Civitarese v. Marchilli

Filing 31

District Judge Timothy S. Hillman: ORDER entered. MEMORANDUM OF DECISION AND ORDER. The Petition Under 28 U.S.C. § 2254 For Writ OF Habeas Corpus By A Person In State Custody 1 , is denied.(Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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v.
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COLETTE GOGUEN, Superintendent
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NCCI-GARDNER,
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Respondent.
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__________________________________________)
MAURICE CIVITARESE,
Petitioner,

Civil Action No.
16-40129-TSH

MEMORANDUM OF DECISION AND ORDER
September 30, 2019
HILLMAN, D.J.
Background
Maurice Civitarese (“Civitarese” or “Petitioner”) has filed a Petition Under 28 U.S.C. §
2254 For Writ Of Habeas Corpus By A Person In State Custody (Docket No. 1)(“Petition”)
against Colette Gardner, Superintendent, NCCI-Gardner1 (“Respondent”). Petitioner was
convicted in Massachusetts Superior Court of rape of a child by force (four counts), indecent
assault and battery on a person 14 years old or older (one count), assault with intent to rape a
child (one count), indecent assault and battery of a person under 14 (four counts), and open and
gross lewdness (one count). He was sentenced to 17-25 years. Petitioner filed a post-trial motion

1

Petitioner named as Respondent Raymond Marchilli who was the Superintendent of NCCI-Gardner at the
time he filed his Petition. Pursuant to Fed.R.Civ.P. 25(d), Colette Goguen, the current Superintendent of NCCIGardner, is automatically substituted as Respondent.

for new trial under Mass.R.Crim.P 30(b)(“Rule 30(b) Motion”), which was denied. The
Massachusetts Appeals Court (“MAC”) consolidated his direct appeal and his appeal from the
denial of his Rule 30(b) motion. The MAC affirmed his convictions and the denial of his motion
for new trial. The Supreme Judicial Court of Massachusetts (“SJC”) denied his application for
further appellate review (“ALOFAR”). He then filed his timely Petition in this Court asserting
the following grounds for relief:
Ground One: Petitioner was denied his Sixth Amendment Right to effective
assistance of counsel because his lawyer stated in his opening statement that the
victims had been assaulted by other individuals, but had no admissible evidence
so support this contention. Petitioner was prejudiced by counsel’s statement
because it effectively conceded that the victims had been sexually assaulted and
shifted the burden to Petitioner to identify the culprits.
Ground Two: The trial court deprived him of his constitutional right to testify in
his own behalf because his lawyer’s advice that he not testify was inadequate, that
is, such advice constituted ineffective assistance of counsel. More specifically, his
lawyer did not prepare him to testify and convinced him not to do so first, because
the jury would learn of his prior record, and second, because the judge would
impose a longer sentence if he were convicted and the judge believed he testified
falsely. This advice was erroneous.
Civitarese has exhausted state-court remedies with respect to both grounds for relief. For
the following reasons, the Petition is denied.
Facts2
The Underlying Crimes
The evidence presented at trial was that Civitarese sexually assaulted and raped two
young girls, K and S, while he was the live-in boyfriend of K’s mother and served as K’s and her

2

The following factual summary of the underlying crimes and the summary of the MAC decision infra, are
taken from the decision of the MAC affirming Civitarese’s convictions. See Commonwealth v. Civitarese, 88
Mass.App.Ct. 1103, 36 N.E.3d 79 (2015). I will include additional facts as necessary in my discussion of
Petitioner’s claims for relief.

2

siblings’ primary caretaker while K’s mother was working. S was a friend of the family who had
first met K’s mother when she was 11 years old. S, who had a “brother/sister relationship” with
K and her siblings, spent many weekends at K’s family’s home, and would often “sleep over.”
Civitarese’s abuse of K started when she was six or seven years old and ended when
she was approximately thirteen. It usually occurred when her mother was at work and her
brothers were playing outside or playing video games in their room. S was approximately twelve
or thirteen when the defendant assaulted her. Both victims were sexually assaulted in the family
home, in either K’s bedroom or the bedroom Civitarese shared with K’s mother. Essentially, the
assaults included touching and fondling of genitals; K was forced to perform oral sex on
Civitarese; digital penetration of both girls; and penile penetration of S. Civitarese told K to keep
what they were doing a secret, and said that if she told she “would get taken away again” from
her mother.3 Civitarese told S, during the rapes, that he loved her, and not to tell K’s mother
because she “would get mad.” K’s abuse stopped when Civitarese moved out of the family home
after a break-up with K’s mother; S’s abuse stopped after Civitarese raped her and she stopped
sleeping at the family’s home.
Post-Trial Proceedings
On June 21, 2012, Civitarese filed a direct appeal from his conviction to the MAC.4 On
October 7, 2013, Civitarese filed his Rule 30(b) Motion asserting two claims for relief: (1) his
lawyer rendered constitutionally ineffective assistance of counsel by making a promise in his
opening statement that other people committed the crimes charged, but then never attempted to

3

K’s mother had lost custody of all her three children for a period and they lived with their father during
that time. They were later returned to her.
4
Civitarese has not raised in his Petition any of the claims raised in his direct appeal.

3

introduce such evidence at trial; and (2) Civitarese’s decision not to testify was not voluntary and
knowing because his lawyer erroneously advised him that if he testified at trial, the jury would
learn of his prior drug convictions and if the trial judge found he gave false testimony, could
punish him by giving him a harsher sentence; Civitarese relied on this erroneous advice in
deciding not to testify. The MAC stayed Civitarese’s appeal pending disposition of his motion
for new trial.
In support of his Rule 30(b) Motion, Civitarese contended that his lawyer made the thirdparty culprit evidence the centerpiece of his defense. More specifically, trial counsel had become
aware (from Civitarese) that K’s mother had been sexually abused years before by her brother
Victor, and that K saw her Uncle Victor at family gatherings at a campground in New
Hampshire. His lawyer also learned that when she was 15, S had started dating a much older
man who she later married. Civitarese’s lawyer theorized that K and S had blamed Civitarese for
the sexual assaults to protect in K’s case, her Uncle Victor, and in S’s case, her boyfriend. He
did not file a motion in limine seeking advance approval from the judge to explore this theory
because he was afraid the judge would rule that such evidence would not be admissible. He
therefore raised the issue in his opening statement by communicating to the jury that during the
trial, he would produce evidence of “the third-party culprits.” The Commonwealth objected on
relevancy grounds. The trial judge determined that he could not determine relevancy at that time,
but cautioned Civitarese’s lawyer about making promises to jurors that remain unfulfilled.
Civitarese’s lawyer went on to tell the jurors that K’s mother and aunt Theresa had ben both been
sexually abused by Uncle Victor who K came into contact regularly. He told the jury that K’s
mother would testify about the abuse and the similarities with the abuse K suffered. He further
4

told the jury that S. had been bragging to other people that she had started dating somebody 18
years older than her when she was 15, that she saw this man during the “time period” and she
later married him. However, at trial, the jury never heard any evidence that Uncle Victor had
sexually assaulted K’s mother. As to his claim that he did not make a knowing and voluntary
waiver of his right to testify on his own behalf, Civitarese asserted that his lawyer advised him
that he had a right to testify and that the decision was ultimately his to make. At the same time,
his lawyer advised him that he did not think Civitarese would make a good witness because he
was nervous and emotional and would go off on “digressions.” He also warned Civitarese that
his testimony would be problematic because the jury would likely hear about his prior
convictions and because judge’s sometimes give defendants harsher sentences if they believe
they lied on the stand. On the last day of trial, Civitarese remained undecided—his wife and
other family members had urged him to testify, but his lawyer urged him not to do so. Based on
his lawyer’s advice, he decided not to testify. When asked by the trial judge in a colloquy
regarding his right to testify, Civitarese stated that he understood he had “an absolute right to
testify or not to testify,” and informed the judge he did not wish to testify. After holding an
evidentiary hearing, the trial judge denied the Rule 30(b) Motion.
As to Civitarese’s claim that he received ineffective assistance of counsel because his
lawyer indicated in his opening statement that he would present third-party culprit evidence the
trial judge made the following specific findings of fact and conclusions of law5:
1.
Civitarese’s lawyer was an experienced criminal attorney who had
tried over 200 criminal cases. He settled on three possible defense strategies: (a)
5

The trial judge’s findings of fact and conclusions of law are set forth in Commonwealth v. Civitarese,
Sup.Ct.Crim.Act. No. 2011-197 (Mass.Sup.Ct. Jan. 14, 2014)(unpublished opinion) attached as Ex. 4 to Supp.
Answer Vo. I (Docket No. 17).

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due to the families’ living situation which involved multiple moves and separation
of the family members, Civitarese had limited contact with the victims; (b) K had
frequent contact with a Department of Social Services (now Department of
Children and Families) social worker, a school counselor, teachers and family
members to whom she never disclosed that she had been sexually abused by
Civitarese, and (c) the third-party culprit defense6.
2.
Civitarese’s lawyer attempted to raise the third-party culprit
defense in his opening statement. The Commonwealth objected and the objection
was overruled.7 Both K and her mother testified at trial about K’s contacts with
Uncle Victor. Both testified that K attended family gatherings with Uncle Victor
in New Hampshire and that K was never alone with him. Because there was no
evidence that K had been alone with Uncle Victor, the trial judge concluded that
the sexual abuse of K’s mother and aunt, which had occurred many years before,
was not relevant and refused to allow the defense to pursue this line of inquiry.
3.
It would have been better if Civitarese’s lawyer had filed a motion
in limine to test the admissibility of the third-party culprit theory before
mentioning it in his opening statement. At the same time, Civitarese’s lawyer’s
duty “was to represent his client zealously and according to his best judgment.”
Civitarese’s lawyer did not file a motion in limine because he wanted to preserve
the advantage of surprise and because he felt that the judge would be more
receptive to admitting the evidence once a foundation had been laid.
4. Civitarese’s lawyer took a calculated risk—to raise the issue in a motion
in limine would have likely resulted in his being barred from mentioning the
third-party culprit theory in his opening statement. In his judgment that would
have forfeited an important advantage of planting reasonable doubt in the jury’s
mind. Moreover, although Civitarese’s lawyer mentioned K’s abuse by Uncle
Victor in his opening statement, he did not dwell on it and intentionally refrained
from promising specific testimony from a particular witness, less the evidence be
excluded.
5. The judge cited to SJC caselaw governing a lawyer’s failure to deliver
evidence after promising to do so in his opening statement: such conduct does not
automatically constitute ineffective assistance of counsel, rather the court must
look to whether such conduct reflected inadequate preparation, incompetency or
6

The trial judge substantially agreed with Civitarese’s version of how this proposed defense came about,
and the substance of the proposed defense.
7
In his opinion, the trial judge stated that “In hindsight, it seems clear that it would have been better for all
concerned had I sustained the objection, while leaving open the possibility of allowing the evidence in the mother’s
cross examination if it appeared admissible in light of whatever context had by then been developed.”

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inattention, and whether the subsequent failure to produce the evidence was a
decision forced upon the lawyer over which he had no control, or was otherwise
supported by “strategic justifications.” Commonwealth v. McMahon, 443 Mass.
409, 425 (2005)(citations omitted). The judge concluded that while in hindsight
the lawyer’s judgment was vulnerable to criticism, his reasons for proceeding as
he did were well founded and that his failure to “deliver” on the “promise” made
in his opening statement did not result from incompetence, lack of preparation or
inattention, but rather from a ruling by the court. The lawyer could not have
known at the time he made the remarks in his opening statement that he would not
be able to lay a sufficient foundation to pursue the line of inquiry at trial.
Moreover, the other two line of defenses were left intact and were presented
thoroughly and capably.
6. The trial judge determined that Civitarese’s lawyer took a strategic risk
that did not pay out, but whose likely damage to the defense was minimal at
worst. Thus, he concluded that Civitarese’s lawyer’s judgment on the matter did
not fall below the standard of the average fallible attorney and mention of the
issue in his opening statement likely did not damage his chance on other, more
viable theories of defense. The trial judge again cited to McMahon in which the
SJC quoted Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052 (1984),
the seminal Supreme Court case on ineffective assistance of counsel:
There is, in any opening statement, a risk that promised evidence
will not materialize. The decision whether to make an opening
statement, and, if so, what details to include in that statement, are
purely strategic, and the strategic benefit of announcing specific
anticipated testimony in the opening statement may outweigh the
risk that the testimony will not be available. ‘[S]trategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengable.’
As to Civitarese’s claim regarding his decision not to testify, the trial judge made
the following findings of fact and conclusions of law:
1.
From the start of his representation of Civitarese, his lawyer
thought he would make a problematic witness because he appeared nervous and
distractible tending to ramble and stray from the questions asked.
2.
Civitarese’s lawyer was concerned about two issues he feared
might come up were he to testify. K’s and S’s mothers had met when both were
visiting a correctional facility at which Civitarese was incarcerated. In addition to
being incarcerated, Civitarese also had substance abuse issues for which he
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received in patient treatment while he knew K’s family. That Civitarese did not
have access to K during the relevant time period was one aspect of the defense’s
strategy. Civitarese’s lawyer was understandably concerned that evidence of his
client’s drug use would be damaging to his case and that a detailed account by
Civitarese of his whereabouts and his contact and relationship with the family
might stray into both areas (his prior convictions and drug abuse).
3.
Civitarese’s lawyer filed motions in limine to address the
admissibility of his convictions and drug use. The Commonwealth indicated that
it did not intend to introduce evidence of Civitarese’s prior convictions either
directly or through witnesses. Nevertheless, his lawyer was concerned that
Civitarese’s inability to stay on point would inadvertently result in such evidence
coming in either on direct or cross examination.
4.
Civitarese contended at the hearing that his lawyer told him that if
he testified, he could be impeached with his prior convictions, which was
erroneous. The trial judge rejected Civitarese’s testimony and instead found that
his lawyer only expressed his concern that if Civitarese testified, he would say
something that would open the door to this evidence coming in.
5.
Civitarese lawyer expressed concern to him that if he testified and
that later the judge believed he had lied, he might get a harsher sentence because
the judge would believe he failed to take responsibility and had perjured himself.
Civitarese’s lawyer knew a judge could not lawfully do this but did not remember
if he explained that to Civitarese. Civitarese’s lawyer believed that judge’s
sometimes do impose harsher sentences for these reasons without saying so and
that it is a risk a defendant runs if he testifies. Thus, he so advised hid client.
6.
Civitarese admitted that he tends to ramble, and the judge observed
that this was true to some extent during the hearing but did not find he rambled
much. He also found that given the nature of the charges, Civitarese would be
more inclined to ramble at trial. The judge, therefore, credited the lawyer’s
testimony that Civitarese was nervous and distractible during the trial and the
months leading up to it. He further found that the lawyer had a genuine and
reasonable concern about Civitarese’s ability to remain on point, make a good
impression, and “avoid dangerous shoal waters” had he testified at trial. The
judge also noted that he recalled Civitarese looking very nervous during the trial;
he appeared much more relaxed during the hearing.
7.
The judge found troubling Civitarese’s lawyer’s advice that he
could receive a harsher sentence if he testified because Massachusetts law makes
clear that judges cannot do so, he personally never does so and does not feel his
colleagues do so. At the same time, he recognized it would be naïve to suggest
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that judges are perceived by the bar as they perceive themselves. The judge also
noted that in a matter as discretionary as sentencing, reasonable minds could
differ as to whether a sentence, particularly a harsh one, could be the product,
even unconsciously, of illicit unspoken concerns. Thus, he concluded that while
Civitarese’s lawyer’s advice on this subject was more cautious than necessary, he
concluded it did not fall below the level of the average fallible defense attorney,
nor did he find it particularly significant standing next to the other concerns he
had and shared with Civitarese.
8.
Despite voicing his concerns, Civitarese’s lawyer continued to
prepare him to testify throughout the trial—giving him pointers were he to take
the stand and giving him limited practice with direct examination. He did not
thoroughly prepare Civitarese, but what he did further convinced him that
Civitarese would not make a good witness.
9.
Civitarese’s lawyer told him that he needed to know whether he
intended to testify by the next to last day of trial (in order to properly prepare him
if he chose to do so). Civitarese had multiple conversations with his lawyer—in
person and by telephone—prior to making his decision. During each
conversation, his lawyer advised him not to testify. If Civitarese did not take his
advice (he believed he would), he intended to get him off the stand as soon as
possible so there would be minimal damage. Civitarese’s wife and other family
members were encouraging him to testify. Ultimately, Civitarese decided, based
on his lawyer’s advice, not to testify. The judge did not consider, because he
found it not credible, Civitarese’s testimony at the hearing that he telephoned his
lawyer while on the way to the courthouse the morning of the last day of trial and
was told he didn’t have to testify because his lawyer had uncovered “other
information” that obviated the need for his testimony.
10.
The judge was advised of Civitarese’s decision to not to testify
after the Commonwealth rested its case. The judge excused the jury and engaged
in a colloquy with Civitarese during which the trial judge explained in detail
Civitarese’s right to testify. Civitarese confirmed that he did not want to testify.
11.
The judge citing a Massachusetts case, determined that Civitarese
must prove by a preponderance of the evidence that but for his counsel’s
erroneous advice, he would have testified in his own defense. He concluded that
Civitarese’s waiver was fully knowing and voluntary. In making this finding he
noted that that the evidence produced at the hearing gave him little reason to
concluded otherwise. In support of this finding, the judge noted that Civitarese’s
testimony that his lawyer told him he could be impeached with his prior
convictions was not credible. He found that it was reasonable for his lawyer to
advise him that he would make a poor witness and that testifying could open the
9

door to evidence concerning his prior incarceration and drug rehabilitation.
Moreover, his lawyer’s further suggestion that he could be sentenced more
harshly if he testified while not legally accurate, reflects the lawyer’s suspicion
that it happens. In any event, the primary reason he advised him not to testify was
Civitarese’s demeanor and tendency to stray off topic and the judge did not
believe that the advice concerning a potential harsher sentence played a
significant—let alone, outcome determinative-role in the defendant’s decision not
to testify. Thus, Civitarese had failed to show that his waiver of his right to testify
was not knowing and voluntary, or that the advice he received from his lawyer
fell below the standard of the average fallible attorney.
Civitarese appealed the judge’s denial of his motion for new trial. The MAC consolidated
Civitarese’s direct appeal with his appeal of is motion for new trial. Civitarese sought review of
both claims raised on his Rule 30(b) Motion. The MAC made the following findings in denying
his appeal:
(1) Ineffective assistance counsel- making an unfulfilled promise in
opening statement. The MAC affirmed for essentially the reasons set forth in the
trial judge’s denial of Civitarese’s Rule 30(b) Motion. First, the MAC recapped
the trial judge’s primary findings. The MAC agreed with the trial judge that as to
his comments regarding Uncle Victor as a potential third-party culprit, the lawyer
“did not dwell on it, and he intentionally refrained from promising specific
testimony from a particular witness, lest the evidence be excluded.” The MAC
further noted that the judge found that as a strategic maneuver, defense counsel
had not filed, prior to trial, a motion in limine regarding the third-party culprit
defense as he wanted to “preserve the advantage of surprise,” and because he
believed the judge would be more receptive to the defense after counsel had more
fully developed the supporting evidence. The MAC also cited to the trial judge’s
finding that “[T]rial counsel’s failure to produce evidence to which counsel
alludes in an opening statement [does not] constitute[ ], in and of itself,
ineffective assistance of counsel in all cases.” … To succeed, the defendant must
show “that defense counsel’s failure to produce important evidence promised in
opening statements was ‘behavior ... falling measurably below that which might
be expected from an ordinary fallible lawyer,’ and deprived the defendant ‘of an
otherwise available, substantial ground of defense.’ Commonwealth v. Saferian,
366 Mass. 89, 96 (1974).” The MAC then made the following specific legal
conclusions and findings:
Our analysis focuses upon factors including the
nature and extent of the promise, any strategic justifications,
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and the impact on the jury when the promised evidence
was not produced. ‘There is, in any opening statement, a risk that
promised evidence will not materialize. The decision whether to
make an opening statement, and, if so, what details to include in
that statement, are purely strategic, and the strategic benefit of
announcing specific anticipated testimony in the opening statement
may outweigh the risk that the testimony will not be available.
‘Strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.’
Commonwealth v. McMahon, 443 Mass. 409, 425 (2005),
quoting from Strickland v. Washington, 466 U.S. 668, 690
(1984).
Here, we cannot say the defendant has shown that the
judge abused his discretion or that counsel’s actions were
both substandard and prejudicial. Compare Commonwealth v.
Jenkins, 458 Mass. 791, 810 n. 16 (2011) (“The defendant
asserts that he was prejudiced by his counsel’s promise that
he would present evidence of a third-party culprit in his
opening statement. That evidence promised in an opening
statement does not materialize does not necessarily amount
to ineffective assistance.... In any event, trial counsel did not
state that the evidence would be forthcoming, but carefully
presented the theory as a possibility”). We observe that the
prosecutor did not mention in his closing argument the lack of
evidence relating to the uncle or ‘otherwise attempt to profit
from defense counsel’s opening promise.’ Finally, as the judge
found, ‘although the defendant was not able to pursue his thirdparty culprit theory, the ... other principal lines of defense—limited
access, belated disclosure, and the inference that no sexual abuse
had occurred—were left fully intact and were presented thoroughly
and capably.’
(2) Ineffective Assistance of Counsel-- The Decision not to testify. The MAC
stated that for a defendant to succeed on a claim that counsel was ineffective in
advising him not to testify, the defendant must “prove, by a preponderance of the
evidence, that, but for his Counsel’s erroneous advice ... he would have testified
in his own defense.” The MAC noted that the judge credited Civitarese’s lawyer’s
testimony at the Rule 30(b)(6) Motion hearing that he had been concerned that the
defendant would make a problematic witness; during many interactions with the
defendant prior to trial, counsel had observed that the defendant appeared nervous
and distractible, tending to ramble and to stray from questions posed. In addition,
K’s mother and S’s mother had first met when visiting a correctional facility
where the defendant was incarcerated, and the defendant had been unavailable for
11

some part of the time period when the offenses occurred because he was
undergoing drug rehabilitation. Even though in response to a pretrial motion in
limine the judge had excluded evidence of both of those circumstances, counsel,
as the judge found, “had a genuine and reasonable concern about his client's
ability to make a good impression, stay on point, and avoid dangerous shoal
waters had he testified at trial.” Accepting counsel’s advice, the defendant
informed the judge at trial of his decision not to testify; the judge then explained
to the defendant that it was his choice, and that he had “an absolute right either to
testify or not to testify.” The defendant reiterated that it was his choice not to
testify.
The MAC found no error in the judge’s conclusion that “the defendant
has not shown that his waiver of his right to testify was unknowing or
involuntary, or that the advice he received from his counsel on the subject fell
below the standard of the average fallible attorney.” The MAC also discerned no
error in the judge’s determination that the “sentencing issue” (i.e., counsel’s
advice concerning a risk of harsher punishment on the charged crimes if the
defendant testified and the judge felt he perjured himself), when “[w]eighed
alongside” the advice regarding the incarceration and drug rehabilitation
evidence, did not “play[ ] a significant—let alone, outcome—determinative-role
in the defendant’s decision not to testify.”
Civitarese filed an ALOFAR in which he raised among other grounds for relief that he
received ineffective assistance of counsel: (1) based on his lawyer making an unfulfilled
promise in his opening statement; and (2) his lawyer gave him erroneous advice which he relied
on in deciding not to testify, thus depriving him of that right. On October 30, 2015, the SJC
denied his ALOFAR.
Standard of Review
The standard of review for habeas corpus petitions brought by state prisoners is set forth
in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
Under the AEDPA:
a federal court may grant habeas relief if the state court adjudication “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.” This means we look to the Supreme Court’s holdings, as opposed to dicta,
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at the time the state court rendered its decision, while employing the following
criteria.
An adjudication will be contrary to clearly established law if the state
court ‘applies a rule that contradicts the governing law set forth’ by the Supreme
Court 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.’”. On the other hand, a state court adjudication constitutes an
unreasonable application “if the state court identifies the correct governing legal
principle from the Supreme Court’s then-current decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” An “‘unreasonable
application of federal law is different from an incorrect application of federal
law,’” and a state court is afforded deference and latitude.
The second scenario justifying habeas relief is if the state court
adjudication led to “a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”
Though this means that a federal court will be taking a closer look at a state
court’s findings of fact, the fundamental principle of deference to those findings
still applies.
A ‘state court’s determination that a claim lacks merit precludes federal
habeas relief so long as 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)(internal citations and citations to quoted
authorities omitted)(emphasis and alterations in original). In administering these standards, the
state court’s factual findings are presumed to be correct, and they can be overcome only by clear
and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Discussion
Civitarese asserts that he received ineffective assistance of counsel in violation of the
Sixth Amendment as the result of his lawyer making an unfulfilled promise in his opening
statement and by giving him erroneous legal advice upon which he relied in making his decision
not to testify. Civitarese asserts that he is entitled to habeas relief because “the adjudication of
the claim resulted in a decision that was contrary to, or involved an unreasonable application of,
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clearly established federal law as determined by the Supreme Court of the United State; or
resulted a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Mem. Of L. In Supp. Of Pet. For Habeas
Corpus (Docket No. 25), at p. 6 (citing 28 U.S.C. §2254(d)).
Applying Strickland Under the AEDAP
The clearly established federal law relating to ineffective assistance of
counsel claims is based on Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (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. Of course, to establish constitutionally ineffective assistance of
counsel as a ground for federal habeas relief, the petitioner bears a doubly heavy
burden. On direct appeal, to demonstrate ineffective assistance under Strickland,
[the defendant] must show: (1) deficient performance by counsel (2) resulting in
prejudice. 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.
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.
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. In addition, AEDPA sets out
a separate and demanding standard applicable to review of a state court’s factual
findings. 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.’
An ineffective assistance of counsel claim … is a mixed question of law
and fact and should therefore be reviewed under the “unreasonable application”
clause of § 2254(d)(1).

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Shuman v. Spencer, 636 F.3d 24, 31 (1st Cir. 2011)(internal citations, citations to quoted cases
and quotation marks omitted).
Civitarese recognizes that he must prove that the MAC’s decision was an unreasonable
application of clearly established federal law determined by the Supreme Court and that the court
based its decision on an unreasonable determination of the facts. Civitarese first sets forth a
statement of facts citing to record evidence from the trial and evidentiary hearing. However, he
makes no attempt to dispute the findings of fact made by the MAC, which adopted substantially
all the findings of fact made by the trial judge or explain how his asserted facts differ therefrom.
Accordingly, I find that he has failed to rebut by clear and convincing evidence the presumption
that the state court’s findings of fact are correct. Civitarese argues that the state court’s ruling
violated AEDPA’s standards and therefore, must be overturned. However, he does not specify
how the state court’s application of Strickland was unreasonable with respect to his first ground
for relief relating to his lawyer’s mention of third-party culprits in his opening statement. He also
provides no specifics as to how the court’s findings regarding his second ground for relief, that
his waiver of his right to testify was not knowing and voluntary because of his lawyer’s
erroneous advice, was violative of Strickland or was a decision that was otherwise contrary to,
or involved an unreasonable application of, clearly established Supreme Court precedent, or was
based on an unreasonable determination of the facts in light of the evidence presented.
Nevertheless, I will do an independent review of the state court’s decision applying the
deferential standard required under the AEDPA.

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Whether Civitarese Has Established He Is Entitled To Habeas Relief
Civitarese is entitled to relief on his ineffective assistance of counsel claims only if he
establishes both that his lawyer provided deficient assistance and that there was prejudice as a
result. Under the standards required by the AEDPA, this is a daunting proposition.
To establish deficient performance, a person challenging a conviction must show
that counsel’s representation fell below an objective standard of reasonableness.
A court considering a claim of ineffective assistance must apply a strong
presumption that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance. The challenger’s burden is to show ‘that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.
With respect to prejudice, a challenger must demonstrate 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. It is not enough to show that
the errors had some conceivable effect on the outcome of the proceeding.
Counsel’s errors must be so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Surmounting Strickland's high bar is never an easy task … The question
is whether an attorney’s representation amounted to incompetence under
prevailing professional norms, not whether it deviated from best practices or most
common custom.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards created by
Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so… The Strickland standard is a general one, so the
range of reasonable applications is substantial. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). 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 Strickland’s deferential standard.
….

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In assessing prejudice under Strickland, the question is not whether a court
can be certain counsel's performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted
differently. Instead, Strickland asks whether it is ‘reasonably likely’ the result
would have been different. This does not require a showing that counsel’s actions
‘more likely than not altered the outcome,’ but the difference between
Strickland’s prejudice standard and a more-probable-than-not standard is slight
and matters ‘only in the rarest case.’ The likelihood of a different result must be
substantial, not just conceivable.
Harrington v. Richter, 562 U.S. 86, 105, 111-12, 131 S. Ct. 770 (2011))(internal citations,
citations to quoted cases and quotation marks omitted). Furthermore, under Strickland, “strategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.
Ground One--Making an Unfulfilled Promise in Opening Statement
Civitarese claims that his lawyer was ineffective for including in his opening statement
an allegation about a possible third-party culprit but then failing to present any such evidence to
the jury. However, as summarized above, the MAC applied the two-prong analysis mandated by
Strickland and reasonably rejected Civitarese’s claim of ineffective assistance of counsel as it
related to his trial lawyer’s opening statement. Additionally, based on the facts found by the trial
judge and adopted by the MAC it was not unreasonable for the MAC to conclude that Civitarese
received effective assistance of counsel. Therefore, Civitarese is not entitled to habeas relief on
this claim.
Ground Two—The Decision not to Testify
Civitarese asserts that he was denied his right to testify in his own defense because his
lawyer’s advice not to testify was constitutionally inadequate. More specifically, he asserts that
his lawyer told him that if he testified his prior conviction could be used to impeach him and that
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if the judge believed he lied on the stand, he might impose a harsher sentence. He contends that
this advice was erroneous because his prior conviction would not have been admissible and, in
fact, had been excluded by the trial judge and Massachusetts law prevented the trial judge form
giving him a harsher sentence based on his testimony. As summarized above, the MAC credited
the trial judge’s findings that his lawyer did not tell him that his conviction was admissible,
rather the told him that he would not make a good witness and for that reason, his responses
could open the door to the admission of evidence about his prior drug convictions and
rehabilitation. The MAC further found that Civitarese’s lawyer told him that the judge may
impose a harsher sentence if he testified. However, the MAC agreed with the trial judge that
this advice did not play a significant role in Civitarese’s decision not to testify. Given that
Civitarese did not refute the state court’s factual findings, this conclusion is unassailable on
habeas review. Ultimately, the MAC agreed with the trial judge’s conclusion that his lawyer’s
primary concern was Civitarese’s inability to stay on point and make a good impression. Based
on its reasonable findings, the MAC properly applied Strickland and affirmed the trial judge’s
finding that Civitarese’s waiver of the right to testify was knowing and voluntary and that is
lawyer’s advice did not render his representation inadequate. Because the state court’s decision
was not an unreasonable application of Strickland, Civitarese is not entitled to habeas relief on
this claim.
Conclusion
For the foregoing reasons, the Petition Under 28 U.S.C. § 2254 For Writ OF Habeas
Corpus By A Person In State Custody (Docket No. 1), is denied.

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Certificate of Appealability
The statute governing appeals of final orders in habeas corpus proceedings provides that
an appeal is not permitted “[u]nless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1). A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
“substantial showing,” a petitioner must demonstrate that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595 (2000) (internal quotation marks omitted). This is a low bar; a
claim can be considered “debatable” even if every reasonable jurist would agree that the
petitioner will not prevail. Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029 (2003). In
ruling on an application for a certificate of appealability, a district court must indicate which
specific issues satisfy the “substantial showing” standard. 28 U.S.C. § 2253(c)(3).
I grant the certificate of appealability with respect to Ground One of the Petition, i.e.,
Petitioner’s claim that he was denied effective assistance of counsel as the result of his lawyer
making an unfulfilled promise in his opening statement. I do so because although I have rejected
Petitioner’s legal arguments regarding this claim, he has made a substantial showing of the
denial of a constitutional right. Moreover, reasonable jurists could disagree with my conclusion. I
also find that or that the issues presented were adequate to deserve encouragement to proceed
further. Therefore, issuance of a certificate of appealability as to this claim is appropriate.
I deny the certificate of appealability with respect to Ground Two of the Petition i.e., Petitioner’s
claim that his refusal to testify was based on inadequate advice from his lawyer I do not find that
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reasonable jurists could debate whether this claim should be resolved in a different manner or
that there is any basis to proceed further with the issues he has presented.

So Ordered.

/s/ Timothy S. Hillman
TIMOTHY HILLMAN
DISTRICT JUDGE

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