Andre Walker v. SEAN MEDEIROS, Superintendent, MCI-Norfolk

United States Court of Appeals
For the First Circuit
No. 16-1479
ANDRE WALKER,
Petitioner, Appellant,
v.
SEAN MEDEIROS, Superintendent, MCI-Norfolk,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Catherine J. Hinton, with whom Rankin & Sultan was on brief,
for appellant.
Matthew P. Landry, Assistant Attorney General, Criminal
Bureau, with whom Maura Healey, Attorney General, was on brief,
for appellee.
December 21, 2018

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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
1 The Sixth Amendment, which was incorporated against the states
by the Due Process Clause of the Fourteenth Amendment to the United
States Constitution, see Gideon v. Wainwright, 372 U.S. 335, 342-
43 (1963), provides: "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense." U.S. Const.
amend. XI (emphasis added).

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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.

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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

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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, 953 N.E.2d 195, 199 (Mass. 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

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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

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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 (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). 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 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
In addition, under Strickland, Walker must show that the
deficient performance was prejudicial. Id. at 687. Because Walker

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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 (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 (1968). Walker argued
to the SJC that the circumstances of the photo array at issue here
were constitutionally problematic in just that manner and, thus,
that his counsel acted deficiently by not moving to suppress the
evidence concerning Harrison's identification, given that Walker

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contends that his defense counsel had no strategic reason for
failing to do so. Walker, 953 N.E.2d at 204.
B.
The District Court rejected Walker's federal habeas
challenge to the SJC's ruling on his ineffective assistance of
counsel claim. After carefully reviewing the SJC's decision, so
do we.
The SJC rejected the first ground on which Walker
premised his ineffective assistance of counsel claim by
determining that the judge who rejected his post-trial motion for
relief did not clearly err in finding that, contrary to Walker's
contention, Harrison had not been pressured by law enforcement to
make a selection from the array of photographs. See id. at 205
(adopting the motion judge's findings as they "were not clearly
erroneous"). Like the District Court, we agree that the SJC's
ruling on this point must be sustained under AEDPA.
On appeal to us, Walker points to no clear and convincing
evidence in the record that law enforcement did pressure Harrison
into making a selection from the array of photographs. Instead,
Walker relies primarily on Harrison's account of the
identification as evidence that pressure occurred. But,
Harrison's account of the identification is at odds with Detective
Martel's testimony that he did not "press" Harrison into making a

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selection from the array and that Harrison chose without
protestation.
Walker does seize on language from Martel's testimony in
which he quoted Harrison as saying "if [I] had to pick" before
Harrison made his selection from the array. According to Walker,
this part of Harrison's testimony demonstrates that Harrison must
have felt pressured into making a selection. But, this statement
does not clearly or convincingly do so, as it may readily be
understood to show merely that Harrison was making the point that
he was less than certain of his choice, even though it was freely
made. Thus, we see no basis for overturning the District Court on
this point, as AEDPA instructs that we must leave state-court
factual findings undisturbed unless the petitioner for habeas
relief can show through "clear and convincing evidence" that the
state court's finding was unreasonable. 28 U.S.C. § 2254(e)(1).
The SJC also rejected the second ground on which Walker
premised his ineffective assistance of counsel claim, by
determining that, contrary to Walker's contention, the federal
Constitution's Due Process Clause did not require the government
to employ the safeguards in conducting the photo array that Walker
contended were required but that were not used. Specifically, the
SJC rejected Walker's arguments that the identification procedure
was constitutionally problematic because law enforcement did not
inform Harrison that the suspect's picture might not be included

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in the array, did not employ a "double-blind" identification
process, did not record Harrison's selection from the array, and
did not use a sequential-photographic array. Walker, 953 N.E.2d
at 206-07, 208 n.17.
Although Walker challenged the lack of procedural
safeguards used in the identification in seeking habeas relief
from the District Court, it appears that the District Court did
not address the issue. Nevertheless, we may affirm on any ground
manifest in the record. See Euromodas, Inc. v. Zanella, Ltd., 368
F.3d 11, 16 (1st Cir. 2004). And, we affirm here because, in now
challenging the SJC's holding on this score, Walker fails to
identify any United States Supreme Court precedent that clearly
establishes that, under the federal Constitution, the procedures
he identified as being required must be employed. Instead, he
points only to the fact that these procedures were required by the
SJC in Commonwealth v. Silva-Santiago, 906 N.E.2d 299 (Mass. 2009),
and that they were recommended in a 1999 report on eye-witness
evidence that the United States Department of Justice issued. But,
Silva-Santiago did not purport to hold that these procedures were
required as a matter of federal constitutional law. And the
Department of Justice report did not purport to do so either.
Thus, Walker has failed to demonstrate -- as AEDPA requires him to
demonstrate in order to obtain habeas relief -- that the SJC's

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ruling was either contrary to or an unreasonable application of
clearly established United States Supreme Court precedent.
Finally, the SJC rejected the only other premise for
Walker's ineffective assistance of counsel claim. This premise
was that the federal constitutional guarantee of due process
prohibited the use at trial of the evidence of Harrison's
identification of Walker because that identification was based on
an "all-suspect photographic array." In rejecting this
contention, however, the SJC did not determine that the federal
Constitution permitted the use of all-suspect arrays. In fact,
the SJC expressed concerns about the practice by noting that,
although it was "not convinced that the rate of false positive
identification is greater with all-suspect arrays," it did
recognize "that the danger that a false positive identification
will result in a wrongful prosecution is greater with" this kind
of procedure. Walker, 953 N.E.2d at 208. The SJC even went on to
instruct that police should not use photographic arrays containing
"fewer than five fillers for every suspect photograph," id.,
without indicating whether the use of an out-of-court
identification at trial based on an array of this type would
comport with federal constitutional requirements.
Nevertheless, the SJC ultimately rejected Walker's
ineffective assistance of counsel claim, notwithstanding the
concerns that the SJC had raised about the use of the all-suspect

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array, after applying the "miscarriage of justice" standard
described in Commonwealth v. Gonzalez, 824 N.E.2d 843, 852 (Mass.
2005). The SJC did so because:
[w]e do not conclude that a substantial likelihood of a
miscarriage of justice arose from the use of an all-
suspect array in this case. . . . [T]he heart of the
Commonwealth's case against Walker was the testimony of
Clark, Dotson, and Boyd, not Harrison's equivocal and
retracted prior identification.
Walker, 953 N.E.2d at 208. 2
We share the SJC's discomfort with the use of all-suspect
arrays, which lack "filler" photographs. The use of only suspects'
photos in arrays necessarily increases the difficulty in assessing
whether any particular selection from the array is a false or
mistaken one, as would be readily apparent if "fillers" were
included and one of the "fillers" were selected. Moreover, because
the presentation of the array itself may suggest that those
depicted in it are more likely to have been involved in the offense
than those not depicted, the fact that there are no "fillers" to
serve as checks on such false or mistaken selections is all the
more troubling. See Richard Gonzales et al., Response Biases in
2 In determining that there was not a "substantial likelihood of a
miscarriage of justice," the SJC additionally noted that "[t]he
photograph that Harrison identified as the man in the Toyota
automobile was not the codefendant; but the codefendant, and not
the man identified, was the person charged by the Commonwealth,
which suggests that the police did not lock onto a suspect based
on Harrison's identification." Walker, 953 N.E.2d at 208.

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Lineups and Showups, 64 J. Personality & Soc. Psychol. 525, 527
(1993) ("[A] lineup [with fillers] is in principle more fair than
a [line up of only suspects] because it distributes the probability
of identification of an innocent suspect across the lineup foils,
reducing the risk of an identification error."). But, the SJC
rested its rejection of this aspect of Walker's ineffective
assistance of counsel claim on its finding that his counsel's
failure to move to suppress the identification evidence did not
result in a "miscarriage of justice" under Gonzalez in light of
the other evidence of his guilt put forth at trial. Thus, it is
that ruling by the SJC that must be our focus for purposes of
assessing the merits of his federal habeas petition.
C.
Turning to that ruling, we note that the "miscarriage of
justice" standard that the SJC applied is a Massachusetts law
standard for evaluating a claim of ineffective assistance of
counsel. But that test is more defendant-friendly than the test
that the United States Supreme Court set forth in Strickland for
evaluating a claim of ineffective assistance of counsel under the
federal Constitution. See Knight v. Spencer, 447 F.3d 6, 10, 15
(1st Cir. 2006). We have therefore held that this "miscarriage of
justice" standard "subsume[s]" the federal standard for
determining when a Strickland violation has occurred, see Sleeper,
510 F.3d at 38, which means that it subsumes both the Strickland

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test for determining constitutionally deficient performance by
defense counsel and the Strickland test for determining whether
such deficient performance was prejudicial.
Thus, under AEDPA, so long as the SJC's ruling that there
was no "miscarriage of justice" due to the other evidence of
Walker's guilt that the jury had before it is not "so lacking in
justification" as to be "beyond any possibility for fairminded
disagreement," Harrington v. Richter, 562 U.S. 86, 103 (2011), we
must defer to it. And, although the District Court does not appear
to have addressed Walker's challenge to this aspect of the SJC's
ruling, we conclude that, based on the record, Walker's challenge
to it must fail. Zanella, 368 F.3d at 16.
The SJC's ruling on that score, after all, necessarily
amounts to a determination that there was no prejudice under
Strickland because it is not reasonably probable that the outcome
of Walker's trial would have differed if the identification
evidence from Harrison had been suppressed. And, so understood,
we see no basis for concluding that the SJC's determination in
that regard defies reason, which, under AEDPA, is the conclusion
that we would have to reach to rule for Walker. See Richter, 562
U.S. at 102-03.
Walker does point out in his briefing to us that the
record shows that the jury requested the notes from Harrison's
identification during its deliberations. But, it is impossible to

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know from the record why the jury made that inquiry or how it then
affected the verdict. Thus, for purposes of habeas review, that
query alone fails to render unreasonable the SJC's judgment that,
considered in the context of the case as a whole, the
identification's suppression would not (drawing from the federal
prejudice standard that the SJC's "miscarriage of justice"
standard subsumes) have made it reasonably probable that the
proceeding's outcome would have differed. See Sleeper, 510 F.3d
at 39 (citing Smith, 539 U.S. at 537).
Nor does the fact that, as Walker also points out, the
jury informed the trial judge at one point that it feared that it
might be deadlocked. Because the trial was a joint one, it is
impossible to know from that representation by the jury whether
its concerns pertained to Walker's case or Johnson's, which
resulted in an acquittal.
We thus must, like the SJC, consider the rest of the
evidence to assess the possible impact of Walker's counsel's
failure to have moved to suppress the identification evidence (even
assuming that we could find under the AEDPA standard that such a
failure constituted deficient performance for purposes of
Strickland). Having undertaken that consideration, we cannot
conclude that the SJC defied reason in ruling that there was no
miscarriage of justice -- and thus, necessarily, that no Strickland
violation occurred -- because "the heart of the Commonwealth's

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case against Walker was the testimony of Clark, Dotson, and Boyd,
not Harrison's equivocal and retracted prior identification."
Walker, 953 N.E.2d at 208.
As an initial matter, the record fully supports the SJC's
characterization of Harrison's alleged identification as
"equivocal and retracted[.]" Id. Indeed, Harrison first testified
that he "didn't see who shot the person," before amending his story
shortly thereafter by conceding that he saw "a quick image" of the
shooter. Id. at 203.
The record also supports the SJC's conclusion that the
government's case against Walker did not hinge solely on Harrison's
identification. For example, the government produced testimony
from local police indicating that Walker was affiliated with a
gang, the Franklin Hill Giants, as well as testimony that Walker
had expressed a desire for retribution after members of a rival
gang shot Richard Green, Franklin Hill's "head man." Id. at 200.
Additionally, one of the state's three witnesses, Boyd, testified
to knowing Walker personally and in detailed fashion about his
conversation with Walker regarding Walker's involvement in the
murder. Specifically, Boyd testified that Walker told him how he
acquired the getaway vehicle, how he acquired the guns, where he
was when he planned the shooting, the fact that he was seeking
revenge for earlier gang violence, and the fact that Walker's
victim was not actually a member of the targeted gang.

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Walker was convicted and Johnson, his co-defendant, was
not. But, while Walker contends in his brief to us that the only
difference between the government's case against him and its case
against Johnson was the evidence of Harrison's identification, the
record shows otherwise.
For example, Boyd, who was cooperating with the
Commonwealth's investigation of both Walker and Johnson and who
had testified to both defendants' involvement in the shootings,
offered considerably more detailed testimony regarding Walker's
involvement. Boyd did not mention in his testimony regarding his
conversation with Johnson anything about either of the victims,
the location of the crime, a date, or any other circumstances
surrounding the shooting. By contrast, Boyd, in his testimony
regarding his conversation with Walker, included all of these
details.
Clark's and Dotson's testimony was, similarly, more
descriptive of Walker's involvement in the shooting than of
Johnson's. Clark, for example, testified that, prior to the
shooting, Walker asked Clark to accompany him up the street "[s]o
[they] could kill anybody over there." And while Clark did then
go on to testify that Johnson also participated in the shooting,
his account of Johnson's involvement, notably, lacked any
similarly explicit quotations. Dotson, for his part, testified
that he had stolen the car that Walker used to commit the murder.

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He also testified that he saw Walker get into the car just hours
before the shooting, but that he had not seen Johnson at all that
day. Nor did Dotson at any point testify that Johnson was involved
in the shooting in any way.
In sum, Boyd, Clark, and Dotson each provided detailed
incriminating testimony against Walker that differed substantially
from the testimony that each of them provided against Johnson, who
was acquitted. Additionally, Harrison's own testimony concerning
the identification was hardly compelling. We thus cannot say that
the SJC's ruling that the evidence, considered as a whole, did not
establish that Walker's counsel's failure to move to suppress
Harrison's out-of-court identification resulted in a "miscarriage
of justice" is unsustainable under AEDPA's deferential review
standard. For that reason, despite the fact that the SJC raised
understandable concerns about the use of an all-suspect array, we
see no basis for concluding that, in this case, the use of that
array suffices to warrant the conclusion that Walker is entitled
to habeas relief.
III.
For the foregoing reasons, we affirm the District
Court's rejection of Walker's petition for habeas relief. The
parties shall bear their own costs.

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