United States Court of Appeals

For the First Circuit

No. 11-1025

LOUIS R. COSTA,

Petitioner, Appellant,

v.

TIMOTHY HALL, Superintendent, Massachusetts Correctional

Institute; THOMAS REILLY,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Chief Judge,

Souter, Associate Justice, *

and Stahl, Circuit Judge.

David J. Apfel, with whom Elianna J. Nuzum, Kristen A.

Kearney, and Goodwin Procter LLP, were on brief, for petitioner.

Argie K. Shapiro, Assistant Attorney General, Criminal

Bureau, with whom Martha Coakley, Attorney General of

Massachusetts, was on brief, for respondents.

March 8, 2012

The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. Louis Costa is serving a life

sentence without possibility of parole for the first-degree murders

of two men in 1986 in Boston's North End. One of the victims was

shot sixteen times, the other seven, at close range. Three

defendants were charged and the ballistics evidence indicated that

three guns were used.

Costa was sixteen years old at the time, but after a

hearing in juvenile court, he was transferred to Massachusetts

Superior Court for adult criminal proceedings, based on separate

findings that there was probable cause to believe he had committed

the murders and that he was not amenable to rehabilitation in the

juvenile justice system. Had he remained in juvenile court, he

would have undergone rehabilitation within the juvenile system;

once transferred to Superior Court, he faced life imprisonment if

convicted. 

Costa's first conviction was vacated in 1992 by the

Massachusetts Supreme Judicial Court ("SJC"). He was tried a

second time in 1994, convicted again, and sentenced to life

imprisonment. Because he was convicted on an indictment of firstdegree murder, he invoked the special procedure under Massachusetts

General Laws ch. 278, § 33E, giving the SJC plenary review on

appeal as to his convictions after each trial. After Costa's

second trial, the SJC affirmed the juvenile court's transfer

decision, his conviction, and his life sentence.

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In 1999, Costa filed a motion for a new trial in Superior

Court, asserting for the first time that his trial counsel at the

second trial was ineffective in failing to attack the nonamenability finding, as was his appellate counsel in failing to

raise the same issue on his second appeal. The Superior Court

judge rejected the motion.

Costa then sought discretionary review in the SJC

pursuant to § 33E, filing a petition with a Single Justice

gatekeeper. On September 14, 2000, a Single Justice rejected

Costa's § 33E petition for leave to appeal the denial of his

motion. The Single Justice held, as a matter of state law, that

the petition failed to present a "new and substantial question." 

On October 30, 2000, Costa filed a petition for a writ of

habeas corpus in federal district court making essentially the same

two ineffective assistance of counsel claims along with other

claims not before us. For reasons not entirely obvious from the

record, it took ten years for the district court to hear and deny

Costa's petition, which it did on December 2, 2010. Costa took a

timely appeal.

We affirm the denial of federal habeas relief. Under our

decisions in Mendes v. Brady, 656 F.3d 126 (1st Cir. 2011), cert.

denied, No. 11-7674, 2012 WL 538490 (U.S. Feb. 21, 2012), and

Yeboah-Sefah v. Ficco, 556 F.3d 53 (1st Cir. 2009), the Single

Justice's denial of further review is an independent and adequate

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state ground. This bar to our review may only be lifted if Costa

shows cause and prejudice. He has not, and so federal habeas

review is barred.

I.

Louis Costa was one of three defendants charged with

first-degree murder in connection with the February 19, 1986

shooting deaths of Joseph Bottari and Frank Angelo Chiuchiolo in

Boston's North End. Commonwealth v. Tanso, 583 N.E.2d 1247, 1249

(Mass. 1992). Because Costa was sixteen years old at the time of

the murders, the initial proceedings took place in juvenile court. 

Pursuant to the statutory scheme then in effect, if the juvenile

court found probable cause to believe that Costa had committed the

murders, the court was required to make a separate "amenability"

determination as to Costa's potential for rehabilitation within the

juvenile justice system. Mass. Gen. Laws ch. 119, § 61 (1985)

(repealed 1996). Finding both probable cause and non-amenability,

the juvenile court transferred Costa to Superior Court to stand

trial as an adult. Costa opposed the transfer on both grounds.

At the probable cause portion of Costa's transfer

hearing, several witnesses testified, including two eyewitnesses to

the murders: Boston attorney Joseph Schindler, who observed the

murders from his apartment window in North Boston, and Richard

Storella, who was himself a participant in the murders. Storella,

who received immunity for his testimony, flatly placed Costa in

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both the planning and execution of the murders. Storella's account

of the murders at the hearing diverged somewhat from what he had

originally disclosed to investigative officers after the murders

took place, and Costa's attorney at the transfer hearing closely

cross-examined Storella on these inconsistencies. Based on the

testimony from the two eyewitnesses, Schindler and Storella, as

well as on ballistics evidence indicating that each victim had been

shot with three different weapons, the court found probable cause

to charge Costa with the two murders.

Having found probable cause, the court conducted an

extensive amenability hearing, at which it expressly considered the

required statutory factors: "(a) the seriousness of the alleged

offense; (b) the child's family, school and social history,

including his court and juvenile delinquency record, if any;

(c) adequate protection of the public; (d) the nature of any past

treatment efforts for the child; and (e) the likelihood of

rehabilitation of the child." Mass. Gen. Laws ch. 119, § 61 (1985)

(repealed 1996).

Two psychiatric experts for the Commonwealth, as well as

Costa's own psychiatric expert, testified at the hearing. Based on

their review of a variety of materials, including interviews with

Costa's family and psychological examinations of Costa, the experts

testified as to Costa's family life, school background, substance

abuse, and psychiatric profile. After considering this testimony

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and the evidence introduced at the hearing, the court found that

Costa had "admit[ted] to a history of aggressive behavior" and

alcohol abuse, that he experienced no remorse, had nothing but

"disregard for authority," and suffered from a "conduct disorder .

. . characterized by a repetitive and persistent pattern of

aggressive conduct against the rights of others." Because of these

qualities, the court found that Costa was "not a promising

candidate for psychological interventions."

The court also found that Costa's family life was

"unstable, volatile, and conflict ridden." Costa's father had been

sentenced to jail soon after Costa's birth. Although his father

had been paroled thirteen years later, at the time of the hearing

his whereabouts were unknown, and several arrest warrants had

issued for his alleged violations of parole. Costa's mother had

her own psychological disorders, for which she had been

hospitalized on occasion. She exercised "little, if any control

over" Costa. The court emphasized that neither Costa nor his

mother would admit to any problems with Costa's behavior, a problem

of significance, since family therapy constituted a primary "mode

of intervention" for juvenile delinquents under the statute, but,

as the court noted, "requires a recognition by all relevant parties

that a problem exists and that there is a need for change." 

The court also noted that "[l]ong-term residential

treatment in the juvenile justice system" would not ordinarily

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"extend beyond the defendant's 18th birthday." At the time of the

hearing, Costa was 16.6 years old, and the court underscored the

probable outcome that if it retained jurisdiction over Costa, he

would receive between eight to eighteen months of treatment. Such

a short period of treatment, the court found, would "hardly satisfy

the defendant's dire need for long-term secure and rehabilitative

treatment."

In April of 1986, the court issued a written order

finding Costa not amenable to rehabilitation within the juvenile

system, dismissing Costa's delinquency charges, and transferring

his case to Superior Court. Seven months later, the Superior Court

granted Costa's motion to remand the case to the juvenile court for

a clarification of the court's transfer findings, "in particular,

the finding of likelihood of rehabilitation." At this point, Costa

submitted additional psychiatric and behavioral evidence in the

form of reports issued by the Department of Youth Services, which

had exercised supervision over him during the pre-trial period.

In a revised ruling examining at length Costa's

psychological profile, family and behavioral history, substance

abuse, and potential for rehabilitation, the court reaffirmed its

non-amenability findings, concluding that: "by [his] actions [the

shootings], his admitted history of aggressive behavior, his lack

of anxiety, fear or remorse, and his disrespect for authority, in

general, [Costa] has demonstrated that he is an exceptionally

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dangerous individual who poses a substantial threat to the safety

of the public." Commonwealth v. DiBenedetto (DiBenedetto I), 605

N.E.2d 811, 819 (Mass. 1992) (second alteration in original).

A jury convicted Costa of two counts of first-degree

murder in Superior Court on April 11, 1988. In a motion for a new

trial filed by Costa and denied by the Superior Court, he argued

that newly uncovered evidence impugning Storella's credibility

required that his convictions be vacated and the case be sent back

for a new probable cause determination by the juvenile court.

 Subsequently, Costa appealed his conviction and the

denial of his motion for a new trial to the SJC. Under its plenary

powers to review all issues -- whether raised or overlooked by the

defendant -- on direct appeal of a capital case, see Mass. Gen.

Laws ch. 278, § 33E, the SJC thoroughly considered both aspects of

the juvenile court's transfer decision: the probable cause and nonamenability findings, DiBenedetto I, 605 N.E.2d at 818-19. The SJC

affirmed the Superior Court's order denying Costa's motion for a

new probable cause hearing, crediting the Superior Court's finding

that Costa's newly uncovered evidence "would have had little or no

value as material which would bear upon the credibility of

Storella." Id. at 818. In addition, the SJC examined the juvenile

court's non-amenability finding and found it to be without error. 

Id. at 819.

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Although it rejected his transfer hearing argument, as

well as various of his other arguments, the SJC reversed Costa's

conviction and ordered a new trial based on errors in the admission

of certain evidence at trial. Id. at 813-14. 1

 As a result, Costa's second trial was also in Superior

Court. Although he had been an unavailable witness at Costa's

first trial, Storella testified at the second trial, giving another

account of the murders, inconsistent with his earlier account at

Costa's transfer hearing. Storella's reliability became a key

issue at the second trial, prompting all three defendants to

strenuously challenge the veracity of his testimony. Commonwealth

v. DiBenedetto (DiBenedetto II), 693 N.E.2d 1007, 1009 (Mass.

1998).

The jury again convicted Costa on two counts of murder in

the first degree. On appeal, Costa again challenged Storella's

role in the juvenile court's decision to transfer his case, arguing

that he was entitled to a new probable cause hearing, this time

based on Storella's inconsistent testimony at the second trial. 

Although Richard Storella testified at Costa's transfer 1

hearing, he was unavailable to testify at Costa's first trial in

Superior Court. At that trial, the Superior Court admitted against

Costa Storella's recorded testimony from the transfer hearing. 

Costa argued to the SJC that because the juvenile court had limited

his cross-examination of Storella at the transfer hearing, the

admission of Storella's recorded testimony at his trial violated

the Confrontation Clause. The SJC agreed and ordered a new trial. 

Commonwealth v. DiBenedetto (DiBenedetto I), 605 N.E.2d 811, 815-16

(Mass. 1992). 

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The SJC rejected this claim on the grounds that "[i]n his numerous

versions of the crime, Storella never wavered from his position

that Costa was one of the shooters." Id. at 1014. It affirmed the

transfer and conviction.

Costa later filed a motion for a new trial in Superior

Court, in which he expressly raised for the first time the claims

that each of his trial and appellate counsel were ineffective in

failing to present claims for reconsideration of the juvenile

court's non-amenability finding in light of Storella's inconsistent

testimony. The Superior Court denied the motion on the grounds

that on Costa's first appeal, "the issue of Storella's credibility

at the transfer hearing was argued, the judge's rulings were

considered thoroughly and the decision to transfer was found to be

without error;" the same issue was again "presented and rejected"

on Costa's second appeal; and, beyond this, Costa had already

received plenary review under § 33E on both appeals. The court

also specifically noted that Costa had waived any claim as to

ineffective assistance of trial counsel by failing to raise it on

direct appeal. Thus finding Costa's claims procedurally defaulted

under state law, the Superior Court reviewed the case for error

amounting to "a substantial risk of a miscarriage of justice," the

default standard of review in Massachusetts for unpreserved claims,

Commonwealth v. Randolph, 780 N.E.2d 58, 64-65 (Mass. 2002)

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(quoting Commonwealth v. Freeman, 227 N.E.2d 3, 9 (Mass. 1967))

(internal quotation marks omitted), and denied relief. 

Pursuant to Massachusetts General Laws ch. 278, § 33E,

Costa petitioned a Single Justice of the SJC for review of his

motion for a new trial. The Single Justice denied his petition in

a written decision finding that he "failed to present a new and

substantial question" as required for further discretionary review

by the SJC. The Single Justice noted in his opinion that

"Storella's credibility at the transfer hearing had been argued in

both previous appeals, each time without success," and that

"Storella's testimony played but a minor role" in the juvenile

court's non-amenability determination.

Subsequently, Costa filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2254 in federal district court. The

district court denied Costa's petition, but issued a limited

Certificate of Appealability as to whether Costa's trial and

appellate counsel were ineffective in failing to challenge the

juvenile court's non-amenability findings.2

The district court also issued the Certificate of 2

Appealability as to Costa's claims that his trial and appellate

counsel were ineffective in failing to argue that the Commonwealth

violated its constitutional duty under Brady v. Maryland, 373 U.S.

83 (1963), to disclose exculpatory evidence related to Storella's

immunity agreement. Costa has not pursued these Brady claims on

appeal. 

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II.

We review the district court's denial of habeas relief

de novo. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006) (citing

Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir. 2003)). 

Ordinarily, a federal habeas court may not review a state

prisoner's claims where a state court has "declined to address

[those] claims because the prisoner . . . failed to meet a state

procedural requirement," and where this decision "rests on

independent and adequate state procedural grounds." Maples v.

Thomas, 132 S. Ct. 912, 922 (2012) (alteration in original)

(quoting Walker v. Martin, 131 S. Ct. 1120, 1127 (2011)) (internal

quotation marks omitted). This independent and adequate state

grounds doctrine "is grounded in concerns of comity and

federalism." Coleman v. Thompson, 501 U.S. 722, 730 (1991). "[A]

habeas petitioner who has failed to meet the State's procedural

requirements for presenting his federal claims has deprived the

state courts of an opportunity to address those claims in the first

instance." Edwards v. Carpenter, 529 U.S. 446, 451 (2000)

(alteration in original) (quoting Coleman, 501 U.S. at 732)

(internal quotation marks omitted). Thus, a petitioner must

demonstrate cause for any state-court procedural default of federal

claims, and prejudice therefrom, before the federal courts may

consider the merits of those claims. Id.

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The "particular waiver rule" expressed in Massachusetts's 

§ 33E procedure for gatekeeper review merits "separate, categorical

treatment" as an independent and adequate state ground. Mendes,

656 F.3d at 129. A Single Justice's finding that a petitioner has

not raised a "new-and-substantial" question for further review

constitutes a finding of procedural default under state law. Id.

at 131; cf. Walker, 131 S. Ct. at 1127.

Under Massachusetts law, a claim is not "new" within the

meaning of § 33E where it "has already been addressed, or where it

could have been addressed had the defendant properly raised it at

trial or on direct review." Commonwealth v. Gunter, 945 N.E.2d

386, 393 (Mass. 2011), cert. denied, 132 S. Ct. 218 (2011). 

Section 33E "requires that the defendant present all his claims of

error at the earliest possible time, and failure to do so precludes

relief on all grounds generally known and available at the time of

trial or appeal." Id. (quoting Commonwealth v. Pisa, 425 N.E.2d

290, 293 (Mass. 1981)). A defendant, moreover, may not avoid

§ 33E's "new and substantial" rule by simply attributing such

claims to ineffective assistance of counsel, id. at 393-94; even

where a Single Justice allows SJC review, the claims will be

reviewed under the "substantial risk of a miscarriage of justice"

standard ordinarily applicable to unpreserved claims, Commonwealth 3

Section 33E provides for a more generous standard of 3

review for ineffective assistance of counsel claims brought

alongside a defendant's direct appeal. See Mendes v. Brady, 656

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v. Lao, 877 N.E.2d 557, 563 (Mass. 2007); Randolph, 780 N.E.2d at

65; see also Gunter v. Maloney, 291 F.3d 74, 78-79 (1st Cir. 2002).

Recognizing that underlying Costa's ineffective

assistance of counsel claims was an argument about Storella's

credibility, an issue well-covered at both of Costa's trials and

respective appeals, the Single Justice found that his claims did

not raise a "new" issue within the meaning of § 33E. "On the

question of the defendant's amenability to rehabilitation," the

Single Justice found that "Storella's testimony played but a minor

role, forming just one sentence in [eight pages] of findings made

by the transfer judge." The Justice found that the juvenile court

gave thorough "consideration to the appropriate factors in deciding

to transfer the defendant," and that any "differences in Storella's

testimony do not require a new transfer hearing." The Justice

noted that in both of Costa's prior appeals, the SJC "determined

F.3d 126, 130 (1st Cir. 2011), cert. denied, No. 11-7674, 2012 WL

538490 (U.S. Feb. 21, 2012). At this stage, the defendant has the

opportunity to file a motion for a new trial in the SJC and

supplement the record there as needed: any ineffective assistance

of counsel claims benefit from the more favorable "substantial

likelihood of a miscarriage of justice" standard of review. 

Commonwealth v. Novo, 865 N.E.2d 777, 787 (Mass. 2007). However,

after rescript has issued in the direct appeal, unpreserved claims

attributed to ineffective assistance of counsel will be reviewed

for error "giv[ing] rise to a substantial risk of a miscarriage of

justice," the standard ordinarily applicable to unpreserved claims. 

Commonwealth v. Randolph, 780 N.E.2d 58, 65 (Mass. 2002); see also

Commonwealth v. Smith, 951 N.E.2d 322, 320-24 (Mass. 2011)

(explaining the difference between the two standards of review).

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there was no error in the decision to transfer the defendant to the

Superior Court for trial as an adult."

The Single Justice's finding that neither of Costa's

ineffective assistance of counsel claims presented "new and

substantial questions" within the meaning of § 33E review

constitutes an independent and adequate state ground. The Single

Justice observed that both claims merely reiterated the same

substantive challenge to Storella's credibility already decided

against Costa on the merits. Although Costa argues that his

ineffectiveness of appellate counsel claim necessarily presents a

"new" question in that it could not have been raised until after

his direct appeal, the Single Justice also found that this claim

was not substantial, rendering Costa's "newness" argument, were it

even plausible, irrelevant. The Single Justice's finding of a

4

lack of substantiality constitutes an independent and adequate

state ground in and of itself and acts to bar federal review. 

Mendes, 656 F.3d at 128. 

The fact that the Single Justice also explained his views

as to why the claims were not new and not substantial does not

convert his decision into one on the merits. We made this clear in

Given that in its earlier decisions, the SJC twice 4

reviewed and decided the transfer claim against Costa, the claim

was not "new" within the meaning of § 33E. See Commonwealth v.

DiBenedetto (DiBenedetto II), 693 N.E.2d 1007, 1014 (Mass. 1998); 

DiBenedetto I, 605 N.E.2d at 818-19. The ineffective assistance of

appellate counsel claim merely reiterated the same substantive

claim asserted against trial counsel.

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Mendes: any supplemental discussion of the petitioner's claims is

"not [a] ruling on the merits," since the Single Justice has "no

authority under state law" to reach the merits in his or her

exercise of gatekeeper review. Id. at 131. Section 33E's waiver 5

rule is unaltered by the Single Justice's discussion of Costa's

claims in the decision denying him further review.

III.

As a rule, when a state prisoner has defaulted a federal

claim in state court pursuant to an independent and adequate state

procedural rule, federal habeas relief is barred unless the

prisoner demonstrates either cause for and prejudice from the

default, Maples, 132 S. Ct. at 922; Bucci v. United States, 662

F.3d 18, 27 (1st Cir. 2011), or actual innocence, Schlup v. Delo,

513 U.S. 298, 321 (1995). "The procedural default doctrine and its

attendant cause and prejudice standard . . . apply alike whether

This accords with our prior case law. In Jewett v. 5

Brady, 634 F.3d 67 (1st Cir. 2011), we held that where, unlike

here, the Single Justice finds that a claim is "new" within the

meaning of § 33E, a federal habeas court must accept this as a

binding merits determination of newness and may not look behind the

reasoning. Id. at 76 ("[A] determination that the issues are 'new'

and simply not 'substantial' resolves the claims on the merits and

does not signal procedural default."). However, where, as here,

the Single Justice finds a claim is neither new nor substantial

under § 33E, this is a procedural bar to federal habeas review. 

Id.

And in Phoenix v. Matesanz, 189 F.3d 20 (1st Cir. 1999), we

noted that in a case where the Single Justice finds a procedural

default but briefly examines the merits to determine if the

"substantial risk of a miscarriage of justice" standard is met,

such review does not undercut the independence and adequacy of the

state grounds. Id. at 25 n.2. 

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the default in question occurred at trial, on appeal, or on state

collateral attack." Carpenter, 529 U.S. at 451 (internal citations

and quotation marks omitted); see also Murray v. Carrier, 477 U.S.

478, 490-91 (1986). Costa can show neither cause nor prejudice

here, nor has he attempted to show actual innocence. 

Because Costa has procedurally defaulted his ineffective

assistance of counsel claims in state court, he cannot simply rely

on what is at the heart of the merits of those claims, the alleged

ineffectiveness, to show cause for procedural default of the same

claims. Carpenter, 529 U.S. at 453. He must independently satisfy

the cause and prejudice standard with respect to both ineffective

assistance claims. Federal habeas courts do not exempt ineffective

assistance of counsel claims from the general rule requiring cause

and prejudice for procedural default, because to do so would render

the exhaustion requirement "illusory." Id. at 452. This is true

where, as here, the petitioner attempts to excuse procedural

default of his ineffective assistance of counsel claim by pointing

merely to another layer of ineffectiveness. 

Costa has shown neither cause for nor prejudice from this

second level of procedural default. Cause for procedural default

"must ordinarily turn on whether the prisoner can show that some

objective factor external to the defense impeded counsel's efforts

to comply with the State's procedural rule." Carrier, 477 U.S. at

488; see also Reed v. Ross, 468 U.S. 1, 16 (1984). This could

-17-
include a showing that "the factual or legal basis for a claim was

not reasonably available to counsel," Carrier, 477 U.S. at 488, or

that there was "some interference by officials," id. (quoting 

Brown v. Allen, 344 U.S. 443, 486 (1953)) (internal quotation marks

omitted). Costa argues that his attorneys simply did not recognize

that an amenability argument could be made on the basis of

Storella's inconsistent testimony. However, that counsel simply

"failed to recognize the factual or legal basis for a claim" does

not in and of itself "constitute cause for a procedural default." 

Gunter, 291 F.3d at 82 n.2 (quoting Carrier, 477 U.S. at 486)

(internal quotation mark omitted). 

The factual basis for the amenability claim was known or

knowable by the time of Costa's second trial and appeal. At that

point, Storella had given multiple inconsistent accounts of the two

murders. As a result, claims based on these inconsistencies were

reasonably available at trial and on direct appeal: indeed,

Storella's inconsistent testimony was the basis of Costa's probable

cause attack. Finally, Costa has not and cannot make the argument

that state officials or some other external factor interfered or

made compliance with the state rule "impracticable." Coleman, 501

U.S. at 753 (quoting Carrier, 477 U.S. at 488). 

In addition to failing to show cause, Costa is unable to

show prejudice, the second showing he must meet to avoid the

independent and adequate state grounds doctrine. Id. at 750. To

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show prejudice, Costa must demonstrate "not merely that the errors

. . . created a possibility of prejudice, but that they worked to

his actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions." Carrier, 477 U.S. at 494

(quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Costa

is unable to make this showing.

As the SJC found in DiBenedetto II, and as the Single

Justice noted in his decision, although Storella changed the

particulars of his testimony as to Costa's role in the murders, he

"never wavered" from the critical point that Costa was one of the

killers. 693 N.E.2d at 1014. Costa argues nonetheless that

Storella's embellished depiction of Costa's conduct during the two

murders was critical to the juvenile court's non-amenability

finding. However, the Single Justice noted in his decision,

"Storella's testimony played but a minor role" in the juvenile

court's non-amenability finding, constituting "just one sentence"

in eight pages of findings. There was no prejudice. That ends the

matter. 

We are barred from reviewing the state court's decision

because it rests on an independent and adequate state ground. The

denial of the petition is affirmed. 

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