          United States Court of Appeals
                      For the First Circuit

No. 11-1037

                           ERIC BROWN,

                      Petitioner, Appellant,

                                v.

                        STEVEN J. O'BRIEN,
        Superintendent of Old Colony Correctional Center,

                      Respondent, Appellee.


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

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                              Before

                    Boudin, Selya and Howard,

                         Circuit Judges.


     Catherine J. Hinton with whom Rankin & Sultan was on brief for
appellant.
     Jessica V. Barnett, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief for appellee.



                         January 24, 2012
          BOUDIN, Circuit Judge.        Eric Brown, now in state prison

serving two life terms for first degree murder, was denied habeas

corpus relief in the federal district court, Brown v. O'Brien, 755

F. Supp. 2d 335 (D. Mass. 2010), and now appeals. The factual

background,   recounted   in   detail   in   the   state   court   decision

upholding his convictions, Commonwealth v. Brown, 872 N.E.2d 711

(Mass. 2007), is readily summarized.

          In the early morning of June 16, 1996, two men were shot

at close range with a shotgun in Boston's South End and both were

killed.   The day before the murders, Brown had accompanied his

friend Dwight Bobbitt, a security guard who had the credentials to

obtain firearms, to a Boston sporting goods store.            After Brown

supplied Bobbitt with money, Bobbitt purchased a shotgun selected

by Brown, together with shells, and turned both the weapon and the

ammunition over to Brown.      Brown, 872 N.E.2d at 716-17.        Bobbitt

thereafter reported the shotgun as stolen, but later admitted he

had purchased it for Brown.     Id. at 716 n.15.

          Then, sometime after midnight on June 16, 1996, Brown in

the company of several friends (including Bobbitt) fired the

shotgun into the air several times outside of his house in Roxbury.

Brown was back inside the house when police arrived to investigate,

and after they left he returned outside wearing a thigh-length

green jacket and black boots.       Brown again fired into the air




                                  -2-
several times and then left on foot toward Boston's South End

carrying the shotgun with him.     Brown, 872 N.E.2d at 716-17.

          Witnesses in the South End testified that in the early

morning hours on Appleton Street, a number of people were outside

socializing and walking about.   At about 3:30 in the morning, a man

approached one of these people, Athos Oliveira, and shot him twice

with a shotgun, the second shot hitting Oliveira in the face and

killing him.    The assailant continued down the street, encountered

one Thomas Meyer, killed him with a shot to the back of the head,

and left the scene.    Brown, 872 N.E.2d at 717.

          Five witnesses who either heard or saw one or the other

of the two crimes--and who eventually testified at Brown's trial--

could not identify Brown as the man who killed Oliveira and Meyer.

But most of the witnesses identified the assailant as a black male

and one identified the assailant as having "short African-American

hair"; another said he was wearing a green, three-quarter length

jacket; two said that he was about 5'8'' or so (Brown was in fact

5'7''); and one said he was 160 pounds (Brown was 150 pounds).

Although one said the jacket was waist-length, three agreed it was

thigh-length.

          Ten days after the crimes, on June 26, 1996, a policeman

stopped Brown for erratic driving in a community not very far from

Boston and eventually discovered a shotgun and a spent shell on the

floor of the van he was driving.    Brown, 872 N.E.2d at 718.   Shell


                                 -3-
casings recovered at the scenes where Oliveira and Meyer died were

matched   to   the   shotgun   recovered    from   Brown's    van;   Bobbitt

confirmed that this was the weapon he had bought and also that a

green jacket that police found in Brown's apartment matched the

color of the one Brown had worn on the night of the shootings.

           Brown was indicted in August 1996 but was not put on

trial until March 2001.        In the interim, Brown was committed to

Massachusetts' Bridgewater State Hospital ("Bridgewater") for an

extended period to determine his competence to stand trial.

Successive conflicting determinations as to competency followed

along with re-commitments for more observation.1             Finally, after

hearings in January and March 2001, he was twice determined to be

competent to stand trial by the state judge, although defense

experts and a court clinician disagreed. A trial commenced in late

March 2001 and lasted for four weeks.

           At trial, the principal defense witness (Dr. Rosmarin),

a   forensic   psychiatrist    from    Massachusetts   General    Hospital,

testified that Brown was a paranoid schizophrenic who exhibited

prominent symptoms of the disease and suffered from delusions of

persecution, a horror of homosexuality, and voices telling him to


      1
      Brown was initially found competent to stand trial in
February 1997 but was then re-committed to Bridgewater at its
request for further observation and treatment.       After further
hearings and evaluations, he was held incompetent to stand trial in
April 1998 and re-committed to Bridgewater. Brown was then held
competent in December 1998 but then re-committed for further
observation.

                                      -4-
kill those he believed to be "sexual immoralizers."        He also gave

his opinion that at the time of the deaths, Brown was not sane and

lacked   criminal   responsibility     under   the   standard   used   in

Massachusetts.2

            Two treating psychiatrists and a treating psychologist

from Bridgewater agreed that Brown was a paranoid schizophrenic

suffering from delusions, and described the symptoms they had

observed during his time at Bridgewater.       Supporting evidence from

friends and family members confirmed Brown's mental and emotional

deterioration in 1995 and 1996.        But several witnesses for the

prosecution testified on rebuttal that Brown seemed normal to them

both before and after the killings and the prosecution's expert

testified, albeit rather summarily and after limited exposure to

him, that Brown was not psychotic on the day of the shootings.

            The jury convicted Brown in 2001 of two separate counts

of first degree murder, as well as other less serious firearms-

related offenses, and on each murder count he received a life

sentence.    The Supreme Judicial Court of Massachusetts ("SJC")


     2
      Commonwealth v. DiPadova, 951 N.E.2d 891, 897 (Mass. 2011)
("Under the McHoul test, a defendant is not criminally responsible
for his actions—and, therefore entitled to a verdict of not
guilty—if, at the relevant time and due to a mental illness (mental
disease or defect), he lacks the substantial capacity to appreciate
the wrongfulness of an action or to act in conformity with the
law." (citing Commonwealth v. McHoul, 226 N.E.2d 556 (Mass.
1967))).




                                 -5-
affirmed the conviction.        Brown, 872 N.E.2d 711.      Brown then filed

a habeas petition in the federal district court, 28 U.S.C. § 2254

(2006).       The magistrate judge recommended that the habeas petition

be dismissed on the merits, and the district judge agreed, but also

granted a certificate of appealability as to four different issues,

which are now before us.        Brown, 755 F. Supp. 2d at 337.

               A federal court may grant a writ of habeas corpus when a

state court adjudication 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   "resulted   in   a   decision   that   was   based   on   an

unreasonable determination of the facts."            28 U.S.C. § 2254(d)(1)-

(2).3       There are additional provisions relating to factual issues,

id. § 2254(e)(1), but any ambiguity resulting from the interaction

of the factual provisions, see          Wood v. Allen, 130 S. Ct. 841, 848-

49 (2010) (noting circuit split), does not impact the outcome here.

               Sufficiency of the evidence.        Brown's first argument is

that under Jackson v. Virginia, 443 U.S. 307 (1979), no reasonable

jury could find that he is the person who committed the murders.



        3
      Under the "law" prong, a state court's decision is "contrary
to" federal law either if it "arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts."       Williams v.
Taylor, 529 U.S. 362, 413 (2000). Review under the "fact" prong is
limited to "the record that was before [the] state court." Cullen
v. Pinholster, 131 S. Ct. 1388, 1400 (2011).

                                        -6-
The SJC rejected this claim on the merits, Brown, 872 N.E.2d at

723-24, so our review is deferential.             But, in this instance,

deference to the state court is beside the point: if an identical

insufficiency of evidence claim were made on direct appeal after a

federal trial, the evidence would be entirely sufficient to support

a jury verdict finding that Brown shot the two victims.

           Brown    says    the     prosecution   established,     at   most,

"circumstantial evidence" connecting Brown and the gun used in the

shootings.     The prosecution's case was "circumstantial" in the

limited sense that no one at the scene testified in court to

recognizing Brown as the shooter; but there was direct eyewitness

evidence (1) that the man was similar to Brown in race, height,

weight, hair style and green jacket; (2) that Brown left for the

South End with his shotgun an hour or two before the murders; (3)

that he possessed that shotgun less than two weeks later; and (4)

that the shell casings at the scene matched his weapon.

           True, the credibility of Bobbitt (who testified to the

purchase of the gun and the incident in front of Brown's house

before the murders) was open to attack, although his version of the

gun purchase was not effectively challenged.                The eyewitness

testimony as to identity of the shooter was in some respects vague;

and certainly the jury could have doubted Brown's sanity. But this

last   issue   is   not    before   us   and   Brown's   plainly   disturbed

personality, if the disturbance fell short of insanity, provided an


                                      -7-
explanation for what otherwise might be viewed as a senseless, and

therefore improbable, crime.

          Brown's counsel at trial conceded to the jury in closing

that Brown had done the shootings, and sensibly concentrated on

persuading the jury that Brown was insane.    In his presentation of

the case, defense counsel provided strong expert and lay testimony

that Brown was insane which would likely have persuaded many

juries--especially because the prosecution had a bare minimum of

expert evidence on its side and appeared to rely heavily on the

doubtful inference that Brown cannot have been insane because he

was fairly organized and systematic.

          However, under the Massachusetts standard (see note 2,

above), showing a severe mental illness is not conclusive; the jury

must also decide whether the illness prevented the defendant from

appreciating the wrongfulness of his actions or conforming his

conduct to the requirements of the law.   Commonwealth v. DiPadova,

951 N.E.2d 891, 897 (Mass. 2011).      The main defense expert said

Brown met this standard; the prosecution expert said that Brown was

not even psychotic on the day of the murders; and the SJC upheld

the jury verdict.   Brown, 872 N.E.2d at 731.    The insanity issue

was not pressed in the habeas proceeding.

          Instead, in this court, Brown presses his attack on the

sufficiency of the identification evidence along two lines. First,

counsel points out that under Massachusetts law, the evidence can


                               -8-
be found insufficient based solely on what is presented in the

prosecutor's opening case (if the defendant files a motion at the

close of the prosecution's case);4 and, on this premise, Brown's

counsel urges that Jackson should be applied so as to disregard any

evidence that came in only later through the defense case or

prosecution rebuttal--where a limited amount of evidence adverse to

Brown was admitted.

           But this Massachusetts practice is not imposed by federal

constitutional law.    See LaMere v. Slaughter, 458 F.3d 878, 882

(9th Cir. 2006); Hernandez v. Cowan, 200 F.3d 995, 998 (7th Cir.

2000).    And Jackson does not say or even suggest that its test is

to be applied to the prosecution's case but asks instead whether

"after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."     443

U.S. at 318-19.     Accord McDaniel v. Brown, 130 S. Ct. 665, 672

(2010).

           Second, Brown relies on O'Laughlin v. O'Brien, 568 F.3d

287 (1st Cir. 2009), cert. denied, 130 S. Ct. 1142 (2010), where


     4
      Mass. Crim. Pro. R. 25(a); see also Commonwealth v. Berry,
727 N.E.2d 517, 522 (Mass. 2000). By contrast, under federal
practice (and in the majority of states) a defendant can challenge
the government's opening case after it is presented but, if the
defendant then puts on his own case, any challenge to the
sufficiency of the evidence must be based on the full record
including anything presented in the defense case. See State v.
Perkins, 856 A.2d 917, 932 n.23 (Conn. 2004) (listing federal and
state practices).

                                 -9-
this court on habeas review upheld a Jackson challenge.            In that

case, the defendant was directly connected with a vicious assault

only by some small blood stains in the defendant's apartment linked

by DNA testing to him--not the victim--and his baseball bat--

presumptively the murder weapon--found in the woods, also with

blood stains which yielded no conclusive results after DNA testing.

Id. at 294.

           In practice, Jackson challenges are rarely upheld on

habeas and O'Laughlin is a rare exception.          The evidence showing

that Brown committed the crime, described above, was far stronger

than in O'Laughlin.       The only truly close issue as to guilt was

Brown's sanity, and, as noted earlier, that issue was resolved

against   Brown   based   on    what   can   charitably   be   regarded   as

conflicting expert evidence, and anyway that issue is not before

us.

           Intoxication.       Brown does raise a related state of mind

issue on this appeal.      Specifically, Brown claims that the trial

court should have granted his request for a jury instruction on

intoxication. At trial, psychiatrists for both the defense and the

prosecution made mention of Brown's drinking on the night of the

crimes.   But, although Brown submitted a written request for an

intoxication instruction, the trial judge's instructions to the

jury did not include one on intoxication.        Brown, 872 N.E.2d at 728

& n.39.


                                    -10-
              Massachusetts defines first degree murder as requiring

premeditated malice, Mass. Gen. Laws ch. 265, § 1, and it endorses

a jury instruction allowing the jury to consider intoxication to

negate the required scienter; but such an instruction is required

only       when    there      is   evidence     presented      of   intoxication      so

debilitating it prevents the defendant from forming the requisite

intent.       Commonwealth v. Morgan, 663 N.E.2d 247, 250-51 (Mass.

1996).      On direct appeal, the SJC found there was no such evidence

in this case.          Brown, 872 N.E.2d at 727-28.

              Brown's      principal      claim   here   is     that    the   "no    such

evidence" ruling was an "unreasonable determination of the facts."

28 U.S.C. § 2254(d)(2).             Ordinarily, errors of state law are not

the basis for federal habeas relief, Estelle v. McGuire, 502 U.S.

62, 71-72 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984), but

Brown also argues that the failure to give the instruction where

the facts and law made it appropriate violated his due process

rights.5      In all events, no evidence of disabling intoxication was

presented         in   this    case--or    at   least    the    state    court      could

permissibly so find.




       5
      See generally In re Winship, 397 U.S. 358, 364 (1970)("[T]he
Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime."); see also Gilmore v. Taylor, 508 U.S. 333,
343-44 (1993); Sandstrom v. Montana, 442 U.S. 510, 512-14, 521
(1979); Commonwealth v. Vives, 854 N.E.2d 1241, 1243-45 (Mass.
2006).

                                           -11-
               True, Brown points to testimony of the prosecution and

defense psychiatric experts--Dr. Rogers and Dr. Rosmarin--both of

whom       adverted    to   statements   Brown   himself    made    during   their

examinations that he had drunk vodka and beer on the night of the

murders; Dr. Rosmarin also mentioned some intake of marijuana; and

Dr.    Rogers,    negating     insanity,    referred   to   Brown's    "drinking

excessively" (and homophobia) to explain the killings.

               But Brown's statements to the doctors were admitted only

to disclose the basis for their expert opinions on sanity and not

for the truth of Brown's statements.             Brown, 872 N.E.2d at 728.

The distinction was conveyed to Brown's jury and is not directly

challenged in this case. Commonwealth v. Sama, 582 N.E.2d 498, 502

(Mass. 1991), cited to us by Brown, did require an instruction but

there the expert gave his own opinion that the defendant might have

been hallucinating at the time of the crimes as a result of

substance abuse.

               Thus,    strictly   speaking, practically       no    evidence   of

Brown's drinking was properly before the jury.6                     Even if the

statements were considered as substantive evidence, the SJC pointed

out that



       6
      The prosecutor seems to have ignored the distinction in his
closing by arguing that drinking and marijuana, rather than
insanity, might have explained Brown's actions; but no objection
was made by the defense; and the SJC held that "to the extent the
argument was improper, it did not create a substantial likelihood
of a miscarriage of justice." Brown, 872 N.E. 2d at 728 n.41.

                                         -12-
          none of this evidence--or any other evidence
          admitted at trial--demonstrated how much or
          for how long Brown had been drinking on the
          night of the shootings or what effect any
          alcohol that he may have ingested had on him
          or whether his ability to form the requisite
          criminal intent was impaired.

Brown, 872 N.E.2d at 728 (internal citation omitted).    Assuming a

federal issue exists, the state court's fact-based assessment

rejecting such an instruction was not "unreasonable," given the

lack of any specific testimony about a debilitating impact.   Wood,

130 S. Ct. at 849.

          Competence.   Brown's third argument on habeas is that he

was not competent to stand trial, or at least that the procedures

used to determine his competency were defective.     Competence to

stand trial is a narrowly focused concept: a defendant may have all

kinds of mental afflictions, but he can avoid trial only if he

lacks "sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding-and . . . a rational

as well as factual understanding of the proceedings."      Dusky v.

United States, 362 U.S. 402, 402 (1960).

          As already explained, after his arrest Brown was for

several   years   confined   to    Bridgewater.    The   competency

determination now before us was initially made in January 2001 and

then reaffirmed after a hearing in March 2001 shortly before trial.

The finding was made despite affidavits from Brown's counsel

stating that Brown was "unable to consult with his attorneys with


                                  -13-
a reasonable degree of rational understanding" and did not have a

rational understanding of the proceedings against him.

               The defense expert, Dr. Price, based on examinations in

February and March 2001, agreed.              She stated that Brown was

suffering from chronic paranoid schizophrenia, was delusional,

believed he was the Anti-Christ, and heard voices.             She said that

Brown appeared to have deteriorated significantly since his last

evaluation, was inattentive, and would have serious difficulties

following the proceedings and preparing a defense.             She also said

that       Brown   would   likely   substantially   improve   if   he   resumed

medication.7

               The court's clinical psychologist evaluated Brown on

March 7, and also found him incompetent.            He summarized his review

of Brown's past evaluations as follows:

               [T]he prevailing clinical opinion is that
               [Brown] indeed can be competent, particularly
               when he is appropriately medicated. Under the
               influence of anti-psychotic medication his
               symptoms are significantly improved although
               never completely absent. . . .          [H]is
               competency can fluctuate under a number of
               different conditions.


       7
      Brown ceased taking medication in mid-February 2001 (before
Dr. Price's first evaluation) so that he could "concentrate more
easily on court proceedings"; another state judge ordered Brown be
forcibly medicated on March 14, the day after the first day of the
competency hearing. In Massachusetts, "a distinct adjudication of
incapacity to make treatment decisions (incompetence) must precede
any determination to override patients' rights to make their own
treatment decisions."   Rogers v. Comm'r of the Dept. of Mental
Health, 458 N.E.2d 308, 314-315 (Mass. 1983).


                                       -14-
          The psychologist reported that while Brown could respond

well to short, concrete questions, he could not process questions

that were longer or complex.           He concluded that Brown could

understand   only   simple    concepts,   did   not   have   more   than   a

superficial understanding of key legal processes (for example, he

could name the two possible defenses as "Not guilty by Insanity"

and "Not-There" but could not explain how he might choose between

the two), and was not currently competent and would only worsen

without medication.

          After receiving these reports, the judge ordered another

evaluation by the Commonwealth's expert, a forensic psychiatrist.

Dr. Annunziata met with Brown for two evaluations (both when Brown

was still un-medicated), and testified that Brown was competent to

stand trial. Dr. Annunziata said that while Brown did hear voices,

they were not overly distracting, and that during the evaluation,

Brown was able to concentrate and focus, had a good short-term

memory,   and   showed   no   "gross   impairment     in   judgment."8

          Despite further defense testimony by Dr. Price after

another brief interview with Brown, the trial judge ruled on March

23, 2001, that Brown was competent, expressly relying solely on Dr.


     8
      However, Dr. Annunziata admitted that he had not reviewed
Brown's medical records from his four-and-a-half years at
Bridgewater, and that he did not ask Brown "many complex
questions." He also testified that when Brown's attorney asked him
a moderately complex question--specifically, whether Brown
remembered three motions from a hearing the day before--Brown could
not recall any.

                                  -15-
Annunziata's testimony, to which he gave "great weight and credit,"

and his own observations of the defendant's conduct during the

competency hearing.       On direct appeal, the SJC upheld Brown's

competency, finding that determination within the province of the

trial judge who heard the witnesses and observed the defendant.

Brown, 872 N.E. 2d at 722-23.       The question for us is whether this

result is so clearly unreasonable that it should be set aside.

           Habeas challenges to state competency findings fail with

remarkable regularity,        40 Geo. L.J. Ann. Rev. Crim. Proc. at 468

n.1432 (2011) (citing cases), partly because habeas review is

deferential    and   partly    because   the   trial    judge   has    seen the

witnesses and the defendant. E.g., United States v. Figueroa-

Gonzalez, 621 F.3d 44, 48 (1st Cir. 2010).                   The ability to

understand the proceedings and assist counsel is both a matter of

degree   and   one   in   which    trial   judges,      as   well     as   health

professionals, have pertinent expertise.               See United States v.

Ahrendt, 560 F.3d 69, 75 (1st Cir. 2009), cert. denied, 129 S. Ct.

2815.

           Here, Brown was surely impaired and, at the same time,

all experts agreed that he at least possessed some understanding of

the situation and some ability to reason about it and discuss

issues with counsel.9     No one knows just how to measure precisely


     9
      Mental illness, limited intelligence, emotional troubles and
even amnesia as to pertinent events afflict many defendants, and
they do not automatically prevent a defendant from being tried or

                                    -16-
that "sufficient present ability" to consult and understand of

which the Supreme Court spoke in Dusky.            And, of course, a

defendant who refuses medication can worsen his own condition until

forcibly medicated; Brown, as it happens, was required to resume

medication before his trial commenced.        See note 7, above.

          A raving lunatic may not be tried, however patently

guilty and however hopeless his defense.       But Brown is in a gray

area, somewhat impaired; and although "prejudice" is not part of

the equation, it is hard to see what more Brown could have

contributed to the thorough "all fronts" defense he received.

Competence to stand trial, as defined by the Supreme Court, is

decidedly a functional concept.          In the end, the state court

finding was contestable, but it was not "unreasonable" under the

deferential habeas standard.

          Brown   also   brings   a   procedural   claim   relating   to

competency, saying that due process obliged the trial judge, as the

defense requested, to review Brown's Bridgewater medical records

and a tape of the Rogers hearing relating to forced medication, see

note 7, above, before ruling on competency.        But one of Brown's

experts testified at the hearing to the contents of his medical

records and the other two had worked with him at Bridgewater; one


pleading guilty. E.g., United States v. Rodríguez-León, 402 F.3d
17 (1st Cir. 2005) (limited intelligence); Wright v. Sec'y for the
Dep't of Corr., 278 F.3d 1245 (11th Cir. 2002) (mental illness),
cert. denied, 538 U.S. 906 (2003); Wilson v. United States, 391
F.2d 460 (D.C. Cir. 1968) (amnesia).

                                  -17-
of those had recommended that the Rogers hearing be held and

testified there.    Brown has not pointed to any additional specific

information (material or otherwise) that would have been revealed.

          In a further procedural challenge, Brown argues that

after the court clinical psychologist found him incompetent on

March 7, 2001, Massachusetts law mandated an additional extended

observation   and   evaluation   at   Bridgewater   before   determining

competency.   Mass. Gen. Laws ch. 123, § 15(b).      As the SJC pointed

out, section 15(b)'s language is permissive, not mandatory, and it

was reasonable to find that in light of the already-completed

evaluations and extensive medical record, no further observation

was "necessary."    Brown, 872 N.E.2d at 760.

          Voluntariness.    Finally, Brown claims that the district

court violated due process by failing to hold a sua sponte hearing

on the voluntariness of various statements made by Brown--seemingly

statements he made between June 15 (the day before the killings)

and June 26, 1996 (the day he was apprehended outside of Boston).

These statements, which came into evidence through the testimony of

various prosecution witnesses, are not directly quoted in Brown's

brief, but are listed in a similar claim made in the SJC.        Brown,

872 N.E.2d at 725 n.35 (listing statements).

          These included Brown asking Bobbitt to purchase a shotgun

for him the day before the killings and indicating the one he

wanted, and a denial of involvement to Bobbitt the day after;


                                  -18-
statements made on June 18 (two days after the murders) to an

acquaintance, Samuel Lewis, indicating Brown was talking and acting

normally; and statements to the police officers who apprehended

Brown after a traffic stop outside of Boston (including both

answers to routine booking questions and Brown's statements when

stopped for the traffic violation that he was returning from a

party after dropping two girls at home).

          The judge allowed the statements in evidence over a

defense objection after ruling (outside of the presence of the

jury) they were made voluntarily, but ultimately instructed the

jury that it should determine whether the statements were voluntary

and must disregard any statement that was not voluntary.            Brown

argues that the judge erred in not holding a separate sua sponte

voluntariness inquiry in light of the evidence of his mental

illness at the time the statements were made.

          Massachusetts law so requires under certain conditions,

Commonwealth v. Sheriff, 680 N.E.2d 75, 79-80 (Mass. 1997), but the

SJC held none was required here (and the trial court ultimately

instructed   the   jury   to   determine   the    voluntariness   of    the

statements), Brown, 872 N.E.2d at 726-27. As we explained earlier,

state law errors are not independent bases for habeas review.

Given the context of the statements, it is far from clear that a

federal constitutional     issue   could   be    made out.   See,      e.g.,

Colorado v. Connelly, 479 U.S. 157 (1986).



                                   -19-
          In   any   case,   the    most   critical   of   the   statements

initially contested appear to be those made to Bobbitt while

purchasing the gun for Brown, but the SJC held these statements--to

which Bobbitt himself testified--were not subject to voluntariness

analysis because they were "part and parcel of the crime."           Brown,

872 N.E.2d at 726.       The other statements of Brown, made to

witnesses who testified to his seeming rationality, merely provided

the basis for their own assessment and--in a debatable case--are

admissible under state law.        Sheriff, 680 N.E.2d at 79-80.

          Affirmed.




                                    -20-
