Foxworth v. ST. AMAND

United States Court of Appeals
For the First Circuit
No. 08-1751
ROBERT FOXWORTH,
Petitioner, Appellee,
v.
PETER ST. AMAND,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Siler,* Circuit Judges.
Susanne G. Reardon, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Martha Coakely, Attorney General, was
on brief, for appellant
John M. Thompson, with whom Linda J. Thompson and Thompson &
Thompson, P.C. were on brief, for appellee.
June 29, 2009
_______________
*
Of the Sixth Circuit, sitting by designation.
SELYA, Circuit Judge. This habeas appeal presents
several challenging questions. Two of these are particularly
intriguing. The first involves the effect of an eyewitness's
expression of less than complete certitude about a crucial out-of-
court identification that he previously made. The second is a
multi-part question. The initial part deals with the cut-off point
for determining what constitutes "clearly established Federal law"
within the purview of 28 U.S.C. § 2254(d)(1), a provision of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214. The next part of that question
concerns the selection of the relevant precedent from the Supreme
Court's evolving Confrontation Clause jurisprudence — a question
made relevant by the Supreme Court's decision, in 1998, of Gray v.
Maryland, 523 U.S. 185 (1998). Because Gray has not been made
retroactive to cases under collateral review, this case turns on
the applicability vel non of that precedent to the redacted
statement of a nontestifying codefendant under circumstances in
which his objecting codefendant's name has been replaced with a
cryptic designation ("Mr. X"). As matters turn out, the answer to
this part of the inquiry depends on the answer to the initial part.
These questions arise in the context of a state-court
conviction for second-degree murder. In the proceedings below the
district court, acting under habeas jurisdiction, granted relief
because it deemed the evidence insufficient to support the
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conviction and, secondarily, because it deemed the admission of the
nontestifying codefendant's statement violative of the petitioner's
rights under the Confrontation Clause of the Sixth Amendment. See
Foxworth v. Massachusetts (Foxworth III), No. 03-11844, slip op. at
27 (D. Mass. May 14, 2008) (unpublished); Foxworth v. Maloney
(Foxworth I), No. 03-11844, slip op. at 19 (D. Mass. Aug. 17, 2006)
(unpublished).
After a lengthy exegesis through this maze of problems,
we reverse in part, retain jurisdiction, and certify a critical
question of state law to the Massachusetts Supreme Judicial Court
(SJC).
I. BACKGROUND
Because this appeal involves a challenge to evidentiary
sufficiency, we rehearse the facts in the light most compatible
with the verdict rendered by the state-court jury, consistent with
record support. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In a wrinkle peculiar to the exercise of federal habeas
jurisdiction we grant a presumption of correctness to the state
courts' factual determinations. See 28 U.S.C. § 2254(e)(1).
Roxbury is an enclave in Boston, Massachusetts. On May
23, 1991, a group of men went to the Roxbury home of Kenneth McLean
bent on buying drugs. After they arrived, matters got out of hand.
Apparently, McLean was beaten. He then broke free and ran. At
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least one of the men chased McLean and shot him as he fled.
McLean's wounds proved fatal.
In July of 1991, a Suffolk County grand jury indicted
petitioner-appellee Robert Foxworth for the murder. By way of a
superceding indictment, the grand jury also charged two other men,
Troy Logan and Ronald Christian, with the murder. As the case
unfolded, many of the facts were undisputed; the shooter's
identity, however, was hotly contested. This factual dispute
became the focal point of the ensuing trial.
The prosecution's case against the petitioner hinged on
an eyewitness identification by Derek Hobson. The petitioner filed
a pretrial motion to suppress the identification testimony. His
motion was denied.
At trial, Hobson testified that, at approximately 6:00
p.m. on May 23, he was walking down Brookford Street in Roxbury.
He observed a man run out of a building located at 5 Brookford
Street. The man yelled: "Those people are crazy." Then, another
man (later identified as Kenneth McLean) exited the premises and
ran pell-mell down the street. He had blood on his mouth and tape
on one arm.
Not heroically inclined, Hobson hid behind a car parked
directly across from 5 Brookford Street. From that vantage point,
he observed another man emerge from the building with a gun. That
man fired three or four shots at McLean, who collapsed.
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Hobson saw the shooter for at least forty seconds from a
distance of approximately fifteen to twenty feet. When the police
arrived, he described the shooter as a medium-complected black
male, six feet or six feet one inch in height, weighing one hundred
forty pounds, and sporting a one inch "tail" that protruded from
the back of his head. At trial, Hobson added that the shooter was
wearing a black baseball cap and that the "tail" stuck out from
under the back of the cap.
On June 17, Detective Daniel Flynn, the officer in charge
of the investigation, visited Hobson and presented him with a photo
array. The array contained twenty photographs, including
photographs of all three men eventually accused of the murder.
Hobson selected the petitioner's photograph from the array,
identifying him as the shooter. Flynn testified that Hobson acted
"without hesitation."
Later that month, the police showed Hobson another photo
array. Once more, Hobson selected the petitioner's photograph from
the array and identified him as the shooter.
At trial, Hobson did not make a live in-court
identification but confirmed that the petitioner was the person he
had identified from the photo arrays. On cross-examination, he
acknowledged that he had not seen the shooter head-on but had "seen
the whole like side of his face." He also admitted that he had
based his selections from the photo arrays in part on the fact that
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the man he remembered had a "tail" (and the petitioner was the only
person with a "tail" whose picture was displayed). When pressed by
defense counsel to gauge his confidence in the identification,
Hobson stated that he was "eighty percent sure."
Anthony McAfee, who was strolling along with Hobson
immediately before the shooting, testified that he first observed
a man running from the house, yelling "[t]hose people are crazy."
Then, McLean scampered from the building. Two other men followed.
One of that pair got into a car parked at the curb on Brookford
Street and passed a black object to the other man. The latter
proceeded to fire five or six shots at McLean. When Flynn
presented McAfee with the same photo array that he initially had
presented to Hobson, McAfee identified Logan as the man who handed
over the black object. McAfee could not identify the shooter.
The petitioner had filed a pretrial motion to sever his
trial from that of his codefendants. He premised that motion on
the potential prejudice inherent in a statement made by Logan to
the police. The motion was unsuccessful, and the statement was
prominently featured at the joint trial.
Detective Flynn read the statement into evidence over the
petitioner's timely objection. In an effort to avert the feared
prejudice, the trial justice ordered redaction of the statement.
In its redacted form, the petitioner's name was replaced with the
pseudonym "Mr. X" and the statement was altered so that, after the
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first reference to "Mr. X," it appeared (falsely) that Logan had
stated: "Cause that's how I know him by. I don't know his real
name." The trial justice also admitted a copy of the redacted
statement into evidence.
In the statement, Logan related that, on the evening in
question, he met two men named "Tea Lover" and "Mr. X" at a
sandwich shop. "Tea Lover" and Logan resolved to go to McLean's
apartment to buy cocaine. "Mr. X" accompanied them because McLean
owed him money as a result of a prior sale of "bad" cocaine.
Shortly after the group's arrival, "Mr. X" and McLean argued. "Mr.
X" left the premises. Logan opted to do likewise. As he made his
way downstairs, "Mr. X" was coming back upstairs. Logan noticed
that "Mr. X" had a gun tucked into his waistband. Logan continued
his descent and, as he was getting into a cab, heard shots.
The statement indicated that Logan had identified "Mr. X"
from a photo array. Flynn testified that the photo array was the
same one that had been employed earlier in the investigation. On
cross-examination by Christian's counsel, Flynn revealed that the
designation "Mr. X" did not refer to Christian. Moreover, it was
a replacement for the name Logan actually had used in his
statement.
The prosecution offered the redacted statement as
evidence only against Logan. The trial justice gave a limiting
instruction both after the reading of the redacted statement and
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before jury deliberations began. The gist of the instruction was
twofold: that the statement could only be considered against Logan
(who was being tried on a "joint venture" theory) and that the jury
should not speculate about who "Mr. X" might be.
At the close of the prosecution's case, each of the three
defendants moved for a required finding of not guilty. The trial
justice granted Christian's motion in its entirety and granted the
other defendants' motions with respect to the charge of first-
degree murder. These rulings preserved the second-degree murder
charges against the petitioner and Logan. On March 31, 1992, the
jury convicted the petitioner and acquitted Logan. In due course,
the trial justice sentenced the petitioner to life imprisonment.
The petitioner filed a new trial motion under Mass. R.
Crim. P. 30. The motion alleged a Bruton violation based on
admission of Logan's statement. It also cited purported newly
discovered evidence, alleged prosecutorial misconduct, and
challenged the photo spread used to identify the petitioner. The
trial justice denied the motion on August 8, 1994. The
petitioner's timely direct appeal to the Massachusetts Appeals
Court from the conviction, which advanced similar claims, was
consolidated with his subsequent appeal from the denial of the
motion. On October 21, 1996, the Appeals Court, in an unpublished
decision, affirmed both the conviction and the denial of the new
trial motion.
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The petitioner had twenty days in which to seek further
review by the SJC by filing an application for leave to obtain
further appellate review (ALOFAR). Mass. R. App. P. 27.1(a). The
petitioner made no such filing within the prescribed period.
Ordinarily, then, the conviction would have become final
in 1996. Here, however, the petitioner some four years later (on
October 25, 2000) filed a pro se ALOFAR in the SJC seeking further
review of the Appeals Court decision. The pro se ALOFAR included
a "motion to file late application for further appellate review,"
which asked the SJC to excuse his untimely filing on two grounds.
The pro se ALOFAR argued that the petitioner's Sixth
Amendment rights under Bruton had been violated by the introduction
of Logan's statement but made no mention of Gray (which had been
decided on March 9, 1998). The ALOFAR also raised several other
challenges to the 1996 Appeals Court ruling, none of which are
material here.
The SJC did not rule either on the ALOFAR or on the
petitioner's motion to file out of time because, on November 15,
2000, the petitioner asked the SJC to stay consideration of his
ALOFAR pending the resolution of a second new trial motion. The
SJC granted the petitioner's request for a stay on February 1,
2001, and ordered petitioner to file regular status reports on the
progress of his second new trial motion.
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The petitioner filed his second new trial motion before
the trial court on December 11, 2000. That motion, filed pursuant
to Mass. R. Crim. P. 30, attacked the conviction on four grounds.
First, it claimed, based on a later affidavit by McAfee, that the
prosecutor knowingly and intentionally used perjured testimony and
allowed false evidence to go uncorrected. Second, it claimed that
the petitioner's previous counsel provided ineffective assistance
because he failed to submit affidavits anent newly discovered
evidence. Third, it claimed that the trial justice erred in not
instructing the jury on manslaughter. Fourth, it claimed that the
judge gave an incorrect instruction as to malice.
After the trial court denied the second new trial motion,
the Appeals Court, on April 17, 2002, affirmed the decision,
holding that all the claims in the second new trial motion were
either previously decided or waived.
The petitioner then moved to consolidate his appeal from
the denial of the second new trial motion with his previous ALOFAR.
The SJC appointed counsel on May 22, 2002, and on May 28 granted
the petitioner's motion to extend the time for filing to June 24,
2002. On June 27, 2002, counsel informed the SJC that an amended
ALOFAR would be filed.
On July 22, 2002, the petitioner filed a "motion to file
an amended FAR application late," which was allowed by a docket
notation of the same day, without comment. It appears from the
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record that the allowance of this motion related to the
petitioner's non-observance of the June 24 deadline for filing
briefs. It is unclear whether that order may have applied to the
petitioner's failure, under Mass. R. App. P. 27.1(a), to file and
ALOFAR within twenty days of either the October 21, 1996 Appeals
Court decision affirming the conviction and the denial of the first
new trial motion or the April 17, 2002 Appeals Court decision
affirming the denial of the second new trial motion.
Also on July 22, the petitioner, through appointed
counsel, filed his amended ALOFAR. The July 22 amended ALOFAR was
based primarily on the Bruton claim; here, for the first time, the
petitioner raised Gray as an explicit basis for his claim. The
amended ALOFAR also raised challenges to the photo array and to the
sufficiency of the evidence. Although the amended ALOFAR was
consolidated with the appeal from the denial of the second new
trial motion, it did not raise any challenges to the Appeals
Court's 2002 decision.
On September 6, 2002, the SJC denied the ALOFAR without
comment.
The petitioner repaired to the federal district court in
search of a writ of habeas corpus. See 28 U.S.C. §§ 2244-2254.
Naming an appropriate correctional official as the respondent, his
habeas petition raised three fully exhausted claims: (i) that his
conviction violated due process because the evidence was
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constitutionally insufficient under the rule of Jackson, 443 U.S.
at 319; (ii) that the use of an unreliable eyewitness
identification violated due process, see Neil v. Biggers, 409 U.S.
188, 198 (1972); and (iii) that the admission at trial of Logan's
incriminating statement violated his Sixth Amendment rights as
announced in Bruton v. United States, 391 U.S. 123, 126 (1968), and
elaborated in Gray.
On August 17, 2006, the district court ruled in favor of
the petitioner on his Bruton claim. The court regarded the two-
part inference that "Mr. X" was the shooter and that the petitioner
was "Mr. X" as obvious; therefore, "[t]he statement — given by a
codefendant with powerful motive to incriminate petitioner, and
unchallenged by cross-examination — violated petitioner's Sixth
Amendment rights." Foxworth I, slip op. at 19. The district court
deemed consideration of the petitioner's two remaining claims
unnecessary, vacated the conviction, and ordered the Commonwealth
either to retry or to release the petitioner. Id. at 23.
The respondent appealed. We remanded the case to the
district court to address the sufficiency of the evidence claim,
noting that a finding in the petitioner's favor on that claim would
preclude a retrial. See Foxworth v. Maloney (Foxworth II), 515 F.3d
1, 4 (1st Cir. 2008).
The district court sensibly ordered the petitioner's
release on bail and proceeded to address the unadjudicated claims.
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With respect to the due process/eyewitness identification claim,
the court determined that although the identification procedure was
suggestive to a degree, the state court's conclusion that any
suggestiveness was outweighed by Hobson's ability to observe at the
time of the incident was not objectively unreasonable. Foxworth
III, slip op. at 17. Thus, the admission of Hobson's testimony did
not transgress due process. Id. As to the insufficiency claim,
the court concluded that "it was objectively unreasonable for the
[Massachusetts] Appeals Court to do no more than cite the general
standard when, even after crediting the entire testimony of the
witness, there was still significant doubt in his identification of
Foxworth." Id. at 26 (emphasis in original). On that basis, the
court set aside the conviction and ordered the petitioner's
release. Id. at 28.
This timely appeal ensued. In it, the respondent seeks
to test the mettle of the petitioner's insufficiency and Sixth
Amendment claims. The due process/eyewitness identification ruling
has not been challenged.
II. ANALYSIS
We begin our substantive discussion by laying out the
ground rules for federal habeas review of state-court convictions.
We then address sequentially the two constitutional claims that are
before us.
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A. Standards of Review.
Federal habeas review of a state-court conviction is
governed by the AEDPA, which permits federal courts to grant habeas
relief after a final state-court adjudication of a federal
constitutional claim if that adjudication can be shown to be
"contrary to," or to have involved, "an unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States" or in the alternative, to have been
"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceedings." 28 U.S.C.
§ 2254(d). In administering these standards, the state court's
factual findings are presumed to be correct, and they can be
overcome only by clear and convincing evidence. See id.§ 2254(e)(1); see also Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir.
2002).
A state-court decision is "contrary to" clearly
established Federal law if "the state court arrives at a conclusion
opposite from that reached by the U.S. Supreme Court on a question
of law, or if the state court decides the case differently than the
U.S. Supreme Court has on a set of materially indistinguishable
facts." Sleeper v. Spencer, 510 F.3d 32, 37-38 (1st Cir. 2007)
(citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). This is an
"unreasonable application" case; no colorable arguments are made
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suggesting that the relevant state-court rulings are directly
"contrary to" clearly established Supreme Court precedent.
An unreasonable application of clearly established
Federal law occurs when
the state court correctly identifies the
governing legal principles, but (i) applies
those principles to the facts of the case in
an objectively unreasonable manner; (ii)
unreasonably extends clearly established legal
principles to a new context where they should
not apply; or (iii) unreasonably refuses to
extend established principles to a new context
where they should apply.
Id. at 38. "The habeas question of whether the state court
decision is objectively unreasonable is layered on top of the
underlying standard governing the constitutional right asserted."
Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). So viewed, the
state court's decision is not vulnerable unless it evinces some
increment of incorrectness beyond mere error. McCambridge v. Hall,
303 F.3d 24, 36 (1st Cir. 2002) (en banc).
In probing whether a state-court decision is an
unreasonable application of clearly established Federal law, the
nature of the legal rule — that is, the extent to which the rule is
specific rather than general — makes a substantial difference. If
the legal rule is specific, the range of reasonable judgments is
correspondingly narrow. Conversely, if the legal rule is general,
the range of reasonable judgments is likely to be broad.
Yarborough v. Alvardo, 541 U.S. 652, 664 (2004). In other words,
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"[t]he more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations." Id.Even if a state-court decision is determined to involve
an unreasonable application of clearly established Federal law,
habeas relief will not follow automatically. The error must be
shown to have "had a substantial and injurious effect or influence
in determining the jury's verdict." Delaney v. Bartee, 522 F.3d
100, 105 (1st Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S.
619, 631 (1993)).
Finally, we note that these ground rules apply equally to
the district court and to the court of appeals alike.
Consequently, we review a district court's grant or denial of a
state prisoner's habeas corpus petition de novo. Lynch v. Ficco,
438 F.3d 35, 44 (1st Cir. 2006). With these background rules in
place, we turn next to the sufficiency of the evidence.
B. Due Process: Sufficiency of the Evidence.
In criminal cases, the constitutional benchmark for
evidentiary sufficiency is familiar: "If the evidence presented,
taken in the light most flattering to the prosecution, together
with all reasonable inferences favorable to it, permits a rational
jury to find each essential element of the crime charged beyond a
reasonable doubt, then the evidence is legally sufficient." United
States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995) (citing Jackson,
443 U.S. at 319). Due largely to the expansiveness of this
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standard, a sufficiency analysis requires a degree of intellectual
rigor. In particular, a reviewing court must refrain from giving
credence to "evidentiary interpretations and illations that are
unreasonable, insupportable, or overly speculative." United States
v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995).
In exercising federal habeas jurisdiction we typically
look to the rationale of the intermediate appellate court where, as
here, the state's highest court has summarily denied further
appellate review. See, e.g., Niland v. Hall, 280 F.3d 6, 11-12
(1st Cir. 2002). In this instance, the measuring stick that the
Massachusetts Appeals Court applied to the sufficiency analysis
meets federal constitutional criteria. Although that court relied
on a state case, Commonwealth v. Latimore, 393 N.E.2d 370 (Mass.
1979), in reaching a conclusion about evidentiary sufficiency, a
state-court adjudication of an issue framed in terms of state law
is nonetheless entitled to deference under section 2254(d)(1) as
long as the state and federal issues are for all practical purposes
synonymous and the state standard is at least as protective of the
defendant's rights as its federal counterpart. See McCambridge,
303 F.3d at 35. Since the sufficiency issue is essentially the
same under both federal and state law and the Latimore court
transplanted the appropriate federal constitutional standard into
the jurisprudence of Massachusetts, see Latimore, 393 N.E.2d at 374
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(citing Jackson, 443 U.S. at 318-19), we can confidently apply the
AEDPA standard to this issue.
The Appeals Court concluded that:
The judge properly denied Foxworth's
motion for a required finding of not guilty,
on the basis, if no other, of the eyewitness
testimony identifying Foxworth as the person
who shot the fleeing McLean several times and
then escaped in a car — testimony that was
corroborated in all respects, except the
identification of Foxworth as the shooter, by
a second eyewitness. That evidence, taken in
the light most favorable to the Commonwealth
(a premise that Foxworth fails to recognize),
was sufficient for a rational jury to find
beyond a reasonable doubt that Foxworth was a
principal actor in the second degree murder,
with malice inferable from the intentional use
of a deadly weapon. Foxworth's presentation
of an alibi defense did not serve to take the
issue from the jury.
The question, then, is whether this determination constitutes an
unreasonable application of the Jackson standard.
The petitioner asserts that the only evidence of his
involvement was the testimony of a single eyewitness and that this
testimony lacked the force necessary to prove guilt beyond a
reasonable doubt. The district court agreed; it found multiple
weaknesses in Hobson's testimony, including discrepancies between
his account and McAfee's, inconsistencies in his description of the
shooter, the lack of an in-court identification, flaws in the photo
array, and the witness's admission that he was less than certain
about the identification. See Foxworth III, slip op. at 22. The
respondent assigns error to this ruling.
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The question is close, and the district court is correct
that Hobson's testimony is the only evidence that directly
implicates the petitioner as the shooter.1 Nevertheless, a
criminal conviction can rest on the testimony of a single
eyewitness. Even if the eyewitness's testimony is uncorroborated
and comes from an individual of dubious veracity, it can suffice to
ground a conviction. See, e.g., Hayes v. Battaglia, 403 F.3d 935,
938 (7th Cir. 2005). Hobson's first-hand testimony was neither
inherently improbable nor materially undermined by any other
unimpeachable proof. It placed the petitioner at the scene of the
murder and identified him as the shooter. No more was exigible to
satisfy the Jackson standard.
That is not to say that a rational jury had to accept the
eyewitness identification. Hobson was exposed to a withering
cross-examination, which disclosed a number of weaknesses in his
testimony. It is well-established, though, that determining a
witness's credibility, even in the face of a furious attack, is a
function that falls squarely within the province of the jury. See,
e.g., United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008);
Ramonez v. Berghuis, 490 F.3d 482, 490 (6th Cir. 2007); United
States v. Calderón, 77 F.3d 6, 10 (1st Cir. 1996).
1
Although Logan's statement also implicated the petitioner,
see infra Part II(C)(2), the statement was admitted solely against
Logan.
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In defending the district court's sufficiency ruling, the
petitioner notes that some of the details to which Hobson testified
did not match his original statements to the police. In a similar
vein, he points out that Hobson's testimony was not entirely
congruent with McAfee's testimony. But such discrepancies do not
as a matter of law render a witness's testimony unworthy of belief.
Rather, they are for the jury to sort out and weigh. "The actual
resolution of the conflicting evidence, the credibility of
witnesses, and the plausibility of competing explanations is
exactly the task to be performed by a rational jury, considering a
case presented by competent counsel on both sides." Matthews v.
Abramajtys, 319 F.3d 780, 790 (6th Cir. 2003). It is rare that a
key witness survives a murder trial unscathed, and the jurors in
this case were free to credit Hobson's version of the events or
not, as they saw fit.
The absence of an in-court identification does not tip
the sufficiency scales. Extrajudicial witness identifications are
routinely used as substantive evidence of guilt. See, e.g.,
Samuels v. Mann, 13 F.3d 522, 527 (2d Cir. 1993); see also Fed. R.
Evid. 801(d)(1)(C) (excluding prior out-of-court identifications
from the definition of hearsay). There is no requirement, either
in the Constitution or in the usual rules that apply to the
admission of evidence, that a witness who makes an extrajudicial
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identification must repeat the identification in the courtroom.2
Consequently, the fact that Hobson never identified the petitioner
at trial does not alter the constitutional calculus.
The petitioner offers a closely related argument. He
maintains that Hobson's out-of-court identification was itself so
unreliable that a rational jury could not rely on it. In this
regard, he stresses that the district court characterized the photo
array as suggestive. See Foxworth III, slip op. at 16.
The bottom line, however, is that the district court
concluded that it was not objectively unreasonable for the state
court to find enough indicia of reliability to allow the
introduction of the identification testimony into evidence without
offending any constitutional safeguard. See id. at 16-17. The
petitioner has not challenged that conclusion on appeal.
Moreover, the alleged flaws in the photo array were fully
vetted at the trial; the cross-examiner dwelt on them and argued
the point vociferously to the jury. He also exploited the
testimony about viewing angles (i.e., that the view Hobson had of
the petitioner was in profile). Despite the force of this multi-
pronged attack, the jury credited Hobson's identification. On
2
This paradigm makes good sense: it is designed to facilitate
the introduction of eyewitness identifications made "when memory
was fresher and there had been less opportunity for influence to be
exerted upon [the witness]." United States v. Lewis, 565 F.2d
1248, 1251 (2d Cir. 1977) (quoting United States v. Marchand, 564
F.2d 983, 996 (2d Cir. 1977)).
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collateral review, we cannot disturb its judgment. Ramonez, 490
F.3d at 490.
Finally, the district court gave significant weight to
the fact that Hobson admitted that he was only "eighty percent
sure" of his identification. The court reasoned that even if the
testimony was fully credited by the jury, it carried with it a
significant measure of doubt and, therefore, "it would be
irrational to find that fact beyond a reasonable doubt [when] the
eyewitness himself was not sure of the fact . . . ." Foxworth III,
slip op. at 24-25. On appeal, the respondent savages this analysis
while the petitioner embraces it.
Although the district court's reasoning has a patina of
plausibility, it does not withstand close scrutiny. A prior
identification is not stripped of probative force merely because
the witness confesses that he harbors some doubt about it. Cf.
Samuels, 13 F.3d at 527 (holding that a jury could credit a
witness's earlier identification of the defendant over the
witness's in-court identification of a different person). The
witness's certainty vel non is properly viewed as a factor that
must be evaluated by the jury as the trier of the facts — but a
jury is no more bound to find reasonable doubt based on an
eyewitness's profession that he is "eighty percent certain" than it
would be bound to accept the identification if the witness
professed to being "one hundred percent certain."
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This conclusion is rooted in human experience and common
sense. Self-esteem is a wild card. Some witnesses may be over-
confident about their powers of perception or recall; others may be
diffident or overly cautious. Moreover, "some witnesses verbalize
their assurances of being correct with more positiveness than
others." United States v. Smith, 563 F.2d 1361, 1363 (9th Cir.
1977). And, finally, there is no necessary correlation between a
witness's self-confidence and the correctness of his
identification. In the last analysis, it is up to the jury to
gauge the accuracy of an identification, factoring in any
protestations of assurance or self-doubt.3
In this case, there is no principled way to label the
jury's choice as irrational. Hobson selected the petitioner's
picture from each of two separate (constitutionally adequate) photo
arrays. The first time, he signed the back of the photograph to
confirm the identification. Detective Flynn testified that Hobson
acted "without hesitation." He later made a second identification
from another photo array. These identifications were made in close
proximity to the time of the murder. In addition, the petitioner
resembled the general description given by Hobson at that time.
Hobson's subsequent expression of less than complete certitude
about the identifications came nearly a year later (after his
3
The trial justice instructed the jurors that the identity of
the shooter was of paramount importance in this case and that it
was up to them to decide the accuracy of Hobson's identification.
-23-
memory arguably had dulled). Given the totality of the
circumstances, we conclude that Hobson's eyewitness testimony could
reasonably be thought to comprise part of a constitutionally
adequate foundation for the ensuing conviction.
Of course, the fact that each weakness in Hobson's
testimony can be overcome does not mean that, in the aggregate,
they can be overcome. Cf. Bourjaily v. United States, 483 U.S.
171, 179-80 (1987) (explaining that "individual pieces of evidence,
insufficient in themselves to prove a point, may in cumulation
prove it"). The district court made this point quite forcefully.
See Foxworth III, slip op. at 25-26. Under the AEDPA, however, the
question is not whether the outcome reached by the state court is
correct in an absolute sense but, rather, the reasonableness of
that court's application of clearly established Federal law in
reaching that outcome. See Hurtado, 245 F.3d at 20.
We mention one last point. We have said that the
underlying constitutional question is close. The very closeness of
the question solidifies the result that we must reach in this case.
Habeas relief is precluded when "it is a close question whether the
state decision is in error." Evans v. Thompson, 518 F.3d 1, 7 (1st
Cir. 2008) (quoting McCambridge, 303 F.3d at 36). That is
especially so when the state court is tasked with applying a
general standard, such as that contemplated by Jackson. See
Yarborough, 541 U.S. at 664; see also Wright v. West, 505 U.S. 277,
-24-
308 (Kennedy, J., concurring) (identifying Jackson as enunciating
a general standard). The generalized nature of the Jackson
standard reinforces our conclusion that it was not unreasonable for
the Appeals Court to hold that Hobson's testimony, together with
the other evidence of record, was sufficient to undergird the
conviction.
The petitioner, ably represented, tries yet another tack.
Arguing for a finding of unreasonableness, he emphasizes the
paucity of reasoning in the Appeals Court's decision. In his view,
this perceived flaw is aggravated by that court's ostensible
overstatement of the corrobative effect of McAfee's testimony.
These arguments have some bite but, on habeas review, the ultimate
inquiry is not the degree to which the state court's decision is or
is not smoothly reasoned; the ultimate inquiry is whether the
outcome is reasonable. See Hurtado, 245 F.3d at 20. A sparsely
reasoned state-court decision may set off warning bells, but such
a decision does not necessarily mean that the outcome represents an
unreasonable application of clearly established Federal law. Id.So it is here. Although the Appeals Court's reasoning on
this issue seems perfunctory (a single paragraph with scant
analysis), the outcome reached by the court appears to be both
plausible and adequately supported. Phrased in the idiom of the
AEDPA, we cannot say on this record that the outcome was an
unreasonable application of the Jackson standard. Accordingly, we
-25-
reverse the district court's decision insofar as it purposes to
grant the petitioner relief on this claim.
C. Sixth Amendment: Confrontation.
The petitioner argued below that the trial justice's
affirmed ruling allowing Logan's redacted statement into evidence
violated his Sixth Amendment confrontation rights. The district
court concurred with the petitioner's appraisal. Foxworth I, slip
op. at 19. The respondent takes exception.
To begin, the panel has identified a pivotal issue
concerning the date upon which the petitioner's conviction became
final; that is, the date when the process of direct review of the
conviction in the state courts was exhausted. The district court,
believing that the respondent had conceded the point, assumed that
the conviction became final in 2002 (when the SJC denied the
amended ALOFAR). See Foxworth I, slip op. at 4 n.3. The parties
have not explicitly addressed the date of finality in their briefs
in this court (although the respondent consistently has argued that
Gray should not be applied retroactively to this case). For our
part, we have been unable either to locate an outright concession
or to agree upon an answer to the finality question of when direct
review ended. As we explain below, the issue turns out to be a
dispositive one.4
4
There is some room for doubt as to whether the respondent
has waived or forfeited the date-of-finality issue by failing to
contest the district court's unfounded statement, by failing to
-26-
1. The Finality Question. We set the stage. In federal
habeas cases, there is a requirement, spelled out in 28 U.S.C.
§ 2254(d), that a state-court decision be measured against "clearly
established Federal law, as determined by Supreme Court of the
United States." In most cases (and, specifically, in this case),
the date of finality of the state court conviction determines the
time line to be used for determining what Supreme Court decisions
comprise the corpus of this "clearly established Federal law."
Here, the jury convicted the petitioner on March 31,
1992; the petitioner's first new trial motion was denied on August
8, 1994; and both the conviction and the denial of the first new
trial motion were affirmed by the Appeals Court on October 21,
1996. The normal time for seeking direct review of that decision
expired twenty days later. See Mass. R. App. P. 27.1(a). The
petitioner took no action; and his conviction became final. At
that time, the Supreme Court's Confrontation Clause jurisprudence
included Bruton and Richardson v. Marsh, 481 U.S. 200 (1987).
The petitioner applied for leave to obtain further
appellate review four years later (on October 25, 2000). In that
raise the issue squarely in his appellate briefs, and/or by his
counsel's statements at oral argument in this court. The panel is
divided on this point: Chief Judge Lynch and Judge Siler find
neither waiver nor forfeiture; Judge Selya would hold the point
waived or, at least, forfeited. Since a majority of the panel
believes that the question of finality is properly before us, no
useful purpose would be served by rehearsing the arguments for and
against waiver.
-27-
temporal gap, the Supreme Court decided Gray v. Maryland, 523 U.S.
185 (1998). That opinion refined and extended the Bruton rule.
The petitioner's 2000 pro se ALOFAR did not cite Gray.
The proceedings were stayed while petitioner filed and litigated a
second new trial motion. On July 22, 2002, the petitioner
submitted an amended ALOFAR which cited Gray and argued that, under
Griffith v. Kentucky, 479 U.S. 314, 328 (1987), he was entitled to
its benefit. The amended ALOFAR was accompanied by a "motion to
file an amended FAR application late," which the SJC allowed. The
SJC denied further appellate review without comment on September 6,
2002.
Given this chronology, there are two possible dates of
finality: November 18, 1996 or September 6, 2002.5 We know that
the SJC has the power to overlook the untimeliness of an ALOFAR and
sometimes considers a late application on the merits. See, e.g.,
Commonwealth v. O'Neil, 765 N.E.2d 767, 767 n.1 (Mass. 2002). But
the question is whether the SJC's actions here reopened the
finality of the criminal conviction in 2002. See 2 R. Hertz & J.S.
Liebman, Federal Habeas Corpus Practice & Procedure § 25.6 (5th ed.
2001) (suggesting that a state court may choose to delay the point
5
In fact, the latter date may well be extended by ninety days
to encompass the period in which a petition for certiorari to the
Supreme Court of the United States could be filed. See, e.g.,
Griffith, 479 U.S. at 321 n.6. Because this ninety-day shift makes
no difference here, we use September 6, 2002 as a convenient
shorthand.
-28-
of finality of a criminal judgment and that, since the non-
retroactivity doctrine serves the interests of the states, a
federal court may be required to respect this decision on habeas
review).
The answer to these questions will be conclusive here.
After all, if the petitioner's conviction became final in 2002,
then Gray applies because it was decided beforehand. Otherwise,
Richardson controls. As we explain below, the result of our
analysis of the confrontation issue hinges on which of these
precedents governs.
2. The Effect if 2002 is the Date of Finality. We turn
next to the effect of a 2002 date of finality on the constitutional
propriety of the trial justice's evidentiary ruling. The
respondent consistently has argued that the date for determining
clearly established law was in 1996. But the respondent gave a
particular reason, and that reason is wrong: the respondent posits
that because the SJC summarily denied further appellate review, the
contours of "clearly established Federal law" should be defined
with reference to the date of the Appeals Court decision (which
antedated Gray). The district court found this theory
unconvincing, see Foxworth I, slip op. at 5, and so do we.
The respondent's theory is based on an incorrect premise.
To support it, the respondent cites Justice O'Connor's locution
that, under the AEDPA, the term "clearly established Federal law"
-29-
means "the holdings, as opposed to the dicta, of this Court's
decisions as of the time of the relevant state-court decision."
Williams, 529 U.S. at 412. The respondent reads the phrase
"relevant state-court decision" as referring for all purposes to
the last reasoned state-court decision.
This reading is untenable. Close perscrutation of
Williams discloses nothing in the Court's constituent opinions that
indicates any intention on Justice O'Connor's part either to modify
or to undercut the bright-line rule of Teague v. Lane, 489 U.S.
288, 310 (1989) (effectively limiting the consideration of new
constitutional rules of criminal procedure in cases on collateral
review to those rules announced before the petitioner's conviction
became final). The opposite is true. Justice O'Connor's opinion
stated that "whatever would qualify as an old rule under our Teague
jurisprudence will constitute 'clearly established Federal law, as
determined by the Supreme Court of the United States' under
§ 2254(d)(1)." 529 U.S. at 412. That is a frank recognition that
the AEDPA has neither altered nor eroded the marker laid down by
Teague. This recognition is fully consistent with Part III of
Justice Stevens's lead opinion, joined by Justice O'Connor; there,
Justice Stevens stated that "[t]he threshold question under AEDPA
is whether [the petitioner] seeks to apply a rule of law that was
clearly established at the time his state-court conviction became
final." Williams, 529 U.S. at 390 (emphasis supplied).
-30-
Griffith removes any vestige of doubt. We have read that
decision as establishing that "[i]f [a] conviction is not yet final
when the Supreme Court announces [a] rule, then inferior courts
must apply that rule to the defendant's case." Derman v. United
States, 298 F.3d 34, 39 (1st Cir. 2002) (citing Griffith, 479 U.S.
at 322). By contrast, if the conviction is already final, then the
defendant ordinarily — there are special circumstances, but none
that are relevant here — may not avail himself of the newly
announced rule. See Teague, 439 U.S. at 310. It is, therefore,
evident that finality, not the date of the last reasoned decision,
is the principal determinant of whether a "new" rule can be applied
to an "old" case.
Finality means that "a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a
petition for certiorari [has] elapsed or a petition for certiorari
[filed and] finally denied." Griffith, 479 U.S. at 321 n.6. Under
this definition, if the petitioner's conviction was final no
earlier than September 6, 2002, Gray would control. See Currie v.
Matesanz, 281 F.3d 261, 266 (1st Cir. 2002).
To recapitulate, both Teague and Griffith remain good
law. Those cases mean what they say. Together, they lead to the
inexorable conclusion that if the petitioner's conviction was not
"final" until after Gray was decided by the Supreme Court, the
petitioner is entitled to the benefit of Gray.
-31-
We add a coda. While this result is dictated by
precedent, it also makes good sense from a policy standpoint. The
construct advocated by the respondent would allow a state court to
subvert Griffith and deny criminal defendants the benefit of new
Supreme Court precedent by the simple expedient of summarily
affirming a lower court's decision. That would give state courts
a perverse incentive to avoid addressing constitutional claims in
contemporaneous terms while insulating their actions from
subsequent federal habeas review. That would be an unattractive
prospect.
The respondent has yet another string to his bow. He
argues that even if Gray applies, the trial justice's ruling should
be upheld. Initially, that argument requires us to consider the
standard of review applicable to the state court's rejection of the
Sixth Amendment claim.
On this point, the respondent urges us to use AEDPA's
customary "unreasonable application" standard. 28 U.S.C.
§ 2254(d)(1). The petitioner resists. He notes that this standard
applies only to a "claim that was adjudicated on the merits in
State court proceedings." Id. § 2254(d). Because Gray was never
addressed by the state courts, he proposes de novo review. See
Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (stating that a
federal court "can hardly defer to the state court on an issue that
the state court did not address"); cf. Brown v. Maloney, 267 F.3d
-32-
36, 40 (1st Cir. 2001) (declaring that absent "reasoning on a
holding from the state court on [an] issue," it cannot be said that
the claim was adjudicated on the merits).
The precise question raised by the dueling arguments is
whether a state-court decision disposing of a federal
constitutional claim on the merits without a reasoned application
of the most pertinent Supreme Court authority is an adjudication
that comes within the AEDPA's purview. This is a question
different from that which we confronted in Fortini. The Appeals
Court, citing Bruton, squarely decided the Sixth Amendment claim
and elaborated its reasoning. But that decision did not take
account of Gray; indeed, it could not have done so; the Supreme
Court decided Gray after the Appeals Court issued its decision. In
these uncharted waters, ascertainment of the appropriate level of
review presents a vexing question.
Deferring the answers to difficult procedural questions
until the law develops is often the path of prudence. We have the
luxury of taking that path here because nothing turns on the
standard of review. Even were we to accept the respondent's
argument and evaluate the state court's resolution of the Sixth
Amendment claim through the AEDPA's more deferential prism, we
would conclude that the petitioner is entitled to relief. Thus, we
assume for ease in administration — but do not decide — that the
-33-
AEDPA's "unreasonable application" standard pertains to the state
courts' resolution of the Sixth Amendment claim.
This brings us to the merits of the respondent's
contention that even if the petitioner's conviction did not become
final until 2002 and Gray therefore applies, the trial justice's
ruling was neither contrary to nor an unreasonable application of
Gray. This argument requires us to exercise the trilogy of Supreme
Court cases that collectively constitute the controlling precedents
for the petitioner's Confrontation Clause claim. This trilogy
includes Bruton, Richardson, and Gray. We start with a brief
synopsis of each decision.
In Bruton, the Supreme Court proscribed the introduction
of a nontestifying defendant's extrajudicial statements that are
"powerfully incriminating" as to a jointly-tried codefendant. 391
U.S. at 135. The Court made pellucid that the vice inherent in
such a tactic cannot reliably be abated through the use of limiting
instructions. Id. (explaining that "the risk that the jury will
not, or cannot, follow [such] instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored").
In Richardson, the Court refined the Bruton rule. It
held that "the Confrontation Clause is not violated by the
admission of a nontestifying codefendant's confession with a proper
-34-
limiting instruction when . . . the confession is redacted to
eliminate not only the [objecting] defendant's name, but any
reference to his or her existence." 481 U.S. 211. Under this
refinement, "[s]tatements that are incriminating only when linked
to other evidence in the case do not trigger application of
Bruton's preclusionary rule." United States v. Vega Molina, 407
F.3d 511, 520 (1st Cir. 2005).
Richardson left open the question of whether Bruton's
prophylaxis extended to a statement in which the objecting
defendant's name has been replaced with a symbol or neutral
pronoun. Gray answered that question, holding that "redactions
that replace a proper name with an obvious blank, the word
'delete,' a symbol, or similarly notify the jury that a name has
been deleted are similar enough to Bruton's unredacted confessions
as to warrant the same legal results." 523 U.S. at 195. Under
this regime, an inquiring court must judge the efficacy of
redaction on a case-by-case basis, paying careful attention to both
a statement's text and the context in which it is offered. Vega
Molina, 407 F.3d at 520.
In this corner of the law, one size does not fit all.
One case may involve numerous actors and events, such that no
compelling inference can be drawn that a symbol or neutral pronoun
refers to a specific defendant. A different case may involve few
actors and events, such that a symbol or neutral pronoun becomes
-35-
transparent and leaves little doubt in the listener's mind about
the identity of the person whose name has been removed.
This brings us to the instant case. In affirming the
trial justice's admission of Logan's statement, the Appeals Court
wrote:
Foxworth's reliance [on Bruton] is misplaced,
however, because (a) the challenged statement
as redacted did not name or necessarily
implicate Foxworth; (b) it was not
"powerfully" inculpatory, since Logan
concededly had left the premises before and
did not personally observe the shooting; (c)
the Commonwealth's case rested primarily on
the eyewitness identification of Foxworth as
the shooter; (d) the prosecutor did not use
the statement as substantive evidence against
Foxworth but rather against Logan and in
support of a joint venture theory; and (e) the
judge provided an appropriate instruction to
obviate the Bruton concerns.
Evaluating the Appeals Court's ruling against Bruton and
Richardson, we hold that it was not an unreasonable application of
clearly established Federal law. See infra Part II(C)(3). Thus,
the petitioner's claim depends wholly on the refinement and
extension of the doctrine that Gray heralded.
Here (as in the district court), the petitioner
challenges the Appeals Court's recitation on several levels,
primarily arguing that the redacted statement left no doubt as to
his identity and, in the bargain, powerfully incriminated him. He
succeeded in convincing the district court that the Appeals Court's
-36-
rejection of this challenge constituted an unreasonable application
of Gray. See Foxworth I, slip op. at 19.
The respondent assigns error, maintaining that Gray and
this case are horses of a different hue. In a sense, that is so.
In Gray, the redaction — a blank space — was clear on the face of
the statement. Here, a clumsy attempt was made to redact Logan's
statement in a way that might serve to conceal from the jury the
fact that a redaction had been made.
Still, this difference seems to be of little moment. As
said, this is an "unreasonable application" case; thus, the mere
existence of a slight factual distinction does not signify that the
statement in question necessarily spins outside of Gray's
precedential orbit. What matters is that the situation at hand
fits comfortably within the parameters of Gray's doctrinal
teachings.
We have carefully examined both the text of the redacted
statement and the context in which it was admitted. We conclude
that its admission was an unreasonable application of Gray. Our
reasons follow.
First, the redaction is obvious. In and of itself, the
use of the designation "Mr. X" would have caused any rational juror
to raise an eyebrow. See United States v. Peterson, 140 F.3d 819,
822 (9th Cir. 1998) (finding Bruton error where "person X" was
substituted for defendant's name); see also Malinski v. New York,
-37-
324 U.S. 401, 430 (1945) (Rutledge, J., dissenting) (describing
substitution of a name in a confession with "X" or "Y" as "devices
. . . so obvious as perhaps to emphasize the identity of those they
purported to conceal").
Here, however, we need not muse about raised eyebrows and
other such subtleties. Detective Flynn drove this point home,
testifying that "Mr. X" was a substitute for the name of the person
actually identified by Logan. Furthermore, the prosecutor referred
to Logan's statement as "the redacted statement." To cinch
matters, the copy given to the jury had the phrase "Mr. X" in a
different font (which did not exactly fit the spaces left by the
excision of the petitioner's name). It follows inexorably from
these facts that the use of the pseudonym "Mr. X" represented an
"obvious deletion" that "encourag[ed] the jury to speculate about
the reference." Gray, 523 U.S. at 193.
With knowledge of the redaction, it was child's play for
the jury to identify the petitioner as "Mr. X." There were only
three defendants — Logan, Christian, and the petitioner — and no
other suspects. Logan, as the author of the statement, could not
have been "Mr. X." Flynn's testimony unambiguously eliminated
Christian from consideration. That left the petitioner.
Of course, the fact that it was obvious that the
petitioner was "Mr. X" does not necessarily render Logan's redacted
statement powerfully incriminating. In this regard, the respondent
-38-
points out that the statement did not designate "Mr. X" as the
shooter. That disclaimer is true as far as it goes, but it does not
take the respondent very far.
To recapitulate, the redacted statement revealed that "Mr.
X" had gone to McLean's apartment because McLean had sold him some
bad cocaine; once there, "Mr. X" argued with McLean; then, after
"Mr. X" had departed, Logan saw him reentering the building with a
gun tucked into his waistband; and shots were heard shortly
thereafter. Given the chain of events chronicled in Logan's
redacted statement, the inference that the petitioner shot McLean
was virtually inescapable. As a practical matter, the statement
directly implicated the petitioner and powerfully incriminated him.6
Under Gray, the redacted statement should have been excluded.
That conclusion does not end our odyssey. Even though the
admission of the redacted statement violated Gray, the AEDPA
standard requires more than a showing of trial error. See
McCambridge, 303 F.3d at 36. At a bare minimum, the error must be
sufficiently egregious to comprise an unreasonable application of
6
The Appeals Court made much of the trial justice's
instructions limiting the jury's use of the statement to the case
against Logan. Where a nontestifying codefendant's statement is
powerfully incriminating, however, a limiting instruction is cold
comfort. See Bruton, 391 U.S. at 135. That is especially so in
this case since Logan was charged with murder under a joint-venture
theory, and the petitioner was a likely candidate for membership in
any such joint venture.
-39-
clearly established federal constitutional principles. 28 U.S.C.
§ 2254(d)(1). That standard is satisfied here.
We need not tarry. The range of reasonable outcomes here
is small because the applicable constitutional rule — explained in
Gray — is narrow, see United States v. Thayer, 204 F.3d 1352, 1355
(11th Cir. 2000) (describing Bruton rule as "narrow"). The outcome
reached by the Appeals Court (albeit understandable because Gray had
not yet been decided) is patently offensive to that rule. There is
simply no way to defend it: the inferences necessary to conclude
that the petitioner was "Mr. X" and that "Mr. X" was the shooter are
nose-on-the-face plain, and the inculpatory thrust of the statement
is potent. We hold, therefore, that if the state conviction was not
final until 2002, Gray applies; and, applying Gray to this case, it
would run afoul of clearly established Federal law to find no
violation of Gray on these facts.
As a rear-guard action, the respondent suggests that any
Sixth Amendment violation was harmless. This suggestion lacks
merit.
Once again, we pause to clarify the applicable standard
of review. Although the Appeals Court did not find a Bruton error,
it nevertheless hedged its bets. It added that "[e]ven if there
were error, [in connection with the admission of Logan's statement],
it was harmless, because the evidence related to a noncrucial issue
. . . and was at most merely cumulative of evidence properly before
-40-
the jury." The court cited Commonwealth v. Sinnott, 507 N.E.2d 699(Mass. 1987), which holds that a Bruton error does not require
reversal if it was "harmless beyond a reasonable doubt." Id. at
705. In other words, it applied the federal standard for harmless
constitutional error applicable on direct review. See Chapman v.
California, 386 U.S. 18, 24 (1967).
That determination of harmlessness does not engender AEDPA
deference. The Supreme Court recently instructed federal habeas
courts to perform a straightforward harmless error analysis under
Brecht, 507 U.S. at 638, rather than review a state court's
harmless-beyond-a-reasonable-doubt determination for
unreasonableness. Fry v. Pliler, 127 S. Ct. 2321, 2327 (2007); see
Delaney, 522 F.3d at 105. This is so because the more forgiving
Brecht test subsumes the hybrid Chapman/AEDPA test. Fry, 127 St.
Ct. at 2327. We proceed accordingly.
On collateral review of trial error, the test for harmless
error is whether the error had a "substantial and injurious effect
or influence in determining the jury's verdict." Sinnott v. Duval,
139 F.3d 12, 14 (1st Cir. 1998) (quoting Brecht, 507 U.S. at 637).
The burden of establishing harmlessness rests with the state qua
respondent. O'Neal v. McAninch, 513 U.S. 432, 437 (1995). If the
habeas court entertains "grave doubt as to harmlessness, the
petitioner must win." Id.-41-
The identification of the shooter was the pivotal issue
in this case. The prosecution's case in chief, though
constitutionally sufficient, was painfully thin. See supra Part
II(B). Other than Logan's statement, the only evidence bearing on
identification was Hobson's testimony. That testimony was scarcely
unassailable. Logan's statement bolstered Hobson's account by
placing the petitioner at the murder scene, armed and with a motive,
immediately before the shooting. It also supported Hobson's version
of the events leading up to the slaying as it suggested that McLean
was chased by one man rather than two.
At the trial-court level, this case was close. In close
cases, there is often a tipping point. We think that it is probable
that Logan's statement tipped the balance. The statement lent
significant weight to the word of the lone witness who identified
the petitioner as the shooter and, as the Bruton Court recognized,
391 U.S. at 135, the trial justice's limiting instructions were not
an effective safeguard against the jury's exposure to such
powerfully incriminating evidence. Indeed, the impact of the
statement is adequately evinced by the fact that the jury convicted
the petitioner while acquitting Logan.
In sum, we agree with the district court, Foxworth I, slip
op. at 23, that the admission of the redacted statement likely had
a substantial and injurious influence on the outcome of the
-42-
proceedings. At the very least, there is grave doubt. Accordingly,
the petitioner is entitled to a new trial if Gray applies.
3. The Effect if 1996 is the Date of Finality. If the
petitioner's conviction became final in 1996 rather than final in
2002, the case plays out differently. Because the Supreme Court had
not yet decided Gray,7 the relevant "clearly established Federal
law" would be capped by Richardson. Under that precedent — and
without the benefit of Gray — the Appeals Court's decision cannot
be said to be either contrary to or an unreasonable application of
clearly established Supreme Court precedent. After all, the
Richardson Court specifically left open the question, implicated in
this case, of whether a Confrontation Clause problem exists when
"the defendant's name has been replaced by a symbol or neutral
pronoun." 481 U.S. at 211 n.5. The Court's acknowledgment that an
issue remains fairly debatable precludes any credible argument that
a state court's decision on the issue is contrary to or an
unreasonable application of clearly established Supreme Court
precedent.8 See L'Abbe v. DiPaolo, 311 F.3d 93, 98 (1st Cir. 2002).
7
We note that the Court has not directed that Gray should be
applied retroactively. See Teague, 489 U.S. at 310; see also
Garcia v. United States, 278 F.3d 1210, 1216 (11th Cir. 2002)
(refusing to apply Gray retroactively).
8
The closeness of the question left open in Richardson is
emphasized by the fact that in the subsequent decision in Gray four
justices dissented. See Gray, 523 U.S. at 200 (Scalia, J.,
dissenting).
-43-
4. The Decision to Certify. It thus appears that the
date of finality, which will determine whether Gray or Richardson
is the controlling precedent, will be dispositive of this aspect of
the respondent's appeal. The SJC has offered no real guidance on
that issue, and the correct answer remains shrouded in uncertainty.
Moreover, the case is obviously important: a murder conviction hangs
in the balance. Consequently, we deem it appropriate to certify the
question concerning the date of finality to the SJC. See, e.g., In
re Engage, Inc., 544 F.3d 50, 57 n.10 (1st Cir. 2008) (approving sua
sponte certification in appropriate cases); Brown v. Crown Equip.
Corp., 501 F.3d 75, 77 (1st Cir. 2007) (similar).
This case fits the model for certification. We may
certify doubtful questions to a state supreme court in cases, such
as this, where we find no controlling precedent, where the answer
is unclear, and where the answer will be determinative of an issue
in the litigation. See Boston Gas Co. v. Century Indem. Co., 529
F.3d 8, 15 (1st Cir. 2008); Nieves v. Univ. of P.R., 7 F.3d 270, 274
(1st Cir. 1993). And, moreover, the SJC has indicated a
willingness, under such circumstances, to answer certified
questions. See Mass. S.J.C. R. 1:03.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we reverse the district court's ukase holding the evidence of the
petitioner's guilt insufficient. At the same time, however, we
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withhold decision on the district court's ruling that the petitioner
is entitled to relief on the basis of a Sixth Amendment violation.
The outcome of that question turns on whether the petitioner's
conviction became final in 1996 or 2002. We certify that question
to the SJC as per the order filed in conjunction herewith. Pending
that court's response, we retain appellate jurisdiction.
So Ordered.
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