Delaney v. Bartee, 1st Cir. Apr. 4, 2008
07-1526 Delaney v. Bartee
Before Boudin, Chief Judge. Wallace,1 Senior Circuit Judge, and Howard, Circuit Judge.
WALLACE, Senior Circuit Judge. John Delaney appeals from the district court’s order denying his habeas corpus petition. He argues that the prosecutor violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision to remain silent after arrest. The district court held that his claim was procedurally defaulted under the Massachusetts contemporaneous objection rule and therefore not subject to habeas review. On appeal, Delaney argues (1) that his claim was not procedurally barred, and (2) that the state court’s decision on the merits was contrary to or an unreasonable application of Supreme Court law. Delaney presents a colorable argument as to each of these claims. But the decisive issue before us is whether he has failed to demonstrate that the prosecutor’s comments “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation marks omitted), quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). … The district court’s denial of Delaney’s petition is AFFIRMED. Delaney v. Bartee.
- Of the Ninth Circuit, sitting by designation. [↩]
