Freeman, III v. Nolan ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2002
JAMES FREEMAN, III,
Petitioner, Appellant,
v.
DAVID NOLAN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, Federal
Public Defender Office, District of Massachusetts, on brief for
appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
and Maura Healey, Attorney General of Massachusetts, on brief for
appellee.
September 9, 2016
Per curiam. James Freeman, III appeals from the denial
of his petition for a writ of habeas corpus, brought pursuant to
28 U.S.C. § 2254 on March 14, 2011, in the United States District
Court for the District of Massachusetts. Freeman raised four
challenges to his 1999 convictions for first-degree murder and
other crimes of violence under Massachusetts state law, only three
of which he maintains on appeal.1
On October 16, 2012, a magistrate judge issued a report
and recommendation concluding that none of Freeman's claims
supported habeas relief. As to the three claims framed by Freeman,
the magistrate judge found as follows:
First, Freeman's challenge to the trial court's decision
to permit a potential defense witness to assert a Fifth Amendment
privilege not to testify failed on the merits, as the record did
not reflect an unreasonable application of clearly established
federal law. See id. § 2254(d)(1). And in any event, the record
indicated that any error was harmless.
Second, Freeman's challenge to the trial court's
dismissal of a deliberating juror likewise failed on the merits,
see id., while his corollary challenge to the court's jury
instruction regarding that dismissal was procedurally defaulted,
1 Claims not renewed in an appellate brief are waived.
See United States v. Dietz, 950 F.2d 50, 54 (1st Cir. 1991).
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even if properly before the habeas court, see Olszewski v. Spencer,
466 F.3d 47, 62 (1st Cir. 2006).
Third, Freeman's ineffective-assistance challenge,
predicated on his counsel's failure to seek exclusion of particular
evidence, was time-barred.2 See 28 U.S.C. § 2244(d)(1).
On July 13, 2015, the district judge issued an order
adopting the magistrate judge's report and recommendation, thereby
dismissing Freeman's petition. We agree that the petition must be
dismissed substantially for the reasons articulated below, without
adoption of the magistrate judge's opinion. See 1st Cir. R.
27.0(c). We add only that, even if all of Freeman's claims were
properly preserved for consideration on the merits, they would
still fail. See 28 U.S.C. § 2254(d)(1).
The order of the district court is affirmed.
2 Freeman's brief appears to have jettisoned the broader,
cumulative-ineffectiveness component of his challenge, which the
magistrate judge rejected on the merits. On appeal, "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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