North v. McDonough , 118 F. App'x 520 ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1296
RICHARD DRAYTON NORTH,
Petitioner, Appellant,
v.
JOSEPH F. MCDONOUGH, SHERIFF, PLYMOUTH COUNTY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge,
David J. Nathanson on Memorandum in Support of a Certificate
of Appealability for appellant.
December 23, 2004
Per Curiam. Richard North seeks a certificate of
appealability (COA) to appeal from the district court's denial of
his petition for habeas relief pursuant to 28 U.S.C. § 2254 from a
state court conviction on twenty-two indictments for larceny by
false pretenses. North seeks a COA to pursue his claims that he
was denied counsel or, in the alternative, received ineffective
assistance of counsel, in violation of his Sixth Amendment rights.
We may grant a COA only if the district court's application of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to
deny habeas relief was "debatable among jurists of reason." Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003).
Under AEDPA, a federal court may grant a state prisoner's
application for a writ of habeas corpus if the underlying state
adjudication "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). With respect to the "unreasonable
application" clause, the focus "is on whether the state court's
application of clearly established federal law is objectively
unreasonable, and . . . an unreasonable application is different
from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002).
I. Constructive Denial of Counsel
In United States v. Cronic, 466 U.S. 648 (1984), the
Supreme Court held that there are some circumstances of deficient
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representation "that are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is
unjustified" and, therefore, prejudice will be presumed. Id. at
658-59. The Court in Bell "reiterated that prejudice may be
presumed only in three narrowly circumscribed situations." Ouber v.
Guarino, 293 F.3d 19, 33 (1st Cir. 2002).
First, a trial is presumptively unfair if the
accused is completely denied the presence of
counsel at a critical stage of the
proceedings. Second, such a presumption is
warranted if "counsel entirely fails to
subject the prosecution's case to meaningful
adversarial testing." Third, prejudice may be
presumed in the presence of circumstances
under which a competent lawyer would likely
not be able to render effective assistance.
Id. (citations omitted).
In his memorandum in support of his habeas petition,
North argued that the circumstances of his case fell within
Cronic's second exception to the prejudice requirement:
[Defense counsel] completely failed to subject
the Commonwealth's case to meaningful
adversarial testing by: (1) her complete
failure to participate in jury selection, (2)
her failure to cross-examine thirty-six of
forty-five witnesses (including three of the
five complainants, and none of North's
employees), and (3) her baseless waiver of an
opening statement.
North's Memorandum in Support of Petition for Writ of Habeas
Corpus, Dkt No. 11, p. 13. The trial transcript indicates that at
each of the identified points in the trial, defense counsel stated
that she was not in a position to challenge jurors, make an opening
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statement or cross-examine certain prosecution witnesses because
she hadn't been provided with adequate discovery to try the case.
In Bell, the Supreme Court explained that in order to
come within Cronic's second exception, "the attorney's failure [to
test the prosecutor's case] must be complete." Bell, 535 U.S. at
697. By contrast, an argument that "counsel failed to oppose the
prosecution . . . at specific points" is subject to Strickland's
performance and prejudice components. Id. at 697-98. The state
court in this case supportably found that defense counsel was
present throughout the trial, effectively cross-examined key
prosecution witnesses and presented to the jury a "defense of good-
faith failure to provide a return on investments." Commonwealth v.
North, 52 Mass.App.Ct. 603, 614 (2001).1 On this record,
reasonable jurists could not find debatable the district court's
conclusion that the state court did not unreasonably apply Cronic
in concluding that North's representation did not fall within the
second Cronic exception.
II. Ineffective Assistance of Counsel
1
The record also supports the state court's finding that
despite counsel's protests that she had not been provided with
discovery, "[by] the time trial commenced, the trial judge and
other judges had made every reasonable accommodation to insure that
counsel and the defendant were prepared," and that "[w]hile trial
was ongoing, the judge adjusted the trial schedule repeatedly to
accommodate the defendant's review of documents." North, 52
Mass.App.Ct. at 613.
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In analyzing North's ineffective assistance claim, the
state court applied Commonwealth v. Saferian 366 Mass. 89 (1974),
which this court has concluded is "for habeas purposes . . ., a
functional equivalent of Strickland." Ouber v. Guarino, 293 F.3d
19, 32 (1st Cir. 2002). "To establish such a violation,
Strickland v. Washington, 466 U.S. 668, 687-96 (1984), requires
that [defendant] show (1) that [defense counsel's] performance fell
below an objective standard of reasonableness and (2) that
prejudice resulted." Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir.
1998). The state court held that North had failed to satisfy
either prong of the Strickland test, and the district court found
that the state court had reasonably applied Strickland in reaching
that conclusion.
Reasonable jurists could not dispute the district court's
determination. "Under the applicable constitutional standard, a
failure of proof on either prong of the Strickland test defeats an
ineffective assistance of counsel claim." United States v. LaBonte,
70 F.3d 1396, 1413-14 (1st Cir. 1995), rev'd on other grounds, 520
U.S. 751 (1997). We focus on the prejudice prong.2 To satisfy
Strickland's second prong, a defendant
2
We therefore need not resolve petitioner's claim that the
state court applied a standard contrary to Supreme Court precedent
in holding that his acquiescence in his attorney's improper tactics
precluded a finding that the first prong of Strickland had been
satisfied.
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must demonstrate that there was a reasonable
probability that but for [his attorney's]
errors, the outcome of the trial would have
been different. For that purpose a reasonable
probability is defined as "a probability
sufficient to undermine confidence in the
outcome." And in that respect our analysis is
not limited to outcome determination - we must
also contemplate "whether the result of the
proceeding was fundamentally unfair or
unreliable."
Tejeda, 142 F.3d at 22.
In his memorandum in support of his habeas petition and
in his COA application, North specifically claims that he was
prejudiced by his counsel's failure to cross-examine certain
witnesses, failure to call other witnesses, and failure to consult
an accountant. Having considered those claims and reviewed the
state court trial transcript, we conclude that reasonable jurists
could not dispute the district court's determination that
petitioner failed to make the requisite showing that the state
court's prejudice determination was objectively unreasonable.3
3
Petitioner's reliance upon Tejeda v. Dubois, 142 F.3d 18 (1st
Cir. 1998),is misplaced. As an initial matter, Tejeda filed his
habeas petition before the effective date of AEDPA and, therefore,
AEDPA's "more stringent limitations on the federal courts' review
of state court determinations via habeas proceedings" did not apply
and we reviewed his ineffective assistance claim de novo. Id. at
22. Moreover, our review of the record in this case indicates
other dissimilarities. We found that Tejeda's counsel "fail[ed] to
present a coherent argument" in support of the defense of police
fabrication. Id. at 25. We also found that Tejeda's counsel and
the trial judge "simply could not tolerate each other" and that
their relationship "ruptured completely." Id. at 22. The state
court made no such finding with respect to defense counsel's
relationship with the trial judge in this case, nor would the trial
transcript have supported such a finding.
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Petitioner's request for a COA is denied and the appeal
is terminated.
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