USCA1 Opinion
November 17, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________ ____________________
No. 94-2294 No. 94-2294
ROBERT E. McCLARY, ROBERT E. McCLARY,
Petitoner, Appellant, Petitoner, Appellant,
v. v.
PETER A. PEPE, JR., ET AL., PETER A. PEPE, JR., ET AL.,
Respondents, Appellees. Respondents, Appellees.
____________________ ____________________
ERRATA SHEET ERRATA SHEET
The opinion of this Court issued on November 9, 1995, is The opinion of this Court issued on November 9, 1995, is
amended as follows: amended as follows:
On page 2, footnote 27 is changed to footnote 1. On page 2, footnote 27 is changed to footnote 1.
November 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2294
ROBERT E. McCLARY,
Petitoner, Appellant,
v.
PETER A. PEPE, JR., ET AL.,
Respondents, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
Robert E. McClary on brief pro se. _________________
Scott Harshbarger, Attorney General, and Pamela L. Hunt, __________________ _________________
Assistant Attorney General, on brief for appellees.
____________________
____________________
Per Curiam. Pro se plaintiff Robert McClary appeals from __________ ___ __
the summary dismissal of his habeas corpus petition. He
claims that his conviction for trafficking cocaine is
unconstitutional because the prosecutor violated Doyle v. _____
Ohio, 426 U.S. 610 (1976), by improperly cross-examining ____
McClary and commenting on McClary's post-arrest silence in
his closing argument.
We have thoroughly reviewed the record and the parties'
briefs on appeal. We are persuaded that the habeas petition
was properly dismissed under Anderson v. Charles, 447 U.S. ________ _______
404, 408-09 (1981), (per curiam), and Grieco v. Hall, 641 ______ ____
F.2d 1029, 1032-36 (1st Cir. 1981). We note that even if we
assumed arguendo that Doyle error is present, habeas relief _____
is not warranted here. The record discloses that the
evidence against McClary was strong and that the error could
not have had a substantial and injurious effect on the
verdict. See Brecht v. Abrahamson, 113 S. Ct. 1711, 1722 ___ ______ __________
(1993). While we need not decide whether the "harmless
beyond a reasonable doubt" test of Chapman v. California, 386 _______ __________
U.S. 18, 24 (1967), should be applied to this appeal1, the
evidence indicates that any alleged Doyle error was harmless _____
under this test as well. Accordingly, the judgment of the
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1. While McClary made this argument below, he has failed to
develop it on appeal. Thus, the point has been waived. See ___
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. ______________ _______ _____
denied, 494 U.S. 1082 (1990). ______
district court is affirmed. ________
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