Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 16-1461

CHARLENE CONNORS,

Petitioner, Appellant,

v.

JOSEPH FITZPATRICK, et al.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Barron, Selya, and Lipez, Circuit Judges.

Elizabeth R. Dembitzer, with whom Committee for Public Counsel Services was on brief, for appellant. Ryan E. Ferch, Assistant Attorney General of Massachusetts, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees.

November 15, 2017 Per Curiam. After careful consideration of the oral

arguments of counsel, the record, and the briefs, we affirm on de

novo review the district court's decision to deny habeas corpus

relief for substantially the same reasons stated by the district

court. See

(d).

1. Sufficiency of the Evidence

Charlene Connors contends that the Commonwealth did not

provide sufficient evidence to the jury to establish her "specific

intent to gain some undue advantage . . . by an act or acts which

[s]he took knowing them to be wrongful and in violation of an

affirmative duty." Massachusetts state courts apply an

insufficiency of evidence standard substantially identical to the

standard promulgated by the Supreme Court in Jackson v. Virginia,

(1979). See Linton v. Saba,

(1st Cir. 2016) ("[T]he evidence offered by the Commonwealth,

together with reasonable inferences therefrom, when viewed in its

light most favorable to the Commonwealth, was sufficient to

persuade a rational jury beyond a reasonable doubt of the existence

of every element of the crime charged." (quoting Commonwealth v.

Linton,

(Mass. 2010))). Applying that

standard, a rational jury could have found beyond a reasonable

doubt that Connors knowingly participated in the embezzlement.

Hence, we agree with the district court that Connors has "not

demonstrated that the decision reached by the jury and affirmed by

- 2 - the appellate court contradicted clearly established Supreme Court

case law. Therefore, she is not entitled to habeas relief on her

insufficiency of evidence claim." Connors v. Massachusetts Parole

Bd.,

, at *3 (D. Mass. Apr. 25, 2016).

2. Jury Instructions

Habeas corpus relief for claims of

improper jury instructions under state law is only available when

the improper instruction “by itself so infected the entire trial

that the resulting conviction violates due process.” Estelle v.

McGuire,

(1991) (quoting Cupp v. Naughten,

(1973)). Although inartful at times, the judge's

jury instructions explaining the term "fiduciary" in the

embezzlement statute, taken in context, did not reach the level of

taint required by Estelle. Those instructions did not strip the

jury of its ability to determine an element of the crime nor did

they direct the jury toward a verdict for the Commonwealth. Thus

we agree with the district court that Connors has not demonstrated

that the decision of the state court contradicts clearly

established federal law as interpreted by the Supreme Court, and

she is not entitled to habeas relief on the jury instruction issue.

Affirmed. See 1st Cir. R. 27.0(c).

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