Kirwan v. Spencer

631 F.3d 582

Scott D. KIRWAN, Petitioner, Appellant,

v.Luis SPENCER, Superintendent, Respondent, Appellee.

No. 09–2438.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 2010.Decided Jan. 28, 2011.

Stephen Paul Maidman, for appellant.Argie K. Shapiro, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief for appellee.Before TORRUELLA and LIPEZ, Circuit Judges, and SMITH,^* District Judge.TORRUELLA, Circuit Judge.

After a jury trial in the Massachusetts Superior Court, Scott D. Kirwan was convicted of first-degree murder and sentenced to life in prison for killing Steven Meagher. Kirwan appealed, and the Massachusetts Supreme Judicial Court (“SJC”) affirmed his conviction. See Commonwealth v. Kirwan, 448 Mass. 304, 860 N.E.2d 931, 943 (2007).

Kirwan filed a petition for a writ of habeas corpus in the federal district court, which the court denied, adopting without further explanation the magistrate judge's report and recommendation. See Kirwan v. Spencer, No. 08–10651, slip op. at 68 (D.Mass. Aug. 25, 2009). Kirwan then applied for a certificate of appealability (“COA”) as to the denial of the writ. The district court granted the COA as to two of the grounds in Kirwan's petition. Thus, the following issues are on appeal: (1) whether certain remarks by the prosecutor during closing argument deprived Kirwan of his rights to a fair trial and due process, and (2) whether trial counsel's failure to object to, and seek curative instructions following, the prosecutor's allegedly improper remarks deprived Kirwan of his right to effective assistance of counsel.

I. Background

A. The Night of Meagher's Death¹

On July 2, 1999, at approximately 11:00 p.m., Kirwan and his friend Brian Perry walked from the apartment building in which they both lived to a crowded bar across the street. There, Kirwan had several brief encounters with Meagher. The first, essentially a continuation of an earlier argument, ended when Perry told Kirwan and Meagher to “grow up” and “shake hands.” During the second, an angry Kirwan told Meagher that they could “take it outside,” but Meagher walked away. Between the second and third encounters, Kirwan left the bar for approximately fifteen minutes, ostensibly to record a pay-per-view movie that was scheduled to be televised at midnight. Before Kirwan left the bar to record the movie, he spoke with Perry. As discussed below, Kirwan mentioned “something about a shank” to Perry. When Kirwan returned, Meagher was still at the bar. During their third encounter, Meagher approached Kirwan and they argued. Shortly thereafter, Kirwan told Perry that he was worried about Meagher and another man, Leo Purcell, who was with Meagher. As Meagher left the bar, he and Kirwan again exchanged words. Kirwan then mentioned to Perry that he was worried that he was going to have to fight Meagher and Purcell. Approximately ten minutes later, Meagher came back into the bar and argued briefly with Kirwan.

At approximately 1:00 a.m., Kirwan and Perry left the bar. Outside, Meagher drove his truck alongside Kirwan, argued with him, and then parked his truck. Kirwan and Meagher approached each other in the street. Kirwan punched Meagher three times. The third time, he struck the front of Meagher's chest and had a shiny, metallic object in his hand. Kirwan then yelled that he was going to get a gun and walked toward his home, approximately fifty feet away. Meagher walked approximately thirty feet back toward his truck before falling flat on his face. Police and an ambulance arrived and Meagher was brought to a hospital, where he died. The cause of death was blood loss caused by a knife wound in his chest. A search of the scene later yielded a small knife with blood on it. The DNA of the blood on the knife matched Meagher's DNA.

B. The Jury Trial

At trial, the prosecutor solicited testimony from Perry regarding the statements that Kirwan made before leaving the bar, ostensibly to record the pay-per-view movie. Perry and the prosecutor had the following colloquy:

Q. Before [the defendant] left, Mr. Perry, did he make a statement to you about getting some type of weapon?

A. He really didn't say it was a weapon. He said something about a shank.

Q. Tell us exactly what he said, would you?

A. I couldn't exactly tell you what he said. He just said something about a shank. He was worried about the two guys [sitting with his former girlfriend] on the other side, and he was worried about wanting to pick up a shank or something like that.

Q. So, he said he was going home?

A. He was going home for the taping, yes.

Q. Said he was going to get a shank?

A. He just said something about a shank.

Q. How many times did he say it to you?

A. I remember twice.

Q. Did he say it differently the second time?

A. No.

Q. What did he say the second time, exactly, if you recall?

A. Like I said, I had a lot to drink that night, and I would say he just mentioned something about a shank. I didn't even know what it was.

Q. Never seen a prison movie?

[Defense Counsel]: Objection.

The Court: Yes, sustained.

Q. After he said this about the shank, did you see him leave?

A. He left before 12:00, yes.

In his closing argument, the prosecutor relied in large part upon Perry's testimony to establish premeditation. The prosecutor stated a number of times, using various terms, that Kirwan went home to get a weapon.² In addition, his closing argument included a quotation of a statement that Kirwan supposedly made to Perry about the shank:

It is the most critical piece of evidence, ladies and gentlemen, that statement to Brian Perry, “ I'm going to go get my shank,” not once, not twice, then going home and arming himself, because that shows beyond any reasonable doubt what his intentions were.

Brian Perry can tell you all he wanted he didn't understand what that was about. Again, draw on your collective experience and common sense. I'm going to get my shank, but it gets better than that, because if you look at the evidence on the whole, he comes back, which he didn't have to do.

(Emphasis added.)

C. The SJC Opinion

On appeal to the SJC, Kirwan raised two arguments that are relevant here. First, he argued that the prosecutor had committed prosecutorial misconduct by arguing a critical fact not in evidence during his closing statement. Second, Kirwan asserted a related claim of ineffective assistance of counsel on the grounds that his lawyer failed to object to the relevant portions of the closing statement and failed to seek curative instructions. Kirwan's first argument had two components. He claimed that (1) it was improper to ask the jury to conclude that Kirwan said he went home to arm himself, and that he in fact did so, because these conclusions were not grounded in the evidence, and (2) even if it was proper to argue that the jury could draw these inferences, it was improper for the prosecutor to argue that Perry explicitly testified that Kirwan said “I'm going to go get my shank.”

The SJC dismissed both arguments. First, apparently addressing the first component of the prosecutorial misconduct argument, it explained that “[c]ontrary to [Kirwan's] assertion, the prosecutor's argument that [Kirwan] said he was going home to get a ‘shank’ was supported by the evidence.” Kirwan, 860 N.E.2d at 941. According to the SJC, Perry's testimony about his conversation with Kirwan shortly before Kirwan left the bar “permitted an inference that [Kirwan] expressed an intention to go home, in part, to get a shank.” Id. at 942. In handling the second component of this argument, the SJC said the following: “In his decision on the defendant's motion for a new trial, the judge observed that, even if the prosecutor had misquoted Perry as to what the defendant had said, ‘the statement attributed to the defendant was fairly inferable from the evidence.’ The argument was not improper.” Id. The SJC then “add[ed] that the jury were instructed that it was their memory of the testimony that was controlling, not that of the attorneys or even the judge.” Id. Having resolved the prosecutorial misconduct issue, the SJC simply noted, “Because there was no misconduct on the part of the prosecutor, there was no ineffective assistance of counsel for failure to object.” Id.

II. Discussion

Kirwan first argues that the prosecutor deprived him of his rights to a fair trial and due process by arguing in summation that Kirwan said he was going home to get a shank, and that he indeed went home to retrieve a shank, before killing Meagher. Kirwan contends that the prosecutor should not have encouraged the jury to draw these inferences because they were not grounded in the evidence; he also contends that it was improper for the prosecutor to misquote Perry as saying that Kirwan had told him “I'm going to go get my shank.” Second, Kirwan argues that his right to effective assistance of counsel was violated because his counsel failed to object and seek curative instructions when the prosecutor mentioned the shank during closing argument. We address each claim in turn after discussing the statutory framework for habeas review.

A. The Statutory Framework

Under the Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief “with respect to any claim that was adjudicated on the merits in [s]tate court ... unless the adjudication of the claim” resulted in a decision that either (1) “was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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.” 28 U.S.C. § 2254(d). If the relevant claim has not been adjudicated on the merits in state court, we review that claim de novo. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.2010). In addition, AEDPA provides that in federal habeas cases, “a determination of a...