Lee v. Corsini

United States Court of Appeals
For the First Circuit

No. 14-1070

ROBERT M. LEE,

Petitioner, Appellant,

v.

MICHAEL CORSINI,

Respondent, Appellee.

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

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Selya and Stahl,
Circuit Judges.

Mary T. Rogers, for appellant.
Anne M. Thomas, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.

January 26, 2015
 STAHL, Circuit Judge. A jury convicted Petitioner-

Appellant Robert M. Lee of murder in the first degree for the 1976

death of Angel Santos Davila. The Massachusetts Supreme Judicial

Court ("SJC") affirmed Lee's conviction on direct appeal. See

Commonwealth v. Lee, 383 Mass. 507 (1981). After several

unsuccessful motions for a new trial in state court, Lee filed a

petition for habeas corpus relief in federal district court,

arguing that his attorneys at both trial and postconviction

proceedings were constitutionally ineffective and that

prosecutorial misconduct tainted his case. The district court

denied habeas relief as well as Lee's motion for discovery, holding

that all of Lee's claims had been procedurally defaulted. After

careful consideration, we hold that the claim of ineffective

assistance of postconviction counsel has not been procedurally

defaulted, but that 28 U.S.C. § 2254(i) constitutes an independent

bar to habeas relief on this ground. We accordingly affirm.

I. Facts & Background

A. Underlying crime

We set forth the facts as recounted by the SJC in

affirming Lee's conviction on direct appeal, supplemented by other

consistent facts in the record. Yeboah-Sefah v. Ficco, 556 F.3d

53, 62 (1st Cir. 2009).

-2-
 Janet Brady hired Lee to kill her boyfriend Angel Santos

Davila, with whom she lived.1 Brady testified at trial that her

relationship with Davila began deteriorating in the spring of 1976,

and that, by the summer, she had resolved to "find someone to pay

to do him harm." She contacted Robert DeCot, the manager of a

local bar, who put her in touch with Lee. Lee was known to DeCot

as a patron of his bar; Brady, too, was already acquainted with

Lee, as he was a customer at the Fort Devens credit union where she

worked as a loan officer. Over the days leading up to Davila's

shooting, Brady and Lee met several times at local bars and in the

back office of the credit union. During these meetings, they made

plans to "take care of" Davila and discussed payment. Lee demanded

$500 upfront, plus an additional $2000; Brady complied.

Davila was shot at approximately 8:45 p.m. on Thursday,

August 26, 1976. People attending a pool party at the house next

door to Brady and Davila's heard shots ring out, as well as the

sound of a car with a noisy muffler driving away. An "old car,

making a lot of noise" and "reddish" in color was seen driving away

very fast. Lee's wife, who was out of town at the time of the

shooting, owned a red Toyota, which Lee had been seen driving that

week.

1
Brady was charged with conspiracy and accessory before the
fact to murder. Before Lee's trial, she pleaded guilty to
conspiracy, and the accessory charge was dismissed. She served
seven years in prison, and died in 2001.

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 Police recovered one yellow Sears shotgun shell,

determined to have come from a 20-gauge shotgun, outside Davila's

house, as well as No. 8 shot lead fragments from the stairway

inside the house; similar lead fragments also were extracted from

Davila's body during the autopsy. There was testimony at trial

that although Lee had loaned his shotgun to a friend, he picked it

up sometime between August 23 and 26. When police arrested Lee on

August 29, they found in his closet a 20-gauge Remington shotgun

and five yellow Sears 20-gauge shotgun shells filled with No. 8

shot.

Lee presented an alibi defense:

Lee offered his own and corroborating
testimony that he was at a bar some distance
away from the victim's home from eight o'clock
until well after nine on the evening in
question. He sought to show that he was not
driving his wife's red Toyota but a jeep that
night, that the Toyota was not old or noisy,
and that he did not recover his shotgun until
Friday, August 27, the day after the shooting.
Lee's version of his contact with Janet Brady
was that she asked him to collect money from a
Mr. "Warner." He claimed Brady concocted the
story of the conspiracy with Lee in order to
protect her son or someone else who actually
shot Davilla [sic].

Lee, 383 Mass. at 509. After a six-day trial in May 1977, the jury

rejected this defense and found Lee guilty of murder in the first

degree.

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B. Direct appeal

On appeal, Lee challenged the denial of his motion to

suppress and motion for a directed verdict, as well as the jury

instructions on malice and the trial judge's failure to instruct on

manslaughter. The SJC affirmed Lee's conviction in 1981, finding

no merit to any of his arguments.

C. Postconviction proceedings

Postconviction proceedings have extended over four

decades since Lee's conviction was affirmed on direct appeal. Lee

filed his first motion for a new trial, through counsel, in July

1983. After that attorney was disbarred, another lawyer took over

his case and filed a substitute motion for a new trial in August

1989. That motion raised claims of ineffective assistance of

counsel, based on a failure to investigate Lee's purported lack of

criminal responsibility as a result of mental impairment sustained

in the Vietnam War; ineffectiveness of counsel in cross-examining

witnesses and failing to request a jury instruction on

misidentification; and error in the jury instructions on reasonable

doubt and malice. The motion was denied without a hearing in

February 1990.

Lee subsequently filed a pro se motion to reconsider that

decision, which also added several claims centering on his lack of

criminal responsibility and incompetence to stand trial, and

ineffective assistance of counsel for failure to raise those

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claims. This motion, too, was denied without a hearing. Lee

sought leave to appeal, and a hearing was held before a single

justice of the SJC in November 1992. The single justice, acting as

gatekeeper, declined to let the appeal proceed to the full court.2

Lee filed another pro se motion for a new trial in

September 1995, also requesting that counsel be assigned to him.

Although his motion for the appointment of counsel was allowed,

none was assigned and, for reasons that are unclear from the

record, no further action was taken on Lee's case for over seven

years. Mary Rogers, Lee's current attorney, was appointed as new

counsel in February 2003; in September 2004, she filed a new motion

for a new trial to substitute for Lee's pro se filing.

The 2004 motion for a new trial took a new tack. Instead

of focusing on Lee's alleged lack of criminal responsibility and

claimed error in jury instructions, this motion asserted numerous

instances of ineffective assistance of counsel — at both trial and

postconviction stages — as well as prosecutorial misconduct as

2
As will be discussed below, in first-degree murder cases,
Massachusetts allows for the filing of successive motions for a new
trial following the affirmance of the defendant's conviction on
direct appeal. Mass. Gen. Laws ch. 278, § 33E. However, an appeal
from a denial of a motion for a new trial may only proceed to the
full Supreme Judicial Court if a single justice of the SJC, acting
as gatekeeper, determines that the appeal "presents a new and
substantial question." Id.; Napolitano v. Att'y Gen., 432 Mass.
240, 241 & n.2 (2000).

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grounds for a new trial.3 In connection with this motion, Lee also

3
As the district court summarized, the 2004 motion for a new
trial put forward many grounds of ineffective assistance of trial
counsel, including that:

(1) he failed to call two main suspects — Brady's eldest
son and that son's friend — as witnesses and instead
allowed admission of their written statements to police
to substitute for live testimony;
(2) he failed to argue that Brady's ex-husband may have
been the murderer, despite statements to the police by
the victim and Brady that suggested the ex-husband might
have shot the victim;
(3) he failed to cross-examine Brady about her change of
plea on the eve of trial and her prior inconsistent
statements to the police;
(4) he had an undisclosed conflict of interest, having
represented Brady in a divorce proceeding several years
prior to the trial;
(5) he inadequately prepared, investigated, and presented
evidence, including a complete failure to have any
witnesses ready at the beginning of trial and his
misstating of facts during his closing argument;
(6) he was an alcoholic who drank during trial and was
ultimately censured by the bar and is no longer
practicing law;
(7) he failed to hire a firearms expert at the outset of
trial, and the one he hired mid-trial was incompetent;
(8) he required assistance from the trial judge in
framing foundation questions regarding Lee's character
for truthfulness; and
(9) he allowed Lee to be seated in the dock during trial.
In addition, Lee advanced claims of prosecutorial
misconduct, alleging that: (1) the police failed to
investigate Lee's alibi, Brady's alibi, or those of
Brady's eldest son and his friends; (2) the police
threatened a witness; (3) the prosecutor failed to
disclose exculpatory evidence; and (4) the Commonwealth's
firearms expert failed to preserve, document, and measure
evidence. Finally, Lee claimed that his post-conviction
attorneys were ineffective for failing to raise these
claims.

Lee v. Corsini, No. 07-11316-MLW, 2013 WL 6865585, at *4-5 (D.
Mass. Dec. 24, 2013) (citations omitted).

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filed motions for discovery, in attempt to obtain documents such as

police reports, ballistics records, grand jury minutes, and the

victim's statements to police, which state prosecutors and law

enforcement officers purportedly had not provided. The court

denied the motion for new trial in September 2005 without

explicitly addressing the motions for discovery. Lee sought leave

to appeal the denial of the motion before a single justice of the

SJC. Finding that the appeal did not raise "a new and substantial

question," Mass. Gen. Laws ch. 278, § 33E, the single justice, in

July 2006, declined to let the appeal proceed to the full court.

Lee, through current counsel, filed a petition for a writ

of habeas corpus in the district court in July 2007, raising much

the same claims as the 2004 motion presented. Lee also filed

several ancillary motions, including a motion for discovery, motion

for an evidentiary hearing, and motion for criminal records of

witnesses. The district court held a non-evidentiary hearing in

March 2009, and subsequently denied Lee's motions. For reasons

that are unclear from the record, the district court's final

memorandum and order denying habeas relief did not issue until

December 2013, nearly six-and-a-half years after Lee filed the

petition.

Applying our decision in Costa v. Hall, 673 F.3d 16,

22–25 (1st Cir. 2012), the district court held that all of Lee's

claims had been procedurally defaulted, since, as the single

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justice of the SJC had determined, they failed to overcome the "new

and substantial question" hurdle of Mass. Gen. Laws ch. 278, § 33E.

See Lee v. Corsini, No. 07-11316-MLW, 2013 WL 6865585, at *11 (D.

Mass. Dec. 24, 2013). As "denial of review under § 33E [due to

procedural waiver] is an independent and adequate state ground that

bars federal habeas review," Simpson v. Matesanz, 175 F.3d 200, 206

(1st Cir. 1999), the district court declined to reach the merits of

Lee's claims, finding neither cause for nor prejudice from the

procedural default, nor any fundamental miscarriage of justice to

excuse the default.

Thus, after a long and tortuous process involving

sometimes inordinate delay, this appeal has finally reached us,

over thirty-eight years after the shooting of August 26, 1976.

II. Analysis

We review a district court's denial of a habeas corpus

petition de novo. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006).

Because, as a general matter, "[a] federal habeas court

will not review a claim rejected by a state court if the decision

of [the state] court rests on a state law ground that is

independent of the federal question and adequate to support the

judgment," Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (second

alteration in original) (internal quotation marks omitted), we look

to the "last reasoned opinion" of the state court to discern the

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grounds for its decision. Ylst v. Nunnemaker, 501 U.S. 797, 803

(1991).

The last reasoned opinion here is the 2006 decision of

the single justice of the SJC, who ruled that Lee's appeal from the

denial of his 2004 motion for a new trial did not present "a new

and substantial question which ought to be determined by the full

court." Mass. Gen. Laws ch. 278, § 33E. Before the single justice

were three types of claims: ineffective assistance of trial

counsel, prosecutorial misconduct, and ineffective assistance of

postconviction counsel (namely, the attorney who handled his first

motion for a new trial in 1989). The single justice held that the

first two claims were not new, since they could have been raised in

an earlier proceeding; he held that the claim of ineffective

assistance of postconviction counsel, though "arguably" new, was

nevertheless not substantial.4 The parties agree that the first

two claims have been procedurally defaulted, but disagree over

whether the ineffective-assistance-of-postconviction-counsel claim

has been defaulted, and whether there is reason to excuse any

default. We discuss these issues in more detail below.

4
The single justice referred to this claim as "ineffective
assistance of appellate counsel who represented [Lee] on his first
motion for new trial." For the sake of clarity, we refer to this
claim as one of ineffective assistance of postconviction counsel,
to distinguish the attorney in question from the one who handled
Lee's direct appeal.

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A. Whether claim of ineffective assistance of postconviction
counsel has been procedurally defaulted under Mass. Gen.
Laws ch. 278, § 33E

Federal habeas review of the merits of a claim is

precluded if there is an independent and adequate state law ground

supporting the state court's decision. Walker, 131 S. Ct. at 1127.

This principle "is grounded in concerns of comity and federalism."

Costa, 673 F.3d at 23 (quoting Coleman v. Thompson, 501 U.S. 722,

730 (1991)). A state procedural rule is adequate to preclude

federal merits review "so long as the state regularly follows the

rule and has not waived it by relying on some other ground."

Jewett v. Brady, 634 F.3d 67, 76 (1st Cir. 2011) (citing Horton v.

Allen, 370 F.3d 75, 80–81 (1st Cir. 2004)). If the state court's

decision indeed rests on some other, nonprocedural ground, federal

merits review will be available only if that ground is federal in

nature, or "interwoven" with federal law. Brewer v. Marshall, 119

F.3d 993, 999 (1st Cir. 1997) (quoting Coleman, 501 U.S. at 733).

We have previously addressed the "particular waiver rule"

of Mass. Gen. Laws ch. 278, § 33E, the statute specific to appeals

of first-degree murder convictions, upon which the single justice

relied in his decision. Mendes v. Brady, 656 F.3d 126, 129 (1st

Cir. 2011). According to the scheme set forth in that statute, a

defendant who has been convicted of first-degree murder is afforded

plenary review on direct appeal to the SJC. § 33E. Following such

review, a defendant is free to file any number of motions for a new

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trial in state superior court. See id. He is only entitled to

appellate review of the denial of such a motion, however, if a

single justice of the SJC determines that the appeal presents a

question that is both "new" and "substantial," fit for resolution

by the full court, id., or if it nevertheless raises the specter of

"a substantial risk of a miscarriage of justice," Commonwealth v.

Drew, 447 Mass. 635, 638 (2006).

"A defendant's claim might be 'new,' for example, if the

applicable law was not sufficiently developed at the time of trial

or direct appeal, such that the claim could not reasonably have

been raised in those proceedings; or if evidence not previously

available comes to light." Commonwealth v. Gunter, 459 Mass. 480,

488 (2011) (citation omitted). By contrast,

[a]n issue is not 'new' within the
meaning of [§ 33E] where either it has already
been addressed, or where it could have been
addressed had the defendant properly raised it
at trial or on direct review. The statute
requires that the defendant present all his
claims of error at the earliest possible time,
and failure to do so precludes relief on all
grounds generally known and available at the
time of trial or appeal.

Commonwealth v. Ambers, 397 Mass. 705, 707 (1986) (internal

quotation marks omitted). An issue is "substantial" if it is

"meritorious . . . in the sense of being worthy of consideration by

an appellate court." Gunter, 459 Mass. at 487. A decision by the

single justice that a § 33E appeal neither presents a new and

substantial question nor raises a substantial risk of a miscarriage

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of justice, is "final and unreviewable." See Commonwealth v.

Monteiro, 451 Mass. 1009, 1009 (2008).

The single justice's determination that an issue is not

"new" within the meaning of § 33E is tantamount to a finding of

procedural default, "the classic example of an independent and

adequate state ground." Simpson, 175 F.3d at 207. But the single

justice's decision need not rest on grounds of default; she may

instead find that the issue is in fact new but nevertheless

insubstantial, based on an application of the substantive legal

standard. "[A] determination that the issues are 'new' and simply

not 'substantial' resolves the claims on the merits and does not

signal procedural default." Jewett, 634 F.3d at 76 (citing Phoenix

v. Matesanz, 189 F.3d 20, 25–27 (1st Cir. 1999)); see also Simpson,

175 F.3d at 207 n.4 ("Suppose that the denial by the [single

justice] of the § 33E petition rests . . . on a finding that while

petitioner's claim is new, it is, nonetheless, not substantial — a

conclusion reached by analysis under and resting on federal law.

It could be cogently argued that such a denial does not rest purely

on state law and so is not independent. That hypothetical involves

clear reliance on federal law and is vastly different from an order

denying § 33E review . . . [where] there had been procedural

waiver." (citations omitted)).

This, at least on its face, is straightforward enough —

a finding that the issue is not new amounts to procedural default,

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whereas a finding that the issue is new but not substantial does

not. However, both the district court and the parties have

identified some tension in our prior cases addressing single

justices' application of the new-and-substantial rule. We take

this opportunity to dispel any uncertainty.

The source of the confusion is a passage in our recent

decision in Costa, which, when read in isolation, appears to

endorse the proposition that a single justice's resolution of the

substantiality prong against the petitioner by itself signals

procedural default. In that case, the substantive issue underlying

the ineffective-assistance-of-appellate-counsel claim raised on

appeal to the single justice (specifically, the inconsistent

testimony of a particular witness) had already been reviewed and

rejected twice by the SJC, and was therefore neither new nor

substantial. See Costa, 673 F.3d at 24 n.4. We rejected Costa's

entreaty for merits review, reasoning:

The Single Justice's finding that
neither of Costa's ineffective assistance of
counsel claims presented "new and substantial
questions" within the meaning of § 33E review
constitutes an independent and adequate state
ground. The Single Justice observed that both
claims merely reiterated the same substantive
challenge to [a trial witness's] credibility
already decided against Costa on the merits.
Although Costa argues that his ineffectiveness
of appellate counsel claim necessarily
presents a "new" question in that it could not
have been raised until after his direct
appeal, the Single Justice also found that
this claim was not substantial, rendering
Costa's "newness" argument, were it even

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 plausible, irrelevant. The Single Justice's
finding of a lack of substantiality
constitutes an independent and adequate state
ground in and of itself and acts to bar
federal review. Mendes, 656 F.3d at 128.

Id. at 24 (emphasis added).

As the district court here noted, the underlined text in

particular is difficult to reconcile with our prior holdings,

discussed above, that a determination of an issue's

insubstantiality preserves federal merits review, provided that the

issue is also new. See, e.g., Jewett, 634 F.3d at 76. Lee argues

that those prior holdings remain good law.

We agree. Costa did not impose a new categorical bar to

federal review of habeas petitions. Indeed, when read in

conjunction with a footnote in the same case, it is clear that the

Costa decision as a whole reaffirms the general principle that a

single justice's determination that an issue is new but not

substantial does not preclude federal habeas review on the merits.

As we observed in that footnote:

This [the principle that a single
justice's explanation of her views as to why
claims are not new and not substantial does
not convert the decision into one on the
merits] accords with our prior case law. In
Jewett v. Brady, 634 F.3d 67 (1st Cir. 2011),
we held that where, unlike here, the Single
Justice finds that a claim is "new" within the
meaning of § 33E, a federal habeas court must
accept this as a binding merits determination
of newness and may not look behind the
reasoning. Id. at 76 ("[A] determination that
the issues are 'new' and simply not
'substantial' resolves the claims on the

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 merits and does not signal procedural
default."). However, where, as here, the
Single Justice finds a claim is neither new
nor substantial under § 33E, this is a
procedural bar to federal habeas review. Id.

Costa, 673 F.3d at 24 n.5.

Thus, it is not the case that a single justice's finding

of a lack of substantiality will always bar merits review. Rather,

as per the facts of Costa, a finding of a lack of substantiality

precludes review only when it is accompanied by the conclusion that

the issue is also not new. In essence, it is only the failure to

satisfy the "new" prong of the § 33E rule that signals procedural

default.

Here, the single justice determined that Lee's claims

regarding ineffective assistance of trial counsel and prosecutorial

misconduct were not new because they could have been raised on

direct appeal or in his first motion for a new trial. As the

parties agree, such a finding amounts to a procedural default of

these claims. See, e.g., Yeboah-Sefah, 556 F.3d at 74–75. But the

single justice did not make a comparable finding regarding Lee's

claim of ineffective assistance of postconviction counsel.

Instead, he observed, "Arguably, this is [Lee's] first opportunity

to raise the issue of ineffective assistance of [postconviction]

counsel who represented him on his first motion for new trial.

However, even assuming that this claim could be new, it is not

substantial." This conclusion was supported by a "fairly detailed"

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analysis of the merits of the ineffective-assistance-of-

postconviction-counsel claim — several pages in length — under the

substantive legal standard of Commonwealth v. Saferian, 366 Mass.

89, 96 (1974). Phoenix, 189 F.3d at 25 n.2.

The absence of any definite finding as to newness

distinguishes this case from others such as Mendes, 656 F.3d at

130, and Yeboah-Sefah, 556 F.3d at 75, where we have held that the

adequacy and independence of state law grounds are not undercut

when the single justice finds procedural default but also briefly

reviews the merits of the claim to ensure that there is no

substantial risk of a miscarriage of justice. Those cases make

plain that procedurally defaulted claims cannot be resurrected by

a single justice's holistic review of the merits in the context of

a miscarriage-of-justice analysis. Here, by contrast, the single

justice avoided making any determination as to procedural default

in connection with the claim of ineffective assistance of

postconviction counsel, instead resting his decision on the

substance of that claim, which in his judgment was weak, since Lee

had not demonstrated that postconviction counsel's performance was

constitutionally deficient.

"Our inquiry does not, of course, end here. Even holding

that the [single] justice's decision rested not on procedural

default but on the merits of [the petitioner's] ineffective

assistance claim, we may not entertain habeas review if the merits

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determination was grounded in state law." Phoenix, 189 F.3d at 26.

Although the single justice did not cite federal constitutional

provisions or case law in his decision, Lee pressed arguments

regarding the ineffectiveness of postconviction counsel under both

the federal and state Constitutions. Because the state standard

under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), is the

"functional equivalent" of the federal standard of Strickland v.

Washington, Ouber v. Guarino, 293 F.3d 19, 32 (1st Cir. 2002), the

single justice "necessarily rejected" Lee's assertions under the

federal Constitution as well as state, Phoenix, 189 F.3d at 27.

Under the circumstances, then, the single justice's decision — as

to the issue of ineffective assistance of postconviction counsel

only — "fairly appear[s] to rest primarily on the resolution of

[Lee's federal] claim[], or to be interwoven with th[at] claim[],

and [does] not clearly and expressly rely on an independent and

adequate state ground."5 Phoenix, 189 F.3d at 26 (quoting Coleman,

5
Respondent argues that the single justice's failure to
"indicate, specifically or otherwise, that his decision was based
on anything other than waiver" distinguishes this case from Phoenix
v. Matesanz, where the single justice "specifically indicated that
he was not dismissing [the] ineffective assistance claim on the
ground of lack of novelty or on some other theory compatible with
waiver." 189 F.3d 20, 26 (1st Cir. 1999). But a state court need
not explicitly disavow any federal law ground for its decision in
order for habeas review to be appropriate. Rather, as discussed,
habeas review is proper where the state court decision "fairly
appear[s]" to rest on the merits of a federal claim. Coleman v.
Thompson, 501 U.S. 722, 735 (1991). Indeed, the only fair reading
of the single justice's decision here is that it rested on the
merits of the federal claim of ineffective assistance of
postconviction counsel, given that he declined to resolve that

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501 U.S. at 735). As a result, the ineffective assistance of

postconviction counsel claim has not been procedurally defaulted.

There is, however, an independent bar to habeas relief on

this ground. 28 U.S.C. § 2254(i) provides that "[t]he

ineffectiveness or incompetence of counsel during Federal or State

collateral post-conviction proceedings shall not be a ground for

relief in a proceeding arising under section 2254," as this appeal

does.6 See also Martel v. Clair, 132 S. Ct. 1276, 1287 n.3 (2012)

("[Section] 2254(i) prohibits a court from granting substantive

habeas relief on the basis of a lawyer's ineffectiveness in

post-conviction proceedings . . . ."). Therefore, although Lee's

claim of ineffective assistance of postconviction counsel has not

been procedurally defaulted, the district court was, in any event,

precluded from granting relief on that ground.

claim on grounds of procedural default.
6
The claim of ineffective assistance of postconviction
counsel at issue here arises out of a motion for a new trial filed
after Lee's conviction became final on direct review; the motion
was not one filed pursuant to Mass. R. App. 19(d)(1), discussed
below, prior to plenary review by the SJC. As such, the proceeding
at issue is properly characterized as collateral in nature. See
Commonwealth v. Bray, 407 Mass. 296, 298 (1990) (citing
Commonwealth v. Breese, 389 Mass. 540 (1983))(motion for new trial
after final judgment constitutes collateral proceeding).

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B. Whether procedural default of claims of ineffective
assistance of trial counsel and prosecutorial misconduct
may be excused

We next consider whether the remaining claims of

ineffective assistance of trial counsel and prosecutorial

misconduct, though procedurally defaulted, may nevertheless be

reviewed on the merits.

A claim that has been procedurally defaulted may

nevertheless be reviewed by a federal habeas court if the

petitioner demonstrates cause for the default and prejudice

resulting therefrom, or can show "that failure to consider the

federal claim will result in a fundamental miscarriage of justice."

Harris v. Reed, 489 U.S. 255, 262 (1989) (internal quotation marks

omitted). Lee presses two ostensible causes for default:

ineffective assistance of postconviction counsel, and various state

agencies' failure to turn over documents to his current counsel.

We consider each in turn.

Lee first argues that the attorney who handled his first

motion for a new trial in 1989 was constitutionally ineffective in

failing to present the trial-ineffectiveness claims raised by his

current counsel in the latest motion for a new trial; this

postconviction ineffectiveness, Lee maintains, constitutes cause

for defaulting the trial claims.

"To establish cause, there must be 'some objective factor

external to the defense' which 'impeded counsel's efforts to comply

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with the State's procedural rule.'" Lynch, 438 F.3d at 46 (quoting

Murray v. Carrier, 477 U.S. 478, 488 (1986)). Although

constitutionally ineffective assistance of counsel, at trial or on

direct appeal, in failing to preserve a claim for review may

constitute cause for default, ineffective assistance of counsel in

postconviction proceedings typically will not. Coleman, 501 U.S.

at 752. That is because, as the Supreme Court explained in

Coleman, there can be no constitutionally ineffective assistance of

counsel in a proceeding in which there is no constitutional right

to an attorney. Id. "Where a petitioner defaults a claim as a

result of the denial of the right to effective assistance of

counsel, the State, which is responsible for the denial as a

constitutional matter, must bear the cost of any resulting default

and the harm to state interests that federal habeas review

entails." Id. at 754. But "[a] different allocation of costs is

appropriate in those circumstances where the State has no

responsibility to ensure that the petitioner was represented by

competent counsel." Id.

Lee focuses on two recent Supreme Court cases that set

forth, as narrow exceptions to the Coleman rule, specific sets of

circumstances in which ineffective assistance of counsel in

postconviction proceedings will indeed be imputed to the state,

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thereby constituting cause for procedural default.7 In Martinez v.

Ryan, 132 S. Ct. 1309, 1315 (2012), the Court addressed whether

ineffective assistance of counsel during collateral postconviction

proceedings could constitute cause for defaulting a claim of

ineffective assistance of trial counsel, in the context of a state

scheme that prohibited such claims from being raised on direct

review. The Court observed that "[b]y deliberately choosing to

move trial-ineffectiveness claims outside of the direct-appeal

process, where counsel is constitutionally guaranteed, the State

significantly diminishes prisoners' ability to file such claims."

Martinez, 132 S. Ct. at 1318. In order to vindicate a prisoner's

right to present such claims, the Court held that ineffective

assistance of counsel in postconviction proceedings can constitute

7
Respondent argues that Lee has waived his arguments
concerning the applicability of these cases, Trevino v. Thaler, 133
S. Ct. 1911 (2013), and Martinez v. Ryan, 132 S. Ct. 1309 (2012),
by not raising them before the district court. Lee filed his
habeas petition in July 2007 and the district court rendered its
decision in December 2013; Trevino and Martinez were decided in May
2013 and March 2012, respectively. It is far from clear that a
litigant waives an argument premised on new law that postdates the
initial filing by nearly six years, where the district court has
failed to take action on the petition in the interim. Cf. Herbert
v. Dickhaut, 695 F.3d 105, 109 (1st Cir. 2012) ("There can be no
waiver where a party lacked an opportunity to raise an argument.").
However, we decline to reach the issue of waiver because, as
discussed infra, the rules announced in Trevino, 133 S. Ct. at
1921, and Martinez, 132 S. Ct. at 1318–19, do not apply to Lee's
case in any event. Cf. Yeboah-Sefah v. Ficco, 556 F.3d 53, 68 n.6
(2009) ("[B]ecause we easily reject petitioner's claim on the
merits, we need not resolve this dispute [regarding waiver].").

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cause for procedural default, provided certain circumstances are

present:

(1) the claim of "ineffective assistance of
trial counsel" [is] a "substantial" claim; (2)
the "cause" consist[s] of there being "no
counsel" or only "ineffective" counsel during
the state collateral review proceeding; (3)
the state collateral review proceeding [is]
the "initial" review proceeding in respect to
the "ineffective-assistance-of-trial-counsel
claim"; and (4) state law requires that an
"ineffective assistance of trial counsel
[claim] . . . be raised in an initial-review
collateral proceeding."

Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (final alteration

in original) (quoting Martinez, 132 S. Ct. at 1318–19).

A year later, in the case of Trevino v. Thaler, the Court

extended its holding in Martinez to include not just scenarios

where state law literally bars claims of ineffective assistance of

trial counsel from being raised on direct review, but also those

where, "as a matter of [the procedural system's] structure, design,

and operation[,] [it] does not offer most defendants a meaningful

opportunity to present [such claims] on direct appeal." 133 S. Ct.

at 1921. According to the Texas procedural framework at issue in

that case, the ability to raise a claim of ineffective assistance

of trial counsel on direct appeal existed as a hypothetical matter,

but in practice was so heavily circumscribed as to be rendered

effectively illusory. Although the Texas Court of Criminal Appeals

had recognized that ineffective assistance of trial counsel claims

typically must be substantiated by information in the trial record,

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convicted defendants only have thirty days after sentencing to file

a motion for a new trial in order to develop the record on appeal;

in addition, the trial court must dispose of such motions within

seventy-five days of sentencing. Id. at 1918 (citing Tex. R. App.

P. 21.4, 21.8(a), (c)). Critically, however, the trial transcript

need only be produced within 120 days of sentencing, and this

deadline may be extended. As a result, motions for a new trial

often must be made without the assistance of the trial transcript,

as was the case for Trevino. Id. at 1918–19 (citing Tex. R. App.

P. 35.2(b), 35.3(c)). "Thus, as the Court of Criminal Appeals has

concluded, in Texas 'a writ of habeas corpus' issued in state

collateral proceedings ordinarily 'is essential to gathering the

facts necessary to . . . evaluate . . .

[ineffective-assistance-of-trial-counsel] claims,'" which, in

practice, cannot meaningfully be presented on direct appeal. Id.

(alterations in original) (quoting Ex parte Torres, 943 S.W.2d 469,

475 (Tex. Crim. App. 1997) (en banc)).

Taken together, the Martinez/Trevino exception applies

only in jurisdictions that effectively prohibit prisoners from

raising ineffective assistance of trial counsel claims on direct

appeal, either by letter or operation of the law. But, as

Respondent persuasively argues, that is not the state of the law in

Massachusetts. Although it is true, as Lee observes, that "the

preferred method for raising a claim of ineffective assistance of

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counsel is through a motion for a new trial," Commonwealth v.

Zinser, 446 Mass. 807, 810 (2006), the rules governing appeals in

first-degree murder cases preserve prisoners' ability to raise such

claims on direct review via consolidation, and impose no

unrealistic time limits for filing motions for a new trial, or any

time limits for disposing of such motions, as Texas does. See

Mass. R. App. P. 19(d)(1) (appellant in first-degree murder case

shall, within 120 days of appeal being docketed in SJC, serve and

file either appellate brief or motion for new trial; time for

filing may be enlarged upon showing of good cause); Mass. R. App.

P. 19(d)(2) ("If a motion for a new trial is remanded to the

Superior Court, the direct appeal of the conviction shall be stayed

pending decision on the motion for new trial. . . . An appeal by

the defendant from the denial of a motion for new trial shall be

consolidated with the direct appeal.").8 Indeed, direct appeals in

capital cases are frequently consolidated with appeals from denials

of motions for a new trial. See, e.g., Commonwealth v. Martin, 467

Mass. 291, 293 (2014) (defendant's direct appeal consolidated with

denial of motion for new trial); Commonwealth v. Scott, 428 Mass.

362, 364 (1998) (same); Commonwealth v. Ellison, 376 Mass. 1, 2–3

(1978) (same).

Whereas the Texas system makes it "virtually impossible"

to develop a record substantiating an ineffective-assistance claim

8
This rule has been in effect in Massachusetts since 1973.

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in time for consideration on direct appeal, Trevino, 133 S. Ct. at

1915 (quoting Robinson v. State, 16 S.W.3d 808, 810–11 (Tex. Crim.

App. 2000)), Massachusetts does just the opposite: it encourages

the development of such a record via motion for a new trial by

allowing appellants 120 days from the docketing of their appeals to

do so, which they may choose to do instead of proceeding with

direct review, see Mass. R. App. 19(d)(1). Furthermore, appeals

from denials of motions for a new trial that have been consolidated

with direct appeals are afforded plenary review pursuant to § 33E,

whereas motions for a new trial filed after the SJC has affirmed a

conviction on direct appeal are subject to the far narrower "new

and substantial" review by the single justice. See § 33E. Thus,

because Massachusetts does indeed "afford[] meaningful review of a

claim of ineffective assistance of trial counsel," Trevino, 133 S.

Ct. at 1919, Lee cannot claim the benefit of the Martinez/Trevino

exception to the Coleman rule, and any ineffective assistance by

the attorney who handled his first motion for a new trial does not

constitute cause for procedural default.

We turn next to Lee's second claimed cause for default.

Lee argues that "[s]tate government officials have prevented [him]

from fully developing his claims of ineffective assistance of

counsel and prosecutorial misconduct by concealing evidence." Lee

maintains that this governmental intransigence constitutes "some

interference by officials ma[king] compliance [with a state

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procedural rule] impracticable," which suffices to show cause for

procedural default. Murray, 477 U.S. at 488 (citation omitted).

The substance of Lee's argument is that officials in the district

attorney's office and in various police departments have "reneged"

on supposed commitments to provide Lee's current counsel with

copies of relevant police reports, grand jury minutes, witness

statements, and ballistics reports.9

The problem with this contention is that, if true, all it

shows is that current counsel is without certain documents; it does

not account for whether or not those documents were in the

possession of the postconviction counsel who committed procedural

default by not raising certain claims in the first motion for a new

trial. Even assuming that that attorney indeed did not have the

documents, such a lack provides only an attenuated justification

for defaulting ineffective assistance claims.10 Lee makes no

9
We are not in a position to express an opinion regarding the
veracity of Lee's claims that the district attorney's office and
various police departments — not parties to this action — have not
cooperated in turning over requested documents. We note, however,
that Respondent substantially complied with Rule 5 of the Rules
Governing Section 2254 Cases by filing state court docket sheets,
court documents, and prior decisions with his supplemental answer.
10
In a different section of his brief, Lee argues that the
government withheld certain documents from trial counsel, in
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Lee
forwards this contention while arguing the merits of his
prosecutorial misconduct claim; he makes no assertion that a Brady
violation constituted cause for procedural default. See Pratt v.
United States, 129 F.3d 54, 62 (1st Cir. 1997) ("[A]rguments not
advanced and developed in an appellant's brief are deemed
waived."). Nor could he make such an assertion, where the

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attempt to explain, for example, how not having access to documents

such as grand jury minutes prevented the postconviction counsel

from raising a claim that trial counsel was ineffective in failing

to call a competent firearms expert. See McCleskey v. Zant, 499

U.S. 467, 497 (1991) ("For cause to exist, the . . . government

interference . . . must have prevented petitioner from raising the

claim."). Consequently, Lee cannot establish cause for procedural

default. In light of this conclusion, we do not reach the question

whether Lee suffered prejudice as a result of the default.

We can still excuse procedural default upon a showing

that a failure to review the claims on the merits would result in

a "fundamental miscarriage of justice." Harris, 489 U.S. at 262

(internal quotation marks omitted). "This is a narrow exception to

the cause-and-prejudice imperative, seldom to be used, and

explicitly tied to a showing of actual innocence." Burks v.

Dubois, 55 F.3d 712, 717 (1st Cir. 1995) (citing Schlup v. Delo,

513 U.S. 298, 321 (1995)). In rehearsing the merits of his claims,

foundation of the alleged Brady violation — that "[n]o defense
attorney has ever seen police reports of the interviews with the
victim" — is premised simply on one unhelpful page of trial
transcript. That page covers a discussion among the defense
attorney, prosecutor, and trial judge concerning pretrial motions,
in which the latter two discussed the victim's statement while in
the hospital that he "wouldn't be surprised if Woody [Janet Brady's
ex-husband] did it." Although defense counsel told the court that
he "hadn't heard about Woody before," he did so on the heels of the
court allowing Lee's motion to be furnished with all statements
made by the victim. There is no indication in the record that the
government failed to comply with this order in advance of trial.

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Lee vigorously argues, among other things, that trial counsel

failed to put on significant evidence of a third-party culprit;

however, Lee has not endeavored to make out a showing of a

fundamental miscarriage of justice such as would excuse procedural

default. And while Lee's arguments about ineffective assistance of

trial counsel invite speculation about what might have happened had

his attorney called certain witnesses or pursued different lines of

cross-examination, they are just that — speculative. He has not

made a showing of actual innocence supported by "new reliable

evidence — whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence —

that was not presented at trial." Schlup, 513 U.S. at 324; cf.

Janosky v. St. Amand, 594 F.3d 39, 46 (1st Cir. 2010) ("[T]he

petitioner has not attempted to make any such showing [of actual

innocence], and none is evident on the face of the record."). His

procedurally defaulted claims of ineffective assistance of trial

counsel and prosecutorial misconduct therefore cannot be

resurrected.

C. Motion for discovery

Lee contends finally that the district court erroneously

denied his motion for discovery. A denial of habeas relief is not

appealable unless the district court or court of appeals has issued

a certificate of appealability as to the issue or issues that the

petitioner wishes to raise. 28 U.S.C. § 2253(c). Here, the

-29-
district court determined that a certificate of appealability

"should issue on all three claims," namely, ineffective assistance

of trial counsel, ineffective assistance of postconviction counsel,

and prosecutorial misconduct. Lee, 2013 WL 6865585, at *15. The

district court's certificate of appealability did not extend to the

denial of the motion for discovery, and this court was not at any

time requested to issue a supplementary certificate. Consequently,

the issue is waived and we decline to address it. See Peralta v.

United States, 597 F.3d 74, 83–84 (1st Cir. 2010).

III. Conclusion

The district court properly held that Lee's claims of

ineffective assistance of trial counsel and prosecutorial

misconduct have been procedurally defaulted. Although the claim of

ineffective assistance of postconviction counsel has not been

procedurally defaulted, it nevertheless cannot form the basis of

habeas relief, per 28 U.S.C. § 2254(i). We therefore AFFIRM the

judgment of the district court.

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