CA1 — memorandum disposition

Raposa v. Bissonnette, No. 07-2061 — The court summarily affirmed the district court’s denial of the writ.

No explanation of the court’s reasoning was apparent from the order.  It did say that the petitioner’s claims were exhausted and that the district court had granted a COA, but that was all.  According to the court, there was “no error in the SJC’s [Supreme Judicial Court of Massachusetts] decision warranting grant of the writ.”

Guess we’ll never know.

Malone v. Clarke (CA1)

Malone v. Clarke, No. 07-1613 (CA1) — The First Circuit affirmed the district court’s denial of federal habeas relief for a Massachusetts state prisoner convicted of molesting his daughter over a three-year period between her 11th and 14th birthdays.  It ruled that trial counsel was not ineffective for failing to subpoena a police officer to impeach his daughter’s testimony at trial.

Malone and his wife argued frequently, but on July 20, 1999, she had had enough.  She told Malone she had consulted a divorce lawyer and asked him to take his belongings and move out.  Malone did so, and then their daughter told her that Malone had been raping her.  Malone’s wife went to the police.  Malone was indicted on child molestation charges; his daughter’s “vivid” testimony helped to convict him.

The impeachment testimony Malone sought to introduce related to his daughter’s belief that Malone was a “strict disciplinarian,” and also related to inconsistencies between the daughter’s trial testimony and statements she had made to the police.  Nevertheless, the prosecution was able to rehabilitate the daughter’s testimony with testimony from her sister.  Confusion about whether the prosecution would call the officer led trial counsel to ask for a continuance to subpoena the officer, but the trial court denied the request.  Defense counsel made an offer of proof regarding what the officer would have testified to on direct examination, and then conceded that he neglected to call the officer not as part of trial strategy but rather owing to a “mistake.”  The trial court disagreed that there had been a “mistake” on counsel’s part, and offered that counsel had, in fact, been able to expose the inconsistencies in the daughter’s statement without allowing the officer to testify to the entire substance of the conversation with the daugher.  Malone was convicted on all counts.

The trial court denied a motion for a new trial on grounds of defense counsel’s ineffectiveness for failing to call the officer to testify.  The Massachusetts Appeals Court affirmed the conviction and the denial of the motion for a new trial.  It ruled that Malone had suffered no prejudice because the officer’s testimony would merely have been cumulative and offered solely for impeachment value.  The Massachusetts Supreme Judicial Court denied leave to seek further review.

Malone filed a 2254 petition in federal district court, raising this IAC issue.  The district court denied the petition but certified the IAC claim for appeal.  The First Circuit first stated that although the state courts did not expressly rely on Strickland v. Washington, 466 U.S. 668 (1984), to reject Malone’s IAC claim, their reliance on Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974) was not “contrary to” Strickland.  Nor had the state courts unreasonably applied Strickland.  Malone had suffered no prejudice, because there was no reasonable probability that if the officer had testified, the result of the proceeding would have been different.  Although it consisted primarily of the daughter’s “vivid and descriptive account of years of sexual abuse by her father,” the prosecution’s case was strong.  Defense counsel was able to expose the inconsistencies in the daughter’s testimony through cross-examination not only of the daughter, but also of her sister and her mother.  In light of the “totality of the evidence” before the jury, the state courts did not unreasonably apply Strickland to conclude that Malone had suffered no prejudice.