293 F.

3d 19

Barbara OUBER, Petitioner, Appellee,

v.
Barbara GUARINO, Respondent, Appellant.
No. 01-2390.

United States Court of Appeals, First Circuit.

Heard April 4, 2002.
Decided June 17, 2002.

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.
Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and
LYNCH, Circuit Judge.
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 prcis

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.

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 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.
8

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 drugrelated 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
country). Shea and the petitioner were the main witnesses, and they gave
sharply conflicting accounts as to what had occurred inside the Toyota.

10

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.

11

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 passenger's seat. The petitioner then drove away.
Gisleson was still at 9 Beth Lane when the petitioner returned. The petitioner
seemed very upset.

12

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.
13

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.

14

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.

15

As the third trial began, 1 the petitioner's counsel the selfsame lawyer who
had represented her at the two earlier trial selected 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:

16

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.

17

....

18

.... You're going to hear a difference of opinion as to whether [the envelopes]

were handed to Mr. Shea, whether he opened them in front of her; and as to the
conversation.

19

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.

20

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.

21

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 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 is vehicle; and that the petitioner never
touched the envelopes.2

22

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
tested 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.

23

Jury deliberations began that afternoon, but court adjourned without a verdict.
Deliberations resumed the next 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. Rodriquez, 364 Mass. 87, 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.

24

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.

25

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
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.

26

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, 46 Mass.App.Ct.
1112, 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, 366 Mass. 89, 315 N.E.2d 878, 88283 (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
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."

27

In due course, the Massachusetts Supreme Judicial Court (SJC) denied further
appellate review. Commonwealth v. Ouber, 429 Mass. 1104, 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, 104 S.Ct.
2052, 80 L.Ed.2d 674 (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 silentand
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 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.

28

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

29

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.

30

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:

31

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.

32

Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

33

As to the first element, "[j]udicial scrutiny of counsel's performance must be

highly deferential." Id. at 689, 104 S.Ct. 2052. 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, 535 U.S. ___, 122 S.Ct. 1843, 1854, 152 L.Ed.2d 914 (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, 104 S.Ct. 2052.

34

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 errors, the result of the proceeding would have been different."
Id. at 694, 104 S.Ct. 2052. While this level of prejudice may be presumed in a
few settings, id. at 692, 104 S.Ct. 2052, 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, 120 S.Ct.
746, 145 L.Ed.2d 756 (2000). In this regard, we caution that, although the
possibility of a different out-come must be substantial in order to establish
prejudice, it may be less than fifty percent. See Strickland, 466 U.S. at 693, 104
S.Ct. 2052 (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.

35

Under the AEDPA, a federal court may grant habeas relief to a state prisoner
only if the state court adjudication

36

(1) resulted in a decision that was contrary to, or involved an unreasonable

36

(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

37

(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.

38

28 U.S.C. 2254(d).

39

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 different result on facts materially indistinguishable from those of a
controlling Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 40506, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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.

40

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, 120 S.Ct. 1495. 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, 120 S.Ct. 1495.

41

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, 120 S.Ct. 1495. 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
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.

42

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, 120 S.Ct. 1495. 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, 120 S.Ct. 1495, 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).
43

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 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, 83 S.Ct. 745, 9 L.Ed.2d 770 (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, 104 S.Ct. 2052, section 2254(d)(2) is of
limited utility in this case.
III. ANALYSIS

44

Consistent with the Strickland paradigm, we divide our analysis into two parts:
performance and prejudice.

A. Performance.
45

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 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).
46

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, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)
(quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). 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 mo-ment 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.

47

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, 81 S.Ct. 653, 5
L.Ed.2d 670 (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.

48

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 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).
49

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

50

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.

51

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 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.
52

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.

53

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 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.

54

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

55

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 neither a qualitative change nor an unexpected event
justifying an abrupt switch in strategy.7
56

If more were neededand 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.

57

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).

58

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 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.

59

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 decision about whether to testify
ultimately rests with the defendant, see Rock v. Arkansas, 483 U.S. 44, 49-53,
107 S.Ct. 2704, 97 L.Ed.2d 37 (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

60

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 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)).

61

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 crossexamination 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 Court's attempted
justification is, therefore, plainly insupportable.
62

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.
63

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.

64

Although Strickland and Saferian do not employ identical phraseology, we

have described those variations as "minor" and have 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, 417 Mass. 692, 632 N.E.2d
1200, 1202 (Mass.1994); Commonwealth v. Fuller, 394 Mass. 251, 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).

65

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, ___ U.S.
___, 122 S.Ct. 1237, 1246, 152 L.Ed.2d 291 (2002); Smith, 528 U.S. at 287,
120 S.Ct. 746; Strickland, 466 U.S. at 692, 104 S.Ct. 2052.
66

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
1850. 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, 82 S. Ct. 157, 7 L.Ed.2d 114
(1961)). Second, such a presumption is warranted if "counsel entirely fails to
subject the prosecution's case to meaningful adversarial testing." Id. at 1851
(quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80
L.Ed.2d 657 (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, 53 S.Ct.
55, 77 L.Ed. 158 (1932)).

67

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 1850-51; Mickens, ___ U.S. at ___, 122 S.Ct. at
1246. We have heeded the 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

68

formulation, a presumption of prejudice cannot be condoned.

69

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, 104 S.Ct. 2052. 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

70

When the petitioner testified, two different juries found the prosecution's case
so evanescent that they were unable to reach 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.

71

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, 858 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, 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.

72

Under the AEDPA, an erroneous determination is not necessarily an

unreasonable determination. Williams, 529 U.S. at 410, 120 S.Ct. 1495. 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, 120 S.Ct. 1717, 146 L.Ed.2d 640
(2000); accord Hurtado v. Tucker, 245 F.3d 7, 19 (1st Cir.), cert. denied, ___,
122 S.Ct. 282, 151 L.Ed.2d 208 (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.

73

Here, the Massachusetts Appeals Court's "no prejudice" determination is not a

credible outcome. That tribunal dealt with the question of prejudice vel non in a
single paragraph, which reads:

74

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.

75

As can be seen, this paragraph contains several assertions but these

assertions are either irrelevant or devoid of record support. We explain briefly.

76

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
decision on the credibility of the witness who was promised but not produced
was certainly far less dramatic and memorable.

77

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).

78

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.
79

The remaining factors mentioned by the Appeals Court bear little relevance to
the prejudice inquiry. The fact that counsel's 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.

80

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.

81

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.

IV. CONCLUSION
82

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.
83

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 harmlessness
determination represented an unreasonable application of Strickland's prejudice
prong.

84

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.

85

Affirmed.

Notes:
1

The ground rules vis-a-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)

During 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

The priests assisted in this endeavor, but the petitioner claims, without
contradiction, that the priests were merely advocating for the position that the
lawyer espoused

Counsel'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 negative
impact on the jury
5

The 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

To 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 did not afford the factfinders an opportunity to see and
hear the petitioner's detailed, first-hand account of the transaction

This 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

Although the state court did not refer toStrickland 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.
Fuller, 394 Mass. 251, 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).

We 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 claimSee 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").

10

We caution that the likelihood of a different outcome may not always be

synonymous with prejudiceSee Strickland, 466 U.S. at 695, 104 S.Ct. 2052
(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.