          UNITED STATES COURT OF APPEALS
               FOR THE FIRST CIRCUIT


No. 00-1140

                     KENNETH P. PHOENIX,

                    Petitioner, Appellant,

                              v.

                       JAMES MATESANZ,

                    Respondent, Appellee.




                         ERRATA SHEET


     The opinion of this Court issued on December 1, 2000, is
amended as follows:

    On p. 10, line 29 through p. 11, line 23, should read:

"Phoenix v. Commonwealth, No. SJ-96-0571, at 4-5 (SJC Memorandum,
Fried, J., May 8, 1997).

     The strategy to which Justice Fried referred was described in
the prior decision of the full SJC, see Commonwealth v. Phoenix, 409
Mass. 408, 421 n.8 (1991), as well as in a subsequent Superior Court
decision refusing to grant an evidentiary hearing on the issue, see
Commonwealth v. Phoenix, No. 87-068, at 6-7 (Superior Court
Memorandum, Moriarty, J., March 18, 1996) [hereinafter Phoenix, March
18 Memorandum]. In denying leave to admit into the record on direct
appeal the Wraxall affidavit, the SJC referred to defendant's
arguments that he did not have Wraxall testify because of the expense
and because of his belief that Schanfield's testimony would expose
the unreliability of the critical test. The SJC concluded that
"[t]hese considerations were purely ones of trial strategy, and,
therefore, there is no reason to permit the filing of the affidavit."
Phoenix, 409 Mass. at 421 n.8. Similarly, although Judge Moriarty
formally relied on waiver in denying defendant's request for an
evidentiary   hearing on ineffective assistance, he made it quite clear
that he did   not think the failure to call Wraxall was ineffective
assistance,   and, more generally, he praised trial counsel's
performance   in general and at the trial. Phoenix, March 18
Memorandum,   at 7.

     As for the fingerprint evidence, Judge Moriarty plainly found
that the failure to call MacDonell was a strategic one. See Phoenix,
March 18 Memorandum, at 8 ("[Bennett] made a tactical decision - and
probably a wise one.").

     Hence, we must assess whether the respective state court
applications of Strickland to these ineffective assistance claims was
in fact objectively unreasonable. We make this assessment ..."

    On p. 14, lines 14-21, should read:

     "We also cannot conclude that Bennett's failure to send
MacDonnell additional photographs for review during and after trial
constituted ineffective assistance of counsel. Although it turned
out that MacDonnell's opinion of the additional photographs would
probably have been helpful at trial, Bennett's choice not to pursue
further investigation on this front was a reasonable one at trial.
MacDonnell's partially provided expert opinion had lowered Bennett's
expectations and Bennett had adequately cross-examined ..."

    On p. 17, lines 12-19, should read:

"defense witness). Upon consideration of the record and Wraxall's
affidavit, we agree with the district court's determination that
Bennett's action was within the bounds of permissible strategic
choice. Given this independent assessment, we cannot say that the
same conclusion by the state court was objectively unreasonable, even
if it may not have satisfied the formal requirements of a Strickland
analysis. Thus we may not grant a writ of habeas corpus on this
basis."

    On p. 18, lines 21-24, should read:

     "The district court thoroughly and carefully considered
Phoenix's claim of ineffective assistance of counsel. We agree with
its analysis and conclusion, and therefore affirm the denial of the
writ of habeas corpus."
