                   Not for Publication in West's Federal Reporter
                  Citation Limited Pursuant to lst Cir. Loc. R. 32.3

             United States Court of Appeals
                           For the First Circuit

No. 03-1570

                                JOSEPH DECICCO,

                           Petitioner, Appellant,

                                         v.

              LUIS SPENCER, SUPERINTENDENT, MCI NORFOLK,

                           Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Joseph L. Tauro,           U.S. District Judge]


                                      Before

                           Selya, Circuit Judge,
                      Coffin, Senior Circuit Judge,
                       and Smith,* District Judge.



     Stephen Hrones, with whom Hrones & Garrity, was on brief for
appellant.
     Dean A. Mazzone, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellee.



                                March 24, 2004



     *
         Of the District of Rhode Island, sitting by designation.
          COFFIN, Senior Circuit Judge. Two courts – one state and

one federal – have concluded that the 1994 state trial that

resulted in petitioner Joseph DeCicco's conviction for second-

degree felony murder was significantly flawed.      Neither court,

however, felt that the errors warranted reversal of his conviction.

In this appeal from the district court's rejection of his petition

for habeas corpus relief, DeCicco again asserts that the jury's

finding of guilt may not stand.      We have carefully reviewed the

record and caselaw, but find no basis for changing the outcome.

Because petitioner's claims have been fully addressed in the prior

decisions, we confine our discussion to the most salient points.

     The facts underlying this case are described in detail in the

opinion issued by the Massachusetts Appeals Court on direct appeal,

see Commonwealth v. DeCicco, 688 N.E.2d 1010, 1012-14 (Mass. App.

Ct. 1998),1 and the procedural history is fully recited in the

opinion of the magistrate judge from which this appeal arises.   It

thus suffices to provide only brief context. Petitioner and George

Madden, a neighbor and frequent companion, were both charged in

connection with the arson of a home adjacent to the apartment

building where they lived.    Both men had strained relationships

with the home owner, whose son died in the blaze from smoke



     1
       An abbreviated version of the facts was given in the
appellate court's decision affirming denial of petitioner's motion
for new trial.    See Commonwealth v. DeCicco,744 N.E.2d 95, 97
(Mass. App. Ct. 2001).

                               -2-
inhalation; the father had recently stopped providing them with

cocaine, and they had been trying to persuade him to resume.

Petitioner and Madden each contended the other had thrown the fire

bomb that triggered the blaze. The jury found petitioner guilty of

second-degree murder and several other crimes.

     Two issues are before us.       First, petitioner claims that the

prosecutor improperly bolstered the credibility of Madden, the

government's key witness, by telling the jury that he would be

tried later for first-degree murder and was not receiving any plea

benefits for his testimony.         As it turned out, Madden pleaded

guilty eleven months later to a reduced charge of manslaughter.

Petitioner argues that the jurors would have viewed Madden's

damaging testimony less favorably, and would not have convicted

petitioner, had the prosecutor not misled them.

     Second,    petitioner    asserts     that   his    trial   counsel   was

ineffective because he told the jury that petitioner would testify

but then did not call him to the stand.          Petitioner contends that

this failure to follow through on a promise damaged counsel's

credibility with the jury and strengthened the government's version

of the facts by allowing Madden's testimony to remain unopposed.

     The courts that previously have ruled on these two issues

confronted two limitations on the scope of their review: the

jurisprudence   of   waiver   and   the    highly      deferential   standard




                                    -3-
applicable to habeas claims.      As we shall explain, those factors

likewise constrain our assessment.         We take each issue in turn.

     Bolstering Claim.        Petitioner first raised the issue of

Madden's plea agreement in a motion for new trial that he submitted

after the Massachusetts Appeals Court ruled against him on direct

appeal.    The trial court denied the motion.         In its subsequent

ruling, the Appeals Court indicated that the bolstering claim was

waived because it was not raised on direct appeal.        See 744 N.E.2d

at 97.    It applied the standard applicable to waived claims, see

id. (citing Commonwealth v. Amirault, 677 N.E.2d 652 (Mass. 1997)),

and found that there was no substantial risk that the result would

have been different without the asserted error,2 id. at 100.          On

habeas review, the district court applied long established case law

on procedural default and concluded that petitioner failed to show

cause for omitting the bolstering claim from earlier proceedings.

See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Burks v. Dubois,

55 F.3d 712, 716 (lst Cir. 1995). Consequently, the district court

considered   only   whether    his     conviction   was   a   fundamental

miscarriage of justice, and found that it was not.3


     2
       One judge on the panel dissented, stating: "In view of the
weakness of the government's case apart from Madden's testimony, I
believe that the misleading evidence concerning Madden's potential
motives for bias likely 'affected the judgment of the jury,'
requiring reversal." 744 N.E.2d at 101.
     3
       To demonstrate a fundamental miscarriage of justice, the
petitioner must establish that "'a constitutional violation has
probably resulted in the conviction of one who is actually

                                     -4-
     We agree with the district court's reasoning. Petitioner knew

before his direct appeal was argued about the change in Madden's

status,4 and it appears that Mass. R. App. P. 8(e) would have

allowed the    Commonwealth    Appeals   Court     to    admit   the    fact   of

Madden's plea agreement into evidence even though it was not in the

trial court record.5        See, e.g., Commonwealth v. Harrison, 712

N.E.2d 74, 75 n.1 (Mass. 1999) (the fact of defendant's guilty plea

to a federal charge was not part of the original record, but was

admitted by the Appeals Court on motion by the Commonwealth).

Although petitioner disputes the efficacy of the rule for this

purpose, we do not see why Madden's late-arising deal would not

qualify as a "material" fact that had been either omitted from, or

misstated in, the record.      Petitioner made no attempt to test the

rule. See Commonwealth v. Randolph, 780 N.E.2d 58, 64 (Mass. 2002)

("At its core, the waiver doctrine states that a defendant must

raise a claim of error at the first available opportunity.").                  We

acknowledge that the state appeals panel that did consider the

issue    refrained   from   explicitly   terming    it    waived,      observing


innocent.'" Schlup v. Delo, 513 U.S. 298, 327 (1992) (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)).
     4
       Madden's disposition was disclosed in the Commonwealth's
brief on appeal.
     5
       The rule allows admission of new evidence into the record
either through stipulation by the parties or on motion "[i]f
anything material to either party is omitted from the record by
error or accident or is misstated therein . . . ." Mass. R. App.
P. 8(e).

                                   -5-
instead that petitioner's failure to raise it at trial or on direct

appeal "implicates the possibility of waiver," 744 N.E.2d at 97

(emphasis added).         But the court then went on to utilize the

standard of review applicable to waived claims.           In our view, the

court thus treated the bolstering issue as waived, limiting its own

review with the consequence of limiting ours as well. We therefore

hold that the district court properly disposed of this issue.6

       Ineffective Assistance of Counsel/Unfulfilled Promise.            The

Massachusetts Appeals Court concluded that defense counsel "failed

to meet a minimum standard of performance by announcing to the jury

that the defendant might testify without first having met with him

to discuss that possibility and to prepare him for it," 688 N.E.2d

at 1088.        Pursuant to the two-part test applicable under both

federal and state law for ineffective assistance claims, the court

then       explored   whether   counsel's   deficient   representation   was

prejudicial, see Strickland v. Washington, 466 U.S. 668, 687, 694

(1984); Commonwealth v. Johnson, 754 N.E.2d 685, 694 (Mass. 2001),

and found that it was not.         See 688 N.E.2d at 122-24.

       The district court, in turn, considered the issue with the

substantial deference required by the Antiterrorism and Effective

Death Penalty Act (AEDPA).         See Williams v. Taylor, 529 U.S. 362,


       6
       We note that, even if we did not view the claim as waived,
the outcome would be the same; on this record, we could not say
that the Massachusetts court's decision either was contrary to or
involved an unreasonable application of clearly established federal
law. See infra at 7.

                                      -6-
412-13 (2000); McCambridge v. Hall, 303 F.3d 23, 35-37 (lst Cir.

2002) (en banc).     In relevant part, that statute bars a federal

court    from   granting   habeas   relief    unless    the     state   court

adjudication "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).          The district court agreed that

"trial counsel undoubtedly made a serious error," but disagreed

with the finding of no prejudice: "If viewed de novo, this court

would conclude that there is a reasonable possibility that, but for

counsel's errors, the result of the proceeding would have been

different."     The court recognized that the question was close,

however, and, in light of the constraints imposed by AEDPA, could

not say that the Appeals Court's decision was an unreasonable

application of the prejudice prong of the Strickland test.

     Both the Massachusetts Appeals Court and the district court

assessed prejudice by reviewing the relevant distinctions between

this case and other cases in which habeas relief was granted based

on counsel's failure to call a defendant or expert whose testimony

had been promised in an opening statement.           As the district court

observed, the differences add up to a very close case.7            Given the


     7
       The distinctions noted by the district court included: (1)
prior cases involved more dramatic, unequivocal and repeated
promises that the defendant or an expert would testify; (2)
petitioner's version of events did reach the jury through the
cross-examination testimony of State Trooper Cox, albeit in a less

                                    -7-
narrow sphere in which we may act, we are compelled to affirm

dismissal of the habeas petition. Regardless whether we would make

the same judgment, we cannot say the conclusion reached by the

state appeals court was objectively unreasonable.

     Affirmed.




powerful form than live testimony from petitioner himself; (3) the
cumulative nature of his testimony diminished the likelihood that
the jury would draw a negative inference from his non-appearance.
See Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002); Anderson v.
Butler, 858 F.2d 16 (1st Cir. 1988).

                               -8-
