source: Caselaw Access Project

author: KAYATTA, Circuit Judge.

license: Public Domain

text:
    Ronda KAUFMAN, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. CVS CAREMARK CORPORATION; CVS Pharmacy, Inc., Defendants, Appellees.
    No. 16-1199
    United States Court of Appeals, First Circuit.
    September 6, 2016

      Brian D. Penny, with whom Goldman Scarlato & Penny, P.C., Wayne, PA, was on brief, for appellant.
    Robert M. Andalman, with whom A&G Law LLC was on brief, for appellees.
    Before Torruella, Kayatta, and Barron, Circuit Judges.
   KAYATTA, Circuit Judge.

CVS Pharmacy, Inc. (“CVS”) sells a Vitamin E dietary supplement with a label that touts the product as supporting “heart health.” Having purchased CVS’s Vitamin E product, Ronda Kaufman alleges that CVS’s label deceives consumers because no scientifically valid studies show that the label’s “heart health” statements are both truthful and not misleading. Finding that federal law does not preempt Kaufman’s effort to maintain this action under New York’s consumer protection law, we reverse the district court’s order dismissing Kaufman’s complaint.

I. Background

Because the district court dismissed this lawsuit on a motion to dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6), our review is de novo and we assume that the facts alleged in the complaint, plus reasonable inferences drawn from those facts, are true. In re Celexa & Lexapro Mktg. & Sales Practices Litig., 779 F.3d 34, 39 (1st Cir. 2015).

Ronda Kaufman purchased CVS-brand Vitamin E 400 International Units (“IU”) Softgels (100 count) at a CVS located in Plainview, New York. The bottle containing the Vitamin E product bore the following label:

Kaufman alleges that in deciding to purchase the product, she relied on the label.

Kaufman now claims that there are no scientifically valid studies supporting CVS’s “heart health” statements. Rather, she alleges that various studies evaluating Vitamin E “demonstrate that vitamin E and vitamin E supplementation offer no cardiovascular benefit” and “do[ ] not reduce the risk of suffering a cardiovascular event, such as a heart attack, nor [do they] reduce the risk of dying from cardiovascular disease.” She adds that one study reflects “that those taking vitamin E had higher rates of heart failure and were more likely to be hospitalized for heart failure,” while another study found “an increase in mortality that progressively increased as daily dosage exceeds 150 iu.” The complaint further states that “[a]ll variations of [CVS’s] pill-type vitamin E products exceed the 150 iu level shown to increase mortality in 'this study.” As a result, she alleges, CVS’s representation that its product supports heart health is misleading.

Kaufman marshalled these allegations in service of a putative class action complaint that advances two counts at issue on appeal: violation of the New York Consumer Protection Act, N.Y. Gen. Bus. Law § 349 (“NYCPA section 349”), which makes unlawful “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” in New York, id. § 349(a), and a piggyback common law claim of unjust enrichment. The district court found that federal law preempts both of these statements because CVS’s label on its Vitamin E product complied with labeling requirements for dietary supplements under the Federal Food Drug and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301 et seq.; see also id. § 3434(a)(5). Kaufman v. CVS Caremark Corp., No. 14-216-ML, 2016 WL 347324, at *8 (D.R.I. Jan. 28, 2016).

II. Discussion

The parties initially debate whether the district court erred in requiring Kaufman to state with particularity the circumstances constituting the alleged deception at issue in this case under Federal Rule of Civil Procedure 9(b). We agree with CVS that Kaufman waived any objection to that requirement, having failed twice to argue in the district court that Rule 9(b) did not apply. See United States v. Argentine, 814 F.2d 783, 791 (1st Cir. 1987). At the same time, we also find that the applicability of Rule 9(b) has no bearing on any possible disposition of this appeal. The circumstances to be stated with particularity under Rule 9(b) generally consist of “the who, what, where, and when of the allegedly [misleading]' representation.” Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004) (quoting Powers v. Bos. Cooper Corp., 926 F.2d 109, 111 (1st Cir. 1991)). CVS makes no argument that the complaint fails to provide this particularity. And, indeed, it does contain sufficient particularity: CVS is the “who”; the heart health statements are the “what”; the label is the “where”; and the occasion on which Kaufman purchased the product is the “when.” Therefore, as CVS acknowledges, “[t]he District Court’s decision did not turn on whether the applicable pleading standard was pursuant to Fed. R. Civ. P. 8(a) or 9(b).” Neither does our decision.

Rather, the pivotal question on this appeal is whether Kaufman’s complaint plausibly describes conduct by CVS that fell outside the preemptive safe harbor provided by federal law.

A. FDCA Preemption

The FDCA circumscribes Kaufman’s ability to bring this claim against CVS. Section 3434(a)(5) of the FDCA provides that no state may “establish ... any requirement respecting any claim of the type described in section 343(r)(l) of [the FDCA], made in the label or labeling of food that is not identical to the requirement of section 343(r).” 21 U.S.C. § 343-1(a)(5). Section 343(r)(l), in turn, governs statements, among others, that concern a nutrient’s relationship “to a disease or a health-related condition.” Id. § 343(r)(l)(B). The parties agree (and we therefore assume) that section 343(r)(6), which provides the requirements for statements made on labels of dietary supplements, relates back to section 343(r)(l)(B), and section 343(r)(6) statements are therefore governed by section 343-l(a)(5) preemption. Effectively adding belt to suspenders, the New York law under which Kaufman seeks to proceed independently welcomes the preemptive force of the federal statute, providing that compliance with applicable federal rules and regulations provides a “complete defense” to a claim under NYCPA section 349(a). N.Y. Gen. Bus. Law § 349(d). On all of this, the parties agree.

The net effect of the foregoing is that CVS must prevail if its label satisfies the requirements of FDCA section 343(r), but neither federal nor state law poses any bar to recovery under NYCPA section 349 to the extent that recovery is predicated on a failure by CVS to comply with the requirements of FDCA section 343(r). Accordingly, we turn our attention to determining whether the complaint plausibly alleges conduct by CVS that violates the requirements of FDCA section 343(r).

B. Compliance with FDCA Labeling Requirements

Section 343(r)(6) of the FDCA provides that

a statement for a dietary supplement may be made if—
(A) the statement ... describes the role of a nutrient or dietary ingredient intended to affect the structure or function in humans ...,
(B) the manufacturer of the dietary supplement has substantiation that such statement is truthful and not misleading, and
(C) the statement contains, prominently displayed and in boldface type, the following: “This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease”.
A statement under this subparagraph may not claim to diagnose, mitigate, treat, cure, or prevent a specific disease or class of diseases. If the manufacturer of a dietary supplement proposes to make a statement described in the first sentence of this subparagraph in the labeling of the dietary supplement, the manufacturer shall notify the Secretary no later than 30 days after the first marketing of the dietary supplement with such statement that such a statement is being made.

21 U.S.C. § 343(r)(6).

CVS’s label for its 400 IU Vitamin E supplement makes four statements that are subject to the requirements of section 343(r)(6): that Vitamin E “supports antioxidant health”; that Vitamin E helps “maintain healthy blood vessels”; that Vitamin E “supports heart health”; and that Vitamin E “supports the immune system.” The parties agree — and we therefore presume without deciding — that these statements are all what the Food and Drug Administration (“FDA”) calls “structure/function claims” under FDCA section 343(r)(6)(A). See Regulations on Statements Made for Dietary Supplements Concerning the Effect of the Product on the Structure or Function of the Body, 65 Fed. Reg. 1000, 1002 (Jan. 6, 2000) (codified at 21 C.F.R. pt. 101). So-called strueture/funetion claims are statements that “describe[ ] the role of a nutrient or dietary ingredient intended to affect the structure or function in humans.” 21 U.S.C. § 343(r)(6)(A). The manufacturer of a dietary supplement may make such statements if the manufacturer both “has substantiation that such 'statement is truthful and not misleading,” id. § 343(r)(6)(B), and includes on the label a prominent disclaimer stating that the FDA has not evaluated the label’s statement and that the “product is not intended to diagnose, treat, cure, or prevent any disease,” id. § 343(r)(6)(C). The parties agree, and we therefore again assume without deciding, that the label in this case contains just such a disclaimer. We therefore limit our inquiry to determining whether the complaint plausibly alleges that CVS lacks “substantiation” that the “support” and/or “maintain” structure/function statements are “truthful and not misleading.”

In urging an affirmative answer to this question, Kaufman offers no developed argument that CVS lacks substantiation that Vitamin E functions as an antioxidant. Kaufman also does not develop any argument that challenges the sufficiency of CVS’s substantiation of the statements that Vitamin E supports the immune system or that it helps maintain healthy blood •vessels. Instead, training her critique on the label’s several statements that Vitamin E “supports heart health,” Kaufman as-' serts that there exists no substantiation that such a description of the nutrient’s function is truthful and not misleading.

The FDCA does not define the term “substantiation.” FDA guidance, however, advances a common sense interpretation of “substantiation,” also adopted by the Federal Trade Commission, as meaning “competent and reliable scientific evidence.” Food & Drug Admin., Guidance for Industry: Substantiation for Dietary Supplement Claims Made Under Section 403(r)(6) of the Federal Food, Drug, and Cosmetic Act

Part I.B. (Dec. 2008), http://www.fda.gov/ food/guidanceregulation/guidancedocum entsregulatoryinformation/dietary supplements/ucm073200.htm (last accessed Aug. 22, 2016) (hereinafter “Guidance for Industry”). Kaufman’s express allegation that there are no “scientifically valid studies” substantiating CVS’s heart health statements fairly implies that CVS has no competent and reliable evidence to support its heart health statements. This allegation would normally suffice to save from preemption Kaufman’s attempt to impose liability on CVS for misleading customers because the imposition of such a liability would not establish any requirement that differs from the requirement of section 343(r)(6)(B) — that CVS must have substantiation for its heart health statements. See 21 U.S.C. § 343-l(a)(5); Dachauer v. NBTY, Inc., No. 16-cv-00216-VC, 2016 WL 3176612, at *1 (N.D. Cal. June 3, 2016).

CVS, however, contends that Kaufman effectively shot herself in the foot by describing in the complaint seven studies of Vitamin E that, CVS argues, provide the required substantiation. See Trujillo v. Walgreen Co., No. 13 CV 1852, 2013 WL 4047717, at *3 (N.D. Ill. Aug. 9, 2013) (plaintiff “effectively pled herself out of Court” by not disputing that Vitamin E is an antioxidant and that antioxidants have been shown to contribute to cardiovascular health). In CVS’s words, the studies show Vitamin E’s “salutary functions in the body” are “scientific fact.”

We agree with CVS that the district court’s, and now our, consideration of the studies cited in the complaint is appropriate even under Rule 12(b)(6) where the complaint itself directly references and purports to summarize the studies. See Giragosian v. Bettencourt, 614 F.3d 25, 27-28 (1st Cir. 2010). That consideration though, provides no license to engage at this stage of litigation in rejecting plausible readings of those studies. See Abdallah v. Bain Capital LLC, 752 F.3d 114, 119 (1st Cir. 2014) (“no fact finding” in assessing complaint under Rule 12(b)(6)). Rather, we look at the studies for a limited purpose: do the studies on their face render implausible Kaufman’s claim that there exist no scientifically valid studies establishing that CVS’s heart health statements are truthful and not misleading? For at least two independent reasons, they do not.

First, read in chronological order and with attention to what they presume and what they find, the studies do not support a judicial declaration under Rule 12(b)(6), unaided by expert testimony, that they substantiate the heart health statements. As CVS itself concedes, none of the studies were designed to test the statement that Vitamin E functions to support heart health. Rather, most of the studies presumed that to be so, and instead tested the hypothesis that Vitamin E prevents certain diseases. See, e.g., I-Min Lee et al., Vitamin E in the Primary Prevention of Cardiovascular Disease and Cancer— The Women’s Health Study: A Randomized Controlled Trial, 294 J. Am. Med. Ass’n 56, 56 (2005) (“Vitamin E has antioxidant properties ... leading to the hypothesis that it can prevent [cardiovascular disease].” (emphasis supplied)); Eva Lonn et al., Effects of Long-Term Vitamin E Supplementation on Cardiovascular Events and Cancer: A Randomized Controlled Trial, 293 J. Am. Med. Ass’n 1338, 1338 (2005) (“Epidemiological data indicate an inverse association between cardiovascular risk and vitamin E intake from dietary sources and/or supplements.” (emphasis supplied)); Edgar R. Miller III et al., Meta-Analysis: High-Dosage Vitamin E Supplementation May Increase All-Cause Mortality, 142 Annals of Internal Med. 37, 37 (2005) (“On the basis of the premise that vitamin E reduces oxidative stress, many clinical trials have tested vitamin E supplementation as a therapy to prevent various chronic diseases.” (emphasis supplied)); Howard D. Sesso et al., Vitamins E and C in the Prevention of-Cardiovascular Disease in Men — The Physicians’ Health Study II Randomized Controlled Trial, 300 J. Am. Med. Ass’n 2123, 2123 (2008) (“Basic research studies suggest that vitamin E ... and other antioxidants reduce cardiovascular disease by trapping organic free radicals, by deactivating excited oxygen molecules, or both, to prevent tissue damage.” (emphasis supplied)); Paul G. Shekelle et al., Effect of Supplemental Vitamin E for the Prevention and Treatment of Cardiovascular Disease, 19' J. Gen. Internal Med. 380, 380 (2004) (referencing literature “suggesting] a beneficial effect of antioxidant-rich foods, as well as specific antioxidants,” such as Vitamin E (emphasis supplied)); Salim Yu-suf et al., Vitamin E Supplementation and Cardiovascular Events in High-Risk Patients, 342 New Eng. J. Med. 154, 154 (2000) (“Observational and experimental studies suggest that the amount of vitamin E ingested in food and in supplements is associated with a lower risk of coronary heart disease and atherosclerosis” (emphasis supplied)).

Second, the studies Kaufman cites, including the results of a randomized controlled trial, are also plausibly construed, in the aggregate, as indicating that Vitamin E, in dosages such as that packaged by CVS, can even damage the heart. One study, for example, found that in some populations, increasing Vitamin E intake by supplementation may increase the risk for heart failure. See Lonn et al., supra page 12, at 1346. And another found that “high-dosage” Vitamin E supplements of 400 IU or more — the very dosage that Kaufman purchased — may increase all-cause mortality. Miller III et al., supra page 13, at 37, 40. This indication, which the studies at least render plausible, would seem to mean that Vitamin E can play a role in harming heart health.

The statute grants CVS a preemptive license to describe in its label “the role of a nutrient or dietary ingredient.” 21 U.S.C. § 343(r)(6)(A) (emphasis supplied). In so doing, Congress did not similarly license a description of “a role” of the nutrient that may mislead the consumer by omitting mention of a directly related, conflicting role. If Vitamin E’s actual role is both to support and to harm heart health, depending on the dosage actually supplied, then a label on a product presented in the harmful dosage yet revealing only the former aspects of the vitamin’s role relative to health is incomplete in a way that could be material to the consumer’s exercise of choice in deciding whether to buy the product.

This conclusion finds textual support in section 321(n) of the FDCA, which provides that when evaluating whether an article (i.e., a product) is misbranded because the labeling is misleading, we “shall” take into account, among other things,

not only representations made or suggested by [the] statement ... but also the extent to which the labeling ... fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling ... relates under the conditions of use prescribed in the labeling ... or under such conditions of use as are customary or usual.

Id. § 321(n).

This statutory command that we consider the omission of material facts fits hand-in-glove with the mandate of section 343(r)(6)(B) that the seller’s substantiation show that a health statement is both “truthful and not misleading.” Id. § 343(r)(6)(B). More broadly, it aligns well with the FDA’s stated mission to “promote,” id. § 393(b)(1), and “protect the public health by ensuring that ... [dietary supplements] are safe ... and properly labeled,” id. § 393(b)(2)(A). If a particular dietary supplement functions to harm health in the supplied or recommended dosage, a label claiming that the product supports health is plausibly viewed as misleading within the meaning of section 343(r)(6)(B). To rule otherwise would be to treat the FDCA as granting license to entice consumers to unwittingly incur risk and harm.

In so reasoning, we do not accept Kaufman’s argument that evidence showing a supplement does not reduce heart disease necessarily implies that the nutrient itself has no function in maintaining heart health. On the contrary, Congress has expressly specified that sellers of dietary supplements can “deseribe[ ] the role of a nutrient ... intended to affect the structure or function in humans,” id. § 343(r)(6)(A), even while simultaneously disavowing any claim that the product is intended “to ... prevent any disease,” id. § 343(r)(6)(C). And the FDA has in turn promulgated a regulation blessing terms like “promote,” “maintain,” and “support,” so long as the seller has substantiation for the description. See Regulations on Statements Made for Dietary Supplements Concerning the Effect of the Product on the Structure or Function of the Body, 65 Fed: Reg. at 1014. Thus, any nutrient or ingredient that, for example, the heart needs might be described as supporting heart health, even if taking the supplement form of the nutrient actually does nothing to improve the health of one’s heart, as long as the claimed beneficial function is substantiated and the description of the nutrient’s role is not misleadingly incomplete. And while Kaufman plausibly suggests that the drawing of such a distinction between the ingredient’s function and its lack of any impact on morbidity likely tricks many consumers who unwittingly think that such a product will reduce the likelihood of poor heart health, this is a form of finesse that the statute and the regulations allow. See, id. (suggesting increased consumer “choice” as a reason for allowing such marketing). On the other hand, a section 343(r)(6) disclaimer, while legally sufficient to immunize a structure/function claim that is truthful and not misleading, does not immunize a structure/function claim for which the manufacturer lacks the required substantiation or that misleadingly fails to disclose the harmful aspects of the nutrient’s structure/function.

As we have already noted, we read the studies referenced in the complaint only to see if, on their face, they render implausible Kaufman’s allegation that substantiation for CVS’s heart health statements does not exist. CVS might have other studies that paint a different and more credible overall picture. Expert testimony might also shed a different light than that cast by the complaint or by a bare reading of the studies unaided by additional context. The point, simply, is that the cited studies do not on their face render implausible the allegation that CVS lacks substantiation that the “heart health” and “supports heart health” statements are truthful and not misleading descriptions of the function of Vitamin E supplements in humans. For purposes of Rule 12(b)(6), it therefore follows both that Kaufman has adequately pled that CVS’s labeling of its Vitamin E supplement is not in keeping with the requirements of FDCA section 343(r), and that federal law does not, therefore, preempt application of New York state law for the purpose of holding CVS accountable for misleading consumers by failing to satisfy those requirements. With CVS advancing no argument that unsubstantiated and deceptive health claims made in marketing a consumer product are not actionable under New York law, we therefore reverse the dismissal of Kaufman’s claim under NYCPA section 349.

C. Unjust Enrichment

Kaufman’s claim of unjust enrichment under New York law rests necessarily on her allegation that CVS’s label was “deceptive.” CVS correctly observes that if the label does not violate the FDCA’s requirements, the unjust enrichment claim also necessarily fails. See Cleary v. Philip Morris, Inc., 656 F.3d 511, 517 (7th Cir. 2011) (“[I]f an unjust enrichment claim rests on the same improper conduct alleged in another claim, then the unjust enrichment claim will be tied to this related claim— and, of course, unjust enrichment will stand or fall with the related claim.”). The district court agreed, and dismissed the unjust enrichment claim. Kaufman, 2016 WL 847324, at *8.

Given our finding that the complaint adequately alleges that the label’s statements were misleading in a manner that violated the requirements of section 343(r), it follows that the unjust enrichment count is also not preempted to the extent that its reference to deceptive conduct is solely to the conduct that would render the label misleading under section 343(r). CVS offers no other grounds for dismissing the unjust enrichment count. We therefore reverse the dismissal of that count for all the reasons set forth concerning the NYCPA section 349 count.

III. Conclusion

The district court’s dismissal of Kaufman’s complaint is reversed.

      . Stephen P. Fortmann et al., Vitamin and Mineral Supplements in the Primary Prevention of Cardiovascular Disease and Cancer: An Updated Systematic Evidence Review for the U.S. Preventive Services Task Force, 159 Annals of Internal Med. 824 (2013); I-Min Lee et al., Vitamin E in the Primary Prevention of Cardiovascular Disease and Cancer — The Women's Health Study: A Randomized Controlled Trial, 294 J. Am. Med. Ass'n 56 (2005); Eva Lonn et al., Effects of Long-Term Vitamin E Supplementation on Cardiovascular Events and Cancer: A Randomized Controlled Trial, 293 J. Am. Med. Ass'n 1338 (2005); Edgar R. Miller III et al., Meta-Analysis: High-Dosage Vitamin E Supplementation May Increase All-Cause Mortality, 142 Annals of Internal Med. 37 (2005); Howard D. Sesso et al., Vitamins E and C in the Prevention of Cardiovascular Disease in Men — The Physicians' Health Study II Randomized Controlled Trial, 300 J. Am. Med. Ass’n 2123 (2008); Paul G. Shekelle et al., Effect of Supplemental Vitamin E for the Prevention and Treatment of Cardiovascular Disease, 19 J. Gen. Internal Med. 380 (2004); Salim Yusuf et al., Vitamin E Supplementation and Cardiovascular Events in High-Risk Patients, 342 New Eng. J. Med. 154 (2000).

      . The regulations promulgated by the FDA define a "[djisease or health-related condition” as “damage to an organ, part, structure, or system of the body such that it does not function properly (e.g., cardiovascular disease), or a state of health leading to such dysfunctioning (e.g., hypertension).” 21 C.F.R. § 101.14(a)(5). A health claim, in turn, is defined as "any claim made on the label or in labeling of a food, including a dietary supplement, that expressly or by implication ... characterizes the relationship of any substance to a disease or health-related condition.” Id. § 101.14(a)(1).

      . Paragraph 1 of the complaint reads:
      CVS markets, sells, and distributes six versions of vitamin E supplements. On all vitamin E packages, Defendants represent the product is intended for “heart health.’’ However, numerous double-blind, placebo-controlled studies demonstrate that vitamin E and vitamin E supplementation offer no cardiovascular benefit. Vitamin E does not reduce the risk of suffering a cardiovascular event, such as a heart attack, nor does it reduce the risk of dying from cardiovascular disease. There are no comparable, scientifically valid studies supporting Defendants’ representation.
      We read "representation” in the last sentence as referring to what CVS is said to "represent” in the first sentence (the heart health statement that the parties agree is a function/structure claim).

      . A 2012 report by the Inspector General revealed that many dietary supplements failed to meet federal requirements for making structure/function claims. Daniel R. Levinson, Inspector General, Dietary Supplements: Structure/Function Claims Fail to Meet Federal Requirements (Oct. 2012), https://oig.hhs. gov/oei/reports/oei-01 -11 -00210.pdf.

      . See Lonn et al., supra note 1. The FDA has indicated that such trials are the "gold standard,” whereas animal studies and in vitro studies such as those relied on by CVS and the district court cannot, by themselves, provide adequate substantiation. See Guidance for Industry, supra page 10.

      . "Labeling,” includes the product’s "label,” 21 U.S.C. § 321(m), which includes "written, printed, or graphic matter upon the immediate container of any article,” id. § 321(k).


author: McAULIFFE, District Judge.

text:
    James J. SMITH, Petitioner, Appellant, v. Thomas DICKHAUT, Respondent, Appellee.
    No. 15-1770
    United States Court of Appeals, First Circuit.
    September 7, 2016

      Stewart T. Graham, Jr., with whom Graham & Graham was on brief, for appellant.
    Maura Healey, with whom Jennifer K, Zalnasky and the Office of the Massachusetts Attorney General was on brief, for appellee.
    Before Kayatta and Barron, Circuit Judges, McAuliffe, District Judge.

       Of the District of New Hampshire, sitting by designation.

   McAULIFFE, District Judge.

Petitioner, James Smith, was convicted by a jury in the Commonwealth of Massachusetts of first-degree murder, armed home invasion, and unlawful possession of a firearm. His motion for a new trial was denied and he appealed both the denial of that motion and his convictions to the Massachusetts Supreme Judicial Court (“SJC”). The SJC consolidated those appeals and reversed Smith’s conviction for armed home invasion, but upheld the remaining convictions. The SJC also affirmed the trial judge’s denial of Smith’s motion for a new trial. Commonwealth v. Smith, 459 Mass. 538, 946 N.E.2d 95 (2011). Smith then sought federal habeas corpus relief from the United States District Court for the District of Massachusetts, claiming that he had been deprived of his constitutionally protected right to effective legal representation when trial counsel failed to fully and properly advise him about his right to testify at trial. In a closely related claim, Smith also asserted that, because he waived his right to testify based upon counsel’s erroneous (and constitutionally deficient) advice, that waiver was invalid. And, finally, Smith asserted that trial counsel provided deficient representation by failing to marshal and present exculpatory evidence in his defense. The district court denied the petition and Smith has appealed. We affirm.

I. Standard of Review

The district court’s denial of Smith’s petition for habeas corpus relief is reviewed de novo. Barbosa v. Mitchell, 812 F.3d 62, 66 (1st Cir. 2016).

Since passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C. § 2254, the power to grant federal habeas relief to a state prisoner with respect to claims adjudicated on the merits in state court has been substantially limited. A federal court may disturb a state conviction if the state court’s resolution of the constitutional issues before it “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). The Supreme Court has explained the distinction between decisions that are “contrary to” clearly established federal law, and those that involve an “unreasonable application” of that law, as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably- applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Court also noted that an “incorrect” application of federal law is not necessarily an “unreasonable” one.

[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.... Under § 2254(d)(l)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established-federal law-erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 410-11, 120 S.Ct. 1495 (emphasis in original). So, to prevail, a state habeas petitioner must demonstrate that “the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Alternatively, federal habeas relief may be granted if the state court’s adjudication “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)(2). Section 2254(e)(1) goes on to provide that “a determination of a factual issue made by a State court shall be presumed to be correct” and the habeas petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”

Here, the parties disagree at the outset about the degree of deference we should afford to factual findings made by the state court. Pointing to the language of § 2254(d)(2), Smith asserts that he need only demonstrate that such factual findings were “unreasonable.” The Commonwealth, on the other hand, says factual findings made by the state court are, under § 2254(e)(1), presumed to be correct, and Smith bears the. burden of rebutting that presumption by clear and convincing evidence. As this court has previously noted, the circuit courts of appeal disagree as to the proper interplay between §§ 2254(d)(2) and 2254(e)(1). See, e.g., John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender, 507 F.3d 50, 58-59 (1st Cir. 2007).

The Supreme Court seemed poised to clarify the point in 2010, when it granted certiorari to answer “the question of how §§ 2254(d)(2) and (e)(1) fit together.” Wood v. Allen, 558 U.S. 290, 300, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). In the end, however, the Court concluded that the outcome of the case before it did “not turn on any interpretive difference regarding the relationship between these provisions.” Id. Even giving the petitioner in Wood the benefit of § 2254(d)(2)’s standard (which is less deferential to state court findings of fact), the Court concluded that he was not entitled to habeas relief because the state court’s findings of fact were not unreasonable in light of the evidence presented. Id. at 301, 130 S.Ct. 841.

This court has noted the Supreme Court’s silence on precisely how section 2254(d)(2) and 2254(e)(1) fit together, and it has yet to address a case in which it was necessary to resolve that issue. See, e.g., Robidoux v. O’Brien, 643 F.3d 334, 338 n.3 (1st Cir. 2011) (“We have previously declined to delve into the relationship between subsections (d)(2) and (e)(1), as has the Supreme Court, and again have no need to do so.”) (citations omitted). At the same time, this circuit has routinely held petitioners to the § 2254(e)(1) “clear and convincing” standard without reference to § 2254(d)(2), albeit not in a case in which resolving the fit between the two sections would appear to have made any difference. See, e.g., Linton v. Saba, 812 F.3d 112, 116 (1st Cir. 2016) (“We must accept the state court findings of fact unless convinced by clear and convincing evidence that they are in error'.”) (citations and internal punctuation omitted); Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) (“State court findings of fact are presumed to be correct unless the petitioner rebuts this presumption of correctness with clear and convincing evidence.”) (citations and internal punctuation omitted). The record in this case allows us to proceed in similar fashion, because even if we were to assess the state court’s factual determinations under the more petitioner-friendly standard set out in § 2254(d)(2), rather than the more deferential standard in 2254(e)(1), Smith would still not be entitled to the relief he seeks.

II. Factual Background

In light of the evidence presented at Smith’s trial and the jury’s verdict, the SJC found the relevant facts underlying his convictions to be as follows. In June of 2006, Smith moved into the apartment of Patricia Higgs in North Adams, Massachusetts. During his relatively brief stay, Smith sold a variety of drugs from Higgs’ apartment, including cocaine, crack, and heroin. He employed Higgs in the business, compensating her with money and drugs. Eventually, however, Higgs and Smith had a falling out and she asked him to leave. About two weeks later, Kijona Osmond, the murder victim, moved into Higgs’ apartment and began operating a similar drug-trafficking business. At that point, five people were living in the apartment including Higgs, Osmond, and a woman named Angela Stark.

On July 26, 2006, at approximately 2:00 a.m., Smith went to a Dunkin’ Donuts near Higgs’ apartment and spoke with one of the store’s employees. Shortly before leaving, he posed an unusual question: Whether she would contact the police if she saw someone get shot. Smith then went to Higgs’ apartment and knocked on the door. Higgs opened the door and saw Smith standing in the threshold holding a firearm. Smith grabbed Higgs by the neck and threw her against the wall and, while holding the weapon to her head, demanded to know where the “stuff’ was. Higgs said, “Please don’t do this, my baby is in the other room.” Stark, who was in the kitchen when Smith entered the apartment, confirmed the violent nature of his entry and testified that Higgs pleaded with him, “don’t do it, my baby is here.”

At that point, Osmond tried to make his way to' the kitchen, where the back door to the apartment was located. Smith released Higgs and attempted to grab Osmond’s shirt. Osmond turned to confront Smith, at which point Smith fired a single round into Osmond’s neck. Osmond immediately collapsed onto his stomach, with the left side of his face on the floor. Smith stepped over Osmond, straddled his prone body, and fired a second (fatal) shot into the back of his head. Smith then leaned down to remove money and drugs from Osmond’s pockets and, after threatening the remaining occupants of the apartment and warning them to keep their mouths shut, fled the building.

Higgs, who had escaped the apartment when Smith released her to confront Os-mond, returned and discussed with Stark the potential legal implications should police discover contraband in Osmond’s pockets when they arrived. The women went through his pockets, removed whatever Smith had left behind, and left the apartment. Higgs then telephoned police on Stark’s mobile phone. North Adams police officers, as well as a Massachusetts state trooper, soon arrived at the scene, where they discovered the victim’s body lying on the flóor with a loaded handgun beside him.

Meanwhile, Smith went to the apartment of some acquaintances, where he forced the door open. He told them he had threatened Higgs and held a gun to her head. He also admitted he shot Osmond in the throat, saying he thought Osmond was going to shoot him. Smith also confessed that after Osmond had fallen to the floor, he shot him again in the back of the head. One of the occupants of the apartment testified at trial that Smith had said that he was motivated by the fact that “they were making the money and he wasn’t.” Smith then told the occupants of the apartment that because they were now witnesses to his confession, he was going to have to kill them as well, saying “There will be no witnesses” and, therefore, “Everyone must die.” Eventually, however, Smith calmed down and fell asleep. He was awakened when police officers came to the apartment to interview its occupants. Smith fled out a bedroom window but was soon located and taken into custody by North Adams police officers.

III. Procedural Background

Smith was tried in the Berkshire County Superior Court. A jury convicted him of murder in the first degree on theories of both deliberate premeditation and felony-murder (the predicate crime being armed home invasion, for which Smith was also convicted). The jury also found Smith guilty of unlawful possession of a firearm. Smith was acquitted, however, of three less serious crimes relating to threats he allegedly made against the occupants of Higgs’ apartment.

On appeal, the SJC reversed Smith’s armed home invasion conviction, concluding that the indictment failed to adequately identify the specific home invasion at issue, he., Smith’s forcible entry into Higgs’ apartment, or his subsequent forcible entry into the apartment of his acquaintances. Nevertheless, the court upheld Smith’s felony-murder conviction, concluding that because the trial court’s instructions to the jury focused the jury’s consideration on the incident at Higgs’ apartment, there could be no doubt that Smith was convicted of felony-murder on the appropriate predicate offense: the armed home invasion of Higgs’ apartment. Finally, the SJC affirmed the trial court’s denial of Smith’s motion for a new trial, concluding that Smith had validly waived his right to testify at trial, and holding that his defense counsel did not mislead him or provide constitutionally deficient representation.

Before us are three of the claims Smith raised in his federal habeas petition: first, that he waived his right to testify at trial based upon incorrect legal advice and, therefore, the waiver was invalid; second, that trial counsel provided constitutionally deficient .representation when he failed to properly advise Smith about important consequences associated with waiving his right to testify; and, finally, that trial counsel provided constitutionally deficient representation by failing to marshal available evidence to rebut the armed home invasion charge, undermine the felony-murder charge, and support Smith’s claim of self-defense.

In a thorough and thoughtful opinion, the district court rejected each claim. The district court granted Smith a-certificate of appealability and he appealed.

IV. Discussion

To prevail before the SJC on his ineffective assistance claims, Smith bore the burden of satisfying the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, he was required to demonstrate that counsel’s performance fell below an objective threshold of reasonable care and that counsel’s deficient performance prejudiced him. See id. at 687, 104 S.Ct. 2052. To satisfy the prejudice test, Smith had to establish that, but for counsel’s deficient performance, there was a reasonable probability that the outcome of his trial would have been different. See Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In other words, the likelihood that the outcome of the trial would have been different “must be substantial, not just conceivable.” Harrington, 562 U.S. at 112, 131 S.Ct. 770.

In the context of a federal habeas proceeding, claims of ineffective assistance of counsel present mixed questions of law and fact which are reviewed under § 2254(d)(l)’s “unreasonable application” clause. See Teti, 507 F.3d at 57. Consequently, the question before this court (as it was before the district court) is whether the SJC’s application of the Strickland standard to Smith’s ineffective assistance claims was “unreasonable.” Our inquiry is quite different from a de novo determination of whether trial counsel’s performance fell below the standards established in Strickland.

Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incprrect application of federal law.” A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Harrington, 562 U.S. at 101, 131 S.Ct. 770 (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495). In this case, then, we must look for an “unreasonable- application” of Strickland.

A. Advice Regarding Smith’s Waiver of His Right to Testify

Turning first to Smith’s claim of ineffective assistance as it relates to his testimonial waiver, we start with the basics: “a defendant’s right to testify in his own defense is a ‘fundamental constitutional right’ and is ‘essential to due process of law in a fair adversary process.’ ” Casiano-Jiménez v. United States, 817 F.3d 816, 820 (1st Cir. 2016) (quoting Rock v. Arkansas, 483 U.S. 44, 51, 53 n.10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). The defendant’s lawyer “bears the primary responsibility of informing and advising the defendant of this right, including its strategic ramifications.” Id. Counsel is also obliged to explain that the decision to testify or not belongs exclusively to the defendant. Importantly, however, no specific requirements govern the nature or content of those essential conversations between counsel and his or her client. See id. (“In determining whether a lawyer has adequately apprised his client of this fundamental right, no particular formulation is required. There are no magic words; the inquiry is whether ‘some sort of conversation’ has occurred between the attorney and his client, such, that ‘the client can make a knowing and informed decision’ regarding whether to testify in his own defense.”) (quoting Owens v. United States, 483 F.3d 48, 60 n.10 (1st Cir. 2007)).

In support of his assertion that trial counsel provided constitutionally deficient advice regarding his right to testify, Smith relies upon his own affidavit and an affidavit filed by trial counsel. In the latter, counsel relates that: (1) he did discuss with Smith whether or not he should testify; (2) Smith informed counsel of his desire to testify, so he might tell his version of the events; (3) counsel informed Smith that, on cross-examination, the prosecutor would not simply allow him to re-tell his story but would, instead, restrict him to answering questions put to him; (4) counsel advised Smith that, based upon the evidence introduced by the Commonwealth, he did not believe Smith had a viable theory of self-defense; (5) counsel told Smith that, in his professional opinion, he did not believe the jury would credit Smith’s proposed testimony; and, finally, (6) counsel told Smith that if he followed counsel’s advice and did not testify, then if he were convicted, he could challenge both his waiver of the right to testify and counsel’s advice post-trial.

Seizing upon that final bit of advice, Smith says he understood counsel to mean that his decision to waive the right to testify was “not final” and that, if convicted, he could obtain a reversal on appeal by simply challenging counsel’s advice and his waiver. Moreover, he claims he waived his right to testify based upon that (mistaken) understanding of counsel’s advice. Consequently, says Smith, his waiver was not valid.

Trial counsel’s actual advice — -“that if [Smith] followed my advice and did not testify, then if he were convicted he could challenge both his failure to testify and my advice post-trial” — seems, on its face, to be rather unremarkable. It is certainly correct to say that Smith would be free, if convicted, to challenge counsel’s advice on appeal, presumably arguing that for some reason it was patently unreasonable and amounted to ineffective assistance. Additionally, Smith could argue (as he does) that his testimonial waiver was invalid to the extent he relied upon counsel’s purportedly unsound advice. Of course, if counsel had actually told Smith that he could count on obtaining a reversal on appeal if he waived his testimonial right and was subsequently convicted, a legitimate issue would arise with respect to both the competency of counsel’s representation and the validity of Smith’s waiver.

But, both of the Massachusetts courts that reviewed Smith’s claims concluded that did not happen. The state trial court determined that counsel’s advice to Smith concerning his right to testify (and whether he should exercise or waive that right) was neither incorrect nor constitutionally deficient. The trial judge also found that Smith’s claimed understanding of counsel’s advice was not credible. The court supported its credibility determination by noting that: (1) Smith’s affidavit was self-serving and conclusory; (2) defense counsel was “very experienced” and “is frequently called upon in murder cases”; (3) the record “contains ample evidence that [Petitioner] and his trial counsel discussed his right to testify”; and, (4) through his affidavit, trial counsel “did not indicate any willingness to accept fault for allegedly misadvising” Smith. Having fully considered Smith’s claim, as well as the legal and factual support upon which he relied, the trial judge concluded that the “record is clear ... that [Petitioner] made a voluntary, strategic decision not to testify after adequate consultation with his trial counsel.”

On appeal, the SJC also construed Smith’s affidavit as claiming that he thought his decision not to testify would allow him to later obtain a reversal of any conviction. Smith, 946 N.E.2d at 105-06. See also id. at 106 (construing Smith’s “purported misunderstanding” of counsel’s advice to mean that he could have a “do over” if he followed counsel’s advice, elected not to testify, and was subsequently convicted). Like the trial court, the SJC concluded that Smith failed to demonstrate that trial counsel provided either an erroneous or an incomplete explanation of his constitutionally protected right to testify at trial. The SJC noted, inter alia, that trial counsel was both “thorough and highly experienced” (to the point of documenting on the record the fact that he and Smith had discussed whether Smith wished to testify), counsel informed Smith that he had an absolute right to testify, and counsel explained to Smith why he believed Smith should elect not to testify. Indeed, the SJC' found “no error in the advice offered by counsel.” The SJC also affirmed the trial judge’s factual finding that Smith’s affidavit statements regarding his understanding (or misunderstanding) of counsel’s advice were not credible.

We agree with the district court that Smith failed to demonstrate that the SJC’s resolution of his ineffective assistance claim was “contrary to, or involved an unreasonable application of, clearly established Federal law,” as expressed in Strickland. 28 U.S.C. § 2254(d)(1). Nor has Smith demonstrated that either the trial judge’s or the SJC’s credibility determination was “based on an unreasonable determination of facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). While counsel’s advice arguably might have been more precise or complete (say, by informing Smith that if he were convicted, the probability of successfully challenging counsel’s advice and/or his waiver on appeal was very low), it would not be unreasonable to conclude, as the SJC did, that the advice given was neither inaccurate nor misleading. Nor 'has Smith shown that the state courts unreasonably rejected his claimed confusion about his appellate rights as not credible.

For the same reasons, it necessarily follows that Smith’s renewed challenge to his decision to waive his right to testify fails. The SJC’s conclusion that Smith’s waiver was not induced by erroneous legal advice was not unreasonable under § 2254(d)(1), nor was its decision to defer to the trial court’s factual, finding that Smith had not actually misunderstood counsel’s advice unreasonable under § 2254(d)(2). Those legal conclusions and factual findings, which Smith has not shown to have been incorrect or unreasonable in any respect, preclude his invalid waiver theory.

Parenthetically, with respect to Smith’s ineffective assistance claim, the court notes that even if Smith had shown that trial counsel’s advice was incorrect and amounted to ineffective assistance and if he further demonstrated that the SJC’s resolution of his claim was based upon an unreasonable application of the first part of the Strickland test, his claim would still fail, because he has not shown any prejudice resulting from counsel’s allegedly incorrect advice. See generally Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Specifically, Smith has not shown (nor, given the record evidence, could he show) that, had he testified, there is a reasonable probability that the outcome of his trial would have been different.

As the SJC discussed in detail, in order to credit Smith’s version of events regarding the armed home invasion, the jury would have had to “disbelieve the testimony of two percipient witnesses, Higgs and Stark, whose testimony suggested a violent entrance to the apartment.” It would also have had to disbelieve the testimony of Smith’s acquaintances, to whom he had confessed that, upon entering Higgs’ apartment, he held a gun to her head. Additionally, to accept Smith’s claim that he acted in self-defense, the jury would have had to be persuaded that: Smith entered the apartment peacefully and posed no apparent threat to anyone, yet the victim approached him, drew a firearm, and threatened him with it; although Smith’s weapon was not drawn, he was able to access it and fire two shots in self-defense before the victim could respond; and, there was a plausible explanation for the fact that, despite Smith’s claim of rapid defensive shooting, the two bullets from his firearm entered the victim’s body at very different angles and from different directions (evidence that, according to the medical examiner, supported the Commonwealth’s theory that the second, fatal shot was fired while the victim was lying face-down on the floor). Both the trial court and the SJC concluded that Smith’s proposed version of the events in question was simply not credible — a conclusion shared by Smith’s experienced trial counsel, as expressed in his affidavit. Finally, had Smith testified at trial, he obviously would have exposed himself to potential cross-examination and impeachment concerning his criminal activities in Higgs’ apartment, his prior convictions, and the inconsistent statements he made to the occupants of the apartment to which he fled (about why he had killed the victim).

In short, even if Smith had testified and presented his version of events to the jury, it is not reasonably probable that the outcome of his trial would have been different. See Harrington, 562 U.S. at 112, 131 S.Ct. 770. Consequently, even if trial counsel’s advice were deemed constitutionally deficient, Smith suffered no resulting prejudice.

B. Burden of Proof with Respect to the Testimonial Waiver

Next, Smith advances a closely related claim of error. The SJC, he argues, erroneously (and in contravention of Supreme Court precedent) imposed upon him the burden to demonstrate that his waiver of the right to testify was invalid. Instead, says Smith, the SJC should have required the Commonwealth to prove that he knowingly and intentionally relinquished a known constitutionally protected right. In Smith’s view, that error “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). We disagree.

First, nothing in the record suggests that the SJC unreasonably applied the well-established principle that a criminal defendant’s waiver of his constitutionally protected right to testify must be both knowing and voluntary. Indeed, the SJC recognized that the “right to testify on one’s own behalf in a criminal case is fundamental” and specifically recognized that any waiver of that right must be both knowing and intelligent.

To be sure, consistent with Massachusetts law, the SJC did require Smith to bear the burden of demonstrating that his waiver of the right to testify at trial was not knowing and voluntary. Smith, 946 N.E.2d at 105 (“When asserting that errors of counsel deprived him of the right to testify, a defendant has the burden of proving that his waiver of his right to testify was invalid.”) (citations and internal punctuation omitted). The SJC found that Smith failed to carry that burden, and concluded that his waiver was not invalid. But, with respect to properly allocating the burden of proof regarding testimonial waivers, “the Supreme Court has never articulated the standard for assessing whether a criminal defendant has validly waived his right to testify or determined who has the burden of production and proof under particular circumstances.” Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir. 2016) (citing Thompson v. Battaglia, 458 F.3d 614, 619 (7th Cir. 2006)). If federal law is not clearly established by the Supreme Court, “then per force the state court decision cannot be either contrary to or an unreasonable application of clearly established federal law.” Jenkins, 824 F.3d at 153 (quoting Likely v. Ruane, 642 F.3d 99, 102 (1st Cir. 2011)).

The absence of controlling Supreme Court precedent establishing which party bears the burden of proof necessarily dooms Smith’s assertion that the SJC acted contrary to clearly established federal law when it imposed upon him the obligation to show that his waiver was invalid.

C. Failure to Support Self-Defense Theory

In his final claim, Smith asserts that trial counsel provided constitutionally deficient representation by failing to marshal (and introduce at trial) available evidence that would have rebutted the armed home invasion charge and supported Smith’s claim of self-defense. He argues that the SJC’s resolution of that claim on appeal was contrary to, or involved an unreasonable application of, the standards set out in Strickland. That claim also fails.

In support of his claim, Smith first takes issue with the SJC’s statement of facts relevant to his convictions. Then, he paints a picture of the events in question that is supportive of his theory of the case — that he entered Higgs’ apartment peacefully and at her invitation, and that he shot the victim in self-defense. Finally, he attempts to persuade the court that trial counsel was ineffective for failing to introduce evidence tending to prove that account. We are not persuaded.

As outlined above, the evidence presented at trial overwhelmingly supported the jury’s guilty verdict on the charge of first-degree murder. In rejecting Smith’s claim that trial counsel was ineffective by failing to present evidence supportive of Smith’s alternate theory of the case, the trial court found that Smith’s self-defense theory was unpersuasive and rested largely on an entirely speculative opinion of a ballistics expert who lacked both the knowledge and the qualifications to testify about the matters upon which Smith relies. The SJC agreed, noting that in light of the evidence presented at trial, Smith’s theory of the case was not credible and the risks associated with his testifying at trial were substantial.

Smith has not overcome the presumption of correctness afforded to the state court’s factual findings, nor has he demonstrated that those factual findings were, in light of the evidence presented at trial, unreasonable. See 28 U.S.C. § 2254(d)(2). Consequently, he cannot show that trial counsel provided constitutionally deficient representation by either failing to call Smith to testify in his own defense or by neglecting to present other unidentified evidence supportive of Smith’s version of the events — quintessential^ strategic decisions by counsel, that were supported by the record evidence and to which substantial deference is afforded. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (admonishing lower courts to afford trial counsel “wide latitude ... in making tactical decisions.”). See also Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (“[T]his court has held that a lawyer’s performance is deficient under Strickland only where, given the facts known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.”) (citation and internal punctuation omitted).

Because Smith has not, and cannot, show that the SJC’s resolution of his second ineffective assistance claim was contrary to, or involved an unreasonable application of, the Strickland' standard, the district court properly rejected it.

Conclusion

For the foregoing reasons, Petitioner has failed to sustain his burden under 28 U.S.C. § 2254(d) as to any of the claims advanced on appeal. The judgment of the district court denying the petition for ha-beas corpus relief is affirmed.

      . Counsel's transcribed conversation with Smith included the following exchange:
      Counsel: [Mr. Smith], I have asked to have the "steno” here because you and I have had conversations in the back that are in private and we have discussed whether or not you are desirous of taking the stand and testifying in this matter. I have explained to you that it's your absolute right. I have offered you an opinion relative to what I think you should do. And I would like you to clarify for the record whether or not you wish to testify in this particular matter. [Smith]: No, I wish not to testify in this matter.

      . As the district court noted, Smith’s prior experience in the criminal justice system is one of the several factors that undermine his asserted misunderstanding of trial counsel’s advice about waiving the right to testify and/or his appellate rights. See, e.g., Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (“A defendant’s prior experience with the criminal justice system [is] relevant to the question of whether he knowingly waived constitutional rights.”). Additionally, the district court noted that Smith has pled guilty to other charges on at least one occasion in the past, thereby demonstrating a familiarity with the process of waiving constitutional rights.


author: LYNCH, Circuit Judge

text:
    Ronaldo HERNANDEZ-LIMA, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-1983
    United States Court of Appeals, First Circuit.
    September 7, 2016

      Kevin MacMurray and MacMurray & Associates on brief for petitioner.
    D. Nicholas Harling, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Acting Assistant Director, Office of Immigration Litigation, on brief for respondent.
    Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.
   LYNCH, Circuit Judge

Ronaldo Hernandez-Lima petitions for review of the Board of Immigration Appeals’ (“BIA”) decision to dismiss his appeal of an immigration judge’s (“Í J”) denial of his application for withholding of removal. Hernandez-Lima argued that he suffered past persecution and faced a clear probability of future persecution in Guatemala through threats, violence, and extortion on account of both his political opinion and his membership in a particular social group. He defined his political opinion with reference to his participation in the Democratic Christian Party’s (“DCP”) campaign around 1998 or 1999, and he defined his particular social group as “members of a family who were persecuted by gang members.” The BIA declared him ineligible for withholding of removal, finding that he failed to establish that any harm he had suffered or would likely suffer in the future was both (1) severe enough to constitute persecution and (2) related to a statutorily protected ground.

Hernandez-Lima now argues that the record evidence would have compelled a reasonable factfinder to reach a contrary conclusion. We deny his petition.

I.

Hernandez-Lima is a native and citizen of Guatemala. On or about November 13, 2004, he was admitted to the United States pursuant to a B-2 tourist visa authorizing him to remain in the country until May 12, 2005. However, he overstayed this authorization, and on January 4, 2011, the Department of Homeland Security served him with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(B).

In pleadings submitted on February 22, 2011 and April 7, 2011, Hernandez-Lima indicated his intent to apply for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and, in the alternative, voluntary departure. He ultimately did not apply for asylum, but on December 10, 2013, the IJ entertained Hernandez-Lima’s other three applications for relief at a hearing during which he testified. The following summarizes the record evidence derived from that testimony and the ensuing proceedings.

Around 1998 or 1999, when Hernandez-Lima was a high school student in Guatemala, he participated in the DCP’s campaign by attending meetings and putting up posters. After an opposing party prevailed in the elections, its members began sending threatening messages, through third parties, to DCP members. Specifically, Hernandez-Lima was told that members of the opposing party had said they were going to kill him for supporting the DCP. Hernandez-Lima’s father received similar messages during his many years of work for the municipality, but they never materialized into physical harm. The messages Hernandez-Lima received never materialized into physical harm either. Hernandez-Lima cites these “political problems” as the reason he left Guatemala for the United States in June 2001.

In November or December 2003, he returned to Guatemala to see his father, who had become ill, but he did not visit his hometown because “[t]hings [had] gotten worse” there. On February 14, 2004, he traveled back to the United States and remained there for five to six months before again returning to Guatemala in August 2004, this time to see his mother, who had also become ill. In September 2004, while still in Guatemala, he was driving toward his hometown when men with covered faces pulled their car in front of his and shot him. After receiving treatment in a hospital, he traveled back to the United States, entering on November 13, 2004.

Hernandez-Lima testified that he could not identify his' assailants because he could not see their faces, nor could he be sure of their motive because they did not say anything. But he further testified that he believed his shooting was tied to his past political activities and to efforts to extract money from his family. He speculated that his old political opponents were behind the attack because he “never had any problem with anybody else,” and he speculated that his attackers sought money from his family because a few of his relatives had been victims of extortion.

As Hernandez-Lima explained, after his mother’s death in 2010, he learned that gangs had been threatening to “kill somebody in [her] family” if she did not pay them money and that she had obliged. Additionally, he explained that his cousin had faced similar threats but had refused to pay and was subsequently murdered along with his wife and her sister. Hernandez-Lima expressed fear that, if he were removed to Guatemala, he would also face extortion and possibly be killed. When asked who he feared would harm him in these ways, he responded, “There’s a lot of criminal activity happening in [Guatemala], gangs, political parties.”

Despite finding Hernandez-Lima credible, the IJ denied him most of the relief he sought. First, the IJ denied his application for withholding of removal, reasoning that he (1) failed to establish that he suffered past persecution on account of a protected ground because he did not show sufficient harm from the threats he received or a motive for the shooting he endured, and (2) failed to establish a clear probability of future persecution on account of a protected ground because all he showed was a possibility that he would be the victim of a crime unrelated to any protected ground. Second, the IJ denied his application for .protection under the CAT because he failed to establish that Guatemalan officials would acquiesce in or turn a blind eye to any torture he might face. Finally, the IJ granted his application for voluntary departure because he complied with the statutory requirements.

Hernandez-Lima appealed the denial of his application for withholding of removal to the BIA, which affirmed the IJ’s findings and dismissed the appeal on July 30, 2015. The BIA rejected Hernandez-Lima’s argument that he faced, and more likely than not would face again, persecution in Guatemala through threats, violence, and extortion on account of two protected grounds: (1) his political opinion and (2) his membership in a particular social group, defined as “members of a family who were persecuted by gang members.” The BIA’s analysis proceeded in three steps.

First, the problems Hernandez-Lima experienced that were arguably on account of a protected ground — the threats he received from political opponents — did not cause sufficient harm to constitute past persecution. Second, the problems Hernandez-Lima experienced that arguably did cause sufficient harm to constitute past persecution — the shooting and his family’s extortion at the hands of “criminal gang members” — were not on account of a protected ground. And third, to the extent Hernandez-Lima was likely to face conditions of crime and violence upon returning to Guatemala, it was only because those conditions affect the population at large— not on account of a protected ground. The BIA then ordered Hernandez-Lima removed from the United States.

This petition for review followed.

II.

Where, as here, the petition challenges only the agency’s findings of fact, see Sompotan v. Mukasey, 538 F.3d 63, 68 (1st Cir. 2008), we conduct our entire review under the “highly deferential” substantial evidence standard, which requires us to “uphold the BIA’s determination as long as [it] is ‘supported by reasonable, substantial, and probative evidence,’ ” Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). “That the record supports a conclusion contrary to that reached by the BIA is not enough to warrant upsetting the BIA’s view of the matter; for that to occur, the record must compel the contrary conclusion.” Id.

An alien can seek withholding of removal defensively in response to a charge of removability if “the alien’s life or freedom would be threatened in [the] country [to which the alien would be removed] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Hernandez-Lima bears the burden of establishing his eligibility for this relief by demonstrating that it is “more likely than not” that he will be persecuted on account of one of the five protected grounds if removed to Guatemala. See 8 C.F.R. § 1208.16(b)(2); see also, e.g., Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013) (equating the standards “more likely than not” and “a clear probability”). Alternatively, he can demonstrate that he has already suffered such persecution in Guatemala and thereby create a rebuttable presumption that he will suffer the same upon removal. See 8 C.F.R. § 1208.16(b)(1). “These two methods are, of course, commonly referred to as past and future persecution.” Sompotan, 533 F.3d at 68. Critically, each requires a showing of both harm sufficient to amount to persecution and a “nexus” between the alleged persecution and one of the statutorily protected grounds. Id.

III.

Substantial evidence supports the BIA’s finding that Hernandez-Lima did not establish past persecution, despite presenting evidence of three allegedly qualifying experiences.

First, the BIA had substantial evidence to reject the claim that the threatening messages he received prior to leaving Guatemala in 2001 constituted persecution. Hernandez-Lima testified that he did not receive threats directly; instead, third parties told him that members of an opposing political group had said they were going to kill him. He also testified that his father had received similar messages over the course of many years and that such messages never materialized into physical harm to either of them.

Death threats rise to the level of persecution only when “so menacing as to cause significant actual suffering or harm.” Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010) (quoting Bonilla v. Mukasey, 539 F.3d 72, 77 (1st Cir. 2008)). Evidence that such threats were entirely empty “plainly supports [a] determination” that they did not meet that standard. Ruiz v. Mukasey, 526 F.3d 31, 37 (1st Cir. 2008). Presented with evidence that threats of physical harm were never fulfilled — “a pertinent datum ... deserving of weight,” id. — and a total dearth of evidence that they caused any non-physical harm or suffering to weigh against it, the BIA had a substantial basis for concluding that Hernandez-Lima failed to meet his burden of proving that the threats he received were sufficiently menacing.

Importantly, we do not read the BIA’s opinion as suggesting that an applicant for relief from removal claiming to have been persecuted by threats is required to make a showing of physical harm. Such a per se rule would directly conflict with our precedent. See, e.g., Ruiz, 526 F.3d at 37 (“[A]n applicant ... is not obliged to show the infliction of physical harm in order to carry her burden of proving past persecution.”). We reiterate simply that the absence of physical harm weighs against a finding that threats amounted to persecution. While never dis-positive,' this factor may be determinative where, as here, it substantially outweighs any countervailing evidence of nonphysical harm or suffering. Reasonable factfinders may differ in how much weight they assign the absence of physical harm in a given case, but as we have said, “hollow threats, ... without more, certainly do not compel a finding of past persecution.” Moreno v. Holder, 749 F.3d 40, 44 (1st Cir. 2014) (emphasis added) (citations omitted).

Second, the BIA had substantial evidence to reject the claim that the SepT tember 2004 shooting occurred on account of either proffered protected ground. Her-nandezKLima testified that he did not know who shot him or why they did it. He merely speculated that the shooters may have targeted him for his past political activities and in relation to the extortion of his family members.

An alien bears the burden of differentiating. his alleged persecutors from “common criminals” by establishing a nexus between the harm they inflicted and a protected ground. Lopez de Hincapie, 494 F.3d at 219. Thus, while Hernandez-Lima did not need to identify his attackers, he did need “to furnish some credible evidence of the[ir] motivation.” Id.; cf. Cordero-Trejo v. INS, 40 F.3d 482, 488 (1st Cir. 1994) (vacating a BIA decision denying relief where the attackers’ identities were unknown but their motivation was reflected in their mid-attack demands that the petitioner discontinue his political activities).

In Lopez de Hincapié, we found the petitioner’s testimony as to what “she thought” motivated her antagonists insufficient to carry her burden and certainly insufficient to “compel a finding that the [alleged persecution was] in any way associated with either political opinion or social group membership.” 494 F.3d at 219. Hernandez-Lima similarly offered only unsupported theories as to motivation and thus failed to build a record that compelled a finding in his favor. See Morgan v. Holder, 634 F.3d 53, 59 (1st Cir. 2011) (“[A]n alien’s speculation or conjecture, unsupported by hard evidence, cannot compel a finding of the necessary link between alleged persecution and a statutorily protected ground.”). The BIA was free to reject his speculation and to conclude that he failed to establish the requisite nexus.

Third, the BIA had substantial evidence to reject the claim that, through the extortion and violence that some of his relatives experienced, Hernandez-Lima suffered from persecution on account of his membership in a particular social group, defined as “members of a family who were persecuted by gang members.” To prevail on such a claim, Hernandez-Lima needed to establish, inter alia, that his relatives were harmed because of their family membership. See Buiz, 526 F.3d at 38. However, he merely testified that they were extorted for money and alluded in his brief to the belief that they had been targeted as a family.

Here, again, Hernandez-Lima offered only an unsupported theory that any harm he suffered was on account of a protected ground. And again, the BIA was not compelled to accept his speculation. See Lopez v. Lynch, 626 Fed.Appx. 12, 16 (1st Cir. 2015) (unpublished opinion) (testimony that the petitioner’s brother and cousins were killed and that his brother-in-law was kidnapped, without more, “[did] not compel the conclusion ‘that the unfortunate experiences undergone by the petitioner and [his] family were more than isolated occurrences, unrelated to family ... membership’ ” (second alteration in original) (quoting Ruiz, 526 F.3d at 37)).

Moreover, a threat that solicits money “invite[s] the inference that [its maker acts out] of greed, not because of [the petitioner’s] political opinion or membership in a particular social group.” Lopez de Hincapié, 494 F.3d at 219. The BIA made precisely that inference when it concluded that Hernandez-Lima’s relatives were victims of extortion by criminal gangs who sought money rather than to harm them because of their family membership. That inference was especially plausible in light of Hernandez-Lima’s failure to marshal any evidence inconsistent with it. See id. The BIA’s choice of a plausible inference “is by definition supported by substantial evidence.” Ruiz, 526 F.3d at 37.

Substantial evidence also supports the BIA’s finding that Hernandez-Lima did not establish a clear probability of future persecution. Because his argument that he would suffer from further threats, violence, and extortion of the kind he experienced in the past failed on the basis of the BIA’s reasonable finding that those incidents did not qualify as persecution on account of a protected ground, all that remained was his freestanding claim of exposure to widespread crime in Guatemala. The BIA correctly determined that such a claim fails the nexus requirement.

At most, Hernandez-Lima established that he faced a risk of danger from general conditions of strife to which all would be vulnerable, not a clear probability that he would be victimized on account of a protected ground. See Archila v. Holder, 495 Fed.Appx. 98, 101 (1st Cir. 2012) (unpublished opinion). This is true even if the fact that Hernandez-Lima is, as he suggests, “well-known” and perceived as “wealthy” would make him more likely than others to be victimized. After all, susceptibility to “economic terrorism” and other crimes is not a protected ground. López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009). Therefore, there is no basis for upsetting the BIA’s conclusion. See Archila, 495 Fed.Appx. at 101 (“Although [the petitioner’s] fear of returning to the violent conditions that plague Guatemala is understandable, the absence of the requisite statutory nexus is fatal to ... his ... withholding of removal claim[ ].”).

The petition for review is denied.

      . Because Hernandez-Lima conceded his re-movability on these grounds, we do not concern ourselves with the inconclusive record evidence as to the legality of his two prior entries into the United States.

      . Hernandez-Lima did not appeal the IJ's denial of his application for protection under the CAT; accordingly, the BIA deemed the issue waived, and it has not been raised before us.

      . The BIA did not reinstate the 60-day voluntary departure period that the IJ had granted Hernandez-Lima, as he had failed to timely submit sufficient proof that he had posted the voluntary departure bond on which the grant was conditioned. See 8 C.F.R. § 1240.26(c)(3)(ii).

      . Hernandez-Lima's assertion that he "testified that before he came to the United States for the first time, he was shot ... by political opponents” mischaracterizes the record evidence. Hernandez-Lima never testified to that effect; to the contrary, he testified that he left Guatemala in June 2001 and that the shooting occurred in September 2004, during his second trip back to Guatemala.