Huenefeld v. DOC Massachusetts , 2 F. App'x 54 ( 2001 )

[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-2118
KURT L. HUENEFELD,
Petitioner,
v.
MICHAEL MALONEY, ETC.,
Respondent.
ON PETITION FOR A CERTIFICATE OF APPEALABILITY
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Kurt L. Huenefeld pro se on petition.
March 15, 2001
Per Curiam. Kurt Huenefeld, a state prisoner sentenced
to life imprisonment, petitions for a certificate of
appealability (COA) so that he may appeal the district court's
denial of his application for a writ of habeas corpus. See 28
U.S.C. § 2253. This application is the progeny of several
earlier affirmations of the petitioner's 1983 conviction
following a jury trial in a Massachusetts state court on charges
of second-degree murder, burglary, and armed assault. In the
first instance, the Massachusetts Appeals Court upheld the
conviction and the Supreme Judicial Court (SJC) denied further
appellate review. Commonwealth v. Huenefeld, 475 N.E.2d 439
(Mass. App. Ct. 1985), rev. denied, 478 N.E.2d 1274 (Mass.
1985). The petitioner thereafter moved unsuccessfully for a new
trial. That denial likewise was affirmed. Commonwealth v.
Huenefeld, 614 N.E.2d 999 (Mass. App. Ct. 1993), rev. denied,
687 N.E.2d 651 (Mass. 1997).
The petitioner then sought federal habeas relief. See
28 U.S.C. § 2254. The United States District Court for the
District of Massachusetts dismissed this "mixed" application for
failure to exhaust state remedies. See Rose v. Lundy, 455 U.S.
509, 510 (1982). The petitioner returned to the state courts
and filed a second new trial motion. The superior court
rebuffed him and the ruling withstood direct attack. See
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Commonwealth v. Huenefeld, 687 N.E.2d 651 (Mass. App. Ct. 1997),
rev. denied, 691 N.E.2d 581 (Mass. 1998).
On March 3, 1998, the petitioner reapplied for a writ
of habeas corpus. The named respondent, a state correctional
official, moved to dismiss. See Rule 4, Rules Governing Habeas
Corpus, 28 foll. § 2254. A magistrate judge recommended
granting the motion, and the district court adopted the report
in full. See Huenefeld v. Maloney, 62 F. Supp. 2d 211 (D. Mass.
1999) (reproducing text of magistrate's report and
recommendation). Consequently, the court dismissed the habeas
application. It thereafter refused to issue a COA. The
petitioner renews his request in this court. See 28 U.S.C. §
2253(c); Fed. R. App. P. 22(b)(1).
A provision in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) directs federal courts to deny a
state prisoner's application for a writ of habeas corpus "unless
the underlying state 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
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proceeding." 28 U.S.C. § 2254(d). Carrying out this directive
requires a two-step analysis:
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. In the absence of a governing rule,
the "contrary to" clause drops from the
equation and the habeas court takes the
second step. At this stage, the habeas
court determines whether the state court's
use of (or failure to use) existing law in
deciding the petitioner's claim involved an
"unreasonable application" of Supreme Court
precedent.
O'Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998); accord
Williams v. Taylor, 529 U.S. 362, 408 (2000); Williams v.
Matesanz, 230 F.3d 421, 424 (1st Cir. 2000).
This standard informs the showing that is necessary to
obtain a COA.
The AEDPA predicates the very issuance of a
COA — without which "an appeal may not be
taken to the court of appeals," 28 U.S.C. §
2253(c)(1) — on whether an "applicant has
made a substantial showing of the denial of
a constitutional right." Id. at §
2253(c)(2). A habeas petitioner who fails
to demonstrate that his claims satisfy the
substantial showing standard may not appeal
the denial of habeas corpus at all.
Bui v. DiPaolo, 170 F.3d 232, 236 (1st Cir. 1999). Moreover,
"the necessity for a substantial showing extends independently
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to each and every issue raised by a habeas petitioner." Id.
The petitioner fails to make the requisite showing.
We need not tarry. The facts of the underlying case
have been chronicled in several rescripts, e.g., Huenefeld, 62
F. Supp. 2d at 212-18, and we need not rehearse them here. A
careful review of the relevant state court decisions reveals
them to be fully consistent with Supreme Court case law. The
only conceivable question, then, is whether the state courts
unreasonably applied that law. The petitioner offers no
convincing reason why we should answer that question in the
affirmative. We allude briefly to his principal points.
1. The petitioner objects vociferously to an analogy
used by the trial judge while explaining the drawing of
inferences, asserting that the instruction allowed the jury to
infer facts upon a mere possibility.1 Having reviewed the
1The parties agree that the challenged instruction reads:
Suppose you are driving out the Concord Turnpike out
to Arlington or Lexington early in the morning, and
you see a guardrail has been completely broken
through, and under the guardrail you see some tracks.
They look like fresh tracks. It's reasonable to infer
that an automobile went through the guardrail. You
may infer that we went through recently. If there are
tire marks on the street just before it, you may infer
that it was an automobile from their width and not a
truck. You may, you may not. If there was not tire
marks, you may infer that he fell asleep, didn't hit
his brakes before he went over. You may not infer
that too. It's entirely up to you. You may say he
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instruction in light of the charge as a whole, Cupp v. Naughten,
414 U.S. 141, 146-47 (1973), we are satisfied that no reasonable
juror would have interpreted it as a license to indulge in
speculative inferences. The trial judge's final statement —
that "the inferences you make must be based upon the facts that
you determine to be the truth in this trial" — renders this
conclusion unavoidable. On this point, then, the petitioner has
not made a substantial showing of the abridgement of a
constitutional right.2
2. The petitioner claims that the trial court erred
in requiring the parties to submit a joint stipulation as to the
testimony of the chemist who performed serological examinations
on relevant blood samples. According to the petitioner, the
trial court should have insisted that the chemist testify in
tried to avoid something, or he just went over. You
can get into inferences — become very speculative, you
can come to inferences that are very populous [sic],
but the inferences you make must be based upon the
facts that you determine to be the truth in this
trial.
2
The parties also agree that the trial judge made a
subsequent reference to "imaginary doubt." That allusion, while
better left unsaid, does not change the decisional calculus. As
stated in an unpublished appellate rescript, this locution was
"merely an isolated phrase couched within four pages of an
otherwise proper instruction that adequately and repeatedly
emphasized the Commonwealth's burden to prove each and every
element of the offense beyond a reasonable doubt." Huenefeld,
No. 97-P-1059, slip op. at Add. 2.11 (Mass. App. Ct. Nov. 20,
1997) (unpublished).
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person. The state courts rejected this argument, e.g.,
Huenefeld, 610 N.E.2d at 347, and so do we.
Unlike Washington v. Texas, 388 U.S. 14 (1967), this
case does not involve the absolute exclusion of a witness's
testimony, but, rather, the trial court's exercise of its wide
discretion over the mode and manner of presentation of proof.
So viewed, there is no substantial showing of a nascent
constitutional violation.
3. The petitioner calumnizes the trial judge for
allowing into evidence a pair of gray corduroy pants stained
with occult blood — pants that the petitioner was wearing at the
time of his arrest — and thereafter denying the petitioner's
motion to strike the exhibit. See Huenefeld, 610 N.E.2d at 347
(discussing issue and concluding that any error was harmless).
Since it cannot plausibly be said that these rulings, whether
right or wrong as a matter of evidence, so infused the trial
with unfairness as to work a denial of due process, the
petitioner's constitutional rights are not implicated. See
Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir. 1987) (holding
that garden-variety errors of state law do not warrant federal
habeas relief).
4. The petitioner asserts that his conviction was
obtained through the use of false evidence. The prosecution, he
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says, culpably failed to correct false testimony, and the trial
court improperly admitted testimony lacking in veracity.3 See
Huenefeld, 610 N.E.2d at 345 (discussing this evidence).
A criminal defendant has a constitutional right to a
fair trial, but not a perfect one. United States v. Hasting,
461 U.S. 499, 506-07 (1983); Lutwak v. United States, 344 U.S.
604, 619 (1953). The inconsistencies that the petitioner cites,
unaccompanied by any fact-specific proffer indicating that the
prosecution suborned perjury or knowingly purposed to introduce
false testimony, simply do not sink to the level that would be
needed for a substantial showing that a constitutional violation
had occurred. See Napue v. Illinois, 360 U.S. 264, 269 (1959);
United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990);
United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).
5. The petitioner launches a volley of claims aimed
at allegedly offensive arguments made by the prosecutor. It is
well-established that improper prosecutorial comments constitute
constitutional error only if those comments "so infected the
3These assertions revolve around (1) testimony of Dr.
Katsas, a pathologist, who apparently testified, in seeming
contravention of his autopsy report, that the decedent's blood
tested negative for cocaine; and (2) testimony incorrectly
identifying the precise origin of a syringe that tested positive
for cocaine (the syringe had been found in a trash barrel
outside the petitioner's house, not — as a police witness said
— on a nightstand in the petitioner's bedroom).
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trial with unfairness as to make the resulting conviction a
denial of due process." Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974). No useful purpose would be served by
enumerating the statements that the appellant decries. It
suffices to say that, evaluating them within the context of the
case, see United States v. Young, 470 U.S. 1, 11-12 (1985), we
discern no substantial showing of constitutional error.
6. The petitioner asseverates that he was denied
effective assistance of counsel during both trial and appeal.
In Strickland v. Washington, 466 U.S. 688 (1984), the Supreme
Court elucidated a two-part test to guide courts in determining
ineffective assistance claims: the petitioner must demonstrate
both that his lawyer's performance was deficient, and that this
deficient performance prejudiced the defense. Id. at 687.
As to the efforts of trial counsel, the Appeals Court
found no "showing of how the [petitioner] was prejudiced."
Huenefeld, 610 N.E.2d at 345. In his habeas papers, the
petitioner has not filled that void. Since it is the
petitioner's burden to "show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different," Strickland,
466 U.S. at 694, this omission defeats his claim.
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The petitioner's allegation that he was deprived of
effective appellate counsel fares no better. Specifically, the
petitioner charges that his appellate lawyer failed to meet with
him prior to filing his brief, or to provide him access to some
documents, or to raise certain claims on appeal. 4 But the
petitioner has neither established a causal link between these
charges and the affirmance of his conviction nor identified any
omitted argument that might conceivably have turned the tide.
Accordingly, the petitioner has fallen well short of a
substantial showing of the abridgement of a constitutional
right. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983).
7. The petitioner makes an overarching argument that
the district court erred in dismissing his habeas application
without first procuring and pondering a complete transcript of
his trial. The district court acted, however, under Rule 4 of
the Rules Governing Section 2254 Cases — a rule that authorizes
dismissal "if it plainly appears from the face of the petition
and any exhibits attached thereto that the petitioner is not
entitled to relief." Where, as here, a petitioner's claims
4 The petitioner also suggests that his appellate attorney
deprived him of the opportunity to file a so-called Moffett
brief. See Commonwealth v. Moffett, 418 N.E.2d 585, 589 (Mass.
1981). Moffett articulates a rule of state law, and failure to
comply with that rule does not raise a claim cognizable on
federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67
(1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
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render such a disposition appropriate, a federal habeas court
need not examine the complete trial transcript.
A case directly on point is Love v. Butler, 952 F.2d
10 (1st Cir. 1991) (per curiam). There, the district court had
before it the parties' briefs, the relevant state court
decisions, a copy of an unsuccessful application for further
appellate review, and certain grand jury minutes. Id. at 15.
We held that "each of petitioner's arguments was readily
susceptible to resolution without resort to the transcript."
Id. Accordingly, we affirmed the district court's summary
dismissal of the habeas application. Id.
The case at bar is on all fours with Love. Here, the
district court had before it much the same type of documentation
as mentioned in Love. Moreover, the parties were in apparent
agreement as to the critical trial events (e.g., the contents of
the jury instructions, the stipulation proffered in lieu of the
chemist's testimony, the inconsistencies in Dr. Katsas's account
and those pertaining to the origins of the syringe, the
prosecutor's closing comments). The petitioner failed to
advance any argument that, for proper resolution, required the
district court to go beyond these materials and refer to the
unexpurgated trial transcript. Under the circumstances, we
reject this assignment of error.
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We need go no further. 5 To the extent that the
petitioner raises other claims, they are baseless and may be
dismissed without further comment. The short of it is that the
petitioner has not made a "substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). Consequently,
we deny his application for a COA.
The petitioner's application for a COA is denied and
this proceeding is terminated.
5The petitioner also has moved for the appointment of
counsel. We deny the motion. See Dellenbach v. Hanks, 76 F.3d
820, 823 (7th Cir. 1996) (stating that "an indigent civil
litigant in federal court has no constitutional or statutory
right to the appointment of counsel, even if he is challenging
a criminal conviction as by a proceeding . . . for habeas
corpus").
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