Smith v. Dickhaut

United States Court of Appeals
For the First Circuit

No. 15-1770

JAMES J. SMITH,

Petitioner, Appellant,

v.

THOMAS DICKHAUT,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges,
McAuliffe,* District Judge.

Stewart T. Graham, Jr., with whom Graham & Graham was on
brief, for appellant.
Maura Healey, with whom Jennifer K. Zalnasky and the Office
of the Massachusetts Attorney General was on brief, for appellee.

September 7, 2016

_____________________

*Of the District of New Hampshire, sitting by designation.
 McAULIFFE, District Judge. Petitioner, James Smith, was

convicted by a jury in the Commonwealth of Massachusetts of first-

degree murder, armed home invasion, and unlawful possession of a

firearm. His motion for a new trial was denied and he appealed

both the denial of that motion and his convictions to the

Massachusetts Supreme Judicial Court (“SJC”). The SJC

consolidated those appeals and reversed Smith’s conviction for

armed home invasion, but upheld the remaining convictions. The

SJC also affirmed the trial judge’s denial of Smith’s motion for

a new trial. Commonwealth v. Smith, 946 N.E.2d 95 (2011). Smith

then sought federal habeas corpus relief from the United States

District Court for the District of Massachusetts, claiming that he

had been deprived of his constitutionally protected right to

effective legal representation when trial counsel failed to fully

and properly advise him about his right to testify at trial. In

a closely related claim, Smith also asserted that, because he

waived his right to testify based upon counsel’s erroneous (and

constitutionally deficient) advice, that waiver was invalid. And,

finally, Smith asserted that trial counsel provided deficient

representation by failing to marshal and present exculpatory

evidence in his defense. The district court denied the petition

and Smith has appealed. We affirm.

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 I. Standard of Review

The district court’s denial of Smith’s petition for

habeas corpus relief is reviewed de novo. Barbosa v. Mitchell,

812 F.3d 62, 66 (1st Cir. 2016).

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C.

§ 2254, the power to grant federal habeas relief to a state

prisoner with respect to claims adjudicated on the merits in state

court has been substantially limited. A federal court may disturb

a state conviction if the state court’s resolution of the

constitutional issues before 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.” 28 U.S.C. ' 2254(d)(1). The Supreme Court has

explained the distinction between decisions that are “contrary to”

clearly established federal law, and those that involve an

“unreasonable application” of that law, as follows:

Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.

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Williams v. Taylor, 529 U.S. 362, 412—13 (2000). The Court also

noted that an “incorrect” application of federal law is not

necessarily an “unreasonable” one.

[T]he most important point is that an unreasonable
application of federal law is different from an
incorrect application of federal law . . . . Under
§ 2254(d)(1)’s “unreasonable application” clause, then,
a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.

Id. at 410—11 (emphasis in original). So, to prevail, a state

habeas petitioner must demonstrate that “the state court’s ruling

on the claim being presented in federal court was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Alternatively, federal habeas relief may be granted if

the state court’s adjudication “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)(2). Section 2254(e)(1) goes on to provide that “a

determination of a factual issue made by a State court shall be

presumed to be correct” and the habeas petitioner “shall have the

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burden of rebutting the presumption of correctness by clear and

convincing evidence.”

Here, the parties disagree at the outset about the degree

of deference we should afford to factual findings made by the state

court. Pointing to the language of § 2254(d)(2), Smith asserts

that he need only demonstrate that such factual findings were

“unreasonable.” The Commonwealth, on the other hand, says factual

findings made by the state court are, under § 2254(e)(1), presumed

to be correct, and Smith bears the burden of rebutting that

presumption by clear and convincing evidence. As this court has

previously noted, the circuit courts of appeal disagree as to the

proper interplay between §§ 2254(d)(2) and 2254(e)(1). See, e.g.,

John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender,

507 F.3d 50, 58—59 (1st Cir. 2007).

The Supreme Court seemed poised to clarify the point in

2010, when it granted certiorari to answer “the question of how

§§ 2254(d)(2) and (e)(1) fit together.” Wood v. Allen, 558 U.S.

290, 300 (2010). In the end, however, the Court concluded that

the outcome of the case before it did “not turn on any interpretive

difference regarding the relationship between these provisions.”

Id. Even giving the petitioner in Wood the benefit of

§ 2254(d)(2)’s standard (which is less deferential to state court

findings of fact), the Court concluded that he was not entitled to

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habeas relief because the state court’s findings of fact were not

unreasonable in light of the evidence presented. Id. at 301.

This court has noted the Supreme Court’s silence on

precisely how section 2254(d)(2) and 2254(e)(1) fit together, and

it has yet to address a case in which it was necessary to resolve

that issue. See, e.g., Robidoux v. O'Brien, 643 F.3d 334, 338 n.3

(1st Cir. 2011) (“We have previously declined to delve into the

relationship between subsections (d)(2) and (e)(1), as has the

Supreme Court, and again have no need to do so.”) (citations

omitted). At the same time, this circuit has routinely held

petitioners to the § 2254(e)(1) “clear and convincing” standard

without reference to § 2254(d)(2), albeit not in a case in which

resolving the fit between the two sections would appear to have

made any difference. See, e.g., Linton v. Saba, 812 F.3d 112, 116

(1st Cir. 2016) (“We must accept the state court findings of fact

unless convinced by clear and convincing evidence that they are in

error.”) (citations and internal punctuation omitted); Jewett v.

Brady, 634 F.3d 67, 75 (1st Cir. 2011) (“State court findings of

fact are presumed to be correct unless the petitioner rebuts this

presumption of correctness with clear and convincing evidence.”)

(citations and internal punctuation omitted). The record in this

case allows us to proceed in similar fashion, because even if we

were to assess the state court’s factual determinations under the

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more petitioner-friendly standard set out in § 2254(d)(2), rather

than the more deferential standard in 2254(e)(1), Smith would still

not be entitled to the relief he seeks.

II. Factual Background

In light of the evidence presented at Smith’s trial and

the jury’s verdict, the SJC found the relevant facts underlying

his convictions to be as follows. In June of 2006, Smith moved

into the apartment of Patricia Higgs in North Adams, Massachusetts.

During his relatively brief stay, Smith sold a variety of drugs

from Higgs’ apartment, including cocaine, crack, and heroin. He

employed Higgs in the business, compensating her with money and

drugs. Eventually, however, Higgs and Smith had a falling out and

she asked him to leave. About two weeks later, Kijona Osmond, the

murder victim, moved into Higgs’ apartment and began operating a

similar drug-trafficking business. At that point, five people

were living in the apartment including Higgs, Osmond, and a woman

named Angela Stark.

On July 26, 2006, at approximately 2:00 a.m., Smith went

to a Dunkin’ Donuts near Higgs’ apartment and spoke with one of

the store’s employees. Shortly before leaving, he posed an

unusual question: Whether she would contact the police if she saw

someone get shot. Smith then went to Higgs’ apartment and knocked

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on the door. Higgs opened the door and saw Smith standing in the

threshold holding a firearm. Smith grabbed Higgs by the neck and

threw her against the wall and, while holding the weapon to her

head, demanded to know where the “stuff” was. Higgs said, “Please

don’t do this, my baby is in the other room.” Stark, who was in

the kitchen when Smith entered the apartment, confirmed the violent

nature of his entry and testified that Higgs pleaded with him,

“don’t do it, my baby is here.”

At that point, Osmond tried to make his way to the

kitchen, where the back door to the apartment was located. Smith

released Higgs and attempted to grab Osmond’s shirt. Osmond

turned to confront Smith, at which point Smith fired a single round

into Osmond’s neck. Osmond immediately collapsed onto his

stomach, with the left side of his face on the floor. Smith

stepped over Osmond, straddled his prone body, and fired a second

(fatal) shot into the back of his head. Smith then leaned down

to remove money and drugs from Osmond’s pockets and, after

threatening the remaining occupants of the apartment and warning

them to keep their mouths shut, fled the building.

Higgs, who had escaped the apartment when Smith released

her to confront Osmond, returned and discussed with Stark the

potential legal implications should police discover contraband in

Osmond’s pockets when they arrived. The women went through his

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pockets, removed whatever Smith had left behind, and left the

apartment. Higgs then telephoned police on Stark’s mobile phone.

North Adams police officers, as well as a Massachusetts state

trooper, soon arrived at the scene, where they discovered the

victim’s body lying on the floor with a loaded handgun beside him.

Meanwhile, Smith went to the apartment of some

acquaintances, where he forced the door open. He told them he had

threatened Higgs and held a gun to her head. He also admitted he

shot Osmond in the throat, saying he thought Osmond was going to

shoot him. Smith also confessed that after Osmond had fallen to

the floor, he shot him again in the back of the head. One of the

occupants of the apartment testified at trial that Smith had said

that he was motivated by the fact that “they were making the money

and he wasn’t.” Smith then told the occupants of the apartment

that because they were now witnesses to his confession, he was

going to have to kill them as well, saying “There will be no

witnesses” and, therefore, “Everyone must die.” Eventually,

however, Smith calmed down and fell asleep. He was awakened when

police officers came to the apartment to interview its occupants.

Smith fled out a bedroom window but was soon located and taken

into custody by North Adams police officers.

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 III. Procedural Background

Smith was tried in the Berkshire County Superior Court.

A jury convicted him of murder in the first degree on theories of

both deliberate premeditation and felony-murder (the predicate

crime being armed home invasion, for which Smith was also

convicted). The jury also found Smith guilty of unlawful

possession of a firearm. Smith was acquitted, however, of three

less serious crimes relating to threats he allegedly made against

the occupants of Higgs’ apartment.

On appeal, the SJC reversed Smith’s armed home invasion

conviction, concluding that the indictment failed to adequately

identify the specific home invasion at issue, i.e., Smith’s

forcible entry into Higgs’ apartment, or his subsequent forcible

entry into the apartment of his acquaintances. Nevertheless, the

court upheld Smith’s felony-murder conviction, concluding that

because the trial court’s instructions to the jury focused the

jury’s consideration on the incident at Higgs’ apartment, there

could be no doubt that Smith was convicted of felony-murder on the

appropriate predicate offense: the armed home invasion of Higgs’

apartment. Finally, the SJC affirmed the trial court’s denial of

Smith’s motion for a new trial, concluding that Smith had validly

waived his right to testify at trial, and holding that his defense

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counsel did not mislead him or provide constitutionally deficient

representation.

Before us are three of the claims Smith raised in his

federal habeas petition: first, that he waived his right to testify

at trial based upon incorrect legal advice and, therefore, the

waiver was invalid; second, that trial counsel provided

constitutionally deficient representation when he failed to

properly advise Smith about important consequences associated with

waiving his right to testify; and, finally, that trial counsel

provided constitutionally deficient representation by failing to

marshal available evidence to rebut the armed home invasion charge,

undermine the felony-murder charge, and support Smith’s claim of

self-defense.

In a thorough and thoughtful opinion, the district court

rejected each claim. The district court granted Smith a

certificate of appealability and he appealed.

IV. Discussion

To prevail before the SJC on his ineffective assistance

claims, Smith bore the burden of satisfying the two-part test

articulated in Strickland v. Washington, 466 U.S. 668 (1984).

That is, he was required to demonstrate that counsel’s performance

fell below an objective threshold of reasonable care and that

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counsel’s deficient performance prejudiced him. See id. at 687.

To satisfy the prejudice test, Smith had to establish that, but

for counsel’s deficient performance, there was a reasonable

probability that the outcome of his trial would have been

different. See Turner v. United States, 699 F.3d 578, 584 (1st

Cir. 2012). “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at

694. In other words, the likelihood that the outcome of the trial

would have been different “must be substantial, not just

conceivable.” Harrington, 562 U.S. at 112.

In the context of a federal habeas proceeding, claims of

ineffective assistance of counsel present mixed questions of law

and fact which are reviewed under § 2254(d)(1)’s “unreasonable

application” clause. See Teti, 507 F.3d at 57. Consequently, the

question before this court (as it was before the district court)

is whether the SJC’s application of the Strickland standard to

Smith’s ineffective assistance claims was “unreasonable.” Our

inquiry is quite different from a de novo determination of whether

trial counsel’s performance fell below the standards established

in Strickland.

Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal
conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two

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 questions are different. For purposes of § 2254(d)(1),
“an unreasonable application of federal law is different
from an incorrect application of federal law.” A state
court must be granted a deference and latitude that are
not in operation when the case involves review under the
Strickland standard itself.

Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410).

In this case, then, we must look for an “unreasonable application”

of Strickland.

A. Advice Regarding Smith’s Waiver of His Right to Testify

Turning first to Smith’s claim of ineffective assistance

as it relates to his testimonial waiver, we start with the basics:

“a defendant’s right to testify in his own defense is a

‘fundamental constitutional right’ and is ‘essential to due

process of law in a fair adversary process.’” Casiano-Jiménez v.

United States, 817 F.3d 816, 820 (1st Cir. 2016) (quoting Rock v.

Arkansas, 483 U.S. 44, 51, 53 n.10 (1987)). The defendant’s lawyer

“bears the primary responsibility of informing and advising the

defendant of this right, including its strategic ramifications.”

Id. Counsel is also obliged to explain that the decision to

testify or not belongs exclusively to the defendant. Importantly,

however, no specific requirements govern the nature or content of

those essential conversations between counsel and his or her

client. See id. (“In determining whether a lawyer has adequately

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apprised his client of this fundamental right, no particular

formulation is required. There are no magic words; the inquiry

is whether ‘some sort of conversation’ has occurred between the

attorney and his client, such that ‘the client can make a knowing

and informed decision’ regarding whether to testify in his own

defense.”) (quoting Owens v. United States, 483 F.3d 48, 60 n.10

(1st Cir. 2007)).

In support of his assertion that trial counsel provided

constitutionally deficient advice regarding his right to testify,

Smith relies upon his own affidavit and an affidavit filed by trial

counsel. In the latter, counsel relates that: (1) he did discuss

with Smith whether or not he should testify; (2) Smith informed

counsel of his desire to testify, so he might tell his version of

the events; (3) counsel informed Smith that, on cross-examination,

the prosecutor would not simply allow him to re-tell his story but

would, instead, restrict him to answering questions put to him;

(4) counsel advised Smith that, based upon the evidence introduced

by the Commonwealth, he did not believe Smith had a viable theory

of self-defense; (5) counsel told Smith that, in his professional

opinion, he did not believe the jury would credit Smith’s proposed

testimony; and, finally, (6) counsel told Smith that if he followed

counsel’s advice and did not testify, then if he were convicted,

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he could challenge both his waiver of the right to testify and

counsel’s advice post-trial.

Seizing upon that final bit of advice, Smith says he

understood counsel to mean that his decision to waive the right to

testify was “not final” and that, if convicted, he could obtain a

reversal on appeal by simply challenging counsel’s advice and his

waiver. Moreover, he claims he waived his right to testify based

upon that (mistaken) understanding of counsel’s advice.

Consequently, says Smith, his waiver was not valid.

Trial counsel’s actual advice —— “that if [Smith]

followed my advice and did not testify, then if he were convicted

he could challenge both his failure to testify and my advice post-

trial” —— seems, on its face, to be rather unremarkable. It is

certainly correct to say that Smith would be free, if convicted,

to challenge counsel’s advice on appeal, presumably arguing that

for some reason it was patently unreasonable and amounted to

ineffective assistance. Additionally, Smith could argue (as he

does) that his testimonial waiver was invalid to the extent he

relied upon counsel’s purportedly unsound advice. Of course, if

counsel had actually told Smith that he could count on obtaining

a reversal on appeal if he waived his testimonial right and was

subsequently convicted, a legitimate issue would arise with

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respect to both the competency of counsel’s representation and the

validity of Smith’s waiver.

But, both of the Massachusetts courts that reviewed

Smith’s claims concluded that did not happen. The state trial

court determined that counsel’s advice to Smith concerning his

right to testify (and whether he should exercise or waive that

right) was neither incorrect nor constitutionally deficient. The

trial judge also found that Smith’s claimed understanding of

counsel’s advice was not credible. The court supported its

credibility determination by noting that: (1) Smith’s affidavit

was self-serving and conclusory; (2) defense counsel was “very

experienced” and “is frequently called upon in murder cases”;

(3) the record “contains ample evidence that [Petitioner] and his

trial counsel discussed his right to testify”; and, (4) through

his affidavit, trial counsel “did not indicate any willingness to

accept fault for allegedly misadvising” Smith. Having fully

considered Smith’s claim, as well as the legal and factual support

upon which he relied, the trial judge concluded that the “record

is clear . . . that [Petitioner] made a voluntary, strategic

decision not to testify after adequate consultation with his trial

counsel.”

On appeal, the SJC also construed Smith’s affidavit as

claiming that he thought his decision not to testify would allow

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him to later obtain a reversal of any conviction. Smith, 946

N.E.2d at 105—06. See also id. at 106 (construing Smith’s

“purported misunderstanding” of counsel’s advice to mean that he

could have a “do over” if he followed counsel’s advice, elected

not to testify, and was subsequently convicted). Like the trial

court, the SJC concluded that Smith failed to demonstrate that

trial counsel provided either an erroneous or an incomplete

explanation of his constitutionally protected right to testify at

trial. The SJC noted, inter alia, that trial counsel was both

“thorough and highly experienced” (to the point of documenting on

the record the fact that he and Smith had discussed whether Smith

wished to testify), counsel informed Smith that he had an absolute

right to testify, and counsel explained to Smith why he believed

Smith should elect not to testify.1 Indeed, the SJC found “no

error in the advice offered by counsel.” The SJC also affirmed

1 Counsel’s transcribed conversation with Smith included the
following exchange:

Counsel: [Mr. Smith], I have asked to have the “steno”
here because you and I have had conversations in the
back that are in private and we have discussed whether
or not you are desirous of taking the stand and
testifying in this matter. I have explained to you that
it’s your absolute right. I have offered you an opinion
relative to what I think you should do. And I would
like you to clarify for the record whether or not you
wish to testify in this particular matter.

[Smith]: No, I wish not to testify in this matter.

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the trial judge’s factual finding that Smith’s affidavit

statements regarding his understanding (or misunderstanding) of

counsel’s advice were not credible.

We agree with the district court that Smith failed to

demonstrate that the SJC’s resolution of his ineffective

assistance claim was “contrary to, or involved an unreasonable

application of, clearly established Federal law,” as expressed in

Strickland. 28 U.S.C. § 2254(d)(1). Nor has Smith demonstrated

that either the trial judge’s or the SJC’s credibility

determination was “based on an unreasonable determination of facts

in light of the evidence presented.” 28 U.S.C. § 2254(d)(2).

While counsel’s advice arguably might have been more precise or

complete (say, by informing Smith that if he were convicted, the

probability of successfully challenging counsel’s advice and/or

his waiver on appeal was very low), it would not be unreasonable

to conclude, as the SJC did, that the advice given was neither

inaccurate nor misleading. Nor has Smith shown that the state

courts unreasonably rejected his claimed confusion about his

appellate rights as not credible.

For the same reasons, it necessarily follows that

Smith’s renewed challenge to his decision to waive his right to

testify fails. The SJC’s conclusion that Smith’s waiver was not

induced by erroneous legal advice was not unreasonable under

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§ 2254(d)(1), nor was its decision to defer to the trial court’s

factual finding that Smith had not actually misunderstood

counsel’s advice unreasonable under § 2254(d)(2). Those legal

conclusions and factual findings, which Smith has not shown to

have been incorrect or unreasonable in any respect, preclude his

invalid waiver theory.2

Parenthetically, with respect to Smith’s ineffective

assistance claim, the court notes that even if Smith had shown

that trial counsel’s advice was incorrect and amounted to

ineffective assistance and if he further demonstrated that the

SJC’s resolution of his claim was based upon an unreasonable

application of the first part of the Strickland test, his claim

would still fail, because he has not shown any prejudice resulting

from counsel’s allegedly incorrect advice. See generally

Strickland, 466 U.S. at 694. Specifically, Smith has not shown

(nor, given the record evidence, could he show) that, had he

2 As the district court noted, Smith’s prior experience in the
criminal justice system is one of the several factors that
undermine his asserted misunderstanding of trial counsel’s advice
about waiving the right to testify and/or his appellate rights.
See, e.g., Parke v. Raley, 506 U.S. 20, 37 (1992) (“A defendant’s
prior experience with the criminal justice system [is] relevant to
the question of whether he knowingly waived constitutional
rights.”). Additionally, the district court noted that Smith has
pled guilty to other charges on at least one occasion in the past,
thereby demonstrating a familiarity with the process of waiving
constitutional rights.

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testified, there is a reasonable probability that the outcome of

his trial would have been different.

As the SJC discussed in detail, in order to credit

Smith’s version of events regarding the armed home invasion, the

jury would have had to “disbelieve the testimony of two percipient

witnesses, Higgs and Stark, whose testimony suggested a violent

entrance to the apartment.” It would also have had to disbelieve

the testimony of Smith’s acquaintances, to whom he had confessed

that, upon entering Higgs’ apartment, he held a gun to her head.

Additionally, to accept Smith’s claim that he acted in self-

defense, the jury would have had to be persuaded that: Smith

entered the apartment peacefully and posed no apparent threat to

anyone, yet the victim approached him, drew a firearm, and

threatened him with it; although Smith’s weapon was not drawn, he

was able to access it and fire two shots in self-defense before

the victim could respond; and, there was a plausible explanation

for the fact that, despite Smith’s claim of rapid defensive

shooting, the two bullets from his firearm entered the victim’s

body at very different angles and from different directions

(evidence that, according to the medical examiner, supported the

Commonwealth’s theory that the second, fatal shot was fired while

the victim was lying face-down on the floor). Both the trial

court and the SJC concluded that Smith’s proposed version of the

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events in question was simply not credible —— a conclusion shared

by Smith’s experienced trial counsel, as expressed in his

affidavit. Finally, had Smith testified at trial, he obviously

would have exposed himself to potential cross-examination and

impeachment concerning his criminal activities in Higgs’

apartment, his prior convictions, and the inconsistent statements

he made to the occupants of the apartment to which he fled (about

why he had killed the victim).

In short, even if Smith had testified and presented his

version of events to the jury, it is not reasonably probable that

the outcome of his trial would have been different. See

Harrington, 562 U.S. at 112. Consequently, even if trial

counsel’s advice were deemed constitutionally deficient, Smith

suffered no resulting prejudice.

B. Burden of Proof with Respect to the Testimonial Waiver

Next, Smith advances a closely related claim of error.

The SJC, he argues, erroneously (and in contravention of Supreme

Court precedent) imposed upon him the burden to demonstrate that

his waiver of the right to testify was invalid. Instead, says

Smith, the SJC should have required the Commonwealth to prove that

he knowingly and intentionally relinquished a known

constitutionally protected right. In Smith’s view, that error

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“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.” 28 U.S.C.

§ 2254(d)(1). We disagree.

First, nothing in the record suggests that the SJC

unreasonably applied the well-established principle that a

criminal defendant’s waiver of his constitutionally protected

right to testify must be both knowing and voluntary. Indeed, the

SJC recognized that the “right to testify on one’s own behalf in

a criminal case is fundamental” and specifically recognized that

any waiver of that right must be both knowing and intelligent.

To be sure, consistent with Massachusetts law, the SJC

did require Smith to bear the burden of demonstrating that his

waiver of the right to testify at trial was not knowing and

voluntary. Smith, 946 N.E.2d at 105 (“When asserting that errors

of counsel deprived him of the right to testify, a defendant has

the burden of proving that his waiver of his right to testify was

invalid.”) (citations and internal punctuation omitted). The SJC

found that Smith failed to carry that burden, and concluded that

his waiver was not invalid. But, with respect to properly

allocating the burden of proof regarding testimonial waivers, “the

Supreme Court has never articulated the standard for assessing

whether a criminal defendant has validly waived his right to

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testify or determined who has the burden of production and proof

under particular circumstances.” Jenkins v. Bergeron, 824 F.3d

148, 153 (1st Cir. 2016) (citing Thompson v. Battaglia, 458 F.3d

614, 619 (7th Cir. 2006)). If federal law is not clearly

established by the Supreme Court, “then per force the state court

decision cannot be either contrary to or an unreasonable

application of clearly established federal law.” Jenkins, 824

F.3d at 153 (quoting Likely v. Ruane, 642 F.3d 99, 102 (1st Cir.

2011)).

The absence of controlling Supreme Court precedent

establishing which party bears the burden of proof necessarily

dooms Smith’s assertion that the SJC acted contrary to clearly

established federal law when it imposed upon him the obligation to

show that his waiver was invalid.

C. Failure to Support Self-Defense Theory

In his final claim, Smith asserts that trial counsel

provided constitutionally deficient representation by failing to

marshal (and introduce at trial) available evidence that would

have rebutted the armed home invasion charge and supported Smith’s

claim of self-defense. He argues that the SJC’s resolution of

that claim on appeal was contrary to, or involved an unreasonable

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application of, the standards set out in Strickland. That claim

also fails.

In support of his claim, Smith first takes issue with

the SJC’s statement of facts relevant to his convictions. Then,

he paints a picture of the events in question that is supportive

of his theory of the case —— that he entered Higgs’ apartment

peacefully and at her invitation, and that he shot the victim in

self-defense. Finally, he attempts to persuade the court that

trial counsel was ineffective for failing to introduce evidence

tending to prove that account. We are not persuaded.

As outlined above, the evidence presented at trial

overwhelmingly supported the jury’s guilty verdict on the charge

of first-degree murder. In rejecting Smith’s claim that trial

counsel was ineffective by failing to present evidence supportive

of Smith’s alternate theory of the case, the trial court found

that Smith’s self-defense theory was unpersuasive and rested

largely on an entirely speculative opinion of a ballistics expert

who lacked both the knowledge and the qualifications to testify

about the matters upon which Smith relies. The SJC agreed, noting

that in light of the evidence presented at trial, Smith’s theory

of the case was not credible and the risks associated with his

testifying at trial were substantial.

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 Smith has not overcome the presumption of correctness

afforded to the state court’s factual findings, nor has he

demonstrated that those factual findings were, in light of the

evidence presented at trial, unreasonable. See 28 U.S.C.

§ 2254(d)(2). Consequently, he cannot show that trial counsel

provided constitutionally deficient representation by either

failing to call Smith to testify in his own defense or by

neglecting to present other unidentified evidence supportive of

Smith’s version of the events —— quintessentially strategic

decisions by counsel, that were supported by the record evidence

and to which substantial deference is afforded. See Strickland,

466 U.S. at 689 (admonishing lower courts to afford trial counsel

“wide latitude . . . in making tactical decisions.”). See also

Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (“[T]his court

has held that a lawyer’s performance is deficient under Strickland

only where, given the facts known at the time, counsel’s choice

was so patently unreasonable that no competent attorney would have

made it.”) (citation and internal punctuation omitted).

Because Smith has not, and cannot, show that the SJC’s

resolution of his second ineffective assistance claim was contrary

to, or involved an unreasonable application of, the Strickland

standard, the district court properly rejected it.

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 Conclusion

For the foregoing reasons, Petitioner has failed to

sustain his burden under 28 U.S.C. § 2254(d) as to any of the

claims advanced on appeal. The judgment of the district court

denying the petition for habeas corpus relief is affirmed.

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