                  Not for Publication in West’s Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit


No. 04-2406

                             GABRIEL CRUZ, III,

                          Petitioner, Appellant,

                                        v.

      MICHAEL T. MALONEY, COMMISSIONER OF THE MASSACHUSETTS
                    DEPARTMENT OF CORRECTION,

                           Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                     Before

                Torruella and Howard, Circuit Judges,
                  and Siler,* Senior Circuit Judge.


     John M. Thompson for petitioner.
     Eva M. Badway, Assistant Attorney General, Criminal Bureau,
Massachusetts Department of Attorney General, with whom Thomas F.
Reilly, Attorney General, was on brief, for respondent.


                              October 21, 2005




*Of the Sixth Circuit Court of Appeals, sitting by designation.
     SILER, Senior Circuit Judge.       Petitioner Gabriel Cruz, III

appeals the district court’s denial of his petition for a writ of

habeas corpus.    Cruz argues the state trial court improperly

instructed the jury and that defense counsel was ineffective for

failing to object to the erroneous jury instruction.     We AFFIRM.

                            I.   BACKGROUND

     In 1994, Cruz was part of a gang of four men who burglarized

two apartments using a baseball bat and a firearm.       Tragically,

seven-year-old Eve Rojas died of asphyxiation after her mouth and

nose were bound with duct tape. Cruz was subsequently convicted of

first-degree murder, three counts of burglary with assault on an

occupant, armed assault in a dwelling, four counts of stealing by

confining or putting in fear, armed robbery, armed assault with

intent to commit murder, and four counts of assault and battery by

means of a dangerous weapon.     See Commonwealth v. Cruz, 714 N.E.2d

813 (Mass. 1999).     Cruz’s first-degree murder conviction was

obtained under a felony-murder rule theory, and he was sentenced to

life in prison without parole.      His convictions were affirmed on

appeal except for his burglary convictions; they were vacated

because they merged with his first-degree murder conviction as

lesser-included offenses.    See id. at 823-24.   At trial, the court

instructed the jury that

     [t]he final element of the crime of felony murder, here,
     that the Commonwealth must prove, is that in the
     circumstances of this case, the defendant committed or
     attempted to commit the felony in question with a

                                  -2-
     conscious disregard for the risk to human life. The
     crime, the felony of burglary with assault on an
     occupant, is a crime that is defined in our law as
     inherently dangerous to human life.

     If you find that the Commonwealth has proved beyond a
     reasonable doubt, that the defendant, Gabriel Cruz,
     committed, as a joint venturer, the unlawful killing of
     Eve Rojas, while in the course of committing the offense
     of a burglary with an assault on an occupant, you would
     be warranted in finding, without more, that he acted with
     a conscious disregard for the risk to human life, because
     that particular felony is inherently dangerous to human
     life.

Cruz’s counsel did not object to this instruction.

     In 2000, Cruz petitioned for habeas corpus relief pursuant to

28 U.S.C. § 2254.   A United States magistrate judge issued a report

and recommendation denying Cruz’s petition.    The magistrate judge

later issued a supplemental report and recommendation again denying

Cruz’s petition.     The district court adopted both reports and

recommendations, concluding that Massachusetts state law permitted

the trial court’s instruction, the United States Court of Appeals

for the First Circuit had rejected a similar argument, and Cruz’s

counsel was not ineffective because the instruction was consistent

with state-law “settled precedent.”

     Nevertheless, the district court granted Cruz a certificate of

appealability (“COA”) on two issues:    (1) whether the trial court

violated Cruz’s rights to trial by jury and due process of law by

instructing the jury that the felony of burglary with assault on an

occupant is inherently dangerous to human life; and (2) whether

Cruz’s counsel was ineffective in failing to object to that jury

                                 -3-
instruction.    This court denied Cruz’s motion for an expanded COA.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(2).

                               II.   DISCUSSION

      Normally, this appeal would be governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).                However,

“AEDPA’s strict standard of review only applies to a ‘claim that

was   adjudicated   on   the   merits   in   state   court   proceedings.’”

Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (quoting 28

U.S.C. § 2254(d)).        The Massachusetts Supreme Judicial Court

(“SJC”) decided Cruz’s jury instruction claim solely as a matter of

state law.     See Cruz, 714 N.E.2d at 818-19, 822 n.6.          Therefore,

our review is de novo.          See Fortini, 257 F.3d at 47.        Cruz’s

ineffective assistance of counsel claim is also reviewed de novo.

See id.

1.    The Jury Instruction

          Cruz argues that the trial court violated his rights to a

fair trial and due process because the instruction established a

conclusive presumption that relieved the state of proving an

essential element of the crime beyond a reasonable doubt – that he

acted with a conscious disregard for the risk to human life.

      The SJC analyzed the issue as follows:

      3.    Inherently dangerous felony instruction.      The
      defendant asserts that the judge improperly stated that
      the felony of burglary with assault on an occupant is a
      crime that is inherently dangerous to human life. The
      defendant’s argument ignores settled precedent.     See
      Commonwealth v. Selby, [686 N.E.2d 1316 (Mass. 1997)]

                                      -4-
     (armed assault in dwelling “by its very nature . . .
     ‘inherently dangerous to human life,’ Commonwealth v.
     Claudio, 418 Mass. 103, 108, 634 N.E.2d 902 [1994] [armed
     burglary in dwelling with assault therein, under [Mass.
     Gen. Laws Ann. ch.] 266, § 14, is inherently dangerous
     felony and supported conviction for felony-murder”]).

Cruz, 714 N.E.2d at 818-19.             The Cruz court reiterated that

“burglary with assault on an occupant is inherently dangerous to

human life, and thus, the conscious disregard for human life

requisite for a finding of malice is presumed.”            Id. at 822 n.6.

     Errors of state law are not a cognizable basis for federal

habeas   relief,   and   this   court   does   not    re-examine   the   SJC’s

determination of a state-law question.         See Lewis v. Jeffers, 497

U.S. 764, 780 (1990).       “Federal courts sitting in habeas must

accept state court rulings on state law issues.             An inquiry into

the correctness of a ruling on state law issues ‘is no part of a

federal court’s habeas review of a state conviction.’”             Rodriguez

v. Spencer, 412 F.3d      29, 37 (1st Cir. 2005) (quoting Estelle v.

McGuire, 502 U.S. 62, 67 (1991)).          The district court concluded

that Cruz’s claim “involv[ed] complicated matters of felony murder

doctrine under state common law, not federal constitutional law[.]”

     Cruz’s habeas petition must be denied because Massachusetts

law settles the issue.     See McMillan v. Pennsylvania, 477 U.S. 79,

85 (1986) (states are left with the authority to prevent and deal

with crime).   “To make out a case of murder, the prosecutor need

only establish that the defendant committed a homicide while

engaged in the commission of a felony[.]”            Commonwealth v. Gunter,

                                    -5-
692 N.E.2d 515, 525 (Mass. 1998) (citations omitted).                Thereafter,

“[t]he effect of the felony-murder rule is to substitute the intent

to    commit   the    underlying     felony    for   the   malice   aforethought

required for murder.            Thus, the rule is one of ‘constructive

malice.’”      Id. (citations omitted).        In Commonwealth v. Selby, 686

N.E.2d 1316, 1320 (Mass. 1997), the SJC reapplied the holding of

Commonwealth v. Claudio, 634 N.E.2d 902 (Mass. 1994), that certain

felonies by their very nature are inherently dangerous, including

burglary with assault on an occupant and armed assault in a

dwelling, so as to justify felony-murder convictions.

       Here, the SJC conclusively determined that the felony-murder

rule was properly applied to Cruz because the felony of burglary

with assault on an occupant is inherently dangerous to human life.

See Commonwealth v. Scott, 701 N.E.2d 629, 632 (Mass. 1998) (“There

is no need to show a ‘conscious disregard for human life because

the    risk    is    implicit   in   the    intent   required   for   [certain]

felon[ies]’” and “[it] is not the province of the jury to determine

whether a felony is inherently dangerous.”) (citation omitted)

(emphasis added).        To reiterate, we cannot second-guess this state

law decision on habeas review.             See Pulley v. Harris, 465 U.S. 37,

41 (1983) (“A federal court may not issue the [habeas corpus] writ

on the basis of a perceived error of state law.”); Watkins v.

Callahan, 724 F.2d 1038, 1043 (1st Cir. 1984) (rejecting arguments

identical to Cruz’s premised on identical rationale).


                                        -6-
     This is not a case where the trial court directed a guilty

verdict due to a conclusive presumption of guilt. Cf. Sandstrom v.

Montana, 442 U.S. 510, 522 (1979).                  Unlike the burglary with

assault on an occupant charge, the trial court did not instruct the

jury that “stealing by confining or putting in fear” is inherently

dangerous.      This is correct.     See Scott, 701 N.E.2d at 632; Cruz,

714 N.E.2d at 821-22 (“burglary with assault on an occupant” is

inherently dangerous, whereas “stealing by confining or putting in

fear” was not specifically defined as such).                   The trial court’s

instruction boiled down to an issue of Massachusetts state law and

Cruz’s attempt to recast the issue in a constitutional light is

unavailing. The prosecution still had to prove all elements of the

charged crimes beyond a reasonable doubt.                    Although “conscious

disregard” remains an element of the felony, Massachusetts has

resolved   to    substitute    it    for       malice   in   certain   inherently

dangerous felonies.

     Moreover,     this    claim    is   procedurally        defaulted.   Cruz’s

counsel    did    not     object    to    the     complained-of     instruction.

Therefore, the SJC had to “determine whether the error created a

substantial risk of a miscarriage of justice.” See Commonwealth v.

Alphas, 712 N.E.2d 575, 580 (Mass. 1999) (citations omitted);

Commonwealth v. Curtis, 632 N.E.2d 821, 825 (Mass. 1994) (“[A]n

appellate court considers an issue not properly preserved for

appellate review only on the ‘substantial risk of a miscarriage of


                                         -7-
justice’ standard . . . .”); Mass. R. Crim. P. 24(b) (“No party may

assign as error the giving or the failure to give an instruction

unless he objects thereto before the jury retires to consider its

verdict, specifying the matter to which he objects and the grounds

of his objection.”).1          Known as the “contemporaneous objection

rule,” see Commonwealth v. Fluker, 385 N.E.2d 256, 261 (Mass. 1979)

(failure   to   object    to    instruction     precludes    state   appellate

review), this court has held that

     [i]n cases where defense counsel fails to make a timely
     objection, the state does not waive the objection, and
     the appellate decision rested on that ground, that is “a
     classic example of a procedural default, and petitioner
     can succeed in his habeas case only by showing cognizable
     cause for, 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.”

Brewer   v.   Marshall,    119    F.3d   993,    1001-02    (1st   Cir.   1997)

(citations omitted).

     Massachusetts       consistently      applies    the     contemporaneous

objection rule and has not waived it here.           See Gunter v. Maloney,

291 F.3d 74, 79 (1st Cir. 2002) (“The SJC regularly enforces the

rule that a claim not raised is waived.”).                  After considering

Cruz’s unpreserved argument and reviewing the instruction, the Cruz

court ruled that his claim “ignore[d] settled precedent” and there

was no substantial risk of a miscarriage of justice.                 Cruz, 714


1
 Cruz concedes that, under Massachusetts law, his failure to object
to the instruction constituted a procedural default which deprived
him of the right to appellate review of this issue.

                                     -8-
N.E.2d at 818-19. This conclusion, accordingly, is an “independent

and adequate state ground” barring review. See Brewer, 119 F.3d at

999.    Since Cruz “defaulted his federal claims in state court

pursuant to an independent and adequate state procedural rule,

federal habeas review of [his] claims is barred unless [he] can

demonstrate cause for the default and actual prejudice as a result

of the alleged violation of federal law,” or if he can show that

“failure to consider the claims will result in a fundamental

miscarriage of justice.”       See Coleman v. Thompson, 501 U.S. 722,

750 (1991).

       “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.”

Burks v. Dubois, 55 F.3d 712, 716-17 (1st Cir. 1995).           The only

potential cause available to Cruz is defense counsel’s failure to

object to the instruction.     See Gardner v. Ponte, 817 F.2d 183, 186

(1st Cir. 1987).    As will be demonstrated, however, Cruz cannot

establish cause since defense counsel’s failure to object did not

constitute ineffective assistance of counsel.         See Burks, 55 F.3d

at 716-17.    Nor can Cruz demonstrate that he was prejudiced:        the

jury was instructed in accordance with Massachusetts law.                 See

Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999) (“[T]he

SJC’s   decision   on   what   is   a   miscarriage   of   justice   is    a


                                    -9-
determination made under state law[.]”).               There was no substantial

risk of a miscarriage of justice.

        Accordingly, we reject Cruz’s claim that the trial court

violated his constitutional rights by instructing the jury that the

felony of burglary with assault on an occupant is a crime that is

inherently dangerous to human life.

2.     Ineffective Assistance of Counsel

        Cruz also argues that he is entitled to habeas relief because

his counsel was constitutionally ineffective in failing to timely

object     to    the   jury    instruction.         Pursuant    to   Strickland   v.

Washington, 466 U.S. 668 (1984), Cruz is required to “show that

counsel        performed      unreasonably    and    that      prejudice   resulted

therefrom.” United States v. Fornia-Castillo, 408 F.3d 52, 65 (1st

Cir. 2005) (quoting United States v. Mena-Robles, 4 F.3d 1026, 1034

(1st Cir. 1993)).

        Cruz    insists    that   his   counsel’s     “ignorance     [and]   error”

resulted in the failure to object, which was not a “tactical or

strategic” decision.            See Commonwealth v. Gelpi, 625 N.E.2d 543,

544 (Mass. 1994) (failure to object to instruction constituted

ineffective assistance of counsel).2                Regardless of performance,

Cruz was not prejudiced. Massachusetts law is clear that the trial

court’s jury instruction was consistent with settled precedent. In

Massachusetts, “burglary with assault on an occupant is inherently


2
    Cruz again concedes procedural default.

                                        -10-
dangerous to human life, and thus, the conscious disregard for

human life requisite for a finding of malice is presumed.”               See

Cruz, 714 N.E.2d at 822 n.6 (citing Claudio, 634 N.E.2d at 906-07).

Failure to object to an accurate jury instruction does not qualify

as ineffective assistance of counsel. See Commonwealth v. Jackmon,

822 N.E.2d 754, 761-62 (Mass. App. Ct. 2005) (defense counsel’s

failure to object to felony-murder instruction was not ineffective

where    instruction   was   correct).    Even   if   Cruz’s   counsel   had

objected, “there is [not] a reasonable probability that, but for

counsel’s unprofessional error[], the result of the proceeding

would have been different.”      Ouber v. Guarino, 293 F.3d 19, 25 (1st

Cir. 2002) (quoting Strickland, 466 U.S. at 694).         This claim also

fails.

     We AFFIRM the district court’s denial of Cruz’s petition for

a writ of habeas corpus.




                                   -11-
