United States Court of Appeals For the First Circuit

No. 19-2134

TREVOR A. WATSON,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

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

[Hon. William G. Young, U.S. District Judge]

Before

Thompson, Howard, and Gelpí, Circuit Judges.

Catherine Sevcenko for appellant. Mark T. Quinlivan, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

June 15, 2022 GELPÍ, Circuit Judge. Petitioner-Appellant Trevor A.

Watson ("Watson") appeals from the denial of his petition for

habeas corpus, alleging ineffective assistance of counsel. We

affirm the judgment below.

I. Background

A. The Jury Trial and Appeal1

On April 21, 2010, Watson was indicted on two counts of

attempting to kill a federal witness with intent to prevent

testimony and communication with law enforcement. See

(a)(1)(A),(C),(a)(2)(A),(C). The events that led to

the charges occurred on February 27, 2010, when Watson stopped by

Ann's Unisex Barbershop in Boston's South End to pay a visit to

his friend and barber, Ricky Knight. Watson's longtime friend,

Curtis Best ("Best"), was standing outside the barbershop chatting

with Albert Rue ("Rue"), an acquaintance of both Watson and Best.

Watson approached Best and asked him to talk privately. The two

had not communicated for some time. They walked away and engaged

in some small talk. Thereafter, "[a] short distance from the

barbershop, Watson stopped, enveloped Best in a faux embrace, and

stabbed him ten times . . . while stating 'So you talking? So

1 The facts of the underlying criminal case have been thoroughly described in United States v. Watson,

(1st Cir. 2012), in which we affirmed petitioner's conviction on direct appeal. In this opinion, we refer only to those facts salient to the issues before us.

- 2 - you telling, huh?'" United States v. Watson,

(1st Cir. 2012) Rue drove Best to Boston Medical Center, where he

underwent surgery, and ultimately lived. At the time, Best was

actively cooperating with federal authorities on a drug-related

case that involved his and Watson's former drug supplier, John

Camacho. Best provided the Drug and Enforcement Administration

("DEA") information that identified potential co-conspirators,

including Watson.

Watson's trial began on October 25, 2010, and ended with

a hung jury. Following a four-day retrial, he was convicted, and

the district court sentenced him to an imprisonment term of 360

months. Watson appealed his conviction, challenging several

evidentiary rulings and asserting that the prosecutor's closing

argument was prejudicial to his case. Watson,

-

62. We affirmed.

On direct appeal, we first addressed the admissibility

of evidence pertaining to a 2002 criminal case before the

Massachusetts Superior Court in which Watson and two other

individuals were charged with assault with intent to murder and

assault and battery in relation to the stabbing of former Boston

Celtics player, Paul Pierce (the "Paul Pierce case"). Watson,

. The district court took judicial notice of the

testimony of Krystal Bostick ("Bostick") during that trial, as

evidence of Watson's consciousness of guilt.

. It

- 3 - informed the jury that after Bostick spoke with the Providence

Police Department and offered her testimony to the grand jury, but

prior to trial, she reached out to Watson's counsel and recanted.

Additionally, during the trial itself, "[she] repeatedly

recanted her prior statements and identifications."

.

We ruled that the district court properly took judicial notice of

these facts because the reference to the Paul Pierce case was

invoked by Watson himself and, although likely adverse to him, it

was not unfairly prejudicial.

. We further held

that the instructions imparted to the jury remedied any prejudicial

effect.

Next, we found no error by the district court in

admitting the testimonies of Best, his co-conspirator Antonio

Narvaez, and DEA Agent Dennis Barton, given that the same were

relevant in demonstrating Watson's motive for stabbing Best and

"[their] probative value was not substantially outweighed by any

unfair prejudice."

. Third, we addressed Watson's

challenge to the admission of an unredacted footnote in the

supporting affidavit of DEA Special Agent, Brian Tomasetta (the

"Tomasetta affidavit"). We concluded that, although the footnote

therein should have been redacted, said error only revealed

Watson's criminal history, which was otherwise evidenced at trial.

.

- 4 - B. The Habeas Proceedings

On January 14, 2014, Watson filed a motion before the

district court, pursuant to

, to vacate his

conviction based upon ineffective assistance of counsel.

Specifically, Watson argued therein that his attorney committed

three errors of constitutional magnitude, which were: (1) his

decision not to object to the admission of the Paul Pierce case

statements, (2) his failure to object to unredacted footnotes in

the Tomasetta affidavit admitted as evidence, and (3) his failure

to investigate, contact witnesses identified by Watson, and offer

evidence that Best's status as an informant was not the reason why

Watson stabbed him; instead Best owed Watson money that Best gave

him to promote his music career.

Following a hearing, the district court found that

Watson's claims pertaining to the Paul Pierce case and the

Tomasetta affidavit had already been considered and rejected on

direct appeal and, as such, it could not entertain the same. The

district court further reiterated our ruling that its judicial

notice was "narrowly confined to the material necessary." Watson,

. Moreover, assuming arguendo that said two claims

were not wholly foreclosed by our decision in the direct appeal,

the district court concluded that Watson failed to prove

ineffective assistance of counsel.

- 5 - Turning to Watson's claim not raised in his 2012 direct

appeal, the district court held that it was skeptical to find

constitutional error in counsel not contacting any of the witnesses

whose names Watson provided. First, the district court noted that,

at trial, Watson's attorney "did develop evidence, primarily

through Rue's testimony, that people very close to Best had no

idea he was an informant." The district court next held that

Watson's attorney engaged in genuine efforts to introduce evidence

of Best's alleged debt to Watson until the court sustained the

prosecutor's objection regarding such line of questioning.

Finally, the district court found that even if Watson's attorney

committed constitutional error, the same was not prejudicial to

Watson. This appeal followed.

We address each issue seriatim, as well as a new matter

not raised below. While the law of the case applies to previous

litigated issues already decided on appeal, this doctrine does not

automatically bar ineffective assistance of counsel claims. See

Fernandez-Garay v. United States,

(1st Cir. 2021).

However, for any such properly raised issues we limit ourselves to

reviewing the habeas record itself. Cf. Cullen v. Pinholster,

,

(2011) ("[R]eview under §

2254(d)(1) is limited to the record that was before the [] court

that adjudicated the claim on the merits."); see also Atkins v.

Clarke,

(1st Cir. 2011).

- 6 - II. Standard of Review

In a habeas appeal, "'[w]e generally do not rule on

questions -- whether of fact or of law -- until a district court

has done so, . . . allowing the parties to hone their arguments

[to the district court] before presenting them to us.'" Shea v.

United States,

(1st Cir. 2020) (quoting Moore v.

United States,

(1st Cir. 2017)). We review the

district court's legal conclusions de novo and apply a clear error

standard to its factual findings. Cody v. United States,

(1st Cir. 2001); see also Familia-Consoro v. United States,

(1st Cir. 1998).2

III. Discussion

The Constitution guarantees a defendant's right to fair

trial, including the right to effective assistance of counsel.

Strickland v. Washington,

(1984).

"[A]ttorneys must deliver, at minimum, 'effective' representation

or 'adequate legal assistance' to their clients." Fernandez-

Garay,

-62 (quoting Strickland,

).

To demonstrate ineffective assistance of counsel in violation of

the Sixth Amendment, Watson must establish that (1) "counsel's

representation 'fell below an objective standard of

reasonableness,'" and (2) "'a reasonable probability that, but for

2 The district court issued a certificate of appealability with regards to Watson's ineffective assistance of counsel claims.

- 7 - counsel's unprofessional errors, the result of the proceeding

would have been different.'"

at 62 (quoting Padilla v.

Kentucky,

, 366 (2010)); see also Strickland,

. To prevail, Watson must satisfy both prongs of the

Strickland test. Courts do not need to assess the performance

prong "[i]f it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice."

.

A. Judicially Noticed Facts of the Paul Pierce case

Watson contends that trial counsel's failure to object

to the scope of the judicially noticed facts from the Paul Pierce

case resulted in the jury finding out about testimony from Watson's

involvement in said high-profile case before any other evidence

was introduced in his federal trial. As such, his otherwise

effective defense was impaired.

On direct appeal we addressed the evidentiary aspect of

this matter. See Watson,

. We explained that

"Watson's abstract references to the 'Paul Pierce case' -- in which

he was acquitted, in part due to multiple eyewitness abjurations

-- are especially relevant in that they evince a clear

consciousness of guilt, the full weight of which would be lost on

the jury absent the introduction of some limited factual

foundation" and as such, it was admissible prior bad acts evidence.

. This ruling constitutes the settled law of the case

- 8 - and hence shall not be revisited in habeas review. Fernandez

Garay,

.

In now assessing whether trial counsel's representation

fell below the reasonableness standard, the scope of our review is

limited. First, Watson must show that counsel's performance was

deficient. Id.; see also Strickland,

. Only when

counsel's strategy was "so patently unreasonable that no competent

attorney would have made it" may we hold such performance as

deficient. Tevlin v. Spencer,

(1st Cir. 2010)

(quoting Knight v. Spencer,

(1st Cir. 2006)).

"Review of counsel's performance must be deferential, and

reasonableness must be considered in light of 'prevailing

professional norms.'"

(quoting Strickland,

-

89).

Watson asserts that the district court did not limit

judicial notice to admit only the fact that he was one of the

defendants in the Paul Pierce case but went beyond and pointed to

Bostick's recantation throughout said case. Additionally, he

argues that in his retrial, contrary to the first trial, the

district court failed to instruct the jury not to speculate as to

the reason for Bostick's recanted testimony. Watson, thus, posits

that trial counsel hence failed to object to said judicial notice,

as well as to challenge it at sidebar.

- 9 - The district court found that Watson's argument was a

"repackaging of a claim that has already been rejected by the First

Circuit" and could not be revived through a § 2255 motion.

Moreover, the district court held that, even assuming arguendo

that Watson's claim was valid, "fresh review by [the district

court] does not yield a different outcome."

A trial court may take judicial notice of adjudicative

facts not subject to reasonable dispute where, inter alia, they

"can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned." Fed. R. Evid.

201(b)(2). We held on direct appeal that the district court did

not err in taking judicial notice of Bostick's testimony in the

Paul Pierce case as it constituted facts not reasonably disputed

from a previous criminal case relating to Watson himself. See

id.; see also Watson,

. The district court's

judicial notice to the jury included the following:

After her interview with the Providence Police, and her testimony in the grand jury, but prior to trial, Krystal Bostick reached out to Mr. Watson's defense counsel, met with defense counsel, and signed an affidavit during that meeting in which she recanted her testimony. To recant means to say, well, that's not true . . . . Throughout her testimony, Bostick repeatedly recanted her prior statements and identifications.

We now conclude that Watson has failed to meet the

prejudice prong. Although trial counsel could have indeed objected

to the district court's notice to the jury, given that the notice

- 10 - was not given in error -- as per our ruling on direct appeal -- no

objection was needed. And even assuming it was counsel's failure

to object, this per se, does not warrant setting aside the judgment

in a criminal case unless it influences its outcome. Fernandez-

Garay,

. Here, it is improbable that trial counsel's

purported error changed the result of the case given that abundant

evidence was otherwise introduced at Watson's trial, and which

Watson does not contest now on appeal. Moreover, the district

court stressed in its closing instructions that the jury should

not engage in unsolicited speculations when evaluating the

evidence in the case. The court further instructed the jury that

it was not required to accept as conclusive any judicially noticed

fact. See Fed. R. Evid. 201(f).

On this record, we find that Watson's ineffective

assistance of counsel claim relating to the judicially noticed

statements from the Paul Pierce case fails to meet the clear

showing of prejudice required by Strickland.

B. Tomasetta Affidavit

Watson next argues that trial counsel was ineffective by

failing to object to the admission of the unredacted footnotes in

the Tomasetta affidavit. Footnote 2 in the affidavit partially

details Watson's criminal history, while footnote 3 gathers DEA

agent Tomasetta's belief that Watson had a reputation for violence

- 11 - that made Best "fearful and hesitant." 3 The district court held

that the claim had already been disposed by this court on direct

appeal, and as such, Watson could not relitigate the same

collaterally. And, even if the claim could be addressed, Watson

failed to establish that the admission of such evidence changed

the outcome of the trial.

Circumscribing ourselves to the habeas issue, we

conclude that Watson has failed to demonstrate that trial counsel's

objection would have rendered a different outcome. First, counsel

stated under oath that he was not aware that the final version of

the Tomasetta affidavit given to the jury included unredacted

footnotes. He only found out of this when he reviewed materials

with Watson's appellate counsel. "Under the reasonably competent

assistance standard, 'effective representation is not the same as

errorless representation.'" United States v. Bosch,

(1st Cir. 1978) (quoting Marzullo v. Maryland,

(4th Cir. 1977)). Although the inclusion of said footnotes

constitutes error, it was not ultimately prejudicial. Watson,

. Ample evidence was admitted at trial that exposed

3 On direct appeal, Watson only addressed footnote 2. Watson now argues that footnote 3 also prejudiced him. However, he fails to develop any distinct arguments separate from what he argued on direct appeal as to footnote 3. "[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino,

(1st Cir. 1990)

- 12 - Watson's criminal history. Id. at 168. The jury hence did not

exclusively find out about Watson's delinquent past through the

unredacted footnotes of the Tomasetta affidavit, but rather via

other evidence.

C. Alternative Motive Defense

Watson argues that trial counsel failed to investigate

and present to the jury an alternative motive for the altercation

between him and Best, to wit, Best owing Watson money from Best's

involvement in the music industry. The district court concluded

that Watson's claim failed both prongs of the Strickland test.

The district court found that counsel "made genuine efforts to

introduce evidence of [said] history [between Best and Watson] at

the second trial, to the extent such evidence was available."

We concur that trial counsel did in fact try his best to

introduce evidence of Best's alleged debt to Watson. When trial

counsel cross-examined Albert Rue, he also attempted to introduce

Best's statements to Rue about the money he owed to Watson.

However, the prosecutor objected to the substance of counsel's

question and the district judge sustained it. Counsel went on to

question Rue about whether he knew Best was a government informant,

which he denied. Furthermore, when cross-examining Best himself,

counsel asked him whether he owed money on the street, to which

Best responded in the affirmative.

- 13 - "[T]here is 'a strong presumption that counsel's conduct

falls within the wide range of reasonable professional

assistance.'" United States v. Rodríguez,

(1st

Cir. 2012) (quoting Strickland,

). Here, we cannot

say that trial counsel's actions fell below the norm. To the

contrary, as evidenced by the record, counsel raised before the

jury the issue of whether Watson in fact knew Best was a federal

informant. And, indeed, he strategized to generate reasonable

doubt as to the matter. Additionally, counsel attempted to

introduce the alternate theory but was impeded from doing so by

the district court. Accordingly, Watson does not satisfy the first

Strickland prong.

Even if counsel's performance was deficient, Watson did

not establish "that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland,

. As the district court noted, there was

considerable evidence presented during trial that would have

contradicted an alternative motive. For example, Best testified

that Watson did not take his wallet after stabbing him, thus

eliminating the possibility of setting off the alleged debt. Also,

while stabbing Best, Watson alluded to him being an informant by

stating "So you talking? So you telling, huh?" Watson,

. Finally, Watson and Best had a life-long relationship,

- 14 - and therefore collecting the alleged debt from Best may not have

been impossible.

D. Advocate-Witness Rule

Watson injects to his appeal a further issue of

ineffective assistance which he failed to raise before the district

court. He posits that trial counsel failed to object the district

court not addressing a potential conflict under the advocate-

witness rule, which prohibits an attorney from appearing both as

an advocate and a witness in the same case.4 "[A]rguments not

presented to the trial court are, with rare exceptions, forfeit[ed]

on appeal." Turner v. United States,

(1st Cir.

2012) (quoting In re Redondo Constr. Corp.,

, 121 (1st

Cir. 2012)). See also Singleton v. United States,

(1st Cir. 1994). Although we can review forfeited claims for plain

error, Watson "makes no attempt to show how [said claim] satisfies

the demanding plain-error standard," and "that failure waives his

claim." United States v. Cruz-Ramos,

(1st Cir.

2021) (emphasis in original).

E. Cumulative Error

Watson alternatively posits that the cumulative effect

of his trial attorney's purported errors resulted in

constitutionally deficient representation. Such claim is not

4 See United States v. Angiulo,

(1st Cir. 1990).

- 15 - covered by the certificate of appealability issued by the district

court. Under

(c), we cannot consider an issue

presented in a habeas petition unless a certificate of

appealability is obtained "with respect to that issue."

Butterworth v. United States,

(1st Cir. 2015)

(quoting Peralta v United States,

(1st Cir. 2010)).

Thus, the cumulative error claim is not properly before this court.

Although we have the discretion to expand the scope of the

certificate of appealability sua sponte, we decline to do so in

light of our several rulings herein. See Holmes v. Spencer,

(1st Cir. 2012).

IV. Conclusion

The judgment of the district court dismissing Watson's

petition for habeas corpus is

AFFIRMED.

- 16 -