McClary v. Pepe

69 F.3d 531 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Robert E. McCLARY, Petitoner, Appellant, v. Peter A. PEPE, Jr., et al., Respondents, Appellees. No. 94-2294. United States Court of Appeals, First Circuit. Nov. 9, 1995. Robert E. McClary on brief pro se. Scott Harshbarger, Attorney General, and Pamela L. Hunt, Assistant Attorney General, on brief for appellees. Before TORRUELLA, Chief Judge, SELYA and BOUDIN, Circuit Judges. PER CURIAM. [1] Pro se plaintiff Robert McClary appeals from the summary dismissal of his habeas corpus petition. He claims that his conviction for trafficking cocaine is unconstitutional because the prosecutor violated Doyle v. Ohio, 426 U.S. 610 (1976), by improperly cross-examining McClary and commenting on McClary's post-arrest silence in his closing argument. [2] We have thoroughly reviewed the record and the parties' briefs on appeal. We are persuaded that the habeas petition was properly dismissed under Anderson v. Charles, 447 U.S. 404, 408-09 (1981), (per curiam), and Grieco v. Hall, 641 F.2d 1029, 1032-36 (1st Cir.1981). We note that even if we assumed arguendo that Doyle error is present, habeas relief is not warranted here. The record discloses that the evidence against McClary was strong and that the error could not have had a substantial and injurious effect on the verdict. See Brecht v. Abrahamson, 113 S.Ct. 1711, 1722 (1993). While we need not decide whether the "harmless beyond a reasonable doubt" test of Chapman v. California, 386 U.S. 18, 24 (1967), should be applied to this appeal1, the evidence indicates that any alleged Doyle error was harmless under this test as well. Accordingly, the judgment of the district court is affirmed. Footnotes [1] While McClary made this argument below, he has failed to develop it on appeal. Thus, the point has been waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990)