          United States Court of Appeals
                        For the First Circuit

No. 12-2338

                           ALLEN SCOGGINS,

                        Petitioner, Appellant,

                                  v.

                            TIMOTHY HALL,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before

                          Lynch, Chief Judge,
                  Selya and Kayatta, Circuit Judges.


     Alan D. Campbell for appellant.
     Annette C. Benedetto, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Martha Coakley, Attorney General,
Commonwealth of Massachusetts, was on brief, for appellee.



                           August 26, 2014
             KAYATTA, Circuit Judge.         Allen Scoggins was convicted of

first-degree murder in 1998 and is currently serving a life

sentence in a Massachusetts prison.            He filed this petition for a

writ of habeas corpus under 28 U.S.C. § 2254, seeking to invalidate

his conviction on the ground that his court-appointed attorney

provided ineffective assistance by forgoing the opportunity to

interview a prosecution witness, Barbara Holbrook, before trial,

and declining to interview or to call at trial any of a number of

witnesses who, he claims, could have rebutted her testimony.                The

district court denied the petition, reasoning that the state

court's rejection of the ineffective-assistance claim did not

constitute an unreasonable application of the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), for evaluating such

claims.   We agree, and thus affirm.

                               I.   Background

             We   take   the   facts    largely     as    recounted   by     the

Massachusetts Supreme Judicial Court ("SJC") decision affirming

Scoggins's     conviction,     supplemented      with    other   record    facts

consistent with the SJC's findings. See Yeboah-Safeh v. Ficco, 556

F.3d 53 (1st Cir. 2009); see also Commonwealth v. Scoggins, 439

Mass. 571 (2003).

             At around 1:20 A.M. on May 16, 1997, a taxicab, its

lights on and its engine running, rolled slowly onto a lawn near

Wyman Street in Brockton, Massachusetts. Its meter read $3.00, but


                                       -2-
the fare would never be paid.    Its driver, Ishmael Rivera, lay

dead, mere feet away, after having been shot three times, including

once in the face and once in the chest.     A coroner would later

report that each shot alone would have been sufficient to cause

Rivera's death.

          The man who fired the shots, petitioner Allen Scoggins,

decamped to South Carolina shortly thereafter.     While there, he

spent time with his uncle, Vernon Campbell ("Campbell"), and

Campbell's then-girlfriend, Barbara Holbrook. And although Scoggins

was indicted for first-degree murder in June of 1997, he managed to

evade detection until August of that year, when Holbrook went to

the police to file a domestic-violence complaint against Campbell.

Either while or soon after filing the domestic-violence complaint,

Holbrook told police that she knew of Scoggins's whereabouts and

that Scoggins told her that he murdered Rivera in an attempted

armed robbery gone wrong.   Scoggins was detained soon afterwards.

          While in custody, Scoggins confessed that he was Rivera's

final fare and that when he entered Rivera's taxicab, he carried

with him a loaded, borrowed gun. He further admitted that he

brandished the gun after Rivera made a wrong turn, and that the gun

he carried and brandished was the same gun that killed Rivera.

Though he claimed he was intoxicated at the time of the shooting

and could not remember everything that transpired, he was adamant




                                -3-
that he acted in self-defense.    He also said that he was sorry for

taking Rivera's life.

             At trial, Holbrook testified that when Scoggins was in

South Carolina, Scoggins lived with his cousin Annette Campbell,

and would often play cards with Campbell and Holbrook. She further

testified that over a game of cards between Holbrook, Scoggins,

Campbell, and another cousin, Jermaine Campbell, at the home of a

friend named Pam Price, Scoggins "talked about the murder," saying

"that he called a cab to go -- he didn't say a [specific]

destination. He was going to stick up the cab driver.         The cab

driver got scared, tried to call the police; but the cab driver was

going to jump out the car.    And [Scoggins] just got scared, and he

jumped out the car and shot him."       She also said that Scoggins

"[j]okingly" suggested that he "couldn't take cabs anymore."

             On cross, Holbrook fared poorly.   She partially recanted

portions of her statement to the police -- and portions of her

testimony.     Specifically, she conceded that several statements by

Scoggins that she previously testified had been said in her

presence had instead been relayed to her by Campbell.1       Holbrook

did not, however, recant all of her testimony.       She also did not



     1
        Holbrook said that Campbell, not Scoggins, told her that
Scoggins brought the gun that he used in the murder down to South
Carolina and that Scoggins had not been alone in the cab. She
further denied -- contrary to the statement she had given police --
that she ever directly asked Scoggins whether he was the one who
killed Rivera.

                                  -4-
concede that everything she said Scoggins said had been reported to

her by others.2         In his closing argument, Scoggins's counsel

exploited Holbrook's shaky performance, telling the jury, "Barbara

Holbrook, I thought to put her before you as a credible witness is

an insult to your intelligence.        This girl had no . . . idea of

what was going on . . . .       She adopted everything anybody said to

her.       I asked her, 'Did you say that?' 'No.   I heard it from Vernon

Campbell.' 'Well, didn't you read the statement?        You said he did,

or he didn't.' . . . 'Well, I did, but I didn't say that.         Vernon

Campbell said that.'"       Ultimately, he asked the jury, "[w]ould you

want to trust your future, and the fate of your family to Barbara

Holbrook?        Is that the kind of witness you want to rely on to

convict somebody of first degree murder -- because of Barbara

Holbrook?       I think not."

               The jury found Scoggins guilty of first-degree murder on

theories of premeditation and felony murder, and Scoggins received

a life sentence.        Represented by new counsel, Scoggins appealed.

In that appeal, he also filed a 50-page pro se brief in which he

raised the argument, raised here, that trial counsel should have

interviewed and brought to testify Campbell, Price, and Jermaine

Campbell.        However, neither Scoggins nor his appellate counsel



       2
         Specifically, the ambiguous testimony on cross did not
compel a finding that Holbrook recanted her claim that Scoggins
said that he planned to stick up the cab driver, and, further, that
Scoggins shot the driver.

                                    -5-
advanced the argument, also raised here, that Scoggins's trial

counsel should have interviewed Holbrook before trial.           The appeal

failed.

           After filing a timely habeas petition and securing a

stay, Scoggins commenced an effort to secure collateral review in

state court by filing a second motion for new trial. In that

motion, Scoggins first presented the argument that trial counsel

was   ineffective   for   having   failed   to   interview    Holbrook.   In

support of that argument, Scoggins included an affidavit from

Holbrook claiming that, had she been interviewed prior to trial,

she would have told Scoggins's attorney that she "did not hear Mr.

Scoggins make any statements about this case."               Rejecting that

argument, the Massachusetts Superior Court expressly found that

"the doctrine of waiver bars the defendant's current claims."

Adding belt to suspenders, the court further found that counsel's

decision not to interview Holbrook was not manifestly unreasonable,

and thus could not support an ineffectiveness claim.           Finally, the

court found Holbrook's affidavit to be incredible, noting among

other things that it directly contradicted the testimony that she

gave at trial.

           After unsuccessfully appealing the denial of his second

motion for a new trial, Scoggins returned to his stayed action in

the district court, pressing the arguments he now presses on

appeal.    The district court denied the petition, but issued a


                                    -6-
Certificate         of    Appealability       on    Scoggins's          claim     that   trial

counsel's failure to interview Holbrook, and failure to interview

or    call     at    trial      Campbell,        Price,        and    Jermaine     Campbell,

constituted ineffective assistance.                          See 28 U.S.C. § 2253(c).

Scoggins appealed. We have jurisdiction under 28 U.S.C. § 2253(a).

                II. Review of Strickland claims under AEDPA

               Scoggins argues that the state court proceedings violated

the    Sixth    Amendment        both      because       his    trial     counsel    neither

interviewed Holbrook before she testified nor contacted Campbell,

Price, or Jermaine Campbell to rebut her testimony.                               To prove a

Sixth Amendment violation based on the failings of defense counsel,

a petitioner must demonstrate both "(1) that 'counsel's performance

was deficient,' meaning that 'counsel made errors so serious that

counsel      was    not    functioning       as    the       "counsel"       guaranteed     the

defendant by the Sixth Amendment'; and (2) 'that the deficient

performance prejudiced the defense.'"                        United States v. Valerio,

676    F.3d     237,      246   (1st    Cir.       2012)       (quoting      Strickland      v.

Washington, 466 U.S. 668, 687 (1984)).                       In assessing the adequacy

of    appointed      counsel,      we   "indulge         a     strong   presumption       that

counsel's      conduct       falls     within      the    wide       range   of   reasonable

professional assistance," see Strickland, 466 U.S. at 689, finding

deficiency only "where, given the facts known [to counsel] at the

time,   counsel's         choice     was    so     patently      unreasonable        that   no

competent attorney would have made it."                         Knight v. Spencer, 447


                                             -7-
F.3d 6, 15 (1st Cir. 2006) (internal quotation marks omitted).

And, to establish prejudice, a defendant must demonstrate "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694.

             Adding more to Scoggins's burden in this case are the

limitations on our review imposed by 28 U.S.C. § 2254, as amended

by the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"),    which    governs   the    standards    by     which    we    review

collateral attacks on state-court convictions.                  That provision,

"designed to confirm that state courts are the principal forum for

asserting constitutional challenges to state convictions," see

Harrington v. Richter, 131 S. Ct. 770, 787 (2011), authorizes us to

reverse   a    state   court's   adjudication       of    the     merits   of   a

petitioner's legal claim only where the state-court adjudication

either:

     (1) resulted in a decision that was contrary to, or
     involved an unreasonable application of, clearly
     established Federal law, as determined by the Supreme
     Court of the United States; or

     (2) resulted in a decision that was based on an
     unreasonable determination of the facts in light of the
     evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

             Scoggins rests his claim on the argument that the state

court's   adjudication    resulted      in   a   decision    constituting       an

"unreasonable application" of federal law.                He therefore must

                                       -8-
demonstrate "that the state court's ruling on the claim . . . was

so lacking in justification that there was an error well understood

and   comprehended   in   existing   law     beyond   any   possibility   for

fairminded   disagreement."       Richter,      131   S.    Ct.   at   786-87.

Additionally,   to   the    extent    that     Scoggins's    constitutional

arguments depend on factual premises the state court rejected, we

are required by statute to "presume[] . . . correct" the state

court's factual determinations, leaving to Scoggins the weighty

"burden of rebutting the presumption of correctness by clear and

convincing evidence."      See 28 U.S.C. § 2254(e)(1); see also Coombs

v. Maine, 202 F.3d 14, 18 (1st Cir. 2000).            In short, we do not

lightly undertake to substitute our judgments for those of the

courts of the various sovereign states that fall within our

jurisdiction, see, e.g., Coleman v. Thompson, 501 U.S. 722, 748

(1991) ("Federal intrusions into state criminal trials frustrate

both the States' sovereign power to punish offenders and their

good-faith attempts to honor constitutional rights.") (internal

citation, alteration, and quotations marks omitted), and our review

of their work is particularly deferential when the question is

counsel's effectiveness. Richter, 131 S. Ct. at 788 ("The standards

created by Strickland and § 2254(d) are both highly deferential,

and when the two apply in tandem, review is doubly so.") (internal

citations and quotation marks omitted).




                                     -9-
                                III.   Analysis

            We address first Scoggins's claim that Campbell, Price,

and   Jermaine    Campbell,     if   called,   could    have   "contradicted"

Holbrook's testimony by saying that Scoggins never said anything

about a shooting of a cab driver in Holbrook's presence.              None of

these three individuals have themselves so testified or affirmed.

More importantly, any such contradiction of Holbrook's testimony

would likely have caused the factfinder -- and government counsel

-- to ask how Holbrook otherwise could have recounted the details

she recounted.     A crucial part of her testimony was that Scoggins

shot Rivera as or after Rivera exited the cab, which was exactly

where the body was found.        Either she heard Scoggins say what she

claimed he said, or Campbell, et al., told her he said it, or she

was extraordinarily lucky in making it up.                  Only the third,

unlikely scenario would help Scoggins; the other two would be

harmful.

            Campbell, too, twice told police that Scoggins pulled a

gun   on   the   cab   driver   to   get   money   --   precisely   the   other

inculpatory fact to which Holbrook testified.             Putting him on the

stand as a friendly witness -- he was, after all, Scoggins's uncle

-- only to have him possibly tripped up by his prior statements

might reasonably have been seen as a big risk, especially when the

defense could likely offer no explanation for how Holbrook could

know the cab driver was shot outside the cab. Weighing these risks


                                       -10-
against the possible (though unlikely) upsides of such a line of

inquiry is precisely the sort of task that our adversarial system

entrusts to counsel, rather than to the hindsight of a later,

reviewing court. In any event, in order to reject Scoggins's claim

under the applicable standards of review, we need only conclude

that the state court acted reasonably in determining that defense

counsel's decision to refrain from calling Campell, Price, and

Jermaine Campbell was not beyond the pale of reason.    Because we

have no trouble doing so, we reject Scoggins's claim that the

failure to pursue a line of inquiry involving Price and the two

Campbells constituted deficient performance.

          The argument concerning the failure to interview Holbrook

raises different issues.   Initially, it appears that Scoggins did

not timely raise this argument under Massachusetts procedure, and

thus waived the argument.     Indeed, this is precisely what the

Massachusetts Superior Court held: When Scoggins tried to raise the

claim on his second motion for new trial, the court rejected the

argument on the ground that it should instead have been brought in

his initial motion for a new trial and preserved on Scoggins's

direct appeal thereof.   Hence, the state court's rejection almost

certainly rests on waiver -- an adequate, alternative state law

ground that places the argument's merits beyond the reach of our

review. E.g., Beard v. Kindler, 558 U.S. 53, 55 (2009) ("A federal

habeas court will not review a claim rejected by a state court 'if


                               -11-
the decision of [the state] court rests on a state law ground that

is independent of the federal question and adequate to support the

judgment.'"    (quoting    Coleman   v.     Thompson,   501   U.S.   722,   729

(1991))).     The respondent, however, makes not a peep about this

procedural shortcoming, treating the Holbrook argument as if it is

properly preserved.       And because we may straightforwardly reject

Scoggins's petition on the merits without reference to the state

court's reliance on this ground, as that reliance implicates no

question concerning our jurisdiction, we need not consider here an

argument that the state neglected to raise and to which, as a

consequence, Scoggins has had no chance to respond.

            Turning to the merits of the argument, we skip over the

perhaps puzzling question of why defense counsel did not at least

telephone Holbrook to see what she might offer to say. We turn,

instead, to the easier question of whether such a call would have

made any difference. The record does contain a document signed by

Holbrook claiming that, had counsel contacted her, she would have

readily informed him that she heard nothing from Scoggins about the

case.   In denying Scoggins's second motion for a new trial, the

Massachusetts Superior Court found this affidavit not credible.

The affidavit flatly contradicted both Holbrook's volunteered

statements to the police and her testimony at trial, and it offered

no explanation for how she could have made up the portions of her

testimony in which she recounted subtle details of the crime.


                                     -12-
Thus, we simply see nothing in the record that would permit us to

determine that the state court was demonstrably wrong to conclude

that, of the inconsistent statements Holbrook has given, the one

she gave at trial was the truthful one.               In light of our deference

to the state court's conclusion, Scoggins's assertion that failing

to interview Holbrook resulted in prejudice lacks the type of

record support that would compel a reasonable jurist to agree. For

this reason alone, and even accepting for argument's sake that

trial   counsel     should   have      at   least    spoken     to   Holbrook,   the

Strickland claim fails.          See, e.g., United States v. Valerio, 676

F.3d 237, 246 (1st Cir. 2012) (reiterating that Strickland claims

require    a    showing   both    that      (1)     counsel's    performance     was

deficient, and (2) that the deficient performance prejudiced the

defense).

                                 IV.   Conclusion

               For the aforementioned reasons, we affirm the district

court's denial of Scoggins's petition for habeas corpus relief. So

ordered.




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