Joseph M. Garuti v. Gary Roden

United States Court of Appeals
For the First Circuit
No. 12-2481
JOSEPH M. GARUTI,
Petitioner, Appellant,
v.
GARY RODEN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Torruella, Dyk, * and Thompson,
Circuit Judges.
Stephen Paul Maidman for petitioner-appellant.
Jennifer L. Sullivan, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief,
for respondent-appellee.
October 23, 2013
*Of the Federal Circuit, sitting by designation.

-- 1 of 22 --

DYK, Circuit Judge. In this habeas appeal, petitioner
Joseph M. Garuti argues that the district court erred in dismissing
his petition without an evidentiary hearing. Garuti argues that,
inter alia, he was entitled to a hearing on his Sixth Amendment
ineffective assistance of counsel claims under Strickland v.
Washington, 466 U.S. 668 (1984). Because Garuti cannot demonstrate
that he has raised a substantial issue that would require
additional factual development, we affirm.
I
On March 14, 2006, Garuti was convicted in Massachusetts
Superior Court of first degree murder by reason of extreme atrocity
or cruelty. Garuti was charged with striking and killing his ex-
wife by running her over with an automobile while picking up his
two young children from her home. After striking his ex-wife with
the automobile, Garuti, a registered nurse, refused to render any
assistance. Garuti’s defense was that the death was an accident.
On the advice of trial counsel, Garuti did not testify on his own
behalf at trial.
After Garuti’s conviction, Garuti, now represented by new
counsel, raised the claims now asserted in his habeas petition, in
a motion for a new trial in the Massachusetts trial court. In this
motion, Garuti argued that he was denied his right to effective
-2-

-- 2 of 22 --

assistance of counsel under the Sixth Amendment, 1 and that he was
prejudiced by his attorney’s deficient representation. Garuti also
argued that, because of counsel’s allegedly deficient performance,
he did not knowingly and intelligently waive his right to testify
on his own behalf. Garuti relied on his own 36-page affidavit
reciting various facts pertinent to his trial counsel’s
performance. Garuti sought to obtain an additional affidavit from
his trial counsel in support of his motion, furnishing trial
counsel with a draft affidavit. Trial counsel sent Garuti’s
appellate counsel a letter stating that he had refused to sign the
draft because it was “inaccurate,” without specifying the claimed
inaccuracies.
On the same day that Garuti filed his new trial motion,
Garuti also moved for an evidentiary hearing in state court in
order to more fully develop the record on his ineffective
assistance claim (by, for example, obtaining testimony from trial
counsel). Garuti argued that he was entitled to an evidentiary
hearing because his own affidavit raised serious questions of fact
1 Garuti argued primarily that his trial counsel’s
performance was deficient because: (1) trial counsel did not
consult with Garuti adequately; (2) trial counsel failed to
properly prepare Garuti to testify at trial; (3) trial counsel did
not properly advise Garuti of the strategic implications of failing
to testify in his own defense; (4) trial counsel did not properly
cross-examine two Massachusetts state troopers who interrogated
Garuti; and (5) trial counsel failed to provide Garuti with an
affidavit in support of his motion for a new trial (i.e., an
affidavit outlining trial counsel’s views as to his own
performance).
-3-

-- 3 of 22 --

regarding his ineffective assistance claims. The Commonwealth
argued that no evidentiary hearing was required because Garuti’s
sworn affidavit was conclusory and self-serving.
On May 12, 2008, the Superior Court denied both the new
trial motion and the motion for an evidentiary hearing, ruling that
“the defendant’s motion for a new trial is hereby denied without a
hearing.” S.A. 196 (emphasis removed). The court was
“unpersuaded” by Garuti’s ineffective assistance argument, and
noted that it would not “credit the defendant’s self-serving
contentions.” S.A. 195. The trial court also relied on trial
counsel’s statement to Garuti’s appellate counsel that he would not
sign the proposed affidavit because it was “inaccurate.” S.A. 195.
Though trial counsel had not furnished an affidavit, the trial
judge concluded that “it is pure speculation that such an affidavit
would be helpful to [Garuti’s] cause.” S.A. 195.
On May 21, 2008, Garuti appealed to the Massachusetts
Supreme Judicial Court. On June 10, 2009, the Supreme Judicial
Court affirmed. See Commonwealth v. Garuti, 907 N.E.2d 221 (Mass.
2009) (“SJC Decision”). The Supreme Judicial Court concluded that
“there was no . . . ineffective assistance of counsel that would
require a new trial,” id. at 230, and that therefore “[the trial
judge] was warranted in not granting [Garuti’s] motion for an
evidentiary hearing on the motion.” Id. at 232. Based on a
colloquy Garuti had in open court with the trial judge, the Supreme
-4-

-- 4 of 22 --

Judicial Court had held that “the record supports the [trial]
judge’s conclusion that the defendant’s waiver of his right to
testify was knowing and intelligent.” Id.
On August 27, 2010, pursuant to 28 U.S.C. § 2254, Garuti
filed his habeas petition in the district court. The petition
reiterated Garuti’s ineffective assistance claims and argued that
the state court’s denial of an evidentiary hearing on these claims
was a violation of due process. The petition also raised another
constitutional due process claim alleging that Garuti did not
“knowingly and intelligently” waive his right to testify at his
trial. After filing the petition, Garuti moved for an evidentiary
hearing in the district court. The magistrate judge denied the
motion for an evidentiary hearing, reasoning that the merits of
Garuti’s § 2254 habeas claim had been reasonably addressed by the
Supreme Judicial Court on the record before it and that, as a
result, Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398
(2011), barred such a hearing. Garuti v. Roden, No. 10-11473-RGS,
2012 WL 381045, at *1 (D. Mass. Feb. 3, 2012).
Subsequently, on August 24, 2012, the magistrate judge
issued a report and recommendation advising the district judge to
dismiss the habeas petition. See Garuti v. Roden, No. 10-11473-
FDS, 2012 WL 5866252 (D. Mass. Aug. 24, 2012) (“Report and
Recommendation”). In recommending that the petition be dismissed,
the magistrate judge reiterated that the evidence in the record
-5-

-- 5 of 22 --

“provide[d] a constitutionally sufficient basis for the trial court
to rule on the motion for a new trial without an evidentiary
hearing and for the Supreme Judicial Court to affirm that ruling.”
Id. at *20.
On November 16, 2012, the district court adopted the
magistrate judge’s report and recommendation, dismissing the
petition and holding that the state court record was sufficient to
resolve the case. See Garuti v. Roden, No. 10-11473-FDS, 2012 WL
5866248 (D. Mass. Nov. 16, 2012) (“District Court Order”). The
district court issued the certificate of appealability required by
28 U.S.C. § 2253(c), and Garuti timely appealed to this court.
II
On appeal, Garuti argues that the district court should
have granted him an evidentiary hearing. He urges that the Supreme
Judicial Court’s decisions were based on an incomplete record and
that the rejections of his Sixth Amendment ineffective assistance
and Fourteenth Amendment due process claims were therefore based on
objectively unreasonable determinations of the facts under
§ 2254(d)(2) and unreasonable applications of Supreme Court case
law under § 2254(d)(1).
We review the district court’s denial of habeas relief
with respect to the claims raised in state court de novo. Lynch v.
Ficco, 438 F.3d 35, 44 (1st Cir. 2006) (citing Ellsworth v.
Warden, 333 F.3d 1, 3 (1st Cir. 2003)). We review the district
-6-

-- 6 of 22 --

court’s refusal to hold an evidentiary hearing for abuse of
discretion. Companio v. O’Brien, 672 F.3d 101, 112 (1st Cir. 2012)
(citing Forsyth v. Spencer, 595 F.3d 81, 85 (1st Cir. 2010)).
A
We first consider the extent to which the Supreme Court’s
decision in Pinholster bars evidentiary hearings under § 2254(d).
That section provides that
[a]n application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim–
(1) 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.
28 U.S.C. § 2254(d). Under this section, habeas corpus relief is
only available if the state court’s conclusion is based upon a
factual determination that is objectively unreasonable in light of
the evidence presented in the state court proceeding. Miller-
El v. Cockrell, 537 U.S. 322, 340 (2003). Garuti argues that the
district court erroneously interpreted Pinholster to categorically
bar hearings in federal habeas proceedings, except in situations
-7-

-- 7 of 22 --

where the state court decision rested exclusively on a finding of
procedural default.
Pinholster makes clear that “review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits.” 131 S. Ct. at 1398. But
Garuti argues that the evidentiary hearing bar applies only to
review under § 2254(d)(1). Subsequent out-of-circuit authority
establishes that it applies under § 2254(d)(2) as well.
See Blue v. Thaler, 665 F.3d 647, 656 n.26 (5th Cir. 2011)
(“[Section] 2254(d)(2) . . . expressly instructs that the state
court’s decision must be evaluated ‘in light of the evidence
presented in the State Court proceeding.’” (quoting 28 U.S.C.
§ 2254(d)(2))). We agree that the evidentiary hearing bar applies
to review under both sections of § 2254(d). This court has noted
specifically that “[r]eview under the ‘fact’ prong [i.e., Section
2254(d)(2)] is limited to the record that was before [the] state
court.” Brown v. O’Brien, 666 F.3d 818, 822 n.3 (1st Cir. 2012). 2
The difficult question in this case relates to the scope
of Pinholster’s bar on evidentiary hearings under both portions of
§ 2254. Garuti first argues that, because the state court held no
evidentiary hearing to resolve contested issues of fact, the claims
2 See also Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir.
2011) (“Importantly, the evidence against which a federal court
measures the reasonableness of the state court’s factual findings
is the record evidence at the time of the state court’s
adjudication.” (internal citation omitted)).
-8-

-- 8 of 22 --

at issue here were not “adjudicate[d] on the merits,” as § 2254
requires. Garuti urges us to follow cases similar to Winston v.
Kelly, 592 F.3d 535, 555-56 (4th Cir. 2010), which declined to
extend § 2254 deference to a state court judgment ruling that such
deference “would be inappropriate because judgment on a materially
incomplete record is not an adjudication on the merits for the
purpose of § 2254(d).” See also Wilson v. Workman, 577 F.3d 1284,
1293 (10th Cir. 2009) (en banc) (“To dispose of a claim without
considering the facts supporting it is not a decision on the
merits.”); Brown v. Smith, 551 F.3d 424, 428-29 (6th Cir. 2008)
(holding that a petitioner’s “ineffective-assistance-of-counsel
claim ha[d] not been ‘adjudicated on the merits’ because the
counseling notes that form[ed] the basis of the claim were not in
the record before the Michigan Court of Appeals”).
Although these decisions by other courts appear to
support Garuti’s position, a recent decision of our court stands in
Garuti’s way. In Atkins v. Clarke, 642 F.3d 47, 48 (1st Cir.
2011), this court rejected the view that there can be no decision
on the merits within the meaning of § 2254(d) unless there was an
evidentiary hearing. This court held that those cases on which
Garuti relies were essentially overruled by Pinholster. See 642
F.3d at 49. Indeed, Garuti concedes that Atkins “declined to
accept the rationale of the Fourth Circuit in Winston and the Tenth
Circuit in Workman.” Appellant’s Br. 25 n.14.
-9-

-- 9 of 22 --

Moreover, the Supreme Court in Harrington v. Richter, __
U.S. ___, ___, 131 S. Ct. 770, 785 (2011), held, consistent with
Atkins, that “[w]hen 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.” 131 S. Ct. at 784-85 (emphasis added).
After Harrington, the reasoning of Brown and similar
cases on which Garuti relies has been rejected by the Sixth Circuit
itself. Ballinger v. Prelesnik, 709 F.3d 558, 562 (6th Cir. 2013).
Ballinger concluded that, to the extent that pre-Harrington
decisions such as Workman and Brown are “inconsistent with
Harrington’s definition of ‘on the merits,’” such decisions are “no
longer the law.” Id. We are, in any event, bound by Atkins, which
is inconsistent with Garuti’s theory that there can be no decision
on the merits if there has been no evidentiary hearing on disputed
facts.
Garuti alternatively argues that Pinholster does not bar
an evidentiary hearing in district court because the Massachusetts
Court’s refusal to hold an evidentiary hearing violated due
process. The Fifth Circuit has held that due process is violated
where the state court has refused to hold a hearing despite the
existence of a prima facie valid claim. See Smith v. Cain, 708
F.3d 628, 634-35 (5th Cir. 2013); Blue v. Thaler, 665 F.3d 647, 657
-10-

-- 10 of 22 --

(5th Cir. 2011). This holding is based on the principle that the
state court’s denial of the evidentiary hearing in such cases
“run[s] afoul of the Due Process Clause,” which strips the state’s
ruling of § 2254 deference. Blue, 665 F.3d at 657. If the state
court’s refusal to hold an evidentiary hearing was a due process
violation, the theory goes, the district court is required to hold
an evidentiary hearing. The court reasoned in Smith that
“Pinholster’s limitation on federal evidentiary hearings does not
apply once the district court conclude[s], solely on the basis of
the state court record, that the state trial court unreasonably
applied federal law” (e.g., unreasonably violated the Due Process
Clause). 708 F.3d at 635.
This court has not addressed this question, and we need
not resolve the issue here because the factual circumstances that
could trigger an exception to Pinholster’s bar on evidentiary
hearings do not exist in this case. As we discuss below, Garuti
did not present a prima facie valid claim raising a substantial
factual issue that might have required a hearing in the
Massachusetts Superior Court, and hence a hearing in the district
court. Thus, Pinholster and § 2254(d) barred the district court
from granting an evidentiary hearing, even if we were to agree with
the due process theory articulated in the Fifth Circuit cases
described above.
-11-

-- 11 of 22 --

B
In affirming the denial of an evidentiary hearing by the
Massachusetts Superior Court, the Supreme Judicial Court held that
Garuti had not established that substantial factual issues existed.
Garuti contends that this ruling offended basic principles of due
process established in Patterson v. New York, 432 U.S. 197 (1977).
However, Patterson establishes a high bar. It makes clear that
state law evidentiary procedures are “not subject to proscription
under the Due Process Clause unless ‘[they] offend[] some principle
of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.’” 432 U.S. at 201-02 (quoting
Speiser v. Randall, 357 U.S. 513, 523 (1958)). This court has held
that to provide “ground[s] [for] federal habeas relief,” an
improper ruling on an evidentiary issue in state court “must be ‘so
arbitrary and capricious as to constitute an independent due
process . . . violation.’” Coningford v. Rhode Island, 640 F.3d
478, 484 (1st Cir. 2011) (quoting Lewis v. Jeffers, 497 U.S. 764,
780 (1990)).
Here, the state law procedures employed were reasonable
both on their face and as-applied. Massachusetts Rule of Criminal
Procedure 30(c)(3) allows a motion for a new trial to be rejected
“without further hearing if no substantial issue is raised by the
-12-

-- 12 of 22 --

motion or affidavits.” Mass. R. Crim. P. 30(c)(3); see S.A. 194. 3
Garuti provides no argument or analysis suggesting that this
criminal procedure rule itself violates basic principles of due
process.
There was also nothing unconstitutional about the state
court’s application of its own criminal procedure rules in this
case. To be sure, the district court likely erred in relying on
Garuti’s former counsel’s letter and his refusal to sign the
proposed affidavit to support the denial of an evidentiary hearing.
Report and Recommendation, 2012 WL 5866252, at *11 (“Trial
counsel’s description of the contents of the affidavit as
inaccurate thus provides further support for the Supreme Judicial
Court’s and trial court’s factual determination vis-á-vis the
adequacy of petitioner’s consultation with trial counsel about the
right to testify.”). The Federal Rules of Evidence generally apply
in habeas proceedings in district courts, Loliscio v. Goord,
263 F.3d 178, 186 (2d Cir. 2001), and trial counsel’s statements
regarding the inaccuracy of the proposed affidavit in the letter to
appellate counsel are hearsay and do not fall under any recognized
hearsay exception. Therefore, they should not have been considered
by the district court in deciding whether a substantial issue of
3 Though the trial court opinion cites Mass. R. Crim. P.
30(b)(3), it is clear that the trial court intended to cite Rule
30(c)(3), as this is the rule pertaining to affidavits (no Rule
30(b)(3) exists).
-13-

-- 13 of 22 --

fact existed. 4 Fed. R. Evid. 802. However, as we now discuss,
quite apart from his former counsel’s statement, nothing in
Garuti’s own affidavit and the trial record raises a substantial
factual issue or supports granting an evidentiary hearing.
1
In attempting to make out a due process violation, Garuti
first argues that the evidence in the record, along with his
affidavit, raised a substantial Strickland issue that trial
counsel’s consultation with Garuti was inadequate overall. Under
Strickland, the petitioner has the burden to show by a
preponderance of the evidence that “(1) counsel’s performance fell
below an objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel’s error, the result of
the proceedings would have been different.” Smullen v. United
States, 94 F.3d 20, 23 (1st Cir. 1996). In his affidavit, Garuti
averred that he made “numerous efforts” to contact his trial
counsel and that, “[d]espite [his] repeated efforts . . ., the
amount of time [trial counsel] consulted with [him] about the facts
of [his] case was minimal.” S.A. 309. Garuti alleged that he had
two in-person consultations with trial counsel that “were not of
any great duration.” S.A. 310. Garuti also stated that he placed
4 The Judicial Code concerning habeas corpus makes
provisions for the admission of certain evidence such as
affidavits, 28 U.S.C. § 2246, and full transcripts, 28 U.S.C.
§ 2247, but unsworn statements are not made admissible by the
statute.
-14-

-- 14 of 22 --

telephone calls to trial counsel but that “[he] was able to speak
to [trial counsel] briefly on only a few of th[ose] occasions.”
S.A. 310. Finally, Garuti alleged that he wrote many letters to
trial counsel, only received “a few relatively short letters” in
response while he was awaiting trial, and these responsive letters
did not address the facts of the case “in any degree of detail.”
S.A. 310. 5
We find that the allegations in Garuti’s affidavit raise
no substantial issues because they are non-specific in nature and
conclusory. Garuti provides no specific information concerning the
duration of his in-person or telephone conversations with trial
counsel. Garuti also failed to attach any of the letters sent to
or received from counsel (or any other documentary or testimonial
evidence in his possession) to his affidavit. Conclusory
allegations are insufficient to raise a substantial factual issue.
United States v. Southard, 700 F.2d 1, 10 (1st Cir. 1983);
see Mendez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011); see
also Kunkle v. Dretke, 352 F.3d 980, 987 (5th Cir. 2003). This
court rejected such inadequate consultation claims where support
was similarly lacking. See, e.g., McCarthy v. United States,
764 F.2d 28, 31 (1st Cir. 1985) (rejecting claim that counsel
“spent an inadequate amount of time consulting with the petitioner
5 Garuti also averred that trial counsel did not review the
police reports pertaining to the incident with him.
-15-

-- 15 of 22 --

in preparation for [a] sentencing” proceeding). The trial court
record also provides no support for Garuti’s claim of inadequate
consultation. Thus, the inadequate consultation claim provided no
basis for an evidentiary hearing.
2
Garuti next argues that his trial attorney rendered
ineffective assistance because he inadequately consulted with
Garuti regarding Garuti’s version of what happened during his
interrogation with two state troopers that led to Garuti’s
confession, and that, as a result, trial counsel failed to properly
cross-examine them. Garuti’s affidavit recites his version of the
facts surrounding his interrogation with the state troopers.
Although it concludes generally that “[trial counsel] did not
consult with [Garuti] in any significant way regarding the
anticipated testimony of most of the Commonwealth’s witnesses,”
S.A. 311, it does not contain any specific information pertaining
to trial counsel’s consultation or lack thereof regarding his
cross-examinations of the state troopers.
This lack of specific allegations, combined with an
analysis of the trial record, makes clear that Garuti has not
raised a substantial issue. The district court concluded that the
trial transcript showed that “counsel had a firm grasp of the facts
of the case and petitioner’s side of the story” and that “counsel
adequately cross-examined the Commonwealth’s witnesses, including
-16-

-- 16 of 22 --

the state troopers.” District Court Order, 2012 WL 5866248, at *2.
The Supreme Judicial Court analyzed trial counsel’s cross
examination of both troopers and found that counsel impeached their
testimony in various respects. Specifically, the Supreme Judicial
Court explained that trial counsel elicited testimony indicating
that one trooper did not record Garuti’s statement and had a faulty
memory and that the other trooper had only been in the
interrogation room for five minutes. The fact that the troopers
had failed to record the interrogation was apparently a fact that
Garuti wanted emphasized by trial counsel, as Garuti has two
separate paragraphs in his affidavit that emphasize the importance
of this lack of a recording. The Supreme Judicial Court also
explained that trial counsel obtained a key admission from one of
the troopers that indicated that trial counsel was familiar with
Garuti’s side of the story. 6 The Supreme Judicial Court also
pointed to questioning of other witnesses suggesting that counsel
was very knowledgeable about the facts of the case, which in its
view “belie[d] [Garuti’s] contention that trial counsel did not
know the the defendant’s side of the story . . . .” SJC Decision,
907 N.E.2d. at 231.
6 Specifically, a trooper admitted to Garuti’s counsel that
Garuti had told the trooper that, immediately before the accident,
he did not “right” (or correct) the wheels to his vehicle before
exiting his ex-wife’s driveway (where the accident occurred).
Presumably, Garuti wanted the jury to believe that he did not know
(or had forgotten) which way the wheels of his car were turned when
he attempted to drive away.
-17-

-- 17 of 22 --

To be sure, trial counsel did not question the police
witnesses about their alleged abusive interrogation tactics in
seeking Garuti’s confession, but Garuti has failed to show that the
trial counsel’s alleged inadequacy stemmed from failure to consult
with Garuti. The decision not to question the police witnesses
regarding the alleged abusive interrogation may have been a
judgment that these questions would be neither desirable nor
useful.
Because we conclude that the record before the state
court made clear that trial counsel had sufficient knowledge of the
interrogation under Strickland, and Garuti’s conclusory affidavit
does not undermine this conclusion, Garuti has not raised a
substantial factual issue.
3
Finally, Garuti makes Strickland arguments relating to
his decision not to testify at trial. He contends that counsel did
not adequately prepare Garuti to testify or explain fully the
strategic implications of Garuti’s decision not to testify. On the
issue of his decision not to testify, however, the Supreme Judicial
Court pointed to evidence in the record suggesting that trial
counsel performed reasonably. First, it explained that Garuti
admitted in his own affidavit that trial counsel “emphatically told
[Garuti] his view of the risks I faced if I testified.” SJC
Decision, 907 N.E.2d at 232; see also S.A. 312. Trial counsel had
-18-

-- 18 of 22 --

been particularly concerned that, given the troubled relationship
Garuti had had with his ex-wife, Garuti would vilify her during the
testimony, which would likely result in a guilty verdict. The
Supreme Judicial Court explained that Garuti did not dispute that
this was sound advice. 7 Although the Supreme Judicial Court
recognized that Garuti’s primary complaint was that trial counsel
did not inform him of the benefits of testifying (i.e., that Garuti
could tell his side of the story), the Supreme Judicial Court
concluded that trial counsel’s emphasis on risks over benefits “was
not manifestly unreasonable.” See SJC Decision, 907 N.E.2d at 232.
Garuti again argues that the Supreme Judicial Court
unreasonably applied the facts because it did not have the benefit
of a complete record. However, it is clear again that he has not
raised a substantial issue. Garuti’s affidavit concedes that
trial counsel “emphatically told [Garuti] his views of the
risks . . . if [Garuti] testified.” S.A. 312. The record here
establishes that it would not have been unreasonable for an
attorney in trial counsel’s shoes to have primarily emphasized the
risks of testifying over the benefits.
As this court held in Lema v. United States, 987 F.2d 48,
52 (1st Cir. 1993), “[u]naccompanied by coercion, legal advice
concerning exercise of the right to testify infringes no right
7 The Supreme Judicial Court also noted that Garuti’s
testimony could have opened the door to a rebuttal witness who
could have testified regarding the victim’s fear of the defendant.
-19-

-- 19 of 22 --

[under Strickland], but simply discharges defense counsel’s ethical
responsibility to the accused.” Id. (internal citations omitted);
see also United States v. Teague, 953 F.2d 1525, 1534-35 (11th Cir.
1992)(en banc) (affirming the district court’s rejection of a
Strickland claim where “the evidence failed to show that the
Defendant’s will was ‘overborne’ by his counsel”). There was no
such coercion here, as Garuti admits in his affidavit that trial
counsel “did not coerce [him] into making [his] decision not to
testify.” S.A. 314. Moreover, in Lema, the attorney emphasized a
risk of testifying (in that case, divulging prior convictions),
just as Garuti’s trial counsel did here. See Lema, 987 F.2d at 50-
53; see also Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir.
1996) (concluding that trial counsel’s emphasis on certain risks
was “the best possible advice” and rejecting the defendant’s
Strickland claim). Garuti has not raised a substantial factual
issue as to this Strickland claim.
Relatedly, Garuti also argues that, given trial counsel’s
allegedly deficient explanation of the benefits and risks of
testifying, he could not have knowingly and intelligently waived
his right to testify. See Johnson v. Zerbst, 304 U.S. 458, 464
(1938) (requiring that constitutional rights be waived via “an
intentional relinquishment or abandonment”). This contention is
also incorrect. The Supreme Judicial Court cited a colloquy that
Garuti had with the trial judge, in which Garuti “affirmed that his
-20-

-- 20 of 22 --

decision not to testify was made after adequate consultation with
his counsel and was his own decision” and stated that trial counsel
“was acting most certainly in his best interests.” SJC Decision,
907 N.E.2d at 232 (internal quotation omitted). Garuti reaffirmed
his waiver after “the trial judge briefly suspended the colloquy to
allow petitioner to consult counsel one last time before committing
to his waiver.” District Court Order, 2012 WL 5866248, at *2. In
his affidavit, Garuti admits that “[t]he trial judge held [this]
colloquy with [him] regarding [his] right to testify,” and
“[Garuti] understood that it was entirely [his] decision [of]
whether or not to testify.” S.A. 313. 8 Garuti has again failed to
raise a substantial question that might require an evidentiary
hearing. 9
8 This court has held in other contexts, moreover, that
“knowing and intelligent” waivers of rights occur where “the
defendant is aware of the risks” associated with his decision.
See, e.g., Tuitt v. Fair, 822 F.2d 166, 176 (1st Cir. 1987)
(discussing waiver of right to counsel).
9 Garuti also raises a claim that his former trial
counsel’s refusal to furnish an affidavit describing his conduct,
in and of itself, constituted ineffective assistance of counsel.
But this claim also does not raise a substantial issue. The
Supreme Judicial Court determined that an attorney does not have “a
duty to provide an affidavit to accompany a defendant’s motion for
a new trial.” SJC Decision, 907 N.E.2d at 230. It “agree[d] with
the [trial] judge that even if there were a duty to provide an
affidavit, it is pure speculation that the affidavit would have
been helpful.” Id. Based on the foregoing analysis, we agree and
find this argument to be without merit.
Garuti further claims that his former trial counsel
failed to prepare him to testify. Even if Garuti were correct,
this raises no Strickland issue. Given Garuti’s decision not to
-21-

-- 21 of 22 --

To the extent that Garuti contends that in other respects
he has satisfied the standards of § 2254(d), even without an
evidentiary hearing, there is no merit to this claim.
III
Because it is clear here that Garuti’s claim was
adjudicated on the merits by the Supreme Judicial Court, and Garuti
has not raised a substantial issue that might require an
evidentiary hearing, the judgment of the district court is
affirmed.
AFFIRMED
testify, the alleged failure to prepare him does not meet the
prejudice prong of the Strickland test.
-22-

-- 22 of 22 --