
USCA1 Opinion

	




          March 28, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1656                                    JUAN R. ORTIZ,                                Petitioner, Appellant,                                          v.                                    LARRY DUBOIS,                                Respondent, Appellee.                                 ____________________                                     ERRATA SHEET            The opinion of this court issued on March 24, 1994, is amended  as        follows:            On page  17, lines 4-6, change  "we do not  believe that appellant        could meet  the burden  recently placed on  him by the  Supreme Court:        that the instructional error"  to "we believe that the  government has        met its burden of demonstrating that the error did not".            On page 17, line 6, change "had" to "ha[ve]".            On page 24, line 14:  Change "February" to "March".                            UNITED STATES COURT OF APPEAL                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1656                                    JUAN R. ORTIZ,                                Petitioner, Appellant,                                          v.                                    LARRY DUBOIS,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John  M. Thompson,  with whom Linda  J. Thompson was  on brief for            _________________             __________________        appellant.            Nancy  W.  Geary, Assistant  Attorney  General,  with  whom  Scott            ________________                                             _____        Harshbarger, Attorney General, was on brief for appellee.        ___________                                 ____________________                                    March 24, 1994                                 ____________________                      BOWNES, Senior  Circuit Judge.   This is  an appeal                      BOWNES, Senior  Circuit Judge.                              _____________________            from  the denial  of a  habeas petition  filed by  Juan Ortiz            challenging   his  Massachusetts   felony-murder  conviction.            Appellant argues that his  right to due process of  law under            the Fourteenth  Amendment was violated because:  (1) the jury            was not instructed to  find all of the essential  elements of            felony-murder    beyond   a   reasonable   doubt;   (2)   the            Massachusetts  Supreme  Judicial  Court  (SJC)  affirmed  his            felony-murder   conviction  applying   a  legal   theory  not            presented  to  the  jury;  and  (3)  there  was  insufficient            evidence  to support  his felony-murder conviction  under the            Commonwealth's theory  of guilt.   The district  court denied            the  petition.   We  affirm,  but  for reasons  substantially            different than those expressed by the court below.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      We  commence with  a  recitation of  the  pertinent            facts.   Appellant's convictions are  based on the  events of            November 12, 1985.  That evening,  appellant and his brother,            Eduardo "Crazy Eddie" Ortiz, left their father's apartment at            8 Stebbins Street in Springfield, Massachusetts to search for            Jose  Rodriguez.   Apparently  there was  an ongoing  dispute            between Eddie  and various  members of the  Rodriguez family.            In addition, there was evidence that several members  of that            family, one who was believed to be Jose, paid a  visit to the                                         -2-                                          2            Stebbins Street apartment on the day  in question looking for            Eddie.  One of the visitors allegedly carried a gun.                      Prior to departing with appellant, Eddie procured a            .357 Magnum and ammunition  from his brother-in-law, which he            placed in his pants pocket.  There was evidence to the effect            that appellant agreed to accompany Eddie in order  to provide            "back up."   On the other hand, appellant introduced evidence            that he  vehemently opposed  his brother's mission,  and went            along in order to serve as a voice of reason.                      With Eddie  behind the  wheel and appellant  at his            side, the two drove off  in search of their prey.   En route,            Eddie pulled over to the curb, removed the gun and ammunition            from  his pocket,  loaded  the  gun,  and placed  it  between            himself  and  his  brother.    After  circling  the  intended            victim's  block several  times, the  brothers were  unable to            locate  him, and returned to  their father's apartment.  Upon            their arrival in front of 8 Stebbins Street, a police cruiser            manned by two officers pulled up behind them.  The driver  of            the cruiser got out  and approached the driver's side  of the            Ortiz vehicle.  As the officer attempted to open the driver's            side door, he was shot  in the face and killed by Eddie.   By            that time the second officer was trying to pull appellant out            of the  passenger side door.   Eddie shot  and killed  him as            well.                                         -3-                                          3                      There was evidence that, as the officers approached            the vehicle, both  appellant and his brother reached  for the            gun, but  Eddie got to  it first.   After the  shooting, both            fled  the   scene.     Appellant   was  apprehended   shortly            thereafter.  Eddie committed suicide before he could be taken            into custody.                      On November  22, 1985  a five count  indictment was            returned against appellant.  He  was charged with two  counts            of second degree murder,  one for the death of  each officer,            unlawful carrying of a  firearm under his control in  a motor            vehicle, and  attempted assault and battery  with a dangerous            weapon, all felonies.1   The Commonwealth informed  appellant            that, with  respect to  the  murder indictment,  it would  be            proceeding on a  theory of felony-murder.   It designated the            latter  two  felonies  as  predicates for  the  felony-murder            charge.                      Appellant's trial  commenced in January  1987.   At            the close of the  Commonwealth's case and again at  the close            of  all  the  evidence  appellant  unsuccessfully  moved  for            findings  of  not  guilty on  all  counts.    The jury  found            appellant guilty  on all  counts.   On attempted  assault and            battery by means  of a dangerous  weapon, the jury  convicted                                            ____________________                 1Appellant was also charged with unlawful  possession of            ammunition, a misdemeanor.  Although appellant was ultimately            convicted on  this count, by agreement  with the Commonwealth            he was never sentenced on it.                                         -4-                                          4            appellant of being a "joint venturer" with his brother.  With            regard to the  unlawful carrying charge, the jury  found that            appellant "jointly possessed"  the gun with his  brother.  By            special verdict, the jury  found the unlawful carrying charge            to be the sole  predicate felony underlying the felony-murder            convictions.                      Subsequent to the close  of the evidence but before            the judge instructed the  jury, the Commonwealth informed the            court that, in connection  with the unlawful carrying charge,            it would not  be proceeding  on a joint  venture theory,  but            rather  on a basis that appellant "jointly possessed" the gun            with his  brother.  As  a result, the judge  did not instruct            the  jury  on joint  venture  principles as  to  the unlawful            carrying charge.2                                            ____________________                 2At  a  pre-charge conference  after  the  close of  the            evidence  and  just  prior   to  the  charge,  the  following            discussion took place:                           The  Court:    As  I  understand the                      Commonwealth's  case,  the joint  venture                      theory applies to the attempted A&B.                           Commonwealth:  Yes.                           The Court:  You understand that?                           Defendant:  I understand that.                           The Court:  It doesn't apply  to the                      carrying of  the gun other than  its your                      contention there is  joint possession  of                      the gun.                           Commonwealth:     Right,  and  joint                      carrying,  in  that   sense,  when   they                      stopped  the car,  there's only  one gun.                      He took out the cartridges and loaded the                      gun.   In essence, at that  stage, we are                      saying  that both  of them  were carrying                      the gun.                                         -5-                                          5                      After  the jury  rendered  its  verdict,  appellant            renewed  his motion for findings  of not guilty.   The motion            was denied in its  entirety, and appellant appealed.   On its            own  initiative, the  SJC removed the  case from  the Appeals            Court.   The SJC  affirmed the convictions  for felony-murder            and unlawfully carrying a  firearm in a vehicle.   Finding no            overt act, however, it  reversed the conviction for attempted            assault and battery by means of a dangerous weapon.                      On  direct appeal,  appellant alleged,  inter alia,                                                              _____ ____            that  the evidence  was insufficient  to support  his felony-            murder  conviction, and  that the  jury instructions  on this            charge  were  defective.     The  SJC  rejected   appellant's            sufficiency claim but  indicated that the  jury had not  been            correctly instructed.  Commonwealth v. Ortiz, 560 N.E.2d 698,                                   ____________    _____            701-02 (Mass. 1990).  Because appellant had not made a timely            objection to the jury charge, however, the SJC did not review            the error for constitutional infirmity, but instead looked to            see whether the error  created a substantial likelihood of  a            miscarriage of justice.  Id. at 701.  The court  held that it                                     ___            did not.  Id. at 702.                      ___                      Appellant  then  filed a  petition  for  a writ  of            habeas  corpus in  the United States  District Court  for the                                            ____________________                           The Court:  When I talk  about joint                      enterprise  and  joint  possession, I  am                      talking  about two  different things.   I                      will give it to the jury that way.                                         -6-                                          6            District of Massachusetts.  The district court ruled that the            jury instructions on felony-murder  were correct and that the            evidence   supporting   this   charge  was   constitutionally            sufficient.  This appeal ensued.                                         -7-                                          7                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                      Appellant's first argument is that his right to due            process  was  violated  because  the jury  was  not  properly            instructed   on   the   elements   of   felony-murder   under            Massachusetts law,  and therefore did not  find every element            of the offense beyond a reasonable doubt.  See In re Winship,                                                       ___ _____________            397 U.S. 358 (1970).   The Commonwealth steadfastly maintains            that there was no error in the jury instructions.                      On  the charge  of  felony-murder the  trial  court            instructed the jury as follows:                            The   felony-murder    rule,   where                      applicable,  is based on  the theory that                      the  intent  to  commit  the  underlying,                      independent felony is  equivalent to  the                      malice   aforethought  necessary   for  a                      murder conviction.                           In  order  to  find   the  Defendant                      guilty of second degree murder  under the                      felony murder rule, the Commonwealth must                      prove the following three elements beyond                      a reasonable doubt.                           First,  that  there was  an unlawful                      killing.                           Second,   that   the  homicide   was                      committed in  the course  of a felony  or                      attempted   felony   which   felony   was                      independent of the homicide.                           Third, that  under the circumstances                      of this case  the Defendant committed the                      felony   or   attempted  felony   with  a                      conscious disregard for human life.            Although  the  judge  elaborated  more fully  on  the  second            element,   he   incorporated   by  reference   his   previous            definitions   of   the  two   possible   predicate  felonies:                                         -8-                                          8            attempted assault and battery by means  of a dangerous weapon            and unlawful carrying of a firearm in a motor vehicle.3                      On   the  unlawful   carrying   charge  the   judge            instructed  the jury  that  the prosecution  needed to  prove            three elements beyond a reasonable doubt:                           First,  that   the  Defendant,  Juan                      Ortiz, carried a firearm on his person or                      under his control in a motor vehicle.                           Second,  that  what  was carried  or                      that  which  was  under  the  Defendant's                      control  met  the  definition of  firearm                      under our law ....                           And third, that  the Defendant  knew                      that he was carrying the firearm or  that                      he had the firearm under his control in a                      vehicle.                      ...                           Carrying  occurs when  the Defendant                      knowingly   has   more   than   momentary                      possession  or  control   of  a   working                      firearm and  moves it from  one place  to                      another.                      ...                           The   control   exercised   by   the                      Defendant over the area where  the weapon                      is found need not have been exclusive.  A                      Defendant  may have  control of  a weapon                      jointly  with  another  if  he  is  in  a                      position to exercise dominion  or control                      over the weapon and that [sic] he intends                      to do so.                           With  regard  to   the  element   of                      control,  the   Commonwealth  must  prove                      beyond a reasonable doubt that Juan Ortiz                      knew of the presence and the location  of                      the  weapon in  the  motor vehicle,  that                      Juan Ortiz  was in a position  to be able                      to exercise dominion and control over the                      weapon   together   with  an   intent  to                      exercise such dominion and control.                                            ____________________                 3The  jury was  also instructed  on the  lesser included            offense of attempted assault by means of a dangerous weapon.                                         -9-                                          9                      The  judge  then  explained  what  the  prosecution            needed to  prove in  order to convict  appellant of  unlawful            carrying, with  specific reference to  the evidence presented            at trial:                           [O]ne,  that   the  Defendant,  Juan                      Ortiz, was a passenger in the  AMC Hornet                      driven  by  Eduardo   when  they  left  8                      Stebbins Street and at the time they were                      apprehended by the two police officers on                      their return.                           And,  two, that  the firearm  was in                      the AMC Hornet and  that Juan Ortiz  knew                      that it was there.                           And,  three,  that  Juan  Ortiz  had                      joint dominion and control of the firearm                      with  Eduardo  and  intended to  exercise                      dominion and control.                      Under the felony-murder  rule in Massachusetts, "`a            homicide  committed  during   the  commission  or   attempted            commission of  a felony is  murder.'"  Commonwealth  v. Pope,                                                   ____________     ____            549 N.E.2d  1120, 1123 (Mass. 1990)  (quoting Commonwealth v.                                                          ____________            Silva, 447 N.E.2d  646, 652  (Mass. 1983)).   The common  law            _____            doctrine  of felony-murder  is  one of  constructive  malice,            which  allows  the prosecution  to  substitute  the mens  rea            required  for  the underlying  felony for  the state  of mind            required for murder.  See Commonwealth v. Balliro, 209 N.E.2d                                  ___ ____________    _______            308, 312 (Mass. 1965).   It thus relieves the  prosecution of            its  burden  of  proving  the  essential  element  of  malice            aforethought.   Id.  Nonetheless,  "`[n]o person can  be held                            ___            guilty  of homicide  unless  the act  is  either actually  or            constructively  his, and it cannot be his act in either sense                                         -10-                                          10            unless  committed by  his own  hand or  by someone  acting in            concert  with him  or in  furtherance of  a common  object or            purpose.'"  Balliro, 209  N.E.2d at 312 (quoting Commonwealth                        _______                              ____________            v.  Campbell, 7  Allen  541,  544  (1863)).   "`Without  such                ________            limitation, a person might be held responsible for acts which            were  not  the  natural   or  necessary  consequence  of  the            enterprise . . . in which he was engaged, and  which he could            not  either in fact or law be  deemed to have contemplated or            intended.'"   Commonwealth  v. Burrell,  452 N.E.2d  504, 506                          ____________     _______            (Mass. 1983) (quoting Campbell, 7 Allen at 544).                                  ________                      This "limitation" gives  rise to the  joint venture            or joint  enterprise requirement.   Under Massachusetts  law,            "one who  aids, commands, counsels, or  encourages commission            of  a crime while sharing with the principal the mental state            required for the crime is [a joint venturer and is therefore]            guilty as a principal  . . . ."   Burrell, 452 N.E.2d at  505                                              _______            (quoting Commonwealth  v. Soares, 387 N.E.2d  499, 506, cert.                     ____________     ______                        _____            denied, 444 U.S. 881 (1979)).            ______                      For the  purposes of  this case, the  joint venture            requirement  operates  in  the  following  manner.    When  a            defendant  is accused  of personally  killing another  in the            course  of committing a felony, then his intent to commit the            underlying felony may be substituted for the malice necessary            for a  murder conviction.    If, on  the  other hand,  it  is            unclear  which one  of several  co-felons killed  the victim,                                         -11-                                          11            then the Commonwealth  must prove  the existence  of a  joint            venture  to commit the underlying felony in order to obtain a            felony-murder conviction  against any of the  co-felons.  See                                                                      ___            Burrell,  452   N.E.2d  at   505-06.    Similarly,   where  a            _______            defendant's  co-felon  was the  actual  killer,  in order  to            convict the defendant of felony-murder, the state is required            to  prove  the existence  of a  joint  venture to  commit the            underlying felony.    See Ortiz,  560 N.E.2d  at 700  (citing                                  ___ _____            cases).                      The  Commonwealth was  required  to prove  beyond a            reasonable doubt that appellant intentionally  assisted Eddie            in the commission  of the  felony of unlawful  carrying of  a            firearm in  a motor  vehicle,  sharing with  his brother  the            mental state required for  that crime.  See Pope,  549 N.E.2d                                                    ___ ____            at 1123.  On appellant's direct appeal the SJC held:                           In order to invoke the felony-murder                      rule in  this case, the  Commonwealth was                      required to prove in that regard that the                      defendant  intentionally  encouraged   or                      assisted Eddie Ortiz in the commission of                      a felony and that he did so while sharing                      with   Eddie   Ortiz  the   mental  state                      required for that crime.            Ortiz, 560 N.E.2d  at 700.   The SJC then  defined the  other            _____            elements necessary to prove felony-murder.                      Appellant maintains that the  failure to include  a            joint  venture instruction  in connection  with the  unlawful            carrying  charge rendered the  felony-murder instruction with            the carrying charge as the predicate felony defective because                                         -12-                                          12            it  did not  render him  responsible for  Eddie's acts.   The            Commonwealth argues, consistent with its  position throughout            appellant's  case, that  "Massachusetts  state law  does  not            require  a  joint venture  instruction  where,  as here,  the            predicate felony is a possessory crime . . . ."4                      Faced with the SJC's clear statement on the matter,            we have no choice but to agree with appellant.  The SJC ruled            that  Ortiz could  not be  found guilty  of felony  murder on            these facts unless the  Commonwealth proved that Ortiz shared            with  Eddie  the  mental  state required  for  the  predicate            felony.  Id.  But joint possession, the only theory presented                     ___            by  the Commonwealth,  does  not require  proof of  concerted            action or  shared state of mind,  and thus, does  not offer a            basis  for  vicarious  liability  for the  criminal  acts  of            others.   We  find  it incredible  that the  Commonwealth has            steadfastly  refused to  recognize  the defects  in the  jury            instruction,  especially  in  light  of  the  SJC's   careful            explanation of what the  Commonwealth was required to prove.5                                            ____________________                 4In  its brief to  the SJC on  appellant's direct appeal            the  Commonwealth argued  that, "joint  enterprise and  joint            possession may not necessarily  be one and the same,  but, as            these theories apply  to the facts of this  case, there is no            distinction."  Commonwealth's  Brief to the  Supreme Judicial            Court at 18.                 5Of course, the  law of  Massachusetts is  what the  SJC            says it is.   See Cola v. Reardon, 787 F.2d 681, 688 n.5 (1st                          ___ ____    _______            Cir.), cert. denied,  479 U.S. 930 (1986); Tarrant  v. Ponte,                   _____ ______                        _______     _____            751 F.2d 459, 464 (1st Cir. 1985).                                         -13-                                          13            In  fact, even  the SJC  acknowledged that  the jury  was not            properly instructed.  See Ortiz, 560 N.E.2d at 702.                                  ___ _____                      On  direct  appeal, appellant  argued instructional            error.  But, because he failed to timely object to the charge            as required by the Massachusetts contemporary objection rule,            see Mass. R. Crim.  P. 24(b), the SJC declined to  review his            ___            claim on  the  merits  and instead  limited  its  inquiry  to            whether  the error gave rise to a substantial likelihood of a            miscarriage  of   justice.    Ortiz,  560  N.E.2d  at  702.                                            _____            Accordingly, before  we can decide  whether the instructional            error rises to the level of prejudicial constitutional error,            we  must   determine,  as   a  preliminary  matter,   whether            appellant's claim is barred  from federal habeas review under            the procedural default rule of  Wainwright v. Sykes, 433 U.S.                                            __________    _____            72 (1977).                      Wainwright  held that the  failure to timely object                      __________            at  trial  to  an  alleged  error  as  required  by  a  state            contemporaneous  objection  rule constitutes  an "independent            and adequate  state ground"  sufficient to foreclose  federal            habeas corpus review of the  alleged error.   Id. at 84.6  In                                                          ___                                            ____________________                 6A waiver  of the adequate and  independent state ground            arises where the state's highest court declines  to affirm on            the basis  of state law and conducts  a "detailed examination            of federal law and federal cases  . . . necessary to decide a            specific question of  federal law."  McCown  v. Callahan, 726                                                 ______     ________            F.2d 1, 3 (1st Cir.), cert. denied, 469  U.S. 839 (1984); see                                  _____ ______                        ___            Doucette  v.  Vose, 842  F.2d 538,  540  (1st Cir.  1988) (no            ________      ____            waiver unless state court makes it "reasonably clear that its            reasons  for affirming  a conviction  rest upon  its  view of                                         -14-                                          14            order to escape from the preclusive  effect of his procedural            default, appellant is obligated to show both "cause" for, and            "prejudice" from,  his noncompliance with  the Commonwealth's            contemporaneous  objection rule.    Id. at  86-87; Murray  v.                                                ___            ______            Carrier, 477  U.S. 478, 485  (1986).  After  scrutinizing the            _______            record, we  can find no  indication of cause  for appellant's            failure   to   comply  with   Massachusetts'  contemporaneous            objection rule.  Even assuming cause, however,  our review of            the record reveals that appellant cannot meet the high burden            of  showing  actual  prejudice.    To   scale  this  wall,  a            petitioner  must demonstrate "not merely that the errors at .            . . trial created  a possibility of prejudice, but  that they            worked to his actual  and substantial disadvantage, infecting            his entire  trial with  error of  constitutional dimensions."            United States v. Frady, 456 U.S. 152, 170 (1982).            _____________    _____                      Absent a  showing  of "cause"  and  "prejudice,"  a            procedural default may still be excused where failure to hear            the  claim  would result  in  a  "fundamental miscarriage  of            justice."  Murray, 477 U.S. at 495-96.  This exception may be                       ______                                            ____________________            federal law").  Since the SJC affirmed solely on the basis of            Massachusetts   law,   and   did  not   reach   the   federal            constitutional question raised  in appellant's direct appeal,            it  did  not  waive his  procedural  default.    See Tart  v.                                                             ___ ____            Commonwealth of Mass., 949 F.2d 490, 496 (1st Cir. 1991) (SJC            _____________________            review for substantial likelihood of a miscarriage of justice            is a  state law review  and does  not constitute a  waiver of            procedural default); Puleo v. Vose, 830  F.2d 1197, 1200 (1st                                 _____    ____            Cir. 1987), cert. denied, 485 U.S. 990 (1988) (same); Gardner                        _____ ______                              _______            v. Ponte, 817  F.2d 183,  185 (1st Cir.),  cert. denied,  484               _____                                   _____ ______            U.S. 863 (1987) (same).                                         -15-                                          15            invoked   where  "a  constitutional  violation  has  probably            resulted  in the conviction of one who is actually innocent .            . . ."  Id. at 496.  In order to satisfy the actual innocence                    ___            requirement  and  enable an  otherwise  barred constitutional            claim to be considered on the merits, a petitioner "must show            by   clear   and  convincing   evidence   that   but  for   a            constitutional error,  no reasonable  juror would  have found            the petitioner [guilty]."  Sawyer v. Whitley, __ U.S. __, __,                                       ______    _______            112   S.  Ct.  2514,   2517  (1992)  (involving  petitioner's            eligibility for the death penalty).                      Given the evidence  presented at trial,  we believe            that  a  reasonable  jury  could have  found  that  appellant                                       _____            engaged  in a  joint venture with  his brother  to unlawfully            carry a firearm  in a  motor vehicle.   Therefore, there  has            been  no  fundamental miscarriage  of  justice.   Because  of            appellant's  state  procedural  default,  the  trial  court's            charge  cannot be  challenged for  prejudicial constitutional            error in this proceeding.                      But,  as appellant  points  out in  its brief,  the            Commonwealth has not argued procedural default.  Nonetheless,            this court has the  authority to raise the issue  sua sponte.                                                              ___ ______            See  Washington v. James, 996 F.2d 1442 (2d Cir. 1993) ("[w]e            ___  __________    _____            believe that  we may raise  the procedural default  issue sua                                                                      ___            sponte"); Hardiman  v. Reynolds, 971  F.2d 500, 502-04  & n.4            ______    ________     ________            (10th  Cir. 1992)  (district court  may raise  procedural bar                                         -16-                                          16            defense sua sponte); Hull v. Freeman, 932 F.2d 159, 164 & n.4                    ___ ______   ____    _______            (3d Cir.  1991) ("because a state-law  procedural default can            effect a  bar to federal habeas  review, we think that  it is            appropriate for  us to consider that issue  sua sponte"); cf.                                                        ___ ______    ___            Mansfield v.  Champion, 992  F.2d 1098,  1099 n.2  (10th Cir.            _________     ________            1993)  (court  not required  to  raise  state procedural  bar            defense sua sponte); Fagan v. Washington, 942 F.2d 1155, 1157                    ___ ______   _____    __________            (7th Cir. 1991) (by  failing to catch petitioner's procedural            default, state has waived the defense).                      We  have been  unable to  find any  circuit holding            that the  issue cannot be  raised sua  sponte.  In  fact, the                                              ___  ______            Second Circuit has held,                      that   the   principles  of   comity  and                      federalism  dictate  that  we  raise  the                      defense  [sua  sponte]  except   in  four                                ___  ______                      circumstances:    (1)  where  comity  and                      federalism  are  not implicated  or where                      they  are better  served by  reaching the                      merits; (2) where the state is  itself at                      fault  for  the  procedural default;  (3)                      where   the  alleged   federal  violation                      challenges  the  validity  of  the  state                      trial  itself; or  (4) where  the alleged                      federal   violation   was  motivated   by                      malice.            Washington  v. James, 996  F.2d at 1451.   Although we do not            __________     _____            embrace Washington, we do note that appellant's case does not                    __________            fall into any of the four categories.                      The rule of Wainwright is grounded upon concerns of                                  __________            comity,  and  was  designed  in  large  part  to protect  the            integrity of state procedural rules. See Wainwright, 433 U.S.                                                 ___ __________                                         -17-                                          17            at 83;  Engle v. Isaac,  456 U.S. 107,  129 (1982).   Because                    _____    _____            these concerns implicate "values that transcend  the concerns            of the  parties to  an action,  . . .  it is  not exclusively            within the parties' control to decide whether such a  defense            should  be raised  or waived."   Hardiman,  971 F.2d  at 503.                                             ________            Where, as is the  case here, the state procedural  default is            clear  on the  face of  the  record, it  would be  a needless            expenditure of  scarce judicial resources were  we to address            the merits of appellant's claim.                      Moreover,  even if  we reached  the merits  of this            claim, we believe that  the government has met its  burden of            demonstrating that  the error did not  "`ha[ve] a substantial            and injurious  effect or influence in  determining the jury's            verdict.'"  Brecht v. Abrahamson, __  U.S. __, __, 113 S. Ct.                        ______    __________            1710, 1714  (1993) (quoting  Kotteakos v. United  States, 328                                         _________    ______________            U.S. 750, 776 (1946)). It follows that we would not issue the            writ on the basis of this error.                      Next, appellant argues  that his writ  should issue            because the SJC  affirmed his  conviction on  a legal  theory            that  was  not  presented  to  the  jury.    More  precisely,            appellant contends that, because  the Commonwealth asked that            the  jury be  charged as  to joint  possession and  not joint            venture  principles in connection  with the unlawful carrying            charge,  it necessarily  proceeded  on the  theory that  Juan                        ___________            Ortiz personally killed the victims.  According to appellant,                                         -18-                                          18            it  follows  that   "the  jury   instructions  required   the            government to prove beyond a reasonable doubt that Juan Ortiz            was  personally responsible  for  the acts  that killed  each            victim."7    Therefore,  appellant  concludes  that  the  SJC            assessed  the facts  of his  case against  a legal  theory --            joint venture -- that did not reflect  the theory on which he            was  tried.   In support  of his  position,  appellant relies            primarily on Cole v. Arkansas, 333 U.S. 196 (1948).                         ____    ________                      In Cole, an information charged the defendants with                         ____            violation  of   2 of an Arkansas criminal statute.  They were            subsequently  tried and convicted  of   2  violations.  Cole,                                                                    ____            333  U.S.  at   198.    The  state   supreme  court  affirmed            defendants' convictions on the ground that they violated    1            of the same statute, which  describes an offense separate and            distinct from the offense described in   2.  Id.  The Supreme                                                         ___            Court  found  that the  defendants  "were  clearly tried  and            convicted by  the jury  for promoting an  unlawful assemblage            made an offense by   2, and were not tried for the offense of            using  force and violence as described in    1."  Id. at 199.                                                              ___            The  Court  added  that,  "without  completely  ignoring  the            judge's charge, the jury could not have convicted petitioners            for    having   committed   the   separate,   distinct,   and                                            ____________________                 7In effect, on this claim appellant argues that the jury            instructions were not defective, but rather, embodied a valid            theory  of felony-murder  which did  not  require proof  of a            joint venture.                                         -19-                                          19            substantially different offense defined in   1."  Id. at 200.                                                              ___            We   have  recognized,  consistent   with  Cole,  that  "[a]n                                                       ____            appellate court  may not lawfully  sustain a conviction  on a            theory entirely different from the theory upon which the jury            was  charged."  United States  v. Gomes, 969  F.2d 1290, 1295                            _____________     _____            (1st Cir. 1992); see United States v. Anguilo, 897 F.2d 1169,                             ___ _____________    _______            1197 (1st Cir.), cert. denied, 498 U.S. 845 (1990).                             _____ ______                      An  appellate  court  may  not go  outside  of  the            prosecution's trial  theory to affirm a  conviction because a            criminal defendant  must have  notice of the  charges against            him and an opportunity to  be heard in a trial on  the issues            raised by those charges.  Cole,  333 U.S. at 201.  Further, a                                      ____            criminal defendant also  has the  right to trial  by jury  as            opposed to trial by  an appellate tribunal.  See,  e.g., Dunn                                                         ___   ____  ____            v. United States, 442 U.S. 100 (1979) (appeals court affirmed               _____________            conviction based upon specific acts, the  alleged criminality            of  which the defendant  was never afforded  notice); Cola v.                                                                  ____            Reardon, 787  F.2d 681 (1st  Cir.) (same), cert.  denied, 479            _______                                    _____  ______            U.S. 930 (1986).                      According  to appellant, Cole  is controlling here.                                               ____            We  disagree.  In general, the concerns expressed in Cole are                                                                 ____            implicated  where an  appellate court  in effect  "charges" a            defendant  with a  new  crime, and  then  concludes that  the            evidence  was sufficient  to  support a  conviction for  that            previously uncharged  offense.    Thus,  if  the  prosecution                                         -20-                                          20            decides to  submit a case to  the jury on one  of two equally            valid   legal  theories,  and   the  jury   convicts  despite            insufficient evidence,  on appeal the  court cannot resurrect            the conviction  by ruling that there  was sufficient evidence            to  convict  on  the  alternative  theory.    See  Saylor  v.                                                          ___  ______            Cornelius,  845 F.2d  1401, 1403-04  (6th Cir.  1988); United            _________                                              ______            States v. Hill, 835 F.2d 759, 764 (10th Cir. 1987).   This is            ______    ____            not what happened here.                      In  the   first  place,  contrary   to  appellant's            contention,  the  jury  instructions  did  not  require   the                                                       ___            Commonwealth  to prove  that appellant  shot the  officers in            order  to convict him of felony-murder.  Rather, the jury was            instructed that, although the Commonwealth did not claim that                                                           ___            appellant killed the officers, it  could still convict him of            felony-murder  if, inter  alia,  he committed  the felony  of                               _____  ____            unlawful carrying  while jointly possessing the  gun with his            brother.8                      Furthermore,  after  scanning  the record,  we  are            unable  to  see  how  the  concerns  expressed  in  Cole  are                                                                ____            implicated in this case.  From the outset  of this action the            Commonwealth  and   the  defense  proceeded  on   the  shared                                            ____________________                 8In   fact,   appellant  has   acknowledged   that  "the            government's  `joint possession'  theory  as a  felony-murder            theory  of joint  accountability  is a  fiction  in terms  of            Massachusetts law."   This comports  with the  view that  the            jury  instructions did  not require  the jurors  to determine            whether appellant  personally shot the  victims, but  rather,            were defective under state law.                                         -21-                                          21            understanding that  Eddie killed the officers,  and that Juan            could  be convicted  of felony-murder  only  on the  basis of            Eddie's  actions.    This  is consistent  with  the  bill  of            particulars, this was  how the case  was presented at  trial,            and this is  how the jury was instructed.  The record clearly            demonstrates  that  the  Commonwealth sought  to  prove  that            appellant  did not want to  restrain his brother, but rather,            shared  his evil  intentions, and  appellant sought  to prove            just the opposite.  Appellant knew the specific acts that the            Commonwealth endeavored to prove  at trial, he knew precisely            with what  crime he was charged,  and he knew the  basis upon            which  the   alleged  acts  constituted  the  crime  charged.            Moreover,  appellant  is unable  to  point  to any  prejudice            resulting from the SJC's  alleged due process violation, such            as the inability  to prepare a  proper defense.   And, as  we            have  already held, any  constitutional prejudice  that might            have  been  engendered  by  the  variance  between  the  jury            instructions and Massachusetts law cannot be reviewed in this            proceeding.                      This is  an instructional  error case.   This court            has recognized that                      [i]n   the   traditional  contemporaneous                      objection situation, the error inheres in                      the   judge's   charge;   thus,   it   is                      reasonable  to  require objection  at the                      time  of   the  error.     In  the   Dunn                                                           ____                      situation, however, the error  inheres in                      the appellate court affirmance; thus, the                                         -22-                                          22                      error has not yet occurred at the time of                      the judge's charge.            Cola,  787  F.2d at  694.   In  the present  case,  the error            ____            complained  of "inheres in  the judge's charge,"  and not "in            the  appellate court  affirmance."   The SJC did  not violate            appellant's due  process rights by recognizing  that the jury            was improperly  instructed on felony-murder,  and then ruling            that the evidence adduced at  trial was sufficient to warrant            a conviction under Massachusetts  law.  That the Commonwealth            misunderstood the legal principles underlying its "theory" of            guilt,  and  therefore  asked   for  and  received,  with  no            objection,  a  legally deficient  jury instruction,  does not            place this case under  the shadow cast  by Cole.  In  effect,                                                       ____            appellant asks  us to review his claim of instructional error            through the back door.  We decline to do so.                      Appellant's final  argument is  little more than  a            repetition of his previous argument.  According to appellant,            because the  jury instructions necessarily required  proof of            the fact that  he personally killed the  officers, this court            should look to whether the evidence was sufficient to support            a  conviction  under that  theory.    Because  there  was  no            evidence to that effect, appellant argues that the SJC should            have  found, and  we must  find, that there  was insufficient            evidence to support his felony-murder conviction.                      For the reasons that we have already explained, the            Commonwealth did  not proceed upon the  theory that appellant                                         -23-                                          23            personally killed the officer,  and the jury instructions did            not  require proof  of that  fact.   Therefore,  neither this            court  nor the SJC is  required to review  the sufficiency of            the evidence against  that theory.   When a  petitioner in  a            habeas action challenges the sufficiency of the evidence, the            court's  task  is to  determine  whether  "after viewing  the            evidence in the  light most favorable to the prosecution, any            rational  trier  of  fact  could  have  found  the  essential            elements of the crime beyond a reasonable doubt."  Jackson v.                                                               _______            Virginia,  443 U.S. 307, 324  (1979).  This  standard must be            ________            applied  "with  specific reference  to  the  elements of  the            offense as defined by state law."  Campbell v. Fair, 838 F.2d                                               ________    ____            1, 4 (1st Cir.), cert. denied, 488 U.S. 847 (1988).   The SJC                             _____ ______            did just this, and concluded that the evidence was sufficient            to uphold appellant's conviction.  Appellant does not contest            the accuracy of that ruling.                      Because  one of appellant's  claims is procedurally            defaulted, and the other  two lack merit, his petition  for a            writ of habeas corpus is denied.                      Affirmed.                      Affirmed.                      ________                      Dissent follows.                      Dissent follows.                                         -24-                                          24                           STAHL,  Circuit Judge, dissenting.  Although I                                   _____________            agree  with the majority that a procedural default could have            been argued  in this case, and  although I can see  the logic            behind   raising  such   a   default  sua   sponte  in   many                                                  ___   ______            circumstances, I find myself  persuaded by Judge Oakes's view            that  "the  strength of  petitioner's  case"  also should  be            considered by  courts deciding  whether or  not to raise  the            default sua sponte.  See Washington, 996 F.2d at 1454 (Oakes,                    ___ ______   ___ __________            J., dissenting).   And, because,  in my view,  a non-harmless            error undermining the structural guarantee that the jury will            make  the  requisite  elemental  determinations  clearly  was                                                             _______            committed  here, I  would  reach the  merits of  petitioner's            claim and grant the writ.                           In my  dissenting opinion  in Libby  v. Duval,                                                         _____     _____            No. 93-1588, slip op. at ___ (1st Cir. Mar. __, 1994) (Stahl,            J., dissenting), I explain  in detail why I believe  that the            whole-record  harmless-error review  prescribed by  Brecht v.                                                                ______            Abrahamson, 113  S. Ct. 1710,  1722 (1993) cannot  and should            __________            not  be  utilized  by courts  reviewing  instructional errors            which  have the effect  of precluding juries  from making the            requisite factual findings in  criminal trials.9  Instead, as            I  argue in  Libby, habeas courts  reviewing such  errors for                         _____                                            ____________________            9.  I therefore regard as misleading the  majority's citation            to  Brecht while indicating in dictum that it would not grant                ______            the writ even  were it  to reach the  merits of  petitioner's            claim.  See ante at 17.                    ___ ____                                         -24-                                          24            harmlessness  should employ  the  test set  forth in  Justice            Scalia's concurring  opinion  in Carella  v. California,  491                                             _______     __________            U.S. 263 (1989).  Because the error here -- failure to charge            the  jury that  it must  find a  joint venture  to unlawfully            carry  a firearm  in a  motor  vehicle in  order  to use  the            unlawful carrying  charge as  a predicate offense  for felony            murder  --  had exactly  such an  effect,  see id.  at 268-71                                                       ___ ___            (explaining how  instructions  misdescribing (or  failing  to            describe) elements  of  crimes and  instructions  setting  up            mandatory presumptions on elements of crimes tend to preclude            juries  from  making   requisite  elemental   determinations)            (Scalia,  J.,  concurring), I  would  review  the error  here            according to  the dictates of the Carella  concurrence.  That                                              _______            is to  say, I would  ask (1)  whether the omitted  charge was            relevant  only to an element  of a crime  of which petitioner            was acquitted;  (2) whether  the omitted charge  was relevant            only to an element which petitioner admitted;  or (3) whether            no rational jury could  have found what it actually  did find                                                       ________  ___ ____            and  not also  find the  charged element.   See  id.  at 271.                                                        ___  ___            Because prongs one and two of the Carella test clearly do not                                              _______            apply, I will focus on prong three in conducting my analysis.                           While it is clear that the jury did find  both            a  joint venture to commit the crime of attempted assault and            battery  with  a dangerous  weapon  and  that petitioner  was            unlawfully carrying a  firearm in a  motor vehicle (under  an                                         -25-                                          25            instruction  that  required it  to  find  intent to  exercise            dominion and control over the firearm), it seems to me that a            rational  jury,   having  made  these   findings,  would  not                                                                      ___            necessarily also have found that there was a joint venture to            ___________            commit  the crime of unlawfully carrying a firearm in a motor            vehicle.  With regard to the impact of the finding that there            was a joint  venture to commit attempted assault and battery,            the  record  reveals  that  petitioner and  his  brother  had            abandoned  the attempted  assault  and battery  prior to  the                                                            _____ __            killings.   Thus,  the intent  underlying that  charged crime            must  necessarily have vanished  prior to the  murders.  (The            jury's  special   verdict  form,  which  indicates  that  the            attempted  assault and  battery  felony was  not a  predicate                                                         ___            offense for purposes of the felony murder conviction, implies            as much.).   This  means,  of course,  that even  if the  two            intents  were somehow  viewed as  "functional equivalent[s],"            see  id., in nature (and  I do not think that  they can be so            ___  ___            viewed), the  shared intent  underlying the joint  venture to            commit the  attempted assault  and battery finding  cannot be                                                                ______            the very same as  the shared intent which would  underlie any            (unmade) finding that there was a joint venture to unlawfully            carry a firearm.                           The  fact  that,  in  finding  the  petitioner            guilty  of unlawfully  carrying the  firearm, the  jury found            that  petitioner  "had  joint  dominion and  control  of  the                                         -26-                                          26            firearm with  Eduardo and  intended to exercise  dominion and            control" presents,  for  me,  a  closer  question.    As  the            majority opinion  notes (and  as the  SJC observed  on direct            appeal),  the  missing joint  venture  finding encompasses  a            determination that petitioner  "`intentionally encouraged  or            assisted Eddie Ortiz in  the commission of a felony  and that            he did so  while sharing  with Eddie Ortiz  the mental  state            required  for that crime.'"  Ante at  11 (quoting  Ortiz, 560                                         ____                  _____            N.E.2d at 700.)  In  my view, the jury's "joint dominion  and            control" finding is the  functional equivalent of "the shared                             __            mental state" necessary for  a joint venture finding.   It is            not,  however, the  functional equivalent  of a  finding that            petitioner  "intentionally encouraged  or assisted"  Eddie in                                       __________     ________            the commission of the unlawful carrying of the weapon.  Thus,            the record  is  devoid  of  factual findings  which  are  "so            closely  related to the ultimate  fact [to be  found] that no            rational  jury could  find those  facts without  also finding            the[e] ultimate fact.'"  Id.  Accordingly, the error here was                                     ___            not harmless.   See id.;  see also Libby,  slip op. at  __-__                            ___ ___   ___ ____ _____            (Stahl, J., dissenting).                           I therefore would grant the writ.                                         -27-                                          27
