
USCA1 Opinion

	




          November 17, 1995     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                                                                           ____________________                                 ____________________          No. 94-2294           No. 94-2294                                   ROBERT E. McCLARY,                                  ROBERT E. McCLARY,                                Petitoner, Appellant,                                Petitoner, Appellant,                                          v.                                          v.                             PETER A. PEPE,  JR., ET AL.,                             PETER A. PEPE,  JR., ET AL.,                               Respondents, Appellees.                               Respondents, Appellees.                                 ____________________                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this Court  issued on November  9, 1995,  is               The opinion of  this Court  issued on November  9, 1995,  is          amended as follows:          amended as follows:               On page 2, footnote 27 is changed to footnote 1.               On page 2, footnote 27 is changed to footnote 1.          November 9, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 94-2294                                   ROBERT E. McCLARY,                                Petitoner, Appellant,                                          v.                             PETER A. PEPE,  JR., ET AL.,                               Respondents, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Robert E. McClary on brief pro se.            _________________            Scott  Harshbarger,   Attorney  General,   and  Pamela  L.   Hunt,            __________________                              _________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                              Per Curiam. Pro se plaintiff Robert McClary appeals from                 __________  ___ __            the  summary dismissal  of his  habeas  corpus petition.   He            claims  that  his  conviction  for  trafficking  cocaine   is            unconstitutional  because  the prosecutor  violated  Doyle v.                                                                 _____            Ohio,  426  U.S.  610 (1976),  by  improperly cross-examining            ____            McClary and  commenting on  McClary's post-arrest  silence in            his closing argument.                 We have thoroughly reviewed  the record and the parties'            briefs  on appeal.  We are persuaded that the habeas petition            was properly  dismissed under  Anderson v. Charles,  447 U.S.                                           ________    _______            404, 408-09  (1981), (per  curiam), and Grieco  v. Hall,  641                                                    ______     ____            F.2d 1029, 1032-36 (1st Cir. 1981).   We note that even if we            assumed arguendo  that Doyle error is  present, habeas relief                                   _____            is  not  warranted  here.   The  record  discloses  that  the            evidence against McClary was strong and that the  error could            not have  had  a  substantial and  injurious  effect  on  the            verdict.  See  Brecht v.  Abrahamson, 113 S.  Ct. 1711,  1722                      ___  ______     __________            (1993).   While  we  need not  decide  whether the  "harmless            beyond a reasonable doubt" test of Chapman v. California, 386                                               _______    __________            U.S.  18, 24 (1967), should  be applied to  this appeal1, the            evidence indicates that any  alleged Doyle error was harmless                                                 _____            under  this test  as well. Accordingly,  the judgment  of the                                            ____________________            1.  While  McClary made this argument below, he has failed to            develop it on appeal.  Thus, the point has been  waived.  See                                                                      ___            United  States v. Zannino, 895  F.2d 1, 17  (1st Cir.), cert.            ______________    _______                               _____            denied, 494 U.S. 1082 (1990).            ______            district court is affirmed.                              ________                                         -2-
