Strickland v. Goguen

3 F.4th 45

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 2021
• Docket: 19-2104P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2104

JASON STRICKLAND,

Petitioner, Appellant,

v.

COLETTE GOGUEN, Superintendent, NCCI Gardner,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Ira L. Grant and the Committee for Public Counsel Services, for the appellant. Maura Healey, Attorney General of Massachusetts, and Susanne G. Reardon, Assistant Attorney General, for the appellee.

June 30, 2021 THOMPSON, Circuit Judge. A jury convicted petitioner

Jason Strickland of multiple counts of assault and battery on his

step-daughter Haleigh Poutre who was eleven years old when the

final attack landed her near death in the hospital.1 After

Massachusetts' state courts denied Strickland's appeals, he

migrated to the United States District Court for the District of

Massachusetts, seeking a writ of habeas corpus via 28 U.S.C. § 2254

as amended by the Antiterrorism and Effective Death Penalty Act

(AEDPA). Strickland alleged violations by the trial court of his

constitutional rights "to present a complete defense" and to have

effective assistance of counsel, and the district court denied his

petition. See Strickland v. Goguen, No. 16-cv-11364-ADB, 2019 WL

4675031, *1 (D. Mass. Sept. 25, 2019). Before us, Strickland

repeats those claims. After careful consideration and mindful of

AEDPA's strict requirements, we affirm.

Background

In scrutinizing a state conviction on habeas review

pursuant to AEDPA, we accept the state court's factual findings.

See Dorsica v. Marchilli, 941 F.3d 12, 14 (1st Cir. 2019) (quoting

Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014)). If the

Supreme Judicial Court of Massachusetts, the Commonwealth's

1 Although the record does not reflect this, Haleigh survived the injuries. See Kaitlin Goslee, Haleigh Poutre, 10 Years Later, WWLP 22 News (May 11, 2015, 6:00 PM) https://www.wwlp.com/news/haleigh-poutre-10-years-later.

- 2 - highest court, has declined to review the conviction, then we can

rely upon the "'last reasoned decision' issued by the Massachusetts

Appeals Court" (MAC) in crafting the factual and procedural

narrative. Id. (quoting King v. MacEachern, 665 F.3d 247, 252

(1st Cir. 2011)). We do so here, supplementing with facts from

the record where appropriate. See Companonio v. O'Brien, 672 F.3d

101, 104 (1st Cir. 2012) (citing Yeboah-Sefah v. Ficco, 556 F.3d

53, 62 (1st Cir. 2009)). A heads-up to the reader, the details of

what unfolded are disturbing.

The Abuse

The MAC starts its recitation of the story at the

end: "When . . . Haleigh Poutre arrived at the hospital on

September 11, 2005, she was unconscious and barely breathing, her

pale, emaciated body was covered in bruises and huge burns."

Commonwealth v. Strickland, 23 N.E.3d 135, 138 (Mass. App. Ct.

2015). Her "face was bloody, bruised, and distorted," and "the

back of her head was swollen, lacerated, and bleeding." Id. In

trying to save Haleigh's life, doctors described her head as

"boggy" because of the amount of blood pooling in her skull. Id.

at 139. She could barely breathe, her vital signs hovered around

death (her body's core temperature was only eighty-one degrees),

and she was both unconscious and unresponsive. See id. Additional

signs such as fixed pupils and "postur[ed]" limbs "signal[ed] a

traumatic brain injury." Id. Doctors also discovered evidence of

- 3 - other abuse. Haleigh bore injuries on her wrists consistent with

wearing restraints, cigarette burns covered her left foot and left

arm, lacerations scarred her buttocks, and "other injuries of

varying age [covered her] from her head to her toes." Id. at 139

& n.3.

Haleigh's injuries occurred over the course of years,

but we will start with the traumatic head injury, which brought

her to the hospital and which spurred the police to investigate

Strickland. At the time she sustained the brain injury Haleigh

lived with her adoptive mother Holli Strickland (who also happened

to be Haleigh's maternal aunt) and her stepfather Strickland. See

id. at 140.

According to eyewitness testimony from Holli's

biological daughter (let's call her J),2 on September 10, 2005,

the day before Haleigh's hospitalization, the Stricklands kicked

Haleigh down the basement staircase. See id. And this was not

the first time. See id. Alicia Weiss -- the Stricklands' neighbor

and sometimes babysitter, and Holli's close friend -- testified to

observing Holli kick Haleigh down the basement stairs repeatedly

in 2005, forcing Haleigh to unfurl herself from the floor at the

bottom and return to the top where she suffered the routine over

and over. Although, according to Weiss, Strickland was not present

2 Because J was only twelve when she testified at trial, we refrain from using her full name.

- 4 - for this earlier staircase abuse, J testified that sometime in the

afternoon or early evening of September 10 (one of the

Commonwealth's experts at trial estimated that the injury occurred

around 4 P.M.) Strickland participated in the stair-kicking

torment. Id. at 139-40. While Haleigh was sprawled on the

basement floor, J remembered Strickland then shaking Haleigh at

the bottom of the stairs to rouse her before next carrying her

limp body upstairs, initially putting her into an empty bathtub on

the first floor and then placing her into bed.3 See id. at 140.4

Instead of getting medical help for Haleigh that

evening, Strickland went to the mall with J and J's younger brother

around 7 or 8 P.M.5 See id. at 140-41. The following afternoon

(September 11) the family went to J's soccer game where they met

up with Haleigh's uncle. Id. at 141. While the rest of the family

was out, Weiss babysat Haleigh, who remained in bed. Id. Weiss

3 J could not remember precisely when she saw the abuse. She testified that she had played a soccer game before it happened and that Strickland carried Haleigh upstairs before her bedtime.

4 Indeed, when the police searched the Stricklands' home following Haleigh's hospitalization, they found "holes, indentations, and small brown blood stains on the walls of the stairway leading to the basement. Blood stains were also located on three walls of the basement playroom area, as well as in the first-floor bathroom." Strickland, 23 N.E.3d at 140. Forensic tests of the blood "match[ed] Haleigh's blood." Id.

5 Holli was the biological mother of both J and her younger brother. Strickland was the biological father only of J's younger brother, who was two years old in 2005.

- 5 - checked on Haleigh three times, seeing "some foam on Haleigh's

mouth," but "Haleigh neither moved nor woke up." Id. When the

family returned, it was Haleigh's uncle who brought the child down

from her room and insisted Holli take Haleigh to the hospital where

the doctors assessed her traumatic brain injuries; by then it was

around 2:30 P.M. Id. At trial, whereas the defense put on evidence

that Haleigh hurt herself by landing on her head after a failed

backflip attempt and that her brain could not have suffered such

trauma from falling down the stairs, see id. at 141-42, the

Commonwealth's experts confirmed that stairs could create such

harm to a person pushed with "significant external force[], such

as a [strong] push or kick of the child at the top," id. at 139.

Of course, a fall could not have caused the extensive

injuries Haleigh endured, as described by the Commonwealth's

expert over the course of "almost one hundred pages of [trial]

transcript." Id. at 139 n.3. As for the other injuries, J

testified that "she had seen Holli and Strickland hit Haleigh with

their hands, a belt, and a baseball bat, and that she saw scabs

and bruises all over Haleigh." Id. at 140. During their search

of the Stricklands' home, police recovered a "Leatherman tool"6

and a baseball bat from the home; the Leatherman had "brownish

6 A "Leatherman tool," according to Strickland's testimony, is something that has different attachments in the handle, like knives, a screwdriver tool, and a corkscrew.

- 6 - material on it . . . indicat[ing] a mixture of blood" for "which

Haleigh was a potential contributor." The "aluminum bat" had

"Haleigh's name on it." Id. Weiss told the jury that Holli beat

Haleigh's lower legs with the bat while Strickland aided Holli in

interrogating the child about such crimes as hiding candy wrappers.

Id. at 141. Weiss and one of J's friends also testified to seeing

Strickland: strike Haleigh on the hand with a "plastic tubular

wand;" drag Haleigh into the house by the ear and slam her into a

chair; take Haleigh into a bathroom with Holli "after which a

muffled cry was heard and Haleigh emerged with a bloody lip;" and

striking Haleigh "in the head with his hand." Id. at 141.

In July 2006, a Commonwealth grand jury indicted

Strickland on multiple counts of assault and battery against a

child causing substantial injury.7 The first two counts charged

Strickland under Massachusetts General Laws ch. 265, § 13J(b) for

the September 10, 2005 stair incident (count 1) and for an

unspecified injury or injuries prior to September 11 (count 2).

The crime contains two theories of guilt. A conviction can be

obtained for a defendant's actual assault and battery causing

substantial bodily injury to a child, or, under the second theory,

7 Holli was also arrested for child abuse. After being released on bail and before she or Strickland was indicted, Holli was found dead along with her adoptive mother on September 22, 2005. It was apparently a murder-suicide. See Strickland, 2019 WL 4675031, *1 n.1.

- 7 - a conviction can be obtained for a defendant "wantonly or

recklessly permitting, or wantonly or recklessly permitting

another to commit [such] an assault and battery." Mass. Gen. Laws

ch. 265, § 13J(b). Additionally, Strickland faced three counts of

assault and battery by means of a dangerous weapon: bat (count 3);

shod foot (count 4); and tubular wand or stick (count 5). See id.

at § 15A(b). Finally, the indictment charged Strickland with

general assault and battery for striking Haleigh with his hand

(count 6). See id. at § 13A.

The Trial

At trial, the defense argued Strickland was oblivious to

what he had come to understand was the reality of Holli's abusive

behavior. Before September 10, 2005, his wife told him (and he

said he believed) that Haleigh was abusing herself. See id. at

141-42. In support of his claim of innocence, Strickland called

to the stand Pamela Krzyzek, a health professional who visited the

family's home to check on Haleigh on behalf of Massachusetts'

Department of Social Services.8 She "testified that Haleigh told

8 Holli convinced the agency, now known as the Department of Children and Families, see Strickland 23 N.E.3d at 145 n.13, to remove Haleigh from the home of her biological mother (Holli's sister) when Haleigh was four years old because, as Holli and Haleigh told the agency, Haleigh's mother and boyfriend were sexually abusing the child. Shortly following Haleigh's hospitalization, Holli's ex-husband told the agency that Holli had both invented the sexual abuse and coached Haleigh on what to say to the agency. Apparently, Holli and her ex-husband had gone through a miscarriage and Holli wanted Haleigh as her own daughter.

- 8 - [Krzyzek] she heard voices telling her to hurt herself and that

[Haleigh] had hit her [own] knees with a hammer." Id. at 141.

Another witness aiding Strickland's story of ignorance was a

mother, Stephanie Trent Adams, whose children attended daycare at

the Stricklands' home (Holli ran a daycare for some time). She

testified on several key points: Strickland worked during the day;

she had witnessed Haleigh "punching herself, and hitting her[self]

against the wall of a cubby;" she saw Haleigh "stair-surfing,"

which, as best as the record shows, is a game in which children

slide down stairs on their behinds step-by-step. Id. Strickland

eventually took the stand reiterating his defense theory. He

denied any wrongdoing, and stressed he had "believed Holli when

she told him that Haleigh was injuring herself and was receiving

treatment for this condition" and he put forward that "[o]nly Holli

would take Haleigh to these [doctors'] appointments and would speak

with the medical providers." Id. at 141-142. He also stated he

enjoyed Haleigh's company, hugged her often, and treated her like

a biological daughter.

Strickland, in addition, wanted Haleigh's medical

providers to testify to their belief that Haleigh was self-

abusive.9 Id. at 142. Alongside their testimony, Strickland

9 Specifically, the medical providers were Haleigh's pediatrician (Dr. Rukmini Kenia), nurse practitioner (Susan Malloy), therapist or social worker (Carol Fields), and psychiatrist (Dr. Frank Gatti). Because the differentiation does

- 9 - sought to introduce medical records reflecting that the medical

providers regularly saw Haleigh from at least 2001 until September

2, 2005 -- indeed, almost weekly in 2004 and 2005 -- and that they

treated Haleigh for self-abuse after "observ[ing] bruises and

burns." Id. The witnesses and medical records would, defense

counsel argued, "corroborate [Strickland's] belief" that he "had

no reason to protect [Haleigh] because he thought it was self-

abuse, so did the doctors, so did everybody else." Id. Defense

counsel contended the providers' states of mind -- what they

believed about Haleigh's medical condition -- would help

Strickland overcome the jury's likely skepticism that he did

nothing wrong. See id. at 142-43.

In the MAC's factual summation, it described

Strickland's evidentiary trial proffer as the "novel use of medical

testimony and reports to buttress" his contention that "he

reasonably believed Holli when she told him that Haleigh's injuries

resulted from self-abuse, and that he reasonably concluded that

Haleigh was being appropriately treated by medical professionals,

and that he therefore did not need to take additional actions to

protect her." Id. at 143. The trial judge, the MAC noted, was

unpersuaded. He excluded the evidence because, in part, he deemed

not matter for our analysis and because Strickland's brief does not distinguish them, we refer to them collectively as "medical providers."

- 10 - the evidence irrelevant to Strickland's defense since the excluded

testimony and medical records could only illustrate the medical

providers' beliefs, not Strickland's.10

The jury convicted Strickland of five of the six counts

brought by the Commonwealth. For counts 1 (the stair-kicking) and

2 (assaults causing substantial injury before September 11), the

jury found Strickland guilty of "wantonly or recklessly

permitting, or wantonly or recklessly permitting another to commit

[such] an assault and battery." Mass. Gen. Laws ch. 265, § 13J(b).

For the first two counts, the jury did not convict Strickland of

actually abusing Haleigh, but they did convict him for his actual

abuse of Haleigh on counts 3 (bat), 5 (tubular wand), and 6

(hand).11 Strickland, 23 N.E.3d at 138.

Strickland's Appeals and Petitions

The MAC explained that while Strickland's trial was in

process Haleigh's legal guardian filed a civil suit against

Haleigh's medical providers, including Krzyzek. Krzyzek hired two

10The trial judge also concluded Strickland offered the evidence for the impermissible purpose of corroborating Holli's and Haleigh's inadmissible hearsay statements to the medical providers. See Strickland, 23 N.E.3d at 143. The judge had permitted a limited range of hearsay statements from Holli and Haleigh concerning the source of Haleigh's injuries to come through Strickland's testimony, but that was the limit of his allowance. 11The jury acquitted Strickland of count 4, which, as a reminder, was assault and battery by means of a dangerous weapon (shod foot).

- 11 - experts, Dr. Robert Chabon and social worker Beth Wechsler who

each filed a report concluding that "Holli presented a case of

[Munchausen Syndrome by Proxy (MSBP)] and that in the circumstances

neither Krzyzek nor her employer reasonably could have been

expected to determine that Haleigh was the victim of child abuse."

Id. at 150. Mothers presenting MSBP harm "someone else, often a

child," to gain attention as a loving caretaker. Id. at 149. They

manipulate and lie to convince those with some responsibility for

caring for the child (such as medical providers or government

agencies) that there is a medical reason for the child's injuries

other than abuse. See id. The mother can get away with the abuse

in part because with MSBP, as Dr. Chabon explained, the "family

constellation typically includes . . . completely oblivious"

fathers who are "away at work a great deal." Id.

Partially in light of this evidence presented in the

civil lawsuit, Strickland filed both a direct appeal of his

conviction and a motion for a new trial. Among other claims not

relevant to this habeas petition, the appeal contended

that: (1) the trial judge "improperly excluded medical evidence

from Haleigh's [medical providers] with respect" to count two

(wantonly or recklessly permitting multiple injuries to Haleigh on

or before September 11, 2005); and (2) trial "counsel was

ineffective . . . for failing to obtain an expert witness on a

psychiatric condition known as [MSBP]." Id. at 138-39. To support

- 12 - the motion for a new trial on the second claim, Strickland attached

the expert reports of Dr. Chabon and social worker Wechsler. See

id. at 149. The motion judge, who was not the trial judge, denied

Strickland's plea. See id. at 141.

It is from this denial that Strickland sought relief

from the MAC. See id. at 138. We will delve into the MAC's

reasoning more thoroughly as we discuss each issue below. For

now, it is enough to know that the court affirmed Strickland's

convictions because any constitutional error regarding the

exclusion of the medical providers' evidence was harmless, see id.

at 144, and upheld the order denying Strickland's motion for a new

trial because trial counsel was not ineffective, see id. at 150.

The Supreme Judicial Court of Massachusetts declined to hear

Strickland's appeal. See Strickland, 2019 WL 4675031, at *6.

With his state remedies blocked, Strickland filed a

habeas corpus petition pursuant to 28 U.S.C. § 2254 with the

federal district court in Massachusetts, raising the "same

arguments that were considered by the [Massachusetts] superior and

appellate courts." Id. Following the MAC's reasoning, and quoting

the opinion at length, the district court denied Strickland's

petition. See id. at *7-8. He appealed to us, and now it is our

turn to assess those same claims.

- 13 - Discussion

To set the stage, we briefly summarize Strickland's

claims before us. First, he thinks the MAC unreasonably applied

federal law when finding any error related to the exclusion of the

medical providers' evidence and testimony to be harmless. Second,

he thinks the MAC unreasonably applied federal law when rejecting

his ineffective assistance of counsel assertion. Neither claim

can succeed, as we explain.

I. Standard of Review

The federal habeas statute AEDPA (which we previewed

earlier) governs under what conditions state prisoners like

Strickland can file habeas petitions in federal courts, and

mandates how federal courts review those petitions. 28 U.S.C.

§ 2254. The complex statutory scheme demands a lengthy description

of the way it instructs us to examine Strickland's petition, but

we can summarize one of AEDPA's most pertinent characteristics

succinctly, one which cramps the petitioner's hope of relief.

Congress demanded we give great deference to state court decisions

such that we are "bound by AEDPA's tight (to say the least)

parameters" to grant habeas relief only in rare circumstances.

Dorsica, 941 F.3d at 14; see Davis v. Ayala, 576 U.S. 257, 268

(2015); Fry v. Pliler, 551 U.S. 112 (2007) (recognizing "that AEDPA

limited rather than expanded the availability of habeas relief").

To that end, "[f]actual determinations by state courts are presumed

- 14 - correct absent clear and convincing evidence to the contrary, and

a decision adjudicated on the merits in a state court and based on

a factual determination will not be overturned on factual grounds

unless objectively unreasonable" given "the evidence presented in

the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322

(2003) (citations omitted) (citing 28 U.S.C. §§ 2254(d)(2),

(e)(1)).

Let's start off with the relatively easy part. We

examine the district court's decision denying habeas relief with

no deference, but rather we review petitioner's claims, as lawyers

say, de novo. See Scott v. Gelb, 810 F.3d 94, 98-99 (1st Cir.

2016) (quoting Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir.

2009)). We do this not out of disrespect, but because "we are

effectively in the same position as the district court" to look at

"the state court record" when, as here, the district court did not

conduct any factfinding. Rivera v. Thompson, 879 F.3d 7 (1st Cir.

2018) (quoting Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)).

It is at this stage when a petitioner starts to face a

"steep climb." Cooper v. Bergeron, 778 F.3d 294, 299 (1st Cir.

2015). The statute "mandates [the] highly deferential federal

court review of state court holdings" we mentioned earlier when,

as here, the state court adjudicated the merits of the petitioner's

- 15 - habeas claim. Gelb, 810 F.3d at 99 (quoting Zuluaga, 585 F.3d at

27).12

Our deference to the state court runs out, such that we

can grant habeas relief, only if the petitioner can demonstrate

the state court's decision on the merits was "contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States."13 28 U.S.C. § 2254(d)(1). We key in on "unreasonable

application" because that is where Strickland appears to rest his

claims. Gelb, 810 F.3d at 101 (quoting Harrington v. Richter, 562

U.S. 86, 101 (2011)). When analyzing an "unreasonable application"

AEDPA claim, we can grant habeas corpus if the state court

identified the correct governing principle -- one which comes from

Supreme Court decisions -- but unreasonably applied that principle

to the petitioner's case. See Williams v. Taylor, 529 U.S. 362,

412–13 (2000); see also Woodfox v. Cain, 772 F.3d 358, 367–68 (5th

12 Neither party contends the MAC did not resolve the merits of Strickland's claim. For completeness, though, what we mean by the merits is a decision "finally resolving the part[y's] claims," one which addresses the "substance of the claim[s]" and which does not resolve the disputes based "on a procedural, or other, ground." Gelb, 810 F.3d at 99 (quoting Yeboah-Sefah, 556 F.3d at 66). 13 For the record, the Supreme Court has clarified that the "contrary to" inquiry is different from the "unreasonable application" inquiry, but we need not get into the distinction because Strickland seems to argue only that the MAC unreasonably applied governing federal law. See Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

- 16 - Cir. 2014) (when reviewing a state court's decision under the

"unreasonable application" prong, courts focus on "the ultimate

legal conclusion that the state court reached and not on whether

the state court considered and discussed every angle of the

[claim]").

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." Dorsica,

941 F.3d at 17 (quoting Bebo v. Medeiros, 906 F.3d 129, 134 (1st

Cir. 2018)); see also Gelb, 810 F.3d at 101 (petitioner must

demonstrate "the state court's ruling on the claim . . . was so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility of

fairminded disagreement" (quoting Richter, 562 U.S. at 103));

Bergeron, 778 F.3d at 299 (only an "objectively unreasonable" legal

error will warrant relief (citing White v. Woodall, 572 U.S. 415,

419 (2014))). Moreover, we give more leeway to more generalized

rules, like applying the ineffective assistance of counsel

standard. See Dorsica, 941 F.3d at 17 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)); Richter, 562 U.S. at 105. If

the petitioner has managed to demonstrate such an error, it is

still not enough to win because he must also illustrate "actual

prejudice" resulted from the mistake. Ayala, 576 U.S. at 267

- 17 - (quoting Brecht v. Abrahamson, 507 U.S. 619, 634 (1993)); Fry, 551

U.S. at 120 (incorporating the Brecht prejudicial standard into

AEDPA review).

Because explaining AEDPA's setup was more than a

mouthful, we pause to make pellucid how the standard of review

applies to Strickland's appeals. For his excluded medical

providers' evidence claim, recall the MAC concluded that any

possible error was harmless. Strickland, 23 N.E.3d at 144.

Therefore, we must assess whether the MAC applied the federal

harmlessness test unreasonably. See Ayala, 576 U.S. at 269;

Dorsica, 941 F.3d at 19-20. We are not asking whether Strickland's

substantive evidentiary claims are correct. Similarly, for

Strickland's second claim about ineffective assistance of counsel,

we are assessing whether the MAC unreasonably applied the federal

ineffective assistance of counsel test when determining

Strickland's claim had not passed muster.14 Strickland, 23 N.E.3d

14 Neither party contends the MAC did not apply federal law, even though it assessed Strickland's claims using Massachusetts law. See Strickland, 23 N.E.3d at 143-44, 149-150. A state court decision applying state law deserves deference under AEDPA "as long as the state and federal issues are for all practical purposes synonymous and the state standard is at least as protective of the defendant's rights." Gelb, 810 F.3d at 99. Massachusetts applies a test to determine whether a constitutional error was harmless that is at least as protective as its federal equivalent. See Dorsica, 941 F.3d 12, 19 (noting the Massachusetts harmlessness test in Commonwealth v. Marini, 378 N.E.2d 51, 58 (Mass. 1978) quotes from the federal standard outlined in Chapman v. California, 386 U.S. 18, 24 (1967)); see also Petrillo v. O'Neil, 428 F.3d 41, 45 (1st Cir. 2005). The same is true of Strickland's ineffective

- 18 - at 150. We are not examining the merits of Strickland's

ineffective assistance of counsel argument. For what it's worth,

the government thinks the MAC's conclusion was reasonable to say

the least.

II. Constitutional Right to Present a Defense and Harmless Error

Because we are evaluating whether the MAC unreasonably

applied clearly established federal law, we turn first to the MAC's

decision and the substantive law before getting to the merits of

Strickland's allegations.

A. The MAC's Reasoning and Harmlessness Law

The MAC assumed the excluded medical providers' evidence

regarding Haleigh's self-abuse (both testimony by the providers

and medical records to that effect) would have "buttress[ed] the

defendant's credibility on the wanton or reckless mens rea element

of" counts 1 and 2. Strickland, 23 N.E.3d at 143-44. Yet, the

MAC avoided "decid[ing] whether the judge's ruling" violated

Strickland's constitutional right to present a defense by

assistance of counsel claim, where the MAC relied upon Commonwealth v. Saferian, 315 N.E.2d. 878, 882-83 (Mass. 1974). See Lynch v. Ficco, 438 F.3d 35, 48 (1st Cir. 2006) (noting Saferian is at least as protective as the federal standard outlined in Strickland v. Washington, 466 U.S. 668 (1984)); Commonwealth v. Epps, 53 N.E. 3d 1247, 1258-59 (Mass. 2016) (describing the Saferian standard). Because the MAC therefore applied a "functional equivalent" of federal law in applying the state standard for each of Strickland's arguments (and because neither party argued otherwise), we will review the MAC's decisions grounded in state law in the deferential manner demanded by AEDPA. Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011).

- 19 - concluding any such exclusion was harmless. Id. (quoting

Commonwealth v. Smith, 951 N.E.2d 674, 685-86 (Mass. 2011)). To

the MAC, there was substantial other evidence of Strickland's guilt

and the medical providers' testimony and records were cumulative

of other evidence Strickland put forward concerning his defense.

Id.

Our review of that decision takes off from a different

starting line than where the parties place it. While Strickland

and the Commonwealth lay out the contours of a federal

constitutional right to present a defense, see, e.g., Crane v.

Kentucky, 476 U.S. 683, 690 (1986), remember that we are actually

concerned with whether the MAC unreasonably applied the

harmlessness test for constitutional errors, see Dorsica, 941 F.3d

at 19-20.

The Supreme Court articulated the harmlessness test in

Chapman v. California, 386 U.S. 18 (1967): "some constitutional

errors" are simply too "unimportant and insignificant" in the

circumstances of the case to require reversal. Id. at 22; see

also Ayala, 576 U.S. at 268; Glebe v. Frost, 574 U.S. 21, 23 (2014)

(per curiam) ("Most constitutional mistakes call for reversal only

if the government cannot demonstrate harmlessness."). With

respect to constitutional errors impeding a defendant's qualified

right to present a defense of his choosing, we will not set aside

the conviction if the error was "harmless[] beyond a reasonable

- 20 - doubt." United States v. Catalan-Roman, 585 F.3d 453, 466 (1st

Cir. 2009), as amended (Dec. 23, 2009).

B. A Reasonable Application

We arrive finally at the heart of the matter on his first

claim. On appeal, Strickland contends the MAC's harmlessness

analysis was unreasonable as a matter of federal law because the

excluded testimony and records were not only "central[] to the

[i]ssues . . . of the case," but were the "crux" of his defense -- namely

what he knew or reasonably could have known about Haleigh's

injuries (for counts 1 and 2), and whether "he ever abused Haleigh"

(for counts 3, 5, and 6). Because the evidence's exclusion

prevented the jury from having "the complete picture" of his

defense, Strickland also alleges the MAC improperly decided any

error was harmless because Strickland's hoped-for evidence was

cumulative.

According to Strickland, the evidence was central to his

case because the jury had a hard time believing his defense without

it. He keys in on the jury's conviction only for "wantonly or

recklessly permitting the abuse" on counts 1 and 2, arguing that

the jury's failure to convict him for actually abusing Haleigh for

those two counts of assault and battery causing substantial bodily

injury on a child demonstrates that the jury did not credit all of

the eyewitness testimony (recall, J testified that Strickland

kicked Haleigh down the stairs). As Strickland postulates, the

- 21 - eyewitness testimony "was not so compelling that it rendered

harmless the exclusion of the medical evidence . . . Strickland

sought to introduce."

The MAC swatted away Strickland's contention that

"evidence about Holli's deception would have been" central to the

case. In the MAC's view, it was possible that the excluded medical

providers' evidence could have corroborated Strickland's testimony

and defense theory that he, like the doctors, was convinced Haleigh

abused herself and was receiving appropriate care. Strickland, 23

N.E.3d at 143-44. But the MAC found the corroborative value of

the excluded medical providers' evidence to be, at best, minimal,

and its exclusion to thus be harmless. Id. at 144-45.15

For one, the excluded evidence would have only addressed

how Holli deceived the medical providers, not whether (or how)

Holli could have hidden from Strickland the truth of Haleigh's

abuse. See id. at 144. Strickland admitted to having no

interaction with the medical providers and never "sp[oke] to a

doctor when his child was continually suffering such horrible

injuries," so the medical providers' beliefs would not have

directly impacted what he thought or knew was happening. Id. at

145. Further, Holli's success at convincing the medical providers

Strickland conceded that the medical providers' evidence 15

could not be considered for its truth (whether the medical providers actually believed Haleigh was self-abusive), which further marginalizes the evidence's centrality.

- 22 - that Haleigh abused herself, as the evidence presumably would have

shown, would not automatically have led a jury to infer that Holli

"conceal[ed] her abuse in the home" from Strickland. Id. at 144.

Strickland, after all, lived in the house and had "direct and

contemporaneous" observations that the MAC determined were "not

susceptible to [the] distortion or obscuration" Holli could manage

with the medical providers with whom Strickland did not correspond.

Id. Strickland's vantagepoint for and subsequent inaction

following Haleigh's abuse, according to the MAC, "virtually

extinguished" any corroborative value of the evidence for which

Strickland sought to introduce it. Id. at 145.

In addition to finding a lack of corroborative value to

Strickland's evidentiary proffer, the MAC described the "testimony

[as] largely cumulative of other proof," such as Krzyzek's

testimony, "that informed the jury of incidents of self-abuse

reported by Haleigh and treatment and monitoring of Haleigh for

these injuries." Id. Strickland contends that he could not

"elicit the crucial point that Holli told Haleigh's [medical]

providers that Haleigh's injuries were self-inflicted and that

they accepted these representations as reasonable." However, the

MAC pointed out that the jury heard plenty of evidence

corroborating Strickland's defense. Krzyzek testified to

observing injuries on Haleigh and to hearing both Holli and Haleigh

explain the injuries as self-abuse, such as hitting her own knees

- 23 - with a hammer (in part because she heard voices telling her to

hurt herself). Krzyzek also told the jury that Haleigh picked at

her scabs and stair surfed, among other acts; behaviors she noticed

during her "regular body checks." Id. Further, defense counsel

elicited testimony on cross from one of the Commonwealth's experts

that Haleigh's nurse practitioner had characterized some of

Haleigh's injuries as "self-injury" after observing Haleigh

"usually on a weekly basis."16 Id.

When push came to shove, the MAC rested most of its

conclusion on the strength of the prosecution's evidence. Id.

Even if the excluded medical providers' evidence would have

bolstered Strickland's credibility with the jury about what he

reasonably knew or could have known about Haleigh's abuse, the

evidence would not have been central to the jury's conclusion.

See id. at 144-45. As the MAC detailed, "multiple eyewitness

16Although the MAC did not rely on all of the possible evidence to support its point that the excluded medical providers' evidence was cumulative, we note that the record provides plenty of additional bases to take the MAC's conclusion as reasonable. For example, Strickland testified that a medical provider "was performing body checks on Haleigh weekly because Haleigh was hurting herself" and that this provider "saw [Haleigh] every week to see if there were new injuries, [and] to make sure the old injuries were healing." Strickland then denied abusing Haleigh and expressed his belief that Holli was having Haleigh treated for self-abuse at her almost-weekly doctors' visits. Strickland told the jury that he saw Haleigh stick a spoon down her throat at a hospital. And, in closing, defense counsel noted how Strickland had observed Haleigh "bang her head," "div[e] down the stairs" and how Strickland would ask her and Holli about injuries "he did not know" existed.

- 24 - accounts of [Strickland's] own brutality, and his knowledge and

acceptance of Holli's brutality" show Strickland was "not merely

a duped bystander," no matter what the medical providers' evidence

would have demonstrated. Id. Haleigh's sister J observed

Strickland being at least present when Haleigh was pushed down the

basement stairs on September 10 and Weiss testified Strickland was

"present when . . . Holli hit Haleigh in the lower leg with an

aluminum bat with Haleigh's name on it." Id. Weiss also

remembered Holli explaining, with Strickland in the room, how she

"was using Haleigh's bat because it would look like Haleigh was

hitting herself" and how she repeatedly hit the same area so new

bruises would not show up. Id. Moreover, Weiss "recounted

[Strickland] striking the back of Haleigh's hands with a 'tubular

wand' made out of plastic," while other witnesses recalled

Strickland committing other acts of violence against Haleigh,

including dragging her by the ear and subsequently punishing her

for trying to buy ice cream. Id. The MAC's point was that the

excluded evidence would not likely have altered the jury's

conclusion that Strickland directly took part in some of the abuse

(counts 3 (bat), 5 (tubular wand), and 6 (general abuse)) while

recklessly or wantonly permitting other forms of it (count 2 (the

abuse before the September 10 head injury)).17

17 The MAC stated that Strickland did not raise this challenge in state court concerning count 1, which focused on the assault

- 25 - Recall, we look to see if the MAC's application of the

test was unreasonable and we owe the MAC deference. See Richter,

562 U.S. at 101; Dorsica, 941 F.3d at 20 (citing Woodall, 572 U.S.

at 419) The MAC found all of the other evidence would have made

any presumed constitutional error harmless beyond a reasonable

doubt because the excluded evidence would not have changed the

guilty verdict. Strickland, 23 N.E.3d at 144. Given the abundance

of other evidence against Strickland and the admission of evidence

regarding Haleigh's self-abuse, a fairminded jurist could

reasonably agree that the disallowed medical evidence was

"marginally relevant" to Strickland's case, and thus, its

exclusion, even if error, was harmless beyond a reasonable doubt.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1983); see also Ayala,

576 U.S. at 268 (describing the harmlessness test on direct appeal,

and battery resulting in Haleigh's traumatic head injury, because the medical providers "never treated Haleigh for the head injury" (so they would have nothing to offer regarding it) "and the defense did not pursue a theory at trial that the head injury was the product of self-abuse." Strickland, 23 N.E.3d at 142. However, Strickland's opening brief with us challenges the exclusion of the evidence as to all counts, and his petition for a writ of habeas corpus in the district court also did not distinguish between the counts. Even assuming we would not give deference to the MAC regarding this portion of Strickland's petition, thus reviewing de novo, cf. Wiggins v. Smith, 539 U.S. 510, 534, (2003) (no deference when state court does not reach prong of analysis), Strickland's petition on count 1 fails for the same reasons as the MAC determined for the other counts: Strickland cannot show the trial court's presumed error caused him any prejudice, especially because he did not present a defense of self-abuse as to count 1 at trial. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).

- 26 - as occurred at the MAC (citing Chapman, 386 U.S. at 24)). We

accordingly cannot say the MAC unreasonably applied the

harmlessness test in this manner.18 See Dorsica, 941 F.3d at 19-

20.

III. Ineffective Assistance of Counsel

Strickland next alleges his trial counsel was

constitutionally deficient for not consulting or calling a child

18 Strickland's brief focused heavily on comparing his case to United States v. Shay, 57 F.3d 126 (1st Cir. 1995), so we pause to point out why the comparison is inapt. In Shay, a defendant had made a number of inculpatory statements regarding a car bomb that killed a police officer and he hoped psychiatrists would testify to his Munchausen Syndrome (the disease drove him to seek attention through exaggerated and grandiose statements). Id. at 129, 133. Whereas the trial court concluded the jury could weigh the reliability of the defendant's statements on its own without any specialized testimony and therefore prohibited the specialists' testimony pursuant to Federal Rule of Evidence 702, we determined the jury "plainly was unqualified" to make such an assessment without information from experts about the defendant's possible mental disorders that could have "explode[d] common myths about evidence vital to the government's case." Id. We remanded for the trial court to determine if the evidence was excludible on other grounds. Id. at 134. Although recognizing Shay dealt with a rule of evidence and not a constitutional right to present a defense (let alone an AEDPA appeal), Strickland implores us to examine his case through the "lens" of Shay because he thinks the MSBP evidence was similarly "vital" to his case, in part because the government "repeatedly push[ed] for the witnesses' exclusion" before arguing in closing "that Strickland's defense . . . was pure fiction." But Shay does nothing for our AEDPA review because, for the reasons stated above, we conclude the MAC reasonably determined the exclusion of the MSBP evidence was constitutionally harmless. Cf. United States v. Pires, 642 F.3d 1, 12 (1st Cir. 2011) (distinguishing Shay, despite similar exclusion of expert evidence, because of the differing rules of evidence at issue, and because the proffered expert evidence was at best "peripheral" to the question of guilt).

- 27 - abuse expert who could testify to the effects of MSBP upon fathers

like Strickland. As previewed earlier, due to AEDPA that means we

must assess whether the MAC unreasonably applied the clearly

established federal standard for examining ineffective assistance

of counsel outlined by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). See Wiggins, 539 U.S. at 527-

28; Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (describing how

there is no doubt Strickland is settled law for the purposes of

habeas review). To tell you why the MAC did not do so, we first

explain some background about the claim, then detail the MAC's

decision, outline the Strickland standard, and finally apply the

AEDPA standard of review.

A. Expert Testimony on MSBP

In the civil lawsuit brought by Haleigh's legal guardian

against the medical providers, experts Dr. Chabon and social worker

Wechsler testified that Holli presented a textbook case of MSBP,

which enabled her to convince the medical providers Haleigh was

self-abusive. As outlined by Dr. Chabon, MSBP usually involves a

mother "who systematically fabricates information about the

children's health and/or intentionally makes the child gravely

ill." Not only that, but "[t]he family constellation typically

includes fathers who are 'away at work' a great deal and are

completely oblivious and are uninvolved in the process that

involves numerous office visits and hospitalizations of their own

- 28 - children." Social worker Wechsler also clarified that a mother

with MSBP can trick "both lay persons and professionals."

Relying upon language within these reports, Strickland

(in a familiar manner) asserted in the MAC that this expert

evidence could have enhanced the credibility of his testimony by

explaining "how Strickland could be truly ignorant of the

unbelievably horrible acts."19 Strickland took the expert reports

as license to allege that his trial counsel was ineffective for

failing to obtain an expert on MSBP and child abuse.

B. The MAC's Decision

The MAC disagreed, largely "[b]ecause the proffered

evidence was prepared in relation to defending" medical providers

and the evidence "failed to address" Strickland's claims that Holli

similarly deceived him. Strickland, 23 N.E.3d at 150. The experts

in the civil suit, the court went on, did not consider "his role

in the abuse." Id. As discussed for the excluded medical

providers' evidence, the experts, at least based on the reports

filed, would not have been able to speak to whether Strickland

partook in the abuse because there was no expert "evidence that

Holli's deception extended beyond her public presentation to the

19 In a sidebar at trial regarding the excluded medical providers' evidence, Strickland's counsel raised a similar point, albeit without discussing MSBP: "On first blush, it would be easy for everybody just to say how could [Strickland] be in this home; how could he not . . . protect her."

- 29 - [medical providers]" and into the home. Id. The MAC thereafter

concluded Strickland's trial "counsel's behavior [did not fall]

below that of an ordinary fallible lawyer and [did not] likely

deprive [Strickland] of an otherwise available, substantial ground

of defense" by not calling a child abuse expert or putting on MSBP

evidence.20 Id.

C. The Strickland Standard with AEDPA Review

Whether the MAC applied Strickland unreasonably is a

question "different from asking whether defense counsel's

performance fell below Strickland's standard." Richter, 562 U.S.

at 101. But, as a foundation for our discussion, we lay out the

substantive standard. To prove ineffective assistance of counsel

pursuant to Strickland, the petitioner has to get through two

hurdles. First, Strickland must show counsel performed

"deficient[ly]" such that "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment" (more on this in a bit).

Strickland, 466 U.S. at 687; Companonio, 672 F.3d at 110. Second,

Strickland has to demonstrate "that the deficient performance

prejudiced the defense" because the "counsel's errors were so

20 As a reminder, the Massachusetts test for ineffective assistance of counsel is at least as protective as the federal standard of Strickland, such that we can say the MAC applied clearly established federal law for the purposes of AEDPA review. See note 14, supra.

- 30 - serious as to deprive the defendant of a fair trial." Strickland,

466 U.S. at 687; Companonio, 672 F.3d at 110.

This is where the AEDPA standard of review once again

makes it even harder for Strickland to prevail. The Supreme Court

has defined Strickland standing alone as not an "easy task" for

defendants to cross-off. Richter, 562 U.S. at 105. Therefore,

"[e]stablishing that a state court[] appli[ed] Strickland . . .

unreasonabl[y] under [AEDPA] is [even] more difficult." Id.; see

also Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011). As the

Supreme Court has reminded us, "[t]he standards created by

Strickland and [AEDPA] are both 'highly deferential,' and when the

two apply in tandem, review is 'doubly'" deferential. Richter,

562 U.S. at 105 (citations omitted) (first quoting Strickland, 466

U.S. at 689 and then Knowles v. Mirzayance, 556 U.S. 111, 123

(2009)). In sum, "[t]he question 'is not whether a federal court

believes the state court's determination' under the Strickland

standard 'was incorrect but whether that determination was

unreasonable -- a substantially higher threshold.'" Knowles, 556

U.S. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 478

(2007)).

D. Reasonable Application of Strickland

Strickland more or less repeats the arguments from his

motion for a new trial, contending -- in ways similar to his

averments about the excluded evidence -- that his trial counsel

- 31 - was ineffective because: (1) a child abuse expert could have

informed the jury that Holli suffered from MSBP, which led her to

abuse Haleigh and to deceive others (including Strickland) about

the abuse; (2) doctors often miss an MSBP diagnosis; and, perhaps

most importantly, (3) fathers in MSBP families "are typically

ignorant of what is really happening to the abused child." All of

this evidence could, as we have heard from Strickland already,

demonstrate how his ignorance was reasonable and provide the jury

with corroborative evidence to bolster his testimony. Because the

evidence would have been helpful and because trial counsel did not

research or discuss MSBP or "consult[] with a child abuse expert

of any kind," despite being aware of and having some discovery

from the civil suit which produced the expert opinions on MSBP,

Strickland portends his trial counsel neither made a "complete

investigation" nor "made reasonable professional judgments."

Without any investigation, Strickland alleges his trial counsel

could have "made no affirmative decision to pursue a defense or

strategy" to which we should grant deference.

What Strickland fails to do is to overcome our doubly

deferential review by explaining how the MAC unreasonably applied

Strickland when concluding trial counsel met the mark. Richter,

562 U.S. at 105. Because the MAC concluded Strickland's trial

counsel was not constitutionally deficient (the first ineffective

- 32 - assistance of counsel prong), we will start there. See Strickland,

23 N.E.3d at 150.

To resolve whether trial counsel was constitutionally

deficient, the Supreme Court instructs courts that "strategic

choices made [by trial counsel] after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable." Strickland, 466 U.S. at 690. Even "strategic

choices made after less than complete investigation" are often

"reasonable" so long as counsel made a "reasonable decision that

makes . . . investigations [into that topic] unnecessary." Id. at

690-91. Regarding hiring experts, the Supreme Court has noted

that "[r]are are the situations" where courts will find counsel

ineffective for making "tactical decisions" about hiring or even

"for failing to consult or rely on experts." Richter, 562 U.S. at

106. Decisions about "whether to call a particular witness [are]

almost always strategic," thus requiring our deference, Hensley,

755 F.3d at 737 (quoting Horton v. Allen, 370 F.3d 75, 86 (1st

Cir. 2004)), because "[a]n attorney need not pursue an

investigation that would be fruitless," Richter, 562 U.S. at 108.

As summarized earlier, the MAC reasoned that expert

reports prepared to demonstrate how Holli deceived health care

workers would not also provide evidence that she similarly deceived

Strickland. Strickland, 23 N.E.3d at 150. In fact, as the MAC

addressed, Dr. Chabon's report pointed out how mothers can act

- 33 - "dramatic[ally]" different in "public" than they would at home

where the abuse is not always hidden. Id. at 149.

The MAC also outlined how "trial defense counsel had

informed appellate counsel that he had considered MSBP at the time

of trial and concluded it was not relevant" to a defense trying to

pin the blame on Holli.21 Id. at 150. Far from having ignored

evidence about MSBP, then, trial counsel strategically decided

against putting forward evidence of Holli's MSBP after

establishing, in the MAC's words, it would not have "been [of much]

relevan[ce] in assessing [Strickland's] role in the abuse." Id.

The evidence "would not have exculpated [Strickland] as it does

not directly contradict the eyewitness testimony that the

defendant was present and partook in the violent acts against

Haleigh."22 Id.

21 Remember AEDPA requires that we presume such factual findings to be correct. See Kirwan v. Spencer, 631 F.3d 582, 584 n.1 (1st Cir. 2011) (citing 28 U.S.C. § 2254(e)(1)). 22 The MAC references the expert report on MSBP which notes that the "family constellation typically includes fathers who are 'away at work' a great deal and are completely oblivious." Strickland, 23 N.E.3d at 149. But in concluding Strickland's counsel was not ineffective, the MAC did not directly rely on this portion of the report. We note that the record provides additional support for why Strickland's counsel may have felt an MSBP expert would not have helped. It is not obvious Strickland qualifies as one of those "oblivious" or absentee fathers susceptible to deception by cases of MSBP. The expert reports provide no hint that child abuse experts would have testified to Strickland qualifying as such a father or that the jury would have believed as much (he worked a nine-to-five, but, by his own testimony, Strickland was a present and active father who loved Haleigh).

- 34 - Where the MAC has determined that there was a reasonable

explanation for trial counsel's reasonable strategic decisions

about whether to consult or to call a specific witness, and where

Strickland has not provided any concrete assertions why the MSBP

evidence would have aided his defense, we cannot say the MAC

unreasonably applied the Strickland ineffective assistance of

counsel standard. See Richter, 562 U.S. at 105. This is certainly

not one of those rare cases where we would consider trial counsel's

choice not to call an expert to be constitutionally deficient.

See id. And, remember, we must give double deference to the MAC's

choices about ineffective assistance of counsel claims, especially

when "'fairminded jurists could [not] disagree on [the]

correctness'" of the MAC's application of federal law. Ayala, 576

U.S. at 269 (quoting Richter, 562 U.S. at 101 (second alteration

in original)).

Conclusion

The district court's dismissal of the habeas petition

is affirmed.

- 35 -