Lang v. Superintendent (MCI)

Filing 56

Judge Patti B. Saris: MEMORANDUM AND ORDER entered. Francis Lang's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is DENIED.SO ORDERED. (Lara, Miguel)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
FRANCIS LANG,
)
)
Petitioner,
)
)
Civil Action
v.
)
No. 16-11898-PBS
)
SUPERINTENDENT,
)
MCI-CEDAR JUNCTION
)
)
Respondent.
)
______________________________
)
MEMORANDUM AND ORDER
January 6, 2020
Saris, D.J.
INTRODUCTION
Petitioner Francis Lang was convicted of first-degree
murder based on a theory of extreme atrocity or cruelty in
connection with the 2005 fatal stabbing of Richard T. Dever. The
Massachusetts Supreme Judicial Court (“SJC”) unanimously denied
post-conviction relief, rejecting Lang’s claim of ineffective
assistance of counsel. Commonwealth v. Lang, 38 N.E.3d 262, 264
(Mass. 2015). Lang now petitions for a writ of habeas corpus
under 28 U.S.C. § 2254. He argues that his trial counsel was
ineffective by failing to investigate Lang’s mental health
history although counsel was put on notice that Lang suffered
from several mental health conditions. Lang’s medical history

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reflects diagnoses for bipolar disorder, anxiety, a seizure
disorder, and learning disabilities.
The Court assumes familiarity with Magistrate Judge Dein’s
thorough Report & Recommendation [Dkt. No. 43] and does not
repeat the facts of the case or each argument raised by the
parties here. After hearing, the Court DENIES Lang’s petition
for habeas corpus relief [Dkt. No. 1].
LEGAL STANDARDS
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), federal habeas corpus relief “shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings” unless the state court’s
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.

28 U.S.C § 2254(d). A reviewing court “must determine what
arguments or theories supported or . . . could have supported[]
the state court’s decision” and then the court must decide
whether “fairminded jurists could disagree” that those arguments
are consistent with prior Supreme Court decisions. Harrington v.
Richter, 562 U.S. 86, 102 (2011).

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Lang’s claim of ineffective assistance of counsel is
analyzed under the familiar two-prong test from Strickland v.
Washington, 466 U.S. 668 (1984). The first prong, deficient
performance, asks “whether an attorney’s representation amounted
to incompetence under ‘prevailing professional norms.’” Richter,
562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). The
second prong, prejudice, requires the petitioner to show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. While a petitioner
“must prove both prongs to prevail . . . ‘a reviewing court need
not address both requirements if the evidence as to either is
lacking.’” Malone v. Clarke, 536 F.3d 54, 64 (1st Cir. 2008)
(quoting Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007)).
DISCUSSION
The SJC issued a unanimous decision denying Lang’s claim of
ineffective assistance of counsel but the five justices were
split on their reasoning. Lang, 38 N.E.3d at 264-65. This Court
begins with the opinion authored by Justice Lenk, which
commanded a majority of justices, as the decision of the SJC.
The SJC held that the failure of Lang’s trial attorney to
investigate Lang’s mental health history constituted deficient
performance but concluded Lang did not suffer prejudice as a
result. Id. at 277-78. Assuming without deciding that counsel’s
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failure to investigate constitutes deficient performance, this
Court concludes that it was reasonable for the SJC to decide
“the result of the proceeding” would not have been different
absent that “unprofessional error[].” See Strickland, 466 U.S.
at 694. After review of the arguments that “supported or . . .
could have supported[] the state court’s decision,” the Court
holds that the SJC’s decision passes muster under AEDPA’s
deferential standard. See Richter, 562 U.S. at 102.
Lang’s trial counsel testified in post-conviction
proceedings that, even if he had investigated Lang’s mental
health history, he would still have chosen not to present any
mental health defense. Lang, 38 N.E.3d at 272 n.15. Counsel, who
had extensive experience in homicide cases, believed that a
mental health defense would undermine or at least dilute the
viable complete defense of self-defense. Id. at 270, 272. The
minority opinion of the SJC, authored by Justice Hines, agreed
that it was reasonable for counsel to forgo a mental health
defense in favor of self-defense, relying on Massachusetts cases
that upheld similar tactical decisions. Id. at 274 (citing
Commonwealth v. Spray, 5 N.E.3d 891, 905 (Mass. 2014);
Commonwealth v. Walker, 820 N.E.2d 195, 207 (Mass. 2005)). Thus,
the SJC could have reasonably concluded that even a full
investigation of Lang’s mental health would not have changed
counsel’s strategy at trial.
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The majority opinion of the SJC also determined that Lang
“offered no evidence indicating that he would have agreed to
present a lack of criminal responsibility defense at the time of
the original trial, and has clearly asserted that he would not
present the defense at a new trial.” Lang, 38 N.E.3d at 277-78.
During his post-conviction proceedings, Lang told Dr. Walters,
the Commonwealth’s psychiatric expert, “No, I’m not going to do
that, you mean insanity? . . . I don’t want to go to
Bridgewater.” Id. at 275 n.19.
The Magistrate Judge recommended allowing the habeas
petition on the ground that Lang could have presented diminished
capacity to the jury as an alternative to the complete defense
of self-defense, even if he was unwilling to present a defense
of lack of criminal responsibility. This approach of presenting
a diminished capacity defense as a fall back may have provided
the jury with mitigating evidence to reduce Lang’s conviction
from first-degree murder to a lesser included offense. See
Commonwealth v. Gould, 405 N.E.2d 927, 933-35 (Mass. 1980)
(mental impairment evidence can negate premeditation and extreme
atrocity or cruelty); Commonwealth v. Gaboriault, 785 N.E.2d
691, 698-99 (Mass. 2003) (mental impairment evidence can negate
specific intent and knowledge requirements). But Lang’s trial
attorney believed any mental impairment defense — even
diminished capacity – would have weakened the self-defense
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theory actually presented at trial. The SJC was not unreasonable
in concluding that the result of the proceeding would have been
unchanged by an investigation into diminished capacity.
The Court cannot say the SJC’s finding that Lang did not
suffer prejudice was “contrary to” Supreme Court law or based on
an “unreasonable determination of the facts.” See 28 U.S.C
§ 2254(d). At the very least, “fairminded jurists could
disagree” about whether the SJC’s conclusion was consistent with
Strickland and its progeny. See Richter, 562 U.S. at 102.
ORDER
Francis Lang’s petition for habeas corpus relief pursuant
to 28 U.S.C. § 2254 is DENIED.

SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
United States District Judge

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