Matthews v. Rakiey

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-2017

LLOYD MATTHEWS,

Plaintiff, Appellee,

v.

PAUL RAKIEY, ET AL.,
SUPERINTENDENT AT MCI-WALPOLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Linda Nutting Murphy, Assistant Attorney General, with whom Scott

Harshbarger, Attorney General, was on brief for appellant.

Stephen Hrones, orally; Lloyd Matthews on brief pro se for

appellee.

May 8, 1995

STAHL, Circuit Judge. Petitioner Lloyd Matthews
STAHL, Circuit Judge.

was convicted in August 1987 in a Massachusetts trial court

of rape, assault in a dwelling with intent to commit a

felony, and indecent assault and battery. After exhausting

his remedies in the state courts, Matthews sought a writ of

habeas corpus in the district court pursuant to 28 U.S.C.

2254, claiming that he was denied his Sixth Amendment right

to effective assistance of counsel. After referring the

matter to a magistrate-judge for a report and recommendation,

the district court granted the petition, and this appeal

followed. For the reasons discussed below, we reverse.

I.
I.

BACKGROUND
BACKGROUND

A. Pretrial Events

On May 15, 1986, Brenda Barbosa, who was fourteen

years old at the time, reported to Boston police that she had

been attacked in her bedroom by a man with a knife earlier

that morning. Later that same day, after viewing several

hundred photographs in police identification books, Barbosa

identified Matthews, who wears his hair in a distinctive

"dreadlocks" style and was so depicted in the photograph, as

the man who had attacked her. The police obtained an arrest

warrant but, although they knew Matthews's address, made no

immediate attempt to question him about the incident or take

him into custody. Matthews was eventually arrested on May

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28, 1986, when a patrolling officer who had stopped to

question Matthews on the street about unrelated conduct

discovered the outstanding warrant.

The incident report filed by the Boston police

officer who first responded to Barbosa's call (the "incident

report") contains no mention of a sexual assault. The

officer's account of his interview with Barbosa, conducted

within two hours of the incident, is as follows:

[T]he victim . . . stated while she was
sleeping the suspect entered the victim's
bedroom and jumped on top of her. The
victim stated the suspect had a kitchen
knife and told her, "Be quiet, I don't
want nothing from you, you won't get
hurt." The victim further stated the
suspect then pulled the victim from her
bed and ordered the victim to stand in a
corner then the suspect ordered the
victim to stand against a wall. The
victim then stated the suspect started
looking through the rooms on all three
floors. The victim further stated the
suspect then told the victim to close the
door behind him when he left and not to
tell anyone about him. The victim stated
she complied and the suspect fled on foot
to a yellow m/v then fled in an unknown
direction.

The incident report includes a description of the alleged

assailant as a black male, 5'10", black hair and brown eyes,

wearing a black hat, brown leather jacket and black pants.

It does not indicate whether Barbosa mentioned to the officer

that her attacker had dreadlocks.

Matthews was initially charged with armed assault

in a dwelling with intent to commit a felony, and with

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breaking and entering. A probable cause hearing was

conducted in Roxbury District Court on August 4, 1986. There

is no transcript of the hearing in the record. Although the

breaking and entering charge was dropped following the

hearing, Matthews was bound over on the armed assault charge.

Subsequently, grand jury proceedings were initiated on that

charge as well as two new charges apparently based on

Barbosa's testimony at the probable cause hearing: rape of a

child with force, and indecent assault and battery on a

person under 14. At the grand jury proceeding, Boston Police

Detective William Ingersoll -- who oversaw the photo

identification procedure in which Barbosa picked out Matthews

-- testified as follows:

A. . . . At the probable cause hearing
in the Roxbury Court I was not present .
. . and I received a message following
that hearing from the District Attorney
who stated to me that during the probable
cause hearing the victim -- who was
afraid to tell her mother and the police
-- that at the time during this breaking
and entering and assault, the defendant
did assault this young girl, again, 14
years of age.

Q. In what manner?

A. I believe it was placing the fingers
to her vagina, more or less just the
fingers. She did not go to the hospital
to be examined. Again, she is a young
Spanish girl and was ashamed even to tell
the mother.
There was no complaints at that time
for rape in the Roxbury District Court
against him. I was unaware of this fact.

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Barbosa also testified before the grand jury.

Certain aspects of her account of the May 15 events were not

entirely consistent with the second-hand version contained in

the incident report:

A. Well, I was sleeping and I heard the
bedroom door, and when I looked up I seen
this man and he jumped on top of me and
put me against the wall . . . .

. . . .

Q. Did he take anything?

A. The only thing I found missing was my
leather coat, and stuff was in the first
floor.

Q. Do you know whether he took that
coat?

A. I don't really know, but he must have
took it because I couldn't find it; I
looked for it; I asked my sister if she
let someone use it; she said, no.

. . . .

Q. Now, when this man jumped on you, did
he touch you in any way?

A. Yes.

Q. And what part of your body did he
touch?

A. He touched me, all parts.

Q. You[r] chest and your vaginal area?

A. Yes, sir.

Q. Did he put his fingers into your
vagina at some time?

A. Yes.

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Q. When the police came that day, did
you tell the police that day?

A. I told them everything that
happened, like in a way I was -- when I
went to the police station to look at the
pictures I told them what happened.

B. The Trial

On August 17, 1987, Matthews was brought to trial

on the rape, armed assault and indecent assault charges. The

prosecution called two witnesses, Barbosa and Ingersoll, with

Matthews as the only defense witness. Because we must

evaluate the alleged constitutional deficiencies of counsel's

performance in light of his "overall performance throughout

the case," Strickland v. Washington, 466 U.S. 668, 689

(1984), we provide an extensive summary of the trial record.

1. Opening Statements

In his opening statement, the prosecutor told the

jury that immediately after Barbosa's attacker left her

apartment, Barbosa ran next door "and told her sister-in-law

what had happened." Despite strong evidence that Barbosa

never told anyone that she had been sexually assaulted or

raped until she testified at Matthews's probable cause

hearing, 81 days after the incident, Matthews's trial

counsel, Kenneth D'Arcy, did not challenge the prosecutor's

assertions. D'Arcy made clear from the outset that instead

of challenging Barbosa's allegations, he would try to show

that she had mistakenly picked Matthews out of the police

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photograph books because of his distinctive "dreadlocks"

hairstyle. D'Arcy told the jury that "[t]here's no question

in my mind and Mr. Matthews' mind that Brenda Barbosa was

attacked in her bedroom on May 15th. But you're going to

hear from Mr. Matthews that on May 15th he was working in his

father's garage."

2. Barbosa's Testimony

Barbosa, who had reached sixteen years of age by

the time of the trial, testified on direct examination that

she was asleep in her bed about 8:30 a.m. on May 15, 1986,

when she was awakened by a man entering her room. When she

looked up, she saw the man had a knife. The man got on top

of her, put the knife to her throat and told her to be quiet

or he would kill her. The man touched Barbosa's breasts and

put his finger inside Barbosa's vagina. Then, the man pulled

Barbosa off the bed and placed her against a wall, telling

her to stay there while he walked through other rooms of the

house. Barbosa said he took her leather coat, although she

did not say whether she saw him carry the coat away. Barbosa

identified Matthews as the man who attacked her. The

following exchange then ensued:

Q. You went to your sister-in-law's; did
you tell her what happened?

A. Yes.

Q. Did you call the police?

A. Yes, I did.

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Q. You reported this to the police,
didn't you?

A. Yes.

Q. Now, at some point during the day did
you have an opportunity to meet with
Detective Ingersoll of the Boston Police?

A. Yes, I did.

Q. Did you go over what happened with
him? Did you tell him about that?

A. Yes, I did.

Barbosa then testified as to how she picked

Matthews's photograph out of the police books. She said that

she got a good look at her attacker's face; that her attacker

had long hair pinned up under a gray beret-like hat; and that

she had described the man to police as being about five-foot-

eleven with dreadlocks and a hat. Barbosa also testified

that a few days after the attack, the same man came to her

door and rang the doorbell. She said that she "went crazy,

and . . . started crying, and he just left."

In his cross-examination, D'Arcy quickly began his

attempt to show that Barbosa had immediately zeroed in on the

fact that the assailant had dreadlocks:

Q. This man came in, and what's the
first thing you remember about his
physical appearance when you saw him in
your bedroom?

A. I don't really understand what you
mean.

Q. What was the first physical
characteristic that you saw in this man

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when you saw him in the bedroom and he
woke you up and you were afraid; what's
the first thing you recognized about him?

A. The knife.

Q. And then what about a physical
characteristic? After you saw the knife,
and you saw this man with the knife, what
physical characteristic did you remember?

A. I still don't understand what you
mean.

Q. When you describe people --

A. Yes.

Q. -- you describe people as short --

A. Oh, you want me to describe him, like
when he first came in?

Q. Yes, when you first saw this man and
you saw the knife, and you got over the
shock of the knife, and you saw that this
man was in your bedroom and he didn't
belong there --

A. Yes.

Q. -- what physical characteristic of
this man did you first remember -- first
remember?

A. The way he looked, his face, and the
way he was like coming towards me.

Q. What about his hair style?

A. I recognized that too.

Q. The dreadlocks?

A. Yes.

D'Arcy then questioned Barbosa about her

identification of Matthews as her attacker. He elicited the

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not-too-helpful testimony that she had seen other people with

dreadlocks before encountering Matthews, but that they did

not look like him; that she identified Matthews the same day

as the alleged attack; that she "could never forget his

face"; and that she had picked the picture out after viewing

it for just half a second. Before he concluded this line of

questioning, D'Arcy inartfully allowed Barbosa one more

opportunity to tell the jury how certain she was of her

identification of Matthews:

Q. There's no question in your mind that
this is the man that broke into your
house and had a knife in his hand?

A. That's the man.

At that point, D'Arcy changed the focus of his examination

and began to question Barbosa's account of what had happened

and her veracity:

Q. Then did you tell Detective Ingersoll
at that time, you know, that he touched
your private parts at all?

A. I told him what had happened.

Q. Well, did you tell him, you know, as
you told the jury today, that the man
grabbed your private parts?

A. I only told him what he was asking
me.

Q. Is it fair to say, Brenda, that you
really didn't tell Detective Ingersoll
everything that happened when you were
going over the pictures?

A. I told him most everything that
happened.

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Q. But you didn't tell him about the
fact that this man touched your private
parts?

A. No, but I told the other cops when
they came.

Q. When?

A. When it first happened, the cops that
came over to the house. It's right in
the report.

Q. You told them that he had grabbed
you?

A. Yes.

Q. And touched your private parts,
right?

A. Yes.

Although these last four answers were apparently untrue,

D'Arcy did not directly confront Barbosa with any prior

statements or other evidence contradicting her testimony.

3. Ingersoll's Testimony

Ingersoll testified that Barbosa and her sister-in-

law, Carmen Barbosa, came to his office on the afternoon of

May 15 to view photographs. Ingersoll said he "tried to

determine what exactly had happened" and then began showing

Barbosa books containing photographs of black men of the

approximate age that Barbosa had described. Ingersoll

testified that, in his estimation, Barbosa viewed "about 600,

700 photographs." When she turned to the photograph of

Matthews, Ingersoll said, Barbosa "became very excited.

`That's him.' She got up from the table, jumping up and

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down. `That's him, that's him.'" Ingersoll said that the

picture of Matthews matched the general description contained

in the original incident report, and that during her

conversation with Ingersoll prior to viewing the photographs,

Barbosa had mentioned that the attacker had dreadlocks.

On cross-examination, D'Arcy resumed his strategy

of trying to show that Barbosa had picked out Matthews's

picture because of his dreadlocks:

Q. Now, when Brenda Barbosa came in the
station, she gave you a description of
the man that was in her home earlier, had
dreadlocks; do you remember?

A. That's correct.

Q. You don't have any books or just
males with dreadlocks, though; right?

A. No, sir. The space just doesn't
allow it.

. . . .

Q. Did you look at any of the photos
that she looked at, looking for men with
dreadlocks?

A. Not at that particular time, no, sir.
I basically put a lot of the photographs
in the books when we receive them for
identification. I don't make a special
notice of dreadlocks.

Q. Do you know how many men had
dreadlocks in the photos before Miss
Barbosa picked Lloyd Matthews' picture?

A. I have no idea.

Q. It could have been any of them?

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A. It could have been any, could have
been a few, could have been one. I don't
know.

Q. Could have been one, right?

A. The books are set up, Mr. D'Arcy,
only by age, sex and race; that's it.

Q. So you're testifying today that Mr.
Matthews could have been the first male
that had dreadlocks in those photo books;
correct, Detective?

A. Could have been.

Upon further questioning by D'Arcy, Ingersoll testified that

he "kn[e]w for a fact that there are many dreadlocks" in the

photograph books, and that he had "had every confidence in

the world that she would run into dreadlocks." He also

testified that he did not personally arrest Matthews, nor did

he immediately have police officers go to Matthews's home to

arrest him once an arrest warrant issued. Instead, Ingersoll

said, he told another police officer with duty in Matthews's

neighborhood of the warrant, and that officer told Ingersoll

"that he would lock him up when he sees him." Matthews was

ultimately arrested when police stopped to question him on a

Roxbury street on May 28, nine days after the warrant had

issued and thirteen days after the crimes allegedly took

place.

4. The Defense

After the prosecution rested, D'Arcy notified the

court that Matthews was "very upset" with D'Arcy for not

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wanting to recall Barbosa to the stand to question her about

discrepancies between her trial testimony and prior

statements. D'Arcy told the court:

But in my perusal of the grand jury
minutes, I mean -- you know, this is an
identity type of case, your Honor. I
know what the girl has been through.
It's obvious that a crime was committed.
My client's defense is that it's a
misidentity. She testified there was no
question in her mind it was him.
Whether she came downstairs with him
or looked out the window, there's sort of
minor discrepancies as far as I'm
concerned.
It's a disadvantage when you try to
examine young ladies because of the fact
that she's highly emotional. I just feel
-- I disagree with my client. I told him
I didn't want to recall Brenda Barbosa.
You know, the bottom line is that I'm
trying the case and he isn't.
But I just want the record to
reflect that, you know, he's been more
than vociferous that he doesn't agree
with my strategy, shall we say.

D'Arcy then called Matthews to the stand. Matthews

testified that he had worked at his "father" John Wornum's1

auto body shop in Roxbury on and off for years. From April

until July of 1986, Matthews testified, he and a friend,

Chris Cross, were rebuilding a junked car that they

eventually sold to a friend of Wornum. Matthews could not

say specifically that he was working at the shop on the

1. Wornum explained in a post-trial affidavit that he is a
long-time friend of Matthews's family and that Matthews would
sometimes call him his "uncle" or "father" even though the
two are not related.

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morning of May 15, 1986, but he said that it was his usual

practice to open up the shop each morning at 7:30 a.m.

On cross-examination, Matthews explained that he

was paid in cash and had no records or pay stubs proving that

he worked at the body shop. John Wornum, Matthews testified,

had been in Georgia for several months; Wornum's son, Rufus

Wornum, was busy running the shop, and Chris Cross had agreed

to testify on his behalf but had since joined the Marines.

Matthews also testified that he had no records pertaining to

the rebuilt car, and that he did not know the person who

bought it other than that he was a friend of John Wornum.

The prosecutor's final exchange with Matthews was as follows:

Q. You're not specifically testifying as
to where you were on the morning of May
15th, 1986; are you?

A. No, sir.

5. Closing Arguments

Unlike his opening, D'Arcy's summation contained at

least some hints to the jury that perhaps Barbosa's story of

what happened to her was not entirely truthful. After

incorrectly telling the jury that they had "seen a girl

fourteen years old," D'Arcy urged the jurors not to let their

emotions affect their deliberations about

what happened to this girl, if in fact it
did happen. . . .
. . . .
You have to decide did Brenda
Barbosa really tell the truth of
everything that happened. Did she wake

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up and see a fellow there with a knife?
Was it somebody maybe she -- she didn't
go to school that day -- that maybe a
fellow that she was going to go to school
with -- maybe something got carried on
that she didn't expect and she panicked,
because she lived right -- a relative
lived right around the corner.
Did it happen to her? Did she tell
Officer Ingersoll that she had been
sexually assaulted?

D'Arcy did not, however, point to any evidence or prior

statements suggesting that Barbosa was not truthful.

Instead, he discussed at length how a "hysterical" Barbosa

had zeroed in on Matthews's photograph "[a]s soon as she saw

the dreadlocks," and how the failure of the police to arrest

Matthews as soon as Barbosa had identified him was not "fair

play." The near-two-week delay in Matthews's arrest left

Matthews virtually no chance to prove that he was at the body

shop while Barbosa allegedly was attacked, D'Arcy argued.

Toward the end of his argument, D'Arcy again

suggested that this was not just a case of mistaken identity,

but also of truthfulness:

Did you hear any hospital testimony
regarding any physical disability with
Brenda Barbosa? Because I suggest she
didn't tell anybody the day she picked
out Mr. Matthews' picture.
Did you hear any evidence of a lock
being broken or of any damage to her
house that allowed this stranger to come
in? No.

And again:

Ladies and gentlemen, I suggest that
all of these gaps create some doubt, and

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that's the magic word, "doubt", beyond a
reasonable doubt. That's what you have
to be convinced, that Lloyd Matthews was
the individual that came into a room, and
if in fact there was a breaking and
entering, and indecently assaulted Brenda
Barbosa, if in fact she was, and stuck
his finger in her vagina, if in fact that
was done.
Because I suggest a fourteen year
old that this has really happened to,
when she went running out to her
relation, she would have said, "I've been
violated," and she would have been
brought right to the hospital for
examination.
You know, fourteen years old, if
this is what happened. Then from the
hospital the police would have got up
there, and then maybe if she had told all
the truth right away they would have
picked up or investigated Lloyd Matthews
that day.

Had that occurred, D'Arcy argued, Matthews could have proved

where he was the morning of May 15 and refuted the notion

that he was the dreadlocked man who had attacked Barbosa.

The prosecutor recounted how certain Barbosa was of

her identification and the substantial opportunity she had

had to see him when he entered her room and was on top of

her. He told the jury to consider "the sincerity of her

emotions" in testifying:

Keep that picture of her in your
mind. Those were not crocodile tears
that came out of her eyes. Those were
genuine tears based on honesty and
certainty.
Brenda Barbosa came to this court to
seek justice, and you can give her
justice. She is the victim.

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In contrast to Barbosa's sincerity, the prosecutor pointed to

the "vague" nature of Matthews's testimony: "That he worked

at a vague garage, working on a vague Lincoln, making vague

repairs. Nothing to back it up." In the end, the prosecutor

said, the issue for the jury was one of credibility: "You

have to make a determination of who to believe; who was

honest; who was sincere; who was certain; and who was vague."

The jury deliberated for about four-and-one-half

hours before returning verdicts of guilty on all three

counts. Matthews was sentenced to concurrent state prison

terms of 12 to 20 years, 10 to 15 years, and 4 to 5 years.

C. Post-Conviction Proceedings

Matthews moved for a new trial on a number of

grounds, including ineffective assistance of counsel and

newly discovered evidence -- namely, an affidavit from John

Wornum to the effect that he would corroborate Matthews's

testimony that in May 1986, he normally opened the body shop

at 7:30 in the morning, and that on May 15, 1986, Matthews

"would have been working" at the shop when Barbosa was

allegedly attacked. The trial court denied the motion. The

Massachusetts Appeals Court affirmed the conviction, and the

Supreme Judicial Court denied Matthews's petition to obtain

further appellate review.

Having exhausted his state remedies, Matthews filed

his petition for habeas corpus in the district court on

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August 30, 1990. Matthews argued that D'Arcy committed

numerous errors that deprived him of effective assistance of

counsel: 1) failure to impeach Brenda Barbosa with her prior

inconsistent statements; 2) failure to make an effective

closing argument; 3) failure to have Matthews's only alibi

witness, John Wornum, appear and testify at trial; and 4)

failure to prepare adequately for trial and to object to

improper leading questions and to the prosecutor's closing

argument. The respondent argued that D'Arcy's alleged

"errors" were tactical or strategic choices made so as not to

undermine D'Arcy's strategy of pursuing the "dreadlocks"

defense.

An evidentiary hearing was convened on January 15,

1993, but neither party chose to present evidence beyond that

already contained in the record. On March 17, 1993, a United

States Magistrate Judge agreed with virtually all of

Matthews's assertions and, finding that "the culmination of

errors taken as a whole . . . establishes trial counsel's

ineffective assistance in this case," recommended that the

writ be allowed.

The district court adopted the magistrate-judge's

recommended result but not her reasoning. The court found

that D'Arcy had adopted a professionally responsible strategy

by not contesting that Barbosa was sexually assaulted by a

black man with dreadlocks and by seeking instead to suggest

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that, in her subsequent hysteria, she mistakenly selected

Matthews's photograph because his was the first picture of a

man with dreadlocks. The court held that because D'Arcy

relied on the mistaken-identity defense, however, his failure

to investigate Matthews's only alibi witness, John Wornum, or

to seek a continuance in order to do so, was not ascribable

to any strategic reason and therefore constituted

constitutionally deficient assistance of counsel that

prejudiced Matthews.

The respondent appealed, arguing that Wornum's

affidavit contained no indication that his testimony would

provide an alibi for Matthews. Matthews filed two briefs pro

se, one as appellee urging that we affirm the district

court's order, and another as appellant asking that we grant

the petition on the grounds recommended by the magistrate-

judge but rejected by the district court.

II.
II.

DISCUSSION
DISCUSSION

A. Governing Principles

To establish a Sixth Amendment violation of the

right to effective assistance of counsel, a defendant must

show: (1) that counsel's performance fell below an objective

standard of reasonableness; and (2) that prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Scarpa

v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied, 115 S.

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Ct. 940 (1995). Among the basic duties of an attorney is "to

bring to bear such skill and knowledge as will render the

trial a reliable adversarial testing process." Strickland,

466 U.S. at 688.

In evaluating the reasonableness of an attorney's

performance, we "indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged

action `might be considered sound trial strategy.'" Id. at

689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

We must make "every effort . . . to eliminate the distorting

effects of hindsight" and to evaluate counsel's conduct from

his or her perspective under the circumstances as they

existed at that time. Id.

We say that a defendant was prejudiced by his

lawyer's substandard performance if he can show that, but for

counsel's errors, "there is a reasonable probability . . .

that the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome."2 Id. at 694. See

2. Counsel for the respondent, an assistant attorney general
for the Commonwealth of Massachusetts, dropped the
"reasonable probability" language from this standard and
misleadingly suggested to us that Strickland requires the

defendant to prove that "but for" counsel's inadequacies, the
verdict would have been different. Brief for the

Respondent/Appellant at 9. Strickland expressly rejected a

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also Scarpa, 38 F.3d at 8. "In making this determination, a

court . . . must consider the totality of the evidence before

the judge or jury." Strickland, 466 U.S. at 695. As "both

the performance and prejudice components of the

ineffectiveness inquiry are mixed questions of law and fact,"

id. at 698, we review these issues de novo. Scarpa, 38 F.3d

at 9.

B. D'Arcy's Performance

Matthews concedes that the central issue in the

case was the identity of the attacker. What he challenges is

D'Arcy's decision to use the "dreadlocks" defense to attempt

to persuade the jury that Barbosa had misidentified Matthews,

rather than focusing on the apparent inconsistencies of her

prior statements and her failure to report the alleged rape

immediately. D'Arcy's decision to employ the dreadlocks

strategy was not a professionally reasonable choice, Matthews

claims, because D'Arcy possessed no evidence that Barbosa had

picked Matthews's photograph out because of his hairstyle.

D'Arcy had no knowledge of how many pictures of men with

dreadlocks Barbosa had seen before identifying Matthews, and

the police report contains no indication that Barbosa had

mentioned dreadlocks in her initial description of the

attacker, thus undermining the argument that the hairstyle

more-likely-than-not outcome-determinative standard. 466
U.S. at 693.

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was the predominant feature. Therefore, Matthews argues,

instead of concealing the fact that Barbosa did not mention

dreadlocks initially, D'Arcy should have driven this point

home to the jury and called into question Barbosa's powers of

observation. Furthermore, Matthews maintains, D'Arcy should

have questioned Barbosa about the discrepancy between the

police report's version of when she initially saw her

attacker, and her own testimony -- i.e., whether she was

awakened by a man entering her bedroom and jumping on top of

her, or whether she heard the door, and thus had a longer

time to view her attacker -- and he should have called into

question Barbosa's truthfulness generally by impeaching her

regarding her delay in reporting the alleged rape. Finally,

Matthews argues, D'Arcy should have marshalled an effective

closing argument underscoring the inconsistencies in

Barbosa's prior statements, rather than delivering a

disjointed speech that, Matthews claims, bordered on an

invitation to convict.

We disagree that D'Arcy's strategic choice to

employ the "dreadlocks defense" was professionally

unreasonable. That it was not ultimately a winning strategy

is of no moment in assessing its reasonableness at the time,

see United States v. Natanel, 938 F.2d 302, 310 (1st Cir.

1991), cert. denied, 502 U.S. 1079 (1992). D'Arcy had little

to work with, given the persuasive power of Barbosa's

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identification testimony and the inherent weakness of

Matthews's alibi, and he chose what he thought was a

reasonable line of argument that carried with it little risk

of alienating the jury. A strategic choice that would have

included more direct attacks on Barbosa's credibility and,

inevitably, her character, would have carried with it a far

greater risk of offending the jury. Thus, we hold that, in

choosing to emphasize Matthews's dreadlocks as the reason

that Barbosa identified him as her attacker, rather than

highlighting alleged inconsistencies in Barbosa's trial

testimony and her prior statements, D'Arcy employed a

professionally reasonable strategy and did not, by virtue of

that choice alone, deprive Matthews of effective assistance

of counsel.

Matthews also argues, however, that D'Arcy did in

fact challenge Barbosa's credibility -- by questioning her

about her apparent failure to report immediately that she was

raped, and by arguing this point to the jury -- and that

therefore D'Arcy's failure to impeach Barbosa more directly,

or at least to introduce the impeaching evidence through

another witness, cannot be deemed a strategic choice. We

agree that the record makes clear that D'Arcy did attempt to

elicit from Barbosa an admission that she did not immediately

report the rape. Indeed, D'Arcy successfully forced Barbosa

to change her testimony and admit that she had not, in fact,

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told Detective Ingersoll about the rape. The question we

must address, however, is whether, once Barbosa went on to

testify that she had told the police who had initially

responded to her call that she was raped, and that "it's

right in the report," D'Arcy's failure to demonstrate to the

jury that these statements were apparently untrue constitutes

ineffective assistance of counsel. Put another way, the

issue is whether it may be considered acceptable trial

strategy to have questioned Barbosa about her delay in

reporting the rape without impeaching her when the answers

she gave were not favorable to Matthews.

Bearing in mind that the defendant must overcome "a

strong presumption" that D'Arcy's conduct "falls within the

wide range of reasonable professional assistance,"

Strickland, 466 U.S. at 689, we are unable to come to any

conclusion other than that Matthews has not done so here. To

be sure, there were points to be scored against Barbosa's

credibility after she insisted that she had in fact

immediately told police that she had been raped. D'Arcy

could have confronted her with the incident report containing

no mention of a rape, or he could have asked her about her

testimony at the probable cause hearing. He also could have

questioned Ingersoll about when he first learned that Barbosa

claimed to have been raped. But, as D'Arcy made clear to the

trial judge at a sidebar conference following the close of

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the prosecution's case, Matthews's primary defense remained

that Barbosa had picked out the wrong assailant, and not that

she had not been attacked at all. While Barbosa's delay in

reporting that she was raped might have affected the jury's

assessment of her overall credibility as a witness, we think

this would be much more likely if the primary issue had been

consent. Here, the primary issue, and the heart of the

defense's theory, was not whether a crime occurred but rather

who committed it. Moreover, the record makes apparent that

Barbosa was quite obviously upset on the witness stand as she

retold her experience; this circumstance, along with

Barbosa's youth (rendering her failure to report a rape

immediately all the more explicable), diminishes the

likelihood that the jury would doubt that such an attack

occurred simply because Barbosa delayed in reporting it.

D'Arcy had to balance the limited evidentiary value of

Barbosa's delay against the danger of the jury misperceiving

an impeachment attempt as badgering or callously tarnishing

Barbosa. Another lawyer might have struck a different

balance, but we do not find that D'Arcy's on-the-spot

decision to let Barbosa's answer stand and argue the

inference he had raised to the jury was "beyond the wide

range of reasonable professional assistance."3

3. Our dissenting brother conveniently overlooks that part
of Barbosa's identification testimony in which she claimed
that Matthews made a second trip to her home, only to be

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The other alleged inconsistencies in Barbosa's

statements that Matthews claims D'Arcy should have raised are

trivial, and thus D'Arcy's decision not to question Barbosa

about them was a sound tactical choice. That the incident

report, prepared immediately after the attack, contains no

mention of dreadlocks, is inconsequential in light of the

fact that Barbosa told Ingersoll before viewing any

photographs that her attacker had dreadlocks. Furthermore,

dissuaded from entering by her frightened response to his
appearance at her door. Given the strength of her
identification of him as her assailant, it was essential that
counsel try to deflate this aspect of Barbosa's testimony.
Moreover, it is a misstatement to say that there was
"irrefutable evidence" that Barbosa failed to report the rape
for an eighty-one day period. While the initial police
record does not indicate that a rape was part of the physical
attack, and Ingersoll's grand jury testimony was that his

first knowledge of that part of the attack came as a result
of the probable cause hearing, there is nothing in the record
stating unequivocally that Barbosa had not told other
authorities of the alleged rape prior to the probable cause
hearing.
Finally, we respond to our brother's assertion that
we give "too much credence to certain ageist and sexist
assumptions -- that it would be improper to question closely
(and risk arousing the emotions of) a young female sexual
assault victim . . . ." First, our assessment of the
reasonableness of D'Arcy's strategy would be no different had
the victim been a fourteen-year-old boy. Second, lawyers
must devise their strategies in light of how real jurors

might react -- not necessarily politically correct ones. The
dissent suggests that a lawyer who considers the
unfashionable assumptions and reactions of jurors in crafting
a strategy deserves less deference than does a lawyer who
ignores them or decides that the jury will rise above them.
We disagree. We do not dispute that D'Arcy could reasonably

have chosen a strategy involving more aggressive and complete
impeachment; not doing so, in this case, was also within the

"wide range" of reasonable professional choices recognized by
the Strickland Court.

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to point out this "inconsistency" would have only weakened

D'Arcy's argument that it was the dreadlocks that had in fact

caused Barbosa to pick Matthews's picture out of the

photograph books. As for the "inconsistency" between when

Barbosa initially told police she was awakened and her

testimony in court, we note that the incident report's

statement that "while [Barbosa] was sleeping the suspect

entered the victim's bedroom and jumped on top of her" is a

hearsay account of what Barbosa said immediately after the

attack, and, even if true, would only have deprived her of a

few seconds of the time she claimed to have viewed her

attacker. She still was able to view him while he was on top

of her; at various times while he searched the apartment; and

when he returned to Barbosa's home on the weekend. Thus,

D'Arcy's decision to eschew questioning on these matters was

a sound trial tactic.

Finally, we address the grounds on which the

district court actually granted the writ: D'Arcy's failure

to call John Wornum, or to request a continuance so that he

could do so. Here, we disagree with the district court's

conclusion; we cannot see how Matthews was prejudiced.

Wornum's testimony would have corroborated Matthews's

testimony in general -- i.e., that there actually was a

Crossing Auto Body Shop, and that Matthews actually worked

there, and perhaps even that he generally opened the shop

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early in the morning -- which would have taken some of the

wind out of the sails of the prosecutor's closing argument,

in which he cast doubt on the entirety of Matthews's

testimony. Wornum's affidavit makes clear, however, that he

could not provide an alibi for Matthews on the particular day

of the crime. Matthews argues that Wornum's testimony is all

the more credible because he does not pretend to be able to

say for sure where Matthews was on a particular morning

several years ago. That may be true, but it is far less

probative of Matthews's innocence. Moreover, a jury might

have drawn a negative inference from the things that Wornum's

affidavit does not indicate he is willing to testify to:

namely, the identity of the purchaser of the car Matthews

says he was rebuilding around the time of the crime, or any

other information regarding the car's purchase and sale.

Thus, while Wornum's testimony might have been, on balance,

of marginal utility to Matthews, his affidavit does not

create in us any belief that there is a reasonable

probability that the outcome would have been different had he

testified.4

4. We have also considered Matthews's claims that he was
deprived of effective assistance of counsel by D'Arcy's
"incoherent" closing argument, his lack of preparation and
his overall performance throughout the course of the trial.
Even if Matthews is correct that D'Arcy's performance in
these areas was deficient, Matthews has not demonstrated, and
the record does not lead us to believe, that the was a
reasonable probability of a different outcome if D'Arcy had
performed differently.

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IV.
IV.

CONCLUSION
CONCLUSION

For the foregoing reasons, we conclude that

Matthews was not deprived of his Sixth Amendment right to

effective assistance of counsel, and the decision of the

district court is

Reversed.
Reversed.

Dissent follows.

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BOWNES, Senior Circuit Judge, dissenting. I agree
BOWNES, Senior Circuit Judge

with the majority that D'Arcy's failure to call John Wornum,

when examined in isolation, did not violate the Sixth

Amendment. I strongly disagree, however, that the

complained-of acts and decisions of D'Arcy, when viewed in

the aggregate, "f[ell] within the wide range of reasonable

professional assistance" and constituted "sound trial

strategy." See Strickland v. Washington, 466 U.S. 668, 689

(1984). Furthermore, I am convinced that, but for D'Arcy's

unsound performance, "there is a reasonable probability that

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

at 694. I therefore dissent from the majority opinion. In

explaining my dissent, I shall limit myself to three points

not made in the extremely thorough and well-reasoned report

and recommendation of Magistrate Judge Bowler, the relevant

portion of which I attach as an appendix to my dissent. See

Matthews v. Rakiey, Civil Action No. 90-12111-WF (D. Mass.

filed March 17, 1993). Magistrate Judge Bowler's opinion

combines an accurate exposition of the facts with a correct

statement of the applicable legal principles.

I.
I.

The majority opinion makes clear that D'Arcy

declined to submit irrefutable evidence, readily available to

him, that Barbosa waited eighty-one days to report the rape

and that Barbosa testified untruthfully as to when she first

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informed the police and her sister-in-law that she had been

raped. In considering whether D'Arcy's inaction was

substandard under Strickland's first prong, the majority

employs a false assumption. The majority excuses D'Arcy's

tactics in part by pointing out that he pursued a

misidentification defense (the "dreadlocks defense") and did

not really challenge Barbosa's rape allegation. See ante at

25 ("Matthew's primary defense remained that Barbosa had

picked out the wrong assailant, and not that she had not been

attacked at all. While Barbosa's delay in reporting that she

was raped might have affected the jury's assessment of her

overall credibility as a witness, we think this would be much

more likely if the primary issue had been consent. Here, the

primary issue, and the heart of the defense's theory, was not

whether a crime occurred but rather who committed it."). It

then concludes that, in the context of the

misidentification/dreadlocks defense, D'Arcy's failure to

expose the glaring inconsistencies in Barbosa's testimony and

prior statements was not "beyond the wide range of reasonable

professional assistance." Id. at 25-26.

Obviously, this line of reasoning tacitly assumes

the soundness of D'Arcy's decision not to question whether

Barbosa had in fact been raped. Such an assumption is not

warranted in this case for the following reasons. First, the

two defenses would not have been inconsistent. There would

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have been nothing inherently suspect about arguing that

Barbosa had identified the wrong man and that she had not

been, or may not have been, raped. Second, there was

significant evidence tending to undermine Barbosa's account

of the sexual assault. Had the jury been fully apprised of

the irregularities surrounding the reporting of the rape

charge, it may well have concluded that it could not convict

Matthews of rape beyond a reasonable doubt. Third, D'Arcy

did argue to the jury, albeit as an afterthought, that

Barbosa may not have been raped. See id. at 15-16

(excerpting portions of closing argument where D'Arcy asks

the jury to consider whether a rape took place). In view of

this last fact alone, I am puzzled by the majority's

conclusion that D'Arcy's refusal to buttress his argument

with significant supporting evidence constituted "sound trial

tactics." D'Arcy ultimately thought the "rape may not have

happened" theory worth arguing; how then could it not have

been worth supporting with evidence that was available?

I do not think that the existence of one reasonable

defense strategy, without more, establishes constitutionally

effective representation.

II.
II.

I also disagree with the majority's conclusion

that, within the confines of the misidentification/dreadlock

defense, D'Arcy's failure to impeach Barbosa passed

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constitutional muster. The case hinged on Barbosa's

credibility as a witness, and I simply do not see how it

could have been "sound" for D'Arcy to fail to demonstrate to

the jury that Barbosa had testified untruthfully on several

very important matters (including when she first informed the

police and her sister-in-law that she had been raped). He

certainly could have done so sensitively and without

suggesting improper motive on Barbosa's part. The omitted

impeachment evidence could have been easily introduced as

further confirmation of that which D'Arcy had already

suggested to the jury: the trauma of awakening to find an

intruder in the room quite reasonably rendered suspect

Barbosa's powers of perception and recall.

This leads to a second point. The majority, in my

opinion, gives too much credence to certain ageist and sexist

assumptions -- that it would be improper to question closely

(and risk arousing the emotions of) a young female sexual

assault victim, and that the jury cannot rise above its

sympathy for young female sexual assault victims and do its

assigned job -- that heavily informed D'Arcy's performance

and decision-making. Along these lines, I note the

majority's conclusion that Barbosa's age "render[s] her

failure to report the rape immediately all the more

explicable." Id. at 25. The explicability vel non of

Barbosa's failure to report the rape immediately -- as well

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as Barbosa's failure to testify truthfully about when she

first reported the rape -- had vital bearing on Barbosa's

credibility. It should have been left to the jury's

consideration after argument by counsel. In my opinion, a

reviewing court has no business explaining this failure away,

without citation to supporting authority, as an

understandable by-product of youth.

While counsel must tread carefully in questioning

the alleged victim in cases such as this, counsel cannot

abdicate the constitutional responsibilities of a defense

attorney. The record amply demonstrates that D'Arcy was more

concerned with the young victim's emotional state than

providing his client with a vigorous defense, and that his

hands-off approach to the case led to a constitutionally-

defective performance. The sentiments that prompted D'Arcy's

ineffectiveness may be understandable. They cannot, however,

be tolerated in our criminal justice system.

III.
III.

The majority opinion does not discuss D'Arcy's

failure to object to the prosecutor's closing argument, and

Magistrate Judge Bowler evaluates this failure only insofar

as the argument mischaracterized the evidence. I think it

important to note that the closing contained both an improper

appeal to the jury to act other than as a dispassionate

arbiter of the facts and an improper and inflammatory appeal

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to the jury's emotions. Neither type of argument is

permissible. See, e.g., United States v. Manning, 23 F.3d

570, 573 (1st Cir. 1994) (prosecutor may not ask jury to act

other than as a dispassionate arbiter of the facts); Arrieta-

Agressot v. United States, 3 F.3d 525, 527 (1st Cir. 1993)

(prosecutor may not inflame the prejudices and passions of

the jury).

Here, the prosecutor told the jury: "Keep that

picture of [Barbosa] in your mind. Those were not crocodile

tears that came out of her eyes. Those were genuine tears

based on honesty and certainty. Brenda Barbosa came to this

court to seek justice, and you can give her justice. She is

the victim." See ante at 17. Perhaps because the concept of

"tears of certainty" is new to me, I regard the first three

sentences of the quotation as an ill-concealed and

inflammatory entreaty for jury sympathy. And the last two

sentences of the quotation are at worst an appeal for

vengeance and at best a request that the jury do something

other than dispassionately judge the facts for itself.

In a case as close as this one, these improper

arguments could have made a real difference. D'Arcy's

failure to object to them was another error in the long line

of trial mistakes that show his incompetency beyond cavil.

Appendix Follows
Appendix Follows

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