Barbara Ouber v. Barbara Guarino

United States Court of Appeals
For the First Circuit
No. 01-2390
BARBARA OUBER,
Petitioner, Appellee,
v.
BARBARA GUARINO,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Linda A. Wagner, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Thomas F. Reilly, Attorney General, was on
brief, for appellant.
John Updegraph, with whom John Andrews, Robert M. Strasnick,
and Andrews & Koufman, LLC, were on brief, for appellee.
June 17, 2002

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SELYA, Circuit Judge. After a Massachusetts jury
convicted petitioner-appellee Barbara Ouber on a drug-trafficking
charge, she exhausted her state-court remedies and then sought
habeas corpus relief in the federal district court. That court
granted the writ. The Commonwealth's ensuing appeal raises nuanced
questions concerning the interplay between the proper resolution of
claims asserting ineffective assistance of counsel and the
deferential standard of review imposed upon federal habeas courts
by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (1996). Although our reasoning
differs significantly from the district court's as to the prejudice
component of the ineffective assistance test, we agree that habeas
relief is appropriate in the unique circumstances of this case.
I. BACKGROUND
To put matters into perspective, we recount the
background facts, the case's procedural history, the genesis of the
petitioner's conviction (including a précis of the evidence adduced
at trial), and what transpired thereafter.
The petitioner and her brother (Nick Tsoleridas) resided
at 9 Beth Lane in Hyannis, Massachusetts. On January 25, 1992,
Todd Shea, an undercover narcotics agent, accompanied by a
confidential informant (CI), went to that address. Tsoleridas
greeted them. He and the CI then went into the house. Shea was
told to wait in the car.

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The CI emerged alone. He and Shea waited for Tsoleridas
(a suspected drug dealer). After some time had elapsed, the two
men grew impatient and approached the front door. The petitioner
was standing just inside the entrance and Tsoleridas was descending
from upstairs. Shea said something to the effect that he wanted to
look at "the package" before turning over any money. Tsoleridas
escorted his visitors outside, saying that he did not want to
"deal" in the house. After the three men drove a short distance,
Tsoleridas sold Shea an ounce of cocaine for $1,100. He also gave
Shea his cell phone number and told him that he could supply much
larger quantities.
Tsoleridas delivered comparable amounts of cocaine to
Shea on February 19 and March 2. At approximately 4:40 p.m. on
March 8, Shea called Tsoleridas and indicated that he wished to
purchase ten ounces of cocaine. Tsoleridas tried to persuade Shea
to come to Boston to consummate the transaction. When Shea
demurred, Tsoleridas offered to supply two ounces to tide him over,
and told him to come to the parking lot of Bud's Country Lounge in
Hyannis where Tsoleridas's sister would exchange the drugs for
$2,000.
Shea testified that the transaction occurred as follows.
He reached the parking lot at the appointed time. He saw the
petitioner arrive, driving a Toyota. When he entered the
passengers' side of the Toyota, the petitioner identified herself

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as Tsoleridas's sister and handed him two sealed envelopes. Shea
asked if this was the same "coke" as before and if the envelopes
aggregated the agreed quantity. After receiving an affirmative
response, he gave the petitioner $2,000. She counted the money and
dropped the bills on the floor of the Toyota. Meanwhile Shea broke
the seals, withdrew a clear plastic bag from inside each envelope,
and inspected the contents. He then debarked, entered his own
vehicle, and departed with the contraband.
At the time of the transaction, the parking lot was
deserted except for two law enforcement officers who were observing
from a distance. They saw very little. One of them testified,
however, that he watched the Toyota enter the parking lot and leave
a few minutes after Shea exited the vehicle.
On March 13, Tsoleridas sold Shea the ten ounces of
cocaine that Shea had "ordered." Shortly thereafter, the
authorities searched the house at 9 Beth Lane and found drugs,
large sums of cash, and drug-related paraphernalia. The petitioner
was present during the search. When she asked to see the warrant,
however, the officers claimed to have lost it.
A Barnstable County grand jury subsequently indicted both
Tsoleridas and the petitioner for trafficking in cocaine. See
Mass. Gen. Laws ch. 94C, § 32E(b). The petitioner was tried on a
single charge, based upon her alleged complicity in the March 8
transaction. She stood trial alone (Tsoleridas having fled the

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country). Shea and the petitioner were the main witnesses, and
they gave sharply conflicting accounts as to what had occurred
inside the Toyota.
Shea's testimony was along the lines described above.
The petitioner, however, testified that she knew nothing of the
drugs, but had been coerced by her brother into doing what she
thought was a non-drug-related errand for him. Her version of what
happened in the Toyota differed from Shea's in no fewer than four
crucial respects. She denied having handed Shea the envelopes,
saying that he removed them from the right front seat. She also
denied that she and Shea had the conversation he described (or any
conversation relating, directly or indirectly, to cocaine). She
denied that she counted the money, instead saying that Shea threw
it at her (with the result that the bills fluttered to the floor of
the Toyota). And, finally, she denied that Shea opened the
envelopes or inspected their contents in her presence.
To buttress this account, the defense presented the
testimony of the petitioner's friend, Patricia Gisleson. Gisleson
testified that she was at the petitioner's home on March 8 and
overheard Tsoleridas and the petitioner arguing. Tsoleridas wanted
her to deliver two envelopes for him. After the petitioner
succumbed to Tsoleridas's bullying, Gisleson helped to move the
petitioner's Toyota out of the garage. In the process, she noticed
that Tsoleridas had placed two sealed envelopes on the front

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passenger's seat. The petitioner then drove away. Gisleson was
still at 9 Beth Lane when the petitioner returned. The petitioner
seemed very upset.
Due to the fact that the search party had been unable to
display a warrant, a suppression order issued. Thus, the
Commonwealth could not introduce the evidence seized in the house
search during its case in chief. After the petitioner testified,
however, the trial justice allowed the Commonwealth to introduce
that evidence for impeachment purposes. Following arguments of
counsel and the court's charge, the jurors could not reach
agreement and the trial justice declared a mistrial.
The Commonwealth elected to retry the petitioner. Much
the same proof scenario obtained at the second trial, except that
Gisleson's testimony was much more detailed. She stated, inter
alia, that Tsoleridas had slapped the petitioner when she initially
refused to do his bidding. She also elaborated on the reason that
Tsoleridas gave for wanting the petitioner to run the errand: the
man she was to meet owed him money, and she was to give the man
some drill bits and collect $2,000. Then, too, Gisleson
volunteered that the petitioner had told her that, when she met
Shea, he had thrown the money at her. Despite Gisleson's more
expansive testimony, the jury deadlocked once again.

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1The ground rules vis-à-vis the illegally seized evidence were
essentially the same as for the first two trials, that is, the
trial justice ruled that the Commonwealth could introduce evidence
from the search only if the petitioner testified (and then, only
for impeachment purposes).
-7-
This brings us to the third trial. Because of their
relationship to the issues on appeal, we describe the events that
played out during this trial in greater detail.
As the third trial began,1 the petitioner's counsel — the
selfsame lawyer who had represented her at the two earlier trials
— elected to deliver his opening statement on the heels of the
prosecutor's opening. In the course of this statement, the lawyer
promised — not once, but four times — that the petitioner would
testify. In the bargain, the lawyer emphasized the importance of
this testimony. He pointed out that the case revolved around the
petitioner's knowledge (or lack of knowledge) that the envelopes
delivered to Shea contained cocaine, and that her version of the
relevant events — particularly those that transpired in the car —
was very different from Shea's. Counsel's peroration drove home
these points. He told the jurors:
The case is going to come down to what
happened in that car and what your findings
are as you listen to the credibility and the
testimony of Todd Shea versus what you[r]
findings are as you listen to the testimony of
Barbara Ouber.
. . . .
. . . . You're going to hear a
difference of opinion as to whether [the
envelopes] were handed to Mr. Shea, whether he

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opened them in front of her; and as to the
conversation.
And you're going to have to decide the
truth and veracity of those two witnesses; and
that will be your ultimate decision in this
case.
As in the earlier trials, the Commonwealth's case in
chief hinged on Shea's testimony. His direct examination yielded
the version of the transaction described above. On cross-
examination defense counsel brought out a few inconsistencies
(e.g., that Shea originally had claimed that the envelopes were
unsealed when he received them whereas he now admitted that they
were sealed). Defense counsel also attempted to show that
Tsoleridas's actions on the occasion of Shea's first visit to 9
Beth Lane indicated that Tsoleridas was trying to conceal his drug
trafficking from the petitioner.
Up to a point, the defense case seemed similar to that
presented in the previous trials. The defense paraded a large
number of character witnesses before the jury, including an Eastern
Orthodox bishop and several priests from the petitioner's
community. These witnesses were unanimous in attesting to the
petitioner's good character and reputation for veracity. A number
of them did double duty, declaring that Tsoleridas was abusive and
domineering insofar as his sister was concerned. Gisleson also
testified along the same lines as at the second trial — although
she again added new details. These embellishments included
testimony that Tsoleridas had threatened to kill the petitioner if

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2During the second trial, the defense, apparently anticipating
that the previously suppressed evidence garnered during the
warrantless search would be used to impeach the petitioner, brought
out some information concerning that evidence on Gisleson's direct
examination. During the third trial, defense counsel spurned this
tactic, but the prosecution was able to bring before the jury, in
the course of Gisleson's cross-examination, essentially the same
information.
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she did not go to meet Shea; that the petitioner told Gisleson,
after she returned, that the man she met had tried to get her to
enter his vehicle; and that the petitioner never touched the
envelopes.2
The trial then veered dramatically from the previous
iterations. Although the petitioner had testified in both of the
earlier trials, this time around the defense rested without calling
her as a witness. Closing arguments followed. In his summation,
the petitioner's attorney apologized for not presenting "more of a
case" as he had promised, but opined that elements of Shea's and
Gisleson's testimony supported a claim that the petitioner lacked
knowledge of the envelopes' contents. The prosecutor responded
that Shea's testimony, taken as a whole, showed that the petitioner
was fully aware that the envelopes contained cocaine, and that
there was no reason to doubt his credibility. The prosecutor
contrasted this testimony with Gisleson's, which, he argued, had
been tailored to protect the petitioner.
Jury deliberations began that afternoon, but court
adjourned without a verdict. Deliberations resumed the next

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3The priests assisted in this endeavor, but the petitioner
claims, without contradiction, that the priests were merely
advocating for the position that the lawyer espoused.
-10-
morning. Sounding a familiar refrain, the jurors soon reported
that they were deadlocked. The trial justice urged them to
deliberate further, giving them a supplemental instruction based on
Commonwealth v. Rodriguez, 300 N.E.2d 192, 202-03 (Mass. 1973)
(suggesting suitable language for a "dynamite" charge). Later that
day, the jury found the petitioner guilty as charged.
The petitioner moved for a new trial based on
ineffectiveness of counsel. To understand the etiology of that
claim, we must explore the genesis of the petitioner's decision not
to testify. We glean the relevant facts, as did the state courts,
primarily from affidavits submitted by the petitioner and her trial
attorney in support of the ineffectiveness of counsel claim.
The third trial lasted only two days. According to the
lawyer, he first focused on the possibility of withholding the
petitioner's testimony on the evening of the first day (after the
Commonwealth had rested). A discussion took place in which several
priests and other friends of the petitioner participated. The
petitioner apparently wanted to testify, but the lawyer persuaded
her that it would be in her best interest not to do so.3 The
following day, the lawyer conferred privately with the petitioner,
but on the record (i.e., in the presence of a court reporter), so
that the petitioner could confirm that she had decided not to

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testify. The affidavits and the record of that lobby conference
make clear, however, that counsel's earlier promises to the jury
were not discussed, and that the petitioner was never advised that
her decision to refrain from testifying might be counterproductive
in light of those promises. This confluence of factors — the
decision to withhold the petitioner's testimony after having
emphasized its importance and having repeatedly promised the jurors
that they would hear it — constituted the essence of the
petitioner's ineffective assistance claim.
The state courts were unreceptive to the petitioner's
plea. The trial justice denied the motion for a new trial, and the
Massachusetts Appeals Court affirmed the trial justice's order.
See Commonwealth v. Ouber, 707 N.E.2d 408 (Mass. App. Ct. 1999)
(table). The appellate court concluded that the petitioner's
lawyer approached the question of whether she should testify
"cautiously" and advised her to remain silent because she likely
would suffer grievously in cross-examination. Because the attorney
was "working with an intrinsically weak defense," the court,
applying the test articulated in Commonwealth v. Saferian, 315
N.E.2d 878, 882-83 (Mass. 1974), found his performance
constitutionally acceptable. As a fallback, the court observed
that the attorney's advice did not prejudice the petitioner because
the evidence against her was solid and the jury had been instructed
not to draw a negative inference from her silence. The court made

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only a passing reference to the promises contained in counsel's
opening statement, characterizing them as neither "dramatic" nor
"memorable." The court added that, when the petitioner decided not
to testify, she knew what the consequences would be because she had
been through two trials and "[a]n inference about the jury's
possible attitude would not be remote or difficult."
In due course, the Massachusetts Supreme Judicial Court
(SJC) denied further appellate review. Commonwealth v. Ouber, 709
N.E.2d 1120 (Mass. 1999) (table). The petitioner then repaired to
the federal district court and prosecuted an application for a writ
of habeas corpus against the appropriate state correctional
official. See 28 U.S.C. § 2254. The district court found the
Appeals Court's decision to be an unreasonable application of the
standard articulated in Strickland v. Washington, 466 U.S. 668, 687
(1984). See Ouber v. Guarino, 158 F. Supp. 2d 135, 149 (D. Mass.
2001). In the district court's view, the state court improperly
focused on a peripheral matter — whether the petitioner was (or was
not) fully informed about her right to testify when she decided to
remain silent — and brushed aside the critical error in
professional judgment: making a promise to the jury and then
breaking it. Id. at 150. The court found it unreasonable that the
Appeals Court did not evaluate the attorney's advice in light of
the initial promises that had been communicated to the jury. Id.
at 153. On this basis, the court concluded that the lawyer's

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actions fell below the Strickland benchmark and that the state
court's application of Strickland's performance prong was
unreasonable. Id. at 154. To cap matters, the court found that
the state court had applied the wrong test as to prejudice and
concluded that prejudice should be presumed in this case. See id.
at 155. The court then went a step further and found, in the
alternative, that the lawyer's error was outcome-determinative.
Id. at 155-56.
Consistent with these findings, the district court
ordered the petitioner relieved from her sentence unless the
Commonwealth vacated her conviction and afforded her a new trial
within a stipulated time frame. See id. at 156. This appeal
ensued. The petitioner has remained free on bail pending the
outcome of the habeas proceeding.
II. THE LEGAL FRAMEWORK
As said, this appeal turns on the interplay between the
constitutional standard articulated in Strickland and the limited
review permitted by the AEDPA in habeas cases. We comment on each
of these elements.
A. The Strickland Doctrine.
The controlling principles for deciding ineffective
assistance of counsel claims are limned in Strickland. Under these
principles, a defendant alleging ineffective assistance of counsel
must establish two elements in order to prevail:

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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.
Strickland, 466 U.S. at 687.
As to the first element, "[j]udicial scrutiny of
counsel's performance must be highly deferential." Id. at 689.
The practice of law is not a mechanical exercise (like, say,
kicking a foot press), and an inquiring court must leave ample room
for variations in professional judgment. See id. By like token,
a reviewing court must not lean too heavily on hindsight: a
lawyer's acts and omissions must be judged on the basis of what he
knew, or should have known, at the time his tactical choices were
made and implemented. Bell v. Cone, 122 S. Ct. 1843, ___ (2002)
[2002 U.S. LEXIS 4020, at *24 (May 28, 2002)]; United States v.
Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Only if, "in light of
all the circumstances, the [alleged] acts or omissions of counsel
were outside the wide range of professionally competent
assistance," can a finding of deficient performance ensue.
Strickland, 466 U.S. at 690.
The second Strickland element ensures that, even if a
lawyer's performance is constitutionally unacceptable, relief will
be withheld unless the quondam client has demonstrated that "there
is a reasonable probability that, but for counsel's unprofessional

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errors, the result of the proceeding would have been different."
Id. at 694. While this level of prejudice may be presumed in a few
settings, id. at 692, that is the exception, not the rule. For the
most part, the petitioner must carry the devoir of persuasion and
prove that he was prejudiced, i.e., that his attorney's parlous
conduct may have altered the outcome of the case. See Smith v.
Robbins, 528 U.S. 259, 285-86 (2000). In this regard, we caution
that, although the possibility of a different outcome must be
substantial in order to establish prejudice, it may be less than
fifty percent. See Strickland, 466 U.S. at 693 (explaining that "a
defendant need not show that counsel's deficient conduct more
likely than not altered the outcome in the case").
B. The AEDPA Standard.
Under the AEDPA, a federal court may grant habeas relief
to a state prisoner only if the state court adjudication
(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).
A state-court decision fits within the "contrary to"
rubric if the state court either applies a legal rule that
contradicts an established Supreme Court precedent or reaches a

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different result on facts materially indistinguishable from those
of a controlling Supreme Court precedent. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). Where a relevant but not factually
congruent precedent exists, the state court need only apply a test
consistent with the one announced by the Supreme Court in order to
avoid the toils of section 2254(d)(1)'s "contrary to" clause.
The "unreasonable application" component of section
2254(d)(1) comes into play when the state court identifies the
correct legal principle, but unreasonably applies that principle to
the facts of the prisoner's case. Williams, 529 U.S. at 407-08.
The "unreasonable application" clause also encompasses situations
in which a state court either unreasonably extends a legal
principle derived from Supreme Court precedent to an inappropriate
context or unreasonably refuses to extend that principle to an
appropriate context. Id. In all events, a state-court decision
must be unreasonable, as opposed to merely incorrect, before a
federal court can grant habeas relief. Id. at 410.
The AEDPA also requires that the relevant legal rule be
clearly established in a Supreme Court holding, rather than in
dictum or in holdings of lower federal courts. Id. at 412. This
does not mean, however, that other federal court decisions are
wholly irrelevant to the reasonableness determination. "To the
extent that inferior federal courts have decided factually similar
cases, reference to those decisions is appropriate in assessing the

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reasonableness vel non of the state court's treatment of the
contested issue." O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.
1998). Reference to such cases may be especially helpful when the
governing Supreme Court precedent articulates a broad principle
that applies to a wide variety of factual patterns.
So it is here. The Strickland principles for deciding
ineffective assistance of counsel claims are "clearly established"
for purposes of the AEDPA. See Williams, 529 U.S. at 371-74.
Because the Supreme Court has yet to adopt more particularized
guidelines for ineffectiveness of counsel claims, it is helpful to
examine precedents from lower federal courts to determine how the
general standard applies to a particular set of facts. Although
such decisions are not themselves binding on a state court under
the AEDPA framework, see id. at 412, resort to them is appropriate
for the purpose of discerning the requirements of Strickland in
factually similar cases. See Mountjoy v. Warden, N.H. State
Prison, 245 F.3d 31, 35-36 (1st Cir. 2001).
Another category of state-court errors that may be
remedied on federal habeas review involves unreasonable
determinations of fact. See 28 U.S.C. § 2254(d)(2). Under this
standard, the state court's factual findings are entitled to a
presumption of correctness that can be rebutted only by clear and
convincing evidence to the contrary. Mastracchio v. Vose, 274 F.3d
590, 597-98 (1st Cir. 2001). But the special prophylaxis of

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section 2254(d)(2) applies only to determinations of "basic,
primary, or historical facts." Sanna v. DiPaolo, 265 F.3d 1, 7
(1st Cir. 2001). Inferences, characterizations of the facts, and
mixed fact/law conclusions are more appropriately analyzed under
the "unreasonable application" prong of section 2254(d)(1). Cf.
Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (stating that mixed
questions of fact and law do not fall within the purview of section
2254(d)(2)); Sanna, 265 F.3d at 7 (suggesting that only witness
credibility and recitals of external events qualify as basic or
primary facts for purposes of section 2254(d)(2)). Inasmuch as
"both the performance and the prejudice components of the
ineffectiveness inquiry are mixed questions of law and fact" for
the purposes of federal habeas review, Strickland, 466 U.S. at 698,
section 2254(d)(2) is of limited utility in this case.
III. ANALYSIS
Consistent with the Strickland paradigm, we divide our
analysis into two parts: performance and prejudice.
A. Performance.
At the heart of this appeal lies a broken promise (or,
more precisely put, a series of broken promises): defense
counsel's repeated vow that the jurors would hear what happened
from the petitioner herself. Thus, the error attributed to counsel
consists of two inextricably intertwined events: the attorney's
initial decision to present the petitioner's testimony as the

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centerpiece of the defense (and his serial announcement of that
fact to the jury in his opening statement) in conjunction with his
subsequent decision to advise the petitioner against testifying.
Taken alone, each of these decisions may have fallen within the
broad universe of acceptable professional judgments. Taken
together, however, they are indefensible. Neither the state court
nor the Commonwealth has managed to identify any benefit to be
derived from such a decisional sequence, and we are unable to see
the combination as part and parcel of a reasoned strategy. We
therefore conclude that, in the absence of unforeseeable events
forcing a change in strategy, the sequence constituted an error in
professional judgment. Cf. Anderson v. Butler, 858 F.2d 16, 19
(1st Cir. 1988) (finding a mistake, rather than a strategic choice,
where nothing could be gained from counsel's approach).
This assessment does not end our inquiry. The complex
dynamics of trial engender numerous missteps, but only the most
inexcusable will support a finding that counsel's performance was
so substandard as to compromise a defendant's Sixth Amendment right
to proficient legal representation. See, e.g., Nix v. Whiteside,
475 U.S. 157, 164-65 (1986) (quoting Strickland, 466 U.S. at 687).
To separate wheat from chaff — lapses of constitutional dimension
from garden-variety bevues — we must assess the gravity of the
error and then consider potential justifications for the attorney's
actions, given what he knew or should have known at each relevant

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moment in time. See Natanel, 938 F.2d at 309. And, finally,
because this case comes to us on habeas review, we must examine the
reasonableness of the state-court conclusion that counsel's
performance was not constitutionally deficient. We turn to these
interrelated tasks.
It is apodictic that a defendant cannot be compelled to
testify in a criminal case, see U.S. Const. amend. V, and criminal
juries routinely are admonished — as was the jury here — not to
draw an adverse inference from a defendant's failure to testify.
But the defendant has the right to testify in her own defense, and,
when such testimony is proffered, the impact on the jury can hardly
be overestimated. See Green v. United States, 365 U.S. 301, 304
(1961) ("The most persuasive counsel may not be able to speak for
a defendant as the defendant might, with halting eloquence, speak
for himself."). When a jury is promised that it will hear the
defendant's story from the defendant's own lips, and the defendant
then reneges, common sense suggests that the course of trial may be
profoundly altered. A broken promise of this magnitude taints both
the lawyer who vouchsafed it and the client on whose behalf it was
made.
The Commonwealth argues that a defendant's decision about
whether to invoke the right to remain silent is a strategic choice,
requiring a balancing of risks and benefits. Under ordinary
circumstances, that is true. It is easy to imagine that, on the

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4Counsel's subsequent actions reinforced this perception. He
called twenty-four character witnesses who testified as to the
petitioner's reputation for veracity. This procession set the
stage for her testimony by enhancing her credibility. When she did
not testify, this stage-setting quite likely intensified the
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eve of trial, a thoughtful lawyer may remain unsure as to whether
to call the defendant as a witness. If such uncertainty exists,
however, it is an abecedarian principle that the lawyer must
exercise some degree of circumspection. Had the petitioner's
counsel temporized — he was under no obligation to make an opening
statement at all, much less to open before the prosecution
presented its case, and, even if he chose to open, he most
assuredly did not have to commit to calling his client as a witness
— this would be a different case. See Phoenix v. Matesanz, 233
F.3d 77, 85 (1st Cir. 2000) (finding no ineffectiveness where, in
the absence of an express promise, counsel chose not to call a
potentially important witness).
Here, however, the circumstances were far from ordinary.
The petitioner's counsel elected to make his opening statement at
the earliest possible time. He did not hedge his bets, but,
rather, acted as if he had no doubt about whether his client should
testify. In the course of his opening statement, he promised, over
and over, that the petitioner would testify and exhorted the jurors
to draw their ultimate conclusions based on her credibility. In
fine, the lawyer structured the entire defense around the prospect
of the petitioner's testimony.4

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negative impact on the jury.
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In the end, however, the petitioner's testimony was not
forthcoming. Despite the fact that the lawyer had called the
petitioner to the stand in both prior trials, he did a complete
about-face. The lawyer states in his affidavit that he only
realized that keeping his client off the witness stand was an
option after the first day of trial. This realization came much
too late. Indeed, the attorney's delayed reaction is sharply
reminiscent of the situation in Anderson, in which we observed that
even "if it was . . . wise [not to have the witness testify]
because of the damaging collateral evidence, it was inexcusable to
have given the matter so little thought at the outset as to have
made the opening promise." 858 F.2d at 18.
The Commonwealth argues that defense counsel's mid-trial
decision should be excused as a justified reaction to unfolding
events. The theoretical underpinnings for this argument are sound:
unexpected developments sometimes may warrant changes in previously
announced trial strategies. See, e.g., Dutton v. Brown, 812 F.2d
593, 598 (10th Cir. 1987). But although we cannot fault counsel
for not guarding against the unforeseeable, the case at hand does
not fit that description. Here, everything went according to
schedule; nothing occurred during the third trial that could have
blindsided a reasonably competent attorney or justified a retreat
from a promise previously made. After all, the petitioner's lawyer

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had represented her during two previous trials for the same
offense; the prosecution's case in chief did not differ
significantly at the third trial; and the situation that confronted
the attorney when he changed his mind about the desirability of
presenting the petitioner's testimony was no different from the
situation that existed at a comparable stage of the earlier trials.
The Commonwealth suggests that the tenor of Shea's
testimony justified counsel's last-minute change of heart. Shea's
testimony, it says, was stronger and more consistent this time
around. The record belies this claim; it shows beyond hope of
contradiction that the new wrinkles in Shea's testimony were of
marginal significance. Some uncertainties were clarified on direct
examination in preparation for the defense's cross-questioning, but
this slight tightening-up of the prosecution's case should readily
have been anticipated. What is more, even if Shea's testimony was
less vulnerable than originally predicted, it remains a mystery
why, in response to adverse evidence that proves stronger than
expected, a lawyer should decide to abandon the only available
avenue of controverting it.
The Commonwealth has another arrow in its quiver: it
asserts that, had the petitioner testified, she would have been
heavily impeached (and, thus, the decision not to testify was a
legitimate one). Because of the damaging evidence that was
available for impeachment had the petitioner testified — the drugs

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5The fact of the matter is that the lawyer alluded to the
evidence that would be adduced for impeachment purposes in his
opening statement, cautioning the jury to keep in mind that such
evidence would be admitted only for a limited purpose.
6To be sure, Gisleson related some of what the petitioner
allegedly had told her about the events that occurred in the
parking lot. Her testimony, however, failed to contradict Shea's
on three crucial issues: whether there was any conversation
regarding the contents of the envelopes, whether he opened the
envelopes in front of the petitioner, and whether the latter
counted the money in his presence. At any rate, Gisleson's
testimony about the petitioner's statements was rank hearsay, and
-24-
and cash found in the search — this argument has a patina of
plausibility. The difficulty, however, is that counsel knew of
this sword of Damocles — the threat that the impeaching evidence
would be introduced — when he made his opening statement.5 Indeed,
that evidence was used to cross-examine the petitioner during the
two prior trials, and counsel appeared ready, willing, and able to
handle that contingency.
The Commonwealth next argues that enough of the
petitioner's story was presented through Gisleson that counsel
reasonably could have advised the petitioner not to testify. This
is little more than whistling past the graveyard. Gisleson was not
present when Shea and the petitioner met on March 8, and so could
only relate what she saw and heard before the petitioner left the
house and after the petitioner returned. Thus, Gisleson's
testimony, on its own, neither provided an adequate defense for the
petitioner nor fulfilled the explicit promises made to the jury in
the lawyer's opening statement.6

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did not afford the factfinders an opportunity to see and hear the
petitioner's detailed, first-hand account of the transaction.
-25-
In all events, Gisleson had testified at each of the
earlier trials, and defense counsel knew the substance of her
testimony when he promised the jury that the petitioner would
testify at the third trial. We add that, to the extent that
Gisleson's testimony at the third trial contained variations from
her two previous appearances as a witness, those variations do not
change the calculus. Some of them — such as the more detailed
account of her conversation with the petitioner after she (the
petitioner) returned from the parking lot — were probably helpful
to the defense, while others — such as her failure to explain that
Tsoleridas often made his sister run errands related to his
carpentry business — were perhaps detrimental. The inescapable
fact, however, is that a witness's testimony is rarely identical
two times running. Cf. Beachum v. Tansy, 903 F.2d 1321, 1326 (10th
Cir. 1990) (noting that "uncertainties and minor variations [are]
normal to the recollection of honest witnesses after lapse of
time"). Thus, the dispositive question must be whether, viewed as
a whole, the testimony may be characterized as materially
different. We think not: comparing Gisleson's testimony at the
second and third trials, the differences are minor and amounted to

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7This conclusion is also buttressed by defense counsel's
summation to the jury in which he made light of the added details
in Gisleson's testimony.
-26-
neither a qualitative change nor an unexpected event justifying an
abrupt switch in strategy.7
If more were needed — and we doubt that it is — the
lawyer's about-face regarding the need for his client's testimony
took place between the first and second day of trial. In other
words, he changed his mind before Gisleson even testified. This
chronology erases any suspicion that differences in Gisleson's
testimony may have prompted the reversal of strategy.
The short of it is that, without exception, the events
that occurred at the third trial should have been easily
foreseeable to competent counsel at the time he made his opening
statement. There were no surprises — and, thus, the lawyer's
tergiversation could not be excused by changed circumstances.
Compare, e.g., Magill v. Dugger, 824 F.2d 879, 887-88 (11th Cir.
1987) (finding ineffective assistance because counsel's strategy
failed to account for foreseeable testimony), with Drake v. Clark,
14 F.3d 351, 356 (7th Cir. 1994) (reaching the opposite conclusion
when counsel's strategy was frustrated by an unforeseeable
development).
Were we sitting in direct review, the foregoing analysis
would lead us to find counsel's performance constitutionally
unacceptable. In the exercise of habeas jurisdiction, however, we

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8Although the state court did not refer to Strickland by name,
it applied a similar standard articulated in Saferian, 315 N.E.2d
at 882-83. We have indicated that the Saferian standard is roughly
equivalent to the Strickland standard, see Scarpa, 38 F.3d at 7-8,
and the Massachusetts courts have noted that Saferian is at least
as favorable to the defendant as Strickland, see, e.g.,
Commonwealth v. Finley, 475 N.E.2d 381, 385 n.3 (Mass. 1985).
Thus, the state court applied a constitutionally proper performance
standard (and, accordingly, the state-court decision is not
"contrary to" clearly established Supreme Court precedent).
-27-
must take another step and evaluate the reasonableness of the
Appeals Court's contrary conclusion. See 28 U.S.C. § 2254(d)(1).
Strickland constitutes the established Supreme Court precedent, and
the state court purported to apply the functional equivalent of
Strickland's performance prong.8 Because it did so — and because
the facts of this case differ significantly from those of
Strickland — this case does not fit within the confines of section
2254(d)(1)'s "contrary to" clause insofar as counsel's performance
is concerned. Rather, the crux of the matter is whether the state
court applied Strickland's performance standard in an objectively
reasonable manner when it determined that the lawyer's performance
did not fall below the constitutional minimum.
We start this phase of our analysis with the text of the
state-court decision. The state court first absolved the attorney
from responsibility for failing to present the petitioner's
testimony because the petitioner herself possessed enough
sophistication to make such a decision. This determination misses
the point of the petitioner's constitutional claim. While a

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9We add, moreover, that if the attorney improperly counseled
his client to eschew appearing as a witness after having promised
the jury that she would testify, the fact that the client
"voluntarily" embraced this erroneous advice seems insufficient to
palliate the constitutional effects of the attorney's error. But
we need not probe this point too deeply, as the Commonwealth has
made no developed argument to the effect that the petitioner's
independent choice forecloses the ineffective assistance claim.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(noting that "issues . . ., unaccompanied by some effort at
developed argumentation, are deemed waived").
-28-
decision about whether to testify ultimately rests with the
defendant, see Rock v. Arkansas, 483 U.S. 44, 49-53 (1987), a
defendant's waiver of the right to testify must be knowing,
informed, and intelligent. This implies an understanding of the
consequences of the decision. See United States v. Manjarrez, 258
F.3d 618, 623-24 (7th Cir. 2001). Yet, the affidavits of both the
petitioner and her trial counsel make it clear that she was not
informed about the potential impact that the broken promises might
have on the jury should she decide not to testify.9
A second problem with the state-court decision lies in
its characterization of defense counsel's approach in his opening
statement. Despite the unambiguous, emphatic, and oft-repeated
comments regarding both the imminence and the salience of the
petitioner's testimony, the state court asserted that "counsel
approached cautiously the question of [the petitioner] testifying."
Here, however, the record makes manifest that trial counsel's
approach to the question of calling the petitioner as a witness —
making an unconditional promise, repeating it four times over, and

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-29-
then breaking it without justification — was the antithesis of
caution. Because the state-court's characterization is not borne
out by any plausible reading of the record, we deem it
unreasonable. See O'Brien, 145 F.3d at 25 (stating that if a
state-court determination is devoid of record support, it fits
within the "unreasonable application" prong of section 2254(d)(1)).
Finally, the state court offered only a single reason why
counsel might legitimately have changed his mind about calling the
petitioner to the witness stand, namely, that the barbed cross-
examination of Gisleson intimated that the petitioner would undergo
an even fiercer attack. That hypothesis does not withstand
scrutiny. For one thing, counsel reversed course before Gisleson
testified. For another thing, the Commonwealth's strongest attack
on Gisleson relied on her knowledge of the suppressed evidence.
Because Gisleson's cross-examination put some of that same
information before the jury, see supra note 2, her testimony
actually removed part of the rationale for not putting the
petitioner on the witness stand. In other respects, Gisleson's
testimony was no more severely impeached than in the previous
trials — trials in which both Gisleson and the petitioner had
testified and had held their own under withering cross-examination.
At the very least, the petitioner's counsel should have anticipated
the ferocity of potential cross-examination when he was deciding
what to tell the jury in his opening statement. The Appeals

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-30-
Court's attempted justification is, therefore, plainly
insupportable.
To sum up, counsel committed an obvious error, without
any semblance of a colorable excuse. There is simply no record
support for the state court's finding that the attorney's conduct
constituted a reasonable strategic choice. To the contrary, the
only sensible conclusion that can be drawn from this record is that
the attorney's performance was constitutionally deficient under
Strickland — and severely so. We hold, therefore, that the state-
court finding on this point constituted an unreasonable application
of the Strickland performance prong.
B. Prejudice.
The remaining issue involves the state court's
determination that counsel's performance, even if constitutionally
deficient, did not prejudice the petitioner. The district court
found fault with the state court's application of Commonwealth v.
Saferian, supra, positing that, insofar as prejudice is concerned,
Saferian articulates a standard contrary to Strickland. Ouber, 158
F. Supp. 2d at 154 (arguing that Saferian concentrates on whether
counsel's mistake deprived the accused of a substantial ground of
defense rather than whether the mistake altered the outcome of the
trial). We disagree with this assessment.
Although Strickland and Saferian do not employ identical
phraseology, we have described those variations as "minor" and have

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-31-
concluded that, for habeas purposes, Saferian is a functional
equivalent of Strickland. Scarpa, 38 F.3d at 7-8. That is the law
of the circuit. Moreover, that interpretation squares with the
relevant Massachusetts case law. While Saferian predated
Strickland, the SJC since has concluded that Saferian is at least
as solicitous of Sixth Amendment rights as Strickland. See
Commonwealth v. Urena, 632 N.E.2d 1200, 1202 (Mass. 1994);
Commonwealth v. Finley, 475 N.E.2d 381, 385 n.3 (Mass. 1985). In
light of these precedents, we are unable to sustain the district
court's conclusion that Saferian runs contrary to Strickland (and,
thus, that the Appeals Court's decision is contrary to settled
Supreme Court case law).
The district court committed another error when it ruled
that the state court's "no prejudice" decision was unreasonable
because prejudice must be presumed when an attorney inexcusably
fails to carry out an announced promise to present an important
witness. Ouber, 158 F. Supp. 2d at 155. To the extent that the
district court meant that the prejudice inquiry demanded by
Strickland is superfluous in such a case, that holding is not
grounded in any established Supreme Court precedent. To the
contrary, the Court repeatedly has emphasized the limited nature of
any exceptions to the general rule that a defendant must
demonstrate actual prejudice. See Mickens v. Taylor, 122 S. Ct.

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-32-
1237, 1246 (2002); Smith, 528 U.S. at 287; Strickland, 466 U.S. at
692.
As recently as May 28, 2002, the Court reiterated that
prejudice may be presumed only in three narrowly circumscribed
situations. Bell, 122 S. Ct. at ___ [2002 U.S. LEXIS 4020, at *20-
21]. First, a trial is presumptively unfair if the accused is
completely denied the presence of counsel at a critical stage of
the proceedings. Id. (citing, inter alia, Hamilton v. Alabama, 368
U.S. 52, 54 (1961)). Second, such a presumption is warranted if
"counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing." Id. at ___ [2002 U.S. LEXIS 4020,
at *21] (quoting United States v. Cronic, 466 U.S. 648, 659
(1984)). Third, prejudice may be presumed in the presence of
circumstances under which a competent lawyer would likely not be
able to render effective assistance. Id. (citing Powell v.
Alabama, 287 U.S. 45 (1932)).
In this case, the district court did not assert that any
of these exceptions apply, and, in all events, the record would not
support such an assertion. Instead, the district court appeared to
read Anderson as carving out a new exception. Ouber, 158 F. Supp.
2d at 154. Whether or not Anderson intended to do so is beside the
point, since the weight of recent Supreme Court precedent is to the
contrary. See, e.g., Bell, 122 S. Ct. at ___ [2002 U.S. LEXIS
4020, at *20-21]; Mickens, 122 S. Ct. at 1246. We have heeded the

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10We caution that the likelihood of a different outcome may not
always be synonymous with prejudice. See Strickland, 466 U.S. at
695 (noting that when acquittal would be likely only because of
improper collateral considerations a defendant should not reap the
benefit of a new trial). That caveat is not applicable in this
instance.
-33-
Court's clear message in the past, e.g., Scarpa, 38 F.3d at 11, and
we are constrained to heed it here. Because the circumstances of
this case do not fall within the contours of any of the three
recognized exceptions to the Strickland formulation, a presumption
of prejudice cannot be condoned.
Setting the misplaced presumption to one side, we turn to
the task of determining whether, on the facts of this case, the
error was prejudicial. For this purpose, an error generally is
considered prejudicial if there is a strong possibility that it
affected the outcome of the trial. See Strickland, 466 U.S. at
693-94. Consequently, we must consider, on whole-record review,
whether the trial might have ended differently absent the lawyer's
blunder. This is normally a difficult endeavor, but we are aided
here by a unique circumstance: this was the petitioner's third
trial, and the only substantial difference among those trials
relates to the omission of her testimony at the third trial. Thus,
unlike in the vast majority of cases, we have actual rather than
hypothetical reference points to guide our inquiry.10
When the petitioner testified, two different juries found
the prosecution's case so evanescent that they were unable to reach

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-34-
a verdict. Even without the petitioner's testimony, the jury in
the third trial was deadlocked for a time. Given these facts, we
are bound to conclude that the case was exceedingly close.
In a borderline case, even a relatively small error is
likely to tilt the decisional scales. See, e.g., Frey v. Fulcomer,
974 F.2d 348, 369 (3d Cir. 1992). The error here — failing to
present the promised testimony of an important witness — was not
small, but monumental. See, e.g., Anderson, 852 F.2d at 18-19; cf.
United States v. Gonzalez-Maldonado, 115 F.3d 9, 15 (1st Cir. 1997)
(finding reversible error when the trial judge initially agreed
that an important witness could testify, but later barred that
witness from testifying). The net result of the failure to call
the petitioner to the witness stand was that the jury heard only
Shea's version of what transpired in the car. Yet, the
petitioner's version would have been materially different with
respect to certain critical aspects, such as whether Shea opened
the envelopes in front of her and whether any verbal exchange
regarding the contents (e.g., the weight and quality of the
cocaine) occurred. Because these contradictions were not
introduced into evidence, the jury never had an opportunity to
assess the conflicting testimony or to weigh the petitioner's
credibility against Shea's. What is worse, counsel's belated
decision not to present the petitioner's testimony sabotaged the
bulk of his efforts prior to that time (and, in the process,

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-35-
undermined his own standing with the jury, thereby further
diminishing the petitioner's chances of success). Because the
error was egregious, we are fully persuaded that, but for its
commission, a different outcome might well have eventuated.
Accordingly, the case satisfies the prejudice prong of the
Strickland framework.
Under the AEDPA, an erroneous determination is not
necessarily an unreasonable determination. Williams, 529 U.S. at
410. Thus, it remains for us to address whether the state court's
finding of no prejudice was not only incorrect but also
unreasonable. The test is an objective one. See id. It focuses
on the state court's ultimate conclusion rather than on the
strength of the court's announced rationale. See Bui v. DiPaolo,
170 F.3d 232, 243-44 (1st Cir. 1999) (stating that "state courts
are not required to supply the specific reasons that a federal
court thinks are most persuasive for upholding the judgment"),
cert. denied, 529 U.S. 1086 (2000); accord Hurtado v. Tucker, 245
F.3d 7, 19 (1st Cir.), cert. denied, 122 S. Ct. 282 (2001);
O'Brien, 145 F.3d at 25. In other words, the hallmark of a
reasonable determination is the result reached by the state court,
not the ratiocination leading to that result.
Here, the Massachusetts Appeals Court's "no prejudice"
determination is not a credible outcome. That tribunal dealt with

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-36-
the question of prejudice vel non in a single paragraph, which
reads:
To omit to call a witness who has been
promised can, of course, be a serious mistake,
but whether it is such in any given case is
dependent on the circumstances, as the law
recognizes. [string citations omitted] The
promise here was not made dramatically or
memorably, as it was in [Anderson]. Counsel's
apology in closing was brief and subdued.
That the jury were not overcome by the
unfulfilled promise is indicated by the fact
that it took a [dynamite] charge to inspire
the verdict. The verdict itself found solid
support in the evidence. The judge charged
against any invidious implication from the
defendant's silence.
As can be seen, this paragraph contains several assertions — but
these assertions are either irrelevant or devoid of record support.
We explain briefly.
The state court opined that defense counsel's opening
promises were not "dramatic" or "memorable." We find it hard to
imagine, however, how the court could have reached that conclusion.
The attorney made the promises explicitly and repeatedly. He also
exhorted the jurors to base their ultimate decision on their
collective assessment of the contrasting accounts that would be
given by Shea and the petitioner, respectively. This call for a
credibility judgment was the crowning element of the lawyer's
opening statement and could not have failed to make an impression
on the jury. The single promise in Anderson, 858 F.2d at 17 — a
case in which counsel did not urge the jurors to rest their

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-37-
decision on the credibility of the witness who was promised but not
produced — was certainly far less dramatic and memorable.
The state court also implied that the alleged error was
inconsequential because the jury initially deadlocked and therefore
was not immediately overborne by the detrimental effect of the
broken promises. This argument effectively assumes that because a
blunder did not lead to a summary conviction, it was of negligible
effect. We believe that such an assumption is unreasonable; the
fact that the jury convicted the petitioner only after prolonged
deliberations and a supplemental "dynamite" charge necessarily
underscores the closeness of the case (and, therefore, the gravity
of any error).
The Appeals Court also posited that the petitioner's case
was "intrinsically weak," and that the jury's verdict rested on
solid evidence. The court, however, did not buttress these
conclusory statements with any specific findings, and they are
belied by the record. Indeed, the very fact that the first two
trials ended in hung juries is powerful proof that those statements
are insupportable. At each of those trials, the evidence marshaled
against the petitioner was so underwhelming that the jurors were
unable to reach a decision. The state court failed to consider
this fact, or to suggest why doing so might be unhelpful.
The remaining factors mentioned by the Appeals Court bear
little relevance to the prejudice inquiry. The fact that counsel's

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-38-
apology to the jury was "subdued" neither establishes the
insignificance of the original promises nor palliates the effect of
the mistake. The fact that the jury was advised not to draw a
negative inference from the petitioner's failure to testify is
likewise irrelevant; the attorney's mistake was not in invoking the
petitioner's right to remain silent, but in "the totality of the
opening and the failure to follow through." Anderson, 858 F.2d at
17.
To sum up, this was the petitioner's third trial and the
only salient difference between it and the two prior trials was the
absence of her testimony. This time around, defense counsel made
a promise, hammered it home, and then broke it. The first two
trials, at which the petitioner testified, offer a prime example of
how this trial likely would have ended in the absence of this
stunning error. We believe that it was unreasonable for the state
court not to have taken such obvious reference points into account.
Had it done so, it would have been bound to conclude that the case
was a close one in which counsel's egregious error was likely to
have made a dispositive difference.
That ends the matter. Since neither the state court's
opinion nor our own careful perscrutation of the record reveals an
objectively reasonable ground for the state court's "no prejudice"
determination, we are constrained to set it aside.

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-39-
IV. CONCLUSION
We need go no further. Had the state court applied
Strickland in an objectively reasonable manner, it would have been
bound to conclude that defense counsel's abandonment of the oft-
repeated promise that the petitioner would testify, enunciated in
his opening statement, amounted to ineffective assistance of
counsel in violation of the Sixth Amendment. The lawyer was
intimately familiar with the case before he made this promise
(having represented the petitioner in two prior trials on the same
charges). Yet, he staked his client's defense on the strength of
her testimony and then, with no discernible justification, changed
his mind and decided that she should not testify. No significant
change in circumstances occurred between the time of the lawyer's
opening statement and the time of his about-face. This was a
serious error in professional judgment, and the state court's
contrary determination represented an unreasonable application of
Strickland's performance prong.
Here, moreover, the prior trials serve as a meaningful
benchmark for determining the likelihood that the outcome of the
third trial was affected by the lawyer's mistake. Those trials,
neither of which was marred by the same error, produced results
materially different from the one reached in the third trial. Yet,
the state court inexplicably failed to undertake this comparative
analysis. We conclude, therefore, that the state court's

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-40-
harmlessness determination represented an unreasonable application
of Strickland's prejudice prong.
For these reasons, we affirm the judgment of the district
court. The petitioner shall be entitled to a writ of habeas corpus
unless the Commonwealth affords her a new trial within the period
prescribed.
Affirmed.

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