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

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STAHL, Senior Circuit Judge. Appellant David Almanzar

("Petitioner") appeals from the denial of 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 rejected 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, and 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
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conducted 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

count, 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 determining 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 jury 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 Petitioner was aware of the differences between a jury and

a bench trial, had not been coerced or improperly influenced in his
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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

is 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

that 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 he
1 In addition to motions to suppress regarding the physical

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

to exclude certain statements that he had made to the police.

According to the record, Petitioner did not challenge this

adverse ruling on appeal. 

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understood everything that had gone on during these proceedings, and

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

was anything that he wanted to ask her, he inquired as to whether he

could ask his attorney something in private. 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 timely appealed, challenging both the

constitutional 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
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in an unpublished opinion. Commonwealth v. Almanzar, 705 N.E.2d 1178

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 Ct. 1998) (unpublished table decision).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

Supreme Judicial 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). 

On 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 not 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 district 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 unreasonable application of,

clearly established Federal law, as determined by

the Supreme Court of the United States." A state

court decision is "contrary to" clearly

established 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
2 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 proceedings is a pure legal

question. Therefore, we need not address 28 U.S.C. §

2254(d)(2), which allows for habeas relief when the lower

court’s adjudication "resulted in a decision that was based on

an unreasonable determination of the facts in light 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 Bonilla-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, however, that AEDPA precludes federal courts from

disturbing state court judgments by relying on precedents

created by federal courts of appeals. See Williams v. Taylor,

529 U.S. 362, 381 (2000) ("AEDPA has added, immediately

following the ‘clearly established law’ requirement, a clause

limiting the area of relevant law to that ‘determined by the

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indistinguishable facts." Williams v. Taylor, 529

U.S. 362, 413, 120 S. Ct. 1495, 1523, 146 L.

Ed. 2d 389 (2000). 

Under 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. Simpson 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 Brookhart 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 the
Supreme Court of the United States.’ If this Court has not

broken sufficient legal ground to establish an asked-for

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.

Mass. 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.

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

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

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

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

Id. at 7. Brookhart, 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 Petitioner’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 Order

providing a brief statement of the reasons for its summary

denial of Almanzar’s appeal.

5 See 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)). 

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

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

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

defendant and his attorney 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 nonetheless, we find that the state

court’s ruling was not an unreasonable application of Brookhart. The

trial court made painstaking efforts to ensure that Petitioner was

aware of the nature and consequences of his decision to proceed with a

stipulated evidence 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
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pleading guilty. After Petitioner spoke to his attorney in private,

the court once again asked whether he was comfortable continuing with

the proceedings. 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.