Derek Glacken v. THOMAS DICKHAUT, Superintendent, Souza Baranowski Correctional Facility

United States Court of Appeals
For the First Circuit
No. 09-1491
DEREK GLACKEN,
Petitioner, Appellant,
v.
THOMAS DICKHAUT, Superintendent,
Souza Baranowski Correctional Facility,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lipez, Stahl and Howard,
Circuit Judges.
Joseph J. Balliro, Jr., and Balliro & Mondano, on brief for
appellant.
Martha Coakley, Attorney General and Anne M. Thomas, Assistant
Attorney General, Criminal Bureau, on brief for appellee.
November 3, 2009

-- 1 of 11 --

Commonwealth v. Glacken, 883 N.E.2d 1228 (Mass. 2008). 1
The hearing occurred and the petition was denied before the 2
parties filed memoranda on the merits of the petition.
-2-
HOWARD, Circuit Judge. Following a jury trial in
Massachusetts Superior Court, Derek Glacken ("Glacken") was
convicted of first degree murder by reason of extreme atrocity or
cruelty in the June 1996 stabbing death of Francis Sullivan. He
was sentenced to life imprisonment. After Massachusetts' highest
court affirmed his conviction , Glacken sought habeas corpus relief 1
in federal district court. In his state-court appeal and in the
federal court, Glacken argued that the trial court erroneously
instructed the jury and that his attorney's performance was
constitutionally inadequate. Ruling from the bench after a hearing
in which only Glacken presented argument, the district court denied
the petition. Although we employ a different route to reach the 2
same destination, we affirm the judgment of the court below.
I.
The facts surrounding Glacken's conviction are not in
dispute. We summarize them here only insofar as necessary to this
opinion, borrowing extensively from the Supreme Judicial Court's
("SJC") opinion, where a more complete factual recitation can be
found. Glacken, 883 N.E.2d at 1230-31.
On the night of June 13, 1996, Glacken and his friend,
John Conte, had dinner and then visited several bars. At their

-- 2 of 11 --

-3-
final stop, they met Sullivan and his friend, Wendy Pizzolo. At
some point in the evening, Pizzolo told Conte that Sullivan was
gay. The four stayed until closing, during which time Conte and
Glacken had consumed approximately twelve beers each, and Sullivan
at least six.
The group then went to Conte's house. Because Conte was
romantically interested in Pizzolo, he asked Glacken to take
Sullivan for a walk so that Conte could be alone with Pizzolo.
Later, when Conte and Pizzolo went outside to look for the two men,
Conte found a blood-covered Glacken, crouching in bushes, saying,
"I just killed him." After continuing to look outside, Conte and
Pizzolo returned to the house, where they found Glacken alone,
behaving erratically, with blood on his back and neck. Soon
after, Glacken spoke by phone to a mutual friend of his and
Conte's, saying that he had stabbed Sullivan with Conte's knife
after Sullivan made sexual advances toward him.
Responding to a call from a neighbor, the police later
found Sullivan's body in the middle of the street. A trail of
blood indicated that he had traveled 266 feet from the point where
he was stabbed. He had been stabbed at least thirty times,
suffering wounds to his heart, lungs and liver. Conte's knife was
found in a nearby lake, where Glacken said he had thrown it. When
the police first arrived, Glacken told them that he and Sullivan
had been attacked by two men, but no evidence was found to support

-- 3 of 11 --

-4-
the assertion. Glacken was subsequently indicted on a charge of
first degree murder.
Glacken's defense theory at trial was that the stabbing
was a self-defense response to Sullivan's sexual advances. He did
not testify in his own defense, but a forensic psychologist
retained as a defense expert testified that Glacken had suffered
post-traumatic flashbacks as he broke free from Sullivan's
advances. According to this witness's testimony, the flashbacks
caused Glacken to see two faces in place of Sullivan's: a person
who tried to molest him as a youth, and a man who had beaten him a
month before the stabbing.
The Commonwealth sought a conviction for first degree
murder due to deliberate premeditation or extreme atrocity or
cruelty. Glacken asked the jury to return a manslaughter verdict,
on the grounds that he had used excessive force in self-defense.
The trial judge instructed the jury on first degree murder, second
degree murder, and manslaughter. With respect to Glacken's defense
theory, the court instructed the jury that if the Commonwealth
proved Glacken killed Sullivan with excessive force in self-
defense, then a manslaughter verdict should be returned. Although
the jury rejected the Commonwealth's theory of premeditation, it
convicted Glacken of murder by extreme atrocity or cruelty,
implicitly rejecting the self-defense theory.

-- 4 of 11 --

The entire instruction was spread over sixty transcript 3
pages. The disputed sentence was part of the following summary:
So, to sum up, in order to prove murder, the Commonwealth
is required to prove beyond a reasonable doubt that the
defendant committed an unlawful killing with malice. If,
after your consideration of all the evidence, you find
that the Commonwealth has proven beyond a reasonable
doubt the elements of murder, except that the
Commonwealth has not proven beyond a reasonable doubt the
absence of mitigating circumstances of heat of passion or
sudden combat, then you must find the defendant not
guilty of murder and you should return a verdict of
guilty of manslaughter. If you find that the
Commonwealth has proven that defendant unlawfully killed
the deceased using excessive force in self-defense, then
you must find the defendant not guilty of murder, and you
should return a verdict of guilty of manslaughter.
Finally, if the Commonwealth has failed to prove that the
defendant unlawfully killed Francis Sullivan, then your
verdict shall be not guilty.
-5-
At issue is the following statement the trial judge made
to "sum up" the possible verdicts: "If you find that the
Commonwealth has proven that the defendant unlawfully killed the
deceased using excessive force in self-defense, then you must find
the defendant not guilty of murder, and you should return a verdict
of guilty of manslaughter." Glacken argues that this sentence
effectively deprived him of his affirmative defense by failing to
instruct the jury that it may not reject self-defense evidence
simply because it was offered by the defendant. In other words,
the quoted portion of the instruction allegedly directed the jury
to look only at the evidence of self-defense offered by the
prosecution. Glacken did not object to the instruction at trial.3

-- 5 of 11 --

Procedurally speaking, the SJC was reviewing the trial 4
court's denial of Glacken's motion for a new trial, based on the
ineffective assistance claim.
-6-
In his state-court appeal, Glacken raised both the jury
instruction issue and an ineffective assistance of counsel claim
alleging that he was not advised of his right to testify. As
noted, the SJC affirmed the conviction. Because Glacken did not
object to the instruction at trial, the SJC reviewed it under a
"substantial miscarriage of justice" standard. Glacken, 883 N.E.2d
at 1232 (citing Commonwealth v. Niemic, 696 N.E.2d 117 (Mass.
1998)). In rejecting Glacken's ineffective assistance of counsel
claim, the SJC affirmed the trial court's balancing of statements 4
made by defense counsel during trial that indeed he had advised
Glacken of his rights against a conflicting affidavit submitted by
Glacken seven years after the trial stating the opposite.
II.
Glacken's habeas petition claimed that the quoted
instruction violated his due process rights to a fair trial by
precluding the jury from considering his defense and that his trial
counsel's performance was constitutionally deficient. Under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996), a federal court shall
not grant a petition for habeas relief with respect to any claim
that was adjudicated on the merits in State court proceedings
unless the state court decision: 1) “was contrary to, or involved

-- 6 of 11 --

-7-
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or 2) “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)(1)-(2); see O'Laughlin v. O'Brien 568 F.3d 287, 298 (1st
Cir. 2009).
The district court orally rejected Glacken's due process
claim, stating that AEDPA prevented consideration of Glacken's
theory because it depended on an "evolving concept" of due process,
rather than on any particular Supreme Court holding. The district
court also found that it was bound by the SJC's finding that trial
counsel's performance met constitutional standards. We review de
novo the district court's decision to grant or deny a habeas
petition under 28 U.S.C. § 2254. Healy v. Spencer, 453 F.3d 21, 25
(1st Cir. 2006).
III.
Before turning to the substance of Glacken's petition, we
first address the government's argument that habeas review is
precluded because the jury instruction claim was procedurally
defaulted. It is well-settled that we may not consider state court
decisions on habeas review if the decision rests on independent and
adequate state grounds. Obershaw v. Lanman, 453 F.3d 56, 67-68
(1st Cir. 2006)(citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)). One such ground is a state court's finding that a claim

-- 7 of 11 --

The failure to object is not mentioned within the section of 5
Glacken's appellate brief addressing ineffective assistance of
counsel.
-8-
is forfeited due to a failure to object at trial, which constitutes
an independent and adequate ground "so long as the state court
consistently applies its contemporaneous objection rule and has not
waived it in the particular case by basing the decision on some
other ground." Lynch v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006).
Here, we have no trouble determining that the SJC consistently
applies the rule that contemporaneous objection to a jury
instruction is necessary to avoid forfeiture. See Niemic, 696
N.E.2d at 120; Commonwealth v. Wright, 584 N.E. 2d 621, 624 (Mass.
1992); see also Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir. 2002)
("The SJC regularly enforces the rule that a claim not raised is
waived."). Equally clear is that the SJC did not waive this rule
here. Glacken, 883 N.E.2d at 1232.
The default may be excused only if the petitioner can
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or else demonstrate that
the failure to consider the claim will result in a fundamental
miscarriage of justice. Obershaw, 453 F.3d at 68. Glacken's brief
to us, however, does not address the default issue, other than in
a single line in a footnote suggesting that the failure to object
to the instruction at trial was the result of ineffective
assistance of counsel. To the extent this suggestion is an 5

-- 8 of 11 --

Glacken quotes extensively from Waddington v. Sarasaud, 129 6
S.Ct. 823 (2009), to support his jury instruction claim. That case
is inapposite, however, as it contains no suggestion of procedural
default.
-9-
attempt to demonstrate "cause" for the default, it is plainly
insufficient. See United States v. Zannino, 893 F.2d 1, 17 (1st
Cir. 1990) (issues adverted to in a "perfunctory manner,"
unaccompanied by some effort at developed argumentation are deemed
waived).
Similarly, Glacken makes no attempt to demonstrate that
default would result in a miscarriage of justice, a "narrow
exception to the cause and prejudice imperative seldom to be used,
and explicitly tied to a showing of actual innocence." Burks v.
Dubois, 55 F.3d 712 (1st Cir. 1995); see Simpson v. Matesanz, 175
F.3d 200, 210 (1st Cir. 1999) (petitioner must show probability
that no reasonable juror would have convicted him). Accordingly,
we conclude that Glacken's jury instruction claim was procedurally
defaulted, and we do not reach its merits.6
IV.
Glacken's claim of ineffective assistance of counsel is
premised on allegations that his trial counsel interfered with his
ability to testify by not only failing to inform him of his right
to do so, but also telling him that he would not testify.

-- 9 of 11 --

-10-
It is beyond dispute that a defendant's right to testify
in his own defense cannot be waived by counsel acting alone. Owens
v. United States, 483 F.3d 48, 58 (1st Cir. 2007). While Glacken's
brief relies on the affidavit he submitted to the state court in
support of his motion for new trial, he makes no mention of the
contrary statements made by defense counsel at trial. The SJC
concluded that "The [trial] judge appropriately relied on trial
counsel's representations at the trial that he had advised his
client of his right to testify. The judge also acted well within
his discretion when he chose not to credit the defendant's
affidavit." Glacken, 883 N.E.2d at 1234-35
In addition, Glacken does not cite Strickland v.
Washington, 466 U.S. 668 (1984), or any other case setting out the
legal standard for evaluating ineffective assistance claims. Nor
does he place the SJC's actions in the context of our limited power
of review, failing to indicate how the SJC's decision on this issue
was contrary to, or an unreasonable application of, clearly
established federal law; or was based on an unreasonable
determination of the facts. While we could consider this claim
waived due to lack of developed argument, see Zannino, 893 F.2d at
17, we briefly address its substance. Glacken's argument boils
down to restating that two parties -- he and his attorney --
provided differing versions of events. In such a case, "the state
trial judge's implicit credibility determinations, adopted by [an

-- 10 of 11 --

-11-
appellate court], are exactly the type of factual determinations to
which we defer, at least short of any indication of serious error."
Teti v. Bender, 507 F.3d 50, 59 (1st Cir. 2007)(citing Rice v.
Collins, 546 U.S. 333, 341-42 (2006)). No more need be said about
Glacken's futile argument.
The judgment of the district court is affirmed.

-- 11 of 11 --