United States Court of Appeals
For the First Circuit
No. 11-1025
LOUIS R. COSTA,
Petitioner, Appellant,
v.
TIMOTHY HALL, Superintendent, Massachusetts Correctional
Institute; THOMAS REILLY,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
David J. Apfel, with whom Elianna J. Nuzum, Kristen A.
Kearney, and Goodwin Procter LLP, were on brief, for petitioner.
Argie K. Shapiro, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General of
Massachusetts, was on brief, for respondents.
March 8, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. Louis Costa is serving a life
sentence without possibility of parole for the first-degree murders
of two men in 1986 in Boston's North End. One of the victims was
shot sixteen times, the other seven, at close range. Three
defendants were charged and the ballistics evidence indicated that
three guns were used.
Costa was sixteen years old at the time, but after a
hearing in juvenile court, he was transferred to Massachusetts
Superior Court for adult criminal proceedings, based on separate
findings that there was probable cause to believe he had committed
the murders and that he was not amenable to rehabilitation in the
juvenile justice system. Had he remained in juvenile court, he
would have undergone rehabilitation within the juvenile system;
once transferred to Superior Court, he faced life imprisonment if
convicted.
Costa's first conviction was vacated in 1992 by the
Massachusetts Supreme Judicial Court ("SJC"). He was tried a
second time in 1994, convicted again, and sentenced to life
imprisonment. Because he was convicted on an indictment of first-
degree murder, he invoked the special procedure under Massachusetts
General Laws ch. 278, § 33E, giving the SJC plenary review on
appeal as to his convictions after each trial. After Costa's
second trial, the SJC affirmed the juvenile court's transfer
decision, his conviction, and his life sentence.
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In 1999, Costa filed a motion for a new trial in Superior
Court, asserting for the first time that his trial counsel at the
second trial was ineffective in failing to attack the non-
amenability finding, as was his appellate counsel in failing to
raise the same issue on his second appeal. The Superior Court
judge rejected the motion.
Costa then sought discretionary review in the SJC
pursuant to § 33E, filing a petition with a Single Justice
gatekeeper. On September 14, 2000, a Single Justice rejected
Costa's § 33E petition for leave to appeal the denial of his
motion. The Single Justice held, as a matter of state law, that
the petition failed to present a "new and substantial question."
On October 30, 2000, Costa filed a petition for a writ of
habeas corpus in federal district court making essentially the same
two ineffective assistance of counsel claims along with other
claims not before us. For reasons not entirely obvious from the
record, it took ten years for the district court to hear and deny
Costa's petition, which it did on December 2, 2010. Costa took a
timely appeal.
We affirm the denial of federal habeas relief. Under our
decisions in Mendes v. Brady, 656 F.3d 126 (1st Cir. 2011), cert.
denied, No. 11-7674, 2012 WL 538490 (U.S. Feb. 21, 2012), and
Yeboah-Sefah v. Ficco, 556 F.3d 53 (1st Cir. 2009), the Single
Justice's denial of further review is an independent and adequate
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state ground. This bar to our review may only be lifted if Costa
shows cause and prejudice. He has not, and so federal habeas
review is barred.
I.
Louis Costa was one of three defendants charged with
first-degree murder in connection with the February 19, 1986
shooting deaths of Joseph Bottari and Frank Angelo Chiuchiolo in
Boston's North End. Commonwealth v. Tanso, 583 N.E.2d 1247, 1249
(Mass. 1992). Because Costa was sixteen years old at the time of
the murders, the initial proceedings took place in juvenile court.
Pursuant to the statutory scheme then in effect, if the juvenile
court found probable cause to believe that Costa had committed the
murders, the court was required to make a separate "amenability"
determination as to Costa's potential for rehabilitation within the
juvenile justice system. Mass. Gen. Laws ch. 119, § 61 (1985)
(repealed 1996). Finding both probable cause and non-amenability,
the juvenile court transferred Costa to Superior Court to stand
trial as an adult. Costa opposed the transfer on both grounds.
At the probable cause portion of Costa's transfer
hearing, several witnesses testified, including two eyewitnesses to
the murders: Boston attorney Joseph Schindler, who observed the
murders from his apartment window in North Boston, and Richard
Storella, who was himself a participant in the murders. Storella,
who received immunity for his testimony, flatly placed Costa in
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both the planning and execution of the murders. Storella's account
of the murders at the hearing diverged somewhat from what he had
originally disclosed to investigative officers after the murders
took place, and Costa's attorney at the transfer hearing closely
cross-examined Storella on these inconsistencies. Based on the
testimony from the two eyewitnesses, Schindler and Storella, as
well as on ballistics evidence indicating that each victim had been
shot with three different weapons, the court found probable cause
to charge Costa with the two murders.
Having found probable cause, the court conducted an
extensive amenability hearing, at which it expressly considered the
required statutory factors: "(a) the seriousness of the alleged
offense; (b) the child's family, school and social history,
including his court and juvenile delinquency record, if any;
(c) adequate protection of the public; (d) the nature of any past
treatment efforts for the child; and (e) the likelihood of
rehabilitation of the child." Mass. Gen. Laws ch. 119, § 61 (1985)
(repealed 1996).
Two psychiatric experts for the Commonwealth, as well as
Costa's own psychiatric expert, testified at the hearing. Based on
their review of a variety of materials, including interviews with
Costa's family and psychological examinations of Costa, the experts
testified as to Costa's family life, school background, substance
abuse, and psychiatric profile. After considering this testimony
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and the evidence introduced at the hearing, the court found that
Costa had "admit[ted] to a history of aggressive behavior" and
alcohol abuse, that he experienced no remorse, had nothing but
"disregard for authority," and suffered from a "conduct disorder .
. . characterized by a repetitive and persistent pattern of
aggressive conduct against the rights of others." Because of these
qualities, the court found that Costa was "not a promising
candidate for psychological interventions."
The court also found that Costa's family life was
"unstable, volatile, and conflict ridden." Costa's father had been
sentenced to jail soon after Costa's birth. Although his father
had been paroled thirteen years later, at the time of the hearing
his whereabouts were unknown, and several arrest warrants had
issued for his alleged violations of parole. Costa's mother had
her own psychological disorders, for which she had been
hospitalized on occasion. She exercised "little, if any control
over" Costa. The court emphasized that neither Costa nor his
mother would admit to any problems with Costa's behavior, a problem
of significance, since family therapy constituted a primary "mode
of intervention" for juvenile delinquents under the statute, but,
as the court noted, "requires a recognition by all relevant parties
that a problem exists and that there is a need for change."
The court also noted that "[l]ong-term residential
treatment in the juvenile justice system" would not ordinarily
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"extend beyond the defendant's 18th birthday." At the time of the
hearing, Costa was 16.6 years old, and the court underscored the
probable outcome that if it retained jurisdiction over Costa, he
would receive between eight to eighteen months of treatment. Such
a short period of treatment, the court found, would "hardly satisfy
the defendant's dire need for long-term secure and rehabilitative
treatment."
In April of 1986, the court issued a written order
finding Costa not amenable to rehabilitation within the juvenile
system, dismissing Costa's delinquency charges, and transferring
his case to Superior Court. Seven months later, the Superior Court
granted Costa's motion to remand the case to the juvenile court for
a clarification of the court's transfer findings, "in particular,
the finding of likelihood of rehabilitation." At this point, Costa
submitted additional psychiatric and behavioral evidence in the
form of reports issued by the Department of Youth Services, which
had exercised supervision over him during the pre-trial period.
In a revised ruling examining at length Costa's
psychological profile, family and behavioral history, substance
abuse, and potential for rehabilitation, the court reaffirmed its
non-amenability findings, concluding that: "by [his] actions [the
shootings], his admitted history of aggressive behavior, his lack
of anxiety, fear or remorse, and his disrespect for authority, in
general, [Costa] has demonstrated that he is an exceptionally
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dangerous individual who poses a substantial threat to the safety
of the public." Commonwealth v. DiBenedetto (DiBenedetto I), 605
N.E.2d 811, 819 (Mass. 1992) (second alteration in original).
A jury convicted Costa of two counts of first-degree
murder in Superior Court on April 11, 1988. In a motion for a new
trial filed by Costa and denied by the Superior Court, he argued
that newly uncovered evidence impugning Storella's credibility
required that his convictions be vacated and the case be sent back
for a new probable cause determination by the juvenile court.
Subsequently, Costa appealed his conviction and the
denial of his motion for a new trial to the SJC. Under its plenary
powers to review all issues -- whether raised or overlooked by the
defendant -- on direct appeal of a capital case, see Mass. Gen.
Laws ch. 278, § 33E, the SJC thoroughly considered both aspects of
the juvenile court's transfer decision: the probable cause and non-
amenability findings, DiBenedetto I, 605 N.E.2d at 818-19. The SJC
affirmed the Superior Court's order denying Costa's motion for a
new probable cause hearing, crediting the Superior Court's finding
that Costa's newly uncovered evidence "would have had little or no
value as material which would bear upon the credibility of
Storella." Id. at 818. In addition, the SJC examined the juvenile
court's non-amenability finding and found it to be without error.
Id. at 819.
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Although it rejected his transfer hearing argument, as
well as various of his other arguments, the SJC reversed Costa's
conviction and ordered a new trial based on errors in the admission
of certain evidence at trial.1 Id. at 813-14.
As a result, Costa's second trial was also in Superior
Court. Although he had been an unavailable witness at Costa's
first trial, Storella testified at the second trial, giving another
account of the murders, inconsistent with his earlier account at
Costa's transfer hearing. Storella's reliability became a key
issue at the second trial, prompting all three defendants to
strenuously challenge the veracity of his testimony. Commonwealth
v. DiBenedetto (DiBenedetto II), 693 N.E.2d 1007, 1009 (Mass.
1998).
The jury again convicted Costa on two counts of murder in
the first degree. On appeal, Costa again challenged Storella's
role in the juvenile court's decision to transfer his case, arguing
that he was entitled to a new probable cause hearing, this time
based on Storella's inconsistent testimony at the second trial.
1
Although Richard Storella testified at Costa's transfer
hearing, he was unavailable to testify at Costa's first trial in
Superior Court. At that trial, the Superior Court admitted against
Costa Storella's recorded testimony from the transfer hearing.
Costa argued to the SJC that because the juvenile court had limited
his cross-examination of Storella at the transfer hearing, the
admission of Storella's recorded testimony at his trial violated
the Confrontation Clause. The SJC agreed and ordered a new trial.
Commonwealth v. DiBenedetto (DiBenedetto I), 605 N.E.2d 811, 815-16
(Mass. 1992).
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The SJC rejected this claim on the grounds that "[i]n his numerous
versions of the crime, Storella never wavered from his position
that Costa was one of the shooters." Id. at 1014. It affirmed the
transfer and conviction.
Costa later filed a motion for a new trial in Superior
Court, in which he expressly raised for the first time the claims
that each of his trial and appellate counsel were ineffective in
failing to present claims for reconsideration of the juvenile
court's non-amenability finding in light of Storella's inconsistent
testimony. The Superior Court denied the motion on the grounds
that on Costa's first appeal, "the issue of Storella's credibility
at the transfer hearing was argued, the judge's rulings were
considered thoroughly and the decision to transfer was found to be
without error;" the same issue was again "presented and rejected"
on Costa's second appeal; and, beyond this, Costa had already
received plenary review under § 33E on both appeals. The court
also specifically noted that Costa had waived any claim as to
ineffective assistance of trial counsel by failing to raise it on
direct appeal. Thus finding Costa's claims procedurally defaulted
under state law, the Superior Court reviewed the case for error
amounting to "a substantial risk of a miscarriage of justice," the
default standard of review in Massachusetts for unpreserved claims,
Commonwealth v. Randolph, 780 N.E.2d 58, 64-65 (Mass. 2002)
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(quoting Commonwealth v. Freeman, 227 N.E.2d 3, 9 (Mass. 1967))
(internal quotation marks omitted), and denied relief.
Pursuant to Massachusetts General Laws ch. 278, § 33E,
Costa petitioned a Single Justice of the SJC for review of his
motion for a new trial. The Single Justice denied his petition in
a written decision finding that he "failed to present a new and
substantial question" as required for further discretionary review
by the SJC. The Single Justice noted in his opinion that
"Storella's credibility at the transfer hearing had been argued in
both previous appeals, each time without success," and that
"Storella's testimony played but a minor role" in the juvenile
court's non-amenability determination.
Subsequently, Costa filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 in federal district court. The
district court denied Costa's petition, but issued a limited
Certificate of Appealability as to whether Costa's trial and
appellate counsel were ineffective in failing to challenge the
juvenile court's non-amenability findings.2
2
The district court also issued the Certificate of
Appealability as to Costa's claims that his trial and appellate
counsel were ineffective in failing to argue that the Commonwealth
violated its constitutional duty under Brady v. Maryland, 373 U.S.
83 (1963), to disclose exculpatory evidence related to Storella's
immunity agreement. Costa has not pursued these Brady claims on
appeal.
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II.
We review the district court's denial of habeas relief
de novo. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006) (citing
Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir. 2003)).
Ordinarily, a federal habeas court may not review a state
prisoner's claims where a state court has "declined to address
[those] claims because the prisoner . . . failed to meet a state
procedural requirement," and where this decision "rests on
independent and adequate state procedural grounds." Maples v.
Thomas, 132 S. Ct. 912, 922 (2012) (alteration in original)
(quoting Walker v. Martin, 131 S. Ct. 1120, 1127 (2011)) (internal
quotation marks omitted). This independent and adequate state
grounds doctrine "is grounded in concerns of comity and
federalism." Coleman v. Thompson, 501 U.S. 722, 730 (1991). "[A]
habeas petitioner who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived the
state courts of an opportunity to address those claims in the first
instance." Edwards v. Carpenter, 529 U.S. 446, 451 (2000)
(alteration in original) (quoting Coleman, 501 U.S. at 732)
(internal quotation marks omitted). Thus, a petitioner must
demonstrate cause for any state-court procedural default of federal
claims, and prejudice therefrom, before the federal courts may
consider the merits of those claims. Id.
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The "particular waiver rule" expressed in Massachusetts's
§ 33E procedure for gatekeeper review merits "separate, categorical
treatment" as an independent and adequate state ground. Mendes,
656 F.3d at 129. A Single Justice's finding that a petitioner has
not raised a "new-and-substantial" question for further review
constitutes a finding of procedural default under state law. Id.
at 131; cf. Walker, 131 S. Ct. at 1127.
Under Massachusetts law, a claim is not "new" within the
meaning of § 33E where it "has already been addressed, or where it
could have been addressed had the defendant properly raised it at
trial or on direct review." Commonwealth v. Gunter, 945 N.E.2d
386, 393 (Mass. 2011), cert. denied, 132 S. Ct. 218 (2011).
Section 33E "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." Id. (quoting Commonwealth v. Pisa, 425 N.E.2d
290, 293 (Mass. 1981)). A defendant, moreover, may not avoid
§ 33E's "new and substantial" rule by simply attributing such
claims to ineffective assistance of counsel, id. at 393-94; even
where a Single Justice allows SJC review, the claims will be
reviewed under the "substantial risk of a miscarriage of justice"
standard ordinarily applicable to unpreserved claims,3 Commonwealth
3
Section 33E provides for a more generous standard of
review for ineffective assistance of counsel claims brought
alongside a defendant's direct appeal. See Mendes v. Brady, 656
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v. Lao, 877 N.E.2d 557, 563 (Mass. 2007); Randolph, 780 N.E.2d at
65; see also Gunter v. Maloney, 291 F.3d 74, 78-79 (1st Cir. 2002).
Recognizing that underlying Costa's ineffective
assistance of counsel claims was an argument about Storella's
credibility, an issue well-covered at both of Costa's trials and
respective appeals, the Single Justice found that his claims did
not raise a "new" issue within the meaning of § 33E. "On the
question of the defendant's amenability to rehabilitation," the
Single Justice found that "Storella's testimony played but a minor
role, forming just one sentence in [eight pages] of findings made
by the transfer judge." The Justice found that the juvenile court
gave thorough "consideration to the appropriate factors in deciding
to transfer the defendant," and that any "differences in Storella's
testimony do not require a new transfer hearing." The Justice
noted that in both of Costa's prior appeals, the SJC "determined
F.3d 126, 130 (1st Cir. 2011), cert. denied, No. 11-7674, 2012 WL
538490 (U.S. Feb. 21, 2012). At this stage, the defendant has the
opportunity to file a motion for a new trial in the SJC and
supplement the record there as needed: any ineffective assistance
of counsel claims benefit from the more favorable "substantial
likelihood of a miscarriage of justice" standard of review.
Commonwealth v. Novo, 865 N.E.2d 777, 787 (Mass. 2007). However,
after rescript has issued in the direct appeal, unpreserved claims
attributed to ineffective assistance of counsel will be reviewed
for error "giv[ing] rise to a substantial risk of a miscarriage of
justice," the standard ordinarily applicable to unpreserved claims.
Commonwealth v. Randolph, 780 N.E.2d 58, 65 (Mass. 2002); see also
Commonwealth v. Smith, 951 N.E.2d 322, 320-24 (Mass. 2011)
(explaining the difference between the two standards of review).
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there was no error in the decision to transfer the defendant to the
Superior Court for trial as an adult."
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 Storella'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 plausible,4 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.
The fact that the Single Justice also explained his views
as to why the claims were not new and not substantial does not
convert his decision into one on the merits. We made this clear in
4
Given that in its earlier decisions, the SJC twice
reviewed and decided the transfer claim against Costa, the claim
was not "new" within the meaning of § 33E. See Commonwealth v.
DiBenedetto (DiBenedetto II), 693 N.E.2d 1007, 1014 (Mass. 1998);
DiBenedetto I, 605 N.E.2d at 818-19. The ineffective assistance of
appellate counsel claim merely reiterated the same substantive
claim asserted against trial counsel.
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Mendes: any supplemental discussion of the petitioner's claims is
"not [a] ruling on the merits," since the Single Justice has "no
authority under state law" to reach the merits in his or her
exercise of gatekeeper review.5 Id. at 131. Section 33E's waiver
rule is unaltered by the Single Justice's discussion of Costa's
claims in the decision denying him further review.
III.
As a rule, when a state prisoner has defaulted a federal
claim in state court pursuant to an independent and adequate state
procedural rule, federal habeas relief is barred unless the
prisoner demonstrates either cause for and prejudice from the
default, Maples, 132 S. Ct. at 922; Bucci v. United States, 662
F.3d 18, 27 (1st Cir. 2011), or actual innocence, Schlup v. Delo,
513 U.S. 298, 321 (1995). "The procedural default doctrine and its
attendant cause and prejudice standard . . . apply alike whether
5
This 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 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.
And in Phoenix v. Matesanz, 189 F.3d 20 (1st Cir. 1999), we
noted that in a case where the Single Justice finds a procedural
default but briefly examines the merits to determine if the
"substantial risk of a miscarriage of justice" standard is met,
such review does not undercut the independence and adequacy of the
state grounds. Id. at 25 n.2.
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the default in question occurred at trial, on appeal, or on state
collateral attack." Carpenter, 529 U.S. at 451 (internal citations
and quotation marks omitted); see also Murray v. Carrier, 477 U.S.
478, 490-91 (1986). Costa can show neither cause nor prejudice
here, nor has he attempted to show actual innocence.
Because Costa has procedurally defaulted his ineffective
assistance of counsel claims in state court, he cannot simply rely
on what is at the heart of the merits of those claims, the alleged
ineffectiveness, to show cause for procedural default of the same
claims. Carpenter, 529 U.S. at 453. He must independently satisfy
the cause and prejudice standard with respect to both ineffective
assistance claims. Federal habeas courts do not exempt ineffective
assistance of counsel claims from the general rule requiring cause
and prejudice for procedural default, because to do so would render
the exhaustion requirement "illusory." Id. at 452. This is true
where, as here, the petitioner attempts to excuse procedural
default of his ineffective assistance of counsel claim by pointing
merely to another layer of ineffectiveness.
Costa has shown neither cause for nor prejudice from this
second level of procedural default. Cause for procedural default
"must ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule." Carrier, 477 U.S. at
488; see also Reed v. Ross, 468 U.S. 1, 16 (1984). This could
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include a showing that "the factual or legal basis for a claim was
not reasonably available to counsel," Carrier, 477 U.S. at 488, or
that there was "some interference by officials," id. (quoting
Brown v. Allen, 344 U.S. 443, 486 (1953)) (internal quotation marks
omitted). Costa argues that his attorneys simply did not recognize
that an amenability argument could be made on the basis of
Storella's inconsistent testimony. However, that counsel simply
"failed to recognize the factual or legal basis for a claim" does
not in and of itself "constitute cause for a procedural default."
Gunter, 291 F.3d at 82 n.2 (quoting Carrier, 477 U.S. at 486)
(internal quotation mark omitted).
The factual basis for the amenability claim was known or
knowable by the time of Costa's second trial and appeal. At that
point, Storella had given multiple inconsistent accounts of the two
murders. As a result, claims based on these inconsistencies were
reasonably available at trial and on direct appeal: indeed,
Storella's inconsistent testimony was the basis of Costa's probable
cause attack. Finally, Costa has not and cannot make the argument
that state officials or some other external factor interfered or
made compliance with the state rule "impracticable." Coleman, 501
U.S. at 753 (quoting Carrier, 477 U.S. at 488).
In addition to failing to show cause, Costa is unable to
show prejudice, the second showing he must meet to avoid the
independent and adequate state grounds doctrine. Id. at 750. To
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show prejudice, Costa must demonstrate "not merely that the errors
. . . created a possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions." Carrier, 477 U.S. at 494
(quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Costa
is unable to make this showing.
As the SJC found in DiBenedetto II, and as the Single
Justice noted in his decision, although Storella changed the
particulars of his testimony as to Costa's role in the murders, he
"never wavered" from the critical point that Costa was one of the
killers. 693 N.E.2d at 1014. Costa argues nonetheless that
Storella's embellished depiction of Costa's conduct during the two
murders was critical to the juvenile court's non-amenability
finding. However, the Single Justice noted in his decision,
"Storella's testimony played but a minor role" in the juvenile
court's non-amenability finding, constituting "just one sentence"
in eight pages of findings. There was no prejudice. That ends the
matter.
We are barred from reviewing the state court's decision
because it rests on an independent and adequate state ground. The
denial of the petition is affirmed.
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