Sanna v. DiPaulo

United States Court of Appeals
For the First Circuit

No. 01-1008

MICHAEL J.F. SANNA,

Petitioner, Appellant,

v.

PAUL DIPAOLO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Donald A. Harwood for appellant.
William J. Meade, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Thomas F. Reilly, Attorney General,
was on brief, for appellee.

September 10, 2001
 SELYA, Circuit Judge. Petitioner-appellant Michael

J.F. Sanna, a state prisoner, appeals from the denial of his

application for habeas corpus. His arguments here mirror those

that he unsuccessfully made below: that the Commonwealth failed

to provide him a full and fair opportunity to litigate his

Fourth Amendment claim, that the police violated his Miranda

rights, and that the state trial court's failure properly to

instruct the jury as to the effect of his possible intoxication

deprived him of due process. In light of the special rules that

the Supreme Court has established for collaterally reviewing

claims of error involving the Fourth Amendment and the

exclusionary rule, see Stone v. Powell, 428 U.S. 465, 481-82

(1976), and the strictures of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110

Stat. 1214, we find the petitioner's plaints unpersuasive.

Accordingly, we affirm the district court's denial of the writ.

I. BACKGROUND

The facts underlying the petitioner's conviction for

first-degree murder are extensively chronicled in the opinion of

the Massachusetts Supreme Judicial Court (SJC), see Commonwealth

v. Sanna, 674 N.E.2d 1067, 1070-71 (Mass. 1997), and we refer

the reader who hungers for exegetic detail to that opinion. For

present purposes, it suffices to sketch the events leading to

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the petitioner's arrest and conviction (resolving conflicts in

the evidence favorably to the state courts' findings), and

thereafter limn the travel of the case.

A. The Facts.

On October 12, 1991, Abington police officers entered

the apartment of the petitioner's seventy-four year old great

uncle, Mario diCicco, and found his body lying in a pool of

blood. An autopsy revealed that diCicco had been stabbed

thirty-four times and bludgeoned repeatedly with a blunt

instrument. The police matched fingerprints found at the crime

scene with those of the petitioner.

Two officers thereupon visited the residence of the

petitioner's parents, not pausing to procure a warrant. When

they arrived, the petitioner's father approached them, engaged

in a brief interchange, and invited them into the house. Once

inside, the officers spied the petitioner lying on a couch,

covered by a blanket. One of the policemen removed the blanket

and asked the petitioner to stand. After noticing cuts and

scratches, the officers arrested the petitioner and read him his

Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45

(1966). The petitioner vouchsafed his understanding of those

rights.

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 The officers then transported the petitioner to the

Abington police station. They again explained his Miranda

rights and inquired whether he wished to make a call. The

petitioner demurred. Interrogation ensued and, within the next

few hours, the petitioner admitted that he had killed diCicco.

After recounting the details of the slaying, he told the

officers for the first time that he had an attorney. 1 They

immediately offered to contact the lawyer, but the petitioner

refused the offer. The police then secured a warrant to search

the petitioner's home and automobile. The search revealed

additional inculpatory evidence.

B. The Travel of the Case.

Following his indictment, the petitioner filed motions

to suppress both his incriminating statements and the physical

evidence garnered as a result of the searches. A four-day

evidentiary hearing ensued. Several months later, the state

court judge handed down a closely reasoned rescript denying the

motions to suppress.

1This point was hotly disputed in the trial court. The
petitioner's father testified that, as the police were escorting
the petitioner to their unmarked car immediately after taking
him into custody, he loudly asked his father to call his
attorney. The officers denied having heard any such
importuning, and the state court judge specifically found that
the petitioner had not mentioned a lawyer until after he had
confessed. See Sanna, 674 N.E.2d at 1070 n.5.

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 The petitioner's trial took place late in 1993. Under

Massachusetts law, "[m]urder committed with deliberately

premeditated malice aforethought, or with extreme atrocity or

cruelty, or in the commission or attempted commission of a crime

punishable with death or imprisonment for life" can comprise

first-degree murder. Mass. Gen. Laws ch. 265, § 1. The jury

found the petitioner guilty of first-degree murder by reason of

extreme atrocity and cruelty. The trial court sentenced him to

life imprisonment. On direct review, the SJC affirmed. Sanna,

674 N.E.2d at 1071-74.

On January 9, 1998, the petitioner filed an application

for a writ of habeas corpus under 28 U.S.C. § 2254. The

respondent, a state correctional official, moved to dismiss on

the ground, inter alia, that the application failed to limn a

cognizable claim for federal habeas relief. On December 14,

2000, the district court, adopting a magistrate judge's report

and recommendation, granted the motion to dismiss. The court

thereafter issued a certificate of appealability covering the

three issues to which we have alluded. See 28 U.S.C. §

2253(c)(1). This proceeding followed.

II. THE AEDPA STANDARD

In 1867, Congress authorized the federal courts to

grant writs of habeas corpus at the behest of state prisoners

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held in violation of either the United States Constitution or

federal law. While the procedural framework for federal habeas

relief has changed over time, the scope of the federal courts'

jurisdiction has remained intact. Williams v. Taylor, 529 U.S.

362, 374-75 (2000). Recently, however, the Supreme Court has

clarified that the incidence of constitutional error in a state

criminal trial does not, in itself, justify federal habeas

relief. See id. The AEDPA amendments, which took effect on

April 24, 1996, elevated the importance of this principle and

widened the area within which federal habeas courts must defer

to state court decisions (whether or not erroneous). See

O'Brien v. DuBois, 145 F.3d 16, 20 (1st Cir. 1998).

Two of the situations in which the AEDPA authorizes a

federal court to grant habeas redress are pertinent here. One

such situation arises when the underlying state court

adjudication "resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States." 28 U.S.C. § 2254(d)(1). This, in turn, provides two

possible pathways to habeas relief. A federal court may ask

whether there was an established Supreme Court precedent and

grant relief if it determines that the state court's decision

contravened that precedent. Williams v. Taylor, 529 U.S. at

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376-78; Williams v. Matesanz, 230 F.3d 421, 424-25 (1st Cir.

2000); O'Brien, 145 F.3d at 24. If there is no Supreme Court

case on point or if there is one and the state court correctly

characterized it, the federal court nonetheless may grant the

writ based upon a determination that the state tribunal applied

the Supreme Court precedent in an unreasonable manner. Taylor,

529 U.S. at 376-78; Matesanz, 230 F.3d at 424-25; O'Brien, 145

F.3d at 24.

The AEDPA also allows collateral relief in a quite

different situation: when a federal habeas court determines

that a state court adjudication "resulted in a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding." 28

U.S.C. § 2254(d)(2). It is worth noting, however, that these

words cannot be read in a vacuum; they must be interpreted in

conjunction with a companion subsection specifying that "a

determination of a factual issue made by a State court shall be

presumed to be correct," and that "[t]he applicant shall have

the burden of rebutting the presumption of correctness by clear

and convincing evidence." Id. § 2254(e)(1); see also Coombs v.

Maine, 202 F.3d 14, 18 (1st Cir. 2000) (discussing and applying

these provisions). For this purpose, "facts" are defined as

"basic, primary, or historical facts: facts in the sense of a

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recital of external events and the credibility of their

narrators." Bryson v. Ward, 187 F.3d 1193, 1211 (10th Cir.

1999) (citation and internal quotation marks omitted).

III. ANALYSIS

The petitioner contends that his conviction is thrice

tainted by constitutional error because (i) his warrantless

arrest was unconstitutional, (ii) his Miranda rights were

transgressed, and (iii) his due process rights were offended by

the jury instructions on malice. 2 We address each of these

contentions in turn.

A. The Fourth Amendment Claim.

The petitioner's first argument — that the state court

should have excluded the evidence (including his confession and

the fruit of the subsequent searches of his home and car) that

resulted from his warrantless arrest — falls into a special

category. Federal habeas jurisdiction has distinct

characteristics, and principles of finality, federalism, and

comity inform its scope. See Brecht v. Abrahamson, 507 U.S.

619, 633-35 (1993); Teague v. Lane, 489 U.S. 288, 308-10 (1989).

2
The petitioner raised another ground for habeas relief
below — a ground that related to the prosecutor's allegedly
improper summation. He does not repeat that argument here and,
in all events, it is not among the issues listed in the
certificate of appealability. Consequently, we deem that ground
waived. See Bui v. DiPaolo, 170 F.3d 232, 236-37 (1st Cir.
1999).

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In constructing this balance in respect to claims premised on

violations of the Fourth Amendment, the Supreme Court has

recognized that the prophylactic remedy for such violations

typically available on direct review — the exclusion of the

evidence derived, directly or indirectly, from the violation —

is designed to deter law enforcement personnel from disregarding

constitutional mandates. See Mapp v. Ohio, 367 U.S. 643, 658-59

(1961). The exclusionary rule is not without its vices,

however; most notably, it too often results in keeping relevant,

reliable information from the factfinder. Stone v. Powell, 428

U.S. 465, 489-90 (1976). The Stone Court reasoned that this

cost far exceeds the marginal increase in deterrent effect that

might result from extending the exclusionary rule to habeas

proceedings. Id. at 493-95. The Court therefore concluded

that,

where the State has provided an opportunity
for full and fair litigation of a Fourth
Amendment claim, the Constitution does not
require that a state prisoner be granted
federal habeas corpus relief on the ground
that evidence obtained in an
unconstitutional search or seizure was
introduced at his trial.

Id. at 482.

Stone thus stands for the proposition that a federal

habeas court ordinarily cannot revisit a state court's

disposition of a prisoner's Fourth Amendment claims. Withal,

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this proposition is not absolute: there is an exception for

instances in which a habeas petitioner had no realistic

opportunity to litigate his Fourth Amendment claim fully and

fairly in the state system. Palmigiano v. Houle, 618 F.2d 877,

881-82 (1st Cir. 1980); Breest v. Helgemoe, 579 F.2d 95, 98 (1st

Cir. 1978). This exception survives the passage of the AEDPA.

See, e.g., Herrera v. LeMaster, 225 F.3d 1176, 1178 (10th Cir.

2000); Seymour v. Walker, 224 F.3d 542, 553 (6th Cir. 2000).

The petitioner asseverates that his case avoids the

Stone bar because the Commonwealth deprived him of the

opportunity for full and fair litigation of his Fourth Amendment

claim. The district court rejected this asseveration, and we

review de novo its holding that the state courts afforded the

petitioner a sufficient opportunity to litigate his Fourth

Amendment claim. See Miranda v. Cooper, 967 F.2d 392, 401 (10th

Cir. 1992).

The petitioner bears the burden of proving that his

case fits within the contours of the exception. See Palmigiano,

618 F.2d at 881-83. He cannot carry that burden here. In the

state superior court, the petitioner filed two separate pretrial

motions to suppress evidence harvested as the fruit of the

alleged illegality. After allowing discovery and holding a

four-day evidentiary hearing on the merits of the petitioner's

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plaints, the superior court judge issued a reasoned opinion

crediting the police officers' testimony and finding that the

petitioner's father voluntarily invited the officers into his

home. On direct appeal, the SJC pondered the petitioner's plea

yet again and found it wanting. Sanna, 674 N.E.2d at 1072. In

so holding, the court specifically rejected the petitioner's

argument, based upon Payton v. New York, 445 U.S. 573, 583-603

(1980), that the officers tricked his father into consenting to

the entry by failing to inform Mr. Sanna fully of their

intention to arrest his son. Sanna, 674 N.E.2d at 1073. We

hardly can imagine a more thorough set of procedures for the

litigation of a Fourth Amendment claim — and the petitioner,

represented by counsel throughout, took full advantage of them.

Faced with this obviously adequate procedural

framework, the petitioner mounts a rather curious offensive.

Instead of questioning the state process, he challenges the

state court's factual findings. In his view, no reasonable

factfinder could have concluded that his father consented to the

officers' warrantless entry.

This challenge fails. Although a federal habeas court

may inquire into the adequacy and fairness of available state

court procedures for the adjudication of Fourth Amendment

claims, its inquiry ordinarily ends upon a determination that

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those procedures pass muster. See Pignone v. Sands, 589 F.2d

76, 79 (1st Cir. 1978). Put another way, "a full and fair

opportunity" to litigate means that the state has made available

to defendants a set of procedures suitably crafted to test for

possible Fourth Amendment violations. Id. So long as a state

prisoner has had an opportunity to litigate his Fourth Amendment

claims by means of such a set of procedures, a federal habeas

court lacks the authority, under Stone, to second-guess the

accuracy of the state court's resolution of those claims. See

Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) (holding

habeas review precluded if state provides a suitable procedure

for full and fair opportunity to litigate Fourth Amendment

claims, regardless of whether the petitioner employs that

procedure). Hence, the mistaken outcome of a state court

suppression hearing, standing alone, cannot be treated as a

denial of the opportunity fully and fairly to litigate a Fourth

Amendment claim (and, thus, cannot open the door to federal

habeas review). Willett v. Lockhart, 37 F.3d 1265, 1270 (8th

Cir. 1994) (en banc); Palmigiano, 618 F.2d at 882; Pignone, 589

F.2d at 79; United States ex rel. Petillo v. New Jersey, 562

F.2d 903, 906 (3d Cir. 1977).

The petitioner endeavors to make two separate end runs

around this doctrinal obstacle. First, he attaches decretory

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significance to a footnote (footnote 36) in which the Stone

Court employed a "cf." citation to Townsend v. Sain, 372 U.S.

293 (1963). See Stone, 428 U.S. at 494 n.36. We do not gainsay

that Townsend is an important precedent: it guides federal

habeas courts in determining when it is necessary to hold

evidentiary hearings in habeas cases. See Townsend, 372 U.S. at

315. Among other things, the requirement for such a hearing can

be triggered when "the state factual determination is not fairly

supported by the record as a whole." Id. at 313. But the case

law clearly indicates that the Stone Court's subtle and indirect

reference to Townsend does not serve to incorporate the Townsend

standard into the Stone holding for all purposes. See

Palmigiano, 618 F.2d at 881; O'Berry v. Wainwright, 546 F.2d

1204, 1212 (5th Cir. 1977). Indeed, the petitioner's broader

reading of footnote 36 not only is unsupported by respectable

authority but also would result in an exception capable of

swallowing Stone in a single gulp. Accordingly, we hold that,

notwithstanding footnote 36, a habeas petitioner cannot elude

Stone where his sole complaint is that the outcome of a

perfectly satisfactory state process was erroneous. See

Willett, 37 F.3d at 1270.

The petitioner's second attempt to skirt Stone fares

no better. The petitioner notes that, Stone notwithstanding,

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there is some authority permitting a federal habeas court to

hear a state prisoner's Fourth Amendment claim if the petitioner

can show an irretrievable breakdown in the process provided by

the state. See, e.g., Sweet v. Delo, 125 F.3d 1144, 1152 (8th

Cir. 1997) (en banc); Gates v. Henderson, 568 F.2d 830, 840 (2d

Cir. 1977). This is a sound rule — but it is a rule of last

resort, to be applied sparingly. More to the point, it has no

place in this case. The petitioner concedes the general

efficacy of the procedures used by the Massachusetts courts to

test the validity of Fourth Amendment claims, and does not

suggest that those procedures were inoperative in his case. To

cinch matters, the petitioner's insufficiency of the evidence

claim, even on the dubious assumption that it has merit, surely

does not constitute the type of egregious and unconscionable

collapse in the machinery of adjudication which might warrant a

federal habeas court in invoking the narrow irretrievable

breakdown exception.

We have said enough on this score. Because the

petitioner had — and exercised — an ample opportunity to

litigate his Fourth Amendment claim fully and fairly in the

state courts, the district court appropriately prohibited him

from relitigating that claim in his federal habeas proceeding.

B. The Miranda Claim.

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 The petitioner next challenges the state courts'

conclusion that the police did not impermissibly disregard his

invocation of the right to counsel. Broadly speaking, the

Constitution dictates that when a person in police custody

requests the presence of an attorney, the authorities must cease

interrogation. Edwards v. Arizona, 451 U.S. 477, 484 (1978).

At the suppression hearing, the petitioner's father claimed that

the petitioner invoked this right, within the officers' earshot,

by shouting to his father to call the petitioner's attorney.

See supra note 1. The petitioner contends that the officers'

decision to continue interrogating him after he had made this

request violated Edwards.

We need not consider whether the petitioner's supposed

shout amounted to an invocation of the right to counsel. At a

bare minimum, an invocation of the right to counsel must be

communicated by the suspect to the police — and the police

officers who were escorting the petitioner at the critical time

testified unequivocally that they never heard any such outcry.

The state court judge credited this testimony, resolving the

apparent credibility conflict in the officers' favor. Without

more, the law requires us to presume that this factual finding

is correct and to defer to it. See Parker v. Head, 244 F.3d

831, 837 (11th Cir. 2001) (citing 28 U.S.C. § 2254(e)(1)).

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 We say "without more" because a habeas petitioner can

rebut this presumption by adducing "clear and convincing

evidence," 28 U.S.C. § 2254(e)(1), and a federal habeas court

will issue the writ if this proffer convinces it that the

underlying state court's adjudication "resulted in a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,"

id. § 2254(d)(2). Here, however, the petitioner marshals no

such showing. He simply insists that the officers' testimony

was untrustworthy. That will not do.

Credibility is quintessentially a matter of fact,

reserved in almost every circumstance for the trier. E.g.,

United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000);

Johnson v. Watts Regulator Co., 63 F.3d 1129, 1139 (1st Cir.

1995). In this instance, the state trial court spoke clearly,

and the SJC resoundingly endorsed its credibility assessment.

Sanna, 674 N.E.2d at 1073-74. Under these circumstances, it

would be wholly inappropriate for a federal court to repastinate

soil already thoroughly plowed and delve into the veracity of

the witnesses on habeas review. See Seymour, 224 F.3d at 553;

Caldwell v. Maloney, 159 F.3d 639, 650 (1st Cir. 1998); see also

Coombs, 202 F.3d at 19 (deferring to the state appellate court's

characterization of the trial court's credibility

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determination). Since the challenged factual finding was based

upon a plausible credibility determination, we reject the

petitioner's Miranda claim.

C. The Jury Instruction Claim.

In order to convict for first-degree murder under

Massachusetts law, the Commonwealth must prove the requisite

mental state — malice aforethought — and show deliberate

premeditation, extreme atrocity and cruelty, or felony murder.

See Mass. Gen. Laws ch. 265, § 1 (quoted supra Part I(B)). The

Commonwealth can prove malice aforethought in any of three

different ways: by demonstrating (1) that the defendant

specifically intended to kill the victim without justification

or excuse, or (2) that the defendant intended to cause grievous

bodily injury to the victim, or (3) that "in the circumstances

known to the defendant, a reasonably prudent person would have

known that according to common experience there was a plain and

strong likelihood that death would follow the contemplated act."

Commonwealth v. Grey, 505 N.E.2d 171, 173 n.1 (Mass. 1987). The

third alternative differs importantly from the first two in that

it calls for an objective rather than a subjective analysis

under which the factfinder can infer malice aforethought without

proof of specific intent. Id.

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 In this case, there was some evidence that the

petitioner had ingested cocaine on the day of the killing. The

state trial court initially instructed the jury to consider this

evidence in assessing deliberate premeditation, extreme

atrocity, and specific intent.3 The court refused, however, to

instruct that evidence of intoxication might be relevant to

whether the defendant possessed the level of understanding

required to appreciate that death was a likely consequence of

his actions.

After the jurors had deliberated for a few hours, they

asked the court to clarify its mens rea instructions. The judge

took the opportunity to deliver a supplemental instruction

directing the jury to consider intoxication when evaluating

whether a reasonably prudent person in the defendant's position

would appreciate that death might result from his actions.4 The

3
The court charged the jurors to "consider evidence that the
defendant was intoxicated from the voluntary use of drugs when
you consider whether he deliberately premeditated." Later, in
discussing extreme atrocity, the court admonished that "[i]f the
evidence shows that the defendant had impaired capacity because
of drugs at the time the crime was committed, you should
consider what effect, if any, the defendant's impairment had on
his ability to appreciate the consequences of his choices." The
court added: "You may consider [whether the defendant was under
the influence of drugs at the time] on the issue of whether the
prosecution has proven that the defendant had specific intent to
kill or grievously injure the victim beyond a reasonable doubt."
4The supplemental instruction reads in pertinent part:
[I]f you find that there was an impairment

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petitioner objected that this was too little, too late — and

confusing to boot. The trial court overruled his objection.

The petitioner argues here, as he did before the SJC and the

court below, that the clumsy patchwork of instructions deprived

him of due process by failing adequately to inform the jury

about the relevance of his alleged intoxication to the third

branch of "malice aforethought."

Federal habeas relief cannot be granted merely because

a state court errs in its application of state law. E.g.,

Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir. 1987). But a

state law or practice that betrays a fundamental principle of

justice offends the Due Process Clause. Cooper v. Oklahoma, 517

U.S. 348, 363-65 (1996); Patterson v. New York, 432 U.S. 197,

201-02 (1977). Thus, a state court's error in applying a state

rule sometimes can have constitutional implications. E.g.,

Chambers v. Mississippi, 410 U.S. 284, 294 (1973). That, in

turn, may afford a basis for federal habeas relief.

of [the petitioner's] mental capacity caused
by the ingestion of drugs, you are to
consider that impaired mental capacity in
determining what circumstances were known to
the defendant as it relates to whether a
reasonably prudent person would have known
that there was a plain and strong likelihood
that according to common experience death of
the victim would follow those actions.

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 This is not to say that every error of state law can

be transmogrified by artful argumentation into a constitutional

violation. The Supreme Court has invoked the Chambers tenet

only rarely, e.g., Crane v. Kentucky, 476 U.S. 683, 690-91

(1986) (considering the irrational exclusion, on state-law

grounds, of highly relevant evidence critical to the defense),

and its use is to be reserved for extreme cases, see Fortini v.

Murphy, 257 F.3d 39, 45-46 (1st Cir. 2001).

The defendant in Montana v. Egelhoff, 518 U.S. 37

(1996), made such an assertion, maintaining that a Montana

statute which prohibited the consideration of proof of voluntary

intoxication in assessing mens rea deprived criminal defendants

of due process. The Court rejected his assertion. See id. at

56 (plurality op.). Despite the fact that the Court was

splintered, five Justices agreed that the right to have a jury

weigh intoxication evidence in relation to criminal

responsibility is not a fundamental principle of justice. Id.

at 48.

In light of Egelhoff, it is difficult to imagine how

the slightly off-kilter instructions here could betray a

fundamental principle of justice. If a state can forbid jurors

from considering intoxication evidence at all, it would be

strange to think that an incomplete warning anent the effects of

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intoxication, belatedly (if imperfectly) supplemented, could

offend basic notions of fairness. We reject the suggestion.

The petitioner perseveres, insisting that Egelhoff does

not answer the question of whether a state can determine that

intoxication is relevant to criminal responsibility as a

substantive matter and then fail to ensure that the jury is

properly instructed to that effect. That is true as far as it

goes, see Egelhoff, 518 U.S. at 58 (Ginsburg, J., concurring)

(noting that a statute encounters "no constitutional shoal" as

long as the law is conceived as substantively redefining mens

rea), but it leads the petitioner down a blind alley. If

Egelhoff is inapposite, the petitioner must show that the state

court's decision is contrary to, or an unreasonable application

of, some other firmly established Supreme Court precedent. See

Matesanz, 230 F.3d at 425; see also 28 U.S.C. § 2254(d)(1).

In an effort to escape from this blind alley, the

petitioner asserts that, although states enjoy wide latitude in

defining both the elements of particular crimes and "the extent

to which moral culpability should be a prerequisite to

conviction of a crime," Powell v. Texas, 392 U.S. 514, 545

(1968), they cannot reallocate the burden of proof once they

have set those elements in place. The petitioner correctly

cites In re Winship, 397 U.S. 358, 364 (1970), as authority for

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this proposition and, based on Winship, he claims that the

faulty jury instruction violated due process because it

impermissibly shifted the burden of proof by relaxing the

Commonwealth's obligation to prove beyond a reasonable doubt

that the petitioner possessed the requisite mental capacity for

murder.

Noting that the Egelhoff Court rejected a substantially

similar argument, 518 U.S. at 54-55, the Commonwealth takes the

position that this thesis, too, should be rejected. Life is not

that simple: there is a potentially important difference

between Massachusetts state law and the Montana statute at issue

in Egelhoff. In decreeing that criminal defendants are entitled

to an instruction on intoxication vis-à-vis malice,

Massachusetts, unlike Montana, has established that intoxication

is substantively relevant to criminal responsibility. In this

case, criminal responsibility — or malice aforethought — is an

element of the crime and, as such, it must be proved beyond a

reasonable doubt. Thus, an imperfect intoxication instruction

might possibly reduce the government's burden of proof. It

follows that Egelhoff affords no safe harbor for the

Commonwealth.

Still, it is hard to see how the SJC's rejection of the

petitioner's argument can be deemed contrary to, or an

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unreasonable application of, Winship. Although the Winship

Court's holding is clearly established, that holding operates at

a high level of generality. This case lies somewhere on the

blurry outskirts of Winship, rendering the case starkly

inappropriate for treatment under the "contrary to" prong of

section 2254(d)(1). In this regard, the "key inquiry . . . is

whether a Supreme Court rule — by virtue of its factual

similarity (though not necessarily identicality) or its

distillation of general federal law precepts into a channeled

mode of analysis specifically intended for application to

variant factual situations — can fairly be said to require a

particular result in a particular case." O'Brien, 145 F.3d at

25. Viewed through this prism, there is no principled way to

conclude that Winship unarguably demands a finding that due

process was violated here. See Taylor, 529 U.S. at 406

(explaining that a state court decision which applies the

correct legal rule to reach an independent outcome on different

facts cannot be deemed to transgress the "contrary to" branch of

section 2254(d)(1)).

Nor can the SJC's disposition of the appeal be

considered an unreasonable application of Winship. Federal

courts are not free to grant habeas relief simply because they

disagree with the outcome of a state's adjudication. Taylor,

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529 U.S. at 375. Rather, "for the writ to issue, the state

court decision must be so offensive to existing precedent, so

devoid of record support, or so arbitrary, as to indicate that

it is outside the universe of plausible, credible options."

O'Brien, 145 F.3d at 25. The failure to distill the nuanced,

case-specific rule urged by the petitioner — that the imperfect

intoxication instruction impermissibly shifted the burden of

proof anent mental capacity — from the Winship Court's more

general holding does not come close to fitting this mold. See

Matesanz, 230 F.3d at 426 (explaining that where reasoned

application of clearly established Supreme Court precedent to a

particular set of facts can lead to more than one plausible

outcome, "the state court's choice between those . . . outcomes,

whether right or wrong, cannot constitute a basis for habeas

relief under the second branch of section 2254(d)(1)"); see also

Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001) (counseling

caution in the use of the "unreasonable application" branch of

section 2254(d)(1)).

The sockdolager is that, regardless of the

constitutionality of the jury instruction, the SJC rejected the

petitioner's claim on the ground that any instructional error

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(whether or not of constitutional magnitude) was harmless.5

Sanna, 674 N.E.2d at 1074-76. In reaching that conclusion, it

noted that the linchpin of the petitioner's defense was his

claim that someone else committed the crime. Id. at 1073.

Although the petitioner testified that he was "fogged out" from

smoking crack cocaine on the day of the murder, the SJC believed

that his overall testimony indicated quite plainly that he was

fully aware of the circumstances that existed before and after

the crime. Id. What is more, he eschewed any description of

his state of mind at the time he was in his great-uncle's

apartment. Id. Weighing these facts, the SJC reasoned that the

nature of the petitioner's defense, coupled with the palliative

effect of the supplemental instruction, rendered any error

harmless. Id. at 1075-76. In the court's view, "[w]here no

evidence exists that the defendant did not have knowledge of the

circumstances of the killing, an error in the instruction on the

effect of intoxication on the defendant's knowledge does not

constitute reversible error." Id. at 1075.

5The SJC did not squarely decide whether the intoxication
instructions violated state law. Since an error in state law is
a condition precedent to a claim that the burden of proof
shifted, there could be no Winship violation in the absence of
such an error. This would be an adequate and independent state
ground barring federal habeas review. See Coleman v. Thompson,
501 U.S. 722, 729-31 (1991); Martin v. Hunter's Lessee, 14 U.S.
(1 Wheat.) 304, 352-54 (1816).

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 Assuming, arguendo, that the state tribunal committed

a cognizable constitutional error, we are constrained in the

circumstances at hand to concur with the SJC's holding that any

such error was harmless. While the Supreme Court has identified

a small class of so-called "structural" errors that should never

be deemed harmless, see Arizona v. Fulminante, 499 U.S. 279,

309-10 (1991), the instructional error here is not structural,

see Neder v. United States, 527 U.S. 1, 8-15 (1999) (holding

that the omission of an element of an offense from a jury

instruction is not structural error and is, therefore, amenable

to harmless error analysis); Sustache-Rivera v. United States,

221 F.3d 8, 17 (1st Cir. 2000) (similar). Accordingly, the

bevue is subject to constitutional harmless error analysis.

On direct appeal, a court confronted by a preserved

constitutional error must set aside the judgment unless it is

satisfied that the error was harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24 (1967). Prior to the

enactment of the AEDPA, a different, less exacting standard

applied on collateral review. Under that standard, a federal

habeas court was bound to uphold a state court judgment,

notwithstanding a preserved constitutional error, as long as the

error did not have a substantial, injurious effect on the jury's

verdict. Brecht, 507 U.S. at 638. Although there is some

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disagreement as to whether the Brecht standard survives the

passage of the AEDPA, see Hernandez v. Johnson, 248 F.3d 344,

379 (5th Cir. 2001) (discussing opposing viewpoints and citing

cases), we have consistently employed Brecht in cases arising

under the AEDPA, e.g., Fortini, 247 F.3d at 48-49; Sustache-

Rivera, 221 F.3d at 18. We reaffirm that praxis today and hold

that the Brecht standard applies in conjunction with the AEDPA

amendments.6

Employing the Brecht standard, we conclude that the

intoxication instructions here had neither a substantial nor

injurious influence on the jury verdict. At trial, the

petitioner premised his defense on a claim of mistaken identity.

He offered virtually no evidence pertaining to the third strain

of malice aforethought. Given the nature of the petitioner's

defense and the fact that the original (imperfect) instructions

were largely remedied by the court's supplemental charge, it is

6 There is also some controversy about whether a federal
habeas court should apply Brecht when the state court did not
use the Chapman benchmark in its harmless error analysis.
Compare Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995)
(applying Brecht to all cases on collateral review), with
Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993)
(applying Brecht only when the state court has used the Chapman
standard); see generally Fortini, 257 F.3d at 48 (discussing
circuit split but taking no formal position on it). Here,
however, the SJC, while not explicitly invoking Chapman, applied
an essentially equivalent standard. See Sanna, 674 N.E.2d at
1075. Brecht therefore controls.

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highly unlikely that the challenged instructions had the

slightest impact on the jury's deliberations. Certainly, they

could not have had a "substantial and injurious effect or

influence," Brecht, 507 U.S. at 638, on the jury's evaluation of

mens rea. It follows that there is no basis for federal habeas

relief.

To recapitulate, the SJC's refusal to set aside the

petitioner's conviction by reason of the challenged jury

instructions was not contrary to, and did not involve an

unreasonable application of established Supreme Court precedent.

Under the AEDPA standard of review, the instructions did not

violate the Due Process Clause either by betraying fundamental

principles of justice or by shifting the burden of proof. To

cinch matters, even if we could detect a whiff of cognizable

constitutional error, that error would be deemed harmless under

Brecht, 507 U.S. at 638.

IV. CONCLUSION

We need go no further. Even before the passage of the

AEDPA, the Supreme Court admonished that "[t]he role of federal

habeas proceedings, while important in assuring that

constitutional rights are observed, is secondary and limited."

Id. at 633. In particular, federal courts should not allow

themselves to be used as vehicles for religitating state trials.

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Id. The parameters for granting habeas relief historically have

been quite narrow, and the AEDPA standard of review

circumscribed those parameters even further. Here, any errors

which may have marred the petitioner's trial were not sufficient

to warrant federal habeas relief under these criteria.

Affirmed.

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