Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 08-1425

AUSTIN SMITH,

Petitioner, Appellant,

v.

MICHAEL THOMPSON,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

 Torruella, Stahl, and Howard, Circuit Judges.

Kenneth G. Littman, by Appointment of the Court, for

appellant.

Argiro Kosmetatos, Assistant Attorney General, with whom

Martha Coakley, Attorney General, and James J. Arguin, Assistant

Attorney General were on brief for appellee.

May 11, 2009
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STAHL, Circuit Judge. In 1997, Austin Smith was

convicted in Massachusetts Superior Court of six counts of sexual

assault on a minor and was sentenced to eighteen to twenty years in

prison. After exhausting his state court appeals, Smith brought

a habeas petition in federal court, under 28 U.S.C. § 2254,

alleging ineffective assistance of counsel at his state court

trial. The district court below denied the habeas petition,

adopting in full a magistrate judge's report and recommendation.

After careful review of the record and finding no error, we affirm.

The magistrate judge's detailed report includes a

thorough recitation of the facts of the case and we therefore do

not recount them in detail here. Essentially, Smith was convicted

of repeatedly sexually assaulting his live-in girlfriend's

daughter, Anna Garcia (a pseudonym), when she was five and six

years old. The assaults occurred between December 1993 and May

1995. Initially, Anna did not tell anyone of the sexual abuse. In

June 1995, Anna's aunt made a report of child abuse and neglect to

the Framingham, Massachusetts police department, alleging that Anna

and her younger brother (who was the biological son of Anna's

mother and Smith) were being physically abused by Smith. Following

up on the report, a Massachusetts Department of Social Services

investigator, James Nally, interviewed Anna and she revealed to

Nally for the first time that Smith had also sexually abused her.

After the interview and while Nally was still present, Anna then
At the time of trial, Anna was eight years old. Tragically, 1

she passed away two years after the trial, due to complications

from strep throat.

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told her mother of the sexual abuse. After the Nally interview was

over, Anna's mother took Anna to see a pediatrician, Dr. Nancy

Rosselot, and Anna described the sexual abuse to her as well. At

some later point, Anna also told her aunt and grandmother what

Smith had done to her.

At trial, the prosecution presented three key witnesses,

Anna, Nally, and Dr. Rosselot. Under Massachusetts law at the 1

time, Nally and Dr. Rosselot qualified as "fresh complaint

witnesses," meaning that they could testify to "an out-of-court

complaint seasonably made by the victim after [the] sexual assault"

and such testimony would be "admissible as part of the

prosecution's case-in-chief." Commonwealth v. Licata, 412 Mass.

654, 657 (1992). In addition, under the law as it stood at that

time, "[a] fresh complaint witness [could] testify to the details

of acts discussed during a fresh complaint; the acts about which

the witness testifie[d], however, must have been testified to by

the complainant." Commonwealth v. Flebotte, 417 Mass. 348, 351

(1994). The "fresh complaint doctrine" also put a significant

limitation on how such evidence could be used by the jury:

"Evidence of the complaint is admissible only to corroborate the

complainant's testimony; it cannot be presented to establish the

truth of the complaint itself." Licata, 412 Mass. at 657.
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Smith did not present any witnesses at trial. His theory

of the case was that Anna had been coached by her mother, aunt, and

grandmother to fabricate the sexual abuse allegations because they

had an on-going feud with Smith. His trial counsel sought to

highlight inconsistencies within Anna's testimony, inconsistencies

between her testimony and what she previously told Nally and Dr.

Rosselot, and the lack of physical evidence supporting Anna's

claim.

Smith's ineffective assistance of counsel claim focuses

on four aspects of his counsel's conduct during the trial. First,

Smith argues that his trial counsel mishandled Anna's crossexamination by asking her detailed questions about what she told

Nally and Dr. Rosselot about Smith's abuse. This line of

questioning, presumably intended to uncover inconsistencies,

elicited graphic testimony from Anna about the details of Smith's

abuse. Second, Smith argues that the cross-examination of Anna was

also constitutionally deficient because counsel asked Anna about

what she told her mother, aunt, and grandmother about Smith's

abuse. Smith says this was prejudicial error because Anna's

statements to her relatives about the abuse had not been presented

by the government in its case-in-chief, and therefore this line of

questioning introduced new and damning fresh complaint testimony

that otherwise would not have been before the jury. Third, Smith

argues that counsel's cross-examination of Nally and Dr. Rosselot
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was deficient because he repeatedly asked them to describe what

Anna had told them about Smith's actions. This elicited further

repetitive statements describing in graphic detail Smith's abuse.

Fourth, Smith condemns his counsel's failure to request a limiting

instruction indicating that Anna's testimony about her out-of-court

statements to others could not be used as substantive evidence of

the truth of her allegations.

Smith first raised his ineffective assistance claim

before the Massachusetts Appeals Court, which affirmed his

conviction and denied his motion for a new trial. Thereafter, the

Massachusetts Supreme Judicial Court denied Smith's application for

leave to obtain further appellate review, leaving the Appeals Court

decision as the final state adjudication of the claim. The Appeals

Court concluded that Smith's trial counsel's performance "fell

measurably below that of the ordinary fallible lawyer," because

counsel "repeatedly elicit[ed] corroborative testimony from the

victim and other witnesses." Commonwealth v. Smith, No. 99-P-766,

2001 WL 695108, 51 Mass. App. Ct. 1116 (June 20, 2001) (unpublished

table decision). However, the court concluded that, on the record

as a whole, this deficient representation did not "'cast doubt on

the validity of the jury's verdict.'" Id. (quoting Commonwealth v.

Peters, 429 Mass. 22, 33 (1999)).

Smith subsequently filed a habeas petition in federal

court under 28 U.S.C. § 2254. Agreeing with a magistrate judge's
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report and recommendation, the district court denied the writ,

concluding that the Massachusetts Appeals Court did not

unreasonably apply the law governing claims of ineffective

assistance of counsel. The magistrate report, which was adopted in

full by the district court, explained its reasoning as follows:

Having read the entire trial record, it is just

as probable that the jury would have found Anna

credible based solely on the testimony which was

properly admitted. Put another way, there is not

a reasonable probability that the erroneously

admitted evidence would have altered the result.

The reason for this conclusion is that although

erroneously admitted, the evidence was

essentially cumulative. Anna testified that she

gave substantially the same recitation of facts

to all of the people to whom she reported the

abuse. The Court might feel differently if

within the evidence which was erroneously

admitted, there was some important evidence

necessary for conviction or which was

particularly weighty in favor of conviction which

was not otherwise before the jury in the form of

properly admitted evidence. But there is no such

evidence.

In other words, the court below denied the writ on prejudice

grounds, concluding that the state court did not unreasonably apply

the law regarding ineffective assistance given that there was no

reasonable probability that without the deficient representation

the jury would have found in Smith's favor.

On a petition for a writ of habeas corpus, we review the

district court's legal conclusions de novo. Teti v. Bender, 507

F.3d 50, 56 (1st Cir. 2007). We will only grant the writ as to a
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claim adjudicated on the merits in state court if the adjudication

of the claim "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). Smith argues that the state

court unreasonably applied federal law regarding ineffective

assistance of counsel in finding that his counsel's errors were not

prejudicial. We have previously held that a finding of

"unreasonable application" requires more than "the mere fact that

there was some error or that the state decision was incorrect."

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002). Indeed,

"'some increment of incorrectness beyond error is required.'" Id.

(quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

A claim of ineffective assistance of counsel requires a

showing that, "counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be

relied on as having produced a just result." Strickland v.

Washington, 466 U.S. 668, 686 (1984). A successful claim under

Strickland requires two showings. First, a defendant must show

that counsel's performance was deficient, meaning that "counsel

made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Id. at

687. Second, a defendant must show that the deficient performance

prejudiced the defense, which "requires showing that counsel's
In considering Smith's claim, the Massachusetts Appeals Court 2

applied the Massachusetts standard for ineffective assistance of

counsel laid out in Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). We have previously held that "'for habeas purposes,

Saferian is a functional equivalent of Strickland.'" Malone v.

Clark, 536 F.3d 54, 63 (1st Cir. 2008) (quoting Ouber v. Guarino,

293 F.3d 19, 32 (1st Cir. 2002)).

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errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Id.

The Massachusetts Appeals Court correctly applied what

has been held to be the functional equivalent of the two-part

Strickland test to evaluate Smith's ineffective assistance claim.2

Because that court found that counsel's performance was indeed

constitutionally deficient, we need only examine the court's

evaluation of the second prong of Strickland, the prejudice

question. But, because this case reaches us on habeas review, we

do not evaluate whether the errors actually prejudiced Smith, but

only whether the Appeals Court reached an unreasonable conclusion

on the prejudice question. We hold that it did not, for

substantially the reasons highlighted in the magistrate's report.

First, during the cross-examination of Anna by Smith's

trial counsel, she was asked about her out-of-court statements to

Nally and Dr. Rosselot, as well as to her mother, aunt, and

grandmother. While this line of questioning certainly elicited

damning and graphic testimony regarding Smith's actions, it was

essentially cumulative of Anna's prior testimony. Anna had already

properly testified about her statements to Nally and Dr. Rosselot,
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and the statements Anna recounted making to her relatives were not

substantially different from those she reported making to Nally and

Dr. Rosselot. It is true that trial counsel's questioning

permitted Anna to recount the graphic content of these statements

several times, and such repetition could, in some cases, be so

significant as to undermine a defendant's right to a fair trial.

See Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) ("Strickland

clearly allows the court to consider the cumulative effect of

counsel's errors in determining whether a defendant was

prejudiced.") (quoting Kubat v. Thieret, 867 F.2d 351, 370 (7th

Cir. 1989)). But here, the merely cumulative nature of the

erroneously admitted evidence combined with the strength of the

prosecution's properly admitted evidence -- the compelling

testimony from the young victim and two fresh complaint witnesses

-- leads us to conclude that the Appeals Court's determination of

'no prejudice' was not an unreasonable application of Strickland.

Second, as to counsel's cross-examination of Nally and

Dr. Rosselot regarding what Anna told them about Smith's actions,

we similarly conclude that such testimony was cumulative of the

witnesses' primary testimony about their interviews with Anna.

Again, the Appeals Court's 'no prejudice' determination was not

unreasonable.

Finally, as to counsel's failure to request a limiting

instruction regarding the fresh complaint testimony, the Appeals
The court gave these limiting instructions prior to the 3

testimony of Nally and Dr. Rosselot and during the court's final

instructions to the jury.

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Court's determination of 'no prejudice' was not unreasonable given

that the trial court instructed the jury on three occasions about 3

the nature of fresh complaint evidence and its limited

applicability.

Smith argues that the district court erroneously denied

the writ because it failed to recognize the "serious weaknesses" in

the prosecution's case. In other words, he argues that without the

improperly admitted evidence, the jury would likely have returned

a verdict of acquittal, meaning his counsel's errors did indeed

cause him prejudice. However, the supposed "weaknesses" that Smith

points out -- the lack of physical evidence of sexual abuse, and

some very minor inconsistencies in Anna's recounting of Smith's

abuse -- are not significant when weighed against the detailed and

generally consistent testimony of Anna, Nally, and Dr. Rosselot.

We agree with the court below that "there is no reasonable

probability the result would have been different" had the jury not

heard the improperly admitted evidence.

For the foregoing reasons we affirm the district court's

denial of the writ of habeas corpus.