Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2490

RICHARD R. DESROSIER,

Petitioner, Appellant,

v.

LYNN BISSONNETTE,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

 Howard, Circuit Judge,

Selya, Senior Circuit Judge,

and Dyk, Circuit Judge. *

Greg T. Schubert for appellant.

Annette C. Benedetto, Assistant Attorney General, Criminal

Bureau, with whom Martha Coakley, Attorney General, was on brief,

for appellee.

September 14, 2007
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HOWARD, Circuit Judge. Petitioner Richard R. Desrosier

appeals from the district court's denial of his petition for a writ

of habeas corpus, claiming that he did not knowingly or

intelligently plead guilty to second-degree murder in Massachusetts

Superior Court because he had not been adequately informed of the

elements of the offense. We affirm.

Desrosier was indicted on one count each of first- and

second-degree murder for killing a young woman in Worcester in

April 1990. As related by the Commonwealth at the plea hearing,

the evidence against him included the testimony of an acquaintance

that a foursome consisting of himself, Desrosier, the victim, and

another, underage, girl had obtained vodka and beer on the day of

the killing and had gone up to the roof of a defunct railroad

terminal to drink it. At some point, Desrosier and the victim were

left alone. When the acquaintance returned, over Desrosier's

protest, he saw that the victim's prone and unclad body was

engulfed in flames. Desrosier then stated that he had killed the

victim because she had refused to have sex with him.

The acquaintance fled the scene but later returned with

the police, who found the victim's body on a lower section of the

roof of the terminal, nineteen feet below an opening on the level

where Desrosier had last been seen. The Commonwealth also

recounted the statements of a number of other people who had

interacted with Desrosier in the wake of the murder. Their
The difference is that there is no parole from a sentence for 1

first-degree murder. See Mass. Gen. Laws Ann. ch. 265, § 2 (2000).

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proffered testimony was that Desrosier had blood on his clothing

and hands which he acknowledged was another person's blood, and

that Desrosier told them that he had just killed someone. The

police also retrieved clothing from Desrosier's home with stains

matching the victim's blood type.

At the plea hearing, Desrosier conceded that he had no

reason to doubt that the killing had occurred in the manner

described but explained that he had no independent recollection of

the events of that evening because he had "blacked out" from

drinking. Desrosier, who described himself at the time as a

twenty-three year-old high-school graduate, also testified that he

understood the difference between the sentences for first- and

second-degree murder with respect to parole. He further stated 1

that his lawyer had discussed with him the Commonwealth's evidence,

"the defenses [he] could raise and the other things [he] could do

if [he] had a trial," and "the pros and cons of having a trial, as

opposed to entering a plea of guilty." His counsel, with whom

Desrosier said he was satisfied, added that Desrosier had been

given copies of the police reports prepared as part of the murder

investigation as well as a transcript of the probable cause

hearing, which he had "reviewed . . . many times." The Superior

Court accepted Desrosier's plea to second-degree murder and
When Desrosier filed the motion, he was proceeding pro se and 2

asserted a number of different grounds for relief, including

ineffective assistance of counsel. This claim was withdrawn,

however, by Desrosier's counsel at the motion hearing.

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sentenced him to a mandatory term of life in prison.

Some five years later, Desrosier moved to withdraw his

plea, arguing, inter alia, that he had not been sufficiently

informed of the elements of first- or second-degree murder. A 2

different Superior Court justice from the one who had taken the

plea held an evidentiary hearing, at which Desrosier was

represented by different counsel. At this hearing, Desrosier

called as a witness his former defense attorney, who testified

that, prior to the entry of the plea, the two of them had "assessed

everything, and we discussed it," including the police and autopsy

reports, the probable cause hearing, the main witnesses, and

defense counsel's investigation. Desrosier did not testify.

The Superior Court granted the motion, ruling that

"because there is no record that the defendant was ever

specifically informed of the elements of murder in the first or

second degree, including the requisite level of intent needed to

commit such crimes, the defendant's plea was not freely and

understandingly made." Massachusetts v. Desrosier, No. 90-2097,

slip op. at 10 (Mass. Super. Ct. Nov. 7, 2000). Specifically, the

court found that the judge who took the plea "failed to discuss any

of the elements of the murder charges, including intent, in his
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colloquy even after the defendant claimed he had a 'blackout.'" 

Id. The court also concluded that Desrosier's statements at the

plea hearing were "not specific enough to demonstrate that [he] was

fully informed of the elements of the crime." Id.

The Commonwealth appealed this decision to the

Massachusetts Appeals Court, which reversed. Massachusetts v.

Desrosier, 778 N.E.2d 1 (Mass. App. Ct. 2002). While observing

that "it would have been preferable had the plea hearing judge

explained the elements of murder in the first and second degrees at

the plea hearing," the Appeals Court nevertheless concluded that

"the record demonstrates that the defendant did, in fact, plead

freely and understandingly." Id. at 6. The court noted that

the defendant heard a detailed recitation of the evidence

against him, and stated that he did not have any reason

to doubt the veracity of that evidence; he acknowledged

he admitted [the] killing . . . to numerous persons; [he]

affirmed he had discussed possible defenses with his

attorney; defense counsel testified he had discussed the

evidence with the defendant, and they had 'assessed

everything'; and there is no suggestion that the

defendant was not on notice of the charges contained in

the indictment. 

Id. at 8. Citing specifically to Desrosier's statements at the

plea hearing, the Appeals Court reasoned that "as a matter of

common sense, a discussion of 'defenses' and the 'pros and cons of

having a trial' would not take place in isolation," but "almost

certainly would have referred to the elements of the crimes to

which the defenses would be advanced." Id. at 6-7. The court

ruled that, as such, the record demonstrated that Desrosiers had
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been advised of the elements of the offense as required by

Henderson v. Morgan, 426 U.S. 637 (1976). 778 N.E.2d at 5-6.

After the Massachusetts Supreme Judicial Court denied his

application for further appellate review, 782 N.E.2d 515 (Mass.

2003), Desrosier filed a petition for a writ of habeas corpus in

federal district court, claiming that the decision of the Appeals

Court amounted to an unreasonable application of Supreme Court

precedent under the Antiterrorism and Effective Death Penalty Act

of 1996, 28 U.S.C. § 2254(d) (2007) ("AEDPA"). The petition was

referred to a magistrate judge, id. § 636(b)(1)(B) (2007), who

recommended that it be denied. The magistrate judge determined

that the Appeals Court had not unreasonably applied Supreme Court

precedent when it held "that discussions between [Desrosier] and

his lawyer necessarily included advice concerning elements of the

crime with which [Desrosier] was charged," and that "although

reasonable minds could disagree as to the [Appeals Court's]

findings of fact, those findings are not unreasonable in light of

the record which was available to [it]" (footnote omitted).

Desrosier v. Bissonette, No. 03-40194, slip op. at 10-11, 12 (D.

Mass. Dec. 19, 2005). 

The district court adopted the magistrate judge's report

and recommendation over Desrosier's objections. The court reasoned

that, because the elements of second-degree murder "are neither

complex nor esoteric . . . it is hardly unbridled conjecture to
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draw the inference that, in the course of assessing and discussing

'everything' about the case, [Desrosier] was made aware by counsel

that the Commonwealth had to prove he intended to cause the

victim's death." Desrosier v. Bissonette, No. 03-40194, slip op.

at 6, 7 (D. Mass. Sept. 19, 2006). (footnote omitted). Desrosier

then applied for, and was granted, a certificate of appealability

on the issues of whether the Appeals Court's decision involved an

unreasonable application of Supreme Court precedent or an

unreasonable determination of the facts. This appeal followed.

In considering an appeal from a denial of a petition for

habeas corpus, we review the district court’s legal conclusions de

novo. See, e.g., Furr v. Brady, 440 F.3d 34, 36-37 (1st Cir.

2006). Under AEDPA, a federal court cannot grant habeas relief

“with respect to any claim that was adjudicated on the merits in

State court proceedings” unless the state court decision (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). We agree with the magistrate

judge and the district court that the Appeals Court's decision

suffers from neither of these infirmities.

"A guilty plea operates as a waiver of important rights,

and is valid only if done voluntarily, knowingly, and intelligently
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. . . . Where a defendant pleads guilty to a crime without having

been informed of the crime's elements, this standard is not met and

the plea is invalid." Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)

(citing Henderson, 426 U.S. at 647). As the Appeals Court noted,

this rule does not require the judge who took the plea to have

explained the elements of the offense to the defendant, provided

that the record adequately reflects that defense counsel did so.

Id. The record need not, however, contain defense counsel's

explicit affirmation to that effect. "[E]ven without such an

express representation, it may be appropriate to presume that in

most cases defense counsel routinely explain the nature of the

offense in sufficient detail to give the accused notice of what he

is being asked to admit." Henderson, 426 U.S. at 647.

Contrary to Desrosier's contention, the Appeals Court did

not unreasonably apply these federal constitutional rules for a

valid guilty plea. While the court did not invoke, by name, a

"presumption" that defense counsel had explained the elements of

second-degree murder to Desrosier, its reasoning was entirely

consistent with that aspect of Henderson. Based on Desrosier's

admissions at the plea hearing that he had discussed the "defenses"

and the "pros and cons of having a trial" with his former attorney,

as well as on the attorney's testimony at the motion hearing that

he and his client had "discussed" and "assessed everything," the

Appeals Court concluded that defense counsel had informed Desrosier
Lending further support to the Appeals Court's decision, as the 3

district court noted, is the fact that the elements of seconddegree murder are not difficult to explain or understand. See,

e.g., United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995)

("the method for determining the defendant's understanding of the

charge will vary from case to case depending on the complexity of

the charges, the capacity of the defendant, and the attendant

circumstances").

Relying on North Carolina v. Alford, 400 U.S. 25 (1970), Desrosier 4

argues that, because he did not expressly admit to acts

constituting second-degree murder but merely stated that he had no

reason to doubt the Commonwealth's version of facts, his counsel

was required to explain the elements of both first- and seconddegree murder to him. We have our doubts as to Desroiser's

premise, see, e.g., United States v. Tunning, 69 F.3d 107, 111 (6th

Cir. 1995) (holding that Alford applies only when the defendant

pleads guilty while asserting his innocence, not merely while

refusing to admit the acts constituting the crime), but, in any

event, we disagree with his conclusion. Though the Massachusetts

Supreme Judicial Court has arguably read Alford to require that a

defendant understand the elements of both the crime with which he

was charged and the crime to which he pleaded guilty, Massachusetts

v. Nikas, 727 N.E.2d 1166, 1169-70 (Mass. 2000), we do not read

Alford so rigidly, and Desrosier does not cite any federal court

decision, let alone any Supreme Court decision, that does. Cf.

Allard v. Helgemoe, 572 F.2d 1, 2 (1st Cir. 1978) ("Alford holds

that a court may constitutionally accept a plea of guilty from a

defendant who continues to protest his innocence"). By rejecting

Desrosier's Alford argument, then, the Appeals Court did not

unreasonably apply federal law.

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of the elements of the charge of second-degree murder.3

Massachusetts v. Desrosier, 778 N.E.2d at 5-7. Given that the

Supreme Court has never required defense counsel to say outright

that he or she has discussed the elements of the crime with the

defendant in order for a constitutionally valid plea to result--

indeed, Henderson in applying the presumption holds to the

contrary--the Appeals Court did not unreasonably apply federal

law.4
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Though Desrosier does not argue that the Appeals Court's

decision was based on an unreasonable determination of the facts,

that idea permeated both his brief and oral argument in this case.

In particular, he objects to what he sees as the Appeals Court's

essentially discarding the motion court's finding that his prior

attorney did not, in fact, inform him of the elements of seconddegree murder. We see things differently. The Appeals Court

simply disagreed with the motion court about the legal significance

of the fact that defense counsel did not expressly state that he

recited the elements to Desrosier. In any event, federal courts

cannot grant habeas relief based on mere disagreements with how a

state court conducts its appellate review. In other words, "statecourt judgments must be upheld unless, after the closest

examination of the state-court judgment, a federal court is firmly

convinced that a federal constitutional right has been violated."

Williams v. Taylor, 529 U.S. 362, 388 (2000) (plurality opinion).

We are unconvinced that anything approaching the unconstitutional

happened here.

Furthermore, to the extent that the Appeals Court did

resolve any facts in overturning the Superior Court's decision,

Desrosier has the burden to show, by clear and convincing evidence,

that those factual determinations were unreasonable. 28 U.S.C. §

2254(e)(1). He has not done so. Indeed, he has never come forward

with any evidence to contradict his former attorney's version of
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events or to negate the inference that they did in fact discuss the

elements of second-degree murder. It is not enough for him simply

to argue for the contrary inference at this point. The district

court properly dismissed Desrosier's petition.

Affirmed.