          United States Court of Appeals
                     For the First Circuit
 
 



No. 14-2050

                      JULIAN CASTLE LOGAN,

                     Petitioner, Appellant,

                               v.

                           BRUCE GELB,

                      Respondent, Appellee.
 

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

          [Hon. William G. Young, U.S. District Judge]
 

                             Before

                       Lynch, Chief Judge,
              Torruella and Barron, Circuit Judges.
                                 

     Dana A. Curhan on brief for appellant.
     Ryan E. Ferch, Assistant Attorney General, Criminal Bureau,
and Maura Healey, Attorney General of Massachusetts, on brief for
appellee.
                                 

                                 

                          June 15, 2105
                                 

                                 
           Per curiam.    Julian Castle Logan (formerly known as Joao

Pedro Barbosa Jr.) was convicted in 2007 in Massachusetts state

court of living off or sharing the earnings of a minor prostitute

in violation of Massachusetts law.         After twice being rebuffed by

the Massachusetts Appeals Court, see Commonwealth v. Barbosa, No.

08-P-1620, 2010 WL 680349 (Mass. App. Ct. Mar. 1, 2010) (Barbosa

I); Commonwealth v. Barbosa, No. 12-P-37, 2013 WL 1103912 (Mass.

App. Ct. Mar. 19, 2013) (Barbosa II), Logan filed a petition for

a writ of habeas corpus in federal court in 2013 seeking to

invalidate his conviction on a number of grounds.              The district

court   denied   the   petition,   concluding    that   none    of   Logan's

arguments satisfied the exacting standards that govern habeas

review of a state court conviction.        Logan v. Gelb, 52 F. Supp. 3d

122 (D. Mass. 2014).     We affirm.

                                    I.

           On federal habeas review, the findings of fact of a state

court "shall be presumed to be correct."        28 U.S.C. § 2254(e)(1);

see Sumner v. Mata, 455 U.S. 591, 592-93 (1982) (per curiam).            We

take the facts as presented by the Massachusetts Appeals Court

which affirmed Logan's conviction, Barbosa I, 2010 WL 680349, at

*1-2, supplemented with other record facts consistent with the




                                   - 2 -
state court's findings.        Scoggins v. Hall, 765 F.3d 53, 54 (1st

Cir. 2014).

           On the evening of February 23, 2004, Lawrence Hall, a

detective with the Everett police department, was near Beecham

Street,   an   area    in   Everett   known   for   prostitution   activity.

Detective Hall witnessed two young women walking down the road,

smiling and waving at passing vehicles. He later saw the two young

women enter the back seat of a gray Saab convertible that was

parked in a nearby lot.

           Detective Hall returned to the Beecham Street area the

following night, and again observed one of the two young women --

who has been referred to as "Harriet" -- smiling and waving at

passing vehicles.        Detective Hall saw Harriet get into a large

delivery truck.       Another Everett police detective, Richard Connor,

observed Harriet perform oral sex on the truck's driver while the

truck was parked across the Everett town line in Chelsea.

           After Harriet left the truck, she talked briefly on a

walkie-talkie.        A white sedan then arrived, which she entered.

Harriet left the white sedan approximately ten minutes later.           She

then walked over to the same gray Saab convertible from the

previous night, which was parked in the same lot as the night

before, and got in the car.

                                      - 3 -
          Once the Saab pulled out of the lot, Detective Hall

radioed for a police cruiser to stop the car.        The driver of the

Saab, Logan (then known as Barbosa), was promptly arrested.      Logan

had $1,459 in cash on him at the time. Harriet, who was a passenger

in the Saab and who was also arrested, had $32 on her.

          The Commonwealth charged Logan with one count of living

off or sharing the earnings of a minor prostitute in violation of

Mass. Gen. Laws ch. 272, § 4B.    His first trial, from August 20 to

22, 2007, ended in a mistrial due to a hung jury.          His second

trial, from September 3 to 6, 2007, resulted in a conviction.

          At the second trial, the Commonwealth relied heavily on

the testimony of Detective Hall.     Detective Hall testified about

his decade-long experience on the police force, during which time

he had made more than sixty prostitution arrests.        He also noted

that he had spent the previous half-decade working mostly on

narcotics and prostitution cases.        And, after being qualified as

an expert, Detective Hall testified that the average price for a

prostitute's services in the area at the time of Logan's arrest

was $40 to $60 for oral sex and upwards of $100 for vaginal

intercourse.

          Although Harriet did not testify, a social worker, Rosa

Andrade, provided testimony regarding Harriet's age.           Andrade

                                 - 4 -
testified that she had worked with Harriet for two years after

Harriet's arrest, and that she had helped Harriet with placements,

school, and other services.                                    Andrade explained that she works with

adolescents and stated that Harriet was an adolescent.                                      Andrade

testified that Harriet's birthday was November 21, 1988, and that

she was fifteen years old on February 24, 2004, when she was

observed by Detectives Hall and Connor.                                     Defense counsel made no

objection to this testimony on hearsay grounds or otherwise.

Andrade also testified on cross-examination that she had never

seen Harriet's birth certificate and that Harriet was born outside

of the United States.

                             Before the close of the defense's case, Logan moved for

a required finding of not guilty on account of insufficient

evidence of Harriet's minority, an essential element under Mass.

Gen. Laws ch. 272, § 4B.                                       The state trial judge, though noting

that it was a "close call," denied the motion.                                       After the jury

returned a guilty verdict, Logan filed a motion for judgment

notwithstanding the verdict, which was also denied.                                    On September

20, 2007, Logan was sentenced to five to eight years in prison.1



                                                            
              1
       Logan is currently serving that sentence at the Souza-
Baranowski Correctional Center.

                                                                 - 5 -
          Logan appealed and argued, as is relevant here, that

there was insufficient evidence to support his conviction.         The

Massachusetts Appeals Court affirmed his conviction on March 1,

2010. Barbosa I, 2010 WL 680349, at *1. The Massachusetts Supreme

Judicial Court ("SJC") denied Logan's application for leave to

obtain   further   appellate   review    on   September    10,   2010.

Commonwealth v. Barbosa, 934 N.E.2d 824 (Mass. 2010) (table).

          Logan then moved for a new trial in the Massachusetts

Superior Court on November 11, 2011.      The Massachusetts Superior

Court denied Logan's motion, and the Massachusetts Appeals Court

affirmed this denial on March 19, 2013.         Barbosa II, 2013 WL

1103912, at *1. The SJC again denied Logan's application for leave

to obtain further appellate review.     Commonwealth v. Barbosa, 989

N.E.2d 898 (Mass. 2013) (table).

          Logan next filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court

for the District of Massachusetts on June 26, 2013.       On September

25, 2014, the district court found against Logan on every claim,

and ordered the petition dismissed.     Logan, 52 F. Supp. 3d at 131-

38.   The district court did, however, grant a certificate of

appealability as to "each of the issues discussed" in its decision.

Now on appeal, Logan presses some but not all of the arguments he

                               - 6 -
made to the district court; he also attempts to raise at least one

new claim.

                                                                    II.

                             28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), sets the standards

by which we review collateral attacks of state court convictions.2

Scoggins, 765 F.3d at 57.                                        Habeas relief may be granted only if

the state court's adjudication of the merits of a petitioner's

legal claim (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," 28 U.S.C. § 2254(d)(1); 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 proceeding,"

id. § 2254(d)(2).                                       See also Scoggins, 765 F.3d at 57.

                             Further, we ordinarily may not second guess a state

court's rejection of a claim on the basis of an independent and


                                                            
              2
       Congress enacted AEDPA "to confirm that state courts are
the principal forum for asserting constitutional challenges to
state convictions."    Harrington v. Richter, 562 U.S. 86, 103
(2011). AEDPA thus prevents federal courts from overturning state
court convictions except where the state proceedings suffered from
an "extreme malfunction[]."     See id. at 102-03 (citation and
internal quotation marks omitted).

                                                                   - 7 -
adequate state procedural rule.                                             See Coleman v. Thompson, 501 U.S.

722, 750 (1991).                                          And our review is precluded where a habeas

petitioner has failed to exhaust a federal claim in the state

courts.                   See Rose v. Lundy, 455 U.S. 509, 515-16 (1982).

A.                           Proof of Harriet's Age

                             Logan argues that the Commonwealth "improperly proved a

key element of the charged offense" -- Harriet's minority --

"solely                  through                   the         use   of   hearsay."        In   this   respect,   we

understand Logan to make two arguments, neither of which is

meritorious.

                             Logan               first          contends     that   this   reliance     on   hearsay

somehow violated Due Process.3                                               Logan never made a due process

argument in any of his state court proceedings; it is thus not

properly exhausted under AEDPA.                                               See 28 U.S.C. § 2254(b)(1)(A).

Logan also failed to include this argument in his habeas petition;

it is thus waived as well.                                            See Companonio v. O'Brien, 672 F.3d

101, 112 n.10 (1st Cir. 2012).                                             Logan's argument that he received



                                                            
              3
       To the extent that Logan has merely dressed his sufficiency
argument in due process garb, we remain unpersuaded. The Appeals
Court's decision on the sufficiency of the evidence of Harriet's
age was neither contrary to clearly established Supreme Court case
law nor based on an unreasonable determination of the facts. See
28 U.S.C. § 2254(d).

                                                                          - 8 -
ineffective assistance of counsel does not save his waived and

unexhausted due process claim in this case.

                             Instead,                          we    understand     Logan     to       be     raising   an

independent claim that his counsel was ineffective for failing to

object to Andrade's testimony regarding Harriet's date of birth on

hearsay grounds.                                     Logan did not make this argument explicitly on

direct appeal, but did in his later motion for a new trial.                                                              On

appeal                from             the           denial           of    his   motion    for    a   new    trial,    the

Massachusetts                              Appeals                  Court   concluded      that   it    had    implicitly

"considered and rejected" this argument in his direct appeal.

Barbosa II, 2013 WL 1103912, at *2.                                                     Whether or not the state

courts actually dealt with the claim and so are entitled to

deference, this claim fails even on de novo review.                                                           See Fortini

v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (applying "de novo"

review to a federal claim that "was never addressed by the state

courts").4



                                                            
              4
       This form of de novo review is not wholly equivalent to the
de novo standard that obtains on direct appeal because "the claims
of habeas petitioners, even on de novo review under Fortini,
continue to be limited by the principles laid out in Teague v.
Lane, 489 U.S. 288 (1989), and its progeny, which generally bar
claims that require the application or announcement of 'new rules'
of law." Kater v. Maloney, 459 F.3d 56, 58-59 (1st Cir. 2006).
But that distinction is immaterial for present purposes.

                                                                            - 9 -
             Ineffective-assistance      claims     are    governed     by     the

Supreme Court's decision in Strickland v. Washington, 466 U.S. 668

(1984), under which the defendant must prove two elements. "First,

the defendant must show that counsel's performance was deficient,"

Strickland, 466 U.S. at 687, which requires showing that counsel's

performance was not only substandard, but also "deficient in some

way   sufficiently         substantial       to     deny       him    effective

representation," Epsom v. Hall, 330 F.3d 49, 53 (1st Cir. 2003).

"Second, the defendant must show that the deficient performance

prejudiced    the   defense,"    Strickland,      466   U.S.   at    687,    which

requires proof that "there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different," id. at 694.

             Logan's ineffective-assistance claim most clearly fails

on the prejudice prong.         Regarding Harriet's minority, Andrade's

testimony    was    not   limited   to   Harriet's      date   of    birth    and,

therefore, her age on the date of the incidents in question.

Andrade testified that she was an "adolescent social worker" and

that Harriet was "an adolescent assigned to [her] caseload."

Andrade further testified that she had helped Harriet with school

as part of her role as an adolescent social worker.                     And, in

addition, the Commonwealth showed the jury a photograph of Harriet

                                    - 10 -
that was taken roughly one year before Logan's arrest, which Logan

does not argue depicted a girl other than a minor-aged one.                    Even

if Andrade's testimony regarding Harriet's date of birth had been

excluded as a result of a successful objection by defense counsel

-- an issue we need not resolve here -- Logan cannot show a

reasonable    probability     that   a    hearsay       objection   to   Andrade's

testimony about Harriet's date of birth would have changed the

outcome of the trial.

B.           Sufficiency of the Evidence

             Logan next contends that the Commonwealth introduced

insufficient       evidence    to    prove       that     Harriet    engaged     in

prostitution or that she transferred any money to him.                       Logan

challenged the sufficiency of the evidence on direct appeal.                    The

Massachusetts Appeals Court -- applying its familiar sufficiency

standard under Commonwealth v. Latimore, 393 N.E.2d 370 (Mass.

1979) -- rejected this claim.            Barbosa I, 2010 WL 680349, at *1-

2.

             We have held that the Latimore test that the Appeals

Court applied is functionally identical to the Jackson v. Virginia,

443   U.S.   307   (1979),    standard     the    Supreme    Court    applies    in

sufficiency    challenges,     as    Logan    concedes.       See    Leftwich    v.

Maloney, 532 F.3d 20, 23-24 (1st Cir. 2008).                        The operative

                                     - 11 -
question for determining sufficiency of the evidence is whether,

"'after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.'"

Latimore, 393 N.E.2d at 374 (quoting Jackson, 443 U.S. at 319).

Under § 2254(d), Logan can prevail on this claim only if the

Appeals Court unreasonably applied this standard.    It did not.

           There was more than enough evidence to prove that Harriet

was engaged in prostitution and that Logan knew that fact.   Police

detectives observed Harriet and another young woman walking down

a street in an area known to attract prostitution activity in a

manner consistent with prostitution on the night of February 23,

2004.   One of the detectives observed Harriet perform oral sex on

a man in a parked truck on February 24.    Harriet spoke briefly on

a walkie-talkie after leaving the truck and before entering another

car for approximately ten minutes, and Logan had a walkie-talkie

on him when he was arrested, at which time Harriet was in his

vehicle.

           Logan argues that, even if Harriet was involved in

prostitution, he could have been a john rather than a pimp.        In

support of this argument, he notes that his zipper was down when

he was pulled over.   But this evidence does not mean that the state

                               - 12 -
court unreasonably applied the facts to the law on this element.

"[W]hen   the    record    is   fairly   susceptible    of    two   competing

scenarios, the choice between those scenarios ordinarily is for

the jury."      Morgan v. Dickhaut, 677 F.3d 39, 48 (1st Cir. 2012)

(citation and internal quotation marks omitted). Logan had a large

amount of cash on him, a walkie-talkie (like Harriet), and was

present on Beecham Street on both nights.           This evidence allowed

the jury to conclude that he was not merely Harriet's customer.

The state court did not unreasonably apply the law in supporting

the jury's choice of one view over the other.

           The conclusion that Harriet transferred money to Logan

was also reasonable.       Not only did the detectives observe Harriet

and her companion enter Logan's car on February 23, Harriet was

also a passenger in Logan's car when Logan was arrested the

following night.     Upon being arrested in the gray Saab, Logan had

$1,459 in cash on him, while Harriet had $32 in cash on her --

less than the $40 to $60 that Detective Hall testified was the

average rate for oral sex from a prostitute in the area.              See id.

at 47 ("[A] conjecture consistent with the evidence becomes less

and less a conjecture, and moves gradually toward proof, as

alternative     innocent   explanations     are   discarded   or    made   less

likely." (citation and internal quotation marks omitted)).

                                   - 13 -
C.                           Detective Hall's Testimony

                             Logan's                   final     arguments    center   on   the     testimony   of

Detective Hall.                                   According to Logan, by testifying as an "expert"

on the pimp-prostitute relationship and the local prostitution

market,                   Detective                       Hall   impermissibly    based     his    testimony    on

hearsay by "recounting his conversations with . . . unidentified

prostitutes."                                    Logan         contends   that   admitting        this   testimony

amounted                     to         a       "flagrant[]         violat[ion]"       of   his    confrontation

rights.

                             Logan's final claim falters right out of the gate; he

concedes that these arguments were not raised on direct appeal.5

That concession is fatal to his claim.                                            Procedural default -- an

adequate and independent state law rule -- bars federal habeas

relief so long as it is both firmly established and regularly

followed.                        See Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir.

2010).                  Massachusetts "regularly enforces the rule that a claim


                                                            
              5
       This argument was first made in Logan's motion for a new
trial. On review of the Superior Court's denial of that motion,
the Massachusetts Appeals Court recognized that no argument about
the hearsay basis of Detective Hall's expert opinion was timely
raised, and it reviewed such claims "to determine whether a
substantial risk of a miscarriage of justice was . . . created" as
a consequence of the alleged error. Barbosa II, 2013 WL 1103912,
at *1.   The Appeals Court held that the introduction of this
evidence did not work such miscarriage. Id. at *1-2.

                                                                     - 14 -
not raised is waived."    Gunter v. Maloney, 291 F.3d 74, 79 (1st

Cir. 2002).    Accordingly, we may only review this claim if Logan

establishes "cause and prejudice" with respect to the procedural

default, or "a fundamental miscarriage of justice."   See Horton v.

Allen, 370 F.3d 75, 81 & n.3 (1st Cir. 2004).       Logan makes no

credible argument on either front.

                                III.

            We affirm the district court's denial of Logan's habeas

petition.




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