          United States Court of Appeals
                     For the First Circuit

No. 12-2515

                         DAVID COLLINS,

                     Petitioner, Appellant,

                               v.

                           GARY RODEN,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor IV, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


          Lori H. Levinson, with whom The Law Office of Lori H.
Levinson, PC, was on brief, for appellant.
          Argie K. Shapiro, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.



                         April 18, 2014
           KAYATTA, Circuit Judge.             David Collins was tried and

convicted in Massachusetts state court on charges of forcibly

raping    his    nephew   J.B.     and    J.B.'s   friend,     C.V.B.   Collins

unsuccessfully sought to overturn that conviction in state court,

arguing   that    his   attorney      provided   ineffective    assistance    by

failing to seek the admission of evidence that Collins's sister had

accused J.B. himself of sexually assaulting three of Collins's

nieces.    Having exhausted his direct appeals, Collins filed a

habeas corpus petition in federal court.                The district court

rejected Collins's claim.         For the following reasons, we affirm.

                                 I.   Background

           J.B., and J.B.'s friend, C.V.B., testified at trial that

Collins engaged in forcible oral sex with each of them on different

occasions in 1993, when both boys were fifteen years old.1               At the

time, Collins was dating J.B.'s mother, Pam.           Several years later,

after their relationship had acrimoniously deteriorated, Collins

made statements to Pam expressing regret for "hurting" J.B., and

she thereafter reported Collins to the police in 1998.                       The

resulting investigation led to Collins's conviction in 2002 in

Massachusetts court on two counts of forcible rape of a child under

the age of sixteen.       See Mass. Gen. Laws ch. 265, § 22A.




     1
        Unless otherwise noted, all facts in this opinion are
uncontested by the parties.

                                         -2-
Collins first appealed his conviction on three grounds not relevant

to this petition.       See Commonwealth v. Collins, 60 Mass. App. Ct.

1111 (2004).   When that effort failed, he filed a motion for a new

trial, arguing, among other things, that his trial counsel was

ineffective.   That challenge concerned his trial counsel's failure

to present evidence available to Collins that shortly before Pam

reported Collins to the police, Collins's sister told Pam that

Pam's son, J.B., had sexually abused several of Collins's nieces,

and that one of those nieces was considering reporting J.B. to the

authorities.

           Collins's trial counsel did make a halting oral attempt

to begin the process of moving to admit the evidence.                But after

the   government    argued     that   it    was      inadmissible   under   the

Massachusetts rape shield statute, the trial court said "I don't

think there's a proffer.       There's not going to be any evidence of

sexual   conduct   by    any   of   the    alleged    victims."     Apparently

persuaded or otherwise deterred, Collins's trial counsel made no

further effort to admit the evidence.             Specifically, he did not

make a written proffer in support of the evidence he sought to have

admitted, a necessary precondition to a motion for admission of

evidence covered by the Massachusetts rape shield law, Mass. Gen.

Laws ch. 233, §    21B.

           It is that cumulative mix of tentative and abandoned

effort that Collins claims deprived him of his constitutional right


                                      -3-
to effective counsel.     Collins argues that his lawyer should have

pressed more properly and effectively for the admission of that

evidence, notwithstanding the challenge posed by the rape shield

statute.      The   statute   provides     that   "[e]vidence    of   specific

instances of a victim's sexual conduct" is not admissible in a

prosecution for forcible rape of a child unless "after an in camera

hearing on a written motion for admission of same and an offer of

proof . . . the court finds that the weight and relevancy of said

evidence is sufficient to outweigh its prejudicial effect to the

victim."   Id.

             Collins has consistently asserted in his post-trial

proceedings that the omitted evidence was sufficiently weighty to

be admissible because it established bias and a motive to lie on

the part of his accusers.          But as to how and why this is so,

Collins has been conclusory and cryptic.             In his brief on this

appeal, he elliptically asserts that the evidence would have given

his trial counsel a basis to argue that "[Pam], J.B. and C.V.B.

fabricated     accusations      against    Collins   in   retaliation      for

[Collins's sister's] suggesting that J.B.'s prior sexual assaults

should be addressed, and in order to preclude Collins's family from

pursuing legal action against J.B. and not because Collins had in

fact committed any such acts."              In his reply brief, Collins

modifies     this   assertion    somewhat    to    cite   as    motives   both

retaliation and a desire "to prevent further dissemination of


                                     -4-
information that J.B. had sexually abused Collins [sic] three

nieces."

           In denying a post-trial motion alleging ineffective

assistance of counsel, the same state trial court judge who had

presided over Collins's trial, and who would have ruled on any

evidentiary   issues   had   counsel   pressed   for   admission   of   the

evidence, rejected Collins's ineffective assistance of counsel

argument because "[e]vidence of J.B.'s past sexual conduct would

likely have been inadmissible because it did not show bias or

motive to lie."   The Massachusetts Appeals Court affirmed, finding

the evidence's admissibility was "dubious at best" and that, even

had it been admitted, it was "simply too attenuated to have

usefully shown a motive to lie" on the part of J.B., his mother, or

J.B.'s friend, C.V.B.    See Commonwealth v. Collins, 71 Mass. App.

Ct. 1113 (2008) (unpublished).     The Massachusetts Supreme Judicial

Court denied Collins's application for further appellate review in

a one line order. Commonwealth v. Collins, 451 Mass. 1108 (2008).

           Collins then filed a petition for habeas corpus in

federal district court, arguing, inter alia, that he received

ineffective assistance from his counsel in his state court trial.2

See Collins v. Roden, Civil Action No. 08-40217-FDS, 2012 WL


     2
        Collins has completed his term of imprisonment on these
convictions but remains on probation. Cf. Jackson v. Coalter, 337
F.3d 74, 79 (1st Cir. 2003) (holding that a prisoner is "in
custody," and therefore eligible for habeas relief, when on
probation).

                                  -5-
5866257, *2 (D. Mass. Nov. 16, 2012).             The district court denied

Collins's habeas petition, including his request for an evidentiary

hearing.    Id. at *3-8.     The district court nonetheless cautiously

concluded that a reasonable jurist could disagree with its ruling

on Collins's ineffective assistance claim and therefore granted a

certificate of appealability on that issue. See 28 U.S.C. § 2253.

This appeal followed.

                         II.    Standard of Review

            We review a district court's denial of habeas relief de

novo.     See, e.g., Shuman v. Spencer, 636 F.3d 24, 30 (1st Cir.

2011). Under the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 121 ("AEDPA"), and because

Collins's claim was "adjudicated on the merits in State court

proceedings," he may receive habeas relief only if the state court

adjudication:

        (1) 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; or

        (2) resulted in a decision that was based on an
        unreasonable determination of the facts in light of the
        evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

            Collins    argues      that,    in   denying   him     relief,   the

Massachusetts Appeals Court unreasonably applied Strickland v.

Washington,     466   U.S.   668    (1984),      which   governs    ineffective

assistance claims under the Sixth Amendment. Under AEDPA's "highly


                                      -6-
deferential" standard of review, to prevail on this theory Collins

would have to show that the Appeals Court could not have reasonably

concluded that he failed to prove he was entitled to relief under

Strickland's own "highly deferential" standard.         See Harrington v.

Richter, 131 S. Ct. 770, 789 (2011).

                            III.    Analysis

          To be entitled to relief under Strickland a defendant

must show "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."   Id. at 687.   Additionally, even if the performance of

Collins's trial counsel was seriously deficient, Collins would also

need to show that, had his counsel properly proffered the omitted

evidence, it is "reasonably likely" that the result of the criminal

proceeding would have been different. Strickland, 466 U.S. at 696.

"Reasonably likely," in this context, means that "[t]he likelihood

of a different result must be substantial, not just conceivable."

Harrington, 131 S. Ct. at 792.            While Strickland's "reasonably

likely" standard is not quite a "more-probable-than-not standard,"

the difference "is slight and matters only in the rarest case."

Id. (citations omitted).

          Collins's   effort   to    make     these   difficult   showings

encounters at the outset the observations of the Appeals Court that

the admissibility of the omitted evidence under Massachusetts's

rape shield law was "a dubious proposition at best."         Collins, 71



                                    -7-
Mass. App. Ct. at 1113.          We have no charter to question that

statement.     See   Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per

curiam) ("[A] state court's interpretation of state law, including

one announced on direct appeal of the challenged conviction, binds

a   federal    court   sitting    in     habeas   corpus"   even     if   that

interpretation is given in dicta in the state court opinion.).

With admissibility dubious at best, it can hardly be unreasonable

to conclude that admission would not have been reasonably likely

had the evidence been offered.          And if the evidence would likely

not have been admitted, it was not unreasonable for the Appeals

Court to conclude that the failure to proffer it in the face of

opposition by the prosecution and a skeptical trial judge did not

have a "substantial" likelihood of affecting the trial.

             Adding belt to suspenders, we also think the Appeals

Court was hardly unreasonable in regarding the probative force of

the evidence (and thus its likely impact on the jury's evaluation

of the record) as underwhelming.         Collins's claim that the omitted

evidence would have established a reason for Pam, J.B., and C.V.B.

to "retaliate" against him by fabricating false charges of sexual

abuse is twice diminished in its probative weight.                 First, the

acrimonious relationship between Pam and Collins, as revealed to

the jury, already made it clear that Pam had reason to desire to

cause Collins harm.     Second, according to Collins, J.B.'s alleged

abuse of the three nieces had long been a subject of discussion


                                       -8-
among the families, and had also prompted a prior report to

authorities.   This history reduces to a minor talking point the

probative force of any chronological nexus between the accusations

against J.B. and the lodging of a complaint against Collins.

          Collins's second theory about why the evidence shows bias

(that Pam wanted to use a charge against Collins to deter the

Collins family from making or further disseminating charges against

J.B.) is similarly implausible.      The deterrent force of such a

charge would have resided in its threat, not its use. If deterring

further dissemination of charges against J.B. were Pam's true

motivation, then actually calling the police (as she did) would

have been counterproductive.   Indeed, as Collins observes in his

reply brief, "the fact that Pam had made allegations against

Collins . . . spurred Collins' family to report J.B.'s sexual abuse

to the police."

          In a twist on his argument, Collins also seems to suggest

that the evidence would have allowed the jury to surmise that, by

first charging Collins, Pam (and her son) might have hoped to

create a basis for arguing that any later charge against J.B. was

itself a retaliatory fabrication by Collins's family.   Pam clearly

knew, though, that it would be easily demonstrated that the nieces'

accusations against J.B. long pre-dated the charge being brought

against Collins.




                               -9-
          For    all     of   these    reasons,    and   likely      more,   the

Massachusetts Appeals Court reasonably applied federal law in

rejecting Collins's claim of ineffective assistance of counsel.

                                IV.   Conclusion

          We    affirm    the    district    court's   denial   of    Collins's

petition for habeas corpus.

          So ordered.




                                      -10-
