Cruzado v. Alves ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1027
MARIO CRUZADO,
Petitioner, Appellant,
v.
NELSON ALVES, Superintendent, MCI Norfolk,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Barron, Chief Judge,
Thompson and Gelpí, Circuit Judges.
Emma Quinn-Judge, with whom Thomas Miller and Zalkind Duncan
& Bernstein LLP were on brief, for appellant.
Eva M. Badway, Assistant Attorney General of Massachusetts,
Criminal Bureau, with whom Andrea Joy Campbell, Attorney General
of Massachusetts, and Tyler Mayo, Legal Intern, were on brief, for
appellee.
December 22, 2023
BARRON, Chief Judge. Mario Cruzado ("Cruzado") appeals
from the dismissal of his federal petition for writ of habeas
corpus under 28 U.S.C. § 2254. The petition challenges his
Massachusetts-law conviction for first-degree murder. After
explaining the basis for our jurisdiction over this appeal, we
affirm.
I.
Cruzado's conviction arose out of the following
undisputed events. On November 26, 2010, Frederick Allen III's
("Allen") body was found in his apartment in Boston, Massachusetts.
Allen was a gay, African-American man. The cause of his death was
strangulation and blunt-force trauma to the head.
On December 7, 2010, investigators for the Boston Police
Department brought Cruzado to the police station to question him
about Allen's death. They showed Cruzado a picture of Allen, which
gave rise to the following exchange:
Investigator 1 (I1): Okay. I'm going to show
you a picture of a guy. See if you've ever
seen this guy before.
Cruzado (C): Who's that?
I1: I'm asking you. Isn't this -- I'm asking
you. Have you ever seen this guy before? Yes
or no?
C: Who . . . is that? Just a guy?
I1: No, listen to me. Listen to me. Have you
ever seen this guy before? Yes or no.
C: He looks like a nigger to me.
I1: Have you ever seen this guy before?
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C: He looks like a nigger to me.
I1: Have you ever seen this guy right here
before?
C: He looks like a nigger to me. No. He's
black.
I1: No. It's a yes or no question.
C: He's black.
I1: I understand.
Investigator 2: Have you ever seen him?
I1: Yes or no?
C: Where . . . I've ever seen him? I don't
know that mother fucker.
About three months later, in March 2011, Hilda Matiaz
("Matiaz"), a former girlfriend of Cruzado, told police that
Cruzado had called her on December 7, 2010, to tell her about an
incident in which he had met up with a friend, gone to the home of
an African-American man, and then showered and fallen asleep there.
Matiaz claimed that, in the account of the incident that Cruzado
gave her, he awoke to the man touching his testicles and reacted
by pushing the man away, putting the man in a headlock, and saying
that he was "not a faggot." She further claimed that Cruzado told
her that, when the man fell to the floor, Cruzado left the man's
home.
In 2012, Cruzado was charged in Suffolk County Superior
Court with first-degree murder for killing Allen. At the ensuing
trial, the jury heard an uncensored and unredacted recording of
the investigative interview that we have recounted above. The
recording was submitted into evidence to show Cruzado's animus
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toward African Americans and thus to show Cruzado's partial motive
for killing Allen.
The jury returned a guilty verdict, and Cruzado was
convicted of first-degree murder under Massachusetts law. He was
sentenced to a prison term of life.
Several years later, on July 1, 2016, Cruzado filed a
motion for a new trial. The motion claimed that Cruzado had
received ineffective assistance of counsel and thus that his
conviction violated his right to counsel under the Sixth Amendment
of the U.S. Constitution.
The state Superior Court judge denied the motion on March
30, 2017. Cruzado then filed a motion for reconsideration, which
was also denied.
Cruzado appealed both his conviction and the denial of
his motion for a new trial. He appealed his conviction based on,
among other grounds, a challenge to the state trial judge's
admission of the portion of the video recording of the interview
described above. Cruzado appealed his first-degree murder
conviction and the denial of his motion for a new trial directly
to the Massachusetts Supreme Judicial Court ("SJC") pursuant to
Mass. Gen. Laws ch. 278, § 33E. See Commonwealth v. Billingslea,
143 N.E.3d 425, 439 (Mass. 2020). The SJC consolidated his appeals
and denied them.
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With respect to the admission of the recording, the SJC
held that the state trial court did not abuse its discretion in
determining that the probative value of the evidence outweighed
its prejudicial effect because "[Massachusetts] is entitled to
elicit the fact that [Cruzado] could have been enraged, not just
because he was allegedly touched by [a] gay man, but he was
allegedly touched by an African-American man." Commonwealth v.
Cruzado, 103 N.E.3d 732, 737-38 (Mass. 2018). The SJC also stated
in a footnote that "[t]he defendant's argument that the admission
of the word 'nigger' as evidence of racial animus violated his due
process rights is unavailing, as the word came from his own mouth
several times." Id. at 738 n.2.
On November 13, 2018, Cruzado filed a pro se petition
for habeas relief pursuant to 28 U.S.C. § 2254 in the United States
District Court for the District of Massachusetts. The petition
claimed that: (1) Cruzado's right to due process was violated when
the state trial court allowed, over Cruzado's objection, admission
of portions of the recorded police interview described above in
which Cruzado used a racial slur in reference to the victim; and
(2) Cruzado's trial counsel rendered constitutionally ineffective
assistance by failing to file a motion to suppress the fruits of
the search and seizure of a cell phone.
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After appointing counsel for Cruzado, the District Court
considered and denied Cruzado's petition in a November 3, 2021,
memorandum and order. The District Court explained in the ruling
that it was "not inclined to issue a certificate of appealability"
but would "give Cruzado until December 3, 2021[,] to file a
memorandum, if he seeks to address the issue of whether a
certificate of appealability is warranted as to either or both
grounds in the Petition."
On November 30, 2021, Cruzado filed a motion for an
extension of time to December 10, 2021, to file a memorandum of
law in support of the issuance of a certificate of appealability
("COA"). The District Court granted Cruzado's motion for an
extension of time after noting that there was no objection to the
motion by the respondent, Nelson Alves ("Alves"), Superintendent
of Massachusetts Correctional Institution, Norfolk. Cruzado filed
his memorandum of law in support of issuance of a COA on December
9, 2021.
The District Court issued a COA on January 4, 2022, as
to the due-process-based claim only, and Cruzado filed a notice of
appeal on the same day. This Court then entered an order on March
21, 2022, that directed Cruzado either to move for voluntary
dismissal of the appeal pursuant to Federal Rule of Appellate
Procedure 42(b) or to show cause, in writing, why his appeal should
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not be dismissed as untimely. The show-cause order noted that
Cruzado filed a notice of appeal on January 4, 2022, from the
District Court's November 3, 2021, decision denying his petition
and that, under Federal Rule of Appellate Procedure 4(a)(1)(A), a
notice of appeal in a civil case must be filed within thirty days
of the judgment or order from which the appeal is taken.
Cruzado responded to the show-cause order on March 22,
2022. He stated in the response that he believed that no notice
of appeal could be filed until a COA had been issued. On December
16, 2022, this Court issued an order that stated that Cruzado's
appeal would be allowed to proceed without prejudice to further
consideration of the jurisdictional question by the panel assigned
to decide the merits of Cruzado's petition.
II.
We begin with the question of whether we have appellate
jurisdiction. That question turns on whether Cruzado filed a
timely notice of appeal. See 28 U.S.C. § 2253; Bowles v. Russell,
551 U.S. 205, 214 (2007). Federal Rule of Appellate Procedure 3
sets forth the requirements that a filing must satisfy to
constitute a notice of appeal, while Rule 4(a)(1)(A) provides that
the notice of appeal in a civil case must be filed "within 30 days
after entry of the judgment or order appealed from."
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On January 4, 2022, Cruzado filed a document that
constituted a notice of appeal under Rule 3. But that document
was not timely under Rule 4(a)(1)(A), because the District Court
denied Cruzado's petition on November 3, 2022.1 Thus, Cruzado asks
us to focus on a second filing that he made, which he contends was
not only filed within Rule's 4(a)(1)(A)'s thirty-day window but
also constituted a notice of appeal. The filing is the motion
that Cruzado made on November 30, 2022, in which he sought an
1 Cruzado argues in the alternative that the notice of appeal
that he filed on January 4, 2022, was timely because it was filed
within thirty days of the District Court's issuance of the COA.
He rests this contention on the ground that the order that denied
the petition for habeas corpus was not a "final order" because at
the time of the order the District Court had not ruled on whether
a COA should issue. He relies for this contention on Rule 11(a)
of the Rules Governing Section 2254 Cases, which states that "[t]he
district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant[,]" and our
Circuit's Local Rule 22.0(a), which states that
"[t]hese . . . rules require the district judge to rule on the
issuance of a certificate of appealability when a final order
issues." But there is no basis for concluding that an order
denying a petition for habeas corpus must be accompanied by such
a ruling on the COA to constitute a "final" order. See, e.g.,
Bell v. Mizell, 931 F.2d 444, 444-45 (7th Cir. 1991) (per curiam).
Cruzado does advance for the first time in his reply brief the
additional contention that the specific order in this case that
denied his petition was not "final" because of what that order
stated regarding the time that he would have in which to apply for
a COA. But we do not consider that contention here, because
Cruzado did not make it in his opening brief. See Sparkle Hill,
Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Our
precedent is clear: we do not consider arguments for reversing a
decision of a district court when the argument is not raised in a
party's opening brief.").
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extension of time to file a memorandum of law in support of an
application for a COA.
A.
Rule 3(c)(1) provides that a notice of appeal must name
the parties taking the appeal, the judgment or order from which
the appeal is being taken, and the court to which the appeal is
being made. At the same time, Rule 3(c)(7) states that "[a]n
appeal must not be dismissed for informality of form or title of
the notice of appeal."
In Thomas v. Morton Int'l, Inc., 916 F.2d 39, 40 (1st
Cir. 1990) (per curiam), we confronted a question about the kinds
of filings that constitute notices of appeal. The issue arose in
connection with a motion for an extension of time to file a notice
of appeal. Id.Notably, the plaintiff in Thomas had moved for an
extension of time to file his notice of appeal on the ground that
his counsel had learned of the granting of "Defendant's Motion to
Dismiss" only a week earlier. The motion for an extension of time
also stated that "[t]he [p]laintiff believes and avers that he has
a meritorious Appeal and that the Motion to Dismiss was allowed
without hearing." After the motion for an extension of time was
granted, the plaintiff then filed a notice of appeal outside of
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the extended time given. The question thus arose on appeal as to
whether a timely notice of appeal had been filed. Id.In assessing whether there was appellate jurisdiction,
we acknowledged in Thomas the proviso set forth in Rule 3(c)(7)
and explained that the "history behind this proviso indicates that
courts have, at times, interpreted the formal requirements of a
notice of appeal liberally, especially in cases of uncounseled
persons like pro se prisoners, where letters evidencing a desire
to appeal have been accepted as timely, informal notices of
appeal." 916 F.2d at 40. But we explained that the plaintiff who
was claiming that the motion for an extension of time to file a
notice of appeal itself constituted the notice of appeal "[was]
represented by counsel, and his motion for an extension of time in
no way purported to place the court and opposing party on notice
that he was at that time appealing, and that motion was meant
functionally to be the requisite notice of appeal." Id. We
further explained that "the motion was a request to the court for
additional time within which to file the required notice" before
concluding that, in such circumstances, "[t]o treat such a request
for extra time as the notice itself would be to render the notice
requirement meaningless." Id. Indeed, we noted, the appellant's
attorney "clearly recognized the difference between the two
documents when, out of time, he later filed a notice of appeal."
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Id. Thus, we rejected the plaintiff's contention that his motion
constituted a notice of appeal. Id.Two years after we decided Thomas, however, the Supreme
Court of the United States decided Smith v. Barry, 502 U.S. 244(1992). The Court explained there that Rule 3's requirements must
be "liberally construed" and that even when a filing is
"technically at variance with the letter of [Rule 3], a court may
nonetheless find that the litigant has complied with the rule if
the litigant's action is the functional equivalent of what the
rule requires." Id. at 248 (alteration in original) (quoting
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)).
Indeed, the Court went on to state in Smith that "[w]hile a notice
of appeal must specifically indicate the litigant's intent to seek
appellate review," it is "the notice afforded by [the] document,
not the litigant's motivation in filing it" that "determines the
document's sufficiency as a notice of appeal." Id. And, on that
basis, Smith held that an inmate's "informal brief" in response to
a briefing order could qualify as the functional equivalent of a
notice of appeal. Id. at 250.
Then, in the wake of Smith, we held in Campiti v.
Matesanz, 333 F.3d 317, 319-20 (1st Cir. 2003), that a motion for
appointment of counsel was the "functional equivalent" of a notice
of appeal. We did so even though the motion was not styled as a
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notice of appeal and merely requested that the district court take
a step -- the appointment of counsel -- that could facilitate the
later filing of such a notice. Id. at 320. Moreover, we did so
despite our ruling in Thomas, as we explained in Campiti that,
even though it was not clear if Thomas survived Smith, it was clear
under Smith that the specific motion for appointment of counsel at
issue in Campiti did all that Smith required for a filing to
constitute a notice of appeal. 333 F.3d at 320, 320 n.3.
As a result of our ruling in Campiti, Cruzado's motion
constitutes the functional equivalent of a notice of appeal if it
is materially indistinguishable from the motion in Campiti. We
therefore first turn our attention to Campiti before then turning
back to the filing at hand.
B.
The appellant in Campiti was Francesco Campiti
("Campiti"). Id. at 320. He was a pro se habeas petitioner who
had filed a document that indisputably constituted a notice of
appeal but that was untimely because he had not filed it within
the required window of time established by Federal Rule of
Appellate Procedure 4. Id. Campiti nonetheless claimed that he
had filed a timely notice of appeal based on either of two other
filings that he had made to the district court, as each of those
filings had been made within the required window of time. Id.- 12 -
The first filing was a motion for an extension of time
to file a notice of appeal. Id. The second filing was a motion
for appointment of counsel. Id.We did not address whether the extension-of-time motion
was the functional equivalent of a notice of appeal because we
held that Campiti's appointment-of-counsel motion was. Id. We
concluded that, even assuming without deciding that our ruling in
Thomas survived Smith, Smith required that we treat Campiti's
motion for appointment of counsel as a notice of appeal. See
Campiti, 333 F.3d at 320, 320 n.3.
We reasoned that, under Smith, a filing constitutes the
functional equivalent of a notice of appeal "so long as it gives
the pertinent information [required by Rule 3] and evinces an
intention to appeal." Campiti, 333 F.3d at 320. We further
explained that "[w]hether a particular type of document is the
functional equivalent of a notice of appeal may depend on its
content and surrounding circumstances rather than on any general
rule." Id. Then, after having articulated these principles, we
concluded that the filing at hand both evidenced an intention to
appeal and gave the pertinent information. Id.To support our conclusion, we noted that Campiti had
stated in his motion for appointment of counsel:
I am the petitioner in the above captioned
habeas corpus proceeding. My counsel, Vincent
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Bongiorni, Esq., has been allowed to withdraw
by the court. I am indigent and hereby request
that the court appoint counsel to represent me
for the purposes of filing a notice of appeal
and a request for a certificate of
appealability. A financial affidavit is
attached for the court's consideration.
Id. Based on this statement, we concluded that the motion "plainly
evidences an intention to appeal" because it "asks for counsel to
be appointed" for specific purposes and then goes on explain that
the request is being made "'for the purposes of filing a notice of
appeal' and for requesting a certificate of appealability." Id.And, with respect to whether the filing (which named the parties
in the caption) contained the "pertinent information," we
acknowledged that "[a]dmittedly, the document does not specify the
judgment appealed from or the appellate court[.]" Id. We
nonetheless concluded that "here, where no doubt exists as to
either, Rule 3 buttressed by latitude for a pro se litigant
forgives these 'informalit[ies] of form.'" Id. (alteration in
original) (quoting Fed. R. App. P. 3(c)(4)).
C.
How similar, then, is Cruzado's motion to Campiti's? At
first blush, it may not seem similar at all. Cruzado's motion
sought an extension of time to complete certain work, while
Campiti's sought appointment of counsel. Id. Cruzado's motion
also made no reference to filing a notice of appeal, while
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Campiti's specified that appointment of counsel was being sought
for the "purposes of" filing such a notice. Id.But, as mentioned above, Campiti makes clear that, after
Smith, the determination of whether a filing is the functional
equivalent of a notice to appeal "depend[s] on [the filing's]
content and surrounding circumstances rather than on any general
rule." Id. We must focus, therefore, on the "content and
surrounding circumstances," id., of the specific motion that
Cruzado filed. And, for the reasons we will next explain, we
conclude that this case-specific inquiry shows that, given our
ruling in Campiti, Cruzado's motion is the functional equivalent
of a notice to appeal. See Clark v. Cartledge, 829 F.3d 303, 306-
07 (4th Cir. 2016) (holding that a motion for an extension of time
to file an application for a COA was the functional equivalent of
a notice of appeal when the petitioner stated in his motion that
he had limited access to the prison-law library that "prevent[ed]
him from conducting the necessary legal research to properly file"
and stating that "to require more explicit language from a pro se
litigant would turn Smith's instruction that we liberally construe
Rule 3's requirements on its head" (alteration in original)).
1.
We recognize that Cruzado's motion on its face requested
only that the District Court take an action that, at most, would
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have facilitated the later filing of a notice of appeal. In that
respect, the motion would not appear to have "purported to place
the court and opposing party on notice that [Cruzado] was at that
time appealing," Thomas, 916 F.2d at 40 (emphasis added), in the
way that, say, an informal letter from a pro se prisoner requesting
an appeal would, or even the brief in Smith did. Rather, like
the motion in Thomas, Cruzado's motion would appear to have at
most purported to notify the opposing party and the court of an
intention to file a notice of appeal after the memorandum of law
in support of the motion for the issuance of the COA had been
completed. And, in that respect, Cruzado's motion would appear
to have been just as incapable of constituting a notice of appeal
as Thomas held the motion for an extension of time in that case
was.
The motion in Campiti, however, did not purport to give
opposing counsel or the court notice that Campiti was appealing
"at [the] time [of the]" motion itself, Thomas, 916 F.2d at 40,
any more than the motion in Thomas did. Rather, the motion in
Campiti expressly sought only to have counsel appointed for the
purpose of a notice of appeal thereafter being filed. 333 F.3d
at 320. Yet, Campiti, based on Smith's observation that a notice
of appeal "must specifically indicate the litigant's intent to
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seek appellate review," 502 U.S. at 248, held that the motion
Campiti filed did evidence his intent to appeal. 333 F.3d at 320.
Thus, what mattered in Campiti for purposes of
establishing the movant's intent to appeal was not whether -- as
Thomas held -- the motion made clear that no future filing would
be made that itself would be a notice of appeal. What mattered
was whether the motion at issue evidenced the movant's intent to
appeal, even if the filing on its face contemplated that the
notice of appeal itself would be filed only later. Campiti, 333
F.3d at 320.
Our ruling in Campiti, unlike Thomas, both post-dates
and relies on the Supreme Court's ruling in Smith. We thus do
not see how, given Campiti, we could hold that the mere fact that
Cruzado's motion sought action from the District Court that would
at most permit a later filing of a notice of appeal in and of
itself precludes that motion from qualifying as a notice of
appeal. As a result, we conclude that, to the extent that Thomas
would require us to hold otherwise, it cannot survive Campiti.
See United States v. Guerrero, 19 F.4th 547, 552-53 (1st Cir.
2021) (outlining the law-of-the-circuit doctrine).
Of course, even after Campiti, the "content and
surrounding circumstances" of a filing must make it evident that
the litigant who made the filing "inten[ds] to appeal." 333 F.3d
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at 320 (citing Smith, 502 U.S. at 244, 248-49). And a motion for
an extension of time to file a substantive memorandum in support
of a motion for issuance of a COA or to file a notice of appeal
does not necessarily evidence such an intent. Depending on the
"content and surrounding circumstances," such a motion, like a
motion for appointment of counsel, may do no more than manifest
that the movant needs additional time to decide whether to appeal.
Id. But we conclude that it is as evident from the "content and
surrounding circumstances" of Cruzado's specific motion that he
intended to appeal as it was from the "content and surrounding
circumstances" of Campiti's specific motion that Campiti intended
to do so. Id. And that is so even though Cruzado's motion made
no reference to a notice of appeal as such.
We base this conclusion on the fact that Cruzado's
motion stated in relevant part: "[C]ounsel for [Cruzado] states
that due to a busy trial schedule, she is unable to complete the
Memorandum [of Law in Support of Issuance of COA] within the time
allotted" and that she sought an extension of time "from December
3, 2021 to December 10, 2021." As this quoted text reveals, the
motion not only plainly sought the extension of time to "complete"
a memorandum of law in support of a COA but also sought the
extension to a date after the time for filing the notice of appeal
otherwise would have run. Those features of the motion are
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important for present purposes. If Cruzado did not intend to file
the notice of appeal along with the request for the COA, then he
would have had no reason to seek to extend the time to complete
the work needed to file a COA to a date after the thirty-day time
limit for filing the notice of appeal would have run. Therefore,
when we consider Cruzado's motion in context, it evidenced an
intention to appeal no less than the motion in Campiti did --
again, notwithstanding that Cruzado's motion, unlike Campiti's,
made no reference to a notice of appeal.
2.
All that said, Campiti makes clear that it is not enough
under Smith for a filing to evidence the movant's intent to appeal.
It must also contain the "pertinent information" specified in Rule
3 -- namely, the information that Rule 3 provides that a notice
of appeal must contain. Campiti, 333 F.3d at 320. As a result,
we now turn to the question of whether Cruzado's motion, like
Campiti's, contained the "pertinent information" required for a
filing to be deemed the functional equivalent of a notice of
appeal. Id. We conclude that Cruzado's motion did.
First, Cruzado's motion named the parties to the appeal
because it named Cruzado and Alves in its caption. Second,
although Cruzado's motion did not name the court to which Cruzado
intended to take his appeal, we agree that, consistent with
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Smith's instruction to liberally construe the requirements of Rule
3, "failures to meet this requirement are excused where there is
only one court to which the appeal can be taken." United States
v. Gooch, 842 F.3d 1274, 1277 (D.C. Cir. 2016); see Campiti, 333
F.3d at 320. And so, because there is no other appellate court
to which Cruzado could have wanted to appeal but ours, we conclude,
as we did in Campiti in which the appellate court also was not
named but was equally obvious, id., that Rule 3's requirement that
a notice of appeal must "name the court to which the appeal is
taken" poses no bar to our deeming the motion at hand the
functional equivalent of a notice of appeal.
That brings us to the requirement in Rule 3(c)(1)(B)
that the notice of appeal must "designate the judgment -- or the
appealable order -- from which the appeal is taken." Cruzado's
motion nowhere specifically stated that Cruzado intended to
challenge the District Court's November 3, 2021, memorandum and
order denying his habeas petition. But the motion did include
the District Court docket number on its face, and the motion for
an extension of time was the next filing on the docket after the
only substantive order by the District Court in this case --
which, as it happens, was the order denying Cruzado's habeas
petition -- and a companion order dismissing the case. Therefore,
we conclude, consistent with Campiti, that Cruzado has met the
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requirement that a notice of appeal must designate the order from
which the appeal is being taken, as Cruzado's motion manifested
an intent to appeal, and the only order from which that intended
appeal could have been taken is the November 3, 2021, memorandum
and order denying his habeas petition. See 333 F.3d at 320(finding that Rule 3's requirement that the judgment appealed from
be specified to have been satisfied, despite the request for
counsel not specifically naming the judgment, when no doubt
existed as to which judgment was being appealed); Becker v.
Montgomery, 532 U.S. 757, 767 (2001) ("[I]mperfections in noticing
an appeal should not be fatal where no genuine doubt exists about
who is appealing, from what judgment, to which appellate court.");
cf. Bailey v. Cain, 609 F.3d 763, 766-67 (5th Cir. 2010)
(concluding that a motion for an extension of time to file a COA
request could not be treated as a notice of appeal because it did
not identify the judgment or order being appealed in a case where
the District Court had entered four orders and a final judgment,
so it was not obvious which decision the petitioner sought to
challenge).
3.
There remains one last point to address: Campiti was a
pro se litigant while Cruzado, like the litigant in Thomas, is
not. Alves contends that this distinction is dispositive, such
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that "[Cruzado's] motion for an extension of time to file a
memorandum in support of a request for COA should not be construed
as the functional equivalent of a notice of appeal in the
particular circumstances of this case."
Alves is right that we have indicated that pro se
litigants should be given leniency when construing the
requirements of Rule 3. See Campiti, 333 F.3d at 320; Thomas,
916 F.2d at 40. Nonetheless, Rule 3(c)(7)'s requirement that a
notice of appeal not be rejected "for informality of form or
title" applies to all litigants and does not draw distinctions
between those represented by counsel and those who are not. See
Bell v. Mizell, 931 F.2d 444, 445 (7th Cir. 1991) (liberally
construing an application for a certificate of probable cause --
the pre-Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, equivalent of a
certificate of appealability -- as a notice of appeal
notwithstanding the fact that the petitioner was represented by
counsel); Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992);
Wells v. Ryker, 591 F.3d 562, 565 (7th Cir. 2010); Rodgers v. Wyo.
Att'y Gen., 205 F.3d 1201, 1205 (10th Cir. 2000) (concluding that
"the filings of counseled habeas petitioners should be given the
same liberal construction as those of pro se petitioners"),
overruled on other grounds, Moore v. Marr, 254 F.3d 1235, 1239
- 22 -
(10th Cir. 2001). Thus, we reject Alves's contention that the
fact that Cruzado was represented by counsel provides a basis for
our concluding that his motion is not the functional equivalent
of a notice of appeal even though Campiti's was. As the Seventh
Circuit has noted, however: "We do not condone the failure of
[appellant's] attorney to file a formal notice of appeal in timely
fashion -- and trust there will be no repetition of the oversight
by members of the bar of this [C]ourt[.]" Bell, 931 F.2d at 445.2
D.
For the reasons set forth above, we conclude that
Cruzado did file a timely notice of appeal.3 We do so, moreover,
2 We do note that here there was potential confusion about
when the final order from which the appeal could be taken had
entered. See supra note 1.
3 In order for us to have jurisdiction over an appeal from
the denial of a habeas petition, the petitioner must show not only
that a timely notice of appeal was filed pursuant to Federal Rule
of Appellate Procedure 3(a) but also that the district court has
issued a COA or that a COA must be issued by our Court. See 28
U.S.C. § 2253. Here, the District Court issued a COA on January
4, 2022, as to the due-process-based claim. See Campiti v.
Matesanz, 333 F.3d 317, 319 (1st Cir. 2003) (accepting the district
court's grant of a certificate of appealability, even though the
grant occurred after Campiti's filing of the motion for appointment
of counsel); cf. United States v. Rodríguez-Rosado, 909 F.3d 472,
477 (1st Cir. 2018) ("[The divestiture rule] provides that filing
a notice of appeal, for the most part, shifts 'jurisdiction' from
the district court to the court of appeals. . . . But, because the
judge-made divestiture rule isn't based on a statute, it's not a
hard-and-fast jurisdictional rule. . . . The rule, rather, is
rooted in concerns of judicial economy, crafted by courts to avoid
the confusion and inefficiency that would inevitably result if two
courts at the same time handled the same issues in the same
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even though the only filing that Cruzado timely made was the
filing on November 30, 2021, in which he sought merely an extension
of time to make another filing. This conclusion is required
because that motion for an extension of time constituted the
functional equivalent of a notice of appeal under Campiti, as it
both evidenced an intent to appeal and contained the "pertinent
information," 333 F.3d at 320, no less than the motion at issue
in Campiti did.
III.
We now turn to the merits of Cruzado's challenge to the
District Court's denial of his habeas petition. The challenge
concerns only his due-process-based claim for habeas relief.
Under AEDPA, Cruzado cannot show that he is entitled to
habeas relief based on his federal constitutional due-process
claim unless he can show that the SJC's ruling that rejected that
claim "was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States[.]" 28 U.S.C. § 2254(d)(1). The
District Court held that Cruzado failed to make that showing.
Reviewing de novo, see Teti v. Bender, 507 F.3d 50, 56 (1st Cir.
2007), we agree.
case. . . . Hence its application turns on concerns of efficiency
and isn't mandatory." (quoting Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982))).
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A.
In the state-court proceedings, the trial judge admitted
into evidence the unredacted recording of the police interview in
which Cruzado used the racial slur that provides the predicate
for his due-process-based claim. The trial judge did so pursuant
to a principle of state evidentiary law that states that
"[a]lthough the prosecution is not permitted to introduce evidence
of a defendant's bad character to show his or her 'propensity to
commit the crime charged, . . . such evidence may be admissible
if relevant for some other purpose,' including motive."
Commonwealth v. Cruzado, 103 N.E.3d 732, 737 (Mass. 2018) (quoting
Commonwealth v. Howard, 16 N.E.3d 1054, 1069 (Mass. 2014)). The
trial judge explained that the unredacted recording constituted
evidence of partial motive (i.e., racial animus). Id. at 737-38.
The SJC ruled that "the [trial] judge did not abuse her
discretion in determining that the probative value of the evidence
outweighed its prejudicial effect." Id. at 738. The SJC agreed
with the trial judge that the evidence of the unredacted police
interview did have special probative value in showing a potential
racial motive for Allen's killing, such that the recording of the
police interview could only be excluded if its special probative
value in showing such a motive was outweighed by its unduly
prejudicial effect. See id. at 737-38. But the SJC pointed out
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that to mitigate the prejudicial effect of the racial slur at
issue, the trial judge conducted an individual voir dire of
potential jurors to eliminate potential bias. Id. at 738.
Furthermore, the SJC noted that although the trial judge did not
provide an instruction to the jury instructing the jurors to limit
the use that they could make of the racial slur in their
deliberations, Cruzado did not request one, and "[t]here is no
requirement that the judge give limiting instructions sua sponte."
Id. (quoting Commonwealth v. Sullivan, 768 N.E.2d 529, 537 (Mass.
2002)). Nor, the SJC went on to state, "does the lack of a
limiting instruction necessarily create a substantial likelihood
of a miscarriage of justice." Id. (quoting Sullivan, 768 N.E.2d
at 537).
As we mentioned above, the SJC also included a footnote
at the end of its discussion regarding the admission of the
recorded police interview. That footnote stated in full: "The
defendant's argument that the admission of the word 'nigger' as
evidence of racial animus violated his due process rights is
unavailing, as the word came from his own mouth several times."
Id. at 738 n.2.
B.
Errors of state law, including the misapplication of
evidentiary rules, are "not enough to warrant federal habeas
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relief." Coningford v. Rhode Island, 640 F.3d 478, 484 n.4 (1st
Cir. 2011). But state-law evidentiary errors may be considered
as "part and parcel of the overarching constitutional claim" of a
denial of due process in some exceptional cases. Id. More
specifically, a "misbegotten evidentiary ruling that results in a
fundamentally unfair trial may violate due process and, thus,
ground federal habeas relief" when the state court's application
of state law is "so arbitrary or capricious as to constitute an
independent due process . . . violation." Id. at 484 (quoting
Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Here, Cruzado argues that Massachusetts law barred the
unredacted recording in which he used the racial slur from being
admitted into evidence. He then further contends that the SJC's
approval of the recording's admission resulted in a fundamentally
unfair trial that violated his federal due-process rights because
"serious evidentiary errors that result in a fundamentally unfair
trial can provide a basis for habeas relief, especially where such
errors infuse the trial with inflammatory prejudice." And,
finally, Cruzado argues that the SJC's decision was an
unreasonable application of clearly established federal due-
process law, given the nature of the "misbegotten evidentiary
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ruling" that he contends that the SJC blessed.4 Id. We conclude,
however, that there is no merit to this contention.
The SJC explained that although Massachusetts law
provides that "the prosecution is not permitted to introduce
evidence of a defendant's bad character to show his or her
propensity to commit the crime charged," "such evidence may be
admissible if relevant for some other purpose," including motive.
Cruzado, 103 N.E.3d at 737 (internal quotations omitted). The
SJC then concluded -- reasonably in our judgment -- that Cruzado's
use of the racial slur in the police interview held substantial
probative value in demonstrating whether the crime may have been
partially motived by racial animus, given that the prosecution's
theory of the case was that Cruzado could have been angered to
4 Alves argues in his briefing to us that Cruzado has waived
any argument on appeal that admission of the recording was an
"unreasonable application of[] clearly established Federal law,"
28 U.S.C. § 2254(d), because Cruzado only argued to the District
Court that the admission of the recording was "contrary to . . .
clearly established Federal law," id. We cannot agree with Alves.
Even if Cruzado argued to the District Court only that admission
of the recording was contrary to clearly established federal law,
the argument that admission of the recording was an unreasonable
application of clearly established federal law was directly ruled
on by the District Court. Indeed, Alves even conceded during oral
argument that the District Court addressed both the "unreasonable
application of" and "contrary to" prongs of the AEDPA standard,
id., and the District Court ruled on both grounds. And Alves also
conceded during oral argument that "[s]ince the [D]istrict [C]ourt
addressed and passed on the ["unreasonable application of" ground]
directly, [Cruzado] is free to address [that ground] so raised in
this appeal." Fid. Coop. Bank v. Nova Cas. Co., 726 F.3d 31, 39
(1st Cir. 2013).
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the point of murder not just because he was touched by a gay man
but because he was touched by a gay, African-American man.
Moreover, the SJC determined -- again, reasonably in
our view -- that admission of the recording to show motive was
not unduly prejudicial to Cruzado, both because the trial judge
conducted an individual voir dire of potential jurors to eliminate
potential bias, id. at 738; see also Commonwealth v. Alleyne, 54
N.E.3d 471, 479-80 (Mass. 2016) (discussing the use of voir dire
to mitigate prejudice); Commonwealth v. De La Cruz, 540 N.E.2d
168, 171 (Mass. 1989) ("[W]hen requested, we encourage individual
voir dire as to possible juror prejudice based on ethnic
considerations."), abrogated on other grounds by Commonwealth v.
Colon, 121 N.E.3d 1157, 1173-77 (Mass. 2016), and because Cruzado
did not request a limiting instruction to disregard or otherwise
not infer anything from Cruzado's use of the racial slur. In that
latter regard, the SJC reasonably explained both that "there is
no requirement that the [trial-court] judge give limiting
instructions sua sponte," Cruzado, 103 N.E.3d at 738 (quoting
Sullivan, 768 N.E.2d at 537), and that, in light of the probative
value of the evidence that was admitted, "the lack of a limiting
instruction [does not] necessarily create a substantial likelihood
of a miscarriage of justice," id. (quoting Sullivan, 768 N.E.2d
at 537). Thus, we see no basis for concluding that the SJC's
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determination that the trial judge did not violate Massachusetts
evidence law in admitting the recording represented a
misapplication of Massachusetts evidence law, let alone that the
SJC's determination represented such an unreasonable application
of Massachusetts evidence law that it gave rise to a due-process
violation.
Cruzado separately contends that the SJC's decision
unreasonably applied controlling Supreme Court precedent about
the right to due process because the SJC dismissed his due-process
claim in a single-sentence footnote that misstated the law. Here,
he contends "that the footnote wrongly asserted that due process
concerns never arise where the prejudicial evidence comes from a
defendant's own statements."
The footnote appears at the end of the SJC's discussion
regarding the admission of the recorded police interview. It
states: "The defendant's argument that the admission of the word
'nigger' as evidence of racial animus violated his due process
rights is unavailing, as the word came from his own mouth several
times." Id. at 738 n.2.
If read out of context, this footnote might seem to
suggest, as Cruzado contends, that the admission into evidence of
a defendant's own statements cannot ground a due-process claim in
any circumstance, when in fact the admission into evidence of a
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defendant's own statements violates due process under any number
of circumstances, including when they were made involuntary, see
United States v. Lawrence, 889 F.2d 1187, 1189 (1st Cir. 1989),
or in violation of Miranda v. Arizona, 384 U.S. 436 (1966). But,
when the discussion in the footnote is read in the broader context
of the SJC's opinion, it is evident that Cruzado's contention is
without merit. And that is so even if we were to assume that
Cruzado is arguing that, notwithstanding that the recording's
admission into evidence comported with Massachusetts state law,
its admission into evidence still violated his federal due-process
rights and the SJC unreasonably held otherwise.
As previously mentioned, the relevant footnote comes at
the end of the SJC's discussion of its reasons for upholding the
trial judge's exercise of discretion to allow the recording into
evidence. Cruzado, 103 N.E.3d at 738 n.2. In that discussion,
the SJC, as we have already concluded, reasonably applied state
law to conclude, among other things, that the evidence had special
probative value and was not unduly prejudicial to Cruzado, such
that the state trial-court judge did not abuse her discretion to
admit the recording. Id. at 736-38. That discussion of why the
trial judge did not abuse her discretion to admit the recording
and did not misapply state evidentiary law would also explain why
Cruzado's due-process argument is unavailing. Thus, because the
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relevant footnote is appended to that discussion, we read the
footnote to be saying only that the defendant's due-process
argument fails because, in addition to all the reasons stated in
the main text of the opinion, the racial slur "came from
[Cruzado's] own mouth several times." Id. at 738 n.2; see
Commonwealth v. Spencer, 987 N.E.2d 205, 217 (Mass. 2013) ("An
extrajudicial statement made by a party opponent is an exception
to the rule against the introduction of hearsay, and is admissible
unless subject to exclusion on other grounds."); see also Ayala
v. Alves, 85 F.4th 36, 58 (1st Cir. 2023) ("Our 'highly deferential
standard for evaluating state court rulings' requires that we read
the SJC's opinion in such a way as to give its choice of language
'the benefit of the doubt.'" (quoting Woodford v. Visciotti, 537
U.S. 19, 24 (2002))). Therefore, we conclude that there is no
merit to Cruzado's footnote-based argument for concluding that
the SJC unreasonably applied clearly established Supreme Court
precedent in rejecting his due-process claim.
IV.
For the foregoing reasons, we affirm the District
Court's rejection of Cruzado's petition for habeas relief. The
parties shall bear their own costs.
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