Filed: Jun. 10, 2003
Latest Update: Feb. 22, 2020
Summary: assistance of trial counsel on petitioner's direct appeal.Petitioner's remaining claim, that the trial court, abused its discretion by denying petitioner's request for, the appointment of new counsel before the trial is also, procedurally defaulted. The Appeals Court agreed.appellate counsel claim.
Not for Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2080
NORMAN M. SILVIA,
Petitioner, Appellant,
v.
TIMOTHY HALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Lipez and Howard,
Circuit Judges.
Norman M. Silvia on Application for a Certificate of
Appealability pro se.
June 10, 2003
Per Curiam. Norman M. Silvia seeks a certificate of
appealability ("COA") to appeal from the denial of his petition
filed pursuant to 28 U.S.C. § 2254. Specifically, he seeks a COA
to appeal from the denial of habeas relief on the following
constitutional grounds: 1) ineffective assistance of trial counsel
for failure to pursue an insanity defense; 2) abuse of discretion
by the Massachusetts trial court, in violation of petitioner's
Sixth Amendment rights, for denying without a hearing his motion to
substitute court-appointed counsel; and 3) ineffective assistance
of appellate counsel for failure to assert a claim of ineffective
assistance of trial counsel on petitioner's direct appeal. We
address each claim separately, applying the standard for granting
a COA under 28 U.S.C. § 2253(c).
I. The COA Standard
Because the district court reached the merits of petitioner's
claims, a COA may issue only if the following standard is
satisfied:
The petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). However, because the
district court also denied the habeas petition on the alternative
ground of procedural default, a COA may not issue unless petitioner
can also make the following showings:
that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
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constitutional right and that jurists of reason would
find it debatable whether the district court was correct
in its procedural ruling.
Id. The Supreme Court has recently reiterated that, at the COA
stage, "the court of appeals should limit its examination to a
threshold inquiry into the underlying merit of [a petitioner's]
claims." Miller-El v. Cockrell, __ U.S. __,
123 S. Ct. 1029, 1034
(2003).
II. Ineffective Assistance of Trial Counsel Claim
Petitioner claimed that he received ineffective assistance of
counsel because his court-appointed trial attorney failed to
investigate and pursue "petitioner's only realistic defense:" that
because of a mental impairment he lacked criminal responsibility at
the time of the offense. Under Massachusetts law, "[l]ack of
criminal responsibility requires the existence of a mental disease
or defect, which causes the defendant to lack the substantial
capacity either to appreciate the wrongfulness of his or her acts,
or to conform his or her conduct to the requirements of the law."
Commonwealth v. Seabrooks, 425 Mass. 507, 515 (1997).
Applying the federal standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), the district court assessed the
merits of this claim as follows:
the record reveals that trial counsel's strategic
decision not to pursue a defense of diminished capacity
or mental impairment was an informed and reasonable
decision. Trial counsel sought and obtained funds to
hire a psychiatric expert to examine the petitioner.
That expert met with petitioner several times, reviewed
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petitioner's medical history, and interviewed other
witnesses. Dr. Meyer concluded that, while the
petitioner suffered from a mental disease, he did not
lack criminal responsibility.
As the United States Court of Appeals for the First
Circuit has said, "[e]ffectiveness does not require that
counsel jump through every conceivable hoop or engage in
futile exercises." United States v. Pellerito, 878 F.2d
1535, 1540 (1st Cir. 1985). Petitioner's trial counsel
did, in fact, put on a defense, essentially arguing that
the petitioner had gone to the victim's house intent on
committing suicide. In the circumstances of this case,
this was not ineffective assistance of counsel.
We conclude that reasonable jurists could not find the
district court's assessment of this ineffective assistance of
counsel claim debatable or wrong. Nothing in the record, including
the affidavits of witnesses (the victim and petitioner's mother)
whom petitioner faults his trial counsel for failing to interview,
supports a finding that petitioner was not criminally responsible
at the time of the offense. Petitioner suggests that counsel was
deficient in not obtaining his medical records from psychiatric
counseling and treatment he had undergone in the years leading up
to the offense. However, the record reveals that those medical
records were among the sources on which defendant's expert relied
as did the psychologist from Bridgewater State Hospital who
prepared the Aid to Sentencing Evaluation. Both reports reached
conclusions about petitioner's psychological health which were
incompatible with a finding that he lacked criminal responsibility.
Given the dearth of evidence that petitioner had summoned to
support such a defense, reasonable jurists could not debate the
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district court's assessment that trial counsel's failure to pursue
that defense did not constitute ineffective assistance of counsel.
III. Sixth Amendment Claim for Failure to Grant Motion for
Continuance and Appointment of New Trial Counsel
Petitioner claimed that the trial court abused its discretion,
in violation of petitioner's Sixth Amendment rights, by "fail[ing]
to make adequate inquiry into petitioner's complaint that conflict
between petitioner and his counsel was so great that it resulted in
total lack of communication preventing adequate defense." § 2254
Petition. In denying § 2254 relief on procedural default grounds,
the district court ruled as follows:
Petitioner's remaining claim, that the trial court
abused its discretion by denying petitioner's request for
the appointment of new counsel before the trial is also
procedurally defaulted. The Appeals Court determined
that petitioner had waived this claim, and reviewed it
only to determine whether the denial of the motion for
new counsel created a substantial risk of miscarriage of
justice.
Petitioner has made no showing that would excuse
this default. Although this court could review the
defaulted claim if refusing to do so would result in a
miscarriage of justice, that risk is not present in this
case. The United States Court of Appeals for the First
Circuit has called this an exception "seldom to be used,
and explicitly tied to a showing of actual innocence."
Burks v. DuBois, 55 F.3d 712, 717 (1st Cir. 1995). In
this case, petitioner makes no claim of actual innocence,
arguing instead that his attorney should have put forth
a diminished capacity defense. This is not the type of
claim that risks a miscarriage of justice, and the claim
is therefore barred from collateral review by this court.
Reasonable jurists would not find it debatable whether the
district court was correct in this procedural ruling. "A finding
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by a state court that a defendant procedurally defaulted a claim
bars federal habeas corpus relief on that claim unless that
defendant as a petitioner shows either cause for the default and
prejudice from the claimed violation of federal law, or that a
fundamental miscarriage of justice would result if the claim is not
considered. Coleman v. Thompson, 501 U.S. 722, 750 (1991)." Gunter
v. Maloney,
291 F.3d 74, 78 (1st Cir. 2002).
The record reveals that Silvia first raised this claim in his
motion for a new trial. The superior court held that the claim
"could have been raised on appeal but [was] not" and, therefore,
was waived. The Appeals Court agreed. Therefore, federal habeas
corpus relief was barred unless Silvia could show cause and
prejudice. However, in none of his habeas filings did Silvia even
allege cause to excuse the procedural default of this claim or
prejudice from the claimed Sixth Amendment violation. Nor does the
record provide support for such showings. Reasonable jurists could
not debate the correctness of the district court's ruling that
habeas relief was precluded by the procedural default of this claim
in state court.
IV. Ineffective Assistance of Appellate Counsel Claim
In this final habeas claim, petitioner faulted his newly-
appointed appellate counsel for failure to raise an ineffective
assistance of trial counsel claim on direct appeal and for advising
him that such a claim should be raised, if at all, in a motion for
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new trial following the appeal. In his COA request to this court
petitioner maintains that the ineffective assistance of trial
counsel claim that he wanted raised was the claim that he and his
trial attorney "were embroiled in a[n] irreconcilable conflict
throughout the entire proceedings." However, the record supports
the district court's assumption that the claim he asked his
attorney to raise on appeal was an ineffective assistance claim
based on failure to pursue the defense that petitioner was not
criminally responsible.
Regardless of which of these ineffective assistance claims
petitioner wanted pursued, his attorney's advice that such a claim
should properly be raised, if at all, in a motion for new trial was
consistent with state law. Under Massachusetts law, "[a] claim of
ineffective assistance may be resolved on direct appeal of the
defendant's conviction when the factual basis of the claim appears
indisputably on the trial record." Commonwealth v. Adamides, 37
Mass.App.Ct. 339, 344 (1994)(emphasis added). Here, however,
appellate counsel correctly concluded that the record before the
Appeals Court contained nothing that would support petitioner's
ineffective assistance of counsel claim. His advice that a viable
ineffective assistance claim would have to be based upon new facts
"introduced by way of affidavits accompanying a new trial motion"
was consistent with applicable state law. See Commonwealth v.
Burgess, 434 Mass. 307, 317 (2001). Reasonable jurists could not
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debate the district court's assessment that petitioner was not
entitled to habeas relief on his ineffective assistance of
appellate counsel claim.
Petitioner's request for a COA is denied and the appeal is
terminated.
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