United States District Court, D. Massachusetts
BRYAN R. JOHNSTON, Petitioner,
LISA A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent.
MEMORANDUM & ORDER
WILLIAM G. YOUNG WILLIAM G. YOUNG DISTRICT JUDGE.
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 admitted that he killed the victim, but
argued that he lacked criminal responsibility for his actions
under Massachusetts law. The Supreme Judicial Court
(“SJC”) affirmed his convictions and the denial
of his motion for a new trial. Commonwealth v.
Johnston, 467 Mass. 674 (2014).
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.
raises some troubling issues: for example, the jury ought not
have heard about Johnston's repeated requests to speak
with his attorney while at Bridgewater State Hospital.
Reviewing his petition under the strictures of the current
habeas statutory framework, however, the Court cannot grant
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, 438 F.3d 35, 39 (1st Cir. 2006) (internal
citations omitted). As the issues raised on habeas all relate
to Johnston's statements after the crime, or to
counsel's decisions at trial,  the discussion of the
underlying facts will be concise.
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. Driving back to his own apartment
after the shooting, Johnston wrecked his car and, after
failing a field sobriety test, “was allowed [by two
police officers] to telephone a friend[, ]” who drove
him back to his apartment at about 1:00 AM on December 7,
2004. Id. at 678-79.
[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 (alterations in original).
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 Westfield 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
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 a dumpster at the apartment complex,
investigators also recovered a gun case capable of holding a
Id. at 679.
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. These paranoid
delusions caused him to flee Hawaii, where he had been
attending college, in 2002, and enroll at Westfield State
College, in Massachusetts. See Id. at 680-81. He
continued to experience them while in
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. Johnston
also “claimed to have seen the victim at Westfield
State College the day before the murder. The victim walked
out of a class (where he was not a student), smiled eerily at
the defendant, and said, ‘I can get you whenever I
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. There was
expert testimony at trial regarding Johnston's mental
illnesses and their effect on his criminal responsibility.
Johnston presented testimony from two experts: Dr. Carol
Feldman (“Dr. Feldman”), “a forensic
psychologist, ” and Dr. Martin Kelly (“Dr.
Kelly”), “a forensic psychiatrist.”
Id. at 682-83. “Dr. Feldman opined that, at
the time of the killing, [Johnston] suffered from the mental
illness paranoid schizophrenia and, although he generally
appreciated the wrongfulness of killing, he lacked
substantial capacity to appreciate the wrongfulness of
killing the victim, and he was unable to conform his conduct
to the requirements of the law.” Id. at 683.
“Dr. Kelly testified that [Johnston] lacked criminal
responsibility due to a paranoid delusional disorder.”
Id. This disorder can exist alongside normal
functioning, and, Dr. Kelly testified, Johnston's
delusions were caused by it, and not by drug or alcohol use.
Id. at 683-84. The Commonwealth's expert
witness, Dr. Michael Welner (“Dr. Welner”), on
the other hand, “testified that [Johnston] did not
suffer from a major mental illness[, ]” and instead
that “his drug use” caused the actions.
Id. at 684.
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 firearm in the commission or
attempted commission of a felony; and (4) possession of a
large capacity firearm without a license.” Id.
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. His motion for a new trial
was denied without an evidentiary hearing. Id. at
676. The SJC consolidated his direct appeal and appeal from
the denial of the new-trial motion and affirmed. Id.
at 676-77. He filed a petition for habeas corpus in this
Court. Compl., ECF No. 1. The matter has been fully briefed,
see Pet'r's Mem.; Resp. Lisa A. Mitchell's Mem.
Opp. Pet. Writ Habeas Corpus (“Govt.'s
Mem.”), ECF No. 31; Reply Mem. Supp. Pet. Habeas Corpus
(“Pet'r's Reply”), ECF No. 36,
the Court held a hearing on June 29, 2016, Elec. Clerk's
Notes, ECF No. 40.
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.
Standard of Review
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;
(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).
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 argues gives
rise to a Sixth-Amendment claim -- and, with respect, that
court did appear to misunderstand this argument --the SJC's
opinion nonetheless suffices as an adjudication on the
merits. See Almonte v. Gelb, No. 14-CV-10538-IT,
2015 WL 1186278, at *5 (D. Mass. Mar. 16, 2015) (Talwani, J.)
(internal citation omitted) (“[T]o treat a claim on the
merits, a state court need not necessarily have expressly
addressed and resolved that claim in its opinion.”).
This ruling is consistent with Supreme Court's
“presumption of merits adjudication, ”
Johnson v. Williams, 133 S.Ct. 1088, 1097 (2013),
even if it is in some tension with the First Circuit's
recent decision in Rosario v. Roden, 809 F.3d 73
(1st Cir. 2015), which called for a more searching
Ineffective Assistance ...