O'Brien v. Dubois

United States Court of Appeals

For the First Circuit

No. 97-1979

ROBERT O'BRIEN,

Petitioner, Appellant,

v.

LARRY E. DUBOIS,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Robert L. Sheketoff, with whom Sheketoff & Homan was on brief,

for appellant.

William J. Meade, Assistant Attorney General, Commonwealth of

Massachusetts, with whom Scott Harshbarger, Attorney General, was

on brief, for appellee.

May 26, 1998

SELYA, Circuit Judge. In this pathbreaking case,

petitioner-appellant Robert O'Brien, who assails his Massachusetts

manslaughter conviction on the ground that the trial court

unconstitutionally restricted recross-examination, prays for a writ

of habeas corpus. Evaluating the petitioner's claim requires us to

appraise and interpret the standard of review provision

incorporated into 28 U.S.C. 2254(d)(1) by the Antiterrorism and

Effective Death Penalty Act of 1996. After developing and applying

an appropriate analytic framework, we uphold the district court's

denial of habeas relief.

I. BACKGROUND

Our factual recitation focuses primarily on the trial

testimony and rulings that lie at the epicenter of this habeas

proceeding. We direct readers who yearn for a more complete

narrative to the opinion of the Massachusetts Supreme Judicial

Court (SJC) affirming the underlying conviction. See Commonwealthv. O'Brien, 645 N.E.2d 1170, 1171-74 (Mass. 1995).

On March 29, 1989, a state jury convicted the petitioner

of the involuntary manslaughter of Sean Patrick Shanahan, a five-

month-old infant. The criminal case arose after Sean's mother,

Carol Shanahan, found the child dead in his crib and an autopsy

indicated that Sean perished as a result of blunt head trauma.

In the relevant time frame, the petitioner lived with

Shanahan and her three children (Sean included). Sean's parentage

was an ongoing source of friction in what charitably can be called

a stormy relationship. The record evinces that the petitioner

singled out Sean for frequent scoldings and occasional physical

abuse.

On the morning of October 2, 1987, Shanahan left the

couple's apartment to report for work. She returned home at about

4:00 p.m., accompanied by her eight-year-old sister, Darlene.

Shanahan testified that Sean awoke while she was preparing the

evening meal, and that he appeared normal except for a runny nose.

After dinner, the petitioner ordered Shanahan to purchase some

marijuana for him. Shanahan absented herself from the apartment

for approximately fifteen minutes to perform this errand. The

petitioner remained on the premises with Shanahan's sister and

three children.

What happened next is hotly disputed. The prosecution

relied on Darlene as its star witness at trial, and we summarize

her account of the pertinent events: During Shanahan's absence,

Sean awoke and began crying. The petitioner picked him up and

headed for the kitchen. Sean vomited. The petitioner became

angry, hurled Sean into the air, and unsuccessfully tried to catch

him. Sean struck the floor headfirst. The petitioner then

restored the crying child to his crib and advised Darlene not to

discuss what had happened lest he "get someone after [her]." When

Shanahan returned, no one mentioned the incident.

There is little disagreement as to subsequent events.

Later that evening, Shanahan noticed that Sean's face was puffy,

his eyes runny, and his breathing strained. These symptoms

persisted the next morning, prompting Shanahan to leave Sean in his

crib for the day. That night, Shanahan moved toward Sean's room to

check his condition, but the petitioner headed her off and entered

the room first. After a few seconds, he emerged, pointed toward

the crib, and fled the apartment. Shanahan approached the crib and

found the child dead.

The state police investigation immediately focused on the

petitioner. At first, he denied any involvement with Sean's death,

but, upon requestioning, he changed his tune. This time, the

petitioner claimed that, on October 2, he had slipped while

carrying Sean, and that Sean's head and neck had struck the floor

during the ensuing fall. The investigating officer consulted with

the pathologist who performed the autopsy and ascertained that

Sean's injuries could not have occurred in this manner. Confronted

with the pathologist's statement, the petitioner agreed to tell the

investigator "what really happened." He then spun a new yarn:

while playing with Sean on the morning of October 2, he had placed

his hands under Sean's legs, held the child by the hands, and tried

to flip him but Sean slipped from his grasp and the child's head

hit the floor.

At trial, the prosecution's theory of the case tracked

Darlene's account of how Sean's injuries transpired. To refute

this testimony and buttress his (most recent) version of the events

surrounding Sean's death, the petitioner strove to show that Sean

exhibited symptoms of a head injury prior to the time that Darlene

claimed to have seen the petitioner heave the baby into the air.

Given the nature of this defense, the presence of so-called cold

symptoms before dinner on October 2 symptoms that the petitioner

insists were in fact indicia of cranial trauma took on vital

importance.

In the course of a vigorous cross-examination, Shanahan

testified that she did not see Sean from the time she left for work

on October 2 until late in the afternoon, and that he had a runny

nose but no other cold symptoms at that juncture. She first

noticed that Sean was not feeling well later that evening. The

petitioner's counsel called Shanahan's attention to a statement

that she gave to the police on October 7, in which she reported

that, upon arriving at the apartment with Darlene, she noticed that

Sean displayed some other symptoms (like hoarseness and wheezy

breathing). Shanahan replied that she could not remember making

these specific comments.

The prosecution, in an attempt to account for any

possible discrepancies between Shanahan's trial testimony and her

pretrial statement, elicited on redirect examination that she had

been extremely upset when she gave the October 7 statement because

Sean's funeral had occurred the day before. On recross-

examination, defense counsel sought to ask Shanahan about another

statement that she penned some days after the funeral in

preparation for a meeting with a prosecutor (and in which,

according to the petitioner's attorney, Shanahan again recounted

that she observed Sean suffering from cold symptoms as soon as she

and Darlene returned home). The prosecution objected on the ground

that the proposed questioning exceeded the scope of redirect

examination. The petitioner's counsel countered that a reference

to the second statement was proper because it impeached Shanahan's

explanation for the inconsistency between her trial testimony and

her October 7 account. The trial judge sustained the objection,

finding that the contents of the second statement (which had not

been admitted into evidence) did not address any matter raised for

the first time on redirect examination.

The jury convicted the petitioner of involuntary

manslaughter. After an intermediate appellate court rejected the

petitioner's appeal, the SJC, in a four-to-three decision, held

that the imposed limitation on recross-examination did not

transgress the Confrontation Clause. See O'Brien, 645 N.E.2d at

1174.

On July 15, 1996, the petitioner filed an application for

habeas relief in the United States District Court for the District

of Massachusetts. Judge Woodlock recognized that the new habeas

review standards contained in the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(codified in scattered sections of 28 U.S.C.) (AEDPA), governed the

resolution of the petitioner's case. See Lindh v. Murphy, 117 S.

Ct. 2059, 2063 (1997); Rodriguez v. Superintendent, F.3d ,

(1st Cir. 1998) [No. 97-8068, slip op. at 4]. Applying AEDPA's

standard of review provision, 28 U.S.C. 2254(d)(1) (Supp. 1996),

Judge Woodlock denied relief. He then issued a certificate of

appealability, and we followed suit. See 28 U.S.C. 2253(c)(1).

II. ANALYSIS

While the substance of the petitioner's claim awaits, we

must interpret what is perhaps the most fundamental modification to

habeas corpus jurisprudence wrought by AEDPA the fashioning of a

neoteric standard that a federal habeas court must use when

assessing a state court's adjudication of a criminal defendant's

assertions of constitutional error.

AEDPA instructs federal courts not to grant a writ of

habeas corpus at the behest of a state prisoner unless the

underlying state adjudication:

(1) resulted in a decision that 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) resulted in a decision that 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). AEDPA is hardly a model of clarity, seeLindh, 117 S. Ct. at 2068 (observing that "in a world of silk

purses and pigs' ears, [AEDPA] is not a silk purse of the art of

statutory drafting"), and its standard of review provision is far

from self-explicating. The provision poses particular difficulties

in determining the appropriate mode of analysis that a federal

court should pursue under subsection (1) difficulties that we

encounter here.

A.

Before turning to our central interpretive task, we deem

it advisable to clear some of the statutory underbrush. Prior to

AEDPA's passage, a federal court's exercise of habeas corpus

jurisdiction did not require that it pay any special heed to the

underlying state court decision. See, e.g., Brown v. Allen, 344

U.S. 443, 458 (1953) (remarking that the habeas court treats the

state court decision as nothing more than "the conclusion of a

court of last resort of another jurisdiction"); Scarpa v. Dubois,

38 F.3d 1, 9 (1st Cir. 1994) (similar). In contrast, the AEDPA

amendments to section 2254 exalt the role that a state court's

decision plays in a habeas proceeding by specifically directing the

habeas court to make the state court decision the cynosure of

federal review. See James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure 30.2c, at 305 (Supp. 1997). Only

if that decision deviates from the paradigm described in section

2254(d) can a habeas court grant relief.

In terms, section 2254(d)(1) limits the benchmark

precedent against which a habeas court may measure a state court

decision to "clearly established Federal law, as determined by the

Supreme Court of the United States." Thus, even if lower federal

court decisions support the petitioner's position or adumbrate the

emergence of a rule favorable to him, the writ cannot issue unless

the state court decision contravenes, or involves an unreasonable

application of, extant Supreme Court jurisprudence. See Sweeney v.

Parke, 113 F.3d 716, 718 (7th Cir. 1997); Moore v. Calderon, 108

F.3d 261, 264-65 (9th Cir.), cert. denied, 117 S. Ct. 2497 (1997);

Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir. 1997). This is

not to say that the jurisprudence of inferior federal courts is

entirely irrelevant in the modern habeas milieu; the decisions of

such tribunals may very well achieve decretory significance in

determining whether a state court's "application of . . . clearly

established Federal law, as determined by the Supreme Court of the

United States," is reasonable. 28 U.S.C. 2254(d)(1). Withal,

this role is circumscribed and cannot be scripted to countenance

expedient circumvention of AEDPA's express prohibition on grounding

habeas relief in rules created by the lower federal courts.

B.

Preliminaries aside, the principal interpretive question

posed by this case can be succinctly stated: What does it mean for

a state adjudication to be "contrary to" or to involve "an

unreasonable application of" clearly established Supreme Court law?

Embedded in the resolution of this question is an issue of

considerable constitutional import: the degree, if any, to which

AEDPA infringes on a federal habeas court's ability independently

to interpret federal law (and, particularly, federal constitutional

doctrine). Courts and commentators have offered several possible

interpretations of section 2254(d)(1), ranging from utter

capitulation that is, a unitary standard of deference to a state

court's reasonable elucidations and applications of constitutional

principles in individual cases, see, e.g., Perez v. Marshall, 946

F. Supp. 1521, 1532-33 (S.D. Cal. 1996), appeal denied, 121 F.3d

716 (9th Cir. 1997) (table) to a middle-of-the-road approach

that is, a bifurcated standard that applies the "contrary to"

language to issues of law and the "unreasonable application"

language to mixed questions, see, e.g., Neelley v. Nagle, 138 F.3d

917, 924 (11th Cir. 1998); Drinkard v. Johnson, 97 F.3d 751, 767-68

(5th Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997) to a

minimalist approach, urged by some academics, that clings closely

to the past that is, a focus-shifting standard that construes

AEDPA as merely directing attention initially to the state court's

decision but otherwise leaving the habeas court free to grant the

writ whenever it finds a petitioner's claim meritorious, see, e.g.,

Larry Yackle, A Primer on the New Habeas Corpus Statute, 44 Buff.

L. Rev. 381, 412 (1996). We are not fully persuaded by any of

these multifarious formulations.

The first formulation a standard of across-the-board

deference portends a serious constitutional conflict. If, under

section 2254(d)(1), a federal court must "defer" to a state court's

determinations anent federal law, AEDPA may intrude impermissibly

upon the federal courts' Article III power "not merely to rule on

cases, but to decide them." Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 218-19 (1995) (emphasis omitted). This concern is enough

in itself to warrant favoring some other, equally plausible

interpretation. See Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988);

United States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994).

We hasten to add, however, that this constitutional

tension is not the sole reason for rejecting uniform deference.

AEDPA's legislative history, especially the dialogue during floor

debates, indicates beyond peradventure that Congress did not intend

to strip federal courts of their authority independently to assess

the merits of federal questions raised in habeas petitions. SeeGreen v. French, F.3d , (4th Cir. 1998) [1998 WL 237506,

at *8]; Liebman & Hertz, supra, at 308 n.32 (cataloguing various

statements); see also Yackle, supra, at 422-23 (observing that

congressional proponents of a rule of deference explicitly

abandoned this position to secure passage of habeas reform). These

floor statements are wholly consistent with AEDPA's statutory text,

which contains no clearcut command that habeas courts "defer" to

state court decisions. This consistency imbues the floor

statements with interpretive significance. See Brock v. Pierce

County, 476 U.S. 253, 263 (1986) (holding that floor statements are

valid indicators of congressional intent to the extent that they

"are consistent with the statutory language"); cf. Regan v. Wald,

468 U.S. 222, 237 (1984) (observing that floor colloquies cannot

serve to alter unambiguous statutory language). In the same vein,

the Senate specifically rejected a proposal that would have given

state court decisions res judicata effect in federal habeas

proceedings. See 141 Cong. Rec. S7849 (daily ed. June 7, 1995).

The second formulation a bifurcated standard championed

by the Fifth and Eleventh Circuits reads too much into the text

of the statute. Section 2254(d)(1) simply does not speak of

"questions of law" or "mixed questions of law and fact." Adherents

of this approach excuse their embroidery of the statute's text,

saying that it is fair to assume that Congress had this division in

mind because prior habeas jurisprudence fleetingly suggested such

a distinction. We think that this blithe assumption is

unwarranted. At best, the Court's pre-AEDPA signals on this point

are mixed. Compare Wright v. West, 505 U.S. 277, 294 (1992)

(plurality opinion suggesting distinction) with Thompson v.

Keohane, 116 S. Ct. 457, 464 (1995) (observing that mixed questions

of law and fact are treated as legal questions for purposes of

habeas review). In all events, courts should tred gingerly before

inserting words into a statute's text, see Water Quality Ass'n v.

United States, 795 F.2d 1303, 1309 (7th Cir. 1986), and the caution

light glows with particular brilliance here. Common sense suggests

that, had Congress desired to adopt this highly specific taxonomy,

it could and would have drafted AEDPA in more explicit terms. SeeGreen, F.3d at [1998 WL 237506, at *3-4] (noting that the

terms "contrary to" and "unreasonable application of" are not

amenable to precise definitional distinction).

Were this not enough reason to shun the bifurcated

approach, AEDPA's legislative history supplies the sockdolager.

The House of Representatives proposed a formulation closely akin to

the bifurcated approach, but Congress rejected it. It would be

unseemly and wrong for a court to scavenge discarded language

from the legislative scrap heap and graft such language onto the

version of the bill that Congress ultimately enacted. See Loncharv. Thomas, 116 S. Ct. 1293, 1300 (1996) (avoiding a reading that

would have imposed a requirement in the habeas context that

Congress "rejected, by removing [the requirement] from the draft

Rule" (emphasis in original)); see also Rhode Island v.

Narragansett Indian Tribe, 19 F.3d 685, 700 (1st Cir. 1994) ("When

Congress includes limiting language in an early version of proposed

legislation, and then rewrites the bill prior to enactment so as to

scrap the limitation, the standard presumption is that Congress

intended the proviso to operate without limitation."). Thus, in

light of the documented legislative rebuff, the bifurcated approach

fails.

The third formulation a focus-shifting approach

suffers from a different, but equally debilitating infirmity. The

argument in support of the approach holds that the disjunctive

phrasing of section 2254(d)(1), literally read, furnishes habeas

petitioners with a choice to seek review of their convictions under

either the "unreasonable application" clause or the "contrary to"

clause. This interpretation effectively reads the "unreasonable

application" language out of the statute, for that language sounds

much more tolerant of state courts' rulings than does the "contrary

to" language, and, thus, no rational petitioner would opt for it in

practice. See Drinkard, 97 F.3d at 767; see also Sharad Sushil

Khandelwal, Note, The Path to Habeas Corpus Narrows: Interpreting

28 U.S.C. 2254(d)(1), 96 Mich. L. Rev. 434, 447 (1997). Indeed,

proponents of the focus-shifting approach unabashedly admit that

their formulation nullifies the statute's "unreasonable

application" language. See Mark Tushnet & Larry Yackle, Symbolic

Statutes and Real Laws: The Pathologies of the Antiterrorism and

Effective Death Penalty Act and the Prison Litigation Reform Act,

47 Duke L.J. 1, 44 (1997).

The minimalist focus-shifting approach substitutes the

proponents' policy choices for the legislative will, and is

therefore unacceptable. Statutory interpretation is not a game

designed to find linguistic loopholes as a means to subverting

Congress's discerned intentions. Rather than reading words out of

a statute, courts should strive to give every word in a statute

meaning and effect. See United States v. Nordic Village, Inc., 503

U.S. 30, 36 (1992); United States v. Ven-Fuel, Inc. 758 F.2d 741,

751-52 (1st Cir. 1985). So it is here: we must interpret section

2254(d)(1) in such a way as to give purpose to both of its clauses.

Time often lends perspective. Given the opportunity to

study AEDPA and to digest what other courts and commentators have

written, we believe that a better reading of the statute's standard

of review provision is available. Although AEDPA did not codify

the Teague approach to habeas review wholesale, see Rodriguez,

F.3d at [slip op. at 11], the amendments to section 2254(d)(1)

plainly embrace one of Teague's primary goals. Teague taught that,

apart from the Supreme Court, federal habeas courts ought not act

as innovators in the field of criminal procedure, thereby upsetting

state convictions because state courts were not prescient and thus

failed to comply with federal law that did not exist at the time

they ruled. See Gray v. Netherland, 116 S. Ct. 2074, 2083 (1996);

Saffle v. Parks, 494 U.S. 484, 488 (1990). Congress chose to

perpetuate this view by codifying in section 2254(d)(1) a sort of

choice-of-law provision that restricts the armamentarium of legal

rules available to a federal habeas court in evaluating a state

court judgment. See Green, F.3d at [1998 WL 237506, at

*8]. This approach closely emulates Teague. See Wright, 505 U.S.

at 303-05 (O'Connor, J., concurring); see also Hogan v. Hanks, 97

F.3d 189, 192 (7th Cir. 1996) (drawing comparisons between Teague's

and AEDPA's views of the appropriate role of a federal habeas

court), cert. denied, 117 S. Ct. 1439 (1997); Note, Rewriting the

Great Writ: Standards of Review for Habeas Corpus Under the New 28

U.S.C. 2254, 110 Harv. L. Rev. 1868, 1883 (1997) (similar).

To be sure, the symmetry between Teague and AEDPA is not

perfect. After all, section 2254(d)(1)'s precedent-limiting aspect

functions more strictly than did Teague's in that it confines the

set of relevant rules to those "clearly established by the Supreme

Court," whereas Teague tolerated a broader compass. See, e.g.,

Ciak v. United States, 59 F.3d 296, 302-03 (2d Cir. 1995) (holding

that Teague's "new rule" ban does not proscribe application of a

rule well-established under circuit precedent, even if Supreme

Court jurisprudence contains no precise analog). Nonetheless, the

general approach to habeas review exhibited by Teague and AEDPA is

quite similar.

This understanding leads us to adopt an analytic

framework that animates section 2254(d)(1)'s directive that a

federal habeas court issue the writ when a state court produced "a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States." Our interpretation yields

a comfortable fit with both the statutory language and the

legislative history, and minimizes constitutional concerns. A

federal habeas court charged to weigh a state court decision must

undertake an independent two-step analysis of that decision.

First, the habeas court asks whether the Supreme Court has

prescribed a rule that governs the petitioner's claim. If so, the

habeas court gauges whether the state court decision is "contrary

to" the governing rule. In the absence of a governing rule, the

"contrary to" clause drops from the equation and the habeas court

takes the second step. At this stage, the habeas court determines

whether the state court's use of (or failure to use) existing law

in deciding the petitioner's claim involved an "unreasonable

application" of Supreme Court precedent. See Liebman & Hertz,

supra, 30.2c, at 310. Ironically, it is the "clearly

established" qualifier that will present the most difficulty when

applying this framework to particular cases. In this regard, the

chief question is how specific a rule must be to qualify as

dispositive, thus triggering review under the "contrary to" clause.

This type of inquiry is hardly foreign to federal judges; most

notably, it lurks in both the jurisprudence of the qualified

immunity doctrine, see, e.g., Anderson v. Creighton, 483 U.S. 635,

639-40 (1987), and in the Teague refinements to habeas review, see,

e.g., Gray, 116 S. Ct. at 2083-84; Fern v. Gramley, 99 F.3d 255,

258 (7th Cir. 1996).

We deem the qualified immunity concept of "clearly

established" a siren's call for purposes of fleshing out section

2254(d)(1); the invitation is enchanting, but the consequences of

acceptance are potentially disagreeable. The judge-made qualified

immunity doctrine strikes a balance between remedying

constitutional violations and unduly hindering state actors'

abilities to perform their jobs on a day-to-day basis by shielding

them from liability for money damages unless their conduct

transgresses the most firmly settled constitutional norms. SeeRyder v. United States, 515 U.S. 177, 185 (1995); Harlow v.

Fitzgerald, 457 U.S. 800, 814 (1982). In contrast, state judges do

not face personal liability for erroneous constitutional decisions

a bruised ego is not the functional equivalent of a monetary

award. More importantly, the legislatively enacted AEDPA standard

is not designed to strike a balance between such values, but to

provide a means for testing the conformity of a state court's

decision to the requirements of federal law. In light of these

salient differences, it follows that a rule need not be quite as

clear or a precedent as factually specific to rate review under the

"contrary to" clause of section 2254(d)(1) as it must be to hold a

state actor liable for damages under section 1983. See Evan Tsen

Lee, Section 2254(d) of the New Habeas Statute: An (Opinionated)

User's Manual, 51 Vand. L. Rev. 103, 127-29 (1998); Tushnet &

Yackle, supra, at 43 n.219. To avoid reducing the AEDPA standard

to a rubber stamp, the term "clearly established," as used by

Congress in section 2254(d)(1), must cut a wider swath.

The Teague line of cases provides more helpful guidance.

Drawing on Teague, we hold that an affirmative answer to the first

section 2254(d)(1) inquiry whether the Supreme Court has

prescribed a rule that governs the petitioner's claim requires

something more than a recognition that the Supreme Court has

articulated a general standard that covers the claim. To obtain

relief at this stage, a habeas petitioner must show that Supreme

Court precedent requires an outcome contrary to that reached by the

relevant state court. Cf. Neelley, 138 F.3d at 923-24.

We caution that this criterion should not be applied in

too rigid a manner. A petitioner need not point a habeas court to

a factually identical precedent. Oftentimes, Supreme Court

holdings are "general" in the sense that they erect a framework

specifically intended for application to variant factual

situations. These rules sufficiently shape the contours of an

appropriate analysis of a claim of constitutional error to merit

review of a state court's decision under section 2254(d)(1)'s

"contrary to" prong. Not coincidentally, the Court's pre-AEDPA

habeas case law employed this approach in conducting Teague "new

rule" inquiries, see Wright, 505 U.S. at 309 (Kennedy, J.,

concurring) ("Where the beginning point is a rule . . . designed

for the specific purpose of evaluating a myriad of factual

contexts, it will be the infrequent case that yields a result so

novel that it forges a new rule, one not dictated by precedent."),

and other federal courts have followed this praxis (wisely, we

believe) when construing section 2254(d)(1), see, e.g., Neelley,

138 F.3d at 923-24; Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir.

1996), cert. denied, 117 S. Ct. 1329 (1997).

We recognize that determining whether "contrary to"

review is appropriate will prove difficult in some cases. Still,

the key inquiry, at bottom, is whether a Supreme Court rule by

virtue of its factual similarity (though not necessarily

identicality) or its distillation of general federal law precepts

into a channeled mode of analysis specifically intended for

application to variant factual situations can fairly be said to

require a particular result in a particular case.

If no Supreme Court precedent is dispositive of a

petitioner's claim, then, a fortiori, there is no specific rule to

which the state court's decision can be "contrary." In such

circumstances, a federal habeas court then determines whether the

state court decision reflects an unreasonable application of

clearly established Supreme Court jurisprudence. This reduces to

a question of whether the state court's derivation of a case-

specific rule from the Court's generally relevant jurisprudence

appears objectively reasonable.

To the extent that inferior federal courts have decided

factually similar cases, reference to those decisions is

appropriate in assessing the reasonableness vel non of the state

court's treatment of the contested issue. We think it is pellucid,

however, that the "unreasonable application" clause does not

empower a habeas court to grant the writ merely because it

disagrees with the state court's decision, or because, left to its

own devices, it would have reached a different result. Rather, for

the writ to issue, the state court decision must be so offensive to

existing precedent, so devoid of record support, or so arbitrary,

as to indicate that it is outside the universe of plausible,

credible outcomes. See Hall v. Washington, 106 F.3d 742, 748-49

(7th Cir. 1997); cf. Butler v. McKellar, 494 U.S. 407, 414 (1990)

(noting that the Teague rule evolved in an effort to uphold a state

court's "reasonable, good faith interpretations of existing

precedents").

We realize that our distillation of section 2254(d)(1)'s

two-step analytic framework is at odds with decisions reached by

other courts. In the final analysis, however, we are duty bound

in the absence of controlling precedent to exercise independent

judgment, and we have done so. We are confident that our work

product gives effect to all parts of the statutory provision,

comports with Congress's vision of habeas reform, and avoids the

artificial distinctions and syntactical pitfalls present in the

variant interpretations of the statute proffered by other courts

and commentators. Moreover, by eschewing undue deference to state

courts' decisions on federal law matters, our synthesis avoids an

interpretation that invites constitutional challenge.

III. APPLICATION OF THE STANDARD

Using the analytic framework developed above, we evaluate

the claim that the trial judge's limitation on the scope of

recross-examination infracted the petitioner's constitutional

rights. To supply context, we briefly recapitulate the events

underlying this challenge. On redirect the prosecution first

elicited testimony that Shanahan was upset when she gave the police

a statement that contradicted her trial testimony in certain

respects. On recross, the petitioner's lawyer sought to question

Shanahan about the contents of a separate statement. Defense

counsel viewed this later statement as consistent with Shanahan's

original account to the police, inconsistent with her trial

testimony, and made at a time when the ostensible cause for her

discombobulation had abated. The trial judge ruled that questions

about the content of the second statement were beyond the scope of

redirect and therefore off-limits in recross.

We begin with bedrock. The right of confrontation and

cross-examination "is an essential and fundamental requirement for

the kind of fair trial which is this country's constitutional

goal." Pointer v. Texas, 380 U.S. 400, 405 (1965). Supreme Court

jurisprudence makes it abundantly clear that the Confrontation

Clause effectuates this right by guaranteeing a criminal defendant

an opportunity to cross-examine witnesses effectively. See Davisv. Alaska, 415 U.S. 308, 315-16 (1974). Still, the right of cross-

examination is not unfettered. See Delaware v. Fensterer, 474

U.S. 15, 20 (1985) (emphasizing that a defendant does not have the

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

to whatever extent, the defense might wish"). When contemplating

restrictions on cross-examination, a trial court must strike a

constitutionally acceptable balance: although the court possesses

considerable discretion to preclude repetitive, irrelevant,

cumulative, or harassing interrogation, see Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986), it must not narrow the scope in

such a way as to preclude a defendant either from meaningfully

"delv[ing] into the witness' story to test the witness' perceptions

and memory" or from impeaching the witness, Davis, 415 U.S. at 316.

We discern no rule in the Court's Confrontation Clause

jurisprudence that governs the petitioner's claim of error. None

of the Court's pronouncements flesh out its very general treatment

of cross-examination rights, either by way of a more refined rule

specifically intended for application to variant factual contexts

or by way of a fact-specific rule that governs recross-examination.

There being no clearly established Supreme Court law to which the

SJC's decision is "contrary," we must evaluate the petitioner's

claim under the "unreasonable application" clause of section

2254(d)(1).

All seven justices of the SJC joined in declaring that a

criminal defendant has a Sixth Amendment right to recross-

examination if such questioning attends a new matter elucidated for

the first time on redirect examination. See O'Brien, 645 N.E.2d at

1174; see also id. at 1178 (O'Connor, J., dissenting) (agreeing

with this aspect of the majority opinion). This holding is

eminently reasonable. It accords with the unanimous opinion of the

federal appellate courts that have applied the general precepts of

Davis and its progeny in a recross-examination context. See United

States v. Ross, 33 F.3d 1507, 1518 (11th Cir. 1994); United Statesv. Baker, 10 F.3d 1374, 1404 (9th Cir. 1993); United States v.

Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991); United States v. Caudle,

606 F.2d 451, 457-58 (4th Cir. 1979); United States v. Morris, 485

F.2d 1385, 1387 (5th Cir. 1973). No other understanding of the

Confrontation Clause's application to recross-examination would be

objectively reasonable.

The crucial inquiry, then, is whether the SJC effected

"an unreasonable application of clearly established Federal law"

when it upheld the trial court's decision to cut off the specific

questions that the petitioner's attorney sought to pose to Shanahan

about a second statement during recross-examination. To answer

that question, we independently review whether the material raised

by the prosecution was "new matter" requiring cross-examination

under the Sixth Amendment.

This is not a simple matter. Although the general rule

is widely espoused, the case law contains little if any analysis of

what does (and does not) comprise a "new matter." In the absence

of authoritative guidance, the SJC reasoned that, on redirect, the

prosecution "sought to explain the circumstances surrounding the

making of a statement which had been used to impeach the witness on

cross-examination," and therefore, that questions about a second

statement "not brought out at any point on direct, cross, or

redirect examination" were beyond the scope of the redirect.

O'Brien, 645 N.E.2d at 1174. The SJC also noted that the

petitioner could have entered Shanahan's second statement into

evidence during the initial round of cross-examination to buttress

the argument that her trial testimony was incorrect. See id.

The other pan of the scale is by no means empty. The

petitioner, ably represented, argues that the SJC majority's view

of the redirect is overly cramped. He asseverates, as did the

dissenting justices, that the "material new matter which was

brought out for the first time on redirect was not [Shanahan's]

second statement, but was [her] upset state of mind when she gave

her first statement, brought out to reduce that statement's

impact." Id. at 1178 (O'Connor, J., dissenting). On this

appraisal, the contents of the second statement were relevant to

countering the prosecution's "mental state" initiative and thus

within the scope of redirect.

We regard the question as a close one but, under

AEDPA's newly minted standard of review, the very closeness of the

call militates strongly against the granting of habeas redress.

After thoroughly reviewing the trial transcript we deem both sides'

positions on the scope of the prosecution's redirect as quite

plausible. Accordingly, in the absence of contrary Supreme Court

authority, we cannot say that the SJC's conclusion is so offensive

to existing precedent, so devoid of record support, or so arbitrary

as to indicate laxity in addressing the petitioner's claim of

error. Hence, there was no unreasonable application of clearly

established Supreme Court precedent.

IV. CONCLUSION

We need go no further. In enacting AEDPA, Congress

altered federal habeas corpus procedure in significant respects.

We believe that our conception of section 2254(d)(1)'s standard of

review provision is faithful to the statute's language, honors

Congress's intent, and does not diminish the proper constitutional

role of the federal judiciary. Applying this framework, the

Massachusetts courts' resolution of the petitioner's claim of

constitutional error passes muster: the SJC's decision is neither

contrary to, nor an unreasonable application of, clearly

established law (as determined by the Supreme Court of the United

States). Consequently, the district court correctly dismissed

O'Brien's habeas petition.

Affirmed.