United States Court of Appeals

For the First Circuit

No. 09-2459

RICHARD SHUMAN,

Petitioner-Appellant,

v.

LUIS SPENCER,SUPERINTENDENT,

MCI-NORFOLK,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Thompson, Circuit Judges.

Donald A. Harwood for Appellant.

Eva M. Badway, Assistant Attorney General, with whom Martha

Coakley, Attorney General, was on brief, for appellee.

February 23, 2011
Akathisia is characterized by muscular agitation, quivering 1

and the inability to sit still, and may appear as a result of

prescription drugs. Stedman’s Medical Dictionary 42 (28th ed.

2006).

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THOMPSON, Circuit Judge. In August of 1997, Richard

Shuman gunned down two business associates and was later convicted

of first degree murder. At trial, Shuman’s defense counsel put on

a vigorous insanity defense. Advancing a carefully crafted theory

that a “toxic soup” of diabetes, depression, and anxiety

medications -- including the selective serotonin reuptake inhibitor

("SSRI") Zoloft -- put Shuman in a drug-induced psychotic state at

the time of the killings, trial counsel argued that Shuman could

not have had the necessary mens rea to commit premeditated murder.

A Massachusetts jury rejected Shuman’s theory and he was sentenced

to life in prison without parole. 

After exhausting state remedies, Shuman applied to the

federal court for a writ of habeas corpus claiming violations of

his constitutional rights under the Sixth and Fourteenth Amendments

-- specifically, ineffective assistance of counsel. He now

challenges the denial of his habeas petition, again insisting that

his trial counsel performed ineffectively by failing to investigate

and produce evidence that Shuman's killings resulted, not from a

general drug-induced psychosis as was advanced at trial, but rather

and more specifically from Zoloft-induced “akathisia,” a state of

violent urges and agitation. While neither Shuman’s trial counsel 1

nor his trial expert, Dr. Harold Bursztajn, referred specifically
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to akathisia, Dr. Bursztajn did testify that Zoloft combined with

Shuman's other prescription medicine could give rise to side

effects including agitation, a need to act, and “compulsive

behavior” that may be "organized" but is nonetheless “delusional.”

These side effects, he said, manifest “right away” and are

exacerbated by diabetes. For the reasons discussed herein, we

affirm the district court’s denial of habeas relief.

I. Background

A. Facts

We review the facts largely as described by the

Massachusetts Supreme Judicial Court (“SJC”) decision affirming

Shuman’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) (quoting Healy v. Spencer, 453 F.3d

21, 22 (1st Cir. 2006)) (cert. denied 130 S. Ct. 639 (2009)).

On the afternoon of August 5, 1997, Shuman shot and killed

two business associates, Jack Badler and Howard Librot. The

Commonwealth attributed the shootings to a deteriorating business

relationship. In 1989, Shuman's printing business, Foremost

Printers (“Foremost”), had purchased another company, Web Corp.,

from Librot. Librot and his wife continued to run Web Corp. under

Foremost's ownership. Then, in 1991, Foremost hired Badler, a

friend of Librot’s, to handle the company's finances and accounting.

In 1994 and 1995, Shuman was on leave from Foremost as
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part of a stock buy-out agreement. While Shuman was away, Badler

remained in charge of Foremost's finances. The company did not fare

so well. By 1996, Foremost had endured a series of poor business

decisions which caused it to experience serious financial

difficulties. Faced with dimming business prospects, tensions

mounted between Shuman, Librot, and Badler. Frequently, Shuman

argued with Badler about the company's accounting. By 1997,

Foremost was unable to pay Badler's consulting fee for managing its

books. Nor was it able to meet its financial obligations to Librot.

Soon thereafter, Librot re-purchased Web Corp. from Foremost. Once

the sale was complete, Librot instructed his employees not to permit

Shuman on Web Corp. property and not to assist him with any

printing.

On August 1, 1997, Foremost's assets were sold to another

company, Starr Printing ("Starr"). Starr refused to retain Badler

to handle the company's books. Consequently, Badler insisted that

Shuman sign a document releasing Badler from any liability related

to the management of Foremost's finances. Shuman refused. Four

days after the sale, Badler processed the payroll for Web Corp., but

not for Foremost. Badler refused to process Foremost's payroll

until Shuman signed the release. On the morning of August 5, there

was a heated argument between Badler and Shuman in Badler's office.

Shuman stormed out, but returned later in the day armed with a nine

millimeter Beretta semiautomatic pistol.
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Confronted by an armed Shuman, Badler had the presence of

mind to call Helen Anderson, his human resources manager, to his

office door to witness the gun. Badler instructed Anderson to dial

911 if Shuman did not put the weapon away. "Shuman told Anderson,

'Don't worry. I won't hurt you,' and put the gun away."

Commonwealth v. Shuman, 836 N.E.2d 1085, 1088 (Mass. 2005). As

Anderson was leaving the room, Shuman accused Badler of ruining his

business and his life. Then, Shuman opened fire on Badler striking

him in the eye, neck, upper chest, and thumb. As Shuman left

Badler's office he told two stunned employees, “Don't worry. I'm

not going to shoot you two. I'm not upset with you.” Id.

After shooting Badler, Shuman drove to Librot's office.

He fired as he entered, striking Librot in the head, neck, and

chest. With weapon in hand, Shuman left the building and drove

away. Both victims died. Minutes after leaving Librot's office,

Shuman arrived at his parents' home and told his mother that he had

killed two people. Distraught, Shuman raised the gun to his head.

His mother begged him not to shoot himself. Eventually, Shuman did

put the weapon away and his parents drove him to the police station.

At trial, friends and family testified that beginning in

January 1997, they started to notice changes in Shuman's

personality. He was unable to sleep, "seemed depressed, lost

weight, and on one occasion, held a gun to his head." Id. In fact,

in mid-July of 1997, Shuman's family physician, Dr. Warshaw, treated
Dr. Warshaw's first name does not appear in the record before 2

the court.

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Shuman for the first time with a small dosage of an antidepressant

known as Elavil. Concerned about the possibility of worsening 2

depression, Dr. Warshaw referred Shuman to a specialist,

psychiatrist George Gardos. 

Dr. Gardos saw Shuman one week before the shootings. Dr.

Gardos diagnosed depression, but discerning no psychosis, saw no

need for hospitalization. Furthermore, he did not believe Shuman

was a risk of harm to himself or others. Dr. Gardos increased

Shuman's preexisting Elavil dosage and prescribed Zoloft, a “mood

elevator.” Dr. Gardos testified that he was not aware of any

“significant or commonly occurring interaction between hypoglycemia,

diabetes and Zoloft.”

On September 18, 1998 and October 13, 1998, psychiatrist

and defense expert Dr. Bursztajn evaluated Shuman for criminal

responsibility. Dr. Bursztajn opined that at the time Shuman opened

fire, he “was suffering from a major depression, with anxiety which

reached psychotic dimensions,” as well as paranoia and delusions.

According to his testimony, Shuman's diabetes exacerbated his

depression, and his consumption of Elavil and Zoloft magnified its

symptoms. Dr. Bursztajn also testified about the risk of “amplified

depression” arising from the medicine Shuman was taking for

hypertension. In particular, Dr. Bursztajn posited that Elavil in

combination with Zoloft can give rise to agitation and compulsive
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behavior which is irrational but organized. He also testified that

“the side effects come right away,” particularly in patients

suffering from diabetes. Dr. Bursztajn’s testimony was consistent

with Shuman’s theory of the case: in defense counsel’s opening

statement, he described Shuman as an individual “in a state of

depression” who had been “crank[ed] . . . up on Zoloft.”

The prosecution called as its expert Dr. Michael

Annunziata, a forensic psychiatrist. After spending twelve hours

with Shuman, Dr. Annunziata testified he observed no evidence of a

marked mood disorder, intellectual impairment, psychotic or

delusional disorder, or major depression. 

In an attempt to lessen the blow of Dr. Annunziata's

testimony regarding this lack of evidence, Shuman’s counsel, on

cross-examination, asked Dr. Annunziata whether the use of Zoloft,

in combination with diabetes medication, could cause any side

effects, specifically, enhanced aggression. Dr. Annunziata replied

that, "[a]ll of the medical [sic] and the combination of medications

can cause medical complications. I don't think that you're going

to find that the . . . effects result in what you refer to as a

fixed delusional system." As a follow-up question, counsel asked

Dr. Annunziata whether there are any warnings that Zoloft may cause

enhanced aggression. Dr. Annunziata testified that "there's a

warning on every drug about almost everything." When asked by

defense counsel to specifically address Zoloft, Dr. Annunziata
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replied that, "[l]ike many drugs there's a list of hundreds --

dozens and hundreds of possible side effects. Almost everything

[sic] is possible." In response to the court's admonishment that

"the question is just [in regard to] Zoloft," Dr. Annunziata stated

that Zoloft does provide warnings relating to enhanced aggression.

He went on to say that in "very, very few cases," Zoloft causes a

“high feeling” for someone in a depressed state and can actually

“enhance the depression.” This enhanced depression would, in Dr.

Annunziata's opinion, be “quite observable.”

B. Procedural History

On October 26, 1999, a state court jury convicted Shuman

of two counts of first degree murder. He was sentenced to life in

prison without parole. Shuman timely appealed his convictions to

the SJC. He also filed a motion for post-conviction relief (i.e.,

a new trial) on two grounds: (1) newly discovered evidence of a link

between Zoloft and violence and, alternatively, (2) ineffective

assistance of counsel in failing to establish a link between Zoloftinduced akathisia and Shuman’s violent acts. In support of his

motion, Shuman submitted an affidavit from a psychiatric expert, Dr.

Joseph Glenmullen, who opined that akathisia, a condition not

explicitly mentioned during trial, was the cause of Shuman’s violent

episode. In the affidavit, Dr. Glenmullen asserted that after

having reviewed Shuman’s full medical record from Bridgewater State

Hospital ("Bridgewater"), which trial counsel admittedly never
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obtained, he saw ample evidence of akathisia, though Shuman himself

has never suggested the word “akathisia” appears in his medical file

from Bridgewater.

On May 10, 2004, upon reviewing the affidavits and

supporting materials, the trial justice denied the motion for postconviction relief without holding an evidentiary hearing. The

justice concluded that (1) the evidence was not newly discovered

because the link between SSRIs and violence had been public since

the early 1990’s and (2) Shuman’s counsel presented a well-prepared

insanity defense in which he specifically, during his crossexamination of the prosecution's expert witness, asked about a link

between Zoloft and enhanced aggression.

Shuman filed a motion for reconsideration, which the trial

justice denied on July 16, 2004. He appealed the denial of the

motion for post-conviction relief, which was consolidated with his

direct appeal from his convictions. On November 8, 2005, the SJC

affirmed Shuman’s convictions and the denial of his motion for postconviction relief. Shuman, 836 N.E.2d at 1087.

On August 3, 2006, Shuman filed a petition in federal

court for a writ of habeas corpus under 28 U.S.C. § 2254. Shuman

claimed that he was (1) denied effective assistance of counsel

because his trial attorney failed to investigate and present

evidence that Shuman’s conduct resulted from Zoloft-induced
We note that in the district court’s opinion, which was otherwise 3

well-reasoned and decided correctly, the court plainly misstated

the facts when it wrote that the link between Zoloft and violence,

“as it appears in this record, . . . was not reliably understood at

the time of trial.” Shuman, 657 F. Supp. 2d at 276. In fact, as

the record and the SJC’s decision make abundantly clear, Shuman’s

trial counsel did explicitly make the alleged link between Zoloft

and violence. He did so during opening statement, direct

examination of his expert, cross-examination of the state’s expert,

and closing argument. The district court may have relied too

heavily on trial counsel’s post-trial affidavit, filed with

Shuman’s motion for post-conviction relief, wherein trial counsel

surprisingly disclaimed any knowledge at the time of trial of the

link between Zoloft and violence, even though both the SJC

decision, see Shuman, 836 N.E.2d at 1090-91 & nn. 2-4, and the

record belie his claim. For example, trial counsel said to the

court at sidebar, “Remember that guy Phil Hartman? Remember his

wife or girlfriend who shot him? They just filed suit against the

Zoloft manufacturer because of the enhanced aggression.”

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akathisia and that (2) this failure resulted in the forfeiture of

an involuntary intoxication defense. 

On September 25, 2009, the district court denied the

petition for habeas relief. Shuman v. Spencer, 657 F. Supp. 2d 3

268, 276 (D. Mass. 2009). Shuman appealed and filed a motion for

a certificate of appealability, which the district court granted on

October 28, 2009.

II. Discussion

A. Standard of Review

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

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

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

differently, the district court opinion, while helpful for its
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reasoning, is entitled to no deference.” Healy v. Spencer, 453 F.3d

21, 25 (1st Cir. 2006).

Where the petitioner's claim was adjudicated on the merits

by the state court, as it was here, our review of a federal claim

for habeas relief is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Pursuant to § 2254(d), 

An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any

claim that was adjudicated on the merits

in State court proceedings unless the

adjudication of the claim--

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme

Court of the United States; or 

(2) 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. 

“[C]learly established Federal law” refers to the holdings

of the Supreme Court's decisions at the time of the state court

decision. Carey v. Musladin, 549 U.S. 70, 74 (2006) (internal

quotation marks omitted). When applying § 2254(d)(1) or (2), a

decision can still be “reasonable” even if the reviewing court

“concludes in its independent judgment that the relevant state court

decision applied clearly established federal law erroneously or

incorrectly." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)

(internal quotation marks omitted and emphasis added).

“[U]nreasonable” under this section of the AEDPA means something
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greater than incorrect or erroneous. See id. Finally, even if a

state court's error rises to the level of being “unreasonable,”

habeas relief remains unavailable unless the petitioner can also

show that the error "had a 'substantial and injurious effect or

influence in determining the jury's verdict.'” Delaney v. Bartee,

522 F.3d 100, 105 (1st Cir. 2008) (quoting Brecht v. Abrahamson, 507

U.S. 619, 631 (1993)).

The clearly established federal law relating to

ineffective assistance of counsel claims is based on Strickland v.

Washington, 466 U.S. 668 (1984). Strickland established that the

Sixth and Fourteenth Amendments to the United States Constitution

entitle a defendant "to the effective assistance of counsel in all

state criminal prosecutions which may result in the loss of his

liberty." Yeboah-Sefah, 556 F.3d at 70 (citing Strickland, 166 U.S.

at 684). Of course, “to establish constitutionally ineffective

assistance of counsel as a ground for federal habeas relief, the

petitioner bears a doubly heavy burden.” Id. On direct appeal,

to demonstrate ineffective assistance under Strickland, Shuman must

show: “'(1) deficient performance by counsel (2) resulting in

prejudice.'” Id. (quoting Malone v. Clarke, 536 F.3d 54, 63 (1st

Cir. 2008)). In this context, “deficient” does not mean merely

lacking or wanting; it “requires showing that counsel made errors

so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466
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U.S. at 687. Likewise, prejudice cannot be proved by any small

quantum; it “requires showing that counsel's errors were so serious

as to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id.

But even this exacting demonstration is not enough in a

habeas proceeding. Under AEDPA, "[t]he pivotal question is whether

the state court's application of the Strickland standard was

unreasonable. This is different from asking whether defense

counsel's performance fell below Strickland's standard," which is

the question we would ask if the claim came to us "on direct review

of a criminal conviction in a United States district court."

Harrington v. Richter, 131 S. Ct. 770, 785 (2011). In addition,

AEDPA sets out a separate and demanding standard applicable to

review of a state court's factual findings. Pike v. Guarino, 492

F.3d 61, 68 (1st Cir. 2007). The state court's factual findings are

“presumed to be correct” unless the petitioner can rebut this

“presumption of correctness” with “clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). 

An ineffective assistance of counsel claim, we have said,

is a mixed question of law and fact and should therefore be reviewed

under the "unreasonable application" clause of § 2254(d)(1).

Yeboah-Sefah, 556 F.3d at 70. "When § 2254(d) applies, the question

is not whether counsel's actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied
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Strickland's deferential standard." Harrington, 131 S. Ct. at 788.

We find that there is.

B. Ineffective Assistance of Counsel

Shuman first insists that trial counsel’s failure to fully

investigate and present the link between his ingestion of Zoloft and

the drug’s immediate side effects, specifically akathisia and

enhanced aggression, rises to the level of constitutional

deficiency. In support of this assertion, Shuman relies on

decisions from our sister circuits that discuss trial counsel

ineffectiveness in failing to adequately present a defense -- each

of which is easily distinguishable from the case before us. See,

e.g., Washington v. Murray, 952 F.2d 1472, 1476-79 (4th Cir. 1991)

(claims by petitioner that trial counsel was ineffective in failing

to develop and present to jury the results of exculpatory laboratory

tests on semen stains found on blanket recovered from bed where rape

of victim allegedly occurred entitled petitioner to evidentiary

hearing); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991) (“Once

a defendant identifies potential alibi witnesses, it is unreasonable

not to make some effort to contact them to ascertain whether their

testimony would aid the defense.”); Harris v. Reed, 894 F.2d 871,

877-79 (7th Cir. 1990) (defendant's attorney's failure to call

eyewitnesses who saw another man run from scene of shooting

constituted ineffective assistance of counsel). 
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None of the cases cited above, on which Shuman so heavily

relies, casts doubt on the reasonableness of the SJC's decision that

trial counsel was not ineffective. Washington, Grooms, and Harris

are on their facts entirely inapposite. None dealt with a defense

actually presented but not highlighted as being a separate defense.

Shuman also contends that trial counsel’s admitted failure

to obtain his complete medical file from Bridgewater, where Shuman

was treated after the killings, rises to the level of constitutional

deficiency. While we in no way condone this apparent oversight, we

note that even if trial counsel had obtained the complete file, no

one at Bridgewater ever diagnosed Shuman with akathisia. Thus, it

would be highly speculative to assume that the file would somehow

have led counsel to put on a pure Zoloft-induced akathisia defense

which Shuman now prefers.

In finding that trial counsel's performance was not

deficient the SJC said,

The Zoloft defense that Shuman now

offers, and the insanity defense that

trial counsel presented, are very

close indeed; both aver that drugs,

in combination with Shuman's

preexisting depression, contributed

to his aggressive behavior. Trial

counsel argued in his opening

statement that the defendant was

“crank[ed] ... up on Zoloft” by his

doctor, and was a man “in a state of

depression, with his medical

condition, on Zoloft,” who had been

driven to the psychotic state that

resulted in his pulling the trigger.

Counsel also repeatedly argued in his
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closing that Shuman was affected by

a “toxic soup” of medication, and had

been “jack[ed]” up on “meds,”

including Zoloft. Application of the

term “akathisia” to the behavior

rather than “heightened aggression”

is of little consequence.

Id. at 1093. The SJC reasonably reached the conclusion that trial

counsel's performance was not deficient and, therefore, only

summarily addressed the second prong under Strickland, that Shuman

was not prejudiced by any difference between the two defenses. See

id. On habeas review, Shuman has the daunting task of showing that

the SJC was unreasonable in rejecting the Strickland claim. He has

failed to make that showing.

Nor do we find any basis to conclude that the SJC's

ineffective assistance of counsel analysis was based on an

unreasonable determination of the facts in light of the evidence

presented at trial. See 28 U.S.C. § 2254(d)(2). The SJC found that

trial counsel in fact linked Zoloft to enhanced aggression in his

opening statement, on cross-examination, and in his closing

argument. Shuman has not succeeded in rebutting these presumptively

correct findings. Because the SJC's findings reflect a reasonable

reading of the record, we must uphold its analysis of the Strickland

claim based on those facts. Id.

III. Conclusion

Nothing before this court leads us to conclude that the

SJC was unreasonable in its application of Strickland. As a result,
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we affirm the district court's holding denying Shuman habeas relief.