          United States Court of Appeals
                       For the First Circuit

No. 13-1193

                           YODERNY PENA,

                       Petitioner, Appellant,

                                 v.

                          THOMAS DICKHAUT,

                       Respondent, Appellee.




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

              [Hon. Rya W. Zobel, U.S. District Judge]




                               Before

                     Howard, Selya, and Stahl,
                          Circuit Judges.



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


                         November 22, 2013
          STAHL,   Circuit   Judge.     Petitioner   Yoderny   Pena   was

convicted of first-degree murder in Massachusetts state court.

After the state court upheld his conviction on appeal, Pena filed

a petition for a writ of habeas corpus in federal district court,

based on alleged violations of his Fifth and Sixth Amendment

rights. The district court denied the petition. For the following

reasons, we affirm the district court's decision.

                      I.     Facts & Background

          On March 8, 2004, Pena killed his girlfriend by stabbing

her fifty-one times. Five months later, he turned himself in to the

police. At trial, Pena acknowledged that he had killed the victim.

The defense contended, however, that Pena was mentally impaired at

the time of the murder and therefore incapable of forming the

mental state required to commit first-degree murder.

          The defense's only witness was Dr. Rebecca Brendel, a

psychiatrist, who testified to Pena's mental illness based on her

review of Pena's medical records and interviews she had with Pena

and his sister. Relying on her record review and observations, she

"concluded that 'Pena suffered from a chronic and severe mental

illness on the day of the killing'" and "expressed 'serious doubt'

whether Pena could form the intent required for first-degree murder

on the day he killed his girlfriend."      Pena v. Dickhaut, No. 09-

12204-RWZ, 2013 WL 140262, at *3 (D. Mass. Jan. 11, 2013).




                                  -2-
             Dr. Brendel's testimony did not convince the jury, which

returned a verdict of first-degree murder based on deliberate

premeditation and on extreme atrocity or cruelty. The court denied

Pena's motion for a new trial, and the Supreme Judicial Court of

Massachusetts ("SJC") upheld the conviction on appeal. Thereafter,

Pena filed a petition for writ of habeas corpus in federal court.1

             His original habeas petition raised seven issues, but

Pena abandoned all but two of them in the brief he submitted to the

district court, in which he argued that the prosecutor improperly

commented on his failure to testify in violation of the Fifth

Amendment.     He also raised a claim of ineffective assistance of

counsel on the basis that his attorney inadvertently failed to

produce   certain    medical   records   to   the   prosecution   during

discovery, which prevented her from questioning Dr. Brendel about

them at trial.      Pena raised, and the SJC rejected, both of these

arguments on direct review. The district court held that the SJC's

determination of these issues was not unreasonable and denied the

petition for habeas relief.




     1
       It does not appear that Pena pursued any post-conviction
relief at the state court level. As the district court observed,
however, "Respondent does not contend that any procedural bars
prevent reaching the merits of Pena's claims. It appears that the
claims were properly exhausted and Pena's petition was timely
filed." Pena, 2013 WL 140262, at *2 n.3. Accordingly, we will not
address whether the absence of state post-conviction proceedings
procedurally bars Pena's federal habeas petition.

                                  -3-
                              II.     Analysis

            Under the Antiterrorism and Effective Death Penalty Act

of   1996   ("AEDPA"),   a   habeas    petitioner     must    show   that   the

challenged state court adjudication was "contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States," or that the

decision "was based on an unreasonable determination of the facts."

28 U.S.C. § 2254(d)(1)–(2); see also Morgan v. Dickhaut, 677 F.3d

39, 46 (1st Cir. 2012).        In this context, "unreasonable" means

"some increment of incorrectness beyond error."              Morgan, 677 F.3d

at 46 (internal quotation marks omitted). This standard is "highly

deferential" to the state court.            Burt v. Titlow, 571 U.S. ---,

2013 WL 5904117, at *4 (Nov. 5, 2013) (per curiam).              It requires

the petitioner to "show that the state court's ruling on the claim

being presented in federal court was so lacking in justification

that there was an error . . . beyond any possibility for fairminded

disagreement."    Id. (alteration in original) (internal quotation

mark omitted).

            "A district court's decision to deny or grant a habeas

petition under 28 U.S.C. § 2254 is subject to de novo review."

Morgan, 677 F.3d at 46.      Accordingly, like the district court, we

must determine whether the state court's decision was unreasonable

under the standard set forth in AEDPA.           Stephens v. Hall, 294 F.3d

210, 217 (1st Cir. 2002).


                                      -4-
            A.     Fifth Amendment Violation

            Pena argues that the state court proceedings violated the

Fifth Amendment because the prosecutor improperly commented on

Pena's failure to testify.          It is well-settled that the Fifth

Amendment   "forbids   .   .   .   comment    by   the   prosecution   on   the

accused's silence."    Gomes v. Brady, 564 F.3d 532, 537 (1st Cir.

2009) (alteration in original) (quoting Griffin v. California, 380

U.S. 609, 615 (1965)).         To determine whether a petitioner is

entitled to collateral relief, "[f]irst, we determine whether the

comment offended the Fifth Amendment by insinuating improperly that

[the defendant's] failure to testify was evidence of guilt."                Id.

(citing Griffin, 380 U.S. at 615).           "Second, we ascertain whether

the comment had a 'substantial and injurious effect or influence in

determining the jury's verdict' such that reversal is warranted."

Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

            In its closing argument, the prosecution addressed the

defense's argument that there was no evidence of motive:

     Two people are close to each other, they have an argument
     and one of them ends up dead. Well, one of them will
     never be able to tell us why it happened, will she?
     Celines Carabello, obviously, can never tell us. The
     defendant is the only one who knows why he did it. He's
     the only one who knows why he got so enraged that he had
     to kill --

            At this point, defense counsel objected and the court

sustained the objection. The prosecutor continued with his closing




                                     -5-
argument, and immediately after he concluded the court issued the

following curative instruction to the jury:

       Members of the jury, counsel stated that the defendant is
       the only one who knows, made reference in that regard.
       The defendant, as I will instruct you later, has an
       absolute right not to testify in this case, and it is
       improper to comment on that right to remain silent. You
       are to disregard that portion of the prosecutor's closing
       argument.

During jury instructions, the court again emphasized that Pena had

an "absolute right not to testify," and instructed the jury "not to

draw any adverse inference against the defendant because he did not

testify."

            On direct appeal, the SJC found that the impropriety of

the prosecutor's remark was a close question, but concluded that

"the prosecutor did not intend his comment to be understood as a

comment on Pena's failure to testify . . . ."        Commonwealth v.

Pena, 913 N.E.2d 815, 829 (Mass. 2009).      The SJC also found that

"the    judge's   prompt   and   thorough   instructions   here    were

sufficiently clear and complete to negate any possible prejudice to

the defendant."    Id. at 830 (internal quotation marks omitted).

            On habeas review, the district court remarked that the

question of the comment's impropriety was indeed close, and "[i]f

[it] were deciding the issue in the first instance, [it] might

reach a different conclusion."     Pena, 2013 WL 140262, at *6.     But

under the deferential standard of § 2254(d), the district court

concluded that the SJC's holding was not "contrary to, or an


                                  -6-
unreasonable application of," federal law.               Id.     Moreover, the

district court agreed with the SJC that any error was harmless.

Id.   It observed that "[t]he reference to Pena's silence was brief

and immediately interrupted by objection; it did not form a major

theme of the prosecutor's argument"; and the court's instructions

to the jury were prompt and thorough.              Id.     Accordingly, the

district court found that "Pena has failed to show that the error

had a 'substantial and injurious effect or influence' on the

verdict against him."     Id. (quoting Brecht, 507 U.S. at 623).

           The district court was correct on both points.             The fact

that the district court disagreed with the SJC on the propriety of

the remark does not mean the SJC's determination was unreasonable

for the purposes of § 2254 review.             In fact, this court has

explained that "if it is a close question whether the state

decision   is   in   error,   then   the   state   decision      cannot   be   an

unreasonable application of federal law."           Morgan, 677 F.3d at 47

(internal quotation marks omitted). Under the deferential standard

of § 2254(d), the district court correctly allowed the SJC's

decision to stand.

           Furthermore, we agree with both the SJC and the district

court that the error, if any, was harmless.                    "This court has

repeatedly held that a strong, explicit and thorough curative

instruction to disregard improper comments by the prosecutor is

sufficient to cure any prejudice from prosecutorial misconduct."


                                     -7-
United States v. Rodriguez, 675 F.3d 48, 63 (1st Cir. 2012) (citing

United States v. Riccio, 529 F.3d 40, 45 (1st Cir. 2008)).          The

court's instructions here were more than sufficient.         Indeed, we

have   found   that   even   without   a   contemporaneous     curative

instruction, standard jury instructions alone can be sufficient to

mitigate the prejudice of an improper comment if the comment was an

"isolated instance of misconduct" and the evidence against the

defendant was "compelling."    Gomes, 564 F.3d at 538–9.       Here, as

the district court pointed out, the challenged comment was brief

and quickly interrupted, and the prosecution's case rested on the

substantial evidence it presented at trial, not on an impermissible

inference drawn from Pena's silence.       Given the strength of the

court's curative instructions, we find the alleged error to be

harmless under these circumstances.        We therefore affirm the

district court's holding regarding the Fifth Amendment claim.

          B.      Sixth Amendment Violation

          Pena claims that his attorney's ineffective assistance at

trial deprived him of his Sixth Amendment right to counsel.          To

succeed on this claim, Pena "must demonstrate both: (1) that

'counsel's performance was deficient,' meaning that 'counsel made

errors so serious that counsel was not functioning as the "counsel"

guaranteed the defendant by the Sixth Amendment'; and (2) 'that the

deficient performance prejudiced the defense.'"     United States v.




                                 -8-
Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

              To demonstrate "deficient performance," Pena "must show

that his trial counsel's representation fell below an objective

standard of reasonableness."            Rodriguez, 675 F.3d at 56 (internal

quotation marks omitted).            This "highly deferential" standard

requires    Pena    to   "overcome      the    presumption   that    .    .   .   the

challenged action might be considered sound trial strategy."                      Id.

(alteration in original) (internal citations and quotation marks

omitted).      A lawyer's performance is constitutionally deficient

"only where, given the facts known at the time, counsel's choice

was so patently unreasonable that no competent attorney would have

made it."      Id. (internal quotation marks omitted).

              "To   demonstrate    'prejudice,'        [Pena]    must     show     'a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'"

Id. at 57 (quoting Porter v. McCollum, 558 U.S. 30, 38–39 (2009)).

"Consequently, we must consider, on whole-record review, whether

the   trial    might     have   ended    differently    absent      the   lawyer's

blunder."      Ouber v. Guarino, 293 F.3d 19, 33 (1st Cir. 2002).

              The Supreme Court recently explained that when a federal

court reviews an ineffective assistance of counsel claim under

§ 2254, it must use a "doubly deferential standard of review that

gives both the state court and the defense attorney the benefit of


                                         -9-
the doubt." Burt, 2013 WL 5904117, at *2 (internal quotation marks

omitted); see       also       Morgan, 677 F.3d at 47 ("[H]abeas review

involves the layering of two standards. The habeas question of

whether the state court decision is objectively unreasonable is

layered     on     top    of    the   underlying   standard     governing     the

constitutional       right       asserted.")   (internal      quotation     marks

omitted).        This is an extremely difficult standard to meet, and

Pena has failed to do so here.

                         1.    The Testimony of Dr. Brendel and the Holy
                               Family Hospital Records

            Pena's Sixth Amendment claim is based on his counsel's

failure to enter into evidence records of Pena's hospitalization at

Holy Family Hospital ("HFH") in August 2004.           Although Dr. Brendel

reviewed these records in preparation for her testimony, Pena's

counsel inadvertently failed to produce them to the prosecution

during discovery.         Therefore, the prosecutor successfully objected

to Dr. Brendel's testimony regarding the HFH records and the court

struck that portion of her testimony from the record.

            Dr. Brendel's testimony was based on Pena's medical

records going back to 1996, as well as interviews she conducted

with Pena and his sister. Dr. Brendel testified that, beginning in

1996 in the Dominican Republic, Pena was diagnosed with bipolar

disorder with psychotic features and treated for symptoms of severe

depression and psychosis.             He also had problems with drug and

alcohol abuse at that time.              In 1999, he was committed to a

                                        -10-
hospital and given electroconvulsive therapy and antipsychotic

medications.

          Pena moved to the United States in 2002, where he

continued to experience problems with mental health and substance

abuse.   In 2003, a doctor at Boston Medical Center diagnosed him

with recurrent major depression and prescribed several medications.

He saw a social worker five days before the murder, who noted

depressive symptoms and poor memory and concentration.

          After the murder, but shortly before Pena turned himself

in, he went to a police station complaining that voices in his head

were telling him to hurt himself.     He was referred to HFH, where he

was   hospitalized   for   seven    days.    The   records   from   that

hospitalization include a diagnosis of "psychotic disorder, not

otherwise specified," and confirm that Pena went to a police

station seeking help for auditory hallucinations. The records note

that Pena "does not appear to be a reliable historian," and explain

that "it is difficult to determine whether his responses are due to

cognitive impairment or planned evasiveness and avoidance, or one

posing as a mental patient."       They further state that "[t]here is

a suspicion of being purposely avoidant and vague on account of his

illegal [immigration] status."

          Once Pena was in custody for the murder, he was evaluated

at Bridgewater State Hospital for competence to stand trial.        The

report from Bridgewater indicated a "high suspicion that Pena was


                                   -11-
feigning memory problems."       In their interviews with Dr. Brendel

prior to trial, both Pena and his sister reported that he had been

experiencing symptoms of mental illness in the period leading up to

the murder.   Pena also told Dr. Brendel that he had not slept for

three nights prior to the murder and had been using cocaine,

marijuana, and alcohol.

            During the course of Dr. Brendel's testimony, Pena's

counsel asked about the HFH records.           Dr. Brendel responded that:

     [I]n those records, there was some concern about Mr.
     Pena's difficulty with memory and being able to give an
     accurate history.   The discharge diagnosis included a
     diagnosis of psychosis not otherwise specified. So, the
     physicians in the hospital did observe him at some time
     during the hospitalization to be suffering from psychotic
     symptoms.

At that point, the prosecutor objected on the grounds that Pena had

not produced the HFH records in discovery.               He did not appear

opposed to the admission of the records into evidence, but he

stated, "I'd like to see them, at the very least.                If not, I ask

that the answer be stricken."           Pena's counsel responded that "if

they weren't provided, it was inadvertently that they weren't

provided.     And   I   don't   have    any   more   questions    about   these

records."     The court decided to strike Dr. Brendel's answer

regarding the HFH records, and Pena's counsel offered no argument

against the court's decision.




                                       -12-
                   2.   Application of Strickland to the Omission
                        of the HFH Records

          On direct appeal, the SJC rejected Pena's argument that

his counsel's failure to produce the HFH records and introduce them

into evidence constituted ineffective assistance of counsel.      It

decided that "even had the Holy Family Hospital records been

offered and admitted in evidence, they merely would have been

cumulative of other testimony offered by Dr. Brendel, a highly

qualified psychiatrist."    Pena, 913 N.E.2d at 831.    It also held

that "counsel's failure to offer the records in evidence (or to

make an offer of proof with them when a single answer of Dr.

Brendel's was struck) was plainly a strategic decision that was not

manifestly unreasonable," particularly in view of the fact that the

records contained information that was potentially harmful to Pena.

Id. at 832.   On habeas review, the district court held that the

SJC's resolution of this claim was reasonable.         Pena, 2013 WL

140262, at *4–5.

          Pena argues on appeal that the SJC's determination of the

Sixth Amendment claim was unreasonable, because of the importance

of the HFH records to Pena's defense.     In Pena's view, "the way

this case was presented to the jury revolved around whether Dr.

Brendel had an adequate basis for the opinions she gave concerning

Mr. Pena's mental state at the time of the murder." The prosecutor

attacked Dr. Brendel's credibility on the grounds that "all of the

facts about Mr. Pena's mental illness on which she relied came from

                                -13-
the mouth of Mr. Pena himself, [and] were therefore self serving .

. . ."   But, according to Pena, the HFH records were unique in this

respect, because there was no other documentation that Pena went to

a police station complaining of voices in his head.                    The HFH

records therefore offered the "only evidence that would have

directly countered the attack that the prosecutor made on her

credibility."      The fact that he went to a police station to report

voices in his head demonstrates objectively and conclusively, Pena

argues, that he was mentally ill at the time of the murder, because

"[n]o one who is a fugitive in a murder case is going to go to a

police station and ask for help from mysterious voices unless the

voices are actually drumming their destructive message into the

target's brain."

            Therefore, according to Pena, the HFH records were not

cumulative, because they offered uniquely objective evidence of

Pena's mental illness.      For the same reason, the failure of Pena's

trial    counsel   to   introduce   them   into   the   record   had    to   be

prejudicial — "[i]t was the only evidence that provided external

verification for the information on which Dr. Brendel relied."

Pena argues further that no competent attorney would make the

strategic decision to omit such persuasive evidence from the

record, and that in fact Pena's attorney never made that choice.

Instead, as Pena reads the record, his attorney fully intended to

elicit testimony about the records, regardless of the potentially


                                    -14-
damaging information in them about Pena's memory problems and

possible   evasiveness.       She    declined   to    go    forward   with   her

questioning only when her inadvertent failure to produce came to

light, not because of any reasoned assessment of the evidence.

             For two reasons, we do not believe that the HFH records

were as conclusive as Pena portrays them.                  First, Pena turned

himself in for the murder shortly after his hospitalization at

HFH,2 and his medical history includes multiple references to

possible deception on his part — either feigning memory loss or

giving evasive answers.       A jury could conclude, therefore, that

Pena was falsely reporting the voices in his head to provide a

defense for the murder he had committed.               Pena dismisses this

possibility as far-fetched, because a rational fugitive would never

risk walking into a police station just to feign illness.               But the

fact that Pena turned himself in for the murder a short time later

makes it questionable that he feared apprehension by the police at

that time.      Indeed, he may have been planning it.

             A second problem is that there is a five-month gap

between the murder and the HFH hospitalization.               Even if the HFH

records were conclusive proof of mental illness at that time, they

would not prove that he was suffering any symptoms at the time of

the   murder.      Dr.   Brendel    specifically     testified   that   Pena's


      2
        Pena was hospitalized at HFH August 3-10, 2004. He
surrendered to the police on August 27. Pena, 913 N.E.2d at 822.


                                     -15-
symptoms     of   mental   illness       "wax    and    wane";   therefore,      she

explained, Pena could have been experiencing serious symptoms at

the   time   of   the    murder,   but     not   when    he   was    evaluated   at

Bridgewater.      The same reasoning applies equally, however, in the

other direction: he could have been experiencing symptoms while at

HFH, but not at the time of the murder.

             For these reasons, we do not share Pena's view that the

HFH   records     have   unique    and    convincing      evidentiary     value.

Therefore, we conclude that the SJC was reasonable in determining

that their omission was not prejudicial.                Furthermore, whether or

not Pena's trial counsel made a strategic choice to omit the

evidence,3 we do no think this is an error "so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by

the Sixth Amendment."        Valerio, 676 F.3d at 246.              The failure to

introduce a single piece of evidence of questionable value may

indeed seem like a mistake in hindsight, but it is not an error of

constitutional magnitude.

                              III.       Conclusion

             For the foregoing reasons, we affirm the district court's

order denying habeas relief.




      3
       We do not imply that the subjective intentions of Pena's
trial counsel are determinative; the reasonableness test under
Strickland is objective. See Rodriguez, 675 F.3d at 56.

                                         -16-
