Lucien v. Spencer

United States Court of Appeals
For the First Circuit
No. 15-2153
JAMES LUCIEN,
Petitioner, Appellant,
v.
LUIS SPENCER,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Susan Church, with whom Demissie & Church was on brief, for
appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Maura Healey, Attorney General of Massachusetts, was on
brief, for appellee.
September 15, 2017
KAYATTA, Circuit Judge. In November 1995, a
Massachusetts jury convicted James Lucien of first-degree murder,
two counts of armed robbery, and one count of unlawful possession
of a firearm. Lucien was sentenced to life in prison, whereupon
he sought direct and collateral review in the Supreme Judicial
Court of Massachusetts (SJC). When the majority of his state
challenges were rebuffed, see Commonwealth v. Lucien (Lucien I),
801 N.E.2d 247, 251 (Mass. 2004), Lucien petitioned the federal
district court for the District of Massachusetts for a writ of
habeas corpus, arguing that the trial court improperly handled the
admission of a plea agreement made by a government witness, that
the district court's jury instructions omitted an element of the
murder offense, and that trial counsel was constitutionally
ineffective. The district court denied Lucien's petition. See
Lucien v. Spencer (Lucien II), No. 07-11338-MLW, 2015 WL 5824726,
at *35 (D. Mass. Sept. 30, 2015). Lucien now appeals. For the
reasons that follow, we affirm.
I. Background
Lucien's conviction followed a five-day trial in which
evidence was introduced to show that Lucien and a man named Jamal
Butler agreed to rob Alfred Clarke and his brother Ryan Edwards,
whom Lucien and Butler knew to be a drug dealer. The Commonwealth
presented evidence that Butler arranged a drug deal through Clarke.
The arrangement eventually led to Lucien riding in the backseat of
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Edwards's two-door sedan while Edwards drove and Clarke sat in the
front passenger seat. Lucien drew a firearm and ordered Clarke to
hand over his money, a pager, and a bracelet he was wearing. He
then ordered Clarke out of the car. After the car pulled away and
turned a corner, Edwards was shot in the lower-right torso. The
bullet, apparently fired from a .25 caliber automatic weapon,
killed him. A .25 caliber shell casing was later found in the
vehicle, but the murder weapon was never found. Butler testified
that when he reconvened with Lucien the following day, the men
split the loot and Lucien admitted he had shot Edwards.
The prosecution's principal theory of the case was that
Lucien committed an armed robbery and killed Edwards in the
process. In support of this theory, the prosecution presented the
testimony of a medical examiner who opined that, given the angle
of the bullet's entry into Edwards's body, the shot could have
been fired from the backseat of his vehicle. Clarke testified
that Lucien claimed to be interested in purchasing cocaine from
Edwards but then drew a gun to commit a robbery once Edwards began
driving. He testified that he handed over his money, pager, and
bracelet as his brother pulled over; he exited as the car began to
drive away; and he saw a flash within the vehicle and heard a
gunshot. Butler, who pled guilty to unarmed robbery, testified
that he and Lucien met before the robbery at Butler's girlfriend's
home to forge a plan to rob Edwards in a staged drug deal; that
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Butler set up the deal because he knew Edwards; that Butler made
first contact and arranged to meet Edwards and Clarke in Edwards's
car in a parking lot; that Lucien and Butler drove to the parking
lot together; that Butler watched Lucien get in the back of
Edwards's and Clarke's car before it drove away; and that when
Lucien came over the next day to split the spoils, he reported he
shot Edwards "to make it look good."
Lucien (through counsel) seized on the fact that Clarke
also admitted that he, too, had a firearm on his person during the
robbery. Lucien's defense theory was that Clarke fired the fatal
bullet after he got out of the car (presumably trying to hit
Lucien). Providing some support for this defense, one officer who
responded to the scene testified to Edwards's dying declaration
that he was shot by someone outside the car (rather than, as Clarke
testified, by Lucien inside the car), and another officer testified
to hearing two gunshots. There were also some inconsistencies in
Clarke's and Butler's testimonies, and each had incentive to lie
at Lucien's expense--Butler to secure a plea deal, and Clarke to
shift blame for a shooting he himself arguably perpetrated. On
the other hand, there was the shell casing found in the car, and
the Commonwealth's ballistician testified that Edwards was likely
shot from close range (although that testimony could not be
confirmed because Edwards's clothes were lost at the hospital and
no soot or powder was found on Edwards's body).
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The jury sided with the Commonwealth, and the state trial
court sentenced Lucien to life in prison on the first-degree murder
charge, a concurrent four-to-five-year term on the illegal firearm
charge, and concurrent eighteen-to-twenty-year terms for the two
armed robbery charges. He timely appealed, arguing, among other
things, that the trial court's jury instructions were flawed
because they did not "instruct the jury that they could not
consider Butler's guilty plea as evidence against the defendant."
Lucien I, 801 N.E.2d at 255. He also took issue with the felony-
murder instructions, arguing that they did not comply with
Massachusetts law because they allowed the jury to convict Lucien
of murder even if Clarke fired the fatal shot. Id. at 256.
In addition to his direct appeal, Lucien filed a motion
for a new trial before the SJC pursuant to Massachusetts General
Laws chapter 278, section 33E. The new-trial motion asserted that
Lucien's trial counsel was ineffective for two reasons. First, he
allegedly gave "faulty advice about the Commonwealth's ability to
impeach [Lucien], if he testified, and that [his] waiver of his
right to testify was thus not knowing and voluntary." Id. Second,
trial counsel did not call two experts, a pathologist and a
ballistician, both of whom were retained before trial. Lucien
claimed those experts would have undermined the Commonwealth's
evidence by opining that Edwards was likely shot from farther away
than the backseat of his vehicle. Lucien also argued that one of
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his armed robbery convictions was duplicative of his felony-murder
conviction, and that the SJC should exercise its discretionary
power to relieve him from the verdict or grant him a new trial.
See Mass. Gen. Laws ch. 278, § 33E. The SJC remitted the motion
to the trial judge, the motion was denied, and Lucien appealed.1
The SJC consolidated Lucien's direct and collateral
appeals and then denied relief on all but Lucien's duplicity
challenge, vacating his conviction for the armed robbery of Edwards
because it was duplicative of the first-degree murder conviction.
(Lucien was convicted on a felony-murder theory, so the armed
robbery was an element of the murder offense.) See Lucien I, 801
N.E.2d at 251, 260. Lucien filed a second motion for a new trial
a few months later in the trial court, reasserting his ineffective
assistance claims concerning his right to testify and trial
counsel's refusal to call the pathologist and the ballistician,
1 The procedural history is actually a bit more complex:
Lucien filed a pro se motion for a new trial in the trial court in
1996. With the assistance of counsel, he submitted an amended
motion to the SJC (the proper body to consider a new-trial motion,
see Mass. Gen. Law ch. 278, § 33E) in 1997. The motion, which
appears to have concerned whether trial counsel was ineffective
for failing to provide Lucien all the information he would need in
order to knowingly waive his right to testify and whether the armed
robbery conviction was duplicative of the felony-murder
conviction, was remitted to the trial judge and denied. Lucien
appealed that decision and moved for reconsideration, adding the
ineffectiveness claims based on his attorney's refusal to call the
ballistician and the pathologist. The motion was again denied.
In any event, respondent makes no contention that Lucien failed to
raise in his original new-trial motion the two ineffective-
assistance claims described here.
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and adding ineffective assistance claims based on trial counsel's
alleged mishandling of a suppression motion and counsel's
"fail[ure] to object to the lack of appropriate instructions to
[the] jury on [the] limited purpose for which [a] co-defendant's
guilty plea could be used." He also asserted that he received
unconstitutionally substandard assistance of appellate counsel in
failing to raise on appeal the ineffective assistance of trial
counsel. The trial court denied the motion, and a single justice
of the SJC denied leave to appeal. See Mass. Gen. Laws ch. 278,
§ 33E.
A petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 timely followed in the District of Massachusetts. The
district court denied Lucien's petition, see Lucien II, 2017 WL
5824726, at *35, and this timely appeal ensued.
II. Discussion
We review a district court's denial of a petition for
habeas corpus de novo. See Moore v. Dickhaut, 842 F.3d 97, 99
(1st Cir. 2016) (citing Teti v. Bender, 507 F.3d 50, 56 (1st Cir.
2007)). Like the district court, however, we are required to
afford significant deference to the state court's decision under
most circumstances. See Scoggins v. Hall, 765 F.3d 53, 57 (1st
Cir. 2014). Unless a state court "does not address the merits of
a federal claim," see Jenkins v. Bergeron, 824 F.3d 148, 152 (1st
Cir. 2016) (quoting Zuluaga v. Spencer, 585 F.3d 27, 30 (1st Cir.
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2009)), the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) permits us to grant a habeas petition in only two
circumstances: (1) if the SJC's decision "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 (2) the decision on the federal
claim was "based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,"
id. § 2254(d)(2). The petitioner must also show that the state
court's error had a "substantial and injurious effect" on the
jury's verdict. See Fry v. Pliler, 551 U.S. 112, 121–22 (2007)
(citing Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).
Lucien advances four claims on appeal. We assess each
of these challenges in turn.
A. Butler's guilty plea
Lucien's first argument concerns the entry of Butler's
plea agreement into evidence, and the judge's instructions about
the role it could play in the jury's verdict. As Butler's direct
examination was drawing to a close, the trial court allowed the
Commonwealth to read Butler's plea agreement into evidence, and to
elicit Butler's comment on it. Lucien's counsel objected, saying,
"there is case law that creates certain obligations with respect
to agreements of this type. I think, you know, just to protect
the record, I'm going to object to the agreement, all right?"
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Citing Commonwealth v. Ciampa, 547 N.E.2d 314 (Mass. 1989), counsel
requested that the court instruct the jury not to inappropriately
rely upon Butler's plea agreement.
In response, the trial judge admonished the jury--twice,
and in no uncertain terms--that the government had "no way of
knowing whether or not a witness is telling the truth," and that
the plea agreement's indication that Butler was obligated to
honestly testify did not so signify.2 Lucien's counsel did not
2 At the time the plea agreement was entered into evidence,
the trial judge told the jury:
Ladies and gentlemen, the Exhibit that
has been marked number 8, evidently is set up
by the evidence as some sort of agreement
between the attorney on behalf of Mr. Jamal
Butler and the Commonwealth of Massachusetts,
through the [prosecutor] who's trying this
case. In here it indicates that the
obligation of Mr. Butler is to tell the truth
completely to all the questions before a Grand
Jury and any trial. I just want to say this,
folks, that the Commonwealth has no way of
knowing whether or not a witness is telling
the truth or not. And they cannot vouch for
that truth. That is totally and completely up
to our Jury, which Jury that's your function.
Only you can determine, the Commonwealth
cannot vouch for it. It's totally and
completely up for your determination and
judgment based on all the evidence and what
you've heard here, folks.
. . . .
. . . Just keep in mind that it's not the
Commonwealth's duty to determine who's telling
the truth, namely the District Attorney, but
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renew his objection or otherwise indicate to the trial judge that
this instruction failed to address his concern.
In closing argument, the prosecutor suggested to the
jury that Butler should be believed because "he pled guilty and he
agreed to cooperate," saying, "[I]f you think that Jamal Butler
took the stand and he wasn't involved in any robbery with this man
and he's just decided to spend five years, the next five years, of
his life in jail for this, I suggest that's the best motive for
him to be truthful." Lucien did not object. After closing
arguments, the trial judge instructed the jury, "The fact that
[Butler] testified pursuant to [a plea] agreement[] should cause
you to examine his testimony with extra care and caution. The
fact that the Commonwealth has entered into an agreement with the
witness does nothing to change the fact of the determination of
the witness's truthfulness." The judge also instructed the jury
that "the requirement in the agreement that the witness testif[y]
truthfully [does not] mean that the government has a way of knowing
that the witness is telling the truth."3 Again, Lucien's counsel
totally and completely you, the Jury here in
Suffolk County, folks.
3 The judge's instruction, in full, was as follows:
There has been evidence in this case that one
of the Commonwealth's witnesses entered into
what is known as an agreement with the
Commonwealth. The agreement has been entered
into evidence as an exhibit. The fact that
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did not object or indicate that this instruction was not the one
he was looking for.
On appeal to the SJC, Lucien argued that the jury
instructions were improper because the trial judge did not
"instruct the jury that they could not consider Butler's guilty
plea as evidence against the defendant." Lucien I, 801 N.E.2d at
255. As a result, claimed Lucien, the trial court violated
Lucien's "fundamental rights" because it allowed the jury to decide
against him based on hearsay evidence not "presented in open
court."
The procedural status of this claim that the jury
instruction failed to deal properly with Butler's plea agreement
this witness testified pursuant to such an
agreement[] should cause you to examine his
testimony with extra care and caution. The
fact that the Commonwealth has entered into an
agreement with the witness does nothing to
change the fact of the determination of the
witness's truthfulness. It's solely a
question for you the jury. Nor does the
requirement in the agreement that the witness
testified truthfully mean that the government
has a way of knowing that the witness is
telling the truth.
You should consider the motivation of the
witness in testifying and what rewards or
inducements or benefits are flowing to that
witness as a consequence of that witness's
testimony and if any [of] those promises in
any way affect the credibility of this
particular witness.
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is quite complicated. The SJC found that Lucien's trial counsel
never objected to the instructions on the grounds now being
asserted. See id. Normally such a finding would constitute
independent and adequate state-law grounds for the judgment that
would effectively preclude our direct review of the forfeited
argument, absent certain special circumstances. See Barbosa v.
Mitchell, 812 F.3d 62, 67 (1st Cir. 2016) (explaining that
procedural default is an independent and adequate state-law ground
for a decision, and may only be forgiven if petitioner shows cause
for and prejudice from the default). Here, though, in deciding
not to consider Lucien's argument on the merits, the SJC relied on
an assertion that "there was no evidence that Butler had pleaded
guilty." Lucien I, 801 N.E.2d at 255. This was plainly wrong.
Not only was there evidence that Butler pleaded guilty, the plea
agreement itself was read into evidence and was the subject of
inquiry and comment. Adding yet another twist is the indirect
manner in which Lucien now seeks to get at this whole issue. He
alleges that his trial counsel was ineffective in failing to raise
an apt objection to the instructions, and that his appellate
counsel was ineffective in failing to pursue an argument that trial
counsel was ineffective.
The parties' briefs each debate in a discursive manner
the ramifications of these complexities. Lucien seems to want us
to rely on the SJC's factual error as a basis for conducting de
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novo review of everything, even the state-law issue of whether
trial counsel raised an apt objection. The Commonwealth, in turn,
seems to argue that we need not address Lucien's argument because
he procedurally defaulted his claim--i.e., his claim was
adjudicated on independent and adequate state-law grounds--and the
default is inexcusable because Lucien's counsel was not
ineffective and "there was no error in the jury instruction." Of
course this last point--the claim that the jury instructions were
fine--invites us to conduct de novo review of the unobjected-to
jury instruction, and thereby adjudicate a question of state law.
Rather than unravelling this skein, we give Lucien
several assumed benefits of the doubt and focus on whether the
instruction, even if a trial error, "had substantial and injurious
effect or influence in determining the jury's verdict." Brecht,
507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)); see Connolly v. Roden, 752 F.3d 505, 511 (1st Cir.
2014). If it did not, then habeas relief is foreclosed. See Davis
v. Ayala, 135 S. Ct. 2187, 2199 (2015).
This was a case in which Butler testified in person. He
described what Lucien did, and he admitted that he participated in
planning the robbery of Edwards and Clarke. To the extent that
the making of a deal implied Butler was getting something for his
testimony, that implication cut in Lucien's favor. In this
context, the agreement might plausibly have cut against Lucien
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only if the jury were permitted to infer from it that the
prosecutors knew Butler to be telling the truth or were otherwise
vouching for him. See United States v. Wihbey, 75 F.3d 761, 772
(1st Cir. 1996). This potential prejudice, though, was well
covered by the instructions as given.
Lucien points to no other possible prejudice beyond
baldly asserting that the plea agreement "shift[ed] the burden of
proof." How that is so, Lucien does not explain. The only cases
to which Lucien points involve the very different situation in
which the prosecution puts into evidence the guilty pleas of non-
testifying co-conspirators. See, e.g., United States v. Ofray-
Campos, 534 F.3d 1, 23 (1st Cir. 2008) ("[W]here a missing co-
defendant does not testify, 'it is generally accepted that absent
agreement, courts and prosecutors generally are forbidden from
mentioning that a co-defendant has either pled guilty or been
convicted.'" (quoting United States v. Carraway, 108 F.3d 745, 756
(7th Cir. 1997))); United States v. Blevins, 960 F.2d 1252, 1260
(4th Cir. 1992) ("Courts have generally agreed that evidence of a
non-testifying co-defendant's guilty plea should not be put before
the jury."). Such agreements by non-testifying co-conspirators
have little apparent relevance, other than suggesting guilt by
association, without any opportunity for cross-examination. Here,
Butler's relevant testimony concerned precisely his relevant
association with Lucien, and Butler was subject to cross-
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examination, which itself could point to the agreement as a motive
to lie. Moreover, this was not a case in which A and B are accused
of doing X together, where X is the pivotal act upon which
conviction hinges, and B then pleads guilty to X, creating a
potential for the prosecution to suggest that B's plea must mean
A did it too. See, e.g., United States v. Dworken, 855 F.2d 12,
30–32 (1st Cir. 1988). Here, the pivotal issue was whether Lucien
shot Edwards, and Butler did not plead guilty to conspiring with
Lucien to do that. Nor, finally, did the prosecutor suggest to
the jury that it should view the plea agreement itself as evidence
that Lucien shot Edwards.
Having been pointed to no other possible prejudice, we
therefore comfortably find that even were it somehow proper to
review the jury instructions de novo and find them to be in error,
the error would not have caused the type of prejudice that would
warrant habeas relief.
B. Felony-murder instruction
Lucien's next claim is that his due process rights were
violated when the trial court gave an erroneous instruction on the
elements of felony murder under Massachusetts law. The challenged
instructions read as follows:
The statue [sic] defining murder allows you to
find the defendant guilty of first degree
murder if you find the Commonwealth has proven
beyond a reasonable doubt that the defendant
unlawfully killed the victim in the commission
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of or attempted commission of a crime,
punishable by principle of law. This
principle of law is known as the felony murder
rule.
The effect of the felony murder rule is
to substitute the intent to commit the
underlying felony for the malice aforethought
as defined earlier required for murder. In
order to find the defendant guilty of first
degree murder under the felony murder rule,
the Commonwealth must prove the following
three elements beyond a reasonable doubt.
One, that there was an unlawful killing, two,
that the killing was committed while the
defendant was in the course of committing or
attempting to commit a felony punishable by
imprisonment for life, and three, that under
the circumstances of this case, the defendant
committed or attempted to commit the felony
with the conscious disregard for human life.
Lucien contends, as he did before the SJC, that felony
murder under Massachusetts law requires the Commonwealth to prove
beyond a reasonable doubt that the defendant or a joint venturer
proximately caused the death of the deceased victim, see, e.g.,
Commonwealth v. Tejeda, 41 N.E.3d 721, 724–25 (Mass. 2015), and
that the instructions given in this case permitted the jury to
convict even if they found that Clarke (or someone else other than
a joint venturer) committed the killing. In so arguing, Lucien
concedes that one line of the instructions given did, in the words
of his appellate brief, "require[] the jury to find the defendant
to have killed the victim." He argues, however, that other
portions of the instructions--namely, instructions passively
stating that the jury needed to find "that there was an unlawful
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killing"--undermined that instruction and rendered it
unconstitutional under In re Winship. 397 U.S. 358, 360–61 (1970).
The SJC construed the instructions otherwise, concluding
that the trial court "instructed the jury that the Commonwealth
must prove that [Lucien] actually killed Edwards." Lucien I, 801
N.E.2d at 257. As so construed, this instruction was actually
better than Lucien deserved under Massachusetts felony murder law.
See id. (noting that "[t]he defendant received an instruction more
favorable than he was entitled to receive"). It is true that the
instructions did not reiterate this requirement in subsequently
discussing the meaning of "unlawful killing." That subsequent
discussion, however, can most easily be read as merely specifying
the other elements of the offense, all of which were predicated on
the instructions' initial requirement that the jury find the
defendant to have killed the victim. Out of context, the fact
that the requirement was not repeated in the subsequent
instructions might have led jurors to conclude that they need not
find that Lucien shot Edwards. In context, though, there was
little such risk. The Commonwealth never argued that Lucien was
still guilty if Clarke fired the shot. Rather, the prosecution
trained its evidence and argument on the contention that Lucien--
not Clarke--fired the fatal shot.
Of course, in this habeas proceeding we do not sit as
the final arbiter of Massachusetts law. "[T]he fact that [an]
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instruction was allegedly incorrect under state law is not a basis
for habeas relief. . . . The only question for us is 'whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.'" Estelle v. McGuire,
502 U.S. 62, 71–72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)). An instruction will be found to corrupt a conviction
where, "in the context of the instructions as a whole and the trial
record," the instruction violates "fundamental fairness" by
creating a "'reasonable likelihood that the jury has applied the
challenged instruction in a way' that violates the Constitution."
Id. at 72–73 (quoting Dowling v. United States, 493 U.S. 342, 352
(1990), and Boyde v. California, 494 U.S. 370, 380 (1990)). For
the reasons stated above, it was not an "unreasonable application"
of due process law for the SJC to find no such likelihood here.
Accordingly, we reject Lucien's challenge to the constitutionality
of the felony-murder instruction.
C. Waiver of right to testify
Toward the end of Lucien's trial, his counsel and the
prosecutor went to sidebar with the judge. They discussed a number
of matters, including the prosecutor's intention, which he had
already communicated to Lucien's attorney, not to introduce
Lucien's past convictions as a means of impeaching him should he
choose to testify. After the sidebar conversation concluded,
Lucien's attorney returned to the defense table and visibly
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conferred with his client. When Lucien and his counsel came back
to sidebar, the judge informed him of his right to testify. Lucien
replied, "I wish not to testify." According to an affidavit
submitted by trial counsel and included in the state court record
on appeal, counsel had previously encouraged Lucien not to testify.
The affidavit is silent as to whether or not, during their
conversation immediately preceding Lucien's visit to sidebar,
counsel informed Lucien that the prosecution would not seek to
introduce his convictions if he testified.
Lucien presented two arguments to the SJC on this matter.
First, he argued that when he waived his right to testify, he did
so without knowledge of the Commonwealth's concession that it would
not impeach him with his past convictions if he testified, and he
therefore waived his right to testify unknowingly and
involuntarily. Lucien I, 801 N.E.2d at 258–59. Second, he argued
that counsel rendered ineffective assistance by neglecting to
advise him of all the facts necessary to make a knowing waiver.
Id. As evidence supporting both arguments, Lucien pointed to his
trial attorney's efforts to dissuade him from testifying, his trial
attorney's affidavit stating that counsel consistently advised him
not to testify, and Lucien's own affidavit attesting to never
knowing the prosecution had represented it would not bring up his
past crimes. He complained that he could not have made an informed
decision about waiving his right to testify without knowing that
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the jury would not learn of his prior criminal conduct, which he
believed would come out if he took the stand.
The SJC rejected both of Lucien's arguments, finding
that Lucien was, in fact, aware of the prosecution's intentions.
It explained that under Massachusetts law, Lucien was required to
demonstrate "by a preponderance of the evidence, that, but for his
counsel's erroneous advice," Lucien "would have testified in his
own defense," id. at 258 (quoting Commonwealth v. Freeman, 564
N.E.2d 11, 15 (Mass. App. Ct. 1990)), and "[i]t is not enough to
say that counsel had discouraged him from testifying," id. at 259
(citing Commonwealth v. Cook, 784 N.E.2d 608, 616 (Mass. 2003)).
Lucien failed to make that showing, said the SJC, because the only
evidence he presented was his own sworn statements that he was not
properly advised, and that evidence paled in comparison to the
trial judge's observation that, after sidebar, defense counsel
spoke at length with Lucien at counsel's table immediately before
Lucien approached and verbally waived his right to testify. Id.The SJC found that "[t]he judge was entitled to reject summarily
any claim supported only by the defendant's self-serving
affidavits, and infer from his own observation of the defendant
and counsel at trial that they were conferring over precisely the
matter the defendant now claims was never discussed." Id. Because
the SJC addressed Lucien's constitutional arguments on the merits,
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we afford the SJC's decision AEDPA deference. See Jenkins, 824
F.3d at 152.
Lucien contends that clear and convincing evidence shows
that the state court made its decision based on an unreasonable
determination of the facts, and that we should therefore grant
relief under 28 U.S.C. § 2254(d)(2).4 He repeats to us the
arguments he made to the SJC and the district court: his attorney
sent numerous letters urging him not to testify; his attorney's
affidavit demonstrates that counsel strongly advised him not to
testify; those urgings were clearly motivated by the judge's
decision not to prohibit the prosecution from introducing his
convictions; and if he had known that those convictions were not
going to be presented to the jury, he would have made a different
choice.
4 As this court has noted on more than one occasion, the
courts of appeal have come to different conclusions concerning
whether and to what extent the requirement in § 2254(e)(1) that a
state court's factual findings are presumed correct unless
rebutted by "clear and convincing evidence" differs from
Congress's directive in § 2254(d)(2) that we may overturn a state
court's decision on factual grounds only if its findings were
"unreasonable." See Smith v. Dickhaut, 836 F.3d 97, 101 (1st Cir.
2016) (citing John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009), and
Teti, 507 F.3d at 58–59). As in past cases, we need not confront
this issue in the present case: Lucien himself argues that he
"must prove by clear and convincing evidence that the state court's
factual findings were incorrect with respect to this issue." In
any event, as in Smith, "even if we were to assess the state
court's factual determinations under the [arguably] more
petitioner-friendly standard set out in § 2254(d)(2), rather than
the more deferential standard in [§ 2254(e)(1)], [Lucien] would
still not be entitled to the relief he seeks." Id.
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Certainly, the evidence presented could be construed to
support Lucien's account of what happened. The evidence in the
record clearly shows that Lucien's trial counsel strongly
encouraged him not to testify, and that Lucien persistently voiced
his interest in doing so anyway. It also shows that one reason
counsel initially discouraged Lucien from testifying was that
counsel feared Lucien's past crimes would be presented to the jury
as a means of impeaching Lucien if he took the stand, and that
this particular concern was ameliorated when the prosecution
decided it would not do so. But, as the SJC reasonably observed,
Lucien and his attorney actively and repeatedly discussed, on
numerous occasions, the possible benefits and detriments of
testifying, and counsel advised Lucien that doing so was risky.
Furthermore, like Conan Doyle's dog that did not bark, trial
counsel's affidavit is conspicuous in its failure to support
Lucien's claim that counsel did not tell Lucien of the government's
concession at sidebar, despite counsel's willingness to admit
fault in other areas of his representation of Lucien. And Lucien
does not dispute the trial court's observation that immediately
after the government informed the court of its concession, and
immediately before Lucien waived his right to testify, Lucien and
his trial counsel had a lengthy discussion at counsel's table.
As was the case in Companonio v. O'Brien, "we cannot
decide in the petitioner's favor unless we supplant the SJC's
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reasoning by adopting his view of arguably conflicting evidence.
But '[w]here the record evidence can be interpreted to support a
different version, the case here, we must reject such a request.'"
672 F.3d 101, 111 (1st Cir. 2012) (quoting John v. Russo, 561 F.3d
88, 95 (1st Cir. 2009)). For the foregoing reasons, this is just
such a case, and Lucien's challenge on this issue fails.
D. Counsel's decision not to call experts
Lucien's trial counsel retained two expert witnesses to
testify on Lucien's behalf at trial. According to an affidavit
included in the state court record, ballistician Carl Majeskey was
prepared to opine on the likely location of Edwards's shooter.
According to another affidavit included in the state court record,
pathologist Edward Sussman was prepared to opine on how far away
Edwards's shooter was when the shot was fired, based on the wound
Edwards sustained. Neither witness was in fact called to testify.
On state collateral review, Lucien tendered an affidavit from trial
counsel stating that counsel decided not to call Sussman and
Majeskey "not based alone on James Lucien's best interest," but
also that there was "a political component in [his] decision to
not call them." He explained that "[t]hese experts were upset due
to the fact that the trial was to begin on the day after
Thanksgiving and they had planned vacations during that time. Part
of the reason for not asking these witnesses to testify was not
wanting to anger them." Lucien argued to the SJC that this
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amounted to ineffective assistance of trial counsel, because
counsel did not have Lucien's best interest in mind, and the jury
would likely have acquitted had they heard from Majeskey and
Sussman.
In Lucien I, the SJC rejected Lucien's claim, finding
that Lucien did not receive ineffective assistance under
Commonwealth v. Wright, 584 N.E.2d 621 (Mass. 1992), and
Commonwealth v. Adams, 375 N.E.2d 681 (Mass. 1978). See Lucien I,
801 N.E.2d at 257–58. It found that even though other tactical
reasons were not given, counsel's affidavit implied that he had
some, and that they were based on Lucien's best interest. Id. at
258. Additionally, tactical reasons not to call the witnesses
were readily discernable. Id. The SJC noted that the subjects on
which Majeskey claimed he could opine were "beyond his field of
expertise," particularly concerning "the feasibility of firing a
gun from different locations inside and outside the car, matters
for which the jury needed no expert to assist them," so it would
make strategic sense not to call him to testify. Id. It also
found that Sussman's affidavit suggested he would have given
testimony that would not have lent meaningful support to Lucien's
defense and could have bolstered or at least been consistent with
the Commonwealth's pathologist's testimony, making the decision
not to call him similarly sound strategy. Id.
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Lucien reasserts his ineffective-assistance claim in his
petition for a writ of habeas corpus, arguing that the SJC
unreasonably applied the law and made unreasonable findings of
fact in light of the record evidence when it determined that
counsel was not ineffective. Under federal law, Lucien can show
ineffective assistance only if he satisfies the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984), by
showing "that counsel's performance fell below an objective
threshold of reasonable care and that counsel's deficient
performance prejudiced him." Smith v. Dickhaut, 836 F.3d 97, 103
(1st Cir. 2016) (citing Strickland, 466 U.S. at 687, and Turner v.
United States, 699 F.3d 578, 584 (1st Cir. 2012)). In measuring
the quality of counsel's performance, "the reasonableness of
counsel's tactical or strategic choices" is evaluated with "a heavy
measure of deference to counsel's judgments." Castillo v.
Matesanz, 348 F.3d 1, 14 (1st Cir. 2003) (quoting Strickland, 466
U.S. at 691). Because the standard employed by the SJC in
assessing Lucien's ineffective-assistance claim on this issue "is
'at least as protective of the defendant's rights as its federal
counterpart,' we may defer under section 2254(d)(1) to its
determination." Kirwan v. Spencer, 631 F.3d 582, 590 n.3 (1st
Cir. 2011) (quoting Foxworth v. St. Amand, 570 F.3d 414, 426 (1st
Cir. 2009), and citing Wright, 584 N.E.2d at 624); see Castillo,
348 F.3d at 13 (citing Adams, 375 N.E.2d at 685). In short, Lucien
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has the heavy burden of not just arguing that there was a
Strickland violation, but that no reasonable jurist could conclude
otherwise, at least without relying on an unreasonable view of the
facts.
Lucien argues that the SJC made four unreasonable
findings of fact. First, he contends that the evidence does not
support the SJC's finding that trial counsel acted to advance more
than just personal political motivations, arguing that the SJC's
decision used "vague" language and "never specified what [the SJC]
believed [] those 'other' motivations might be." But the SJC's
finding is crystal clear: It found that trial counsel likely felt
there were strategic reasons not to call Sussman and Majeskey.
See Lucien I, 801 N.E.2d at 258 ("Although counsel did not disclose
any other tactical reason [not to call the experts], his affidavit
makes clear that he had other reasons."). This was a reasonable
way to interpret trial counsel's affidavit, which, by stating that
the decision not to call the experts "was not based alone on James
Lucien's best interest" (emphasis added), implied that the
decision was at least based in part on Lucien's best interest.
Second, Lucien contends that there could have been no
strategic reason not to call Sussman because Sussman was prepared
to testify that Edwards's wound was a "distant gunshot wound,"
and, according to Lucien, distant "could not possibly be
interpreted to mean from the back seat of the car." But Sussman's
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affidavit only asserts that the gunshot wound was "distant" based
on the fact that the autopsy report, pathology report, aerology
report, and ballistics report "indicated that there was no
associated stippling or powder soot in the wound of the deceased,"
not based on some assessment of the approximate distance from which
the fatal shot must have been fired. Nothing in the record
indicates that Sussman was prepared to testify that "distant" meant
anything other than "far enough away that there would be no soot
or stippling in the wound"--testimony that would have been
consistent with testimony given by the Commonwealth's pathologist
that it would be possible for there to be no soot or stippling in
a wound if a victim's clothes caught the soot and stippling, even
if the fatal shot was fired from very close range. Putting on a
defense witness who could only place the origin of the shot outside
the victim's clothes so as to leave no soot or stippling might
well have led the jury to draw a negative inference from such a
meager offering from a defendant-retained expert. Counsel could
have reasonably thought it better to rely on simply cross-examining
the government witnesses.
Third, Lucien argues that Majeskey was just as well
credentialed as the Commonwealth's ballistician, so the SJC made
an unreasonable determination that he was going to testify to
matters beyond his ken. Lucien's argument, however, is misplaced:
The SJC found not that Majeskey was less qualified to testify than
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was the Commonwealth's expert witness, but rather that Majeskey's
training as a ballistician did not qualify him to give expert
testimony on matters for which the jury required no expert opinion,
like whether it was "practical" to fire a weapon from an awkward
angle inside a vehicle. Id. That finding was clearly not
unreasonable.
Finally, Lucien contends that the SJC unreasonably found
that one tactical reason trial counsel likely had for not calling
Majeskey and Sussman was that doing so would be risky, as they
would have offered testimony that would have been consistent with
and cumulative of the testimony of the Commonwealth's pathologist.
Lucien notes that in addition to Sussman being prepared to testify
that Edwards suffered a "distant gunshot wound," Majeskey was
prepared to testify that it was likely that the gun was "fired by
someone reaching across the front passenger seat or up to a foot
or two from the car with the passenger door open, or . . . up to
a foot or two from the opened window of the closed passenger door."
But Majeskey also affirmatively stated in his affidavit that the
Commonwealth's theory that the fatal shot was fired from within
the car was "possible." The SJC was not unreasonable in
determining that counsel may reasonably have concluded that this
testimony would leave counsel with less room to attack the
Commonwealth's experts.
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We are thus left to determine whether the SJC's
application of federal law to these facts was unreasonable under
28 U.S.C. § 2254(d)(1). It is not contrary to, nor an unreasonable
application of, Supreme Court precedent to reject an ineffective
assistance claim where an attorney made a choice, at least partly
motivated by strategy, not to call witnesses who would not have
positively contributed to (and, indeed, might possibly have
negatively impacted) the defendant's case. See Hensley v. Roden,
755 F.3d 724, 737 (1st Cir. 2014); Phoenix v. Matesanz, 233 F.3d
77, 81–85 (1st Cir. 2000). Even if we were to regard such a choice
as negligent, that would not be nearly enough: Our review of
ineffective assistance claims like this one is "doubly
deferential," requiring Lucien to show that counsel's performance
was objectively unreasonable and that no reasonable jurist could
come to the contrary conclusion the state court drew. See Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009). This claim therefore
fails.
III. Conclusion
For the foregoing reasons, we affirm.
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