293 F.3d 19 (1st Cir. 2002), 01-2390, Ouber v. Guarino

Docket Nº:01-2390
Citation:293 F.3d 19
Party Name:Ouber v. Guarino
Case Date:June 17, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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293 F.3d 19 (1st Cir. 2002)

Barbara OUBER, Petitioner, Appellee,


Barbara GUARINO, Respondent, Appellant.

No. 01-2390.

United States Court of Appeals, First Circuit

June 17, 2002

        Heard April 4, 2002.

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        Linda A. Wagner, Assistant Attorney General, Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, was on brief, for appellant.

        John Updegraph, with whom John Andrews, Robert M. Strasnick, and Andrews & Koufman, LLC, were on brief, for appellee.

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

        SELYA, Circuit Judge.

        After a Massachusetts jury convicted petitioner-appellee Barbara Ouber on a drug-trafficking charge, she exhausted her state-court remedies and then sought habeas corpus relief in the federal district court. That court granted the writ. The Commonwealth's ensuing appeal raises nuanced questions concerning the interplay between the proper resolution of claims asserting ineffective assistance of counsel and the deferential standard of review imposed upon federal habeas courts by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Although our reasoning differs significantly from the district court's as to the prejudice component of the ineffective assistance test, we agree that habeas relief is appropriate in the unique circumstances of this case.

         I. BACKGROUND

        To put matters into perspective, we recount the background facts, the case's procedural history, the genesis of the petitioner's conviction (including a precis of the evidence adduced at trial), and what transpired thereafter.

        The petitioner and her brother (Nick Tsoleridas) resided at 9 Beth Lane in Hyannis, Massachusetts. On January 25, 1992, Todd Shea, an undercover narcotics agent, accompanied by a confidential informant (CI), went to that address. Tsoleridas greeted them. He and the CI then went into the house. Shea was told to wait in the car.

        The CI emerged alone. He and Shea waited for Tsoleridas (a suspected drug dealer). After some time had elapsed, the two men grew impatient and approached the front door. The petitioner was standing just inside the entrance and Tsoleridas was descending from upstairs. Shea said something to the effect that he wanted to look at "the package" before turning over any money. Tsoleridas escorted his visitors outside, saying that he did not want to

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"deal" in the house. After the three men drove a short distance, Tsoleridas sold Shea an ounce of cocaine for $1,100. He also gave Shea his cell phone number and told him that he could supply much larger quantities.

        Tsoleridas delivered comparable amounts of cocaine to Shea on February 19 and March 2. At approximately 4:40 p.m. on March 8, Shea called Tsoleridas and indicated that he wished to purchase ten ounces of cocaine. Tsoleridas tried to persuade Shea to come to Boston to consummate the transaction. When Shea demurred, Tsoleridas offered to supply two ounces to tide him over, and told him to come to the parking lot of Bud's Country Lounge in Hyannis where Tsoleridas's sister would exchange the drugs for $2,000.

        Shea testified that the transaction occurred as follows. He reached the parking lot at the appointed time. He saw the petitioner arrive, driving a Toyota. When he entered the passengers' side of the Toyota, the petitioner identified herself as Tsoleridas's sister and handed him two sealed envelopes. Shea asked if this was the same "coke" as before and if the envelopes aggregated the agreed quantity. After receiving an affirmative response, he gave the petitioner $2,000. She counted the money and dropped the bills on the floor of the Toyota. Meanwhile Shea broke the seals, withdrew a clear plastic bag from inside each envelope, and inspected the contents. He then debarked, entered his own vehicle, and departed with the contraband.

        At the time of the transaction, the parking lot was deserted except for two law enforcement officers who were observing from a distance. They saw very little. One of them testified, however, that he watched the Toyota enter the parking lot and leave a few minutes after Shea exited the vehicle.

        On March 13, Tsoleridas sold Shea the ten ounces of cocaine that Shea had "ordered." Shortly thereafter, the authorities searched the house at 9 Beth Lane and found drugs, large sums of cash, and drug-related paraphernalia. The petitioner was present during the search. When she asked to see the warrant, however, the officers claimed to have lost it.

        A Barnstable County grand jury subsequently indicted both Tsoleridas and the petitioner for trafficking in cocaine. See Mass. Gen. Laws ch. 94C, § 32E(b). The petitioner was tried on a single charge, based upon her alleged complicity in the March 8 transaction. She stood trial alone (Tsoleridas having fled the country). Shea and the petitioner were the main witnesses, and they gave sharply conflicting accounts as to what had occurred inside the Toyota.

        Shea's testimony was along the lines described above. The petitioner, however, testified that she knew nothing of the drugs, but had been coerced by her brother into doing what she thought was a non-drug-related errand for him. Her version of what happened in the Toyota differed from Shea's in no fewer than four crucial respects. She denied having handed Shea the envelopes, saying that he removed them from the right front seat. She also denied that she and Shea had the conversation he described (or any conversation relating, directly or indirectly, to cocaine). She denied that she counted the money, instead saying that Shea threw it at her (with the result that the bills fluttered to the floor of the Toyota). And, finally, she denied that Shea opened the envelopes or inspected their contents in her presence.

        To buttress this account, the defense presented the testimony of the petitioner's friend, Patricia Gisleson. Gisleson testified that she was at the petitioner's home

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on March 8 and overheard Tsoleridas and the petitioner arguing. Tsoleridas wanted her to deliver two envelopes for him. After the petitioner succumbed to Tsoleridas's bullying, Gisleson helped to move the petitioner's Toyota out of the garage. In the process, she noticed that Tsoleridas had placed two sealed envelopes on the front passenger's seat. The petitioner then drove away. Gisleson was still at 9 Beth Lane when the petitioner returned. The petitioner seemed very upset.

        Due to the fact that the search party had been unable to display a warrant, a suppression order issued. Thus, the Commonwealth could not introduce the evidence seized in the house search during its case in chief. After the petitioner testified, however, the trial justice allowed the Commonwealth to introduce that evidence for impeachment purposes. Following arguments of counsel and the court's charge, the jurors could not reach agreement and the trial justice declared a mistrial.

        The Commonwealth elected to retry the petitioner. Much the same proof scenario obtained at the second trial, except that Gisleson's testimony was much more detailed. She stated, inter alia, that Tsoleridas had slapped the petitioner when she initially refused to do his bidding. She also elaborated on the reason that Tsoleridas gave for wanting the petitioner to run the errand: the man she was to meet owed him money, and she was to give the man some drill bits and collect $2,000. Then, too, Gisleson volunteered that the petitioner had told her that, when she met Shea, he had thrown the money at her. Despite Gisleson's more expansive testimony, the jury deadlocked once again.

        This brings us to the third trial. Because of their relationship to the issues on appeal, we describe the events that played out during this trial in greater detail.

        As the third trial began,1 the petitioner's counsel—the selfsame lawyer who had represented her at the two earlier trials— elected to deliver his opening statement on the heels of the prosecutor's opening. In the course of this statement, the lawyer promised—not once, but four times—that the petitioner would testify. In the bargain, the lawyer emphasized the importance of this testimony. He pointed out that the case revolved around the petitioner's knowledge (or lack of knowledge) that the envelopes delivered to Shea contained cocaine, and that her version of the relevant events—particularly those that transpired in the car—was very different from Shea's. Counsel's peroration drove home these points. He told the jurors:

        The case is going to come down to what happened in that car and what your findings are as you listen to the credibility and the testimony of Todd Shea versus what you[r] findings are as you listen to the testimony of Barbara Ouber.

         . . .

         . . . You're going to hear a difference of opinion as to whether [the envelopes] were handed to Mr. Shea, whether he opened them in front of her; and as to the conversation.

        And you're going to have to decide the truth and veracity of those two witnesses; and that will be your ultimate decision in this case.

        As in the earlier trials, the Commonwealth's case in chief hinged on Shea's testimony. His direct examination yielded

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the version of the transaction described above. On cross-examination defense counsel brought out a few inconsistencies (e.g., that Shea originally had claimed that the envelopes were unsealed when he received them whereas he now admitted that they were sealed). Defense counsel also attempted to show that Tsoleridas's actions on the occasion of Shea's first visit to 9 Beth Lane indicated...

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