YOUNG, District Judge.
Richard Rosenthal ("Rosenthal") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., ECF No. 1. He presents four grounds for relief: (1) he was deprived of due process by the motion judge's denial of his motion for a new trial without a competency hearing (Ground 1); (2) he was deprived of due process when the motion judge ruled that there was no lack of inquiry into the validity of Rosenthal's waiver of his right to testify (Ground 2); (3) he was deprived of due process by the ineffective assistance of trial counsel (Ground 3); and (4) he was deprived of due process by the ineffective assistance of the appellate counsel (Ground 4). Pet. App. Attach. Grounds, ECF No. 1-2.
On November 7, 1996, following a jury trial in Middlesex Superior Court (Graham, J.), Rosenthal was convicted of murder in the first the degree based on extreme atrocity or cruelty. Commonwealth v. Rosenthal, 432 Mass. 124, 124, 732 N.E.2d 278 (2000). Rosenthal did not dispute that he committed the murder, but claimed that he was not criminally responsible. Id. After his conviction, Rosenthal appealed, and the Supreme Judicial Court affirmed his conviction and denied relief under Massachusetts General Laws chapter 278, section 33E. Id. at 124, 131, 732 N.E.2d 278. On October 22, 2008, Rosenthal moved for a new trial, pursuant to Rule 30(b) of the Massachusetts Rules of Criminal Procedure. Rosenthal Mot. New Tr., Supplemental Answer, Vol. 3, Tab 12, SAA135, ECF No. 11. This motion was denied in a Superior Court Memorandum and Order (the "Memorandum and Order"),
On the night of August 28, 1995, Rosenthal killed his wife, Laura Rosenthal, by beating her with a rock, rupturing her eye and the surrounding bones, and destroying her face beyond recognition. Mem. & Order 2. He then sliced her torso, removed her organs, and impaled them on a stake, leaving them lying in the backyard of their home. Id. After murdering his wife, Rosenthal drove about aimlessly with his four-and-one-half month old baby in the back seat of his car. Id. After the police approached him, and before administering Miranda warnings, one of the officers offered to help Rosenthal, telling him that the sooner he told the police what was going on, the sooner he could go home. Id. Rosenthal then told the police, "I'm driving around to cool off. I had an argument. I had a fight. I did a terrible thing. I'm having marital problems." Id. After the police officers found bloody clothing in Rosenthal's car, they advised him of his Miranda rights. Id. Rosenthal later claimed that "he believed his wife was an `enemy alien vampire,' part of an invasion" and that the crime was committed in self-defense. Id.
On August 29, 1995, Rosenthal was arraigned in Framingham District Court. Id. at 2. On that date, Dr. Hoffnung examined him pursuant to Massachusetts General Laws chapter 123, section 15(a). Id. at 2-3. In her report, Dr. Hoffnung noted that Rosenthal understood he was charged with the crime of murder:
Id. at 3 n. 5. She concluded that "while appearing generally competent, there were some observations that raised doubt." Id. She reported that certain observations, including the fact that there was "no recognition or acknowledgment that his wife was dead or might be dead" raised the possibility of mental illness. Id. Dr. Hoffnung noted that Rosenthal referred to his wife as an unidentified or unspecified person, stressing, however, that due to the severity of her injuries, the body had to be identified through dental records and that process had not yet taken place. Id. She stated that, on one occasion, Rosenthal began to answer a question although his attorney had advised him not to answer and that, at the end, he asked her whether this was "a big case." Id. Dr. Hoffnung later testified at trial that, when she asked Rosenthal what alternatives he had to pleading not guilty, he replied "after thinking for a while ... self-defense, temporary insanity, or a thyroid storm." Id.
After Dr. Hoffnung reported her findings, the court issued an order committing Rosenthal to Bridgewater State Hospital ("Bridgewater") for an evaluation of competency to stand trial. Id. at 3. Pursuant to that order, Dr. Haycock attempted to evaluate Rosenthal. Id. at 3-4. In a letter to the Framingham District Court dated September 14, 1995, Dr. Haycock wrote that Rosenthal informed him "that his lawyers had instructed him not to speak with [Dr. Haycock] for the purposes of this evaluation." Id. at 4. Dr. Haycock released Rosenthal to the court without an opinion on his competency. Id.
In September 1995, at the request of the Middlesex County Jail, Dr. Schmidt evaluated Rosenthal pursuant to Massachusetts General Laws chapter 123, section 18(a). Id. In his report to the Framingham District Court dated September 15, 1995, Dr. Schmidt wrote that Rosenthal was
Id. at 5. Dr. Schmidt also reported that it was not clear to him that the defendant had a mental illness, but there was "certainly a strong possibility ... [therefore] further inpatient evaluation [was] warranted."
On September 28, 1995, a Middlesex County grand jury indicted Rosenthal for first-degree murder. Id. On the day after, Rosenthal was arraigned before a clerk magistrate, at which time the following exchange took place:
Id. at 5-6. In the affidavit supporting his Motion for New Trial, Rosenthal stated that his only concern was to make a statement to apologize for bringing on the air strikes in Bosnia. Id. at 6. On the same day, defense counsel, Norman Zalkind ("Zalkind"), contacted Dr. Whaley, who had been retained by the defense to evaluate whether Rosenthal was criminally responsible for the murder and who had already interviewed Rosenthal on September 16, 1995.
Id. at 6. Thereafter, additional petitions were filed to commit Rosenthal to Bridgewater, pursuant to Massachusetts General Laws chapter 123, section § 18(a). Id. at 6-7. On each occasion, the focus of the observation and examination was whether Rosenthal posed a danger to himself or others if held at the Middlesex County jail. Id. at 8. Rosenthal's competency to stand trial was not evaluated. Id. at 8.
On October 27, 1995, after receiving and meaningfully discussing the Lamb, warning, see Commonwealth v. Lamb, 365 Mass. 265, 311 N.E.2d 47 (1974), Rosenthal represented that he was becoming increasingly depressed and that he was having suicidal thoughts. Mem. & Order 7 n. 11. Dr. Schmidt reported that Rosenthal felt
Id.
On November 7, 1995, Dr. Haycock filed another report. Id. at 8. In this report, he stated that he explained to Rosenthal the Lamb warning and that the purpose of the evaluation was different from the earlier evaluation as to competency. Id. Dr. Haycock also reported that Rosenthal indicated understanding the scope of the examination and warning, and mentioned that defense counsel had advised him against
On December 18, 1995, Rosenthal filed notice that he would assert a defense of lack of criminal responsibility. Id. On February 21, 1996, the court allowed the Commonwealth's motion for an order requiring Rosenthal to submit to an examination by no more than two qualified psychiatrists. Id. The motion judge observed that, after this order was issued, Rosenthal's reports of delusional thinking and his odd behaviors increased. Id.
On April 17, 1996,
During this April commitment, Rosenthal was evaluated by Dr. DiCataldo, who filed a report on April 25, 1996, noting that Rosenthal grasped the purpose of the interview and the confidentiality limits. Id. at 9. According to Dr. DiCataldo, Rosenthal "was able to evoke [those limits] at various times during the interview." Id. at 10. He also refused to answer certain questions by noting that the information was not directly relevant to the question of commitment to a psychiatric facility, or that he had been advised by defense counsel not to answer questions that might impinge on his legal case. Id. When answering the questions, Rosenthal "did so after careful consideration and typically delivered a well-measured and succinct response devoid of spontaneity and elaboration." Id. His thinking was logical and goal-directed. Id. He displayed no sign of formal thought disorder. Id. He explained that he preferred the jail to Bridgewater due to the more engaging activities at the jail. Id. Dr. DiCataldo further stated that it was unclear whether Rosenthal suffered from a mental illness. Id. Rosenthal denied depression, hallucinations, or suicidal ideation while in jail. Id. When asked about the identity of his parents, he stated that "over the past six months they had acted strangely over various instances that have made me doubt their identity." Id. He refused to speculate as to what could have happened to his parents and "at no time seemed distressed, surprised or perplexed by his self-reported belief." Id. On the advice of his attorney, Rosenthal refused to provide information about his
Id. at 10-11.
On May 23, 1996, Dr. Schmidt requested that Rosenthal be committed pursuant to Massachusetts General Laws chapter 123, section 18(a), after Rosenthal reported that "he could hurt himself." Id. at 7 n. 12. On May 24, 1996, the Court denied the petition. Id. at 7. After this denial, Rosenthal administered cuts to himself that were "not superficial scratches."
During this commitment, Dr. Haycock also interviewed Rosenthal. Id. at 11. Dr. Haycock reviewed the records and spoke to Rosenthal's parents and defense counsel. Id. At this time, Rosenthal demonstrated his understanding of the Lamb warning. Id. Rosenthal described hearing noises that were not actually present (e.g., sounds of mopping the floors, playing cards), but Dr. Haycock noted that Rosenthal provided scant details about the noises. Id. On June 18, 1996, after visiting him, Rosenthal's parents reported that he appeared to accept them as his parents. Id. On that same date, Rosenthal told a clinician, "I know they are my parents, but I've had my doubts." Id. He attributed the cutting that led to his commitment to "confused" or "cloudy" thinking, but was unable or unwilling to elaborate and downplayed the lethality of the act. Id. At this time, Dr. Haycock "discern[ed] no signs or symptoms consistent with a suicidal preoccupation." Id. at 12.
On July 18, 1996, the trial court ordered Rosenthal to be committed after Dr. Schmidt's report stating that Rosenthal was "an acute suicide risk."
During the July 18 commitment, Dr. Haycock evaluated Rosenthal once more. Id. at 12. By then, Dr. Haycock reported that Rosenthal "demonstrated a ready operational understanding of the [Lamb] warning, in that he was vigilant about answering any question he thought might bear on his legal case." Id. At one point, Rosenthal told Dr. Haycock that "after this was all over, he would enjoy having an unencumbered discussion of some of the points they discussed, but that was not possible currently." Id. Rosenthal's mental status was essentially unchanged. Id. He appeared "able to evaluate connections between specific questions and possible points of interest to his legal case.... [T]here was no evidence of current major psychopathological symptomology" and
The trial took place in Middlesex Superior Court (Graham, J., presiding) October 15 to November 6, 1996. Id. at 13. Rosenthal was represented by Zalkind and attorney Inga Berstein. Id. Rosenthal did not dispute that he committed the murder, but asserted a defense of lack of criminal responsibility. Id. Dr. Strasburger and Dr. Whaley testified that Rosenthal suffered from a delusional disorder, in that he had believed a non-human alien was impersonating his wife and intended to kill him and that he therefore acted in self-defense. Id. Both doctors opined that Rosenthal was not criminally responsible. Id. The Commonwealth's expert, Dr. Fife, testified that the defendant had narcissistic personality traits and did not have a delusional disorder. Id. She also commented that he met three out of four of the diagnostic criteria for malingering. Id. Dr. Hoffnung also testified as to the statements Rosenthal made when he was evaluated on the day of his arraignment at the District Court. Id.
On October 30, 1996, after Rosenthal's experts had testified, his counsel asked for a bench conference at which the following transpired:
Id. at 14-15.
On November 7, 1996, the jury convicted Rosenthal of murder in the first degree based on extreme atrocity or cruelty, rejecting Rosenthal's claim that he lacked criminal responsibility. Id. at 15.
This Court may exercise jurisdiction over Rosenthal's petition for habeas corpus pursuant to 28 U.S.C. § 2254.
Pursuant to the Antiterrorism and Effective Death Penalty Act, a district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The habeas corpus petition should be granted only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" Id. § 2254(d)(1).
In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 405-06, 120 S.Ct. 1495. An unreasonable application of federal law occurs when "the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. The unreasonable application must be more than erroneous, it must be objectively unreasonable. Id. at 409, 120 S.Ct. 1495.
Rosenthal first argues that his bizarre behavior, including the observations of his growling and suicide attempt, was enough evidence to raise a question of possible doubt as to his competency to stand trial. Pet. App. Attach. Grounds 1-2. Accordingly, he asserts that the lack of inquiry into his competency impacted his ability to assist counsel and to comprehend the proceedings against him. Id.
The conviction of an accused person who is legally incompetent during trial violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The test for legal competency is whether "[the defendant] has sufficient present ability to consult with his lawyer
Drope, 420 U.S. at 180, 95 S.Ct. 896.
In the case at bar, the parties do not dispute the evidence relevant to Rosenthal's mental condition: his behavior during the arraignment and trial, his suicide attempt, and the Bridgewater reports. Thus, this Court must determine whether the motion judge gave proper weight to this evidence when she concluded that Rosenthal's competency was not in sufficient doubt to require further inquiry.
The motion judge started by reviewing Dr. Strasburger, Dr. Whaley, and Dr. Ebert's affidavits in support of Rosenthal's Motion for New Trial. Mem. & Order 20. She noted that, although Dr. Strasburger and Dr. Whaley testified on Rosenthal's behalf, they never raised his alleged lack of competence to stand trial. Id.
Indeed, according to the Memorandum and Order, it was only in a post-trial affidavit where Dr. Strasburger suggested, for the first time, that Rosenthal was not competent to stand trial due to the nature and severity of his mental illness. Id. Similarly, Dr. Ebert's post-trial affidavit also stated that, based on his review of Rosenthal's record, Rosenthal was suffering from a major mental illness before and after the trial and that there existed a serious question of competency. Id.
The motion judge found these two affidavits unpersuasive. She concluded that they did not provide any observations or statements made by Rosenthal demonstrating his lack of rational understanding of the roles of the various participants in the trial, or his inability to consult with counsel. Id. at 21; see Commonwealth v. Goodreau, 442 Mass. 341, 351, 813 N.E.2d 465 (2004) (holding that mental illness alone does not govern the determination of competency).
Additionally, the motion judge acknowledged that Zalkind raised the competency issue with Dr. Whaley on the day of Rosenthal's arraignment. Id. at 22. Nevertheless, she underlined Dr. Whaley's October 1995 report stating:
Id. at 22-23. According to the motion judge, Dr. Whaley's observations were consistent with those of Dr. Hoffnung, who observed:
Id. at 23. Furthermore, the motion judge recognized as particularly compelling the fact that Rosenthal's defense counsel, "who were attentive to the issue [of competence]," decided not to raise it:
Id. at 22, 24-25. Similarly, the motion judge credited and gave weight to the trial judge's own observations:
Id. at 25-26. Thus, the motion judge ruled:
Id. at 26 (citation omitted).
This determination is reasonable. The Bridgewater reports,
Furthermore, the motion judge's determination is not "contrary to ... clearly established Federal Law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The motion judge exhaustively reviewed the entire record under the guidelines established by Drope and Dusky and found no evidence sufficient to support a claim of incompetency to stand trial.
The "clearly established Federal law" for analyzing claims of ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
A court assessing such a challenge "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance" and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052.
Rosenthal claims that his trial counsel was constitutionally ineffective because he did not move for a competency exam. Pet. App. Attach. Grounds 4. According to Rosenthal, there was no possible strategic reason for not holding a competency exam. Id. at 5.
When the motion judge rejected Rosenthal's ineffective assistance of counsel claim, she stated:
Mem. & Order 26.
This decision is not unreasonable or contrary to "clearly established Federal law." 28 U.S.C. § 2254(d)(1). Rosenthal's counsel, who were aware of and attentive to the issue of competency, may have had tactical reasons not to hold, or even object to, a competency evaluation. In particular, during Rosenthal's trial, Zalkind explained that he would not have gone further with the trial had he thought that Rosenthal was incompetent. Mem. & Order at 15. As the Supreme Court has acknowledged, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
Rosenthal alleges that his defense counsel was ineffective when he prevented Rosenthal from testifying at trial. Pet. App. Attach. Grounds 3. He contends, in his affidavit, that he spent the recess in a holding cell and that his release from the cell was conditioned on his agreeing with his counsel's decision that he would not testify. Supplemental Answer, Vol. 2, Tab 10, SAA9-14. Rosenthal asserts that, if allowed to testify, he could have testified as to how sick he really was and what he was experiencing at the time of the incident. Pet. App. Attach. Grounds 3.
Further, Rosenthal argues that the trial judge should have conducted a hearing into his waiver of the right to testify. Mem. Supp. Pet'r's Opp'n Resp't's Mot. Dismiss ("Memo. Opp'n Mot. Dismiss") 41, ECF No. 21.
It is clear that a defendant has a fundamental constitutional right to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The right to testify may not be waived by counsel acting alone. United States v. Mullins, 315 F.3d 449, 454 (5th Cir.2002). Where counsel has failed to inform a defendant of his right to testify,
In the case at bar, the motion judge recognized Rosenthal's fundamental right to testify in his own defense. Mem. & Order at 27. The motion judge concluded, however, that there was no clear evidence showing that Rosenthal was ever denied that right.
In relevant part, the motion judge emphasized that Rosenthal said that he wanted to tell his side of the story to the trier of fact. Id. at 27. After Rosenthal expressed this desire, Zalkind, who had not planned to put Rosenthal on the stand, asked the trial judge for a recess to speak with Rosenthal. Id. At that time, Zalkind stated that he wanted time to make clear to Rosenthal that it would be against his advice as counsel for Rosenthal to testify. Id. After this recess, Zalkind told the trial judge that Rosenthal would not be testifying and that he did not want the court to inquire about Rosenthal's decision not to testify because it could undercut his insanity defense. Id. After discussing his right to testify with defense counsel during the recess, Rosenthal never again stated or in any way indicated that he wanted to testify. Id. Rosenthal does not dispute this statement. Instead, Rosenthal merely contends, in a "self-serving affidavit," that he was coerced into agreeing with Zalkind's decision. Id. at 28. The motion judge found Rosenthal's self-serving affidavit not credible and further noted that "[i]t is inconceivable that such a threat would be effective," because Rosenthal was in the custody of the court officers and did not tell the trial judge about the alleged threat. Id. Indeed, the motion judge observed:
Id.
In light of the above and without any other evidence supporting Rosenthal's coercion allegations, it was reasonable for the motion judge to conclude that Rosenthal "has consequently not met his burden of showing by a preponderance of the evidence that his waiver was invalid." Id. Indeed, in all likelihood, Rosenthal knew he could testify and knowingly waived his right after discussing it with defense counsel. See Commonwealth v. Waters, 399 Mass. 708, 717, 506 N.E.2d 859 (1987) (noting that the judge was warranted in finding that the defendant knew he had a right to testify where the defendant was "quite familiar with our system of criminal justice" and never indicated a desire to testify or any conflict with his counsel). Rosenthal has failed to rebut this presumptively correct finding of fact by the motion judge.
Massachusetts law does not require a trial judge to conduct a colloquy with a defendant to assure on the record that the defendant has knowingly and voluntarily relinquished the right to testify. Commonwealth v. Siciliano, 19 Mass.App.Ct. 918, 920, 471 N.Ed.2d 1359 (1984). As the First Circuit has stated, the question of "whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." See United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.1985). Zalkind explained that he did not want the trial court to question Rosenthal, because "you never know if there's a new trial, a hung jury, and this could be used against him on an insanity defense." Mem. & Order 14-15. Accordingly, the motion judge found that
Id. at 28-29 (citations omitted). The motion judge added:
Id. at 28.
Hence, even were this Court to consider that Zalkind's decision not to let Rosenthal testify was a poor tactical choice, the motion judge properly contended that Rosenthal cannot show that he was deprived of an otherwise available, substantial defense. See Saferian, 366 Mass. at 96, 315 N.E.2d 878. This determination is not contrary to the federal law clearly established by the Supreme Court. The motion judge applied the correct standard and decided that Rosenthal failed to show that Zalkind's conduct constituted unreasonable professional assistance and that he failed to show prejudice.
This decision is not unreasonable. Zalkind could have had a number of reasons for not letting Rosenthal testify. Further, the motion judge reasonably concluded
Rosenthal contends that he was denied the effective assistance of counsel because his trial attorney only moved to suppress his post-Miranda statements and not his pre-Miranda statements. Pet. App. Attach. Grounds 7.
At the October 1996 suppression hearing, Rosenthal's counsel limited Rosenthal's motion to suppress to post-Miranda statements. Mem. & Order 29. After a hearing on this motion, the court denied, in part, Rosenthal's motion to suppress post-Miranda statements, implicitly ruling that they were voluntary. Id. At a pre-trial hearing on the day the trial began, defense counsel reiterated his intent to make defendant's pre-trial Miranda statements "a trial issue." Id. According to Rosenthal, his trial counsel should have attempted to suppress all of his statements as being involuntarily made under duress and the influence of a serious mental illness. Pet. App. Attach. Grounds 6. Rosenthal claims he was prejudiced because the jury heard his statements that he was driving around to "cool off," had "had a fight," and "did a terrible thing." Id. at 7.
When the motion judge rejected Rosenthal's ineffective assistance of counsel claim for failing to file a motion to suppress, she stated:
Mem. & Order 29-31.
The motion judge's conclusion is not contrary to the federal law clearly established
Rosenthal asserts that he was denied his constitutional right to the effective assistance of appellate counsel, where his counsel failed to raise the issues of (1) Rosenthal's competency to stand trial; (2) his trial counsel's ineffective assistance on the competency issue; (3) his trial counsel's ineffective assistance when he prevented Rosenthal from testifying on his own behalf; and (4) his trial counsel's ineffective assistance when he introduced Rosenthal's pre-Miranda statements at trial. Mem. Opp'n Mot. Dismiss 46.
The Respondent challenges Rosenthal's Petition on two grounds. First, the Respondent contends that Rosenthal failed to exhaust his state remedies as required by 28 U.S.C. §§ 2254(b), (c).
A claim for habeas corpus relief is exhausted if the claim has been "fairly presented" to the state courts. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). To fairly present a claim the petitioner "must show that he tendered his federal claim `in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.'" Clements v. Maloney, 485 F.3d 158, 162 (1st Cir.2007) (internal quotation marks omitted).
The First Circuit held in Gagne v. Fair, 835 F.2d 6 (1st Cir.1987), that a habeas petitioner fairly presents a claim by:
Id. at 7. In Nadworny v. Fair, 872 F.2d 1093, 1099-1100 (1st Cir.1989), the First Circuit added a fifth possibility, namely, the assertion of a state law claim that is functionally identical to a federal claim. While the pleadings in the state and federal courts need not be identical, "the legal theory [articulated] in the state and federal courts must be the same." Id. at 1100. Indeed, "fair presentation requires that the constitutional analysis necessary to resolve the ultimate question posed in the habeas petition and in the state court proceedings, respectively, be substantially the same." Scarpa, 38 F.3d at 6.
Under the Sixth and Fourteenth Amendments, a person has a right to the effective assistance of counsel during a criminal trial. Williams, 529 U.S. at 390-91, 120 S.Ct. 1495; Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Supreme Court in Strickland did not determine the standard for evaluating claims concerning the effective assistance of appellate counsel. Nevertheless, it is well-settled that Strickland applies to claims against appellate counsel, in addition to trial counsel. See Smith v. Robbins, 528 U.S. 259, 288-89, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (holding that the proper standard for evaluating the petitioner's claim that appellate counsel was ineffective is the same standard enunciated in Strickland); see also Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (applying Strickland to a claim of attorney error on appeal).
In the case at bar, Rosenthal's allegation that appellate counsel was ineffective rests solely on appellate counsel's alleged deficient selection of appellate issues. Indeed, Rosenthal argues that his appellate counsel was ineffective because he failed to raise the following issues: (1) Rosenthal's competency to stand trial; (2) his trial counsel's ineffective assistance in dealing with this issue of competency; (3) his trial counsel's ineffective assistance in preventing him from testifying on its own behalf; and (4) his trial counsel's ineffective assistance in introducing his pre-Miranda statements at trial. Mem. Opp'n Mot. Dismiss 46.
When an ineffective assistance of appellate counsel claim rests on the deficient selection of appellate issues, the primary, if not single, focus of the court is the merit or lack thereof of the unraised issues. In the instant Petition, Rosenthal's ineffective assistance of appellate counsel claim rests on the same issues—and shares the same factual bases—that were before the motion judge when she rejected Rosenthal's claims concerning (1) his competency to
On this premise, the inquiry into whether the appellate counsel was ineffective is the same inquiry as that of the ineffective assistance of trial counsel. If the inquiries are the same, it follows that the denial of the latter necessarily leads to the denial of the former.
In Lanigan v. Maloney, 853 F.2d 40 (1st Cir.1988), in deciding whether the petitioner's claim was exhausted, the First Circuit held:
Id. at 44-45.
As in Lanigan, Rosenthal's ineffective assistance of appellate counsel claim, as argued, represents "a mere variation in the same claim rather than a different legal theory." 853 F.2d at 45.
Moreover, it is worth noting that Rosenthal's exhausted ineffective assistance of trial counsel claim was sufficient to alert the motion judge to Rosenthal's ineffective assistance of appellate counsel claim. Indeed, although Rosenthal's claim of ineffective assistance of appellate counsel was not included in the original Rule 30 petition, the motion judge still addressed it when she ruled:
Mem. & Order 31.
Thus, this Court concludes that Rosenthal's ineffective assistance of appellate counsel claim is exhausted. Lanigan, 853 F.2d at 45; see also Costa v. Hall, No. 00-12213, 2010 WL 5018159, at *5 (D.Mass. Dec. 2, 2010) (Wolf, C.J.).
This Court will now turn to the merits of Rosenthal's ineffective assistance of appellate counsel claim. First, this Court rejects Rosenthal's contention that his appellate counsel was ineffective for not raising the issues of Rosenthal's competency to stand trial, his right to testify, the voluntariness of his pre-Miranda statements, and the ineffectiveness of trial counsel claim. As this Court concluded, the manner in which the trial counsel and the trial judge dealt with these issues was constitutionally adequate. Moreover, this Court is satisfied that Rosenthal could not have been prejudiced by his appellate counsel's conduct as there were no meritorious grounds for appealing the alleged unraised issues. See Strickland, 466 U.S. at 669, 104 S.Ct. 2052; see also Hebshie, 754 F.Supp.2d at 111.
Rosenthal's Petition does not establish that he is in custody in violation of the Constitution or federal laws. Therefore, his Petition for habeas corpus [ECF No. 1] must be, and hereby is, DENIED.
SO ORDERED.
In opposing the Respondent's Motion to Dismiss, however, Rosenthal asserts, for the first time, that his defense counsel failed to inform him of his right to testify. Mem. Opp'n Mot. Dismiss 48. Nevertheless, the only facts that support this contention are those related to Rosenthal's alleged lack of competence. In fact, Rosenthal's allegation that he was not properly informed of his right to testify is exclusively dependent on his claim that he was incompetent to stand trial. As the motion judge found:
Mem. & Order 26.
Here, the record is devoid of any other evidence demonstrating that Rosenthal was not informed of his right to testify. To the contrary, Rosenthal continuously expressed that he wanted to tell his side of the story to the trier of fact.
Pet. App. Attach. Grounds 2.
Rosenthal's Motion for Reconsideration reinserted the ineffective assistance of appellate counsel claim, stating:
Mot. Reconsider Decision Def.'s Mot. New Trial 12, ECF No. 1-6.
