United States Court of Appeals

For the First Circuit

No. 05-2419

MARK OBERSHAW,

Petitioner, Appellant,

v.

KATHLEEN LANMAN; PETER ALLEN,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Torruella, Lynch, and Howard,

Circuit Judges.

Donald A. Harwood for appellant.

Daniel I. Smulow, Assistant Attorney General, Criminal Bureau,

with whom Thomas F. Reilly, Attorney General, was on brief, for

appellees.

June 30, 2006
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LYNCH, Circuit Judge. Mark Obershaw ("Obershaw") was

convicted in Massachusetts state court of the first-degree murder

of his brother by extreme atrocity or cruelty. His conviction was

affirmed by the Massachusetts Supreme Judicial Court (SJC), see

Commonwealth v. Obershaw, 762 N.E.2d 276 (Mass. 2002), and his

subsequent petition for a writ of habeas corpus in the federal

district court was denied. He appeals from that denial, arguing

that his conviction is unconstitutional because the jury was not

instructed that it must be unanimous as to which particular factors

supporting the "extreme atrocity or cruelty" determination were

present. He also argues that the police obtained incriminating

statements from him in violation of his rights to remain silent and

to counsel, and that the prosecution made various remarks during

closing argument that were so improper as to amount to a violation

of due process. We reject all these arguments and affirm.

I.

We summarize the facts as found by the SJC, using the

record to supplement some points. See Lynch v. Ficco, 438 F.3d 35,

39 (1st Cir. 2006).

Obershaw lived in a townhouse in Rockland belonging to

his brother, Brian. In July of 1997, frustrated with Obershaw's

gambling problem, Brian packed up Obershaw's possessions and, when

Obershaw returned from a trip, asked Obershaw to leave. Obershaw,

762 N.E.2d at 281. Obershaw, in a rage, killed his brother Brian
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by hitting him on the head with "the Club," a steel device for

locking the steering wheel of a car. Obershaw, after attempting to

clean up the scene of his crime at the house, put Brian's body and

some bloody items in the trunk of his car. He buried Brian's body

in a landfill in Bedford, discarding his own bloody clothes and the

Club along the way. Id.

The police were called to the house on the evening of

July 25, found certain areas covered in blood, and noticed that a

portion of carpeting, the shower curtain, and other items were

missing. Id. A neighbor had seen a car like Obershaw's at the

house that morning, and the police broadcast a description of the

car. Id. at 281-82.

At roughly 3:00 a.m. on July 26, a Nahant police officer

saw Obershaw and his two dogs sleeping in his car by the side of

the road. Id. The officer told Obershaw that he could not sleep

there and suggested that he move his car to a nearby parking lot

located behind the police station and other municipal buildings.

Obershaw drove to that lot and went back to sleep. Id. The Nahant

police checked Obershaw's license plate and learned that he was

wanted for questioning in a homicide case (Brian's). They

contacted the state police and blocked the parking lot's exits.

When the state police arrived, Obershaw was asleep. Id.

The police woke Obershaw, asked him to step out of the

car, advised him of his rights under Miranda v. Arizona, 384 U.S.
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436 (1966), and told him they were looking for Brian. Obershaw,

762 N.E.2d at 282. Obershaw asked what the problem was, said that

he did not know where Brian was, and told the police repeatedly

that he loved Brian. Id. He "agreed to accompany the police to

the station, and offered to 'voluntarily stay and cooperate' in the

search." Id.

The police told Obershaw he was free to leave, and they

allowed him to spend a great deal of time alone with his dogs. Id.

He voluntarily cooperated with the police, consenting to a search

of his car, trunk, and suitcase. He also agreed to have his hands

swabbed for blood and fingerprints. Id. After obtaining a written

Miranda waiver, the police asked Obershaw where he had been on the

25th. Obershaw said he had returned to Brian's house from a trip

to Atlantic City, entering at 6:00 a.m. and leaving shortly

thereafter without seeing or speaking to Brian. Id. Obershaw

"volunteered to submit to a polygraph test and cooperate fully."

Id.

When this conversation ended, Obershaw stayed at the

station, although he was told again that he was free to leave. Id.

For the next few hours, while the police inspected his car with his

consent, he played with his dogs near the station, "not accompanied

by a police escort or restrained in any way." Id. Some stains in

the trunk tested positive for blood. The police stopped their

consent search and decided to seize the car and obtain a warrant to
Starting then, Obershaw was not free to leave, and the 1

police considered him to be in custody, although they did not

handcuff him. Id.

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search it; they so informed Obershaw. Obershaw, after spending

some time with his dogs, "indicated that he wanted to talk." Id.

He started crying and told the police, "I love my brother. It was

my fault. I'm sorry. I hit him." Id. 1

Obershaw asked for some time. After ten or fifteen

minutes, the police asked him whether he would take them to Brian's

body. Obershaw asked, "Can I talk to a lawyer first?" Id. at 284.

The police told him that he could use the telephone to call a

lawyer, but Obershaw declined, saying that he did not want to call

a lawyer, and that he wanted instead to spend some time outside

with his dogs. Id. The police allowed this, keeping Obershaw

under guard. Id. at 282. After a short while, Obershaw

"approached [an officer] outside the station and initiated a

conversation." Id. at 284. That officer again told Obershaw he

could use the telephone if he wanted a lawyer. Id. Obershaw again

declined and decided to spend another half hour with his dogs.

Obershaw then told one of the officers that "this wasn't

premeditated" and that he "didn't plan it." The police asked where

Brian's body was; Obershaw agreed to lead police to the body. Id.

at 283. He also told the police that Brian became upset with him

for being in the house. Brian started to push him out and hit him

lightly in the head, hurting him only emotionally; Obershaw said he
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then took up the Club and began hitting Brian with it, ultimately

chasing Brian upstairs, where he continued to hit him. Id.

Obershaw accompanied the police to the landfill and

directed them to Brian's body. Id. After being advised again of

his Miranda rights, he went on to tell police that he had thrown

the Club along a particular road and had put some other items

behind a certain school, and he provided further details about the

homicide itself and what he did in the immediate aftermath. Id.

Obershaw took the stand at trial. He testified that

Brian "was the aggressor the whole time" -- that Brian was the one

who picked up the Club and chased him (Obershaw) upstairs, and that

after a struggle, he hit Brian just once with the Club before

hitting his own head against the wall and blacking out. Id. at

286. This testimony was contradicted by the story Obershaw had

earlier told to the police, which was admitted into evidence

through police testimony after Obershaw's motion to suppress was

denied. Id. at 280. There was also evidence, including more than

eighty photographs, that Brian received "at least ten blows to the

head," "did not die immediately from the first blow," and suffered

defensive injuries to his hands. Id. at 286. The jury convicted

Obershaw of murder committed with extreme atrocity or cruelty --

that is, first-degree murder. Id. at 280. The SJC affirmed. Id.

at 290.
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Obershaw then filed a federal petition for habeas corpus.

The district court denied the petition, but granted an amended

certificate of appealability as to the following issues:

1. Whether petitioner's rights under the

4th and 5th Amendment[s] were violated by the

admission into evidence of his statements.

2. Whether petitioner's rights under the

5th Amendment were violated . . . by the

prosecution's closing argument. . . .

[3]. Whether petitioner's 5th and 6th

Amendment rights were violated by the refusal

by the trial court to instruct the jury that

it had to be unanimous in deciding the factors

concerning extreme atrocity.

Of these, the third is the most significant issue.

II.

We review de novo the district court's denial of habeas

relief. Lynch, 438 F.3d at 44.

The Antiterrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2254, provides for deferential review as to

any federal claim that was "adjudicated on the merits in State

court proceedings": habeas relief is unavailable on such a claim

unless the state court's 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," or "was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding." Id. § 2254(d).
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However, we review de novo any federal claim that was

"raised before the state court but was left unresolved." Lynch,

438 F.3d at 44 (internal quotation marks omitted) (quoting Horton

v. Allen, 370 F.3d 75, 80 (1st Cir. 2004)). Moreover, "a

determination of a factual issue made by a State court shall be

presumed to be correct," and the petitioner has "the burden of

rebutting the presumption of correctness by clear and convincing

evidence." 28 U.S.C. § 2254(e)(1). Finally, we cannot reach the

merits of the federal claim at all if it was procedurally defaulted

at trial, unless the default is excused. Lynch, 438 F.3d at 44.

A. Jury Instructions

Obershaw's primary challenge is to the jury instructions

as to unanimity on the first-degree murder charge. In

Massachusetts, "[m]urder committed with deliberately premeditated

malice aforethought, or with extreme atrocity or cruelty, or in the

commission or attempted commission of a crime punishable with death

or imprisonment for life, is murder in the first degree." Mass.

Gen. Laws ch. 265, § 1. Further, "[m]urder which does not appear

to be in the first degree is murder in the second degree," and

"[t]he degree of murder shall be found by the jury." Id.

In Commonwealth v. Cunneen, 449 N.E.2d 658 (Mass. 1983),

the SJC listed seven "factors which a jury can consider in deciding

whether a murder was committed with extreme atrocity or cruelty."

Id. at 665. These factors, the SJC said, "include indifference to
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or taking pleasure in the victim's suffering, consciousness and

degree of suffering of the victim, extent of physical injuries,

number of blows, manner and force with which delivered, instrument

employed, and disproportion between the means needed to cause death

and those employed." Id.

Over Obershaw's objection, the trial court refused to

instruct the jury that it must be unanimous as to which specific

Cunneen factors justified a verdict of first-degree murder by

extreme atrocity or cruelty. Obershaw, 762 N.E.2d at 289.

Obershaw's arguments under federal law, described below, were

preserved and adjudicated on the merits. See id. at 290 & n.5.

Thus, the deferential AEDPA standard of review applies.

Obershaw's first argument is that a jury determination

that one or more the Cunneen factors is present results "in an

enhanced verdict of first-degree murder, and thus, more harsh

sentencing consequences," in violation of the rule articulated in

Apprendi v. New Jersey, 530 U.S. 466 (2000), that "[o]ther than the

fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt," id. at 490. He

argues that the sentenced is "enhanced" in the sense that those

convicted of first-degree murder receive a mandatory life sentence

without the possibility of parole, whereas those convicted of
The Massachusetts murder statute still provides that the 2

death penalty is available for first-degree murder committed with

extreme atrocity or cruelty, see Mass. Gen. Laws ch. 265, § 2, but

the SJC has ruled that the death penalty violates a provision of

the state constitution, see Dist. Attorney for Suffolk Dist. v.

Watson, 411 N.E.2d 1274, 1275 (Mass. 1980).

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second-degree murder receive a mandatory life sentence which

includes the possibility of parole after fifteen years.

Obershaw is correct that there is a parole-eligibility

differential. See Mass. Gen. Laws ch. 127, § 133A; id. ch. 265,

§ 2; Commonwealth v. Glass, 519 N.E.2d 1311, 1316 (Mass. 1988). He

is mistaken, however, to view this case as presenting an Apprendi

problem. When the jury finds that one or more of the Cunneen

factors was present and therefore that the murder was committed

with extreme atrocity or cruelty (and therefore that the murder was

in the first degree), there is no increase in the prescribed

statutory maximum penalty. The maximum penalty for both first- and

second-degree murder is life in prison, and indeed, a life sentence

is mandatory for both degrees of murder. See Mass. Gen. Laws ch. 2

265, § 2 (providing for mandatory penalty of "imprisonment in the

state prison for life" for both first- and second-degree murder).

Thus, no Apprendi problem is presented.

In any event, even if the Supreme Court might arguably

extend the Apprendi holding to this sort of situation, where actual

time in prison is potentially increased within a statutory maximum

through the mandatory denial of parole, it has not done so yet.
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Cf. United States v. Booker, 543 U.S. 220, 244 (2005) (describing

the "holding in Apprendi" as requiring that "[a]ny fact . . . which

is necessary to support a sentence exceeding the maximum authorized

by the facts established by a plea of guilty or a jury verdict

. . . be admitted by the defendant or proved to a jury beyond a

reasonable doubt" (emphasis added)). Thus, the SJC's decision that

there was no Apprendi problem was not contrary to, and did not

involve an unreasonable application of, clearly established federal

law.

Obershaw's next argument is that, Apprendi aside, jury

unanimity, as a matter of federal due process, is required as to

identifying which particular Cunneen factors are present, because

those factors are "elements" of the crime of first-degree murder by

extreme atrocity or cruelty. Obershaw's argument rests on his

constitutional right to "a jury determination that [he] is guilty

of every element of the crime with which he is charged, beyond a

reasonable doubt." Apprendi, 530 U.S. at 477 (internal quotation

marks omitted) (alteration in original) (quoting United States v.

Gaudin, 515 U.S. 506, 510 (1995)). Obershaw invokes Richardson v.

United States, 526 U.S. 813 (1999), in which the Supreme Court

stated that it "has indicated that the Constitution itself limits

a State's power to define crimes in ways that would permit juries

to convict while disagreeing about means, at least where that
 In Richardson, the Court noted that it "has not held that 3

the Constitution imposes a jury unanimity requirement" for state

criminal cases. 526 U.S. at 821; see also Schad v. Arizona, 501

U.S. 624, 630-31 (1991) (plurality opinion) (declining to hold

"that the Sixth, Eighth, and Fourteenth Amendments require a

unanimous jury in state capital cases"); Johnson v. Louisiana, 406

U.S. 356 (1972) (unanimous jury not required in state noncapital

cases). This does not necessarily mean Obershaw has no

constitutional claim, for the question of how much leeway a state

has in defining crimes still remains. Schad, 501 U.S. at 630-31.

This case deals only with that issue -- the scope of facts on which

the requisite number of jurors had to agree, not the particular

number of jurors who had to be in agreement -- and our references

to "unanimity" should be read accordingly. (Here, the Commonwealth

did require all twelve jurors to agree on the verdict.)

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definition risks serious unfairness and lacks support in history or

tradition." Id. at 820. 3

Obershaw's argument that the Cunneen factors are

"elements" relies, in part, on his view that because the Cunneen

factors consist of "broad and non-specific categories of proscribed

conduct sounding in the nature of elements," as opposed to

particular means of accomplishing a single element, they meet the

definitional requirement for "elements," as a matter of federal

law, under a test he says was established in Richardson. Obershaw

also stresses that the SJC has made it a mandatory prerequisite for

a first-degree murder conviction on the theory of extreme atrocity

or cruelty that the jury find at least one of the Cunneen factors

to be present. As Obershaw notes, the SJC has held that "the judge

should delineate the [Cunneen] factors for the jurors'

consideration and inform the jurors that they must base their
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verdict of guilty of murder by extreme atrocity or cruelty on

evidence of at least one of the delineated considerations."

Commonwealth v. Semedo, 665 N.E.2d 638, 646 (Mass. 1996); see also

Commonwealth v. Dahl, 724 N.E.2d 300, 309 (Mass. 2000) ("[A] jury

must find the presence of at least one of the Cunneen factors

before [it] can find that a homicide has been committed with

extreme atrocity or cruelty[,] and . . . language suggesting other

factors as determined by the jury [is] improper."); Commonwealth v.

Hunter, 695 N.E.2d 653, 658 (Mass. 1998) (judge did not err in

telling jurors that they must consider all of the Cunneen factors

and in refusing to withdraw two factors from their consideration).

The SJC has, however, made clear that as a matter of

state law, the Cunneen factors are only evidentiary considerations,

not elements. It so held in rejecting the claim that the judge

must instruct the jurors that they are "required to agree

unanimously on which of the Cunneen factors provided the basis for

their verdict." Hunter, 695 N.E.2d at 658. Explaining why jury

unanimity as to specific Cunneen factors is not required, the SJC

clarified that the factors are simply "'evidentiary considerations'

that guide the jury in determining whether a murder was committed

with extreme atrocity or cruelty." Id. That reasoning was at the

heart of the SJC's analysis in this case. Obershaw, 762 N.E.2d at

290 & n.5. Given the SJC's interpretation of state law, we are not
 The SJC's interpretation of state law precludes this court 4

from treating the question of interpretation as an open one, and

thus precludes application of the rule of lenity or of

constitutional avoidance, as urged by Obershaw.

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free to reinterpret the status of the Cunneen factors on our own.4

Cf. Schad v. Arizona, 501 U.S. 624, 636-37 (1991) (plurality

opinion) (noting that "we simply are not at liberty to ignore [the

state courts'] determination and conclude that the alternatives

are, in fact, independent elements under state law," and that the

only issue was whether the state's choice was constitutional).

Obershaw argues that the state court's labeling of the

Cunneen factors as mere evidentiary considerations and not as

elements is not conclusive. He argues essentially that as a matter

of federal law, regardless of the state law label, if it walks like

a duck and quacks like a duck, it is a duck. He cites Ring v.

Arizona, 536 U.S. 584 (2002), and in particular, its language that

"[i]f a State makes an increase in a defendant's authorized

punishment contingent on the finding of a fact, that fact -- no

matter how the State labels it -- must be found by a jury beyond a

reasonable doubt," id. at 602. 

We agree that state law labels for what is an element and

what is not are not always determinative for purposes of the

constitutional inquiry. See id. at 604-05 (noting that Apprendi,

in the context of "elevation of the maximum punishment, . . .

instructs . . . that the characterization of a fact or circumstance
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as an 'element' or a 'sentencing factor' is not determinative of

the question 'who decides,' judge or jury"). And one can imagine

a situation in which, under Ring, a state's definition of something

as not an element of a crime, but merely an evidentiary

consideration, would be unconstitutional if it infringed on the

right to a jury finding of a certain fact. But this is not such a

case. Further, the SJC was not unreasonable in thinking this was

not such a case.

We have several reasons for our conclusion. First, the

maximum sentence authorized under the murder statute -- with or

without a jury finding of first-degree murder by extreme atrocity

or cruelty -- was the same (life imprisonment), and therefore Ring

is inapposite. Further, in Schad, the Supreme Court rejected the

argument that the Constitution requires the jury to be instructed

that it must be unanimous as to the theory of first-degree murder

(premeditation or felony murder) before it may render a verdict of

first-degree murder. See 501 U.S. at 627. This suggests that

Massachusetts, although it may choose as a matter of state law to

require unanimity as to which theory of first-degree murder was

proven, see Commonwealth v. Berry, 648 N.E.2d 732, 742 (Mass.

1995), has significant leeway under the Constitution to choose not

to require unanimity as to specific sub-determinations supporting

the ultimate conclusion on a particular theory. Cf. Kansas v.

Marsh, No. 04–1170, slip op. at 10, -- U.S. --, 2006 U.S. LEXIS
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5163, *20 (U.S. June 26, 2006) ("So long as a state system

satisfies [certain] requirements, our precedents establish that a

State enjoys a range of discretion in imposing the death penalty,

including the manner in which aggravating and mitigating

circumstances are to be weighed.").

Obershaw misreads Richardson. Richardson does not set up

a due process standard for what is an element and what is not.

Obershaw is simply wrong to say that anything which is a "broad and

non-specific categor[y] of proscribed conduct sounding in the

nature of [an] element" is an element. Richardson involved only

interpretation of a federal statute, it did not use the language

Obershaw suggests as a test, and to the extent it relied on such a

concept, it was only in attempting to ascertain congressional

intent as to what was an element. Richardson did not evaluate the

constitutionality of a state statute as interpreted by a state

court as to what was an element. Rather, Richardson works against

Obershaw's argument. It noted that the jury "need not always

decide unanimously which of several possible sets of underlying

brute facts make up a particular element, say, which of several

possible means the defendant used to commit an element of the

crime." 526 U.S. at 817. Obershaw's case fits into this latter

category.

This court has recently observed that "the law is less

clear than it might be as to when juror unanimity is required in
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the face of alternative paths to a verdict," and that "[w]ithin a

single count there may be alternative theories, alternative factual

scenarios, and alternative lines of evidentiary inference, making

generalizations about unanimity hazardous." United States v.

Pagán-Santini, -- F.3d --, No. 03-2574, 2006 U.S. App. LEXIS 14627,

at *19-20 (1st Cir. June 14, 2006); see also id. at *16-20 (holding

that defendant charged with one count of perjury based on three

separate statements had not shown plain error in court's failure to

instruct jurors that they must unanimously agree on which specific

statements were perjurious). We have also noted that "[w]hether a

particular fact is a means or an element is a 'value choice[] more

appropriately made in the first instance by a legislature than by

a court.'" United States v. Verrecchia, 196 F.3d 294, 299 (1st

Cir. 1999) (quoting Schad, 501 U.S. at 637 (plurality opinion));

see also id. at 301 (holding that "Congress did not intend the

possession of a particular firearm to be an element of [the crime

of possession of 'any firearm' by a felon]," so that district court

did not err in "fail[ing] to give an instruction requiring jury

unanimity on any particular firearm").

In sum, the SJC has determined that the Cunneen factors

are simply evidentiary considerations on the ultimate question of

extreme atrocity or cruelty, not elements, and we cannot say that

the choice not to require jury unanimity as to specific factors is
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contrary to, or involves an unreasonable application of, clearly

established federal law.

B. Statements to the Police

Obershaw moved to suppress his statements to the police,

partly on the ground he raises here: that he requested a lawyer,

and that instead of honoring that request, the police elicited

statements from him without a valid waiver of his rights.

Obershaw, 762 N.E.2d at 280. This claim was presented to the state

courts in federal constitutional terms, and adjudicated in such

terms. See id. at 281, 283-84. The deferential AEDPA standard of

review applies. We first describe the federal law.

Once a suspect invokes his right to have counsel present

during custodial interrogation, the fact that he responds to later

interrogation by the police does not, in itself, establish that he

validly waived that right. Edwards v. Arizona, 451 U.S. 477,

484-85 (1981). In fact, once a suspect "expresse[s] his desire to

deal with the police only through counsel, [he] is not subject to

further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police." Id.

In Davis v. United States, 512 U.S. 452 (1994), the

Supreme Court held that "after a knowing and voluntary waiver of

the Miranda rights, law enforcement officers may continue

questioning until and unless the suspect clearly requests an
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attorney." Id. at 461. "[T]he suspect must unambiguously request

counsel," and "if [he] makes a reference to an attorney that is

ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that [he] might be

invoking the right to counsel," police questioning need not cease.

Id. at 459. The test is an objective one: whether the suspect has

"articulate[d] his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney." Id.

Obershaw does not take issue with his initial statements

to the police. He was advised of his Miranda rights at the outset,

and he willingly conversed and cooperated with the police, even

signing a written Miranda waiver. Eventually, though, the police

discovered blood, and Obershaw made a brief, tearful confession.

It was shortly after that statement, when the police asked Obershaw

whether he would show them where Brian's body was, that Obershaw

asked, "Can I talk to a lawyer first?" Obershaw's argument is that

this was a clear, unambiguous request for counsel, and that the

statements he gave to the police after that request were improperly

obtained and should have been suppressed.

The state trial court determined that Obershaw "never

adequately and affirmatively invoked his right to counsel."

Obershaw, 762 N.E.2d at 283 (internal quotation marks omitted).

The SJC, citing Davis, inter alia, agreed. Id. at 283-84. The SJC
 Respondents argue that whether Obershaw adequately requested 5

an attorney is a factual determination which, under 28 U.S.C.

§ 2254(e)(1), must be presumed correct, and which Obershaw can only

rebut by clear and convincing evidence. Respondents point to Sanna

v. DiPaolo, 265 F.3d 1, 10 (1st Cir. 2001), but the challenge there

was only to the state courts' credibility-based determination of a

historical fact. The question here is not what the basic facts

are, but what their legal import is.

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stressed that the police responded to Obershaw's question by

telling him he could use the telephone to call a lawyer, that he

declined, that it was Obershaw who later initiated a conversation

with the police, that he was again invited to use the telephone to

call a lawyer, and that he again declined, after which he spent

half an hour with his dogs and then started speaking to the police

again. Id. at 284. The SJC reasoned that in this context,

Obershaw had not clearly and affirmatively requested an attorney.

Id.

Under AEDPA, this court is limited to determining whether

the SJC reached a decision contrary to, or involving an

unreasonable application of, clearly established federal law, or

one based on an unreasonable determination of the facts in light of

the evidence. The SJC's decision falls into neither category. 5

Obershaw inquired whether he could talk to a lawyer,

rather than expressly asserting that he in fact wanted to do so.

He has not directed us to any precedent, Supreme Court or

otherwise, holding that language like his meets the Davis standard

of unambiguously requesting counsel by expressing, with sufficient
Obershaw argued to the SJC that the prosecutor's summation 6

"violated . . . federal due process of law."

 Obershaw raised some objections during the prosecution's 7

summation, and some immediately after. With one exception noted in

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clarity, a desire to have counsel present. Moreover, even if

Obershaw did initially invoke his right to counsel by asking

whether he had such a right, he subsequently became subject to

further police questioning when, despite twice being invited to

call a lawyer, he chose to initiate further conversation with the

police. See Edwards, 451 U.S. at 484-85.

C. Prosecution's Summation

Obershaw's final claim is that "the prosecutor's

summation was grossly improper, thereby rendering the resulting

conviction a denial of due process." He relies on Darden v. 6

Wainwright, 477 U.S. 168 (1986). There, the Supreme Court held

that certain comments made by the prosecution during closing

argument "undoubtedly were improper." Id. at 180. Even so, the

Court held, "it is not enough that the prosecutors' remarks were

undesirable or even universally condemned. The relevant question

is whether the prosecutors' comments 'so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.'" Id. at 181 (some internal quotation marks and citations

omitted) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).

We begin with those remarks to which Obershaw objected at

trial. The SJC reviewed these objected-to comments "to determine 7
the text, the SJC treated Obershaw as having preserved each issue

for review. Obershaw, 762 N.E.2d at 287.

The SJC cited Chapman v. California, 386 U.S. 18 (1967), a 8

case involving improper prosecutorial comments which held that

"before a federal constitutional error can be held harmless, the

court must be able to declare a belief that it was harmless beyond

a reasonable doubt," id. at 24. The SJC also cited Commonwealth v.

Dougan, 386 N.E.2d 1 (Mass. 1979), which stated that "[t]he task of

this court is to assess on exceptions by the defendants whether the

argument as a whole is prejudicial in light of all the

circumstances, including the nature of the evidence, the

persistence or flagrancy of the remarks, and the instructions of

the judge," id. at 6. The SJC also relied on other state cases.

-22-

whether there were improprieties, and if so, whether they were

harmless." Obershaw, 762 N.E.2d at 287. There is a question, not

briefed by the parties, as to whether the SJC applied a standard at

least as favorable to Obershaw as the federal standard, in which

case the deferential AEDPA standard of review would apply, or not,

in which case we would review Obershaw's claim de novo. See Ouber 8

v. Guarino, 293 F.3d 19, 31-32 & n.8 (1st Cir. 2002). Obershaw

assumes that de novo review is proper here, while respondents

assume that the deferential AEDPA standard of review applies. It

is unnecessary here to resolve the issue, because we would reach

the same conclusion under either standard of review: the

prosecutor's comments do not form a basis for habeas relief.

First, the prosecutor said, "I suggest to you in no

uncertain terms" that Obershaw "lied to you" and to the police. In

a similar vein, the prosecutor later called Obershaw's claim that

he did not remember killing Brian "an insult to your intelligence
-23-

. . . as jurors." This theme, that the story Obershaw told the

jury was a lie, was reiterated several more times. Obershaw argues

that these statements were nothing more than the prosecutor's

personal opinion. Not so; it was reasonable to view them as

comments based on the evidence. As the SJC noted, there was ample

evidence that Obershaw told the jury a story that not only was

different from the one he told the police, but also was

implausible. Obershaw, 762 N.E.2d at 288-89. The prosecutor was

simply urging the jury to draw a particular conclusion from the

evidence, and the comment that the apparent lie was "insult[ing]"

was, as the SJC observed, "no more than a 'rhetorical flourish,'

undoubtedly recognizable to the jury as such." Id. at 289 (quoting

Commonwealth v. Hamilton, 686 N.E.2d 975, 981 (Mass. 1997)).

Second, Obershaw claims there was no evidence showing

that Brian was struck with the "ten blows" to which the prosecutor

referred. But the medical examiner testified that there were "at

least ten blows to the head" (in addition to multiple injuries to

other parts of the body).

Third, Obershaw notes that the court precluded the

Commonwealth's forensic expert from testifying as to what caused

several gouge marks on the bathroom wall. Citing that limitation,

he challenges the prosecutor's claims that "[the expert] show[ed]

you . . . gouge marks," that "he showed you that photograph with

the gouges in it," and that the marks showed that "[you] can see
The prosecutor was arguing that Brian's head was near the 9

ground when he was struck. 

-24-

where this defendant is pounding away on his skull." The expert 9

had in fact testified about the significance of certain aspects of

the photographs. The prosecutor did not tell the jury that the

expert had testified that it was Obershaw's blows with the Club

that caused the marks. That was a reasonable inference supported

by other evidence at trial, and the court had told the prosecutor

he was free to so argue.

Fourth, Obershaw argues that there was no evidentiary

support for the prosecutor's statements that at the time the gouge

marks were made, Brian was "alive" and "suffering," and that Brian

"was alive throughout the entire beating." But there was indeed

such evidence: Obershaw himself testified that Brian, "very badly

hurt," "covered in blood," and making "ugly breathing sounds," died

in his arms; further, the medical examiner testified that Brian

lived for at least several minutes after the first blow, that he

had defensive wounds, that he had brain injuries which required

several minutes to develop, and that he sustained bruises to his

ankles while still alive -- bruises likely incurred after the

beating, given Obershaw's testimony that, believing Brian already

dead, he dragged Brian by the ankles down the stairs before putting

him in the trunk of his car.
-25-

Fifth, Obershaw argues that the prosecutor improperly

stated his personal opinion when he asked whether Obershaw was

"indifferent to his brother's suffering" and answered, "You bet he

was. Look at what he did: backed him into a corner and beat him as

he lay there defenseless. He showed him no mercy, he was

indifferent to [Brian's] suffering." The prosecutor was not

stating his opinion, but rather urging the jury to draw a

reasonable inference from the evidence. As the SJC noted, the

"[y]ou bet" language was simply "a colloquial way of emphasizing

the defendant's indifference." Id. at 289.

Finally, Obershaw takes issue with the prosecutor's

suggestion that Brian "died in agony, . . . begging his brother to

stop." Obershaw argues that there was no evidence to support the

claim that Brian was "begging" him to stop. The SJC agreed. Id.

at 288. It reasoned, however, that the remark had to be evaluated

in the context of the entire summation, the jury charge, and all of

the trial evidence, and that the "begging" claim "was not central

to the case." Id. The SJC also noted that "the judge instructed

the jury that the closing arguments of counsel were not evidence,"

id., and Obershaw concedes as much. We agree with the SJC that in

context, the remark, though incorrect, was unlikely to have caused

unfair prejudice to Obershaw.
-26-

There is one challenge which, although he did not raise

it at trial, Obershaw raised on appeal to the SJC and raises again

here. Obershaw points to the following passage:

Now, I'm going to be honest with you,

ladies and gentlemen, I don't really give a

crap what [Obershaw] went through. I'm here

to tell you what his brother Brian went

through, and those photographs, all 90 of

them, show you what his brother Brian went

through. And the testimony tells you what his

brother Brian went through, and how his

brother Brian died. I suggest to you [that]

he died in agony, he died begging his brother

to stop, he died with his hands over his head

until he was pounded to the point of

defenselessness, and . . . this guy just went

on swinging that Club.

Obershaw argues that this was an improper appeal to

emotion. Because it found that this objection (as distinct from

the evidentiary challenge to the "begging" claim) was not made at

trial, the SJC reviewed only "to determine whether there has been

any error that creates a substantial likelihood of a miscarriage of

justice." Id. at 289. The SJC noted that it was improper for the

prosecutor to interject his personal opinion to the effect that he

did not "really give a crap what [Obershaw] went through." Id.

Even so, the SJC reasoned, the argument did not "play[] to the

emotions and sympathies of the jury," and in the context of the

entire, lengthy closing argument, this one small portion "could not

have created a substantial likelihood of a miscarriage of justice."

Id.
-27-

We cannot review this claim, because "[i]n all cases in

which a state prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state procedural

rule, federal habeas review of the claims is barred." Coleman v.

Thompson, 501 U.S. 722, 750 (1991). The default may be excused,

and the bar to federal habeas review removed, only in certain

circumstances: where "the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice." Id.

Where, as here, the state court finds forfeiture because

of the defendant's failure to object at trial, the fact that it

reviews for a "substantial likelihood of a miscarriage of justice"

does not constitute a waiver of the requirement that the defendant

timely object. Lynch, 438 F.3d at 45; Horton, 370 F.3d at 81. In

sum, there is an independent and adequate state ground for decision

here. Obershaw makes no effort to challenge that conclusion by

showing cause for the default and prejudice therefrom, or by

demonstrating that "failure to consider the claims will result in

a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

III.

The judgment of the district court denying the petition

for habeas corpus is affirmed.