Hensley v. Roden

United States Court of Appeals
For the First Circuit

No. 13-1147

KEVIN HENSLEY,

Petitioner, Appellant,

v.

GARY RODEN,
Superintendent, MCI Norfolk,

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 Thompson,
Circuit Judges.

Stewart T. Graham, Jr., with whom Graham & Graham was on
brief, for appellant.
Jennifer L. Sullivan, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.

June 20, 2014
 THOMPSON, Circuit Judge. Kevin Hensley ("Hensley") was

convicted in Massachusetts state court of first degree murder after

killing his estranged wife, Nancy Hensley ("Nancy"). Hensley

appealed and the Massachusetts Supreme Judicial Court ("SJC")

affirmed. Hensley turned to the federal courts. Alleging

violations of his Sixth Amendment rights to confrontation and

effective assistance of counsel, he sought a writ of habeas corpus

in United States District Court. Unconvinced, the district court

denied the petition. After due consideration, we affirm.

I. BACKGROUND

When we consider a state conviction on habeas review, we

presume the state court's factual findings to be correct. See

Abram v. Gerry, 672 F.3d 45, 46 (1st Cir. 2012). As a result, the

below facts are derived from the SJC decision, see Commonwealth v.

Hensley, 913 N.E.2d 339 (Mass. 2009), and the district court's

decision, which itself drew from the SJC decision, see Hensley v.

Roden, 2013 WL 22081 (D. Mass. 2013).

A. The Crime

Hensley and Nancy were married in 1979 and over the years

they had four children together. By January 2002, the marriage was

in trouble. The pair argued about whether Nancy was spending

enough time at home or whether she was spending too much time at a

local gym, possibly in the company of men. Hensley decided to

investigate the latter possibility by donning a fake beard and

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following Nancy to the gym. Though he saw no sign of infidelity on

Nancy's part, Hensley saw her speak with other men and he

confronted her.

Shortly thereafter, on January 9, 2002, Nancy filed for

divorce and obtained a temporary abuse prevention order against

Hensley. The order required Hensley to leave the family's home,

which was located at 198 Byron Street in East Boston. He moved to

his sister's house in nearby Winthrop. As per the order, Nancy

retained custody of the children, whom Hensley was prohibited from

contacting pending further hearing.

On January 16 (the scheduled hearing date), the parties

entered into an agreement. The order, which was entered as a

temporary order in the divorce proceeding, provided that apart from

prearranged visitation with the children, Hensley would stay away

from the family's home. Hensley would have use of the couple's

1988 Plymouth Horizon automobile and Nancy would use their 2000

Buick LeSabre. They agreed that the children would remain in

Nancy's care.

Not happy with the turn his life had taken, Hensley

became despondent. According to his family, friends, and work

supervisor, Hensley appeared depressed and distraught over the

break-up of his family. He separately confided in two friends that

if he lost custody of his children, he would kill Nancy and then

himself.

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 On January 22, Nancy filed a complaint for contempt in

family court, which alleged that Hensley was not complying with the

agreement they had entered into. A few days later, Hensley was

spotted by one of his neighbors jumping over a fence that

surrounded an empty lot that stood opposite his home at 198 Byron

Street. The neighbor reported this to Nancy. Hensley told a

friend that he had been attempting to see his children and that

Nancy had seen him and now she would try to take out another

restraining order against him.

A little over a week later, on January 31, Hensley

reported at 6:30 a.m. to his job at the Boston transportation

department. Around 8:00 a.m., Hensley informed his supervisor that

he was not "feeling right" and asked if he could use some vacation

time to head home. Hensley then went to his sister's house where

he stayed briefly before proceeding to 198 Byron Street. Hensley

parked his vehicle around the corner (and out of view) from the

house. He was next seen leaving the house around 11:45 a.m. He

left in Nancy's Buick LeSabre automobile.

That afternoon Hensley's oldest daughter returned from

school. The daughter, upon heading down to the basement to get

something to drink, found her mother's dead body. Nancy's body was

under her bedroom comforter; a blue necktie was tied tightly around

her neck. She had blood on her face and hands, and her left eye

was swollen. Nancy was wearing one sock and the other was in the

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kitchen with what appeared to be a bloodstain. There was no sign

of forced entry. Hensley's daughter called 911.

Meanwhile, Hensley drove Nancy's car to a ski resort in

New Hampshire. Hensley parked the car and ran a dryer vent hose

from the exhaust pipe into the car in an attempt to asphyxiate

himself. He was thwarted when New Hampshire police officers and

emergency personnel pulled Hensley from the vehicle around 9:00

p.m. and carried him to a nearby hospital. New Hampshire state

police quickly learned that Hensley was the suspect in a homicide

back in Massachusetts. Hensley was held on an involuntary

emergency hospitalization based on his suicide attempt, which

according to Hensley also included ingesting a bottle of sleeping

pills.

At 1:11 a.m., New Hampshire state police questioned a

Mirandized Hensley about Nancy's death. He admitted going to the

house, explaining that he wanted to get the Buick LeSabre

automobile and kill himself. When asked whether he went inside the

house, Hensley said "I think I did." Later in the interview he

changed his response to: "I don't remember, it's all a blur, I just

want to die." Hensley also claimed not to remember whether he saw

Nancy. He admitted having keys to both the house and the

automobile. Around 3:30 a.m., New Hampshire police learned that a

warrant had issued in Massachusetts for Hensley's arrest. Hensley

was then transported to jail.

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 B. The Trial and Conviction

Hensley was indicted and tried for murder in the first

degree based on alternative theories of deliberate premeditation

and extreme atrocity or cruelty. Although Hensley did not take the

stand, his defense was clear; he claimed mental impairment. In

essence, defense counsel attempted to show that Hensley was

incapable of forming the mental state required for first degree

murder under either of the charged theories. A variety of

witnesses testified on this point. Hensley's sister testified that

Hensley had always been a wonderful man and a doting and involved

father. After he was served with the initial abuse prevention

order though, Hensley became a different person. According to

Hensley's sister, he "basically fell apart," alternating between

being depressed, hysterical, incoherent, and despondent. Hensley's

daughter painted a similar picture, describing her father as having

a "nervous breakdown" and not wanting to live anymore. Hensley's

supervisor echoed similar sentiments. His friends testified that

a barely functioning Hensley "looked like a zombie."

Testifying at trial, as a witness for the state, was Dr.

Mark Flomenbaum, the chief medical examiner in Massachusetts at the

time. Dr. Flomenbaum, who did not perform Nancy's autopsy, was

called to take the stand because Dr. William Zane, the medical

examiner who had performed the autopsy, was not available. Dr.

Flomenbaum, after speaking to his credentials and explaining the

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autopsy process in general, turned to Nancy's autopsy. He

explained that he had reviewed the autopsy report, supporting

materials, and photographs. Dr. Flomenbaum went on to opine that

the cause of Nancy's death was "ligature strangulation," the

mechanism being "blood starvation to the brain." He also testified

regarding some of Dr. Zane's findings, including the length of the

struggle, which was put at two to ten minutes, and the nature of

the struggle, e.g., the fact that it appeared that the abrasions on

Nancy's neck were caused by her trying to pull the ligature off

during strangulation. The autopsy report itself was not admitted

into evidence; however, Dr. Flomenbaum had the report with him on

the witness stand to refer to as needed.

Following closing arguments, during which defense counsel

conceded that Hensley killed Nancy but emphasized that he could not

have formed the mental state required for a first degree murder

conviction, the case went to the jury. On July 14, 2002, Hensley

was found guilty of first degree murder under both the theory of

deliberate premeditation and extreme atrocity or cruelty. He was

sentenced to life in prison.

C. The State Court Appeals

Hensley appealed his conviction to the SJC and filed a

motion for a new trial in Massachusetts Superior Court based on

ineffective assistance of counsel. His motion was denied; he

appealed that as well. The SJC consolidated the two appeals and it

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issued a decision on September 15, 2009. In it, the court rejected

Hensley's myriad challenges, affirming his conviction and the

denial of the motion for a new trial. We need not recount all of

Hensley's claims, or the SJC's conclusions, as only two are

relevant to this appeal.

The first was Hensley's claim that the trial court

violated his Sixth Amendment right to confrontation when it

admitted the testimony of Dr. Flomenbaum, who was not the medical

examiner who performed Nancy's autopsy. The SJC was not persuaded.

It found that Dr. Flomenbaum's opinion as to Nancy's cause of death

was admissible because the doctor opined, as an expert, based on

information properly and typically relied on by experts, and was

subject to cross-examination. As for Dr. Flomenbaum's testimony

regarding Dr. Zane's specific findings contained in the autopsy

report (on which Dr. Flomenbaum based his cause-of-death opinion),

the SJC concluded that "such testimony may not have been admissible

at that point in the trial" since Dr. Flomenbaum was not the one

who prepared the autopsy report. However, any such error was

harmless, said the SJC, since the cause of death was not contested

at trial. And, according to the SJC, to the extent the testimony

was contested at trial, such testimony went to whether Hensley was

guilty under the theory of extreme atrocity or cruelty, e.g., the

testimony relating to the nature and extent of the struggle.

Therefore, the SJC concluded, because there was "more than

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sufficient evidence" to support Hensley's conviction under the

deliberate premeditation theory, it did not need to consider

whether any error in admitting Dr. Flomenbaum's testimony affected

the jury's verdict under the theory of extreme atrocity or cruelty.

The second argument made by Hensley, relevant to this

appeal, related to the performance of his trial counsel. Hensley

contended that counsel's failure to present expert testimony and

medical records pertinent to his mental impairment, and its effect

on his capacity, constituted ineffective assistance.

The expert Hensley was referring to was David Rosmarin,

M.D., a forensic psychiatrist whom Hensley's counsel had retained

and consulted. Dr. Rosmarin evaluated Hensley and was prepared to

testify at trial; however, defense counsel never called him. In

support of his appeals, Hensley had Dr. Rosmarin pen a written

report of his findings. Hensley pointed out that in it, Dr.

Rosmarin had made some favorable findings, namely that mental

impairment and dissociative symptoms precluded Hensley from

"form[ing] the intent to kill or inflict grievous bodily harm."

However, the SJC noted that the report was not all advantageous.

The report also contained damaging statements about Hensley's level

of criminal responsibility, as well as a gruesome description of

the murder, which included references to Hensley being angry and

blaming Nancy for his suicidal designs. Moreover, the SJC found it

significant that this was not a case in which defense counsel had

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failed to investigate a mental impairment defense. Rather, counsel

had thoroughly investigated (and ultimately presented) a mental

impairment defense, but counsel made the strategic decision not to

make Dr. Rosmarin part of that defense. Given the damaging

information contained in the report, the fact that calling Dr.

Rosmarin would have opened the door for the Commonwealth's expert

to testify, and the ample evidence of Hensley's severe depression

offered by family and friends, the SJC concluded that counsel was

not ineffective for failing to present Dr. Rosmarin's expert

testimony.

For similar reasons, the SJC was not persuaded that

counsel had bobbled things by not presenting medical record

evidence of Hensley's history of depression, in particular, records

from the East Boston Neighborhood Health Center where Hensley

treated from 1999 to 2002. While the records would have shown some

history of anxiety and depression, the SJC found that the records

may have brought some "unsympathetic facts" to light, such as

Hensley's lacking depressive symptoms and refusing counseling.

Again, given the abundance of evidence presented by family and

friends as to Hensley's mental state, the SJC saw no error in

counsel's decision not to introduce these medical records. As the

SJC said, Dr. Rosmarin and the medical records "may well have

adversely affected the trial strategy, which was to portray Hensley

as a suicidal, yet sympathetic family man."

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 D. Habeas Petition

Refusing to be put off, Hensley filed a habeas corpus

petition in the federal district court, renewing just the arguments

chronicled above, i.e., that his Sixth Amendment right to

confrontation was violated when Dr. Flomenbaum's testimony was

admitted, and his attorney's failure to introduce certain mental

health related evidence transgressed his Sixth Amendment right to

effective counsel. The district court denied the petition,

concluding that the SJC's decision did not run afoul of the

applicable federal law. Hensley now appeals.

II. DISCUSSION

A district court's decision to deny habeas relief

engenders de novo review. Morgan v. Dickhaut, 677 F.3d 39, 46

(1st Cir. 2012). We, like the district court, are guided by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C. § 2254. In the case of claims adjudicated on the merits in

state court, AEDPA contemplates just two scenarios that warrant a

federal court granting habeas relief. Id. § 2254(d)(1)-(2).

For one, a federal court may grant habeas relief if the

state court adjudication "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." Id. § 2254(d)(1). This means we look to the Supreme

Court's holdings, as opposed to dicta, at the time the state court

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rendered its decision, González-Fuentes v. Molina, 607 F.3d 864,

876 (1st Cir. 2010), while employing the following criteria.

An adjudication will be contrary to clearly established

law if the state court "'applies a rule that contradicts the

governing law set forth' by the Supreme Court or 'confronts a set

of facts that are materially indistinguishable from a decision of

[the Supreme Court] and nevertheless arrives at a result different

from [its] precedent.'" Gomes v. Brady, 564 F.3d 532, 537 (1st

Cir. 2009) (alterations in original)(quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)). On the other hand, a state court

adjudication constitutes an unreasonable application "if the state

court identifies the correct governing legal principle from the

Supreme Court's then-current decisions but unreasonably applies

that principle to the facts of the prisoner's case." Abrante v.

St. Amand, 595 F.3d 11, 15 (1st Cir. 2010) (internal quotation

marks omitted). An "'unreasonable application of federal law is

different from an incorrect application of federal law,'" and a

state court is afforded deference and latitude. Harrington v.

Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at

410).

The second scenario justifying habeas relief is if the

state court adjudication led to "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)(2).

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Though this means that a federal court will be taking a closer look

at a state court's findings of fact, the fundamental principle of

deference to those findings still applies. See John v. Russo, 561

F.3d 88, 92 (1st Cir. 2009).

A "state court's determination that a claim lacks merit

precludes federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court's decision."

Harrington, 131 S. Ct. at 786 (internal quotation marks omitted).

The confines of our review clear, we proceed to Hensley's

claims.

A. Admission of Dr. Flomenbaum's Testimony

Hensley solely contends that the SJC's decision as to the

admission of Dr. Flomenbaum's testimony was contrary to governing

Supreme Court precedent, see 28 U.S.C. § 2254(d)(1), specifically

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). In Melendez-

Diaz, which was decided a few months before the SJC issued its

decision in this matter, the Supreme Court considered whether a

Massachusetts trial court's admission into evidence of certificates

of analysis, which reported the results of forensic analysis done

on seized drugs, violated the defendant's constitutional rights.

See 557 U.S. at 307. As phrased by the Court, the operative

question was whether the certificates were "'testimonial,'

rendering the affiant 'witnesses' subject to the defendant's right

of confrontation under the Sixth Amendment." Id.

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 The court concluded that they were, finding that although

under Massachusetts law the moniker for the disputed documents was

"certificates," the so-called certificates were "quite plainly

affidavits." Id. at 310. Affidavits, the court explained, were

squarely within the core class of testimonial statements, which had

been previously chronicled in Crawford v. Washington, 541 U.S. 36,

51-52 (2004).1 See Melendez-Diaz, 557 U.S. at 309-10; see also

United States v. Cameron, 699 F.3d 621, 640 (1st Cir. 2012)

(explaining that the Supreme Court ruled that admitting the

disputed certificates "violated the Confrontation Clause because

they fell into the 'core class of testimonial statements'

identified in Crawford" (quoting Melendez-Diaz, 557 U.S. at 310)),

cert. denied, 133 S. Ct. 1845 (2013). Significantly, the

certificates of analysis were "'made under circumstances which

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial,'" and, under

Massachusetts law, "the sole purpose" of the certificates was to

provide evidence about the particulars (composition, quantity) of

the analyzed substance. Melendez-Diaz, 557 U.S. at 311 (quoting

Crawford, 541 U.S. at 52) (internal quotation marks omitted).

Thus, the Court concluded that the defendant, pursuant to the

protections afforded by the Sixth Amendment, was entitled to be

1
Others included: prior testimony not subject to cross
examination, depositions, and confessions.

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confronted at trial with the analysts who had performed the

forensic testing, absent their unavailability and a prior cross-

examination opportunity. Id.

According to Hensley, Melendez-Diaz "clearly established"

that forensic documents, such as autopsy reports, prepared under

circumstances that would lead an objective witness to believe the

statement would be available for use at a later trial, are

testimonial and not admissible absent confrontation. Since Dr.

Zane, the author of Nancy's autopsy report, did not testify,

Hensley claims that the autopsy report was non-admissible

testimonial hearsay. From this, Hensley extrapolates that it was

error for Dr. Flomenbaum to recite facts contained in the autopsy

report and to offer opinions based on the report.2 Hensley further

claims that the court's admission of the testimony was not, as the

SJC found, harmless error.

Unfortunately for Hensley, his Confrontation Clause claim

fails from its starting presumption. The "threshold question" in

these types of claims "is whether the challenged statement is

testimonial." United States v. Figueroa-Cartagena, 612 F.3d 69, 85

(1st Cir. 2010). "If it is not, the Confrontation Clause 'has no

application.'" Id. (quoting Whorton v. Bockting, 549 U.S. 406,

420 (2007)).

2
One opinion is excepted. Hensley does not contest on appeal
that Dr. Flomenbaum's opinion as to the cause of death was
admissible.

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 Here, contrary to the position Hensley takes on appeal,

Melendez-Diaz did not say one way or the other whether autopsy

reports should be considered testimonial. Indeed, the only

allusion to autopsy reports in the majority opinion is in a

footnote. There, in response to the dissent's suggestion that the

Confrontation Clause is not designed to detect errors in scientific

tests, and that other methods such as a new test might better serve

that purpose, the majority provided autopsies as an example of a

forensic test that cannot be repeated. See Melendez-Diaz, 557 U.S.

at 318 & n.5; see also id. at 337 (Kennedy, J., dissenting). The

Court in no way - explicitly or implicitly - indicated that autopsy

reports are testimonial in nature. It simply used autopsies as an

example of a forensic test where do-overs are not possible.

As the Supreme Court stated, Melendez-Diaz "involves

little more than the application of" the Crawford v. Washington

holding.3 Melendez-Diaz, 557 U.S. at 329. And notably, although

3
Given this characterization, it is worth mentioning that
post-Crawford and pre-Melendez-Diaz, the weight of the case law
appears to be against Hensley. See, e.g., United States v. De La
Cruz, 514 F.3d 121, 133 (1st Cir. 2008) (holding that an autopsy
report is a non-testimonial business record); United States v.
Feliz, 467 F.3d 227, 236 (2d Cir. 2006) (same). Thus, courts
consistently rejected Crawford-based habeas petitions that relied
upon the supposedly erroneous admission of autopsy reports. See
Mitchell v. Kelly, 520 F. App'x 329, 331 (6th Cir. 2013) (per
curiam) (holding that the state court did not unreasonably apply
Crawford "given the lack of Supreme Court precedent establishing
that an autopsy report is testimonial"), cert. denied, 134 S. Ct.
312 (2013); Vega v. Walsh, 669 F.3d 123, 128 (2d Cir. 2012) (per
curiam) (holding that the state court's decision was not contrary
to Crawford as reasonable jurists could disagree as to whether

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Crawford described a core class of testimonial statements (which

did not include autopsy reports), it was hardly definitive,

"leav[ing] for another day any effort to spell out a comprehensive

definition of 'testimonial.'" Crawford, 541 U.S. at 68. The

Supreme Court continued taking this approach, declining to "produce

an exhaustive classification of all conceivable statements . . . as

either testimonial or nontestimonial" in Davis v. Washington, 547

U.S. 813, 822 (2006). In other words, things are not as clear cut

as Hensley would make them out to be.

Further evidencing the unsettled nature of the issue at

hand is how courts have treated autopsy reports following Melendez-

Diaz. Most notably, this court in Nardi v. Pepe stated that "an

autopsy report can be distinguished from, or assimilated to, the

sworn documents in Melendez-Diaz." 662 F.3d 107, 111 (1st Cir.

2011). Referring to whether autopsy reports are covered by the

Confrontation Clause, we continued: "no one can be certain just

what the Supreme Court would say about that issue today."4 Id.;

autopsy reports came within Crawford's formulations); McNeiece v.
Lattimore, 501 F. App'x 634, 636 (9th Cir. 2012) (holding that
because Crawford did not clearly establish that autopsy reports are
testimonial, the state court's decision that portions of an autopsy
report were admissible was not contrary to Supreme Court
precedent), cert. denied, 133 S. Ct. 2357 (2013).
4
In Nardi, we added that even were the Supreme Court to
classify autopsy reports as testimonial, it is not clear whether
"the admissibility of in-court expert testimony that relied in some
measure on such a report would be affected." 662 F.3d at 112. We
noted the witness's ability to be cross-examined and the
longstanding tradition of allowing experts to rely on hearsay where

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see also United States v. McGhee, 627 F.3d 454, 459 (1st Cir. 2010)

(noting that the Melendez-Diaz Court was "sharply divided" and that

the Court's "new slant on the Confrontation Clause is likely to be

contested territory for some years"), vacated on reh'g on other

grounds, 651 F.3d 153 (1st Cir. 2011).

When other courts, post Melendez-Diaz, have been

confronted with the question of whether autopsy reports are

testimonial or not, disparity of treatment has reigned. On the one

hand, some courts have concluded that autopsy reports are not

testimonial. See, e.g., United States v. James, 712 F.3d 79, 99

(2d Cir. 2013) (deciding that the autopsy report at issue "was not

testimonial because it was not prepared primarily to create a

record for use at a criminal trial"), cert. denied, 2014 WL 2178370

(May 27, 2014); People v. Dungo, 286 P.3d 442, 450 (Cal. 2012)

(finding that even though California's statutory scheme required

the reporting of suspicious autopsy findings to law enforcement, an

autopsy serves several purposes and the "autopsy report itself was

simply an official explanation of an unusual death, and such

official records are ordinarily not testimonial"); Banmah v. State,

87 So. 3d 101, 103 (Fla. Dist. Ct. App. 2012) (concluding that

autopsy reports are not testimonial because they are made pursuant

to a statutory duty and not, in all instances, used in

doing so is common practice. Id. Given our determination today
though, there is no need for us to wade into this thicket.

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prosecutions); People v. Cortez, 931 N.E.2d 751, 756 (Ill. App. Ct.

2010) (finding that Melendez-Diaz did not upset the court's prior

holdings that autopsy reports are business records without Crawford

implications).

On the flip side, courts have come down the other way,

finding autopsy reports testimonial and affording them the

protection of the Confrontation Clause. See, e.g., United States

v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. 2012) (holding that,

applying the logic of Crawford, Melendez-Diaz, and Bullcoming, the

autopsy reports at issue were testimonial); Commonwealth v. Avila,

912 N.E.2d 1014, 1029, 1030 n.20 (Mass. 2009) (finding that the

medical examiner's autopsy report statements were testimonial);

Cuesta-Rodriguez v. State, 241 P.3d 214, 228 (Okla. Crim. App.

2010) (holding that in light of Oklahoma's statutory scheme

relative to the medical examiner's duty in the case of a suspicious

death, an autopsy report in such cases would be testimonial); Wood

v. State, 299 S.W.3d 200, 209-10 (Tex. Ct. App. 2009) (holding that

although not all autopsy reports are testimonial, given the suspect

nature of the victim's death, the subject autopsy report was

testimonial).

Of course, for habeas purposes, the operative time period

for assessing whether or not a rule is clearly established is at

the time the state court renders its judgment, Greene v. Fisher,

132 S. Ct. 38, 44 (2011). However, highlighting later or present

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uncertainty of the law can help us gauge how unsettled the law was

at the time the operative state court decision was issued. See,

e.g., Nardi, 662 F.3d at 112 (stating that "we stress the present

uncertainty of the law only to emphasize that it was even more

unsettled at the time of Crawford just how far that decision would

be extended"). As the above cases make clear, even after Melendez-

Diaz had been around a little longer, it was still uncertain where

autopsy reports stood. This strongly undercuts Hensley's claim

that the testimonial nature of autopsy reports was clearly

established.

In an effort to get around this fact, Hensley urges us

away from the narrow issue of whether the Supreme Court had, at the

time of the SJC decision, determined that autopsy reports in

particular are testimonial and asks us instead to focus on the

general parameters set by Melendez-Diaz. He claims Melendez-Diaz

clearly established that a forensic document is testimonial if it

was prepared under circumstances that would lead an objective

witness to believe that it would be available for use at a later

trial. Because the Massachusetts statutory scheme requires (among

other things) that if a medical examiner suspects foul play, he or

she alert the district attorney and make available any records from

the investigation, see Mass. Gen. Laws ch. 38, § 7, Hensley claims

that an objective witness would believe that an autopsy report

might be used in later criminal proceedings.

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 Even assuming Hensley has adequately characterized what

Melendez-Diaz says, his argument misses the mark. He is correct

that AEDPA does not require a "Supreme Court case directly on all

fours," and instead it is sufficient if the Court's "general

principles can be discerned." White v. Coplan, 399 F.3d 18, 25

(1st Cir. 2005). However, it is also true that the "contrary to"

habeas standard is a difficult one to meet; federal habeas relief

functions as a "guard against extreme malfunctions in the state

criminal justice systems, and not as a means of error correction."

Greene, 132 S. Ct. at 43 (internal quotation marks omitted). The

state court decision "must be substantially different from the

relevant precedent of [the Supreme] Court." Williams, 529 U.S. at

405.

Taken in this light, we cannot see how the SJC's

rejection of Hensley's Confrontation Clause argument was contrary

to governing Supreme Court precedent. As we hashed out above, at

the time the SJC issued its decision (and indeed well after that),

it was not settled that autopsy reports fell within the core class

of testimonial documents enumerated in Crawford, or within the

parameters set by Melendez-Diaz. Given that the Supreme Court had

given no clear answers relative to this issue, it cannot be said

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that the SJC's decision was contrary to clearly established law.5

Hensley's Confrontation Clause entreaty fails.

B. Ineffective Assistance of Counsel

The other half of Hensley's appeal relates to his Sixth

Amendment right to effective representation. To remind the reader,

Hensley faults his counsel for not presenting David Rosmarin, M.D.

(the forensic psychiatry expert retained by the defense) as a

witness, and for not introducing into evidence medical records

pertinent to his mental impairment, and its effect on his capacity.

Hensley claims that the SJC's rebuke of his ineffective assistance

of counsel claim was an unreasonable application of clearly

established federal law, see 28 U.S.C. § 2254(d)(1), as well as an

unreasonable determination of the facts given the evidence

presented at trial, see id. § 2254(d)(2). We can make quick work

of the second part of his contention and so begin there.

i. Section 2254(d)(2) Claim

Hensley argues that the SJC's determination that counsel

was not deficient for failing to introduce his medical records was

based in part on clear factual error, which resulted in an

unreasonable determination of the facts. See id. In particular,

Hensley highlights some of the court's factual findings about

5
In light of our determination, there is no need to get into
whether it was error for Dr. Flomenbaum to testify about, and offer
opinions based on, Nancy's autopsy report. Similarly, delving into
the impact of the admission of the report on Hensley's case, i.e.,
whether it was harmless error, will not be required.

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portions of his medical records, which the court perceived could

have had a negative impact on the jury, thus validating counsel's

decision not to introduce the records.

The problem is that although Hensley frames this as a

fact-based habeas challenge, a review of his brief reveals that he

does not dispute the accuracy of any of the SJC's factual

determinations. Rather, Hensley quibbles with the emphasis the

court put on certain facts or the context in which the court placed

the facts. For example, Hensley complains that the SJC's finding

that "Hensley was greatly concerned that his depression medication

was impairing his sexual performance" bore no relevance. Hensley

also faults the district court for not mentioning - when it found

that Hensley "had showed no symptoms of depression during two

separate visits" - that those visits occurred back in 1999. In

other words, Hensley does not even allege that the court's factual

findings were erroneous, let alone furnish us with evidentiary

support to overcome the "fundamental principle of deference to

state court findings" that § 2254(d)(2) calls for. John, 561 F.3d

at 92 (internal quotation marks omitted). There is no more to be

said. Hensley's § 2254(d)(2) challenge fails.

ii. Section 2254(d)(1) Claim

The rest of Hensley's ineffective assistance habeas claim

goes like so. According to Hensley, the SJC's determination that

his Sixth Amendment right was not abridged - either by counsel's

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failure to call Dr. Rosmarin or introduce the medical records -

was an unreasonable application of Strickland v. Washington, 466

U.S. 668 (1984).6 See 28 U.S.C. § 2254(d)(1).

For a defendant to be entitled to reversal of a

conviction pursuant to Strickland, he must make a two part showing.

466 U.S. at 687. The first piece is that defense counsel's

performance was deficient, that is, the attorney "made errors so

serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. On top of

a flawed performance, there must also be prejudice to the defense.7

Id. It must be "reasonably likely" that the result of the criminal

proceeding would have been different, id. at 696, and that

likelihood "must be substantial, not just conceivable."

Harrington, 131 S. Ct. at 792. The defendant's burden is a heavy

one, Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012),

and an ineffective assistance of counsel showing is not an easy one

6
The SJC actually considered Hensley's ineffective assistance
of counsel claim under Commonwealth v. Williams, which, like
Strickland, places a dual focus on counsel's performance and
defendant's prejudice. See 900 N.E.2d 871, 874 (Mass. 2009)
(citing Commonwealth v. Wright, 584 N.E.2d. 621, 624 (Mass. 1992)).
The Massachusetts standard employed by the SJC is at least as
protective of defendants as the federal standard. See Yeboah-Sefah
v. Ficco, 556 F.3d 53, 70 n.7 (1st Cir. 2009). Hensley does not
claim otherwise.
7
Given that neither the SJC nor the district court saw any
problem with how counsel comported himself, they did not consider
the prejudice prong.

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to make given our deferential review, United States v. Valerio, 676

F.3d 237, 246 (1st Cir. 2012).

Since we are considering a habeas challenge, we are not

actually tasked with deciding whether Hensley's counsel's

performance fell short of Strickland's requirements; rather the

"pivotal question is whether the state court's application of the

Strickland standard was unreasonable." Harrington, 131 S. Ct. at

785. Here, it is clear, the SJC's application was not

unreasonable. We start with the retained (but not called) forensic

psychiatrist, Dr. Rosmarin.

As the SJC noted, Dr. Rosmarin's testimony, according to

his later obtained affidavit, would have been a mixed bag. For

instance, Dr. Rosmarin concluded that Hensley suffered from Major

Depression, and in the moments before Nancy's killing, could not

"conceive of" killing Nancy or weigh such a decision or "act in

furtherance of this weighing." Hensley "was not able to form the

intent to kill or inflict grievous bodily harm" because mental

impairment and dissociative symptoms prevented him from doing so.

Not surprisingly, Hensley hones in on these statements; however,

Dr. Rosmarin's take was not all favorable. Dr. Rosmarin had also

determined that Hensley "did not lack criminal responsibility for

the killing." And Dr. Rosmarin relayed Hensley's grisly

description of the murder. Particularly, Hensley stated that he

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was "angry" and "afraid I might beat [Nancy] up." Hensley said he

started "choking her," stating "[y]ou destroyed me and my family."

"The decision whether to call a particular witness is

almost always strategic, requiring a balancing of the benefits and

risks of the anticipated testimony." Horton v. Allen, 370 F.3d 75,

86 (1st Cir. 2004). Here, in addition to keeping out some

potentially nocuous testimony, trial counsel's decision not to call

Dr. Rosmarin meant that the state could not present the rebuttal

expert witness that it had retained. It is on Hensley to "overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy." Strickland, 466

U.S. at 689 (internal quotation marks omitted). It is plain that

he has not done that here.

We reach the same conclusion as to Hensley's East Boston

Neighborhood Health Center medical records. As with Dr. Rosmarin's

testimony, it is possible the medical records would have done more

harm than good to Hensley's case. The records did evidence

Hensley's history of depression and anxiety. However, as the SJC

pointed out, a jury may not have looked favorably on other portions

of the records, e.g., many notations regarding Hensley's concern

with how his anti-anxiety medication was affecting his sexual

performance (albeit with a couple of mentions of how this was

impacting his marriage), a notation about Hensley's lack of

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depressive symptoms, as well as one regarding a refusal to go to

counseling.

To prevail under Strickland, counsel's choice must have

been "so patently unreasonable that no competent attorney would

have made it." United States v. Rodriguez, 675 F.3d 48, 56 (1st

Cir. 2012) (internal quotation marks omitted). Given the possible

negative impact of the medical records, and the fact that other

evidence (family and friend testimony) demonstrated Hensley's

depression, we find it hard to see how defense counsel's decision

not to introduce the East Boston Neighborhood Health Center medical

records was patently unreasonable.

To sum things up, the SJC reasonably determined that

defense counsel's decision not to call Dr. Rosmarin, or present the

subject medical records, was sound. Hensley's attorney clearly

investigated and pursued a mental incapacity defense. Counsel

retained Dr. Rosmarin and had him evaluate Hensley three times

prior to trial. Counsel obtained Hensley's East Boston

Neighborhood Health Center medical records and provided these

records to Dr. Rosmarin. Counsel then reasonably elected to try

and establish Hensley's mental impairment through testimony from

his friends and family, choosing not to introduce expert testimony

from a forensic psychiatrist or the medical records pertaining to

Hensley's mental health treatment. Counsel obtained a mental

impairment instruction and argued in summation that Hensley's

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impairment made murder in the second degree the more appropriate

choice.

Relief pursuant to 28 U.S.C. § 2254(d)(1) is not called

for when this court might merely have a differing opinion as to how

things should have turned out. See Sanna v. Dipaolo, 265 F.3d 1,

13 (1st Cir. 2001). To the contrary, the "state court decision

must be so offensive to existing precedent, so devoid of record

support, or so arbitrary, as to indicate it is outside the universe

of plausible, credible options." Id. (internal quotation mark

omitted). This is a high hurdle, which we are not even close to

surmounting here. Hensley has failed to cast doubt on the SJC's

decision as to his Sixth Amendment ineffective assistance of

counsel claim. The SJC did not unreasonably apply Strickland when

it concluded that Hensley's attorney's performance was not

deficient.8 Hensley's § 2254(d)(1) contest is without merit.

III. CONCLUSION

Both Hensley's Sixth Amendment right to confrontation

offering, and right to effective representation imploration, fall

short. The district court's denial of Hensley's petition for

habeas relief is affirmed.

8
Because (as we see it) the SJC's determination regarding
counsel's performance was not unreasonable, we need not get into
Strickland's prejudice component.

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