Rosenthal v. O'Brien

United States Court of Appeals
For the First Circuit

No. 11-2210

RICHARD ROSENTHAL,

Petitioner, Appellant,

v.

STEVE O'BRIEN,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Stahl and Lipez,
Circuit Judges.

John H. Cunha, Jr. for petitioner.
Annette C. Benedetto, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General of
Massachusetts, was on brief, for respondent.

April 15, 2013
 HOWARD, Circuit Judge. Richard Rosenthal appeals the

denial of his 28 U.S.C. § 2254 petition. His habeas petition,

challenging his Massachusetts murder conviction, claimed that the

state courts violated his constitutional rights in denying his

motion for a new trial. For the reasons given below, we affirm the

district court's order.

I. Factual Background

The district court issued a forty-page memorandum and

order denying Rosenthal's habeas petition. Rosenthal v. O'Brien,

814 F. Supp. 2d 39 (D. Mass 2011). This order ably recounts the

history surrounding Rosenthal's murder conviction. We summarize

only the facts pertinent to this appeal.

On August 28, 1995, Rosenthal killed his wife by beating

her in the face with a rock before cutting her open, removing her

organs, and placing them on a stake in their backyard. Later that

evening, he told police that he had done a "terrible thing," which

led to the discovery of her body and his arrest.

Rosenthal's arraignment occurred the next day in

Framingham District Court. At that time, Dr. Priscilla Hoffnung

conducted an initial examination of Rosenthal to ascertain his

mental competency. She determined that Rosenthal had a knowledge

of the legal system, including possible penalties, various court

procedures, affirmative defenses, and the attorney-client

relationship. She also concluded, however, that "while appearing

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generally competent, there were some observations that raised

doubts," including his failure to grasp that his wife had died.

Consequently, the arraigning judge ordered Rosenthal's commitment

to Bridgewater State Hospital for a full competency evaluation

pursuant to Massachusetts General Laws chapter 123, section 15(b).

Dr. Joel Haycock attempted to perform this examination, but

Rosenthal, acting under the advice of his attorney Norman Zalkind,

declined to participate. Dr. Haycock offered the court no opinion

as to Rosenthal's competency.

Although Rosenthal did not undergo a subsequent

competency evaluation, he did speak with numerous mental health

examiners. Reports by those professionals provided evidence of

both Rosenthal's mental lucidity and some dysfunctional behavior.

In follow-up examinations, Dr. Haycock reported that Rosenthal

spoke in goal-directed sentences and displayed no evidence of major

psychological symptomatology. Other doctors, however, noted

increasing suicidality and bizarre, oppositional, and threatening

behavior. In April 1996, Rosenthal was again committed to

Bridgewater, where a Dr. DiCataldo evaluated him. Dr. DiCataldo

considered Rosenthal's responses "well-measured and succint . . .

[and] devoid of spontaneity and elaboration," but he also found

that Rosenthal was suspicious about the identity of his parents and

other family members.

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 Rosenthal's attorneys also sought a medical opinion about

Rosenthal's mental state to explore the possibility of an insanity

defense.1 They retained Dr. Marc Whaley to carry out the

examinations. During the course of these evaluations, Zalkind

raised concerns with Dr. Whaley about Rosenthal's competency after

Rosenthal had exhibited unusual behavior at a court hearing.2 Dr.

Whaley stated:

However, the next time I met with Mr.
Rosenthal [after learning of Zalkind's
concerns], he appeared the same as he had been
previously. He was able to answer questions
and interact with me in an appropriate fashion
so I never performed the formal competency
evaluation. I did not specifically ask him
about his understanding of the trial, the
charges against him, or the function of the
various roles of the courtroom participants,
in that his mental functions at the time
seemed to be grossly intact . . . .

The motion judge noted that Rosenthal's delusional and erratic

behavior increased after he filed notice that he would assert a

defense of lack of criminal responsibility.

The case proceeded to trial, about two weeks into which

Rosenthal began growling and making other strange noises. He also

1
Massachusetts uses the Model Penal Code's definition of
insanity, which asks whether, as a result of a mental disease or
defect, the defendant "lacks substantial capacity either to
appreciate the criminality (wrongfulness) of his conduct or to
conform his conduct to the requirements of law." Commonwealth v.
McHoul, 226 N.E.2d 556, 558 (Mass. 1967) (quotations omitted).
2
Rosenthal had attempted to apologize to the court for
bringing on the air strikes in Bosnia.

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informed Zalkind that he wished to testify. Zalkind alerted the

court of this unusual behavior and asked for a short recess to

speak with his client. After the recess, Zalkind informed the

court that Rosenthal would not testify and that Zalkind was

satisfied about his competency. Zalkind did not want Rosenthal to

address the court at all -- not even regarding his waiver of the

right to testify -- and the court honored that wish. The

prosecutor asked the court to inquire into Rosenthal's competency,

to which Zalkind responded:

We feel satisfied that he's competent to stand
trial. I can't tell you anything more than
that. Sure, there's always some doubts when a
man is as sick as he is, and he's a very sick
man, and there are a lot of pressures that a
trial brings out that you don't have in more
regular times, but I wouldn't have gone
forward trying this case unless I felt he was
competent. Am I a hundred percent sure? No.
I am not a hundred percent sure. Do I think
that he should be evaluated for competency?
No. I don't think it's in his best interest.

The court did not conduct a competency examination.

In his closing statement, Zalkind emphasized Rosenthal's

delusional understanding of reality to the jury in the following

terms: "Ladies and gentlemen, again and again afterwards when

[Rosenthal] sees his brother and he sees his family he's

delusional. He doesn't think I'm me. He asked Dr. Whaley for his

license ID. He doesn't think his parents are his parents." The

jury did not accept Rosenthal's insanity defense and convicted him

of first degree murder based on extreme atrocity or cruelty.

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 On plenary review, the Massachusetts Supreme Judicial

Court ("SJC") affirmed. Commonwealth v. Rosenthal, 732 N.E.2d 278

(Mass. 2000). Subsequently, Rosenthal brought three successive

motions for a new trial on grounds not raised in his direct appeal

pursuant to Rule 30(b) of the Massachusetts Rules of Criminal

Procedure. The third motion, which superseded the previous two,

addressed four issues: 1) the trial court's failure to hold a

competency hearing sua sponte; 2) the trial court's failure to

inquire into Rosenthal's decision not to testify; 3) the trial

court's decision not to hold a hearing about the voluntariness of

his statements to police; and 4) ineffective assistance of trial

counsel.

The motion judge denied this motion for a new trial in a

31-page memorandum and order. Mem. Decision & Order Def.'s Mot.

For New Trial, Commonwealth v. Rosenthal, No. 95–01775 (Mass.

Super. Ct. July 24, 2009). This order addressed the four issues

raised in Rosenthal's third motion, as well as briefly mentioning

a previously abandoned claim of ineffective assistance of appellate

counsel. Rosenthal then filed a motion to reconsider along with a

fourth motion for a new trial. The motion judge denied the motion

to reconsider and did not rule on the fourth motion. A single

"gatekeeper" SJC justice denied Rosenthal's petition for leave to

appeal. See Mass. Gen. Law ch. 278, § 33E (barring further SJC

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review unless a single justice finds that the appeal raises "new

and substantial" questions of law).

Thereafter, Rosenthal initiated his habeas corpus

petition, which challenged the following conclusions by the motion

judge: 1) that the trial court did not need to hold a competency

hearing sua sponte; 2) that trial counsel was not constitutionally

deficient for not seeking a competency examination; 3) that the

trial court did not need to inquire into Rosenthal's waiver of his

right to testify; 4) that trial counsel was not constitutionally

deficient for persuading Rosenthal not to testify; 5) that trial

counsel was not constitutionally deficient for failing to suppress

statements made to the police without a Miranda warning; and 6)

that Rosenthal's appellate counsel was not constitutionally

deficient for failing to raise certain issues on appeal. The

district court denied Rosenthal's petition, but certified all

issues for appellate review. All except the Miranda issue have

been raised here.

II. Discussion

A. Standard of Review

"We review the district court's denial of habeas relief

de novo." Yeboah-Sefah v. Ficco, 556 F.3d 53, 65 (1st Cir. 2009)

(quotations omitted). In order to obtain habeas relief from state

custody, a petitioner must show that the state court's decision

"was contrary to, or involved an unreasonable application of,

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clearly established Federal law, as determined by the Supreme

Court." 28 U.S.C. § 2254(d)(1). A state court's ruling is

contrary to federal law either when it adopts a rule that

"contradicts the governing law set forth in the Supreme Court's

cases" or when it reaches a different result from a Supreme Court

decision under "a set of facts that are materially

indistinguishable." John v. Russo, 561 F.3d 88, 96 (1st Cir.

2009). Even if the state court correctly identifies the law, it

may unreasonably apply the law to the facts of the case. To be

unreasonable, however, the application of federal law must be "more

than incorrect or erroneous." Yeboah-Sefah, 556 F.3d at 65 (citing

Williams v. Taylor, 529 U.S. 362, 411 (2000)). In other words,

"some increment of incorrectness beyond error is required." Morgan

v. Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012) (quotations and

citations omitted). Finally, we only overturn state court factual

determinations that are unreasonable in light of the record. 28

U.S.C. § 2254(d)(2).

B. Procedural Default

Counsel for Massachusetts belatedly invokes procedural

default as a bar to Rosenthal's petition. A habeas claim is

procedurally defaulted where a state court has declined to review

the claim because of the petitioner's failure to comply with state

procedural requirements, providing an adequate and independent

state-law ground for denying relief. See Costa v. Hall, 673 F.3d

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16, 23 (1st Cir. 2012). Procedural default does not implicate our

jurisdiction. Instead, it "is grounded in concerns of comity and

federalism." Coleman v. Thompson, 501 U.S. 722, 730 (1991)

(contrasting habeas review with direct appellate review of a state

court judgment). Thus, a habeas respondent may waive the defense,

and we are not obligated to address it sua sponte. See Trest v.

Cain, 522 U.S. 87, 89 (1997) ("procedural default is normally a

defense that the State is obligated to raise and preserv[e] if it

is not to lose the right to assert the defense thereafter.

(internal quotation marks omitted)).

In this case, a defense of procedural default was freely

available to the Commonwealth. In Mendes v. Brady, 656 F.3d 126

(1st Cir. 2011), we held that the gatekeeper provision of Section

33E constitutes an adequate and independent state procedural ground

for denying relief. Id. at 129. The SJC denied Rosenthal's

petition for appeal because he failed to raise any of the issues in

his motion for new trial on direct appeal. However, the

Commonwealth did not invoke this defense in responding to

Rosenthal's habeas petition. While its answer included a pro forma

reference to "adequate and independent" state grounds, the

Commonwealth concedes that it failed to present this defense to the

district court. Instead, it asks us to exercise our discretionary

authority to address the issue sua sponte. See, e.g., Pike v.

Guarino, 492 F.3d 61, 73 (1st Cir. 2007) ("We assume that, as a

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matter of discretion, we may consider the Commonwealth's belated

assertion of the defense of procedural default."); Brewster v.

Marshall, 119 F.3d 993, 999 (1st Cir. 1997) (noting that federal

courts have the authority to consider procedural default sua

sponte).

We choose not to do so. Our overriding concern when

deciding whether to address procedural default is that "the

interests of comity and federalism will be [best] served."

Granberry v. Greer, 481 U.S. 129, 134 (1987). In this case, our

review of the merits will not unnecessarily infringe on the

Commonwealth's courts. Indeed, we affirm the motion judge's order

as a reasonable interpretation of federal law. Thus, the risks of

upsetting the state-federal balance are slight in this case. We

therefore turn to the merits of Rosenthal's appeal.

C. Claims Relating to Rosenthal's Competency

Rosenthal challenges the motion judge's rulings on two

competency-related issues: 1) whether the trial court should have

held a competency hearing sua sponte; and 2) whether Zalkind's

decision not to seek a competency examination constituted

ineffective assistance of counsel.

1. Failure to Hold a Competency Hearing Sua Sponte

"It is well established that the Due Process Clause of

the Fourteenth Amendment prohibits the criminal prosecution of a

defendant who is not competent to stand trial." Medina v.

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California, 505 U.S. 437, 439 (1992). Moreover, a court must hold

a competency hearing sua sponte whenever there is "sufficient

doubt" regarding the defendant's competence. See Johnson v.

Norton, 249 F.3d 20, 26 (1st Cir. 2001). Rosenthal's appeal

focuses on whether the motion judge's determination that the trial

court's decision not to hold a competency hearing was reasonable.3

We agree with the district court that the motion judge's

decision was neither contrary to, nor an unreasonable application

of, federal law.4 The motion judge, relying on the state case of

Commonwealth v. Hill, 375 N.E.2d 1168 (Mass. 1978), correctly

identified the controlling law. See id. at 1175 (holding that a

court must hold a competency hearing where there is a "substantial

question of possible doubt" (quotations omitted)); cf. Johnson, 249

F.3d at 26 n.4 (noting that courts have used many similar phrases

"to describe the precise quantum of doubt necessary to prompt a

competency hearing"). In applying that standard, "evidence of a

3
Rosenthal's reply brief challenges, for the first time, the
trial court's finding of competency. Because he did not present
this claim in his initial brief, we will not review it. See United
States v. Edgar, 82 F.3d 499, 510 (1st Cir. 1996).
4
A finding of competency is treated as a purely factual
matter. See Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per
curiam) (citing Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per
curiam)); see also Companonio v. O'Brien, 672 F.3d 101, 110 (1st
Cir. 2012) (treating a state court's finding of competency as a
factual matter). We review the decision not to hold a competency
hearing, however, as either a legal question or a mixed question of
law and fact under 28 U.S.C. § 2254(d)(1). See Johnson v. Norton,
249 F.3d 20, 25-26 (1st Cir. 2001).

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defendant's irrational behavior, his demeanor at trial, and any

prior medical opinion on competence to stand trial are all relevant

in determining whether further inquiry is required." Drope v.

Missouri, 420 U.S. 162, 180 (1975).

The motion judge had a broad array of evidence before

her: pre-trial mental examinations, Rosenthal's actions both in

court and in confinement, the trial record, and post-trial

affidavits and reports. In evaluating this evidence, the motion

judge focused on the legal requirements for competency -- that a

defendant has "sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding . . .

[and] a rational as well as a factual understanding of the

proceedings against him." Dusky v. United States, 362 U.S. 402,

402 (1960) (per curiam). The pre-trial mental examinations and

Zalkind's colloquies both demonstrate Rosenthal's understanding of

the trial process. The motion judge also gave weight to the trial

court's decision not to hold a hearing because the trial judge had

the opportunity to observe Rosenthal's behavior during the lengthy

trial. Similarly, neither Rosenthal's trial counsel nor his

appellate counsel offered affidavits declaring that they believed

Rosenthal was incompetent, which the motion judge found

significant. The evidence was not one-sided, but it was not

unreasonable for the motion judge to conclude that it did not raise

a substantial doubt regarding Rosenthal's competency.

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 On appeal, Rosenthal makes two arguments. First, he

claims that the motion judge erred by ignoring post-trial reports

of his mental illness. Rosenthal has not provided these reports on

appeal. Therefore, we find it difficult to assess their relevance

to the question of his competency at trial. Moreover, given the

scope of the motion judge's review, it was reasonable for her to

focus on evidence that the trial court could have considered. The

motion judge was not determining whether Rosenthal was competent.

Instead, she was only reviewing whether the trial court should have

held a competency hearing. Thus, Rosenthal needed to show that

"objective facts known to the trial court were sufficient to raise

a bona fide doubt." Medina v. Singletary, 59 F.3d 1095, 1106 (11th

Cir. 1995) (internal quotation marks omitted) (emphasis added).

While post-trial mental reports and affidavits, especially those

close in time to the trial, have value in assessing Rosenthal's

competency at trial, they are of limited value in answering whether

the evidence before the trial judge required him to hold a

competency hearing sua sponte.

Rosenthal also claims that the facts of his conviction

are materially indistinguishable from those in Drope, in which the

Supreme Court held that a trial court's failure to hold a

competency hearing denied the defendant his due process rights.

Drope, 420 U.S. at 179-80. In that case, however, the defendant’s

attorney had requested a competency hearing at the outset of the

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trial and then twice moved for a mistrial after Drope was

hospitalized following a suicide attempt. Id. at 164-67. By

contrast, Zalkind considered Rosenthal competent to stand trial and

at no time requested that the court examine Rosenthal's competency.

These differences foreclose Rosenthal's claim that the facts of the

two cases are materially indistinguishable.

2. Ineffective Assistance of Trial Counsel

A defendant is denied his Sixth Amendment right to

effective counsel where the trial counsel's performance is

deficient and results in prejudice to the defendant. See

Companonio v. O'Brien, 672 F.3d 101, 110 (1st Cir. 2012) (citing

Harrington v. Richter, 131 S. Ct. 770, 787 (2011)). An attorney's

performance is deficient when it falls below "an objective standard

of reasonableness." Strickland v. Washington, 466 U.S. 668, 688

(1984). We "indulge a strong presumption" that an attorney's

decisions "might be considered sound trial strategy." Id. at 689

(quotations omitted).

Nonetheless, counsel may not strategically ignore the

question of competency. Instead, if "there are substantial

indications that the defendant is not competent to stand trial,"

the need to seek a competency hearing is a "settled obligation."

Robidoux v. O'Brien, 643 F.3d 334, 338 (1st Cir. 2011). Thus, if

Rosenthal's counsel harbored substantial doubts regarding

competency, he had a duty to seek a competency hearing. The motion

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judge, however, reasonably concluded that Zalkind had no

substantial reason to doubt Rosenthal's competency.

As the judge noted, Zalkind was clearly attuned to the

possibility of incompetency throughout his representation. After

Rosenthal attempted to offer an irrational statement in court,

Zalkind raised the issue of competency with Dr. Whaley. Although

Dr. Whaley did not conduct a formal competency examination, his

subsequent report indicated that Rosenthal could satisfactorily

participate in his own defense. Moreover, midway through

Rosenthal's trial, Zalkind requested the opportunity to speak with

his client regarding his competency, as a result of his bizarre

behavior that day. Rather than ignore or conceal Rosenthal's

possible incompetency, Zalkind immediately sought to investigate

the matter at greater length. After speaking with his client,

Zalkind informed the trial court that he was satisfied about

competency. He admitted that he was not "one hundred percent sure"

of Rosenthal's competency but stated that he would not have tried

the case if he believed that his client was incompetent. Zalkind

showed awareness of the issue at several stages of the proceedings

and reassured the trial court that he believed Rosenthal was

competent. Moreover, his honest expression of doubt is not enough

to render the motion judge's determination unreasonable. Zalkind

was only obligated to request a competency hearing if the

indications were substantial. The motion judge could have

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interpreted his statement -- "there's always some doubts when a man

is as sick as he is" -- as articulating doubts below that standard.

Rosenthal makes much of Zalkind's closing arguments --

especially the statement "[Rosenthal] doesn't think I'm me" -- to

show that Zalkind should have doubted Rosenthal's "ability to

consult with his lawyer with a reasonable degree of rational

understanding." Dusky, 362 U.S. at 402. He claims that an

inability to identify his attorney made it impossible, or at least

highly unlikely, that he could consult with his attorney in a

meaningful way. While Rosenthal's delusions regarding the identity

of others, particularly his attorney, are relevant to his

competency to stand trial, Zalkind's statement is but one piece in

a mosaic of evidence regarding Rosenthal's mental state. It is not

sufficient to render the motion judge's decision unreasonable where

ample evidence indicated that Rosenthal could consult with his

attorneys and follow their advice.

The motion judge also reasonably determined that Zalkind

was not deficient for advising his client against participating in

competency examinations on two occasions: first, when Dr. Haycock

attempted to evaluate Rosenthal's competency pursuant to the

arraigning judge's order; second, at trial when Zalkind requested

that the court not inquire into Rosenthal's capacity. "[S]trategic

choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable . . . ."

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Strickland, 466 U.S. at 690. The evidence demonstrates Zalkind's

awareness of the facts bearing on Rosenthal's competency.

Moreover, Zalkind correctly believed that a competency hearing

could be used against Rosenthal on the issue of his mental

condition in a future trial. See Mass. Gen. Laws ch. 233, § 23B.

Zalkind had a firm understanding of the relevant law and facts on

this issue. Thus, the motion judge reasonably deferred to his

strategic decision to forego a competency evaluation.

D. Claims Relating to Rosenthal's Waiver of the Right to
Testify

Rosenthal claims that both the trial court and his trial

counsel abridged his right to testify in his own behalf, and he

challenges the motion judge's contrary conclusion. We see nothing

unreasonable about the motion judge's determination.

A criminal defendant has a constitutional right to

testify in his own defense. See Rock v. Arkansas, 483 U.S. 44, 50-

52 (1987). Counsel, acting alone, cannot waive this right on

behalf of the defendant. Owens v. United States, 483 F.3d 48, 58

(1st Cir. 2007) (citing United States v. Mullins, 315 F.3d 449, 454

(5th Cir. 2002)). Moreover, silence alone does not imply a waiver;

there must be "something in the record suggesting a knowing

waiver." Chang v. United States, 250 F.3d 79, 84 (2d Cir. 2001).

The responsibility to inform a defendant of this right rests with

his lawyer, and a trial court need not apprise the defendant nor

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make an independent inquiry into the waiver. See Owens, 483 F.3d

at 58; Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987).

1. Trial Court's Failure to Inquire into Waiver

The motion judge reasonably concluded that the trial

court did not need to inquire into Rosenthal's waiver of his right

to testify. In this case, the trial court gave Zalkind a short

recess to determine whether Rosenthal would testify and it accepted

Zalkind's assertion that Rosenthal waived that right. It had no

obligation to ensure the validity of that assertion. Owens, 483

F.3d at 58. Moreover, it had no reason to suspect that Rosenthal's

waiver was involuntary, unknowing or coerced. See United States v.

Sys. Architects, Inc., 757 F.2d 373, 375-76 (1st Cir. 1985)

(holding that no inquiry was necessary where the record contained

no facts that "would alert the court to a disagreement between

attorney and clients regarding whether they should take the

stand"). Therefore, Rosenthal's claim that the trial court needed

to inquire into the validity of his waiver fails.

2. Ineffective Assistance of Counsel

Rosenthal presents two theories of how Zalkind

unconstitutionally denied him his right to testify. First,

Rosenthal argues that Zalkind coerced him into waiving his right to

testify. In an affidavit that he presented to the motion judge,

Rosenthal claims that, during the recess, Zalkind threatened to

keep him in a holding cell unless he agreed not to testify. The

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motion judge did not accept this account. Absent any other

evidence corroborating this narrative, the motion judge reasonably

discredited Rosenthal's account, and we will defer to her factual

findings.

Rosenthal's other argument is no more than a second

attempt to litigate his competency claim. Rosenthal contends that

substantial doubts regarding his competency made it impossible for

him to waive his right to testify knowingly, and that Zalkind

should have recognized this problem. Our prior analysis of

Rosenthal's competency claims shuts the door on this line of

reasoning.

We do not see how Zalkind deprived Rosenthal of his right

to testify. If anything, by bringing the matter to the attention

of the court, Zalkind decreased the likelihood of involuntary

waiver. See Chang, 250 F.3d at 84 ("[S]ilence alone cannot support

the inference of [a knowing] waiver."). He requested a recess to

discuss Rosenthal's request to testify and then informed the trial

court that Rosenthal would not testify. Zalkind's ability to

persuade Rosenthal not to testify was not a violation of

Rosenthal's rights; counsel was instead fulfilling his obligation

to pursue what he considered the best trial strategy. See

Siciliano, 834 F.2d at 31 (concluding that a defendant's strategic

decision not to testify, "at the strong urging of counsel," was not

a constitutional violation).

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E. Ineffective Assistance of Appellate Counsel

Although Rosenthal had raised the issue of ineffective

appellate counsel in his second motion for a new trial, he dropped

the issue from his third motion. Consequently, the motion judge

only made passing reference to this particular claim in the order.

Rosenthal then filed a motion for reconsideration, in which he

asked the motion judge to resolve the issue of ineffective

appellate counsel definitively. The motion judge denied the

motion.

Before the district court, on this issue the Commonwealth

argued that Rosenthal failed to exhaust his state remedies as

required by 28 U.S.C. § 2254(b)(1)(A). A petitioner has exhausted

state remedies when his claim is "fairly present[ed]" to the state

courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004). The district

court determined that Rosenthal had fairly presented his claim of

ineffective appellate counsel, relying on the cases of Gagne v.

Fair, 385 F.2d 4, 7 (1st Cir. 1987) (holding that a claim is fairly

presented when, inter alia, the state court is likely alerted to

the claim's federal nature), and Nadworny v. Fair, 872 F.2d 1093,

1099-1100 (1st Cir. 1989) (holding that a claim is fairly presented

when a state law assertion is functionally identical to a federal

claim). The district court reasoned that the claim of ineffective

appellate counsel was merely a variation of Rosenthal's ineffective

assistance of trial counsel claim. Moreover, the district court

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took note of the motion judge's statement that Rosenthal "was

represented by competent experienced counsel at trial and on

appeal," which indicated that Rosenthal had adequately alerted the

court to this issue.

The district court then proceeded to resolve the claim on

the merits. It held that Rosenthal had not shown ineffective

assistance of appellate counsel for failing to raise the issues of

competency, waiver of his right to testify, and ineffective

assistance of trial counsel on appeal. It further held that

Rosenthal was not prejudiced by his appellate counsel's decision,

because none of these possible arguments were meritorious. On

appeal, the Commonwealth, while maintaining Rosenthal's failure to

exhaust state remedies, has conceded that "the goal of judicial

economy may better be served if the merits of the claim are

addressed."

We agree. The district court's order dealt with this

issue comprehensively. On de novo review, we adopt its legal

analysis and have nothing to add. Rosenthal's claim of ineffective

assistance of appellate counsel fails.

III. Conclusion

For the foregoing reasons, we affirm the district court's

order.

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