United States Court of Appeals
For the First Circuit
No. 12-2515
DAVID COLLINS,
Petitioner, Appellant,
v.
GARY RODEN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Lori H. Levinson, with whom The Law Office of Lori H.
Levinson, PC, was on brief, for appellant.
Argie K. Shapiro, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.
April 18, 2014
KAYATTA, Circuit Judge. David Collins was tried and
convicted in Massachusetts state court on charges of forcibly
raping his nephew J.B. and J.B.'s friend, C.V.B. Collins
unsuccessfully sought to overturn that conviction in state court,
arguing that his attorney provided ineffective assistance by
failing to seek the admission of evidence that Collins's sister had
accused J.B. himself of sexually assaulting three of Collins's
nieces. Having exhausted his direct appeals, Collins filed a
habeas corpus petition in federal court. The district court
rejected Collins's claim. For the following reasons, we affirm.
I. Background
J.B., and J.B.'s friend, C.V.B., testified at trial that
Collins engaged in forcible oral sex with each of them on different
occasions in 1993, when both boys were fifteen years old.1 At the
time, Collins was dating J.B.'s mother, Pam. Several years later,
after their relationship had acrimoniously deteriorated, Collins
made statements to Pam expressing regret for "hurting" J.B., and
she thereafter reported Collins to the police in 1998. The
resulting investigation led to Collins's conviction in 2002 in
Massachusetts court on two counts of forcible rape of a child under
the age of sixteen. See Mass. Gen. Laws ch. 265, § 22A.
1
Unless otherwise noted, all facts in this opinion are
uncontested by the parties.
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Collins first appealed his conviction on three grounds not relevant
to this petition. See Commonwealth v. Collins, 60 Mass. App. Ct.
1111 (2004). When that effort failed, he filed a motion for a new
trial, arguing, among other things, that his trial counsel was
ineffective. That challenge concerned his trial counsel's failure
to present evidence available to Collins that shortly before Pam
reported Collins to the police, Collins's sister told Pam that
Pam's son, J.B., had sexually abused several of Collins's nieces,
and that one of those nieces was considering reporting J.B. to the
authorities.
Collins's trial counsel did make a halting oral attempt
to begin the process of moving to admit the evidence. But after
the government argued that it was inadmissible under the
Massachusetts rape shield statute, the trial court said "I don't
think there's a proffer. There's not going to be any evidence of
sexual conduct by any of the alleged victims." Apparently
persuaded or otherwise deterred, Collins's trial counsel made no
further effort to admit the evidence. Specifically, he did not
make a written proffer in support of the evidence he sought to have
admitted, a necessary precondition to a motion for admission of
evidence covered by the Massachusetts rape shield law, Mass. Gen.
Laws ch. 233, § 21B.
It is that cumulative mix of tentative and abandoned
effort that Collins claims deprived him of his constitutional right
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to effective counsel. Collins argues that his lawyer should have
pressed more properly and effectively for the admission of that
evidence, notwithstanding the challenge posed by the rape shield
statute. The statute provides that "[e]vidence of specific
instances of a victim's sexual conduct" is not admissible in a
prosecution for forcible rape of a child unless "after an in camera
hearing on a written motion for admission of same and an offer of
proof . . . the court finds that the weight and relevancy of said
evidence is sufficient to outweigh its prejudicial effect to the
victim." Id.
Collins has consistently asserted in his post-trial
proceedings that the omitted evidence was sufficiently weighty to
be admissible because it established bias and a motive to lie on
the part of his accusers. But as to how and why this is so,
Collins has been conclusory and cryptic. In his brief on this
appeal, he elliptically asserts that the evidence would have given
his trial counsel a basis to argue that "[Pam], J.B. and C.V.B.
fabricated accusations against Collins in retaliation for
[Collins's sister's] suggesting that J.B.'s prior sexual assaults
should be addressed, and in order to preclude Collins's family from
pursuing legal action against J.B. and not because Collins had in
fact committed any such acts." In his reply brief, Collins
modifies this assertion somewhat to cite as motives both
retaliation and a desire "to prevent further dissemination of
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information that J.B. had sexually abused Collins [sic] three
nieces."
In denying a post-trial motion alleging ineffective
assistance of counsel, the same state trial court judge who had
presided over Collins's trial, and who would have ruled on any
evidentiary issues had counsel pressed for admission of the
evidence, rejected Collins's ineffective assistance of counsel
argument because "[e]vidence of J.B.'s past sexual conduct would
likely have been inadmissible because it did not show bias or
motive to lie." The Massachusetts Appeals Court affirmed, finding
the evidence's admissibility was "dubious at best" and that, even
had it been admitted, it was "simply too attenuated to have
usefully shown a motive to lie" on the part of J.B., his mother, or
J.B.'s friend, C.V.B. See Commonwealth v. Collins, 71 Mass. App.
Ct. 1113 (2008) (unpublished). The Massachusetts Supreme Judicial
Court denied Collins's application for further appellate review in
a one line order. Commonwealth v. Collins, 451 Mass. 1108 (2008).
Collins then filed a petition for habeas corpus in
federal district court, arguing, inter alia, that he received
ineffective assistance from his counsel in his state court trial.2
See Collins v. Roden, Civil Action No. 08-40217-FDS, 2012 WL
2
Collins has completed his term of imprisonment on these
convictions but remains on probation. Cf. Jackson v. Coalter, 337
F.3d 74, 79 (1st Cir. 2003) (holding that a prisoner is "in
custody," and therefore eligible for habeas relief, when on
probation).
-5-
5866257, *2 (D. Mass. Nov. 16, 2012). The district court denied
Collins's habeas petition, including his request for an evidentiary
hearing. Id. at *3-8. The district court nonetheless cautiously
concluded that a reasonable jurist could disagree with its ruling
on Collins's ineffective assistance claim and therefore granted a
certificate of appealability on that issue. See 28 U.S.C. § 2253.
This appeal followed.
II. Standard of Review
We review a district court's denial of habeas relief de
novo. See, e.g., Shuman v. Spencer, 636 F.3d 24, 30 (1st Cir.
2011). Under the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 121 ("AEDPA"), and because
Collins's claim was "adjudicated on the merits in State court
proceedings," he may receive habeas relief only if the state court
adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Collins argues that, in denying him relief, the
Massachusetts Appeals Court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), which governs ineffective
assistance claims under the Sixth Amendment. Under AEDPA's "highly
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deferential" standard of review, to prevail on this theory Collins
would have to show that the Appeals Court could not have reasonably
concluded that he failed to prove he was entitled to relief under
Strickland's own "highly deferential" standard. See Harrington v.
Richter, 131 S. Ct. 770, 789 (2011).
III. Analysis
To be entitled to relief under Strickland a defendant
must show "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. at 687. Additionally, even if the performance of
Collins's trial counsel was seriously deficient, Collins would also
need to show that, had his counsel properly proffered the omitted
evidence, it is "reasonably likely" that the result of the criminal
proceeding would have been different. Strickland, 466 U.S. at 696.
"Reasonably likely," in this context, means that "[t]he likelihood
of a different result must be substantial, not just conceivable."
Harrington, 131 S. Ct. at 792. While Strickland's "reasonably
likely" standard is not quite a "more-probable-than-not standard,"
the difference "is slight and matters only in the rarest case."
Id. (citations omitted).
Collins's effort to make these difficult showings
encounters at the outset the observations of the Appeals Court that
the admissibility of the omitted evidence under Massachusetts's
rape shield law was "a dubious proposition at best." Collins, 71
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Mass. App. Ct. at 1113. We have no charter to question that
statement. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per
curiam) ("[A] state court's interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds
a federal court sitting in habeas corpus" even if that
interpretation is given in dicta in the state court opinion.).
With admissibility dubious at best, it can hardly be unreasonable
to conclude that admission would not have been reasonably likely
had the evidence been offered. And if the evidence would likely
not have been admitted, it was not unreasonable for the Appeals
Court to conclude that the failure to proffer it in the face of
opposition by the prosecution and a skeptical trial judge did not
have a "substantial" likelihood of affecting the trial.
Adding belt to suspenders, we also think the Appeals
Court was hardly unreasonable in regarding the probative force of
the evidence (and thus its likely impact on the jury's evaluation
of the record) as underwhelming. Collins's claim that the omitted
evidence would have established a reason for Pam, J.B., and C.V.B.
to "retaliate" against him by fabricating false charges of sexual
abuse is twice diminished in its probative weight. First, the
acrimonious relationship between Pam and Collins, as revealed to
the jury, already made it clear that Pam had reason to desire to
cause Collins harm. Second, according to Collins, J.B.'s alleged
abuse of the three nieces had long been a subject of discussion
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among the families, and had also prompted a prior report to
authorities. This history reduces to a minor talking point the
probative force of any chronological nexus between the accusations
against J.B. and the lodging of a complaint against Collins.
Collins's second theory about why the evidence shows bias
(that Pam wanted to use a charge against Collins to deter the
Collins family from making or further disseminating charges against
J.B.) is similarly implausible. The deterrent force of such a
charge would have resided in its threat, not its use. If deterring
further dissemination of charges against J.B. were Pam's true
motivation, then actually calling the police (as she did) would
have been counterproductive. Indeed, as Collins observes in his
reply brief, "the fact that Pam had made allegations against
Collins . . . spurred Collins' family to report J.B.'s sexual abuse
to the police."
In a twist on his argument, Collins also seems to suggest
that the evidence would have allowed the jury to surmise that, by
first charging Collins, Pam (and her son) might have hoped to
create a basis for arguing that any later charge against J.B. was
itself a retaliatory fabrication by Collins's family. Pam clearly
knew, though, that it would be easily demonstrated that the nieces'
accusations against J.B. long pre-dated the charge being brought
against Collins.
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For all of these reasons, and likely more, the
Massachusetts Appeals Court reasonably applied federal law in
rejecting Collins's claim of ineffective assistance of counsel.
IV. Conclusion
We affirm the district court's denial of Collins's
petition for habeas corpus.
So ordered.
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