Lee v. Alves

Filing 42

District Judge Angel Kelley: MEMORANDUM AND ORDER entered. For the reasons stated in the attached Memorandum and Order, Petitioner's 13 Writ of Habeas Corpus is DENIED. (Horvath, Courtney)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
SI FA LEE,
)
)
Petitioner,
)
)
)
Civil Action No. 21-CV-40092-AK
v.
)
)
NELSON ALVES,
)
SUPERINTENDENT AT MCI-NORFOLK )
)
Respondent.
)
)
MEMORANDUM AND ORDER ON LEE’S PETITION FOR
WRIT OF HABEAS CORPUS
ANGEL KELLEY, D.J.
On August 31, 2021, Petitioner Si Fa Lee (“Lee”) filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his 2016 conviction in Essex Superior Court
for first degree murder. [Dkt. 1]. Lee subsequently filed an Amended Petition, [Dkt. 13], which
Superintendent Nelson Alves (“Respondent”) opposed. [Dkt. 36]. For the reasons set forth
below, Petitioner’s Amended Petition for a Writ of Habeas Corpus is DENIED.
I.

BACKGROUND
Lee’s Amended Petition, filed on October 14, 2021 asserts two claims for relief: (1) he

was not provided with competent translators at trial, and (2) he was denied effective assistance of
counsel.
A.

Factual Background

As Lee’s claims do not dispute the underlying facts of the case, a brief overview drawn
from the Supreme Judicial Court’s summary of the facts will suffice.

1

In the early morning hours of September 27, 2011, three robbers broke into a
restaurant by climbing through a rooftop ventilation shaft. Once inside, the
robbers encountered the sixty-two year old victim, restaurant owner Shui Woo,
who had slept in his office that night. One robber, later identified as [Lee], struck
the victim, bound his feet and hands, and ordered him to open a safe. When the
victim failed to do so, the robbers beat him to death with a crowbar and a
hammer.
Commonwealth v. Lee, 483 Mass. 531, 532 (2019).
B.

State Court Proceedings

In May 2016, following a twenty-nine-day trial, a jury convicted Lee of murder in the
first degree on theories of extreme atrocity or cruelty and felony-murder, stealing by confining or
putting in fear, and armed assault with intent to murder a person sixty years or older.
Lee appealed, but before his direct appeal had been briefed, he moved for a new trial on
multiple grounds. In his motion for a new trial, Lee raised eight issues, including that the trial
judge did not appoint a competent interpreter and that trial counsel was ineffective. The Motion
Judge denied the motion, and Lee appealed to the Massachusetts Supreme Judicial Court
(“SJC”).
On appeal, Lee asserted many claims, including that he was not provided with a
competent translator and that he was denied effective assistance of counsel. Additionally, Lee
asked the SJC to exercise its authority pursuant to Mass. Gen. Laws ch. 278 § 33E and order a
new trial or direct entry of a lesser degree of guilt. On February 16, 2021, the SJC denied Lee’s
appeal.
C.

Federal Habeas Proceedings

On August 31, 2021, Lee filed a Petition for federal habeas relief. [Dkt. 1]. Lee filed an
Amended Petition two months later. [Dkt. 13]. The Respondent filed a Motion to Dismiss based

2

on failure to exhaust state court remedies [Dkt. 18], which this Court denied on September 19,
2022. [Dkt. 23]. Lee’s Amended Petition is now before the Court.
II.

LEGAL STANDARD
The standard of review of habeas corpus petitions is set forth in 28 U.S.C. § 2254(d), as

amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Harrington v. Richter, 562 U.S. 86, 97 (2011). Under this standard, a federal court may not grant
a writ of habeas corpus unless the underlying state court adjudication resulted in a decision that
either “(1) ‘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) ‘was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.’” Brown v. Ruane, 630 F.3d 62, 66 (1st Cir. 2011) (quoting 28 U.S.C. § 2254(d)(1)(2)).
Under subsection (d)(1), “a state court[’s] decision is ‘contrary to’ clearly established
federal law . . . if it ‘contradicts the governing law set forth in the Supreme Court’s cases or
confronts a set of facts that are materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from its precedent.’” Id. at 67 (quoting
John v. Russo, 561 F.3d 88, 96 (1st Cir. 2009)). A state court’s decision involves an
unreasonable application of clearly established federal law “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.’” Id. (quoting Williams v. Taylor, 529 U.S. 362,
413 (2000)) (alteration in original).
Relief under subsection (d)(2) requires “a showing that the state court decision ‘was
based on an unreasonable determination of the facts’ on the record before that court.” Porter v.

3

Coyne-Fague, 35 F.4th 68, 75 (1st Cir. 2022) (quoting 28 U.S.C. § 2254(d)(2)). “This
demanding showing cannot be made when ‘[r]easonable minds reviewing the record might
disagree’ about the finding in question.” Id. (quoting Brumfield v. Cain, 576 U.S. 305, 314
(2015)). “[A] state-court factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance.” Wood v. Allen,
558 U.S. 290, 301 (2010).
III.

DISCUSSION
In his Amended Petition, Lee advances two claims for relief: (1) he did not have a fair

trial because he was not provided with competent translators, and (2) he was denied effective
assistance of counsel when trial counsel failed to obtain a competent translator in the four years
leading up to trial and did not ensure that Lee was provided with a competent translator to assist
counsel in his representation of Lee during trial. The first claim must be assessed under
subsection 2254(d)(2). The second claim is subject to subsection 2254(d)(1).
A.

Claim One: Lee’s Right to a Competent Translator

Lee asserts that the SJC unreasonably found that two of his translators, Way Moy and
Stephanie Liu, were competent translators and that the SJC ignored evidence that Lee was unable
to understand the trial or assist in his own defense. Respondent contends that the SJC’s factual
determinations were objectively reasonable under subsection 2254(d)(2); there was no clearly
established federal law governing the right to a translator under subsection 2254(d)(1); and even
if a violation did occur, it was harmless error.

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1.

The SJC’s Findings

Lee objected multiple times to his translators during trial, and the trial judge repeatedly
heard argument as to the adequacy of the translators. At the conclusion of the trial, the trial
judge made detailed findings of fact to explain his rulings.
On appeal, the SJC summarized the trial judge’s findings as follows, supplementing them
with “uncontroverted evidence from the record”:
[Lee], who was born in China, does not speak English. At his January 2012
arraignment in the Superior Court, he filed a motion requesting funds for an
interpreter because “his native language is Cantonese[ ].” In subsequent pretrial
motions, [Lee] continued to represent that “his native language is Cantonese[ ]”
and “his native language is the Cantonese dialect of Chinese.” As a result, the
judge appointed Cantonese interpreters to interpret for [Lee] in twenty-three court
appearances. These pretrial matters included a complex motion to suppress
raising issues of cell site location information.
On January 13, 2016, the judge began to empanel a jury in the joint trial of the
defendant and [co-defendant] Sun. During seven days of jury selection, the judge
provided [Lee] with Cantonese interpreters, and Sun with Mandarin interpreters.
On January 20, 2016, [Lee] objected to the qualifications of one of the Cantonese
interpreters. He did not, however, indicate that he was unable to understand this
interpreter’s Cantonese.
[Lee’s] severed trial commenced on March 8, 2016, with two Cantonese
interpreters, Lewanna Li (Li) and Melissa Lo (Lo). On the fourth day of
empanelment, [Lee] asserted that “some of the interpretation” by Li was
inaccurate. Defense counsel informed the judge that [Lee] “does speak
Cantonese, but that is not his native Chinese language. His native Chinese
language is [Taishanese]. The language spoken in the Province of [Taishan],
China. . . . [A] [Taishanese] interpreter would be more suitable for [Lee].” The
judge continued to empanel with Lo as the sole interpreter, and scheduled a
hearing for the following day.
The next day, counsel stated that he had spoken to [Lee] regarding “the
[e]mpanelment process, his understanding of the process and the potential for
errors in translation.” After these discussions, trial counsel explained, [Lee] had
“clearly and unequivocally conveyed to [trial counsel] that he understood the
[e]mpanelment process.” Counsel added that [Lee] was “raising no issues with
regard to that whatsoever.”

5

The judge conducted a colloquy with [Lee] to confirm that he had knowingly and
voluntarily withdrawn his objection to the interpretation of the proceedings. [Lee]
said that he was born in China, and speaks Cantonese and Taishanese. When
asked about the conduct of the interrupted trial, [Lee] stated that he had had “a
little bit” of “difficulty” with the interpretation because some of the words spoken
during jury voir dire were not, in his opinion, interpreted. With respect to this
trial, [Lee] indicated that he understood that he had a right to “be present during a
trial, to understand what is happening and to be able to assist meaningfully
with . . . [his] defense.” After the colloquy, the judge found that “[Lee had] been
able to understand what [was] going on . . . and that [Lee had] knowingly,
willingly and voluntarily answered the [c]ourt’s questions and the [c]ourt [was]
comfortable to make a finding that the defendant [was] able to fully participate in
the proceedings.”
On April 5, 2016, the judge found Cantonese interpreter Stephanie Liu (“Liu”) to
be qualified to interpret pursuant to G. L. c. 221, § 92, and Mass. R. Crim. P. 41,
378 Mass. 918 (1979). [Lee] informed the judge that “he [was] much more
comfortable with [Taishanese] than he [was] in Cantonese,” and would “prefer a
[Taishanese] interpreter.” Thereafter, [Lee] expressed his dissatisfaction with
Liu. [Lee] contended that “he did not understand, because of poor interpretation,
much of what was said during the opening statements of counsel and during the
testimony of the witness [on the first day of trial].” The judge stated he did not
credit [Lee] “for so many reasons,” but would make specific findings of fact at a
later point. [Lee] asserted that he required a Taishanese interpreter “to vindicate
his constitutional rights.”
On April 12, 2011, [Lee] renewed his request for a Taishanese interpreter because
he had “only understood [ninety] percent of what was translated to him on the day
before.” The judge conducted a voir dire hearing to address [Lee’s] contention
that he did not understand the Cantonese interpreters. [Lee] waived the
interpreter privilege, see Mass. G. Evid. § 522(b) (2019), and Liu and Lo testified
that they were both able to speak to [Lee] in Cantonese and understood his
Cantonese responses. Lo added that she also spoke Taishanese, which she had
learned at a young age from her great-grandmother. She had not, however,
interpreted words into Taishanese until the day of the voir dire hearing.
The judge found “that [Lee] speaks Cantonese fluently” and that [Lee’s] claim he
did not understand the proceedings was not credible “to an exponential degree.”
The judge nonetheless agreed to appoint [Lee] a Taishanese interpreter. The next
day, the judge conducted a hearing and appointed Taishanese interpreter Way
Moy (“Moy”), who recently had retired as a staff interpreter for the New York
Supreme Court. [Lee] objected to Moy’s lack of certification in Massachusetts.
The following day, April 14, 2016, [Lee] expressed dissatisfaction with Moy’s
interpretation. Counsel said that [Lee] “speaks a variation of [Taishanese]” that
“Moy does not speak.” [Lee] characterized Moy’s Taishanese as “broken” or
“very old school[ ],” dating to the 1920s and 1930s. The judge found that Moy

6

was highly qualified in Taishanese and that [Lee] had received “the interpreter
that he wanted.”
Lee, 483 Mass. at 537–39.
The SJC noted that failure to provide an effective translator implicates multiple
Constitutional rights, including the Fifth Amendment due process right to understand the
proceedings 1 and the Sixth Amendment rights to confront adverse witnesses 2 and consult
meaningfully with counsel during trial. 3 Id. at 540. The SJC also identified the Massachusetts
statutory framework that ensures a defendant’s right to a court-appointed, qualified interpreter.
Id. (citing Mass. Gen. Laws ch. 221C, §§ 1-2; Mass. Gen. Laws ch. 221, § 92).
The SJC then reviewed the trial judge’s factual findings for abuse of discretion. Id. at
541. First, the SJC affirmed that “[t]he judge’s finding that the defendant spoke fluent
Cantonese, and understood the proceedings interpreted from English into Cantonese, is well
supported by the record.” Id. at 542. In support thereof, the SJC referred to (1) Lee’s
representations over the four years prior to trial that “his native language is Cantonese,” (2) a
colloquy wherein Lee withdrew his objections to the Cantonese interpreters, and (3) the fact that,
at one point, Lee specifically requested Cantonese interpreter Lo. Id.
Second, the SJC found that “[t]he judge’s denial of the defendant’s motion to remove
Liu, and the judge’s decision that Liu was competent, are also well supported by the record and
indicate no abuse of discretion.” Id. On appeal, Lee pointed to an exchange in the record

See United States v. Lopez-Collazo, 824 F.3d 453, 460-61 (4th Cir. 2016), cert. denied, 580 U.S. 1058 (2017); see
also United States ex rel. Negron v. New York, 434 F.2d 386, 388 (2d Cir. 1970).
1

See art. 12 of the Massachusetts Declaration of Rights; Commonwealth v. Garcia, 379 Mass. 422, 437 (1980); see
also United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973), cert. denied, 416 U.S. 907 (1974) (“right to confront
witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of crossexamination would be severely hampered”).
2

3

See United States ex rel. Negron, supra note 1, at 389.

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wherein Liu misinterpreted Lee’s testimony regarding the name of an unrelated restaurant. The
SJC reviewed the trial judge’s voir dire on the issue, during which Liu explained that the name of
the restaurant, Kowloon, was very similar to the Cantonese word “kowlong” meaning “dragon,”
which was part of the name of the victim’s restaurant. Id. at 543. The SJC concluded there was
“no basis to disturb the judge’s factual finding that there was ‘absolutely no issue as it relates to
[Liu’s] ability.’” Id. at 543.
Third, the SJC found that the trial judge’s findings that Moy was a competent Taishanese
translator, “[t]he defendant has not demonstrated that the judge’s findings are erroneous.” Id.
The SJC referred to the trial judge’s reasoning that Lee was able to respond, with Moy
translating, to 625 questions on direct examination and 300 questions on cross-examination. Id.
2.

Collateral Review

Lee submits his Petition under the theory that the SJC’s findings “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). 4 It is a basic principle of habeas review
that “[a] state court’s factual findings are presumed to be correct unless the petitioner rebuts the
presumption with clear and convincing evidence” and that “[t]his presumption applies to
determinations made by both state trial and appellate courts.” Gaskins v. Duval, 640 F.3d 443,
452 (1st Cir. 2011). Thus, “in order to be entitled to relief [under AEDPA], the petitioner must
meet his burden of demonstrating that the [SJC’s] decision reflects an unreasonable application
of the clearly established ‘arbitrary and disproportionate’ standard to the facts of his case.”
Brown, 630 F.3d at 72.

The Petition does briefly assert that “[t]he lack of an interpreter implicates fundamental due process rights” and
that, “[a]s a matter of fundamental fairness, [Lee] was entitled to a translator he could comprehend.” [Dkt. 1 at 3132]. While these statements sound in Constitutional law, there is no Supreme Court precedent on this issue, so relief
under 28 U.S.C. § 2254(d)(1) is foreclosed.

4

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Lee asserts that the following three findings of fact were unreasonable in light of the
evidence presented: (1) that Moy was a competent Taishanese translator, (2) that Liu was a
competent translator, and (3) that the Trial Court appropriately addressed Lee’s objections as to
the translators. Respondent avers that Lee has not demonstrated that the SJC’s findings of fact
were objectively unreasonable, and thus they require deference.
a)

Interpreter Moy

Lee contends that “[t]he trial judge did not make detailed findings regarding Moy’s
competence” instead relying on “a perfunctory colloquy with Moy” to find him competent. [Dkt.
13 at 22]. Lee claims that Moy was not qualified to translate Taishanese because he learned the
language from his cousin, he claimed to have been interpreting Taishanese since 1985 but
admitted he had not done so between 1985 and 2001, and he failed to verify the extent of his
work as a Taishanese interpreter with the Interpreter’s Office at the Supreme Court Criminal
Term in New York County. [Id.]. Furthermore, Lee asserts that the Trial Court repeatedly
disregarded Lee’s objections to Moy as a translator and evidence that Moy’s translations were
not adequate. [Id. at 23]. As examples, Lee highlights several exchanges during trial where Lee
was asked questions, and his answers were confused and nonresponsive. [Id. at 23-24].
As an initial matter, in addition to the deference demanded by AEDPA, judgments
concerning interpreters are “uniquely within the province of the trial judge.” Commonwealth v.
Garcia, 379 Mass. 422, 437 (1980). See Valladares v. United States, 871 F.2d 1564, 1566 (11th
Cir. 1989) (finding that a judge in direct contact with a defendant must be given wide discretion
to decide adequacy of interpreter); Chee v. United States, 449 F.2d 747, 748 (9th Cir. 1971) (per
curiam) (“the trial court has broad discretion in determining fitness and qualifications of
interpreters”).

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Here, deference to the trial judge’s decisions to discredit Lee’s objections is particularly
warranted as those decisions were “determinations of credibility and demeanor [which] lie
peculiarly within a trial judge’s province.” Davis v. Ayala, 576 U.S. 257, 274 (2015); see also
United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973). [S.A. Ex. 22 at 8-10; Ex. 25 at 13-18;
Ex. 28 at 47; Ex. 36 at 10; Ex. 44 at 8, 27-28, 30]. In his findings of fact, the trial judge
reviewed the record in its entirety and concluded that Lee had not established that he could not
understand his interpreters. [S.A. Ex. 44 at 5]. The SJC reviewed these findings, noting that,
with Moy translating, Lee was able to answer 625 questions posed by his counsel on direct
examination and 300 questions on cross-examination. Lee, 483 Mass. at 543.
Lee’s suspicions regarding Moy’s credentials and the isolated exchanges when Lee’s
answers were nonresponsive could give rise to the inference that Lee did not comprehend all of
what was being translated. They may even raise a colorable claim such that “fairminded jurists
could disagree on the correctness of the state court’s decision.” Hensley v. Roden, 755 F.3d 724,
730-31 (1st Cir. 2014). However, suspicions and inferences do not meet the high bar warranting
federal habeas relief. Applying the strict standards mandated under AEDPA, Lee has not
established that the SJC’s factual determinations were objectively unreasonable, nor has he
refuted the SJC’s factual determinations by clear and convincing evidence. 28 U.S.C. § 2254(d)(e)(1). Therefore, the factual findings of the trial and appellate state courts will not be disturbed.
b)

Interpreter Liu

Lee asserts that the SJC failed to grapple with the evidence that Lee could not understand
Liu’s translations into Cantonese. He submits that the SJC’s findings regarding Liu’s
competence as a Cantonese translator were “not responsive” to his objections, which were that
he, a Taishanese speaker, could not understand Liu’s Cantonese. [Dkt. 13 at 6]. As evidence of

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the comprehension gap, Lee refers to his objections to Liu on April 5, April 6, and April 12. [Id.
at 27; S.A. Ex. 21 at 5-7; Ex. 22 at 3-5; Ex. 25 at 6-7]. Lee also repeats his concern, voiced on
April 6, that Liu was mistranslating or misinterpreting his words.
Lee’s claim ignores the SJC’s earlier finding. Crucially, before determining that Liu was
a competent, Cantonese translator, the SJC endorsed the trial judge’s finding that Lee spoke
fluent Cantonese. As evidence of Lee’s fluency, the SJC cited to: (1) Lee’s repeated
representations over four years that “his native language is Cantonese,”; (2) the fact that during a
colloquy on the fifth day of trial he withdrew his objections to the Cantonese interpreters; and (3)
the fact that, at one point, he specifically requested the Cantonese interpreter, Lo. Lee, 483
Mass. at 542.
Beyond asserting that he is a native Taishanese speaker, Lee provides no evidence, let
alone clear and convincing evidence, to controvert the SJC’s finding that he speaks fluent
Cantonese. Having failed to carry his burden of showing that the SJC unreasonably determined
the facts in that regard, Lee’s argument that the SJC unreasonably determined that he could
understand Liu’s Cantonese must also fail. 5
c)

The Trial Judge

Lee contends that the SJC ignored the trial judge’s alleged mishandling of Lee’s
objections to the interpreters. As the lone example, Lee points to the following SJC
characterization of his objections:
On the fifth day of trial, the judge conducted a colloquy of the defendant, where
the defendant withdrew his objections to the Cantonese interpreters. In addition,
while seeking a Taishanese interpreter for himself, the defendant also requested
that the court assign Cantonese interpreter Lo.
Id.
Lee’s concern that Liu was mistranslating or misinterpreting his words in any meaningful way is pure conjecture.
Lee has not identified any instances in the record where Liu’s translations substantially deviated from Lee’s words.
5

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Lee disputes that he ever objected to or withdrew objections to the Cantonese
interpreters. The record shows that during the colloquy on March 16, Lee testified to
understanding most of the empanelment that had just taken place. [S.A. Ex. 16 at 9-13]. The
court then confirmed with Lee that he “understood the impanelment process, understood the
translation and [was] comfortable that [he] underst[ood] what [was] going on” to which Lee
responded, “Yes.” [Id. at 14-15]. With respect to that colloquy, Lee is correct that he did not
object to the Cantonese translators.
However, on March 14, Lee expressed to the court his dissatisfaction with Cantonese
translator Li, stating that she had been overheard by the Cantonese translator Lo mistranslating
certain words or phrases. [S.A. Ex. 15 at 22-23]. Additionally, Lee informed the court that his
native language was in fact Taishanese. [Id. at 23-24]. In response, at least one of the
interpreters believed a Taishanese translator would be more suitable. [Id.].
Considering that Lee objected to a Cantonese translator on March 14 and then attested to
understanding the proceedings fully on March 16, the SJC’s summary of his posture was not an
unreasonable determination of the facts.
Lee also contends that the SJC did not grapple with the trial judge’s decision to dismiss
Cantonese translator Lo over Lee’s objection. Lee has offered no evidence to show that the SJC
unreasonably overlooked facts that would have invalidated this decision. Nor can he. Lee
vigorously advocated for a Taishanese interpreter from March 14 to April 12. [S.A. Ex. 15 at
23-24; Ex. 21 at 5-15; Ex. 22 at 9-10; Ex. 25 at 7, 136]. When the court was finally able to
identify an eligible Taishanese interpreter, Moy, Lee objected to him on statutory grounds. [S.A.
Ex. 26 at 15-19]. He suggested that Cantonese interpreter Lo remain to fill in for Moy should
Moy require a break. [Id. at 22].

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Finding that Moy was highly qualified, the trial judge swore Moy in as translator. [Id. at
19-20]. The trial judge then dismissed Lo, pointing out that Lee had objected to previous
translators on the basis that he was not a native Cantonese speaker, therefore his suggestion to
retain Cantonese translator Lo was not persuasive. [Id. at 23-24]. Based on these facts, the SJC
reasonably left undisturbed the trial judge’s decisions regarding Lee’s translators.
B.

Claim Two: Ineffective Assistance of Counsel

Lee asserts that he received ineffective assistance of counsel in violation of the Sixth
Amendment on the grounds that his counsel’s failure to engage a competent translator to
translate their meetings and communications in the four years leading up to trial and during trial
rendered his performance objectively unreasonable and resulted in prejudice to the defense. The
Respondent contends that Lee’s claim is procedurally defaulted, and even if it weren’t defaulted,
the claim fails on the merits.
1.

The Relevant Standards

A petitioner establishes ineffective assistance of counsel if they show (1) “that counsel’s
performance was deficient;” and (2) “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance constitutes
performance that falls “below an objective standard of reasonableness under the circumstances.”
Yeboah-Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 2009) (quoting Sleeper v. Spencer, 510 F.3d
32, 38 (1st Cir. 2007) (internal quotation marks omitted). To demonstrate prejudice, a petitioner
must show “that, but for counsel’s unprofessional error, there is a reasonable probability that the
result of the proceeding would have been different.” Id. (quoting Sleeper, 510 F.3d at 39)
(internal quotation marks omitted). “Judicial scrutiny of counsel’s performance must be highly

13

deferential,” and the petitioner must overcome “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
For purposes of habeas review, “[t]he Strickland standard qualifies as clearly established
federal law.” Janosky v. St. Amand, 594 F.3d 39, 47 (1st Cir. 2010) (internal citations omitted).
Where a state court adjudicated a petitioner’s Strickland claims on the merits, the petitioner must
not only satisfy the deferential Strickland standard, but also the deferential § 2254
standard. Yeboah-Sefah, 556 F.3d at 70. As “[t]he standards created by Strickland and
§ 2254(d) are both highly deferential, . . . and when the two apply in tandem, review is doubly
so.” Harrington, 562 U.S. at 105 (internal citations and quotation marks omitted). A
federal habeas court therefore considers “whether the state court applied Strickland to the facts of
petitioner’s case in an objectively unreasonable manner.” Yeboah-Sefah, 556 F.3d at 71
(citing Malone v. Clarke, 536 F.3d 54, 63 (1st Cir. 2008)).
Furthermore, pursuant to the procedural default doctrine, a federal habeas court has no
authority to review a question of federal law decided by a state court if the decision of that court
rests upon an independent and adequate state procedural ground. Coleman v. Thompson, 501
U.S. 722, 729–30 (1991). “Procedural default of federal claims in state court is an independent
and adequate state-law ground barring habeas relief, so long as the state regularly follows the
rule and has not waived it by relying on some other ground.” Jewett v. Brady, 634 F.3d 67, 76
(1st Cir. 2011) (internal citations omitted).
2.

The SJC’s Findings

The SJC’s findings as to Lee’s ineffective assistance of counsel claim as it pertains to
translators are confined to the following footnote:

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The defendant also argues, for the first time on appeal, that he was deprived of
effective assistance because trial counsel visited him in jail eighteen times (over a
four-year period of pretrial detention), and that an interpreter was present for only
eight visits. Our case law strongly disfavors raising an ineffective assistance
claim on direct appellate review because the record is “bereft of any explanation
by trial counsel for his actions” (citation omitted). Commonwealth v. Gorham,
472 Mass. 112, 116 n.4, 32 N.E.3d 1267 (2015). To be entitled to relief, “the
factual basis of the claim [must] appear[] indisputably on the trial record.”
Commonwealth v. Zinser, 446 Mass. 807, 811, 847 N.E.2d 1095 (2006). The
defendant does not contend that counsel was unprepared in any manner. Nor does
he explain how he was prejudiced by the lack of an interpreter. Moreover, the
defendant does not mention that the record demonstrates that trial counsel visited
the defendant, with an interpreter, an additional forty-two times in the court house
holding cell.
Lee, 483 Mass. at 544 n.11.
3.

Collateral Review

Respondent suggests that the SJC’s footnote represents a rejection of Lee’s claim based
on adequate and independent state-law grounds, namely waiver, which effectuates a procedural
default. That argument is not persuasive. Even Respondent characterizes the SJC’s analysis of
the claim as “noting the lack of preservation” and making “reference to the lack of preservation.”
[Dkt. 36 pp. 18, 19 (emphasis added)]. Respondent cites Harris v. Reed as standing for the
proposition that a state court may reach the merits of a defaulted claim in an alternative holding.
[Id. p. 19 (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)]. However, the cited footnote
specifically provides that a state court may engage with the merits “as long as the state court
explicitly invokes a state procedural bar rule as a separate basis for decision.” Harris, 489 U.S.
at 264 n.10.
Here, the SJC acknowledged that raising an ineffective assistance of counsel claim on
direct appellate review is disfavored but went on to define the route to relief, i.e. “the factual
basis of the claim [must] appear[] indisputably on the trial record”). Lee, 483 Mass. at 544 n. 11
(citing Zinser, 446 Mass. 807, 811). The SJC then found that there was no evidence in the record

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to support the conclusion that counsel was unprepared or that Lee was prejudiced by the
perceived lack of a competent translator. Id. Nowhere did the SJC “explicitly invoke[] a state
procedural bar rule as a separate basis for decision.” Harris, 489 U.S. at 264 n.10. Instead, the
SJC clearly and solely rejected Lee’s ineffective of counsel claim on the merits. 6 The claim is
therefore not defaulted.
However, Lee’s claim cannot survive either prong of Strickland.
First, Lee makes no showing of deficiency other than stating that his counsel visited him
at the Middleton House of Correction eighteen times in the four years prior to trial and brought
an interpreter to only eight of those visits. [Dkt. 13 at 15; Dkt. 1, Ex. K]. Lee does not explain
how this fact rendered counsel so objectively inadequate as to fall outside the presumption of
reasonableness, nor does he contend with the 42 additional visits counsel made to Lee in lockup
during trial when counsel did bring an interpreter. [Dkt. 1, Ex. K].
Second, Lee proffers no evidence of prejudice. Lee suggests that the language barrier
“meant that Mr. Lee could not properly discuss his trial, or the possible defenses he might raise”
and queries “why [counsel] did not make earlier efforts to secure [a translator].” [Dkt. 13 at 16,
17]. Lee concludes that “[t]he record shows that Mr. Lee may have been deprived of [the right to
an interpreter] through his counsel’s conduct, yet the Supreme Judicial Court makes no effort to
discuss or explain why counsel’s conduct was somehow within the acceptable range of conduct
for any attorney.” [Id. at 17 (emphasis added)]. But hypotheticals and questions without tethers

Although the SJC did not state the standard by which it assessed the merits of Lee’s claim, it analyzed Lee’s other
claim of ineffective assistance that was not raised on habeas review under the “substantial likelihood of a
miscarriage of justice” standard set forth in Mass. Gen. L. ch. 278, § 33E. The First Circuit has concluded that the
Section 33E standard “is ‘at least as protective of the defendant’s rights as its federal counterpart.’” Lucien v.
Spencer, 871 F.3d 117, 129 (1st Cir. 2017) (quoting Kirwan v. Spencer, 631 F.3d 582, 590 n.3 (1st Cir. 2011)).
Because the SJC applied a standard that was more favorable to Lee than the federal Strickland standard, the SJC did
not “announce[] a rule of law that directly contradicts existing Supreme Court precedent.” Cronin v. Comm’r of
Prob., 783 F.3d 47, 50 (1st Cir. 2015).
6

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to the record cannot survive the doubly deferential standard of Strickland and AEDPA. Without
some evidence that, due to the language barrier, Lee was unable to communicate critical
information about his defense to his counsel or vice versa, Lee cannot establish that counsel was
ineffective.
IV.

CONCLUSION
For the foregoing reasons, Petitioner’s Amended Petition for a Writ of Habeas Corpus,

[Dkt. 13], is DENIED.
SO ORDERED.
Dated: September 25, 2024

/s/ Angel Kelley
Hon. Angel Kelley
United States District Judge

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