Phoenix v. Matesanz

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2048



                       KENNETH P. PHOENIX,



                      Petitioner, Appellant,



                                v.



                         JAMES MATESANZ,



                      Respondent, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS


[Hon. Reginald C. Lindsay, U.S. District Judge]


Before

                                

                    Torruella, Chief Judge,

                                

                Campbell, Senior Circuit Judge,

                                

                   and Selya, Circuit Judge.


Robert L. Sheketoff with whom Sheketoff & Homan was on brief

for appellant.

     William J. Meade, Assistant Attorney General, Commenwealth

of Massachusetts, with whom Thomas F. Reilly, Attorney General,

Commenwealth of Massachusetts, was on brief for appellee.


August 19, 1999


CAMPBELL, Senior Circuit Judge.  Kenneth P. Phoenix

appeals from the district court's denial of his petition for habeas

corpus relief from his 1988 murder conviction.  We affirm the

district court's determination that Phoenix's claim of ineffective

assistance of counsel was not procedurally barred.  As to the

merits of the ineffective assistance claim, we remand to the

district court for further proceedings consistent with this

opinion.

                           I.  FACTS

  On June 3, 1988, Phoenix was convicted of first-degree

murder in the Hampshire Superior Court of Massachusetts.  For the

facts of his conviction we look first to the decision of the

Massachusetts Supreme Judicial Court ("SJC") affirming Phoenix's

conviction on direct appeal.  See Commonwealth v. Phoenix, 567

N.E.2d 193 (Mass. 1991).  

  Raymond Green was the power plant facility manager at the

Belchertown State School, supervising sixty-three employees,

including Phoenix.  He worked in an office on the second floor of

the powerhouse on the school grounds.  On August 4, 1986, Green's

secretary found him dead in his office, shot five times by a .22

caliber firearm.  The police retrieved pieces of a green scouring

pad from Green's face and from the floor of his office.  In a metal

drum on the first floor of the powerhouse, they also discovered a

crumpled brown paper bag and a rolled-up piece of green scouring

pad.  The drum was situated next to the entrance to a tunnel system

that connected the powerhouse with other school buildings. 

  The Commonwealth took the position, based largely on

fingerprint and blood evidence found at the scene, that Phoenix had

entered the powerhouse undetected through the tunnel system and

went to Green's office while Green was out getting his lunch.  As

part of its theory, the Commonwealth reasoned that Phoenix had

constructed a homemade silencer by wrapping a gun in a green

scouring pad and placing it in a paper bag.  When Green returned to

his office, Phoenix allegedly shot him five times at point blank

range.  Phoenix escaped through the tunnel system, dumping the bag

and the scouring pad in the metal drum on his way out.  The weapon

was not recovered.  

  As indicated, the Commonwealth based its case largely on

its experts' interpretation of certain physical evidence found at

the scene.  Examination of the paper bag had revealed several

blood stains, one of which contained a fingerprint.  After chemical

treatment, additional fingerprints appeared, only some of which

were identifiable.  At trial, the Commonwealth called Dr. Moses

Schanfield, an expert serologist, who testified that the blood from

the one interpretable stain was consistent with Green's blood and

that it could not have been Phoenix's blood.  The Commonwealth also

called two fingerprint experts, who stated that each of the

identifiable prints found on the bag belonged to Phoenix. 

  Before trial, Phoenix's counsel, William M. Bennett,

retained Dr. Brian Wraxall, a forensic serologist, to assist in the

defense.  According to an affidavit filed subsequent to trial,

Wraxall observed the allotype testing performed by Dr. Schanfield

shortly before trial, and determined that the test results were

scientifically meaningless and that there was no scientific basis

for concluding that the evidence bloodstain was consistent with

Green's blood or not consistent with Phoenix's.  He discussed these

conclusions with attorney Bennett, who did not, however, call Dr.

Wraxall to the stand.

  Bennett had also retained Professor Herbert McDonnell, a

fingerprint analyst.  Based upon his review of photographs of the 

prints recovered from the paper bag, McDonnell stated in a post-

trial affidavit that he advised Bennett of his opinion that there

was insufficient detail to conclude either that the print was

Phoenix's or that it was not.  Bennett never called Professor

McDonnell to the stand.

                    II.  PROCEDURAL HISTORY

  On December 20, 1988, Phoenix filed a motion for a new

trial on the ground that his trial had been tainted by juror

misconduct.  The motion did not mention ineffective assistance of

counsel.  The superior court denied the motion on February 6, 1989.

  Phoenix applied for a stay of further execution of

sentence on October 31, 1989.  Again, the grounds for that

application did not include ineffective assistance of counsel.  On

April 20, 1990, Phoenix filed a supplemental memorandum in support

of his application for a stay, which included an affidavit of Dr.

Wraxall stating, inter alia, his opinion that "no conclusion could

be drawn regarding the types of the donors of the blood on the

paper bag."  The Commonwealth moved to strike this affidavit.  The

superior court denied Phoenix's application for a stay on May 25,

1990.

  Phoenix also filed a direct appeal of his conviction,

which set forth several grounds but did not raise the issue of

ineffective assistance of counsel.  Phoenix, however, sought leave

to supplement the record on appeal to add an affidavit by Dr.

Wraxall concerning the allotype testing.  Phoenix, 567 N.E.2d at

199 n.8. The Supreme Judicial Court denied this request, finding

that Phoenix was aware of Dr. Wraxall and his opinions as to the

testing at the time of trial, but that Bennett chose not to call

him to testify as a matter of strategy.  Id.  On February 28, 1991,

the SJC affirmed Phoenix's conviction pursuant to Mass. Gen. L. ch.

278,  33E. 

  Nearly five years later, on January 22, 1996, Phoenix,

represented by new counsel, filed a second motion for a new trial. 

He alleged that he had been denied effective assistance of counsel

because, inter alia, his trial counsel (1) failed to call Dr.

Wraxall to rebut Dr. Schanfield's trial testimony, and (2) failed

to call Professor MacDonnell to rebut the Commonwealth's

fingerprint evidence.  Phoenix asserted that these failures

violated his rights under the Sixth Amendment to the United States

Constitution and Article 12 of the Massachusetts Declaration of

Rights.

  On March 18, 1996, the Superior Court denied Phoenix's

motion without an evidentiary hearing.  Upon review of the Wraxall

affidavit, the court noted that it was essentially the same

affidavit that Phoenix had filed in support of his motion for a

stay of further execution of his sentence and that the SJC had

refused to add to the record on direct appeal.  Citing Commonwealth

v. Gagliardi, 638 N.E.2d 20 (Mass. 1994), it held that Phoenix had

waived the issue of Bennett's failure to call Dr. Wraxall to

testify by not raising it on appeal or in his first motion for a

new trial.  The court also stated that it did not believe that

Bennett's decision not to call Dr. Wraxall as a witness could "be

considered to constitute ineffective representation."

  As to Bennett's failure to call Professor McDonnell to

testify at trial, the court determined that McDonnell's opinion did

not rule out the possibility that the unknown fingerprint was

Phoenix's, and that the Commonwealth's witnesses testified

convincingly that the print did belong to Phoenix.  Accordingly,

the court found that McDonnell's testimony would not have been

helpful to Phoenix, and that Bennett was not ineffective in

choosing not to put him on the stand.

  On October 21, 1996, represented by new counsel yet

again, Phoenix sought leave from a single "gatekeeper" justice of

the SJC to appeal the denial of the second motion to dismiss.  See

Mass. Gen. L. ch. 278,  33E.  He argued that his appellate counsel

had had no opportunity to raise the issue of Wraxall's testimony

since the affidavit was never made part of the record. 

Accordingly, Phoenix contended, the superior court judge erred in

holding that his ineffectiveness claim was waived.

  The single justice denied Phoenix's application on May 8,

1997, after extensive briefing but without an evidentiary hearing. 

He held that although the issue of whether Phoenix waived his

argument regarding the Wraxall affidavit "may be novel," the

underlying issue of ineffective assistance of counsel lacked

substance and thus did not warrant a new trial.  Id. (requiring a

motion for a new trial to raise a question that is "new and

substantial").  Noting that "the reliability of the Commonwealth's

testimony on this score had been so thoroughly canvassed both at

trial, by cross-examination by defendant's counsel, and then

examined by the full court on plenary review," the single justice

rejected the ineffective assistance claim as to the Wraxall

affidavit on its  merits.  Similarly, he upheld the motion judge's

ruling that, in the context of the "strong testimony" by the

Commonwealth's experts, McDonnell's testimony would not have been

helpful to Phoenix's defense, and thus could not support an

ineffective assistance claim.  The justice cited neither federal

nor state law in the opinion.

  On January 29, 1998, Phoenix filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C.  2254(d).  On July 30,

1998, the district court denied the petition without a hearing.  It

held that Phoenix's claim of ineffective assistance was not in

procedural default, but that "the petitioner has failed to

establish that the performance of his counsel at trial in the

Massachusetts Superior Court fell below an objective standard of

reasonableness in light of all the circumstances."  The district

court granted a certificate of appealability on September 9, 1998.

         III.     ANALYSIS

  Phoenix's habeas petition is governed by the

Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 ("AEDPA"), which provides, in relevant

part: 

    An application for a writ of habeas corpus on behalf of

  a person in custody pursuant to the judgment of a State

  court shall not be granted with respect to any claim that

  was adjudicated on the merits in State court proceedings

  unless the adjudication of the claim-- 



    (1) resulted in a decision that was contrary to, or

  involved an unreasonable application of, clearly

  established Federal law, as determined by the Supreme

  Court of the United States.... 



28 U.S.C.  2254(d).  In reviewing a ruling on a petition for a

writ of habeas corpus, we examine the district court's legal

conclusions de novo.  Simpson v. Matesanz, 175 F.3d 200, 205 (1st

Cir. 1999).

           A.     Procedural default

  Habeas review in a federal court is available as to a

claim "adjudicated on the merits in State court proceedings," but

only in instances affecting or involving clearly established

federal, not state, law.  See id. at 205-06, quoting 28 U.S.C. 

2254(d).  These requirements reflect the long-standing rule that

federal courts do not review state court decisions that rest on

independent and adequate state grounds.  Id., citing Trest v. Cain,

522 U.S. 87, 118 S.Ct. 478, 479-80 (1997).  Such grounds exist

where "the state court declined to hear [the federal claims]

because the prisoner failed to meet a state procedural

requirement."  Id. at 206, quoting Brewer v. Marshall, 119 F.3d

993, 999 (1st Cir. 1997), cert. denied, 118 U.S. 1172 (1998).  In

such a case, "[c]onsiderations of comity and federalism bar the

federal court's review."  Id.

   Because Phoenix was convicted of first-degree murder,

his appeals from the denial of state court collateral attacks on

his conviction after his direct appeal were governed by

Massachusetts General Laws chapter 278,  33E.  That provision

permits further review of a defendant's claim by the SJC only where

a gatekeeper justice of the SJC finds that the claim is "new and

substantial."  Mass. Gen. L. ch. 278,  33E.  The gatekeeper's

determination is final and unreviewable.  Commonwealth v. Ambers,

493 N.E.2d 837, 841 (Mass. 1986).

         The Commonwealth argues that the district court erred in

holding that Phoenix's ineffective assistance claim was not

procedurally barred.  It contends that the gatekeeper justice's

decision pursuant to  33E did not reach the merits of that claim

and was independent of federal law.  The Commonwealth contends,

accordingly, that the decision constituted a procedural bar to

habeas review.

  We disagree in the present special circumstances.  We

recognize that most frequently a single justice's  33E

determination that an issue is not "new and substantial" will

depend on state procedural or, perhaps, substantive law, ruling out

federal habeas review.  See McLaughlin v. Gabriel, 726 F.2d 7, 9

(1st Cir. 1984) (in general,  33E determination does not reach

merits of claim, but is merely a state law "screening" device).  In

Simpson, however, we suggested that this might not always be true,

stating that a denial of review under  33E is an independent and

adequate state ground "where there has been procedural waiver

below."  Simpson, 175 F.3d at 206, 207 (emphasis supplied).  We

went on to say that, hypothetically, habeas review could be

appropriate where a gatekeeper justice's denial under  33E was

based on findings, supported by federal law, that the petitioner's

claim was new but not substantial.  Id. at 207 n.4.  See also

McLaughlin, 726 F.2d at 9 (possibility of special circumstances in

which gatekeeper determines federal constitutional question).

  Whether the state court decision here is or is not

impervious to habeas review depends on whether it rests, expressly

or inferentially, on a state-law procedural waiver (or some other

state law consideration), or whether, instead, it involves the

resolution of the merits of Phoenix's federal constitutional claim. 

See Simpson, 175 F.3d at 206-07; Burks v. DuBois, 55 F.3d 712, 716

(1st Cir. 1995).  In determining the above, the opinion of the SJC

gatekeeper justice, as the "last reasoned opinion" of a state court

addressing those claims, is the focus of our attention.  See Ylst

v. Nunnemaker, 501 U.S. 797, 801 (1991); see also Simpson, 175 F.3d

at 207. 

  In Simpson, the petitioner had filed several motions for

a new trial challenging the trial court's jury instructions, each

of which was denied on procedural waiver grounds.  175 F.3d at 203-

04.  When the petitioner sought leave to appeal to the SJC the

denial of his sixth motion for a new trial, the gatekeeper SJC

justice denied his  33E application, without explanation, on the

ground that he had not presented "new or substantial issues."  Id. 

Citing an unpublished district court opinion, Little v. Murphy,

1998 WL 704415 (D. Mass. May 21, 1998), the federal habeas court

had held that the "failure to get past the gatekeeper does not by

itself block federal habeas review unless the single Justice

clearly bases his denial of leave to appeal on a procedural bar." 

Id. at 204. 

  We reversed the district court and held that because the

lower state court decisions were based on procedural waiver, "the

denial of review under  33E is an independent and adequate state

ground that bars federal habeas review."  Id. at 206.  Without

deciding whether Little was good law, we distinguished that case on

the ground that, inter alia, the state trial court in Little had

reached the merits of the petitioner's claims and had held

evidentiary hearings.  Id. at 207. 

  The question now before us, therefore, is whether the SJC

gatekeeper's determination that Phoenix's ineffective assistance

issue was perhaps new but is not substantial constitutes

independent and adequate state grounds precluding federal habeas

review.  If we look solely at the decisions in the superior court,

this case would fall somewhere between Little and Simpson.  As in

Little, the state trial court reached the merits of Phoenix's

ineffective assistance argument as regards the McDonnell affidavit;

but, as in Simpson, the state trial court cited waiver as a ground

for denying post-conviction relief as regards the Wraxall

affidavit, and the court held no evidentiary hearing. 

  The SJC gatekeeper justice, however, in determining for

purposes of  33E whether Phoenix's ineffective assistance claim

was "substantial," considered the merits of that claim in respect

both to the Wraxall and McDonnell affidavits.  "If the last state

court to be presented with a particular federal claim reaches the

merits, it removes any bar to federal court review that might

otherwise have been available."  Ylst, 501 U.S. at 801.  Here,

unlike the situation in Simpson, it cannot be inferred that the

gatekeeper denied relief on the procedural ground discussed by the

superior court in reference to the Wraxall affidavit.  The

gatekeeper justice specifically indicated that he was not

dismissing Phoenix's ineffective assistance claim on the ground of

lack of novelty or on some other theory compatible with waiver. 

Instead, he expressly determined that the ineffective assistance

claim lacked substance, thus reaching its merits and superseding

the superior court's earlier finding of waiver as to the Wraxall

affidavit.  See id.  Hence, like the district court, we do not

conclude that habeas review is barred because the challenged state

decision rests upon some procedural bar erected by state law.

  Our inquiry does not, of course, end here.  Even holding

that the gatekeeper justice's decision rested not on procedural

default but on the merits of Phoenix's ineffective assistance

claim, we may not entertain habeas review if the merits

determination was grounded in state law.  Cf. Simpson, 175 F.3d at

206 n.4.  The Commonwealth suggests that because the single

justice's decision did not specifically cite to federal law, it

rests on independent and adequate state grounds.  

  There is no force to that contention.  The Supreme Court

recently refined its explanation of the circumstances under which

courts will presume there is no independent and adequate state law

ground for the state court's decision:  

          In habeas, if the decision of the last state

          court to which the petitioner presented his

          federal claims fairly appeared to rest

          primarily on the resolution of those claims,

          or to be interwoven with those claims, and did

          not clearly and expressly rely on an

          independent and adequate state ground, a

          federal court may address the petition.

            

Coleman v. Thompson, 501 U.S. 722, 735 (1992)(emphasis supplied). 

  Phoenix presented his ineffective assistance claim to the

state courts expressly under federal and state law: he cited, as a

basis of the claim, both the Sixth Amendment to the United States

Constitution and Article 12 of the Massachusetts Declaration of

Rights, listing federal as well as state cases in support of his

argument.  If either constitutional ground were correct, he was

entitled to prevail, since the federal constitution trumps the

state's, while the state is allowed to choose to provide a stricter

level of protection than the federal.  See Bustop v. Bd. of Educ.

of Los Angeles, 439 U.S. 1380, 1381 (1978); Oregon v. Hass, 420

U.S. 714, 719 (1975).  State courts, moreover, have the duty and

right to construe and apply both the federal and state

constitutions.  See Boston Stock Exchange v. State Tax Comm'n, 429

U.S. 318, 320 (1977).  Thus, for the single justice to have

determined that Phoenix's ineffective assistance claim lacked

merit, we can only assume that he examined it under the relevant

federal as well as state standard.  We conclude that the single

justice's determination that Phoenix's ineffective assistance claim

was insubstantial necessarily rejected Phoenix's contrary assertion

made under the federal constitution. 

           B.     Ineffective assistance of counsel

  Having determined that there is no procedural bar to

Phoenix's ineffective assistance claim and that the single

justice's dismissal of the claim necessarily involved the

application of federal law, we turn to whether the district court

properly dismissed the habeas petition on the ground that the

federal ineffective assistance claim lacked merit.  See Strickland

v. Washington, 466 U.S. 668 (1984) (whether counsel's performance

fell below an objective standard of reasonableness and  resulted in

prejudice to defendant).  Citing Strickland, the district court

held that Phoenix "failed to establish that the performance of his

counsel at trial in the Massachusetts Superior Court fell below an

objective standard of reasonableness in light of all the

circumstances."  Phoenix argues that this conclusion was incorrect. 

  Under AEDPA, the district court must determine whether 

the adjudication of the petitioner's claim "resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States."  28 U.S.C.  2254(d).  This represents a new

statutory framework for habeas petitions.  Before the passage of

AEDPA, a petitioner was entitled to de novo review of his

constitutional claims.  See Martin v. Bissonette, 118 F.3d 871,

874-75 (1st Cir. 1997); see also Scarpa, 38 F.3d at 9.  The

district court's one-page opinion does not indicate the scope of

its analysis.

  This is not a case in which significant independent

evidence supports the conviction and thereby reduces the chance

that Phoenix's conviction would be affected by the decision whether

to call the rebuttal experts in question.  Here, the Commonwealth's

case rested almost entirely on the blood and fingerprint evidence

challenged by the Wraxall and McDonnell affidavits.  The superior

court dismissed the importance of McDonnell's testimony on the

ground that he did not deny that the fingerprints could be those of

Phoenix.  McDonnell simply opined that the bloodstained prints were

inadequate for accurate expert analysis.  However, where the

question of conviction turns almost entirely on the reliability of

identifying the prints, McDonnell's opinion goes directly to

whether the prosecution's evidence sufficed to establish guilt

beyond a reasonable doubt.  This is not to say that Phoenix's

ineffective assistance argument necessarily satisfies the rigorous

standard set forth in AEDPA, which requires him to show that the

single justice's decision contravened clearly established federal

law as determined by the Supreme Court, or that it met the standard

set forth in Strickland.  We say merely that the circumstances

warrant a more thorough and explicit consideration of his claim in

the district court than has so far occurred.

  As the state trial court and SJC single justice

indicated, consideration of Phoenix's ineffective assistance claim

appears to properly encompass an evaluation, inter alia, not only

of the Wraxall and McDonnell affidavits, but of the testimony of

the Commonwealth's experts and of Bennett's cross-examination of

those experts.  It does not appear whether the district court had

before it the trial transcripts necessary to such a review.  On

remand, the district court should review the essential parts of the

trial record, and can also determine whether or not testimony from

counsel and other witnesses is called for.

  We vacate the order of dismissal and remand for further

proceedings consistent with this opinion.