MEMORANDUM & ORDER
I. INTRODUCTION
A jury convicted petitioner Bryan Johnston (“Johnston”) in 2006 of first-degree murder, use of a large capacity firearm in commission of a felony, possession of a large capacity firearm without a license, and armed burglary. At trial, Johnston ddmitted that he killed the victim, but argued that he lacked criminal responsibility for his actions under Massachusetts law.
Johnston now files a petition for habeas corpus relief before this Court on the basis of ineffective assistance of his trial counsel (his “counsel”). Specifically, he claims that counsel was ineffective in his (1) failure to move to have Johnston’s statements made in jail and at Bridgewater State Hospital suppressed, Mem. Supp. Pet’r’s Habeas Corpus (“Pet’r’s Mem.”) 14-36, ECF No. 26; (2) failure to move to exclude Johnston’s statements in which he invoked his right to counsel and his refusals to answer questions, id. at 36-46; (3) failure to object to the prosecutor’s statement that Johnston had “constructed” a defense, id. at 46-50; and (4) eliciting testimony regarding Johnston’s being “moon-faced” without impeaching the testifying witness, id. at 50-53.
Johnston raises some troubling issues: for example, the jury ought not have heard about Johnston’s repeated requests to speak with his attorney while at Bridgewa-ter State Hospital. Reviewing his petition under the strictures of the current habeas statutory framework, however, the Court cannot grant him relief.
A. Factual Background
The Court must “accept the state court findings of fact unless [Johnston] convinces [the Court], by clear and convincing evidence, that they are in error.” Lynch v. Ficco,
Johnston had a phone conversation with the victim in the evening of December 6, 2004, after which Johnston drove to the victim’s house and shot him six times with a rifle. Johnston, 467 Mass, at 677,
[W]hile he was waiting for his friend to arrive and drive him [home], [Johnston] left a voice message for a female friend. He apologized for missing her call and said he was “wondering what you’re up to tonight.’ He spoke in his typical ‘calm, easygoing, fun-loving... nonchalant’ tone. As [Johnston’s] friend was driving him home from the restaurant [Johnston] said, ‘It’s a good thing the cop didn’t search me.... I have my piece on me.’ [Johnston] produced a handgun and said there were six rounds in it. He also said that his license to carry a gun had been revoked.
Id. at 679,
Approximately four hours after the murder, at 4:45 a.m. on December 7, 2004, [Johnston] telephoned his parents. He was making no sense, talking about the mafia and gangs, and threatening to commit suicide. At 6 a.m., his sister, a psychiatric nurse, returned a telephone call she had received from him. He made no sense. When his parents arrived at his apartment at 8 a.m., he was saying bizarre things and his eyes were unfocused.
Id. at 682,
At about 9 a.m. the same day two West-field police officers went to the defendant’s apartment and asked him to accompany them to Noble Hospital in Westfield for a psychiatric evaluation that was ordered by a District Court judge pursuant to G.L. c. 123, § 12, on the application of his parents. The defendant refused to comply and a struggle ensued. The defendant was subdued through the use of pepper spray.
In the meantime, Amherst and State police investigators were given the name of the defendant by the victim’s girlfriend. They went to the defendant’s apartment in Westfield and were made aware of the defendant’s civil commitment. The defendant’s father consented to a search of his own car, which contained some items he and his wife had removed from the defendant’s apartment for their son’s safety, including a .38 caliber handgun. The defendant’s father also consented to a search of the defendant’s apartment. Among the items recovered from the two locations were a .223 caliber magazine having a capacity of ninety rounds, and a loaded .40 caliber Sig Sauer pistol. The next day, December 8, investigators returned to the defendant’s apartment with a search warrant. They recovered several items, including a “fanny” pack containing hypodermic syringes and bottles of two different anabolic steroids. From adumpster at the apartment complex, investigators also recovered a gun case capable of holding a rifle.
Id. at 679,
In the years leading up to the instant crime, Johnston had exhibited signs of extreme paranoia, believing, for example, “that Federal Bureau of Investigation (FBI) agents had rappelled off the roof of his apartment complex and observed him from the window of his twenty-seventh floor apartment.” Id. at 680,
Johnston believed “that the victim had told him that his crime family had paid to have the defendant anally raped in Hawaii, and that they ‘bugged’ his apartment in Hawaii and his parents’ home.” Id. at 681,
Regarding his mental health, Johnston “experienced paranoid delusions both when he was intoxicated or on drugs, and when he was sober. He was not always delusional when intoxicated or on drugs. His delusional fear of organized crime families and of gangs intensified during the six months preceding the victim’s death.” Id. at 682,
A jury returned guilty verdicts as to all of the counts charged, which included “(1) murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder; (2) armed burglary; (3) possession of a large capacity
B. Procedural History
Johnston was convicted by a jury after a trial in the Massachusetts Superior Court sitting in and for the County of Hampshire. See Johnston, 467 Mass, at 674,
II. ANALYSIS
Johnston argues that his counsel was ineffective for four reasons: (1) failure to move to suppress statements Johnston made after he had been given a Miranda warning, see Pet’r’s Mem. 14-36; (2) failure to move to exclude Johnston’s statements in which he invoked his right to counsel and his refusals to answer various questions, id. at 36-46; (3) failure to object to the trial prosecutor’s statement that Johnston had “constructed” a defense, id. at 46-50; and (4) eliciting testimony regarding Johnston’s being “moon-faced” without impeaching the testifying witness, id. at 50-53. The Court first discusses the applicable legal framework, and then addresses these arguments in turn.
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this Court’s posture on review. AEDPA provides, in relevant part:
An 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) (emphasis supplied).
Johnston does not dispute that AEDPA applies generally to the Court’s review of his petition. See Pet’r’s Mem. 40, 51. As to his first claim (regarding the admission of his post-Miranda statements made in the absence of counsel), however, Johnston argues that AEDPA, by its terms, does not apply because the claim was not “adjudicated on the merits in State court.” See id. at 19-22. This is a weighty determination, because if AEDPA does not apply, then the Court would review the argument de novo, meaning the Court would analyze one of the grounds Johnston proffers in support of his ineffective assistance of counsel claim with no deference to the state court’s determination. While Johnston is correct that the SJC did not explicitly discuss the underlying Fifth Amendment violation that he ar
B. Ineffective Assistance of Counsel Framework
“To succeed on [an ineffective-assistance-of-counsel] claim, [a petitioner]
When reviewing an ineffective assistance of counsel claim on habeas review that has already been denied on the merits by a state court, the Court’s inquiry is
whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard. 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 incorrect 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,
C. Merits
Johnston bases his ineffective assistance of counsel claim on four distinct errors on the part of his counsel. The Court addresses these in turn.
1. Suppression of Johnston’s Post-Miranda Statements
Johnston’s first argument is that counsel’s failure to move to suppress his statements “to jail and Bridgewater staff’ in the absence of counsel from December 8 onwards constituted ineffective assistance of counsel. Pet’r’s Mem. 22-36.
To prevail on this claim, Johnston must show both that such a motion would have succeeded and “that there is a reasonable probability that the verdict would have been different absent the excludable evidence!;.]” Kimmelman v. Morrison,
Johnston’s argument hinges on the notion that he could “validly assert [his] Miranda rights when approached for a psychological examination^]” Pet’r’s Reply 4 (citing Estelle v. Smith,
For Johnston’s Fifth Amendment rights to have been implicated, he must have been subject to “custodial interrogation^]” where “interrogation” refers to “any words or actions ... that the [government actor] should know are reasonably likely to elicit an incriminating response from the suspect[,]” Rhode Island v. Innis,
[A]t the jail, Johnston was being seen for a “medical intake” by a Licensed Practical Nurse (R.171), and at the hospital, he was being evaluated and observed by various mental health providers regarding his mental health status as part of court-order under M.G.L. c. 123, § 18(a). The purpose of the § 18(a) evaluation was very specific: to determine “whether or not [Johnston] should be committed to a psychiatric facility...; if [he] had a mental illness, what kind of treatment [he] may benefit from; if [he] did not meet commitment standards and would return to where [he]was awaiting trial ... what might be helpful to reduce the risk of harm to [himself] or others due to mental illness, if it was present.”
Govt.’s Mem. 19 (internal citations omitted).
That medical records produced as part of a section 18(a) evaluation were admitted at trial is unremarkable. See Mass. Gen. Laws Ch. 233, § 79; id. § 20B(b) (waiving psychiatrist-patient privilege when a patient has been subject to a court-ordered examination to extent that the communications “are admissible only on issues involving the patient’s mental or emotional condition”); id. § 20B(c) (waiving privilege when a “patient introduces his mental or emotional condition as ... [a] defense”).
The Commonwealth correctly points out that
[t]here is nothing in the records that shows the medical staff failed to heed the defendant’s declarations that he would not answer certain questions until he spoke to his attorney. Moreover, there is nothing to suggest the medical staff asked Johnston any questions about the charges and any questions that were asked appear to have been limited to his current mental status, consistent with M.G.L. c. 123, § 18(a).
Govt.’s Mem. 20; see Pet’r’s Mem. 26 n.10 (citing Tr. 19:316) (describing how Johnston was “seen every day by clinical staff [at Bridgewater State Hospital] to monitor his mental status.”) (emphasis supplied). These medical interviews were not of a criminal-investigative nature and thus did not constitute “interrogations” under the Fifth Amendment, therefore their admission does not violate Johnston’s constitutional right against compelled self-incrimination. See Coble v. Quarterman,
2. Johnston’s Invocation of his Right to Counsel
Johnston next argues that counsel’s failure to move to suppress Johnston’s statements (in the medical records) in which he invoked his right to counsel and his refusal to answer questions also constituted ineffective assistance of counsel. Pet’r’s Mem. 36-46. Johnston’s claim here is similar to the one above, except that it “focuses on discrete pieces of evi
The SJC ruled that “the portion of [Johnston’s] refusals that are identified with the advice of counsel is protected, as is [Johnston’s] request to confer with counsel before answering. All references to counsel, but not the refusals themselves (he did not invoke his right to silence), should have been the subject of a motion to redact.” Johnston, 467 Mass, at 689,
Johnston argues that the SJC’s conclusion that his counsel’s strategy was reasonable, and further, that he was not prejudiced, constituted an unreasonable application of federal law. See Pet’r’s Mem. 40-46. The Court disagrees.
With respect to the permissibility of counsel’s strategy, the SJC adopted the trial judge’s statement (made when denying Johnston’s motion for a new trial) that counsel’s decision to admit these records— references to acting on advice of counsel and asking to speak to counsel included— was a reasonable one because the references “explain the absence of psychotic statements at Bridgewater while [per the judge’s limiting instruction] avoiding the potentially adverse inferences that the evidence could also give rise to, e.g., that [Johnston’s] compliance with his attorney’s advice was evidence of his sanity.” Johnston, 467 Mass, at 692,
As Johnston’s briefing elucidates,
3. “Constructed” Defense
Johnston next argues that counsel’s failure to object to the trial prosecutor’s statement that Johnston had “constructed” a defense rendered his counsel’s performance constitutionally deficient. Pet’r’s Mem. 46-50.
Johnston first points to a portion of the Commonwealth’s opening statement in which the jury is told that Johnston’s mother “first had spoken to an attorney and, after speaking to an attorney, had contacted the crisis services in Westfield, and the police department was called in to assist in taking him into custody.” Pet’r’s Mem. 47 (citing Tr. 5:62). The SJC ruled that the Commonwealth’s opening argument was proper, and therefore Johnston’s counsel was not ineffective for failing to object to it. Johnston, 467 Mass, at 693,
Next, Johnston claims that “the unifying theme of the prosecutor’s closing argument was that Johnston’s insanity defense was concocted after he was charged, and necessarily after he had consulted counsel.” Pet’r’s Mem. 47. In reality, however, the Commonwealth’s closing argument focused on undermining Johnston’s expert witnesses’ reports, see Tr. 21:84-88, the improvement of Johnston’s mental health and his ability to function, id. at 100-07, and the deliberate nature of Johnston’s acts, id. at 111-24.
Third, Johnston claims his counsel ought have objected to the elicitation of testimony on the re-direct examination of Dr. Weiner. Pet’r’s Mem. 47. Specifically, he argues the admission of the following statement of Dr. Weiner statement was in error:
[Dr. Anfang] advised [Johnston] that his lawyer was concerned he get treatment for schizophrenia. So the discussion of his taking anti-psychotic medication came up with the doctor saying that this is what your lawyer wants you to do. And he goes on to say, ‘Supposedly longstanding delusions. It is notable that inmate was able to conduct himself behaviorally without overt problems, dis-control [sic], during [his] entire Bridge-water hospital stay ... and there are concerning inconsistencies in his subjective report and observed presentation.
Tr. 18:266-67.
The SJC appeared to rule that counsel did not err in failing to object to and move to strike this statement. See Johnston, 467 Mass, at 694-95,
4. “Moon-Faced” Testimony
Finally, Johnston claims that counsel’s eliciting of testimony regarding Johnston’s being “moon-faced,” without
The SJC evaluated this claim and rejected it:
The trial judge concluded that although counsel was negligent, there was no prejudice because there was strong evidence that the defendant in fact used anabolic steroids. We agree. Although this was a lost opportunity to impeach Dr. Weiner, whose credentials also included board certification in psychophar-macology, that is, expertise in matters that include side effects and consequences of drugs, the record indicates that trial counsel impeached him on multiple fronts during 270 transcript pages of his cross-examination. Failure to use a particular method of impeachment does not constitute ineffective assistance of counsel.
Johnston, 467 Mass, at 695-696,
While counsel’s question to the Commonwealth’s expert witness concerning Johnston’s characterization as “moon-faced” may have hurt Johnston’s case insofar as it emphasized that Johnston had been using steroids (which would provide an alternate explanation for his aggression independent of his mental illness), the Court is not convinced that the SJC’s determination as to the insufficiency of the resulting prejudice was an unreasonable one, as the point was minor and counsel impeached Dr. Weiner in other ways. See, e.g., Knight v. Spencer,
III. CONCLUSION
For the foregoing reasons, Johnston’s petition for habeas corpus, ECF No. 1, is DENIED.
Notes
. In Massachusetts, "once a defendant raises the issue of criminal responsibility, the Commonwealth has the burden to prove, beyond a reasonable doubt, that the defendant did not lack the substantial capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law, as a result of a mental disease or defect.” Commonwealth v. Berry,
. Johnston argues that the SJC's recitation of the facts "omits [certain] details” from the testimony at trial that are helpful to him, Pet'r’s Mem. 5, and includes these snippets in his recitation of the facts, id. at 5-13, but reality he challenges only one particular factual finding as an “unreasonable determination of the facts.” Specifically, Johnston claims that the SJC’s determination "that Johnston did not invoke his right to silence .... was an unreasonable determination of the facts, to the extent that it is relevant to Johnston's right to counsel claim.” Id. at 23 n.8. While Johnston "doubts” that another of the SJC's factual determinations "reflects reality!,] ” he does not challenge it as unreasonable. Id. at 41 n.23. This issue will be discussed infra, with this section briefly recounting the pertinent background facts of Johnston's case, drawing on the SJC’s recitation of them.
. Again, this was not a case about whether Johnston actually committed the acts alleged, but rather whether he was responsible for them. See Johnston, 467 Mass, at 680,
. For example,
On October 19, 2002, the defendant walked into the State police barracks in Westfield and claimed people were chasing him. A State police officer tried to reassure him that no one was in the parking lot. The defendant would not accept the officer’s assertions as true, and he dialed 911. The defendant's state of agitation did not abate, so the officer telephoned the defendant's father and then handcuffed the defendant to a bench for safety purposes. After his father arrived the defendant was released. The defendant told his father that he had visited a friend in the Albany, New York, area and was followed by the mafia on his drive back to Westfield.
Johnston, 467 Mass, at 681,
. The record was filed in paper copy with the Court, Notice Manual Filing, ECF No. 19, and thus citations to, for example, the trial transcript, will not include an ECF number.
. Johnston argues that the SJC's subsequent statements show that it fundamentally misunderstood his claim, which is that his counsel’s failure to object constituted ineffective assistance of counsel because it prevented his Fifth Amendment right from being vindicated at trial. Pet’r’s Mem. 20. After clarifying that Johnston “does not argue that he invoked his right to remain silentf,]” the SJC claimed that he "focuses on [his] right to counsel under the Sixth Amendment,’’ and since defendants do "not have a Sixth Amendment right to have [their] lawyer present during the court-ordered psychiatric interview[,]” rejected that claim. Johnston, 467 Mass, at 687,
Another part of the SJC's opinion, however, can be read to contain an implicit ruling that Johnston lacked a Fifth Amendment right to counsel when answering medical questions at the hospital and jail: while discussing another of Johnston’s claims, the SJC stated Johnston "was not entitled to have counsel present during the psychiatric interviews[.]” Johnston, 467 Mass, at 689,
. The Supreme Court showed the force of the on-the-merits presumption in Harrington v. Richter,
. In Rosario v. Roden,
. The test is called the Strickland test, after the Supreme Court case that articulated the test, Strickland v. Washington,
. Johnston focuses on his statements as noted on treatment records prepared by clinical staff at Bridgewater State Hospital and his statements made during his medical intake at Hampshire Jail and House of Corrections. He allows that “the admission of his statements during his actual court-ordered examinations by Dr. Peebles[]” was proper, and challenges only "the admission of dozens of statements to essentially anonymous persons in the Bridgewater records that were not part of the court-ordered examination.” Pet'r's Reply 2-3.
. Johnston is correct that the Supreme Court has instructed that Fifth Amendment protections apply even when it is a psychiatrist, and not a police officer, questioning a suspect. See Estelle v. Smith,
. For example, the defendant in Commonwealth v. Brown,
. The Court agrees with the Fifth Circuit’s analysis of a similar issue: "[u]nlike the defendant in Estelle v. Smith, [the petitioner] was not faced with a phase of the adversary system, but was in the presence of a person acting solely in his interest. Therefore, the [psychiatric] report did not violate his Fifth Amendment right.” Coble,
. The SJC's application of Massachusetts’s standard constitutes an adjudication on the merits because it is "at least as favorable" to Johnston as the federal standard. See, e.g., Mello v. DiPaulo,
. Sometimes, the SJC's analysis focuses on prejudice, while, within the same five-factor framework, honing in on the reasonableness of counsel’s strategy at other points. Compare, e.g., Johnston, 467 Mass, at 692,
.The explaining-the-absence rationale for allowing the testimony is flawed, Johnston argues, because Johnston made plenty of statements post-killing, see Pet'r's Mem. 41-42 (citing Tr. 5:207-09, 212-13, 220, for exam-
. The Commonwealth's closing argument in fact consumed over fifty pages of trial transcript, which the SJC held up as evidence that the challenged comment was a minor part of it. Id. at 84-137; Johnston, 467 Mass, at 694,
. Johnston's counsel had emphasized the unprovoked nature of his assaulting another inmate while he was at the house of correction as circumstantial evidence of his lack of criminal responsibility. See, e.g., Tr. 18:190; Johnston, 467 Mass, at 694,
. Johnston points to the following exchange between counsel and the Commonwealth’s expert witness:
Q: ... you describe Mr. Johnston as moon-faced?
A: Yes.
Q: Why did you choose the word "moon-faced”?
A: That's a medical term
Q: What does it mean?
A: It refers to a round face, a particularly round face that is specifically associated in people who are especially heavy steroid users. That after they have been using steroids for quite some period of time, there are a number of changes in the body habitus, one of which is that the face may become quite round. And having evaluated, assessed, people with what is known as moon-faces, I believe that [Johnston’s] presentation was consistent with a person who had moon-faces.
[[Image here]]
Q: He hadn’t done steroids for more than a year?
A: That’s correct
Q: So you believe it was the leftover remnants of his steroid abuse?
A: Absolutely.... The effects of steroid use may continue to manifest themselves long after the person has stopped.
Tr. 18:196-98.
. Johnston asks the court to "evaluate the cumulative prejudice from each aspect of counsel's ineffective assistance.” Pet’r’s Mem. 53 (citing Dugas v. Coplan,