Opinion
Civil Action No. 03-10156-GAO.
March 17, 2005
MEMORANDUM AND ORDER
Notwithstanding the petitioner's possible failure to exhaust his "cumulative error" claim in ground two of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, his petition ought to be and hereby is denied on the merits, essentially for the reasons advanced in Parts II and III of the Respondent's Memorandum of Law in Opposition to the Petition for Habeas Corpus (Dkt. No. 14). See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
As the underlying facts are not in dispute, the petitioner is entitled to habeas relief only if the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. § 2254(d)(1); Price v. Vincent, 538 U.S. 634, 639-40 (2003). A state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). An "unreasonable application" of Supreme Court precedent occurs if "the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Id.
In its analysis of the trial judge's limitation on the cross-examination of Christopher Rogovich, the Massachusetts Supreme Judicial Court (SJC) stated:
Although the judge may have defined the [attorney-client] privilege too broadly by precluding testimony of all conversation between Rogovich and his attorney, this limitation was harmless, as the defense attorney amply explored the entire subject of immunity with Rogovich.
. . . .
Thus, even were we to construe the judge's limitation on cross-examination as overly broad, the defense was allowed to elicit sufficient information about the background of the immunity agreement in an effort to demonstrate the witness's bias.Commonwealth v. Sullivan, 761 N.E.2d 509, 515-16 (Mass. 2002). Although the SJC did not refer to United States Supreme Court precedent, its analysis and conclusion were both reasonable and consistent with Supreme Court precedents regarding how to determine whether a particular limitation on cross-examination violates the defendant's confrontation rights under the Sixth and Fourteenth Amendments. See Delaware v. Van Arsdall, 475 U.S. 673, 679-81, 684 (1986); see also DiBenedetto v. Hall, 272 F.3d 1, 10 (1st Cir. 2001); Bui v. DiPaolo, 170 F.3d 232, 242 (1st Cir. 1999).
In ground two of his petition, the petitioner makes vague reference to the principles of due process and the right to a fair trial, but he also points out that "[t]he SJC decision did not use a federal harmless error analysis" in considering the propriety of the prosecutor's statements at trial regarding the immunized witness. Pet. at p. 5. The SJC reviewed the prosecutor's opening statement and closing argument "to determine whether any error created a substantial likelihood of a miscarriage of justice" under Massachusetts law. Sullivan, 761 N.E.2d at 513 (finding no error). The SJC's decision is not contrary to clearly established federal law in this area, and if the issue had been explicitly analyzed in terms of federal constitutional principles, the outcome would have been the same. See United States v. Young, 470 U.S. 1, 15 (1985).
The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
It is SO ORDERED.