*1 Medical Air Tech styled litigation certain McCAMBRIDGE, M. John Invest v. Marwan Corporation
nology Petitioner, Appellant, in the United States pending ... ment of Massa for the District District Court v. law, Massachusetts Under chusetts.” generally are of contract claims for breach Timothy HALL, Superintendent, Bay State Nat’l Raymer assignable.7 Respondent, Appellee. Bank, 424 N.E.2d Mass. No. 00-1621. SAPC, Dev.
(1981); Inc. v. Lotus also see Cir.1990). (1st Al F.2d 360 Corp., 921 Appeals, United States Court of public may be cases which though there First Circuit. an merit the creation of policy concerns rule when the claim has exception to that Aug. through a fore involuntarily assigned been sale, If the this is not such a case. closure agree consulting
claim for breach a defense to the defen
ment constituted default, if it would have claim of or
dants’ concern, ongoing Air Medical as
saved raised this as
than Air should have Medical summary to the defendants’ defense claim. motion on the default
judgment so, did it raise Air did not do nor
Medical in objection to the
any contemporaneous rights its this matter
clusion of sale.
assets foreclosure
Conclusion court’s decision is
The district affirmed.
No costs are awarded. disposed point, we argued all of Med- decide this as
7. The defendants have assignable, grounds. ical Air's claims are whether Medical Air’s other claims on other not they in contract. We need sound *2 John M. McCambridge on pro brief se. Prevett, Elizabeth L. Federal Defender Office, on brief for amicus curiae Federal Defender Office. Arquin,
James J. Assistant Attorney General, and F. Reilly, Thomas Attorney General, on for appellee. brief BOUDIN, Before Judge, Chief CAMPBELL, Judge, Senior Circuit SELYA, TORRUELLA and Circuit CYR, Judges, Judge, Senior Circuit LYNCH, HOWARD, LIPEZ and Circuit Judges.
OPINION EN BANC LYNCH, Judge. Circuit Petitioner John M. McCambridge ap- peals the district court’s denial of ha- his corpus petition beas challenging the con- stitutionality of state conviction manslaughter. panel A of this court had earlier reversed the district court and (1) petition, granted his holding: prosecution failed to disclose exculpatory improperly evidence and advantage took the absence of this its closing arguments, of McCambridge’s violation (2) right process; to due Appeals Massachusetts Court decision holding otherwise contrary to and an unreasonable application clearly estab- Supreme lished law. McCambridge Hall, 00-1621, No. slip op., WL .2001 (1st 2001). Sept. Cir. That opinion was withdrawn when full court subsequently granted the Commonwealth’s petition for en banc review. We now af- firm the district court’s denial of habeas corpus.
I. John McCambridge was charged murder, degree with first weapons viola- in an trooper lights turned on his and siren motor vehicle offenses. various tions and van, van attempt pull and a over the but the shooting arose out of a charges the lanes. involving through McCam- continued to weave accident motor vehicle victim, Doyle. fifty Richard The van then accelerated to between bridge and *3 shooting sixty-five per to the and miles McCambridge per admitted miles hour in The curbing acted self-defense. and into the cement and said he hour swerved charge and the rejected Expressway. the murder of the right on the shoulder shoulder, a operating motor vehi- it fish- right that he was the van hit the charge After had been revoked or road, his license turning perpendicu- cle after tailed across the him man- it convicted suspended, but Expressway slowing and to a lar to the a fire- possession unlawful slaughter, thirty-five per hour. speed of about miles arm, under the operating a motor vehicle cement center The van then struck the alcohol, operation and reckless influence of head-on, on the front hitting median first currently He is serv- of a motor vehicle. side, front of the then with the whole right twenty years. of fifteen to ing a sentence air, rising up van. The van went into the feet, and landed with the driver’s several pertinent describe the facts We down, way down the facing wrong the side they by of decision as were found grounds The van then skidded backwards road. court, Commonwealth v. McCam the state feet, it rotating degrees as about ten Mass.App.Ct. 690 N.E.2d bridge, that, the van trooper The also said as slid. (1998), by fleshed out other facts con median, a the center he saw went into in record and consistent with tained the area; the head head in the driver’s seat are bound to findings. court We the state the van hit into the windshield as smashed un findings court of fact accept the state ground. trooper the The estimated us, McCambridge convinces clear less passed from when he about two minutes evidence, convincing they are and crash, until and that first saw the van the 2254(e)(1). § noOn error. 28 U.S.C. two or two-and- the van had traveled about done so. point has he miles, crashing. and then weaving a-half Doyle drinking and were McCambridge witness, off-duty state A second The two and former co-workers. friends weaving through van the trooper, saw the drinking together at a bar had been out lanes, fish-tailing then into Expressway incident, night on the Cambridge shoulder, crossing Express- right No- early hours of which occurred median, up into rising into the center way bar, At McCam- vember air, driver’s side. landing and bartender, argued with the scream- bridge weaving A third witness saw van him of the television ing at either because lanes, actually rocking back across then set, atten- or because shoulder, it hit right and forth before Leav- girlfriend. tions to the bartender’s point straight across the at which shot a.m., Doyle the bar around one ing median, flipped road into center together drove off side, landing with the driver’s side onto its Doyle’svan. pavement. on the down a.m., trooper At two a state ob- about witnesses found trooper and other a traffic on the South- served disturbance position in a fetal Expressway, which was caused east seat, a bleeding from area of the driver’s weaving through van the southbound lanes had to re- injury. personnel Rescue unusually slowly, forty head driving in order to free hour, move the van windshield per major road. The miles on this derringer Doyle’s, from the vehicle. As which personnel removing Doyle placed were McCam- himself had rescue on the dash- outerwear, board, derringer pistol fell bridge’s as he was on way his to sell the gun clothing. out of his in Quincy. to customer Doyle had been thrown from the van McCambridge testified that argu- pinned and his head was under driver’s genesis ment the van had its in a con- body rear wheel so that side himself, versation between clothing His had been torn off visible. month or so before the shooting. In that area, leaving around the neck his chest conversation, McCambridge says he told completely exposed. troopers that he had heard had been *4 reported appeared that his the scene skin Doyle, convicted for child abuse. after grayish, breathing or he and blue was initially denying the charge, admitted it pulse, although paramedic had no one he true, it, said he was had done his time for Doyle testified that was still warm to the and said he didn’t want to hear more. paramedic touch when the arrived. There Doyle McCambridge told that “if [McCam- him. attempt Doyle was no to resuscitate him, bridge] it up ever threw to his face upon arrival at pronounced was dead the ... again put he’d a bullet in [McCam- hospital. had in the He been shot once bridge’s] frigging head.” (in cheek and once in the back the right Despite warning, McCambridge shoulder). right area of the He also had a van, says topic he the again raised the indicating head wound that the back of his just prior to the shooting. McCambridge a head struck or been struck with argument began testified that the after object linear that was at least three inches bar, leaving McCambridge the when asked length sharp rough edges. and had no Doyle, driving, give who was to him a ride Doyle’s alcohol level 0.22%. blood was Doyle his ex-wife’s house. said he had van, troopers In the found Smith phone to make a call and left the van. pistol; safety semiautomatic & Wesson returned, Doyle he go When said he had to cocked, loaded, gun was off and the was Quincy because he had a customer for a ready police and to fire. The also found a pistol. Doyle derringer pulled the derrin- billy with it that club blood on was consis- ger out from under the seat threw Doyle’s type tent with blood and two boxes McCambridge on the dashboard. again ammunition, corresponding of each to one ex-wife’s, asked to be taken to but guns. Doyle living of the two had been in Doyle Quincy. drove on toward This an- crash, prior the van and the van was gered McCambridge Doyle and so he told advocacy organization used homeless Doyle he drunk and called name transport individuals to shelters. Doyle that implying had abused a child. prosecution’s theory trial was McCambridge Doyle testified that then McCambridge Doyle pulled had shot out a nine-millimeter Smith & Wes- van, band, driving dumping en route to son from his waist and threatened body, when the McCambridge McCambridge crash occurred. with it. tes- Doyle, shooting pushed Doyle’s admitted tified that he downward on hand, argued but he did right Doyle pushed upwards, so self-defense. while specifically, More begged Doyle put claimed and that he gun time, Doyle, rage, a drunken threat- down. At the same him ening implying Doyle says shoot for grabbed derringer he from the was a child McCambridge says abuser. dashboard. He saw cock the ham- Wesson, larg- and that the about three minutes so he shot the Smith &
mer of blood, dripping of down the derringer. quantities er face with door, for at were undisturbed had no driver’s side memory McCambridge testified minutes. up in the least five he woke else until anything hospital. Doyle’s type was found matching Blood seat and had soaked on the driver’s expert’s testi- to a ballistics
According cushion, into the through upholstery trial, had been shot with mony at type blood had col- pool and a pistol fell out derringer seat. There was accident lected under driver’s clothing at McCambridge’s also blood on the seat expert testified scene. The ballistics jeans that was manually load- consistent to be derringer needed blood; expert the forensics testified ed, cartridges, two would bear with McCam- the stain was consistent manually cocked time to be each needed blood, merely rather than bridge sitting He further testified weapon was fired. More of the wiping up against blood. thirteen take between it would was found on the pull trig- Doyle-type blood front pressure to pounds of sixteen *5 jacket McCambridge’s jeans; on a leg “a vеry as which he characterized ger, McCambridge, po- which the belonging to' He also testified heavy pull.” trigger the van after the lice found in the back of flash when expect a considerable he would crash; in billy on club found the fired, and the “enough instantane- gun the was pas- was also on the Doyle’s van. blood room.” The ously a darkened brighten door, sliding was off senger’s side which the van testified trooper pursuing bottom, open and a hinges the at the “like light or other from no that he saw flash Doyle’s sweater flap.” Fibers from were the interior. van’s sliding of the portion fused to the lower at trial testified A forensic chemist door, sweater had indicating that the that, opinion, Doyle in her prosecution the great the with force. She also struck door in the driver’s seat he was was shot while that, stippling on the marks testified based accident, van; of the at the time but gun- she believed the Doyle’s on clothing, sliding pas- probably near the Doyle was in back was caused shot wound door was senger’s side a distance of three a shot fired from feet supported This the in the driver’s seat. greater. case, which theory of the was prosecution’s McCambridge, the forensics As for ex- had some- shot tissue, on bar, hair and blood depos- pert then found leaving after time wind- upper passenger’s side corner van. in the back of the She body ited his side passenger’s shield and on the dash- spattered was Doyle’s blood testified that McCambridge’s, appeared to be board that outward direction on in a downward and (which the rear-view mirror suggest- in a manner as well as on door the driver’s side place). proper from its from was detached impact, such as ing high-velocity McCambridge’s blood was also found wound, dripping down with blood gunshot jacket wearing and the that the van his sweater This the door. indicated expert crash. The also spat- at the time of the when the position in an blood upright from the windshield glass fragments found testified that the tered on the door. She window side drop- passenger’s edges around the of blood hardening clothes, indicating that McCambridge’s upper on the blood suggested lets probably contact remained undisturbed part of the window passenger’s side window when it content-and the fact that Doyle had ab- (There stomach, was no such evidence sorbed all the alcohol in broke. broken
Doyle had come contact with the medical examiner estimated that windshield.) stopped drinking about ninety minutes prior to being killed. medical expert sрecialist had a The Commonwealth also testified that head wound was testify. sup- accident reconstruction He club, consistent with a blow from a billy ported the witnesses’ memories of the such as was found in the van. crash, opined Doyle’s body must ejected pas- have been from the flapping expert forensics testi- that, at the im- senger’s sliding upon impact, side door first fied the passenger that, pact. upon impact, propelled He also testified would be forward into right- occupants windshield, of the van would have been hand corner of the but that the right. thrown forward and to the He fur- steering prevent wheel and console could likely windshield, ther testified that the driver was hitting the driver from in- pinned back, been behind the sending wheel. stead through driver twenty-nine inch space between the front The medical examiner who testified for seats, bucket and out the passenger’s side stated that Commonwealth the manner sliding door. He further testified that the Doyle’s impact sug- in which wounds bled derringer has an average muzzle energy gested possible that it was that he was still pounds, 95 foot roughly equivalent to a crash, alive at the time of the but that he punch professional boxer, whereas could not upon be sure. He based this the Smith & Wesson has an muz- average fact that there was blood the tissues *6 energy pounds. zle of 355 foot Due to the abrasions, surrounding impact the which relatively weak muzzle energy of the der- Doyle’s could indicate that heart was still ringer, possible he testified that it was for pumping impact, at the blood time of but Doyle to have been shot once and still have body could also be caused the conscious, active, remained and possibly being multiple turned times.1 The medical aggressive even more of the because opinion was that Doyle examiner’s was wound. cheek, shot first the from a distance of six to eight right right inches to the of the the Since habeas issue asserted is based ‘ cheek; probably this shot would have question the of evidence as to whether Doyle killed eight Doyle within minutes. He or not had been convicted of child abuse, gunshot, stated that the second go point. to the we into detail on this At area, upper right trial, prosecution back shoulder severed Doyle’s the called broth- Doyle’s probably aorta and thus would During testimony, McCambridge’s er. the Doyle have killed less than two to three counsel asked for a side-bar and informed minutes, that, definitely eight less than the court if the Commonwealth that, minutes. He also cоncluded on planned challenge Doyle’s based to the truth of Doyle abuse, the amount of blood that in- had conviction for child he like would lungs, Doyle haled into his opportunity had time to the to Doyle’s cross-examine take at least few breaths Doyle between the brother about whether had served two shots. Doyle’s Based on blood alcohol point, time for child abuse.2 At that trial, 1. He testified that it also could McCambridge, proceeding pro have been 2. Prior to se, by attempts Doyle, caused to unsuccessfully requested Doyle’s “rap resuscitate but had none any attempts of the witnesses recalled sheet” means of a hand-written letter to resuscitation. prosecutor. could ask the the defense counsel jail, that not certain whether it was said prosecution wanted, if he brother question challenge the truth to it intended defense, up it was to the and that that it would court said The conviction. record put Doyle’s criminal prosecution, re- available to be Doyle’s brother
keep court, by the When asked into evidence. prosecution decid- if the a witness called as said, jail, “He wasn’t prosecutor con- had not been Doyle argue that ed to then, further the court when Judge,” victed. convicted, prosecu- was asked testimony, Later, during prosecutor “No. No.” The responded tor hearsay and objected on prosecutor was on the record all he had seen said refer- prejudice grounds knew, abuse, Doyle] “so far as spousal [he prosecutor The Doyle’s conviction. ring all he jail,” and that was been had never any proba- outweighed prejudice said matter. say on the could if there was The court asked value. tive he did not counsel said counsel Defense charge. Defense conviction on the and would conviction, criminal record but access was a represented there he did not want produced. it He said ways like not in some it’s true or said “whether but that part it ease point, judge make At that irrelevant.” open up argument it want to “d[id]n’t checked either counsel whether had asked one, had prove [Doyle] didn’t prosecutor [he] record. The probation therefore, lying.” and, [McCambridge] say what just says doesn’t replied, “It —it it prosecution what The court asked it’s no idea what for.” for. I have pros- argue on the issue. testify to intended to McCambridge to judge allowed problem if had no replied that he ecutor conversation his first “beсause, brother called the conviction, went the defendant agreeing know, is no record mind, I as far as there which McCambridge’s state convictions.” When not Mr. theory, to the self-defense relevant further, inquired conviction, judge truth of the which for the position of put in the not be said he should cross- to self-defense. On not relevant would closing argument disclosing what prosecu- McCambridge, *7 examination do might what he conviction, be. He foreshadowed and of the raised issue tor up there McCambridge “gets saying is de- asked, know Mr. Doyle then “You I know [Doyle’s] time when says done answered ceased?,” to which I’ve seen. And asked, he hasn’t from records “He can’t prosecutor then yes. The record, he got the now; [McCambridge has] right can he?” allegations your refute court The [attempt it.]” to introduce can objected question, to that The defense had that the information interjected then objection was sustained. mind of the for the state of come of the defense’s the conclusion Near that was The said prosecutor defendant. case, requested a side-bar defense counsel to going argue. all was he to recall whether he needed clarify to turned, said, closing defense argument, In his That Doyle’s brother. emphasize careful to im- counsel was prosecution intended whether testimony McCambridge’s credibility by argu- pugn his only to show conviction offered convicted Doyle never been ing that had was no evi- there of mind and that either was no evidence jail, when there molested or abused ever took dence way point. on this is sim- “[t]here child. He stated Doyle had not been position that art ply way no evidence one or another.... unlawful search and seizure and should suppressed; There is no evidence that he did it. There been should have been instructed on possi- is no evidence that he didn’t do it. It was bility of necessity ... defense to admitted for the state of mind.” The the firearms charge; turn, and that “the trial court closing in his erred prosecutor, referred not requiring Doyle’s criminal record the earlier to be conversation: part record, made prosecu- and the the defendant have something Does may tor have violated the defendant’s state you up when he gets believe there process federal due rights by not dis- oh, I says, yeah, argument had an closing that record.” On this third argu- with Richard because of child mo- ment, McCambridge argued: absolutely lestation? There is suppression of material evidence put of that. in there to Was tell favorable to the requested accused and you frame of mind what his was? No. himby process violates the due clause of That third at was his shot the victim the Fifth stand, Brady Mary- Amendment. assassinating reputa- from the land, 87 [83 S.Ct. tion with no evidence. That’s what that (1963). bar, L.Ed.2d for, 215] the case at you, I suggest to show because the trial court refused to re- state of mind. quire the produce Commonwealth to read, Literally prosecution admitted record, Doyle’s criminal the defendant that defendant an there was evidence prove cannot that exculpatory evidence argument the aftermath of Thus, was withheld.... this Court accusation, the child abuse but that should pro- order the Commonwealth to purpose real for the was to.im- duce criminal record so an victim, pugn the not to show McCam- appellate decision can be made. In the bridge’s state of mind.3 Defense counsel alternative, the case should be remanded object prosecution’s did not closing Superior production Court for statement. Nor the closing statement document issue. presented as error to the state courts on responded The Commonwealth McCambridge’s direct appeal. McCambridge had not requested that II. Doyle’s record be marked as exhibit McCambridge appealed his conviction to until sentencing stage, proper Court, Appeals present- the Massachusetts challenging means for a failure to disclose main ing arguments: three that the der- exculpatory evidence would have been ringer and product through his clothes were the a motion for new trial under Mas- *8 panel opinion peals passage The now-withdrawn of appeared Court cited the as it typo- transcript, court assumed that there had been a with no modifications. If graphical transcript error and that the transcript omit- there was an error in the which defendant, "absolutely” ted the word against "no” between worked under state law transcript sought "evidence.” But the sentence and he should have to correct the tran- argument 8(e). perfect script. the flow of the R.App. sug- make sense Mass. Pro. The first prosecutor may gestion as stated. The well have that a word was omitted from the meant that there transcript appears was evidence of the convic- to be in the brief that the tion, conversation, prior or of the but no panel Commonwealth submitted before the of alleged evidencе of the holding confrontation the this court. Our here does not turn on night Doyle's of death. This was the tran- whether or not the word “no” should have included, script that the state court had and McCam- been and so we do not need to bridge's Ap- point. brief before the Massachusetts decide the
32 abuse, which convicted of child would Procedure Rule of Criminal
sachusetts record was the defendant’s 30(b), the conviction have corroborated testi- and that “the because to the verdict Doyle pulled gun material a mony not at trial that defendant’s testi- clearly believed jury called a him when the defendant with the a confrontation mony regarding abuser, a child indicating name he was only him victim,” they convicted since prior had on a occasion which accusation manslaughter. Doyle to threaten defen- prompted ap- with the state its brief filing
After
him this
ever accused
dant’s life he
a
filed Mo-
court,
Commonwealth
peals
the defendant
again.
offense
While
include
Record
Expand the
tion to
vic-
pressed for the introduction
record,
did in fact
which
criminal
trial,
record at
he did
tim’s criminal
neglect
child
for
a conviction
contain
not order its
object
judge
when
did
months in
Doyle served six
notation
that the record be
request
production
The Common-
this conviction.
for
jail
He
for
cannot
marked
identification.
that,
trial,
at
explained
motion
wealth’s
complain
judge
that the
be heard
now
print-out
partial
had
prosecutor
sentencing stage.
to do
at the
failed
so
record,
no mention of
which had
event, assuming without
In
decid-
conviction, and included as an
neglect
child
pro-
that the
should have
ing
print-
truncated
copy of this
appendix
record, there was no
duced the victim’s
out.
the defendant
prejudice to
because
brief, McCambridge argued
reply
In his
aware of the victim’s record
has now dis
“the Commonwealth
prepared
offer such evidence
was with
exculpatory evidence
closed
Moreover,
convicting the de-
trial.
and,
Mary
citing Brady v.
at trial”
held
obvi-
manslaughter,
fendant of
land,
373 U.S.
ously credited the defendant’s
(1963), and United States v.
L.Ed.2d
precip-
van was
that the
struggle
667, 105 S.Ct.
Bagley,
remark
by the
itated
defendant’s
(1985),
that he
maintained
L.Ed.2d 481
Doyle. See Common-
this offense to
trial.
to a new
entitled
Tucceri,
401, 412-14,
412 Mass.
wealth v.
Appeals
appeal,
Massachusetts
On
(1992).
33
question put
the defendant was dissuaded from at-
jury
“[t]he
to the
not
tempting
put
criminal
[the
record] whether McCambridge used an unlawful
jury
because the
evidence before
himself,
device when defending
but rather
by repre-
prosecutor misled
defense
whether
used
excessive
force.”
senting
alleged
victim did not
Hall,
McCambridge
146,
v.
94 F.Supp.2d
in any
have a record and
event that the
(D.Mass.2000).
154
wouldn’t be
argued
closing.
issue
The district court also held that McCam-
withholding
information with the
bridge
procedurally
defaulted on his
prejudice
intent to mislead and
the de-
claim that the
failure to dis-
fendant,
exploitation
and the
of that mis-
close
conviction record violated
in closing argument
direction
violated
McCambridge’s rights
Brady
under
v. Ma-
rights
the defendant’s
to a fair trial.
ryland,
83,
1194,
373 U.S.
83 S.Ct.
10
McCambridge
cited
and Common-
(1963),
L.Ed.2d 215
and Giglio v. United
Tucceri,
401,
wealth v.
412 Mass.
589 States,
150,
763,
31
(1992),
N.E.2d
Massachusetts case
(1972).
L.Ed.2d 104
McCambridge, 94
evidence,
produce exculpatory
failure to
F.Supp.2d at 154-55. The district court
support.
respond-
as
The Commonwealth
referred to the
Appeals
Massachusetts
that “any
produce
ed
failure to
the victim’s
above,
holding
cited
noting that
prejudice
criminal record did not
the de-
“[pjrocedural default acts
indepen-
as an
SJC,
opinion,
fendant.” The
without
de-
dent
adequate
and
state ground
uphold
appellate
nied further
review. Common-
the conviction.” Id. at 155. The court
1103,
McCambridge,
wealth v.
427 Mass.
further held that McCambridge had not
(1998).
III. comply efforts to proce- the state’s January McCambridge filed a rule,” 155-56, dural id. at nor had he petition corpus for habeas under 28 U.S.C. prejudice” shown prose- “actual from the (1994 1996) § II Supp. & in the Dis- produce cution’s failure to the criminal trict of argued Massachusetts. He conviction, id. at any miscarriage nor his detention is unconstitutional because justice, id. The court reasoned: erroneously the trial court admitted the The actual of Doyle’s contents criminal clothing gun seized into record are not relevant to analysis violation of both Fourth and Fifth because the details of the actual criminal rights; Amendment trial court record were not McCambridge known to failed to jury instruct the on the necessity Rather, at the time of the homicide.... defense; improp- believed, material, whatever erly exculpatory withheld name- source, had a history criminal ly, Doyle’s conviction record. On abuse, of child motion, knew that accusations Commonwealth’s the district court likely child abuse were provoke dismissed vio- McCambridge’s first argument Doyle, lence from clothing provo- as to the seized and after such gun, because it was cation became essentially a Fourth fearful of his life when Amendment claim that gun. was not drew a reviewable on habeas. To these facts Hall, trial, F.Supp.2d testified at his (D.Mass.1999). The district court accepted subse- must have that his quently gun held charge provocation story error did at least raised some conviction, affect the manslaughter as reasonable doubt in order to convict on
34 justice will result. miscarriage of otherwise rather than first- or sec-
manslaughter
Greene,
263, 282, 119
v.
Strickler
murder.
ond-degree
(1999);
1936,
tipped the balance Penalty Death and Effective Antiterrorism Id. at 38. ter conviction.” 104-132, § No. Act of Pub.L. (1996), a court federal 110 Stat.
IV. petition “with re- may not issue habeas adjudicated on spect claim that certain petitioner must meet A habeas un- proceedings” the merits State court we reach before can preliminary criteria 1) decision: “was con- the state court less claim. He must of his the merits ap- to, an unreasonable trary or involved the state his claims to fairly presented of, clearly established Federal plication have exhausted his state and must courts 2254(b)(1)(A). law, Supreme § as determined 28 U.S.C. court remedies. 2) “was based United States” Further, on the the state decision rests of the facts determination ground of unreasonable independent state adequate and presented the evidence default, light re- then federal habeas procedural proceeding.” U.S.C. court showing State absent view is unavailable 1996). 2254(d) A II state court’s (Supp. § that a showing prejudice, or cause and
35 findings pre- on factual issues “shall be Tucceri states explicitly that it is petitioner to be sumed correct” and the articulating a state law standard that is disproving bears burden of factual “more favorable to defendants than the findings by “clear and convincing evi- Federal Constitutional standard.” 589 2254(e)(1). § 28 dence.” U.S.C. N.E.2d at 1223 n. 11. There is no dispute that this Applicability is so. If § A. of 2254 conviction survives then, this more lenient standard, state ab with, reject, We first deal argu exceptional circumstances, sent it follows mеnt of amicus that we must review the that the conviction would survive the fed novo, issue prejudice de rather than look standard, eral and we see no reason the whether the state court’s determination state courts would required be say ex is unreasonable. The Federal Defender’s plicitly that both standards are met. If Office5 asserts the Massachusetts there is a federal or state case that ex court analyzed McCambridge’s state Bra plicitly says that the state adheres to a dy solely claim under a Massachusetts standard that is more favorable to defen standard and state therefore his federal (and dants than the federal standard it is “adjudicated claim was never on the mer correct in its law), characterization of the § its” within meaning of 2254. If that presume will we adjudica federal law so, were we would review McCambridge’s tion to be subsumed within the state novo, law Brady claim de rather than asking adjudication. DiBenedetto, 272 F.3d whether the state court’s holding is “con Cf. to, (stating 6 trary de applies or ... an novo review applica unreasonable of, “the clearly law,” tion when state court has not Federal decided the established (even required by § standard federal constitutional 2254. See Di claim refer Hall, 1, (1st Benedetto v. 272 F.3d 6-7 ence state court dealing decisions — Cir.2001), denied, U.S.—, issues)”). cert. 122 federal constitutional There (2002); fore, 152 S.Ct. L.Ed.2d 634 reject Forti we argument amicus’s that de Cir.2001), (1st Murphy, ni v. 257 47 F.3d novo here, review under applies Fortini — denied, —, rt. 122 U.S. apply § and we 2254’s ce standard to the 1609, 152 (2002). S.Ct. L.Ed.2d 623 appeals state court’s determination that prejudiced was not by the It is true that the portion of the relevant prosecution’s failure to disclose the con Appeals Massachusetts Court decision viction record. decision, cites to a state court Tuc
ceri,
412 Mass.
tablished
application”
an
sion to be
“unreasonable
has stated:
other courts had
despite the fact
that
clause, a
“contrary to”
federal
Under
conclusion);
also
see
reached the same
the writ if the
may grant
court
habeas
Ward,
1222, 1229-30
219 F.3d
Valdez v.
oppo-
at a conclusion
arrives
court
state
denied,
979,
(10th Cir.2000),
532
cert.
U.S.
a
by this
on
Court
that reached
site to
(2001)
1618,
MeCambridge was ... the result probability They point able a new trial. to warrant comments,6 proceeding have been different.” saying he would closing convicted, af- Bagley, 473 U.S. at Doyle was implied that produced proceeding had not the The result ter represented acquitted of first de- MeCambridge was record and conviction They manslaugh- no conviction. murder and convicted of gree such court there ter, on is a question a close case is whether there this was so argue that ultimately hinged probability manslaugh- reasonable ar- credibility, they which have been different. ter verdict would prosecu- deeply wounded gue was we first turn question, To assess this, they support As comment. tor’s *14 jury in- trial court’s extensive the state level, alcohol sub- say that blood structions, part quote which we relevant tech- bleeding, the medical and cutaneous explained the Com- judge The trial below. Doyle was still testimony that nician’s prove that MeCam- monwealth’s burden to Doyle shortly shot that was indicate warm bridge did not act self-defense: crash; and tis- the blood the that before prove ... must The Commonwealth passenger side door on the samples sue requirements more of the thrеe one or indicate MeCam- windshield and this absent of was self-defense seat at passenger’s bridge was case. crash; was there of time are requirements ... three [T]hose van; safety off with the gun cocked must rea- first that the have defendant ammunition in boxes of and at- being that he was sonably believed guns belonged to that both car indicate be immediately about to tacked or was They argue also Doyle. he was attacked and that immediate “by con- reasoning that court’s appellate in- seriously being killed or danger of manslaughter, of victing the defendant jured. the defendant’s obviously credited jury Second, have done must defendant in the van struggle testimony that reasonable under everything that was re- by the defendant’s precipitated physical avoid com- the circumstances to Doyle,” conviction] [the mark third, and, resorting to force bat before arbitrary unsupport- and is N.E.2d have no the defendant must used record, jury con- by the because ed reasonably neces- more force than driving of offenses MeCambridge victed protect sary in the circumstances not credit did clearly therefore and himself. fight began. testimony as to how the thorough instructions gave also She that, given responds The Commonwealth upon manslaughter how to differentiate jury, presented the evidence role provocation from self-defense the Massachusetts not unreasonable of excessive force: that, even if Appeals to conclude unlawful, inten- Manslaughter is to corrobo- able MeCambridge had been killing resulting from sudden tional rec- the conviction rate his fear, anger, transport passions had not made his ord and the argument, this as an inde- closing or raised pass purposes, we on the present do 6. For court, appeals in the state pendent issue MeCam- arguments Commonwealth's waived issue. so has prosecution's bridge objected to the never or heat of fright, danger being nervous excitement killed or suffering grievous bodily no time to deliber- blood when there is harm at the hands of passion Doyle, ate and when such or heat Mr. then the defendant has produced by adequate or rea- initial right blood to use whatever means were without malice provocation reasonably necessary sonable to avert upon But, combat it sudden would harm. threatened the defendant force, likely produce ordinary is, in an been used excessive that more force person an abnormal state of mind and than was proper reasonable or under the actually produce did such a state of circumstances or the case defen- dant, himself, mind in the defendant. became the attacker and
the use of such force resulted in the assailant, death of his then would ... The first element the Common- manslaughter. constitute prove beyond must a reasonable wealth doubt is that the defendant inflicted an deliberation, After a few hours of injury upon Mr. from which Mr. asked for clarification on unlawful killing, died; second, that the defendant malice aforethought, proof, burden of injured Mr. as result of sudden reasonable doubt. The jury then asked *15 in heat passion using combat or or for clarification on the definition of man- self-defense; and, in excessive force slaughter. judge The re-read the man- third, that the homicide was committed slaughter instructions previ- that she had unlawfully legal justi- without excuse or ously given. fication. instructions, Based on these the state provocation The sufficient to reduce appeals court reasonably concluded that an unlawful killing murder to man- jury have must found that McCam- slaughter provocation is that which bridge provoked was way, some result- likely produce in ordinary
would ing passion, a sudden heat of leading to person passion, such a state of anger, physical conflict.7 That is what McCam- fear, fright, or nervous excitement as bridge himself jury accepted said and the eclipse person’s capacity would a for re- presented his version. The evidence flection or restraint actually pro- did regarding possible at trial provocation duce such a state of mind the defen- for the altercation McCambridge’s was tes- dant. timony Doyle that him threatened with the
nine millimeter Smith & Wesson after Another factor or which McCambridge circumstance had called him a child abus- er, mitigates or reduces murder to man- and that conflict ensued. Thus the slaughter person is when using jury accepted kills McCambridge’s story about excessive force in Spe- Doyle’s anger self-defense.... at being called a child abus- cifically, person an Nothing by initiated as- er. could be added to this against sault the defendant that having so the fact of the child neglect convic- reasonably defendant feared that he was tion established or admitted into evidence. analysis, 7. Under our Doyle it matters not whether did kill but he did it in jury thought manslaughter this was due to Doyle gun self-defense when reached for the passion a heat of toor sudden combat. The during thеir altercation and (nor defense did not differentiate do the facts response brings was not excessive. This differentiation) lend themselves to such —the question play. excessive force into argument defense's essential that ar- independent McCambridge makes conclud- reasonably also court The state the other verdict. We based on gument necessarily found jury ed McCambridge’s argument be- reject defense, self used in his McCambridge, motor him of the convicted cause (or against force least excessive rejected they necessarily charges, vehicle attacker). into the turned and how argument about the his conviction, nor the fact Neither conviction record developed, and so the prosecu- excerpt from the contested Ap- made a difference. would is material argument, closing tor’s conclude, reasonably Court could peals excessive McCambridge used whether expert testimony, by the supported force. once McCam- jury concluded that Doyle to- pushed Doyle, shot bridge overwhelmingly supports evidence attempted van and ward the back McCambridge shot conclusion. jury’s seat or the passenger’s from the drive once twice, in the face and once suffice Either act would driver’s seat. was shot The fact the back. charges. See Common- vehicle the motor excessive itself evidence the back is Ginnetti, 181, 508 Mass. wealth shot, shooting the second Before force. (1987) that, (holding under N.E.2d trigger of cock the McCambridge had to oper- criminalizing statute Massachusetts was not firing. This gun again before the influence vehicle under ating a motor pull trigger weapon, and an automatic vehicle, a motor operation of and reckless The forensic very heavy. operates a motor vehicle person “a ... in at least to draw Doyle had time by making use of the engine its starting shot, the second before couple of breaths gen- engine”). its See power provided from an back McCambridge pulled Annotation, *16 Pearson, What Con- erally J. inches of about six distance shooting initial in Being or Driving, Operating, stitutes three for feet a distance of Purposes of of Motor Vehicle Control also There was evidence shot. second or Ordi- Statute Driving While Intoxicated billy with a been struck head had (2002) 6(a) (citing nance, § A.L.R.3d blood-type club, with his billy club to include interpreting “operating” cases McCambridge’s found. Even on it was passenger’s of manipulation cоntrols account, simulta- was seat). the drunken judge’s trial instructions The state the van down to drive an neously attempting jury that individual it clear to the made and so in the driver’s seat highways, not seated busiest need be one of Boston’s within “operating” a vehicle order to be fully engage free to could not been of the law.8 And there was meaning himself the altercation. was in evidence some had at least success said he had after it sat in that seat seat and driver’s away, hand down and Doyle’s gun pushing blood. was soaked conclusion again supporting McCambridge’s import force than was of more The overall McCambridge used prose- is that the prejudice as to argument needed. person that a The law is in motion. vehicle were as follows: 8. The instructions when he ma- operating a motor vehicle not person operates a motor vehicle A part of or electrical nipulates a mechanical easily doing the well-known while of all ignition gear or like the shaft vehicle they do as recognized things drivers sequence set the will alone or in which also in highway but along travel a street vehicle in motion. directly to set motor doing any which tend acts ' McCambridge’s went cific instances of victim’s violent closing cution’s conduct to that, turn, impugned credibility, support theory only self-defense if such reasons, For a number of we verdict. instances are recent and known to defen- think that the state court’s conclusion that homicide). dant the time of the Since impugn the verdict is not an this did inadmissible, the conviction was we are left application clearly unreasonable estab- prosecution’s with the closing. statement at law. lished To the prosecutor attempt- extent ed to imply lying was mattered for de- What about the existence of a conviction in his fense was not the truth of the fact of closing objection argument, could have itself, conviction but rather the fact that made, been but was not.9 argued the two had based on McCam- bridge’s accusing Doyle having abused a Second, admissible, proof even of the child, supposed- and the threat subsequent existence of the conviction was not materi- ly by Doyle. McCambridge made al- question al to the of excessive force use testify to this. McCambridge lowed as in self defense. As counsel for McCam- argues that the inevitable result was that bridge just said in closing, his there he was discredited before the way was no evidence one or the other as to attorney posits own even before his —he the conviction point and this was not the attorney emphasized manslaugh- that his out, anyway. pointed As the district court defense, than closing, ter rather self an accusation of child abuse or molestation appearance because McCam- may be likely provoke even more violent bridge story. had lied about the conviction Thus, if it rage is baseless. as defense First, analysis take the in stages. We suggested, counsel it was the accusation of law, under Massachusetts the conviction abuse, not, child whether true or which normally record would not have been ad- enraged Doyle.10 missible, even as corroborative evidence. Third, the effect of the lack of evidence Todd, See Commonwealth v. 408 Mass. (1990) conviction and the state- (holding 563 N.E.2d given ment was minimal the wealth of that exclusion of victim’s conviction record supporting the conviction. The part not error in what because *17 closing argu- contested statement the important for the defense was the defen- belief, comprises only paragraph ment one short dant’s not the fact of the convic- tions); Fontes, sixteen-page transcript. in a judge Commonwealth v. 396 (1986) 760, jury nothing Mass. 488 N.E.2d instructed the the (holding may spe- closing argument defendant introduce was to be considered as Indeed, conviction, remedy point 9. The at that would have been 10. the had it been avail- jury disregard able, defense, an instruction to the the might the have undercut or at prosecutor's McCambridge’s accusation. reasonably thought least could be to do so. requested remedy counsel could have neglect. had been convicted of child record, even without the conviction since the shameful, abuse,” neglect Child but "child already question court had indicated that the by McCambridge, the term used is a worse McCambridge’s was state of mind. Of accusation. A false worse accusation course, produced the if the against Doyle could well lead the conclu- requested by conviction record as McCam- picking fight sion that was bridge, probably would not have ventured shooting premeditated. and so the lying point, to accuse on this that, contrary transcript to how the trial reads, is what he did. evidence, to disbelieve McCam- well cause was other there And evidence. evidence, that under- that he re- convenient statement physical bridge’s particularly credibility as to his McCambridge’s up point cuts he fired everything called act no more than he did assertion self-defense, and recalled shot in the first evi- himself—the blood defend properly argu- that. None of the nothing after at Doyle was shot indicating that dence McCambridge “put[s] advanced ments flipped; the van minutes before five least light as case in such a different the whole reported gun witness fact that no the in the verdict.” undermine confidence witness flashes, least one although 435, 115 514 U.S. at S.Ct. Kyles, crash; the minutes before for two watched lead us to arguments do these Much less more been shot Doyle had fact that the judgment court’s that the state conclude also hit over likely was once and most than process no due violation there was club, billy the bloodied the head with unreasonable.11 explain; not McCambridge could which weapon was found the the fact that here with other Comparing the facts clothes, apparently tucked McCambridge’s cases, to conclude it is not unreasonable trooper’s shooting; after the there materiality/prejudice standard van’s driver smashed testimony that Agurs, States is not met. United and remained windshield into the L.Ed.2d 342 96 S.Ct. U.S. van; evidence indicat- front area of (1976), self- also claimed the defendant into the thrown hard Doyle was ing that defense, objected prosecution’s and then out the bot- side door passenger criminal rec- the victim’s failure to disclose door, trapped was neither tom of 100-01, 2392. The ord. Id. at into the nor thrown driver’s seat “did not held that the non-disclosure windshield; on the seat the blood of a fair trial as deprive [the defendant] likely most jeans, McCambridge’s Process Clause of by the Due guaranteed cushion; and the driver’s seat bloodied The Court noted Fifth Amendment.” already gray-blue Doyle was fact judge’s emphasis trial approvingly the first him. troopers saw when the claim “incongruity” self-defense evidence, notably pat- the blood physical multi- of [the victim’s] “the evidence terns, inconsistent with simply un- defendant’s] ple [the wounds shootings theory condition”; fact that the crimi- scathed most, At thirty seconds. occurred within would not have contradicted nal record was another statement prosecutor’s, prosecutor; and offered credibility of damaged already at the stab cumu- record would be that the conviction defendant, likely viewed was most who the victim was lative of evidence that all, some, truth. but telling as *18 at time of the with a knife the armed everything a wit- not Jurors need believe 113-14, 2392. 96 S.Ct. crime. Id. they believe witnesses nor need says, ness Moreover, in the trial court Agurs, recounting in events. are not selective the conviction court had assumed appellate any such be- refutes Daily experience life admissible, id. at 100-02 evidence, too, be might record would physical lief. The fabricating earlier, accusing McCambridge closing argument not 11. As discussed conviction, written, fabricating the only of self- but may as it is transcript be read transcript story. If the is read absolutely defense is evi- prosecutor "There said way, the conviction argu- we still conclude earlier of that [conviction dence ment],” was immaterial. record indicating prosecutor was that tire 3, 2392, misconduct; government rather, while in this case it & n. 96 S.Ct. it was sloppiness. was not. The prosecutor here had an incomplete report on which he relied. The Dumas, In this court United States prosecutor did knowingly misrepresent not a case in which the defendant considered jury. support Udechukwu does not entrapped claimed that he had been into a McCambridge. cellmate, prison drug charge by his prosecution failed to disclose evidence review, On habeas faces indicating put that the cellmate had been double showing both that there is hurdle — watch, and evidence that would suicide probability reasonable corroborate the defendant’s as would have reached a different conclusion to how two had shared a long the cell. if it had the conviction record or if the (1st Cir.2000). Although F.3d 13-15 prosecutor had not made the statement hinged on the the defense defendant’s the closing, and that appeals credibility, we found neither the cor- court determination point on this was un- impeachment roborative nor the here, reasonable. Given the evidence Brady purposes. was material for Id. at cannot clear either hurdle. 16-17. Conclusion
This court’s decision United States v. (1st Udechukwu, Cir.1993), F.3d petition for writ of corpus habeas McCambridge, does not assist much less denied. it does show the state court’s decision application
anwas
unreasonable
of federal
LIPEZ,
CYR,
Judge,
Circuit
with whom
Udechukwu,
In
constitutional
law.
joins,
Senior
Judge,
Circuit
dissenting.
objection,
government, over
withheld evi
trafficker,
drug
dence about a known
evi
Appeals
Massachusetts
Court re-
jected
dence
was favorable to the defendant.
MeCambridge’s Brady claim on two
closing,
prosecution questioned
grounds.
See
v. Maryland, 373
prose
existence of the trafficker when the
U.S.
I. Nondisclosure beyond a reasonable reject, not could held as follows in Supreme Court The doubt, testimony that McCambridge’s he suppression by “the Maryland: Brady v. in immi- that he was reasonably perceived to favorable an prosecution of evidence bodily or serious danger of death nent where the process due accused ... violates credibility on this McCambridge’s harm. guilt to or to either is material perception of claim and his self-defense faith good of the irrespective punishment, van and his Doyle’s alleged actions prosecution.” bad faith of potentially deter- thus threat were earlier L.Ed.2d 215 83, 87, minative of the verdict. (1963). evidence at issue favorable The had, fact, of and been convicted victim, of the record is the criminal here Yet, during neglect.2 for imprisoned child McCambridge testified trial Doyle.1 trial, represented, both prosecutor when violent Doyle had become judge, trial counsel and the defense derogatory McCambridge called Doyle’s on no such conviction there was Doyle’s conviction name that referred record. official de McCambridge also for child abuse. prior Requests, and Rul- Representations, a few months an incident A.
scribed Exculpatory Evi- ings Regarding he when asked their automobile accident of convicted whether he had been dence to kill Doyle threatened child abuse and Doyle’s record of arose question The ever to mention McCambridge if were the trial. There were during times several Therefore, Doyle’s crimi topic again. first the bench. The three discussions at McCambridge’s nal conviction related day place on the third of the took sidebar provided because theory of self-defense testifying Doyle’s brother was trial when Doyle might have why explanation an counsel Defense for the Commonwealth. Additionally, the van. become violent in prosecutor court and the informed the regarding McCambridge’s testimony regarding the McCambridge’s significant threat afforded Doyle’s earlier would refer to his the van altercation to assess evidentiary basis for been Doyle had con- understanding that mind at the time McCambridge’s Defense counsel of child victed abuse. determining whether shooting to question no reason stated that he saw had been reasonable fear decedent’s con- brother bodily injury. death or serious prosecutor intended to unless the viction position that take the killing, unlawful charging responded that he lying. the burden Commonwealth assumed he would yet whether act in had not decided McCambridge did not proving that Reed, veracity regard- challenge self-defense. See Commonwealth (1998). prose- Due to the Doyle’s conviction. ing 691 N.E.2d 427 Mass. respect, in this cutor’s ambivalence have found McCam- jury might not by a two to be followed dispute riod of incarceration does not 1. The Commonwealth period probation. re- Doyle's year conviction favor- the evidence of McCambridge. able to for child abuse. at trial to a conviction ferred argue does The Commonwealth indicates that he was official record bearing abuse/neglect has distinction neglect was sentenced convicted of child obligation. its disclosure to be served and the years, six two months pe- suspended, with the six month remainder *20 resolve, key to this The during was unable event the second defense sidebar Doyle’s prosecutor’s brother was the point, question representation whether to Therefore, Doyle’s the conviction. the court he had looked at record but had ordered that the witness be held over found to be unclear. by the defense. possible questioning later question The of the conviction arose sidebar, prosecutor During this initial shortly again after the second sidebar. put on notice that the record of Despite ruling the court’s jury exculpate to Doyle’s conviction tended would that McCambridge’s be told testimo- McCambridge by corroborating McCam- ny regarding Doyle’s conviction was not
bridge’s anticipated testimony. being matter, offered for the truth of the prosecutor attempted to raise
The second sidebar the issue of doubts about the fact of the conviction Doyle’s during during conviction occurred defense his cross-examination of the counsel’s direct examination of McCam- defendant. objected,
bridge. prosecutor on hear- you PROSECUTOR: You said that say grounds, McCambridge’s reference argument had an with Mr. some- to the conviction when he described the prior September time you this in by Doyle made a month allegedly threat said that he problem was involved in a The court killing. before the overruled molestation; child is that correct? prosecutor’s objection on the ground DEFENDANT: I was told that.... being was not offered for the truth of the to establish thought following exchange took Doyle. dence tion oh this THE DEFENSE: respect outweighed COURT: prejudicial to his fear charge? prosecutor its Do I have a certified Do conviction, probative place: we of being effect of the evi- replied have a state of mind value. The but rather killed that he convic- sir? Doyle is Honor. allegations right PROSECUTOR: You know Mr. PROSECUTOR: He can’t refute DEFENSE: DEFENDANT: He deceased; Objection now; [**] isn’t that [*] can he? certainly that, is. correct, your your THE COURT: Sustained. copy of the conviction? I do not. But I true, that it assert he was con- questioning This line of foreshadowed the I charge.... victed for this don’t think reference to convic- that, my say your brother can Honor in closing argument. explains tion It also fact, he was not convicted. I’ve read expressed by concern defense counsel newspaper articles about it. sidebar, day at the third held on the fourth just of trial before the defense rested. anyone COURT: Has checked probation record? sidebar, Dining this third and final just It says PROSECUTOR: again court asked the whether —it say doesn’t what I for. have no idea he had checked record and the what for. it’s requested prosecution defense Okay. produce
COURT: I’ll tell them that it’s the record. Defense counsel also being offered for the truth of the possibility recalling referred conviction, matter.3 Doyle’s brother to establish given. 3. This instruction was never *21 going ... I am PROSECUTOR: that he would indicating again once
while case, Judge. the facts of the argue prosecutor intended do so unless not argue. Pm going That’s all lying about McCambridge was argue that THE There’s inferences COURT: it: from those jurors may want to draw maligning de- [the He is DEFENSE: you— facts. Are know, character, if you as fendant’s] But can’t draw you PROSECUTOR: in the case that there is some where something an inference really jail. in wasn’t victim] he [the mean, I guy. of a there’s no conviction jail, wasn’t in He PROSECUTOR: up there [McCambridge] gets guy Judge. I time when says [Doyle’s] done rec- you Did check his THE COURT: the records know he hasn’t from ord? records, And, got if he’s I’ve seen. jail, He wasn’t PROSECUTOR: he can— Judge. offered THE But this was COURT: he convicted? THE COURT: Was mind, truth not for the really for state did, it, as to whether or not he No. No. PROSECUTOR: fact, like that. any anything time or do you have his record? DEFENSE: Do Therefore, appropri- if I don’t know it’s part it of the— make Let’s or he didn’t. argue whether he did ate to going Pm not No. PROSECUTOR: the state allowing I am it for case, your part. it a That’s make mind defendant. know, So, I he’s never as as sir.... far Then that’s all I’m PROSECUTOR: day of his life. jail been argue, Judge. going to sidebar, defense counsel ex- At the third keep proof of the willingness to pressed a Honor, I don’t Your DEFENSE: case out of the of the conviction existence his criminal record.... have access to judge’s ruling. compliance with the record, this is got if a criminal So he’s However, voiced concern he also issue, I it seems to me. important of evi- would use the absence prosecutor can all see produced it so we would like conviction to cast confirming the dence have a criminal or not he did whether credibility. upon McCambridge’s doubt what, anything, he was record addition, directly asked defense counsel I about it. of. I’m concerned convicted record. prosecutor for part it of the case. want to make don’t discussions, the these sidebar During hand, open I want to don’t On the other statements made two kinds of prosecutor prove I didn’t up argument that First, Doyle’s criminal record. therefore, and, my guy had one statements qualified made lying. saying, record Doyle had no criminal However, at other I far as know.” “as moments, definitively prosecutor more I ... as [A] PROSECUTOR: far Doyle had been convicted denied that know, Mr. no record that there is with a sim- questions court’s answering the convictions. “No, “I know he hasn’t saying, no” or ple that I’ve from the records you [been convicted] intend THE do COURT: What seen.” argue? acting criminal record was the Crim- evidence known to the others on the *22 System case”).
inal
Record Information
government’s
Offender
behalf
This
(CORI)
person’s
A
of Massachusetts.
duty exists
prosecutor
because the
is the
report
appear-
his or her court
CORI
lists
representative of
government
pro
convictions, if any.4 The Com-
ances and
ceeding against a defendant in a criminal
represented
has
that at trial
monwealth
States,
Giglio
case. See
v. United
405
prosecutor
only
page
the first
150, 154,
763,
U.S.
92 S.Ct.
ure
disclose the
evidence
equivocal language
because such
should
object
Requirement
specif-
have indicated to the
that a
defense
exculpatory
nondisclosure of
objection
ic
to the nondisclosure was nec-
essary.
argument
unpersuasive
This
Finally,
argues
the Commonwealth
unpersuasive
the same reasons it was
object
McCambridge was
required
the context of McCambridge’s failure to
*24
representation
prosecutor’s
the
inaccurate
pursue a more thorough investigation of
record, despite
Doyle’s
Strickler’s Doyle’s criminal record:
the Common-
holding
may
that “defense counsel
reason-
escape
Brady obligations
wealth cannot
its
ably rely”
prosecutor’s representation
on a
by qualifying
exculpa-
its nondisclosure of
complied fully
Brady,
that she has
with
tory evidence and then shifting its disclo-
Strickler,
23,
file” that “his entire B. The State Court Decision cution file was made available to the de- McCambridge argued to the Massachu- 22, Id. at n. fense.” 283 Appeals prosecution setts Court that the While clear from the record did not fulfill un- obligations its disclosure whether the Commonwealth maintained Brady. example, For der he stated case, open policy prosecu- file brief: opening tor’s statements to defense counsel and to suppression The of material evidence the court had no criminal rec- requested favorable to the accused and essentially repre- ord constitute the same by process him violates the due clause of sentation at issue in Strickler: Brady Mary- the Fifth Amendment. v. prosecution had fulfilled its constitutional land, 10 [83 U.S. S.Ct. duty Brady. under Under such circum- (1963). bar, In L.Ed.2d the case at 215] stances, required defense counsel is not trial because the court refused to re- Indeed, object. Supreme reject- quire produce the Commonwealth requirement ed such Strickler: record, Doyle’s criminal the defendant presumption, prove exculpatory “The well established cannot evidence experience, prosecu- еvery- tradition and was withheld. The did defendant fully discharged preserve tors have their official thing he could this issue. duties, Compare is inconsistent with the novel this case with Commonwealth O’Brien, suggestion that conscientious defense 419 Mass. 477 [645 (1995). Thus, procedural counsel have a obligation to this Court 1170] N.E.2d pro- assert constitutional error on the basis should order the Commonwealth to suspicion mere prosecutori- that some duce criminal record so that an misstep may al appellate have occurred.” decision can be made. In the (1992). N.E.2d
alternative,
[589
1216]
Mass.
the case should be remanded
demonstrated,
faith
of Where bad
has been
production
Superior Court
might
and the withheld-
at issue.
the document
trial,
affected the outcome
de-
criminal record as
Doyle had a
If
In
to a new trial.
defendant is entitled
trial,
at
then
scribed
defendant
faith, a new trial is
the absence of bad
information
withholding of that
evidence would
necessary
the withheld
was inten-
misleading
the defense
jury’s
have been a real factor
prejudicial. See Common-
tional
bar,
the case
deliberation.
Tucceri, 412
401 [589
Mass.
wealth v.
the cir-
truthfulness about
defendant’s
(1992).. A new trial would
1216]
N.E.2d
of his confrontation with
cumstances
required.
be
issue
the case.
central
brief
passage
thisAs
blocking
the Commonwealth’s
reveals,
a claim under Bra-
he articulated
claim,
argument about
that the so-called
citations,
argued
dy,
appropriate
only the
record was
Doyle’s child abuse
nondisclosure of
assassinate
attempt
defendant’s
record indeed exist-
Doyle’s record —if the
have been a
Doyle’s reputation, would
him.
prejudiced
ed—
deliberation,
jury’s
real factor
finally
disclosed
prosecution
tipped the scales in
probably would have
criminal record after
filed
favor of the defendant.
*25
appeals
Following
court.
his brief to the
proper
Again,
identified
disclosure,
belated
the Commonwealth’s
Brady claim and
legal authority for his
Brady argument
McCambridge refined his
prejudiced by the
explained why he was
reply
brief:
to fulfill his disclosure
prosecutor’s failure
Bagley,
v.
473 U.S.
In
States
United
obligations.
481]
L.Ed.2d
S.Ct.
87
[105
McCambridge’s Brady claim was thus
(1985),
recognized
Supreme Court
Ap-
fully presented to the Massachusetts
specific
to a
response
incomplete
that an
peals
opinion affirming
In its
Court.
deprives
only
not
request for disclosure
sentence,
and
McCambridge’s conviction
evidence,
specific
but
the defense of the
the issue of
appeals
cоurt addressed
to the defense
such
suggests
also
briefly: “While
record
exist. The defense’s
does
not
for the introduction of
pressed
defendant
misleading represen-
a
reliance on such
trial,
record at
the victim’s
did
criminal
important changes
tation can result
object
judge did not order its
when the
bar,
the case
strategy.
trial
In
the record
production
request
be
specifically
misinformed
defendant
He cannot
marked for identification.
now
record. The de-
criminal
complain
judge
failed
be heard to
strategy
gave up his
fendant
then
sentencing stage.”
do so at
information about
attempting to elicit
McCambridge,
has said
2254(d)(1):
§
“contrary
prong
to”
The Commonwealth further maintains
2254(d)(1)
sug-
§
therefore
The text of
that our
of McCambridge’s
review
habeas
must
gests that the state court’s decision
petition
precluded
because there is an
substantially different from the rele-
be
adequate
independent
state ground for
A
precedent of this Court....
vant
appeals
the state
court decision. Federal
certainly
decision will
be con-
state-court
question
courts “will not review a
of feder-
trary
clearly
prece-
to our
established
al law
if
decided
state court
applies
court
a rule that
dent
the state
decision of that court rests on a state law
governing
contradicts the
law set forth
ground
independent
that is
of the federal
A
in our cases....
state-court decision question
adequate
support
judg-
contrary to this
will also be
Court’s
Thompson,
ment.” Coleman v.
501 U.S.
precedent if the state
clearly established
722, 729,
Accordingly, opinion of the Massachu except caselaw unearthed no Appeals denying setts has McCam- case— claim, Brady part, bridge’s appeals because he decision of the court object contrary objection failed to at trial is an requiring clear to the inaccu- case-— 52 claim, prevail To McCam- by representation
rate
prejudiced
sought by
bridge
the de
must show that he was
evidence
exculpatory
See, e.g.,
to disclose the
prosecutor’s
Com
failure
been disclosed.
fense has
Hill,
704, 739
432 Mass.
of
criminal record. More
v.
monwealth
(2000);
v. Tuc
Commonwealth
“a rea
sрecifically, he must demonstrate
N.E.2d 670
1216,
401,
that,
1224
ceri,
589 N.E.2d
had the evidence
probability
sonable
Mass.
(1992).
defense,
procedural rule to
a state
been disclosed to the
the result
For
independent
adequate
proceeding
an
would have been different.”
constitute
667, 682,
re
barring federal habeas
Bagley,
States v.
ground
state
United
(1985).
consistently
view,
be
en
“A
rule must
[*] [*] [*] Massachusetts has a “routinely enforced, PROSECUTION: consistently applied contemporaneous ob- jection something regarding improper closing
Does the defendant have rule” *28 Dubois, 712, you gets up argument. for to believe when he there Burks v. 55 F.3d (1st Cir.1995). oh, I says, yeah, argument timely objec- had an 716 Absent a tion, with Richard because mo- of child Massachusetts courts will not review reproduced prosecutor’s argu 8. I have the the word "evidence” in this Al sentence. appears transcript though majority suggests as it in ment the of the trial the the tran written, script as set forth in the record. Given the thrust of be should read as the Com prosecutor’s argument, panel the I assume that ei monwealth conceded in its brief to the reporter prosecutor prosecutor ther the court or the un the either said or intended to intentionally no evidence.” say "absolutely omitted the word "no” before 54 Trest, 522 courts. See issues in the state summation improper claims
appellate
Coleman,
89,
478;
501
at
118 S.Ct.
U.S.
are demon
prejudice
cause
unless
732,
(noting
2546
at
U.S.
a miscar
strated,
ensure that
except to
adequate
ground
independent and
state
Com
not occur. See
justice does
riage of
interest
that the States’
19,
“ensures
Stote,
739 doctrine
433 Mass.
v.
monwealth
re-
is
(2000).
correcting
in
their own mistakes
261,
the Massa
When
268
N.E.2d
case,
In this
the Common-
spected”).
de
apply
procedural
the
courts
chusetts
in
procedural default
argue
not
wealth did
rule,
improper
of an
federal review
fault
de-
any
proceedings. “[Procedural
state
similarly
be
claim is
foreclosed
summation
normally a defense that the State
fault is
procedural
to observe state
cause failure
if it is not
preserve
to raise
obligated
and inde
adequate
an
can constitute
rules
defense
right
to assert
the
to lose the
deci
the state court
for
pendent ground
89,
Trest,
118
thereafter.”
Superintendent
v.
Palmariello
sion.
(internal
omit-
(1st
marks
491,
quotation
S.Ct. 478
F.2d
493
Cir.
Norfolk, 873
M.C.I.
LaBriola,
ted);
v.
see also Commonwealth
1989).
13,
n. 1
569,
14
722 N.E.2d
430 Mass.
argue
the
did not
The Commonwealth
(2000).
here.
enforce
rule
We should
court
federal district
Court Decision
B. State
objecting to
by not
procedurally defaulted
In-
argument.9
closing
prosecutor’s
opinion
the Mas-
Next I examine
three extensions
deed,
receiving
after
even
determine
Appeals Court
sachusetts
district
file a brief
federal
of time to
its conclusion
whether
failed to file
court, the Commonwealth
nondisclosure of
by the
prejudiced
was not
“[Tjhis
religiously
circuit
timely brief.10
contrary to or
exculpatory evidence is
presented
not
rule that issues
follows the
clearly es-
application of
an unreasonable
raised on
cannot be
court
district
28 U.S.C.
federal
law. See
tablished
Moran,
F.2d
v.
appeal.” Ouimette
issue,
2254(d)(1).
prejudice
§
On
Cir.1991).
(1st
following:
court said the
appeals
event,
deciding
without
assuming
In any
habeas
Moreover,
litigants
federal
pro-
should have
court con-
from state
arising
proceedings
record, there was no
victim’s
all
duced the
to raise
required
generally
are
victions
ground
independent
adequate
panel,
the Common-
brief to the
9.
In its
time,
wealth,
passing
respect
argument
did
failure
the first
note
for
summation',
objection to its
was no
object
that there
Commonwealth's
defendant
pro-
possibility of a
not mention
but
did
argument.
States v. Fer-
closing
See United
review. The
bar to federal habeas
cedural
(issues
Cir.1998)
nandez,
(1st
145 F.3d
disposed
para-
of in one
issue was
summation
manner,
perfunctory
unaccom-
mentioned
peti-
is also no merit
graph.
"There
waived);
by argument, are
panied
deemed
prejudiced
that he was
contention
tioner's
28(b).
Common-
R.App. P.
Nor can the
Fed.
during closing ar-
reference
prosecutor's
time before
raise the issue
the first
wealth
criminal
gument
that the victim's
to the fact
Ins.
court. See Kale Combined
the en banc
counsel,
Defense
was not in evidence.
record
(stat-
(1st Cir.1991)
Co.,
924 F.2d
already expressly
closing,
con-
during
for the
ing
party cannot raise an issue
evi-
by stating:
no
point
'There's
ceded
banc).
rehearing
en
first time
Mr.
ever molest-
this case that
dence
event,
any child.'
abused
ed or
receiving permission to file
Despite
not
object to
petitioner
did
deadline,
expiration of the
brief
final
after
jury that
judge instructed the
closing and the
*29
it was
We
did so.
assume
the Commonwealth
evidence.”
arguments were not
counsel's
by the district court.
not
to raise
considered
patently
is
insufficient
This statement
by
jury,
the defendant because he
credited
prejudice to
doctor’s uncon-
opinion
aware of the victim’s record
tradicted
tended to
was
diminish
evidence at
prepared
possibility
to offer such
death
was
occurred
Moreover,
occurred,
much
by convicting
trial.
de
before the crash
let alone
just
manslaughter,
obvi
after the two men left the
fendant
bar at 1
witness,
ously
testimony
prosecution
credited the defendant’s
a.m. Another
an EMT
accident,
struggle
precip
responded
in the van was
who
testified
remark about
itated
defendant’s
skin was still warm when his
Doyle.
body
pinned
van,
this offense to
See Common
was found
beneath the
Tucceri,
401, 412-
tending
wealth v.
412 Mass.
thus
Doyle
establish that
died
(1992).
accident,
long
a. of death derringer did not trace the to establish performed The doctor who autopsy attempt who owned it. Nor did he Doyle identify pistol testified that had last con- the owner of the 9 mm. approximately sumed alcohol allegedly one one- which had threatened half hours before his death. It is McCambridge. undis- Another Massachusetts puted and McCambridge police left officer testified that a box of ammu- the bar when it at 1 fitting guns closed a.m. and that nition one of the two Thus, However, the accident occurred at about 2 a.m. van. found box of *30 un- the air. The was Shop,” lifted into evidence ammunition, “Big Al’s Gun labeled sliding the accident the disputed into evidence and that after introduced never was information had no other of the van was passenger officer door on the side police The were hinges. it. off its bottom witnesses about thrown agreement that had been of the bodies c. Location Be- through doorway. car from the theory that Doyle’s to bolster its had cause fabric of sweater an effort up to an van, killed had McCambridge investigator one actually fused to accident, prosecution ejection hour before that must testified McCambridge that establish attempted to that major impact of a been the result the van Foren- crashed. driving when was necessary accom- the heat generated that blood on testified sic witnesses fusion. This evidence indicated plish the McCambridge’s pants was consis- seat driving have been at the that could blood, an in- supporting tent with crash, and establish time of the did not in the driv- sat ference driving, had not Doyle, whether been However, there point. at some er’s seat of the van placed was the back was not there was also evidence prior to the or was accident pants suggest on enough blood upon impact. thrown there long. there for he sat officers, per- emergency Police medical conflicting evidence other There agreed civilians that McCam- sonnel and of McCam- probable location driver’s wedged found bridge was Doyle’s body at the time body and bridge’s sample and hair tests area. Yet blood seat witness prosecution A accident. contradiction, established, without (1) win- passenger-side that: testified passenger hit McCambridge’s head (2) broken; pas- glass dow was during crash. of the windshield side found on McCam- senger-side window testimony also Uncontradicted established jacket under his but collar and bridge’s. head gash had in his (3) if Doyle; some- and was found none blood when he was covered with and was seat sitting passenger had been one found. he would have been impact, time of at the or into the windshield right thrown investigation police d. The prosecu- window. the passenger-door handling explanation as to how no tion offered case, McCam- theory of the why, under its unan- questions other left There were passenger have been might bridge investigators. The accident by the swered impact. time of the at the seat police for the state reconstructionist on the of the tire marks photographs no that was defense tried show explain the road could not absence two had been where the bodies not clear apparently evi- routine important such and roll-over. prior to the crash located during cross- He also admitted dence.11 tes- reconstructionist The defense accident had made mistakes that he examination the van could have the driver of tified scene; he unsure drawing the accident seats thrown between bucket been to indicate and line was intended the van was what one door when of the side out carefully procedure record such it was standard testified that 11. The defense expert analyze without the accident marks. difficult it was picture of the road marks and *31 represent the abuse. purporting line to He also stated that he remem- a second nothing traced the track of bered after the track of one 'tire fact first shot he fired chemist, at until days a different tire. Like the forensic three to four later physical However, when he regarding hospital. became confused the the defense, expert, by the direction the bod- medical called principles governing the ex- plained person when the van hit the that a might ies would have moved become more aggressive receiving type barrier. after the of by wound received hit when the first investigator Another state failed to doc- bullet. Dismissing McCambridge’s amne- things where were located before ument “convenient,” sia as the called removed from the van the they were experts challenge no medical the infer- any inventory unaware of police. She was memory ence that such loss could be “heaps made the might have been attributed to shock both and to the serious van, which of stuff’ that had been head wound McCambridge sustained newspapers bags, clothing, included trash the accident. Other than McCambridge’s and debris. She also stated that the nine testimony, own is record devoid of gun, millimeter which was loaded bearing on whether McCam- allegedly cocked and used threaten bridge was reasonable fear of serious great was found under a McCambridge, bodily injury or death when Doyle. he shot Although prosecution deal of debris. weaving van was alleged because 2. The verdict McCambridge reaching this same jury began deliberating approxi- at gun trooper in order to shoot the who was p.m. mately 1:30 and returned its verdict over, trying рull him there was no testi- following day.12 the afternoon of the At mony as to whether the debris would have deliberations, day the end of the first of its top gun been on before the crash or (1) jury requested clarification on un- gun whether the itself would have moved (2) (3) lawful killing, aforethought, malice Moreover, during crash. the investi- (4) proof, burden of reasonable doubt. gator say could not whether bloodstains The following day, jury asked the trial type blood found in the back of the judge clarify the elements of the man- they van were recent or even whether afternoon, slaughter charge. That police they been made as removed jury finding returned a verdict McCam- items from the van. of the items Some bridge manslaughter, of the crime of guilty during had fallen onto the road firearm, possession operating unlawful of a crash had been thrown back into the van influence, operating under to en- away, risking before it was towed thus danger. making yet contamination and it harder reconstruct the accident. In returning manslaughter, a verdict of jury rejected prosecutor’s theory
e. Self-Defense pre- acted with either claim, support aforethought. In of his self-defense meditation or malice Its re- jection charge jury became of the murder left the testified options him aggressive charge after called two on the killing: manslaughter aequit- conviction for unlawful or referring name to his child day, its It is unclear from the record at what time second what time it rendered jury evening for the on the dismissed day. the afternoon the second verdict on day, first at what time it reconvened on the view, reasoning unduly my prosecutor’s insinuation tal. The It assumes speculative. McCambridge fabricated his *32 McCambridge manslaughter, of convicted conviction to besmirch about have his account of how must believed thing was the last Doyle’s reputation Doyle began. Howev- the altercation with im- either counsel. This jury heard from er, explains: amicus as the McCambridge’s undermining of proper petition- jury The could have disbelieved of question the determinative credibility on entirely, rejecting his er almost thus self-defense, perhaps credibility of his testimony, and still found self-defense tipped the bal- may well have general, manslaughter rather than guilty him manslaughter conviction. ance in favor of outside murder. There was evidence Thus, there is a reasonable I conclude that testimony struggle that a petitioner’s that outcome of McCam- probability occurring inside the van while driv- was have beеn different bridge’s trial would shortly before the ing highway on the Doyle’s conviction had existence of rocking saw the van accident. Drivers and the had been disclosed and fo- highway, back and forth on the that argument suggested closing Doyle indicated that was rensic evidence Doyle’s con- fabricating was McCambridge shortly the crash. There shot before viction. supporting independent evidence preju- majority disagrees with The petitioner’s testimony Doyle that had convict analysis. dice To gun at him. There was pointed cocked reasons, “the majority manslaughter, petitioner that also evidence both pro- that [he] have found jury must Doyle drinking. had been The court way, resulting in a sudden in some voked jury that it could find instructed the majority passion.” The observes heat of petitioner if it that manslaughter found presented at trial “[t]he Doyle “upon killed sudden combat.” provocation for the any possible regarding The court instructed that what “dis- also McCambridge’s manslaughter altercation was tinguished murder him with the nine aforethought.” threatened of malice was the absence after concluded jury simply & Wesson McCam- could millimeter Smith prove failed to its government him a child abuser and bridge had called given of intent Thus, ma- case on the critical issue for the that a conflict ensued.” supporting paucity of the evidence jury necessarily found jority, “the petitioner theory of how and when defense, its at used McCambridge, his self Doyle. killed (or ... against least excessive force attacker).” majority turned into the words, jury In other could have found accepted McCam- jury that “the supported concludes that the circumstantial evidence being story Doyle’s anger bridge’s killed the conclusion that Nothing could be upon called a child abuser. combat or the heat sudden by having passion the fact of whatever reason —but added to this —for ad- malice it was not sufficient establish neglect child conviction established simply There is no basis aforethought.13 mitted into evidence.” out, passions when there is jury was or heat of blood majority points 13. As the pas- such instructed as follows: no time to deliberate and when unlawful, produced by ade- sion or heat of blood is intentional Manslaughter is an transport resulting killing from a sudden jury McCambridge’s must have a rather selective view of concluding what McCambridge’s credibility. account of believed the incident. sparked My own view is that- opinion majority convincing Nor is the credibility impugned eyes “[njeither the fact of
when it declares
self-defense,
the critical
issue of
conviction,
ex-
nor the contested
probabil-
and there is at least a reasonable
cerpt
prosecutor’s closing argu-
from the
standard,
ity,
Brady prejudice
that this
ment,
is material to whether
damage
prosecu-
was attributable to the
argument as-
used excessive force.” This
*33
closing argument.
tor’s unfair
That view
jury
that the
found that McCam-
sumes
support
jury’s
draws
from the
conviction of
in
ex-
bridge acted
self-defense but with
McCambridge on two of the three motor
Yet, again,
jury
the
could
cessive force.
vehicle offenses. These convictions indi-
claim,
have disbelieved his self-defense
but
unmistakably
they
cate
that
concluded that
manslaughter
convicted him of
because the
driving
was
the van at some
supported
a find-
circumstantial
point,
required reject-
a determination that
(but failed to es-
ing of “sudden combat”
ing
parts
substantial
of his account of the
jury
If
aforethought).
tablish malice
the
Doyle,
altercation with
the shooting, and
McCambridge’s story about
had believed
majority suggests
the accident. The
that
altercation, it
origins
the
of the
could
Appeals
reasonably
could
con-
“[t]he
in
found that he acted
self-defense without
...
clude
once
shot
force,
thereby
excessive
was entitled
Doyle,
pushed
toward the back of
simply wrong
say
It is
acquittal.
attempted
the van
to drive from the
jury
the
must have found
passenger’s seat or the driver’s seat.” It
McCambridge used excessive force in self
possible
jury
is indeed
that the
reasoned
defense,
jury
when
if the
we do
know
describes,
majority
a more
as
but
in
accepted his claim that he acted
self-
straightforward explanation is that
place.
in the first
defense
jury simply
disbelieved
in
majority
is also inconsistent
its
the van
driving
of
assessment
the effect
McCam-
when he was shot.
bridge’s credibility
prosecutor’s
ref-
My
conclusion that
closing argument
erences in
to McCam-
prejudiced by
prosecutor’s
misconduct
unsupported
claim about
bridge’s
in
with our decision United
consistent
conviction for child abuse. On the one
(1st
Udechukwu,
transport
evidence from
attempted
duress,
to obtain
like
tion. Udechukwu’s defense
the defendant’s
to corroborate
prosecution
self-defense, de-
McCambridge’s claim of
cir-
Mouma and the
testimony regarding
credibility.
In
entirely on her
pended
agreed
she had
under which
cumstances
Udechukwu,
the evidence not disclosed
Although
gov-
drugs.
smuggle
prosecution only partly substantiated
that Mouma did
information
ernment had
fact that Mouma
her defense because the
Aruba,
drug
and had
exist,
been
existed,
Aruba,
had been in-
lived
exculpatory information
trafficker,
illegal
narcotics did not establish
volved
to the defense. The
disclosed
was never
that Mouma ever threatened Udechukwu
in-
used
absence
prosecutor then
Neverthe-
smuggle drugs.
or asked her to
challenge
Mouma to
Ude-
formation
less, we reversed Udechukwu’s conviction
argument.
credibility
closing
chukwu’s
here,
Udechukwu,
and remanded for a new trial because we
the defendant as-
as
prose-
appeal14
serted on direct
prejudiced by the
concluded that she was
magnified by
violation was
cution’s
improper attack on the crucial
*34
prosecutor’s
We stated:
improper
the
summation.
credibility:
gov-
of her
“Whether the
issue
challenge
the direct
The inferences and
ernment’s failure to disclose
credibili-
a
Mi-
of
source named
to the existence
ty-strengthening information could be said
however,
chael,
prosecution
when the
error,
reversible
we need not decide.
be
he existed
had unearthed
doubt, however,
pros-
that the
We have no
narcotics,
dealer in
prominent
a
and was
persistent
closing argu-
theme in
ecutor’s
we find a kind of
Here
is indefensible.
of this
suggesting
ment
the nonexistence
prosecutorial error:
fail-
double-acting
...
fatally
information
did
taint the trial.”
information,
salient
communicate
ure to
Thus,
Id. at 1105.15
I conclude that
the
which,
[Brady
Giglio
should
]
under
during closing
insinuation
ar-
defense,
the
and a delib-
be disclosed
had lied about
gument
McCambridge
that the truth is to the
erate insinuation
contrary.
tainted
Doyle’s criminal record likewise
trial
in the relevant
McCambridge
Id. at 1106.
Brady
deprived McCambridge
It
sense.16
case, there was no
As in the instant
worthy of
resulting
of “a trial
in a verdict
that the defendant
question Udechukwu
juiy,
conclusion that the conviction can-
Udechulcwu's
claim
14. We considered
appeal, rather than collateral re-
inescapable.”
direct
not stand is
evaluating
purposes
McCam-
For
of
view.
claim,
bridge’s Brady
applies; the
Udechukwu
wholly unpersuasive
suggestion
16.I
find
in our standard of review
difference
majority
somehow
of the
take
addi-
is that we must
the two cases
unavailability
Doyle's
benefitted from the
of
determining
ap-
step
that the
tional
here of
record,
complete
which would have
criminal
McCambridge’s
affirming
peals
decision
court
neglect.
revealed the conviction for child
contrary to or an unreasonable
conviction is
by
prosecu-
caused
harm to
clearly
law.
application
established federal
by
representation to
tor’s failure to abide
judge
and to defense counsel
that he
law is consistent with our
15. Massachusetts
Doyle's
question the fact of
convic-
would not
regard.
In Commonwealth
own in this
advantage
vastly outweighs any
tion
McCam-
Collins,
434 N.E.2d
386 Mass.
by
having
jury
(1982),
bridge gained
learn
Supreme Judicial Court stated:
neglect
coupled
Doyle's
conviction was for child
“When the failure to disclose
misrepresentation made
the blatant
rather than child abuse.
closing argument
in his
289-90,
Strickler,
Second,
appeals
at
court
said that the
confidence.”17
jury must have believed McCambridge’s
S.Ct.
account of the struggle
given
and its cause
Nevertheless,
my
conclusion
manslaughter: “By
his conviction for
con
pros
prejudiced by
victing the defendant of
manslaughter,
failure to disclose
convic
ecution’s
jury obviously credited the defendant’s
to warrant the
not be sufficient
tion would
testimony
struggle
the van was
I
corpus.
of habeas
issuance of writ
precipitated by the defendant’s remark
the determination
also conclude that
must
Doyle.”
about
[the conviction]
McCam
constitut
appeals
of the
court bn this issue
bridge,
I
690 N.E.2d
475. As
have
clearly
application
an unreasonable
ed
explained my analysis
majority’s
of the
federal law as articulated
established
issue,
prejudice
similar
assessment
Supremе
See 28 U.S.C.
Court.18
the court’s conclusion that the
“obvi
2254(d)(1).
appeals
§
court found no ously
credited”
First,
it ob
prejudice for two reasons.
faulty, unduly speculative premi
rests on a
prejudice
no
served that “there was
jury may
,
se.19 The
well
reached
he was aware of
[McCambridge] because
manslaughter
verdict for
number of
prepared
the victim’s record and was
nothing
reasons having
to do with its cred
trial.”
offer such evidence at
McCam
iting McCambridge’s
insistence that the
bridge,
ent the evidence rests on an irrelevant
had been disclosed unduly speculative and an
observation circumstances, these I
premise. Under prejudice the court’s no
must conclude that constitutes unreasonable
determination clearly established
application of federal con- regarding prejudice
law
text, corpus writ of habeas should and the granted.
be QUINTANA-RUIZ, on her own
Minerva representation and in of her
behalf Reyes-Quin daughter, Ines M.
minor Plaintiff,
tana, Appellee, Cross-Appel
lant, CORPORATION,
HYUNDAI MOTOR
Defendant, Appellant, Cross-
Appellee. *36 01-1693, 01-1694.
Nos. Appeals, Court of
United States
First Circuit.
Heard 2002. June Aug.
Decided