     [NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]


         United States Court of Appeals
                    For the First Circuit


No. 99-2118

                      KURT L. HUENEFELD,

                         Petitioner,

                              v.

                    MICHAEL MALONEY, ETC.,

                         Respondent.


        ON PETITION FOR A CERTIFICATE OF APPEALABILITY
             FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Richard G. Stearns, U.S. District Judge]


                            Before

                   Selya, Boudin and Lynch,

                       Circuit Judges.


    Kurt L. Huenefeld pro se on petition.




                        March 15, 2001
              Per Curiam. Kurt Huenefeld, a state prisoner sentenced

to    life     imprisonment,           petitions        for    a     certificate      of

appealability (COA) so that he may appeal the district court's

denial of his application for a writ of habeas corpus.                            See 28

U.S.C. § 2253.            This application is the progeny of several

earlier      affirmations         of    the    petitioner's          1983   conviction

following a jury trial in a Massachusetts state court on charges

of second-degree murder, burglary, and armed assault.                             In the

first    instance,        the    Massachusetts        Appeals      Court    upheld   the

conviction and the Supreme Judicial Court (SJC) denied further

appellate review.            Commonwealth v. Huenefeld, 475 N.E.2d 439

(Mass. App. Ct. 1985),                rev.    denied, 478 N.E.2d 1274 (Mass.

1985).    The petitioner thereafter moved unsuccessfully for a new

trial.       That denial likewise was affirmed.                      Commonwealth v.

Huenefeld, 614 N.E.2d 999 (Mass. App. Ct. 1993), rev. denied,

687 N.E.2d 651 (Mass. 1997).

              The petitioner then sought federal habeas relief.                      See

28 U.S.C. § 2254.               The United States District Court for the

District of Massachusetts dismissed this "mixed" application for

failure to exhaust state remedies.                   See Rose v. Lundy, 455 U.S.

509, 510 (1982).           The petitioner returned to the state courts

and   filed    a    second      new    trial       motion.     The     superior    court

rebuffed      him   and    the    ruling      withstood       direct    attack.      See


                                             -2-
Commonwealth v. Huenefeld, 687 N.E.2d 651 (Mass. App. Ct. 1997),

rev. denied, 691 N.E.2d 581 (Mass. 1998).

            On March 3, 1998, the petitioner reapplied for a writ

of habeas corpus.        The named respondent, a state correctional

official, moved to dismiss.          See Rule 4, Rules Governing Habeas

Corpus,    28   foll.   §   2254.      A     magistrate     judge       recommended

granting the motion, and the district court adopted the report

in full.    See Huenefeld v. Maloney, 62 F. Supp. 2d 211 (D. Mass.

1999)      (reproducing       text     of      magistrate's          report       and

recommendation).        Consequently, the court dismissed the habeas

application.       It   thereafter     refused       to    issue    a   COA.      The

petitioner renews his request in this court.                     See 28 U.S.C. §

2253(c); Fed. R. App. P. 22(b)(1).

            A provision in the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) directs federal courts to deny a

state prisoner's application for a writ of habeas corpus "unless

the underlying state adjudication (1) resulted in a decision

that was contrary to, or involved an unreasonable application

of,   clearly   established     Federal       law,    as    determined      by    the

Supreme    Court   of   the   United    States;      or    (2)     resulted      in   a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court




                                       -3-
proceeding."     28 U.S.C. § 2254(d).      Carrying out this directive

requires a two-step analysis:

           First, the habeas court asks whether the
           Supreme Court has prescribed a rule that
           governs the petitioner's claim. If so, the
           habeas court gauges whether the state court
           decision is 'contrary to' the governing
           rule. In the absence of a governing rule,
           the "contrary to" clause drops from the
           equation and the habeas court takes the
           second step.    At this stage, the habeas
           court determines whether the state court's
           use of (or failure to use) existing law in
           deciding the petitioner's claim involved an
           "unreasonable application" of Supreme Court
           precedent.

O'Brien v.      Dubois, 145 F.3d 16, 24 (1st Cir. 1998); accord

Williams   v.    Taylor,   529   U.S.   362,   408   (2000);   Williams   v.

Matesanz, 230 F.3d 421, 424 (1st Cir. 2000).

           This standard informs the showing that is necessary to

obtain a COA.

           The AEDPA predicates the very issuance of a
           COA — without which "an appeal may not be
           taken to the court of appeals," 28 U.S.C. §
           2253(c)(1) — on whether an "applicant has
           made a substantial showing of the denial of
           a   constitutional  right."     Id.  at   §
           2253(c)(2).   A habeas petitioner who fails
           to demonstrate that his claims satisfy the
           substantial showing standard may not appeal
           the denial of habeas corpus at all.

Bui v. DiPaolo, 170 F.3d 232, 236 (1st Cir. 1999).               Moreover,

"the necessity for a substantial showing extends independently




                                    -4-
to each and every issue raised by a habeas petitioner."                       Id.

The petitioner fails to make the requisite showing.

                We need not tarry.       The facts of the underlying case

have been chronicled in several rescripts, e.g., Huenefeld, 62

F. Supp. 2d at 212-18, and we need not rehearse them here.                      A

careful review of the relevant state court decisions reveals

them to be fully consistent with Supreme Court case law.                      The

only conceivable question, then, is whether the state courts

unreasonably          applied    that   law.     The   petitioner    offers    no

convincing reason why we should answer that question in the

affirmative.          We allude briefly to his principal points.

                1.    The petitioner objects vociferously to an analogy

used       by   the   trial     judge   while   explaining   the    drawing    of

inferences, asserting that the instruction allowed the jury to

infer facts upon a mere possibility.1                   Having reviewed the


       1The parties agree that the challenged instruction reads:

       Suppose you are driving out the Concord Turnpike out
       to Arlington or Lexington early in the morning, and
       you see a guardrail has been completely broken
       through, and under the guardrail you see some tracks.
       They look like fresh tracks. It's reasonable to infer
       that an automobile went through the guardrail.     You
       may infer that we went through recently. If there are
       tire marks on the street just before it, you may infer
       that it was an automobile from their width and not a
       truck. You may, you may not. If there was not tire
       marks, you may infer that he fell asleep, didn't hit
       his brakes before he went over.     You may not infer
       that too. It's entirely up to you. You may say he

                                         -5-
instruction in light of the charge as a whole, Cupp v. Naughten,

414 U.S. 141, 146-47 (1973), we are satisfied that no reasonable

juror would have interpreted it as a license to indulge in

speculative inferences.         The trial judge's final statement —

that "the inferences you make must be based upon the facts that

you determine to be the truth in this trial" — renders this

conclusion unavoidable.     On this point, then, the petitioner has

not   made    a   substantial   showing   of   the   abridgement   of   a

constitutional right.2

             2.   The petitioner claims that the trial court erred

in requiring the parties to submit a joint stipulation as to the

testimony of the chemist who performed serological examinations

on relevant blood samples.         According to the petitioner, the

trial court should have insisted that the chemist testify in


      tried to avoid something, or he just went over. You
      can get into inferences — become very speculative, you
      can come to inferences that are very populous [sic],
      but the inferences you make must be based upon the
      facts that you determine to be the truth in this
      trial.
      2
     The parties also agree that the trial judge made a
subsequent reference to "imaginary doubt." That allusion, while
better left unsaid, does not change the decisional calculus. As
stated in an unpublished appellate rescript, this locution was
"merely an isolated phrase couched within four pages of an
otherwise proper instruction that adequately and repeatedly
emphasized the Commonwealth's burden to prove each and every
element of the offense beyond a reasonable doubt." Huenefeld,
No. 97-P-1059, slip op. at Add. 2.11 (Mass. App. Ct. Nov. 20,
1997) (unpublished).

                                   -6-
person.        The    state    courts      rejected       this    argument,       e.g.,

Huenefeld, 610 N.E.2d at 347, and so do we.

          Unlike Washington v. Texas, 388 U.S. 14 (1967), this

case does not involve the absolute exclusion of a witness's

testimony, but, rather, the trial court's exercise of its wide

discretion over the mode and manner of presentation of proof.

So   viewed,    there     is       no   substantial       showing      of   a   nascent

constitutional violation.

          3.         The petitioner calumnizes the trial judge for

allowing into evidence a pair of gray corduroy pants stained

with occult blood — pants that the petitioner was wearing at the

time of his arrest — and thereafter denying the petitioner's

motion to strike the exhibit.              See Huenefeld, 610 N.E.2d at 347

(discussing issue and concluding that any error was harmless).

Since it cannot plausibly be said that these rulings, whether

right or wrong as a matter of evidence, so infused the trial

with   unfairness       as    to    work   a     denial    of    due   process,     the

petitioner's constitutional rights are not implicated.                             See

Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir. 1987) (holding

that garden-variety errors of state law do not warrant federal

habeas relief).

          4.         The petitioner asserts that his conviction was

obtained through the use of false evidence.                     The prosecution, he


                                           -7-
says, culpably failed to correct false testimony, and the trial

court improperly admitted testimony lacking in veracity.3     See

Huenefeld, 610 N.E.2d at 345 (discussing this evidence).

         A criminal defendant has a constitutional right to a

fair trial, but not a perfect one.    United States v. Hasting,

461 U.S. 499, 506-07 (1983); Lutwak v. United States, 344 U.S.

604, 619 (1953).   The inconsistencies that the petitioner cites,

unaccompanied by any fact-specific proffer indicating that the

prosecution suborned perjury or knowingly purposed to introduce

false testimony, simply do not sink to the level that would be

needed for a substantial showing that a constitutional violation

had occurred.   See Napue v. Illinois, 360 U.S. 264, 269 (1959);

United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990);

United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).

         5.     The petitioner launches a volley of claims aimed

at allegedly offensive arguments made by the prosecutor.    It is

well-established that improper prosecutorial comments constitute

constitutional error only if those comments "so infected the



    3These assertions revolve around (1) testimony of Dr.
Katsas, a pathologist, who apparently testified, in seeming
contravention of his autopsy report, that the decedent's blood
tested negative for cocaine; and (2) testimony incorrectly
identifying the precise origin of a syringe that tested positive
for cocaine (the syringe had been found in a trash barrel
outside the petitioner's house, not — as a police witness said
— on a nightstand in the petitioner's bedroom).

                               -8-
trial with unfairness as to make the resulting conviction a

denial of due process."                  Donnelly v. DeChristoforo, 416 U.S.

637,   643    (1974).          No    useful       purpose      would    be    served     by

enumerating the statements that the appellant decries.                                   It

suffices to say that, evaluating them within the context of the

case, see United States v. Young, 470 U.S. 1, 11-12 (1985), we

discern no substantial showing of constitutional error.

             6.    The    petitioner       asseverates         that     he   was   denied

effective assistance of counsel during both trial and appeal.

In Strickland v. Washington, 466 U.S. 688 (1984), the Supreme

Court elucidated a two-part test to guide courts in determining

ineffective assistance claims:                the petitioner must demonstrate

both that his lawyer's performance was deficient, and that this

deficient performance prejudiced the defense.                          Id. at 687.

             As to the efforts of trial counsel, the Appeals Court

found no "showing of how the [petitioner] was prejudiced."

Huenefeld,        610    N.E.2d     at    345.      In   his    habeas       papers,    the

petitioner        has    not   filled       that     void.       Since       it    is   the

petitioner's        burden     to    "show        that   there    is     a    reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different," Strickland,

466 U.S. at 694, this omission defeats his claim.




                                            -9-
          The petitioner's allegation that he was deprived of

effective appellate counsel fares no better.             Specifically, the

petitioner charges that his appellate lawyer failed to meet with

him prior to filing his brief, or to provide him access to some

documents, or to raise certain claims on appeal. 4                   But the

petitioner has neither established a causal link between these

charges and the affirmance of his conviction nor identified any

omitted argument that might conceivably have turned the tide.

Accordingly,     the   petitioner      has   fallen     well    short   of   a

substantial    showing   of    the   abridgement   of    a     constitutional

right.   See Jones v. Barnes, 463 U.S. 745, 751-54 (1983).

          7.    The petitioner makes an overarching argument that

the district court erred in dismissing his habeas application

without first procuring and pondering a complete transcript of

his trial.     The district court acted, however, under Rule 4 of

the Rules Governing Section 2254 Cases — a rule that authorizes

dismissal "if it plainly appears from the face of the petition

and any exhibits attached thereto that the petitioner is not

entitled to relief."          Where, as here, a petitioner's claims


    4 The petitioner also suggests that his appellate attorney
deprived him of the opportunity to file a so-called Moffett
brief. See Commonwealth v. Moffett, 418 N.E.2d 585, 589 (Mass.
1981). Moffett articulates a rule of state law, and failure to
comply with that rule does not raise a claim cognizable on
federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67
(1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

                                     -10-
render such a disposition appropriate, a federal habeas court

need not examine the complete trial transcript.

              A case directly on point is Love v. Butler, 952 F.2d

10 (1st Cir. 1991) (per curiam).                There, the district court had

before       it   the    parties'     briefs,    the    relevant    state   court

decisions, a copy of an unsuccessful application for further

appellate review, and certain grand jury minutes.                     Id. at 15.

We    held    that      "each   of    petitioner's      arguments    was   readily

susceptible to resolution without resort to the transcript."

Id.      Accordingly, we affirmed the district court's summary

dismissal of the habeas application.                 Id.

              The case at bar is on all fours with Love.               Here, the

district court had before it much the same type of documentation

as mentioned in Love.            Moreover, the parties were in apparent

agreement as to the critical trial events (e.g., the contents of

the jury instructions, the stipulation proffered in lieu of the

chemist's testimony, the inconsistencies in Dr. Katsas's account

and    those      pertaining     to    the   origins     of   the   syringe,   the

prosecutor's         closing    comments).        The   petitioner    failed   to

advance any argument that, for proper resolution, required the

district court to go beyond these materials and refer to the

unexpurgated trial transcript.                  Under the circumstances, we

reject this assignment of error.


                                         -11-
         We   need   go   no   further. 5     To   the   extent   that   the

petitioner raises other claims, they are baseless and may be

dismissed without further comment.          The short of it is that the

petitioner has not made a "substantial showing of the denial of

a constitutional right."       28 U.S.C. § 2253(c)(2).      Consequently,

we deny his application for a COA.

         The petitioner's application for a COA is denied and

this proceeding is terminated.




    5The petitioner also has moved for the appointment of
counsel. We deny the motion. See Dellenbach v. Hanks, 76 F.3d
820, 823 (7th Cir. 1996) (stating that "an indigent civil
litigant in federal court has no constitutional or statutory
right to the appointment of counsel, even if he is challenging
a criminal conviction as by a proceeding . . . for habeas
corpus").

                                   -12-
