* Of the District of Massachusetts, sitting by designation.

[NOT FOR PUBLICATION – NOT TO BE CITED AS PRECEDENT] 

# United States Court of Appeals

**For the First Circuit**

No. 01-1151 MICHAEL MORRISSETTE, Petitioner, Appellant,

v. JAMES MATESANZ, SUPERINTENDENT, Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Morris E. Lasker, Senior U.S. District Judge ]

Before Selya, Circuit Judge , Coffin, Senior Circuit Judge , and Saris, * District Judge . Brian P. Carey , with whom Nicholas C. Theodorou , John A. Shop e , and Foley, Hoag & Eliot LLP , were on brief, for petitioner, appellant. Jam es J. Arguin , Assistant Attorney General, Criminal Bureau, with whom Thom as F. Reilly , Attorney General, was on brief, for respondent, appellee.-2- November 27, 2001 Per curiam . Michael Morrissette appeals from the district court's denial of his petition for a writ of habeas corpus, claiming that his 1991 state court conviction for second-degree murder was tainted bythe admission of trial evidence obtained in violation of his Fifth Amendment right against selfincrimination. Given the highly deferential standard applicable to review of state court judgments by federal courts under the Antiterrorismand Effective Death Penalty Act of 1996 (AEDPA),

see 28 U.S.C. § 2254(d)(1), we affirm. We state the facts briefly. Petitioner was one of three young males charged in the stabbing death of a 73-year-old man in an alley in Lowell, Massachusetts, late on the night of September 18, 1988. Two of the young men, including petitioner, were charged as joint venturers, with only the third accused of directlycommitting the attack. Trial evidence pointed to petitioner as owner of one of two knives used in the killing, and he was alleged to have encouraged the friend who initiated the stabbing to "finish off" the seriously wounded victim to prevent identification. Several hours after the crime, at about 3 a.m., petitioner was stopped in the vicinity for questioning by police officers.1 A police report detailed this exchange between petitioner

and officers, but the officers involved testified at a suppression hearing more than two years later that they did not recall asking for the shoe or observing that it matched footprints at the crime scene. Testimony at trial indicated that, in fact, no footprints had been found at the scene. -3- He was asked to remove a shoe for comparison with footprints fo und at the murder scene and was told his print matched, an assertion that appears to have been an intentional misrepresentation. 1 Petitioner agreed to accompany the officers to the police station. He was given Miranda warnings and eventually signed two statements admitting his presence at the crime scene. He also agreed to a blood test that showed traces of another individual's blood on his hand. Petitioner claims these statements and blood test results were obtained involuntarily and thus were admitted into evidence in violation of the Fifth Amendment. See Haynes v. Washington , 373 U.S. 503, 513-14 (1963). Petitioner cites a number of factors to support his contention that the officers obtained the challenged evidence by overbearing his will, including his age (seventeen), his limited education (ninth grade), the time of day (early hours of the morning), his fatigue, his lack of contact with a lawyer or guardian, and the officers' intentional misstatement that they had evidence placing him at the murder scene. He asserts that2 Petitioner does not argue that the state court ruling was

"contrary to" clearly established federal law or, under 28 U.S.C. § 2254(d)(2), that it was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." We therefore consider only whether the decision represented an "unreasonable application" of clearly established federal law. -4- the totality of these circumstances compels the conclusion that hi s cooperation with the officers was involuntary, requiring suppression of the inculpatory evidence resulting from the interview. Whether or not this would be a close case on direct review, it is far from that in its present posture. To obtain a writ of habeas corpus, petitioner must show both that the Commonwealth denied his constitutional rights and that the Massachusetts courts made a determination that was contrary to, or an unreasonable application of, federal law in rejecting his claim. See McCambridge v. Hall , 266 F.3d 12, 17 (lst Cir. 2001); Hurtado v. Tucker , 245 F.3d 7, 16 (lst Cir. 2001); 28 U.S.C. § 2254(d)(1). 2 A state court determination is unreasonable only if it is "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien

v. Dubois , 145 F.3d 16, 25 (lst Cir. 1998); see also Williams v. Matesanz , 230 F.3d 421, 425 (lst Cir. 2000).-5-

This is not such a case. During his six hours of detention, petitioner was unrestrained, afforded access to a restroom, and offered coffee. He was advised of his Miranda rights before giving the statements or consenting to the blood test. Although the hour was late, the trial court found no evidence of weariness, and petitioner can point to no evidence in the record that he was sleep-deprived. He was stopped on the street, not taken from his home. Indeed, petitioner was alert enough, and comfor table enough, to point out a typographical error in the transcription of his first statement. The officers' fabrication of evidence adverse to petitioner – the supposed footprints – is insufficient in this context to render unreasonable the state courts' conclusion that he acted voluntarily. There is no evidence of a causal connection between the deception and either petitioner's willingness to accompany the officers to the police station or his later decision, after Miranda warnings, to give

a statement and allow the blood test. See United States v. Byram , 145 F.3d 405, 408 (lst Cir. 1998) ("trickery is not automatically coercion"). Petitioner maintains that the state trial court's decision

was unreasonable because the judge did not explicitly consider all of the relevant factors in a "totality of the circumstances" review. He points out, for example, that the judge's decision-6-

failed to address his age, lack of education, and the footprint deception. The district court, however, carefully reviewed each of the factors raised by petitioner in concluding that, even "taken together," they do not permit a finding that the state court unreasonably applied federal law in rejecting petitioner's Fifth Amendment claim. Our own review leads us to the same determination. Accordingly, the district court did not err in denying the application for a writ. Affirmed.