Walker v. Medeiros

• Decision Date: 21 December 2018
• Docket Number: No. 16-1479,16-1479
• Citation: 911 F.3d 629
• Parties: Andre WALKER, Petitioner, Appellant, v. Sean MEDEIROS, Superintendent, MCI-Norfolk, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

911 F.3d 629

Andre WALKER, Petitioner, Appellant,

v.Sean MEDEIROS, Superintendent, MCI-Norfolk, Respondent, Appellee.

No. 16-1479

United States Court of Appeals, First Circuit.

December 21, 2018

Catherine J. Hinton, with whom Rankin & Sultan, Boston, MA, was on brief, for appellant.

Matthew P. Landry, Assistant Attorney General, Criminal Bureau, with whom Maura Healey, Attorney General, was on brief, for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Andre Walker appeals from the dismissal of the federal petition for writ of habeas corpus that he brings pursuant to 28 U.S.C. § 2254. In his petition, he challenges his convictions under Massachusetts law for murder and other offenses on the ground that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.¹ We affirm.

I.

Walker's convictions arose out of the following events, which are not in dispute. On September 16, 2000, Francis Stephens and José Astacio were shot at the corner of Glenway and Harlem Streets in the Dorchester neighborhood of Boston, Massachusetts. Astacio received one gunshot wound

to the chest but survived, while Stephens suffered multiple gunshot wounds and died.

In February of 2004, in connection with these shootings, Walker and Willie Johnson were indicted in Suffolk County Superior Court in Boston, Massachusetts for murder and other related Massachusetts law crimes. The joint trial began on November 9, 2005.

During the trial, the prosecution introduced testimony from Boston Police Department Detective John Martel and eye-witness Sylvester Harrison. Detective Martel described an interview with Harrison, who picked Walker's picture out of an array of photographs that Martel had presented to him, identifying Walker as the man whom Harrison had observed at the scene of the shootings. Harrison, for his part, corroborated some of Martel's testimony but testified that he had been pressured by the police into making a selection from the array. In addition to Martel's and Harrison's testimony, the prosecution also relied at trial on testimony from three other witnesses -- Sharod Clark, Terence Dotson, and Michael Boyd -- each of whom testified to having known Walker and to having, at one point, resided with Walker in the neighborhood surrounding the Franklin Hill housing projects in Boston. Both Clark and Boyd testified that Walker had been involved in the shootings and that he had described to them his involvement in those shootings. All three acknowledged during their testimony that they expected that their cooperation with the Commonwealth's investigation would result in their receiving lenient treatment for unrelated charges that were then pending against each of them.

After the jury began deliberations, it sent a message to the trial judge that noted that the jurors were "deadlocked." The jury explained in that message that it feared that it would be unable to reach a unanimous decision. In response to the message, the trial judge instructed the jury to continue deliberating, and the jury responded by asking the trial judge to permit it to review the notes from Detective Martel's interview with Harrison. The trial judge replied that those notes were not in evidence but that the jurors should rely on their "collective memory" of both Detective Martel's testimony concerning Harrison's identification of Walker and the testimony that Harrison himself provided at trial about the identification.

On December 9, 2005, after eight days of deliberations, the jury returned verdicts that found Walker guilty of the following Massachusetts law offenses: first degree murder, armed assault with intent to murder, and carrying an unlicensed firearm. The jury acquitted Johnson of all charges.

The trial judge sentenced Walker to life imprisonment for murder, three to five years of imprisonment for possession of a firearm, and six to eight years of imprisonment for armed assault with intent to murder. Walker both appealed his convictions and filed a motion for post-conviction relief, claiming, among other things, that his defense counsel had provided ineffective assistance of counsel in violation of the Sixth Amendment to the federal Constitution by failing to move to suppress testimony concerning Harrison's out-of-court identification.

The same judge who conducted Walker's trial presided over an evidentiary hearing on his post-trial motion. In a 137-page order, the judge denied the motion. Commonwealth v. Walker, No. 2004-10099, 2009 WL 335930, at *1 (Mass. Supp. Feb. 11, 2009). Walker then appealed that decision. That appeal was subsequently consolidated with his direct appeal before the Massachusetts Supreme Judicial Court ("SJC"). Among other things, Walker challenged his convictions on the ground that he had received ineffective assistance of counsel in violation of both Massachusetts law and the United States Constitution in consequence of his counsel's failure to move to suppress the evidence of Harrison's out-of-court identification of Walker. Commonwealth v. Walker, 460 Mass. 590, 953 N.E.2d 195, 199 (2011).

On September 21, 2011, the SJC unanimously affirmed Walker's convictions and affirmed the order denying his motion for post-conviction relief. Id. at 199-200. In doing so, the SJC rejected, among other things, his ineffective assistance of counsel claims. Id.

On December 17, 2012, Walker filed this federal habeas petition in the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 2254. In that petition, he brought a number of claims for relief, including a claim that he had received ineffective assistance of counsel under the federal Constitution. The District Court denied relief on all of Walker's claims and also denied Walker's request for a certificate of appealability ("COA").

On October 10, 2017, this Court granted Walker's COA, though solely as to the question of whether counsel was constitutionally ineffective, under the federal Constitution, for failing to file a pre-trial motion to suppress the evidence of the out-of-court identification. We now consider Walker's appeal of the District Court's ruling denying that claim for relief.

II.

As Walker's case was adjudicated on the merits in state court, the Antiterrorism and Effective Death Penalty Act's ("AEDPA") highly deferential standard of review applies. 28 U.S.C. § 2254(d). Under AEDPA, Walker is entitled to habeas relief based on his federal constitutional claim of ineffective assistance of counsel only if he can show that the SJC's ruling rejecting that claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts." Id. Here, the District Court held that the SJC's ruling rejecting Walker's federal constitutional ineffective assistance of counsel claim was neither contrary to nor involved an unreasonable application of United States Supreme Court precedent. Walker v. Gelb, No. 12-12340-GAO, 2016 WL 1239919, at *2 (D. Mass. Mar. 28, 2016). The District Court also ruled that the SJC's rejection of that claim was not based on an unreasonable factual determination. Id. Reviewing these rulings by the District Court de novo, see Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007), we agree.

A.

To demonstrate that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution, Walker must show both that his defense counsel's performance was constitutionally deficient and that this deficiency prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that his counsel's performance was constitutionally deficient, Walker must demonstrate that "counsel's performance was objectively unreasonable ‘under prevailing professional norms.’ " United States v. Mercedes-De La Cruz, 787 F.3d 61, 67 (1st Cir. 2015) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052 ). This standard is "highly deferential" and thus we must "indulge a strong presumption that ... under the circumstances, the challenged action ‘might be considered sound trial strategy.’ " Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ).

In addition, under Strickland, Walker must show that the deficient performance was prejudicial. Id. at 687, 104 S.Ct. 2052. Because Walker bases his ineffective assistance of counsel claim on his defense counsel's failure to file a motion to suppress the evidence concerning Harrison's out-of-court identification of Walker, Walker must, in order to show prejudice, at a minimum show that the motion to suppress would have been granted if it had been made. See Jaynes v. Mitchell, 824 F.3d 187, 196 (1st Cir. 2016) (citing Mercedes-De La Cruz, 787 F.3d at 67 ). Additionally, Walker must show that, if the motion to suppress had been successful, it is reasonably probable that the proceedings would have ended with a different result. Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007) (citing Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ).

Walker's contention that his counsel's performance was constitutionally deficient is premised on the fact that the United States Supreme Court has held that a defendant's federal constitutional right to due process bars the government's use at trial of evidence of a witness's out-of-court identification of the defendant if the identification procedure employed by the government is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Walker argued to the SJC that the circumstances of the photo array at issue here were constitutionally problematic in just that...