United States Court of Appeals

For the First Circuit

No. 15-1770 

JAMES J. SMITH, 

Petitioner, Appellant, 

v. 

THOMAS DICKHAUT, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Mark G. Mastroianni, U.S. District Judge] 

Before 

Kayatta and Barron, Circuit Judges, 

McAuliffe,* District Judge. 

Stewart T. Graham, Jr., with whom Graham & Graham was on 

brief, for appellant. 

Maura Healey, with whom Jennifer K. Zalnasky and the Office 

of the Massachusetts Attorney General was on brief, for appellee. 

September 7, 2016 

_____________________ 

 *Of the District of New Hampshire, sitting by designation.
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 McAULIFFE, District Judge. Petitioner, James Smith, was 

convicted by a jury in the Commonwealth of Massachusetts of firstdegree murder, armed home invasion, and unlawful possession of a 

firearm. His motion for a new trial was denied and he appealed 

both the denial of that motion and his convictions to the 

Massachusetts Supreme Judicial Court (“SJC”). The SJC 

consolidated those appeals and reversed Smith’s conviction for 

armed home invasion, but upheld the remaining convictions. The 

SJC also affirmed the trial judge’s denial of Smith’s motion for 

a new trial. Commonwealth v. Smith, 946 N.E.2d 95 (2011). Smith 

then sought federal habeas corpus relief from the United States 

District Court for the District of Massachusetts, claiming that he 

had been deprived of his constitutionally protected right to 

effective legal representation when trial counsel failed to fully 

and properly advise him about his right to testify at trial. In 

a closely related claim, Smith also asserted that, because he 

waived his right to testify based upon counsel’s erroneous (and 

constitutionally deficient) advice, that waiver was invalid. And, 

finally, Smith asserted that trial counsel provided deficient 

representation by failing to marshal and present exculpatory 

evidence in his defense. The district court denied the petition 

and Smith has appealed. We affirm. 
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I. Standard of Review 

 The district court’s denial of Smith’s petition for 

habeas corpus relief is reviewed de novo. Barbosa v. Mitchell, 

812 F.3d 62, 66 (1st Cir. 2016). 

 Since passage of the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C. 

§ 2254, the power to grant federal habeas relief to a state 

prisoner with respect to claims adjudicated on the merits in state 

court has been substantially limited. A federal court may disturb 

a state conviction if the state court’s resolution of the 

constitutional issues before 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.” 28 U.S.C. ' 2254(d)(1). The Supreme Court has 

explained the distinction between decisions that are “contrary to” 

clearly established federal law, and those that involve an 

“unreasonable application” of that law, as follows: 

Under the “contrary to” clause, a federal habeas court 

may grant the writ if the state court arrives at a 

conclusion opposite to that reached by [the Supreme] 

Court on a question of law or if the state court decides 

a case differently than [the Supreme] Court has on a set 

of materially indistinguishable facts. Under the 

“unreasonable application” clause, a federal habeas 

court may grant the writ if the state court identifies 

the correct governing legal principle from [the Supreme] 

Court’s decisions but unreasonably applies that 

principle to the facts of the prisoner’s case. 
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Williams v. Taylor, 529 U.S. 362, 412—13 (2000). The Court also 

noted that an “incorrect” application of federal law is not 

necessarily an “unreasonable” one. 

[T]he most important point is that an unreasonable 

application of federal law is different from an 

incorrect application of federal law . . . . Under 

§ 2254(d)(1)’s “unreasonable application” clause, then, 

a federal habeas court may not issue the writ simply 

because that court concludes in its independent judgment 

that the relevant state-court decision applied clearly 

established federal law erroneously or incorrectly. 

Rather, that application must also be unreasonable. 

Id. at 410—11 (emphasis in original). So, to prevail, a state 

habeas petitioner must demonstrate that “the state court’s ruling 

on the claim being presented in federal court was so lacking in 

justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded 

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 

 Alternatively, federal habeas relief may be granted if 

the state court’s adjudication “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)(2). Section 2254(e)(1) goes on to provide that “a 

determination of a factual issue made by a State court shall be 

presumed to be correct” and the habeas petitioner “shall have the 
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burden of rebutting the presumption of correctness by clear and 

convincing evidence.” 

 Here, the parties disagree at the outset about the degree 

of deference we should afford to factual findings made by the state 

court. Pointing to the language of § 2254(d)(2), Smith asserts 

that he need only demonstrate that such factual findings were 

“unreasonable.” The Commonwealth, on the other hand, says factual 

findings made by the state court are, under § 2254(e)(1), presumed 

to be correct, and Smith bears the burden of rebutting that 

presumption by clear and convincing evidence. As this court has 

previously noted, the circuit courts of appeal disagree as to the 

proper interplay between §§ 2254(d)(2) and 2254(e)(1). See, e.g., 

John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender, 

507 F.3d 50, 58—59 (1st Cir. 2007). 

 The Supreme Court seemed poised to clarify the point in 

2010, when it granted certiorari to answer “the question of how 

§§ 2254(d)(2) and (e)(1) fit together.” Wood v. Allen, 558 U.S. 

290, 300 (2010). In the end, however, the Court concluded that 

the outcome of the case before it did “not turn on any interpretive 

difference regarding the relationship between these provisions.” 

Id. Even giving the petitioner in Wood the benefit of 

§ 2254(d)(2)’s standard (which is less deferential to state court 

findings of fact), the Court concluded that he was not entitled to 
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habeas relief because the state court’s findings of fact were not 

unreasonable in light of the evidence presented. Id. at 301. 

 This court has noted the Supreme Court’s silence on 

precisely how section 2254(d)(2) and 2254(e)(1) fit together, and 

it has yet to address a case in which it was necessary to resolve 

that issue. See, e.g., Robidoux v. O'Brien, 643 F.3d 334, 338 n.3 

(1st Cir. 2011) (“We have previously declined to delve into the 

relationship between subsections (d)(2) and (e)(1), as has the 

Supreme Court, and again have no need to do so.”) (citations 

omitted). At the same time, this circuit has routinely held 

petitioners to the § 2254(e)(1) “clear and convincing” standard 

without reference to § 2254(d)(2), albeit not in a case in which 

resolving the fit between the two sections would appear to have 

made any difference. See, e.g., Linton v. Saba, 812 F.3d 112, 116 

(1st Cir. 2016) (“We must accept the state court findings of fact 

unless convinced by clear and convincing evidence that they are in 

error.”) (citations and internal punctuation omitted); Jewett v. 

Brady, 634 F.3d 67, 75 (1st Cir. 2011) (“State court findings of 

fact are presumed to be correct unless the petitioner rebuts this 

presumption of correctness with clear and convincing evidence.”) 

(citations and internal punctuation omitted). The record in this 

case allows us to proceed in similar fashion, because even if we 

were to assess the state court’s factual determinations under the 
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more petitioner-friendly standard set out in § 2254(d)(2), rather 

than the more deferential standard in 2254(e)(1), Smith would still 

not be entitled to the relief he seeks. 

II. Factual Background 

 In light of the evidence presented at Smith’s trial and 

the jury’s verdict, the SJC found the relevant facts underlying 

his convictions to be as follows. In June of 2006, Smith moved 

into the apartment of Patricia Higgs in North Adams, Massachusetts. 

During his relatively brief stay, Smith sold a variety of drugs 

from Higgs’ apartment, including cocaine, crack, and heroin. He 

employed Higgs in the business, compensating her with money and 

drugs. Eventually, however, Higgs and Smith had a falling out and 

she asked him to leave. About two weeks later, Kijona Osmond, the 

murder victim, moved into Higgs’ apartment and began operating a 

similar drug-trafficking business. At that point, five people 

were living in the apartment including Higgs, Osmond, and a woman 

named Angela Stark. 

 On July 26, 2006, at approximately 2:00 a.m., Smith went 

to a Dunkin’ Donuts near Higgs’ apartment and spoke with one of 

the store’s employees. Shortly before leaving, he posed an 

unusual question: Whether she would contact the police if she saw 

someone get shot. Smith then went to Higgs’ apartment and knocked 
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on the door. Higgs opened the door and saw Smith standing in the 

threshold holding a firearm. Smith grabbed Higgs by the neck and 

threw her against the wall and, while holding the weapon to her 

head, demanded to know where the “stuff” was. Higgs said, “Please 

don’t do this, my baby is in the other room.” Stark, who was in 

the kitchen when Smith entered the apartment, confirmed the violent 

nature of his entry and testified that Higgs pleaded with him, 

“don’t do it, my baby is here.” 

 At that point, Osmond tried to make his way to the 

kitchen, where the back door to the apartment was located. Smith 

released Higgs and attempted to grab Osmond’s shirt. Osmond 

turned to confront Smith, at which point Smith fired a single round 

into Osmond’s neck. Osmond immediately collapsed onto his 

stomach, with the left side of his face on the floor. Smith 

stepped over Osmond, straddled his prone body, and fired a second 

(fatal) shot into the back of his head. Smith then leaned down 

to remove money and drugs from Osmond’s pockets and, after 

threatening the remaining occupants of the apartment and warning 

them to keep their mouths shut, fled the building. 

 Higgs, who had escaped the apartment when Smith released 

her to confront Osmond, returned and discussed with Stark the 

potential legal implications should police discover contraband in 

Osmond’s pockets when they arrived. The women went through his 
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pockets, removed whatever Smith had left behind, and left the 

apartment. Higgs then telephoned police on Stark’s mobile phone. 

North Adams police officers, as well as a Massachusetts state 

trooper, soon arrived at the scene, where they discovered the 

victim’s body lying on the floor with a loaded handgun beside him. 

 Meanwhile, Smith went to the apartment of some 

acquaintances, where he forced the door open. He told them he had 

threatened Higgs and held a gun to her head. He also admitted he 

shot Osmond in the throat, saying he thought Osmond was going to 

shoot him. Smith also confessed that after Osmond had fallen to 

the floor, he shot him again in the back of the head. One of the 

occupants of the apartment testified at trial that Smith had said 

that he was motivated by the fact that “they were making the money 

and he wasn’t.” Smith then told the occupants of the apartment 

that because they were now witnesses to his confession, he was 

going to have to kill them as well, saying “There will be no 

witnesses” and, therefore, “Everyone must die.” Eventually, 

however, Smith calmed down and fell asleep. He was awakened when 

police officers came to the apartment to interview its occupants. 

Smith fled out a bedroom window but was soon located and taken 

into custody by North Adams police officers. 
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III. Procedural Background 

 Smith was tried in the Berkshire County Superior Court. 

A jury convicted him of murder in the first degree on theories of 

both deliberate premeditation and felony-murder (the predicate 

crime being armed home invasion, for which Smith was also 

convicted). The jury also found Smith guilty of unlawful 

possession of a firearm. Smith was acquitted, however, of three 

less serious crimes relating to threats he allegedly made against 

the occupants of Higgs’ apartment. 

 On appeal, the SJC reversed Smith’s armed home invasion 

conviction, concluding that the indictment failed to adequately 

identify the specific home invasion at issue, i.e., Smith’s 

forcible entry into Higgs’ apartment, or his subsequent forcible 

entry into the apartment of his acquaintances. Nevertheless, the 

court upheld Smith’s felony-murder conviction, concluding that 

because the trial court’s instructions to the jury focused the 

jury’s consideration on the incident at Higgs’ apartment, there 

could be no doubt that Smith was convicted of felony-murder on the 

appropriate predicate offense: the armed home invasion of Higgs’ 

apartment. Finally, the SJC affirmed the trial court’s denial of 

Smith’s motion for a new trial, concluding that Smith had validly 

waived his right to testify at trial, and holding that his defense 
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counsel did not mislead him or provide constitutionally deficient 

representation. 

 Before us are three of the claims Smith raised in his 

federal habeas petition: first, that he waived his right to testify 

at trial based upon incorrect legal advice and, therefore, the 

waiver was invalid; second, that trial counsel provided 

constitutionally deficient representation when he failed to 

properly advise Smith about important consequences associated with 

waiving his right to testify; and, finally, that trial counsel 

provided constitutionally deficient representation by failing to 

marshal available evidence to rebut the armed home invasion charge, 

undermine the felony-murder charge, and support Smith’s claim of 

self-defense. 

 In a thorough and thoughtful opinion, the district court 

rejected each claim. The district court granted Smith a 

certificate of appealability and he appealed. 

IV. Discussion 

 To prevail before the SJC on his ineffective assistance 

claims, Smith bore the burden of satisfying the two-part test 

articulated in Strickland v. Washington, 466 U.S. 668 (1984). 

That is, he was required to demonstrate that counsel’s performance 

fell below an objective threshold of reasonable care and that 
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counsel’s deficient performance prejudiced him. See id. at 687. 

To satisfy the prejudice test, Smith had to establish that, but 

for counsel’s deficient performance, there was a reasonable 

probability that the outcome of his trial would have been 

different. See Turner v. United States, 699 F.3d 578, 584 (1st 

Cir. 2012). “A reasonable probability is a probability sufficient 

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

694. In other words, the likelihood that the outcome of the trial 

would have been different “must be substantial, not just 

conceivable.” Harrington, 562 U.S. at 112. 

 In the context of a federal habeas proceeding, claims of 

ineffective assistance of counsel present mixed questions of law 

and fact which are reviewed under § 2254(d)(1)’s “unreasonable 

application” clause. See Teti, 507 F.3d at 57. Consequently, the 

question before this court (as it was before the district court) 

is whether the SJC’s application of the Strickland standard to 

Smith’s ineffective assistance claims was “unreasonable.” Our 

inquiry is quite different from a de novo determination of whether 

trial counsel’s performance fell below the standards established 

in Strickland. 

Were that the inquiry, the analysis would be no different 

than if, for example, this Court were adjudicating a 

Strickland claim on direct review of a criminal 

conviction in a United States district court. Under 

AEDPA, though, it is a necessary premise that the two 
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questions are different. For purposes of § 2254(d)(1), 

“an unreasonable application of federal law is different 

from an incorrect application of federal law.” A state 

court must be granted a deference and latitude that are 

not in operation when the case involves review under the 

Strickland standard itself. 

Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410). 

In this case, then, we must look for an “unreasonable application” 

of Strickland. 

A. Advice Regarding Smith’s Waiver of His Right to Testify 

 Turning first to Smith’s claim of ineffective assistance 

as it relates to his testimonial waiver, we start with the basics: 

“a defendant’s right to testify in his own defense is a 

‘fundamental constitutional right’ and is ‘essential to due 

process of law in a fair adversary process.’” Casiano-Jiménez v. 

United States, 817 F.3d 816, 820 (1st Cir. 2016) (quoting Rock v. 

Arkansas, 483 U.S. 44, 51, 53 n.10 (1987)). The defendant’s lawyer 

“bears the primary responsibility of informing and advising the 

defendant of this right, including its strategic ramifications.” 

Id. Counsel is also obliged to explain that the decision to 

testify or not belongs exclusively to the defendant. Importantly, 

however, no specific requirements govern the nature or content of 

those essential conversations between counsel and his or her 

client. See id. (“In determining whether a lawyer has adequately 
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apprised his client of this fundamental right, no particular 

formulation is required. There are no magic words; the inquiry 

is whether ‘some sort of conversation’ has occurred between the 

attorney and his client, such that ‘the client can make a knowing 

and informed decision’ regarding whether to testify in his own 

defense.”) (quoting Owens v. United States, 483 F.3d 48, 60 n.10 

(1st Cir. 2007)). 

 In support of his assertion that trial counsel provided 

constitutionally deficient advice regarding his right to testify, 

Smith relies upon his own affidavit and an affidavit filed by trial 

counsel. In the latter, counsel relates that: (1) he did discuss 

with Smith whether or not he should testify; (2) Smith informed 

counsel of his desire to testify, so he might tell his version of 

the events; (3) counsel informed Smith that, on cross-examination, 

the prosecutor would not simply allow him to re-tell his story but 

would, instead, restrict him to answering questions put to him; 

(4) counsel advised Smith that, based upon the evidence introduced 

by the Commonwealth, he did not believe Smith had a viable theory 

of self-defense; (5) counsel told Smith that, in his professional 

opinion, he did not believe the jury would credit Smith’s proposed 

testimony; and, finally, (6) counsel told Smith that if he followed 

counsel’s advice and did not testify, then if he were convicted, 
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he could challenge both his waiver of the right to testify and 

counsel’s advice post-trial. 

 Seizing upon that final bit of advice, Smith says he 

understood counsel to mean that his decision to waive the right to 

testify was “not final” and that, if convicted, he could obtain a 

reversal on appeal by simply challenging counsel’s advice and his 

waiver. Moreover, he claims he waived his right to testify based 

upon that (mistaken) understanding of counsel’s advice. 

Consequently, says Smith, his waiver was not valid. 

 Trial counsel’s actual advice —— “that if [Smith] 

followed my advice and did not testify, then if he were convicted 

he could challenge both his failure to testify and my advice posttrial” —— seems, on its face, to be rather unremarkable. It is 

certainly correct to say that Smith would be free, if convicted, 

to challenge counsel’s advice on appeal, presumably arguing that 

for some reason it was patently unreasonable and amounted to 

ineffective assistance. Additionally, Smith could argue (as he 

does) that his testimonial waiver was invalid to the extent he 

relied upon counsel’s purportedly unsound advice. Of course, if 

counsel had actually told Smith that he could count on obtaining 

a reversal on appeal if he waived his testimonial right and was 

subsequently convicted, a legitimate issue would arise with 
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respect to both the competency of counsel’s representation and the 

validity of Smith’s waiver. 

 But, both of the Massachusetts courts that reviewed 

Smith’s claims concluded that did not happen. The state trial 

court determined that counsel’s advice to Smith concerning his 

right to testify (and whether he should exercise or waive that 

right) was neither incorrect nor constitutionally deficient. The 

trial judge also found that Smith’s claimed understanding of 

counsel’s advice was not credible. The court supported its 

credibility determination by noting that: (1) Smith’s affidavit 

was self-serving and conclusory; (2) defense counsel was “very 

experienced” and “is frequently called upon in murder cases”; 

(3) the record “contains ample evidence that [Petitioner] and his 

trial counsel discussed his right to testify”; and, (4) through 

his affidavit, trial counsel “did not indicate any willingness to 

accept fault for allegedly misadvising” Smith. Having fully 

considered Smith’s claim, as well as the legal and factual support 

upon which he relied, the trial judge concluded that the “record 

is clear . . . that [Petitioner] made a voluntary, strategic 

decision not to testify after adequate consultation with his trial 

counsel.” 

 On appeal, the SJC also construed Smith’s affidavit as 

claiming that he thought his decision not to testify would allow 
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him to later obtain a reversal of any conviction. Smith, 946 

N.E.2d at 105—06. See also id. at 106 (construing Smith’s 

“purported misunderstanding” of counsel’s advice to mean that he 

could have a “do over” if he followed counsel’s advice, elected 

not to testify, and was subsequently convicted). Like the trial 

court, the SJC concluded that Smith failed to demonstrate that 

trial counsel provided either an erroneous or an incomplete 

explanation of his constitutionally protected right to testify at 

trial. The SJC noted, inter alia, that trial counsel was both 

“thorough and highly experienced” (to the point of documenting on 

the record the fact that he and Smith had discussed whether Smith 

wished to testify), counsel informed Smith that he had an absolute 

right to testify, and counsel explained to Smith why he believed 

Smith should elect not to testify.1 Indeed, the SJC found “no 

error in the advice offered by counsel.” The SJC also affirmed 

 

1 Counsel’s transcribed conversation with Smith included the 

following exchange: 

Counsel: [Mr. Smith], I have asked to have the “steno” 

here because you and I have had conversations in the 

back that are in private and we have discussed whether 

or not you are desirous of taking the stand and 

testifying in this matter. I have explained to you that 

it’s your absolute right. I have offered you an opinion 

relative to what I think you should do. And I would 

like you to clarify for the record whether or not you 

wish to testify in this particular matter. 

[Smith]: No, I wish not to testify in this matter.
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the trial judge’s factual finding that Smith’s affidavit 

statements regarding his understanding (or misunderstanding) of 

counsel’s advice were not credible. 

 We agree with the district court that Smith failed to 

demonstrate that the SJC’s resolution of his ineffective 

assistance claim was “contrary to, or involved an unreasonable 

application of, clearly established Federal law,” as expressed in 

Strickland. 28 U.S.C. § 2254(d)(1). Nor has Smith demonstrated 

that either the trial judge’s or the SJC’s credibility 

determination was “based on an unreasonable determination of facts 

in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). 

While counsel’s advice arguably might have been more precise or 

complete (say, by informing Smith that if he were convicted, the 

probability of successfully challenging counsel’s advice and/or 

his waiver on appeal was very low), it would not be unreasonable 

to conclude, as the SJC did, that the advice given was neither 

inaccurate nor misleading. Nor has Smith shown that the state 

courts unreasonably rejected his claimed confusion about his 

appellate rights as not credible. 

 For the same reasons, it necessarily follows that 

Smith’s renewed challenge to his decision to waive his right to 

testify fails. The SJC’s conclusion that Smith’s waiver was not 

induced by erroneous legal advice was not unreasonable under 
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§ 2254(d)(1), nor was its decision to defer to the trial court’s 

factual finding that Smith had not actually misunderstood 

counsel’s advice unreasonable under § 2254(d)(2). Those legal 

conclusions and factual findings, which Smith has not shown to 

have been incorrect or unreasonable in any respect, preclude his 

invalid waiver theory.2 

 Parenthetically, with respect to Smith’s ineffective 

assistance claim, the court notes that even if Smith had shown 

that trial counsel’s advice was incorrect and amounted to 

ineffective assistance and if he further demonstrated that the 

SJC’s resolution of his claim was based upon an unreasonable 

application of the first part of the Strickland test, his claim 

would still fail, because he has not shown any prejudice resulting 

from counsel’s allegedly incorrect advice. See generally 

Strickland, 466 U.S. at 694. Specifically, Smith has not shown 

(nor, given the record evidence, could he show) that, had he 

 

2 As the district court noted, Smith’s prior experience in the 

criminal justice system is one of the several factors that 

undermine his asserted misunderstanding of trial counsel’s advice 

about waiving the right to testify and/or his appellate rights. 

See, e.g., Parke v. Raley, 506 U.S. 20, 37 (1992) (“A defendant’s 

prior experience with the criminal justice system [is] relevant to 

the question of whether he knowingly waived constitutional 

rights.”). Additionally, the district court noted that Smith has 

pled guilty to other charges on at least one occasion in the past, 

thereby demonstrating a familiarity with the process of waiving 

constitutional rights. 
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testified, there is a reasonable probability that the outcome of 

his trial would have been different. 

 As the SJC discussed in detail, in order to credit 

Smith’s version of events regarding the armed home invasion, the 

jury would have had to “disbelieve the testimony of two percipient 

witnesses, Higgs and Stark, whose testimony suggested a violent 

entrance to the apartment.” It would also have had to disbelieve 

the testimony of Smith’s acquaintances, to whom he had confessed 

that, upon entering Higgs’ apartment, he held a gun to her head. 

Additionally, to accept Smith’s claim that he acted in selfdefense, the jury would have had to be persuaded that: Smith 

entered the apartment peacefully and posed no apparent threat to 

anyone, yet the victim approached him, drew a firearm, and 

threatened him with it; although Smith’s weapon was not drawn, he 

was able to access it and fire two shots in self-defense before 

the victim could respond; and, there was a plausible explanation 

for the fact that, despite Smith’s claim of rapid defensive 

shooting, the two bullets from his firearm entered the victim’s 

body at very different angles and from different directions 

(evidence that, according to the medical examiner, supported the 

Commonwealth’s theory that the second, fatal shot was fired while 

the victim was lying face-down on the floor). Both the trial 

court and the SJC concluded that Smith’s proposed version of the 
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events in question was simply not credible —— a conclusion shared 

by Smith’s experienced trial counsel, as expressed in his 

affidavit. Finally, had Smith testified at trial, he obviously 

would have exposed himself to potential cross-examination and 

impeachment concerning his criminal activities in Higgs’ 

apartment, his prior convictions, and the inconsistent statements 

he made to the occupants of the apartment to which he fled (about 

why he had killed the victim). 

 In short, even if Smith had testified and presented his 

version of events to the jury, it is not reasonably probable that 

the outcome of his trial would have been different. See 

Harrington, 562 U.S. at 112. Consequently, even if trial 

counsel’s advice were deemed constitutionally deficient, Smith 

suffered no resulting prejudice. 

B. Burden of Proof with Respect to the Testimonial Waiver 

 Next, Smith advances a closely related claim of error. 

The SJC, he argues, erroneously (and in contravention of Supreme 

Court precedent) imposed upon him the burden to demonstrate that 

his waiver of the right to testify was invalid. Instead, says 

Smith, the SJC should have required the Commonwealth to prove that 

he knowingly and intentionally relinquished a known 

constitutionally protected right. In Smith’s view, that error 
- 22 - 

“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.” 28 U.S.C. 

§ 2254(d)(1). We disagree. 

 First, nothing in the record suggests that the SJC 

unreasonably applied the well-established principle that a 

criminal defendant’s waiver of his constitutionally protected 

right to testify must be both knowing and voluntary. Indeed, the 

SJC recognized that the “right to testify on one’s own behalf in 

a criminal case is fundamental” and specifically recognized that 

any waiver of that right must be both knowing and intelligent. 

 To be sure, consistent with Massachusetts law, the SJC 

did require Smith to bear the burden of demonstrating that his 

waiver of the right to testify at trial was not knowing and 

voluntary. Smith, 946 N.E.2d at 105 (“When asserting that errors 

of counsel deprived him of the right to testify, a defendant has 

the burden of proving that his waiver of his right to testify was 

invalid.”) (citations and internal punctuation omitted). The SJC 

found that Smith failed to carry that burden, and concluded that 

his waiver was not invalid. But, with respect to properly 

allocating the burden of proof regarding testimonial waivers, “the 

Supreme Court has never articulated the standard for assessing 

whether a criminal defendant has validly waived his right to 
- 23 - 

testify or determined who has the burden of production and proof 

under particular circumstances.” Jenkins v. Bergeron, 824 F.3d 

148, 153 (1st Cir. 2016) (citing Thompson v. Battaglia, 458 F.3d 

614, 619 (7th Cir. 2006)). If federal law is not clearly 

established by the Supreme Court, “then per force the state court 

decision cannot be either contrary to or an unreasonable 

application of clearly established federal law.” Jenkins, 824 

F.3d at 153 (quoting Likely v. Ruane, 642 F.3d 99, 102 (1st Cir. 

2011)). 

 The absence of controlling Supreme Court precedent 

establishing which party bears the burden of proof necessarily 

dooms Smith’s assertion that the SJC acted contrary to clearly 

established federal law when it imposed upon him the obligation to 

show that his waiver was invalid. 

C. Failure to Support Self-Defense Theory 

 In his final claim, Smith asserts that trial counsel 

provided constitutionally deficient representation by failing to 

marshal (and introduce at trial) available evidence that would 

have rebutted the armed home invasion charge and supported Smith’s 

claim of self-defense. He argues that the SJC’s resolution of 

that claim on appeal was contrary to, or involved an unreasonable 
- 24 - 

application of, the standards set out in Strickland. That claim 

also fails. 

 In support of his claim, Smith first takes issue with 

the SJC’s statement of facts relevant to his convictions. Then, 

he paints a picture of the events in question that is supportive 

of his theory of the case —— that he entered Higgs’ apartment 

peacefully and at her invitation, and that he shot the victim in 

self-defense. Finally, he attempts to persuade the court that 

trial counsel was ineffective for failing to introduce evidence 

tending to prove that account. We are not persuaded. 

 As outlined above, the evidence presented at trial 

overwhelmingly supported the jury’s guilty verdict on the charge 

of first-degree murder. In rejecting Smith’s claim that trial 

counsel was ineffective by failing to present evidence supportive 

of Smith’s alternate theory of the case, the trial court found 

that Smith’s self-defense theory was unpersuasive and rested 

largely on an entirely speculative opinion of a ballistics expert 

who lacked both the knowledge and the qualifications to testify 

about the matters upon which Smith relies. The SJC agreed, noting 

that in light of the evidence presented at trial, Smith’s theory 

of the case was not credible and the risks associated with his 

testifying at trial were substantial. 
- 25 - 

 Smith has not overcome the presumption of correctness 

afforded to the state court’s factual findings, nor has he 

demonstrated that those factual findings were, in light of the 

evidence presented at trial, unreasonable. See 28 U.S.C. 

§ 2254(d)(2). Consequently, he cannot show that trial counsel 

provided constitutionally deficient representation by either 

failing to call Smith to testify in his own defense or by 

neglecting to present other unidentified evidence supportive of 

Smith’s version of the events —— quintessentially strategic 

decisions by counsel, that were supported by the record evidence 

and to which substantial deference is afforded. See Strickland, 

466 U.S. at 689 (admonishing lower courts to afford trial counsel 

“wide latitude . . . in making tactical decisions.”). See also 

Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (“[T]his court 

has held that a lawyer’s performance is deficient under Strickland 

only where, given the facts known at the time, counsel’s choice 

was so patently unreasonable that no competent attorney would have 

made it.”) (citation and internal punctuation omitted). 

 Because Smith has not, and cannot, show that the SJC’s 

resolution of his second ineffective assistance claim was contrary 

to, or involved an unreasonable application of, the Strickland 

standard, the district court properly rejected it. 
- 26 - 

Conclusion

 For the foregoing reasons, Petitioner has failed to 

sustain his burden under 28 U.S.C. § 2254(d) as to any of the 

claims advanced on appeal. The judgment of the district court 

denying the petition for habeas corpus relief is affirmed.