McClary v. Pepe ( 1995 )

USCA1 Opinion

          November 17, 1995     [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT





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          No. 94-2294
No. 94-2294



                                  ROBERT E. McCLARY,
ROBERT E. McCLARY,



                                Petitoner, Appellant,
Petitoner, Appellant,



                                          v.
v.



                             PETER A. PEPE,  JR., ET AL.,
PETER A. PEPE,  JR., ET AL.,



                               Respondents, Appellees.
Respondents, Appellees.





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                                     ERRATA SHEET
ERRATA SHEET







               The opinion of  this Court  issued on November  9, 1995,  is
The opinion of  this Court  issued on November  9, 1995,  is

          amended as follows:
amended as follows:



               On page 2, footnote 27 is changed to footnote 1.
On page 2, footnote 27 is changed to footnote 1.





































































          November 9, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





                                 ____________________





        No. 94-2294



                                  ROBERT E. McCLARY,



                                Petitoner, Appellant,



                                          v.



                             PETER A. PEPE,  JR., ET AL.,



                               Respondents, Appellees.





                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ____________________



            Robert E. McClary on brief pro se.
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            Scott  Harshbarger,   Attorney  General,   and  Pamela  L.   Hunt,
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        Assistant Attorney General, on brief for appellees.





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                 Per Curiam. Pro se plaintiff Robert McClary appeals from
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            the  summary dismissal  of his  habeas  corpus petition.   He



            claims  that  his  conviction  for  trafficking  cocaine   is



            unconstitutional  because  the prosecutor  violated  Doyle v.
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            Ohio,  426  U.S.  610 (1976),  by  improperly cross-examining
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            McClary and  commenting on  McClary's post-arrest  silence in



            his closing argument.



                 We have thoroughly reviewed  the record and the parties'



            briefs  on appeal.  We are persuaded that the habeas petition



            was properly  dismissed under  Anderson v. Charles,  447 U.S.
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            404, 408-09  (1981), (per  curiam), and Grieco  v. Hall,  641
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            F.2d 1029, 1032-36 (1st Cir. 1981).   We note that even if we



            assumed arguendo  that Doyle error is  present, habeas relief
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            is  not  warranted  here.   The  record  discloses  that  the



            evidence against McClary was strong and that the  error could



            not have  had  a  substantial and  injurious  effect  on  the



            verdict.  See  Brecht v.  Abrahamson, 113 S.  Ct. 1711,  1722
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            (1993).   While  we  need not  decide  whether the  "harmless



            beyond a reasonable doubt" test of Chapman v. California, 386
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            U.S.  18, 24 (1967), should  be applied to  this appeal1, the



            evidence indicates that any  alleged Doyle error was harmless
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            under  this test  as well. Accordingly,  the judgment  of the










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            1.  While  McClary made this argument below, he has failed to

            develop it on appeal.  Thus, the point has been  waived.  See
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            United  States v. Zannino, 895  F.2d 1, 17  (1st Cir.), cert.
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            denied, 494 U.S. 1082 (1990).
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            district court is affirmed.
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