clearly
erroneous. John, 812 N.E.2d at 1221-24. In any event, it is plain
that the SJC deferred to the trial court's finding that John's
statements and testimony were not obtained under a grant of
immunity. Id. at 1223. The SJC concluded that the question of
whether a grant of immunity existed hinged on a "credibility"
determination and that nothing in the evidentiary record put the
trial court's credibility determination into question. Id. In our
analysis below, we will refer primarily to the trial court's
factual findings, understanding that the SJC agreed with them.

5
Although John's challenge is directed at this ultimate factual
finding, we interpret him to also be controverting the other
factual findings the district court made when arriving at this
finding.

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812 N.E.2d at 1223. In challenging this ultimate factual finding,

John relies solely on evidence presented in the state court

proceedings.

John's has framed his fact-based habeas challenge under

both § 2254(d)(2) and § 2254(e)(1). He asserts that the trial

court's finding was objectively unreasonable in light of the

evidence presented in the trial court proceeding, see § 2254(d)(2),

and that he has presented clear and convincing evidence sufficient

to overcome the presumption of correctness we afford state court

factual findings in the habeas context. See § 2254(e)(1). As we

observed in Teti, "'the relationship between the standards

enunciated in § 2254(d)(2) and § 2254(e)(1) remains unclear.'" 507

F.3d at 58 (quoting Lambert v. Blackwell, 387 F.3d 210, 235 (3d

Cir. 2004)). Both standards, however, "'express the same

fundamental principle of deference to state court findings.'" Id.

As dictated by Teti, we apply a presumption of correctness to the

trial court's factual findings and also examine whether there has

been an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See id.

The trial court ultimately found that John's confession

was not obtained under a promise of immunity. Supporting this

determination, the trial court found that John expressed a

willingness to assist in the prosecution of Poison Clan leaders and

that Novak concluded that John was willing to assist in the

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prosecution because he harbored animosity toward Dean Beckford, one

of the Poison Clan leaders whom Novak was prosecuting; that John

refused court appointed counsel in connection with this assistance;

and that John also refused to sign a proffer letter that provided

that "nothing contained in the oral proffer . . . will be used

against you."

The trial court also found that the only "agreement" that

existed between Novak and John was the one Novak identified during

John's grand jury testimony: that federal prosecutors had agreed

to notify the Brooklyn D.A.'s office of John's cooperation in the

federal prosecution of the Poison Clan. The trial court determined

that although Novak stated in the 1997 notice that John has "use

immunity" for his statements, this statement meant simply that John

had immunity for his anticipated testimony at the Beckford trial.

In making this finding, the trial court relied on other evidence in

the record. The court noted that John had previously told Novak

that he did not want to cooperate further in the prosecution and,

specifically, that he would refuse to testify at Beckford's trial.

When Novak heard this, the trial court found, he informed John that

he had to testify because Novak could immunize him formally or

informally, effectively stripping him of his Fifth Amendment right

to not testify.

Seeking to adduce clear and convincing evidence

sufficient to rebut the presumption of correctness we give these

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factual findings, John identifies two documents which he argues

establish that, prior to his confession, Novak offered him

unrestricted use immunity not limited to future trial testimony.

He additionally criticizes the record evidence the trial court

relied on when making its factual findings. We first address

John's reliance on the two documents -- the 1997 notice referred to

above and a letter sent by Novak to the Suffolk County DA in

September 2000 ("2000 letter")6.

We start with piece of evidence that is the most helpful

to John's position -- the 2000 letter. Novak wrote:

In the spring of 1997, Mr. John began having
problems while housed at the Northern Neck
Regional Jail and indicated that [sic] may not
cooperate with our office. I orally told him
that he had use immunity for his statements to
us, meaning that anything that he said cannot
be held against him. I told him that this was
conditioned upon him providing truthful
evidence to us. Again, during this time
period, he was telling us that he had not
killed anyone. In early June of 1997, prior to
the trial of the defendants in United States
v. Beckford, I provided the defendants with a
notice regarding Mr. John that informed them

6
Although this letter makes a prominent appearance in this appeal,
its past is more checkered. In its opinion, the federal district
court observed that it initially was unaware of the 2000 letter,
noting that John failed to bring the letter to its attention when
filing his habeas petition. John, 455 F.Supp. 2d at 10. At first,
the court thought that John did not present the letter in the state
court proceedings either, and the court requested briefing to
clarify matters. Id. Ultimately, both John and the government
agreed that the Commonwealth provided the letter to John during the
discovery phase of his state criminal case and that John attached
the letter to the suppression motion he filed in the trial court.
Id.

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 that I had conferred use immunity on Mr. John.
. . . We did not call Mr. John to testify at
the [Beckford trial].

(emphasis added).

Viewed in isolation, the 2000 letter could be interpreted

as indicating that Novak had indeed conferred conditional use

immunity on John that was not limited to his anticipated testimony

at the Beckford trial. But, when placed in the context of the

record as a whole, the 2000 letter's capacity to call into question

the correctness of the trial court's ultimate factual finding is

significantly undermined.

To begin, John's discordant use of the 2000 letter in the

prior state court proceedings detracts from his attempted use of it

in this appeal. Although he attached the 2000 letter to his

suppression motion in the trial court proceeding, John failed to

advance any argument based on the letter in that proceeding. And,

before the SJC, John mentioned the 2000 letter only to effectively

argue that it should be ignored. Specifically, John identified one

statement made by Novak in the 2000 letter -- Novak's statement

that John's immunity was conditioned on him providing truthful

information -- and characterized it as a "late attempt to amend the

unrestricted use immunity granted Mr. John in 1996-1997." Driving

this point home further, John contended to the SJC that the 1997

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Notice, not the 2000 letter, was the "best evidence of the immunity

agreement."7

Putting aside the question of whether John has waived his

newly minted argument regarding the significance of the 2000

letter, it is apparent that, at least before the state courts, he

did not rely on the 2000 letter itself to establish the existence

of a broader use immunity agreement. That John chose not to rely

on the 2000 letter for this purpose before the state courts is

certainly something those courts could have taken into account when

resolving the factual question. But more importantly, when viewed

against the backdrop of all of the other record evidence, the 2000

letter can be harmonized with the trial court's finding that John's

confession was not obtained under a grant of immunity.

We examine the key statement in the letter, Novak's

statement that, "I orally told him that he had use immunity for his

statements to us, meaning that anything he said cannot be held

against him." (emphasis ours). As we have noted, this statement

may be interpreted to suggest that Novak offered John use immunity

prior to his confession. For example, Novak's use of the word

"had" may reasonably be read as indicating that the government had

already bestowed a form of immunity on John distinct from any

immunity contingent on future trial testimony. And, moreover, the

7
We additionally note that in his habeas petition, John failed to
bring the letter to the federal district court's attention. Id.

-14-
phrase "statements to us," could be read as referring to out-of-

court statements made to federal authorities.

But another interpretation of this statement is

undoubtedly plausible. In the 2000 letter, immediately preceding

Novak's statement about immunity, Novak stated that John had

"indicated that [sic] may not cooperate with our office." It was

then that Novak stated that he, "orally told [John] that he had use

immunity for his statements to us, meaning that anything he said

cannot be held against him." (emphasis ours). This indicates that

Novak's statement about immunity was directed at ensuring John's

future cooperation. In other words, Novak communicated to John

that he had immunity for statements to be made at trial, immunity

that would preclude him from successfully asserting a Fifth

Amendment right not to testify at Beckford's trial.

This interpretation of Novak's statement in the 2000

letter is bolstered by Novak's testimony at the suppression hearing

held by the trial court. Novak testified that, when he visited

John in 1997, John informed him that he would not testify at

Beckford's trial. Novak further testified that, after hearing

this, he told John that "he [didn't] have a choice" and that he

would "strip[] him of his Fifth Amendment rights" by "giving him

informal immunity."

In this context, the 2000 letter's "statements to us"

phrase can be read to mean statements to be elicited from John by

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federal prosecutors at Beckford's trial. And Novak's use of the

word "had" may be read to mean that John "had" immunity in the

sense that he no longer possessed it at the time that the 2000

letter was written, or simply to mean that John would have immunity

for statements made at Beckford's trial, as the trial court found.

To be sure, if Novak meant to clearly convey this

arrangement in the 2000 letter he could have chosen his words more

carefully. And had this letter been sent to John prior to his

confession for the purpose of memorializing an agreement or

understanding, this would be a different case entirely. But, in

the end, the 2000 letter, though imprecisely worded, may be

interpreted consistently with the other evidence in the record and

harmonized with the trial court's other factual findings.

In addition to the 2000 letter, John relies on the 1997

notice. John contends that this notice, which contained no

explicit condition on the use immunity conferred by Novak, is the

only written representation of the terms of immunity made

reasonably contemporaneous with the events at issue.

This may be so, but given the interaction between Novak

and John in the days leading up to the Beckford trial, this notice

could be interpreted to simply indicate that John had immunity for

anticipated trial testimony. This reading is particularly

plausible given the purpose the 1997 notice served -- to identify

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John as a prospective trial witness who had "use immunity for his

statements."

In attempting to satisfy his burden of providing clear

and convincing evidence to rebut the presumption of correctness,

John also criticizes the evidence relied on by the trial court.

Basically, John argues that none of the evidence presented in the

trial court squarely contradicts his view of the agreement he had

with Novak. He says that Novak failed to make any notes, send John

any letters, write any memos, or give notice to John's lawyer about

an immunity grant conditional on John's testimony at Beckford's

trial. And he observes, moreover, that the grand jury transcripts

also fail to indicate that he had an immunity grant conditional on

future testimony.

None of these alleged shortcomings cast serious doubt on

the trial court's findings. At bottom, John's argument boils down

to a request that we simply adopt his version of events and

subsequently read all the evidence consistently with it. Where the

record evidence can be interpreted to support a different version,

the case here, we must reject such a request.

In sum, we cannot conclude that there has been an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding or that John has introduced

"clear and convincing" evidence to rebut the presumption of

correctness attached to the trial court's findings of fact. In the

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end, the trial court was presented with two competing accounts of

events and conversations that took place between John and federal

authorities. Each of these accounts was supported by record

evidence. In the face of this competing evidence, the trial court

accepted the government's version of events. And partly tied up in

the trial court's ultimate finding were credibility determinations

it made at a suppression hearing, determinations we are reluctant

to revisit in this posture. See Teti, 507 F.3d at 59 ("[T]he state

trial judge's implicit credibility determinations, adopted by the

[state appellate court], are exactly the type of factual

determinations to which we defer, at least short of any indication

of serious error.") (citing Rice v. Collins, 546 U.S. 333, 341-42

(2006)).

B. "Contrary to, or . . . an unreasonable application of . . . "

John next seeks relief under § 2254(d)(1), arguing that

the state court adjudication "resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States." He challenges his state court conviction on

constitutional grounds, presenting arguments sounding in due

process.

"To be 'contrary to' clearly established Supreme Court

law, a state court must 'appl[y] a rule that contradicts the

governing law set forth in [the Supreme Court's] cases' or

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'confronts a set of facts that are materially indistinguishable

from a decision of th[e] [Supreme] Court and nevertheless arrives

at a result different from [its] precedent.'" Dagley v. Russo, 540

F.3d 8, 13 (1st Cir. 2008) (quoting Williams v. Taylor, 529 U.S.

362, 405-06 (2000)). A state court's decision will constitute an

"unreasonable application" of clearly established Federal law if

the court either "'identifies the correct governing legal rule from

th[e] [Supreme] Court's cases but unreasonably applies it to the

facts of the particular state prisoner's case'" or "'unreasonably

extends a legal principle from [the Supreme Court's] precedent to

a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply.'"

Id. (quoting Williams, 529 U.S. at 407).

Most of John's arguments proceed on the same premise as

his fact-based argument -- that the government granted him

unrestricted use immunity at some point. Specifically, John claims

that Novak promised him unrestricted use immunity, which he alleges

is reflected by the grand jury colloquy, and then later made this

immunity conditional upon him testifying truthfully at the Beckford

trial. Given our resolution of John's challenge to the state court

factual findings, none of these arguments are colorable. As we

developed above, the state court's finding that Novak never

promised John unrestricted use immunity is supported by the record,

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and John has failed to rebut the presumption of correctness we

afford that finding.

But one of John's arguments does not hinge on our

rejecting the state court factual findings. John argues that

Novak's threat to "strip" him of his Fifth Amendment rights, which

came before his confession to the FBI agent, rendered his

confession involuntary. The SJC disagreed, ruling that the trial

court did not err in concluding that John's confession to the FBI

agent was voluntary. John, 812 N.E.2d at 1224-25. Although John

does not couch his challenge to this SJC ruling in the language of

§ 2254(d)(1), we take him to be arguing that the ruling was

"contrary to" Supreme Court precedent or "involved an unreasonable

application of" that precedent.

Consistent with the Supreme Court's decision in Arizona

v. Fulminante, 499 U.S. 279 (1991), in analyzing John's claim that

his confession was involuntary, the SJC considered the totality of

the circumstances, recognizing that "the voluntariness of a

confession turns on whether the defendant's will was overborne to

the extent that [his] statements were not the result of a free and

voluntary act." John, 812 N.E.2d at 1224 (citations omitted); see

also Fulminante, 499 U.S. at 285-87. The SJC concluded that John's

confession was voluntary, discussing both John's impression of the

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relevant meeting with Novak and his possible motivation for

confessing to the FBI agent. John, 812 N.E.2d at 1224.8

After review of the record, we conclude that the SJC did

not unreasonably apply, or act contrary to, Supreme Court law when

concluding that John's confession was voluntary. Although the SJC

did not cite Supreme Court precedent, its voluntariness analysis

was consistent with it. See Dagley, 540 F.3d at 16 (recognizing

that "[a] failure to cite Supreme Court decisions does not itself

suggest a state court decision is 'contrary to' such precedents" .

. . . "'so long as neither the reasoning nor the result of the

state-court decision contradicts them'") (citations omitted). And

the SJC's voluntariness ruling was reasonable and amply supported

by the record evidence.

III. Conclusion

For the reasons provided above, we affirm.

Affirmed.

8
With respect to the Novak meeting, the SJC noted that the trial
court's conclusion "that John was well-acquainted with the
interview process and his rights, was not under the influence of
drugs or alcohol, or affected by mental illness, and clearly had
not been given immunity" was fully supported by the evidence. Id.
And the SJC characterized John's confession to the FBI agent as
John's attempt to make himself undesirable as a witness so that the
federal prosecutors would not put him on the witness stand. Id.

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