Yeboah-Sefah v. Ficco

United States Court of Appeals
For the First Circuit

No. 07-2585

DANIEL YEBOAH-SEFAH,
a/k/a HENRY K. BOATENG,

Petitioner, Appellant,

v.

EDWARD FICCO,

Respondent, Appellee.

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

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Selya, Circuit Judges,
and Domínguez,* District Judge.

Chauncey B. Wood, with whom Wood & Nathanson, LLP, was on
brief for appellant.
David T. Huang, Assistant Attorney General, Criminal Division,
with whom Martha Coakley, Attorney General, was on brief for
appellee.

February 19, 2009

*
Of the District of Puerto Rico, sitting by designation.
 TORRUELLA, Circuit Judge. Petitioner, Daniel Yeboah-

Sefah, a/k/a Henry K. Boateng,1 is a state prisoner convicted in

Massachusetts of charges stemming from the murder of his five-week

old son and the severe beating of his former girlfriend. He was

sentenced to life imprisonment. His primary defense at trial was

that he was not guilty by reason of insanity.

Petitioner's present appeal challenges the district

court's denial of his federal petition for habeas corpus relief.

Among the issues raised on habeas, petitioner argues that (1) he

did not make a "knowing, intelligent and voluntary waiver" of his

constitutional right to "conflict-free counsel"; (2) he was

deprived of effective assistance of counsel; and (3) he was

deprived of due process by the trial court's failure to hold

competency and voluntariness hearings sua sponte. After careful

consideration, we affirm the denial of habeas corpus relief by the

district court.

I. Background

A. Facts

We take the facts largely as recounted by the

Massachusetts Supreme Judicial Court ("SJC") decision affirming

Yeboah-Sefah's conviction, "supplemented with other record facts

1
Petitioner was known at the time of his conviction as "Henry K.
Boateng." He has since legally changed his name to "Daniel Yeboah-
Sefah," the name under which he filed the instant habeas petition.
We will hereinafter refer to petitioner as "Yeboah-Sefah."

-2-
consistent with the SJC's findings." Healy v. Spencer, 453 F.3d

21, 22 (1st Cir. 2006).

Yeboah-Sefah and Alecia Moore ("Moore") met in Worcester,

Massachusetts in June of 1991 and began to date. In January 1992,

Yeboah-Sefah began attending the University of Massachusetts at

Amherst, but soon dropped out. Yeboah-Sefah then discovered that

Moore was pregnant with his child. In the fall of 1992, Yeboah-

Sefah moved in with Moore and a week later their son, Jameel, was

born.

As a condition for Yeboah-Sefah moving in with her, Moore

asked that he either return to school or find a job. Yeboah-Sefah

failed to do so and on October 24, 1992, Moore initiated a

conversation with him during which she told him that he would have

to move out. This discussion took place in Yeboah-Sefah's bedroom,

down the hall from where Moore and the baby slept. The discussion

continued into the morning of October 25th.

When Moore got up to leave the room, Yeboah-Sefah sprang

up, threw her to the floor, and yelled "I'm going to kill you" as

he strangled, hit and kicked her. The attack on Moore lasted about

two hours, and included the use of a stick. At some point during

the assault, Yeboah-Sefah announced "I'm going to get the baby."

He then retrieved five-week old Jameel from his crib, threw him on

the floor, and began to kick and strangle him. When Moore tried to

intervene, Yeboah-Sefah kicked her in the face. Yeboah-Sefah

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eventually took the baby and put him back in his crib. Jameel died

from his injuries.

Moore managed to crawl back to her room and lie down on

the bed. Yeboah-Sefah entered and held a knife over Jameel, and

then over Moore. Eventually Moore's mother, Enid Hall ("Hall"),

called, and Yeboah-Sefah answered the phone. Yeboah-Sefah told

Hall that Moore was out doing laundry. He then hung up and ripped

the telephone cord out of the wall. As Moore had just been to her

house the day before to do laundry, Hall's suspicion were aroused

so she and Moore's sister drove to Moore's apartment to

investigate. When no one answered the door, they contacted the

police. Moore's mother and sister also yelled for Moore from

outside the apartment. Upon hearing them, Yeboah-Sefah became

disconsolate and went into the bathroom where he drank from a

container of bleach, saying he would not go to jail. He prevented

Moore from going downstairs to reach her mother and sister.

The police soon arrived. Moore was taken to a hospital

while a detective read Yeboah-Sefah the Miranda warnings and

questioned him about what had happened. Based on the testimony of

the officer at trial, Yeboah-Sefah responded that he and Moore had

gotten into a fight, and that he had beaten her with his fists and

knees. When asked about what happened to the baby, he admitted to

hitting Jameel's head on the bedroom wall and kicking him.

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 Yeboah-Sefah never denied killing Jameel or assaulting

Moore. His principal defense at trial was an insanity defense;

that he lacked criminal responsibility for his actions on account

of mental illness. Yeboah-Sefah presented testimony that, since

1988, he had been receiving treatment for a major psychiatric

disorder, diagnosed as depression with psychotic features and the

possibility of schizophrenia, and that he had been prescribed and

been taking various antidepressant and anti-psychotic medications.

A psychiatrist, Dr. David Rosemarin, was called as a defense

witness. Dr. Rosemarin testified that on the day of the crimes

Yeboah-Sefah was likely in the grip of psychosis, feeling under the

control of a spirit and hearing voices mocking him and telling him

to kill himself. Dr. Rosemarin related that Yeboah-Sefah had told

him that after assaulting Moore, but before attacking Jameel, he

had responded to these voices by mixing all of his medications and

taking them in one dose. While Dr. Rosemarin could come to no

conclusion regarding Yeboah-Sefah's state of mind during his attack

on Moore, he opined that Yeboah-Sefah had suffered a hallucination

causing him to believe that Jameel was some sort of evil creature

or cat who would kill him if he did not kill it first. It was Dr.

Rosemarin's further opinion that Yeboah-Sefah was not criminally

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responsible for the killing of the child within the meaning of

Massachusetts law.2

The Commonwealth called its own expert, Dr. Marc Whaley,

a psychologist who acknowledged that Yeboah-Sefah suffered from

mental illness and that anti-psychotic drugs had helped him

function. However, Dr. Whaley opined that Yeboah-Sefah's actions

on the day in question displayed a rationality that belied any

claim of actual insanity and, on that basis, concluded that Yeboah-

Sefah had sufficient mental capacity to be criminally responsible

for his actions on that date of his crimes. Dr. Whaley further

concluded that Yeboah-Sefah's mental illness impaired his capacity

to "premeditate" his actions. The Commonwealth also called a

medical examiner, Dr. Stanton Kessler. Dr. Kessler, who had

performed the autopsy on Jameel, testified about the decedent's

injuries and concluded that the cause of death was multiple blunt

traumatic injuries.

The case was submitted to the jury on two theories of

murder in the first degree: premeditation and "extreme atrocity or

cruelty." The jury convicted Yeboah-Sefah of the murder of Jameel

with "extreme atrocity or cruelty," but not murder with deliberate

premeditation. For the attack on Moore, Yeboah-Sefah was convicted

2
See Commonwealth v. McHoul, 226 N.E.2d 556, 557-558 (Mass. 1967)
(holding that criminal responsibility requires that a person have
the substantial capacity to appreciate the wrongfulness of his acts
and to conform his conduct to the requirements of the law).

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of armed assault with intent to murder, assault and battery by

means of a dangerous weapon, assault by means of a dangerous weapon

and assault and battery. He was sentenced to life imprisonment.

B. Procedural History

Yeboah-Sefah appealed his conviction and subsequently

filed a motion for a new trial, premised, among other things, on

the ineffective assistance of his trial counsel, Mr. John LaChance

("LaChance"). The appeal was stayed pending the outcome of the

motion. The motion judge, who was not the trial judge, conducted

an evidentiary hearing at which Yeboah-Sefah's new counsel called

three new expert witnesses, including two other psychologists and

a medical examiner. Yeboah-Sefah claimed that these witnesses, if

they had been called to testify at trial, would have presented a

stronger case for insanity, and that trial counsel's failure to

call them was manifestly unreasonable, constituting ineffective

assistance. Yeboah-Sefah's trial counsel also testified and

explained his trial tactics and strategy. The motion for a new

trial was denied. See Commonwealth v. Boateng, No. 92-0656, 2000

WL 1481424 (Mass. Super. Ct. Sept. 19, 2000).

Yeboah-Sefah timely appealed the denial of his new trial

motion, which the SJC consolidated with the direct appeal of his

convictions. On January 21, 2003, the SJC issued a decision

affirming both the murder conviction and the denial of the new

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trial motion. Commonwealth v. Boateng, 781 N.E.2d 1207 (Mass.

2003).3

On January 20, 2004, petitioner filed the instant habeas

corpus petition with the United States District Court for the

District of Massachusetts. The petition was followed by a motion,

which was granted, to stay federal proceedings until petitioner had

exhausted state avenues of relief. Petitioner then filed a second

motion for new trial in the Massachusetts Superior Court. On

March 25, 2005, an addendum to the motion was filed, along with

motions for an evidentiary hearing and funds to hire a psychiatric

expert. Following a non-evidentiary hearing before a new judge,

the second new trial motion was also denied. Commonwealth v.

Boateng, No. WO Cr. 1992-00656 (Mass. Super. Ct. Dec. 16, 2005).

Petitioner then appealed this denial to the SJC, where on May 5,

2006, pursuant to Mass. Gen. Laws ch. 278, § 33E, a single justice

issued a memorandum and order denying the petition for appellate

review on the ground that it did not raise a "new or substantial"

issue for the Court. Commonwealth v. Boateng, No. SJ-2006-0021

(SJC Memorandum, Cowin, J., May 5, 2006).

Yeboah-Sefah thereupon returned to the federal court

where the district court denied his habeas claims on September 13,

2007. Yeboah-Sefah v. Ficco, No. 04-10125-RWZ, 2007 WL 2713392 (D.

3
The SJC did vacate Boateng's conviction for armed assault with
intent to murder based on an erroneous jury instruction. Boateng,
781 N.E.2d at 1223.

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Mass. Sept. 13, 2007). Petitioner has timely appealed this denial

and the district court has granted a certificate of appealability

as to all issues.

II. Discussion

A. Applicable Law

1. Standard of Review

"We review the district court's denial of habeas relief

de novo." Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006) (citing

Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir. 2003)). "Put

differently, the district court opinion, while helpful for its

reasoning, is entitled to no deference." Healy, 453 F.3d at 25.

Our review of a federal claim on habeas is governed by

the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"). Under AEDPA, where a federal claim was "adjudicated on

the merits in State court proceedings," the application for habeas

corpus must be denied unless the state court's adjudication of the

claim satisfies either of two conditions: (1) it "resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law as determined by

the Supreme Court of the United States," or (2) it "resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding." 28 U.S.C. § 2254(d).

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 For purposes of section 2254(d)(1), "clearly established

Federal law" refers only to "the holdings, as opposed to the dicta,

of [the Supreme Court's] decisions at the time of the relevant

state court decision." Carey v. Musladin, 549 U.S. 70, 74 (2006)

(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000))(emphasis

added).

An "unreasonable application" of federal law
occurs when the state court identifies the
correct legal principle, "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 clearly established legal principles to
a new context where they should apply."

Malone v. Clarke, 536 F.3d 54, 63 (1st Cir. 2008) (quoting Sleeper

v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007)). A decision can still

be "reasonable" even if the reviewing court "concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly,"

rather, "unreasonable" here means something more than incorrect or

erroneous. Williams, 529 U.S. at 411. Moreover, even if a state

court's error rises to the level of being "unreasonable," habeas

relief is nevertheless unavailable unless petitioner can show that

the error had a "substantial and injurious effect or influence in

determining the jury's verdict." Delany v. Bartee, 522 F.3d 100,

105 (1st Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S. 619,

631 (1993)).

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 A matter is "adjudicated on the merits," giving rise to

deference under § 2254(d) of AEDPA, "if there is a 'decision

finally resolving the parties' claims, with res judicata effect,

that is based on the substance of the claim advanced, rather than

on a procedural, or other, ground.'" Teti v. Bender, 507 F.3d 50,

56-57 (1st Cir. 2007) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311

(2d Cir. 2001)). However, where petitioner raises a federal claim

during state proceedings that is not decided by the state court,

this court reviews that claim de novo. Horton v. Allen, 370 F.3d

75, 80 (1st Cir. 2004). After all, "we can hardly defer to the

state court on an issue that the state court did not address."

Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).

"AEDPA [also] sets out a separate and exacting standard

applicable to review of a state court's factual findings." Pike v.

Guarino, 492 F.3d 61, 68 (1st Cir. 2007). The state court's

factual finding are "presumed to be correct" unless the petitioner

rebuts this "presumption of correctness" with "clear and convincing

evidence." 28 U.S.C. § 2254(e)(1).

2. Procedural Default

The "independent and adequate state ground doctrine" is

also relevant to the claims and defenses before us. This doctrine

"applies to bar federal habeas when a state court declined to

address a prisoner's federal claims because the prisoner has failed

to meet a state procedure requirement." Coleman v. Thompson, 501

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U.S. 722, 730-31 (1991). Thus, where a claim was procedurally

defaulted by the petitioner in state court, we are barred from

reaching the merits of the claim unless the petitioner meets the

federal habeas standard for excusing the procedural waiver. See

id. at 750 ("In all cases in which a state prisoner has defaulted

his federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the claims

is barred unless [the default is excused]."). A procedural waiver

can be excused if "the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged violation

of federal law, or . . . a fundamental miscarriage of justice."

Id.

B. Waiver of Right to Conflict-Free Counsel

In his first claim, petitioner asserts that his Sixth

Amendment right to counsel was violated because he was represented

at trial by counsel who had a conflict of interest that petitioner

did not knowingly, intelligently and voluntarily waive. The

alleged conflict involves trial counsel's simultaneous

representation of a prosecution witness, the medical examiner, Dr.

Kessler, in an unrelated civil matter. Although all parties were

on notice of the conflict prior to the commencement of trial, and

the trial judge conducted an inquiry of the petitioner and obtained

petitioner's consent before permitting the representation to

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continue,4 petitioner argues that because his consent was not

knowing, intelligent and voluntary, as required to establish an

4
As set forth in the record, the inquiry proceeded as follows:

THE COURT: Yes Mr. Boateng, we are talking about [the
medical examiner] Dr. Kessler and the fact that your
lawyer represents him in a civil matter. Now he says
that he talked to you about that a couple of times.
DEFENDANT: Yes, Your Honor.
THE COURT: And that from the nature of this case, in
the way in which this case is going to be tried, that his
understanding of your position is the fact that he is
representing him in this civil matter, and that
represents, in a technical sense, a conflict of interest,
that your position is that you have no objection to his
representing you and having to question Dr. Kessler in
your behalf and the like, all of those questions that
surround that subject. Is that so?
DEFENDANT: Yes, Your Honor.
THE COURT: All right. Thank you.
....
THE COURT: I would just say this to you: – you can
stay where you are, Mr. Boateng - that you are always a
little bit concerned about situations where there is a
conflict of interest, because you can't always reach out
and deal with situations when you don't anticipate them,
when they happen in the course of a trial. Sometimes,
for example, a witness says something which you didn't
know about ahead of time, and its necessary for the
lawyer to take a rather forceful position with the
witness, for example, really cross-examine that witness.
So that when you deal with the situation in advance, like
we are here, and you say that you are agreeable to this
lawyer, under these circumstances acting as your lawyer,
you have to accept with that the fact that it's
conceivable something could happen while Kessler was
testifying that made his position, Kessler, and your
position, somewhat antagonistic. Do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: And you are agreeable to that?
DEFENDANT: Yes Your Honor.
THE COURT: Nevertheless, right?
DEFENDANT: Yes, Your Honor.

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effective waiver, the trial court violated his constitutional

rights in permitting the representation to go forward. He

challenges the validity of his waiver on two grounds, namely: (1)

that a combination of circumstances, including his mental illness,

the medications he was taking, discovering the conflict only upon

the eve of trial, and having not been provided the opportunity to

consult with conflict-free counsel in making the decision, rendered

his waiver involuntary; and (2) that the trial judge's colloquy,

which failed to produce a narrative response5 from him, was

inadequate as a matter of law to establish voluntariness.

The SJC heard this claim and rejected it on the merits,

finding that petitioner's waiver of the conflict was knowing and

intelligent, and that Yeboah-Sefah was not deprived of any

constitutional rights as a result of its acceptance:

On learning of the dual representation, the
trial judge conducted an inquiry of
[petitioner] to determine whether his decision
to continue with his trial counsel was
intelligently made. The judge asked
[petitioner] several questions in regard to
the potential conflict, and received
assurances that he found to be informed and
adequate. While the colloquy . . . did not
elicit the type of narrative responses for
which we expressed preference . . . this does
not mean it was inadequate. We are satisfied
that any deficiency in the colloquy as it

5
In objecting to the absence of a "narrative response,"
petitioner seems to suggest that the judge should have elicited an
explicit statement from petitioner, in so many words, that he has
been advised of his rights, understands his attorney's conflict of
interest and voluntarily waives his Sixth Amendment protections.

-14-
 appears in the transcript was due less to the
diligence of the judge in ensuring that the
decision was knowing and voluntary than to the
reticence of the defendant. [Petitioner]
knowingly and voluntarily assented to the dual
representation.

Boateng, 781 N.E.2d at 1217 (citations and footnote omitted).

Petitioner's claim regarding the validity of his waiver

of the right to conflict-free counsel was heard and adjudicated on

the merits by the SJC.6 Therefore, our review of that decision is

subject to the deferential AEDPA standard. 28 U.S.C. § 2254(d).

As the question of whether the petitioner made a knowing,

intelligent and voluntary waiver of his right to counsel in state

court is a "mixed question of law and fact" we review it under

§ 2254(d)(1)'s "unreasonable application" clause. See Williams,

529 U.S. at 409. Applying this standard, we hold that the SJC's

decision -- that the trial court's colloquy was adequate to

establish petitioner's knowing and voluntary waiver of his right to

conflict-free counsel -- did not involve "an unreasonable

6
The Commonwealth parses the petitioner's argument and asserts
that the first portion of the argument, that a combination of
circumstances surrounding petitioner's waiver rendered it
involuntary, was procedurally defaulted because it was untimely
raised in the course of state proceedings, and therefore, we are
precluded from even reaching it on habeas. See Walker v. Russo,
506 F.3d 19, 21 (1st Cir. 2007) ("Normally, the fact that a claim
is procedurally defaulted in state court is an adequate and
independent state ground precluding federal habeas relief").
However, petitioner responds that the Commonwealth has waived its
procedural default argument by failing to raise it before the
district court. See Pike, 492 F.3d at 72-73. In any event,
because we easily reject petitioner's claim on the merits, we need
not resolve this dispute.

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application" of "clearly established Federal law, as determined by

the Supreme Court." 28 U.S.C. § 2254(d)(1).

Under clearly established federal law as determined by

the Supreme Court, petitioner has a Sixth Amendment right to the

effective assistance of counsel that includes "a correlative right

to representation that is free from conflicts of interest." Wood

v. Georgia, 450 U.S. 261, 271 (1981). "Even where an actual

conflict exists," however, a defendant "may waive this conflict

. . . and elect to have the attorney continue representation, so

long as that waiver is knowing, intelligent, and voluntary."

United States v. Ross, 33 F.3d 1507, 1524 (11th Cir. 1994); see

also Brady v. United States, 397 U.S. 742, 748 (1970) ("[W]aivers

of constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the

relevant circumstances and likely consequences.").

The Supreme Court has held that the trial judge bears the

"serious and weighty responsibility . . . of determining whether

there is an intelligent and competent waiver by the accused," and

"must investigate as long and as thoroughly as the circumstances of

the case before him demand" before accepting the waiver.

Schneckloth v. Bustamonte, 412 U.S. 218, 244 & n.32 (1973) (citing

Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948)). However, this

obligation is generally and broadly stated, and there are no

clearly established Supreme Court decisions bearing directly on the

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constitutional requirements for an adequate conflict-waiver

colloquy. See 21A Am. Jur. 2d. Criminal Law § 1153 (2008) ("no

particular cautionary instruction or form [by court] is required to

ensure the validity of [defendant's] waiver" of right to counsel).

Rather, the Supreme Court offers only general guidance as to the

requirements for a voluntary waiver. See, e.g., Edwards v.

Arizona, 451 U.S. 477, 488 (1981) ("the determination of whether

there has been an intelligent waiver of right to counsel must

depend . . . upon the particular circumstances surrounding the

case, including the background, experience, and conduct of the

accused" (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).

Applying these general federal guidelines to the factual

determinations made by the Massachusetts court, we cannot conclude

that the SJC's decision that petitioner made a knowing and

intelligent waiver of his right to conflict-free counsel involved

an "unreasonable application" of federal law. Nor did the decision

involve an unreasonable determination of the facts in light of the

evidence. The SJC found that defense counsel discussed the matter

with the petitioner and the medical examiner prior to trial, and

all believed that the parallel representation in the civil case did

not create a conflict of interest. It also determined that on

learning of the dual representation the trial judge conducted an

inquiry of the petitioner to ensure that petitioner's decision to

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continue with his current trial counsel, despite the dual

representation, was intelligently and voluntarily made.

The judge's colloquy was conducted after petitioner had

been found competent to stand trial, and thus presumably capable of

making an intelligent decision to waive his rights. See Godinez v.

Moran, 509 U.S. 389, 399-400 (1993) (holding that the standard of

competency for waiving the right to counsel is the same as the

competency standard for standing trial). Moreover, the judge's

colloquy can reasonably be considered a thorough investigation

sufficient to render petitioner's waiver "knowing and voluntary" as

well, in that the trial judge made sure that petitioner was aware

of the potential conflict, directed petitioner's attention to the

possible negative implications of the dual representation, and

obtained the petitioner's verbal assent that he nevertheless wanted

his trial counsel to continue to represent him. See id. at 401

n.12 (distinguishing "competency" inquiry as relevant to whether

defendant has ability to understand, from "knowing and voluntary"

inquiry, designed to determine whether defendant actually does

understand the significance and consequences of a particular

decision and whether the decision is uncoerced). The inquiry did

not elicit the type of narrative responsive for which some lower

federal courts have expressed a preference. See, e.g., United

States v. García, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on

other grounds by Flanagan v. United States, 465 U.S. 259 (1984);

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but see, United States v. Hernández-Lebrón, 23 F.3d 600, 605 (1st

Cir. 1994) (finding adequate inquiry into waiver of conflict where

defendant answered "yes" to judge's inquiries, noting that "[w]e do

not require that defendants make narrative responses").

Nevertheless, as in Hernández-Lebrón, petitioner did clearly answer

in the affirmative, stating "Yes, Your Honor," to each of the

judge's questions. In any event, no Supreme Court precedent has

explicitly imposed a "narrative response" requirement, and thus,

such cannot constitute "clearly established law" for purposes of

§ 2254(d)(1).

Based on these facts, both the motion judge who

considered petitioner's new trial motion, as well as the SJC,

concluded that petitioner made a knowing and intelligent waiver of

the conflict. Given the generalized nature of the Supreme Court's

guidance on the subject, we are unable to conclude that the SJC

"unreasonabl[y] appli[ed] clearly established Federal law." Carey,

549 U.S. at 77; see also Yarborough v. Alvarado, 541 U.S. 652, 664

(2004) (noting that "[t]he more general the rule, the more leeway

courts have in reaching outcomes in case-by-case determinations").

C. Ineffective Assistance of Counsel

The Sixth and Fourteenth Amendments to the United States

Constitution afford a defendant the right to the effective

assistance of counsel in all state criminal prosecutions which may

result in the loss of his liberty. Strickland v. Washington, 466

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U.S. 668, 684 (1984). However, to establish constitutionally

ineffective assistance of counsel as a ground for federal habeas

relief, the petitioner bears a doubly heavy burden.

First, petitioner must satisfy the two-prong Strickland

standard for establishing constitutionally ineffective assistance

of counsel -- namely, "(1) deficient performance by counsel (2)

resulting in prejudice." Malone, 536 F.3d at 63 (citing Rompilla

v. Beard, 545 U.S. 374, 380 (2005)). "To establish that counsel's

performance was deficient, a defendant must show that it fell below

an objective standard of reasonableness under the circumstances."

Sleeper, 510 F.3d at 38 (citing Strickland, 466 U.S. at 687-88).

"[J]udicial scrutiny of counsel's performance must be highly

deferential," and "a reviewing court must not lean too heavily on

hindsight: a lawyer's acts and omissions must be judged on the

basis of what he knew, or should have known, at the time his

tactical choices were made and implemented." Ouber v. Guarino, 293

F.3d 19, 25 (1st Cir. 2002) (citing Bell v. Cone, 535 U.S. 685

(2002)). To establish that the deficiency was prejudicial,

defendant must show "that, but for counsel's unprofessional error,

there is a reasonable probability that the result of the proceeding

would have been different." Sleeper, 510 F.3d at 39 (citing

Wiggins v. Smith, 539 U.S. 510, 537 (2003)). In other words,

prejudice requires "a reasonable probability that, absent the

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errors, the factfinder would have had a reasonable doubt respecting

guilt." Strickland, 466 U.S. at 695.

Second, where the petitioner's claim was adjudicated on

the merits by the state court, as most of Yeboah-Sefah's

ineffective assistance claims were, petitioner must also satisfy

the AEDPA standard.7 Since an ineffective assistance of counsel

claim is a mixed question of law and fact, Strickland, 466 U.S. at

698, it is evaluated under the "unreasonable application" clause of

§ 2254(d). Williams, 529 U.S. at 409 (mixed questions are reviewed

under § 2254(d)(1)'s "unreasonable application" clause).

Therefore, in order to prevail, petitioner must demonstrate that

the state court's resolution of his ineffective assistance of

counsel claim resulted in a decision that involved an "unreasonable

application of clearly established Federal law." 28 U.S.C. § 2254

(d)(1). Because petitioner does not argue that the state court

extended or refused to extend Strickland to a new context, our

7
Petitioner argues that his federal ineffective assistance claim
was not adjudicated on the merits by the SJC because the SJC did
not address the claim under the two-prong Strickland standard.
However, the SJC reviewed petitioner's ineffective assistance of
counsel claim by asking "whether there was an error in the course
of the trial (by defense counsel . . . ) and, if there was, whether
that error was likely to have influenced the jury's conclusion."
Boateng, 781 N.E.2d at 1216 (quoting Commonwealth v. Wright, 584
N.E.2d 621 (Mass. 1992)). "Because this court has previously
determined that [the Wright] standard . . . 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). . . 'we will presume the federal law adjudication to be
subsumed within the state law adjudication.'" Sleeper, 510 F.3d at
39 (quoting Teti, 507 F.3d at 56).

-21-
ultimate inquiry, where the claim was "adjudicated on the merits,"

is whether the state court applied Strickland to the facts of

petitioner's case in an objectively unreasonable manner. Malone,

536 F.3d at 63. We will address each of petitioner's ineffective

assistance claims in turn.

1. Failure to Provide Conflict-Free Representation

Petitioner alleges that he was deprived of the effective

assistance of counsel because his trial counsel's conflict of

interest prevented counsel from aggressively challenging the

testimony of Dr. Kessler, the Commonwealth's medical examiner whom

counsel concurrently represented. Because his trial counsel

labored under an "actual conflict of interest" in representing him,

petitioner argues that prejudice is presumed and he is entitled to

relief without independent proof of prejudice as required under

Strickland. See Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980).

Alternatively, petitioner argues that he can show that the dual

representation adversely affected the representation because it

caused counsel to: (a) refrain from cross-examining Dr. Kessler

about the timing and cause of Jameel's death as aggressively as he

would have absent the conflict; and (b) refrain from calling

another expert witness to rebut Dr. Kessler's conclusion that

Jameel died as a result of multiple blunt traumatic injuries.8 As

8
At the evidentiary hearing on the motion for a new trial Yeboah-
Sefah called an expert, Dr. Ira Kanfer, who testified that while
the child suffered several other injuries, he felt that the cause

-22-
a result, petitioner contends that trial counsel failed to advance

a theory that Jameel died after the first blow, which, if pursued,

would have undermined the prosecution's theory of first degree

murder based on extreme atrocity and cruelty, of which petitioner

was ultimately convicted.

As a threshold matter, although petitioner has failed to

establish that his waiver of trial counsel's conflict was

involuntary or invalid, "under our precedent it would appear that

even a knowing acceptance by defendant of counsel's representation

despite a potential conflict of interest does not preclude a

showing, under the standard of Cuyler, that the conflict became

actual and had an adverse effect on representation." United States

v. Rodríguez-Rodríguez, 929 F.2d 747, 750 (1st Cir. 1991)(citations

omitted); see also United States v. Fahey, 769 F.2d 829, 835 (1st

Cir. 1985) ("Although we find that [petitioner] executed a knowing

and intelligent waiver of [counsel's] potential conflict of

interest, a waiver doesn't foreclose the possibility that an actual

conflict could adversely have affected the adequacy of

representation and violated [petitioner's] [S]ixth Amendment right

to counsel."). "However, '[if] a defendant has voluntarily chosen

to proceed with [a potential conflict] . . . it is fair, if he

later alleges ineffective assistance growing out of a conflict, to

require that he demonstrate that a conflict of interest actually

of death was "one blow" to the head, "which came first."

-23-
affected the adequacy of representation.'" Fahey, 769 F.2d at 835

(quoting Cuyler, 446 U.S. at 335 (Brennan, J., concurring)).

The SJC heard this claim and rejected it on the merits,

holding that the dual representation did not warrant a reversal of

the convictions because trial counsel's conflict of interest, was

"only potential, not actual." Boateng, 781 N.E.2d at 1217.9 In so

holding, the SJC distinguished a state case petitioner relied upon,

Commonwealth v. Hodge, 434 N.E.2d 1246 (Mass. 1982), in which the

SJC concluded that a defendant received ineffective assistance

because his trial counsel's law firm partner represented a key

prosecution witness in an unrelated civil proceeding. Here the SJC

noted that unlike in Hodge, where the conflict of interest caused

the conflicted attorney to refuse to present important evidence on

the defendant's behalf, it could not conclude, in this case, that

"trial counsel's representation of the medical examiner prevented

him from presenting important evidence on [petitioner's] behalf .

. . ." Boateng, 781 N.E.2d at 1218. Rather, the court "disagree[d]

that the circumstances [were] similar and that the evidence to

which [petitioner] now points would have assisted him." Id.

The SJC reasoned that to the extent that a more

aggressive cross-examination of Dr. Kessler or the rebuttal

9
The trial court, in rejecting petitioner's new trial motion also
found "that the potentiality of conflict never did metamorphose,
during trial, into an actual conflict." Boateng, 2000 WL 1481424
at *5.

-24-
testimony of Dr. Kanfer would have "present[ed] an alternative

'single blow' theory10 to rebut the conclusions of the medical

examiner," such testimony would not have assisted the petitioner in

defending against charges of "extreme atrocity or cruelty." This

is because, as a matter of Massachusetts law, even a single blow,

especially when directed against an infant, may support a finding

of extreme atrocity or cruelty. Id. (citing Commonwealth v.

O'Brien, 736 N.E.2d 841 (Mass. 2000)). Moreover, under

Massachusetts law, murder may be found to have been committed "with

extreme atrocity or cruelty" based on a jury's finding of any one

of the so-called Cunneen factors: defendant's indifference to the

victim's suffering, the degree of the victim's suffering, the

extent of the injuries, the number of blows, the manner and force

with which the wounds occurred, and the disproportion between the

means necessary to cause death and the force employed by the

defendant. See Commonwealth v. Cunneen, 449 N.E.2d 658, 665 (Mass.

1983). Given that the jury heard evidence that Yeboah-Sefah

"crushed [the baby's] skull, broke several of his ribs, and

seriously damaged his lungs," the SJC concluded that the jury had

"ample evidence" from which to make such a finding. Boateng, 781

N.E.2d at 1218. Further, the SJC found that "the medical

10
Petitioner's "single blow" theory is basically that despite
administering multiple blows to the baby, the baby may have died
from the first blow. Thus, the additional blows did not result in
additional suffering during the remainder of the attack, detracting
from the atrocity or cruelty of the murder.

-25-
examiner's testimony regarding the cause of death was peripheral to

[petitioner's] defense of insanity," and in fact, based on trial

counsel's testimony at the hearing on the new trial motion,

"aspects of the medical examiner's testimony, . . . including the

ghastliness of the killing, that supported the defense theory of

insanity." Id.

We find that § 2254(d)(1) of AEDPA applies to

petitioner's claim that his trial attorney provided ineffective

assistance of counsel due to a conflict of interest because the SJC

heard and adjudicated this claim on the merits.11 Analyzing that

decision through the lens of AEDPA, we are unable to conclude that

the SJC "appli[ed] [Supreme Court] precedents to the facts in an

objectively unreasonable manner." Brown v. Payton, 544 U.S. 133,

141 (2005). Under "clearly established Federal law, as determined

by the Supreme Court," 28 U.S.C. § 2254(d)(1), an ineffective

assistance claim normally requires demonstrating "prejudice," i.e.

a "reasonable probability that, but for counsel's unprofessional

11
Petitioner argues that the SJC failed to address petitioner's
federal constitutional claim on the merits because it applied its
own conflict of interest law, established in Hodge, 434 N.E.2d
1246, to the claim rather than a federal standard and therefore, we
must review this claim de novo. However, Hodge is premised on a
Massachusetts constitutional standard governing conflicts of
interest expressly held to be more favorable to defendants than
federal law. See Teti, 507 F.3d at 56-57. "[W]here state law is
explicitly more favorable to defendants than the federal standard,
we will presume the federal law adjudication to be subsumed within
the state law adjudication." Id. at 56 (quotation marks omitted).
Therefore, deference under AEDPA applies to petitioner's claim.

-26-
errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. If however, "the defendant

demonstrates that counsel 'actively represented conflicting

interests' and that 'an actual conflict of interest adversely

affected his lawyer's performance,'" then Strickland's stricter

prejudice showing does not apply. Id. at 692-93 (quoting Cuyler,

446 U.S. at 348); see United States v. Segarra-Rivera, 473 F.3d

381, 385 n.2 (1st Cir. 2007) (distinguishing claims alleging

counsel performed incompetently, which require showing of

prejudice, from claims showing that counsel labored under "actual

conflict of interest," which may entitle petitioner to "relief

without regard to proof of prejudice"). Under the standard

delineated by the Supreme Court, however, a "mere theoretical

division of loyalties" is not itself, contrary to petitioner's

contentions, an "actual conflict of interest." Mickens v. Taylor,

535 U.S. 162, 171 (2002). Rather, a potential division of

loyalties rises to the level of an "actual conflict" only where

defendants shows that the conflict "actually affected the adequacy

of his representation." Id.; see also United States v. Newton, 326

F.3d 253, 264 (1st Cir. 2003) ("adverse performance is the

touchstone of Sixth Amendment error under the Supreme Court's

actual conflict-of-interest jurisprudence . . ."). "Showing an

adverse effect . . . requires more than mere speculation." United

-27-
States v. DeCologero, 530 F.3d 36, 77 (1st Cir. 2008).12 Rather,

"some adverse action or inaction is required that can be traced to

the conflict in loyalty." United States v. Burgos-Chaparro, 309

F.3d 50, 53 (1st Cir. 2002).

Here, the SJC determined that trial counsel presenting

the "single blow" theory, through questioning of Dr. Kessler or by

calling a separate pathologist, would not have helped petitioner's

defense, and thus, petitioner had failed to establish that the dual

representation adversely affected the adequacy of representation.

In light of the overwhelming evidence of brutality present on the

record, it was certainly reasonable to conclude that any testimony

elicited from Dr. Kessler or another expert, that in fact the first

of petitioner's numerous blows to the baby was of sufficient force

as to be fatal, would not cause a reasonable juror to doubt whether

the murder was atrocious or cruel. The SJC, thus, logically held

that counsel's alleged conflict of interest did not rise to the

level of an actual conflict of interest.

We cannot conclude that the SJC's decision constituted an

unreasonable application of Federal law.

12
As this court has interpreted the "adverse effect" requirement,
the defendant "must show that [the attorney] might plausibly have
pursued an alternative defense strategy, and that the alternative
strategy was in conflict with, or may not have been pursued because
of, [the attorney's] other loyalties or interests." DeCologero,
530 F.3d at 77 (quoting United States v. Ramírez-Benítez, 292 F.3d
22, 30 (1st Cir. 2002))(alterations in original).

-28-
 2. Failure to Elicit Opinion from Government Witness
With Respect to Extreme Atrocity or Cruelty

Petitioner further alleges that his trial counsel

rendered constitutionally deficient performance by failing to

elicit testimony, on cross-examination, from the Commonwealth's

psychologist, Dr. Whaley, regarding petitioner's capacity to

appreciate the atrocity or cruelty of his actions. In an affidavit

submitted by Dr. Whaley, after trial, in support of petitioner's

new trial motion, Dr. Whaley states that he believed that

petitioner's "mental illness prevented him from being able to

mentally appreciate that he was acting with extreme atrocity or

cruelty when he killed his son." Although Dr. Whaley testified at

trial as to petitioner's diminished capacity to premeditate -- a

defense to the other theory of murder of which he was acquitted --

Dr. Whaley was not asked, and thus did not testify to his

conclusions regarding the effect of petitioner's diminished

capacity upon his subjective ability to appreciate atrocity and

cruelty. Petitioner argues that trial counsel's failure to elicit

that opinion prejudiced petitioner in fact because such testimony

would have been a colorable defense to charges of first degree

murder based on the theory of extreme atrocity or cruelty, of which

he was ultimately convicted.

The government asserts that this claim, which petitioner

raised for the first time in an addendum to his second new trial

motion, was rejected by the state court based on an adequate and

-29-
independent state procedural ground, and thus, federal habeas

review is barred. See Walker, 506 F.3d at 21 ("Normally, the fact

that a claim is procedurally defaulted in state court is an

adequate and independent state ground precluding federal habeas

relief."). As "[i]t is customary to address the procedural default

issue on habeas first," Lynch, 438 F.3d at 47 n.10, we will begin

by considering whether Yeboah-Sefah's claim regarding ineffective

assistance based on the failure to elicit this particular opinion

from Dr. Whaley was denied by the Massachusetts court based on an

"independent and adequate" state procedural ground. We concluded

that it was.

This federal claim was raised by petitioner for the first

time in petitioner's second new trial motion in 2005, which was

denied by the trial court. Petitioner appealed the denial and the

claim was ultimately disposed of in a memorandum decision by a

single justice of the SJC pursuant to Massachusetts' "gatekeeper

statute," on the ground that the motion did not raise a "new or

substantial" issue for the court.13 Boateng, No. SJ-2006-0021, at

4. An issue is not "new" for purposes of the statute if it could

13
Under Massachusetts' "gatekeeper statute", judicial review of
the denial of a post-conviction motion in a first degree murder
case is prohibited unless permitted at the discretion of a single
justice of the SJC "on the ground that it presents a new and
substantial question which ought to be determined by the full
court." Mass. Gen. Laws ch. 278, § 33E. Because Yeboah-Sefah was
convicted of murder in the first degree, his state appeals from the
denial of state collateral attacks on his conviction after his
direct appeal were governed by § 33E.

-30-
have been addressed at trial or on direct review, had the defendant

properly raised it there. See Commonwealth v. Ambers, 493 N.E.2d

837, 839 (Mass. 1986) (explaining that § 33E "requires that the

defendant present all his claims of error at the earliest possible

time, and failure to do so precludes relief on all grounds

generally known and available at the time of trial or appeal"). We

hold that the single justice's decision to deny full SJC review of

petitioner's claim under § 33E is based on a state procedural

waiver, namely, his failure to raise that claim in prior state

proceedings, and therefore, rests on an independent and adequate

state ground for decision. See Coleman, 501 U.S. at 729-30.

This court has previously held, on facts similar to those

before us, that a "gatekeeper" justice's denial of a petition for

collateral review on the ground that the federal claim raised

therein was not "new and substantial," pursuant to § 33E,

constitutes an independent and adequate state ground for decision.

See Simpson v. Matesanz, 175 F.3d 200, 206 (1st Cir. 1999). At

least "[w]here there has been procedural waiver below," the denial

of review under § 33E qualifies as an independent and adequate

state ground. Id., cf. Phoenix v. Matesanz, 189 F.3d 20, 25-26

(1st Cir. 2000) (finding that denial of review by gatekeeper

justice on grounds that petitioner's ineffective assistance claim

was "not substantial" (although new), reached the merits of the

-31-
federal claim, and thus could not be treated as being grounded in

state law) (emphasis added).

The single justice who considered petitioner's § 33E

petition found that this particular ineffective assistance claim,

which was raised for the first time in petitioner's second new

trial motion, was "not new or substantial," within the meaning of

the statute. Noting that "[a]n issue is not 'new' under the

statute 'if it could have been addressed at trial or during a

previous appeal,'" Boateng, No. SJ-2006-0021 at 4 (citing

Commonwealth v. Rudolph, 780 N.E.2d 58, 64 n.7 (Mass. 2002)), the

justice reasoned that because "the essential factual basis of this

second motion for new trial was spread upon the pages of the 2003

[SJC] decision [on petitioner's direct appeal], the questions

raised here 'could' have been addressed in that appeal." Id. at 5.

Although the gatekeeper justice briefly discussed the merits of

petitioner's waived claim in determining that it was also "not

substantial," the decision primarily rested on the determination

that the claim was not "new," based on a procedural waiver below,

which serves as an independent and adequate procedural basis. See

Phoenix, 189 F.3d at 26 n.2 (noting that "it does not undercut the

adequacy and independence of the state grounds" if the single

justice found a procedural default, but then briefly reviewed the

merits of a claim for miscarriage of justice under state law).

Thus, we are persuaded that the state court decision rejecting

-32-
petitioner's claim of ineffective assistance of trial counsel

rested on adequate and independent state procedural grounds.

Finding procedural default, we are precluded from

reaching the merits of the claim unless petitioner can show "cause

for the default and actual prejudice as a result of the alleged

violation of federal law." Lynch, 438 F.3d at 45 (citing Coleman,

501 U.S. at 750); see also Walker, 506 F.3d at 21 (discussing

grounds upon which procedural default can be excused). To the

extent that Yeboah-Sefah makes a cursory attempt to attribute

"cause" to the ineffective assistance of his prior post-conviction

counsel, this argument is easily dismissed. Deficiency by counsel

rising to the level of constitutionally ineffective assistance

under Strickland can serve as cause to excuse the procedural

default of another habeas corpus claim. See Edwards v. Carpenter,

529 U.S. 446, 451 (2000).14 However, to the extent that petitioner

superficially makes such a claim, he fails to develop it properly,

and in any event, has not exhausted it by raising it in the state

courts. See Lynch, 438 F.3d at 46 (explaining that any ineffective

14
Alternatively, a lesser error by counsel can also serve as
"cause" for procedural default, but "must ordinarily turn on
whether the prisoner can show that some objective factor external
to the defense impeded counsel's efforts to comply with the State's
procedural rule," such as, for example, the "factual or legal basis
for a claim [not being] reasonably available to counsel," or "some
interference by officials." Murray v. Carrier, 477 U.S. 478, 488
(1986) (internal citations omitted). Petitioner alleges no such
external impediments to the inclusion of this claim in his initial
new trial motion.

-33-
assistance claim must be itself exhausted before it may be used to

excuse a procedural default of another federal claim). As

petitioner has failed to excuse his procedural default,

"[c]onsiderations of comity and federalism bar the federal court's

review." Simpson, 175 F.3d at 206. (internal quotation marks

omitted).

3. Failure to Call Promised Mental Health Expert

Petitioner further alleges that his trial counsel's

performance was constitutionally deficient in failing to present

the testimony of a particular psychologist, Dr. Paul Spiers,

despite "promising" the jury in his opening that both

"[p]sychologists and psychiatrists" would testify in support of

petitioner's insanity defense. This failure prejudiced him,

petitioner argues, because Dr. Paul Spiers, a psychologist who

examined him, would have provided petitioner with his only defense

to charges arising from the assault upon Alecia Moore.

Specifically, unlike Dr. Rosemarin, who testified regarding Yeboah-

Sefah's diminished mental capacity at the time of the attack on

Jameel but was unable to form an opinion regarding petitioner's

mental state during the attack on Moore, Dr. Spiers had concluded

and could have testified that petitioner lacked criminal

responsibility for his actions on October 25, 1992 with respect to

his assaults on both Alecia and Jameel. Therefore, Yeboah-Sefah's

trial counsel's unreasonable failure to call Dr. Spiers, in breach

-34-
of his promise to the jury, constituted deficient performance that

prejudiced the defense.

The SJC heard this claim and rejected it on the merits,

holding that trial counsel's failure to call Dr. Spiers "was not a

manifestly unreasonable tactical decision on trial counsel's part."

Boateng, 781 N.E.2d at 1220. The court reasoned that because Dr.

Spiers' diagnosis regarding Yeboah-Sefah's condition conflicted

with Dr. Rosemarin's and Dr. Whaley's, Dr. Spiers' testimony had

the potential to confuse the jury, and thus, was reasonably

omitted.15 Id. at 1219-1220. The SJC also held that there was no

prejudice as a result of the decision, noting that "while Dr.

Spiers' testimony might have provided [Yeboah-Sefah] with a more

complete defense in the sense that he was of the opinion that

[Yeboah-Sefah] was not criminally responsible for either of the

attacks on Jameel or Moore, it is unlikely that the jury, who

rejected [Yeboah Sefah's] insanity defense as a defense to the

murder of Jameel, would have accepted it regarding the assault on

Moore that occurred just before." Boateng, 781 N.E.2d at 1220. We

15
The SJC found, in contrast to Dr. Rosemarin, that Dr. Spiers
"testified to a different diagnosis of [Yeboah-Sefah's] condition,"
namely, that Yeboah-Sefah, in a recent trip abroad, had been
exposed to a virus that caused "encephalitis and seizures," and
that he "was suffering from one of these seizures on the day of the
attacks." Boateng, 781 N.E.2d at 1219. Accordingly, the SJC
concluded that Dr. Spiers' testimony "could certainly have confused
a jury that had, until that point, heard fairly consistent
testimony that [Yeboah-Sefah] suffered from a different serious
mental condition," and that trial counsel "elected not to call [Dr.
Spiers] in an effort to avoid this confusion." Id. at 1220.

-35-
find that this decision was not an unreasonable application of

Strickland.16

The SJC, however, did not explicitly address petitioner's

claim that it was the failure to call Dr. Spiers in light of

counsel's "promise" to do so in his opening statement that rendered

his performance ineffective. In other words, despite the pros and

cons of calling Dr. Spiers, petitioner argues that counsel's

"failure to follow through" was itself deficient. See Anderson v.

Butler, 858 F.2d 16, 17 (1st Cir. 1988) (noting that "little is

more damaging than to fail to produce important evidence that had

been promised in an opening"). Because the state court was

presented with, but did not expressly resolve this portion of

petitioner's claim, we assume, without deciding, that de novo

review applies. See Fortini, 257 F.3d at 47 (holding that

preserved federal constitutional claims that were "never addressed

by the state courts" would be reviewed de novo on habeas).

Applying Strickland de novo, we are unable to conclude that trial

16
In so holding we consider various factual determinations made
by the trial court in petitioner's first new trial motion, which,
under AEEDPA, we presume to be correct. 28 U.S.C. § 2254(e)(1);
see also Teti, 507 F.3d at 58. The court determined that trial
counsel's decision to present the insanity defense through Dr.
Rosemarin rather than Dr. Spiers was grounded upon "Dr. Rosemarin's
more defense-supportive diagnoses, his abstention from reliance on
the improbable evidence of hallucination, and his more extensive
familiarity with the defendant's circumstances." Moreover, defense
counsel believed that "Dr. Spiers' testimony might contradict the
opinions of Dr. Rosemarin, thus undermining the defense of NGI."
Boateng, 2000 WL 1481424 at *3.

-36-
counsel's reference to "psychologists and psychiatrists" in his

opening statement coupled with the failure to call a particular

psychiatrist deprived petitioner of the effective assistance of

counsel.

"This court . . . has invalidated convictions because of

broken promises [in an opening statement]." Sleeper, 510 F.3d at

40 (citing Anderson, 858 F.2d 16; United States v. González-

Maldonado, 115 F.3d 9 (1st Cir. 1997); and Ouber, 293 F.3d 19).

However, considering trial counsel's reference to "psychologists

and psychiatrists" in the context of the record, we find that the

statement did not contain an explicit promise that the defense

would call both psychiatrists and psychologists to the stand, let

alone a specific promise to call Dr. Spiers.17 Rather, counsel told

the jury that "[p]sycholgists and psychiatrists will talk about the

medical affects [sic] of [Yeboah-Sefah's] medication" upon him, and

that the jury would "hear testimony by experts" during the course

17
Counsel's statement, in relevant context proceeded as follows:

You will hear evidence about how that medication affects
[Yeboah-Sefah] and how it makes him look in front of you
as he sits here today. Psychologists and psychiatrists
will talk about the medical affects [sic] of that
medication, what they do to a person's mind and how they
make that person appear to others.
[Yeboah-Sefah] was seen by psychiatrists, psychologists
after the incident, seen by those retained by [the
prosecutor] . . . You will hear testimony by experts
during the course of this trial as to their assessment
of [Yeboah-Sefah's] level of capacity at the time of the
incident on October 25, 1992.

-37-
of [the] trial assessing petitioner's capacity. Thus, the only

actual "promises" made by counsel therein were not in fact broken.

Over the course of the trial, jurors did in fact hear the testimony

of both a psychiatrist (Dr. Rosemarin) and a psychologist (Dr.

Whaley) regarding the effects of petitioner's medications upon him

and his mental capacity at the time of the crime.

Even if counsel's statement could be construed as an

implied promise that the defense would call a psychologist, it

still would not amount to the kind of specific, significant and

dramatic promise upon whose breach our case law supports

invalidating a conviction. "[O]ur cases that premise a habeas writ

on an unfulfilled promise during opening argument generally require

greater specificity in the promise and greater contemporaneousness

between the promise and jury deliberations." Phoenix, 233 F.3d at

85.18 In this case, the "promise," which was made in an opening

statement six days before the end of trial, can hardly be

considered contemporaneous with the jury's deliberations. Cf.

Anderson, 858 F.2d at 17 (finding ineffective assistance of counsel

where the jury began deliberating the following day after counsel's

18
In Phoenix we rejected an ineffective assistance claim on
habeas, holding that the failure to grant new trial based on
unfulfilled promise in opening that "if anything, tests will show
that . . . some of the blood that was on the bag . . . could not
have been the blood of [the victim]" was not unreasonable, as
promise was not "dramatic" and omitted testimony was not
"strikingly significant." See 233 F.3d at 85 (ellipses in
original).

-38-
opening, in which counsel promised to present a defense based on

expert testimony that he never produced). Moreover, a general

statement that jurors would hear from "psychiatrists and

psycholgists" can hardly be construed as specific. Although

petitioner attempts to characterize the statement as a promise to

call a particular psychologist, Dr. Spiers, that proposition is

unsupported by the record.19

19
Petitioner claims that this case is indistinguishable from our
precedents in Anderson and Ouber. We disagree. In Ouber, we found
deficient performance under Strickland where defense counsel, in
his opening statement, "promised, over and over, that the
petitioner would testify and exhorted the jurors to draw their
ultimate conclusions based on her credibility," but ultimately
advised the defendant against testifying. 293 F.3d at 28. In that
case, we found that "the lawyer structured the entire defense
around the prospect of the petitioner's testimony," which he
ultimately omitted. Id. Ouber is clearly distinguishable from this
case, where defense counsel made a single reference in his opening
to "psychiatrists and psychologists," though the latter was not
ultimately called by the defense. Likewise, in Anderson, we found
deficiency and prejudice under Strickland where trial counsel
failed to call any expert witnesses during first-degree murder
trial, despite promising to call both a psychiatrist and
psychologist in his opening statement the previous day. Anderson,
858 F.2d at 17. In that case, the court characterized the promise
as "dramatic" and the indicated testimony "strikingly significant,"
id., and stated that the chosen course of action could not have
been a "strategic choice," as the "there could be nothing to gain"
from so proceeding. Id. at 19. Unlike in Anderson, where the
entire mental incapacity defense promised was essentially abandoned
as a result of the breach, in this case the testimony of one
additional psychologist can hardly be classified as "strikingly
significant" given that several other mental health experts did
testify regarding petitioner's mental capacity. Moreover, in this
case, unlike in Anderson, as the record indicates, the decision to
not call Dr. Spiers, can fairly be characterized as a "strategic
choice" on the part of counsel to not confuse the jury with
conflicting testimony.

-39-
 We find that counsel was not "professionally

unreasonable" and thus, not ineffective in withholding the

testimony of Dr. Spiers, despite the statements made in his

opening. See Strickland, 466 U.S. at 691. Petitioner, therefore,

cannot satisfy Strickland, and we must reject this claim.

4. Failure to Challenge Admissibility of Pre-
Trial Statements to Civilians and Police

Petitioner further alleges that his counsel provided

ineffective assistance in failing to challenge, on voluntariness

grounds, the admissibility of Yeboah-Sefah's pre-trial statements

to Moore, Moore's mother, and to the police in the immediate

aftermath of the crime.20 Petitioner alleges that the statements

to Moore and Hall were involuntary, while the statements to police

were also inadmissible because petitioner, due to his mental

illness, could not provide a knowing and intelligent waiver of his

Miranda rights. Petitioner asserts that counsel's failure to

challenge the admission of these statements was prejudicial because

the Commonwealth relied on the statements, to show that petitioner

20
Petitioner challenges the admission of his statement on the
phone to Hall that "Moore was out doing laundry" when Hall called
asking to speak to Moore. He also challenges his statement that he
"wasn't going to jail," made in Moore's presence, after hearing the
knock at the door and proceeding to go into the bathroom and drink
bleach. As for the statements to police, petitioner challenges his
statements made to officers on the scene, after being read and
agreeing to waive his Miranda rights, in which he admits to beating
Moore and Jameel.

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could think rationally at the time of the incident, which

undermined his insanity defense.

The parties dispute whether this claim was "adjudicated

on the merits" so as to give rise to deference under § 2254(d)(1).

This is not entirely clear. While the SJC adjudicated petitioner's

related argument regarding the trial court's failure to conduct a

suppression hearing sua sponte,21 it did not directly address

whether counsel was ineffective in failing to request one. The

ineffective assistance claim was however, addressed in a lower

state court decision, in which the trial court judge denied

21
Petitioner makes a related claim that he is entitled to habeas
relief because, despite counsel's failure to request a hearing on
the admissibility of petitioner's statements to Moore, her mother
and police, the trial court violated his Due Process and Equal
Protection rights by failing to hold a voluntariness hearing sua
sponte. However, federal law, in contrast to Massachusetts law,
imposes no obligation on courts to conduct a voluntariness hearing
sua sponte. Compare Wainwright v. Sykes, 433 U.S. 72, 86 (1977)
("Constitution does not require a voluntariness hearing absent some
contemporaneous challenge to the use of the confession"), with
Commonwealth v. Harris, 358 N.E.2d 982, 988 (Mass. 1976) (holding
that to prevent miscarriage of justice "trial judge has a
responsibility-independent of a request by defense counsel" to
order voir dire on the voluntariness of a confession). "Ordinarily
a federal court may not issue a writ 'based on a perceived error of
state law.'" Brown v. Maloney, 267 F.3d 36, 44 (2001) (quoting
Pulley v. Harris, 465 U.S. 37, 41 (1984)). "[A]lthough there may
be an exception if an error of state law could be sufficiently
egregious to amount to a denial of equal protection or of due
process of law," we cannot say that the state court's failure to
apply its own rule in this case "rose to the level of a deprivation
of due process where the federal rule governing the same situation
would not require [relief]." Id. (internal citations omitted).

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petitioner's first new trial motion.22 While the SJC did, in a

footnote, cite to the trial court on this issue, it did not

explicitly adopt the trial court's conclusion. See Boateng, 781

N.E.2d. at 1214 n.5. As our sister circuit has recognized, "it is

not clear whether an adjudication on the merits by a trial court,

which is neither explicitly affirmed on the merits nor explicitly

rejected by the appellate court, is sufficient to trigger AEDPA

review." DeBerry v. Portuondo, 403 F.3d 57, 68 (2d Cir. 2005)

(explicitly declining to decide the question). However, as in

DeBerry, we need not decide this question on the facts of this case

because, even reviewing the claim de novo, we are unable to

conclude that trial counsel's failure to challenge the

admissibility of petitioner's pre-trial statements satisfies the

"prejudice" prong of Strickland. See Sleeper, 510 F.3d at 39.

As for petitioner's claim regarding statements to Moore

and Hall, we cannot discern any "reasonable probability" "that the

22
In rejecting petitioner's new trial motion, the trial court
concludes as follows:

The court finds no evidence that TDC's election not to
seek exclusion of defendant's statements was manifestly
unreasonable. TDC did not attempt to suppress
defendant's statements because he thought such a motion
was unlikely to succeed and because he thought that
suppressing or diminishing the effect of defendant's
admissions would probably serve only to erode his
insanity defense. Those decisions were not manifestly
unreasonable.

Boateng, 2000 WL 1481424, at *8.

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outcome of the trial would have been different" had defense counsel

objected to their admission given the unlikelihood that such

objection would have succeeded. Under Massachusetts law,

statements to private parties contemporaneous with a criminal act

are not subject to voluntariness analysis. See Commonwealth v.

LaCava, 783 N.E.2d 812, 822 n.12 (Mass. 2003). As the SJC

concluded, it had "no trouble deciding that [petitioner's]

statements to Moore and her mother occurred during the commission

of the crimes." Boateng, 781 N.E.2d at 1214 n.3 (emphasis added).

In light of this opinion, rendered by the ultimate authority on

questions of Massachusetts law, it is fair to conclude that any

attempt by counsel to object to the admission of the statements

made to these private individuals would have been fruitless, and

thus, no prejudice resulted from the failure to do so.

We are also persuaded that trial counsel's failure to

seek suppression of petitioner's statements to the police in the

aftermath of the incident did not prejudice the petitioner. At the

hearing on petitioner's first new trial motion, trial defense

counsel testified in defense of his trial tactics. On the basis of

said testimony, the trial court made several factual findings

relevant to the instant claim to which, even when reviewing the

legal issues de novo, we are nevertheless required to defer. See

28 U.S.C. § 2254(e)(1) (requiring that a state court's factual

finding be "presumed to be correct" unless the petitioner rebuts

-43-
this presumption by "clear and convincing evidence"); accord

Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (finding that "state

court's determinations on the merits of a factual issue are

entitled to a presumption of correctness on federal habeas review,"

and further noting that "a state court's conclusion regarding a

defendant's competency is entitled to such a presumption"). Those

findings were as follows:

1. The evidence adduced at the Rule 30
hearings was not persuasive that defendant was
incompetent, by reason of his mental
condition, voluntarily to utter statements and
to waive his Miranda rights.
2. The statements defendant uttered, both
with and without Miranda compliance,
rationally tended to support his
determination, at trial, to pursue the defense
that he was not guilty by reason of insanity
("NGI").
. . .
6. TDC determined that the evidence of
defendant's admissions was not harmful to,
and, indeed, supported the defense theory of
NGI. Accordingly, he did not seek to suppress
that evidence or otherwise exclude it from
evidence. So too, his determination not to
call upon medical professionals to challenge
the voluntariness of defendant's admissions
was founded upon his view that, were he to
succeed in suppressing or diminishing the
effect of the admissions, he would most
probably accomplish only an erosion of his NGI
defense. He wanted some of the statements,
such as the threats against Alecia, to come
into evidence to bolster the NGI defense; he
did not want to reveal certain information
about defendant's mental state in advance of
trial; and, in any event, he believed that a
challenge to voluntariness was, on the facts,
unlikely to succeed. In sum, counsel,
resolved, as a tactical choice, to support the

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 NGI theory with defendant's admissions and
insanity-evocative conduct.

Boateng, 2000 WL 1481424 at *2-3. Based on these findings, as well

as our own review of the record, we are persuaded that trial

counsel's failure to challenge the admissibility of petitioner's

statements to police as either involuntary or obtained through an

invalid waiver of his Miranda rights, did not prejudice the

petitioner within the meaning of Strickland.

First, any attempt by counsel to suppress the statements

likely would have failed. Even where Miranda warnings and

procedures are adhered to, if petitioner's waiver of his Fifth

Amendment privilege was not in fact knowing and intelligent, the

subsequently made statements would be subject to suppression. See

Dickerson v. United States, 530 U.S. 428, 444 (2000). But "[w]hile

the fact that a defendant was given Miranda warnings does not

"dispense with the voluntariness inquiry," the "cases in which a

defendant can make a colorable argument that a self-incriminating

statement was 'compelled' despite the fact that the law enforcement

authorities adhered to the dictates of Miranda are rare." Id.

Petitioner here does not claim that the warnings and

procedures required by Miranda were breached by the police.

Moreover the trial court made a factual finding, entitled to a

presumption of correctness under § 2254(e)(1), that the evidence

showed petitioner to be sufficiently competent to accomplish a

voluntary waiver of his Miranda rights. Boateng, 2000 WL 1481424

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at *2. These facts, along with petitioner's calm demeanor

following the incident when the challenged statements were made,

and the absence of any evidence of police coercion or intimidation,

collectively suggest that it was quite unlikely that counsel would

have actually succeeded in suppressing the statements had he

endeavored to do so. See United States v. Guerrero, 114 F.3d 332,

338 (1st Cir. 1997) (discussing factors relevant to voluntariness

determination).

Secondly, although petitioner argues that he was

prejudiced by the admission of his statements to police officers,

in that the prosecution relied on them to negate his insanity

defense, it appears that what was most prejudicial about those

statements was not their substance (after all, it was never

disputed that petitioner committed the criminal acts), but the

calm, rational manner in which he made them. But even if the

statements were suppressed, the testimony of police officers as to

their observations of petitioner's calm demeanor after the incident

would nevertheless likely be admissible and probative on the

question of sanity, thereby undermining any claim of prejudice from

the admission of the statements themselves. See United States v.

LeRoy, 944 F.2d 787 (10th Cir. 1991)(lay opinion as to person's

sanity is admissible if witness has observed his conduct). Thus,

to the extent that petitioner's statements constituted evidence

adverse to his insanity defense, we are convinced that they

-46-
constituted peripheral circumstantial evidence that could not have

had a decisive effect on the jury's verdict. Moreover, the trial

court's issuance of a "humane practice" instruction, whereby the

jury was specifically instructed to determine independently whether

petitioner's statements were voluntary before considering them as

evidence of guilt, further reduces the risk of adverse effect from

trial counsel's failure to move for the suppression of petitioner's

statements to police on voluntariness grounds.23 As petitioner

cannot establish prejudice as required under Strickland, this

ineffective assistance claim must fail.

5. Failure to Request Second Competency Hearing

Finally, petitioner contends that his trial counsel's

failure to request a second competency hearing on the day of trial

renders his representation constitutionally defective. He asserts

that under Massachusetts law, the court is required to hold an

23
Petitioner makes a separate ineffective assistance of counsel
claim based on trial counsel's failure to object to the "humane
practice" jury instruction. Petitioner argues that the instruction
was incomplete because while it instructed the jury to determine
whether petitioner's statements were voluntary before considering
them, it failed to inform the jury that the Commonwealth had the
burden of proving voluntariness beyond a reasonable doubt. See
Commonwealth v. Grenier, 615 N.E.2d 922, 926 (Mass. 1993).
Petitioner alleges that he was prejudiced by this failure because
the absence of "beyond a reasonable doubt" language increased the
likelihood that the jury would consider the statements. For mainly
the same reasons that we find that counsel's failure to challenge
the admission of the statements themselves did not prejudice the
petitioner, we also find non-prejudicial counsel's failure to
object to the jury instruction regarding the circumstances under
which the jury could consider those statements.

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evidentiary hearing on the defendant's competency to stand trial

when there arises a "substantial question of possible doubt" about

the defendant's competence, see Commonwealth v. Hill, 375 N.E.2d

1168, 1170-71 (Mass. 1978), and that such doubt existed in this

case. However, a competency hearing had taken place on

February 24, 1994, just five days before the start of trial. At

that hearing a forensic psychologist testified that defendant was

"competent to stand trial," an opinion which the court adopted.

Thereafter, trial counsel advised the court that he was waiving a

previously-filed motion for a second competency hearing. The judge

responded, "I am satisfied, unless someone tells me that there has

been a change of circumstances." Trial counsel responded that he

was "unaware of any since [the holding of the competency hearing]

last week." As a result, the court made no further competence

inquiry.

This claim was heard and adjudicated on the merits by the

SJC, and therefore, deference under AEDPA applies. See 28 U.S.C.

§ 2254(d). The SJC concluded that counsel's performance was not

deficient, reasoning that petitioner had "presented no evidence

whatsoever to contradict trial counsel's statement to the court on

the first day of trial that [petitioner's] condition had not

changed in the intervening week." Boateng, 781 N.E.2d at 1219.

Thus, the court concluded that "[t]here were no grounds on which to

-48-
request a new hearing, and trial counsel's decision not to request

one was not error." Id.

While "clearly established" federal law provides that a

significant change in circumstances in the midst of trial may

render a second competency hearing proper, see Drope v. Missouri,

420 U.S. 112, 181 (1975), there is no evidence of any such

circumstances present on these facts, and thus, no indication that

trial counsel failed to exercise "reasonable professional judgment"

in not requesting a subsequent hearing. Strickland, 466 U.S. at

690. Thus, we cannot say that the SJC applied Strickland in an

objectively unreasonable manner in finding a lack of deficiency in

counsel's performance.

D. Court's Failure to Conduct Second Competency Hearing

In his final claim petitioner alleges that the trial

court violated his constitutional right to due process of law

because it failed to conduct a competency hearing sua sponte on the

first day of trial or anytime thereafter, despite there being doubt

regarding his competency. As with the related ineffective

assistance claim, the SJC rejected this argument on the merits,

reasoning that a trial judge is required to conduct a sua sponte

inquiry only if a "substantial question of possible doubt" as to

competence arises. Boateng, 781 N.E.2d at 1213. But here, "[o]n

the first day of trial, trial counsel withdrew his previously filed

motion for a competency hearing as moot, and informed the judge

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that nothing had occurred within the past week to warrant a new

inquiry." Id. The court concluded that "[i]n these circumstances

there was no substantial question that required the judge's sua

sponte action." Id.

It is clearly established by Supreme Court precedent that

"the criminal trial of an incompetent defendant violates due

process." Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). Due

process also requires a court to give "proper weight to the

information suggesting incompetence which [comes] to light during

trial," and hold a competency hearing sua sponte in the event that

such evidence is brought to its attention. See Drope, 420 U.S. at

179 (holding that further inquiry on competency was required where

petitioner's suicide attempt, during the course of trial, raised

sufficient doubt as to competence). In this case, however,

petitioner was determined to be competent a week prior to trial and

no evidence was brought to the attention of the court indicating

that its earlier competence determination needed to be revisited.

We cannot say on these facts that the SJC's decision rejecting

petitioner's claim was anything less than a reasonable application

of federal law.

Therefore, this claim, and all of petitioner's claims for

relief, must fail.

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 III. Conclusion

For the foregoing reasons, we affirm the denial of this

petition for habeas corpus.

Affirmed.

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