          United States Court of Appeals
                     For the First Circuit

No. 14-1926

                         HELDER BARBOSA,

                     Petitioner, Appellant,

                               v.

                LISA A. MITCHELL, SUPERINTENDENT,

                      Respondent, Appellee.


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

          [Hon. Denise J. Casper, U.S. District Judge]


                             Before

                   Lynch, Selya, and Kayatta,
                         Circuit Judges.


     Elizabeth Doherty for appellant.
     Christopher Hurld, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.


                        January 28, 2016
             KAYATTA, Circuit Judge.         Helder Barbosa was convicted of

first degree murder, armed assault with intent to murder, assault

and battery with a dangerous weapon, and the unlicensed possession

of a firearm.      Commonwealth v. Barbosa, 933 N.E.2d 93, 99 & n.1

(Mass.   2010)     ("Barbosa").        The     Supreme    Judicial   Court    of

Massachusetts ("SJC") affirmed his convictions, id. at 99, and the

United States District Court for the District of Massachusetts

subsequently denied Barbosa's petition for a writ of habeas corpus,

Barbosa v. Gelb, No. 12-10764, 2014 WL 3897652, at *1 (D. Mass.

Aug. 6, 2014) ("Gelb").          Claiming that evidence provided by an

expert witness who relied on and tendered work done by a non-

testifying    witness     violated    his    clearly   established    right   to

confrontation under the Sixth Amendment to the United States

Constitution, Barbosa appealed.           For the reasons explained below,

we affirm.

                                 I.   Background

             The law requires us to accept the state court's findings

of fact because Barbosa makes no showing that any of those facts

are clearly and convincingly in error.             McCambridge v. Hall, 303

F.3d   24,    26   (1st   Cir.    2002)     (en   banc)   (citing    28   U.S.C.

§ 2254(e)(1)). We therefore begin with a summary of those findings

as set forth by the SJC in its opinion.

             At approximately 7:00 PM on October 6, 2004, Geraldo

Carbuccia and Edward Serret encountered Barbosa as they were


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walking in the Roxbury section of Boston.            Barbosa, 933 N.E.2d at

99.   Carbuccia had seen Barbosa only twice before, whereas Serret

and Barbosa were better acquainted.          Id.    The three men walked to

Robey Street, where Barbosa left Carbuccia and Serret to wait for

him in an alleyway.     Id.       Returning five to ten minutes later,

Barbosa pulled out a gun and shot Carbuccia in the shoulder from

ten to fifteen feet away.          Id.     After falling to the ground,

Carbuccia heard three or four more gunshots and then heard Serret

say, "Dammit, you're going to kill me."            Id. at 99–100.

           Luis Sanches, an eyewitness, testified that he heard

three or four shots on Robey Street and then saw Barbosa and Serret

running from Robey Street onto Marshfield Street while punching

each other.   Id. at 100.     After another gunshot, Serret fell to

the ground while Barbosa continued to punch him before Barbosa ran

away and turned the corner onto Norfolk Avenue.             Id.

           Between   8:00   and    8:30    PM,     Police   Officers   William

Hubbard and Charles MacKinnon received a radio call to respond to

the scene at Marshfield Street.            Id.     Approximately one minute

after receiving the call, they saw Barbosa walking toward them on

Burrell Street, which is approximately one block from Marshfield.

Id.   The officers observed that Barbosa was walking at a "brisk

pace," and that he "appeared to be short of breath, and [that] his

face was glistening with sweat."           Id.     When Hubbard rolled down

the car window to ask Barbosa whether he had heard gunshots,


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Barbosa pointed to the intersection of Burrell and Bachelder

Streets, making excited gestures and stating, "Over there, I heard

shots, they are crazy, I had to run."            Id.    When Hubbard opened

his door to exit his vehicle, Barbosa immediately began to run

away.   Id.     Hubbard followed him on foot and ordered Barbosa to

stop, but Barbosa did not comply.             Id.      After a brief chase,

Hubbard tackled Barbosa to the ground.           Id.    When Hubbard ordered

Barbosa to show his hands, Barbosa refused, crawling toward the

sidewalk.     Id.   During the ensuing struggle, Hubbard "heard a loud

splash" and saw Barbosa's hand emerge from a catch basin.                  Id.

Barbosa then ceased struggling and showed Hubbard his hands, which

were empty.     Id.     Hubbard handcuffed Barbosa and placed him in a

police car.     Id.

            A   short    while   later,   the    Boston    Water   and   Sewer

Commission brought a "clam truck" at Hubbard's request to scoop

out the contents of the catch basin.       Id.      The first scoop produced

a nine millimeter Bryco semi-automatic pistol.            Id. at 100–01.    At

trial, a ballistics expert testified that this pistol matched the

shell casings and bullet fragments found at the scene of the

shooting.     Id. at 103.

            During an interview with Detective Dennis Harris and

Sergeant Detective Thomas O'Leary at the police station, Barbosa

claimed he fled from Officer Hubbard because he thought there was

an outstanding warrant for his arrest based on a motor vehicle


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infraction.   Id. at 101.   A record check revealed no such warrant.

Id. at 101 n.2.     Barbosa also denied any involvement in the

shooting and denied throwing anything into the catch basin.          Id.

at 101.   After Detective Harris informed Barbosa that a firearm

had been found in the basin, Barbosa's demeanor changed and he

"dropped his head to his knees."     Id.

          During interviews on October 11 and October 16, 2004,

Carbuccia initially stated that he did not "get a good look" at

the shooter. Id. On October 18, 2004, Carbuccia changed his tune.

He contacted Sergeant Detective Richard Daley and gave a tape-

recorded statement that Barbosa had shot him, and he also selected

Barbosa's photograph from an array of eight photographs.       Id.   Two

years later, in preparation for trial, Carbuccia then further

informed the district attorney that he and Serret had witnessed

Barbosa shoot another man on September 21, 2004, two weeks before

Barbosa shot Carbuccia and Serret.     Id.

          Shortly   after   the   shooting,   Cheryl   Delatore--a   DNA

analyst no longer employed by Boston police department at the time

of trial--performed DNA testing on four samples taken from:      (1) a

red stain on Barbosa's left boot; (2) a red stain on Barbosa's

left pant leg; (3) a bloodstain from Serret; and (4) an oral swab

from Barbosa.   Id. at 103–04.      At trial, Julie Lynch, a senior

criminalist in the DNA unit of the Boston police department,

explained the process of DNA testing and analysis, id. at 102–04,


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and testified that, in her opinion, the results of Delatore's tests

indicated that Serret was a "possible source of the DNA extracted

from" the bloodstains on Barbosa's boot and pant leg, "while

[Barbosa] was excluded as a possible source of the DNA from both,"

id. at 102.   Without any objection from Barbosa, a table prepared

by Delatore was introduced into evidence showing the results of

the DNA tests and Lynch orally conveyed some of the table's

information to the jury.   Id. at 104.

            Lynch admitted on cross-examination that she had not

done the tests herself.      Id.   Rather, she had supervised and

trained Delatore, reviewed the worksheets and reports Delatore had

generated during the testing, and signed Delatore's final report.

Id.    She agreed that because she did not stand "over [Delatore's]

shoulders" during the testing, she had "no idea" whether Delatore

made any mistakes.   Id. (alteration in original).   The only way to

be certain would be to retest all of the samples, which she had

not done.   Id.

            A Suffolk County jury convicted Barbosa of first-degree

murder with premeditation and extreme atrocity or cruelty, armed

assault with intent to murder, assault and battery with a dangerous

weapon, and the unlicensed possession of a firearm.     Id. at 99 &

n.1.    In his appeal to the SJC, Barbosa argued, inter alia, that

both Lynch's testimony about the results of DNA testing she did

not perform and the introduction into evidence of the table created


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by Delatore violated his Sixth Amendment right of confrontation.

Id. at 99, 104.

              The SJC affirmed Barbosa's convictions, holding that

even though Lynch's own opinion was based in part on DNA testing

she did not perform, Barbosa's right of confrontation was not

violated because "he had a fair opportunity to confront Lynch as

to the reasonable basis for [her] opinion[s]."                  Id. at 107.        The

SJC also held, however, and the State conceded, that Barbosa's

confrontation rights were violated by the admission of Delatore's

results     table    and   Lynch's     testimony       reciting    some       of   the

information in the table.        Id.   Nevertheless, because Barbosa "did

not object to the admission of this testimony or otherwise preserve

his   claim    of   error,"   the    SJC     reviewed    the    error    under     the

"miscarriage of justice" standard and concluded that in light of

Lynch's properly admitted testimony and the "other overwhelming

[non-DNA] evidence against the defendant . . . no substantial

likelihood of a miscarriage of justice resulted from the improper

admission     of    Delatore's     results    table,     or    Lynch's    testimony

regarding Delatore's results and opinion."                     Id. at 111.         The

Supreme Court denied Barbosa's petition for certiorari.                       Barbosa

v. Mitchell, 131 S. Ct. 2441 (2011).

              On April 27, 2012, Barbosa filed his petition for a writ

of habeas corpus with the United States District Court for the

District    of     Massachusetts    based     on   the   admission       of   Lynch's


                                           - 7 -
testimony and Delatore's results table.             Barbosa's petition relies

on   the    Supreme     Court's      decisions        in   Melendez-Diaz         v.

Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico,

131 S. Ct. 2705 (2011).       The district court denied the petition,

holding that:      admission of Lynch's own expert opinion did not

violate    clearly    established    law     even    though    she   relied      on

Delatore's work product in forming her opinion; and (2) the

submission of Delatore's results table and Lynch's recitation of

portions of the table, although a violation of Barbosa's right of

confrontation, did not have a "substantial and injurious effect"

on the jury's verdict because it was "cumulative" of Lynch's

properly-admitted      testimony      and     because      there     was    other

"overwhelming evidence of guilt."           Gelb, 2014 WL 3897652, at *3–

5.   The district court granted a certificate of appealability and

Barbosa now appeals to this court.

                             II.     Discussion

A.    Standard of Review

            This   court   reviews    a    district    court's     denial   of    a

petition for writ of habeas corpus de novo.                     Saint Fort v.

Ashcroft, 329 F.3d 191, 202 (1st Cir. 2003).                  A writ of habeas

corpus is available to a "person in custody pursuant to the

judgment of a State court only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United

States."   28 U.S.C. § 2254(a).       The availability of such relief is


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subject     to    several     additional     requirements,       including     the

requirement that the writ may not issue "with respect to any claim

that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim resulted in a decision that

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 is a difficult

standard to meet, Greene v. Fisher, 132 S. Ct. 38, 43 (2011), and

"only Supreme Court precedent in effect at the time of the state

court adjudication on the merits counts as 'clearly established

Federal law,'"       Nardi v. Pepe, 662 F.3d 107, 110 (1st Cir. 2011)

(quoting Greene, 132 S. Ct. at 43).               For purposes of this appeal,

the    relevant    date     for   determining       applicable   Supreme     Court

precedent is September 7, 2010, when the SJC affirmed Barbosa's

convictions.      Gelb, 2014 WL 3897652, at *3.

B.      Confrontation Clause

             The Sixth Amendment to the United States Constitution,

made    applicable    to    the   states    via    the   Fourteenth   Amendment,

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him."    U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403

(1965). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme

Court held that the Confrontation Clause guarantees a defendant's

right to confront those who "bear testimony" against him.                  Id. at


                                           - 9 -
51.     The SJC held, and neither party disputes, that the evidence

at issue in this case, including Delatore's results table, was

"testimonial."      Barbosa, 933 N.E.2d at 104, 107.

1.    Admission of Lynch's Expert Opinion Testimony

             We consider first Barbosa's argument that allowing Lynch

to offer her own opinion based on the results of Delatore's

testimony violated clearly established Sixth Amendment law.                 To

build     this    argument,   Barbosa    points     to     Melendez-Diaz    v.

Massachusetts, 557 U.S. 305 (2009), as the Supreme Court decision

that he says clearly established by 2010 that Lynch should not

have been allowed to offer an opinion that relied on the work of

another person who did not testify.

             Melendez-Diaz did not involve a challenge to a witness's

testimony.        Rather, the challenged evidence submitted by the

prosecution in that case consisted solely of three "certificates

of analysis" showing the results of a forensic analysis performed

on seized substances in a drug trafficking case.            Id. at 308.    The

analysts who performed the tests did not testify, and the court

admitted    the    certificates   into   evidence   over    the   defendant's

objection, taking them as "prima facie evidence of the composition,

quality, and the net weight of the narcotic . . . analyzed."               Id.

at 309 (alteration in original) (quoting Mass. Gen. Laws ch. 111,

§ 13 (2008) (repealed 2012)).




                                     - 10 -
          Barbosa nevertheless argues that he need not show that

the facts of Melendez-Diaz are on all fours with the facts here.

He need only show that Melendez-Diaz clearly established law that,

without extension, applied here "beyond doubt."      Yarborough v.

Alvarado, 541 U.S. 652, 666 (2004).      The problem for Barbosa,

though, is that it was hardly beyond doubt that Melendez-Diaz's

ruling concerning testimonial pieces of paper applied without

extension to live testimony by an expert witness who has some

connection to the scientific report prepared by another whom she

supervised, or who is asked to offer her own opinion about reports

that themselves cannot be put into evidence.     To the contrary,

four U.S. Supreme Court Justices later read Melendez-Diaz as not

establishing at all, much less beyond doubt, the proposition that

admitting an opinion such as that offered by Lynch violates the

right to confrontation. See Williams v. Illinois, 132 S. Ct. 2221,

2228 (2012) (plurality opinion). Indeed, by blessing the admission

of almost identical testimony by a DNA expert, the Court's actual

holding in Williams might well be read as telling us that Barbosa

is not, with respect to this issue, being held "in custody in

violation of the Constitution," 28 U.S.C. § 2254(a), much less

that the fact of a violation was clearly established in 2010.

          In light of the foregoing, we conclude that the admission

of Lynch's own expert opinion does not provide a basis for habeas

corpus relief.


                                - 11 -
2.   Admission of Delatore's Results Table and Lynch's Recitation
     of Delatore's Findings

            We turn, last, to Barbosa's challenge to the admission

of Delatore's results table and Lynch's recitation of Delatore's

findings.    Because Barbosa did not object in the trial court "to

the admission of this testimony or otherwise preserve his claim of

error," the SJC reviewed the claimed error under Massachusetts'

"miscarriage of justice standard."     Barbosa, 933 N.E.2d at 111.

Usually, such a finding of procedural default would constitute an

independent and adequate state law ground for a state court's

decision, thereby foreclosing habeas relief unless the petitioner

can "demonstrate cause for the default and prejudice stemming

therefrom, or, alternatively, unless the petitioner can show that

a refusal to consider the merits of the constitutional claim will

work a miscarriage of justice."   Burks v. Dubois, 55 F.3d 712, 716

(1st Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 750

(1991)).

            The State, though, advances no argument that Barbosa's

failure to make a contemporaneous objection to the admission of

the results table "constituted an independent state law ground for

the SJC's refusal to grant relief."        Tart v. Commonwealth of

Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991).      Rather, the

State actually suggests that the SJC ruled on the merits of

Barbosa's claim.   We will therefore accept the State's invitation



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to ignore Barbosa's own default, and consider the merits of his

belated challenge to the admission of Delatore's results table and

Lynch's recitation of Delatore's findings.1

          On the merits, the State also does not dispute that

admitting Delatore's results table and allowing Lynch to recite

for the truth of the matter information from the table violated

clearly established law under the Confrontation Clause.   The State

argues, instead, that the admission of the results table and of

Lynch's recitation of information from the table for its truth was

harmless because the evidence was "cumulative" and "because the

properly admitted evidence against [Barbosa] was overwhelming."

          When there is a preserved constitutional error in a

conviction challenged on habeas review, we are required to apply

the harmless error test adopted in Brecht v. Abrahamson, 507 U.S.

619 (1993).   Brecht held that a petitioner is entitled to habeas

relief if the constitutional error had a "substantial and injurious




     1 The Supreme Court has held that a court of appeals, when
reviewing a district court's habeas decision, is not required to
raise, sua sponte, the issue of a petitioner's procedural default
when "[t]he parties themselves ha[ve] neither raised nor argued
the matter." Trest v. Cain, 522 U.S. 87, 89 (1997). This court
has specifically held that even when the government has not argued
procedural default, we have authority, but not the obligation, to
raise the issue sua sponte. Ortiz v. Dubois, 19 F.3d 708, 714–15
(1st Cir. 1994); see also Trest, 522 U.S. at 90 (declining to
decide "whether, or just when, a habeas court may consider a
procedural default that the State at some point has waived, or
failed to raise"). We decline to exercise this authority in this
case.


                                - 13 -
effect or influence in determining the jury's verdict."                     Id. at

637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946));

see also Wright v. Marshall, 656 F.3d 102, 108 (1st Cir. 2011).

We find no such effect or influence on the verdict in this case.

              The results table and the testimony about Delatore's

conclusions indicated on that table were probative, and thus

potentially harmful, because they pointed to the victim rather

than Barbosa as the source of the blood on Barbosa's pant leg and

boot.      That same incriminating linkage, though, was provided

directly by Lynch's own opinion in relying on Delatore's work, and

we have now found the admission of that opinion not to have been

contrary      to     clearly    established       federal   law.      See    supra

Part II.B.1.

              The evidence before the jury also included an abundance

of    other        evidence     indicating    Barbosa's      guilt,    including

Carbuccia's identification of Barbosa as the shooter; Sanches's

testimony corroborating Carbuccia's identification; Carbuccia's

testimony that he and Serret had witnessed Barbosa murder another

man   approximately       two    weeks   before    the   shooting;    and   police

testimony regarding Barbosa's behavior when encountered shortly

after the shooting, including his flight from the police and--

likely most damning--the fact that he dropped an object in the

catch basin from which the gun used in the shooting was later

retrieved.         Barbosa, 933 N.E.2d at 99–103.           Given the force of


                                          - 14 -
this evidence as a whole, we cannot conclude that the largely

cumulative    evidence   pertaining    to   the   results   table   had   a

substantial and injurious effect on the verdict.        See Brecht, 507

U.S. at 639.

                           III.   Conclusion

             For the reasons set forth above, the order of the

district court is affirmed.




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