Barbosa v. Mitchell

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [14-1926]

Case: 14-1926

Document: 00116951504

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Date Filed: 01/28/2016

Entry ID: 5973010

United States Court of Appeals
For the First Circuit
No. 14-1926
HELDER BARBOSA,
Petitioner, Appellant,
v.
LISA A. MITCHELL, SUPERINTENDENT,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]

Before
Lynch, Selya, and Kayatta,
Circuit Judges.

Elizabeth Doherty for appellant.
Christopher Hurld, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.

January 28, 2016

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KAYATTA, Circuit Judge.

Date Filed: 01/28/2016

Entry ID: 5973010

Helder Barbosa was convicted of

first degree murder, armed assault with intent to murder, assault
and battery with a dangerous weapon, and the unlicensed possession
of a firearm.

Commonwealth v. Barbosa, 933 N.E.2d 93, 99 & n.1

(Mass.

("Barbosa").

2010)

The

Supreme

Judicial

Court

of

Massachusetts ("SJC") affirmed his convictions, id. at 99, and the
United States District Court for the District of Massachusetts
subsequently denied Barbosa's petition for a writ of habeas corpus,
Barbosa v. Gelb, No. 12-10764, 2014 WL 3897652, at *1 (D. Mass.
Aug. 6, 2014) ("Gelb").

Claiming that evidence provided by an

expert witness who relied on and tendered work done by a nontestifying

witness

violated

his

clearly

established

right

to

confrontation under the Sixth Amendment to the United States
Constitution, Barbosa appealed.

For the reasons explained below,

we affirm.
I.

Background

The law requires us to accept the state court's findings
of fact because Barbosa makes no showing that any of those facts
are clearly and convincingly in error.
F.3d

24,

26

(1st

Cir.

2002)

(en

McCambridge v. Hall, 303
banc)

(citing

28

U.S.C.

§ 2254(e)(1)). We therefore begin with a summary of those findings
as set forth by the SJC in its opinion.
At approximately 7:00 PM on October 6, 2004, Geraldo
Carbuccia and Edward Serret encountered Barbosa as they were

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walking in the Roxbury section of Boston.
99.

Entry ID: 5973010

Barbosa, 933 N.E.2d at

Carbuccia had seen Barbosa only twice before, whereas Serret

and Barbosa were better acquainted.

Id.

The three men walked to

Robey Street, where Barbosa left Carbuccia and Serret to wait for
him in an alleyway.

Id.

Returning five to ten minutes later,

Barbosa pulled out a gun and shot Carbuccia in the shoulder from
ten to fifteen feet away.

Id.

After falling to the ground,

Carbuccia heard three or four more gunshots and then heard Serret
say, "Dammit, you're going to kill me."

Id. at 99–100.

Luis Sanches, an eyewitness, testified that he heard
three or four shots on Robey Street and then saw Barbosa and Serret
running from Robey Street onto Marshfield Street while punching
each other.

Id. at 100.

After another gunshot, Serret fell to

the ground while Barbosa continued to punch him before Barbosa ran
away and turned the corner onto Norfolk Avenue.
Between

8:00

and

8:30

PM,

Police

Id.
Officers

William

Hubbard and Charles MacKinnon received a radio call to respond to
the scene at Marshfield Street.

Id.

Approximately one minute

after receiving the call, they saw Barbosa walking toward them on
Burrell Street, which is approximately one block from Marshfield.
Id.

The officers observed that Barbosa was walking at a "brisk

pace," and that he "appeared to be short of breath, and [that] his
face was glistening with sweat."

Id.

When Hubbard rolled down

the car window to ask Barbosa whether he had heard gunshots,

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Barbosa pointed to the intersection of Burrell and Bachelder
Streets, making excited gestures and stating, "Over there, I heard
shots, they are crazy, I had to run."

Id.

When Hubbard opened

his door to exit his vehicle, Barbosa immediately began to run
away.

Id.

Hubbard followed him on foot and ordered Barbosa to

stop, but Barbosa did not comply.

Id.

Hubbard tackled Barbosa to the ground.

After a brief chase,

Id.

When Hubbard ordered

Barbosa to show his hands, Barbosa refused, crawling toward the
sidewalk.

Id.

During the ensuing struggle, Hubbard "heard a loud

splash" and saw Barbosa's hand emerge from a catch basin.

Id.

Barbosa then ceased struggling and showed Hubbard his hands, which
were empty.

Id.

police car.

Id.

A

short

Hubbard handcuffed Barbosa and placed him in a

while

later,

the

Boston

Water

and

Sewer

Commission brought a "clam truck" at Hubbard's request to scoop
out the contents of the catch basin.

Id.

The first scoop produced

a nine millimeter Bryco semi-automatic pistol.

Id. at 100–01.

At

trial, a ballistics expert testified that this pistol matched the
shell casings and bullet fragments found at the scene of the
shooting.

Id. at 103.
During an interview with Detective Dennis Harris and

Sergeant Detective Thomas O'Leary at the police station, Barbosa
claimed he fled from Officer Hubbard because he thought there was
an outstanding warrant for his arrest based on a motor vehicle

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infraction.

Id. at 101.

Id. at 101 n.2.

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A record check revealed no such warrant.

Barbosa also denied any involvement in the

shooting and denied throwing anything into the catch basin.
at 101.

Id.

After Detective Harris informed Barbosa that a firearm

had been found in the basin, Barbosa's demeanor changed and he
"dropped his head to his knees."

Id.

During interviews on October 11 and October 16, 2004,
Carbuccia initially stated that he did not "get a good look" at
the shooter. Id. On October 18, 2004, Carbuccia changed his tune.
He contacted Sergeant Detective Richard Daley and gave a taperecorded statement that Barbosa had shot him, and he also selected
Barbosa's photograph from an array of eight photographs.

Id.

Two

years later, in preparation for trial, Carbuccia then further
informed the district attorney that he and Serret had witnessed
Barbosa shoot another man on September 21, 2004, two weeks before
Barbosa shot Carbuccia and Serret.
Shortly

after

the

Id.

shooting,

Cheryl

Delatore--a

DNA

analyst no longer employed by Boston police department at the time
of trial--performed DNA testing on four samples taken from:

(1) a

red stain on Barbosa's left boot; (2) a red stain on Barbosa's
left pant leg; (3) a bloodstain from Serret; and (4) an oral swab
from Barbosa.

Id. at 103–04.

At trial, Julie Lynch, a senior

criminalist in the DNA unit of the Boston police department,
explained the process of DNA testing and analysis, id. at 102–04,

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and testified that, in her opinion, the results of Delatore's tests
indicated that Serret was a "possible source of the DNA extracted
from" the bloodstains on Barbosa's boot and pant leg, "while
[Barbosa] was excluded as a possible source of the DNA from both,"
id. at 102.

Without any objection from Barbosa, a table prepared

by Delatore was introduced into evidence showing the results of
the DNA tests and Lynch orally conveyed some of the table's
information to the jury.

Id. at 104.

Lynch admitted on cross-examination that she had not
done the tests herself.

Id.

Rather, she had supervised and

trained Delatore, reviewed the worksheets and reports Delatore had
generated during the testing, and signed Delatore's final report.
Id.

She agreed that because she did not stand "over [Delatore's]

shoulders" during the testing, she had "no idea" whether Delatore
made any mistakes.

Id. (alteration in original).

The only way to

be certain would be to retest all of the samples, which she had
not done.

Id.
A Suffolk County jury convicted Barbosa of first-degree

murder with premeditation and extreme atrocity or cruelty, armed
assault with intent to murder, assault and battery with a dangerous
weapon, and the unlicensed possession of a firearm.
n.1.

Id. at 99 &

In his appeal to the SJC, Barbosa argued, inter alia, that

both Lynch's testimony about the results of DNA testing she did
not perform and the introduction into evidence of the table created

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by Delatore violated his Sixth Amendment right of confrontation.
Id. at 99, 104.
The SJC affirmed Barbosa's convictions, holding that
even though Lynch's own opinion was based in part on DNA testing
she did not perform, Barbosa's right of confrontation was not
violated because "he had a fair opportunity to confront Lynch as
to the reasonable basis for [her] opinion[s]."

Id. at 107.

The

SJC also held, however, and the State conceded, that Barbosa's
confrontation rights were violated by the admission of Delatore's
results

table

and

Lynch's

information in the table.

testimony

Id.

reciting

some

of

the

Nevertheless, because Barbosa "did

not object to the admission of this testimony or otherwise preserve
his

claim

of

error,"

the

SJC

reviewed

the

error

under

the

"miscarriage of justice" standard and concluded that in light of
Lynch's properly admitted testimony and the "other overwhelming
[non-DNA] evidence against the defendant . . . no substantial
likelihood of a miscarriage of justice resulted from the improper
admission

of

Delatore's

results

table,

or

regarding Delatore's results and opinion."

Lynch's

testimony

Id. at 111.

Supreme Court denied Barbosa's petition for certiorari.

The

Barbosa

v. Mitchell, 131 S. Ct. 2441 (2011).
On April 27, 2012, Barbosa filed his petition for a writ
of habeas corpus with the United States District Court for the
District

of

Massachusetts

based

on

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the

admission

of

Lynch's

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testimony and Delatore's results table.
on

the

Supreme

Court's

Entry ID: 5973010

Barbosa's petition relies

decisions

in

Melendez-Diaz

v.

Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico,
131 S. Ct. 2705 (2011).
holding that:
violate

The district court denied the petition,

admission of Lynch's own expert opinion did not

clearly

established

law

even

though

she

relied

on

Delatore's work product in forming her opinion; and (2) the
submission of Delatore's results table and Lynch's recitation of
portions of the table, although a violation of Barbosa's right of
confrontation, did not have a "substantial and injurious effect"
on the jury's verdict because it was "cumulative" of Lynch's
properly-admitted

testimony

and

"overwhelming evidence of guilt."
5.

because

there

was

other

Gelb, 2014 WL 3897652, at *3–

The district court granted a certificate of appealability and

Barbosa now appeals to this court.
II.
A.

Discussion

Standard of Review
This

court

reviews

a

district

court's

petition for writ of habeas corpus de novo.
Ashcroft, 329 F.3d 191, 202 (1st Cir. 2003).

denial

of

a

Saint Fort v.
A writ of habeas

corpus is available to a "person in custody pursuant to the
judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United
States."

28 U.S.C. § 2254(a).

The availability of such relief is

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subject

to

several

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additional

Date Filed: 01/28/2016

requirements,

Entry ID: 5973010

including

the

requirement that the writ may not issue "with respect to any claim
that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim 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).

This is a difficult

standard to meet, Greene v. Fisher, 132 S. Ct. 38, 43 (2011), and
"only Supreme Court precedent in effect at the time of the state
court adjudication on the merits counts as 'clearly established
Federal law,'"

Nardi v. Pepe, 662 F.3d 107, 110 (1st Cir. 2011)

(quoting Greene, 132 S. Ct. at 43).
the

relevant

date

for

For purposes of this appeal,

determining

applicable

Supreme

Court

precedent is September 7, 2010, when the SJC affirmed Barbosa's
convictions.
B.

Gelb, 2014 WL 3897652, at *3.

Confrontation Clause
The Sixth Amendment to the United States Constitution,

made

applicable

to

the

states

via

the

Fourteenth

Amendment,

provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him."

U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403

(1965). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court held that the Confrontation Clause guarantees a defendant's
right to confront those who "bear testimony" against him.

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The SJC held, and neither party disputes, that the evidence

at issue in this case, including Delatore's results table, was
"testimonial."
1.

Barbosa, 933 N.E.2d at 104, 107.

Admission of Lynch's Expert Opinion Testimony
We consider first Barbosa's argument that allowing Lynch

to offer her own opinion based on the results of Delatore's
testimony violated clearly established Sixth Amendment law.

To

build

v.

this

argument,

Barbosa

points

to

Melendez-Diaz

Massachusetts, 557 U.S. 305 (2009), as the Supreme Court decision
that he says clearly established by 2010 that Lynch should not
have been allowed to offer an opinion that relied on the work of
another person who did not testify.
Melendez-Diaz did not involve a challenge to a witness's
testimony.

Rather, the challenged evidence submitted by the

prosecution in that case consisted solely of three "certificates
of analysis" showing the results of a forensic analysis performed
on seized substances in a drug trafficking case.

Id. at 308.

The

analysts who performed the tests did not testify, and the court
admitted

the

certificates

into

evidence

over

the

defendant's

objection, taking them as "prima facie evidence of the composition,
quality, and the net weight of the narcotic . . . analyzed."

Id.

at 309 (alteration in original) (quoting Mass. Gen. Laws ch. 111,
§ 13 (2008) (repealed 2012)).

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Barbosa nevertheless argues that he need not show that
the facts of Melendez-Diaz are on all fours with the facts here.
He need only show that Melendez-Diaz clearly established law that,
without extension, applied here "beyond doubt."
Alvarado, 541 U.S. 652, 666 (2004).

Yarborough v.

The problem for Barbosa,

though, is that it was hardly beyond doubt that Melendez-Diaz's
ruling concerning testimonial pieces of paper applied without
extension to live testimony by an expert witness who has some
connection to the scientific report prepared by another whom she
supervised, or who is asked to offer her own opinion about reports
that themselves cannot be put into evidence.

To the contrary,

four U.S. Supreme Court Justices later read Melendez-Diaz as not
establishing at all, much less beyond doubt, the proposition that
admitting an opinion such as that offered by Lynch violates the
right to confrontation. See Williams v. Illinois, 132 S. Ct. 2221,
2228 (2012) (plurality opinion). Indeed, by blessing the admission
of almost identical testimony by a DNA expert, the Court's actual
holding in Williams might well be read as telling us that Barbosa
is not, with respect to this issue, being held "in custody in
violation of the Constitution," 28 U.S.C. § 2254(a), much less
that the fact of a violation was clearly established in 2010.
In light of the foregoing, we conclude that the admission
of Lynch's own expert opinion does not provide a basis for habeas
corpus relief.

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2.

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Admission of Delatore's Results Table and Lynch's Recitation
of Delatore's Findings
We turn, last, to Barbosa's challenge to the admission

of Delatore's results table and Lynch's recitation of Delatore's
findings.

Because Barbosa did not object in the trial court "to

the admission of this testimony or otherwise preserve his claim of
error," the SJC reviewed the claimed error under Massachusetts'
"miscarriage of justice standard."

Barbosa, 933 N.E.2d at 111.

Usually, such a finding of procedural default would constitute an
independent and adequate state law ground for a state court's
decision, thereby foreclosing habeas relief unless the petitioner
can "demonstrate cause for the default and prejudice stemming
therefrom, or, alternatively, unless the petitioner can show that
a refusal to consider the merits of the constitutional claim will
work a miscarriage of justice."

Burks v. Dubois, 55 F.3d 712, 716

(1st Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)).
The State, though, advances no argument that Barbosa's
failure to make a contemporaneous objection to the admission of
the results table "constituted an independent state law ground for
the SJC's refusal to grant relief."

Tart v. Commonwealth of

Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991).

Rather, the

State actually suggests that the SJC ruled on the merits of
Barbosa's claim.

We will therefore accept the State's invitation

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to ignore Barbosa's own default, and consider the merits of his
belated challenge to the admission of Delatore's results table and
Lynch's recitation of Delatore's findings.1
On the merits, the State also does not dispute that
admitting Delatore's results table and allowing Lynch to recite
for the truth of the matter information from the table violated
clearly established law under the Confrontation Clause.

The State

argues, instead, that the admission of the results table and of
Lynch's recitation of information from the table for its truth was
harmless because the evidence was "cumulative" and "because the
properly admitted evidence against [Barbosa] was overwhelming."
When there is a preserved constitutional error in a
conviction challenged on habeas review, we are required to apply
the harmless error test adopted in Brecht v. Abrahamson, 507 U.S.
619 (1993).

Brecht held that a petitioner is entitled to habeas

relief if the constitutional error had a "substantial and injurious

1

The Supreme Court has held that a court of appeals, when
reviewing a district court's habeas decision, is not required to
raise, sua sponte, the issue of a petitioner's procedural default
when "[t]he parties themselves ha[ve] neither raised nor argued
the matter." Trest v. Cain, 522 U.S. 87, 89 (1997). This court
has specifically held that even when the government has not argued
procedural default, we have authority, but not the obligation, to
raise the issue sua sponte. Ortiz v. Dubois, 19 F.3d 708, 714–15
(1st Cir. 1994); see also Trest, 522 U.S. at 90 (declining to
decide "whether, or just when, a habeas court may consider a
procedural default that the State at some point has waived, or
failed to raise"). We decline to exercise this authority in this
case.
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effect or influence in determining the jury's verdict."

Id. at

637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946));
see also Wright v. Marshall, 656 F.3d 102, 108 (1st Cir. 2011).
We find no such effect or influence on the verdict in this case.
The results table and the testimony about Delatore's
conclusions indicated on that table were probative, and thus
potentially harmful, because they pointed to the victim rather
than Barbosa as the source of the blood on Barbosa's pant leg and
boot.

That same incriminating linkage, though, was provided

directly by Lynch's own opinion in relying on Delatore's work, and
we have now found the admission of that opinion not to have been
contrary

to

clearly

established

federal

law.

See

supra

Part II.B.1.
The evidence before the jury also included an abundance
of

other

evidence

indicating

Barbosa's

guilt,

including

Carbuccia's identification of Barbosa as the shooter; Sanches's
testimony corroborating Carbuccia's identification; Carbuccia's
testimony that he and Serret had witnessed Barbosa murder another
man

approximately

two

weeks

before

the

shooting;

and

police

testimony regarding Barbosa's behavior when encountered shortly
after the shooting, including his flight from the police and-likely most damning--the fact that he dropped an object in the
catch basin from which the gun used in the shooting was later
retrieved.

Barbosa, 933 N.E.2d at 99–103.

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this evidence as a whole, we cannot conclude that the largely
cumulative

evidence

pertaining

to

the

results

substantial and injurious effect on the verdict.

table

had

a

See Brecht, 507

U.S. at 639.
III.

Conclusion

For the reasons set forth above, the order of the
district court is affirmed.

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