Scarpa v. Dubois ( 1994 )

November 22, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1795
NAZZARO SCARPA,
Petitioner, Appellee,
v.
LARRY E. DUBOIS, ETC.,
Respondent, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on October 18, 1994, is
corrected as follows:
On page 26, line 17, "449" should be "499"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1795
NAZZARO SCARPA,
Petitioner, Appellee,
v.
LARRY E. DUBOIS, ETC.,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
William J. Duensing, Assistant Attorney General, with whom
Scott Harshbarger, Attorney General, was on brief, for appellant.
Nazzaro Scarpa, pro se, orally and on original briefs, and
Seth M. Kalberg, by appointment of the court, orally and on
supplemental brief, for appellee.
October 18, 1994
SELYA, Circuit Judge. This appeal requires that we
SELYA, Circuit Judge.
address an important question, not authoritatively resolved by
controlling precedent: When (if ever) does defense counsel's
substandard performance in a criminal case never a pretty sight
become so unattractive that a habeas court must forgo the
customary inquiry into the harmful effects of attorney error and,
instead, conclusively presume that counsel's blunders prejudiced
the defendant?
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 28 U.S.C.
2241-2254 (1988). He denominated a state correctional
official, in his representative capacity, as the respondent. The
district court discerned a Sixth Amendment violation: it
concluded that Scarpa's trial counsel in the state court rendered
grossly ineffective legal assistance to him, see Strickland v.
Washington, 466 U.S. 668, 687 (1984) (elucidating applicable
test); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985)
(applying Strickland in the habeas context), and that counsel's
woeful performance gave rise to a per se presumption of
prejudice. The district court relied principally on dictum
contained in United States v. Cronic, 466 U.S. 648 (1984), for
the proposition that it did not need to inquire into the
1On appeal, petitioner has also appeared pro se, preparing a
brief and arguing orally on his own behalf. To assist him, we
appointed counsel who filed a supplemental brief and presented
additional oral argument.
3
existence of actual prejudice.
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
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.
4
At Ricupero's invitation, Scarpa again joined them. On this
occasion, the actual exchange occurred in the deserted stairwell
of a nearby apartment building, and a fourth man, James Marcella,
entered the equation. Desmond testified that Marcella handed a
package containing roughly 55 grams of cocaine to Scarpa, who
passed the package to Ricupero. When Ricupero placed the drugs
within Desmond's reach, Desmond handed him $3000. Ricupero
slipped the money to Scarpa, who turned it over to Marcella.
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
5
conviction, ordered petitioner released from state custody, and
directed the Commonwealth to retry him if it sought to exact
further punishment. The court refused respondent's application
for a stay, and petitioner is at liberty.
II. EXHAUSTION OF REMEDIES
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.
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 28 U.S.C. 2254,2 and memorialized
2The 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
6
in our case law, see, e.g., Mele v. Fitchburg Dist. Court, 850
F.2d 817, 819 (1st Cir. 1988).
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
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.
28 U.S.C. 2254(b), (c) (1988).
7
constitutional claim in such manner that it likely alerted the
state court to the claim's federal nature; 3) reliance on federal
constitutional precedents; and 4) claiming a particular right
specifically guaranteed by the Constitution." We did not,
however, attribute exclusivity to this compendium. In Nadworny,
872 F.2d at 1099-1100, we mentioned a fifth possibility, namely,
the assertion of a state law claim that is functionally identical
to a federal claim. These possibilities recognize that certain
constitutional violations have the capacity to rest on a variety
of factual bases. While the facts and legal theories need not be
propounded in precisely the same terms, fair presentation
requires that the constitutional analysis necessary to resolve
the ultimate question posed in the habeas petition and in the
state court proceedings, respectively, be substantially the same.
See Lanigan v. Maloney, 853 F.2d 40, 44-45 (1st Cir. 1988), cert.
denied, 488 U.S. 1007 (1989).
B. Analysis.
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
8
mindless solicitation to the jury to believe that star witness;
and the ill-advised pursuit of a defense, not legally cognizable,
that virtually conceded the elements of the charged offenses.
Throughout the appellate process, petitioner described his claim
as "ineffective assistance of counsel."
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
3The Commonwealth makes much of the fact that these cases
were not cited in the alofar, and insists that Mele, 850 F.2d at
823, requires a federal court to restrict the exhaustion inquiry
to that document. This crabbed reading of Mele wrenches the case
out of its context. There, the defendant raised his
constitutional issue before the intermediate appellate court,
abandoned it in his alofar, and then attempted to raise it anew
in his habeas petition. See id. at 818-19. In contrast, Scarpa
has consistently asserted his ineffective assistance claim.
9
guaranteed by the Constitution." Gagne, 835 F.2d at 7. In the
second place, by identifying the Sixth Amendment in his motion
for a new trial, petitioner "cite[s] a specific provision of the
Constitution," id., and, at the same time, provided a backdrop
against which his later filings had to be viewed.
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
4The 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
10
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
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.
Strickland, 466 U.S. at 687.
11
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
III. THE MERITS
12
We segment our consideration of the merits, first
outlining certain legal principles of general applicability, then
essaying an overview of petitioner's trial, and thereafter
synthesizing the fruits of these endeavors by applying the
relevant principles to the relevant circumstances.
A. Governing Principles.
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.
13
The second line of inquiry is needed because, in
itself, dreary lawyering does not offend the Constitution.
Rather, a finding that counsel failed to meet the performance
standard merely serves to advance the focus of the Strickland
inquiry to the question of whether the accused suffered prejudice
in consequence of counsel's blunders. See id. at 692. This
entails a showing of a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A defendant who alleges
ineffective assistance of counsel must carry the devoir of
persuasion on both tiers of the Strickland test. See, e.g.,
Lema, 987 F.2d at 51. The same holds true of a habeas petitioner
who claims that counsel mishandled his case in the state courts.
See Perron v. Perrin, 742 F.2d 669, 673 (1st Cir. 1984).
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
14
standard of review here.5
B. The State Court Trial.
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
5Some courts have suggested that a standard of independent
review which we have described in a different context as "an
intermediate level of scrutiny, more rigorous than the abuse of
discretion or clear-error standards, but stopping short of
plenary or de novo review," United States v. Tortora, 922 F.2d
880, 883 (1st Cir. 1990) applies in habeas cases. See, e.g.,
Battle v. Dell, 19 F.3d 1547, 1552 (8th Cir. 1994); Hamilton v.
Ford, 969 F.2d 1006, 1010 (11th Cir. 1992), cert. denied, 113 S.
Ct. 1625 (1993); see also S. Childress & M. Davis, Federal
Standards of Review 13.05, at 13-37 (1992). We are satisfied
that de novo review is appropriate in the case at bar, and we
need not decide today whether a standard of independent review
should ever be employed in habeas cases. Withal, it strikes us
that where, as here, the district judge does not himself take any
evidence, the gap between independent review and de novo review,
if one exists at all, is necessarily very small. Cf. Tortora,
922 F.2d at 883 (explaining that lesser deference is warranted
when district court essays no "new or different factfinding,"
but, instead, acts on the basis of a magistrate's findings and
report).
15
drugs to Desmond; that, with respect to the second transaction,
(1) Scarpa was a middle link in the chain of drugs and cash, and
(2) Desmond did not know whether Scarpa received any money
referable to that transaction. Attorney Tacelli declined to
question Mugnano and produced no witnesses in Scarpa's defense.
His closing argument consisted of a terse explanation of the
concept of reasonable doubt and a solicitation to the jury to
accept the government's testimony:
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
16
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 Mass. Gen. Laws ch. 94C, 32E(b)
(1992). The judge instructed the jurors to much the same effect
in regard to the distribution charge, but substituted
distribution for possession and eliminated any reference to a
minimum quantity of cocaine. See id. 32A(a). The judge also
informed the jury that the identity of "the kingpin" did not bear
upon the charges at hand. The jury convicted Scarpa on both
counts.
C. The Attorney's Performance.
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
17
relieved the prosecution of its burden of proof, the court found
Attorney Tacelli's use of it to be objectively unreasonable, and
therefore, substandard.
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.
18
Being a "conduit" denotes acting as an agent or intermediary.
Persons who knowingly serve as agents or intermediaries in
narcotics transactions are punishable as principals under
Massachusetts law. See Commonwealth v. Murillo, 589 N.E.2d 340,
342 (Mass.), rev. denied, 575 N.E.2d 326 (1992); Commonwealth v.
Poole, 563 N.E.2d 253, 255 (Mass. 1990). Thus, the line of
defense that counsel selected was altogether irrelevant to
petitioner's guilt or innocence; and, to compound the problem,
the steps taken in pursuit of it such as urging the jury to
accept Desmond's testimony played into the prosecution's hands.
Serious errors in an attorney's performance, unrelated to
tactical choices or to some plausible strategic aim, constitute
substandard performance. See United States v. Weston, 708 F.2d
302, 306 (7th Cir.) (examining only those errors not reasonably
classifiable as tactical choices to determine the existence of
grossly unprofessional conduct), cert. denied, 464 U.S. 962(1983); see also Francis v. Spraggins, 720 F.2d 1190, 1194 (11th
Cir. 1983) (stating that "complete concession of the defendant's
guilt" may constitute ineffective assistance), cert. denied, 470
U.S. 1059 (1988); cf. United States v. Tabares, 951 F.2d 405, 409
(1st Cir. 1991) (finding no ineffective assistance when counsel's
concession is strategic); Underwood v. Clark, 939 F.2d 473, 474
(7th Cir. 1991) (similar). This verity has particular force
where, as here, counsel's blunders not only failed to assist in
fashioning a defense but also cemented the prosecution's theory
of the case. There are times when even the most adroit advocate
19
cannot extricate a criminal defendant from a pit; but when
counsel, to no apparent end, digs the hole deeper, the Sixth
Amendment performance standard is likely implicated.
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'
20
minds. In any event, "although jurors possess the raw power to
set the accused free for any reason or for no reason, their duty
is to apply the law as given to them by the court." United
States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993), cert.
denied, 114 S. Ct. 2714 (1994); see also Commonwealth v. Leno,
616 N.E.2d 453, 457 (1993) ("We do not accept the premise that
jurors have the right to nullify the law on which they are
instructed . . . ."). Consequently, defense counsel may not
press arguments for jury nullification in criminal cases, see
Sepulveda, 15 F.3d at 1190; United States v. Desmarais, 938 F.2d
347, 350 (1st Cir. 1991); Leno, 616 N.E.2d at 457, and we will
not permit the Commonwealth to pretend that it sat idly by and
allowed Attorney Tacelli to violate this rule.
D. Prejudice.
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.
1.
As mentioned above, the district court relied primarily
21
on dictum contained in United States v. Cronic, 466 U.S. at 658-
60, for the proposition that, in the circumstances at bar, it
could forgo an inquiry into actual prejudice. The Cronic Court
stated that in rare instances prejudice might be presumed
"without inquiry into counsel's actual performance at trial."
Id. at 662 (dictum). But, the approach suggested in this
statement is in all events the exception, not the rule and it
can be employed only if the record reveals presumptively
prejudicial circumstances such as an outright denial of counsel,
a denial of the right to effective cross-examination, or a
complete failure to subject the prosecution's case to adversarial
testing.6 See id. at 659. The Cronic Court itself warned that,
in most cases, a showing of actual prejudice remained a necessary
element. See id. The Court stated: "there is generally no
basis for finding a Sixth Amendment violation unless the accused
can show how specific errors of counsel undermined the
reliability of the finding of guilt." Id. at 659 n.26.
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
6The facts of Cronic illustrate the narrowness of the
exception. In that case, the defendant was charged in a
complicated check-kiting scheme. The government had spent over
four years investigating the case, but when the defendant's
counsel withdrew, the trial court appointed a young real estate
lawyer only 25 days before trial. The Supreme Court held that
this brief period for preparation was "not so short that it even
arguably justifies a presumption that no lawyer could provide the
[defendant] with the effective assistance of counsel required by
the Constitution." 466 U.S. at 665.
22
defense counsel labored under an actual conflict of interest, see
Cuyler v. Sullivan, 446 U.S. 335 (1980), or in which no attorney
appeared despite a defendant's unwaived right to appointed
counsel, see United States v. Mateo, 950 F.2d 44, 48-50 (1st Cir.
1991), or in which defendant's lawyer sat in total silence
throughout the relevant proceeding, see Tucker v. Day, 969 F.2d
155, 159 (5th Cir. 1992) (involving resentencing); Harding v.
Davis, 878 F.2d 1341, 1345 (11th Cir. 1989) (holding that defense
counsel's muteness throughout trial, including his utter silence
as the judge directed a verdict against his client, is per se
prejudicial), or in which the defense attorney was absent from
the courtroom during a critical part of the trial, see Green v.
Arn, 809 F.2d 1257, 1259-64 (6th Cir.), cert. granted, vacated
and remanded to consider mootness, 484 U.S. 806 (1987); Siverson
v. O'Leary, 764 F.2d 1208, 1217 (7th Cir. 1985), or, pre-Cronic,
in which counsel snoozed through much of the proceedings, see
Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984).
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
23
evidence against his client was overwhelming, and made statements
to the press that his client had no evidence to support his
claims). We believe that these cases misperceive the rationale
underlying the Cronic exception. In our view, the Court's
language in Cronic was driven by the recognition that certain
types of conduct are in general so antithetic to effective
assistance for example, lawyers who leave the courtroom for
long stretches of time during trial are unlikely to be stellar
advocates in any matter that a case-by-case analysis simply is
not worth the cost of protracted litigation. No matter what the
facts of a given case may be, this sort of conduct will almost
always result in prejudice. See Cronic, 466 U.S. at 658-59. But
attorney errors particular to the facts of an individual case are
qualitatively different. Virtually by definition, such errors
"cannot be classified according to likelihood of causing
prejudice" or "defined with sufficient precision to inform
defense attorneys correctly just what conduct to avoid."
Strickland, 466 U.S. at 693. Consequently, the Court has
declined to accord presumptively prejudicial status to them. See
id.
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
24
courts have refused to march under the Cronic banner, and,
instead, notwithstanding the seriousness of the errors, have
performed both parts of the requisite Strickland analysis. Thus,
in McInerny v. Puckett, 919 F.2d 350 (5th Cir. 1990), the
defendant claimed that his lawyer's lack of preparedness and
failure to raise an insanity defense justified the invocation of
the Cronic dictum. See id. at 352-53. In requiring a showing of
prejudice, the Fifth Circuit noted that "bad lawyering,
regardless of how bad, does not support the [per se] presumption;
more is required." Id. at 353; see also United States v.
Thompson, 27 F.3d 671, 676 (D.C. Cir. 1994) (finding no prejudice
per se in defense counsel's failure to inform defendant before
guilty plea that, as a career offender, he faced possible life
imprisonment); United States v. Baldwin, 987 F.2d 1432, 1437-38
(9th Cir.) (finding no prejudice per se where attorney conceded
his client's guilt at pretrial conference and neglected to
request jury instruction on overt act requirement for conspiracy
charge), cert. denied, 113 S. Ct. 2948 (1993); Woodard v.
Collins, 898 F.2d 1027, 1028 (5th Cir. 1990) (requiring showing
of prejudice where defense counsel advised the accused to plead
guilty to a charge that counsel had not investigated); United
States v. Reiter, 897 F.2d 639, 644-45 (2d Cir.) (applying full
Strickland standard in spite of defendant's claim that counsel's
errors were so pervasive as to amount to "no counsel at all"),
cert. denied, 498 U.S. 990 (1990); Green v.Lynaugh, 868 F.2d 176,
177-78 (5th Cir.) (applying full Strickland analysis to
25
attorney's decision to conduct "almost no investigation"), cert.
denied, 493 U.S. 831 (1989); Henderson v. Thieret, 859 F.2d 492,
499 (7th Cir. 1988) (applying second prong of Strickland to
attorney's lack of preparation in connection with sentencing),
cert. denied, 490 U.S. 1009 (1989); Gardner v. Ponte, 817 F.2d
183, 186-87 (1st Cir.) (refusing to extend Cronic to attorney's
failure to object to jury instructions), cert. denied, 484 U.S.
863 (1987); State v. Savage, 577 A.2d 455, 466 (N.J. 1990)
(finding no prejudice per se in a capital case where counsel only
met once with defendant). Similarly, in reviewing claims of
ineffective assistance of counsel at the appellate level, courts
have declined to apply Cronic to attorney errors that do not
amount to the constructive absence of counsel. See, e.g.,
Hollenback v. United States, 987 F.2d 1272, 1276 & n.1 (7th Cir.
1993) (finding no per se prejudice in appellate counsel's
citation to wrong provision of money-laundering statute); United
States v. Birtle, 792 F.2d 846, 847-48 (9th Cir. 1986) (finding
no per se prejudice when defendant's appellate counsel failed to
appear at oral argument or file a reply brief).7
7Of 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).
26
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.
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").
27
Abrahamson, 113 S. Ct. 1710, 1722 (1993); Arizona v. Fulminante,
499 U.S. 279, 306-08 (1991). Examples of such trial errors
include overbroad jury instructions used during the sentencing
stage of a capital case, see Clemons v. Mississippi, 494 U.S.
738, 752 (1990); jury instructions containing an erroneous (but
rebuttable) presumption, see Carella v. California, 491 U.S. 263,
266-67 (1989); and improper prosecutorial comment on the
defendant's silence, see United States v. Hasting, 461 U.S. 499,
509 (1983). However, other more fundamental errors, denominated
"structural errors," jar the framework in which the trial
proceeds and, accordingly, are said to "defy analysis by
``harmless-error' standards," Brecht, 113 S. Ct. at 1717 (quoting
Fulminante, 499 U.S. at 309), and, thus necessitate "automatic
reversal of [a] conviction because they infect the entire trial
process," id. In effect, then, the harmfulness of structural
errors can be conclusively presumed. Examples of structural
errors, in addition to total deprivation of the right to counsel,
see Gideon v. Wainwright, 372 U.S. 335 (1963), include failing to
give a constitutionally sufficient "reasonable doubt"
instruction, see Sullivan v. Louisiana, 113 S. Ct. 2078, 2081-82
(1993); permitting a trial to proceed before a biased
adjudicator, see Tumey v. Ohio, 273 U.S. 510, 535 (1927); and
discriminatorily excluding members of a defendant's race from a
grand jury, see Vasquez v. Hillery, 474 U.S. 254, 260-62 (1986),
or a petit jury, see Batson v. Kentucky, 476 U.S. 79, 100 (1986).
The "common thread" connecting the numerous examples of trial
28
error listed by Chief Justice Rehnquist in Fulminante is that all
such errors occur "during the presentation of the case to the
jury," and therefore may "be quantitatively assessed in the
context of [the] evidence presented" in order to gauge
harmlessness. Fulminante, 499 U.S. at 307-08.
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
29
and justly convicted. Forcing a state to retry its criminals
imposes social costs, including the expenditure of time and
resources for all concerned; the dispersal of witnesses and the
erosion of witnesses' memories; and the occurrence of sundry
other events that make obtaining a conviction more difficult on
retrial. See Brecht, 113 S. Ct. at 1720-21; cf. Barker v. Wingo,
407 U.S. 514, 522 n.16 (1972) (admonishing that the public has an
"interest in trying people accused of crime, rather than granting
them immunization because of legal error") (citation omitted).
For this reason, federal courts should not rush to overturn the
state-court conviction of a defendant who, although represented
by mistake-prone counsel, is unable to show how (if at all) the
lawyer's bevues undermined the fairness or reliability of the
trial's result.8
8At any rate, this is not the case in which to push the
envelope. Even if one were to accept the expansive view of
Cronic exemplified by Swanson, 943 F.2d 1070, the record here
simply does not justify a finding of a complete failure to
subject the prosecution's case to meaningful adversarial testing.
Indeed, in the unpublished rescript accompanying its summary
affirmance of Scarpa's conviction, the Massachusetts Appeals
Court did not even find Attorney Tacelli's conduct to be
"manifestly unreasonable." See Commonwealth v. Scarpa, No. 90-P-
694, at 2 (Mass. App. Ct. Mar. 7, 1991). While we do not
necessarily agree with this evaluation, see supra Part III(C), we
recognize that whatever his failings, Attorney Tacelli strove to
impress the jury with the gravity of the prosecution's burden.
For example, he focused in his summation on "the obligation of
the Government to prove their [sic] case beyond a reasonable
doubt"; reminded the jurors that, in deciding the case, they must
"have an abiding conviction"; and told them that they could
"choose to believe everything a witness says, disbelieve it, [or]
believe half of it." Although Attorney Tacelli weakened his
presentation by his later remarks, quoted ante, he still left it
up to the jury to decide the ultimate question of Scarpa's guilt.
Hence, we do not find in this record such a deliberate rolling
over as might warrant a finding of an absolute breakdown of the
30
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.
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,
adversarial process.
31
finally, even if a finding were made below, we would be obliged
to exercise de novo review, see supra p. 13. This combination of
factors persuades us to undertake the inquiry into actual
prejudice.
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
32
participated in both drug-trafficking transactions and who had
conducted more than 30 undercover operations during his career.
Eight other law officers assisted agent Desmond and stood ready
to testify in a substantially similar fashion if the need arose.
The risk of prejudice from Attorney Tacelli's ill-advised request
that the jury credit the government's witness was minimized by
the one-sidedness of the evidence; here, there was no
contradictory version of the critical events that a skeptical
jury otherwise might have chosen to believe. Similarly, any
facts tacitly conceded during Attorney Tacelli's misconceived
"conduit" argument were overwhelmingly supported by the proof; as
we have mentioned, the record contains not one scintilla of
exculpatory evidence. To this day, petitioner has failed to
identify any promising line of defense or to construct a
plausible scenario that, if exploited, might have given the jury
pause.
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
IV. CONCLUSION
We need go no further. Petitioner's habeas claim is
ripe for review, but, upon due consideration, the claim fails.
33
Hence, the judgment below must be reversed and the case remanded
to the district court for the entry of an appropriate order
clearing the way for the Commonwealth to resume custody of
petitioner.
Reversed and remanded.
Reversed and remanded.
34