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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1924 <br> <br>                         PEDRO F. TORRES, <br> <br>                           Petitioner, <br> <br>                                v. <br> <br>                         LARRY E. DUBOIS, <br>                        SCOTT HARSHBARGER, <br> <br>                           Respondents. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Reginald C. Lindsay, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>Aldrich and Cudahy, Senior Circuit Judges. <br> <br>                      _____________________ <br> <br>     Brownlow M. Speer, Committee for Public Counsel Services, <br>Public Defender Division, was on brief, for petitioner. <br>     Susanne Levsen, Assistant Attorney General, Criminal Bureau, <br>with whom Scott Harshbarger, Attorney General, was on brief, for <br>respondents. <br> <br> <br>                       ____________________ <br> <br> <br>                       ____________________

         TORRUELLA, Chief Judge.  Plaintiff-appellant Pedro F. <br>Torres ("Torres") filed this petition for writ of habeas corpus <br>under 28 U.S.C.  2254.  The sole issue before us is whether the <br>jury instructions in Torres's state court murder trial violated his <br>due process rights by impermissibly shifting the burden of proof.  <br>Like the district court before us, we find that the jury <br>instructions did not violate Torres's due process rights under the <br>Fourteenth Amendment, and we therefore affirm the district court's <br>dismissal of the petition for writ of habeas corpus. <br>                            BACKGROUND <br>         The events that led to the murder charge in this case are <br>detailed in the prior decision of the Supreme Judicial Court of <br>Massachusetts ("SJC").  See Commonwealth v. Torres, 651 N.E.2d 360 <br>(Mass. 1995).  In brief, during the evening of December 14, 1990, <br>the defendant and his sister went to visit an individual who <br>resided in a second-floor apartment over the Harborview Caf, a bar <br>located in New Bedford.  Shortly after midnight, the defendant's <br>sister and another woman went downstairs to purchase beer at the <br>bar.  When the sister returned, she told the defendant that the <br>victim, Jos Fernndes, had bothered her while she was in the bar. <br>The defendant then entered the bar and confronted the victim.  The <br>two men stepped outside and began to argue about improper remarks <br>the victim allegedly had made to the defendant's sister.  After the <br>defendant pushed him, Fernndes pulled a knife from his rear <br>pocket, placed it on the ground, and challenged the defendant to <br>fight "man to man."  The defendant indicated that he did not want <br>to fight.  Fernndes, the defendant, and his sister then returned <br>to the bar. <br>         Shortly thereafter, Fernndes displayed the knife again <br>and started to threaten the defendant's sister.  The bartender <br>yelled at Fernndes to stop, and Fernndes put away the knife.  The <br>defendant then pulled out a gun and fired three shots at Fernndes.  <br>The first shot, fired from a range of six to eighteen inches, hit <br>the victim in the face.  The other two shots entered the victim's <br>back.  When the defendant realized that the bartender had <br>telephoned the police, he ran out of the bar.  He and his sister <br>telephoned a taxi and returned home, where the defendant ate dinner <br>and went to sleep. <br>         Later that morning, an officer with the New Bedford <br>police department arrested the defendant and transported him to the <br>police station.  On route to the station, the defendant asked the <br>officer whether the victim had died.  When the officer did not <br>respond, the defendant asked whether the victim had "died right <br>away, or did he talk to you cops."  The officer advised the <br>defendant of his Miranda rights and told him that if he wished to <br>speak with the officer, he could do so at the police station.  The <br>defendant then stated that he wished to speak with the officer <br>about the incident, and that the victim "had no respect and <br>deserved what he got."  At the station, the officer booked the <br>defendant and again advised him of his Miranda rights.  The <br>defendant then gave a statement.  He claimed that the victim had a <br>knife when the two men had been standing outside the bar.  Once <br>inside the bar, the defendant heard Fernndes threaten his sister.  <br>The sister shoved the victim, and the victim responded by pushing <br>her in the face with his hand.  At this point, the defendant walked <br>over to Fernndes and shot him in the face.  When Fernndes tried <br>to run away, the defendant pursued him and shot him twice in the <br>back.  The defendant agreed to repeat this statement and have it <br>videotaped.  The videotape was admitted in evidence and viewed by <br>the jury. <br>         The defense offered no evidence, conceding the homicide <br>and defending solely on a theory of manslaughter, rather than <br>murder in the first degree by deliberate premeditation, as the <br>prosecution claimed.  The jury convicted the defendant of <br>premeditated murder in the first degree, and the trial judge <br>sentenced him to life imprisonment. <br>         Torres appealed, asserting several alleged errors in the <br>judge's instructions to the jury.  The Supreme Judicial Court  <br>affirmed his conviction,  see id., and Torres brought this petition <br>for writ of habeas corpus in the district court for the district of <br>Massachusetts.  The district court found that the jury instructions <br>did not violate Torres' due process rights.  However, the district <br>court issued a certificate of appealability on the issue of whether <br>the trial judge's jury instructions improperly shifted the burden <br>of proof.  This appeal ensued.

                            DISCUSSION <br>I.  Procedural Default <br>         Federal habeas review is precluded if the state court <br>reached its decision on an adequate and independent state-law <br>ground when affirming Torres's conviction.  See Burks v. DuBois, 55 <br>F.3d 712, 716 (1st Cir. 1995) (citing Coleman v. Thompson, 501 U.S. <br>722, 729 (1991); Harris v. DuBois, 489 U.S. 255 (1989); and Ortizv. DuBois, 19 F.3d 708, 714 (1st Cir. 1994)).  One such ground in <br>this case may be Massachusetts' "contemporaneous objection" rule.  <br>Commonwealth v. Fluker, 385 N.E.2d 256 (Mass. 1979) (failure to <br>object specifically to trial deficiency "precludes appellate <br>review");  see also McLaughlin v. Gabriel, 726 F.2d 7, 8 (1st Cir. <br>1984) (in Massachusetts, "defendant normally cannot challenge an <br>allegedly defective charge unless he has objected to the specific <br>instruction at trial").  Torres did not object to the giving of the <br>contested jury instruction at trial. <br>         We normally find a waiver of this state ground where the <br>state courts, after reviewing a conviction, affirm it, not on the <br>basis of the "contemporaneous objection rule," but on the basis of <br>their own analysis of federal law.  See Puleio v. Vose, 830 F.2d <br>1197, 1200 (1st Cir. 1987) (waiver only occurs if court reaches  <br>"gist of the federal constitutional question"); McCown v. Callahan, <br>726 F.2d 1, 3 (1st Cir. 1984) (waiver if Supreme Judicial Court <br>conducts "detailed examination of federal law and federal cases <br>. . . necessary to decide a specific question of federal law").  <br>Sometimes it is difficult to determine whether or not the state <br>courts have relied on the "contemporaneous objection rule," or on <br>their view of federal law, particularly where, as here, the state <br>Supreme Judicial Court exercised its special statutory power to <br>review verdicts in capital cases, see Mass. Gen. Laws ch. 278, <br> 33E, in order to determine whether there was a "substantial risk <br>of a miscarriage of justice."  This special discretionary review, <br>in a sense, always overlooks a failure to raise an objection at <br>trial, but it does so only in the context of applying a specially <br>stringent standard of review.  See  Doucette v. Vose, 842 F.2d 538, <br>539 (1st Cir. 1988).  We have held that the mere fact that the <br>Supreme Judicial Court engages in such review does not <br>automatically waive -- for federal habeas purposes -- its "adequate <br>state  ground."  Id.  Nonetheless, if, in the course of such <br>review, the Supreme Judicial Court makes reasonably clear that its <br>reasons for affirming a conviction rest upon its view of federal <br>law, we will find a waiver.  See id.  That is the case here.  In <br>our view, the Supreme Judicial Court reached, and decided, the <br>federal issue. <br>         Because it may be useful for the reader to see the kind <br>of state court discussion that will lead us to find a waiver, and <br>because the discussion clearly explains the federal law issue, we <br>set forth that discussion in full: <br>         c. Reasonable provocation instruction.  The <br>         defendant next asserts that, because the judge <br>         mingled correct with incorrect instructions <br>         regarding the mitigating circumstance of heat <br>         of passion, without any explanation of the <br>         "constitutionally infirm" instructions, the <br>         portion of the charge addressing "reasonable <br>         provocation" denied the defendant his <br>         Fourteenth Amendment due process rights.  We <br>         agree that the judge misstated the law when he <br>         instructed that "in order to prove the <br>         defendant guilty of voluntary manslaughter, <br>         the Commonwealth must prove . . . [that] the <br>         defendant injured the victim as a result of a <br>         sudden combat or in the heat of passion." <br>         Nevertheless, we conclude that the error did <br>         not violate the  defendant's Federal due <br>         process rights, nor did it create a <br>         substantial likelihood of a miscarriage of <br>         justice. <br> <br>       The due process clause of the Fourteenth <br>     Amendment to the United States Constitution <br>     "protects the accused against conviction <br>     except upon proof beyond a reasonable doubt of <br>     every fact necessary to constitute the crime <br>     with which he is charged."  Francis v. <br>     Franklin, 471 U.S. 307, 313 (1985), quoting In <br>     re Winship, 397 U.S. 358, 364 (1970).  This <br>     fundamental principle prohibits a judge from <br>     using "evidentiary presumptions in a jury <br>     charge that have the effect of relieving the <br>     State of its burden of persuasion beyond a <br>     reasonable doubt of every essential element of <br>     a crime." Francis v. Franklin, supra.  See <br>     Sandstrom v. Montana, 442 U.S. 510, 520-524 <br>     (1979); Commonwealth v. Lykus, 406 Mass. 135, <br>     143 (1989).  In order to determine whether a <br>     jury instruction fails to meet constitutional <br>     muster, a reviewing court first must focus on <br>     the specific language challenged.  California <br>     v. Brown, 479 U.S. 538, 541 (1987), citing <br>     Francis v. Franklin, supra at 315.  If that <br>     language, considered in isolation, "could <br>     reasonably have been understood as creating a <br>     presumption that relieves the State of its <br>     burden of persuasion on an element of an <br>     offense," Francis v. Franklin, supra, then the <br>     reviewing court must examine the charge as a <br>     whole to see if the entire charge delivered a <br>     correct interpretation of the law.  SeeCalifornia v. Brown, supra at 541.  See alsoBoyde v. California, 494 U.S. 370, 378 (1990), <br>     quoting Cupp v. Naughten, 414 U.S. 141 (1973) <br>     ("we accept at the outset the well-established <br>     proposition that a single instruction to a <br>     jury may not be judged in artificial <br>     isolation, but must be viewed in the context <br>     of the  overall charge"). <br> <br>       The defendant cites Francis v. Franklin, <br>     supra, in support of his claim.  In that case, <br>     the United States Supreme Court stated that <br>     "[l]anguage that merely contradicts and does <br>     not explain a constitutionally infirm <br>     instruction will not suffice to absolve the <br>     infirmity" because "[a] reviewing court has no <br>     way of knowing which of the two irreconcilable <br>     instructions the jurors applied in reaching <br>     their verdict" (footnote omitted).  Id. at <br>     322.  Francis v. Franklin does not assist the <br>     defendant for two reasons.  First, although, <br>     at one point, the judge misstated the <br>     Commonwealth's burden, we do not believe that <br>     the error had "the effect of relieving the <br>     [Commonwealth] of its burden of persuasion <br>     beyond a reasonable doubt of every essential <br>     element of [the] crime [charged]," id. at 313, <br>     nor did it shift any burden to the defendant.  <br>     See Sandstrom v. Montana, supra at 520-524.  <br>     The judge's misstatement, therefore, was not <br>     "constitutionally infirm."  Second, even if we <br>     were to conclude that the instruction was <br>     constitutionally infirm, Francis v. Franklinaccepts the general principle that such an <br>     instruction should be considered in the <br>     context of the entire charge.  See Estelle v.McGuire, 502 U.S. 62, 72 (1991), quoting Cuppv. Naughten, 414 U.S. 141, 147 (1973)  <br>     ("instruction 'may not be judged in artificial <br>     isolation,' but must be  considered in the <br>     context of the instructions as a whole"); <br>     Commonwealth v. Repoza, 400 Mass. 516, 519, <br>     cert. denied, 484 U.S. 935 (1987) ("jury <br>     instructions are not to be viewed in isolation <br>     but rather in the context of the charge as a <br>     whole").  Reviewing the whole charge, <br>including the judge's emphatic and repeated <br>statements that only the Commonwealth--and <br>never the defendant--bore any burden, we <br>believe that the jury could not have concluded <br>that the judge's misstatement created an <br>unconstitutional presumption relieving the <br>State of its burden of persuasion beyond a <br>reasonable doubt of every element of <br>deliberately premeditated murder in the first <br>degree. The instruction did not violate the <br>defendant's Federal due process rights, nor <br>did it create a substantial likelihood of a <br>miscarriage of justice. <br> <br>Torres, 651 N.E.2d at 366-68 (footnotes in original). <br>     Although state law is cited in this discussion, federal <br>case law is preeminent.  Because the resolution of Torres's claim <br>was not based on an adequate and independent state-law ground, but <br>rather on federal constitutional law, his claim is not in <br>procedural default. <br>II.  Clearly Established Federal Law <br>     The Antiterrorism and Effective Death Penalty Act of <br>1996, Pub. L. 104-132, Title I,  104, 110 Stat. 1219, governs the <br>issuance of writs of habeas corpus.  It states in part that:  <br>     (d) [a]n application for a writ of habeas <br>     corpus on behalf of a person in custody <br>     pursuant to the judgment of a State court <br>     shall not be granted with respect to any claim <br>     that was adjudicated on the merits in State <br>     court proceedings unless the adjudication of <br>     the claim--  <br>     (1) resulted in a decision that was contrary <br>     to, or involved an unreasonable application <br>     of, clearly established Federal law, as <br>     determined by the Supreme Court of the United <br>     States;  or  <br>     (2) resulted in a decision that was based on <br>     an unreasonable determination of the facts in <br>     light of the evidence presented in the State <br>     court proceeding. <br> <br>28 U.S.C.  2254(d). <br>     First, we must determine whether "the Supreme Court has <br>prescribed a rule that governs the petitioner's claim."  Ortiz v. <br>DuBois, 145 F.3d 16, 24 (1st Cir. 1998).  If so, we analyze whether <br>the state court decision is "contrary to" that prescribed rule.  <br>See id.  "To obtain relief . . . [the] petitioner must show that <br>Supreme Court precedent requires an outcome contrary to that <br>reached by the relevant state court."  Id. at 24-25.  Because we <br>agree with the parties that Francis v. Franklin, 471 U.S. 307 <br>(1985), provides the governing rule, our discussion centers on that <br>Supreme Court case. <br>     In Franklin, the Supreme Court evaluated jury <br>instructions stating that: (1) "[t]he acts of a person of sound <br>mind and discretion are presumed to be the product of the person's <br>will, but the presumption may be rebutted," id. at 309, and (2) <br>"[a] person of sound mind and discretion is presumed to intend the <br>natural and probable consequences of his acts but the presumption <br>may be rebutted." Id.  At issue was "whether these instructions, <br>when read in the context of a jury charge as a whole, violate the <br>Fourteenth Amendment's requirement that the State prove every <br>element of a criminal offense beyond a reasonable doubt."  Id.  <br>Because these jury instructions directed "the jury to presume an <br>essential element of the offense," id. at 316, they undermined "the <br>factfinder's responsibility at trial, based on evidence adduced by <br>the State to find the ultimate facts beyond a reasonable doubt."  <br>Id.  <br>     Here, Torres complains that the judge's instruction on <br>mitigating circumstances created an evidentiary presumption that <br>had the effect of relieving the Commonwealth of its burden to prove <br>beyond a reasonable doubt each element of the crime charged against <br>the petitioner.  The contested instruction is as follows: <br>     The crime of manslaughter involves certain <br>     mitigating circumstances which I will outline <br>     for you, and these mitigating circumstances, <br>     if they exist to your satisfaction, operate to <br>     negate the element of malice. <br> <br>(Emphasis added).  As demonstrated in the quotation from the SJC's <br>opinion, see supra at 8, the state court recognized that this <br>instruction was a misstatement of the law, but the instruction did <br>not constitute error under Franklin because: (1) it did not relieve <br>the Commonwealth of proving beyond a reasonable doubt each element <br>of the offense charged; and (2) it did not inappropriately shift <br>any burden of proof to the petitioner.  We agree with the district <br>court in this case that "[t]he instruction merely pointed out that <br>the jury could find the lesser included offense of manslaughter if <br>the jury found, in the evidence, circumstances which mitigated one <br>of the elements of murder."  Consequently, the petitioner has <br>failed to show that Supreme Court precedent requires an outcome <br>contrary to that reached by the Supreme Judicial Court. <br>                            CONCLUSION <br>     For the reasons stated above, the judgment of the <br>district court is AFFIRMED. <br></pre>

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