              United States Court of Appeals
                        For the First Circuit

No. 00-1140

                        KENNETH P. PHOENIX,

                      Petitioner, Appellant,

                                  v.

                          JAMES MATESANZ,

                       Respondent, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Reginald C. Lindsay, U.S. District Judge]



                                Before

                      Torruella, Chief Judge,

                   Coffin, Senior Circuit Judge,

                    and Boudin, Circuit Judge.




     Robert L. Sheketoff, with whom Sheketoff & Homan was on brief, for
appellant.
     William J. Meade, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief, for
appellee.
December 1, 2000




      -2-
          TORRUELLA, Chief Judge.      According to the prosecution,

Kenneth Phoenix "almost committed the perfect crime . . . except for

one mistake." Based on that mistake -- a blood-soaked fingerprint left

near the scene -- Phoenix was convicted of the first degree murder of

Raymond Green. Although Phoenix's defense counsel cross-examined the

forensic serologist and fingerprint experts presented by the

Commonwealth of Massachusetts, he did not call defense experts to

further contradict their testimony.      Phoenix now claims that his

attorney's decision not to call such experts denied him his

constitutional right to effective assistance of counsel. Having had

his petition for a writ of habeas corpus denied by the district court,

he appeals to this Court. For the reasons stated herein, we affirm the

decision of the district court.

                             BACKGROUND

          As our previous decision, Phoenix v. Matesanz, 189 F.3d 20,

22-24 (1st Cir. 1999), summarizes this case's procedural history prior

to the district court's denial of habeas, we need provide only a brief

summary here.

          Raymond Green was a plant manager at the Belchertown State

School. On August 4, 1986, he was found dead in his office, shot five

times. Police found pieces of a green scouring pad on his face and on

the floor of his office, as well as in a metal drum on the first floor

of the plant. In that drum police also found a crumpled brown paper


                                 -3-
bag. Fingerprints and blood were found on the paper bag. Two experts

presented by the Commonwealth testified at trial that the identifiable

fingerprints on the bag belonged to Phoenix, who was one of 63

employees supervised by Green. Expert serologist Dr. Moses Schanfield

testified that the blood from the only successfully tested blood stain

was consistent with Green's blood and inconsistent with Phoenix's

blood. Based largely on these two pieces of incriminating evidence,

Phoenix was convicted.

          Although Phoenix's counsel, William Bennett, had retained a

forensic serologist and a fingerprint analyst, he called neither to

testify. The serologist, Dr. Brian Wraxall, later filed an affidavit

stating that he would have testified that the allotype blood test

performed by Schanfield yielded scientifically meaningless results.

Wraxall would have further testified that no scientific basis existed

to conclude that the tested stain was either consistent with Green's

blood or inconsistent with Phoenix's blood. The fingerprint expert,

Herbert MacDonnell, filed an affidavit stating that the fingerprint

lacked sufficient detail to be identified either as Phoenix's or not

Phoenix's.

          After Phoenix's direct appeals were denied, ultimately by the

Massachusetts Supreme Judicial Court, Commonwealth v. Phoenix, 567

N.E.2d 193 (Mass. 1991), he filed a second motion for a new trial

claiming that he had been denied effective assistance of counsel based


                                 -4-
on Bennett's failure to call Wraxall and MacDonnell. The Superior

Court denied his motion, as did a single gatekeeper justice of the SJC.

The federal district court then found that Phoenix was not procedurally

barred from filing a habeas petition based on ineffective assistance of

counsel, a decision we affirmed. See Phoenix v. Matesanz, 189 F.3d 20

(1st Cir. 1999). After remand, the district court ruled on the merits

of Phoenix's petition, ultimately concluding that the state court

decisions did not involve an unreasonable application of the Strickland

v. Washington, 466 U.S. 668 (1984), standard for determining

ineffective assistance of counsel.

                             DISCUSSION

I.   Applying the habeas corpus statute

          In enacting the Antiterrorism and Effective Death Penalty Act

(AEDPA), Congress placed new restrictions on the power of federal

courts to grant writs of habeas corpus to state prisoners. As relevant

here, 28 U.S.C. § 2254(d)(1) was revised to provide:

          (d) An application for a writ of habeas corpus on
          behalf of a person in custody pursuant to the
          judgment of a State court shall not be granted
          with respect to any claim that was adjudicated on
          the merits in State court proceedings unless the
          adjudication of the claim -
          (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.




                                 -5-
          Until last Term, the Supreme Court had not been presented

with the opportunity to elucidate the meaning of the revised provision,

and the various courts of appeals, including this Court, had been left

to take our best shots. See, e.g., Green v. French, 153 F.3d 865 (4th

Cir. 1998); O'Brien v. DuBois, 145 F.3d 16 (1st Cir. 1998); Drinkard v.

Johnson, 97 F.3d 751 (5th Cir. 1996); Lindh v. Murphy, 96 F.3d 856 (7th

Cir. 1996). However, in Williams v. Taylor, 120 S. Ct. 1495 (2000),

the Supreme Court provided the first explicit guidance on the

construction of this section of the AEDPA, fortuitously in the very

context of a claim of ineffective assistance of counsel.1 It is to this

decision that we must now turn.

          Addressing a case out of the Fourth Circuit, Williams v.

Taylor, 163 F.3d 860 (4th Cir. 1998), the Supreme Court generally

upheld Green's interpretation of § 2254(d)(1), albeit with several

significant differences. The Court began by sustaining the Green

conception of the "contrary to" clause, holding that the clause applied

in two types of situations.    First, "a state-court decision will

certainly be contrary to our clearly established precedent if the state

court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases." Williams, 120 S. Ct. at 1519. For example,

1 In Williams, Justice O'Connor delivered the section of the majority
opinion interpreting § 2254(d)(1), see Williams, 120 S. Ct. at 1518-23,
but Justice Stevens delivered the section applying the Strickland test
to the facts at hand, see id. at 1512-16. Williams was decided after
the briefs were filed in this case.

                                 -6-
requiring a petitioner to meet a higher burden than that provided for

in Strickland would be contrary to clearly established Supreme Court

precedent.   See id. Second, "a state-court decision will also be

contrary to this Court's clearly established precedent if [it]

confronts a set of facts that are materially indistinguishable from a

[Supreme Court decision] and nevertheless arrives at a [different

result]." Id. at 1519-20. However, Justice O'Connor noted that the

run-of-the-mill state-court case, applying the correct legal rule to a

new set of facts, would not fit comfortably within the "contrary to"

clause of § 2254(d)(1). To place such a case within that clause would

sap the "unreasonable application" clause of any meaning.          See id.

          The Court then found that the Fourth Circuit was again

generally correct as to its interpretation of the "unreasonable

application" clause. Green held that an "unreasonable application" of

Supreme Court precedent occurs when (i) "the state court identifies the

correct governing legal rule . . . but unreasonably applies it to the

facts of the particular [case]," and (ii) when "the state court either

unreasonably extends a legal principle from [Supreme Court] precedent

to a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply." Id. at

1520 (citing Green, 153 F.3d at 869-70). The Court endorsed the first

approach, see id. at 1520-21, while withholding judgment on the second,

see id. at 1521.


                                 -7-
          However, the Court refused to endorse the Fourth Circuit's

determination of "what exactly qualifies" as an unreasonable

application of law under § 2254(d)(1). Green limited unreasonable

applications to those cases where all reasonable jurists would agree

that the state court application of law is unreasonable. See Green,

153 F.3d at 870. The Supreme Court concluded that such an approach

provides little assistance to federal courts, and is in fact misleading

in its subjectivity. See Williams, 120 S. Ct. at 1521 (noting that

under such a standard, any conflicting authority, including a 2-1

split, would foreclose review). Instead, the federal habeas court

"should ask whether the state court's application of clearly

established federal law was objectively unreasonable." Id. Although

"unreasonable" may be difficult to define, Justice O'Connor noted that

it is a term familiar to the legal world and to federal judges. At the

very least, an unreasonable application of federal law differs from an

incorrect application of federal law. See id. at 1522 (citing Wright

v. West, 505 U.S. 277, 287 (1992), for this distinction). In sum,

"[u]nder § 2254(d)(1)'s 'unreasonable application' clause, a federal

habeas court may not issue the writ simply because that court concludes

in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable."         Id.




                                 -8-
          Finally, Justice O'Connor noted that so-called "old rules"

under Teague v. Lane, 489 U.S. 288 (1989), would qualify as "clearly

established Federal law," the only caveat being that post-AEDPA, such

"old rules" could only stem from the Supreme Court's jurisprudence.

See Williams, 120 S. Ct. at 1523.

          The Supreme Court then applied its Williams v. Taylor

analysis to the denial of effective assistance of counsel, concluding

that "[i]t is past question that the rule set forth in [ Strickland]

qualifies as 'clearly established law, as determined by the Supreme

Court of the United States.'" Williams, 120 S. Ct. at 1512. The Court

noted that the Strickland test, "of necessity," requires a case-by-case

examination of the evidence, but held that such case-specific concerns

"obviate neither the clarity of the rule nor the extent to which the

rule must be seen as 'established' by this Court."         Id.

II.   The Strickland Standard

          The Court in Williams nicely summarized the relevant aspects

of the Strickland test:

                  [A] violation of the right [to effective
          assistance of counsel] has two components:
                  "First, the defendant must show that
          counsel's performance was deficient.         This
          requires showing that counsel made errors so
          serious that counsel was not functioning as the
          'counsel' guaranteed the defendant by the Sixth
          Amendment. Second, the defendant must show that
          the deficient performance prejudiced the defense.
          This requires showing that counsel's errors were
          so serious as to deprive the defendant of a fair


                                 -9-
          trial, a trial whose result is reliable."
          Strickland, 466 U.S. at 687.
                  To establish ineffectiveness, a "defendant
          must show that counsel's representation fell
          below an objective standard of reasonableness."
          Id. at 688. To establish prejudice, he "must
          show that there is a reasonable probability that,
          but for counsel's unprofessional errors, the
          result of the proceeding would have been
          different.     A reasonable probability is a
          probability sufficient to undermine confidence in
          the outcome." Id. at 694.

Williams, 120 S. Ct. at 1511-12.

          In Strickland itself the Supreme Court spoke in more detail

about the deferential level of scrutiny involved in this review,

particularly with respect to potentially strategic decisions made by

counsel. The Court cautioned as to the use of hindsight: "It is all

too tempting for a defendant to second-guess counsel's assistance after

conviction . . . , and it is all too easy for a court, examining

counsel's defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable." Strickland,

466 U.S at 689; see also United States v. Natanel, 938 F.2d 302, 310

(1st Cir. 1991) (cautioning that "[the fact that] counsel's selection

of a stratagem may, in retrospect, have proved unsuccessful, or even

unwise, is not the issue"). The defendant, as a result, must "overcome

the presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'" Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). Specifically, a court must judge



                                 -10-
the reasonableness of counsel's challenged conduct on the facts of the

case at the time of that conduct. Moreover, "counsel is strongly

presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." Id. at

690. In short, "strategic choices made after thorough investigation of

law   and   facts   relevant   to   plausible   options   are   virtually

unchallengeable."      Id. (emphasis added).2




2 We should note that " virtually unchallengeable" does differ from
"unchallengeable." Our overall task according to Strickland is to
determine whether the challenged "acts or omissions [are] outside the
wide range of professionally competent assistance." Strickland, 466
U.S. at 690. In making this statement, the Supreme Court cited with
approval the Court of Appeals approach to strategic decision-making,
which had in fact allowed challenges when "the choice was so patently
unreasonable that no competent attorney would have made it."
Washington v. Strickland, 693 F.2d 1243, 1254 (5th Cir. 1982).

                                    -11-
III.   Application to Phoenix's Appeal

          Under Strickland, we must ask whether defense counsel's

decision not to call either defense expert was an act that falls below

"an objective standard of reasonableness." However, if the state court

applied the correct test, we cannot answer this question de novo. See

Williams, 120 S. Ct. at 1519-20 (holding that application of the

Strickland test is under the unreasonable application prong of §

2254(d)(1)). Although Justice Fried, as single gatekeeper justice of

the SJC, did not cite Strickland in his analysis, it is clear from his

language that his decision denying Phoenix's motion was based on the

judgment that the failure to call Wraxall was a strategic choice:

          It is this strategy which defendant now claims
          amounted to ineffective assistance of counsel.
          The defendant claims that if only the expert
          witness, Dr. Wraxall, had been called to testify,
          it would have had a damaging effect on the
          Commonwealth's own expert testimony regarding the
          crucial blood testimony. But the subject of the
          reliability of the Commonwealth's testimony on
          this score had been so thoroughly canvassed both
          at trial, by cross-examination by defendant's
          counsel, and then examined by the full court on
          plenary review, that I think the claim of
          ineffectiveness of counsel is so far-fetched as
          to be insubstantial.

Phoenix v. Commonwealth, No. SJ-96-0571, at 4-5 (SJC Memorandum, Fried,

J., May 8, 1997). The strategy to which Justice Fried referred was

described in the prior decision of the full SJC. See Commonwealth v.

Phoenix, 409 Mass. 408, 421 n.8 (1991). In denying leave to admit into



                                 -12-
the record on direct appeal the Wraxall affidavit, the SJC referred to

defendant's arguments that he did not have Wraxall testify because of

the expense and because of his belief that Schanfield's testimony would

expose the unreliability of the critical test. The court concluded

that "[t]hese considerations were purely ones of trial strategy, and,

therefore, there is no reason to permit the filing of the affidavit."

Id.

          As for the fingerprint evidence, Judge Moriarty of the

Massachusetts Superior Court plainly found that the failure to call

MacDonnell was a strategic one. See Commonwealth v. Phoenix, No. 87-

068, at 8 (Superior Court Memorandum, Moriarty, J., March 18, 1996)

("[Bennett] made a tactical decision - and probably a wise one.").

          Hence, we must assess whether the respective state court

applications of Strickland to these ineffective assistance claims was

in fact objectively unreasonable. In other words, were the state court

findings that Bennett made strategic choices in not calling either

Wraxall or MacDonell reasonable determinations? Cf. Tucker v. Catoe,

221 F.3d 600 (4th Cir. 2000) (applying Williams/Strickland analysis in

a similar manner); Barnabei v. Angelone, 214 F.3d 463, 469 (4th Cir.

2000) (recognizing "the legal effect of the prior state court

adjudication while independently reviewing the issues raised").




                                 -13-
          We make this assessment under the guidance of our decision

in Lema v. United States, 987 F.2d 48, 53 (1st Cir. 1993).3 In Lema,

we denied an ineffective assistance claim based on counsel's failure to

call three witnesses proposed by the defendant. We noted that "[t]he

decision whether to call a particular witness is almost always

strategic, requiring a balancing of the benefits and risks of the

anticipated testimony." Id. at 54. "Where the prosecution's case is

less than compelling . . . the risk of 'rocking the boat' may warrant

a decision by trial counsel to forego the presentation of further

defense testimony, even favorable testimony." Id. (citing Johnson v.

Lockhart, 921 F.2d 796, 800 (8th Cir. 1990)). Moreover, choices in

emphasis during cross-examination are prototypical examples of

unchallengeable strategy. See Matthews v. Rakiey, 54 F.3d 908, 916-18

(1st Cir. 1996).

          We now examine each claim in turn.

          A.   The Fingerprint Evidence

          In response to the prosecution experts' identification of his

client's prints and exclusion of another suspect's prints, Bennett

cross-examined the Commonwealth's two fingerprint experts both at voir



3  Although decisions issuing from this Court are not "clearly
established" for the purposes of § 2254(d)(1) because they do not issue
from the Supreme Court, they provide significant insight on what
constitutes reasonableness for a particular fact pattern. Cf. Clark v.
Stinson, 214 F.3d 315, 327 n.8 (2d Cir. 2000) (citing New York state
law for guidance as to the reasonableness of waiver).

                                 -14-
dire and at trial. Bennett challenged whether the paper bag had been

treated for prints at the appropriate time and in the appropriate

manner; he exposed that the expert worked only from photographs, rather

than from the paper bag itself; and he raised questions about the chain

of custody.    Bennett also spent a significant amount of time

questioning the methodology of one of the Commonwealth experts

(Shiflett), particularly with regard to discrepancies between the paper

bag print and the comparison print.       In particular, his cross-

examination prompted Shiflett to testify that the quality of the print

had limited his observations and that the print on the paper bag was

"similar to" but not "identical" to the print taken from Phoenix used

for purposes of comparison.

          Defense expert MacDonnell submitted an affidavit stating

that, in his opinion, the "quality of the fingerprint evidence is

inadequate . . . to make a positive ID," and as a result he could not

"conclude with certainty that the unknown [print] is not from Phoenix."

MacDonnell could only testify in response to the prosecution's experts

that identification of the fingerprint was impossible, in his opinion.

He could not identify the fingerprint as that of another potential

suspect. He could not say, for certain, that the fingerprint did not

belong to Phoenix. Although Bennett had not thoroughly discredited the

Commonwealth's fingerprint experts at trial, he had made substantial

progress in this direction. It is possible that, given his progress


                                 -15-
during cross-examination, the limitations of MacDonnell's testimony,

and the threat of exhaustive cross-examination of his own expert,

Bennett made a strategic decision not to call him. Judge Moriarty of

the Massachusetts Superior Court so concluded. We cannot say that such

a finding was objectively unreasonable, even if we might have found

differently. See Williams, 120 S. Ct. at 1522 (distinction between

"incorrect" and "unreasonable"); see also Tucker, 221 F.3d at 614

(finding that on a close issue, the appellate court can disagree with

the state court without the state court decision having been

unreasonable); Barnabei, 214 F.3d at 469 (same).

          We also cannot conclude that Bennett's failure to send

MacDonnell additional photographs for review during and after trial

constituted ineffective assistance of counsel. Although it turned out

that MacDonnell's opinion of the additional photographs would probably

have been helpful at trial, Bennett's choice not to pursue further

investigation on this front was a reasonable one at trial.

MacDonnell's partially provided expert opinion had lowered Bennett's

expectations and Bennett had adequately cross-examined the Commonwealth

witnesses. Even with the stronger evidence, MacDonnell could still not

testify that the print did not belong to Phoenix. Defense counsel is

allowed to make strategic decisions, within the wide bounds of

professional competence, as to which leads to follow up, and on which

areas to focus his energies. This is especially true during trial,


                                 -16-
when time is short. See, e.g., Genius v. Pepe, 147 F.3d 64, 67 (1st

Cir. 1998).    Given our understanding of Bennett's failure to send

MacDonnell additional photographs as a strategic choice at trial, we

cannot find the state court's decision on this issue an unreasonable

application of Strickland.

          B.   The Blood Evidence

          The blood evidence presents a more difficult case, simply

because the defense expert affidavit promised much more. Wraxall

offered to testify that: (1) the blood on the paper bag was not the

result of "blowback" (i.e., blood splattered from the victim after he

was shot); (2) the results of the May 11 test were "scientifically

meaningless" and "not the proper basis for a scientific opinion;" (3)

prosecution expert Schanfield's methodology was unreliable in important

aspects; (4) taken as a whole, the blood evidence was not consistent

with the victim, and Schanfield's statement to the contrary was

misleading; and (5) the blood could have been taken from anyone in the

population. Wraxall also noted that he would not have been able to

perform independent testing on the samples, because Schanfield had

irreparably altered them and the prosecutors had requested their

return.

          At the voir dire, Bennett spent several hours cross-examining

Schanfield and posed significant questions to the reliability of his

testimony. As a result, the trial judge only allowed Schanfield to


                                 -17-
make conclusions based on the May 11 tests. At trial, Bennett engaged

in further cross-examination of Schanfield. Bennett was able to (1)

expose problems with the control samples; (2) suggest what the problems

with controls might mean for the reliability of the test as a whole;

(3) prompt Schanfield to testify that he could not say, based on the

May 11 test, that the blood was that of Green; (4) clarify that the

test had yielded little in the way of interpretable results; (5)

indicate inconsistencies in the testing of one potentially relevant

blood allotype (the "N" allotype); (6) get Schanfield to describe

certain inconsistencies as "false positives;" and (7) get Schanfield to

admit inconsistencies among tests taken just 30 minutes apart. At the

very least, even upon reading a cold record, Bennett's cross-

examination at trial posed significant questions to the accuracy and

integrity of Schanfield's test and his interpretation of the test

results. The mere fact that Bennett's cross-examination failed to

persuade the jury of Phoenix's innocence is not enough to establish

ineffective assistance.

          At best, Wraxall's testimony could have added to Bennett's

cross-examination by further discrediting Schanfield. Wraxall could

have provided additional evidence challenging Schanfield's scientific

methods and testing. He could have given the jury a reason to believe

that the blood was not consistent with Green's. The jury would have

heard that, because the blood was not the result of "blowback," it had


                                 -18-
not been deposited on the paper bag in the manner Schanfield suggested.

However, Wraxall could not testify that the blood was not Green's; in

fact, he would not testify that the blood belonged to or did not belong

to any specific person. In short, he would support Bennett's cross-

examination attempt, but not provide any significant new facts or

evidence that might lead the jury to an alternate explanation. As

such, we can see that Bennett might have made a strategic decision not

to call him: to call Wraxall would reinforce the lack of an alternative

explanation, would open his own expert to cross-examination, and might

simply do no good. See United States v. McGill, 11 F.3d 223, 227-28

(1st Cir. 1993) (no ineffective assistance claim based on counsel's

decision not to call witness, after "skillful cross-examination" had

elicited much the same opinion evidence that counsel had hoped to

establish through defense witness). Upon consideration of the record

and Wraxall's affidavit, we cannot find that Justice Fried's

understanding of Bennett's action as within the bounds of permissible

strategic choice is objectively unreasonable. Thus we may not grant a

writ of habeas corpus on this basis.

          We also cannot conclude that the state court's refusal to

grant a new trial based on ineffective assistance of counsel was

unreasonable based on Bennett's so-called "promise" to the jury.

Phoenix bases this claim on a sentence of the opening statement in

which Bennett noted that "if anything, tests will show that . . . some


                                 -19-
of the blood that was on the bag . . . could not have been the blood of

Ray Green."   It is true that no testimony explicitly showed this

"promised" fact.    However, given that (i) Bennett used the "if

anything" disclaimer; (ii) Wraxall would not have testified as

supposedly promised, but only that Schanfield's testing was fatally

flawed; and (iii) Bennett's cross-examination of Schanfield had

attempted, and potentially achieved, the same result, we cannot

conclude that Bennett either made a promise or that any promise he made

went unfulfilled. Moreover, our cases that premise a habeas writ on an

unfulfilled promise during opening argument generally require greater

specificity in the promise and greater contemporaneousness between the

promise and jury deliberations. Compare Anderson v. Butler, 858 F.2d

16, 19 (1st Cir. 1988) (ineffective assistance found upon explicit

promise to call psychiatric witness made a day prior to jury

deliberations, where voir dire had focused on jury willingness to

accept such testimony), with McGill, 11 F.3d at 227-28 (decision not to

call previously promised witness who had "feet of clay" not ineffective

assistance). The promise here was neither "dramatic" nor was the

indicated testimony "strikingly significant." Anderson, 858 F.2d at

17.

                             CONCLUSION

          We note that in the pre-Williams world, we would occasionally

remand to the district court for hearings on whether an action was


                                 -20-
within the allowable bounds of strategic choice or not. See, e.g.,

United States v. Rodríguez-Rodríguez, 929 F.2d 747, 752 (1st Cir.

1991). The holding of Williams dictates that we do not do so here.

Our only question is whether the state judge's decision that defense

counsel made a permissible strategic choice was objectively reasonable.

Because we find that it was, we affirm the district court's denial of

the writ of habeas corpus.

          Affirmed.




                                 -21-
