Janosky v. St. Amand

United States Court of Appeals
For the First Circuit

No. 09-1012

SEAN JANOSKY,

Petitioner, Appellant,

v.

PETER ST. AMAND,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.

Francis J. Hurley, with whom Gannon & Hurley, P.C. was on
brief, for appellant.
Anne M. Thomas, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Martha Coakley, Attorney General, was on
brief, for appellee.

February 3, 2010
 SELYA, Circuit Judge. This case arises out of an armed

robbery gone awry. In his appeal, petitioner-appellant Sean

Janosky, a state prisoner, challenges the dismissal of his federal

habeas petition, which asserted violations of his constitutional

rights under the Sixth and Fourteenth Amendments. After careful

consideration, we affirm the denial of habeas relief.

I. BACKGROUND

On December 18, 1999, two men robbed a diamond merchant

at his place of business in Peabody, Massachusetts. The police

investigation led to John Pedoto, Jr., whom the police suspected

might have driven the getaway car. During questioning, Pedoto

named the petitioner as the lead robber — the man who had posed as

a prospective customer and then robbed the merchant at gunpoint.

The police found a piece of scrap paper in a search of

Pedoto's car. The paper bore the name "Shawn" and a seven-digit

telephone number. Within the Boston area code, that number was

listed to one Ann Janosky, at the petitioner's residence.

The police presented a black-and-white photo array to the

diamond merchant and his wife (the merchant had seen the thief both

during the robbery and while browsing in the store five days

earlier; his wife had seen the thief on the prior occasion). The

merchant identified the petitioner as the armed robber. His wife

could not identify anyone from this first array but identified the

petitioner when shown an in-color photo array one month later. The

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police obtained a search warrant for the petitioner's residence and

seized a brown ribbed turtleneck sweater, similar to one described

by the merchant as having been worn by the armed robber.

A state grand jury returned an indictment against the

petitioner and a codefendant, Mark Bova, whom the authorities had

come to believe was the second man involved in the heist. In

advance of trial, the petitioner's counsel moved to allow

questioning of police witnesses concerning the statements made by

Pedoto (who had since died). Counsel explained that the purpose of

this testimony was to show that once Pedoto falsely implicated the

petitioner in the robbery in order to shift the spotlight, the

police made a prescindent rush to judgment and failed to conduct a

full investigation into other potential suspects. Relatedly,

counsel asked for a limiting instruction to the effect that

Pedoto's statements should not be considered for the truth of the

matters asserted. The trial justice deemed these requests

premature, although he indicated that, if the evidence came in, he

would be inclined to give such an instruction.

The two defendants were tried together. At trial, the

prosecution entered into evidence a copy of the scrap of paper

seized from Pedoto's car. The petitioner's counsel objected to the

introduction of that evidence on hearsay and best evidence grounds,

but to no avail.

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 Also during the trial, the petitioner's counsel elicited

testimony from the investigating officers that Pedoto was the one

who first linked the petitioner with the robbery. Despite the

trial justice's earlier intimation, the petitioner's lawyer did not

request an instruction forbidding the use of this testimony as

proof of the matters asserted. No such instruction was given but,

at the codefendant's request, the trial justice instructed that

Pedoto's statements were offered solely against the petitioner and

could not be used against Bova.

On March 28, 2002, the jury convicted the petitioner of

armed robbery and carrying a firearm without a license. See Mass.

Gen. Laws ch. 265, § 17; id. ch. 269, § 10(a). At the same time,

it acquitted him of a charge of armed assault with intent to

murder. The jury acquitted Bova on the solitary charge against him

(armed robbery).

The petitioner appealed and, while his appeal was

pending, filed a motion for a new trial.1 The trial justice denied

this motion, and the petitioner appealed from that order. The

Massachusetts Appeals Court (MAC) consolidated the two direct

appeals and rejected both of them. Commonwealth v. Janofsky [sic],

862 N.E.2d 470 (Mass. App. Ct. 2007) (table).

1
At that point, and throughout the ensuing state and federal
proceedings (up to and including the instant appeal), the
petitioner's trial counsel no longer represented him.

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 The petitioner then filed an application for leave to

obtain further appellate review (ALOFAR). The Supreme Judicial

Court (SJC) summarily denied the ALOFAR. Commonwealth v. Janosky,

865 N.E.2d 1141 (Mass. 2007) (table).

The petitioner repaired to the federal district court and

timely sought habeas relief. 28 U.S.C. § 2254. Pertinently, he

claimed that: (i) the trial justice's failure to give a suitable

limiting instruction violated his constitutional rights to

confrontation and due process; (ii) his trial counsel's shoddy

performance violated his constitutional right to receive effective

assistance of counsel; and (iii) the trial justice's admission of

a copy of the scrap of paper seized from Pedoto's car violated his

Sixth Amendment right to confrontation. The district court

dismissed the petition. Janosky v. St. Amand, No. 08-10713 (D.

Mass. Nov. 17, 2008) (unpublished order). The court held that the

petitioner's first claim was procedurally barred; that the state

courts' rejection of the second claim did not represent an

unreasonable application of clearly established federal law; and

that the third claim had not been fully exhausted and, thus, was

not cognizable on federal habeas review. This timely appeal

ensued.

II. ANALYSIS

We divide our analysis into three segments, each

corresponding to a discrete claim of error. Although the three

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claims implicate distinct bodies of federal habeas law, all of the

district court's disputed legal determinations engender de novo

review. Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999).

A. Jury Instructions.

We begin with the petitioner's claim that the trial

justice abridged his rights by failing to give a sua sponte

limiting instruction concerning Pedoto's hearsay statements, and

made a bad situation worse by advising the jury (at the

codefendant's timely request) that those statements were admitted

only against the petitioner. The MAC did not deal with the merits

of this claim because the petitioner had not seasonably objected

at trial, rendering his claim procedurally barred. That a

procedural default took place cannot be gainsaid, and the district

court discerned no basis for excusing this procedural default.

Accordingly, it ruled that this claim was not subject to federal

habeas review. We examine that ruling.

Federal habeas review of a particular claim is precluded

in circumstances in which a state prisoner has defaulted on that

claim in state court by virtue of an independent and adequate

state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750

(1991). Setting to one side cases of actual innocence, this

general prohibition applies unless the habeas petitioner can

demonstrate cause for the default and actual prejudice. Id.

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 We have held, with a regularity bordering on the

monotonous, that the Massachusetts requirement for contemporaneous

objections is an independent and adequate state procedural ground,

firmly established in the state's jurisprudence and regularly

followed in its courts. See Gunter v. Maloney, 291 F.3d 74, 79

(1st Cir. 2002); Brewer v. Marshall, 119 F.3d 993, 1001 (1st Cir.

1997); Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995); cf.

Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988) (requiring

that a state procedural rule be consistently applied in order to

constitute an independent and adequate state ground). Here, the

MAC applied the state's contemporaneous objection rule to bar

review of this claim after engaging in a brief "miscarriage of

justice" assessment to determine whether it should look past the

procedural default.

This discretionary miscarriage-of-justice review does

not amount to a waiver of the state's contemporaneous objection

rule. See Gunter, 291 F.3d at 80; Burks, 55 F.3d at 716 n.2; Tart

v. Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991); cf. Beard v.

Kindler, 130 S. Ct. 612, 618 (2009) (holding that "a discretionary

state procedural rule can serve as an adequate ground to bar

federal habeas review"). Consequently, federal habeas review of

the petitioner's jury instruction claim is foreclosed unless —

with one exception noted below — he can demonstrate cause and

prejudice. See Burks, 55 F.3d at 716.

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 The petitioner contends that there is cause for his

procedural default because his trial counsel performed

ineffectively by failing to request a limiting instruction and not

objecting to the instruction actually given. The premise on which

this contention rests is sound: ineffective assistance of counsel,

so severe that it violates the Sixth Amendment, may constitute

sufficient cause to excuse a procedural default as long as the

petitioner exhausted his ineffective assistance claim in state

court. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). On this

point, exhaustion is not a problem; the petitioner assiduously

pursued a constitutionally focused ineffective assistance claim

before all the affected state courts, thus satisfying the

exhaustion requirement, and the state courts rejected the claim on

the merits. Consequently, the question reduces to whether trial

counsel's performance was constitutionally infirm.

That question calls into play the familiar test

elucidated in Strickland v. Washington, 466 U.S. 668 (1984). This

circuit has not yet ruled on whether the Strickland inquiry, when

nested within the cause-and-prejudice analysis, is limited by the

deferential standard of review set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.

§ 2254(d)(1). There is disagreement among courts about whether,

when the state court has decided a direct ineffective assistance

claim, that decision is entitled to AEDPA deference in the cause-

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and-prejudice context or whether the ineffective assistance claim

is reviewed de novo as to cause and prejudice. Compare, e.g.,

Wrinkles v. Buss, 537 F.3d 804, 813 (7th Cir. 2008) (applying the

AEDPA standard when analyzing an ineffective assistance claim to

establish cause), and Winston v. Kelly, 624 F. Supp. 2d 478, 497

n.6 (W.D. Va. 2008) (noting split of authority and concluding the

AEDPA standard applies), with Hall v. Vasbinder, 563 F.3d 222,

236-37 (6th Cir. 2009) (holding that even though a habeas

petitioner normally must satisfy the heightened AEDPA standard

with respect to an ineffective assistance claim, he need not do so

when arguing ineffective assistance in order to establish cause),

and Fischetti v. Johnson, 384 F.3d 140, 154-55 (3d Cir. 2004)

(similar). Here, however, the petitioner has not asked us to

apply de novo review for purposes of the cause analysis.

We are reluctant to address an important issue without

adversarial briefing; and, in any event, there is no need to

decide the issue here. De novo review is obviously more favorable

from the petitioner's standpoint, and we will assume without

deciding that de novo review applies. We indulge this assumption

because, even under that more favorable standard, the petitioner

fails to demonstrate ineffective assistance of counsel as cause

for his procedural default.

Strickland constructs a two-part algorithm for assessing

claims of ineffectiveness. Under this algorithm, a defendant must

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show both that counsel's performance was deficient and that it

prejudiced his defense. 466 U.S. at 687. An inquiring court need

not necessarily address both parts of this algorithm; if the court

determines that the defendant does not satisfy either part, it may

stop there. Id. at 697.

To establish deficient performance, a defendant must

show that, considering all the circumstances, "counsel's

representation fell below an objective standard of

reasonableness." Id. at 688. To establish prejudice, a defendant

must show that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

Id. at 694. This prejudice analysis is the same as the prejudice

analysis more generally used in connection with procedural

defaults. See Prou, 199 F.3d at 49.

In this instance, we need not decide whether trial

counsel's handling of the jury instructions descended to the level

of ineptitude necessary to constitute deficient performance.

Given the substantial evidence of the petitioner's guilt, there is

no reasonable probability that, had the matter been handled as the

petitioner now suggests, the outcome of his trial would have

changed. We explain briefly.

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 It is, of course, settled law that a court must weigh

the strength of the evidence in determining whether a sufficient

showing of prejudice has been made under Strickland. See United

States v. De La Cruz, 514 F.3d 121, 140-41 (1st Cir. 2008); Buehl

v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999). When the evidence of

guilt is substantial, courts routinely have found no prejudice

resulting from counsel's failure to request a limiting

instruction. See, e.g., Musladin v. Lamarque, 555 F.3d 830, 849

(9th Cir. 2009); Albrecht v. Horn, 485 F.3d 103, 129 (3d Cir.

2007); Anderson v. Sternes, 243 F.3d 1049, 1058 (7th Cir. 2001);

Garrett v. United States, 78 F.3d 1296, 1303 (8th Cir. 1996);

Scarpa v. Dubois, 38 F.3d 1, 16 (1st Cir. 1994).

Here, the evidence of the petitioner's guilt was

substantial (indeed, overwhelming). The victim and his wife both

identified the petitioner. The victim's eyewitness testimony was

especially powerful; he testified that he had engaged in a twenty-

minute, face-to-face conversation with the petitioner immediately

prior to the robbery. He also had seen him on another occasion,

five days earlier. And, finally, the victim's description of the

brown sweater worn by the armed robber matched apparel seized by

the authorities from the petitioner's home.

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 In comparison, the inculpatory effect of Pedoto's

statements was quite modest.2 Moreover, even though counsel did

not request a limiting instruction with respect to Pedoto's

hearsay statements, he explained the narrow objective of this

testimony in both his opening statement and his closing argument.

At these times, counsel repeatedly stressed that the purpose of

the evidence was to show that Pedoto falsely accused the

petitioner in order to avoid prosecution and that the police,

content with a bird in hand, thereafter neglected to undertake an

adequate investigation.

In light of the foregoing, we do not find any prejudice

in trial counsel's failure either to request a limiting

instruction or to object to the instruction actually given. It

follows that the petitioner cannot show "cause" through a showing

of trial counsel's alleged ineffectiveness.

Of course, even without a finding of cause and prejudice

in the conventional sense, a federal habeas court may excuse a

procedural default if the petitioner can demonstrate that a

failure to consider his claim will work a fundamental miscarriage

of justice. Coleman, 501 U.S. at 750. The miscarriage-of-justice

exception is narrow and applies only in extraordinary

circumstances — circumstances in which a petitioner makes some

2
The scrap of paper, seized from Pedoto's car, was admitted
independent of the testimony.

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showing of actual innocence. See Carrier, 477 U.S. at 496; Burks,

55 F.3d at 717-18. Here, however, the petitioner has not

attempted to make any such showing, and none is evident on the

face of the record.

That ends this aspect of the matter. Simply put, the

petitioner has not mustered the required showing of cause and

prejudice to excuse his procedural default. See Carrier, 477 U.S.

at 488 ("So long as a defendant is represented by counsel whose

performance is not constitutionally ineffective under the standard

established in Strickland . . . we discern no inequity in

requiring him to bear the risk of attorney error that results in

a procedural default."). The petitioner is thus barred from

litigating his procedurally defaulted jury instruction claim.

B. Ineffective Assistance.

We next address the petitioner's independent claim of

ineffective assistance of counsel. The petitioner asserts that

his trial counsel was ineffective in the ways previously mentioned

(failing to request a limiting instruction at the appropriate time

and not objecting to the instruction actually given) and in two

additional ways: eliciting damaging hearsay testimony from the

investigating officers and neglecting to investigate other

potential culprits. Because the state courts reached the merits

of the petitioner's independent ineffective assistance claim, we

apply the AEDPA's deferential standard of review. See 28 U.S.C.

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§ 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 412

(2000). Under this standard, we restrict our inquiry to whether

the relevant state-court decision was "contrary to, or involved an

unreasonable application of, clearly established Federal law." 28

U.S.C. § 2254(d)(1). Because the SJC summarily denied further

appellate review, we look to the last reasoned state-court

decision — in this case, the MAC's rescript. See Foxworth v. St.

Amand, 570 F.3d 414, 425-26 (1st Cir. 2009); Gunter, 291 F.3d at

80.

For habeas purposes, a state-court decision is contrary

to clearly established federal law if the state court employs a

rule that contradicts an existing Supreme Court precedent or if it

reaches a different result on facts materially indistinguishable

from those of the controlling Supreme Court precedent. Williams,

529 U.S. at 405-06. A state-court decision constitutes an

unreasonable application of clearly established federal law if it

identifies the correct rule, but applies that rule unreasonably to

the facts of the case sub judice. Id. at 407-08. To justify

federal intervention, the state court's application must be both

incorrect and unreasonable. See Leftwich v. Maloney, 532 F.3d 20,

23 (1st Cir. 2008) (explaining that "the state court's decision is

not vulnerable unless it evinces some increment of incorrectness

beyond mere error"); McCambridge v. Hall, 303 F.3d 24, 36 (1st

Cir. 2002) (en banc) (same).

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 The Strickland standard qualifies as clearly established

federal law for purposes of habeas review. See, e.g., Ouber v.

Guarino, 293 F.3d 19, 26 (1st Cir. 2002); see also Williams, 529

U.S. at 391. Although the MAC did not cite to Strickland in

resolving the petitioner's claim, it used a state-law analogue

that we have deemed a satisfactory surrogate for the Strickland

standard. See Ouber, 293 F.3d at 30 n.8 (explaining that the

Massachusetts ineffective assistance standard is at least as

favorable to defendants as the Strickland standard); accord Gomes

v. Brady, 564 F.3d 532, 540 n.5 (1st Cir. 2009); Evans v.

Thompson, 518 F.3d 1, 12 n.7 (1st Cir. 2008). Thus, the MAC's

decision cannot be regarded as contrary to clearly established

federal law.

The remaining question is whether the MAC's decision

denying the petitioner's ineffective assistance claim constituted

an unreasonable application of this standard in derogation of the

AEDPA. For the purpose of answering this question, we break the

claim into its component parts.

1. Jury Instructions. We can dispatch with celerity

the claim that trial counsel was ineffective in neither requesting

a limiting instruction nor objecting to the instruction actually

given. We already have concluded, in determining that there was

no cause for the petitioner's procedural default, that counsel was

not ineffective in these respects due to the absence of any

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prejudice. See supra Part II(A). For purposes of the cause

analysis, we assumed without deciding that de novo review applied.

See supra Part II(A). It follows inexorably that the petitioner's

independent ineffective assistance claim grounded on the same

facts cannot succeed under the less generous AEDPA standard of

review. See Hall, 563 F.3d at 239. Consequently, we have no

reason to discuss this claim further.

2. Eliciting Testimony. The petitioner maintains that

his trial counsel was ineffective in eliciting otherwise

inadmissible hearsay testimony anent Pedoto's statements to the

police. He insists that this strategy was plainly unreasonable

because it bolstered the victim's identification of the petitioner

and, in the bargain, sacrificed the petitioner's rights under the

Confrontation Clause because Pedoto was not available for cross-

examination. In an effort to illustrate the prejudicial effect of

this tactic, the petitioner notes that the trial justice placed

this testimony off limits as to his codefendant, and an acquittal

followed.

The MAC ruled that counsel's decision to elicit the

Pedoto hearsay testimony was not unreasonable because it could have

added weight to counsel's defense strategy, which was to portray

Pedoto as attempting to shift the blame and to suggest that the

police bit hook, line, and sinker, eschewing the completion of a

full investigation. The MAC further reasoned that counsel's

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strategy could have helped to cast doubt upon the victim's strong

identification of the petitioner as the armed robber.

We cannot say that the MAC's resolution of this claim

was unreasonable. Where strategic choices are involved, reviewing

courts must be careful not to lean too heavily on hindsight. See

Strickland, 466 U.S. at 689; Ouber, 293 F.3d at 25. Rather, a

reviewing court must be somewhat deferential, applying "a strong

presumption that counsel's conduct falls within the wide range of

reasonably professional assistance." Strickland, 466 U.S. at 689.

Here, counsel's decision to elicit the Pedoto hearsay

testimony was part of a calculated trial strategy aimed at poking

holes in the police investigation. That strategy was plausible

because, as counsel established, the officers failed to locate any

physical evidence (e.g., fingerprints, the gun that the robber

used, or the purloined jewelry), failed to preserve photographs

from the crime scene, and could not produce the originals of

certain items seized from Pedoto's car (e.g., the scrap of paper).

The fact that the hearsay testimony was inadmissable under the

Confrontation Clause had the petitioner objected at that time does

not demand a different result. See United States v. Stephens, 609

F.2d 230, 232-33 (5th Cir. 1980) (holding that counsel may waive

his client's right of confrontation "so long as the defendant does

not dissent . . . and so long as it can be said that the attorney's

decision was . . . part of a prudent trial strategy"); see also

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Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir. 1954) (holding

that counsel, in the presence and on behalf of an accused, may

waive the accused's right of confrontation).

To be sure, counsel's strategy was not free from risk —

but the state's case against the petitioner was formidable, and

counsel did not have any really attractive options. When, as in

this case, counsel's decision to elicit potentially damaging

testimony is part of a plausible trial strategy, that decision does

not fall below an objective standard of reasonableness.3 See,

e.g., United States v. Toms, 396 F.3d 427, 436 (D.C. Cir. 2005);

Campbell v. United States, 364 F.3d 727, 734 (6th Cir. 2004). So

it is here.

3. Failure to Investigate. The petitioner posits that

his trial counsel was ineffective in failing to conduct an adequate

investigation into the availability of exculpatory evidence.

3
The MAC also concluded that the petitioner was not
prejudiced by counsel's decision to elicit the hearsay testimony.
In so holding, it rejected the petitioner's argument that his
codefendant's acquittal added weight to his claim of
ineffectiveness. As the MAC recognized, there were several
features of the case against the codefendant that distinguished it
from the case against the petitioner (e.g., the merchant did not
observe Bova as closely, did not converse with him, gave a flawed
description of him immediately following the robbery, and his
identification of Bova was not corroborated by other evidence).
Nevertheless, we need not probe these differences too deeply.
After all, the MAC's supportable finding that counsel's performance
was not constitutionally deficient avoids any need to reach the
issue of prejudice. See, e.g., Pondexter v. Quarterman, 537 F.3d
511, 521 (5th Cir. 2008) (addressing only one prong of the two-
pronged inquiry, and stopping there).

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Specifically, he faults counsel for neglecting to interview law

enforcement officers about other potential suspects. The MAC

determined that counsel's decision to concentrate on exposing flaws

in the police investigation, rather than hunting for other

suspects, was not objectively unreasonable. In our view, this

determination was not an unreasonable application of clearly

established federal law.

Under Strickland's performance prong, trial counsel "has

a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary." 466

U.S. at 691. But this duty does not invariably require a lawyer,

at all times and under all circumstances, to probe every

evidentiary lead. See Smith v. Workman, 550 F.3d 1258, 1270 (10th

Cir. 2008); Williams v. Allen, 542 F.3d 1326, 1337 (11th Cir.

2008). In the last analysis, a decision to eschew investigation

"must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel's

judgments." Strickland, 466 U.S. at 691.

Here, it was not unreasonable for the MAC to conclude

that trial counsel performed acceptably in deciding to focus on the

flaws in the police investigation as opposed to pursuing evidence

of other possible suspects. The relevant inquiry is not what

defense counsel might ideally have mounted but, rather, whether the

choice that he made was within the universe of objectively

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reasonable choices. Siripongs v. Calderon, 133 F.3d 732, 736 (9th

Cir. 1998).

We are dealing here not with an oversight but with a

conscious strategic decision. In the circumstances of this case,

reasonably competent counsel could have determined that the best

defense was a good offense — a no-holds-barred attack designed to

discredit the officers' investigation and undermine the reliability

of their informant.

In all events, the decision not to probe for other

possible suspects must be assayed in light of the strategy that

counsel devised. See Lema v. United States, 987 F.2d 48, 55 (1st

Cir. 1993). Interviewing the officers about other potential

suspects could well have backfired. Depending on the results — a

matter of sheer guesswork based on the petitioner's proffer — that

tactic might have made the investigation seem more credible. On

this record, not conducting such interviews was within the universe

of objectively reasonable strategic choices. Thus, the decision

passes constitutional muster. See id.

If more were needed — and we doubt that it is — the

petitioner's allegation that counsel's failure to investigate

prejudiced his defense finds no support in the record. Where, as

here, the result of counsel's alleged failure to investigate is

wholly speculative, Strickland's prejudice prong is not satisfied.

See United States v. Porter, 924 F.3d 395, 397 (1st Cir. 1991)

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(rejecting claim that counsel's failure to interview witnesses

constituted ineffective assistance absent any showing as to how

that failure deprived the defendant of a viable defense); see also

Cummings v. Sirmons, 506 F.3d 1211, 1229 (10th Cir. 2007).

C. The Scrap of Paper.

The last item in the petitioner's asseverational array

is his claim that the admission into evidence of a copy of the

scrap of paper seized from Pedoto's car violated his rights under

the Confrontation Clause because he was unable to cross-examine

Pedoto (who was deceased at the time of trial) about the paper.

The district court did not reach the merits of this claim but,

rather, ruled that the petitioner had not exhausted it in state

court and, thus, could not raise it in a federal habeas proceeding.

We review de novo the district court's determination that the

petitioner's claim was unexhausted. Adelson v. Dipaola, 131 F.3d

259, 262 (1st Cir. 1997).

"The exhaustion doctrine honors hallowed principles of

federal-state comity. It serves to ensure that the state courts

are sufficiently apprised of a federal claim to have a meaningful

opportunity to address that claim." Rashad v. Walsh, 300 F.3d 27,

41 (1st Cir. 2002). Consistent with this doctrine, a state

prisoner must exhaust available state remedies before seeking

federal habeas relief. 28 U.S.C. § 2254(b)(1)(A); Picard v.

Connor, 404 U.S. 270, 275 (1971).

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 In order to exhaust a federal claim, a petitioner must

present that claim "fairly and recognizably" to the state courts.

Adelson, 131 F.3d at 262. In other words, he must have tendered

the claim "in such a way as to make it probable that a reasonable

jurist would have been alerted to the existence of the federal

question." Scarpa, 38 F.3d at 6.

In Massachusetts, the SJC is the highest court in the

state system. Thus, exhaustion requires presentation of the claim

in question to that court. Baldwin v. Reese, 541 U.S. 27, 29

(2004). In most cases — the exceptions are not implicated here —

the SJC controls its own docket and may exercise discretion as to

whether or not to grant reviews. Even if the SJC declines to grant

review, however, the petitioner must have fairly presented the

federal claim within the four corners of his ALOFAR. Clements v.

Maloney, 485 F.3d 158, 162 (1st Cir. 2007); Adelson, 131 F.3d at

263.

A petitioner will satisfy the fair presentment

requirement if he does any of the following in his ALOFAR: (i)

cites a provision of the federal Constitution upon which the

relevant claim rests; (ii) advances the claim in a manner that

alerts the state court to its federal nature; (iii) cites federal

constitutional precedents in support of the claim; or (iv)

explicitly alleges a violation of a right specifically protected in

the federal Constitution. Clements, 485 F.3d at 162. In some

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situations, a petitioner may satisfy the presentment requirement by

citing to state-court precedents, which themselves rely on federal

constitutional law. Id. Similarly, he may achieve that result by

asserting a state claim that is, for all practical purposes,

indistinguishable from a federal constitutional claim. Id.

Here, the petitioner raised his Sixth Amendment claim in

front of the MAC. But when he thereafter applied for further

appellate review, he advanced only state-law claims with respect to

the admission of the scrap of paper. Specifically, his ALOFAR

argued that the admission of a copy of the scrap of paper

transgressed the best evidence and hearsay rules, nothing more.

The portion of the ALOFAR that discussed the scrap of paper did not

identify the claim as federal in nature, did not rely on any

federal case law, and did not argue the point in federal

constitutional terms. By the same token, the state-law precedents

cited in that portion of the ALOFAR did not themselves rely on

federal law. Under these circumstances, our decision in Clements,

id. at 163-67, is controlling. Accordingly, we hold that the

petitioner did not present his Sixth Amendment claim vis-à-vis the

scrap of paper fairly and recognizably to the SJC.

In a vain attempt to parry this thrust, the petitioner

invokes our decision in Barresi v. Maloney, 296 F.3d 48 (1st Cir.

2002). There, we authorized a federal habeas court to look not

only to the ALOFAR but also to other submissions that were before

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inferior state courts in order to determine if the petitioner had

fairly presented a particular federal claim. Id. at 52-53.

Nevertheless, we have limited the application of the Barresi

"background" approach to cases in which the ALOFAR is ambiguous as

to the nature of the particular claim. See Clements, 485 F.3d at

163.

The petitioner does not contest the salience of this

limitation. Instead, he argues that his ALOFAR is ambiguous and,

on that basis, urges us to look to the brief that he filed before

the MAC, which asserted a barebones Sixth Amendment violation with

regard to the scrap of paper. Assuming, without deciding, that

Barresi is still good law,4 that case's "background" approach has

no bearing here. Unlike in Barresi, the petitioner's ALOFAR is

nose-on-the-face plain and not at all ambiguous. The petitioner

explicitly raised other federal claims in his ALOFAR. In view of

this dichotomy, we cannot overlook his deliberate omission of any

hint of a federal claim in connection with the scrap of paper. As

in Clements, that claim is "unmistakably couched only in state law

terms." Id. at 165. In fairness to the SJC, we must treat it as

such.

4
In Clements, 485 F.3d at 164-65, we left open the question
of whether the Supreme Court's decision in Baldwin, 541 U.S. at 31-
32, abrogated Barresi's "background" approach. We take the same
prudential stance here.

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 The short of it is that the petitioner did not duly

present a federal claim in regard to the scrap of paper in his

ALOFAR. Consequently, the federal claim that he proffered in the

district court was unexhausted, and the district court

appropriately dismissed it.

III. CONCLUSION

We need go no further. For the reasons elucidated

above, we affirm the dismissal of the petitioner's application for

a writ of habeas corpus.

Affirmed.

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