Furr v. Brady

United States Court of Appeals
For the First Circuit

No. 05-1159

WILLIAM FURR,

Petitioner, Appellant,

v.

BERNARD BRADY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Dennis Shedd, for appellant.
Daniel M. Lieber, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellee.

March 3, 2006
 CYR, Senior Circuit Judge. Willie Furr appeals from the

district court order which denied his petition for habeas corpus

relief, 28 U.S.C. § 2254, which sought to set aside his state court

conviction for possessing a firearm, receiving a firearm with an

altered serial number, being an armed career criminal, and

attempting to obstruct justice and to intimidate a witness. We

affirm.

I

BACKGROUND

Furr was arrested on November 3, 1999, outside Dorchester

High School.1 Upon their arrival at the scene, the police observed

Furr run toward them holding his right side, then toss what

appeared to be a gun, and yell to his nearby friend, Rahshjeem

Benson: “Yo, Six, grab the gun.” Furr told the police that he had

been shot by an unknown person, who had already fled the scene;

that is, by someone other than Benson. The police located and

arrested Benson, who was found hiding between two nearby cars, and

who pointed out to the police the firearm laying at his feet. The

gun appeared to the police to be the one Furr had tossed away

moments before.

In due course, Furr was arrested and charged in state

1
The material facts found by the state courts, see
Commonwealth v. Furr, 788 N.E.2d 592, 596 (Mass. App. Ct.), review
denied, 793 N.E.2d 375 (Mass. 2003), as recited here, are entitled
to a presumption of correctness on habeas review. See 28 U.S.C. §
2254(e)(1).

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juvenile court with possessing a firearm, Mass. Gen. Laws Ann. ch.

269, § 10(a), receiving a firearm bearing an altered serial number,

id. § 11C, being an armed career criminal, id. § 10G(a),2 and

attempting to obstruct justice and intimidate a witness, Mass. Gen.

Laws Ann. ch. 274, § 6; Mass. Gen. Laws Ann. ch. 268, § 13B.

Benson provided a written statement to the police, stating that the

firearm belonged to Furr, and that Furr had gotten rid of the gun

and yelled to Benson to pick it up. While in prison pending trial,

Furr sent an anonymous letter to Benson, stating that he had seen

and was disappointed by Benson’s written statement to the police,

that Benson’s statement was a lie, and that Benson should testify

at trial that he and the police had concocted the untruthful

statement. The Furr letter made veiled threats about harming

Benson’s mother and siblings. The letter was intercepted by the

police before it reached Benson.

At trial, the prosecution introduced both the Benson

statement to the police and Furr’s threatening letter. Furr

objected to the Benson statement, claiming that it was hearsay by

a non-testifying witness (viz., Benson), and that its introduction

would violate his rights under the Confrontation Clause. The court

overruled the objection, on the ground that Benson’s statement was

2
The predicate “violent crimes” charged under the armed career
criminal statute were Furr’s juvenile adjudications for armed
carjacking, kidnapping, and assault and battery with a dangerous
weapon. See Mass. Gen. Laws Ann. ch. 269, § 10G(a) & (e); Mass.
Gen. Laws Ann. ch. 140, § 121.

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not introduced to establish the truth of its contents (viz., that

the gun belonged to Furr) on the firearm possession count, but

rather for a legitimate nonhearsay purpose relating to the

obstruction/intimidation count (viz., to establish that petitioner

knew of Benson’s statement and intended to intimidate him). The

jury was instructed that it should consider the Benson statement

only in relation to the obstruction count, and not the firearm-

possession count. The jury found petitioner guilty on all counts.

The trial court decided the “armed career criminal”

charge, without a jury (with petitioner’s consent), and found him

guilty based upon his prior juvenile adjudications. See supra note

2. After petitioner was sentenced to 8-12 years’ imprisonment, he

appealed to the state appellate court, which affirmed in due

course, Commonwealth v. Furr, 788 N.E.2d 592, 596 (Mass. App. Ct.

2003), and the Supreme Judicial Court denied the ensuing

application for further appellate review.

In November 2003, the instant habeas petition was filed

in federal district court, on the grounds that (i) the admission of

the Benson statement violated Furr’s rights under the Confrontation

Clause; and (ii) the trial court ruling that his prior juvenile

adjudications qualified as “convictions” for purposes of the armed

career criminal statute was unforeseeable and therefore violated

his federal due process right to receive fair and adequate warning

that his conduct would expose him to criminal liability under that

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statute.

The magistrate judge issued a report and recommendation

that the habeas petition be denied, which was adopted in toto by

the district court, which subsequently granted a certificate of

appealability as to both the confrontation clause and due process

claims, which Furr now challenges on appeal.

II

DISCUSSION

A. The Standard of Review

We review the denial of the habeas corpus petition de

novo. See Phoenix v. Matesanz, 189 F.3d 20, 24 (1st Cir. 1999).

Pursuant to the Antiterrorism and Effective Death Penalty Act, we

may grant habeas relief only if the challenged 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). The “contrary to” criterion is not

satisfied unless the state court “arrive[d] at a conclusion

opposite to that reached by [the United States Supreme] Court on a

question of law or if the state court decide[d] a case differently

than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413

(2000); see Horton v. Allen, 370 F.3d 75, 80 (1st Cir. 2004), cert.

denied, 125 S. Ct. 971 (2005). The “unreasonable application”

criterion is satisfied where the state court “identifie[d] the

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correct governing legal principle from [the Supreme] Court's

decisions but unreasonably applie[d] that principle to the facts of

the prisoner's case.” Williams, 529 U.S. at 413. As this is

indeed a high hurdle, habeas relief will not lie, even though the

state-court interpretation or application of federal law was

erroneous, unless it is also shown to be objectively unreasonable.

See Horton, 370 F.3d at 80.

B. The Confrontation Clause Claim

Furr initially contends that the admission of the Benson

statement, absent any opportunity to cross-examine Benson, violated

Furr's rights under the Confrontation Clause. He relies upon

Bruton v. United States, 391 U.S. 123 (1968), and Tennessee v.

Street, 471 U.S. 409 (1985). The Bruton Court held that the

government could not introduce a non-testifying codefendant’s out-

of-court statement at a joint trial which also inculpated

defendant, even if the trial court instructed the jury that it

should consider the codefendant’s extrajudicial statement only as

evidence of the codefendant’s guilt, not the defendant’s. Bruton,

391 U.S. at 135-36. The Court observed that, although juries

normally are presumed to follow instructions, the Bruton situation

created too great a risk that the jury either would not or could

not segregate its reliance upon the inculpatory evidence only in

relation to the codefendant, and consequently that avoidance of any

such jury confusion was “vital” to the defendant. Id.

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 In Street, however, the State introduced a codefendant’s

written statement to rebut the defendant’s contention that law

enforcement officials had coerced his confession. Street contended

that, prior to his confession, the sheriff had read the

codefendant’s statement to him, then forced Street to parrot the

details of that statement in Street's own confession. Street, 471

U.S. at 411. In order to rebut the defense theory that the Street

confession was coerced in this way, the State introduced the

codefendant’s written statement to demonstrate how it differed in

significant details from the Street confession. Id. at 411-12.

The trial court instructed the jury that the codefendant's

statement could not be considered for the truth of the matters

asserted (viz., Street’s participation in the burglary and murder),

but only to rebut the defense claim that Street had been coerced

into parroting the codefendant’s statement. Id. at 412.

In upholding the admission in evidence of the written

statement given by Street's codefendant, the Court distinguished

Bruton on the ground that the codefendant’s statement there was

hearsay, in that it was introduced to prove the truth of the

matters asserted (viz., codefendant’s guilt), whereas the State’s

use of the codefendant statement against Street was not hearsay, in

that it was introduced solely to enable the jury to compare the two

confessions and to assess Street’s contention that the sheriff had

coerced him into parroting his codefendant’s statement, rather than

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to prove that Street had participated in the burglary and murder.

Id. at 413-14. “The nonhearsay aspect of [the codefendant’s]

confession – not to establish what happened at the murder scene but

what happened when [Street] confessed – raised no Confrontation

Clause concerns.” Id. at 414.

The Court then observed that Street’s case was similar to

Bruton in one respect only: the jury might have disregarded the

limiting instruction and used the codefendant statement for the

improper purpose of inferring Street’s participation in the

burglary and murder. Id. In rejecting this prospect, the Court

first re-emphasized the “crucial” presumption that juries normally

follow their instructions. Id. at 415. The Street confession also

was crucial to the government’s ability to establish his

participation in the burglary and murder, and the Street allegation

that his confession had been coerced (hence was inadmissible) could

only be accurately evaluated if the jury were permitted to compare

it with the codefendant’s statement to determine what differences

(if any) the two versions contained. Id. Unlike in Bruton (viz.,

severance of the two codefendants' trial), the trial court had no

practicable alternatives to the admission of the codefendant

statement which not only would have fostered this essential truth-

finding function but also eliminated the risk that the jury would

disregard the limiting instruction and misuse the evidence, given

that (I) a redaction of the codefendant statement to remove all

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references to Street would have provided the jury an inaccurate

depiction of the codefendant’s statement, likely resulting in more

differences between it and the Street confession, and further

undercutting the Street coercion defense theory; and (ii) the

Street joint trial had already been severed from his codefendant’s.

Id. at 415-16 & 416 n.7. Finally, the Court rejected the Street

argument that it was constitutionally mandated that the State call

his codefendant to testify at Street's trial, then noted that the

codefendant had no personal knowledge as to the particular issue

regarding which his written statement was introduced: whether the

sheriff subsequently coerced Street into parroting the

codefendant’s confession. Id. at 416.

Citing Street, the state appeals court affirmed the

admission of the Benson “nonhearsay” statement for the purpose of

establishing the obstruction and intimidation count, rather than

the firearm possession count. Furr, 788 N.E.2d at 596-97. The

court noted further that the jury need not have decided whether the

contents of the Benson statement were true or false, but merely

that the Benson statement had induced Furr to threaten him. Id. at

597.

Now, on appeal from the district court order denying the

habeas petition, Furr contends that the state appeals court’s

decision was contrary to, or involved an unreasonable application

of Street, because it held that it was entirely sufficient for

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Confrontation Clause purposes that the Benson statement was

nonhearsay and that the trial court had given a limiting

instruction, whereas the Street Court went on to weigh several

additional factors: (i) how important the codefendant’s statement

was to the prosecution’s case; (ii) whether there were practicable

alternatives to admitting the codefendant's statement, e.g.,

severance; and (iii) whether the prosecutor's closing arguments

encouraged the jury to misuse the codefendant’s statement against

Furr. Furr maintains that, had the state appellate court

considered these mandatory additional factors, it would have

concluded that the Benson statement was inadmissible, because (i)

it was not critical to the State’s case, since it unquestionably

was inadmissible on the firearm possession count; (ii) it was

practicable to require that the State sever the trial of the

firearm-possession count from the obstruction/intimidation count;

and (iii) the prosecutor's closing argument implicitly utilized the

Benson statement for hearsay purposes by asserting that Furr’s

letter to Benson evidenced Furr’s consciousness of guilt.

The state appellate court’s interpretation and

application of Street to the Furr case readily passes muster under

§ 2254(d)(1). Furr inappropriately extracted his proposed

interpretation not from the Street majority opinion, but from its

two-justice concurrence. Street, 471 U.S. at 417-18 (Brennan, J.,

concurring) (“The out-of-court confession is admissible for

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nonhearsay purposes only because that confession was essential to

the State’s rebuttal of respondent Street’s defense and because no

alternative short of admitting the statement would have adequately

served the State’s interest. . . . [T]he record contains no

suggestion that the State was engaged in any improper effort to

place prejudicial hearsay evidence before the jury.”). As the

Court issued a majority decision endorsed by six other justices,

however, and not merely a plurality opinion, the concurrence cannot

be considered a viable Court holding. See Alexander v. Sandoval,

532 U.S. 275, 285 n.5 (2001); cf. Marks v. United States, 430 U.S.

188, 193 (1977) (“When a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent of five

Justices, ‘the holding of the Court may be viewed as that position

taken by those Members who concurred in the judgments on the

narrowest grounds.’”) (citation omitted). Thus, the concurrence

simply did not command support from a majority of Justices.

As we noted in outlining the Street majority opinion, the

Court did not purport to prescribe a mandatory checklist of factors

to be considered in every case. Rather, it noted that, absent

other circumstances, it is sufficient that the codefendant

statement is nonhearsay – viz., not admitted for the truth of the

matter asserted, and provided the court gives a limiting jury

instruction to that effect. Street, 471 U.S. at 414 (“The

nonhearsay aspect of [the codefendant’s] confession – not to prove

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what happened at the murder scene but to prove what happened when

[Street] confessed – raises no Confrontation Clause concerns.”);

see Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“The

[Confrontation] Clause also does not bar the use of testimonial

statements for purposes other than establishing the truth of the

matter asserted.”).3 The Court then observed that, in some cases,

circumstances might exist which nonetheless could create a risk

that the jury might misuse the evidence, and thus rebut the normal

presumption that juries would follow limiting instructions.

Turning to the facts in the Street case, the Court noted the

absence of such special circumstances, observing that the

government obviously needed the jury to compare the contents and

details of the two confessions to rebut the Street coercion

defense. Id. at 416. At no point in its discussion, however, did

the majority purport to endorse the mandatory consideration of a

checklist of factors, let alone the factors which the two justices

in concurrence considered dispositive.

3
Furthermore, we reject the subsidiary contention that the
trial court did not give an adequate limiting instruction, in that
it failed to tell the jury in so many words that they could not
consider the “truth” of the Benson statement, but instead
instructed that the statement could be considered only with respect
to the obstruction/intimidation count. First, the two versions are
functionally equivalent, given that possession of a firearm was not
a fact necessary to establish the obstruction/intimidation count.
Second, and more importantly, the court further instructed: “[Y]ou
are not to consider the content of the [Benson] statement in
determining whether the defendant possessed the firearm or
ammunition.” No more was necessary.

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 Furr points to no subsequent case which has interpreted

Street as imposing such a mandatory checklist. We frequently have

stated the Street case holding as: “In general, nonhearsay

statements or statements not offered for the truth of the matter

asserted do not raise Confrontation Clause concerns.” United

States v. Trenkler, 61 F.3d 45, 62 (1st Cir. 1995). Thus, the

determination as to whether the general rule of admissibility in

Street applies is assessed case by case, based upon the presence of

whatever special circumstances would create an unreasonable risk

that the jury disregarded their instructions.

Of course, for habeas-review purposes we need not

determine whether the state appellate court’s interpretation and

application of Street is legally correct, but simply that it was

neither “contrary to,” nor an “unreasonable application” of,

Street. Horton, 370 F.3d at 80. For the above-stated reasons, we

must conclude that it obviously was not. The state court

determined that the Benson statement was nonhearsay, because the

jury did not need to decide whether the contents of the Benson

statement were true or false, but merely whether the statement

prompted Furr to threaten him. Furr, 788 N.E.2d at 597. The fact

that the appeals court did not proceed to discuss the other factors

mentioned in the Street concurrence connotes, at most, that it did

not consider that the Furr case gave rise to any special

circumstances that might risk jury disregard of the limiting

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instruction.

Insofar as Furr suggests that the appeals court was

compelled, on the present record, to find (and hence discuss) any

such special circumstances, we must disagree. It is quite obvious

that the Benson statement was crucial for the prosecution to

establish the obstruction/intimidation count, because it was

necessary to prove that Benson made a statement, of which Furr had

acquired knowledge, and on account of which Furr threatened and

intimidated Benson. See Commonwealth v. Perez, 715 N.E.2d 76, 79

(Mass. App. Ct.) (“The witness intimidation statute [Mass. Gen.

Laws Ann. ch. 268, § 13B] applied if the defendants knew of the

criminal proceeding and believed that [the victim] was a potential

witness.”), review denied, 722 N.E.2d 976 (Mass. 1999).

Further, the Street Court simply observed as an aside, in

a footnote, that the trial court could not sever the defendant’s

and the codefendant’s trials as an alternative to admitting in

evidence the codefendant statement because their trials already had

been severed. Street, 471 U.S. at 416 n.7. This observation – in

the nature of a negative pregnant – reasonably cannot be construed

either as holding that the Court would have reached a different

decision had the trials not been severed, or that trial courts must

invariably consider severance as an alternative to admitting

nonhearsay evidence for limited purposes.

The challenged closing argument by the prosecution

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referred to the Furr letter to Benson, and suggested that its

contents demonstrated that Furr had a guilty conscience. The

prosecutor did not argue that the jury should draw such an

inference from the Benson statement. See Commonwealth v. Perez,

825 N.E.2d 1040, 1045 (Mass. 2005) (“‘It is well established that

evidence regarding threats or intimidation of key witnesses for the

prosecution is admissible to demonstrate consciousness of guilt.’”)

(citation omitted). Thus, the prosecution did not seek to lure the

jury astray from the limiting instruction.

Finally, Furr cites Thomas v. Hubbard, 273 F.3d 1164 (9th

Cir. 2002), overruled on other grounds, Payton v. Woodford, 299

F.3d 815, 829 n.11 (9th Cir. 2002), and United States v. Walker,

148 F.3d 518 (5th Cir. 1998), as illustrative decisions supporting

the view that the Massachusetts appeals court decision in the

present case is “contrary to” or an “unreasonable application” of

Street. Instead, Thomas and Walker stand for the unremarkable

proposition that, in certain circumstances, “out-of-court

[nonhearsay] statements [may be] so prejudicial that a jury would

be unable to disregard their substantive content regardless of the

purpose for which they are introduced and regardless of any

curative instruction.” Thomas, 273 F.3d at 1173 (finding such

special circumstances where statements were “emotionally charged,”

and that “the [other] evidence against the defendant was far from

overwhelming and the case came down to a credibility battle between

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the defendant and an accusing witness.”). As we already noted, the

inquiry into possible misuse of evidence by a jury was treated

quite flexibly in Street, see 471 U.S. at 414, and it was

reasonable for the state appeals court to determine that there are

no such extenuating circumstances in this case.

Moreover, the Benson statement can hardly be considered

unduly inflammatory. Its essential contents could readily be

inferred from Furr’s threatening letter, the admissibility of which

Furr has not challenged. Furthermore, unlike the State in Thomas,

the prosecution in the Furr case possessed other competent evidence

from which the jury rationally could infer that he possessed the

firearm, particularly the police officers’ own observations, upon

arriving at the scene of the shooting, that Furr tossed the firearm

away.

For all the above reasons, we conclude that the appeals

court decision is neither contrary to nor an unreasonable

application of the Street decision, and we therefore affirm the

district court ruling denying the habeas claim based upon the

Confrontation Clause.

C. The Due Process Claim

Furr was sentenced pursuant to the Massachusetts armed

career criminal statute, which provides: “Whoever, having been

previously convicted of a violent crime or of a serious drug

offense, both as defined herein, violates the provisions of

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paragraph (a) . . . of section 10 [viz., illegal possession of a

firearm] shall be punished by imprisonment in the state prison for

not less than three years nor more than 15 years.” Mass. Gen. Laws

Ann. ch. 269, § 10G(a) (emphasis added). “For the purposes of this

section, ‘violent crime’ shall have the meaning set forth in

section 121 of chapter 140.” Id. § 10G(e). “‘Violent crime’ shall

mean any crime punishable by imprisonment for a term exceeding one

year, or any act of juvenile delinquency involving the use or

possession of a deadly weapon that would be punishable by

imprisonment for such term if committed by an adult, that: (i) has

as an element the use, attempted use or threatened use of physical

force or a deadly weapon against the person of another; (ii) is

burglary, extortion, arson or kidnapping; (iii) involves the use of

explosives; or (iv) otherwise involves conduct that presents a

serious risk of physical injury to another.” Mass. Gen. Laws Ann.

ch. 140, § 121 (emphasis added). It is undisputed that Furr had

prior juvenile adjudications for armed carjacking, kidnapping, and

assault and battery with a dangerous weapon which satisfy the § 121

definition of “violent crime.” See supra note 2.

Furr contended in the state appeals court that subsection

10G(a) is “unduly vague” because it failed to place him on fair and

adequate notice that his prior juvenile adjudications counted as

prior “convictions,” thereby contravening his federal due process

rights. See Bouie v. City of Columbia, 378 U.S. 347, 354-55

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(1964). More particularly, Furr argues that (i) § 10G expressly

applies to persons “having been previously convicted of a violent

crime,” and does not say “or adjudicated”; (ii) Massachusetts law

long has presumed that, absent a clear legislative expression to

the contrary, the statutory term “conviction” does not encompass

juvenile adjudications, see Commonwealth v. Connor C., 738 N.E.2d

731, 738 (Mass. 2000); (iii) unlike § 10G(a), other sections of the

same statutory enactment use both the words “convictions” and

adjudications,” which suggests that the Legislature intended a

distinction; (iv) § 10G(a)'s and (e)’s cross-reference to the

definition of “violent crime,” in Mass. Gen. Laws Ann. ch. 140, §

121, is inconclusive, because that same cross-reference appears in

many other statutes besides § 10G, see id. ch. 140, § 129B(1)(I),

and thus could be read as merely imposing restrictions upon the

types of adult convictions which could be considered under §

10G(a); and (v) the juvenile statutes interpreted in Connor C. –

viz., Mass. Gen. Laws Ann. ch. 119, §§ 52, 54, 58 – are

distinguishable from § 10G since they expressly cross-referenced to

a repeat offender statute which used only the word “conviction,”

and not “adjudication.”

The state appeals court rejected Furr’s construction of

§ 10G(a), which presented an issue of first impression. The court

found that subsection 10G(e)’s cross-reference to the “violent

crime” definition “communicate[s] unmistakably a legislative intent

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that an adjudication of a juvenile as a youthful offender, a form

of aggravated juvenile delinquency, be taken as a ‘conviction’ for

purposes of [§] 10G.” Furr, 788 N.E.2d at 594-95 (observing that

otherwise the cross-reference was purposeless). The appeals court

analogized this cross-reference to the one in Connor C.: “‘If a

prior “adjudication” does not satisfy the “conviction” requirement

. . . then the Commonwealth could never indict a child for a second

or subsequent firearms offense . . . because a child is never

“convicted” of violating a statute.’” Id. at 595 (citation

omitted). Finally, the appeals court rejected the Bouie due-

process argument advanced by Furr:

[Defendant] also argues that [§] 10G is vague.
. . . Prescinding from the question whether
the defendant waived these points by not
raising them in the Juvenile Court, neither
has potency. Our discussion, interpretation,
and application of § 10G in this case dispose
of the claim that it [viz., § 10G] is
unfathomable.

Id. (emphasis added).

Unable to mount a direct challenge to the state appeals

court’s interpretation of the state statute, Furr is left to claim

that the appeals court decision is “contrary to” or an

“unreasonable application” of Bouie, viz., that the Due Process

Clause requires that a state criminal statute give fair and

adequate warning as to the nature of the conduct to be

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criminalized.4 First, he contends that the court employed the

wrong legal standard, by requiring him to demonstrate that the

statutory interpretation of § 10G, adopted by the appeals court,

was “unfathomable,” rather than merely “unforeseeable.” Bouie, 378

U.S. at 355. As the context of the above-quoted passage from the

appeals court decision makes clear, however, the court used the

“not unfathomable” phrase – not as an exegesis of the Bouie

standard – but simply to counter Furr’s argument that § 10G is

hopelessly vague, i.e., not amenable to any reasonable

interpretation. Accordingly, we cannot conclude that the appeals

court’s interpretation of § 10G is “contrary to” the due-process

standard set forth in Bouie.

Finally, Furr reiterates his proposed interpretation of

§ 10G, see supra, and suggests that it is so conclusively

reasonable as to render the appeals court’s contrary construction

unreasonable for purposes of habeas review. We disagree. The

Bouie “foreseeability” standard obviously is fluid and inexact.

The most that can be said in the instant case is that Furr and the

appeals court set forth two plausible statutory interpretations.

As Connor C. recognized, the word “conviction” is not so inherently

4
Brady contends that Bouie simply does not apply at all to the
prior conviction component of a recidivist statute, citing Dretke
v. Haley, 541 U.S. 386, 395 (2004) (noting that the Court has
exempted proof of prior convictions from some generally applicable
constitutional rules, such as the requirement that these “facts” be
proved beyond a reasonable doubt). We need not reach this issue.

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narrow or precise a term that it could never be used, either in

legal or common parlance, to encompass juvenile adjudications. Cf.

Lovely v. Cunningham, 796 F.2d 1, 5 (1st Cir. 1986) (noting that

Bouie found fault with state court’s adoption of broad definition

to words which normally had a narrow and precise denotation). Even

assuming that one might quibble somewhat with the court’s

suggestion that § 10G(e)’s cross-reference to the definition of

“violent crime” necessarily becomes purposeless unless the

Legislature meant to bring juvenile adjudications into the ambit of

§ 10G, it was hardly unreasonable for the appeals court to consider

that the Legislature likely foresaw this as among the necessary

consequences resulting from that incorporating cross-reference.5

Ironically, in contrast to this common-sense interpretation, the

Furr interpretation is convoluted, requiring an extensive

contextual analysis and comparison of a variety of statutes. Thus,

whatever the reasonableness of the Furr interpretation, there is no

question that it lacks the ready foreseeability of the state

appeals court’s construction. Accordingly, in light of the

deferential standard of habeas review, we conclude that the appeals

court’s application of § 10G to the facts in the Furr case was

neither “contrary to” nor an “unreasonable application” of Bouie.

5
The Furr efforts to circumscribe the holding in Connor C. are
unpersuasive, since he relies primarily upon the dissent in that
case, rather than the majority opinion.

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Affirmed.

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