
USCA1 Opinion

	




          November 22, 1994 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                     _________________________          No. 93-1795                                   NAZZARO SCARPA,                                Petitioner, Appellee,                                          v.                                LARRY E. DUBOIS, ETC.,                               Respondent, Appellant.                                                                                       __________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the Court  issued on  October 18,  1994, is          corrected as follows:               On page 26, line 17, "449" should be "499"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1795                                   NAZZARO SCARPA,                                Petitioner, Appellee,                                          v.                                LARRY E. DUBOIS, ETC.,                                Respondent, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________               William J.  Duensing, Assistant Attorney General,  with whom               ____________________          Scott Harshbarger, Attorney General, was on brief, for appellant.          _________________               Nazzaro Scarpa, pro se,  orally and on original briefs,  and               ______________  ___ __          Seth  M.  Kalberg, by  appointment of  the  court, orally  and on          _________________          supplemental brief, for appellee.                              _________________________                                   October 18, 1994                              _________________________                    SELYA,  Circuit Judge.   This  appeal requires  that we                    SELYA,  Circuit Judge.                            _____________          address an  important question,  not authoritatively  resolved by          controlling  precedent:   When (if  ever) does  defense counsel's          substandard performance in a criminal case   never a pretty sight             become  so unattractive  that a  habeas  court must  forgo the          customary inquiry into the harmful effects of attorney error and,          instead,  conclusively presume that counsel's blunders prejudiced          the defendant?                    The   question  arises   in   the  following   context.          Petitioner-appellee Nazzaro Scarpa  brought a pro se  application                                                        ___ __          for habeas corpus in the federal district  court.1  See 28 U.S.C.                                                              ___              2241-2254  (1988).    He  denominated  a  state  correctional          official, in his representative capacity, as the respondent.  The          district  court  discerned  a  Sixth  Amendment  violation:    it          concluded that Scarpa's trial counsel in the state court rendered          grossly ineffective  legal assistance  to him, see  Strickland v.                                                         ___  __________          Washington,  466  U.S. 668,  687  (1984)  (elucidating applicable          __________          test);  see also  Hill  v.  Lockhart,  474  U.S.  52,  57  (1985)                  ___ ____  ____      ________          (applying Strickland  in the habeas context),  and that counsel's                    __________          woeful  performance  gave  rise  to   a  per  se  presumption  of                                                   ___  __          prejudice.    The district  court  relied  principally on  dictum          contained  in United States v.  Cronic, 466 U.S.  648 (1984), for                        _____________     ______          the  proposition that  it  did  not  need  to  inquire  into  the                                        ____________________               1On appeal, petitioner has also appeared pro se, preparing a                                                        ___ __          brief and  arguing orally on his  own behalf.  To  assist him, we          appointed counsel  who filed  a supplemental brief  and presented          additional oral argument.                                          3          existence of actual prejudice.                    Respondent  appeals.    Although  the  district court's          reading of Cronic finds  some support in the case  law, including                     ______          isolated  cases  decided by  the  Ninth and  Tenth  Circuits, see                                                                        ___          United States v. Swanson, 943 F.2d 1070, 1073-74 (9th Cir. 1991);          _____________    _______          Osborn  v. Shillinger,  861 F.2d  612, 626  (10th Cir.  1988), we          ______     __________          believe that Cronic is not nearly so wide-ranging as the district                       ______          court assumed.  Hence, we reverse.          I.  BACKGROUND          I.  BACKGROUND                    We  glean the  essential facts  from the  transcript of          petitioner's  trial in Suffolk Superior Court.  On June 10, 1987,          Joseph  Desmond,  an  agent   of  the  federal  Drug  Enforcement          Administration (DEA), posing as a would-be cocaine purchaser, met          with  his initial  target,  Robert Ricupero,  at  a pub  in  East          Boston.  At Ricupero's request, petitioner joined them.  The trio          discussed a possible cocaine purchase and then crossed the street          to  a parked limousine that bore  the insignia of the "Snow White          Limousine Service."  Ricupero and Scarpa entered the vehicle.  As          Desmond  later  testified,  Scarpa  passed roughly  28  grams  of          cocaine to Ricupero,  who handed  it to Desmond  in exchange  for          $1500  in cash.   Ricupero  kept $100  and gave the  remainder to          Scarpa.  These events occurred under police surveillance.                    The  next  encounter  between   Desmond  and  his  prey          occurred   on  July  18,  1987.    In  preparation  for  it,  the          authorities again assigned a cadre of law enforcement officers to          surveillance duties.  Desmond  and Ricupero met at the  same pub.                                          4          At Ricupero's  invitation, Scarpa  again  joined them.   On  this          occasion, the actual exchange  occurred in the deserted stairwell          of a nearby apartment building, and a fourth man, James Marcella,          entered  the equation.  Desmond  testified that Marcella handed a          package  containing roughly 55  grams of  cocaine to  Scarpa, who          passed the package to  Ricupero.  When Ricupero placed  the drugs          within  Desmond's  reach, Desmond  handed  him  $3000.   Ricupero          slipped the money to Scarpa, who turned it over to Marcella.                    In due season, the Commonwealth indicted petitioner for          drug trafficking and unlawful distribution.  A jury convicted him          on all charges after a four-day trial.  The trial judge sentenced          him to serve a  lengthy prison term.   Petitioner's motion for  a          new trial  failed; the  Massachusetts Appeals Court  affirmed the          conviction, see Commonwealth v. Scarpa,  30 Mass. App. Ct.  1106,                      ___ ____________    ______          567 N.E.2d  1268 (1991) (table);  and the Supreme  Judicial Court          (SJC)  summarily denied  petitioner's  application  for leave  to          obtain  further  appellate review  (alofar), see  Commonwealth v.                                                       ___  ____________          Scarpa, 409 Mass. 1105, 571 N.E.2d 28 (1991).          ______                    Undaunted, Scarpa  filed an  application for a  writ of          habeas corpus in federal district court.  After hearing arguments          presented  by Scarpa and by the  Commonwealth, the district court          granted  the   petition.     It  found  that   defense  counsel's          performance  not  only  fell   below  an  objectively  reasonable          standard  of  proficiency  but also  caused  a  breakdown  in the          adversarial  system.      This,  the   district  judge   thought,          constituted  prejudice  per  se.   Accordingly,  he  vacated  the                                  ___  __                                          5          conviction, ordered  petitioner released from state  custody, and          directed  the Commonwealth  to retry  him if  it sought  to exact          further punishment.   The court refused respondent's  application          for a stay, and petitioner is at liberty.          II.  EXHAUSTION OF REMEDIES          II.  EXHAUSTION OF REMEDIES                    The Commonwealth is the real party in interest in these          proceedings, and  we treat  the  case as  if  it were  the  named          respondent.   At the  outset, the Commonwealth  seeks to sidestep          habeas relief by convincing us  that petitioner failed to present          his  constitutional claim to the state courts before bolting to a          federal forum.  We are not persuaded.                              A.  Governing Principles.                              A.  Governing Principles.                                  ____________________                    Under our  federal system,  both the federal  and state          courts  are  entrusted  with  the  protection  of  constitutional          rights.  See Ex parte Royall, 117 U.S. 241, 251 (1886).  In order                   ___ _______________          to  ease  potential  friction  between these  two  sovereigns,  a          federal  court will ordinarily  defer action on  a cause properly          within  its jurisdiction  until the  courts of  another sovereign          with concurrent powers, already cognizant of the litigation, have          had an opportunity to pass  upon the matter.  See Rose  v. Lundy,                                                        ___ ____     _____          455  U.S. 509, 518 (1982).  This practice, reflecting concerns of          comity,  has been codified in 28 U.S.C.   2254,2 and memorialized                                        ____________________               2The statute provides in pertinent part:                                 *        *        *                         (b) An application for  a writ of habeas                    corpus  in  behalf  of  a  person  in custody                    pursuant  to the  judgment of  a State  court                                          6          in our case law,  see, e.g., Mele  v. Fitchburg Dist. Court,  850                            ___  ____  ____     _____________________          F.2d 817, 819 (1st Cir. 1988).                    In order to present a federal claim to the state courts          in  a  manner  sufficient   to  satisfy  exhaustion  concerns,  a          petitioner  must inform the state  court of both  the factual and          legal underpinnings of the claim.  See Picard v. Conner, 404 U.S.                                             ___ ______    ______          270, 276-78  (1971).   The test  is substantive:   was the  claim          presented in  such a way as to make it probable that a reasonable          jurist  would have been alerted  to the existence  of the federal          question?  See  Nadworny v. Fair, 872  F.2d 1093, 1101  (1st Cir.                     ___  ________    ____          1989).   While the answer  to the  question must not  be made  to          depend on  "ritualistic formality," id.  at 1097, neither  is the                                              ___          answer wholly in the eye of the beholder.                    In  Gagne v. Fair,  835 F.2d 6,  7 (1st  Cir. 1987), we                        _____    ____          catalogued four ways in which the requirement of fair presentment          may  be  fulfilled:   "1)  citing  a  specific  provision of  the          Constitution;   2)   presenting  the   substance  of   a  federal                                        ____________________                    shall not  be granted unless  it appears that                    the  applicant  has  exhausted  the  remedies                    available in the courts of the State, or that                    there is either an absence of available State                    corrective  process  or   the  existence   of                    circumstances    rendering    such    process                    ineffective  to protect  the  rights  of  the                    prisoner.                         (c) An applicant shall  not be deemed to                    have  exhausted the remedies available in the                    courts of the  State, within  the meaning  of                    this section,  if he has the  right under the                    law of  the State to raise,  by any available                    procedure, the question presented.          28 U.S.C.   2254(b), (c) (1988).                                          7          constitutional claim in  such manner that  it likely alerted  the          state court to the claim's federal nature; 3) reliance on federal          constitutional  precedents;  and 4)  claiming a  particular right          specifically  guaranteed  by  the  Constitution."   We  did  not,          however, attribute exclusivity to  this compendium.  In Nadworny,                                                                  ________          872 F.2d  at 1099-1100, we mentioned a fifth possibility, namely,          the assertion of a state law claim that is functionally identical          to a federal  claim.  These possibilities recognize  that certain          constitutional violations have the capacity  to rest on a variety          of factual bases.  While the facts and legal theories need not be          propounded  in  precisely  the  same  terms,   fair  presentation          requires that  the constitutional analysis  necessary to  resolve          the ultimate question  posed in  the habeas petition  and in  the          state court proceedings, respectively, be substantially the same.          See Lanigan v. Maloney, 853 F.2d 40, 44-45 (1st Cir. 1988), cert.          ___ _______    _______                                      _____          denied, 488 U.S. 1007 (1989).          ______                                    B.  Analysis.                                    B.  Analysis.                                        ________                    Here,  petitioner's  odyssey through  the Massachusetts          court system involved a trial, a motion for a new  trial, a full-          dress appeal in the state  appeals court, and an alofar.   At all          three post-trial stages, petitioner raised claims anent counsel's          proficiency   (or,  more   precisely  put,   counsel's  lack   of          proficiency) and couched his claim in terms that remained largely          unchanged.  In his  pleadings and memoranda at all  three stages,          petitioner  alleged three  principal  shortcomings  on  counsel's          part:   a  failure to  attack the  prosecution's star  witness; a                                          8          mindless solicitation  to the jury to believe  that star witness;          and the ill-advised pursuit of a defense, not legally cognizable,          that  virtually conceded  the elements  of the  charged offenses.          Throughout the appellate process, petitioner described  his claim          as "ineffective assistance of counsel."                    Moreover, at  the first two stages he cited three state          cases,  Commonwealth  v.  Pope,  467  N.E.2d  117  (Mass.  1984);                  ____________      ____          Commonwealth  v.  Satterfield,  364  N.E.2d  1260  (Mass.  1977);          ____________      ___________          Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974), that dealt          ____________    ________          squarely  with this  issue.3    In  his  motion  for  new  trial,          petitioner cited  the Sixth  Amendment by name,  accompanying the          motion  with the affidavit of his  trial counsel, Arthur Tacelli,          attesting  to Tacelli's self-professed ineffectiveness.  Scarpa's          federal habeas petition again asserted "ineffective assistance of          counsel,"  and cited the same  three factual bases  in support of          the assertion.                    On these facts,  we agree with the district  judge that          the  arguments presented by  petitioner sufficiently  alerted the          state  courts to the substance  of the constitutional  claim.  In          the first  place, an argument phrased  as "ineffective assistance          of counsel" certainly "claim[s]  a particular right  specifically                                        ____________________               3The Commonwealth  makes much of  the fact that  these cases          were not  cited in the alofar, and insists that Mele, 850 F.2d at                                                          ____          823, requires a federal court to restrict the exhaustion  inquiry          to that document.  This crabbed reading of Mele wrenches the case                                                     ____          out  of   its  context.     There,   the  defendant   raised  his          constitutional  issue  before the  intermediate  appellate court,          abandoned it  in his alofar, and then  attempted to raise it anew          in his  habeas petition.  See id. at 818-19.  In contrast, Scarpa                                    ___ ___          has consistently asserted his ineffective assistance claim.                                          9          guaranteed  by the Constitution."  Gagne, 835  F.2d at 7.  In the                                             _____          second place,  by identifying the  Sixth Amendment in  his motion          for  a new trial, petitioner "cite[s] a specific provision of the          Constitution," id., and,  at the same  time, provided a  backdrop                         ___          against which his later filings had to be viewed.                    If  any doubt  remains, the  sockdolager is that,  as a          general rule,  presenting a state-law claim  that is functionally          identical  to a  federal-law  claim suffices  to effectuate  fair          presentment of the latter claim.  See Nadworny, 872 F.2d at 1099-                                            ___ ________          1100.   So  it is  here:   petitioner brought himself  within the          encincture of this rule  by his repeated citation to the  trio of          Massachusetts cases that we have mentioned   cases  that evaluate          the   effectiveness  of   an  attorney's  performance   in  terms          reminiscent  of  the  federal  constitutional standard.    As  in          Strickland, 466  U.S. 668,  the Massachusetts  cases  call for  a          __________          deferential  evaluation of  counsel's  performance,  and, if  the          performance is found  to be substandard, an inquiry  into whether          counsel's  incompetence  injured   the  defendant's   substantial          rights.  See Pope, 467 N.E.2d at 122-123; Satterfield, 364 N.E.2d                   ___ ____                         ___________          at 1264; Saferian, 315 N.E.2d at 882-83.4                   ________                                        ____________________               4The  SJC  has  made  clear  that  it  ordinarily  considers          questions involving "assistance of counsel" as coming "within the                                                                 __________          meaning of the  Sixth Amendment."   Saferian, 315  N.E.2d at  882          _______________________________     ________          (emphasis supplied).  A defendant must show that                    there   has    been   serious   incompetency,                    inefficiency,  or  inattention  of counsel                       behavior of counsel falling  measurably below                    that which might be expected from an ordinary                    fallible  lawyer    and,  if that  is  found,                    then,  typically,  whether   it  has   likely                                          10                    Despite  minor  differences  in  phraseology,  the  two          standards   state and federal   strike us as equivalent.  Indeed,          the Commonwealth  does not contend  that a  claim of  ineffective          assistance of  counsel  arising under  Massachusetts law  differs          from such a claim arising out of the Sixth Amendment.  We readily          appreciate why this  contention is  not voiced.   The essence  of          each inquiry looks to the likelihood that effective assistance of          counsel would have produced  a different trial outcome.   The SJC          itself, while leaving open the theoretical possibility that there          might be some difference between the state and federal standards,          has  concluded that  if  their state's  test  is satisfied,  "the          Federal test  is  necessarily  met  as well."    Commonwealth  v.                                                           ____________          Fuller,  475 N.E.2d 381, 385 n.3 (Mass.  1985).  Finally, we deem          ______          it  highly relevant  that  the SJC  has  continued to  apply  the          Saferian analysis to ineffective  assistance of counsel claims in          ________          the post-Strickland era.  See, e.g., Commonwealth v. Charles, 489                   __________       ___  ____  ____________    _______                                        ____________________                    deprived  the  defendant   of  an   otherwise                    available, substantial ground of defence.          Id.  at 883.    This is  functionally  identical to  the  federal          ___          standard, which calls for a defendant to show                    that  counsel's  performance  was  deficient.                    This  requires  showing  that   counsel  made                    errors   so  serious  that  counsel  was  not                    functioning as the  "counsel" guaranteed  the                    defendant  by the  Sixth Amendment.   Second,                    the  defendant must  show that  the deficient                    performance  prejudiced  the  defense.   This                    requires showing that  counsel's errors  were                    so serious  as to deprive the  defendant of a                    fair trial, a trial whose result is reliable.          Strickland, 466 U.S. at 687.          __________                                          11          N.E.2d 679, 688 (Mass. 1986); Commonwealth v. Licata, 591  N.E.2d                                        ____________    ______          672, 676 (Mass. 1992).                    To  be  sure, petitioner  failed  to  cite directly  to          federal  precedent in  his  journey through  the state  appellate          process.    In our  view, however,  this  omission is  not fatal.          Although such citation is  strongly recommended if only to  avoid          controversies of  this nature,  we have specifically  declined to          adopt a  bright-line rule.  See Nadworny, 872 F.2d at 1101 & n.4.                                      ___ ________          The guidelines we  have promulgated in respect  to exhaustion are          intended to  be instructive,  rather  than to  comprise the  sole          corridors  through   which   the  "actual   embodiment  of   fair          presentation" may pass.  Id. at 1097.                                   ___                    To  say more would be  supererogatory.  For the reasons          stated above, we conclude that petitioner's Sixth Amendment claim          was  put to  the state  courts with the  requisite clarity.   See                                                                        ___          Twitty v.  Smith, 614  F.2d 325,  332 (2d  Cir. 1979)  (finding a          ______     _____          similar  claim exhausted, under  analogous circumstances, because          "the mention of `effective assistance of counsel' instantly calls          to mind the Sixth Amendment's guaranty of the accused's right `to          have  the Assistance  of  Counsel for  his defence'")  (citations          omitted);  see also Daye v.  Attorney General, 696  F.2d 186, 193                     ___ ____ ____     ________________          (2d  Cir. 1982) (en banc)  (reaffirming Twitty holding); Brady v.                                                  ______           _____          Ponte, 705 F. Supp. 52, 54 (D. Mass. 1988) (stating that explicit          _____          reference  to  "ineffective assistance  of  counsel"  suffices to          exhaust a Sixth Amendment claim) (dictum).          III.  THE MERITS          III.  THE MERITS                                          12                    We  segment  our  consideration of  the  merits,  first          outlining certain legal principles of general applicability, then          essaying  an  overview  of  petitioner's  trial,  and  thereafter          synthesizing  the  fruits  of  these endeavors  by  applying  the          relevant principles to the relevant circumstances.                              A.  Governing Principles.                              A.  Governing Principles.                                  ____________________                    The  Sixth Amendment guarantees criminal defendants the          right  to effective assistance  of counsel.   See Strickland, 466                                                        ___ __________          U.S.  at  687.    The   touchstone  for  determining  whether  an          attorney's  performance  falls below  the constitutional  norm is          whether  counsel has brought "to bear such skill and knowledge as          will render  the trial  a reliable adversarial  testing process."          Id. at 688.  The inquiry has  two foci.  First, a reviewing court          ___          must  assess  the  proficiency  of  counsel's  performance  under          prevailing professional norms.  See United States v. Natanel, 938                                          ___ _____________    _______          F.2d  302, 310  (1st Cir.  1991), cert.  denied, 112  S. Ct.  986                                            _____  ______          (1992).   This  evaluation  demands a  fairly tolerant  approach;          after all,  the Constitution pledges  to an accused  an effective          defense,  not  necessarily  a  perfect defense  or  a  successful          defense.   See, e.g., Lema v. United States, 987 F.2d 48, 51 (1st                     ___  ____  ____    _____________          Cir. 1993); Natanel,  938 F.2d at 309.  And, moreover, since even                      _______          the  most celebrated lawyers can  differ over trial  tactics in a          particular  case,  a  reviewing  court  must  "indulge  a  strong          presumption that counsel's conduct falls within the wide range of          reasonable professional  assistance."   Strickland,  466 U.S.  at                                                  __________          689.                                          13                    The  second  line  of  inquiry is  needed  because,  in          itself,  dreary  lawyering  does  not  offend  the  Constitution.          Rather, a  finding that counsel  failed to  meet the  performance          standard merely  serves to  advance the  focus of the  Strickland                                                                 __________          inquiry to the question of whether the accused suffered prejudice          in consequence  of counsel's blunders.   See  id. at  692.   This                                                   ___  ___          entails  a  showing of  a "reasonable  probability that,  but for          counsel's  unprofessional errors,  the result  of the  proceeding          would have been different."  Id. at 694.  A defendant who alleges                                       ___          ineffective  assistance  of  counsel  must carry  the  devoir  of          persuasion  on both  tiers of  the Strickland  test.   See, e.g.,                                             __________          ___  ____          Lema, 987 F.2d at 51.  The same holds true of a habeas petitioner          ____          who  claims that counsel mishandled his case in the state courts.          See Perron v. Perrin, 742 F.2d 669, 673 (1st Cir. 1984).          ___ ______    ______                    An inquiry into the  effectiveness of counsel is almost          always a  mixed question of  law and  fact.  See  Strickland, 466                                                       ___  __________          U.S. at  698.  In federal courts, mixed questions of law and fact          arising in section 2254  cases are ordinarily subject to  de novo                                                                    __ ____          review.   See Chakouian  v. Moran,  975 F.2d  931, 934  (1st Cir.                    ___ _________     _____          1992).   This includes claims premised  on ineffective assistance          of counsel.   See, e.g., McAleese v. Mazulkiewcz, 1 F.3d 159, 165                        ___  ____  ________    ___________          (3d Cir. 1993); Fields  v. Attorney General, 956 F.2d  1290, 1297                          ______     ________________          n.18   (4th  Cir.),  cert.   denied,  113  S.   Ct.  243  (1992).                               _____   ______          Comfortable with  this precedent,  and mindful that  the district          court's "prejudice per  se" ruling derives  from a conception  of                             ___  __          law  rather  than from  a finding  of fact,  we  apply a  de novo                                                                    __ ____                                          14          standard of review here.5                              B.  The State Court Trial.                              B.  The State Court Trial.                                  _____________________                    In  the  superior court,  the prosecution  conveyed its          case  principally  through  two  witnesses.     Desmond  supplied          detailed,  firsthand  testimony anent  the  cocaine  sales and  a          Boston  police detective,  Joseph Mugnano, testified  that Scarpa          admitted owning the Snow White Limousine Service.                    Scarpa's  defense counsel  did not  attempt to  impeach          Desmond, but, rather, rehashed the direct examination, extracting          from Desmond the following facts:  that Ricupero, not Scarpa, was          the  primary target  of  the DEA's  investigation; that  Ricupero          initially indicated to Desmond that his repository for  drugs was          a pickup truck, not  a limousine; that, with respect to the first          transaction, (1) Desmond did not know who put  the cocaine in the          limousine, and  (2) someone other than Scarpa actually handed the                                        ____________________               5Some courts  have suggested that a  standard of independent          review   which we  have described in  a different context as  "an          intermediate level of  scrutiny, more rigorous than  the abuse of          discretion  or  clear-error  standards,  but  stopping  short  of          plenary  or de novo review,"  United States v.  Tortora, 922 F.2d                      __ ____           _____________     _______          880, 883 (1st  Cir. 1990)   applies in habeas  cases.  See, e.g.,                                                                 ___  ____          Battle v.  Dell, 19 F.3d 1547, 1552  (8th Cir. 1994); Hamilton v.          ______     ____                                       ________          Ford,  969 F.2d 1006, 1010 (11th Cir. 1992), cert. denied, 113 S.          ____                                         _____ ______          Ct.  1625 (1993);  see  also S.  Childress  & M.  Davis,  Federal                             ___  ____                              _______          Standards of Review    13.05, at 13-37 (1992).   We are satisfied          ___________________          that de novo  review is appropriate  in the case  at bar, and  we               __ ____          need not  decide today whether  a standard of  independent review          should ever be  employed in habeas cases.   Withal, it strikes us          that where, as here, the district judge does not himself take any          evidence, the  gap between independent review and de novo review,                                                            __ ____          if one  exists at all, is  necessarily very small.   Cf. Tortora,                                                               ___ _______          922 F.2d at  883 (explaining that  lesser deference is  warranted          when  district court  essays no  "new or  different factfinding,"          but,  instead, acts on the  basis of a  magistrate's findings and          report).                                          15          drugs to  Desmond; that, with respect to  the second transaction,          (1)  Scarpa was a middle link in the chain of drugs and cash, and          (2) Desmond  did  not  know  whether Scarpa  received  any  money          referable  to that  transaction.   Attorney  Tacelli declined  to          question Mugnano  and produced no witnesses  in Scarpa's defense.          His closing  argument consisted  of a  terse  explanation of  the          concept of reasonable  doubt and  a solicitation to  the jury  to          accept the government's testimony:                    So, I'm  asking you,  as finders of  fact, to                    believe   Detective   Mugnano,  because   his                    testimony,  I suggest,  is  innocuous.    The                    second witness  that the Government   and the                    prime witness that the Government produced in                    support of their argument that Mr. Scarpa was                    guilty    of    cocaine    trafficking    and                    distribution, was  Agent Desmond  . . .   And                    you  listen to  DEA Agent    Drug Enforcement                    Agent Desmond.   And I ask you:   What motive                    would that  man have to come  into a superior                    court   courtroom,  with  a  varied  jury,  a                    superior  court judge,  what motive  would he                    have for lying?  What motive would he have to                    tell an  untruth?  What motive  would he have                    to  color the fact situation as he remembered                    it?   And I suggest  to you   and  I hope you                          _______________________________________                    find resoundingly   that he has no motive but                    _____________________________________________                    that of  following the  truth. .  . .   [I]'m                    _____________________________                    asking you to find  that man a credible human                    being; a  man who came in, took  the oath and                    told the truth [emphasis supplied].          Speaking of Scarpa, Attorney Tacelli continued:                    Was he a  user of  cocaine?  Was  he a  dupe?                    What happened  to that  money?  What  was its                    final  destination?    Is  Scarpa  a  user of                    drugs?  Is Scarpa  someone that Ricupero, the                    target of the investigation   is Scarpa   was                    he used  by Ricupero to shield himself? . . .                    And  I'm suggesting  to you    again,  at the                    expense of being  repetitious, Scarpa is  not                    found   and it is undetermined   that  is the                    word that  Agent Desmond  used on July  8th                      it's undetermined  if Scarpa had any  of that                                          16                    money.  . . .  And clearly, the source of the                    cocaine on the 8th  was not Scarpa.  At  best                                                         ________                    he  was a  conduit; someone  through whom  it                    _____________________________________________                    passed,  and  through whom  the  money passed                    _____________________________________________                    [emphasis supplied].                    During  summation, the  prosecutor agreed  that Desmond          had no reason to lie.  He told the jury that the Commonwealth had          no obligation  to prove either  the source of the  cocaine or the          ultimate  destination  of the  money.   And  he  labelled defense          counsel's closing argument "a smokescreen."                    In due  course, the  judge instructed  the jury  on the          elements  of the  trafficking offense.   He  told the  jurors, in          substance, that to convict, they must find that the defendant (1)          knowingly  (2)   possessed  cocaine;  (3)  with   the  intent  to          distribute it; and (4)  that the quantity of  cocaine must be  in          excess  of  28 grams.   See  Mass. Gen.  Laws  ch. 94C,    32E(b)                                  ___          (1992).   The judge instructed the jurors to much the same effect          in   regard  to   the   distribution   charge,  but   substituted          distribution  for possession  and eliminated  any reference  to a          minimum quantity of  cocaine.  See id.   32A(a).   The judge also                                         ___ ___          informed the jury that the identity of "the kingpin" did not bear          upon  the charges  at hand.   The jury  convicted Scarpa  on both          counts.                           C.  The Attorney's Performance.                           C.  The Attorney's Performance.                               __________________________                    The district court deemed defense counsel's argument as          tantamount to  arguing that petitioner  was a "mere  conduit" for          the  contraband.    Believing  that  this   approach  effectively          conceded the  only disputed  elements of the  charged crimes  and                                          17          relieved  the prosecution of its burden of proof, the court found          Attorney Tacelli's use of it  to be objectively unreasonable, and          therefore, substandard.                    We uphold this  finding.  At the least, defense counsel          in a criminal case should understand the elements of the offenses          with  which  his  client  is  charged  and  should  display  some          appreciation of the  recognized defenses thereto.   See Young  v.                                                              ___ _____          Zant, 677 F.2d 792, 798 (11th Cir. 1982) (explaining that defense          ____          counsel falls below performance standard by failing to understand          his client's factual  claims or the  legal significance of  those          claims);  Baty v. Balkcom, 661  F.2d 391, 394-95  (5th Cir. 1981)                    ____    _______          (holding that  defense counsel's unfamiliarity  with his client's          case transgressed performance  standard), cert. denied,  456 U.S.                                                    _____ ______          1011 (1982).  Unless counsel brings these rudiments to the table,          a defendant likely  will be  deprived of a  fair "opportunity  to          meet  the case of the  prosecution," Strickland, 466  U.S. at 685                                               __________          (quoting Adams v.  United States  ex rel. McCann,  317 U.S.  269,                   _____     _____________________________          275, 276  (1942)), and,  thus, will  be placed at  undue risk  of          having no effective advocate for his cause.  Phrased another way,          if an attorney does not  grasp the basics of the charges  and the          potential  defenses to them, an  accused may well  be stripped of          the very means  that are essential  to subject the  prosecution's          case to adversarial testing.  See id. at 688.                                        ___ ___                    We  agree with the district  court that this  is such a          case.    Defense  counsel's  pursuit  of  his  half-baked  theory          evidenced  a  blatant  misunderstanding  of  the  charged crimes.                                          18          Being  a "conduit"  denotes acting as  an agent  or intermediary.          Persons  who  knowingly  serve  as agents  or  intermediaries  in          narcotics  transactions   are  punishable  as   principals  under          Massachusetts law.   See Commonwealth v. Murillo, 589 N.E.2d 340,                               ___ ____________    _______          342 (Mass.), rev. denied, 575 N.E.2d 326  (1992); Commonwealth v.                       ____ ______                          ____________          Poole,  563 N.E.2d  253,  255 (Mass.  1990).   Thus, the  line of          _____          defense  that  counsel  selected  was  altogether  irrelevant  to          petitioner's guilt  or innocence;  and, to compound  the problem,          the steps  taken in pursuit  of it   such  as urging the  jury to          accept Desmond's testimony   played into the prosecution's hands.          Serious  errors  in  an  attorney's  performance,   unrelated  to          tactical choices  or to some plausible  strategic aim, constitute          substandard  performance.  See United  States v. Weston, 708 F.2d                                     ___ ______________    ______          302, 306 (7th Cir.) (examining  only those errors not  reasonably          classifiable as  tactical choices  to determine the  existence of          grossly  unprofessional  conduct),  cert. denied,  464  U.S.  962                                              _____ ______          (1983);  see also Francis v. Spraggins, 720 F.2d 1190, 1194 (11th                   ___ ____ _______    _________          Cir. 1983) (stating that  "complete concession of the defendant's          guilt" may constitute ineffective assistance), cert. denied,  470                                                         _____ ______          U.S. 1059 (1988); cf. United States v. Tabares, 951 F.2d 405, 409                            ___ _____________    _______          (1st Cir. 1991) (finding no ineffective assistance when counsel's          concession  is strategic); Underwood v.  Clark, 939 F.2d 473, 474                                     _________     _____          (7th Cir.  1991)  (similar).   This verity  has particular  force          where, as here, counsel's  blunders not only failed to  assist in          fashioning a  defense but also cemented  the prosecution's theory          of the  case.  There are times when even the most adroit advocate                                          19          cannot  extricate a  criminal  defendant  from  a pit;  but  when          counsel,  to no  apparent end,  digs the  hole deeper,  the Sixth          Amendment performance standard is likely implicated.                    The  Commonwealth's  rejoinder  is  lame.    First,  it          contends   that   Attorney   Tacelli  rendered   constitutionally          effective  assistance because  the conduit  defense is  a "common          defense which raises issues  considered good strategy."   This is          no more  than an  ipse dixit,  unsupported by  authority.   To be                            ____ _____          sure,  the   Commonwealth  cites   a  quadrat   of  cases   in  a          conspicuously  unsuccessful effort  to bolster  this claim    but          none of  them is persuasive  on the  point.  Two  of these  cases          stand for  the unremarkable  proposition that "mere  presence" is          not enough  to convict  in a  narcotics case,  in the absence  of          other  evidence.  See Commonwealth  v. Cruz, 614  N.E.2d 702, 704                            ___ ____________     ____          (Mass. 1993); Commonwealth v.  Brown, 609 N.E.2d 100, 103  (Mass.                        ____________     _____          1993); see also United States v. Ortiz, 966 F.2d 707, 711-12 (1st                 ___ ____ _____________    _____          Cir.  1992)  (explaining difference  between "mere  presence" and          "culpable presence" in drug-trafficking cases), cert. denied, 113                                                          _____ ______          S.  Ct.  1005   (1993).     The  other  two   cases  are   easily          distinguishable on the  facts.  See Commonwealth  v. Johnson, 602                                          ___ ____________     _______          N.E.2d  555, 559 & n.8 (Mass. 1992); Commonwealth v. Claudio, 525                                               ____________    _______          N.E.2d 449, 451-52 (Mass. 1988).                    Second, respondent attempts to cast  Attorney Tacelli's          pratfalls  as an argument for  jury nullification.   This is pure          conjecture.    The record  contains  no  indication that  counsel          strove  to implant  the notion  of  nullification in  the jurors'                                          20          minds.  In  any event, "although jurors possess  the raw power to          set the  accused free for any reason or for no reason, their duty          is  to apply  the law as  given to  them by  the court."   United                                                                     ______          States  v. Sepulveda, 15 F.3d  1161, 1190 (1st  Cir. 1993), cert.          ______     _________                                        _____          denied,  114 S. Ct. 2714  (1994); see also  Commonwealth v. Leno,          ______                            ___ ____  ____________    ____          616 N.E.2d  453, 457 (1993)  ("We do not accept  the premise that          jurors have  the right  to  nullify the  law  on which  they  are          instructed  . .  . .").   Consequently,  defense counsel  may not          press  arguments for  jury nullification  in criminal  cases, see                                                                        ___          Sepulveda,  15 F.3d at 1190; United States v. Desmarais, 938 F.2d          _________                    _____________    _________          347, 350  (1st Cir. 1991); Leno,  616 N.E.2d at 457,  and we will                                     ____          not permit the Commonwealth  to pretend that  it sat idly by  and          allowed Attorney Tacelli to violate this rule.                                    D.  Prejudice.                                    D.  Prejudice.                                        _________                    Having found  substandard performance, we come  next to          the  second prong of the Strickland inquiry.  The district court,                                   __________          while  acknowledging  that   Scarpa's  plight   was  "well   nigh          hopeless,"  bypassed  a  case-specific  inquiry  into  prejudice,          instead finding prejudice per  se on the theory that  counsel was                                    ___  __          so  derelict in  his  duty that  petitioner,  in effect,  had  no          counsel at all.   We reject the application of  a per se standard                                                            ___ __          to this  case.   Moreover, after  conducting the full  Strickland                                                                 __________          analysis in the appropriate way, we find that petitioner suffered          no actual prejudice.                                          1.                                          1.                    As mentioned above, the district court relied primarily                                          21          on dictum contained in United States v. Cronic, 466 U.S. at  658-                                 _____________    ______          60, for the  proposition that,  in the circumstances  at bar,  it          could forgo an inquiry  into actual prejudice.  The  Cronic Court                                                               ______          stated  that  in  rare  instances  prejudice  might  be  presumed          "without  inquiry into  counsel's  actual performance  at trial."          Id.  at  662  (dictum).   But,  the  approach  suggested in  this          ___          statement  is in all events the exception,  not the rule   and it          can  be  employed  only   if  the  record  reveals  presumptively          prejudicial circumstances such as  an outright denial of counsel,          a  denial of  the  right  to  effective cross-examination,  or  a          complete failure to subject the prosecution's case to adversarial          testing.6  See id. at 659.   The Cronic Court itself warned that,                     ___ ___               ______          in most cases, a showing of actual prejudice remained a necessary          element.   See id.   The Court  stated:  "there  is generally  no                     ___ ___          basis for  finding a Sixth Amendment violation unless the accused          can  show   how  specific   errors  of  counsel   undermined  the          reliability of the finding of guilt."  Id. at 659 n.26.                                                 ___                    For  the  most  part,  courts  have  been  cautious  in          invoking the exception limned in the Cronic dictum.   Cronic like                                               ______           ______          principles have been applied, for example, in situations in which                                        ____________________               6The  facts  of  Cronic  illustrate the  narrowness  of  the                                ______          exception.   In  that  case,  the  defendant  was  charged  in  a          complicated check-kiting  scheme.  The government  had spent over          four  years  investigating the  case,  but  when the  defendant's          counsel withdrew, the trial  court appointed a young real  estate          lawyer only  25 days before trial.   The Supreme Court  held that          this brief period for preparation was "not so  short that it even          arguably justifies a presumption that no lawyer could provide the          [defendant] with the effective  assistance of counsel required by          the Constitution."  466 U.S. at 665.                                          22          defense counsel labored under an actual conflict of interest, see                                                                        ___          Cuyler v. Sullivan, 446  U.S. 335 (1980), or in which no attorney          ______    ________          appeared  despite  a  defendant's  unwaived  right  to  appointed          counsel, see United States v. Mateo, 950 F.2d 44, 48-50 (1st Cir.                   ___ _____________    _____          1991),  or  in  which  defendant's lawyer  sat  in  total silence          throughout the relevant proceeding,  see Tucker v. Day, 969  F.2d                                               ___ ______    ___          155,  159 (5th  Cir. 1992)  (involving resentencing);  Harding v.                                                                 _______          Davis, 878 F.2d 1341, 1345 (11th Cir. 1989) (holding that defense          _____          counsel's muteness throughout trial,  including his utter silence          as the  judge directed  a verdict against  his client, is  per se                                                                     ___ __          prejudicial), or  in which the  defense attorney was  absent from          the courtroom during  a critical part of the  trial, see Green v.                                                               ___ _____          Arn, 809 F.2d  1257, 1259-64 (6th  Cir.), cert. granted,  vacated          ___                                       _______________________          and remanded to consider mootness, 484 U.S.  806 (1987); Siverson          _________________________________                        ________          v.  O'Leary, 764 F.2d 1208, 1217 (7th Cir. 1985), or, pre-Cronic,              _______                                               ______          in which counsel  snoozed through  much of  the proceedings,  see                                                                        ___          Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984).          _____    _____________                    A  few courts have  extended the exception's boundaries          beyond  the  circumstances surrounding  representation  and found          that  a lawyer's particular errors at trial may cause a breakdown          in  the adversarial  system  and thus  justify invocation  of the          Cronic  dictum.   See  Swanson, 943  F.2d  at 1074  (holding that          ______            ___  _______          knowingly and  explicitly conceding  reasonable doubt  in closing          argument  is per  se  prejudicial); Osborn,  861  F.2d at  628-29                       ___  __                ______          (finding per  se  prejudice when  defense  counsel  intentionally                   ___  __          stressed the brutality  of his client's crime, admitted  that the                                          23          evidence against his client was overwhelming, and made statements          to  the press  that his  client had  no evidence  to  support his          claims).   We believe that these  cases misperceive the rationale          underlying the  Cronic  exception.   In  our  view,  the  Court's                          ______          language  in Cronic was  driven by  the recognition  that certain                       ______          types  of  conduct  are in  general  so  antithetic  to effective                                  __  _______          assistance   for  example, lawyers  who leave  the courtroom  for          long  stretches of time during  trial are unlikely  to be stellar          advocates  in any matter   that a case-by-case analysis simply is          not worth the  cost of protracted litigation.  No matter what the          facts of  a given case may  be, this sort of  conduct will almost          always result in prejudice.  See Cronic, 466 U.S. at 658-59.  But                                       ___ ______          attorney errors particular to the facts of an individual case are          qualitatively different.   Virtually  by definition, such  errors          "cannot  be   classified  according  to  likelihood   of  causing          prejudice"  or  "defined  with  sufficient  precision  to  inform          defense  attorneys  correctly   just  what  conduct  to   avoid."          Strickland,  466  U.S.  at  693.   Consequently,  the  Court  has          __________          declined to accord presumptively prejudicial status to them.  See                                                                        ___          id.          ___                    We are  not alone in  our attempt  to harmonize  Cronic                                                                     ______          with  Strickland by  drawing  an easily  visible line  separating                __________          those few cases in which prejudice may be presumed from the mine-          run (in which actual  prejudice must be shown).   When confronted          by  particular  errors  on  the  part of  defense  counsel,  best          evaluated  in the context of the defendant's trial, other federal                                          24          courts  have refused  to  march  under  the Cronic  banner,  and,                                                      ______          instead,  notwithstanding the  seriousness  of  the errors,  have          performed both parts of the requisite Strickland analysis.  Thus,          in  McInerny  v.  Puckett, 919  F.2d  350  (5th  Cir. 1990),  the              ________      _______          defendant  claimed that  his  lawyer's lack  of preparedness  and          failure to  raise an insanity defense justified the invocation of          the Cronic dictum.  See id. at 352-53.  In requiring a showing of              ______          ___ ___          prejudice,  the   Fifth  Circuit   noted  that   "bad  lawyering,          regardless of how bad, does not support the [per se] presumption;                        ___                            ___ __          more  is  required."   Id.  at  353; see  also  United States  v.                                 ___           ___  ____  _____________          Thompson, 27 F.3d 671, 676 (D.C. Cir. 1994) (finding no prejudice          ________          per se  in defense counsel's  failure to inform  defendant before          ___ __          guilty  plea that, as a  career offender, he  faced possible life          imprisonment); United  States v. Baldwin, 987  F.2d 1432, 1437-38                         ______________    _______          (9th Cir.) (finding no  prejudice per se where attorney  conceded                                            ___ __          his  client's  guilt  at  pretrial conference  and  neglected  to          request jury instruction on  overt act requirement for conspiracy          charge),  cert.  denied,  113  S. Ct.  2948  (1993);  Woodard  v.                    _____  ______                               _______          Collins, 898  F.2d 1027, 1028 (5th Cir.  1990) (requiring showing          _______          of prejudice where  defense counsel advised the  accused to plead          guilty to  a charge that  counsel had  not investigated);  United                                                                     ______          States v. Reiter, 897  F.2d 639, 644-45 (2d Cir.)  (applying full          ______    ______          Strickland standard in spite  of defendant's claim that counsel's          __________          errors were so pervasive  as to amount to  "no counsel at  all"),          cert. denied, 498 U.S. 990 (1990); Green v.Lynaugh, 868 F.2d 176,          _____ ______                       _____   _______          177-78  (5th   Cir.)  (applying  full   Strickland  analysis   to                                                  __________                                          25          attorney's decision to conduct  "almost no investigation"), cert.                                                                      _____          denied,  493 U.S. 831 (1989); Henderson v. Thieret, 859 F.2d 492,          ______                        _________    _______          499  (7th Cir.  1988)  (applying second  prong  of Strickland  to                                                             __________          attorney's  lack of preparation  in connection  with sentencing),          cert.  denied, 490 U.S. 1009  (1989); Gardner v.  Ponte, 817 F.2d          _____  ______                         _______     _____          183, 186-87 (1st Cir.)  (refusing to extend Cronic to  attorney's                                                      ______          failure to object to  jury instructions), cert. denied,  484 U.S.                                                    _____ ______          863  (1987); State  v.  Savage, 577  A.2d  455, 466  (N.J.  1990)                       _____      ______          (finding no prejudice per se in a capital case where counsel only                                ___ __          met once  with defendant).    Similarly, in  reviewing claims  of          ineffective assistance of counsel  at the appellate level, courts          have  declined to  apply Cronic  to attorney  errors that  do not                                   ______          amount to  the  constructive  absence of  counsel.    See,  e.g.,                                                                ___   ____          Hollenback v. United States, 987 F.2d 1272, 1276  & n.1 (7th Cir.          __________    _____________          1993)  (finding  no  per  se  prejudice  in  appellate  counsel's                               ___  __          citation to wrong provision  of money-laundering statute); United                                                                     ______          States v. Birtle, 792  F.2d 846, 847-48 (9th Cir.  1986) (finding          ______    ______          no per se prejudice when  defendant's appellate counsel failed to             ___ __          appear at oral argument or file a reply brief).7                                        ____________________               7Of course, courts have not required  a showing of prejudice          when the  attorney's inadequate performance completely denies the          defendant his right  to an appeal.  See, e.g.,  Bonneau v. United                                              ___  ____   _______    ______          States, 961 F.2d 17, 23 (1st Cir.  1992) (requiring no showing of          ______          prejudice when  the defendant's appeal  was dismissed due  to his          lawyer's failure to file  a brief); United States ex  rel. Thomas                                              _____________________________          v.  O'Leary,  856 F.2d  1011,  1016-17 (7th  Cir.  1988) (finding              _______          prejudice  per se  when  defense counsel  filed  no brief  during                     ___ __          state's appeal  of a suppression  order and the  ensuing decision          was  thus based only on  the record and  the government's brief);          Williams v. Lockhart,  849 F.2d  1134, 1137 n.3  (8th Cir.  1988)          ________    ________          (finding prejudice per  se in attorney's failure to  bring appeal                             ___  __          after promising to do so).                                          26                    These  authorities  suggest that  attorney  error, even          when  egregious,  will  almost   always  require  analysis  under          Strickland's prejudice prong.   We  agree.  Thus,  we decline  to          __________          adopt the  expanded version  of Cronic  embraced by the  district                                          ______          court.  Our reasons are manifold, but four of them are paramount.                    First,  we do not think that the Court intended such an          expansion to  occur.  Second, once it is necessary to examine the          trial record  in order  to evaluate counsel's  particular errors,          resort to a per se presumption is no longer justified by the wish                      ___ __          to avoid the cost of case-by-case litigation.  An overly generous          reading of Cronic would do  little more than replace case-by-case                     ______          litigation  over  prejudice  with  case-by-case  litigation  over          prejudice per se.                    ___ __                    Third,  in  our judgment  the  proper  approach to  the          intended  reach  of  the   Cronic  dictum  is  informed  by   the                                     ______          refinements of the harmless-error doctrine contained in a battery          of  recent  Supreme Court  cases.    Some constitutional  errors,          denominated  "trial errors,"  will not  result in  reversal of  a          conviction  if they  are shown  to be  harmless.   See Brecht  v.                                                             ___ ______                                        ____________________                    The counterpoint, however, is that  in deciding whether          to require a showing of prejudice for inadequate legal assistance          on appeal,  courts have traced  a line,  analogous to the  one we          draw  today,  distinguishing  between inept  performance  and  no          performance.   See, e.g., Penson v.  Ohio, 488 U.S. 75, 88 (1988)                         ___  ____  ______     ____          (requiring  no  showing  of  prejudice  when  defendant's  lawyer          withdrew  without filing  a brief  on appeal,  and distinguishing          this situation from  "a case  in which counsel  fails to press  a          particular  argument  on appeal  or fails  to  argue an  issue as          effectively as he or she might") (citation omitted); Bonneau, 961                                                               _______          F.2d at 23 (requiring no showing of prejudice  but distinguishing          its  facts from "a case of sloppy briefing that missed some vital          issues" or a case of "inadequate oral argument").                                          27          Abrahamson, 113 S. Ct. 1710, 1722 (1993); Arizona v.  Fulminante,          __________                                _______     __________          499  U.S.  279, 306-08  (1991).   Examples  of such  trial errors          include overbroad jury  instructions used  during the  sentencing          stage of a  capital case,  see Clemons v.  Mississippi, 494  U.S.                                     ___ _______     ___________          738, 752  (1990); jury instructions containing  an erroneous (but          rebuttable) presumption, see Carella v. California, 491 U.S. 263,                                   ___ _______    __________          266-67  (1989);  and  improper   prosecutorial  comment  on   the          defendant's  silence, see United States v. Hasting, 461 U.S. 499,                                ___ _____________    _______          509 (1983).  However,  other more fundamental errors, denominated          "structural  errors,"  jar  the  framework  in  which  the  trial          proceeds  and,  accordingly,  are   said  to  "defy  analysis  by          `harmless-error' standards," Brecht, 113  S. Ct. at 1717 (quoting                                       ______          Fulminante, 499  U.S. at  309), and, thus  necessitate "automatic          __________          reversal of [a] conviction because  they infect the entire  trial          process,"  id.   In effect,  then, the harmfulness  of structural                     ___          errors  can be  conclusively  presumed.   Examples of  structural          errors, in addition to total deprivation of the right to counsel,          see Gideon v. Wainwright, 372 U.S. 335 (1963), include failing to          ___ ______    __________          give   a   constitutionally    sufficient   "reasonable    doubt"          instruction, see Sullivan v. Louisiana,  113 S. Ct. 2078, 2081-82                       ___ ________    _________          (1993);   permitting  a   trial  to   proceed  before   a  biased          adjudicator, see Tumey  v. Ohio,  273 U.S. 510,  535 (1927);  and                       ___ _____     ____          discriminatorily excluding  members of a defendant's  race from a          grand  jury, see Vasquez v. Hillery, 474 U.S. 254, 260-62 (1986),                       ___ _______    _______          or a petit jury, see Batson v. Kentucky, 476 U.S. 79, 100 (1986).                           ___ ______    ________          The  "common thread"  connecting the  numerous examples  of trial                                          28          error listed by Chief Justice Rehnquist in Fulminante is that all                                                     __________          such errors occur  "during the  presentation of the  case to  the          jury,"  and  therefore may  "be  quantitatively  assessed in  the          context  of   [the]  evidence   presented"  in  order   to  gauge          harmlessness.  Fulminante, 499 U.S. at 307-08.                         __________                    We  are confident  that  what transpired  in this  case          bears  a  much  stronger  resemblance  to  trial  error  than  to          structural error.   Like  the line separating  trial errors  from          structural errors, the line past which prejudice will be presumed          in cases  involving claims of ineffective assistance  ought to be          plotted to exclude cases in  which a detailed contextual analysis          is required.  Drawing the line in this way is especially fitting,          we   suggest,  because  like  the  harmless-error  doctrine,  the          prejudice prong of Strickland helps to promote the salutary tenet                             __________          that  "the central purpose of  a criminal trial  is to decide the          factual  question  of the  defendant's  guilt  or innocence,  and          promote[]  public respect for the criminal process by focusing on          the underlying fairness of the trial rather than on the virtually          inevitable  presence  of  immaterial  error."   Delaware  v.  Van                                                          ________      ___          Arsdall, 475 U.S. 673, 681 (1986) (citation omitted).          _______                    Our  fourth  and final  reason  for  taking a  somewhat          narrow  view of  the  Cronic dictum  is  closely related  to  the                                ______          concerns  that  the Court  has  expressed  in the  harmless-error          cases.   In addition to comity and federalism concerns, the state          has  an important interest in  the finality of  its jury verdicts          and in keeping behind  bars criminals who have been  fairly tried                                          29          and justly convicted.   Forcing  a state to  retry its  criminals          imposes  social  costs, including  the  expenditure  of time  and          resources  for all concerned; the dispersal  of witnesses and the          erosion  of witnesses'  memories;  and the  occurrence of  sundry          other events that make obtaining  a conviction more difficult  on          retrial.  See Brecht, 113 S. Ct. at 1720-21; cf. Barker v. Wingo,                    ___ ______                         ___ ______    _____          407 U.S. 514, 522 n.16 (1972) (admonishing that the public has an          "interest in trying people accused of crime, rather than granting          them immunization  because of  legal error")  (citation omitted).          For this reason, federal  courts should not rush to  overturn the          state-court  conviction of a  defendant who, although represented          by mistake-prone counsel,  is unable to show how  (if at all) the          lawyer's  bevues undermined  the fairness  or reliability  of the          trial's result.8                                        ____________________               8At any  rate, this is  not the  case in which  to push  the          envelope.   Even  if one  were to  accept the  expansive view  of          Cronic exemplified  by Swanson, 943  F.2d 1070,  the record  here          ______                 _______          simply  does not  justify  a finding  of  a complete  failure  to          subject the prosecution's case to meaningful adversarial testing.          Indeed, in  the  unpublished rescript  accompanying  its  summary          affirmance  of  Scarpa's  conviction,  the  Massachusetts Appeals          Court  did  not  even  find  Attorney  Tacelli's  conduct  to  be          "manifestly unreasonable."  See Commonwealth v. Scarpa, No. 90-P-                                      ___ ____________    ______          694,  at 2  (Mass. App.  Ct.  Mar. 7,  1991).   While  we do  not          necessarily agree with this evaluation, see supra Part III(C), we                                                  ___ _____          recognize that whatever his  failings, Attorney Tacelli strove to          impress  the jury with  the gravity of  the prosecution's burden.          For  example, he focused in  his summation on  "the obligation of          the  Government to  prove their  [sic] case  beyond a  reasonable          doubt"; reminded the jurors that, in deciding the case, they must          "have  an  abiding conviction";  and  told them  that  they could          "choose to believe everything a witness says, disbelieve it, [or]          believe  half of  it."   Although Attorney  Tacelli weakened  his          presentation  by his later remarks, quoted ante, he still left it                                                     ____          up to the jury to decide the ultimate question of Scarpa's guilt.          Hence,  we do not find  in this record  such a deliberate rolling          over as might warrant a finding  of an absolute breakdown of  the                                          30                    To   summarize,  we   hold  that   Strickland  controls                                                       __________          inquiries concerning  counsel's actual performance at  trial, and          that  substandard  performance,  in  the   nature  of  particular          attorney  errors, cannot  conclusively be  presumed to  have been          prejudicial.   Silhouetted against this backdrop,  we consider it          supremely  important that  Attorney Tacelli's blunders  cannot be          judged  solely   by  the   "surrounding  circumstances"  of   the          representation, but, rather, must be judged in light of the whole          record, including  the facts of  the case, the  trial transcript,          the exhibits, and  the applicable substantive  law.  We  conclude          that this characterization places the case beyond Cronic's reach.                                                            ______          Put  bluntly,  because  Attorney  Tacelli's errors  are  more  an          example  of  maladroit   performance  than  of   non-performance,          Strickland necessitates  an inquiry into the  existence of actual          __________          prejudice.                                          2.                                          2.                    Since the district court presumed prejudice, it made no          explicit findings on the second prong of the Strickland test.  We                                                       __________          have considered  the advisability of remanding  for this purpose,          but we conclude that it is unnecessary to do so.  The  origins of          the case date back to 1987;  the parties have briefed and  argued          the  issue of actual prejudice;  and the record  is sufficient to          permit  us to perform the decisionmaking task.  Moreover, all the          evidence was taken in the state courts; thus, we are in as good a          position as the federal district judge to probe the matter.  And,                                        ____________________          adversarial process.                                          31          finally, even if  a finding were made below,  we would be obliged          to exercise de novo review, see supra p. 13.  This combination of                      __ ____         ___ _____          factors  persuades  us  to  undertake  the  inquiry  into  actual          prejudice.                    A  convicted  defendant  can  establish  the  requisite          prejudice in  an ineffective  assistance case by  demonstrating a          reasonable probability that, but  for counsel's bevues, the trial          outcome   would  have  been  different.    For  this  purpose,  a          reasonable  probability  is  defined  as  that  which  undermines          confidence  in the result of the proceeding.  See Strickland, 466                                                        ___ __________          U.S. at 694; see  also Kotteakos v. United States, 328  U.S. 750,                       ___  ____ _________    _____________          764 (1946).  We caution however, that the analysis does not focus          solely on  outcome determination,  but also takes  into prominent          consideration  "whether   the  result   of  the  proceeding   was          fundamentally unfair  or unreliable."  Lockhart  v. Fretwell, 113                                                 ________     ________          S. Ct. 838,  842 (1993).  This question must  be answered without          reference to certain extraneous factors, such as "the possibility          of  arbitrariness,  whimsy,  caprice,  `nullification,'  and  the          like," which do not  legitimately enter the jury's deliberations.          Strickland,  466 U.S. at 695.  With these omissions, our analysis          __________          proceeds "on the assumption that the decisionmaker is reasonably,          conscientiously,  and impartially  applying  the  standards  that          govern the decision."  Id.                                 ___                    Despite  Attorney Tacelli's  ineptitude, we  discern no          actual   prejudice  here.     The  government   presented  clear,          uncontroverted   eyewitness   testimony   from   an   agent   who                                          32          participated in  both drug-trafficking  transactions and  who had          conducted more  than 30 undercover operations  during his career.          Eight  other law officers assisted agent  Desmond and stood ready          to  testify in a substantially similar fashion if the need arose.          The risk of prejudice from Attorney Tacelli's ill-advised request          that the  jury credit the  government's witness was  minimized by          the   one-sidedness  of   the  evidence;   here,  there   was  no          contradictory  version of  the critical  events that  a skeptical          jury  otherwise might  have chosen  to believe.   Similarly,  any          facts  tacitly  conceded during  Attorney  Tacelli's misconceived          "conduit" argument were overwhelmingly supported by the proof; as          we  have mentioned,  the  record contains  not  one scintilla  of          exculpatory  evidence.   To this  day, petitioner  has  failed to          identify  any  promising  line  of  defense  or  to  construct  a          plausible scenario  that, if exploited, might have given the jury          pause.                    We agree with the district court's observation that, on          this record, it is difficult to imagine any rational jury failing          to convict.   Because there is  neither a reasonable  probability          that the outcome of the trial would have differed if  counsel had          been more adept  nor any solid basis for believing that the trial          was  fundamentally  unfair  or  unreliable,  no  Sixth  Amendment          violation inheres.          IV.  CONCLUSION          IV.  CONCLUSION                    We need go  no further.   Petitioner's habeas claim  is          ripe  for review, but,  upon due consideration,  the claim fails.                                          33          Hence,  the judgment below must be reversed and the case remanded          to  the  district court  for the  entry  of an  appropriate order          clearing the  way  for  the  Commonwealth to  resume  custody  of          petitioner.          Reversed and remanded.          Reversed and remanded.          _____________________                                          34
