Scarpa v. DuboisScarpa v. Dubois
The question arises in the following context. Petitioner-appellee Nazzaro Scarpa brought a pro se application for habeas corpus in the federal district court.1 See
Respondent appeals. Although the district court‘s reading of Cronic finds some support in the case law, including isolated cases decided by the Ninth and Tenth Circuits, see United States v. Swanson, 943 F.2d 1070, 1073-74 (9th Cir. 1991); Osborn v. Shillinger, 861 F.2d 612, 626 (10th Cir. 1988), we believe that Cronic is not nearly so wide-ranging as the district court assumed. Hence, we reverse.
I. BACKGROUND
We glean the essential facts from the transcript of petitioner‘s trial in Suffolk Superior Court. On June 10, 1987, Joseph Desmond, an agent of the federal Drug Enforcement Administration (DEA), posing as a would-be cocaine purchaser, met with his initial target, Robert Ricupero, at a pub in East Boston. At Ricupero‘s request, petitioner joined them. The trio discussed a possible cocaine purchase and then crossed the street to a parked limousine that bore the insignia of the “Snow White Limousine Service.” Ricupero and Scarpa entered the vehicle. As Desmond later testified, Scarpa passed roughly 28 grams of cocaine to Ricupero, who handed it to Desmond in exchange for $1500 in cash. Ricupero kept $100 and gave the remainder to Scarpa. These events occurred under police surveillance.
The next encounter between Desmond and his prey occurred on July 18, 1987. In preparation for it, the authorities again assigned a cadre of law enforcement officers to surveillance duties. Desmond and Ricupero met at the same pub.
In due season, the Commonwealth indicted petitioner for drug trafficking and unlawful distribution. A jury convicted him on all charges after a four-day trial. The trial judge sentenced him to serve a lengthy prison term. Petitioner‘s motion for a new trial failed; the Massachusetts Appeals Court affirmed the conviction, see Commonwealth v. Scarpa, 30 Mass. App. Ct. 1106, 567 N.E.2d 1268 (1991) (table); and the Supreme Judicial Court (SJC) summarily denied petitioner‘s application for leave to obtain further appellate review (alofar), see Commonwealth v. Scarpa, 409 Mass. 1105, 571 N.E.2d 28 (1991).
Undaunted, Scarpa filed an application for a writ of habeas corpus in federal district court. After hearing arguments presented by Scarpa and by the Commonwealth, the district court granted the petition. It found that defense counsel‘s performance not only fell below an objectively reasonable standard of proficiency but also caused a breakdown in the adversarial system. This, the district judge thought, constituted prejudice per se. Accordingly, he vacated the
II. EXHAUSTION OF REMEDIES
The Commonwealth is the real party in interest in these proceedings, and we treat the case as if it were the named respondent. At the outset, the Commonwealth seeks to sidestep habeas relief by convincing us that petitioner failed to present his constitutional claim to the state courts before bolting to a federal forum. We are not persuaded.
A. Governing Principles.
Under our federal system, both the federal and state courts are entrusted with the protection of constitutional rights. See Ex parte Royall, 117 U.S. 241, 251 (1886). In order to ease potential friction between these two sovereigns, a federal court will ordinarily defer action on a cause properly within its jurisdiction until the courts of another sovereign with concurrent powers, already cognizant of the litigation, have had an opportunity to pass upon the matter. See Rose v. Lundy, 455 U.S. 509, 518 (1982). This practice, reflecting concerns of comity, has been codified in
In order to present a federal claim to the state courts in a manner sufficient to satisfy exhaustion concerns, a petitioner must inform the state court of both the factual and legal underpinnings of the claim. See Picard v. Conner, 404 U.S. 270, 276-78 (1971). The test is substantive: was the claim presented in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question? See Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir. 1989). While the answer to the question must not be made to depend on “ritualistic formality,” id. at 1097, neither is the answer wholly in the eye of the beholder.
In Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987), we catalogued four ways in which the requirement of fair presentment may be fulfilled: “1) citing a specific provision of the Constitution; 2) presenting the substance of a federal
B. Analysis.
Here, petitioner‘s odyssey through the Massachusetts court system involved a trial, a motion for a new trial, a full-dress appeal in the state appeals court, and an alofar. At all three post-trial stages, petitioner raised claims anent counsel‘s proficiency (or, more precisely put, counsel‘s lack of proficiency) and couched his claim in terms that remained largely unchanged. In his pleadings and memoranda at all three stages, petitioner alleged three principal shortcomings on counsel‘s part: a failure to attack the prosecution‘s star witness; a
Moreover, at the first two stages he cited three state cases, Commonwealth v. Pope, 467 N.E.2d 117 (Mass. 1984); Commonwealth v. Satterfield, 364 N.E.2d 1260 (Mass. 1977); Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974), that dealt squarely with this issue.3 In his motion for new trial, petitioner cited the Sixth Amendment by name, accompanying the motion with the affidavit of his trial counsel, Arthur Tacelli, attesting to Tacelli‘s self-professed ineffectiveness. Scarpa‘s federal habeas petition again asserted “ineffective assistance of counsel,” and cited the same three factual bases in support of the assertion.
On these facts, we agree with the district judge that the arguments presented by petitioner sufficiently alerted the state courts to the substance of the constitutional claim. In the first place, an argument phrased as “ineffective assistance of counsel” certainly “claim[s] a particular right specifically
If any doubt remains, the sockdolager is that, as a general rule, presenting a state-law claim that is functionally identical to a federal-law claim suffices to effectuate fair presentment of the latter claim. See Nadworny, 872 F.2d at 1099-1100. So it is here: petitioner brought himself within the encincture of this rule by his repeated citation to the trio of Massachusetts cases that we have mentioned cases that evaluate the effectiveness of an attorney‘s performance in terms reminiscent of the federal constitutional standard. As in Strickland, 466 U.S. 668, the Massachusetts cases call for a deferential evaluation of counsel‘s performance, and, if the performance is found to be substandard, an inquiry into whether counsel‘s incompetence injured the defendant‘s substantial rights. See Pope, 467 N.E.2d at 122-123; Satterfield, 364 N.E.2d at 1264; Saferian, 315 N.E.2d at 882-83.4
Despite minor differences in phraseology, the two standards state and federal strike us as equivalent. Indeed, the Commonwealth does not contend that a claim of ineffective assistance of counsel arising under Massachusetts law differs from such a claim arising out of the Sixth Amendment. We readily appreciate why this contention is not voiced. The essence of each inquiry looks to the likelihood that effective assistance of counsel would have produced a different trial outcome. The SJC itself, while leaving open the theoretical possibility that there might be some difference between the state and federal standards, has concluded that if their state‘s test is satisfied, “the Federal test is necessarily met as well.” Commonwealth v. Fuller, 475 N.E.2d 381, 385 n.3 (Mass. 1985). Finally, we deem it highly relevant that the SJC has continued to apply the Saferian analysis to ineffective assistance of counsel claims in the post-Strickland era. See, e.g., Commonwealth v. Charles, 489 N.E.2d 679, 688 (Mass. 1986); Commonwealth v. Licata, 591 N.E.2d 672, 676 (Mass. 1992).
To be sure, petitioner failed to cite directly to federal precedent in his journey through the state appellate process. In our view, however, this omission is not fatal. Although such citation is strongly recommended if only to avoid controversies of this nature, we have specifically declined to adopt a bright-line rule. See Nadworny, 872 F.2d at 1101 & n.4. The guidelines we have promulgated in respect to exhaustion are intended to be instructive, rather than to comprise the sole corridors through which the “actual embodiment of fair presentation” may pass. Id. at 1097.
To say more would be supererogatory. For the reasons stated above, we conclude that petitioner‘s Sixth Amendment claim was put to the state courts with the requisite clarity. See Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979) (finding a similar claim exhausted, under analogous circumstances, because “the mention of `effective assistance of counsel’ instantly calls to mind the Sixth Amendment‘s guaranty of the accused‘s right `to have the Assistance of Counsel for his defence‘“) (citations omitted); see also Daye v. Attorney General, 696 F.2d 186, 193 (2d Cir. 1982) (en banc) (reaffirming Twitty holding); Brady v. Ponte, 705 F. Supp. 52, 54 (D. Mass. 1988) (stating that explicit reference to “ineffective assistance of counsel” suffices to exhaust a Sixth Amendment claim) (dictum).
III. THE MERITS
A. Governing Principles.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Strickland, 466 U.S. at 687. The touchstone for determining whether an attorney‘s performance falls below the constitutional norm is whether counsel has brought “to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. at 688. The inquiry has two foci. First, a reviewing court must assess the proficiency of counsel‘s performance under prevailing professional norms. See United States v. Natanel, 938 F.2d 302, 310 (1st Cir. 1991), cert. denied, 112 S. Ct. 986 (1992). This evaluation demands a fairly tolerant approach; after all, the Constitution pledges to an accused an effective defense, not necessarily a perfect defense or a successful defense. See, e.g., Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993); Natanel, 938 F.2d at 309. And, moreover, since even the most celebrated lawyers can differ over trial tactics in a particular case, a reviewing court must “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
An inquiry into the effectiveness of counsel is almost always a mixed question of law and fact. See Strickland, 466 U.S. at 698. In federal courts, mixed questions of law and fact arising in section 2254 cases are ordinarily subject to de novo review. See Chakouian v. Moran, 975 F.2d 931, 934 (1st Cir. 1992). This includes claims premised on ineffective assistance of counsel. See, e.g., McAleese v. Mazulkiewcz, 1 F.3d 159, 165 (3d Cir. 1993); Fields v. Attorney General, 956 F.2d 1290, 1297 n.18 (4th Cir.), cert. denied, 113 S. Ct. 243 (1992). Comfortable with this precedent, and mindful that the district court‘s “prejudice per se” ruling derives from a conception of law rather than from a finding of fact, we apply a de novo
B. The State Court Trial.
In the superior court, the prosecution conveyed its case principally through two witnesses. Desmond supplied detailed, firsthand testimony anent the cocaine sales and a Boston police detective, Joseph Mugnano, testified that Scarpa admitted owning the Snow White Limousine Service.
Scarpa‘s defense counsel did not attempt to impeach Desmond, but, rather, rehashed the direct examination, extracting from Desmond the following facts: that Ricupero, not Scarpa, was the primary target of the DEA‘s investigation; that Ricupero initially indicated to Desmond that his repository for drugs was a pickup truck, not a limousine; that, with respect to the first transaction, (1) Desmond did not know who put the cocaine in the limousine, and (2) someone other than Scarpa actually handed the
So, I‘m asking you, as finders of fact, to believe Detective Mugnano, because his testimony, I suggest, is innocuous. The second witness that the Government and the prime witness that the Government produced in support of their argument that Mr. Scarpa was guilty of cocaine trafficking and distribution, was Agent Desmond . . . And you listen to DEA Agent Drug Enforcement Agent Desmond. And I ask you: What motive would that man have to come into a superior court courtroom, with a varied jury, a superior court judge, what motive would he have for lying? What motive would he have to tell an untruth? What motive would he have to color the fact situation as he remembered it? And I suggest to you and I hope you find resoundingly that he has no motive but that of following the truth. . . . [I]‘m asking you to find that man a credible human being; a man who came in, took the oath and told the truth [emphasis supplied].
Speaking of Scarpa, Attorney Tacelli continued:
Was he a user of cocaine? Was he a dupe? What happened to that money? What was its final destination? Is Scarpa a user of drugs? Is Scarpa someone that Ricupero, the target of the investigation is Scarpa was he used by Ricupero to shield himself? . . . And I‘m suggesting to you again, at the expense of being repetitious, Scarpa is not found and it is undetermined that is the word that Agent Desmond used on July 8th it‘s undetermined if Scarpa had any of that
money. . . . And clearly, the source of the cocaine on the 8th was not Scarpa. At best he was a conduit; someone through whom it passed, and through whom the money passed [emphasis supplied].
During summation, the prosecutor agreed that Desmond had no reason to lie. He told the jury that the Commonwealth had no obligation to prove either the source of the cocaine or the ultimate destination of the money. And he labelled defense counsel‘s closing argument “a smokescreen.”
In due course, the judge instructed the jury on the elements of the trafficking offense. He told the jurors, in substance, that to convict, they must find that the defendant (1) knowingly (2) possessed cocaine; (3) with the intent to distribute it; and (4) that the quantity of cocaine must be in excess of 28 grams. See
C. The Attorney‘s Performance.
The district court deemed defense counsel‘s argument as tantamount to arguing that petitioner was a “mere conduit” for the contraband. Believing that this approach effectively conceded the only disputed elements of the charged crimes and
We uphold this finding. At the least, defense counsel in a criminal case should understand the elements of the offenses with which his client is charged and should display some appreciation of the recognized defenses thereto. See Young v. Zant, 677 F.2d 792, 798 (11th Cir. 1982) (explaining that defense counsel falls below performance standard by failing to understand his client‘s factual claims or the legal significance of those claims); Baty v. Balkcom, 661 F.2d 391, 394-95 (5th Cir. 1981) (holding that defense counsel‘s unfamiliarity with his client‘s case transgressed performance standard), cert. denied, 456 U.S. 1011 (1982). Unless counsel brings these rudiments to the table, a defendant likely will be deprived of a fair “opportunity to meet the case of the prosecution,” Strickland, 466 U.S. at 685 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 276 (1942)), and, thus, will be placed at undue risk of having no effective advocate for his cause. Phrased another way, if an attorney does not grasp the basics of the charges and the potential defenses to them, an accused may well be stripped of the very means that are essential to subject the prosecution‘s case to adversarial testing. See id. at 688.
We agree with the district court that this is such a case. Defense counsel‘s pursuit of his half-baked theory evidenced a blatant misunderstanding of the charged crimes.
The Commonwealth‘s rejoinder is lame. First, it contends that Attorney Tacelli rendered constitutionally effective assistance because the conduit defense is a “common defense which raises issues considered good strategy.” This is no more than an ipse dixit, unsupported by authority. To be sure, the Commonwealth cites a quadrat of cases in a conspicuously unsuccessful effort to bolster this claim but none of them is persuasive on the point. Two of these cases stand for the unremarkable proposition that “mere presence” is not enough to convict in a narcotics case, in the absence of other evidence. See Commonwealth v. Cruz, 614 N.E.2d 702, 704 (Mass. 1993); Commonwealth v. Brown, 609 N.E.2d 100, 103 (Mass. 1993); see also United States v. Ortiz, 966 F.2d 707, 711-12 (1st Cir. 1992) (explaining difference between “mere presence” and “culpable presence” in drug-trafficking cases), cert. denied, 113 S. Ct. 1005 (1993). The other two cases are easily distinguishable on the facts. See Commonwealth v. Johnson, 602 N.E.2d 555, 559 & n.8 (Mass. 1992); Commonwealth v. Claudio, 525 N.E.2d 449, 451-52 (Mass. 1988).
Second, respondent attempts to cast Attorney Tacelli‘s pratfalls as an argument for jury nullification. This is pure conjecture. The record contains no indication that counsel strove to implant the notion of nullification in the jurors’
D. Prejudice.
Having found substandard performance, we come next to the second prong of the Strickland inquiry. The district court, while acknowledging that Scarpa‘s plight was “well nigh hopeless,” bypassed a case-specific inquiry into prejudice, instead finding prejudice per se on the theory that counsel was so derelict in his duty that petitioner, in effect, had no counsel at all. We reject the application of a per se standard to this case. Moreover, after conducting the full Strickland analysis in the appropriate way, we find that petitioner suffered no actual prejudice.
1.
As mentioned above, the district court relied primarily
For the most part, courts have been cautious in invoking the exception limned in the Cronic dictum. Cronic-like principles have been applied, for example, in situations in which
A few courts have extended the exception‘s boundaries beyond the circumstances surrounding representation and found that a lawyer‘s particular errors at trial may cause a breakdown in the adversarial system and thus justify invocation of the Cronic dictum. See Swanson, 943 F.2d at 1074 (holding that knowingly and explicitly conceding reasonable doubt in closing argument is per se prejudicial); Osborn, 861 F.2d at 628-29 (finding per se prejudice when defense counsel intentionally stressed the brutality of his client‘s crime, admitted that the
We are not alone in our attempt to harmonize Cronic with Strickland by drawing an easily visible line separating those few cases in which prejudice may be presumed from the mine-run (in which actual prejudice must be shown). When confronted by particular errors on the part of defense counsel, best evaluated in the context of the defendant‘s trial, other federal
These authorities suggest that attorney error, even when egregious, will almost always require analysis under Strickland‘s prejudice prong. We agree. Thus, we decline to adopt the expanded version of Cronic embraced by the district court. Our reasons are manifold, but four of them are paramount.
First, we do not think that the Court intended such an expansion to occur. Second, once it is necessary to examine the trial record in order to evaluate counsel‘s particular errors, resort to a per se presumption is no longer justified by the wish to avoid the cost of case-by-case litigation. An overly generous reading of Cronic would do little more than replace case-by-case litigation over prejudice with case-by-case litigation over prejudice per se.
Third, in our judgment the proper approach to the intended reach of the Cronic dictum is informed by the refinements of the harmless-error doctrine contained in a battery of recent Supreme Court cases. Some constitutional errors, denominated “trial errors,” will not result in reversal of a conviction if they are shown to be harmless. See Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993); Arizona v. Fulminante, 499 U.S. 279, 306-08 (1991).
We are confident that what transpired in this case bears a much stronger resemblance to trial error than to structural error. Like the line separating trial errors from structural errors, the line past which prejudice will be presumed in cases involving claims of ineffective assistance ought to be plotted to exclude cases in which a detailed contextual analysis is required. Drawing the line in this way is especially fitting, we suggest, because like the harmless-error doctrine, the prejudice prong of Strickland helps to promote the salutary tenet that “the central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence, and promote[] public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (citation omitted).
Our fourth and final reason for taking a somewhat narrow view of the Cronic dictum is closely related to the concerns that the Court has expressed in the harmless-error cases. In addition to comity and federalism concerns, the state has an important interest in the finality of its jury verdicts and in keeping behind bars criminals who have been fairly tried
To summarize, we hold that Strickland controls inquiries concerning counsel‘s actual performance at trial, and that substandard performance, in the nature of particular attorney errors, cannot conclusively be presumed to have been prejudicial. Silhouetted against this backdrop, we consider it supremely important that Attorney Tacelli‘s blunders cannot be judged solely by the “surrounding circumstances” of the representation, but, rather, must be judged in light of the whole record, including the facts of the case, the trial transcript, the exhibits, and the applicable substantive law. We conclude that this characterization places the case beyond Cronic‘s reach. Put bluntly, because Attorney Tacelli‘s errors are more an example of maladroit performance than of non-performance, Strickland necessitates an inquiry into the existence of actual prejudice.
2.
Since the district court presumed prejudice, it made no explicit findings on the second prong of the Strickland test. We have considered the advisability of remanding for this purpose, but we conclude that it is unnecessary to do so. The origins of the case date back to 1987; the parties have briefed and argued the issue of actual prejudice; and the record is sufficient to permit us to perform the decisionmaking task. Moreover, all the evidence was taken in the state courts; thus, we are in as good a position as the federal district judge to probe the matter. And,
A convicted defendant can establish the requisite prejudice in an ineffective assistance case by demonstrating a reasonable probability that, but for counsel‘s bevues, the trial outcome would have been different. For this purpose, a reasonable probability is defined as that which undermines confidence in the result of the proceeding. See Strickland, 466 U.S. at 694; see also Kotteakos v. United States, 328 U.S. 750, 764 (1946). We caution however, that the analysis does not focus solely on outcome determination, but also takes into prominent consideration “whether the result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 113 S. Ct. 838, 842 (1993). This question must be answered without reference to certain extraneous factors, such as “the possibility of arbitrariness, whimsy, caprice, `nullification,’ and the like,” which do not legitimately enter the jury‘s deliberations. Strickland, 466 U.S. at 695. With these omissions, our analysis proceeds “on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Id.
Despite Attorney Tacelli‘s ineptitude, we discern no actual prejudice here. The government presented clear, uncontroverted eyewitness testimony from an agent who
We agree with the district court‘s observation that, on this record, it is difficult to imagine any rational jury failing to convict. Because there is neither a reasonable probability that the outcome of the trial would have differed if counsel had been more adept nor any solid basis for believing that the trial was fundamentally unfair or unreliable, no Sixth Amendment violation inheres.
IV. CONCLUSION
We need go no further. Petitioner‘s habeas claim is ripe for review, but, upon due consideration, the claim fails.
Reversed and remanded.
Notes
The statute provides in pertinent part:
* * *
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The SJC has made clear that it ordinarily considers questions involving “assistance of counsel” as coming ”within the meaning of the Sixth Amendment.” Saferian, 315 N.E.2d at 882 (emphasis supplied). A defendant must show that
there has been serious incompetency, inefficiency, or inattention of counsel behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer and, if that is found, then, typically, whether it has likely
deprived the defendant of an otherwise available, substantial ground of defence.
Id. at 883. This is functionally identical to the federal standard, which calls for a defendant to show
that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Of course, courts have not required a showing of prejudice when the attorney‘s inadequate performance completely denies the defendant his right to an appeal. See, e.g., Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992) (requiring no showing of prejudice when the defendant‘s appeal was dismissed due to his lawyer‘s failure to file a brief); United States ex rel. Thomas v. O‘Leary, 856 F.2d 1011, 1016-17 (7th Cir. 1988) (finding prejudice per se when defense counsel filed no brief during state‘s appeal of a suppression order and the ensuing decision was thus based only on the record and the government‘s brief); Williams v. Lockhart, 849 F.2d 1134, 1137 n.3 (8th Cir. 1988) (finding prejudice per se in attorney‘s failure to bring appeal after promising to do so).
The counterpoint, however, is that in deciding whether to require a showing of prejudice for inadequate legal assistance on appeal, courts have traced a line, analogous to the one we draw today, distinguishing between inept performance and no performance. See, e.g., Penson v. Ohio, 488 U.S. 75, 88 (1988) (requiring no showing of prejudice when defendant‘s lawyer withdrew without filing a brief on appeal, and distinguishing this situation from “a case in which counsel fails to press a particular argument on appeal or fails to argue an issue as effectively as he or she might“) (citation omitted); Bonneau, 961 F.2d at 23 (requiring no showing of prejudice but distinguishing its facts from “a case of sloppy briefing that missed some vital issues” or a case of “inadequate oral argument“).