Joseph Teti v. James Bender, Acting Commissioner, Massachusetts Department of Correction

United States Court of Appeals
For the First Circuit
No. 06-2371
JOSEPH TETI,
Petitioner, Appellant,
v.
JAMES BENDER,
ACTING COMMISSIONER, MASSACHUSETTS DEPARTMENT OF CORRECTION,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Rosemary Curran Scapicchio for petitioner.
Eva M. Badway, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for respondent.
November 8, 2007

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Pursuant to Fed. R. App. P. 43(c)(2), Acting Commissioner 1
James Bender has been substituted for former Commissioner Kathleen
Dennehy.
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LYNCH, Circuit Judge. In this opinion we address some
issues new to this circuit about practice under the federal habeas
corpus statute, 28 U.S.C. § 2254. Joseph Teti appeals from the
denial of his federal petition for habeas corpus relief. The 1
primary question in this appeal is whether the federal district
court erred in applying the presumption of correctness under 28
U.S.C. § 2254(e)(1) to the state appellate court's findings of
facts and in denying discovery and an evidentiary hearing.
Substantively, Teti argues that the state court erred in
denying his claim that he had received ineffective assistance of
counsel in violation of his Sixth and Fourteenth Amendment rights
because, inter alia, his original defense attorney Bradford Keene
had an actual conflict of interest.
We affirm the denial of habeas corpus relief by the
district court.
I.
We describe the facts as they appear from the state court
record. Teti was convicted in Massachusetts Superior Court in
April 1999 on charges stemming from two cocaine trafficking
incidents in 1996. See Mass. Gen. Laws ch. 94C § 32E(b)(4). As he
had provided cocaine to an undercover agent, Teti's primary defense

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was entrapment. Commonwealth v. Teti, 801 N.E.2d 279, 282 (Mass.
App. Ct. 2004). He testified that he was an addict and had been
pressured by the agent to make the sale. Id.
On the third day of Teti's four-day trial the prosecutor
raised an issue of possible conflict: that defense attorney
Bradford Keene had also represented a witness hostile to Teti. Id.
at 283. Teti originally hired attorney Keene in May 1998 but
replaced him with attorney John McBride in January 1999. Id. at
282. After forwarding his file on Teti to McBride, Keene was no
longer involved in the case, although he never formally withdrew
his appearance and he sat at the defense counsel table during
Teti's trial. Id. at 282-83 & n.6. Sometime around April 1998, a
year before Teti's trial, Keene had represented a man named Leo
Lobello in some limited matters. Lobello, a convicted federal
felon, was the informant who had introduced Teti to the undercover
agent who bought the cocaine from Teti. Id. at 282. Keene
insisted, however, that he did not know Lobello was the informant
in Teti's case until a week before Teti's trial. Id. at 285.
McBride, who did know as early as February 1999 that
Lobello was the informant, had called Lobello as a hostile witness
in the vain hopes that Lobello would bolster the entrapment defense
by demonstrating that Teti was not predisposed to sell cocaine and
by appearing himself to be "the instigator of the drug

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transactions, as well as a reprobate and liar, testifying to curry
favor with the Federal authorities," id. at 282.
Upon hearing the prosecutor's concern about a potential
conflict, the court immediately questioned both Keene and McBride.
That questioning, which has been the only hearing on this issue,
underlies the description of the facts by the Massachusetts Appeals
Court ("MAC") discussed below. Initially, the state trial judge
stated her impression that Keene had a conflict of interest; she
required him to withdraw, but allowed the trial to continue. The
jury convicted Teti, and he was sentenced to fifteen years'
imprisonment.
Two and a half years later, Teti moved for a new trial
and, on denial of the new trial motion, moved for reconsideration.
That motion was also denied. The same state judge who tried the
case, in denying the motion for a new trial, concluded that
contrary to her initial impression, there was no actual conflict of
interest and no showing that any prejudice had resulted, even if
there had been a conflict. Because Massachusetts law largely
leaves the decision to grant an evidentiary hearing on a new trial
motion to the sound discretion of the trial judge, and because Teti
had not presented any substantial question of fact warranting an
evidentiary hearing, the state judge declined to grant one. See
Mass. R. Crim. P. 30(c)(3); Commonwealth v. Stewart, 418 N.E.2d
1219, 1222-23 (Mass. 1981).

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Rule 35(b) allows the prosecutor to move for a reduced 2
sentence based on the defendant's "substantial assistance in
investigating or prosecuting another person" after the defendant
was sentenced. Fed. R. Crim. P. 35(b)(1)(A).
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The MAC in 2004 affirmed the conviction as well as the
denial of Teti's motion for a new trial. The MAC rejected Teti's
claims that Keene had an actual conflict of interest in violation
of Teti's federal and state constitutional rights, Teti, 801 N.E.2d
at 284; that Keene's actions had caused Teti any prejudice, making
it irrelevant whether Keene had a potential conflict of interest,
id. at 286; and that Teti had been denied his right to effective
assistance of counsel under the federal and state constitutions for
other reasons, id. at 286-89
The MAC made certain key findings of fact, which the
federal habeas court later presumed were correct: (1) that,
contrary to what the prosecutor had initially believed, Keene had
not represented Lobello in seeking a Rule 35(b) motion in federal
court to reduce Lobello's federal sentence, id. at 283, 285 n.10;2
(2) that Keene's representation of Lobello was fully in the past
and was limited to a few, unanswered phone calls to a South
Carolina prison facility approximately one year before Teti's trial
in an effort to have Lobello transferred to another facility, and
that Keene had never spoken to or met Lobello, id. at 284-85; (3)
that Keene was not aware that Lobello was the informant in Teti's
case until one week before trial -- "a point by which [Keene's]

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activities on Lobello's behalf had long since ended," id. at 285;
(4) that Keene did not participate in the preparation of Teti's
case and that his "involvement with the trial was essentially
nonexistent," id. at 286; and (5) that McBride learned of Keene's
representation of Lobello only on the third day of Teti's trial,
id. at 287. Based on these factual determinations, the MAC
concluded that Teti failed to establish the existence of an actual
conflict of interest. Id. at 285.
The MAC then considered whether apart from an actual
conflict, Teti's counsel had a potential or, as state law phrases
it, a "tenuous" conflict. It determined that, whether or not there
had been a conflict, there was no prejudice in any event. Id. at
286. As the MAC sensibly reasoned, Keene's participation in the
trial preparation and the trial itself was de minimis. Further,
any privileged information that Keene did have would not have
harmed Teti, as "[i]t would have been to the defendant's benefit
for McBride to know more about Lobello, a hostile witness." Id.
Teti had also presented to the MAC a claim of ineffective
assistance by McBride, based on several alleged deficiencies. Teti
argued that McBride was ineffective in failing to investigate
Keene's potential conflicts and to tell Teti about Keene's prior
representation of Lobello, but the MAC held there was no
ineffectiveness and no prejudice. Id. at 287. The MAC also noted
that when the trial judge had questioned Teti about Keene's alleged

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conflict, Teti said he was "quite satisfied" with McBride's
representation. Id. The MAC, accordingly, rejected Teti's
assertion that had he been informed more fully of the conflict, he
would have insisted on new counsel. Id.
Teti also argued that McBride was ineffective for failing
to move to sever the indictments against him; for introducing
evidence of additional, uncharged drug transactions; and for
promising in his opening statement but then not providing testimony
about the effects of Teti's psychological and drug dependency
problems on his state of mind. The MAC concluded that none of
these actions constituted ineffective assistance. See id. at 286-
89.
The Supreme Judicial Court denied further appellate
review. Commonwealth v. Teti, 805 N.E.2d 44 (Mass. 2004).
II.
In February 2005, Teti filed a petition for habeas corpus
in federal court under 28 U.S.C. § 2254, raising the same arguments
he had made to the MAC.
In an able opinion, the district court denied Teti's
requests for discovery and an evidentiary hearing and denied habeas
relief. The court applied the statutory presumption of correctness
to the state court's factual determinations and viewed the claims
actually ruled upon by the MAC through the deferential lens of the
Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L.

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No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. § 2254(d),
(e)(1).
The district court held that the state court holdings --
that there was neither an actual conflict nor any prejudice -- were
not an unreasonable application of federal law under AEDPA. See 28
U.S.C. § 2254(d)(1). Under federal law, an ineffective assistance
of counsel claim requires demonstrating "a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v. Washington,
466 U.S. 668, 694 (1984). If, however, a defendant can show that
his attorney "actively represented conflicting interests" in breach
of the attorney's duty of loyalty, and if the defendant can show
that this "actual" conflict of interest "adversely affected [the]
lawyer's performance," then the stricter prejudice showing required
by Strickland does not apply. Id. at 692 (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348, 350 (1980)) (internal quotation marks
omitted); see also Allison v. Ficco, 388 F.3d 367, 370 (1st Cir.
2004). In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme
Court emphasized that an actual conflict of interest does not
result in an automatic reversal; in almost all cases, some showing
of an adverse effect is still required. Id. at 171, 173-74.
Lesser ("potential") conflicts of interest can also be the basis of
an ineffective assistance claim, but the more stringent prejudice
prong of Strickland then applies.

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Although the MAC had relied on state law in concluding
there was no actual conflict, the district court noted that state
law is more favorable than federal law to the defendant on this
issue because under state law, if there were an actual conflict of
interest, that conflict would result in automatic reversal
regardless of whether any prejudice could be shown. See
Commonwealth v. Croken, 733 N.E.2d 1005, 1010 (Mass. 2000). For
habeas purposes, where state law is explicitly more favorable to
defendants than the federal standard, "we will presume the federal
law adjudication to be subsumed within the state law adjudication."
McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002); see also
Commonwealth v. Shraiar, 489 N.E.2d 689, 692 n.3 (Mass. 1986)
(noting that the state constitutional standard on this issue is
more protective of defendant's interests than the federal
constitutional standard).
As for Teti's claim that McBride shared Keene's conflict
of interest, the district court determined that the MAC had not
adjudicated that claim on the merits, even though Teti had
presented it to the court; it thus reviewed the claim de novo
instead of applying § 2254(d)(1)'s highly deferential standard.
See DiBenedetto v. Hall, 272 F.3d 1, 6-7 & n.1 (1st Cir. 2001);
Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). Again
utilizing the presumption that the state court's factual findings
were correct, the district court concluded that attorney McBride

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had no conflict and that Teti could not establish any prejudice
that would have resulted even if a conflict had existed. Finally,
the court found no basis for habeas relief in the state court's
rejection of the remaining ineffective assistance claims.
The federal habeas court denied a later motion to amend
or to alter its findings. It granted a certificate of
appealability sua sponte regarding issues related to the
effectiveness of Teti's counsel.
In addressing these issues, we recite only so much of the
case and underlying facts as needed for analysis of the denial of
federal habeas relief.
III.
We review the district court's legal conclusions de novo;
further, "[w]hen the district court undertakes no independent
factfinding in a habeas case, we are effectively in the same
position as the district court vis-à-vis the state court record,"
so we review the district court's factual conclusions de novo as
well. Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007), petition
for cert. filed, __ U.S.L.W. ____ (U.S. Sept. 28, 2007) (No. 07-
6854).
A. Deference Under § 2254(d)
Under AEDPA, our review of state court legal and factual
determinations is highly deferential. When a petitioner presses a
claim that was adjudicated on the merits in state court, federal

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habeas courts must defer to the state court determination unless
it:
(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).
Section 2254(d) applies to Teti's claim that Keene
provided ineffective assistance of counsel due to an actual or
potential conflict of interest because the MAC adjudicated that
claim on the merits. A matter is "adjudicated on the merits" if
there is a "decision finally resolving the parties' claims, with
res judicata effect, that is based on the substance of the claim
advanced, rather than on a procedural, or other, ground." Sellan
v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Contrary to Teti's
argument, § 2254(d) applies regardless of the procedures employed
or the decision reached by the state court, as long as a
substantive decision was reached; the adequacy of the procedures
and of the decision are addressed through the lens of § 2254(d),
not as a threshold matter. See, e.g., Lambert v. Blodgett, 393
F.3d 943, 966-69 (9th Cir. 2004) (no procedural requisites before
§ 2254(d) applies); Wright v. Sec'y for Dep't of Corr., 278 F.3d
1245, 1254 (11th Cir. 2002) (§ 2254(d) applies equally to summary
dispositions); Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir.

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2001); Bell v. Jarvis, 236 F.3d 149, 158-60 (4th Cir. 2000) (en
banc); Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); Aycox
v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999).
Since an ineffective assistance of counsel claim is a
mixed question of law and fact, Strickland, 466 U.S. at 698; Scarpa
v. DuBois, 38 F.3d 1, 9 (1st Cir. 1994), Teti cannot be granted
relief unless the MAC's decision was an "unreasonable application
of[] clearly established Federal law," Terry Williams v. Taylor,
529 U.S. 362, 409 (2000) (mixed questions are reviewed under
§ 2254(d)(1)'s "unreasonable application" clause). A decision can
still be reasonable even if the reviewing court thinks it is wrong;
"unreasonable" here means something more than incorrect or
erroneous. Id. at 411.
Based on the facts as described by the MAC, it was not
unreasonable for the MAC to conclude that Keene's representation
was not constitutionally deficient. Even assuming that Keene's
representation of Lobello and Teti overlapped for some period of
time and even assuming that Keene was actively engaged in Teti's
trial, Keene had stopped representing Lobello a year before the
trial and long before he knew that Lobello was the informant in
Teti's case. Further, the MAC found that Keene's representation of
Lobello was very limited and would not have related in any way to
Teti's case. Based on these facts, there were no competing
loyalties and no possible detrimental effect on Teti's

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representation. To press this claim, then, Teti must challenge the
factfinding on which the MAC's conclusion rested. We turn to
§ 2254(e).
Our mode of analysis does not suggest, however, that
habeas courts should always consider the reasonableness of the
state court's determination under § 2254(d) before considering the
validity of the state court factfinding under § 2254(e). To
suggest a set order of analysis would unnecessarily constrain
habeas courts. Accord Lambert v. Blackwell, 387 F.3d 210, 236 n.19
(3d Cir. 2004) (acknowledging that different circuits have
suggested different orders of analysis and declining to adopt a
rigid approach). Others disagree. See 1 Hertz & Liebman, Federal
Habeas Corpus Practice and Procedure § 20.2c (5th ed. 2005)
(concluding that courts should apply § 2254(d)(2)'s reasonableness
review before applying § 2254(e)(1)).
B. Deference Under § 2254(e)
Under § 2254(e)(1), "a determination of a factual issue
made by a State court shall be presumed to be correct." The
petitioner bears the burden of overcoming that presumption by
providing "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
The relationship between § 2254(d)(2) and § 2254(e)(1),
both of which apply to state court fact determinations, has caused
some confusion. The Supreme Court has suggested that § 2254(e)(1)
applies to "determinations of factual issues, rather than

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The Ninth Circuit, for example, draws a slightly 3
different distinction than the one described above. Under that
court's approach, § 2254(d)(2) applies when the petitioner argues
that the state court drew unreasonable conclusions based on the
evidence already in the record; § 2254(e)(1) applies, on the other
hand, when the petitioner wishes to bring in new evidence to
challenge the facts found by the state court. See, e.g., Blodgett,
393 F.3d at 972, 978; Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th
Cir. 2004).
Professors Hertz and Liebman would apply the provisions
sequentially: under their approach, courts should consider first
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decisions," while § 2254(d)(2) "applies to the granting of habeas
relief" itself. Miller-El v. Cockrell, 537 U.S. 322, 341-42
(2003). That is, under this approach, § 2254(d)(2)'s
reasonableness standard would apply to the final decision reached
by the state court on a determinative factual question, while
§ 2254(e)(1)'s presumption of correctness would apply to the
individual factfindings, which might underlie the state court's
final decision or which might be determinative of new legal issues
considered by the habeas court. See, e.g., Blackwell, 387 F.3d at
235 ("[Section] 2254(d)(2)'s reasonableness determination turns on
a consideration of the totality of the 'evidence presented in the
state-court proceeding,' while § 2254(e)(1) contemplates a
challenge to the state court's individual factual determinations .
. . .") (quoting 28 U.S.C. § 2254(d)(2)); Valdez, 274 F.3d at 951
n.17; cf. Coombs v. State of Maine, 202 F.3d 14, 18 (1st Cir. 2000)
(suggesting but not explicating this distinction).
This question has not yet been definitively resolved, nor
do we attempt our own resolution here. Since Miller-El, the 3

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whether a state court's factfindings are reasonable under
§ 2254(d)(2), and if they are, only then should the courts apply
§ 2254(e)(1)'s presumption of correctness. 1 Hertz & Liebman
§ 20.2c.
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Supreme Court has not further clarified this issue. See Rice v.
Collins, 546 U.S. 333, 338-39 (2006). As the Third Circuit noted
in Blackwell, "[d]espite the Supreme Court's pronouncements in
Miller-El and Wiggins [v. Smith, 539 U.S. 510 (2003)], a
comprehensive interpretation of AEDPA's factual review scheme has
yet to emerge from the federal courts. Specifically, the
relationship between the standards enunciated in § 2254(d)(2) and
§ 2254(e)(1) remains unclear." 387 F.3d at 235; see also Blodgett,
393 F.3d at 971 & n.19; R. Fallon et al., Hart & Wechsler's The
Federal Courts and the Federal System 1355 (5th ed. 2003); 17B
Wright et al., Federal Practice and Procedure: Jurisdiction
§ 4265.2 (3d ed. 2007).
For now we follow the Supreme Court's lead in Miller-El
and apply § 2254(e)(1) to the MAC's individual factfindings. The
decision to do so is not determinative, however, for not only do
both provisions "express the same fundamental principle of
deference to state court findings," Blackwell, 387 F.3d at 235,
but were we to apply § 2254(d)(2), we would also find the MAC's
factual conclusions to be not unreasonable in light of the record
before it.

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1. Presumption of Correctness Under § 2254(e)(1)
The "presumption of correctness is equally applicable
when a state appellate court, as opposed to a state trial court,
makes the finding of fact." Norton v. Spencer, 351 F.3d 1, 6 (1st
Cir. 2003) (quoting Sumner v. Mata, 455 U.S. 591, 592-93 (1982))
(internal quotation marks omitted). Contrary to Teti's arguments,
it is for the habeas petitioner to provide the clear and convincing
evidence that can overcome that presumption of correctness.
There is some disagreement about whether the presumption
of correctness always applies or if there are instead certain
procedural prerequisites. See, e.g., Mayes v. Gibson, 210 F.3d
1284, 1289 (10th Cir. 2000) (if there was no "full, fair, and
adequate hearing in the state court," the presumption of
correctness does not apply); cf. Taylor v. Maddox, 366 F.3d 992,
1001 (9th Cir. 2004) ("If . . . a state court makes evidentiary
findings without holding a hearing and giving petitioner an
opportunity to present evidence, such findings clearly result in an
'unreasonable determination' of the facts [under § 2254(d)(2)].");
1 Hertz & Liebman § 20.2c (§ 2254(d)(2)'s reasonableness standard
applies to both the process and the substance of state court
factfindings).
While the policy arguments underlying these conclusions
are reasonable, we must look first to the language of the statute.
When Congress revised § 2254 under AEDPA, it removed language that

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had limited the presumption to determinations made "after a hearing
on the merits of a factual issue," as well as the statute's list of
procedural defects that previously deprived state court factfinding
of the presumption. As Professors Fallon, Meltzer, and Shapiro
have noted, these changes suggest that "the presumption of
correctness now applies across the board." R. Fallon et al. at
1355; see also Valdez, 274 F.3d at 949-51; Mendiola v. Schomig, 224
F.3d 589, 592-93 (7th Cir. 2000); 17B Wright et al. § 4265.2
(noting change of statutory language, raising concerns, and
predicting that courts might read some of the procedural
requirements back into the statute).
The Third Circuit has taken the position that "the extent
to which a state court provides a 'full and fair hearing' is no
longer a threshold requirement before deference applies; but it
might be a consideration while applying deference under
§ 2254(d)(2) and § 2254(e)(1)." Blackwell, 387 F.3d at 239. We
agree with this approach. While it might seem questionable to
presume the correctness of material facts not derived from a full
and fair hearing in state court, the veracity of those facts can be
tested through an evidentiary hearing before the district court
where appropriate. Cf. Valdez, 274 F.3d at 951 n.17, 952
(evidentiary hearing can aid in federal court's assessment of
reasonableness under § 2254(d) when state did not hold a full and
fair hearing).

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Teti does not attempt to argue that he has clear and
convincing evidence to overcome the presumption here. Instead he
tries to refute the MAC's factual determinations by employing the
same documents already considered by the state courts. That
approach fails. Describing how different parties stated different
versions of events does not constitute the needed showing of clear
and convincing evidence; rather, the state trial judge's implicit
credibility determinations, adopted by the MAC, are exactly the
type of factual determinations to which we defer, at least short of
any indication of serious error. Rice, 546 U.S. at 341-42
("Reasonable minds reviewing the record might disagree about the
prosecutor's credibility, but on habeas review that does not
suffice to supersede the trial court's credibility
determination.").
Teti also argues that the trial judge's conclusion post-
trial that there was no relevant conflict of interest contradicts
her in-court statements. That argument does not work either.
First, the judge's in-court statements were not final
determinations and thus not inconsistent with her later ruling.
Teti, 801 N.E.2d at 285 n.11 ("That the judge, on first impression,
believed there was a conflict did not prevent her from considering
the issue further, and then specifically finding, in a reasoned and
reflective memorandum . . . , that there was, in fact, no
conflict."). Second, such a determination by the state trial judge

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would be a legal -- not factual -- conclusion and thus not relevant
to the § 2254(e)(1) inquiry.
Because the presumption of correctness applies to all the
state court's factfindings, and because Teti does not point us to
any clear and convincing evidence that refutes those factfindings,
we turn next to whether he should have been allowed discovery or an
evidentiary hearing.
2. Discovery Under Rule 6
Habeas corpus proceedings under § 2254 are civil in
nature, but they are governed by a discrete set of procedural
rules. Mayle v. Felix, 545 U.S. 644, 654 & 655 n.4 (2005). Thus
unlike in normal civil cases, there is no entitlement to discovery
in habeas proceedings; the availability of discovery is instead
circumscribed by Rule 6 of the Rules Governing § 2254 Cases. Bracy
v. Gramley, 520 U.S. 899, 904 (1997); Bader v. Warden, 488 F.3d
483, 488 (1st Cir. 2007). Under Rule 6, the federal habeas judge
has discretion to grant discovery for "good cause." Rule 6(a).
The party requesting discovery must not only provide reasons for
the discovery, but also must specify "any proposed interrogatories
and requests for admission" and "any requested documents." Rule
6(b). We review the district court's denial of discovery for abuse
of discretion. See Bader, 488 F.3d at 488.
Teti did not comply with the specific requirements of
Rule (6)(b); his request for discovery is generalized and does not

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indicate exactly what information he seeks to obtain. A habeas
proceeding is not a fishing expedition. E.g., Stanford v. Parker,
266 F.3d 442, 460 (6th Cir. 2001); Rich v. Calderon, 187 F.3d 1064,
1067 (9th Cir. 1999).
In addition, as the district court noted, Teti did not
meet the Rule's requirement of "good cause." The Supreme Court has
defined "good cause" in this context as specific allegations that
give a court "reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is . . .
entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1969)) (internal quotation marks
omitted). The district court carefully reviewed the documents
submitted to it and concluded they did not suggest that discovery
would help establish any claim for relief. The district court did
not abuse its discretion in denying discovery.
3. Evidentiary Hearings
We also review the decision whether to grant an
evidentiary hearing for abuse of discretion. Pike, 492 F.3d at 70;
see also Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007).
Before AEDPA, judge-made law governed the decision
whether to grant an evidentiary hearing. Under Townsend v. Sain,
372 U.S. 293 (1963), district courts generally had discretion to
grant such hearings when they deemed it appropriate. Id. at 318
("In every case [the district judge] has the power, constrained

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AEDPA did not change the standard for granting 4
evidentiary hearings under § 2255, which applies to federal
petitioners. This suggests that Congress intended "to create a
discrepancy between the (respectively, somewhat narrower and
broader) rights to a hearing in section 2254 and section 2255." 2
Hertz & Liebman § 41.6d. This discrepancy underscores the
principles of comity and federalism embodied in § 2254.
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only by his sound discretion, to receive evidence bearing upon the
applicant's constitutional claim."). In some situations, an
evidentiary hearing before the district court was mandatory: "Where
the facts are in dispute, the federal court in habeas corpus must
hold an evidentiary hearing if the habeas applicant did not receive
a full and fair evidentiary hearing in state court, either at the
time of the trial or in a collateral proceeding." Id. at 312.
Townsend specified six situations which would necessitate a hearing
under this standard, including a catch-all category for "any
reason" the petitioner might not have received a full and fair
hearing on the issue before a state court. Id. at 313.
But Townsend was "significantly qualified by later case
law and congressional action[,] leaving the circuit courts in some
uncertainty" about when new federal factfinding for state prisoners
is appropriate. Bader, 488 F.3d at 487. There is debate post- 4
AEDPA over whether evidentiary hearings are still mandatory in some
circumstances, or whether they are simply within the district court
judge's discretion when not prohibited. Some courts have concluded
that Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), and AEDPA only
modified Townsend's six categories of mandatory hearings, leaving

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the rest of Townsend intact. E.g., Conaway v. Polk, 453 F.3d 567,
582, 590 (4th Cir. 2006); Insyxiengmay v. Morgan, 403 F.3d 657, 670
(9th Cir. 2005); Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir.
2002); Matheney v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001);
Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). And some
commentators agree. See 1 Hertz & Liebman § 20.1b ("Even after
AEDPA . . . Townsend's mandatory-hearing standards . . . continue[]
to govern all situations save those in which the petitioner's
procedural default accounts for the state courts' failure to
develop the material facts."); W. LaFave et al., Criminal Procedure
§ 28.7(c) (2d ed. 2004). Indeed, the Advisory Committee Notes for
Rule 8 of the Rules Governing § 2254 Cases, regarding evidentiary
hearings, suggest that Townsend still applies except to the extent
it is specifically superceded by § 2254(e)(2). The Third Circuit,
on the other hand, has read AEDPA as rendering all evidentiary
hearings purely discretionary. E.g., Campbell v. Vaughn, 209 F.3d
280, 287 (3d Cir. 2000) ("AEDPA, unlike Townsend and Keeney, does
not require that such a hearing be held. Instead, federal courts
have discretion to grant [an evidentiary] hearing or not.").
At the least, where not explicitly prohibited by § 2254,
federal habeas judges retain discretion to grant evidentiary
hearings. See Rules Governing § 2254 Cases, Rule 8(a); Schriro,
127 S. Ct. at 1939 (AEDPA did not change the "basic rule" that "the
decision to grant an evidentiary hearing [is] generally left to the

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sound discretion of district courts"); Guidry v. Dretke, 397 F.3d
306, 323 (5th Cir. 2005). But that discretion should be exercised
in a restrained manner. As the Supreme Court noted in Schriro,
Congress through AEDPA meant to curb delays and prevent retrials
before habeas courts. 127 S. Ct. at 1940; see also Pike, 492 F.3d
at 70. As a result, federal evidentiary hearings seeking to rehear
issues addressed by the state courts "ought to be the exception,
not the rule." Pike, 492 F.3d at 70.
We need not resolve today the question of whether federal
habeas evidentiary hearings are ever mandated. First, AEDPA is
clear on one point: an evidentiary hearing is prohibited if "the
applicant has failed to develop the factual basis of a claim in
State court proceedings" unless certain stringent exceptions apply.
28 U.S.C. § 2254(e)(2). It may seem odd to prohibit an evidentiary
hearing where the defendant did not present the facts to a state
court but not to prohibit one where he did. But the prohibition is
analogous to a procedural default rule, furthering the principles
of comity, finality, and federalism by requiring the prisoner to
present his claims fully before the state courts. Michael Williams
v. Taylor, 529 U.S. 420, 436-37 (2000).
Section 2254(e)(2)'s bar applies where there has been a
"lack of diligence" on the part of the petitioner or his counsel
before the state courts. Id. at 432. Teti demonstrated such a
lack of diligence. "Diligence will require in the usual case that

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the prisoner, at a minimum, seek an evidentiary hearing in state
court in the manner proscribed by state law." Id. at 437. Teti's
broad claims in his state court motion for a new trial did not
raise any specific question sufficient to require the state trial
judge to hold an evidentiary hearing. Cf. Bowersox, 311 F.3d at
921-22 (petitioner's request for an evidentiary hearing barred
under § 2254(e)(2) where petitioner had submitted only broad
allegations to the state court, in conflict with state's
requirement of factual allegations sufficient to warrant relief if
true). Further, Teti did not develop his argument for an
evidentiary hearing in his appeal to the MAC. Teti, 801 N.E.2d at
289. Section 2254(e)(2) does include narrow exceptions that would
excuse a petitioner's lack of diligence, but they clearly do not
apply to Teti's situation: there is no new rule of constitutional
law, nor any new evidence, much less any evidence that "could not
have been previously discovered through the exercise of due
diligence." 28 U.S.C. § 2254(e)(2)(A).
Second, even if Teti's request for an evidentiary hearing
were not barred by § 2254(e)(2) for lack of diligence, he fails on
another threshold matter, just as he did before the state trial
court. Akin to Rule 6's "good cause" requirement, a habeas judge,
before granting an evidentiary hearing, "must [first] consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would entitle the

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applicant to federal habeas relief." Schriro, 127 S. Ct. at 1940;
see also Townsend, 372 U.S. at 312.
The requirement is not so stringent that Teti must point
to specific facts he will establish that will entitle him to
relief, but rather that his allegations would entitle him to relief
and the hearing is likely to elicit the factual support for those
allegations. See, e.g., Insyxiengmay, 403 F.3d at 670. As the
Fourth Circuit noted in the context of a state collateral review
petition, "it would create a 'classic catch-22' if [a habeas]
defendant were obliged to submit admissible evidence to the
[habeas] court in order to be accorded an evidentiary hearing, when
the defendant is seeking the hearing because he cannot, without
subpoena power or mechanisms of discovery, otherwise secure such
evidence." Conaway, 453 F.3d at 584. But see Campbell, 209 F.3d
at 290 (petitioner needs clear evidence before a habeas court can
justify a new evidentiary hearing, at least where the state court
also held an evidentiary hearing and there is a sufficient basis in
the record for the state court's conclusions). On the other hand,
Teti must allege more than that he received inadequate assistance;
he must allege facts sufficient to overcome AEDPA deference to the
state court's factfindings and legal conclusion to the contrary.
See Schriro, 127 S. Ct. at 1940; Bader, 488 F.3d at 488.
The district court correctly considered this threshold
question, concluding that Teti had not given any "indication that

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an evidentiary hearing would give rise to 'clear and convincing
evidence' that petitioner's trial counsel suffered from a conflict
of interest." We turn, however, directly to the question of
prejudice. See Strickland, 466 U.S. at 697 ("[A] court need not
determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant . . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, . . . that course should be followed.").
Teti argues that he suffered prejudice because he was
unable to obtain a plea agreement. He does not, however, make the
argument that his attorneys failed to obtain a plea agreement
because of their conflicted loyalties. Nor would such an argument
be plausible, given that Keene ceased representing Lobello shortly
after, if not before, he began representing Teti. Teti instead
argues that McBride was unable to secure a plea agreement for him
because the Commonwealth was worried, once the conflict of interest
concern was aired, that such an agreement might be vulnerable on
appeal. The argument is hard to credit, as one would think a
conviction would have been more vulnerable on appeal. Regardless,
it is insufficient.
Teti might be arguing that he was harmed because of
procedural irregularities in the hearing before the state trial
judge. The relevant harm, however, is the one emanating from
Keene's alleged conflict of interest. If a federal evidentiary

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hearing could cure any procedural irregularities, Teti still has
not explained what harm he would hope to demonstrate beyond the
alleged plea agreement harm already discussed.
Teti has not argued sufficient harm to satisfy Mickens,
much less the prejudice needed to meet the more stringent standard
for establishing ineffective assistance where counsel has a
potential, rather than actual, conflict of interest. In short,
Teti "continues to assert he needs [an] evidentiary hearing to
factually develop his constitutional claims, but he has failed at
every level to make a factual showing (as opposed to conclusory
statements) as to why those claims merit development through the
crucible of an official hearing." Reynolds v. Bagley, 498 F.3d
549, 555 (6th Cir. 2007).
Because Teti provides no clear and convincing evidence
that the MAC's factual determinations were erroneous, and because
he has not adequately specified what facts he seeks to establish
through discovery or an evidentiary hearing, the MAC's factual
determinations stand, as does its ultimate conclusion under
§ 2254(d)(1) that Keene did not provide ineffective assistance of
counsel due to any conflict of interest. See Allison, 388 F.3d at
370-71.

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C. Remaining Claims
Teti also claims that McBride shared Keene's conflict of
interest and that he received ineffective assistance of counsel for
several additional reasons.
The district court reviewed de novo the claim that
McBride had a conflict. It did so on the basis that the MAC did
not expressly rule on this issue, although the issue had been
presented to it. See Fortini, 257 F.3d at 47. We need not address
whether this was the correct approach, for whether reviewed de novo
or deferentially, Teti's claim fails. If Keene did not have a
conflict, there was no derivative conflict in McBride, and like the
state court, we see no possible prejudice to Teti.
We rely on the district court's reasoning on the
remaining ineffective assistance claims against McBride. The
district court correctly applied § 2254(d)(1) to these claims, as
they were addressed by the state court. The district court
reasoned as follows: Because Teti's main defense was entrapment,
McBride's failure to move to sever the two indictments and his
allowance of the introduction of evidence on similar but uncharged
drug transactions could have been part of a reasonable defense
strategy to highlight that the same federal agent initiated all the
transactions. Further, a motion to sever would have failed, as
joinder was appropriate under state law. Finally, the relevant
information about Teti's state of mind was provided when Teti

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himself testified as to his drug dependency and depression; McBride
had promised nothing further in his opening statement. The MAC's
conclusion that none of these arguments established ineffective
assistance of counsel was therefore not an unreasonable application
of federal law under § 2254(d)(1). We agree.
Teti has been well and inventively represented on appeal.
The denial of the petition for habeas relief is affirmed.

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