Connolly v. Roden
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and William E. Smith*, U.S. District Judge. Published. * Of the District of Rhode Island, sitting by designation. [13-1191]
Case: 13-1191
Document: 00116691104
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Date Filed: 05/21/2014
Entry ID: 5825238
United States Court of Appeals
For the First Circuit
No. 13-1191
EVERETT H. CONNOLLY,
Petitioner, Appellant,
v.
GARY RODEN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson, Circuit Judge,
and Smith,* District Judge.
Robert F. Hennessy, with whom Thompson & Thompson, PC was on
brief, for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General of Massachusetts, was on
brief, for appellee.
May 21, 2014
*
Of the District of Rhode Island, sitting by designation.
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LYNCH, Chief Judge.
Date Filed: 05/21/2014
Entry ID: 5825238
Petitioner Everett Connolly seeks
the grant of habeas corpus vacating his state court convictions
from 2006 for drug distribution and trafficking on the grounds that
the state proceedings violated his federal Confrontation Clause
rights, as articulated in Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009).
The Massachusetts Supreme Judicial Court (SJC) had
acknowledged that there was Melendez-Diaz error but found it
harmless under a standard equivalent to the federal standard under
Chapman v. California, 386 U.S. 18, 24 (1967).
On federal habeas review, the district court denied the
petition, reasoning that the state courts had already found that
the error was harmless and that the petitioner could not show
sufficient injury under the highly deferential standards announced
by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637
(1993), and Fry v. Pliler, 551 U.S. 112, 119-20 (2007).
See
Connolly v. Roden, No. 09-11987, 2013 WL 139702, at *3 (D. Mass.
Jan. 11, 2013).
We affirm. We conclude that under the Brecht standard of
review, which is even more deferential than the ordinary standard
of review under the Antiterrorism and Effective Death Penalty Act
("AEDPA"), 28 U.S.C. § 2254(d)(1), petitioner has failed to show
the "substantial and injurious effect or influence" required to set
aside the SJC's affirmance of his conviction. Fry, 551 U.S. at 116
(quoting Kotteakos v. United States, 386 U.S. 750, 776 (1946)).
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I.
The vast majority of the key facts of this case are
undisputed.
Massachusetts
law
enforcement
officers
began
investigating Connolly for suspected cocaine distribution in 2003.
The investigation included surveillance and observation by police
officers, which found Connolly making numerous apparent drug sales
using his minivan.
(Mass. 2009).
Commonwealth v. Connolly, 913 N.E.2d 356, 361
On two separate occasions in August 2004, an
undercover officer made controlled purchases of crack cocaine from
Connolly.
During the first purchase, the undercover officer
obtained what was later measured to be 1.2 grams of crack cocaine
for $200.
In the second, the officer obtained 0.56 grams of crack
cocaine for $100.
In light of the controlled purchases, the police obtained
an arrest warrant for Connolly and a search warrant to search
Connolly's minivan and its occupants.
were
executed
on
September
9,
Id. at 362.
2004.
During
The warrants
the
search
of
Connolly's minivan, the police found a "large ball" of crack
cocaine,1 "wrapped in electrical tape and later determined to weigh
124.31 grams," wedged under the dashboard.
Id.
Connolly was indicted by a state grand jury in December
2004 on two counts of cocaine distribution and one count of cocaine
1
Cocaine, ordinarily a powder, can be processed into crack
cocaine, a solid, "rock-like" substance. See, e.g., United States
v. Brown, 450 F.3d 76, 80-81 (1st Cir. 2006).
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trafficking.2
See
Mass.
Page: 4
Gen.
Date Filed: 05/21/2014
Laws
(distribution), 32E(b)(3) (trafficking).
ch.
94C,
Entry ID: 5825238
§§
32A(c)
At trial in August 2006,
the prosecution introduced several pieces of evidence to prove drug
type and, as to the trafficking charge, quantity.3
With respect to
the controlled purchases, Detective Lieutenant John Allen, who had
25
years
of
experience
in
narcotics,
testified
that
he
had
personally field-tested the substances at the time of each of the
two August 2004 purchases and concluded that they were cocaine; the
undercover officer who made the purchases also testified that
Connolly had said the substances were crack cocaine. Connolly, 913
N.E.2d at 375.
With respect to the cocaine found during the
minivan search, Sergeant John Milos, who had investigated hundreds
of cocaine distribution cases over seventeen years of experience,
testified that field tests showed the ball recovered from the van
was cocaine. Id. Trooper James Bazzinotti, who had thirteen years
of experience in conducting drug searches, further testified that
the substance was cocaine, and that the ball looked "like a baked
potato," was "bigger than a baseball," and was a "large ball,
2
Unlike federal drug trafficking laws, see, e.g., 21 U.S.C.
§ 841, Massachusetts law does not distinguish between powder
cocaine and "cocaine base," or crack cocaine.
3
For all counts, the prosecution had to prove that the
substance in question was cocaine.
The distribution counts,
however, did not require any evidence of quantity; that evidence
was relevant only to the trafficking count, for which the
prosecution had to prove a quantity of between 100 and 200 grams.
See Mass. Gen. Laws ch. 94C, §§ 32A(c), 32E(b)(3).
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hard," and was "a very solid piece" of cocaine.
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Id. at 375-76.
The jury also had direct physical access to the actual cocaine,
which was sent to the jury room, although the ball was "more
flaked, more crushed up" after the chemical analysis.
Id. at 376.
The Melendez-Diaz problem in the case arose because the
prosecution also introduced a certificate from the drug analysis
laboratory explaining that the powder in the ball was cocaine and
weighed 124.31 grams, without calling the analyst as a witness and
so not making the analyst available for confrontation. At the time
the certificate was admitted, the judge instructed the jury that
under Massachusetts law, the prosecution was not required to offer
live testimony from the analyst and could introduce the certificate
alone without any adverse inferences being drawn due to the
analyst's absence.
Connolly objected to the admission of the
certificate on Fourth Amendment grounds but not on Confrontation
Clause grounds.
He did not ask to cross-examine the analyst who
prepared the lab certificate, nor did he object to the jury
instruction on Confrontation Clause grounds.
instructions
allowed
the
jury
to
The closing jury
consider
the
laboratory
certificate but cautioned that "[i]t's for you to determine whether
you credit it or not. . . . [Y]ou're not compelled to accept it."
Connolly's theory of the case was that the prosecution
had not adequately proven that he was the drug possessor.
identified
potential
weaknesses
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in
the
testimony
of
He
the
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government's
witnesses
to
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argue
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that
there
was
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insufficient
evidence that he was actually involved in the two controlled
purchases or that he was aware that the ball of crack was in his
van.
Connolly made no challenge to the quantity of crack for
purpose of the trafficking charge.
In fact, in closing arguments,
his attorney appeared to accept the quantity at face value and
challenged only identity, arguing: "[t]he Commonwealth has to prove
to you beyond a reasonable doubt that Mr. Connolly knew that those
124 grams w[ere] in his vehicle on the morning in question.
I
suggest to you there's no proof of it."
The jury convicted Connolly on all counts. Following the
conviction, Connolly appealed to the Massachusetts Appeals Court.
In January 2009, the SJC transferred the case to its own docket sua
sponte for direct review.
While the case was pending in the SJC,
the U.S. Supreme Court decided Melendez-Diaz v. Massachusetts,
which
held
that,
absent
a
showing
of
unavailability,
the
introduction of a lab certificate without the opportunity to crossexamine the technician who created it violates a defendant's Sixth
Amendment Confrontation Clause rights. 557 U.S. at 311. Following
Melendez-Diaz, Connolly presented the narrow argument that his
conviction must be reversed because the trial judge had given a
contemporaneous jury instruction upon the introduction of the
certificates stating that the prosecution was not required to
produce the lab analyst, in violation of his Confrontation Clause
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He had not raised that argument at any earlier point in
the litigation.
The SJC read Connolly's argument charitably in his favor
by considering not only the instruction but also whether admission
of the certificates themselves was error. See Connolly, 913 N.E.2d
at 374-75.
It decided that there was Melendez-Diaz error in
admitting the certificates without presenting the analyst for
cross-examination,
but
rejected
Connolly's
conviction must be reversed on that account.
claim
that
his
Using a state law
standard analogous to the federal standard for harmless error and
reading any potential waiver problem in Connolly's favor, the SJC
reasoned that any error "was harmless beyond a reasonable doubt"
because the jury had ample evidence aside from the lab certificates
from which it could have concluded that the quantity of cocaine was
between
100
California,
and
386
200
U.S.
grams.
18,
Id.
24
at
(1967)
374-76;
cf.
(explaining
Chapman
that
v.
federal
constitutional error is harmless only if the reviewing court can
"declare a belief that it was harmless beyond a reasonable doubt").
It likewise rejected Connolly's other claims of error and affirmed
the conviction.
Connolly petitioned for habeas review in federal district
court under 28 U.S.C. § 2254. He argued that the state proceedings
had
violated,
inter
alia,
his
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Sixth
Amendment
rights
under
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Melendez-Diaz.4
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For the first time, he argued that the prejudice
came from the actual admission of the certificate without the
analyst's live testimony (rather than from the contemporaneous jury
instruction).5
denied
In a thorough opinion, the federal district court
Connolly's
petition.
The
court,
applying
the
Brecht
standard, concluded that "the erroneous admission of the chemical
analyses did not have a substantial and injurious effect on the
verdict with respect to the weight of cocaine charged."
2013 WL 139702, at *3.
Connolly,
The court reasoned that although the jury
likely did rely on the certificates, the significant amount of
other evidence, "including especially the jurors' opportunity to
directly examine the cocaine itself," meant that any injury from
admitting the certificates was "not substantial enough to allow
habeas relief under Brecht."
Id.
4
Connolly also made other claims of error no longer at
issue. The district court rejected each of these arguments but did
include them all in the later certificate of appealability. See
Connolly v. Roden, No. 09-11987, 2013 WL 531126, at *1 (D. Mass.
Feb. 13, 2013).
At oral argument, Connolly's counsel rightly
conceded that the Melendez-Diaz claim was the only viable claim.
We do not discuss the others.
5
Although Connolly's argument has shifted from the way he
presented it to the SJC, he has nonetheless satisfied the
exhaustion requirements of 28 U.S.C. § 2254(b) because the SJC
explicitly reached the argument he is now making, so he would be
barred from raising them again in state court under principles of
res judicata. See id. § 2254(c).
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II.
We review the district court's denial of a petition for
a writ of habeas corpus de novo where, as here, the court has taken
no evidence and has not made its own factual findings.
See, e.g.,
Kirwan v. Spencer, 631 F.3d 582, 587 (1st Cir. 2011).
A.
We begin by describing the applicable legal standards
regarding habeas and constitutional error.
In 1967, the Supreme
Court in Chapman v. California articulated the constitutional
harmless error standard, which provides that, on direct appellate
review, an error at trial affecting the defendant's constitutional
rights will be deemed harmless only if it can be shown to be
harmless beyond a reasonable doubt.
386 U.S. at 24.
The Court has
also repeatedly made clear, however, that the standards that apply
on collateral review may differ from those that would apply on
direct review.
See Brecht, 507 U.S. at 634.
To that end, the
Court has held that a federal court on collateral review of a state
appellate court's application of Chapman should not apply the same
harmless
error
standard
prejudice" standard.
but
instead
should
use
an
"actual
Id. at 637 (quoting United States v. Lane,
474 U.S. 438, 449 (1986)) (internal quotation marks omitted).
Specifically, as the Court explained in Brecht v. Abrahamson, a
habeas petitioner in such a case must show that the error "had
substantial and injurious effect or influence in determining the
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jury's verdict." Id. (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)) (internal quotation marks omitted).6
That was the
law before Congress intervened.
In 1996, Congress passed AEDPA, which provides that a
habeas petition may not be granted unless the state 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."
28 U.S.C. § 2254(d)(1).
In Mitchell
v. Esparza, 540 U.S. 12, 18-19 (2003) (per curiam), the Court
applied the AEDPA standard to a state court's use of Chapman,
explaining
that
"when
a
state
court
determines
that
a
constitutional violation is harmless [under Chapman], a federal
court
may
not
award
habeas
relief
under
§
2254
unless
the
harmlessness determination itself was unreasonable." Fry, 551 U.S.
at 119 (describing Mitchell).
Four years later, the Court returned to this field in Fry
v. Pliler.
In Fry, the state courts had not applied Chapman to
determine whether a constitutional error at trial was harmless.
See id. at 115.
Without overruling Esparza, the Court ruled that
6
Although it does not say so explicitly, Fry's language
strongly implies that the burden is on the petitioner. The Fry
Court reaffirmed "the requirement that a petitioner also satisfy
Brecht's standard" in certain cases. 551 U.S. at 119 (emphasis
added); see also Dominguez v. Duval, 527 F. App'x 38, 40 (1st Cir.
2013) (explaining that habeas standards under AEDPA "requir[e] a
habeas petitioner to show a state court's unreasonable application
of Supreme Court law").
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the Brecht standard still governs, regardless of whether the state
court applied Chapman.
Id. at 119.
combined
standard
AEDPA/Chapman
As the Court explained, the
announced
in
Esparza,
"which
requires only that the state court's harmless-beyond-a-reasonabledoubt determination be unreasonable," is "more liberal" than the
Brecht "actual prejudice" standard.
Id. at 119-20.
As a result,
the Court held, the Brecht standard "obviously subsumes" the
Esparza standard, and federal courts need not formally apply both
tests; the Brecht test alone is sufficient.
The
Courts
of
interpretations of Fry.
Appeals
have
Id. at 120.
differed
in
their
Some have concluded that Fry bars the use
of the Esparza standard entirely. See Wood v. Ercole, 644 F.3d 83,
94
(2d
Cir.
2011)
("[W]e
conclude
that
the
'unreasonable
application of Chapman' standard does not survive Fry.").
Others
have concluded that the Supreme Court mandated a two-part test,
under which a habeas petitioner must first show that the state
court's application of Chapman was unreasonable under AEDPA and
then must show that the state proceedings had "substantial and
injurious effect or influence" under Brecht.
See Johnson v.
Acevedo, 572 F.3d 398, 404 (7th Cir. 2009) ("If the state court has
conducted a harmless-error analysis, the federal court must decide
whether that analysis was a reasonable application of the Chapman
standard.
If the answer is yes, then the federal case is over and
no collateral relief issues. . . . If the answer is no -- either
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because the state court never conducted a harmless-error analysis,
or because it applied Chapman unreasonably -- then § 2254(d) drops
out of the picture and the federal court must . . . apply the
Brecht standard to determine whether the error was harmless."
(emphasis added)); see also Gongora v. Thaler, 710 F.3d 267, 274
(5th Cir. 2013) (per curiam) (contemplating two-step process in
dicta), reh'g en banc denied, 726 F.3d 701, cert. denied, 134 S.
Ct. 941 (2014).
Still other circuits have adopted a flexible approach,
explaining that "a habeas court remains free" to apply the Esparza
test and end the case if the state court's decision was reasonable,
but emphasizing that the court need not do that and may instead "go
straight to Brecht with full confidence that the AEDPA's stringent
standards will also be satisfied."
F.3d 403, 413 (6th Cir. 2009).7
Ruelas v. Wolfenbarger, 580
This circuit has not yet weighed
in on the issue.8
7
Many of the cases attempting to apply Fry have also
generated vigorous dissents. Given the apparent disagreement both
between and within the various circuit courts, this field may be
ripe for Supreme Court review.
8
Petitioner cites Foxworth v. St. Amand, 570 F.3d 414, 435
(1st Cir. 2009) to argue that this circuit has already reached the
issue.
According to Connolly, Foxworth announced yet another
alternative, that no deference to the state court is owed at all.
Foxworth
We do not read Foxworth to support that conclusion.
explicitly acknowledges that Brecht is "more forgiving" than the
Esparza test. Id. We read this dicta in Foxworth as permitting,
but not requiring, direct application of the Brecht standard.
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We agree with the Sixth Circuit's flexible approach.
As
that court noted, Esparza has not been overruled; consequently, we
do not read Fry to bar the use of the Esparza test entirely.
Contra Wood, 644 F.3d at 94.
At the same time, Fry does explicitly
state
makes
that
"it
certainly
application of both tests."
added).
no
sense
to
require
formal
Fry, 551 U.S. at 120 (first emphasis
Thus, we do not follow those circuits that require a two-
step process.
Instead, we note that Fry established that the
Brecht standard is harder to satisfy than the Esparza standard, and
that any case where the petitioner can show prejudice under the
Brecht standard will necessarily meet the Esparza/AEDPA standard.
There
is
clear
logic
to
that
position:
if
an
error
had
a
"substantial and injurious" effect on a jury's verdict (Brecht
standard), then it is necessarily unreasonable to conclude that the
error was harmless beyond a reasonable doubt (Esparza standard).9
See Ruelas, 580 F.3d at 412-13.
Given that logical framework, we conclude that when a
state court decides that a constitutional error is harmless beyond
a reasonable doubt under Chapman, a federal court on habeas review
may choose between two equally valid options.
The court may apply
Esparza and then move on to the Brecht test only if the state
9
This reasoning applies when the federal habeas court is
reviewing the same record as the state court. We need not consider
the alternative case.
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court's decision was an unreasonable application of Chapman.
Alternatively, the court may begin with the Brecht test directly.10
B.
With this framework in mind, we turn to the facts of this
case.
This case lends itself to the first approach, because the
petitioner has not met his burden to make the threshold showing
that the SJC's conclusion that any error was harmless under
Chapman11 was unreasonable.
The error asserted, to be clear, is not that the lab
reports contained factual inaccuracies or were unfairly prejudicial
to
the
petitioner.
Rather,
Connolly
asserts
that
the
constitutional error was in denying him the opportunity to crossexamine the lab technician who prepared the drug certificates.
In
fact, Connolly's brief to the SJC did not argue that the MelendezDiaz error prejudiced him as to the strength of the evidence of the
10
Although this court has not expressly considered this
question, the case in which we came closest to the issue is
consistent with this approach. See Delaney v. Bartee, 522 F.3d
100, 105 (1st Cir. 2008) (applying Fry to claim of constitutional
error by considering but bypassing question of whether decision was
an unreasonable application of federal law and moving directly to
question of whether error had substantial and injurious effect on
jury's verdict).
11
The SJC did not explicitly cite Chapman but instead relied
on an identical state law doctrine rooted in the federal case. See
Petrillo v. O'Neill, 428 F.3d 41, 45 (1st Cir. 2005) (explaining
that Massachusetts standard of harmless error is based on Chapman);
Connolly, 913 N.E.2d at 374-76 (applying Massachusetts standard).
We treat that approach as an application of federal law.
See
Petrillo, 428 F.3d at 45.
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weight of cocaine.
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Instead, he focused on the instruction given
with the admission of the certificates explaining that, under a
state statute, an analyst was not needed to appear in person.
This, he argued, prejudiced his ability to argue that the absence
of the analyst was a weakness in the prosecution's case.
He did
not argue to the SJC, nor does he now argue to us, that had he been
able
to
confront
the
chemist,
the
outcome
would
have
been
different.
Nonetheless, the SJC did consider whether the admission
of the drug certificates themselves, not just the improper jury
instruction, prejudiced Connolly's case.
The SJC explained its
reasoning as follows:
[W]e conclude that the [Melendez-Diaz] error
was harmless beyond a reasonable doubt.
We
consider first the sales the defendant made to
the undercover agent and then the substance
that was found in his minivan. An undercover
officer testified that she bought from the
defendant, in two controlled purchases shortly
before his arrest, a substance that the
defendant called crack cocaine.
Detective
Lieutenant John Allen, an officer with
twenty-five years of experience in narcotics
investigations, testified that he field tested
the substances at the time of each purchase
and each tested positive for cocaine. He was,
of course, available for cross-examination.
Moreover, the quantity sold was not essential
for distribution purposes. See Commonwealth
v. Terrelonge, 42 Mass. App. Ct. 941, 941–942,
678 N.E.2d 1203 (1997).
With respect to the cocaine found in
the search of the defendant's minivan,
Sergeant John Milos, a police officer with
approximately seventeen years of experience in
narcotics investigations who had investigated
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"high hundreds" of cocaine distribution cases,
was one of the officers who found the cocaine
in that vehicle. He testified that he field
tested chunks of the white substance recovered
from the vehicle immediately after it was
seized, before the substance was sent to the
State
police
laboratory,
and
that
the
substance tested positive for cocaine.
He
identified the ball of cocaine at trial as the
one that was recovered from the minivan.
Trooper James Bazzinotti, who had thirteen
years of experience conducting drug searches
with a narcotics detection canine, also
testified that the substance appeared to him
to be cocaine. Both of these witnesses were
available for cross-examination.
The weight of the 124.31 grams found in
the minivan was significant because the
defendant was convicted of trafficking in
cocaine between one hundred and 200 grams.
Sergeant Milos testified that one-eighth ounce
of cocaine was the equivalent of 3.5 grams and
that one-quarter ounce was double that, or
seven grams.
From that evidence, the jury
could
extrapolate
that
one
ounce
was
twenty-eight grams and that one hundred grams
was therefore less than four ounces. See
Commonwealth v. Thomas, 439 Mass. 362, 365,
787 N.E.2d 1047 (2003) (jury expected to apply
their common sense and experience). Trooper
Bazzinotti testified that, when he found the
cocaine in the minivan, it was wrapped in
electrical tape. He examined it and it looked
"like a baked potato"; it was "bigger than a
baseball." The trooper described the cocaine
after the electrical tape was unwound as a
"large ball, hard," and "a very solid piece of
. . . block cocaine."
The unwrapped cocaine was introduced in
evidence and taken to the jury room where the
jurors could see the amount for themselves,
although after the chemical analysis the
cocaine was "more flaked, more crushed up ...
the original package was more solid."
The
jury could determine that a large, hard ball
weighed more than four ounces. We permit lay
witnesses to testify to opinions such as size,
weight and distance, all of which require
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judgment.
See Commonwealth v. Moore, 323
Mass. 70, 76–77, 80 N.E.2d 24 (1948), citing
Commonwealth v. Sturtivant, 117 Mass. 122, 123
(1875) ("Every person is competent to express
an opinion on a question of . . . weight of
objects . . .").
Jurors can make the same
judgments based on adequate evidence. Because
evidence other than the certificates of
analysis established that the substances were
cocaine, and that the weight of the cocaine in
the minivan was over one hundred grams, the
error in admitting the certificates was
harmless beyond a reasonable doubt.
Connolly, 913 N.E.2d at 375-76.
Given this claim of error and this analysis as to both
drug type and weight, we cannot say that the SJC's conclusion was
an
unreasonable
application
of
Chapman.
"[A]n
'unreasonable
application of' [Chapman] must be 'objectively unreasonable,' not
merely wrong; even 'clear error' will not suffice.'"
White v.
Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade,
538 U.S. 63, 75-76 (2003)).
The harmless error inquiry depends
significantly on the facts and is guided largely by the strength of
the parties' cases.
See, e.g., United States v. Cabrera-Rivera,
583 F.3d 26, 36 (1st Cir. 2009); United States v. Carpenter, 403
F.3d 9, 12 (1st Cir. 2005).
Here, the government's case was supported by strong
evidence apart from the lab certificates.
The testimony of highly
experienced police officers described the drugs in plain terms that
a jury could easily understand -- a "large ball, hard," that was
"bigger than a baseball" and roughly similar in appearance to a
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"baked potato."
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Even without the officers' descriptions, the
jurors were told the conversion between grams and ounces; jurors
know how much four ounces is and were free to accept that 100
grams, the statutory amount, was less than four ounces.
could judge for themselves.
They then
The jury also saw the hard ball of
crack cocaine, though it was more flaked and less solid than it had
been when originally found, in the jury room.
To be sure, the lab
certificates were the most direct way of determining the weight of
the drugs, but the jury had obvious alternative methods available
for determining the drug weight.12
Melendez-Diaz itself left open
the possibility that, when other means of proof aside from the
improper certificate exist, the admission of the certificate may be
harmless error.
We
557 U.S. at 329 n.14.
also
note
that
Connolly's
trial
counsel
never
requested that the chemist be produced to be cross-examined as to
the weight of the substance, suggesting he did not think such a
line of inquiry would be productive (or even that he thought it
12
These obvious other pathways distinguish this case from
those cases in which, on direct appeal, we have found non-harmless
Melendez-Diaz error. See United States v. Ramos-González, 664 F.3d
1, 6-7 (1st Cir. 2011) (holding Melendez-Diaz error non-harmless
where no other reliable evidence of drug identity existed because
no witnesses had testified as to "experience or intimate knowledge"
of drug investigations); Cabrera-Rivera, 583 F.3d at 36-37 (holding
Melendez-Diaz error non-harmless where only alternative evidence,
eye-witness testimony, was "less than compelling"); cf. United
States v. Turner, 709 F.3d 1187, 1195-96 (7th Cir. 2013) (holding
Melendez-Diaz error harmless where "there was considerable
evidence" to prove drug identity beyond the challenged testimony).
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might harm his client).13
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That point is reinforced by his failure
to make such an argument to the SJC.
Indeed, his trial strategy
was to challenge identity and the reliability of the police methods
used, not to contest the drug type or quantity.
These facts are
relevant to our assessment of whether there is Brecht or Esparza
error.
Cf. Neder v. United States, 527 U.S. 1, 16-17 (1999)
(holding that failure to instruct jury on one element of crime was
harmless beyond a reasonable doubt when overwhelming evidence for
that element existed and defendant had not challenged that evidence
or argued against that element at trial).
The Massachusetts courts have not been shy about finding
reversible error in cases involving Melendez-Diaz error where the
facts were different and jurors did not have such other means to
determine drug weight or identity. See, e.g., Commonwealth v.
Montoya, 984 N.E.2d 793, 800-01 (Mass. 2013) (finding non-harmless
error where no independent testimony about drug weight in relatable
terms was given and evidence of jury confusion about drug weights
existed); Commonwealth v. Rivera, 918 N.E.2d 871, 874 (Mass. App.
Ct. 2009) (finding non-harmless error where, in "borderline" case,
jury would be required to apply metric system without testimony
about metric unit conversions); Commonwealth v. Rodriguez, 913
13
In fact, under Massachusetts law at the time, a defendant
could subpoena a lab analyst to compel -- not just request -- live
testimony. See Melendez-Diaz, 557 U.S. at 326. Connolly chose not
to do so.
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N.E.2d 880, 887 (Mass. App. Ct. 2009) (finding non-harmless error
where jury's only method of determining weight without relying on
certificates
would
be
"guesswork"
on
a
"close
question").
Particularly in light of these distinguishable cases, the facts of
this case show that the SJC's determination that the error was
harmless was not unreasonable, regardless of whether we might have
found the error harmless on direct review.
Cf. White, 134 S. Ct.
at 1702 ("[A] state prisoner must show that the state court's
ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement." (quoting Harrington v. Richter, 131 S. Ct. 770, 78687 (2011)) (internal quotation mark omitted)).
Under Fry, we may stop here, as petitioner is not
entitled to habeas relief under the Esparza standard. Nonetheless,
we
briefly
explain
why,
even
if
the
SJC's
application
of
a
Chapman harmless error test was unreasonable, petitioner still
would not be entitled to habeas relief because he cannot show error
under the Brecht standard.
We return to the nature of the claimed
prejudice from the error.
As noted, Connolly has not challenged the accuracy of the
lab certificates.
Rather, his claim is limited to the deprivation
of his opportunity to cross-examine the lab analyst, and the
erroneous jury instruction on that topic.
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challenge to the actual contents of the certificates, however,
Connolly cannot show substantial and injurious effects on the
jury's verdict.
See Dominguez v. Duval, 527 F. App'x 38, 41 (1st
Cir. 2013) ("The argument for prejudice . . . addresses not the
contents
of
the
report
pathologist . . . .
but
the
absence
of
the
examining
But not only is the substance of the
pathologist's hypothetical testimony a matter of pure speculation,
the possibility that any such testimony would have swayed the jury
toward
accepting
unrealistic.").
[petitioner's]
account
is
downright
Connolly does not claim that, had he been able to
cross-examine the lab technician, the jury would have been more
likely to conclude that the ball of cocaine weighed under 100
grams.14
Without any such claim, he cannot show on habeas review
that the admission of the drug certificates had a "substantial and
injurious" effect on the jury's decision. And even if he made that
claim, he has not put forward any evidence indicating what would
have been revealed on cross-examination, leaving the support for
his
claim
a
matter
of
"pure
speculation."
14
Id.
That
is
In fact, the jury was explicitly instructed that the lab
certificates were "evidence for you to consider" only "if you deem
it credible."
We presume that, absent some indication to the
contrary, the jury followed the court's instructions. See Fryer v.
A.S.A.P. Fire & Safety Corp., 658 F.3d 85, 93 (1st Cir. 2011).
Thus, if the jury did in fact consider the certificates here, it
did so only after determining that they were credible. Connolly
does not argue in any way that a cross-examination of the lab
technician would have undermined the credibility of the
certificates.
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insufficient to show a "substantial and injurious" effect on the
verdict.
III.
We affirm.
- Concurring Opinion Follows -
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THOMPSON, Circuit Judge, concurring.
Entry ID: 5825238
This case aptly
illustrates the limited nature of our habeas review even in the
face of an admitted constitutional error.
The myriad obstacles to
habeas review, especially the barricades thrown up and reinforced
by
Supreme
Court
conviction.
precedent,
compel
us
to
affirm
Connolly's
Although I fully concur in the Court's judgment, I
write separately to flesh out why we are powerless to intervene.
Put simply, the Supreme Court has recently reiterated
that although some federal judges find the scope of habeas review
to be too limited, our authority to grant the writ is circumscribed
by 28 U.S.C. § 2254, a statute we are bound to obey.
White v.
Woodall, 134 S. Ct. 1697, 1701-02 (2014). We may only grant habeas
relief
where
there
has
been
a
misapplication
of
"clearly
established Federal law" of sufficient severity. Thaler v. Haynes,
559 U.S. 43, 47 (2010) (per curiam) (internal quotation marks
omitted).
Significantly, the relevant federal law must have been
clearly established as of the time of the state court decision,
meaning that subsequent developments are not relevant to habeas
review.
Williams
v.
Taylor,
529
U.S.
362,
412
(2000).
Furthermore, for us to find a state court unreasonably applied
clearly
established
federal
law,
its
application
"must
be
'objectively unreasonable,' not merely wrong; even 'clear error'
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White, 134 S. Ct. at 1702, (quoting Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003)).15
Everyone
Connolly's
trial,
agrees
a
which--as
Melendez-Diaz
the
majority
error
opinion
occurred
at
discusses--
requires us to engage in a harmless error analysis.
The SJC
determined in Connolly's direct appeal that the jury could find
beyond a reasonable doubt that the drugs weighed over 100 grams
because
the
deliberated.
harmless.
jury
had
the
actual
drugs
with
them
as
they
Thus, the SJC concluded the Melendez-Diaz error was
See Commonwealth v. Connolly, 913 N.E.2d 356, 375-76
(Mass. 2009).
This limits the scope of our habeas review to determining
whether or not the SJC's finding of harmless error constituted an
unreasonable application of clearly established federal law.
In
other words, Connolly needs to demonstrate that it has been clearly
established as a matter of federal law that a lay jury may not make
a finding of drug weight based on the opportunity to observe and
handle those drugs.
This is where our review rushes headlong into
the habeas wall.
Timing is everything, and unfortunately time was not on
Connolly's side. The Massachusetts appellate courts appear to have
backed away from the SJC's holding in Connolly.
15
Subsequent cases
These are but a few of the impediments to habeas relief.
There is no need to delve into any of the others here.
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have distinguished it and concluded a Melendez-Diaz error with
respect to drug certificates was not harmless beyond a reasonable
doubt.
Appeals
Just over a week after the SJC handed down Connolly, the
Court
found
that
the
erroneous
admission
of
drug
certificates was not harmless where the alleged amount of drugs
exceeded the statutory threshold of 100 grams by 42.5 games, and
were spread across eight bags, one of which contained 106.5 grams
of drugs.
See Commonwealth v. Rodriguez, 913 N.E.2d 880, 887
(Mass. App. Ct. 2009).
The Appeals Court distinguished Connolly
and
the
reasoned
that
in
absence
of
the
drug
certificates,
"determining the weights of the amounts at issue, particularly
whether they were over or under 100 grams, would involve too much
guesswork on too close a question in these circumstances."
(citing Connolly, 913 N.E.2d at 376).16
Id.
The Appeals Court has gone
on to find non-harmless error in several opinions issued subsequent
to Connolly and Rodriguez.
See Commonwealth v. Rivera, 913 N.E.2d
871, 874-75 (Mass. App. Ct. 2009) (admission of certificates not
harmless error where multiple bags of heroin and cocaine were all
within 100 grams of the statutory thresholds); Commonwealth v.
DePina, 917 N.E.2d 781, 789-90 (Mass. App. Ct. 2009) (finding nonharmless error where alleged amount of drugs exceeded statutory
16
In citing to Connolly, the Appeals Court specifically noted
that case involved a "large, hard ball" of cocaine. Id. These
terms, however, are simply not probative of weight--think the
identically-sized aluminum versus steel ball.
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threshold of 14 grams by 0.24 grams and was contained in 8 separate
bags).
The SJC itself distinguished Connolly in Commonwealth v.
Montoya, 984 N.E.2d 793 (Mass. 2013).
Montoya contrasted the
evidence in Connolly, "a ball of solid cocaine that looked like a
baked potato [and] was bigger than a baseball," with the drugs in
that
case,
39.74
grams
(which
exceeded
the
threshold
by
approximately 11.8 grams) "packaged in twenty individual bags."
Id. at 800-01 (internal quotation marks omitted).
The SJC went on
to find "[t]hat jurors had the opportunity to handle this evidence
in the jury room, without instruments or any objects of known
weight for comparison, does not render the admission of the drug
certificates harmless beyond a reasonable doubt," and cited the
Appeal's Courts decisions in Rodriguez, Rivera, and DePina with
approval.
Id. at 801.
Thus, in Montoya it appears that the SJC considered the
fact that the drugs involved in that case were spread across
multiple packages to be the key distinguishing feature between its
decision there and its holding in Connolly.
It is at least
debatable whether or not the SJC would come to the same result if
presented with Connolly's appeal today in light, especially in
light of its approval of Rodriguez, where one of the bags of drugs
weighed more than 100 grams.
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Nevertheless, the subsequent development and potential
uncertainty with respect to a matter of state law are simply
irrelevant to our habeas review in this instance. Connolly has not
directed this Court's attention to any Supreme Court precedent
clearly establishing that a lay jury may not--consistent with the
federal constitution--make the drug weight determination on its
own.
My own research has failed to locate any Supreme Court
precedents in this area either.17 As the Supreme Court has reminded
us, the absence of Supreme Court holdings inevitably means that
there is no "clearly established federal law."
habeas petition is doomed.
Thus, Connolly's
Under the strict habeas standard, it
matters not whether the SJC might come to a different conclusion
today or whether we would have arrived at a different result had
this
case
reached
us
on
direct
appeal.
In
light
of
these
restrictions, we have no choice but to dismiss Connolly's habeas
petition.
17
We found admission of a drug certificate in violation of
Melendez-Diaz was not harmless error in United States v. RamosGonalez, 664 F.3d 1, 7 (1st Cir. 2011), a case which came to us on
direct review. Our decision there provides no comfort to Connolly,
however, as we must confine our inquiry to the Supreme Court's
holdings. See White, 134 S. Ct. at 1702 n.2.
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