          United States Court of Appeals
                     For the First Circuit

No. 15-2404

                         CHARKEEM HYATT,

                     Petitioner, Appellant,

                               v.

                   BRUCE GELB, Superintendent,

                      Respondent, Appellee.


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

          [Hon. William G. Young, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
              Torruella and Barron, Circuit Judges.



     David M. Skeels and Committee for Public Counsel Services, on
brief for appellant.
     Susanne Reardon, Assistant Attorney General, Criminal Bureau,
Appeals Division, and Maura Healey, Attorney General, on brief for
appellee.



                        October 19, 2016
            TORRUELLA, Circuit Judge.        Charkeem Hyatt, petitioner-

appellant, contests the district court's denial of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254.         Hyatt argues

that Massachusetts state courts failed to apply the United States

Supreme Court's holding in Snyder v. Massachusetts, 291 U.S. 97,

122 (1934), in denying his request to be present during the jury

view of the crime scene.     After careful consideration, we affirm

the district court's denial of habeas corpus relief.

                             I. Background

            On federal habeas review, the findings of fact of a state

court "shall be presumed to be correct."         28 U.S.C. § 2254(e)(1);

see Sumner v. Mata, 455 U.S. 591, 592–93 (1982) (per curiam).

Accordingly, we must accept them unless convinced by clear and

convincing evidence that they are erroneous.         Lynch v. Ficco, 438

F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v. Hall, 303 F.3d

24, 26 (1st Cir. 2002) (en banc)).         We take the facts as presented

by   the   Massachusetts   Appeals    Court,    which   affirmed   Hyatt's

conviction, supplemented with other record facts consistent with

the state court's findings.      Scoggins v. Hall, 765 F.3d 53, 54

(1st Cir. 2014).

A. Trial

            In July 2009, Hyatt was involved in the shooting of four

people outside a bar in the Roxbury neighborhood of Boston,


                                     -2-
Massachusetts.     A grand jury in Suffolk County indicted Hyatt on

the following counts: one count of unlawful possession of a

firearm, one count of unlawful possession of ammunition, one count

of possession of a loaded firearm, three counts of aggravated

assault and battery with a dangerous weapon, three counts of

assault with a dangerous weapon, and four counts of possession of

a firearm in the commission of a felony.

            Hyatt pled not guilty to all counts, and a jury trial

commenced    on   February   6,   2012,     before   Justice   Brady   of   the

Massachusetts     Superior   Court.       On   February   8,   Justice   Brady

discussed the logistics and rules for a jury view of the scene

where the shooting took place, which would take place on the

following day.     Hyatt's trial counsel requested Hyatt's presence

during the view.     Justice Brady responded that Hyatt could not go

because of security reasons.       He added, "He's in custody.         I can't

bring him.    I don't have enough security people for that.                 I've

never had a defendant [attend a view], other than one who's on the

street."

            Later that day, Hyatt's counsel renewed her request that

Hyatt be allowed to accompany the jury on the view.              In response

to the request, the court engaged in the following exchange:

       THE COURT: Look, I'm sorry. He's in custody for very
       serious charges. It's a very serious event. I'm not
       going to allow him to come on the view because I just
       don't have adequate security. Further, I can't have

                                      -3-
          him without chains out there, so the jury is going to
          be there. It just isn't a workable situation. So I
          understand that the [Massachusetts Supreme Judicial
          Court] has never changed the Judge's discretion about
          that, so if you want, you've made an objection, that's
          fine, I've overruled it. But I'm not going to allow
          it.

     . . .

          MS. ODIAGA: I think the jury is going to be made more
          aware of the fact that he is in custody by his absence.

          THE COURT: I probably have done maybe thirty views
          without defendants there, and I never said anything
          special. If you can think of anything you want me to
          say, I'd be happy to do it, but I think probably most
          lawyers feel that it's better left unsaid. Maybe the
          jury will just assume that they never come. But if
          you can think of anything tomorrow, by all means I'd
          be happy to consider it, okay?

             The   next    morning,   the     view   proceeded   as   scheduled,

without    Hyatt   in     attendance.       Both     Hyatt's   counsel   and   the

prosecutor representing the Commonwealth were permitted to point

out certain features of the scene to the jury, but neither was

allowed to make any argument or offer other commentary.                    At no

point before or during the view did anyone draw any attention to

the fact of Hyatt's absence.

             On February 16, 2012, the jury returned a verdict of

guilty on all counts except the three counts charging him with

assault by means of a dangerous weapon.                  Following the jury's

verdict, Hyatt was sentenced to a term of twelve to fifteen years

of imprisonment.


                                        -4-
B. Proceedings in Massachusetts Appellate Courts

             Hyatt    appealed     his   conviction      to   the   Massachusetts

Appeals Court, alleging that his exclusion from the view violated

his constitutional rights to due process and his presumption of

innocence.     The Appeals Court rejected his arguments and affirmed

the conviction.         Commonwealth v. Hyatt, No. 12–P–1257, 2014 WL

2178782, at *1-3 (Mass. App. Ct. May 27, 2014).                 It noted that it

was bound by "a long-standing precedent that a defendant does not

have the right to be present for a view and that a defendant's

absence   does    not    offend    his   rights      under    the   United   States

Constitution or [the Massachusetts] Declaration of Rights."                      Id.

at *1 (citing cases).            Relying on this precedent, the Appeals

Court held that Justice Brady had acted "well within his authority"

when he cited "security" as the reason to deny Hyatt's request to

attend the view.        Id.

             The Appeals Court also noted that even if exclusion from

a jury view could constitute a due process violation, Hyatt had

failed to make the required showing that that violation had caused

him "substantial harm."            Id.      It also mentioned that it was

unpersuaded      by   Hyatt's     attempt      to   analogize   Justice      Brady's

refusal to allow him to attend the view to allowing a defendant to

be seen by the jury in prison garb or shackles, which requires

particularized findings.          Id.


                                         -5-
             Hyatt    petitioned      the   Massachusetts      Supreme    Judicial

Court    for    further       review,    but   his      petition    was   denied.

Commonwealth v. Hyatt, 15 N.E.3d 762 (Mass. 2014).

             Hyatt then filed a petition for habeas corpus relief

under 28 U.S.C. § 2254 in the United States District Court for the

District of Massachusetts, alleging that the trial court violated

his due process and equal protection rights under the Fourteenth

Amendment when it denied his request to accompany the jury on a

view of the crime scene.         The district court denied the petition,

but granted a certificate of appealability.                   Hyatt v. Gelb, 142

F. Supp. 3d 198, 205 (D. Mass. 2015).              This appeal ensued.

                                  II. Analysis

A. Standard of Review

             We review the district court's denial of habeas relief

de novo.       Sánchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014).

"Our    de   novo     review    encompasses       the   district    court's   own

'determination of the appropriate standard of review of the state

court proceeding.'"       Id. (quoting Zuluaga v. Spencer, 585 F.3d 27,

29 (1st Cir. 2009)).            The district court is not entitled to

deference.      Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006).

Rather, in these cases, we must "determine whether the habeas

petition     should    have    been     granted    in   the    first   instance."

Sánchez, 753 F.3d at 293.


                                         -6-
B. Antiterrorism and Effective Death Penalty Act Standards

            Under the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), habeas relief

       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; 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); see Hodge v. Mendonsa, 739 F.3d 34, 41 (1st

Cir. 2013); Zuluaga, 585 F.3d at 29.      Only a legal or factual

error that is objectively unreasonable warrants relief.      Cooper

v. Bergeron, 778 F.3d 294, 299 (1st Cir. 2015) (citing White v.

Woodall, 134 S. Ct. 1697, 1702 (2014)).

            "An adjudication is on the merits[,] giving rise to

deference under § 2254(d) of AEDPA, if there is a decision finally

resolving the parties' claims, with res judicata effect, that is

based on the substance of the claim advanced, rather than on a

procedural, or other, ground."     Scott v. Gelb, 810 F.3d 94, 99

(1st Cir. 2016) (citations omitted) (internal quotation marks

omitted).    "[A] state-court adjudication of an issue framed in

terms of state law is nonetheless entitled to deference under


                                 -7-
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."               Id. (alteration

in original) (quoting Foxworth v. St. Amand, 570 F.3d 414, 426

(1st Cir. 2009)).

              "For   purposes     of     §    2254(d)(1),    an     unreasonable

application     of     federal   law    is    different    from    an   incorrect

application of federal law."            Linton v. Saba, 812 F.3d 112, 122

(1st   Cir.    2016)    (internal      quotation   marks    omitted)     (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).              "A state court's

determination that a claim lacks merit precludes federal habeas

relief so long as 'fairminded jurists could disagree' on the

correctness of [the state court's] decision."                     Id. at 122-23

(alteration in the original) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).       "The more general the rule, the more leeway

courts have in reaching outcomes in case-by-case determinations."

Id. at 123 (quoting Alvarado, 541 U.S. at 664).              "Thus, to obtain

federal habeas relief, a petitioner must show '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.'"                    Id.

(quoting Richter, 562 U.S. at 103).




                                        -8-
C. Hyatt's Claims

          Hyatt alleges that the Appeals Court's decision was

contrary to clearly established federal law because it did not

identify or apply the correct federal standard as to when a

defendant has a right to be present at a view.   He points out that

the applicable standard was announced in Snyder, 291 U.S. 97, where

the Supreme Court considered whether a defendant's exclusion from

a view of the crime scene was a denial of due process under the

Fourteenth Amendment, but notes that the Appeals Court did not

even mention it in its decision or cite any other federal authority

in support of its conclusions and, instead, relied on "a long line

of state court decisions."   He also posits that "whether to exclude

a defendant from a view must be determined in the light of the

whole record," but the Appeals Court failed to do so.1

          Hyatt is correct that the Appeals Court did not cite

Snyder or other federal precedent directly.      We note, however,

that the precedent on which the Appeals Court relied did so.

Hyatt, 2014 WL 2178782, at *1 (citing Commonwealth v. Evans, 438


1  In the state courts and the district court Hyatt also claimed
that Justice Brady's refusal to permit his attendance at the view
undercut his presumption of innocence, as it is similar to
appearing before the jury in prison garb or shackles.     Because
this argument was not meaningfully discussed in his brief as a
ground for relief before this Court, and it would fall outside of
the scope of the certificate of appealability, we limit our
discussion accordingly.


                                -9-
Mass. 142, 150-51 (2002) (citing Snyder, 291 U.S. at 107-08)).

And, in any event, a state court need not cite or even be aware of

Supreme Court cases to be entitled to deference under § 2254(d)

"so long as neither the reasoning nor the result of the state-

court decision contradicts them."         See Early v. Packer, 537 U.S.

3, 8 (2002) (per curiam).

           In this case, the Appeals Court held that a defendant

does not have a right to be present for a view and that a

defendant's absence does not offend his constitutional rights.

The Appeals Court recognized that "the particular circumstances of

a case may be such that events at a view may deny a defendant a

fair proceeding and thereby deprive him of due process," but noted

that a defendant making such a claim must show substantial harm

and Hyatt failed to do so.

           In Snyder, the Court noted that while a defendant has a

right to be present at trial, "a view is not a 'trial' nor any

part of a trial in the sense in which a trial was understood at

common law."     Snyder, 291 U.S. at 113.    It further stated that "in

a prosecution for a felony the defendant has the privilege under

the Fourteenth Amendment to be present in his own person whenever

his   presence   has   a   relation,   reasonably   substantial,   to   the

fullness of his opportunity to defend against the charge."              Id.

at 105-06.     The Supreme Court clarified that "[n]owhere in [its]


                                   -10-
decisions . . . is there a dictum, and still less a ruling, that

the Fourteenth Amendment assures the privilege of presence when

presence would be useless, or the benefit but a shadow."    Id. at

106-07.    Accordingly, "[s]o far as the Fourteenth Amendment is

concerned, the presence of a defendant is a condition of due

process to the extent that a fair and just hearing would be

thwarted by his absence, and to that extent only."2    Id. at 107-

08.    And "the justice or injustice" of excluding a defendant in a

particular set of circumstances "must be determined in the light

of the whole record."    Id. at 115.   The Supreme Court concluded

in Snyder that the denial of the defendant's request to be present

when the jury viewed the crime scene and the prosecutor and defense

counsel pointed out to the jury specific things they wanted them

to observe, did not constitute a denial of due process.     Id. at

122.

            Hyatt seems to interpret Snyder as the default being in

favor of attendance unless a judge makes particularized findings

based on the entire record justifying a defendant's absence from


2  The Supreme Court noted that "fairness is a relative, not an
absolute concept." Snyder, 291 U.S. at 116. "It is fairness with
reference to particular conditions or particular results. 'The
due process clause does not impose upon the States a duty to
establish ideal systems for the administration of justice, with
every modern improvement and with provision against every possible
hardship that may befall.'"     Id. at 116-17 (quoting Ownbey v.
Morgan, 256 U.S. 94, 110-11 (1921).


                                -11-
a view.    The Appeals Court's interpretation of federal law,

however, seems to be aligned with the district court's reading of

Snyder as holding "that the default is that a defendant has no

right to be at a view unless there are particular circumstances

making such exclusion unfair."    Hyatt, 142 F. Supp. 3d at 204

(quoting Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996)

("The lesson of Snyder is that, if in any given case the exclusion

of the defendant from a jury view is found to be a deprivation of

due process, it is not because the Constitution guarantees the

defendant an absolute right to be present; it is only because his

absence, under the particular circumstances of his case, can be

said to have denied him a fair proceeding.")).   It is unnecessary

to determine which interpretation is more consistent with Snyder,

as it suffices to say that the Appeals Court's decision did not

contradict, nor was it an unreasonable application of, the Supreme

Court's holding in Snyder.   See Mendonsa, 739 F.3d at 41-43.   We

acknowledge that there might be a case where a defendant's absence

from a view may deny the defendant "fair and just" proceedings

and, thus, constitute a due process violation.    See Snyder, 291

U.S. at 105-08.   We note, however, that Hyatt did not make any

showing to the Appeals Court that, under the circumstances of his

case, his exclusion from the view denied him of a fair and just

proceeding or thwarted his opportunity to defend against the


                               -12-
charges he was facing.        The record shows that, as in Snyder,

counsel for both parties did not present any evidence during the

view, but merely pointed out particular aspects at the scene to

the jury.   In addition, Hyatt and his counsel had the opportunity

to review existing photographs, video, and maps related to the

view prior to trial.        At trial, his counsel cross-examined the

Commonwealth's identification witnesses about their opportunity to

view the shooter and their truthfulness.          He presented testimony

of three witnesses to demonstrate that he was not the shooter.

Finally, in addition to the lack of substantial harm, Hyatt was on

trial for "very serious charges," and Judge Brady noted there was

a lack of sufficient security personnel available.

            In light of the above, we cannot conclude that the

Appeal's Court ruling "was so lacking in justification that there

was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement."           Linton, 812

F.3d at 123 (quoting Richter, 562 U.S. at 103).

                             III. Conclusion

            The   Appeals   Court   did    not   rule    "contrary   to"   or

unreasonably      apply     "clearly       established     Federal    law."

Accordingly, we affirm the district court's denial of Hyatt's

habeas corpus petition.

            Affirmed.


                                    -13-
