Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 08-1094

DIANE E. FARLEY,

Petitioner, Appellant,

v.

LYNN BISSONNETTE, SUPERINTENDENT,

MASSACHUSETTS CORRECTIONAL INSTITUTION, FRAMINGHAM,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Lynch, Chief Judge,

Boudin, Circuit Judge,

and Schwarzer, District Judge. *

Brownlow M. Speer, Committee For Public Counsel Services,

Public Defender Division, for appellant.

Randall E. Ravitz, Assistant Attorney General, Criminal

Bureau, with whom Martha Coakley, Attorney General, was on brief

for appellee.

October 8, 2008
Over and above the supposed stain, blood consistent with 1

Farley's was found on Marsceill's body, under one of Marsceill's

fingernails, and on the bedspread. Both Farley's and Marsceill's

blood were found on a bathrobe in the living room. There was also

forensic evidence linking May to the scene but he admitted having

been there on an earlier evening, and Farley never claimed that she

had seen May at Marsceill's house the night of the murder. 

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BOUDIN, Circuit Judge. Diane Farley spent a portion of

the evening of April 23, 1993, at the home of Sarah Ann Marsceill

in Dedham, Massachusetts. The two went out together, returning to

Marsceill's home in the early morning hours of April 24. Farley

remained there until around 9:30 a.m. Driven away by a friend,

Farley was said to have had a dark, wet stain on her trousers, for

which she offered inconsistent explanations, and to have had a roll

of twenty dollar bills even though she had earlier said she had no

money. Later that afternoon, Marsceill was found dead in her

bedroom, having been stabbed to death in a bloody fashion. 

Farley was tried and convicted of first degree murder.

There was some forensic evidence against Farley, enhanced by her 1

observed presence at the scene, arguable evidence of a quarrel

between the two women, and various inconsistent statements and

positions offered by Farley. An initial conviction was reversed

for ineffective assistance of counsel, Commonwealth v. Farley

(Farley I), 732 N.E.2d 893 (Mass. 2000), but her conviction after

a retrial was affirmed. Commonwealth v. Farley (Farley II), 824

N.E.2d 797 (Mass. 2005). 
The Commonwealth read portions of Farley's testimony from the 2

first trial and before the grand jury into the record and played an

audiotape of Farley's interview at the police station; in addition,

the investigating officer testified about Farley's various

statements. Farley II, 824 N.E.2d at 802 n.8.

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Farley then sought habeas relief in the district court.

Although the district court denied relief, Farley v. Bissonnette,

No. 06-10672-GAO, 2007 WL 4377608 (D. Mass. Dec. 11, 2007), it

granted a certificate of appealability as to two questions. The

first (we set forth the second one later in this opinion) was

whether "the trial judge's instruction to the jury that the

prosecution 'does not have the burden of proving that no one else

may have committed the murder' [was] an error that was contrary to

clearly established Supreme Court precedent as stated in In re

Winship, 397 U.S. 358 (1970)." Farley v. Bissonnette, No. 06-

10672, 2008 WL 227870 (D. Mass. Jan. 28, 2008).

The context for the instruction was Farley's contention

at trial that the murder had been committed not by Farley but by

one of two other named individuals: Michael May, who admitted to

a brief association with Marsceill, or Ronald James, said to be a

drug dealer. Farley did not testify at trial, but the jury heard

government evidence that she had initially told police and

testified before the grand jury that she left while James and

Marsceill were arguing and then later changed her explanation to a

claim that James had stabbed both women. The Commonwealth called 2
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both James and May as witnesses; both said that they had not even

been at the Marsceill house on the night of the murder. 

The trial judge, at the Commonwealth's request and over

Farley's objection, told the jury that Farley was presumed innocent

and the Commonwealth had the burden of proving her guilty of every

element of the crime beyond a reasonable doubt, but that "[t]he

Commonwealth does not have the burden of proving that no one else

may have committed the murder." Farley II, 824 N.E.2d at 802 n.10.

Farley says that this was error because her defense--that May or

James had committed the murder--meant that this premise had to be

disproved in order to find her guilty and so was part of the

prosecution's burden.

Because this claim (and the one that follows) were

resolved on the merits by the state court, our review is governed

by the standard set forth in the Anti-Terrorism and Effective Death

Penalty Act (AEDPA), namely, we ask whether the state decision "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) (2006). In this instance,

this required deference does not matter: the instruction at issue

does not contravene Winship.

The jury was told repeatedly that the Commonwealth had to

prove beyond a reasonable doubt that Farley had committed the

murder, whose elements under Massachusetts law were defined in the
 The challenged instruction appeared between two sentences 3

stating that the prosecution had the burden of proof beyond a

reasonable doubt as to each element of the crime, a burden that was

repeated at least ten additional times in the instruction.

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instructions. The proposition that Farley says the government had 3

to prove--that neither May nor James had committed the murder--is

not an element of the crime (such as "premeditation"); it is a

factual assertion that might, or might not, be relevant in the

jury's evaluation of the evidence against Farley.

Farley argues that if May or James murdered Marsceill,

then this would automatically exculpate Farley; but this is not

necessarily so since she could also have aided or participated.

And even in a case where in context it had to be so, the

prosecution would be perfectly free to concentrate on the evidence

that implicated Farley without in any way countering evidence

relied on by Farley to show that someone else had motive,

opportunity, access and so forth.

Thus, where the defense attempts to cast the blame on

someone other than the defendant, it is not unusual for the court

to remind the jury that the government's burden is to show that the

defendant is guilty--not that the other person whom the defendant

seeks to blame is innocent. In Jackson v. Virginia, 443 U.S. 307

(1979), the Court itself observed that Winship does not place "the

prosecution . . . under an affirmative duty to rule out every

hypothesis except that of guilt beyond a reasonable doubt." Id. at
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326. The contested instruction in this case did no more than

repeat Jackson's caveat.

Every instruction must be judged on its own terms,

including the language used and the context of facts and arguments

offered in the case. See Victor v. Nebraska, 511 U.S. 1, 6 (1994)

(the relevant question is "whether there is a reasonable likelihood

that the jury understood the instructions to allow conviction based

on proof insufficient to meet the Winship standard"). Perhaps some

rare case might arise in which a warning by the judge as to what

the government did not have to prove might confuse the situation or

lead the jury to believe that a legitimate argument by the defense

was logically irrelevant. Taking the instructions as a whole, see

Estelle v. McGuire, 502 U.S. 62, 72 (1991), nothing of the sort

occurred in this case.

Farley's second claim is that the trial court violated

her Sixth Amendment Confrontation Clause right under Delaware v.

Van Arsdall, 475 U.S. 673 (1986), by limiting her cross-examination

of James. This is reflected in the district court's second

certified issue, namely, whether "the state court's decision that

the trial judge's limitation of the petitioner's cross-examination

of Ronald James, though error, was harmless beyond a reasonable

doubt [was] an unreasonable application of clearly established

Supreme Court precedent, namely, Delaware v. Van Arsdall, 475 U.S.

673 (1986)." Farley, 2008 WL 227870, at *1. 
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James had testified that he did not know May. On crossexamination, Farley wanted to show this testimony was false by

questioning James about his relationship to Sarah Zene, a former

drug runner who was going to testify that she had delivered drugs

for James to May and that the two knew one another. The trial

judge allowed James to invoke his Fifth Amendment privilege to

block this line of questioning. 

The Supreme Judicial Court held that the trial judge

should have allowed the questioning because in its view James had

waived the privilege by testimony he had given in the first trial;

but, the SJC found the error harmless beyond a reasonable doubt

under Chapman v. California, 386 U.S. 18 (1967), because Zene

herself testified in the second trial that she had delivered drugs

for James to May and that the two knew one another. The SJC said

that the cross-examination would at best have been cumulative.

Again, the SJC gets deference under AEDPA so, strictly

speaking, the question is not our own judgment about Chapman and

Van Arsdall but the reasonableness of the SJC's application, see

Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003); Hurtado v. Tucker,

245 F.3d 7, 20 (1st Cir.), cert. denied, 534 U.S. 925 (2001),

substituting a more deferential form of harmless error review on

habeas. See generally Fry v. Pliler, 127 S. Ct. 2321, 2327-28

(2007); Brecht v. Abrahamson, 507 U.S. 619 (1993). In all events,

we would reach the same decision ourselves.
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Farley does not claim that the cross-examination was

designed to do anything other than attack James' credibility. His

credibility was relevant since Farley--seeking to suggest that

James might have committed the crime--had to challenge his denial

of involvement. But Farley's counsel was able to raise serious

questions about James' credibility on cross-examination through

evidence of his prior criminal conviction and prior inconsistent

statements. When Zene then testified that James did know May, she

added a further contradiction and supplied the information that

Farley had wanted to elicit on cross-examination.

Doubtless it is often best to have the witness being

impeached made on cross-examination himself to admit he was lying;

but (as we have explained) James' general credibility was amply put

in question. It is pure speculation to think that he would have

admitted to knowing May after flatly denying it; and, if he had, it

would have been an admission to a fact to which Zene herself

testified. There is no reason whatever to think that crossexamination would have changed the result.

In Van Arsdall, the Court mentioned a number of factors

bearing on an assessment of harmlessness, including the importance

of the testimony foreclosed, whether it was cumulative, the extent

of cross-examination otherwise permitted, "and, of course, the

overall strength of the prosecution's case." 475 U.S. at 684.

Here, the excluded cross-examination was on a collateral issue--
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that is, for impeachment and not the merits--and largely

cumulative; it is worth adding that the prosecution's case was

strong.

Although no eye witness saw Farley commit the murder, she

alone had been observed at the scene, there was arguable evidence

of a quarrel between the women, both the dark patch and the mingled

blood samples linked Farley to the crime, and her inconsistent

statements enhanced suspicion. By contrast, nothing directly

linked James to the crime beyond Farley's prior claims that James

had stabbed both women--a claim presented to the jury only through

her prior testimony and statements to the police. See note 2,

above. The chance of shifting blame to James was slight indeed.

The denial of the writ is affirmed.