          United States Court of Appeals
                       For the First Circuit

No. 11-1216

                          VICTOR E. SMITH,

                       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

                      Boudin, Selya and Stahl,

                          Circuit Judges.


     Charles K. Stephenson for appellant.
     Annette C. Benedetto, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.



                         February 17, 2012
           BOUDIN, Circuit Judge.        Victor Smith is serving a life

sentence in a Massachusetts state prison for first-degree murder.

Massachusetts' Supreme Judicial Court ("SJC") affirmed Smith's

conviction on direct review, Commonwealth v. Smith, 864 N.E.2d 1194

(Mass. 2007), and he now appeals from the federal district court's

denial of habeas relief.     The facts underlying the conviction are

set out at length in the SJC's opinion, and need only be summarized

here.

           Smith and a friend, Francis Albis, spent the evening of

March 4, 2000, "bar hopping" in North Adams, Massachusetts.          They

each consumed about ten drinks over the course of six hours or so,

and witnesses reported that they showed signs of drinking but did

not seem drunk.       Early in the evening, Smith also consumed two

Artane   pills,   a   medication   prescribed    to   him   for   treating

Tourette's Syndrome ("Tourette's"), which Smith had been diagnosed

with at a young age.     Smith, 864 N.E.2d at 1196, 1202.1

           When Smith and Albis were at their final bar of the

night, they saw David Champagne, who was dating Smith's cousin.

Smith, upset over a report that Champagne had beaten her up, told

Albis that he wanted to "kick [Champagne's] ass," and announced to



     1
      Tourette's is a developmental disorder "that affects the
involuntary movements controlled by the frontal networks of the
brain." Smith, 864 N.E.2d at 1196. Although popularly associated
with inappropriate speech, the much more common symptoms are
involuntary physical tics such as blinking and facial movements.
See Am. Psychiatric Assoc., DSM-IV-TR 111-14 (4th ed. 2000).

                                   -2-
other bar patrons that he wanted revenge.           Smith, 864 N.E.2d at

1196-97.    Unaware of the threats, Champagne later provided Smith

and Albis a ride home.     During the trip, Smith accused Champagne of

beating up his cousin, and they argued until Champagne parked his

car near the apartment buildings where Smith and Albis lived.

Shortly thereafter, Smith attacked Champagne, fatally stabbing him

twenty-two times in the back, chest, shoulder, neck and face.            Id.

at 1197-98.

            Leaving Champagne to bleed to death, Smith and Albis

walked into their apartment complex, where they encountered three

tenants.    Smith pushed one of them up against a wall and bragged

that he "just did a guy" and was not afraid "to do another one."

Smith, 864 N.E.2d at 1197.      Smith told Albis and the tenants that

he would "get away with it" because he had Tourette's Syndrome, a

statement   that   Smith   later   repeated   at   Albis'   apartment;   he

threatened Albis' wife Melissa when she attempted to call the

police, stating that he would have no problem killing her or her

five children.     Id.

            The police discovered Champagne's body a few hours later,

and their investigation quickly led to Smith and Albis.             Smith

admitted to fighting Champagne but claimed no recollection of

stabbing him, though an officer later overheard Smith tell his son

that he was never coming home because he had done a very bad thing:

hurt and killed a man.      Smith, 864 N.E.2d at 1198.        A search of


                                    -3-
Smith's apartment led to a knife that--although it had no blood on

it because Smith had washed it--was consistent in size and shape

with Champagne's wounds.       Id.

            The    state    charged    Smith    with    first-degree     murder,

alleging deliberate premeditation and extreme atrocity or cruelty.

Testimony   from    Albis    about    the    killing,   along   with    forensic

evidence and testimony from others who had heard Smith's threats

and boasts, established a powerful prima facie case of first-degree

murder, leaving Smith with the need to establish a defense or

negate some element of the murder offense to bar or reduce the

charge.

            Smith's lead counsel relied centrally on an intoxication

defense designed to achieve a manslaughter verdict.2                   An expert

defense witness, Dr. Spiers, testified about the effects of alcohol

on the brain and the combined effects of alcohol and Artane--in

particular, resulting behavioral disturbances--and opined that the

combined effects of the alcohol and Artane rendered Smith unable to

intend his actions or the results of his actions at the time that

he stabbed Champagne.       Smith, 864 N.E.2d at 1198 & n.4.


     2
      Under Massachusetts law, "[v]oluntary intoxication may
preclude the defendant from forming the malice aforethought
necessary to commit murder." Commonwealth v. Murphy, 813 N.E.2d
820, 836 (Mass. 2004).    While "killing without malice does not
automatically become involuntary manslaughter," an involuntary
manslaughter instruction is "required" when the "traditional
elements of involuntary manslaughter [are] shown by evidence that
the jury might believe." Commonwealth v. Sires, 596 N.E.2d 1018,
1025 (Mass. 1992).

                                       -4-
            The judge instructed the jury that it could consider

whether intoxication affected Smith's state of mind so as to negate

elements of the murder charge, and also instructed the jury on the

lesser crime of involuntary manslaughter as an alternative to

murder.    Smith, 864 N.E.2d at 1199-200, 1202.   The jury convicted

Smith of first-degree murder, finding both deliberate premeditation

and extreme atrocity or cruelty.       By a new trial motion, Smith

pressed a challenge to the competence of trial counsel but the

motion was denied.

            The gist of Smith's ineffectiveness claim was that his

trial counsel was ineffective in failing to investigate and present

a defense that Smith's Tourette's Syndrome exacerbated the effects

of the alcohol and Artane, and also that he was legally insane at

the time of the killing on account of the Tourette's Syndrome and

other mental illness. The SJC reviewed the claim, along with other

challenges to the conviction not pursued on appeal.     Finding that

counsel had not been incompetent, it affirmed.     Smith, 864 N.E.2d

at 1203.

            Smith sought habeas corpus in the district court, 28

U.S.C. § 2254 (2006), which denied relief but granted a certificate

of appealability on the issue of whether Smith's trial counsel had

rendered ineffective assistance.       Because the state court found

that counsel had offered a competent defense, our review on habeas

is limited as to both fact and law by the familiar standards


                                 -5-
requiring deference, but our result here would be the same even if

no deference were accorded.3

          This is not a case in which defense counsel had many good

choices nor one where, even assuming errors in the defense, it

would be easy to show the kind of prejudice required.                 See

Strickland v. Washington, 466 U.S. 668, 692-96 (1984).        Smith had

a professed motive for murder, made threats in advance, savagely

stabbed the victim without immediate provocation, boasted to others

of the killing, and seemingly threatened to kill Melissa Albis, her

five children or all of them when she sought to call the police.

          Nevertheless,   the   question   remains   why   Smith's   lead

counsel did not try to make use of Tourette's in some fashion; and

Smith suggests two ways: to augment the drinks and pills argument

of diminished capacity, e.g., Commonwealth v. LaCava, 783 N.E.2d

812, 820-21 (Mass. 2003); see also note 2, above, or to bolster an

insanity claim that would create a full defense where, "due to a

mental illness (mental disease or defect), [a defendant] lack[ed]

the substantial capacity to appreciate the wrongfulness of an

action or to act in conformity with the law" at the relevant time.

Commonwealth v. DiPadova, 951 N.E.2d 891, 897 (Mass. 2011).


     3
      In such cases, habeas relief is limited to instances where a
state court adjudication 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," 28 U.S.C. § 2254(d)(1), or "that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding," id. § 2254(d)(2).

                                 -6-
          In fact, trial counsel had investigated with Dr. Spiers

the possibility of using Tourette's to augment the diminished

capacity argument, and Dr. Spiers was prepared to offer some

helpful testimony that Tourette's would enhance the effects of the

alcohol and medication, so the matter was investigated.       But,

counsel explained in an affidavit responding to the new trial

motion

          -that after counsel investigated and notified
          the government he would offer a defense based
          partially on Smith's Tourette's Syndrome, the
          government represented that it was prepared to
          offer expert rebuttal testimony from Smith's
          treating neurologist of seventeen years, Dr.
          Ellis,   who  would   testify   that   Smith's
          Tourette's Syndrome played no part in the
          killing;

          -that counsel's "own observations of [Smith
          revealed the] absence of any serious problems
          manifested   by    [Smith]'s   behavior   and
          appearance"; and

          -that counsel was concerned the government
          could effectively argue that Smith's several
          "get away with it" statements showed that a
          Tourette's-based defense was part of a plan to
          kill    Champagne    and    avoid     criminal
          responsibility--suggesting premeditation and
          specific intent.

Smith, 864 N.E.2d at 1202.

          Smith's statements were going to come into evidence in

any event, but emphasizing Tourette's, coupled with rebuttal from

Smith's own long-time doctor (Dr. Ellis), could easily have tainted

a drug and alcohol diminished capacity defense supported only by

the opinion of a doctor less familiar with Smith.   That Dr. Ellis

                               -7-
was prepared to testify as represented was confirmed by his own

post-trial affidavit.    Counsel's decision was in all events a

reasonable strategic judgment entitled to deference in a Strickland

inquiry.   Robidoux v. O'Brien, 643 F.3d 334, 338 (1st Cir.), cert.

denied, 132 S. Ct. 866 (2011).

           Smith also argues that his counsel should have offered an

insanity defense premised on Tourette's Syndrome and other evidence

of mental illness.    A new trial motion affidavit by Dr. Boshes,

engaged by Smith's appellate counsel, opines that Smith "may suffer

from Temporal Lobe Epilepsy," and that in Dr. Boshes' medical

opinion, Smith had a seizure at the time of the killing that

rendered him legally insane.   A post-trial scan authorized by the

state trial court came back negative.     Smith, 864 N.E.2d at 1203.

           Dr. Boshes asserts that a negative scan is far from

conclusive, but there is nothing to suggest that--in reviewing

Smith's medical records and consulting two separate medical experts

about Smith's mental health history--counsel overlooked a fruitful

possibility.   Absent hard scientific support, a jury would not

likely accept a sudden seizure as the explanation given Smith's

motive, prior threat and subsequent boasts and threats.     And the

SJC's factual findings regarding Smith's counsel's investigation

and strategic decisions were reasonable in light of the evidence

presented.   Smith, 864 N.E.2d at 1203.




                                 -8-
          Smith makes a scattering of other claims of error--in

particular, an alleged lack of consultation by counsel with Smith

and other members of the defense team, a claim that Massachusetts

law did not support counsel's strategy, and the failure of the

state court to hold an evidentiary hearing on the new trial motion.

The SJC deals sufficiently with the points--most of which are

inadequately developed on appeal--and nothing independent of the

Tourette's issues is even within the certificate of appealability.

          Affirmed.




                                -9-
