Vieux v. Pepe

• Court: Court of Appeals for the First Circuit
• Decided: July 19, 1999
• Docket: 98-1864
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1864



                          CHARLES VIEUX,



                      Petitioner, Appellant,



                                v.



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



                     Respondents, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Douglas P. Woodlock, U.S. District Judge]


Before



                      Lynch, Circuit Judge,

             Coffin and Cyr, Senior Circuit Judges.


Peter M. Onek, by Appointment of the Court, for appellant.

     Cathryn A. Neaves, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief for appellees.


July 19, 1999


COFFIN, Senior Circuit Judge.  Charles Vieux was charged

in a Massachusetts state proceeding with rape and indecent assault

and battery stemming from an encounter with Marie Dorcely.  After

the incident Marquise Dorcely, Marie's younger sister, eavesdropped

on a telephone conversation Vieux had with Marie's mother.  Over

Vieux's objection on hearsay grounds, the court admitted Marquise's

testimony regarding a comment Vieux had made.  On appeal Vieux

claimed ineffective assistance of counsel for failure to object on

other grounds.  After the Massachusetts Appeals Court disagreed and

affirmed his conviction, he filed a petition for writ of habeas

corpus in federal court.  The district court also rebuffed his

entreaty, and he has now appealed to us.  We agree that his

argument lacks merit, and address once again the difficult issue of

ascertaining the precise contours of federal court appraisal of

habeas petitions filed by state prisoners.

                      I. FACTUAL BACKGROUND

  Vieux was a close friend of the Dorcely family.  On June

19, 1994, after spending the day at a beach with some friends,

Vieux took them to the Dorcelys' house for something to drink. 

While his friends waited in the car, Vieux went inside and called

out to see if anyone was present.  Alone in the house, Marie

allowed him upstairs, and, after he inspected some recent carpentry

work, they both went to the kitchen to get him some ice water.

  At this point their accounts of the events differ.  She

claims that he pinned her against the refrigerator, fondled her

breasts and inserted his finger into her vagina.  She says that he

then dragged her a couple feet to the living room where he pushed

her forward over the back of a couch, lifted up her dress and had

intercourse with her from behind.  She asserts that throughout the

episode she attempted to get him to stop and he told her not to

make him exert himself too much.  His version of events has her

being the sexual aggressor, kissing him and leading him to the

couch where they had brief consensual intercourse.

  Afterwards, he brought drinks out to his friends in the

car.  When they all eventually left, Marie called Dina Casimir and

told Casimir she had been raped.  Casimir immediately called an

ambulance, and Marie was taken to the hospital.  The hospital staff

discovered semen but noted that Marie appeared to have no bruising

or lacerations.

  That night, Marie's mother, Degrace Dorcely, called Vieux

to discuss the incident.  He admitted that he and Marie had engaged

in intercourse, but claimed it was consensual.  They spoke a couple

of times over the next few days, repeating the basic elements of

that conversation.  On one call Vieux turned on the speaker phone

so other mechanics at the shop where Vieux worked could listen to

the conversation.  Vieux testified that the other mechanics

listened and laughed.

  Also during one of the calls, unbeknownst to either

Degrace or Vieux, Marquise eavesdropped from a telephone extension

because she "wanted to know what was going on."  After the end of

the conversation, Degrace hung up, but Marquise stayed on the line

and heard Vieux telling the other mechanics that Degrace should

allow him to marry Marie, and explaining that he just "got a little

pussy."  Vieux denies ever making such a vulgar comment.  

                      II. PROCEDURAL HISTORY

  Vieux was charged with rape and indecent assault and

battery.  The central issue at trial involved whether Marie had

consented to the intercourse.  Both Marie and Vieux took the stand,

and because they were the only witnesses to the encounter and had

conflicting accounts, the jury was forced to weigh their

credibility.  Believing that the comment Marquise allegedly

overheard would tarnish Vieux's image in the minds of the jury,

Vieux's lawyer unsuccessfully attempted to suppress this evidence

by objecting on hearsay grounds.

  After deliberating for approximately six hours, the jury

reported that it was deadlocked.  The court then issued a

supplemental charge, and the jury deliberated for another several

hours before finding Vieux guilty of rape and not guilty of

indecent assault and battery.

  On appeal, Vieux claimed that he received ineffective

assistance of counsel.  Vieux argued that the federal wiretapping

statute (outlawing "any electronic . . . device" used to intercept

a telephone conversation and the evidence therefrom) prohibits the

introduction of the statement Marquise claims to have overheard

while eavesdropping.  Vieux asserted that his lawyer should have

objected on that basis, and the failure to do so constituted

ineffective assistance of counsel.  The Massachusetts Appeals Court

found that an objection based on the federal wiretapping statute

would have been futile because the evidence fell into the statute's

"ordinary course of business" exception (exempting from the

definition of an "electronic . . . device" a telephone "being used

. . . in the ordinary course of . . . business").  Consequently,

the court concluded that counsel was not ineffective, and affirmed

Vieux's conviction.  He unsuccessfully sought review before the

Massachusetts Supreme Judicial Court and the United States Supreme

Court, but each denied his request.

  Vieux then filed a petition for writ of habeas corpus in

federal district court.  In a lengthy and thoughtful opinion, the 

court agreed with the Massachusetts Appeals Court and dismissed his

petition.

                     III. REVIEW UNDER AEDPA

  Before addressing the merits of Vieux's claim, we must

first delve into an explication of our standard of review.  When

Congress passed the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), it significantly altered our review of habeas

petitions brought by state prisoners.  Federal courts are now

barred from granting a writ of habeas corpus to such individuals

unless the underlying adjudication:

    (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; or

    (2) resulted in a decision that was based on

  an unreasonable determination of the facts in

  light of the evidence presented in the State

  court proceeding.



28 U.S.C.  2254(d).  The Massachusetts Appeals Court did not

determine any facts, so we need analyze its decision only under

subsection (1), i.e., we must decide whether it was "contrary to,

or involved an unreasonable application of, clearly established

Federal law."

  When we addressed this provision at length in O'Brien v.

DuBois, 145 F.3d 16 (1st Cir. 1998), we held that the provision

requires a two step inquiry.  "First, the habeas court asks whether

the Supreme Court has prescribed a rule that governs the

petitioner's claim.  If so, the habeas court gauges whether the

state court decision is 'contrary to' the governing rule."  Id. at

24.  If petitioner does not obtain relief under the "contrary to"

prong, the inquiry shifts to the second step where the habeas court

must decide whether the state decision is an unreasonable

application of Supreme Court precedent.  See id.  In O'Brien, we

found no Court precedent sufficiently on point to justify review

under the "contrary to" prong, so we proceeded to evaluate the

claim under the "unreasonable application" clause.  See id. at 26.

  Massachusetts argues that if a claim can be analyzed

under the first prong, the court is not allowed to reach the second

step in the analysis.  As we shall demonstrate, this is simply

incorrect.

  The initial challenge in applying this statutory language

is in determining precisely how similar the case must be to Supreme

Court precedent to justify "contrary to" analysis.  Quite

obviously, the closer a case is to the factual and legal posture of

a given Supreme Court decision, the easier it is to say that the

Supreme Court has prescribed a governing rule, thereby triggering

the "contrary to" clause.  However, precise identicality of facts

and legal issues is not required, for, if it were, no cases would

be analyzed under the "contrary to" prong.  Therefore, we commented

that some "Supreme Court holdings are 'general' in the sense that

they erect a framework specifically intended for application to

variant factual situations."  Id. at 25.  In a footnote by way of

example we cited a number of familiar cases that would fit this

mold, including Strickland v. Washington, 466 U.S. 668 (1984), for

claims involving ineffective assistance of counsel.  When a

petitioner raised such a "framework" legal claim, we held that

Court precedent "sufficiently shape[d] the contours of . . .

appropriate analysis . . . to merit review of a state court's

decision under section 2254(d)(1)'s 'contrary to' prong."  O'Brien,

145 F.3d at 25.

  The fact that "framework" claims may be analyzed under

the "contrary to" clause does not, however, obviate the need also

to apply the "unreasonable application" clause as well.  Rather,

O'Brien held that relief under the "contrary to" prong requires

both: (1) identification of controlling Court precedent, whether a

"framework" case like Strickland or not; and (2) a ruling that the

identified precedent demands a particular outcome, i.e., one

contrary to that reached by the state court.  Specifically, we

stated that the "key inquiry" was whether the relevant Supreme

Court decision "can fairly be said to require a particular result

in a particular case."  Id. (emphasis added). "If no Supreme Court

precedent is dispositive of a petitioner's claim, then, a fortiori,

there is no specific rule to which the state court's decision can

be 'contrary.'" Id. (emphasis added).

  Thus, the petitioner may succeed under the "contrary to"

clause only if Supreme Court caselaw directly governs the claim and

the state court got it wrong.  The case is not over, however, if

the state court decision cannot be termed "contrary to" Court

precedent.  Instead, just as in cases where there is no specific

rule on point, we must assess whether it is an "unreasonable

application" of the Court's pronouncements.  Admittedly, in certain

cases, especially those involving non-"framework" claims, Court

precedent will be sufficiently specific that petitioner's claim

will either be contrary to or entirely consonant with the Court's

rulings.  If the state decision is consistent with the relevant

Court decision, it plainly would not be an unreasonable application

of Court precedent.  Therefore, the federal court will be able to

dispatch swiftly any argument under the second step of analysis.

  To say this, however, is not to say that the second step

analysis is unnecessary, for unless a habeas court grants relief

under the "contrary to" prong, it will be required to analyze the

petitioner's claim under the "unreasonable application" prong as

well.  To rule otherwise would be to ignore the word "or" in the

statute limiting our power to grant the writ if the state decision

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

federal law.  28 U.S.C.  2254(d)(1) (emphasis added).

                     IV. PETITIONER'S CLAIMS

  We turn to the merits of Vieux's appeal.  Vieux's claim

of ineffective assistance of counsel is analyzed under the familiar

Strickland rubric, which requires Vieux to prove that his counsel's

performance both was deficient and prejudiced his defense.  See

United States v. Ortiz, 146 F.3d 25, 27 (1st Cir. 1998). 

Obviously, counsel's performance was not deficient if he declined

to pursue a futile tactic.  See United States v. Wright, 573 F.2d

681, 684 (1st Cir. 1978) ("Counsel is not required to waste the

court's time with futile or frivolous motions.").  The

Massachusetts Appeals Court ruled that Vieux's counsel was not

deficient because any objection on the basis of the federal

wiretapping statute would have been overruled by the trial court. 

Consequently, the court denied his claim under Strickland.

  We start by noting that the Massachusetts Appeals Court

conducted a proper Strickland analysis.  It identified both

essential elements of an ineffective assistance of counsel claim,

and properly recognized that "failing to pursue a futile tactic

does not amount to constitutional ineffectiveness."  Commonwealth

v. Vieux, 671 N.E.2d 989, 990 (Mass. App. Ct. 1996).  So long as

its underlying reasoning, i.e., that the objection would have been

unsuccessful, was not "contrary to, or [did not] involve[] an

unreasonable application of" Supreme Court precedent, we are

powerless to grant the writ.  We turn, then, to whether an

objection would have been futile.

  In relevant part, the federal wiretapping statute outlaws

the unauthorized use of "any electronic, mechanical, or other

device" to intercept a telephone conversation.  18 U.S.C. 

2511(b).  The statute also prohibits courts from receiving any such

illegally intercepted telephone conversations into evidence at

trial.  See 18 U.S.C.  2515. At issue is whether Marquise's

telephone extension constitutes an "electronic, mechanical or other

device."  The statute defines that term as "any device . . . other

than . . . any telephone . . . being used by the subscriber or user

in the ordinary course of its business[.]"  18 U.S.C.  2510(5). 

Consequently, if Marquise was using the phone in the ordinary

course of her business, she did not illegally intercept Vieux's

alleged comment.  On the other hand, if she was not using the phone

in the ordinary course of her business, then her eavesdropping

constituted the use of "any electronic, mechanical or other

device," and the trial court would have been barred from allowing

the statement she overheard into evidence.  Under this scenario,

any objection on this basis should have been successful.

  The Massachusetts Appeals Court conducted an extensive

survey of the caselaw interpreting the contours of the "ordinary

course of business" exception.  See Commonwealth v. Vieux, 671

N.E.2d at 991-993.  Because the first step of our review centers on

whether the state decision was contrary to only those cases decided

by the Supreme Court, we focus our inquiry there.

  The Supreme Court has not directly addressed the scope of

the "ordinary course of business" exception.  It has considered the

statute on a number of occasions, but most decisions involve the

authority of law enforcement personnel to wiretap criminal

suspects.  See, e.g., United States v. Ojeda Rios, 495 U.S. 257

(1990) (discussing the requirement that law enforcement seal tapes

of authorized interceptions); Dalia v. United States, 441 U.S. 238

(1979) (holding that electronic surveillance statute granted courts

the power to allow government agents to enter private premises

covertly).  In his attempt to argue that the state decision was

contrary to Supreme Court caselaw, Vieux cites two cases: Gelbard

v. United States, 408 U.S. 41 (1972), and United States v.

Giordano, 416 U.S. 505 (1974).  

  At issue in Gelbard was a witness's attempt to invoke the

statute to refuse to testify before a grand jury because any

testimony would be based on illegally intercepted conversations. 

In the course of allowing this claim as a defense to the witness's

contempt proceeding, the Court stated that unless "expressly

authorized in [the statute] . . . all interceptions of wire and

oral communications are flatly prohibited."  Gelbard, 408 U.S. at

46.  Vieux relies heavily on this simple statement in his attempt

to convince us that Marquise's eavesdropping was improper.  He

neglects to acknowledge, however, that the use of a telephone in

the "ordinary course of business" does not fall within the

definition of a prohibited intercepting device, and anything

overheard therefore would not be an interception.  The quotation

provides no assistance in resolving the issue before us and instead

begs the question.  No other language in Gelbard indicates in any

way whether Marquise's eavesdropping should fall within the

"ordinary course of business" exception or not.

  Giordano provides equally little ammunition for Vieux's

challenge.  Giordano involved a motion to suppress evidence because

the authority for a given wiretap did not come from one of the

officials empowered to authorize electronic surveillance under the

statute.  Again Vieux highlights the Court's sweeping language,

namely that "[t]he purpose of the legislation . . . was effectively

to prohibit . . . all interceptions of oral and wire

communications, except those specifically provided for in the Act,"

most notably law enforcement personnel acting under a court order. 

Giordano, 416 U.S. at 514.  And again, the quote fails to address

the underlying question of whether Marquise's eavesdropping was not

an interception because she used an extension telephone in the

ordinary course of her business.  

  Hence the Supreme Court has not ruled directly on the

scope of the ordinary business exception, and its more general

pronouncements provide no guidance as to whether Marquise's

eavesdropping was done in the "ordinary course of business."

Consequently, we cannot say that the Massachusetts Appeals Court's

decision that counsel was not deficient because the objection would

be futile was "contrary to" Supreme Court caselaw.

  We thus proceed to the second step of the inquiry:

whether the state court ruling was an "unreasonable application" of

the Court's precedent.  As we said in O'Brien, the issue "reduces

to a question of whether the state court's derivation of a case-

specific rule from the Court's generally relevant jurisprudence

appears objectively reasonable."  O'Brien, 145 F.3d at 25.  To find

the state decision unreasonable, it must be "so offensive to

existing precedent, so devoid of record support, or so arbitrary,

as to indicate that it is outside the universe of plausible,

credible outcomes."  Id.  

  In divining the reasonableness of the Appeals Court's

decision, we start by noting that the scope of the "ordinary course

of business" exception has been the subject of a significant split

in authority.  Relying on legislative history concerning the

extensive use of electronic surveillance in marital disputes, some

courts have ruled that the intra-family use of an extension phone

does not fall within the ordinary course of business exception, and

hence any conversation heard by some family members when

eavesdropping on other family members is inadmissible in court. 

See, e.g., Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989)

(holding that no exception exists under federal wiretapping statute

for instances of willful, unconsented-to electronic surveillance

between spouses); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th

Cir. 1984) (same); United States v. Jones, 542 F.2d 661, 673 (6th

Cir. 1976) (finding that the plain language of the statute and its

legislative history compel the interpretation that the act includes

interspousal wiretaps).

  Other courts, concerned about intruding on intra-family

matters better left to state law, have ruled that eavesdropping by

family members on an extension telephone falls within the ordinary

course of the family member's business and thus is not outlawed by

the federal electronic surveillance statute.  See, e.g., Scheib v.

Grant, 22 F.3d 149, 153-4 (7th Cir. 1994) (finding that father's

monitoring and recording conversations between his child and his

ex-wife was encompassed within the ordinary course of business

exception); Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.

1991) (ruling that custodial parent's recording of child's

conversations with non-custodial parent was not an illegal

interception under the statute); Anonymous v. Anonymous, 558 F.2d

677, 679 (2d Cir. 1977) (quoting testimony from the legislative

history to the effect that "nobody wants to make it a crime for a

father to listen in on his teenage daughter or some such related

problem"); Simpson v. Simpson, 490 F.2d 803, 810 (5th Cir. 1974)

(deciding that husband intercepting conversations between wife and

another man did not fall within statute's prohibitions).

  It seems to us that both positions are supportable.  The

Massachusetts Appeals Court's conclusion that an objection under

the federal wiretapping statute would have been overruled was

therefore not an "unreasonable application" of federal law.

  Let us be clear.  We are not deciding that, were the

question presented to us, Marquise's use of the telephone extension

was done in the ordinary course of business and thus was exempted

from the federal wiretapping statute's restrictions.  Rather, we

are holding only that the Massachusetts Appeals Court's decision to

that effect was not "contrary to" or "an unreasonable application

of" federal law.  Consequently, its decision that Vieux's lawyer

was not constitutionally ineffective for failing to object on that

basis was equally not contrary to or an unreasonable application of

federal law.

  In essence, Vieux wants us to announce our views as to

the scope of the ordinary business exception, and then apply the

result, if favorable to him, to his trial in state court three

years ago.  We refuse to do so.  As we said in O'Brien, 

    Teague taught that, apart from the Supreme

  Court, federal habeas courts ought not act as

  innovators in the field of criminal procedure,

  thereby upsetting state convictions because

  state courts were not prescient and thus

  failed to comply with federal law that did not

  exist at the time they ruled. 



O'Brien, 145 F.3d at 23.  This case falls precisely within that

restriction.  When confronted with Vieux's ineffective assistance

of counsel claim, the Massachusetts Appeals Court issued a decision

that cannot be deemed unreasonable in light of a healthy debate

among a number of courts.  We are powerless to grant Vieux's

subsequent petition for the writ of habeas corpus.

  Affirmed.