Brown v. Murphy

USCA1 Opinion

September 23, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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No. 96-1059

ALFRED K. BROWN,

Petitioner,

v.

PAUL MURPHY, SUPT., OCCC,

Respondent.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge] ___________________

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Before

Selya, Boudin and Stahl,

Circuit Judges. ______________

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Alfred K. Brown on brief pro se. _______________

Scott Harshbarger, Attorney General, and Gail M. McKenna, __________________ _________________

Assistant Attorney General, Criminal Bureau, on brief for appellee.

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Per Curiam. Petitioner Alfred K. Brown appeals the ___________

denial by the district court of his motion for habeas relief,

pursuant to 28 U.S.C. 2254. We affirm.1 1

Brown first claims that he received constitutionally

ineffective assistance of counsel in the state trial and

appellate courts. The state contends that the ineffective

assistance claim is insulated from federal habeas review

because the state court found it procedurally defaulted.

Brown responds in turn that the default should be excused

because it was caused by ineffective assistance of appellate

counsel. The claim of ineffective assistance of appellate

counsel is based solely on counsel's failure to argue

ineffective assistance of trial counsel. Since the question

of whether cause has been shown is inextricably entangled

with the merits, we find it easier to address directly those

merits.

We find the claim of ineffective assistance of trial

counsel to be without foundation, essentially for the reasons

given by the district court. We add only the following.

Insofar as Brown's claim rests on counsel's alleged

failure to investigate adequately the defense of insanity,

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1The "Antiterrorism and Effective Death Penalty Act of 1

1996" ( Pub. L. 104-32 ) was signed into law while this appeal

was pending. We need not determine to what extent the Act's

amendments govern this case since, even under the more

expansive scope of review prior to the Act, Brown is not

entitled to relief.

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the record indicates no such deficiency. We note in

particular that the information provided in the affidavits of

Drs. Yudowitz and Profit is essentially cumulative of what

was presented at trial. Hence, the failure to present such

information does not constitute ineffective assistance of

counsel. See, e.g., United States v. Jackson, 935 F.2d 832 , ___ ____ _____________ _______

846 (7th Cir. 1991) (counsel not ineffective for failing to

present cumulative evidence).

Brown may be correct in his claim that the trial judge

erred in informing the jury as to the sentencing consequences

of the verdicts of first and second degree murder, other than

that of not guilty. See Commonwealth v. Ferreira, 373 Mass. ___ ____________ ________

116, 123-38, 364 N.E.2d 1264, 1269-72 (1977) (error to charge

jury that verdict of guilty of murder in first degree would

carry sentence of life imprisonment without parole, whereas

verdict of guilty of murder in second degree would carry same

sentence with eligibility for parole after fifteen years).

However, it would have been reasonable for counsel to have

made a "deliberate tactical decision" not to object to that

charge based on the reasoning "that informing the jury of the

sentencing outcomes associated with possible verdicts

improved his client's chances of avoiding a verdict of guilty

of murder in the first degree." Commonwealth v. Burnett, 371 ____________ _______

Mass. 13, 16-17, 353 N.E.2d 665, 667 (1976). A decision

consistent with a reasonable trial strategy cannot support a

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claim of ineffective assistance of counsel. Strickland v. __________

Washington, 466 U.S. 668, 689 (1984); Lema v. United States, __________ ____ _____________

987 F.2d 48, 51 (1st Cir. 1993).

Finally, we agree with finding of the state trial and

appellate courts that the record indicates that Brown's

statements to the police on the night of the murders were

voluntary.

Affirmed. See 1st Cir. Loc. R. 27.1. ________ ___

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