Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1296

RICHARD DRAYTON NORTH,

Petitioner, Appellant,

v.

JOSEPH F. MCDONOUGH, SHERIFF, PLYMOUTH COUNTY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge,

David J. Nathanson on Memorandum in Support of a Certificate

of Appealability for appellant.

December 23, 2004
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Per Curiam. Richard North seeks a certificate of

appealability (COA) to appeal from the district court's denial of

his petition for habeas relief pursuant to 28 U.S.C. § 2254 from a

state court conviction on twenty-two indictments for larceny by

false pretenses. North seeks a COA to pursue his claims that he

was denied counsel or, in the alternative, received ineffective

assistance of counsel, in violation of his Sixth Amendment rights.

We may grant a COA only if the district court's application of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to

deny habeas relief was "debatable among jurists of reason." MillerEl v. Cockrell, 537 U.S. 322, 336 (2003). 

Under AEDPA, a federal court may grant a state prisoner's

application for a writ of habeas corpus if the underlying state

adjudication "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." 28 U.S.C. § 2254(d). With respect to the "unreasonable

application" clause, the focus "is on whether the state court's

application of clearly established federal law is objectively

unreasonable, and . . . an unreasonable application is different

from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002).

I. Constructive Denial of Counsel

In United States v. Cronic, 466 U.S. 648 (1984), the

Supreme Court held that there are some circumstances of deficient
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representation "that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is

unjustified" and, therefore, prejudice will be presumed. Id. at

658-59. The Court in Bell "reiterated that prejudice may be

presumed only in three narrowly circumscribed situations." Ouber v.

Guarino, 293 F.3d 19, 33 (1st Cir. 2002).

First, a trial is presumptively unfair if the

accused is completely denied the presence of

counsel at a critical stage of the

proceedings. Second, such a presumption is

warranted if "counsel entirely fails to

subject the prosecution's case to meaningful

adversarial testing." Third, prejudice may be

presumed in the presence of circumstances

under which a competent lawyer would likely

not be able to render effective assistance.

Id. (citations omitted). 

In his memorandum in support of his habeas petition,

North argued that the circumstances of his case fell within

Cronic's second exception to the prejudice requirement:

[Defense counsel] completely failed to subject

the Commonwealth's case to meaningful

adversarial testing by: (1) her complete

failure to participate in jury selection, (2)

her failure to cross-examine thirty-six of

forty-five witnesses (including three of the

five complainants, and none of North's

employees), and (3) her baseless waiver of an

opening statement.

North's Memorandum in Support of Petition for Writ of Habeas

Corpus, Dkt No. 11, p. 13. The trial transcript indicates that at

each of the identified points in the trial, defense counsel stated

that she was not in a position to challenge jurors, make an opening
1 The record also supports the state court's finding that

despite counsel's protests that she had not been provided with

discovery, "[by] the time trial commenced, the trial judge and

other judges had made every reasonable accommodation to insure that

counsel and the defendant were prepared," and that "[w]hile trial

was ongoing, the judge adjusted the trial schedule repeatedly to

accommodate the defendant's review of documents." North, 52

Mass.App.Ct. at 613.

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statement or cross-examine certain prosecution witnesses because

she hadn't been provided with adequate discovery to try the case.

In Bell, the Supreme Court explained that in order to

come within Cronic's second exception, "the attorney's failure [to

test the prosecutor's case] must be complete." Bell, 535 U.S. at

697. By contrast, an argument that "counsel failed to oppose the

prosecution . . . at specific points" is subject to Strickland's

performance and prejudice components. Id. at 697-98. The state

court in this case supportably found that defense counsel was

present throughout the trial, effectively cross-examined key

prosecution witnesses and presented to the jury a "defense of goodfaith failure to provide a return on investments." Commonwealth v.

North, 52 Mass.App.Ct. 603, 614 (2001).1 On this record,

reasonable jurists could not find debatable the district court's

conclusion that the state court did not unreasonably apply Cronic

in concluding that North's representation did not fall within the

second Cronic exception.

II. Ineffective Assistance of Counsel
2 We therefore need not resolve petitioner's claim that the

state court applied a standard contrary to Supreme Court precedent

in holding that his acquiescence in his attorney's improper tactics

precluded a finding that the first prong of Strickland had been

satisfied.

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In analyzing North's ineffective assistance claim, the

state court applied Commonwealth v. Saferian 366 Mass. 89 (1974),

which this court has concluded is "for habeas purposes . . ., a

functional equivalent of Strickland." Ouber v. Guarino, 293 F.3d

19, 32 (1

st Cir. 2002). "To establish such a violation,

Strickland v. Washington, 466 U.S. 668, 687-96 (1984), requires

that [defendant] show (1) that [defense counsel's] performance fell

below an objective standard of reasonableness and (2) that

prejudice resulted." Tejeda v. Dubois, 142 F.3d 18, 22 (1

st Cir.

1998). The state court held that North had failed to satisfy

either prong of the Strickland test, and the district court found

that the state court had reasonably applied Strickland in reaching

that conclusion. 

Reasonable jurists could not dispute the district court's

determination. "Under the applicable constitutional standard, a

failure of proof on either prong of the Strickland test defeats an

ineffective assistance of counsel claim." United States v. LaBonte,

70 F.3d 1396, 1413-14 (1st Cir. 1995), rev'd on other grounds, 520

U.S. 751 (1997). We focus on the prejudice prong.2 To satisfy

Strickland's second prong, a defendant 
3 Petitioner's reliance upon Tejeda v. Dubois, 142 F.3d 18 (1st

Cir. 1998),is misplaced. As an initial matter, Tejeda filed his

habeas petition before the effective date of AEDPA and, therefore,

AEDPA's "more stringent limitations on the federal courts' review

of state court determinations via habeas proceedings" did not apply

and we reviewed his ineffective assistance claim de novo. Id. at

22. Moreover, our review of the record in this case indicates

other dissimilarities. We found that Tejeda's counsel "fail[ed] to

present a coherent argument" in support of the defense of police

fabrication. Id. at 25. We also found that Tejeda's counsel and

the trial judge "simply could not tolerate each other" and that

their relationship "ruptured completely." Id. at 22. The state

court made no such finding with respect to defense counsel's

relationship with the trial judge in this case, nor would the trial

transcript have supported such a finding.

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must demonstrate that there was a reasonable

probability that but for [his attorney's]

errors, the outcome of the trial would have

been different. For that purpose a reasonable

probability is defined as "a probability

sufficient to undermine confidence in the

outcome." And in that respect our analysis is

not limited to outcome determination - we must

also contemplate "whether the result of the

proceeding was fundamentally unfair or

unreliable."

Tejeda, 142 F.3d at 22.

In his memorandum in support of his habeas petition and

in his COA application, North specifically claims that he was

prejudiced by his counsel's failure to cross-examine certain

witnesses, failure to call other witnesses, and failure to consult

an accountant. Having considered those claims and reviewed the

state court trial transcript, we conclude that reasonable jurists

could not dispute the district court's determination that

petitioner failed to make the requisite showing that the state

court's prejudice determination was objectively unreasonable.3
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Petitioner's request for a COA is denied and the appeal

is terminated.