145 F.3d 16 (1st Cir. 1998), 97-1979, O'Brien v. Dubois

Docket Nº:97-1979.
Citation:145 F.3d 16
Party Name:Robert O'BRIEN, Petitioner, Appellant, v. Larry E. DUBOIS, Respondent, Appellee.
Case Date:May 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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145 F.3d 16 (1st Cir. 1998)

Robert O'BRIEN, Petitioner, Appellant,


Larry E. DUBOIS, Respondent, Appellee.

No. 97-1979.

United States Court of Appeals, First Circuit

May 26, 1998

Heard April 7, 1998.

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[Copyrighted Material Omitted]

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Robert L. Sheketoff, with whom Sheketoff & Homan was on brief, for appellant.

William J. Meade, Assistant Attorney General, Commonwealth of Massachusetts, with whom Scott Harshbarger, Attorney General, was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

In this pathbreaking case, petitioner-appellant Robert O'Brien, who assails his Massachusetts manslaughter conviction on the ground that the trial court unconstitutionally restricted recross-examination, prays for a writ of habeas corpus. Evaluating the petitioner's claim requires us to appraise and interpret the standard of review provision incorporated into 28 U.S.C. § 2254(d)(1) by the Antiterrorism and Effective Death Penalty Act of 1996. 1 After developing and applying an appropriate analytic framework, we uphold the district court's denial of habeas relief.


Our factual recitation focuses primarily on the trial testimony and rulings that lie at the epicenter of this habeas proceeding. We direct readers who yearn for a more complete narrative to the opinion of the Massachusetts Supreme Judicial Court (SJC) affirming the underlying conviction. See Commonwealth v. O'Brien, 419 Mass. 470, 645 N.E.2d 1170, 1171-74 (1995).

On March 29, 1989, a state jury convicted the petitioner of the involuntary manslaughter of Sean Patrick Shanahan, a five-month-old infant. The criminal case arose after Sean's mother, Carol Shanahan, found the child dead in his crib and an autopsy indicated that Sean perished as a result of blunt head trauma.

In the relevant time frame, the petitioner lived with Shanahan and her three children (Sean included). Sean's parentage was an ongoing source of friction in what charitably can be called a stormy relationship. 2 The record evinces that the petitioner singled out Sean for frequent scoldings and occasional physical abuse.

On the morning of October 2, 1987, Shanahan left the couple's apartment to report for work. She returned home at about 4:00 p.m., accompanied by her eight-year-old sister, Darlene. Shanahan testified that Sean awoke while she was preparing the evening meal, and that he appeared normal except for a runny nose. After dinner, the petitioner ordered Shanahan to purchase some marijuana for him. Shanahan absented herself from the apartment for approximately fifteen minutes to perform this errand. The petitioner remained on the premises with Shanahan's sister and three children.

What happened next is hotly disputed. The prosecution relied on Darlene as its star witness at trial, and we summarize her account of the pertinent events: During Shanahan's absence, Sean awoke and began crying. The petitioner picked him up and headed for the kitchen. Sean vomited. The petitioner became angry, hurled Sean into the air, and unsuccessfully tried to catch him. Sean struck the floor headfirst. The petitioner

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then restored the crying child to his crib and advised Darlene not to discuss what had happened lest he "get someone after [her]." When Shanahan returned, no one mentioned the incident.

There is little disagreement as to subsequent events. Later that evening, Shanahan noticed that Sean's face was puffy, his eyes runny, and his breathing strained. These symptoms persisted the next morning, prompting Shanahan to leave Sean in his crib for the day. That night, Shanahan moved toward Sean's room to check his condition, but the petitioner headed her off and entered the room first. After a few seconds, he emerged, pointed toward the crib, and fled the apartment. Shanahan approached the crib and found the child dead.

The state police investigation immediately focused on the petitioner. At first, he denied any involvement with Sean's death, but, upon requestioning, he changed his tune. This time, the petitioner claimed that, on October 2, he had slipped while carrying Sean, and that Sean's head and neck had struck the floor during the ensuing fall. The investigating officer consulted with the pathologist who performed the autopsy and ascertained that Sean's injuries could not have occurred in this manner. Confronted with the pathologist's statement, the petitioner agreed to tell the investigator "what really happened." He then spun a new yarn: while playing with Sean on the morning of October 2, he had placed his hands under Sean's legs, held the child by the hands, and tried to flip him--but Sean slipped from his grasp and the child's head hit the floor.

At trial, the prosecution's theory of the case tracked Darlene's account of how Sean's injuries transpired. To refute this testimony and buttress his (most recent) version of the events surrounding Sean's death, the petitioner strove to show that Sean exhibited symptoms of a head injury prior to the time that Darlene claimed to have seen the petitioner heave the baby into the air. Given the nature of this defense, the presence of so-called cold symptoms before dinner on October 2--symptoms that the petitioner insists were in fact indicia of cranial trauma--took on vital importance.

In the course of a vigorous cross-examination, Shanahan testified that she did not see Sean from the time she left for work on October 2 until late in the afternoon, and that he had a runny nose but no other cold symptoms at that juncture. She first noticed that Sean was not feeling well later that evening. The petitioner's counsel called Shanahan's attention to a statement that she gave to the police on October 7, in which she reported that, upon arriving at the apartment with Darlene, she noticed that Sean displayed some other symptoms (like hoarseness and wheezy breathing). Shanahan replied that she could not remember making these specific comments.

The prosecution, in an attempt to account for any possible discrepancies between Shanahan's trial testimony and her pretrial statement, elicited on redirect examination that she had been extremely upset when she gave the October 7 statement because Sean's funeral had occurred the day before. On recross-examination, defense counsel sought to ask Shanahan about another statement that she penned some days after the funeral in preparation for a meeting with a prosecutor (and in which, according to the petitioner's attorney, Shanahan again recounted that she observed Sean suffering from cold symptoms as soon as she and Darlene returned home). The prosecution objected on the ground that the proposed questioning exceeded the scope of redirect examination. The petitioner's counsel countered that a reference to the second statement was proper because it impeached Shanahan's explanation for the inconsistency between her trial testimony and her October 7 account. The trial judge sustained the objection, finding that the contents of the second statement (which had not been admitted into evidence) did not address any matter raised for the first time on redirect examination.

The jury convicted the petitioner of involuntary manslaughter. After an intermediate appellate court rejected the petitioner's appeal, the SJC, in a four-to-three decision, held that the imposed limitation on recross-examination did not transgress the Confrontation Clause. See O'Brien, 645 N.E.2d at 1174.

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On July 15, 1996, the petitioner filed an application for habeas relief in the United States District Court for the District of Massachusetts. Judge Woodlock recognized that the new habeas review standards contained in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C.) (AEDPA), governed the resolution of the petitioner's case. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Rodriguez v. Superintendent, 139 F.3d 270, 271-72 (1st Cir.1998). Applying AEDPA's standard of review provision, 28 U.S.C. § 2254(d)(1) (Supp.1996), Judge Woodlock denied relief. He then issued a certificate of appealability, and we followed suit. See 28 U.S.C. § 2253(c)(1).


While the substance of the petitioner's claim awaits, we must interpret what is perhaps the most fundamental modification to habeas corpus jurisprudence wrought by AEDPA--the fashioning of a neoteric standard that a federal habeas court must use when assessing a state court's adjudication of a criminal defendant's assertions of constitutional error.

AEDPA instructs federal courts not to grant a writ of habeas corpus at the behest of a state prisoner unless the underlying state adjudication:

(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). AEDPA is hardly a model of clarity, see Lindh, 117 S.Ct. at 2068 (observing that "in a world of silk purses and pigs' ears, [AEDPA] is not a silk purse of the art of statutory drafting"), and its standard of review provision is far from self-explicating. The provision poses particular difficulties in determining the appropriate mode of analysis that a federal court should pursue under subsection (1)--difficulties that we encounter here.


Before turning to our central interpretive task, we deem it advisable to clear some of the statutory underbrush. Prior to AEDPA's passage, a federal...

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