United States Court of Appeals

For the First Circuit

No. 09-1186

PETER J. SANTIAGO, JR.,

Petitioner, Appellant,

v.

STEVEN O'BRIEN,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

 Boudin, Selya and Stahl,

Circuit Judges.

Donald K. Freyleue for appellant.

Susanne G. Reardon, Assistant Attorney General, Criminal

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

for appellee.

December 22, 2010
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BOUDIN, Circuit Judge. Peter J. Santiago, Jr., appeals

from the denial of his petition for a writ of habeas corpus. At

his state trial for trafficking cocaine, he was prevented from

introducing hearsay testimony arguably favorable to his defense--

namely, a friend's claim that the drugs at issue belonged to the

friend and not Santiago. He now seeks a writ of habeas corpus

premised solely on this alleged violation of his Sixth Amendment

right to present a defense.

On November 28, 1997, state and local police officers

executed a warrant to search Santiago's one-bedroom apartment in

Sunderland, Massachusetts. Inside a closet in the bedroom, they

found two caches of powder cocaine that together weighed more than

a kilogram. The search also revealed various tools of the trade,

including a digital scale (stored next to the drugs), approximately

five hundred small plastic bags, several thousand dollars in cash,

and a ledger containing an apparent record of transactions.

Santiago was indicted and tried in Massachusetts Superior

Court on one count of trafficking in two hundred or more grams of

cocaine. Mass. Gen. Laws ch. 94C, § 32E(b)(4) (2008). His defense

was that the drugs and drug-dealing paraphernalia found in his

apartment belonged to Oley Saradeth--an acquaintance who stayed in

Santiago's apartment from time to time and who died of pneumonia in

the interim between the police raid in November 1997 and the trial

in October 1998. Although Santiago testified that the drugs were
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Oley's, this effort to shift blame was hampered by the trial

court's refusal to admit into evidence a confession Oley

purportedly made to his brother, Fanta Saradeth.

Fanta Saradeth related the putative confession--said to

have been made in a private conversation between the brothers in

December 1997--at a voir dire conducted before trial. Fanta

claimed that Oley took responsibility for the drugs for which

Santiago had been arrested:

Well, [Oley] told me that the drugs that Peter

got arrested for was his, and I was stunned.

I didn't know what to say. And he just told

me that, and then he said a week after he had

been arrested, that he had got pulled over and

been arrested, and he didn't know what to do.

And he said he told him where he had it and

went and got it. And that was it. That's all

he told me. I didn't want to know anymore.

That's all I wanted to know. I didn't want to

have nothing to do with it.

Fanta further testified that "the drugs" referred to an unknown

quantity of cocaine.

On cross-examination, Fanta clarified his statement,

saying that Oley told him that he (Oley) had been stopped in a car

a week before Santiago's arrest; that Oley had drugs in the car

when stopped; and that the police officer who arrested Oley

demanded to know where he had gotten the drugs. Fanta claimed that

Oley answered the officer's question, but Fanta denied knowing what

answer Oley had given. According to Fanta, Oley visited Santiago's

apartment at some point in the week before Santiago's arrest.
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Fanta also testified at the voir dire that on April 27,

1998--the day of his brother's death--Oley, Fanta, and Fanta's

roommate drove together to the hospital. En route, Oley allegedly

asked Fanta to try to get hold of Santiago so that Oley could

apologize. Fanta did not inquire further and assumed that the

apology related back to the earlier claim that Santiago had been

arrested for Oley's drugs. Santiago was prepared to call the

roommate at the voir dire to corroborate Fanta's account of this

conversation.

The trial court excluded both conversations. The

December 1997 admissions by Oley, proffered as statements against

penal interest, were excluded on the grounds that they were not

truly against Oley's penal interest--being made privately to his

brother--and were in any event untrustworthy; the April 1998

apology was excluded on the grounds that it had not been properly

disclosed to the Commonwealth and also was not against Oley's penal

interest when made. It is these rulings that are the subject of

the case now before us.

Ultimately, Santiago was convicted by the jury and

sentenced to fifteen years in state prison. On direct review, the

Massachusetts Appeals Court affirmed, saying: "For substantially

the reasons advanced and the authorities cited in the

Commonwealth's Memorandum of Law in Lieu of Brief at 6-20, we

discern neither error nor abuse of discretion. Judgement
Santiago's efforts to secure post-conviction relief in the 1

state courts were equally unsuccessful. See Commonwealth v.

Santiago, 823 N.E.2d 436 (Mass. App. Ct.) (unpublished table

decision), review denied, 830 N.E.2d 1088 (Mass. 2005).

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affirmed." Commonwealth v. Santiago, 746 N.E.2d 595 (Mass. App.

Ct. 2001) (unpublished table decision). The Supreme Judicial Court

("SJC") denied further appellate review. Commonwealth v. Santiago,

757 N.E.2d 730 (Mass. 2001) (unpublished table decision).1

Santiago then filed a timely petition for a writ of

habeas corpus in federal district court, 28 U.S.C. § 2254 (2006),

challenging the exclusion of Fanta's testimony on the ground that

it violated his rights under the Sixth Amendment to present

witnesses in his defense. On this issue, the district court

ultimately denied relief but granted a certificate of

appealability. Santiago also attacked his conviction on other

grounds, but they were not certified for further review and are not

before us.

Our review of the district court's denial of habeas

relief is de novo. Fortini v. Murphy, 257 F.3d 39, 44 (1st Cir.

2001), cert. denied, 535 U.S. 1018 (2002). Santiago has exhausted

the state remedies available to him for his Sixth Amendment claim,

having presenting it both to the Appeals Court and in his request

for further review by the SJC. See 28 U.S.C. § 2254(b)(1).

Because the Appeals Court decided the claim on the merits, its

legal ruling is also arguably entitled to respect under the
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deferential standard ordinarily entailed by statute--i.e., that the

state court ruling must stand unless contrary to, or an

unreasonable application of, settled Supreme Court precedent, id.

§ 2254(d)(1).

This would be so in this circuit even though the Appeals

Court acted by summary disposition, merely cross-referencing the

arguments in the Commonwealth's brief. See Clements v. Clarke, 592

F.3d 45, 55-56 (1st Cir.), cert. denied, 130 S. Ct. 3475 (2010).

The decision remains one on the merits and the basis is easily

discerned. But, as this view may be affected by a pending Supreme

Court case, Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009), cert.

granted sub nom. Harrington v. Richter, 130 S. Ct. 1506 (argued

Oct. 12, 2010) (No. 09-587), we note that our disposition would be

the same even if we gave no deference whatever to the Appeals

Court.

Santiago spends much of his energy attempting to show

that the exclusion of Oley's statement was error as a matter of

Massachusetts hearsay law. An error of state law standing alone is

not sufficient for habeas relief, Estelle v. McGuire, 502 U.S. 62,

67-68 (1991), nor is it necessary to the federal constitutional

claim. Indeed, the leading Supreme Court precedents holding

evidentiary rulings to be constitutional error tend to arise

precisely where the state court's ruling--whether excluding
See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-32 2

(2009); Davis v. Washington, 547 U.S. 813, 828-32 (2006); Crawford

v. Washington, 541 U.S. 36, 65-68 (2004).

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evidence (as here) or admitting it over defense objection--was

correct under state law.

The more dramatic examples come in the latter domain.

There, under the aegis of the Confrontation Clause, the Supreme

Court has held it to be a constitutional violation to admit against

a defendant certain kinds of inculpating hearsay statements.

Typically the cases involve hearsay that falls within some hearsay

exception but where, nevertheless, the Supreme Court forbids

admission in the particular circumstances--the doctrine is still

evolving--absent a prior opportunity for the defendant to crossexamine the out-of-court declarant.2

The converse problem, presented here, is the exclusion

under state law of exculpatory hearsay that the defendant wants

admitted. These cases turn on due process notions of fairness.

See O'Brien v. Marshall, 453 F.3d 13, 19-20 (1st Cir. 2006). The

locus classicus is Chambers v. Mississippi, 410 U.S. 284 (1973),

where an apparently reliable third-party confession--corroborated

by other evidence and offered to exculpate the accused in a capital

case--was excluded in strict compliance with the state's settled

(but peculiarly rigid) view of the interplay between the "vouching

for your witness" rule and the pertinent hearsay exception for

declarations against penal interest, id. at 288-94.
Lack of reliability is not the only value to be balanced 3

against possible relevance, see, e.g., Michigan v. Lucas, 500 U.S.

145, 149-50 (1991) (protection of victim); Taylor v. Illinois, 484

U.S. 400, 410-11 (1988) (orderly presentation of evidence), but it

is the usual concern in hearsay cases.

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Most Sixth Amendment challenges do not involve such

extreme facts, and the Supreme Court has been cautious about

extending Chambers. See United States v. Scheffer, 523 U.S. 303,

316 (1998); Montana v. Egelhoff, 518 U.S. 37, 52-53 (1996)

(plurality opinion). Not every exclusion of hearsay favorable to

the defendant violates the right to present a defense. Scheffer,

523 U.S. at 316. The Constitution ultimately demands a fair

opportunity to present a defense, and it is generally fair to force

a defendant to comply with established rules of procedure and

evidence and to abide by the balancing of values such rules

represent. Chambers, 410 U.S. at 302.

A central concern of evidence law, and the rule against

hearsay in particular, is with the reliability of evidence--

especially out-of-court statements by one not available for crossexamination. The pattern created by hearsay law and its exceptions

is to exclude such statements save in categories deemed reliable;

and sometimes--even within the category--a statement may be

excluded if untrustworthy, e.g., Fed. R. Evid. 803(6), or not also

shown to be reliable, e.g., Fed. R. Evid. 803(18). 

3

In the present case, Santiago proffered Oley's alleged

December 1997 confession as a statement against penal interest. In
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Massachusetts, a statement against penal interest is not admissible

to exculpate the defendant in a criminal trial unless (i) the

declarant is unavailable; (ii) making the statement "tended so far

to subject the declarant to criminal liability that a reasonable

man in the declarant's position would not have made it unless he

believed it to be true," Commonwealth v. Carr, 369 N.E.2d 970, 973

(Mass. 1977); and (iii) circumstances corroborate the

trustworthiness of the statement. Commonwealth v. Drew, 489 N.E.2d

1233, 1239-41 (Mass. 1986); Carr, 369 N.E.2d at 973-74.

This is a fairly conventional statement of the rule,

closely parallel to the federal version, Fed. R. Evid. 804(b)(3),

and there is no direct claim by Santiago that the rule in the

abstract is unconstitutional. Rather, his focus is on the

application of the rule by the state court to the present facts--

essentially, an "as applied" challenge to the fit between the

generalization and the circumstances. If the state court's

assessment was a reasonable application of a reasonable rule, it

could hardly violate due process standards of fairness.

In excluding the December 1997 confession, the trial

court accepted the Commonwealth's argument that a statement made

only to one's brother is not genuinely against the speaker's penal

interest because the speaker assumes the statement will remain

private; further, the court found that the statement was

uncorroborated by any circumstances indicating its trustworthiness.
E.g., United States v. Barrett, 539 F.2d 244, 251 (1st Cir. 4

1976) (statement to friends over cards); United States v. Goins,

593 F.2d 88, 90-91 (8th Cir.) (statement to daughter in private),

cert. denied, 444 U.S. 827 (1979); 2 McCormick on Evidence § 319,

at 386 n.24 (K. Broun ed., 6th ed. 2006) (collecting cases).

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Whether the first ground (if intended as a blanket statement rather

than a judgment on the particular facts) accords with Massachusetts

law is unclear. Compare Commonwealth v. Marple, 524 N.E.2d 863,

869 (Mass. App. Ct. 1988), with Commonwealth v. Galloway, 534

N.E.2d 778, 781 (Mass. 1989). Elsewhere, statements made in

private--even when the possibility of future disclosure seems

remote--may at least on some facts nevertheless be against penal

interest.4

Yet private statements, even if potentially against penal

interest, are not all the same, and the trial court's grounds of

decision in this case overlap: a private confession to a brother,

where there is nothing to suggest it will become public while the

speaker is alive, is at best minimally "against penal interest" and

certainly not (standing alone) shown to have a further hallmark of

trustworthiness. Here, the supposed confession, as clarified on

cross-examination, is not even a straightforward exculpation of

Santiago. It was surely not shown to be "trustworthy" hearsay.

In the end, Santiago has failed to show that the state

court decision was contrary to, or an unreasonable application of,

clearly established federal law as determined by the Supreme Court;

indeed, as already noted, our decision would be the same even if we
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were considering the issues de novo. For the sake of completeness,

we note two further possible difficulties with petitioner's claim,

although it is unnecessary to resolve either definitively.

First, it could be argued that a further inference of

untrustworthiness might be drawn from the weighty evidence against

Santiago. Santiago's apartment was a one-bedroom unit and had only

a single bed; he told the police that he lived there alone (and

bills, receipts, and other papers confirmed this view); and much of

the cocaine in the apartment was found inside a box in the bedroom

closet addressed to one "Johnny R. Santiago" at Santiago's

apartment number. Santiago's middle name is John.

Santiago says that contradictory trial evidence is not to

be considered in assessing the trustworthiness of a declaration

against penal interest, citing our decision in Barrett, 539 F.2d at

253. But that case says no such thing, and some precedent--in our

court, in Massachusetts courts, and in the Supreme Court--might

suggest the contrary, e.g., Chambers, 410 U.S. at 300-01; United

States v. Millan, 230 F.3d 431, 437 (1st Cir. 2000); Drew, 489

N.E.2d at 1241. Here, the result is the same either way.

Second, even if error was found, the independent strong

evidence that the drugs were Santiago's could be relevant to the

question of prejudice. A constitutional violation, if violation

there were, ordinarily would not merit habeas relief unless it had

"'substantial and injurious effect or influence in determining the
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jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); cf.

Fortini, 257 F.3d at 48. Whether Santiago could establish such

harmful effect is at best doubtful; but we need not decide the

question as we find no error.

Affirmed.