United States Court of Appeals

For the First Circuit

No. 00-2305

ROBERT E. FORTINI, III,

Petitioner, Appellant,

v.

PAUL B. MURPHY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Boudin, Chief Judge,

 Lynch and Lipez, Circuit Judges.

Robert L. Sheketoff with whom Sheketoff & Homan was on brief

for petitioner.

Thomas W. Dee, Assistant Attorney General, Criminal Bureau,

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

respondent.

July 27, 2001
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BOUDIN, Chief Judge. This is an appeal by Robert

Fortini from a federal district court order dismissing Fortini's

petition for a writ of habeas corpus. Fortini is currently

serving a life sentence, having been convicted in state court of

second degree murder. Fortini's claim depends critically on the

facts of the case which we describe in some detail, identifying

the few significant details that were disputed. 

In 1992, Fortini lived in a second-floor apartment with

his girlfriend, Jacie Hall, and her cousin, Tammy Peckham, in

Plymouth, Massachusetts. Between 5 p.m. and 9 p.m. on June 22,

Ceasar Monterio--Fortini's eventual victim--came to the

apartment on at least three occasions looking for Peckham. On

one occasion Fortini went downstairs and told Monterio that

Peckham was not at home. Shortly after Monterio's last

appearance, Hall heard the occupants of a car shouting

profanities as the vehicle drove past the house and she told

Fortini about the incident.

After spending the evening watching television and

cleaning his shotgun, Fortini went to bed at 11:30 p.m. At

11:50 p.m., he was awoken by a car horn and a male voice,

screaming curses and racial epithets towards the house (Fortini

is white; Monterio was black). Fortini got out of bed, got
1There is some uncertainty as to whether Fortini had the

shotgun when he first went down to the porch or took it down

only after he called the police. Compare Commonwealth v.

Fortini, 692 N.E.2d 110, 111 (Mass. App. Ct. 1998), with id. at

112. The trial transcript suggests that he went down with the

shotgun after he called the police.

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dressed and proceeded down to the his first-floor front porch.1

After sitting on the porch for a period, he returned to his

apartment and, at 12:48 a.m., called the police to report the

earlier disturbance. The police did not dispatch officers to

the house, but the dispatcher told Fortini that if he got a

license "plate or something . . . [the police could] check them

out." 

Fortini then retrieved his shotgun and ammunition and

returned to his seat on the downstairs porch. Although the

steps to the second floor were lighted, the porch was not. At

approximately 1:15 a.m., Monterio and a friend (Dana Lopes)

returned to the house. According to Fortini, he heard two sets

of footsteps and a whispered conversation. He then heard a

voice say, "watch this shit, we're going to wake some

motherfuckers up." Shortly thereafter, he saw someone (who

proved to be Monterio) start up the stairs moving rapidly to the

porch.

As Monterio reached the porch, Fortini stood up and

took a couple of steps forward towards the porch steps with the
2Whether Fortini said anything before shooting Monterio is

not certain: Monterio's companion (Lopes) said that Fortini did

not say anything; Fortini's girlfriend (Hall) said that she did

not hear anything before the gunshot, but she also testified

that she was asleep at the time. By contrast, Fortini's next

door neighbor testified that she heard Fortini yelling before

the gunshot. 

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shotgun in his hands. According to Fortini, he then yelled

"hey, get the fuck out of here" to the person on the porch.2 In

response, Fortini said that Monterio stared at Fortini and the

gun, centered his attention on the gun, and then lunged towards

Fortini and the weapon. Fortini took one step backwards and

fired, striking Monterio in the chest and killing him almost

instantly.

Fortini was charged with murder in Massachusetts

Superior Court. In pretrial proceedings, Fortini argued that he

believed Monterio was attempting to take the gun away from him

and that he shot Monterio in self defense. In support of this

theory, Fortini filed a motion in limine asking to introduce

evidence of Monterio's acts only five to seven minutes before he

stepped onto Fortini's porch and was killed. The evidence that

Fortini wanted to offer was this: 

According to witnesses, shortly before Monterio arrived

at Fortini's house, Monterio ran onto a basketball court where

four white males were playing night basketball. Monterio then

struck, or attempted to strike, all four men. After his
3The defense argued that Monterio's actions and statements

were relevant in three ways. First, that they illustrated a

"continuous pattern of illicit activity and aggression" by

Monterio toward Fortini. Second, that Monterio's "present anger

or <hot blood'" should be a factor in determining whether

Fortini's use of force was reasonable. Third, that Monterio's

unprovoked attack on the four white basketball players

illustrated his "hostility toward members of [Fortini's] race."

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companion (Lopes) pulled him away, Monterio yelled, "I'll kill

them all. Remember my face, I'm Ceasar Monterio. I'm the

baddest motherfucker in town." Immediately after the

confrontation, Monterio and Lopes walked towards Fortini's

house. On the way, a police officer heard Monterio again yell,

"I'm bad. I'm the baddest motherfucker in the world." Monterio

arrived at Fortini's house a few minutes later.

In his pretrial motion, Fortini argued that the

evidence of this episode was admissible because the fight and

the shooting had a "temporal and schematic nexus," and that the

evidence--by showing that Monterio had been violent that night

and was acting in "hot blood"--supported in various ways

Fortini's claim of self defense.3 Rejecting these grounds for

admission, the trial court excluded the evidence in a pretrial

ruling, finding that Fortini was not at the time of the shooting

aware of Monterio's actions on the basketball court (a point

that Fortini did not dispute), see Commonwealth v. Fontes, 488

N.E.2d 760, 762-63 (Mass. 1986), and that Fortini was not the
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subject of Monterio's threats, see Commonwealth v. Rubin, 63

N.E.2d 344, 345-46 (Mass. 1945). After a seven-day jury trial,

Fortini was convicted of second degree murder and given the

mandatory sentence of life in prison.

Fortini appealed to the Massachusetts Appeals Court,

arguing for the first time that the decision not to admit the

disputed evidence was not only error under state law but

violated the federal constitution as well. In his brief,

Fortini stated that the evidence was "relevant, trustworthy, and

critical to the defendant's defense," that its exclusion was

inconsistent with Chambers v. Mississippi, 410 U.S. 284, 303

(1973), and therefore that his constitutional right to due

process had been violated. In its appellate brief, the

Commonwealth argued that the trial court's ruling was correct as

a matter of evidence law, but it did not mention Fortini's

constitutional claim, Chambers, or the Fourteenth Amendment. 

The Appeals Court affirmed the conviction and, like the

Commonwealth's brief, only addressed Fortini's claim in terms of

Massachusetts evidence law. The court said that the trial court

might have erred in not admitting the evidence of Monterio's

behavior, Fortini, 692 N.E.2d at 113 n.6, but it found (in

substance) that any error was harmless. The Massachusetts

harmless error standard for objected-to, non-constitutional
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trial errors is that "the error did not influence the jury, or

had but very slight effect." Commonwealth v. Alphas, 712 N.E.2d

575, 580 n.7 (Mass. 1999). The Appeals Court gave two reasons:

First, the Appeals Court noted that Fortini was

permitted to introduce other evidence of Monterio's actions

which supported Fortini's contention that Monterio had acted

aggressively that evening. Specifically, the court pointed to

the evidence of Monterio's shouting and cursing at the house

earlier in the evening. Thus, the court held, Fortini was

already able to establish Monterio's "state of mind" and the

evidence of the basketball court incident "was to some degree

cumulative." Fortini, 692 N.E.2d at 113. 

Second, and more central to its decision, the court

found that Fortini's "appearance with a loaded shotgun on the

darkened porch, coupled with his decision to eschew any retreat

to the safety of his apartment, were deliberate acts of

defiance, not defense." Fortini, 692 N.E.2d at 114. On this

premise, the court held that even if it was error to exclude the

basketball court incident, Fortini had suffered no prejudice

because he could not, as a matter of law, show that he acted in

self defense in light of his decision to "lie in wait" on the

porch rather than retreating to the safety of his apartment when
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given the opportunity. Id. The Supreme Judicial Court denied

further appellate review. Commonwealth v. Fortini, 699 N.E.2d

850 (Mass. 1998). 

Fortini filed a petition for writ of habeas corpus,

which the federal district court dismissed on the grounds that

he had not exhausted available state remedies as the statute

governing habeas petitions requires. 28 U.S.C. § 2254(b)(1).

Although conceding that Fortini's state court briefs contained

"isolated references" to his federal constitutional rights, the

district court said that they did not include a "developed

argument elaborating any particular claim." The district court

observed that the state appeals court had not addressed

Fortini's constitutional claim, suggesting that it had been

unaware that such a claim was being pressed. 

Fortini now appeals to this court. He argues that the

district court erred in finding that he did not properly present

his constitutional claim in state court and, in addition, says

that excluding the basketball court episode denied him due

process under Chambers and had a likely effect on the jury's

verdict. The Commonwealth, while partly addressing the merits

of Fortini's claim, rests primarily on the district court's

waiver argument and on the strict standards for habeas now

applicable under the Antiterrorism and Effective Death Penalty
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Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See

28 U.S.C. § 2254(d)(1) (Supp. II 1996).

1. The threshold question in this case is whether

Fortini exhausted his state remedies. The Commonwealth says

that Fortini "did little if anything to properly alert the

Commonwealth's courts that he was asserting a federal

constitutional claim" and thus he is not entitled to habeas

review. The district court agreed, finding that while Fortini

had argued that the exclusion of the basketball court incident

implicated state evidence law issues, he had not adequately

raised the constitutional claim. We review de novo the district

court's dismissal on this ground. Adelson v. DiPaola, 131 F.3d

259, 262 (1st Cir. 1997).

Exhaustion requires that a petitioner have "fairly

presented to the state courts" his constitutional claim. Picard

v. Connor, 404 U.S. 270, 275 (1971). This requires that the

issue be presented "in such a way as to make it probable that a

reasonable jurist would have been alerted to the existence of

the federal question," Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir.

1994), cert. denied, 513 U.S. 1129 (1995), for example, by

"specific constitutional language, constitutional citation, [or]

appropriate federal precedent . . . ." Nadworny v. Fair, 872

F.2d 1093, 1101 (1st Cir. 1989). By contrast, "a passing
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reference" to a constitutional issue will not preserve it for

habeas review. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.

1988). Exhaustion is a closer issue than either side admits,

but in the end we think that Fortini did adequately present his

federal claim based on Chambers v. Mississippi in the state

appellate courts. The first section in Fortini's brief to the

Massachusetts Appeals Court--attacking the exclusion of the

basketball court episode--was titled, "The Trial Court Violated

The Defendant's State And Federal Constitutional Rights to Due

Process And A Fair Trial By Denying Him The Right To Present

Highly Relevant Evidence." His petition for further appellate

review to the SJC included virtually identical language. 

In addition, the first case cited in the section was

Chambers v. Mississippi. After discussing the factual predicate

for the legal claim, the section concluded with further

citations to Chambers and Webb v. Texas, 409 U.S. 95 (1972) (due

process clause protects defendant's right to present witnesses),

and the assertion that "the exclusion of . . . evidence denied

the defendant a trial in accordance with fundamental standards

of due process." The brief's addendum included the text of the

Fourteenth Amendment, as required by Massachusetts rules for

appeals raising constitutional claims. Mass. R. App. Proc.

16(f).
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In short, Fortini's papers included many of the

"trappings" that we have previously recognized to be central to

presenting a claim. Nadworny, 872 F.2d at 1101; accord Williams

v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993), cert. denied, 510

U.S. 1120 (1994). Admittedly, Fortini's constitutional argument

may have been obscured by his emphasis on Massachusetts cases

that deal with rules of evidence. See Adelson, 131 F.3d at 263.

Nonetheless, we think that the briefs' language and citations

should have alerted the court that a constitutional argument was

also being made. That the Appeals Court did not address the

constitutional issue is not controlling. Pettijohn v. Hall, 599

F.2d 476, 480 n.2 (1st Cir.), cert. denied, 444 U.S. 946 (1979).

We note that Fortini apparently failed to raise the

constitutional claim in the state trial court when he there

urged the admission of the fight evidence. In all likelihood,

the Appeals Court could have refused to consider the due process

argument because it was not pressed in the trial court, see

Commonwealth v. Bibby, 624 N.E.2d 624, 628 (Mass. App. Ct.

1993), although it also had discretion to consider the claim

even if it was not raised earlier, Commonwealth v. Curtis, 632

N.E.2d 821, 825 (Mass. 1994). 

However, the Appeals Court did not purport to reject

the federal constitutional claim on grounds of state waiver law.
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Nor did the federal district court rest on Fortini's failure to

raise the issue at the trial stage. Neither in briefing nor in

oral argument in this court did the state argue that Fortini's

failure to raise the constitutional issue at the trial stage

precludes the argument in federal court. We conclude that the

state has itself waived any objection to the habeas petition

based on Fortini's failure to raise the constitutional issue at

trial. Adelson, 131 F.3d at 263-64.

2. Turning to the merits, Fortini's constitutional

claim presents a difficult issue that cannot be said to be

directly governed by existing Supreme Court precedent. In

Chambers, a state capital murder case, seemingly reliable

hearsay evidence (from several witnesses) of a confession by

someone other than Chambers was excluded at his trial. The

"someone else" was called as a witness but denied being the

culprit, and Chambers' ability to question the "someone else" in

court was severely curtailed by the old-fashion rule limiting

impeachment of one's own witness. The Supreme Court reversed:

it said that in such extreme circumstances, the exclusion of the

evidence violated due process principles. Chambers, 410 U.S. at

302.

Although Chambers unquestionably remains "the law,"

e.g., Crane v. Kentucky, 476 U.S. 683, 690 (1986), the Court has
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rarely used it to overturn convictions and in recent years has

made clear that it can be invoked only in extreme cases. Most

recently, a majority of the Court said that a state law

justification for exclusion will prevail unless it is "arbitrary

or disproportionate" and "infringe[s] upon a weighty interest of

the accused," United States v. Scheffer, 523 U.S. 303, 308

(1998). See also Montana v. Egelhoff, 518 U.S. 37, 53 (1996)

(plurality opinion suggestion that any justification is

sufficient to satisfy due process).

Inevitably, the lower federal courts have tended to

"balance" incommensurate competing interests, taking account of

the importance of the testimony to the defense, its inherent

strength and reliability, and various kinds of countervailing

reasons for excluding it offered by the state. E.g., Pettijohn,

599 F.2d at 480-81. Nevertheless, in cases less powerful than

Chambers, a defendant whose proffer of evidence was rejected for

any conventionally plausible reason or rule usually has an

uphill struggle.

Admittedly, Fortini has a strong argument that the

evidence in question should have been admitted under

conventional evidence rules. To begin, the evidence was

relevant to Fortini's claim of self defense, and here the trial

judge was misled. Although the evidence of the basketball court
4See United States v. Aguilar-Arenceta, 58 F.3d 796, 798

(1st Cir. 1995); Government of the Virgin Islands v. Carino, 631

F.2d 226, 229 (3d Cir. 1980); Commonwealth v. O'Brien, 736

N.E.2d 841, 852 (Mass. 2000); Commonwealth v. Scullin, 687

N.E.2d 1258, 1263 (Mass. App. Ct. 1997).

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episode was certainly not relevant to Fortini's state of mind

(since he did not then know about the fight), it was relevant to

Monterio's state of mind, making it more likely than it would be

without the evidence that Monterio lunged at Fortini, as the

latter claimed. This in turn might have helped Fortini if the

jury had doubts about his story--a key qualification to which we

will return.

Of course, relevant evidence is excluded all the time

where other considerations override relevance. Here, it might

look as if the basketball court incident was merely character

evidence, tending to portray Monterio as a violent man. Such

evidence is commonly excluded by courts because of its

remoteness and tendency to prejudice the jury. Fed. R. Evid.

404; see, e.g., United States v. Varoudakis, 233 F.3d 113, 118-

19 (1st Cir. 2000). But in a federal court, and so far as we

can tell under Massachusetts law, the basketball court incident

was so close in time to the shooting as to suggest that it might

fall within the exceptions that admit (where pertinent) acts

demonstrating state of mind and emotion of the actor, here

Monterio.4
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Prejudice is a different question. Even highly

relevant evidence can be excluded if it is unduly prejudicial.

The evidence in question was certainly prejudicial in the

pertinent sense, that is, it invited the jury to acquit because

it made Monterio out to be a violent and dangerous man of whom

the world was well rid. But the state court did not exclude the

evidence on grounds of undue prejudice and there is no certainty

that it would have done so if it had appreciated the relevance

of the evidence. Nor did the Appeals Court mention prejudice of

this kind.

It might thus be argued that there was no valid

justification invoked for excluding the evidence. The Appeals

Court itself assumed arguendo that the evidence should not have

been excluded. Although the SJC has never squarely addressed

the issue, it is hard for us to see why--assuming relevance--

such bad acts would be categorically inadmissible where offered

to show the state of mind of the victim rather than the state of

mind of the defendant. There is ample precedent elsewhere for

admitting evidence on this theory. E.g., State v. Day, 535

S.E.2d 431, 436 (S.C. 2000); Randolph v. Commonwealth, 56 S.E.2d

226, 231 (Va. 1949).

Yet not every ad hoc mistake in applying state evidence

rules, even in a murder case, should be called a violation of
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due process; otherwise every significant state court error in

excluding evidence offered by the defendant would be a basis for

undoing the conviction. The few Supreme Court cases that

actually undid convictions based on a Chambers analysis involved

far more egregious situations; and the more recent decisions of

the Court we have cited create serious doubts that the Court is

interested in carrying the doctrine beyond egregious cases.

Chambers and Crane both involved highly probative

evidence absolutely critical to the defense, 410 U.S. at 302;

and 476 U.S. at 690; and the third (and last) decision favoring

a defendant, Rock v. Arkansas, 483 U.S. 44, 55 (1987), concerned

a defendant's own right to testify. By contrast, in the present

case the defendant offered direct testimony on the pertinent

issue--whether Monterio lunged at him. The basketball court

incident that was excluded is at best indirect evidence which

does no more than add to existing proof that Monterio was in a

mood to lunge.

Because this case is sufficiently weaker than Chambers,

Crane and Rock, it would be easy to uphold the state court

ruling under AEDPA's ordinary standard for evaluating state

legal determinations, if that standard were applicable. In

habeas proceedings, a federal court is now directed to accept a

state legal ruling unless it is "contrary to, or involved an
5See Smith v. Massey, 235 F.3d 1259, 1264-65 (10th Cir.

2000); Weeks v. Angelone, 176 F.3d 249, 258-59 (4th Cir. 1999);

Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998); cf. Nobles v.

Johnson, 127 F.3d 409, 416 (5th Cir. 1997), cert. denied, 523

U.S. 1139 (1998).

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unreasonable application of, clearly established Federal law, as

determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). The

state says that this rubric governs in the present case, but the

state is mistaken.

AEDPA's strict standard of review only applies to a

"claim that was adjudicated on the merits in state court

proceedings." 28 U.S.C. § 2254(d). Here, the federal claim was

never addressed by the state courts. All of the cases that have

touched on this problem (none is directly in point) assume that

the statute applies only when the state court decided the

federal issue.5 After all, AEDPA imposes a requirement of

deference to state court decisions, but we can hardly defer to

the state court on an issue that the state court did not

address. Cf. Williams v. Taylor, 529 U.S. 362, 402-06 (2000).

Nevertheless, viewing the issue de novo, we conclude

that the exclusion of evidence in question does not rise to the

level of a Chambers violation. The evidence at best lies on the

margin of a blurred line that divides character evidence,

commonly but not always excluded, cf. Fed. R. Evid. 404, from

state-of-mind evidence; the evidence at best does no more than
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increase somewhat the likelihood of a lunge, already the subject

of Fortini's direct testimony; and the risk of unfair prejudice

to the prosecution was real even if many courts would not have

chosen to exclude the evidence on this ground.

It is very difficult to predict the evolution of

Chambers because in over 30 years it has been used by the

Supreme Court only a handful of times to overturn convictions;

and the Supreme Court's standards are quite vague, although

understandably so in a due process matter. Although this is a

close case, exclusion of the evidence does not in our view add

up to the kind of fundamental unfairness that warrants a federal

court in finding a violation of due process. The exclusion in

our view was error but it was not constitutional error.

3. Even if exclusion of the evidence were a

constitutional error, we would find the error to be harmless.

This is itself a close question, turning on the proper standard

for judging harmless error. Still, because the constitutional

"merits" are debatable, it is useful to address this alternative

ground for affirmance.

Because we are assuming constitutional error, it might

at first blush be thought that the error must be harmless

"beyond a reasonable doubt" under Chapman v. California, 386

U.S. 18, 24 (1967). Chapman continues to govern on direct
6Compare Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.),

cert. denied, 121 S. Ct. 627 (2000) (collecting numerous cases

applying Brecht), with Orndorff v. Lockhart, 998 F.2d 1426, 1430

(8th Cir. 1993) (contra), cert. denied, 511 U.S. 1063 (1994).

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appeal (although why a constitutional error should be

intrinsically different than some other kind of serious error is

unclear); but more recently in Brecht v. Abrahamson, 507 U.S.

619, 638 (1993), the Supreme Court adopted a different test for

habeas more favorable to the prosecution, namely, that the error

(constitutional or not) is harmless if it did not have a

substantial and injurious effect or influence on the jury's

verdict.

Brecht's standard could in theory be restricted to

cases in which the state court had itself applied Chapman (so

that Brecht would be an expression of deference to a state

determination). Most circuits, however, have taken the view

that Brecht applies in habeas corpus cases without

qualification.6 One can find the language in Brecht pointing in

both directions, but most of its expression of rationale

suggests that the Brecht test applies in habeas cases regardless

of whether the state court itself made a Chapman harmless error

analysis. See Tyson v. Trigg, 50 F.3d 436, 446 (7th Cir. 1995)

(Posner, C.J.).
7Massachusetts requires a self-defense instruction if the

evidence, seen in the light most favorable to the defendant,

shows that the defendant: (1) had a reasonable belief he was in

imminent danger of death or serious bodily harm; (2) availed

himself of all reasonable means of escape; and (3) used no more

force than reasonably necessary. Commonwealth v. Harrington,

399 N.E.2d 475, 479 (Mass. 1980). "[W]hether a defendant used

all reasonable means of escape before acting in self-defense is

a factual question dependent on a variety of circumstances."

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Assuming that Brecht applies, we do not think that the

excluded evidence in this case would likely have affected the

outcome, but our reasons are different than the harmless error

ruling made by the state Appeals Court. The Appeals Court, it

will be recalled, said that the basketball court incident was

somewhat cumulative and, in any event, could not have altered

the outcome: this was so because, regardless of what happened

on the porch, Fortini undermined his self-defense claim when he

chose to appear on the porch carrying his shotgun and then

failed to go upstairs when he heard whispering on the sidewalk.

The implication of the Appeals Court's reasoning is

that the evidence for Fortini's claim of self-defense was so

weak that the defense should not have been submitted to the jury

or, in the alternative, that no reasonable jury could have

accepted it. But no SJC case law adopts such a view: on the

contrary, the SJC's stress is on the fact-specific character of

the defense and the need for a jury evaluation whenever the

issue is debatable.7 The Appeals Court's reading of state law
Commonwealth v. Pike, 701 N.E.2d 951, 957 (Mass. 1998). Cf.

Commonwealth v. Latimore, 393 N.E.2d 370, 373 (Mass. 1979).

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is usually "trustworthy data" but it is not binding on a federal

court, Losacco v. F.D. Rich Constr. Co., 992 F.2d 382, 384 (1st

Cir.), cert. denied, 510 U.S. 923 (1993), and in this case the

state itself does not defend the Appeals Court's harmless error

reasoning.

Here, Fortini's version of events, which the jury could

have accepted, was that he was encouraged by the police

dispatcher to obtain a license plate or other identification if

the harassing party returned; that he went to the porch without

aggressive intent carrying the shotgun solely for self-defense;

that when he heard the threatening language from Monterio and

heard Monterio's footsteps, he (Fortini) made no effort to shoot

or advance but told Monterio to get off the porch, and that he

fired only after Monterio lunged at him. If it accepted all of

this, a jury might rationally have accepted Fortini's claim of

self-defense.

Nor are we persuaded by the Appeals Court's other

reason for thinking that the fight evidence did not matter,

namely, that it was cumulative of other evidence (his apparent

"drive by" cursing) showing Monterio's aggressive intent on the

night of the incident. It is one thing to yell epithets from a
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passing car; quite another--and far more shocking--to attack

four men who, so far as appears, were engaged in playing

basketball and had done nothing to provoke Monterio. That this

incident occurred only minutes before Monterio appeared on

Fortini's porch makes the evidence even more telling in support

of Fortini's claim.

However, we do think that the exclusion of the fight

evidence was harmless error under Brecht for a quite different

reason. Fortini's only legitimate reason for introducing the

basketball court episode was to back up his own testimony that

Monterio lunged at him, forcing him to fire in self defense.

Our own independent review of the record, Rushen v. Spain, 464

U.S. 114, 120 (1983) (per curiam); Sinnott v. Duval, 139 F.3d

12, 15 (1st Cir. 1998), shows that Fortini's version of what

happened on the porch was subject only to limited challenge by

the state and, far more important, the state's answer to the

self-defense claim did not depend at all on whether Monterio

lunged.

Fortini gave the only direct testimony on whether

Monterio lunged and the state did not cross examine him on the

point. However, the state did raise doubts indirectly: Lopes

testified for the state that Monterio was slowly moving up to

the porch in Fortini's direction when Fortini shot him and a
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state expert, in necessarily speculative testimony, said that a

study of the wounds suggested that Monterio was at some distance

when Fortini fired.

Nevertheless, the state's basic argument to the jury

bypassed the lunge issue. In its opening, the prosecution

conceded that Monterio "may have taken a step" towards Fortini.

In its summation the prosecution never argued that Monterio had

not lunged at Fortini (it again admitted that he took a step

towards Fortini once he saw him with the gun). Instead, it

contended that the shooting was not a "split-second situation"

where Fortini was suddenly at risk and that Fortini had gone

armed to the porch looking for trouble.

The prosecution throughout the proceedings asserted

that Fortini had been angered by Monterio's earlier shouts at

the house; the prosecution offered evidence that he (Fortini)

was openly racist; and it argued that by the time Fortini went

down to the porch he had decided that he wanted to shoot the

perceived troublemakers. The jury's verdict suggests strongly

that it bought this view--not because it had to (the Appeals

Court's position) but because it was an available and plausible

theory to negate self defense and was the only theory actually

argued to it for that purpose.
-24-

It is true that the excluded evidence could have helped

Fortini in a quite different way than as support for Fortini's

lunge testimony. By suggesting that Monterio was a violent and

dangerous individual, it might have encouraged the jury to

acquit Fortini on the ground that Monterio was a wicked man who

ought to be put out of business. But unless the evidence was

necessary to a legitimate defense, this inference would be an

argument for excluding the evidence--not for admitting it. See

Strong, McCormick on Evidence § 190 (5th ed. 1999). However

mistaken under state law, a ruling whose only ultimate effect

was to deprive the defendant of an improper defense is hardly a

basis for granting the writ. Cf. Burks v. DuBois, 55 F.3d 712,

715-16 (1st Cir. 1995).

To sum up, the legitimate use of the evidence would in

our view have had only a very small likelihood of altering the

result. This is not sufficient under Brecht. We could not say

exclusion was harmless "beyond a reasonable doubt" under Chapman

(since the jury might have disregarded the state's argument and

made everything turn on the lunge). But even if the consensus

of the circuits is wrong and Chapman does apply to habeas, we

still think that there was no Chambers violation for reasons

already explained.
-25-

For the reasons stated, the judgment of the district

court is affirmed. Counsel for Fortini is commended for his

very able representation in this difficult case.

It is so ordered.