United States Court of Appeals

For the First Circuit

No. 06-2371

JOSEPH TETI,

Petitioner, Appellant,

v.

JAMES BENDER,

ACTING COMMISSIONER, MASSACHUSETTS DEPARTMENT OF CORRECTION,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Rosemary Curran Scapicchio for petitioner.

Eva M. Badway, Assistant Attorney General, with whom Martha

Coakley, Attorney General, was on brief, for respondent.

November 8, 2007
Pursuant to Fed. R. App. P. 43(c)(2), Acting Commissioner 1

James Bender has been substituted for former Commissioner Kathleen

Dennehy.

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LYNCH, Circuit Judge. In this opinion we address some

issues new to this circuit about practice under the federal habeas

corpus statute, 28 U.S.C. § 2254. Joseph Teti appeals from the

denial of his federal petition for habeas corpus relief. The 1

primary question in this appeal is whether the federal district

court erred in applying the presumption of correctness under 28

U.S.C. § 2254(e)(1) to the state appellate court's findings of

facts and in denying discovery and an evidentiary hearing.

Substantively, Teti argues that the state court erred in

denying his claim that he had received ineffective assistance of

counsel in violation of his Sixth and Fourteenth Amendment rights

because, inter alia, his original defense attorney Bradford Keene

had an actual conflict of interest. 

We affirm the denial of habeas corpus relief by the

district court.

I.

We describe the facts as they appear from the state court

record. Teti was convicted in Massachusetts Superior Court in

April 1999 on charges stemming from two cocaine trafficking

incidents in 1996. See Mass. Gen. Laws ch. 94C § 32E(b)(4). As he

had provided cocaine to an undercover agent, Teti's primary defense
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was entrapment. Commonwealth v. Teti, 801 N.E.2d 279, 282 (Mass.

App. Ct. 2004). He testified that he was an addict and had been

pressured by the agent to make the sale. Id. 

On the third day of Teti's four-day trial the prosecutor

raised an issue of possible conflict: that defense attorney

Bradford Keene had also represented a witness hostile to Teti. Id.

at 283. Teti originally hired attorney Keene in May 1998 but

replaced him with attorney John McBride in January 1999. Id. at

282. After forwarding his file on Teti to McBride, Keene was no

longer involved in the case, although he never formally withdrew

his appearance and he sat at the defense counsel table during

Teti's trial. Id. at 282-83 & n.6. Sometime around April 1998, a

year before Teti's trial, Keene had represented a man named Leo

Lobello in some limited matters. Lobello, a convicted federal

felon, was the informant who had introduced Teti to the undercover

agent who bought the cocaine from Teti. Id. at 282. Keene

insisted, however, that he did not know Lobello was the informant

in Teti's case until a week before Teti's trial. Id. at 285. 

McBride, who did know as early as February 1999 that

Lobello was the informant, had called Lobello as a hostile witness

in the vain hopes that Lobello would bolster the entrapment defense

by demonstrating that Teti was not predisposed to sell cocaine and

by appearing himself to be "the instigator of the drug
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transactions, as well as a reprobate and liar, testifying to curry

favor with the Federal authorities," id. at 282.

Upon hearing the prosecutor's concern about a potential

conflict, the court immediately questioned both Keene and McBride.

That questioning, which has been the only hearing on this issue,

underlies the description of the facts by the Massachusetts Appeals

Court ("MAC") discussed below. Initially, the state trial judge

stated her impression that Keene had a conflict of interest; she

required him to withdraw, but allowed the trial to continue. The

jury convicted Teti, and he was sentenced to fifteen years'

imprisonment.

Two and a half years later, Teti moved for a new trial

and, on denial of the new trial motion, moved for reconsideration.

That motion was also denied. The same state judge who tried the

case, in denying the motion for a new trial, concluded that

contrary to her initial impression, there was no actual conflict of

interest and no showing that any prejudice had resulted, even if

there had been a conflict. Because Massachusetts law largely

leaves the decision to grant an evidentiary hearing on a new trial

motion to the sound discretion of the trial judge, and because Teti

had not presented any substantial question of fact warranting an

evidentiary hearing, the state judge declined to grant one. See

Mass. R. Crim. P. 30(c)(3); Commonwealth v. Stewart, 418 N.E.2d

1219, 1222-23 (Mass. 1981).
Rule 35(b) allows the prosecutor to move for a reduced 2

sentence based on the defendant's "substantial assistance in

investigating or prosecuting another person" after the defendant

was sentenced. Fed. R. Crim. P. 35(b)(1)(A).

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The MAC in 2004 affirmed the conviction as well as the

denial of Teti's motion for a new trial. The MAC rejected Teti's

claims that Keene had an actual conflict of interest in violation

of Teti's federal and state constitutional rights, Teti, 801 N.E.2d

at 284; that Keene's actions had caused Teti any prejudice, making

it irrelevant whether Keene had a potential conflict of interest,

id. at 286; and that Teti had been denied his right to effective

assistance of counsel under the federal and state constitutions for

other reasons, id. at 286-89

The MAC made certain key findings of fact, which the

federal habeas court later presumed were correct: (1) that,

contrary to what the prosecutor had initially believed, Keene had

not represented Lobello in seeking a Rule 35(b) motion in federal

court to reduce Lobello's federal sentence, id. at 283, 285 n.10;2

(2) that Keene's representation of Lobello was fully in the past

and was limited to a few, unanswered phone calls to a South

Carolina prison facility approximately one year before Teti's trial

in an effort to have Lobello transferred to another facility, and

that Keene had never spoken to or met Lobello, id. at 284-85; (3)

that Keene was not aware that Lobello was the informant in Teti's

case until one week before trial -- "a point by which [Keene's]
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activities on Lobello's behalf had long since ended," id. at 285;

(4) that Keene did not participate in the preparation of Teti's

case and that his "involvement with the trial was essentially

nonexistent," id. at 286; and (5) that McBride learned of Keene's

representation of Lobello only on the third day of Teti's trial,

id. at 287. Based on these factual determinations, the MAC

concluded that Teti failed to establish the existence of an actual

conflict of interest. Id. at 285.

The MAC then considered whether apart from an actual

conflict, Teti's counsel had a potential or, as state law phrases

it, a "tenuous" conflict. It determined that, whether or not there

had been a conflict, there was no prejudice in any event. Id. at

286. As the MAC sensibly reasoned, Keene's participation in the

trial preparation and the trial itself was de minimis. Further,

any privileged information that Keene did have would not have

harmed Teti, as "[i]t would have been to the defendant's benefit

for McBride to know more about Lobello, a hostile witness." Id.

Teti had also presented to the MAC a claim of ineffective

assistance by McBride, based on several alleged deficiencies. Teti

argued that McBride was ineffective in failing to investigate

Keene's potential conflicts and to tell Teti about Keene's prior

representation of Lobello, but the MAC held there was no

ineffectiveness and no prejudice. Id. at 287. The MAC also noted

that when the trial judge had questioned Teti about Keene's alleged
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conflict, Teti said he was "quite satisfied" with McBride's

representation. Id. The MAC, accordingly, rejected Teti's

assertion that had he been informed more fully of the conflict, he

would have insisted on new counsel. Id.

Teti also argued that McBride was ineffective for failing

to move to sever the indictments against him; for introducing

evidence of additional, uncharged drug transactions; and for

promising in his opening statement but then not providing testimony

about the effects of Teti's psychological and drug dependency

problems on his state of mind. The MAC concluded that none of

these actions constituted ineffective assistance. See id. at 286-

89.

The Supreme Judicial Court denied further appellate

review. Commonwealth v. Teti, 805 N.E.2d 44 (Mass. 2004).

II.

In February 2005, Teti filed a petition for habeas corpus

in federal court under 28 U.S.C. § 2254, raising the same arguments

he had made to the MAC.

In an able opinion, the district court denied Teti's

requests for discovery and an evidentiary hearing and denied habeas

relief. The court applied the statutory presumption of correctness

to the state court's factual determinations and viewed the claims

actually ruled upon by the MAC through the deferential lens of the

Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L.
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No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. § 2254(d),

(e)(1).

The district court held that the state court holdings --

that there was neither an actual conflict nor any prejudice -- were

not an unreasonable application of federal law under AEDPA. See 28

U.S.C. § 2254(d)(1). Under federal law, an ineffective assistance

of counsel claim requires demonstrating "a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington,

466 U.S. 668, 694 (1984). If, however, a defendant can show that

his attorney "actively represented conflicting interests" in breach

of the attorney's duty of loyalty, and if the defendant can show

that this "actual" conflict of interest "adversely affected [the]

lawyer's performance," then the stricter prejudice showing required

by Strickland does not apply. Id. at 692 (quoting Cuyler v.

Sullivan, 446 U.S. 335, 348, 350 (1980)) (internal quotation marks

omitted); see also Allison v. Ficco, 388 F.3d 367, 370 (1st Cir.

2004). In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme

Court emphasized that an actual conflict of interest does not

result in an automatic reversal; in almost all cases, some showing

of an adverse effect is still required. Id. at 171, 173-74.

Lesser ("potential") conflicts of interest can also be the basis of

an ineffective assistance claim, but the more stringent prejudice

prong of Strickland then applies.
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Although the MAC had relied on state law in concluding

there was no actual conflict, the district court noted that state

law is more favorable than federal law to the defendant on this

issue because under state law, if there were an actual conflict of

interest, that conflict would result in automatic reversal

regardless of whether any prejudice could be shown. See

Commonwealth v. Croken, 733 N.E.2d 1005, 1010 (Mass. 2000). For

habeas purposes, where state law is explicitly more favorable to

defendants than the federal standard, "we will presume the federal

law adjudication to be subsumed within the state law adjudication."

McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002); see also

Commonwealth v. Shraiar, 489 N.E.2d 689, 692 n.3 (Mass. 1986)

(noting that the state constitutional standard on this issue is

more protective of defendant's interests than the federal

constitutional standard).

As for Teti's claim that McBride shared Keene's conflict

of interest, the district court determined that the MAC had not

adjudicated that claim on the merits, even though Teti had

presented it to the court; it thus reviewed the claim de novo

instead of applying § 2254(d)(1)'s highly deferential standard.

See DiBenedetto v. Hall, 272 F.3d 1, 6-7 & n.1 (1st Cir. 2001);

Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). Again

utilizing the presumption that the state court's factual findings

were correct, the district court concluded that attorney McBride
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had no conflict and that Teti could not establish any prejudice

that would have resulted even if a conflict had existed. Finally,

the court found no basis for habeas relief in the state court's

rejection of the remaining ineffective assistance claims.

The federal habeas court denied a later motion to amend

or to alter its findings. It granted a certificate of

appealability sua sponte regarding issues related to the

effectiveness of Teti's counsel.

In addressing these issues, we recite only so much of the

case and underlying facts as needed for analysis of the denial of

federal habeas relief.

III.

We review the district court's legal conclusions de novo;

further, "[w]hen the district court undertakes no independent

factfinding in a habeas case, we are effectively in the same

position as the district court vis-à-vis the state court record,"

so we review the district court's factual conclusions de novo as

well. Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007), petition

for cert. filed, __ U.S.L.W. ____ (U.S. Sept. 28, 2007) (No. 07-

6854).

A. Deference Under § 2254(d) 

Under AEDPA, our review of state court legal and factual

determinations is highly deferential. When a petitioner presses a

claim that was adjudicated on the merits in state court, federal
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habeas courts must defer to the state court determination unless

it:

(1) 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; or

(2) 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.

28 U.S.C. § 2254(d). 

Section 2254(d) applies to Teti's claim that Keene

provided ineffective assistance of counsel due to an actual or

potential conflict of interest because the MAC adjudicated that

claim on the merits. A matter is "adjudicated on the merits" if

there is a "decision finally resolving the parties' claims, with

res judicata effect, that is based on the substance of the claim

advanced, rather than on a procedural, or other, ground." Sellan

v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Contrary to Teti's

argument, § 2254(d) applies regardless of the procedures employed

or the decision reached by the state court, as long as a

substantive decision was reached; the adequacy of the procedures

and of the decision are addressed through the lens of § 2254(d),

not as a threshold matter. See, e.g., Lambert v. Blodgett, 393

F.3d 943, 966-69 (9th Cir. 2004) (no procedural requisites before

§ 2254(d) applies); Wright v. Sec'y for Dep't of Corr., 278 F.3d

1245, 1254 (11th Cir. 2002) (§ 2254(d) applies equally to summary

dispositions); Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir.
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2001); Bell v. Jarvis, 236 F.3d 149, 158-60 (4th Cir. 2000) (en

banc); Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); Aycox

v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999).

Since an ineffective assistance of counsel claim is a

mixed question of law and fact, Strickland, 466 U.S. at 698; Scarpa

v. DuBois, 38 F.3d 1, 9 (1st Cir. 1994), Teti cannot be granted

relief unless the MAC's decision was an "unreasonable application

of[] clearly established Federal law," Terry Williams v. Taylor,

529 U.S. 362, 409 (2000) (mixed questions are reviewed under

§ 2254(d)(1)'s "unreasonable application" clause). A decision can

still be reasonable even if the reviewing court thinks it is wrong;

"unreasonable" here means something more than incorrect or

erroneous. Id. at 411.

Based on the facts as described by the MAC, it was not

unreasonable for the MAC to conclude that Keene's representation

was not constitutionally deficient. Even assuming that Keene's

representation of Lobello and Teti overlapped for some period of

time and even assuming that Keene was actively engaged in Teti's

trial, Keene had stopped representing Lobello a year before the

trial and long before he knew that Lobello was the informant in

Teti's case. Further, the MAC found that Keene's representation of

Lobello was very limited and would not have related in any way to

Teti's case. Based on these facts, there were no competing

loyalties and no possible detrimental effect on Teti's
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representation. To press this claim, then, Teti must challenge the

factfinding on which the MAC's conclusion rested. We turn to

§ 2254(e).

Our mode of analysis does not suggest, however, that

habeas courts should always consider the reasonableness of the

state court's determination under § 2254(d) before considering the

validity of the state court factfinding under § 2254(e). To

suggest a set order of analysis would unnecessarily constrain

habeas courts. Accord Lambert v. Blackwell, 387 F.3d 210, 236 n.19

(3d Cir. 2004) (acknowledging that different circuits have

suggested different orders of analysis and declining to adopt a

rigid approach). Others disagree. See 1 Hertz & Liebman, Federal

Habeas Corpus Practice and Procedure § 20.2c (5th ed. 2005)

(concluding that courts should apply § 2254(d)(2)'s reasonableness

review before applying § 2254(e)(1)). 

B. Deference Under § 2254(e)

Under § 2254(e)(1), "a determination of a factual issue

made by a State court shall be presumed to be correct." The

petitioner bears the burden of overcoming that presumption by

providing "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

The relationship between § 2254(d)(2) and § 2254(e)(1),

both of which apply to state court fact determinations, has caused

some confusion. The Supreme Court has suggested that § 2254(e)(1)

applies to "determinations of factual issues, rather than
The Ninth Circuit, for example, draws a slightly 3

different distinction than the one described above. Under that

court's approach, § 2254(d)(2) applies when the petitioner argues

that the state court drew unreasonable conclusions based on the

evidence already in the record; § 2254(e)(1) applies, on the other

hand, when the petitioner wishes to bring in new evidence to

challenge the facts found by the state court. See, e.g., Blodgett,

393 F.3d at 972, 978; Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th

Cir. 2004).

Professors Hertz and Liebman would apply the provisions

sequentially: under their approach, courts should consider first

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decisions," while § 2254(d)(2) "applies to the granting of habeas

relief" itself. Miller-El v. Cockrell, 537 U.S. 322, 341-42

(2003). That is, under this approach, § 2254(d)(2)'s

reasonableness standard would apply to the final decision reached

by the state court on a determinative factual question, while

§ 2254(e)(1)'s presumption of correctness would apply to the

individual factfindings, which might underlie the state court's

final decision or which might be determinative of new legal issues

considered by the habeas court. See, e.g., Blackwell, 387 F.3d at

235 ("[Section] 2254(d)(2)'s reasonableness determination turns on

a consideration of the totality of the 'evidence presented in the

state-court proceeding,' while § 2254(e)(1) contemplates a

challenge to the state court's individual factual determinations .

. . .") (quoting 28 U.S.C. § 2254(d)(2)); Valdez, 274 F.3d at 951

n.17; cf. Coombs v. State of Maine, 202 F.3d 14, 18 (1st Cir. 2000)

(suggesting but not explicating this distinction).

This question has not yet been definitively resolved, nor

do we attempt our own resolution here. Since Miller-El, the 3
whether a state court's factfindings are reasonable under

§ 2254(d)(2), and if they are, only then should the courts apply

§ 2254(e)(1)'s presumption of correctness. 1 Hertz & Liebman

§ 20.2c. 

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Supreme Court has not further clarified this issue. See Rice v.

Collins, 546 U.S. 333, 338-39 (2006). As the Third Circuit noted

in Blackwell, "[d]espite the Supreme Court's pronouncements in

Miller-El and Wiggins [v. Smith, 539 U.S. 510 (2003)], a

comprehensive interpretation of AEDPA's factual review scheme has

yet to emerge from the federal courts. Specifically, the

relationship between the standards enunciated in § 2254(d)(2) and

§ 2254(e)(1) remains unclear." 387 F.3d at 235; see also Blodgett,

393 F.3d at 971 & n.19; R. Fallon et al., Hart & Wechsler's The

Federal Courts and the Federal System 1355 (5th ed. 2003); 17B

Wright et al., Federal Practice and Procedure: Jurisdiction

§ 4265.2 (3d ed. 2007).

For now we follow the Supreme Court's lead in Miller-El

and apply § 2254(e)(1) to the MAC's individual factfindings. The

decision to do so is not determinative, however, for not only do

both provisions "express the same fundamental principle of

deference to state court findings," Blackwell, 387 F.3d at 235,

but were we to apply § 2254(d)(2), we would also find the MAC's

factual conclusions to be not unreasonable in light of the record

before it.
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1. Presumption of Correctness Under § 2254(e)(1)

The "presumption of correctness is equally applicable

when a state appellate court, as opposed to a state trial court,

makes the finding of fact." Norton v. Spencer, 351 F.3d 1, 6 (1st

Cir. 2003) (quoting Sumner v. Mata, 455 U.S. 591, 592-93 (1982))

(internal quotation marks omitted). Contrary to Teti's arguments,

it is for the habeas petitioner to provide the clear and convincing

evidence that can overcome that presumption of correctness.

There is some disagreement about whether the presumption

of correctness always applies or if there are instead certain

procedural prerequisites. See, e.g., Mayes v. Gibson, 210 F.3d

1284, 1289 (10th Cir. 2000) (if there was no "full, fair, and

adequate hearing in the state court," the presumption of

correctness does not apply); cf. Taylor v. Maddox, 366 F.3d 992,

1001 (9th Cir. 2004) ("If . . . a state court makes evidentiary

findings without holding a hearing and giving petitioner an

opportunity to present evidence, such findings clearly result in an

'unreasonable determination' of the facts [under § 2254(d)(2)].");

1 Hertz & Liebman § 20.2c (§ 2254(d)(2)'s reasonableness standard

applies to both the process and the substance of state court

factfindings).

While the policy arguments underlying these conclusions

are reasonable, we must look first to the language of the statute.

When Congress revised § 2254 under AEDPA, it removed language that
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had limited the presumption to determinations made "after a hearing

on the merits of a factual issue," as well as the statute's list of

procedural defects that previously deprived state court factfinding

of the presumption. As Professors Fallon, Meltzer, and Shapiro

have noted, these changes suggest that "the presumption of

correctness now applies across the board." R. Fallon et al. at

1355; see also Valdez, 274 F.3d at 949-51; Mendiola v. Schomig, 224

F.3d 589, 592-93 (7th Cir. 2000); 17B Wright et al. § 4265.2

(noting change of statutory language, raising concerns, and

predicting that courts might read some of the procedural

requirements back into the statute).

The Third Circuit has taken the position that "the extent

to which a state court provides a 'full and fair hearing' is no

longer a threshold requirement before deference applies; but it

might be a consideration while applying deference under

§ 2254(d)(2) and § 2254(e)(1)." Blackwell, 387 F.3d at 239. We

agree with this approach. While it might seem questionable to

presume the correctness of material facts not derived from a full

and fair hearing in state court, the veracity of those facts can be

tested through an evidentiary hearing before the district court

where appropriate. Cf. Valdez, 274 F.3d at 951 n.17, 952

(evidentiary hearing can aid in federal court's assessment of

reasonableness under § 2254(d) when state did not hold a full and

fair hearing).
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Teti does not attempt to argue that he has clear and

convincing evidence to overcome the presumption here. Instead he

tries to refute the MAC's factual determinations by employing the

same documents already considered by the state courts. That

approach fails. Describing how different parties stated different

versions of events does not constitute the needed showing of clear

and convincing evidence; rather, the state trial judge's implicit

credibility determinations, adopted by the MAC, are exactly the

type of factual determinations to which we defer, at least short of

any indication of serious error. Rice, 546 U.S. at 341-42

("Reasonable minds reviewing the record might disagree about the

prosecutor's credibility, but on habeas review that does not

suffice to supersede the trial court's credibility

determination.").

Teti also argues that the trial judge's conclusion posttrial that there was no relevant conflict of interest contradicts

her in-court statements. That argument does not work either.

First, the judge's in-court statements were not final

determinations and thus not inconsistent with her later ruling.

Teti, 801 N.E.2d at 285 n.11 ("That the judge, on first impression,

believed there was a conflict did not prevent her from considering

the issue further, and then specifically finding, in a reasoned and

reflective memorandum . . . , that there was, in fact, no

conflict."). Second, such a determination by the state trial judge
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would be a legal -- not factual -- conclusion and thus not relevant

to the § 2254(e)(1) inquiry. 

Because the presumption of correctness applies to all the

state court's factfindings, and because Teti does not point us to

any clear and convincing evidence that refutes those factfindings,

we turn next to whether he should have been allowed discovery or an

evidentiary hearing.

2. Discovery Under Rule 6

Habeas corpus proceedings under § 2254 are civil in

nature, but they are governed by a discrete set of procedural

rules. Mayle v. Felix, 545 U.S. 644, 654 & 655 n.4 (2005). Thus

unlike in normal civil cases, there is no entitlement to discovery

in habeas proceedings; the availability of discovery is instead

circumscribed by Rule 6 of the Rules Governing § 2254 Cases. Bracy

v. Gramley, 520 U.S. 899, 904 (1997); Bader v. Warden, 488 F.3d

483, 488 (1st Cir. 2007). Under Rule 6, the federal habeas judge

has discretion to grant discovery for "good cause." Rule 6(a).

The party requesting discovery must not only provide reasons for

the discovery, but also must specify "any proposed interrogatories

and requests for admission" and "any requested documents." Rule

6(b). We review the district court's denial of discovery for abuse

of discretion. See Bader, 488 F.3d at 488.

Teti did not comply with the specific requirements of

Rule (6)(b); his request for discovery is generalized and does not
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indicate exactly what information he seeks to obtain. A habeas

proceeding is not a fishing expedition. E.g., Stanford v. Parker,

266 F.3d 442, 460 (6th Cir. 2001); Rich v. Calderon, 187 F.3d 1064,

1067 (9th Cir. 1999).

In addition, as the district court noted, Teti did not

meet the Rule's requirement of "good cause." The Supreme Court has

defined "good cause" in this context as specific allegations that

give a court "reason to believe that the petitioner may, if the

facts are fully developed, be able to demonstrate that he is . . .

entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v.

Nelson, 394 U.S. 286, 300 (1969)) (internal quotation marks

omitted). The district court carefully reviewed the documents

submitted to it and concluded they did not suggest that discovery

would help establish any claim for relief. The district court did

not abuse its discretion in denying discovery.

3. Evidentiary Hearings

We also review the decision whether to grant an

evidentiary hearing for abuse of discretion. Pike, 492 F.3d at 70;

see also Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007). 

Before AEDPA, judge-made law governed the decision

whether to grant an evidentiary hearing. Under Townsend v. Sain,

372 U.S. 293 (1963), district courts generally had discretion to

grant such hearings when they deemed it appropriate. Id. at 318

("In every case [the district judge] has the power, constrained
AEDPA did not change the standard for granting 4

evidentiary hearings under § 2255, which applies to federal

petitioners. This suggests that Congress intended "to create a

discrepancy between the (respectively, somewhat narrower and

broader) rights to a hearing in section 2254 and section 2255." 2

Hertz & Liebman § 41.6d. This discrepancy underscores the

principles of comity and federalism embodied in § 2254.

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only by his sound discretion, to receive evidence bearing upon the

applicant's constitutional claim."). In some situations, an

evidentiary hearing before the district court was mandatory: "Where

the facts are in dispute, the federal court in habeas corpus must

hold an evidentiary hearing if the habeas applicant did not receive

a full and fair evidentiary hearing in state court, either at the

time of the trial or in a collateral proceeding." Id. at 312.

Townsend specified six situations which would necessitate a hearing

under this standard, including a catch-all category for "any

reason" the petitioner might not have received a full and fair

hearing on the issue before a state court. Id. at 313.

But Townsend was "significantly qualified by later case

law and congressional action[,] leaving the circuit courts in some

uncertainty" about when new federal factfinding for state prisoners

is appropriate. Bader, 488 F.3d at 487. There is debate post- 4

AEDPA over whether evidentiary hearings are still mandatory in some

circumstances, or whether they are simply within the district court

judge's discretion when not prohibited. Some courts have concluded

that Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), and AEDPA only

modified Townsend's six categories of mandatory hearings, leaving
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the rest of Townsend intact. E.g., Conaway v. Polk, 453 F.3d 567,

582, 590 (4th Cir. 2006); Insyxiengmay v. Morgan, 403 F.3d 657, 670

(9th Cir. 2005); Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir.

2002); Matheney v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001);

Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). And some

commentators agree. See 1 Hertz & Liebman § 20.1b ("Even after

AEDPA . . . Townsend's mandatory-hearing standards . . . continue[]

to govern all situations save those in which the petitioner's

procedural default accounts for the state courts' failure to

develop the material facts."); W. LaFave et al., Criminal Procedure

§ 28.7(c) (2d ed. 2004). Indeed, the Advisory Committee Notes for

Rule 8 of the Rules Governing § 2254 Cases, regarding evidentiary

hearings, suggest that Townsend still applies except to the extent

it is specifically superceded by § 2254(e)(2). The Third Circuit,

on the other hand, has read AEDPA as rendering all evidentiary

hearings purely discretionary. E.g., Campbell v. Vaughn, 209 F.3d

280, 287 (3d Cir. 2000) ("AEDPA, unlike Townsend and Keeney, does

not require that such a hearing be held. Instead, federal courts

have discretion to grant [an evidentiary] hearing or not."). 

At the least, where not explicitly prohibited by § 2254,

federal habeas judges retain discretion to grant evidentiary

hearings. See Rules Governing § 2254 Cases, Rule 8(a); Schriro,

127 S. Ct. at 1939 (AEDPA did not change the "basic rule" that "the

decision to grant an evidentiary hearing [is] generally left to the
-23-

sound discretion of district courts"); Guidry v. Dretke, 397 F.3d

306, 323 (5th Cir. 2005). But that discretion should be exercised

in a restrained manner. As the Supreme Court noted in Schriro,

Congress through AEDPA meant to curb delays and prevent retrials

before habeas courts. 127 S. Ct. at 1940; see also Pike, 492 F.3d

at 70. As a result, federal evidentiary hearings seeking to rehear

issues addressed by the state courts "ought to be the exception,

not the rule." Pike, 492 F.3d at 70.

We need not resolve today the question of whether federal

habeas evidentiary hearings are ever mandated. First, AEDPA is

clear on one point: an evidentiary hearing is prohibited if "the

applicant has failed to develop the factual basis of a claim in

State court proceedings" unless certain stringent exceptions apply.

28 U.S.C. § 2254(e)(2). It may seem odd to prohibit an evidentiary

hearing where the defendant did not present the facts to a state

court but not to prohibit one where he did. But the prohibition is

analogous to a procedural default rule, furthering the principles

of comity, finality, and federalism by requiring the prisoner to

present his claims fully before the state courts. Michael Williams

v. Taylor, 529 U.S. 420, 436-37 (2000).

Section 2254(e)(2)'s bar applies where there has been a

"lack of diligence" on the part of the petitioner or his counsel

before the state courts. Id. at 432. Teti demonstrated such a

lack of diligence. "Diligence will require in the usual case that
-24-

the prisoner, at a minimum, seek an evidentiary hearing in state

court in the manner proscribed by state law." Id. at 437. Teti's

broad claims in his state court motion for a new trial did not

raise any specific question sufficient to require the state trial

judge to hold an evidentiary hearing. Cf. Bowersox, 311 F.3d at

921-22 (petitioner's request for an evidentiary hearing barred

under § 2254(e)(2) where petitioner had submitted only broad

allegations to the state court, in conflict with state's

requirement of factual allegations sufficient to warrant relief if

true). Further, Teti did not develop his argument for an

evidentiary hearing in his appeal to the MAC. Teti, 801 N.E.2d at

289. Section 2254(e)(2) does include narrow exceptions that would

excuse a petitioner's lack of diligence, but they clearly do not

apply to Teti's situation: there is no new rule of constitutional

law, nor any new evidence, much less any evidence that "could not

have been previously discovered through the exercise of due

diligence." 28 U.S.C. § 2254(e)(2)(A).

Second, even if Teti's request for an evidentiary hearing

were not barred by § 2254(e)(2) for lack of diligence, he fails on

another threshold matter, just as he did before the state trial

court. Akin to Rule 6's "good cause" requirement, a habeas judge,

before granting an evidentiary hearing, "must [first] consider

whether such a hearing could enable an applicant to prove the

petition's factual allegations, which, if true, would entitle the
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applicant to federal habeas relief." Schriro, 127 S. Ct. at 1940;

see also Townsend, 372 U.S. at 312.

The requirement is not so stringent that Teti must point

to specific facts he will establish that will entitle him to

relief, but rather that his allegations would entitle him to relief

and the hearing is likely to elicit the factual support for those

allegations. See, e.g., Insyxiengmay, 403 F.3d at 670. As the

Fourth Circuit noted in the context of a state collateral review

petition, "it would create a 'classic catch-22' if [a habeas]

defendant were obliged to submit admissible evidence to the

[habeas] court in order to be accorded an evidentiary hearing, when

the defendant is seeking the hearing because he cannot, without

subpoena power or mechanisms of discovery, otherwise secure such

evidence." Conaway, 453 F.3d at 584. But see Campbell, 209 F.3d

at 290 (petitioner needs clear evidence before a habeas court can

justify a new evidentiary hearing, at least where the state court

also held an evidentiary hearing and there is a sufficient basis in

the record for the state court's conclusions). On the other hand,

Teti must allege more than that he received inadequate assistance;

he must allege facts sufficient to overcome AEDPA deference to the

state court's factfindings and legal conclusion to the contrary.

See Schriro, 127 S. Ct. at 1940; Bader, 488 F.3d at 488.

The district court correctly considered this threshold

question, concluding that Teti had not given any "indication that
-26-

an evidentiary hearing would give rise to 'clear and convincing

evidence' that petitioner's trial counsel suffered from a conflict

of interest." We turn, however, directly to the question of

prejudice. See Strickland, 466 U.S. at 697 ("[A] court need not

determine whether counsel's performance was deficient before

examining the prejudice suffered by the defendant . . . . If it is

easier to dispose of an ineffectiveness claim on the ground of lack

of sufficient prejudice, . . . that course should be followed.").

Teti argues that he suffered prejudice because he was

unable to obtain a plea agreement. He does not, however, make the

argument that his attorneys failed to obtain a plea agreement

because of their conflicted loyalties. Nor would such an argument

be plausible, given that Keene ceased representing Lobello shortly

after, if not before, he began representing Teti. Teti instead

argues that McBride was unable to secure a plea agreement for him

because the Commonwealth was worried, once the conflict of interest

concern was aired, that such an agreement might be vulnerable on

appeal. The argument is hard to credit, as one would think a

conviction would have been more vulnerable on appeal. Regardless,

it is insufficient.

Teti might be arguing that he was harmed because of

procedural irregularities in the hearing before the state trial

judge. The relevant harm, however, is the one emanating from

Keene's alleged conflict of interest. If a federal evidentiary
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hearing could cure any procedural irregularities, Teti still has

not explained what harm he would hope to demonstrate beyond the

alleged plea agreement harm already discussed.

Teti has not argued sufficient harm to satisfy Mickens,

much less the prejudice needed to meet the more stringent standard

for establishing ineffective assistance where counsel has a

potential, rather than actual, conflict of interest. In short,

Teti "continues to assert he needs [an] evidentiary hearing to

factually develop his constitutional claims, but he has failed at

every level to make a factual showing (as opposed to conclusory

statements) as to why those claims merit development through the

crucible of an official hearing." Reynolds v. Bagley, 498 F.3d

549, 555 (6th Cir. 2007).

Because Teti provides no clear and convincing evidence

that the MAC's factual determinations were erroneous, and because

he has not adequately specified what facts he seeks to establish

through discovery or an evidentiary hearing, the MAC's factual

determinations stand, as does its ultimate conclusion under

§ 2254(d)(1) that Keene did not provide ineffective assistance of

counsel due to any conflict of interest. See Allison, 388 F.3d at

370-71.
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C. Remaining Claims

Teti also claims that McBride shared Keene's conflict of

interest and that he received ineffective assistance of counsel for

several additional reasons.

The district court reviewed de novo the claim that

McBride had a conflict. It did so on the basis that the MAC did

not expressly rule on this issue, although the issue had been

presented to it. See Fortini, 257 F.3d at 47. We need not address

whether this was the correct approach, for whether reviewed de novo

or deferentially, Teti's claim fails. If Keene did not have a

conflict, there was no derivative conflict in McBride, and like the

state court, we see no possible prejudice to Teti.

We rely on the district court's reasoning on the

remaining ineffective assistance claims against McBride. The

district court correctly applied § 2254(d)(1) to these claims, as

they were addressed by the state court. The district court

reasoned as follows: Because Teti's main defense was entrapment,

McBride's failure to move to sever the two indictments and his

allowance of the introduction of evidence on similar but uncharged

drug transactions could have been part of a reasonable defense

strategy to highlight that the same federal agent initiated all the

transactions. Further, a motion to sever would have failed, as

joinder was appropriate under state law. Finally, the relevant

information about Teti's state of mind was provided when Teti
-29-

himself testified as to his drug dependency and depression; McBride

had promised nothing further in his opening statement. The MAC's

conclusion that none of these arguments established ineffective

assistance of counsel was therefore not an unreasonable application

of federal law under § 2254(d)(1). We agree.

Teti has been well and inventively represented on appeal.

The denial of the petition for habeas relief is affirmed.