          United States Court of Appeals
                     For the First Circuit

No. 14-1580

                         STEPHEN CRONIN,

                     Petitioner, Appellant,

                               v.

                   COMMISSIONER OF PROBATION,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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



                             Before

                    Barron, Selya and Stahl,
                         Circuit Judges.



     Edward Crane, with whom Law Office of Kevin Crane was on
brief, for appellant.
     Todd M. Blume, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief, for
appellee.



                          April 7, 2015
            SELYA, Circuit Judge.            In Doyle v. Ohio, 426 U.S. 610

(1976),     the    United     States     Supreme        Court   proscribed    the

prosecution's use of a defendant's post-Miranda silence in a

criminal case.      See id. at 619.      This state habeas case implicates

that proscription.        After careful consideration, we conclude that

even if the Massachusetts Appeals Court (MAC) misapplied the Doyle

rule — a matter on which we take no view — any comment on the

petitioner's silence was harmless when considered in the context of

the trial as a whole. Consequently, we affirm the district court's

denial of habeas relief.

I.    BACKGROUND

            We     briefly    rehearse        the   factual     and   procedural

background.       In May of 2009, petitioner-appellant Stephen Cronin

was charged in a Massachusetts state court with operating a motor

vehicle    under    the   influence     of    alcohol,     third   offense,   and

negligent operation of a motor vehicle.              See Mass. Gen. Laws ch.

90,   §   24(1)(a)(1),      (2)(a).     At     trial,    Officer   David   Jordan

testified that he witnessed a van veer into a motel parking lot in

Braintree, drive across a traffic island, and twice stop abruptly

before parking haphazardly.           Officer Jordan approached the van on

foot, keeping in view the driver (whom he identified as the

petitioner).       Officer Brian Eng, who was called to the scene to

provide backup, testified that the petitioner stated that he was

coming from Jamaica Plain and had consumed a few cocktails.


                                        -2-
Following   a   failed    field   sobriety   test,   the   petitioner   was

arrested. At some point during the booking process, the petitioner

was given written Miranda warnings, see Miranda v. Arizona, 384

U.S. 436, 444 (1966), and invoked his right to remain silent.

            The petitioner testified to a starkly different version

of the relevant events.       He claimed that he had not been driving

the van; rather, Michelle Sires (his quondam roommate) drove the

van back to the motel after running an errand.        The petitioner had

been drinking beer at the motel for most of the day and became

involved with the police, he said, only when he went to the van

that Sires had parked to retrieve a pack of cigarettes from the

glove compartment.       Officer Jordan confronted the petitioner just

as he exited the driver's side door, cigarettes in hand.                The

petitioner further testified that he told the officers that he was

not the driver.

            After eliciting this testimony, defense counsel asked:

"Did you ever tell [the officer] that your friend Michelle was

actually the driver of the van?"          The petitioner replied in the

negative. When defense counsel asked "Why didn't you do that?" the

petitioner responded, "Because she had a couple of warrants on

her."

            The prosecutor's cross-examination began as follows:

                   Q: Good afternoon. So you never told
            the officers anything about what you're
            telling us today?
                   A: What's that?

                                    -3-
                 Q: About Michelle.
                 A: No. No.
                 Q: You never told either of these
          officers?
                 A: No.
                 Q: You never told them during the
          course of your booking?
                 A: No.
                 Q: You thought you were arrested
          wrongly for a crime you didn't do?
                 A: Yes.
                 Q: But you never told the police
          anything about this over the hours you were
          with them?
                 A: No.

Michelle Sires did not testify (according to the petitioner, she

had moved to Florida shortly after his arrest).

          In his closing argument,1 the prosecutor pointed out a

number of inconsistencies between the officers' account and that of

the petitioner, and then stated,

          He never said anyone else was driving.     He
          said nothing about this Michelle individual
          . . . . Michelle never came out . . . if this
          person even exists; if she does exist, if she
          was even there . . . . He's concerned about
          this other person who has warrants; and yet,
          he's getting arrested, and he says nothing.
          Does that make any sense that someone would
          actually do that in . . . some sort of
          . . . chivalrous act that he'd do for this
          other individual?


     1
        While the petitioner did not make a contemporaneous
objection to either the prosecutor's line of questioning or closing
argument, he did move in limine to preclude reference to his "lack
of cooperation," citing Doyle.     The trial justice denied this
motion prior to trial. Under Massachusetts practice, the denial of
a pretrial motion in limine seeking to preclude the introduction of
evidence on constitutional grounds is reviewable without further
objection at trial. See Commonwealth v. Whelton, 696 N.E.2d 540,
543 (Mass. 1998).

                               -4-
          In her summation, defense counsel asserted that the

petitioner "told the officers that he was not driving, but he did

not tell them that Ms. [Sires] was driving.   He did not tell them

because she had warrants out for her arrest, and he did not want

her to get in trouble."   She suggested that "[t]he only thing that

Mr. Cronin may be guilty of is misguided chivalry."

          The jury rejected the petitioner's exculpatory tale and

found him guilty.   The trial justice sentenced the petitioner to a

term of imprisonment followed by a term of probation.

          The petitioner appealed. Pertinently, he complained that

the prosecutor's cross-examination and closing argument constituted

constitutionally forbidden commentary on his post-Miranda silence.

The MAC spurned this plaint, see Commonwealth v. Cronin, 978 N.E.2d

592 (Mass. App. Ct. 2012) (table), full text at 2012 WL 6027750,

and the Supreme Judicial Court summarily denied the petitioner's

application for further appellate review, see Commonwealth v.

Cronin, 982 N.E.2d 1188 (Mass. 2013) (table).

          The petitioner repaired to the federal district court in

search of habeas relief, see 28 U.S.C. § 2254, naming as the

respondent the Commissioner of Probation of the Commonwealth of

Massachusetts.   The district court rebuffed his habeas petition,

see Cronin v. Comm'r of Prob., No. 13-11169, 2014 WL 1784056, at *6

(D. Mass. May 2, 2014), but issued a certificate of appealability,

see 28 U.S.C. § 2253(c), limited to the question of whether the


                                -5-
MAC's decision was contrary to or an unreasonable application of

the Doyle rule. This timely appeal followed. While the petitioner

has fully served the incarcerative portion of his sentence, he

remains on probation and, thus, in custody for federal habeas

purposes.    See 28 U.S.C. § 2254(a); Jackson v. Coalter, 337 F.3d

74, 78-79 (1st Cir. 2003).

II.   ANALYSIS

            The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, governs federal

habeas review of state-court convictions. See id. § 104, 110 Stat.

at 1218-19 (codified as amended at 28 U.S.C. § 2254).      Under the

AEDPA's peculiarly deferential standards, error by a state court,

without more, is not enough to warrant federal habeas relief.    See

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc).

The AEDPA contemplates increments of error: to warrant habeas

relief, the last reasoned state-court decision must be not only

erroneous but also "contrary to," or infected by "an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States."     28 U.S.C. § 2254(d)(1);

see Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).      In conducting

this inquiry, state-court factual findings are presumed correct,

and that presumption may be overcome only by clear and convincing

proof.   See 28 U.S.C. § 2254(e)(1); Ouber v. Guarino, 293 F.3d 19,

27 (1st Cir. 2002).


                                 -6-
           Under the first furculum of the AEDPA regime, a decision

is contrary to clearly established federal law either if it

announces a rule of law that directly contradicts existing Supreme

Court precedent or if the state court has reached a different

result than the Supreme Court on materially indistinguishable

facts.    See Williams v. Taylor, 529 U.S. 362, 412-13 (2000);

Foxworth v. St. Amand, 570 F.3d 414, 424 (1st Cir. 2009).           Under

the   second   furculum,   an   unreasonable   application    of   clearly

established federal law occurs when:

           the state court correctly identifies the
           governing legal principles, but (i) applies
           those principles to the facts of the case in
           an objectively unreasonable manner; (ii)
           unreasonably extends clearly established legal
           principles to a new context where they should
           not apply; or (iii) unreasonably refuses to
           extend established principles to a new context
           where they should apply.

Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007).

           That these standards are strict is no accident.            The

Supreme Court has admonished that federal habeas relief is to be

granted only sparingly and is reserved for cases in which "there is

no possibility fairminded jurists could disagree that the state

court's   decision   conflicts     with   this   Court's     precedents."

Harrington v. Richter, 131 S. Ct. 770, 786 (2011); see Janosky v.

St. Amand, 594 F.3d 39, 47 (1st Cir. 2010) ("To justify federal

intervention, the state court's application must be both incorrect

and unreasonable.").   And even if the state court's decision fails


                                   -7-
this deferential test, federal habeas relief will not follow unless

the error had a "substantial and injurious effect or influence in

determining the jury's verdict."         Brecht v. Abrahamson, 507 U.S.

619, 638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)).

            With this analytic framework in place, we turn to the

case at hand.   Our review of the district court's disposition of a

habeas petition is de novo.       See Lynch v. Ficco, 438 F.3d 35, 44

(1st Cir. 2006).

            Here, the last reasoned state-court decision is that of

the MAC.    The petitioner submits that the MAC's decision was both

contrary to and an unreasonable application of clearly established

federal law because the prosecutor's questions and comments about

his failure to mention Michelle at or after the time of arrest

contravened    Doyle   and,   therefore,   abridged   his   right   to   due

process.2

            Under the AEDPA, clearly established federal law is that

articulated by the Supreme Court, not that articulated by lower

federal courts. See 28 U.S.C. § 2254(d)(1); Renico v. Lett, 130 S.

Ct. 1855, 1865-66 (2010).      Both sides acknowledge that the clearly


     2
       The petitioner concedes that no due process violation occurs
when a prosecutor uses a defendant's pre-Miranda silence to impeach
his trial testimony.    See Fletcher v. Weir, 455 U.S. 603, 607
(1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 240 (1980).
For present purposes, we assume (favorably to the petitioner) that
at least some of the questions and comments at issue were directed
at the petitioner's post-Miranda silence.

                                   -8-
established federal law governing this claim derives from the

Supreme Court's decision in Doyle.           There, the defendants claimed

for the first time at trial that they had been framed.              See 426

U.S. at 612-13.        The state courts permitted the prosecution to

impeach this claim by asking why the defendants had not related the

frame-up story to the authorities at the time of arrest.             See id.

at 613-16.    The defendants argued that this tactic violated their

constitutional rights, and the Supreme Court agreed.              See id. at

616, 619.

             The Court began by explaining that the Miranda warnings

convey an implicit assurance to anyone who receives them that

"silence will carry no penalty." Id. at 618. Citing this implicit

assurance,    the    Court   held   that    the   prosecution's   use   of   a

defendant's post-Miranda       silence for impeachment purposes was

"fundamentally unfair" and, thus, offended the Due Process Clause.

Id. at 618-19.       "[T]he unfairness occurs," the Court explained,

"when the prosecution, in the presence of the jury, is allowed to

undertake impeachment on the basis of what may be the exercise of

[the] right [to remain silent]."           Id. at 619 n.10; see Wainwright

v. Greenfield, 474 U.S. 284, 292 (1986) ("The point of the Doyle

holding is that it is fundamentally unfair to promise an arrested

person that his silence will not be used against him and thereafter

to breach that promise by using the silence to impeach his trial

testimony.").       The Court reasoned that "every post-arrest silence


                                     -9-
is insolubly ambiguous" because "[s]ilence in the wake of [Miranda]

warnings may be nothing more than the arrestee's exercise of these

Miranda rights."    Doyle, 426 U.S. at 617.

          Viewed against this backdrop, we can swiftly dispose of

the petitioner's assertion that the MAC's decision in this case was

contrary to Doyle.        Although the contested cross-examinations in

each case bear a family resemblance to one another, the direct

examinations were quite different. Unlike in Doyle, the petitioner

testified at some length on direct examination about his statements

to the police, including his claim of innocence at or around the

time of his arrest.       He tried to bolster his tale by offering an

explanation   for   his    failure   to     disclose   the   actual   driver's

identity at an earlier time.         This stands in marked contrast to

Doyle, where the defendants did not raise — much less affirmatively

explain — their post-arrest silence on direct examination.

          In upholding the petitioner's conviction, the MAC relied

on this distinction: it noted that the petitioner himself had

brought up the subject of his post-arrest silence and tried to

wield it affirmatively in marshaling his defense.               It therefore

concluded that the prosecution was entitled to cross-examine him

"as to his postarrest silence because [his] explanation for his

silence was the basis for his defense."           Cronin, 2012 WL 6027750,

at *1.   The petitioner's use of silence as a sword rather than a

shield sufficiently distinguishes this case from Doyle to defeat a


                                     -10-
claim that the MAC's decision is contrary to clearly established

federal law.      See Williams, 529 U.S. at 406.

            The more vexing question is whether the MAC unreasonably

applied    Doyle       either    by   construing        it     in   an    objectively

unreasonable manner or by refusing to extend it to the facts at

hand.      In   this    regard,    the   petitioner      insists     that    the   MAC

misapprehended the limits that Doyle placed on the scope of cross-

examination after a defendant opens the door by affirmatively

raising the fact of his silence.

            The    petitioner      concedes      that    his    "introduction       and

explanation of his silence opened the door for the prosecutor to

argue that this explanation was not credible," but contends that

the prosecutor transgressed the letter (or at least the spirit) of

Doyle when he "argued that the [petitioner's] silence was itself

inconsistent with innocence."            Appellant's Br. at 17-18.           At oral

argument, the petitioner identified a single sentence of the

prosecutor's       cross-examination        as    the        embodiment     of     this

transgression: "But you never told the police anything about this

over the hours you were with them?"               In context, the meaning of

"this" is ambiguous: it might refer, as the Commonwealth contends,

to   the   petitioner's         testimony   about       Michelle     (a   concededly

permissible inquiry).           But it also might refer, as the petitioner

contends, to the petitioner's belief that he was "arrested wrongly

for a crime [he] didn't do" (arguably a Doyle violation).


                                         -11-
               We need not resolve this dispute.               Even were we to

conclude that a Doyle error occurred and that the MAC faltered in

this    respect    —    matters   upon    which    we   take   no    view   —   the

petitioner's cause would not be advanced.               We explain briefly.

               For an improper question or comment to warrant relief

under    the    AEDPA,    the   question    or    comment   must     have   had   a

"substantial and injurious effect or influence in determining the

jury's verdict."         Brecht, 507 U.S. at 637 (quoting Kotteakos, 328

U.S. at 776).      Here, as in Brecht, the evidence of guilt "was, if

not     overwhelming,      certainly     weighty."       Id.    at   639.       The

Commonwealth offered competent evidence that the petitioner was

seen driving the van erratically, failed a field sobriety test, and

admitted to police that he was returning from Jamaica Plain (where

he had consumed a few cocktails).             While a reasonable jury might

have accepted the petitioner's version of events, the jury in this

case surely was entitled to reject that version in favor of the

officers' account.

               In all events, the prosecutor's ambiguous question on

cross-examination constituted, at most, a single misstep among

extensive and permissible references to the petitioner's silence.

As the petitioner conceded at oral argument, nearly all of the

prosecutor's references to the petitioner's silence were plainly

directed at the credibility of the petitioner's late-blooming story

about Michelle.        See United States ex rel. Saulsbury v. Greer, 702


                                       -12-
F.2d 651, 655-56 (7th Cir. 1983). Furthermore, the record does not

reveal the timing of the Miranda warnings given to the petitioner.

Consequently,     many    (if   not   all)    of    these     references   can    be

reasonably understood as comments on pre-Miranda silence, which are

not constrained by Doyle.         See Fletcher v. Weir, 455 U.S. 603, 606

(1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 240 (1980).

It follows that the jury knew from admittedly proper evidence (some

of which was generated by the petitioner himself) about the

petitioner's    silence     and   doubtless        would    have   drawn   its   own

conclusions — favorable or otherwise — about the significance of

that   silence.          Silhouetted     against       this     background,      the

prosecutor's ambiguous reference to the petitioner's post-Miranda

silence, even if proscribed, was "in effect, cumulative," and thus

harmless.   Brecht, 507 U.S. at 639.

            We think, too, that the prosecutor's closing argument

mitigated any possible bevue in his cross-examination.                 The thrust

of the argument was that no one is so chivalrous as to refrain from

pointing the finger at the real culprit when doing so would head

off a wrongful arrest: if Michelle really existed and if she was

the driver, her outstanding warrants were not a credible reason for

failing to mention her to the police.              This was a permissible line

of argument, and likely steered the jury's attention away from a

direct inference of guilt from silence and toward a permissible




                                       -13-
inference that the professed reason for the petitioner's silence

(misguided chivalry) was incredible.

            In the last analysis, impeachment of one part of a

defendant's testimony (his ostensible justification for remaining

silent) has a natural tendency to encourage the jury to discredit

the rest of his testimony (including his claim of innocence).             See

Saulsbury, 702 F.2d at 656.       To the extent that an inference that

the petitioner's explanation was bogus necessarily bled into an

inference that his silence undercut his claim of innocence, we are

on   this   record   "not   persuaded     that   the   rather   sophisticated

distinction    between      permissible    comment     on   credibility   and

impermissible comment on an inference of guilt justifies a reversal

of th[is] state conviction[]."          Doyle, 426 U.S. at 636 (Stevens,

J., dissenting); see Saulsbury, 702 F.2d at 656 (adopting this

reasoning).

            We need go no further.           Under the Brecht standard,

federal habeas relief in unavailable to the petitioner unless he

can show "actual prejudice" from the purported Doyle violation.

Brecht, 507 U.S. at 637.        Seen in the setting of the trial as a

whole, he has failed to clear that high bar.                Accordingly, the

district court did not err in denying habeas relief.



Affirmed.




                                    -14-
