Hon. Sandra Day O'Connor, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 06-2583

RONALD LEFTWICH,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Boudin, Circuit Judge,

O'Connor, Associate Justice (Ret.), *

and Selya, Senior Circuit Judge.

David A.F. Lewis for appellant.

Jessica V. Barnett, Assistant Attorney General, Commonwealth

of Massachusetts, with whom Martha Coakley, Attorney General, was

on brief, for appellee.

July 2, 2008
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SELYA, Senior Circuit Judge. In this appeal, a habeas

petitioner challenges his state-court conviction and ongoing

detention for the murder of a prelate. The appeal poses only a

single question: Was the evidence sufficient, in terms of the Due

Process Clause, to ground a conviction for first-degree murder

either as a principal or as a joint venturer? The district court

answered this question in the affirmative, and so do we.

Because this appeal involves a challenge to evidentiary

sufficiency, we rehearse the facts in the light most compatible

with the jury's verdict, consistent with record support. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Moreover, in a

wrinkle peculiar to the exercise of habeas jurisdiction, we grant

a presumption of correctness to factual determinations made by the

state courts. See 28 U.S.C. § 2254(e)(1).

The saga begins at the same place it ends — a prison.

While incarcerated at the Hampden County House of Corrections,

petitioner-appellant Ronald Leftwich met Bishop Martin Henri. The

bishop, whose charismatic ministry extended to the inmates there,

arranged for the petitioner to join his flock when released from

prison. As part of that arrangement, the petitioner took up

residence on the grounds of the Brothers of Bethany Holy Trinity

Church in Brimfield, Massachusetts. 

Initially, the petitioner performed landscape maintenance

in exchange for bed and board. He soon assumed additional duties
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and, with the bishop's assistance, obtained an additional job with

an independent employer (Strawberry Productions). 

Apart from his killer or killers, the last person to see

Bishop Henri alive was a parishioner who, on the evening of

December 2, 1996, observed him walking toward his residence on the

church grounds. The next morning, the bishop could not be located.

The bishop's nearsightedness was well-known and, after his broken

glasses were found, parishioners called the police. In short

order, state troopers discovered an area of blood-soaked soil and

repastinated turf close to the bishop's residence.

The search widened. Later the same morning, the troopers

discovered the bishop's lifeless body in a ditch some three miles

away. The corpse showed signs of both blunt trauma to the head and

stab wounds to the chest. A medical examiner would later testify

that Bishop Henri had died sometime between midnight and 2:00 a.m.,

and that the stab wounds (which had punctured his left lung) had

been inflicted roughly an hour after the blunt trauma wounds and

while the bishop was still alive.

The petitioner gave a statement to the police in which he

asserted that he had last seen the bishop at 5:45 p.m. on December

2; that he (the petitioner) had retired around 11 p.m.; that he had

awakened at 6:15 a.m.; and that he had begun the day by doing a

load of laundry. When traces of blood were discovered on the

exterior of the petitioner's van, the police asked for the keys.
The latter theory is "essentially an aiding and abetting 1

concept." Stewart v. Coalter, 48 F.3d 610, 614 (1st Cir. 1995);

see Commonwealth v. Ortiz, 679 N.E.2d 1007, 1009 (Mass. 1997)

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At that point the petitioner became evasive and gave the officers

several false leads (e.g., suggesting that the keys might be in the

kitchen or on the ironing board). When the police expressed

frustration, the petitioner gnomically responded: "You'll probably

find your killer if you find those keys."

The petitioner's arrest and the giving of Miranda

warnings, see Miranda v. Arizona, 364 U.S. 436, 444 (1966),

followed. When the petitioner emptied his pockets during booking,

the missing keys appeared. He immediately protested his innocence

with respect to the murder while at the same time inculpating

himself in the disposal of the body: "I did not kill the bishop.

I only helped dump his body, get rid of his body."

A Hampden County grand jury indicted the petitioner for

first-degree murder. At trial, the prosecution's case was largely

circumstantial. The petitioner's statements were entered into

evidence, but he did not testify.

The petitioner moved for a directed verdict at the close

of the prosecution's case in chief and again at the close of all

the evidence. The trial justice denied both motions. She

instructed the jurors that they could find the petitioner guilty on

either of two theories: as a principal or, alternatively, as a

joint venturer. The jury returned a general verdict declaring the 1
(setting out the elements of joint-venture felonies).

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petitioner guilty of first-degree murder. The jurors made no

special finding as to which theory of guilt guided their thought

processes. The trial justice imposed a sentence of life

imprisonment.

On direct appeal, the Massachusetts Supreme Judicial

Court (SJC) affirmed. See Commonwealth v. Leftwich, 724 N.E.2d 691

(Mass. 2000). In its opinion, the SJC rejected a multitude of

contentions, including a challenge to the sufficiency of the

evidence. The court concluded by stating that its review of the

entire record pursuant to Mass. Gen. Laws ch. 278, § 33E, revealed

no reason to disturb the verdict. See Leftwich, 724 N.E.2d at 699.

Eleven months later, the petitioner seasonably repaired

to the federal district court in search of a writ of habeas corpus.

He named as the respondent the commissioner of the Massachusetts

Department of Correction (for ease in exposition, we shall treat

the Commonwealth of Massachusetts as the real party in interest).

The petitioner advanced seven claims of error. The district court

rejected them all. See Leftwich v. Maloney, No. 01-10284, 2006 WL

2883346, at *8 (D. Mass. Oct. 5, 2006). 

Only the disposition of the petitioner's sufficiency

challenge is pertinent here. The district court concluded that the

SJC had not addressed the sufficiency of the evidence under the

relevant federal standard and, therefore, reviewed that claim de
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novo. See id. at *6. The court nevertheless reached the same

conclusion as had the SJC and, in doing so, employed much the same

reasoning. In due course, the district court granted a certificate

of appealability limited to this claim. See 28 U.S.C. § 2253(c);

Fed. R. App. P. 22(b)(1). 

The district court's denial of the insufficiency claim

turns on a purely legal determination and, thus, engenders de novo

review. Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007). We have

construed its certificate to encompass the broad question of

whether the evidence presented at trial was constitutionally

sufficient to convict the petitioner either as a principal or as a

joint venturer. It is to this question that we now proceed.

In criminal cases, the constitutional benchmark for

evidentiary sufficiency is familiar. "If the evidence presented,

taken in the light most flattering to the prosecution, together

with all reasonable inferences favorable to it, permits a rational

jury to find each essential element of the crime charged beyond a

reasonable doubt, then the evidence is legally sufficient." United

States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995) (citing Jackson,

443 U.S. at 319). In conducting a sufficiency analysis, however,

some degree of intellectual rigor is required; a reviewing court

should not give credence to "evidentiary interpretations and

illations that are unreasonable, insupportable, or overly
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speculative." United States v. Spinney, 65 F.3d 231, 234 (1st Cir.

1995).

Once a state court has passed upon the merits of a

sufficiency challenge in accordance with the appropriate federal

constitutional standard, a federal habeas court's review becomes

incrementally more nuanced. Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214, the state court's application "of clearly established Federal

law, as determined by the Supreme Court of the United States," will

trigger issuance of the writ only if it constitutes "an

unreasonable application" of that law. 28 U.S.C. § 2254(d)(1).

Thus, "[t]he habeas question of whether the state court decision is

objectively unreasonable is layered on top of the underlying

standard governing the constitutional right asserted." Hurtado v.

Tucker, 245 F.3d 7, 16 (1st Cir. 2001). In such a situation, then,

the state court's decision is not vulnerable unless it evinces some

increment of incorrectness beyond mere error. McCambridge v. Hall,

303 F.3d 24, 36 (1st Cir. 2002) (en banc).

Here, however, there is a threshold question about

whether the state court in fact passed upon the merits of the

federal constitutional claim; the SJC addressed the sufficiency of

the evidence supporting the conviction exclusively in the

vocabulary of state law and precedent. That leads to a further

refinement. We have held that a state-court adjudication of an
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issue framed in terms of state law may receive section 2254(d)(1)

deference so long as the state standard is at least as protective

of the defendant's rights as its federal counterpart. Thus, 

[i]f there is a federal or state case that

explicitly says that the state adheres to a

standard that is more favorable to defendants

than the federal standard (and it is correct

in its characterization of the law), we will

presume the federal law adjudication to be

subsumed within the state law adjudication.

Id. at 35; see White v. Coplan, 399 F.3d 18, 23 (1st Cir. 2005)

(explaining that a federal habeas court may "infer that the federal

claim was considered if the state court rejects a counterpart state

claim and then cites to a case holding that the federal

constitution provides no greater protection").

In addressing the sufficiency of the evidence

undergirding the joint venture theory, the SJC relied on a series

of Massachusetts precedents harking back to its seminal decision in

Commonwealth v. Latimore, 393 N.E.2d 370 (Mass. 1979). Because the

Latimore court adopted the governing federal constitutional

standard as the Massachusetts standard for sufficiency of the

evidence challenges, see id. at 374 (citing Jackson, 443 U.S. at

318-19), we can securely reason that in scouring the record for

Latimore error and finding none the SJC effectively answered the

federal constitutional question.

The same cannot be said about the SJC's treatment of the

petitioner's guilt qua principal. The SJC did not review that
This conclusion is fortified by what happened here. The SJC 2

did not explicitly address the sufficiency of the evidence as to

the petitioner's guilt qua principal; it merely said that "nothing

. . . compels us to exercise our discretion to disturb the jury's

verdict." Leftwich, 724 N.E.2d at 699.

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aspect of the case on the merits but, rather, solely in pursuance

of its statutory duty to guard against miscarriages of justice.

See Mass. Gen. Laws ch. 278, § 33E (empowering the court to grant

relief "if satisfied that the verdict was against the law or the

weight of the evidence"). The SJC acts under this statute with the

benefit of substantial discretion, equivalent to that of a trial

judge adjudicating a motion for a new trial. See Commonwealth v.

Hurley, 461 N.E.2d 754, 757 (Mass. 1984); see also Commonwealth v.

Pring-Wilson, 863 N.E.2d 936, 947 & n.14 (Mass. 2007). Given that

discretion, its refusal to set aside a verdict under section 33E

does not necessarily denote that it actually decided the Jackson

issue. With respect to that theory, then, we cannot grant the

SJC's decision the deference that section 2254(d)(1) envisions.2

Rather, de novo review obtains on that issue. 

This brings us to a crossroads. On federal habeas review

of a state-court conviction that potentially rests on dual theories

of guilt, the writ will not issue as long as one of the two

theories is adequately supported. See Brown v. Maloney, 267 F.3d

36, 44 (1st Cir. 2001). This construct stems from applicable

federal law, which holds that when parallel theories are submitted

to a criminal jury antecedent to a general verdict of guilty, the
Because that theory is adequately supported, see text infra, 3

our analysis ends there. We add parenthetically that the evidence

also appears sufficient to sustain the petitioner's conviction as

a joint venturer. No useful purpose would be served, however, by

providing a detailed exegesis of the reasoning on which this

conclusion rests.

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verdict should be upheld as long as there is sufficient evidence to

validate either of the theories presented. United States v.

Griffin, 502 U.S. 46, 60 (1991); United States v. Moran, 393 F.3d

1, 14-15 (1st Cir. 2004). We opt here to start by addressing the

sufficiency of the evidence supporting the petitioner's guilt as a

principal.3

Massachusetts defines first-degree murder in pertinent

part as "[m]urder committed with deliberately premeditated malice

aforethought, or with extreme atrocity or cruelty." Mass. Gen.

Laws ch. 265, § 1. Although the petitioner baldly proclaims that

he does not concede any element of the crime, he makes no developed

argumentation about anything other than the killer's identity.

Consequently, we consider any other challenges to be foregone. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

(explaining that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived").

As to the killer's identity, the petitioner argues that

the evidence supported no more than a finding that he was an

accessory after the fact. The lone issue, therefore, is whether
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the evidence sufficed to show that the petitioner was a principal

rather than a mere accessory, i.e., that it was he who killed (or

participated in killing) the bishop.

The petitioner's confession is central to this inquiry.

While his direct admission is limited to a role in disposing of the

body, that admission places him at the ditch. There was credible

evidence from which the jury could have found that the murder

occurred there. Given those two facts, a mass of other information

suggested that it was the petitioner who delivered the stab wounds

and that his carefully circumscribed admission comprised a

deliberate minimization of his role in the crime. No more is

exigible to ground a conviction for first-degree murder.

We discuss first the evidence indicating that Bishop

Henri perished at the ditch. To begin, a medical examiner

testified that the stab wounds preceded the bishop's demise by

fifteen minutes at the most and that, while still alive, the bishop

sustained abrasions consistent with being dragged across the

terrain adjacent to the ditch. Finally, a dense pooling of blood

near the ditch suggested that the bishop was stabbed there. 

In view of the distance between the church and the ditch,

a rational jury could have inferred from this evidentiary array

that the fatal wounds were inflicted near the ditch. Relatedly,

this evidence entitled the jury to infer that the petitioner could

not have participated in the disposal of the body without also
A Leatherman tool is a brand-name utility knife, resembling 4

a butterfly knife, that is the functional equivalent of a Swiss

Army knife.

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having been present during the fatal stabbing. On this rationale,

then, the petitioner's acknowledged role in the dumping of the body

became powerful evidence of his involvement in the murder itself.

The physical evidence at the church grounds was

consistent with this conclusion. For instance, round blood

droplets on the flagstone walkway were difficult to reconcile with

a hemorrhaging body being dragged across that walkway. There was,

moreover, evidence from which the jury could have concluded that

the wounded bishop had been moved by wheelbarrow at the church

site, not dragged. 

The inference of the petitioner's likely involvement in

the murder was strengthened by proof that on the day of the killing

the police recovered a Leatherman tool from him. According to 4

expert testimony presented at the trial, the tool's length and

width were consistent with the dimensions of the bishop's chest

wounds. Although the petitioner counters that the weapon itself

lacked traces of blood, the absence of blood seems to be of dubious

probative value in light of other evidence that the petitioner

embarked on a wide-ranging cleaning spree shortly before his

arrest. Knowing that the petitioner had washed blood out of his

van, off of his person, and off of his clothes, the jury was free

to infer that he had washed the Leatherman tool as well. 
The petitioner emphasizes that the wounds were free of 5

contusions and suggests the Leatherman tool's three-inch blade

could not have created the four-inch-deep gouges in the bishop's

lung without substantial bruising of the skin. But there is no

basis in this record for such biomechanical certitude, and the

petitioner's suggestion is mere speculation.

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To be sure, the petitioner notes the absence of any

direct evidence that the Leatherman tool was the actual murder

weapon. This observation does not get the petitioner very far.

The medical examiner testified that the tool was "consistent" with

the stab wounds, and the jurors were entitled to draw a reasonable

inference that it was the murder weapon.5

Forensic evidence reinforces the inference that the

petitioner murdered the bishop. This includes evidence of the

victim's blood in the petitioner's van; evidence of a fingerprint,

confirmed as the petitioner's, in that blood; evidence of the

victim's blood on the petitioner's shoe; evidence of the victim's

blood on the washing machine used by the petitioner; traces of

occult blood, imperceptible to the naked eye, on the petitioner's

clothes and hands; and traces of occult blood on the keys to the

van.

In our view, the Commonwealth's case also drew sustenance

from the petitioner's persistent prevarications. These lies

included both his initial denial of any knowledge about the

bishop's death and his subsequent waffling about the whereabouts of

the keys to his van. These demonstrated falsehoods called into
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play the principle that if the jury disbelieves a defendant's

story, it may legitimately presume that the fabrication was an

indicium of his guilt. See United States v. Jimenez-Perez, 869

F.2d 9, 11 (1st Cir. 1989); cf. Wright v. West, 505 U.S. 277, 315

(1992) (O'Connor, J., concurring) ("It is utterly reasonable to

conclude that a possessor of recently stolen goods who lies about

where he got them is the thief who took them."). 

Then, too, the Commonwealth proffered some evidence of

motive. According to unrebutted testimony, during the months

before the murder the petitioner ran up substantial debt by using

a company credit card to fund a gambling binge. These witnesses

said that Bishop Henri reacted adversely when he learned of this

peccadillo. While this motive evidence is not particularly robust

and the petitioner was able to point to other testimony indicating

that he and the bishop were on good terms shortly before the

murder, it was within the jury's province to decide whether the

petitioner's misconduct remained a bone of contention. See United

States v. Cruz-Arroyo, 461 F.3d 69, 74 (1st Cir. 2006); United

States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990). 

Last — but perhaps not least — the record is barren of

any evidence as to who besides the petitioner could have inflicted

the fatal stab wounds. This lack of any evidence pointing

elsewhere bolstered the inference that it was the petitioner who

slew the bishop. See Stewart v. Coalter, 48 F.3d 610, 615 (1st
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Cir. 1995) (explaining that "a conjecture consistent with the

evidence becomes less and less a conjecture, and moves gradually

toward proof, as alternative innocent explanations are discarded or

made less likely"). 

The petitioner tries to tear holes in this tightly

threaded tapestry of turpitude. He asseverates that the paucity of

blood at the ditch site and in the van indicate that death must

have occurred before the body was transported from the church

grounds. The difficulties with this asseveration are twofold: the

record does not validate the first of the component claims; and the

second proves nothing. We explain briefly.

Through the testimony of a forensic chemist and a police

sergeant, the prosecution showed substantial blood accumulation at

the ditch site. Nothing in the record tends to impeach the

credibility of those witnesses in any material way. Thus, we have

no principled choice but to assume that the jury chose to credit

that testimony. See United States v. O'Brien, 14 F.3d 703, 707

(1st Cir. 1994). 

The absence of large quantities of blood in the van is

unremarkable. The prosecution introduced evidence showing that

the petitioner had washed the van's interior after using the

vehicle as a means of transporting the wounded man. Thus, a

rational juror need not have raised an eyebrow at the minimal

quantity of blood remaining.
We say "normally" because it may be possible to supplement 6

the record on occasion with, say, evidence that was not

discoverable through due diligence at the time of the original

trial, see 28 U.S.C. § 2254(e)(2); Brown v. Farwell, 525 F.3d 787,

793-94 (9th Cir. 2008), or evidence establishing actual innocence.

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In a last-gasp effort to impugn the verdict, the

petitioner strives to rebut the medical examiner's testimony with

evidence (e.g., grand jury minutes and a police report) not

presented to the trial jury. That effort is jejune: in passing

upon the sufficiency of the evidence, a federal habeas court

normally must take the state-court record as it stands. See 6

Jackson, 443 U.S. at 324; Eady v. Morgan, 515 F.3d 587, 601 (6th

Cir. 2008); see also United States v. Mergerson, 4 F.3d 337, 348

n.14 (5th Cir. 1993) (holding that testimony not admitted into

evidence before the jury cannot be considered for the purposes of

sufficiency review). The petitioner has identified no valid basis

for supplementation of the evidentiary record here. 

To sum up, the state-court jury had before it the

petitioner's admission that he had disposed of the bishop's body,

evidence from which it could infer that he was present at the time

and place of the slaying, evidence of a serviceable murder weapon

in the petitioner's possession, evidence of a furtive attempt to

clean up telltale blood, evidence of motive, evidence of the

petitioner's mendacity, and no evidence suggesting an alternative

scenario for the homicide. The jury also had before it the

petitioner's self-fulfilling prophecy that when the officers found
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the keys to the van they would simultaneously find the bishop's

killer. On the whole of this record, the jury was entitled —

though not compelled — to conclude beyond any reasonable doubt

that the petitioner was guilty of first-degree murder as a

principal. Thus, the evidence was constitutionally sufficient

(indeed, ample) to ground the petitioner's conviction. See

Spinney, 65 F.3d at 234 (holding that "[r]eliance on indirect, as

opposed to direct, evidence in a criminal case is both permissible

and commonplace").

We need go no further. While the petitioner, ably

represented, has struggled mightily to develop a plausible theory

of innocence, that struggle proves fruitless. In order to pass

muster under sufficiency principles, evidence need neither compel

a finding of guilt nor rule out every hypothesis inconsistent with

a guilty verdict. See United States v. Dwinells, 508 F.3d 63, 74

(1st Cir. 2007); United States v. Sawyer, 85 F.3d 713, 733 (1st

Cir. 1996). It is enough if the evidence, when viewed favorably

to the verdict, establishes every element of the offense of

conviction beyond a reasonable doubt. Although the prosecution's

case here is not airtight — few cases ever are — the record leaves

a rational juror more than enough room to draw inferences that

adequately support a finding of guilt. Accordingly, the district

court did not err in refusing to issue a writ of habeas corpus. 
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Affirmed.