               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 04-1296

                       RICHARD DRAYTON NORTH,

                       Petitioner, Appellant,

                                     v.

         JOSEPH F. MCDONOUGH, SHERIFF, PLYMOUTH COUNTY,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Edward F. Harrington, Senior U.S. District Judge]


                                  Before

                     Torruella, Circuit Judge,
                   Stahl, Senior Circuit Judge,
                    and Howard, Circuit Judge,



     David J. Nathanson on Memorandum in Support of a Certificate
of Appealability for appellant.



                          December 23, 2004
           Per    Curiam.   Richard   North   seeks   a   certificate   of

appealability (COA) to appeal from the district court's denial of

his petition for habeas relief pursuant to 28 U.S.C. § 2254 from a

state court conviction on twenty-two indictments for larceny by

false pretenses.     North seeks a COA to pursue his claims that he

was denied counsel or, in the alternative, received ineffective

assistance of counsel, in violation of his Sixth Amendment rights.

We may grant a COA only if the district court's application of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to

deny habeas relief was "debatable among jurists of reason." Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003).

           Under AEDPA, a federal court may grant a state prisoner's

application for a writ of habeas corpus if the underlying state

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).       With respect to the "unreasonable

application" clause, the focus "is on whether the state court's

application of clearly established federal law is objectively

unreasonable, and . . .     an unreasonable application is different

from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002).

           I. Constructive Denial of Counsel

           In United States v. Cronic, 466 U.S. 648 (1984), the

Supreme Court held that there are some circumstances of deficient


                                   -2-
representation    "that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is

unjustified" and, therefore, prejudice will be presumed. Id. at

658-59.   The Court in Bell "reiterated that prejudice may be

presumed only in three narrowly circumscribed situations." Ouber v.

Guarino, 293 F.3d 19, 33 (1st Cir. 2002).

          First, a trial is presumptively unfair if the
          accused is completely denied the presence of
          counsel   at   a   critical  stage   of   the
          proceedings.   Second, such a presumption is
          warranted if "counsel entirely fails to
          subject the prosecution's case to meaningful
          adversarial testing." Third, prejudice may be
          presumed in the presence of circumstances
          under which a competent lawyer would likely
          not be able to render effective assistance.

Id. (citations omitted).

          In his memorandum in support of his habeas petition,

North argued     that   the   circumstances   of   his   case   fell   within

Cronic's second exception to the prejudice requirement:

          [Defense counsel] completely failed to subject
          the   Commonwealth's   case    to   meaningful
          adversarial testing by: (1) her complete
          failure to participate in jury selection, (2)
          her failure to cross-examine thirty-six of
          forty-five witnesses (including three of the
          five complainants, and none of North's
          employees), and (3) her baseless waiver of an
          opening statement.

North's Memorandum in Support of Petition for Writ of Habeas

Corpus, Dkt No. 11, p. 13.      The trial transcript indicates that at

each of the identified points in the trial, defense counsel stated

that she was not in a position to challenge jurors, make an opening

                                    -3-
statement or cross-examine certain prosecution witnesses because

she hadn't been provided with adequate discovery to try the case.

                 In Bell, the Supreme Court explained that in order to

come within Cronic's second exception, "the attorney's failure [to

test the prosecutor's case] must be complete." Bell, 535 U.S. at

697.       By contrast, an argument that "counsel failed to oppose the

prosecution . . . at specific points" is subject to Strickland's

performance and prejudice components. Id. at 697-98.                The state

court in this case supportably found that defense counsel was

present      throughout    the   trial,    effectively     cross-examined   key

prosecution witnesses and presented to the jury a "defense of good-

faith failure to provide a return on investments." Commonwealth v.

North,      52    Mass.App.Ct.   603,     614   (2001).1    On   this   record,

reasonable jurists could not find debatable the district court's

conclusion that the state court did not unreasonably apply Cronic

in concluding that North's representation did not fall within the

second Cronic exception.

                 II. Ineffective Assistance of Counsel




       1
       The record also supports the state court's finding that
despite counsel's protests that she had not been provided with
discovery, "[by] the time trial commenced, the trial judge and
other judges had made every reasonable accommodation to insure that
counsel and the defendant were prepared," and that "[w]hile trial
was ongoing, the judge adjusted the trial schedule repeatedly to
accommodate the defendant's review of documents." North, 52
Mass.App.Ct. at 613.

                                        -4-
                In analyzing North's ineffective assistance claim, the

state court applied Commonwealth v. Saferian 366 Mass. 89 (1974),

which this court has concluded is "for habeas purposes . . ., a

functional equivalent of Strickland." Ouber v. Guarino, 293 F.3d

19,   32       (1st   Cir.   2002).       "To   establish   such   a     violation,

Strickland v. Washington, 466 U.S. 668, 687-96 (1984), requires

that [defendant] show (1) that [defense counsel's] performance fell

below     an     objective     standard    of   reasonableness     and    (2)   that

prejudice resulted." Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir.

1998).     The state court held that North had failed to satisfy

either prong of the Strickland test, and the district court found

that the state court had reasonably applied Strickland in reaching

that conclusion.

                Reasonable jurists could not dispute the district court's

determination.          "Under the applicable constitutional standard, a

failure of proof on either prong of the Strickland test defeats an

ineffective assistance of counsel claim." United States v. LaBonte,

70 F.3d 1396, 1413-14 (1st Cir. 1995), rev'd on other grounds, 520

U.S. 751 (1997).             We focus on the prejudice prong.2 To satisfy

Strickland's second prong, a defendant




      2
       We therefore need not resolve petitioner's claim that the
state court applied a standard contrary to Supreme Court precedent
in holding that his acquiescence in his attorney's improper tactics
precluded a finding that the first prong of Strickland had been
satisfied.

                                          -5-
           must demonstrate that there was a reasonable
           probability that but for [his attorney's]
           errors, the outcome of the trial would have
           been different. For that purpose a reasonable
           probability is defined as      "a probability
           sufficient to undermine confidence in the
           outcome." And in that respect our analysis is
           not limited to outcome determination - we must
           also contemplate "whether the result of the
           proceeding   was   fundamentally   unfair   or
           unreliable."

Tejeda, 142 F.3d at 22.

           In his memorandum in support of his habeas petition and

in his COA application, North specifically claims that he was

prejudiced     by   his   counsel's   failure   to   cross-examine   certain

witnesses, failure to call other witnesses, and failure to consult

an accountant.       Having considered those claims and reviewed the

state court trial transcript, we conclude that reasonable jurists

could    not   dispute     the   district   court's    determination    that

petitioner failed to make the requisite showing that the state

court's prejudice determination was objectively unreasonable.3


     3
       Petitioner's reliance upon Tejeda v. Dubois, 142 F.3d 18 (1st
Cir. 1998),is misplaced. As an initial matter, Tejeda filed his
habeas petition before the effective date of AEDPA and, therefore,
AEDPA's "more stringent limitations on the federal courts' review
of state court determinations via habeas proceedings" did not apply
and we reviewed his ineffective assistance claim de novo. Id. at
22.   Moreover, our review of the record in this case indicates
other dissimilarities. We found that Tejeda's counsel "fail[ed] to
present a coherent argument" in support of the defense of police
fabrication. Id. at 25. We also found that Tejeda's counsel and
the trial judge "simply could not tolerate each other" and that
their relationship "ruptured completely." Id. at 22. The state
court made no such finding with respect to defense counsel's
relationship with the trial judge in this case, nor would the trial
transcript have supported such a finding.

                                      -6-
          Petitioner's request for a COA is denied and the appeal

is terminated.




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