Furtado v. Maloney , 125 F. App'x 318 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1675
THOMAS M. FURTADO,
Petitioner, Appellant,
v.
MICHAEL T. MALONEY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judge.
Thomas M. Furtado, Memorandum in Support of a Certificate of
Appealability pro se.
February 18, 2005
Per Curiam. Thomas M. Furtado seeks a certificate of
appealability (COA) to appeal from the denial of his second Rule
60(b) motion to obtain relief from the dismissal of his petition
under 28 U.S.C. § 2254 because it was "mixed," containing both
exhausted and unexhausted claims. Because the district court did
not address the merits of Furtado's claims, a COA should may issue
if he has shown that "(1) the soundness of the procedural ruling is
debatable, and (2) the constitutional claim is also colorable.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)." Mateo v. United
States, 310 F.3d 39, 40 (1st Cir. 2002). Because Furtado cannot
meet the merits prong of the COA test, we need not determine
whether the procedural prong has been satisfied.
1. Sufficiency of the Evidence
Petitioner's one exhausted claim is that the district
court violated his due process rights by denying his motion for a
required finding of not guilty where "no evidence of identification
was presented." The constitutional standard for sufficiency of the
evidence claims is whether "viewing the evidence in the light most
favorable to the prosecution, . . . no rational trier of fact could
have found, beyond a reasonable doubt, sufficient evidence of the
crime for which the defendant was convicted." Joseph v. Fair, 763
F.2d 9, 10 (1st Cir. 1985) (citing Jackson v. Virginia, 443 U.S. 307(1979)).
A summary of the evidence is set forth in the
Massachusetts Appeals Court decision, Commonwealth v. Furtado, 53
Mass. App. Ct. 1108, 2001 WL 1609078 (2001). Based upon that
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evidence, petitioner cannot make even a colorable claim that no
rational juror could have found, beyond a reasonable doubt,
sufficient evidence that Furtado was one of the perpetrators of the
charged offenses of armed robbery and assault with intent to rob.
Furtado's main argument here is that the identification evidence
was entirely circumstantial. However, "[t]he government need not
produce direct evidence to meet its burden of proof:
'circumstantial evidence, if it meets all the other criteria of
admissibility, is just as appropriate as direct evidence and is
entitled to be given whatever weight the jury deems it should be
given under the circumstances within which it unfolds.'" United
States v. Hughes, 211 F.3d 676, 681 (1st Cir. 2000) (citations
omitted).
2. Jury Coercion
The constitutional right at issue here is the right to an
uncoerced verdict. "Any criminal defendant . . . being tried by a
jury is entitled to the uncoerced verdict of that body." Lowenfield
v. Phelps, 484 U.S. 231, 241 (1988). This court has stated that
"[a]ny supplemental instruction in response to a jury's deadlock
can have a significant coercive effect by intimating that some jury
members should capitulate to others' views, or by suggesting that
the members should compromise their rational positions in order to
reach agreement." United States v. Hernandez-Albino, 177 F.3d 33,
38 (1st Cir. 1999). But this court has also recognized that "[t]he
right not to be put twice to the bar is of a very high order,"
United States v. Hotz, 620 F.2d 5, 6 (1st Cir. 1980), and that a
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judge should exercise his discretion to declare a mistrial on the
basis that the jury has reached an impasse, only "with great
reluctance." Id. at 7.
Furtado has not made even a colorable claim of jury
coercion. "Where . . . the judge reasonably concludes that the
jury is not deadlocked . . . , the defendant is not prejudiced by
a simple instruction to continue deliberating." United States v.
Figueroa-Encarnaciòn, 343 F.3d 23, 32 (1st Cir. 2003), cert. denied,
540 U.S. 1140 (2004). And the district court's failure to grant
defense counsel's request for a second instruction on the
government's burden of proof did not create a colorable due process
issue. Under similar circumstances this court has held that "[t]he
failure of the trial court to reinstruct the jury on the burden of
proof was not constitutionally defective since extensive
instructions had been previously given." Salemme v. Ristaino, 587
F.2d 81, 89 (1st Cir. 1978). Finally, there was no colorable claim
of constitutional magnitude stemming from the jury's communication
of its division on the question whether further deliberations could
assist them in returning a verdict. See Lowenfield, 484 U.S. at
240.
3. References by Prosecutor to Excluded Evidence
Furtado argued that his due process rights were violated
by the prosecutor's improper conduct in ignoring the court's in
limine order excluding any statements made by the deceased victim.
Prosecutorial misconduct violates a petitioner's due process rights
only "if the conduct 'so infected the trial with unfairness as to
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make the resulting conviction a denial of due process.'" Moreno-
Morales v. United States, 334 F.3d 140, 148 (1st Cir. 2003). The
Appeals Court found that "the judge submitted the case to the jury
solely as a circumstantial evidence case." Furtado, 2001 WL 1609078at ***1 n.2. The court also supportably found that "[v]iewed in
the light most favorable to the Commonwealth . . ., the
circumstantial evidence and the reasonable inferences drawn
therefrom were sufficient for a jury to conclude beyond a
reasonable doubt that the defendants were the robbers." Id. at
***1. Under these circumstances, Furtado has not made a colorable
claim that any misconduct by the prosecutor in referring to Jones'
identification of the defendants deprived Furtado of a fair trial.
4. Ineffective Assistance of Counsel
Finally, Furtado claimed that he was denied effective
assistance of counsel because his attorney 1) did not move for a
mistrial on the ground that the jury was deadlocked, and 2)
"fail[ed] to join in the Motion to Strike when the prosecutor
ignored the court's earlier ruling that Jones' statements were
inadmissible." Petitioner cannot make a colorable showing of
prejudice as to either claim. A motion for a mistrial for the
district court's alleged failure to conform to Mass. Gen. Laws ch.
234, § 34 would not have succeeded. The failure to join co-
defendant's motion to strike did not prejudice Furtado because the
motion was granted.
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We conclude that Furtado's § 2254 claims are not even
colorable. Therefore, his request for a COA is denied and the
appeal is terminated.
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