McClary v. Pepe

Opinion

USCA1 Opinion

November 17, 1995     [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT


____________________
                                 ____________________


No. 94-2294 
          No. 94-2294 



                                  ROBERT E. McCLARY,
                                  ROBERT E. McCLARY,



                                Petitoner, Appellant,
                                Petitoner, Appellant,



                                          v.
                                          v.



                             PETER A. PEPE,  JR., ET AL.,
                             PETER A. PEPE,  JR., ET AL.,



                               Respondents, Appellees.
                               Respondents, Appellees.


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                                 ____________________



                                     ERRATA SHEET
                                     ERRATA SHEET


The opinion of  this Court  issued on November  9, 1995,  is
               The opinion of  this Court  issued on November  9, 1995,  is

          amended as follows:
          amended as follows:



               On page 2, footnote 27 is changed to footnote 1.
               On page 2, footnote 27 is changed to footnote 1.



November 9, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 94-2294 



                                  ROBERT E. McCLARY,



                                Petitoner, Appellant,



                                          v.



                             PETER A. PEPE,  JR., ET AL.,



                               Respondents, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Selya and Boudin, Circuit Judges.
                                            ______________



                                 ____________________



            Robert E. McClary on brief pro se.
            _________________

            Scott  Harshbarger,   Attorney  General,   and  Pamela  L.   Hunt,
            __________________                              _________________

        Assistant Attorney General, on brief for appellees.


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Per Curiam. Pro se plaintiff Robert McClary appeals from
                 __________  ___ __



            the  summary dismissal  of his  habeas  corpus petition.   He



            claims  that  his  conviction  for  trafficking  cocaine   is



            unconstitutional  because  the prosecutor  violated  Doyle v.
                                                                 _____



            Ohio,  426  U.S.  610 (1976),  by  improperly cross-examining
            ____



            McClary and  commenting on  McClary's post-arrest  silence in



            his closing argument.



                 We have thoroughly reviewed  the record and the parties'



            briefs  on appeal.  We are persuaded that the habeas petition



            was properly  dismissed under  Anderson v. Charles,  447 U.S.
                                           ________    _______



            404, 408-09  (1981), (per  curiam), and Grieco  v. Hall,  641
                                                    ______     ____



            F.2d 1029, 1032-36 (1st Cir. 1981).   We note that even if we



            assumed arguendo  that Doyle error is  present, habeas relief
                                   _____



            is  not  warranted  here.   The  record  discloses  that  the



            evidence against McClary was strong and that the  error could



            not have  had  a  substantial and  injurious  effect  on  the



            verdict.  See  Brecht v.  Abrahamson, 113 S.  Ct. 1711,  1722
                      ___  ______     __________



            (1993).   While  we  need not  decide  whether the  "harmless



            beyond a reasonable doubt" test of Chapman v. California, 386
                                               _______    __________



            U.S.  18, 24 (1967), should  be applied to  this appeal1, the



            evidence indicates that any  alleged Doyle error was harmless
                                                 _____



            under  this test  as well. Accordingly,  the judgment  of the


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            1.  While  McClary made this argument below, he has failed to

            develop it on appeal.  Thus, the point has been  waived.  See
                                                                      ___

            United  States v. Zannino, 895  F.2d 1, 17  (1st Cir.), cert.
            ______________    _______                               _____

            denied, 494 U.S. 1082 (1990).
            ______



district court is affirmed.
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