United States District Court, D. Massachusetts
OPINION AND ORDER
George A. O’Toole, Jr. United States District Judge
The petitioner, Andre Walker, was convicted of first degree murder, armed assault with intent to murder, and possession of an unlicensed firearm by a jury in Suffolk Superior Court and sentenced to life imprisonment. He filed a timely notice of appeal and thereafter filed a motion for a new trial. The trial court, after an evidentiary hearing, denied the new trial motion, and the Supreme Judicial Court affirmed both Walker’s convictions and the denial of the motion for a new trial. Commonwealth v. Walker, 953 N.E.2d 195 (Mass. 2011). The facts of the case are set forth in detail in the SJC’s opinion. Walker now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
I. Standard of Review
The applicable standard of review is set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a petitioner must show that the state court decision “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). “A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in a holding of [the United States Supreme] Court.” Thaler v. Haynes, 559 U.S. 43, 47 (2010) (citations omitted).
A state court decision is “contrary to” clearly established federal law if “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or if “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision involves an “unreasonable application” of established federal law “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.” Id. at 413.
Habeas relief may also be granted if a state court decision “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); accord Burt v. Titlow, 134 S.Ct. 10, 15 (2013). However, “a determination of a factual issue made by a State court shall be presumed to be correct, ” 28 U.S.C. § 2254(e)(1), and a habeas petitioner “bears the burden of rebutting the state court’s factual findings ‘by clear and convincing evidence.’” Titlow, 134 S.Ct. at 15 (quoting 28 U.S.C. § 2254(e)(1)).
Unreasonableness in the § 2254 context requires “some increment of incorrectness beyond error.” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (citation omitted); accord Williams, 529 U.S. at 410-11 (cautioning that “an unreasonable application of federal law is different from an incorrect application of federal law” (emphasis in original)). “The increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court.” McCambridge, 303 F.3d at 36 (citation omitted). The statute establishes “a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Hardy v. Cross, 132 S.Ct. 490, 491 (2011) (per curiam) (quoting Felkner v. Jackson, 562 U.S. 594, 598 (2011)). It is a standard that is “difficult to meet.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (citation omitted).
II. Ineffective Assistance of Counsel
The petitioner first claims that he was denied the right to effective assistance of counsel in violation of the Sixth Amendment. Under Strickland v. Washington, a petitioner asserting a claim of ineffective assistance must show that (a) his counsel’s performance “fell below an objective standard of reasonableness, ” and (b) “the deficient performance prejudiced the defense, ” which “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.” 466 U.S. 668, 687 (1984). The petitioner asserts several instances of ineffective assistance.
A. Failure to Move to Suppress Identification
The petitioner first argues that he was denied effective assistance of counsel because his attorney failed to file a motion to suppress an out-of-court identification made by a government witness, Sylvester Harrison. To succeed on such a claim of ineffectiveness under Strickland, Walker “must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The petitioner’s claim founders on the first part of the Strickland formulation.
The central question in assessing whether an out-of-court identification should be excluded from evidence is whether the identification procedure was “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). The petitioner argues that Harrison’s out-of-court identification fits that description. If that were so, the failure to move to keep it out of evidence could qualify as deficient attorney performance for Strickland purposes.
The problem for the petitioner is that the state court factual findings, first by the trial judge in his lengthy and meticulous memorandum denying the new trial motion-after providing the defendant an evidentiary hearing to present, in effect, the motion to suppress he contended should have been pursued-and then by the SJC in affirming the denial, were that it was unlikely that Walker’s defense counsel would have succeeded in proving that the identification procedures were impermissibly suggestive. The SJC said:
Because we conclude, based on our independent review of the evidence, that the judge’s findings were not clearly erroneous, we accept these findings and agree that the defendant would not likely have been successful in proving ...