United States Court of Appeals
For the First Circuit
No. 19-2104
JASON STRICKLAND,
Petitioner, Appellant,
v.
COLETTE GOGUEN, Superintendent, NCCI Gardner,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Ira L. Grant and the Committee for Public Counsel Services,
for the appellant.
Maura Healey, Attorney General of Massachusetts, and Susanne
G. Reardon, Assistant Attorney General, for the appellee.
June 30, 2021
THOMPSON, Circuit Judge. A jury convicted petitioner
Jason Strickland of multiple counts of assault and battery on his
step-daughter Haleigh Poutre who was eleven years old when the
final attack landed her near death in the hospital.1 After
Massachusetts' state courts denied Strickland's appeals, he
migrated to the United States District Court for the District of
Massachusetts, seeking a writ of habeas corpus via 28 U.S.C. § 2254
as amended by the Antiterrorism and Effective Death Penalty Act
(AEDPA). Strickland alleged violations by the trial court of his
constitutional rights "to present a complete defense" and to have
effective assistance of counsel, and the district court denied his
petition. See Strickland v. Goguen, No. 16-cv-11364-ADB, 2019 WL
4675031, *1 (D. Mass. Sept. 25, 2019). Before us, Strickland
repeats those claims. After careful consideration and mindful of
AEDPA's strict requirements, we affirm.
Background
In scrutinizing a state conviction on habeas review
pursuant to AEDPA, we accept the state court's factual findings.
See Dorsica v. Marchilli, 941 F.3d 12, 14 (1st Cir. 2019) (quoting
Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014)). If the
Supreme Judicial Court of Massachusetts, the Commonwealth's
1 Although the record does not reflect this, Haleigh survived
the injuries. See Kaitlin Goslee, Haleigh Poutre, 10 Years Later,
WWLP 22 News (May 11, 2015, 6:00 PM)
https://www.wwlp.com/news/haleigh-poutre-10-years-later.
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highest court, has declined to review the conviction, then we can
rely upon the "'last reasoned decision' issued by the Massachusetts
Appeals Court" (MAC) in crafting the factual and procedural
narrative. Id. (quoting King v. MacEachern, 665 F.3d 247, 252
(1st Cir. 2011)). We do so here, supplementing with facts from
the record where appropriate. See Companonio v. O'Brien, 672 F.3d
101, 104 (1st Cir. 2012) (citing Yeboah-Sefah v. Ficco, 556 F.3d
53, 62 (1st Cir. 2009)). A heads-up to the reader, the details of
what unfolded are disturbing.
The Abuse
The MAC starts its recitation of the story at the
end: "When . . . Haleigh Poutre arrived at the hospital on
September 11, 2005, she was unconscious and barely breathing, her
pale, emaciated body was covered in bruises and huge burns."
Commonwealth v. Strickland, 23 N.E.3d 135, 138 (Mass. App. Ct.
2015). Her "face was bloody, bruised, and distorted," and "the
back of her head was swollen, lacerated, and bleeding." Id. In
trying to save Haleigh's life, doctors described her head as
"boggy" because of the amount of blood pooling in her skull. Id.
at 139. She could barely breathe, her vital signs hovered around
death (her body's core temperature was only eighty-one degrees),
and she was both unconscious and unresponsive. See id. Additional
signs such as fixed pupils and "postur[ed]" limbs "signal[ed] a
traumatic brain injury." Id. Doctors also discovered evidence of
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other abuse. Haleigh bore injuries on her wrists consistent with
wearing restraints, cigarette burns covered her left foot and left
arm, lacerations scarred her buttocks, and "other injuries of
varying age [covered her] from her head to her toes." Id. at 139
& n.3.
Haleigh's injuries occurred over the course of years,
but we will start with the traumatic head injury, which brought
her to the hospital and which spurred the police to investigate
Strickland. At the time she sustained the brain injury Haleigh
lived with her adoptive mother Holli Strickland (who also happened
to be Haleigh's maternal aunt) and her stepfather Strickland. See
id. at 140.
According to eyewitness testimony from Holli's
biological daughter (let's call her J),2 on September 10, 2005,
the day before Haleigh's hospitalization, the Stricklands kicked
Haleigh down the basement staircase. See id. And this was not
the first time. See id. Alicia Weiss -- the Stricklands' neighbor
and sometimes babysitter, and Holli's close friend -- testified to
observing Holli kick Haleigh down the basement stairs repeatedly
in 2005, forcing Haleigh to unfurl herself from the floor at the
bottom and return to the top where she suffered the routine over
and over. Although, according to Weiss, Strickland was not present
2 Because J was only twelve when she testified at trial, we
refrain from using her full name.
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for this earlier staircase abuse, J testified that sometime in the
afternoon or early evening of September 10 (one of the
Commonwealth's experts at trial estimated that the injury occurred
around 4 P.M.) Strickland participated in the stair-kicking
torment. Id. at 139-40. While Haleigh was sprawled on the
basement floor, J remembered Strickland then shaking Haleigh at
the bottom of the stairs to rouse her before next carrying her
limp body upstairs, initially putting her into an empty bathtub on
the first floor and then placing her into bed.3 See id. at 140.4
Instead of getting medical help for Haleigh that
evening, Strickland went to the mall with J and J's younger brother
around 7 or 8 P.M.5 See id. at 140-41. The following afternoon
(September 11) the family went to J's soccer game where they met
up with Haleigh's uncle. Id. at 141. While the rest of the family
was out, Weiss babysat Haleigh, who remained in bed. Id. Weiss
3 J could not remember precisely when she saw the abuse. She
testified that she had played a soccer game before it happened and
that Strickland carried Haleigh upstairs before her bedtime.
4 Indeed, when the police searched the Stricklands' home
following Haleigh's hospitalization, they found "holes,
indentations, and small brown blood stains on the walls of the
stairway leading to the basement. Blood stains were also located
on three walls of the basement playroom area, as well as in the
first-floor bathroom." Strickland, 23 N.E.3d at 140. Forensic
tests of the blood "match[ed] Haleigh's blood." Id.
5 Holli was the biological mother of both J and her younger
brother. Strickland was the biological father only of J's younger
brother, who was two years old in 2005.
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checked on Haleigh three times, seeing "some foam on Haleigh's
mouth," but "Haleigh neither moved nor woke up." Id. When the
family returned, it was Haleigh's uncle who brought the child down
from her room and insisted Holli take Haleigh to the hospital where
the doctors assessed her traumatic brain injuries; by then it was
around 2:30 P.M. Id. At trial, whereas the defense put on evidence
that Haleigh hurt herself by landing on her head after a failed
backflip attempt and that her brain could not have suffered such
trauma from falling down the stairs, see id. at 141-42, the
Commonwealth's experts confirmed that stairs could create such
harm to a person pushed with "significant external force[], such
as a [strong] push or kick of the child at the top," id. at 139.
Of course, a fall could not have caused the extensive
injuries Haleigh endured, as described by the Commonwealth's
expert over the course of "almost one hundred pages of [trial]
transcript." Id. at 139 n.3. As for the other injuries, J
testified that "she had seen Holli and Strickland hit Haleigh with
their hands, a belt, and a baseball bat, and that she saw scabs
and bruises all over Haleigh." Id. at 140. During their search
of the Stricklands' home, police recovered a "Leatherman tool"6
and a baseball bat from the home; the Leatherman had "brownish
6 A "Leatherman tool," according to Strickland's testimony,
is something that has different attachments in the handle, like
knives, a screwdriver tool, and a corkscrew.
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material on it . . . indicat[ing] a mixture of blood" for "which
Haleigh was a potential contributor." The "aluminum bat" had
"Haleigh's name on it." Id. Weiss told the jury that Holli beat
Haleigh's lower legs with the bat while Strickland aided Holli in
interrogating the child about such crimes as hiding candy wrappers.
Id. at 141. Weiss and one of J's friends also testified to seeing
Strickland: strike Haleigh on the hand with a "plastic tubular
wand;" drag Haleigh into the house by the ear and slam her into a
chair; take Haleigh into a bathroom with Holli "after which a
muffled cry was heard and Haleigh emerged with a bloody lip;" and
striking Haleigh "in the head with his hand." Id. at 141.
In July 2006, a Commonwealth grand jury indicted
Strickland on multiple counts of assault and battery against a
child causing substantial injury.7 The first two counts charged
Strickland under Massachusetts General Laws ch. 265, § 13J(b) for
the September 10, 2005 stair incident (count 1) and for an
unspecified injury or injuries prior to September 11 (count 2).
The crime contains two theories of guilt. A conviction can be
obtained for a defendant's actual assault and battery causing
substantial bodily injury to a child, or, under the second theory,
7 Holli was also arrested for child abuse. After being
released on bail and before she or Strickland was indicted, Holli
was found dead along with her adoptive mother on September 22,
2005. It was apparently a murder-suicide. See Strickland, 2019
WL 4675031, *1 n.1.
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a conviction can be obtained for a defendant "wantonly or
recklessly permitting, or wantonly or recklessly permitting
another to commit [such] an assault and battery." Mass. Gen. Laws
ch. 265, § 13J(b). Additionally, Strickland faced three counts of
assault and battery by means of a dangerous weapon: bat (count 3);
shod foot (count 4); and tubular wand or stick (count 5). See id.
at § 15A(b). Finally, the indictment charged Strickland with
general assault and battery for striking Haleigh with his hand
(count 6). See id. at § 13A.
The Trial
At trial, the defense argued Strickland was oblivious to
what he had come to understand was the reality of Holli's abusive
behavior. Before September 10, 2005, his wife told him (and he
said he believed) that Haleigh was abusing herself. See id. at
141-42. In support of his claim of innocence, Strickland called
to the stand Pamela Krzyzek, a health professional who visited the
family's home to check on Haleigh on behalf of Massachusetts'
Department of Social Services.8 She "testified that Haleigh told
8 Holli convinced the agency, now known as the Department of
Children and Families, see Strickland 23 N.E.3d at 145 n.13, to
remove Haleigh from the home of her biological mother (Holli's
sister) when Haleigh was four years old because, as Holli and
Haleigh told the agency, Haleigh's mother and boyfriend were
sexually abusing the child. Shortly following Haleigh's
hospitalization, Holli's ex-husband told the agency that Holli had
both invented the sexual abuse and coached Haleigh on what to say
to the agency. Apparently, Holli and her ex-husband had gone
through a miscarriage and Holli wanted Haleigh as her own daughter.
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[Krzyzek] she heard voices telling her to hurt herself and that
[Haleigh] had hit her [own] knees with a hammer." Id. at 141.
Another witness aiding Strickland's story of ignorance was a
mother, Stephanie Trent Adams, whose children attended daycare at
the Stricklands' home (Holli ran a daycare for some time). She
testified on several key points: Strickland worked during the day;
she had witnessed Haleigh "punching herself, and hitting her[self]
against the wall of a cubby;" she saw Haleigh "stair-surfing,"
which, as best as the record shows, is a game in which children
slide down stairs on their behinds step-by-step. Id. Strickland
eventually took the stand reiterating his defense theory. He
denied any wrongdoing, and stressed he had "believed Holli when
she told him that Haleigh was injuring herself and was receiving
treatment for this condition" and he put forward that "[o]nly Holli
would take Haleigh to these [doctors'] appointments and would speak
with the medical providers." Id. at 141-142. He also stated he
enjoyed Haleigh's company, hugged her often, and treated her like
a biological daughter.
Strickland, in addition, wanted Haleigh's medical
providers to testify to their belief that Haleigh was self-
abusive.9 Id. at 142. Alongside their testimony, Strickland
9 Specifically, the medical providers were Haleigh's
pediatrician (Dr. Rukmini Kenia), nurse practitioner (Susan
Malloy), therapist or social worker (Carol Fields), and
psychiatrist (Dr. Frank Gatti). Because the differentiation does
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sought to introduce medical records reflecting that the medical
providers regularly saw Haleigh from at least 2001 until September
2, 2005 -- indeed, almost weekly in 2004 and 2005 -- and that they
treated Haleigh for self-abuse after "observ[ing] bruises and
burns." Id. The witnesses and medical records would, defense
counsel argued, "corroborate [Strickland's] belief" that he "had
no reason to protect [Haleigh] because he thought it was self-
abuse, so did the doctors, so did everybody else." Id. Defense
counsel contended the providers' states of mind -- what they
believed about Haleigh's medical condition -- would help
Strickland overcome the jury's likely skepticism that he did
nothing wrong. See id. at 142-43.
In the MAC's factual summation, it described
Strickland's evidentiary trial proffer as the "novel use of medical
testimony and reports to buttress" his contention that "he
reasonably believed Holli when she told him that Haleigh's injuries
resulted from self-abuse, and that he reasonably concluded that
Haleigh was being appropriately treated by medical professionals,
and that he therefore did not need to take additional actions to
protect her." Id. at 143. The trial judge, the MAC noted, was
unpersuaded. He excluded the evidence because, in part, he deemed
not matter for our analysis and because Strickland's brief does
not distinguish them, we refer to them collectively as "medical
providers."
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the evidence irrelevant to Strickland's defense since the excluded
testimony and medical records could only illustrate the medical
providers' beliefs, not Strickland's.10
The jury convicted Strickland of five of the six counts
brought by the Commonwealth. For counts 1 (the stair-kicking) and
2 (assaults causing substantial injury before September 11), the
jury found Strickland guilty of "wantonly or recklessly
permitting, or wantonly or recklessly permitting another to commit
[such] an assault and battery." Mass. Gen. Laws ch. 265, § 13J(b).
For the first two counts, the jury did not convict Strickland of
actually abusing Haleigh, but they did convict him for his actual
abuse of Haleigh on counts 3 (bat), 5 (tubular wand), and 6
(hand).11 Strickland, 23 N.E.3d at 138.
Strickland's Appeals and Petitions
The MAC explained that while Strickland's trial was in
process Haleigh's legal guardian filed a civil suit against
Haleigh's medical providers, including Krzyzek. Krzyzek hired two
10The trial judge also concluded Strickland offered the
evidence for the impermissible purpose of corroborating Holli's
and Haleigh's inadmissible hearsay statements to the medical
providers. See Strickland, 23 N.E.3d at 143. The judge had
permitted a limited range of hearsay statements from Holli and
Haleigh concerning the source of Haleigh's injuries to come through
Strickland's testimony, but that was the limit of his allowance.
11The jury acquitted Strickland of count 4, which, as a
reminder, was assault and battery by means of a dangerous weapon
(shod foot).
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experts, Dr. Robert Chabon and social worker Beth Wechsler who
each filed a report concluding that "Holli presented a case of
[Munchausen Syndrome by Proxy (MSBP)] and that in the circumstances
neither Krzyzek nor her employer reasonably could have been
expected to determine that Haleigh was the victim of child abuse."
Id. at 150. Mothers presenting MSBP harm "someone else, often a
child," to gain attention as a loving caretaker. Id. at 149. They
manipulate and lie to convince those with some responsibility for
caring for the child (such as medical providers or government
agencies) that there is a medical reason for the child's injuries
other than abuse. See id. The mother can get away with the abuse
in part because with MSBP, as Dr. Chabon explained, the "family
constellation typically includes . . . completely oblivious"
fathers who are "away at work a great deal." Id.
Partially in light of this evidence presented in the
civil lawsuit, Strickland filed both a direct appeal of his
conviction and a motion for a new trial. Among other claims not
relevant to this habeas petition, the appeal contended
that: (1) the trial judge "improperly excluded medical evidence
from Haleigh's [medical providers] with respect" to count two
(wantonly or recklessly permitting multiple injuries to Haleigh on
or before September 11, 2005); and (2) trial "counsel was
ineffective . . . for failing to obtain an expert witness on a
psychiatric condition known as [MSBP]." Id. at 138-39. To support
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the motion for a new trial on the second claim, Strickland attached
the expert reports of Dr. Chabon and social worker Wechsler. See
id. at 149. The motion judge, who was not the trial judge, denied
Strickland's plea. See id. at 141.
It is from this denial that Strickland sought relief
from the MAC. See id. at 138. We will delve into the MAC's
reasoning more thoroughly as we discuss each issue below. For
now, it is enough to know that the court affirmed Strickland's
convictions because any constitutional error regarding the
exclusion of the medical providers' evidence was harmless, see id.
at 144, and upheld the order denying Strickland's motion for a new
trial because trial counsel was not ineffective, see id. at 150.
The Supreme Judicial Court of Massachusetts declined to hear
Strickland's appeal. See Strickland, 2019 WL 4675031, at *6.
With his state remedies blocked, Strickland filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254 with the
federal district court in Massachusetts, raising the "same
arguments that were considered by the [Massachusetts] superior and
appellate courts." Id. Following the MAC's reasoning, and quoting
the opinion at length, the district court denied Strickland's
petition. See id. at *7-8. He appealed to us, and now it is our
turn to assess those same claims.
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Discussion
To set the stage, we briefly summarize Strickland's
claims before us. First, he thinks the MAC unreasonably applied
federal law when finding any error related to the exclusion of the
medical providers' evidence and testimony to be harmless. Second,
he thinks the MAC unreasonably applied federal law when rejecting
his ineffective assistance of counsel assertion. Neither claim
can succeed, as we explain.
I. Standard of Review
The federal habeas statute AEDPA (which we previewed
earlier) governs under what conditions state prisoners like
Strickland can file habeas petitions in federal courts, and
mandates how federal courts review those petitions. 28 U.S.C.
§ 2254. The complex statutory scheme demands a lengthy description
of the way it instructs us to examine Strickland's petition, but
we can summarize one of AEDPA's most pertinent characteristics
succinctly, one which cramps the petitioner's hope of relief.
Congress demanded we give great deference to state court decisions
such that we are "bound by AEDPA's tight (to say the least)
parameters" to grant habeas relief only in rare circumstances.
Dorsica, 941 F.3d at 14; see Davis v. Ayala, 576 U.S. 257, 268
(2015); Fry v. Pliler, 551 U.S. 112 (2007) (recognizing "that AEDPA
limited rather than expanded the availability of habeas relief").
To that end, "[f]actual determinations by state courts are presumed
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correct absent clear and convincing evidence to the contrary, and
a decision adjudicated on the merits in a state court and based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable" given "the evidence presented in
the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322
(2003) (citations omitted) (citing 28 U.S.C. §§ 2254(d)(2),
(e)(1)).
Let's start off with the relatively easy part. We
examine the district court's decision denying habeas relief with
no deference, but rather we review petitioner's claims, as lawyers
say, de novo. See Scott v. Gelb, 810 F.3d 94, 98-99 (1st Cir.
2016) (quoting Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir.
2009)). We do this not out of disrespect, but because "we are
effectively in the same position as the district court" to look at
"the state court record" when, as here, the district court did not
conduct any factfinding. Rivera v. Thompson, 879 F.3d 7 (1st Cir.
2018) (quoting Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)).
It is at this stage when a petitioner starts to face a
"steep climb." Cooper v. Bergeron, 778 F.3d 294, 299 (1st Cir.
2015). The statute "mandates [the] highly deferential federal
court review of state court holdings" we mentioned earlier when,
as here, the state court adjudicated the merits of the petitioner's
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habeas claim. Gelb, 810 F.3d at 99 (quoting Zuluaga, 585 F.3d at
27).12
Our deference to the state court runs out, such that we
can grant habeas relief, only if the petitioner can demonstrate
the state court's decision on the merits was "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States."13 28 U.S.C. § 2254(d)(1). We key in on "unreasonable
application" because that is where Strickland appears to rest his
claims. Gelb, 810 F.3d at 101 (quoting Harrington v. Richter, 562
U.S. 86, 101 (2011)). When analyzing an "unreasonable application"
AEDPA claim, we can grant habeas corpus if the state court
identified the correct governing principle -- one which comes from
Supreme Court decisions -- but unreasonably applied that principle
to the petitioner's case. See Williams v. Taylor, 529 U.S. 362,
412–13 (2000); see also Woodfox v. Cain, 772 F.3d 358, 367–68 (5th
12 Neither party contends the MAC did not resolve the merits
of Strickland's claim. For completeness, though, what we mean by
the merits is a decision "finally resolving the part[y's] claims,"
one which addresses the "substance of the claim[s]" and which does
not resolve the disputes based "on a procedural, or other, ground."
Gelb, 810 F.3d at 99 (quoting Yeboah-Sefah, 556 F.3d at 66).
13 For the record, the Supreme Court has clarified that the
"contrary to" inquiry is different from the "unreasonable
application" inquiry, but we need not get into the distinction
because Strickland seems to argue only that the MAC unreasonably
applied governing federal law. See Williams v. Taylor, 529 U.S.
362, 412–13 (2000).
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Cir. 2014) (when reviewing a state court's decision under the
"unreasonable application" prong, courts focus on "the ultimate
legal conclusion that the state court reached and not on whether
the state court considered and discussed every angle of the
[claim]").
Even where a state court has misapplied federal law, we
will only grant relief to the petitioner "in cases in which all
fairminded jurists would agree that a final state court decision
is at odds with the Supreme Court's existing precedents." Dorsica,
941 F.3d at 17 (quoting Bebo v. Medeiros, 906 F.3d 129, 134 (1st
Cir. 2018)); see also Gelb, 810 F.3d at 101 (petitioner must
demonstrate "the state court's ruling on the claim . . . was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility of
fairminded disagreement" (quoting Richter, 562 U.S. at 103));
Bergeron, 778 F.3d at 299 (only an "objectively unreasonable" legal
error will warrant relief (citing White v. Woodall, 572 U.S. 415,
419 (2014))). Moreover, we give more leeway to more generalized
rules, like applying the ineffective assistance of counsel
standard. See Dorsica, 941 F.3d at 17 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)); Richter, 562 U.S. at 105. If
the petitioner has managed to demonstrate such an error, it is
still not enough to win because he must also illustrate "actual
prejudice" resulted from the mistake. Ayala, 576 U.S. at 267
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(quoting Brecht v. Abrahamson, 507 U.S. 619, 634 (1993)); Fry, 551
U.S. at 120 (incorporating the Brecht prejudicial standard into
AEDPA review).
Because explaining AEDPA's setup was more than a
mouthful, we pause to make pellucid how the standard of review
applies to Strickland's appeals. For his excluded medical
providers' evidence claim, recall the MAC concluded that any
possible error was harmless. Strickland, 23 N.E.3d at 144.
Therefore, we must assess whether the MAC applied the federal
harmlessness test unreasonably. See Ayala, 576 U.S. at 269;
Dorsica, 941 F.3d at 19-20. We are not asking whether Strickland's
substantive evidentiary claims are correct. Similarly, for
Strickland's second claim about ineffective assistance of counsel,
we are assessing whether the MAC unreasonably applied the federal
ineffective assistance of counsel test when determining
Strickland's claim had not passed muster.14 Strickland, 23 N.E.3d
14 Neither party contends the MAC did not apply federal law,
even though it assessed Strickland's claims using Massachusetts
law. See Strickland, 23 N.E.3d at 143-44, 149-150. A state court
decision applying state law deserves deference under AEDPA "as
long as the state and federal issues are for all practical purposes
synonymous and the state standard is at least as protective of the
defendant's rights." Gelb, 810 F.3d at 99. Massachusetts applies
a test to determine whether a constitutional error was harmless
that is at least as protective as its federal equivalent. See
Dorsica, 941 F.3d 12, 19 (noting the Massachusetts harmlessness
test in Commonwealth v. Marini, 378 N.E.2d 51, 58 (Mass. 1978)
quotes from the federal standard outlined in Chapman v. California,
386 U.S. 18, 24 (1967)); see also Petrillo v. O'Neil, 428 F.3d 41,
45 (1st Cir. 2005). The same is true of Strickland's ineffective
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at 150. We are not examining the merits of Strickland's
ineffective assistance of counsel argument. For what it's worth,
the government thinks the MAC's conclusion was reasonable to say
the least.
II. Constitutional Right to Present a Defense and Harmless Error
Because we are evaluating whether the MAC unreasonably
applied clearly established federal law, we turn first to the MAC's
decision and the substantive law before getting to the merits of
Strickland's allegations.
A. The MAC's Reasoning and Harmlessness Law
The MAC assumed the excluded medical providers' evidence
regarding Haleigh's self-abuse (both testimony by the providers
and medical records to that effect) would have "buttress[ed] the
defendant's credibility on the wanton or reckless mens rea element
of" counts 1 and 2. Strickland, 23 N.E.3d at 143-44. Yet, the
MAC avoided "decid[ing] whether the judge's ruling" violated
Strickland's constitutional right to present a defense by
assistance of counsel claim, where the MAC relied upon Commonwealth
v. Saferian, 315 N.E.2d. 878, 882-83 (Mass. 1974). See Lynch v.
Ficco, 438 F.3d 35, 48 (1st Cir. 2006) (noting Saferian is at least
as protective as the federal standard outlined in Strickland v.
Washington, 466 U.S. 668 (1984)); Commonwealth v. Epps, 53 N.E. 3d
1247, 1258-59 (Mass. 2016) (describing the Saferian standard).
Because the MAC therefore applied a "functional equivalent" of
federal law in applying the state standard for each of Strickland's
arguments (and because neither party argued otherwise), we will
review the MAC's decisions grounded in state law in the deferential
manner demanded by AEDPA. Jewett v. Brady, 634 F.3d 67, 75 (1st
Cir. 2011).
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concluding any such exclusion was harmless. Id. (quoting
Commonwealth v. Smith, 951 N.E.2d 674, 685-86 (Mass. 2011)). To
the MAC, there was substantial other evidence of Strickland's guilt
and the medical providers' testimony and records were cumulative
of other evidence Strickland put forward concerning his defense.
Id.
Our review of that decision takes off from a different
starting line than where the parties place it. While Strickland
and the Commonwealth lay out the contours of a federal
constitutional right to present a defense, see, e.g., Crane v.
Kentucky, 476 U.S. 683, 690 (1986), remember that we are actually
concerned with whether the MAC unreasonably applied the
harmlessness test for constitutional errors, see Dorsica, 941 F.3d
at 19-20.
The Supreme Court articulated the harmlessness test in
Chapman v. California, 386 U.S. 18 (1967): "some constitutional
errors" are simply too "unimportant and insignificant" in the
circumstances of the case to require reversal. Id. at 22; see
also Ayala, 576 U.S. at 268; Glebe v. Frost, 574 U.S. 21, 23 (2014)
(per curiam) ("Most constitutional mistakes call for reversal only
if the government cannot demonstrate harmlessness."). With
respect to constitutional errors impeding a defendant's qualified
right to present a defense of his choosing, we will not set aside
the conviction if the error was "harmless[] beyond a reasonable
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doubt." United States v. Catalan-Roman, 585 F.3d 453, 466 (1st
Cir. 2009), as amended (Dec. 23, 2009).
B. A Reasonable Application
We arrive finally at the heart of the matter on his first
claim. On appeal, Strickland contends the MAC's harmlessness
analysis was unreasonable as a matter of federal law because the
excluded testimony and records were not only "central[] to the
[i]ssues . . . of the case," but were the "crux" of his defense -- namely
what he knew or reasonably could have known about Haleigh's
injuries (for counts 1 and 2), and whether "he ever abused Haleigh"
(for counts 3, 5, and 6). Because the evidence's exclusion
prevented the jury from having "the complete picture" of his
defense, Strickland also alleges the MAC improperly decided any
error was harmless because Strickland's hoped-for evidence was
cumulative.
According to Strickland, the evidence was central to his
case because the jury had a hard time believing his defense without
it. He keys in on the jury's conviction only for "wantonly or
recklessly permitting the abuse" on counts 1 and 2, arguing that
the jury's failure to convict him for actually abusing Haleigh for
those two counts of assault and battery causing substantial bodily
injury on a child demonstrates that the jury did not credit all of
the eyewitness testimony (recall, J testified that Strickland
kicked Haleigh down the stairs). As Strickland postulates, the
- 21 -
eyewitness testimony "was not so compelling that it rendered
harmless the exclusion of the medical evidence . . . Strickland
sought to introduce."
The MAC swatted away Strickland's contention that
"evidence about Holli's deception would have been" central to the
case. In the MAC's view, it was possible that the excluded medical
providers' evidence could have corroborated Strickland's testimony
and defense theory that he, like the doctors, was convinced Haleigh
abused herself and was receiving appropriate care. Strickland, 23
N.E.3d at 143-44. But the MAC found the corroborative value of
the excluded medical providers' evidence to be, at best, minimal,
and its exclusion to thus be harmless. Id. at 144-45.15
For one, the excluded evidence would have only addressed
how Holli deceived the medical providers, not whether (or how)
Holli could have hidden from Strickland the truth of Haleigh's
abuse. See id. at 144. Strickland admitted to having no
interaction with the medical providers and never "sp[oke] to a
doctor when his child was continually suffering such horrible
injuries," so the medical providers' beliefs would not have
directly impacted what he thought or knew was happening. Id. at
145. Further, Holli's success at convincing the medical providers
Strickland conceded that the medical providers' evidence
15
could not be considered for its truth (whether the medical
providers actually believed Haleigh was self-abusive), which
further marginalizes the evidence's centrality.
- 22 -
that Haleigh abused herself, as the evidence presumably would have
shown, would not automatically have led a jury to infer that Holli
"conceal[ed] her abuse in the home" from Strickland. Id. at 144.
Strickland, after all, lived in the house and had "direct and
contemporaneous" observations that the MAC determined were "not
susceptible to [the] distortion or obscuration" Holli could manage
with the medical providers with whom Strickland did not correspond.
Id. Strickland's vantagepoint for and subsequent inaction
following Haleigh's abuse, according to the MAC, "virtually
extinguished" any corroborative value of the evidence for which
Strickland sought to introduce it. Id. at 145.
In addition to finding a lack of corroborative value to
Strickland's evidentiary proffer, the MAC described the "testimony
[as] largely cumulative of other proof," such as Krzyzek's
testimony, "that informed the jury of incidents of self-abuse
reported by Haleigh and treatment and monitoring of Haleigh for
these injuries." Id. Strickland contends that he could not
"elicit the crucial point that Holli told Haleigh's [medical]
providers that Haleigh's injuries were self-inflicted and that
they accepted these representations as reasonable." However, the
MAC pointed out that the jury heard plenty of evidence
corroborating Strickland's defense. Krzyzek testified to
observing injuries on Haleigh and to hearing both Holli and Haleigh
explain the injuries as self-abuse, such as hitting her own knees
- 23 -
with a hammer (in part because she heard voices telling her to
hurt herself). Krzyzek also told the jury that Haleigh picked at
her scabs and stair surfed, among other acts; behaviors she noticed
during her "regular body checks." Id. Further, defense counsel
elicited testimony on cross from one of the Commonwealth's experts
that Haleigh's nurse practitioner had characterized some of
Haleigh's injuries as "self-injury" after observing Haleigh
"usually on a weekly basis."16 Id.
When push came to shove, the MAC rested most of its
conclusion on the strength of the prosecution's evidence. Id.
Even if the excluded medical providers' evidence would have
bolstered Strickland's credibility with the jury about what he
reasonably knew or could have known about Haleigh's abuse, the
evidence would not have been central to the jury's conclusion.
See id. at 144-45. As the MAC detailed, "multiple eyewitness
16Although the MAC did not rely on all of the possible
evidence to support its point that the excluded medical providers'
evidence was cumulative, we note that the record provides plenty
of additional bases to take the MAC's conclusion as reasonable.
For example, Strickland testified that a medical provider "was
performing body checks on Haleigh weekly because Haleigh was
hurting herself" and that this provider "saw [Haleigh] every week
to see if there were new injuries, [and] to make sure the old
injuries were healing." Strickland then denied abusing Haleigh
and expressed his belief that Holli was having Haleigh treated for
self-abuse at her almost-weekly doctors' visits. Strickland told
the jury that he saw Haleigh stick a spoon down her throat at a
hospital. And, in closing, defense counsel noted how Strickland
had observed Haleigh "bang her head," "div[e] down the stairs" and
how Strickland would ask her and Holli about injuries "he did not
know" existed.
- 24 -
accounts of [Strickland's] own brutality, and his knowledge and
acceptance of Holli's brutality" show Strickland was "not merely
a duped bystander," no matter what the medical providers' evidence
would have demonstrated. Id. Haleigh's sister J observed
Strickland being at least present when Haleigh was pushed down the
basement stairs on September 10 and Weiss testified Strickland was
"present when . . . Holli hit Haleigh in the lower leg with an
aluminum bat with Haleigh's name on it." Id. Weiss also
remembered Holli explaining, with Strickland in the room, how she
"was using Haleigh's bat because it would look like Haleigh was
hitting herself" and how she repeatedly hit the same area so new
bruises would not show up. Id. Moreover, Weiss "recounted
[Strickland] striking the back of Haleigh's hands with a 'tubular
wand' made out of plastic," while other witnesses recalled
Strickland committing other acts of violence against Haleigh,
including dragging her by the ear and subsequently punishing her
for trying to buy ice cream. Id. The MAC's point was that the
excluded evidence would not likely have altered the jury's
conclusion that Strickland directly took part in some of the abuse
(counts 3 (bat), 5 (tubular wand), and 6 (general abuse)) while
recklessly or wantonly permitting other forms of it (count 2 (the
abuse before the September 10 head injury)).17
17 The MAC stated that Strickland did not raise this challenge
in state court concerning count 1, which focused on the assault
- 25 -
Recall, we look to see if the MAC's application of the
test was unreasonable and we owe the MAC deference. See Richter,
562 U.S. at 101; Dorsica, 941 F.3d at 20 (citing Woodall, 572 U.S.
at 419) The MAC found all of the other evidence would have made
any presumed constitutional error harmless beyond a reasonable
doubt because the excluded evidence would not have changed the
guilty verdict. Strickland, 23 N.E.3d at 144. Given the abundance
of other evidence against Strickland and the admission of evidence
regarding Haleigh's self-abuse, a fairminded jurist could
reasonably agree that the disallowed medical evidence was
"marginally relevant" to Strickland's case, and thus, its
exclusion, even if error, was harmless beyond a reasonable doubt.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1983); see also Ayala,
576 U.S. at 268 (describing the harmlessness test on direct appeal,
and battery resulting in Haleigh's traumatic head injury, because
the medical providers "never treated Haleigh for the head injury"
(so they would have nothing to offer regarding it) "and the defense
did not pursue a theory at trial that the head injury was the
product of self-abuse." Strickland, 23 N.E.3d at 142. However,
Strickland's opening brief with us challenges the exclusion of the
evidence as to all counts, and his petition for a writ of habeas
corpus in the district court also did not distinguish between the
counts. Even assuming we would not give deference to the MAC
regarding this portion of Strickland's petition, thus reviewing de
novo, cf. Wiggins v. Smith, 539 U.S. 510, 534, (2003) (no deference
when state court does not reach prong of analysis), Strickland's
petition on count 1 fails for the same reasons as the MAC
determined for the other counts: Strickland cannot show the trial
court's presumed error caused him any prejudice, especially
because he did not present a defense of self-abuse as to count 1
at trial. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).
- 26 -
as occurred at the MAC (citing Chapman, 386 U.S. at 24)). We
accordingly cannot say the MAC unreasonably applied the
harmlessness test in this manner.18 See Dorsica, 941 F.3d at 19-
20.
III. Ineffective Assistance of Counsel
Strickland next alleges his trial counsel was
constitutionally deficient for not consulting or calling a child
18 Strickland's brief focused heavily on comparing his case
to United States v. Shay, 57 F.3d 126 (1st Cir. 1995), so we pause
to point out why the comparison is inapt. In Shay, a defendant
had made a number of inculpatory statements regarding a car bomb
that killed a police officer and he hoped psychiatrists would
testify to his Munchausen Syndrome (the disease drove him to seek
attention through exaggerated and grandiose statements). Id. at
129, 133. Whereas the trial court concluded the jury could weigh
the reliability of the defendant's statements on its own without
any specialized testimony and therefore prohibited the
specialists' testimony pursuant to Federal Rule of Evidence 702,
we determined the jury "plainly was unqualified" to make such an
assessment without information from experts about the defendant's
possible mental disorders that could have "explode[d] common myths
about evidence vital to the government's case." Id. We remanded
for the trial court to determine if the evidence was excludible on
other grounds. Id. at 134. Although recognizing Shay dealt with
a rule of evidence and not a constitutional right to present a
defense (let alone an AEDPA appeal), Strickland implores us to
examine his case through the "lens" of Shay because he thinks the
MSBP evidence was similarly "vital" to his case, in part because
the government "repeatedly push[ed] for the witnesses' exclusion"
before arguing in closing "that Strickland's defense . . . was
pure fiction." But Shay does nothing for our AEDPA review because,
for the reasons stated above, we conclude the MAC reasonably
determined the exclusion of the MSBP evidence was constitutionally
harmless. Cf. United States v. Pires, 642 F.3d 1, 12 (1st Cir.
2011) (distinguishing Shay, despite similar exclusion of expert
evidence, because of the differing rules of evidence at issue, and
because the proffered expert evidence was at best "peripheral" to
the question of guilt).
- 27 -
abuse expert who could testify to the effects of MSBP upon fathers
like Strickland. As previewed earlier, due to AEDPA that means we
must assess whether the MAC unreasonably applied the clearly
established federal standard for examining ineffective assistance
of counsel outlined by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). See Wiggins, 539 U.S. at 527-
28; Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (describing how
there is no doubt Strickland is settled law for the purposes of
habeas review). To tell you why the MAC did not do so, we first
explain some background about the claim, then detail the MAC's
decision, outline the Strickland standard, and finally apply the
AEDPA standard of review.
A. Expert Testimony on MSBP
In the civil lawsuit brought by Haleigh's legal guardian
against the medical providers, experts Dr. Chabon and social worker
Wechsler testified that Holli presented a textbook case of MSBP,
which enabled her to convince the medical providers Haleigh was
self-abusive. As outlined by Dr. Chabon, MSBP usually involves a
mother "who systematically fabricates information about the
children's health and/or intentionally makes the child gravely
ill." Not only that, but "[t]he family constellation typically
includes fathers who are 'away at work' a great deal and are
completely oblivious and are uninvolved in the process that
involves numerous office visits and hospitalizations of their own
- 28 -
children." Social worker Wechsler also clarified that a mother
with MSBP can trick "both lay persons and professionals."
Relying upon language within these reports, Strickland
(in a familiar manner) asserted in the MAC that this expert
evidence could have enhanced the credibility of his testimony by
explaining "how Strickland could be truly ignorant of the
unbelievably horrible acts."19 Strickland took the expert reports
as license to allege that his trial counsel was ineffective for
failing to obtain an expert on MSBP and child abuse.
B. The MAC's Decision
The MAC disagreed, largely "[b]ecause the proffered
evidence was prepared in relation to defending" medical providers
and the evidence "failed to address" Strickland's claims that Holli
similarly deceived him. Strickland, 23 N.E.3d at 150. The experts
in the civil suit, the court went on, did not consider "his role
in the abuse." Id. As discussed for the excluded medical
providers' evidence, the experts, at least based on the reports
filed, would not have been able to speak to whether Strickland
partook in the abuse because there was no expert "evidence that
Holli's deception extended beyond her public presentation to the
19 In a sidebar at trial regarding the excluded medical
providers' evidence, Strickland's counsel raised a similar point,
albeit without discussing MSBP: "On first blush, it would be easy
for everybody just to say how could [Strickland] be in this home;
how could he not . . . protect her."
- 29 -
[medical providers]" and into the home. Id. The MAC thereafter
concluded Strickland's trial "counsel's behavior [did not fall]
below that of an ordinary fallible lawyer and [did not] likely
deprive [Strickland] of an otherwise available, substantial ground
of defense" by not calling a child abuse expert or putting on MSBP
evidence.20 Id.
C. The Strickland Standard with AEDPA Review
Whether the MAC applied Strickland unreasonably is a
question "different from asking whether defense counsel's
performance fell below Strickland's standard." Richter, 562 U.S.
at 101. But, as a foundation for our discussion, we lay out the
substantive standard. To prove ineffective assistance of counsel
pursuant to Strickland, the petitioner has to get through two
hurdles. First, Strickland must show counsel performed
"deficient[ly]" such that "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" (more on this in a bit).
Strickland, 466 U.S. at 687; Companonio, 672 F.3d at 110. Second,
Strickland has to demonstrate "that the deficient performance
prejudiced the defense" because the "counsel's errors were so
20 As a reminder, the Massachusetts test for ineffective
assistance of counsel is at least as protective as the federal
standard of Strickland, such that we can say the MAC applied
clearly established federal law for the purposes of AEDPA review.
See note 14, supra.
- 30 -
serious as to deprive the defendant of a fair trial." Strickland,
466 U.S. at 687; Companonio, 672 F.3d at 110.
This is where the AEDPA standard of review once again
makes it even harder for Strickland to prevail. The Supreme Court
has defined Strickland standing alone as not an "easy task" for
defendants to cross-off. Richter, 562 U.S. at 105. Therefore,
"[e]stablishing that a state court[] appli[ed] Strickland . . .
unreasonabl[y] under [AEDPA] is [even] more difficult." Id.; see
also Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011). As the
Supreme Court has reminded us, "[t]he standards created by
Strickland and [AEDPA] are both 'highly deferential,' and when the
two apply in tandem, review is 'doubly'" deferential. Richter,
562 U.S. at 105 (citations omitted) (first quoting Strickland, 466
U.S. at 689 and then Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)). In sum, "[t]he question 'is not whether a federal court
believes the state court's determination' under the Strickland
standard 'was incorrect but whether that determination was
unreasonable -- a substantially higher threshold.'" Knowles, 556
U.S. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 478
(2007)).
D. Reasonable Application of Strickland
Strickland more or less repeats the arguments from his
motion for a new trial, contending -- in ways similar to his
averments about the excluded evidence -- that his trial counsel
- 31 -
was ineffective because: (1) a child abuse expert could have
informed the jury that Holli suffered from MSBP, which led her to
abuse Haleigh and to deceive others (including Strickland) about
the abuse; (2) doctors often miss an MSBP diagnosis; and, perhaps
most importantly, (3) fathers in MSBP families "are typically
ignorant of what is really happening to the abused child." All of
this evidence could, as we have heard from Strickland already,
demonstrate how his ignorance was reasonable and provide the jury
with corroborative evidence to bolster his testimony. Because the
evidence would have been helpful and because trial counsel did not
research or discuss MSBP or "consult[] with a child abuse expert
of any kind," despite being aware of and having some discovery
from the civil suit which produced the expert opinions on MSBP,
Strickland portends his trial counsel neither made a "complete
investigation" nor "made reasonable professional judgments."
Without any investigation, Strickland alleges his trial counsel
could have "made no affirmative decision to pursue a defense or
strategy" to which we should grant deference.
What Strickland fails to do is to overcome our doubly
deferential review by explaining how the MAC unreasonably applied
Strickland when concluding trial counsel met the mark. Richter,
562 U.S. at 105. Because the MAC concluded Strickland's trial
counsel was not constitutionally deficient (the first ineffective
- 32 -
assistance of counsel prong), we will start there. See Strickland,
23 N.E.3d at 150.
To resolve whether trial counsel was constitutionally
deficient, the Supreme Court instructs courts that "strategic
choices made [by trial counsel] after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable." Strickland, 466 U.S. at 690. Even "strategic
choices made after less than complete investigation" are often
"reasonable" so long as counsel made a "reasonable decision that
makes . . . investigations [into that topic] unnecessary." Id. at
690-91. Regarding hiring experts, the Supreme Court has noted
that "[r]are are the situations" where courts will find counsel
ineffective for making "tactical decisions" about hiring or even
"for failing to consult or rely on experts." Richter, 562 U.S. at
106. Decisions about "whether to call a particular witness [are]
almost always strategic," thus requiring our deference, Hensley,
755 F.3d at 737 (quoting Horton v. Allen, 370 F.3d 75, 86 (1st
Cir. 2004)), because "[a]n attorney need not pursue an
investigation that would be fruitless," Richter, 562 U.S. at 108.
As summarized earlier, the MAC reasoned that expert
reports prepared to demonstrate how Holli deceived health care
workers would not also provide evidence that she similarly deceived
Strickland. Strickland, 23 N.E.3d at 150. In fact, as the MAC
addressed, Dr. Chabon's report pointed out how mothers can act
- 33 -
"dramatic[ally]" different in "public" than they would at home
where the abuse is not always hidden. Id. at 149.
The MAC also outlined how "trial defense counsel had
informed appellate counsel that he had considered MSBP at the time
of trial and concluded it was not relevant" to a defense trying to
pin the blame on Holli.21 Id. at 150. Far from having ignored
evidence about MSBP, then, trial counsel strategically decided
against putting forward evidence of Holli's MSBP after
establishing, in the MAC's words, it would not have "been [of much]
relevan[ce] in assessing [Strickland's] role in the abuse." Id.
The evidence "would not have exculpated [Strickland] as it does
not directly contradict the eyewitness testimony that the
defendant was present and partook in the violent acts against
Haleigh."22 Id.
21 Remember AEDPA requires that we presume such factual
findings to be correct. See Kirwan v. Spencer, 631 F.3d 582, 584
n.1 (1st Cir. 2011) (citing 28 U.S.C. § 2254(e)(1)).
22 The MAC references the expert report on MSBP which notes
that the "family constellation typically includes fathers who are
'away at work' a great deal and are completely oblivious."
Strickland, 23 N.E.3d at 149. But in concluding Strickland's
counsel was not ineffective, the MAC did not directly rely on this
portion of the report. We note that the record provides additional
support for why Strickland's counsel may have felt an MSBP expert
would not have helped. It is not obvious Strickland qualifies as
one of those "oblivious" or absentee fathers susceptible to
deception by cases of MSBP. The expert reports provide no hint
that child abuse experts would have testified to Strickland
qualifying as such a father or that the jury would have believed
as much (he worked a nine-to-five, but, by his own testimony,
Strickland was a present and active father who loved Haleigh).
- 34 -
Where the MAC has determined that there was a reasonable
explanation for trial counsel's reasonable strategic decisions
about whether to consult or to call a specific witness, and where
Strickland has not provided any concrete assertions why the MSBP
evidence would have aided his defense, we cannot say the MAC
unreasonably applied the Strickland ineffective assistance of
counsel standard. See Richter, 562 U.S. at 105. This is certainly
not one of those rare cases where we would consider trial counsel's
choice not to call an expert to be constitutionally deficient.
See id. And, remember, we must give double deference to the MAC's
choices about ineffective assistance of counsel claims, especially
when "'fairminded jurists could [not] disagree on [the]
correctness'" of the MAC's application of federal law. Ayala, 576
U.S. at 269 (quoting Richter, 562 U.S. at 101 (second alteration
in original)).
Conclusion
The district court's dismissal of the habeas petition
is affirmed.
- 35 -
Strickland v. Goguen
Combined Opinion