United States Court of Appeals
For the First Circuit
No. 13-1193
YODERNY PENA,
Petitioner, Appellant,
v.
THOMAS DICKHAUT,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Selya, and Stahl,
Circuit Judges.
David Rossman for appellant.
Amy L. Karangekis, Assistant Attorney General, with whom
Martha Coakley, Attorney General of Massachusetts, was on brief,
for appellee.
November 22, 2013
STAHL, Circuit Judge. Petitioner Yoderny Pena was
convicted of first-degree murder in Massachusetts state court.
After the state court upheld his conviction on appeal, Pena filed
a petition for a writ of habeas corpus in federal district court,
based on alleged violations of his Fifth and Sixth Amendment
rights. The district court denied the petition. For the following
reasons, we affirm the district court's decision.
I. Facts & Background
On March 8, 2004, Pena killed his girlfriend by stabbing
her fifty-one times. Five months later, he turned himself in to the
police. At trial, Pena acknowledged that he had killed the victim.
The defense contended, however, that Pena was mentally impaired at
the time of the murder and therefore incapable of forming the
mental state required to commit first-degree murder.
The defense's only witness was Dr. Rebecca Brendel, a
psychiatrist, who testified to Pena's mental illness based on her
review of Pena's medical records and interviews she had with Pena
and his sister. Relying on her record review and observations, she
"concluded that 'Pena suffered from a chronic and severe mental
illness on the day of the killing'" and "expressed 'serious doubt'
whether Pena could form the intent required for first-degree murder
on the day he killed his girlfriend." Pena v. Dickhaut, No. 09-
12204-RWZ, 2013 WL 140262, at *3 (D. Mass. Jan. 11, 2013).
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Dr. Brendel's testimony did not convince the jury, which
returned a verdict of first-degree murder based on deliberate
premeditation and on extreme atrocity or cruelty. The court denied
Pena's motion for a new trial, and the Supreme Judicial Court of
Massachusetts ("SJC") upheld the conviction on appeal. Thereafter,
Pena filed a petition for writ of habeas corpus in federal court.1
His original habeas petition raised seven issues, but
Pena abandoned all but two of them in the brief he submitted to the
district court, in which he argued that the prosecutor improperly
commented on his failure to testify in violation of the Fifth
Amendment. He also raised a claim of ineffective assistance of
counsel on the basis that his attorney inadvertently failed to
produce certain medical records to the prosecution during
discovery, which prevented her from questioning Dr. Brendel about
them at trial. Pena raised, and the SJC rejected, both of these
arguments on direct review. The district court held that the SJC's
determination of these issues was not unreasonable and denied the
petition for habeas relief.
1
It does not appear that Pena pursued any post-conviction
relief at the state court level. As the district court observed,
however, "Respondent does not contend that any procedural bars
prevent reaching the merits of Pena's claims. It appears that the
claims were properly exhausted and Pena's petition was timely
filed." Pena, 2013 WL 140262, at *2 n.3. Accordingly, we will not
address whether the absence of state post-conviction proceedings
procedurally bars Pena's federal habeas petition.
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II. Analysis
Under the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), a habeas petitioner must show that the
challenged state court adjudication was "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," or that the
decision "was based on an unreasonable determination of the facts."
28 U.S.C. § 2254(d)(1)–(2); see also Morgan v. Dickhaut, 677 F.3d
39, 46 (1st Cir. 2012). In this context, "unreasonable" means
"some increment of incorrectness beyond error." Morgan, 677 F.3d
at 46 (internal quotation marks omitted). This standard is "highly
deferential" to the state court. Burt v. Titlow, 571 U.S. ---,
2013 WL 5904117, at *4 (Nov. 5, 2013) (per curiam). It requires
the petitioner to "show that the state court's ruling on the claim
being presented in federal court was so lacking in justification
that there was an error . . . beyond any possibility for fairminded
disagreement." Id. (alteration in original) (internal quotation
mark omitted).
"A district court's decision to deny or grant a habeas
petition under 28 U.S.C. § 2254 is subject to de novo review."
Morgan, 677 F.3d at 46. Accordingly, like the district court, we
must determine whether the state court's decision was unreasonable
under the standard set forth in AEDPA. Stephens v. Hall, 294 F.3d
210, 217 (1st Cir. 2002).
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A. Fifth Amendment Violation
Pena argues that the state court proceedings violated the
Fifth Amendment because the prosecutor improperly commented on
Pena's failure to testify. It is well-settled that the Fifth
Amendment "forbids . . . comment by the prosecution on the
accused's silence." Gomes v. Brady, 564 F.3d 532, 537 (1st Cir.
2009) (alteration in original) (quoting Griffin v. California, 380
U.S. 609, 615 (1965)). To determine whether a petitioner is
entitled to collateral relief, "[f]irst, we determine whether the
comment offended the Fifth Amendment by insinuating improperly that
[the defendant's] failure to testify was evidence of guilt." Id.
(citing Griffin, 380 U.S. at 615). "Second, we ascertain whether
the comment had a 'substantial and injurious effect or influence in
determining the jury's verdict' such that reversal is warranted."
Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
In its closing argument, the prosecution addressed the
defense's argument that there was no evidence of motive:
Two people are close to each other, they have an argument
and one of them ends up dead. Well, one of them will
never be able to tell us why it happened, will she?
Celines Carabello, obviously, can never tell us. The
defendant is the only one who knows why he did it. He's
the only one who knows why he got so enraged that he had
to kill --
At this point, defense counsel objected and the court
sustained the objection. The prosecutor continued with his closing
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argument, and immediately after he concluded the court issued the
following curative instruction to the jury:
Members of the jury, counsel stated that the defendant is
the only one who knows, made reference in that regard.
The defendant, as I will instruct you later, has an
absolute right not to testify in this case, and it is
improper to comment on that right to remain silent. You
are to disregard that portion of the prosecutor's closing
argument.
During jury instructions, the court again emphasized that Pena had
an "absolute right not to testify," and instructed the jury "not to
draw any adverse inference against the defendant because he did not
testify."
On direct appeal, the SJC found that the impropriety of
the prosecutor's remark was a close question, but concluded that
"the prosecutor did not intend his comment to be understood as a
comment on Pena's failure to testify . . . ." Commonwealth v.
Pena, 913 N.E.2d 815, 829 (Mass. 2009). The SJC also found that
"the judge's prompt and thorough instructions here were
sufficiently clear and complete to negate any possible prejudice to
the defendant." Id. at 830 (internal quotation marks omitted).
On habeas review, the district court remarked that the
question of the comment's impropriety was indeed close, and "[i]f
[it] were deciding the issue in the first instance, [it] might
reach a different conclusion." Pena, 2013 WL 140262, at *6. But
under the deferential standard of § 2254(d), the district court
concluded that the SJC's holding was not "contrary to, or an
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unreasonable application of," federal law. Id. Moreover, the
district court agreed with the SJC that any error was harmless.
Id. It observed that "[t]he reference to Pena's silence was brief
and immediately interrupted by objection; it did not form a major
theme of the prosecutor's argument"; and the court's instructions
to the jury were prompt and thorough. Id. Accordingly, the
district court found that "Pena has failed to show that the error
had a 'substantial and injurious effect or influence' on the
verdict against him." Id. (quoting Brecht, 507 U.S. at 623).
The district court was correct on both points. The fact
that the district court disagreed with the SJC on the propriety of
the remark does not mean the SJC's determination was unreasonable
for the purposes of § 2254 review. In fact, this court has
explained that "if it is a close question whether the state
decision is in error, then the state decision cannot be an
unreasonable application of federal law." Morgan, 677 F.3d at 47
(internal quotation marks omitted). Under the deferential standard
of § 2254(d), the district court correctly allowed the SJC's
decision to stand.
Furthermore, we agree with both the SJC and the district
court that the error, if any, was harmless. "This court has
repeatedly held that a strong, explicit and thorough curative
instruction to disregard improper comments by the prosecutor is
sufficient to cure any prejudice from prosecutorial misconduct."
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United States v. Rodriguez, 675 F.3d 48, 63 (1st Cir. 2012) (citing
United States v. Riccio, 529 F.3d 40, 45 (1st Cir. 2008)). The
court's instructions here were more than sufficient. Indeed, we
have found that even without a contemporaneous curative
instruction, standard jury instructions alone can be sufficient to
mitigate the prejudice of an improper comment if the comment was an
"isolated instance of misconduct" and the evidence against the
defendant was "compelling." Gomes, 564 F.3d at 538–9. Here, as
the district court pointed out, the challenged comment was brief
and quickly interrupted, and the prosecution's case rested on the
substantial evidence it presented at trial, not on an impermissible
inference drawn from Pena's silence. Given the strength of the
court's curative instructions, we find the alleged error to be
harmless under these circumstances. We therefore affirm the
district court's holding regarding the Fifth Amendment claim.
B. Sixth Amendment Violation
Pena claims that his attorney's ineffective assistance at
trial deprived him of his Sixth Amendment right to counsel. To
succeed on this claim, Pena "must demonstrate both: (1) that
'counsel's performance was deficient,' meaning that 'counsel made
errors so serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment'; and (2) 'that the
deficient performance prejudiced the defense.'" United States v.
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Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
To demonstrate "deficient performance," Pena "must show
that his trial counsel's representation fell below an objective
standard of reasonableness." Rodriguez, 675 F.3d at 56 (internal
quotation marks omitted). This "highly deferential" standard
requires Pena to "overcome the presumption that . . . the
challenged action might be considered sound trial strategy." Id.
(alteration in original) (internal citations and quotation marks
omitted). A lawyer's performance is constitutionally deficient
"only where, given the facts known at the time, counsel's choice
was so patently unreasonable that no competent attorney would have
made it." Id. (internal quotation marks omitted).
"To demonstrate 'prejudice,' [Pena] must show 'a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
Id. at 57 (quoting Porter v. McCollum, 558 U.S. 30, 38–39 (2009)).
"Consequently, we must consider, on whole-record review, whether
the trial might have ended differently absent the lawyer's
blunder." Ouber v. Guarino, 293 F.3d 19, 33 (1st Cir. 2002).
The Supreme Court recently explained that when a federal
court reviews an ineffective assistance of counsel claim under
§ 2254, it must use a "doubly deferential standard of review that
gives both the state court and the defense attorney the benefit of
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the doubt." Burt, 2013 WL 5904117, at *2 (internal quotation marks
omitted); see also Morgan, 677 F.3d at 47 ("[H]abeas review
involves the layering of two standards. The habeas question of
whether the state court decision is objectively unreasonable is
layered on top of the underlying standard governing the
constitutional right asserted.") (internal quotation marks
omitted). This is an extremely difficult standard to meet, and
Pena has failed to do so here.
1. The Testimony of Dr. Brendel and the Holy
Family Hospital Records
Pena's Sixth Amendment claim is based on his counsel's
failure to enter into evidence records of Pena's hospitalization at
Holy Family Hospital ("HFH") in August 2004. Although Dr. Brendel
reviewed these records in preparation for her testimony, Pena's
counsel inadvertently failed to produce them to the prosecution
during discovery. Therefore, the prosecutor successfully objected
to Dr. Brendel's testimony regarding the HFH records and the court
struck that portion of her testimony from the record.
Dr. Brendel's testimony was based on Pena's medical
records going back to 1996, as well as interviews she conducted
with Pena and his sister. Dr. Brendel testified that, beginning in
1996 in the Dominican Republic, Pena was diagnosed with bipolar
disorder with psychotic features and treated for symptoms of severe
depression and psychosis. He also had problems with drug and
alcohol abuse at that time. In 1999, he was committed to a
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hospital and given electroconvulsive therapy and antipsychotic
medications.
Pena moved to the United States in 2002, where he
continued to experience problems with mental health and substance
abuse. In 2003, a doctor at Boston Medical Center diagnosed him
with recurrent major depression and prescribed several medications.
He saw a social worker five days before the murder, who noted
depressive symptoms and poor memory and concentration.
After the murder, but shortly before Pena turned himself
in, he went to a police station complaining that voices in his head
were telling him to hurt himself. He was referred to HFH, where he
was hospitalized for seven days. The records from that
hospitalization include a diagnosis of "psychotic disorder, not
otherwise specified," and confirm that Pena went to a police
station seeking help for auditory hallucinations. The records note
that Pena "does not appear to be a reliable historian," and explain
that "it is difficult to determine whether his responses are due to
cognitive impairment or planned evasiveness and avoidance, or one
posing as a mental patient." They further state that "[t]here is
a suspicion of being purposely avoidant and vague on account of his
illegal [immigration] status."
Once Pena was in custody for the murder, he was evaluated
at Bridgewater State Hospital for competence to stand trial. The
report from Bridgewater indicated a "high suspicion that Pena was
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feigning memory problems." In their interviews with Dr. Brendel
prior to trial, both Pena and his sister reported that he had been
experiencing symptoms of mental illness in the period leading up to
the murder. Pena also told Dr. Brendel that he had not slept for
three nights prior to the murder and had been using cocaine,
marijuana, and alcohol.
During the course of Dr. Brendel's testimony, Pena's
counsel asked about the HFH records. Dr. Brendel responded that:
[I]n those records, there was some concern about Mr.
Pena's difficulty with memory and being able to give an
accurate history. The discharge diagnosis included a
diagnosis of psychosis not otherwise specified. So, the
physicians in the hospital did observe him at some time
during the hospitalization to be suffering from psychotic
symptoms.
At that point, the prosecutor objected on the grounds that Pena had
not produced the HFH records in discovery. He did not appear
opposed to the admission of the records into evidence, but he
stated, "I'd like to see them, at the very least. If not, I ask
that the answer be stricken." Pena's counsel responded that "if
they weren't provided, it was inadvertently that they weren't
provided. And I don't have any more questions about these
records." The court decided to strike Dr. Brendel's answer
regarding the HFH records, and Pena's counsel offered no argument
against the court's decision.
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2. Application of Strickland to the Omission
of the HFH Records
On direct appeal, the SJC rejected Pena's argument that
his counsel's failure to produce the HFH records and introduce them
into evidence constituted ineffective assistance of counsel. It
decided that "even had the Holy Family Hospital records been
offered and admitted in evidence, they merely would have been
cumulative of other testimony offered by Dr. Brendel, a highly
qualified psychiatrist." Pena, 913 N.E.2d at 831. It also held
that "counsel's failure to offer the records in evidence (or to
make an offer of proof with them when a single answer of Dr.
Brendel's was struck) was plainly a strategic decision that was not
manifestly unreasonable," particularly in view of the fact that the
records contained information that was potentially harmful to Pena.
Id. at 832. On habeas review, the district court held that the
SJC's resolution of this claim was reasonable. Pena, 2013 WL
140262, at *4–5.
Pena argues on appeal that the SJC's determination of the
Sixth Amendment claim was unreasonable, because of the importance
of the HFH records to Pena's defense. In Pena's view, "the way
this case was presented to the jury revolved around whether Dr.
Brendel had an adequate basis for the opinions she gave concerning
Mr. Pena's mental state at the time of the murder." The prosecutor
attacked Dr. Brendel's credibility on the grounds that "all of the
facts about Mr. Pena's mental illness on which she relied came from
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the mouth of Mr. Pena himself, [and] were therefore self serving .
. . ." But, according to Pena, the HFH records were unique in this
respect, because there was no other documentation that Pena went to
a police station complaining of voices in his head. The HFH
records therefore offered the "only evidence that would have
directly countered the attack that the prosecutor made on her
credibility." The fact that he went to a police station to report
voices in his head demonstrates objectively and conclusively, Pena
argues, that he was mentally ill at the time of the murder, because
"[n]o one who is a fugitive in a murder case is going to go to a
police station and ask for help from mysterious voices unless the
voices are actually drumming their destructive message into the
target's brain."
Therefore, according to Pena, the HFH records were not
cumulative, because they offered uniquely objective evidence of
Pena's mental illness. For the same reason, the failure of Pena's
trial counsel to introduce them into the record had to be
prejudicial — "[i]t was the only evidence that provided external
verification for the information on which Dr. Brendel relied."
Pena argues further that no competent attorney would make the
strategic decision to omit such persuasive evidence from the
record, and that in fact Pena's attorney never made that choice.
Instead, as Pena reads the record, his attorney fully intended to
elicit testimony about the records, regardless of the potentially
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damaging information in them about Pena's memory problems and
possible evasiveness. She declined to go forward with her
questioning only when her inadvertent failure to produce came to
light, not because of any reasoned assessment of the evidence.
For two reasons, we do not believe that the HFH records
were as conclusive as Pena portrays them. First, Pena turned
himself in for the murder shortly after his hospitalization at
HFH,2 and his medical history includes multiple references to
possible deception on his part — either feigning memory loss or
giving evasive answers. A jury could conclude, therefore, that
Pena was falsely reporting the voices in his head to provide a
defense for the murder he had committed. Pena dismisses this
possibility as far-fetched, because a rational fugitive would never
risk walking into a police station just to feign illness. But the
fact that Pena turned himself in for the murder a short time later
makes it questionable that he feared apprehension by the police at
that time. Indeed, he may have been planning it.
A second problem is that there is a five-month gap
between the murder and the HFH hospitalization. Even if the HFH
records were conclusive proof of mental illness at that time, they
would not prove that he was suffering any symptoms at the time of
the murder. Dr. Brendel specifically testified that Pena's
2
Pena was hospitalized at HFH August 3-10, 2004. He
surrendered to the police on August 27. Pena, 913 N.E.2d at 822.
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symptoms of mental illness "wax and wane"; therefore, she
explained, Pena could have been experiencing serious symptoms at
the time of the murder, but not when he was evaluated at
Bridgewater. The same reasoning applies equally, however, in the
other direction: he could have been experiencing symptoms while at
HFH, but not at the time of the murder.
For these reasons, we do not share Pena's view that the
HFH records have unique and convincing evidentiary value.
Therefore, we conclude that the SJC was reasonable in determining
that their omission was not prejudicial. Furthermore, whether or
not Pena's trial counsel made a strategic choice to omit the
evidence,3 we do no think this is an error "so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment." Valerio, 676 F.3d at 246. The failure to
introduce a single piece of evidence of questionable value may
indeed seem like a mistake in hindsight, but it is not an error of
constitutional magnitude.
III. Conclusion
For the foregoing reasons, we affirm the district court's
order denying habeas relief.
3
We do not imply that the subjective intentions of Pena's
trial counsel are determinative; the reasonableness test under
Strickland is objective. See Rodriguez, 675 F.3d at 56.
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