                 Not for Publication in West’s Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 07-1269

                             ERIC WILLIAMS,
                         Petitioner-Appellant,

                                      v.

                        JOHN R. MARSHALL, JR.,
                         Respondent-Appellee.



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

               [Hon. William G. Young, District Judge]



                                   Before

                Torruella and Boudin, Circuit Judges,

                   and Schwarzer,* District Judge.



     Anne E. Gowen for appellant.
     Maura D. McLaughlin, Assistant Attorney General, Criminal
Bureau with whom, Martha Coakley, Attorney General, was on brief
for appellees.


                            October 29, 2008




     *
     Of the      Northern     District      of    California,     sitting   by
designation.
            Schwarzer, District Judge.              Eric Williams appeals the

denial of his petition for habeas corpus.                        In his petition,

Williams claimed that his constitutionally guaranteed due process

rights   were   violated     by    the    admission    of    a   letter    allegedly

authored by him, and by the prosecutor’s use and interpretation of

portions of the letter.           The district court denied his petition.

Even applying a standard more favorable to the petitioner than the

one adopted by the district court, we agree that admission of the

letter was proper and affirm the judgment below.

                    I.    Factual and Procedural History

            We detail only those facts necessary to resolve Williams’

claim.   Pursuant to 28 U.S.C. § 2254(e)(1), we presume the factual

findings of the state court to be correct.

            Williams was charged in connection with a series of

incidents    that    occurred       on    August     9,     1999,     in   Brockton,

Massachusetts.       That    evening,      a     fistfight    broke    out   between

Williams and several other individuals. He was accused of punching

Tiffany Clark in the face.         Later that evening, there was a second

fight, in which Williams was accused of striking Linda Burrell

twice, one time with a gun.         Subsequently, a man who police alleged

was Williams fired a gun into the ground near Burrell and her

friend, Daniel Silva.         Clark did not testify at trial about the

first incident.          Burrell positively identified Williams as her

attacker in the second incident, but she could not clearly identify


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Williams as the shooter in the third incident.                Other prosecution

witnesses who identified Williams as the shooter were problematic,

one suffering from limited perception of the incident and the other

suffering from credibility issues.

            Williams was convicted of four of the six assault and

battery and weapons related charges in Massachusetts Superior Court

for Plymouth County.           One of the prosecution’s key pieces of

evidence was a letter allegedly authored by Williams while he was

incarcerated awaiting trial.           The letter was addressed to a friend

of Williams’, but was returned to the correctional facility because

the   addressee     was   unknown.       In    compliance      with   established

policies, jail authorities treated the letter as incoming mail, and

opened it because of safety concerns raised by gang symbols on the

outside of the envelope.

            The letter was written largely in slang and contained

numerous    references    to    drug    use    and   gang    membership.        More

importantly, it asked the recipient to intimidate Tanya Ross, a

witness expected to testify for the prosecution, and to try to

influence a co-defendant not to accept a plea bargain.                     Defense

counsel moved to exclude the letter.            The trial court admitted it,

reasoning    that    although    the     letter      was    prejudicial    to   the

defendant, it was also highly probative of consciousness of guilt.

The judge ordered that portions of the letter relating to gang

membership and some mentions of drug use be redacted.


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           The redacted letter was read to the jury twice during the

course of the trial.    The prosecutor displayed an enlargement of

the two-page letter during his closing argument and referenced

passages several times.      Additionally, the prosecutor suggested

that the jury should interpret a phrase in the letter – “blaze for

me” – to mean “shoot for me”.

           The jury convicted Williams of assault and battery and

assault and battery with a dangerous weapon on Burrell, unlawful

possession of a firearm, and unlawful discharge of a firearm.        He

was acquitted of the two other charges, assault and battery on

Clark and assault with intent to murder Silva.       Williams’ motion

for a new trial was denied, and he was sentenced to nine to ten

years in prison.

           The   Massachusetts   Appeals   Court   affirmed   Williams’

conviction and the denial of his motion for new trial.        He filed a

motion for further appellate review with the Massachusetts Supreme

Judicial Court, which was denied without opinion.       Williams then

filed a petition for habeas corpus in the district court, claiming

that the admission of the letter was so prejudicial that it

violated his constitutionally guaranteed due process rights.        The

petition was denied, and this timely appeal followed.

                       II.   Standard of Review

           We review the district court’s denial of habeas corpus de

novo.   Norton v. Spencer, 351 F.3d 1, 4 (1st Cir. 2003).


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           The standard of review applied by federal courts in a

habeas    corpus    case    depends     on     whether    the    petitioner’s

constitutional claim was adjudicated by the state court. Under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.

§ 2254, if the state court decided Williams’ constitutional claim,

he is entitled to habeas relief only if the proceeding 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

proceedings.” 28 U.S.C. §      2254(d).

           If, however, the petitioner’s federal constitutional

claim was raised in the state courts but remained unresolved, we

apply a de novo standard.       Lynch v. Ficco, 438 F.3d 35, 44 (1st

Cir. 2006).     Under this standard, Williams’ petition should be

granted   if   he   can   demonstrate   that    the   erroneously   admitted

evidence so infused the proceeding with inflammatory prejudice that

it rendered a fair trial impossible.         Petrillo v. O’Neil, 428 F.3d

41, 44 n.2 (1st. Cir. 2005).

           The Commonwealth contends that Williams’ federal claim

was   effectively    adjudicated   by    the    state    court   because   the

Massachusetts Appeals Court applied prejudicial error analysis, a

standard that was at least as favorable to Williams as the federal


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standard.      McCambridge   v.    Hall,    303    F.3d   24,   35   (1st   Cir.

2002)(holding that if a state case explicitly states that the state

standard is more favorable to the defendant than the federal

standard, the federal claim is considered adjudicated below when

the state standard is applied).

            The Appeals Court found that admission of the letter and

the   prosecutor’s    statements    about    the    letter   was     not   error.

Commonwealth v. Williams, No. 02-P-640, 2005 WL 955049, at *2-3

(Mass.App.Ct. April 26, 2005).        The Commonwealth argues that the

court     applied    prejudicial    error     analysis,      which     examines

erroneously admitted evidence to be “sure that the error did not

influence the jury, or had but very slight effect.”                Commonwealth

v. Alphas, 430 Mass. 8, 13-14 n.7 (1999),(quoting Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994)).             Finding that admission of

the letter was not error, the court did not proceed to the second

prong of the analysis to determine if the error influenced the

jury.

            The petitioner contends that the state courts did not

address his federal claim, and that he is entitled to de novo

review.    He argues that the court did not mention his federal due

process claim in its analysis of the admissibility of the letter,

and that the court’s statements summarily rejecting the alleged




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evidentiary error did not adequately address the issue.1

          The Appeals Court’s discussion of the admission of the

letter and the prosecutor’s statements about it are indeed brief

and do not explicitly discuss the petitioner’s federal claim.

Additionally, it is unclear what standard the court applied in

evaluating Williams’ claims. In finding that the admission of the

letter was not error, however, the court likely applied a standard

more favorable than the federal standard.     Nonetheless, because

petitioner’s claim fails even under the more favorable de novo

standard articulated in Petrillo, we apply this standard without

deciding whether de novo review is in fact required.   428 F.3d at

44 n.2.

                         III. Discussion

          In Petrillo, we held that for an evidentiary error to

deprive a defendant of his constitutionally guaranteed due process

rights and provide a basis for habeas relief, the “error must so

infuse the trial with inflammatory prejudice that it renders a fair


     1
      In discussing the admission of the letter, the Appeals Court
stated:
     Further, we see no merit to the defendant’s claim that
     the letter was inadmissible in that its contents
     portrayed him in a poor light, suggested an additional
     uncharged crime, and were unduly exacerbated by the
     prosecutor’s use of a blow up copy of the letter during
     closing argument.    See and contrast Commonwealth v.
     Hoppin, 387 Mass. 25, 30, 438 N.E.2d 820 (1982). See
     also Commonwealth v. Helfant, 398 Mass. 214, 224-225, 496
     N.E.2d 433 (1986); Commonwealth v. Babbitt, 430 Mass.
     700, 704 (2000).
  Williams, 2005 WL 955049, at *2-3.

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trial impossible.”    428 F.3d at 44 n.2.     In this case, unlike in

Petrillo, the Appeals Court found that the admission of the letter

as well as the prosecutor’s use of an enlargement of the letter and

his comments about it did not constitute error.       Williams, 2005 WL

955049, at *2-3.   As the district court notes, the trial court made

a careful and detailed ruling in admitting the letter.           The court

reasoned that although prejudice to Williams was necessarily a

byproduct of admission, the high probative value of the letter

outweighed any prejudice.      Additionally, the trial court took

numerous steps to decrease potential prejudice to Williams.           The

court redacted the letter to remove several gang and drug use

references.    The   court   also   offered   to   provide   a   limiting

instruction to the jury on consciousness of guilt, which Williams’

trial counsel declined, viewing it as a “double edged sword.”

Additionally, as the Appeals Court notes, even if the prosecutor’s

brief statement interpreting the phrase “blaze for me” to mean

“shoot for me” in the letter was incorrect, the judge instructed

the jury that closing arguments are not evidence in the case.

Williams, 2005 WL 955049, at *2.    Therefore, because the admission

of the letter was not error, petitioner necessarily fails to meet

the high bar set in Petrillo to demonstrate that an error amounted

to a violation of constitutionally protected due process rights.

          Even if we were to assume that the admission and use of

the letter was error, however, Williams’ habeas petition would


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still fail.    As discussed above, Williams was charged with six

counts of assault and battery and weapons related charges against

three different individuals.         He was convicted of the assault on

Linda Burrell, where Burrell was able to provide a clear positive

identification, and acquitted for the alleged assault on Clark and

Silva, in which either no identification was provided, or the

identification was less reliable.            This careful evaluation of the

evidence supporting each of the charges indicates that the jury

acted in a rational and deliberative manner, and was not so

inflamed by prejudice that they were not able to fulfill their

neutral fact finding role.      Therefore, even assuming that Williams

is entitled to de novo review, and that the admission and use of

the letter was error, he has still not demonstrated that it was an

error of constitutional magnitude that deprived him of due process

and entitles him to habeas relief.        Fortini v. Murphy, 257 F.3d 39,

48 (1st Cir. 2001) (“the Supreme Court adopted a different test for

habeas more favorable to the prosecution, namely, that the error

(constitutional     or   not)   is   harmless     if   it   did    not    have   a

substantial   and   injurious    effect      or   influence   on    the   jury’s

verdict.”).

AFFIRMED.




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