
USCA1 Opinion

	




          September 23, 1996    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1059                                   ALFRED K. BROWN,                                     Petitioner,                                          v.                              PAUL MURPHY, SUPT., OCCC,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Alfred K. Brown on brief pro se.            _______________            Scott  Harshbarger,   Attorney  General,  and   Gail  M.  McKenna,            __________________                              _________________        Assistant Attorney General, Criminal Bureau, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Petitioner  Alfred K.  Brown appeals  the                 ___________            denial by the district court of his motion for habeas relief,            pursuant to 28 U.S.C.   2254.  We affirm.1                                                     1                 Brown  first  claims that  he  received constitutionally            ineffective  assistance of  counsel  in the  state trial  and            appellate courts.   The  state contends that  the ineffective            assistance  claim is  insulated  from  federal habeas  review            because  the  state court  found  it  procedurally defaulted.            Brown  responds in  turn that  the default should  be excused            because it was caused  by ineffective assistance of appellate            counsel.   The claim  of ineffective assistance  of appellate            counsel  is  based  solely  on  counsel's  failure  to  argue            ineffective assistance of trial  counsel.  Since the question            of  whether cause  has been  shown is  inextricably entangled            with  the merits, we find it easier to address directly those            merits.                 We  find the  claim of  ineffective assistance  of trial            counsel to be without foundation, essentially for the reasons            given by the district court.  We add only the following.                 Insofar  as Brown's  claim  rests  on counsel's  alleged            failure to  investigate adequately  the defense  of insanity,                                            ____________________               1The  "Antiterrorism  and Effective  Death Penalty  Act of               1            1996"  (Pub. L. 104-32) was signed into law while this appeal            was pending.  We need not determine to  what extent the Act's            amendments  govern  this  case  since, even  under  the  more            expansive  scope of  review prior  to the  Act, Brown  is not            entitled to relief.                                         -2-            the  record  indicates  no  such  deficiency.    We  note  in            particular that the information provided in the affidavits of            Drs. Yudowitz  and Profit  is essentially cumulative  of what            was presented at trial.   Hence, the failure to  present such            information does  not  constitute ineffective  assistance  of            counsel.   See, e.g., United States v. Jackson, 935 F.2d 832,                       ___  ____  _____________    _______            846  (7th Cir. 1991) (counsel  not ineffective for failing to            present cumulative evidence).                   Brown may be correct  in his claim that the  trial judge            erred in informing the jury as to the sentencing consequences            of the verdicts of first and second degree murder, other than            that  of not guilty.  See Commonwealth v. Ferreira, 373 Mass.                                  ___ ____________    ________            116, 123-38, 364 N.E.2d 1264, 1269-72 (1977) (error to charge            jury that verdict of  guilty of murder in first  degree would            carry sentence of  life imprisonment without parole,  whereas            verdict of guilty of murder in second degree would carry same            sentence with  eligibility for parole  after fifteen  years).            However, it  would have been  reasonable for counsel  to have            made a "deliberate tactical  decision" not to object  to that            charge based on the reasoning "that informing the jury of the            sentencing   outcomes   associated  with   possible  verdicts            improved his client's chances of avoiding a verdict of guilty            of murder in the first degree."  Commonwealth v. Burnett, 371                                             ____________    _______            Mass.  13, 16-17,  353 N.E.2d  665, 667  (1976).   A decision            consistent with a reasonable  trial strategy cannot support a                                         -3-            claim of  ineffective assistance  of counsel.   Strickland v.                                                            __________            Washington,  466 U.S. 668, 689 (1984); Lema v. United States,            __________                             ____    _____________            987 F.2d 48, 51 (1st Cir. 1993).                 Finally, we agree  with finding of  the state trial  and            appellate  courts that  the  record  indicates  that  Brown's            statements to the  police on  the night of  the murders  were            voluntary.                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                         -4-
