United States Court of Appeals
For the First Circuit
No. 04-1488
TABUE SMILEY,
Petitioner, Appellant,
v.
MICHAEL T. MALONEY, Commissioner of the
Massachusetts Department of Corrections,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge.
John M. Thompson, with whom Thompson & Thompson, P.C. was on
brief, for petitioner-appellant.
Maura D. McLaughlin, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, were on
brief, for respondent-appellee.
September 2, 2005
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. A Massachusetts Superior Court
jury convicted Tabue Smiley of first-degree felony murder, illegal
possession of a firearm, kidnaping, and armed assault in connection
with a joint venture to rob a drug dealer which ended with one
person dead and two others wounded. Smiley appeals the district
court's denial of his habeas petition, challenging the first-degree
murder conviction with claims of ineffective assistance of counsel
in the pre-trial proceedings. Since the state court decision
affirming his conviction was neither contrary to, nor an
unreasonable application of, clearly established federal law, 28
U.S.C. § 2254(d)(1), we affirm.
I
On October 31, 1993, Smiley and four other individuals --
Dennis Hardy, Fred Shinholster, Calvashon Johnson, and Shandell
Redd ("defendants") -- decided to rob Oliver Edwards of drugs and
money.1 They went to the apartment of Eric Williams, who sold
drugs for Edwards, under the pretense of buying drugs so that
Williams could page Edwards. Upon Edwards's arrival at Williams's
1
These facts are taken from the Massachusetts Supreme Judicial
Court’s recitation of the facts, Commonwealth v. Smiley, 727 N.E.2d
1182, 1185 (Mass. 2000), which is entitled to a presumption of
correctness under 28 U.S.C. § 2254(e)(1). See, e.g., Coombs v.
Maine, 202 F.3d 14, 18 (1st Cir. 2000); cf. Sumner v. Mata, 449
U.S. 539, 545-47 (1981) (presumption of correctness under former
habeas statute applied to "factual determinations made by state
courts, whether the court be a trial court or appellate court").
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apartment, the defendants held both at gunpoint and forced them to
go to Edwards's apartment.
When they arrived at Edwards's apartment, Hardy confined
Williams in a closet and the defendants forced Edwards onto a
living room couch, along with Edwards's girlfriend, June Johnson,
who was present in the apartment when they arrived. Hardy and
Shinholster then threatened Edwards and Johnson to disclose the
location of drugs and money. Edwards eventually said that there
was cocaine in the basement, after which Smiley and Redd went to
search the basement.
Hardy took Edwards to the basement stairs and shot him,
causing Edwards to fall down the stairs. Hardy returned to the
living room and shot Johnson, despite Smiley's protestations. In
the process, Hardy's pistol jammed, so Hardy took Smiley's pistol
and went to the basement to shoot Edwards two more times. Hardy
also shot Williams twice. Although Williams and Johnson survived,
Edwards died from his wounds.
Before Hardy finished his shooting rampage, Smiley,
Shinholster, and Johnson ran out of the apartment. They then met
with Hardy and Redd at Rasheem Reid's house. At Hardy's request,
Shinholster hid the semiautomatic gun in a cemetery behind Reid's
house.
A few days later, Shinholster turned himself in and led
the police to the cemetery where he hid the gun. Shinholster
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eventually testified against Smiley. On November 3, 2003, Smiley's
mother engaged the services of Attorney Elton Williams to
facilitate Smiley's surrender. After consulting with Attorney
Williams, Smiley gave a detailed statement to the police regarding
the incident. Williams served as Smiley's counsel for
approximately four more weeks, after which he was replaced by
appointed counsel.
A Hampden County grand jury indicted Smiley for the
murder of Edwards, illegal possession of a firearm, the kidnaping
of Williams and Johnson, and armed assault in a dwelling. Prior to
trial, Smiley moved to suppress his police statement on the basis
of ineffective assistance by Attorney Williams. The trial judge
denied the motion, finding that "Mr. Williams advised the defendant
of the consequences of making a statement to the police; that there
was advice given and understood; that the defendant could be
convicted of first degree murder on the felony murder theory as
well as on the joint venture theory." See Smiley, 727 N.E.2d at
1187 (citing trial judge's findings).
On August 21, 1994, the jury convicted Smiley of first-
degree felony murder, indicating by special verdicts that both
armed robbery and armed assault in a dwelling constituted the
underlying felonies. The jury also convicted Smiley of the
remaining charges. Smiley received a mandatory life term for the
murder conviction and lesser concurrent sentences for the kidnaping
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and illegal possession of a firearm convictions. On November 28,
1997, Smiley filed a motion for a new trial, which the trial court
denied after a non-evidentiary hearing.
On May 12, 2000, the Massachusetts Supreme Judicial Court
(SJC) affirmed the convictions, finding, inter alia, that
"defendant was not denied effective assistance of counsel."
Smiley, 727 N.E.2d at 1182. The SJC rejected Smiley's arguments
that Attorney Williams failed to complete an adequate factual
investigation, that he provided inadequate and misleading legal
advice, and that he failed to pursue the opportunity of Smiley
becoming a cooperating witness. Id. at 1186-88. In so finding,
the SJC deferred to the trial judge's findings of facts, as it
"accept[s] the motion judge's subsidiary findings of fact absent
clear error." Id. at 1186-87 (citing Commonwealth v. Yesilciman,
550 N.E.2d 378 (Mass. 1990)).
In 2001, Smiley petitioned for habeas relief under 28
U.S.C. § 2254, arguing, among other things, ineffective assistance
of counsel that led to an unprotected confession. In 2003, a
magistrate judge recommended that the petition be dismissed, and in
2004, the district court agreed. Smiley filed a timely notice of
appeal, and the district court granted a certificate of
appealability on September 9, 2004. We review a district court's
denial of habeas relief de novo. See, e.g., Mello v. DiPaulo, 295
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F.3d 137, 145 (1st Cir. 2002) (citing Nadeau v. Matesanz, 289 F.3d
13, 15 (1st Cir. 2002)).
II
A criminal defendant claiming a Sixth Amendment
ineffective assistance violation must establish that (1) "counsel's
representation fell below an objective standard of reasonableness,"
and (2) "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 694 (1984).
See also Mello, 295 F.3d at 142. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
A habeas petitioner must further show, under the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132,
110 Stat. 1214 (1996), that the state court's decision "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). The
"contrary to" prong is satisfied when the state court "applies a
rule that contradicts the governing law set forth in [the Supreme
Court's] cases," Williams v. Taylor, 529 U.S. 362, 405 (2000), or
if "the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a [different] result," id. at 406. The
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"unreasonable application" prong is satisfied 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." Id. at 413. Moreover, "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 411.
On previous occasions, we have noted that "[t]he
Strickland principles for deciding ineffective assistance of
counsel claims are 'clearly established' for purposes of the
AEDPA." Ouber v. Guarino 293 F.3d 19, 26 (1st Cir. 2002) (citing
Williams, 529 U.S. at 371-74). We have also noted that "'the
standard for ineffective assistance under Massachusetts law appears
functionally equivalent to the federal standard.'" Stephens v.
Hall, 294 F.3d 210, 214-15 (1st Cir. 2002) (quoting Phoenix v.
Matesanz, 189 F.3d 20, 27 n.4 (1st Cir. 1999).
In the instant case, Smiley argues that Attorney Williams
rendered ineffective assistance by arranging an unprotected
confession to first degree murder -- without conducting any
independent fact investigation or adequate legal research -- in
hopes of being offered cooperating witness status and a second
degree murder plea, and then abandoned all negotiations with the
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District Attorney after the confession. The confession, Smiley
argues, prejudiced his defense because it was used against him in
cross-examination, it helped form Shinholster's account and
"devastating" testimony against him, and it was used in the
prosecutor's closing argument.
We cannot conclude, however, that the SJC unreasonably
applied the legal principles of Strickland to the facts of Smiley's
case.2 The SJC, in finding that counsel's performance was not
deficient, deferred to the motion judge's finding that counsel
advised Smiley not to make any statements to the police, that it
was Smiley who wanted to cooperate with the prosecutor and had
initiated the subject himself, and that counsel advised Smiley,
before meeting with the police, that "he could be responsible for
the homicide even though he never pulled the trigger himself."
Smiley, 727 N.E.2d at 1187. Counsel also explained to Smiley that
2
Although the SJC did not specifically refer to Strickland, it
did refer to cases which cite the seminal Massachusetts case on
ineffective assistance, Commonwealth v. Saferian, 315 N.E.2d 878
(Mass. 1974). Smiley, 727 N.E.2d at 1186-87 (citing Care &
Protection of Stephen, 514 N.E.2d 1087 (Mass. 1987); Commonwealth
v. Chetwynde, 574 N.E.2d 407 (Mass. 1991)). We have noted on
several occasions that even if the SJC does not cite Strickland for
the ineffective assistance of counsel standard, the Saferian
standard is "functionally identical to the federal standard,"
Mello, 295 F.3d at 144 (citing Scarpa v. DuBois, 38 F.3d 1, 7 n.4;
Ouber, 293 F.3d at 35), and is therefore sufficient for habeas
ineffective assistance claims. In the instant case, we note that
the SJC decision is not "contrary to" Strickland, as the SJC did
not apply a rule that contradicts the Strickland principles, nor
confronted a set of facts materially indistinguishable from the
Strickland facts. Williams, 529 U.S. at 405-06.
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a possible benefit of cooperation, while not guaranteed, could be
a possible plea of second degree murder,3 and counsel did not rush
Smiley into making a statement. Moreover, contrary to Smiley's
contention, the motion judge found that counsel did investigate the
facts of the case by interviewing Smiley and other witnesses, by
speaking with a co-defendant's attorney, and by reviewing written
discovery materials. Thus, the SJC agreed with the motion judge's
finding that "defendant did not receive any 'bad' or incorrect
legal advice," id., and Smiley presents no "clear and convincing
evidence" that their factual findings are otherwise incorrect. See
28 U.S.C. § 2254(e). Smiley does not cite to any Supreme Court
precedent to support his contention, and we cannot find any reason
at this juncture to hold, that an attorney's inability to secure a
cooperating witness status or inability to continue negotiations
with the district attorney after a confession constitutes a Sixth
Amendment ineffective assistance violation. Thus, we find that the
3
Smiley argues that his attorney misunderstood Massachusetts'
homicide sentencing laws and misadvised him that he could plead to
second degree murder and negotiate for a term of years sentence,
rather than the mandated life sentence (with a possibility of
parole after 15 years). Even assuming that this is true, the
opportunity to plead to second degree murder was later offered to,
and rejected by, Smiley. In any event, the motion judge had found
that "Attorney Williams advised the defendant that he could be
responsible for the homicide even though he never pulled the
trigger himself . . . under the theory of joint venture or a theory
of felony murder."
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SJC's holding was not an unreasonable application of the first
Strickland prong.4
III
Since we cannot say that the SJC's rejection of Smiley's
ineffective assistance of counsel claim "was contrary to, or
involved an unreasonable application of, clearly established
Federal law," 28 U.S.C. § 2254(d)(1), the district court's judgment
is affirmed.
Affirmed.
4
Even if we assume, however, that "counsel's representation fell
below an objective standard of reasonableness," we fail to find
prejudice resulting therefrom. Strickland, 466 U.S. at 694. As
Smiley concedes, the Commonwealth never introduced his police
statement during the trial, and to the extent that it was used to
impeach his testimony, the trial judge specifically instructed the
jury that prior inconsistent statements could not be used as
substantive evidence. Under similar reasoning, we cannot conclude
that the prosecutor's use of that statement during closing
arguments would have substantially altered the outcome of the case.
Ouber, 293 F.3d at 25-26. It was Smiley's trial counsel who first
introduced that statement, and Smiley cites no precedent holding
that such a statement used only for impeachment purposes is
unconstitutional and warrants habeas relief. Smiley's remaining
prejudice argument -- that his police statement was used by
Shinholster in testifying against him -- also falters. The record
is devoid of any suggestion that Shinholster used Smiley's
statement to craft a different story at trial, and in any event, we
find no Supreme Court precedent suggesting -- and we find no reason
to now hold -- that such a statement shown to a prosecution witness
warrants habeas relief. Because we find it difficult to accept
that "but for counsel's unprofessional errors, the result of the
proceeding would have been different," no Strickland prejudice
exists. Strickland, 466 U.S. at 694.
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