United States Court of Appeals

For the First Circuit

No. 05-1640

JAMES MICHAEL KATER,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Lynch and Lipez, 

Circuit Judges.

Joseph F. Krowski, with whom Law Office of Joseph F. Krowski

was on brief, for appellant.

Susanne G. Reardon, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief, for appellee. 

August 14, 2006
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LYNCH, Circuit Judge. James Michael Kater, who is

serving a life sentence for murder and kidnapping, appeals from the

district court's denial of his petition for habeas corpus relief

under 28 U.S.C. § 2254. Our review is subject to the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (1996). Kater's habeas petition raises,

inter alia, a due process claim based on the introduction of a

prior bad act for the purpose of establishing identity, an unusual

voir dire claim, and a claim under the Confrontation Clause related

to the introduction of testimony by previously hypnotized

witnesses. We reject Kater's claims, affirm the district court's

denial of the petition, and resolve one issue of first impression

for this court.

We address Kater's assumption that in a federal habeas

proceeding on de novo review of a state court's judgment under

Fortini v. Murphy, 257 F.3d 39 (1st Cir. 2001), we may apply a new

rule of law, which was not clearly established by existing

precedent at the time the state conviction became final. Our

circuit law has not yet addressed this aftermath issue to Fortini,

which held that, post-AEDPA, preserved federal constitutional

claims on habeas would be reviewed de novo, when such claims were

not "adjudicated on the merits in State court proceedings." 28

U.S.C. § 2254(d); Fortini, 257 F.3d at 47. While we consider such

claims "de novo," that does not mean we review those claims as an
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original matter, as if the claims were raised on direct appeal.

Rather, the claims of habeas petitioners, even on de novo review

under Fortini, continue to be limited by the principles laid out in

Teague v. Lane, 489 U.S. 288 (1989), and its progeny, which

generally bar claims that require the application or announcement

of "new rules" of law.

I.

This case has an over twenty-year history in the courts

of Massachusetts. We begin with a thumbnail sketch of that history

to set the stage. 

Kater was indicted in 1978 in Massachusetts for the

kidnapping and murder of a fifteen-year-old girl, Mary Lou Arruda.

He was convicted in 1979, but the Massachusetts Supreme Judicial

Court (SJC) reversed the conviction because certain hypnotically

aided testimony had been introduced at trial. Commonwealth v.

Kater (Kater I), 447 N.E.2d 1190 (Mass. 1983). The SJC ordered the

trial court on remand to hold a hearing and to admit only such

testimony as was based on pre-hypnotic memories. Commonwealth v.

Kater (Kater II), 476 N.E.2d 593 (Mass. 1985). After two more
 After a second conviction in 1986, the SJC reversed the 1

conviction again based on the introduction of hypnotically aided

testimony. Commonwealth v. Kater (Kater III), 567 N.E.2d 885

(Mass. 1991). It later affirmed a trial court order suppressing

certain evidence that the state had failed to show was based on

pre-hypnotic memory. Commonwealth v. Kater (Kater IV), 592 N.E.2d

1328 (Mass. 1992). A third trial ended in a mistrial.

 Kater failed in his double jeopardy challenge to the 2

indictment leading to the fourth trial. See Kater v. Commonwealth

(Kater V), 653 N.E.2d 576 (Mass. 1995).

 The SJC rejected as premature Kater's interlocutory 3

challenge to the admission of this prior bad act evidence. Kater

v. Commonwealth (Kater VI), 659 N.E.2d 273 (Mass. 1995). 

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trials ended inconclusively, Kater was tried for a fourth time. 1 2

Kater was convicted after his fourth trial, in 1996; this

conviction was upheld by the SJC. Commonwealth v. Kater (Kater

VII), 734 N.E.2d 1164 (Mass. 2000). It is the affirmance of his

conviction at his fourth trial which is at issue here.

Before the fourth trial began, the state trial court

ordered that the testimony of previously hypnotized witnesses be

limited to facts that had been documented in the record before the

witnesses had been hypnotized. Id. at 1177. This was more

favorable to Kater than the SJC's directive that pre-hypnotic

testimony be separated from hypnotically aided testimony. Id. The

trial court also ruled, at motion in limine before trial, that the

prosecution could introduce evidence of Kater's state conviction

for a similar kidnapping, for the purpose of establishing Kater's

identity. Id. at 1172, 1175. The SJC affirmed this ruling. Id. 3

at 1176.
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At jury selection, on Kater's motion and with the

Commonwealth's agreement, the state trial court asked potential

jurors individually a second round of questions. After describing

Kater's prior conviction, the judge asked whether knowledge of that

conviction would affect the jurors' ability to accept and

understand the presumption of innocence and the limitation on the

use of prior bad act evidence to the issue of identification. Id.

Seven of fifteen jurors were struck based on their responses to

these questions.

The trial court later decided that voir dire on the prior

bad acts was inappropriate, and excused the previously selected

jurors. Id. It did so for two reasons. First, it found that "if

evidence of other crimes were admitted, it would not be extraneous

within the meaning of [Mass. Gen. Laws ch. 234, § 28], and voir

dire would not be authorized." Id. The court referred to state

law "provid[ing] that a trial judge must, for the purpose of

determining whether a juror stands indifferent in a case, conduct

an individual voir dire of each prospective juror if it appears

that a substantial risk exists that an extraneous issue might

affect the outcome of the case." Id. (citing Mass. Gen. Laws ch.

234, § 28). The SJC said that, under Massachusetts law, "[a]n

extraneous issue is one that goes beyond the record and raises a

serious question of possible prejudice." Id. at 1175. Second, the

trial court found that "if the evidence [of prior bad acts] were
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ultimately not admitted at trial, the questions would have then

contaminated the jury." Id. at 1174. Jury selection then began

anew without any inquiry as to Kater's prior conviction.

The SJC affirmed the reasoning of the state trial court

on the voir dire issue on state law grounds. Id. at 1174-75

("Kater's obstacle is that the issue of his prior similar crime was

not extraneous. . . . Here, the issue of Kater's prior similar

crime did not lie beyond the record. Evidence of the prior similar

crime was fully relevant and probative on the issue of Kater's

identity as the perpetrator.").

II.

We briefly recount the facts as found by the state court,

which are detailed in Kater VII, 734 N.E.2d at 1170-72. Arruda

disappeared in September 1978 while riding a bike near her home in

Raynham, Massachusetts. Her bike was found the same day; nearby

was a Benson & Hedges cigarette and a car tire track with an

acceleration mark and an abnormal tread wear pattern. Two months

later, in November 1978, Arruda's clothed body was found tied to a

tree. A pathologist testified that Arruda had been tied to the

tree while conscious, but that she lost consciousness and that the

weight of Arruda's head against the restraint around her neck

strangled her. Id. at 1170.

Around the time Arruda disappeared, five individuals saw

a green car with a black or silver stripe speeding through the
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neighborhood where Arruda had been abducted. Id. Four of these

witnesses were hypnotized during the course of the investigation

into Arruda's disappearance. Kater I, 447 N.E.2d at 1194. At

trial, the five witnesses testified that Kater's car was similar in

color, size, and markings to the car they had seen on the day of

Arruda's disappearance. Kater VII, 734 N.E.2d at 1171. One person

described the driver of the car as a white male with dark curly

hair and dark-rimmed glasses. Police developed a composite sketch

of the driver based on eyewitness accounts. Id. at 1170.

While Arruda was still missing, Kater was interviewed by

the police. The police noted that Kater smoked Benson & Hedges

cigarettes, and that his appearance matched both the composite

sketch and the description of the driver given by one witness.

Kater allowed the police to search his car, a bright green Opel

with a black racing stripe. The right front tire tread of the car

had a unusual wear pattern consistent with the tire track found

near Arruda's bicycle. In the car the police found two cartons of

Benson & Hedges cigarettes and two pairs of dark-rimmed glasses.

In the trunk of the car, under some luggage, the police found two

newspapers, each open to articles about Arruda's disappearance.

Kater made a statement to the police as to his whereabouts at the

time of Arruda's disappearance, but the SJC found Kater's alibi to

have been inaccurate. Id. at 1171.
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Kater, in 1969, had pled guilty to a crime which the SJC

stated was "strikingly similar" to the one perpetrated against

Arruda. Id. at 1176. Evidence of this prior conviction was

introduced at Kater's fourth trial for the purpose of establishing

Kater's identity as the perpetrator of the crime against Arruda.

Kater had abducted a thirteen-year-old girl, Jacalyn Bussiere, who

was walking her bicycle on a secluded street. He forced her into

his car and drove her to a wooded area. Kater hit Bussiere over

the head and tried to force her face into a stream. After Bussiere

fought back, Kater forced Bussiere into the car again and drove her

deeper into the woods, where he tied her hands, ankles, torso and

neck against a tree; this was similar to how Arruda's body had been

found tied. Bussiere lost consciousness for some time, but

eventually managed to free herself and report the crime to the

police. Id. She identified Kater as her assailant. Id. at 1172

n.3.

Kater was convicted of the kidnapping and murder of

Arruda, and sentenced to life imprisonment without the possibility

of parole. Id. at 1170.

III.

It is a fundamental principle of the law of federal

habeas corpus in non-death-penalty cases that no habeas claim is

stated as to state court criminal convictions unless the alleged

errors are violations of the Constitution, laws, or treaties of the
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United States. Estelle v. McGuire, 502 U.S. 62, 67, 68 (1991); see

also 28 U.S.C. §§ 2241(c)(3), 2254(a). Errors based on violations

of state law are not within the reach of federal habeas petitions

unless there is a federal constitutional claim raised. Estelle,

502 U.S. at 67-68.

Indeed, the question of whether anything at trial

violated state law in a non-death-penalty case is no part of a

federal habeas court's review of a state conviction. Id. at 67.

This reflects the reality under the Constitution that the states

are free to adopt any number of different rules for criminal

proceedings so long as the application of those rules does not

violate federal constitutional requirements. See id. at 70

("Cases in this Court have long proceeded on the premise that the

Due Process Clause guarantees the fundamental elements of fairness

in a criminal trial. . . . But it has never been thought that such

cases establish this Court as a rule making organ for the

promulgation of state rules of criminal procedure." (internal

quotation marks omitted) (quoting Spencer v. Texas, 385 U.S. 554,

563-64 (1967))).

The Commonwealth argues for dismissal of the petition on

the basis that only state-law claims are asserted. We agree with

the Commonwealth that if nothing other than questions of compliance

with state law were at issue, no habeas petition would lie. There

are, though, no clean and clear dividing lines for the federal
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courts as to when a state court ruling about state law, on

evidentiary or other grounds, may transgress the Constitution. The

habeas petition here is framed in terms of violations of federal

law, and we deal only with the federal questions presented. 

The Supreme Court has "defined the category of

infractions that violate 'fundamental fairness' very narrowly."

Dowling v. United States, 493 U.S. 342, 352 (1990). The petitioner

argues that his state trial was so fundamentally unfair as to

violate due process of law under the Fifth and Fourteenth

Amendments to the U.S. Constitution. Kater argues that it was

unconstitutional to admit certain types of evidence and not to

conduct voir dire. He argues that evidence about his prior crime

(for which he was convicted in 1969), which was admitted under the

exception to the exclusion for prior bad acts evidence for evidence

tending to show identity, was constitutionally barred. He also

argues that his trial was fundamentally unfair because the trial

judge refused to ask voir dire questions describing the evidence of

the prior crime, already determined to be admissible, and asking

whether the potential jurors would remain unaffected by the

evidence. This failure to ask the voir dire questions, he says,

resulted in a jury biased against him, in violation of the Sixth

and Fourteenth Amendments. Kater also argues that it was

unconstitutional to admit testimony from witnesses who were once

hypnotized. Finally, he says, the federal Constitution was
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offended, under Jackson v. Virginia, 443 U.S. 307 (1979), when the

jury convicted him based on insufficient evidence.

All of these issues were presented in federal

constitutional terms to the SJC. The SJC ruled on the sufficiency

of the evidence and admission of the prior bad acts in federal

constitutional terms, see Kater VII, 734 N.E.2d at 1173, 1175-76,

and so we address these claims through the lens of the deferential

statutory standards under AEDPA. See 28 U.S.C. § 2254(d). As to

these claims, Kater must show the SJC's decision "1) '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) 'was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.'" McCambridge v. Hall, 303 F.3d 24, 34 (1st Cir. 2002)

(en banc) (quoting 28 U.S.C. § 2254(d)). 

As to the admission of evidence from once-hypnotized

witnesses and the voir dire issue, the SJC did not address those

issues in federal constitutional terms, so our review is de novo.

DiBenedetto v. Hall, 272 F.3d 1, 6-7 (1st Cir. 2001); see also

Fortini, 257 F.3d at 47 ("AEDPA imposes a requirement of deference

to state court decisions, but we can hardly defer to the state

court on an issue that the state court did not address."). Before

tackling the merits of Kater's claims, it is important to correct

a flawed assumption, present in Kater's argument on the voir dire
 There is, of course, the need for a habeas petitioner to 4

have met "certain preliminary criteria before we can reach the

merits of his claim," such as fair presentation of claims to the

state court, exhaustion of state remedies, and the lack of

procedural default. See McCambridge, 303 F.3d at 34.

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point, as to what "de novo" review under Fortini means and to

clarify our standard of review. 

In the end, none of these purported errors -- voir dire,

introduction of evidence, or sufficiency of evidence -- raises a

plausible claim of denial of federal constitutional rights,

notwithstanding the very able advocacy by Kater's counsel.

A. De Novo Review in Habeas Cases

In arguing that voir dire on the effect of prior bad act

evidence is constitutionally mandated, Kater points to state court

cases, and argues that these cases "suggest the way [the] Supreme

Court would rule." Kater wrongly assumes that "de novo" review

after AEDPA, which applies when the state court did not adjudicate

the presented federal constitutional issue on the merits, see

Fortini, 257 F.3d at 47, means that this court can decide the 4

issue as an original matter, whether or not the result would be the

announcement of a new rule that has not yet been clearly

established by existing precedent. Not so. De novo review under

Fortini does not eliminate the need for a habeas court to engage in

the analysis mandated by Teague v. Lane, 489 U.S. 288 (1989). 
 The general rule is subject to exceptions not relevant here. 5

See Sepulveda, 330 F.3d at 59-60 (describing the exceptions). 

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Teague and its progeny remain good law after AEDPA.

Teague analysis applies in habeas cases filed before AEDPA's

effective date. See Schriro v. Summerlin, 542 U.S. 348, 351-52

(2004). Teague analysis applies even in cases to which the AEDPA

standard of review, 28 U.S.C. § 2254(d)(1), applies. See Horn v.

Banks, 536 U.S. 266, 272 (2002) (per curiam) (noting that "the

AEDPA and Teague inquiries are distinct"); see also Sepulveda v.

United States, 330 F.3d 55, 66 (1st Cir. 2003) (requiring Teague

analysis for claims of federal habeas petitioners under § 2255).

Kater's assumption -- that a federal court engaged in de novo

review does not ask whether a particular claim is based on already

clearly established federal law -- would lead to an end-run around

the Teague doctrine. 

In its canonical form, Teague generally bars habeas

claims based on retroactive application of "new rules" announced

after a state conviction has become final. 489 U.S. at 310 5

(plurality opinion). This rule has also been interpreted to mean

that habeas claims requiring the announcement of new rules are also

generally barred. See Saffle v. Parks, 494 U.S. 484, 487-88 (1990)

("As [petitioner] is before us on collateral review, we must first

determine whether the relief sought would create a new rule [under

Teague]. If so, we will neither announce nor apply the new rule
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sought by [petitioner] unless it would fall into one of two narrow

exceptions." (citations omitted)). 

"To apply the paradigm of nonretroactivity required by

Teague, we must determine when the petitioner's conviction became

final and 'whether a state court considering [the petitioner's]

claim at the time his conviction became final would have felt

compelled by existing precedent to conclude that the rule [he]

seeks was required by the Constitution.'" Curtis v. Duval, 124

F.3d 1, 5 (1st Cir. 1997) (emphasis added) (quoting Saffle, 494

U.S. at 488). In other words, a rule is new under Teague if it is

not "compelled by existing precedent." Id.; see also Beard v.

Banks, 542 U.S. 406, 413 (2004) (question under Teague is whether,

as of the time the conviction became final, the rule was "'dictated

by then-existing precedent'" (quoting Lambrix v. Singletary, 520

U.S. 518, 527-28 (1997))).

The Teague analysis, while different than the AEDPA

standard, is related to AEDPA review in at least one sense. That

is because, under AEDPA, the inquiry on habeas is whether the

habeas claim is based on "clearly established Federal law." 28

U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 412

(2000). Whatever the differences between the Teague analysis and

the standard of review in AEDPA, the focus of both is, in essence,

on the substantive standards set by clearly established federal

law. Whether habeas review is under the deferential standard
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provided in § 2254(d)(1) or under the de novo standard of Fortini,

state habeas petitioners may not seek release on federal law

grounds which have yet to be clearly established. Thus, in this

case, it is irrelevant whether (as the petitioner asserts) the

Supreme Court might someday recognize a constitutional right to

voir dire on prior bad acts evidence. The question, under Teague,

is whether such a constitutional right was clearly established by

existing precedent at the time the state conviction became final.

B. Claims Related to Kater's Prior Conviction 

We start with what may be the most important issue to

Kater -- the arguments based on use of evidence of his prior

conviction. It is commonly said that "mere" errors under state law

in the admission of evidence are not cognizable under federal

habeas review. See 1 Hertz & Liebman, Federal Habeas Corpus

Practice and Procedure § 9.1, at 411-12 (4th ed. 2001). This means

that the question is not whether the admission of the evidence was

state-law error, but whether any error rendered the trial so

fundamentally unfair that it violated the Due Process Clause. See

Petrillo v. O'Neill, 428 F.3d 41, 44 & n.2 (1st Cir. 2005); see

also Fortini, 257 F.3d at 47 ("[N]ot every ad hoc mistake in

applying state evidence rules, even in a murder case, should be

called a violation of due process; otherwise every significant

state court error in excluding evidence offered by the defendant

would be a basis for undoing the conviction.").
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1. Admission of Prior 1969 Conviction

Kater argues that the evidence of his prior conviction

was not in fact relevant to identity under Massachusetts state law,

and that this mistake was so serious as to be federally cognizable.

He also argues that the evidence, even if thought to be relevant to

identity, was so prejudicial as to make his trial fundamentally

unfair. 

He also complains, incorrectly, that the state court

should have been bound by the federal law of the case doctrine and

therefore should have excluded the prior bad acts evidence because

it had not been admitted in the prior three trials. The federal

law of the case doctrine does not apply to state courts. See

Estelle, 502 U.S. at 67-68; see also Arizona v. California, 460

U.S. 605, 618 (1983) ("Law of the case directs a court's

discretion, it does not limit the tribunal's power.").

It is, though, still possible that admission of the

evidence was fundamentally unfair so as to prejudice Kater. Kater

makes this argument, and says that the Commonwealth cannot have it

both ways. That is, when Kater invoked the Double Jeopardy Clause

to block his fourth trial, the state courts ruled against the

claim, finding there was adequate evidence in the record, without

admission of the prior bad acts, to support the conviction in a

trial where the evidence was not introduced. He argues that this

finding that the prior 1969 conviction was not necessary to his
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conviction became the law of the case. As such, it was surplusage

to admit the prior bad acts, and prejudicial to him to do so. 

On extreme facts, it may be theoretically possible to

find that a state court's evaluative judgment -- that the

prejudicial effect does not substantially outweigh the probative

value -- was such an unreasonable application of clearly

established federal constitutional standards as to result in a

fundamentally unfair trial. In practice, such a case -- if one

exists -- will be very rare. The SJC's conclusion that the bad act

evidence of Kater's prior conviction showed identity was quite

reasonable, and while adverse to Kater, was not unfairly

prejudicial. The evidence powerfully went to identity. The SJC

recounted the following similarities between Kater's past crime and

the Arruda case: both victims were young girls, both were abducted

on a rural residential road and placed in a car, both were brought

to a dense wooded area, both were tied to a tree in a similar

manner, both were bound around the neck in such a way that

strangulation might result, and both were left in isolated areas of

the woods. Kater VII, 734 N.E.2d at 1176 & n.7. As the SJC found,

the two cases were "strikingly similar," with a "modus operandi

. . . so distinctive as to make the evidence highly probative."

Id. at 1176. 

We agree with the SJC, and see no basis for any

conclusion that this evidence of his prior conviction unfairly
 Kater also argues that the admission of the prior conviction 6

violated the Double Jeopardy Clause. Kater argues that he is being

punished twice for the 1968 crime against Bussiere: once because of

his conviction in 1969, and again by the admission of the 1969

conviction at his trial for Arruda's kidnapping and murder.

Kater's argument raises no question under the Double Jeopardy

Clause. In no sense is admission of prior bad act evidence

"punishment" within the meaning of the Double Jeopardy Clause. 

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prejudiced Kater, much less that the trial was fundamentally

unfair.6

2. Voir Dire on Prior Conviction

Kater's innovative voir dire argument rests on a mistaken

view of the purpose and limits of a defendant's federal

constitutional right to conduct voir dire for bias. Again, states

may make different choices as to this topic; our concern is Kater's

federal constitutional right.

Kater's argument is based on these propositions:

1. The Fourteenth Amendment requires that jurors be impartial.

Morgan v. Illinois, 504 U.S. 719, 729 (1992). 

2. The U.S. Supreme Court has not endorsed the distinction made by

the state court between requiring voir dire questioning on

extraneous issues -- if it appears that a substantial risk exists

that the extraneous issue might affect the outcome of the case --

and not requiring it on non-extraneous issues relevant to and in

the record of the case. He argues that if the U.S. Supreme Court

were to address the issue, it would conclude, as apparently have

the state courts of California, see People v. Chapman, 18 Cal.
Kater also relies on other state cases requiring voir dire 7

on a defendant's prior convictions, but all of those cases rely on

interpretations of state, not federal, law. See State v. Collin,

741 A.2d 1074 (Me. 1999); People v. Hosier, 116 N.Y.S. 911 (N.Y.

App. Div. 1903); Staggs v. State, 29 P.2d 135 (Okla. Crim. App.

1934); State v. Ziebert, 579 P.2d 275 (Or. Ct. App. 1978).

 "A state conviction and sentence become final for purposes 8

of [the Teague] analysis when the availability of direct appeal to

the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed

petition has been finally denied." Caspari v. Bohlen, 510 U.S.

383, 390 (1994). The SJC handed down its final opinion in August

2000, and no petition for certiorari was filed. 

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Rptr. 2d 738 (Cal. Ct. App. 1993) (relying on People v. Ranney, 1

P.2d 423 (Cal. 1931)), that there is a Sixth Amendment right to 7

question jurors on possible prejudice or bias due to defendant's

prior felony conviction. We note that this step of the argument is

based on the erroneous assumption rejected above, that de novo

review under Fortini eliminates Teague review. 

3. Kater argues, in any event, that the record here shows that

when the questions were asked about his prior bad acts, almost half

of the questioned jurors said they would have problems following

the court's instructions, and that this entitled Kater to insist

that questions be asked at voir dire about the effects of evidence

as to his prior conviction. 

We address Kater's argument on this issue with reference

to clearly established law at the time Kater's state court

conviction became final, as required by Teague, focusing on the 8

Supreme Court cases on which Kater builds his argument.
 The Court carefully distinguished between constitutional 9

requirements which states must meet and the exercise of its broader

supervisory authority over cases tried in federal courts. Mu'Min,

500 U.S. at 422, 424.

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The Supreme Court has explained that federal authority

over voir dire in cases tried in state courts is "limited to

enforcing the commands of the United States Constitution." Mu'Min

v. Virginia, 500 U.S. 415, 422 (1991). So far, the Supreme Court 9

has recognized a defendant's constitutional right to voir dire

questioning only about whether jurors might be prejudiced against

defendant because of his race. See Ham v. South Carolina, 409 U.S.

524, 526-27 (1973); Aldridge v. United States, 283 U.S. 308, 314-15

(1931). Even then, the inquiry in non-death-penalty cases need not

be made in every state court case in which the races of the victim

and the defendant are different. Ristaino v. Ross, 424 U.S. 589,

597-98 (1976); see generally 5 LaFave, et al., Criminal Procedure

§ 22.3(a), at 293 (2d ed. 1999) ("[T]he Court has as yet declined

to extend the [Ham] doctrine to matters other than racial

prejudice."). 

Death penalty cases present special concerns about what

voir dire may be constitutionally required, and there are special

voir dire rules in such cases. See Turner v. Murray, 476 U.S. 28,

36-37 (1986) (holding that Due Process Clause entitled deathpenalty-eligible defendant to voir dire questioning on racial bias

where defendant was accused of interracial crime); see also Morgan
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v. Illinois, 504 U.S. 719, 738-39 (1992) (state trial court, under

Due Process Clause, may not refuse to inquire into whether a

potential juror, regardless of facts in the case, would

automatically impose the death sentence); 5 LaFave, et al., supra,

§ 22.3(a), at 295.

To date, the Court has recognized no such

constitutionally compelled right to voir dire in other contexts,

including where the claim involved potential voir dire about

extensive and prejudicial pretrial publicity, resulting in further

questioning jurors about the content of materials they had seen

after they had declared themselves impartial. See Mu'Min, 500 U.S.

at 431-32.

There is no claim here of prejudicial bias of potential

jurors based on race or, indeed, any other suspect classification.

There is no claim the jurors prejudged the matter based on adverse

pretrial publicity. Kater was not sentenced to death, but to life

imprisonment, and the voir dire requested did not address

sentencing at all. All of the categories of cases for which the

Supreme Court has recognized a constitutional right to voir dire

have involved preexisting views, not based on the evidence in the

case, which prospective jurors may bring into the courtroom with

them that impair their ability to fairly consider the evidence. 

It is true that some state courts have concluded that, as

a matter of state policy, they will permit or even require voir
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dire on whether a juror who has heard evidence of a defendant's

prior bad acts can still follow the judge's instructions about the

limited purpose for such testimony. Massachusetts has chosen not

to follow that path, and requires voir dire questioning only where

there is a "substantial risk . . . that an extraneous issue" --

"one that goes beyond the record and raises a serious question of

possible prejudice" -- "might affect the outcome of the case."

Kater VII, 734 N.E.2d at 1174-75 (citing Mass. Gen. Laws ch. 234,

§ 28).

The question is whether, given the clearly established

federal law at the time Kater's conviction became final,

Massachusetts was compelled by the federal Constitution to require

such voir dire on the effect of evidence, yet to be admitted, of

defendant's prior bad acts. Massachusetts was not under any such

constitutional compulsion. Kater had no constitutional entitlement

to question potential jurors on the effect of the prior bad act

evidence. 

C. Testimony From Previously Hypnotized Witnesses

Kater starts from the firm foundation that the Sixth

Amendment Confrontation Clause guarantees that prosecution trial

testimony be subject to testing by the defendant via the

opportunity for cross-examination. Crawford v. Washington, 541

U.S. 36, 61 (2004) (stating that the Confrontation Clause "commands

. . . that reliability be assessed in a particular manner: by
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testing in the crucible of cross-examination"). Kater argues that

his Confrontation Clause rights were violated by permitting

testimony from witnesses who had been hypnotized. See Clay v.

Vose, 771 F.2d 1, 4-5 (1st Cir. 1985). He also argues that the

introduction of this testimony violated due process and rendered

his trial fundamentally unfair.

In particular, Kater argues that the hypnosis led the

witnesses to become "convinced of the absolute accuracy" of their

testimony, supported by pre-hypnotic documentation, that Kater's

car was similar in color, size, and markings to the car they had

seen on the day of the abduction, making them impermeable to crossexamination. We rejected a similar argument by a habeas petitioner

in Clay, a case in which the state court (unlike the state court

here) had not restricted witness testimony only to previously

documented facts. Id. at 3-5. 

The risks that may be posed by testimony of previously

hypnotized witnesses are simply not present here. At Kater's last

trial, the trial judge allowed previously hypnotized witnesses to

testify only as to facts that were documented before the hypnosis

procedures were performed. The SJC held that "such limitations on

the witnesses eliminated the risk that their testimony might be

affected by hypnosis." Kater VII, 734 N.E.2d at 1177. Admission

of this evidence cannot possibly be said to have deprived the

petitioner of a fundamentally fair trial. 
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D. Sufficiency of Evidence

The Due Process Clause requires the prosecution to prove

beyond a reasonable doubt every element of the offense. In re

Winship, 397 U.S. 358, 364 (1970). The SJC concluded, under the

federal Jackson standard, that the evidence was sufficient. Kater

VII, 734 N.E.2d at 1172-73; see Jackson, 443 U.S. at 319 ("[T]he

relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."). Although the AEDPA standard applies, even if

we were to review this sufficiency question de novo, we would

agree.

E. Other Claims

Kater argues the trial was fundamentally unfair under the

Due Process Clause because of the loss or destruction of evidence.

The SJC extensively analyzed these claims and rejected them.

Whether viewed de novo or through the AEDPA lens, we conclude the

claims individually and collectively do not raise a claim of

constitutional dimension.

The dismissal of the petition for habeas corpus is

affirmed.