Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2059

STEPHEN DAGLEY,

Petitioner, Appellant,

v.

LOIS RUSSO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Torruella, John R. Gibson, and Lipez, *

Circuit Judges.

Brownlow M. Speer, with whom the Committee for Public Counsel

Services was on brief, for petitioner.

Scott Katz, Assistant Attorney General, with whom Martha

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

August 15, 2008
 In full, 28 U.S.C. § 2254(e)(1) states: 1

In a proceeding instituted by an application

for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State

court, a determination of a factual issue made

by a State court shall be presumed to be

correct. The applicant shall have the burden

of rebutting the presumption of correctness by

clear and convincing evidence.

-2-

LIPEZ, Circuit Judge. Petitioner Stephen Dagley was

convicted in the Essex County Superior Court in Massachusetts of

first degree murder and sentenced to a mandatory term of life

imprisonment without the possibility of parole. After exhausting

his state court appeals, petitioner filed a 28 U.S.C. § 2254 habeas

petition challenging his detention. He asserted that a

prosecutor's prejudicial misstatement during closing arguments, and

the court's subsequent failure to directly cure the misstatement,

resulted in a fundamentally unfair trial and the infringement of

his right to due process under the Fourteenth Amendment. The

district court denied relief and Dagley appeals. We affirm.

I.

We recite only those facts necessary to resolve Dagley's

claim, as they were determined in the state proceedings. Pursuant

to 28 U.S.C. § 2254(e)(1), we presume the correctness of these

findings. Dagley does not dispute any of the state courts' 1

findings of fact.
-3-

The petitioner was indicted for murdering the victim in

September 2000. According to Dagley's neighbor downstairs, the

killing followed an argument between Dagley and the victim, his

girlfriend, earlier in the evening in which she told the petitioner

that he would have to move out of their apartment. The neighbor

recalled Dagley and the victim entering their apartment while still

arguing. He heard more yelling and screaming from the apartment,

then periodic banging sounds, like a "hammer hitting the floor."

The initial period of yelling and banging lasted approximately

twenty to twenty-five minutes, and the banging continued

intermittently for another ten minutes thereafter. The banging was

sufficiently powerful to cause ceiling tiles in the neighbor's

apartment to drop, and some plaster also loosened and fell. The

neighbor contacted both the building owner and the police regarding

the incident, and the police arrived within minutes to find the

victim lying unconscious on the floor of her apartment with a large

pool of blood around her head. Having suffered numerous blows to

her face, neck, and chest, causing multiple fractures, extensive

bruising and swelling, hemorrhaging in the back of her head and

back, and a lapse into a state of shock, she was pronounced dead,

despite attempts by emergency medical personnel to revive her. 

The police inspected the scene, finding bloody footprints

(later matched to the soles of the petitioner's shoes) in a path

toward the window. The window screen appeared to have been kicked
-4-

out, with the perpetrator having escaped onto the roof. The police

obtained Dagley's name from the downstairs neighbor and alerted

other officers that they were on the lookout for the petitioner.

Very early the next morning, a Beverly, Massachusetts

police officer spotted the petitioner at the home of his exgirlfriend in Beverly and contacted the Salem police. When the

Salem police arrived at the scene, they asked if the petitioner

would accompany them to the police station for questioning. He

agreed. The petitioner was not arrested, nor restrained. On their

way to the station, he complained to the police that he was in

pain, stating that he had been "jumped by people" earlier in the

night. 

When they arrived at the station around 1:55 A.M., the

police read Dagley his Miranda warnings. After reciting several

different versions of the night's events, the petitioner

acknowledged that he had gone back to the victim's apartment to try

to "make up" with her, and had "lost control." He claimed that

after being punched and kicked by the victim, he punched her twice

quickly, knocking her down, and then struck her a third time when

she was on the floor. He described the victim as "just groaning"

on the floor with her hands over her face. Upon hearing the police

arrive, he left through the window and over the roof on foot.

After confessing to the officers at the police station,

the petitioner also acknowledged that, although he had been
-5-

confronted by some people earlier in the day, he had not been

attacked by them. The interview lasted approximately two hours.

After its conclusion, Dagley was given an opportunity to correct

the notes taken during the interrogation. Dagley was then formally

arrested and booked.

At trial, Dagley again admitted to having killed the

victim, but sought to convince the jury that his use of force was

an instinctual response to the victim's unprovoked attack on him.

He testified that after engaging in an argument with the victim

about their living arrangement and her failure to attend her

methadone clinic, he packed his belongings and prepared to move out

of the apartment. After loading his car, he explained that he

returned to the apartment to leave a note for the victim in hopes

of "mak[ing] up." Having been drinking previously, Dagley claimed

to have passed out on the bed in the apartment. He testified that

when he awoke the victim was "on top of him, grabbing at him."

Instinctively, and still in a "stupor," he said he "started

swinging" at the victim. According to his testimony, the next

thing he knew the victim was on the floor bleeding and unconscious.

In response, he claims to have "freaked out" and escaped out the

window because he heard yelling outside the building.

In his closing argument, Dagley's counsel asserted that

because Dagley acted instinctually in response to a "reasonable

provocation," he should only be found guilty of manslaughter, not
-6-

murder. Counsel repeatedly stated that the Commonwealth was

required to prove that the petitioner acted "in cold blood" in

order to obtain a murder conviction.

The prosecutor urged the jury to reach a different

conclusion. Insisting that the evidence presented to them

undermined Dagley's version of the events, the prosecutor stated

the following near the end of the closing argument:

His [the petitioner's] actions that night were

not just what he wants you to believe,

manslaughter, simply manslaughter, reckless

conduct, or heat of passion, or response to

some sort of provocation, reasonable response

or reasonable provocation or even sudden

combat. This was murder.

Commonwealth v. Dagley, 816 N.E.2d 527, 534 (Mass. 2004) (emphasis

added). After the prosecutor completed his argument, Dagley's

counsel objected to the above portion, asserting that the use of

the phrase "reasonable response" was legally inaccurate as

manslaughter does not require the petitioner's response to be

reasonable. Instead, defense counsel noted that manslaughter is

emphatically "an unreasonable or excessive response to a reasonable

provocation." Id. at 535.

In response, the judge noted that both counsel had

inaccurately stated the law at points during the trial and that any

confusion would be remedied in his instructions to the jury. In

those instructions, the judge provided accurate legal distinctions

between murder and manslaughter, including a definition of
 The judge's instruction on "reasonable provocation" was as 2

follows:

In order to prove the petitioner acted

with malice, the Commonwealth must prove

beyond a reasonable doubt the absence of

mitigating factors [one of which is heat of

passion upon reasonable provocation]. . . .

Reasonable provocation is provocation of

the type which would be likely to produce in a

reasonable person in the circumstances known

to the petitioner such a state of passion,

anger, fear, fright, or nervous excitement as

would overcome his capacity for reflection or

restraint, and did actually produce such a

state of mind in the petitioner.

The provocation must be such that a

reasonable person would have become

sufficiently provoked and would not have

cooled off by the time of the killing.

In addition, there must be a causal

connection between the provocation, state of

passion, and the killing. The killing must

follow the provocation before there is

sufficient time for the emotion to cool and

must be the result of the state of mind

induced by the provocation rather than a

preexisting intent to kill or injure.

Mere words, no matter how insulting or

abusive standing alone do not constitute

reasonable provocation. Physical contact,

even a single blow, may amount to a reasonable

provocation. Whether the contact is

sufficient will depend on whether a reasonable

person under similar circumstances would have

been provoked to act out of emotion rather

than reasoned reflection.

The heat of passion must also be sudden;

that is, the killing must have occurred before

a reasonable person would have regained

control of his emotions.

-7-

"reasonable provocation," and noted that the "Commonwealth has the

burden to prove the absence of mitigation beyond a reasonable doubt

in order to convict the [petitioner] of murder." Id. Further, 2
If the Commonwealth has not proved beyond

a reasonable doubt the absence of heat of

passion upon reasonable provocation, the

Commonwealth has not proved malice.

-8-

the judge repeatedly instructed the jury that they were required to

apply the law as the judge gave it to them, and that they could

only convict the petitioner of a crime if they found that the

Commonwealth had proven every element of that crime. The court

provided written instructions to the jury, which at no point asked

for clarification from the judge before returning a conviction for

first-degree murder.

The SJC affirmed the conviction on appeal. Dagley, 442

N.E.2d at 537. Dagley's petition for certiorari to the United

States Supreme Court was denied shortly thereafter in March 2005.

Dagley subsequently filed a petition for writ of habeas corpus in

December 2005, raising a single claim. He argued that the

prosecutor's inclusion of the phrase "reasonable response" in his

closing argument, which represents a misstatement of the definition

of manslaughter, and the court's failure to specifically correct

the error, deprived him of his right to due process under the

Fourteenth Amendment.

In June 2007, the District Court of Massachusetts denied

Dagley's petition after briefing by the parties and a nonevidentiary hearing. In a thorough and thoughtful opinion, the

court found that the prosecutor's legally incorrect use of the
-9-

phrase "reasonable response" during closing argument in describing

the elements of manslaughter, and the trial court's failure to

correct explicitly that error in its jury instructions, did not

violate Dagley's due process rights by rendering the trial

fundamentally unfair. The district court subsequently issued a

Certificate of Appealability on Dagley's due process claim.

II.

We review a district court's denial of a petitioner's

habeas claim de novo. Delaney v. Bartee, 522 F.3d 100, 102 (1st

Cir. 2008). Under the Antiterrorism and Effective Death Penalty

Act ("AEDPA"), 28 U.S.C. 2254, we may issue the writ if the SJC's

adjudication "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." 28 U.S.C. § 2254(d)(1); see Teti v. Bender, 507 F.3d 50,

56 (1st Cir. 2007). To be "contrary to" clearly established

Supreme Court law, a state court must "appl[y] a rule that

contradicts the governing law set forth in [the Supreme Court's]

cases" or "confronts a set of facts that are materially

indistinguishable from a decision of th[e] [Supreme] Court and

nevertheless arrives at a result different from [its] precedent."

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Alternatively, a

state court's decision runs afoul of the "unreasonable application"

prong if the court either "identifies the correct governing legal
-10-

rule from th[e] [Supreme] Court's cases but unreasonably applies it

to the facts of the particular state prisoner's case" or

"unreasonably extends a legal principle from [the Supreme Court's]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply." Id. at 407. The rule relied upon by the

petitioner for relief must be "clearly established law as

determined by th[e] [Supreme] Court," which refers to holdings, not

dicta. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004).

III.

A. Petitioner's Claim

Relying on the Supreme Court's decision in Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974), Dagley asserts that the

prosecutor's closing argument, in which he stated that "the

petitioner wants you to believe [his actions] were some sort of .

. . reasonable response or reasonable provocation or even sudden

combat," contributed to a violation of his due process rights under

the Fourteenth Amendment. In Donnelly, the Court recognized that

a prosecutor's closing argument could be sufficiently prejudicial

so as to constitute a deprivation of a petitioner's constitutional

rights. See id. Applying that decision to this case, Dagley

argues that the prosecutor's mention of a "reasonable response"

requirement gravely misstated the definition of manslaughter,

thereby misleading the jury into believing that such a response is
-11-

a required element of manslaughter and creating a fundamentally

unfair proceeding.

According to the petitioner, the harmful effect of the

prosecutor's misstatement is clear when one examines Dagley's trial

tactics. At trial, Dagley's sole defense was a claim that because

his actions were a response to a reasonable provocation by the

victim, the government could not establish that Dagley acted with

malice, a necessary element of murder. See, e.g., Commonwealth v.

Gladney, 607 N.E.2d 750, 755 (Mass. 1993); Commonwealth v. Boucher,

532 N.E.2d 37, 39 (Mass. 1989). Instead, Dagley argued, the

government could only prove that he committed manslaughter. In

Massachusetts, "if a person kills another in the heat of passion,

which is occasioned by adequate and reasonable provocation, or in

sudden combat, then even though that person had an intent to kill,

the killing is designated manslaughter and not murder because of

the mitigating circumstances." Commonwealth v. Whitman, 722 N.E.2d

1284, 1289 (Mass. 2000) (quoting Commonwealth v. Acevedo, 695

N.E.2d 1065, 1067 (1998)). In cases "[w]here the evidence raises

the possibility that the petitioner may have acted on reasonable

provocation, the Commonwealth must prove, and the jury must find,

beyond a reasonable doubt that the petitioner did not act on

reasonable provocation." Acevedo, 695 N.E.2d at 1067. Thus,

Dagley asserts, the error went to the heart of his defense.
 Petitioner concedes that the deferential AEDPA standard of 3

review applies to the SJC's decision. With that concession, the

petitioner acknowledges that the Kelly standard applied by the SJC

is "as least as protective of the [petitioner]'s rights as its

federal counterpart." Leftwich v. Maloney, No. 06-2583, 2008 WL

2600365, at *3 (1st Cir. July 2, 2008); see also Fortini v. Murphy,

257 F.3d 39, 47 (1st Cir. 2001) (noting that the AEDPA standard of

review applies only when the state court has decided the federal

issue). There is no precise federal standard governing due process

-12-

Compounding the prosecutor's error, according to Dagley,

was the trial judge's inadequate response to the error. Rather

than specifically instructing the jury to disregard the

prosecutor's misstatement, the judge's response was limited to

stating the elements of murder and manslaughter in the course of

giving its overall instructions to the jury. Thus, Dagley argues,

the taint from the prosecutor's misstatement had not been

adequately cured, leaving a lasting impression in the jury's mind

that his response had to be "reasonable" in order to satisfy the

requirements of manslaughter. He asserts that the combination of

the error, which reached to the heart of his defense, and this

failure by the trial judge to adequately address and cure such

error, made the entire proceeding "fundamentally unfair," thereby

amounting to an infringement of his due process rights.

B. The SJC's Decision

The SJC evaluated Dagley's prosecutorial error claim

under the standard outlined in Commonwealth v. Kelly, which sets

forth four factors for determining if a new trial is warranted.

629 N.E.2d 999, 1002 (Mass. 1994). The court examined (1) whether 3
claims based on a prosecutor's remarks. In its two cases directly

addressing the issue, the Supreme Court has concluded, based on the

circumstances of each case, that the petitioner's due process

rights had not been violated. See Donnelly, 416 U.S. at 642-45

(rejecting due process claim after considering, inter alia, the

likely impact of the prosecutor's remark when viewed in relation to

the entire trial, and the trial court's instructions to the jury);

Darden v. Wainwright, 477 U.S. 168, 178-83 (1986) (rejecting claim

based on the individual circumstances of the case, including the

trial judge's subsequent instructions to the jury and the strong

weight of the evidence against the petitioner); see also United

States v. Nelson-Rodríguez, 319 F.3d 12, 38 (1st Cir. 2003)

(reciting the standard we use to evaluate whether improper

statements made during closing argument are harmful, which focuses

on "(1) the severity of the prosecutor's misconduct, including

whether it was deliberate or accidental; (2) the context in which

the misconduct occurred; (3) whether the judge gave curative

instructions and the likely effect of such instructions; and (4)

the strength of the evidence against the defendants") (internal

quotation omitted). The Kelly standard, which guided the SJC's

analysis here, includes all of the factors explicitly considered by

the Court in Donnelly and Darden, or close variants thereof, and is

also functionally equivalent to our own standard for assessing such

claims.

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there was a timely objection, (2) whether the inaccuracy went to a

collateral issue or to the "heart of the case," (3) what steps the

judge took to mitigate the prosecutor's mistake, and (4) whether it

would "possibly make a difference in the jury's conclusion." See

id.

The SJC found that the first two factors weighed in favor

of Dagley. The court acknowledged Dagley's contemporaneous

objection to the prosecutor's statement. It also agreed with

Dagley that the prosecutorial error went to the heart of Dagley's

claim, as it addressed the elements required to establish the crime

of manslaughter. However, the SJC concluded that the third and
-14-

fourth Kelly factors weighed heavily in favor of the government.

On the third factor -- what steps the judge took to mitigate the

prosecutor's mistake -- the SJC found that the judge properly

instructed the jury on the distinction between murder and

manslaughter, including the concept of "reasonable provocation."

Although the trial court did not specifically address the

prosecutor's mistake by telling the jury to ignore the erroneous

statement, the trial judge did assure the jury throughout the

course of the trial that he would instruct them, both orally and in

writing, on all of the applicable issues of law. According to the

SJC, "from the outset [of the trial], the jury had been told that

they should look solely to the judge for an explanation of the

applicable legal principles, and to ignore any differing

explanations suggested by either of the attorneys." Based on its

examination of the trial court's conduct, the SJC concluded that

the judge's final instructions were adequate to cure any confusion

caused by the prosecutor's misstatement of the law, even though the

instructions did not specifically refer to the misstatement.

On the fourth factor, the SJC was "satisfied that the

prosecutor's statement would not have made any difference to the

jury's determination." Reciting the context in which the

prosecutor erred, the court suggested that it was nothing more than

a "slip of the tongue," meant only to summarize the petitioner's

contentions and not as an explicit legal definition of
-15-

manslaughter. Further, the SJC noted that the prosecutor's

argument was focused primarily on contesting the factual basis of

the petitioner's manslaughter defense that there was reasonable

provocation for his actions. In sum, the SJC concluded that,

viewed in the context of the proceedings as a whole, "the

prosecutor's fleeting reference to the concept of a 'reasonable

response' to provocation would not have affected the jury's

understanding of the distinction between manslaughter and murder."

Finding that the third and fourth prongs heavily favored the

government, the SJC concluded that there were "no grounds [in the

record] warranting relief."

C. Clearly Established Supreme Court Precedent

In assessing whether Dagley has met the high burdens

AEDPA imposes on him, we begin -- as a threshold matter -- by

determining whether there is clearly established Supreme Court law

applicable to Dagley's constitutional claim. On this point, Dagley

has rightly pointed us to the Court's decision in Donnelly v.

DeChristoforo. See 416 U.S. 637. As noted above, Donnelly stands

for the principle that a prosecutor's closing argument may be

sufficiently prejudicial so as to constitute a deprivation of a

petitioner's due process rights. Id. at 643. Although the Court

in Donnelly ultimately rejected the various arguments advanced by

the petitioner, noting that the prosecutor's erroneous remark was

"ambiguous" and was "followed by specific disapproving
-16-

instructions," it acknowledged implicitly that a prosecutor's

remarks may make a petitioner's trial "so fundamentally unfair as

to deny him due process." Id. at 645. The Court has applied the

principle of Donnelly in other cases, see, e.g., Darden, 477 U.S.

at 168, and, as a circuit, we have recognized this principle as

"clearly established federal law, as determined by the Supreme

Court." Olszewski, 466 F.3d at 53, 59; see also Fahy v. Horn, 516

F.3d 169, 198-99, 202 (3rd Cir. 2008) (applying the Donnelly and

Darden due process standard in the context of a habeas claim).

D. "Contrary to"

Next, Dagley must establish that the state-court decision

was either "contrary to, or involved an unreasonable application

of" Supreme Court precedent. 28 U.S.C. § 2254(d)(1). As noted

above, a state-court decision is "contrary to" Supreme Court

precedent "if it 'applies a rule that contradicts the governing law

set forth in our cases' or if it 'confronts a set of facts that are

materially indistinguishable from a decision of this Court and

nevertheless arrives at a result different from our precedent.'"

Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S.

at 405-406). A failure to cite Supreme Court decisions does not

itself suggest a state court decision is "contrary to" such

precedents, Mitchell v. Esparza, 540 U.S. 12, 16 (2003), "so long

as neither the reasoning nor the result of the state-court decision

contradicts them," id. (quoting Early, 537 U.S. at 8).
 By affirming the conviction, the Court reversed the decision 4

of a divided panel of this court that granted Donnelly's habeas

petition. See DeChristoforo v. Donnelly, 473 F.2d 1236 (1st Cir.

1973). 

 The context in which this statement was made is relevant to 5

understanding its potential harm to Donnelly. Because Donnelly's

co-petitioner had decided to plead guilty to a charge of seconddegree murder at the close of the evidence but before final

argument, we inferred that the jury might interpret the

prosecutor's statement as conveying the false impression that

Donnelly had unsuccessfully sought to plead to a lesser charge in

the case. Accordingly, we found that the prosecutor's actions

deliberately misled the jury on a critical point, thereby depriving

Donnelly of a constitutionally fair trial. Donnelly, 416 U.S. at

641-42.

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Here, Dagley has failed to show that either the reasoning

or the result of the SJC's decision contradicts the Court's

precedents. In Donnelly, the decision upon which Dagley relies,

the Supreme Court affirmed the habeas petitioner's conviction in

the face of arguments that the prosecutor's remarks during a

closing argument deprived the petitioner of his due process rights.

416 U.S. at 638. During the closing arguments in Donnelly, the 4

prosecutor implied that the petitioner had wanted to plead guilty

but was denied the opportunity. He then stated that the petitioner

and his counsel "hope that you find him guilty of something a

little less than first-degree murder." Id. at 640. After the 5

petitioner's counsel promptly objected to the statement and

requested a response from the court, the trial judge instructed the

jury not to consider any of the closing arguments as evidence,
 In Donnelly, the trial court gave the following instruction 6

to the jury:

Closing arguments are not evidence for your

consideration. . . .

Now in his closing, the District Attorney, I

noted, made a statement: "I don't know what

they want you to do by way of a verdict. They

said they hope that you find him not guilty. I

quite frankly think that they hope that you

find him guilty of something a little less

than first-degree murder." There is no

evidence of that whatsoever, of course, you

are instructed to disregard that statement

made by the District Attorney.

Consider the case as though no such statement

was made.

Id. at 641.

-18-

including, specifically, the prosecutor's misstatement regarding

Donnelly's willingness to plea.6

The Supreme Court rejected the petitioner's assertion

that the remark "so infected the trial with unfairness as to make

the resulting conviction a denial of due process." Id. at 643.

Reviewing the record as a whole, it warned courts against giving

too much weight to stray remarks in the course of a closing

argument or assuming that the jury would interpret each and every

statement in the most damaging manner possible. Id. at 647.

Accordingly, it concluded that "the prosecutor's remark here,

admittedly an ambiguous one, was but one moment in an extended

trial and was followed by specific disapproving instructions.

Although the process of constitutional line drawing in this regard

is necessarily imprecise, we simply do not believe that this
-19-

incident made respondent's trial so fundamentally unfair as to deny

him due process." Id. at 645.

The SJC's approach in addressing Dagley's claim was

similar in substance to the approach taken by the Supreme Court in

Donnelly. Evaluating the entire record to determine if the trial

was so "fundamentally unfair as to deny him due process," the Court

in Donnelly considered, inter alia, the seriousness of the improper

remark, the context in which the statement was made, the court's

response or curative instructions, and the effect of the statement

on the overall proceeding. Id. at 644-47; see also United States

v. Ingraldi, 793 F.2d 408, 416 (1st Cir. 1986) (evaluating whether

a new trial was required for prosecutorial misconduct by

considering the severity of the misconduct, whether it was

deliberate or accidental, the context in which it occurred, the

likely curative effect of the judge's admonitions and the strength

of the evidence against the petitioner). The Kelly factors, which

guided the SJC's analysis here, focus on the same considerations

explicitly addressed by the Court in Donnelly. See supra n.3. The

SJC did not treat one factor as determinative, nor did it ignore

any factor the Supreme Court deemed essential to its decision in

Donnelly. Accordingly, the SJC's approach was not contrary to

Supreme Court precedent. Moreover, because the facts of this case

are distinguishable from any Supreme Court decision recognizing a
-20-

due process violation, the result is not contrary to any clearly

established law. See Williams, 529 U.S. at 405.

E. "Unreasonable Application of"

To meet this standard, a petitioner must establish that

the state court decision identifies the correct governing legal

principle, but applies it in an objectively unreasonable manner to

the facts of the case. Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003). The decision must be "more than incorrect or erroneous."

Id. at 75. In addition, where the applicable rule is general in

nature, such as the Donnelly fundamental unfairness standard, state

courts have "more leeway . . . in reaching outcomes in [their]

case-by-case determinations." Yarborough, 541 U.S. at 664.

The SJC's analysis of the Kelly factors was a reasonable

application of established Supreme Court precedent. The

prosecutorial misconduct at issue in this case is less severe than

the conduct evaluated by the Court in Donnelly, where the

prosecutor, responding to defense counsel's expressed hope that the

jury would return a verdict of not guilty in a first-degree murder

case, intimated that the petitioner had wanted to plead guilty but

was denied the opportunity. By contrast, the prosecutor's

misstatement to the jury in this case was a single, isolated and

unelaborated reference in the course of an extended closing

argument intended to summarize the petitioner's various assertions.

Further, the trial judge addressed the prosecutor's error, albeit
 As an additional argument on appeal, petitioner claims that 7

the jury's return of a first-degree murder verdict based on a

theory of "extreme atrocity or cruelty" rather than "premeditation"

suggests that the jury accepted the petitioner's testimony that he

did not possess a specific intent to kill the victim, as required

under a theory of premeditation, but found first-degree murder

appropriate based on the petitioner's failure to meet the erroneous

"reasonable response" element. The logic of this argument is not

entirely clear from the petitioner's brief. Petitioner appears to

be arguing that because the jury rejected the prosecutor's version

of the crime, it would have accepted the petitioner's manslaughter

version had it not been for the prosecutor's "reasonable response"

misstatement of the law. In other words, the misstatement caused

the jury to focus predominantly on the conduct of the petitioner

rather than his intent, thereby accentuating the significance of

the prosecutor's misstatement. This assertion involves

considerable speculation on the part of the petitioner. Moreover,

the underlying logic of the argument is dubious. In order to

convict an individual for first-degree murder under a theory of

extreme atrocity or cruelty, the jury still must make some

determination about the petitioner's intent. See, e.g.,

Commonwealth v. Cunneen, 449 N.E.2d 658, 664-65 (Mass. 1983)

(discussing the intent required for a conviction of murder in the

first degree with extreme atrocity or cruelty). Thus, the jury's

focus was not solely on the petitioner's conduct and whether it

could be deemed a reasonable response to provocation. Furthermore,

the court instructed the jury to focus on how the petitioner

committed the crime in its instruction on first-degree murder by

extreme atrocity and cruelty. To suggest that it was only the

prosecutor's misstatement that focused the jury on how the

petitioner committed the crime contradicts the explicit

instructions that the court gave.

-21-

indirectly, through accurate oral and written jury instructions.

In sum, the potential effect that the prosecutor's statement might

have had on Dagley's trial does not approach that present in

Donnelly. See Darden, 477 U.S. at 181-82 (finding that a 7

prosecutor's several erroneous and inflammatory statements during

closing argument did not "so infect[] the trial with unfairness as
-22-

to make the resulting conviction a denial of due process" (quoting

Donnelly, 416 U.S. at 637)).

Most notable for purposes of Dagley's claim is the SJC's

discussion of the third factor -- the mitigating steps the trial

court took in response to the prosecutorial error. Although Dagley

argues that the trial court's failure to specifically address the

prosecutor's misstatement to the jury made the statement more

prejudicial overall than the one in Donnelly, where the court

directly told the jury to disregard the prosecutor's misstatement,

the SJC's conclusion regarding the trial court's handling of the

prosecutor's misstatement is far from unreasonable. As the SJC

points out, the trial judge took reasonable steps to clarify the

prosecutor's misstatement of the law by providing both oral and

written instructions to the jury correctly explaining the different

elements of murder and manslaughter. This explanation followed

statements by the judge on several occasions throughout the trial

to the jury that they would be given the proper legal instructions

orally and in writing at the close of the proceedings. Although a

direct instruction responding to a prosecutorial error may have

been preferable, the SJC was correct in finding that such an

instruction was not required in this case. The SJC's conclusion on

this factor -- that the judge's steps to remedy the mistake were

sensible under the circumstances -- does not represent an

unreasonable application of Donnelly.

Affirmed.