# United States Court of Appeals
For the First Circuit

No. 01-1856

DAVID ALMANZAR,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY, COMMISSIONER OF DEPARTMENT OF CORRECTIONS,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge ]

Before

Selya, Circuit Judge

, Stahl, Senior Circuit Judge

, and Lipez, Circuit Judge

.

Robert O. Berger for appellant. William J. Meade , Assistant Attorney General, with whom Thomas F. Reilly , Attorney General, was on brief, for appellee.

February 25, 2002-3- STAHL, Senior Circuit Judge

. Appellant David Almanzar

("Petitioner") appeals from the denial o f his petition for a writ of

habeas corpus. Specifically, Almanzar argues that he is entitled to a

new trial because his jury-waived trial was, in effect, a guilty plea,

and as such, the judge’s colloquy failed to satisfy minimum

constitutional requirements. We affirm.

I.

In March 1995, Almanzar was indicted for trafficking in 200

or more grams of cocaine and for possession of heroin with the intent

to distribute. He challenged the constitutionality of the search

yielding the narcotics, but his pretrial motions to suppress were

denied in October 1995, with the court’s written findings of fact and

conclusions of law filed two months later. Petitioner then sought to

have the indictment dismissed on the basis of double jeopardy, but the

court reject ed this argument as well. After these adverse rulings, in

April 1996 Petitioner waived his right to a jury and opted instead for

a bench trial before a Superior Court judge.

Because Petitioner challenges the constitutional sufficiency

of the April proceeding, we shall describe it in detail. At the

outset, the prosecutor explained to the court that Petitioner desired

a jury-waived trial with stipulated facts, a nd that if he were found

guilty after that proceeding, then the parties would present the court

with their agreed-upon recommendation for sentencing. The court then-4-

co nducted a waiver of jury trial colloquy with Petitioner through an

interpreter. Specifically, the judge asked Petitioner about his age,

his level of education, and his mental fitness. She inquired as to

whether he was under the influence of drugs or alcohol, and whether he

knew the date and time. She asked Petitioner if he understood the

nature of the charges against him, explained the elements of each

co unt, and informed Petitioner that the government would need to prove

these elements beyond a reasonable doubt. She informed Petitioner that

he was entitled to a jury of his peers and that their verdict would

have to be unanimous. The judge explained that jurors make fact

determinations and the judge makes rulings of law; however, if

Petitioner waived a jury trial, she would perform both functions.

After de termining that Petitioner had discussed these matters with his

attorney and was satisfied with his counsel’s advice, the judge asked

Petitioner whether he had discussed the possible range of penalties

with his attorney. She inquired as to whether anyone was forcing him

to waive a j ury trial or whether any promises or threats had been made

against him. Upon completing her examination, the judge found that

Petitioner was waiving his right to a jury trial voluntarily,

intelligently and with knowledge of the consequences. She further

stated that Peti tioner was aware of the differences between a jury and

a bench trial, had not b een coerced or improperly influenced in his-5-

decision and was presently capable of rational judgment. Accordingly,

she accepted his waiver of a jury trial.

After this exchange, Petitioner’s counsel told the court that

his client was willing to stipulate to the facts that the prosecutor

would read into the record, and that the parties had agreed, for

purposes of sentencing, to reduce the charge from an amount of cocaine

in excess of 200 grams to an amount in excess of 100 grams but not

greater than 200 grams. At this point, the judge said, "This is not a

guilty plea . It should be absolutely clear to this defendant that he

i s not pleading guilty. Does the defendant understand that he is not

being asked to plead guilty?" Almanzar responded, "Yes, of course."

The prosecutor then read the state’s evidence into the

record. Petitioner agreed that this would be the evidence that the

Commonwealth would present, and his counsel concurred. The judge then

found that there was sufficient evidence to warrant guilty findings on

both counts of the indictment, and adjudged Petitioner guilty of the

two charges. She accepted the parties’ agreement regarding the amount

of cocaine, and then asked counsel again whether his client understood

th at he was not agreeing to the truth of anything that had been said by

the government. Counsel reassured the court that he was satisfied that

his client understood his different options and had chosen a stipulated

facts trial in order to preserve his right of appeal on certain prior

motions. At this point, the judge asked Petitioner whether he1 In addition to motions to suppress regarding the physical

evidence (i.e., the drugs), Petitioner also had filed a motion

to exc lude certain statements that he had made to the police. According to t he record, Petitioner did not challenge this adverse ruling on appeal.

-6- un derstood everything that had gone on during these proceedings, and

Petitioner said that he did. When the judge asked Petitioner if there

was an ything that he wanted to ask her, he inquired as to whether he

could ask his attorney something in privat e. The judge granted this

request. After conferring with his client, Petitioner’s attorney

informed the court that Almanzar had "questioned counsel regarding

other possible evidence in the case and I have explained to him," at

which point the judge cut him off, saying, "Okay. You don’t have to

tell us what you said at all." Then, turning to Petitioner, the judge

asked Petitioner whether he had sufficient time to discuss any

questions he had with his attorney, to which he responded, "Yes,

Madam." The court asked Petitioner again whether there was anything

that he did not understand about what had happened during that

morning’s proceedings. To this, Petitioner said, "No, everything is

all right." Satisfied with his responses and having already found

Petitioner guilty, the court proceeded to sentencing.

Petitioner tim ely appealed, challenging both the

co nstitutional sufficiency of the proceedings before the trial court

and the denial of his motions to suppress. 1 On December 15, 1998, the

Massachusetts Appeals Court summarily affirmed Petitioner’s convictions-7-

in an unpublished opinion. Commonwealth v. Almanzar

, 705 N.E.2d 117 8

(Mass. App. Ct. 1998) (unpublished table decision). The Massachusetts

Supreme Ju dicial Court denied Petitioner’s application for leave to

obtain further appellate review. Commonwealth v. Almanzar , 707 N.E.2d

1079 (Mass. 1999) (unpublished table decision).

O n November 22, 1999, Petitioner filed a petition for writ

of habeas corpus, arguing that the trial judge failed to ensure that he

had voluntarily and intelligently waived his right to a trial by jury

because she did no t inform him that he had the right to confront his

accusers, to compel the attendance of witnesses, and to present

evidence in his defense. The district court denied the writ on May 29,

2001.

II.

The standard of review in a habeas case such as this is wellestablished. As we have previously explained,

[t]he Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) places new restrictions on a district court's power to grant writs of habeas

corpus to state prisoners. Under 28 U.S.C. § 2254(d)(1), a distric t court may issue the writ only where a state court's adjudication on the merits "resulted in a decision that was contrary
to, or involved an unreasona ble application of,
clearl y established Federal law, as determined by the Supreme Court of the United States." A state

court de cision is "contrary to" clearly established federal law "if the state court

ar rives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state cou rt decides a case differently than [the Supreme] Court has on a set of materially2 It is undisputed that the provisions of AEDPA control in

Petitioner’s case. Furthermore, we note that this petition implicates only 28 U.S.C. § 2254(d)(1), as the constitutional sufficiency of the state court proce edings is a pure legal question . Therefore, we need not address 28 U.S.C. § 2254(d)(2), which allows fo r habeas relief when the lower court’s adjudication "resulted in a decision that was based on

a n unreasonable determination of the facts in ligh t of the evidence presented in the State court proceeding."

3 In the hopes of buttressing his argument, Petitioner also cites cases from this court, most notably Bonill a-Romero v. United States
, 933 F.2d 86 (1st Cir. 1991), and United States v. Lyons
, 898 F.2d 210, 216 (1st Cir. 1990). The Supreme Court has made clear, h owever, that AEDPA precludes federal courts from disturbing state court judgments b y relying on precedents created by federal courts of appeals. S ee Williams v. Taylor

, 529 U.S. 362, 381 (2000) ("AEDPA has added, imm ediately following the ‘clearly established law’ requirement, a clause limiting the area of relevant law to that ‘determined by the

-8- indistinguishable facts." Williams v. Taylor , 529
U.S. 362, 413, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000).

Un der the "unreasonable application" clause, a writ may issue "if the state court identifies the

correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. We review a federal district court's legal conclusions in a habeas proceeding de novo. S impson v. Matesanz
, 175 F.3d 200, 205 (1st Cir. 1999).

Johnson v. Norton , 249 F.3d 20, 25-26 (1st Cir. 2001). 2

Petitioner relies on B rookhart v. Janis

, 384 U.S. 1 (1966),

in support of his argument that the trial court did not adequately

advise him of his constitutional rights before accepting what was

essentially a guilty plea. 3 The question in Brookhart , as framed by theSupreme Court of the United States.’ If this Court has not

broken sufficient legal ground to establish an asked-f o r constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.") (internal citations omitted). The district court found Brookhart to be wholly inapposite,

see Almanzar v. Maloney , No. 99-12444-RCL, slip op. at n.4 (D.

Ma ss. May 29, 2001), but reviewed cases from this and other circuits in an effort to give full consideration to Petitioner’s claim, see id. at 6-9. Because the district court reached the

proper conclusion notwithstanding, its failure to rely solely on Supreme Court precedent is inconsequential.

-9- Supreme Court, is "whether counsel has power to enter a plea which is

inconsistent with his client’s expressed desire and thereby waive his

cl ient’s constitutional right to plead not guilty and have a trial in

which he can confront and cross-examine the wi tnesses against him."

Id. at 7. B rookhart

, like this case, involved a stipulated facts

trial, also known as a "prima facie case. " Petitioner maintains that

once the trial court learned that Petitioner was asking his counsel

about "any other evidence" in the case, it should have ascertained that

Petitioner was not, in fact, consenting to a stipulated evidence trial.

Therefore, Petitioner argues, this case is indistinguishable from

Brookhart , and he is entitled to habeas relief.

The Massachusetts Appeals Court, however, determined that the

record did not bear the weight of P etitioner’s argument, citing the

"specific inquiry by the trial judge of the defendant ascertaining that

he understood he was not admitting to the truth of the proffered

evidence by the Commonwealth and understood what he was doing."4 Pursuant to Mass. R. App. Practice 1:28, the

Massachusetts Appeals Court filed a Memorandum and Ord e r providing a brief statement of the reasons for its summary denial of Almanzar’s appeal.

5 S ee Slip Opinion at 1 ("we have repeatedly stated that the procedure employed in this case should be avoided because it invites hairsplitting appeals") (citing Commonwealth v. Abrams

, 44 Mass. App. Ct. 584, 589 (1998)).

-10- Commonwealth

v. Almanzar , No. 97-P-815, slip op. at 1-2 (Mass. App. Ct.

Dec. 18, 1998) (hereinafter "Slip Opinion "). 4 In B rookhart

, on the

other hand, the Court found that "the record show[ed] . . . that [the]

petitioner himself did not intelligently and knowingly agree to be

tried in a proceeding which was the equivalent of a guilty plea . . .

." B rookhart

, 384 U.S. at 7. Furthermore, unlike Brookhart , where the

defendant and his at torney were clearly at odds with each other, in

this case Petitioner and his counsel were at all time in agreement

about going forward with a stipulated facts trial.

We share the concerns of the Massachusetts Appeals Court

about stipulated evidence trials; 5 nonethe less, we find that the state

court’s ruling wa s not an unreasonable application of B rookhart

. The

trial court made painstaking efforts to ensure that Petitioner was

aware of t he nature and consequences of his decision to proceed with a

stipulated evi dence trial, and of the rights that he would be

forfeiting by doing so. The trial court reiterated on numerous

occasions, and Petitioner insisted that he understood that he was not-11-

pl eading guilty. After Petitioner spoke to his attorney in private,

the court once again asked whether he was comfortable continuing with

the pr oceedings. Counsel attempts to read ambiguity and ambivalence

into the record where none exists. The fact remains that when the

trial court asked Petitioner if there was anything about the

proceedings that he did not understand, he said "No, everything is all

right." Therefore, on this record, we find no basis for concluding

that the state court’s determination was an unreasonable application of

the Supreme Court’s decision in Brookhart

.

III.

Finding no error with the district court’s denial of the writ

of habeas corpus, we affirm.