

November 22, 1994 UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                                    

No. 93-1795

                         NAZZARO SCARPA,
                      Petitioner, Appellee,

                                v.

                      LARRY E. DUBOIS, ETC.,
                     Respondent, Appellant. 

                                                                                                      

                           ERRATA SHEET                                     ERRATA SHEET

     The  opinion of  the Court  issued on  October 18,  1994, is
corrected as follows:

     On page 26, line 17, "449" should be "499"

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-1795

                         NAZZARO SCARPA,

                      Petitioner, Appellee,

                                v.

                      LARRY E. DUBOIS, ETC.,

                      Respondent, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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

                                             

                              Before

                      Selya, Cyr and Boudin,

                         Circuit Judges.                                                 

                                             

     William J.  Duensing, Assistant Attorney General,  with whom                                   
Scott Harshbarger, Attorney General, was on brief, for appellant.                           
     Nazzaro Scarpa, pro se,  orally and on original briefs,  and                                     
Seth  M.  Kalberg, by  appointment of  the  court, orally  and on                           
supplemental brief, for appellee.

                                             

                         October 18, 1994

                                             

          SELYA,  Circuit Judge.   This  appeal requires  that we                    SELYA,  Circuit Judge.                                         

address an  important question,  not authoritatively  resolved by

controlling  precedent:   When (if  ever) does  defense counsel's

substandard performance in a criminal case   never a pretty sight

   become  so unattractive  that a  habeas  court must  forgo the

customary inquiry into the harmful effects of attorney error and,

instead,  conclusively presume that counsel's blunders prejudiced

the defendant?

          The   question  arises   in   the  following   context.

Petitioner-appellee Nazzaro Scarpa  brought a pro se  application                                                              

for habeas corpus in the federal district  court.1  See 28 U.S.C.                                                                 

    2241-2254  (1988).    He  denominated  a  state  correctional

official, in his representative capacity, as the respondent.  The

district  court  discerned  a  Sixth  Amendment  violation:    it

concluded that Scarpa's trial counsel in the state court rendered

grossly ineffective  legal assistance  to him, see  Strickland v.                                                                        

Washington,  466  U.S. 668,  687  (1984)  (elucidating applicable                    

test);  see also  Hill  v.  Lockhart,  474  U.S.  52,  57  (1985)                                              

(applying Strickland  in the habeas context),  and that counsel's                              

woeful  performance  gave  rise  to   a  per  se  presumption  of                                                          

prejudice.    The district  court  relied  principally on  dictum

contained  in United States v.  Cronic, 466 U.S.  648 (1984), for                                                

the  proposition that  it  did  not  need  to  inquire  into  the

                                                  

     1On appeal, petitioner has also appeared pro se, preparing a                                                              
brief and  arguing orally on his  own behalf.  To  assist him, we
appointed counsel  who filed  a supplemental brief  and presented
additional oral argument.

                                3

existence of actual prejudice.

          Respondent  appeals.    Although  the  district court's

reading of Cronic finds  some support in the case  law, including                           

isolated  cases  decided by  the  Ninth and  Tenth  Circuits, see                                                                           

United States v. Swanson, 943 F.2d 1070, 1073-74 (9th Cir. 1991);                                  

Osborn  v. Shillinger,  861 F.2d  612, 626  (10th Cir.  1988), we                               

believe that Cronic is not nearly so wide-ranging as the district                             

court assumed.  Hence, we reverse.

I.  BACKGROUND          I.  BACKGROUND

          We  glean the  essential facts  from the  transcript of

petitioner's  trial in Suffolk Superior Court.  On June 10, 1987,

Joseph  Desmond,  an  agent   of  the  federal  Drug  Enforcement

Administration (DEA), posing as a would-be cocaine purchaser, met

with  his initial  target,  Robert Ricupero,  at  a pub  in  East

Boston.  At Ricupero's request, petitioner joined them.  The trio

discussed a possible cocaine purchase and then crossed the street

to  a parked limousine that bore  the insignia of the "Snow White

Limousine Service."  Ricupero and Scarpa entered the vehicle.  As

Desmond  later  testified,  Scarpa  passed roughly  28  grams  of

cocaine to Ricupero,  who handed  it to Desmond  in exchange  for

$1500  in cash.   Ricupero  kept $100  and gave the  remainder to

Scarpa.  These events occurred under police surveillance.

          The  next  encounter  between   Desmond  and  his  prey

occurred   on  July  18,  1987.    In  preparation  for  it,  the

authorities again assigned a cadre of law enforcement officers to

surveillance duties.  Desmond  and Ricupero met at the  same pub.

                                4

At Ricupero's  invitation, Scarpa  again  joined them.   On  this

occasion, the actual exchange  occurred in the deserted stairwell

of a nearby apartment building, and a fourth man, James Marcella,

entered  the equation.  Desmond  testified that Marcella handed a

package  containing roughly 55  grams of  cocaine to  Scarpa, who

passed the package to  Ricupero.  When Ricupero placed  the drugs

within  Desmond's  reach, Desmond  handed  him  $3000.   Ricupero

slipped the money to Scarpa, who turned it over to Marcella.

          In due season, the Commonwealth indicted petitioner for

drug trafficking and unlawful distribution.  A jury convicted him

on all charges after a four-day trial.  The trial judge sentenced

him to serve a  lengthy prison term.   Petitioner's motion for  a

new trial  failed; the  Massachusetts Appeals Court  affirmed the

conviction, see Commonwealth v. Scarpa,  30 Mass. App. Ct.  1106,                                                

567 N.E.2d  1268 (1991) (table);  and the Supreme  Judicial Court

(SJC)  summarily denied  petitioner's  application  for leave  to

obtain  further  appellate review  (alofar), see  Commonwealth v.                                                                        

Scarpa, 409 Mass. 1105, 571 N.E.2d 28 (1991).                

          Undaunted, Scarpa  filed an  application for a  writ of

habeas corpus in federal district court.  After hearing arguments

presented  by Scarpa and by the  Commonwealth, the district court

granted  the   petition.     It  found  that   defense  counsel's

performance  not  only  fell   below  an  objectively  reasonable

standard  of  proficiency  but also  caused  a  breakdown  in the

adversarial  system.      This,  the   district  judge   thought,

constituted  prejudice  per  se.   Accordingly,  he  vacated  the                                         

                                5

conviction, ordered  petitioner released from state  custody, and

directed  the Commonwealth  to retry  him if  it sought  to exact

further punishment.   The court refused respondent's  application

for a stay, and petitioner is at liberty.

II.  EXHAUSTION OF REMEDIES          II.  EXHAUSTION OF REMEDIES

          The Commonwealth is the real party in interest in these

proceedings, and  we treat  the  case as  if  it were  the  named

respondent.   At the  outset, the Commonwealth  seeks to sidestep

habeas relief by convincing us  that petitioner failed to present

his  constitutional claim to the state courts before bolting to a

federal forum.  We are not persuaded.

                    A.  Governing Principles.                              A.  Governing Principles.                                                      

          Under our  federal system,  both the federal  and state

courts  are  entrusted  with  the  protection  of  constitutional

rights.  See Ex parte Royall, 117 U.S. 241, 251 (1886).  In order                                      

to  ease  potential  friction  between these  two  sovereigns,  a

federal  court will ordinarily  defer action on  a cause properly

within  its jurisdiction  until the  courts of  another sovereign

with concurrent powers, already cognizant of the litigation, have

had an opportunity to pass  upon the matter.  See Rose  v. Lundy,                                                                          

455  U.S. 509, 518 (1982).  This practice, reflecting concerns of

comity,  has been codified in 28 U.S.C.   2254,2 and memorialized
                                                  

     2The statute provides in pertinent part:

                       *        *        *

               (b) An application for  a writ of habeas
          corpus  in  behalf  of  a  person  in custody
          pursuant  to the  judgment of  a State  court

                                6

in our case law,  see, e.g., Mele  v. Fitchburg Dist. Court,  850                                                                     

F.2d 817, 819 (1st Cir. 1988).

          In order to present a federal claim to the state courts

in  a  manner  sufficient   to  satisfy  exhaustion  concerns,  a

petitioner  must inform the state  court of both  the factual and

legal underpinnings of the claim.  See Picard v. Conner, 404 U.S.                                                                 

270, 276-78  (1971).   The test  is substantive:   was the  claim

presented in  such a way as to make it probable that a reasonable

jurist  would have been alerted  to the existence  of the federal

question?  See  Nadworny v. Fair, 872  F.2d 1093, 1101  (1st Cir.                                          

1989).   While the answer  to the  question must not  be made  to

depend on  "ritualistic formality," id.  at 1097, neither  is the                                                 

answer wholly in the eye of the beholder.

          In  Gagne v. Fair,  835 F.2d 6,  7 (1st  Cir. 1987), we                                     

catalogued four ways in which the requirement of fair presentment

may  be  fulfilled:   "1)  citing  a  specific  provision of  the

Constitution;   2)   presenting  the   substance  of   a  federal

                                                  

          shall not  be granted unless  it appears that
          the  applicant  has  exhausted  the  remedies
          available in the courts of the State, or that
          there is either an absence of available State
          corrective  process  or   the  existence   of
          circumstances    rendering    such    process
          ineffective  to protect  the  rights  of  the
          prisoner.
               (c) An applicant shall  not be deemed to
          have  exhausted the remedies available in the
          courts of the  State, within  the meaning  of
          this section,  if he has the  right under the
          law of  the State to raise,  by any available
          procedure, the question presented.

28 U.S.C.   2254(b), (c) (1988).

                                7

constitutional claim in  such manner that  it likely alerted  the

state court to the claim's federal nature; 3) reliance on federal

constitutional  precedents;  and 4)  claiming a  particular right

specifically  guaranteed  by  the  Constitution."   We  did  not,

however, attribute exclusivity to  this compendium.  In Nadworny,                                                                          

872 F.2d  at 1099-1100, we mentioned a fifth possibility, namely,

the assertion of a state law claim that is functionally identical

to a federal  claim.  These possibilities recognize  that certain

constitutional violations have the capacity  to rest on a variety

of factual bases.  While the facts and legal theories need not be

propounded  in  precisely  the  same  terms,   fair  presentation

requires that  the constitutional analysis  necessary to  resolve

the ultimate question  posed in  the habeas petition  and in  the

state court proceedings, respectively, be substantially the same.

See Lanigan v. Maloney, 853 F.2d 40, 44-45 (1st Cir. 1988), cert.                                                                           

denied, 488 U.S. 1007 (1989).                

                          B.  Analysis.                                    B.  Analysis.                                                

          Here,  petitioner's  odyssey through  the Massachusetts

court system involved a trial, a motion for a new  trial, a full-

dress appeal in the state  appeals court, and an alofar.   At all

three post-trial stages, petitioner raised claims anent counsel's

proficiency   (or,  more   precisely  put,   counsel's  lack   of

proficiency) and couched his claim in terms that remained largely

unchanged.  In his  pleadings and memoranda at all  three stages,

petitioner  alleged three  principal  shortcomings  on  counsel's

part:   a  failure to  attack the  prosecution's star  witness; a

                                8

mindless solicitation  to the jury to believe  that star witness;

and the ill-advised pursuit of a defense, not legally cognizable,

that  virtually conceded  the elements  of the  charged offenses.

Throughout the appellate process, petitioner described  his claim

as "ineffective assistance of counsel."

          Moreover, at  the first two stages he cited three state

cases,  Commonwealth  v.  Pope,  467  N.E.2d  117  (Mass.  1984);                                        

Commonwealth  v.  Satterfield,  364  N.E.2d  1260  (Mass.  1977);                                       

Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974), that dealt                                  

squarely  with this  issue.3    In  his  motion  for  new  trial,

petitioner cited  the Sixth  Amendment by name,  accompanying the

motion  with the affidavit of his  trial counsel, Arthur Tacelli,

attesting  to Tacelli's self-professed ineffectiveness.  Scarpa's

federal habeas petition again asserted "ineffective assistance of

counsel,"  and cited the same  three factual bases  in support of

the assertion.

          On these facts,  we agree with the district  judge that

the  arguments presented by  petitioner sufficiently  alerted the

state  courts to the substance  of the constitutional  claim.  In

the first  place, an argument phrased  as "ineffective assistance

of counsel" certainly "claim[s]  a particular right  specifically
                                                  

     3The Commonwealth  makes much of  the fact that  these cases
were not  cited in the alofar, and insists that Mele, 850 F.2d at                                                              
823, requires a federal court to restrict the exhaustion  inquiry
to that document.  This crabbed reading of Mele wrenches the case                                                         
out  of   its  context.     There,   the  defendant   raised  his
constitutional  issue  before the  intermediate  appellate court,
abandoned it  in his alofar, and then  attempted to raise it anew
in his  habeas petition.  See id. at 818-19.  In contrast, Scarpa                                           
has consistently asserted his ineffective assistance claim.

                                9

guaranteed  by the Constitution."  Gagne, 835  F.2d at 7.  In the                                                  

second place,  by identifying the  Sixth Amendment in  his motion

for  a new trial, petitioner "cite[s] a specific provision of the

Constitution," id., and,  at the same  time, provided a  backdrop                            

against which his later filings had to be viewed.

          If  any doubt  remains, the  sockdolager is that,  as a

general rule,  presenting a state-law claim  that is functionally

identical  to a  federal-law  claim suffices  to effectuate  fair

presentment of the latter claim.  See Nadworny, 872 F.2d at 1099-                                                        

1100.   So  it is  here:   petitioner brought himself  within the

encincture of this rule  by his repeated citation to the  trio of

Massachusetts cases that we have mentioned   cases  that evaluate

the   effectiveness  of   an  attorney's  performance   in  terms

reminiscent  of  the  federal  constitutional standard.    As  in

Strickland, 466  U.S. 668,  the Massachusetts  cases  call for  a                    

deferential  evaluation of  counsel's  performance,  and, if  the

performance is found  to be substandard, an inquiry  into whether

counsel's  incompetence  injured   the  defendant's   substantial

rights.  See Pope, 467 N.E.2d at 122-123; Satterfield, 364 N.E.2d                                                               

at 1264; Saferian, 315 N.E.2d at 882-83.4                           
                                                  

     4The  SJC  has  made  clear  that  it  ordinarily  considers
questions involving "assistance of counsel" as coming "within the                                                                           
meaning of the  Sixth Amendment."   Saferian, 315  N.E.2d at  882                                                      
(emphasis supplied).  A defendant must show that

          there   has    been   serious   incompetency,
          inefficiency,  or  inattention  of counsel   
          behavior of counsel falling  measurably below
          that which might be expected from an ordinary
          fallible  lawyer    and,  if that  is  found,
          then,  typically,  whether   it  has   likely

                                10

          Despite  minor  differences  in  phraseology,  the  two

standards   state and federal   strike us as equivalent.  Indeed,

the Commonwealth  does not contend  that a  claim of  ineffective

assistance of  counsel  arising under  Massachusetts law  differs

from such a claim arising out of the Sixth Amendment.  We readily

appreciate why this  contention is  not voiced.   The essence  of

each inquiry looks to the likelihood that effective assistance of

counsel would have produced  a different trial outcome.   The SJC

itself, while leaving open the theoretical possibility that there

might be some difference between the state and federal standards,

has  concluded that  if  their state's  test  is satisfied,  "the

Federal test  is  necessarily  met  as well."    Commonwealth  v.                                                                       

Fuller,  475 N.E.2d 381, 385 n.3 (Mass.  1985).  Finally, we deem                

it  highly relevant  that  the SJC  has  continued to  apply  the

Saferian analysis to ineffective  assistance of counsel claims in                  

the post-Strickland era.  See, e.g., Commonwealth v. Charles, 489                                                                      

                                                  

          deprived  the  defendant   of  an   otherwise
          available, substantial ground of defence.

Id.  at 883.    This is  functionally  identical to  the  federal             
standard, which calls for a defendant to 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 trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687.                    

                                11

N.E.2d 679, 688 (Mass. 1986); Commonwealth v. Licata, 591  N.E.2d                                                              

672, 676 (Mass. 1992).

          To  be  sure, petitioner  failed  to  cite directly  to

federal  precedent in  his  journey through  the state  appellate

process.    In our  view, however,  this  omission is  not fatal.

Although such citation is  strongly recommended if only to  avoid

controversies of  this nature,  we have specifically  declined to

adopt a  bright-line rule.  See Nadworny, 872 F.2d at 1101 &amp; n.4.                                                  

The guidelines we  have promulgated in respect  to exhaustion are

intended to  be instructive,  rather  than to  comprise the  sole

corridors  through   which   the  "actual   embodiment  of   fair

presentation" may pass.  Id. at 1097.                                      

          To  say more would be  supererogatory.  For the reasons

stated above, we conclude that petitioner's Sixth Amendment claim

was  put to  the state  courts with the  requisite clarity.   See                                                                           

Twitty v.  Smith, 614  F.2d 325,  332 (2d  Cir. 1979)  (finding a                          

similar  claim exhausted, under  analogous circumstances, because

"the mention of `effective assistance of counsel' instantly calls

to mind the Sixth Amendment's guaranty of the accused's right `to

have  the Assistance  of  Counsel for  his defence'")  (citations

omitted);  see also Daye v.  Attorney General, 696  F.2d 186, 193                                                       

(2d  Cir. 1982) (en banc)  (reaffirming Twitty holding); Brady v.                                                                        

Ponte, 705 F. Supp. 52, 54 (D. Mass. 1988) (stating that explicit               

reference  to  "ineffective assistance  of  counsel"  suffices to

exhaust a Sixth Amendment claim) (dictum).

III.  THE MERITS          III.  THE MERITS

                                12

          We  segment  our  consideration of  the  merits,  first

outlining certain legal principles of general applicability, then

essaying  an  overview  of  petitioner's  trial,  and  thereafter

synthesizing  the  fruits  of  these endeavors  by  applying  the

relevant principles to the relevant circumstances.

                    A.  Governing Principles.                              A.  Governing Principles.                                                      

          The  Sixth Amendment guarantees criminal defendants the

right  to effective assistance  of counsel.   See Strickland, 466                                                                      

U.S.  at  687.    The   touchstone  for  determining  whether  an

attorney's  performance  falls below  the constitutional  norm is

whether  counsel has brought "to bear such skill and knowledge as

will render  the trial  a reliable adversarial  testing process."

Id. at 688.  The inquiry has  two foci.  First, a reviewing court             

must  assess  the  proficiency  of  counsel's  performance  under

prevailing professional norms.  See United States v. Natanel, 938                                                                      

F.2d  302, 310  (1st Cir.  1991), cert.  denied, 112  S. Ct.  986                                                         

(1992).   This  evaluation  demands a  fairly tolerant  approach;

after all,  the Constitution pledges  to an accused  an effective

defense,  not  necessarily  a  perfect defense  or  a  successful

defense.   See, e.g., Lema v. United States, 987 F.2d 48, 51 (1st                                                     

Cir. 1993); Natanel,  938 F.2d at 309.  And, moreover, since even                             

the  most celebrated lawyers can  differ over trial  tactics in a

particular  case,  a  reviewing  court  must  "indulge  a  strong

presumption that counsel's conduct falls within the wide range of

reasonable professional  assistance."   Strickland,  466 U.S.  at                                                            

689.

                                13

          The  second  line  of  inquiry is  needed  because,  in

itself,  dreary  lawyering  does  not  offend  the  Constitution.

Rather, a  finding that counsel  failed to  meet the  performance

standard merely  serves to  advance the  focus of the  Strickland                                                                           

inquiry to the question of whether the accused suffered prejudice

in consequence  of counsel's blunders.   See  id. at  692.   This                                                           

entails  a  showing of  a "reasonable  probability that,  but for

counsel's  unprofessional errors,  the result  of the  proceeding

would have been different."  Id. at 694.  A defendant who alleges                                          

ineffective  assistance  of  counsel  must carry  the  devoir  of

persuasion  on both  tiers of  the Strickland  test.   See, e.g.,                                                                          

Lema, 987 F.2d at 51.  The same holds true of a habeas petitioner              

who  claims that counsel mishandled his case in the state courts.

See Perron v. Perrin, 742 F.2d 669, 673 (1st Cir. 1984).                              

          An inquiry into the  effectiveness of counsel is almost

always a  mixed question of  law and  fact.  See  Strickland, 466                                                                      

U.S. at  698.  In federal courts, mixed questions of law and fact

arising in section 2254  cases are ordinarily subject to  de novo                                                                           

review.   See Chakouian  v. Moran,  975 F.2d  931, 934  (1st Cir.                                           

1992).   This includes claims premised  on ineffective assistance

of counsel.   See, e.g., McAleese v. Mazulkiewcz, 1 F.3d 159, 165                                                          

(3d Cir. 1993); Fields  v. Attorney General, 956 F.2d  1290, 1297                                                     

n.18   (4th  Cir.),  cert.   denied,  113  S.   Ct.  243  (1992).                                             

Comfortable with  this precedent,  and mindful that  the district

court's "prejudice per  se" ruling derives  from a conception  of                                    

law  rather  than from  a finding  of fact,  we  apply a  de novo                                                                           

                                14

standard of review here.5

                    B.  The State Court Trial.                              B.  The State Court Trial.                                                       

          In  the  superior court,  the prosecution  conveyed its

case  principally  through  two  witnesses.     Desmond  supplied

detailed,  firsthand  testimony anent  the  cocaine  sales and  a

Boston  police detective,  Joseph Mugnano, testified  that Scarpa

admitted owning the Snow White Limousine Service.

          Scarpa's  defense counsel  did not  attempt to  impeach

Desmond, but, rather, rehashed the direct examination, extracting

from Desmond the following facts:  that Ricupero, not Scarpa, was

the  primary target  of  the DEA's  investigation; that  Ricupero

initially indicated to Desmond that his repository for  drugs was

a pickup truck, not  a limousine; that, with respect to the first

transaction, (1) Desmond did not know who put  the cocaine in the

limousine, and  (2) someone other than Scarpa actually handed the

                                                  

     5Some courts  have suggested that a  standard of independent
review   which we  have described in  a different context as  "an
intermediate level of  scrutiny, more rigorous than  the abuse of
discretion  or  clear-error  standards,  but  stopping  short  of
plenary  or de novo review,"  United States v.  Tortora, 922 F.2d                                                                 
880, 883 (1st  Cir. 1990)   applies in habeas  cases.  See, e.g.,                                                                          
Battle v.  Dell, 19 F.3d 1547, 1552  (8th Cir. 1994); Hamilton v.                                                                        
Ford,  969 F.2d 1006, 1010 (11th Cir. 1992), cert. denied, 113 S.                                                                   
Ct.  1625 (1993);  see  also S.  Childress  &amp; M.  Davis,  Federal                                                                           
Standards of Review    13.05, at 13-37 (1992).   We are satisfied                             
that de novo  review is appropriate  in the case  at bar, and  we                      
need not  decide today whether  a standard of  independent review
should ever be  employed in habeas cases.   Withal, it strikes us
that where, as here, the district judge does not himself take any
evidence, the  gap between independent review and de novo review,                                                                   
if one  exists at all, is  necessarily very small.   Cf. Tortora,                                                                          
922 F.2d at  883 (explaining that  lesser deference is  warranted
when  district court  essays no  "new or  different factfinding,"
but,  instead, acts on the  basis of a  magistrate's findings and
report).

                                15

drugs to  Desmond; that, with respect to  the second transaction,

(1)  Scarpa was a middle link in the chain of drugs and cash, and

(2) Desmond  did  not  know  whether Scarpa  received  any  money

referable  to that  transaction.   Attorney  Tacelli declined  to

question Mugnano  and produced no witnesses  in Scarpa's defense.

His closing  argument consisted  of a  terse  explanation of  the

concept of reasonable  doubt and  a solicitation to  the jury  to

accept the government's testimony:

          So, I'm  asking you,  as finders of  fact, to
          believe   Detective   Mugnano,  because   his
          testimony,  I suggest,  is  innocuous.    The
          second witness  that the Government   and the
          prime witness that the Government produced in
          support of their argument that Mr. Scarpa was
          guilty    of    cocaine    trafficking    and
          distribution, was  Agent Desmond  . . .   And
          you  listen to  DEA Agent    Drug Enforcement
          Agent Desmond.   And I ask you:   What motive
          would that  man have to come  into a superior
          court   courtroom,  with  a  varied  jury,  a
          superior  court judge,  what motive  would he
          have for lying?  What motive would he have to
          tell an  untruth?  What motive  would he have
          to  color the fact situation as he remembered
          it?   And I suggest  to you   and  I hope you                                                                 
          find resoundingly   that he has no motive but                                                                 
          that of  following the  truth. .  . .   [I]'m                                                 
          asking you to find  that man a credible human
          being; a  man who came in, took  the oath and
          told the truth [emphasis supplied].

Speaking of Scarpa, Attorney Tacelli continued:

          Was he a  user of  cocaine?  Was  he a  dupe?
          What happened  to that  money?  What  was its
          final  destination?    Is  Scarpa  a  user of
          drugs?  Is Scarpa  someone that Ricupero, the
          target of the investigation   is Scarpa   was
          he used  by Ricupero to shield himself? . . .
          And  I'm suggesting  to you    again,  at the
          expense of being  repetitious, Scarpa is  not
          found   and it is undetermined   that  is the
          word that  Agent Desmond  used on July  8th  
          it's undetermined  if Scarpa had any  of that

                                16

          money.  . . .  And clearly, the source of the
          cocaine on the 8th  was not Scarpa.  At  best                                                                 
          he  was a  conduit; someone  through whom  it                                                                 
          passed,  and  through whom  the  money passed                                                                 
          [emphasis supplied].

          During  summation, the  prosecutor agreed  that Desmond

had no reason to lie.  He told the jury that the Commonwealth had

no obligation  to prove either  the source of the  cocaine or the

ultimate  destination  of the  money.   And  he  labelled defense

counsel's closing argument "a smokescreen."

          In due  course, the  judge instructed  the jury  on the

elements  of the  trafficking offense.   He  told the  jurors, in

substance, that to convict, they must find that the defendant (1)

knowingly  (2)   possessed  cocaine;  (3)  with   the  intent  to

distribute it; and (4)  that the quantity of  cocaine must be  in

excess  of  28 grams.   See  Mass. Gen.  Laws  ch. 94C,    32E(b)                                     

(1992).   The judge instructed the jurors to much the same effect

in   regard  to   the   distribution   charge,  but   substituted

distribution  for possession  and eliminated  any reference  to a

minimum quantity of  cocaine.  See id.   32A(a).   The judge also                                                

informed the jury that the identity of "the kingpin" did not bear

upon  the charges  at hand.   The jury  convicted Scarpa  on both

counts.

                 C.  The Attorney's Performance.                           C.  The Attorney's Performance.                                                         

          The district court deemed defense counsel's argument as

tantamount to  arguing that petitioner  was a "mere  conduit" for

the  contraband.    Believing  that  this   approach  effectively

conceded the  only disputed  elements of the  charged crimes  and

                                17

relieved  the prosecution of its burden of proof, the court found

Attorney Tacelli's use of it  to be objectively unreasonable, and

therefore, substandard.

          We uphold this  finding.  At the least, defense counsel

in a criminal case should understand the elements of the offenses

with  which  his  client  is  charged  and  should  display  some

appreciation of the  recognized defenses thereto.   See Young  v.                                                                       

Zant, 677 F.2d 792, 798 (11th Cir. 1982) (explaining that defense              

counsel falls below performance standard by failing to understand

his client's factual  claims or the  legal significance of  those

claims);  Baty v. Balkcom, 661  F.2d 391, 394-95  (5th Cir. 1981)                                   

(holding that  defense counsel's unfamiliarity  with his client's

case transgressed performance  standard), cert. denied,  456 U.S.                                                                

1011 (1982).  Unless counsel brings these rudiments to the table,

a defendant likely  will be  deprived of a  fair "opportunity  to

meet  the case of the  prosecution," Strickland, 466  U.S. at 685                                                         

(quoting Adams v.  United States  ex rel. McCann,  317 U.S.  269,                                                          

275, 276  (1942)), and,  thus, will  be placed at  undue risk  of

having no effective advocate for his cause.  Phrased another way,

if an attorney does not  grasp the basics of the charges  and the

potential  defenses to them, an  accused may well  be stripped of

the very means  that are essential  to subject the  prosecution's

case to adversarial testing.  See id. at 688.                                               

          We  agree with the district  court that this  is such a

case.    Defense  counsel's  pursuit  of  his  half-baked  theory

evidenced  a  blatant  misunderstanding  of  the  charged crimes.

                                18

Being  a "conduit"  denotes acting as  an agent  or intermediary.

Persons  who  knowingly  serve  as agents  or  intermediaries  in

narcotics  transactions   are  punishable  as   principals  under

Massachusetts law.   See Commonwealth v. Murillo, 589 N.E.2d 340,                                                          

342 (Mass.), rev. denied, 575 N.E.2d 326  (1992); Commonwealth v.                                                                        

Poole,  563 N.E.2d  253,  255 (Mass.  1990).   Thus, the  line of               

defense  that  counsel  selected  was  altogether  irrelevant  to

petitioner's guilt  or innocence;  and, to compound  the problem,

the steps  taken in pursuit  of it   such  as urging the  jury to

accept Desmond's testimony   played into the prosecution's hands.

Serious  errors  in  an  attorney's  performance,   unrelated  to

tactical choices  or to some plausible  strategic aim, constitute

substandard  performance.  See United  States v. Weston, 708 F.2d                                                                 

302, 306 (7th Cir.) (examining  only those errors not  reasonably

classifiable as  tactical choices  to determine the  existence of

grossly  unprofessional  conduct),  cert. denied,  464  U.S.  962                                                          

(1983);  see also Francis v. Spraggins, 720 F.2d 1190, 1194 (11th                                                

Cir. 1983) (stating that  "complete concession of the defendant's

guilt" may constitute ineffective assistance), cert. denied,  470                                                                     

U.S. 1059 (1988); cf. United States v. Tabares, 951 F.2d 405, 409                                                        

(1st Cir. 1991) (finding no ineffective assistance when counsel's

concession  is strategic); Underwood v.  Clark, 939 F.2d 473, 474                                                        

(7th Cir.  1991)  (similar).   This verity  has particular  force

where, as here, counsel's  blunders not only failed to  assist in

fashioning a  defense but also cemented  the prosecution's theory

of the  case.  There are times when even the most adroit advocate

                                19

cannot  extricate a  criminal  defendant  from  a pit;  but  when

counsel,  to no  apparent end,  digs the  hole deeper,  the Sixth

Amendment performance standard is likely implicated.

          The  Commonwealth's  rejoinder  is  lame.    First,  it

contends   that   Attorney   Tacelli  rendered   constitutionally

effective  assistance because  the conduit  defense is  a "common

defense which raises issues  considered good strategy."   This is

no more  than an  ipse dixit,  unsupported by  authority.   To be                                      

sure,  the   Commonwealth  cites   a  quadrat   of  cases   in  a

conspicuously  unsuccessful effort  to bolster  this claim    but

none of  them is persuasive  on the  point.  Two  of these  cases

stand for  the unremarkable  proposition that "mere  presence" is

not enough  to convict  in a  narcotics case,  in the absence  of

other  evidence.  See Commonwealth  v. Cruz, 614  N.E.2d 702, 704                                                     

(Mass. 1993); Commonwealth v.  Brown, 609 N.E.2d 100, 103  (Mass.                                              

1993); see also United States v. Ortiz, 966 F.2d 707, 711-12 (1st                                                

Cir.  1992)  (explaining difference  between "mere  presence" and

"culpable presence" in drug-trafficking cases), cert. denied, 113                                                                      

S.  Ct.  1005   (1993).     The  other  two   cases  are   easily

distinguishable on the  facts.  See Commonwealth  v. Johnson, 602                                                                      

N.E.2d  555, 559 &amp; n.8 (Mass. 1992); Commonwealth v. Claudio, 525                                                                      

N.E.2d 449, 451-52 (Mass. 1988).

          Second, respondent attempts to cast  Attorney Tacelli's

pratfalls  as an argument for  jury nullification.   This is pure

conjecture.    The record  contains  no  indication that  counsel

strove  to implant  the notion  of  nullification in  the jurors'

                                20

minds.  In  any event, "although jurors possess  the raw power to

set the  accused free for any reason or for no reason, their duty

is  to apply  the law as  given to  them by  the court."   United                                                                           

States  v. Sepulveda, 15 F.3d  1161, 1190 (1st  Cir. 1993), cert.                                                                           

denied,  114 S. Ct. 2714  (1994); see also  Commonwealth v. Leno,                                                                          

616 N.E.2d  453, 457 (1993)  ("We do not accept  the premise that

jurors have  the right  to  nullify the  law  on which  they  are

instructed  . .  . .").   Consequently,  defense counsel  may not

press  arguments for  jury nullification  in criminal  cases, see                                                                           

Sepulveda,  15 F.3d at 1190; United States v. Desmarais, 938 F.2d                                                                 

347, 350  (1st Cir. 1991); Leno,  616 N.E.2d at 457,  and we will                                         

not permit the Commonwealth  to pretend that  it sat idly by  and

allowed Attorney Tacelli to violate this rule.

                          D.  Prejudice.                                    D.  Prejudice.                                                 

          Having found  substandard performance, we come  next to

the  second prong of the Strickland inquiry.  The district court,                                             

while  acknowledging  that   Scarpa's  plight   was  "well   nigh

hopeless,"  bypassed  a  case-specific  inquiry  into  prejudice,

instead finding prejudice per  se on the theory that  counsel was                                           

so  derelict in  his  duty that  petitioner,  in effect,  had  no

counsel at all.   We reject the application of  a per se standard                                                                  

to this  case.   Moreover, after  conducting the full  Strickland                                                                           

analysis in the appropriate way, we find that petitioner suffered

no actual prejudice.

                                1.                                          1.

          As mentioned above, the district court relied primarily

                                21

on dictum contained in United States v. Cronic, 466 U.S. at  658-                                                        

60, for the  proposition that,  in the circumstances  at bar,  it

could forgo an inquiry  into actual prejudice.  The  Cronic Court                                                                     

stated  that  in  rare  instances  prejudice  might  be  presumed

"without  inquiry into  counsel's  actual performance  at trial."

Id.  at  662  (dictum).   But,  the  approach  suggested in  this             

statement  is in all events the exception,  not the rule   and it

can  be  employed  only   if  the  record  reveals  presumptively

prejudicial circumstances such as  an outright denial of counsel,

a  denial of  the  right  to  effective cross-examination,  or  a

complete failure to subject the prosecution's case to adversarial

testing.6  See id. at 659.   The Cronic Court itself warned that,                                                 

in most cases, a showing of actual prejudice remained a necessary

element.   See id.   The Court  stated:  "there  is generally  no                            

basis for  finding a Sixth Amendment violation unless the accused

can  show   how  specific   errors  of  counsel   undermined  the

reliability of the finding of guilt."  Id. at 659 n.26.                                                    

          For  the  most  part,  courts  have  been  cautious  in

invoking the exception limned in the Cronic dictum.   Cronic like                                                                      

principles have been applied, for example, in situations in which

                                                  

     6The  facts  of  Cronic  illustrate the  narrowness  of  the                                      
exception.   In  that  case,  the  defendant  was  charged  in  a
complicated check-kiting  scheme.  The government  had spent over
four  years  investigating the  case,  but  when the  defendant's
counsel withdrew, the trial  court appointed a young real  estate
lawyer only  25 days before trial.   The Supreme Court  held that
this brief period for preparation was "not so  short that it even
arguably justifies a presumption that no lawyer could provide the
[defendant] with the effective  assistance of counsel required by
the Constitution."  466 U.S. at 665.

                                22

defense counsel labored under an actual conflict of interest, see                                                                           

Cuyler v. Sullivan, 446  U.S. 335 (1980), or in which no attorney                            

appeared  despite  a  defendant's  unwaived  right  to  appointed

counsel, see United States v. Mateo, 950 F.2d 44, 48-50 (1st Cir.                                             

1991),  or  in  which  defendant's lawyer  sat  in  total silence

throughout the relevant proceeding,  see Tucker v. Day, 969  F.2d                                                                

155,  159 (5th  Cir. 1992)  (involving resentencing);  Harding v.                                                                        

Davis, 878 F.2d 1341, 1345 (11th Cir. 1989) (holding that defense               

counsel's muteness throughout trial,  including his utter silence

as the  judge directed  a verdict against  his client, is  per se                                                                           

prejudicial), or  in which the  defense attorney was  absent from

the courtroom during  a critical part of the  trial, see Green v.                                                                        

Arn, 809 F.2d  1257, 1259-64 (6th  Cir.), cert. granted,  vacated                                                                           

and remanded to consider mootness, 484 U.S.  806 (1987); Siverson                                                                           

v.  O'Leary, 764 F.2d 1208, 1217 (7th Cir. 1985), or, pre-Cronic,                                                                          

in which counsel  snoozed through  much of  the proceedings,  see                                                                           

Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984).                                

          A  few courts have  extended the exception's boundaries

beyond  the  circumstances surrounding  representation  and found

that  a lawyer's particular errors at trial may cause a breakdown

in  the adversarial  system  and thus  justify invocation  of the

Cronic  dictum.   See  Swanson, 943  F.2d  at 1074  (holding that                                        

knowingly and  explicitly conceding  reasonable doubt  in closing

argument  is per  se  prejudicial); Osborn,  861  F.2d at  628-29                                                    

(finding per  se  prejudice when  defense  counsel  intentionally                          

stressed the brutality  of his client's crime, admitted  that the

                                23

evidence against his client was overwhelming, and made statements

to  the press  that his  client had  no evidence  to  support his

claims).   We believe that these  cases misperceive the rationale

underlying the  Cronic  exception.   In  our  view,  the  Court's                                

language  in Cronic was  driven by  the recognition  that certain                             

types  of  conduct  are in  general  so  antithetic  to effective                                             

assistance   for  example, lawyers  who leave  the courtroom  for

long  stretches of time during  trial are unlikely  to be stellar

advocates  in any matter   that a case-by-case analysis simply is

not worth the  cost of protracted litigation.  No matter what the

facts of  a given case may  be, this sort of  conduct will almost

always result in prejudice.  See Cronic, 466 U.S. at 658-59.  But                                                 

attorney errors particular to the facts of an individual case are

qualitatively different.   Virtually  by definition, such  errors

"cannot  be   classified  according  to  likelihood   of  causing

prejudice"  or  "defined  with  sufficient  precision  to  inform

defense  attorneys  correctly   just  what  conduct  to   avoid."

Strickland,  466  U.S.  at  693.   Consequently,  the  Court  has                    

declined to accord presumptively prejudicial status to them.  See                                                                           

id.             

          We are  not alone in  our attempt  to harmonize  Cronic                                                                           

with  Strickland by  drawing  an easily  visible line  separating                          

those few cases in which prejudice may be presumed from the mine-

run (in which actual  prejudice must be shown).   When confronted

by  particular  errors  on  the  part of  defense  counsel,  best

evaluated  in the context of the defendant's trial, other federal

                                24

courts  have refused  to  march  under  the Cronic  banner,  and,                                                            

instead,  notwithstanding the  seriousness  of  the errors,  have

performed both parts of the requisite Strickland analysis.  Thus,

in  McInerny  v.  Puckett, 919  F.2d  350  (5th  Cir. 1990),  the                                   

defendant  claimed that  his  lawyer's lack  of preparedness  and

failure to  raise an insanity defense justified the invocation of

the Cronic dictum.  See id. at 352-53.  In requiring a showing of                                     

prejudice,  the   Fifth  Circuit   noted  that   "bad  lawyering,

regardless of how bad, does not support the [per se] presumption;                                                             

more  is  required."   Id.  at  353; see  also  United States  v.                                                                       

Thompson, 27 F.3d 671, 676 (D.C. Cir. 1994) (finding no prejudice                  

per se  in defense counsel's  failure to inform  defendant before                

guilty  plea that, as a  career offender, he  faced possible life

imprisonment); United  States v. Baldwin, 987  F.2d 1432, 1437-38                                                  

(9th Cir.) (finding no  prejudice per se where attorney  conceded                                                  

his  client's  guilt  at  pretrial conference  and  neglected  to

request jury instruction on  overt act requirement for conspiracy

charge),  cert.  denied,  113  S. Ct.  2948  (1993);  Woodard  v.                                                                       

Collins, 898  F.2d 1027, 1028 (5th Cir.  1990) (requiring showing                 

of prejudice where  defense counsel advised the  accused to plead

guilty to  a charge that  counsel had  not investigated);  United                                                                           

States v. Reiter, 897  F.2d 639, 644-45 (2d Cir.)  (applying full                          

Strickland standard in spite  of defendant's claim that counsel's                    

errors were so pervasive  as to amount to  "no counsel at  all"),

cert. denied, 498 U.S. 990 (1990); Green v.Lynaugh, 868 F.2d 176,                                                            

177-78  (5th   Cir.)  (applying  full   Strickland  analysis   to                                                            

                                25

attorney's decision to conduct  "almost no investigation"), cert.                                                                           

denied,  493 U.S. 831 (1989); Henderson v. Thieret, 859 F.2d 492,                                                            

499  (7th Cir.  1988)  (applying second  prong  of Strickland  to                                                                       

attorney's  lack of preparation  in connection  with sentencing),

cert.  denied, 490 U.S. 1009  (1989); Gardner v.  Ponte, 817 F.2d                                                                 

183, 186-87 (1st Cir.)  (refusing to extend Cronic to  attorney's                                                            

failure to object to  jury instructions), cert. denied,  484 U.S.                                                                

863  (1987); State  v.  Savage, 577  A.2d  455, 466  (N.J.  1990)                                        

(finding no prejudice per se in a capital case where counsel only                                      

met once  with defendant).    Similarly, in  reviewing claims  of

ineffective assistance of counsel  at the appellate level, courts

have  declined to  apply Cronic  to attorney  errors that  do not                                         

amount to  the  constructive  absence of  counsel.    See,  e.g.,                                                                          

Hollenback v. United States, 987 F.2d 1272, 1276  &amp; n.1 (7th Cir.                                     

1993)  (finding  no  per  se  prejudice  in  appellate  counsel's                                      

citation to wrong provision  of money-laundering statute); United                                                                           

States v. Birtle, 792  F.2d 846, 847-48 (9th Cir.  1986) (finding                          

no per se prejudice when  defendant's appellate counsel failed to                   

appear at oral argument or file a reply brief).7
                                                  

     7Of course, courts have not required  a showing of prejudice
when the  attorney's inadequate performance completely denies the
defendant his right  to an appeal.  See, e.g.,  Bonneau v. United                                                                           
States, 961 F.2d 17, 23 (1st Cir.  1992) (requiring no showing of                
prejudice when  the defendant's appeal  was dismissed due  to his
lawyer's failure to file  a brief); United States ex  rel. Thomas                                                                           
v.  O'Leary,  856 F.2d  1011,  1016-17 (7th  Cir.  1988) (finding                     
prejudice  per se  when  defense counsel  filed  no brief  during                           
state's appeal  of a suppression  order and the  ensuing decision
was  thus based only on  the record and  the government's brief);
Williams v. Lockhart,  849 F.2d  1134, 1137 n.3  (8th Cir.  1988)                              
(finding prejudice per  se in attorney's failure to  bring appeal                                    
after promising to do so).

                                26

          These  authorities  suggest that  attorney  error, even

when  egregious,  will  almost   always  require  analysis  under

Strickland's prejudice prong.   We  agree.  Thus,  we decline  to                    

adopt the  expanded version  of Cronic  embraced by the  district                                                

court.  Our reasons are manifold, but four of them are paramount.

          First,  we do not think that the Court intended such an

expansion to  occur.  Second, once it is necessary to examine the

trial record  in order  to evaluate counsel's  particular errors,

resort to a per se presumption is no longer justified by the wish                            

to avoid the cost of case-by-case litigation.  An overly generous

reading of Cronic would do  little more than replace case-by-case                           

litigation  over  prejudice  with  case-by-case  litigation  over

prejudice per se.                          

          Third,  in  our judgment  the  proper  approach to  the

intended  reach  of  the   Cronic  dictum  is  informed  by   the                                           

refinements of the harmless-error doctrine contained in a battery

of  recent  Supreme Court  cases.    Some constitutional  errors,

denominated  "trial errors,"  will not  result in  reversal of  a

conviction  if they  are shown  to be  harmless.   See Brecht  v.                                                                       
                                                  

          The counterpoint, however, is that  in deciding whether
to require a showing of prejudice for inadequate legal assistance
on appeal,  courts have traced  a line,  analogous to the  one we
draw  today,  distinguishing  between inept  performance  and  no
performance.   See, e.g., Penson v.  Ohio, 488 U.S. 75, 88 (1988)                                                   
(requiring  no  showing  of  prejudice  when  defendant's  lawyer
withdrew  without filing  a brief  on appeal,  and distinguishing
this situation from  "a case  in which counsel  fails to press  a
particular  argument  on appeal  or fails  to  argue an  issue as
effectively as he or she might") (citation omitted); Bonneau, 961                                                                      
F.2d at 23 (requiring no showing of prejudice  but distinguishing
its  facts from "a case of sloppy briefing that missed some vital
issues" or a case of "inadequate oral argument").

                                27

Abrahamson, 113 S. Ct. 1710, 1722 (1993); Arizona v.  Fulminante,                                                                          

499  U.S.  279, 306-08  (1991).   Examples  of such  trial errors

include overbroad jury  instructions used  during the  sentencing

stage of a  capital case,  see Clemons v.  Mississippi, 494  U.S.                                                                

738, 752  (1990); jury instructions containing  an erroneous (but

rebuttable) presumption, see Carella v. California, 491 U.S. 263,                                                            

266-67  (1989);  and  improper   prosecutorial  comment  on   the

defendant's  silence, see United States v. Hasting, 461 U.S. 499,                                                            

509 (1983).  However,  other more fundamental errors, denominated

"structural  errors,"  jar  the  framework  in  which  the  trial

proceeds  and,  accordingly,  are   said  to  "defy  analysis  by

`harmless-error' standards," Brecht, 113  S. Ct. at 1717 (quoting                                             

Fulminante, 499  U.S. at  309), and, thus  necessitate "automatic                    

reversal of [a] conviction because  they infect the entire  trial

process,"  id.   In effect,  then, the harmfulness  of structural                        

errors  can be  conclusively  presumed.   Examples of  structural

errors, in addition to total deprivation of the right to counsel,

see Gideon v. Wainwright, 372 U.S. 335 (1963), include failing to                                  

give   a   constitutionally    sufficient   "reasonable    doubt"

instruction, see Sullivan v. Louisiana,  113 S. Ct. 2078, 2081-82                                                

(1993);   permitting  a   trial  to   proceed  before   a  biased

adjudicator, see Tumey  v. Ohio,  273 U.S. 510,  535 (1927);  and                                         

discriminatorily excluding  members of a defendant's  race from a

grand  jury, see Vasquez v. Hillery, 474 U.S. 254, 260-62 (1986),                                             

or a petit jury, see Batson v. Kentucky, 476 U.S. 79, 100 (1986).                                                 

The  "common thread"  connecting the  numerous examples  of trial

                                28

error listed by Chief Justice Rehnquist in Fulminante is that all                                                               

such errors occur  "during the  presentation of the  case to  the

jury,"  and  therefore may  "be  quantitatively  assessed in  the

context  of   [the]  evidence   presented"  in  order   to  gauge

harmlessness.  Fulminante, 499 U.S. at 307-08.                                   

          We  are confident  that  what transpired  in this  case

bears  a  much  stronger  resemblance  to  trial  error  than  to

structural error.   Like  the line separating  trial errors  from

structural errors, the line past which prejudice will be presumed

in cases  involving claims of ineffective assistance  ought to be

plotted to exclude cases in  which a detailed contextual analysis

is required.  Drawing the line in this way is especially fitting,

we   suggest,  because  like  the  harmless-error  doctrine,  the

prejudice prong of Strickland helps to promote the salutary tenet                                       

that  "the central purpose of  a criminal trial  is to decide the

factual  question  of the  defendant's  guilt  or innocence,  and

promote[]  public respect for the criminal process by focusing on

the underlying fairness of the trial rather than on the virtually

inevitable  presence  of  immaterial  error."   Delaware  v.  Van                                                                           

Arsdall, 475 U.S. 673, 681 (1986) (citation omitted).                 

          Our  fourth  and final  reason  for  taking a  somewhat

narrow  view of  the  Cronic dictum  is  closely related  to  the                                      

concerns  that  the Court  has  expressed  in the  harmless-error

cases.   In addition to comity and federalism concerns, the state

has  an important interest in  the finality of  its jury verdicts

and in keeping behind  bars criminals who have been  fairly tried

                                29

and justly convicted.   Forcing  a state to  retry its  criminals

imposes  social  costs, including  the  expenditure  of time  and

resources  for all concerned; the dispersal  of witnesses and the

erosion  of witnesses'  memories;  and the  occurrence of  sundry

other events that make obtaining  a conviction more difficult  on

retrial.  See Brecht, 113 S. Ct. at 1720-21; cf. Barker v. Wingo,                                                                          

407 U.S. 514, 522 n.16 (1972) (admonishing that the public has an

"interest in trying people accused of crime, rather than granting

them immunization  because of  legal error")  (citation omitted).

For this reason, federal  courts should not rush to  overturn the

state-court  conviction of a  defendant who, although represented

by mistake-prone counsel,  is unable to show how  (if at all) the

lawyer's  bevues undermined  the fairness  or reliability  of the

trial's result.8
                                                  

     8At any  rate, this is  not the  case in which  to push  the
envelope.   Even  if one  were to  accept the  expansive view  of
Cronic exemplified  by Swanson, 943  F.2d 1070,  the record  here                                        
simply  does not  justify  a finding  of  a complete  failure  to
subject the prosecution's case to meaningful adversarial testing.
Indeed, in  the  unpublished rescript  accompanying  its  summary
affirmance  of  Scarpa's  conviction,  the  Massachusetts Appeals
Court  did  not  even  find  Attorney  Tacelli's  conduct  to  be
"manifestly unreasonable."  See Commonwealth v. Scarpa, No. 90-P-                                                                
694,  at 2  (Mass. App.  Ct.  Mar. 7,  1991).   While  we do  not
necessarily agree with this evaluation, see supra Part III(C), we                                                           
recognize that whatever his  failings, Attorney Tacelli strove to
impress  the jury with  the gravity of  the prosecution's burden.
For  example, he focused in  his summation on  "the obligation of
the  Government to  prove their  [sic] case  beyond a  reasonable
doubt"; reminded the jurors that, in deciding the case, they must
"have  an  abiding conviction";  and  told them  that  they could
"choose to believe everything a witness says, disbelieve it, [or]
believe  half of  it."   Although Attorney  Tacelli weakened  his
presentation  by his later remarks, quoted ante, he still left it                                                         
up to the jury to decide the ultimate question of Scarpa's guilt.
Hence,  we do not find  in this record  such a deliberate rolling
over as might warrant a finding  of an absolute breakdown of  the

                                30

          To   summarize,  we   hold  that   Strickland  controls                                                                 

inquiries concerning  counsel's actual performance at  trial, and

that  substandard  performance,  in  the   nature  of  particular

attorney  errors, cannot  conclusively be  presumed to  have been

prejudicial.   Silhouetted against this backdrop,  we consider it

supremely  important that  Attorney Tacelli's blunders  cannot be

judged  solely   by  the   "surrounding  circumstances"  of   the

representation, but, rather, must be judged in light of the whole

record, including  the facts of  the case, the  trial transcript,

the exhibits, and  the applicable substantive  law.  We  conclude

that this characterization places the case beyond Cronic's reach.                                                                  

Put  bluntly,  because  Attorney  Tacelli's errors  are  more  an

example  of  maladroit   performance  than  of   non-performance,

Strickland necessitates  an inquiry into the  existence of actual                    

prejudice.

                                2.                                          2.

          Since the district court presumed prejudice, it made no

explicit findings on the second prong of the Strickland test.  We                                                                 

have considered  the advisability of remanding  for this purpose,

but we conclude that it is unnecessary to do so.  The  origins of

the case date back to 1987;  the parties have briefed and  argued

the  issue of actual prejudice;  and the record  is sufficient to

permit  us to perform the decisionmaking task.  Moreover, all the

evidence was taken in the state courts; thus, we are in as good a

position as the federal district judge to probe the matter.  And,
                                                  

adversarial process.

                                31

finally, even if  a finding were made below,  we would be obliged

to exercise de novo review, see supra p. 13.  This combination of                                               

factors  persuades  us  to  undertake  the  inquiry  into  actual

prejudice.

          A  convicted  defendant  can  establish  the  requisite

prejudice in  an ineffective  assistance case by  demonstrating a

reasonable probability that, but  for counsel's bevues, the trial

outcome   would  have  been  different.    For  this  purpose,  a

reasonable  probability  is  defined  as  that  which  undermines

confidence  in the result of the proceeding.  See Strickland, 466                                                                      

U.S. at 694; see  also Kotteakos v. United States, 328  U.S. 750,                                                           

764 (1946).  We caution however, that the analysis does not focus

solely on  outcome determination,  but also takes  into prominent

consideration  "whether   the  result   of  the  proceeding   was

fundamentally unfair  or unreliable."  Lockhart  v. Fretwell, 113                                                                      

S. Ct. 838,  842 (1993).  This question must  be answered without

reference to certain extraneous factors, such as "the possibility

of  arbitrariness,  whimsy,  caprice,  `nullification,'  and  the

like," which do not  legitimately enter the jury's deliberations.

Strickland,  466 U.S. at 695.  With these omissions, our analysis                    

proceeds "on the assumption that the decisionmaker is reasonably,

conscientiously,  and impartially  applying  the  standards  that

govern the decision."  Id.                                    

          Despite  Attorney Tacelli's  ineptitude, we  discern no

actual   prejudice  here.     The  government   presented  clear,

uncontroverted   eyewitness   testimony   from   an   agent   who

                                32

participated in  both drug-trafficking  transactions and  who had

conducted more  than 30 undercover operations  during his career.

Eight  other law officers assisted agent  Desmond and stood ready

to  testify in a substantially similar fashion if the need arose.

The risk of prejudice from Attorney Tacelli's ill-advised request

that the  jury credit the  government's witness was  minimized by

the   one-sidedness  of   the  evidence;   here,  there   was  no

contradictory  version of  the critical  events that  a skeptical

jury  otherwise might  have chosen  to believe.   Similarly,  any

facts  tacitly  conceded during  Attorney  Tacelli's misconceived

"conduit" argument were overwhelmingly supported by the proof; as

we  have mentioned,  the  record contains  not  one scintilla  of

exculpatory  evidence.   To this  day, petitioner  has  failed to

identify  any  promising  line  of  defense  or  to  construct  a

plausible scenario  that, if exploited, might have given the jury

pause.

          We agree with the district court's observation that, on

this record, it is difficult to imagine any rational jury failing

to convict.   Because there is  neither a reasonable  probability

that the outcome of the trial would have differed if  counsel had

been more adept  nor any solid basis for believing that the trial

was  fundamentally  unfair  or  unreliable,  no  Sixth  Amendment

violation inheres.

IV.  CONCLUSION          IV.  CONCLUSION

          We need go  no further.   Petitioner's habeas claim  is

ripe  for review, but,  upon due consideration,  the claim fails.

                                33

Hence,  the judgment below must be reversed and the case remanded

to  the  district court  for the  entry  of an  appropriate order

clearing the  way  for  the  Commonwealth to  resume  custody  of

petitioner.

Reversed and remanded.          Reversed and remanded.                               

                                34
