Graham v. Maloney , 121 F. App'x 400 ( 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Not for Publication in West's Federal Reporter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. 04-1887
DONALD S. GRAHAM,
Petitioner, Appellant,
v.
MICHAEL T. MALONEY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Donald S. Graham, Memorandum in Support of a Certificate of
Appealability pro se.
February 8, 2005
Per Curiam. Donald S. Graham, who was convicted after a
jury trial in Massachusetts state court of murder in the first
degree on the theory of extreme atrocity and cruelty, seeks a
certificate of appealability (COA) to appeal from the district
court's denial of his petition pursuant to 28 U.S.C. § 2254. He
seeks a COA to pursue the four claims raised in his habeas
petition:
1) ineffective assistance of counsel for
failure to move to dismiss his indictment on
the ground that his due process rights were
violated by the presentation of false evidence
to the grand jury;
2) ineffective assistance of counsel for
failure to preserve an objection to the
exclusion of evidence of the victim's criminal
record;
3) due process violation by the district
court's providing the jury with a tape-
recording of supplemental instructions,
without including a recording of the entire
instructions; and
4) due process violation by the district
court's admission into evidence of four cross-
bows seized from defendant's home which were
unrelated to the crime charged.
The district court denied the first two claims on the
merits and the other two on procedural grounds. As to the claims
which the district court denied on the merits, "petitioner must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claim debatable or wrong." Slack
v. McDaniel, 529 US. 473, 484 (2000). As to the claims which the
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district court denied on procedural grounds, without reaching the
merits of the underlying constitutional claims,
a COA should issue when the prisoner shows, at
least, that jurists of reason would find it
debatable whether the petition states a valid
claim of the denial of a constitutional right
and that jurists of reason would find it
debatable whether the district court was wrong
in its procedural ruling.
Id. Because petitioner has not satisfied the applicable COA
standard as to any of the four claims, we deny his request for a
COA.
I. Ineffective Assistance Claims
Because this was a capital case, the Massachusetts
Supreme Judicial Court applied the "miscarriage of justice
standard" set forth in G.L.c. 278 § 33E to Graham's ineffective
assistance claims. See Commonwealth v. Graham, 431 Mass. 282, 289
(2000). The SJC has held that the "miscarriage of justice"
standard under § 33E is more favorable to defendant than the
federal standard set forth in Strickland v. Washington, 466 U.S.
668, 688 (1984). See Commonwealth v. Wright, 411 Mass. 678, 682
(1992). Therefore, the SJC's determinations that Graham had not
met the "miscarriage of justice" standard included within them
determinations that he had not met the Strickland standard.
See McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002).
Graham's first ineffective assistance claim was based on
his attorney's failure to file a motion to dismiss the indictment
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on the ground that perjured testimony was presented to the grand
jury. He relied upon allegations that there were inconsistencies
between statements by a single witness which were presented and
those not presented to the grand jury. The SJC rejected the claim
on the reasoning that a motion to dismiss the indictment on such
basis would not have succeeded. Specifically, it found that "there
is nothing from which we could properly conclude that the
statements were false and deceptive and knowingly introduced to the
grand jury." Graham, 431 Mass. at 290. Graham's essential argument
in support of his COA request as to this claim is that the SJC's
finding in that regard was contrary to the evidence. The state
court's factual finding is subject to considerable deference,
however. On this record, reasonable jurists could not disagree
with the district court's determination that Graham did not meet
his burden of "rebutting the presumption of correctness by clear
and convincing evidence." 28 U.S.C. § 2254.
In his second ineffective assistance claim, Graham faults
his trial attorney for failing to lay a foundation for admission of
the evidence of the victim's criminal record, as he was invited to
do by the trial judge. The SJC ruled that there was no ineffective
assistance because the motion would not have succeeded, and the
district court found that the SJC's reasoning and conclusion was
not contrary to nor an unreasonable application of Strickland.
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In support of his COA request as to this claim,
petitioner appears to contend that a motion to admit the evidence
would have succeeded if his attorney had argued that such evidence
was admissible to impeach allegedly perjured testimony presented to
the grand jury (a statement by the victim's passenger that the
victim had no criminal record of violence). In support of that
argument, Graham relies upon United States v. Augurs, 427 U.S. 97(1976) and Mooney v. Holohan, 294 U.S. 103 (1935).
Reasonable jurists could not find debatable the district
court's conclusion that the SJC did not unreasonably apply
Strickland in light of the argument presented in this COA petition.
As discussed above, reasonable jurists could not find that Graham
met his burden of demonstrating by clear and convincing evidence
that the grand jury testimony was knowingly false and deceptive.
Moreover, petitioner has not claimed that the allegedly perjured
testimony presented to the grand jury was offered at trial.
Therefore, it could not have affected the jury's verdict, or
resulted in a due process violation under Agurs.
II. Claims Dismissed on Procedural Grounds
The district court ruled that Graham's claim regarding
the tape-recorded jury instructions was procedurally defaulted and
that he had failed to satisfy the cause and prejudice or
"fundamental miscarriage of justice" standard. In support of his
request for a COA, Graham contests the finding by the SJC that the
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objection which counsel made to the tape-recorded jury instructions
"was not adequate to alert [the trial judge] to the requirement
that the tape recordings of jury instructions contain the whole
instructions." Graham, 431 Mass. at 287 n.10. Based upon our
review of the portion of the trial transcript on which Graham
relies, reasonable jurists could not find it debatable whether
counsel failed to raise in a contemporary objection the issue he
raised in his habeas petition. Nor could reasonable jurists debate
the district court's determination that the cause and prejudice and
miscarriage of justice standards were not satisfied and that,
therefore, Graham had failed to overcome the bar to habeas review
that was created by his procedural default.
Graham's final habeas claim (of a due process violation
resulting from the admission of cross bows seized from his
apartment but unrelated to the charged crime) was denied by the
district court on the ground that it was an unexhausted claim. "A
claim of non-exhaustion presents a purely legal question,
engendering de novo review." RaShad, 300 F.3d at 41. Petitioner
bears the burden of proving that he exhausted the remedies
available to him in state court by presenting this federal
constitutional claim in his appeal to the SJC. See Barresi v.
Maloney, 296 F.3d 48, 51 (1st Cir. 2002).
Having reviewed Graham's SJC brief, we conclude that
reasonable jurists could not find debatable the district court's
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conclusion that petitioner did not meet his burden of demonstrating
that he had exhausted state remedies with respect to this claim.
That the brief cited only Massachusetts precedent to support his
claim regarding the cross-bows is not necessarily fatal to his
attempt to establish exhaustion. See id. at 54. However, the state
cases cited by Graham do not address the federal due process issue
that he has raised in his habeas petition. Therefore, reasonable
jurists could not find it debatable that the citations to state
cases were insufficient to establish the requisite probability that
a reasonable jurist would have been alerted to the existence of the
federal due process claim.
Graham's request for a COA is denied and the appeal is
terminated.
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