Burks v. Dubois, No. 94-2197

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before SELYA, CYR and BOUDIN; SELYA
• Citation: 55 F.3d 712
• Parties: Oscar N. BURKS, Jr., Petitioner, Appellant, v. Larry E. DUBOIS, Respondent, Appellee. . Heard
• Docket Number: No. 94-2197
• Decision Date: 01 May 1995

Page 712

55 F.3d 712 Oscar N. BURKS, Jr., Petitioner, Appellant,
v.
Larry E. DUBOIS, Respondent, Appellee. No. 94-2197. United States Court of Appeals,
First Circuit. Heard May 1, 1995.
Decided June 8, 1995.

Page 714

Neil F. Colleran, Lexington, MA, for appellant.

Gregory I. Massing, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

Petitioner-appellant, Oscar N. Burks, Jr., asked the federal district court to invoke its habeas corpus powers, 28 U.S.C. Secs. 2241-2254 (1988), and set aside his state conviction on charges of trafficking in cocaine, exploiting a minor for illegal drug-related purposes, and illicitly conveying articles to a state penal institution. See Mass.Gen.L. ch. 94C, Sec. 32E, 32K (1989); Mass.Gen.L. ch. 268, Sec. 31 (1989). The district court declined to issue the writ. Petitioner appeals. We affirm.

I

Background

The stage can be set for consideration of this single-issue appeal without lengthy elaboration. In doing so, we take the facts in the conventional manner prescribed by the jurisprudence of habeas corpus. See 28 U.S.C. Sec. 2254(d) (stipulating presumption of correctness that attaches to state court findings of fact in federal habeas proceedings); see also Miller v. Fenton, 474 U.S. 104, 112-15, 106 S.Ct. 445, 450-52, 88 L.Ed.2d 405 (1985).

Petitioner, a correctional officer at a state penitentiary in Gardner, Massachusetts, agreed to facilitate an inmate's scheme to smuggle contraband into the prison. The plan called for petitioner to pick up an ounce of cocaine at a predetermined spot outside the institution and deliver it to the inmate in return for a $200 fee plus a jot of cocaine. Petitioner did not know that his newfound crony was fronting for the state police.

After one unsuccessful attempt, the inmate told petitioner that the drugs and the money would be deposited in a residential mailbox in Worcester. On August 15, 1991, petitioner sojourned to that city, located the house (which, unbeknownst to him, was under intensive police surveillance), and drove by it several times. He then visited a nearby doughnut shop where he invented a cock-and-bull story, the gist of which was that he wished to retrieve a letter from his girlfriend's mailbox but could not do so himself. On this basis he recruited a 14-year-old boy as an unwitting accomplice, agreeing to pay the lad $30 to fetch the prize from the mailbox.

The pair reconnoitered the drop site. Petitioner then watched as the boy approached the mailbox and withdrew a paper bag. Instead of waiting for his courier to return,

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however, petitioner drove away. We think a jury could properly have inferred either that petitioner's nerve failed or that he spied the stakeout. At any rate, he never obtained possession of the bag.

In due course, the authorities arrested petitioner, charged him, and proceeded to trial. After the Commonwealth presented its case, the petitioner testified in his own defense. He admitted colloquing with the inmate. He further admitted that he knew the mailbox contained both drugs and money, but he assumed that they would be in separate envelopes. He swore that he only intended to pocket the cash, not to deliver the cocaine. When he saw the paper bag, he thought that it probably contained drugs. At that point, he panicked and fled.

On cross-examination the prosecutor asked petitioner: "And, sir, you knew that that package contained drugs, and still, sir, you sent that fourteen year old kid to retrieve it, didn't you, sir?" The superior court judge, sua sponte, ruled the question improper, interjecting: "That's argumentative." The prosecutor immediately shifted gears. ¹

During closing argument, the prosecutor, using rhetorical questions to flay her prey, took unwarranted liberties with this portion of her cross-examination. She argued:

And what does the defendant do? He leaves the fourteen year old high and dry, knowing--I asked him. I said to him, "You knew that package contained cocaine, but still you sent a fourteen year old to retrieve it?"

And what did the defendant say? "Yes."

Petitioner's trial counsel did not object to the prosecutor's flagrant misstatement. In the end, the jury found petitioner guilty.

Following the imposition of sentence, petitioner secured the services of successor counsel and moved for a new trial, arguing that the prosecutor's distortion had caused justice to miscarry. The trial judge rejected the motion and petitioner appealed. The Massachusetts Appeals Court summarily affirmed the denial of relief, see Commonwealth v. Burks, 34 Mass.App. 1106, 608 N.E.2d 1066 (1993) (table) (unpublished rescript), and the Supreme Judicial Court declined further appellate review, see Commonwealth v. Burks, 414 Mass. 1105, 617 N.E.2d 639 (1993) (table).

Little daunted, petitioner sought habeas corpus in the federal district court. He advanced a single claim: that the prosecutor's misstatement of the evidence in her summation deprived him of due process and thwarted his right to a fair trial. The respondent, a state correctional official, moved to dismiss, asserting that because petitioner had not objected to the misstatement when it was uttered in state court, his constitutional claim could not be entertained in a federal habeas proceeding. Petitioner acknowledged the procedural default but nonetheless opposed dismissal on two bases. He said that he could demonstrate cause for, and prejudice from, the procedural default; and, moreover, that absent habeas relief, a miscarriage of justice would go uncorrected. Judge Gertner, adopting the report and recommendation of a magistrate judge, overrode these objections and dismissed the petition. This appeal followed.

II

Analysis

A.

Applicable Legal Principles

The habeas corpus anodyne is designed neither to provide an additional layer of conventional appellate review nor to correct garden-variety errors, whether of fact or law, that may stain the record of a state criminal trial. Rather, the remedy is limited to the consideration of federal constitutional claims. See Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (affirming that the purpose of federal habeas corpus review is to ensure that individuals are not imprisoned in violation of the Constitution); see also Barefoot v.

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Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983) ("Federal courts are not forums in which to relitigate state trials."). Thus, federal habeas review is precluded, as a general proposition, when a state court has reached its decision on the basis of an adequate and independent state-law ground. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991); Harris v....