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Johnston v. Mitchell

United States District Court, D. Massachusetts

October 3, 2016

BRYAN R. JOHNSTON, Petitioner,
v.
LISA A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent.

          MEMORANDUM & ORDER

          WILLIAM G. YOUNG WILLIAM G. YOUNG DISTRICT JUDGE.

         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 admitted that he killed the victim, but argued that he lacked criminal responsibility for his actions under Massachusetts law.[1] 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).

         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 Bridgewater 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, 438 F.3d 35, 39 (1st Cir. 2006) (internal citations omitted).[2] As the issues raised on habeas all relate to Johnston's statements after the crime, or to counsel's decisions at trial, [3] the discussion of the underlying facts will be concise.

         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. 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 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 a dumpster 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. 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 Massachusetts.[4]

         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. 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 want.'” Id.

         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. 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.

         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 firearm in the commission or attempted commission of a felony; and (4) possession of a large capacity firearm without a license.” Id. at 676.

         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. 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, [5] and the Court held a hearing on June 29, 2016, Elec. Clerk's Notes, ECF No. 40.

         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 argues gives rise to a Sixth-Amendment claim -- and, with respect, that court did appear to misunderstand this argument[6] --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), [7] 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 inquiry.[8]

         B. Ineffective Assistance ...


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