Lucien v. Spencer

United States Court of Appeals
For the First Circuit

No. 15-2153

JAMES LUCIEN,

Petitioner, Appellant,

v.

LUIS SPENCER,

Respondent, Appellee.

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

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

Susan Church, with whom Demissie & Church was on brief, for
appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Maura Healey, Attorney General of Massachusetts, was on
brief, for appellee.

September 15, 2017
 KAYATTA, Circuit Judge. In November 1995, a

Massachusetts jury convicted James Lucien of first-degree murder,

two counts of armed robbery, and one count of unlawful possession

of a firearm. Lucien was sentenced to life in prison, whereupon

he sought direct and collateral review in the Supreme Judicial

Court of Massachusetts (SJC). When the majority of his state

challenges were rebuffed, see Commonwealth v. Lucien (Lucien I),

801 N.E.2d 247, 251 (Mass. 2004), Lucien petitioned the federal

district court for the District of Massachusetts for a writ of

habeas corpus, arguing that the trial court improperly handled the

admission of a plea agreement made by a government witness, that

the district court's jury instructions omitted an element of the

murder offense, and that trial counsel was constitutionally

ineffective. The district court denied Lucien's petition. See

Lucien v. Spencer (Lucien II), No. 07-11338-MLW, 2015 WL 5824726,

at *35 (D. Mass. Sept. 30, 2015). Lucien now appeals. For the

reasons that follow, we affirm.

I. Background

Lucien's conviction followed a five-day trial in which

evidence was introduced to show that Lucien and a man named Jamal

Butler agreed to rob Alfred Clarke and his brother Ryan Edwards,

whom Lucien and Butler knew to be a drug dealer. The Commonwealth

presented evidence that Butler arranged a drug deal through Clarke.

The arrangement eventually led to Lucien riding in the backseat of

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Edwards's two-door sedan while Edwards drove and Clarke sat in the

front passenger seat. Lucien drew a firearm and ordered Clarke to

hand over his money, a pager, and a bracelet he was wearing. He

then ordered Clarke out of the car. After the car pulled away and

turned a corner, Edwards was shot in the lower-right torso. The

bullet, apparently fired from a .25 caliber automatic weapon,

killed him. A .25 caliber shell casing was later found in the

vehicle, but the murder weapon was never found. Butler testified

that when he reconvened with Lucien the following day, the men

split the loot and Lucien admitted he had shot Edwards.

The prosecution's principal theory of the case was that

Lucien committed an armed robbery and killed Edwards in the

process. In support of this theory, the prosecution presented the

testimony of a medical examiner who opined that, given the angle

of the bullet's entry into Edwards's body, the shot could have

been fired from the backseat of his vehicle. Clarke testified

that Lucien claimed to be interested in purchasing cocaine from

Edwards but then drew a gun to commit a robbery once Edwards began

driving. He testified that he handed over his money, pager, and

bracelet as his brother pulled over; he exited as the car began to

drive away; and he saw a flash within the vehicle and heard a

gunshot. Butler, who pled guilty to unarmed robbery, testified

that he and Lucien met before the robbery at Butler's girlfriend's

home to forge a plan to rob Edwards in a staged drug deal; that

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Butler set up the deal because he knew Edwards; that Butler made

first contact and arranged to meet Edwards and Clarke in Edwards's

car in a parking lot; that Lucien and Butler drove to the parking

lot together; that Butler watched Lucien get in the back of

Edwards's and Clarke's car before it drove away; and that when

Lucien came over the next day to split the spoils, he reported he

shot Edwards "to make it look good."

Lucien (through counsel) seized on the fact that Clarke

also admitted that he, too, had a firearm on his person during the

robbery. Lucien's defense theory was that Clarke fired the fatal

bullet after he got out of the car (presumably trying to hit

Lucien). Providing some support for this defense, one officer who

responded to the scene testified to Edwards's dying declaration

that he was shot by someone outside the car (rather than, as Clarke

testified, by Lucien inside the car), and another officer testified

to hearing two gunshots. There were also some inconsistencies in

Clarke's and Butler's testimonies, and each had incentive to lie

at Lucien's expense--Butler to secure a plea deal, and Clarke to

shift blame for a shooting he himself arguably perpetrated. On

the other hand, there was the shell casing found in the car, and

the Commonwealth's ballistician testified that Edwards was likely

shot from close range (although that testimony could not be

confirmed because Edwards's clothes were lost at the hospital and

no soot or powder was found on Edwards's body).

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 The jury sided with the Commonwealth, and the state trial

court sentenced Lucien to life in prison on the first-degree murder

charge, a concurrent four-to-five-year term on the illegal firearm

charge, and concurrent eighteen-to-twenty-year terms for the two

armed robbery charges. He timely appealed, arguing, among other

things, that the trial court's jury instructions were flawed

because they did not "instruct the jury that they could not

consider Butler's guilty plea as evidence against the defendant."

Lucien I, 801 N.E.2d at 255. He also took issue with the felony-

murder instructions, arguing that they did not comply with

Massachusetts law because they allowed the jury to convict Lucien

of murder even if Clarke fired the fatal shot. Id. at 256.

In addition to his direct appeal, Lucien filed a motion

for a new trial before the SJC pursuant to Massachusetts General

Laws chapter 278, section 33E. The new-trial motion asserted that

Lucien's trial counsel was ineffective for two reasons. First, he

allegedly gave "faulty advice about the Commonwealth's ability to

impeach [Lucien], if he testified, and that [his] waiver of his

right to testify was thus not knowing and voluntary." Id. Second,

trial counsel did not call two experts, a pathologist and a

ballistician, both of whom were retained before trial. Lucien

claimed those experts would have undermined the Commonwealth's

evidence by opining that Edwards was likely shot from farther away

than the backseat of his vehicle. Lucien also argued that one of

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his armed robbery convictions was duplicative of his felony-murder

conviction, and that the SJC should exercise its discretionary

power to relieve him from the verdict or grant him a new trial.

See Mass. Gen. Laws ch. 278, § 33E. The SJC remitted the motion

to the trial judge, the motion was denied, and Lucien appealed.1

The SJC consolidated Lucien's direct and collateral

appeals and then denied relief on all but Lucien's duplicity

challenge, vacating his conviction for the armed robbery of Edwards

because it was duplicative of the first-degree murder conviction.

(Lucien was convicted on a felony-murder theory, so the armed

robbery was an element of the murder offense.) See Lucien I, 801

N.E.2d at 251, 260. Lucien filed a second motion for a new trial

a few months later in the trial court, reasserting his ineffective

assistance claims concerning his right to testify and trial

counsel's refusal to call the pathologist and the ballistician,

1 The procedural history is actually a bit more complex:
Lucien filed a pro se motion for a new trial in the trial court in
1996. With the assistance of counsel, he submitted an amended
motion to the SJC (the proper body to consider a new-trial motion,
see Mass. Gen. Law ch. 278, § 33E) in 1997. The motion, which
appears to have concerned whether trial counsel was ineffective
for failing to provide Lucien all the information he would need in
order to knowingly waive his right to testify and whether the armed
robbery conviction was duplicative of the felony-murder
conviction, was remitted to the trial judge and denied. Lucien
appealed that decision and moved for reconsideration, adding the
ineffectiveness claims based on his attorney's refusal to call the
ballistician and the pathologist. The motion was again denied.
In any event, respondent makes no contention that Lucien failed to
raise in his original new-trial motion the two ineffective-
assistance claims described here.

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and adding ineffective assistance claims based on trial counsel's

alleged mishandling of a suppression motion and counsel's

"fail[ure] to object to the lack of appropriate instructions to

[the] jury on [the] limited purpose for which [a] co-defendant's

guilty plea could be used." He also asserted that he received

unconstitutionally substandard assistance of appellate counsel in

failing to raise on appeal the ineffective assistance of trial

counsel. The trial court denied the motion, and a single justice

of the SJC denied leave to appeal. See Mass. Gen. Laws ch. 278,

§ 33E.

A petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 timely followed in the District of Massachusetts. The

district court denied Lucien's petition, see Lucien II, 2017 WL

5824726, at *35, and this timely appeal ensued.

II. Discussion

We review a district court's denial of a petition for

habeas corpus de novo. See Moore v. Dickhaut, 842 F.3d 97, 99

(1st Cir. 2016) (citing Teti v. Bender, 507 F.3d 50, 56 (1st Cir.

2007)). Like the district court, however, we are required to

afford significant deference to the state court's decision under

most circumstances. See Scoggins v. Hall, 765 F.3d 53, 57 (1st

Cir. 2014). Unless a state court "does not address the merits of

a federal claim," see Jenkins v. Bergeron, 824 F.3d 148, 152 (1st

Cir. 2016) (quoting Zuluaga v. Spencer, 585 F.3d 27, 30 (1st Cir.

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2009)), the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) permits us to grant a habeas petition in only two

circumstances: (1) if the SJC's decision "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); or (2) the decision on the federal

claim was "based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,"

id. § 2254(d)(2). The petitioner must also show that the state

court's error had a "substantial and injurious effect" on the

jury's verdict. See Fry v. Pliler, 551 U.S. 112, 121–22 (2007)

(citing Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).

Lucien advances four claims on appeal. We assess each

of these challenges in turn.

A. Butler's guilty plea

Lucien's first argument concerns the entry of Butler's

plea agreement into evidence, and the judge's instructions about

the role it could play in the jury's verdict. As Butler's direct

examination was drawing to a close, the trial court allowed the

Commonwealth to read Butler's plea agreement into evidence, and to

elicit Butler's comment on it. Lucien's counsel objected, saying,

"there is case law that creates certain obligations with respect

to agreements of this type. I think, you know, just to protect

the record, I'm going to object to the agreement, all right?"

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Citing Commonwealth v. Ciampa, 547 N.E.2d 314 (Mass. 1989), counsel

requested that the court instruct the jury not to inappropriately

rely upon Butler's plea agreement.

In response, the trial judge admonished the jury--twice,

and in no uncertain terms--that the government had "no way of

knowing whether or not a witness is telling the truth," and that

the plea agreement's indication that Butler was obligated to

honestly testify did not so signify.2 Lucien's counsel did not

2 At the time the plea agreement was entered into evidence,
the trial judge told the jury:

Ladies and gentlemen, the Exhibit that
has been marked number 8, evidently is set up
by the evidence as some sort of agreement
between the attorney on behalf of Mr. Jamal
Butler and the Commonwealth of Massachusetts,
through the [prosecutor] who's trying this
case. In here it indicates that the
obligation of Mr. Butler is to tell the truth
completely to all the questions before a Grand
Jury and any trial. I just want to say this,
folks, that the Commonwealth has no way of
knowing whether or not a witness is telling
the truth or not. And they cannot vouch for
that truth. That is totally and completely up
to our Jury, which Jury that's your function.
Only you can determine, the Commonwealth
cannot vouch for it. It's totally and
completely up for your determination and
judgment based on all the evidence and what
you've heard here, folks.

. . . .

. . . Just keep in mind that it's not the
Commonwealth's duty to determine who's telling
the truth, namely the District Attorney, but

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renew his objection or otherwise indicate to the trial judge that

this instruction failed to address his concern.

In closing argument, the prosecutor suggested to the

jury that Butler should be believed because "he pled guilty and he

agreed to cooperate," saying, "[I]f you think that Jamal Butler

took the stand and he wasn't involved in any robbery with this man

and he's just decided to spend five years, the next five years, of

his life in jail for this, I suggest that's the best motive for

him to be truthful." Lucien did not object. After closing

arguments, the trial judge instructed the jury, "The fact that

[Butler] testified pursuant to [a plea] agreement[] should cause

you to examine his testimony with extra care and caution. The

fact that the Commonwealth has entered into an agreement with the

witness does nothing to change the fact of the determination of

the witness's truthfulness." The judge also instructed the jury

that "the requirement in the agreement that the witness testif[y]

truthfully [does not] mean that the government has a way of knowing

that the witness is telling the truth."3 Again, Lucien's counsel

totally and completely you, the Jury here in
Suffolk County, folks.

3 The judge's instruction, in full, was as follows:

There has been evidence in this case that one
of the Commonwealth's witnesses entered into
what is known as an agreement with the
Commonwealth. The agreement has been entered
into evidence as an exhibit. The fact that

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did not object or indicate that this instruction was not the one

he was looking for.

On appeal to the SJC, Lucien argued that the jury

instructions were improper because the trial judge did not

"instruct the jury that they could not consider Butler's guilty

plea as evidence against the defendant." Lucien I, 801 N.E.2d at

255. As a result, claimed Lucien, the trial court violated

Lucien's "fundamental rights" because it allowed the jury to decide

against him based on hearsay evidence not "presented in open

court."

The procedural status of this claim that the jury

instruction failed to deal properly with Butler's plea agreement

this witness testified pursuant to such an
agreement[] should cause you to examine his
testimony with extra care and caution. The
fact that the Commonwealth has entered into an
agreement with the witness does nothing to
change the fact of the determination of the
witness's truthfulness. It's solely a
question for you the jury. Nor does the
requirement in the agreement that the witness
testified truthfully mean that the government
has a way of knowing that the witness is
telling the truth.

You should consider the motivation of the
witness in testifying and what rewards or
inducements or benefits are flowing to that
witness as a consequence of that witness's
testimony and if any [of] those promises in
any way affect the credibility of this
particular witness.

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is quite complicated. The SJC found that Lucien's trial counsel

never objected to the instructions on the grounds now being

asserted. See id. Normally such a finding would constitute

independent and adequate state-law grounds for the judgment that

would effectively preclude our direct review of the forfeited

argument, absent certain special circumstances. See Barbosa v.

Mitchell, 812 F.3d 62, 67 (1st Cir. 2016) (explaining that

procedural default is an independent and adequate state-law ground

for a decision, and may only be forgiven if petitioner shows cause

for and prejudice from the default). Here, though, in deciding

not to consider Lucien's argument on the merits, the SJC relied on

an assertion that "there was no evidence that Butler had pleaded

guilty." Lucien I, 801 N.E.2d at 255. This was plainly wrong.

Not only was there evidence that Butler pleaded guilty, the plea

agreement itself was read into evidence and was the subject of

inquiry and comment. Adding yet another twist is the indirect

manner in which Lucien now seeks to get at this whole issue. He

alleges that his trial counsel was ineffective in failing to raise

an apt objection to the instructions, and that his appellate

counsel was ineffective in failing to pursue an argument that trial

counsel was ineffective.

The parties' briefs each debate in a discursive manner

the ramifications of these complexities. Lucien seems to want us

to rely on the SJC's factual error as a basis for conducting de

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novo review of everything, even the state-law issue of whether

trial counsel raised an apt objection. The Commonwealth, in turn,

seems to argue that we need not address Lucien's argument because

he procedurally defaulted his claim--i.e., his claim was

adjudicated on independent and adequate state-law grounds--and the

default is inexcusable because Lucien's counsel was not

ineffective and "there was no error in the jury instruction." Of

course this last point--the claim that the jury instructions were

fine--invites us to conduct de novo review of the unobjected-to

jury instruction, and thereby adjudicate a question of state law.

Rather than unravelling this skein, we give Lucien

several assumed benefits of the doubt and focus on whether the

instruction, even if a trial error, "had substantial and injurious

effect or influence in determining the jury's verdict." Brecht,

507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)); see Connolly v. Roden, 752 F.3d 505, 511 (1st Cir.

2014). If it did not, then habeas relief is foreclosed. See Davis

v. Ayala, 135 S. Ct. 2187, 2199 (2015).

This was a case in which Butler testified in person. He

described what Lucien did, and he admitted that he participated in

planning the robbery of Edwards and Clarke. To the extent that

the making of a deal implied Butler was getting something for his

testimony, that implication cut in Lucien's favor. In this

context, the agreement might plausibly have cut against Lucien

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only if the jury were permitted to infer from it that the

prosecutors knew Butler to be telling the truth or were otherwise

vouching for him. See United States v. Wihbey, 75 F.3d 761, 772

(1st Cir. 1996). This potential prejudice, though, was well

covered by the instructions as given.

Lucien points to no other possible prejudice beyond

baldly asserting that the plea agreement "shift[ed] the burden of

proof." How that is so, Lucien does not explain. The only cases

to which Lucien points involve the very different situation in

which the prosecution puts into evidence the guilty pleas of non-

testifying co-conspirators. See, e.g., United States v. Ofray-

Campos, 534 F.3d 1, 23 (1st Cir. 2008) ("[W]here a missing co-

defendant does not testify, 'it is generally accepted that absent

agreement, courts and prosecutors generally are forbidden from

mentioning that a co-defendant has either pled guilty or been

convicted.'" (quoting United States v. Carraway, 108 F.3d 745, 756

(7th Cir. 1997))); United States v. Blevins, 960 F.2d 1252, 1260

(4th Cir. 1992) ("Courts have generally agreed that evidence of a

non-testifying co-defendant's guilty plea should not be put before

the jury."). Such agreements by non-testifying co-conspirators

have little apparent relevance, other than suggesting guilt by

association, without any opportunity for cross-examination. Here,

Butler's relevant testimony concerned precisely his relevant

association with Lucien, and Butler was subject to cross-

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examination, which itself could point to the agreement as a motive

to lie. Moreover, this was not a case in which A and B are accused

of doing X together, where X is the pivotal act upon which

conviction hinges, and B then pleads guilty to X, creating a

potential for the prosecution to suggest that B's plea must mean

A did it too. See, e.g., United States v. Dworken, 855 F.2d 12,

30–32 (1st Cir. 1988). Here, the pivotal issue was whether Lucien

shot Edwards, and Butler did not plead guilty to conspiring with

Lucien to do that. Nor, finally, did the prosecutor suggest to

the jury that it should view the plea agreement itself as evidence

that Lucien shot Edwards.

Having been pointed to no other possible prejudice, we

therefore comfortably find that even were it somehow proper to

review the jury instructions de novo and find them to be in error,

the error would not have caused the type of prejudice that would

warrant habeas relief.

B. Felony-murder instruction

Lucien's next claim is that his due process rights were

violated when the trial court gave an erroneous instruction on the

elements of felony murder under Massachusetts law. The challenged

instructions read as follows:

The statue [sic] defining murder allows you to
find the defendant guilty of first degree
murder if you find the Commonwealth has proven
beyond a reasonable doubt that the defendant
unlawfully killed the victim in the commission

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 of or attempted commission of a crime,
punishable by principle of law. This
principle of law is known as the felony murder
rule.

The effect of the felony murder rule is
to substitute the intent to commit the
underlying felony for the malice aforethought
as defined earlier required for murder. In
order to find the defendant guilty of first
degree murder under the felony murder rule,
the Commonwealth must prove the following
three elements beyond a reasonable doubt.
One, that there was an unlawful killing, two,
that the killing was committed while the
defendant was in the course of committing or
attempting to commit a felony punishable by
imprisonment for life, and three, that under
the circumstances of this case, the defendant
committed or attempted to commit the felony
with the conscious disregard for human life.

Lucien contends, as he did before the SJC, that felony

murder under Massachusetts law requires the Commonwealth to prove

beyond a reasonable doubt that the defendant or a joint venturer

proximately caused the death of the deceased victim, see, e.g.,

Commonwealth v. Tejeda, 41 N.E.3d 721, 724–25 (Mass. 2015), and

that the instructions given in this case permitted the jury to

convict even if they found that Clarke (or someone else other than

a joint venturer) committed the killing. In so arguing, Lucien

concedes that one line of the instructions given did, in the words

of his appellate brief, "require[] the jury to find the defendant

to have killed the victim." He argues, however, that other

portions of the instructions--namely, instructions passively

stating that the jury needed to find "that there was an unlawful

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killing"--undermined that instruction and rendered it

unconstitutional under In re Winship. 397 U.S. 358, 360–61 (1970).

The SJC construed the instructions otherwise, concluding

that the trial court "instructed the jury that the Commonwealth

must prove that [Lucien] actually killed Edwards." Lucien I, 801

N.E.2d at 257. As so construed, this instruction was actually

better than Lucien deserved under Massachusetts felony murder law.

See id. (noting that "[t]he defendant received an instruction more

favorable than he was entitled to receive"). It is true that the

instructions did not reiterate this requirement in subsequently

discussing the meaning of "unlawful killing." That subsequent

discussion, however, can most easily be read as merely specifying

the other elements of the offense, all of which were predicated on

the instructions' initial requirement that the jury find the

defendant to have killed the victim. Out of context, the fact

that the requirement was not repeated in the subsequent

instructions might have led jurors to conclude that they need not

find that Lucien shot Edwards. In context, though, there was

little such risk. The Commonwealth never argued that Lucien was

still guilty if Clarke fired the shot. Rather, the prosecution

trained its evidence and argument on the contention that Lucien--

not Clarke--fired the fatal shot.

Of course, in this habeas proceeding we do not sit as

the final arbiter of Massachusetts law. "[T]he fact that [an]

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instruction was allegedly incorrect under state law is not a basis

for habeas relief. . . . The only question for us is 'whether the

ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process.'" Estelle v. McGuire,

502 U.S. 62, 71–72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141,

147 (1973)). An instruction will be found to corrupt a conviction

where, "in the context of the instructions as a whole and the trial

record," the instruction violates "fundamental fairness" by

creating a "'reasonable likelihood that the jury has applied the

challenged instruction in a way' that violates the Constitution."

Id. at 72–73 (quoting Dowling v. United States, 493 U.S. 342, 352

(1990), and Boyde v. California, 494 U.S. 370, 380 (1990)). For

the reasons stated above, it was not an "unreasonable application"

of due process law for the SJC to find no such likelihood here.

Accordingly, we reject Lucien's challenge to the constitutionality

of the felony-murder instruction.

C. Waiver of right to testify

Toward the end of Lucien's trial, his counsel and the

prosecutor went to sidebar with the judge. They discussed a number

of matters, including the prosecutor's intention, which he had

already communicated to Lucien's attorney, not to introduce

Lucien's past convictions as a means of impeaching him should he

choose to testify. After the sidebar conversation concluded,

Lucien's attorney returned to the defense table and visibly

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conferred with his client. When Lucien and his counsel came back

to sidebar, the judge informed him of his right to testify. Lucien

replied, "I wish not to testify." According to an affidavit

submitted by trial counsel and included in the state court record

on appeal, counsel had previously encouraged Lucien not to testify.

The affidavit is silent as to whether or not, during their

conversation immediately preceding Lucien's visit to sidebar,

counsel informed Lucien that the prosecution would not seek to

introduce his convictions if he testified.

Lucien presented two arguments to the SJC on this matter.

First, he argued that when he waived his right to testify, he did

so without knowledge of the Commonwealth's concession that it would

not impeach him with his past convictions if he testified, and he

therefore waived his right to testify unknowingly and

involuntarily. Lucien I, 801 N.E.2d at 258–59. Second, he argued

that counsel rendered ineffective assistance by neglecting to

advise him of all the facts necessary to make a knowing waiver.

Id. As evidence supporting both arguments, Lucien pointed to his

trial attorney's efforts to dissuade him from testifying, his trial

attorney's affidavit stating that counsel consistently advised him

not to testify, and Lucien's own affidavit attesting to never

knowing the prosecution had represented it would not bring up his

past crimes. He complained that he could not have made an informed

decision about waiving his right to testify without knowing that

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the jury would not learn of his prior criminal conduct, which he

believed would come out if he took the stand.

The SJC rejected both of Lucien's arguments, finding

that Lucien was, in fact, aware of the prosecution's intentions.

It explained that under Massachusetts law, Lucien was required to

demonstrate "by a preponderance of the evidence, that, but for his

counsel's erroneous advice," Lucien "would have testified in his

own defense," id. at 258 (quoting Commonwealth v. Freeman, 564

N.E.2d 11, 15 (Mass. App. Ct. 1990)), and "[i]t is not enough to

say that counsel had discouraged him from testifying," id. at 259

(citing Commonwealth v. Cook, 784 N.E.2d 608, 616 (Mass. 2003)).

Lucien failed to make that showing, said the SJC, because the only

evidence he presented was his own sworn statements that he was not

properly advised, and that evidence paled in comparison to the

trial judge's observation that, after sidebar, defense counsel

spoke at length with Lucien at counsel's table immediately before

Lucien approached and verbally waived his right to testify. Id.

The SJC found that "[t]he judge was entitled to reject summarily

any claim supported only by the defendant's self-serving

affidavits, and infer from his own observation of the defendant

and counsel at trial that they were conferring over precisely the

matter the defendant now claims was never discussed." Id. Because

the SJC addressed Lucien's constitutional arguments on the merits,

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we afford the SJC's decision AEDPA deference. See Jenkins, 824

F.3d at 152.

Lucien contends that clear and convincing evidence shows

that the state court made its decision based on an unreasonable

determination of the facts, and that we should therefore grant

relief under 28 U.S.C. § 2254(d)(2).4 He repeats to us the

arguments he made to the SJC and the district court: his attorney

sent numerous letters urging him not to testify; his attorney's

affidavit demonstrates that counsel strongly advised him not to

testify; those urgings were clearly motivated by the judge's

decision not to prohibit the prosecution from introducing his

convictions; and if he had known that those convictions were not

going to be presented to the jury, he would have made a different

choice.

4 As this court has noted on more than one occasion, the
courts of appeal have come to different conclusions concerning
whether and to what extent the requirement in § 2254(e)(1) that a
state court's factual findings are presumed correct unless
rebutted by "clear and convincing evidence" differs from
Congress's directive in § 2254(d)(2) that we may overturn a state
court's decision on factual grounds only if its findings were
"unreasonable." See Smith v. Dickhaut, 836 F.3d 97, 101 (1st Cir.
2016) (citing John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009), and
Teti, 507 F.3d at 58–59). As in past cases, we need not confront
this issue in the present case: Lucien himself argues that he
"must prove by clear and convincing evidence that the state court's
factual findings were incorrect with respect to this issue." In
any event, as in Smith, "even if we were to assess the state
court's factual determinations under the [arguably] more
petitioner-friendly standard set out in § 2254(d)(2), rather than
the more deferential standard in [§ 2254(e)(1)], [Lucien] would
still not be entitled to the relief he seeks." Id.

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 Certainly, the evidence presented could be construed to

support Lucien's account of what happened. The evidence in the

record clearly shows that Lucien's trial counsel strongly

encouraged him not to testify, and that Lucien persistently voiced

his interest in doing so anyway. It also shows that one reason

counsel initially discouraged Lucien from testifying was that

counsel feared Lucien's past crimes would be presented to the jury

as a means of impeaching Lucien if he took the stand, and that

this particular concern was ameliorated when the prosecution

decided it would not do so. But, as the SJC reasonably observed,

Lucien and his attorney actively and repeatedly discussed, on

numerous occasions, the possible benefits and detriments of

testifying, and counsel advised Lucien that doing so was risky.

Furthermore, like Conan Doyle's dog that did not bark, trial

counsel's affidavit is conspicuous in its failure to support

Lucien's claim that counsel did not tell Lucien of the government's

concession at sidebar, despite counsel's willingness to admit

fault in other areas of his representation of Lucien. And Lucien

does not dispute the trial court's observation that immediately

after the government informed the court of its concession, and

immediately before Lucien waived his right to testify, Lucien and

his trial counsel had a lengthy discussion at counsel's table.

As was the case in Companonio v. O'Brien, "we cannot

decide in the petitioner's favor unless we supplant the SJC's

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reasoning by adopting his view of arguably conflicting evidence.

But '[w]here the record evidence can be interpreted to support a

different version, the case here, we must reject such a request.'"

672 F.3d 101, 111 (1st Cir. 2012) (quoting John v. Russo, 561 F.3d

88, 95 (1st Cir. 2009)). For the foregoing reasons, this is just

such a case, and Lucien's challenge on this issue fails.

D. Counsel's decision not to call experts

Lucien's trial counsel retained two expert witnesses to

testify on Lucien's behalf at trial. According to an affidavit

included in the state court record, ballistician Carl Majeskey was

prepared to opine on the likely location of Edwards's shooter.

According to another affidavit included in the state court record,

pathologist Edward Sussman was prepared to opine on how far away

Edwards's shooter was when the shot was fired, based on the wound

Edwards sustained. Neither witness was in fact called to testify.

On state collateral review, Lucien tendered an affidavit from trial

counsel stating that counsel decided not to call Sussman and

Majeskey "not based alone on James Lucien's best interest," but

also that there was "a political component in [his] decision to

not call them." He explained that "[t]hese experts were upset due

to the fact that the trial was to begin on the day after

Thanksgiving and they had planned vacations during that time. Part

of the reason for not asking these witnesses to testify was not

wanting to anger them." Lucien argued to the SJC that this

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amounted to ineffective assistance of trial counsel, because

counsel did not have Lucien's best interest in mind, and the jury

would likely have acquitted had they heard from Majeskey and

Sussman.

In Lucien I, the SJC rejected Lucien's claim, finding

that Lucien did not receive ineffective assistance under

Commonwealth v. Wright, 584 N.E.2d 621 (Mass. 1992), and

Commonwealth v. Adams, 375 N.E.2d 681 (Mass. 1978). See Lucien I,

801 N.E.2d at 257–58. It found that even though other tactical

reasons were not given, counsel's affidavit implied that he had

some, and that they were based on Lucien's best interest. Id. at

258. Additionally, tactical reasons not to call the witnesses

were readily discernable. Id. The SJC noted that the subjects on

which Majeskey claimed he could opine were "beyond his field of

expertise," particularly concerning "the feasibility of firing a

gun from different locations inside and outside the car, matters

for which the jury needed no expert to assist them," so it would

make strategic sense not to call him to testify. Id. It also

found that Sussman's affidavit suggested he would have given

testimony that would not have lent meaningful support to Lucien's

defense and could have bolstered or at least been consistent with

the Commonwealth's pathologist's testimony, making the decision

not to call him similarly sound strategy. Id.

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 Lucien reasserts his ineffective-assistance claim in his

petition for a writ of habeas corpus, arguing that the SJC

unreasonably applied the law and made unreasonable findings of

fact in light of the record evidence when it determined that

counsel was not ineffective. Under federal law, Lucien can show

ineffective assistance only if he satisfies the two-part test

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

showing "that counsel's performance fell below an objective

threshold of reasonable care and that counsel's deficient

performance prejudiced him." Smith v. Dickhaut, 836 F.3d 97, 103

(1st Cir. 2016) (citing Strickland, 466 U.S. at 687, and Turner v.

United States, 699 F.3d 578, 584 (1st Cir. 2012)). In measuring

the quality of counsel's performance, "the reasonableness of

counsel's tactical or strategic choices" is evaluated with "a heavy

measure of deference to counsel's judgments." Castillo v.

Matesanz, 348 F.3d 1, 14 (1st Cir. 2003) (quoting Strickland, 466

U.S. at 691). Because the standard employed by the SJC in

assessing Lucien's ineffective-assistance claim on this issue "is

'at least as protective of the defendant's rights as its federal

counterpart,' we may defer under section 2254(d)(1) to its

determination." Kirwan v. Spencer, 631 F.3d 582, 590 n.3 (1st

Cir. 2011) (quoting Foxworth v. St. Amand, 570 F.3d 414, 426 (1st

Cir. 2009), and citing Wright, 584 N.E.2d at 624); see Castillo,

348 F.3d at 13 (citing Adams, 375 N.E.2d at 685). In short, Lucien

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has the heavy burden of not just arguing that there was a

Strickland violation, but that no reasonable jurist could conclude

otherwise, at least without relying on an unreasonable view of the

facts.

Lucien argues that the SJC made four unreasonable

findings of fact. First, he contends that the evidence does not

support the SJC's finding that trial counsel acted to advance more

than just personal political motivations, arguing that the SJC's

decision used "vague" language and "never specified what [the SJC]

believed [] those 'other' motivations might be." But the SJC's

finding is crystal clear: It found that trial counsel likely felt

there were strategic reasons not to call Sussman and Majeskey.

See Lucien I, 801 N.E.2d at 258 ("Although counsel did not disclose

any other tactical reason [not to call the experts], his affidavit

makes clear that he had other reasons."). This was a reasonable

way to interpret trial counsel's affidavit, which, by stating that

the decision not to call the experts "was not based alone on James

Lucien's best interest" (emphasis added), implied that the

decision was at least based in part on Lucien's best interest.

Second, Lucien contends that there could have been no

strategic reason not to call Sussman because Sussman was prepared

to testify that Edwards's wound was a "distant gunshot wound,"

and, according to Lucien, distant "could not possibly be

interpreted to mean from the back seat of the car." But Sussman's

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affidavit only asserts that the gunshot wound was "distant" based

on the fact that the autopsy report, pathology report, aerology

report, and ballistics report "indicated that there was no

associated stippling or powder soot in the wound of the deceased,"

not based on some assessment of the approximate distance from which

the fatal shot must have been fired. Nothing in the record

indicates that Sussman was prepared to testify that "distant" meant

anything other than "far enough away that there would be no soot

or stippling in the wound"--testimony that would have been

consistent with testimony given by the Commonwealth's pathologist

that it would be possible for there to be no soot or stippling in

a wound if a victim's clothes caught the soot and stippling, even

if the fatal shot was fired from very close range. Putting on a

defense witness who could only place the origin of the shot outside

the victim's clothes so as to leave no soot or stippling might

well have led the jury to draw a negative inference from such a

meager offering from a defendant-retained expert. Counsel could

have reasonably thought it better to rely on simply cross-examining

the government witnesses.

Third, Lucien argues that Majeskey was just as well

credentialed as the Commonwealth's ballistician, so the SJC made

an unreasonable determination that he was going to testify to

matters beyond his ken. Lucien's argument, however, is misplaced:

The SJC found not that Majeskey was less qualified to testify than

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was the Commonwealth's expert witness, but rather that Majeskey's

training as a ballistician did not qualify him to give expert

testimony on matters for which the jury required no expert opinion,

like whether it was "practical" to fire a weapon from an awkward

angle inside a vehicle. Id. That finding was clearly not

unreasonable.

Finally, Lucien contends that the SJC unreasonably found

that one tactical reason trial counsel likely had for not calling

Majeskey and Sussman was that doing so would be risky, as they

would have offered testimony that would have been consistent with

and cumulative of the testimony of the Commonwealth's pathologist.

Lucien notes that in addition to Sussman being prepared to testify

that Edwards suffered a "distant gunshot wound," Majeskey was

prepared to testify that it was likely that the gun was "fired by

someone reaching across the front passenger seat or up to a foot

or two from the car with the passenger door open, or . . . up to

a foot or two from the opened window of the closed passenger door."

But Majeskey also affirmatively stated in his affidavit that the

Commonwealth's theory that the fatal shot was fired from within

the car was "possible." The SJC was not unreasonable in

determining that counsel may reasonably have concluded that this

testimony would leave counsel with less room to attack the

Commonwealth's experts.

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 We are thus left to determine whether the SJC's

application of federal law to these facts was unreasonable under

28 U.S.C. § 2254(d)(1). It is not contrary to, nor an unreasonable

application of, Supreme Court precedent to reject an ineffective

assistance claim where an attorney made a choice, at least partly

motivated by strategy, not to call witnesses who would not have

positively contributed to (and, indeed, might possibly have

negatively impacted) the defendant's case. See Hensley v. Roden,

755 F.3d 724, 737 (1st Cir. 2014); Phoenix v. Matesanz, 233 F.3d

77, 81–85 (1st Cir. 2000). Even if we were to regard such a choice

as negligent, that would not be nearly enough: Our review of

ineffective assistance claims like this one is "doubly

deferential," requiring Lucien to show that counsel's performance

was objectively unreasonable and that no reasonable jurist could

come to the contrary conclusion the state court drew. See Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009). This claim therefore

fails.

III. Conclusion

For the foregoing reasons, we affirm.

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