Sleeper v. Spencer

United States Court of Appeals
For the First Circuit

No. 06-2477

JOSEPH SLEEPER,

Petitioner, Appellant,

v.

LUIS S. SPENCER, Superintendent, M.C.I. Norfolk;
MARTHA COAKLEY, Attorney General of the Commonwealth of
Massachusetts,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges
and Barbadoro,* District Judge

William C. Newman, with whom Richard L. Goldman was on the
brief, for appellant.
Eva M. Badway, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Martha Coakley, Attorney General, was on
brief for appellee.

December 5, 2007

*
Of the District of New Hampshire, sitting by designation.
 BARBADORO, District Judge. Joseph Sleeper was convicted

of first degree murder in Massachusetts Superior Court. The

Supreme Judicial Court (SJC) affirmed Sleeper’s conviction,

Commonwealth v. Sleeper, 760 N.E.2d 693, 713 (Mass. 2002), and the

United States District Court for the District of Massachusetts

denied his petition for a writ of habeas corpus. Sleeper v.

Spencer, 453 F. Supp. 2d 204, 223 (D. Mass. 2006). The sole ground

certified for appeal is Sleeper’s claim that he received

ineffective assistance of counsel because his attorney promised in

his opening statement to present an insanity defense even though he

knew or should have known that the court would not allow the jury

to consider the defense. The SJC confronted this argument head on,

concluding that counsel’s alleged promise was a misstatement rather

than a broken promise and was, in any event, inconsequential.

Because the SJC’s determination that Sleeper suffered no prejudice

is reasonable in light of controlling Supreme Court precedent, we

affirm without resolving Sleeper’s contention that counsel’s

performance was deficient.

I.

A. The crime

Sleeper and his wife, Victoria, separated in March 1992.1

She filed for divorce several months later and obtained a

1
We set forth only the facts relevant to this appeal. The
SJC’s opinion, Commonwealth v. Sleeper, 760 N.E.2d 693, 697-99
(Mass. 2002), describes the background facts in greater detail.

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protective order barring Sleeper from the marital home. In August

1993, after 17 months of separation, Victoria began dating another

man. Sleeper soon became aware of this new relationship.

On September 2, 1993, Victoria and her male friend left

the area for a Labor Day weekend vacation. While they were away,

Sleeper made numerous telephone calls and entered Victoria’s home

in an effort to determine her whereabouts. Victoria returned,

alone, on September 6, 1993. That evening, sometime before 9:00

p.m., Sleeper confronted Victoria at home. After chasing her into

the bedroom, Sleeper stabbed her at least eight times with a knife.

Two of the stab wounds severed her ribs, and the deepest wound went

between six and one-half and seven inches into her chest. Sleeper

noticed that Victoria was still breathing but did not telephone for

an ambulance. She remained conscious for approximately four to

five minutes after being stabbed, and died a few minutes later.

Sleeper left Victoria’s home at about 9:30 p.m. Several

hours later, he entered a nearby State Police barracks and told the

trooper at the front desk that he had just killed his wife. In

explaining what had happened, Sleeper told the officers who

questioned him that he had gone to the home to confront Victoria

about her new relationship and that he had obtained the knife he

used to kill her from a toolbox in her home.

B. The trial

Sleeper’s counsel filed a motion seeking funds for a

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psychological examination on October 26, 1993. In support of the

motion, counsel asserted that “facts exist to substantiate a

defense of either partial or total mental defect of the Defendant.”

The court granted the motion and counsel retained Dr. Ronald Ebert,

a forensic psychologist, to examine Sleeper. Counsel filed Dr.

Ebert’s report with the court on April 19, 1994. On May 23, 1994,

counsel filed requests for jury instructions that included both

instructions on an insanity defense pursuant to Commonwealth v.

McHoul, 226 N.E.2d 556 (Mass. 1967), and instructions on mental

impairment negating the mens rea required for first-degree murder,

pursuant to Commonwealth v. Gould, 405 N.E.2d 927 (Mass. 1980).

The trial began on May 25, 1994. Sleeper’s counsel

delivered his opening statement immediately after the prosecutor’s

opening. He began by conceding that “Joseph Sleeper killed his

wife, he stabbed her at least eight times viciously in the chest

and other parts of her body.” He then explained that, “We are not

going to sit here and pretend, to play games as to who done it . .

. . You’re here to determine whether or not Joe Sleeper committed

first degree murder, second degree murder, manslaughter, or was

insane at the time he did it.” Counsel then detailed Sleeper’s

early adult life, his marriage to Victoria, and how he began to

drink and feel that “things were coming apart in his heart” after

the first time he saw his wife “with another guy in a pickup

truck.” Counsel described the night of the killing from Sleeper’s

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perspective, describing Sleeper’s mental state as “insane” and

“absolutely frenzied.” Counsel ended his opening statement with

this request: “Put yourself in the real world, please, and then

make a determination as to whether this was a premeditated and

planned scheme, a first degree murder case, which it is not; or

something that built in this man and drove him crazy. That is what

happened.”

Sleeper testified at trial. He claimed that he went to

Victoria’s home on the night of the crime to borrow a car from one

of their sons. He also testified that he encountered Victoria

outside the home and that she invited him to come inside. He

admitted that they argued. When he followed Victoria into her

bedroom in an effort to stop her from calling the police, he

claimed he saw a condom and a knife in an open chest of drawers.

At that point, Sleeper said, “Everything just went crazy. I

started seeing a merry-go-round, a ferris wheel with the numbers on

it . . . I grabbed the knife and I had stabbed her.” After the

stabbing, “I was spinning all around, I remember spinning, I

remember I didn’t know what to do and I went down.” In short,

Sleeper claimed that he was unaware of what he was doing when he

killed Victoria.

Dr. Ebert testified as an expert witness for Sleeper.

Dr. Ebert opined that Sleeper was a long-time alcoholic and was

suffering from an acute state of depression with psychotic

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features. Although Dr. Ebert acknowledged that Sleeper was not

insane, he opined that Sleeper had a “diminished capacity” to act

with criminal intent when he killed Victoria.

Dr. Wesley Profit, then the director of forensic services

at Bridgewater State Hospital, offered expert rebuttal testimony.

Dr. Profit opined that Sleeper was not suffering from any major

mental illness, that he did not lack criminal responsibility at the

time of the killing, and that he had the ability to harbor malice.

On cross-examination, however, he conceded that he had not formed

an opinion as to whether Sleeper suffered from “a diminished

capacity.”

During the charge conference after the conclusion of the

evidence, the court agreed to provide instructions regarding

counsel’s mental impairment defense. Sleeper’s counsel requested

an insanity instruction notwithstanding the expert testimony, but

the court denied this request.

In his closing statement, Sleeper’s counsel began, “We

are not asking you to make a determination as to whether or not

Joseph Sleeper stabbed his wife eight times in the heart . . . what

you’re going to have to determine is the state of mind Joseph

Sleeper was in at the time.” Counsel emphasized, “this is not a

first degree murder case . . . . This is the act of someone that

was in a frenzy, that had a diminished capacity of intent.” He

contrasted the testimony of Dr. Ebert and Dr. Profit, emphasized

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Dr. Ebert’s opinion that “there was a diminished capacity in this

man’s intent to perform premeditation and his intent to perform

malice,” and noted that Dr. Profit had not contradicted Dr. Ebert’s

opinion on diminished capacity. After discussing Sleeper’s

relationship with Victoria and the events on the night he killed

her, counsel returned to the psychological testimony and again

repeated Dr. Ebert’s conclusions and credentials.

The court instructed the jury that it could convict

Sleeper of first degree murder if Sleeper committed either

premeditated murder or murder with extreme atrocity or cruelty. It

also instructed on the lesser included offenses of second degree

murder and voluntary manslaughter. Over the Commonwealth’s

objection, the court informed the jury that it could consider

evidence of Sleeper’s mental state at the time of the offense in

determining whether he acted with the mens rea required for either

first or second degree murder. The court also instructed the jury

on Sleeper’s claim that he was at most guilty of manslaughter

because he committed the crime in the heat of passion with adequate

provocation.

The jury ultimately convicted Sleeper of first degree

murder because it determined that he acted with premeditation. It,

however, rejected the Commonwealth’s contention that Sleeper was

also guilty of committing the murder with extreme atrocity or

cruelty.

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C. The Appeal

Sleeper appealed his conviction directly to the SJC,

asserting twenty-nine assignments of error. As to ineffective

assistance, Sleeper argued that his trial counsel was ineffective

because counsel improperly promised that he would present an

insanity defense in his opening statement even though he knew or

should have known that no evidence would be introduced to support

that defense. The SJC reviewed his claim under the ineffective

assistance of counsel standard it uses on direct review of first

degree murder cases: “whether there was an error in the course of

the trial (by defense counsel, the prosecutor, or the judge) and,

if there was, whether that error was likely to have influenced the

jury’s conclusion.” Sleeper, 760 N.E.2d at 710 (quoting

Commonwealth v. Wright, 584 N.E.2d 621, 624 (Mass. 1992)). Using

this standard, the SJC held that Sleeper’s counsel was not

ineffective. Id. at 711. Although the court found that counsel

“no doubt misspoke” when he informed the jury that it would be

asked to consider whether Sleeper was “insane,” the court held that

the misstatements did not amount to a broken promise; counsel’s

references to insanity were consistent with his argument that

Sleeper suffered from mental impairments that negated the mens rea

required for a first degree murder conviction. Id. For similar

reasons, the court concluded both that “[i]n the context of the

entire trial, counsel’s statement was inconsequential” and “no

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reasonable juror would feel ‘disappointed’ by the defense.” Id.

D. The federal habeas corpus petition

Sleeper subsequently filed a petition for habeas corpus

in the United States District Court for the District of

Massachusetts, asserting six different grounds for relief. As to

ineffective assistance, the district court rejected Sleeper’s

arguments that the SJC failed to fully adjudicate Sleeper’s federal

claim on the merits. Sleeper, 453 F. Supp. 2d at 219. Although

conceding that the question before the SJC was a close one, the

district court then dismissed Sleeper’s ineffective assistance

claim because it determined that the SJC’s analysis was not

objectively unreasonable. Id. at 222.

On November 30, 2006, the district court issued a Certificate

of Appealability (COA). The sole claim certified for appeal was

Sleeper’s ineffective assistance of counsel claim.

II.

A. AEDPA

This case is governed by the standards of review

established by the Anti-Terrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2254, and the well-established Strickland test

for ineffective assistance of counsel claims. Strickland v.

Washington, 466 U.S. 668, 687 (1984). We briefly review the

relevant law in both areas before turning to the merits of

Sleeper’s claim.

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 Under AEDPA, if a state court has adjudicated a habeas

petitioner’s claim on the merits, a federal court may issue the

writ only if the state court’s adjudication resulted in a decision

that “was contrary to” clearly established federal law, involved an

“unreasonable application” of clearly established federal law, or

was based on an “unreasonable determination of the facts in light

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

A state court’s decision is contrary to clearly

established federal law if the state court arrives at a conclusion

opposite from that reached by the U.S. Supreme Court on a question

of law, or if the state court decides the case differently than the

U.S. Supreme Court has on a set of materially indistinguishable

facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state court’s decision unreasonably applies clearly

established federal law if the state court correctly identifies the

governing legal principles, but (i) applies those principles to the

facts of the case in an objectively unreasonable manner; (ii)

unreasonably extends clearly established legal principles to a new

context where they should not apply; or (iii) unreasonably refuses

to extend established principles to a new context where they should

apply. L’Abbe v. DiPaolo, 311 F.3d 93, 96 (1st Cir. 2002) (citing

Williams, 529 U.S. at 407). If the state court does not expressly

apply the federal standard but resolves the issue under a state law

standard that is more favorable to defendants than the federal

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standard, then the reviewing court “will presume the federal law

adjudication to be subsumed within the state law adjudication.”

Teti v. Bender, __ F.3d __, 2007 WL 3293523, at *3 (1st Cir. Nov.

8, 2007) (quoting McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir.

2002)). To be unreasonable, the state court’s application of

existing legal principles must be more than merely erroneous or

incorrect. Williams, 529 U.S. at 411. “We agree with the Second

Circuit that ‘some increment of incorrectness beyond error is

required.’ Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000).

The increment need not necessarily be great, but it must be great

enough to make the decision unreasonable in the independent and

objective judgment of the federal court.” McCambridge, 303 F.3d at

36.

In reviewing a habeas corpus petition under AEDPA, a

federal court will presume that the state court’s findings of fact

are correct. For this purpose, the term “facts” refers to “basic,

primary, or historical facts,” such as witness credibility and

recitals of external events. Sanna v. DiPaolo, 265 F.3d 1, 7 (1st

Cir. 2001) (quoting Bryson v. Ward, 187 F.3d 1193, 1211 (10th Cir.

1999)). The habeas petitioner may defeat the presumption of

correctness only with clear and convincing evidence to the

contrary. 28 U.S.C. § 2254(e)(1); see also Ouber v. Guarino, 293

F.3d 19, 27 (1st Cir. 2002). The presumption of correctness is

equally applicable when a state appellate court, as opposed to a

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state trial court, makes the findings of fact. Norton v. Spencer,

351 F.3d 1, 6 (1st Cir. 2003) (quoting Sumner v. Mata, 455 U.S.

591, 593 (1982)).

B. Ineffective assistance of counsel

The Supreme Court has explained that an ineffective

assistance of counsel claim requires both deficient performance and

prejudice. Strickland, 466 U.S. at 687.

To establish that counsel’s performance was deficient, a

defendant must show that it fell below an objective standard of

reasonableness under the circumstances. Id. at 687-88. This is a

highly deferential review, making every effort to “eliminate the

distorting effects of hindsight.” Id. at 689. As the Supreme

Court emphasized in Yarborough v. Gentry, the “Sixth Amendment

guarantees reasonable competence, not perfect advocacy judged with

the benefit of hindsight.” 540 U.S. 1, 8 (2003). When examining

counsel’s conduct, the court considers the facts of the particular

case from counsel’s perspective at the time. Strickland, 466 U.S.

at 690. Counsel has “wide latitude in deciding how best to

represent a client,” Gentry, 540 U.S. at 5-6, and benefits from a

strong presumption that he or she rendered adequate assistance and

exercised reasonable professional judgment in making all

significant decisions. Strickland, 466 U.S. at 690.

To establish prejudice, the defendant must show that, but

for counsel’s unprofessional error, there is a reasonable

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probability that the result of the proceeding would have been

different. See Wiggins v. Smith, 539 U.S. 510, 537 (2003) (finding

prejudice where there was a “reasonable probability that at least

one juror would have struck a different balance”); Strickland, 466

U.S. at 694. A reasonable probability is a probability sufficient

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

694.

III.

Although Sleeper must prove both deficient performance

and prejudice to prevail on his ineffective assistance of counsel

claim, a reviewing court need not address both requirements if the

evidence as to either is lacking. As the Supreme Court has

recognized, “[i]f it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.”

Strickland, 466 U.S. at 697. We take this path here and address

only Sleeper’s claim of unfair prejudice, leaving unresolved both

his argument that the SJC erred in finding that counsel’s

references to insanity were mere misstatements and his contention

that counsel’s performance was deficient. We begin by explaining

why the SJC’s no-prejudice ruling is entitled to AEDPA deference

and then turn to Sleeper’s specific challenges to the SJC’s ruling.

A. AEDPA Deference

Sleeper argues that the SJC’s no-prejudice ruling should

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be reviewed de novo for two related reasons. First, he asserts

that deference is unwarranted because the SJC analyzed his

ineffective assistance of counsel claim under a state law standard

that fails to satisfy the requirements of federal law. In the

alternative, he argues that de novo review is required even if the

SJC used an acceptable legal standard because the court did not

engage in a fully developed prejudice analysis. Neither argument

has merit.

The SJC reviewed Sleeper’s ineffective assistance of

counsel claim by asking “whether there was an error in the course

of the trial (by defense counsel, the prosecutor, or the judge)

and, if there was, whether that error was likely to have influenced

the jury’s conclusion.” Sleeper, 760 N.E.2d at 710 (quoting

Commonwealth v. Wright, 584 N.E.2d 621, 624 (Mass. 1992)). Because

this court has previously determined that the standard used by the

SJC in analyzing Sleeper’s claim is at least as protective of

defendants as the federal ineffective assistance of counsel

standard, see Horton v. Allen, 370 F.3d 75, 86 (1st Cir. 2004),

cert. denied, 543 U.S. 1093 (2005), “we will presume the federal

law adjudication to be subsumed within the state law adjudication.”

Teti, 2007 WL 3293523, at *4 (quoting McCambridge, 303 F.3d at 35).

Accordingly, there is no merit to Sleeper’s claim that the SJC

based its analysis of the prejudice question on an insufficiently

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protective legal standard.2

Sleeper’s alternative argument is also unavailing.

Although the SJC analyzed Sleeper’s claim by focusing primarily on

the adequacy of counsel’s performance, it also specifically

addressed the issue of prejudice, finding that “in the context of

the entire trial, counsel’s statement [that Sleeper was insane] was

inconsequential.” Sleeper, 760 N.E.2d at 710-11. The court

further explained its determination by noting that counsel’s

references to insanity were not problematic because they were

“reasonably predictive of the trial that unfolded.” Id. at 711.

This analysis is sufficiently developed to entitle the SJC’s no-

prejudice determination to AEDPA deference.

B. Prejudice

The Supreme Court has not identified the circumstances

under which an ineffective assistance of counsel claim may be

premised on a broken promise in an opening statement. This court,

however, has invalidated convictions because of broken promises in

2
Sleeper mistakenly relies on Lynch v. Ficco, 438 F.3d 35
(1st Cir. 2006) for the proposition that the SJC based its no-
prejudice determination on a state law standard that is less
protective of defendants than the federal ineffective assistance of
counsel standard. Although the Lynch court reviewed the claim that
was before the court under a de novo standard of review, it did so
in part because “the SJC did not purport to do an ineffective
assistance analysis . . . .” Id. at 48. In this case, in
contrast, the SJC specifically analyzed Sleeper’s claim using an
ineffective assistance of counsel test that this court has
determined is at least as protective of defendants as the federal
standard. Horton, 370 F.3d at 86; Mello v. DiPaulo, 295 F.3d 137,
144 (1st Cir. 2002)

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Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), United States v.

Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997), and Ouber v.

Guarino, 293 F.3d 19 (1st Cir. 2002). Sleeper relies on all three

decisions in arguing that the SJC’s no-prejudice ruling represents

an unreasonable application of Supreme Court precedent.3

In Anderson, counsel promised in his opening statement to

call two expert witnesses (a psychiatrist and a psychologist).

Anderson, 858 F.2d at 17. The experts, counsel stated, would opine

that the defendant was “walking unconsciously toward a

psychological no exit . . . like a robot programmed on

destruction,” when he killed his wife. Id. The next day, counsel

rested on the basis of lay witness testimony alone, without calling

the promised experts. Id. In concluding that counsel’s broken

promise had irreparably damaged the defense case, the court

reasoned that “[t]he first thing that the ultimately disappointed

jurors would believe, in the absence of some other explanation,

would be that the doctors were unwilling, viz., unable, to live up

to their billing. This they would not forget.” Id. at 17.

In Gonzalez-Maldonado, counsel relied on the trial

court’s pretrial ruling allowing a defense psychiatrist to testify

3
This court also considered the subject of broken promises in
United States v. McGill, 11 F.3d 223 (1st Cir. 1993) and Phoenix v.
Matesanz, 233 F.3d 77 (1st Cir. 2000). In both cases, however, the
court did not address the prejudice prong of the ineffective
assistance test because it determined that counsel’s conduct was
justified under the circumstances.

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when counsel promised the jury that he would produce psychiatric

testimony regarding the defendant’s mental illness. Gonzalez-

Maldonado, 115 F.3d at 14. During the presentation of the

defendant’s case, however, the court reconsidered its prior ruling

and decided that the psychiatrist would not be permitted to

testify. Id. On appeal, this court held that the trial court’s

whiplash-inducing series of rulings constituted reversible error.

Id. at 15. Although the case did not present an ineffective

assistance claim, this court relied on Anderson in holding that the

defendant was prejudiced by counsel’s broken promise to admit the

psychiatric evidence. Id. Explaining its conclusion, the court

noted, “[i]f the defense fails to produce promised expert testimony

that is critical to the defense strategy, a danger arises that the

jury will presume that the expert is unwilling to testify and the

defense is flawed.” Id. at 15.

In Ouber, counsel promised four times in his opening

statement that the defendant would testify, and he underscored the

importance of the anticipated testimony by stating that it was the

centerpiece of the case: “The case is going to come down to what

happened in that car and what your findings are as you listen to

the credibility and the testimony of Todd Shea versus what your

findings are as you listen to the testimony of [defendant] Barbara

Ouber.” Ouber, 293 F.3d at 22. On the evening of the first day of

trial, counsel persuaded the defendant not to testify. Id. at 24.

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In concluding that counsel’s broken promise was prejudicial, the

court reasoned that “counsel’s belated decision not to present the

petitioner’s testimony sabotaged the bulk of his efforts prior to

that time (and, in the process, undermined his own standing with

the jury, thereby further diminishing the petitioner’s chances of

success).” Id. at 34.

The present case differs materially from Anderson,

Gonzalez-Maldonado, and Ouber because Sleeper’s claim is premised

on counsel’s alleged breach of a promise to present an additional

defense rather than a promise to provide specific testimony from a

particular witness. A breached promise to present specific

evidence can injure because it invites speculation that the omitted

evidence would have harmed an otherwise viable defense. Anderson,

858 F.2d at 17. In contrast, an unfulfilled promise to present an

additional defense ordinarily will not impair counsel’s ability to

proceed with the remaining defenses. Id. at 19.

Sleeper nevertheless challenges the SJC’s no-prejudice

ruling because he claims that counsel’s promised insanity defense

was inconsistent with the defenses that ultimately were submitted

to the jury. We hold that the SJC did not act unreasonably in

concluding otherwise. Sleeper presented two defenses: mental

impairment negating the mens rea required for first degree murder4

4
Sleeper faults his counsel for presenting a “diminished
capacity defense” that he claims Massachusetts law does not
recognize. This criticism is unwarranted. Although the SJC

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and reasonable provocation preventing a conviction for either first

or second degree murder. Neither defense was significantly damaged

by counsel’s alleged promise of an insanity defense.

Every statement that counsel made in his opening

statement concerning Sleeper’s mental state at the time of the

crime was consistent with Sleeper’s mental impairment defense. At

most, jurors might have faulted counsel for overreaching. Such

overreaching, however, while generally inadvisable, will rarely

produce significant prejudice if it consists merely of a broken

promise to present a complete defense when only a consistent

partial defense is supportable. Accordingly, the SJC had

sufficient grounds for its conclusion that “no reasonable juror

would feel ‘disappointed’” by the mental impairment defense that

Sleeper actually presented. Sleeper, 760 N.E.2d at 711.

declines to use “diminished capacity” as a label for the state’s
mental impairment defense, see, e.g., Commonwealth v. Candelario,
848 N.E.2d 769, 776 (Mass. 2006), it has consistently recognized
that mental impairment can prevent a defendant from acting with
premeditation, extreme atrocity and cruelty, intent, and knowledge.
See, e.g., Commonwealth v. Murphy, 813 N.E.2d 820, 825 n.4 (Mass.
2004). See generally Katherine E. McMahon, Murder, Malice and
Mental State: A Review of Recent Precedent Recognizing Diminished
Capacity from Commonwealth v. Greg to Commonwealth v. Sama, 78
Mass. L. Rev. 40 (1993) (collecting cases). In the present case,
the trial court appropriately instructed the jury that it could
consider whether Sleeper suffered from a mental impairment that
prevented him from acting with the mens rea required for a murder
conviction. Further, it is clear from the record that counsel
merely used the term “diminished capacity” in his remarks to the
jury to refer to his mental impairment defense. Thus, counsel did
not ask the jury to consider a defense that Massachusetts law does
not recognize.

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 Sleeper’s argument that counsel’s references to a

possible insanity defense undermined his reasonable provocation

defense fares no better. Sleeper bases his argument on case law

recognizing that provocation is a viable defense to murder only

when “a reasonable person would have become sufficiently provoked

and would not have ‘cooled off’ by the time of the homicide . . .

.” Commonwealth v. Acevedo, 845 N.E.2d 274, 283 (Mass. 2006)

(quoting Commonwealth v. Groome, 755 N.E.2d 1224, 1240 (Mass.

2001)). Working from this foundation, Sleeper argues that

counsel’s references to insanity conflicted with his provocation

defense because these references made it more difficult to

establish the objective prong of provocation (i.e., that a

reasonable person in Sleeper’s position would have been provoked).

This argument is flawed on two counts. First, Sleeper cannot show

that but for counsel’s references to insanity, he would not have

suffered the claimed prejudice. The claimed prejudice stems as

much from counsel’s reasonable strategic decision to present a

mental impairment defense as it does from his allegedly broken

promise of an insanity defense. In any event, Sleeper is simply

wrong in suggesting that an insanity defense is necessarily

incompatible with his provocation defense. Evidence that a

defendant is easily provoked because he suffers from a mental

illness does not prevent the defendant from arguing that a

reasonable person would have responded in the same way.

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 In a last-ditch effort to prove prejudice, Sleeper argues

that counsel’s broken promise of an insanity defense harmed him

because it opened the door to otherwise inadmissible consciousness

of guilt evidence and adverse psychological opinion testimony from

the Commonwealth’s expert. This argument lacks merit. The SJC

reasonably determined that the consciousness of guilt evidence was

admissible to establish Sleeper’s identity as the killer. Sleeper,

760 N.E.2d at 707-08. We see no reason to question this

determination. Moreover, both the consciousness of guilt evidence

and the Commonwealth’s psychological evidence were independently

admissible in response to Sleeper’s mental impairment defense.

Thus, counsel’s references to insanity did not open the door to the

introduction of otherwise inadmissible evidence.

IV.

Counsel faced a daunting task in defending Sleeper. His

client had confessed to a gruesome killing and his reasonable

provocation defense was problematic, both because its factual

predicate was undermined by Sleeper’s own statements to the police,

and because it is difficult to see how a reasonable person could

have been provoked into the heat of passion even if events unfolded

as Sleeper claimed at trial. Under these circumstances, Sleeper’s

best defense was to argue that his actions were the product of a

mental impairment. If counsel promised more than he could deliver

on that score, his promise did not undermine any viable defense or

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open the door to otherwise inadmissible evidence. Accordingly, we

find no support in the record for Sleeper’s challenge to the SJC’s

no-prejudice ruling.

The district court’s ruling dismissing Sleeper’s habeas

corpus petition is affirmed.

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