MANLEY v. LIBERTY

Filing 5

REPORT AND RECOMMENDED DECISION re 1 PETITION for Writ of Habeas Corpus filed by JAMES M MANLEY.. Objections to R&R due by 2/24/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JAMES M. MANLEY,
Petitioner
v.

RANDALL LIBERTY,
Respondent

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1:16-cv-00249-DBH

RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION
In this action, Petitioner James Manley seeks relief, pursuant to 28 U.S.C. § 2254,
from his state court conviction and sentence on charges of elevated aggravated assault and
violation of conditions of release. (Petition, ECF No. 1.) Through his section 2254
petition, Petitioner asserts a claim of ineffective assistance of trial counsel based on
counsel’s failure to obtain and present sufficient evidence of the victim’s prior history of
self-inflicted harm, in support of Petitioner’s defense theory that the victim caused his own
injuries; Petitioner argues that the Maine Supreme Judicial Court, sitting as the Law Court,
unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), when it held that
counsel’s performance was not deficient.1 (Petition at 57-59.) Petitioner also argues that
the Court should conclude, on de novo review, that he was prejudiced by counsel’s
substandard performance. (Id. at 73.)

Petitioner limits his claim to a legal argument; he does not contest the state court’s factual findings, and
he does not seek an evidentiary hearing. (Petition, ECF No. 1 at 14.)
1

The State requests that the Court deny the section 2254 petition. (Response, ECF
No. 3 at 9.) After consideration of the parties’ arguments, I recommend the Court deny
relief and dismiss the petition.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Law Court summarized the facts as follows:
The charges arose from an incident that occurred on September 19, 2010, at
the rooming house where Manley and the victim lived. Early in the evening,
Manley and the victim had a verbal confrontation. Later that night, Manley
followed the victim into his room and repeatedly stabbed the victim’s left
arm, left shoulder, and back.
Manley v. State, 2015 ME 117, ¶ 3, 123 A.3d 219.
The state court record (ECF No. 4) reflects that Petitioner was indicted in November
2010 on four counts: (1) elevated aggravated assault (Class A), 17-A M.R.S.
§ 208-B(1)(A); (2) violation of conditions of release (Class E), 15 M.R.S. § 1092(1)(A);
(3) terrorizing (Class D), 17-A M.R.S. §§ 210, 1252(4); and (4) obstructing report of crime
or

injury

(Class

D),

17-A

M.R.S.

§

758(1)(B).2

(State

v.

Manley,

No. BATSC-CR-2010-00281 (Me. Super. Ct., Sag. Cty.), Indictment at 1-2, Docket Sheet
at 2.)

A two-day jury trial was held in May 2011; the jury found Petitioner guilty of

elevated aggravated assault, but found him not guilty of the charges of terrorizing and

The Law Court noted a mistake in the indictment regarding the crime of terrorizing: “The indictment
mistakenly states that 17-A M.R.S. § 210(1)(A) (2014) is a Class C crime. The facts in the indictment
clearly allege a Class D crime pursuant to section 210(1)(A), not a Class C crime pursuant to section
210(1)(B). Nevertheless, Manley was not convicted of this charge.” Manley v. State, 2015 ME 117, ¶ 2 n.2,
123 A.3d 219. Title 17-A M.R.S. § 1252(4), which was also cited in the indictment for the offense of
terrorizing, states in part: “If the State pleads and proves that a Class B, C, D or E crime was committed
with the use of a dangerous weapon then the sentencing class for such crime is one class higher than it
would otherwise be.” The terrorizing charge is not at issue in Petitioner’s 28 U.S.C. § 2254 action.
2

2

obstructing a report of crime or injury. (Judgment and Commitment at 1, Docket Sheet at
4.) Petitioner pled guilty to the charge of violation of his conditions of release. (Judgment
and Commitment at 1, Docket Sheet at 4.)
The court sentenced Petitioner to a prison term of 22 years on Count 1 (elevated
aggravated assault), with all but 20 years suspended, followed by a term of six years of
probation. (Judgment and Commitment at 1, Docket Sheet at 5.) The court also sentenced
Petitioner to a concurrent term of six months on the violation of conditions of release
conviction. Manley, 2015 ME 117, ¶ 4, 123 A.3d 219. (Judgment and Commitment at 1,
Docket Sheet at 6.)3
In January 2012, the Sentence Review Panel denied Petitioner’s request to appeal
from his sentence. (State v. Manley, SRP-11-473, Order (Jan. 23, 2012).) In May 2012,
the Law Court affirmed the conviction. (State v. Manley, No. Sag-11-472, Mem-12-45
(May 15, 2012).) Petitioner did not file a petition for a writ of certiorari.
In June 2012, Petitioner filed a state court petition for post-conviction review.
(Manley v. State, No. BATSC-CR-2012-00089, Post-conviction Petition, Docket Sheet at
1.) Counsel was appointed, the petition was amended, and an evidentiary hearing was held
in January 2014. (Docket Sheet at 1-3.) Petitioner raised three issues, one of which is the

3

The judgment indicates that the court imposed a prison term of 90 days on Count 2 for violation of
conditions of release. (Judgment and Commitment at 1.) The docket sheet indicates that the term was to
be six months. (Docket Sheet at 6.) The Law Court noted that the prison term on Count 2 was six months.
Manley, 2015 ME 117, ¶ 4, 123 A.3d 219.
3

claim asserted in Petitioner’s section 2254 petition.4 In April 2014, the Superior Court
denied the petition. (Decision and Judgment at 1, 11, Docket Sheet at 4.)
In September 2014, the Law Court granted Petitioner a certificate of probable cause
to appeal. (Manley v. State, No. Sag-14-168, Docket Sheet at 1.) On appeal, Petitioner
argued the ineffective assistance claim he asserts in this matter (i.e., counsel’s failure to
obtain and present certain evidence regarding the victim). Manley, 2015 ME 117, ¶ 4 n.3,
123 A.3d 219. In August 2015, followed by a corrected decision in September 2015, the
Law Court determined the Superior Court did not err when it found Petitioner had received
“reasonably effective assistance,” and thus affirmed the decision of the Superior Court. Id.
¶¶ 1, 18. The Law Court noted the Superior Court’s findings of fact, which the Law Court
concluded were supported by competent evidence:
The court made the following findings of fact, which are supported by
competent evidence in the post-conviction record. Manley’s trial counsel has
engaged in the practice of law for more than twenty years with more than
half of his practice focused on criminal defense. He has handled thousands
of criminal cases, and he has participated in at least thirty criminal jury trials.
For Manley’s case, the attorney retained a private investigator to explore
various theories of defense, including an alternate suspect theory. Because
little support emerged for the alternate suspect theory from the investigator’s
work, and because the discovery furnished by the State indicated that the
victim had some history of self-inflicted injury, the attorney focused his
defense strategy on the theory that the victim caused his own injuries.
Although the attorney was aware that the victim had received treatment at
various hospitals, he was concerned that attempting to obtain the victim’s
treatment records would alert the State to his strategy. Therefore, the attorney
elected to rely on what he had obtained through discovery, and he did not
subpoena the victim’s medical records.
4

The other two claims Petitioner pursued in the state court post-conviction hearing, but not in later
proceedings in the state court or in his section 2254 petition, were ineffective assistance for counsel’s failure
to exclude an in-court identification, and ineffective assistance for counsel’s failure to offer evidence of a
recorded telephone call in which Petitioner unequivocally denied that he stabbed the victim. Id. ¶ 4 n.3.
4

During cross-examination of the victim, the attorney brought out that the
victim had deliberately injured himself in the past and, at the time of the
incident, was depressed about the death of his mother. In addition, the
attorney elicited testimony from the victim that, while he was being treated
for the injuries resulting from the incident, hospital staff asked him whether
he had stabbed himself. Manley’s counsel was also able to get the victim to
testify that he told the hospital staff that he had considered cutting his own
throat earlier that night.
The victim’s medical records reveal six incidents of actual or threatened
self-injury, including at least two incidents of stabbing occurring eight or
nine years before the events that gave rise to these charges. The records also
corroborate a pattern of self-injury at times of stress.
Although the post-conviction court found that the records would have lent
more weight to the defense theory of self-injury, it concluded that Manley
did not meet his burden “to make at least an initial showing of ineffective
assistance of counsel” and denied Manley’s petition. In part, this was based
on the court’s finding that the location and nature of the stab wounds strongly
suggested that the victim could not have inflicted all of them himself, and on
its determination that the details of self-harm that counsel had elicited were
relevant and useful.
Id. ¶¶ 5-9. The Law Court concluded:
In this case, where the court found that trial counsel’s cross-examination of
the victim regarding his recent statements and thoughts about self-harm were
“more relevant, compelling and immediate than any of the historical
incidents that could have been brought out through the medical records,” we
agree with the post-conviction court that Manley failed to show that the
attorney did not provide reasonably effective assistance.
Id. ¶ 17. The Law Court held that its decision was based on the first prong of the Strickland
test: “Because we find that Manley’s attorney provided reasonably effective assistance,
we do not reach the second prong of the Strickland analysis regarding prejudice.” Id. ¶ 18.

5

Petitioner timely filed a section 2254 petition on May 16, 2016.5
II.

DISCUSSION

A. Legal Standards
In Strickland, the Supreme Court set forth the federal constitutional standard by
which claims of ineffective assistance are evaluated; Strickland requires a petitioner to
demonstrate that “counsel’s representation fell below an objective standard of
reasonableness,” and that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 688, 694. A court need not “address both components of the inquiry if the
defendant makes an insufficient showing on one . . . .” Id. at 697. Regarding the prejudice
inquiry, a court considers “the totality of the evidence,” and “a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Id. at 695-96. “[T]he ultimate focus of inquiry must be on
the fundamental fairness of the proceeding.” Id. at 696.
A federal court does not conduct an independent review under Strickland when the
state has adjudicated the claim; habeas relief is not available on claims that have been
adjudicated on the merits in the state court, unless the state court adjudication was contrary

Title 28 U.S.C. § 2244(d)(1) states in pertinent part: “A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of – (A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” Section 2244(d)(2)
provides: “The time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
5

6

to or an unreasonable application of federal law, or it involved an unreasonable
determination of the facts.6 See 28 U.S.C. § 2254(d).7 “Since we are considering a habeas
challenge, we are not actually tasked with deciding whether [the petitioner’s] counsel’s
performance fell short of Strickland’s requirements; rather, the ‘pivotal question is whether
the state court’s application of the Strickland standard was unreasonable,’” pursuant to
section 2254(d)(1).

Hensley v. Roden, 755 F.3d 724, 736 (1st Cir. 2014) (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).
“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. If a state court applied the correct standard, i.e., the Strickland standard,
“its conclusion that [counsel’s] performance was not deficient constitutes an ‘unreasonable
application’ of that law only if the court ‘unreasonably applie[d] that principle to the facts
of the prisoner’s case.’”

Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005) (quoting

Williams v. Taylor, 529 U.S. 362, 413 (2000)). “‘A state court's determination that a claim

The final state court adjudication on the merits is the decision under review in a petitioner’s section 2254
action. Greene v. Fisher, 565 U.S. 34, 40 (2011).

6

7

Title 28 U.S.C. § 2254(d) provides:
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.
7

lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on
the correctness of the state court's decision.’” Woods v. Etherton, --- U.S. ---, ---,
136 S.Ct. 1149, 1151 (2016) (per curiam) (quoting Harrington, 562 U.S. at 101) (quotation
marks omitted).

Claims of ineffective assistance of counsel are subject to a

“‘doubly deferential’” standard of review, in deference to both the state court and defense
counsel. Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
Petitioner asks the Court to apply a de novo standard of review to the prejudice
prong of the Strickland analysis, and to determine that Petitioner was prejudiced by
counsel’s failure to obtain and present the victim’s prior medical records. (Petition at 73.)
Although the State’s response to the section 2254 petition does not discuss explicitly
Petitioner’s argument for a de novo standard of review, the State apparently contends that,
pursuant to section 2254(d)(1), a single deferential standard of review applies to the
ineffective assistance claim. (Response, ECF No. 3 at 5-7.)
Supreme Court precedent provides for a de novo standard of review when evaluating
a prong of the Strickland test not reached by any of the state courts: “Because the state
courts found the representation adequate, they never reached the issue of prejudice and so
we examine this element of the Strickland claim de novo . . . .” Rompilla v. Beard, 545
U.S. 374, 390 (2005) (citation to record omitted) (citing Wiggins v. Smith, 539 U.S. 510,
534 (2003)). In Wiggins, the Supreme Court noted: “In this case, our review is not
circumscribed by a state court conclusion with respect to prejudice, as neither of the state
courts below reached this prong of the Strickland analysis.” 539 U.S. at 534.

8

In Petitioner’s case, however, the trial court decided the prejudice prong of the
Strickland analysis, and, therefore, neither Rompilla nor Wiggins is squarely on point. The
First Circuit evidently has not yet decided whether, when the state appellate court did not
reach an issue, the trial court’s decision on an issue constitutes an adjudication on the merits
subject to a deferential review under section 2254(d). “As our sister circuit has recognized,
‘[i]t is not clear whether an adjudication on the merits by a trial court, which is neither
explicitly affirmed on the merits nor explicitly rejected by the appellate court, is sufficient
to trigger [28 U.S.C. § 2254] review.’” Yeboah-Sefah v. Ficco, 556 F.3d 53, 80 (1st Cir.
2009) (quoting DeBerry v. Portuondo, 403 F.3d 57, 68 (2d Cir. 2005)). In Yeboah-Sefah,
the Court concluded that it need not decide the issue, because under either standard of
review, the petitioner was not prejudiced.8 Id.
While the standard of review on the prejudice issue is debatable, the Court is not
necessarily required to resolve the debate in this case. A federal court is not required to
analyze both prongs of the Strickland test. See Strickland, 466 U.S. at 697; Hensley, 755
F.3d at 738 & n.8 (concluding that the state court “did not unreasonably apply Strickland
when it concluded that Hensley’s attorney’s performance was not deficient,” and
“[b]ecause (as we see it) the [state court’s] determination regarding counsel’s performance
was not unreasonable, we need not get into Strickland’s prejudice component”). In the
event the Court determines that the Law Court did not unreasonably apply the Strickland

8

Other circuits are divided on the issue whether a de novo or a deferential standard of review applies.
Compare Thomas v. Clements, 789 F.3d 760, 766-67 (7th Cir. 2015) (applying a de novo standard of review)
with Collins v. Sec’y of Pennsylvania Dep’t of Corr., 742 F.3d 528, 545-46 & n.12 (3d Cir. 2014) (applying
a deferential standard of review, but noting that under a de novo standard, the result would be the same).
9

analysis when it concluded counsel provided reasonably effective assistance, the Court
does not have to address the prejudice issue and thus the standard of review on the prejudice
prong of Strickland is irrelevant.
B. Claim and Analysis
i. Whether the state court’s determination that counsel’s performance was
not deficient was an unreasonable application of Strickland
Petitioner argues, pursuant to section 2254(d)(1), that the Law Court’s
determination that counsel was not deficient constitutes an unreasonable application of the
performance prong of the Strickland analysis. (Petition at 69.) Petitioner characterizes
counsel’s failure to obtain and present the victim’s older medical records as a “complete
failure to investigate” the issue. (Id. at 59.) In support of his argument, Petitioner relies
on counsel’s post-conviction testimony (1) that counsel did not know what was contained
in the victim’s older medical records; (2) that counsel did not believe the victim’s older
medical records were relevant; and (3) that counsel answered affirmatively when the State
asked whether he made a conscious decision not to subpoena the victim’s prior medical
records in order to prevent the State from suspecting that counsel may use the victim’s
psychiatric history. (Petition at 67-68; Post-conviction Tr. at 35.)
Petitioner argues the state court’s application of Strickland is unreasonable because
counsel’s justification for not obtaining the older medical records lacks any merit. (Petition
at 68-69.) Petitioner first argues counsel could not present the victim’s history of self-harm
unless counsel had reviewed the medical records. (Id. at 68.) Second, Petitioner contends
that because “the discovery furnished by the State indicated that the victim had some

10

history of self-inflicted injury,” Manley, 2015 ME 117, ¶ 6, 123 A.3d 219, the State already
was aware that the victim’s psychiatric history may be at issue and, therefore, counsel’s
concern about disclosing the defense theory to the State was unfounded. (Petition at 68.)
Finally, Petitioner argues the prior medical records were important, because at trial the
victim denied he caused his own injuries. (Id. at 69; Trial Tr. at 140.)
Petitioner’s argument is unpersuasive.

The state court’s characterization of

counsel’s conduct as a decision not to conduct further investigation rather than, as
Petitioner asserts, a complete failure to investigate the issue, is reasonable. 9 Counsel
investigated and presented evidence on the issue at trial. Counsel elicited on
cross-examination that the victim had injured himself deliberately in the past; that at the
time of the incident, the victim was depressed; that when the victim was treated for the stab
wounds, hospital staff asked him whether he had stabbed himself; and that the victim “told
the hospital staff that he had considered cutting his own throat earlier that night.” Manley,
2015 ME 117, ¶ 7, 123 A.3d 219. The Law Court’s characterization of counsel’s decision
not to subpoena further medical records as a decision to forego further investigation, rather
than a “complete failure” to investigate, is thus supported in the record. Id. ¶ 16. (Postconviction Tr. at 34-35.)

The Law Court did not consider counsel’s decision a complete failure to investigate; rather, the Court characterized
it as a strategic decision “‘that further investigation would only produce more of the same . . . .’” Manley, 2015 ME
117, ¶ 16, 123 A.3d 219 (quoting 3 Wayne R. LaFave, Criminal Procedure § 11.10(c) (3d ed. 2007)). The Court
added that counsel’s decision not to pursue the victim’s prior medical records does not necessarily indicate
ineffectiveness, despite the fact that counsel might have been wrong. Id. The Court’s decision was based on the
Superior Court’s finding that the victim’s recent statements about self-harm were more relevant than historical
incidents of self-harm. Id. ¶ 17.
9

11

The issue is whether the state appellate court’s conclusion that counsel’s decision
not to conduct further investigation was not substandard constitutes a reasonable
application of Strickland. “[S]trategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 690-91 “In assessing the reasonableness of an
attorney’s investigation, . . . a court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable attorney
to investigate further.” Wiggins, 539 U.S. at 527. An unreasonable decision by counsel
not to investigate further could support a claim of ineffective assistance. See id. In support
of his claim, Petitioner relies primarily on the alleged unreasonableness of counsel’s
testimony that he decided not to request the additional medical records because he was
concerned the request would alert the State to his trial strategy.
Although the Law Court noted counsel’s testimony that he “was concerned that
attempting to obtain the victim’s treatment records would alert the State to his strategy,”
the Court’s decision was not based on counsel’s testimony that he wanted to prevent the
State from learning his trial strategy, but was based on the Superior Court’s finding that
the victim’s recent statements were more relevant than his history of self-harm. Manley,
2015 ME 117, ¶¶ 6, 17, 123 A.3d 219. Specifically, the Law Court wrote:
In this case, where the court found that trial counsel’s cross-examination of
the victim regarding his recent statements and thoughts about self-harm were
“more relevant, compelling and immediate than any of the historical
12

incidents that could have been brought out through the medical records,” we
agree with the post-conviction court that Manley failed to show that the
attorney did not provide reasonably effective assistance.
Id. ¶ 17.10
In applying Strickland, therefore, the state appellate court did not rely on the
reasonableness of counsel’s concerns regarding the risk of disclosure of his trial strategy.
Instead, the Court concluded counsel’s performance was not substandard based on the
relative relevance of victim’s recent statements and the victim’s history.
Petitioner cites several United States Supreme Court cases in his challenge to the
state court’s determination. The circumstances in this case, however, are significantly
different from the circumstances in the cases upon which Petitioner relies.
In Williams, the Supreme Court concluded that counsel’s performance at the
petitioner’s jury capital sentencing was deficient, because counsel failed to introduce
“five categories of mitigating evidence,” and counsel’s “tactics . . . could not justify the
omissions;” the Court also found that the petitioner was prejudiced by counsel’s deficient
performance.11 Williams, 529 U.S. at 372-73 & n.4, 396-98. Counsel did not present

10

The Court made its determination with knowledge of the medical history contained in the older records:
“The victim’s medical records reveal six incidents of actual or threatened self-injury, including at least two
incidents of stabbing occurring eight or nine years before the events that gave rise to these charges.
The records also corroborate a pattern of self-injury at times of stress.” Manley, 2015 ME 117, ¶ 8,
123 A.3d 219. Petitioner does not argue, under 2254(d)(2), that the Court’s decision was based on an
unreasonable determination of the facts.

11

Although Williams v. Taylor, 529 U.S. 362 (2000), as well as Wiggins v. Smith, 539 U.S. 510 (2003),
Rompilla v. Beard, 545 U.S. 374 (2005), and Porter v. McCollum, 558 U.S. 30 (2009), all involve
ineffective assistance claims in jury capital sentencing cases, that fact alone does not distinguish them from
Petitioner’s case. See Lafler v. Cooper, 566 U.S. 156, 164-65 (2012) (noting, based on precedent, that the
Sixth Amendment right to effective assistance of counsel applies during “pretrial critical stages,” as well
as at trial, on appeal, and in both capital and noncapital sentencing proceedings).
13

evidence that the petitioner was “borderline mentally retarded;” that his parents had been
imprisoned for criminal neglect of the petitioner and his siblings; that his father had beaten
him severely and repeatedly; that he had been returned to his parents’ custody after they
were released from prison; that he had received prison commendations; and that prison
officials provided testimony that among prisoners, the petitioner was among the least likely
to be violent, dangerous, or provocative. Id. at 395-96.
In Wiggins, counsel limited the investigation of mitigating evidence at sentencing.
Wiggins, 539 U.S. at 521. Counsel told the jury the evidence would show petitioner had
“a difficult life,” but “[a]t no point did [counsel] proffer any evidence of petitioner’s life
history or family background.” Id. at 515-16. Counsel had the presentencing investigation
report and obtained records of the petitioner’s foster placements; the Supreme Court noted
that “the [state] court did not conduct an assessment of whether the decision to cease all
investigation upon obtaining the PSI and [municipal social services] records actually
demonstrated reasonable professional judgment.” Id. at 527. The Court held that the state
court’s assumption that the investigation was adequate constituted an unreasonable
application of Strickland and, therefore, the state court’s deference to counsel’s strategic
decision was also unreasonable. Id. at 528. On de novo review of the prejudice prong of
the Strickland test, the Court found prejudice. Id. at 534, 538.
In Rompilla, the Court determined counsel’s performance at sentencing was
deficient based on counsel’s failure to examine the court file on the petitioner’s prior
conviction. The Court noted:

14

The unreasonableness of attempting no more than they did was heightened
by the easy availability of the file at the trial courthouse, and the great risk
that testimony about a similar violent crime would hamstring counsel’s
chosen defense of residual doubt. It is owing to these circumstances that the
state courts were objectively unreasonable in concluding that counsel could
reasonably decline to make any effort to review the file. Other situations,
where a defense lawyer is not charged with knowledge that the prosecutor
intends to use a prior conviction in this way, might well warrant a different
assessment.
545 U.S. at 389-90. The Court held that the state court determination that counsel was not
deficient was unreasonable, given that the state court did not discuss the petitioner’s prior
case file at sentencing. Id. On de novo review of the prejudice prong of the Strickland test,
the Court found prejudice. Id. at 390, 393.
In Porter, counsel failed to investigate or present evidence at sentencing of the
petitioner’s “abusive childhood, his heroic military service and the trauma he suffered
because of it, his long-term substance abuse, and his impaired mental health and mental
capacity.” 558 U.S. at 33. “The sum total of the mitigating evidence was inconsistent
testimony about Porter’s behavior when intoxicated and testimony that Porter had a good
relationship with his son.” Id. at 32. On de novo review, the Supreme Court held that
counsel’s performance was deficient. Id. at 39-40. The Court also held that the state
court’s “decision that Porter was not prejudiced by his counsel’s failure to conduct a
thorough−or even cursory−investigation is unreasonable.” Id. at 42.
Unlike in Williams, Wiggins, Rompilla, and Porter, in this case, counsel did not fail
to present any evidence on an issue of consequence. To the contrary, counsel presented
evidence the post-conviction court characterized as compelling, through the victim’s own
testimony, on the issue Petitioner maintains was critical.
15

During counsel’s cross-

examination of the victim, the victim revealed he had harmed himself in the past, that he
had been depressed recently, and that he considered cutting his throat on the day of the
incident involving Petitioner.
Petitioner’s situation is also distinguishable from the First Circuit case of Dugas
upon which Petitioner relies. In Dugas, the defendant was tried by jury and convicted of
arson; following his unsuccessful appeal, the trial court rejected his claim of ineffective
assistance, and the state supreme court denied review. Dugas, 428 F.3d at 319, 323, 325-26.
The First Circuit concluded counsel’s failure to consult an arson expert either to testify or
to help counsel prepare for cross-examination of the state’s experts, and counsel’s failure
to “conduct the research required to understand the principles of arson investigation on his
own,” id. at 323, constituted deficient performance, given “the inescapable need for expert
consultation” and the lack of any legitimate reason for the failure to engage an expert.
Id. at 331.
We cannot conclude that . . . [counsel’s] failure to thoroughly investigate the
“not arson” defense was justified by a tactical decision to pursue the defense
that another person caused the fire or his overconfidence in that alternative
defense. A tactical decision to pursue one defense does not excuse failure to
present another defense that would bolster rather than detract from the
primary defense.
Id. (quotation marks and alteration omitted). The Court noted that counsel told the jury
that he would demonstrate the problems with the state’s expert testimony, but counsel’s
“cross-examination demonstrated a clear lack of understanding of arson investigation and
the principles invoked by the state’s many expert witnesses,” and counsel “was hopelessly
unprepared to challenge the state’s expert witnesses.” Id. In Dugas, the First Circuit

16

concluded that “the state court’s decision rested on an unreasonable determination of fact
and an unreasonable application of Strickland to the facts.”12 Id. at 332.
In Dugas, counsel did not and could not justify on any rational strategic basis the
decision not to engage an arson expert to assist in the defense of the case. In essence,
counsel in Dugas was unable to present an effective challenge to the state’s expert
evidence. Here, counsel did not forego the presentation of an effective defense. Counsel
presented evidence regarding the victim’s history and state of mind on the day of the
incident, which evidence the post-conviction court determined was more relevant and
compelling to the defense.
In sum, the Law Court’s determination that counsel provided reasonably effective
assistance represents a reasonable application of Strickland. Petitioner’s arguments to the
contrary are unconvincing.

The First Circuit noted the district court’s observation that counsel may have believed, incorrectly, “that
a non-testifying defense expert might have to be made available to the state.” Dugas v. Coplan,
428 F.3d 317, 326 (1st Cir. 2005). The district court “found the state court’s reliance on that incorrect
understanding to be unreasonable.” Id. The First Circuit concluded that had counsel undertaken a
risk-benefit analysis, the “‘perils’ could not have outweighed the benefits of consulting an expert under any
rational calculus.” Id. at 333. On that basis, the Court concluded that the state court’s findings of fact to
the contrary were incorrect by clear and convincing evidence, and “the state court’s conclusion was an
unreasonable application of Strickland within the meaning of § 2254.” Id. at 333-34.

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In Dugas, the state court did not reach the issue of prejudice, and therefore, the First Circuit
reviewed the issue de novo. Id. at 343. The First Circuit concluded the district court erred when it
determined the petitioner was not prejudiced, and it vacated the district court’s grant of summary judgment.
Id. at 342. The Court noted that “[t]he case for prejudice here is close; we do not conclude that there was
prejudice, but only that, in the circumstances of this appeal, Dugas has raised sufficient doubts about the
outcome to avoid summary judgment.” Id. at 343. On that basis, the Court remanded the case for more
evidentiary development. Id. On remand, the district court held an evidentiary hearing and concluded that
the evidence was “not persuasive enough to meaningfully undermine the government’s case against Dugas
and affect the outcome of the trial,” and therefore counsel’s “deficient representation did not prejudice
Dugas within the meaning of Strickland.” Dugas v. Coplan, 506 F.3d 1, 13 (1st Cir. 2007). The First
Circuit noted that the prejudice inquiry was “fact-dominated,” and it affirmed on clear error review. Id. at
8, 13.
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ii.

Whether Petitioner was prejudiced

Petitioner asks the Court to apply a de novo standard of review to the issue of
prejudice, and argues he was prejudiced by counsel’s failure to obtain and present the
victim’s prior medical records. (Petition at 70.) Alternatively, he argues that if the Court
reviews the Superior Court’s decision on the issue of prejudice under the deferential
standard set forth in section 2254(d)(1), the decision was an unreasonable application of
Strickland because the Superior Court erroneously applied an outcome-determinative test
of prejudice. (Id. at 17-19.)
Because the Law Court’s determination that counsel’s performance was not
substandard was based on a reasonable application of Strickland, the Court is not required
to examine the prejudice issue. However, even if the Court were to conclude counsel’s
performance was substandard, the record would not support of finding of prejudice,
regardless of the standard of review.
Whether a deferential review under section 2254(d)(1) is appropriate in this case, or
whether the Court’s review is de novo, the issue of prejudice must be informed by the state
court’s factual findings. Any state court factual findings that bear upon the Strickland
prejudice analysis must be accorded deference. See Pike v. Guarino, 492 F.3d 61, 68 (1st
Cir. 2007) (holding that 28 U.S.C. § 2254(e)(1) applies to state court factual findings in a
claim on de novo review). “In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct.”
28 U.S.C. § 2254(e)(1).
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Petitioner does not contest the post-conviction court’s factual findings. (Petition at
14.) The state court found (1) that counsel cross-examined the victim regarding his past
history of self-injury; (2) that the evidence counsel elicited at trial regarding the victim’s
recent medical history was more relevant than the victim’s historical incidents of
self-injury; and (3) that the location and nature of the victim’s injuries “suggested strongly”
that they were not all self-inflicted. (Post-conviction Decision and Judgment at 6-8.)
The state court’s post-conviction findings preclude a determination that Petitioner
was prejudiced by counsel’s failure to obtain the victim’s medical records of prior incidents
of self-injury. To the extent the past history was significant, the trial evidence included
evidence that the victim had injured himself deliberately in the past. The jury also heard
the recent evidence (e.g., the victim had been depressed and had considered hurting himself
on the day of the incident with Petitioner) the post-conviction court found was more
relevant and compelling, yet the jury was evidently unconvinced the victim caused the
injuries in this case. The jury’s determination is consistent with the post-conviction court’s
finding that the location and nature of the injuries strongly suggested that all of the injuries
could not have been self-inflicted, which finding suggests there is not a reasonable
probability the outcome of Petitioner’s trial would have been different if additional
evidence of Petitioner’s self-injurious conduct had been presented.
Overall, the “totality of the evidence,” as reflected by the factual findings,
establishes that this is not a case in which the verdict was “only weakly supported by the
record.” Strickland, 466 U.S. at 695-96. On a claim of ineffective assistance of counsel,
the focus of the inquiry is whether Petitioner had a fair trial. See id. at 696. Here, counsel’s
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failure to obtain or introduce the victim’s older medical records did not render Petitioner’s
trial fundamentally unfair. See id. Accordingly, even if the Court were to determine the
state court unreasonably applied Strickland when it concluded counsel’s performance was
not substandard, Petitioner cannot prove prejudice and thus cannot prevail on his section
2254 petition.
III.

CONCLUSION

Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule
8 of the Rules Governing Section 2254 Cases, and I recommend the Court deny relief on
Petitioner’s petition for habeas relief under 28 U.S.C. section 2254, and dismiss the
petition. I also recommend the Court deny a certificate of appealability pursuant to Rule
11 of the Rules Governing Section 2254 Cases because there is no substantial showing of
the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days of
being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 10th day of February, 2017.

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