JAMES J. SMITH, Petitioner, Appellant,
THOMAS DICKHAUT, Respondent, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Mark G. Mastroianni, U.S. District Judge]
Stewart T. Graham, Jr., with whom Graham & Graham was on
brief, for appellant.
Healey, with whom Jennifer K. Zalnasky and the Office of the
Massachusetts Attorney General was on brief, for appellee.
Kayatta and Barron, Circuit Judges, McAuliffe, [*] District Judge.
McAULIFFE, District Judge.
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
Standard of Review
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.
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.
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).
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 burden of rebutting
the presumption of correctness by clear and convincing
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).
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 habeas relief because the state court's
findings of fact were not unreasonable in light of the
evidence presented. Id. at 301.
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 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.
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.
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 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 ...