Horton v. Allen

United States Court of Appeals
For the First Circuit

No. 03-1423

RUSSELL J. HORTON,

Petitioner, Appellant,

v.

PETER ALLEN, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Selya and Howard, Circuit Judges,

and Singal,** District Judge.

Emanuel Howard for appellant.
Annette C. Benedetto, Assistant Attorney General with whom
Thomas F. Reilly, Attorney General, was on brief, for appellees.

May 26, 2004

*
Of the Southern District of New York, sitting by designation.
**
Of the District of Maine, sitting by designation.
 HOWARD, Circuit Judge. Petitioner Russell Horton, a

Massachusetts state prisoner convicted of two first-degree murders,

appeals from the denial of his petition for a writ of habeas

corpus. We affirm.

I. Factual Background

In June 1998, a jury convicted Horton of committing two

first-degree murders and an assault with the intent to murder. We

provide a summary of the evidence introduced at Horton's trial.

See Commonwealth v. Horton, 753 N.E.2d 119, 122-24 (Mass. 2001).

On May 25, 1994, the three victims, Carlos and Manuel

Araujo and Kepler Desir drove together from Boston to Brockton,

Massachusetts. During the drive, Desir instructed Manuel to pick

up Horton and Frederick Christian on Owens Street in Brockton.

Desir knew these two men, but the Araujos did not. Christian and

Horton got into the back seat of the car with Carlos, and the five

men drove off together.

During the drive, Horton announced that he wanted to rob

some "Dominican drug dealers" and instructed Manuel to drive to a

certain location where he could carry out his plan. Along the way,

Horton exposed a gun and asked the others if they had weapons.

They claimed that they did not. Upon arriving at the site, Horton

and Christian left the car but returned shortly, claiming that they

were unable to complete the robbery. After reentering the car,

Horton instructed Manuel to drive to a nearby parking lot.

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 In the parking lot, while staring out the window, Carlos

was shot in the head. He immediately slumped forward, pretending

to be dead. After two more shots were fired, Carlos heard Horton

say, "Go through their pockets." Carlos then sensed Christian move

from his seat and heard him ask Horton, "Did you do him?" Several

minutes later, Christian and Horton departed the scene.

After laying still for a few more moments, Carlos saw the

bodies of Manuel and Desir and ran to the nearest house for help.

Carlos told the people in the house that "Russell" had shot him.

Later, at the hospital, Carlos repeated that "Russell" had shot

him.

Barry Stephens lived near the parking lot where the

murders occurred and knew Horton and Christian. He testified that

Horton had sold drugs for Desir but, because of a recent falling

out, Horton was no longer working for Desir. He also testified

that, on the night of the murders, he had heard gun shots, and that

five minutes later, Horton and Christian had arrived at his house.

According to Stephens, Horton "was foaming at the mouth" and

looking "wild." Horton told him that, "[He] smoked him . . . [He]

smoked all three of them." In particular, Horton said that he had

"smoked Quarter," which was Desir's nickname. Stephens told Horton

and Christian to leave immediately.

At the time of the murders, Christian was in financial

trouble. On the day of the shootings, Christian stated that he

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needed money and asked Desir for drugs on credit, a request which

Desir refused. Horton and Christian believed that Desir was

carrying a large amount of cash on the night of the murders because

he was planning to travel to New York later that night to buy

several thousand dollars worth of drugs.

Horton gave inconsistent statements concerning his

whereabouts on the night of the murders. He first told the police

that he had met up with Christian, that they had gone for a walk

with another friend, and had gone home at approximately 11 p.m.

After the police indicated that they intended to search the car for

fingerprints and talk to Christian, Horton changed his story. He

stated that he and Christian were with Desir and two other men, and

that they had driven to Fuller Avenue, where he and Christian left

to buy drugs. He told the police that he expected Desir to return

to pick him up, but Desir never did.

II. Procedural Background

The trial court sentenced Horton to concurrent life terms

of imprisonment for the murders and a 10-15 year term for the

assault. Horton subsequently filed a motion for new trial, see

Mass. R. Crim. P. 30, which was denied by the trial court.

Thereafter, the Supreme Judicial Court of Massachusetts (SJC)

rejected Horton's direct appeal and his appeal from the denial of

his new trial motion. See Horton, 753 N.E.2d at 131.

-4-
 Horton then filed a timely petition for a writ of habeas

corpus in the United States District Court for the District of

Massachusetts. See 28 U.S.C. § 2254(d). In his petition, Horton

claimed that (1) his right to a public trial was violated; (2) his

right to confront witnesses was violated; (3) the jury instructions

were incorrect; and (4) his trial counsel was ineffective. In an

unpublished memorandum and order, the district court rejected the

petition. See Horton v. Maloney, No. 02-CV-10416-MEL, (D. Mass.

Feb. 5, 2003). Horton obtained certificates of appealability for

each of the claims, except the jury instruction issue. See 28

U.S.C. § 2253.

III. Discussion

Horton's appeal raises three claims. First, he argues

that the trial court violated his Sixth Amendment right to a public

trial by holding the individual voir dire of potential jurors in an

anteroom rather than the courtroom. Second, he contends that the

trial court violated his Sixth Amendment right to confront

witnesses by admitting certain hearsay testimony. Third, he

asserts that his Sixth Amendment right to effective counsel was

violated because defense counsel did not call certain alibi

witnesses and failed to interview certain potential character

witnesses.

Horton's habeas corpus petition is governed by the

Antiterrorism and Effective Death Penalty Act (AEDPA). See 28

-5-
U.S.C. §§ 2244-2266. Under the AEDPA, a federal court may grant a

habeas petition if it finds that the 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).

Under the "contrary to" prong of 28 U.S.C. § 2254(d)(1),

the petition may be granted 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." Williams v. Taylor, 529 U.S. 362, 412-

13 (2000). Under the "unreasonable application" prong of 28 U.S.C.

§ 2254(d)(1), the petition may be granted 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. To be an

unreasonable application of governing law, the state court's

determination must not only be incorrect but also be objectively

unreasonable. Id. at 410-11. In other words, if the petition

presents a close call, it must be rejected, even if the state court

was wrong. See Nom v. Spencer, 337 F.3d 112, 116 (1st Cir. 2003).

If, however, the petition presents a federal claim that was raised

before the state court but was left unresolved, the AEDPA's strict

standards do not apply. See Fortini v. Murphy, 257 F.3d 39, 47

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(1st Cir. 2001). In such a circumstance, we review the claim de

novo. See Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003).

A. Public Trial

Horton and the prosecution jointly requested that the

trial court conduct an individual voir dire of prospective jurors

to ask them about the effect that racial prejudice and pretrial

publicity could have on their ability to decide the case

impartially.1 Massachusetts law requires that an individual voir

dire be conducted "outside the presence of other persons about to

be called as jurors or already called." Mass. Gen. L. ch. 234, §

28. To comply with this statute, the court conducted the

individual voir dire in an anteroom, while the other potential

jurors waited in the courtroom. Horton and his counsel were

present for the entire proceeding, and Horton was able to aid his

counsel throughout.2 Defense counsel did not object to conducting

the individual voir dire in the anteroom. Accordingly, the SJC

held that the issue was not preserved for appellate review and

considered it only for "a substantial likelihood of a miscarriage

of justice." Horton, 753 N.E.2d at 127. The SJC rejected the

claim because Horton did not suffer prejudice from the voir dire

procedure. Id. at 128.

1
Horton is African American.
2
The judge, prosecutor, clerk, court reporter, and court
officer were also present.

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 Citing Press-Enterprise Co. v. Superior Court, 464 U.S.

501 (1984), Horton argued in the district court that this voir dire

procedure violated his right to a public trial because the public

was excluded from attending the individual juror questioning. The

district court rejected this claim on procedural default grounds

because defense counsel did not object at trial.

Generally, habeas review is precluded when a state court

reaches its decision on an independent and adequate state law

ground. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). A

state court's decision to find a forfeiture, based on the

defendant's failure to object at trial, is an independent and

adequate ground for decision so long as the state court

consistently applies its contemporaneous objection rule and has not

waived it in the particular case by basing the decision on some

other ground. See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.

1995). That is the situation here. The SJC consistently enforces

the rule that unpreserved claims are forfeited, see Gunter v.

Maloney, 291 F.3d 74, 79 (1st Cir. 2002), and enforced the rule in

the instant case, see Horton, 753 N.E.2d at 127. The SJC did

review the claim for a "substantial miscarriage of justice," id.,

but this sort of limited review does not work a waiver of the

contemporaneous objection requirement. See Gunter, 291 F.3d at 79-

80; Dubois, 55 F.3d at 716 n.2; Tart v. Massachusetts, 949 F.2d

-8-
490, 496 (1st Cir. 1991); Puleio v. Vose, 830 F.2d 1197, 1200 (1st

Cir. 1987).

Because the SJC resolved Horton's claim on state law

grounds, the habeas court may consider the claim if Horton

establishes "cause and prejudice" with respect to the procedural

default.3 See Dretke v. Haley, –- U.S. --, 124 S.Ct. 1847, 1851-52

(2004); Coleman, 501 U.S. at 750. To satisfy the cause portion of

the test, Horton must show "that some objective factor external to

the defense impeded counsel's efforts to comply with the State's

procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).

One way to establish cause is to demonstrate that defense counsel's

inaction constituted ineffective assistance of counsel. See

Coleman, 501 U.S. at 752; Carrier, 477 U.S. at 488; Gunter, 291

F.3d at 81. Horton takes this tack in an effort to establish

cause.

Under Strickland v. Washington, 466 U.S. 668, 688 (1984),

counsel's performance is ineffective only if it was objectively

unreasonable under prevailing professional norms.4 To prevail on

3
A procedural default may also be excused if the defendant
shows a fundamental miscarriage of justice, i.e., "a constitutional
violation that has probably resulted in the conviction of one who
is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995)
(internal quotations and citations omitted). Horton has made no
such showing here.
4
Strickland also requires a demonstration of prejudice, i.e.,
"a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
466 U.S. at 694. Citing Waller v. Georgia, 467 U.S. 39, 49-50 &

-9-
his claim, Horton must overcome the "strong presumption that . . .

the challenged action might be considered sound trial strategy."

Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir. 1998) (quoting

Strickland, 466 U.S. at 689). Horton contends that his counsel was

ineffective by failing to object to the voir dire procedure because

the "public trial right of a criminal defendant was clearly

established by the time of trial." The trial court rejected this

claim, finding that Horton's counsel welcomed the individual voir

dire procedure because "it was most conducive to eliciting candid

responses by the jurors on possible prejudice." The SJC agreed,

noting that "the less public setting for the voir dire in all

likelihood helped rather than harmed [Horton]." Horton,753 N.E.2d

at 128.5

n.9 (1984), Horton argues that the prejudice prong of Strickland is
automatically satisfied because the denial of a public trial is a
structural error. Because, as discussed in the text, we resolve
the ineffective assistance claim on the performance prong of the
analysis, we do not decide if prejudice would be presumed in the
present circumstances.
5
Horton has not introduced competent evidence to challenge
the state court's finding that defense counsel welcomed the voir
procedure for strategic reasons. See 28 U.S.C. § 2254(e)(1)
(stating that in habeas proceeding state court factual
determinations are presumptively correct absent contrary showing by
clear and convincing evidence). The only arguably contrary
information is an affidavit from Horton's habeas counsel containing
a summary of his conversations with defense counsel in which
defense counsel stated that he should have insisted that the
individual voir dire be conducted in public. This affidavit is
inadequate to justify disregarding the state court's finding. Cf.
United States v. Maguire, 600 F.2d 330, 332 (1st Cir. 1979)
(holding that affidavit of appellate counsel summarizing
conversations with trial counsel in which trial counsel admitted

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 In some circumstances, defense counsel's interest in

protecting the accused's right to a completely public trial may

give way to other concerns, such as maximizing the accused's chance

of obtaining a favorable jury composition. For this reason, the

defendant may have an "interest in protecting juror privacy in

order to encourage honest answers to the voir dire questions."

Press-Enterprise, 464 U.S. at 515 (Blackmun, J., concurring). In

particular, defense counsel may wish to shield jurors from public

questioning when the objective is to identify possible racial

biases in the venire because the prospects of a potential juror

publically admitting such bias are slim. As one court noted, "It

is no doubt a difficult thing for any person to admit to any degree

of racial bias, but to do so [publically] might well require what

the theologians used to call heroic virtue." United States v.

King, 911 F. Supp. 113, 117 (S.D.N.Y. 1995), aff'd 140 F.3d 76 (2d

Cir. 1998); see also In re S. Carolina Press Ass'n, 946 F.2d 1037,

1043 (4th Cir. 1991) ("[F]ear of publicity that might be given to

answers of venirepersons during voir dire may so inhibit or chill

truthful responses that an accused is denied the fair trial to

which he is entitled under the Fourteenth Amendment"); United

States v. Colabella, 448 F.2d 1299, 1304 (2d Cir. 1971) ("It is too

much to expect of human nature that a juror would volunteer in open

making errors is hearsay and cannot establish ineffective
assistance claim).

-11-
court, before his fellow jurors, that he would be influenced in his

verdict by a newspaper story of the trial. Not only so, but had

one or more of them said they would be so influenced, and

especially if they had then explained why, the damage to the

defendant would have been spread to the listening other jurors.")

(internal quotations and citations omitted); United States v.

Koubriti, 252 F. Supp. 2d 424, 431 (E.D. Mich. 2003) ("The

potential jurors will be more candid in their responses if they do

not have to worry about what the public's opinion of those

responses might be.") (internal quotations and citations omitted);

Kimba M. Wood, Reexamining the Access Doctrine, 69 S. Cal. L. Rev.

1105, 1119 (1996) ("When jurors are reticent, the parties are

denied the opportunity to probe meaningfully for bias. The more

intimate setting of the robing room is far more conducive for

probing bias.").

While Horton may have had a right to insist that the

entire voir dire be conducted publically, see State v. Torres, 844

A.2d 155, 158 (R.I. 2004), the strategic advantage that he received

from the individual voir dire taking place in private cannot be

ignored.6 Defense counsel's decision to agree to a closed

6
Arguably, Horton's public trial rights were not violated
because he has not demonstrated that the trial court actually
excluded any members of the public from attending the juror
questioning. See Commonwealth v. Harris, 703 A.2d 441, 446 (Pa.
1998) (rejecting public trial claim based on voir dire conducted in
anteroom because "no exclusionary order was entered and the record
does not establish that the court prohibited the public from

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individual voir dire was an objectively reasonable strategy

designed to elicit forthcoming responses from the jurors about

racial bias. Accordingly, we cannot conclude that defense counsel

was ineffective in failing to object to the voir dire procedure.

Because Horton has failed to demonstrate ineffective assistance of

counsel, he has not established cause for the procedural default.

The district court therefore correctly declined to reach the merits

of the public trial claim. See Dubois, 55 F.3d at 718.

B. Confrontation Clause

Over Horton's objection, the trial court admitted

testimony from one Henry Garcia that, on the day of the murders,

Christian had stated that he needed money and that Desir had

refused to give him drugs on credit. The SJC affirmed the

admission of this testimony under the state-of-mind exception to

the hearsay rule. See Horton, 753 N.E.2d at 125. The SJC's

analysis was based exclusively on Massachusetts evidence law and

did not reference Horton's Confrontation Clause claim. Id.

Because the SJC did not resolve the constitutional issue, we

consider it de novo. See Fortini, 257 F.3d at 47.

observing the individualized voir dire"). Moreover, there is no
evidence that the trial court limited the availability of a
transcript of the individual voir dire proceeding. As the Press-
Enterprise Court recognized, in at least some circumstances, "the
constitutional values sought to be protected by holding open
proceedings may be satisfied later by making a transcript of the
closed proceeding available within a reasonable time." 464 U.S. at
512.

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 After this appeal was briefed, the Supreme Court decided

Crawford v. Washington, -- U.S. --, 124 S.Ct. 1354 (2004), which

changed the legal landscape for determining whether the admission

of certain hearsay statements violates the accused's right to

confront witnesses. In Crawford, the Court held that the

Confrontation Clause bars the admission of testimonial hearsay

unless the declarant is unavailable and the accused has had a prior

opportunity to cross-examine the declarant. Id. at 1374. This

holding abrogated, in part, the prior rule that the admission of

hearsay did not violate the Confrontation Clause if the declarant

was unavailable and the statement fell under a "firmly rooted

hearsay exception" or otherwise bore particularized guarantees of

trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 (1980).

At oral argument, the parties disagreed over Crawford's

application to Horton's petition. The debate is important because

"new rules of criminal procedure" do not apply in habeas

proceedings unless they fall within either of two exceptions: (1)

the rule places a class of private conduct beyond the power of the

state to proscribe, or (2) the rule is a "watershed rule" of

criminal procedure, implicating the fundamental fairness and

accuracy of the proceeding. See Teague v. Lane, 489 U.S. 288, 310-

11 (1989); Curtis v. Duval, 124 F.3d 1, 5 (1st Cir. 1997). While

the question of the retroactive effect of Crawford, if any, is an

important one, we bypass the question here because, as explained

-14-
below, Crawford does not apply to this case. See Campiti v.

Matesanz, 333 F.3d 317, 321-22 (1st Cir. 2003) (stating that court

need not resolve a Teague issue that was susceptible of resolution

on narrower or easier grounds).

Crawford draws a distinction between testimonial and

nontestimonial hearsay and applies only to the former category of

statements. See 124 S.Ct. at 1374. As the Court explained, "Where

nontestimonial hearsay is at issue, it is wholly consistent with

the Framers' design to afford the States flexibility in their

development of hearsay law--as does Roberts, and as would an

approach that exempted such statements from Confrontation Clause

scrutiny altogether." Id. Thus, unless Christian's statements

qualify as "testimonial," Crawford is inapplicable and Roberts

continues to apply.

The Crawford Court declined to provide a comprehensive

definition of testimonial statements. Id. at 1374 & n.10. It did,

however, provide three "formulations of [the] core class of

testimonial statements." Id. at 1364. In the first, testimonial

statements consist of "ex parte in-court testimony or its

functional equivalent--that is, material such as affidavits,

custodial examinations, prior testimony that the defendant was

unable to cross-examine or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially."

Id. The second formulation described testimonial statements as

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consisting of "extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions,

prior testimony, or confessions." Id. (quoting White v. Illinois,

502 U.S. 346, 365 (1992)). Finally, the third explained that

testimonial statements are those "made under circumstances which

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial." Id. While

the Court declined to settle on a single formulation, it noted

that, "[w]hatever else the term [testimonial] covers, it applies .

. . to prior testimony at a preliminary hearing, before a grand

jury, or at a former trial, and to police interrogations. These

are the modern abuses at which the Confrontation Clause was

directed." Id. at 1374.

In light of these formulations, Christian's statements do

not qualify as testimonial. They were not ex-parte in-court

testimony or its equivalent; were not contained in formalized

documents such as affidavits, depositions, or prior testimony

transcripts; and were not made as part of a confession resulting

from custodial examination. Rather, Christian's statements were

made during a private conversation with Garcia. In short,

Christian did not make the statements under circumstances in which

an objective person would "reasonably believe that the statement

would be available for use at a later trial." Id. at 1364.

Because Christian's statements were nontestimonial, their admission

-16-
is outside of Crawford's scope. See id. ("an accuser who makes a

formal statement to government officers bears testimony in a sense

that a person who makes a casual remark to an acquaintance does

not"); United States v. Reyes, 362 F.3d 536, 540 n.4 (8th Cir.

2004) (stating that Crawford does not apply to co-conspirator

statements because they are nontestimonial). Accordingly, we apply

Roberts to determine whether the admission of Christian's hearsay

statements violated Horton's Confrontation Clause rights.

As discussed above, Roberts permits the admission of a

hearsay statement of an unavailable declarant as long as the

statement "falls within a firmly rooted hearsay exception" or

otherwise bears particularized guarantees of trustworthiness. See

supra at 13-14. The relevant exception here is state-of-mind.

Under Massachusetts law, the state-of-mind exception permits the

admission of statements that demonstrate the declarant's intent to

perform some future act. See P.J. Liacos et al., Handbook of

Massachusetts Evidence, § 8.15 (7th ed. 1999)(citing cases). The

SJC determined that Christian's statements that he needed money and

that Desir would not give him drugs on credit suggested his intent

to subsequently rob Desir, and the statements were admissible to

show this intent. See Horton, 753 N.E.2d at 125.7

7
The statements were relevant because they provided an
explanation for Christian's conduct on the night of the murders
when he was acting with Horton. Because the prosecution charged
Horton with felony murder (based on the armed robbery of Desir),
evidence suggesting that Horton's compatriot had a motive for

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 The admission of Christian's statements comports with

Roberts. First, Christian was unavailable to testify because he

was also accused of the murders. See Commonwealth v. Christian,

722 N.E.2d 416 (Mass. 2000). Second, the statements fall within a

firmly rooted hearsay exception for statements evidencing the

declarant's state-of-mind.

A hearsay exception is firmly rooted if, "in light of

longstanding judicial and legislative experience [the exception]

rests on such a solid foundation that admission of virtually any

evidence within it comports with the substance of the

constitutional protection." Lilly v. Virginia, 527 U.S. 116, 126

(1999) (internal quotations and citations omitted). The state-of-

mind exception has been recognized by the Supreme Court and the SJC

for over a century. See Mut. Life Ins. Co. v. Hillman, 145 U.S.

285, 295-96 (1892) (admitting letter stating that declarant

intended to travel to a certain destination with another);

Commonwealth v. Trefethen, 31 N.E. 961, 964-65 (Mass. 1892)

(admitting statement of declarant's intention to commit suicide).

Indeed, "the exception exists in every jurisdiction in the country,

whether by statute, court rule, or common law tradition," Hayes v.

York, 311 F.3d 321, 325 (4th Cir. 2002), and has been codified in

the Federal Rules of Evidence, see Fed. R. Evid. 803(3). The

robbing Desir was relevant to proving the prosecution's theory of
the case.

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premise for admitting hearsay statements evidencing state-of-mind

is that such statements are reliable because of their "spontaneity

and [the] resulting probable sincerity." McCormick on Evidence, §

274 (5th ed. 1999). Thus, the rationale for the state-of-mind

exception is similar to the rationale for the other hearsay

exceptions that the Supreme Court has recognized as "firmly

rooted." See Lilly, 527 U.S. at 127 (stating that firmly rooted

exceptions are those that permit the admission of declarations

"made without motive to reflect on the legal consequences of one's

statements and in situations that are exceptionally conducive to

veracity"). Considering the state-of-mind exception's lineage and

policy origins, we agree with the many other courts that have

recognized it to be a firmly rooted hearsay exception. See, e.g.,

Hayes, 311 F.3d at 326; Moore v. Reynolds, 153 F.3d 1086, 1107

(10th Cir. 1998); Terrovona v. Kincheloe, 852 F.2d 424, 427 (9th

Cir. 1988); Barber v. Scully, 731 F.2d 1073, 1075 (2d Cir. 1984);

Lenza v. Wyrick, 665 F.2d 804, 811 (8th Cir. 1981); Frazier v.

Mitchell, 188 F. Supp. 2d 798, 813-14 (N.D. Ohio 2001); United

States v. Alfonso, 66 F. Supp. 2d 261, 267 (D.P.R. 1999); Reyes v.

State, 819 A.2d 305, 313 (Del. 2003); People v. Waidla, 996 P.2d

46, 67 n.8 (Cal. 2000); Wyatt v. State, 981 P.2d 109, 115 (Alaska

1999); State v. Wood, 881 P.2d 1158, 1169 (Ariz. 1994).

To sum up, because Christian's hearsay statements were

nontestimonial, we apply Roberts to decide the Confrontation Clause

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issue. The admission of these statements satisfies Roberts because

Christian was unavailable to testify, and the statements were

admitted pursuant to a firmly rooted hearsay exception.

Accordingly, Horton's Confrontation Clause rights were not

violated.

C. Ineffective Assistance of Counsel

Finally, Horton claims that the SJC misapplied federal

law in rejecting his ineffective assistance of counsel arguments

based on defense counsel's failure to call his family members as

alibi witnesses and to interview his school teachers as possible

character witnesses. In assessing these arguments, the SJC applied

its rule that "on a claim of ineffective assistance of counsel in

a case of murder in the first degree, the defendant must show there

was an error in the trial and that the error likely influenced the

jury's decision." Horton, 753 N.E.2d at 127 (citing Commonwealth

v. Wright, 584 N.E.2d 621 (Mass. 1992)). The Wright standard is at

least as generous to the defendant as the federal ineffective

assistance of counsel standard. See Mello v. DiPaulo, 295 F.3d

137, 144-45 (1st Cir. 2002). Because the SJC applied the

appropriate legal standard to Horton's claims, he can only succeed

by demonstrating that the SJC unreasonably applied this standard to

the facts of his case. See supra at 5-6.

The SJC rejected Horton's claims because it determined

that defense counsel had valid reasons for declining to call

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Horton's family members and that Horton was not prejudiced by

defense counsel's failure to interview his teachers. See Horton,

753 N.E.2d at 128-29. Horton argued that his family members would

have established his alibi by testifying that he was home at 10

p.m., the time that the murders occurred. The SJC concluded,

however, that had these witnesses been called they would have been

open to damaging impeachment. Id. at 128. Therefore, it was a

reasonable decision not to call them. Id. The SJC also

determined that interviewing Horton's teachers would not have

benefitted the defense because there would have been testimony of

an unflattering change in Horton's demeanor just prior to the

murders. Id. at 128-29.

As discussed above, to succeed on his ineffective

assistance of counsel claims, Horton must show that his counsel's

performance was deficient and that the deficient performance

prejudiced the defense. See supra at 9-10; Phoenix v. Matesanz,

233 F.3d 77, 81 (citing Strickland, 466 U.S. at 687). "The habeas

court must evaluate the challenged conduct from counsel's

perspective at the time . . . making every effort to eliminate the

distorting effects of hindsight." Lema v. United States, 987 F.2d

48, 51 (1st Cir. 1993) (internal citations and quotations omitted).

It must also start with the presumption that the challenged action

was sound trial strategy. Phoenix, 233 F.3d at 82.

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 The SJC reasonably determined that defense counsel made

a sound decision in declining to call Horton's family members as

alibi witnesses. As we have explained,

The decision whether to call a particular
witness is almost always strategic,
requiring a balancing of the benefits and
risks of the anticipated testimony. The
witness may not testify as anticipated or
the witness's demeanor or character may
impress the jury unfavorably and taint the
jury's perception of the accused; or the
testimony, though sympathetic, may prompt
jurors to draw inferences unfavorable to
the accused.

Lema, 987 F.2d at 54 (internal citations omitted).

Defense counsel interviewed the family members before

deciding that their testimony would not have helped Horton's case.

The proposed alibi testimony would have been open to impeachment

because it was based primarily on vague assertions from Horton's

father on the approximate time of a basketball game. More

important, the proposed testimony would have conflicted with

Horton's own version of events (that he came home at 11 p.m.),

leaving the jury with the option of rejecting the alibi witnesses's

testimony or rejecting Horton's own story. Considering the

possible danger to the defense from calling these witnesses, the

decision to bypass them reasonably could be viewed as legitimate

trial strategy. See Phoenix, 233 F.3d at 82 n.2 (stating that

trial strategy does not constitute ineffective assistance unless

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counsel's decision was "so patently unreasonable that no competent

attorney would have made it").

The SJC was also reasonable in rejecting Horton's claim

concerning defense counsel's failure to interview his teachers.

Despite being told by Horton's father that Horton's teachers could

provide positive character testimony, defense counsel failed to

speak with them. In some instances, the failure of defense counsel

to interview witnesses can establish the deficient performance

prong of the Strickland analysis. See, e.g., Riley v. Payne, 352

F.3d 1313, 1318 (9th Cir. 2003). But even assuming that defense

counsel's performance was deficient in this respect, the error

would not have prejudiced Horton's defense.

The affidavits summarizing the teachers' expected

testimony are mixed. The teachers would have presented a generally

favorable view of Horton as a courteous person and a good student.

But they also would have also testified that Horton seemed

distracted in the days leading to the murders. In particular, one

teacher would have testified that, because of Horton's changed

demeanor, she asked him if "anything was going on," and he

responded that he "was just taking care of business." Testimony of

a noticeable change in Horton's demeanor, just prior to the

murders, likely would have damaged his case more than testimony

about his general good character would have helped. Considering

the limited positive impact (if any) that the character testimony

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would have had, the SJC reasonably concluded that defense counsel's

failure to interview these witnesses likely would not have

influenced the trial outcome. See Siers v. Weber, 259 F.3d 969,

974-75 (8th Cir. 2001) (affirming denial of habeas petition based

on ineffective assistance counsel due to counsel's failure to

interview witnesses where defendant failed to establish prejudice);

United States v. Mitchell, 216 F.3d 1126, 1131 (D.C. Cir. 2000)

(similar); Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th Cir. 1995)

(similar); Galowski v. Murphy, 891 F.2d 629, 638 (7th Cir. 1989)

(similar).

IV. Conclusion

For the reasons set forth above, the judgment of the

district court is affirmed.

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