Josener Dorisca v. Raymond Marchilli

After a jury convicted

Petitioner Josener Dorisca ("Dorisca") of second-degree murder, he

was sentenced to life in prison with the opportunity of parole

after fifteen years. When his state court appeals were denied, he

turned to the federal court: seeking a writ of habeas corpus, 28

U.S.C. § 2254, in the United States District Court for the District

of Massachusetts, he alleged a violation of his right to

confrontation and a violation of due process. The district court

denied the petition, and now before this court, Dorisca challenges

that dismissal. After due consideration, and bound by the tight

(to say the least) parameters of the Antiterrorism and Effective

Death Penalty Act ("AEDPA"), we affirm.

BACKGROUND

As we lay out the relevant facts and travel, we are

mindful that, "[w]hen we consider a state conviction on habeas

review, we presume the state court's factual findings to be

correct." Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014)

(citing Abram v. Gerry, 672 F.3d 45, 46 (1st Cir. 2012)). Where

the highest state court -- in this case, the Massachusetts Supreme

Judicial Court -- has denied review, we are to "look through to

the last reasoned decision" issued by the Massachusetts Appeals

Court ("MAC"). King v. MacEachern, 665 F.3d 247, 252 (1st Cir.

2011) (quoting Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.

2010)). So the factual narrative below is derived from the

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decision of the MAC, Commonwealth v. Dorisca, 42 N.E.3d 1184 (Mass.

App. Ct. 2015), and the district court's decision, Dorisca v.

Marchilli, No. CV 17-10376-FDS, 2018 WL 3974784, at *1 (D. Mass.

Aug. 20, 2018), which drew from the MAC's decision too.

Dorisca and Bensney Toussaint ("Toussaint") attended a

June 8, 2008 graduation cookout in Brockton, Massachusetts, and

that's where the ultimately deadly physical altercation between

the two men went down. Toussaint was romantically involved with

the mother of Dorisca's two children at the time, and Dorisca and

Toussaint had been involved in at least one previous dust-up.

Toussaint instigated a physical fight with Dorisca, and the ensuing

brawl ended with Toussaint on the ground with multiple gunshots to

the chest and head. His wounds proved deadly -- Toussaint was

taken to a nearby hospital, but was pronounced dead upon arrival.

Dorisca bolted, leaving Massachusetts and hiding out in

Florida for two and a half years before being arrested on unrelated

charges in 2011 (which led to the discovery of the outstanding

warrant for his arrest in Massachusetts).

Discovery, Trial, Conviction, and Appeals

Dorisca was charged with first-degree murder, and the

facts underpinning his claims before us transpired over the course

of the weeks leading up to trial, during trial, and in closing

arguments, so we next provide an overview of those happenings (with

additional detail to follow later).

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Two months out from trial, the Commonwealth moved to

continue because one of its witnesses, medical examiner Dr.

Kimberley Springer ("Dr. Springer"), would be on maternity leave

as of the scheduled date of the trial and, as a result, would not

be able to testify at trial. The trial judge denied the motion

(without prejudice), then instructed the Commonwealth to find a

substitute witness. Within a matter of weeks, the Commonwealth

moved for a continuance on a new, but related basis: the digital

photographs from Toussaint's autopsy apparently had been

corrupted, and they were unavailable for examination by a

substitute medical examiner. Like the motion before it, that one

was denied without prejudice, this time to give Dorisca time to

decide whether he would waive his confrontation clause rights,

which he ultimately declined to do. So the Commonwealth moved to

conduct a deposition of Dr. Springer. The motion was allowed, and

Dr. Springer was deposed on videotape in a courtroom before the

trial judge.1 Dorisca's attorney was present and had an

opportunity to ask questions.

The case proceeded to trial in March of 2013, and five

days into it, the Commonwealth moved to introduce the videotaped

deposition of Dr. Springer into evidence. Based on the

Commonwealth's report four days earlier that Dr. Springer had gone

1 We'll discuss the substance of her deposition testimony

later.

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into labor, the trial judge found that Dr. Springer was unavailable

to testify, and -- over Dorisca's objection as to the doctor's

unavailability -- allowed the videotaped deposition to be played

for the jury. This witness-availability saga forms the basis for

the first of Dorisca's habeas arguments now before us.

Next up, closing arguments, during which the prosecutor

made two misstatements. These misstatements (and the trial judge's

handling of them) constitute the second basis for Dorisca's appeal.

First misstatement:

You heard [Dorisca's] testimony; he's not face up. He

says he's face down, all these men are kicking him and

at the time he wants you to believe that Bensney

Toussaint is slamming his head in the ground. But then

he says I can still see Rodley Doriscat[, Dorisca's

cousin and fellow cookout-goer,] come up, poke Bensney

with the gun. I can see Bensney reach for it and then

I see Rodley shoot him.

Is that credible? Is it reasonable that someone with

his face down can miraculously now see Rodley Doriscat

allegedly shooting to protect him? No. But he needs it

to be credible. Why? He needs to corroborate the

confession.

Dorisca objected because he never testified that he saw Rodley2

shoot Toussaint (no one disputes this was a misstatement). Rather,

Dorisca had testified that he saw Rodley running away with a gun.

He also testified that Rodley later explained to Dorisca that he

had poked Toussaint with the gun (in an effort to get Toussaint

2 Rodley -- who we refer to by first name to avoid confusion

-- committed suicide about three years before trial, having never

gone to the police as Dorisca testified Rodley told him he would.

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off Dorisca, he said), but when Toussaint grabbed Rodley's wrist,

Rodley shot him.

The next prosecutorial misstep (undisputedly a

misstatement, like the one before it) came when the prosecutor

mischaracterized how Dorisca had testified regarding the arresting

event in Florida. Specifically, in the course of being picked up,

Dorisca was a passenger in a car that was stopped by a police

officer. During closing, the prosecutor stated that Dorisca

testified that the officer asked for Dorisca's name before

requesting the driver's name. The prosecutor told the jury, "[t]he

defendant says that he is stopped and [the officer] asks him first,

not the driver who is stopped, but the passenger what his name

was." Dorisca objected because what Dorisca actually said was

that the officer questioned the driver, then asked for Dorisca's

name, and although Dorisca initially gave the officer his real

name, the officer did not believe him (thinking that Dorisca, like

the driver, should have a Haitian-sounding name (whatever that

means)), so Dorisca offered him a fake name instead. At some

point, Dorisca moved for a mistrial on the basis of these

misstatements, but it is unclear from the record precisely when

that motion was made.

Before sending the jury out, the trial judge gave the

jury the standard instruction that closing arguments are not

evidence. The jury convicted Dorisca of second-degree murder.

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As we already mentioned, Dorisca appealed his conviction

to the MAC, but that appeal was unavailing -- the MAC concluded

that, despite what it deemed an error in designating Dr. Springer

"unavailable," the admission of the videotaped deposition was

harmless, and further, the misstatements by the prosecution in

closing were not prejudicial and not significant in view of the

evidence as a whole.3 Dorisca, 42 N.E.3d at 1192-93, 1193 n.19.

The Supreme Judicial Court of Massachusetts denied without a

written opinion Dorisca's application for leave to obtain further

appellate review. Commonwealth v. Dorisca, 48 N.E.3d 464 (Mass.

2016).

Out of options in the state court system, Dorisca

petitioned the federal district court for habeas relief, 28 U.S.C.

§ 2254, arguing violations of his right to confrontation (based on

the admission of Dr. Springer's videotaped deposition testimony)

and of due process (based on what Dorisca characterizes as

prejudicial misstatements of evidence during closing arguments),4

3 We will not recount each of the appellate contentions

Dorisca has advanced since his trial because only two are before

us on appeal, as we will explain.

4 We note that Dorisca initially advanced three grounds for

habeas relief -- (1) the violation of his right to confrontation

of a witness, (2) violation of due process by denying his motion

for mistrial due to misstatements of evidence during the state's

closing, and (3) violation of due process in allowing repetitious

testimony into evidence -- but the state moved to dismiss the

entire petition because ground (3) had not been exhausted. The

district court stated that it would grant the motion to dismiss

unless Dorisca moved to dismiss the unexhausted claim, and when he

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but the district court, concluding that the MAC's harmlessness

determination as to the challenged deposition testimony was

appropriate and the MAC's decision with respect to the

prosecutorial misconduct did not run afoul of Supreme Court

precedent, dismissed the petition (granting a certificate of

appealability). Dorisca challenged that dismissal, which brings

us to the appeal now before us.

DISCUSSION

The district court did not hold an evidentiary hearing

(nor was it asked to), so it made no factual findings of its own.

As such, our review of the district court's dismissal of the habeas

petition is de novo. See Bebo v. Medeiros, 906 F.3d 129, 134 (1st

Cir. 2018), cert. denied, 139 S. Ct. 1203 (2019) (citing Pike v.

Guarino, 492 F.3d 61, 68 (1st Cir. 2007)). "Like the district

court, however, we are required to afford significant deference to

the state court's decision under most circumstances." Lucien v.

Spencer, 871 F.3d 117, 122 (1st Cir. 2017) (citing Scoggins v.

Hall, 765 F.3d 53, 57 (1st Cir. 2014)).

Before turning to Dorisca's arguments, we provide the

big-picture legal framework that will shape our analysis. Just

like the district court's review of Dorisca's habeas petition,

did so, the district court granted that motion. So Dorisca

ultimately pursued only grounds (1) and (2) before the district

court. Those are the sole grounds here on appeal.

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ours is shepherded by AEDPA. 28 U.S.C. § 2254. As an overarching

matter, under AEDPA, "error by a state court, without more, is not

enough to warrant federal habeas relief." Bebo, 906 F.3d at 134

(quoting Cronin v. Comm'r of Prob., 783 F.3d 47, 50 (1st Cir.

2015)). Indeed, as relevant here, a state court decision may be

overturned on habeas review only when a petitioner demonstrates

that the state court's adjudication on the merits of his claims

resulted in a decision that is "contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28 U.S.C.

§ 2254(d)(1). We've observed that AEDPA's "standards ensure that

federal habeas relief will be granted only in cases in which all

fairminded jurists would agree that a final state court decision

is at odds with the Supreme Court's existing precedents." Bebo,

906 F.3d at 134 (citing Harrington v. Richter, 562 U.S. 86, 102

(2011)). Indeed, "[t]he more general the rule, the more leeway

courts have in reaching outcomes in case-by-case determinations."

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). As such, a

habeas petitioner must show "the state court's ruling on the claim

. . . was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility

for fairminded disagreement." Linton v. Saba, 812 F.3d 112, 123

(1st Cir. 2016) (quoting Harrington, 562 U.S. at 103).

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This first layer of set-up complete, we turn to the

specifics of Dorisca's two claims before us: (1) his right to

confrontation was violated when, in an unreasonable application of

federal law resulting in prejudicial error, the deposition

testimony of Dr. Springer was admitted without an adequate showing

that she was unavailable to testify at trial; and (2) his dueprocess

rights were violated when his mistrial motion -- based on

the misstatements of evidence during closing arguments and the

trial judge's response to them -- was denied.

1. Admission of Dr. Springer's deposition testimony and the

MAC's harmlessness determination

Dorisca argued that the trial court's admission of Dr.

Springer's deposition (premised on an erroneous unavailability

determination) violated his right to confrontation, and the MAC

agreed, finding error in the trial judge's unavailability

determination. But the MAC reasoned that the error was a harmless

one (more on this shortly), and it is this harmlessness

determination that Dorisca tells us the MAC got wrong.5 He says

the error was not harmless in that, without live cross-examination,

his ability to challenge the case against him was substantially

prejudiced, particularly as to who pulled the trigger and the

5 Dorisca never truly fleshes out exactly how it is that the

MAC's harmlessness determination was an unreasonable application

of federal law (nonetheless we work with the arguments he does

offer in support of his proposition that the MAC's "decision was

unreasonable").

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trajectory of the gunshots. He could not fully and effectively

explore these topics -- especially the "intermediate range" piece

-- in the course of Dr. Springer's deposition because he did not

yet have the full picture of wholly developed facts. And the jury

was left with no way to assess Dr. Springer's credibility and

reliability. At oral argument, Dorisca said the deposition had

been approached more like traditional discovery rather than as

something that would be introduced at trial: counsel told us he

figured the deposition wouldn't be defense counsel's "last shot at

Dr. Springer." Dorisca has not explained why it was reasonable

for him to believe defense counsel would have another opportunity

to examine Dr. Springer when the trial judge had demonstrated clear

intractability when it came to moving the trial date to ensure her

availability, but this is his position.

Meanwhile, the Commonwealth asserts that even if there

was a confrontation clause violation, the MAC did not unreasonably

apply federal law in reaching its conclusion that any such error

was a harmless one.6 Running through factors set forth in the

relevant clearly established federal law, which is Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986), the Commonwealth tells us, inter

alia, that Dr. Springer's testimony was "largely redundant of other

6 The Commonwealth tells us that the MAC's decision was not

contrary to Supreme Court precedent (another of AEDPA's grounds

for habeas relief, remember) -- but since Dorisca himself never

argues that point, we don't go there.

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evidence" and that her testimony regarding the intermediate

shooting range "actually redounded to the benefit of" Dorisca since

it empowered him to press the theory that the shooter was someone

farther away from Toussaint than Dorisca had been. The

Commonwealth also notes that Dorisca's arguments with respect to

the prejudice he says he suffered are speculative.

So let's turn to the merits. At the heart of Dorisca's

claim for habeas relief here is the Sixth Amendment's guarantee

that "[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him." U.S.

Const. amend. VI. The Supreme Court in Davis v. Washington, 547

U.S. 813, 821 (2006), held that this provision "bars 'admission of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a

prior opportunity for cross-examination.'" Id. (quoting Crawford

v. Washington, 541 U.S. 36, 53-54 (2004)).

Recall that the trial judge here had deemed Dr. Springer

unavailable, a determination he arrived at based on the

Commonwealth's report several days earlier that she was in labor.

That ruling in place, the prosecutor offered, and the trial judge

allowed into evidence, Dr. Springer's videotaped deposition in

which she testified about Toussaint's wounds and cause of death.

In the course of her testimony, she explained that the gunshots to

Toussaint's chest caused his death, and she believed the wounds

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were not so-called "close" wounds, but rather they were caused by

gunshots fired from a distance of "a couple of inches to a few

feet away," or from "intermediate range."

When the case reached the MAC, it had the benefit of a

new framework handed down to it by the Commonwealth's high court

that "clarified the requirements for a judicial determination of

unavailability." Dorisca, 42 N.E.3d at 1189 (citing Commonwealth

v. Housewright, 25 N.E.3d 273, 281 (Mass. 2015)). Long story

short, Dorisca's trial judge's unavailability determination fell

short: the trial judge did not have (or inquire about) up-to-date

information about Dr. Springer's condition and had failed to either

consider whether she could appear later in the trial or to

entertain a short continuance to accommodate her current

unavailability, so the MAC concluded that the admission of the

deposition violated Dorisca's right to confrontation. Id. at 1191.

From there, the MAC pivoted to a Chapman v. California,

386 U.S. 18 (1967), harmless-beyond-a-reasonable-doubt analysis

because even though this constitutional right was violated, it

does not automatically follow that Dorisca was entitled to relief,

see, e.g., Glebe v. Frost, 574 U.S. 21, 23 (2014) (per curiam)

("Most constitutional mistakes call for reversal only if the

government cannot demonstrate harmlessness[,] Neder v. United

States, 527 U.S. 1, 8 (1999)[, while] [o]nly the rare type of error

. . . requires automatic reversal."). So the MAC queried: the

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unavailability determination was an error (resulting in a

confrontation clause violation), but was it a harmless one?

Dorisca, 42 N.E.3d at 1191 (Commonwealth v. Marini, 378 N.E.2d 51,

58 (Mass. 1978), which quotes Chapman, 386 U.S. at 24). The MAC

answered that question in the affirmative -- it was a harmless

error because: the central factual dispute was the identity of

the shooter, and Dr. Springer's testimony had no bearing on that

question because nothing in her testimony made it more likely that

the shooter was Dorisca; only passing reference was made to her

testimony in closing argument -- for both sides; Dorisca actually

relied on her intermediate range testimony to support his position

that the shooter was Rodley; Dorisca had not pointed the MAC to

any testimony by Dr. Springer that was "essential to the

Commonwealth's case or significant to the jury's resolution of the

defendant's guilt"; Dr. Springer's testimony was cumulative, not

significant or indispensable; and Dorisca "thoroughly crossexamined

Dr. Springer at her deposition, and there is no indication

that either her testimony or the defense strategy on crossexamination

would have differed at trial." Dorisca, 42 N.E.3d at

1192 (collecting cases applying Chapman or Chapman-style harmlesserror

analysis in this context).

Our job is to scrutinize the harmlessness determination.

"[W]hen a state court determines that a constitutional violation

[here, the confrontation clause violation stemming from the faulty

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unavailability determination] is harmless [under Chapman, 386 U.S.

at 24], a federal court may not award habeas relief under § 2254

unless the harmlessness determination itself was unreasonable."7

Fry v. Pliler, 551 U.S. 112, 119 (2007) (citing Mitchell v.

Esparza, 540 U.S. 12 (2003) (per curiam)). Indeed, the critical

inquiry is whether the MAC's harmlessness determination was

reasonable; we do not perform our own harmlessness analysis.

We conclude that Dorisca has not met his burden on the

threshold issue of whether the harmlessness determination stemmed

from an unreasonable application of Supreme Court law. We explain.

In looking de novo at the MAC's harmlessness

determination, we keep in mind that an unreasonable application of

7 In Chapman, the Court "articulated the constitutional

harmless error standard, which provides that, on direct appellate

review, an error at trial affecting the defendant's constitutional

rights will be deemed harmless only if it can be shown to be

harmless beyond a reasonable doubt." Connolly v. Roden, 752 F.3d

505, 509 (1st Cir. 2014), cert. denied, 135 S. Ct. 960 (2015)

(citing Chapman, 386 U.S. at 24).

Our court has explained that, "when a state court decides

that a constitutional error is harmless beyond a reasonable doubt

under Chapman, a federal court on habeas review may choose between

two equally valid options" in undertaking its review: ask under

AEDPA whether the harmlessness determination was an unreasonable

application of Chapman, and only if it was may we move on to ask

whether actual prejudice resulted; or begin directly with the

actual-prejudice question. Connolly, 752 F.3d at 511; see also

Fry v. Pliler, 551 U.S. 112, 120 (2007).

Truth be told, there's more background to all of this, and we

would urge the curious reader to check out Connolly for a helpful

account of Supreme Court pronouncements regarding our review in

this arena. For our purposes today, though, we need not replicate

the entire history Connolly lays out.

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federal law happens when a state court "identifies the correct

governing legal principle from the Supreme Court's then-current

decisions but unreasonably applies that principle to the facts of

the prisoner's case." Hensley, 755 F.3d at 731 (quoting Abrante

v. St. Amand, 595 F.3d 11, 15 (1st Cir. 2010)). "For purposes of

§ 2254(d)(1), 'an unreasonable application of federal law is

different from an incorrect application of federal law,'" and a

state court is afforded "deference and latitude." Harrington, 562

U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000));

see also Hensley, 755 F.3d at 731. And we observe that it must be

an objectively unreasonable application of federal law -- "even

'clear error' will not suffice." White v. Woodall, 572 U.S. 415,

419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).

Here, Chapman and Van Arsdall -- taken together -- are

what the MAC is alleged to have unreasonably applied. Chapman,

386 U.S. at 24, as we just mentioned, announces the constitutional

harmless-error standard, while Van Arsdall, 475 U.S. at 684, tells

us that, when it comes to a confrontation clause violation under

Chapman, a court should take into account "the importance of the

witness' testimony in the prosecution's case, whether the

testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

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prosecution's case." In reviewing Dorisca's claim of error, the

MAC undertook a Chapman harmlessness analysis that tracked

(without explicitly referring to) the factors laid out in Van

Arsdall.

Dr. Springer's videotaped deposition testimony was

referenced only in passing during each side's closing, which we

take to mean it wasn't afforded a high mark on "importance" to the

prosecution's case since the MAC observed that closing arguments

focused more on credibility determinations. Dorisca, 42 N.E.3d at

1192. Indeed, the MAC reasoned that Dorisca never pointed to any

testimony by Dr. Springer "that was essential to the Commonwealth's

case." Id. And it is clear that Dr. Springer's testimony with

respect to the nature and extent of Toussaint's wounds, as well as

his cause of death, was corroborated by other witnesses and

evidence (such as the emergency room doctor, autopsy photographs,

and medical records). Id. at 1192 & n.17. The cause of death was

not disputed, so Dr. Springer's testimony on that score was not of

the utmost importance, either; and to the extent her "intermediate

range" testimony could be seen as problematic, her testimony on

that topic neither incriminated Dorisca nor absolved him of guilt

since the gunshots' point of origin remained wholly in doubt.8 Id.

8 Dorisca does not contend that Dr. Springer's "intermediate

range" testimony supported a Dorisca-pulled-the-trigger theory of

the crime, nor does he say it was a particularly important

component of the Commonwealth's case or critical to the eventual

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In fact, as the MAC reasoned, Dorisca himself even used Dr.

Springer's testimony on that point to cast reasonable doubt on

Dorisca being the shooter (telling the jury it could have been

Rodley, not Dorisca, who pulled the trigger). Id. at 1192.

And what's more, nothing in the record or the appellate

papers before us indicates that Dr. Springer's testimony would

have been any different at trial than it was at deposition. While

Dorisca tells us her live testimony would have been preferable --

and we're not saying we disagree -- the fact is that the deposition

was being conducted in lieu of live testimony, so he should have

planned accordingly rather than banking on getting "another shot

at Dr. Springer" at trial.

The strength of the Commonwealth's case is yet another

factor, and one which also supports the harmlessness

determination. Indeed, the MAC noted that even with the identity

of the shooter a mystery, the "compelling circumstantial evidence"

against Dorisca was "sufficient to permit the jury to find [him]

guilty beyond a reasonable doubt." Id. at 1187. More

particularly, the MAC pointed to "eyewitness testimony that only

two men were fighting, one of whom was the defendant and the other

guilty verdict, so any such argument is waived. Moreover, we do

not see how such arguments could succeed in light of

the Brecht v. Abrahamson, 507 U.S. 619 (1993), standard.

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the victim, and conduct of and statements made by the defendant

indicating consciousness of guilt." Id.

In light of all this, we cannot say that the MAC's

conclusion was an unreasonable application of Chapman and, by

extension, Van Arsdall.9 Remember, the MAC's determination would

need to be objectively unreasonable -- clear error, even if we saw

it (and we don't), wouldn't do the trick. White, 572 U.S. at 419.

In the end, and giving the MAC the due "deference and latitude" it

is owed, Harrington, 562 U.S. at 101, we do not see any objectively

unreasonable application of the law, nor can we conclude that "all

fairminded jurists" would see the MAC's decision as being "at odds

with the Supreme Court's existing precedents," Bebo, 906 F.3d at

134 (citing Harrington, 562 U.S. at 102). Bound by the confines

of AEDPA and all the case law we've laid out in reaching this

point, we conclude that the district court did not err when it

concluded that the MAC reasonably determined that the

constitutional violation was harmless beyond a reasonable doubt,

so Dorisca is not entitled to habeas relief on this ground.10

9 We pause here only to observe that consideration of another

of Van Arsdall's factors cited by the MAC -- cumulativeness --

would not alter our conclusion. Even if Dr. Springer's testimony

was not actually "cumulative of other evidence in the case,"

Dorisca, 42 N.E.3d at 1192, it is one factor of many, so our

preceding analysis of and conclusion regarding the MAC's

harmlessness determination (based on Chapman and the other Van

Arsdall factors) would be unchanged.

10 Because we so conclude, we need not contend with actual

prejudice. See Connolly, 752 F.3d at 514 (taking this approach).

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2. Prosecution's misstatements during closing arguments

In his next effort to support his habeas petition,

Dorisca contends that the prosecution intentionally misstated the

evidence twice during the course of the closing argument, and those

misstatements, along with the trial judge's refusal to grant a

mistrial, constitute a prejudicial error. Remember, the

misstatements were (a) Dorisca testified that he saw Rodley shoot

Toussaint (which is not what he said) and (b) Dorisca testified

that the officer asked for his name first, not the driver's name

(the reverse was what Dorisca had said). This prosecutorial

misconduct, Dorisca says, rendered the whole of Dorisca's

testimony implausible and undermined his credibility, and the

trial judge's "boilerplate" jury instruction that closing

But, even if the MAC's harmlessness determination was premised on

an unreasonable application of the law, Dorisca still would not

prevail because he cannot show error under the actual-prejudice

standard. See Brecht, 507 U.S. at 637 (explaining the key inquiry

of whether an error had substantial and injurious effect on the

verdict -- habeas petitioners are not necessarily entitled to

relief unless they establish that the error resulted in actual

prejudice). Here, Dorisca did not identify any non-speculative

actual prejudice. In his papers and at oral argument, Dorisca

claimed the actual prejudice was that Dr. Springer never appeared

before the jury and her intermediate range testimony, without live

cross-examination, was harmful to his case. This is purely

speculative and certainly doesn't rise to the level of a

substantial and injurious effect on the verdict since Dorisca has

not demonstrated what would have been different about Dr.

Springer's cross-examination at trial versus at deposition, nor

has he identified what information he had hoped to pin down through

Dr. Springer's cross that was not already in the record.

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arguments are not evidence was insufficient to address the

ramifications of the misstatements.

But, although he identifies the relevant clearly

established Supreme Court case, nowhere in the pages Dorisca

devotes to this argument does he explain to us how the MAC's

prosecutorial-misstatements analysis ran contrary to or

constituted an unreasonable application of the law, as he must to

succeed. 28 U.S.C. § 2254(d)(1). Instead, he focuses on

relitigating the incorrectness of the misstatements and how the

trial judge's "bland" curative instruction failed to offset the

negative effect the misstatements had on the jury -- both are

relevant to our review of his claim, but he has not shown us how,

under AEDPA, the MAC's determinations on those points ran afoul of

the contrary to/unreasonable application of federal law standard.

In any event, because we can go the route of rejecting

Dorisca's claim on the merits -- and because the Commonwealth did

not implore us to do otherwise -- we need not go as far as to say

this piece of the appeal is waived. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) (treating arguments not developed

on appeal as waived because litigants must develop their own

arguments rather than "leaving the court to do counsel's work").

So, with our AEDPA framework in mind, we turn to the

MAC's analysis. In evaluating the appellate contentions relative

to the prosecutor's misstatements, the MAC properly relied on

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Massachusetts state law consistent with Darden v. Wainwright, 477

U.S. 168 (1986), the clearly established Supreme Court case law

instructing that "it is not enough that [a] prosecutors' remarks

[are] undesirable or even universally condemned." Id. at 181

(internal quotation marks omitted). Under Darden, "[t]he relevant

question is whether the prosecutors' comments 'so infected the

trial with unfairness as to make the resulting conviction a denial

of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). That question is to be answered on a caseby-

case basis, Parker v. Matthews, 567 U.S. 37, 48 (2012), taking

into account considerations such as whether the jury was adequately

instructed, the nature and seriousness of the comments, and the

weight of the evidence, see, e.g., Dagley v. Russo, 540 F.3d 8, 15

n.3, 17-18 (1st Cir. 2008) (citing Darden, 477 U.S. at 178-83;

Donnelly, 416 U.S. at 642-45); see also Hardy v. Maloney, 909 F.3d

494, 501 (1st Cir. 2018).

Here, the MAC agreed that the prosecutor misstated the

testimony, but determined that, "[u]nder the circumstances,"

considering the evidence as a whole, the misstatements were not

prejudicial in that they were not significant errors. Dorisca, 42

N.E.3d at 1192-93, 1193 n.19 (citing Commonwealth v. Wood, 14

N.E.3d 140, 158-59 (Mass. 2014); Commonwealth v. Kozec, 505 N.E.2d

519, 520 (Mass. 1987)). Yes, the prosecutor's statement that

Dorisca had seen Rodley shoot Toussaint was inaccurate, but the

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MAC concluded that because Dorisca "testified that he heard shots,

and then saw Rodley running from the scene holding a gun," and

further had "testified that Rodley told him that he poked the

victim with a gun," the prosecutor's error was not prejudicial.

Dorisca, 42 N.E.3d at 1193. And with respect to the officer asking

Dorisca his name either before or after asking the driver,

depending on who's telling the story, the MAC held that the

prosecutor's inaccurate version was not prejudicial error because

it was insignificant. Id. at 1193 n.19 (citing Commonwealth v.

Richenburg, 518 N.E.2d 1143, 1150 (Mass. 1988)). Moreover, the

trial judge "instructed the jury that the arguments were not

evidence, and that the jurors were to rely on their own memories

of the evidence." Id. at 1193.

Overall, the MAC appropriately considered the

seriousness of the misstatements, the weight of all the evidence,

and the curative instructions issued. See, e.g., Dagley, 540 F.3d

at 15 n.3, 17-18 (citing Darden, 477 U.S. at 178-83; Donnelly, 416

U.S. at 642-45). Accordingly, the MAC's determination that the

prosecutor's misstatements were not prejudicial is not contrary to

or an unreasonable application of clearly established federal law,

nor did the misstatements "so infect[] the trial with unfairness

as to make the resulting conviction a denial of due process."

Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). The

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district court, given AEDPA's strictures, correctly determined

that Dorisca is not entitled to habeas relief on this ground.

CONCLUSION

For the reasons stated, the district court's dismissal

of the habeas petition is affirmed.