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Smith v. Dickhaut

United States Court of Appeals, First Circuit

September 7, 2016

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]

          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.

          Before Kayatta and Barron, Circuit Judges, McAuliffe, [*] District Judge.

          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.

         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.

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 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 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 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 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 ...


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