United States Court of Appeals 

For the First Circuit 

No. 18-1862 

JOSENER DORISCA, 

Petitioner, Appellant, 

v. 

RAYMOND MARCHILLI, 

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, Chief Judge, 

Thompson and Barron, Circuit Judges. 

Andrew S. Crouch for appellant. 

Thomas E. Bocian, Assistant Attorney General, with whom Maura 

Healey, Attorney General of Massachusetts, was on brief, for 

appellee. 

October 23, 2019 
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THOMPSON, Circuit Judge. After a jury convicted 

Petitioner Josener Dorisca ("Dorisca") of second-degree murder, he 

was sentenced to life in prison with the opportunity of parole 

after fifteen years. When his state court appeals were denied, he 

turned to the federal court: seeking a writ of habeas corpus, 28 

U.S.C. § 2254, in the United States District Court for the District 

of Massachusetts, he alleged a violation of his right to 

confrontation and a violation of due process. The district court 

denied the petition, and now before this court, Dorisca challenges 

that dismissal. After due consideration, and bound by the tight 

(to say the least) parameters of the Antiterrorism and Effective 

Death Penalty Act ("AEDPA"), we affirm. 

BACKGROUND

As we lay out the relevant facts and travel, we are 

mindful that, "[w]hen we consider a state conviction on habeas 

review, we presume the state court's factual findings to be 

correct." Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014) 

(citing Abram v. Gerry, 672 F.3d 45, 46 (1st Cir. 2012)). Where 

the highest state court -- in this case, the Massachusetts Supreme 

Judicial Court -- has denied review, we are to "look through to 

the last reasoned decision" issued by the Massachusetts Appeals 

Court ("MAC"). King v. MacEachern, 665 F.3d 247, 252 (1st Cir. 

2011) (quoting Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 

2010)). So the factual narrative below is derived from the 
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decision of the MAC, Commonwealth v. Dorisca, 42 N.E.3d 1184 (Mass. 

App. Ct. 2015), and the district court's decision, Dorisca v. 

Marchilli, No. CV 17-10376-FDS, 2018 WL 3974784, at *1 (D. Mass. 

Aug. 20, 2018), which drew from the MAC's decision too. 

Dorisca and Bensney Toussaint ("Toussaint") attended a 

June 8, 2008 graduation cookout in Brockton, Massachusetts, and 

that's where the ultimately deadly physical altercation between 

the two men went down. Toussaint was romantically involved with 

the mother of Dorisca's two children at the time, and Dorisca and 

Toussaint had been involved in at least one previous dust-up. 

Toussaint instigated a physical fight with Dorisca, and the ensuing 

brawl ended with Toussaint on the ground with multiple gunshots to 

the chest and head. His wounds proved deadly -- Toussaint was 

taken to a nearby hospital, but was pronounced dead upon arrival. 

Dorisca bolted, leaving Massachusetts and hiding out in 

Florida for two and a half years before being arrested on unrelated 

charges in 2011 (which led to the discovery of the outstanding 

warrant for his arrest in Massachusetts). 

Discovery, Trial, Conviction, and Appeals 

Dorisca was charged with first-degree murder, and the 

facts underpinning his claims before us transpired over the course 

of the weeks leading up to trial, during trial, and in closing 

arguments, so we next provide an overview of those happenings (with 

additional detail to follow later). 
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Two months out from trial, the Commonwealth moved to 

continue because one of its witnesses, medical examiner Dr. 

Kimberley Springer ("Dr. Springer"), would be on maternity leave 

as of the scheduled date of the trial and, as a result, would not 

be able to testify at trial. The trial judge denied the motion 

(without prejudice), then instructed the Commonwealth to find a 

substitute witness. Within a matter of weeks, the Commonwealth 

moved for a continuance on a new, but related basis: the digital 

photographs from Toussaint's autopsy apparently had been 

corrupted, and they were unavailable for examination by a 

substitute medical examiner. Like the motion before it, that one 

was denied without prejudice, this time to give Dorisca time to 

decide whether he would waive his confrontation clause rights, 

which he ultimately declined to do. So the Commonwealth moved to 

conduct a deposition of Dr. Springer. The motion was allowed, and 

Dr. Springer was deposed on videotape in a courtroom before the 

trial judge.1 Dorisca's attorney was present and had an 

opportunity to ask questions. 

The case proceeded to trial in March of 2013, and five 

days into it, the Commonwealth moved to introduce the videotaped 

deposition of Dr. Springer into evidence. Based on the 

Commonwealth's report four days earlier that Dr. Springer had gone 

 1 We'll discuss the substance of her deposition testimony 

later. 
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into labor, the trial judge found that Dr. Springer was unavailable 

to testify, and -- over Dorisca's objection as to the doctor's 

unavailability -- allowed the videotaped deposition to be played 

for the jury. This witness-availability saga forms the basis for 

the first of Dorisca's habeas arguments now before us. 

Next up, closing arguments, during which the prosecutor 

made two misstatements. These misstatements (and the trial judge's 

handling of them) constitute the second basis for Dorisca's appeal. 

First misstatement: 

You heard [Dorisca's] testimony; he's not face up. He 

says he's face down, all these men are kicking him and 

at the time he wants you to believe that Bensney 

Toussaint is slamming his head in the ground. But then 

he says I can still see Rodley Doriscat[, Dorisca's 

cousin and fellow cookout-goer,] come up, poke Bensney 

with the gun. I can see Bensney reach for it and then 

I see Rodley shoot him. 

Is that credible? Is it reasonable that someone with 

his face down can miraculously now see Rodley Doriscat 

allegedly shooting to protect him? No. But he needs it 

to be credible. Why? He needs to corroborate the 

confession. 

Dorisca objected because he never testified that he saw Rodley2

shoot Toussaint (no one disputes this was a misstatement). Rather, 

Dorisca had testified that he saw Rodley running away with a gun. 

He also testified that Rodley later explained to Dorisca that he 

had poked Toussaint with the gun (in an effort to get Toussaint 

 2 Rodley -- who we refer to by first name to avoid confusion 

-- committed suicide about three years before trial, having never 

gone to the police as Dorisca testified Rodley told him he would. 
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off Dorisca, he said), but when Toussaint grabbed Rodley's wrist, 

Rodley shot him. 

The next prosecutorial misstep (undisputedly a 

misstatement, like the one before it) came when the prosecutor 

mischaracterized how Dorisca had testified regarding the arresting 

event in Florida. Specifically, in the course of being picked up, 

Dorisca was a passenger in a car that was stopped by a police 

officer. During closing, the prosecutor stated that Dorisca 

testified that the officer asked for Dorisca's name before 

requesting the driver's name. The prosecutor told the jury, "[t]he 

defendant says that he is stopped and [the officer] asks him first, 

not the driver who is stopped, but the passenger what his name 

was." Dorisca objected because what Dorisca actually said was 

that the officer questioned the driver, then asked for Dorisca's 

name, and although Dorisca initially gave the officer his real 

name, the officer did not believe him (thinking that Dorisca, like 

the driver, should have a Haitian-sounding name (whatever that 

means)), so Dorisca offered him a fake name instead. At some 

point, Dorisca moved for a mistrial on the basis of these 

misstatements, but it is unclear from the record precisely when 

that motion was made. 

Before sending the jury out, the trial judge gave the 

jury the standard instruction that closing arguments are not 

evidence. The jury convicted Dorisca of second-degree murder. 
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As we already mentioned, Dorisca appealed his conviction 

to the MAC, but that appeal was unavailing -- the MAC concluded 

that, despite what it deemed an error in designating Dr. Springer 

"unavailable," the admission of the videotaped deposition was 

harmless, and further, the misstatements by the prosecution in 

closing were not prejudicial and not significant in view of the 

evidence as a whole.3 Dorisca, 42 N.E.3d at 1192-93, 1193 n.19. 

The Supreme Judicial Court of Massachusetts denied without a 

written opinion Dorisca's application for leave to obtain further 

appellate review. Commonwealth v. Dorisca, 48 N.E.3d 464 (Mass. 

2016). 

Out of options in the state court system, Dorisca 

petitioned the federal district court for habeas relief, 28 U.S.C. 

§ 2254, arguing violations of his right to confrontation (based on 

the admission of Dr. Springer's videotaped deposition testimony) 

and of due process (based on what Dorisca characterizes as 

prejudicial misstatements of evidence during closing arguments),4

 3 We will not recount each of the appellate contentions 

Dorisca has advanced since his trial because only two are before 

us on appeal, as we will explain. 

4 We note that Dorisca initially advanced three grounds for 

habeas relief -- (1) the violation of his right to confrontation 

of a witness, (2) violation of due process by denying his motion 

for mistrial due to misstatements of evidence during the state's 

closing, and (3) violation of due process in allowing repetitious 

testimony into evidence -- but the state moved to dismiss the 

entire petition because ground (3) had not been exhausted. The 

district court stated that it would grant the motion to dismiss 

unless Dorisca moved to dismiss the unexhausted claim, and when he 
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but the district court, concluding that the MAC's harmlessness 

determination as to the challenged deposition testimony was 

appropriate and the MAC's decision with respect to the 

prosecutorial misconduct did not run afoul of Supreme Court 

precedent, dismissed the petition (granting a certificate of 

appealability). Dorisca challenged that dismissal, which brings 

us to the appeal now before us. 

DISCUSSION 

The district court did not hold an evidentiary hearing 

(nor was it asked to), so it made no factual findings of its own. 

As such, our review of the district court's dismissal of the habeas 

petition is de novo. See Bebo v. Medeiros, 906 F.3d 129, 134 (1st 

Cir. 2018), cert. denied, 139 S. Ct. 1203 (2019) (citing Pike v. 

Guarino, 492 F.3d 61, 68 (1st Cir. 2007)). "Like the district 

court, however, we are required to afford significant deference to 

the state court's decision under most circumstances." Lucien v. 

Spencer, 871 F.3d 117, 122 (1st Cir. 2017) (citing Scoggins v. 

Hall, 765 F.3d 53, 57 (1st Cir. 2014)). 

Before turning to Dorisca's arguments, we provide the 

big-picture legal framework that will shape our analysis. Just 

like the district court's review of Dorisca's habeas petition, 

 

did so, the district court granted that motion. So Dorisca 

ultimately pursued only grounds (1) and (2) before the district 

court. Those are the sole grounds here on appeal. 
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ours is shepherded by AEDPA. 28 U.S.C. § 2254. As an overarching 

matter, under AEDPA, "error by a state court, without more, is not 

enough to warrant federal habeas relief." Bebo, 906 F.3d at 134 

(quoting Cronin v. Comm'r of Prob., 783 F.3d 47, 50 (1st Cir. 

2015)). Indeed, as relevant here, a state court decision may be 

overturned on habeas review only when a petitioner demonstrates 

that the state court's adjudication on the merits of his claims 

resulted in a decision that is "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)(1). We've observed that AEDPA's "standards ensure that 

federal habeas relief will be granted only in cases in which all 

fairminded jurists would agree that a final state court decision 

is at odds with the Supreme Court's existing precedents." Bebo, 

906 F.3d at 134 (citing Harrington v. Richter, 562 U.S. 86, 102 

(2011)). Indeed, "[t]he more general the rule, the more leeway 

courts have in reaching outcomes in case-by-case determinations." 

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). As such, a 

habeas petitioner must show "the state court's ruling on the claim 

. . . was so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility 

for fairminded disagreement." Linton v. Saba, 812 F.3d 112, 123 

(1st Cir. 2016) (quoting Harrington, 562 U.S. at 103). 
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This first layer of set-up complete, we turn to the 

specifics of Dorisca's two claims before us: (1) his right to 

confrontation was violated when, in an unreasonable application of 

federal law resulting in prejudicial error, the deposition 

testimony of Dr. Springer was admitted without an adequate showing 

that she was unavailable to testify at trial; and (2) his dueprocess rights were violated when his mistrial motion -- based on 

the misstatements of evidence during closing arguments and the 

trial judge's response to them -- was denied. 

1. Admission of Dr. Springer's deposition testimony and the 

MAC's harmlessness determination 

Dorisca argued that the trial court's admission of Dr. 

Springer's deposition (premised on an erroneous unavailability 

determination) violated his right to confrontation, and the MAC 

agreed, finding error in the trial judge's unavailability 

determination. But the MAC reasoned that the error was a harmless 

one (more on this shortly), and it is this harmlessness 

determination that Dorisca tells us the MAC got wrong.5 He says 

the error was not harmless in that, without live cross-examination, 

his ability to challenge the case against him was substantially 

prejudiced, particularly as to who pulled the trigger and the 

 5 Dorisca never truly fleshes out exactly how it is that the 

MAC's harmlessness determination was an unreasonable application 

of federal law (nonetheless we work with the arguments he does 

offer in support of his proposition that the MAC's "decision was 

unreasonable"). 
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trajectory of the gunshots. He could not fully and effectively 

explore these topics -- especially the "intermediate range" piece 

-- in the course of Dr. Springer's deposition because he did not 

yet have the full picture of wholly developed facts. And the jury 

was left with no way to assess Dr. Springer's credibility and 

reliability. At oral argument, Dorisca said the deposition had 

been approached more like traditional discovery rather than as 

something that would be introduced at trial: counsel told us he 

figured the deposition wouldn't be defense counsel's "last shot at 

Dr. Springer." Dorisca has not explained why it was reasonable 

for him to believe defense counsel would have another opportunity 

to examine Dr. Springer when the trial judge had demonstrated clear 

intractability when it came to moving the trial date to ensure her 

availability, but this is his position. 

Meanwhile, the Commonwealth asserts that even if there 

was a confrontation clause violation, the MAC did not unreasonably 

apply federal law in reaching its conclusion that any such error 

was a harmless one.6 Running through factors set forth in the 

relevant clearly established federal law, which is Delaware v. Van 

Arsdall, 475 U.S. 673, 684 (1986), the Commonwealth tells us, inter 

alia, that Dr. Springer's testimony was "largely redundant of other 

 6 The Commonwealth tells us that the MAC's decision was not 

contrary to Supreme Court precedent (another of AEDPA's grounds 

for habeas relief, remember) -- but since Dorisca himself never 

argues that point, we don't go there. 
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evidence" and that her testimony regarding the intermediate 

shooting range "actually redounded to the benefit of" Dorisca since 

it empowered him to press the theory that the shooter was someone 

farther away from Toussaint than Dorisca had been. The 

Commonwealth also notes that Dorisca's arguments with respect to 

the prejudice he says he suffered are speculative. 

So let's turn to the merits. At the heart of Dorisca's 

claim for habeas relief here is the Sixth Amendment's guarantee 

that "[i]n all criminal prosecutions, the accused shall enjoy the 

right . . . to be confronted with the witnesses against him." U.S. 

Const. amend. VI. The Supreme Court in Davis v. Washington, 547 

U.S. 813, 821 (2006), held that this provision "bars 'admission of 

testimonial statements of a witness who did not appear at trial 

unless he was unavailable to testify, and the defendant had had a 

prior opportunity for cross-examination.'" Id. (quoting Crawford 

v. Washington, 541 U.S. 36, 53-54 (2004)). 

Recall that the trial judge here had deemed Dr. Springer 

unavailable, a determination he arrived at based on the 

Commonwealth's report several days earlier that she was in labor. 

That ruling in place, the prosecutor offered, and the trial judge 

allowed into evidence, Dr. Springer's videotaped deposition in 

which she testified about Toussaint's wounds and cause of death. 

In the course of her testimony, she explained that the gunshots to 

Toussaint's chest caused his death, and she believed the wounds 
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were not so-called "close" wounds, but rather they were caused by 

gunshots fired from a distance of "a couple of inches to a few 

feet away," or from "intermediate range." 

When the case reached the MAC, it had the benefit of a 

new framework handed down to it by the Commonwealth's high court 

that "clarified the requirements for a judicial determination of 

unavailability." Dorisca, 42 N.E.3d at 1189 (citing Commonwealth 

v. Housewright, 25 N.E.3d 273, 281 (Mass. 2015)). Long story 

short, Dorisca's trial judge's unavailability determination fell 

short: the trial judge did not have (or inquire about) up-to-date 

information about Dr. Springer's condition and had failed to either 

consider whether she could appear later in the trial or to 

entertain a short continuance to accommodate her current 

unavailability, so the MAC concluded that the admission of the 

deposition violated Dorisca's right to confrontation. Id. at 1191. 

From there, the MAC pivoted to a Chapman v. California, 

386 U.S. 18 (1967), harmless-beyond-a-reasonable-doubt analysis 

because even though this constitutional right was violated, it 

does not automatically follow that Dorisca was entitled to relief, 

see, e.g., Glebe v. Frost, 574 U.S. 21, 23 (2014) (per curiam) 

("Most constitutional mistakes call for reversal only if the 

government cannot demonstrate harmlessness[,] Neder v. United 

States, 527 U.S. 1, 8 (1999)[, while] [o]nly the rare type of error 

. . . requires automatic reversal."). So the MAC queried: the 
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unavailability determination was an error (resulting in a 

confrontation clause violation), but was it a harmless one? 

Dorisca, 42 N.E.3d at 1191 (Commonwealth v. Marini, 378 N.E.2d 51, 

58 (Mass. 1978), which quotes Chapman, 386 U.S. at 24). The MAC 

answered that question in the affirmative -- it was a harmless 

error because: the central factual dispute was the identity of 

the shooter, and Dr. Springer's testimony had no bearing on that 

question because nothing in her testimony made it more likely that 

the shooter was Dorisca; only passing reference was made to her 

testimony in closing argument -- for both sides; Dorisca actually 

relied on her intermediate range testimony to support his position 

that the shooter was Rodley; Dorisca had not pointed the MAC to 

any testimony by Dr. Springer that was "essential to the 

Commonwealth's case or significant to the jury's resolution of the 

defendant's guilt"; Dr. Springer's testimony was cumulative, not 

significant or indispensable; and Dorisca "thoroughly crossexamined Dr. Springer at her deposition, and there is no indication 

that either her testimony or the defense strategy on crossexamination would have differed at trial." Dorisca, 42 N.E.3d at 

1192 (collecting cases applying Chapman or Chapman-style harmlesserror analysis in this context). 

Our job is to scrutinize the harmlessness determination. 

"[W]hen a state court determines that a constitutional violation 

[here, the confrontation clause violation stemming from the faulty 
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unavailability determination] is harmless [under Chapman, 386 U.S. 

at 24], a federal court may not award habeas relief under § 2254 

unless the harmlessness determination itself was unreasonable."7 

Fry v. Pliler, 551 U.S. 112, 119 (2007) (citing Mitchell v. 

Esparza, 540 U.S. 12 (2003) (per curiam)). Indeed, the critical 

inquiry is whether the MAC's harmlessness determination was 

reasonable; we do not perform our own harmlessness analysis. 

We conclude that Dorisca has not met his burden on the 

threshold issue of whether the harmlessness determination stemmed 

from an unreasonable application of Supreme Court law. We explain. 

In looking de novo at the MAC's harmlessness 

determination, we keep in mind that an unreasonable application of 

 7 In Chapman, the Court "articulated the constitutional 

harmless error standard, which provides that, on direct appellate 

review, an error at trial affecting the defendant's constitutional 

rights will be deemed harmless only if it can be shown to be 

harmless beyond a reasonable doubt." Connolly v. Roden, 752 F.3d 

505, 509 (1st Cir. 2014), cert. denied, 135 S. Ct. 960 (2015) 

(citing Chapman, 386 U.S. at 24). 

Our court has explained that, "when a state court decides 

that a constitutional error is harmless beyond a reasonable doubt 

under Chapman, a federal court on habeas review may choose between 

two equally valid options" in undertaking its review: ask under 

AEDPA whether the harmlessness determination was an unreasonable 

application of Chapman, and only if it was may we move on to ask 

whether actual prejudice resulted; or begin directly with the 

actual-prejudice question. Connolly, 752 F.3d at 511; see also 

Fry v. Pliler, 551 U.S. 112, 120 (2007). 

Truth be told, there's more background to all of this, and we 

would urge the curious reader to check out Connolly for a helpful 

account of Supreme Court pronouncements regarding our review in 

this arena. For our purposes today, though, we need not replicate 

the entire history Connolly lays out. 
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federal law happens when a state court "identifies the correct 

governing legal principle from the Supreme Court's then-current 

decisions but unreasonably applies that principle to the facts of 

the prisoner's case." Hensley, 755 F.3d at 731 (quoting Abrante 

v. St. Amand, 595 F.3d 11, 15 (1st Cir. 2010)). "For purposes of 

§ 2254(d)(1), 'an unreasonable application of federal law is 

different from an incorrect application of federal law,'" and a 

state court is afforded "deference and latitude." Harrington, 562 

U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)); 

see also Hensley, 755 F.3d at 731. And we observe that it must be 

an objectively unreasonable application of federal law -- "even 

'clear error' will not suffice." White v. Woodall, 572 U.S. 415, 

419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). 

Here, Chapman and Van Arsdall -- taken together -- are 

what the MAC is alleged to have unreasonably applied. Chapman, 

386 U.S. at 24, as we just mentioned, announces the constitutional 

harmless-error standard, while Van Arsdall, 475 U.S. at 684, tells 

us that, when it comes to a confrontation clause violation under 

Chapman, a court should take into account "the importance of the 

witness' testimony in the prosecution's case, whether the 

testimony was cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the witness on 

material points, the extent of cross-examination otherwise 

permitted, and, of course, the overall strength of the 
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prosecution's case." In reviewing Dorisca's claim of error, the 

MAC undertook a Chapman harmlessness analysis that tracked 

(without explicitly referring to) the factors laid out in Van 

Arsdall. 

Dr. Springer's videotaped deposition testimony was 

referenced only in passing during each side's closing, which we 

take to mean it wasn't afforded a high mark on "importance" to the 

prosecution's case since the MAC observed that closing arguments 

focused more on credibility determinations. Dorisca, 42 N.E.3d at 

1192. Indeed, the MAC reasoned that Dorisca never pointed to any 

testimony by Dr. Springer "that was essential to the Commonwealth's 

case." Id. And it is clear that Dr. Springer's testimony with 

respect to the nature and extent of Toussaint's wounds, as well as 

his cause of death, was corroborated by other witnesses and 

evidence (such as the emergency room doctor, autopsy photographs, 

and medical records). Id. at 1192 & n.17. The cause of death was 

not disputed, so Dr. Springer's testimony on that score was not of 

the utmost importance, either; and to the extent her "intermediate 

range" testimony could be seen as problematic, her testimony on 

that topic neither incriminated Dorisca nor absolved him of guilt 

since the gunshots' point of origin remained wholly in doubt.8 Id. 

 8 Dorisca does not contend that Dr. Springer's "intermediate 

range" testimony supported a Dorisca-pulled-the-trigger theory of 

the crime, nor does he say it was a particularly important 

component of the Commonwealth's case or critical to the eventual 
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In fact, as the MAC reasoned, Dorisca himself even used Dr. 

Springer's testimony on that point to cast reasonable doubt on 

Dorisca being the shooter (telling the jury it could have been 

Rodley, not Dorisca, who pulled the trigger). Id. at 1192. 

And what's more, nothing in the record or the appellate 

papers before us indicates that Dr. Springer's testimony would 

have been any different at trial than it was at deposition. While 

Dorisca tells us her live testimony would have been preferable -- 

and we're not saying we disagree -- the fact is that the deposition 

was being conducted in lieu of live testimony, so he should have 

planned accordingly rather than banking on getting "another shot 

at Dr. Springer" at trial. 

The strength of the Commonwealth's case is yet another 

factor, and one which also supports the harmlessness 

determination. Indeed, the MAC noted that even with the identity 

of the shooter a mystery, the "compelling circumstantial evidence" 

against Dorisca was "sufficient to permit the jury to find [him] 

guilty beyond a reasonable doubt." Id. at 1187. More 

particularly, the MAC pointed to "eyewitness testimony that only 

two men were fighting, one of whom was the defendant and the other 

 

guilty verdict, so any such argument is waived. Moreover, we do 

not see how such arguments could succeed in light of 

the Brecht v. Abrahamson, 507 U.S. 619 (1993), standard. 
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the victim, and conduct of and statements made by the defendant 

indicating consciousness of guilt." Id. 

In light of all this, we cannot say that the MAC's 

conclusion was an unreasonable application of Chapman and, by 

extension, Van Arsdall.9 Remember, the MAC's determination would 

need to be objectively unreasonable -- clear error, even if we saw 

it (and we don't), wouldn't do the trick. White, 572 U.S. at 419. 

In the end, and giving the MAC the due "deference and latitude" it 

is owed, Harrington, 562 U.S. at 101, we do not see any objectively 

unreasonable application of the law, nor can we conclude that "all 

fairminded jurists" would see the MAC's decision as being "at odds 

with the Supreme Court's existing precedents," Bebo, 906 F.3d at 

134 (citing Harrington, 562 U.S. at 102). Bound by the confines 

of AEDPA and all the case law we've laid out in reaching this 

point, we conclude that the district court did not err when it 

concluded that the MAC reasonably determined that the 

constitutional violation was harmless beyond a reasonable doubt, 

so Dorisca is not entitled to habeas relief on this ground.10

 9 We pause here only to observe that consideration of another 

of Van Arsdall's factors cited by the MAC -- cumulativeness -- 

would not alter our conclusion. Even if Dr. Springer's testimony 

was not actually "cumulative of other evidence in the case," 

Dorisca, 42 N.E.3d at 1192, it is one factor of many, so our 

preceding analysis of and conclusion regarding the MAC's 

harmlessness determination (based on Chapman and the other Van 

Arsdall factors) would be unchanged. 

10 Because we so conclude, we need not contend with actual 

prejudice. See Connolly, 752 F.3d at 514 (taking this approach). 
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2. Prosecution's misstatements during closing arguments 

In his next effort to support his habeas petition, 

Dorisca contends that the prosecution intentionally misstated the 

evidence twice during the course of the closing argument, and those 

misstatements, along with the trial judge's refusal to grant a 

mistrial, constitute a prejudicial error. Remember, the 

misstatements were (a) Dorisca testified that he saw Rodley shoot 

Toussaint (which is not what he said) and (b) Dorisca testified 

that the officer asked for his name first, not the driver's name 

(the reverse was what Dorisca had said). This prosecutorial 

misconduct, Dorisca says, rendered the whole of Dorisca's 

testimony implausible and undermined his credibility, and the 

trial judge's "boilerplate" jury instruction that closing 

 

But, even if the MAC's harmlessness determination was premised on 

an unreasonable application of the law, Dorisca still would not 

prevail because he cannot show error under the actual-prejudice 

standard. See Brecht, 507 U.S. at 637 (explaining the key inquiry 

of whether an error had substantial and injurious effect on the 

verdict -- habeas petitioners are not necessarily entitled to 

relief unless they establish that the error resulted in actual 

prejudice). Here, Dorisca did not identify any non-speculative 

actual prejudice. In his papers and at oral argument, Dorisca 

claimed the actual prejudice was that Dr. Springer never appeared 

before the jury and her intermediate range testimony, without live 

cross-examination, was harmful to his case. This is purely 

speculative and certainly doesn't rise to the level of a 

substantial and injurious effect on the verdict since Dorisca has 

not demonstrated what would have been different about Dr. 

Springer's cross-examination at trial versus at deposition, nor 

has he identified what information he had hoped to pin down through 

Dr. Springer's cross that was not already in the record. 
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arguments are not evidence was insufficient to address the 

ramifications of the misstatements. 

But, although he identifies the relevant clearly 

established Supreme Court case, nowhere in the pages Dorisca 

devotes to this argument does he explain to us how the MAC's 

prosecutorial-misstatements analysis ran contrary to or 

constituted an unreasonable application of the law, as he must to 

succeed. 28 U.S.C. § 2254(d)(1). Instead, he focuses on 

relitigating the incorrectness of the misstatements and how the 

trial judge's "bland" curative instruction failed to offset the 

negative effect the misstatements had on the jury -- both are 

relevant to our review of his claim, but he has not shown us how, 

under AEDPA, the MAC's determinations on those points ran afoul of 

the contrary to/unreasonable application of federal law standard. 

In any event, because we can go the route of rejecting 

Dorisca's claim on the merits -- and because the Commonwealth did 

not implore us to do otherwise -- we need not go as far as to say 

this piece of the appeal is waived. See United States v. Zannino, 

895 F.2d 1, 17 (1st Cir. 1990) (treating arguments not developed 

on appeal as waived because litigants must develop their own 

arguments rather than "leaving the court to do counsel's work"). 

So, with our AEDPA framework in mind, we turn to the 

MAC's analysis. In evaluating the appellate contentions relative 

to the prosecutor's misstatements, the MAC properly relied on 
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Massachusetts state law consistent with Darden v. Wainwright, 477 

U.S. 168 (1986), the clearly established Supreme Court case law 

instructing that "it is not enough that [a] prosecutors' remarks 

[are] undesirable or even universally condemned." Id. at 181 

(internal quotation marks omitted). Under Darden, "[t]he relevant 

question is whether the prosecutors' comments 'so infected the 

trial with unfairness as to make the resulting conviction a denial 

of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 

U.S. 637, 643 (1974)). That question is to be answered on a caseby-case basis, Parker v. Matthews, 567 U.S. 37, 48 (2012), taking 

into account considerations such as whether the jury was adequately 

instructed, the nature and seriousness of the comments, and the 

weight of the evidence, see, e.g., Dagley v. Russo, 540 F.3d 8, 15 

n.3, 17-18 (1st Cir. 2008) (citing Darden, 477 U.S. at 178-83; 

Donnelly, 416 U.S. at 642-45); see also Hardy v. Maloney, 909 F.3d 

494, 501 (1st Cir. 2018). 

Here, the MAC agreed that the prosecutor misstated the 

testimony, but determined that, "[u]nder the circumstances," 

considering the evidence as a whole, the misstatements were not 

prejudicial in that they were not significant errors. Dorisca, 42 

N.E.3d at 1192-93, 1193 n.19 (citing Commonwealth v. Wood, 14 

N.E.3d 140, 158-59 (Mass. 2014); Commonwealth v. Kozec, 505 N.E.2d 

519, 520 (Mass. 1987)). Yes, the prosecutor's statement that 

Dorisca had seen Rodley shoot Toussaint was inaccurate, but the 
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MAC concluded that because Dorisca "testified that he heard shots, 

and then saw Rodley running from the scene holding a gun," and 

further had "testified that Rodley told him that he poked the 

victim with a gun," the prosecutor's error was not prejudicial. 

Dorisca, 42 N.E.3d at 1193. And with respect to the officer asking 

Dorisca his name either before or after asking the driver, 

depending on who's telling the story, the MAC held that the 

prosecutor's inaccurate version was not prejudicial error because 

it was insignificant. Id. at 1193 n.19 (citing Commonwealth v. 

Richenburg, 518 N.E.2d 1143, 1150 (Mass. 1988)). Moreover, the 

trial judge "instructed the jury that the arguments were not 

evidence, and that the jurors were to rely on their own memories 

of the evidence." Id. at 1193. 

Overall, the MAC appropriately considered the 

seriousness of the misstatements, the weight of all the evidence, 

and the curative instructions issued. See, e.g., Dagley, 540 F.3d 

at 15 n.3, 17-18 (citing Darden, 477 U.S. at 178-83; Donnelly, 416 

U.S. at 642-45). Accordingly, the MAC's determination that the 

prosecutor's misstatements were not prejudicial is not contrary to 

or an unreasonable application of clearly established federal law, 

nor did the misstatements "so infect[] the trial with unfairness 

as to make the resulting conviction a denial of due process." 

Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). The 
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district court, given AEDPA's strictures, correctly determined 

that Dorisca is not entitled to habeas relief on this ground. 

CONCLUSION

For the reasons stated, the district court's dismissal 

of the habeas petition is affirmed.