USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-2197
OSCAR N. BURKS, JR.,
Petitioner, Appellant,
v.
LARRY E. DUBOIS,
Respondent, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge] ___________________
_________________________
Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
_________________________
Neil F. Colleran for appellant. ________________
Gregory I. Massing, Assistant Attorney General, with whom ___________________
Scott Harshbarger, Attorney General, was on brief, for appellee. _________________
_________________________
June 8, 1995
_________________________
SELYA, Circuit Judge. Petitioner-appellant, Oscar N. SELYA, Circuit Judge. _____________
Burks, Jr., asked the federal district court to invoke its habeas
corpus powers, 28 U.S.C. 2241-2254 (1988), and set aside his
state conviction on charges of trafficking in cocaine, exploiting
a minor for illegal drug-related purposes, and illicitly
conveying articles to a state penal institution. See Mass. Gen. ___
L. ch. 94C, 32E, 32K (1989); Mass. Gen. L. ch. 268, 31
(1989). The district court declined to issue the writ.
Petitioner appeals. We affirm.
I I _
Background Background __________
The stage can be set for consideration of this single-
issue appeal without lengthy elaboration. In doing so, we take
the facts in the conventional manner prescribed by the
jurisprudence of habeas corpus. See 28 U.S.C. 2254(d) ___
(stipulating presumption of correctness that attaches to state
court findings of fact in federal habeas proceedings); see also ___ ____
Miller v. Fenton, 474 U.S. 104, 112-15 (1985). ______ ______
Petitioner, a correctional officer at a state
penitentiary in Gardner, Massachusetts, agreed to facilitate an
inmate's scheme to smuggle contraband into the prison. The plan
called for petitioner to pick up an ounce of cocaine at a
predetermined spot outside the institution and deliver it to the
inmate in return for a $200 fee plus a jot of cocaine.
Petitioner did not know that his newfound crony was fronting for
the state police.
2
After one unsuccessful attempt, the inmate told
petitioner that the drugs and the money would be deposited in a
residential mailbox in Worcester. On August 15, 1991, petitioner
sojourned to that city, located the house (which, unbeknownst to
him, was under intensive police surveillance), and drove by it
several times. He then visited a nearby doughnut shop where he
invented a cock-and-bull story, the gist of which was that he
wished to retrieve a letter from his girlfriend's mailbox but
could not do so himself. On this basis he recruited a 14-year-
old boy as an unwitting accomplice, agreeing to pay the lad $30
to fetch the prize from the mailbox.
The pair reconnoitered the drop site. Petitioner then
watched as the boy approached the mailbox and withdrew a paper
bag. Instead of waiting for his courier to return, however,
petitioner drove away. We think a jury could properly have
inferred either that petitioner's nerve failed or that he spied
the stakeout. At any rate, he never obtained possession of the
bag.
In due course, the authorities arrested petitioner,
charged him, and proceeded to trial. After the Commonwealth
presented its case, the petitioner testified in his own defense.
He admitted colloguing with the inmate. He further admitted that
he knew the mailbox contained both drugs and money, but he
assumed that they would be in separate envelopes. He swore that
he only intended to pocket the cash, not to deliver the cocaine.
When he saw the paper bag, he thought that it probably contained
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drugs. At that point, he panicked and fled.
On cross-examination the prosecutor asked petitioner:
"And, sir, you knew that that package contained drugs, and still,
sir, you sent that fourteen year old kid to retrieve it, didn't
you, sir?" The superior court judge, sua sponte, ruled the ___ ______
question improper, interjecting: "That's argumentative." The
prosecutor immediately shifted gears.1
During closing argument, the prosecutor, using
rhetorical questions to flay her prey, took unwarranted liberties
with this portion of her cross-examination. She argued:
And what does the defendant do? He
leaves the fourteen year old high and dry,
knowing I asked him. I said to him, "You
knew that package contained cocaine, but
still you sent a fourteen year old to
retrieve it?"
And what did the defendant say? "Yes."
Petitioner's trial counsel did not object to the prosecutor's
flagrant misstatement. In the end, the jury found petitioner
guilty.
Following the imposition of sentence, petitioner
secured the services of successor counsel and moved for a new
trial, arguing that the prosecutor's distortion had caused
justice to miscarry. The trial judge rejected the motion and
petitioner appealed. The Massachusetts Appeals Court summarily
____________________
1At first, it was thought that petitioner did not answer the
question. In considering petitioner's motion for a new trial,
however, the judge queried the court reporter, who consulted her
tape recording of the testimony and reported that petitioner had
in fact responded audibly, stating: "No. I did not."
4
affirmed the denial of relief, see Commonwealth v. Burks, 608 ___ ____________ _____
N.E.2d 1066 (Mass. App. Ct. 1993) (table) (unpublished rescript),
and the Supreme Judicial Court declined further appellate review,
see Commonwealth v. Burks, 617 N.E.2d 639 (Mass. 1993) (table). ___ ____________ _____
Little daunted, petitioner sought habeas corpus in the
federal district court. He advanced a single claim: that the
prosecutor's misstatement of the evidence in her summation
deprived him of due process and thwarted his right to a fair
trial. The respondent, a state correctional official, moved to
dismiss, asserting that because petitioner had not objected to
the misstatement when it was uttered in state court, his
constitutional claim could not be entertained in a federal habeas
proceeding. Petitioner acknowledged the procedural default but
nonetheless opposed dismissal on two bases. He said that he
could demonstrate cause for, and prejudice from, the procedural
default; and, moreover, that absent habeas relief, a miscarriage
of justice would go uncorrected. Judge Gertner, adopting the
report and recommendation of a magistrate judge, overrode these
objections and dismissed the petition. This appeal followed.
II II __
Analysis Analysis ________
A. A _
Applicable Legal Principles Applicable Legal Principles ___________________________
The habeas corpus anodyne is designed neither to
provide an additional layer of conventional appellate review nor
to correct garden-variety errors, whether of fact or law, that
5
may stain the record of a state criminal trial. Rather, the
remedy is limited to the consideration of federal constitutional
claims. See Herrera v. Collins, 113 S. Ct. 853, 860 (1993) ___ _______ _______
(affirming that the purpose of federal habeas corpus review is to
ensure that individuals are not imprisoned in violation of the
Constitution); see also Barefoot v. Estelle, 463 U.S. 880, 887 ___ ____ ________ _______
(1983) ("Federal courts are not forums in which to relitigate
state trials."). Thus, federal habeas review is precluded, as a
general proposition, when a state court has reached its decision
on the basis of an adequate and independent state-law ground.
See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. ___ _______ ________ ______
Reed, 489 U.S. 255, 262 (1989); Ortiz v. Dubois, 19 F.3d 708, 714 ____ _____ ______
(1st Cir. 1994), cert. denied, 115 S. Ct. 739 (1995). _____ ______
A defendant's failure to object in a timely manner at
his state criminal trial may constitute an adequate and
independent state ground sufficient to trigger the bar rule so
long as the state has a consistently applied contemporaneous
objection requirement and the state court has not waived it in
the particular case by resting its decision on some other ground.
See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Puleio v. Vose, ___ __________ _____ ______ ____
830 F.2d 1197, 1199 (1st Cir. 1987), cert. denied, 485 U.S. 990 _____ ______
(1988). Hence, a state court decision resting upon a finding of
procedural default such as a decision rooted in a defendant's
noncompliance with an unwaived contemporaneous objection
requirement forecloses federal habeas review unless the
petitioner can demonstrate cause for the default and prejudice
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stemming therefrom, or, alternatively, unless the petitioner can
show that a refusal to consider the merits of the constitutional
claim will work a miscarriage of justice. See Coleman, 501 U.S. ___ _______
at 750; Harris, 489 U.S. at 262. ______
This framework is directly pertinent to petitioner's
appeal. Massachusetts has a routinely enforced, consistently
applied contemporaneous objection rule. See, e.g., Puleio, 830 ___ ____ ______
F.2d at 1199; Commonwealth v. Fluker, 385 N.E.2d 256, 261 (Mass. ____________ ______
1979); see also Mass. R. Crim. P. 22. Petitioner honored this ___ ____
rule only in the breach; after all, his petition is based
exclusively on his claim that the prosecutor misrepresented the
evidence when summing up, yet he failed to lodge a
contemporaneous objection at the time the misrepresentation took
wing. Moreover, the state courts relied on, and did not waive,
the contemporaneous objection requirement; the appeals court, for
instance, rested its rejection of petitioner's belated complaints
about the prosecutor's misstatement squarely on this adequate and
independent state ground.2 Consequently, we have before us a
classic example of a procedural default, and petitioner can
succeed in his habeas case only by showing cognizable cause for,
____________________
2To be sure, the appeals court also reviewed the merits of
petitioner's contentions to see whether a miscarriage of justice
lurked in the record. But, given the contours of Massachusetts
practice, see, e.g., Mass. Gen. L. ch. 211A, 10 (1989), that ___ ____
sort of limited review, clearly labelled, does not work a waiver.
See Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991) ___ ____ _____________
(explaining that state appellate review under the Massachusetts
miscarriage of justice standard does not amount to state waiver
of the contemporaneous objection rule); Puleio, 830 F.2d at 1200 ______
(same).
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and cognizable prejudice from, his procedural default or,
alternatively, by demonstrating that the federal court's failure
to address the claim on habeas review will occasion a miscarriage
of justice.
B. B. _
Cause and Prejudice Cause and Prejudice ___________________
Faced by a state-court judgment that rests upon an
adequate and independent state ground, a habeas petitioner has
the burden of proving both cause and prejudice. See Coleman, 501 ___ _______
U.S. at 750; Wainwright, 433 U.S. at 87; Puleio, 830 F.2d at __________ ______
1202. Here, we start and end with cause.3
In the habeas context, cause is a term of art. To
excuse a procedural default, a petitioner's cause must relate to
an objective factor, external to the defense, that thwarted (or
at least substantially obstructed) the efforts of the defendant
or his counsel to obey the state's procedural rule. See Murray ___ ______
v. Carrier, 477 U.S. 478, 488 (1986); Magee v. Harshbarger, 16 _______ _____ ___________
F.3d 469, 471 (1st Cir. 1994). Mere attorney error, not
amounting to ineffective assistance in a constitutionally
significant sense, see, e.g., Scarpa v. Dubois, 38 F.3d 1 (1st ___ ____ ______ ______
Cir. 1994), cert. denied, 115 S. Ct. 940 (1995) and additional _____ ______ ______________
____________________
3Because we descry no cognizable cause sufficient to excuse
petitioner's procedural default, see infra, we have no occasion ___ _____
to discuss the prejudice prong of the two-part inquiry in any
great detail. We add in passing, however, that, having reviewed
the full record, the state's case appears to have been very
muscular. Viewed in light of all the evidence, the prosecutor's
incorrect statement does not seem to us to have actually and
substantially prejudiced petitioner. See, e.g., Ortiz, 19 F.3d ___ ____ _____
at 714 (discussing prejudice standard).
8
petition for cert. filed (U.S. Oct. 27, 1994) (No. 94-9157), is ________________________
insufficient to constitute cause.4 See Coleman, 501 U.S. at ___ _______
753; Murray, 477 U.S. at 488; Puleio, 830 F.2d at 1201. The ______ ______
principle hardly could be to the contrary. If inadvertence of
counsel, without more, were deemed to constitute sufficient
cause, the cause requirement would be reduced to little more than
a speed bump on the road to a federal forum.
In an effort to show that his procedural default was
caused by an external, objective impediment, Burks avers that his
trial counsel did not hear the answer to the prosecutor's
improper question (quoted supra p. 4). This fact, petitioner _____
contends, caused counsel's later silence when the prosecutor
incorrectly recounted the testimony. Petitioner's thesis melts
under the hot glare of scrutiny.
Assuming for the sake of argument that counsel's
failure to hear a witness' response may constitute an external,
objective impediment under some circumstances, cf. Puleio, 830 ___ ______
F.2d at 1201 (discussing, but sidestepping as unexhausted, a
claim that trial counsel's hearing impairment operated as an
external, objective impediment to compliance with the
Massachusetts contemporaneous objection rule), it cannot do so
here. To provide cause, a factor not only must be objectively
ascertainable and external to the defense, but also must have
brought about the event of default. See generally James S. ___ _________
____________________
4We note that petitioner did not assert ineffective
assistance of counsel as a basis for relief in his habeas corpus
application, nor has he tendered such a claim on appeal.
9
Liebman, Federal Habeas Corpus Practice and Procedure 24.3, at ____________________________________________
381-83 (Supp. 1993). In other words, cause, as the name implies,
must bear a causal relationship to noncompliance. That
relationshipis utterlylacking inthis instance. Weexplain briefly.
There is no foundation in the record for suggesting
that counsel did not hear the trial judge brand the question as
being ultracrepidarian. And because the question itself was an
improper subject for closing argument, defense counsel had
precisely the same incentive to pounce on the prosecutor's
subsequent reference to it whether Burks answered "no" or did not
answer at all. In addition, even if defense counsel did not hear
Burks respond in the negative, the prosecutor's misquotation was __ ___ ________
still a potentially harmful distortion, and defense counsel could
and should have objected when the prosecutor asserted that
petitioner had answered in the affirmative. On this basis, then, __ ___ ___________
the lower court correctly concluded that petitioner failed to
show any legally cognizable cause sufficient to excuse his
procedural default.
C. C. _
Miscarriage of Justice Miscarriage of Justice ______________________
Even absent a showing of cause and prejudice, a federal
court exercising its habeas powers should nonetheless overlook a
procedural default and hear a barred constitutional claim on the
merits if its failure to do so would result in a fundamental
miscarriage of justice. See Murray, 477 U.S. at 495-96. This is ___ ______
a narrow exception to the cause-and-prejudice imperative, seldom
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to be used, and explicitly tied to a showing of actual innocence.
See Schlup v. Delo, 115 S. Ct. 851, 864 (1995); Ortiz, 19 F.3d at ___ ______ ____ _____
714; see also Watkins v. Ponte, 987 F.2d 27, 31 (1st Cir. 1993) ___ ____ _______ _____
(explaining that, in a habeas case, the "petitioner must
supplement the constitutional violation with a `colorable showing
of factual innocence'") (quoting McCleskey v. Zant, 499 U.S. 467, _________ ____
495 (1991)).
To be sure, a habeas petitioner need not prove his
innocence beyond all doubt in order to reach the safe haven of
the miscarriage exception: it suffices if the petitioner can
show a probability that a reasonable jury would not have
convicted but for the constitutional violation.5 See Murray, ___ ______
477 U.S. at 496.
Here, petitioner has not made a satisfactory showing of
actual innocence. His argument on this point alludes to no new
information suggesting innocence, but merely rehashes the
testimony adduced at his trial in an attempt to foster a
suspicion that the prosecutor's overreaching may have been the
straw that broke the dromedary's back and, thus, led the jury to
convict. However, the miscarriage of justice standard requires
____________________
5Respondent asserts that Sawyer v. Whitley, 112 S. Ct. 2514 ______ _______
(1992), has placed a gloss on Murray, and now requires, in a ______
noncapital case, that petitioner make a showing of actual
innocence by "clear and convincing" evidence, rather than on a
probability standard. Id. at 2523. For two reasons, we cannot ___
embrace this thesis, at least at the present time. First,
respondent may be reading Sawyer too broadly, especially in light ______
of Schlup. Second, we note that, in all events, the appellant ______
cannot satisfy even the probability standard limned in Murray. ______
Consequently, we leave to another day the question of Sawyer's ______
(and Schlup's) effect, if any, on the lessons of Murray. ______ ______
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more than a possibility of prejudice, see Schlup, 115 S. Ct. at ___ ______
867 & n.45; Sawyer v. Whitley, 112 S. Ct. 2514, 2522 & n.13 ______ _______
(1992), and petitioner's excursion through the record does not by
any stretch of the imagination show a probability of actual
innocence. Accordingly, his speculation about what might or
might not have been the outcome of an error-free trial is an
exercise in futility. Put another way, petitioner's recreation
of what transpired in the state trial court shows, at most, that
there was a legitimate jury question as to his guilt, and that
the prosecutor placed her thumb on the scales of justice at one
point. This is not enough to qualify for extraordinary relief
under Schlup and its precursors. As Justice Stevens wrote, ______
"[w]ithout any new evidence of innocence, even the existence of a
concededly meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would allow
a habeas court to reach the merits of a barred claim." Schlup, ______
115 S. Ct. at 861.
We need go no further. Because petitioner has not
shown that the failure to entertain his constitutional claim more
likely than not will result in a fundamental miscarriage of
justice, his habeas petition remains a casualty of his procedural
default.
Affirmed. Affirmed ________
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