Neil Niland v. Timothy Hall

United States Court of Appeals
For the First Circuit
No. 01-1739
NEIL NILAND,
Petitioner, Appellant,
v.
TIMOTHY HALL
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez, Circuit Judge,
and Rosenn*, Senior Circuit Judge,
Robert Sheketoff, with whom Sheketoff & Homan was on brief, for
appellant.
Cathryn Neaves, Assistant Attorney General, Commonwealth of
Masachusetts, with whom Thomas F. Reilly, Massachusetts Attorney
General, was on brief, for appellee.
February 8, 2002
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*Of the Third Circuit, sitting by designation.

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ROSENN, Senior Circuit Judge. In 1994, the appellant, Neil
Niland, shot and killed his girlfriend, Melissa Herlihy, while she was
asleep in bed in their apartment. Niland claimed he killed her
accidentally while cleaning his rifle. The Commonwealth of
Massachusetts had thought otherwise and a Middlesex County grand jury
indicted him for first degree murder and unlawful possession of a
rifle. Niland was tried to a jury which found him guilty of second
degree murder and unlawful possession of a rifle. The trial judge
sentenced him to a mandatory life term. The Massachusetts Appeals
Court affirmed his conviction and the Massachusetts Supreme Judicial
Court denied him further review. Commonwealth v. Niland, 699 N.E.2d
1236 (Mass. App. Ct.), review denied by, 707 N.E.2d 366 (1998).
In October 1999, Niland turned to the federal courts for
relief and timely filed a habeas corpus petition pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the District of
Massachusetts. The district court dismissed the petition. Niland
timely appealed and obtained a certificate of appealability from the
district court. We affirm the order of the district court.
I.
The facts are well known to the parties and we briefly refer
to those pertinent to the issues before us. At Niland’s trial in the
state court, the Commonwealth proved that he shot Herlihy, the

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unmarried mother of his two and one-half month old daughter, in the
face with a rifle while she was asleep. Niland maintained that the
shooting was an accident.
Leonard Atkins, the Commonwealth’s medical examiner,
performed the autopsy. He testified that in his opinion the defendant
discharged the rifle when the muzzle of the gun was two feet or less
from the victim’s face. He further testified that the bullet entered
the victim’s right cheek bone area and lodged in the skull, leading to
her death. In addition, Philip Langon, a sergeant with the state
police ballistics unit, after conducting a pattern test, testified that
he was of the opinion that the rifle’s muzzle was less than twelve
inches from the victim’s cheek when fired. In his defense, Niland
called one witness, David LaMagna, a forensic specialist. He testified
that the rifle that fired the fatal shot was not appropriate for a
novice, had a fairly light trigger pull, and that the trigger guard was
only a limited safety measure.
On his appeal to the Massachusetts Appeals Court, Niland
raised a number of issues, particularly error in the trial judge’s
instructions to the jury. The court carefully considered the jury
instructions, dwelling at length on those pertaining to (1) malice and
(2) consciousness of guilt. The court noted that the defendant argued
that the jury instructions on the third prong of malice and involuntary
manslaughter were erroneous and diluted the distinction between murder

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and involuntary manslaughter. It specifically scrutinized the trial
judge’s definition of the third prong of malice as “an unexcused intent
to do an act creating a plain and strong likelihood that death or
grievous bodily harm will follow.” Niland, 699 N.E.2d at 1240. The
court agreed with Niland that this was not a correct instruction
because of the inclusion of the alternate phrase “or grievous bodily
harm will follow.” Id.
However, because the defendant failed to object at trial, the
court limited its review to whether the judge’s instructions gave rise
to a substantial risk of a miscarriage of justice. The court concluded
that they did not, and considered as a whole, had adequately explained
the concept of malice aforethought. Id. at 1240-41. With respect to
the inclusion of the erroneous phrase “grievous bodily harm” in the
malice instruction, the court found that this language was harmless
error, because the evidence did not warrant a finding of a risk of harm
less than a strong likelihood of death. Id. at 1240.
With respect to the consciousness of guilt instruction, the
Massachusetts Appeals Court also painstakingly reviewed this
instruction. The court noted that the defendant gave three different
versions to the police of what took place in the bedroom. The trial
judge instructed the jury on consciousness of guilt as follows:
You have heard evidence suggesting that the
defendant Neil Niland may have intentionally made
certain false statements to the police before and

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after his arrest for these offenses. If the
Commonwealth has proved [sic] that the defendant
did give false statements to the police, you are
permitted to consider whether such actions
indicate feelings of guilt by the defendant, and
whether, in turn, such feelings of guilt might
tend to show actual guilt on these charges. You
are not required to draw such inferences, and you
should not do so unless they appear to be
reasonable in light of all the circumstances of
this case.
If you decide that such inferences are
reasonable, it will be up to you to decide how
much importance to give them. But you should
always remember that there may be numerous
reasons why an innocent person might give false
statements to the police. Such conduct does not
necessarily reflect feelings of guilt. Please
also bear in mind that a person having feelings
of guilt is not necessarily guilty in fact, for
such feelings are sometimes found in innocent
people.
Finally, remember that standing alone, such
evidence is never enough by itself to convict a
person of a crime. You may not find a defendant
guilty on such evidence alone, but you may
consider it in your deliberations along with all
of the other evidence that has been admitted in
this case.
The defendant argued in the Massachusetts appellate court
that because the presence or absence of malice was a central issue at
trial, the jury should have been given an explicit instruction that
consciousness of guilt evidence could only be used as proof that an
unlawful killing had been committed, and not as proof of murder.
Although the court recognized that the trial judge did not expressly
instruct the jury that it could not infer malice aforethought from the

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evidence of consciousness of guilt, it concluded that “the later
instructions on malice aforethought adequately informed the jury of the
distinction.” Id. at 1239. The court was persuaded that in light of
the entire charge and the other evidence of guilt, the jury was able to
consider the consciousness of guilt evidence “and decide whether to
weigh it with other evidence of guilt.” Id. Moreover, the court noted
that the trial judge clearly instructed the jury that the Commonwealth
had the burden of proving that the discharge of the rifle was not
accidental. Id. at 1240. The court was firmly convinced that there
was no likelihood that the jury understood that it could convict the
defendant solely on the consciousness of guilt evidence. Id. The
court was satisfied that the instruction was correct under
Massachusetts law.
II.
Having exhausted his state remedies, Niland endeavored to
carve out of his essentially state law contentions a federal
constitutional issue. He petitioned the United States district court
for a writ of habeas corpus. First, he challenged the Massachusetts
state court judgment on the ground that it violated his rights under
the Due Process Clause of the Fourteenth Amendment to the United States
Constitution when it erroneously defined an element of the offense and
when it held that this claim had been procedurally defaulted. The

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federal court reviewed Niland’s argument and gave the trial court’s
instructions to the jury the same careful examination given by the
Massachusetts appellate court. Again, the Commonwealth responded that
Niland had procedurally defaulted with respect to the malice jury
instruction and it was, therefore, unnecessary for the district court
to determine whether the Massachusetts Appeals Court correctly decided
his appeal. The district court, however, chose not to examine the
Commonwealth’s claim of procedural default but alternatively to review
Niland’s claims of denial of due process.
The district court meticulously scrutinized the instructions
of the trial judge to the jury and reviewed the decision of the
Massachusetts Appeals Court. Under established law of the Supreme
Court of the United States, Niland carried the burden of showing that
the erroneous “grievous bodily harm” phrase “so infected the entire
trial that the resulting conviction violates due process, not merely
whether the instruction is undesirable, erroneous, or even universally
condemned.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Capp
v. Naughten, 414 U.S. 141, 146-47 (1973)). Niland produced no evidence
that the erroneous phrase infected the entire trial. The challenged
instruction should not be considered in “artificial isolation, but must
be viewed in the context of the overall charges.” Id. at 146-47. This
is the course followed by the Massachusetts Appeals Court which
concluded that the third-prong jury instructions did not create a

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substantial miscarriage of justice after reviewing the instructions as
a whole. Niland, 699 N.E.2d at 1241. The district court, too,
concluded that the trial judge committed harmless error because
[s]hooting a person in the face, as in this case,
is so likely to cause death, rather than merely
grievous bodily harm, that we agree with the
[Massachusetts Appeals Court] which, quoting
Commonwealth v. Caines stated that “[a]
reasonable jury could not fail to recognize that
the defendant’s [shooting] created a clear and
plain likelihood of death.”
Next, the district court reviewed Niland’s claim that the
trial judge erred in his instruction as to the consciousness of guilt.
It rejected Niland’s argument that the instruction relieved the
Commonwealth of its burden to prove all elements of the offense and,
thus, violated his due process rights under Francis v. Franklin, 471
U.S. 307 (1985). It distinguished Francis which it held turned on the
existence of a mandatory presumption which shifted the burden of
persuasion to the defendant, thereby relieving the state of its burden
to prove all elements of the crimes. It, therefore, concluded that the
absence of such a mandatory presumption here made Francis inapplicable.
In addition to the instruction at issue, the district court observed
that the trial judge gave clarifying language that did not contradict
other portions of the instructions. The court, therefore, denied the
writ and dismissed the petition.

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III.
On his appeal from the district court to this court, Niland
raises the same issues as in the district court but maintains that the
district court erred in dismissing his petition.
The petition for habeas corpus having been filed after the
effective date of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), our review of Niland’s claims is governed by that
statute. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA imposes
“a new constraint on the power of a federal habeas court to grant a
state prisoner’s application for a writ of habeas corpus with respect
to claims adjudicated on the merits in state court.” Williams v.
Taylor, 529 U.S. 362, 412 (2000).
Under § 2254(d)(1), the writ may issue only if
one of the following two conditions is satisfied
– the state-court adjudication resulted in a
decision that (1) “was contrary to . . . clearly
established Federal law, as determined by the
Supreme Court of the United States,” or (2)
“involved an unreasonable application of . . .
clearly established Federal law, as determined by
the Supreme Court of the United States.”
Id. As the Williams decision emphasizes, an incorrect state-court
decision is not the equivalent of an unreasonable state-court
determination. Id. at 410. Therefore, a federal habeas court may not
issue the writ “simply because the court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id. at 411.

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Furthermore, under the AEDPA, state-court determinations of factual
issues “shall be presumed to be correct,” unless the petitioner rebuts
the presumption “by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000).
Chief Judge Boudin reminded us in Fortini v. Murphy that
AEDPA adopts a strict standard of review by federal courts to a claim
adjudicated on the merits in state court proceedings. 257 F.3d 39, 47
(1st Cir. 2001). Niland contends that the state court never addressed
his constitutional claim on the merits and therefore, the strict
deferential standard of review is inapplicable. Id. (holding that de
novo standard of review applies on federal claims never addressed by
state courts). We disagree with Niland. A review of the state
appellate court’s opinion reveals an exhaustive discussion of the
claims he raises in this court. All of Niland’s constitutional claims
were thoroughly reviewed on their merits and “AEDPA imposes a
requirement of deference to state court decisions.” Id.
We have also reviewed the jury instructions in this case.
We agree with the district court that Niland’s claims with respect to
the elements of malice and the consciousness of guilt instructions lack
merit. We also agree with the district court that the decision of the
Massachusetts Appeals Court was not unreasonable within the meaning of
AEDPA. Niland has not shown that the state-court decision sustaining
the legality of the instructions is “contrary to, or involved an

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unreasonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d)(1).
Accordingly, no error having been committed by the district
court in its denial of the writ and in its dismissal of the petition,
the order of the district court is
affirmed.

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