United States Court of Appeals For the First Circuit
No. 22-1652
FAGBEMI MIRANDA,
Petitioner, Appellant,
v.
STEPHEN KENNEDY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.
Susan J. Baronoff, with whom Baronoff Law Office was on brief, for appellant.
Eva M. Badway, Assistant Attorney General of Massachusetts, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.
January 3, 2025 HOWARD, Circuit Judge. In June 2013, Fagbemi Miranda
was convicted of first-degree murder in Massachusetts state court.
At the jury trial, defense counsel's aim was to discredit the
government's key witness, advancing the theory that Miranda's
brother was instead responsible for the shooting. Miranda,
however, wanted to testify that he shot the victim but that it was
in self-defense, so he should be acquitted -- a theory that trial
counsel and the judge did not believe to be viable. The issues in
this habeas case stem largely from that disagreement in approach.
Under the deferential standard of review we apply to state-court
convictions on habeas review, we find Miranda's arguments to be
unavailing and affirm.
I.
A.
The charges against Miranda stemmed from events that
took place in the evening of October 10, 2005.1 Miranda and a man
named Christopher Barros were engaged in an argument outside the
house where Miranda lived with his family (the "Miranda home"),
screaming and aggressively gesturing at one another in close
proximity. A third, unidentified man looked on. Shortly before
1 We primarily draw the facts of the October 10 altercation from the Massachusetts Supreme Judicial Court's decision affirming Miranda's conviction. Commonwealth v. Miranda, 484 Mass. 799 (2020). These are facts that "the jury could have found based on the Commonwealth's evidence." Id. at 800. Details of Miranda's trial, including his testimony, are drawn from trial transcripts.
- 2 - 8:30 p.m., Miranda's younger brother, Wayne Miranda ("Wayne"),
came out of the Miranda home and joined the argument. He then ran
back inside and returned with a black handgun, which he pointed at
Barros's forehead. Miranda tried to get the gun away from Wayne
and push him back into the Miranda home, repeatedly yelling "no"
and telling him to stop.
Barros ran across the street and into an open driveway
alongside a nearby house. Wayne chased after him, and Miranda
chased after Wayne, with the unidentified man following behind.
When the brothers reached the end of the driveway, they halted
near the garage, and after briefly exchanging words, Wayne passed
the gun to Miranda. A neighbor who lived on the second floor of
the house saw Miranda raise the gun and point it toward the fence
on the far side of the yard. Two gunshots rang out. Another
neighbor then saw both Miranda brothers and the unidentified man
emerge from the driveway onto the sidewalk, where one of the
brothers passed the gun to the other brother before going inside
the Miranda home.
Police responded soon after and located Barros, who was
unconscious, on the other side of the fence. No weapons were found
on his person or nearby. He had been shot in the left arm and
leg, and he was pronounced dead upon arrival at the hospital. The
neighbor living in the house did not report what she had seen in
the driveway and refused to make a formal statement. Based on
- 3 - their initial investigation that night, police arrested and
charged Wayne.
About 18 months later, police executed a search warrant
at the neighbor's house, resulting in her arrest for trafficking
cocaine in a school zone and related charges. She entered into a
cooperation agreement with the government to avoid incarceration
in exchange, in part, for truthful testimony about the October 10
shooting.
B.
In March 2008, Miranda was indicted for the murder of
Barros, as well as assault and battery with a dangerous weapon and
unlawful possession of a firearm. By 2011, Miranda and his first
counsel disagreed about how best to approach the case. Miranda's
counsel wanted to defend the case by attacking the neighbor's
credibility, given the cooperation agreement and the fact that she
was the only one who identified Miranda as the shooter. Miranda,
however, insisted that he fired the gun in self-defense and wanted
to testify to that effect. Miranda's counsel filed a motion to
withdraw, which the judge granted. The same conflict arose with
his second counsel. Miranda maintained that he did not want to
"place the guilt" on Wayne. This time, however, the judge twice
denied counsel's motion to withdraw, the second time in part
because Miranda told the judge that he was not prepared to
represent himself at that time.
- 4 - At trial, these differences in desired approach
persisted. Although Miranda's habeas petition challenges several
aspects of his trial, we focus below on the facts relevant to the
issue that we deem closest (though we ultimately conclude it lacks
merit): counsel's failure to direct his testimony.
After the government rested at trial, defense counsel
requested that he introduce Miranda to the jury and allow him to
testify in narrative form instead of through direct examination.
The judge granted that request. In narrative form, Miranda
testified that he drove home after dinner, parked his car, and
noticed Barros in an unfamiliar car parked across the street. In
his telling, Miranda recognized Barros in the car and approached
to greet him, but Barros got out of the car and punched him "for
no apparent reason." Miranda testified that they then got into a
shouting match, with Miranda seeking an explanation. After seeing
the unidentified man then emerge from the passenger side of the
car, Miranda continued, he felt that he was outnumbered and yelled
for help from his brothers inside. He went on to state that Wayne,
who knew there had been a lot of shootings in the neighborhood,
came out with the gun to try to get them to go away. Moreover,
Miranda added, Barros said to Wayne, "Mother-fucker, I'm going to
kill you. Come at me with that, I'm going kill [sic] you." Miranda
then recounted that Barros ran down a nearby driveway, kicked out
a basement window of the adjacent house, and "went to go reach for
- 5 - something." Miranda testified that he then took the firearm from
Wayne at the beginning of the driveway and followed Barros into
the house's yard. He thought he saw Barros on the other side of
a fence, he continued, where "it looked like he's reaching." So,
in his telling, he shot at Barros's arm and leg to "disarm him and
stop the mobility there, that's all," emphasizing that he did not
intend to kill Barros.
The prosecutor cross-examined Miranda, during which
Miranda again admitted to killing Barros but denied that he made
a "conscious decision" to do so because "[e]verything [was] moving
fast." Miranda also explained that the driveway Barros ran down
was located directly across from his house, so "if [Barros] would
have came [sic] out of that driveway while [they] were walking in
the house and started shooting," Miranda, Wayne, and his
grandmother would have been in the line of fire. Defense counsel
did not conduct redirect examination or introduce any other
evidence.
At the trial's conclusion, defense counsel delivered a
summation that emphasized the jury's role in assessing witness
credibility. To do so, he made two arguments that each drew on
that theme. First, he criticized the credibility of the
prosecution's witnesses, highlighting in particular why the
neighbor's cooperation agreement with the government called the
veracity of her testimony into doubt. Second, he noted that the
- 6 - jury could "credit everything Mr. Miranda said," "[t]ake it at
face value," and nonetheless acquit him of first-degree murder in
light of mitigating circumstances. Defense counsel concluded his
remarks by asking the jury to evaluate the prosecution's evidence
"piece by piece, witness by witness," rather than consider
Miranda's testimony alone.
Miranda was ultimately convicted of first-degree murder
with deliberate premeditation, assault and battery with a
dangerous weapon, and unlawful possession of a firearm. He was
sentenced to life in prison without parole.
After trial, Miranda filed a notice of appeal and a
motion for a new trial. Following review in lower courts, the
Massachusetts Supreme Judicial Court ("SJC") affirmed Miranda's
convictions and the denial of his motion for a new trial.
Commonwealth v. Miranda, 484 Mass. 799, 818, 836 (2020). Miranda
filed a petition for a writ of certiorari in the United States
Supreme Court, which was denied in November 2020. Miranda v.
Massachusetts, 141 S. Ct. 683, 683 (2020).
Miranda then turned to the federal courts for habeas
relief, filing a petition in the District of Massachusetts in
October 2021. The district court denied the petition and dismissed
the case in July 2022 but granted a certificate of appealability.
Miranda v. Kennedy, 2022 WL 2953052, at *8 (D. Mass. July 26,
2022). We now review his petition on appeal.
- 7 - II.
Our review of the district court's denial of habeas
relief is de novo. Scott v. Gelb, 810 F.3d 94, 98 (1st Cir. 2016).
However, under the Antiterrorism and Effective Death Penalty Act
("AEDPA"), "our review of state court legal and factual
determinations is highly deferential." Teti v. Bender, 507 F.3d
50, 56 (1st Cir. 2007). When assessing a claim that was
adjudicated on the merits in state court, we "must defer to the
state court determination unless it:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Id. (quoting 28 U.S.C. § 2254(d)). This is a steep hurdle for
Miranda to overcome. Even what we may deem an "incorrect"
application of federal law may not be an "unreasonable" one.
Scott, 810 F.3d at 101 (emphasis omitted) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)). An "unreasonable application"
of federal law exists when "the state court identifies the correct
governing legal principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the prisoner's
case." Porter v. Coyne-Fague, 35 F.4th 68, 74 (1st Cir. 2022)
- 8 - (alteration in original) (quoting Williams v. Taylor, 529 U.S.
362, 412-13 (2000)). The application "must be 'objectively
unreasonable,' not merely wrong; even 'clear error' will not
suffice." White v. Woodall, 572 U.S. 415, 419 (2014) (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). And an application
is unreasonable "if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could
be no 'fairminded disagreement' on the question." Id. at 427
(quoting Harrington, 562 U.S. at 103).
As the district court concluded, Miranda's arguments do
not clear this hurdle. He argues (1) that defense counsel's
actions interfered with his right under McCoy v. Louisiana, 584
U.S. 414 (2018), to decide the objective of his defense -- namely,
to not blame his brother for what he had done and to argue that he
acted in self-defense; (2) that his Fourteenth Amendment right to
due process was violated by the trial judge's refusal to instruct
the jury on self-defense; and (3) that because Miranda was required
to testify in narrative form without preparation, and because his
counsel told the jury in closing argument that they need not credit
Miranda's testimony, Miranda was deprived of his rights to testify
and to effective assistance of counsel. All of these are either
issues on which the SJC's rulings were correct or, at a minimum,
issues on which fairminded jurists could certainly disagree. We
briefly explain why as to each issue, but we go into more depth as
- 9 - to the one issue that merits the closest attention: whether the
failure of Miranda's counsel to prepare and direct his testimony
amounted to ineffective assistance of counsel.
Miranda first argues that his trial counsel interfered
with his right to set the objective of his defense under McCoy,
pointing to his counsel's presentation of a witness-credibility
defense instead of the self-defense argument that Miranda
advocated. The SJC disagreed with Miranda, holding that in this
case "defense counsel and the defendant shared the same principal
objective: outright acquittal" and that their disagreement was as
to "what strategic and tactical approach should be used to achieve
that end." Miranda, 484 Mass. at 822. Specifically, the SJC
observed that "defense counsel did not concede the defendant's
guilt over objection or alleviate the prosecution's burden of proof
on any elements of the charges." Id. at 823. It thus found this
case to be distinguishable from McCoy, which it described as a
case in which "defense counsel's concession of guilt had interfered
with his client's right to insist on his innocence." Id. at 822.
We do not find that the SJC's reasoning was an unreasonable
application of this principle from McCoy.
Miranda's next argument takes aim at the state trial
court, claiming that the trial judge's refusal to issue a jury
- 10 - instruction on self-defense deprived him of his Fourteenth
Amendment right to due process. On review, the SJC considered
"whether there [was] any record evidence to support at least a
reasonable doubt that" Miranda "actually and reasonably believed"
that he was in imminent danger necessitating the use of deadly
force, attempted to use "all proper means and reasonably available
avenues of escape prior to" doing so, and only used the "level of
force reasonably necessary." Id. at 810-11. We see no reversible
error in the SJC's conclusion that Miranda was not entitled to a
jury instruction on self-defense because "[he] had no reasonable
basis for concluding that the victim was armed" and "had numerous
opportunities to retreat and avoid the confrontation once the
victim fled across the street." Id. at 811-12.
C.
Finally, Miranda argues that his conviction is
constitutionally defective because of purported violations of his
rights to testify and to effective assistance of counsel. To make
this argument, Miranda relies on two events at trial: his counsel
and the court's decision to let him testify in an undirected
narrative form without preparation and his counsel's suggestion to
the jury in closing argument that they may discredit that
testimony. The SJC found these arguments unavailing, and under
the highly deferential framework of AEDPA, we cannot say they make
out "clear error" with which no "fairminded jurist" could agree.
- 11 - See White, 572 U.S. at 419; Strickland v. Goguen, 3 F.4th 45, 53
(1st Cir. 2021). We first address Miranda's arguments pertaining
to his narrative testimony before turning to his arguments about
counsel's closing argument.
1.
As an initial matter, it was not unreasonable for the
SJC to conclude that the issue of Miranda's narrative testimony is
properly analyzed under the Strickland v. Washington ineffective-
assistance-of-counsel framework (which requires a showing of
prejudice), 466 U.S. 668, 687 (1984), rather than the United States
v. Cronic deprivation-of-counsel framework (which does not), 466
U.S. 648, 659 (1984). Under Strickland, an individual claiming
ineffective assistance of counsel must show both "that counsel's
performance was deficient" and "that the deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687. Cronic
outlines an exception to that standard, presuming prejudice "if
the accused is denied counsel at a critical stage of his trial."
466 U.S. at 659; see also id. at 659 n.25 ("The Court has uniformly
found constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting the
accused during a critical stage of the proceeding."). However,
"the Cronic exception is exceedingly narrow" and applies only
"where the defendant has demonstrated that 'the attorney's failure
[was] complete.'" United States v. Theodore, 468 F.3d 52, 56 (1st
- 12 - Cir. 2006) (alteration in original) (quoting Bell v. Cone, 535
U.S. 685, 696-97 (2002)). "In other words, 'the circumstances
leading to counsel's ineffectiveness [must be] so egregious that
the defendant was in effect denied any meaningful assistance at
all.'" Id. (alteration in original) (quoting United States v.
Griffin, 324 F.3d 330, 364 (5th Cir. 2003)). Other circuits have
applied the Cronic exception when counsel slept through portions
of a capital murder trial and when counsel sat silently throughout
the entire trial. Id. (citing Burdine v. Johnson, 262 F.3d 336,
341 (5th Cir. 2001) (en banc); Harding v. Davis, 878 F.2d 1341,
1345 (11th Cir. 1989)). We have held that it does not apply to
cases involving "bad lawyering, regardless of how bad." Id.
(quoting Scarpa v. Dubois, 38 F.3d 1, 13 (1st Cir. 1994)).
Miranda argues that his counsel's errors regarding his
testimony amount to denial of counsel and therefore fall under
this exception to the prejudice requirement. But the cases Miranda
cites are consequentially unlike the situation here, where counsel
continued to represent the defendant throughout the trial, advised
him not to testify after explaining the law of self-defense to
him, opted for the strategy of narrative testimony when the
defendant persisted in his desire to testify, and objected to
various questions on cross-examination. Cf. Ferguson v. Georgia,
365 U.S. 570, 571, 596 (1961) (holding that state law requiring
narrative testimony deprived defendants of counsel). Given these
- 13 - affirmative steps by Miranda's counsel to "subject the
prosecution's case to meaningful adversarial testing," it does not
follow that his counsel "entirely fail[ed]" to oppose his
prosecution. Bell, 535 U.S. at 697 (quoting Cronic, 466 U.S. at
659). Rather, Miranda identifies "specific attorney errors" made
by his counsel in the course of defending his case akin to those
that the Supreme Court "[has] held subject to Strickland's
performance and prejudice requirements." Id. at 697-98. Given
the lack of any contradictory Supreme Court decision directly on
point, we thus cannot conclude that the SJC unreasonably applied
clearly established law in determining that this situation did not
fall under Cronic. See Wright v. Van Patten, 552 U.S. 120, 125-
26 (2008) (finding no unreasonable application where no Supreme
Court decision "clearly establishes that Cronic should replace
Strickland in this novel factual context").2 We therefore proceed,
as the SJC did, with applying the Strickland ineffective-
assistance-of-counsel rubric.
In concluding that the issue of Miranda's testimony was "not 2
structural" and instead "properly analyzed as an issue of ineffective assistance of counsel," the SJC, while citing to Cronic, did so only for the proposition that Strickland generally requires a showing of prejudice. See Miranda, 484 Mass. at 830 n.6. But we need not decide whether the SJC's determination "falls beyond the ambit of AEDPA," Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010), because even on de novo review, counsel's error does not fall under Cronic for reasons already explained.
- 14 - Addressing the first step of Strickland, the SJC
concluded that defense counsel had erred by failing to prepare
Miranda to testify and by failing to direct his testimony during
trial. Miranda, 484 Mass. at 828. The SJC analyzed the issue
under Massachusetts Rule of Professional Conduct 3.3(e), which
provides that counsel may not aid in construing false testimony if
counsel knows that the defendant intends to perjure himself. Id.
The SJC concluded that because counsel did not make a formal
invocation of Rule 3.3(e), he did not indicate that he had made a
"good faith determination that there was a firm basis in fact to
conclude his client was about to perjure himself." Id. Absent
that good faith determination, the SJC wrote, "counsel and the
court should not have restricted the form of the defendant's
testimony to an undirected narrative," "defense counsel should
have prepared the defendant to testify," and "defense counsel then
should have directed the defendant's trial testimony." Id. at
828-29. Thus, the SJC concluded that Miranda had established
deficient performance by counsel, satisfying the first prong of
Strickland. See 466 U.S. at 687.
Turning to the second Strickland prong, however, the SJC
concluded that there was no prejudice based on this failure to
- 15 - prepare and direct testimony.3 Miranda, 484 Mass. at 831. This
prong requires the individual to demonstrate that "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. The "defendant need not show that
counsel's deficient conduct more likely than not altered the
outcome in the case," only that there was a "reasonable
probability" that it did. Id. at 693-94. "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id. at 694. The SJC reasoned that because Miranda
had no viable self-defense claim, "there was no likelihood that
counsel's error prejudiced the defendant," "regardless of whether
the testimony was presented in narrative or directed form."
Miranda, 484 Mass. at 831. It noted specifically that "the
defendant's armed pursuit of the victim through the alley and
around the corner, conclusively established by the defendant's own
3 More precisely, the SJC concluded that there was no "substantial likelihood of a miscarriage of justice arising out of the error." Miranda, 484 Mass. at 814. In assessing ineffective- assistance-of-counsel claims, the SJC applies this standard set forth by Mass. Gen. Laws ch. 278 § 33E, "which is more favorable to a defendant than are the Federal or State constitutional standards." Commonwealth v. Mitchell, 438 Mass. 535, 546 n.6 (2003). Given that this standard requires a lesser showing than prejudice, the SJC's conclusion that Miranda had not met this standard inherently encompassed the conclusion that Miranda had not met Strickland's prejudice standard either. We therefore frame our discussion solely in terms of federal constitutional requirements.
- 16 - testimony, compelled the verdict in the instant case." Id. at 831
n.47.
Miranda contends, however, that the SJC did not engage
with his argument that counsel's errors impaired his chances for
a lesser verdict of guilt, such as second-degree murder, even if
it did not affect his chances of outright acquittal.4 Under
Massachusetts law, to find a defendant guilty of first-degree
murder on a theory of deliberate premeditation, the state must
show that "he purposefully caused [the victim's] death after
reflection" and that there were no "mitigating circumstances."
Commonwealth v. Andrade, 488 Mass. 522, 527-28 (2021); see also
Commonwealth v. Vargas, 475 Mass. 338, 353 (2016) ("[M]alice and
mitigating circumstances are mutually exclusive."); Commonwealth
v. Dubois, 451 Mass. 20, 27 (2008) ("Murder with deliberate
premeditation requires the Commonwealth to prove deliberation and
premeditation, a decision to kill and a killing in furtherance of
the decision."). Mitigating circumstances include heat of passion
upon a reasonable provocation, heat of passion induced by sudden
4 Even though "AEDPA constraints do not apply where a state court decision does not resolve a federal claim that was presented to it, and a habeas court will afford de novo review to the claim," Cooper v. Bergeron, 778 F.3d 294, 299 (1st Cir. 2015), Miranda does not argue for de novo review of this issue on appeal and instead assumes that the deferential framework of AEDPA applies. We need not decide the standard of review as to this issue, however, because we conclude, for reasons explained below, that Miranda's challenge would fail under either standard.
- 17 - combat, and excessive use of force in self-defense or in defense
of another. Massachusetts Court System, Model Jury Instructions
on Homicide: IV. Murder in the first degree (2018); see also
Andrade, 488 Mass. at 528; Commonwealth v. Britt, 465 Mass. 87,
95-96 (2013).
There is no question that the prejudice prong of
Strickland applies to situations in which a defendant might have
achieved a lesser sentence or conviction in the absence of
counsel's errors. See, e.g., Lafler v. Cooper, 566 U.S. 156, 165
(2012) ("[A]ny amount of [additional] jail time has Sixth Amendment
significance." (second alteration in original) (quoting Glover v.
United States, 531 U.S. 198, 203 (2001))). In other words,
prejudice does not require showing that there is a reasonable
probability that the defendant would have been fully acquitted,
only that "the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. Being convicted of a lesser crime
than first-degree murder certainly would have been a different
result. Miranda thus must show, at a minimum, a reasonable
probability that his testimony would have led to a lesser
conviction had it been properly developed and directed by counsel.
He fails to do so.
Miranda first argues that "[d]efense counsel's very act
of abandoning [him] to testify in narrative form . . . undermined
[his] testimony" concerning both deliberate premeditation and
- 18 - mitigating circumstances by "communicat[ing] to the jury that
defense counsel did not want [him] to testify and did not credit
his story." Given the speculative nature of this contention,
however, we do not see how the format of the testimony -- on its
own -- could give rise to a reasonable probability of a lesser
conviction. Nor does Miranda cite any authority holding that it
does.
Miranda also argues that because he was left to testify
to these issues in narrative form without preparation, direction,
or redirection, his testimony was disorganized and incomplete,
leaving out key explanations. Miranda testified that he did not
intend to kill Barros, that he believed Barros was reaching for a
gun, that Barros threatened to kill his brother, and that Barros
began the confrontation by striking Miranda. He contends that,
with preparation and direction, he would have explained why he
thought Barros had access to a firearm, why he believed it was not
possible to retreat, or what he knew about Barros's prior acts of
violence and involvement in the drug trade. In sum, he contends
that he was "unable to explain fully the reasons for [his] state
of mind at the time."
But Miranda did explain his state of mind during his
testimony. He testified, albeit during cross-examination, that
Barros chose not to run "south on Purchase [Street]," which was an
"avenue[] of escape," and instead ran down a driveway that is "a
- 19 - known stash spot" for weapons and drugs, because it was "the only
driveway that's on that street with no gate." And in response to
the prosecutor's question about his decision not to retreat, he
explained that he was "not making a conscious decision" at the
moment because "[e]verything [was] moving fast" and he was worried
that Barros had a weapon and "would [come] out of that driveway
while we were walking in the house and start[] shooting." Indeed,
in articulating what he would have said had counsel prepared and
directed him, Miranda largely repeats what he did say on the stand
during his narrative testimony.5 And "[c]umulative evidence
generally 'offer[s] an insignificant benefit, if any at all' for
purposes of a Strickland claim." Ayala v. Alves, 85 F.4th 36, 60
(1st Cir. 2023) (second alteration in original) (quoting Wong v.
Belmontes, 558 U.S. 15, 23 (2009)).
Thus, even assuming that Miranda had a viable claim for
second-degree murder or voluntary manslaughter, we see no
reasonable probability that his testimony would have led to such
5 The only additional explanation that Miranda proffers for his state mind on appeal -- on top of what he testified to above -- pertains to what he knew or heard about: (1) Barros's prior acts of violence and involvement in the drug trade; and (2) the tendency of "people in the drug trade" to "track people to their homes and assault them there if they have a beef with them." Given the explanations that Miranda did provide in his narrative testimony -- that Barros punched him for "for no apparent reason" and threatened to kill his brother -- we see no reasonable probability that this additional testimony would have led to a different outcome.
- 20 - a conviction had it been properly developed and directed by
counsel, and we certainly do not find the SJC's conclusion to the
same effect to be unreasonable.
2.
As for Miranda's challenge to defense counsel's closing
argument, the SJC concluded that it did not violate Miranda's
rights to testify and to effective assistance of counsel. Miranda,
484 Mass. at 833-34. After reviewing defense counsel's closing
argument, the SJC held that "he made proper argument in the
alternative, providing the jury a path to an acquittal if the jury
decided to believe that the defendant's testimony was designed to
protect his younger brother, or to a verdict of less than murder
in the first degree if the jury credited the defendant's
testimony." Id. at 833. Although Miranda contends that the
summation "heavily skewed toward" the defense counsel's preferred
strategy, the SJC's conclusion to the contrary did not constitute
an "unreasonable application" of federal law under our deferential
standard of review. See 28 U.S.C. § 2254(d)(1).
III.
We therefore affirm the district court's denial of the
petition.
- 21 -