Burks, Jr. v. Duboise

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                              _________________________


No. 94-2197


OSCAR N. BURKS, JR.,

                                Petitioner, Appellant,



                                         v. 



                                   LARRY E. DUBOIS,

                                Respondent, Appellee.



                              _________________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                      [Hon. Nancy Gertner, U.S. District Judge]
                                           ___________________



                              _________________________


Before



                                Selya, Cyr and Boudin,



                                   Circuit Judges.
                                   ______________


_________________________



               Neil F. Colleran for appellant.
               ________________

               Gregory I.  Massing, Assistant  Attorney General,  with whom
               ___________________

          Scott Harshbarger, Attorney General, was on brief, for appellee.
          _________________



                              _________________________



                                     June 8, 1995



                              _________________________


SELYA, Circuit Judge.   Petitioner-appellant, Oscar  N.
                    SELYA, Circuit Judge.
                           _____________



          Burks, Jr., asked the federal district court to invoke its habeas



          corpus powers, 28 U.S.C.     2241-2254 (1988), and set  aside his



          state conviction on charges of trafficking in cocaine, exploiting



          a  minor   for  illegal  drug-related   purposes,  and  illicitly



          conveying  articles to a state penal institution.  See Mass. Gen.
                                                             ___



          L.  ch. 94C,    32E,  32K  (1989); Mass.  Gen. L.  ch. 268,    31



          (1989).     The  district  court  declined  to  issue  the  writ.



          Petitioner appeals.  We affirm.



                                          I
                                          I
                                          _



                                      Background
                                      Background
                                      __________



                    The stage can be set for consideration of  this single-



          issue appeal without lengthy  elaboration.  In doing so,  we take



          the  facts   in  the   conventional  manner  prescribed   by  the



          jurisprudence  of  habeas  corpus.    See  28  U.S.C.     2254(d)
                                                ___



          (stipulating presumption  of correctness  that attaches  to state



          court findings of  fact in federal habeas proceedings);  see also
                                                                   ___ ____



          Miller v. Fenton, 474 U.S. 104, 112-15 (1985).
          ______    ______



                    Petitioner,   a   correctional  officer   at   a  state



          penitentiary in Gardner,  Massachusetts, agreed to  facilitate an



          inmate's  scheme to smuggle contraband into the prison.  The plan



          called  for  petitioner to  pick  up  an ounce  of  cocaine  at a



          predetermined spot outside the institution and deliver  it to the



          inmate  in  return  for  a  $200  fee  plus  a  jot  of  cocaine.



          Petitioner  did not know that his newfound crony was fronting for



          the state police.


2



After  one  unsuccessful   attempt,  the  inmate   told



          petitioner  that the drugs and the money  would be deposited in a



          residential mailbox in Worcester.  On August 15, 1991, petitioner



          sojourned to that  city, located the house (which, unbeknownst to



          him,  was under intensive  police surveillance), and  drove by it



          several  times.  He then visited  a nearby doughnut shop where he



          invented a cock-and-bull  story, the  gist of which  was that  he



          wished to  retrieve a  letter from his  girlfriend's mailbox  but



          could not do  so himself.  On this basis  he recruited a 14-year-



          old boy as an unwitting accomplice,  agreeing to pay the lad  $30



          to fetch the prize from the mailbox.



                    The pair reconnoitered the drop site.   Petitioner then



          watched  as the boy approached  the mailbox and  withdrew a paper



          bag.   Instead  of waiting  for his  courier to  return, however,



          petitioner  drove  away.   We think  a  jury could  properly have



          inferred either that petitioner's  nerve failed or that  he spied



          the  stakeout.  At any rate,  he never obtained possession of the



          bag. 



                    In  due  course, the  authorities  arrested petitioner,



          charged  him, and  proceeded to  trial.   After the  Commonwealth



          presented its case, the petitioner testified in his  own defense.



          He admitted colloguing with the inmate.  He further admitted that



          he  knew the  mailbox  contained both  drugs  and money,  but  he



          assumed that they would  be in separate envelopes.  He swore that



          he only intended to pocket the cash, not  to deliver the cocaine.



          When  he saw the paper bag, he thought that it probably contained


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drugs.  At that point, he panicked and fled. 



                    On cross-examination the  prosecutor asked  petitioner:



          "And, sir, you knew that that package contained drugs, and still,



          sir, you sent that  fourteen year old kid to  retrieve it, didn't



          you,  sir?"   The  superior court  judge,  sua sponte,  ruled the
                                                     ___ ______



          question  improper, interjecting:   "That's argumentative."   The



          prosecutor immediately shifted gears.1



                    During   closing   argument,   the  prosecutor,   using



          rhetorical questions to flay her prey, took unwarranted liberties



          with this portion of her cross-examination.  She argued:



                         And what  does  the defendant  do?    He

                    leaves the  fourteen year  old high  and dry,

                    knowing   I asked  him.  I said to  him, "You

                    knew  that  package  contained  cocaine,  but

                    still   you  sent  a  fourteen  year  old  to

                    retrieve it?"



                         And what did the defendant say?  "Yes."



          Petitioner's  trial counsel  did not  object to  the prosecutor's



          flagrant misstatement.   In the  end, the  jury found  petitioner



          guilty.



                    Following  the  imposition   of  sentence,   petitioner



          secured the services  of successor  counsel and moved  for a  new



          trial,  arguing  that  the  prosecutor's  distortion  had  caused



          justice to miscarry.   The  trial judge rejected  the motion  and



          petitioner appealed.   The Massachusetts  Appeals Court summarily



                              
          ____________________



               1At first, it was thought that petitioner did not answer the

          question.  In  considering petitioner's motion  for a new  trial,

          however, the judge queried the court reporter, who  consulted her

          tape  recording of the testimony and reported that petitioner had

          in fact responded audibly, stating:  "No. I did not."



                                          4



affirmed  the denial  of relief, see  Commonwealth v.  Burks, 608
                                           ___  ____________     _____



          N.E.2d 1066 (Mass. App. Ct. 1993) (table) (unpublished rescript),



          and the Supreme Judicial Court declined further appellate review,



          see Commonwealth v. Burks, 617 N.E.2d 639 (Mass. 1993) (table).
          ___ ____________    _____



                    Little daunted, petitioner sought habeas corpus in  the



          federal district  court.  He  advanced a single claim:   that the



          prosecutor's  misstatement  of  the  evidence  in  her  summation



          deprived him  of due  process and  thwarted his  right to  a fair



          trial.  The  respondent, a state correctional  official, moved to



          dismiss, asserting  that because  petitioner had not  objected to



          the  misstatement  when  it  was  uttered  in  state  court,  his



          constitutional claim could not be entertained in a federal habeas



          proceeding.  Petitioner  acknowledged the procedural  default but



          nonetheless  opposed dismissal  on two  bases.   He said  that he



          could demonstrate  cause for, and prejudice  from, the procedural



          default; and, moreover, that  absent habeas relief, a miscarriage



          of justice  would go  uncorrected.  Judge  Gertner, adopting  the



          report and  recommendation of a magistrate  judge, overrode these



          objections and dismissed the petition.  This appeal followed.



                                          II
                                          II
                                          __



                                       Analysis
                                       Analysis
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                                          A.
                                          A
                                          _



                             Applicable Legal Principles
                             Applicable Legal Principles
                             ___________________________



                    The  habeas  corpus  anodyne  is  designed  neither  to



          provide an additional layer  of conventional appellate review nor



          to  correct garden-variety errors,  whether of fact  or law, that


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may stain  the record  of a state  criminal trial.   Rather,  the



          remedy is limited to  the consideration of federal constitutional



          claims.   See  Herrera v.  Collins, 113  S. Ct.  853, 860  (1993)
                    ___  _______     _______



          (affirming that the purpose of federal habeas corpus review is to



          ensure  that individuals are  not imprisoned in  violation of the



          Constitution); see  also Barefoot v.  Estelle, 463 U.S.  880, 887
                         ___  ____ ________     _______



          (1983) ("Federal courts  are not  forums in  which to  relitigate



          state  trials.").  Thus, federal habeas review is precluded, as a



          general proposition, when a state  court has reached its decision



          on  the basis  of an adequate  and independent  state-law ground.



          See  Coleman v.  Thompson, 501  U.S. 722,  729 (1991);  Harris v.
          ___  _______     ________                               ______



          Reed, 489 U.S. 255, 262 (1989); Ortiz v. Dubois, 19 F.3d 708, 714
          ____                            _____    ______



          (1st Cir. 1994), cert. denied, 115 S. Ct. 739 (1995).
                           _____ ______



                    A defendant's failure to object  in a timely manner  at



          his  state   criminal  trial  may  constitute   an  adequate  and



          independent state ground  sufficient to trigger  the bar rule  so



          long  as the  state  has a  consistently applied  contemporaneous



          objection  requirement and the state  court has not  waived it in



          the particular case by resting its decision on some other ground.



          See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Puleio  v. Vose,
          ___ __________    _____                          ______     ____



          830 F.2d 1197, 1199 (1st Cir.  1987), cert. denied, 485 U.S.  990
                                                _____ ______



          (1988).  Hence, a state court decision  resting upon a finding of



          procedural default   such  as a decision rooted in  a defendant's



          noncompliance   with   an   unwaived  contemporaneous   objection



          requirement     forecloses  federal  habeas  review   unless  the



          petitioner can  demonstrate cause  for the default  and prejudice


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stemming therefrom, or, alternatively,  unless the petitioner can



          show  that a refusal to consider the merits of the constitutional



          claim will work a miscarriage of justice.   See Coleman, 501 U.S.
                                                      ___ _______



          at 750; Harris, 489 U.S. at 262.
                  ______



                    This  framework is  directly pertinent  to petitioner's



          appeal.   Massachusetts has  a  routinely enforced,  consistently



          applied contemporaneous  objection rule.  See,  e.g., Puleio, 830
                                                    ___   ____  ______



          F.2d  at 1199; Commonwealth v. Fluker, 385 N.E.2d 256, 261 (Mass.
                         ____________    ______



          1979); see also  Mass. R. Crim.  P. 22.  Petitioner  honored this
                 ___ ____



          rule  only  in  the breach;  after  all,  his  petition is  based



          exclusively on  his claim that the  prosecutor misrepresented the



          evidence   when  summing   up,   yet  he   failed   to  lodge   a



          contemporaneous  objection at the time the misrepresentation took



          wing.  Moreover, the state  courts relied on, and did not  waive,



          the contemporaneous objection requirement; the appeals court, for



          instance, rested its rejection of petitioner's belated complaints



          about the prosecutor's misstatement squarely on this adequate and



          independent state  ground.2   Consequently, we  have before  us a



          classic  example  of a  procedural  default,  and petitioner  can



          succeed  in his habeas case only by showing cognizable cause for,



                              
          ____________________



               2To be sure, the  appeals court also reviewed the  merits of

          petitioner's contentions to see  whether a miscarriage of justice

          lurked in the record.   But, given the contours  of Massachusetts

          practice, see,  e.g., Mass. Gen. L.  ch. 211A,    10 (1989), that
                    ___   ____

          sort of limited review, clearly labelled, does not work a waiver.

          See  Tart v.  Massachusetts, 949  F.2d 490,  496 (1st  Cir. 1991)
          ___  ____     _____________

          (explaining  that state appellate  review under the Massachusetts

          miscarriage  of justice standard does not  amount to state waiver

          of  the contemporaneous objection rule); Puleio, 830 F.2d at 1200
                                                   ______

          (same).



                                          7



and  cognizable  prejudice  from,   his  procedural  default  or,



          alternatively, by demonstrating that  the federal court's failure



          to address the claim on habeas review will occasion a miscarriage



          of justice.



                                          B.
                                          B.
                                          _



                                 Cause and Prejudice
                                 Cause and Prejudice
                                 ___________________



                    Faced  by a  state-court  judgment that  rests upon  an



          adequate and  independent state  ground, a habeas  petitioner has



          the burden of proving both cause and prejudice.  See Coleman, 501
                                                           ___ _______



          U.S.  at 750;  Wainwright, 433  U.S. at  87; Puleio, 830  F.2d at
                         __________                    ______



          1202.  Here, we start   and end   with cause.3



                    In the  habeas context,  cause is a  term of  art.   To



          excuse a procedural  default, a petitioner's cause must relate to



          an objective factor, external to  the defense, that thwarted  (or



          at least  substantially obstructed) the efforts  of the defendant



          or his counsel  to obey the state's procedural rule.   See Murray
                                                                 ___ ______



          v.  Carrier, 477 U.S. 478,  488 (1986); Magee  v. Harshbarger, 16
              _______                             _____     ___________



          F.3d  469, 471  (1st  Cir.  1994).    Mere  attorney  error,  not



          amounting  to  ineffective   assistance  in  a   constitutionally



          significant  sense, see, e.g., Scarpa  v. Dubois, 38  F.3d 1 (1st
                              ___  ____  ______     ______



          Cir.  1994), cert. denied, 115  S. Ct. 940  (1995) and additional
                       _____ ______                          ______________

                              
          ____________________



               3Because we descry no  cognizable cause sufficient to excuse

          petitioner's procedural  default, see infra, we  have no occasion
                                            ___ _____

          to discuss the  prejudice prong  of the two-part  inquiry in  any

          great  detail.  We add in passing, however, that, having reviewed

          the  full  record, the  state's case  appears  to have  been very

          muscular.   Viewed in light of all the evidence, the prosecutor's

          incorrect  statement does  not seem  to us  to have  actually and

          substantially prejudiced  petitioner.  See, e.g.,  Ortiz, 19 F.3d
                                                 ___  ____   _____

          at 714 (discussing prejudice standard).



                                          8



petition for cert. filed  (U.S. Oct. 27, 1994) (No.  94-9157), is
          ________________________



          insufficient  to constitute  cause.4   See Coleman,  501 U.S.  at
                                                 ___ _______



          753; Murray,  477 U.S.  at 488;  Puleio, 830 F.2d  at 1201.   The
               ______                      ______



          principle  hardly could be to  the contrary.   If inadvertence of



          counsel,  without  more,  were  deemed  to  constitute sufficient



          cause, the cause requirement would be reduced to little more than



          a speed bump on the road to a federal forum.



                    In  an effort to  show that his  procedural default was



          caused by an external, objective impediment, Burks avers that his



          trial  counsel  did  not  hear  the  answer  to  the prosecutor's



          improper question  (quoted supra  p. 4).   This  fact, petitioner
                                     _____



          contends,  caused counsel's  later  silence when  the  prosecutor



          incorrectly recounted the  testimony.  Petitioner's  thesis melts



          under the hot glare of scrutiny.



                    Assuming  for  the  sake  of  argument  that  counsel's



          failure to hear a  witness' response may constitute  an external,



          objective impediment under  some circumstances,  cf. Puleio,  830
                                                           ___ ______



          F.2d  at 1201  (discussing,  but sidestepping  as unexhausted,  a



          claim  that trial  counsel's  hearing impairment  operated as  an



          external,   objective   impediment   to   compliance   with   the



          Massachusetts contemporaneous  objection rule),  it cannot do  so



          here.  To  provide cause, a factor  not only must be  objectively



          ascertainable  and external to  the defense,  but also  must have



          brought  about  the event  of default.    See generally  James S.
                                                    ___ _________

                              
          ____________________



               4We  note   that  petitioner  did  not   assert  ineffective

          assistance  of counsel as a basis for relief in his habeas corpus

          application, nor has he tendered such a claim on appeal.



                                          9



Liebman, Federal Habeas Corpus Practice and Procedure   24.3,  at
                   ____________________________________________



          381-83 (Supp. 1993).  In other words, cause, as the name implies,



          must  bear   a  causal  relationship  to   noncompliance.    That



          relationshipis utterlylacking inthis instance. Weexplain briefly.



                    There  is no  foundation in  the record  for suggesting



          that  counsel did not hear the  trial judge brand the question as



          being ultracrepidarian.  And  because the question itself  was an



          improper  subject  for  closing  argument,  defense  counsel  had



          precisely  the  same  incentive  to pounce  on  the  prosecutor's



          subsequent reference to it whether Burks answered "no" or did not



          answer at all.  In addition, even if defense counsel did not hear



          Burks respond in the  negative, the prosecutor's misquotation was
                        __ ___  ________



          still a potentially harmful distortion, and defense counsel could



          and  should  have  objected  when the  prosecutor  asserted  that



          petitioner had answered in the affirmative.  On this basis, then,
                                  __ ___ ___________



          the  lower court  correctly concluded  that petitioner  failed to



          show  any  legally  cognizable  cause sufficient  to  excuse  his



          procedural default.



                                          C.
                                          C.
                                          _



                                Miscarriage of Justice
                                Miscarriage of Justice
                                ______________________



                    Even absent a showing of cause and prejudice, a federal



          court exercising its habeas  powers should nonetheless overlook a



          procedural default and hear a barred constitutional  claim on the



          merits if  its failure  to do  so would  result in a  fundamental



          miscarriage of justice.  See Murray, 477 U.S. at 495-96.  This is
                                   ___ ______



          a narrow exception to the cause-and-prejudice imperative,  seldom


10



to be used, and explicitly tied to a showing of actual innocence.



          See Schlup v. Delo, 115 S. Ct. 851, 864 (1995); Ortiz, 19 F.3d at
          ___ ______    ____                              _____



          714; see also  Watkins v. Ponte, 987 F.2d 27,  31 (1st Cir. 1993)
               ___ ____  _______    _____



          (explaining  that,  in  a   habeas  case,  the  "petitioner  must



          supplement the constitutional violation with a `colorable showing



          of factual innocence'") (quoting McCleskey v. Zant, 499 U.S. 467,
                                           _________    ____



          495 (1991)).



                    To  be sure,  a habeas  petitioner  need not  prove his



          innocence beyond all  doubt in order  to reach the safe  haven of



          the  miscarriage exception:   it suffices  if the  petitioner can



          show  a  probability  that  a  reasonable  jury  would  not  have



          convicted  but for  the constitutional  violation.5   See Murray,
                                                                ___ ______



          477 U.S. at 496.



                    Here, petitioner has not made a satisfactory showing of



          actual innocence.  His  argument on this point alludes  to no new



          information  suggesting  innocence,   but  merely  rehashes   the



          testimony  adduced at  his  trial  in  an  attempt  to  foster  a



          suspicion that  the prosecutor's  overreaching may have  been the



          straw that broke the dromedary's back  and, thus, led the jury to



          convict.   However, the miscarriage of  justice standard requires

                              
          ____________________



               5Respondent  asserts that Sawyer v. Whitley, 112 S. Ct. 2514
                                         ______    _______

          (1992), has placed  a gloss  on Murray,  and now  requires, in  a
                                          ______

          noncapital  case,  that  petitioner  make  a  showing  of  actual

          innocence  by "clear and  convincing" evidence, rather  than on a

          probability standard.  Id. at  2523.  For two reasons,  we cannot
                                 ___

          embrace  this thesis,  at  least at  the  present time.    First,

          respondent may be reading Sawyer too broadly, especially in light
                                    ______

          of  Schlup.  Second,  we note that, in  all events, the appellant
              ______

          cannot satisfy  even the  probability standard limned  in Murray.
                                                                    ______

          Consequently,  we leave to  another day the  question of Sawyer's
                                                                   ______

          (and Schlup's) effect, if any, on the lessons of Murray.
               ______                                      ______



                                          11



more than a  possibility of prejudice, see Schlup,  115 S. Ct. at
                                                 ___ ______



          867  & n.45;  Sawyer v.  Whitley, 112  S. Ct.  2514, 2522  & n.13
                        ______     _______



          (1992), and petitioner's excursion through the record does not by



          any  stretch  of the  imagination  show a  probability  of actual



          innocence.   Accordingly, his  speculation about what  might   or



          might not    have been the  outcome of an error-free  trial is an



          exercise in futility.    Put another way, petitioner's recreation



          of what transpired in the state  trial court shows, at most, that



          there was a  legitimate jury question  as to his guilt,  and that



          the prosecutor placed her thumb on  the scales of justice at  one



          point.   This is not  enough to qualify  for extraordinary relief



          under  Schlup and  its  precursors.   As  Justice Stevens  wrote,
                 ______



          "[w]ithout any new evidence of innocence, even the existence of a



          concededly meritorious  constitutional violation is not in itself



          sufficient to establish a miscarriage of justice that would allow



          a  habeas court to reach the merits  of a barred claim."  Schlup,
                                                                    ______



          115 S. Ct. at 861.



                    We  need go  no further.   Because  petitioner has  not



          shown that the failure to entertain his constitutional claim more



          likely  than not  will  result in  a  fundamental miscarriage  of



          justice, his habeas petition remains a casualty of his procedural



          default.


Affirmed.
          Affirmed
          ________


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