* Of the Tenth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-2536

FÉLIX SANTIAGO,

Petitioner, Appellant,

v.

LUIS SPENCER,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Baldock,* Senior Circuit Judge.

Willie J. Davis, with whom Davis, Robinson & White, LLP, were

on brief, for appellant.

Cathryn A. Neaves, Assistant Attorney General, Criminal

Bureau, with whom Thomas F. Reilly, Attorney General, were on

brief, for appellee.

September 22, 2003
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TORRUELLA, Circuit Judge. Petitioner-appellant Félix

Santiago appeals the district court's dismissal of his petition for

a writ of habeas corpus. After careful review of the record, we

affirm.

I. Factual Background

On June 5, 1994, Vilma Flores went to the Carter

Playground in Boston to watch her fiancé play softball. There were

a number of teams playing that day and a crowd of several hundred

people had gathered to watch the games. Shortly after 5:00 p.m.,

Flores walked to the concession stand to buy food. On her way

back, she passed two groups of men exchanging angry words. The

appellant, Félix Santiago, age sixteen, was straddling a bicycle

between parked cars near where the men were arguing.

In a statement to police, Santiago stated that he saw a

rival group of men at the park, and told his friends that the men

were at the playground. Santiago's friend, one of the men who was

later involved in the argument, asked him to "go get something."

At this direction, Santiago left to borrow a gun from a nearby

video store and returned to the scene. After Santiago returned,

the argument between the two men erupted. Apparently, one of the

men in the other group said "Take him out," referring to Santiago's

friend. While it is unknown which side started shooting, the two

groups began shooting at each other. Flores was struck by a bullet
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and killed. An eight year old boy playing nearby was shot in the

leg.

The bullet which killed Flores was never recovered.

Therefore, there was no conclusive forensic evidence as to whether

the bullet that killed her was fired by Santiago or one of the men

in the other group. At trial, the Commonwealth attempted to prove

that the position of Flores when she was shot showed that the fatal

bullet came from Santiago's gun. Santiago argued that the

Commonwealth could not prove who fired the fatal shot, and further

argued that Santiago only began shooting as an act of self-defense.

Based on this evidence, the defendant was adjudicated

delinquent for charges including first degree murder.

II. Procedural History

Santiago's case has a lengthy procedural history in the

Massachusetts state courts. For clarity's sake, we separate our

discussion of Santiago II and III, which concern Santiago's

conviction and the jurisdiction of the juvenile court, from

Santiago IV, which addresses the constitutional issues raised by

Santiago. Thereafter, we examine his subsequent re-trial and

conviction, as well as his habeas petition in the lower courts.

1. Santiago II & III

Santiago appealed his conviction to the Supreme Judicial

Court. Commonwealth v. Santiago, 425 Mass. 491 (1997) (Santiago
1 Prior to Santiago II, Santiago filed an appeal to the SJC

concerning double jeopardy matters not relevant to this habeas

proceeding. Santiago v. Commonwealth, 422 Mass. 1012 (1996)

("Santiago I").

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II).

1 In that appeal, Santiago claimed, inter alia, that the

prosecutor made improper closing arguments and that there was

insufficient evidence to show that Santiago, as opposed to others

engaged in the shootout, fired the bullet that killed Flores.

The SJC reversed Santiago's adjudication of delinquency,

finding that the prosecutor's closing statements were improper and

that the trial court improperly admitted unduly prejudicial and

otherwise irrelevant evidence. At the same time, the SJC rejected

Santiago's sufficiency of the evidence claim, holding that under

Massachusetts law, it did not matter whether Santiago had in fact

fired the shot that killed Flores:

As to the issue whether the defendant

fired the fatal shot, where the defendant

chooses to engage in a gun battle with another

with the intent to kill or do grievous bodily

harm and a third party is killed, the

defendant may be held liable for a homicide

even if it was the defendant's opponent who

fired the fatal shot. Thus the inability to

prove who fired the fatal shot would not be

ground for a directed verdict. The

defendant's acts need not be the sole or

exclusive cause of death . . . . By choosing

to engage in a shootout, a defendant may be

the cause of a shooting by either side because

the death of a bystander is a natural result

of a shootout, and the shootout could not

occur without participation from both sides.
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Santiago II, 425 Mass. at 503-04 (internal citations omitted). The

SJC added a footnote to the quoted text saying that there "is no

bar to the Commonwealth's proceeding at retrial on this theory" of

shootout liability. Id. at 503 n.5.

Nine days after his case was reversed and remanded to the

juvenile court, Santiago, who was sixteen when the shooting

occurred, turned twenty years old. On remand, Santiago moved to

dismiss the indictment on the ground that he had "aged out" of the

Juvenile Court's jurisdiction; that is, the jurisdiction of the

Boston Juvenile Court did not extend to a person who reached the

age of nineteen. See Mass. Gen. Laws ch. 119, § 72 (1994). The

juvenile court denied his motion, and Santiago once again appealed

to the SJC. On April 14, 1998, the SJC reversed the juvenile court

and ordered that Santiago's indictment be dismissed since the

juvenile court no longer had jurisdiction to try him. Santiago v.

Commonwealth, 427 Mass. 298, 302-03 (1998) (Santiago III).

At the time of that appeal, certain Massachusetts

statutory amendments had extended the jurisdiction of the juvenile

court to cover defendants up to age twenty-one for certain crimes

of violence. See Mass. Gen. Laws ch. 119, § 72 (1996). Because,

however, the SJC found that the amendments were "plainly intended

by the legislature to operate prospectively from the date of

passage," the court concluded the amendments could not apply

retroactively to Santiago. Santiago III, 427 Mass at 301.
2 Chapter 98 of St. 1998 provides, in relevant part:

SECTION 3. Notwithstanding any language contained in

[Mass. Gen. L. ch. 119, § 72] relating to the age

limitation for persons over whom the juvenile court may

exercise power and authority . . . the divisions of the

juvenile court department and the juvenile sessions of

the trial courts shall continue to have jurisdiction over

persons whose cases were properly commenced in juvenile

court, regardless of the current age of the person

charged, pending final adjudication of such cases,

including all remands and retrials following appeals from

such cases.

...

SECTION 5. Section 3 of this act shall apply to

complaints filed and indictments returned for offenses

allegedly committed between December 31, 1991 and

September 30, 1996, inclusive.

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Consequently, the SJC ordered the juvenile court to dismiss the

indictment. Id. at 302-03.

Prior to dismissal, a single justice of the SJC stayed

the Santiago III judgment. While the stay was pending, the

Massachusetts legislature enacted new legislation which

specifically and unequivocally granted the juvenile court

jurisdiction over persons twenty-one years or younger so long as

the offense was committed between December 31, 1991, and

September 30, 1996. See 1998 Amendments to Mass. Gen. Laws ch.

119, § 72, St. 1998, ch. 98, §§ 3, 5. ("Chapter 98").2 Based on

the new legislation, the SJC concluded its earlier ruling was no

longer valid. The SJC ordered rehearing on its own motion, and

Santiago challenged the applicability of Chapter 98 to his case.
3 These are the same issues Santiago now raises in his habeas

petition.

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Santiago v. Commonwealth, 428 Mass. 39 (1998), cert. denied, 525

U.S. 1003 (1998) (Santiago IV).

2. Santiago IV

Santiago raised, inter alia, two constitutional issues in

Santiago IV:

3 first, he argued that Chapter 98, which extended the

Juvenile Court's jurisdiction retroactively to cover his case, is

an ex post facto law in violation of art. I, § 9 of the United

States Constitution and art. 24 of the Massachusetts Declaration of

Rights. Second, Santiago claimed that if he were to be retried

under the "shootout liability" theory articulated by the SJC in

Santiago II, it would violate his rights as both ex post facto and

due process violations. Because Santiago's current habeas petition

asks us to determine whether the SJC's resolution of his

constitutional claims comports with federal law, we reproduce the

SJC's reasoning at length.

a. Chapter 98

The SJC concluded that Chapter 98 did not constitute an

ex post facto law. Rejecting Santiago's claim, the court

explained:

In the "primordial" case of Calder v.

Bull, 3 U.S. (3 Dall.) 386 (1798), the Supreme

Court identified four kinds of criminal laws

as ex post facto: "1st. Every law that makes

an action done before the passing of the law,

and which was innocent when done, criminal;
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and punishes such action. 2d Every law that

aggravates a crime, or makes it greater than

it was, when committed. 3d Every law that

changes the punishment, and inflicts a greater

punishment than the law annexed to the crime,

when committed. 4th. Every law that alters

the legal rules of evidence, and receives less

or different testimony than the law required

at the time of the commission of the offence,

in order to convict the offender." (Emphasis

in the original.) See Collins v. Youngblood,

497 U.S. 37, 42-43, 47-52 (1990) (reaffirming

that Calder provides the authoritative

interpretation of the Federal ex post facto

clause and overruling cases to the contrary).

Chapter 98, which extends the Juvenile

Court's jurisdiction, is procedural in nature

and does not fall into any of the Calder

categories. It neither renders previously

innocent conduct criminal, nor retroactively

increases the penalty for a crime, nor alters

the evidentiary standard in such a way as to

make conviction easier. We therefore conclude

that c. 98 is not an ex post facto law under

the Federal or State Constitution.

. . . Thus, there is no reason why the

Legislature may not extend the Juvenile

Court's jurisdiction over pending cases.

Moreover, because there is no statute of

limitations in a murder case, there was no bar

to trying [Santiago] in the Juvenile Court.

At all times, therefore, there was a court

with jurisdiction over [Santiago]. In c. 98,

the Legislature merely added another court.

Accordingly, [Santiago] may be retried in the

Juvenile Court pursuant to c. 98.

Santiago IV, 428 Mass. at 41-42 (citations omitted).

b. Shootout Liability

Santiago also argued that the SJC's determination that he

could be retried under a new prosecution theory (the "shootout

liability" theory) at his retrial violated the ex post facto
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prohibition and due process of law. The SJC summarily rejected

this version of Santiago's ex post facto claim, stating that "[t]he

constitutional prohibition of ex post facto laws is directed

against legislative action only, and does not reach erroneous or

inconsistent decisions by the courts." Id., 428 Mass. at 39

(quoting Stokes v. Commonwealth, 368 Mass. 754, 772 (1975) (quoting

Frank v. Mangum, 237 U.S. 309, 344 (1915))).

Turning to Santiago's due process claim, the court noted

that while the due process clause does prohibit "retroactive

application of a judicial decision '[i]f a judicial construction of

a criminal statute is unexpected and indefensible by reference to

the law which had been expressed prior to the conduct in issue'"

Santiago IV, 428 Mass. at 43 (quoting Stokes, 368 Mass. at 773)

(further citations omitted), its decision to permit Santiago to be

retried under a shootout liability theory "did not change the

substantive law adversely to [Santiago]." Id. at 44. As a result,

the court held that the due process clause does not prohibit

"retrying the juvenile on the [shootout liability] theory." Id. at

44.

Based on these two conclusions, the SJC remanded the case

to the Juvenile Court for retrial. Id. At the new trial, the

prosecution proceeded on the theory that Santiago could be

convicted of murder even if the fatal shot was fired by someone

else during the shootout. Santiago was convicted for murder in the
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second degree. That conviction was affirmed by the Appeals Court

in Commonwealth v. Santiago, 50 Mass. App. Ct. 762 (2001), and the

SJC denied his application for leave to obtain further appellate

review in Commonwealth v. Santiago, 434 Mass. 1104 (2001).

3. The Habeas Petition

Prior to retrial, Santiago petitioned for a writ of

habeas corpus in the district court alleging ex post facto and due

process violations. The district court dismissed the petition

without prejudice, finding that Chapter 98 did not constitute an

invalid ex post facto law, and abstaining on Younger grounds from

deciding whether retrial on the shootout liability theory violated

his right to due process of law. Younger v. Harris, 401 U.S. 37,

46 (1971).

Santiago appealed the dismissal of his petition. On

appeal, we concluded that the district court should have abstained

on Younger grounds from deciding the case at all.

After his final conviction and appeal to the SJC,

Santiago filed a second petition for a writ of habeas corpus on

March 7, 2002. The United States Magistrate Judge hearing his

petition recommended that it be dismissed. The district court

adopted the Magistrate's report and recommendation on November 18,

2002, and dismissed the petition. This appeal followed.
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III. Discussion

Under the standard established by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104,

110 Stat. 1214, 1219 (1996), federal courts may not 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." McCambridge v. Hall, 303 F.3d 24, 34

(1st Cir. 2000) (en banc) (quoting 28 U.S.C. § 2254(d) (Supp. II

1996)) (quotation marks omitted). Thus, habeas relief is available

here only if Santiago can show that the SJC's ex post facto or due

process determinations in Santiago IV were "contrary to" federal

law or involved an "unreasonable application" of the facts to the

correct governing legal rule.

A state court decision is "contrary to" federal law "if

the state court arrives at a conclusion opposite to that reached by

[the Supreme Court] on a question of law or if the state court

decides a case differently than [the Supreme Court] has on a set of

materially indistinguishable facts." Williams v. Taylor, 529 U.S.

362, 412-13 (2000).
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A state decision involves an "unreasonable application"

if the state court identifies the correct governing legal principle

from a Supreme Court decision, but "unreasonably applies that

principle to the facts of the prisoner's case." Williams, 529 U.S.

at 413. The reasonableness test is an objective one; in making its

decision, a federal court must "ask whether the state court's

application of clearly established federal law was objectively

unreasonable." Williams, 529 U.S. at 410-11. While reasonableness

is a fluid concept, we have established some parameters for

evaluating state court application of federal law. As we held in

McCambridge, "if it is a close question whether the state decision

is in error, then the state decision cannot be an unreasonable

application." McCambridge, 303 F.3d at 36. Thus, "some increment

of incorrectness beyond error is required . . . . The increment

need not necessarily be great, but it must be great enough to make

the decision unreasonable in the independent and objective

judgment" of this Court. Id.

1. Ex Post Facto Claims

Santiago cannot show that the SJC's decisions regarding

his ex post facto claims are "contrary to" clearly established

federal law. In deciding whether Chapter 98 was an ex post facto

law, the SJC correctly sought guidance from the "primordial" case

of Calder v. Bull. Santiago IV, 428 Mass. at 41-42 (citing Calder,

3 U.S. 386). The court correctly determined that since Chapter 98
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"neither renders previously innocent conduct criminal, nor

retroactively increases the penalty for a crime, nor alters the

evidentiary standard in such a way as to make conviction easier,"

it does not fall under any of the Calder categories of ex post

facto laws. Santiago IV, 428 Mass. at 41-42. Reaching this

decision, the SJC noted that at all times there was a court with

jurisdiction over the petitioner; there was therefore no barrier

under state or federal law to extending the jurisdiction of any one

of the courts in the Commonwealth over Santiago's case. See

Santiago III, 428 Mass. at 42. Additionally, there are no Supreme

Court cases involving a "set of materially indistinguishable facts"

that are contrary to the outcome in the SJC. See Williams, 529

U.S. at 412-13.

Likewise, the SJC properly rejected Santiago's claim that

his retrial under a new prosecution theory violated the prohibition

against ex post facto laws. As the court correctly noted, the

Supreme Court determined in Frank that "the constitutional

prohibition: 'No state shall pass . . . any bill of attainder, ex

post facto law, or law impairing the obligation of contracts,' as

its terms indicate, is directed against legislative action only,

and does not reach erroneous or inconsistent decisions by the

courts. Frank, 237 U.S. at 344.

The SJC's application of Calder and Frank to Santiago's

claims was neither "contrary to" nor constituted an "unreasonable
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application" of federal law. We therefore leave undisturbed the

SCJ's determinations regarding Santiago's ex post facto claims.

2. Due Process

Santiago also argues that the SJC's retroactive

application of Chapter 98 violated the Due Process Clause.

According to Santiago, the SJC's decision violated standards of

fundamental fairness because he had relied on a particular

interpretation of the law at his original trial permitting him to

claim that he was not guilty because he had not fired the shot that

killed Flores. Because the SJC's decision in Santiago II changed

Massachusetts law, he argues that his retrial under the new

shootout liability theory violated due process.

Santiago cannot show that the SJC's rejection of his due

process claim was contrary to an established Supreme Court rule, or

was an unreasonable application of Supreme Court precedent. He has

not cited a single authority intimating that a change in

prosecutorial theory at retrial violates due process. Moreover, he

did not (and in our opinion, cannot) show that the SJC erred when

it determined that Santiago II "did not change the substantive law

adversely to [Santiago]." Santiago IV, 428 Mass. at 44. Because

Santiago has not shown that he was deprived of a defense to which

he was entitled under Massachusetts law, we will not set aside the

SJC's determination that the prosecution's change of theory did not

violate his due process rights.
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IV. Conclusion

Santiago failed to state a claim upon which relief may be

granted. We therefore affirm the district court's dismissal of his

petition.

Affirmed.