          United States Court of Appeals
                     For the First Circuit

No. 12-2481

                        JOSEPH M. GARUTI,

                     Petitioner, Appellant,

                               v.

                           GARY RODEN,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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


                             Before

                  Torruella, Dyk,* and Thompson,
                         Circuit Judges.


     Stephen Paul Maidman for petitioner-appellant.
     Jennifer L. Sullivan, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief,
for respondent-appellee.


                        October 23, 2013




     *
      Of the Federal Circuit, sitting by designation.
            DYK, Circuit Judge.         In this habeas appeal, petitioner

Joseph M. Garuti argues that the district court erred in dismissing

his petition without an evidentiary hearing. Garuti argues that,

inter alia, he was entitled to a hearing on his Sixth Amendment

ineffective   assistance        of   counsel   claims   under   Strickland   v.

Washington, 466 U.S. 668 (1984). Because Garuti cannot demonstrate

that   he   has    raised   a   substantial     issue   that    would   require

additional factual development, we affirm.

                                        I

            On March 14, 2006, Garuti was convicted in Massachusetts

Superior Court of first degree murder by reason of extreme atrocity

or cruelty.       Garuti was charged with striking and killing his ex-

wife by running her over with an automobile while picking up his

two young children from her home. After striking his ex-wife with

the automobile, Garuti, a registered nurse, refused to render any

assistance.       Garuti’s defense was that the death was an accident.

On the advice of trial counsel, Garuti did not testify on his own

behalf at trial.

            After Garuti’s conviction, Garuti, now represented by new

counsel, raised the claims now asserted in his habeas petition, in

a motion for a new trial in the Massachusetts trial court.              In this

motion, Garuti argued that he was denied his right to effective




                                       -2-
assistance of counsel under the Sixth Amendment,1 and that he was

prejudiced by his attorney’s deficient representation. Garuti also

argued that, because of counsel’s allegedly deficient performance,

he did not knowingly and intelligently waive his right to testify

on his own behalf.        Garuti relied on his own 36-page affidavit

reciting      various    facts   pertinent       to    his    trial     counsel’s

performance.      Garuti sought to obtain an additional affidavit from

his trial counsel in support of his motion, furnishing trial

counsel    with   a   draft   affidavit.       Trial   counsel   sent    Garuti’s

appellate counsel a letter stating that he had refused to sign the

draft because it was “inaccurate,” without specifying the claimed

inaccuracies.

              On the same day that Garuti filed his new trial motion,

Garuti also moved for an evidentiary hearing in state court in

order    to   more    fully   develop    the    record   on   his     ineffective

assistance claim (by, for example, obtaining testimony from trial

counsel).      Garuti argued that he was entitled to an evidentiary

hearing because his own affidavit raised serious questions of fact


     1
          Garuti argued primarily that his trial counsel’s
performance was deficient because: (1) trial counsel did not
consult with Garuti adequately; (2) trial counsel failed to
properly prepare Garuti to testify at trial; (3) trial counsel did
not properly advise Garuti of the strategic implications of failing
to testify in his own defense; (4) trial counsel did not properly
cross-examine two Massachusetts state troopers who interrogated
Garuti; and (5) trial counsel failed to provide Garuti with an
affidavit in support of his motion for a new trial (i.e., an
affidavit outlining trial counsel’s views as to his own
performance).

                                        -3-
regarding his ineffective assistance claims.          The Commonwealth

argued that no evidentiary hearing was required because Garuti’s

sworn affidavit was conclusory and self-serving.

            On May 12, 2008, the Superior Court denied both the new

trial motion and the motion for an evidentiary hearing, ruling that

“the defendant’s motion for a new trial is hereby denied without a

hearing.”       S.A.   196    (emphasis   removed).      The   court   was

“unpersuaded” by Garuti’s ineffective assistance argument, and

noted that it would not “credit the defendant’s self-serving

contentions.”     S.A. 195.     The trial court also relied on trial

counsel’s statement to Garuti’s appellate counsel that he would not

sign the proposed affidavit because it was “inaccurate.” S.A. 195.

Though trial counsel had not furnished an affidavit, the trial

judge concluded that “it is pure speculation that such an affidavit

would be helpful to [Garuti’s] cause.”       S.A. 195.

            On May 21, 2008, Garuti appealed to the Massachusetts

Supreme Judicial Court.       On June 10, 2009, the Supreme Judicial

Court affirmed.    See Commonwealth v. Garuti, 907 N.E.2d 221 (Mass.

2009) (“SJC Decision”).      The Supreme Judicial Court concluded that

“there was no . . . ineffective assistance of counsel that would

require a new trial,” id. at 230, and that therefore “[the trial

judge] was warranted in not granting [Garuti’s] motion for an

evidentiary hearing on the motion.”          Id. at 232.       Based on a

colloquy Garuti had in open court with the trial judge, the Supreme


                                    -4-
Judicial Court had held that “the record supports the [trial]

judge’s conclusion that the defendant’s waiver of his right to

testify was knowing and intelligent.” Id.

              On August 27, 2010, pursuant to 28 U.S.C. § 2254, Garuti

filed his habeas petition in the district court.                 The petition

reiterated Garuti’s ineffective assistance claims and argued that

the state court’s denial of an evidentiary hearing on these claims

was a violation of due process.        The petition also raised another

constitutional due process claim alleging that Garuti did not

“knowingly and intelligently” waive his right to testify at his

trial.   After filing the petition, Garuti moved for an evidentiary

hearing in the district court.          The magistrate judge denied the

motion for an evidentiary hearing, reasoning that the merits of

Garuti’s § 2254 habeas claim had been reasonably addressed by the

Supreme Judicial Court on the record before it and that, as a

result, Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398

(2011), barred such a hearing. Garuti v. Roden, No. 10-11473-RGS,

2012 WL 381045, at *1 (D. Mass. Feb. 3, 2012).

              Subsequently, on August 24, 2012, the magistrate judge

issued a report and recommendation advising the district judge to

dismiss the habeas petition.         See Garuti v. Roden, No. 10-11473-

FDS,   2012    WL   5866252   (D.   Mass.   Aug.   24,   2012)   (“Report   and

Recommendation”). In recommending that the petition be dismissed,

the magistrate judge reiterated that the evidence in the record


                                      -5-
“provide[d] a constitutionally sufficient basis for the trial court

to rule on the motion for a new trial without an evidentiary

hearing and for the Supreme Judicial Court to affirm that ruling.”

Id. at *20.

             On November 16, 2012, the district court adopted the

magistrate    judge’s    report    and    recommendation,   dismissing   the

petition and holding that the state court record was sufficient to

resolve the case.       See Garuti v. Roden, No. 10-11473-FDS, 2012 WL

5866248 (D. Mass. Nov. 16, 2012) (“District Court Order”).               The

district court issued the certificate of appealability required by

28 U.S.C. § 2253(c), and Garuti timely appealed to this court.

                                         II

             On appeal, Garuti argues that the district court should

have granted him an evidentiary hearing. He urges that the Supreme

Judicial Court’s decisions were based on an incomplete record and

that the rejections of his Sixth Amendment ineffective assistance

and Fourteenth Amendment due process claims were therefore based on

objectively     unreasonable      determinations    of   the   facts   under

§ 2254(d)(2) and unreasonable applications of Supreme Court case

law under § 2254(d)(1).

             We review the district court’s denial of habeas relief

with respect to the claims raised in state court 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)).            We review the district


                                     -6-
court’s refusal to hold an evidentiary hearing for abuse of

discretion. Companio v. O’Brien, 672 F.3d 101, 112 (1st Cir. 2012)

(citing Forsyth v. Spencer, 595 F.3d 81, 85 (1st Cir. 2010)).

                                 A

          We first consider the extent to which the Supreme Court’s

decision in Pinholster bars evidentiary hearings under § 2254(d).

That section provides that

          [a]n 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.

28 U.S.C. § 2254(d).   Under this section, habeas corpus relief is

only available if the state court’s conclusion is based upon a

factual determination that is objectively unreasonable in light of

the evidence presented in the state court proceeding.      Miller-

El v. Cockrell, 537 U.S. 322, 340 (2003).   Garuti argues that the

district court erroneously interpreted Pinholster to categorically

bar hearings in federal habeas proceedings, except in situations




                                -7-
where the state court decision rested exclusively on a finding of

procedural default.

           Pinholster makes clear that “review under § 2254(d)(1) is

limited   to   the    record   that   was   before   the   state   court   that

adjudicated the claim on the merits.”              131 S. Ct. at 1398.     But

Garuti argues that the evidentiary hearing bar applies only to

review under § 2254(d)(1). Subsequent out-of-circuit authority

establishes    that    it   applies    under   §     2254(d)(2)    as   well.

See Blue v. Thaler, 665 F.3d 647, 656 n.26 (5th Cir. 2011)

(“[Section] 2254(d)(2) . . . expressly instructs that the state

court’s decision must be evaluated ‘in light of the evidence

presented in the State Court proceeding.’” (quoting 28 U.S.C.

§ 2254(d)(2))).      We agree that the evidentiary hearing bar applies

to review under both sections of § 2254(d).            This court has noted

specifically that “[r]eview under the ‘fact’ prong [i.e., Section

2254(d)(2)] is limited to the record that was before [the] state

court.”   Brown v. O’Brien, 666 F.3d 818, 822 n.3 (1st Cir. 2012).2

           The difficult question in this case relates to the scope

of Pinholster’s bar on evidentiary hearings under both portions of

§ 2254.   Garuti first argues that, because the state court held no

evidentiary hearing to resolve contested issues of fact, the claims


     2
          See also Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir.
2011) (“Importantly, the evidence against which a federal court
measures the reasonableness of the state court’s factual findings
is the record evidence at the time of the state court’s
adjudication.” (internal citation omitted)).

                                      -8-
at issue here were not “adjudicate[d] on the merits,” as § 2254

requires.    Garuti urges us to follow cases similar to Winston v.

Kelly, 592 F.3d 535, 555-56 (4th Cir. 2010), which declined to

extend § 2254 deference to a state court judgment ruling that such

deference “would be inappropriate because judgment on a materially

incomplete record is not an adjudication on the merits for the

purpose of § 2254(d).”    See also Wilson v. Workman, 577 F.3d 1284,

1293 (10th Cir. 2009) (en banc) (“To dispose of a claim without

considering the facts supporting it is not a decision on the

merits.”); Brown v. Smith, 551 F.3d 424, 428-29 (6th Cir. 2008)

(holding that a petitioner’s “ineffective-assistance-of-counsel

claim ha[d] not been ‘adjudicated on the merits’ because the

counseling notes that form[ed] the basis of the claim were not in

the record before the Michigan Court of Appeals”).

            Although   these   decisions   by   other   courts   appear   to

support Garuti’s position, a recent decision of our court stands in

Garuti’s way.    In Atkins v. Clarke, 642 F.3d 47, 48 (1st Cir.

2011), this court rejected the view that there can be no decision

on the merits within the meaning of § 2254(d) unless there was an

evidentiary hearing.     This court held that those cases on which

Garuti relies were essentially overruled by Pinholster.            See 642

F.3d at 49.     Indeed, Garuti concedes that Atkins “declined to

accept the rationale of the Fourth Circuit in Winston and the Tenth

Circuit in Workman.” Appellant’s Br. 25 n.14.


                                   -9-
            Moreover, the Supreme Court in Harrington v. Richter, __

U.S. ___, ___, 131 S. Ct. 770, 785 (2011), held, consistent with

Atkins, that “[w]hen a federal claim has been presented to a state

court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the

contrary.” 131 S. Ct. at 784-85 (emphasis added).

            After Harrington, the reasoning of Brown and similar

cases on which Garuti relies has been rejected by the Sixth Circuit

itself. Ballinger v. Prelesnik, 709 F.3d 558, 562 (6th Cir. 2013).

Ballinger    concluded      that,    to    the   extent      that   pre-Harrington

decisions    such    as    Workman       and   Brown   are   “inconsistent      with

Harrington’s definition of ‘on the merits,’” such decisions are “no

longer the law.”     Id.    We are, in any event, bound by Atkins, which

is inconsistent with Garuti’s theory that there can be no decision

on the merits if there has been no evidentiary hearing on disputed

facts.

            Garuti alternatively argues that Pinholster does not bar

an evidentiary hearing in district court because the Massachusetts

Court’s    refusal   to    hold     an    evidentiary     hearing    violated   due

process.    The Fifth Circuit has held that due process is violated

where the state court has refused to hold a hearing despite the

existence of a prima facie valid claim.                 See Smith v. Cain, 708

F.3d 628, 634-35 (5th Cir. 2013); Blue v. Thaler, 665 F.3d 647, 657


                                          -10-
(5th Cir. 2011).    This holding is based on the principle that the

state court’s denial of the evidentiary hearing in such cases

“run[s] afoul of the Due Process Clause,” which strips the state’s

ruling of § 2254 deference.       Blue, 665 F.3d at 657. If the state

court’s refusal to hold an evidentiary hearing was a due process

violation, the theory goes, the district court is required to hold

an   evidentiary   hearing.       The    court   reasoned    in   Smith    that

“Pinholster’s limitation on federal evidentiary hearings does not

apply once the district court conclude[s], solely on the basis of

the state court record, that the state trial court unreasonably

applied federal law” (e.g., unreasonably violated the Due Process

Clause).    708 F.3d at 635.

            This court has not addressed this question, and we need

not resolve the issue here because the factual circumstances that

could trigger an exception to Pinholster’s bar on evidentiary

hearings do not exist in this case.          As we discuss below, Garuti

did not present a prima facie valid claim raising a substantial

factual    issue   that   might   have     required   a     hearing   in   the

Massachusetts Superior Court, and hence a hearing in the district

court.     Thus, Pinholster and § 2254(d) barred the district court

from granting an evidentiary hearing, even if we were to agree with

the due process theory articulated in the Fifth Circuit cases

described above.




                                   -11-
                                      B

            In affirming the denial of an evidentiary hearing by the

Massachusetts Superior Court, the Supreme Judicial Court held that

Garuti had not established that substantial factual issues existed.

Garuti contends that this ruling offended basic principles of due

process established in Patterson v. New York, 432 U.S. 197 (1977).

However, Patterson establishes a high bar.             It makes clear that

state law evidentiary procedures are “not subject to proscription

under the Due Process Clause unless ‘[they] offend[] some principle

of justice so rooted in the traditions and conscience of our people

as to be ranked as fundamental.’”            432 U.S. at 201-02 (quoting

Speiser v. Randall, 357 U.S. 513, 523 (1958)). This court has held

that   to   provide   “ground[s]    [for]    federal   habeas   relief,”   an

improper ruling on an evidentiary issue in state court “must be ‘so

arbitrary and capricious as to constitute an independent due

process . . . violation.’”         Coningford v. Rhode Island, 640 F.3d

478, 484 (1st Cir. 2011) (quoting Lewis v. Jeffers, 497 U.S. 764,

780 (1990)).

            Here, the state law procedures employed were reasonable

both on their face and as-applied.          Massachusetts Rule of Criminal

Procedure 30(c)(3) allows a motion for a new trial to be rejected

“without further hearing if no substantial issue is raised by the




                                    -12-
motion or affidavits.”          Mass. R. Crim. P. 30(c)(3); see S.A. 194.3

Garuti provides no argument or analysis suggesting that this

criminal procedure rule itself violates basic principles of due

process.

              There was also nothing unconstitutional about the state

court’s application of its own criminal procedure rules in this

case.       To be sure, the district court likely erred in relying on

Garuti’s former counsel’s letter and his refusal to sign the

proposed affidavit to support the denial of an evidentiary hearing.

Report      and    Recommendation,    2012    WL   5866252,   at    *11   (“Trial

counsel’s         description   of   the   contents   of   the     affidavit   as

inaccurate thus provides further support for the Supreme Judicial

Court’s and trial court’s factual determination vis-á-vis the

adequacy of petitioner’s consultation with trial counsel about the

right to testify.”). The Federal Rules of Evidence generally apply

in habeas proceedings in district courts, Loliscio v. Goord,

263 F.3d 178, 186 (2d Cir. 2001), and trial counsel’s statements

regarding the inaccuracy of the proposed affidavit in the letter to

appellate counsel are hearsay and do not fall under any recognized

hearsay exception. Therefore, they should not have been considered

by the district court in deciding whether a substantial issue of



        3
          Though the trial court opinion cites Mass. R. Crim. P.
30(b)(3), it is clear that the trial court intended to cite Rule
30(c)(3), as this is the rule pertaining to affidavits (no Rule
30(b)(3) exists).

                                       -13-
fact existed.4          Fed. R. Evid. 802.           However, as we now discuss,

quite       apart    from    his    former     counsel’s     statement,     nothing     in

Garuti’s own affidavit and the trial record raises a substantial

factual issue or supports granting an evidentiary hearing.

                                               1

               In attempting to make out a due process violation, Garuti

first argues that the evidence in the record, along with his

affidavit,          raised    a    substantial      Strickland      issue   that   trial

counsel’s consultation with Garuti was inadequate overall.                         Under

Strickland,          the     petitioner       has   the    burden     to    show   by    a

preponderance of the evidence that “(1) counsel’s performance fell

below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for counsel’s error, the result of

the proceedings would have been different.”                         Smullen v. United

States, 94 F.3d 20, 23 (1st Cir. 1996).                    In his affidavit, Garuti

averred that he made “numerous efforts” to contact his trial

counsel and that, “[d]espite [his] repeated efforts . . ., the

amount of time [trial counsel] consulted with [him] about the facts

of [his] case was minimal.”               S.A. 309.       Garuti alleged that he had

two in-person consultations with trial counsel that “were not of

any great duration.”              S.A. 310.    Garuti also stated that he placed


        4
          The Judicial Code concerning habeas corpus makes
provisions for the admission of certain evidence such as
affidavits, 28 U.S.C. § 2246, and full transcripts, 28 U.S.C.
§ 2247, but unsworn statements are not made admissible by the
statute.

                                             -14-
telephone calls to trial counsel but that “[he] was able to speak

to [trial counsel] briefly on only a few of th[ose] occasions.”

S.A. 310.     Finally, Garuti alleged that he wrote many letters to

trial counsel, only received “a few relatively short letters” in

response while he was awaiting trial, and these responsive letters

did not address the facts of the case “in any degree of detail.”

S.A. 310.5

             We find that the allegations in Garuti’s affidavit raise

no substantial issues because they are non-specific in nature and

conclusory. Garuti provides no specific information concerning the

duration of his in-person or telephone conversations with trial

counsel.     Garuti also failed to attach any of the letters sent to

or received from counsel (or any other documentary or testimonial

evidence     in   his   possession)    to    his   affidavit.        Conclusory

allegations are insufficient to raise a substantial factual issue.

United   States    v.   Southard,   700     F.2d   1,   10   (1st   Cir.   1983);

see Mendez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011); see

also Kunkle v. Dretke, 352 F.3d 980, 987 (5th Cir. 2003).                   This

court rejected such inadequate consultation claims where support

was similarly lacking.        See, e.g., McCarthy v. United States,

764 F.2d 28, 31 (1st Cir. 1985) (rejecting claim that counsel

“spent an inadequate amount of time consulting with the petitioner



     5
          Garuti also averred that trial counsel did not review the
police reports pertaining to the incident with him.

                                      -15-
in preparation for [a] sentencing” proceeding).                  The trial court

record also provides no support for Garuti’s claim of inadequate

consultation. Thus, the inadequate consultation claim provided no

basis for an evidentiary hearing.

                                         2

           Garuti next argues that his trial attorney rendered

ineffective assistance because he inadequately consulted with

Garuti regarding Garuti’s version of what happened during his

interrogation    with   two   state      troopers    that   led     to   Garuti’s

confession, and that, as a result, trial counsel failed to properly

cross-examine them. Garuti’s affidavit recites his version of the

facts surrounding his interrogation with the state troopers.

Although it concludes generally that “[trial counsel] did not

consult   with   [Garuti]     in   any       significant   way    regarding   the

anticipated testimony of most of the Commonwealth’s witnesses,”

S.A. 311, it does not contain any specific information pertaining

to trial counsel’s consultation or lack thereof regarding his

cross-examinations of the state troopers.

           This lack of specific allegations, combined with an

analysis of the trial record, makes clear that Garuti has not

raised a substantial issue.        The district court concluded that the

trial transcript showed that “counsel had a firm grasp of the facts

of the case and petitioner’s side of the story” and that “counsel

adequately cross-examined the Commonwealth’s witnesses, including


                                     -16-
the state troopers.” District Court Order, 2012 WL 5866248, at *2.

The   Supreme    Judicial    Court    analyzed    trial   counsel’s        cross

examination of both troopers and found that counsel impeached their

testimony in various respects.       Specifically, the Supreme Judicial

Court explained that trial counsel elicited testimony indicating

that one trooper did not record Garuti’s statement and had a faulty

memory    and   that   the   other   trooper     had   only   been    in     the

interrogation room for five minutes.           The fact that the troopers

had failed to record the interrogation was apparently a fact that

Garuti wanted emphasized by trial counsel, as Garuti has two

separate paragraphs in his affidavit that emphasize the importance

of this lack of a recording.           The Supreme Judicial Court also

explained that trial counsel obtained a key admission from one of

the troopers that indicated that trial counsel was familiar with

Garuti’s side of the story.6          The Supreme Judicial Court also

pointed to questioning of other witnesses suggesting that counsel

was very knowledgeable about the facts of the case, which in its

view “belie[d] [Garuti’s] contention that trial counsel did not

know the the defendant’s side of the story . . . .”           SJC Decision,

907 N.E.2d. at 231.


      6
          Specifically, a trooper admitted to Garuti’s counsel that
Garuti had told the trooper that, immediately before the accident,
he did not “right” (or correct) the wheels to his vehicle before
exiting his ex-wife’s driveway (where the accident occurred).
Presumably, Garuti wanted the jury to believe that he did not know
(or had forgotten) which way the wheels of his car were turned when
he attempted to drive away.

                                     -17-
            To be sure, trial counsel did not question the police

witnesses about their alleged abusive interrogation tactics in

seeking Garuti’s confession, but Garuti has failed to show that the

trial counsel’s alleged inadequacy stemmed from failure to consult

with Garuti.      The decision not to question the police witnesses

regarding   the   alleged   abusive   interrogation   may   have   been   a

judgment that these questions would be neither desirable nor

useful.

            Because we conclude that the record before the state

court made clear that trial counsel had sufficient knowledge of the

interrogation under Strickland, and Garuti’s conclusory affidavit

does not undermine this conclusion, Garuti has not raised a

substantial factual issue.

                                      3

            Finally, Garuti makes Strickland arguments relating to

his decision not to testify at trial. He contends that counsel did

not adequately prepare Garuti to testify or explain fully the

strategic implications of Garuti’s decision not to testify. On the

issue of his decision not to testify, however, the Supreme Judicial

Court pointed to evidence in the record suggesting that trial

counsel performed reasonably.         First, it explained that Garuti

admitted in his own affidavit that trial counsel “emphatically told

[Garuti] his view of the risks I faced if I testified.”               SJC

Decision, 907 N.E.2d at 232; see also S.A. 312.       Trial counsel had


                                  -18-
been particularly concerned that, given the troubled relationship

Garuti had had with his ex-wife, Garuti would vilify her during the

testimony, which would likely result in a guilty verdict.                   The

Supreme Judicial Court explained that Garuti did not dispute that

this was sound advice.7          Although the Supreme Judicial Court

recognized that Garuti’s primary complaint was that trial counsel

did not inform him of the benefits of testifying (i.e., that Garuti

could tell his side of the story), the Supreme Judicial Court

concluded that trial counsel’s emphasis on risks over benefits “was

not manifestly unreasonable.” See SJC Decision, 907 N.E.2d at 232.

               Garuti again argues that the Supreme Judicial Court

unreasonably applied the facts because it did not have the benefit

of a complete record.        However, it is clear again that he has not

raised a substantial         issue.    Garuti’s affidavit concedes that

trial       counsel   “emphatically   told   [Garuti]   his    views   of   the

risks . . . if [Garuti] testified.”           S.A. 312.       The record here

establishes that it would not have been unreasonable for an

attorney in trial counsel’s shoes to have primarily emphasized the

risks of testifying over the benefits.

               As this court held in Lema v. United States, 987 F.2d 48,

52 (1st Cir. 1993), “[u]naccompanied by coercion, legal advice

concerning exercise of the right to testify infringes no right


        7
          The Supreme Judicial Court also noted that Garuti’s
testimony could have opened the door to a rebuttal witness who
could have testified regarding the victim’s fear of the defendant.

                                      -19-
[under Strickland], but simply discharges defense counsel’s ethical

responsibility to the accused.”   Id. (internal citations omitted);

see also United States v. Teague, 953 F.2d 1525, 1534-35 (11th Cir.

1992)(en banc) (affirming the district court’s rejection of a

Strickland claim where “the evidence failed to show that the

Defendant’s will was ‘overborne’ by his counsel”).     There was no

such coercion here, as Garuti admits in his affidavit that trial

counsel “did not coerce [him] into making [his] decision not to

testify.” S.A. 314.     Moreover, in Lema, the attorney emphasized a

risk of testifying (in that case, divulging prior convictions),

just as Garuti’s trial counsel did here.   See Lema, 987 F.2d at 50-

53; see also Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir.

1996) (concluding that trial counsel’s emphasis on certain risks

was “the best possible advice” and rejecting the defendant’s

Strickland claim).    Garuti has not raised a substantial factual

issue as to this Strickland claim.

          Relatedly, Garuti also argues that, given trial counsel’s

allegedly deficient explanation of the benefits and risks of

testifying, he could not have knowingly and intelligently waived

his right to testify.     See Johnson v. Zerbst, 304 U.S. 458, 464

(1938) (requiring that constitutional rights be waived via “an

intentional relinquishment or abandonment”).     This contention is

also incorrect. The Supreme Judicial Court cited a colloquy that

Garuti had with the trial judge, in which Garuti “affirmed that his


                                 -20-
decision not to testify was made after adequate consultation with

his counsel and was his own decision” and stated that trial counsel

“was acting most certainly in his best interests.”          SJC Decision,

907 N.E.2d at 232 (internal quotation omitted).        Garuti reaffirmed

his waiver after “the trial judge briefly suspended the colloquy to

allow petitioner to consult counsel one last time before committing

to his waiver.”    District Court Order, 2012 WL 5866248, at *2.         In

his affidavit, Garuti admits that “[t]he trial judge held [this]

colloquy    with   [him]   regarding   [his]   right   to   testify,”   and

“[Garuti] understood that it was entirely [his] decision [of]

whether or not to testify.”     S.A. 313.8     Garuti has again failed to

raise a substantial question that might require an evidentiary

hearing.9


     8
          This court has held in other contexts, moreover, that
“knowing and intelligent” waivers of rights occur where “the
defendant is aware of the risks” associated with his decision.
See, e.g., Tuitt v. Fair, 822 F.2d 166, 176 (1st Cir. 1987)
(discussing waiver of right to counsel).
     9
          Garuti also raises a claim that his former trial
counsel’s refusal to furnish an affidavit describing his conduct,
in and of itself, constituted ineffective assistance of counsel.
But this claim also does not raise a substantial issue.         The
Supreme Judicial Court determined that an attorney does not have “a
duty to provide an affidavit to accompany a defendant’s motion for
a new trial.” SJC Decision, 907 N.E.2d at 230. It “agree[d] with
the [trial] judge that even if there were a duty to provide an
affidavit, it is pure speculation that the affidavit would have
been helpful.” Id. Based on the foregoing analysis, we agree and
find this argument to be without merit.

          Garuti further claims that his former trial counsel
failed to prepare him to testify. Even if Garuti were correct,
this raises no Strickland issue. Given Garuti’s decision not to

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            To the extent that Garuti contends that in other respects

he has satisfied the standards of § 2254(d), even without an

evidentiary hearing, there is no merit to this claim.

                                      III

            Because   it    is    clear   here    that    Garuti’s    claim    was

adjudicated on the merits by the Supreme Judicial Court, and Garuti

has   not   raised    a    substantial    issue    that    might     require   an

evidentiary   hearing,      the   judgment    of   the    district     court   is

affirmed.



                                   AFFIRMED




testify, the alleged failure to prepare him does not meet the
prejudice prong of the Strickland test.

                                     -22-
