United States Court of Appeals For the First Circuit
No. 23-1023
GERARDO E. MARTINEZ,
Petitioner, Appellant,
v.
WAYNE T. SALISBURY, JR., Interim Director, Rhode Island Department of Corrections,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Rikelman, Howard, and Kayatta, Circuit Judges.
Camille A. McKenna, Assistant Public Defender, Appellate Division, Rhode Island Public Defender, for appellant. Christopher R. Bush, Assistant Attorney General, with whom Peter F. Neronha, Attorney General of Rhode Island, was on brief, for appellee.
November 4, 2025 HOWARD, Circuit Judge. This appeal from the dismissal
of a petition for a writ of habeas corpus challenges Gerardo
Martinez's first-degree murder conviction in Rhode Island state
court for the 2005 killing of Lindsay Ann Burke. The district
court dismissed Martinez's petition but granted a certificate of
appealability. See Martinez v. Coyne-Fague, 646 F. Supp. 3d 345,
368 (D.R.I. 2022).
Martinez maintains that his trial counsel was
constitutionally ineffective under the framework established in
Strickland v. Washington, 466 U.S. 668 (1984). The issue that we
confront is whether the Rhode Island court's denial of Martinez's
request for state post-conviction relief constituted an
"unreasonable application" of Strickland within the meaning of 28
U.S.C. § 2254(d). Because we conclude that it did not, we affirm.
I.
We presume the post-conviction court's factual findings
to be correct when we consider a state conviction on habeas review.
See Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014). As such,
the facts below are drawn from the Rhode Island Superior Court's
post-conviction decision, Martinez v. State, No. KM-2013-0095,
2018 WL 1359478 (R.I. Super. Ct. Mar. 7, 2018), which incorporated
the facts as described in Martinez's direct appeal to the Rhode
Island Supreme Court, State v. Martinez, 59 A.3d 73 (R.I. 2013).
- 2 - Additional facts from the record are described later in our
analysis.
A.
Martinez killed Lindsay in September 2005 after they had
dated for approximately two years. The evidence at trial
established that the relationship had been a troubled one, with
Lindsay's supervisor at work testifying about how Lindsay had
described to her Martinez's verbal and physical abuse.
On the day of the killing, Martinez and Lindsay had an
altercation that began in his living room before escalating in the
bathroom. Martinez first punched Lindsay in the nose, an injury
which she apparently moved to the bathroom to treat, as evidenced
by bloody tissues found in the wastebasket there. Martinez
followed her and eventually inflicted the fatal blows with a knife.
An autopsy revealed that Lindsay had suffered extensive wounds,
including traumatic injuries on her hands, contusions on her skull,
and incisions on her neck, chest, and leg. A photo of her new
love interest was found in the bathroom sink. Martinez filmed a
confession and then drove from his home in Rhode Island to New
Hampshire, where he was arrested in Lindsay's car with a suicide
note in his possession.
Martinez was represented during the state's prosecution
by Attorney Mark Smith. When he first met with Martinez, Attorney
Smith had him sign a medical release form. After obtaining
- 3 - Martinez's medical records, Attorney Smith shared them with Dr.
Ronald Stewart, an experienced clinical and forensic psychiatrist.
Dr. Stewart conducted an interview with Martinez and subsequently
diagnosed him with post-traumatic stress disorder (PTSD) resulting
from abuse that he had suffered as a child and his Navy combat
experience in Kosovo, among other factors. This diagnosis meant,
according to Dr. Stewart, that criminal intent could not be
ascribed to Martinez at the time of the killing.
At trial, Smith elected not to call Dr. Stewart as a
witness. Instead, the defense took the position that Martinez
should be convicted of second-degree murder instead of
first-degree murder because the killing had lacked premeditation.
Under Rhode Island law, "[t]he duration of the
defendant's intent to kill . . . determines, in part, whether the
murder falls into the category of first or second degree."
Martinez, 59 A.3d at 89 (citing State v. Ros, 973 A.2d 1148, 1161
(R.I. 2009)); see also R.I. Gen. Laws § 11-23-1 (murder statute).
The state must prove beyond a reasonable doubt that "a premeditated
intent to kill of more than a momentary duration [existed] in the
mind of the accused" in order to establish first-degree murder.
Martinez, 59 A.3d at 88 (alteration in original) (quoting State v.
Texieira, 944 A.2d 132, 142 (R.I. 2008)); see also State v.
Rodriguez, 822 A.2d 894, 909 (R.I. 2003) ("[F]or first-degree
murder to exist, premeditation must have existed for more than
- 4 - just a mere moment."). "Conversely, the offense of second-degree
murder, which does not require any premeditation, 'involves a
fleeting intent that is contemporaneous with the murder.'"
Martinez, 59 A.3d at 88 (quoting State v. Gillespie, 960 A.2d 969,
977 (R.I. 2008)).
Defense counsel seized on the photo of Lindsay's new
love interest to argue at trial that Martinez had not committed
first-degree murder. Instead, he told the jury, Martinez was a
very jealous man and had "snapped" when he found the photo in her
purse. The stakes for Martinez were high. First-degree murder in
Rhode Island is punishable by life in prison. R.I. Gen. Laws
§ 11-23-2. And if the jury finds certain aggravating factors, the
trial judge has discretion to sentence the defendant to life
without parole. Id. § 12-19.2-1. Second-degree murder, on the
other hand, is punishable by ten years to life in prison and cannot
result in a sentence of life without parole. See id. § 11-23-2.
Smith's strategy was unsuccessful. Martinez was
convicted of first-degree murder and received a punishment of life
without parole after a sentencing hearing in which Smith did elicit
Dr. Stewart's testimony. The Rhode Island Supreme Court affirmed
the conviction and sentence on direct appeal. See Martinez, 59
A.3d at 76, 95.
- 5 - B.
In 2013, Martinez sought post-conviction relief in state
court, asserting ineffective assistance of counsel. He focused
his challenge on Smith's decision to rely on a "no-premeditation"
defense, instead of calling Dr. Stewart as a trial witness in
support of a diminished capacity defense. The latter defense, if
successful, would have reduced Martinez's culpability to voluntary
manslaughter and resulted in a punishment of no more than thirty
years in prison. See State v. LaCroix, 911 A.2d 674, 679 (R.I.
2006) (providing an overview of the diminished capacity defense);
State v. Hockenhull, 525 A.2d 926, 930 (R.I. 1987) ("A defendant's
diminished mental capacity reduces the crime of murder to the
lesser included crime of voluntary manslaughter."); R.I. Gen. Laws
§ 11-23-3 (establishing a maximum imprisonment of thirty years for
manslaughter). The Rhode Island Superior Court ("the state
post-conviction court") held a three-day evidentiary hearing on
Martinez's claim. Smith testified at the hearing, as did both a
psychotherapist who had treated Martinez in the months before the
murder, and a psychologist who had completed a forensic evaluation
of Martinez prior to the hearing and had reached a similar
conclusion to that of Dr. Stewart.
The state post-conviction court denied Martinez's
petition in 2018. See Martinez, 2018 WL 1359478, at *13. Applying
the Strickland framework described below, the court held that
- 6 - Attorney Smith's performance was not constitutionally deficient
(and consequently the court did not reach the issue of prejudice).
Id. The Rhode Island Supreme Court denied Martinez's petition for
writ of certiorari in 2020. His federal habeas petition followed.
II.
When a state prisoner seeks habeas relief under 28 U.S.C.
§ 2254 based on a claim of ineffective assistance of counsel, the
petitioner can prevail only if he satisfies the requirements of
both the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) and the Supreme Court's ineffective assistance of counsel
framework as established in Strickland. We start with a
description of these standards and how they intersect, below.
As amended by AEDPA, the relevant provision of language
of 28 U.S.C. § 2254, which governs this appeal,1 dictates that:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
1 The "unreasonable application" clause of 28 U.S.C. § 2254(d)(1) quoted here applies to ineffective assistance of counsel claims. See Yeboah-Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 2009). Martinez argued as an alternative below that the state post-conviction court's decision was "based on an unreasonable determination of the facts in light of the evidence presented" in violation of § 2254(d)(2). But the district court rejected that contention, see Martinez, 646 F. Supp. 3d at 365–66, and Martinez does not renew it on appeal.
- 7 - (1) resulted in a decision that . . . involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States[.]
The salient term is "unreasonable application." An unreasonable
application of clearly established federal law as determined by
the Supreme Court occurs when "the state court identifies the
correct governing legal rule . . . but unreasonably applies it to
the facts of the particular state prisoner's case." Bebo v.
Medeiros, 906 F.3d 129, 134 (1st Cir. 2018) (alteration in
original) (quoting White v. Woodall, 572 U.S. 415, 425 (2014)).
An "unreasonable application" requires more than mere error: "Even
where a state court has misapplied federal law, we will only grant
relief to the petitioner 'in cases in which all fairminded jurists
would agree that a final state court decision is at odds with the
Supreme Court's existing precedents.'" Strickland v. Goguen, 3
F.4th 45, 53 (1st Cir. 2021) (quoting Dorisca v. Marchilli, 941
F.3d 12, 17 (1st Cir. 2019)). Furthermore, "[t]he more general
the rule, the more leeway [state] courts have in reaching outcomes
in case-by-case determinations." Dorisca, 941 F.3d at 17 (first
alteration in original) (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).
Under AEDPA, therefore, our task is straightforward.
"[W]here, as here, 'the last state court to decide a prisoner's
federal claim explains its decision on the merits in a reasoned
- 8 - opinion,' [we] must examine the 'specific reasons given by the
state court and defer[] to those reasons if they are reasonable.'"
Webster v. Gray, 39 F.4th 27, 33–34 (1st Cir. 2022) (third
alteration in original) (quoting Wilson v. Sellers, 584 U.S. 122,
125 (2018)).
B.
The ineffective assistance of counsel framework that the
state post-conviction court was tasked with applying flows from
the Sixth Amendment's guarantee of the right to counsel and was
established by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984). A successful Strickland claim requires a showing
that "defense counsel's performance was (1) constitutionally
deficient and (2) that this deficiency prejudiced [the
defendant's] case." Field v. Hallett, 37 F.4th 8, 17 (1st Cir.
2022) (citing Strickland, 466 U.S. at 687)).
With respect to the first prong, an ineffective
assistance of counsel claimant must show that "counsel's
performance was objectively unreasonable 'under prevailing
professional norms.'" United States v. Mercedes-De La Cruz, 787
F.3d 61, 67 (1st Cir. 2015) (quoting Strickland, 466 U.S. at 688).
Courts will evaluate the attorney's conduct "from counsel's
perspective at the time," with "a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance." Rivera v. Thompson, 879 F.3d 7, 12 (1st Cir. 2018)
- 9 - (quoting Strickland, 466 U.S. at 689). We are also cautioned that
"every effort [must] be made to eliminate the distorting effects
of hindsight." Strickland, 466 U.S. at 689.
Even if a claimant establishes that counsel's
performance was constitutionally deficient, he must also
demonstrate "that the decision reached [by the jury at trial] would
reasonably likely have been different absent the errors." Id. at
696. This standard for prejudice is "not quite a
'more-probable-than-not standard,' [but] the difference 'is slight
and matters only in the rarest case.'" Collins v. Roden, 749 F.3d
29, 32 (1st Cir. 2014) (quoting Harrington v. Richter, 562 U.S.
86, 112 (2011)).
C.
Where, as here, AEDPA and Strickland intersect, the
question for us is "not whether counsel's actions were reasonable."
Field, 37 F.4th at 18 (quoting Harrington, 562 U.S. at 105). The
question is whether "all fairminded jurists would agree that [the]
final state court decision is at odds with [Strickland]." Bebo,
906 F.3d at 134 (citing Harrington, 562 U.S. at 102). The Supreme
Court has described this as a "doubly deferential standard of
review that gives both the state court and the defense attorney
the benefit of the doubt." Burt v. Titlow, 571 U.S. 12, 15 (2013)
(internal quotation marks omitted).
- 10 - We review de novo the district court's determination
that Martinez failed to clear these hurdles. Scott v. Gelb, 810
F.3d 94, 98 (1st Cir. 2016) (citing Sanchez v. Roden, 753 F.3d
279, 293 (1st Cir. 2014)).
III.
As described above, the AEDPA analysis begins by
considering the state post-conviction court's decision, Martinez,
2018 WL 1359478.2 Here, the state post-conviction court provided
a detailed summary of the proceedings in front of it, focusing on
the three-day hearing that it held, before turning to its
Strickland analysis. Id. at *1–10. After examining Attorney
Smith's reasoning, the state post-conviction court concluded that
his decision to advance a no-premeditation defense, while saving
Dr. Stewart's testimony for sentencing, was a strategic choice
that was not constitutionally deficient. Id. at *9-13. The court
therefore did not reach the issue of prejudice. Id. at *13. We
explain below why we do not think that "all fairminded jurists
would agree that [the state post-conviction court's] decision is
2 The Rhode Island Supreme Court denied Martinez's cert petition during his state post-conviction proceedings, so the Rhode Island Superior Court's decision is the relevant one for our purposes. See Wilson, 584 U.S. at 125; cf. Dorisca, 941 F.3d at 14 ("Where the highest state court -- in this case, the Massachusetts Supreme Judicial Court -- has denied review, we are to 'look through to the last reasoned decision' issued by the Massachusetts Appeals Court." (quoting King v. MacEachern, 665 F.3d 247, 252 (1st Cir. 2011))).
- 11 - at odds with [Strickland]." Bebo, 906 F.3d at 134 (citing
Harrington, 562 U.S. at 102).
The Supreme Court stated in Strickland that "strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable," 466 U.S. at
690, and Martinez does not argue that counsel was deficient in his
investigation. Martinez acknowledges, as he must, that Attorney
Smith retained Dr. Stewart to examine him, provided Dr. Stewart
with his medical records, and consulted Dr. Stewart after his
examination. Instead, Martinez attacks the state post-conviction
court's characterization of Smith's decisions as "strategic" and
reasonable under the circumstances. He does so by arguing that
the no-premeditation defense "amounted to no defense at all because
it was legally and factually invalid."
Martinez is at least correct that Smith's
no-premeditation defense faced an uphill climb. The undisputed
evidence at trial showed that the killing was not impulsive and
instantaneous. While Martinez and the state quarrel in their
briefing over the relationship between a physical struggle and
premeditation under Rhode Island law (a question with which we are
not required to grapple), the cases cited by Martinez demonstrate
that fact patterns bearing similarities to the one in this case
have often led to first-degree murder convictions in the state.
- 12 - See State v. Gumkowski, 223 A.3d 321, 323-24, 331-32 (R.I. 2020)
(slashed throat); State v. Tassone, 749 A.2d 1112, 1114-15, 1119-21
(R.I. 2000) (blows from a shovel); State v. Campbell, 691 A.2d
564, 565, 572 (R.I. 1997) (stab and blunt-trauma wounds).
State v. Campbell is an exemplar. There, the Rhode
Island Supreme Court left undisturbed the decision of a trial judge
to decline to instruct the jury on second-degree murder in a case
where there were no eyewitnesses to the killing but the victim had
sustained fifteen to twenty lacerations, bruises, or contusions,
and also bore signs of defensive wounds. 691 A.2d at 572 ("Our
review of [the medical] testimony has led us to the ineluctable
conclusion that [the victim] was viciously murdered in a manner
that demonstrated more than momentary intent."). Campbell thus
supports that it was going to be difficult for defense counsel to
convince the jury that the wounds that Lindsay suffered were the
result of Martinez acting with an intent to kill that -- in the
words of the jury instructions -- "existed only fleetingly or
momentarily before he committed the fatal act."
Nevertheless, the trial judge here did provide that
second-degree murder jury instruction, and that fact is the point
at which Martinez's argument hits a snag from which it ultimately
cannot recover. That is because the instruction directly
contradicts his claim that the no-premeditation defense was not
"legally viable." There was no legal obstacle standing in the way
- 13 - of the jury following the instruction and returning a verdict of
second-degree murder. And had the jury done so, the state would
have been left with no further opportunity to secure a first-degree
murder conviction.
Martinez does not press a viable response to the jury
instruction having been provided. He argues that the instruction
is of no moment because the state did not object to it, and thus
there was no reason for the trial judge not to give it. But this
argument fails to contend with the fact that the proposition that
"instructions should not be given on lesser degrees of murder or
manslaughter unless there is evidence in the case to support such
a finding" is "well settled" according to the Rhode Island Supreme
Court. State v. Parkhurst, 706 A.2d 412, 423 (R.I. 1998) (first
quoting State v. Tarvis, 465 A.2d 164, 171 (R.I. 1983)); see also
Campbell, 691 A.2d at 572 (rejecting defendant's challenge to the
trial judge's refusal to instruct on second-degree murder); Page
v. State, 995 A.2d 934, 940 (R.I. 2010) (quoting a state
post-conviction judge as saying, "There is no way on God's green
earth that I could conceive of ever inviting, at least in
[petitioner's] case, anything but a first degree murder
instruction to the jury based on the facts that would have been
produced.").
Martinez also does not consider the possibility that the
state did not object to the second-degree murder instruction
- 14 - because it believed that such an objection would be futile. To
that end, while hearing a motion by Attorney Smith for a new trial,
the trial judge stated that the jury could "absolutely" have come
back with a verdict of second-degree murder. The trial judge also
commended Smith for his excellence in defending Martinez.
Martinez, 2018 WL 1359478, at *4. Such statements are hard to
ignore, given that we are required to "eliminate the distorting
effects of hindsight . . . and to evaluate [Attorney Smith's]
conduct from [his] perspective at the time." Strickland, 466 U.S.
at 689.
Martinez additionally attacks the state post-conviction
court for not faulting Smith's decision to save Dr. Stewart's
testimony for sentencing, but we cannot say that this was an
unreasonable application of Strickland's deferential first prong.
Indeed, the state post-conviction court found several plausible
reasons why Smith could have made this decision.
First, the state post-conviction court found that Smith
was worried that Dr. Stewart's testimony would open the door to
damaging evidence about Martinez's past abusive behavior, not only
towards Lindsay, but also towards other women. Martinez, 2018 WL
1359478, at *6–7. Smith knew that Lindsay's mother, supervisor at
work, and new love interest were all prepared to testify about the
abuse that Martinez inflicted on Lindsay on days other than the
- 15 - one on which he killed her. See Martinez, 59 A.3d at 85-87, 86
n.15. He also knew that the state could produce testimony from
both Martinez's ex-wife and another ex-girlfriend that Martinez
had abused them during their relationships. See Martinez, 2018 WL
1359478, at *6. While some of this evidence eventually was offered
at trial, much of it was not, including the testimony of Lindsay's
mother as well as that of Martinez's ex-wife and ex-girlfriend.
See Martinez, 58 A.3d at 86 & n.15. Had counsel offered Dr.
Stewart's testimony to the jury, the state likely would have been
able to impeach him by inquiring about these previously off-limit
topics. See Martinez, 2018 WL 1359478, at *6-7. Saving Dr.
Stewart for sentencing presented Smith with no such concerns.
Second, the state post-conviction court found that Smith
believed that advancing a diminished capacity defense based on Dr.
Stewart's testimony would be futile given the overwhelming
evidence against Martinez. Id. at *12. There was never any
question in this case that Martinez killed Lindsay. In addition
to the graphic photos taken at the crime scene, Smith knew that
the jury would view Martinez's videotaped statement (where he
appeared "calm, cool, and collected" shortly after the killing)
and his suicide note, each of which contained a confession. Id.
at *5. We cannot say that the state post-conviction court
unreasonably erred when it credited Smith's belief that a
jury -- when faced with such disturbing evidence -- would look
- 16 - with disfavor on an attempt to attribute Martinez's actions to
PTSD. Indeed, the trial judge lent support to the validity of
Smith's concern when, at sentencing, the judge characterized
Martinez's mitigation efforts -- including Dr. Stewart's
testimony -- as "shallow attempt[s] to blame others" for the "vile,
heinous[,] and completely unnecessary[,] unjustified slaying." Id.
at *1 (second and third alterations in original).
Third, the state post-conviction court found that Smith
decided that Dr. Stewart's testimony would be more likely to
convince the trial judge to spare Martinez from life without parole
if the judge heard it for the first time at sentencing.3 Id. at
*7. Such a decision by counsel would be more problematic had he
not mounted any defense at trial. But, as discussed above, Smith
in fact put on a no-premeditation defense that the trial judge
3 We note that the state post-conviction hearing transcript is ambiguous and could alternatively be read to suggest that Smith mistakenly believed that he may not have been able to introduce Dr. Stewart's testimony at sentencing had he already used it at trial. Martinez alludes to this when he argues that the state post-conviction court failed to consider that the sentencing judge had a "statutory duty" to consider Dr. Stewart's testimony at sentencing. See R.I. Gen. Laws § 12-19.2-4; see also State v. Tiernan, 645 A.2d 482, 485–86 (R.I. 1994) (articulating the importance of refusing to condone the punishment of a defendant with a harsher sentence for exercising their constitutional rights). However, the state post-conviction court's determination here -- i.e., that Smith was merely worried that Dr. Stewart's testimony would have less of an impact at sentencing if it had already been presented at trial -- also has support in the transcript and is entitled to our deference. See Teti v. Bender, 507 F.3d 50, 58-60 (1st Cir. 2007).
- 17 - deemed to be "excellent." Thus, when the state post-conviction
court credited Smith's decision, it simply reflected a recognition
of the commonsense notion that information is often the most
impactful the first time it is delivered and carries less weight
during subsequent presentations.
In support of its conclusion that each of these reasons
justified Smith's decision to save Dr. Stewart's testimony for
sentencing, the state post-conviction court pointed to Smith's
pre-trial consultation with Robert Mann, another member of the
Rhode Island bar. Id. at *6. Mann was "a highly respected criminal
defense attorney" who had "tried difficult forensic psychiatric
cases." Id. After hearing about Martinez's situation, Mann warned
Smith that impeachment of an expert witness like Dr. Stewart with
evidence of Martinez's prior domestic abuse could be "devastating"
and suggested that the PTSD diagnosis "would be put to better use
as mitigation in the sentencing phase of the case." Id. As with
counsel's retention of Dr. Stewart, his consultation with Mann
demonstrates that this is not an instance of a trial counsel simply
failing to investigate the case or making woefully inadequate
strategic choices.
Martinez responds to the state post-conviction court's
logic by downplaying the risk that evidence of his previous abusive
behavior posed, reasoning that it would not have prompted Dr.
Stewart to change his diagnosis. But in doing so, Martinez
- 18 - overlooks the fact that Smith was worried about a different
risk -- that the evidence would leave the jury less likely to
credit Dr. Stewart's testimony. See id. at *6. Martinez also
seeks to navigate any concern about the potentially limited ability
of Dr. Stewart's testimony to overcome the disturbing evidence
against him by pointing to the fact that Dr. Stewart's diagnosis
has never been rebutted. But of course the state never had the
opportunity to challenge that diagnosis at trial, and in any event,
the unrefuted diagnosis also failed to convince the sentencing
judge to grant Martinez any form of leniency. See id. at *1.
Finally, Martinez acknowledges that Robert Mann is
"well-respected and extremely knowledgeable," but characterizes
Smith's interaction with him as "an informal brief courthouse
conversation with an attorney who knew nothing about the case."
Hyperbole aside -- Mann surely knew more than nothing -- it was
reasonable for the state post-conviction court to rely on Smith's
consultation with a respected member of the Rhode Island legal
community to further justify its finding that Smith's decision to
save Dr. Stewart's testimony for sentencing was "reasonable[]
under prevailing professional norms." Strickland, 466 U.S. at
688.
Further supporting the conclusion that the state
post-conviction court did not unreasonably apply the performance
- 19 - prong of Strickland is the fact that none of the cases cited by
Martinez compel a different holding.
Martinez quotes Profitt v. Waldron, 831 F.2d 1245 (5th
Cir. 1987), a pre-AEDPA decision, for the proposition that, in
Martinez's words, "a decision by trial counsel 'cannot [be]
baptize[d] . . . with rejuvenating labels of tactical or strategic
choice' if that decision is unreasonable." (Quoting Profitt, 821
F.2d at 1249) (internal quotation marks omitted). But trial
counsel's challenged decision in Profitt had far less
justification than Attorney Smith's decision here.
In Profitt, the defendant escaped from a mental
institution in Idaho and traveled to Texas, where he raped a woman.
831 F.2d at 1247. The defendant's trial counsel knew about the
escape, but fully abandoned his plan to mount an insanity defense
after a court-appointed psychiatrist deemed the defendant sane at
the time he committed the offense and fit to stand trial. Id. at
1247, 1249. Trial counsel did not make any inquiry of the mental
institution (which would have revealed that an Idaho court had
adjudicated the defendant insane), seek a continuance, or attempt
to put on any other defense. Id. at 1248-49. The Fifth Circuit
granted habeas relief on the petitioner's Strickland claim both
because it "simply c[ould] see no advantage in the decision to
bypass the insanity defense" and because the decision was based on
"information that was faulty [due to trial counsel's] ineffective
- 20 - investigatory steps." Id. at 1249. Here, as we have explained,
there was some advantage in the decision to save Dr. Stewart's
testimony for sentencing, and there is no allegation that Attorney
Smith was ineffective in his investigation. Profitt is inapposite.
Martinez next cites Washington v. Hofbauer, 228 F.3d 689
(6th Cir. 2000), as an example of a federal court granting habeas
relief where a state post-conviction court failed to sufficiently
scrutinize trial counsel's explanation for counsel's decisions.
But the facts underlying the petitioner's ineffective assistance
of counsel claim in Washington bear no resemblance to the facts
underlying Martinez's claim. See 228 F.3d at 695-97.
More to the point, Washington was decided before the
Supreme Court had fully elucidated the deference due to state court
decisions under 28 U.S.C. § 2254, as amended by AEDPA. That
development did not occur until Harrington v. Richter, 562 U.S. 86
(2011), in which the Supreme Court concluded that "[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." Id. at 101
(emphasis added) (quoting Yarborough, 541 at 664). The Washington
court, however, articulated the relevant standard as "whether the
state court's application of clearly established federal law was
'objectively reasonable.'" 228 F.3d at 698 (emphasis added)). In
doing so, the Washington court explicitly declined to adopt a
- 21 - standard that referred to a "reasonable jurist," see id. -- a
standard essentially identical to the one that was adopted later
by the Supreme Court in Harrington. See also Brian R. Means,
Federal Habeas Manual 507-10 (2023) (discussing the evolution of
courts' interpretations of the deference due to state court
decisions under AEDPA and concluding that "[r]esurrection of the
reasonable jurist test was made complete with the [Supreme] Court's
decision in Harrington v. Richter"). Washington cannot carry
Martinez's burden.
Finally, Martinez cites Workman v. Superintendent Albion
SCI, 915 F.3d 928 (3d Cir. 2019), as an example of a federal court
granting habeas relief on an ineffective assistance of counsel
claim because the petitioner's trial counsel entirely failed to
offer any plausible rebuttal to the evidence presented by the
prosecution. The case can be read as having some factual
similarities to Martinez's, which may provide support for his
arguments regarding Strickland's performance prong. But Workman
does nothing to help Martinez overcome AEDPA's deference because
the court there was reviewing the petitioner's claim de novo
because the state court did not consider the claim on the merits.
915 F.3d at 943 (quoting Bey v. Superintendent Greene SCI, 856
F.3d 230, 236 (3d Cir. 2017)). We are not so free from restraint
here.
- 22 - Rather than any of the decisions to which Martinez
points, we find his petition most comparable to Hensley v. Roden,
755 F.3d 724 (1st Cir. 2014). Hensley was also a habeas case
premised, in part, on an ineffective assistance of counsel claim.
Id. at 726–27. And there, too, the Strickland claim focused on
the decision of trial counsel to not present the jury with a
psychiatrist's testimony that the defendant lacked the mental
capacity to form the requisite intent for first-degree murder.
Id. at 729–30, 735–38. We found that the petitioner was "not even
close to surmounting" the hurdles set up by AEDPA, in large part
because the psychiatrist's testimony -- despite concluding that
the petitioner could not have formed the requisite criminal
intent -- would have been "a mixed bag." Id. at 736-38. As
discussed above, Dr. Stewart's testimony here would also have been
a mixed bag, most notably because it would have opened the door to
damaging evidence about Martinez's previous abuse of Lindsay and
other partners.
To be sure, Hensley is not on all fours with Martinez's
case; the trial counsel there did mount a mental impairment
defense, choosing to call friends and family of the defendant
rather than the psychiatrist that trial counsel had retained. Id.
at 728. But that differentiating factor is far less significant
than the ones in the cases to which Martinez analogizes. Hensley
further forecloses Martinez's claim.
- 23 - IV.
In sum, counsel was put to a difficult choice between
whether to mount a defense of Martinez based on no-premeditation
or on diminished capacity. One could argue, with the benefit of
hindsight, that counsel should have made a different decision.
But under the deferential framework of Strickland, "strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable." 466 U.S. at
690. Martinez bears the burden of showing that all fairminded
jurists would disagree with the state post-conviction court's
application of that framework. He has failed to do so. Because
we conclude that the state post-conviction court did not
unreasonably apply the performance prong of Strickland, we -- like
the state post-conviction court -- need not reach the prejudice
prong of the analysis.
For the foregoing reasons, the district court's
dismissal of Martinez's petition is affirmed.
- 24 -