           United States Court of Appeals
                         For the First Circuit

No.   05-1833

                        ANTHONY OLSZEWSKI, III,

                         Petitioner, Appellant,

                                   v.

                             LUIS SPENCER,

                         Respondent, Appellee.




            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS
          [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                 Before

               Torruella, Selya and Dyk,* Circuit Judges.




     David J. Nathanson for the appellant.
     Cathryn A. Neaves, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for the appellee.




                            October 20, 2006




           *
           Of the Federal Circuit, sitting by designation.
             DYK,   Circuit    Judge.           This    is   a    habeas       case.        The

petitioner, Anthony Olszewski III (“Olszewski”), was convicted of

first-degree murder in the Massachusetts state courts.                              He claims

that his due process rights were violated when the Commonwealth

permitted the destruction of exculpatory evidence prior to trial

and   made   improper    statements        in     closing        arguments      at       trial.

Olszewski    also   seeks     relief      on     the    grounds     that       he    received

ineffective    assistance         of    counsel        and   that   the    trial         court

improperly     dismissed      a        sitting     juror      based       on        ex    parte

communications.      We conclude that none of these claims warrants

habeas relief, and therefore affirm the district court’s denial of

the petition.

                                           I.

             Joanne Welch was murdered sometime between 7 and 9 P.M.

on January 28, 1982.        Olszewski and Welch had been involved in a

romantic relationship that ended approximately one month before

Welch’s murder.         Prior to the murder, Welch had begun dating

another man, which upset Olszewski.                     On the day of the murder,

several of Olszewski’s friends heard Olszewski threaten to kill

Welch. That same day, Welch told family members and coworkers that

she planned to drive to Olszewski’s house after work to retrieve

her personal belongings and some money.                      She intended to return

home for dinner and expected a call from her new boyfriend to

arrange a date for the evening of January 28.                             Welch visited


                                          -2-
Olszewski’s house and retrieved her belongings, but never returned

home.

            On       January    29,    1982,    on   Great   Plains   Road     in   West

Springfield, Massachusetts, the police located shoes and earrings

belonging       to   Welch     along   with    two   teeth,   a   strip   of    chrome

automobile trim, and a belt hanging from a tree.                  The police found

Welch’s body seven miles away.                 She had fractures to her jaw and

pelvis, bruising, abrasions, and several missing teeth.                      The teeth

found on Great Plains Road appeared to be Welch’s.                             Welch’s

injuries were consistent with blows from a fist or foot and

strangulation.         On January 30, the police found Welch’s car parked

next to a Westfield, Massachusetts bowling alley. There was blood,

hair, and fiber belonging to Welch in the car, and a strip of

chrome trim was missing from the passenger side.

            Olszewski admitted that Welch came to his house on

January 28; his defense was alibi during the period of time that

the murder was committed.              He claimed that Welch left his house

around 6:30 that evening, and that between 7 and 9 P.M.,1 he was in

the company of his friend, Philip Strong.                     Olszewski met other

friends around 9 P.M.


            1
               Exactly when Olszewski allegedly met with Strong is
unclear. The Supreme Judicial Court found that Olszewski “told the
police that he was in the company of Philip Strong between 7 and 9
P.M.” Commonwealth v. Olszewski, 416 Mass. 707, 710, 625 N.E.2d
529, 533 (1993). At trial, however, Officer Whitehead testified
that Olszewski said that he met Strong at the Y.M.C.A. at 7:30 P.M.


                                           -3-
            On January 31, 1982, Strong provided the police with a

written statement corroborating Olszewski’s alibi. On February 15,

1982, the police questioned Strong a second time, and Strong

admitted    that   the   first   statement    was   false.      Contrary    to

established procedures, the police did not copy the first statement

and left Strong alone with the only copy of the statement.             Strong

ripped it up and threw the pieces in the trash.                 Strong then

provided the police with a second statement that stated that, on

January 29, Olszewski told Strong that Olszewski had murdered

Welch. The police did not attempt to retrieve the first statement

until later that night when Officer Sypek looked in the trash for

the pieces and found that the trash had already been emptied.              The

first statement was never recovered.

            On February 12, 1983, Olszewski was convicted of Welch’s

murder based in large part on Strong’s testimony.                 On direct

appeal,    the   Massachusetts   Supreme     Judicial   Court   vacated    the

conviction and remanded the case based on the prosecution’s use at

trial of evidence that was lost or destroyed.2                  The   Supreme

Judicial Court instructed the trial court that on remand, under



            2
               The lost evidence at issue on appeal included
Strong’s first statement, the belt, blood samples taken from the
road and parking lot, a paint chip taken from Welch’s skin, a
carpet swatch taken from Welch’s vehicle, an automobile window
crank handle, and a plastic cup lid found in Welch’s vehicle. Some
of this evidence, but not Strong’s first statement, was recovered
after the Supreme Judicial Court’s order but before the trial court
conducted an evidentiary hearing.

                                    -4-
Commonwealth v. Willie, 400 Mass. 427, 510 N.E.2d 258 (1987),

“[f]or each piece of missing evidence shown to be potentially

exculpatory,       the   judge     must     weigh       the   culpability    of     the

Commonwealth and its agents, the materiality of the evidence, and

the   potential     prejudice      to    the     defendant.”        Commonwealth     v.

Olszewski, 401 Mass. 749, 757, 519 N.E.2d 587, 592 (1988).                        It is

unclear whether the Supreme Judicial Court’s decision to vacate was

based in part on the destruction of Strong’s first statement.                       On

the one hand, there is language in the opinion directing the trial

court to consider the destruction of Strong’s first statement on

the   remand.       On   the     other    hand,    the    Supreme    Judicial     Court

concluded that “the defense counsel fully described to the jury the

circumstances of the making and the destruction of Strong’s first

statement.       The defense thoroughly cross-examined, and effectively

impeached,       Strong.         The     judge     properly       admitted   Strong’s

testimony.”

           Nonetheless on remand the trial court considered the

remand order as extending to the destruction of Strong’s first

statement.        The    trial    court    held     a    series    of   hearings    and

suppressed certain evidence on the ground that the state destroyed

the predicate physical evidence.3                At the hearing, the trial judge

considered whether the destruction of Strong’s first statement


             3
               The trial judge suppressed all results of tests
conducted on blood stains found at Great Plains Road and beneath
Welch’s car in the bowling alley parking lot.     The judge also
suppressed the results of blood tests taken on the belt.
                               -5-
should be grounds for dismissing the indictment.            The judge stated

in his findings of fact:

           I do not believe that Captain Sypek and
           Detective Zielinksi were so obtuse that they
           did not realize that the first statement had
           been destroyed until after Strong had given
           his second statement and left the station and
           until after the wastepaper basket in the
           conference room had been emptied.      On the
           contrary, I strongly suspect that they
           deliberately left the statement on the
           conference room table and left the room in the
           hope that Strong would destroy the statement
           and give a new one.

Nonetheless,   in     finding   that    the    indictment    should   not   be

dismissed, the trial judge ruled that, although the police were

“incredibly foolish,” he did “not believe it was done maliciously.”

Leaving Strong alone with his first statement “did not amount to a

bad faith effort to deprive the defendant of exculpatory evidence.”

After   “[w]eighing    the   culpability      of   the   police   against   the

materiality of the evidence and the potential prejudice to the

defendant” under Massachusetts law, the court denied Olszewski’s

motion to dismiss the indictment.

           At the second trial, the judge allowed Olszewski to

examine witnesses concerning the circumstances of the destruction

of the statement; permitted Olszewski to cross-examine the police

about the contents of the statement; and gave a jury instruction




                                       -6-
regarding the lost statement.4           On February 5, 1990, Olszewski

again was convicted of first-degree murder.          He was sentenced to

life in prison.         On his second direct appeal to the Supreme

Judicial Court, Olszewski argued, inter alia, that (1) Strong’s

testimony should have been excluded because Strong’s original

statement       was   destroyed;   (2)   the   prosecutor   made    improper

statements during closing arguments; and (3) the trial court’s

dismissal of a sitting juror based on ex parte communications

between the juror and the court violated Olszewski’s federal

constitutional rights.       Commonwealth v. Olszewski, 416 Mass. 707,

625 N.E.2d 529 (1993).       The Supreme Judicial Court rejected these

arguments and affirmed the conviction.

            After the Supreme Judicial Court affirmed his conviction,

Olszewski filed a motion for a new trial claiming that his trial

counsel was ineffective for failing to call his father at a witness

and that his appellate counsel was ineffective for failing to raise

an ineffective assistance argument on direct appeal.               The trial

judge denied the motion on the merits.          Olszewski through counsel

later filed a motion to amend his motion for a new trial.               This

motion to amend included a claim, raised for the first time, that

his trial counsel was ineffective for failing to inform the court



            4
               The jury instruction stated, “If the jury believes
that the police destroyed, concealed, condoned or participated in
the destruction or concealment of any statement of any witness, the
jury may infer that the destroyed or concealed statement contained
something unfavorable to the Commonwealth’s case.”
                                -7-
about the reason for not calling Olszewski’s father as a witness

(on the theory that the court would then have refused to allow the

prosecution to rely on the father’s failure to testify). The court

denied the motion to amend on the ground that the defendant had

waived the issue by failing to present it in his motion for a new

trial.   A single justice of the Supreme Judicial Court denied

Olszewski’s petition for leave to appeal because his claim was “not

new.”

          On December 5, 2001, Olszewski filed this petition for a

writ of habeas corpus in the United States District Court for the

District of Massachusetts.   Olszewski raised the three arguments

that he raised on direct appeal and included the ineffective

assistance claim that he raised in his motion to amend.

          On January 18, 2005, the magistrate judge issued a

detailed report recommending that Olszewski’s petition be rejected.

In her recommendation, the magistrate judge first addressed the

destruction of Strong’s original statement.       Although the judge

assumed that the police acted in bad faith in allowing Strong to

destroy the statement, she ruled that the loss of evidence did not

violate Olszewski’s due process rights because, under California v.

Trombetta, 467 U.S. 479, 485 (1984), Olszewski could recreate the

substance of the document through cross-examining witnesses at

trial.

          The   magistrate   judge    then   addressed   whether   the

prosecutor’s    statements   during    closing   argument    violated
                                -8-
Olszewski’s due process rights.              As to three of the allegedly

improper statements, the magistrate judge found that the trial

court’s jury instruction cured any error.                With respect to the

remaining two statements (as to which there was no instruction),

the   magistrate     judge      also   concluded     that     there     was    no

constitutional error.        The prosecutor’s misstatement that two of

Olszewski’s alibi witnesses waited to testify until eight years

after the murder, while erroneous, was a “fleeting reference in the

midst of a detailed challenge to the veracity of these alibi

witnesses’ testimony” and “did not improperly taint the trial.”

As to the last allegedly improper comment, the magistrate judge

found that the prosecutor did not act improperly in asking the jury

to infer that the failure of Olszewski’s father to testify meant

that his testimony would have been adverse to Olszewski.

            Next,   the   magistrate     judge     found    that    Olszewski’s

ineffective assistance of counsel claim was procedurally defaulted

because it was clear that neither the trial court nor the single

justice of the Supreme Judicial Court reached the merits of the

claim.   Finally, the magistrate judge found that the trial court’s

ex parte communications with and the dismissal of a juror were not

improper because the juror was replaced with an alternate that

Olszewski’s   counsel     had   selected     and   any   possible     error   was

harmless.

            On March 30, 2005, the district court issued an order

adopting the magistrate judge’s findings and denying Olszewski’s
                                       -9-
petition without holding an evidentiary hearing.                      This appeal

followed.     This court has jurisdiction pursuant to 28 U.S.C. §§

1291 and 2253.

                                       II.

             Where the district court does not hold an evidentiary

hearing, we review the district court’s denial of habeas corpus

relief without deference.         Evicci v. Maloney, 387 F.3d 37, 39-40

(1st Cir. 2004); Correia v. Hall, 364 F.3d 385, 387-88 (1st Cir.

2004).

             This court’s review of petitioner’s claims is governed by

the    Antiterrorism     and   Effective         Death   Penalty     Act   of   1996

(“AEDPA”).     Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19

(1996). Under AEDPA, we may only grant the petition if the Supreme

Judicial     Court’s   decision      “was    contrary     to,   or    involved    an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “was based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”                    § 104(3)(d).

Here, we conclude that there is no right to habeas relief.                      With

respect to most of the claims, petitioner’s constitutional rights

were   not   violated;    in   the    case       of   petitioner’s     ineffective

assistance     of   counsel    claim,       we    find   that   his    claim     was

procedurally defaulted.

                                      III.

             Olszewski first contends that his constitutional due
                                 -10-
process rights were violated when the Commonwealth failed to

preserve Strong’s first statement.

                                         A.

              It     is   undisputed     that    Strong’s     first   statement

corroborated Olszewski’s alibi and that Strong destroyed the only

existing copy of his first statement.              Strong testified that he

gave the first statement on January 31, 1982, in the presence of

Detective Edward Sypek and one or two officers whose names Strong

could   not       recall.5   At   both   the    evidentiary   hearing   and   at

Olszewski’s second trial, Strong testified that his first statement

recited that, between 7 and 9 P.M. on January 28, 1982, Strong and

Olszewski were talking in the Y.M.C.A. parking lot.6                  At trial,

Detective Sypek confirmed that the statement “sa[id] I [Strong] was

with Tony [Olszewski] from seven to nine.”



              5
               The trial court found that Strong told the police
and wrote in his first statement that:

     on January 28[, 1982] he had been driving around in his
     own car at about 7:00 P.M. when he saw the defendant in
     his car, parked by the old Y.M.C.A. on Upper Church
     Street.    He said he pulled his car alongside the
     defendant’s car, that the two talked for about an hour
     and a half, and that Joanne Welch was not mentioned at
     all in the course of the conversation.     He said the
     defendant left shortly before 9:00 P.M. and that he did
     not see him for the rest of the evening.

The Supreme Judicial Court adopted these factual findings.
              6
               On cross-examination, Strong admitted that his first
statement might have said that he was with Olszewski between 7:30
and 8:30 P.M., but his “memory [was] that it was sometime between
seven and nine.”
                               -11-
          At trial, Strong testified that when he returned to the

police station on February 15, 1982, Officer Sypek yelled at him

and accused him of lying in his first statement.          Strong then

confessed that his first statement was false.       After he admitted

that the statement was false, the police violated their established

procedures by failing to photocopy the first statement and leaving

Strong alone in an interview room for some period of time with the

only existing copy of the statement.      Strong ripped up his first

statement and threw the pieces in the trash can while he was alone

in the interview room.    The police did not immediately attempt to

retrieve the pieces from the trash.     Although Officer Sypek later

looked for the pieces, the trash had already been emptied by the

cleaning service.

          Strong gave his second statement on the same day that he

destroyed his first statement.     In the second statement, Strong

said that he was not with Olszewski on January 28, but instead

encountered him on January 29, at which time Olszewski “told me

that he had killed Joanne Welch,” and stated that “he wanted to go

up and dispose of the body.”      They got into Strong’s car, and

Strong drove toward the location where Welch’s body was found.

          On   February   16,   1982,   Strong   gave   the   police   a

supplemental statement detailing his activities on January 28,

1982.   He stated that he was having dinner with his fiancee at a

steakhouse in Holyoke between 7:40 P.M. and 9 P.M. on January 28.

          At trial, Strong was a key prosecution witness.              He
                             -12-
testified to the substance of the second statement and elaborated

further:

            [Olszewski] said that Joanne had stopped over
            his house and they had an argument about her
            new boyfriend there, and Joanne had asked
            [Olszewski] for h[er] money and she said that
            if he didn’t give her her money back, that she
            would tell the cops about the robberies at the
            Westfield Mobil station. And then [Olszewski]
            said that they got into the car and drove over
            to Bear Hole. He got in Bear Hole and started
            to strangle her . . . and he wrapped a belt
            around her neck, dragged her out of the car,
            threw the belt away, stomped on her neck with
            his heel of his shoe, then ran her over with
            the car several times. One of the times she
            got stuck underneath the car.     He got out,
            pulled her out underneath the car, put her in
            the car, and then drove her up there to Shaker
            Road where he threw the body off, and then
            parked the car at the bowling alley.

As they approached the location of Welch’s body, “in front of us

was   a   state   trooper’s   car   and   some   yellow   tape   .   .   .   and

[Olszewski] said that’s where he had dumped the body, turn around.”

Strong turned the car around and drove to a Westfield bowling

alley, where Olszewski “pointed out where he had parked Joanne’s

car.”     Strong testified that he drove Olszewski back into West

Springfield and eventually dropped him off.

                                     B.

            “It is axiomatic that [Brady v. Maryland, 373 U.S. 83

(1963)] and its progeny established that a defendant has a due

process right to request and receive evidence that the government

possesses which is material to his guilt or punishment.”                 United

States v. Femia, 9 F.3d 990, 993 (1st Cir. 1993).           To address the
                               -13-
problem of the loss or destruction of evidence by the prosecution,

“the Supreme Court has developed a framework to analyze ‘what might

loosely be called the area of constitutionally guaranteed access to

evidence.’”    Id. (quoting California v. Trombetta, 467 U.S. 479,

485 (1984) and Arizona v. Youngblood, 488 U.S. 51, 55 (1988)).         The

Supreme Court’s decisions in Trombetta and Youngblood govern the

constitutionality of the nondisclosure of evidence in “cases in

which the government no longer possesses the disputed evidence.”

Id.

          In Trombetta, defendants were charged with drunk driving

and objected to the state’s admission of breath-analysis tests.

467 U.S. at 483.    They complained that the police had destroyed the

original breath samples and that as a consequence they could not

conduct their own tests.       Id.     The Supreme Court rejected the

defendants’ due process claim.       Id. at 489.   As a threshold matter,

the Court noted that the police “were acting ‘in good faith and in

accord with their normal practice’” when they disposed of the

breath samples.     Id. at 488 (citing Killian v. United States, 368

U.S.   231,   242   (1961)).     The     Court   then   held   that   “more

importantly,” the missing evidence did not “meet [the] standard of

constitutional materiality.”         Id. at 488-89.      To satisfy this

standard, the “evidence must both possess an exculpatory value that

was apparent before the evidence was destroyed, and be of such a

nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” Id. The Court held
                                  -14-
that neither condition was met.          Id.     First, the samples were not

apparently exculpatory because “the chances [were] extremely low

that preserved samples would have been exculpatory.”                    Id.     The

second     condition     was   not    met     because   the     defendants      had

“alternative      means        of    demonstrating          their     innocence,”

e.g. inspecting the calibration of the breathalyzer machine or

cross-examining the officer who administered the test. Id. at 490.

            Four years later, in Arizona v. Youngblood, the Supreme

Court considered the police’s failure to preserve blood and semen

samples taken from a rape victim.                A police criminologist had

conducted an initial review of the samples, but the state failed to

preserve the samples by refrigeration so that the defendant could

conduct his own tests.         488 U.S. at 53-54.       The Youngblood Court

found that the evidence was not apparently exculpatory, even though

it   had   potentially    greater     value    than   the    breath   samples    in

Trombetta, because “[t]he possibility that the semen samples could

have exculpated respondent if preserved or tested is not enough to

satisfy the standard of constitutional materiality in Trombetta.”

Id. at 56 n.*.    In explaining Trombetta’s “apparently exculpatory”

requirement, the Court emphasized that it must be apparent that the

evidence is exculpatory before it is lost or destroyed.                Id. at 56.

The Court then set forth a new standard for lost evidence that is

only “potentially useful.”          Id. at 58.   The Court held “that unless

a criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute
                                       -15-
a denial of due process of law.”       Id. at 58.   In contrast, the

Court recognized that a bad faith showing is not required when the

evidence is apparently exculpatory:     “[t]he Due Process Clause of

the Fourteenth Amendment, as interpreted in Brady, makes the good

or bad faith of the State irrelevant when the State fails to

disclose to the defendant material exculpatory evidence.”      Id. at

57.   The defendant did not establish a due process violation under

the facts of Youngblood because the evidence was only “potentially

useful” and the actions of the police could “at worst be described

as negligent.”   Id. at 58.

           The issue again arose in Illinois v. Fisher, 540 U.S.

544, 549 (2004), where the Court reviewed Youngblood and Trombetta.

In Fisher, the defendant, who was charged with possession of

cocaine, filed a discovery motion requesting all physical evidence,

including the cocaine, that the state intended to use at trial.

Id. at 545.   Before the cocaine was provided to the defendant, the

defendant “jumped bond” becoming a fugitive.        Id.   When he was

captured ten years later, the state reinstated the possession

charges but had, in good faith, already destroyed the cocaine. Id.

at 546.   The Court reiterated that “the applicability of the bad-

faith requirement in Youngblood depended ... on the distinction

between ‘materially exculpatory’ evidence and ‘potentially useful’

evidence.”    Id. at 549.     Bad faith was not necessary if the

evidence was “materially exculpatory.”      Such a showing was only

necessary if the evidence was “potentially useful.”         The Court
                                -16-
concluded that the cocaine was only “potentially useful evidence”

and     that      there     was     no     due        process     violation     under

Youngblood because the defendant did not allege that the police

acted in bad faith.         Id. at 547-48.

             A    variety    of    other    circuits       have    considered     the

relationship between Trombetta and Youngblood and have concluded

that (1) the destruction of “apparently exculpatory” evidence does

not require a showing of bad faith but that (2) if the evidence is

only “potentially useful,” a bad-faith showing is required.7                     Each

of    this     court's    past    decisions      in    this     area   has   involved

potentially useful evidence, rather than apparently exculpatory

evidence,8 and in these cases, the court has held that a showing of


             7
               See United States v. Moore, 452 F.3d 382, 388 (5th
Cir. 2006)(“impermissibly withheld evidence must be either (1)
material and exculpatory or (2) only potentially useful, in
combination with a showing of bad faith on the part of the
government”); United States v. Estrada, 453 F.3d 1208, 1212-13 (9th
Cir. 2006) (only requiring a showing of bad faith when the evidence
is   “potentially    exculpatory,   as   opposed    to   apparently
exculpatory”); Bullock v. Carver 297 F.3d 1036, 1056 (10th Cir.
2002) (“A defendant can obtain relief under the Due Process Clause
when he can show that a police department destroyed evidence with
‘an exculpatory value that was apparent before [it] was destroyed.’
... Where, however, the police only failed to preserve ‘potentially
useful’ evidence that might have been exculpatory, a defendant must
prove that the police acted in bad faith by destroying the
evidence.”) (internal citations omitted); United States v. Wright,
260 F.3d 568, 571 (6th Cir. 2001) (“The destruction of material
exculpatory evidence violates due process regardless of whether the
government acted in bad faith.”).
             8
               See United States v. Garza,435 F.3d 73, 75 (1st Cir.
2006)(noting that drugs and tape recordings of drug transactions
are only “potentially exculpatory”); DiBenedetto v. Hall, 272 F.3d
1, 13 (1st Cir. 2001) (finding that blood stains on a sneaker were
not “clearly exculpatory”); Femia, 9 F.3d at 995 (finding that the
                               -17-
bad faith is required.9        In contrast, this case involves apparently

exculpatory     evidence,      rather    than   merely   potentially   useful

evidence.       We need not decide whether, as the Supreme Court has

suggested and other circuits have held, a showing of bad faith is

unnecessary in these circumstances, although we note that the state

agrees that such a showing is not required because Strong’s first

statement was apparently exculpatory.            Nor need we decide whether

bad faith was demonstrated on the facts of this case, as the

district court assumed.          We proceed instead to the question of

whether the destroyed evidence satisfies Trombetta’s requirement

that it be “to some extent irreplaceable.”            Femia, 9 F.3d at 994.

            The requirement that the evidence be irreplaceable was

directly addressed by the Supreme Court in Trombetta in connection

with the second prong of the materiality requirement.              The Supreme

Court considered whether the defendants “were without alternate

means of demonstrating their innocence.”            Trombetta, 467 U.S. at

490.    In      that   case,    the     Court   concluded   that   sufficient


parts of audio tapes capturing conversations between the defendant
and other alleged co-conspirators “can only be characterized as
potentially exculpatory evidence”).
            9
               See Garza, 435 F.3d at 75 (“where lost or destroyed
evidence is deemed to be only potentially exculpatory, as opposed
to apparently exculpatory, the defendant must show that the
evidence was destroyed in bad faith”); Femia, 9 F.3d at 994 (“we
find no due process violation with respect to evidence that no
longer exists because it was not destroyed in bad faith”); cf.
DiBenedetto, 272 F.3d at 12 (“We need not decide whether this meets
the ‘bad faith’ standard, because a closer look at the Supreme
Court decision in Trombetta indicates that DiBenedetto’s due
process claims falls short in other regards.”).
                               -18-
alternatives existed, including (1) inspecting the breathalyzer

machine, (2) raising an argument that radio waves or the diet of

the defendant influenced the results, or (3) cross-examining the

officer who administered the test.                     Id.         The irreplaceability

requirement was also recognized by this court in DiBenedetto, which

held    that     the    loss    of    a    blood    spot   on       a   sneaker    was   not

irreplaceable.          272 F.3d at 13.           In DiBenedetto, we compared the

blood spot to the breath samples in Trombetta: “in this case, the

evidence to be presented was not the spot itself, but rather the

test    results,        which   the       defendant     was     free     to    impeach   by

questioning the expert about the test methodology, the inconsistent

results, and, most importantly, about the test’s inability to

conclude the spot was even human blood.”                      Id.

               The defendant argues that Trombetta’s irreplaceability

requirement has been eliminated by Youngblood. We disagree. There

is     nothing     in     Youngblood         to     suggest     elimination        of    the

irreplaceability requirement.                   Also, while neither the Supreme

Court nor this court has directly addressed the irreplaceability

requirement in the context of apparently exculpatory evidence (as

opposed to potentially exculpatory evidence), we conclude that

proof    of    irreplaceability            is   required      in    both      apparent   and

potential exculpatory evidence cases.                   In all cases under Brady,

the defendant must demonstrate that the evidence was material to

establish a constitutional violation whether the prosecution acted

in good fath or bad faith.                See Brady v. Maryland, 373 U.S. 83, 87
                                             -19-
(1963); Kyles v. Whitley, 514 U.S. 419, 434-35 (1995); United

States     v.        Hansen,     434    F.3d      92,    102      (1st     Cir.     2006).

Irreplaceability         is     part    of   the     materiality         requirement   in

destroyed evidence cases, and it follows that the defendant in such

a   case   bears       the     burden   of     showing     that    the     evidence    was

irreplaceable.          See Trombetta, 467 U.S. at 489; Femia, 9 F.3d at

993.   Olszewski has not met that burden.

            The question of whether evidence is “to some extent

irreplaceable” is a legal question based on underlying facts.                          See

Trombetta, 467 U.S. at 489.             Here, the underlying facts are not in

dispute, so we must determine whether, in light of those undisputed

facts, the irreplaceability requirement has been satisfied.                            We

conclude that the destroyed evidence was not irreplaceable.                          There

has been no showing that Olszewski was unable to recreate the

substance       of    Strong’s    original        statement    through      testimony.10

Strong’s first statement was short, roughly one paragraph (and less

than one page).           There were no internal conflicts in Strong’s

testimony       about    the     content     of    the   statement,        and    Strong’s

testimony       about    the    statement      did   not    conflict       with    Sypek’s

testimony about the statement.


            10
               This case is unlike United States v. Cooper, 983
F.2d 928 (9th Cir. 1993), where the police destroyed laboratory
equipment allegedly used to manufacture methamphetamine. The Ninth
Circuit held that “[general] testimony about the possible nature of
the destroyed equipment would be an inadequate substitute.” Id. at
932.   In that case, no witness was directly familiar with the
destroyed evidence and there was no other record of the evidence,
e.g. photographs or laboratory tests.
                                -20-
            Perhaps most importantly, Olszewski did not show that

there was material information in the first statement that Strong

and Sypek could not recall.       Even though Strong appears to have

memory lapses as to surrounding events and could not remember the

statement “word for word,” he testified that he “mostly” remembered

what was in his first statement.      Likewise, although Officer Sypek

agreed on cross-examination that there might be “other things” in

the statement that he could not remember, he remembered “the

substance    of   the   statement.”    Thus,   at   best   the   testimony

established that the witnesses could not recall details in the

first statement unrelated to its substance.

            In short, although the loss of exculpatory information as

a result of the destruction of Strong’s first statement could

result in a due process violation,11 Olszewski has failed to show

that the statement contained additional, material information that

was lost as a result of the destruction.        Mere speculation about

the possible existence of additional, material evidence in the

destroyed statement is simply insufficient to demonstrate a due

process violation.


            11
                At oral argument, we asked the assistant attorney
general to “assume that Strong recalled that he had listed the
identity of another witness in the statement who was with them
during the supposed alibi period and he could not remember the name
of the person and the police could not remember the name. Would we
have a due process violation under those circumstances, assuming
bad faith?” In response, the assistant attorney general conceded
that “if there were such a piece of evidence in that statement that
nobody could recall but everyone knew there was a name in there,
you would have a due process violation.”
                                -21-
            Olszewski   also    argues       that   his    statement   was

irreplaceable because cross-examining Strong and the police about

the statement was not sufficient because it “forced Olszewski to

try to prove his case through impeachment of a damaging, hostile

witness.”     Trombetta itself involved the need to recreate the

evidence through hostile witnesses, but there is no suggestion that

this is insufficient.

            Because Olszewski has not shown that he was “unable to

obtain comparable evidence by other reasonably available means,” we

conclude that the destruction of Strong’s statement was not a

violation of due process under the Supreme Court’s decisions in

Trombetta, Youngblood, and Fisher.

                                     IV.

            Olszewski next argues that the prosecution made a number

of   prejudicial   statements   in    closing   argument   that   violated

Olszewski’s due process rights.            For this kind of due process

challenge to succeed, “it is not enough that prosecutors’ remarks

were undesirable or even universally condemned . . . .”           Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks

omitted).    Rather, as the Supreme Court has made clear, “[t]he

relevant question is whether the prosecutor’s comments ‘so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.’” Id. (quoting Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974)).      In assessing whether the prosecutor’s

“improper statements during closing argument require[s] a new
                             -22-
trial, we examine (1) whether the prosecutor's conduct was isolated

and/or deliberate; (2) whether the trial court gave a strong and

explicit cautionary instruction; and (3) whether it is likely that

any prejudice surviving the judge's instruction could have affected

the outcome of the case.”    United States v. Lowe, 145 F.3d 45, 50

(1st Cir. 1998)

          Two     of   the    prosecutor’s   statements    involved

misdescriptions of the evidence, and the court gave a curative jury

instruction urging the jury to disregard the statements.12     This


          12
               Olszewski argues that the prosecutor improperly
stated that Olszewski demonstrated a lack of remorse because
Olszewski did not have contact with the Welch family “[e]ven after
[Joanne’s] body was found.” Defense counsel objected, explaining
that Olszewski attended Welch’s wake, and the judge immediately
instructed the jury:

          there was a mention made with regard to any
          contact between the defendant and the Welch
          family.      If   that  should   possibly   be
          interpreted as a suggestion that the defendant
          did not attend the wake of the deceased, that
          should be ignored completely.    There was no
          evidence one way or the other on that point,
          but no inference should be drawn that that was
          true if any suggestion to that effect was
          made.

          Olszewski also contends that he was prejudiced by the
prosecution’s closing-argument reference to a witness’s opinion
that Olszewski was guilty. Defense counsel objected, arguing that
the statement had previously been excluded.       The trial judge
immediately instructed the jury:     “[i]f there was . . . any
argument with regard to any of the witnesses expressing an opinion
as to the guilt or innocence of the defendant, I ask you to ignore
that also.”   In the jury charge, the judge further instructed:
“There was in the course of the trial certain evidence which I
ordered stricken. . . . You must not consider any evidence which
has been stricken. Please do everything in your power to put that
completely out of your mind. Once it is stricken, it should play
                               -23-
court    has    consistently     held    that    where     the     prosecutor

unintentionally misstates the evidence during closing argument, a

jury instruction ordinarily is “sufficient to cure any potential

prejudice,”13 particularly where, as here, the instruction was given

immediately after the statement.        There is no suggestion here that

the prosecutor deliberately misstated the evidence.              We find that

these   instructions   were    sufficient   to   cure    any   error   by   the

prosecutor.

           Olszewski also complains that the prosecutor personally

vouched for Olszewski’s guilt.      The prosecutor stated: “ladies and

gentlemen, there is no fear in my voice when I say to you that

either Phil Strong killed this girl or the defendant killed her.

Absolutely none.”      He then suggested that because Strong had no

motive or opportunity, the killer had to be Olszewski.                 Defense

counsel objected, and the trial judge gave an immediate limiting

instruction:     “It is important to remember that anything that

counsel says in closing argument is not evidence.              I think I made

that point before and I want to re-emphasize it.”              The judge also

gave an instruction in the jury charge itself:            “[Y]ou must make



no part in your deliberations.”
           13
               United States v. Bey, 188 F.3d 1, 9 (1st Cir. 1999);
see also United States    v. Ortiz, 447 F.3d 28, 35-36 (1st Cir.
2006) (holding that where the prosecutor inadvertently misstated
the evidence any prejudice was cured by the trial judge’s jury
instruction); Lowe, 145 F.3d at 50 (“The court [through a curative
instruction] properly accounted for any possible prejudice from the
government’s remark.”).
                               -24-
your determination of the facts on the basis of the evidence which

has been presented in the course of the trial. . . . The evidence

does not include anything that either counsel may have said at any

time in the course of the trial.”

            This court has stated that “the representative of the

government approaches the jury with . . . tremendous credibility

but that personal credibility is one weapon he must not use.”

United States v. Gonzalez Vargas, 558 F.2d 631, 633 (1st Cir.

1977).     This case is distinguishable from cases such as Gonzalez

Vargas   where     the   prosecutor’s   argument   was   held   to   deny   due

process.     Id.    In Gonzalez Vargas, the prosecutor told the jury

what he “personally believe[d]” on four separate occasions, and the

court failed to give any curative jury instruction. Id. at 632-33.

Here, while the prosecutor may have erred in stating his personal

opinion to the jury, the statement was brief and the trial court’s

instructions to the jury sufficiently corrected for any potential

prejudice.14

            In two other instances there was no curative instruction.

Olszewski contends that the prosecutor improperly questioned the

credibility of two witnesses, Lori Garvey and Michelle Herrieux-

Bernier, who gave statements that they saw Joanne Welch between 7


            14
               The Supreme Judicial Court noted, “[A] single
unfortunate and unartful isolated instance of the use of the first-
person pronoun ... in the course of a legitimate argument as to the
inferences the jury should draw from the evidence does not
constitute error.” Commonwealth v. Olszewski, 416 Mass. at 726,
625 N.E.2d at 541-42 (internal citations omitted).
                               -25-
and 9 P.M. on January 28, 1982, by arguing that “it didn’t happen

[until] eight years later that this information [came] forward.”

In fact, at least one of these witnesses testified at Olszewski’s

first trial.     There was no curative instruction because Olszewski

did not object to this statement at trial.               We are not persuaded

that this fleeting comment “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.”

Darden, 477 U.S. at 181.

            In   the    other   instance,    Olszewski      argues    that   the

prosecutor improperly urged the jury to infer, from the fact that

Olszewski’s father did not testify at the trial, that the father’s

testimony would have been adverse to Olszewski.                   There was no

curative    instruction.        Indeed,    the   trial   court    approved   the

argument in advance and instructed the jurors that they could infer

that the witness “would have given testimony unfavorable to”

Olszewski if the jurors found that the witness was available, was

“friendly   to   or    at   least   not   hostilely   disposed     toward”   the

defendant, and could “be expected to give testimony of distinct

importance to the case.”

            The surrounding facts are as follows:                At Olszewski’s

first trial, his father testified that, around 6:30 P.M. on January

28, 1982, he picked his son up on Hillcrest Avenue in West

Springfield and brought him home.                Olszewski’s father did not

testify at the second trial.          According to Strong’s testimony at

the second trial, Olszewski informed Strong that Olszewski’s father
                                -26-
had picked him up in Westfield (where the body was found) after the

murder (later than 6:30 P.M.).     In closing, the prosecutor argued:

“ladies and gentlemen, his father has been here for two weeks

sitting here watching this case.    You can infer by the fact that he

didn’t get up and tell you that he didn’t pick up his son, you can

infer from that . . . that he did pick up his son in Westfield,” in

accordance with Strong’s version of events.

          A jury may draw an adverse inference from a witness’s

failure to testify if “the evidence shows that the witness is

available to testify on behalf of the party, that the testimony of

the witness would be relevant and noncumulative, and that the

witness is not prejudiced against the nonproducing party.”     United

States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir. 1981).      We find

that this standard is met here where Olszewski’s father was present

at the trial, his testimony was relevant, and he was not apparently

prejudiced against Olszewski.     However, the defendant argues that

the statement was constitutionally improper because the prosecution

misrepresented the likely testimony of the witness.

          We agree that under the decisions of the Supreme Court a

due   process   violation   may      occur   when   the   prosecution

mischaracterizes the earlier sworn testimony of a witness.     Miller

v. Pate, 386 U.S. 1, 7 (1967).      That is not what happened here.

The prosecutor in closing did not misstate the father’s testimony

at the first trial.    The prosecutor was not required to assume

that, if the father were to testify again, his testimony would be
                                 -27-
favorable to Olszewski given the possibility that Olszewski’s

father could change his testimony were he to testify a second time.

Under these circumstances, we fail to see how the prosecutor’s

“missing witness” argument violated Olszewski’s due process rights.

           Finally, we conclude that any prejudice caused by the

prosecutor’s closing argument was far outweighed by the strength of

the government’s evidence against Olszewski.            See United States v.

Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (considering “the

strength   of   the   evidence    against    the    defendant”).       Strong’s

testimony recounted Olszewski’s confession in detail, contained

facts that would only have been known to someone involved in the

murder, and was consistent with Welch’s extensive injuries.                   The

prosecution also presented evidence that Olszewski had a motive to

kill Welch, that he threatened to kill Welch, and that Welch

intended to meet with Olszewski on the night of the murder.

           Accordingly, we conclude that the prosecutor’s statements

in   closing      argument,   whether       considered     individually       or

cumulatively, did not constitute a due process violation.

                                     V.

           Olszewski argues that he suffered ineffective assistance

of counsel when his trial counsel failed to explain to the court

that she did not call Olszewski’s father as a witness because of

her concern that the father’s hostility toward the prosecution

might damage the jury’s perception of Olszewski.               If the court had

received   this    information,    Olszewski       contends,    it   would   have
                                    -28-
prohibited the prosecution from arguing in closing that Olszewski’s

failure to call his father was grounds to infer that the father’s

testimony would have been adverse to Olszewski. The district court

concluded    that   Olszewski’s   ineffective    assistance   claim   was

defaulted in the course of the state court proceedings and thus was

not available for relief on habeas.      We agree.

            We are precluded from reviewing state court decisions on

habeas review if the decision rests on “independent and adequate

state ground[s].”     Simpson v. Matesanz, 175 F.3d 200, 205-06 (1st

Cir. 1999) (citing Trest v. Cain, 522 U.S. 87, 118 S.Ct. 478, 480

(1997)).    “[I]ndependent and adequate state grounds exist where

‘the state court declined to hear [the federal claims] because the

[defendant] failed to meet a state procedural requirement.’”          Id.

(quoting Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)).

Under Massachusetts law, after a defendant’s direct appeal is

completed, the Supreme Judicial Court cannot review        appeals from

the denial of collateral attacks on a defendant’s conviction unless

a single justice finds the claims to be “new and substantial.”        Id.

(citing Mass. Gen. Laws ch. 278, § 33E).        This court has held that

“[w]here there has been procedural waiver below, the denial of

review under § 33E [because the claim is not new and substantial]

is an independent and adequate state ground that bars federal

habeas review.”     Id.

            The default here concerns the new trial proceedings in

                                  -29-
the Massachusetts state court, proceedings that were somewhat

complex.   After Olszewski’s second trial, but before his direct

appeal, Olszewski’s trial counsel filed a motion for a new trial,

which the trial judge denied on the merits.      This motion did not

raise an ineffective assistance of counsel claim.        Olszewski’s

conviction was affirmed on direct appeal.     The direct appeal also

did not raise an ineffectiveness claim.

           After his direct appeal, Olszewski filed a pro se motion

for a new trial, arguing that (1) his trial counsel was ineffective

for not calling Olszewski’s father as a witness (we refer to this

ineffectiveness claim as “the failure to call claim”) and (2)

appellate counsel was ineffective for failing to raise the failure

to call claim on direct appeal.   The trial judge denied the pro se

motion.    Olszewski then filed a motion for appointment of counsel,

which a single Supreme Judicial Court justice granted.         After

counsel was appointed, but still acting pro se, Olszewski filed a

motion to amend his motion for a new trial.     His pro se motion to

amend again raised the failure to call claim.    Three months later,

Olszewski, now through counsel, filed a second motion to amend,

arguing for the first time that his trial counsel was ineffective

for failing to inform the court of the reason for not calling

Olszewski’s father to testify.     We refer to this ineffectiveness

claim as the "communication claim."     The trial court rejected both

ineffectiveness claims.   The trial judge held that the failure to


                                 -30-
call claim was “already raised in the ... new trial motion [filed

pro se after the direct appeal], which was argued, considered and

denied.”   The trial judge rejected the communication claim because

it should have been raised in the second new trial motion and was

not new.

            On a petition for leave to appeal, the issues were

addressed by a single justice of the Supreme Judicial Court who

ruled that the claims were “not new.”           We understand the single

justice's ruling that the claims were “not new" to rest on two

separate grounds:     first, as to the failure to call claim, the

single justice concluded that the “missing witness” argument had

been   fully   considered   on   the   direct   appeal;   that   counsel's

ineffectiveness in failing to call the father as a witness could

have been raised on direct appeal; and that there was no showing

that appellate counsel had been ineffective in presenting the

appeal.    In this connection, the single justice stated:

            given (1) the full bench’s thorough evaluation
            of the “missing witness” issue and its ruling,
            after    plenary   review,    to   affirm  the
            conviction; and (2) the absence of any proof
            that counsel was constitutionally ineffective
            in   presenting   the   appeal,  I   find  the
            defendant’s claim is not new.

            Second, with respect to the communication claim, the

single justice concluded that counsel in the second new trial

motion had presented a closely related ineffectiveness argument

(the failure to call claim), and that the communication claim was

                                   -31-
not new because it could have been raised in the earlier new trial

motion.   The single justice stated, “The strategic decision to

press one approach in a motion for a new trial rather than another

does not make the claim new.”

          We think that the single justice's ground for finding the

communication claim not new - that is, the failure to raise it in

the new trial motion after the direct appeal - constitutes an

independent and adequate state ground for the refusal to consider

the communication claim, and is completely unrelated to the merits.

The defendant's argument to the contrary rests on reading the

single justice's first ground for denying relief as related to the

communications claim. While the single justice's opinion is hardly

a model of clarity, we do not read that opinion as disagreeing with

the trial judge's reasons for rejecting the claim - which clearly

were grounded in the failure to raise the communication claim in

the new trial motion filed after the direct appeal.     Rather, we

read the single justice's opinion as agreeing with that decision.

Moreover, we do not see how the single justice could have intended

to tax counsel for failure to raise the ineffectiveness issue

(concerning the failure to communicate with the trial judge) on

direct appeal since the record on direct appeal would not have

supported such an argument. Accordingly, we hold that the district

court was correct to deny habeas review of the communication




                                -32-
claim.15

                                VI.

           Finally, Olszewski argues that his Sixth Amendment rights

were violated when the trial judge excused a sitting juror on the

basis of ex parte communications.     We reject this contention as

well.

           The jury for Olszewski’s second trial was impaneled in

Pittsfield (Berkshire County), to be sequestered in Springfield

(Hampden County). During jury selection, a prospective juror asked

to be excused on the ground that sequestration would cause personal

hardship because his wife was ill and needed at-home care.        The

judge rejected the excuse and the juror was impaneled along with

fifteen others.    When the prospective juror returned home that

evening, his wife became distraught that she would be left alone.

That night, the juror’s son telephoned the judge and stated that

his mother could not be left alone.   After contacting the juror’s

wife’s physician for confirmation of her condition, the judge

excused the juror from further service on grounds of hardship. The

judge informed counsel for both parties of these events in court

the next day.   The excused juror was replaced by an alternate.

           15
               Even when a petitioner’s claims are procedurally
barred, this court may review the claims if     “the prisoner can
demonstrate cause for the default and actual prejudice” or “that
failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991).   Olszewski does not argue that either of these exceptions
applies here.
                               -33-
            The defendant here does not assert that the trial judge

erred in excusing the juror, and it is well established that “[t]he

decision to substitute an alternate juror is committed to the sound

discretion of the trial court” and will not be overturned “absent

a showing of bias or prejudice to the defendant.”16            United States

v. Corsino, 812 F.2d 26, 33 (1st Cir. 1987) (internal citations

omitted).        Rather, the defendant contends that he had a Sixth

Amendment right to be present when the trial judge communicated

with the juror’s son and doctor, and when the juror was excused.

            “[T]he right to personal presence at all critical stages

of the trial ... [is a] fundamental right[ ] of each criminal

defendant.”      Rushen v. Spain, 464 U.S. 114, 117 (1983).       This right

must be balanced against “the necessity for preserving society’s

interest in the administration of criminal justice.”            Id. at 118.

We see no basis for Olszewski’s claim that the judge’s action in

excusing the juror violated his Sixth Amendment rights.            Nor do we

think   that     the   judge’s   ex   parte   communications    amounted    to

prejudicial error.       Unrecorded ex parte communications between a

trial judge and a juror are subject to harmless error review.              Id.

at 119-20.       Error is harmless where “the jury’s deliberations, as

a whole, [are] not biased by the undisclosed communication.”               Id.


            16
               In fact, the Supreme Judicial Court found that it is
“obvious that the defendant would not have opposed excusing the
juror” where defense counsel “did not move for a mistrial, or
request empanelment of an additional juror or any other remedial
measure.” Olszewski, 416 Mass. at 722, 625 N.E.2d at 539.
                               -34-
at 121.   Olszewski has not alleged that the jury was biased by the

ex parte communications.

           This case is like United States v. Evans, 352 F.3d 65 (2d

Cir. 2003), where a juror suffered an asthma attack during trial.

That evening, the trial judge telephoned the juror ex parte and was

told that the attack was “more serious than usual” and that the

juror’s doctor instructed him to stay at home.    Id. at 68.   While

on the telephone, the judge excused the juror.     Id.   The Second

Circuit found that any error was harmless because the juror was

excused “well before” the case was sent to the jury, the remaining

jurors were “not adversely influenced,” and the dismissal did not

“produce a drastic shift in the jury’s composition.”     Id. at 70.

           The lack of prejudice in this case is particularly clear

where there is no suggestion that the juror discussed the case with

other jurors; he was dismissed before the trial began; and counsel

was informed of the communications the next morning at which time

there was no suggestion of actual or potential prejudice or any

request for curative action by the trial court.    Indeed, that the

judge dismissed the juror before court reconvened in the morning

helped to ensure that the remaining jurors would not be prejudiced

by the dismissed juror’s dissatisfaction. Accordingly, we conclude

that the district court correctly denied habeas relief as to this

claim.




                                -35-
                    VII.

The decision of the district court is

Affirmed.




                    -36-
