* Of the District of Rhode Island, sitting by designation. Not for Publication in West's Federal Reporter Citation Limited Pursuant to lst Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

No. 03-1570 JOSEPH DECICCO, Petitioner, Appellant,

v. LUIS SPENCER, SUPERINTENDENT, MCI NORFOLK,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge ]

Before Selya, Circuit Judge , Coffin, Senior Circuit Judge , and Smith, * District Judge .

Stephen Hrones , with whom Hrones & Garrity , was on brief for appellant. Dean A. Mazzone , Assistant Attorney General, with whom Thomas F. Reilly , Attorney General, was on brief for appellee.

March 24, 20041 An abbreviated version of the facts was given in th e

appellate court's decision affirming denial of petitioner's motion for new trial. See Commonwealth v. DeCicco ,744 N.E.2d 95, 97 (Mass. App. Ct. 2001). -2-

COFFIN, Senior Circuit Judge . Two courts – one state and

one federal – have concluded that the 1994 state trial that resultedin petitioner Joseph DeCicco's convicti on fo r seconddegree felony murd er was significantly flawed. Neither court, however, felt that the errors warranted reversal of his conviction. In this appeal from the district court's rejection of his petition for habeas corpus relief, DeCicco again asserts that the j ury 's finding of guilt may not stand . We have carefully reviewed the recordand caselaw, but find no basis for changing the outcome. Because petitioner's claims have been fully addressed in the prior decisions, we confine our discussion to the most salient points. The facts underlying this case are described in detail in the opinion issuedby the Massachusetts Appeals Court on direct appeal,

see Commonwealth v. DeCicco , 688 N.E.2d 1010, 1012-14 (Mass. App. Ct. 1998), 1 and the procedural history is fully recited in the opinion of the magistrate judge fromwhich this appeal arises. It thus suffices to provide only brief context. Petitioner and George Madden, a neighbor an d frequent companion, were both charged in connection with the arson of a home adjacent to the apartment build ing where they lived. Both men had strained relationships with the home owner, whose s on died in the blaze from smoke-3-

inhalation; the father had recently stopped providing them with cocaine, and they had been trying to persuade him to resume. Petitioner and Madden each contended the other had thrown the fire bomb that triggered the blaze. The jury found petitioner guilty of second-degree murder and several other crimes. Two issues are before us. First, petitioner claims that the prosecutor improperly bolst ered the credibility of Madden, the government's key witness, by telling the jury that he would be triedlater for first-degree murder and was not receiving any plea benefits for his testimony. As it turned out, Madden pleaded guilty eleven mont hs later to a reduced charge of manslaughter. Petitioner argues that the jurors woul d have viewed Madden's damaging testimony less favorably, and would not have convicted petitioner, had the prosecutor not misled them. Second, petitioner asserts that his trial counsel was ineffective because he told the jury that petitioner would testify but then did not call him to the stand. Petitioner contends that this failure to follow through on a pr omise damaged counsel's credibility with the jury and strengthened the government's version of the facts by allowing Madden's testimony to remain unopposed. The courts that previously have ruled on these two issues confrontedtwo li mitations on the scope of their review: the jurisprudence of waiver and t he highly deferential standard2 One judge on the panel dissented, stating: "In view of th e

weakness of the government's case apart from Madden's testimony, I believe that the misleading evidence concerning Madden's potential motives for bias l ike ly 'affected the judgment of the jury,' requiring reversal." 744 N.E.2d at 101.

3 To demonstrate a fundamental miscarriage of justice, the petitioner must establ i sh that "'a constitutional violation has probably resulted in the conviction of one w ho is actually -4- applicable to habeas claims. As we shall explain, those factors likewise constrain our assessment. We take each issue in turn. Bol stering Claim. Petitioner first raised t he issue of Madden's plea agreement in a motion for new trial that he submitted after the Massachusetts Appeals Court ruled against him on direct appeal. The trial court denied the motion. In its subs eque nt ruling, the Appeals Court indicated that the bolstering claim was waivedbecause it was not raised on direct appeal. See 744 N.E.2d at 97. It applied the standard applicable to wa ived claims, see id. (citing Commonwealth v. Amirault , 677 N.E.2d 652 (Mass. 1997)), andfound that there was no substantial risk that the result would have been different without the asserted error, 2 i d. at 1 00. On habeas review, the district court applied long established case law

on procedural default and concluded that petitioner failed to show cause for omitting the bolstering claim from earlier proceedings. See Wainwright v. Sykes , 433 U.S. 72, 87 (1977); Burks v. Dubois , 55 F.3d 712, 716 (lst Cir. 1995). Consequently, the district court consideredonly whether his conviction was a f u ndamental miscarriage of justice, and found that it was not. 3inn ocent. '" Schlup v. Delo , 513 U.S. 298, 327 (1992) (quoting

Murray v. Carrier , 477 U.S. 478, 496 (1986)).

4 M adden's disposition was disclosed in the Commonwealth ' s brief on appeal.

5 The rule allows admission of new evi denc e into the record either through stipulation by the parties or on motion "[i]f anything material to either party is omitted from the record by error or accident or is misstated therein . . . ." Mass. R. App. P. 8(e). -5- We agree with the district court's reasoning. Petitioner knew before his direct appeal was argued about the change in Madden's status, 4 and it appears that Mass. R. App. P. 8(e) would have allowedthe Commonwealth Appeals Court to admit the fact of Madden's plea agreement into evidence even though it was not in the t rial court record. 5 See , e.g. , Commonwealth v. Harriso n , 71 2 N.E.2d74, 75 n.1 (Mass. 1999) (the fact of defendant's guilty plea to a federal charge was not part of the original record, but was adm itted by the Appeals Court on motion by the Commonwealth). Although petitioner disputes the efficacy of the rule for this purpose, we do not see why Madden's late-arising deal would not qualify as a "material" fact that had been either omitted from, or misstated in, the record. Petitioner made no attempt to test the rule. See Commonwealth v. Randolph , 780 N.E.2d 58, 64 (Mass. 2002) ("At its core, the waiver doctrine states that a defendant must raise a claim of error at the first available opportunity."). We acknowledge that the state appeals panel that did consider the issue refrained from explicitly terming it waived, observi n g6 We note that, even if we did not view the claim as waive d ,

the outcome would be the same; on this record, we could not say that the Massachusetts court's decision either was contrary to or involvedan unreasonable application of clearly established federal law. See infra at 7. -6- insteadthat petitioner's failure to raise it at trial or on direct appeal " implicates the possibility of waiver, " 7 44 N.E.2d at 97 (emphasis added). But the c our t then went on to utilize the standard of review applicable to waived claims. In our view, the court thus treated the bolstering issue as waived, limiting its own review with the consequence of limiting ours as well. We therefore hold that the district court properly disposed of this issue. 6 Ineffective Assistance of Counsel/Unfulfilled Promise. The Massachusetts Appeals Court concluded that defense counsel "failed to meet a minimum standard of performance by announcing to the jury that the defendant might testify without first having met with him to discuss that possibility and to prepare him for it," 688 N.E.2d at 1088. Pursuant to the two-part test applicable under both federal and state law for ineffective assistance claims, the court then explored whether counsel's deficient representation was prejudicial, see Stricklandv. Washington , 466 U.S. 668, 687, 694 (1984); Commonwealth v. Johnson , 754 N.E.2d 685, 694 (Mass. 2001), and found that it was not. See 688 N.E.2d at 122-24. The district court, in turn, co nsidered the issue with the substantial deference required by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Williams v. Taylor , 529 U.S. 362,7 The distinctions noted by the district court included: ( 1 )

prior cases involved more dramatic, unequivoc al and repeated promises that the defendant or an expert would testify; (2) petitioner's version of events did re ach th e jury through the cross-examination testimony of State Trooper Cox, albeit in a less -7- 412-13 (2000); McCambridge v. Hall , 303 F.3d 23, 35-37 (lst Cir. 2002) (en banc). In relevant part, that stat ute bars a federal court from granting habeas r elie f unless the state court adjudication "resulted in a dec ision that was contrary to, or involvedan unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1). The district court agreed that "trial counsel undoubtedly made a serious error," but disagreed with the finding of no prejudice: "If viewed de novo , this court wouldconclude that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different." The court recognized that the question was close, however, and, in light of the constraints imposed by AEDPA, could not say that the Appeals Court's dec ision was an unreasonable application of the prejudice prong of the Stricklandtest. Both t he M assachusetts Appeals Court and the district court assessed prejudice by reviewing the relevant distinctions between this case and other cases in which habeas relief was granted based

on counsel's failure to call a defendant or expert whose testimony had been promised in an opening statement. As the district court observed, the differences add up to a very close case. 7 Given thepowerful form than live testimony from petitioner himself; (3) the

cumulative nature of his testimony diminished the likelihood that the jury would draw a negative inference from his non-appearance. Se e Ouber v. Guarino , 293 F.3d 19 (1st Cir. 2002); Anderson v . Butler , 858 F.2d 16 (1st Cir. 1988). -8- narrow s phere in which we may act, we are compelled to affir m dismissal of the habeas petition. Regardless whether we would make the same judgment, we cannot say the conclusion reached by the state appeals court was objectively unreasonable. Affirmed.