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

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
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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
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(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";
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(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)).
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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."
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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.
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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
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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
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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
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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
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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.").
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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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