Castillo v. Matesanz

United States Court of Appeals
For the First Circuit

No. 01-2166

JUAN CASTILLO,

Petitioner, Appellant,

v.

JAMES MATESANZ,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,
and Ponsor, District Judge.*

Amy Baron-Evans, with whom Dwyer & Collora were on brief, for
petitioner.
James J. Arguin, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for respondent.

October 22, 2003

_____________________

* Of the United States District Court for the District of
Massachusetts, sitting by designation.
 LIPEZ, Circuit Judge. This petition for habeas corpus

seeks relief from the denial of petitioner's motion for a new trial

in the state court. In pursuing a new trial, petitioner argued

that (1) the trial court's denial of defense counsel's motion for

a continuance at the beginning of the trial was "so arbitrary as to

violate due process," and (2) defense counsel's subsequent conduct

at trial violated the petitioner's Sixth Amendment right to

counsel. In asserting those arguments here, petitioner contends

that the state courts' denial of his motion for a new trial was

contrary to, and an unreasonable application of, clearly

established federal law. Unpersuaded, we affirm the decision of

the district court denying the petition for habeas corpus relief.

I.

On September 27, 1996, petitioner, Juan Castillo

("Castillo"), was convicted by a jury in the Massachusetts Superior

Court of trafficking in a controlled substance (cocaine), and was

sentenced to a mandatory minimum sentence of fifteen years.

Castillo appealed his conviction to the Massachusetts Appeals

Court. On April 15, 1998, Castillo filed a motion in the Superior

Court for a new trial arguing that (1) the trial court abused its

discretion in denying defense counsel Christine Fernandez

("Fernandez") a continuance, and (2) that Fernandez's lack of

knowledge of the law, failure to interview or prepare Castillo,

mischaracterization of Castillo's testimony in closing argument,

-2-
and failure to call relevant witnesses was ineffective assistance

of counsel under the Massachusetts Declaration of Rights and the

Sixth Amendment. By an order entered June 15, 1998, the trial

judge denied the motion without discovery or an evidentiary

hearing, finding that no continuance was necessary because the

filing of counsel's appearance was a representation that she was

"ready, willing, and able" to try the case, and that her

performance was not ineffective. Commonwealth v. Castillo, No.

9477 CR 3461 (Mass. Superior Ct. June 15, 1998)(order denying

defendant's motion for new trial). Castillo's appeal from this

order was consolidated with his direct appeal. On June 8, 1999,

the Appeals Court summarily affirmed Castillo's conviction and the

denial of his new trial motion "substantially for those reasons set

out in the trial judge's memorandum of decision." Commonwealth v.

Castillo, No. 97-P-1937 (Mass. App. Ct. June 8, 1999)(mem. & order

affirming defendant's conviction and denial of motion for a new

trial). The Supreme Judicial Court of Massachusetts denied further

appellate review. Commonwealth v. Castillo, No. FAR-10783 (Mass.

Sept. 27, 1999)(notice of denial of further appellate review).

On September 11, 2000, Castillo petitioned the federal

district court for habeas corpus relief under 28 U.S.C. § 2254,

claiming that the state court's rejection of his two new trial

claims -- a due process violation in denying the continuance and

ineffective assistance of counsel -- warranted habeas relief. On

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March 22, 2001, the district court referred the petition to a

United States magistrate judge for a recommended disposition. On

July 6, 2001, the magistrate judge issued a thorough Report and

Recommendation recommending that the petition be dismissed. On

July 17, Castillo timely objected to three factual determinations

contained in the report.1 By an order dated July 27, 2001, the

district court rejected Castillo's objections and adopted the

report in its entirety.2 On August 1, 2002, the district court

1
The Report and Recommendation of the magistrate judge
contained a clear notice that "any party who objects to these
proposed findings and recommendations must file a written objection
thereto . . . within 10 days. . . . [F]ailure to comply with this
rule shall preclude further appellate review." Castillo v.
Matesanz, No. 00-11854 (D. Mass. July 6, 2001) (Report and
Recommendation of United States magistrate judge). Despite this
clear warning, Castillo made limited objections to the magistrate
judge's report. Respondent rightly argues that "none of the
proposed factual findings [to which petitioner objected], even if
erroneous, provides a basis for habeas relief. The remaining
aspects of petitioner's appeal comprise matters to which no
objection was made and, therefore, are waived and not properly
before this Court." In most circumstances we would enforce this
important rule of waiver. See Keating v. Sec'y of Health and Human
Servs., 848 F.2d 271 (1st Cir. 1988) ("[O]nly those issues fairly
raised by the objections to the magistrate's report are subject to
review in the district court and those not preserved by such
objection are precluded on appeal."). However, this rule is
procedural, not jurisdictional. Thomas v. Arn, 474 U.S. 140, 146
(1985). Strictly applied here, this rule would mean that we would
not be addressing the merits of any of Castillo's arguments on
appeal, and there might be further claims of ineffective assistance
of counsel in these post-conviction proceedings. In the interest
of finality, therefore, we proceed to affirm on the merits the
district court's denial of habeas relief.
2
Because the district court accepted and adopted the
detailed Report and Recommendation of the magistrate judge, we do
not distinguish between the two judicial officers in the interest
of simplicity. Rather, for the duration of the opinion, we refer

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explained its decision to grant Castillo a certificate of

appealability. "While a strong case has been made that counsel's

performance fell below an objective standard of reasonableness

because of her utter lack of preparation, I agreed (and still

agree) with the magistrate judge that petitioner has not shown that

prejudice resulted. Nonetheless, habeas appellate counsel has

valiantly made enough of a showing to persuade me that an appeal is

appropriate." Castillo v. Matesanz, No. 00-11854-PBS (August 1,

2002) (certificate of appealability).

II.

We first give a brief summary of the circumstances of the

offense and some pretrial history. We then recount the facts

relevant to the request for a continuance and the ineffective

assistance of counsel claims.

A. The Offense and Some Pretrial History

At about 8 p.m. on October 30, 1994, two police officers

for the city of Lynn received a radio report of a disturbance at

102 Cottage Street. Upon arrival, the residents of the first floor

apartment let the officers into the three-unit building and

directed them upstairs. The officers proceeded to the second

floor, which was empty and unlit, where they heard footsteps coming

from the third floor. Officer Griffin proceeded to the third floor

apartment and knocked on the door, identifying himself as

to the determinations below as those of the district court.

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"policia." Officer Hogan went up the back stairs to the third

floor, where he heard the back door unlock and saw Castillo begin

to emerge from the doorway. Castillo then turned and went back

into the apartment. Officer Hogan entered through the back door,

saw a second man in the apartment's bathroom holding a plastic bag

containing a white substance, and heard the toilet flushing. The

officer then saw a third man in the kitchen making a throwing

gesture towards the window. On the ground beneath the kitchen

window, the police later recovered two clear plastic bags

containing approximately 169 grams of cocaine. Castillo and a

fourth man were standing next to the kitchen table, on which

Officer Hogan observed a partially open brown paper bag containing

several plastic sandwich bags filled with a white powder, and two

digital scales. Castillo was never seen in physical custody of any

controlled substance. The officers arrested Castillo and brought

him to the police station, where officers found a beeper and $467

in cash on his person.

On December 14, 1994, a Massachusetts grand jury indicted

Castillo for trafficking in 200 grams or more of cocaine, and

conspiracy to violate the Controlled Substances Act. Mass. Gen.

Laws Ann. ch. 94c, §§ 32E, 40 (2003). At Castillo's arraignment on

January 11, 1995, attorney Kirk Bransfield was appointed to

represent him. After deciding a variety of pretrial motions and

after a number of continuances, the trial court scheduled the

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beginning of trial for December 13, 1995.3 Castillo failed to

appear on December 13, and an arrest warrant issued. Approximately

six months later, Castillo was arrested at a New York airport and

remanded to Massachusetts for trial. Trial was scheduled to begin

on September 23, 1996.

B. Attorney Fernandez's Appearance

On August 5, 1996, Christine Fernandez, an attorney with

the New York law firm of Aranda & Guttlein, filed a motion to

appear pro hac vice in this matter. On the same day, attorney

Andres M. Aranda, a partner of the Aranda & Guttlein law firm, also

moved to appear pro hac vice but his motion was not docketed or

acted upon by the court. In an affidavit filed in support of her

motion, Fernandez stated that she had been a member in good

standing of the New York bar since 1996 and that she "specialize[d]

in criminal and federal law." On September 9, Fernandez appeared

in person before a Superior Court judge, who allowed the motion to

appear pro hac vice on the express "condition that the trial date

of September 23, 1996 remain the scheduled trial date and that the

allowance of this motion not delay the trial." On that same day,

Fernandez filed a notice of appearance, and attorney Bransfield,

the court-appointed counsel, withdrew.

3
Although all of the men present in the apartment on the
night in question were arrested, Castillo was tried alone.

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 On September 12, 1996, attorney Jorge Guttlein

("Guttlein"), another partner of the Aranda & Guttlein law firm,

sent a letter to the court together with an undated motion to

appear pro hac vice. In the letter, Guttlein acknowledged that

Castillo's trial was scheduled for September 23, 1996, but

requested that trial be continued until October 17 because he had

a scheduling conflict. The trial court treated this letter as a

motion for a continuance, which it denied. Castillo's case was

subsequently transferred from Essex Superior Court to Lawrence

Superior Court for trial on September 24, 1996. Guttlein appeared

before the Lawrence Superior Court on September 24, 1996, and his

motion to appear pro hac vice was allowed that day. Castillo's

case was not called for trial that day but was continued to the

next morning.

Fernandez appeared in court the next morning and informed

the judge that Guttlein had been "called back to New York late

yesterday afternoon because his wife was ill." Fernandez stated

that she was appearing on Castillo's behalf and that she had

reviewed all the pretrial motions and was prepared to argue them,

but that she had a "series of requests" regarding her "late entry

into the case this morning." She sought a further delay in the

trial:

I arrived in Massachusetts last night at about
four a.m. because the roads were awful with
the rain and everything else. I have had very
little opportunity to review this file. I

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 understand that we're scheduled to go forward,
and I'm prepared to at least go forward with
jury selection. However, I would ask your
Honor please not to go forward with any
testimony until I've had an opportunity to
further review this file.

The trial judge responded that Fernandez's motion to appear was

allowed several weeks ago "with the specific condition that it not

delay the trial." Fernandez argued that at the time she was

admitted to appear pro hac vice, she "was not under the impression

that [she] would be trying this case" since Guttlein has been

"slotted to try this case." The judge replied:

[Y]our firm was on notice that whoever was
going to try this case was going to be
prepared for it. And the Court doesn't look
behind appearances when you have two or three
people, all of whom are on there. Everyone is
presumed to be ready, willing and able to try
the case.

However, the judge stated that he did not know how far they would

get that day, although it seemed likely they would get through

impanelment and opening statements. He deferred ruling on the

request to delay any testimony until later in the day. After

impanelment and opening statements, the judge recessed the

proceedings for an hour and a half, stating that the Commonwealth

would call its first witness following the recess and Fernandez

would be called on to cross-examine the witness. Although this

statement implicitly denied the request for a one-day delay of

testimony, Fernandez did not voice any further objections to the

schedule.

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C. Castillo's Trial Strategy

Castillo was charged with trafficking in a controlled

substance, an offense with the following elements: (1) knowing or

intentional possession of a controlled substance, (2) with the

specific intent to distribute the controlled substance, and (3) if

the controlled substance is cocaine (as defined in Mass. Gen. Laws.

Ann. ch. 94C § 31), the controlled substance has a net weight of

fourteen grams or more. Mass. Gen. Laws Ann. ch. 94c, § 32E(b).

The statute sets out escalating penalties for amounts in excess of

the fourteen grams necessary for conviction. Specifically, the

statute sets a mandatory minimum sentence of five years for 28

grams or more but less than 100 grams, and a mandatory minimum

sentence of fifteen years for 200 grams or more. Mass. Gen. Laws

Ann. ch. 94c, § 32E(2), (4). Two lesser included offenses of

trafficking are possession with intent to distribute and simple

possession. To gain a trafficking conviction rather than the

lesser offense of possession with intent to distribute, the

prosecution must establish possession with intent to distribute a

minimum weight of fourteen grams of cocaine. Simple possession is

merely knowing or intentional possession of a controlled substance

-- there is no "intent to distribute" or minimum weight

requirement. Mass. Gen. Laws Ann. ch. 94c, § 34. The sentence for

simple possession is imprisonment for not more than one year.

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 Castillo's trial strategy was to win a not guilty verdict

by defeating the prosecution's proof of the first element of the

trafficking offense: knowing or intentional possession of a

controlled substance. Thus, attorney Fernandez did not contest

that the substance in question found at the apartment was cocaine

and that the amount of the substance was 200 grams or more.

Instead, she argued that Castillo did not know there were any drugs

in the apartment or that the other people in the apartment were

engaged in drug dealing. Castillo was merely present in someone

else's apartment where drugs happened to be found.

The Commonwealth opened its case by calling Officer Hogan

to the stand, who testified to the activities he witnessed in the

apartment. In accordance with her trial strategy, Fernandez

established through her cross-examination of Officer Hogan that he

did not see Castillo handle any of the drugs and that in order to

be able to see the drugs inside the bag on the kitchen table, a

person had to be standing over the bag. She further established

that if Castillo had been sitting at the kitchen table he would not

have been able to see into the bag that was on the table.

The following morning, the Commonwealth called Officer

Griffin, who testified in a manner similar to Officer Hogan about

the events leading to Castillo's arrest and added that at the

police station a beeper and $467 in cash were recovered from

Castillo's person. On cross-examination, Fernandez established

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that not all beepers are used to conduct drug transactions and that

no drugs were ever found in Castillo's possession. The

Commonwealth also called Lieutenant Stevens who testified generally

about the drug trade in Lynn at the time of Castillo's arrest.

At the conclusion of the Commonwealth's case, Fernandez

moved for a judgment of acquittal on the ground that the

Commonwealth's evidence established only Castillo's "mere presence

in an apartment where narcotics" were seized and that this was

insufficient to establish guilt under Massachusetts law. The judge

denied the motion. Fernandez then called Castillo to the stand to

explain the circumstances of his presence in Lynn and to offer his

account of what transpired on the night of his arrest. Castillo

testified that he was a resident of the Bronx, New York, where he

lived with his wife and daughter. He worked in Manhattan

delivering clothes for a weekly income of $260 to $280. He had

come to Lynn to help his former mother-in-law locate his missing

son, and the cash he brought with him was to buy clothes and gifts

for his son. While in Lynn he met Rodriguez, a resident of the

apartment, at a "telephone place" (a business providing inexpensive

long distance telephone service as an alternative to pay phones),

where they spoke on several occasions. On October 30, 1994,

Rodriguez invited Castillo to his apartment at 102 Cottage Street.

After being at the apartment for ten or fifteen minutes, Castillo

testified that he got up to leave and was confronted by a police

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officer as he attempted to exit the back door. Castillo denied

having any knowledge of any drugs in the apartment prior to the

arrival of the police officers.

After the examination of witnesses, the Court reviewed

the jury charge. Fernandez rejected an instruction on simple

possession offered by the trial judge. Although she initially

requested a joint venture instruction,4 Fernandez immediately

objected to the judge's decision to offer such an instruction when

she fully comprehended the significance of it. After receiving

instructions from the judge, the jury returned a verdict that

Castillo was guilty of trafficking in 200 grams or more of cocaine.

III.

The standard of review for this habeas corpus petition is

set forth in the AEDPA statute, 28 U.S.C. §§ 2244-2266 (2002). On

the grounds pertinent to this case, a federal court may grant

habeas relief to a state prisoner if it finds, inter alia, that the

4
As the judge instructed the jury, "[i]nherent in the idea
of joint venture liability is that he aided and abetted and, as so,
shares the same mental intent and is guilty to the same extent as
a principal who commits the crime." To establish liability under
a joint venture theory under Massachusetts law, the prosecution
must prove (1) that the defendant was present at the scene of the
crime, (2) that the defendant had knowledge that another intended
to commit the crime and that he shared that intent himself, and (3)
that the defendant by agreement was willing and available to help
the other in carrying out the crime if necessary. For joint
venture liability, the prosecution is not required to show that
"the defendant physically participated in the actual offense in the
sense that he actually or constructively possessed a controlled
substance."

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state court adjudication "resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established

Federal law . . . ." 28 U.S.C. § 2254(d)(1). This section "defines

two categories of cases in which a state prisoner may obtain

federal habeas relief with respect to a claim adjudicated on the

merits in state court." Williams v. Taylor, 529 U.S. 362, 404

(2000). Under the "contrary to" prong, a federal court may grant

the writ if the state court "arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law or if the

state court decides a case differently than [the Supreme Court] has

on a set of materially indistinguishable facts." Id. at 412-13.

Under the "unreasonable application" prong, a federal court may

grant the writ if the state court "identifies the correct governing

legal principle from [the Supreme] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's

case." Id. at 413. In the latter case, the state court's

determination must be unreasonable, not simply incorrect, and

unreasonableness is an objective standard. Id. at 410-11. "If it

is a close question whether the state decision is in error, then

the state decision cannot be an unreasonable application."

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)(en banc).

A. Denial of Request for a Continuance

Castillo contends that the trial court's denial of a

continuance was "so arbitrary as to violate due process." In his

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challenge to the state court's failure to grant his motion for a

new trial on this basis, he claims that this denial constituted an

unreasonable application of clearly established Supreme Court

precedent5 because it

gave no weight to counsel's lack of
preparation and experience, drew an improper
presumption that counsel was "ready willing
and able" to try the case from the fact of her
appearance in the face of her representation
to the contrary, and misrepresented the roles
of the various members of the law firm in a
way that is misleading and beside the point.

We disagree.

The only Supreme Court precedent that Castillo identifies

for purposes of the "unreasonable application" analysis is Ungar v.

Sarafite, 376 U.S. 575 (1964). The Supreme Court held that a trial

judge's decision not to grant the defendant in a contempt hearing

a one-week continuance did not offend the requirements of due

process.

The matter of continuance is traditionally
within the discretion of the trial judge, and
it is not every denial of a request for more
time that violates due process even if the
party fails to offer evidence or is compelled
to defend without counsel. Contrariwise, a
myopic insistence upon expeditiousness in the
face of a justifiable request for delay can
render the right to defend with counsel an
empty formality.

5
Castillo does not argue that the trial court's denial of
his request for a continuance was contrary to Supreme Court
precedent.

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Id. (internal citations omitted). The Court added that "[t]here

are no mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process." Id. Instead,

reviewing courts must examine "the circumstances present in every

case, particularly in the reasons presented to the trial judge at

the time the request is denied." Id. However, "[n]ot every

restriction on counsel's time or opportunity to investigate or to

consult with his client or otherwise to prepare for trial violates

a defendant's Sixth Amendment right to counsel." Morris v. Slappy,

461 U.S. 1, 11 (1983).

We recently applied Ungar's case-specific inquiry to a

denial of a continuance, holding that a reviewing court must look

at "the reasons contemporaneously presented in support of the

request for the continuance." We also identified a number of

relevant factors:

the amount of time needed for effective
preparation, the amount of time actually
available for preparation, the amount of time
previously available for preparation and how
assiduously the movant used that time, the
extent to which the movant has contributed to
his perceived predicament, the complexity of
the case, the availability of assistance from
other sources, the probable utility of a
continuance, the extent of inconvenience to
others . . . should a continuance ensue, and
the likelihood of an injustice or unfair
prejudice attributable to the denial of a
continuance.

United States v. Saccochia, 58 F.3d 754, 770 (1st Cir. 1995).

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 Due to the summary nature of the Appeals Court's

affirmance, our review of the state courts' application of federal

law to the request for a continuance requires us to review the

decision of the trial court denying Castillo's motion for a new

trial. In its denial of Castillo's motion for a new trial, the

trial court noted that the trial originally had been scheduled for

September 23, 1996, that Fernandez had presented a motion to appear

pro hac vice and had made a corresponding appearance almost two

months before the scheduled trial date, and that, in allowing the

motion, the court put Fernandez on notice that the impending trial

would not be delayed. Thus, counsel had ample time to prepare.

Even in pressing her last minute request for a brief continuance,

Fernandez made no representations to the trial judge that she had

never before tried a case and that her inexperience might make it

difficult for her to try this case under the circumstances.

Furthermore, in its order denying Castillo's motion for a new

trial, the trial court found that "counsel's performance during the

trial did not reflect that of an attorney noticeably lacking in

either experience or competence sufficient to meet constitutional

standards." Commonwealth v. Castillo, No. 9477 CR 3461, slip op.

at 4.

In submitting her motion to appear, Fernandez represented

to the court that she was ready to try the case. Moreover, that

motion was allowed on the express condition that the trial date

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remain as scheduled and the trial not be delayed. At no time did

Fernandez indicate to the judge that this was her first trial. To

the contrary, in her motion to appear, Fernandez explicitly stated

"I specialize in Criminal and Federal law." In light of the

information before the trial judge at the time he made his decision

and the "great deal of latitude" necessarily afforded judges in

scheduling trials, Morris, 461 U.S. at 11, the decision not to

grant Castillo a new trial on the basis of the denial of his

request for a continuance was not an unreasonable application of

Supreme Court precedent.

B. Ineffective Assistance of Counsel

In rejecting Castillo's motion for a new trial on the

basis of ineffective assistance of counsel, the trial court found

that "Attorney Fernandez's performance [was not] measurably below

that of an ordinarily fallible lawyer" and "defense counsel's

theory of the case was not 'manifestly unreasonable.'"

Commonwealth v. Castillo, No. 9477 CR 3461, slip op. at 5-6.

Castillo argues that the "manifestly unreasonable" standard that

the trial court applied in assessing trial counsel's tactical

judgment is contrary to the standard the Supreme Court prescribed

in Strickland. Castillo also argues that the state court's

evaluation of Fernandez's performance was an unreasonable

application of Strickland. After a brief explanation of the

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Strickland standard, we explain our reasons for rejecting these

arguments on the merits.

1. The Strickland Standard

In Strickland v. Washington, the Supreme Court set forth

the controlling principles for deciding ineffective assistance of

counsel claims. Under these principles, a defendant alleging

ineffective assistance of counsel must establish two elements:

First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense.

Strickland, 466 U.S. at 687. In addressing the first element,

"judicial scrutiny of counsel's performance must be highly

deferential." Id. at 689. A reviewing court must leave "ample

room for variations in professional judgment," Ouber v. Guarino,

293 F.3d 19, 25 (1st Cir. 2002) (citing Strickland, 466 U.S. at

689), and "every effort [must] be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Id. at 689. Only if, "in light of all

the circumstances, the identified acts or omissions of counsel were

outside the wide range of professionally competent assistance," can

a finding of deficient performance ensue. Id. at 690.

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 Even if counsel's performance is constitutionally

deficient, the second element of the Strickland standard requires

the petitioner to demonstrate that "there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694.

While such prejudice may be presumed in a few limited

circumstances, such cases are the exception. See Bell v. Cone, 535

U.S. 685, 695-96 (2002). Generally, the petitioner "must carry the

devoir of persuasion and prove that he was prejudiced, i.e. that

his attorney's parlous conduct may have altered the outcome of the

case." Ouber, 293 F.3d at 25. However, "there is no reason for a

court deciding an ineffective assistance claim to approach the

inquiry in [] order or even to address both components of the

inquiry if the defendant makes an insufficient showing on one."

Strickland, 466 U.S. at 697. Hence we address primarily the

performance component of the Strickland standard.

2. Contrary to Strickland

In evaluating Castillo's ineffective assistance of

counsel claim, the state court used the following standard:

[Castillo] must demonstrate that defense counsel's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and that such inadequacies likely deprived the
defendant of an otherwise available defense. Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Counsel's tactical judgment
must be "manifestly unreasonable" to constitute ineffective
assistance of counsel. Commonwealth v. White, 409 Mass 266, 273
(1991).

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Commonwealth v. Castillo, No. 9477 CR 3461, slip op. at 5-6. In

his brief on appeal Castillo argues that this "manifestly

unreasonable" standard is contrary to the federal standard set

forth in Strickland. Ordinarily, we would not address this

argument, as it was not raised before the district court in either

Castillo's original habeas petition or in his application for a

certificate of appealability. Malave v. Carney Hosp., 170 F.3d

217, 222 (1st Cir. 1999)("It is a bedrock rule of appellate

practice that . . . matters not raised in the [district] court

cannot be hawked for the first time on appeal."); see Kramer v.

Kemna, 21 F.3d 305, 308 (8th Cir. 1994) (In an appeal from a denial

of a writ of habeas corpus, the court declined to consider issues

not raised before the district court, holding that the "[f]ailure

to give the district court a first opportunity to decide the merits

of an argument constitutes a waiver of that argument."); Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993) (same); Depree v.

Thomas, 946 F.2d 784, 793 (11th Cir. 1991) (same).

However, an appellate court has discretion, in an

exceptional case, to reach issues that were not raised below.

United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990);

United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).

We have found the exercise of such discretion to be appropriate

where the appellant's challenge "raises an issue of constitutional

magnitude which, if meritorious, could substantially affect [the

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appellant], and future defendants . . . ." La Guardia, 902 F.2d at

1013; see Federal Credit Union v. DelBonis, 72 F.3d 921, 930 (1st

Cir. 1995) ("[C]ases involving important constitutional or

governmental issues may be exceptional and, as such, there should

be a full treatment of all legal issues involved, whether squarely

introduced by the parties or not."). Castillo's argument that the

state court's "manifestly unreasonable" standard is contrary to

Strickland raises an important question of law that can be resolved

on the existing record and that is "almost certain to be presented

in identical terms in other cases." La Guardia, 902 F.2d at 1013.

The issue has been fully briefed on this appeal and was covered

exhaustively at oral argument. If this constitutional claim were

otherwise meritorious, failure to reach it because of a procedural

default could result in "a miscarriage of justice." See id.

Therefore, we address the merits of Castillo's claim.

In evaluating whether Castillo was denied effective

assistance of counsel, the trial court differentiated between

allegations concerning the quality of counsel's performance and

those concerning the reasonableness of her tactical judgments.

Commonwealth v. Castillo, No. 9477 CR 3461, slip op. at 5-6. The

trial court cited Commonwealth v. Saferian, 315 N.E.2d 878, 883

(1974), for the proposition that Castillo was required to

demonstrate that attorney Fernandez's performance fell "measurably

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below that which might be expected from an ordinary fallible

lawyer." It concluded that Castillo failed to meet this burden.

Castillo does not contest the trial court's use of the

performance standard articulated by the Massachusetts Supreme Court

in Saferian, which we have described as the "functional equivalent

of Strickland." Ouber v. Guarino, 293 F.3d 19, 31 (1st Cir. 2002).

Rather, Castillo argues that the trial court applied to counsel's

tactical judgments a standard that was "contrary to" Strickland.6

For the reasons set forth below, we are not persuaded.

In its use of the phrase "manifestly unreasonable," the

trial court cited Commonwealth v. White, 565 N.E.2d 1185, 1189-90

(Mass. 1991), which in turn cited Commonwealth v. Adams, 375 N.E.2d

681, 685 (Mass. 1978)("Although most cases involving a claim of

ineffective counsel concern counsel's lack of preparation, there

may be instances where the judgment of fully informed counsel may

be so manifestly unreasonable as to be unprotected by the labels of

'trial strategy' or 'trial tactics.'"). In White, the

6
Castillo appears to suggest that the state court
erroneously applied the "manifestly unreasonable" standard to each
of the alleged errors of counsel that Castillo raised, regardless
of whether these allegations related to trial counsel's strategic
decision-making or to her performance. This is incorrect. The
court applied the "manifestly unreasonable" standard to actions
that it characterized as tactical or strategic. It applied a
different test to Castillo's claims relating to trial counsel's
inadequate preparation, qualifications to conduct the trial, and
performance at the trial, concluding that "Attorney Fernandez's
performance [was not] measurably below that of an ordinarily
fallible lawyer."

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Massachusetts Supreme Judicial Court quoted Saferian's standard for

evaluating a claim of ineffective assistance of counsel, and then

added:

In cases where tactical or strategic decisions of
defendant's counsel are at issue, we conduct our review
with some deference to avoid characterizing as
unreasonable a defense that was merely unsuccessful. See
Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). See
also Strickland v. Washington, 466 U.S. 668, 689-90
(1984). Rather than merely unreasonable, we require that
challenged tactical judgments must be "manifestly
unreasonable." Commonwealth v. Adams, 374 Mass. 722, 728
(1978).

White, 565 N.E.2d at 1190. Thus, in support of the "manifestly

unreasonable" language, the trial court cited to White, which

relied heavily on both Saferian and Strickland. This "manifestly

unreasonable" standard is not contrary to the standard set forth in

Strickland.

In Strickland, the Supreme Court held that "the proper

standard for attorney performance is that of reasonably effective

assistance," and that "[w]hen a convicted defendant complains of

the ineffectiveness of counsel's assistance, the defendant must

show that counsel's representation fell below an objective standard

of reasonableness." Strickland, 466 U.S. at 687. "More specific

guidelines are not appropriate . . . . The proper measure of

attorney performance remains simply reasonableness under prevailing

professional norms." Id. at 688. Recently, in Williams v. Taylor,

Justice O'Connor clarified what it means for a state court decision

to be contrary to clearly established federal law:

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 The word "contrary" is commonly understood to mean
"diametrically different," "opposite in character or
nature," or "mutually opposed." The text of § 2254(d)(1)
therefore suggests that the state court's decision must
be substantially different from the relevant precedent of
this Court. . . . Take, for example, our decision in
Strickland v. Washington, 466 U.S. 668 (1984). If a
state court were to reject a prisoner's claim of
ineffective assistance of counsel on the grounds that the
prisoner had not established by a preponderance of the
evidence that the result of his criminal proceeding would
have been different, that decision would be
"diametrically different," "opposite in character or
nature," and "mutually opposed" to our clearly
established precedent because we held in Strickland that
the prisoner need only demonstrate a "reasonable
probability that . . . the result of the proceeding would
have been different." Id. at 694.

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). By this example,

a state court decision imposing a heavier burden on a defendant

endeavoring to make an ineffective assistance claim than that set

forth in Strickland is contrary to Strickland.

However, Strickland also counsels that in evaluating the

reasonableness of counsel's tactical or strategic choices, courts

must apply "a heavy measure of deference to counsel's judgments."

In this context, "the Supreme Court [in Strickland] cited with

approval the approach to strategic decision-making of the Fifth

Circuit Court of Appeals, which allowed challenges when 'the choice

was so patently unreasonable that no competent attorney would have

made it.'" Phoenix v. Matesanz, 233 F.3d 77, 82 n.2 (1st Cir.

2001)(quoting Washington v. Strickland, 693 F.2d 1243, 1254 (5th

Cir. 1982)). In addition to the First and Fifth Circuits, other

circuits have applied this "patently unreasonable" formulation to

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tactical judgments. See, e.g., Bullock v. Carver, 297 F.3d 1036,

1046 (10th Cir. 2002); Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th

Cir. 2001), cert. denied, 535 U.S. 1000 (2002).7 The minor

variation in phraseology between "patently" and "manifestly" does

not render the Massachusetts standard contrary to federal law. See

Ouber, 293 F.3d at 32. As the Supreme Court in Strickland

implicitly affirmed the lower court's "patently unreasonable"

formulation in the context of tactical decision-making, the

standard employed by the trial court in evaluating Castillo's

ineffective assistance of counsel claim was not "diametrically

different," "opposite in character or nature," or "mutually

opposed" to Strickland.

7
In citing with approval the Fifth Circuit's approach, the
Supreme Court in Strickland noted that "strategic choices made
after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable," while "strategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation." Strickland, 466 U.S. at
690-91. Thus, rather than simply characterizing trial counsel's
tactical decisions as "unconsidered blunders," Castillo might have
argued that the trial court erred by failing to distinguish between
informed and uninformed tactical decision-making. However, those
Circuits that have adopted the "patently unreasonable" formulation
are divided on the question of whether Strickland accords
heightened deference only to informed strategic choices. See Epsom
v. Hall, 330 F.3d 49, 54 (1st Cir. 2003)(applying the formulation
to all strategic decision-making); Dorsey, 262 F.3d at 1186 (same);
cf. Bullock v. Carver, 297 F.3d at 1046 (applying the standard to
counsel's "fully-informed strategic choices"). Therefore, even if
Castillo had raised this argument directly, we would be unable to
conclude that the state court's application of the "manifestly
unreasonable" formula to all tactical judgments was contrary to
Strickland.

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 3. Unreasonable Application of Strickland

In his habeas petition to the district court, and now on

appeal, Castillo argues that the trial court's resolution of the

ineffective assistance of counsel claim was an unreasonable

application of clearly established federal law. Castillo's

complaints fall into two broad categories. Under the first,

Castillo alleges that Fernandez's failure to know the law resulted

in the following errors: (1) stipulating that the substance found

in the apartment was cocaine and that the total amount of cocaine

exceeded 200 grams; (2) rejecting jury instructions on the lesser

included offenses of simple possession and possession with intent

to distribute; and (3) requesting a harmful joint venture jury

instruction. Under the second, Castillo alleges that Fernandez's

failure to know the facts caused her to (1) call Castillo to the

stand after inadequate preparation; and (2) fail to call two

witnesses (Ms. Mercado and Ms. Dominguez).

The trial court viewed Castillo's performance-related

allegations that counsel was ill-prepared and unqualified as "mere

Monday-morning quarterbacking." Commonwealth v. Castillo, No. 9477

CR 3461, slip op. at 6. The trial court found that Fernandez's

performance was not "measurably below that of an ordinarily

fallible lawyer." Id. at 5. The court cited as evidence of the

adequacy of her performance Fernandez's appropriate presentation of

a number of pretrial motions, her effective cross-examination of

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the prosecution's witnesses, and a well-argued motion for a finding

of not guilty at the close of the Commonwealth's case as well as at

the end of trial. The court's evaluation of counsel's performance

from its contemporaneous perspective during trial is an appropriate

application of Strickland's caution against the "distorting effects

of hindsight." Strickland, 466 U.S. at 689.

The trial court deemed Fernandez's decision not to call

Ms. Mercado and Ms. Dominguez "a strategic decision which the court

will not second guess" and "well within the wide range of

reasonable professional assistance." These witnesses could not

offer testimony on the critical issue of what transpired within the

apartment but could only corroborate Castillo's history and stated

reasons for being in Massachusetts. Moreover, there were details

of their proposed testimony (such as their accounts of where he got

the $467 in cash) that conflicted with Castillo's testimony. The

trial court's determination that the decision not to call them to

the stand was reasonable was an appropriate application of

Strickland's insistence on the "wide latitude counsel must have in

making tactical decisions." Strickland, 466 U.S. at 689.

Similarly, the court viewed Fernandez's rejection of instructions

on lesser offenses offered by the judge to be consistent with

counsel's not-manifestly-unreasonable theory that Castillo had no

knowledge of any drugs in the apartment. This determination is

consistent with the acknowledgment in Strickland that "[t]here are

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countless ways to provide effective assistance in any given case,"

and that there is a "presumption that, under the circumstances, the

challenged action might be considered sound trial strategy."

Strickland 466 U.S. at 689 (internal quotations omitted).

The most troubling of Fernandez's alleged errors is her

stipulation to the quantity of drugs found in the apartment. By

stipulating to 200 grams, Fernandez not only ensured that, if found

guilty, Castillo would be sentenced to a minimum of fifteen years,

but she also established as proven a fact from which the jury could

draw the reasonable inference of intent to distribute. The trial

court found this decision not to contest the quantity of drugs to

be consistent with counsel's theory that Castillo did not know

anything about the drugs present in the apartment, a theory of the

case that the trial court concluded was not manifestly

unreasonable.

We acknowledge that Fernandez's decision to stipulate to

the presence of the 200 grams or more of cocaine seems, from

hindsight, somewhat puzzling. She could have concurrently

maintained the theory that Castillo did not know about the drugs

while requiring the Commonwealth to meet its burden of proof as to

the quantity of cocaine found in the apartment. She received no

apparent advantage from this concession. On the other hand, with

169 grams of cocaine found in the clear plastic bags thrown out the

window, and several additional bags of cocaine in the brown paper

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bag on the table where Castillo was standing (along with the

cocaine the jury might have assumed was flushed down the toilet),

proof of the 200 gram minimum, in the absence of the stipulation,

would probably not have taxed the prosecution greatly. Defense

counsel might well have reasoned that a refusal to stipulate would

only draw attention to the various quantities of drugs in the

immediate area and thereby hurt, not help, her client.

In any event, given the consistency of this stipulation

with Castillo's defense (an unawareness of the presence of drugs in

the apartment), we can not say that the trial court's determination

that this defense strategy "was not manifestly unreasonable" (and

therefore did not constitute ineffective assistance of counsel)

rises to the level of "unreasonableness" required by the AEDPA

statute. Indeed, in light of Strickland's

implicit endorsement of the Fifth Circuit's "patently unreasonable"

approach to the analysis of decision-making and its presumption

that the challenged action "might be considered sound trial

strategy," Strickland, 466 U.S. at 689, the conclusion is

inescapable that the trial court's rejection of Castillo's

ineffective assistance claim does not constitute an unreasonable

application of clearly established federal law.

Affirmed.

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