Petitioner, Daniel Yeboah-Sefah, a/k/a Henry K. Boateng, 1 is а state prisoner convicted in Massachusetts of charges stemming from the murder of his five-week old son and the severe beating of his former girlfriend. He was sentenced to life imprisonment. His primary defense at trial was that he was not guilty by reason of insanity.
Petitioner’s present appeal challenges the district court’s denial of his federal petition for habeas corpus relief. Among the issues raised on habeas, petitioner argues that (1) he did not make a “knowing, intelligent and voluntary waiver” of his constitutional right to “conflict-free counsel”; (2) he was deprived of effective assistance of counsel; and (3) he was deprived of due process by the trial court’s failure to hold competency and voluntariness hearings sua sponte. After careful consideration, we affirm the denial of habeas corpus relief by the district court.
I. Background
A. Facts
We take the facts largely as recounted by the Massachusetts Supreme Judicial Court (“SJC”) decision affirming Yeboah-Sefah’s conviction, “supplemented with other record facts consistent with the SJC’s findings.”
Healy v. Spencer,
Yeboah-Sefah and Aleda Moore (“Moore”) met in Worcester, Massachusetts in June of 1991 and began to date. In January 1992, Yeboah-Sefah began attending the University of Massachusetts at Amherst, but soon dropped out. Yeboah-Sefah then discovered that Moore was pregnant with his child. In the fall of 1992, Yeboah-Sefah moved in with Moore and a week later their son, Jameel, was born.
*63 As a condition for Yeboah-Sefаh moving in with her, Moore asked that he either return to school or find a job. Yeboah-Sefah failed to do so and on October 24, 1992, Moore initiated a conversation with him during which she told him that he would have to move out. This discussion took place in Yeboah-Sefah’s bedroom, down the hall from where Moore and the baby slept. The discussion continued into the morning of October 25th.
When Moore got up to leave the room, Yeboah-Sefah sprang up, threw her to the floor, and yelled “I’m going to kill you” as he strangled, hit and kicked her. The attack on Moore lasted about two hours, and included the use of a stick. At some point during the assault, Yeboah-Sefah announced “I’m going to get the baby.” He then retrieved five-week old Jameel from his crib, threw him on the floor, and began to kick and strangle him. When Moore tried to intervene, Yeboah-Sefah kicked her in the face. Yeboah-Sefah eventually took the baby and put him back in his crib. Jameel died from his injuries.
Moore managed to crawl back to her room and lie down on the bed. Yeboah-Sefah entered and held a knife over Jam-eel, and then over Moore. Eventually Moore’s mother, Enid Hall (“Hall”), called, and Yeboah-Sefah answered the phone. Yeboah-Sefah told Hall that Moore was out doing laundry. He then hung up and ripped the telephone cord out of the wall. As Moore had just been to her house the day before to do laundry, Hall’s suspicion were aroused so she аnd Moore’s sister drove to Moore’s apartment to investigate. When no one answered the door, they contacted the police. Moore’s mother and sister also yelled for Moore from outside the apartment. Upon hearing them, Yeb-oah-Sefah became disconsolate and went into the bathroom where he drank from a container of bleach, saying he would not go to jail. He prevented Moore from going downstairs to reach her mother and sister.
The police soon arrived. Moore was taken to a hospital while a detective read Yeboah-Sefah the Miranda warnings and questioned him about what had happened. Based on the testimony of the officer at trial, Yeboah-Sefah responded that he and Moore had gotten into a fight, and that he had beaten her with his fists and knees. When asked about what happened to the baby, he admitted to hitting Jameel’s head on the bedroom wall and kicking him.
Yeboah-Sefah never denied killing Jam-eel or assaulting Moore. His principal defense at trial was an insanity defense; that he lacked criminal responsibility for his actions on account of mental illness. Yeboah-Sefah presented testimony that, since 1988, he had been receiving treatment for a major psychiatric disorder, diagnosed as depression with psychotic features and the possibility of schizophrenia, and that he had been prescribed and been taking various antidepressаnt and anti-psychotic medications. A psychiatrist, Dr. David Rosemarin, was called as a defense witness. Dr. Rosemarin testified that on the day of the crimes Yeboah-Sefah was likely in the grip of psychosis, feeling under the control of a spirit and hearing voices mocking him and telling him to kill himself. Dr. Rosemarin related that Yeb-oah-Sefah had told him that after assaulting Moore, but before attacking Jameel, he had responded to these voices by mixing all of his medications and taking them in one dose. While Dr. Rosemarin could come to no conclusion regarding Yeboah-Sefah’s state of mind during his attack on Moore, he opined that Yeboah-Sefah had suffered a hallucination causing him to believe that Jameel was some sort of evil creature or cat who would kill him if he did not kill it first. It was Dr. Rosemarin’s further opinion that Yeboah-Sefah was not criminally responsible for the killing of the *64 child within the meaning of Massachusetts law. 2
The Commonwealth called its own expert, Dr. Marc Whaley, a psychologist who acknowledged that Yeboah-Sefah suffered from mental illness and that anti-psychotic drugs had helped him function. However, Dr. Whaley opined that Yeboah-Sefah’s actions on the day in question displayed a rationality that belied any claim of actual insanity and, on that basis, concluded that Yeboah-Sefah had sufficient mental capacity to be criminally responsible for his actions on that date of his crimes. Dr. Whaley further concluded that Yeboah-Sefah’s mental illness impaired his сapacity to “premeditate” his actions. The Commonwealth also called a medical examiner, Dr. Stanton Kessler. Dr. Kessler, who had performed the autopsy on Jameel, testified about the decedent’s injuries and concluded that the cause of death was multiple blunt traumatic injuries.
The case was submitted to the jury on two theories of murder in the first degree: premeditation and “extreme atrocity or cruelty.” The jury convicted Yeboah-Se-fah of the murder of Jameel with “extreme atrocity or cruelty,” but not murder with deliberate premeditation. For the attack on Moore, Yeboah-Sefah was convicted of armed assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon and assault and battery. He was sentenced to life imprisonment.
B. Procedural History
Yeboah-Sefah appealed his conviction and subsequently filed a motion for a new trial, premised, among other things, on the ineffective assistance of his trial counsel, Mr. John LaChance (“LaChance”). The appeal was stayed pending the outcome of the motion. The motion judge, who was not the trial judge, conducted an evidentia-ry hearing at which Yeboah-Sefah’s new counsel called three new expert witnesses, including two other psychologists and a medical examiner. Yeboah-Sefah claimed that these witnesses, if they had been called to testify at trial, would have presented a stronger case for insanity, and that trial counsel’s failure to call them was manifestly unreasonable, constituting ineffective assistance. Yeboah-Sefah’s trial counsel also testified and explained his trial tactics and strategy. The motion for a new trial was denied.
See Commonwealth v. Boateng,
No. 92-0656,
Yeboah-Sefah timely appealed the denial of his new trial motion, which the SJC consolidated with the direct appeal of his convictions. On January 21, 2003, the SJC issued a decision affirming both the murder conviction and the denial of the new trial motion.
Commonwealth v. Boateng,
On January 20, 2004, petitioner filed the instant habeas corpus petition with the United States District Court for the District of Massachusetts. The petition was followed by a motion, which was granted, to stay federal proceedings until petitioner had exhausted state avenues of relief. Petitioner then filed a second motion for new trial in the Massachusetts Superior Court. *65 On March 25, 2005, an addendum to the motion was filed, along with motions for an evidentiary hearing and funds to hire a psychiatric expert. Following a non-evi-dentiary hearing before a new judge, the second new trial motion was also denied. Commonwealth v. Boateng, No. WO Cr.1992-00656 (Mass.Super.Ct. Dec. 16, 2005). Petitioner then appealed this denial to the SJC, where on May 5, 2006, pursuant to Mass. Gen. Laws ch. 278, § 33E, a single justice issued a memorandum and order denying the petition for appellate review on the ground that it did not raise a “new or substantial” issue for the Court. Commonwealth v. Boateng, No. SJ-2006-0021 (SJC Memorandum, Cowin, J., May 5, 2006).
Yeboah-Sefah thereupon returned to the federal court whеre the district court denied his habeas claims on September 13, 2007.
Yeboah-Sefah v. Ficco,
No. 04-10125-RWZ,
II. Discussion
A. Applicable Law
1. Standard of Review
“We review the district court’s denial of habeas relief de novo.”
Lynch v. Ficco,
Our review of a federal claim on habeas is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, where a federal claim was “adjudicated on the merits in State court proceedings,” the application for habeas corpus must be denied unless the state court’s adjudication of the claim satisfies either of two conditions: (1) 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,” or (2) it “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).
For purposes of section 2254(d)(1), “clearly established Federal law” refers only to “the holdings, as opposed to the dicta, of [the
Supreme Court’s
] decisions at the time of the relevant state court decision.”
Carey v. Musladin,
An “unreasonable application” of federal law occurs when the state court identifies the correct legal principle, “but (i) applies those principles to the facts of the case in an objectively unreasonable manner; (ii) unreasonably extends clearly established legal principles to a new context where they should not apply; or (iii) unreasonably refuses to extend clearly established legal principles to a new context where they should apply.”
Malone v. Clarke,
A matter is “adjudicated on the merits,” giving rise to deference under § 2254(d) of AEDPA, “if there is a ‘decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.’ ”
Teti v. Bender,
“AEDPA [also] sets out a separate and exacting standard applicable to review of a state court’s factual findings.”
Pike v. Guarino,
2. Procedural Default
The “independent and adequate state ground doctrine” is also relevant to the claims and defenses before us. This doctrine “applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner has failed to meet a state procedure requirement.”
Coleman v. Thompson,
B. Waiver of Right to Conflict-Free Counsel
In his first claim, petitioner asserts that his Sixth Amendment right to counsel was viоlated because he was represented at trial by counsel who had a conflict of interest that petitioner did not knowingly, intelligently and voluntarily waive. The alleged conflict involves trial counsel’s simultaneous representation of a prosecution witness, the medical examiner, Dr. Kessler, in an unrelated civil matter. Although all parties were on notice of the conflict prior to the commencement of trial, and the trial judge conducted an inquiry of the petitioner and obtained petitioner’s consent before permitting the representation to continue, 4 petitioner ar *67 gues that because his consent was not knowing, intelligent and voluntary, as required to establish an effective waiver, the trial court violated his constitutional rights in permitting the representation to go forward. He challenges the validity of his waiver on two grounds, namely: (1) that a combination of circumstances, including his mental illness, the medications he was taking, discovering the conflict only upon the eve of trial, and having not been provided the opportunity to consult with conflict-free counsel in making the decision, rendered his waiver involuntary; and (2) that the trial judge’s colloquy, which failed to produce a narrative response 5 from him, was inadequate as a matter of law to establish voluntariness.
The SJC heard this claim and rejected it on the merits, finding that petitioner’s waiver of the conflict was knowing and intelligent, and that Yeboah-Sefah was not deprived of any cоnstitutional rights as a result of its acceptance:
On learning of the dual representation, the trial judge conducted an inquiry of [petitioner] to determine whether his decision to continue with his trial counsel was intelligently made. The judge asked [petitioner] several questions in regard to the potential conflict, and received assurances that he found to be informed and adequate. While the colloquy ... did not elicit the type of narrative responses for which we expressed preference ... this does not mean it was inadequate. We are satisfied that any deficiency in the colloquy as it appears in the transcript was due less to the diligence of the judge in ensuring that the decision was knowing and voluntary than to the reticence of the defendant. [Petitioner] knowingly and voluntarily assented to the dual representation.
Boateng, 781 N.E.2d at 1217 (citations and footnote omitted).
Petitioner’s claim regarding the validity of his waiver of the right to
*68
conflict-free counsel was heard and adjudicated on the merits by the SJC.
6
Therefore, our review of that decision is subject to the deferential AEDPA standard. 28 U.S.C. § 2254(d). As the question of whether the petitioner made a knowing, intelligent and voluntary waiver of his right to counsel in state court is a “mixed question of law and fact” we review it under § 2254(d)(l)’s “unreasonable application” clause.
See Williams,
Under clearly established federal law as determined by the Supreme Court, petitioner has a Sixth Amendment right to the effective assistance of counsel that includes “a correlative right to representation that is free from conflicts of interest.”
Wood v. Georgia,
The Supreme Court has held that the trial judge bears the “serious and weighty responsibility ... of determining whether there is an intelligent and competent waiver by the accused,” and “must investigate as long and as thoroughly as the circumstances of the case before him demand” before accepting the waiver.
Schneckloth v. Bustamonte,
Applying these general federal guidelines to the factual determinations made by the Massachusetts court, we cannot conclude that the SJC’s decision that petitioner made a knowing and intelligent waiver of his right to conflict-free counsel involved an “unreasonable application” of federal law. Nor did the decision involve an unreasonable determination of the facts in light of the evidence. The SJC found that defense counsel discussed the matter with the petitioner and the medical examiner prior to trial, and all believed that the parallel representation in the civil case did not create a conflict of interest. It also determined that on learning of the dual representation the trial judge conducted an inquiry of the petitioner to ensure that petitioner’s decision to continue with his current trial counsel, despite the dual representation, was intelligently and voluntarily made.
The judge’s colloquy was conducted after petitioner had been found competent to stand trial, and thus presumably
capable
of making an intelligent decision to waive his rights.
See Godinez v. Moran,
Based on these facts, both the motiоn judge who considered petitioner’s new trial motion, as well as the SJC, concluded that petitioner made a knowing and intelligent waiver of the conflict. Given the generalized nature of the Supreme Court’s guidance on the subject, we are unable to conclude that the SJC “unreasonably] applied] clearly established Federal law.”
Carey,
*70 C. Ineffective Assistance of Counsel
The Sixth and Fourteenth Amendments to the United States Constitution afford a defendant the right to the effective assistance of counsel in all state criminal prosecutions which may result in the loss of his liberty.
Strickland v. Washington,
First, petitioner must satisfy the two-prong
Strickland
standard for establishing constitutionally ineffective assistance of counsel&emdash;namely, “(1) deficient performance by counsel (2) resulting in prejudice.”
Malone,
Second, where the petitioner’s claim was adjudicated on the merits by the state court, as most of Yeboah-Sefah’s ineffective assistance claims were, petitioner must also satisfy the AEDPA standard.
7
Since an ineffective assistance of counsel claim is a mixed question of law and fact,
Strickland,
1. Failure to Provide Conflict-Free Representation
Petitioner alleges that he was deprived of the effective assistance of counsel because his trial counsel’s conflict of interest prevented counsel from aggressively challenging the testimony of Dr. Kessler, the Commonwealth’s medical examiner whom counsel concurrently represented. Because his trial counsel labored under an “actual conflict of interest” in representing him, petitioner argues that prejudice is presumed and he is entitled to relief without independent proof of prejudice as required under
Strickland. See Cuyler v. Sullivan,
As a threshold matter, although petitioner has failed to establish that his waiver of trial counsel’s conflict was involuntary or invalid, “under our precedent it would appear that even a knowing acceptance by defendant of counsel’s representation despite a potential conflict of interest does not preclude a showing, under the standard of
Cuyler,
that the conflict became actual and had an adverse effect on representation.”
United States v. Rodríguez-Rodríguez,
The SJC heard this claim and rejected it on the merits, holding that the dual representation did not warrant a reversal of the convictions because trial counsel’s conflict of interest, was “only potential, not actual.”
Boateng,
The SJC reasoned that to the extent that a more aggressive cross-examination of Dr. Kessler or the rebuttal testimony of Dr. Kanfer would have “presented] an alternative ‘single blow1 theory
10
to rebut the conclusions of the medical examiner,” such testimony would not have assisted the petitioner in defending against charges of “extreme atrocity or cruelty.” This is because, as a matter of Massachusetts law, even a single blow, especially when directed against an infant, may support a finding of extreme atrocity or cruelty.
Id.
(citing
Commonwealth v. O’Brien,
We find that § 2254(d)(1) of AEDPA applies to petitioner’s claim that his trial attorney provided ineffective assistance of counsel due to a conflict of interest because the SJC heard and adjudicated this claim on the merits.
11
Analyz
*73
ing that decision through the lens of AED-PA, we are unable to conclude that the SJC “appli[ed] [Supreme Court] precedents to the facts in an objectively unreasonable manner.”
Brown v. Payton,
Here, the SJC determined that trial counsel presenting the “single blow” theory, through questioning of Dr. Kessler or by calling a separate pathologist, would not have helped petitioner’s defense, and thus, petitioner had failed to establish that the dual representation adversely affected the adequacy of representation. In light of the overwhelming evidence of brutality present on the record, it was certainly reasonable to conclude that any testimony elicited from Dr. Kessler or another expert, that in fact the first of petitioner’s numerous blows to the baby was of sufficient force as to be fatal, would not cause a reasonable juror to doubt whether the murder was atrocious or cruel. The SJC, thus, logically held that counsel’s alleged conflict of interest did not rise to the level of an actual conflict of interest.
*74 We cannot conclude that the SJC’s decision constituted an unreasonable application of Federal law.
2. Failure to Elicit Opinion from Government Witness With Respect to Extreme Atrocity or Cruelty
Petitioner further alleges that his trial counsel rendered constitutionally deficient performance by failing to elicit testimony, on cross-examination, from the Commonwealth’s psychologist, Dr. Whaley, regarding petitioner’s capacity to appreciate the atrocity or cruelty of his actions. In an affidavit submitted by Dr. Whaley, after trial, in support of petitioner’s new trial motion, Dr. Whaley states that he believed that petitioner’s “mental illness prevented him from being able to mentally appreciate that he was acting with extreme atrocity or cruelty when he killed his, son.” Although Dr. Whaley testified at trial as to petitioner’s diminished capacity to premeditate — a defense to the other theory of murder of which he was acquitted — Dr. Whaley was not аsked, and thus did not testify to his conclusions regarding the effect of petitioner’s diminished capacity upon his subjective ability to appreciate atrocity and cruelty. Petitioner argues that trial counsel’s failure to elicit that opinion prejudiced petitioner in fact because such testimony would have been a colorable defense to charges of first degree murder based on the theory of extreme atrocity or cruelty, of which he was ultimately convicted.
The government asserts that this claim, which petitioner raised for the first time in an addendum to his second new trial motion, was rejected by the state court based on an adequate and independent state procedural ground, and thus, federal habeas review is barred.
See Walker,
This federal claim was raised by petitioner for the first time in petitioner’s second new trial motion in 2005, which was denied by the trial court. Petitioner appеaled the denial and the claim was ultimately disposed of in a memorandum decision by a single justice of the SJC pursuant to Massachusetts’ “gatekeeper statute,” on the ground that the motion did not raise a “new or substantial” issue for the court.
13
Boateng,
No. SJ-2006-0021, at 4. An issue is not “new” for purposes of the statute if it could have been addressed at trial or on direct review, had the defendant properly raised it there.
See Commonwealth v. Ambers,
This court has previously held, on facts similar to those before us, that a “gatekeeper” justice’s denial of a petition for collateral review on the ground that the federal claim raised therein was not “new and substantial,” pursuant to § 33E, constitutes an independent and adequate state ground for decision.
See Simpson v. Matesanz,
The single justice who considered petitioner’s § 33E petition found that this particular ineffective assistance claim, which was raised for the first time in petitioner’s second new trial motion, was “not new or substantial,” within the meaning of the statute. Noting that “[a]n issue is not ‘new’ under the statute ‘if it could have been addressed at trial or during a previous appeal,’ ”
Boateng,
No. SJ-2006-0021 at 4 (citing
Commonwealth v. Randolph,
Finding procedural default, we are precluded from reaching the merits of the claim unless petitioner can show “cause for the default and actual prejudice as a result of the alleged violation of federal law.”
Lynch,
3. Failure to Call Promised Mental Health Expert
Petitioner further alleges that his trial counsel’s performance was constitutionally deficient in failing to present the testimony of a particular psychologist, Dr. Paul Spi-ers, despite “promising” the jury in his opening that both “[psychologists and psychiatrists” would testify in support of petitioner’s insanity defense. This failure prejudiced him, petitioner argues, because Dr. Paul Spiers, a psychologist who examined him, would have provided petitioner with his only defense to charges arising from the assault upon Aleda Moore. Specifically, unlike Dr. Rosemarin, who testified regarding Yeboah-Sefah’s diminished mental capacity at the time of the attack on Jameel but was unable to form an opinion regarding petitioner’s mental state during the attack on Moore, Dr. Spiers had concluded and could have testified that petitioner lacked criminal responsibility for his actions on October 25, 1992 with respect to his assaults on both Alecia and Jameel. Therefore, Yeboah-Sefah’s trial counsel’s unreasonable failure to call Dr. Spiers, in breach of his promise to the jury, constituted deficient performance that prejudiced the defense.
The SJC heard this claim and rejected it on the merits, holding that trial counsel’s failure to call Dr. Spiers “was not a manifestly unreasonable tactical decision on trial counsel’s part.”
Boateng,
The SJC, however, did not explicitly address petitioner’s claim that it was the failure to call Dr. Spiers
in light of counsel’s “promise” to do so in his opening statement
that rendered his performance ineffective. In other words, despite the pros and cons of calling Dr. Spiers, petitioner argues that counsel’s “failure to follow through” was itself deficient.
See Anderson v. Butler,
“This court ... has invalidated convictions because of broken promises [in an opening statement].”
Sleeper,
Even if counsel’s statement could be construed as an implied promise that the defense would call a psychologist, it still would not amount to the kind of specific, significant and dramatic promise upon whose breach our case law supports invalidating a conviction. “[0]ur cases that premise a habeas writ on an unfulfilled promise during opening argument generally require greater specificity in the promise and greater contemporaneousness between the promise and jury deliberations.”
Phoenix,
We find that counsel was not “professionally unreasonable” and thus, not ineffective in withholding the testimony of Dr. Spiers, despite the statements made in his opening.
See Strickland,
*79 4. Failure to Challenge Admissibility of Pre-Trial Statements to Civilians and Police
Petitioner farther alleges that his counsel provided ineffective assistance in failing to challenge, on voluntariness grounds, the admissibility of Yeboah-Sefah’s pre-trial statements to Moore, Moore’s mother, and to the police in the immediate aftermath of the crime. 20 Petitioner alleges that the statements to Moore and Hall were involuntary, while the statements to police were also inadmissible because petitioner, due to his mental illness, could not provide a knowing and intelligent waiver of his Miranda rights. Petitioner asserts that counsel’s failure to challenge the admission of these statements was prejudicial because the Commonwealth relied on the statements, to show that petitioner could think rationally at the time of the incident, which undermined his insanity defense.
The parties dispute whether this claim was “adjudicated on the merits” so as to give rise to deference under § 2254(d)(1). This is not entirely clear. While the SJC adjudicated petitioner’s related argument regarding the trial court’s failure to conduct a suppression hearing
sua sponte,
21
it did not directly address whether counsel was ineffective in failing to request one. The ineffective assistance claim was however, addressed in a lower state court decision, in which the trial court judge denied petitioner’s first new trial motion.
22
While the SJC did, in a footnote, cite to the trial court on this issue, it did not explicitly adopt the trial
*80
court’s conclusion.
See Boateng,
781 N.E.2d. at 1214 n. 5. As our sister circuit has recognized, “it is not clear whether an adjudication on the merits by a trial court, which is neither explicitly affirmed on the merits nor explicitly rejected by the appellate court, is sufficient to trigger AEDPA review.”
DeBerry v. Portuondo,
As for petitioner’s claim regarding statements to Moore and Hall, we cannot discern any “reasonable probability” “that the outcome of the trial would have been different” had defense counsel objected to their admission given the unlikelihood that such objection would have succeeded. Under Massachusetts law, statements to private parties contemporaneous with a criminal act are not subject to voluntariness analysis.
See Commonwealth v. LaCava,
We are also persuaded that trial counsel’s failure to seek suppression of petitioner’s statements to the police in the aftermath of the incident did not prejudice the petitioner. At the hearing on petitioner’s first new trial motion, trial defense counsel testified in defense of his trial tactics. On the basis of said testimony, the trial court made several factual findings relevant to the instant claim to which, even when reviewing the legal issues
de novo,
we are nevertheless required to defer.
See
28 U.S.C. § 2254(e)(1) (requiring that a state court’s factual finding be “presumed to be correct” unless the petitioner rebuts this presumption by “clear and convincing evidence”);
accord Demosthenes v. Baal,
1. The evidence adduced at the Rule 30 hearings was not persuasive that defendant was incompetent, by reason of his mental condition, voluntarily to utter statements and to waive his Miranda rights.
2. The statements defendant uttered, both with and without Miranda compliance, rationally tended to support his determination, at trial, to pursue the defense that he was not guilty by reason of insanity (“NGI”).
6. TDC determined that the evidence of defendant’s admissions was not harmful to, and, indeed, supported the defense theory of NGI. Accordingly, he did not seek to suppress that evidence or otherwise exclude it from evidence. So too, his determination not to call upon medical professionals to challenge the voluntariness of defendant’s admissions was founded upon his view that, were he *81 to succeed in suppressing or diminishing the effect of the admissions, he would most probably accоmplish only an erosion of his NGI defense. He wanted some of the statements, such as the threats against Alecia, to come into evidence to bolster the NGI defense; he did not want to reveal certain information about defendant’s mental state in advance of trial; and, in any event, he believed that a challenge to voluntariness was, on the facts, unlikely to succeed. In sum, counsel, resolved, as a tactical choice, to support the NGI theory with defendant’s admissions and insanity-evocative conduct.
Boateng,
First, any attempt by counsel to suppress the statements likely would have failed. Even where
Miranda
warnings and procedures are adhered to, if petitioner’s waiver of his Fifth Amendment privilege was not in fact knowing and intelligent, the subsequently made statements would be subject to suppression.
See Dickerson v. United States,
Petitioner here does not claim that the warnings and procedures required by
Miranda
were breached by the police. Moreover the trial court made a factual finding, entitled to a presumption of correctness under § 2254(e)(1), that the evidence showed petitioner to be sufficiently competent to accomplish a voluntary waiver of his
Miranda
rights.
Boateng,
Secondly, although petitioner argues that he was prejudiced by the admission of his statements to police officers, in that the prosecution relied on them to negate his insanity defense, it appears that what was most prejudicial about those statements was not their substance (after all, it was never disputed that petitioner committed the criminal acts), but the calm, rational manner in which he made them. But even if the statements were suppressed, the testimony of police officers as to their observations of petitioner’s calm demeanor after the incident would nevertheless likely be admissible and probative on the question of sanity, thereby undermining any claim of prejudice frоm the admission of the statements themselves.
See United States v. LeRoy,
5. Failure to Request Second Competency Hearing
Finally, petitioner contends that his trial counsel’s failure to request a second competency hearing on the day of trial renders his representation constitutionally defective. He asserts that under Massachusetts law, the court is required to hold an evidentiary hearing on the defendant’s competency to stand trial when there arises a “substantial question of possible doubt” about the defendant’s competence,
see Commonwealth v. Hill,
This claim was heard and adjudicated on the merits by the SJC, and therefore, deference under AEDPA applies.
See
28 U.S.C. § 2254(d). The SJC concluded that counsel’s performance was not deficient, reasoning that petitioner had “presented no evidence whatsoever to contradict trial counsel’s statement to the court on the first day of trial that [petitioner’s] condition had not changed in the intervening week.”
Boateng,
While “clearly established” federal law provides that a significant change in circumstances in the midst of trial may render a second competency hearing proper,
see Drope v. Missouri,
D. Court’s Failure to Conduct Second Competency Hearing
In his final claim petitioner alleges that the trial court violated his constitutional right to due process of law because it failed to conduct a competency hearing
sua sponte
on the first day of trial or anytime thereafter, despite there being doubt regarding his competency. As with the related ineffective assistance claim, the SJC rejected this argument on the merits, reasoning that a trial judge is required to conduct a
sua sponte
inquiry only if a “substantial question of possible doubt” as to competence arises.
Boateng,
It is clearly established by Supreme Court precedent that “the criminal trial of an incompetent defendant violates due process.”
Cooper v. Oklahoma,
Therefore, this claim, and all of petitioner’s claims for relief, must fail.
III. Conclusion
For the foregoing reasons, we affirm the denial of this petition for habeas corpus.
Affirmed.
Notes
. Petitioner was known at the time of his conviction as "Henry K. Boateng.’’ He has since legally changed his name to "Daniel Yeboah-Sefah,” the name under which he filed the instant habeas petition. We will hereinafter refer to petitioner as "Yeboah-Sefah.”
. See
Commonwealth v. McHoul,
. The SJC did vacate Boateng's conviction for armed assault with intent to murder based on an erroneous jury instruction.
Boateng,
. As set forth in the record, the inquiry proceeded as follows:
THE COURT: Yes Mr. Boateng, we are talking about [the medical examiner] Dr. Kessler and the fact that your lawyer represents him in a civil matter. Now he says that he talked to you about that a couple of times.
*67 DEFENDANT: Yes, Your Honor.
THE COURT: And that from the nature of this case, in the way in which this case is going to be tried, that his understanding of your position is the fact that he is representing him in this civil matter, and that represents, in a technical sense, a conflict of interest, that your position is that you have no objection to his representing you and having to question Dr. Kessler in your behalf and the like, all of those questions that surround that subject. Is that so?
DEFENDANT: Yes, Your Honor.
THE COURT: All right. Thank you.
THE COURT: I would just say this to you: — you can stay where you are, Mr. Boa-teng — that you are always a little bit concerned about situations where there is a conflict of interest, because you can't always reach out and deal with situations when you don’t anticipate them, when they happen in the course of a trial. Sometimes, for example, a witness says something which you didn't know about ahead of time, and its necessary for the lawyer to take a rather forceful position with the witness, for example, really cross-examine that witness. So that when you deal with the situation in advance, like we are here, and you say that you are agreeable to this lawyer, under these circumstances acting as your lawyer, you have to accept with that the fact that it's conceivable something could happen while Kessler was testifying that made his position, Kessler, and your position, somewhat antagonistic. Do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: And you are agreeable to that?
DEFENDANT: Yes Your Honor.
THE COURT: Nevertheless, right?
DEFENDANT: Yes, Your Honor.
. In objecting to the absence of a "narrative response,” petitioner seems to suggest that the judge should have elicited an explicit statement from petitioner, in so many words, that he has been advised of his rights, understands his attorney's conflict of interest and voluntarily waives his Sixth Amendment protections.
. The Commonwealth parses the petitioner’s argument and asserts that the first portion of the argument, that a combination of circumstances surrounding petitioner's waiver rendered it involuntary, was procedurally defaulted because it was untimely raised in the course of state proceedings, and therefore, we are precluded from even reaching it on habe-as.
See Walker v. Russo,
. Petitioner argues that his federal ineffective assistance claim was not adjudicated on the merits by the SJC because the SJC did not address the claim under the two-prong
Strickland
standard. However, the SJC reviewed petitioner's ineffective assistance of counsel claim by asking "whether there was an error in the course of the trial (by defense counsel ...) and, if there was, whether that error was likely to have influenced the jury's conclusion.”
Boateng,
. At the evidentiary hearing on the motion for a new trial Yeboah-Sefah called an expert, Dr. Ira Kanfer, who testified that while the child suffered several other injuries, he felt that the cause of death was “one blow” to the head, “which came first.”
. The trial court, in rejecting petitioner’s new trial motion also found “that the potentiality
*72
of conflict never did metamorphose, during trial, into an actual conflict.”
Boateng,
. Petitioner's "single blow” theory is basically that despite administering multiple blows to the baby, the baby may have died from the first blow. Thus, the additional blows did not result in additional suffering during the remainder of the attack, detracting from the atrocity or cruelty of the murder.
. Petitioner argues that the SJC failed to address petitioner's federal constitutional claim on the merits because it applied its own conflict of interest law, established in
Hodge,
. As this court has interpreted the "adverse effect” requirement, the defendant "must show that [the attorney] might plausibly have pursued an alternative defense strategy, and that the alternative strategy was in conflict with, or may not have been pursued because of, [the attorney’s] other loyalties or interests.”
DeCologero,
. Under Massachusetts' “gatekeeper statute", judicial review of the denial of a post-conviction motion in a first degree murder case is prohibited unless permitted at the discretion of a single justice of the SJC “on the ground that it presents a new and substantial question which ought to be determined by the full court.” Mass. Gen. Laws ch. 278, § 33E. Because Yeboah-Sefah was convicted of murder in the first degree, his state appeals from the denial of state collateral attacks on his conviction after his direct appeal were governed by § 33E.
. Alternatively, a lesser error by counsel can also serve as "cause” for procedural default, but "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule,” such as, for example, the "factual or legal basis for a claim [not being] reasonably available to counsel,” or "some interference by officials.”
Murray v. Carrier,
. The SJC found, in contrast to Dr. Rosema-rin, that Dr. Spiers "testified to a different diagnosis of [Yeboali-Sefah's] condition,” namely, that Yeboah-Sefah, in a recent trip abroad, had been exposed to a virus that caused "encephalitis and seizures,” and that he "was suffering from one of these seizures on the day of the attacks.”
Boateng,
. In so holding we consider various factual determinations made by the trial court in petitioner’s first new trial motion, which, under AEDPA, we presume to be correct. 28 U.S.C. § 2254(e)(1);
see also Teti,
. Counsel's statement, in relevant context proceeded as follоws:
You will hear evidence about how that medication affects [Yeboah-Sefah] and how it makes him look in front of you as he sits here today. Psychologists and psychiatrists will talk about the medical affects [sic] of that medication, what they do to a person’s mind and how they make that person appear to others.
[Yeboah-Sefah] was seen by psychiatrists, psychologists after the incident, seen by those retained by [the prosecutor] ... You will hear testimony by experts during the course of this trial as to their assessment of [Yeboah-Sefah’s] level of capacity at the time of the incident on October 25, 1992.
. In
Phoenix
we rejected an ineffective assistance claim on habeas, holding that the failure to grant new trial based on unfulfilled promise in opening that “if anything, tests will show that ... some of the blood that was on the bag ... could not have been the blood of [the victim]” was not unreasonable, as promise was not “dramatic” and omitted testimony was not "strikingly significant.”
See
. Petitioner claims that this case is indistinguishable from our precedents in
Anderson
and
Ouber.
We disagree. In
Ouber,
we found deficient performance under
Strickland
where defense counsel, in his opening statement, "promised, over and over, that the petitioner would testify and exhorted the jurors to draw their ultimate conclusions based on her credibility,” but ultimately advised the defendant against testifying.
. Petitioner challenges the admission of his statement on the phone to Hall that "Moore was out doing laundry” when Hall called asking to speak to Moore. He also challenges his statement that he "wasn’t going to jail,” made in Moore's presence, after hearing the knock at the dоor and proceeding to go into the bathroom and drink bleach. As for the statements to police, petitioner challenges his statements made to officers on the scene, after being read and agreeing to waive his Miranda rights, in which he admits to beating Moore and Jameel.
. Petitioner makes a related claim that he is entitled to habeas relief because, despite counsel's failure to request a hearing on the admissibility of petitioner's statements to Moore, her mother and police, the
tñal court
violated his Due Process and Equal Protection rights by failing to hold a voluntariness hearing
sua sponte.
However, federal law, in contrast to Massachusetts law, imposes no obligation on courts to conduct a voluntariness hearing
sua sponte. Compare Wainwright v. Sykes,
.In rejecting petitioner's new trial motion, the trial court concludes as follows:
The court finds no evidence that TDC’s election not to seek exclusion of defendant's statements was manifestly unreasonable. TDC did not attempt to suppress defendant's statements because he thought such a motion was unlikely to succeed and because he thought that suppressing or diminishing the effect of defendant's admissions would probably serve only to erode his insanity defense. Those decisions were not manifestly unreasonable.
Boateng,
. Petitioner makes a separate ineffective assistance of counsel claim based on trial counsel’s failure to object to the “humane practice” jury instruction. Petitioner argues that the instruction was incomplete because while it instructed the jury to determine whether petitioner’s statements were voluntary before considering them, it failed to inform the jury that the Commonwealth had the burden of proving voluntariness beyond a reasonable doubt.
See Commonwealth v. Grenier,