United States Court of Appeals

For the First Circuit

No. 09-1522

ALBERTO TORRES,

Petitioner, Appellant,

v.

KATHLEEN DENNEHY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Boudin, Circuit Judges.

John M. Thompson with whom Thompson & Thompson, P.C. was on

brief for petitioner, appellant.

Natalie S. Monroe, Assistant Attorney General, Criminal Bureau,

with whom Martha Coakley, Attorney General, was on brief for

respondent, appellee.

July 27, 2010
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BOUDIN, Circuit Judge. Alberto Torres was indicted for

murder in Massachusetts Superior Court in May 1997 for causing the

death of his girlfriend's fifteen-month-old child in October 1996

and for charges growing out of the alleged abuse of her two other

children. An autopsy of the deceased child revealed a weeks-old

broken leg; bruising over most of his body; and significant internal

injuries, including a tear of the small intestine likely caused by

a single blow "of massive force" roughly twelve hours before his

death. Torres was tried by a jury, found guilty of murder and

sentenced to life imprisonment in April 1999.

After his state appeals proved unsuccessful, Torres filed

this petition for habeas corpus in which he claims, first, that

police deliberately elicited statements from him in violation of the

Sixth Amendment, and, second, that his counsel was ineffective for

not raising this objection at trial. To place the objections in

context we describe very briefly the evidence at trial and the

events bearing on the statements that Torres says were improperly

obtained.

The government's trial evidence consisted primarily of

testimony from Torres' neighbors, forensic evidence and statements

by Torres himself. Multiple neighbors testified that they had often

seen Torres and his girlfriend, Susan Fappiano, abuse the children,

but that Fappiano had never done so with the fifteen-month-old, who

was described as her "favorite." One neighbor reported seeing
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Torres throw the baby against a couch, and another testified that on

the day the baby died, Torres picked him and shook him while yelling

"shut up." Police responded to a 911 call from Fappiano later that

day and found Torres holding the baby, by then lifeless.

At the scene, the police asked both Torres and his

girlfriend for an explanation of bruising on the child. Fappiano

told them that the baby had fallen out of his stroller, and Torres

nodded in agreement; but when Torres was again asked what had

happened, he stated that he had done nothing wrong and attempted to

walk away. Later that night, Torres again denied any wrongdoing,

telling police that neither he nor Fappiano ever struck their

children, aside from Fappiano's occasional "slap [on] their hands."

This story changed in subsequent meetings with the police.

Roughly a week after the 911 call, Torres met with the police and,

when told that Fappiano had blamed him for the child's death, told

them that Fappiano had "abused the kids." Two days later, Torres

again met with the police and now stated that he had seen Fappiano

strike her children "quite a few times," acknowledging that he had

lied about this in earlier statements. Throughout these meetings,

Torres continued to deny any wrongdoing and to offer innocuous

explanations for some of the baby's more serious injuries, saying,

for example, that the baby had broken his leg by falling off a

couch.
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An additional set of statements--those central to the

present appeal--were given by Torres to the police after he was

indicted in May 1997. At that time, Torres was in jail on charges

unrelated to this case. Instead of having the sheriff serve the

indictment on Torres--apparently the normal procedure, Mass. Gen.

Laws ch. 277 § 65 (2010)--the prosecutor sent two troopers, Barry

O'Brien and Andrew Bzdel. O'Brien was the lead investigator in the

case, and Bzdel had interviewed and taken statements from Torres

during the initial investigation into the child's death in October

1996.

The prosecutor instructed the two troopers that Torres was

represented by counsel and that they should not question him, but

did not inform Torres' lawyer of the indictment or that it would be

delivered directly to Torres. Torres had been assigned counsel in

connection with the grand jury proceedings relating to the death of

the baby and the abuse of the other two children, and it was

anticipated that the same lawyer would be assigned to represent him

once he was charged with those offenses.

The two troopers met with Torres in jail; explained to him

that he had been indicted and that they had a warrant for his arrest

on those indictments; and, knowing that Torres could understand

English but could not read it, read the indictments to him out loud.

The Supreme Judicial Court of Massachusetts ("SJC"), described the

remainder of this interaction as follows:
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After hearing just the first indictment, the

defendant interrupted, saying that he had not

hit any of the children. The trooper told him

to stop, and the trooper resumed the reading of

the remaining indictments. The defendant

interrupted again. At that point . . . the

trooper read the defendant his Miranda

warnings. Beyond the standard warnings, the

trooper also told the defendant that he knew

the defendant had a lawyer and that he (the

defendant) should not say anything about the

new charges. The defendant replied that his

lawyer had told him there was nothing to worry

about, and that he wanted to speak to the

officers. The trooper asked him whether he

really wanted to do so, reminding him of the

rights that had been read to him and that he

already had a lawyer. The defendant insisted

that he wanted to talk. The trooper then read

the defendant his Miranda rights a second time,

and the defendant acknowledged that he

understood each of those rights. The defendant

then gave a statement, the contents of which

were introduced at trial.

Commonwealth v. Torres, 813 N.E.2d 1261, 1276-77 (Mass. 2004)

(footnotes omitted). During this conversation, Torres told the

police that Fappiano "must have" killed the child, but he refused to

reduce his statement to writing, saying his lawyer had advised

against it. Torres eventually told the troopers that he wanted to

speak with his lawyer, and the conversation ended.

As Torres was being prepared to return to his cell, he

gestured to Bzdel and asked him to come over. Torres then said,

contrary to earlier statements, that he had seen Fappiano kill the

baby; Bzdel asked what Fappiano had done, but Torres responded that

he could not tell him. Later that afternoon, Torres asked to speak
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with a correctional officer and told the officer that Fappiano had

"kicked [the baby] repeatedly" before his death--a description that

conflicted with forensic evidence.

Torres was found guilty at trial and sentenced to life

imprisonment, his May 1997 statements being introduced against him

at trial to show evidence of a joint venture with Fappiano and

consciousness of guilt. He filed a notice of appeal and thereafter

unsuccessfully moved for a new trial, asserting for the first time

that his May 1997 statements were taken in violation of his Sixth

Amendment right to counsel because the troopers, knowing that he had

an attorney, visited him at jail in hopes that he would make

inculpatory statements.

The Sixth Amendment guarantees criminal defendants the

right to counsel once formal criminal proceedings have begun, see

Moran v. Burbine, 475 U.S. 412, 428 (1986); from that point forward,

government agents may not "deliberately and designedly set out to

elicit information" from a defendant represented by counsel, Brewer

v. Williams, 430 U.S. 387, 399 (1977); see also Massiah v. United

States, 377 U.S. 201, 205-06 (1964). However, "[t]he defendant may

waive the right whether or not he is already represented by counsel;

the decision to waive need not itself be counseled." Montejo v.

Louisiana, 129 S. Ct. 2079, 2085 (2009); see also Michigan v.

Harvey, 494 U.S. 344, 352 (1990).
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The SJC affirmed both Torres' conviction and the denial of

his motion for a new trial, holding among other things that the

record failed to show that the troopers had deliberately attempted

to elicit statements from him in violation of the Sixth Amendment.

Torres, 813 N.E.2d at 1278. On October 19, 2005, Torres filed a

petition for habeas corpus in federal district court in which he

asserted the Sixth Amendment and inadequate assistance claims, along

with an attack on the evidence and a Confrontation Clause claim.

The district court entered summary judgment against Torres

on his deliberate elicitation and ineffective assistance claims,

concluding that while various interpretations of the record might be

possible, the SJC's findings were adequately supported and

reasonable. Torres v. Dennehy, No. 05-30226, slip op. at 14-15, 22

(D. Mass. Jan. 4, 2008). The district court denied reconsideration

but certified appealability as to all claims except the attack on

the evidence and entered final judgment denying the habeas petition.

On this appeal, Torres presses only the deliberate elicitation and

ineffective assistance claims.

We review the district court de novo, Forsyth v. Spencer,

595 F.3d 81, 84 (1st Cir. 2010); but the governing habeas statute,

as amended by the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), provides that state courts' factual findings are

presumed correct absent clear and convincing evidence to the
Section 2254(e)(1) states that "determinations of a factual 1

issue made by a State court shall be presumed to be correct," and

that "[t]he applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence"; section

2254(d)(2) of the AEDPA states that a petition alleging factual error

will be granted only if the state court proceeding "resulted in a

decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding." 

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contrary, 28 U.S.C. § 2254(e)(1) (2006), and that their 1

dispositions of federal law are to be set aside only when "contrary

to, or . . . an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court," id. § 2254(d)(1).

A state court decision is "contrary to" federal law if it

"arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or . . . decides a case differently than

[the Supreme] Court has on a set of materially indistinguishable

facts," and it is an "unreasonable application" of federal law if it

"identifies the correct governing legal principle from [the Supreme]

Court's decisions but unreasonably applies that principle to the

facts of the [defendant's] case." Thaler v. Haynes, 130 S. Ct.

1171, 1174 (2010) (per curiam) (quoting Williams v. Taylor, 529

U.S. 362, 413 (2000)).

Torres first takes issue with the SJC's conclusion--

factual, he says--that the troopers did not "deliberately elicit"

information from him when visiting him in jail on May 31, 1997.

Torres' claim--which at times bleeds into a legal argument,

addressed later--is that the troopers' visit to read the indictment,
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rather than having the sheriff do so, shows that the government

intended to elicit testimony from him. The district court concluded

that this argument "boils down to an ardent presentation of one

version of what might conceivably have happened on May 31, 1997."

Torres, No. 05-30226, slip op. at 14.

While Torres presents an arguable interpretation of the

facts, the SJC found otherwise and provided adequate support for its

position. In particular, the SJC stated that

[w]hatever suspicions the defendant might have

on that subject, the motion judge's findings

with respect to what the troopers actually said

to the defendant once they got to the jail

would belie the defendant's theory--if their

intention and hope had been that reading the

indictments out loud would prompt the defendant

to start making a statement, they would not

have cut off his attempt to do so during the

reading of the indictments, nor would they have

advised him against speaking to them when he

did so a second time, nor would they have

suggested that he speak instead with his

lawyer. 

Torres, 813 N.E.2d at 1278. Torres' counter-arguments do not show

that the state courts' determination of the facts was unreasonable.

See Wood v. Allen, 130 S. Ct. 841, 849 (2010) (quoting Taylor, 529

U.S. at 410-11).

Torres makes two collateral arguments, the first of which

is that the SJC should not have relied on the motion judge's

findings of fact because they were made in the context of a Fifth

rather than Sixth Amendment claim. But this context did not alter

the historical facts found by the motion judge as to the progression
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of the conversation and conclusions that Torres spoke "spontaneously

and over the objection of Sergeant O'Brien," and the SJC was

entitled to rely upon those findings in reaching its own conclusion.

 See Marshall v. Lonberger, 459 U.S. 422, 435 (1983); Teti v.

Bender, 507 F.3d 50, 59 (1st Cir. 2007), cert. denied, 552 U.S. 1287

(2008).

Torres' second, related argument is that the district

court should have made supplemental findings of fact because, he

says, the SJC's findings "focus[ed] almost exclusively on what

transpired after the officers already initiated a conversation with

Mr. Torres" when (Torres asserts) other evidence makes clear that

the troopers knowingly exploited their opportunity to read the

indictments to Torres. Torres insists that "uncontradicted

testimony" supports his argument, but he does not point to any

particular statements about events prior to that conversation.

Probably the strongest version of this argument would be

to say that the prosecutor's choice of the troopers rather than the

sheriff to read the indictment must have been intended to elicit

statements. But there is no direct proof of this and, as noted, the

troopers' repeated warnings to Torres were at odds with any supposed

effort to elicit statements. So there is no need to consider

whether, even if the prosecutor hoped to elicit statements, the
The circumstances are less suspicious than they might appear. 2

There is some indication in the record that the prosecutor was

concerned that Torres might be released before he was formally

detained under the new indictment, which entailed prompt delivery of

the indictment most easily accomplished by direction to the troopers;

and, as for reading rather than mere delivery of the indictment,

Torres apparently could not read English even though he understood

it.

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causation chain was broken by the troopers' self-restraint in the

interview.2

Torres' next set of arguments assert something closer to

legal error, namely, that the SJC decision conflicts with Supreme

Court decisions on elicitation under the Massiah and Brewer line of

cases and so is contrary to, and an unreasonable application of,

clearly established federal law. In particular, he argues that the

troopers' action should be condemned under an objective standard

even if they lacked a subjective intent to elicit statements. The

government says that the objective-test argument was not made below

but that the troopers' conduct passes that test as well.

Brewer neither supports an objective standard nor has any

resemblance to our case. There the Supreme Court found that the

officer "deliberately and designedly set out to elicit information"

from the defendant, 430 U.S. at 399, urging him to "[j]ust think

about" the fact that a girl he had been indicted for murdering would

never receive a proper burial given that winter was approaching.

Id. at 393. The Court went on to quote the officer's testimony at
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trial that he had hoped to get the very admission he secured. Id.

at 399.

Torres also relies on Fellers v. United States, 540 U.S.

519 (2004). There, officers--who arrived to arrest Fellers after he

had been indicted on drug charges--said that they wanted to discuss

with him his involvement in drug dealing and association with

certain co-conspirators; and the defendant made incriminating

statements in response. The Supreme Court held that "there is no

question that the officers . . . 'deliberately elicited' information

. . . . Indeed, the officers . . . informed him that their purpose

in coming was to discuss his involvement in the [crimes]." Id. at

524.

The equating of deliberate elicitation with "purpose" in

Fellers pretty clearly suggests a concern with subjective intent of

the officers; and the case is certainly distinguishable on its

facts. The troopers did not ask Torres for information and in fact

told Torres not to interrupt the reading of the indictment and

reminded him that he had a lawyer. It was Torres who nevertheless

insisted that he wanted to talk. Thus the SJC's decision is neither

"contrary to" nor an "unreasonable application" of Fellers or

Brewer. Taylor, 529 U.S. at 412-13.

Finally, one phrase in United States v. Henry, 447 U.S.

264, 274 (1980), could be read to invoke an objective standard, the

Court saying tersely that police may cause a violation of Sixth
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Amendment rights by "intentionally creating a situation likely to

induce [a defendant] to make incriminating statements without the

assistance of counsel." Although one circuit court has endorsed an

objective standard, Beaty v. Stewart, 303 F.3d 975, 991 (9th Cir.

2002), cert. denied, 538 U.S. 1053 (2003), this single sentence in

Henry is far from clear: it could be taken to mean that the police,

having deliberately created a situation, could be inferred to have

intended the obvious consequences.

In fact, Henry, like Maine v. Moulton, 474 U.S. 159

(1985), involved the deliberate use of informants to elicit

information from a defendant represented by counsel. 474 U.S. at

161, 176-77; 447 U.S. at 270-71. Thus, like the other Supreme Court

cases, Henry and Moulton involved deliberate elicitation. At best,

the Supreme Court's standard "remains somewhat unclear," LaFave et

al., Criminal Procedure § 6.4(g), at 691 (3d ed. 2007), so the SJC's

reading is neither in direct conflict with nor an unreasonable

application of Supreme Court precedent.

Even if an objective standard governed, we could hardly

conclude that reading an indictment to a defendant is (in Henry's

terms) "likely to induce," 447 U.S. at 274, a defendant to make

incriminating statements, any more than making an arrest is likely

to do so. This is especially so where, as here, the "situation,"

id., includes statements by the officers telling the defendant not

to interrupt their reading of the indictment and warnings that he
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was represented by counsel and should not say anything about the new

charges in the indictment.

Because the elicitation issue was resolved on the merits

against Torres, it does not matter whether counsel ought to have

raised it earlier, and his ineffective assistance of counsel claim

fails. Similarly, we need not reach Torres' argument that his

Miranda waiver--given during the interview with the troopers--was

invalid since it depends on the assumption that interview was itself

a Sixth Amendment violation.

The district court's judgment is affirmed.