507 F.3d 50 (1st Cir. 2007), 06-2371, Teti v. Bender

Docket Nº:06-2371.
Citation:507 F.3d 50
Party Name:Joseph TETI, Petitioner, Appellant, v. James BENDER, Acting Commissioner, Massachusetts Department of Correction, Respondent, Appellee.
Case Date:November 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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507 F.3d 50 (1st Cir. 2007)

Joseph TETI, Petitioner, Appellant,

v.

James BENDER, Acting Commissioner, Massachusetts Department of Correction, Respondent, Appellee.

No. 06-2371.

United States Court of Appeals, First Circuit.

November 8, 2007

Heard Oct. 1, 2007.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, Hon. Rya W. Zobel, U.S. District Judge.

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[Copyrighted Material Omitted]

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Rosemary Curran Scapicchio, for petitioner.

Eva M. Badway, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for respondent.

Before Torruella, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.

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LYNCH, Circuit Judge.

In this opinion we address some issues new to this circuit about practice under the federal habeas corpus statute, 28 U.S.C. § 2254. Joseph Teti appeals from the denial of his federal petition for habeas corpus relief.1 The primary question in this appeal is whether the federal district court erred in applying the presumption of correctness under 28 U.S.C. § 2254(e)(1) to the state appellate court's findings of facts and in denying discovery and an evidentiary hearing.

Substantively, Teti argues that the state court erred in denying his claim that he had received ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights because, inter alia, his original defense attorney Bradford Keene had an actual conflict of interest.

We affirm the denial of habeas corpus relief by the district court.

I.

We describe the facts as they appear from the state court record. Teti was convicted in Massachusetts Superior Court in April 1999 on charges stemming from two cocaine trafficking incidents in 1996. See Mass. Gen. Laws ch. 94C, § 32E(b)(4). As he had provided cocaine to an undercover agent, Teti's primary defense was entrapment. Commonwealth v. Teti, 60 Mass.App.Ct. 279, 801 N.E.2d 279, 282 (2004). He testified that he was an addict and had been pressured by the agent to make the sale. Id.

On the third day of Teti's four-day trial the prosecutor raised an issue of possible conflict: that defense attorney Bradford Keene had also represented a witness hostile to Teti. Id. at 283, 801 N.E.2d 279. Teti originally hired attorney Keene in May 1998 but replaced him with attorney John McBride in January 1999. Id. at 282, 801 N.E.2d 279. After forwarding his file on Teti to McBride, Keene was no longer involved in the case, although he never formally withdrew his appearance and he sat at the defense counsel table during Teti's trial. Id. at 282-83 & n. 6, 801 N.E.2d 279. Sometime around April 1998, a year before Teti's trial, Keene had represented a man named Leo Lobello in some limited matters. Lobello, a convicted federal felon, was the informant who had introduced Teti to the undercover agent who bought the cocaine from Teti. Id. at 282, 801 N.E.2d 279. Keene insisted, however, that he did not know Lobello was the informant in Teti's case until a week before Teti's trial. Id. at 285, 801 N.E.2d 279.

McBride, who did know as early as February 1999 that Lobello was the informant, had called Lobello as a hostile witness in the vain hopes that Lobello would bolster the entrapment defense by demonstrating that Teti was not predisposed to sell cocaine and by appearing himself to be "the instigator of the drug transactions, as well as a reprobate and liar, testifying to curry favor with the Federal authorities," id. at 282, 801 N.E.2d 279.

Upon hearing the prosecutor's concern about a potential conflict, the court immediately questioned both Keene and McBride. That questioning, which has been the only hearing on this issue, underlies the description of the facts by the Massachusetts Appeals Court ("MAC") discussed below. Initially, the state trial judge stated her impression that Keene had a conflict of interest; she required him to withdraw, but allowed the trial to continue.

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The jury convicted Teti, and he was sentenced to fifteen years' imprisonment.

Two and a half years later, Teti moved for a new trial and, on denial of the new trial motion, moved for reconsideration. That motion was also denied. The same state judge who tried the case, in denying the motion for a new trial, concluded that contrary to her initial impression, there was no actual conflict of interest and no showing that any prejudice had resulted, even if there had been a conflict. Because Massachusetts law largely leaves the decision to grant an evidentiary hearing on a new trial motion to the sound discretion of the trial judge, and because Teti had not presented any substantial question of fact warranting an evidentiary hearing, the state judge declined to grant one. See Mass. R. Crim. P. 30(c)(3); Commonwealth v. Stewart, 383 Mass. 253, 418 N.E.2d 1219, 1222-23 (1981).

The MAC in 2004 affirmed the conviction as well as the denial of Teti's motion for a new trial. The MAC rejected Teti's claims that Keene had an actual conflict of interest in violation of Teti's federal and state constitutional rights, Teti, 801 N.E.2d at 284; that Keene's actions had caused Teti any prejudice, making it irrelevant whether Keene had a potential conflict of interest, id. at 286, 801 N.E.2d 279; and that Teti had been denied his right to effective assistance of counsel under the federal and state constitutions for other reasons, id. at 286-89, 801 N.E.2d 279.

The MAC made certain key findings of fact, which the federal habeas court later presumed were correct: (1) that, contrary to what the prosecutor had initially believed, Keene had not represented Lobello in seeking a Rule 35(b) motion in federal court to reduce Lobello's federal sentence, id. at 283, 285 n. 10, 801 N.E.2d 279; 2(2) that Keene's representation of Lobello was fully in the past and was limited to a few, unanswered phone calls to a South Carolina prison facility approximately one year before Teti's trial in an effort to have Lobello transferred to another facility, and that Keene had never spoken to or met Lobello, id. at 284-85, 801 N.E.2d 279; (3) that Keene was not aware that Lobello was the informant in Teti's case until one week before trial -- "a point by which [Keene's] activities on Lobello's behalf had long since ended," id. at 285, 801 N.E.2d 279; (4) that Keene did not participate in the preparation of Teti's case and that his "involvement with the trial was essentially nonexistent," id. at 286, 801 N.E.2d 279; and (5) that McBride learned of Keene's representation of Lobello only on the third day of Teti's trial, id. at 287, 801 N.E.2d 279. Based on these factual determinations, the MAC concluded that Teti failed to establish the existence of an actual conflict of interest. Id. at 285, 801 N.E.2d 279.

The MAC then considered whether apart from an actual conflict, Teti's counsel had a potential or, as state law phrases it, a "tenuous" conflict. It determined that, whether or not there had been a conflict, there was no prejudice in any event. Id. at 286, 801 N.E.2d 279. As the MAC sensibly reasoned, Keene's participation in the trial preparation and the trial itself was de minimis. Further, any privileged information that Keene did have would not have harmed Teti, as "[i]t would have been to the defendant's benefit for McBride to know more about Lobello, a hostile witness." Id.

Teti had also presented to the MAC a claim of ineffective assistance by McBride,

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based on several alleged deficiencies. Teti argued that McBride was ineffective in failing to investigate Keene's potential conflicts and to tell Teti about Keene's prior representation of Lobello, but the MAC held there was no ineffectiveness and no prejudice. Id. at 287, 801 N.E.2d 279. The MAC also noted that when the trial judge had questioned Teti about Keene's alleged conflict, Teti said he was "quite satisfied" with McBride's representation. Id. The MAC, accordingly, rejected Teti's assertion that had he been informed more fully of the conflict, he would have insisted on new counsel. Id.

Teti also argued that McBride was ineffective for failing to move to sever the indictments against him; for introducing evidence of additional, uncharged drug transactions; and for promising in his opening statement but then not providing testimony about the effects of Teti's psychological and drug dependency problems on his state of mind. The MAC concluded that none of these actions constituted ineffective assistance. See id. at 286-89, 801 N.E.2d 279.

The Supreme Judicial Court denied further appellate review. Commonwealth v. Teti, 441 Mass. 1104, 805 N.E.2d 44 (2004).

II.

In February 2005, Teti filed a petition for habeas corpus in federal court under 28 U.S.C. § 2254, raising the same arguments he had made to the MAC.

In an able opinion, the district court denied Teti's requests for discovery and an evidentiary hearing and denied habeas relief. The court applied the statutory presumption of correctness to the state court's factual determinations and viewed the claims actually ruled upon by the MAC through the deferential lens of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. § 2254(d), (e)(1).

The district court held that the state court holdings --that there was neither an actual conflict nor any prejudice -- were not an unreasonable application of federal law under AEDPA. See 28 U.S.C. § 2254(d)(1). Under federal law, an ineffective assistance of counsel claim requires demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668...

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