Clements v. Clarke

United States Court of Appeals
For the First Circuit

No. 09-1629

JASON CLEMENTS,

Petitioner, Appellee,

v.

HAROLD W. CLARKE,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella, Selya and Howard,
Circuit Judges.

Randall B. Ravitz, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief,
for appellant.
Rosemary Curran Scapicchio for appellee.

January 20, 2010
 HOWARD, Circuit Judge. This habeas petition is before us

for a second time. In 1995, a Massachusetts Superior Court jury

convicted Jason Clements of second-degree murder, resulting in his

receiving a life sentence. After unsuccessfully appealing his

conviction, Clements petitioned for a writ of habeas corpus in the

District of Massachusetts pursuant to 28 U.S.C. § 2254. When this

case first reached us, we clarified which issues had been exhausted

and were therefore appropriate for collateral review. See Clements

v. Maloney, 485 F.3d 158 (1st Cir. 2007) (Clements IV). On remand,

the district court granted the petition, concluding that the state

trial judge had impermissibly, though unintentionally, coerced a

guilty verdict as a result of a series of voir dire examinations of

individual deliberating jurors. See Clements v. Clarke, 635 F.

Supp. 2d 26 (D. Mass. 2009) (Clements V).

The Commonwealth now appeals. We conclude that the

district court employed an insufficiently deferential standard of

review and that the state-court conviction should stand.

I. Facts

The details of both the crime and the petitioner's state

trial have already been laid out in the numerous other reported

decisions that his post-conviction challenges have produced. See

Clements IV; Clements v. Maloney, 359 F. Supp. 2d 2 (D. Mass. 2005)

(Clements III); Commonwealth v. Clements, 763 N.E.2d 55 (Mass.

-2-
2002)(Clements II); Commonwealth v. Clements, 747 N.E.2d 682 (Mass.

App. Ct. 2001) (Clements I). A similarly well-developed record of

the chronology of the jury's deliberations, from which the central

issue in this appeal arises, can be found in the district court's

most recent opinion. See Clements V. We synthesize only the key

facts of the crime here, but necessarily will describe in more

detail the events surrounding the jury's deliberations. Any state

court factual findings are presumed to be correct. O'Laughlin v.

O'Brien, 568 F.3d 287, 290 (1st Cir. 2009); 28 U.S.C. § 2254(e)(1).

This deference extends to findings by all state tribunals, whether

trial or appellate. Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.

2002). Where necessary, we also supplement the state courts'

factual findings with other portions of the record that are

consistent with them. O'Laughlin, 568 F.3d at 290.

On January 30, 1995, Gregory Tillery was shot to death

in Dorchester, Massachusetts. Having identified the petitioner and

Kenneth Mattox as the culprits, the authorities charged them with

second-degree murder by joint venture, armed assault with intent to

murder, and unlicensed possession of a firearm. Appearing before

the grand jury, Sakoya Willis, an eyewitness, affirmatively

identified Clements as the killer. Willis had been selling drugs

with the victim on a street corner when they were confronted by the

defendants, and Willis was standing next to Tillery when the

shooting began. At trial, however, Willis recanted his

-3-
identification of Clements, insisting that he had not truly seen

the shooter. The Commonwealth impeached Willis' testimony with his

prior inconsistent statements, which included an identification

from a photo array and a recorded statement to the police, in

addition to his grand jury testimony. The remainder of the

prosecution's case was based on circumstantial evidence.

The jury began deliberating on the afternoon of Monday,

January 26, 1998, continuing for an hour before the court adjourned

for the day. The jury reconvened on Tuesday morning and, after

requesting Willis' trial testimony and inquiring into the theory of

joint venture, continued to deliberate until mid-afternoon. At

that point, the judge received a note from the jury indicating that

it was deadlocked. The judge returned the note and instructed the

jury to continue deliberating, which it did for the remainder of

the day.

On Wednesday, the jury once again notified the judge that

it was deadlocked. The judge issued the standard instructions

given in Massachusetts courts when jurors have been unable to

agree, known as a "Tuey-Rodriguez charge." See Commonwealth v.

Rodriguez, 300 N.E.2d 192, 202-03 (Mass. 1973); Commonwealth v.

Tuey, 8 Cush. 1, 2–3 (Mass. 1851). Following this instruction from

the court, the jury resumed deliberating, but finished early for

the day with the court's permission.

-4-
 On Thursday morning, the judge received two more notes,

each from a different juror. The first stated that the juror's

wife had an important medical appointment the following day. The

second, from Juror No. 4, said that "[o]ne person is not competent

enough to be on this jury." The judge decided to interview Juror

No. 4, a full-time dental student who had previously expressed

reservations about the trial schedule. During the interview, Juror

No. 4 began referring to a "big impasse," but the judge immediately

told him not to disclose anything further concerning deliberations.

Following this, the entire jury was again instructed to resume

deliberations.

Then, on Thursday afternoon, the judge received a third

note, which quickly precipitated the chain of events giving rise to

this appeal. This note succinctly stated, "Upon further

investigating, a statement made by one of the jurors is biased; and

we would like to speak to the Judge concerning this extreme." The

note bore the signature of Juror No. 9, with the addendum "Foreman

refused to sign it." After considering the note, the judge

resolved to conduct an individual voir dire of each juror in order

to determine whether any evidence of bias existed and what impact,

if any, the alleged bias might be having on the deliberations.

The judge asked the first juror interviewed whether there

was anything said that she might consider to be a biased statement.

The juror responded, "[O]ne of the jurors say . . . I feel that if

-5-
they go to jail then he ought to go to jail, too, talking about one

of the witnesses. So we assumed -- take that as a biased

statement." Asked to clarify, the interviewee went on to explain

that the juror in question had said, "[W]hy should I put two

innocent guys in jail when I believe the witness should be in jail

himself. So she assume -- you know, she figure that all of them

should be in jail or they should be set free because she doesn't

believe this witness."

After the interview concluded, all agreed that the

reported statement did not seem to involve any bias. The judge

agreed with Mattox's attorney that what amounted to one juror's

concerns over testimony was no reason to intervene. Nevertheless,

the judge observed that they had only "heard from one juror," and

that she "wasn't exactly clear that you can take that as a

necessary statement." The court therefore decided to inquire of at

least one other juror in order to confirm the first interviewee's

version of events.

The next juror interviewed was No. 4, the dental student

who had previously expressed reservations about the length of the

deliberations. At the time, the judge actually suspected that

Juror No. 4 was the source of the allegedly biased statement.

Shortly after beginning the interview, the court realized that this

suspicion was incorrect. Juror No. 4 said that he was "[o]ne

hundred percent positive" that he had heard something indicating

-6-
bias or prejudice on the part of another juror. The colloquy

continued:

JUROR: We were discussing the reason we were
at an impasse. And the juror -- do you want
me to give a name -- the juror who was one of
the people who was in the -- against the
majority of the rest of the people basically
said that she could not basically believe
Sakoya Willis' testimony because of the fact
that she believes he should go to jail and she
cannot convict two defendants on that,
basically, because Sakoya Willis has no
punishment towards him. So, basically, she
believes that the witness is not credible for
that reason.
THE COURT: So explain to me what you see as
the bias.
JUROR: Basically, she would not convict the
two defendants because she believes Sakoya
Willis deserves to go to jail, as well. And
that was clean out, simple as can be, stated
to all of us; and all of us heard it.
THE COURT: Do you think that this statement by
her will interfere with your own ability to
fairly deliberate on the evidence in the case?
JUROR: My own ability?
THE COURT: Yes.
JUROR: No, not at all. It won't affect my
ability. I think it affected her ability.
THE COURT: All right. So you think, as far
as you are concerned, you can continue to
deliberate --
JUROR: I have no problem. It has not changed
my mind in the case. I believe that --
THE COURT: Okay. Don't tell us what you
believe. But you think you can fairly --
JUROR: I have no problem continuing
deliberating in this case.
THE COURT: All right. Thank you.

After this exchange concluded, counsel for each defendant

moved for a mistrial, arguing that the jury had reached an impasse.

The judge considered the motions during a recess, but ultimately

-7-
decided that, having started the voir dire process, it would be

appropriate to complete it. Each defendant's attorney objected on

the record.

Subsequent interviews revealed more of the same. Juror

No. 5 stated that the juror in question had "said something to the

effect that I can't put two young men in jail when I think the

person who is giving the testimony should be in jail, also." As

before, the judge followed by asking if "having heard that

statement is going to interfere with your own personal ability to

deliberate on this case and consider fairly the evidence." Again,

the juror reassured the judge that it would not. After this juror

left, Clements's attorney renewed his objection, arguing that the

judge's question was effectively "acting and directing this juror

to put aside statements made by another juror in reference to the

credibility for a particular witness. And, respectfully, I believe

it's unduly influencing this juror." The court noted the

objection, but decided to press on.

After interviewing another juror who also corroborated

the now familiar narrative, the court addressed Juror No. 7, the

foreperson -- who was also revealed to be the holdout. The judge

asked whether she had heard any statement from another juror that

she thought to be biased or prejudiced. Juror No. 7 responded,

"No, your Honor. I haven't. And I am the only juror that is not

-- I have ruled not guilty." The judge interjected, "I really

-8-
don't want to hear about your deliberations." The court then

reconfirmed with the juror that no biased or prejudiced statements

had in fact been made and ended the interview.

The next juror interviewed had written down what she

claimed was a direct quote of the statement, which read: "I don't

find Sakoya to be a credible witness. How can I put two young men

in jail when he, Sakoya, probably should be in jail, himself." The

judge acknowledged that "you might not agree with particular

jurors," then asked whether her "own ability to deliberate and

focus [her] deliberation only on the evidence" was affected. The

juror, as the others before her had, affirmed that she could

continue to deliberate.

Interviewed next was juror No. 9, who had signed the

note. Unlike her peers, who, when asked, all confirmed that they

would still be able to reach a fair and impartial verdict, this

juror indicated that her ability to do so had actually been

compromised. The judge asked her why, to which she responded that

"you know, she's not looking at evidence. The person is not

looking at evidence. They are putting a statement in that

shouldn't be there that's keeping us -- " At this point, the judge

cut her off, thanked her, and moved on to the next juror.

The court continued this process in similar fashion

through the entire jury. Each time, the judge asked if the juror

had heard a statement evincing bias or prejudice, and each time the

-9-
interviewed juror said yes and identified the holdout's comments.

The court asked each juror whether the juror's own ability to

deliver a fair and impartial verdict was compromised. Most said

that it wasn't. Four, including the note's author, seemed to

indicate otherwise, but it became clear from subsequent inquiry

that each of them had misunderstood the judge's question.1 They

were describing the holdout juror, not themselves, when they

referred to impartiality. At worst, they were describing an

inability to reach a verdict as a unanimous jury.2

Following voir dire of each of the jurors, the court

addressed counsel as follows:

1
In addition, a fifth juror expressed similar sentiments, but
he was subsequently discharged and replaced with an alternate due
to a personal matter, after which deliberations recommenced.
2
For example:
THE COURT: Okay. Do you feel that that statement
by the juror is going to interfere with your
ability to decide this case fairly on the evidence?
JUROR: I do, 'cause for the last four days it's
been the same one person that none of us can reach.
And, when she made the statement, that led us to
believe this is what she's been thinking all the
time.
. . .
THE COURT: Okay. And, if I understand -- well, you
say that you think it's going to interfere with
your ability because–
JUROR: Yeah, because for the last four days this
certain person been the hold-up. We only discussed
one person. We haven't been able to move forward
to the second person.
THE COURT: Okay.

-10-
 It seems to me that what we heard from the
various jurors is that there is an impasse.
But nothing that I heard indicated a type of
bias or prejudice that I think would warrant
myself interfering with or stopping the
deliberations of the jury. And so I think in
the circumstances, what I would tell the
jurors is that having made the inquiry, this
is not a situation where I think I would be
warranted in interfering with their
deliberations and that they should continue to
deliberate. They know that they –- my
instructions have indicated before they are to
consider whether they are to reach a unanimous
verdict on each of the verdicts, if that is
possible, and that is what they are to do.
But I don't think that it's a situation that
suggests either the removal of any juror for
bias or prejudice or really any further step.
I think what we heard was really a reflection
of the nature of the deliberations, which is
really up to the jury and not to me.

Each defendant's counsel renewed his motion for a

mistrial, which the court noted but denied. Finally, that

afternoon, the judge explained to the full jury that "this is not

a situation in which it is appropriate nor would I want to

interfere with your deliberations. I told you that as jurors your

job is to reach a verdict based on the evidence and only the

evidence presented in this case and in accordance with my

instructions if it is possible to do so." With the voir dire

behind them, the jurors were sent out to resume deliberations. It

requested and was granted permission to end early and reconvene the

following morning.

On Friday, defense counsel once again renewed their

motions for mistrial. Clements's counsel maintained that the court

-11-
had effectively asked at least one juror to "put aside the

viewpoints of the other jurors in his deliberations." Furthermore,

he argued, the court had "imposed undue pressure" on the minority

"to succumb to the wishes of the majority." Once again, the

motions were denied.

At some point that morning, Juror No. 4 contacted the

judge to remind her of the toll that the lengthy deliberations were

taking on his dental studies. The judge suggested leaving the

issue until the end of the day. During their conversation, the

juror stated, "[I]f we go into next week, I mean, I'm really going

to be -- again, it's not going to change but it's -- I need to

graduate. It's going to be affecting me big time. And I don't

mean to be -- I know you spent a long, hard time doing this. I

don't mean to be a pain in the tush, but that's just the way -- you

know, it's just very hard on me." The judge cut off Juror No. 4 in

the middle of his next sentence and said, "Why don't we just leave

it that we will take it up at the end of the day." The juror

agreed and returned to deliberate.

Late that afternoon, the jury reached its verdict.

Clements was convicted of all three charges. He would eventually

be sentenced to life imprisonment. Mattox, on the other hand, was

acquitted.

Following his conviction, Clements appealed several

separate alleged defects in his trial, most of which do not concern

-12-
us here.3 The only claim before us is that the jury was coerced,

in violation of the Sixth Amendment, by the court's voir dire of

individual jurors and its subsequent remarks to the jury.

II. Discussion

A. Statutory Framework

Our review of the district court's ruling is de novo.

Yeboah-Sefah v. Ficco, 556 F.3d 53, 65 (1st Cir. 2009).

Accordingly, "the district court opinion, while helpful for its

reasoning, is entitled to no deference." Healy v. Spencer, 453

F.3d 21, 25 (1st Cir. 2006).

Before turning to the merits of the petitioner's claim,

we must first determine the proper standard of review with which to

approach the state court's disposition of the petitioner's direct

appeal. The Anti-Terrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, provides that on

federal habeas review, the level of deference owed to a state court

decision hinges on whether the state court ever adjudicated the

relevant claim on the merits or not. 28 U.S.C. § 2254(d). If so,

the petition will not be granted unless the state court

adjudication:

(1) . . . resulted in a decision that was
contrary to, or involved an unreasonable

3
The provenance of the other claims is discussed in detail in
Clements III, 359 F. Supp. 2d at 5.

-13-
 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.

Id. In contrast, a state court decision that does not address the

federal claim on the merits falls beyond the ambit of AEDPA. When

presented with such unadjudicated claims, the habeas court reviews

them de novo. Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).

The Supreme Judicial Court, Massachusetts' highest state

court, declined to review the jury coercion issue. Commonwealth v.

Clements, 752 N.E.2d 241 (Mass. 2001) (table). We therefore "look

through to the last reasoned decision" in our attempt to deduce the

basis for the state court's holding. Malone v. Clarke, 536 F.3d

54, 63 n.6 (1st Cir. 2008) (quotations omitted). Accordingly, we

turn to the decision of the Massachusetts Appeals Court in Clements

I.

B. The State Court Decision

The Massachusetts Appeals Court addressed the jury

coercion issue among a potpourri of "other claims" toward the end

of its opinion. As to coercion, the court stated:

Contrary to the defendant's contention, the
trial judge did not invade the autonomy of the
jurors' deliberations. After the judge
received a note from the jury indicating that
one of the jurors allegedly had made a biased
statement, the judge properly conducted an
individual voir dire with each juror. See
Commonwealth v. Laguer, 410 Mass. 89, 97, 571

-14-
 N.E.2d 371 (1991). After finding no bias, she
ordered the jury to continue with their
deliberations.

During the course of the voir dire, the judge
learned that eleven jurors favored conviction
while one juror favored acquittal. The
defendant argues that the judge's directive to
the jury to continue deliberations may have
been interpreted by the jury as an implicit
endorsement of the majority position over the
one juror who favored acquittal. See
Commonwealth v. Gonzalez, 28 Mass. App. Ct.
10, 14-15, 545 N.E.2d 862 (1989).

The record shows no impropriety by the judge.
The transcript indicates that she was not
coercive, did not attempt to influence their
judgment, and in no way intimated to the
jurors that she agreed or disagreed with their
positions. She merely informed the jurors that
she had found no evidence of juror bias and
that they should continue to deliberate.

Clements I, 747 N.E.2d at 694.

Clements urges us to conclude, as did the district court,

that this cursory treatment did not constitute an adjudication on

the merits of his federal claim. We disagree.

A matter is “adjudicated on the merits” if there is a

“decision finally resolving the parties' claims, with res judicata

effect, that is based on the substance of the claim advanced,

rather than on a procedural, or other, ground.” Teti v. Bender,

507 F.3d 50, 56–57 (1st Cir. 2007). Here, there is no dispute that

the Massachusetts Appeals Court's treatment of the jury coercion

claim constituted a final decision with res judicata effect.

Moreover, the court rested its decision on undoubtedly substantive

-15-
grounds, holding that it had found in the record no evidence of

coercion or exertion of influence. Thus, this was neither a

disposition on procedural grounds nor a summary disposition in

which the court simply remained silent on the issue. Cf. Norde v.

Keane, 294 F.3d 401, 410 (2d Cir. 2002) (reviewing state court

opinion that, although addressing evidentiary challenges, "did not

mention Norde's Sixth Amendment claims" and "does not contain any

language, general or specific, indicating that those claims were

considered and denied on the merits").

Nevertheless, even if it is uncontested that the state

court's grounds were substantive, determining precisely which

substance proves a bit more elusive. The state court did not

expressly identify the right that was actually at stake. It merely

held that no "impropriety" had occurred and proceeded to offer its

conclusions regarding the lack of coercion. The problem that we

face in reviewing the state court decision is that "impropriety,"

by itself, has neither a state nor a federal valence. It is,

therefore, not immediately apparent whether the state court was

disposing of Clements's federal constitutional claim, or whether it

was only addressing the parallel claim that Clements had made under

Art. XII of the Massachusetts Declaration of Rights.4 Were we to

4
The question presented to the Massachusetts Court of Appeals
was: "Did the trial court's questions to deliberating jurors
requesting that they disregard an opinion of the lone holdout that
Clements was not guilty, invaded [sic] the province of the jury and
violated [sic] Clements [sic] right to a fair trial pursuant to the

-16-
find that the state court had relied solely on state standards that

did not implicate federal constitutional issues, we would review

the matter de novo. See DiBenedetto v. Hall, 272 F.3d 1, 6–7 (1st

Cir. 2001).

There is, however, an additional and, we think, critical

data point that aids us in our inquiry. In its discussion, the

state court cited to a Massachusetts case, Commonwealth v. Laguer,

571 N.E.2d 371 (Mass. 1991).5 Clements contends that the reliance

on state case law, unaccompanied by any direct mention of federal

law, necessarily means that the federal claim remains

unadjudicated. That is, although the state court never expressly

indicated that it was applying purely state law, the fact that the

court cited solely to state precedent should be read to exclude any

reliance on federal law. On this basis, Clements argues, we should

review his Sixth Amendment claims de novo.

Sixth and Fourteenth Amendments to the United States Constitution,
as well as Article XII of the Massachusetts Declaration of Rights?"
5
A second cited case, Commonwealth v. Gonzalez, 545 N.E.2d 862
(Mass. 1989), involved the potential for a jury to misinterpret a
judge's directives as an implicit endorsement of a particular
verdict. The Gonzalez court held that a mistrial was warranted
under state law when a trial judge discharged a juror for personal
reasons following a deadlock, and that juror turned out to have
been the lone holdout against conviction. Here, neither party has
made any argument regarding the legal import of the Massachusetts
Appeals Court's citation to Gonzalez in Clements I. In any case,
we find no federal issue addressed in that case and, accordingly,
confine our discussion to the Laguer citation briefed and argued by
the parties.

-17-
 We see no reason why such an inflexible rule as the

appellant urges should be adopted. "[I]t would elevate form over

substance to impose some sort of requirement that busy state judges

provide case citations to federal law . . . before federal courts

will give deference to state court reasoning." Zuluaga v. Spencer,

585 F.3d 27, 31 (1st Cir. 2009). The real question is not whether

the state court opinion cited to any federal cases, but whether the

opinion addresses a fairly raised federal issue.

In DiBenedetto, we considered a Supreme Judicial Court

opinion that had cited only Massachusetts judicial decisions and

never addressed the federal constitutional issues that the

defendant had raised on direct appeal. We reviewed those claims de

novo, holding that AEDPA's deferential standard of review is

inapplicable when the state court does not "decide constitutional

claims raised by the defendant." 272 F.3d at 7. We also noted,

however, that reference to state court decisions that themselves

deal with federal constitutional issues may be sufficient to

trigger AEDPA's heightened deference. Id. at 6; see also

Washington v. Schriver, 255 F.3d 45, 61–62 (2d Cir. 2001)

(Calabresi, J., concurring) (noting that even citation to "State

court decisions that apply federal law" might qualify as

"specifically addressing" a petitioner's constitutional claims).

Here, a closer look at the Massachusetts Appeals Court opinion

-18-
persuades us that it did indeed address Clements's Sixth Amendment

claims.

Laguer, which the court relied on, concerned an attempt

to impeach a jury verdict on account of alleged ethnic bias in the

deliberations. The Supreme Judicial Court held that it would have

been appropriate for the trial judge to conduct an evidentiary

hearing in order to confirm or deny the reports of bias. In

justifying the hearing, which would have otherwise been disallowed

under state law, the court explained that "[w]e are persuaded that

the possibility raised by the affidavit that the defendant did not

receive a trial by an impartial jury, which was his fundamental

right, cannot be ignored." 571 N.E.2d at 376. It then quoted a

passage from Irvin v. Dowd, 366 U.S. 717, 722 (1961), that "the

right to a jury trial guarantees to the criminally accused a fair

trial by a panel of impartial, 'indifferent' jurors." 571 N.E.2d

at 376.

Irvin itself dealt with prejudicial pretrial publicity.

Because Irvin's underlying subject matter (pretrial publicity) is

not the same as in this case (the trial court's allegedly coercive

juror inquiries), Clements urges us to reject -- as did the

district court -- the Commonwealth's argument that Laguer's

citation to Irvin signals an adjucation on the merits of the

federal claim. See Clements V, 635 F. Supp. 2d at 33–34

(explaining that the question of whether extensive pretrial

-19-
publicity prevents a defendant from receiving a trial before an

impartial jury has "nothing to do with judicial inquiry of

deliberating jurors of the possibility of judicial pressure on an

undecided jury to render a verdict").

We think that Irvin carries more weight in the state

appellate court's analysis than the petitioner acknowledges. The

Court in Irvin did not spin federal law out of whole cloth; it was

interpreting the Sixth Amendment right to a fair and impartial

jury, the very same constitutional provision on which Clements

stakes his claim for relief. Indeed, the petitioner should

appreciate Irvin's salience to the allegation of juror coercion, as

he himself invoked Irvin when he presented his constitutional

claims in a motion for a new trial.6 See Def.'s Mem. in Supp. of

Mot. for a New Trial at 22, Commonwealth v. Clements, No. 96-11434

(Mass. Super. Apr. 16, 1999) (citing Irvin for proposition that

failure to grant a defendant a hearing before an impartial jury

violates due process); Petr.'s Mem. of Law in Opp. to Respt.'s Mot.

to Dismiss for Failure to Exhaust State Ct. Remedies at 12

(confirming that motion for new trial had "cited the right to an

impartial jury under the Sixth and Fourteenth Amendments and cited

6
It is true that the petitioner did not cite to Irvin for
support before either the Massachusetts Appeals Court or the
federal district court. But he did plainly rely on that case in
his motion for a new trial before the superior court, the denial of
which was subsequently consolidated with his direct appeal to the
Massachusetts Appeals Court.

-20-
Irvin v. Dowd, supra, in advancing the claim that the trial judge

improperly invaded the province of the jury and coerced a guilty

verdict"). Clements's aboutface on this issue is understandable

but ultimately unavailing. His citation to Irvin in his new trial

motion reinforces our own view of that case's relevance to the

constitutional question before us here.7

Even if the Massachusetts Appeals Court was unaware of

Clements's invocation of Irvin in his new trial motion, our

conclusion nevertheless remains the same. Laguer, according to the

Massachusetts Appeals Court's reading, vindicates the trial judge's

behavior in as much as it mandates investigation once the red flag

of juror bias has been waved. The Laguer court remanded for the

purpose of conducting an evidentiary hearing into potential bias

because the constitutional right to an impartial jury not only

should not be ignored, but "cannot be ignored." Laguer, 571 N.E.2d

at 376 (emphasis added).

Thus the state appellate court's reason for pointing to

Laguer is clear. The court cited Laguer (which, again, relied on

7
The state appeals court docket indicates that it had
consolidated Clements's appeal of the superior court's denial of
his motion for new trial with the appeal from his conviction. In
doing so, it ordered the Suffolk Superior Court clerk's office to
forward all updated copies of the docket and any transcripts as
they became available. See Docket Entry 3, Clements I, 747 N.E.2d
682(No. 1999-P-158), available at http://www.ma-appellatecourts.
org/display_docket.php?dno=1999-P-0158. The motion for new trial
itself and its accompanying memorandum of law likely would have
been incorporated into the appeals court record as part of this
consolidation.

-21-
Irvin for that case's explication of the Sixth Amendment right to

an impartial jury) for the proposition that a judge faced with a

claim of juror bias is compelled to inquire further. This reading

accords with Laguer's legacy in the courts of the Commonwealth.

See, e.g., Commonwealth v. Mendes, 806 N.E.2d 393, 409 (Mass. 2004)

(summarizing Laguer by stating that "defendant's right to fair

trial required further inquiry by judge"); Commonwealth v. Cuffie,

609 N.E.2d 437, 440 (Mass. 1993) (citing Laguer for proposition

that "[t]he defendant was entitled to receive a trial by jury whose

members are impartial").

It is true that Laguer would not have given a trial judge

carte blanche to conduct the voir dire in any way she pleases, and

perhaps this is why Clements insists that its relationship to his

coercion claim is oblique at best. Even so, the fact that the

appeals court made conclusory statements, such as "the record shows

no impropriety" and "[t]he transcript indicates that she was not

coercive," is not dispositive. Once the federal-rights backdrop is

understood, the court's analysis was sufficient. AEDPA's trigger

for deferential review is adjudication, not explanation. Cf.

Wright v. Sec'y for Dep't. of Corrections, 278 F.3d 1245, 1255

(11th Cir. 2002) (holding that even summary dispositions constitute

merits adjudications because "all that is required [by the statute]

is a rejection of the claim on the merits, not an explanation").

When a state court has truly avoided (or merely overlooked) the

-22-
petitioner's federal claim, a federal court may step into the

breach and review de novo. But judicial opacity is a far cry from

judicial avoidance. It is the result to which we owe deference,

not the opinion expounding it. See Teti, 507 F.3d at 56–57

(holding that AEDPA deference "applies regardless of the procedures

employed or the decision reached by the state court, as long as a

substantive decision was reached; the adequacy of . . . the

decision [is] addressed through the lens of § 2254(d), not as a

threshold matter"); Rashad v. Walsh, 300 F.3d 27, 45 (1st Cir.

2002) ("It is not our function . . . to grade a state court opinion

as if it were a law school examination.")

In sum, we conclude that the Massachusetts Appeals Court

considered and adjudicated the petitioner's federal claim.

Accordingly, § 2254(d) governs our review.

C. The Jury Coercion Claim

With the appropriate standard of habeas review

determined, we turn to the merits of the petitioner's claim.

Clements contends that the judge's conduct was, however well-

intentioned, a violation of his Sixth and Fourteenth Amendment

rights to a trial by an impartial jury. Specifically, he argues

that the colloquies during the series of voir dires effectively

signaled to the jurors that they must reach a verdict and should

ignore the remaining holdout, contravening the defendant's right to

-23-
an uncoerced jury verdict. See Lowenfield v. Phelps, 484 U.S. 231,

241 (1988).

To merit the grant of habeas relief under § 2254(d), the

state appeals court's determination of the voir dire issue must

fail under either the "contrary to" or the "unreasonable

application" prong of the statute. A state court decision is

"contrary to" clearly established Supreme Court law if it

"contradicts the governing law set forth in the Supreme Court's

cases or confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from its precedent."

John v. Russo, 561 F.3d 88, 96 (1st Cir. 2009) (internal quotations

marks and brackets omitted); see also Ouber v. Guarino, 293 F.3d

19, 26 (1st Cir. 2002) (elaborating on "contrary to" prong). An

unreasonable application, on the other hand, occurs if the court

either "identifies the correct governing legal rule from the

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." Russo, 561 F.3d

at 96 (internal quotation marks and brackets omitted); see also

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc)

(elaborating on "unreasonable application" prong).

-24-
 The threshold question is what constitutes "clearly

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

United States." See Lockyer v. Andrade, 538 U.S. 63, 72 (2003);

Dagley v. Russo, 540 F.3d 8, 16 (1st Cir. 2008). In pressing his

claim of jury coercion, Clements directs us to three cases decided

by the Supreme Court: Jenkins v. United States, 380 U.S. 445

(1965), United States v. U.S. Gypsum Co., 438 U.S. 422 (1978), and

Lowenfield. The first two of these cases, however, are of no

assistance to him, as the Supreme Court has foreclosed our

consideration of precisely these cases. In Early v. Packer, 537

U.S. 3, 10 (2003) (per curiam), the Court held that Jenkins and

Gypsum Co. were based on the Court's supervisory power over the

federal judiciary rather than on any constitutional provision

applicable to state-court proceedings. See also Lowenfield, 484

U.S. at 239 n.2 (noting that Jenkins was based on the "supervisory

power over the federal courts, and not on constitutional grounds").

We can ask for no clearer direction than the Court's injunction

that "Jenkins and Gypsum Co. are off the table as far as § 2254(d)

is concerned." Packer, 537 U.S. at 10.

That leaves us with Lowenfield. There, the Court held

that a capital sentencing jury was not unconstitutionally coerced

by a combination of the trial judge's polling and supplemental

instruction. In denying the petitioner's claim based on the

totality of circumstances, the Court noted that "we do not mean to

-25-
be understood as saying other combinations of supplemental charges

and polling might not require a different conclusion. Any criminal

defendant . . . being tried by a jury is entitled to the uncoerced

verdict of that body." 484 U.S. at 241. This language is scant

precedent on which to hang this § 2254 claim.

To begin with, we note that the Court in Lowenfield

rejected the claim that the judge's behavior was unconstitutional.

The broadly worded passage quoted above, although unexceptional, is

also primarily dicta, which by definition is not clearly

established law. Williams v. Taylor, 529 U.S. 362, 412 (2000). To

the extent that Lowenfield does constitute clearly established

federal law, that law can be summarized as follows: defendants have

a right against coerced jury verdicts, and any potential coercion

should be measured based on the totality of the circumstances.

There is nothing to suggest that the Massachusetts Appeals Court in

Clements I ran afoul of this standard in reviewing the trial

judge's actions. Because the Supreme Court has established so

little in the way of a constitutional rule governing state courts'

use of polling and voir dires during jury deliberations, there is

equally little for a state court to contradict.

By the same token, the state court did not unreasonably

apply Lowenfield. As the Supreme Court has explained, "evaluating

whether a rule application was unreasonable requires considering

the rule's specificity. The more general the rule, the more leeway

-26-
courts have in reaching outcomes in case-by-case determinations."

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). We think

Lowenfield's totality-of-the-circumstances test, to the extent that

it constitutes clearly established federal law to begin with,

allows for a great deal of leeway. The state appellate court in

this case reviewed the relevant transcript, considered the judge's

actions, and concluded that they were not improper. Regardless of

whether or not we would have reached the same conclusion that the

state court did, we cannot say that the state court's treatment of

the jury coercion issue, though brief, was unreasonable. See

Foxworth v. St. Amand, 570 F.3d 414, 429 (1st Cir. 2009) ("A

sparsely reasoned state-court decision may set off warning bells,

but such a decision does not necessarily mean that the outcome

represents an unreasonable application of clearly established

Federal law.").

III. Conclusion

We reverse the district court's grant of relief and

remand with instructions to reinstate the petitioner's conviction.

SO ORDERED.

-Concurring Opinion Follows -

-27-
 TORRUELLA, Circuit Judge (Concurring). I join the

majority in holding that AEDPA's deferential standard of review

controls in this case. 28 U.S.C. § 2254(d). I also agree with the

majority that reversal of the district court's grant of relief in

this case is proper. I write separately to clarify my view that

the panel's decision should not be interpreted to endorse the

position that a state court decision that fails to expressly

identify the relevant federal claim should necessarily be

considered an adjudication on the merits for AEDPA purposes.

Petitioner Jason Clements claims that his Sixth Amendment

right to a fair trial was violated when the state trial court

invaded the province of the jury and coerced a guilty verdict. The

Massachusetts Appeals Court affirmed Petitioner's conviction and

rejected his claim that the trial court judge coerced the jury into

returning a guilty verdict when she conducted an individual voir

dire of jurors to investigate a claim of juror bias. In its

decision, however, the Appeals Court failed to specify whether it

was considering Petitioner's Sixth Amendment claim, a similar claim

under the Massachusetts Constitution, or both. Instead, the

Appeals Court cited the Supreme Judicial Court of Massachusetts'

decision in Commonwealth v. Laguer, where the Supreme Judicial

Court relied on the right to "a fair trial by a panel of impartial

'indifferent' jurors," Irvin v. Dowd, 366 U.S. 717, 722 (1961), to

hold that the convicted petitioner in that case was entitled to an

-28-
evidentiary hearing in which the court would evaluate evidence of

potential juror bias. 571 N.E.2d 371 (Mass. 1991).

As the majority explains, the Appeals Court adjudicated

petitioner's claims on substantive grounds when it concluded that

the trial judge "was not coercive, did not attempt to influence

[the jurors'] judgment, and in no way intimated to the jurors that

she agreed or disagreed with their positions." Commonwealth v.

Clements, 747 N.E.2d 682, 694 (Mass. App. Ct. 2001). Thus, we are

not faced in this case with a state court denial of a federal claim

on procedural grounds. Likewise, we are not dealing with a state

court decision that summarily denied the claims without discussion.

Notwithstanding, the determination that the Appeals Court

issued a decision on non-procedural grounds does not automatically

trigger AEDPA's deferential standard of review. The majority

correctly identifies this distinction and engages in an analysis of

the decision rendered by the Appeals Court in order to ensure that

the state court addressed the federal claim on the merits. In my

view, however, the panel tests the limits of our precedent in this

area when it accepts the proposition that summary adjudications by

state courts may nevertheless merit AEDPA deference because, as the

majority opinion claims, "AEDPA's trigger for deferential review is

adjudication, not explanation."

When exercising review of a habeas petition, AEDPA

requires federal courts to determine, as a threshold matter,

-29-
whether the state court adjudicated the federal claim on the

merits. Only after this threshold determination is made, does

AEDPA's deferential standard of review demand respect for state

court judgments and require federal courts to assess the

reasonableness of the state court's outcome, not its reasoning.

DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001) (holding that

"when the state court has addressed the federal constitutional

issue, it is its ultimate outcome, and not its rationalization,

which is the focus"). But where the state court opinion fails to

explicitly address the constitutional claim, no deference to the

state court is warranted precisely because we have no basis to

assess the reasonableness of the state court's holding. Thus, the

threshold determination of whether the state court addressed the

federal claim on the merits requires us to examine the state

court's reasoning, not merely its outcome.

In my view, this panel's decision should not be read to

merge the threshold determination of whether the state court

addressed the federal claim on the merits with the scope of our

review once it is determined that AEDPA deference is appropriate.

These are two distinct inquiries that we must keep separate in

assessing the scope of our review in federal habeas cases.

A review of the Appeals Court's decision in the context

of Petitioner's jury coercion claim reveals that the court directly

addressed Petitioner's "contention [that] the trial judge . . .

-30-
invade[d] the autonomy of the jurors' deliberations." Clements, 747

N.E.2d at 694. Although the Appeals Court did not expressly

mention the relevant federal law, it relied on state court

precedent that in turn discussed the Sixth Amendment right to a

trial by an impartial jury. Additionally, the Appeals Court made

no indication that it was making a decision on the sole basis of

state law. Construing the Appeals Court's decision in the context

of Petitioner's Sixth Amendment claim, I agree with the majority

that the Appeals Court addressed Petitioner's federal claim on the

merits. The language employed by the Appeals Court in analyzing

Petitioner's claim and its reliance on a Massachusetts case that

expressly expounded the guarantee to an impartial jury, provide a

clear and reliable basis to conclude that there was an adjudication

on the merits.

I must emphasize, however, that the panel's decision

should not be interpreted as endorsing the view that recursive

citations to state case-law necessarily provide a reliable basis to

conclude that the state court addressed a federal claim on the

merits. This court has explicitly declined to apply AEDPA review

where the state court failed to address the federal claim. Fortini

v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001); Brown v. Maloney, 267

F.3d 36, 40 (1st Cir. 2001) (applying de novo review where the

state court's decision failed to address the federal claim that was

raised for the first time on rehearing and clarifying that de novo

-31-
review controlled given the absence of reasoning in the state

court's decision). Thus, in assessing whether a state court

adjudicated a federal claim on the merits there should be a clear

and articulable indication that the state court addressed the

claim. Although the language employed by the Appeals Court and its

reliance on a state case that included an explicit reference to the

Sixth Amendment right to a trial by an impartial jury is enough to

conclude there was an adjudication on the merits in this case, I

must caution that the panel's decision should not be read to adopt

a steadfast rule that mere citation to state case law warrants the

conclusion that an adjudication on the merits was made for AEDPA

purposes.

In exercising habeas review we do not require state

courts to employ particular language, or to include explicit

citations to federal case-law in their decisions. Coleman v.

Thompson, 501 U.S. 722, 739 (1991)("We encourage state courts to

express plainly, in every decision potentially subject to federal

review, the grounds upon which their judgments rest, but we will

not impose on state courts the responsibility for using particular

language in every case in which a state prisoner presents a federal

claim . . . ."). However, we should have a clear and articulable

basis to conclude that the state court addressed the federal claim.

The importance of this requirement is heightened by the fact that

once AEDPA's deferential review is held to apply, we are required

-32-
to gauge the reasonableness of the outcome in the context of the

federal law the state court applied to the facts of the case. See

Williams v. Taylor, 529 U.S. 362, 413 (2000)(explaining that a

state court decision amounts to an unreasonable application of

clearly established Supreme Court precedent if it "identifies the

correct governing legal principle from [the] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's

case").

As a postscript, I must stress that although AEDPA's

deferential standard of review discourages federal review of issues

that were addressed by the state courts on the merits, AEDPA did

not deprive state prisoners of their right to seek review in

federal court of their constitutional claims. See Washington v.

Schriver, 255 F.3d 45, 62 (2d Cir. 2001) (Calabresi, J. concurring)

(discussing the legislative history and purposes behind AEDPA and

28 U.S.C. § 2254(d)(1)). In order to ensure that state prisoners

receive vigorous review of their unadjudicated federal claims, we

should require a clear and articulable showing that the federal

claim was addressed on the merits.

-33-