
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                                  <br> <br>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-1777 <br> <br>                       MIGUEL TEJEDA, JR., <br> <br>                           Petitioner, <br> <br>                                v. <br> <br>                         LARRY E. DUBOIS, <br> <br>                           Respondent. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Joseph L. Tauro, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Stahl, Circuit Judge, <br> <br>                    Cyr, Senior Circuit Judge, <br> <br>and Shadur, Senior District Judge.  <br> <br>                      _____________________ <br> <br>     John M. Thompson for petitioner. <br>     Susanne G. Levsen, Assistant Attorney General, with whom Scott <br>Harshbarger, Attorney General, was on brief for respondent. <br> <br> <br> <br>                       ____________________ <br> <br>                         April 24, 1998 <br>                       ____________________

          SHADUR, Senior District Judge.  Miguel Tejeda Jr. <br>("Tejeda") has filed a 28 U.S.C.  2254 ("Section 2254") petition <br>for a writ of habeas corpus ("Petition") that challenges his state <br>court conviction on three related criminal charges.  Tejeda <br>contends that his conviction must be overturned because he did not <br>receive constitutionally effective counsel at trial as required by <br>the Sixth Amendment.  That claim was rejected by the district <br>court, but for the reasons set forth below we reverse that <br>decision, vacate Tejeda's conviction and remand the case for entry <br>of an appropriate order. <br>                            Background  Tejeda was arrested on July 11, 1991 and charged with <br>trafficking in cocaine, unlawful possession of a firearm and <br>unlawful possession of a firearm or ammunition without an <br>identification card.  Shortly thereafter he was indicted by a <br>Hampden County, Massachusetts grand jury on those charges and was <br>brought to trial in Hampden Superior Court.  After Tejeda lost two <br>motions to suppress evidence, the trial commenced on December 9, <br>1991.  <br>     At trial the prosecution relied on five police witnesses <br>to build its case against Tejeda.  What follows in the next three <br>paragraphs is the officers' account of events, set out as factual <br>narrative without stating the qualification that it reflects their <br>testimony as the jury could be entitled to credit it. <br>     On the date of Tejeda's arrest Sergeant Charles Cook <br>("Cook") had supervised police surveillance of a house at 37 James <br>Street in Springfield, Massachusetts.  Tejeda lived in an apartment <br>on the first floor of the house.  After Cook learned that the <br>police had obtained a search warrant for the house (a warrant based <br>on a tip provided by a confidential informant), Cook observed <br>Tejeda leave the house, open the trunk of a car parked outside and <br>lean inside the trunk.  Tejeda then drove away in the car.   <br>     Cook followed Tejeda for a short distance and then <br>radioed Detective John O'Mara ("O'Mara") to stop the car.  O'Mara <br>stopped Tejeda several blocks away and searched the car.  O'Mara's <br>partner, Detective Dennis Kirby ("Kirby"), found a plastic bag in <br>the trunk that contained about 30 grams of white powder, which <br>proved to be cocaine, and $366 on Tejeda's person.  Kirby took <br>Tejeda to the police station after conducting the search. <br>     Shortly after the arrest, Cook and several other officers <br>searched Tejeda's apartment.  They found a loaded .38 caliber <br>revolver under a mattress, ammunition for the gun, personal papers <br>indicating that Tejeda lived in the apartment and a "drug ledger" <br>containing names and addresses of prospective drug clients.  Tejeda <br>did not have the requisite identification card for the firearm and <br>ammunition. <br>     In the face of such testimony, Tejeda's defense lawyer <br>Edelmiro Martnez, Jr. ("Martnez") concluded that Tejeda's only <br>defense was to argue that the police had fabricated the case <br>against Tejeda.  Martnez began his defense by trying to expose <br>inconsistencies in the police testimony during his cross- <br>examinations, but his efforts were completely unavailing because <br>the trial judge sustained numerous objections to Martnez' <br>questions suggesting potential police fraud.  Those rulings <br>hampered Martnez' pursuit of that line of inquiry. <br>     Martnez complained bitterly about the adverse rulings, <br>arguing that they prevented him from presenting his defense.  In <br>response the judge harshly warned Martnez not to present a police <br>fabrication defense supported only by Tejeda's word.  Those <br>contentious encounters generated an obvious hostility between <br>Martnez and the judge that poisoned their relationship for the <br>remainder of the trial.  Martnez, incensed by the judge's <br>consistently unfavorable rulings, acted out his frustration by <br>attacking the integrity of the judge.  Martnez' petulance in turn <br>antagonized the judge to the point that he fined Martnez $300 for <br>contempt of court after one outburst. <br>     That ongoing conflict discouraged Martnez' pursuit of <br>the police-fabrication line of defense.  He stopped trying to <br>cross-examine prosecution witnesses on that subject and <br>consequently failed to uncover significant inconsistencies that did <br>exist in Cook's and O'Mara's testimony.    <br>     In the end, the only evidence of police fabrication that <br>Martnez presented coherently came from Tejeda and one other <br>defense witness.  Tejeda vigorously denied having either drugs or <br>a gun in his car or apartment.  On the contrary, he testified that <br>he was going in his car to pay some bills when he was stopped at <br>gunpoint by the police.  Tejeda contradicted O'Mara, stating that <br>the car was not searched in Tejeda's presence.  Instead Tejeda said <br>that the police took him to the police station immediately and did <br>not inform him of the charges against him until the next day.  <br>Tejeda stuck to his story during the prosecution's cross- <br>examination, repeatedly insisting that the officers were lying. <br>     Tejeda's only substantive defense witness, Alejandro <br>Bonilla ("Bonilla"), claimed that he was Tejeda's roommate and that <br>he never saw drug trafficking or the gun in their apartment.  But <br>Bonilla's credibility was undermined when he admitted that he had <br>provided a different home address to the police (in the course of <br>a separate incident) two weeks before Tejeda's arrest. <br>     Despite Martnez' frenetic attempts to elicit evidence of <br>police fabrication, the trial judge concluded that there was no <br>evidence to support the inference that the police were lying.  <br>Accordingly, he explicitly prohibited Martnez from arguing that <br>theory in his closing statement.  While Martnez did not adhere to <br>that order with total strictness, his oblique references to <br>potential police fabrication were scattered and unsupported by <br>objective evidence of police misconduct. <br>     Not surprisingly, Martnez' failure to argue fully what <br>he had candidly admitted to be Tejeda's only line of defense <br>resulted in guilty verdicts against his client.  Tejeda was <br>convicted on all three charges and sentenced to a state prison term <br>of not less than five nor more than seven years. <br>     After filing a timely notice of appeal, Tejeda moved for <br>a new trial--a motion that was denied without a hearing.  When he <br>then appealed both his conviction and the denial of a new trial, <br>new counsel was appointed to handle the appeals.  Both his appeals <br>were consolidated for hearing before the Massachusetts Appeals <br>Court, and on February 18, 1994 the consolidated appeal was <br>rejected (Commonwealth v. Tejeda, 629 N.E.2d 370 (Mass. App. Ct. <br>1994)).  Tejeda's application to the Massachusetts Supreme Judicial <br>Court for further appellate review was denied on March 29, 1994 <br>(Commonwealth v. Tejeda, 634 N.E.2d 121 (Mass. 1994)). <br>     Undeterred, Tejeda filed a petition for federal habeas <br>corpus relief on December 5, 1994.  Then he alleged in an amended <br>petition that he had received constitutionally ineffective <br>assistance at trial from Martnez and that the trial judge had <br>violated his right to counsel and due process by prohibiting <br>Martnez from arguing the police fabrication theory in his closing <br>argument.  On May 12, 1997 the district court issued a memorandum <br>opinion denying both claims. <br>     Tejeda then filed a Motion for Certificate of <br>Appealability as to both claims.  On July 23, 1997 the district <br>court issued a certificate of appealability for Tejeda's <br>ineffective assistance of counsel claim, but refused to grant a <br>certificate for the restricted summation claim.  This appeal <br>resulted from the issuance of the certificate. <br>                       Standard of Review <br>     As n.4 has indicated, Tejeda filed his federal habeas <br>petition on December 5, 1994, well before the April 24, 1996 <br>effective date of the Act's amendments to Section 2254.  Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997) holds that the Act's more <br>stringent limitations on the federal courts' review of state court <br>determinations via habeas proceedings do not apply to petitions <br>pending before the Act became law.  Hence Tejeda is entitled to de <br>novo review of his ineffective assistance of counsel claim (Curtisv. Duval, 124 F.3d 1, 4 (1st Cir. 1997)). <br>           Ineffective-Assistance-of-Counsel Standards Tejeda claims that Martnez' performance at trial was so <br>deficient that it violated Tejeda's Sixth Amendment right to the <br>effective assistance of counsel.  To establish such a violation, <br>Strickland v. Washington, 466 U.S. 668, 687-96 (1984) requires that <br>Tejeda show (1) that Martnez' performance fell below an objective <br>standard of reasonableness and (2) that prejudice resulted. <br>     In evaluating Strickland's first component, we review <br>Martnez' actions with the strong presumption "that, under the <br>circumstances, the challenged action 'might be considered sound <br>trial strategy'" (id. at 689, quoting Michel v. Louisiana, 350 U.S. <br>91, 101 (1955)).  Accordingly, Tejeda must show that "in light of <br>all the circumstances, the identified acts or omissions were <br>outside the wide range of professionally competent assistance" (id.at 690).   <br>     As for the second element--prejudice flowing from <br>Martnez' substandard performance--Tejeda must demonstrate that <br>there was a reasonable probability that but for Martnez' errors <br>the outcome of the trial would have been different (id. at 694).  <br>For that purpose a reasonable probability is defined as "a <br>probability sufficient to undermine confidence in the outcome" <br>(id.).  And in that respect our analysis is not limited to outcome <br>determination--we must also contemplate "whether the result of the <br>proceeding was fundamentally unfair or unreliable" (Scarpa v. DuBois, 38 F.3d 1, 16 (1st Cir. 1994), quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).  That consideration reflects <br>the fact that at its root the right to effective counsel exists "in <br>order to protect the fundamental right to a fair trial" <br>(Strickland, 466 U.S. at 684).

                  Application of the Standards <br>     Tejeda contends that Martnez' performance at trial <br>effectively deprived the jury of the chance to address his theory <br>that the police fabricated the evidence against him.  More <br>specifically, Tejeda argues that Martnez' inflammatory statements <br>and actions during trial led to a critical deterioration in the <br>lawyer's relationship with the trial judge, and that the <br>consequence of that mutual hostility between those two key players <br>was that Martnez failed to provide more than a fragmentary and <br>disjointed defense to the jury. <br>     Our review of the trial transcript confirms that Martnez <br>and the trial judge were like immiscible liquids:  They simply <br>could not tolerate each other.  Their relationship began to break <br>down from the moment that Martnez suggested in his opening <br>statement that the police had fabricated evidence against Tejeda, <br>and it ruptured completely when Martnez began to cross-examine <br>prosecution witnesses in ways that (if he had completed the line of <br>inquiry) could have raised doubts about the veracity of the <br>officers.  Those fledgling attempts to raise the idea of police <br>fabrication to the jury excited the wrath of the judge, who <br>promptly sustained prosecutorial objections to Martnez' line of <br>inquiry.  Martnez responded to those adverse rulings by <br>challenging the integrity of the judge and complaining that he was <br>not being treated fairly.  In turn, those attacks prompted the <br>judge to chastise Martnez about his behavior and to question the <br>propriety of the police fabrication defense itself.   <br>     One exchange that exemplifies the hostile dynamic between <br>Martnez and the trial judge took place during Martnez' cross- <br>examination of O'Mara, the first prosecution witness.  Martnez <br>asked O'Mara questions that implied that the officer had no reason <br>to stop Tejeda's car when he did--in turn implying that O'Mara <br>planted the evidence to cover his own mistake--but the judge <br>sustained a series of objections that allowed O'Mara to avoid <br>answering Martnez' questions.  Martnez criticized those rulings, <br>first asking "What kind of justice is that?" and then complaining <br>"your [sic] limiting me, I can't ask any questions."  Those attacks <br>prompted the judge to demand that Martnez outline the evidence he <br>thought supported his fabrication defense.  When Martnez suggested <br>that Tejeda's account alone would support an inference that the <br>police were lying, the judge retorted "You better have something <br>more than that."  After characterizing Martnez' proffer as <br>"absolutely outrageous," the judge warned Martnez "don't push <br>me...you overstep the bounds with me and you will know it." <br>     Martnez became incensed by the judge's attitude and <br>frequent rulings against him.  He repeatedly protested that the <br>judge was favoring the prosecution, even moving for a mistrial <br>because "I can't ask any questions. [The prosecutor] can ask <br>questions....I believe that I am not in the mood to continue this <br>case this way."  Martnez' remarks to the judge grew increasingly <br>acerbic as the lawyer's mood blackened.  Later rulings against <br>Martnez prompted him to make snide comments such as "I believe <br>that the best thing is for you to ask the jury to find him guilty <br>and that's it," and "It seems everything I do is improper." <br>     Martnez accompanied his acrimonious commentary with <br>outward displays of anger.  Parsing the trial transcript (a paper <br>record that cannot reproduce Martnez' hostile tone, manner and <br>body language, although those things plainly emerge from the <br>disputants' statements) reveals numerous occasions when Martnez <br>had to be told to lower his voice or to refrain from shouting, <br>including one instance where the judge exasperatedly asked that the <br>record reflect the fact that Martnez was yelling.  Nor was <br>Martnez' misconduct limited to the tone of his voice.  After one <br>adverse ruling the judge remonstrated Martnez, saying "I'm sick <br>and tired of you prancing around here, making all kinds of facial <br>expressions, raising your arms, throwing your papers."  <br>     Predictably, Martnez' comments and behavior further <br>antagonized the trial judge, whose loss of all patience with <br>Martnez' attitude was evidenced by the $300 contempt fine.  More <br>importantly, the judge's tolerance for the fabrication defense <br>dwindled as well.  By the end of the trial the judge began to <br>dismiss Martnez' police perjury arguments with out-of-hand <br>comments like "Mr. Martnez, argue with your brain" and "Don't <br>insult my intelligence."   <br>     There is no question that the disintegration of the <br>relationship between the trial judge and Martnez had a corrosive <br>effect on the presentation of Tejeda's fabrication defense to the <br>jury.  Martnez stopped trying to corroborate Tejeda's testimony <br>through cross-examination of the police witnesses, instead devoting <br>his energy to expressing his displeasure with the judge's rulings.  <br>As a result Martnez failed to make effective use of such internal <br>inconsistencies in the officers' testimony as these: <br>          1.  Cook included the cocaine and money in his search <br>     warrant return for the apartment, despite the fact that <br>     Kirby testified at trial that both items were found <br>     instead in the search of Tejeda's car. <br>          2.  Cook testified at trial that the police found a <br>     drug ledger in Tejeda's apartment, but Cook had made no <br>     mention of any such ledger in either his search warrant <br>     return or in his grand jury testimony. <br>          3.  Cook's grand jury testimony and the police arrest <br>     report placed the location of Tejeda's arrest at three <br>     different street intersections (including one non- <br>     existent address). <br>     To be sure, each of those differences (and one or two <br>other matters that we do not itemize) might be viewed instead as <br>reflecting sloppy police work, and the prosecutor would have been <br>entitled to urge that in closing argument to the jury.  But Tejeda <br>too was entitled to have his lawyer urge to the jury that the <br>discrepancies supported the graver conclusion of police misconduct.  <br>Defense counsel's argument drawing that inference from the evidence <br>could have lent critical support to Tejeda's otherwise <br>unsubstantiated version of the facts. <br>     Tejeda's cause also suffered as the trial judge's <br>contempt for Martnez and the fabrication defense grew.  By the end <br>of the trial, the judge mocked Martnez' attempts to use police <br>fabrication arguments.  One manifestation of that disdain was the <br>judge's conclusion that the "facts" presented at trial left "no <br>reasonable inference that the police fabricated any of the stories <br>that they testified to on the stand."  That led the judge <br>explicitly to forbid Martnez from arguing in his closing statement <br>that the police had planted evidence or were otherwise lying on the <br>stand. <br>     Thus hampered by the judge's warning (which was backed up <br>by the judge's oft-demonstrated willingness to sustain objections <br>to Martnez' advocacy), Martnez' final presentation of the <br>fabrication defense in his closing statement was neither coherent <br>nor complete.  In addition, Martnez' earlier failure to expose any <br>chinks in the police version of the facts left him with almost no <br>ammunition at the close.  As a result, his fabrication argument <br>depended heavily on Tejeda's testimony and on the naked assertion <br>that policemen sometimes lie in order to win cases.  Not <br>surprisingly, that impotent presentation of Tejeda's position fell <br>short of raising a reasonable doubt as to Tejeda's guilt in the <br>minds of the jury. <br>     Our extensive review of the trial transcript places us, <br>in cause-and-effect terms, in much the same position as a <br>basketball referee who sees a player throw an elbow at an adversary <br>but cannot tell if the blow was the initial foul or a retaliatory <br>strike.  Both Martnez and the trial judge clearly provoked each <br>other, making it difficult to unravel whether Martnez' petulance <br>or the trial judge's hostility first poisoned their relationship <br>and consequently made it impossible for Martnez to present <br>Tejeda's fabrication defense. <br>     But unlike the basketball referee, we have no need to <br>decide whether to assess a single foul or a double foul.  Instead <br>our constitutional focus is on defendant Tejeda--and he lost <br>regardless of which of the combatants initiated contact.  Either <br>way, Tejeda was deprived of his chance to present an effective <br>fabrication defense to the jury. <br>     It is thus unnecessary for us to attempt to divide the <br>blame between lawyer and judge.  What matters is that lawyer <br>Martnez failed to present Tejeda's primary line of defense to <br>either the judge or the jury.  It is not an answer to observe that <br>the trial judge's own actions appeared to contribute to that <br>failure.  Martnez' anger over the judge's rulings and attitude <br>simply prevented him from serving his client's interests.  That <br>cannot be characterized as trial strategy.  In sum, Martnez' <br>representation was so deficient that it falls below even the <br>minimal standard for professionally competent assistance <br>established by Strickland and its progeny, and it thus satisfies <br>the first half of the Strickland test. <br>     In terms of the second branch of the Strickland analysis, <br>it is impossible to conclude at any level of certainty whether, but <br>for Martnez' conduct, the jury would have decided that there was <br>enough evidence of police fabrication to raise a reasonable doubt <br>as to Tejeda's guilt.  Martnez' failure to present a coherent <br>argument on that score took the question away from the jury and <br>deprived Tejeda of his only defense.  Depriving a criminal <br>defendant of his only viable defense certainly renders the <br>resultant trial "fundamentally unfair or unreliable" as demanded by <br>Lockhart.  Hence Martnez' inadequate performance created <br>sufficient prejudice to satisfy Strickland's second requirement as <br>well, and his habeas petition must be granted. <br>                            Conclusion  Tejeda has demonstrated that Martnez' performance failed <br>to satisfy any objective standard of reasonableness and that Tejeda <br>suffered prejudice from that substandard performance.  That being <br>the case, Tejeda was deprived of his constitutional right to <br>effective assistance of counsel during his trial.  That renders it <br>unnecessary to address Tejeda's added claim based on an allegedly <br>restricted summation by Martnez. <br>     In terms of the appropriate remedy, the present record-- <br>necessarily limited as it is to matters bearing on the issues <br>addressed in our opinion--provides no information as to such <br>questions as when Tejeda actually began to serve his five to seven <br>year sentence and, thus, what his anticipated out date is (giving <br>effect (1) to time spent in custody before the sentence itself <br>commenced and (2) to any good time credits Tejeda has earned while <br>in custody).  Because the nature of Tejeda's constitutional <br>deprivation was the absence of effective representation by counsel <br>rather than some incurable flaw, the usual relief granted to a <br>successful habeas petitioner such as Tejeda would be to give the <br>Commonwealth the choice of affording him a prompt new trial or <br>releasing him.  But in this instance the district judge is in the <br>best position on remand to determine the most appropriate relief.  <br>That may include a determination of what time period would be <br>required for the appropriate scheduling of a new trial, taking into <br>account both the reasonable preparation needs of the prosecution <br>and (more critically) the time needed for new defense counsel to <br>start from scratch and to prepare an effective defense.  It may <br>also be relevant for the district judge to consider whether <br>balancing (1) the timetable referred to in the preceding sentence <br>against (2) the time of Tejeda's presumptive release from custody <br>as things now stand might call for a straightforward order of his <br>current release, rather than affording the Commonwealth the more <br>common alternative described earlier in this paragraph. <br>     We therefore REVERSE the district judge's order, VACATE <br>Tejeda's conviction and REMAND for further proceedings consistent <br>with this opinion.</pre>

</body>

</html>

