Richard Shuman v. Luis Spencer,superintendent, McI-Norfolk

United States Court of Appeals
For the First Circuit
No. 09-2459
RICHARD SHUMAN,
Petitioner-Appellant,
v.
LUIS SPENCER,SUPERINTENDENT,
MCI-NORFOLK,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Donald A. Harwood for Appellant.
Eva M. Badway, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.
February 23, 2011

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Akathisia is characterized by muscular agitation, quivering 1
and the inability to sit still, and may appear as a result of
prescription drugs. Stedman’s Medical Dictionary 42 (28th ed.
2006).
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THOMPSON, Circuit Judge. In August of 1997, Richard
Shuman gunned down two business associates and was later convicted
of first degree murder. At trial, Shuman’s defense counsel put on
a vigorous insanity defense. Advancing a carefully crafted theory
that a “toxic soup” of diabetes, depression, and anxiety
medications -- including the selective serotonin reuptake inhibitor
("SSRI") Zoloft -- put Shuman in a drug-induced psychotic state at
the time of the killings, trial counsel argued that Shuman could
not have had the necessary mens rea to commit premeditated murder.
A Massachusetts jury rejected Shuman’s theory and he was sentenced
to life in prison without parole.
After exhausting state remedies, Shuman applied to the
federal court for a writ of habeas corpus claiming violations of
his constitutional rights under the Sixth and Fourteenth Amendments
-- specifically, ineffective assistance of counsel. He now
challenges the denial of his habeas petition, again insisting that
his trial counsel performed ineffectively by failing to investigate
and produce evidence that Shuman's killings resulted, not from a
general drug-induced psychosis as was advanced at trial, but rather
and more specifically from Zoloft-induced “akathisia,” a state of
violent urges and agitation. While neither Shuman’s trial counsel 1
nor his trial expert, Dr. Harold Bursztajn, referred specifically

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to akathisia, Dr. Bursztajn did testify that Zoloft combined with
Shuman's other prescription medicine could give rise to side
effects including agitation, a need to act, and “compulsive
behavior” that may be "organized" but is nonetheless “delusional.”
These side effects, he said, manifest “right away” and are
exacerbated by diabetes. For the reasons discussed herein, we
affirm the district court’s denial of habeas relief.
I. Background
A. Facts
We review the facts largely as described by the
Massachusetts Supreme Judicial Court (“SJC”) decision affirming
Shuman’s conviction, “supplemented with other record facts
consistent with the SJC's findings.” Yeboah-Sefah v. Ficco, 556
F.3d 53, 62 (1st Cir. 2009) (quoting Healy v. Spencer, 453 F.3d
21, 22 (1st Cir. 2006)) (cert. denied 130 S. Ct. 639 (2009)).
On the afternoon of August 5, 1997, Shuman shot and killed
two business associates, Jack Badler and Howard Librot. The
Commonwealth attributed the shootings to a deteriorating business
relationship. In 1989, Shuman's printing business, Foremost
Printers (“Foremost”), had purchased another company, Web Corp.,
from Librot. Librot and his wife continued to run Web Corp. under
Foremost's ownership. Then, in 1991, Foremost hired Badler, a
friend of Librot’s, to handle the company's finances and accounting.
In 1994 and 1995, Shuman was on leave from Foremost as

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part of a stock buy-out agreement. While Shuman was away, Badler
remained in charge of Foremost's finances. The company did not fare
so well. By 1996, Foremost had endured a series of poor business
decisions which caused it to experience serious financial
difficulties. Faced with dimming business prospects, tensions
mounted between Shuman, Librot, and Badler. Frequently, Shuman
argued with Badler about the company's accounting. By 1997,
Foremost was unable to pay Badler's consulting fee for managing its
books. Nor was it able to meet its financial obligations to Librot.
Soon thereafter, Librot re-purchased Web Corp. from Foremost. Once
the sale was complete, Librot instructed his employees not to permit
Shuman on Web Corp. property and not to assist him with any
printing.
On August 1, 1997, Foremost's assets were sold to another
company, Starr Printing ("Starr"). Starr refused to retain Badler
to handle the company's books. Consequently, Badler insisted that
Shuman sign a document releasing Badler from any liability related
to the management of Foremost's finances. Shuman refused. Four
days after the sale, Badler processed the payroll for Web Corp., but
not for Foremost. Badler refused to process Foremost's payroll
until Shuman signed the release. On the morning of August 5, there
was a heated argument between Badler and Shuman in Badler's office.
Shuman stormed out, but returned later in the day armed with a nine
millimeter Beretta semiautomatic pistol.

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Confronted by an armed Shuman, Badler had the presence of
mind to call Helen Anderson, his human resources manager, to his
office door to witness the gun. Badler instructed Anderson to dial
911 if Shuman did not put the weapon away. "Shuman told Anderson,
'Don't worry. I won't hurt you,' and put the gun away."
Commonwealth v. Shuman, 836 N.E.2d 1085, 1088 (Mass. 2005). As
Anderson was leaving the room, Shuman accused Badler of ruining his
business and his life. Then, Shuman opened fire on Badler striking
him in the eye, neck, upper chest, and thumb. As Shuman left
Badler's office he told two stunned employees, “Don't worry. I'm
not going to shoot you two. I'm not upset with you.” Id.
After shooting Badler, Shuman drove to Librot's office.
He fired as he entered, striking Librot in the head, neck, and
chest. With weapon in hand, Shuman left the building and drove
away. Both victims died. Minutes after leaving Librot's office,
Shuman arrived at his parents' home and told his mother that he had
killed two people. Distraught, Shuman raised the gun to his head.
His mother begged him not to shoot himself. Eventually, Shuman did
put the weapon away and his parents drove him to the police station.
At trial, friends and family testified that beginning in
January 1997, they started to notice changes in Shuman's
personality. He was unable to sleep, "seemed depressed, lost
weight, and on one occasion, held a gun to his head." Id. In fact,
in mid-July of 1997, Shuman's family physician, Dr. Warshaw, treated

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Dr. Warshaw's first name does not appear in the record before 2
the court.
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Shuman for the first time with a small dosage of an antidepressant
known as Elavil. Concerned about the possibility of worsening 2
depression, Dr. Warshaw referred Shuman to a specialist,
psychiatrist George Gardos.
Dr. Gardos saw Shuman one week before the shootings. Dr.
Gardos diagnosed depression, but discerning no psychosis, saw no
need for hospitalization. Furthermore, he did not believe Shuman
was a risk of harm to himself or others. Dr. Gardos increased
Shuman's preexisting Elavil dosage and prescribed Zoloft, a “mood
elevator.” Dr. Gardos testified that he was not aware of any
“significant or commonly occurring interaction between hypoglycemia,
diabetes and Zoloft.”
On September 18, 1998 and October 13, 1998, psychiatrist
and defense expert Dr. Bursztajn evaluated Shuman for criminal
responsibility. Dr. Bursztajn opined that at the time Shuman opened
fire, he “was suffering from a major depression, with anxiety which
reached psychotic dimensions,” as well as paranoia and delusions.
According to his testimony, Shuman's diabetes exacerbated his
depression, and his consumption of Elavil and Zoloft magnified its
symptoms. Dr. Bursztajn also testified about the risk of “amplified
depression” arising from the medicine Shuman was taking for
hypertension. In particular, Dr. Bursztajn posited that Elavil in
combination with Zoloft can give rise to agitation and compulsive

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behavior which is irrational but organized. He also testified that
“the side effects come right away,” particularly in patients
suffering from diabetes. Dr. Bursztajn’s testimony was consistent
with Shuman’s theory of the case: in defense counsel’s opening
statement, he described Shuman as an individual “in a state of
depression” who had been “crank[ed] . . . up on Zoloft.”
The prosecution called as its expert Dr. Michael
Annunziata, a forensic psychiatrist. After spending twelve hours
with Shuman, Dr. Annunziata testified he observed no evidence of a
marked mood disorder, intellectual impairment, psychotic or
delusional disorder, or major depression.
In an attempt to lessen the blow of Dr. Annunziata's
testimony regarding this lack of evidence, Shuman’s counsel, on
cross-examination, asked Dr. Annunziata whether the use of Zoloft,
in combination with diabetes medication, could cause any side
effects, specifically, enhanced aggression. Dr. Annunziata replied
that, "[a]ll of the medical [sic] and the combination of medications
can cause medical complications. I don't think that you're going
to find that the . . . effects result in what you refer to as a
fixed delusional system." As a follow-up question, counsel asked
Dr. Annunziata whether there are any warnings that Zoloft may cause
enhanced aggression. Dr. Annunziata testified that "there's a
warning on every drug about almost everything." When asked by
defense counsel to specifically address Zoloft, Dr. Annunziata

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replied that, "[l]ike many drugs there's a list of hundreds --
dozens and hundreds of possible side effects. Almost everything
[sic] is possible." In response to the court's admonishment that
"the question is just [in regard to] Zoloft," Dr. Annunziata stated
that Zoloft does provide warnings relating to enhanced aggression.
He went on to say that in "very, very few cases," Zoloft causes a
“high feeling” for someone in a depressed state and can actually
“enhance the depression.” This enhanced depression would, in Dr.
Annunziata's opinion, be “quite observable.”
B. Procedural History
On October 26, 1999, a state court jury convicted Shuman
of two counts of first degree murder. He was sentenced to life in
prison without parole. Shuman timely appealed his convictions to
the SJC. He also filed a motion for post-conviction relief (i.e.,
a new trial) on two grounds: (1) newly discovered evidence of a link
between Zoloft and violence and, alternatively, (2) ineffective
assistance of counsel in failing to establish a link between Zoloft-
induced akathisia and Shuman’s violent acts. In support of his
motion, Shuman submitted an affidavit from a psychiatric expert, Dr.
Joseph Glenmullen, who opined that akathisia, a condition not
explicitly mentioned during trial, was the cause of Shuman’s violent
episode. In the affidavit, Dr. Glenmullen asserted that after
having reviewed Shuman’s full medical record from Bridgewater State
Hospital ("Bridgewater"), which trial counsel admittedly never

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obtained, he saw ample evidence of akathisia, though Shuman himself
has never suggested the word “akathisia” appears in his medical file
from Bridgewater.
On May 10, 2004, upon reviewing the affidavits and
supporting materials, the trial justice denied the motion for post-
conviction relief without holding an evidentiary hearing. The
justice concluded that (1) the evidence was not newly discovered
because the link between SSRIs and violence had been public since
the early 1990’s and (2) Shuman’s counsel presented a well-prepared
insanity defense in which he specifically, during his cross-
examination of the prosecution's expert witness, asked about a link
between Zoloft and enhanced aggression.
Shuman filed a motion for reconsideration, which the trial
justice denied on July 16, 2004. He appealed the denial of the
motion for post-conviction relief, which was consolidated with his
direct appeal from his convictions. On November 8, 2005, the SJC
affirmed Shuman’s convictions and the denial of his motion for post-
conviction relief. Shuman, 836 N.E.2d at 1087.
On August 3, 2006, Shuman filed a petition in federal
court for a writ of habeas corpus under 28 U.S.C. § 2254. Shuman
claimed that he was (1) denied effective assistance of counsel
because his trial attorney failed to investigate and present
evidence that Shuman’s conduct resulted from Zoloft-induced

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We note that in the district court’s opinion, which was otherwise 3
well-reasoned and decided correctly, the court plainly misstated
the facts when it wrote that the link between Zoloft and violence,
“as it appears in this record, . . . was not reliably understood at
the time of trial.” Shuman, 657 F. Supp. 2d at 276. In fact, as
the record and the SJC’s decision make abundantly clear, Shuman’s
trial counsel did explicitly make the alleged link between Zoloft
and violence. He did so during opening statement, direct
examination of his expert, cross-examination of the state’s expert,
and closing argument. The district court may have relied too
heavily on trial counsel’s post-trial affidavit, filed with
Shuman’s motion for post-conviction relief, wherein trial counsel
surprisingly disclaimed any knowledge at the time of trial of the
link between Zoloft and violence, even though both the SJC
decision, see Shuman, 836 N.E.2d at 1090-91 & nn. 2-4, and the
record belie his claim. For example, trial counsel said to the
court at sidebar, “Remember that guy Phil Hartman? Remember his
wife or girlfriend who shot him? They just filed suit against the
Zoloft manufacturer because of the enhanced aggression.”
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akathisia and that (2) this failure resulted in the forfeiture of
an involuntary intoxication defense.
On September 25, 2009, the district court denied the
petition for habeas relief. Shuman v. Spencer, 657 F. Supp. 2d 3
268, 276 (D. Mass. 2009). Shuman appealed and filed a motion for
a certificate of appealability, which the district court granted on
October 28, 2009.
II. Discussion
A. Standard of Review
“We review the district court's denial of habeas relief
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)). “Put
differently, the district court opinion, while helpful for its

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reasoning, is entitled to no deference.” Healy v. Spencer, 453 F.3d
21, 25 (1st Cir. 2006).
Where the petitioner's claim was adjudicated on the merits
by the state court, as it was here, our review of a federal claim
for habeas relief is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Pursuant to § 2254(d),
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim--
(1) 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.
“[C]learly established Federal law” refers to the holdings
of the Supreme Court's decisions at the time of the state court
decision. Carey v. Musladin, 549 U.S. 70, 74 (2006) (internal
quotation marks omitted). When applying § 2254(d)(1) or (2), a
decision can still be “reasonable” even if the reviewing court
“concludes in its independent judgment that the relevant state court
decision applied clearly established federal law erroneously or
incorrectly." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)
(internal quotation marks omitted and emphasis added).
“[U]nreasonable” under this section of the AEDPA means something

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greater than incorrect or erroneous. See id. Finally, even if a
state court's error rises to the level of being “unreasonable,”
habeas relief remains unavailable unless the petitioner can also
show that the error "had a 'substantial and injurious effect or
influence in determining the jury's verdict.'” Delaney v. Bartee,
522 F.3d 100, 105 (1st Cir. 2008) (quoting Brecht v. Abrahamson, 507
U.S. 619, 631 (1993)).
The clearly established federal law relating to
ineffective assistance of counsel claims is based on Strickland v.
Washington, 466 U.S. 668 (1984). Strickland established that the
Sixth and Fourteenth Amendments to the United States Constitution
entitle a defendant "to the effective assistance of counsel in all
state criminal prosecutions which may result in the loss of his
liberty." Yeboah-Sefah, 556 F.3d at 70 (citing Strickland, 166 U.S.
at 684). Of course, “to establish constitutionally ineffective
assistance of counsel as a ground for federal habeas relief, the
petitioner bears a doubly heavy burden.” Id. On direct appeal,
to demonstrate ineffective assistance under Strickland, Shuman must
show: “'(1) deficient performance by counsel (2) resulting in
prejudice.'” Id. (quoting Malone v. Clarke, 536 F.3d 54, 63 (1st
Cir. 2008)). In this context, “deficient” does not mean merely
lacking or wanting; it “requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466

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U.S. at 687. Likewise, prejudice cannot be proved by any small
quantum; it “requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id.
But even this exacting demonstration is not enough in a
habeas proceeding. Under AEDPA, "[t]he pivotal question is whether
the state court's application of the Strickland standard was
unreasonable. This is different from asking whether defense
counsel's performance fell below Strickland's standard," which is
the question we would ask if the claim came to us "on direct review
of a criminal conviction in a United States district court."
Harrington v. Richter, 131 S. Ct. 770, 785 (2011). In addition,
AEDPA sets out a separate and demanding standard applicable to
review of a state court's factual findings. Pike v. Guarino, 492
F.3d 61, 68 (1st Cir. 2007). The state court's factual findings are
“presumed to be correct” unless the petitioner can rebut this
“presumption of correctness” with “clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
An ineffective assistance of counsel claim, we have said,
is a mixed question of law and fact and should therefore be reviewed
under the "unreasonable application" clause of § 2254(d)(1).
Yeboah-Sefah, 556 F.3d at 70. "When § 2254(d) applies, the question
is not whether counsel's actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied

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Strickland's deferential standard." Harrington, 131 S. Ct. at 788.
We find that there is.
B. Ineffective Assistance of Counsel
Shuman first insists that trial counsel’s failure to fully
investigate and present the link between his ingestion of Zoloft and
the drug’s immediate side effects, specifically akathisia and
enhanced aggression, rises to the level of constitutional
deficiency. In support of this assertion, Shuman relies on
decisions from our sister circuits that discuss trial counsel
ineffectiveness in failing to adequately present a defense -- each
of which is easily distinguishable from the case before us. See,
e.g., Washington v. Murray, 952 F.2d 1472, 1476-79 (4th Cir. 1991)
(claims by petitioner that trial counsel was ineffective in failing
to develop and present to jury the results of exculpatory laboratory
tests on semen stains found on blanket recovered from bed where rape
of victim allegedly occurred entitled petitioner to evidentiary
hearing); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991) (“Once
a defendant identifies potential alibi witnesses, it is unreasonable
not to make some effort to contact them to ascertain whether their
testimony would aid the defense.”); Harris v. Reed, 894 F.2d 871,
877-79 (7th Cir. 1990) (defendant's attorney's failure to call
eyewitnesses who saw another man run from scene of shooting
constituted ineffective assistance of counsel).

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None of the cases cited above, on which Shuman so heavily
relies, casts doubt on the reasonableness of the SJC's decision that
trial counsel was not ineffective. Washington, Grooms, and Harris
are on their facts entirely inapposite. None dealt with a defense
actually presented but not highlighted as being a separate defense.
Shuman also contends that trial counsel’s admitted failure
to obtain his complete medical file from Bridgewater, where Shuman
was treated after the killings, rises to the level of constitutional
deficiency. While we in no way condone this apparent oversight, we
note that even if trial counsel had obtained the complete file, no
one at Bridgewater ever diagnosed Shuman with akathisia. Thus, it
would be highly speculative to assume that the file would somehow
have led counsel to put on a pure Zoloft-induced akathisia defense
which Shuman now prefers.
In finding that trial counsel's performance was not
deficient the SJC said,
The Zoloft defense that Shuman now
offers, and the insanity defense that
trial counsel presented, are very
close indeed; both aver that drugs,
in combination with Shuman's
preexisting depression, contributed
to his aggressive behavior. Trial
counsel argued in his opening
statement that the defendant was
“crank[ed] ... up on Zoloft” by his
doctor, and was a man “in a state of
depression, with his medical
condition, on Zoloft,” who had been
driven to the psychotic state that
resulted in his pulling the trigger.
Counsel also repeatedly argued in his

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closing that Shuman was affected by
a “toxic soup” of medication, and had
been “jack[ed]” up on “meds,”
including Zoloft. Application of the
term “akathisia” to the behavior
rather than “heightened aggression”
is of little consequence.
Id. at 1093. The SJC reasonably reached the conclusion that trial
counsel's performance was not deficient and, therefore, only
summarily addressed the second prong under Strickland, that Shuman
was not prejudiced by any difference between the two defenses. See
id. On habeas review, Shuman has the daunting task of showing that
the SJC was unreasonable in rejecting the Strickland claim. He has
failed to make that showing.
Nor do we find any basis to conclude that the SJC's
ineffective assistance of counsel analysis was based on an
unreasonable determination of the facts in light of the evidence
presented at trial. See 28 U.S.C. § 2254(d)(2). The SJC found that
trial counsel in fact linked Zoloft to enhanced aggression in his
opening statement, on cross-examination, and in his closing
argument. Shuman has not succeeded in rebutting these presumptively
correct findings. Because the SJC's findings reflect a reasonable
reading of the record, we must uphold its analysis of the Strickland
claim based on those facts. Id.
III. Conclusion
Nothing before this court leads us to conclude that the
SJC was unreasonable in its application of Strickland. As a result,

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we affirm the district court's holding denying Shuman habeas relief.

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