United States Court of Appeals
For the First Circuit
No. 09-2021
JOHN GOMES MENDES,
Petitioner, Appellant,
v.
BERNARD BRADY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Jane Elizabeth Lee, for appellant.
Jason M. Swergold, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Susanne G. Reardon, Assistant
Attorney General, were on brief, for appellee.
September 8, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. This is an appeal from denial
of relief on writ of habeas corpus under 28 U.S.C. § 2254 (2006),
sought on a claim of ineffective assistance of appellant’s trial
counsel. John Gomes Mendes was convicted in a Massachusetts court
of the first degree murder of his wife, on a record suggesting a
motive to gain control of her small inheritance to pay for
prostitutes and drugs. Although incriminating circumstantial
evidence was substantial, Mendes was not indicted and prosecuted
until thirteen years after the crime, when police learned of two
witnesses to whom he had admitted the killing.
On appeal to the Supreme Judicial Court of Massachusetts,
Mendes was represented by new counsel, and although the appeal was
governed by Mass. Gen. Laws. ch. 278, § 33E (2000), providing for
review of a narrow class of “capital” cases at a more searching
level than is typical, he made no claim of ineffective assistance
by his former lawyer at trial. He did, however, press trial
counsel’s objection to the admission of a note that the prosecution
claimed (with lay and expert evidentiary support) had been written
by the victim, saying that she was about to move out of the
apartment she and Mendes occupied. Its admission was held to have
been proper, with the court also concluding that in any event the
note did not prejudice Mendes because it was “a minor piece” of
evidence, and merely cumulative. Commonwealth v. Mendes, 441 Mass.
459, 806 N.E.2d 393, 401-02 (2004).
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Mendes then sought state post-conviction relief on
grounds including a federal claim of ineffective assistance of
trial counsel in failing adequately to contest admission of the
note as his wife’s and, alternatively, failing to establish that
Mendes himself wrote the note at some time well in advance of the
killing. The state trial court denied relief on the merits.
Mendes appealed the denial to the Supreme Judicial Court
in accordance with the special procedure for dealing with post-
conviction petitions in Section 33E cases: a single judge acts as
gatekeeper to bar access to the full court on any issue that could
have been raised at the time of direct appeal, unless (as a general
rule) the relief is sought on a basis that is both new (in the
sense of having been unavailable at the time of direct appeal) and
substantial. See Dickerson v. Attorney Gen., 396 Mass. 740, 488
N.E.2d 757, 760 (1986). While the bar is not absolute, since the
gatekeeper has discretion to allow the appeal to go to the full
court (presumably, if the grounds are substantial even though not
new), the defendant in such as case is not “excuse[d] . . . from
the procedural consequences of waiver.” Commonwealth v. Randolph,
438 Mass. 290, 780 N.E.2d 58, 64 n.7 (2002). That is, any such
review of a non-new issue will be conducted under a standard
comparatively less favorable to a petitioner. Commonwealth v.
Drew, 447 Mass. 635, 856 N.E.2d 808, 813 (2006).
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When the gatekeeper judge denied leave to appeal in this
case because the claim was neither new nor substantial, Mendes
petitioned the United States District Court for relief on writ of
habeas corpus under Section 2254. There, the Commonwealth
prevailed on the ground that the denial of relief on collateral
review by the state court rested on a procedural basis in state law
(the gatekeeper’s finding of failure to raise the claim on direct
appeal) that was independent of the federal right and adequate to
bar further relief: the gatekeeper had acted in accordance with a
state rule or practice that was “firmly established and regularly
followed.” Beard v. Kindler, 130 S.Ct. 612, 617-18 (2009) (quoting
James v. Kentucky, 466 U.S. 341, 348 (1984)). Here, Mendes argues
that the Commonwealth’s new-and-substantial gate rule is not so
established and followed; that it was inapplicable in this case
because the ineffective assistance claim rests on evidence that was
neither in the trial record nor otherwise before the court on his
direct appeal; and that in any event, application of the rule was
not treated by the gatekeeper as dispositive. On each point, we
think his position is unsound.
As for the first, the consistency of the Commonwealth’s
application of the new-and-substantial rule, this court has
previously recognized its adequacy, see Yeboah-Sefah v. Ficco, 556
F.3d 53 (1st Cir. 2009), but Mendes argues that circuit law is now
to the contrary, as declared in the subsequent case of United
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States v. Pina, 565 F.3d 48, 53 (1st Cir. 2009). There, this court
concluded that “[e]ven in cases where an ineffective assistance
claim may feasibly be raised on direct appeal, such as cases in
which the claim does not require additional factual development,
the [Supreme Judicial Court of Massachusetts] has declined to adopt
an iron-clad rule of waiver.” Id. Pina, however, is not
controlling in Section 33E cases, like this one.
Counsel for the Commonwealth responds to Pina in several
ways, including the argument that the Pina opinion left the door
open to further refinement in assessing the adequacy of the state
waiver rule and this is a good case for taking that next step. For
two reasons, we think the point well taken. The Commonwealth
argues persuasively that under Massachusetts law, Section 33E
provides for a distinct process of review by the Supreme Judicial
Court in so-called capital cases, like this one. As the statute
itself reads, entry of the appeal “shall transfer to that court the
whole case for its consideration of the law and the evidence,” and
if the court finds the verdict against the law or weight of
evidence, or finds newly discovered evidence, or concludes there is
“any other reason that justice may require,” it may fashion relief.
§ 33E. Counsel fleshes out the argument for examining Section 33E
cases as categorically separate from others by emphasizing the
practical significance of this provision, under which the Supreme
Judicial Court is not subject to the usual restrictions on the
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scope of appellate review when considering ineffective assistance
claims. In particular, when ineffective assistance is timely
raised at the appellate level in Section 33E cases the court may
examine any error by any trial participant, not just defense
counsel, that “was likely to have influenced the jury’s
conclusion.” Commonwealth v. MacKenzie, 413 Mass. 498, 597 N.E.2d
1037, 1049 (1992).1
Even more significant, the statute not only authorizes
the court to entertain motions for new trial (as for ineffective
1
That said, we do not have total confidence in our
understanding of Section 33E standards for an ineffective
assistance claim, raised at the direct review stage. Counsel for
the Commonwealth relies on Commonwealth v. Wright, 411 Mass. 678,
584 N.E.2d 621, 624 (1992) and MacKenzie, 597 N.E.2d at 1049, for
the standard of relief upon a showing of any error likely to have
influenced the jury verdict. Wright notes that the Section 33E
standard is more favorable to defendants than the usual ineffective
assistance criterion; MacKenzie explains that under this standard,
the issue does not turn on whether counsel’s performance was
“measurably below” that of ordinary fallibility, Mackenzie, 597
N.E.2d at 1049. These were 1992 cases. More recently,
Commonwealth v. Novo, 449 Mass. 84, 865 N.E.2d 777, 787 (2007) says
the standard in a case like this at the direct review stage is
“whether there was a serious failure by trial counsel and, if so,
whether the failure resulted in a substantial likelihood of
miscarriage of justice,” followed by citations, including a ”see”
citation to Wright. Commonwealth v. Drew, 447 Mass. 635, 856
N.E.2d 808, 813 (2006), however, says that ineffective assistance
claims based on the record that was before the court on direct
review but raised later (and passed through the gate to the full
court) “will be reviewed under the less favorable standard of a
substantial risk of miscarriage of justice.” Whatever may be the
significance of this apparent fluidity, it is enough for our
purposes here to say that Section 33E provides in its very terms
for a distinct breadth of review, and this suffices to qualify such
cases for their own categorical treatment in assessing the adequate
and independent character of the procedural waiver and bar rule
applied to them.
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assistance) filed with it in the first instance, but gives the
parties an opportunity to put in evidence supplementing the record
at trial. In a case like this one, for example, the ineffective
assistance claim could have been filed along with the direct
appeal, presented on the basis of an expanded record, and probably
considered not on the more searching standard of professional
adequacy, but simply on the likelihood of any influence on the
jury’s conclusion. It is this distinct standard of review,
relatively lenient toward defendants, that constitutes the quid pro
quo, as counsel explains it, for the relatively narrow opportunity
for appellate review of any subsequent claims for collateral relief
on which a defendant fails to prevail in the trial court: the
gatekeeper is there to bar the way to review on the merits of any
claim not new and substantial. § 33E.
We are satisfied that the Commonwealth makes a sufficient
case for separate, categorical treatment of Section 33E review and
the particular waiver rule expressed in the new and substantial
rule, as distinct from state practice dealing with collateral
challenges generally, to which Pina referred. There is, moreover,
a further reason to revisit Pina’s conclusion, in the Supreme
Court’s most recent explanation of the notion of the consistent
application of a state bar or waiver rule necessary to qualify that
rule as adequate to bar federal review as well. The Pina opinion
concluded that the Massachusetts gatekeeper rule was not “regularly
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and consistently applied” because “the [Supreme Judicial Court of
Massachusetts] has declined to adopt an iron-clad rule of waiver.”
Pina, 565 F.3d at 53. But in the time between briefing and
argument in this case, the Supreme Court has stated the standard
differently. Walker v. Martin, 131 S.Ct 1120 (2011), holds that
varying results owing to a degree of judicial discretion in
applying a procedural bar (a reasonable time rule in Walker) do not
disqualify it from recognition on federal habeas so long as it is
not shown to be invoked surprisingly or unfairly, or as a ploy to
discriminate against federal claims. Id. at 1130-31. Thus, the
issue of adequacy is no longer about an ironclad bar to further
review, and Walker requires us to ask the question afresh, whether
the state administration of the new-and-substantial rule in Section
33E cases gives cause for surprise here and there, or even for
something worse. The answer is that we have no indication of
anything of the sort, and as a consequence Yeboah-Sefah must be
followed as good authority for the conclusion that application of
the new-and-substantial rule in Section 33E cases is an adequate
and independent bar to collateral relief.2
2
Again, this is not to say that we claim mastery of the
nuances of Section 33E practice. We recall, for example, that one
of the sources of this court’s doubt expressed in Pina about the
certainty of state practice was the holding in a non-Section 33E
case, Commonwealth v. Zinser, 446 Mass. 807, 847 N.E.2d 1095
(2006): a petitioner for collateral relief from ineffective
assistance need not invoke Massaro v. United States, 538 U.S. 500
(2003) (ineffective assistance claim raised under 28 U.S.C. § 2255
not barred even if it could have been raised on direct appeal),
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Two points raised by Mendes are still to be dealt with,
starting with his claim that the new-and-substantial rule should
not ever have been applied in his case, since his new trial request
turns in part on evidence of his communications with trial counsel
that was not and could not have been in the record on direct
appeal; he could not, he says, have raised the issue sooner than he
did. But the short answer is the provision of Section 33E
authorizing filing a new trial motion in the Supreme Judicial Court
while a direct appeal is lodged there, with opportunity to make a
supplementary record to support it. Since Mendes had new counsel
at that point, he could have raised his claim and made his record
while the direct appeal was pending.
since under Massachusetts practice “[a]ll claims, waived or not,
must be considered,” Zinser, 847 N.E.2d at 1096. Zinser continues
to be cited in Section 33E cases. See Commonwealth v. Williams,
450 Mass. 879, 883 N.E.2d 249, 260 (2008); Novo, 865 N.E.2d at 788-
89 (2007). Novo, indeed, effectively invites the appealing
defendant who raised ineffective assistance on direct appeal to
file a subsequent new trial motion and make a further record, even
though that apparently could have been done earlier under the terms
of Section 33E by new trial motion in the Supreme Judicial Court
pending consideration of the direct appeal. Under Walker, however,
we do not take these indications of flexible state practice as
fatal to recognizing the “new” bar applied by a gatekeeper. See
131 S.Ct at 1130-31. To begin with, that bar applies to appeals to
the highest state court, not access to the trial court, where a new
trial motion would be filed following a direct appeal. Moreover,
even if the continuing Zinser citations and the Novo invitation are
regarded as raising the prospect of possible discretion on the part
of the gatekeeper if a Section 33E defendant loses a later new
trial motion in the trial court, they give no indication that the
discretion would be exercised in a surprising, unfair, or
discriminatory way within the terms stated in Walker.
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The final point is Mendes’s claim that the gatekeeper did
not rely on the waiver rule clearly enough to qualify it as a bar
for federal purposes here. He says that the gatekeeper judge went
on to consider the merits just as the state court had done in
Harris v. Reed, 489 U.S. 255 (1989), with the consequence that the
gatekeeper’s reference to procedural default does not qualify as
the unambiguously plain statement required for recognizing the rule
as a bar on a subsequent federal habeas petition. The gatekeeper
judge’s references to merits here, however, were not comparable to
the merits discussion in Harris. The gatekeeper was not ruling on
the merits, for he had no authority under state law to do so;
instead, he was simply addressing the second prong of the new-and-
substantial rule, the substantiality of the claim as measured by
Mendes’s chances of success with it. For that matter, those
chances had already been indicated in the direct appeal, when the
full Supreme Judicial Court had spoken of the note as merely a
minor piece of evidence, a conclusion that portended fatality to
the claim of prejudice from its admission or, implicitly, from its
consideration as the victim’s note, not the defendant’s. By the
same token, we fail to see how Mendes loses anything by recognizing
the bar to further litigation about the admission and authorship of
the note.
In sum, we have been given no sound reason to decline to
apply Yeboah-Sefah and accordingly accept the adequacy and
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independence of the gatekeeper’s application of the new-and-
substantial rule to Mendes’s ineffective assistance claim.
Affirmed.
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