Brown v. Ruane

United States Court of Appeals

For the First Circuit

No. 09-2508

TROY BROWN,

Petitioner, Appellant,

v.

PAUL RUANE,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Dennis Shedd for appellant.

Jessica V. Barnett, Assistant Attorney General, with whom

Martha Coakley, Attorney General, was on brief, for appellee.

January 5, 2011

LIPEZ, Circuit Judge. Following a jury trial in the

Massachusetts Superior Court, petitioner Troy Brown was convicted

of armed assault with intent to rob a person sixty years of age or

older. Rejecting Brown's contention that the trial court

unconstitutionally restricted his cross-examination of two

investigating police officers in contravention of the Sixth and

Fourteenth Amendments of the United States Constitution, the

Massachusetts Appeals Court affirmed Brown's conviction in an

unpublished memorandum of decision. See Commonwealth v. Brown, 857

N.E.2d 507 (unpublished table decision), 2006 WL 3392089 (Mass.

App. Ct. Nov. 24, 2006). Both the Massachusetts Supreme Judicial

Court and the United States Supreme Court denied discretionary

review. See Commonwealth v. Brown, 861 N.E.2d 28 (Mass. 2007);

Brown v. Massachusetts, 552 U.S. 834 (2007). Brown then petitioned

in federal district court for a writ of habeas corpus, contending

that the Appeals Court's analysis of his confrontation claim was

either contrary to the Supreme Court's holding in Delaware v. Van

Arsdall, 475 U.S. 673 (1986), or was an unreasonable application of

both Van Arsdall and established principles of due process. The

district court disagreed and denied the petition. After careful

consideration, we affirm.

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I.

We recite the relevant facts as set forth by the Appeals

Court, supplemented where necessary by our review of the record.1

On August 19, 2002, Daniel Lynch was assaulted by three

young men during a late night walk through the "Corky Row"

neighborhood of Fall River, Massachusetts. Lynch, who was sixty-

five years old and in poor health, was initially confronted during

his walk by Brown and a second man, Tyrone Smith. Lynch and Smith

engaged in a brief verbal altercation. Smith then struck Lynch on

the side of the head, knocking him against a fence and then onto

the street. Lynch testified that, at this point, he witnessed

Brown standing approximately three to five feet away from him,

holding a small bicycle over his head. When Brown asked Lynch

whether he had any money, Lynch replied that he did not. Lynch

attempted to leave the area, but Brown followed close behind.

Lynch also noticed a third man approaching from behind Brown.

Smith suddenly reappeared and struck Lynch again. Lynch then felt

a second blow to the top of his head that knocked him out briefly.

When Lynch regained consciousness, Brown was going through his

pockets. The assailants left after finding nothing.

1

On habeas review, we presume the correctness of the state

court's factual findings. See 28 U.S.C. § 2254(e)(1). The

petitioner does not challenge the factual basis of the Appeals

Court's decision except for a lone statement, which we discuss

infra note 7.

-3-

Lynch was interviewed later that morning by police

officer David Gouveia. At that time, Lynch described the man who

had held the bicycle and had gone through his pockets as being five

feet six inches in height, 140 pounds, with long sideburns, a

slight moustache, and a short stringy beard. Officer Gouveia

showed Lynch a book of photographs, which included one of Smith but

not one of Brown. Lynch was unable to identify anyone in the

photographs at that time. Approximately two weeks later, Officer

Gouveia showed Lynch a second photo array, this time containing

only seven photographs. From this array, Lynch identified Smith as

the man who had punched him and Brown as the man who had held the

bicycle.

Brown was arrested on September 11, and indicted on

September 25.2 At the time of his arrest, Brown was attempting to

crawl under a bed in his apartment. Brown later told police that

he had been too drunk to remember anything on the night in

question, but denied being involved in the assault.

Prior to his trial, Brown unsuccessfully moved in limine

to introduce into evidence a hearsay statement that Smith had made

to police following his arrest. Smith apparently admitted to

encountering Lynch on the night in question. He informed police,

2

Brown was indicted on two charges, but was convicted only of

armed assault with intent to rob a person sixty years of age or

older. He was acquitted of assault and battery on a person sixty

years of age or older. Smith was indicted on identical charges,

and pleaded guilty prior to Brown's trial.

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however, that he had been with a man named Cagney Bettencourt, not

Brown, at the time of the incident and that neither he nor

Bettencourt had assaulted Lynch.3 Brown wished to use Smith's

statement to impeach the credibility of Lynch's identification of

Brown from the photo array, to demonstrate the likelihood that

Bettencourt was the true culprit, and to cast doubt on the

thoroughness of the police investigation. Although the trial judge

denied Brown's motion, he ruled that defense counsel could inquire

whether the police had interviewed Smith and what action, if any,

they took as a result of that interview.

Lynch testified for the Commonwealth at the trial; he

again identified Brown as the man who had held the bicycle. He

further testified that he was sure of his identification. Brown's

trial counsel cross-examined Lynch regarding his ability to make an

accurate identification. The Commonwealth also called as witnesses

both Officer Gouveia and the officer to whom Smith had made his

statement, Officer James Smith. Brown's counsel cross-examined

Officer Gouveia regarding the discrepancy between Lynch's initial

physical description of his assailant and Brown's physical

characteristics.4 During this cross-examination, Brown's counsel

3

Smith claimed to have witnessed a person known only as

"Triz" punch Lynch. Smith was unable to identify "Triz" when shown

a photo array that included a picture of Brown.

4

Brown is six feet one inch in height. There was also no

evidence that Brown had ever displayed facial hair.

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also elicited from Officer Gouveia that Bettencourt's name had

surfaced during the investigation, and he introduced a photograph

of Bettencourt in evidence.

Notwithstanding his prior ruling, however, the trial

judge sustained hearsay objections to defense counsel's repeated

inquiry into whether Officer Gouveia's investigation of Bettencourt

began after police interviewed Smith and whether Officer Gouveia

considered Bettencourt to be a suspect during his investigation.5

The trial judge sustained similar objections to defense counsel's

inquiry into whether Officer Smith had interviewed Smith or had

occasion to show him any photographs.

Although Brown presented alibi witnesses to bolster his

misidentification defense, and although his trial counsel argued to

the jury that Bettencourt better fit the physical description of

Lynch's assailant, Brown chose not to call Smith as a witness in

his defense. As noted by the Appeals Court, "[t]rial counsel chose

not to call Smith as a witness because he was not sure that Smith

5

The trial judge held a sidebar conference following the

latter inquiry, at which the prosecutor explained that he objected

to the question because "what counsel is trying to do is trying to

invite the jury to draw the inference as to what the hearsay

statement was." The following exchange then occurred:

THE COURT: Where are you heading with this?

[DEFENSE COUNSEL]: For hearsay, simply to contradict

testimony from certainly Mr. Lynch as to the identity of

the assailant. It's not information. It's for hearsay

purposes.

THE COURT: No, sustained.

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would affirm his earlier statement to police." Brown, 2006 WL

3392089, at *2.

Brown appealed his conviction, asserting, among other

things, that the trial judge's limitation on his cross-examination

of the two officers denied him the right to confront the witnesses

against him in violation of Article XII of the Massachusetts

Declaration of Rights and the Sixth and Fourteenth Amendments to

the United States Constitution. The Appeals Court denied relief.

In so doing, that court employed a balancing test established by

the Massachusetts Supreme Judicial Court in Commonwealth v.

Kirouac, 542 N.E.2d 270, 273 (Mass. 1989), and reaffirmed in

Commonwealth v. Miles, 648 N.E.2d 719, 724 (Mass. 1995). According

to the Kirouac court:

In deciding whether a defendant's

constitutional right to cross-examine and thus

confront a witness against him has been denied

because of an unreasonable limitation of

cross-examination, a court must weigh the

materiality of the witness's direct testimony

and the degree of the restriction on

cross-examination. The determination can only

be made on a case-by-case basis.

Kirouac, 542 N.E.2d at 273.

Applying the Kirouac test to Brown's case, the Appeals

Court first noted that "testimony from Officers Smith and Gouveia

regarding their investigation of Bettencourt was marginally

relevant to the Commonwealth's case, which was based almost

entirely on Lynch's identification of the defendant." Brown, 2006

-7-

WL 3392089, at *3. The court then explained that the defendant had

been permitted ample opportunity to generate reasonable doubt about

the accuracy of Lynch's identification through unfettered cross-

examination of Lynch, extensive cross-examination of Officer

Gouveia, and defense counsel's forceful closing argument. The

court concluded that Brown had not been prejudiced by the

limitations on cross-examination and thus that his right to

confrontation had not been violated.

Brown filed a petition for a writ of habeas corpus in

federal district court in April 2008, arguing that the Kirouac test

is contrary to the clearly established rule enunciated by the

Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673 (1986), and

that, alternatively, the Appeals Court unreasonably applied the

Supreme Court's relevant Sixth and Fourteenth Amendment

jurisprudence in concluding that the restrictions on cross-

examination did not deny him the right to confront the witnesses

against him and to thereby present a complete defense. He also

contended that the Appeals Court decision contained an unreasonable

factual finding. After first rejecting the government's procedural

arguments concerning exhaustion and judicial estoppel, the district

court denied Brown's petition on the merits.6 The court agreed

6

The government contends that the petitioner's claim under

the "contrary to" prong of § 2254(d)(1) is either unexhausted or

barred by the principle of judicial estoppel because the petitioner

argued to the Appeals Court that Miles, which quotes from Kirouac,

provided the applicable legal standard and, further, treated the

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with Brown that Van Arsdall is a source of clearly established

federal law relevant to the petition, but concluded that the

Appeals Court's decision was neither contrary to nor an

unreasonable application of Van Arsdall.

II.

We review the district court's denial of habeas relief de

novo and may affirm on any ground made manifest by the record.

Pike v. Guarino, 492 F.3d 61, 69 (1st Cir. 2007). Pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a

federal court may not grant habeas relief with respect to any claim

that was adjudicated on the merits in state court unless the state

court's decision either (1) "was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States," or (2) "was

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d)(1)-(2). The instant petition implicates only the first

holding of Van Arsdall as consistent with the Kirouac test in his

petition to the Supreme Judicial Court for further appellate

review. However, we need not resolve the government's exhaustion

argument if we conclude on the merits that the denial of the

petition for habeas corpus was proper. See 28 U.S.C. § 2254(b)(2)

("An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State."). We therefore

elect to begin our analysis by addressing the substance of the

petitioner's claims.

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ground for relief: that the Appeals Court's decision was contrary

to, or involved an unreasonable application of, federal law.7

A state court decision is "contrary to" clearly

established federal law as determined by the Supreme Court if it

"contradicts the governing law set forth in the Supreme Court's

cases or confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from its precedent."

John v. Russo, 561 F.3d 88, 96 (1st Cir. 2009) (internal quotation

marks omitted) (alterations omitted). The statutory phrase

"contrary to" "suggests that the state court's decision must be

substantially different from the relevant precedent of [the

Supreme] Court." Williams v. Taylor, 529 U.S. 362, 405 (2000)

(emphasis added). By contrast, a state court adjudication involves

an "unreasonable application of" clearly established federal law if

the state court "identifies the correct governing legal principle

7

In the district court, the petitioner asserted that the

Appeals Court made an unreasonable factual determination when it

stated that Lynch described to Officer Gouveia only "two of the

three young men who attacked him." Brown, 2006 WL 3392089, at *2.

The district court rejected the claim, noting that AEDPA allows

state courts "some room for mistakes," such as imprecise factual

descriptions. See Hurtado v. Tucker, 245 F.3d 7, 12 (1st Cir.

2001). On this appeal, the petitioner maintains that the Appeals

Court erred in its factual recitation, but he explicitly disclaims

that the error rises to the level required to entitle him to relief

under the statute's second prong, § 2254(d)(2). Instead, he

suggests that the Appeals Court's misstatement merely highlights

the general unreasonableness of its decision. Accordingly, we

confine the scope of our review to the statute's first prong,

§ 2254(d)(1).

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from [the Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner's case." Id. at 413.

"Unreasonableness" is an objective standard -- one that requires

some increment of incorrectness beyond error that, though not

necessarily great, "must be great enough to make the decision

unreasonable in the independent and objective judgment of the

federal court." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.

2002) (en banc). For either analysis, "clearly established federal

law" refers to "the governing legal principle or principles set

forth by the Supreme Court at the time the state court renders its

decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A legal

principle is "clearly established" only when it is embodied in a

holding of the Supreme Court. Thaler v. Haynes, ___ U.S. ___, 130

S. Ct. 1171, 1173 (2010) (per curiam).

III.

On this appeal, the petitioner reasserts his contention

that the trial court violated his rights under the Sixth and

Fourteenth Amendments of the United States Constitution to confront

prosecution witnesses and to thereby present a complete defense.

He claims that he is entitled to habeas relief on two alternate

grounds. The petitioner's central contention is that the Kirouac

balancing test applied by the Appeals Court is contrary to the

Supreme Court's Van Arsdall decision because the Kirouac test

requires a reviewing court to weigh the materiality of a witness's

-11-

direct testimony as a factor in determining whether the

Confrontation Clause was violated, rather than as a factor in

determining whether any such violation was harmless.8 According to

the petitioner, Van Arsdall stands for the proposition that a

restriction on cross-examination violates the Confrontation Clause

whenever the proposed cross-examination would have left the jury

with "a significantly different impression of the issue for which

the evidence was offered." Therefore, he argues, the only factor

relevant to finding a constitutional violation is the effect that

the excluded testimony would have had on the jury. The petitioner

also notes that the Van Arsdall Court explicitly included "the

importance of the witness's testimony in the prosecution's case"

among the numerous factors that may be relevant to a reviewing

court's harmless error analysis, which he suggests creates a

necessary implication that witness materiality is an issue on which

the government bears the sole burden of proof. See Van Arsdall,

475 U.S. at 684.

8

The distinction is not insignificant. Under both

Massachusetts and federal law, a defendant bears the burden on both

direct and collateral review of demonstrating a constitutional

violation. Once a violation is found, the government bears the

burden of demonstrating that the error was harmless. See, e.g.,

United States v. Casas, 356 F.3d 104, 121 (1st Cir. 2004);

Commonwealth v. Depina, 922 N.E.2d 778, 788 (Mass. 2010). The

essence of the petitioner's claim, therefore, is that the Kirouac

test impermissibly burdened him with proving the materiality of the

officers' direct testimony when, in fact, it is the Commonwealth's

burden to prove that the officers' testimony was immaterial.

-12-

Alternatively, the petitioner contends that the Appeals

Court's decision was objectively unreasonable. He cites a litany

of Supreme Court cases holding that, under the Sixth and Fourteenth

Amendments, restrictions on a defendant's right to elicit relevant

defense evidence may not be imposed arbitrarily or mechanistically,

and must not be disproportionate to the purposes that the

restrictions are designed to serve. See, e.g., Michigan v. Lucas,

500 U.S. 145, 149 (1991); Chambers v. Mississippi, 410 U.S. 284,

302 (1973). The petitioner contends that the restriction in his

case was arbitrary and disproportionate to its purpose because the

precluded testimony, describing Smith's custodial statement to the

officers and aspects of the subsequent police investigation of

Bettencourt, either was not hearsay or was hearsay that bore

particular indicia of reliability. He also faults the Appeals

Court's analysis for failing to address his argument that the

excluded evidence was necessary to clarify for the jury the

relevance of the remaining misidentification evidence. He believes

that, absent testimony about Smith's statement and the subsequent

police investigation, jurors were left with the mistaken impression

that Bettencourt was suspected by police of being the third

assailant (who was never identified), rather than an alternative

suspect to Brown.9

9

In particular, the petitioner draws our attention to the

following statement made by the prosecutor during closing argument:

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A. Clearly Established Federal Law

We begin by determining whether the petitioner's

constitutional challenge in state court was governed by any clearly

established federal law. A threshold determination that no holding

of the Supreme Court required application to the factual context

presented by the petitioner's claim is dispositive in the habeas

analysis. See generally Carey v. Musladin, 549 U.S. 70, 77 (2006);

accord House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008)

("Musladin has now dispelled the uncertainty: The absence of

clearly established federal law is dispositive under

§ 2254(d)(1)."). State courts are entitled to resolve "an open

question in [Supreme Court] jurisprudence" without triggering

federal court review under AEDPA. See Musladin, 549 U.S. at 76;

cf. Renico v. Lett, ___ U.S. ___, 130 S. Ct. 1855, 1866 (2010)

("AEDPA prevents defendants -- and federal courts -- from using

federal habeas corpus review as a vehicle to second-guess the

reasonable decisions of state courts."). If Supreme Court cases

"give no clear answer to the question presented," a state court's

resolution of a constitutional question may not serve as a basis

We have this other array that somehow [defense

counsel] wants to criticize the police for going back and

showing another photo array after Mr. Brown and Mr. Smith

had been arrested. Well, there was another person there

that night. Should the police stop looking for this

third person?

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for habeas relief. Wright v. Van Patten, 552 U.S. 120, 128 (2008)

(per curiam).

The Supreme Court has recently emphasized that whether

federal law is clearly established for the purpose of the habeas

statute is not simply a function of the clarity of the particular

legal principle relied upon by a petitioner, but also of the

clarity of that principle's application to the facts of the

petitioner's case.10 It has cautioned that reviewing courts must

be careful not to improperly turn the Court's context-specific

holdings into "blanket rule[s]." See Thaler, 130 S. Ct. at 1175.

Rather, we must look for Supreme Court precedent that either

"squarely addresses the issue" in the case or that articulates

legal principles that "clearly extend" to the new factual context.

10

In the last five terms, the Supreme Court has overturned

five federal grants of habeas corpus on the ground that the cited

Supreme Court precedent had not been clearly established in the

factual context presented. See Berghuis v. Smith, ___ U.S. ___,

130 S. Ct. 1382, 1392-94 (2010) (holding that the Supreme Court's

"pathmarking decision" in Duren v. Missouri, 439 U.S. 357 (1979),

"hardly establishes -- no less 'clearly' so -- that [the

petitioner] was denied his Sixth Amendment right" on

distinguishable facts); Thaler, 130 S. Ct. at 1175 (reversing a

grant of habeas relief where "[t]he part of [the Supreme Court's

precedent] on which the Court of Appeals relied concerned a very

different problem"); Van Patten, 552 U.S. at 125 (reversing grant

of habeas where Supreme Court precedent did not "squarely

address[]" the question at issue); Schriro v. Landrigan, 550 U.S.

465, 478 (2007) (reversing grant of habeas where Supreme Court had

never addressed "a situation in which a client interferes with

counsel's efforts to present mitigating evidence"); Musladin, 549

U.S. at 77 (noting a "contrast" between existing Supreme Court

precedent involving "state-sponsored courtroom practices" and the

conduct "to which Musladin objects" involving "private-actor

courtroom conduct").

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See Van Patten, 552 U.S. at 123-125. Compare Panetti v.

Quarterman, 551 U.S. 930, 949-50 (2007) (extending precedent

establishing the "basic requirements" of due process to new factual

context), with Musladin, 549 U.S. at 77 (denying habeas petition

where no holding of the Supreme Court "required" the application of

precedent to distinguishable facts).

1. The Inapplicability of Van Arsdall as a Source of

Clearly Established Federal Law.

Petitioner's reliance on Van Arsdall as the primary legal

authority governing his confrontation claim is misplaced. Van

Arsdall involved a constitutional challenge to restrictions imposed

on a defendant's impeachment, on cross-examination, of a

prosecution witness for bias. There, the Supreme Court announced

that "a criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical form

of bias on the part of the witness, and thereby 'to expose to the

jury the facts from which jurors . . . could appropriately draw

inferences relating to the reliability of the witness.'" Van

Arsdall, 475 U.S. at 680 (alteration in original) (quoting Davis v.

Alaska, 415 U.S. 308, 318 (1974)).

Before turning to the facts of the case before it, the

Van Arsdall Court emphasized that "trial judges retain wide

latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on . . . cross-examination." Id. at 679. It

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explained that such "reasonable limits" may be justified by

concerns about, among other things, "harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that

is repetitive or only marginally relevant." Id. It also

reiterated its previous admonition that "'the Confrontation Clause

guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.'" Id. (quoting Delaware

v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). The Van

Arsdall Court nevertheless concluded that, "[b]y . . . cutting off

all questioning about an event that the State conceded had taken

place and that a jury might reasonably have found furnished the

witness a motive for favoring the prosecution in his testimony, the

court's ruling violated [Van Arsdall]'s rights secured by the

Confrontation Clause." Id. (emphasis added).

The Supreme Court's application of Van Arsdall has always

involved evaluation of restrictions on cross-examination intended

to impeach the credibility of the witness being examined.

Nonetheless, the petitioner invites us to hold that Van Arsdall

clearly extends to a restriction on his cross-examination of two

prosecution witnesses (Officer Gouveia and Officer Smith) for the

purpose of impeaching a third (Lynch). We decline the invitation.

Van Arsdall's application of its own rule was both narrow

and fact-specific. That narrow application and the decision's

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bias-specific considerations provide little guidance on how the

rule ought to apply in a case as different as the one at bar.

Indeed, the blanket rule suggested by the petitioner, under which

the Confrontation Clause is violated by any restriction on

cross-examination excluding evidence that would have left the jury

with "a significantly different impression of the issue for which

the evidence was offered," reflects the consequences of unmooring

the rule articulated in that decision from its direct impeachment

context.

Moreover, applying Van Arsdall to the facts of the

instant petition is in tension with both the internal logic of the

Van Arsdall decision and existing case law. A central premise of

the Van Arsdall decision was that "the focus of the . . . inquiry

in determining whether the confrontation right has been violated

must be on the particular witness, not on the outcome of the entire

trial," because "the focus of the Confrontation Clause is on

individual witnesses." Id. at 680. Yet the primary evidentiary

function of the testimony sought by the petitioner would have been

to impeach the identification made by Lynch, a witness other than

the one being examined. In contrast to Van Arsdall's explicit

witness-specific approach, the petitioner implores us to hold that

Van Arsdall "clearly established" that the significance to his

defense of that missed extrinsic impeachment opportunity is the

single relevant factor in finding a Confrontation Clause violation.

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However, we have previously explained that the Supreme Court's

Confrontation Clause jurisprudence left a defendant's right to

introduce extrinsic impeachment evidence as an open constitutional

question.11 See, e.g., United States v. Catalán-Roman, 585 F.3d

453, 465 (1st Cir. 2009) ("Although the ability to pursue an

impeaching line of inquiry with the introduction of extrinsic

evidence supporting that inquiry might be viewed as part and parcel

of the right to cross-examination, this circuit has yet to decide

whether the Confrontation Clause provides defendants a right to

impeach witnesses through extrinsic evidence.").

Since the rule of Van Arsdall was articulated in a case,

and applied to circumstances, much different from the circumstances

in which the petitioner now seeks to employ it, we cannot conclude

that Van Arsdall "squarely established" a "specific legal rule"

applicable to the petitioner's case. See Knowles v. Mirzayance,

___ U.S. ___, 129 S. Ct. 1411, 1419 (2009). Van Arsdall does

provide a "clearly established" federal rule for a class of cases,

but it is not the class within which the petitioner's case falls.

Therefore, the Kirouac test is not "contrary to" the rule Van

Arsdall adopted nor was Van Arsdall unreasonably applied in this

case.

11

Although not valid sources of clearly established federal

law under AEDPA, "[d]ecisions from the lower federal courts may

help inform the AEDPA analysis to the extent that they state the

clearly established federal law determined by the Supreme Court."

Aspen v. Bissonnette, 480 F.3d 571, 574 n.1 (1st Cir. 2007).

-19-

2. Clearly Established Law on the Right to Present a

Defense

As noted, the petitioner does not rely exclusively on Van

Arsdall in pursuing habeas relief. He also argues that the

restrictions on his cross-examination of Officer Gouveia and

Officer Smith impaired his right, protected by clearly established

law under the Sixth and Fourteenth Amendments, to present a

complete defense. He suggests that testimony from the officers

describing both Smith's post-arrest statement and the subsequent

police investigation of Bettencourt was needed not only to impeach

Lynch's in-court and out-of-court identifications of the

petitioner, but also to demonstrate to the jury the likelihood that

Bettencourt was the true culprit and to invite reasonable doubt

based on inadequacies in the police investigation. He therefore

challenges the objective reasonableness of the Appeals Court's

conclusion that he was not prejudiced by the restrictions on cross-

examination.

It is well established that a state's "broad latitude" to

define rules for the exclusion of evidence and to apply those rules

to criminal defendants has constitutional limits. See Clark v.

Arizona, 548 U.S. 735, 789 (2006). Evidentiary restrictions that

hinder a defendant's ability to present defense evidence can, in

some circumstances, be severe enough to violate due process. See

Chambers, 410 U.S. at 302. "Whether rooted directly in the Due

Process Clause of the Fourteenth Amendment, or in the Compulsory

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Process or Confrontation clauses of the Sixth Amendment, the

Constitution guarantees criminal defendants 'a meaningful

opportunity to present a complete defense.'"12 Crane v. Kentucky,

476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S.

479, 485 (1984)) (internal citations omitted).

The Supreme Court has described this right as "a

fundamental element of due process of law," Washington v. Texas,

388 U.S. 14, 19 (1967), which "is abridged by evidence rules that

'infring[e] upon a weighty interest of the accused' and are

'arbitrary' or 'disproportionate to the purposes they are designed

to serve.'" Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

(quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)

(alteration in original) (internal quotation marks omitted)). Even

a generally defensible rule of evidence may be applied so as to

produce an unconstitutional infringement. White v. Coplan, 399

F.3d 18, 24 (1st Cir. 2005).

It is also clear that a defendant's right to elicit

exculpatory defense evidence through cross-examination falls within

the ambit of this longstanding right. See, e.g., Chambers, 410

12

In his brief, the petitioner principally characterizes the

right to present a defense as one secured by the Confrontation

Clause. For the purpose of this appeal, it is unnecessary for us

to resolve whether the right is rooted in the Sixth Amendment and

applied to the states through the Fourteenth Amendment, or whether

it is rooted directly in the Due Process Clause of the Fourteenth

Amendment. Cf. Pike, 492 F.3d at 78 n.8. See generally United

States v. Scheffer, 523 U.S. 303, 307-08 & n.3 (1998).

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U.S. at 302 (holding that a defendant was denied a meaningful

opportunity to present a complete defense where he was allowed

neither to cross-examine an alternative suspect in the case nor to

call witnesses for the purpose of impeaching that suspect's

testimony); Catalán-Roman, 585 F.3d at 465-66 (evaluating a

defendant's right to present extrinsic impeachment evidence as a

due process claim where the defendant's failure to address adverse

precedent had waived his argument under the Confrontation Clause).

Despite the generality of these principles, "AEDPA does

not 'require state and federal courts to wait for some nearly

identical factual pattern before a legal rule must be applied.'"

Panetti, 551 U.S. at 953 (quoting Musladin, 549 U.S. at 81

(Kennedy, J., concurring in judgment)). Nevertheless, in order to

be entitled to relief, the petitioner must meet his burden of

demonstrating that the Appeals Court's decision reflects an

unreasonable application of the clearly established "arbitrary and

disproportionate" standard to the facts of his case.

B. The Appeals Court's Application of Federal Law

1. Deference Under § 2254(d)(1)

In evaluating a state court's application of federal law,

our inquiry "is not how well reasoned the state court decision is,

but whether the outcome is reasonable." Hurtado v. Tucker, 245

F.3d 7, 20 (1st Cir. 2001). In this regard, "the most important

point is that an unreasonable application of federal law is

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different from an incorrect application of federal law." Williams,

529 U.S. at 410. Moreover, the Supreme Court has explained that

"evaluating whether a rule application was unreasonable requires

considering the rule's specificity. The more general the rule, the

more leeway courts have in reaching outcomes in case-by-case

determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Our own decisions involving a defendant's constitutional

right to present a defense demonstrate the generality of the right

and the substantial element of judgment required of trial courts in

excluding defense evidence. See, e.g., Dolinger v. Hall, 302 F.3d

5, 11 (1st Cir. 2002) (affirming denial of habeas petition where

the exclusion of evidence still afforded the defendant "an adequate

opportunity" to challenge the witness's bias in other ways); United

States v. Cunan, 152 F.3d 29, 38-39 (1st Cir. 1998) (finding no

constitutional violation in the exclusion of hearsay evidence where

"sufficient evidence" of the defense theory remained); cf. United

States v. Holden, 557 F.3d 698, 704 (6th Cir. 2009) ("The key issue

is whether the jury had enough information to assess the defense's

theory of the case despite the limits placed on

cross-examination."). The Appeals Court's adjudication of the

petitioner's claim is therefore entitled to substantial deference

under AEDPA. See O'Laughlin v. O'Brien, 568 F.3d 287, 299 (1st

Cir. 2009) (noting that habeas review involves layering the

deference federal courts owe to state courts on top of the

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underlying standard governing the constitutional right asserted);

cf. Renico, 130 S. Ct. at 1865 (describing "the dual layers of

deference required by AEDPA" in cases where the standard applied by

a state appellate court is deferential to the trial court). We may

only upset the Appeals Court's decision if we conclude that it

falls outside of the "broader range of reasonable judgements" that

accompanies the application of so general a legal test. See Locke

v. Cattell, 476 F.3d 46, 51 (1st Cir. 2007).

Here, the Appeals Court concluded that, in light of the

defendant's numerous other avenues for advancing his

misidentification defense, "the restrictions placed upon the

defendant's cross-examination of Officers Smith and Gouveia did not

prejudice the defendant." Brown, 2006 WL 3392089, at *3. We

cannot say that outcome was unreasonable.

2. Restrictions on the Presentation of Evidence

The petitioner argues that the trial court imposed

"arbitrary and disproportionate" restrictions on his right to

present relevant evidence in his defense. First, he suggests that

the exclusion of Smith's statement on hearsay grounds was

"disproportionate to the ends that [the hearsay rule is] asserted

to promote," see Holmes, 547 U.S. at 321, because the statement

bears particular indicia of reliability that mitigated traditional

hearsay concerns. Second, he suggests that critical defense

evidence was arbitrarily excluded when the trial court exceeded the

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scope of its pre-trial ruling and sustained objections to questions

by defense counsel about whether Officer Gouveia initiated his

investigation of Bettencourt following a police interview of Smith,

whether Officer Gouveia considered Smith a suspect, and whether

Officer Smith interviewed or had occasion to show photographs to

Smith. The petitioner argues that the answers to these questions

did not depend on the truth of Smith's out-of-court statement, and

were admissible under state law as evidence of the police

investigation (or lack thereof) into Bettencourt as an alternative

suspect. See generally Commonwealth v. Cordle, 537 N.E.2d 130, 137

(Mass. 1989).

Smith's post-arrest statement implicating Bettencourt in

the assault is prototypical hearsay evidence. See Fed. R. Evid.

801(c). With rare exception, a trial court's exclusion of hearsay

evidence does not offend the Constitution. See Montana v.

Egelhoff, 518 U.S. 37, 42 (1996) (plurality opinion) (describing

the hearsay rule as "familiar and unquestionably constitutional");

Chambers, 410 U.S. at 298 ("The hearsay rule, which has long been

recognized and respected by virtually every State, is based on

experience and grounded in the notion that untrustworthy evidence

should not be presented to the triers of fact.").

The Appeals Court was presented with, and expressly

rejected, the petitioner's argument that the statement bore

particular indicia of reliability. On direct appeal, the

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petitioner asserted that Smith's statement was reliable because it

was self-incriminatory, see generally Chambers, 410 U.S. at 300-01,

and because it tended to show that another person committed the

crime, see generally Commonwealth v. O'Brien, 736 N.E.2d 841, 851

(Mass. 2000) (explaining that, under Massachusetts law, hearsay

evidence "may be admitted, in the judge's discretion, to show that

a third party might have committed the crime"). The Appeals Court

concluded that the trial court did not abuse its discretion in

excluding Smith's statement because the statement was not "in a

very real sense self-incriminatory" (since it was not made by

Bettencourt and denied both Smith and Bettencourt's participation

in the assault) and because it did not contain sufficiently

substantial "connecting links" between Bettencourt and the assault.

See Brown, 2006 WL 3392089, at *4-*5 (internal quotation marks

omitted). We see nothing unreasonable about the Appeals Court's

determination that the hearsay rule was properly applied to exclude

Smith's statement.

Turning to the other limitations placed on the

petitioner's cross-examination of Officer Smith and Officer Gouveia

regarding their investigation of Bettencourt, we disagree with the

petitioner's contention that the Appeals Court unreasonably failed

to find that the restrictions imposed in his case arbitrarily

infringed on his ability to present a complete defense. Even

assuming that some of the excluded testimony was otherwise proper

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and admissible for a non-hearsay purpose, which we need not decide,

we have been clear that "not every ad hoc mistake in applying state

evidence rules . . . should be called a violation of due process;

otherwise every significant state court error in excluding evidence

offered by the defendant would be a basis for undoing the

conviction." Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).

As we have noted elsewhere, "the Supreme Court has rarely

overturned state convictions because evidence was excluded and has

in recent years made clear that only in extreme cases" will such

claims succeed. O'Brien, 453 F.3d at 20 (alterations omitted)

(internal quotation marks omitted); see also Ellsworth v. Warden,

333 F.3d 1, 7 (1st Cir. 2003) (en banc) (describing constitutional

challenges to restrictions on cross-examination as "tenable only

where the restriction is manifestly unreasonable or overbroad").

Provided that a defendant retains an adequate opportunity to

present his theory of the case, the Supreme Court has made clear

that a defendant's right to present relevant evidence "'may, in

appropriate cases, bow to accommodate other legitimate interests in

the criminal trial process.'" Lucas, 500 U.S. at 149 (quoting Rock

v. Arkansas, 483 U.S. 44, 55 (1987)).

As the Appeals Court recognized, despite the exclusion of

Smith's statement by the trial court, the petitioner was permitted

to establish through his cross-examination of Officer Gouveia that

Bettencourt's name had surfaced during the police investigation of

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the assault, that Officer Gouveia had attempted to locate

Bettencourt, and that Bettencourt better fit Lynch's physical

description of his assailant. The defendant was also provided a

full opportunity to cross-examine Lynch, the Commonwealth's most

important witness, and declined to exercise his right to call Smith

as a witness to his own statements. In light of these substantial

other opportunities to call the jury's attention to the likelihood

that Bettencourt was the true culprit and that the police

investigation of Bettencourt was suspect, we cannot say on this

record that the Appeals Court's conclusion that the petitioner was

not prejudiced by the preclusion of additional testimony from the

officers regarding the police investigation of Bettencourt was an

unreasonable application of clearly established law on the right to

present a defense.

Affirmed.

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