Pina v. Maloney

United States Court of Appeals
For the First Circuit

No. 07-1267

STEPHEN PINA,

Petitioner,

v.

MICHAEL MALONEY, ET AL.,

Respondents.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* U.S. District Judge]

Before

Boudin, Farris,** and Howard,
Circuit Judges.

Emanuel Howard for petitioner.
Annette C. Benedetto, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief,
for respondents.

May 11, 2009

*
Of the Southern District of New York, sitting by designation.
**
Of the Ninth Circuit, sitting by designation.
 HOWARD, Circuit Judge. Stephen Pina was convicted of

first-degree murder by a Massachusetts jury. After direct and

collateral review in the state courts, he filed a petition for

habeas corpus review in federal district court, claiming among

other allegations that his trial counsel was ineffective because he

failed to call an alibi witness. The district court denied all of

the claims presented in Pina's habeas petition, concluding in

particular that habeas review of the ineffective assistance claim

was barred because Pina defaulted on the claim in state court

pursuant to an independent and adequate state procedural rule.

We granted a certificate of appealability on the question

of whether Pina's competency claim is procedurally defaulted.

Although we cannot endorse the district court's procedural default

ruling, we nevertheless affirm the denial of Pina's habeas

petition, as the ineffective assistance of counsel claim plainly

fails on the merits.

I. Facts

"We take the facts as recounted by the Massachusetts

Supreme Judicial Court decision affirming [Pina's] conviction,

supplemented with other record facts consistent with the SJC's

findings." Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009)

(quotation omitted).

On February 26, 1993, Keith Robinson was murdered. The

murder occurred around 9 p.m. and took place in a public area in

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the Mission Hill area of Boston, Massachusetts. Robinson was shot

a number of times at close range.

After an investigation, the police arrested Pina for the

murder. At his trial, the state called witnesses who: (i)

developed Pina's potential motive for the murder, which related to

drug dealing; (ii) placed him at the murder scene on the day of the

murder; and (iii) identified Pina as the murderer. Among the

witnesses called was police officer James O'Loughlin, who patrolled

the Mission Hill area and was familiar with Pina. O'Loughlin

testified that on the day of the murder, he saw Pina in the area

both before and after the murder occurred. He also testified that

two days after the murder, Pina told him that although he may have

been near the murder scene on the day of the murder, he was not the

shooter. Also testifying for the state were two persons who

witnessed the murder -- Tim Hall and Debra Rocher Annas. Both

identified Pina as the shooter. The jury found Pina guilty and he

was sentenced to life imprisonment.

II. Post-Conviction Proceedings

Following Massachusetts state procedure, see Mass. Gen.

Laws ch. 278, § 33E, Pina directly appealed his conviction to the

SJC. In his appeal, represented by new counsel, Pina advanced a

host of claims. He did not, however, claim that his trial counsel

provided him ineffective assistance.

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 After the SJC affirmed his conviction, Pina filed, pro

se, a new trial motion. Later, this time with the assistance of

counsel, he filed an addendum to this new trial motion. In the

addendum, Pina claimed that his trial counsel provided him

ineffective assistance because he failed to present an alibi

defense. This defense would have relied on the testimony of

Tomorrow Vailes, Pina's fianceé at the time of trial. Pina claimed

that Vailes informed his counsel that she was willing to testify

that Pina was with her when Robinson was killed. Although included

on the trial witness list by Pina's counsel, Vailes was never

called to testify.1

Although Pina identified Vailes as an alibi witness in

the addendum to the new trial motion, he failed to attach an

affidavit detailing the substance of her proposed testimony. The

court relied on that omission in denying the motion. With respect

to the ineffective assistance claim, the court observed that,

without an affidavit, "the court cannot assess whether Vailes would

have provided an alibi for [Pina] at the time of the Robinson

murder." The court also denied Pina a new trial based on the other

claims that he advanced in his new trial motion.

1
The portions of the state court record that have been provided
to us do not contain any indication one way or the other whether
the prosecutor, pursuant to Mass. R. Crim. P. 14, requested that
the defendant file a pre-trial notice of alibi.

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 Subsequently, Pina petitioned a single gatekeeper justice

of the SJC for leave to appeal the denial of his new trial motion

to the full SJC.2 In his petition, Pina again argued, inter alia,

that his trial counsel was ineffective because he failed to call

Vailes as an alibi witness. The gatekeeper justice denied Pina's

petition, stating with respect to the ineffective assistance of

counsel claim: "I base my denial specifically on . . . the waiver

of the defendant's claim of ineffective assistance of counsel."

Pina then filed the instant petition for a writ of habeas

corpus in federal district court, again claiming ineffective

assistance based on his counsel's failure to call Vailes. He also

requested an evidentiary hearing on this claim. The district court

concluded that Pina had procedurally defaulted this claim, based on

the fact that the single gatekeeper justice had ruled that the

claim was waived. Consequently, the district court denied Pina's

requests for an evidentiary hearing and habeas relief, and this

appeal followed.

2
In a capital case where a new trial motion is denied after the
SJC has affirmed the conviction on direct appeal, "the petitioner
must apply to a single 'gatekeeper' justice of the SJC for leave to
appeal to that court, and 'no appeal shall lie . . . unless the
appeal is allowed by a single justice . . . on the ground that it
presents a new and substantial question which ought to be
determined by the full court.'" Currie v. Matesanz, 281 F.3d 261,
263 (1st Cir. 2002) (citing Mass. Gen. Laws ch. 278, § 33E).

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 III. Discussion

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

novo, Yeboah-Sefah, 556 F.3d at 65, and its decision to not hold an

evidentiary hearing for an abuse of discretion. Teti v. Bender,

507 F.3d 50, 60 (1st Cir. 2007).

"Habeas review in a federal court is available as to a

claim adjudicated on the merits in State court proceedings, but

only in instances affecting or involving clearly established

federal" law. Phoenix v. Matesanz, 189 F.3d 20, 24 (1st Cir. 1999)

(quotations omitted); see also 28 U.S.C. § 2254(d). It follows

that where a state court has denied the claim on an independent and

adequate state-law ground, whether procedural or substantive,

federal habeas review is barred, in the absence of some exceptions

not relevant here. See id.; see also Cone v. Bell, No. 07-1114,

slip. op. at 15-16, 556 U.S. ___ (April 28, 2009).

A. Procedural Default

The gatekeeper justice determined that Pina waived the

ineffective assistance of counsel claim. The initial question

posed, then, is whether the waiver ground relied on by the

gatekeeper constituted a procedural default that established an

adequate and independent ground for the state court decision. See

Coleman v. Thompson, 501 U.S. 722, 736 (1991) ("[F]ederal habeas

courts must ascertain for themselves if the petitioner is in

custody pursuant to a state court judgment that rests on

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independent and adequate state grounds."). The focus here is on

the "adequate" component, as the gatekeeper "clearly and expressly"

relied on Pina's procedural default to dispose of the competency

claim. See Harris v. Reed, 489 U.S. 255, 266 (1989) (applying the

rule that the state court judgment must clearly and expressly rest

on the prisoner's failure to comply with the state procedural rule

to be considered sufficiently independent to bar habeas review)

(citing Michigan v. Long, 463 U.S. 1032, 1041 (1983)).3

The gatekeeper justice's summary treatment of Pina's

ineffective assistance claim stated only that, "I base my denial

specifically on . . . the waiver of the defendant's claim of

ineffective assistance of trial counsel." The state argues that

there were two distinct procedural defaults; it contends that

either one is an adequate ground to foreclose habeas review. These

alleged procedural defaults are: (i) Pina's failure to raise the

competency claim in his direct appeal to the SJC and (ii) his

failure to comply with Massachusetts Rule of Criminal Procedure

30(b) when he filed his new trial motion.4

3
In addition to the waiver ruling, the single justice noted with
respect to the merits that trial counsel's decision not to call the
alibi witness was a tactical one.
4
Specifically, the state argues that Pina failed to comply with
Mass. R. Crim. P. 30(b) by not attaching to his new trial motion an
affidavit detailing Vailes's proposed testimony.
Rule 30 encompasses all motions for post conviction relief,
including motions for a new trial. Subsection (c)(3) of Rule 30
provides:

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 An objective assessment of the record suggests that is it

is likely that the gatekeeper justice considered Pina's competency

claim to be waived because he failed to raise it on direct appeal.

The state had argued waiver to the gatekeeper on that sole ground

-- Pina's failure to file an ineffective assistance claim on direct

appeal. The state never argued to the single justice that Pina had

waived his claim because he failed to attach an affidavit to his

new trial motion. In context, the gatekeeper justice's waiver

determination is better viewed as referring to Pina's failure to

raise his competency claim on direct appeal.5

To be considered an "adequate" ground to bar habeas

review, the state procedural rule that is the basis for a

Affidavits. Moving parties shall file and serve and
parties opposing a motion may file and serve affidavits
where appropriate in support of their respective
positions. The judge may rule on the issue or issues
presented by such motion on the basis of facts alleged in
the affidavits without further hearing if no substantial
issue is raised by the motion or affidavits.

Mass. R. Crim. P. 30(c)(3).
5
Additionally, in the federal district court, the state
represented that the gatekeeper's "waiver" ruling was based on
Pina's failure to pursue his competency claim on direct appeal. In
its response to Pina's request that the district court hold an
evidentiary hearing on his ineffective assistance claim, the state
claimed that any evidentiary hearing would be futile because of
Pina's procedural default in state court. In identifying the
relevant procedural default, the state wrote: "[T]he Single
Justice . . . denied the gatekeeper petition on the ground inter
alia that the claim of ineffective assistance of trial counsel was
deemed 'waived' by the motion judge since it was not presented on
direct appeal and in the absence of any showing of ineffective
assistance of appellate counsel." (emphasis added).

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procedural default ruling must be regularly and consistently

enforced by the state courts. Gunter v. Maloney, 291 F.3d 74, 79

(1st Cir. 2002); see also Smith v. Texas, 550 U.S. 297, 313 (2007)

(using terms "regularly applied and well-established").

We are not persuaded that the procedural rule apparently

relied on by the gatekeeper justice has been regularly and

consistently applied by the Massachusetts courts. Even in cases

where an ineffective assistance claim may feasibly be raised on

direct appeal, such as cases in which the claim does not require

additional factual development, the SJC has declined to adopt an

iron-clad rule of waiver. Commonwealth v. Zinser, 847 N.E.2d 1095,

1097 n.2 (Mass. 2006) ("We do not decide whether a defendant waives

even a claim of ineffective assistance resolvable on the trial

record alone by failing to raise it on direct appeal."). And the

SJC has stated on numerous occasions its preference that a

defendant assert a competency claim in a motion for a new trial

rather than on direct appeal. See, e.g., id. at 1096 n.1;

Commonwealth v. Peloquin, 770 N.E.2d 440, 446 n.5 (Mass. 2002);

see also Commonwealth v. McCormick, 717 N.E.2d 1029, 1031 (Mass.

App. Ct. 1999) ("Both the Supreme Judicial Court and this court

have long and consistently observed that claims of ineffective

assistance of counsel, at least in the first instance, should be

advanced in the context of a motion for a new trial.") (citations

omitted); cf. English v. Cody, 146 F.3d 1257 (10th Cir. 1998).

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 Accordingly, we are not prepared to conclude that Pina

procedurally defaulted his ineffective assistance of counsel claim.

We do not foreclose, however, the possibility based on further

insight into Massachusetts law that there are circumstances under

which such claims may be viewed as procedurally defaulted when not

raised on direct appeal.

B. Merits

Having decided the precise issue on which we allowed the

certificate of appealability, we could at this point remand this

case to the district court to permit it to analyze the merits of

Pina's competency claim. See, e.g., Leyva v. Williams, 504 F.3d

357 (3d Cir. 2007); Moormann v. Schriro, 426 F.3d 1044 (9th Cir.

2005); St. Pierre v. Cowan, 217 F.3d 939 (7th Cir. 2000). Doing

so, however, would be a pointless exercise, given the record in

this case.

"[W]e may affirm the district court's denial of habeas

relief on any ground made manifest by the record." Pike v.

Guarino, 492 F.3d 61, 71 (1st Cir. 2007) (citations omitted). The

record includes not only the facts necessary to decide this case,

but also Pina's habeas petition in which he argues the merits of

his ineffective assistance claim. There is nothing to be gained

through further development of the record or the arguments.

Although in some instances a claim that counsel was

incompetent cannot be decided without evidence of counsel's own

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thinking, often the reasonableness of counsel's challenged actions

is apparent from the face of the record, and many such claims are

resolved on this basis. Nor in this court has petitioner argued

that the district court needed to have an evidentiary hearing, a

choice that is often up to the district judge although constrained

in some instances by statutory restrictions. See 28 U.S.C. § 2254

(e) (2); Williams v. Taylor, 529 U.S. 420, 437 (2000).6

As we do not believe that the question whether there was

ineffective assistance in this case is a close one that would

benefit from layered judicial scrutiny, we will examine the merits

of Pina's competency claim. See Judd v. Haley, 250 F.3d 1308,

1318-19 (11th Cir. 2001). Although the gatekeeper did comment

briefly on the merits, for the sake of economy we will by-pass the

threshold question of whether there has been a state court merits

adjudication. In the absence of a state merits determination, the

more deferential habeas review under the Antiterrorism and

Effective Death Penalty Act is inapplicable and our review is de

novo. Horton v. Allen, 370 F.3d 75, 80 (1st Cir. 2004) (citing

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

6
Pina speculates that his counsel failed to call Vailes because
he had "completely forgotten about [her]." But Pina's addendum to
his new trial motion in state court effectively conceded that his
counsel -- who had in fact listed Vailes as a potential witness and
cannot conceivably have "forgotten" about her -- had made a
considered judgment not to call her.

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 To establish ineffective assistance of counsel, the

defendant must satisfy both a performance prong and a prejudice

prong. Strickland v. Washington, 466 U.S. 668, 687 (1984); Malone

v. Clarke, 536 F.3d 54, 63-64 (1st Cir. 2008). Specifically, the

defendant must prove both (1) that counsel's performance fell below

an objective standard of reasonableness (viz., "that counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment"); and (2) that

counsel's deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687-88.

In considering counsel's performance, we "must indulge a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the

challenged action 'might be considered sound trial strategy.'" Id.

at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955));

Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (describing our

review of counsel's performance as "highly deferential").

Pina claims his counsel was deficient because he failed

to call Vailes as an alibi witness during his trial. During the

collateral state court proceedings, Vailes provided an affidavit

detailing the substance of her proposed testimony. In the

affidavit, she stated that Pina arrived at her apartment the day

before the murder. She also stated that when she left for school

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on the morning of the day of the murder, Pina was in bed, and that

when she returned to her apartment, he was still in bed and

appeared never to have left. Vailes further stated that Pina was

with her continuously at her apartment in Dorchester, Massachusetts

from 1:30 p.m. on the day of the murder until the afternoon of the

next day. The murder occurred in the Mission Hill area of Boston,

Massachusetts during that window of time -- specifically, around

9:00 p.m on February 26. Pina's counsel met with Vailes before

trial and was aware both of her willingness to testify and what her

testimony would have entailed. Although he placed Vailes on the

witness list, Pina's counsel chose to not call her.

"[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable." Strickland, 466 U.S. at 690. Because Pina

concedes that his counsel was aware of both Vailes and the

substance of her proposed testimony, he faces a high hurdle in

challenging his counsel's performance.

Given the case put on by the state, Pina's counsel

provided effective assistance in choosing to forgo an alibi defense

and instead to focus the defense on the issue of identification.

In its opening statement, the state told the jury that it would put

on a witness -- Officer O'Loughlin -- who would testify that on the

day of the murder he saw Pina in the Mission Hill area both before

and after the murder occurred and that Pina admitted to being in

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the area on that day. The state also told the jury that two

witnesses, Hall and Annas, would testify that they had witnessed

the murder and that Pina was the shooter.

As represented, the state called these witnesses.

O'Loughlin testified that he observed Pina near the murder scene

mere hours before the murder and that, immediately after the

shooting, he witnessed an individual matching Pina's description

fleeing the murder scene. He also testified that two days after

the murder, Pina voluntarily visited him at the police station to

discuss the investigation. Although Pina initially denied being in

the Mission Hill area on the day of the shooting, when O'Loughlin

told Pina that he had seen him there Pina replied, "Maybe I was

there, but I didn't shoot anybody."

Although the two eyewitnesses called by the state

testified generally as the state had claimed they would, their

accounts of the murder were slightly varied. In particular,

although Hall testified that he had been standing within hand-shake

distance of the victim when he was murdered, the other eyewitness,

Annas, testified that she saw only one person near the victim --

Pina. Additionally, Hall testified that Pina wore a red jacket

whereas Annas testified that Pina wore black or dark clothing.

Under these circumstances, counsel's decision to pursue

a defense of misidentification, rather than an alibi defense, can

only be viewed as a reasonable, tactical decision. An alibi

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defense came with inherent risks. Given that Pina was never

scheduled to testify (nor has he alleged at any point that he was

prepared to), the success or failure of the defense would have

hinged almost solely on the testimony of a plainly interested

witness -- Vailes, who was Pina's fianceé at the time of trial.

See Davis v. Alaska, 415 U.S. 308, 316 (1974) ("The partiality of

a witness is subject to exploration at trial, and is always

relevant when discrediting the witness and affecting the weight of

his testimony."). As Vailes's testimony would have contradicted

both Officer O'Loughlin's testimony and Pina's own effective

admission that he was in the Mission Hill area on the day of the

shooting, it was certainly reasonable for trial counsel not to call

Vailes for fear she would not be believed. See Horton, 370 F.3d at

86-87 (concluding that counsel's decision not to call potential

alibi witnesses was "legitimate trial strategy" because the

"proposed testimony would have conflicted with [the defendant's]

own version of events").

A defense focused solely on the potential

misidentification of Pina as the murderer, on the other hand, was

consistent with Pina's presence at the scene on the day of the

shooting and avoided potentially damaging contradictions. It also

carried an added advantage: it focused the jury's attention on

weaknesses in the eyewitness testimony. Both of the state's

eyewitnesses viewed the murder from close range yet they gave

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slightly varied descriptions of the shooter and arguably

conflicting accounts of the murder itself. Pina's counsel

emphasized this during his closing argument. See Lema v. United

States, 987 F.2d 48, 54 (1st Cir. 1993) (concluding that where the

government's case was "relatively weak . . . [r]easonably competent

trial counsel might well have determined that the best prospect for

acquittal lay in discrediting the government's witnesses").

In any event, even if reasonable minds could disagree

about what defense strategy would have been best in this case --

one premised on misidentification, alibi, or some combination

thereof -- "the proper standard for [measuring] attorney

performance is that of reasonably effective assistance," as guided

by "prevailing professional norms" and consideration of "all the

circumstances" relevant to counsel's performance. Strickland, 466

U.S. at 688. As the Supreme Court has observed, "[t]here are

countless ways to provide effective assistance in any given case."

Id. at 689. All things considered, Pina's counsel provided

reasonably effective assistance here.

The denial of Pina's habeas petition is affirmed.

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