Atkins v. Clarke

United States Court of Appeals
For the First Circuit
No. 10-1870
LARRY ATKINS,
Petitioner, Appellant,
v.
HAROLD C. CLARKE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
David Shaughnessy for appellant.
Amy L. Karangekis, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.
April 13, 2011
LYNCH, Chief Judge. The Supreme Court's new decision in
Cullen v. Pinholster, No. 09-1088, 2011 WL 1225705 (Apr. 4, 2011),
requires that we reject this appeal from a denial of a request for
an evidentiary hearing in relation to a petition for habeas corpus.
On May 9, 2005, petitioner Larry Atkins was convicted in
Massachusetts state court of unlawful possession of a firearm as
well as unlawful possession of a firearm or ammunition without an
identification card. On a motion for a new trial, Atkins raised an
ineffective assistance of counsel claim, which concerned the
admission into evidence of a 911 call. The motion included a
request for an evidentiary hearing and was accompanied by two
affidavits, one of which contained an admission by trial counsel
that he should have asked for a more limiting instruction.
After considering the affidavits, trial transcript, and
court notes of the proceeding, the state trial judge denied Atkins'
request for an evidentiary hearing as well as his ineffective
assistance claim. Commonwealth v. Atkins, No. 2004-01116, slip op.
at 1 (Mass. Sup. Ct. Jan. 31, 2007). The state trial judge found
that Atkins' lawyer had made a strategic choice as to the admission
of the tapes that was not unreasonable, that the prejudice standard
for ineffective assistance had not been met, and that there was no
substantial risk of a miscarriage of justice. Id. at 5-11.
Atkins' appeals of his conviction and the denial of his
motion for a new trial were consolidated. The state appeals court
-2-
affirmed, directly addressing and rejecting the ineffective
assistance claim and agreeing with the trial court's analysis.
Commonwealth v. Atkins, No. 06-P-220, 2007 WL 4234095, at *1 (Mass.
App. Ct. Dec. 3, 2007). The state court rejected Atkins' argument
that the trial judge abused her discretion in denying him an
evidentiary hearing. Id. Atkins petitioned for further appellate
review, which was denied by the Supreme Judicial Court in January
2008. Commonwealth v. Atkins, 450 Mass. 1107 (2008).
Within a few weeks, Atkins filed a petition for habeas
corpus in federal court under 28 U.S.C. § 2254(d)(1). The petition
was initially dismissed for want of prosecution but it was
reinstated in February 2009. Before the federal district court,
Atkins raised the same ineffective assistance claim and argued
under § 2254(d)(1) that the state court decision was an
unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984). He also sought a federal evidentiary hearing under 28
U.S.C. § 2254(e)(2) so that his trial counsel--and perhaps he--
could testify as to trial strategy.
The federal district court denied the evidentiary hearing
and denied the petition on its merits. Atkins v. Clarke, 730 F.
Supp. 2d 253, 254 (D. Mass. 2010). It concluded that an
evidentiary hearing was unnecessary because the state court record,
which included trial counsel's affidavit on the new trial motion,
contained the material facts relevant to Atkins' ineffective
-3-
assistance claim. Id. at 255. Atkins received a certificate of
appealability only on the issue of whether the federal district
court abused its discretion in denying his request for an
evidentiary hearing. Thus, only that issue is before us.
Shortly before oral argument, Cullen clarified the legal
landscape as to evidentiary hearings under § 2254(e)(2). When
Cullen was decided on April 4, 2011, we advised counsel that day to
address Cullen at oral argument, which was done.
Cullen held that habeas "review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits." Cullen, 2011 WL 1225705, at
*8. The Court reasoned that the "backward-looking language"
present in § 2254(d)(1) "requires an examination of the state-court
decision at the time it was made" and that therefore the record
under review must be "limited to the record in existence at that
same time i.e., the record before the state court." Id.
The Court held that this reading was "compelled" by the
structure of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), which it held conveyed "Congress' intent to channel
prisoners' claims first to the state courts." Id. It held that
"evidence introduced in federal court has no bearing on
§ 2254(d)(1) review. If a claim has been adjudicated on the merits
by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before the state
-4-
court." Id. at *10. The Court noted that this construction did
not render superfluous § 2254(e)(2), which sets limits on the
availability of evidentiary hearings. That subsection may apply
when a constitutional claim was not "adjudicated on the merits,"
within the meaning of § 2254(d)(1). Id. at *10-11.
It is clear both that Atkins' petition for habeas corpus
was brought under § 2254(d)(1) and that his ineffective assistance
claim was adjudicated on the merits by the state court. Until oral
argument, Atkins had conceded in all of his habeas filings that the
claims were in fact adjudicated on the merits in the state courts.
Atkins now argues that the phrase "adjudicated on the
merits" in § 2254(d)(1) must be given a new meaning in light of
Cullen. He argues that a state court has not adjudicated a claim
on the merits unless it has given a full and fair evidentiary
hearing and that therefore federal courts must hear new evidence if
the state court has declined to give a petitioner such a hearing.
Atkins relies on two pre-Cullen decisions: Winston v. Kelly, 592
F.3d 535 (4th Cir. 2010), and Wilson v. Workman, 577 F.3d 1284
(10th Cir. 2009) (en banc).
To the extent these cases are inconsistent with Cullen as
to claims asserted under § 2254(d)(1), and that appears to be the
point of Atkins' citation to them, they are, of course, overruled.
The citation to Wilson is presumably for its statement that "when
the state court makes such findings on an incomplete record, it has
-5-
not made an adjudication on the merits to which we owe any
deference." Wilson, 577 F.3d at 1290. Neither of those cases is
like this one. And there is no doubt that this case was
adjudicated on the merits. A contrary interpretation would
eviscerate Cullen and we reject it.
As the only issue on which a certificate of appealability
was entered concerned Atkins' request for a federal evidentiary
hearing, we affirm.
-6-