
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-2197                                 OSCAR N. BURKS, JR.,                                Petitioner, Appellant,                                         v.                                    LARRY E. DUBOIS,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________               Neil F. Colleran for appellant.               ________________               Gregory I.  Massing, Assistant  Attorney General,  with whom               ___________________          Scott Harshbarger, Attorney General, was on brief, for appellee.          _________________                              _________________________                                     June 8, 1995                              _________________________                               SELYA, Circuit Judge.   Petitioner-appellant, Oscar  N.                    SELYA, Circuit Judge.                           _____________          Burks, Jr., asked the federal district court to invoke its habeas          corpus powers, 28 U.S.C.     2241-2254 (1988), and set  aside his          state conviction on charges of trafficking in cocaine, exploiting          a  minor   for  illegal  drug-related   purposes,  and  illicitly          conveying  articles to a state penal institution.  See Mass. Gen.                                                             ___          L.  ch. 94C,    32E,  32K  (1989); Mass.  Gen. L.  ch. 268,    31          (1989).     The  district  court  declined  to  issue  the  writ.          Petitioner appeals.  We affirm.                                          I                                          I                                          _                                      Background                                      Background                                      __________                    The stage can be set for consideration of  this single-          issue appeal without lengthy  elaboration.  In doing so,  we take          the  facts   in  the   conventional  manner  prescribed   by  the          jurisprudence  of  habeas  corpus.    See  28  U.S.C.     2254(d)                                                ___          (stipulating presumption  of correctness  that attaches  to state          court findings of  fact in federal habeas proceedings);  see also                                                                   ___ ____          Miller v. Fenton, 474 U.S. 104, 112-15 (1985).          ______    ______                    Petitioner,   a   correctional  officer   at   a  state          penitentiary in Gardner,  Massachusetts, agreed to  facilitate an          inmate's  scheme to smuggle contraband into the prison.  The plan          called  for  petitioner to  pick  up  an ounce  of  cocaine  at a          predetermined spot outside the institution and deliver  it to the          inmate  in  return  for  a  $200  fee  plus  a  jot  of  cocaine.          Petitioner  did not know that his newfound crony was fronting for          the state police.                                          2                    After  one  unsuccessful   attempt,  the  inmate   told          petitioner  that the drugs and the money  would be deposited in a          residential mailbox in Worcester.  On August 15, 1991, petitioner          sojourned to that  city, located the house (which, unbeknownst to          him,  was under intensive  police surveillance), and  drove by it          several  times.  He then visited  a nearby doughnut shop where he          invented a cock-and-bull  story, the  gist of which  was that  he          wished to  retrieve a  letter from his  girlfriend's mailbox  but          could not do  so himself.  On this basis  he recruited a 14-year-          old boy as an unwitting accomplice,  agreeing to pay the lad  $30          to fetch the prize from the mailbox.                    The pair reconnoitered the drop site.   Petitioner then          watched  as the boy approached  the mailbox and  withdrew a paper          bag.   Instead  of waiting  for his  courier to  return, however,          petitioner  drove  away.   We think  a  jury could  properly have          inferred either that petitioner's  nerve failed or that  he spied          the  stakeout.  At any rate,  he never obtained possession of the          bag.                     In  due  course, the  authorities  arrested petitioner,          charged  him, and  proceeded to  trial.   After the  Commonwealth          presented its case, the petitioner testified in his  own defense.          He admitted colloguing with the inmate.  He further admitted that          he  knew the  mailbox  contained both  drugs  and money,  but  he          assumed that they would  be in separate envelopes.  He swore that          he only intended to pocket the cash, not  to deliver the cocaine.          When  he saw the paper bag, he thought that it probably contained                                          3          drugs.  At that point, he panicked and fled.                     On cross-examination the  prosecutor asked  petitioner:          "And, sir, you knew that that package contained drugs, and still,          sir, you sent that  fourteen year old kid to  retrieve it, didn't          you,  sir?"   The  superior court  judge,  sua sponte,  ruled the                                                     ___ ______          question  improper, interjecting:   "That's argumentative."   The          prosecutor immediately shifted gears.1                    During   closing   argument,   the  prosecutor,   using          rhetorical questions to flay her prey, took unwarranted liberties          with this portion of her cross-examination.  She argued:                         And what  does  the defendant  do?    He                    leaves the  fourteen year  old high  and dry,                    knowing   I asked  him.  I said to  him, "You                    knew  that  package  contained  cocaine,  but                    still   you  sent  a  fourteen  year  old  to                    retrieve it?"                         And what did the defendant say?  "Yes."          Petitioner's  trial counsel  did not  object to  the prosecutor's          flagrant misstatement.   In the  end, the  jury found  petitioner          guilty.                    Following  the  imposition   of  sentence,   petitioner          secured the services  of successor  counsel and moved  for a  new          trial,  arguing  that  the  prosecutor's  distortion  had  caused          justice to miscarry.   The  trial judge rejected  the motion  and          petitioner appealed.   The Massachusetts  Appeals Court summarily                                        ____________________               1At first, it was thought that petitioner did not answer the          question.  In  considering petitioner's motion  for a new  trial,          however, the judge queried the court reporter, who  consulted her          tape  recording of the testimony and reported that petitioner had          in fact responded audibly, stating:  "No. I did not."                                          4          affirmed  the denial  of relief, see  Commonwealth v.  Burks, 608                                           ___  ____________     _____          N.E.2d 1066 (Mass. App. Ct. 1993) (table) (unpublished rescript),          and the Supreme Judicial Court declined further appellate review,          see Commonwealth v. Burks, 617 N.E.2d 639 (Mass. 1993) (table).          ___ ____________    _____                    Little daunted, petitioner sought habeas corpus in  the          federal district  court.  He  advanced a single claim:   that the          prosecutor's  misstatement  of  the  evidence  in  her  summation          deprived him  of due  process and  thwarted his  right to  a fair          trial.  The  respondent, a state correctional  official, moved to          dismiss, asserting  that because  petitioner had not  objected to          the  misstatement  when  it  was  uttered  in  state  court,  his          constitutional claim could not be entertained in a federal habeas          proceeding.  Petitioner  acknowledged the procedural  default but          nonetheless  opposed dismissal  on two  bases.   He said  that he          could demonstrate  cause for, and prejudice  from, the procedural          default; and, moreover, that  absent habeas relief, a miscarriage          of justice  would go  uncorrected.  Judge  Gertner, adopting  the          report and  recommendation of a magistrate  judge, overrode these          objections and dismissed the petition.  This appeal followed.                                          II                                          II                                          __                                       Analysis                                       Analysis                                       ________                                          A.                                          A                                          _                             Applicable Legal Principles                             Applicable Legal Principles                             ___________________________                    The  habeas  corpus  anodyne  is  designed  neither  to          provide an additional layer  of conventional appellate review nor          to  correct garden-variety errors,  whether of fact  or law, that                                          5          may stain  the record  of a state  criminal trial.   Rather,  the          remedy is limited to  the consideration of federal constitutional          claims.   See  Herrera v.  Collins, 113  S. Ct.  853, 860  (1993)                    ___  _______     _______          (affirming that the purpose of federal habeas corpus review is to          ensure  that individuals are  not imprisoned in  violation of the          Constitution); see  also Barefoot v.  Estelle, 463 U.S.  880, 887                         ___  ____ ________     _______          (1983) ("Federal courts  are not  forums in  which to  relitigate          state  trials.").  Thus, federal habeas review is precluded, as a          general proposition, when a state  court has reached its decision          on  the basis  of an adequate  and independent  state-law ground.          See  Coleman v.  Thompson, 501  U.S. 722,  729 (1991);  Harris v.          ___  _______     ________                               ______          Reed, 489 U.S. 255, 262 (1989); Ortiz v. Dubois, 19 F.3d 708, 714          ____                            _____    ______          (1st Cir. 1994), cert. denied, 115 S. Ct. 739 (1995).                           _____ ______                    A defendant's failure to object  in a timely manner  at          his  state   criminal  trial  may  constitute   an  adequate  and          independent state ground  sufficient to trigger  the bar rule  so          long  as the  state  has a  consistently applied  contemporaneous          objection  requirement and the state  court has not  waived it in          the particular case by resting its decision on some other ground.          See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Puleio  v. Vose,          ___ __________    _____                          ______     ____          830 F.2d 1197, 1199 (1st Cir.  1987), cert. denied, 485 U.S.  990                                                _____ ______          (1988).  Hence, a state court decision  resting upon a finding of          procedural default   such  as a decision rooted in  a defendant's          noncompliance   with   an   unwaived  contemporaneous   objection          requirement     forecloses  federal  habeas  review   unless  the          petitioner can  demonstrate cause  for the default  and prejudice                                          6          stemming therefrom, or, alternatively,  unless the petitioner can          show  that a refusal to consider the merits of the constitutional          claim will work a miscarriage of justice.   See Coleman, 501 U.S.                                                      ___ _______          at 750; Harris, 489 U.S. at 262.                  ______                    This  framework is  directly pertinent  to petitioner's          appeal.   Massachusetts has  a  routinely enforced,  consistently          applied contemporaneous  objection rule.  See,  e.g., Puleio, 830                                                    ___   ____  ______          F.2d  at 1199; Commonwealth v. Fluker, 385 N.E.2d 256, 261 (Mass.                         ____________    ______          1979); see also  Mass. R. Crim.  P. 22.  Petitioner  honored this                 ___ ____          rule  only  in  the breach;  after  all,  his  petition is  based          exclusively on  his claim that the  prosecutor misrepresented the          evidence   when  summing   up,   yet  he   failed   to  lodge   a          contemporaneous  objection at the time the misrepresentation took          wing.  Moreover, the state  courts relied on, and did not  waive,          the contemporaneous objection requirement; the appeals court, for          instance, rested its rejection of petitioner's belated complaints          about the prosecutor's misstatement squarely on this adequate and          independent state  ground.2   Consequently, we  have before  us a          classic  example  of a  procedural  default,  and petitioner  can          succeed  in his habeas case only by showing cognizable cause for,                                        ____________________               2To be sure, the  appeals court also reviewed the  merits of          petitioner's contentions to see  whether a miscarriage of justice          lurked in the record.   But, given the contours  of Massachusetts          practice, see,  e.g., Mass. Gen. L.  ch. 211A,    10 (1989), that                    ___   ____          sort of limited review, clearly labelled, does not work a waiver.          See  Tart v.  Massachusetts, 949  F.2d 490,  496 (1st  Cir. 1991)          ___  ____     _____________          (explaining  that state appellate  review under the Massachusetts          miscarriage  of justice standard does not  amount to state waiver          of  the contemporaneous objection rule); Puleio, 830 F.2d at 1200                                                   ______          (same).                                          7          and  cognizable  prejudice  from,   his  procedural  default  or,          alternatively, by demonstrating that  the federal court's failure          to address the claim on habeas review will occasion a miscarriage          of justice.                                          B.                                          B.                                          _                                 Cause and Prejudice                                 Cause and Prejudice                                 ___________________                    Faced  by a  state-court  judgment that  rests upon  an          adequate and  independent state  ground, a habeas  petitioner has          the burden of proving both cause and prejudice.  See Coleman, 501                                                           ___ _______          U.S.  at 750;  Wainwright, 433  U.S. at  87; Puleio, 830  F.2d at                         __________                    ______          1202.  Here, we start   and end   with cause.3                    In the  habeas context,  cause is a  term of  art.   To          excuse a procedural  default, a petitioner's cause must relate to          an objective factor, external to  the defense, that thwarted  (or          at least  substantially obstructed) the efforts  of the defendant          or his counsel  to obey the state's procedural rule.   See Murray                                                                 ___ ______          v.  Carrier, 477 U.S. 478,  488 (1986); Magee  v. Harshbarger, 16              _______                             _____     ___________          F.3d  469, 471  (1st  Cir.  1994).    Mere  attorney  error,  not          amounting  to  ineffective   assistance  in  a   constitutionally          significant  sense, see, e.g., Scarpa  v. Dubois, 38  F.3d 1 (1st                              ___  ____  ______     ______          Cir.  1994), cert. denied, 115  S. Ct. 940  (1995) and additional                       _____ ______                          ______________                                        ____________________               3Because we descry no  cognizable cause sufficient to excuse          petitioner's procedural  default, see infra, we  have no occasion                                            ___ _____          to discuss the  prejudice prong  of the two-part  inquiry in  any          great  detail.  We add in passing, however, that, having reviewed          the  full  record, the  state's case  appears  to have  been very          muscular.   Viewed in light of all the evidence, the prosecutor's          incorrect  statement does  not seem  to us  to have  actually and          substantially prejudiced  petitioner.  See, e.g.,  Ortiz, 19 F.3d                                                 ___  ____   _____          at 714 (discussing prejudice standard).                                          8          petition for cert. filed  (U.S. Oct. 27, 1994) (No.  94-9157), is          ________________________          insufficient  to constitute  cause.4   See Coleman,  501 U.S.  at                                                 ___ _______          753; Murray,  477 U.S.  at 488;  Puleio, 830 F.2d  at 1201.   The               ______                      ______          principle  hardly could be to  the contrary.   If inadvertence of          counsel,  without  more,  were  deemed  to  constitute sufficient          cause, the cause requirement would be reduced to little more than          a speed bump on the road to a federal forum.                    In  an effort to  show that his  procedural default was          caused by an external, objective impediment, Burks avers that his          trial  counsel  did  not  hear  the  answer  to  the prosecutor's          improper question  (quoted supra  p. 4).   This  fact, petitioner                                     _____          contends,  caused counsel's  later  silence when  the  prosecutor          incorrectly recounted the  testimony.  Petitioner's  thesis melts          under the hot glare of scrutiny.                    Assuming  for  the  sake  of  argument  that  counsel's          failure to hear a  witness' response may constitute  an external,          objective impediment under  some circumstances,  cf. Puleio,  830                                                           ___ ______          F.2d  at 1201  (discussing,  but sidestepping  as unexhausted,  a          claim  that trial  counsel's  hearing impairment  operated as  an          external,   objective   impediment   to   compliance   with   the          Massachusetts contemporaneous  objection rule),  it cannot do  so          here.  To  provide cause, a factor  not only must be  objectively          ascertainable  and external to  the defense,  but also  must have          brought  about  the event  of default.    See generally  James S.                                                    ___ _________                                        ____________________               4We  note   that  petitioner  did  not   assert  ineffective          assistance  of counsel as a basis for relief in his habeas corpus          application, nor has he tendered such a claim on appeal.                                          9          Liebman, Federal Habeas Corpus Practice and Procedure   24.3,  at                   ____________________________________________          381-83 (Supp. 1993).  In other words, cause, as the name implies,          must  bear   a  causal  relationship  to   noncompliance.    That          relationshipis utterlylacking inthis instance. Weexplain briefly.                    There  is no  foundation in  the record  for suggesting          that  counsel did not hear the  trial judge brand the question as          being ultracrepidarian.  And  because the question itself  was an          improper  subject  for  closing  argument,  defense  counsel  had          precisely  the  same  incentive  to pounce  on  the  prosecutor's          subsequent reference to it whether Burks answered "no" or did not          answer at all.  In addition, even if defense counsel did not hear          Burks respond in the  negative, the prosecutor's misquotation was                        __ ___  ________          still a potentially harmful distortion, and defense counsel could          and  should  have  objected  when the  prosecutor  asserted  that          petitioner had answered in the affirmative.  On this basis, then,                                  __ ___ ___________          the  lower court  correctly concluded  that petitioner  failed to          show  any  legally  cognizable  cause sufficient  to  excuse  his          procedural default.                                          C.                                          C.                                          _                                Miscarriage of Justice                                Miscarriage of Justice                                ______________________                    Even absent a showing of cause and prejudice, a federal          court exercising its habeas  powers should nonetheless overlook a          procedural default and hear a barred constitutional  claim on the          merits if  its failure  to do  so would  result in a  fundamental          miscarriage of justice.  See Murray, 477 U.S. at 495-96.  This is                                   ___ ______          a narrow exception to the cause-and-prejudice imperative,  seldom                                          10          to be used, and explicitly tied to a showing of actual innocence.          See Schlup v. Delo, 115 S. Ct. 851, 864 (1995); Ortiz, 19 F.3d at          ___ ______    ____                              _____          714; see also  Watkins v. Ponte, 987 F.2d 27,  31 (1st Cir. 1993)               ___ ____  _______    _____          (explaining  that,  in  a   habeas  case,  the  "petitioner  must          supplement the constitutional violation with a `colorable showing          of factual innocence'") (quoting McCleskey v. Zant, 499 U.S. 467,                                           _________    ____          495 (1991)).                    To  be sure,  a habeas  petitioner  need not  prove his          innocence beyond all  doubt in order  to reach the safe  haven of          the  miscarriage exception:   it suffices  if the  petitioner can          show  a  probability  that  a  reasonable  jury  would  not  have          convicted  but for  the constitutional  violation.5   See Murray,                                                                ___ ______          477 U.S. at 496.                    Here, petitioner has not made a satisfactory showing of          actual innocence.  His  argument on this point alludes  to no new          information  suggesting  innocence,   but  merely  rehashes   the          testimony  adduced at  his  trial  in  an  attempt  to  foster  a          suspicion that  the prosecutor's  overreaching may have  been the          straw that broke the dromedary's back  and, thus, led the jury to          convict.   However, the miscarriage of  justice standard requires                                        ____________________               5Respondent  asserts that Sawyer v. Whitley, 112 S. Ct. 2514                                         ______    _______          (1992), has placed  a gloss  on Murray,  and now  requires, in  a                                          ______          noncapital  case,  that  petitioner  make  a  showing  of  actual          innocence  by "clear and  convincing" evidence, rather  than on a          probability standard.  Id. at  2523.  For two reasons,  we cannot                                 ___          embrace  this thesis,  at  least at  the  present time.    First,          respondent may be reading Sawyer too broadly, especially in light                                    ______          of  Schlup.  Second,  we note that, in  all events, the appellant              ______          cannot satisfy  even the  probability standard limned  in Murray.                                                                    ______          Consequently,  we leave to  another day the  question of Sawyer's                                                                   ______          (and Schlup's) effect, if any, on the lessons of Murray.               ______                                      ______                                          11          more than a  possibility of prejudice, see Schlup,  115 S. Ct. at                                                 ___ ______          867  & n.45;  Sawyer v.  Whitley, 112  S. Ct.  2514, 2522  & n.13                        ______     _______          (1992), and petitioner's excursion through the record does not by          any  stretch  of the  imagination  show a  probability  of actual          innocence.   Accordingly, his  speculation about what  might   or          might not    have been the  outcome of an error-free  trial is an          exercise in futility.    Put another way, petitioner's recreation          of what transpired in the state  trial court shows, at most, that          there was a  legitimate jury question  as to his guilt,  and that          the prosecutor placed her thumb on  the scales of justice at  one          point.   This is not  enough to qualify  for extraordinary relief          under  Schlup and  its  precursors.   As  Justice Stevens  wrote,                 ______          "[w]ithout any new evidence of innocence, even the existence of a          concededly meritorious  constitutional violation is not in itself          sufficient to establish a miscarriage of justice that would allow          a  habeas court to reach the merits  of a barred claim."  Schlup,                                                                    ______          115 S. Ct. at 861.                    We  need go  no further.   Because  petitioner has  not          shown that the failure to entertain his constitutional claim more          likely  than not  will  result in  a  fundamental miscarriage  of          justice, his habeas petition remains a casualty of his procedural          default.          Affirmed.          Affirmed          ________                                          12
