          United States Court of Appeals
                      For the First Circuit

No. 13-1642

                    CORINTHIAN C. HOUSEN, JR.,

                      Petitioner, Appellant,

                                v.

                   BRUCE GELB, SUPERINTENDENT,

                      Respondent, Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor, IV, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
                   Souter,* Associate Justice,
                    and Selya, Circuit Judge.


     Stewart T. Graham, Jr., with whom Graham & Graham was on
brief, for appellant.
     Todd M. Blume, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief, for
appellee.


                        February 24, 2014




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
             SELYA, Circuit Judge.      This habeas appeal, brought by a

state prisoner against a Massachusetts correctional official for

relief from a conviction and life sentence for first-degree murder,

is governed by the provisions of the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254.            In pertinent part,

the AEDPA instructs that a writ of habeas corpus may issue upon a

showing that the state court's decision "was contrary to, or

involved   an       unreasonable   application   of,   clearly   established

Federal law, as determined by the Supreme Court of the United

States."   Id. § 2254(d)(1).        This provision lies at the epicenter

of the petitioner's appeal.

             The petitioner's first claim of error involves what is

unarguably      a    clearly   established   constitutional      rule:   when

evaluating a claim of evidentiary insufficiency, "the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt."    Jackson v. Virginia, 443 U.S. 307, 319 (1979).                 The

petitioner asserts that, in his case, the state court recognized

this rule but applied it unreasonably.

             The second claim of error involves an allegation of

prosecutorial inconsistency.           At the petitioner's state-court

trial, the Commonwealth argued that he had shot and killed the

victim. At an earlier state-court trial, however, the Commonwealth


                                      -2-
argued    that    the   defendant   in     that   case   (the   petitioner's

accomplice) had shot and killed the victim. The petitioner asserts

that, under clearly established law, these inconsistent approaches

rendered his trial fundamentally unfair and deprived him of his

constitutional right to due process.

           After careful consideration of this asseverational array

against the backdrop of an amplitudinous record, we affirm the

district court's denial of habeas relief.

I.   BACKGROUND

           We touch lightly upon the factual findings of the state

court, supplementing those findings when necessary with consistent

record evidence.        See Tash v. Roden, 626 F.3d 15, 16 (1st Cir.

2010).    The reader who hungers for more exegetic detail should

consult   the    underlying    opinion     of   the   Massachusetts   Supreme

Judicial Court (SJC).       See Commonwealth v. Housen (Housen I), 940

N.E.2d 437, 440-42 (Mass. 2011).         "Because this appeal involves a

challenge to evidentiary sufficiency, we rehearse the facts in the

light most compatible with the jury's verdict . . . ."           Leftwich v.

Maloney, 532 F.3d 20, 21 (1st Cir. 2008).

           Near midnight on April 18, 2001, a Toyota Camry stopped

in front of an apartment house in Brockton, Massachusetts.              Three

men got out of the car.       Two of them entered the building while the

third pressed the front buzzer.          The third man then entered the




                                     -3-
lobby, but the record is unclear as to whether he proceeded

further.

           Fitzroy Hecker and his girlfriend, Kerry Murphy, shared

an apartment on the third floor of the building.        Hecker sold

marijuana from the apartment.   Murphy was in the bedroom when she

heard a voice (later identified as belonging to Damon Cannon)

saying "I don't know, an ounce."      She then heard someone with a

deeper voice say either "[r]un him" or "[r]un it."     According to

evidence adduced at trial, these phrases indicated that the men

were robbing Hecker.

           Murphy soon heard three gunshots in rapid succession and,

after a brief pause, a fourth shot.     She went to the living room

and saw a man sprinting into the common hallway while Cannon, with

a look of shock on his face, stood still.    After noticing Murphy,

Cannon fled.   He did not appear to be armed.

           Hecker, who had been shot twice in the neck and once in

the wrist, was bleeding profusely.    His gun lay on the floor near

his left hand.

           A third-floor neighbor heard the gunshots and then heard

two people running down the stairs, saying "[l]et's go, let's go."

He next heard "a car screeching off."        A second-floor tenant

likewise heard two people running down the stairs immediately after

hearing the gunshots.




                                -4-
            Although first responders arrived promptly, their efforts

failed to save Hecker. Uncontradicted medical evidence showed that

his death was caused by gunshots to the neck, fired at close range.

            Other evidence (including a DNA match) placed petitioner-

appellant Corinthian Housen in the room and revealed that he had

sustained a gunshot wound to his left hand.          Several hours after

the incident, the petitioner sought treatment at an emergency room.

He lied both about his identity and about the origin of his

injuries.

            On January 10, 2003, a state grand jury indicted the

petitioner on charges of, inter alia, murder and attempted armed

robbery.    The case was tried to a jury in Plymouth Superior Court.

The Commonwealth argued that the petitioner and Cannon attempted to

rob   Hecker   and   that,   when   the   robbery   attempt   soured,   the

petitioner shot Hecker while Cannon stood frozen in time.

            Testifying in his own defense, the petitioner admitted

that he went with Cannon and a third man, Leroy Drane, to purchase

marijuana from the victim. The petitioner asserted that Hecker was

standing in front of him when Hecker's facial expression changed

and he (Hecker) reached into the couch and retrieved a gun.              At

that point, the petitioner turned to flee but Cannon, who was

standing behind him, began firing at Hecker.          One of the bullets

struck the petitioner's hand, and he ran from the apartment.

Cannon and Drane followed.


                                    -5-
           Drane did not testify.          Although the petitioner placed

Drane in the room at the time of the murder, the neighbors'

accounts indicated that only two men, not three, fled from the

apartment after the shooting.

           The trial justice instructed the jurors that they could

find the petitioner guilty of first-degree murder either as a

principal or as a joint venturer under a felony murder theory. The

jurors ultimately found the petitioner guilty of first-degree

murder,   but   they   did   so   through    a    general   verdict   without

specifying whether the finding of guilt was as a principal or as a

joint venturer.1

           Following the imposition of a life sentence and other

proceedings not relevant here, the SJC took up the petitioner's

appeal.   He advanced several claims of error, including a claim of

evidentiary insufficiency and a due process claim based on the

Commonwealth's     advocacy,      albeit     in    different    trials,    of

inconsistent theories about the identity of the shooter.              The SJC

turned a deaf ear to the petitioner's importunings.            See Housen I,

940 N.E.2d at 447.

           The petitioner repaired to the federal district court and

sought habeas relief.    The district court denied the petition, see



     1
       The jury simultaneously convicted the petitioner on the
charge of attempted armed robbery. That conviction has not been
challenged in this habeas proceeding, and we do not refer to it
further.

                                    -6-
Housen v. Gelb (Housen II), No. 12-10623, 2013 WL 1694799, at *5

(D.   Mass.   Apr.        17,   2013),    but    granted   a    certificate     of

appealability    on    the      evidentiary     sufficiency    and   due   process

issues, see 28 U.S.C. § 2253(c).

II.   ANALYSIS

            In this instance, the district court did not conduct an

evidentiary hearing. Consequently, we review de novo its denial of

habeas relief.        See Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.

2006).    In conducting this appraisal, we examine the petitioner's

two claims of error sequentially.2

                     A.    Sufficiency of the Evidence.

            The Supreme Court's opinion in Jackson, 443 U.S. at 319,

supplies what is unarguably the clearly established federal law

anent the petitioner's first claim of error.               The SJC implicitly

employed this standard; it cited one of its own prior opinions,

which had adopted the holding in Jackson. See Housen I, 940 N.E.2d

at 442 (citing Commonwealth v. Latimore, 393 N.E.2d 370, 374-75

(Mass. 1979)).   Thus, "we can securely reason that in scouring the

record for Latimore error and finding none the SJC effectively

      2
       There is a considerable cacophony in the briefs about
whether the district court improperly applied 28 U.S.C.
§ 2254(e)(1) to the petitioner's evidentiary insufficiency claim.
See Housen II, 2013 WL 1694799, at *4-5. This is a tempest in a
teapot and we need not resolve it.          The determination of
evidentiary insufficiency presents a quintessentially legal
question, and our review of the district court's judgment is de
novo. See Leftwich, 532 F.3d at 23. In conducting that review, we
rely upon our independent assessment of the state-court record.

                                         -7-
answered the federal constitutional question."   Leftwich, 532 F.3d

at 24.

          The petitioner does not dispute this point but, rather,

challenges the SJC's application of the Jackson standard.       He

contends that the evidence was insufficient to sustain a conviction

on a theory of principal liability or, put another way, to show

that he shot Hecker.3

          The petitioner's evidentiary sufficiency argument pivots

on his assertion that the evidence did not show that only two men,

rather than three, entered Hecker's apartment before the murder.

This is important, he says, because there was no direct evidence

that the petitioner pulled the trigger, and the Commonwealth's case

for principal liability depended in material part on two facts:

that only the petitioner and Cannon were with Hecker and that


     3
       It may be that we do not have to resolve this contention.
In Commonwealth v. Zanetti, 910 N.E.2d 869 (Mass. 2009), the SJC
departed from its prior precedents and held that where, as here, a
defendant is tried on theories of principal and joint venture
liability and the jury returns a general verdict, it would no
longer "examine the sufficiency of the evidence separately as to
principal and joint venture liability."      Id. at 884.    In the
petitioner's subsequent appeal, the SJC, citing Zanetti, stated
that it did not need to determine whether there was sufficient
evidence that the petitioner was the shooter; but it nonetheless
proceeded to decide that question and found the evidence adequate
to ground a finding of principal liability.      See Housen I, 940
N.E.2d at 442.
     Zanetti was decided some years after Hecker's murder and the
petitioner's trial, but before the SJC heard the petitioner's
direct appeal. Because the SJC's suggested application of Zanetti
may be retroactive and therefore may evoke due process concerns, we
think it best to meet the petitioner's sufficiency of the evidence
argument head-on.

                               -8-
Cannon did not have a gun.      If a third man (Drane) was present,

Cannon's lack of a weapon would have much less significance.

          The    petitioner's   reading    of   the   record   is   overly

optimistic.     The record contains ample evidence to support an

inference that only the petitioner and Cannon were in the room with

Hecker at the time of the murder.       Murphy heard only two voices in

the living room and, within a matter of seconds after hearing the

shots, saw only Cannon and one other man in the living room.

Although Murphy could not identify the second man, the petitioner's

blood was found in the room and, in any event, the petitioner

admitted that he was there.      The conclusion that Cannon and the

petitioner were alone with Hecker is bolstered by the fact that the

neighbors heard only two voices and two sets of footsteps running

down the stairs.    A rational trier of fact could easily conclude

from this evidence that only two men had visited the apartment —

and that those two men were Cannon and the petitioner.

          Our holding that there was sufficient evidence to support

the inference that only two visitors were in the living room is

fatal to the petitioner's more general claim that the evidence was

insufficient to prove that he was the shooter.         Murphy testified

that, immediately after the shooting, Cannon did not appear to have

a gun.   The jury could reasonably infer from this evidence that

Cannon was not the shooter and, therefore, the petitioner must have




                                  -9-
fired the shots.4    Cf. Leftwich, 532 F.3d at 26 ("This lack of any

evidence pointing elsewhere bolstered the inference that it was the

petitioner who slew the [victim].").

             In an effort to blunt the force of this reasoning, the

petitioner asserts that the SJC misstated the record when reviewing

the evidence.    This assertion is fruitless: the facts that we have

described, virtually all of which are uncontradicted, demonstrate

the sufficiency of the evidence. The supposed misstatements do not

undermine that conclusion.

             The petitioner makes a related argument. Pointing to the

uncertainty about how many people were in the apartment, he insists

that where "the evidence viewed in the light most favorable to the

verdict gives equal or nearly equal circumstantial support to a

theory of guilt and a theory of innocence of the crime charged,

this court must reverse the conviction."       O'Laughlin v. O'Brien,

568 F.3d 287, 301 (1st Cir. 2009).      This is true as far as it goes

— but it does not take the petitioner where he wants to go.     While

the evidence may have permitted an inference that there were three

visitors in the apartment, it was not equally supportive of that

inference.    Moreover, the petitioner's argument blithely overlooks



     4
      The petitioner castigates the SJC for what he deems to be an
overly speculative account of how the murder occurred.         See
Petitioner's Br. at 26. We do not need to enter this debate. A
blow-by-blow account of the murder is not necessary to conclude
that there was sufficient evidence that the petitioner was the
shooter.

                                 -10-
the fact that we consider whether the evidence is in equipoise only

after we have drawn reasonable inferences in favor of the verdict.

See, e.g., Magraw v. Roden, ___ F.3d ___, ___ (1st Cir. 2014) [No.

13-1483, slip op. at 7]; Morgan v. Dickhaut, 677 F.3d 39, 53-54

(1st Cir.), cert. denied, 133 S. Ct. 449 (2012).

           Let us be perfectly clear.        Measuring the sufficiency of

the evidence in a circumstantial case is not an exact science. And

in this case, the conclusion that the petitioner was the shooter is

not ironclad.       On review for evidentiary sufficiency, though, "a

habeas court may not freely reweigh competing inferences but must

accept those reasonable inferences that are most compatible with

the jury's verdict."      Magraw, ___ F.3d at ___ [slip op. at 11].

           In   a    last-ditch   endeavor    to   turn   the   tables,   the

petitioner directs our attention to the SJC's treatment of Cannon's

direct appeal.      See Commonwealth v. Cannon, 869 N.E.2d 594 (Mass.

2007).   There, the SJC found the evidence insufficient to warrant

a conclusion that Cannon was the shooter.           See id. at 599.       The

court rested this finding in part on the likelihood that three men

(other than Hecker) may have been in the apartment at the time of

the murder.     See id. at 599-600.

           The decision in Cannon is of limited utility here.             The

petitioner and Cannon were tried separately, and the evidence

introduced in the two trials was not identical.             The proof that

there were only two men running down the stairs after the shooting


                                   -11-
appears to have been stronger in the petitioner's trial.           See id.

at 598 & n.10.     Perhaps more important, the petitioner did not

testify at Cannon's trial.      At his own trial, however, he not only

testified but also identified Cannon as the shooter.         In light of

that testimony, it strains credulity for him to argue, on this

record,   that   the   jury's   finding   is    infirm   because   of   the

possibility that a third man might have wielded the weapon.

           To say more about the Cannon opinion would be pointless.

The sufficiency of the evidence in any given case must be tested

against the record in that case. In performing that analysis, "the

minimum amount of evidence that the Due Process Clause requires

. . . is purely a matter of federal law."        Coleman v. Johnson, 132

S. Ct. 2060, 2064 (2012) (per curiam).         That law is exemplified by

Jackson and, reasonably applied, Jackson leads inexorably to the

conclusion that the evidence presented in the petitioner's state-

court trial was adequate to ground his conviction.

                  B.   Prosecutorial Inconsistency.

           The petitioner's second claim of error posits that the

Commonwealth's inconsistent positions as to who shot the victim and

the SJC's approval of the Commonwealth's tactics were "contrary to,

or an unreasonable application of, clearly established Federal law

as determined by the Supreme Court."      28 U.S.C. § 2254(d)(1).       The

petitioner asserts — and we agree — that, under clearly established

law, a criminal defendant has a due process right to a fair trial.


                                  -12-
See, e.g., Lisenba v. California, 314 U.S. 219, 236 (1941).            The

Supreme Court has held that certain specific kinds of prosecutorial

misconduct may abridge this fair-trial right.         See, e.g., Brady v.

Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution's

suppression   of   material   evidence    favorable    to   the   accused,

following defendant's request, violates due process); Napue v.

Illinois, 360 U.S. 264, 272 (1959) (reversing when state used false

testimony to secure conviction).         The petitioner invites us to

glean from these precedents a general principle that "a defendant's

due process right to a fair trial is violated when the prosecution

engages in conduct that deceives or misleads a court and jury, or

unfairly disadvantages the defendant in his defense." Petitioner's

Br. at 40.    Reminding us that "a federal court may grant relief

when a state court has misapplied a governing legal principle to a

set of facts different from those of the case in which the

principle was announced," Wiggins v. Smith, 539 U.S. 510, 520

(2003) (internal quotation marks omitted), he suggests that the

SJC's application of the fair-trial principle to the Commonwealth's

prosecutorial tactic was objectively unreasonable.5


     5
       The petitioner's brief is ambiguous as to whether his
argument is that the SJC's decision was "contrary to" or "an
unreasonable application of" federal law.      We think it plain,
however, that the SJC's decision cannot be deemed contrary to
federal law. The SJC did not "appl[y] a rule that contradicts the
governing law set forth" by the Supreme Court. Williams v. Taylor,
529 U.S. 362, 405 (2000). Nor did it "confront[] a set of facts
that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrive[] at a result different from

                                 -13-
          The district court dismissed this suggestion, holding

that the petitioner could not meet the "clearly established"

element of the section 2254(d)(1) test.      See Housen II, 2013 WL

1694799, at *5.       The court based its holding, in part, on the

Supreme Court's decision in Bradshaw v. Stumpf, 545 U.S. 175

(2005), in which the Justices confronted a habeas petitioner's

remarkably similar "assertions of inconsistency relate[d] . . . to

the prosecutor's arguments about which of" two codefendants shot

the victim, id. at 187.     There, the petitioner insisted that the

prosecution's argument to his sentencing panel was inconsistent

with its argument at his codefendant's trial and, therefore,

rendered his death sentence unconstitutional.    See id. at 180-82.

In response, the Court found it "at least arguable" that the

prosecution's use of inconsistent theories was material to the

sentence imposed.      Id. at 187.   But because the import of the

alleged inconsistency was not clear, the Court reserved the hybrid

question of "whether the prosecutor's actions amounted to a due

process violation, or whether any such violation would have been

prejudicial."   Id.    Consequently, the Court remanded the case for

further consideration.6




[the Court's] precedent."     Id. at 406.
     6
       On remand, the Sixth Circuit held, in a divided opinion,
that there was no due process violation. See Stumpf v. Robinson,
722 F.3d 739, 749 (6th Cir. 2013) (en banc).

                                 -14-
            The district court concluded that Bradshaw "left open the

question of whether the prosecution's use of inconsistent theories

of responsibility for a crime may constitute a violation of due

process."    Housen II, 2013 WL 1694799, at *5.   This circumstance,

in the district court's view, foreclosed the petitioner's argument

that the applicable law was clearly established.     See id.

            It is not transparently clear whether the Bradshaw Court

intended to leave open the precise question limned by the district

court. But we need not plunge into those murky waters. Consistent

with the de novo standard of review, we are not wed to the

reasoning of the court below but, rather, may affirm its decision

on any ground made manifest by the record.      See Pike v. Guarino,

492 F.3d 61, 71 (1st Cir. 2007).        We choose to exercise that

flexibility here.

            We think that the simplest way to approach this claim of

error is by gauging the reasonableness of the SJC's application of

clearly established due process principles to the petitioner's

prosecutorial inconsistency claim. The SJC implicitly acknowledged

the viability of the petitioner's due process theory, see Housen I,

940 N.E.2d at 444 (reviewing and distinguishing cases addressing

the inconsistent prosecution issue); considered whether the theory

applied to the facts presented; and concluded that it did not, see

id.




                                 -15-
             This multi-part determination was not unreasonable.

After all, the Supreme Court has never held that the prosecution of

different defendants in different trials on materially inconsistent

theories of guilt violates due process when, as in this case, state

law   permits   such   a    course    of   action.       Here,   moreover,    two

additional considerations weigh heavily in favor of a finding of

reasonableness.

             First, there is no indication that the prosecutorial

inconsistency of which the petitioner complains persisted through

the SJC's review of the petitioner's direct appeal.               The SJC heard

that appeal after it had held in a separate case that there was

insufficient evidence to convict Cannon as the shooter, vacated

Cannon's conviction, and remanded for trial on a theory of joint

venture   liability    only.         See   Cannon,      869   N.E.2d   at   605.

Accordingly, any potential inconsistency in result between the two

cases had been remedied by the time the SJC heard the petitioner's

appeal.

             Second,   we   disagree       with   the    petitioner    that   the

Commonwealth unfairly "manipulate[d] the evidence."                Petitioner's

Br. at 43.    To the exact contrary, the record is barren of any hint

of unfair manipulation.        In this respect, the petitioner's case

stands in sharp contrast to cases such as Smith v. Groose, 205 F.3d

1045 (8th Cir. 2000), in which the court (applying pre-AEDPA

standards) ruled that the prosecution's "zeal to obtain multiple


                                      -16-
murder convictions on diametrically opposed testimony render[ed the

petitioner's] convictions infirm."            Id. at 1052.      Here — unlike in

Smith    —    the    Commonwealth     used   mostly    the    same   evidence    in

prosecuting both Cannon and the petitioner.              Thus, it did not make

use of "inherently factually contradictory theories."                   Id.     Put

bluntly, the Commonwealth relied throughout on the same nucleus of

operative facts and merely argued for inconsistent inferences.

              In upholding the SJC's determination, we stress that our

narrow       focus   is   on    the   objective       reasonableness    of    that

determination, given the factual record.                     This case does not

require us to decide broadly whether or in what circumstances a

state's      prosecution   of    different    individuals       on   inconsistent

theories of guilt may violate due process, and we express no

opinion on those questions.

III.    CONCLUSION

              We need go no further. For the reasons elucidated above,

the judgment of the district court is



Affirmed.




                                       -17-
