United States Court of Appeals

For the First Circuit

No. 09-1491

DEREK GLACKEN,

Petitioner, Appellant,

v.

THOMAS DICKHAUT, Superintendent, 

Souza Baranowski Correctional Facility,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lipez, Stahl and Howard,

Circuit Judges.

Joseph J. Balliro, Jr., and Balliro & Mondano, on brief for

appellant.

Martha Coakley, Attorney General and Anne M. Thomas, Assistant

Attorney General, Criminal Bureau, on brief for appellee.

November 3, 2009
 Commonwealth v. Glacken, 883 N.E.2d 1228 (Mass. 2008). 1

 The hearing occurred and the petition was denied before the 2

parties filed memoranda on the merits of the petition.

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HOWARD, Circuit Judge. Following a jury trial in

Massachusetts Superior Court, Derek Glacken ("Glacken") was

convicted of first degree murder by reason of extreme atrocity or

cruelty in the June 1996 stabbing death of Francis Sullivan. He

was sentenced to life imprisonment. After Massachusetts' highest

court affirmed his conviction , Glacken sought habeas corpus relief 1

in federal district court. In his state-court appeal and in the

federal court, Glacken argued that the trial court erroneously

instructed the jury and that his attorney's performance was

constitutionally inadequate. Ruling from the bench after a hearing

in which only Glacken presented argument, the district court denied

the petition. Although we employ a different route to reach the 2

same destination, we affirm the judgment of the court below.

I.

The facts surrounding Glacken's conviction are not in

dispute. We summarize them here only insofar as necessary to this

opinion, borrowing extensively from the Supreme Judicial Court's

("SJC") opinion, where a more complete factual recitation can be

found. Glacken, 883 N.E.2d at 1230-31.

On the night of June 13, 1996, Glacken and his friend,

John Conte, had dinner and then visited several bars. At their
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final stop, they met Sullivan and his friend, Wendy Pizzolo. At

some point in the evening, Pizzolo told Conte that Sullivan was

gay. The four stayed until closing, during which time Conte and

Glacken had consumed approximately twelve beers each, and Sullivan

at least six.

The group then went to Conte's house. Because Conte was

romantically interested in Pizzolo, he asked Glacken to take

Sullivan for a walk so that Conte could be alone with Pizzolo.

Later, when Conte and Pizzolo went outside to look for the two men,

Conte found a blood-covered Glacken, crouching in bushes, saying,

"I just killed him." After continuing to look outside, Conte and

Pizzolo returned to the house, where they found Glacken alone,

behaving erratically, with blood on his back and neck. Soon

after, Glacken spoke by phone to a mutual friend of his and

Conte's, saying that he had stabbed Sullivan with Conte's knife

after Sullivan made sexual advances toward him.

Responding to a call from a neighbor, the police later

found Sullivan's body in the middle of the street. A trail of

blood indicated that he had traveled 266 feet from the point where

he was stabbed. He had been stabbed at least thirty times,

suffering wounds to his heart, lungs and liver. Conte's knife was

found in a nearby lake, where Glacken said he had thrown it. When

the police first arrived, Glacken told them that he and Sullivan

had been attacked by two men, but no evidence was found to support
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the assertion. Glacken was subsequently indicted on a charge of

first degree murder.

 Glacken's defense theory at trial was that the stabbing

was a self-defense response to Sullivan's sexual advances. He did

not testify in his own defense, but a forensic psychologist

retained as a defense expert testified that Glacken had suffered

post-traumatic flashbacks as he broke free from Sullivan's

advances. According to this witness's testimony, the flashbacks

caused Glacken to see two faces in place of Sullivan's: a person

who tried to molest him as a youth, and a man who had beaten him a

month before the stabbing.

The Commonwealth sought a conviction for first degree

murder due to deliberate premeditation or extreme atrocity or

cruelty. Glacken asked the jury to return a manslaughter verdict,

on the grounds that he had used excessive force in self-defense.

The trial judge instructed the jury on first degree murder, second

degree murder, and manslaughter. With respect to Glacken's defense

theory, the court instructed the jury that if the Commonwealth

proved Glacken killed Sullivan with excessive force in selfdefense, then a manslaughter verdict should be returned. Although

the jury rejected the Commonwealth's theory of premeditation, it

convicted Glacken of murder by extreme atrocity or cruelty,

implicitly rejecting the self-defense theory.
The entire instruction was spread over sixty transcript 3

pages. The disputed sentence was part of the following summary:

So, to sum up, in order to prove murder, the Commonwealth

is required to prove beyond a reasonable doubt that the

defendant committed an unlawful killing with malice. If,

after your consideration of all the evidence, you find

that the Commonwealth has proven beyond a reasonable

doubt the elements of murder, except that the

Commonwealth has not proven beyond a reasonable doubt the

absence of mitigating circumstances of heat of passion or

sudden combat, then you must find the defendant not

guilty of murder and you should return a verdict of

guilty of manslaughter. If you find that the

Commonwealth has proven that defendant unlawfully killed

the deceased using excessive force in self-defense, then

you must find the defendant not guilty of murder, and you

should return a verdict of guilty of manslaughter.

Finally, if the Commonwealth has failed to prove that the

defendant unlawfully killed Francis Sullivan, then your

verdict shall be not guilty.

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At issue is the following statement the trial judge made

to "sum up" the possible verdicts: "If you find that the

Commonwealth has proven that the defendant unlawfully killed the

deceased using excessive force in self-defense, then you must find

the defendant not guilty of murder, and you should return a verdict

of guilty of manslaughter." Glacken argues that this sentence

effectively deprived him of his affirmative defense by failing to

instruct the jury that it may not reject self-defense evidence

simply because it was offered by the defendant. In other words,

the quoted portion of the instruction allegedly directed the jury

to look only at the evidence of self-defense offered by the

prosecution. Glacken did not object to the instruction at trial.3
Procedurally speaking, the SJC was reviewing the trial 4

court's denial of Glacken's motion for a new trial, based on the

ineffective assistance claim.

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In his state-court appeal, Glacken raised both the jury

instruction issue and an ineffective assistance of counsel claim

alleging that he was not advised of his right to testify. As

noted, the SJC affirmed the conviction. Because Glacken did not

object to the instruction at trial, the SJC reviewed it under a

"substantial miscarriage of justice" standard. Glacken, 883 N.E.2d

at 1232 (citing Commonwealth v. Niemic, 696 N.E.2d 117 (Mass.

1998)). In rejecting Glacken's ineffective assistance of counsel

claim, the SJC affirmed the trial court's balancing of statements 4

made by defense counsel during trial that indeed he had advised

Glacken of his rights against a conflicting affidavit submitted by

Glacken seven years after the trial stating the opposite.

II.

Glacken's habeas petition claimed that the quoted

instruction violated his due process rights to a fair trial by

precluding the jury from considering his defense and that his trial

counsel's performance was constitutionally deficient. Under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), a federal court shall

not grant a petition for 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
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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)(1)-(2); see O'Laughlin v. O'Brien 568 F.3d 287, 298 (1st

Cir. 2009).

The district court orally rejected Glacken's due process

claim, stating that AEDPA prevented consideration of Glacken's

theory because it depended on an "evolving concept" of due process,

rather than on any particular Supreme Court holding. The district

court also found that it was bound by the SJC's finding that trial

counsel's performance met constitutional standards. We review de

novo the district court's decision to grant or deny a habeas

petition under 28 U.S.C. § 2254. Healy v. Spencer, 453 F.3d 21, 25

(1st Cir. 2006).

III.

Before turning to the substance of Glacken's petition, we

first address the government's argument that habeas review is

precluded because the jury instruction claim was procedurally

defaulted. It is well-settled that we may not consider state court

decisions on habeas review if the decision rests on independent and

adequate state grounds. Obershaw v. Lanman, 453 F.3d 56, 67-68

(1st Cir. 2006)(citing Coleman v. Thompson, 501 U.S. 722, 750

(1991)). One such ground is a state court's finding that a claim
The failure to object is not mentioned within the section of 5

Glacken's appellate brief addressing ineffective assistance of

counsel.

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is forfeited due to a failure to object at trial, which constitutes

an independent and adequate ground "so long as the state court

consistently applies its contemporaneous objection rule and has not

waived it in the particular case by basing the decision on some

other ground." Lynch v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006).

Here, we have no trouble determining that the SJC consistently

applies the rule that contemporaneous objection to a jury

instruction is necessary to avoid forfeiture. See Niemic, 696

N.E.2d at 120; Commonwealth v. Wright, 584 N.E. 2d 621, 624 (Mass.

1992); see also Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir. 2002)

("The SJC regularly enforces the rule that a claim not raised is

waived."). Equally clear is that the SJC did not waive this rule

here. Glacken, 883 N.E.2d at 1232.

The default may be excused only if the petitioner can

demonstrate cause for the default and actual prejudice as a result

of the alleged violation of federal law, or else demonstrate that

the failure to consider the claim will result in a fundamental

miscarriage of justice. Obershaw, 453 F.3d at 68. Glacken's brief

to us, however, does not address the default issue, other than in

a single line in a footnote suggesting that the failure to object

to the instruction at trial was the result of ineffective

assistance of counsel. To the extent this suggestion is an 5
Glacken quotes extensively from Waddington v. Sarasaud, 129 6

S.Ct. 823 (2009), to support his jury instruction claim. That case

is inapposite, however, as it contains no suggestion of procedural

default.

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attempt to demonstrate "cause" for the default, it is plainly

insufficient. See United States v. Zannino, 893 F.2d 1, 17 (1st

Cir. 1990) (issues adverted to in a "perfunctory manner,"

unaccompanied by some effort at developed argumentation are deemed

waived).

Similarly, Glacken makes no attempt to demonstrate that

default would result in a miscarriage of justice, a "narrow

exception to the cause and prejudice imperative seldom to be used,

and explicitly tied to a showing of actual innocence." Burks v.

Dubois, 55 F.3d 712 (1st Cir. 1995); see Simpson v. Matesanz, 175

F.3d 200, 210 (1st Cir. 1999) (petitioner must show probability

that no reasonable juror would have convicted him). Accordingly,

we conclude that Glacken's jury instruction claim was procedurally

defaulted, and we do not reach its merits.6

IV.

Glacken's claim of ineffective assistance of counsel is

premised on allegations that his trial counsel interfered with his

ability to testify by not only failing to inform him of his right

to do so, but also telling him that he would not testify.
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It is beyond dispute that a defendant's right to testify

in his own defense cannot be waived by counsel acting alone. Owens

v. United States, 483 F.3d 48, 58 (1st Cir. 2007). While Glacken's

brief relies on the affidavit he submitted to the state court in

support of his motion for new trial, he makes no mention of the

contrary statements made by defense counsel at trial. The SJC

concluded that "The [trial] judge appropriately relied on trial

counsel's representations at the trial that he had advised his

client of his right to testify. The judge also acted well within

his discretion when he chose not to credit the defendant's

affidavit." Glacken, 883 N.E.2d at 1234-35

In addition, Glacken does not cite Strickland v.

Washington, 466 U.S. 668 (1984), or any other case setting out the

legal standard for evaluating ineffective assistance claims. Nor

does he place the SJC's actions in the context of our limited power

of review, failing to indicate how the SJC's decision on this issue

was contrary to, or an unreasonable application of, clearly

established federal law; or was based on an unreasonable

determination of the facts. While we could consider this claim

waived due to lack of developed argument, see Zannino, 893 F.2d at

17, we briefly address its substance. Glacken's argument boils

down to restating that two parties -- he and his attorney --

provided differing versions of events. In such a case, "the state

trial judge's implicit credibility determinations, adopted by [an
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appellate court], are exactly the type of factual determinations to

which we defer, at least short of any indication of serious error."

Teti v. Bender, 507 F.3d 50, 59 (1st Cir. 2007)(citing Rice v.

Collins, 546 U.S. 333, 341-42 (2006)). No more need be said about

Glacken's futile argument.

The judgment of the district court is affirmed.