          United States Court of Appeals
                     For the First Circuit

No. 09-2428

                      ALFREDO COMPANONIO,

                     Petitioner, Appellant,

                               v.

                        STEVEN O'BRIEN,

                     Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. F. Dennis Saylor, U.S. District Judge]


                             Before

                   Boudin, Lipez and Howard,
                        Circuit Judges.


     Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for petitioner.
     Natalie S. Monroe, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for respondent.


                         March 5, 2012
                HOWARD, Circuit Judge.       Alfredo Companioni appeals the

district court's denial of his request for habeas corpus relief

from       a   life   sentence   imposed     after    his   1987    Massachusetts

conviction for first degree murder.            28 U.S.C. § 2254.       The crux of

the petition is Companioni's claim that he received ineffective

assistance of counsel in his murder trial because his attorney

failed to pursue a defense based on his mental illness.                        The

Massachusetts         Supreme    Judicial     Court    ("SJC")      rejected   the

ineffective assistance claim, finding both that Companioni had been

competent to stand trial and assist in his defense, and that he had

instructed his attorney not to present a mental impairment defense.

See Commonwealth v. Companonio, 833 N.E.2d 136 (Mass. 2005).1                   We

affirm.

                             I. FACTUAL BACKGROUND

                We recount the facts as recited by the SJC, supplementing

them with other record facts that are consistent.                  Yeboah-Sefah v.

Ficco, 556 F.3d 53, 62 (1st Cir. 2009); Healy v. Spencer, 453 F.3d

21, 22 (1st Cir. 2006).

                During the evening of May 19, 1986, Companioni and Santos

Lopez arrived at the apartment of Gilbert Nohoya in Brockton,

Massachusetts.         The three were friends, and Companioni had been

living in Nohoya's apartment for several months.                    Shortly after


       1
       State and federal case captions and records of prior
proceedings refer to the petitioner as "Alfredo Companonio," but
counsel informs us that his surname is "Companioni."

                                       -2-
arrival, Companioni got into a brief argument with Nohoya, who

brandished a knife.    Tempers cooled; the knife was put away; and

the altercation apparently concluded without further incident.     A

short time later, Nohoya mentioned that the following day was his

birthday.     To celebrate, each of the men drank a bottle of

champagne, and Companioni and Lopez snorted several lines of

cocaine.    The trio then went for a drive in Companioni's car, and

took turns firing Companioni's .22 caliber automatic pistol into

the air.    Afterwards, they returned to Nohoya's apartment.

            Later in the evening, Companioni's cousin, Celia Vasquez,

stopped by Nohoya's apartment.    The three men were drinking at the

time, and Vasquez later testified that all three appeared to be

drunk.     Vasquez went into a bedroom with Nohoya and Companioni,

where Nohoya apparently touched Vasquez, causing Companioni to

become "a little bit upset."    Vasquez left shortly thereafter, and

the men continued to drink.

            Several hours later, Companioni announced that he was

going to go out and get "the pistol" so that they could "try out

the .38."     Within five minutes after leaving the apartment, he

returned with a .38 caliber handgun.     Upon his return, Companioni

said "Let's go for a ride," and then without warning fired once at

Nohoya and once at Lopez.    Nohoya was hit in the chest, and Lopez

was hit on the finger.    Nohoya died within a minute of being shot.

Lopez escaped out a back door and called the police from a nearby


                                 -3-
payphone, as Companioni drove away.     The police found Companioni

the following morning, sleeping at a friend's nearby apartment. He

was arrested and charged with killing Nohoya.

          At his trial on a single count indictment charging him

with first degree murder, Companioni unsuccessfully urged the jury

to find that someone else could have shot Nohoya, that the killing

had been accidental, or that he had been too impaired by alcohol or

drugs to form the specific intent to kill.2     Upon conviction, he

was sentenced to life without parole.

                 II.   POST-CONVICTION PROCEEDINGS

A. Motion For New Trial

          Almost five years after his conviction, Companioni filed

a motion for a new trial in which he advanced an ineffective

assistance of counsel claim based on trial counsel's failure to

present a mental impairment or illness defense. The Superior Court

granted the motion, but on appeal the SJC directed the Superior

Court to conduct an evidentiary hearing and, specifically, to take

testimony from trial counsel about the nature and the extent of the




     2
       First degree murder in Massachusetts requires "deliberately
premeditated malice aforethought." See Mass. Gen. Laws ch. 265
§ 1.    While Massachusetts does not recognize the defense of
"diminished capacity," Companonio, 833 N.E.2d at 142 n.7, it does
permit a defendant to "produce expert testimony on the issue
whether or not the impairment of his mental processes precluded him
from being able to deliberately premeditate."         Id. (quoting
Commonwealth v. Gould, 405 N.E.2d 927 (Mass. 1980)).

                                -4-
defendant's   instructions   to   him   concerning   trial   strategy.

Commonwealth v. Companonio, 650 N.E.2d 351, 351 (Mass. 1995).

          At the evidentiary hearing, held before the same judge

who had presided over Companioni's trial, the court heard not only

from trial counsel but also from four doctors, three of whom had

evaluated Companioni before his trial.     Defense counsel testified

that because he had become aware of mental health issues affecting

Companioni, he had retained an expert, Dr. Robert Moore, to examine

him.   Dr. Moore concluded that Companioni was not suffering from

any major mental disorder and was competent to stand trial and to

assist in his defense.   Companonio, 833 N.E.2d at 141;      see also

Commonwealth v. Companioni, Crim. No. 82617, Order on Defendant's

Motion For New Trial at 4 n.3 (Mass. Super. Sept. 6, 2000) ("New

Trial Order").    He also found "no substantial evidence" that

Companioni "lacked the capacity to appreciate the nature of his

actions or that he was unable to conform his behavior to the . . .

law at the time of the offense," and concluded that Companioni was

responsible for his behavior at the time of the killing.     New Trial

Order at 4 n.3.

          As a result of Dr. Moore's findings, trial counsel

testified, a "classic insanity defense" did not appear viable.

Companonio, 833 N.E.2d at 141.      Counsel further testified that

despite Dr. Moore's report, he continued to press Companioni,

through an interpreter, about the possibility of pursuing a defense


                                  -5-
based   on   mental   disease   or     defect.     Companioni     appeared   to

understand    what    was   being    discussed,   and   rejected     counsel's

entreaties, both denying that he committed the crime and saying

that "crazy people go to hell."              Id. at 142.       Counsel further

testified that on the first day of trial, he met with Companioni,

his brother and an interpreter provided by the court and again

suggested presenting a mental impairment defense.                  Companioni,

however, remained steadfast in his opposition.             Counsel testified

that he concluded at that point that Companioni understood the

options that had been presented and had made a decision.              Although

defense counsel disagreed with Companioni's decision, he abided by

it.   Companioni and his brother both testified that these meetings

and   conversations     never   took    place,    and   that    counsel   never

suggested the possibility of pursuing a defense based on mental

illness or impairment.

             In addition to being examined at counsel's request by Dr.

Moore, Companioni had also been transferred three times prior to

trial to Bridgewater State Hospital to address mental health

concerns.      The first hospitalization, in June 1986, followed

Companioni's complaints of hearing voices at night.               (It was this

transfer that triggered defense counsel's consultation with Dr.

Moore.)      He was examined by Dr. Jorge Veliz, the hospital's

director of clinical services, to determine both his competency to




                                       -6-
stand trial, see Mass. Gen. Laws ch. 123, § 15(b),3 and his fitness

to await trial in jail, see id. § 18(a)4.            Dr. Veliz diagnosed

Companioni with schizo-affective and personality disorders, as well

as cocaine dependency, but also concluded that he was competent to

stand trial and would be able to communicate with his attorney. Dr.

Veliz further found that Companioni was not a threat to himself or

others and could be released from Bridgewater and returned to the

jail.

           The next Bridgewater transfer occurred in December 1986.

Dr.   Leonard   Bard,    Bridgewater's   assistant    medical   director,

evaluated Companioni to determine only whether he could remain in

jail, pursuant to Section 18(a).      At his admission it was reported

that Companioni was suffering from hallucinations and was selling

his medication.   Although jail officials reported suicide threats,

Companioni   denied     them.   Dr.   Bard   ultimately   concluded   that

Companioni was suffering from "a major mental illness that can be

best described as paranoid schizophrenia."       Nevertheless, he added


      3
       Massachusetts assesses competency to stand trial on the
basis of "whether [the defendant] has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational as well as a factual
understanding of the proceedings against him."     Commonwealth v.
Companonio, 833 N.E.2d at 144 (quoting Commonwealth v. Goodreau,
813 N.E.2d 465, 472 (Mass. 2004)); see also Brown v. O'Brien, 666
F.3d 818, 825 (1st Cir. 2012) (quoting Dusky v. United States, 362
U.S. 402, 402 (1960)).
      4
      Massachusetts law requires that an assessment of this nature
be carried out whenever an inmate is transferred due to mental
health concerns. See Mass. Gen. Laws ch. 123 § 18(a).

                                   -7-
that Companioni's illness was "somewhat" controlled by medication

and that he could be returned to the jail to await trial.

               Companioni's final pre-trial admission was on February 6,

1987.       After he had set a fire in his cell, he was hospitalized to

determine whether he could remain in a jail setting.         Companioni

denied any hallucinations, reporting only that he wanted to get

some air in his cell.        He was returned to the jail roughly one

month later, which was approximately six weeks prior to trial.

               Drs. Veliz and Moore both testified at the hearing on the

new trial motion, as did Dr. Malcolm Rodgers.           Dr. Rodgers, a

psychiatrist, had been retained by the Commonwealth to prepare an

opinion regarding Companioni's mental state at the time of the

shooting, based on a review of Companioni's treatment records. All

three concluded that Companioni had been competent to stand trial.5

               Companioni called Dr. Bard, who repeated his pretrial

diagnosis of paranoid schizophrenia, but offered no views regarding

either Companioni's competency to stand trial or his capacity to

form the specific intent to kill at the time of the shooting.

Companioni also submitted an affidavit from another psychiatrist,

Dr. Bernard Katz, indicating that Companioni suffered from "major




        5
       Dr. Rodgers testified that Companioni did not lack the
ability to deliberately premeditate. He also addressed an earlier
report that he had prepared in which he concluded that Companioni
was competent to stand trial.

                                    -8-
mental illness" and could have lacked the capacity to form the

intent to kill in May 1986.

          The Superior Court's findings on which it based its

denial of a new trial may be summarized as follows.         Trial counsel

investigated the issue of Companioni's mental health, including

retaining Dr. Moore.      Counsel's testimony was credited over the

account provided by Companioni and his brother, and, in light of

Companioni's insistence that he was innocent and that he did not

want to be deemed "crazy," the decision not to pursue the "mental

disease or defect" defense was reasonable.          Companionio, 833 N.E.

2d at 142.     Moreover, the record was devoid of evidence that

Companionio lacked the requisite mental capacity to premeditate or

form the mental state required for malice. It was, therefore, also

not unreasonable for trial counsel to forego further exploration of

Companioni's mental health as a basis for a defense.          Id.

          In   addition   to   these    findings,    in   considering   the

defendant's capacity to make decisions about his defense, the

Superior Court also noted that both Dr. Moore and Dr. Veliz found

Companioni competent to stand trial, id. at 143-44, and that such

a finding in Massachusetts "includes the ability of a defendant to

assist and consult with counsel in the preparation of a defense."

New Trial Order at 9 n.7.        Dr. Moore, the defense's putative

expert, explicitly stated that Companioni was able to assist his

attorney in his defense.


                                  -9-
           Companioni subsequently sought a hearing on an amended

motion for new trial.      In support of this request, new counsel

arranged for Dr. Bard to re-interview Companioni and to review

Companioni's medical records and excerpts of the trial transcript.

On the basis of that assessment, Dr. Bard stated in a May 2003

affidavit his belief that Companioni lacked the capacity to form

the specific intent to kill in 1986 (the "2003 Affidavit").           The

amended motion was denied in September 2003.

B. Appeal to the SJC

           As relevant here, Companioni argued in his appeal from

the denial of his new trial motion that he was denied effective

assistance of counsel at trial in two ways:          first, because his

attorney did not challenge Companioni's competency to stand trial,

and second, because counsel did not pursue the mental impairment

defense.

           1. Competency

           In   arguing   that   he   should   not   have   stood   trial,

Companioni relied on his three pre-trial admissions to Bridgewater;

his conduct during incarceration in the month prior to trial; an

opinion that the upcoming trial worsened his mental health; the

observations of trial counsel; and a post-conviction admission to

Bridgewater that resulted in a finding of a twenty month period of

incompetency to serve his sentence. Companonio, 833 N.E.2d at 143.

He also argued that the pretrial observations of Drs. Veliz and


                                  -10-
Moore were of little value because they took place several months

before trial and paled against his post-conviction commitment to

Bridgewater.    Id.

           Affirming the denial of a new trial, the SJC observed

that Dr. Veliz's competency report reflected the circumstances of

Companioni's first Bridgewater admission.             The court noted that,

although Dr. Moore did not examine the records from Companioni's

first Bridgewater admission, he did review Dr. Veliz's accurate

report of that admission.         Id. at 144.    The SJC characterized the

one-page record of Companioni's February 1987 Bridgewater admission

as "disclos[ing] nothing of significance," given that it lacked any

indicia of mental illness.         Id.   The court further remarked that

any claim that Companioni's condition worsened as a result of his

return to jail for the six weeks prior to trial was speculation,

noting   that   the    transfer   back   to   the   jail    conformed    to   the

recommendations of the Bridgewater staff.             Id.       Finally, the SJC

determined that Companioni's post-conviction Bridgewater commitment

was "essentially irrelevant," because the relevant timeframe for

evaluating competency is the time of trial.                Id. at 145 (citing

Commonwealth v. Hill, 375 N.E.2d 1168, 1175 (Mass. 1978)).

           While      the   SJC   acknowledged      that    a    contemporaneous

competency evaluation would have been preferable, the court also

observed that Companioni submitted no expert testimony that he was

incompetent and that when he testified at the Superior Court


                                     -11-
evidentiary hearing, he made no claim that he had not understood

the trial proceeding or was unable to communicate with counsel. Id.

The court also rejected Companioni's argument that a first degree

murder defendant who is diagnosed with a major mental illness, but

who   nevertheless    refuses    to     consider    an   insanity    defense,

necessarily has raised "a substantial question of possible doubt"

as to competency.     The SJC concluded that, while Companioni "may

have been diagnosed, prior to trial, with a psychiatric condition

. . . despite that condition, he was competent to stand trial."

Id.

            2. Mental Impairment Defense

            In denying Companioni's claim that trial counsel was

ineffective for failing to present a mental impairment defense, the

SJC noted that counsel had investigated the defense by retaining

Dr. Moore.    The court also observed that Companioni's post-trial

failure to present any expert opinion testimony that he lacked the

requisite    mental   capacity   by     itself     doomed   his   ineffective

assistance claim.     Id. at 146.      Moreover, the SJC agreed with the

Superior    Court   that   counsel's    decision    to   forego   the   mental

impairment defense was not unreasonable, given that the decision

was "based on [Companioni's] personal choice against the advice of

counsel."    Id.




                                      -12-
           Finally, the SJC found no error in the denial of a second

evidentiary hearing, noting that Dr. Bard's 2003 affidavit raised

"no substantial issue."      Id.

C. Federal Proceedings

           Invoking 28 U.S.C. § 2254, Companioni filed the instant

petition in federal district court.         He asserted four grounds for

relief, three of which are within the scope of this appeal: 1) that

his trial counsel was constitutionally deficient for failing to

demand a hearing to determine Companioni's competency to stand

trial; 2) that the state courts erred in finding him competent to

waive a mental illness defense and to stand trial; and 3) that

trial counsel was ineffective in failing to present a defense that

the   combined   effects    of   mental    illness,    drugs,     and   alcohol

prevented Companioni from forming the intent and premeditation

necessary for a first degree murder conviction.

           After denying Companioni's request for an evidentiary

hearing,   the   district   court   rejected    all    of   his    claims   and

dismissed the petition with prejudice.         The heart of the court's

reasoning was that the state courts were permitted to conclude that

Companioni was competent to stand trial and that conclusion was

fatal to all of Companioni's habeas claims.           This appeal followed.

                             III. DISCUSSION

           Our review is de novo.          Yeboah-Sefah, 556 F.3d at 56.

Habeas relief may be granted only if the state adjudication was


                                    -13-
contrary to, or involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court; or if

it 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)(1)-(2); Grant v. Warden, Me. State Prison, 616 F.3d 72,

75-76 (1st Cir. 2010), cert. denied, 131 S. Ct. 948 (2011).              A

state court decision is contrary to clearly established federal law

if it "contradicts the governing law set forth in the Supreme

Court's cases or confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court" but reaches

a different result.   John v. Russo, 561 F.3d 88, 96 (1st Cir. 2009)

(internal   quotations   omitted).      A   court   unreasonably   applies

clearly established law if it applies Supreme Court precedent to

the facts of the case in an objectively unreasonable manner,

Williams v. Taylor, 529 U.S. 362, 405 (2000), such as reaching a

result that is "devoid of record support" for its conclusion.

McCambridge v. Hall, 303 F.3d 24, 37 (1st Cir. 2002) (en banc).          A

state court's factual findings are presumed to be correct unless

the petitioner rebuts the presumption with clear and convincing

evidence.   28 U.S.C. § 2254(e)(1); Torres v. Dennehy, 615 F.3d 1,

5 (1st Cir. 2010), cert. denied, 131 S. Ct. 1038 (2011);6          see also


     6
       Companioni makes arguments based on section 2254(d)(2), as
well as 2254(e)(1).     The "relationship between the standards
enunciated in [the two sections] remains unclear." Teti v. Bender,
507 F.3d 50, 58 (1st Cir. 2007).         Both, however, encompass
deference to state court findings, and "we apply a presumption of

                                 -14-
Clements v. Clarke, 592 F.3d 45, 47 (1st Cir.), cert. denied, 130

S. Ct. 3475 (2010) (observing that presumption of correctness

applies to factual determinations made by both state trial and

appellate courts).7

                Companioni here reprises the argument that he was denied

effective assistance of counsel because his trial counsel failed to

investigate and develop a mental illness defense.                 Relatedly, he

asks       us   to   remand   this   case   to   the   district   court   for   an

evidentiary hearing on whether he was competent to waive the

defense prior to trial.              He also argues that he was denied due

process when the state court refused to conduct a second post-

conviction hearing devoted solely to his competency to stand trial.

A. Ineffective Assistance of Counsel

                To succeed on a claim of ineffective assistance of

counsel, Companioni must demonstrate both that trial counsel's

performance was deficient and that there was prejudice as a result.

Harrington v. Richter, 131 S. Ct. 770, 787 (2011).                 "If he falls

short on either requirement, his claim fails." Wright v. Marshall,



correctness to the trial court's factual findings and also examine
whether there has been an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings."
John, 561 F.3d at 92.
       7
       Review of the facts is limited to "the record that was
before [the] state court." Brown, 666 F.3d at 822 n.3 (quoting
Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011)). Accordingly,
we decline to consider the affidavit from Santos Lopez that
Companioni submitted to the district court.

                                         -15-
656 F.3d 102, 108 (1st Cir. 2011) (citing Strickland v. Washington,

466 U.S. 668, 697 (1984)).      Performance is measured against an

"objective standard of reasonableness," id. (citation omitted), and

it is constitutionally deficient "only if no competent attorney

would have acted as [counsel] did."        Id.   Moreover, we start from

the presumption that counsel has "rendered adequate assistance and

made all significant decisions in the exercise of reasonable

professional judgment." Id. (quoting Strickland, 466 U.S. at 690).

Prejudice is established by showing that there is a reasonable

probability that the trial would have had a more favorable outcome

if trial counsel had acted differently. Id.

           Turning to the particulars at hand, as previously noted

the SJC affirmed the Superior Court's determination that Companioni

was competent to stand trial, a finding that on these facts

includes a determination that he was competent to confer with his

lawyer about whether to pursue a defense based on his mental

health. See Robidoux v. O'Brien, 643 F.3d 334, 339 (1st Cir. 2011)

(observing that a finding of competency requires the subsidiary

findings   that   the   defendant    understands    the   nature    of   the

proceedings against him, and that he is able to assist counsel in

his defense), cert. denied, 132 S. Ct. 866 (2011);                 see also

Godinez v. Moran, 509 U.S. 389, 396 (1993) (a competency finding

encompasses the ability to "consult with counsel and to assist in

preparing his defense" (quoting Drope v. Missouri, 420 U.S. 162,


                                    -16-
171 (1975))); cf. Dean v. Superintendent, Clinton Corr. Facility,

93 F.3d 58, 61 n.1 (2d Cir. 1996) (explaining that a failure to

pursue a mental impairment defense when the client objects to the

presentation of one is not ineffective assistance because that

decision "belongs   to   the   client").   If   the   SJC's   competency

determination stands, the ineffective assistance claim must fail

because there can be no prejudice if Companioni was competent to

instruct counsel not to further pursue the mental illness defense.

          Companioni attacks the state courts' competency finding

as an unreasonable determination of the facts.          See 28 U.S.C.

§ 2254(d)(2); see also Recupero v. New Eng. Tel. & Tel. Co., 118

F.3d 820, 832 (1st Cir. 1997) (noting that competency is a question

of fact) (citing Thompson v. Keohane, 516 U.S. 99, 111 (1995)).      In

light of the record evidence in the state court proceedings,

however, the claim fails.8


     8
       The parties' briefs reflect a skirmish over the precise
details of Companioni's appellate claims. His reply brief contains
the following summary:

          [C]ounsel should have obtained Dr. Bard's
          Bridgewater evaluation, developed a mental
          illness defense (including an opinion from a
          mental health expert) and then discussed it
          with Companioni. Assuming Companioni were to
          refuse to consider the defense on the same
          grounds that he did, then trial counsel should
          have   obtained   an  expert   opinion   about
          Companioni's competency to waive a mental
          illness defense in light of the paranoia,
          hallucinations and refusal to discuss the
          defense, and then raised the issue with the
          trial judge.

                                 -17-
            Companioni points to evidence which he says should have

dictated a finding of incompetency before the SJC.                 First, he

argues that Dr. Moore's conclusion that Companioni was competent to

stand    trial   carries   no    weight   because   Moore   did   not   review

Companioni's Bridgewater records and he was unaware of Dr. Bard's

later report that Companioni suffered from paranoid schizophrenia.

He further argues that his own denial of mental illness and his

refusal to pursue a defense based on that illness was itself proof

of his incompetency.       Additionally, Companioni refers to comments

made by defense counsel that he was "disassociated with the facts

of the case," as well as those that he made to defense counsel

about "crazy people" going to Hell.9

            Those facts, taken alone, may constitute some evidence of

incompetency.     But that is not the exclusive take on the evidence.

Both the Superior Court and the SJC also considered numerous

countervailing facts.           For example, whatever shortcomings Dr.

Moore's opinions may have possessed, they were echoed to a large


This explanation notwithstanding, the case rises and falls on the
finding of competency.
     9
       The parties dispute Companioni's precise language, which
itself was delivered through an interpreter. The record does not
clear up the dispute.     At one point in the new trial hearing,
original defense counsel testified consistently with his affidavit
that Companioni said he was not crazy and that "crazy men go to
Hell." At another point he testified that the statement was "If
you make me crazy, I go to Hell." For present purposes, the import
of the two statements is the same: that a person putting on a
defense based on mental health would be seen as "crazy," a result
that he did not desire.

                                     -18-
extent by Dr. Veliz and Dr. Rodgers.                 Moreover, the bare fact that

a defendant has a mental illness does not necessarily render him

incompetent to stand trial.            See Indiana v. Edwards, 554 U.S. 164

(2008)    (affirming        lower     court    appointment        of   counsel    where

schizophrenic defendant was competent to stand trial, but not to

defend himself).         Similarly, defense counsel's use of the term

"disassociated," when taken in context, was not necessarily a

medical diagnosis,          but     could    have    been   a description        of   his

client's refusal to acknowledge the evidence arrayed against him,

while continuing to assert his defense that he did not commit the

crime.         And   finally,       counsel    testified      that     he    understood

Companioni's comment about Hell to be an emphatic opposition to his

suggestion of presenting to the jury any sort of defense based on

his mental illness.

               In the end, we cannot decide in the petitioner's favor

unless we supplant the SJC's reasoning by adopting his view of

arguably conflicting evidence.                But "[w]here the record evidence

can be interpreted to support a different version, the case here,

we must reject such a request."                John, 561 F.3d at 95; see also

Teti,    507    F.3d   at    59   (holding         that   state   court     credibility

determinations "are exactly the type of factual determinations to

which we defer, at least short of any indication of serious

error").       Accordingly, we conclude both that the SJC's competency

finding was not unreasonable based on the facts before it and that


                                            -19-
Companioni has failed to rebut the presumption of correctness that

is part and parcel of that and other findings of fact.10

B. Evidentiary Hearing in the District Court

           We   review      the   district   court's       refusal    to   hold   an

evidentiary hearing for abuse of discretion.                Forsyth v. Spencer,

595 F.3d 81, 85 (1st Cir. 2010).            The district court provided two

reasons for its decision.            First, the court concluded that a

hearing was barred by 28 U.S.C. § 2254(e)(2), which proscribes --

with certain exceptions -- a hearing if the petitioner has failed

to   develop    the   factual     basis     for     a   claim    in   state   court

proceedings.     Alternatively, the district court concluded that

Companioni failed to demonstrate that a hearing would elicit

factual support       for   his   claims.         The   latter   rationale    amply

supports denial of the hearing.



     10
       Companioni criticizes the SJC's affirmance of the Superior
Court's refusal to hold an evidentiary hearing with respect to Dr.
Bard's affidavit.     That affidavit, however, did not address
Companioni's competency to stand trial or to assist defense
counsel, but only his mental condition at the time of the crime.
Since Companioni was found competent to reject the defense that Dr.
Bard was promoting, the denial of the hearing was not unreasonable.
     Companioni also argues, for the first time on appeal, that his
request for a second evidentiary hearing to consider Dr. Bard's
affidavit was a denial of due process.       Though he alluded to
violations of due process in connection with his Strickland claim
before the state court, his argument that due process violations
alone could provide an independent ground for relief was not
presented in his habeas petition, and no certificate of
appealability was issued on this claim. Appellate review on this
ground is therefore waived. Peralta v. United States, 597 F.3d 74,
83-84 (1st Cir. 2010)(citing Bui v. DiPaolo, 170 F.3d 232, 237 (1st
Cir. 1999)).

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           Before granting an evidentiary hearing, a habeas judge

"must first consider whether such hearing could enable an applicant

to prove the petition's factual allegations, which, if true, would

entitle the applicant to federal habeas relief." Teti, 507 F.3d at

62   (citing   Schriro   v.   Landrigan,   550 U.S.   465,   474   (2007)).

Companioni must therefore demonstrate that his allegations would

entitle him to relief and that the hearing is likely to elicit the

factual support for those allegations.        See id.

           Companioni sought a hearing in the district court to

explore both his competency to stand trial and the question of his

mental state at the time of the killing.       The fulcrum of the case,

however, is competency to stand trial -- including Companioni's

competence to instruct his attorney not to pursue a defense based

on his mental illness -- and the thrust of his appellate claim is

that he has never had a meaningful hearing on the issue of his

competence to waive a mental illness defense.

           After reviewing the medical records and hearing testimony

over three days, the Superior Court concluded that Companioni was

competent to assist his attorney, a finding that the SJC affirmed.

The record reflects that Companioni's competency to stand trial and

to assist his attorney was addressed on several occasions in the

Superior Court hearing.        Moreover, both defense counsel and the

court questioned Dr. Bard about Companioni's mental health as it

related to commission of the crime and to his dealings with trial


                                   -21-
counsel.    And the hearing had been provoked by an SJC order

directing the Superior Court to take evidence on Companioni's

instructions to trial counsel, and it was followed by the parties'

post-hearing submissions addressing his competence to give those

instructions.

           A "full and fair" hearing is one in which the defendant

is given an opportunity to present evidence and be heard on an

issue.   See Neron v. Tierney, 841 F.2d 1197, 1199 (1st Cir. 1988)

(citing Stone v. Powell, 428 U.S. 465, 482 (1976)). Companioni had

such an opportunity.      Indeed, approximately seven months elapsed

between the second and third days of the hearing, thus providing

Companioni significant opportunity to marshal more evidence. Where

a federal evidentiary hearing would "essentially replicate" the

state court record, the district court is on "shaky ground" in

ordering the hearing.     Pike v. Guarino, 492 F.3d 61, 70 (1st Cir.

2007).     Accordingly,    the   district     court     did   not    abuse   its

discretion in denying Companioni's request for an evidentiary

hearing.

                              IV. CONCLUSION

           Finding nothing unreasonable about the SJC's finding that

Companioni was competent to stand trial and assist his attorney, or

its   ultimate   conclusion   that    he    did   not   receive     ineffective

assistance of counsel, we affirm the district court's denial of his

petition for a writ of habeas corpus.


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