
USCA1 Opinion

	




          March 8, 1994     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2105                                   THOMAS A. MAGEE,                                Petitioner, Appellant,                                          v.                              SCOTT HARSHBARGER, ET AL.,                               Respondents, Appellees.                                 ____________________                                     ERRATA SHEET               The opinion  of this  COurt issued on  February 24,  1994 is          amended as follows:               On cover sheet under list of counsel "Elizabeth J. Medvedow"                                                     _____________________          should be corrected to read "Elisabeth J. Medvedow."                                       _____________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2105                                   THOMAS A. MAGEE,                                Petitioner, Appellant,                                          v.                              SCOTT HARSHBARGER, ET AL.,                               Respondents, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                                Bownes, Senior Judge,                                        ____________                              and Selya, Circuit Judge.                                         _____________                                 ____________________               Brownlow M.  Speer with  whom Committee  for Public  Counsel               __________________            ______________________________          Services was on brief for appellant.          ________               Elisabeth J. Medvedow, Assistant Attorney General, with whom               _____________________          Scott Harshbarger, Attorney General, was on brief for appellees.          _________________                                 ____________________                                  February 24, 1994                                 ____________________                      BOWNES, Senior Circuit Judge.  Petitioner Thomas A.                      BOWNES, Senior Circuit Judge.                              ____________________            Magee appeals the district court's denial of his petition for            a  writ of habeas  corpus.    The  district court  ruled that            petitioner  failed to  satisfy  the "cause"  and  "prejudice"            requirement  which  must  be met  before  federal  courts can            collaterally  review  the  merits  of procedurally  defaulted            constitutional claims.  Because petitioner has failed to show            "cause" for his procedural default, we affirm.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      We  recite the facts pertinent to the issues raised            on  this appeal.1   Petitioner was  tried in  a Massachusetts            state  court, along with  his co-defendant Patrick  Tracy, on            charges of armed robbery, carrying a firearm, and  receipt of            stolen property.   The  jury found  petitioner guilty of  the            first two offenses but acquitted him of the third.2                      During the  trial  the  Commonwealth  offered  into            evidence a "booking slip" that had been completed by a police            officer  shortly after petitioner's arrest.  The booking slip            contained biographical information such as petitioner's  age,                                            ____________________            1.  A  full recitation  of  the  facts can  be  found in  the            opinion  of the Massachusetts Appeals Court.  Commonwealth v.                                                          ____________            Tracy, 539 N.E.2d  1043 (Mass. App. Ct.  1989), review denied            _____                                           ______ ______            sub nom., Commonwealth v. Magee, 542 N.E.2d 602 (Mass. 1989).            ___ ____  ____________    _____            2.  Tracy, a Vietnam  veteran, was found not guilty  of armed            robbery by  reason of  insanity stemming from  post-traumatic            stress  disorder.   Tracy,  539  N.E.2d  at  1044.   He  was,                                _____            however, convicted of the two other charges.  Id.                                                          ___                                         -2-                                          2            height and weight.  The lines directly below this information            were reserved for petitioner's offense.  Petitioner's offense            was  written in large  block letters  as "C.  265    17 ARMED            ROBBERY  WITH A  DANGEROUS WEAPON."   Just  after this  entry            appears  a  second,  smaller  notation:   "2  c.  265     18B            committing an offense while using a firearm (2nd offense)."                                                           __                      On the same  day that the prosecution  received the            booking  slip  from  the police,  it  offered  the  slip into            evidence.  Prior to the introduction of the booking slip into            evidence,   defense  counsel  had   a  brief  but  sufficient            opportunity  to  examine it.    Tracy,  539 N.E.2d  at  1047.                                            _____            Defense counsel failed  to notice the "2nd  offense" notation            and  proceeded   to  cross-examine  the  police  officer  who            completed  the slip about  addresses on  it.   Id.   The only                                                           ___            objection  raised  by  defense counsel  with  respect  to the            booking slip was that the  Commonwealth was in violation of a            pretrial discovery agreement.                      Three  days  after  the  jury  returned  its guilty            verdict defense  counsel  first  noticed  the  "2nd  offense"            notation, and moved  for a new  trial on the ground  that the            allegedly prejudicial  second offense  notation rendered  his            trial  fundamentally unfair.    The motion  was  denied.   On            direct  review the Appeals Court held that because petitioner            did not seek to exclude  the booking slip from evidence based            upon  the "2nd  offense" notation  at the  time the  slip was                                         -3-                                          3            offered  by the government, he had procedurally defaulted his            booking slip objection.  Therefore,  under Massachusetts law,            petitioner's  conviction  would  be  upheld  unless he  could            demonstrate a "substantial risk of a miscarriage of justice."            Tracy, 539  N.E.2d at  1046.  Not  finding such,  the Appeals            _____            Court affirmed petitioner's  conviction, and his  application            for  review before  the Supreme  Judicial  Court was  denied.            Commonwealth v. Tracy, 539 N.E.2d 1043 (Mass. App. Ct. 1989),            ____________    _____            review denied sub nom., Commonwealth v. Magee, 542 N.E.2d 602            ______ ______ ___ ____  ____________    _____            (Mass. 1989).  Petitioner then sought a writ of habeas corpus            from the  United States  District Court  for the  District of            Massachusetts.    The  petition was  denied  and  this appeal            ensued.                                          II.                                          II.                                      DISCUSSION                                      DISCUSSION                                      __________                      Federal habeas review is generally precluded when a            state court reaches its decision  on the basis of an adequate            and independent state  ground.  Coleman  v. Thompson, 111  S.                                            _______     ________            Ct. 2546, 2553-54  (1991); Harris v. Reed, 489  U.S. 255, 262                                       ______    ____            (1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).  Where a                    __________    _____            state  court  decision  rests on  a  petitioner's  failure to            comply with a  contemporaneous objection rule at  the time of            trial, this constitutes  an adequate and independent  ground.            Wainright, 433 U.S. at 87.            _________                                         -4-                                          4                      Under  prevailing  habeas corpus  jurisprudence,  a            defendant's failure to comply with  a state's contemporaneous            objection  rule  at  trial  forecloses  judicial scrutiny  on            collateral  review   if  "1)   the  state   in  fact   has  a            `contemporaneous objection' rule;  2) the state  enforces and            does  not waive the rule; and  3) the defendant fails to show            both  `cause' for and  `prejudice' from, not  having complied            with  the rule."   McCown  v. Callahan,  726 F.2d  1, 3  (1st                               ______     ________            Cir.), cert. denied, 469 U.S.  839 (1984); see also Puleio v.                   _____ ______                        ___ ____ ______            Vose, 830 F.2d 1197, 1199  (1st Cir. 1987), cert. denied, 485            ____                                        _____ ______            U.S.  990 (1988); Allen v. Commonwealth of Massachusetts, 926                              _____    _____________________________            F.2d 74, 78 (1st Cir. 1991).3                      On  appeal,   petitioner  does  not   dispute  that            Massachusetts has such a contemporaneous objection rule, that            it   enforces  its  rule,  and   does  not  waive  the  rule.            Accordingly, our inquiry  focuses on  whether petitioner  can            show cause  for his procedural  default as well  as prejudice            from the alleged  violation.  Petitioner maintains  that "the            factual basis  for the  claim [that the  booking slip  should            have  been   excluded  because  it  contained  a  prejudicial            notation]  was not  reasonably  available  to [his]  counsel,                                            ____________________            3.  Although  an  exception  to   the  cause  plus  prejudice            requirement exists where failure to consider the claim on the            merits  would result in a fundamental miscarriage of justice,            Coleman v. Thompson, 111 S.  Ct. at 2564, petitioner does not            _______    ________            contend  that this  exception  applies.   In  any event,  the            record does not support such a claim.                                         -5-                                          5            because official misconduct (the prosecutor's introduction of            an irrelevant document as an  exhibit) made it likely that he            would not notice the prejudicial notation in the document  at            the time it was offered."  Brief for Petitioner at 26.                      In  order  to  establish  cause  for  the  default,            petitioner  must  demonstrate  "that  some  objective  factor            external to  the defense impeded [defense]  counsel's efforts            to  comply with  the  State's procedural  rule."   Murray  v.                                                               ______            Carrier, 477 U.S. 478, 488 (1986).  Two objective impediments            _______            identified by  the Court  as sufficient  to constitute  cause            under this standard  are (1) that the factual  or legal basis            for a claim was not reasonably available to defense  counsel,            or  (2)   that  interference  by  officials  made  compliance            impracticable.  Id.                            ___                      As a preliminary  matter, the Commonwealth  argues,            and  our  review  of the  record  reveals,  that petitioner's            "cause" argument  has  undergone some  alterations since  the            district court denied his petition.  Below, petitioner argued            that "cause"  for  his  procedural  default  existed  because            defense counsel did  not have sufficient time  to examine the            booking slip.  Petitioner also argued that his attorney could            not have been  expected to examine the booking  slip prior to            trial  since  the  document  was  irrelevant.    There is  no            indication  in  the  record,  however,  that petitioner  ever            presented  the district  court  with its  present contention,                                         -6-                                          6            i.e., that  the prosecutor knowingly proffered  an irrelevant            ____            document in order  to introduce prejudicial information  into            evidence.    It  is  a  settled rule  in  this  circuit  that            "theories not raised squarely in the district court cannot be            surfaced  for   the  first  time   on  appeal."     McCoy  v.                                                                _____            Massachusetts Inst. of  Technology, 950 F.2d 13, 22 (1st Cir.            __________________________________            1991), cert. denied, 112 S. Ct. 1939 (1992).                   _____ ______                      Nonetheless,  assuming  arguendo  that petitioner's                                              ________            current "cause" theory is  properly before us, we  are unable            to find any "external impediments" to trial counsel's failure            to  timely  notice  the allegedly  prejudicial  entry  on the            booking slip.  The government's introduction into evidence of            an  irrelevant  document   containing  allegedly  prejudicial            information did not obviate defense counsel's  responsibility            nor in  any way impair  his ability to carefully  examine the            entire booking  slip.4   This  is  particularly true  in  the            instant  case,  where  defense  counsel  extensively   cross-            examined the  officer who  completed the  booking slip  about            other information  contained on  the slip.   Defense  counsel            even moved for a mistrial on the basis of that information.                      Moreover,  the factual basis for the claim was more            than reasonably  available to  defense counsel  prior to  the                                            ____________________            4.  Petitioner's  focus  on   the  booking  slip's   lack  of            relevance is long  past due.  Although the  Appeals Court did            note that the booking  slip was not relevant to  any issue at            trial, Tracy,  539 N.E.2d  at 1046,  defense counsel  did not                   _____                                              ___            object at trial to the slip's admission on this ground.                                         -7-                                          7            admission of the  booking slip into evidence.   The allegedly            prejudicial notation  was on the  face of the slip  which was            given to defense  counsel for examination prior  to admission            into evidence.  As the  Appeals Court noted, "counsel may not            have had much time to look  at the booking slip prior to  its            introduction," but he  "had ample time  to examine the  slip"            after it was offered.  Tracy, 539 N.E.2d at 1047.                                   _____                      As    for   petitioner's    implicit   charge    of            prosecutorial misconduct, the  Appeals Court  ruled that  the            prosecution  did not violate  any discovery agreement  by not            producing the booking  slip prior to trial, id.  at 1046, and                                                        ___            that  court assumed that the prosecution did not deliberately            conceal knowledge of the booking  slip or its contents at any            time.   Id. at  1047 n.7.   Petitioner has  not presented any                    ___            evidence  of   misconduct,  but   merely  alleges   that,  by            introducing  an   irrelevant  document  into   evidence,  the            government  was necessarily motivated  by an illicit purpose.            We do not find this reasoning persuasive.                        We   can  perceive   no  external   impediments  to            petitioner's    compliance     with    the     Commonwealth's            contemporaneous  objection rule.    Petitioner  has tried  to            overcome his attorney's oversight by putting the blame on the            prosecutor.   This facade cannot cure petitioner's failure to                                         -8-                                          8            demonstrate cause for  his procedural default.5   Because the            cause and prejudice  requirement is conjunctive, we  need not            consider  the latter  element where the  former has  not been            satisfied.  Puleio v. Vose, 830 F.2d at 1202.                        ______    ____                      The judgment of the district court is Affirmed.                                                            Affirmed                                                            ________                                            ____________________            5.  It  is well  settled  that  "[a]ttorney  error  short  of            ineffective assistance  of counsel . . .  does not constitute            cause and will not  excuse a procedural default."   McCleskey                                                                _________            v. Zant, 499 U.S. 467, __, 111 S.  Ct. 1454, 1470 (1991).  As               ____            the district court noted, petitioner has not alleged that his            representation  at  trial   was  constitutionally  deficient.            Magee  v. Harshbarger,  No. 92-13090-WD,  slip  op. at  8 (D.            _____     ___________            Mass.  July   7,  1993).     Moreover,   at  oral   argument,            petitioner's  counsel  specifically disclaimed  any  argument            along these lines.                                         -9-                                          9
