836 F.3d 97
1st Cir.2016Background
- James Smith was convicted in Massachusetts of first-degree murder and unlawful firearm possession; SJC reversed armed home invasion but affirmed the murder conviction and denial of a new trial.
- The killing: Smith entered Patricia Higgs’ apartment, confronted occupants with a gun, shot Kijona Osmond twice (one fatal shot to the head), took money/drugs, and later confessed to acquaintances.
- Smith claimed trial counsel inadequately advised him about his right to testify (leading to an invalid waiver) and failed to present evidence supporting an armed-home-invasion rebuttal and a self-defense theory.
- State courts (trial judge and SJC) found counsel was experienced, discussed the right to testify on the record, and that Smith’s affidavit claiming confusion was not credible.
- Smith sought federal habeas relief under 28 U.S.C. § 2254, arguing (1) invalid testimonial waiver based on counsel’s advice, (2) ineffective assistance for advising him to waive, and (3) ineffective assistance for failing to marshal evidence supporting self-defense; the district court denied relief.
- On appeal, the First Circuit reviewed the § 2254(d) standards and affirmed denial, holding the SJC’s Strickland application and factual findings were not unreasonable.
Issues
| Issue | Smith's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Validity of testimonial waiver | Counsel told Smith if he waived and was convicted he could challenge waiver on appeal; Smith construed this as a right to a “do over,” so waiver was not knowing | Counsel properly advised Smith, documented the on-the-record exchange, and Smith’s claimed misunderstanding was not credible | SJC and First Circuit: waiver was knowing and voluntary; Smith’s misunderstanding not credible; no unreasonable application of Strickland or §2254(d) |
| Ineffective assistance — advice about testifying | Counsel’s advice was constitutionally deficient and caused an invalid waiver | Counsel discussed the right, expressed a professional opinion, and warned of cross-examination risks; strategic advice non-deficient | No Strickland violation; state courts’ finding that advice was adequate was not unreasonable |
| Burden of proof for invalid waiver | SJC wrongly placed burden on Smith to prove waiver invalid rather than requiring Commonwealth to prove waiver was knowing | There is no clearly established Supreme Court rule allocating burden; Massachusetts procedure placed burden on defendant | First Circuit: absence of controlling Supreme Court precedent means SJC’s burden allocation cannot be contrary to clearly established federal law; claim fails |
| Ineffective assistance — failure to present self-defense evidence | Counsel failed to marshal/exhibit evidence rebutting armed-home-invasion predicate and supporting self-defense; prejudice likely | Trial record undermined Smith’s self-defense story; calling Smith risked impeachment; tactical choices were reasonable | No unreasonable application of Strickland; state courts reasonably found the self-defense theory not credible and strategic choices defensible |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-part test: performance and prejudice)
- Williams v. Taylor, 529 U.S. 362 (AEDPA: “contrary to” and “unreasonable application” standards)
- Harrington v. Richter, 562 U.S. 86 (AEDPA deference; unreasonable application requires more than error)
- Wood v. Allen, 558 U.S. 290 (interaction of §§2254(d)(2) and (e)(1); Court did not resolve fit but applied standards)
- Parke v. Raley, 506 U.S. 20 (defendant’s prior criminal-system experience is relevant to whether waiver was knowing and voluntary)