McCambridge v. Hall, No. 00-1621.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Lynch
• Citation: 303 F.3d 24
• Parties: John M. McCAMBRIDGE, Petitioner, Appellant, v. Timothy HALL, Superintendent, Respondent, Appellee.
• Docket Number: No. 00-1621.
• Decision Date: 27 August 2002

303 F.3d 24 John M. McCAMBRIDGE, Petitioner, Appellant,
v.
Timothy HALL, Superintendent, Respondent, Appellee. No. 00-1621. United States Court of Appeals, First Circuit. August 27, 2002.

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John M. McCambridge on brief pro se.

Elizabeth L. Prevett, Federal Defender Office, on brief for amicus curiae Federal Defender Office.

James J. Arquin, Assistant Attorney General, and Thomas F. Reilly, Attorney General, on brief for appellee.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, TORRUELLA and SELYA, Circuit Judges, CYR, Senior Circuit Judge, and LYNCH, LIPEZ and HOWARD, Circuit Judges.

OPINION EN BANC

LYNCH, Circuit Judge.

Petitioner John M. McCambridge appeals the district court's denial of his habeas corpus petition challenging the constitutionality of his state conviction for manslaughter. A panel of this court had earlier reversed the district court and granted his petition, holding: (1) that the prosecution failed to disclose exculpatory evidence and improperly took advantage of the absence of this evidence in its closing arguments, in violation of McCambridge's right to due process; and (2) that the Massachusetts Appeals Court decision holding otherwise was contrary to and an unreasonable application of clearly established Supreme Court law. McCambridge v. Hall, No. 00-1621, slip op., 2001 WL 1097770 (1st Cir. Sept. 24, 2001). That opinion was withdrawn when the full court subsequently granted the Commonwealth's petition for en banc review. We now affirm the district court's denial of habeas corpus.

I.

John McCambridge was charged in 1994 with first degree murder, weapons violations

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and various motor vehicle offenses. The charges arose out of a shooting and a motor vehicle accident involving McCambridge and the victim, Richard Doyle. McCambridge admitted to the shooting and said he acted in self-defense. The jury rejected the murder charge and the charge that he was operating a motor vehicle after his license had been revoked or suspended, but it convicted him of manslaughter, unlawful possession of a fire-arm, operating a motor vehicle under the influence of alcohol, and reckless operation of a motor vehicle. He is currently serving a sentence of fifteen to twenty years.

We describe the facts pertinent to the grounds of decision as they were found by the state court, Commonwealth v. McCambridge, 44 Mass.App.Ct. 285, 690 N.E.2d 470 (1998), fleshed out by other facts contained in the record and consistent with the state court findings. We are bound to accept the state court findings of fact unless McCambridge convinces us, by clear and convincing evidence, that they are in error. 28 U.S.C. § 2254(e)(1). On no point has he done so.

McCambridge and Doyle were drinking friends and former co-workers. The two had been out drinking together at a bar in Cambridge on the night of the incident, which occurred in the early hours of November 11, 1993. At the bar, McCambridge argued with the bartender, screaming at him either because of the television set, or because of McCambridge's attentions to the bartender's girlfriend. Leaving the bar around one a.m., Doyle and McCambridge drove off together in Doyle's van.

At about two a.m., a state trooper observed a traffic disturbance on the Southeast Expressway, which was caused by the van weaving through the southbound lanes and driving unusually slowly, about forty miles per hour, on this major road. The trooper turned on his lights and siren in an attempt to pull over the van, but the van continued to weave through the lanes. The van then accelerated to between fifty miles per hour and sixty-five miles per hour and swerved into the cement curbing on the right shoulder of the Expressway. After the van hit the right shoulder, it fish-tailed across the road, turning perpendicular to the Expressway and slowing to a speed of about thirty-five miles per hour. The van then struck the cement center median head-on, hitting first on the front right side, then with the whole front of the van. The van went up into the air, rising several feet, and landed with the driver's side down, facing the wrong way down the road. The van then skidded backwards about ten feet, rotating 360 degrees as it slid. The trooper also said that, as the van went into the center median, he saw a head in the driver's seat area; the head smashed into the windshield as the van hit the ground. The trooper estimated that about two minutes passed from when he first saw the van until the crash, and that the van had traveled about two or two-and-a-half miles, weaving and then crashing.

A second witness, an off-duty state trooper, saw the van weaving through the Expressway lanes, then fish-tailing into the right shoulder, crossing the Expressway into the center median, rising up into the air, and landing on the driver's side. A third witness saw the van weaving across lanes, then actually rocking back and forth before it hit the right shoulder, at which point it shot straight across the road into the center median, and flipped onto its side, landing with the driver's side down on the pavement.

The trooper and other witnesses found McCambridge in a fetal position in the area of the driver's seat, bleeding from a head injury. Rescue personnel had to remove the van windshield in order to free

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McCambridge from the vehicle. As the rescue personnel were removing McCambridge's outerwear, a derringer pistol fell out of his clothing.

Doyle had been thrown from the van and his head was pinned under the driver's side rear wheel so that only his body was visible. His clothing had been torn off around the neck area, leaving his chest completely exposed. The state troopers at the scene reported that his skin appeared blue or grayish, he was not breathing and he had no pulse, although one paramedic testified that Doyle was still warm to the touch when the paramedic arrived. There was no attempt to resuscitate him. Doyle was pronounced dead upon arrival at the hospital. He had been shot once in the right cheek and once in the back (in the area of the right shoulder). He also had a head wound indicating that the back of his head had struck or been struck with a linear object that was at least three inches in length and had no sharp or rough edges. Doyle's blood alcohol level was 0.22%.

In the van, the troopers found a Smith & Wesson semiautomatic pistol; the safety was off and the gun was cocked, loaded, and ready to fire. The police also found a billy club with blood on it that was consistent with Doyle's blood type and two boxes of ammunition, each corresponding to one of the two guns. Doyle had been living in the van prior to the crash, and the van was used by a homeless advocacy organization to transport individuals to shelters.

The prosecution's theory at trial was that McCambridge had shot Doyle and was driving the van, en route to dumping the body, when the crash occurred. McCambridge admitted shooting Doyle, but argued he did so in self-defense. More specifically, McCambridge claimed that Doyle, in a drunken rage, was threatening to shoot him for implying that Doyle was a child abuser. McCambridge says that the derringer was Doyle's, which Doyle himself had placed on the dash-board, as he was on his way to sell the gun to a customer in Quincy.

McCambridge testified that the argument in the van had its genesis in a conversation between Doyle and himself, a month or so before the shooting. In that conversation, McCambridge says he told Doyle that he had heard Doyle had been convicted for child abuse. Doyle, after initially denying the charge, admitted it was true, said he had done his time for it, and said he didn't want to hear any more. Doyle told McCambridge that "if [McCambridge] ever threw it up to him, his face again ... he'd put a bullet in [McCambridge's] frigging head."

Despite this warning, McCambridge says he raised the topic again in the van, just prior to the shooting. McCambridge testified that the argument began after leaving the bar, when McCambridge asked Doyle, who was driving, to give him a ride to his ex-wife's house. Doyle said he had to make a phone call and left the van. When he returned, Doyle said he had to go to Quincy because he had a customer for a derringer pistol. Doyle pulled the derringer out from under the seat and threw it on the dashboard. McCambridge again asked to be taken to his ex-wife's, but Doyle drove on toward Quincy. This angered McCambridge and so he told Doyle he was drunk and called Doyle a name implying that Doyle had abused a child. McCambridge testified that Doyle then pulled out a nine-millimeter Smith & Wesson from his waist band, and threatened McCambridge with it. McCambridge testified that he pushed downward on Doyle's right hand, while Doyle pushed upwards, and that he begged Doyle to put the gun down. At the same time, McCambridge says he grabbed the derringer from the dashboard. He saw Doyle cock the hammer

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of the Smith & Wesson, so he shot Doyle in the face with the derringer. McCambridge testified he had no memory of anything else until he woke up in the hospital.

According to a ballistics expert's testimony at trial, Doyle had been shot with the derringer pistol that fell out of McCambridge's clothing at the accident scene. The ballistics expert testified that the derringer needed to be manually loaded, would only bear two cartridges, and needed to be manually cocked each time the weapon was fired. He further testified that it would take between thirteen and sixteen pounds of pressure to pull the trigger, which he characterized as "a very heavy trigger pull." He also testified that he would expect a considerable flash when the gun was fired, "enough to instantaneously brighten a darkened room." The state trooper pursuing the van testified that he saw no flash or other light from the van's interior.

A forensic chemist testified at trial for the prosecution that, in her opinion, Doyle was...