Kirwan v. Spencer, 2011 U.S. App. LEXIS 1782

Kirwan was convicted of first-degree murder in Massachusetts; Meagher died from a knife wound with DNA on a knife at the scene.
Perry testified that Kirwan mentioned a 'shank' before leaving the bar, creating an inference Kirwan sought a weapon.
A small knife with Meagher’s blood was found at the scene and Meagher died from a knife wound causing blood loss.
During closing, the prosecutor argued Kirwan went home to get a shank and returned armed, relying on Perry’s statements.
The Massachusetts Supreme Judicial Court rejected Kirwan’s prosecutorial-misconduct and ineffective-assistance challenges on state-law standards.
Kirwan sought federal habeas relief; the First Circuit reviewed under AEDPA standards for claims adjudicated on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct from closing arguments	Kirwan argues the shank claim was not grounded in evidence and misquoted Perry.	State contends the inference was supported by the record and Perry’s testimony.	No due-process violation; arguments fairly inferable from the evidence.
Misquotation of Perry during closing	Kirwan contends the prosecutor misstated Perry’s testimony about the shank.	State maintains any misquotation was slight and not a constitutional error.	No due-process violation; misstatement not prejudicial given the evidence and instructions.
Ineffective assistance for failure to object to general shank remarks	Kirwan claims counsel should have objected to the general shank statements.	State contends objections were unnecessary because the remarks were fairly inferable from evidence.	No ineffective assistance; lack of objection did not prejudice given strong evidence.
Ineffective assistance for failure to seek curative instructions	Kirwan asserts curative instructions should have been sought for shank remarks.	State contends no curative instruction was required for fairly inferable statements.	No ineffective assistance; substantial evidence supported the verdict regardless.

Darden v. Wainwright, 477 U.S. 168 (U.S. 1986) (due-process standard for prosecutorial misconduct in closing arguments)
Donnelly v. DeChristoforo, 416 U.S. 637 (U.S. 1974) (closing argument not necessarily fatal if instructions mitigate impact)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (test for ineffective assistance of counsel: performance and prejudice)
Commonwealth v. Duguay, 430 Mass. 397 (Mass. 1999) (Mass. standard used for prosecutorial-misconduct considerations)
Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) ( Strickland prejudice considerations in counsel performance)
Forsyth v. Spencer, 595 F.3d 81 (1st Cir. 2010) (AEDPA review and deference considerations in First Circuit)
Obershaw v. Lanman, 453 F.3d 56 (1st Cir. 2006) (deeming whether AEDPA deference applies in merits review)
Young v. Murphy, 615 F.3d 59 (1st Cir. 2010) (AEDPA deference and state-court factual determinations)
Clements v. Clarke, 592 F.3d 45 (1st Cir. 2010) (de novo or deferential review under AEDPA depending on disposition)