Zuluaga v. Spencer

United States Court of Appeals
For the First Circuit

No. 08-1402

LUIS ZULUAGA,

Petitioner, Appellant,

v.

LUIS SPENCER,

Respondent, Appellee.

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

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Chief Judge,
*
Gajarsa and Lipez, Circuit Judges.

Raymond E. Gillespie on brief for petitioner.
Jennifer L. Sullivan, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for respondent.

October 19, 2009

*
Of the Federal Circuit, sitting by designation.
 LYNCH, Chief Judge. Luis Zuluaga appeals from the

district court's denial of his petition for habeas corpus relief

under 28 U.S.C. § 2254, alleging his rights under Brady v.

Maryland, 373 U.S. 83 (1963), were violated in the state criminal

proceedings. Zuluaga v. Spencer, No. Civ. A. 05-CV-11856 (D. Mass.

Jan. 31, 2008). His state conviction in October 1994 was on the

charge of trafficking in over two hundred grams of cocaine; his two

later motions for new trial were denied.

The petitioner's theory is that the prosecutors violated

Brady by not disclosing before his 1994 trial that a certain State

Trooper had been found by a superior court judge in 1981 to have

testified falsely before a grand jury in 1980 in an unrelated

matter. Zuluaga says the state trial court erred in rejecting his

second motion for new trial and that the state appeals court

erroneously affirmed, on the grounds that he was not prejudiced.

The state courts held this information about the Trooper was

inadmissible on two separate grounds and that Zuluaga thus could

not show prejudice because the evidence could not have affected the

outcome of his case.

Because neither state court cited any state or federal

case law, the question arose as to whether these courts had

addressed the merits of the federal Brady claim. This issue would

affect the lens––de novo or deferential review––through which we

view his habeas petition. When a habeas claim has been adjudicated

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on its merits in state court, the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214,

mandates highly deferential federal court review of state court

holdings. See Williams v. Taylor, 529 U.S. 362, 403 (2000). When

it has not been adjudicated on the merits, under circuit law, the

federal habeas court does not owe deference to the state court

reasoning, but reviews the state court adjudication de novo. Pina

v. Maloney, 565 F.3d 48, 54 (1st Cir. 2009).

This seemingly simple rule has proven not so simple. It

raises the question of whether the state court has adjudicated a

federal claim on the merits when the state court has not explicitly

said it has done so. We have addressed the issue when the state

court cites only state law. McCambridge v. Hall, 303 F.3d 24, 35

(1st Cir. 2002) (en banc). Here, the issue is what happens when

the state court cites no law, state or federal. Importantly,

AEDPA's text does not say deference is owed only when the state

court cites to a case.

Petitioner says he was prejudiced because he could have

used the fact of the Trooper's 1980 false testimony before his own

trial to cast doubt on the Trooper's affidavit in support of a body

wire, that this would have led to a different outcome in the

hearing to suppress the fruits of the recording, and that the

evidence would have been suppressed. Absent the suppressed

evidence, petitioner argues, the outcome of the trial likely would

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have been affected.

The basic facts and analysis are set forth in the

district court's thoughtful opinion. We affirm largely on the

basis of that opinion and add our own holdings on two issues.

First, we affirm the district court's ruling that deferential

review is required when it is clear that the state courts either

used their own state standard, which is more generous than the

federal standard, or used the federal standard, although the state

courts did not cite to any case law. Second, we hold that even if

the petitioner were entitled to de novo review on habeas, his

petition still must be denied.

I.

We review de novo a district court's denial of habeas

relief, including its determination of the appropriate standard of

review of the state court proceeding. See Lynch v. Ficco, 438 F.3d

35, 44 (1st Cir. 2006).

Much of petitioner's argument on appeal is devoted to his

claim that his habeas petition is entitled to de novo review. The

district court thoroughly evaluated this argument and properly

concluded that deferential review was appropriate under AEDPA

because the state court had addressed the merits of his federal

claim. See Williams, 529 U.S. at 404-05 (holding that AEDPA

deference precludes habeas relief absent a showing that the state

court's holding was "contrary to, or involved an unreasonable

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application of, clearly established Federal law"). A state court

decision is "contrary to" the Supreme Court's clearly established

precedents if it either applies a rule that contradicts the

governing law or resolves a case differently from the Court on

materially indistinguishable facts. Williams, 529 U.S. at 405,

409. A state court decision is "an unreasonable application" of

Supreme Court case law 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 prisoner's case." Id. at 413.1

AEDPA deference is appropriate "with respect to any claim

that was adjudicated on the merits in State court proceedings."

Goodrich v. Hall, 448 F.3d 45, 48 (1st Cir. 2006) (internal

quotation marks omitted). By contrast, if the state court does not

address the merits of a federal claim, we owe no such deference and

our review is de novo. See Fortini v. Murphy, 257 F.3d 39, 47 (1st

Cir. 2001); see also Ellsworth v. Warden, 333 F.3d 1, 4 n.1 (1st

Cir. 2003) (en banc).2

1
For this analysis, "[t]he ultimate question . . . is not
how well reasoned the state court decision is, but whether the
outcome is reasonable." Hurtado v. Tucker, 245 F.3d 7, 20 (1st
Cir. 2001). A decision that is incorrect does not necessarily rise
to the level of being unreasonable. Williams, 529 U.S. at 410;
Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007).
2
The fundamental Fortini distinction--between cases in
which a state court's adjudication on the merits necessitates
deferential habeas review and cases where a state court's failure
to "resolve all determinative issues of federal law" renders de

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 Still, we have recognized that adjudication of a

constitutional claim on its merits encompasses situations in which

a petitioner's claim was resolved under a state standard "that is

more favorable to defendants than the federal standard."

McCambridge, 303 F.3d at 35. We specifically applied the

McCambridge rule to a Brady claim by a habeas petitioner in Norton

v. Spencer, 351 F.3d 1 (1st Cir. 2003). There the state court had

cited only state law, but because that state law was more generous

to defendants than corresponding federal law, we held that the

subsumed federal claims had been addressed on the merits. Id. at

5.

In state court, petitioner presented the claim at issue

as a Brady claim, not as a state law claim. The Massachusetts

state law standard under Commonwealth v. Tucceri, 589 N.E.2d 1216

(Mass. 1992), is more favorable to criminal defendants on the

prejudice prong of Brady analysis. To prevail on a federal Brady

claim, "a habeas petitioner must demonstrate: (1) the evidence at

issue is favorable to him because it is exculpatory or impeaching;

(2) the Government suppressed the evidence; and (3) prejudice

ensued from the suppression (i.e., the suppressed evidence was

material to guilt or punishment)." Conley v. United States, 415

F.3d 183, 188 (1st Cir. 2005) (citing Strickler v. Green, 527 U.S.

novo review appropriate--is commonly accepted. See 1 Hertz &
Liebman, Federal Habeas Corpus Practice and Procedure § 32.2 at
1569 & nn. 6-7 (5th ed. 2005).

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263, 281-82 (1999)).

Under federal law, the prejudice prong of the Brady

analysis turns on whether a reasonable probability exists that

disclosure of the evidence at issue would have altered the result

of the proceeding. See, e.g., McCambridge, 303 F.3d at 37. We

have previously held that the Massachusetts prejudice standard is

more favorable to defendants than its federal counterpart under

Brady. See, e.g., Healy v. Spencer, 453 F.3d 21, 25 (1st Cir.

2006) (noting the Supreme Judicial Court of Massachusetts's use of

what that court "has characterized as its more defendant-friendly

state standard for prejudice") (citing Commonwealth v. Healy, 783

N.E.2d 428, 435 (Mass. 2003)).

Although short on citation, the state court's holding

squarely addressed the merits either of a possible state

constitutional claim, which encompassed any federal claim, or of

petitioner's federal Brady claim directly, or both. The trial

court judge plainly stated that the evidence at the heart of

petitioner's claim could not have prejudiced him at trial, as the

prior bad acts that it purported to prove "never would have been

admissible at any stage" of petitioner's proceedings, and that

"even if they were [admissible], these prior bad acts . . . were so

remote in time to defendants [sic] prosecution, that they would

carry no evidentiary weight." Finally, the state judge's to-the-

point closing line spoke directly to the issue of prejudice,

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holding that "the newly discovered information could not possibly

have affected the outcome of the case." That articulation covers

either petitioner's Brady claim, an understanding of the claim

phrased in terms of state law, or both. There is no other

possibility.

In these circumstances, it would elevate form over

substance to impose some sort of requirement that busy state judges

provide case citations to federal law (or corresponding state law)

before federal courts will give deference to state court reasoning.

Such formalism would be contrary to the congressional intent

expressed in AEDPA.

The Supreme Court faced a similar issue in Early v.

Packer, 537 U.S. 3 (2002) (per curiam), in which it reversed the

Ninth Circuit for imposing a rule that a state court decision that

failed to cite to the relevant Supreme Court or other federal

precedent was necessarily contrary to clearly established federal

law. The Court held that "[a]voiding th[is] pitfall[] does not

require citation of our cases--indeed, it does not even require

awareness of our cases, so long as neither the reasoning nor the

result of the state-court decision contradicts them." Id. at 8;

see also Knight v. Spencer, 447 F.3d 6, 12 (1st Cir. 2006). While

Early concerned the "contrary to" text of AEDPA, and our question

concerns the "claim that was adjudicated on the merits" text, we

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believe the reasoning is parallel.3

Here, the state court evaluated petitioner's Brady claim

in light of the potential prejudicial impact of the disputed

evidence. Indeed, the state trial judge's opinion effectively

paraphrased the prejudice prong of the Brady or the Tucceri test.

Accordingly, adjudication of petitioner's claims under federal law

was presumptively "subsumed within the state law adjudication."

McCambridge, 303 F.3d at 35; see also Norton, 351 F.3d at 5.

By contrast, application of the Fortini de novo standard

would undoubtedly have been appropriate had the state courts

clearly failed to adjudicate petitioner's claim on the merits,

either because the claim was not before them, see, e.g., Brown v.

Maloney, 267 F.3d 36, 40 (1st Cir. 2001) (applying Fortini when the

state court could not have reached a constitutional claim because

it was not raised until the petition for rehearing), or because

they opted to resolve it on state law grounds that did not subsume

the federal standard at issue, see, e.g., Cruz v. Maloney, 152

App'x 1, 3 (1st Cir. 2005) (applying Fortini where the state court

resolved an earlier iteration of petitioner's jury instruction

3
If this were not a matter of an underlying congressional
command, but merely of judicial rules, we recognize that there is
an argument for a bright-line test. It would be far easier to
administer a test that deference is given only when the state court
cites to federal authority or state authority that subsumes the
federal standard. But both Supreme Court precedent and our
precedent look to the substance of what Congress sought to
accomplish. As noted above, AEDPA's text offers no indication that
deference is owed only when the state court cites to a case.

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claim purely on the basis of state law definitions of his crime).

Of course, it may be more difficult in other cases to

know whether the state court decided the merits of the federal

claim. See, e.g., Pina, 565 F.3d at 54 (opting to "by-pass the

threshold question of whether there has been a state court merits

adjudication" when the state court judge "commented[ed] briefly on

the merits" of petitioner's claim); see generally 2 Hertz &

Liebman, supra, at 1574-79 (discussing federal courts' division

over the appropriate treatment of "summary state court opinion[s]

that fail[] to articulate [their] analysis of the federal

constitutional claim(s)"). But we deal only with the case before

us.

In short, the district court was correct to use

deferential review. Petitioner does not even advance the argument

that he should prevail under AEDPA deference; accordingly, that

claim is waived.

Even were we to apply de novo review, there was no

juncture at which evidence of the Trooper's prior false testimony

would have been admissible under Massachusetts law.4 See

Commonwealth v. LaVelle, 605 N.E.2d 852, 855 (Mass. 1993) ("The

well-established rule in Massachusetts is that '[s]pecific acts of

4
We need not address his claim that there is an exception
for claims of bias or, indeed, whether prior bad acts are evidence
of bias. This argument was not clearly presented to the state
courts.

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prior misconduct of the witness . . . not material to the case in

which he testifies cannot be shown by the testimony of impeaching

witnesses or other extrinsic evidence to affect [the witness's]

credibility.'") (alteration in original) (quoting P.J. Liacos,

Massachusetts Evidence 149 (5th ed. 1981)). Evidence not before a

court cannot impact a proceeding. Thus, for the purposes of Brady

analysis, "[i]nadmissible evidence is by definition not material."

Norton, 351 F.3d at n.3 (1st Cir. 2003) (alteration in original)

(internal quotation marks omitted).5

II.

The denial of the petition for habeas corpus is affirmed.

5
We have previously recognized the possibility of a viable
Brady claim concerning evidence that, although inadmissible, "could
be so promising a lead to strong exculpatory evidence that there
could be no justification for withholding it." Ellsworth, 333 F.3d
at 5 (emphasis in original). Zuluaga has not argued that the
disputed material would have led to additional exculpatory
evidence.

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