United States Court of Appeals
For the First Circuit
No. 01-2166
JUAN CASTILLO,
Petitioner, Appellant,
v.
JAMES MATESANZ,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Ponsor, District Judge.*
Amy Baron-Evans, with whom Dwyer & Collora were on brief, for
petitioner.
James J. Arguin, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for respondent.
October 22, 2003
_____________________
* Of the United States District Court for the District of
Massachusetts, sitting by designation.
LIPEZ, Circuit Judge. This petition for habeas corpus
seeks relief from the denial of petitioner's motion for a new trial
in the state court. In pursuing a new trial, petitioner argued
that (1) the trial court's denial of defense counsel's motion for
a continuance at the beginning of the trial was "so arbitrary as to
violate due process," and (2) defense counsel's subsequent conduct
at trial violated the petitioner's Sixth Amendment right to
counsel. In asserting those arguments here, petitioner contends
that the state courts' denial of his motion for a new trial was
contrary to, and an unreasonable application of, clearly
established federal law. Unpersuaded, we affirm the decision of
the district court denying the petition for habeas corpus relief.
I.
On September 27, 1996, petitioner, Juan Castillo
("Castillo"), was convicted by a jury in the Massachusetts Superior
Court of trafficking in a controlled substance (cocaine), and was
sentenced to a mandatory minimum sentence of fifteen years.
Castillo appealed his conviction to the Massachusetts Appeals
Court. On April 15, 1998, Castillo filed a motion in the Superior
Court for a new trial arguing that (1) the trial court abused its
discretion in denying defense counsel Christine Fernandez
("Fernandez") a continuance, and (2) that Fernandez's lack of
knowledge of the law, failure to interview or prepare Castillo,
mischaracterization of Castillo's testimony in closing argument,
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and failure to call relevant witnesses was ineffective assistance
of counsel under the Massachusetts Declaration of Rights and the
Sixth Amendment. By an order entered June 15, 1998, the trial
judge denied the motion without discovery or an evidentiary
hearing, finding that no continuance was necessary because the
filing of counsel's appearance was a representation that she was
"ready, willing, and able" to try the case, and that her
performance was not ineffective. Commonwealth v. Castillo, No.
9477 CR 3461 (Mass. Superior Ct. June 15, 1998)(order denying
defendant's motion for new trial). Castillo's appeal from this
order was consolidated with his direct appeal. On June 8, 1999,
the Appeals Court summarily affirmed Castillo's conviction and the
denial of his new trial motion "substantially for those reasons set
out in the trial judge's memorandum of decision." Commonwealth v.
Castillo, No. 97-P-1937 (Mass. App. Ct. June 8, 1999)(mem. & order
affirming defendant's conviction and denial of motion for a new
trial). The Supreme Judicial Court of Massachusetts denied further
appellate review. Commonwealth v. Castillo, No. FAR-10783 (Mass.
Sept. 27, 1999)(notice of denial of further appellate review).
On September 11, 2000, Castillo petitioned the federal
district court for habeas corpus relief under 28 U.S.C. § 2254,
claiming that the state court's rejection of his two new trial
claims -- a due process violation in denying the continuance and
ineffective assistance of counsel -- warranted habeas relief. On
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March 22, 2001, the district court referred the petition to a
United States magistrate judge for a recommended disposition. On
July 6, 2001, the magistrate judge issued a thorough Report and
Recommendation recommending that the petition be dismissed. On
July 17, Castillo timely objected to three factual determinations
contained in the report.1 By an order dated July 27, 2001, the
district court rejected Castillo's objections and adopted the
report in its entirety.2 On August 1, 2002, the district court
1
The Report and Recommendation of the magistrate judge
contained a clear notice that "any party who objects to these
proposed findings and recommendations must file a written objection
thereto . . . within 10 days. . . . [F]ailure to comply with this
rule shall preclude further appellate review." Castillo v.
Matesanz, No. 00-11854 (D. Mass. July 6, 2001) (Report and
Recommendation of United States magistrate judge). Despite this
clear warning, Castillo made limited objections to the magistrate
judge's report. Respondent rightly argues that "none of the
proposed factual findings [to which petitioner objected], even if
erroneous, provides a basis for habeas relief. The remaining
aspects of petitioner's appeal comprise matters to which no
objection was made and, therefore, are waived and not properly
before this Court." In most circumstances we would enforce this
important rule of waiver. See Keating v. Sec'y of Health and Human
Servs., 848 F.2d 271 (1st Cir. 1988) ("[O]nly those issues fairly
raised by the objections to the magistrate's report are subject to
review in the district court and those not preserved by such
objection are precluded on appeal."). However, this rule is
procedural, not jurisdictional. Thomas v. Arn, 474 U.S. 140, 146
(1985). Strictly applied here, this rule would mean that we would
not be addressing the merits of any of Castillo's arguments on
appeal, and there might be further claims of ineffective assistance
of counsel in these post-conviction proceedings. In the interest
of finality, therefore, we proceed to affirm on the merits the
district court's denial of habeas relief.
2
Because the district court accepted and adopted the
detailed Report and Recommendation of the magistrate judge, we do
not distinguish between the two judicial officers in the interest
of simplicity. Rather, for the duration of the opinion, we refer
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explained its decision to grant Castillo a certificate of
appealability. "While a strong case has been made that counsel's
performance fell below an objective standard of reasonableness
because of her utter lack of preparation, I agreed (and still
agree) with the magistrate judge that petitioner has not shown that
prejudice resulted. Nonetheless, habeas appellate counsel has
valiantly made enough of a showing to persuade me that an appeal is
appropriate." Castillo v. Matesanz, No. 00-11854-PBS (August 1,
2002) (certificate of appealability).
II.
We first give a brief summary of the circumstances of the
offense and some pretrial history. We then recount the facts
relevant to the request for a continuance and the ineffective
assistance of counsel claims.
A. The Offense and Some Pretrial History
At about 8 p.m. on October 30, 1994, two police officers
for the city of Lynn received a radio report of a disturbance at
102 Cottage Street. Upon arrival, the residents of the first floor
apartment let the officers into the three-unit building and
directed them upstairs. The officers proceeded to the second
floor, which was empty and unlit, where they heard footsteps coming
from the third floor. Officer Griffin proceeded to the third floor
apartment and knocked on the door, identifying himself as
to the determinations below as those of the district court.
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"policia." Officer Hogan went up the back stairs to the third
floor, where he heard the back door unlock and saw Castillo begin
to emerge from the doorway. Castillo then turned and went back
into the apartment. Officer Hogan entered through the back door,
saw a second man in the apartment's bathroom holding a plastic bag
containing a white substance, and heard the toilet flushing. The
officer then saw a third man in the kitchen making a throwing
gesture towards the window. On the ground beneath the kitchen
window, the police later recovered two clear plastic bags
containing approximately 169 grams of cocaine. Castillo and a
fourth man were standing next to the kitchen table, on which
Officer Hogan observed a partially open brown paper bag containing
several plastic sandwich bags filled with a white powder, and two
digital scales. Castillo was never seen in physical custody of any
controlled substance. The officers arrested Castillo and brought
him to the police station, where officers found a beeper and $467
in cash on his person.
On December 14, 1994, a Massachusetts grand jury indicted
Castillo for trafficking in 200 grams or more of cocaine, and
conspiracy to violate the Controlled Substances Act. Mass. Gen.
Laws Ann. ch. 94c, §§ 32E, 40 (2003). At Castillo's arraignment on
January 11, 1995, attorney Kirk Bransfield was appointed to
represent him. After deciding a variety of pretrial motions and
after a number of continuances, the trial court scheduled the
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beginning of trial for December 13, 1995.3 Castillo failed to
appear on December 13, and an arrest warrant issued. Approximately
six months later, Castillo was arrested at a New York airport and
remanded to Massachusetts for trial. Trial was scheduled to begin
on September 23, 1996.
B. Attorney Fernandez's Appearance
On August 5, 1996, Christine Fernandez, an attorney with
the New York law firm of Aranda & Guttlein, filed a motion to
appear pro hac vice in this matter. On the same day, attorney
Andres M. Aranda, a partner of the Aranda & Guttlein law firm, also
moved to appear pro hac vice but his motion was not docketed or
acted upon by the court. In an affidavit filed in support of her
motion, Fernandez stated that she had been a member in good
standing of the New York bar since 1996 and that she "specialize[d]
in criminal and federal law." On September 9, Fernandez appeared
in person before a Superior Court judge, who allowed the motion to
appear pro hac vice on the express "condition that the trial date
of September 23, 1996 remain the scheduled trial date and that the
allowance of this motion not delay the trial." On that same day,
Fernandez filed a notice of appearance, and attorney Bransfield,
the court-appointed counsel, withdrew.
3
Although all of the men present in the apartment on the
night in question were arrested, Castillo was tried alone.
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On September 12, 1996, attorney Jorge Guttlein
("Guttlein"), another partner of the Aranda & Guttlein law firm,
sent a letter to the court together with an undated motion to
appear pro hac vice. In the letter, Guttlein acknowledged that
Castillo's trial was scheduled for September 23, 1996, but
requested that trial be continued until October 17 because he had
a scheduling conflict. The trial court treated this letter as a
motion for a continuance, which it denied. Castillo's case was
subsequently transferred from Essex Superior Court to Lawrence
Superior Court for trial on September 24, 1996. Guttlein appeared
before the Lawrence Superior Court on September 24, 1996, and his
motion to appear pro hac vice was allowed that day. Castillo's
case was not called for trial that day but was continued to the
next morning.
Fernandez appeared in court the next morning and informed
the judge that Guttlein had been "called back to New York late
yesterday afternoon because his wife was ill." Fernandez stated
that she was appearing on Castillo's behalf and that she had
reviewed all the pretrial motions and was prepared to argue them,
but that she had a "series of requests" regarding her "late entry
into the case this morning." She sought a further delay in the
trial:
I arrived in Massachusetts last night at about
four a.m. because the roads were awful with
the rain and everything else. I have had very
little opportunity to review this file. I
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understand that we're scheduled to go forward,
and I'm prepared to at least go forward with
jury selection. However, I would ask your
Honor please not to go forward with any
testimony until I've had an opportunity to
further review this file.
The trial judge responded that Fernandez's motion to appear was
allowed several weeks ago "with the specific condition that it not
delay the trial." Fernandez argued that at the time she was
admitted to appear pro hac vice, she "was not under the impression
that [she] would be trying this case" since Guttlein has been
"slotted to try this case." The judge replied:
[Y]our firm was on notice that whoever was
going to try this case was going to be
prepared for it. And the Court doesn't look
behind appearances when you have two or three
people, all of whom are on there. Everyone is
presumed to be ready, willing and able to try
the case.
However, the judge stated that he did not know how far they would
get that day, although it seemed likely they would get through
impanelment and opening statements. He deferred ruling on the
request to delay any testimony until later in the day. After
impanelment and opening statements, the judge recessed the
proceedings for an hour and a half, stating that the Commonwealth
would call its first witness following the recess and Fernandez
would be called on to cross-examine the witness. Although this
statement implicitly denied the request for a one-day delay of
testimony, Fernandez did not voice any further objections to the
schedule.
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C. Castillo's Trial Strategy
Castillo was charged with trafficking in a controlled
substance, an offense with the following elements: (1) knowing or
intentional possession of a controlled substance, (2) with the
specific intent to distribute the controlled substance, and (3) if
the controlled substance is cocaine (as defined in Mass. Gen. Laws.
Ann. ch. 94C § 31), the controlled substance has a net weight of
fourteen grams or more. Mass. Gen. Laws Ann. ch. 94c, § 32E(b).
The statute sets out escalating penalties for amounts in excess of
the fourteen grams necessary for conviction. Specifically, the
statute sets a mandatory minimum sentence of five years for 28
grams or more but less than 100 grams, and a mandatory minimum
sentence of fifteen years for 200 grams or more. Mass. Gen. Laws
Ann. ch. 94c, § 32E(2), (4). Two lesser included offenses of
trafficking are possession with intent to distribute and simple
possession. To gain a trafficking conviction rather than the
lesser offense of possession with intent to distribute, the
prosecution must establish possession with intent to distribute a
minimum weight of fourteen grams of cocaine. Simple possession is
merely knowing or intentional possession of a controlled substance
-- there is no "intent to distribute" or minimum weight
requirement. Mass. Gen. Laws Ann. ch. 94c, § 34. The sentence for
simple possession is imprisonment for not more than one year.
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Castillo's trial strategy was to win a not guilty verdict
by defeating the prosecution's proof of the first element of the
trafficking offense: knowing or intentional possession of a
controlled substance. Thus, attorney Fernandez did not contest
that the substance in question found at the apartment was cocaine
and that the amount of the substance was 200 grams or more.
Instead, she argued that Castillo did not know there were any drugs
in the apartment or that the other people in the apartment were
engaged in drug dealing. Castillo was merely present in someone
else's apartment where drugs happened to be found.
The Commonwealth opened its case by calling Officer Hogan
to the stand, who testified to the activities he witnessed in the
apartment. In accordance with her trial strategy, Fernandez
established through her cross-examination of Officer Hogan that he
did not see Castillo handle any of the drugs and that in order to
be able to see the drugs inside the bag on the kitchen table, a
person had to be standing over the bag. She further established
that if Castillo had been sitting at the kitchen table he would not
have been able to see into the bag that was on the table.
The following morning, the Commonwealth called Officer
Griffin, who testified in a manner similar to Officer Hogan about
the events leading to Castillo's arrest and added that at the
police station a beeper and $467 in cash were recovered from
Castillo's person. On cross-examination, Fernandez established
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that not all beepers are used to conduct drug transactions and that
no drugs were ever found in Castillo's possession. The
Commonwealth also called Lieutenant Stevens who testified generally
about the drug trade in Lynn at the time of Castillo's arrest.
At the conclusion of the Commonwealth's case, Fernandez
moved for a judgment of acquittal on the ground that the
Commonwealth's evidence established only Castillo's "mere presence
in an apartment where narcotics" were seized and that this was
insufficient to establish guilt under Massachusetts law. The judge
denied the motion. Fernandez then called Castillo to the stand to
explain the circumstances of his presence in Lynn and to offer his
account of what transpired on the night of his arrest. Castillo
testified that he was a resident of the Bronx, New York, where he
lived with his wife and daughter. He worked in Manhattan
delivering clothes for a weekly income of $260 to $280. He had
come to Lynn to help his former mother-in-law locate his missing
son, and the cash he brought with him was to buy clothes and gifts
for his son. While in Lynn he met Rodriguez, a resident of the
apartment, at a "telephone place" (a business providing inexpensive
long distance telephone service as an alternative to pay phones),
where they spoke on several occasions. On October 30, 1994,
Rodriguez invited Castillo to his apartment at 102 Cottage Street.
After being at the apartment for ten or fifteen minutes, Castillo
testified that he got up to leave and was confronted by a police
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officer as he attempted to exit the back door. Castillo denied
having any knowledge of any drugs in the apartment prior to the
arrival of the police officers.
After the examination of witnesses, the Court reviewed
the jury charge. Fernandez rejected an instruction on simple
possession offered by the trial judge. Although she initially
requested a joint venture instruction,4 Fernandez immediately
objected to the judge's decision to offer such an instruction when
she fully comprehended the significance of it. After receiving
instructions from the judge, the jury returned a verdict that
Castillo was guilty of trafficking in 200 grams or more of cocaine.
III.
The standard of review for this habeas corpus petition is
set forth in the AEDPA statute, 28 U.S.C. §§ 2244-2266 (2002). On
the grounds pertinent to this case, a federal court may grant
habeas relief to a state prisoner if it finds, inter alia, that the
4
As the judge instructed the jury, "[i]nherent in the idea
of joint venture liability is that he aided and abetted and, as so,
shares the same mental intent and is guilty to the same extent as
a principal who commits the crime." To establish liability under
a joint venture theory under Massachusetts law, the prosecution
must prove (1) that the defendant was present at the scene of the
crime, (2) that the defendant had knowledge that another intended
to commit the crime and that he shared that intent himself, and (3)
that the defendant by agreement was willing and available to help
the other in carrying out the crime if necessary. For joint
venture liability, the prosecution is not required to show that
"the defendant physically participated in the actual offense in the
sense that he actually or constructively possessed a controlled
substance."
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state court adjudication "resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law . . . ." 28 U.S.C. § 2254(d)(1). This section "defines
two categories of cases in which a state prisoner may obtain
federal habeas relief with respect to a claim adjudicated on the
merits in state court." Williams v. Taylor, 529 U.S. 362, 404
(2000). Under the "contrary to" prong, a federal court may grant
the writ if the state court "arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the Supreme Court] has
on a set of materially indistinguishable facts." Id. at 412-13.
Under the "unreasonable application" prong, a federal court may
grant the writ if the state court "identifies the correct governing
legal principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the prisoner's
case." Id. at 413. In the latter case, the state court's
determination must be unreasonable, not simply incorrect, and
unreasonableness is an objective standard. Id. at 410-11. "If it
is a close question whether the state decision is in error, then
the state decision cannot be an unreasonable application."
McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)(en banc).
A. Denial of Request for a Continuance
Castillo contends that the trial court's denial of a
continuance was "so arbitrary as to violate due process." In his
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challenge to the state court's failure to grant his motion for a
new trial on this basis, he claims that this denial constituted an
unreasonable application of clearly established Supreme Court
precedent5 because it
gave no weight to counsel's lack of
preparation and experience, drew an improper
presumption that counsel was "ready willing
and able" to try the case from the fact of her
appearance in the face of her representation
to the contrary, and misrepresented the roles
of the various members of the law firm in a
way that is misleading and beside the point.
We disagree.
The only Supreme Court precedent that Castillo identifies
for purposes of the "unreasonable application" analysis is Ungar v.
Sarafite, 376 U.S. 575 (1964). The Supreme Court held that a trial
judge's decision not to grant the defendant in a contempt hearing
a one-week continuance did not offend the requirements of due
process.
The matter of continuance is traditionally
within the discretion of the trial judge, and
it is not every denial of a request for more
time that violates due process even if the
party fails to offer evidence or is compelled
to defend without counsel. Contrariwise, a
myopic insistence upon expeditiousness in the
face of a justifiable request for delay can
render the right to defend with counsel an
empty formality.
5
Castillo does not argue that the trial court's denial of
his request for a continuance was contrary to Supreme Court
precedent.
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Id. (internal citations omitted). The Court added that "[t]here
are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process." Id. Instead,
reviewing courts must examine "the circumstances present in every
case, particularly in the reasons presented to the trial judge at
the time the request is denied." Id. However, "[n]ot every
restriction on counsel's time or opportunity to investigate or to
consult with his client or otherwise to prepare for trial violates
a defendant's Sixth Amendment right to counsel." Morris v. Slappy,
461 U.S. 1, 11 (1983).
We recently applied Ungar's case-specific inquiry to a
denial of a continuance, holding that a reviewing court must look
at "the reasons contemporaneously presented in support of the
request for the continuance." We also identified a number of
relevant factors:
the amount of time needed for effective
preparation, the amount of time actually
available for preparation, the amount of time
previously available for preparation and how
assiduously the movant used that time, the
extent to which the movant has contributed to
his perceived predicament, the complexity of
the case, the availability of assistance from
other sources, the probable utility of a
continuance, the extent of inconvenience to
others . . . should a continuance ensue, and
the likelihood of an injustice or unfair
prejudice attributable to the denial of a
continuance.
United States v. Saccochia, 58 F.3d 754, 770 (1st Cir. 1995).
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Due to the summary nature of the Appeals Court's
affirmance, our review of the state courts' application of federal
law to the request for a continuance requires us to review the
decision of the trial court denying Castillo's motion for a new
trial. In its denial of Castillo's motion for a new trial, the
trial court noted that the trial originally had been scheduled for
September 23, 1996, that Fernandez had presented a motion to appear
pro hac vice and had made a corresponding appearance almost two
months before the scheduled trial date, and that, in allowing the
motion, the court put Fernandez on notice that the impending trial
would not be delayed. Thus, counsel had ample time to prepare.
Even in pressing her last minute request for a brief continuance,
Fernandez made no representations to the trial judge that she had
never before tried a case and that her inexperience might make it
difficult for her to try this case under the circumstances.
Furthermore, in its order denying Castillo's motion for a new
trial, the trial court found that "counsel's performance during the
trial did not reflect that of an attorney noticeably lacking in
either experience or competence sufficient to meet constitutional
standards." Commonwealth v. Castillo, No. 9477 CR 3461, slip op.
at 4.
In submitting her motion to appear, Fernandez represented
to the court that she was ready to try the case. Moreover, that
motion was allowed on the express condition that the trial date
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remain as scheduled and the trial not be delayed. At no time did
Fernandez indicate to the judge that this was her first trial. To
the contrary, in her motion to appear, Fernandez explicitly stated
"I specialize in Criminal and Federal law." In light of the
information before the trial judge at the time he made his decision
and the "great deal of latitude" necessarily afforded judges in
scheduling trials, Morris, 461 U.S. at 11, the decision not to
grant Castillo a new trial on the basis of the denial of his
request for a continuance was not an unreasonable application of
Supreme Court precedent.
B. Ineffective Assistance of Counsel
In rejecting Castillo's motion for a new trial on the
basis of ineffective assistance of counsel, the trial court found
that "Attorney Fernandez's performance [was not] measurably below
that of an ordinarily fallible lawyer" and "defense counsel's
theory of the case was not 'manifestly unreasonable.'"
Commonwealth v. Castillo, No. 9477 CR 3461, slip op. at 5-6.
Castillo argues that the "manifestly unreasonable" standard that
the trial court applied in assessing trial counsel's tactical
judgment is contrary to the standard the Supreme Court prescribed
in Strickland. Castillo also argues that the state court's
evaluation of Fernandez's performance was an unreasonable
application of Strickland. After a brief explanation of the
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Strickland standard, we explain our reasons for rejecting these
arguments on the merits.
1. The Strickland Standard
In Strickland v. Washington, the Supreme Court set forth
the controlling principles for deciding ineffective assistance of
counsel claims. Under these principles, a defendant alleging
ineffective assistance of counsel must establish two elements:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense.
Strickland, 466 U.S. at 687. In addressing the first element,
"judicial scrutiny of counsel's performance must be highly
deferential." Id. at 689. A reviewing court must leave "ample
room for variations in professional judgment," Ouber v. Guarino,
293 F.3d 19, 25 (1st Cir. 2002) (citing Strickland, 466 U.S. at
689), and "every effort [must] be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time." Id. at 689. Only if, "in light of all
the circumstances, the identified acts or omissions of counsel were
outside the wide range of professionally competent assistance," can
a finding of deficient performance ensue. Id. at 690.
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Even if counsel's performance is constitutionally
deficient, the second element of the Strickland standard requires
the petitioner to demonstrate that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694.
While such prejudice may be presumed in a few limited
circumstances, such cases are the exception. See Bell v. Cone, 535
U.S. 685, 695-96 (2002). Generally, the petitioner "must carry the
devoir of persuasion and prove that he was prejudiced, i.e. that
his attorney's parlous conduct may have altered the outcome of the
case." Ouber, 293 F.3d at 25. However, "there is no reason for a
court deciding an ineffective assistance claim to approach the
inquiry in [] order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one."
Strickland, 466 U.S. at 697. Hence we address primarily the
performance component of the Strickland standard.
2. Contrary to Strickland
In evaluating Castillo's ineffective assistance of
counsel claim, the state court used the following standard:
[Castillo] must demonstrate that defense counsel's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and that such inadequacies likely deprived the
defendant of an otherwise available defense. Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Counsel's tactical judgment
must be "manifestly unreasonable" to constitute ineffective
assistance of counsel. Commonwealth v. White, 409 Mass 266, 273
(1991).
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Commonwealth v. Castillo, No. 9477 CR 3461, slip op. at 5-6. In
his brief on appeal Castillo argues that this "manifestly
unreasonable" standard is contrary to the federal standard set
forth in Strickland. Ordinarily, we would not address this
argument, as it was not raised before the district court in either
Castillo's original habeas petition or in his application for a
certificate of appealability. Malave v. Carney Hosp., 170 F.3d
217, 222 (1st Cir. 1999)("It is a bedrock rule of appellate
practice that . . . matters not raised in the [district] court
cannot be hawked for the first time on appeal."); see Kramer v.
Kemna, 21 F.3d 305, 308 (8th Cir. 1994) (In an appeal from a denial
of a writ of habeas corpus, the court declined to consider issues
not raised before the district court, holding that the "[f]ailure
to give the district court a first opportunity to decide the merits
of an argument constitutes a waiver of that argument."); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993) (same); Depree v.
Thomas, 946 F.2d 784, 793 (11th Cir. 1991) (same).
However, an appellate court has discretion, in an
exceptional case, to reach issues that were not raised below.
United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990);
United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
We have found the exercise of such discretion to be appropriate
where the appellant's challenge "raises an issue of constitutional
magnitude which, if meritorious, could substantially affect [the
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appellant], and future defendants . . . ." La Guardia, 902 F.2d at
1013; see Federal Credit Union v. DelBonis, 72 F.3d 921, 930 (1st
Cir. 1995) ("[C]ases involving important constitutional or
governmental issues may be exceptional and, as such, there should
be a full treatment of all legal issues involved, whether squarely
introduced by the parties or not."). Castillo's argument that the
state court's "manifestly unreasonable" standard is contrary to
Strickland raises an important question of law that can be resolved
on the existing record and that is "almost certain to be presented
in identical terms in other cases." La Guardia, 902 F.2d at 1013.
The issue has been fully briefed on this appeal and was covered
exhaustively at oral argument. If this constitutional claim were
otherwise meritorious, failure to reach it because of a procedural
default could result in "a miscarriage of justice." See id.
Therefore, we address the merits of Castillo's claim.
In evaluating whether Castillo was denied effective
assistance of counsel, the trial court differentiated between
allegations concerning the quality of counsel's performance and
those concerning the reasonableness of her tactical judgments.
Commonwealth v. Castillo, No. 9477 CR 3461, slip op. at 5-6. The
trial court cited Commonwealth v. Saferian, 315 N.E.2d 878, 883
(1974), for the proposition that Castillo was required to
demonstrate that attorney Fernandez's performance fell "measurably
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below that which might be expected from an ordinary fallible
lawyer." It concluded that Castillo failed to meet this burden.
Castillo does not contest the trial court's use of the
performance standard articulated by the Massachusetts Supreme Court
in Saferian, which we have described as the "functional equivalent
of Strickland." Ouber v. Guarino, 293 F.3d 19, 31 (1st Cir. 2002).
Rather, Castillo argues that the trial court applied to counsel's
tactical judgments a standard that was "contrary to" Strickland.6
For the reasons set forth below, we are not persuaded.
In its use of the phrase "manifestly unreasonable," the
trial court cited Commonwealth v. White, 565 N.E.2d 1185, 1189-90
(Mass. 1991), which in turn cited Commonwealth v. Adams, 375 N.E.2d
681, 685 (Mass. 1978)("Although most cases involving a claim of
ineffective counsel concern counsel's lack of preparation, there
may be instances where the judgment of fully informed counsel may
be so manifestly unreasonable as to be unprotected by the labels of
'trial strategy' or 'trial tactics.'"). In White, the
6
Castillo appears to suggest that the state court
erroneously applied the "manifestly unreasonable" standard to each
of the alleged errors of counsel that Castillo raised, regardless
of whether these allegations related to trial counsel's strategic
decision-making or to her performance. This is incorrect. The
court applied the "manifestly unreasonable" standard to actions
that it characterized as tactical or strategic. It applied a
different test to Castillo's claims relating to trial counsel's
inadequate preparation, qualifications to conduct the trial, and
performance at the trial, concluding that "Attorney Fernandez's
performance [was not] measurably below that of an ordinarily
fallible lawyer."
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Massachusetts Supreme Judicial Court quoted Saferian's standard for
evaluating a claim of ineffective assistance of counsel, and then
added:
In cases where tactical or strategic decisions of
defendant's counsel are at issue, we conduct our review
with some deference to avoid characterizing as
unreasonable a defense that was merely unsuccessful. See
Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). See
also Strickland v. Washington, 466 U.S. 668, 689-90
(1984). Rather than merely unreasonable, we require that
challenged tactical judgments must be "manifestly
unreasonable." Commonwealth v. Adams, 374 Mass. 722, 728
(1978).
White, 565 N.E.2d at 1190. Thus, in support of the "manifestly
unreasonable" language, the trial court cited to White, which
relied heavily on both Saferian and Strickland. This "manifestly
unreasonable" standard is not contrary to the standard set forth in
Strickland.
In Strickland, the Supreme Court held that "the proper
standard for attorney performance is that of reasonably effective
assistance," and that "[w]hen a convicted defendant complains of
the ineffectiveness of counsel's assistance, the defendant must
show that counsel's representation fell below an objective standard
of reasonableness." Strickland, 466 U.S. at 687. "More specific
guidelines are not appropriate . . . . The proper measure of
attorney performance remains simply reasonableness under prevailing
professional norms." Id. at 688. Recently, in Williams v. Taylor,
Justice O'Connor clarified what it means for a state court decision
to be contrary to clearly established federal law:
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The word "contrary" is commonly understood to mean
"diametrically different," "opposite in character or
nature," or "mutually opposed." The text of § 2254(d)(1)
therefore suggests that the state court's decision must
be substantially different from the relevant precedent of
this Court. . . . Take, for example, our decision in
Strickland v. Washington, 466 U.S. 668 (1984). If a
state court were to reject a prisoner's claim of
ineffective assistance of counsel on the grounds that the
prisoner had not established by a preponderance of the
evidence that the result of his criminal proceeding would
have been different, that decision would be
"diametrically different," "opposite in character or
nature," and "mutually opposed" to our clearly
established precedent because we held in Strickland that
the prisoner need only demonstrate a "reasonable
probability that . . . the result of the proceeding would
have been different." Id. at 694.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). By this example,
a state court decision imposing a heavier burden on a defendant
endeavoring to make an ineffective assistance claim than that set
forth in Strickland is contrary to Strickland.
However, Strickland also counsels that in evaluating the
reasonableness of counsel's tactical or strategic choices, courts
must apply "a heavy measure of deference to counsel's judgments."
In this context, "the Supreme Court [in Strickland] cited with
approval the approach to strategic decision-making of the Fifth
Circuit Court of Appeals, which allowed challenges when 'the choice
was so patently unreasonable that no competent attorney would have
made it.'" Phoenix v. Matesanz, 233 F.3d 77, 82 n.2 (1st Cir.
2001)(quoting Washington v. Strickland, 693 F.2d 1243, 1254 (5th
Cir. 1982)). In addition to the First and Fifth Circuits, other
circuits have applied this "patently unreasonable" formulation to
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tactical judgments. See, e.g., Bullock v. Carver, 297 F.3d 1036,
1046 (10th Cir. 2002); Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th
Cir. 2001), cert. denied, 535 U.S. 1000 (2002).7 The minor
variation in phraseology between "patently" and "manifestly" does
not render the Massachusetts standard contrary to federal law. See
Ouber, 293 F.3d at 32. As the Supreme Court in Strickland
implicitly affirmed the lower court's "patently unreasonable"
formulation in the context of tactical decision-making, the
standard employed by the trial court in evaluating Castillo's
ineffective assistance of counsel claim was not "diametrically
different," "opposite in character or nature," or "mutually
opposed" to Strickland.
7
In citing with approval the Fifth Circuit's approach, the
Supreme Court in Strickland noted that "strategic choices made
after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable," while "strategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation." Strickland, 466 U.S. at
690-91. Thus, rather than simply characterizing trial counsel's
tactical decisions as "unconsidered blunders," Castillo might have
argued that the trial court erred by failing to distinguish between
informed and uninformed tactical decision-making. However, those
Circuits that have adopted the "patently unreasonable" formulation
are divided on the question of whether Strickland accords
heightened deference only to informed strategic choices. See Epsom
v. Hall, 330 F.3d 49, 54 (1st Cir. 2003)(applying the formulation
to all strategic decision-making); Dorsey, 262 F.3d at 1186 (same);
cf. Bullock v. Carver, 297 F.3d at 1046 (applying the standard to
counsel's "fully-informed strategic choices"). Therefore, even if
Castillo had raised this argument directly, we would be unable to
conclude that the state court's application of the "manifestly
unreasonable" formula to all tactical judgments was contrary to
Strickland.
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3. Unreasonable Application of Strickland
In his habeas petition to the district court, and now on
appeal, Castillo argues that the trial court's resolution of the
ineffective assistance of counsel claim was an unreasonable
application of clearly established federal law. Castillo's
complaints fall into two broad categories. Under the first,
Castillo alleges that Fernandez's failure to know the law resulted
in the following errors: (1) stipulating that the substance found
in the apartment was cocaine and that the total amount of cocaine
exceeded 200 grams; (2) rejecting jury instructions on the lesser
included offenses of simple possession and possession with intent
to distribute; and (3) requesting a harmful joint venture jury
instruction. Under the second, Castillo alleges that Fernandez's
failure to know the facts caused her to (1) call Castillo to the
stand after inadequate preparation; and (2) fail to call two
witnesses (Ms. Mercado and Ms. Dominguez).
The trial court viewed Castillo's performance-related
allegations that counsel was ill-prepared and unqualified as "mere
Monday-morning quarterbacking." Commonwealth v. Castillo, No. 9477
CR 3461, slip op. at 6. The trial court found that Fernandez's
performance was not "measurably below that of an ordinarily
fallible lawyer." Id. at 5. The court cited as evidence of the
adequacy of her performance Fernandez's appropriate presentation of
a number of pretrial motions, her effective cross-examination of
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the prosecution's witnesses, and a well-argued motion for a finding
of not guilty at the close of the Commonwealth's case as well as at
the end of trial. The court's evaluation of counsel's performance
from its contemporaneous perspective during trial is an appropriate
application of Strickland's caution against the "distorting effects
of hindsight." Strickland, 466 U.S. at 689.
The trial court deemed Fernandez's decision not to call
Ms. Mercado and Ms. Dominguez "a strategic decision which the court
will not second guess" and "well within the wide range of
reasonable professional assistance." These witnesses could not
offer testimony on the critical issue of what transpired within the
apartment but could only corroborate Castillo's history and stated
reasons for being in Massachusetts. Moreover, there were details
of their proposed testimony (such as their accounts of where he got
the $467 in cash) that conflicted with Castillo's testimony. The
trial court's determination that the decision not to call them to
the stand was reasonable was an appropriate application of
Strickland's insistence on the "wide latitude counsel must have in
making tactical decisions." Strickland, 466 U.S. at 689.
Similarly, the court viewed Fernandez's rejection of instructions
on lesser offenses offered by the judge to be consistent with
counsel's not-manifestly-unreasonable theory that Castillo had no
knowledge of any drugs in the apartment. This determination is
consistent with the acknowledgment in Strickland that "[t]here are
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countless ways to provide effective assistance in any given case,"
and that there is a "presumption that, under the circumstances, the
challenged action might be considered sound trial strategy."
Strickland 466 U.S. at 689 (internal quotations omitted).
The most troubling of Fernandez's alleged errors is her
stipulation to the quantity of drugs found in the apartment. By
stipulating to 200 grams, Fernandez not only ensured that, if found
guilty, Castillo would be sentenced to a minimum of fifteen years,
but she also established as proven a fact from which the jury could
draw the reasonable inference of intent to distribute. The trial
court found this decision not to contest the quantity of drugs to
be consistent with counsel's theory that Castillo did not know
anything about the drugs present in the apartment, a theory of the
case that the trial court concluded was not manifestly
unreasonable.
We acknowledge that Fernandez's decision to stipulate to
the presence of the 200 grams or more of cocaine seems, from
hindsight, somewhat puzzling. She could have concurrently
maintained the theory that Castillo did not know about the drugs
while requiring the Commonwealth to meet its burden of proof as to
the quantity of cocaine found in the apartment. She received no
apparent advantage from this concession. On the other hand, with
169 grams of cocaine found in the clear plastic bags thrown out the
window, and several additional bags of cocaine in the brown paper
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bag on the table where Castillo was standing (along with the
cocaine the jury might have assumed was flushed down the toilet),
proof of the 200 gram minimum, in the absence of the stipulation,
would probably not have taxed the prosecution greatly. Defense
counsel might well have reasoned that a refusal to stipulate would
only draw attention to the various quantities of drugs in the
immediate area and thereby hurt, not help, her client.
In any event, given the consistency of this stipulation
with Castillo's defense (an unawareness of the presence of drugs in
the apartment), we can not say that the trial court's determination
that this defense strategy "was not manifestly unreasonable" (and
therefore did not constitute ineffective assistance of counsel)
rises to the level of "unreasonableness" required by the AEDPA
statute. Indeed, in light of Strickland's
implicit endorsement of the Fifth Circuit's "patently unreasonable"
approach to the analysis of decision-making and its presumption
that the challenged action "might be considered sound trial
strategy," Strickland, 466 U.S. at 689, the conclusion is
inescapable that the trial court's rejection of Castillo's
ineffective assistance claim does not constitute an unreasonable
application of clearly established federal law.
Affirmed.
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