United States Court of Appeals For the First Circuit

No. 20-1099

FRANCIS LANG,

Petitioner, Appellant,

v.

DOUGLAS DeMOURA, Superintendent, MCI Cedar Junction,

Respondent, Appellee.

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

[Hon. Patti B. Saris, U.S. District Judge]

Before

Kayatta, Selya, and Barron, Circuit Judges.

Ruth Greenberg for appellant. Maria Granik, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, and Thomas E. Bocian, Assistant Attorney General, were on brief, for appellee.

September 30, 2021 KAYATTA, Circuit Judge. Francis Lang seeks a writ of

habeas corpus, pursuant to

, to vacate his

Massachusetts conviction for murder in the first degree. Lang

contends that his trial counsel's failure to investigate Lang's

mental health history constituted ineffective assistance of

counsel. The Massachusetts Supreme Judicial Court denied relief,

rejecting both Lang's direct appeal and his appeal of the Superior

Court's denial of a post-trial motion for a new trial on grounds

that Lang had ineffective counsel and that his right to a public

trial was violated. Commonwealth v. Lang,

(Mass. 2015). Lang then presented an ineffective assistance of

counsel claim in a federal habeas petition, which the district

court denied. Lang v. Superintendent, MCI-Cedar Junction, No. 16-

11898-PBS,

(D. Mass. Jan. 6, 2020). For the reasons

that follow, we affirm the district court's denial of Lang's

petition.

I.

A.

Over time, Lang has been diagnosed with a variety of

psychiatric disorders, including attention deficit hyperactivity,

learning disabilities, anxiety, opposition-defiant disorder,

bipolar disorder, and frontal network dysfunction. Medical

providers prescribed numerous medications for his bipolar

disorder, anxiety, and a seizure disorder. Neuropsychological

- 2 - testing shows Lang has impulse control in the "bottom one percent

of the bottom one percent of the population."

In early 2005, Lang was released from federal prison,

where he had been serving time for unlawful possession of

ammunition as a felon. He did not take his medications with him

from the prison, nor did he replace them. Twenty-two days later,

Lang entered a bar from which he had been banned several years

before. Recognizing Lang, the bartender refused to serve him.

Lang grew upset and began yelling. A waitress, her boyfriend, and

Richard Dever, a Suffolk County Deputy Sheriff, approached Lang.

He apologized to the waitress. Someone asked Lang to leave. As

Lang began to leave, he threw a beer can, which smashed a glass

object at the bar.

Although accounts varied as to what occurred next, there

was evidence that a scuffle ensued, involving at least Lang and

Dever in a small foyer at the entrance of the bar. One trial

witness testified that Dever threw punches at Lang. The fight

moved to the sidewalk in front of the bar, where Lang and Dever

exchanged punches. Lang took out a pocketknife and stabbed Dever

several times, asking "[h]ow do you like that, motherfucker?" and

"[h]ow's your motherfucking pretty face now?" Lang left the area,

but returned a few minutes later, yelling and looking for his

glasses. He then departed and did not return. Several hours

- 3 - later, the police found him hiding in a basement apartment in a

nearby home and arrested him.

Dever died as a result of multiple stab wounds, including

three stab wounds to the left side of his chest (one of which

perforated his heart) and one stab wound under his arm. He also

had three incised wounds on his face, one of which exposed bone.

State prosecutors charged Lang with murder in the first degree.

Lang did not testify at trial. He called one eyewitness

-- a patron at the bar -- who testified that, before the stabbing,

Lang was attacked by four people. Trial counsel argued that Lang

had acted in self-defense; in the alternative, trial counsel

asserted that Lang's inebriation rendered his killing of Dever

"nothing more than voluntary manslaughter." Although Lang

mentioned his psychiatric history to trial counsel, the

explanation of events Lang gave trial counsel focused on self-

defense. Trial counsel did not review Lang's psychiatric history,

consult with a mental health expert, or discuss with Lang the

possibility of a defense of lack of criminal responsibility.

Although trial counsel was familiar with mental health defenses

and had utilized those defenses previously on behalf of other

clients, he believed that such a defense "was rarely successful

and should be raised only as a last resort where no other viable

defenses exist." Lang,

(Hines, J., concurring).

In short, he did not investigate the possibility that such a

- 4 - defense might be supported because he regarded it as unhelpful or

worse, even if it could be supported. In particular, he regarded

any argument predicated on Lang's mental health as undercutting a

quite plausible defense of self-defense. Ultimately, however, the

claim of self-defense failed; Lang was convicted of first-degree

murder on a theory of extreme atrocity or cruelty. Lang,

, at *1.

B.

In a motion for a new trial, Lang argued that trial

counsel was ineffective in failing to investigate his mental health

history; consequently, he argues, Lang was deprived of (among other

things) the ability to make an informed decision regarding whether

to pursue a defense of lack of criminal responsibility, as well

as the potential use of that information to mitigate a verdict.

See Brief for Petitioner at 8, 11–13, Commonwealth v. Lang,

(Mass. 2015) (SJC-10405), 2014 MA S. CT. BRIEFS LEXIS

1930. After an evidentiary hearing, the trial court denied Lang's

motion. Lang,

. The trial court judge concluded

that trial counsel ably represented Lang, that insanity verdicts

are rare, and that "presenting a defense of lack of criminal

responsibility would have undermined or been inconsistent with [a

theory of] self-defense and would not have accomplished anything

material for the defendant."

at 271–72 (Hines, J.,

concurring).

- 5 - Lang thereafter pursued and exhausted all avenues for

reviewing that decision and his conviction. With some partial

success in the form of a finding that trial counsel should have

investigated Lang's mental health,

(Hines, J.,

concurring);

(Lenk, J., concurring), Lang failed to

obtain any relief because the Supreme Judicial Court (SJC) of

Massachusetts found that he would have refused to pursue a defense

based on a lack of criminal responsibility,

;

(Lenk, J., concurring). The SJC did not explicitly address trial

counsel's failure to raise mental impairment as a mitigation

defense, but the justices did agree that, "after review of the

entire record," there was "no other basis for granting the

defendant relief."

.

C.

Lang next challenged his conviction through a federal

habeas action under

. The district court denied

Lang's petition for habeas relief. Lang,

, at *2.

"Assuming without deciding that [defense] counsel's failure to

investigate constitute[d] deficient performance," the district

court concluded it was reasonable for the SJC to decide that the

result of the trial would not have been different absent counsel's

error and that the SJC's decision passed muster under the

- 6 - deferential standard of review imposed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).

at 1–3.

II.

In this appeal, Lang's claim begins with the assertion

that trial counsel provided constitutionally ineffective

assistance by failing to investigate Lang's mental capacities.

The standard for such federal claims was set by Strickland v.

Washington,

(1984). Under Strickland, a defendant

need prove both that counsel's performance was ineffective and

that the ineffective assistance caused prejudice.

("[A]ctual ineffectiveness claims alleging a deficiency in

attorney performance are subject to a general requirement that the

defendant affirmatively prove prejudice."). In order to show

prejudice, a petitioner must "show that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Porter v.

McCollum,

, 38–39 (2009) (per curiam) (quoting

Strickland,

). This is a heavy burden. See

Strickland,

; Knight v. Spencer,

(1st Cir. 2006) (noting that Strickland imposes "a 'highly

demanding' and 'heavy burden'" (quoting Williams v. Taylor,

(2000))). Although a petitioner "need not show 'that

counsel's deficient conduct more likely than not altered the

outcome' of [the] proceeding, he must establish 'a probability

- 7 - sufficient to undermine confidence in [the] outcome.'" Tevlin v.

Spencer,

(1st Cir. 2010) (quoting Porter,

).

In this case, the SJC agreed with Lang that, at least

under Massachusetts law, trial counsel's failure even to consider

an investigation constituted ineffective assistance. Lang,

(Hines, J., concurring). Whether that failure also

constituted the degree of neglect sufficient to be deemed

ineffective assistance under federal law, we need not decide.

Rather, we turn our attention to the question of prejudice. Lang

asserts two theories of prejudice: (1) Had counsel duly

investigated Lang's mental health, counsel would have presented a

defense known in Massachusetts as a lack of criminal

responsibility, more customarily known as an insanity defense; and

(2) had counsel duly investigated Lang's mental health, counsel

would have used that history "to mitigate a verdict of cruelty and

atrocity to murder in the second degree, to mitigate murder to

manslaughter, or to offer alternative explanation of [Lang's]

flight other than consciousness of guilt." We address each theory

in turn.

A.

As to the first theory of prejudice, the SJC adjudicated

the issue on the merits and found it lacking. The three-justice

majority concluded that counsel's failure to investigate "did not

- 8 - create a substantial likelihood of a miscarriage of justice because

the defendant 'offered no evidence indicating that he would have

agreed to present a lack of criminal responsibility defense at the

time of the original trial, and has clearly asserted that he would

not present the defense at a new trial,'" which "'prevents him

from establishing prejudice as a result of counsel's failure to

investigate such a defense.'"

at 265 (quoting Lang,

(Lenk, J., concurring)).1 AEDPA allows us to reject this

finding only if it was "contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States," or "was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding."

(d).

In denying Lang's petition for a new trial, both SJC

opinions credited record evidence that Lang was not interested in

pursuing a mental health defense at any point in time. Lang,

, 275 n.19 (Hines, J., concurring);

(Lenk, J., concurring). This included statements Lang made after

trial that he was not interested in pursuing a mental-health-based

1 The other two justices concluded that "the failure to investigate did not create a substantial likelihood of a miscarriage of justice in the circumstances of this case because, 'even assuming the availability of a viable lack of criminal responsibility defense, counsel's strategic choice to defend the case solely on a self-defense theory was not manifestly unreasonable.'" Lang,

(quoting Lang,

(Hines, J., concurring)).

- 9 - defense that, if successful, would likely have sent him to

Bridgewater, a facility that Lang describes as "the state hospital

at which defendants who are found not guilty by reason of insanity

may be confined." The two-justice SJC concurrence additionally

stated that "the defendant expressed no wish or choice on the

subject of presenting or forgoing a lack of criminal responsibility

defense, and did not attempt to make any decision on the matter."

Lang,

(Hines, J., concurring).

Lang argues that he had no authority to instruct trial

counsel as to whether to assert a lack of criminal responsibility.

But under Massachusetts law, "the decision to present a lack of

criminal responsibility defense lies solely with [Lang]."

Commonwealth v. Lang,

(citing Commonwealth v.

Federici,

, 114–15 (Mass. 1998)). And relevant

federal precedent establishes that counsel may not put on a defense

of not guilty by reason of lack of criminal responsibility when a

defendant has chosen a defense of actual innocence.2 See McCoy

v. Louisiana,

, 1507–12 (2018); see also Schriro v.

Landrigan,

(2007) ("[I]t was not objectively

unreasonable for th[e state] court to conclude that a defendant

who refused to allow the presentation of any mitigating evidence

2 In Massachusetts, a theory of self-defense is considered an assertion of factual innocence. Commonwealth v. Williams,

, 1177–78 (Mass. 2019).

- 10 - could not establish Strickland prejudice based on his counsel's

failure to investigate further possible mitigating evidence.").

In any event, we need only hold, under AEDPA, that the SJC would

hardly have behaved unreasonably in concluding that, given Lang's

position, there was no reasonable probability that his trial

counsel would have pursued such a defense against his wishes.

Lang further contends that it was error for the state

courts to have considered whether he would have raised such a

mental health defense at a new trial, because such an affirmation

of future trial strategy is not required under Strickland. But

the SJC did not mandate that Lang tell the court what he will do

in the future. Rather, the SJC permissibly and fairly inferred

from the various statements Lang made that he would not have

proceeded with a mental health defense, even if trial counsel had

investigated his mental health record. Such a finding runs

contrary to no clearly established federal law, involves no

unreasonable application of clearly established federal law, and

is not based on an unreasonable determination of the facts. See

(d). Accordingly, we must defer to it.

B.

That leaves Lang's second theory of prejudice -- that

had counsel investigated properly he would have used evidence of

Lang's mental health with the jury to seek some degree of

mitigation. Whether the SJC rejected this claim on the merits is

- 11 - less clear. The SJC made no mention of the claim. On the other

hand, it said that "after review of the entire record pursuant to

G.L. c.278, § 33E, the Justices agree unanimously that there is no

other basis for granting the defendant relief." Lang,

. Under AEDPA, a broad statement of this sort is ordinarily

enough. See Harrington v. Richter,

("When a

federal claim has been presented to a state court and the state

court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.").

We need not resort in this instance to relying on AEDPA's

deferential review to adjudicate Lang's second theory of

prejudice. After going through the record, we are convinced that,

had counsel been fully informed about Lang's mental health, counsel

would have eschewed (and reasonably so) using that history in an

attempt to obtain mitigation.

Trial counsel explained that as a matter of strategy, he

would not have used the evidence of Lang's mental history, even

had he been aware of it. Lang suggests that we should not consider

counsel's explanation of what he would have done had he

investigated, because his failure to investigate alone proves

ineffective assistance of counsel. But because the failure to

investigate constitutes the alleged dereliction by counsel, we are

required to consider what would have happened but for that

- 12 - dereliction. And if it turns out that the investigation would not

have led to any information that counsel would have used at trial,

then his dereliction can hardly have caused prejudice.

Counsel -- and the trial court -- cogently explained why

the evidence would not likely have helped Lang and how it could

have distracted from or even undercut a decent claim of self-

defense. Commonwealth v. Lang, No. 05-10311 (Mass. Super. Apr. 20,

2012), aff'd

(Mass. 2015). Massachusetts precedent,

established before Lang's trial, recognized that "[a]lthough a

mental health defense and self-defense would not necessarily have

been irreconcilable," in at least some cases, a mental health

defense "likely would have had an adverse impact on the claim of

self-defense." Commonwealth v. Walker,

(Mass.

2005). The Superior Court concluded that "[t]o contend . . . that

[Lang] was mentally ill and driven by uncontrollable impulses would

likely have been fatally inconsistent with the state[-]of[-]mind

requirements for self[-]defense," which include "that [the]

defendant would have had to actually and reasonably believe that

he was in imminent danger of serious bodily harm or death from

which he could only save himself by the use of deadly force."

Lang, No. 05-10311 (Mass. Super. Apr. 20, 2012), aff'd

(Mass. 2015).

Lang suggests that trial counsel's claim that he would

not have used Lang's mental health history had he been aware of it

- 13 - is inconsistent with counsel's decision to submit at trial evidence

of alcohol consumption by Lang on the night in question. But

suggesting that Lang's perception and judgment were possibly

clouded by alcohol on that particular night is hardly the same as

suggesting that Lang is chronically lacking in impulse control.

Lang had a pretty strong argument for jurors to find he acted in

self-defense. Jurors who might accept that defense by finding

that he was pushed beyond the limits of reasonable restraint before

using force on the victim might instead decide, based on his mental

health history as manifest in criminal conduct and recent

imprisonment, that he was prone to strike violently without

reasonable provocation, and best not be put back on the streets.

In short, as defense counsel explained, the mental health history

could have both distracted from and undermined the principal

defense, such that there remained no reasonable probability that

counsel would try to use it.

Lang also argues that an understanding of his mental

health conditions would provide an alternative explanation for his

flight after the altercation -- one other than "consciousness of

guilt." But given that his flight was entirely consistent with

his defense that fear of harm reasonably caused him to strike in

self-defense, we see no reasonable probability that Lang's

alternative explanation for his flight would have changed the

result.

- 14 - For the foregoing reasons, we find that Lang has failed

to establish a reasonable probability that trial counsel would

have used the evidence of Lang's mental health had counsel been

aware of it. Hence, the failure to investigate caused Lang no

prejudice.

III.

The decision of the district court denying Lang's

petition for a writ of habeas corpus is affirmed.

- 15 -