Jenkins v. Bergeron , 824 F.3d 148 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1081
    SHAUN JENKINS,
    Petitioner, Appellant,
    v.
    KAREN BERGERON,
    Superintendent, Old Colony Correctional Center,
    Respondent, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Nathaniel M. Gorton, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Selya and Lynch, Circuit Judges.
    Stewart T. Graham, Jr., with whom Graham & Graham was on
    brief, for appellant.
    Thomas E. Bocian, Assistant Attorney General, Criminal
    Bureau, with whom Maura Healey, Attorney General of Massachusetts,
    was on brief, for appellee.
    May 27, 2016
    LYNCH, Circuit Judge.          Shaun Jenkins was convicted in
    Massachusetts state court in 2005 of the first-degree murder of
    his cousin and was sentenced to life in prison. He did not testify,
    and this appeal involves the question of who has the burden of
    showing why under the facts of this case.             The state trial court
    denied Jenkins's motion for a new trial, and the Supreme Judicial
    Court ("SJC") affirmed both the conviction and the denial of the
    new trial motion.     See Commonwealth v. Jenkins, 
    941 N.E.2d 56
    , 62
    (Mass. 2011).
    Jenkins appeals from the Massachusetts federal district
    court's denial of his petition for a writ of habeas corpus.               See
    Jenkins v. Bergeron, 
    67 F. Supp. 3d 472
    (D. Mass. 2014).                  The
    district court granted a certificate of appealability only on the
    issue of Jenkins's waiver of his right to testify in his own
    defense.   Jenkins v. Bergeron, No. 12-cv-10793, 
    2015 WL 461911
    , at
    *2 (D. Mass. Feb. 4, 2015).         We address only that claim.
    Jenkins    argues       that   he   did    not   knowingly    and
    intelligently waive his right to testify because his attorney
    unilaterally decided that he would not testify.                   The habeas
    petition is based on the contention that the choice whether to
    testify was his, not his counsel's, and that the record establishes
    that he was denied that choice.
    Since we find that the SJC adjudicated Jenkins's claim
    on   the   merits,    we   engage    in    deferential   review   under   the
    - 2 -
    Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
    See 28 U.S.C. § 2254(d).        Because there is no Supreme Court
    precedent clearly establishing the proper standard and burdens for
    assessing whether a criminal defendant has validly waived his right
    to testify on facts like these, Jenkins is not entitled to habeas
    relief.    His claim depends on too broad a characterization of
    waiver of federal constitutional rights, not drawn from cases of
    like circumstances.    We affirm.
    I.
    In April 2005, Jenkins was convicted by a jury of the
    first-degree murder of his cousin, Stephen Jenkins.        The SJC's
    opinion has a full recitation of the underlying facts.            See
    
    Jenkins, 941 N.E.2d at 62
    –75.       Jenkins did not take the stand at
    his trial.     Before the end of the trial, the judge engaged in a
    direct colloquy with Jenkins, during which the judge informed
    Jenkins that he had the right to testify in his own defense.
    Jenkins responded affirmatively when asked whether he understood
    his right and stated that he had no questions regarding it.       See
    
    id. at 70.
    While his direct appeal to the SJC was pending, Jenkins
    filed in the state trial court a motion for a new trial.      Jenkins
    claimed, inter alia, that he had not knowingly and intelligently
    waived his constitutionally protected right to testify in his own
    defense.   See Casiano-Jiménez v. United States, 
    817 F.3d 816
    , 820
    - 3 -
    (1st Cir. 2016) ("In any trial, 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.'"
    (quoting Rock v. Arkansas, 
    483 U.S. 44
    , 51, 53 n.10 (1987))).   He
    submitted two affidavits, one from his defense attorney and one
    from Jenkins himself.   His attorney's affidavit stated that he and
    Jenkins discussed whether or not Jenkins should testify, that he
    advised Jenkins not to testify because Jenkins faced potentially
    damaging impeachment and cross-examination, and that based on
    those factors, "I decided not to call him as a witness."
    Jenkins's affidavit stated that he wanted to testify and
    told his attorney as much, and that his attorney "did not explain
    to [him] that the decision to testify was [his] decision to make
    and that [he] had a constitutional right to testify if [he] so
    chose, but that [he] would waive that right by not testifying."
    Jenkins also stated that after explaining the impeachment and
    cross-examination concerns, his attorney said "that he was not
    going to put [him] on the witness stand."
    Jenkins argued in his new trial motion that "[t]here are
    three problems with counsel's actions, all of which serve to render
    invalid any possible waiver of the right to testify": (1) the right
    to testify "cannot be waived by counsel," and "[i]t follows from
    the requirements of waiver that if a defendant does not know of
    his constitutional right to testify, he cannot validly waive it";
    - 4 -
    (2) "a valid waiver cannot be based on erroneous or substandard
    legal advice," and the reasons his attorney gave him for not taking
    the stand were incorrect; (3) his failure to testify was not
    harmless error, and declining to call him constituted ineffective
    assistance of counsel.       The same judge who presided over Jenkins's
    trial denied the new trial motion.            An order denying the motion
    stated, "After hearing on 6/30/09, Defendant Shaun Jenkins' Motion
    for New Trial is DENIED."
    Jenkins appealed, and the SJC affirmed.            
    Jenkins, 941 N.E.2d at 69
    –70, 75.        The SJC characterized Jenkins's argument as
    follows: "The defendant argued in a motion for a new trial that
    his waiver of his right to testify was not valid because he did
    not understand that the decision whether to testify was his alone."
    
    Id. at 69.
        The SJC recognized that the right to testify is a
    fundamental right that must be waived knowingly and intelligently.
    
    Id. Importantly for
    this case, it also stated that "[i]t is the
    defendant's burden to prove that he did not waive this right
    knowingly and intelligently." 
    Id. (citing Commonwealth
    v. Lucien,
    
    801 N.E.2d 247
    ,   258    (Mass.    2004)).1    Jenkins   calls   this   a
    fundamental flaw: the prosecution, he says, bears the burden.
    1   As support for the proposition that the defendant bears
    the burden of proving that his waiver of his right to testify was
    invalid, the SJC cited Lucien, in which it had cited to
    Commonwealth v. Freeman, 
    564 N.E.2d 11
    , 14–15 (Mass. App. Ct.
    1990).    See 
    Lucien, 801 N.E.2d at 258
    .        In Freeman, the
    Massachusetts Appeals Court reasoned: "Here, the decision not to
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    The court concluded that "[t]he [trial] judge did not
    abuse his discretion in concluding that the defendant's waiver was
    the product of a purposeful and informed judgment on his part."
    
    Id. at 70.
        The SJC stated that Jenkins had admitted that he had
    discussed whether to testify with his attorney, that the trial
    judge had engaged in a colloquy with Jenkins in which he explained
    that Jenkins had a right to testify, that Jenkins affirmed that he
    understood his right and that he had no questions regarding that
    right,   and   that   "there   was    no     indication   of   any    dispute    or
    disagreement between the defendant and his counsel as to trial
    tactics or 'of any kind.'"           
    Id. at 69,
    70 & n.10.           Jenkins does
    not dispute that description.
    II.
    On May 3, 2012, Jenkins filed a petition for a writ of
    habeas corpus in the Massachusetts federal district court.                     In a
    memorandum of law, he argued, inter alia, that de novo review
    should   apply   to   his   right    to    testify   claim     because   the    SJC
    testify was made by the defendant in consultation with his counsel.
    The Commonwealth was not a party to the defendant's decision-
    making process. The defendant, not the Commonwealth, has control
    over the relevant facts. He is, thus, better situated to prove
    his claim than is the Commonwealth to disprove 
    it." 564 N.E.2d at 15
    . The court distinguished a waiver of the right to testify case
    from "a case of claimed deprivation of a constitutional trial right
    through government coercion."     
    Id. Unlike that
    type of case,
    "[h]ere, the defendant, who is asserting 'facts which were neither
    agreed upon nor apparent on the face of the [trial] record,' must
    prove those facts." 
    Id. (second alteration
    in original) (quoting
    Commonwealth v. Bertrand, 
    432 N.E.2d 78
    , 83 (Mass. 1982)).
    - 6 -
    overlooked    or     misunderstood     his    subsidiary         argument    that   his
    waiver was invalid because his attorney "unilaterally decided not
    to have him testify."         Instead, he argued, the SJC addressed a
    different argument -- which he represented was not raised -- that
    his waiver was not knowing and intelligent because he was not aware
    that the decision to testify was his to make.2
    On    December   19,     2014,    the        district    court    denied
    Jenkins's petition.       See 
    Jenkins, 67 F. Supp. 3d at 480
    .                The court
    noted that "[c]ontrary to petitioner's contention, in addition to
    determining that the petitioner was aware of his right to testify,
    the SJC held that the trial judge 'did not abuse his discretion in
    concluding that the defendant's waiver was the product of a
    purposeful and informed judgment on his part.'"                      
    Id. at 476–77
    (quoting 
    Jenkins, 941 N.E.2d at 70
    ).                 The federal habeas court
    declined to review Jenkins's claim de novo, instead applying
    deferential AEDPA review.            
    Id. at 477;
    see 28 U.S.C. § 2254(d).
    The   court       concluded   that    "[t]here       is     no    standard    clearly
    established by the United States Supreme Court addressing the
    circumstances under which a criminal defendant waives the right to
    2   The argument, in fact, was raised.     In his new trial
    motion, Jenkins stated that "counsel never advised him that he had
    an absolute right to testify and that the decision was ultimately
    his alone," and he argued that "[i]t follows from the requirements
    of waiver that if a defendant does not know of his constitutional
    right to testify, he cannot validly waive it."     In his opening
    brief to the SJC, Jenkins again asserted that "neither counsel nor
    the court advised him that the decision was ultimately his alone."
    - 7 -
    testify in his own behalf."        
    Id. (citing Thompson
    v. Battaglia,
    
    458 F.3d 614
    , 619 (7th Cir. 2006)).         We agree.
    III.
    "We review de novo a district court's denial of habeas
    relief, including its determination of the appropriate standard of
    review of the state court proceeding."            Zuluaga v. Spencer, 
    585 F.3d 27
    , 29 (1st Cir. 2009).
    A.   Deferential AEDPA Review Applies
    We review Jenkins's claim under the deferential lens of
    AEDPA.   "AEDPA deference is appropriate 'with respect to any claim
    that was adjudicated on the merits in State court proceedings.'"
    
    Id. at 30
    (quoting Goodrich v. Hall, 
    448 F.3d 45
    , 48 (1st Cir.
    2006)); see 28 U.S.C. § 2254(d).          Under this standard of review,
    a writ of habeas corpus will not be granted unless the state
    court's adjudication of the claim on the merits "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),
    or "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," 
    id. § 2254(d)(2).
                "By contrast, if
    the state court does not address the merits of a federal claim, we
    owe no such deference and our review is de novo."               
    Zuluaga, 585 F.3d at 30
    .
    - 8 -
    Jenkins argues that we should review his claim de novo
    because the SJC did not adjudicate his waiver claim on the merits.
    The SJC, he asserts, did not directly discuss his argument that
    "there was no valid waiver of his right to testify since trial
    counsel unilaterally decided not to call him as a witness, thereby
    preventing him from testifying," but rather erroneously discussed
    the issue of whether "his waiver of his right to testify was not
    valid because he did not understand that the decision whether to
    testify was his alone," 
    Jenkins, 941 N.E.2d at 69
    .
    We disagree.   First, the SJC plainly decided Jenkins's
    right to testify claim when it held that the state trial court
    judge, who had presided over Jenkins's trial and had discussed
    with Jenkins directly his right to testify, "did not abuse his
    discretion in concluding that the defendant's waiver was the
    product of a purposeful and informed judgment on his part."    
    Id. at 70.
      Second, even though the SJC did not explicitly discuss one
    subsidiary argument that Jenkins made in support of his claim, the
    Supreme Court has made clear that even "where there is no explicit
    discussion of the articulated federal constitutional issue amidst
    the discussion of issues in the state court opinion, the federal
    court must presume the federal claim was adjudicated on the
    merits."    Hodge v. Mendonsa, 
    739 F.3d 34
    , 41 (1st Cir. 2013)
    (citing Johnson v. Williams, 
    133 S. Ct. 1088
    , 1095–96 (2013)); see
    - 9 -
    also   Harrington   v.   Richter,    
    562 U.S. 86
    ,   99   (2011).    That
    presumption has not been rebutted in this case.
    B.     No Clearly Established Law
    Jenkins argues that the SJC's resolution of his right to
    testify claim was incorrect, even under deferential AEDPA review.
    His argument addresses two themes: the appropriate standard for
    determining whether the right to testify has been knowingly and
    intelligently waived, and who bears the burden of proving whether
    a waiver of that right was or was not knowing and intelligent.
    Under   AEDPA,   we   must     determine      whether   the   SJC's
    resolution of Jenkins's right to testify claim 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).          As a threshold matter, "[i]f
    the federal law is not clearly established by the United States
    Supreme Court, then per force the state court decision cannot be
    either contrary to or an unreasonable application of clearly
    established federal law."     Likely v. Ruane, 
    642 F.3d 99
    , 102 (1st
    Cir. 2011) (citing Wright v. Van Patten, 
    552 U.S. 120
    , 126 (2008)
    (per curiam); Carey v. Musladin, 
    549 U.S. 70
    , 77 (2006)); see also
    Brown v. Ruane, 
    630 F.3d 62
    , 68–69 (1st Cir. 2011).
    In determining whether law, as determined by the Supreme
    Court, is clearly established, "we must look for Supreme Court
    precedent that either 'squarely addresses the issue' in the case
    - 10 -
    or that articulates legal principles that 'clearly extend' to the
    new factual context."     
    Brown, 630 F.3d at 69
    (quoting Van 
    Patten, 552 U.S. at 123
    , 125).         The Supreme Court "has cautioned that
    reviewing courts must be careful not to improperly turn the Court's
    context-specific      holdings   into         'blanket   rule[s].'"     
    Id. (alteration in
    original) (quoting Thaler v. Haynes, 
    559 U.S. 43
    ,
    49 (2010) (per curiam)).       The state of the law is assessed as of
    the date of the relevant state court decision, here February 4,
    2011.    
    Likely, 642 F.3d at 101
    –02.
    First, while it is clear that a waiver of the right to
    testify must be knowing and intelligent, nothing in this record
    even suggests that the SJC unreasonably applied that general
    principle.      Second, the Supreme Court has never articulated the
    standard for assessing whether a criminal defendant has validly
    waived his right to testify or determined who has the burden of
    production and proof under particular circumstances.             Indeed, we
    agree with the analysis used by the Seventh Circuit in denying a
    habeas petition filed by a defendant who claimed his attorney
    prevented him from testifying: "[t]he variety in practice among
    the     state   courts   and   the     various     federal   courts   shows,
    unfortunately for [petitioner], that there is no standard clearly
    established by the Supreme Court of the United States that is
    binding on all." 
    Thompson, 458 F.3d at 619
    . That court recognized
    that "some circuits require a defendant to protest a lawyer's
    - 11 -
    refusal to allow her to testify during trial to preserve the
    right."    
    Id. (citing United
    States v. McMeans, 
    927 F.2d 162
    , 163
    (4th Cir. 1991) (per curiam); United States v. Edwards, 
    897 F.2d 445
    , 446–47 (9th Cir. 1990)).           Further, "several state courts
    require judges to inquire of defendants directly whether they want
    to testify."      
    Id. (citing People
    v. Curtis, 
    681 P.2d 504
    , 514–15
    (Colo. 1984); State v. Neuman, 
    371 S.E.2d 77
    , 81–82 (W. Va. 1988)).
    The Seventh Circuit itself "'steer[s] a middle course,' requiring
    a defendant who wishes to raise this claim to meet a heightened
    pleading standard before the court must hold an evidentiary hearing
    on the question of waiver."       
    Id. (alteration in
    original) (quoting
    Underwood v. Clark, 
    939 F.2d 473
    , 476 (7th Cir. 1991)).               We agree
    with the Seventh Circuit that the law on this point is not clearly
    established by an opinion of the Supreme Court.
    The Supreme Court cases to which Jenkins points are of
    no help to him.      He cites Johnson v. Zerbst, 
    304 U.S. 458
    (1938),
    Carnley v. Cochran, 
    369 U.S. 506
    (1962), and Barker v. Wingo, 
    407 U.S. 514
    (1972), for the general proposition that a court may not
    presume    waiver   of   a   fundamental     constitutional   right    from   a
    defendant's silence or inaction.        But none of these cases address
    the right to testify.        Cf. United States v. Pennycooke, 
    65 F.3d 9
    ,
    11   (3d   Cir.     1995)    (noting   that    "[t]he   right   to    testify
    qualitatively differs from those constitutional rights which can
    be waived only after the court inquires into the validity of the
    - 12 -
    waiver").          Zerbst and Carnley are both right to counsel cases, and
    Barker is a speedy trial right case.               Jenkins's burden of proof
    argument suffers from the same defect.3             Again, there is no clearly
    established law from the Supreme Court on who bears the burden of
    proving that a waiver of the right to testify was invalid. Jenkins
    cites to Michigan v. Jackson, 
    475 U.S. 625
    (1986), overruled by
    Montejo v. Louisiana, 
    556 U.S. 778
    (2009), and Brewer v. Williams,
    
    430 U.S. 387
    (1977).           But both Jackson and Brewer are right to
    counsel cases.
    Jenkins responds that these cases established general
    rules       that    apply   broadly   to   all   fundamental   criminal   rights
    guaranteed by the Constitution, and that the Supreme Court has
    stated that "rules of law may be sufficiently clear for habeas
    purposes even when they are expressed in terms of a generalized
    standard rather than as a bright-line rule."              Williams v. Taylor,
    
    529 U.S. 362
    , 382 (2000) (plurality opinion); see also Panetti v.
    Quarterman, 
    551 U.S. 930
    , 953 (2007).               But Williams and Panetti
    are concerned with constitutional standards applied to different
    sets of facts: rules "which of necessity require[] a case-by-case
    examination of the evidence." 
    Williams, 529 U.S. at 382
    (plurality
    3 Jenkins also failed to raise his burden of proof argument
    to the district court, so it is arguably waived anyway. See Sierra
    Club v. Wagner, 
    555 F.3d 21
    , 26 (1st Cir. 2009) ("Ordinarily,
    arguments not raised in the district court cannot be raised for
    the first time on appeal.").
    - 13 -
    opinion)   (quoting   Wright   v.    West,   
    505 U.S. 277
    ,   308   (1992)
    (Kennedy, J., concurring in the judgment)).         They do not stand for
    the proposition that generalizable standards, which the Court has
    indicated amount to clearly established law in a particular context
    (i.e., the right to counsel), necessarily bind state courts in an
    entirely different context (i.e., the right to testify). In short,
    the general rules Jenkins culls from Supreme Court cases as to
    distinct constitutional rights simply cannot support relief here
    under the strict standards of AEDPA.4
    IV.
    The denial of Jenkins's petition is affirmed.
    4    Jenkins also argues that deferential review of a state
    court's factual findings under 28 U.S.C. § 2254(e)(1) does not
    apply to analysis under 28 U.S.C. § 2254(d)(1). He is wrong. See
    Cronin v. Comm'r of Prob., 
    783 F.3d 47
    , 50 (1st Cir. 2015);
    Scoggins v. Hall, 
    765 F.3d 53
    , 57 (1st Cir. 2014), cert. denied
    sub nom. Scoggins v. Mitchell, 
    135 S. Ct. 1007
    (2015).
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