Smith v. Dickhaut , 836 F.3d 97 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1770
JAMES J. SMITH,
Petitioner, Appellant,
v.
THOMAS DICKHAUT,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Kayatta and Barron, Circuit Judges,
McAuliffe,* District Judge.
Stewart T. Graham, Jr., with whom Graham & Graham was on
brief, for appellant.
Maura Healey, with whom Jennifer K. Zalnasky and the Office
of the Massachusetts Attorney General was on brief, for appellee.
September 7, 2016
_____________________
*Of the District of New Hampshire, sitting by designation.
McAULIFFE, District Judge. Petitioner, James Smith, was
convicted by a jury in the Commonwealth of Massachusetts of first-
degree murder, armed home invasion, and unlawful possession of a
firearm. His motion for a new trial was denied and he appealed
both the denial of that motion and his convictions to the
Massachusetts Supreme Judicial Court (“SJC”). The SJC
consolidated those appeals and reversed Smith’s conviction for
armed home invasion, but upheld the remaining convictions. The
SJC also affirmed the trial judge’s denial of Smith’s motion for
a new trial. Commonwealth v. Smith, 946 N.E.2d 95 (2011). Smith
then sought federal habeas corpus relief from the United States
District Court for the District of Massachusetts, claiming that he
had been deprived of his constitutionally protected right to
effective legal representation when trial counsel failed to fully
and properly advise him about his right to testify at trial. In
a closely related claim, Smith also asserted that, because he
waived his right to testify based upon counsel’s erroneous (and
constitutionally deficient) advice, that waiver was invalid. And,
finally, Smith asserted that trial counsel provided deficient
representation by failing to marshal and present exculpatory
evidence in his defense. The district court denied the petition
and Smith has appealed. We affirm.
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I. Standard of Review
The district court’s denial of Smith’s petition for
habeas corpus relief is reviewed de novo. Barbosa v. Mitchell,
812 F.3d 62, 66 (1st Cir. 2016).
Since passage of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C.
§ 2254, the power to grant federal habeas relief to a state
prisoner with respect to claims adjudicated on the merits in state
court has been substantially limited. A federal court may disturb
a state conviction if the state court’s resolution of the
constitutional issues before it “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.” 28 U.S.C. ' 2254(d)(1). The Supreme Court has
explained the distinction between decisions that are “contrary to”
clearly established federal law, and those that involve an
“unreasonable application” of that law, as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
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Williams v. Taylor, 529 U.S. 362, 412—13 (2000). The Court also
noted that an “incorrect” application of federal law is not
necessarily an “unreasonable” one.
[T]he most important point is that an unreasonable
application of federal law is different from an
incorrect application of federal law . . . . Under
§ 2254(d)(1)’s “unreasonable application” clause, then,
a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.
Id. at 410—11 (emphasis in original). So, to prevail, a state
habeas petitioner must demonstrate that “the state court’s ruling
on the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Alternatively, federal habeas relief may be granted if
the state court’s adjudication “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.” 28 U.S.C.
§ 2254(d)(2). Section 2254(e)(1) goes on to provide that “a
determination of a factual issue made by a State court shall be
presumed to be correct” and the habeas petitioner “shall have the
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burden of rebutting the presumption of correctness by clear and
convincing evidence.”
Here, the parties disagree at the outset about the degree
of deference we should afford to factual findings made by the state
court. Pointing to the language of § 2254(d)(2), Smith asserts
that he need only demonstrate that such factual findings were
“unreasonable.” The Commonwealth, on the other hand, says factual
findings made by the state court are, under § 2254(e)(1), presumed
to be correct, and Smith bears the burden of rebutting that
presumption by clear and convincing evidence. As this court has
previously noted, the circuit courts of appeal disagree as to the
proper interplay between §§ 2254(d)(2) and 2254(e)(1). See, e.g.,
John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender,
507 F.3d 50, 58—59 (1st Cir. 2007).
The Supreme Court seemed poised to clarify the point in
2010, when it granted certiorari to answer “the question of how
§§ 2254(d)(2) and (e)(1) fit together.” Wood v. Allen, 558 U.S.
290, 300 (2010). In the end, however, the Court concluded that
the outcome of the case before it did “not turn on any interpretive
difference regarding the relationship between these provisions.”
Id. Even giving the petitioner in Wood the benefit of
§ 2254(d)(2)’s standard (which is less deferential to state court
findings of fact), the Court concluded that he was not entitled to
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habeas relief because the state court’s findings of fact were not
unreasonable in light of the evidence presented. Id. at 301.
This court has noted the Supreme Court’s silence on
precisely how section 2254(d)(2) and 2254(e)(1) fit together, and
it has yet to address a case in which it was necessary to resolve
that issue. See, e.g., Robidoux v. O'Brien, 643 F.3d 334, 338 n.3
(1st Cir. 2011) (“We have previously declined to delve into the
relationship between subsections (d)(2) and (e)(1), as has the
Supreme Court, and again have no need to do so.”) (citations
omitted). At the same time, this circuit has routinely held
petitioners to the § 2254(e)(1) “clear and convincing” standard
without reference to § 2254(d)(2), albeit not in a case in which
resolving the fit between the two sections would appear to have
made any difference. See, e.g., Linton v. Saba, 812 F.3d 112, 116
(1st Cir. 2016) (“We must accept the state court findings of fact
unless convinced by clear and convincing evidence that they are in
error.”) (citations and internal punctuation omitted); Jewett v.
Brady, 634 F.3d 67, 75 (1st Cir. 2011) (“State court findings of
fact are presumed to be correct unless the petitioner rebuts this
presumption of correctness with clear and convincing evidence.”)
(citations and internal punctuation omitted). The record in this
case allows us to proceed in similar fashion, because even if we
were to assess the state court’s factual determinations under the
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more petitioner-friendly standard set out in § 2254(d)(2), rather
than the more deferential standard in 2254(e)(1), Smith would still
not be entitled to the relief he seeks.
II. Factual Background
In light of the evidence presented at Smith’s trial and
the jury’s verdict, the SJC found the relevant facts underlying
his convictions to be as follows. In June of 2006, Smith moved
into the apartment of Patricia Higgs in North Adams, Massachusetts.
During his relatively brief stay, Smith sold a variety of drugs
from Higgs’ apartment, including cocaine, crack, and heroin. He
employed Higgs in the business, compensating her with money and
drugs. Eventually, however, Higgs and Smith had a falling out and
she asked him to leave. About two weeks later, Kijona Osmond, the
murder victim, moved into Higgs’ apartment and began operating a
similar drug-trafficking business. At that point, five people
were living in the apartment including Higgs, Osmond, and a woman
named Angela Stark.
On July 26, 2006, at approximately 2:00 a.m., Smith went
to a Dunkin’ Donuts near Higgs’ apartment and spoke with one of
the store’s employees. Shortly before leaving, he posed an
unusual question: Whether she would contact the police if she saw
someone get shot. Smith then went to Higgs’ apartment and knocked
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on the door. Higgs opened the door and saw Smith standing in the
threshold holding a firearm. Smith grabbed Higgs by the neck and
threw her against the wall and, while holding the weapon to her
head, demanded to know where the “stuff” was. Higgs said, “Please
don’t do this, my baby is in the other room.” Stark, who was in
the kitchen when Smith entered the apartment, confirmed the violent
nature of his entry and testified that Higgs pleaded with him,
“don’t do it, my baby is here.”
At that point, Osmond tried to make his way to the
kitchen, where the back door to the apartment was located. Smith
released Higgs and attempted to grab Osmond’s shirt. Osmond
turned to confront Smith, at which point Smith fired a single round
into Osmond’s neck. Osmond immediately collapsed onto his
stomach, with the left side of his face on the floor. Smith
stepped over Osmond, straddled his prone body, and fired a second
(fatal) shot into the back of his head. Smith then leaned down
to remove money and drugs from Osmond’s pockets and, after
threatening the remaining occupants of the apartment and warning
them to keep their mouths shut, fled the building.
Higgs, who had escaped the apartment when Smith released
her to confront Osmond, returned and discussed with Stark the
potential legal implications should police discover contraband in
Osmond’s pockets when they arrived. The women went through his
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pockets, removed whatever Smith had left behind, and left the
apartment. Higgs then telephoned police on Stark’s mobile phone.
North Adams police officers, as well as a Massachusetts state
trooper, soon arrived at the scene, where they discovered the
victim’s body lying on the floor with a loaded handgun beside him.
Meanwhile, Smith went to the apartment of some
acquaintances, where he forced the door open. He told them he had
threatened Higgs and held a gun to her head. He also admitted he
shot Osmond in the throat, saying he thought Osmond was going to
shoot him. Smith also confessed that after Osmond had fallen to
the floor, he shot him again in the back of the head. One of the
occupants of the apartment testified at trial that Smith had said
that he was motivated by the fact that “they were making the money
and he wasn’t.” Smith then told the occupants of the apartment
that because they were now witnesses to his confession, he was
going to have to kill them as well, saying “There will be no
witnesses” and, therefore, “Everyone must die.” Eventually,
however, Smith calmed down and fell asleep. He was awakened when
police officers came to the apartment to interview its occupants.
Smith fled out a bedroom window but was soon located and taken
into custody by North Adams police officers.
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III. Procedural Background
Smith was tried in the Berkshire County Superior Court.
A jury convicted him of murder in the first degree on theories of
both deliberate premeditation and felony-murder (the predicate
crime being armed home invasion, for which Smith was also
convicted). The jury also found Smith guilty of unlawful
possession of a firearm. Smith was acquitted, however, of three
less serious crimes relating to threats he allegedly made against
the occupants of Higgs’ apartment.
On appeal, the SJC reversed Smith’s armed home invasion
conviction, concluding that the indictment failed to adequately
identify the specific home invasion at issue, i.e., Smith’s
forcible entry into Higgs’ apartment, or his subsequent forcible
entry into the apartment of his acquaintances. Nevertheless, the
court upheld Smith’s felony-murder conviction, concluding that
because the trial court’s instructions to the jury focused the
jury’s consideration on the incident at Higgs’ apartment, there
could be no doubt that Smith was convicted of felony-murder on the
appropriate predicate offense: the armed home invasion of Higgs’
apartment. Finally, the SJC affirmed the trial court’s denial of
Smith’s motion for a new trial, concluding that Smith had validly
waived his right to testify at trial, and holding that his defense
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counsel did not mislead him or provide constitutionally deficient
representation.
Before us are three of the claims Smith raised in his
federal habeas petition: first, that he waived his right to testify
at trial based upon incorrect legal advice and, therefore, the
waiver was invalid; second, that trial counsel provided
constitutionally deficient representation when he failed to
properly advise Smith about important consequences associated with
waiving his right to testify; and, finally, that trial counsel
provided constitutionally deficient representation by failing to
marshal available evidence to rebut the armed home invasion charge,
undermine the felony-murder charge, and support Smith’s claim of
self-defense.
In a thorough and thoughtful opinion, the district court
rejected each claim. The district court granted Smith a
certificate of appealability and he appealed.
IV. Discussion
To prevail before the SJC on his ineffective assistance
claims, Smith bore the burden of satisfying the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984).
That is, he was required to demonstrate that counsel’s performance
fell below an objective threshold of reasonable care and that
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counsel’s deficient performance prejudiced him. See id. at 687.
To satisfy the prejudice test, Smith had to establish that, but
for counsel’s deficient performance, there was a reasonable
probability that the outcome of his trial would have been
different. See Turner v. United States, 699 F.3d 578, 584 (1st
Cir. 2012). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. In other words, the likelihood that the outcome of the trial
would have been different “must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112.
In the context of a federal habeas proceeding, claims of
ineffective assistance of counsel present mixed questions of law
and fact which are reviewed under § 2254(d)(1)’s “unreasonable
application” clause. See Teti, 507 F.3d at 57. Consequently, the
question before this court (as it was before the district court)
is whether the SJC’s application of the Strickland standard to
Smith’s ineffective assistance claims was “unreasonable.” Our
inquiry is quite different from a de novo determination of whether
trial counsel’s performance fell below the standards established
in Strickland.
Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal
conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
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questions are different. For purposes of § 2254(d)(1),
“an unreasonable application of federal law is different
from an incorrect application of federal law.” A state
court must be granted a deference and latitude that are
not in operation when the case involves review under the
Strickland standard itself.
Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410).
In this case, then, we must look for an “unreasonable application”
of Strickland.
A. Advice Regarding Smith’s Waiver of His Right to Testify
Turning first to Smith’s claim of ineffective assistance
as it relates to his testimonial waiver, we start with the basics:
“a defendant’s right to testify in his own defense is a
‘fundamental constitutional right’ and is ‘essential to due
process of law in a fair adversary process.’” Casiano-Jiménez v.
United States, 817 F.3d 816, 820 (1st Cir. 2016) (quoting Rock v.
Arkansas, 483 U.S. 44, 51, 53 n.10 (1987)). The defendant’s lawyer
“bears the primary responsibility of informing and advising the
defendant of this right, including its strategic ramifications.”
Id. Counsel is also obliged to explain that the decision to
testify or not belongs exclusively to the defendant. Importantly,
however, no specific requirements govern the nature or content of
those essential conversations between counsel and his or her
client. See id. (“In determining whether a lawyer has adequately
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apprised his client of this fundamental right, no particular
formulation is required. There are no magic words; the inquiry
is whether ‘some sort of conversation’ has occurred between the
attorney and his client, such that ‘the client can make a knowing
and informed decision’ regarding whether to testify in his own
defense.”) (quoting Owens v. United States, 483 F.3d 48, 60 n.10
(1st Cir. 2007)).
In support of his assertion that trial counsel provided
constitutionally deficient advice regarding his right to testify,
Smith relies upon his own affidavit and an affidavit filed by trial
counsel. In the latter, counsel relates that: (1) he did discuss
with Smith whether or not he should testify; (2) Smith informed
counsel of his desire to testify, so he might tell his version of
the events; (3) counsel informed Smith that, on cross-examination,
the prosecutor would not simply allow him to re-tell his story but
would, instead, restrict him to answering questions put to him;
(4) counsel advised Smith that, based upon the evidence introduced
by the Commonwealth, he did not believe Smith had a viable theory
of self-defense; (5) counsel told Smith that, in his professional
opinion, he did not believe the jury would credit Smith’s proposed
testimony; and, finally, (6) counsel told Smith that if he followed
counsel’s advice and did not testify, then if he were convicted,
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he could challenge both his waiver of the right to testify and
counsel’s advice post-trial.
Seizing upon that final bit of advice, Smith says he
understood counsel to mean that his decision to waive the right to
testify was “not final” and that, if convicted, he could obtain a
reversal on appeal by simply challenging counsel’s advice and his
waiver. Moreover, he claims he waived his right to testify based
upon that (mistaken) understanding of counsel’s advice.
Consequently, says Smith, his waiver was not valid.
Trial counsel’s actual advice —— “that if [Smith]
followed my advice and did not testify, then if he were convicted
he could challenge both his failure to testify and my advice post-
trial” —— seems, on its face, to be rather unremarkable. It is
certainly correct to say that Smith would be free, if convicted,
to challenge counsel’s advice on appeal, presumably arguing that
for some reason it was patently unreasonable and amounted to
ineffective assistance. Additionally, Smith could argue (as he
does) that his testimonial waiver was invalid to the extent he
relied upon counsel’s purportedly unsound advice. Of course, if
counsel had actually told Smith that he could count on obtaining
a reversal on appeal if he waived his testimonial right and was
subsequently convicted, a legitimate issue would arise with
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respect to both the competency of counsel’s representation and the
validity of Smith’s waiver.
But, both of the Massachusetts courts that reviewed
Smith’s claims concluded that did not happen. The state trial
court determined that counsel’s advice to Smith concerning his
right to testify (and whether he should exercise or waive that
right) was neither incorrect nor constitutionally deficient. The
trial judge also found that Smith’s claimed understanding of
counsel’s advice was not credible. The court supported its
credibility determination by noting that: (1) Smith’s affidavit
was self-serving and conclusory; (2) defense counsel was “very
experienced” and “is frequently called upon in murder cases”;
(3) the record “contains ample evidence that [Petitioner] and his
trial counsel discussed his right to testify”; and, (4) through
his affidavit, trial counsel “did not indicate any willingness to
accept fault for allegedly misadvising” Smith. Having fully
considered Smith’s claim, as well as the legal and factual support
upon which he relied, the trial judge concluded that the “record
is clear . . . that [Petitioner] made a voluntary, strategic
decision not to testify after adequate consultation with his trial
counsel.”
On appeal, the SJC also construed Smith’s affidavit as
claiming that he thought his decision not to testify would allow
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him to later obtain a reversal of any conviction. Smith, 946
N.E.2d at 105—06. See also id. at 106 (construing Smith’s
“purported misunderstanding” of counsel’s advice to mean that he
could have a “do over” if he followed counsel’s advice, elected
not to testify, and was subsequently convicted). Like the trial
court, the SJC concluded that Smith failed to demonstrate that
trial counsel provided either an erroneous or an incomplete
explanation of his constitutionally protected right to testify at
trial. The SJC noted, inter alia, that trial counsel was both
“thorough and highly experienced” (to the point of documenting on
the record the fact that he and Smith had discussed whether Smith
wished to testify), counsel informed Smith that he had an absolute
right to testify, and counsel explained to Smith why he believed
Smith should elect not to testify.1 Indeed, the SJC found “no
error in the advice offered by counsel.” The SJC also affirmed
1 Counsel’s transcribed conversation with Smith included the
following exchange:
Counsel: [Mr. Smith], I have asked to have the “steno”
here because you and I have had conversations in the
back that are in private and we have discussed whether
or not you are desirous of taking the stand and
testifying in this matter. I have explained to you that
it’s your absolute right. I have offered you an opinion
relative to what I think you should do. And I would
like you to clarify for the record whether or not you
wish to testify in this particular matter.
[Smith]: No, I wish not to testify in this matter.
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the trial judge’s factual finding that Smith’s affidavit
statements regarding his understanding (or misunderstanding) of
counsel’s advice were not credible.
We agree with the district court that Smith failed to
demonstrate that the SJC’s resolution of his ineffective
assistance claim was “contrary to, or involved an unreasonable
application of, clearly established Federal law,” as expressed in
Strickland. 28 U.S.C. § 2254(d)(1). Nor has Smith demonstrated
that either the trial judge’s or the SJC’s credibility
determination was “based on an unreasonable determination of facts
in light of the evidence presented.” 28 U.S.C. § 2254(d)(2).
While counsel’s advice arguably might have been more precise or
complete (say, by informing Smith that if he were convicted, the
probability of successfully challenging counsel’s advice and/or
his waiver on appeal was very low), it would not be unreasonable
to conclude, as the SJC did, that the advice given was neither
inaccurate nor misleading. Nor has Smith shown that the state
courts unreasonably rejected his claimed confusion about his
appellate rights as not credible.
For the same reasons, it necessarily follows that
Smith’s renewed challenge to his decision to waive his right to
testify fails. The SJC’s conclusion that Smith’s waiver was not
induced by erroneous legal advice was not unreasonable under
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§ 2254(d)(1), nor was its decision to defer to the trial court’s
factual finding that Smith had not actually misunderstood
counsel’s advice unreasonable under § 2254(d)(2). Those legal
conclusions and factual findings, which Smith has not shown to
have been incorrect or unreasonable in any respect, preclude his
invalid waiver theory.2
Parenthetically, with respect to Smith’s ineffective
assistance claim, the court notes that even if Smith had shown
that trial counsel’s advice was incorrect and amounted to
ineffective assistance and if he further demonstrated that the
SJC’s resolution of his claim was based upon an unreasonable
application of the first part of the Strickland test, his claim
would still fail, because he has not shown any prejudice resulting
from counsel’s allegedly incorrect advice. See generally
Strickland, 466 U.S. at 694. Specifically, Smith has not shown
(nor, given the record evidence, could he show) that, had he
2 As the district court noted, Smith’s prior experience in the
criminal justice system is one of the several factors that
undermine his asserted misunderstanding of trial counsel’s advice
about waiving the right to testify and/or his appellate rights.
See, e.g., Parke v. Raley, 506 U.S. 20, 37 (1992) (“A defendant’s
prior experience with the criminal justice system [is] relevant to
the question of whether he knowingly waived constitutional
rights.”). Additionally, the district court noted that Smith has
pled guilty to other charges on at least one occasion in the past,
thereby demonstrating a familiarity with the process of waiving
constitutional rights.
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testified, there is a reasonable probability that the outcome of
his trial would have been different.
As the SJC discussed in detail, in order to credit
Smith’s version of events regarding the armed home invasion, the
jury would have had to “disbelieve the testimony of two percipient
witnesses, Higgs and Stark, whose testimony suggested a violent
entrance to the apartment.” It would also have had to disbelieve
the testimony of Smith’s acquaintances, to whom he had confessed
that, upon entering Higgs’ apartment, he held a gun to her head.
Additionally, to accept Smith’s claim that he acted in self-
defense, the jury would have had to be persuaded that: Smith
entered the apartment peacefully and posed no apparent threat to
anyone, yet the victim approached him, drew a firearm, and
threatened him with it; although Smith’s weapon was not drawn, he
was able to access it and fire two shots in self-defense before
the victim could respond; and, there was a plausible explanation
for the fact that, despite Smith’s claim of rapid defensive
shooting, the two bullets from his firearm entered the victim’s
body at very different angles and from different directions
(evidence that, according to the medical examiner, supported the
Commonwealth’s theory that the second, fatal shot was fired while
the victim was lying face-down on the floor). Both the trial
court and the SJC concluded that Smith’s proposed version of the
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events in question was simply not credible —— a conclusion shared
by Smith’s experienced trial counsel, as expressed in his
affidavit. Finally, had Smith testified at trial, he obviously
would have exposed himself to potential cross-examination and
impeachment concerning his criminal activities in Higgs’
apartment, his prior convictions, and the inconsistent statements
he made to the occupants of the apartment to which he fled (about
why he had killed the victim).
In short, even if Smith had testified and presented his
version of events to the jury, it is not reasonably probable that
the outcome of his trial would have been different. See
Harrington, 562 U.S. at 112. Consequently, even if trial
counsel’s advice were deemed constitutionally deficient, Smith
suffered no resulting prejudice.
B. Burden of Proof with Respect to the Testimonial Waiver
Next, Smith advances a closely related claim of error.
The SJC, he argues, erroneously (and in contravention of Supreme
Court precedent) imposed upon him the burden to demonstrate that
his waiver of the right to testify was invalid. Instead, says
Smith, the SJC should have required the Commonwealth to prove that
he knowingly and intentionally relinquished a known
constitutionally protected right. In Smith’s view, that error
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“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.” 28 U.S.C.
§ 2254(d)(1). We disagree.
First, nothing in the record suggests that the SJC
unreasonably applied the well-established principle that a
criminal defendant’s waiver of his constitutionally protected
right to testify must be both knowing and voluntary. Indeed, the
SJC recognized that the “right to testify on one’s own behalf in
a criminal case is fundamental” and specifically recognized that
any waiver of that right must be both knowing and intelligent.
To be sure, consistent with Massachusetts law, the SJC
did require Smith to bear the burden of demonstrating that his
waiver of the right to testify at trial was not knowing and
voluntary. Smith, 946 N.E.2d at 105 (“When asserting that errors
of counsel deprived him of the right to testify, a defendant has
the burden of proving that his waiver of his right to testify was
invalid.”) (citations and internal punctuation omitted). The SJC
found that Smith failed to carry that burden, and concluded that
his waiver was not invalid. But, with respect to properly
allocating the burden of proof regarding testimonial waivers, “the
Supreme Court has never articulated the standard for assessing
whether a criminal defendant has validly waived his right to
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testify or determined who has the burden of production and proof
under particular circumstances.” Jenkins v. Bergeron, 824 F.3d
148, 153 (1st Cir. 2016) (citing Thompson v. Battaglia, 458 F.3d
614, 619 (7th Cir. 2006)). If federal law is not clearly
established by the Supreme Court, “then per force the state court
decision cannot be either contrary to or an unreasonable
application of clearly established federal law.” Jenkins, 824
F.3d at 153 (quoting Likely v. Ruane, 642 F.3d 99, 102 (1st Cir.
2011)).
The absence of controlling Supreme Court precedent
establishing which party bears the burden of proof necessarily
dooms Smith’s assertion that the SJC acted contrary to clearly
established federal law when it imposed upon him the obligation to
show that his waiver was invalid.
C. Failure to Support Self-Defense Theory
In his final claim, Smith asserts that trial counsel
provided constitutionally deficient representation by failing to
marshal (and introduce at trial) available evidence that would
have rebutted the armed home invasion charge and supported Smith’s
claim of self-defense. He argues that the SJC’s resolution of
that claim on appeal was contrary to, or involved an unreasonable
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application of, the standards set out in Strickland. That claim
also fails.
In support of his claim, Smith first takes issue with
the SJC’s statement of facts relevant to his convictions. Then,
he paints a picture of the events in question that is supportive
of his theory of the case —— that he entered Higgs’ apartment
peacefully and at her invitation, and that he shot the victim in
self-defense. Finally, he attempts to persuade the court that
trial counsel was ineffective for failing to introduce evidence
tending to prove that account. We are not persuaded.
As outlined above, the evidence presented at trial
overwhelmingly supported the jury’s guilty verdict on the charge
of first-degree murder. In rejecting Smith’s claim that trial
counsel was ineffective by failing to present evidence supportive
of Smith’s alternate theory of the case, the trial court found
that Smith’s self-defense theory was unpersuasive and rested
largely on an entirely speculative opinion of a ballistics expert
who lacked both the knowledge and the qualifications to testify
about the matters upon which Smith relies. The SJC agreed, noting
that in light of the evidence presented at trial, Smith’s theory
of the case was not credible and the risks associated with his
testifying at trial were substantial.
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Smith has not overcome the presumption of correctness
afforded to the state court’s factual findings, nor has he
demonstrated that those factual findings were, in light of the
evidence presented at trial, unreasonable. See 28 U.S.C.
§ 2254(d)(2). Consequently, he cannot show that trial counsel
provided constitutionally deficient representation by either
failing to call Smith to testify in his own defense or by
neglecting to present other unidentified evidence supportive of
Smith’s version of the events —— quintessentially strategic
decisions by counsel, that were supported by the record evidence
and to which substantial deference is afforded. See Strickland,
466 U.S. at 689 (admonishing lower courts to afford trial counsel
“wide latitude . . . in making tactical decisions.”). See also
Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (“[T]his court
has held that a lawyer’s performance is deficient under Strickland
only where, given the facts known at the time, counsel’s choice
was so patently unreasonable that no competent attorney would have
made it.”) (citation and internal punctuation omitted).
Because Smith has not, and cannot, show that the SJC’s
resolution of his second ineffective assistance claim was contrary
to, or involved an unreasonable application of, the Strickland
standard, the district court properly rejected it.
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Conclusion
For the foregoing reasons, Petitioner has failed to
sustain his burden under 28 U.S.C. § 2254(d) as to any of the
claims advanced on appeal. The judgment of the district court
denying the petition for habeas corpus relief is affirmed.
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