          United States Court of Appeals
                     For the First Circuit

No. 10-1870

                          LARRY ATKINS,

                     Petitioner, Appellant,

                               v.

                        HAROLD C. CLARKE,

                      Respondent, Appellee.


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

          [Hon. Michael A. Ponsor, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                Selya and Howard, Circuit Judges.


     David Shaughnessy for appellant.
     Amy L. Karangekis, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.


                         April 13, 2011
          LYNCH, Chief Judge.     The Supreme Court's new decision in

Cullen v. Pinholster, No. 09-1088, 2011 WL 1225705 (Apr. 4, 2011),

requires that we reject this appeal from a denial of a request for

an evidentiary hearing in relation to a petition for habeas corpus.

          On May 9, 2005, petitioner Larry Atkins was convicted in

Massachusetts state court of unlawful possession of a firearm as

well as unlawful possession of a firearm or ammunition without an

identification card.   On a motion for a new trial, Atkins raised an

ineffective   assistance   of   counsel   claim,   which   concerned   the

admission into evidence of a 911 call.         The motion included a

request for an evidentiary hearing and was accompanied by two

affidavits, one of which contained an admission by trial counsel

that he should have asked for a more limiting instruction.

          After considering the affidavits, trial transcript, and

court notes of the proceeding, the state trial judge denied Atkins'

request for an evidentiary hearing as well as his ineffective

assistance claim. Commonwealth v. Atkins, No. 2004-01116, slip op.

at 1 (Mass. Sup. Ct. Jan. 31, 2007).       The state trial judge found

that Atkins' lawyer had made a strategic choice as to the admission

of the tapes that was not unreasonable, that the prejudice standard

for ineffective assistance had not been met, and that there was no

substantial risk of a miscarriage of justice.        Id. at 5-11.

          Atkins' appeals of his conviction and the denial of his

motion for a new trial were consolidated.      The state appeals court


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affirmed,      directly     addressing       and    rejecting     the   ineffective

assistance claim and agreeing with the trial court's analysis.

Commonwealth v. Atkins, No. 06-P-220, 2007 WL 4234095, at *1 (Mass.

App. Ct. Dec. 3, 2007).           The state court rejected Atkins' argument

that the trial judge abused her discretion in denying him an

evidentiary hearing.        Id.     Atkins petitioned for further appellate

review, which was denied by the Supreme Judicial Court in January

2008.   Commonwealth v. Atkins, 450 Mass. 1107 (2008).

              Within a few weeks, Atkins filed a petition for habeas

corpus in federal court under 28 U.S.C. § 2254(d)(1). The petition

was   initially      dismissed      for    want    of   prosecution     but    it    was

reinstated in February 2009.              Before the federal district court,

Atkins raised the same ineffective assistance claim and argued

under     §   2254(d)(1)     that     the    state      court    decision     was     an

unreasonable application of Strickland v. Washington, 466 U.S. 668

(1984).       He also sought a federal evidentiary hearing under 28

U.S.C. § 2254(e)(2) so that his trial counsel--and perhaps he--

could testify as to trial strategy.

              The federal district court denied the evidentiary hearing

and denied the petition on its merits.                  Atkins v. Clarke, 730 F.

Supp.   2d    253,    254   (D.    Mass.     2010).      It     concluded     that    an

evidentiary hearing was unnecessary because the state court record,

which included trial counsel's affidavit on the new trial motion,

contained      the   material     facts     relevant    to    Atkins'   ineffective


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assistance claim.       Id. at 255.      Atkins received a certificate of

appealability only on the issue of whether the federal district

court   abused    its   discretion      in    denying    his    request      for   an

evidentiary hearing.        Thus, only that issue is before us.

            Shortly before oral argument, Cullen clarified the legal

landscape as to evidentiary hearings under § 2254(e)(2).                         When

Cullen was decided on April 4, 2011, we advised counsel that day to

address Cullen at oral argument, which was done.

            Cullen held that habeas "review under § 2254(d)(1) is

limited   to    the   record    that   was    before    the    state    court    that

adjudicated the claim on the merits."            Cullen, 2011 WL 1225705, at

*8.     The Court reasoned that the "backward-looking language"

present in § 2254(d)(1) "requires an examination of the state-court

decision at the time it was made" and that therefore the record

under review must be "limited to the record in existence at that

same time i.e., the record before the state court."                    Id.

            The Court held that this reading was "compelled" by the

structure of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), which it held conveyed "Congress' intent to channel

prisoners' claims first to the state courts."                  Id.     It held that

"evidence      introduced      in   federal    court     has    no     bearing     on

§ 2254(d)(1) review.        If a claim has been adjudicated on the merits

by a state court, a federal habeas petitioner must overcome the

limitation of § 2254(d)(1) on the record that was before the state


                                       -4-
court."   Id. at *10.   The Court noted that this construction did

not render superfluous § 2254(e)(2), which sets limits on the

availability of evidentiary hearings.   That subsection may apply

when a constitutional claim was not "adjudicated on the merits,"

within the meaning of § 2254(d)(1).   Id. at *10-11.

          It is clear both that Atkins' petition for habeas corpus

was brought under § 2254(d)(1) and that his ineffective assistance

claim was adjudicated on the merits by the state court.   Until oral

argument, Atkins had conceded in all of his habeas filings that the

claims were in fact adjudicated on the merits in the state courts.

          Atkins now argues that the phrase "adjudicated on the

merits" in § 2254(d)(1) must be given a new meaning in light of

Cullen.   He argues that a state court has not adjudicated a claim

on the merits unless it has given a full and fair evidentiary

hearing and that therefore federal courts must hear new evidence if

the state court has declined to give a petitioner such a hearing.

Atkins relies on two pre-Cullen decisions: Winston v. Kelly, 592

F.3d 535 (4th Cir. 2010), and Wilson v. Workman, 577 F.3d 1284

(10th Cir. 2009) (en banc).

          To the extent these cases are inconsistent with Cullen as

to claims asserted under § 2254(d)(1), and that appears to be the

point of Atkins' citation to them, they are, of course, overruled.

The citation to Wilson is presumably for its statement that "when

the state court makes such findings on an incomplete record, it has


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not made an adjudication on the merits to which we owe any

deference."      Wilson, 577 F.3d at 1290.        Neither of those cases is

like   this    one.     And   there   is    no   doubt   that   this   case   was

adjudicated     on    the   merits.    A    contrary     interpretation   would

eviscerate Cullen and we reject it.

              As the only issue on which a certificate of appealability

was entered concerned Atkins' request for a federal evidentiary

hearing, we affirm.




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