438 F.3d 35 (1st Cir. 2006), 05-2183, Lynch v. Ficco

Docket Nº:05-2183.
Citation:438 F.3d 35
Party Name:Edward H. LYNCH Jr., Petitioner, Appellant, v. Edward FICCO, Superintendent of the Souza-Baranowski Correctional Center; Thomas F. Reilly, Attorney General of the Commonwealth of Massachusetts, Respondents, Appellees.
Case Date:February 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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438 F.3d 35 (1st Cir. 2006)

Edward H. LYNCH Jr., Petitioner, Appellant,


Edward FICCO, Superintendent of the Souza-Baranowski Correctional Center; Thomas F. Reilly, Attorney General of the Commonwealth of Massachusetts, Respondents, Appellees.

No. 05-2183.

United States Court of Appeals, First Circuit.

February 15, 2006

Heard Dec. 6, 2005.


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Emanuel Howard for appellant.

Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

Before Boudin, Chief Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

After a jury trial in the Massachusetts Superior Court, Edward H. Lynch Jr. was convicted of first-degree murder and sentenced to life in prison. He appealed, and the Massachusetts Supreme Judicial Court (SJC) affirmed his conviction and affirmed the denial of various post-trial motions. See Commonwealth v. Lynch, 789 N.E.2d 1052, 1062 (Mass. 2003), cert. denied, 540 U.S. 1059 (2003).

Lynch filed a petition for a writ of habeas corpus in the federal district court. The court denied the petition on all grounds. Lynch then applied for a certificate of appealability (COA) as to the denial of the writ. He sought and obtained the COA for only one of the grounds in his habeas petition -- a due process claim based on an argument that the state trial court's garbled jury instructions effectively relieved the prosecution of the burden of proving malice beyond a reasonable doubt.

We review the petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. The respondents have two arguments. The first is that, under the particulars of habeas law, Lynch cannot get to federal review of the merits of the constitutional jury instruction issue unless he shows cause for and prejudice from the independent and adequate state ground of procedural waiver based on his failure to object at trial to the instructions. Lynch, in turn, attempts to show cause and prejudice to excuse his procedural default by asserting ineffective assistance of trial counsel.

The respondents alternatively argue that if the merits are reached, then the standard of review is that the SJC's conclusions must be "contrary to" or an "unreasonable application" of federal constitutional law, and they are neither. Lynch replies that the SJC did not address the federal constitutional question, and that on de novo review, he is entitled to relief.1

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This latter dispute raises a question of the closeness of the match between the SJC's "center of gravity" test and federal constitutional tests for evaluating error in jury instructions. We never reach that issue.

We affirm the district court's denial of the habeas petition on the ground that Lynch has failed to show cause and prejudice to excuse his procedural default.


A. The Underlying State Crime

The facts are described as they were found by the SJC, supplemented with other facts from the record that are consistent with the SJC's findings. We must "accept the state court findings of fact unless [Lynch] convinces us, by clear and convincing evidence, that they are in error." McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc) (citing 28 U.S.C. § 2254 (e) (1)); see also Smiley v. Maloney, 422 F.3d 17, 19 n.1 (1st Cir. 2005). Lynch recounts the facts somewhat differently to this court, but he does not argue that the SJC's description of what happened is in error.2

In June 1992, Lynch lived and worked on a hog farm in Lakeville, Massachusetts. Early in the afternoon of June 5, he went to Taunton and began drinking. Within several hours, he had consumed twelve to fourteen bottles of beer. At around 7:00 p.m., he moved to another bar, where he drank more beer, leaving only once at around 9:30 p.m.; he bought a pint of vodka and returned with it within ten minutes. When that bar closed at 1:00 a.m., Lynch remained "huddled in a doorway," continuing to drink from his bottle of vodka and napping. At 6:00 a.m., he had breakfast at a luncheonette, and then he returned to the second bar, where he resumed drinking. By 2:00 p.m., when he left the bar, Lynch had consumed approximately fourteen more alcoholic drinks.

Lynch left the bar in the company of Andrea Geremia, who had agreed to have sex with him for money. The two took a taxicab to Lynch's cottage on the grounds of the hog farm. Lynch had two beers, and Geremia had a soft drink. Lynch gave Geremia fifty dollars, and they went to the bedroom, where Lynch passed out before a sexual act was completed. Lynch awoke when he heard "the sound of a squeaky dresser drawer being opened." He concluded that Geremia, who was walking away from the drawer and who had her hand down her shirt, had stolen money from him. He became angry and followed Geremia to the kitchen. She turned on him, holding a ten-inch boning knife. Lynch "easily overpowered" her; he is six feet, two inches tall and then weighed 180 pounds, and she was "much smaller." Lynch grabbed the knife from Geremia and stabbed her. According to a forensic pathologist, Geremia had been stabbed five times in the chest and abdomen, each time

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receiving a wound that by itself would have been fatal. She had also been wounded twice on her back and side. Lynch watched her bleed to death. The next day, he buried her body in a trench on the farm used for disposing of dead pigs.

Lynch was incarcerated on unrelated charges and confided in another inmate, who told another; the police eventually interviewed Lynch's confidant. Using the information they obtained, the police discovered Geremia's body on January 4, 1993.

B. Trial in the Massachusetts Superior Court

Lynch was charged with murder in the first degree. Lynch's defense at trial was that he had stabbed Geremia in self-defense or by accident, and that his "sense of reality was altered" at the time of the stabbing because of his heavy drinking. He testified he did not intentionally stab Geremia; the stabbing was inadvertent and happened during a struggle in which Geremia tried to stab him with the knife, kneed him in the groin, and slapped him. Lynch and his trial counsel reenacted the struggle for the jury (Lynch as himself, counsel as Geremia). Lynch testified that when he realized Geremia had been stabbed, he tried to stop her bleeding by pressing a towel onto the stab wound. The defense also presented evidence of Lynch's heavy consumption of alcohol earlier and expert testimony about the effects of alcohol addiction and excessive drinking. The expert opined that when Lynch awoke from his passed-out state, he would have felt numb and could have been in a "blackout" or "hallucinating" when Geremia was stabbed.

Defense counsel's closing argument focused on Lynch's extreme intoxication and lack of sleep -- as counsel put it, "[h]e drank and he drank and he drank" before going home with Geremia, and then he drank some more. Counsel argued that Geremia had violated Lynch's rights and the sanctity of Lynch's home by stealing money from the dresser, but this was presented not as justification for an attack on Geremia, but rather as the precursor to Lynch's simply asking Geremia to leave. Counsel stressed not rage, but the notion that Lynch "didn't know what [Geremia] was capable of" once Geremia "pull[ed] a knife." Lynch reacted as any reasonable person would: he tried to get the knife out of Geremia's hand, whereupon she "took a swipe at his hand, " and a struggle ensued, in which Geremia continued to kick and hit Lynch, until at some point Lynch noticed some blood. Lynch then "panicked," tried to stop the bleeding with a towel, and ultimately concealed Geremia's body on the grounds of the hog farm.

Counsel suggested that the supposed "multiple stab wounds" had actually occurred later on, when Geremia's body was being recovered. Counsel portrayed Lynch as "scared" and concluded that the killing "was self-defense, and it was an accident," that "[a]t the very worst . . . it was recklessness," and that there "certainly wasn't malice."

At the heart of Lynch's habeas argument are the jury instructions distinguishing murder from voluntary manslaughter. At the beginning of the jury charge, the trial judge correctly instructed the jury that "[a]ll of my instructions are equally important. Do not single out some and ignore others." The court also stated that "[w]e can't decide that one law is a good law and another is a bad law .... You must accept the entire law that I'm going to give you."

When it came to the substantive law governing the charges, the court started with murder: "Murder is the unlawful killing

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of a human being with malice aforethought. Murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty is murder in the first degree. Murder which does not appear to be murder in the first degree is murder in the second degree."

On malice itself and on voluntary manslaughter, the court said:

[T]he crime is voluntary manslaughter, not murder, if malice is negated by reasonable sudden provocation or sudden combat or at least by a reasonable doubt whether those circumstances were absent. I will instruct you on voluntary manslaughter in a few minutes.

The existence of malice has not been proved if you find the death resulted when the defendant was in the state of hot blood upon a reasonable provocation or sudden combat or in the exercise of self-defense, however excessive you find the use of force to have been in the circumstances.

The court told the jury not to draw an inference of malice "unless you are persuaded beyond a reasonable doubt that the defendant's specific intent did not...

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