Connolly v. Roden

United States Court of Appeals
For the First Circuit

No. 13-1191

EVERETT H. CONNOLLY,

Petitioner, Appellant,

v.

GARY RODEN,

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,
Thompson, Circuit Judge,
and Smith,* District Judge.

Robert F. Hennessy, with whom Thompson & Thompson, PC was on
brief, for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General of Massachusetts, was on
brief, for appellee.

May 21, 2014

*
Of the District of Rhode Island, sitting by designation.
 LYNCH, Chief Judge. Petitioner Everett Connolly seeks

the grant of habeas corpus vacating his state court convictions

from 2006 for drug distribution and trafficking on the grounds that

the state proceedings violated his federal Confrontation Clause

rights, as articulated in Melendez-Diaz v. Massachusetts, 557 U.S.

305 (2009). The Massachusetts Supreme Judicial Court (SJC) had

acknowledged that there was Melendez-Diaz error but found it

harmless under a standard equivalent to the federal standard under

Chapman v. California, 386 U.S. 18, 24 (1967).

On federal habeas review, the district court denied the

petition, reasoning that the state courts had already found that

the error was harmless and that the petitioner could not show

sufficient injury under the highly deferential standards announced

by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637

(1993), and Fry v. Pliler, 551 U.S. 112, 119-20 (2007). See

Connolly v. Roden, No. 09-11987, 2013 WL 139702, at *3 (D. Mass.

Jan. 11, 2013).

We affirm. We conclude that under the Brecht standard of

review, which is even more deferential than the ordinary standard

of review under the Antiterrorism and Effective Death Penalty Act

("AEDPA"), 28 U.S.C. § 2254(d)(1), petitioner has failed to show

the "substantial and injurious effect or influence" required to set

aside the SJC's affirmance of his conviction. Fry, 551 U.S. at 116

(quoting Kotteakos v. United States, 386 U.S. 750, 776 (1946)).

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 I.

The vast majority of the key facts of this case are

undisputed. Massachusetts law enforcement officers began

investigating Connolly for suspected cocaine distribution in 2003.

The investigation included surveillance and observation by police

officers, which found Connolly making numerous apparent drug sales

using his minivan. Commonwealth v. Connolly, 913 N.E.2d 356, 361

(Mass. 2009). On two separate occasions in August 2004, an

undercover officer made controlled purchases of crack cocaine from

Connolly. During the first purchase, the undercover officer

obtained what was later measured to be 1.2 grams of crack cocaine

for $200. In the second, the officer obtained 0.56 grams of crack

cocaine for $100.

In light of the controlled purchases, the police obtained

an arrest warrant for Connolly and a search warrant to search

Connolly's minivan and its occupants. Id. at 362. The warrants

were executed on September 9, 2004. During the search of

Connolly's minivan, the police found a "large ball" of crack

cocaine,1 "wrapped in electrical tape and later determined to weigh

124.31 grams," wedged under the dashboard. Id.

Connolly was indicted by a state grand jury in December

2004 on two counts of cocaine distribution and one count of cocaine

1
Cocaine, ordinarily a powder, can be processed into crack
cocaine, a solid, "rock-like" substance. See, e.g., United States
v. Brown, 450 F.3d 76, 80-81 (1st Cir. 2006).

-3-
trafficking.2 See Mass. Gen. Laws ch. 94C, §§ 32A(c)

(distribution), 32E(b)(3) (trafficking). At trial in August 2006,

the prosecution introduced several pieces of evidence to prove drug

type and, as to the trafficking charge, quantity.3 With respect to

the controlled purchases, Detective Lieutenant John Allen, who had

25 years of experience in narcotics, testified that he had

personally field-tested the substances at the time of each of the

two August 2004 purchases and concluded that they were cocaine; the

undercover officer who made the purchases also testified that

Connolly had said the substances were crack cocaine. Connolly, 913

N.E.2d at 375. With respect to the cocaine found during the

minivan search, Sergeant John Milos, who had investigated hundreds

of cocaine distribution cases over seventeen years of experience,

testified that field tests showed the ball recovered from the van

was cocaine. Id. Trooper James Bazzinotti, who had thirteen years

of experience in conducting drug searches, further testified that

the substance was cocaine, and that the ball looked "like a baked

potato," was "bigger than a baseball," and was a "large ball,

2
Unlike federal drug trafficking laws, see, e.g., 21 U.S.C.
§ 841, Massachusetts law does not distinguish between powder
cocaine and "cocaine base," or crack cocaine.
3
For all counts, the prosecution had to prove that the
substance in question was cocaine. The distribution counts,
however, did not require any evidence of quantity; that evidence
was relevant only to the trafficking count, for which the
prosecution had to prove a quantity of between 100 and 200 grams.
See Mass. Gen. Laws ch. 94C, §§ 32A(c), 32E(b)(3).

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hard," and was "a very solid piece" of cocaine. Id. at 375-76.

The jury also had direct physical access to the actual cocaine,

which was sent to the jury room, although the ball was "more

flaked, more crushed up" after the chemical analysis. Id. at 376.

The Melendez-Diaz problem in the case arose because the

prosecution also introduced a certificate from the drug analysis

laboratory explaining that the powder in the ball was cocaine and

weighed 124.31 grams, without calling the analyst as a witness and

so not making the analyst available for confrontation. At the time

the certificate was admitted, the judge instructed the jury that

under Massachusetts law, the prosecution was not required to offer

live testimony from the analyst and could introduce the certificate

alone without any adverse inferences being drawn due to the

analyst's absence. Connolly objected to the admission of the

certificate on Fourth Amendment grounds but not on Confrontation

Clause grounds. He did not ask to cross-examine the analyst who

prepared the lab certificate, nor did he object to the jury

instruction on Confrontation Clause grounds. The closing jury

instructions allowed the jury to consider the laboratory

certificate but cautioned that "[i]t's for you to determine whether

you credit it or not. . . . [Y]ou're not compelled to accept it."

Connolly's theory of the case was that the prosecution

had not adequately proven that he was the drug possessor. He

identified potential weaknesses in the testimony of the

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government's witnesses to argue that there was insufficient

evidence that he was actually involved in the two controlled

purchases or that he was aware that the ball of crack was in his

van. Connolly made no challenge to the quantity of crack for

purpose of the trafficking charge. In fact, in closing arguments,

his attorney appeared to accept the quantity at face value and

challenged only identity, arguing: "[t]he Commonwealth has to prove

to you beyond a reasonable doubt that Mr. Connolly knew that those

124 grams w[ere] in his vehicle on the morning in question. I

suggest to you there's no proof of it."

The jury convicted Connolly on all counts. Following the

conviction, Connolly appealed to the Massachusetts Appeals Court.

In January 2009, the SJC transferred the case to its own docket sua

sponte for direct review. While the case was pending in the SJC,

the U.S. Supreme Court decided Melendez-Diaz v. Massachusetts,

which held that, absent a showing of unavailability, the

introduction of a lab certificate without the opportunity to cross-

examine the technician who created it violates a defendant's Sixth

Amendment Confrontation Clause rights. 557 U.S. at 311. Following

Melendez-Diaz, Connolly presented the narrow argument that his

conviction must be reversed because the trial judge had given a

contemporaneous jury instruction upon the introduction of the

certificates stating that the prosecution was not required to

produce the lab analyst, in violation of his Confrontation Clause

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rights. He had not raised that argument at any earlier point in

the litigation.

The SJC read Connolly's argument charitably in his favor

by considering not only the instruction but also whether admission

of the certificates themselves was error. See Connolly, 913 N.E.2d

at 374-75. It decided that there was Melendez-Diaz error in

admitting the certificates without presenting the analyst for

cross-examination, but rejected Connolly's claim that his

conviction must be reversed on that account. Using a state law

standard analogous to the federal standard for harmless error and

reading any potential waiver problem in Connolly's favor, the SJC

reasoned that any error "was harmless beyond a reasonable doubt"

because the jury had ample evidence aside from the lab certificates

from which it could have concluded that the quantity of cocaine was

between 100 and 200 grams. Id. at 374-76; cf. Chapman v.

California, 386 U.S. 18, 24 (1967) (explaining that federal

constitutional error is harmless only if the reviewing court can

"declare a belief that it was harmless beyond a reasonable doubt").

It likewise rejected Connolly's other claims of error and affirmed

the conviction.

Connolly petitioned for habeas review in federal district

court under 28 U.S.C. § 2254. He argued that the state proceedings

had violated, inter alia, his Sixth Amendment rights under

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Melendez-Diaz.4 For the first time, he argued that the prejudice

came from the actual admission of the certificate without the

analyst's live testimony (rather than from the contemporaneous jury

instruction).5 In a thorough opinion, the federal district court

denied Connolly's petition. The court, applying the Brecht

standard, concluded that "the erroneous admission of the chemical

analyses did not have a substantial and injurious effect on the

verdict with respect to the weight of cocaine charged." Connolly,

2013 WL 139702, at *3. The court reasoned that although the jury

likely did rely on the certificates, the significant amount of

other evidence, "including especially the jurors' opportunity to

directly examine the cocaine itself," meant that any injury from

admitting the certificates was "not substantial enough to allow

habeas relief under Brecht." Id.

4
Connolly also made other claims of error no longer at
issue. The district court rejected each of these arguments but did
include them all in the later certificate of appealability. See
Connolly v. Roden, No. 09-11987, 2013 WL 531126, at *1 (D. Mass.
Feb. 13, 2013). At oral argument, Connolly's counsel rightly
conceded that the Melendez-Diaz claim was the only viable claim.
We do not discuss the others.
5
Although Connolly's argument has shifted from the way he
presented it to the SJC, he has nonetheless satisfied the
exhaustion requirements of 28 U.S.C. § 2254(b) because the SJC
explicitly reached the argument he is now making, so he would be
barred from raising them again in state court under principles of
res judicata. See id. § 2254(c).

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 II.

We review the district court's denial of a petition for

a writ of habeas corpus de novo where, as here, the court has taken

no evidence and has not made its own factual findings. See, e.g.,

Kirwan v. Spencer, 631 F.3d 582, 587 (1st Cir. 2011).

A.

We begin by describing the applicable legal standards

regarding habeas and constitutional error. In 1967, the Supreme

Court in Chapman v. California articulated the constitutional

harmless error standard, which provides that, on direct appellate

review, an error at trial affecting the defendant's constitutional

rights will be deemed harmless only if it can be shown to be

harmless beyond a reasonable doubt. 386 U.S. at 24. The Court has

also repeatedly made clear, however, that the standards that apply

on collateral review may differ from those that would apply on

direct review. See Brecht, 507 U.S. at 634. To that end, the

Court has held that a federal court on collateral review of a state

appellate court's application of Chapman should not apply the same

harmless error standard but instead should use an "actual

prejudice" standard. Id. at 637 (quoting United States v. Lane,

474 U.S. 438, 449 (1986)) (internal quotation marks omitted).

Specifically, as the Court explained in Brecht v. Abrahamson, a

habeas petitioner in such a case must show that the error "had

substantial and injurious effect or influence in determining the

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jury's verdict." Id. (quoting Kotteakos v. United States, 328 U.S.

750, 776 (1946)) (internal quotation marks omitted).6 That was the

law before Congress intervened.

In 1996, Congress passed AEDPA, which provides that a

habeas petition may not be granted unless the state court's

decision "was contrary to, or involved an unreasonable application

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

Court of the United States." 28 U.S.C. § 2254(d)(1). In Mitchell

v. Esparza, 540 U.S. 12, 18-19 (2003) (per curiam), the Court

applied the AEDPA standard to a state court's use of Chapman,

explaining that "when a state court determines that a

constitutional violation is harmless [under Chapman], a federal

court may not award habeas relief under § 2254 unless the

harmlessness determination itself was unreasonable." Fry, 551 U.S.

at 119 (describing Mitchell).

Four years later, the Court returned to this field in Fry

v. Pliler. In Fry, the state courts had not applied Chapman to

determine whether a constitutional error at trial was harmless.

See id. at 115. Without overruling Esparza, the Court ruled that

6
Although it does not say so explicitly, Fry's language
strongly implies that the burden is on the petitioner. The Fry
Court reaffirmed "the requirement that a petitioner also satisfy
Brecht's standard" in certain cases. 551 U.S. at 119 (emphasis
added); see also Dominguez v. Duval, 527 F. App'x 38, 40 (1st Cir.
2013) (explaining that habeas standards under AEDPA "requir[e] a
habeas petitioner to show a state court's unreasonable application
of Supreme Court law").

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the Brecht standard still governs, regardless of whether the state

court applied Chapman. Id. at 119. As the Court explained, the

combined AEDPA/Chapman standard announced in Esparza, "which

requires only that the state court's harmless-beyond-a-reasonable-

doubt determination be unreasonable," is "more liberal" than the

Brecht "actual prejudice" standard. Id. at 119-20. As a result,

the Court held, the Brecht standard "obviously subsumes" the

Esparza standard, and federal courts need not formally apply both

tests; the Brecht test alone is sufficient. Id. at 120.

The Courts of Appeals have differed in their

interpretations of Fry. Some have concluded that Fry bars the use

of the Esparza standard entirely. See Wood v. Ercole, 644 F.3d 83,

94 (2d Cir. 2011) ("[W]e conclude that the 'unreasonable

application of Chapman' standard does not survive Fry."). Others

have concluded that the Supreme Court mandated a two-part test,

under which a habeas petitioner must first show that the state

court's application of Chapman was unreasonable under AEDPA and

then must show that the state proceedings had "substantial and

injurious effect or influence" under Brecht. See Johnson v.

Acevedo, 572 F.3d 398, 404 (7th Cir. 2009) ("If the state court has

conducted a harmless-error analysis, the federal court must decide

whether that analysis was a reasonable application of the Chapman

standard. If the answer is yes, then the federal case is over and

no collateral relief issues. . . . If the answer is no -- either

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because the state court never conducted a harmless-error analysis,

or because it applied Chapman unreasonably -- then § 2254(d) drops

out of the picture and the federal court must . . . apply the

Brecht standard to determine whether the error was harmless."

(emphasis added)); see also Gongora v. Thaler, 710 F.3d 267, 274

(5th Cir. 2013) (per curiam) (contemplating two-step process in

dicta), reh'g en banc denied, 726 F.3d 701, cert. denied, 134 S.

Ct. 941 (2014).

Still other circuits have adopted a flexible approach,

explaining that "a habeas court remains free" to apply the Esparza

test and end the case if the state court's decision was reasonable,

but emphasizing that the court need not do that and may instead "go

straight to Brecht with full confidence that the AEDPA's stringent

standards will also be satisfied." Ruelas v. Wolfenbarger, 580

F.3d 403, 413 (6th Cir. 2009).7 This circuit has not yet weighed

in on the issue.8

7
Many of the cases attempting to apply Fry have also
generated vigorous dissents. Given the apparent disagreement both
between and within the various circuit courts, this field may be
ripe for Supreme Court review.
8
Petitioner cites Foxworth v. St. Amand, 570 F.3d 414, 435
(1st Cir. 2009) to argue that this circuit has already reached the
issue. According to Connolly, Foxworth announced yet another
alternative, that no deference to the state court is owed at all.
We do not read Foxworth to support that conclusion. Foxworth
explicitly acknowledges that Brecht is "more forgiving" than the
Esparza test. Id. We read this dicta in Foxworth as permitting,
but not requiring, direct application of the Brecht standard.

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 We agree with the Sixth Circuit's flexible approach. As

that court noted, Esparza has not been overruled; consequently, we

do not read Fry to bar the use of the Esparza test entirely.

Contra Wood, 644 F.3d at 94. At the same time, Fry does explicitly

state that "it certainly makes no sense to require formal

application of both tests." Fry, 551 U.S. at 120 (first emphasis

added). Thus, we do not follow those circuits that require a two-

step process. Instead, we note that Fry established that the

Brecht standard is harder to satisfy than the Esparza standard, and

that any case where the petitioner can show prejudice under the

Brecht standard will necessarily meet the Esparza/AEDPA standard.

There is clear logic to that position: if an error had a

"substantial and injurious" effect on a jury's verdict (Brecht

standard), then it is necessarily unreasonable to conclude that the

error was harmless beyond a reasonable doubt (Esparza standard).9

See Ruelas, 580 F.3d at 412-13.

Given that logical framework, we conclude that when a

state court decides that a constitutional error is harmless beyond

a reasonable doubt under Chapman, a federal court on habeas review

may choose between two equally valid options. The court may apply

Esparza and then move on to the Brecht test only if the state

9
This reasoning applies when the federal habeas court is
reviewing the same record as the state court. We need not consider
the alternative case.

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court's decision was an unreasonable application of Chapman.

Alternatively, the court may begin with the Brecht test directly.10

B.

With this framework in mind, we turn to the facts of this

case. This case lends itself to the first approach, because the

petitioner has not met his burden to make the threshold showing

that the SJC's conclusion that any error was harmless under

Chapman11 was unreasonable.

The error asserted, to be clear, is not that the lab

reports contained factual inaccuracies or were unfairly prejudicial

to the petitioner. Rather, Connolly asserts that the

constitutional error was in denying him the opportunity to cross-

examine the lab technician who prepared the drug certificates. In

fact, Connolly's brief to the SJC did not argue that the Melendez-

Diaz error prejudiced him as to the strength of the evidence of the

10
Although this court has not expressly considered this
question, the case in which we came closest to the issue is
consistent with this approach. See Delaney v. Bartee, 522 F.3d
100, 105 (1st Cir. 2008) (applying Fry to claim of constitutional
error by considering but bypassing question of whether decision was
an unreasonable application of federal law and moving directly to
question of whether error had substantial and injurious effect on
jury's verdict).
11
The SJC did not explicitly cite Chapman but instead relied
on an identical state law doctrine rooted in the federal case. See
Petrillo v. O'Neill, 428 F.3d 41, 45 (1st Cir. 2005) (explaining
that Massachusetts standard of harmless error is based on Chapman);
Connolly, 913 N.E.2d at 374-76 (applying Massachusetts standard).
We treat that approach as an application of federal law. See
Petrillo, 428 F.3d at 45.

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weight of cocaine. Instead, he focused on the instruction given

with the admission of the certificates explaining that, under a

state statute, an analyst was not needed to appear in person.

This, he argued, prejudiced his ability to argue that the absence

of the analyst was a weakness in the prosecution's case. He did

not argue to the SJC, nor does he now argue to us, that had he been

able to confront the chemist, the outcome would have been

different.

Nonetheless, the SJC did consider whether the admission

of the drug certificates themselves, not just the improper jury

instruction, prejudiced Connolly's case. The SJC explained its

reasoning as follows:

[W]e conclude that the [Melendez-Diaz] error
was harmless beyond a reasonable doubt. We
consider first the sales the defendant made to
the undercover agent and then the substance
that was found in his minivan. An undercover
officer testified that she bought from the
defendant, in two controlled purchases shortly
before his arrest, a substance that the
defendant called crack cocaine. Detective
Lieutenant John Allen, an officer with
twenty-five years of experience in narcotics
investigations, testified that he field tested
the substances at the time of each purchase
and each tested positive for cocaine. He was,
of course, available for cross-examination.
Moreover, the quantity sold was not essential
for distribution purposes. See Commonwealth
v. Terrelonge, 42 Mass. App. Ct. 941, 941–942,
678 N.E.2d 1203 (1997).
With respect to the cocaine found in
the search of the defendant's minivan,
Sergeant John Milos, a police officer with
approximately seventeen years of experience in
narcotics investigations who had investigated

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"high hundreds" of cocaine distribution cases,
was one of the officers who found the cocaine
in that vehicle. He testified that he field
tested chunks of the white substance recovered
from the vehicle immediately after it was
seized, before the substance was sent to the
State police laboratory, and that the
substance tested positive for cocaine. He
identified the ball of cocaine at trial as the
one that was recovered from the minivan.
Trooper James Bazzinotti, who had thirteen
years of experience conducting drug searches
with a narcotics detection canine, also
testified that the substance appeared to him
to be cocaine. Both of these witnesses were
available for cross-examination.
The weight of the 124.31 grams found in
the minivan was significant because the
defendant was convicted of trafficking in
cocaine between one hundred and 200 grams.
Sergeant Milos testified that one-eighth ounce
of cocaine was the equivalent of 3.5 grams and
that one-quarter ounce was double that, or
seven grams. From that evidence, the jury
could extrapolate that one ounce was
twenty-eight grams and that one hundred grams
was therefore less than four ounces. See
Commonwealth v. Thomas, 439 Mass. 362, 365,
787 N.E.2d 1047 (2003) (jury expected to apply
their common sense and experience). Trooper
Bazzinotti testified that, when he found the
cocaine in the minivan, it was wrapped in
electrical tape. He examined it and it looked
"like a baked potato"; it was "bigger than a
baseball." The trooper described the cocaine
after the electrical tape was unwound as a
"large ball, hard," and "a very solid piece of
. . . block cocaine."
The unwrapped cocaine was introduced in
evidence and taken to the jury room where the
jurors could see the amount for themselves,
although after the chemical analysis the
cocaine was "more flaked, more crushed up ...
the original package was more solid." The
jury could determine that a large, hard ball
weighed more than four ounces. We permit lay
witnesses to testify to opinions such as size,
weight and distance, all of which require

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 judgment. See Commonwealth v. Moore, 323
Mass. 70, 76–77, 80 N.E.2d 24 (1948), citing
Commonwealth v. Sturtivant, 117 Mass. 122, 123
(1875) ("Every person is competent to express
an opinion on a question of . . . weight of
objects . . ."). Jurors can make the same
judgments based on adequate evidence. Because
evidence other than the certificates of
analysis established that the substances were
cocaine, and that the weight of the cocaine in
the minivan was over one hundred grams, the
error in admitting the certificates was
harmless beyond a reasonable doubt.

Connolly, 913 N.E.2d at 375-76.

Given this claim of error and this analysis as to both

drug type and weight, we cannot say that the SJC's conclusion was

an unreasonable application of Chapman. "[A]n 'unreasonable

application of' [Chapman] must be 'objectively unreasonable,' not

merely wrong; even 'clear error' will not suffice.'" White v.

Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade,

538 U.S. 63, 75-76 (2003)). The harmless error inquiry depends

significantly on the facts and is guided largely by the strength of

the parties' cases. See, e.g., United States v. Cabrera-Rivera,

583 F.3d 26, 36 (1st Cir. 2009); United States v. Carpenter, 403

F.3d 9, 12 (1st Cir. 2005).

Here, the government's case was supported by strong

evidence apart from the lab certificates. The testimony of highly

experienced police officers described the drugs in plain terms that

a jury could easily understand -- a "large ball, hard," that was

"bigger than a baseball" and roughly similar in appearance to a

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"baked potato." Even without the officers' descriptions, the

jurors were told the conversion between grams and ounces; jurors

know how much four ounces is and were free to accept that 100

grams, the statutory amount, was less than four ounces. They then

could judge for themselves. The jury also saw the hard ball of

crack cocaine, though it was more flaked and less solid than it had

been when originally found, in the jury room. To be sure, the lab

certificates were the most direct way of determining the weight of

the drugs, but the jury had obvious alternative methods available

for determining the drug weight.12 Melendez-Diaz itself left open

the possibility that, when other means of proof aside from the

improper certificate exist, the admission of the certificate may be

harmless error. 557 U.S. at 329 n.14.

We also note that Connolly's trial counsel never

requested that the chemist be produced to be cross-examined as to

the weight of the substance, suggesting he did not think such a

line of inquiry would be productive (or even that he thought it

12
These obvious other pathways distinguish this case from
those cases in which, on direct appeal, we have found non-harmless
Melendez-Diaz error. See United States v. Ramos-González, 664 F.3d
1, 6-7 (1st Cir. 2011) (holding Melendez-Diaz error non-harmless
where no other reliable evidence of drug identity existed because
no witnesses had testified as to "experience or intimate knowledge"
of drug investigations); Cabrera-Rivera, 583 F.3d at 36-37 (holding
Melendez-Diaz error non-harmless where only alternative evidence,
eye-witness testimony, was "less than compelling"); cf. United
States v. Turner, 709 F.3d 1187, 1195-96 (7th Cir. 2013) (holding
Melendez-Diaz error harmless where "there was considerable
evidence" to prove drug identity beyond the challenged testimony).

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might harm his client).13 That point is reinforced by his failure

to make such an argument to the SJC. Indeed, his trial strategy

was to challenge identity and the reliability of the police methods

used, not to contest the drug type or quantity. These facts are

relevant to our assessment of whether there is Brecht or Esparza

error. Cf. Neder v. United States, 527 U.S. 1, 16-17 (1999)

(holding that failure to instruct jury on one element of crime was

harmless beyond a reasonable doubt when overwhelming evidence for

that element existed and defendant had not challenged that evidence

or argued against that element at trial).

The Massachusetts courts have not been shy about finding

reversible error in cases involving Melendez-Diaz error where the

facts were different and jurors did not have such other means to

determine drug weight or identity. See, e.g., Commonwealth v.

Montoya, 984 N.E.2d 793, 800-01 (Mass. 2013) (finding non-harmless

error where no independent testimony about drug weight in relatable

terms was given and evidence of jury confusion about drug weights

existed); Commonwealth v. Rivera, 918 N.E.2d 871, 874 (Mass. App.

Ct. 2009) (finding non-harmless error where, in "borderline" case,

jury would be required to apply metric system without testimony

about metric unit conversions); Commonwealth v. Rodriguez, 913

13
In fact, under Massachusetts law at the time, a defendant
could subpoena a lab analyst to compel -- not just request -- live
testimony. See Melendez-Diaz, 557 U.S. at 326. Connolly chose not
to do so.

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N.E.2d 880, 887 (Mass. App. Ct. 2009) (finding non-harmless error

where jury's only method of determining weight without relying on

certificates would be "guesswork" on a "close question").

Particularly in light of these distinguishable cases, the facts of

this case show that the SJC's determination that the error was

harmless was not unreasonable, regardless of whether we might have

found the error harmless on direct review. Cf. White, 134 S. Ct.

at 1702 ("[A] state prisoner must show that the state court's

ruling on the claim being presented in federal court was so lacking

in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement." (quoting Harrington v. Richter, 131 S. Ct. 770, 786-

87 (2011)) (internal quotation mark omitted)).

Under Fry, we may stop here, as petitioner is not

entitled to habeas relief under the Esparza standard. Nonetheless,

we briefly explain why, even if the SJC's application of a

Chapman harmless error test was unreasonable, petitioner still

would not be entitled to habeas relief because he cannot show error

under the Brecht standard. We return to the nature of the claimed

prejudice from the error.

As noted, Connolly has not challenged the accuracy of the

lab certificates. Rather, his claim is limited to the deprivation

of his opportunity to cross-examine the lab analyst, and the

erroneous jury instruction on that topic. Without a meaningful

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challenge to the actual contents of the certificates, however,

Connolly cannot show substantial and injurious effects on the

jury's verdict. See Dominguez v. Duval, 527 F. App'x 38, 41 (1st

Cir. 2013) ("The argument for prejudice . . . addresses not the

contents of the report but the absence of the examining

pathologist . . . . But not only is the substance of the

pathologist's hypothetical testimony a matter of pure speculation,

the possibility that any such testimony would have swayed the jury

toward accepting [petitioner's] account is downright

unrealistic."). Connolly does not claim that, had he been able to

cross-examine the lab technician, the jury would have been more

likely to conclude that the ball of cocaine weighed under 100

grams.14 Without any such claim, he cannot show on habeas review

that the admission of the drug certificates had a "substantial and

injurious" effect on the jury's decision. And even if he made that

claim, he has not put forward any evidence indicating what would

have been revealed on cross-examination, leaving the support for

his claim a matter of "pure speculation." Id. That is

14
In fact, the jury was explicitly instructed that the lab
certificates were "evidence for you to consider" only "if you deem
it credible." We presume that, absent some indication to the
contrary, the jury followed the court's instructions. See Fryer v.
A.S.A.P. Fire & Safety Corp., 658 F.3d 85, 93 (1st Cir. 2011).
Thus, if the jury did in fact consider the certificates here, it
did so only after determining that they were credible. Connolly
does not argue in any way that a cross-examination of the lab
technician would have undermined the credibility of the
certificates.

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insufficient to show a "substantial and injurious" effect on the

verdict.

III.

We affirm.

- Concurring Opinion Follows -

-22-
 THOMPSON, Circuit Judge, concurring. This case aptly

illustrates the limited nature of our habeas review even in the

face of an admitted constitutional error. The myriad obstacles to

habeas review, especially the barricades thrown up and reinforced

by Supreme Court precedent, compel us to affirm Connolly's

conviction. Although I fully concur in the Court's judgment, I

write separately to flesh out why we are powerless to intervene.

Put simply, the Supreme Court has recently reiterated

that although some federal judges find the scope of habeas review

to be too limited, our authority to grant the writ is circumscribed

by 28 U.S.C. § 2254, a statute we are bound to obey. White v.

Woodall, 134 S. Ct. 1697, 1701-02 (2014). We may only grant habeas

relief where there has been a misapplication of "clearly

established Federal law" of sufficient severity. Thaler v. Haynes,

559 U.S. 43, 47 (2010) (per curiam) (internal quotation marks

omitted). Significantly, the relevant federal law must have been

clearly established as of the time of the state court decision,

meaning that subsequent developments are not relevant to habeas

review. Williams v. Taylor, 529 U.S. 362, 412 (2000).

Furthermore, for us to find a state court unreasonably applied

clearly established federal law, its application "must be

'objectively unreasonable,' not merely wrong; even 'clear error'

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will not suffice." White, 134 S. Ct. at 1702, (quoting Lockyer v.

Andrade, 538 U.S. 63, 75-76 (2003)).15

Everyone agrees a Melendez-Diaz error occurred at

Connolly's trial, which--as the majority opinion discusses--

requires us to engage in a harmless error analysis. The SJC

determined in Connolly's direct appeal that the jury could find

beyond a reasonable doubt that the drugs weighed over 100 grams

because the jury had the actual drugs with them as they

deliberated. Thus, the SJC concluded the Melendez-Diaz error was

harmless. See Commonwealth v. Connolly, 913 N.E.2d 356, 375-76

(Mass. 2009).

This limits the scope of our habeas review to determining

whether or not the SJC's finding of harmless error constituted an

unreasonable application of clearly established federal law. In

other words, Connolly needs to demonstrate that it has been clearly

established as a matter of federal law that a lay jury may not make

a finding of drug weight based on the opportunity to observe and

handle those drugs. This is where our review rushes headlong into

the habeas wall.

Timing is everything, and unfortunately time was not on

Connolly's side. The Massachusetts appellate courts appear to have

backed away from the SJC's holding in Connolly. Subsequent cases

15
These are but a few of the impediments to habeas relief.
There is no need to delve into any of the others here.

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have distinguished it and concluded a Melendez-Diaz error with

respect to drug certificates was not harmless beyond a reasonable

doubt. Just over a week after the SJC handed down Connolly, the

Appeals Court found that the erroneous admission of drug

certificates was not harmless where the alleged amount of drugs

exceeded the statutory threshold of 100 grams by 42.5 games, and

were spread across eight bags, one of which contained 106.5 grams

of drugs. See Commonwealth v. Rodriguez, 913 N.E.2d 880, 887

(Mass. App. Ct. 2009). The Appeals Court distinguished Connolly

and reasoned that in the absence of the drug certificates,

"determining the weights of the amounts at issue, particularly

whether they were over or under 100 grams, would involve too much

guesswork on too close a question in these circumstances." Id.

(citing Connolly, 913 N.E.2d at 376).16 The Appeals Court has gone

on to find non-harmless error in several opinions issued subsequent

to Connolly and Rodriguez. See Commonwealth v. Rivera, 913 N.E.2d

871, 874-75 (Mass. App. Ct. 2009) (admission of certificates not

harmless error where multiple bags of heroin and cocaine were all

within 100 grams of the statutory thresholds); Commonwealth v.

DePina, 917 N.E.2d 781, 789-90 (Mass. App. Ct. 2009) (finding non-

harmless error where alleged amount of drugs exceeded statutory

16
In citing to Connolly, the Appeals Court specifically noted
that case involved a "large, hard ball" of cocaine. Id. These
terms, however, are simply not probative of weight--think the
identically-sized aluminum versus steel ball.

-25-
threshold of 14 grams by 0.24 grams and was contained in 8 separate

bags).

The SJC itself distinguished Connolly in Commonwealth v.

Montoya, 984 N.E.2d 793 (Mass. 2013). Montoya contrasted the

evidence in Connolly, "a ball of solid cocaine that looked like a

baked potato [and] was bigger than a baseball," with the drugs in

that case, 39.74 grams (which exceeded the threshold by

approximately 11.8 grams) "packaged in twenty individual bags."

Id. at 800-01 (internal quotation marks omitted). The SJC went on

to find "[t]hat jurors had the opportunity to handle this evidence

in the jury room, without instruments or any objects of known

weight for comparison, does not render the admission of the drug

certificates harmless beyond a reasonable doubt," and cited the

Appeal's Courts decisions in Rodriguez, Rivera, and DePina with

approval. Id. at 801.

Thus, in Montoya it appears that the SJC considered the

fact that the drugs involved in that case were spread across

multiple packages to be the key distinguishing feature between its

decision there and its holding in Connolly. It is at least

debatable whether or not the SJC would come to the same result if

presented with Connolly's appeal today in light, especially in

light of its approval of Rodriguez, where one of the bags of drugs

weighed more than 100 grams.

-26-
 Nevertheless, the subsequent development and potential

uncertainty with respect to a matter of state law are simply

irrelevant to our habeas review in this instance. Connolly has not

directed this Court's attention to any Supreme Court precedent

clearly establishing that a lay jury may not--consistent with the

federal constitution--make the drug weight determination on its

own. My own research has failed to locate any Supreme Court

precedents in this area either.17 As the Supreme Court has reminded

us, the absence of Supreme Court holdings inevitably means that

there is no "clearly established federal law." Thus, Connolly's

habeas petition is doomed. Under the strict habeas standard, it

matters not whether the SJC might come to a different conclusion

today or whether we would have arrived at a different result had

this case reached us on direct appeal. In light of these

restrictions, we have no choice but to dismiss Connolly's habeas

petition.

17
We found admission of a drug certificate in violation of
Melendez-Diaz was not harmless error in United States v. Ramos-
Gonalez, 664 F.3d 1, 7 (1st Cir. 2011), a case which came to us on
direct review. Our decision there provides no comfort to Connolly,
however, as we must confine our inquiry to the Supreme Court's
holdings. See White, 134 S. Ct. at 1702 n.2.

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