          United States Court of Appeals
                     For the First Circuit


No. 09-1059

                         MICHAEL LYONS,

                     Petitioner, Appellant,

                               v.

                         BERNARD BRADY,

         Superintendent, Old Colony Correctional Center,

                      Respondent, Appellee.


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

         [Hon. Nathaniel M. Gorton, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
              Howard and Thompson, Circuit Judges.



     Paul J. McManus for appellant.
     Eva M. Badway, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.



                        January 17, 2012
             THOMPSON, Circuit Judge.        A Massachusetts jury convicted

petitioner Michael Lyons ("Lyons") of second-degree murder in the

death of his two week old son.         Lyons timely filed a motion seeking

to reduce the verdict to involuntary manslaughter, which the trial

court granted and the Massachusetts Appeals Court ("MAC") affirmed.

However, on appeal to the Supreme Judicial Court ("SJC"), the court

vacated the reduction and reinstated Lyons's original conviction

for second-degree murder.         Thereafter, Lyons sought a writ of

habeas corpus in federal district court claiming a violation of his

constitutional     rights      under     the        Fourteenth     Amendment   --

specifically,     that   the   admission       of    autopsy     photographs   had

deprived him of a fair trial.           The district court dismissed the

petition and Lyons appealed to this court.                     Before us, Lyons

challenges the dismissal of his habeas petition.                    Bound by the

strictures of the standard of review set forth in the Antiterrorism

and Effective Death Penalty Act ("AEDPA"), we affirm.

I.   BACKGROUND

A.   Facts

             We review the facts as described by the SJC "supplemented

with other record facts consistent with the SJC's findings."

Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009) (internal

quotation marks and citation omitted).

             On the afternoon of June 28, 1998, Lyons's two week old

infant son was rushed to Good Samaritan Hospital and then "med


                                       -2-
flighted" to New England Medical Center in Boston –- he died there

as a result of "severe cerebral edema and subdural hematomas due to

shaking."     Commonwealth v. Lyons, 828 N.E.2d 1, 4 (Mass. 2005).

Lyons, who was approximately five feet eight inches tall and

weighed between 275 and 300 pounds, admitted to police that he had

shaken the baby.    Id.    Lyons described how he had placed his hands

underneath the baby's armpits and shaken his son. Id. Apparently,

he did so with enough force to shake a 215 pound man.          Id.

             At trial, three autopsy photographs were introduced over

Lyons's objection.        Id. at 8.     The trial court instructed the

jurors that the pictures were being introduced for the limited

purpose of "draw[ing] attention to a clinical medical status or to

the nature and extent [] of the alleged victim[] in [this] case."

There were bruises on both sides of the baby's upper back muscles

just below his neck, and his body showed all the tell tale signs of

shaken baby syndrome, which "essentially destroyed his brain." Id.

at 4.     Due to the severity of the child's injuries, he would have

lost consciousness and become unresponsive "nearly instantaneously

or within a very few seconds."              Id.   While Lyons admitted to

shaking his son, he claimed that he did so out of panic, in an

attempt to revive the baby, after finding the baby non-responsive.1

Id.     The crux of Lyons's defense was that he had acted without



      1
      Five years earlier, Lyons and his wife had suffered the loss
of another infant son due to natural causes.

                                      -3-
legal malice and was therefore guilty of involuntary manslaughter,

not second-degree murder.2   Id.

B.    Procedural History

            On July 13, 2001, a state court jury found Lyons guilty

of murder in the second degree for the death of his infant son.

Lyons appealed and filed a motion pursuant to Mass. R. Crim. P.

25(b)(2), seeking a reduction of the verdict from second-degree

murder to involuntary manslaughter.       The Commonwealth opposed the

motion.    In its Memorandum of Decision and Order, the trial court

discussed the "fine line distinguishing murder based on the third

prong of malice from . . . involuntary manslaughter."                 After

"[c]onsidering all the circumstances of the case at bar, [the court

was] satisfied that the degree of risk of physical harm manifested

by [Lyons's] actions was more consistent with wilful and wanton

conduct than with third-prong malice." Therefore, "[a]fter lengthy

and   soul-searching   deliberation,     [the   court]   determined   that

justice [would] be more nearly achieved by reducing the verdict

from murder in the second degree to involuntary manslaughter" and



      2
      Under Massachusetts law, the element of malice necessary for
a conviction of murder in the second degree can be satisfied by one
of three different prongs. See Commonwealth v. LaCava, 783 N.E.2d
812, 820 n.9 (Mass. 2003). Lyons was convicted based on the third
prong. Under "third prong malice," the malice element is satisfied
by "proof of circumstances in which a reasonably prudent person
would have known, according to common experience, that there was a
plain and strong likelihood that death would follow the
contemplated act."     LaCava, 783 N.E.2d at 820 n.9; see also
Commonwealth v. Vizcarrondo, 693 N.E.2d 677, 680 n.3 (Mass. 1998).

                                   -4-
granted Lyons's motion.    The MAC affirmed the order reducing the

verdict, concluding that the trial justice had acted within her

discretion.   See Commonwealth v. Lyons, 807 N.E.2d 862 (Mass. App.

Ct. 2004). Subsequently, the Commonwealth filed an application for

leave to obtain further appellate review, which the SJC granted.

Lyons, 828 N.E.2d at 4.

          In a 4-3 decision, a divided SJC found that the trial

justice abused her discretion in reducing Lyons's verdict from

second-degree murder to involuntary manslaughter and reinstated the

conviction.     Id.   Lyons   sought   rehearing   but   was   denied.

Thereafter, Lyons filed a petition in federal court for a writ of

habeas corpus under 28 U.S.C. § 2254.          He claimed that the

admission of the autopsy photographs violated his right to due

process as guaranteed by the Fourteenth Amendment.        The petition

was denied.   Lyons appealed and filed a motion for a certificate of

appealability ("COA"), which the district court granted on June 25,

2009.3




     3
      We expanded the COA in an order dated June 24, 2011 for the
purpose of allowing the parties to brief three additional issues.
Two of those issues centered around the Commonwealth's failure to
file the full state court trial transcript with the district court.
While we thank the parties for their thorough submissions,
ultimately we need not address this issue on appeal as it has no
bearing on our final determination.

                                 -5-
II. DISCUSSION

A.   Standard of Review

           Our review of the district court's denial of habeas

relief is de novo.   See Shuman v. Spencer, 636 F.3d 24, 30 (1st

Cir. 2011).

           Pursuant to AEDPA, "our standard of review of the SJC's

decision depends on whether that court 'adjudicated on the merits'

[Lyons's due process] claim."   Healy v. Spencer, 453 F.3d 21, 25

(1st Cir. 2006) (quoting 28 U.S.C. § 2254(d)); see also Fortini v.

Murphy, 257 F.3d 39, 47 (1st Cir. 2001) ("AEDPA's strict standard

of review only applies to a 'claim that was adjudicated on the

merits in state court proceedings.'").   If it did, we

           ha[ve] no power to afford relief unless [Lyons
           can] show either that the [SJC's] decision
           affirming the conviction 'was contrary to, or
           involved an unreasonable application of,'
           clearly established federal law as reflected
           in the holdings of th[e] [United States
           Supreme] Court's cases, or that it 'was based
           on an unreasonable determination of the facts'
           in light of the state court record.4

Cavazos v. Smith, 132 S. Ct. 2, 6 (2011) (per curiam) (quoting 28

U.S.C. § 2254 (d)(1) and (2)); see also Harrington v. Richter, 131

S. Ct. 770, 785 (2011).   On the other hand, "[i]f it did not, we

review de novo."   Healy, 453 F.3d at 25.   Both parties agree that

Lyons included the constitutional argument in his brief to the SJC.


     4
      For purposes of this appeal, we are concerned only with
whether the SJC's decision involved an unreasonable application of
clearly established federal law.

                                -6-
And even though the SJC did not elaborate on its reasoning for

rejecting Lyons's due process claim, the SJC nevertheless addressed

the claim when it concluded "that there [was] no merit in [Lyons's]

allegations of error."    Lyons, 828 N.E.2d at 4.   Consequently, our

review is deferential.5     See Harrington, 131 S. Ct. at 784-85

("When a federal claim has been presented to a state court and the

state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.").

Thus, the question we must answer is whether the SJC's decision

"involved an unreasonable application of[] clearly established

Federal law."   28 U.S.C. § 2254(d)(1).   Without a doubt,

          [t]his is a highly deferential standard for
          evaluating state-court rulings, which demands
          that state-court decisions be given the
          benefit of the doubt, and that the defendant
          seeking habeas show that the state court's
          ruling on the claim being presented in federal
          court was so lacking in justification that
          there was an error well understood and
          comprehended in existing law beyond any
          possibility for fairminded disagreement.

Butler v. O'Brien, No. 10-1235, 2011 WL 6118529, at *2 (1st Cir.

Dec. 9, 2011) (internal quotation marks and citations omitted).

          This standard "does not demand infallibility: a state

court's decision may be objectively reasonable even if the federal


     5
      In their opening briefs to this court, both parties,
operating under the mistaken belief that the SJC had not discussed
Lyons's due process claim, failed to analyze the constitutional
claim under the deferential standard required by AEDPA.

                                 -7-
habeas court, exercising its independent judgment, would have

reached a different conclusion."         Rashad v. Walsh, 300 F.3d 27, 35

(1st Cir. 2002).       Consequently, a determination that the SJC's

conclusion was "unreasonable" requires "something greater than

incorrect or erroneous."      Shuman, 636 F.3d at 30.          Moreover, "[i]f

it is a close question whether the state decision is in error, then

the state decision cannot be an unreasonable application."                Healy,

453 F.3d at 26.        Finally, even if we conclude that the SJC's

conclusion was "unreasonable, habeas relief remains unavailable

unless [Lyons] can also show that the error had a substantial and

injurious effect or influence in determining the jury's verdict."

Shuman, 636 F.3d at 30.

B.   Constitutional Claim

           Before getting into the merits of Lyons's claim, we must

first address a preliminary matter.

           The   Commonwealth       asserts   that    we   should   affirm    the

district   court's   denial    of    habeas   relief       "[b]ecause   the   SJC

analyzed [Lyons's] evidentiary claim pursuant to Massachusetts

state law" and "[e]rrors of state law do not provide a basis for

federal habeas corpus relief."         To be sure, "[i]t is a fundamental

principle of the law of federal habeas corpus in non-death-penalty

cases that no habeas claim is stated as to state court criminal

convictions   unless    the   alleged    errors      are   violations    of   the

Constitution, laws, or treaties of the United States."                  Kater v.


                                      -8-
Maloney, 459 F.3d 56, 61 (1st Cir. 2006) (citing Estelle v.

McGuire, 502 U.S. 62, 67, 68 (1991)).     Undeniably, "if nothing

other than questions of compliance with state law were at issue,"

id., then we would agree with the Commonwealth.6   However, that is

not the case. As previously stated, the Commonwealth concedes that

Lyons "properly raised the federal nature of his claim in his brief

to the SJC," and as discussed supra, the SJC did consider Lyons's

constitutional claim. See supra, Part II.A.        Moreover, "[t]he

habeas petition here is framed in terms of [a] violation[] of

federal law," Kater, 459 F.3d at 61, specifically, a violation of

Lyons's Fourteenth Amendment due process right to a fair trial.7

Accordingly, Lyons's constitutional claim is properly before us and

entitled to due consideration.

          According to Lyons, the SJC unreasonably applied clearly

established federal law when it found no error in the introduction



     6
      The issue before us is not, as Lyons suggests, whether the
trial court abused its discretion in admitting the autopsy photos
at trial. Similarly, the issue before us is not, as Lyons claims,
whether the SJC was correct in concluding that the admission of the
photographs was proper. Again, AEDPA limits our review solely to
the issue of whether the SJC's decision affirming the trial court's
admission of the autopsy photographs "involved an unreasonable
application of[] clearly established Federal law." 28 U.S.C. §
2254(d)(1).
     7
      In other words, this is not a case where the petitioner's
"vague and unfocused references to fairness were insufficient to
draw the state court's attention away from the state-law raiment in
which the petitioner cloaked his claim and instead alert it to a
possible federal constitutional claim."       Coningford v. Rhode
Island, 640 F.3d 478, 483 (1st Cir. 2011).

                                 -9-
of the autopsy photographs into evidence.8         Lyons argues that his

son's manner of death was not in dispute; rather, the sole issue at

trial was Lyons's intent, or mens rea, when he acted. By admitting

the gruesome and allegedly highly inflammatory autopsy photographs,

which Lyons argues are in no way probative of intent, the trial

court, he urges, so infected the proceeding with unfairness that it

deprived him "of due process and his constitutionally guaranteed

right to a fair trial."

          An   erroneous    evidentiary   ruling    that   results   in   a

fundamentally unfair trial may constitute a due process violation

and thus provide a basis for habeas relief.           See Coningford v.

Rhode Island, 640 F.3d 478, 484 (1st Cir. 2011).        However, to give

rise to habeas relief, "the state court's application of state law

must be 'so arbitrary or capricious as to constitute an independent

due process . . . violation.'"    Id. (quoting Lewis v. Jeffers, 497

U.S. 764, 780 (1990)).     "To be a constitutional violation, a state



     8
      In support of his claim that the introduction of the autopsy
photographs was wrong and denied him his constitutional right to a
fair trial, Lyons relies on Spears v. Mullin, 343 F.3d 1215 (10th
Cir. 2003), but his reliance is misplaced.         Spears is both
factually and legally inapposite. See id. at 1226-28 (photographs
showing victim's mutilated body at crime scene were not relevant at
sentencing to inquiry of whether murder was especially heinous,
atrocious, or cruel where inquiry required proof of conscious
physical suffering and victim had lost consciousness before wounds
were inflicted).    Moreover, even if Spears were factually and
legally similar, AEDPA requires that the relevant legal rule be
clearly established in a Supreme Court holding rather than in
dictum or in a holding of a lower federal court. See 28 U.S.C. §
2254(d)(1).

                                  -10-
evidentiary error must so infuse the trial with inflammatory

prejudice that it renders a fair trial impossible."     Petrillo, 428

F.3d at 44 n.2; see also Kater, 459 F.3d at 64 (in habeas context,

relevant inquiry on appeal regarding evidentiary claim of error is

"whether any error rendered the trial so fundamentally unfair that

it violated the Due Process Clause"). For habeas purposes, we then

review the state court's determination regarding the constitutional

claim under the AEDPA standards.

          For starters, Lyons has failed to bring to our attention

any clearly established Supreme Court precedent holding that the

admission of autopsy photographs violates due process rights.        As

such, "the broader fair-trial principle is the beacon by which we

must steer."    Coningford, 640 F.3d at 485.        Moreover, "[t]he

Supreme Court has defined the category of infractions that violate

fundamental fairness very narrowly."9        Kater, 459 F.3d at 61

(internal quotation marks and citation omitted).

          In   affirming   the   trial   court's   admission   of   the

photographs, the SJC stated,

          The judge admitted the photographs only after
          the Commonwealth had laid a foundation


     9
      Some examples include Doyle v. Ohio, 426 U.S. 610, 618 (1976)
(use of suspect's post-Miranda silence against him); Blackledge v.
Perry, 417 U.S. 21, 27 (1974) (vindictive prosecution); Brady v.
Maryland, 373 U.S. 83, 87 (1963) ("the suppression by the
prosecution of evidence favorable to an accused upon request . . .
where the evidence is material either to guilt or to punishment");
Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (failure to appoint
counsel in certain criminal cases).

                                 -11-
          indicating that the photographs were relevant
          to establishing the severity of the [baby]'s
          injuries.   [Lyons] argues that this was an
          abuse of discretion because the nature,
          extent, and cause of the fatal injuries were
          not issues before the jury. While we agree
          with [Lyons] that the photographs were
          disturbing, we do not agree that they lacked
          relevance. A critical issue in the case was
          the amount of force used to shake the [baby].
          As the nature of the injuries supported an
          inference concerning the amount of force used
          to inflict the injuries, the photographs were
          relevant to that issue.     Additionally, the
          final photograph admitted, showing no injury
          to the back of the [baby]'s head, was relevant
          to contradict [Lyons's] testimony that the
          [baby] hit his head in the bathtub.10
          Furthermore, the judge appropriately mitigated
          any potential prejudice by cautioning the jury
          not to be affected by the nature of the
          photographs and by instructing them that the
          photographs were to be used only to draw
          attention to a clinical medical status or the
          nature and extent of the [baby]'s injuries.

Lyons, 828 N.E.2d at 9. Though Lyons may disagree with the ruling,

the SJC did weigh any unfair prejudice to Lyons against the

probative value of admitting the photos.      Ultimately, the SJC

determined that while the photos were "disturbing," they were

nonetheless relevant and probative to the "critical" issue of the

amount of force used to shake     the baby, as well as Lyons's

credibility.




     10
      On the day of the baby's death, Lyons was home alone with his
eleven year old son and the baby. According to Lyons, while he was
giving the baby a bath, the baby slipped and bumped his head on the
bathtub. Following the incident, Lyons claimed the baby seemed to
be in distress -- which led Lyons to panic and shake the baby.

                               -12-
            Further,   the    SJC   deemed    the   trial   court's   limiting

instruction to the jury sufficient to mitigate any potential unfair

prejudice to Lyons.     In so ruling and in finding that there was no

merit to any of Lyons's claims, the SJC implicitly determined that

Lyons's trial was not so infused with inflammatory prejudice as to

render it constitutionally unfair.               This "was well within the

universe of plausible evidentiary rulings."            Coningford, 640 F.3d

at   485.    Given   this    court's    highly    deferential   standard   for

evaluating state-court rulings under AEDPA, we cannot say that the

SJC's conclusion that the admission of the autopsy photographs was

proper was so arbitrary or capricious as to be "an unreasonable

application of[] clearly established Federal law."               28 U.S.C. §

2254(d)(1).

III.   CONCLUSION

            For the reasons stated, the district court's dismissal of

the habeas petition is affirmed.




                                       -13-
