United States Court of Appeals
For the First Circuit
No. 20-1099
FRANCIS LANG,
Petitioner, Appellant,
v.
DOUGLAS DeMOURA, Superintendent, MCI Cedar Junction,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
Ruth Greenberg for appellant.
Maria Granik, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, and Thomas E. Bocian,
Assistant Attorney General, were on brief, for appellee.
September 30, 2021
KAYATTA, Circuit Judge. Francis Lang seeks a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his
Massachusetts conviction for murder in the first degree. Lang
contends that his trial counsel's failure to investigate Lang's
mental health history constituted ineffective assistance of
counsel. The Massachusetts Supreme Judicial Court denied relief,
rejecting both Lang's direct appeal and his appeal of the Superior
Court's denial of a post-trial motion for a new trial on grounds
that Lang had ineffective counsel and that his right to a public
trial was violated. Commonwealth v. Lang,
38 N.E.3d 262, 264
(Mass. 2015). Lang then presented an ineffective assistance of
counsel claim in a federal habeas petition, which the district
court denied. Lang v. Superintendent, MCI-Cedar Junction, No. 16-
11898-PBS,
2020 WL 58419 (D. Mass. Jan. 6, 2020). For the reasons
that follow, we affirm the district court's denial of Lang's
petition.
I.
A.
Over time, Lang has been diagnosed with a variety of
psychiatric disorders, including attention deficit hyperactivity,
learning disabilities, anxiety, opposition-defiant disorder,
bipolar disorder, and frontal network dysfunction. Medical
providers prescribed numerous medications for his bipolar
disorder, anxiety, and a seizure disorder. Neuropsychological
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testing shows Lang has impulse control in the "bottom one percent
of the bottom one percent of the population."
In early 2005, Lang was released from federal prison,
where he had been serving time for unlawful possession of
ammunition as a felon. He did not take his medications with him
from the prison, nor did he replace them. Twenty-two days later,
Lang entered a bar from which he had been banned several years
before. Recognizing Lang, the bartender refused to serve him.
Lang grew upset and began yelling. A waitress, her boyfriend, and
Richard Dever, a Suffolk County Deputy Sheriff, approached Lang.
He apologized to the waitress. Someone asked Lang to leave. As
Lang began to leave, he threw a beer can, which smashed a glass
object at the bar.
Although accounts varied as to what occurred next, there
was evidence that a scuffle ensued, involving at least Lang and
Dever in a small foyer at the entrance of the bar. One trial
witness testified that Dever threw punches at Lang. The fight
moved to the sidewalk in front of the bar, where Lang and Dever
exchanged punches. Lang took out a pocketknife and stabbed Dever
several times, asking "[h]ow do you like that, motherfucker?" and
"[h]ow's your motherfucking pretty face now?" Lang left the area,
but returned a few minutes later, yelling and looking for his
glasses. He then departed and did not return. Several hours
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later, the police found him hiding in a basement apartment in a
nearby home and arrested him.
Dever died as a result of multiple stab wounds, including
three stab wounds to the left side of his chest (one of which
perforated his heart) and one stab wound under his arm. He also
had three incised wounds on his face, one of which exposed bone.
State prosecutors charged Lang with murder in the first degree.
Lang did not testify at trial. He called one eyewitness
-- a patron at the bar -- who testified that, before the stabbing,
Lang was attacked by four people. Trial counsel argued that Lang
had acted in self-defense; in the alternative, trial counsel
asserted that Lang's inebriation rendered his killing of Dever
"nothing more than voluntary manslaughter." Although Lang
mentioned his psychiatric history to trial counsel, the
explanation of events Lang gave trial counsel focused on self-
defense. Trial counsel did not review Lang's psychiatric history,
consult with a mental health expert, or discuss with Lang the
possibility of a defense of lack of criminal responsibility.
Although trial counsel was familiar with mental health defenses
and had utilized those defenses previously on behalf of other
clients, he believed that such a defense "was rarely successful
and should be raised only as a last resort where no other viable
defenses exist." Lang, 38 N.E.3d at 270 (Hines, J., concurring).
In short, he did not investigate the possibility that such a
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defense might be supported because he regarded it as unhelpful or
worse, even if it could be supported. In particular, he regarded
any argument predicated on Lang's mental health as undercutting a
quite plausible defense of self-defense. Ultimately, however, the
claim of self-defense failed; Lang was convicted of first-degree
murder on a theory of extreme atrocity or cruelty. Lang, 2020 WL
58419, at *1.
B.
In a motion for a new trial, Lang argued that trial
counsel was ineffective in failing to investigate his mental health
history; consequently, he argues, Lang was deprived of (among other
things) the ability to make an informed decision regarding whether
to pursue a defense of lack of criminal responsibility, as well
as the potential use of that information to mitigate a verdict.
See Brief for Petitioner at 8, 11–13, Commonwealth v. Lang, 38
N.E.3d 262 (Mass. 2015) (SJC-10405), 2014 MA S. CT. BRIEFS LEXIS
1930. After an evidentiary hearing, the trial court denied Lang's
motion. Lang,
38 N.E.3d at 264. The trial court judge concluded
that trial counsel ably represented Lang, that insanity verdicts
are rare, and that "presenting a defense of lack of criminal
responsibility would have undermined or been inconsistent with [a
theory of] self-defense and would not have accomplished anything
material for the defendant."
Id. at 271–72 (Hines, J.,
concurring).
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Lang thereafter pursued and exhausted all avenues for
reviewing that decision and his conviction. With some partial
success in the form of a finding that trial counsel should have
investigated Lang's mental health, id. at 273 (Hines, J.,
concurring);
id. at 276 (Lenk, J., concurring), Lang failed to
obtain any relief because the Supreme Judicial Court (SJC) of
Massachusetts found that he would have refused to pursue a defense
based on a lack of criminal responsibility,
id. at 265;
id. at 277
(Lenk, J., concurring). The SJC did not explicitly address trial
counsel's failure to raise mental impairment as a mitigation
defense, but the justices did agree that, "after review of the
entire record," there was "no other basis for granting the
defendant relief."
Id. at 265.
C.
Lang next challenged his conviction through a federal
habeas action under 28 U.S.C. § 2254. The district court denied
Lang's petition for habeas relief. Lang,
2020 WL 58419, at *2.
"Assuming without deciding that [defense] counsel's failure to
investigate constitute[d] deficient performance," the district
court concluded it was reasonable for the SJC to decide that the
result of the trial would not have been different absent counsel's
error and that the SJC's decision passed muster under the
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deferential standard of review imposed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Id. at 1–3.
II.
In this appeal, Lang's claim begins with the assertion
that trial counsel provided constitutionally ineffective
assistance by failing to investigate Lang's mental capacities.
The standard for such federal claims was set by Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, a defendant
need prove both that counsel's performance was ineffective and
that the ineffective assistance caused prejudice.
Id. at 693
("[A]ctual ineffectiveness claims alleging a deficiency in
attorney performance are subject to a general requirement that the
defendant affirmatively prove prejudice."). In order to show
prejudice, a petitioner must "show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Porter v.
McCollum, 558 U.S. 30, 38–39 (2009) (per curiam) (quoting
Strickland,
466 U.S. at 694). This is a heavy burden. See
Strickland,
466 U.S. at 697; Knight v. Spencer,
447 F.3d 6, 15
(1st Cir. 2006) (noting that Strickland imposes "a 'highly
demanding' and 'heavy burden'" (quoting Williams v. Taylor,
529
U.S. 362, 394 (2000))). Although a petitioner "need not show 'that
counsel's deficient conduct more likely than not altered the
outcome' of [the] proceeding, he must establish 'a probability
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sufficient to undermine confidence in [the] outcome.'" Tevlin v.
Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (quoting Porter,
558 U.S.
at 44).
In this case, the SJC agreed with Lang that, at least
under Massachusetts law, trial counsel's failure even to consider
an investigation constituted ineffective assistance. Lang, 38
N.E.3d at 273 (Hines, J., concurring). Whether that failure also
constituted the degree of neglect sufficient to be deemed
ineffective assistance under federal law, we need not decide.
Rather, we turn our attention to the question of prejudice. Lang
asserts two theories of prejudice: (1) Had counsel duly
investigated Lang's mental health, counsel would have presented a
defense known in Massachusetts as a lack of criminal
responsibility, more customarily known as an insanity defense; and
(2) had counsel duly investigated Lang's mental health, counsel
would have used that history "to mitigate a verdict of cruelty and
atrocity to murder in the second degree, to mitigate murder to
manslaughter, or to offer alternative explanation of [Lang's]
flight other than consciousness of guilt." We address each theory
in turn.
A.
As to the first theory of prejudice, the SJC adjudicated
the issue on the merits and found it lacking. The three-justice
majority concluded that counsel's failure to investigate "did not
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create a substantial likelihood of a miscarriage of justice because
the defendant 'offered no evidence indicating that he would have
agreed to present a lack of criminal responsibility defense at the
time of the original trial, and has clearly asserted that he would
not present the defense at a new trial,'" which "'prevents him
from establishing prejudice as a result of counsel's failure to
investigate such a defense.'" Id. at 265 (quoting Lang,
38 N.E.3d
at 278 (Lenk, J., concurring)).1 AEDPA allows us to reject this
finding only if it was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States," or "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).
In denying Lang's petition for a new trial, both SJC
opinions credited record evidence that Lang was not interested in
pursuing a mental health defense at any point in time. Lang, 38
N.E.3d at 275, 275 n.19 (Hines, J., concurring);
id. at 278
(Lenk, J., concurring). This included statements Lang made after
trial that he was not interested in pursuing a mental-health-based
1 The other two justices concluded that "the failure to
investigate did not create a substantial likelihood of a
miscarriage of justice in the circumstances of this case because,
'even assuming the availability of a viable lack of criminal
responsibility defense, counsel's strategic choice to defend the
case solely on a self-defense theory was not manifestly
unreasonable.'" Lang, 38 N.E.3d at 265 (quoting Lang,
38 N.E.3d
at 274 (Hines, J., concurring)).
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defense that, if successful, would likely have sent him to
Bridgewater, a facility that Lang describes as "the state hospital
at which defendants who are found not guilty by reason of insanity
may be confined." The two-justice SJC concurrence additionally
stated that "the defendant expressed no wish or choice on the
subject of presenting or forgoing a lack of criminal responsibility
defense, and did not attempt to make any decision on the matter."
Lang, 38 N.E.3d at 275 (Hines, J., concurring).
Lang argues that he had no authority to instruct trial
counsel as to whether to assert a lack of criminal responsibility.
But under Massachusetts law, "the decision to present a lack of
criminal responsibility defense lies solely with [Lang]."
Commonwealth v. Lang, 38 N.E.3d at 278 (citing Commonwealth v.
Federici,
696 N.E.2d 111, 114–15 (Mass. 1998)). And relevant
federal precedent establishes that counsel may not put on a defense
of not guilty by reason of lack of criminal responsibility when a
defendant has chosen a defense of actual innocence.2 See McCoy
v. Louisiana,
138 S. Ct. 1500, 1507–12 (2018); see also Schriro v.
Landrigan,
550 U.S. 465, 478 (2007) ("[I]t was not objectively
unreasonable for th[e state] court to conclude that a defendant
who refused to allow the presentation of any mitigating evidence
2 In Massachusetts, a theory of self-defense is considered
an assertion of factual innocence. Commonwealth v. Williams, 119
N.E.3d 1171, 1177–78 (Mass. 2019).
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could not establish Strickland prejudice based on his counsel's
failure to investigate further possible mitigating evidence.").
In any event, we need only hold, under AEDPA, that the SJC would
hardly have behaved unreasonably in concluding that, given Lang's
position, there was no reasonable probability that his trial
counsel would have pursued such a defense against his wishes.
Lang further contends that it was error for the state
courts to have considered whether he would have raised such a
mental health defense at a new trial, because such an affirmation
of future trial strategy is not required under Strickland. But
the SJC did not mandate that Lang tell the court what he will do
in the future. Rather, the SJC permissibly and fairly inferred
from the various statements Lang made that he would not have
proceeded with a mental health defense, even if trial counsel had
investigated his mental health record. Such a finding runs
contrary to no clearly established federal law, involves no
unreasonable application of clearly established federal law, and
is not based on an unreasonable determination of the facts. See
28 U.S.C. § 2254(d). Accordingly, we must defer to it.
Id.
B.
That leaves Lang's second theory of prejudice -- that
had counsel investigated properly he would have used evidence of
Lang's mental health with the jury to seek some degree of
mitigation. Whether the SJC rejected this claim on the merits is
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less clear. The SJC made no mention of the claim. On the other
hand, it said that "after review of the entire record pursuant to
G.L. c.278, § 33E, the Justices agree unanimously that there is no
other basis for granting the defendant relief." Lang, 38 N.E.3d
at 265. Under AEDPA, a broad statement of this sort is ordinarily
enough. See Harrington v. Richter,
562 U.S. 86, 99 ("When a
federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.").
We need not resort in this instance to relying on AEDPA's
deferential review to adjudicate Lang's second theory of
prejudice. After going through the record, we are convinced that,
had counsel been fully informed about Lang's mental health, counsel
would have eschewed (and reasonably so) using that history in an
attempt to obtain mitigation.
Trial counsel explained that as a matter of strategy, he
would not have used the evidence of Lang's mental history, even
had he been aware of it. Lang suggests that we should not consider
counsel's explanation of what he would have done had he
investigated, because his failure to investigate alone proves
ineffective assistance of counsel. But because the failure to
investigate constitutes the alleged dereliction by counsel, we are
required to consider what would have happened but for that
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dereliction. And if it turns out that the investigation would not
have led to any information that counsel would have used at trial,
then his dereliction can hardly have caused prejudice.
Counsel -- and the trial court -- cogently explained why
the evidence would not likely have helped Lang and how it could
have distracted from or even undercut a decent claim of self-
defense. Commonwealth v. Lang, No. 05-10311 (Mass. Super. Apr. 20,
2012), aff'd 38 N.E.3d 262 (Mass. 2015). Massachusetts precedent,
established before Lang's trial, recognized that "[a]lthough a
mental health defense and self-defense would not necessarily have
been irreconcilable," in at least some cases, a mental health
defense "likely would have had an adverse impact on the claim of
self-defense." Commonwealth v. Walker,
820 N.E.2d 195, 206 (Mass.
2005). The Superior Court concluded that "[t]o contend . . . that
[Lang] was mentally ill and driven by uncontrollable impulses would
likely have been fatally inconsistent with the state[-]of[-]mind
requirements for self[-]defense," which include "that [the]
defendant would have had to actually and reasonably believe that
he was in imminent danger of serious bodily harm or death from
which he could only save himself by the use of deadly force."
Lang, No. 05-10311 (Mass. Super. Apr. 20, 2012), aff'd
38 N.E.3d
262 (Mass. 2015).
Lang suggests that trial counsel's claim that he would
not have used Lang's mental health history had he been aware of it
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is inconsistent with counsel's decision to submit at trial evidence
of alcohol consumption by Lang on the night in question. But
suggesting that Lang's perception and judgment were possibly
clouded by alcohol on that particular night is hardly the same as
suggesting that Lang is chronically lacking in impulse control.
Lang had a pretty strong argument for jurors to find he acted in
self-defense. Jurors who might accept that defense by finding
that he was pushed beyond the limits of reasonable restraint before
using force on the victim might instead decide, based on his mental
health history as manifest in criminal conduct and recent
imprisonment, that he was prone to strike violently without
reasonable provocation, and best not be put back on the streets.
In short, as defense counsel explained, the mental health history
could have both distracted from and undermined the principal
defense, such that there remained no reasonable probability that
counsel would try to use it.
Lang also argues that an understanding of his mental
health conditions would provide an alternative explanation for his
flight after the altercation -- one other than "consciousness of
guilt." But given that his flight was entirely consistent with
his defense that fear of harm reasonably caused him to strike in
self-defense, we see no reasonable probability that Lang's
alternative explanation for his flight would have changed the
result.
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For the foregoing reasons, we find that Lang has failed
to establish a reasonable probability that trial counsel would
have used the evidence of Lang's mental health had counsel been
aware of it. Hence, the failure to investigate caused Lang no
prejudice.
III.
The decision of the district court denying Lang's
petition for a writ of habeas corpus is affirmed.
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