*Of the United States Court of Appeals for the Tenth Circuit,

sitting by designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1901

TORAINO PRIDGEN,

Petitioner, Appellant,

v.

JAMES SABA ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

 Selya, Circuit Judge,

Baldock,* Senior Circuit Judge,

and Howard, Circuit Judge.

Karen Elizabeth Morth for petitioner.

Susan G. Reardon, Assistant Attorney General, with whom Thomas

F. Reilly, Attorney General, was on brief, for respondent.

May 20, 2005
Per Curiam. Toraino Pridgen and his brother Satron Pridgen

were convicted in 1999 in Massachusetts Superior Court of assault

and battery with a dangerous weapon. The convictions followed

their joint trial on charges stemming from an early morning

shooting at a birthday party in Fitchburg, Massachusetts, on

October 25, 1998. Toraino Pridgen has brought this appeal

challenging the district court's denial of his petition for a writ

of habeas corpus under 28 U.S.C. § 2254. The writ alleged denials

of due process in the form of arguments that Pridgen was convicted

on legally insufficient evidence, see Jackson v. Virginia, 443 U.S.

307 (1979), and that his joint trial with his look-alike brother

(who, in petitioner's view, was asserting an antagonistic defense)

rendered his trial fundamentally unfair, see Zafiro v. United

States, 506 U.S. 534 (1993).

The parties clash over the appropriate standards of review and

whether the joint trial issue is properly before us. But even if

we assume arguendo proper issue preservation and the applicability

of petitioner-friendly reviewing standards, we see no error in the

district court's denial of the petition. As petitioner recognizes,

the conviction was appropriate if a reasonable jury could have

found that petitioner was present at the scene of the crime with

knowledge that his brother intended to commit the crime and, by

agreement, was willing and available to assist his brother if
1This is not the only theory under which the jury might have

convicted petitioner, but it is a theory that is both consistent

with the jury instructions and, as we explain, supported by the

trial testimony.

2To arrive at this conclusion, the jury would have had to find

that the victim -- who testified that petitioner shot him after a

nod from petitioner's brother -- confused the two. But there was

ample evidence, including evidence that the brothers strongly

resembled one another and that the brother was the shooter, to

support such a finding.

3In presenting his arguments, petitioner makes much of the

trial court's refusal to instruct the jury that the defendants'

intentions with respect to the man they initially accosted (but did

not shoot) properly could be "transferred" to the shooting

incident. Petitioner also highlights the trial court's decision to

strike the shooting victim's characterization of the nod that

preceded the shooting as one of "agreement." Petitioner seems to

infer from these rulings that the earlier assault evidence is

largely irrelevant and that any nod was not one of agreement. But

the refusal to give a transferred intent jury instruction is, quite

plainly, not tantamount to a determination that the evidence of the

initial assault had no relevance to the issues of knowledge and

intent raised in this case; to the contrary, the jury remained free

to draw from this evidence any conclusions about petitioner's

intent and knowledge that were reasonable. And similarly, the

-3-

necessary. See Commonwealth v. Bianco, 388 Mass. 358, 366 (1983).1

Here, the trial evidence warranted such a finding. There was

testimony from which the jury could have concluded that petitioner,

shortly after encouraging his brother to shoot another party guest,

nodded to his brother just before his brother shot the victim.

2

This testimony tends to establish petitioner's physical presence at

the crime scene, his prior knowledge of his brother's mens rea, and

his personal intent to support his brother in the contemplated

shooting crime. No more was constitutionally required to ground

the conviction.3
striking of the victim's characterization of the nod does not mean

that the jury was precluded from inferring for itself that the nod

was one of support and that it communicated a promise of assistance

if necessary.

-4-

There also was no constitutional violation in permitting the

brothers to be jointly tried. Petitioner's only developed argument

that a severance was constitutionally required proceeds from the

premise that there was insufficient evidence to convict petitioner

under a joint venture theory -- a premise we have just rejected.

Moreover, and in any event, a joint trial in the case of

antagonistic defenses violates a defendant's constitutional due

process rights only if it compromises a specific trial right of the

defendant or if it prevents the jury from making a reliable

judgment about guilt or innocence. See Zafiro, 506 U.S. at 539

(elaborating a severance might be required where evidence is

admitted that is probative of a defendant's guilt but admissible

only against a codefendant, or where evidence that tends to

exculpate a defendant is excluded because of the presence of a

codefendant). And here, petitioner has failed to establish either

a deprivation of a specific trial right or that the jury's judgment

should be disregarded as unreliable.

For the reasons stated, we affirm the denial of petitioner

Toraino Pridgen's petition for a writ of habeas corpus.

So ordered.