Cronin v. Comm'r of Prob.

• Decision Date: 07 April 2015
• Docket Number: No. 14–1580.,14–1580.
• Citation: 783 F.3d 47
• Parties: Stephen CRONIN, Petitioner, Appellant, v. COMMISSIONER OF PROBATION, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

783 F.3d 47

Stephen CRONIN, Petitioner, Appellant

v.COMMISSIONER OF PROBATION, Respondent, Appellee.

No. 14–1580.

United States Court of Appeals, First Circuit.

April 7, 2015.

Edward Crane, with whom Law Office of Kevin Crane was on brief, for appellant.

Todd M. Blume, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before BARRON, SELYA and STAHL, Circuit Judges.

Opinion

SELYA, Circuit Judge.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court proscribed the prosecution's use of a defendant's post-Miranda silence in a criminal case. See id. at 619, 96 S.Ct. 2240. This state habeas case implicates that proscription. After careful consideration, we conclude that even if the Massachusetts Appeals Court (MAC) misapplied the Doyle rule—a matter on which we take no view—any comment on the petitioner's silence was harmless when considered in the context of the trial as a whole. Consequently, we affirm the district court's denial of habeas relief.

I. BACKGROUND

We briefly rehearse the factual and procedural background. In May of 2009, petitioner-appellant Stephen Cronin was charged in a Massachusetts state court with operating a motor vehicle under the influence of alcohol, third offense, and negligent operation of a motor vehicle.See Mass. Gen. Laws ch. 90, § 24(1)(a)(1), (2)(a). At trial, Officer David Jordan testified that he witnessed a van veer into a motel parking lot in Braintree, drive across a traffic island, and twice stop abruptly before parking haphazardly. Officer Jordan approached the van on foot, keeping in view the driver (whom he identified as the petitioner). Officer Brian Eng, who was called to the scene to provide backup, testified that the petitioner stated that he was coming from Jamaica Plain and had consumed a few cocktails. Following a failed field sobriety test, the petitioner was arrested. At some point during the booking process, the petitioner was given written Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and invoked his right to remain silent.

The petitioner testified to a starkly different version of the relevant events. He claimed that he had not been driving the van; rather, Michelle Sires (his quondam roommate) drove the van back to the motel after running an errand. The petitioner had been drinking beer at the motel for most of the day and became involved with the police, he said, only when he went to the van that Sires had parked to retrieve a pack of cigarettes from the glove compartment. Officer Jordan confronted the petitioner just as he exited the driver's side door, cigarettes in hand. The petitioner further testified that he told the officers that he was not the driver.

After eliciting this testimony, defense counsel asked: “Did you ever tell [the officer] that your friend Michelle was actually the driver of the van?” The petitioner replied in the negative. When defense counsel asked “Why didn't you do that?” the petitioner responded, “Because she had a couple of warrants on her.”

The prosecutor's cross-examination began as follows:

Q: Good afternoon. So you never told the officers anything about what you're telling us today?

A: What's that?

Q: About Michelle.

A: No. No.

Q: You never told either of these officers?

A: No.

Q: You never told them during the course of your booking?

A: No.

Q: You thought you were arrested wrongly for a crime you didn't do?

A: Yes.

Q: But you never told the police anything about this over the hours you were with them?

A: No.

Michelle Sires did not testify (according to the petitioner, she had moved to Florida shortly after his arrest).

In his closing argument,¹ the prosecutor pointed out a number of inconsistencies between the officers' account and that of the petitioner, and then stated,

He never said anyone else was driving. He said nothing about this Michelle individual.... Michelle never came out ... if this person even exists; if she does exist, if she was even there.... He's concerned about this other person who has warrants; and yet, he's getting arrested, and he says nothing. Does that make any sense that someone would actually do that in ... some sort of ... chivalrous act that he'd do for this other individual?

In her summation, defense counsel asserted that the petitioner “told the officers that he was not driving, but he did not tell them that Ms. [Sires] was driving. He did not tell them because she had warrants out for her arrest, and he did not want her to get in trouble.” She suggested that “[t]he only thing that Mr. Cronin may be guilty of is misguided chivalry.”

The jury rejected the petitioner's exculpatory tale and found him guilty. The trial justice sentenced the petitioner to a term of imprisonment followed by a term of probation.

The petitioner appealed. Pertinently, he complained that the prosecutor's cross-examination and closing argument constituted constitutionally forbidden commentary on his post-Miranda silence. The MAC spurned this plaint, see Commonwealth v. Cronin, 978 N.E.2d 592 (Mass.App.Ct.2012) (table), full text at 2012 WL 6027750, and the Supreme Judicial Court summarily denied the petitioner's application for further appellate review, see Commonwealth v. Cronin, 464 Mass. 1104, 982 N.E.2d 1188 (Mass.2013) (table).

The petitioner repaired to the federal district court in search of habeas relief, see 28 U.S.C. § 2254, naming as the respondent the Commissioner of Probation of the Commonwealth of Massachusetts. The district court rebuffed his habeas petition, see Cronin v. Comm'r of Prob., No. 13–11169, 2014 WL 1784056, at *6 (D.Mass. May 2, 2014), but issued a certificate of appealability, see 28 U.S.C. § 2253(c), limited to the question of whether the MAC's decision was contrary to or an unreasonable application of the Doyle rule. This timely appeal followed. While the petitioner has fully served the incarcerative portion of his sentence, he remains on probation and, thus, in custody for federal habeas purposes. See 28 U.S.C. § 2254(a) ; Jackson v. Coalter, 337 F.3d 74, 78–79 (1st Cir.2003).

II. ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104–132, 110 Stat. 1214, governs federal habeas review of state-court convictions. See id. § 104, 110 Stat. at 1218–19 (codified as amended at 28 U.S.C. § 2254 ). Under the AEDPA's peculiarly deferential standards, error by a state court, without more, is not enough to warrant federal habeas relief. See McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (en banc). The AEDPA contemplates increments of error: to warrant habeas relief, the last reasoned state-court decision must be not only erroneous but also “contrary to,” or infected by “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) ; see Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In conducting this inquiry, state-court factual findings are presumed correct, and that presumption may be overcome only by clear and convincing proof. See 28 U.S.C. § 2254(e)(1) ; Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir.2002).

Under the first furculum of the AEDPA regime, a decision is contrary to clearly established federal law either if it announces a rule of law that directly contradicts existing Supreme Court precedent or if the state court has reached a different result than the Supreme Court on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ; Foxworth v. St. Amand, 570 F.3d 414, 424 (1st Cir.2009). Under the second furculum, an unreasonable application of clearly established federal law occurs when:

the state court correctly identifies the governing legal principles, but (i) applies those principles to the facts of the case in an objectively unreasonable manner; (ii) unreasonably extends clearly established legal principles to a new context where they should not apply; or (iii) unreasonably refuses to extend established principles to a new context where they should apply.

Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir.2007).

That these standards are strict is no accident. The Supreme Court has admonished that federal habeas relief is to be granted only sparingly and is reserved for cases in which “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) ; see Janosky v. St. Amand, 594 F.3d 39, 47 (1st Cir.2010) (“To justify federal intervention, the state court's application must be both incorrect and unreasonable.”). And even if the state court's decision fails this deferential test, federal habeas relief will not follow unless the error had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ).

With this analytic framework in place, we turn to the case at hand. Our review of the district court's disposition of a habeas petition is de novo. See Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.2006).

Here, the last reasoned state-court decision is that of the MAC. The petitioner submits that the MAC's decision was both contrary to and an unreasonable application of clearly established federal law because the prosecutor's questions and comments about his failure to mention Michelle at or after the time of arrest contravened Doyle and, therefore, abridged his right to due process.²

Under the AEDPA, clearly established federal law is that articulated by the Supreme Court, not that articulated by lower federal courts. See 28 U.S.C. § 2254(d)(1) ; Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865–66, 176 L.Ed.2d 678 (...