DIAS v. MALONEY

156 F. Supp.2d 104 (2001) | Cited 0 times | D. Massachusetts | August 2, 2001

MEMORANDUM AND ORDER

Gilbert Dias ("Dias") was convicted of second-degree murder in1975 and was sentenced to life in prison. He now petitions thisCourt, pro se, for a writ of habeas corpus pursuant to28 U.S.C. § 2254, claiming that the Commonwealth of Massachusetts isholding him in violation of the Constitution and laws of theUnited States.

I. BACKGROUND

Over the past twenty-five years, numerous state and federalcourts have addressed myriad challenges brought by Dias againsthis conviction. In order to place Dias's current petition incontext, this Court will begin by summarizing what transpired atthese earlier proceedings.

A. Facts

On direct appeal, the Massachusetts Supreme Judicial Courtfully summarized the evidence presented at trial against Dias.This Court adopts that recitation of facts, as is proper absentclear and convincing evidence that casts doubt on the statecourt's determination. See 28 U.S.C. § 2254(e)(1); Hurtado v.Tucker, 245 F.3d 7, 10 & n. 4 (1st Cir. 2001); Avellar v.DuBois, 30 F. Supp.2d 76, 79 (D.Mass. 1998) (Stearns, J.)(citing, inter alia, Sumner v. Mata, 449 U.S. 539, 545-46, 101S.Ct. 764, 66 L.Ed.2d 722 [1981]).

On the evening of March 15, 1974, the victim Gerald Travis (Travis), accompanied by Russell Greene (Greene), and Fernando Mello (Mello), went to a bar, The Republican Club, in Fall River. There the group met another friend, Thomas Wing (Wing). Each of them consumed several beers. In the course of the evening, the young men traveled to another bar where they continued their beer drinking and socializing until closing time, whereupon they proceeded to a third tavern, which had also closed. Not yet ready to call an end to the evening's activities, Mello's companions accepted his invitation to go to Dias's apartment; Mello, the only member of the group acquainted with Dias, had been staying at his apartment for several days prior to March 15.

Though no one was at home, the group entered the apartment, and, while Mello gave Wing and Greene a tour of the premises, Travis retired to the kitchen and began frying eggs and sausages. In the course of their tour, Mello happened on two shotguns leaning against the bureau in Dias's bedroom and a box of shotgun shells atop the bureau. One of the shotguns, from which the parties agree the fatal shot was fired, was capable of firing only once, and then had to be "broken open" to be reloaded. Although noticing that this gun was unloaded, Mello, wary that his friends might engage in horseplay, hid the gun under a couch in the livingroom and put the bullets in Dias's bureau.

Soon after, Dias returned to his apartment in the company of several friends. Except for Dias, no one in the group arriving was acquainted with any member of Mello's party. Dias appeared upset. According to various accounts, this was because he had lost his wallet, because of the unexplained presence of unknown persons who had placed the kitchen in a state of disarray, or because he could not locate his guns. At any rate, Dias found a gun and shells, loaded the gun, and came into the kitchen. He pointed the gun at Greene, and demanded that the premises be vacated.

There was a conflict in the testimony as to what transpired thereafter. Mello, Greene, and Wing, whose accounts essentially coincided, testified that as Dias entered the kitchen the shotgun was in the "closed" position and the hammer was cocked. Greene pushed the barrel of the shotgun away from his face. At the same time, Travis jumped toward Dias, the lights went out momentarily, and Travis was fatally shot.

Michael Sturgeon (Sturgeon), the only defense witness, was in the group which accompanied Dias to the apartment.1 He testified that as Dias came into the kitchen, the shotgun which he was brandishing was in the "broken" position, and thus could not be fired. According to his version, Travis jumped toward Dias, and, grabbing the shotgun by the barrel, tore it from the defendant's hand. Still holding the barrel, Travis swung the shotgun at Dias, attempting to use the butt end as a club. Dias put up his arm to fend off the blow, and, on contact, the shotgun slammed shut and accidentally discharged into Travis's chest area.

Commonwealth v. Dias, 373 Mass. 412, 413-15, 367 N.E.2d 623(1977), available at Resp't's Ex. 5. A more detailed account ofthe facts is found in Dias v. DuBois, No. 93-12566, slip op. at2-7 (D.Mass. Feb. 26, 1996) (Woodlock, J.), available atPet'r's Ex. 18.

B. Prior Proceedings

1. Trial

Dias was indicted on a charge of first degree murder andretained Kenneth Sullivan ("Sullivan"), an experienced anddistinguished criminal lawyer,2 to represent him at trial.Trial was held before the Honorable Vincent Brogna, Justice ofthe Superior Court. Justice Brogna summarized the facts at trialas follows:

The defendant did not testify.

The Commonwealth called a police officer, Edward Mello, who testified that when he and Officer McDonald went to the scene of a reported shooting they were told by three people that the man who shot their friend went into an apartment across the street. Officers Mello and McDonald went to the apartment that had been indicated and found the defendant, with a woman wiping blood off his face. The officers had followed a trail of blood.

Officer Mello was asked:

"Q. Did you initiate any conversation with the defendant?"

A. No, sir.

Q. Did the defendant say anything to you, sir?

A. He just said that he got beat up by some friends.

Q. Did he relate any other incident to you that occurred that night shortly before?

A. No, sir.

Q. Did he relate any shooting?

A. No, sir.

Q. Did he relate any complaints about a disturbance in his apartment?

A. No, sir.

Q. Then what took place?

A. "I took him out of the house and placed him in the cruiser."

The defendant was then transported to the Fall River police station.

Officer Mello testified that there was no conversation with the defendant in the cruiser; and that when they arrived at the police station the defendant was advised of his rights. The defendant was then asked if he would like to make a statement, and he stated that he didn't. There was further conversation, and the defendant did make a statement, which was exculpatory in that he stated that there was a struggle between himself and the victim for the gun, during which struggle it fired into the victim's stomach. He then said that he didn't want to make any more statements until he was advised by an attorney and said that he had been injured and would like to be treated. He was thereupon sent to the Union Hospital.

In his closing argument the Assistant District Attorney, after reciting the evidence relating to the manner in which the Commonwealth alleged the shooting took place, argued as follows:

"Now, everyone scatters, including Mello (not Officer Mello), Wing and Greene. Greene tells us he is outside, he's upset. He told you what he did with Dias. Wing told you what he did with Dias. And Dias runs off to an apartment."

"Ask yourselves this: If you were there that night, and you ran to another apartment and the police came, would you tell them, `I was just beat up'? Would you stop there, knowing that in your apartment someone has been shot, or a bullet was fired? Would you say, `There's been an awful accident in my apartment. This is what happened; somebody has been accidentally shot'. Do you think you might say, `I am okay, go back and see somebody in my apartment, I think he's hurt bad.' And if you don't say that, do you think there's a reason why you don't say that, do you think there's a reason why you don't say that to a police officer?"

Commonwealth v. Dias, No. 48536, slip op. at 1-4(Mass.Super.Ct. Oct. 21, 1980), available at Resp't's Ex. 7.Sullivan did not object to the testimony and argument above, nordid he object to the prosecutor's assertion, in his closingargument, that Dias had stated that he was "going to killsomeone." Pet. at 10-11. In fact, Dias stated that he was goingto kill pigs, not humans. Id.

At the conclusion of the trial, Sullivan took exception to theemphasized jury instructions reprinted below:

[Friday, October 10, 1975.]

THE COURT: . . . . Now, you will decide the case based upon the evidence that you have heard, the exhibits that have been introduced before you. You may use what you saw on the view, and upon the law as I explain it to you.

I think by this time you know that it is your function and yours alone to determine factually what happened. It is your province and yours alone to determine what part — all, or part, or none — of the story that any witness or the opinion of any witness is expressed that you are going to believe and follow. This is your function, not mine.

At the outset, as in every criminal trial, as I told you before, the defendant, Mr. Dias, is presumed innocent. This means that you are to draw no inference against him by reason of the fact that he was arrested, charged with a crime, indicted by a grand jury. As I told you earlier, a grand jury indictment is merely a mechanical procedural way of starting a criminal proceedings.

The presumption of innocence also means that you are to draw no inference against the defendant if he chooses, as here, not to take the stand in his own behalf. He does not have to prove that he is innocent. He does not have to put on any witnesses if he does not want to. The Commonwealth has to prove that he is guilty, and the Commonwealth has to prove it beyond a reasonable doubt.

For example — and I will go into this a little more fully, perhaps, because, as you notice, I don't use any notes in the charge, even in a murder charge, I talk right off the cuff.

What this means is, that the defendant does not have the burden of convincing you that this killing was accidental or that, for example, somebody swung a gun, hit Dias' arm and the gun accidentally went off. He doesn't have to prove that.

The question that you will be asking yourselves eventually after I explain the law to you, is that in view of that testimony, if you believe it, when you weigh it against other evidence in the case, including the medical report, the ballistician's opinion, in view of that, are you convinced that the Commonwealth has proven the crime beyond a reasonable doubt.

And now the words, "beyond a reasonable doubt," are a legal shorthand expression that stands for the degree of certainty that is required in a criminal case, any criminal case, before a jury may convict a person of a crime, any crime.

The words, "beyond a reasonable doubt," do not mean that the Commonwealth has to prove that the defendant is guilty to a mathematical or to an absolute certainty. There would hardly ever be a case that is heard by a jury that there isn't some possibility that the defendant didn't do it.

What it rather means is that after discussing amongst yourselves all the evidence in the case, determining what part — all, none, or part — of the story any witness that you have heard on the stand you are going to believe. Before you may convict a defendant, you must be sure, you must be sure, to a moral certainty that he is guilty.

After reviewing all of the evidence, discussing it thoroughly amongst yourselves, if you have any serious unanswered questions about the defendant's guilt, then by law he must be given the benefit of the doubt and be acquitted.

Now, the indictment, a copy of which you will have in the jury room with you, states that the grand jurors of the Commonwealth on their oath present that Gilbert Dias on or about the 16th day of March, 1974, at Fall River, in the County of Bristol, did assault and beat one Gerald Travis with intent to murder him, and by such assault and beating did kill and murder the said Gerald Travis.

Now, you will notice that nowhere in that indictment are the words, first degree murder or second degree murder.

The reason for that is that there is only one crime of murder. There are two degrees, which vary in their seriousness and in their punishment, as I will explain to you later. But there is only one crime known as murder.

And for the purpose of this case, it is the unlawful taking of the life of another human being with malice aforethought and without sufficient circumstances as to reduce it to manslaughter. I will explain to you later what manslaughter is.

Notice, I said it is the unlawful taking of another human life with malice aforethought. Now again, malice aforethought is another legal shorthand expression that means and stands for this:

Either the specific intention to kill or to do serious bodily injury, or the doing of some act intentionally that we know in our common experience there is a grave likelihood if that act is done that either death or serious bodily injury will result. Again, it is either the specific intention to kill or do serious bodily injury.

An intent is what is in a person's mind — and I will go into that a little more fully — or the doing of an act, the intentional doing of an act which we all know from our common experience is so inherently dangerous that there is a grave likelihood that either death or serious bodily injury will result from the doing of that act.

For example, we know from our common experience that if you take a gun, whether it be a shotgun, rifle, or revolver, or pistol, and you load it, and you aim it at a person or into a crowd, and you pull the trigger, there is a serious likelihood that someone is going to get killed or seriously injured.

The law allows — and notice, I said, allows, — you to infer malice aforethought from the doing of an act, if you find it so, the intentional doing of an act, that we know is so inherently dangerous that a death or serious bodily injury will result.

Notice that I said the law allows you. It does not require you to infer malice aforethought. It allows you to if you, under all the circumstances, wish to.

And now, the crime that I have defined for you is second degree murder. First degree murder in the context of the evidence in the case, is the unlawful killing of a human being with deliberate, premeditated malice aforethought.

In order to convict a defendant of first degree murder, you must first find — and any time I say you must first find or must be convinced, it must be beyond a reasonable doubt — that there was a killing with malice aforethought, either with the specific intention to kill or to do serious bodily injury, or the intentional doing of an act that is so inherently dangerous as the law infers malice aforethought. But that in order to convict on first degree murder, there must be the added elements which the Commonwealth has to prove beyond a reasonable doubt. The Commonwealth has the burden not only of proving the murder, but the degree of murder.

There must be the added element of deliberate premeditation, which means in layman's language, that there must have been an intention formed and thought about, deliberated on, to kill or do serious bodily injury.

Now, there is no time requirement. I can't tell you that for first degree murder a person has to plan for five minutes or ten minutes, or three days, or five seconds. We all know that the human mind acts very rapidly.

But in order to find a person guilty of first degree murder, you must be convinced beyond a reasonable doubt that if it was murder as I explained it to you, that the murder was deliberately premeditated, thought about, for however long or short a period it took the defendant to meditate or to deliberate and to form the intent: I am going to kill or do serious bodily injury.

Again, I have talked about and will be talking about in the charge, about the word, "intent." This is what goes through a person's mind. But it is an element of every crime and must be proven just like anything else.

The way you determine what goes through a person's mind is from what he says or does not say, what he does or does not do. From that, you may infer intent or lack of it.

I have explained to you in general terms the crime of murder and first degree murder. The jury is the one who determines the degree of murder, not I, the District Attorney, or anybody else.

Now, let's attempt, if possible, to put that general definition of murder into the context of the testimony, the evidence that you have heard in this case.

If you are convinced, after reviewing all of the evidence, that the defendant Dias went and got a gun, a shotgun, and loaded it and cocked it, and that from either these or other actions of his he had, for whatever period of time it took him to make up his mind, the intention, that he deliberately premeditated on killing and/or doing serious bodily harm with that gun, and that he did it, the you may — and notice, I say, may — not must — you would be warranted in finding him guilty of first degree murder.

Now, if you are not convinced that there was a sufficient deliberation, a sufficient planning in one's mind to form the intention, a specific intention, to deliberately premeditate and form the thought process, I am going to kill or do serious bodily injury, you may still consider as to whether he is guilty of first [sic] degree murder beyond a reasonable doubt.

You may consider as to whether if it were he who killed the victim — of course, I will go into this later — as to whether there was malice aforethought as I defined that term. Either the specific intention to kill although it may not have been deliberately premeditated upon, or the doing of an act that is so inherently dangerous that we know there is a serious likelihood that either death or serious injury will result. For example, the shooting of a gun in a crowded room.

We all know that if you intend to pull the trigger of a gun you know is loaded, if you know it is loaded, that there is a serious likelihood that someone is going to get seriously hurt or killed.

And if you find that the defendant, again, beyond a reasonable doubt, if you find it, he took a loaded gun and pulled the trigger, whether he was aiming at anybody specifically or not in a crowded room, you may find — notice, I say, may, not must — the requisite malice aforethought to convict him of murder in the second degree.

Now, again, you review all of the evidence. You determine whether or not you are convinced that he went around pointing the gun at people, threatening people, you know, to get them out, what he did or did not do, and determine whether or not he had the requisite malice aforethought, or whether or not you are going to infer the requisite malice aforethought from what he did in order to convict him of second degree murder.

Now, if you are not convinced that the Commonwealth has proven beyond a reasonable doubt either first degree murder or second degree murder as I defined it, inherent in every indictment for murder is the crime of manslaughter.

You see, there are two homicides — one, murder; and the other, manslaughter. Now, if you are not convinced beyond a reasonable doubt that the defendant is guilty of murder, you may ask yourselves, well, is he guilty of manslaughter.

Now, manslaughter in the context of this case, on the evidence, is the involuntary taking of another person's life, where there is no malice aforethought as I defined that term.

If, on the evidence, you are not convinced that there was murder here, but, for example, that you are convinced that the defendant took a gun in a broken position — either broken or unbroken, it doesn't really matter — and without intending that gun to be used in any way, or to do serious bodily injury to anyone; if what he did, if you find that he went into a crowded room with a gun that he knew was loaded, if you find that that was an act of wanton, willful, recklessness without specific malice aforethought, then if the gun kills somebody, you would be warranted in finding him guilty of manslaughter.

On the other hand, if you find that it was not a wanton, reckless act; for example, you are not convinced that what he did was wanton and reckless; for example, if you feel that at most what happened was that he started to walk through the room without any criminal intent, that he was going out to Taunton or wherever else he may have been going, and that a struggle ensued for the gun, that others, including the victim, tried to disarm him, and in the struggle the gun went off accidentally, then he is not guilty of anything.

And again, if you are convinced, — although I repeat to you again that the defendant doesn't have to convince you that the victim grabbed the gun and swung at Dias and hit his arm and it went off and shot him in the stomach, — but of course, if you are convinced that that's what happened, then again, Mr. Dias isn't guilty of any crime.

[Bench conference held.]

MR. SULLIVAN: . . . . You said shooting a gun in a crowded room. Now, that standing by itself, if someone is hurt by shooting a gun in a crowded room, unless there is a felony being committed, is not murder in the first degree or second degree.

THE COURT: It could be murder in the —

MR. SULLIVAN: Well, this is what is confusing. Because my notes indicate, you said shooting a gun in a crowded room.

THE COURT: Into a crowded room. I said that, I think, didn't I?

MR. GARTH [the Prosecutor]: Yes.

MR. SULLIVAN: I got it right down here — shooting a gun in a crowded room.

THE COURT: When I used a "crowded room" thing, I was talking about manslaughter.

MR. SULLIVAN: You didn't get into that.

THE COURT: I said into a crowd. I think I did.

MR. SULLIVAN: Will you correct that?

My exception, then.

EXCEPTION NO. 14

[End of bench conference.]

THE COURT: There is one thing that was pointed out to me that I may not have made clear in the charge, and if not, I will now correct it or try to make it clear now.

In order to convict the defendant Dias of first degree murder, you must be convinced beyond a reasonable doubt that his deliberative premeditation was to kill or do serious bodily injury to Travis, not to anybody else, not in general like I said for murder in the second degree.

You could infer malice aforethought out of shooting, if you wish to, out of shooting a loaded gun at a crowd, at people in general, without the specific intent to hit any specific individual.

For first degree, to find him guilty of first degree murder, you must be convinced, again, beyond a reasonable doubt, that if it was a murder, that he deliberately premeditated to kill or to do serious bodily injury with a gun to Travis.

[The jury recessed at 12:40 p.m.]

[The jury returned at 2:25 p.m.]

THE COURT: Mr. Foreman, and members of the jury. You have asked a question as follows:

"Please clearly designate the distinction between murder in the second degree and manslaughter."

The principal distinction is that murder in the second degree requires that the jury find, again, beyond a reasonable doubt, that there was malice aforethought as I defined that term. And I will redefine it.

If you are convinced that Mr. Dias shot the gun that killed the victim, if you are convinced that when he did it he either had an intention to either kill or do serious bodily injury to someone in that room; or, if you find that, again, beyond a reasonable doubt, that he used a weapon, he had a gun loaded and cocked and ready to fire, and that this is the type of an action that in our common experience we know that whether you intend to kill or not there is a serious likelihood that if the gun is fired, someone in that room is going to get seriously injured or killed, then from those facts, if you find them, the jury may infer malice aforethought. I said, "may," not "must."

What is happening is that the law feels that the use, the intentional use of a dangerous instrument, an instrument that is so dangerous that there is a serious likelihood of serious bodily injury or death, that from that action, if a jury wishes to, it may, because of the seriousness, find that the action was done with malice aforethought.

Now, the word, "malice," as used in that expression, malice aforethought, doesn't mean hatred in the ordinary lay sense. It does not include, for example, you do not have to find that the defendant hated or bore any ill will or malice in its ordinary term toward the victim.

It is a legal expression entirely, that means, as I told you, either a specific intention to kill or do serious bodily injury; or the doing of an act under such circumstances that we know is so serious that it will lead in all probability — that there is a serious likelihood it will lead to either death or bodily injury.

Now, the distinction between murder in the second degree as I have explained it to you and the manslaughter, is that for manslaughter, the element of malice aforethought must be absent, either the specific intent or the inference. You don't have to draw the inference. You may.

The crime of manslaughter in the context of the evidence that you have heard in this case — because there is no other forms of manslaughter here where it would be self-defense or actions under provocation or passion; that is, — in the context of the evidence that you have heard, if you feel that there is no malice aforethought, but that what the defendant did, whatever you find he did, and in the circumstances that he did it, was a wanton, wilful, reckless act but not amounting to malice aforethought, and that as a result of his wanton, wilful, recklessness, a man gets killed, then you may find him guilty of manslaughter.

Have I answered the question? Of course, I want to also point out that if you find it was a pure accident, it was not a wanton, wilful, reckless act; pure accident, or it happened the other way, then he is not guilty of anything.

THE COURT: Are there any exceptions?

MR. SULLIVAN: I take exception to what you said.

THE COURT: Any specific part?

MR. SULLIVAN: No.

THE COURT: Just in general?

MR. SULLIVAN: Yes.

THE COURT: All right, you may have an exception.

EXCEPTION NO. 17

[The jury retired.]

[The jury returned at 6:10 p.m.]

THE COURT: Mr. Foreman, and members of the jury. You have asked another question, as follows:

"The question has come up as to whether the pushing aside of the barrel of the gun, presumably by Greene, constitutes a struggle; and if so, would it be cause to affect the vote as to second degree murder or manslaughter."

I think I will answer that in this way: the pushing [aside] of a gun, if you decide it happened, and/or whether or not there was a struggle, is not the primary issue or the primary question in determining whether the defendant is guilty of second degree murder or manslaughter.

If you remember, I told you that in order to find him guilty of second degree murder, that you must be convinced, again beyond a reasonable doubt, that whatever he did, he did with malice aforethought.

Malice aforethought, as I said, was either the intention, this is up in his mind — not what happened to a gun or didn't happen to a gun — the intention to either kill or do serious bodily injury or the doing of an act, he having a loaded gun and pointing it at people.

That, the law would allow you to infer, because there is a serious likelihood of serious bodily injury or death will result from the use of a gun, that the law would allow you to infer, if you wish, malice aforethought in the mind, in the actions of the defendant.

When you are thinking about a second degree murder, your primary concern should be what he did, not what somebody else did. Your primary concern should be, are you going to infer from or are you going to find from his actions that he either intended to kill or to seriously hurt somebody.

Or are you going to imply that he did by reason of the fact, if you find it to be a fact, that knowing a gun was loaded, he put himself with the gun in a position of pointing at people, and then no matter how the gun goes off, if he had malice aforethought, if you infer malice aforethought from his use of a gun. Whether the gun was pushed aside or not momentarily is not your primary concern.

If you are not satisfied from his actions or saying what he did do or didn't that there was malice aforethought, that he either specifically intended to kill or to seriously hurt somebody, and that if you do not feel that you wish to infer malice aforethought from his use of the gun, then in determining as to whether or not he is guilty of manslaughter, then you determine as to whether what he did was wilful, wanton, or reckless conduct.

And if so, your primary concern should be, is his going into a room with all those people with a gun either cocked or uncocked, or broken or unbroken, is that an act of wilful, wanton, reckless conduct.

Because, you see, if you find that his conduct was not willful, wanton, or reckless, then you can arrive at the question as to how the gun went off, if it went off accidentally, completely accidentally. If you find that he was not guilty of wilful, wanton, reckless conduct, but that there was a tussle of some kind with the gun, including the pushing it aside or the leaping when they were trying to disarm him, if what he did was not wilful or wanton, but that the gun either in a struggle or some other way went off accidentally, it is a not guilty, it is not a manslaughter.

Have I answered your question?

THE COURT: All right, you may go back and resume your deliberations. As a matter of fact, very shortly, we have made arrangements to feed you for supper. So that in about ten minutes, we will be taking you out to eat.

[Bench conference held.]

MR. SULLIVAN: Judge, I think in view of that question, that the case that was recently decided where the Supreme Court says in manslaughter unless the three aspects are present: passion, anger, there is no touching, that if you instruct them that if those elements are absent and there is no touching and it is accidental, it is not guilty.

THE COURT: That case on its facts is not a factual situation which would call here for that type of instruction. I am not going to say any more about it than I already have.

You may have an exception.

EXCEPTION NO. 18

[End of bench conference.]

[The jury retired.]

Resp't's Ex. 2, at 487-514 (emphasis added).

Dias was convicted of second-degree murder at 6:40 p.m. onFriday, October 10, 1975. Id. at 515. On October 14, 1975,Justice Brogna sentenced Dias to the mandatory term of life inprison, id. at 521; Mass.Gen.Laws ch. 265, § 2 (murder), withfifteen years to serve before becoming eligible for parole, id.ch. 127, § 133A (parole).

2. Direct Appeals

Dias, by his attorney Sullivan, filed an appeal of hisconviction in the Appeals Court on October 28, 1975. Resp't's Ex.3, at 5. On August 18, 1976, Sullivan assigned three errors: (i)the trial justice asked questions of a witness and made a remarkthat was prejudicial; (ii) the trial justice improperlyinstructed the jury with respect to the distinction betweensecond-degree murder and manslaughter; and (iii) the trialjustice failed to instruct the jury that if the elements ofpassion and anger are not present and there is no touching,and the killing is accidental, the verdict is not guilty. Id.at 6-7. When Sullivan submitted the brief on Dias's behalf,however, he waived the second and third assignments of error andsubstituted a new issue: Whether the evidence called for theentry of a verdict of a lesser degree of guilt. Id. at 1-2.Through Sullivan, Dias requested that "the Court exercise itspower under General Laws Chapter 278 Section 33E to reduce themurder conviction to manslaughter." Id. at 11. He argued that"[a]n examination of all the facts discloses that there has beena `miscarriage of justice' in convicting the defendant of murderin the second degree, and that a verdict of manslaughter would bemore `consonant with justice,' Commonwealth v. Baker,346 Mass. 107, 109, 190 N.E.2d 555, (1963)." Id.

The Supreme Judicial Court, on its own initiative, ordereddirect appellate review. Commonwealth v. Dias, 373 Mass. 412,413, 367 N.E.2d 623 (1977), available at Resp't's Ex. 5. Withrespect to the issue of allegedly prejudicial questions andremarks by the trial justice, the Supreme Judicial Court heldthat the remarks of the trial justice were not biased, "they wereaimed at developing the most trustworthy testimony and clarifyingfor the jury the witness's testimony." Id. at 417,367 N.E.2d 623. Moreover, any possibly prejudicial effect of the judge'squestioning was overcome through the judge's instruction to thejury that they alone were the finders of fact. Id. With respectto Dias's request under section 33E, the Supreme Judicial Courtexamined all the evidence in the trial; the jury instructions onmurder, manslaughter, and accidental death; and other casespresenting similar factual scenarios and concluded that theverdict of murder in the second degree was appropriate. Id. at417-19, 367 N.E.2d 623.

Dissatisfied with Sullivan, Dias retained new counsel, BarryHaight ("Haight"). See Dias v. DuBois, slip op. at 8-9; Pet. at2; Answer ¶ 15(f). On Dias's behalf, Haight filed a petition inthe Supreme Judicial Court for a writ of error on May 22, 1979,stating as its grounds, "miranda violations and prosecutor'simproper closing arguments." See Form Pet. at 3; Resp't's Ex.6; Dias v. DuBois, slip op. at 9. On June 19, 1980, a singlejustice of the Supreme Judicial Court stayed the petition untilfurther order of the court or until Dias had exhausted otheravailable remedies. Resp't's Ex. 6.

3. Collateral Proceedings

a. First Motion for New Trial

Haight filed a motion for new trial on Dias's behalf on July 7,1980. Id. Ex. 1, at 3. The motion asserted that: (i) a policeofficer's testimony about Dias's custodial statements violatedDias's Miranda rights; (ii) the prosecutor's comments on Dias'ssilence and absence of protestations of innocence at trialinfringed Dias's Fifth Amendment rights; and (iii) the evidencewas insufficient to support finding Dias guilty of second degreemurder. Resp't's Ex. 7, at 4-6; Am. Ans. at 1-2. On October 21,1980, Justice Brogna denied the motion for a new trial. Resp't'sEx. 7, at 1. With respect to the police testimony, Justice Brognareasoned that Dias freely volunteered his statements to thepolice and that the statements were exculpatory. Id. at 5. Withrespect to the prosecutorial comments at trial, Justice Brognareasoned that it was fair for the prosecution to point out to thejury that Dias's voluntary statements to the police were not fulland complete. Id. Justice Brogna did not directly addresswhether there was sufficient evidence to support the conviction,but he noted that the Supreme Judicial Court had affirmed theconviction uponplenary review. Id. at 6-7. Dias did not appeal the denial ofthis motion for a new trial. Id. Ex. 1, at 3A.

b. Second Motion for New Trial

Dias, pro se, filed a second motion for new trial, along with amotion for appointment of counsel, on July 11, 1983. Id.; Diasv. DuBois, slip op. at 10. On September 21, 1983, the SuperiorCourt appointed Armand Fernandes ("Fernandes") to represent Dias.Resp't's Ex. 1, at 4. In his memorandum in support of Dias'smotion for new trial, filed on November 23, 1984, Fernandesraised four issues: (i) the jury charge failed to place theburden of proving malice on the Commonwealth and failed toinstruct the jury that malice must be proven beyond a reasonabledoubt; (ii) the jury charge failed properly to define,distinguish between, and include all lesser charges included inthe greater offense of murder in the first degree; (iii) thejustice gave instructions that forced the jury into a prematureverdict; and (iv) Dias's conviction violated the Constitutions ofthe United States and the Commonwealth of Massachusetts becausethe Commonwealth failed to comply with the court-orderedpsychiatric exam of Dias, or to sustain its burden of showingthat Dias was competent to stand trial. Id. Ex. 8, at 3-4. TheCommonwealth failed to submit a brief in opposition to the secondmotion for new trial. Id. Ex. 9, at 3 n. 1.

Justice Chris Byron granted the second motion for new trial onMarch 22, 1985. Id. Ex. 9, at 8. Justice Byron noted thatbecause all of the issues raised by the second motion for newtrial could have been, but were not, raised in the first motionfor new trial, they were waived under Massachusetts Rule ofCriminal Procedure 30, absent permission from a justice to raisethem in a subsequent motion. Id. at 3. Although Justice Byronallowed Dias to raise all four issues, he only addressed the lastissue because he found it dispositive. Id. at 4. Justice Byronrequired a new trial preceded by a competency hearing, reasoningthat the Commonwealth never proved that Dias was competent tostand trial as required by the Fourteenth Amendment and despite acourt order requiring a competency examination before trial.Id. at 6. In response to Dias's argument that a psychiatricexamination "could have revealed" that Dias lacked the criminalintent to commit murder, however, Justice Byron noted that therecord did not support a finding that Dias was insane at the timeof the murder. Id. at 6-8. Justice Byron concluded that "thecourt is not persuaded that the failure to complete a psychiatricevaluation that might have revealed an insanity defense is aproblem of constitutional magnitude," and rejected Dias'sargument that reversal of the conviction and dismissal of theindictment were warranted. Id. at 8.

On April 17, 1985, Dias filed a claim of appeal and objectionsto the portion of Justice Byron's order that refused to dismissthe indictment and to release him from custody. Id. Ex. 1, at4A; see also id. Ex. 12, at 3. On April 19, 1985, theCommonwealth appealed Justice Byron's order for a new trial.Id. Ex. 1, at 4A; see also id. Exs. 10-11.

On May 10, 1985, the Superior Court ordered a competencyexamination and released Dias on $40,000 bail with surety of$4,000 cash.3 Id. Ex. 1, at 4A. On May 14, 1985, apsychiatrist found Dias competent to stand trial. Id. Ex. 11,at 21-22.

On its own initiative, the Supreme Judicial Court ordereddirect appellate review; affirmed the order declining to dismissthe indictment; reversed the order granting a new trial; andremanded for consideration of the remaining three issues raisedin Fernandes's brief. Commonwealth v. Dias, 402 Mass. 645, 649,524 N.E.2d 846 (1988), available at Resp't's Ex. 13. Withrespect to Dias's competency to stand trial, the court held thatJustice Byron had erred when he focused on Dias's competency atthe time of arraignment — when the trial court ordered acompetency examination — rather than on the time of trial, morethan fifteen months later. Id. at 647, 524 N.E.2d 846. Thecourt noted that neither Dias's trial counsel, Sullivan, nor thetrial justice, ever raised the issue of Dias's competency tostand trial, and that nothing in the trial transcript supportedthe inference that Dias was then incompetent to stand trial.Id.

On remand, Justice Byron summarily rejected the three remainingissues and endorsed a warrant for Dias's return to prison onOctober 25, 1988. Resp't's Ex. 1, at 5A. Dias returned to prisonin Massachusetts in March 1989. Id. Ex. 15, at 1.

Dissatisfied with Fernandes, Dias retained new counsel, LoisLewis ("Lewis"). On September 3, 1992, Lewis filed a petitionrequesting a late appeal on Dias's behalf. Id. Ex. 18. Lewisraised five issues: (i) Dias was denied a speedy trial after hismotion for new trial was granted; (ii) the Appeals Court shouldhave dismissed the Commonwealth's appeal of the order granting anew trial because the Commonwealth failed to pursue the appeal ina timely manner; (iii) Justice Byron should have explained hisreasons for dismissing on remand the three jury-instructionissues raised in the second motion for new trial; (iv) Dias wasnever advised that Justice Byron had denied the remainder of hissecond motion for new trial; and (v) the trial court gaveimproper jury instructions. Id. at 5-6. On January 4, 1993,Justice Greaney of the Supreme Judicial Court denied thispetition. Id. Ex. 21. On July 20, 1993, through Lewis, Diasfiled a motion to clarify whether the appeal had been denied onthe merits or for reasons of procedural default. Id. Ex. 22.The Supreme Judicial Court does not appear to have responded tothis motion to clarify. Id. Ex. 23.

c. Other Court Proceedings

Dias, pro se, filed several other motions and civil actionstangentially related to his second motion for new trial. Upon hisreturn to prison, after the Supreme Judicial Court's reversal ofJustice Byron's order granting a new trial, Dias filed a motionin the Superior Court to correct his sentence to credit him withthe time he had spent out on bail. See Dias v. DuBois, slip op.at 14-15; Resp't's Exs. 24-26. Not long after, Dias filed a civilaction in federal court asserting various civil rights violationsincluding illegal incarceration, cruel and unusual punishment,denial of access to the courts, and denial of access to personalproperty and mail. See Dias v. DuBois, slip op. at 15. Dias'sclaims in both state and federal court were unsuccessful. Seeid. at 15-16; Dias v. Vose, 960 F.2d 143, 1992 WL 83270 (1stCir. Mar.3, 1992) (unpublished table decision); Resp't's Exs. 15,17.

d. First Federal Habeas Petition

Dias, pro se, filed his first federal habeas corpus petition inthe District of Massachusetts in 1993. Judge Woodlock construedthe petition as raising the following claims: (i) violation ofdue process and the right to trial by jury because of erroneousjury instructions; (ii) violation of the privilege againstself-incrimination because ofpolice testimony concerning Dias's post-arrest statement, failureto hold a pre-trial voluntariness hearing, and prosecutorialcommentary on silence; (iii) insufficient evidence to support afinding of second degree murder; (iv) denial of due processthrough the "dynamite" charge, in which the trial justiceencouraged the jurors to return a verdict quickly; (v) denial ofdue process because of the Commonwealth's failure to conduct acourt-ordered psychiatric examination prior to trial; (vi) denialof due process because of the Commonwealth's untimely appeal ofthe order granting a new trial; (vii) denial of the right to aspeedy trial after the order granting a new trial; and (viii)denial of due process because of Dias's return to custody withoutan opportunity to be heard. Dias v. DuBois, slip op. at 17-19.

In a lengthy and thoughtful opinion, Judge Woodlock suggestedthat Dias had a strong claim that the instructions of the trialjustice had improperly relieved the prosecution of its burden ofproving malice aforethought beyond a reasonable doubt, id. at40-41, but he held that Dias had failed to exhaust all of hisstate remedies, especially with respect to his claim ofineffective assistance of counsel, id. at 41-42. Accordingly,the district court characterized Dias's petition as a "mixed"petition that combined exhausted and unexhausted claims anddismissed the petition on February 26, 1996. Id. at 42 (citingRose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379[1982]).

e. Third Motion for New Trial

Dias, pro se, filed a third motion for new trial and anevidentiary hearing in the Superior Court on December 10, 1996.Resp't's Ex. 1, at 5A; id. Ex. 28. He raised five issues: (i)ineffective assistance of counsel by Sullivan; (ii) ineffectiveassistance of counsel by Haight; (iii) ineffective assistance ofcounsel by Fernandes; (iv) improper jury instructions; and (v)due process violations when he was returned to prison withoutrepresentation or an opportunity to be heard, either at the timehe was returned to prison or later on his late appeal. Id. Ex.28, at 1-5; see also id. Ex. 29 (brief in opposition); id.Ex. 30 (brief in reply).

Justice Philip Rivard-Rapoza granted Dias an oral argument onNovember 20, 1997, Pet'r's Ex. 20, but he denied Dias's thirdmotion for new trial on June 16, 1998, Resp't's Ex. 31, at 1. Noevidentiary hearing was held because Dias had failed to provethat there were substantial issues that would merit such ahearing. Id. at 7-8. With respect to Sullivan's effectiveness,Justice Rivard-Rapoza first noted that several issues already hadbeen decided by Justice Brogna on the first motion for new trial,by the Supreme Judicial Court on appeal from the second motionfor new trial, and by Justice Byron on remand from that court:(i) Sullivan's failure to call witnesses; (ii) Sullivan's failureto secure a competency hearing as ordered by the court; (iii)Sullivan's failure to raise the issue of Miranda with the trialcourt; (iv) Sullivan's waiver of a hearing on the voluntarinessof Dias's statements to the police; and (v) Sullivan's failure toraise on appeal the jury instructions on manslaughter. Compareid. at 6, with Resp't's Ex. 28, at 1-2. Justice Rivard-Rapozaheld that only one issue had not been earlier decided: whetherSullivan deprived Dias of the right to testify at his own trial.Id. Ex. 31, at 6. Noting that a defendant's testimonialprivilege is a fundamental right, id. at 10 (citing Harris v.New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 [1971]),Justice Rivard-Rapoza found that the record was devoid of anyevidence supporting Dias's argument that he wanted to testify inhis own defense but was prevented from doing so, id. Withrespectto Haight and Fernandes, Justice Rivard-Rapoza held that theywere not ineffective. Id. at 11-21. With respect to the juryinstructions, Justice Rivard-Rapoza held that the issue hadalready been decided by the Supreme Judicial Court on directappeal, by Justice Byron on remand, and by Justice Greaney on thepetition requesting a late appeal from the second motion for newtrial. Id. at 5-6. With respect to Dias's return to prison,Justice Rivard-Rapoza held that because Dias was simply beingordered to serve a sentence that had been imposed previously, dueprocess did not require that he be represented or heard. Id. at21. As for Justice Greaney's denial of Dias's late appeal,Justice Rivard-Rapoza held that Justice Greaney merely applied avalid rule of state appellate procedure. Id. at 22 (citingMass. R.App.P. 14[B]).

Dias, pro se, appealed the denial of his third motion for newtrial to the Appeals Court around July 1998. Id. Ex. 1, at 6;see also id. Ex. 32 (brief on appeal filed Aug. 17, 1998);id. Ex. 33 (brief in opposition filed Nov. 1998); id. Ex. 34(brief in reply filed Dec. 30, 1998). The Appeals Court deniedDias's appeal on October 28, 1999. Commonwealth v. Dias, No.98-P-1275, slip op. (Mass. App. Ct. Oct. 28, 1999), available atResp't's Ex. 35 [hereinafter Dias III]; see also Commonwealthv. Dias, 48 Mass. App. Ct. 1105, 718 N.E.2d 896 (1999)(unpublished table decision). With respect to the issue of anevidentiary hearing, the Appeals Court deferred to the sounddiscretion of the Superior Court. Dias III, slip op. at 3 n. 3.With respect to Sullivan's effectiveness, the Appeals Courtreviewed each of the issues Dias raised in his motion, includingthe issues that the Superior Court did not address. The AppealsCourt refused to hold that Sullivan's failure to call certainwitnesses constituted ineffective assistance of counsel becauseDias provided no evidence as to what those witnesses would havesaid. Id. at 6-7, 367 N.E.2d 623. With respect to Sullivan'salleged refusal to let Dias testify in his own defense, theAppeals Court held that the Superior Court did not abuse itsdiscretion when it found that Dias failed to support hiscontention with any evidence. Id. at 7, 367 N.E.2d 623. Withrespect to Sullivan's failure to object to the prosecutor'sclosing argument, the Appeals Court ruled that the prosecutor hadnot said anything objectionable and that failure to object couldnot have resulted in a substantial risk of miscarriage ofjustice. Id. at 8, 367 N.E.2d 623. With respect to Sullivan'sfailure to raise the issue of Miranda, the Appeals Court notedthat Justice Brogna, in deciding the first motion for new trial,had ruled that there had been no Miranda violation and thatDias never appealed this decision. Id. at 15-16,490 N.E.2d 1195. With respect to Haight and Fernandes, the Appeals Courtheld that they were not ineffective. Id. at 8-11,490 N.E.2d 1195. With respect to the jury instructions, the Appeals Courtnoted that the Superior Court improperly considered the issuebecause the Supreme Judicial Court had earlier addressed theissue on direct appeal, Justice Greaney had considered the issueon the petition for a late appeal from the second motion for newtrial, and Dias failed to appeal Justice Greaney's decision.Id. at 10-12, 490 N.E.2d 1195. The Appeals Court did, however,examine the jury instructions to see if they created asubstantial risk of a miscarriage of justice, but it concludedthat they did not. Id. at 12-15, 490 N.E.2d 1195. With respectto Dias's return to prison, the Appeals Court agreed with theSuperior Court that because Dias was simply being ordered toserve a sentence that previously had been imposed, due processdid not require him to berepresented or heard. Id. at 16-17, 490 N.E.2d 1195.

Dias applied for further appellate review on November 17, 1999.Id. Ex. 36. The Supreme Judicial Court denied his applicationon January 7, 2000. Id. Ex. 37.

II. PROCEDURAL POSTURE

On April 24, 2000, Dias petitioned this Court for a writ ofhabeas corpus, which permits relief to persons in custody,pursuant to the judgment of a state court, in violation of theConstitution, laws, or treaties of the United States.28 U.S.C. § 2254(a).

A. Applicability of Amendments to Section 2254

The parties have not specifically addressed whether theAntiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),Pub.L. No. 104-132, §§ 101-107, 110 Stat. 1214, 1217-26(reforming habeas corpus statute), applies to the merits of thiscase. The Supreme Court has held that AEDPA is not retroactiveand that it only applies to cases filed after its effective dateof April 24, 1996, Lindh v. Murphy, 521 U.S. 320, 322-23, 117S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Dias's first petition to the District of Massachusetts wasfiled before AEDPA went into effect, but his petition wasdismissed without prejudice for failure to exhaust stateremedies. Dias v. DuBois, slip op. at 41-43. Dias pursued hisstate remedies and then filed the current petition after AEDPAwent into effect. Thus, the Supreme Court has not explicitlyaddressed the question presented in this case: Does AEDPA applyto the second of two related habeas petitions whose filing datesstraddle the effective date of AEDPA?

This Court holds that the current habeas statute, as amended byAEDPA, governs the instant petition, even though Dias's originalpetition was filed in the pre-AEDPA era. Although the FirstCircuit has not addressed this precise question with respect topetitions filed under section 2254, its discussion of ananalogous situation under section 2255 is indistinguishable fromthe facts of this case. See Pratt v. United States,129 F.3d 54, 58-60 (1st Cir. 1997) (applying AEDPA to the second of twopetitions under section 2255 that straddled AEDPA's effectivedate), cited with approval in Libby v. Magnusson, 177 F.3d 43,46-47 (1st Cir. 1999) (holding that petitioner did notobjectively rely to his detriment when he did not file his secondpetition under section 2255 before AEDPA's effective date). Othercourts have explicitly held, as this Court does now, that afederal habeas corpus petition filed after the effective date ofAEDPA is governed by AEDPA even though the petitioner's previousfederal petition was filed before the effective date of AEDPA andwas dismissed without prejudice for failure to exhaust stateremedies. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir.2001); Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir.2000), cert. dismissed, ___ U.S. ___, 121 S.Ct. 902, 148L.Ed.2d 948 (2001); Mancuso v. Herbert, 166 F.3d 97, 101 (2dCir. 1999) (citing, inter alia, Pratt, 129 F.3d at 58).

B. Procedural Bars Under Section 2254

Dias's petition is not barred by any of the new proceduralhurdles that Congress erected in AEDPA. The petition is not"second or successive," 28 U.S.C. § 2244(b)(1), because theearlier petition was dismissed for failure to exhaust stateremedies, Sustache-Rivera v. United States, 221 F.3d 8, 12-13(1st Cir. 2000) (citing Slack v. McDaniel, 529 U.S.473, 485-89, 120 S.Ct. 1595, 146 L.Ed.2d 542 [2000] [construingpre-AEDPA law]), cert. denied, ___ U.S. ___, 121 S.Ct. 1364,149 L.Ed.2d 292 (2001), nor is it untimely,28 U.S.C. § 2244(d)(1), construed in Gaskins v. Duval, 183 F.3d 8, 9 (1stCir. 1999) (creating one-year grace period, from date AEDPA wentinto effect, in which to file section 2254 petitions based onconvictions made final before AEDPA went into effect) because,excluding the time that Dias spent pursuing his third motion fornew trial,4 less than one year has elapsed since AEDPA wentinto effect, id. § 2244(d)(2), construed in Gaskins, 183 F.3dat 9-10 (allowing grace period to be tolled). Furthermore,although this Court may not grant Dias's petition if Diasfailed to exhaust the remedies available to him in state courtover the past twenty-five years, id. § 2254(b)(1)(A), thisCourt may deny Dias's petition on the merits even if he failedto exhaust his state remedies, id. § 2254(b)(2).

C. Standard of Review Under § 2254

1. Claims Adjudicated on the Merits in a State Court

Section 2254 provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) 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.

28 U.S.C. § 2254(d).

The Supreme Court interpreted the meaning of section 2254(d)(1)in Terry Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146L.Ed.2d 389 (2000) (5-4 decision). See Johnson v. Norton,249 F.3d 20, 25-29 (1st Cir. 2001) (applying Terry Williams topetition challenging competence to stand trial); Hurtado v.Tucker,245 F.3d 7 (1st Cir. 2001) (sufficiency of the evidence);Phoenix v. Matesanz, 233 F.3d 77 (1st Cir. 2000) (ineffectiveassistance of counsel); Williams v. Matesanz, 230 F.3d 421 (1stCir. 2000) (jury instructions); O'Brien v. Dubois, 145 F.3d 16,25 (1st Cir. 1998) (anticipating rule set forth in TerryWilliams); Kibbe v. DuBois, 120 F. Supp.2d 114, 118-21 (D.Mass.2000) (Gertner, J.) (granting habeas petition under TerryWilliams standard and questioning O'Brien standard). TheSupreme Court clarified that "clearly established Federal law, asdetermined by the Supreme Court of the United States" refers tothe holdings, as opposed to the dicta, of the Supreme Court'sdecisions as of the time of the relevant state-court decision.Terry Williams, 529 U.S. at 412, 120 S.Ct. 1495. The SupremeCourt also gave independent meaning to the phrases "contrary to"and "unreasonable application of" found in section 2254(d)(1).

A state court decision would be "contrary to" clearlyestablished federal law, as determined by a holding of theSupreme Court, if (i) the state court applied a rule thatcontradicted the governing law set forth in the Supreme Court'scases or (ii) the state court confronted a set of facts that wasmaterially indistinguishable from a decision of the Supreme Courtand yet arrived at a result different from the Supreme Court'sprecedent. Id. at 405-06, 120 S.Ct. 1495. In contrast, a statecourt decision applying the correct legal rule set forth in theSupreme Court's cases would not be "contrary to" clearlyestablished federal law. Id. at 406, 120 S.Ct. 1495.

A state court decision would involve an "unreasonableapplication of" clearly established federal law, as determined bya holding of the Supreme Court, if the state court identified thecorrect governing legal principle from the Supreme Court'sdecisions but unreasonably applied that principle to the facts ofthe prisoner's case. Id. at 413, 120 S.Ct. 1495. Anunreasonable application of federal law is different from anincorrect application of federal law. Id. at 410, 120 S.Ct.1495. The test is not whether reasonable jurists would allagree that the state court's application of federal law wasunreasonable, id. at 409-10, 120 S.Ct. 1495, because that wouldbe too subjective; rather, the inquiry should be whether thestate court's application of federal law was objectivelyunreasonable, id. at 410, 120 S.Ct. 1495.

The meaning of section 2254(d)(2) necessarily turns on section2254(e)(1), which presumes that factual determinations by a statecourt are correct. In other words, a petition for habeas corpuscannot be granted on the basis of section 2254(d)(2) unless thefederal court first holds that the state court's factualdeterminations were incorrect pursuant to section 2254(e)(1), asdiscussed below.

2. Facts Determined by a State Court

Section 2254 provides:

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e).

The First Circuit interpreted the meaning of section 2254(e)(1)in Coombs v. Maine, 202 F.3d 14 (1st Cir. 2000). For purposesof section 2254(e)(1), "factual issues' are defined as `basic,primary, or historical facts: facts in the sense of a recital ofexternal events and the credibility of their narrators.'" Id.at 18 (quoting, inter alia, Townsend v. Sain, 372 U.S. 293, 309n. 6, 83 S.Ct. 745, 9 L.Ed.2d 770 [1963], overruled in part onother grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct.1715, 118 L.Ed.2d 318 [1992]); accord Thompson v. Keohane,516 U.S. 99, 109-10, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).

The Supreme Court interpreted the meaning of section 2254(e)(2)in Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479,146 L.Ed.2d 435 (2000) (9-0 decision). See Fryar v.Bissonnette, 113 F. Supp.2d 175, 178 (D.Mass. 2000) (Ponsor, J.).The Supreme Court held that a failure to develop the factualbasis of a claim is not established unless there is lack ofdiligence, or some greater fault, attributable to the prisoner orthe prisoner's counsel. Michael Williams, 529 U.S. at 432, 120S.Ct. 1479. In other words, "failed to develop" means more than"did not develop." The purpose of the fault component of "failed"is to ensure that the prisoner undertakes his own diligent searchfor evidence. Diligence for purposes of the opening clausedepends upon whether the prisoner made a reasonable attempt, inlight of the information available at the time, to investigateand pursue claims in state court; it does not depend upon whetherthose efforts could have been successful. Id. at 435, 120 S.Ct.1479.

3. Ineffective Assistance of Counsel

Section 2254 provides:

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

28 U.S.C. § 2254(i).

D. Request for an Evidentiary Hearing

Dias requests an evidentiary hearing in this Court, apparentlyto develop his claim of ineffective assistance of counsel. Asdiscussed below, infra pp. 51-60, Dias complains that hiscounsel (i) failed to call witnesses, (ii) denied Dias the rightto testify, (iii) failed to object to the prosecutor's closingargument, and (iv) failed to raise issues on appeal. Undersection 2254(e)(2), evidentiary hearings in federal court arerarely appropriate. Here, an evidentiary hearing would beinappropriate with respect to the third and fourth issues —whether counsel failed to object at trial or failed to raiseissues on appeal — because those issues do not turn on "facts""in the sense of a recital of external events and the credibilityof their narrators," Coombs, 202 F.3d at 18, and thus can beevaluated on the basis of the written record. Nor would anevidentiary hearing be appropriate with respect to the secondissue — whether counsel denied Dias the right to testify —because a state court determined that factual issue and Diascannot rebut the presumption of that determination's correctnessby clear and convincing evidence. 28 U.S.C.§ 2254(e)(1). With respect to the first issue — counsel's failureto call witnesses — Dias might be able to escape the strictrequirements of section 2254(e)(2) because he tried, withoutsuccess, to obtain an evidentiary hearing on this issue on histhird motion for new trial. Resp't's Ex. 31, at 7-8.Nevertheless, Dias cannot escape a more fundamental problem: Hefails to allege facts which, if proved, would entitle him torelief.5 Stouffer v. Reynolds, 168 F.3d 1155, 1168 (10thCir. 1999) (quoting Townsend, 372 U.S. at 312, 83 S.Ct. 745).In other words, taking the facts alleged by Dias as true, thisCourt may evaluate counsel's failure to call witnesses as matterof law, Thompson, 516 U.S. at 111, 116 S.Ct. 457 (citingStrickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052[1984]), thus rendering an evidentiary hearing unnecessary. Cf.United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993)(placing burden on petitioner under section 2255 to establishneed for evidentiary hearing); Perron v. Perrin, 742 F.2d 669,671-72 (1st Cir. 1984) (holding that evidentiary hearing undersection 2254 was unnecessary).

III. DISCUSSION

Dias originally based his petition on nine enumerated issues,Pet. at 15-17 [hereinafter Issues I-IX]; Pet'r's SupplementalMem. at 1 (citing Apprendi v. New Jersey, 530 U.S. 466, 120S.Ct. 2348, 147 L.Ed.2d 435 [2000]) [hereinafter Issue VII],which the respondent has broken into fifteen distinct claims, Am.Answer at 7-8 [hereinafter Claims 1-15]. In his form petition,Dias relied on five grounds. Form Pet. at 5 [hereinafter Grounds(e), (f), (g), (i), (j)]. Construing the pro se petitionliberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,30 L.Ed.2d 652 (1972) (per curiam); Raineri v. United States,233 F.3d 96, 97 (1st Cir. 2000), this Court organizes the claimsas follows, roughly based on chronology:

A. The Commonwealth denied Dias equal protection and due process when it failed to examine his competency to stand trial, as ordered by the Superior Court. Issue IX; Claim 15.

B. The prosecutor denied Dias his Fifth Amendment rights when he introduced police testimony at trial concerning Dias's post-arrest statement, in violation of Miranda, and when he commented during closing arguments on Dias's statements to the police. Issue VI; Claim 9; Ground (e).

C. The Superior Court denied Dias the right to a fair trial by giving improper jury instructions. Issue VII; Claims 11-13.

D. Trial counsel, Sullivan, deprived Dias of effective assistance, Ground (i), when he:

1. failed to investigate the witnesses and evidence prior to trial, Issue II(b);

2. failed to call eye-witnesses and a paid expert at trial in defense of Dias, Issue II(a); Claim 2-3;

3. failed to allow Dias to testify in his own defense at trial even though Dias informed trial counsel that he wanted to testify, Issue II(c); Claim 4; and

4. failed to object to the prosecutor's closing argument at trial, Issue II(d); Claim 5; and

5. waived constitutional issues (apparently on direct appeal), without Dias's consent, that were properly objected to during trial (apparently regarding the jury instructions), Issue II(e)-(f); Claim 6.

E. With respect to Dias's second motion for new trial:

1. The Appeals Court denied Dias equal protection and due process when it allowed the Commonwealth to file an untimely appeal to the allowance of the second new trial motion. Issue VI(a); Claim 10.

2. The Superior Court denied Dias a speedy trial once it ordered a new trial. Issue VIII; Claim 14.

3. When the Superior Court returned Dias to prison following the reversal of the second motion for new trial, the Superior Court denied Dias:

a. due process by failing to secure Dias's presence, Issue IV; Claim 8;

b. due process by failing to provide Dias with counsel, Issue IV(a); Claim 8; and

c. the right to confrontation by holding a hearing outside his presence, Issue V; Claim 8.

4. "Appellate counsel" deprived Dias of effective assistance when he waived constitutional issues (apparently after the second motion for new trial was denied), without Dias's consent, that were properly objected to during trial (apparently regarding the jury instructions). Issue II(e)-(f); Claim 7.

5. The Supreme Judicial Court denied Dias equal protection when it denied Dias the right properly to appeal the decision of the Superior Court. Issue III; Claim 7; Ground (j).

F. The motion justice denied Dias equal protection when he failed to hold an evidentiary hearing (apparently on Dias's third motion for new trial). Issue I; Claim 1.

In his form petition, Dias checked a box indicating that hisconviction was "obtained by the unconstitutional failure of theprosecution to disclose to the defendant evidence favorable tothe defendant," Ground (f), and he also checked a box indicatingthat his conviction was "obtained by a violation of theprotection against double jeopardy," Ground (g). Dias providesthis Court with absolutely nothing in support of these two claimsand never raised the issue of Brady v. Maryland, 373 U.S. 83,83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or the issue of doublejeopardy in state court.6 Thus, this Court will not discussGrounds (f) and (g) further.

A. Dias's Competence to Stand Trial

The Supreme Judicial Court adjudicated Dias's competence tostand trial. Thus, this Court must review its decision pursuantto section 2254(d), as construed by Terry Williams. The SupremeJudicial Court held:

It appears that [Justice Byron on the second motion for new trial] viewed the arraignment judge's order [requesting a competency examination] as creating a substantial question of lack of competence at the time of trial which could be rebutted only by the hearing and findings required by G.L. c. 123, § 15. We disagree that the facts of this case and the relevant law warrant such a conclusion and, therefore, conclude that the order granting a new trial was an error of law. See Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986).

The defendant was arraigned in June, 1974. The reasons for the arraignment judge's order do not appear in the record, but we assume the existence of "a substantial question of possible doubt" at that time. Commonwealth v. Crowley, 393 Mass. [393, 399, 471 N.E.2d 353 (1984) (quoting Rhay v. White, 385 F.2d 883, 886 [9th Cir. 1967])]. However, the defendant was tried more than fifteen months later. Nothing in the record of that trial indicated that, in October, 1975, he lacked "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and . . . a rational as well as factual understanding of the proceedings against him.'" Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). At no point did the trial judge's "observations of the defendant's demeanor and behavior at the trial," Commonwealth v. Crowley, supra at 399, 471 N.E.2d 353, lead him to question the defendant's competence. Most significant in the context of the instant case, the defendant's trial counsel raised no issue concerning the defendant's conduct and mental condition. Contrast id. at 394, 471 N.E.2d 353.

We stress again that "the test set out in Dusky is concerned with present abilities. . . . [T]he question is whether [the defendant] was competent to stand trial at the actual time of trial" (emphasis added). Commonwealth v. Kostka, 370 Mass. 516, 522, 350 N.E.2d 444 (1976). The apparent failure to hold a hearing contemporaneously with his arraignment is not, in and of itself, a sufficient ground for concluding that a substantial question of doubt as to his competency existed at the time of trial. Cf. Commonwealth v. DiMinico, 375 Mass. 676, 377 N.E.2d 959 (1978). As we said with regard to G.L. c. 123, § 100A, as amended by St. 1927, c. 59, the predecessor statute to G.L. c. 123, § 15, "noncompliance with the provisions of [the statute] does not invalidate the trial as matter of law." Commonwealth v. Vallarelli, 273 Mass. 240, 249, 173 N.E. 582 (1930).

Commonwealth v. Dias, 402 Mass. at 647-48, 524 N.E.2d 846. Diasdoes not present clear and convincing evidence that the factsrecited by the Supreme Judicial Court are incorrect,28 U.S.C. § 2254(e)(1); see also id. § 2254(d)(2), leaving only thequestion whether the decision was "contrary to" or involved an"unreasonable application of" clearly established federal law, asdetermined by a holding of the Supreme Court, id. § 2254(d)(1).

The decision of the Supreme Judicial Court was not "contraryto" clearly established federal law. Dusky v. United States,362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam),still provides the correct test for determining competency tostand trial. See Cooper v. Oklahoma, 517 U.S. 348, 354, 116S.Ct. 1373, 134 L.Ed.2d 498 (1996). After the Supreme Courtdecided Dusky, but before the Supreme Judicial Court issued itsdecision on the matter of Dias's competence in 1988, the SupremeCourt issued two other opinions on the question of competency tostand trial, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 86S.Ct. 836, 15 L.Ed.2d 815 (1966). These two cases neither affectthe rule set forth in Dusky nor present a set of factsanalogous to the facts presented to the SupremeJudicial Court, however. In particular, both Drope andRobinson involved a situation in which the competency of thedefendant was questioned in front of the judge at the time oftrial. Drope, 420 U.S. at 165-66, 95 S.Ct. 896; Robinson, 383U.S. at 376-77, 86 S.Ct. 836. Thus, the decision of the SupremeJudicial Court was not "contrary to" clearly established federallaw, as determined by the holdings of the Supreme Court. TerryWilliams, 529 U.S. at 405-06, 120 S.Ct. 1495.

Nor did the decision of the Supreme Judicial Court involve an"unreasonable application of" clearly established federal law.The opinion of the Supreme Judicial Court emphasized that thetest set forth in Dusky is concerned with present abilities.The Supreme Judicial Court supported this proposition by citingDusky and Commonwealth v. Kostka, 370 Mass. 516, 522,350 N.E.2d 444 (1976), which in turn cites Robinson, 383 U.S. at387, 86 S.Ct. 836. Both Dusky and Robinson focus on adefendant's cognitive abilities at the time of trial. SeeJohnson, 249 F.3d at 27-28. This Court cannot say that it wasobjectively unreasonable for the Supreme Judicial Court to do thesame, Terry Williams, 529 U.S. at 410, 120 S.Ct. 1495.

B. Dias's Fifth Amendment Rights

According to the Massachusetts Appeals Court, Dias waived hisFifth Amendment claims when he failed to file an appeal ofJustice Brogna's decision on the first motion for new trial. SeeDias III, slip op. at 15-16; see also Phoenix, 189 F.3d at 24(looking to "last reasoned opinion" of state court to determineexistence of independent and adequate state procedural rule[citing Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590,115 L.Ed.2d 706 (1991)]). "In all cases in which a state prisonerhas defaulted his federal claims in state court pursuant to anindependent and adequate state procedural rule, federal habeasreview of the claims is barred unless the prisoner candemonstrate cause for the default and actual prejudice as aresult of the alleged violation of federal law, or demonstratethat failure to consider the claims will result in a fundamentalmiscarriage of justice." Coleman v. Thompson, 501 U.S. 722,750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), cited with approvalin Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587,146 L.Ed.2d 518 (2000).

"[C]ause for a procedural default must ordinarily turn onwhether the prisoner can show that some objective factor externalto the defense impeded counsel's efforts to comply with theState's procedural rule," although ineffective assistance ofcounsel would also constitute cause. Murray v. Carrier,477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), quotedwith approval in Strickler v. Greene, 527 U.S. 263, 283 n. 24,119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice requires theprisoner to convince the court that "there is a reasonableprobability that the result of the trial would have beendifferent," Strickler, 527 U.S. at 289, 119 S.Ct. 1936; "[t]hequestion is not whether the defendant would more likely than nothave received a different verdict with the evidence, but whetherin its absence he received a fair trial, understood as a trialresulting in a verdict worthy of confidence," id. at 289-90,119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435,115 S.Ct. 1555 [1995]) (internal quotation marks omitted); seealso Prou v. United States, 199 F.3d 37, 49 (1st Cir. 1999)(holding that defendant established cause and prejudice).

Dias presents no cause for his procedural default. Nor can herely on Haight's allegedly ineffective assistance as the causefor his failure to appeal from thecollateral post-conviction proceeding before Justice Brogna.See 28 U.S.C. § 2254(i); Coleman, 501 U.S. at 752-53, 111S.Ct. 2546. Thus, this Court need not consider whether Dias wasprejudiced by the alleged Fifth Amendment violations.Furthermore, this Court's failure to consider the Fifth Amendmentclaims will not result in a fundamental miscarriage of justicebecause Dias cannot show actual, as opposed to legal, innocence,to wit, that it is more likely than not that no reasonable jurorwould have found him guilty beyond a reasonable doubt. Schlup v.Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808(1995) (applying standard of Murray, 477 U.S. at 495-96, 106S.Ct. 2639, to petitions alleging constitutionally-erroneousconviction), cited with approval in Simpson v. Matesanz,175 F.3d 200, 210 (1st Cir. 1999), cert. denied, 528 U.S. 1082, 120S.Ct. 803, 145 L.Ed.2d 677 (2000). Thus, Dias cannot raise hisFifth Amendment claims in this Court.

C. Dias's Right to Proper Jury Instructions

Judge Woodlock's pre-AEDPA opinion in Dias v. DuBoiscarefully analyzed both the jury instructions and the assistanceof counsel at Dias's trial and concluded that both raised seriousquestions. In response to Judge Woodlock's opinion, Dias filed athird motion for new trial based on the jury instructions and theassistance of counsel. According to the Massachusetts AppealsCourt, however, Dias waived his jury instruction claims when hefailed to appeal Justice Greaney's decision rejecting theapplication for a late appeal from Justice Byron's decision onthe second motion for new trial. See Dias III, slip op. at10-15 (citing, inter alia, Hicks v. Comm'r of Corr.,425 Mass. 1014, 1015, 681 N.E.2d 274 [1997]). Although the Appeals Courtreviewed the jury instructions to see if they created asubstantial risk of a miscarriage of justice, id. at 12-15,"[t]he mere fact that a state appellate court engages in adiscretionary, and necessarily cursory, review under a`miscarriage of justice' analysis does not in itself indicatethat the court has determined to waive an independent stateprocedural ground for affirming the conviction," Tart v.Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991), cited withapproval in Simpson, 175 F.3d at 209. Furthermore, a review ofthe Appeals Court decision reveals that it does not "fairlyappear [] to rest primarily on federal law." Coleman, 501 U.S.at 734, 735, 111 S.Ct. 2546. Thus, for the reasons stated in thisCourt's review of Dias's Fifth Amendment claims, Dias cannotraise his jury instruction claims in this Court or rely on theallegedly ineffective assistance of Fernandes or Lewis as thecause for his failure either timely to appeal Justice Byron'sdecision or to appeal Justice Greaney's decision.

D. Dias's Right to Effective Assistance of Counsel

To the extent that Dias complains about Haight, Fernandes, orLewis, this Court cannot grant relief on the basis of theirineffectiveness. 28 U.S.C. § 2254(i). This Court may onlyconsider the alleged ineffectiveness of Sullivan at trial, U.S.Const. amend. VI, and on appeal, Evitts v. Lucey, 469 U.S. 387,105 S.Ct. 830, 83 L.Ed.2d 821 (1985), assuming Dias has notprocedurally defaulted, Edwards, 529 U.S. at 450-51, 120 S.Ct.1587 (holding that claim for ineffective assistance of counselmay be procedurally defaulted even if the ineffective assistancewas the "cause" for another procedurally defaulted claim).

Because the Massachusetts Appeals Court adjudicated Dias'sclaim that Sullivan was ineffective at trial and on appeal, thisCourt must review the AppealsCourt's decision pursuant to section 2254(d), as construed byTerry Williams. The Appeals Court held:

1. Ineffective assistance of counsel. Dias could have raised in prior proceedings the issues presented in his third motion for new trial. When a defendant fails to timely raise a claim, the claim is waived. Commonwealth v. Amirault, 424 Mass. 618, 639, 677 N.E.2d 652 (1997). However, if the failure to raise a claim is due to ineffective assistance of counsel, the claim is preserved. Ibid. Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 17-18, 490 N.E.2d 1195 (1986). Because Dias structures most of his claims in the guise of ineffective assistance of counsel, i.e., in his lawyers' failure to pursue issues on appeal and in collateral proceedings, we cannot summarily conclude that Dias has waived these claims.

Although Dias claims ineffective assistance under both art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment of the United States Constitution, we examine his claims only under the State standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), because if that test is met, the Federal test is met as well. See Commonwealth v. Hurley, 391 Mass. 76, 81, 461 N.E.2d 754 (1984) (art. 12 provides greater safeguards against ineffective assistance than Bill of Rights); Commonwealth v. Cardenuto, 406 Mass. 450, 454 n. 8, 548 N.E.2d 864 (1990). We judge the performance of counsel, both trial and appellate, by whether "there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defen[s]e." Cardenuto, supra at 453-454, 548 N.E.2d 864, quoting from Saferian, supra at 96, 315 N.E.2d 878. See Commonwealth v. Richard, 398 Mass. 392, 393, 496 N.E.2d 1366, cert. denied, 479 U.S. 1010, 107 S.Ct. 654, 93 L.Ed.2d 709 (1986) ("there ought to be some showing that better work might have accomplished something material for the defense," quoting from Cepulonis v. Commonwealth, 384 Mass. 495, 502, 427 N.E.2d 17 [1981], appeal dismissed, 455 U.S. 931, 102 S.Ct. 1416 [1982]).

Where, as here, however, a defendant in a collateral proceeding claims ineffective assistance of counsel after plenary review under G.L. c. 278, § 33E, we review alleged omissions of counsel to see whether they present a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4, 632 N.E.2d 821 (1994) ("if an omission of counsel does not present a substantial risk of a miscarriage of justice . . . there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution"); Amirault, supra at 640-641, 652 n. 24, 677 N.E.2d 652 (same)

(a) Ineffective assistance of counsel at trial. We note that Dias should have claimed ineffectiveness of trial counsel in his first motion for a new trial7; however, Dias suggests, albeit unclearly, that his attorney on his first new trial motion was ineffective in failing to claim ineffective assistance of trial counsel. In view of this extended litigation, see Commonwealth v. DeChristoforo, 371 Mass. 26, 33, 353 N.E.2d 769 (1976), and because claims against Dias's later counsel necessarily depend on whether trial counsel was ineffective, we review trial counsel's performance. See Breese v. Commonwealth, 415 Mass. 249, 252, 612 N.E.2d 1170 (1993).

(i) Failure to call witnesses. Dias claims that his trial counsel should have investigated and procured Cora Myers, George Souza, and Michael Costa as potential witnesses. However, there is no showing in the record before us as to the substance of the testimony Dias sought from these individuals. Thus, we cannot conclude that trial counsel's failure to procure these witnesses resulted in a substantial likelihood of a miscarriage of justice.8 See Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30, 627 N.E.2d 941 (1994) (defendant's failure to append new trial motion affidavits of potential witnesses precluded motion judge from ruling on ineffective assistance claim).

(ii) Denial of Dias's right to testify. Dias asserts that his counsel deprived him of the right to testify in his own defense. See Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Counsel allegedly informed Dias that in light of the medication Dias was then taking, it was best that he not testify. The third new trial motion judge rejected Dias's claim, which Dias has not raised in any other postconviction proceedings, because he found that there was no evidence that Dias wished to testify or that his decision to forego testifying was unknowing or involuntary. Given that Dias's testimony would have been cumulative of other evidence, he concluded that denying the new trial motion would not likely result in a miscarriage of justice. We cannot say that the motion judge abused his discretion.

(iii) Failure to object to closing argument. Dias contends that his attorney's failure to object to the prosecutor's statements in his closing that Dias had stated he was "going to kill someone" constituted ineffective assistance.9 However, in four of the five references that Dias finds objectionable, the prosecutor did not simply state that Dias had said he was "going to kill somebody," but instead correctly related that Dias had said he was going to kill a pig. The last reference relied upon by Dias, which is the last in sequence, is the only comment omitting specific mention of a pig. Even if failure to object to this could be deemed ineffective assistance of counsel, such failure to object could not have resulted in a substantial risk of a miscarriage of justice where the jury had heard the evidence and the prosecutor's four previous comments accurately referenced a pig.

(b) Ineffective assistance of counsel on direct appeal. Dias claims that his counsel on direct appeal, who also represented Dias at trial, should have raised specific objections to the jury charge. However, the Supreme Judicial Court found no error in the instructions in its review under G.L. c. 278, § 33E, and review under this provision is more favorable to a defendant than review under the State and Federal standards for ineffective assistance of counsel. See Commonwealth v. Wright, 411 Mass. 678, 681-682, 584 N.E.2d 621 (1992); Commonwealth v. Parker, 420 Mass. 242, 246 n. 5, 649 N.E.2d 727 (1995). Dias cannot now succeed on review under a less favorable standard.

Dias III, slip op. at 4-8.

The Appeals Court's decision was not "contrary to" clearlyestablished federal law. The test for ineffective assistance ofcounsel was, and still is, set forth in Strickland v.Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687, 104 S.Ct. 2052.

To establish ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id., at 688, 104 S.Ct. 2052. To establish prejudice he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694, 104 S.Ct. 2052.

Terry Williams, 529 U.S. at 390-91, 120 S.Ct. 1495. Althoughthe Appeals Court did not cite Strickland directly, it citedCommonwealth v. Wright, 411 Mass. 678, 584 N.E.2d 621 (1992),and Commonwealth v. Cardenuto, 406 Mass. 450, 548 N.E.2d 864(1990), which in turn cite Strickland and state that theplenary review standard under section 33E of MassachusettsGeneral Laws chapter 278, and the standard for ineffectiveassistance of counsel set forth in Commonwealth v. Saferian,366 Mass. 89, 96, 315 N.E.2d 878 (1974), are at least asfavorable to a defendant as the Strickland test. Wright, 411Mass. at 681-82, 584 N.E.2d 621; Cardenuto, 406 Mass. at 454 n.8, 548 N.E.2d 864. Thus, the Appeals Court did not apply a rulethat contradicts the governing law set forth by the SupremeCourt. Terry Williams, 529 U.S. at 405, 120 S.Ct. 1495. Afterthe Supreme Court decided Strickland, but before the AppealsCourt issued its decision in 1999, the Supreme Court applied theStrickland test in ten cases. See Lockhart v. Fretwell,506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Coleman v.Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991);Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956(1991) (per curiam); Burger v. Kemp, 483 U.S. 776, 107 S.Ct.3114, 97 L.Ed.2d 638 (1987); Smith v. Murray, 477 U.S. 527, 106S.Ct. 2661, 91 L.Ed.2d 434 (1986); Murray v. Carrier,477 U.S. 478, 106 S.Ct. 2574, 91 L.Ed.2d 397 (1986); Kimmelman v.Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 397 (1986);Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d144 (1986); Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89L.Ed.2d 123 (1986); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct.366, 88 L.Ed.2d 203 (1985). In Dias III, the Appeals Courtneither confronted a set of facts materially indistinguishablefrom Strickland or the ten Supreme Court cases that had appliedStrickland's test nor arrived at a result different from thisprecedent.10 TerryWilliams, 529 U.S. at 406, 120 S.Ct. 1495. Thus, the AppealsCourt's decision was not "contrary to" clearly establishedfederal law. 28 U.S.C. § 2254(d)(1).

Nor did the Appeals Court's decision involve an "unreasonableapplication of" clearly established federal law. Although theAppeals Court did not directly apply federal law, the law thatthe Appeals Court did apply was not objectively unreasonable inlight of Strickland. Terry Williams, 529 U.S. at 410, 120 S.Ct.1495. In particular, it was not unreasonable for the AppealsCourt to conclude that Dias failed to demonstrate that Sullivanwas deficient by not calling certain witnesses at trial. The"decision whether to call a particular witness is almost alwaysstrategic," Lema v.United States, 987 F.2d 48, 54 (1st Cir. 1993), quoted withapproval in Phoenix, 233 F.3d at 83, and Dias concedes thatSullivan was well aware of the eyewitnesses that were not called,Dias Aff. ¶¶ 8, 11. Dias argues for the first time before thisCourt that Sullivan also failed to call an expert witness, id.¶ 13, but again, Dias fails to demonstrate that Sullivan wasdeficient when he deliberately did not call such an expert totestify. In short, "[t]here is little reason to believe that[Sullivan's] failure to present the three witnesses proposed by[Dias] was anything other than a tactical decision." Lema, 987F.2d at 54. Nor was it unreasonable for the Appeals Court toconclude that Dias was not prevented from testifying in his owndefense given the unrebutted finding that Dias's failure totestify was neither unknowing nor involuntary. See id. at52-53. Furthermore, it was not unreasonable for the Appeals Courtto conclude that Sullivan was not ineffective for failing toobject to the prosecutor's statements in closing arguments thatDias was "going to kill someone," given that such statementsalmost always explicitly referenced Dias's statements that he wasgoing to kill a pig. Cf. Darden, 477 U.S. at 179-83, 106 S.Ct.2464 & n. 7 (holding that prosecutor's statements, including,"It's the work of an animal, there's no doubt about it," did notdeprive the petitioner of a fair trial.); Therrien v. Vose,782 F.2d 1, 4 (1st Cir. 1986) (holding that prosecutor's statement —"What we are saying is we know he shot them." — did not warrantretrial.). Finally, it was not unreasonable for the Appeals Courtto conclude that Sullivan was not ineffective on direct appealfor substituting specific objections to the jury instructionswith a general objection to the conviction of murder in thesecond degree. See Smith, 477 U.S. at 534-36, 106 S.Ct. 2661.

E. Dias's Procedural Rights on the Second Motion for New Trial

Dias also questions the constitutionality of the proceduresused to return him to prison after Justice Byron allowed thesecond motion for new trial. Because the Massachusetts AppealsCourt adjudicated these claims, this Court must review theAppeals Court's decision pursuant to section 2254(d), asconstrued by Terry Williams. The Appeals Court held:

(d) Ineffective assistance of counsel on second new trial motion. (i) Failure to file motion to dismiss on speedy trial grounds. Relying on Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979), Dias contends that the attorney who handled his second motion for a new trial should have filed a motion to dismiss, because Dias did not timely receive a new trial after the Superior Court judge initially granted Dias's second motion for a new trial. However, the order for a new trial was not "final" within the meaning of the rule, so as to begin the tolling of days within which the Commonwealth must proceed, because the Commonwealth could still pursue a rehearing or an application for further appellate review. See Commonwealth v. Levin, 390 Mass. 857, 860-861, 460 N.E.2d 578 (1984). In fact, the Commonwealth timely appealed this order.11

Moreover, the guarantee of a speedy trial does not apply to the appellate process. Commonwealth v. Hudson, 404 Mass. 282, 284, 535 N.E.2d 208 (1989). Thus, insofar as Dias claims that the time lag in the appellate process violated due process, Dias would have to show that the Commonwealth was purposefully dilatory or that "the delay, which was clearly inordinate, was significantly prejudicial." Id. at 285, 535 N.E.2d 208, quoting from Commonwealth v. Weichel, 403 Mass. 103, 109, 526 N.E.2d 760 (1988). Dias has not made any such showing.

2. Denial of due process at sentencing. Dias was released from custody when the Superior Court initially granted his second motion for a new trial. After the Supreme Judicial Court reversed that order, the Commonwealth moved to have Dias returned to custody. The Superior Court granted the Commonwealth's motion in a hearing at which neither Dias nor his attorney was present. Dias contends that this action violated his State and Federal due process rights and also constituted an impermissible ex parte communication.

A successful appeal of a ruling in favor of the defendant merely reinstates the verdict or finding of guilt and does not subject the defendant to multiple punishments or re-prosecution. United States v. Wilson, 420 U.S. 332, 344-345, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). As noted by the motion judge, Dias did not receive a "new" sentence; he merely became subject to a sentence that had previously been lawfully imposed. Dias did not have a right to be present at such a collateral proceeding where his presence did not bear "any relation reasonably substantial to [his] opportunity to defend against the crime charged." See Commonwealth v. Bergstrom, 402 Mass. 534, 544, 524 N.E.2d 366 (1988), citing Commonwealth v. Millen, 289 Mass. 441, 454-455, 194 N.E. 463 (1935) (no right to presence at motions for change of venue or for postponement of trial). Cf. Commonwealth v. Barnoski, 418 Mass. 523, 531, 638 N.E.2d 9 (1994) (hardship inquiries of prospective jurors was not "critical stage" at which defendant had right to be present); Commonwealth v. Angiulo, 415 Mass. 502, 530-531, 615 N.E.2d 155 (1993) (judge may perform administrative formalities outside presence of defendant but may not exclude defendant from inquiry about consequential matter).12 Dias received all process due him when he was originally sentenced.

Dias III, slip op. at 9-10, 16-17. This Court cannot considerwhether Fernandes and Lewis were ineffective during Dias's secondmotion for new trial, 28 U.S.C. § 2254(i), but this Court canreview the Appeals Court's opinion to the extent that itconsiders the merits of Dias's claims with respect to his secondmotion for new trial.

First, Dias complains to this Court that the Commonwealth filedan untimely appeal from the allowance of his second motion fornew trial. The Appeals Court held to the contrary, and becausethe issue is matter of state law, this Court cannot disturb theAppeals Court's holding. 28 U.S.C. § 2254(a); Coleman, 501 U.S.at 729-30, 111 S.Ct. 2546 (independent and adequate stategrounds).

Next, Dias complains that he was denied his right to a speedytrial once a new trial was ordered. According to the AppealsCourt, the order for a new trialwas not "final" as matter of state law, see Mass.R.Crim.P.36(b)(1)(D); cf. 18 U.S.C. § 3161(e) (requiring trial withinseventy days after order for retrial becomes final), making theonly question whether Dias was denied the right to a speedyappeal. The Appeals Court held that there is no right to aspeedy appeal. Dias III, slip op. at 10 (citing Commonwealthv. Hudson, 404 Mass. 282, 284, 535 N.E.2d 208 [1989], whichcites Commonwealth v. Lee, 394 Mass. 209, 220, 475 N.E.2d 363[1985], which relies upon Doescher v. Estelle, 454 F. Supp. 943,949-50 [N.D.Tex. 1978] [citing, inter alia, United States v.Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)],appeal dismissed, 597 F.2d 281 [5th Cir. 1979]). The AppealsCourt recognized, however, that there is a due process rightagainst prejudicial delay. Id. (citing Hudson, 404 Mass. at284, 535 N.E.2d 208, which quotes Commonwealth v. Weichel,403 Mass. 103, 109, 526 N.E.2d 760 [1988], which in turn citesCommonwealth v. Swenson, 368 Mass. 268, 279-80, 331 N.E.2d 893[1975] [citing Odsen v. Moore, 445 F.2d 806, 807 (1st Cir.1971)]). The test for a speedy trial under the Sixth Amendmentwas, and still is, set forth in Barker v. Wingo, 407 U.S. 514,92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), cited with approval inDoggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120L.Ed.2d 520 (1992). Although the guarantee of a speedy trialapplies even to those free on bail, United States v. Loud Hawk,474 U.S. 302, 311 n. 13, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986),the Supreme Court has never stated that the Sixth Amendmentapplies to appeals. To the contrary, the Supreme Court hasstated that "the Sixth Amendment right of the accused to a speedytrial has no application beyond the confines of a formal criminalprosecution." Doggett, 505 U.S. at 655, 112 S.Ct. 2686(emphasis added). Accordingly, this Court cannot say that theAppeals Court's holding with respect to the Sixth Amendment was"contrary to" or an "unreasonable application of" clearlyestablished federal law, as determined by the Supreme Court.28 U.S.C. § 2254(d)(1). Nor can this Court say that the AppealsCourt's holding with respect to due process was "contrary to" or"an unreasonable application of" clearly established federal law.Id. "The Sixth Amendment right to a speedy trial is . . . notprimarily intended to prevent prejudice to the defense caused bypassage of time; that interest is protected by the Due ProcessClause and by statutes of limitations." United States v.MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982),examined in Doggett, 505 U.S. at 654-55, 112 S.Ct. 2686 & n. 2;accord Marion, 404 U.S. at 320-26, 92 S.Ct. 455, examined inDoggett, 505 U.S. at 654-55, 112 S.Ct. 2686. Despite thisostensible distinction, the Supreme Court has not set forth a dueprocess test for speedy appeals. Without Supreme Court guidance,federal courts have conflated the right to a speedy trial underthe Sixth Amendment and the due process clause by applying amodified version of the Barker test to post-conviction appeals.E.g., Latimore v. Spencer, 994 F. Supp. 60, 67-68 (D.Mass. 1998)(Harrington, J.) (citing, inter alia, Harris v. Champion,15 F.3d 1538 [10th Cir. 1994], and United States v. Pratt,645 F.2d 89, 91 [1st Cir. 1981] [citing, inter alia, Odsen, 445F.2d at 807]); LeBlanc v. Grelotti, 910 F. Supp. 826, 830(D.Mass. 1995) (Gertner, J.) (same). Under the modified Barkertest, the ultimate inquiry is whether the defendant wasprejudiced by the delay in the appeals process. This Court cannotsay that it was objectively unreasonable for the Appeals Court tohold that Dias failed to show prejudice. Indeed, Dias benefittedfrom over three years of freedom which, as matter of law based ona written record, the Supreme Judicial Court held was allowed inerror.

Next, Dias complains that his return to prison, after theSupreme Judicial Court reversed Justice Byron, was in violationof his rights to due process, counsel, and confrontation.Although the Appeals Court did not specifically address theissue, it is settled that there is no constitutional right tocounsel in post-conviction proceedings. Coleman, 501 U.S. at752-53, 111 S.Ct. 2546; Pennsylvania v. Finley, 481 U.S. 551,551-52, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); see also28 U.S.C. § 2254(i). With respect to due process and the right toconfrontation, the Appeals Court's decision was neither "contraryto" nor an "unreasonable application of" clearly establishedfederal law, as determined by the Supreme Court. Id. §2254(d)(1). The Supreme Court has not clearly addressed aprisoner's right to be present at a post-conviction hearing, butthe First Circuit has held that a prisoner need not be present atall, so long as the procedures used by the state court do notviolate fundamental fairness. Oken v. Warden, MSP, 233 F.3d 86,91-96 (1st Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct.1494, 149 L.Ed.2d 380 (2001). In this case, the hearing aboutwhich Dias complains was ministerial in nature; therefore, it wasnot objectively unreasonable for the Appeals Court to hold thatDias's presence was not required.

Finally, Dias complains that he was not allowed to appealJustice Byron's denial of the second motion for new trial afterremand from the Supreme Judicial Court. Dias does not stateclearly the grounds for his claim, but to the extent that hecomplains about his counsel's failure to appeal, this Courtcannot consider the claim. 28 U.S.C. § 2254(i). To the extentthat Dias complains that he was not advised that Justice Byronhad denied the remainder of his second motion for new trial, Diaswaived this claim when he failed to appeal Justice Greaney'sdecision rejecting the application for a late appeal. Dias III,slip op. at 11.

F. Dias's Right to an Evidentiary Hearing in State Court

Dias claims that he was entitled to an evidentiary hearing instate court to develop the merits of his claims of ineffectiveassistance of counsel. The Massachusetts Appeals Courtadjudicated this claim:

Dias asserts that the motion judge erred in failing to hold an evidentiary hearing on this subject [ineffective assistance of counsel]. However, we defer to the sound discretion of the motion judge on this matter, and further note that an evidentiary hearing is not required where a defendant has made no showing of ineffective assistance of counsel. See Commonwealth v. DeVincent, 421 Mass. 64, 67, 653 N.E.2d 586 (1995).

Dias III, slip op. at 3 n. 3. The motion justice did not holdan evidentiary hearing because Dias made no showing that anevidentiary hearing would be necessary. Resp't's Ex. 31, at 7-8.This Court will not disturb the state court's procedure, Connorsv. Matesanz, 49 F. Supp.2d 23, 26 (D.Mass. 1999), and asdiscussed above, supra pp. 40-42, Dias is not entitled to anevidentiary hearing from this Court.

IV. ORDER AND RULING

The Court ORDERS that the formal petition for habeas corpus[Docket No. 3] be considered filed on April 24, 2000.

The petitions for habeas corpus [Docket No. 3] and anevidentiary hearing [Docket No. 18] are DENIED for the reasonsstated above.

1. While Sturgeon was the only witness who testified to thisversion of events, several other persons who arrived at theapartment with him had given similar accounts when questioned bythe police.

2. See, e.g., Commonwealth v. Cordeiro, 401 Mass. 843,519 N.E.2d 1328 (1988) (rape); Commonwealth v. Fratus,385 Mass. 551, 432 N.E.2d 710 (1982) (murder); Commonwealth v. Lewis,381 Mass. 411, 409 N.E.2d 771 (1980) (homicide); Commonwealth v.Bettencourt, 361 Mass. 515, 281 N.E.2d 220 (1972) (rape);Commonwealth v. Pina, 360 Mass. 139, 273 N.E.2d 806 (1971)(robbery); Commonwealth v. Roselli, 335 Mass. 38,138 N.E.2d 607 (1956) (robbery).

3. Sometime after his release on bail, Dias moved to Texas.Dias Aff. ¶¶ 20-21; Dias v. DuBois, slip op. at 13.

4. At the conclusion of this memorandum, this Court will enteran order with respect to "Docket No. 3," which was filed on June9, 2000. "Docket No. 3" is a form petition in compliance withRule 2(c) of the Rules Governing Section 2254 Cases. "Docket No.1," filed on April 24, 2000, is the typewritten petition by Diasthat details his arguments. This Court treated "Docket No. 1" asan application to proceed in forma pauperis. Nevertheless, thisCourt deems the filing date of "Docket No. 1," or perhaps a fewdays earlier, to be the date Dias filed his petition for purposesof section 2244(d). See Nichols v. Bowersox, 172 F.3d 1068,1076-77 (8th Cir. 1999) (en banc); Jones v. Bertrand,171 F.3d 499, 503 (7th Cir. 1999); cf. Morales-Rivera v. United States,184 F.3d 109, 110-11 (1st Cir. 1999) (extending Houston v.Lack, 487 U.S. 266, 108 S.Ct. 2379 [1988], to create mailboxrule for habeas petitions). If this Court deemed the filing dateof "Docket No. 3" to be the date that Dias filed his petition forpurposes of section 2244(d), then the petition would have beenuntimely: AEDPA went into effect on April 24, 1996 (day 115 of1996); Dias filed his third motion for new trial on December 10,1996 (day 345 of 1996); the Supreme Judicial Court deniedapplication for further appellate review on January 7, 2000 (day7 of 2000); Dias filed his typewritten petition for habeas corpusin this Court on April 24, 2000 (day 115 of 2000); and Dias filedhis standardized petition for habeas corpus in this Court on June9, 2000 (day 161 of 2000). Thus, Dias waited 230 days beforefiling his third motion for new trial and either 108 or 154 daysbefore filing his petition for habeas corpus, for a total of 338or 384 days, depending on which petition is deemed relevant forpurposes of section 2244(d). This Court deems the correct totalto be 338 days.

5. The affidavit submitted by Dias apparently is missing thethird of its six pages, but there is no indication that themissing page includes facts critical to this determination. Thefacts relevant to whether counsel failed to call witnesses arefound on the second page of the affidavit.

6. To the extent that Dias implies that his return to prison,after the Supreme Judicial Court reversed Justice Byron'sallowance of the second motion for new trial, was a form ofdouble jeopardy, he is incorrect. Justice Byron's decisionallowing a new trial never became final, and even if it hadbecome final, the Supreme Court has long held that a new trial,after a conviction is reversed on appeal, is not double jeopardy.Ball v. United States, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 41L.Ed. 300 (1896), cited with approval in Lockhart v. Nelson,488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

7. Because Dias's trial counsel also represented Dias ondirect appeal, Dias was not required to claim ineffectiveassistance in his direct appeal. See Commonwealth v. Lanoue,409 Mass. 1, 3-4, 563 N.E.2d 1367 (1990).

8. We note that their testimony may have been of questionableutility. A police officer testified that Cora Myers was not inthe apartment at the time of the shooting. (Tr. at 101). A policereport indicates that Michael Costa told the police he also wasnot in the apartment at the time of the shooting and that thepolice had difficulty understanding him due to his intoxication.

9. The testimony on this point had been that Dias told othershe was planning to go to Taunton on the day following theincident to kill a pig.

10. In Lockhart, the Supreme Court held that counsel, whoadmittedly was deficient, was not constitutionally ineffectivefor failing to make an important objection at sentencing becausethe case that would have formed the basis for the objection waslater overruled by the Eighth circuit, meaning that thepetitioner could not show the Supreme Court that he wasprejudiced by the deficient counsel. Lockhart, 506 U.S. at368-72, 113 S.Ct. 838.

In Coleman, the Supreme Court held that counsel in statepost-conviction proceedings cannot be ineffective because thereis no constitutional right to an attorney in such proceedings.Coleman, 501 U.S. at 752-54, 111 S.Ct. 2546.

In Lozada, the Supreme Court held that the court of appealserred in denying a prisoner a certificate of probable causebecause the prisoner made a substantial showing that his counselwas ineffective. Counsel allegedly failed to inform the defendantof his right to appeal, his right to appointed counsel, and theprocedures and time limitations for an appeal. Lozada, 498 U.S.at 430-31, 111 S.Ct. 860.

In Burger, the Supreme Court held that counsel whosimultaneously represented two co-defendants was not ineffective,despite arguments of conflict of interest given counsel's failureto argue that one defendant was less culpable than the other,despite counsel's failure to present mitigating evidence at thesentencing hearing, and even though the defendants ultimatelyreceived death sentences. Burger, 483 U.S. at 781-96, 107 S.Ct.3114.

In Smith, the Supreme Court held that counsel who decided notto assign any error concerning the admission of damagingtestimony by a court-appointed psychiatrist because he thoughtstate law would not support the argument, was not ineffective,even though the defendant ultimately received a death sentence.Smith, 477 U.S. at 534-36, 106 S.Ct. 2661.

In Murray, the Supreme Court held that a prisoner, who didnot argue that he received ineffective assistance of counsel,could not complain that he was barred from litigating an issue infederal court as a result of his counsel's inadvertent failure toraise the issue on direct appeal. Murray, 477 U.S. at 488-92,497, 106 S.Ct. 2639.

In Morrison, the Supreme Court held that although habeascannot be based on the Fourth Amendment, it can be based oncounsel who failed to raise Fourth Amendment objections at trial.In particular, the Supreme Court held that counsel in a rapetrial, who failed to object to the introduction of bed sheetstaken from the defendant's apartment without a search warrant,was deficient because he failed to conduct any pretrial discoveryand thus was unaware of the illegal search until the time oftrial. Morrison, 477 U.S. at 383-87, 106 S.Ct. 2574. TheSupreme Court remanded for further proceedings on whether thedefendant was prejudiced by his counsel's deficiency.

In Whiteside, the Supreme Court held that counsel who refusedto cooperate with the defendant in presenting perjured testimonyat trial was not ineffective. Whiteside, 475 U.S. at 166-76,106 S.Ct. 988.

In Hill, the Supreme Court held in general that a guilty pleamight not be voluntary if it was made with the ineffectiveassistance of counsel, but held in particular that the prisonerfailed to allege that he had relied on the advice of counsel sothat there was no way the prisoner could show prejudice. Hill,474 U.S. at 56-60, 106 S.Ct. 366.

In Darden and Strickland, the Supreme Court held thatcounsel at a sentencing hearing who relied solely on his client'sstatement, rather than presenting mitigating evidence, was notineffective, even though the defendant ultimately received adeath sentence. Darden, 477 U.S. at 184-87, 106 S.Ct. 2464;Strickland, 466 U.S. at 699-700, 104 S.Ct. 2052.

11. Dias also suggests that counsel should have objected tothe Commonwealth's appeal of the new trial order because theCommonwealth did not file a written opposition to the second newtrial motion. However, the record indicates that the Commonwealthparticipated at the argument on the motion, and Mass.R.Crim.P.30(c)(8) grants an aggrieved party the right to appeal from anorder for a new trial.

12. As Dias's due process claim fails, his claim that counselwas ineffective in failing to be present necessarily fails aswell. Counsel's presence could not have accomplished any benefitfor Dias.

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