752 F.3d 505 (1st Cir. 2014), 13-1191, Connolly v. Roden

Docket Nº:13-1191
Citation:752 F.3d 505
Opinion Judge:LYNCH, Chief Judge.
Party Name:EVERETT H. CONNOLLY, Petitioner, Appellant, v. GARY RODEN, Respondent, Appellee
Attorney:Robert F. Hennessy, with whom Thompson & Thompson, PC was on brief, for appellant. Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellee.
Judge Panel:Before Lynch, Chief Judge, Thompson, Circuit Judge, and Smith,[*] District Judge. THOMPSON, Circuit Judge, concurring.
Case Date:May 21, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 505

752 F.3d 505 (1st Cir. 2014)

EVERETT H. CONNOLLY, Petitioner, Appellant,

v.

GARY RODEN, Respondent, Appellee

No. 13-1191

United States Court of Appeals, First Circuit

May 21, 2014

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

Robert F. Hennessy, with whom Thompson & Thompson, PC was on brief, for appellant.

Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellee.

Before Lynch, Chief Judge, Thompson, Circuit Judge, and Smith,[*] District Judge.

OPINION

Page 506

LYNCH, Chief Judge.

Petitioner Everett Connolly seeks the grant of habeas corpus vacating his state court convictions from 2006 for drug distribution and trafficking on the grounds that the state proceedings violated his federal Confrontation Clause rights, as articulated in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The Massachusetts Supreme Judicial Court (SJC) had acknowledged that there was Melendez-Diaz error but found it harmless under a standard equivalent to the federal standard under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

On federal habeas review, the district court denied the petition, reasoning that the state courts had already found that the error was harmless and that the petitioner could not show sufficient injury under the highly deferential standards announced by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and Fry v. Pliler, 551 U.S. 112, 119-20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). See Connolly v. Roden, No. 09-11987, 2013 WL 139702, at *3 (D. Mass. Jan. 11, 2013).

We affirm. We conclude that under the Brecht standard of review, which is even more deferential than the ordinary standard of review under the Antiterrorism and Effective Death Penalty Act (" AEDPA" ), 28 U.S.C. § 2254(d)(1), petitioner has failed to show the " substantial and injurious effect or influence" required to set aside the SJC's affirmance of his conviction. Fry, 551 U.S. at 116 (quoting Kotteakos v. United States,

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328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

I.

The vast majority of the key facts of this case are undisputed. Massachusetts law enforcement officers began investigating Connolly for suspected cocaine distribution in 2003. The investigation included surveillance and observation by police officers, which found Connolly making numerous apparent drug sales using his minivan. Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356, 361 (Mass. 2009). On two separate occasions in August 2004, an undercover officer made controlled purchases of crack cocaine from Connolly. During the first purchase, the undercover officer obtained what was later measured to be 1.2 grams of crack cocaine for $200. In the second, the officer obtained 0.56 grams of crack cocaine for $100.

In light of the controlled purchases, the police obtained an arrest warrant for Connolly and a search warrant to search Connolly's minivan and its occupants. Id. at 362. The warrants were executed on September 9, 2004. During the search of Connolly's minivan, the police found a " large ball" of crack cocaine,1 " wrapped in electrical tape and later determined to weigh 124.31 grams," wedged under the dashboard. Id.

Connolly was indicted by a state grand jury in December 2004 on two counts of cocaine distribution and one count of cocaine trafficking.2 See Mass. Gen. Laws ch. 94C, § § 32A(c) (distribution), 32E(b)(3) (trafficking). At trial in August 2006, the prosecution introduced several pieces of evidence to prove drug type and, as to the trafficking charge, quantity.3 With respect to the controlled purchases, Detective Lieutenant John Allen, who had 25 years of experience in narcotics, testified that he had personally field-tested the substances at the time of each of the two August 2004 purchases and concluded that they were cocaine; the undercover officer who made the purchases also testified that Connolly had said the substances were crack cocaine. Connolly, 913 N.E.2d at 375. With respect to the cocaine found during the minivan search, Sergeant John Milos, who had investigated hundreds of cocaine distribution cases over seventeen years of experience, testified that field tests showed the ball recovered from the van was cocaine. Id. Trooper James Bazzinotti, who had thirteen years of experience in conducting drug searches, further testified that the substance was cocaine, and that the ball looked " like a baked potato," was " bigger than a baseball," and was a " large ball, hard," and was " a very solid piece" of cocaine. Id. at 375-76. The jury also had direct physical access to the actual cocaine, which was sent to the jury room, although the ball was " more flaked, more crushed up" after the chemical analysis. Id. at 376.

The Melendez-Diaz problem in the case arose because the prosecution also introduced a certificate from the drug analysis laboratory explaining that the powder in the ball was cocaine and weighed 124.31

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grams, without calling the analyst as a witness and so not making the analyst available for confrontation. At the time the certificate was admitted, the judge instructed the jury that under Massachusetts law, the prosecution was not required to offer live testimony from the analyst and could introduce the certificate alone without any adverse inferences being drawn due to the analyst's absence. Connolly objected to the admission of the certificate on Fourth Amendment grounds but not on Confrontation Clause grounds. He did not ask to cross-examine the analyst who prepared the lab certificate, nor did he object to the jury instruction on Confrontation Clause grounds. The closing jury instructions allowed the jury to consider the laboratory certificate but cautioned that " [i]t's for you to determine whether you credit it or not. . . . [Y]ou're not compelled to accept it."

Connolly's theory of the case was that the prosecution had not adequately proven that he was the drug possessor. He identified potential weaknesses in the testimony of the government's witnesses to argue that there was insufficient evidence that he was actually involved in the two controlled purchases or that he was aware that the ball of crack was in his van. Connolly made no challenge to the quantity of crack for purpose of the trafficking charge. In fact, in closing arguments, his attorney appeared to accept the quantity at face value and challenged only identity, arguing: " [t]he Commonwealth has to prove to you beyond a reasonable doubt that Mr. Connolly knew that those 124 grams w[ere] in his vehicle on the morning in question. I suggest to you there's no proof of it."

The jury convicted Connolly on all counts. Following the conviction, Connolly appealed to the Massachusetts Appeals Court. In January 2009, the SJC transferred the case to its own docket sua sponte for direct review. While the case was pending in the SJC, the U.S. Supreme Court decided Melendez-Diaz v. Massachusetts, which held that, absent a showing of unavailability, the introduction of a lab certificate without the opportunity to cross-examine the technician who created it violates a defendant's Sixth Amendment Confrontation Clause rights. 557 U.S. at 311. Following Melendez-Diaz, Connolly presented the narrow argument that his conviction must be reversed because the trial judge had given a contemporaneous jury instruction upon the introduction of the certificates stating that the prosecution was not required to produce the lab analyst, in violation of his Confrontation Clause rights. He had not raised that argument at any earlier point in the litigation.

The SJC read Connolly's argument charitably in his favor by considering not only the instruction but also whether admission of the certificates themselves was error. See Connolly, 913 N.E.2d at 374-75. It decided that there was Melendez-Diaz error in admitting the certificates without presenting the analyst for cross-examination, but rejected Connolly's claim that his conviction must be reversed on that account. Using a state law standard analogous to the federal standard for harmless error and reading any potential waiver problem in Connolly's favor, the SJC reasoned that any error " was harmless beyond a reasonable doubt" because the jury had ample evidence aside from the lab certificates from which it could have concluded that the quantity of cocaine was between 100 and 200 grams. Id. at 374-76; cf. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (explaining that federal constitutional error is harmless only if the reviewing court can " declare a belief that it was harmless beyond a reasonable doubt" ). It

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likewise rejected Connolly's other claims of error and affirmed the conviction.

Connolly petitioned for habeas review in federal district court under 28 U.S.C. § 2254. He argued that the state proceedings had violated, inter alia, his Sixth Amendment rights under Melendez-Diaz.4 For the first time, he argued that the prejudice came from the actual admission of the certificate without the analyst's live testimony (rather than from the contemporaneous jury instruction).5 In a thorough opinion, the federal district court denied Connolly's petition. The court, applying the Brecht standard, concluded that " the erroneous admission of the chemical analyses did not have a substantial and injurious effect on the verdict with respect to the weight of cocaine charged." Connolly, 2013 WL 139702, at *3. The court reasoned that although the jury likely did rely on the certificates, the...

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