Johnston v. Mitchell

United States Court of Appeals
For the First Circuit

No. 16-2277

BRYAN R. JOHNSTON,

Petitioner, Appellant,

v.

LISA A. MITCHELL,
Superintendent, Old Colony Correctional Center,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Selya, and Kayatta,
Circuit Judges.

David J. Nathanson, with whom Eva G. Jellison and Wood &
Nathanson, LLP were on brief, for appellant.
Jennifer K. Zalnasky, Assistant Attorney General, Criminal
Appeals Division, with whom Maura Healey, Attorney General of
Massachusetts, was on brief, for appellee.

September 8, 2017
 KAYATTA, Circuit Judge. After he was convicted of first

degree murder in Massachusetts Superior Court, Bryan R. Johnston

took a collateral challenge to the Massachusetts Supreme Judicial

Court (SJC), arguing that his counsel rendered constitutionally

ineffective assistance at trial. The SJC affirmed Johnston's

conviction, and the United States District Court for the District

of Massachusetts denied his subsequent petition for a writ of

habeas corpus under 28 U.S.C. § 2254. On appeal, Johnston again

argues that trial counsel made objectively unreasonable decisions

at trial that ultimately led to Johnston's conviction. He contends

that trial counsel should have moved to suppress statements

Johnston made during psychiatric evaluations conducted in jail and

at a hospital after he was arrested and requested a lawyer. He

also contends that trial counsel should have made an effort to

prevent the jury from hearing about the various times that Johnston

asked to speak to his attorney while he was in custody. For the

following reasons, we affirm.

I. Background

The SJC's opinion describes the largely undisputed facts

of this case. See Commonwealth v. Johnston (Johnston I), 7 N.E.3d

424, 429–34 (Mass. 2014). We draw heavily from that account,

adding only the facts necessary to understand the contours of this

appeal.

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 During a telephone call late in the evening of

December 6, 2004, Johnston had an argument with David Sullivan, a

friend from high school with whom Johnston had remained close.

Id. at 429. Soon after the telephone call ended, Johnston drove

thirty-one miles from his home in Westfield, Massachusetts, to

Sullivan's home in Amherst, where Johnston shot Sullivan six times,

killing him. Id.

Driving back to Westfield early in the morning of

December 7, 2004, Johnston stopped in a swampy, wooded area near

a restaurant to dispose of the rifle he used to kill Sullivan.

Id. at 430. Leaving the site, he drove over a log that immobilized

his vehicle. Id. When a snowplow driver stopped to help him,

Johnston told the driver that because he had been drinking, he did

not want to call the police for assistance. Id. Their efforts to

move the car failed, and the snowplow driver left. Id. A short

time later, two police officers who had been dispatched to the

area of the restaurant saw the disabled vehicle and stopped. Id.

Johnston approached them to ask for help. Id. Johnston told the

officers that "he had come from a friend's house and had stopped

to urinate." Id. The officers observed that Johnston's eyes were

glassy and bloodshot and that he smelled lightly of alcohol, so

they asked whether he had been drinking. Id. He admitted he had,

but claimed he had stopped drinking much earlier in the evening

and was "fine" at that time. Id.

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 The officers asked Johnston to perform field sobriety

tests, but Johnston declined because he had heard from a college

professor that field sobriety tests were illegal. Id. The

officers explained that Johnston would not be arrested, but that

he would not be allowed to drive away without demonstrating that

he could safely operate the vehicle. Id. After Johnston took one

sobriety test, the officers determined he was too impaired to drive

safely. Id. Johnston's car was towed and he was allowed to

telephone a friend to drive him home, which Johnston calmly and

collectedly did. Id. Riding with the friend who picked him up,

Johnston told his friend he was relieved he had not been searched,

because, as he showed his friend, he was carrying a handgun despite

the fact that his license to carry had been revoked. Id.

Upon returning home, Johnston called his parents, who

would later testify that he was "making no sense, talking about

the mafia and gangs, and threatening to commit suicide." Id. at

433. An hour later, he spoke on the telephone with his sister,

who later stated that he made "no sense" during the call. Id.

Johnston's parents came to see him in the morning of December 7

and found that his eyes were unfocused and that he was saying

"bizarre" things. Id. Johnston's parents initiated civil

commitment proceedings against him, and police officers served the

commitment order on him later that morning. Id. at 430, 433.

Johnston refused to comply, struggled, and was eventually subdued

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by the officers before being taken into protective custody on

December 7, 2004. Id. at 431.

On December 9, 2004, police found the murder weapon in

the woods with Johnston's fingerprints on it, and they discovered

Sullivan's DNA on a pair of Johnston's pants. Id. Johnston was

placed under arrest for the murder. At the Hampshire County House

of Correction, Johnston "refused to answer questions on advice of

counsel" during a medical intake procedure. Id. at 435. The

following day, the sheriff directed Dr. Michael Sherry to conduct

an examination to determine whether Johnston should be committed

for observation pursuant to section 18(a) of Massachusetts General

Laws chapter 123.1 Id. Johnston's counsel was present for the

1 Section 18(a) provides, in pertinent part, that:
If the person in charge of any place of
detention within the commonwealth has reason
to believe that a person confined therein is
in need of hospitalization by reason of mental
illness at a facility of the department or at
the Bridgewater state hospital, he shall cause
such prisoner to be examined at such place of
detention by a physician or psychologist,
designated by the department as qualified to
perform such examination. Said physician or
psychologist shall report the results of the
examination to the district court which has
jurisdiction over the place of detention or,
if the prisoner is awaiting trial, to the
court which has jurisdiction of the criminal
case. Such report shall include an opinion,
with reasons therefore, as to whether such
hospitalization is actually required. The
court which receives such report may order the
prisoner to be taken to a facility or, if a
male, to the Bridgewater state hospital to be

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examination. Id. Dr. Sherry determined that Johnston needed to

be hospitalized because he was in danger of harming himself. Id.

A petition was therefore filed in court seeking Johnston's thirty-

day commitment to Bridgewater State Hospital (Bridgewater). Id.;

see Mass. Gen. Laws ch. 123, § 18(a). A judge approved the order

the same day. Johnston I, 7 N.E.3d at 435. Over the weeks that

followed, Johnston was approached numerous times by medical

personnel who asked him questions about his mental state. Id. at

436. Medical staff made notes about these conversations, most of

which showed Johnston repeatedly and frequently stating that he

did not wish to respond until he could speak to his lawyer. Id.

at n.3.

At trial, Johnston's sole defense was lack of criminal

responsibility. Id. at 431. The evidence at trial showed that he

was a regular user of drugs and alcohol. Id. It also showed that

he began experiencing hallucinations and delusions while attending

college in Hawaii, during which time he reported to his family

that he was being followed, surveilled, and stalked. Id. He

feared the "mafia" and the Federal Bureau of Investigation, both

of which he thought were after him. Id. at 431–32. He began

taking steroids so that he would grow strong enough to protect

received for examination and observation for
a period not to exceed thirty days.
Mass. Gen. Laws ch. 123, § 18(a).

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himself and his family. Id. at 432. Fearing that the mafia was

pursuing him, he abandoned his studies in Hawaii and enrolled at

a college in Massachusetts in 2002. Id. "His professors recalled

him as being friendly, highly competent, intelligent, and well

respected by his peers. They did not observe any unusual behavior

or comments." Id. Meanwhile, at one point in the fall of 2002,

Johnston walked into a police department and, in a panic, reported

he was being chased. Id. Later, when Sullivan extended an offer

to become roommates, Johnston declined because he was concerned

that Sullivan was "a crime family boss" and that many of their

friends were also involved with organized crime. Id. Johnston

believed that Sullivan had threatened him and also claimed to

believe that Sullivan's crime family had arranged to have Johnston

sexually assaulted while he had been living in Hawaii. Id.

Johnston presented at trial the expert testimony of a

psychologist, Dr. Carol Feldman, and a psychiatrist, Dr. Martin

Kelly. Id. at 433. Dr. Feldman opined that Johnston was suffering

from paranoid schizophrenia at the time of the killing and was

deluded into believing he was being persecuted by the victim and

others. She determined that Johnston "experienced hallucinations

in which he heard voices of people intending to kill him, and

delusions of being subjected to surveillance." Id. Dr. Kelly

opined that Johnston suffered from a paranoid delusional disorder.

Id. This disorder would not be "characterized by a decline in

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functioning, which explains his capacity to work . . . and attend

college." Id. Dr. Kelly also testified that drug and alcohol use

were not the cause of Johnston's delusions. Id. at 433–34. The

Commonwealth offered an expert in rebuttal, Dr. Michael Welner, a

psychiatrist who opined that Johnston was likely not schizophrenic

and likely did not suffer from paranoid delusional disorder. Id.

at 434. Rather, Dr. Welner said, Johnston's hallucinations likely

originated from his drug use. Id.

The jury convicted Johnston of first degree murder,

armed burglary, possession of a large capacity firearm in the

commission of a felony, and possession of a large capacity firearm

without a license. Id. at 429. He appealed to the SJC and moved

for a new trial. Johnston's new trial motion was denied without

an evidentiary hearing, and his appeal of the denial was

consolidated with his direct appeal. Id. The SJC rejected all of

Johnston's claims on appeal, including his claims that he received

ineffective assistance of counsel. Id. Johnston proceeded to the

United States District Court for the District of Massachusetts in

search of a writ of habeas corpus, which was denied. See Johnston

v. Mitchell (Johnston II), 213 F. Supp. 3d 282, 285 (D. Mass.

2016). This timely appeal followed.

II. Discussion

On appeal, Johnston seeks habeas relief based on two

ineffective-assistance-of-counsel claims. First, he argues that

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trial counsel should have moved to suppress evidence stemming from

the conversations Johnston had with mental health professionals

while in jail and while committed at Bridgewater, after he had

refused multiple times to speak without counsel present. Second,

Johnston contends that trial counsel should have prevented the

jury from considering evidence that Johnston repeatedly requested

to speak with his attorney. Johnston presented both of these

arguments to the district court, and both were rejected. Id. The

district court also issued a certificate of appealability, 28

U.S.C. § 2253(c), and Johnston filed this appeal. We review the

district court's denial of Johnston's petition for habeas relief

de novo. See Tran v. Roden, 847 F.3d 44, 50 (1st Cir. 2017).

A.

1.

"[T]he Fifth and Fourteenth Amendments' prohibition

against compelled self-incrimination require[s] that custodial

interrogation be preceded by advice to the putative defendant that

he has the right to remain silent and also the right to the presence

of an attorney." Edwards v. Arizona, 451 U.S. 477, 481–82 (1981)

(citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)). "If the

accused indicates that he wishes to remain silent, 'the

interrogation must cease.' If he requests counsel, 'the

interrogation must cease until an attorney is present.'" Id. at

482 (quoting Miranda, 384 U.S. at 474). "[I]t is inconsistent

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with Miranda and its progeny for the authorities, at their

instance, to reinterrogate an accused in custody if he has clearly

asserted his right to counsel." Id. at 485. Once the right to

counsel under the Fifth Amendment is invoked, custodial

interrogation of a putative defendant may not resume without a

lawyer present, even if the putative defendant has consulted with

an attorney in the interim. See Minnick v. Mississippi, 498 U.S.

146, 153 (1990). The remedy for a violation of these prophylactic

rules, in the ordinary case, is the exclusion of evidence

impermissibly gathered as a result of the violation. See Oregon

v. Elstad, 470 U.S. 298, 306–07 (1985); cf. Harris v. New York,

401 U.S. 222, 224–26 (1971) (evidence obtained in violation of

Miranda is admissible for impeachment purposes).

Johnston contends that the rules sculpted in Miranda,

Edwards, and Minnick were violated when, after he refused to answer

questions during his medical intake at the county jail, he was

subsequently subjected to questioning and psychiatric evaluation

by mental health professionals at Bridgewater without counsel

present. He relies heavily on Estelle v. Smith, 451 U.S. 454, 467

(1981), in which the Supreme Court held that a defendant's

statements given in a court-ordered psychiatric evaluation could

not be considered as evidence of future dangerousness at sentencing

because the defendant was not made aware of his Fifth Amendment

Miranda rights prior to questioning. Johnston argues that his

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invocation of one of those Fifth Amendment rights secured by

Miranda--the right to receive counsel before being questioned--

rendered any subsequent statements made by him without counsel

inadmissible. He therefore argues that his attorney should have

moved to suppress all of the records produced at Bridgewater except

for those of interviews conducted with counsel present. By failing

to do so, says Johnston, trial counsel rendered unconstitutionally

ineffective assistance under Strickland v. Washington, 466 U.S.

668 (1984). In other words, "counsel's representation fell below

an objective standard of reasonableness and . . . there exists a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012).

Johnston mounted the same challenge before the SJC.

Citing Edwards, Minnick, and Estelle's discussions of a putative

defendant's Fifth Amendment right to counsel, he argued that his

responses to medical questions after refusing to answer questions

without counsel present should have been excluded from trial.

Instead, his own trial counsel "moved [for] the admission of the

entire Bridgewater record." The prosecution used Johnston's

statements to Bridgewater staff to "bolster[] the Commonwealth's

position that Johnston['s] functioning was unimpaired" and to

counter his defense based on mental illness. Specifically,

Johnston complained to the SJC that the jury was permitted to

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consider statements he gave to medical staff in which he denied

having hallucinations when asked on December 11, December 17, and

December 18, 2004. Johnston also pointed to records stating that

during a medical examination on December 20, 2004, he denied any

history of sexual abuse. These statements, along with others

admitted at trial, directly undermined Johnston's experts'

testimonies that he suffered from hallucinations and irrationally

feared that he had been raped in Hawaii at the victim's direction.

The SJC found that Johnston's counsel was not

ineffective for failing to seek suppression.2 The court's

explanation for its holding, however, characterized the nested

claim in Johnston's ineffective-assistance claim as a Sixth

Amendment right-to-counsel claim rather than the Fifth Amendment

right-to-counsel claim actually asserted. Indeed, the court

explicitly found that "what [was] not being argued" was "that

[Johnston] invoked his right to remain silent." Johnston I, 7

N.E.3d at 435–36. Rather, said the SJC, Johnston's argument was

"focuse[d] on the right to counsel under the Sixth Amendment to

the United States Constitution, which attached at the time of his

arraignment on the complaint that issued in the District Court."

2
The SJC applied the standard articulated in Commonwealth v.
Comita, 803 N.E.2d 700, 703 (Mass. 2004) (citing Commonwealth v.
Saferian, 315 N.E.2d 878 (Mass. 1974)), which we have found to be
"the functional equivalent of the federal Strickland standard."
Powell v. Tompkins, 783 F.3d 332, 349 n.12 (1st Cir. 2015).

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Id. at 436. Finding that Johnston's pre-arraignment psychiatric

evaluations were not critical stages of his criminal proceeding,

the SJC held that Johnston "had no Sixth Amendment right that

required hospital staff to refrain from interviewing him or to

terminate interviews with him until counsel was present." Id. It

accordingly found that a suppression motion "based on an alleged

violation of the defendant's Sixth Amendment right to counsel[]

would not have succeeded," so trial counsel did not provide

ineffective assistance by failing to file such a motion. Id.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 28 U.S.C. § 2254, "we are typically required to

accord substantial deference to a state court's decision on the

merits." Jackson v. Marshall, 864 F.3d 1, 9 (1st Cir. 2017). If

a claim was "adjudicated on the merits in State court proceedings,"

28 U.S.C. § 2254(d), we may grant habeas relief on that claim only

if the state adjudication "was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States," Williams v.

Taylor, 529 U.S. 362, 376 (2000) (opinion of Stevens, J.) (quoting

28 U.S.C. § 2254(d)(1)), or "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). "Only when

a petitioner's claims are exhausted in state court but the state

court fails to consider them on the merits or resolve them on

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adequate and independent state law grounds do we review them de

novo." Jackson, 864 F.3d at 9 (citing Jenkins v. Bergeron, 824

F.3d 148, 152 (1st Cir. 2016)).

Johnston contends that this is one such situation. He

construes the SJC's missive that "what [was] not being argued . . .

[was] that he invoked his right to remain silent" to mean that the

SJC refused to consider the Fifth Amendment grounds that would

have supported a suppression motion. Johnston I, 7 N.E.3d at 435–

36. Although Johnston acknowledges that we must presume, absent

contrary indication, that a state court's adjudication is "on the

merits," he notes that this presumption may be rebutted "when there

is reason to think some other explanation for the state court's

decision is more likely." Harrington v. Richter, 562 U.S. 86, 99–

100 (2011). There is plenty of reason to think so here, says

Johnston: By affirmatively stating that Johnston was not arguing

that counsel should have sought suppression under the Fifth

Amendment, and instead evaluating only whether counsel should have

sought suppression under the Sixth Amendment, the SJC was presented

with Johnston's claim but failed to consider it.

Clearly appreciating and acknowledging the conduct of

counsel that Johnston alleged to be ineffective assistance, the

SJC stated: "The defendant . . . claims that trial counsel was

ineffective for failing to move to suppress all responses the

defendant made to officers at the Hampshire County house of

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correction . . . and at Bridgewater State Hospital . . . after

invoking his right to assistance of counsel." Johnston I, 7 N.E.3d

at 435. The SJC also clearly understood that Johnston was arguing

that a motion to suppress would have succeeded because "assertion[]

of his right to assistance of counsel . . . required hospital staff

to refrain from talking to him." Id. at 436. Nevertheless, what

the SJC seems not to have understood is Johnston's grounding of

his argument in the standards of the Fifth, rather than the Sixth,

Amendment. This misapprehension likely arose from Johnston's

failure to mention the Fifth Amendment by name in his initial brief

to the SJC, although he did rely primarily on Fifth Amendment cases

such as Edwards and Minnick. See generally Estelle, 451 U.S. at

462, 469 (differentiating the Fifth Amendment right to counsel

from the Sixth Amendment right to counsel).

Ultimately, we need not decide whether the SJC's

apparent misapprehension of the precise argument being made to it

means that it did not adjudicate Johnston's claim on the merits.

Rather, we can assume such a failure, yet nevertheless affirm on

de novo review because Johnston has not demonstrated that trial

counsel's performance in failing to seek suppression of his

statements to medical personnel on Fifth Amendment grounds was so

deficient as to constitute a deprivation of his Sixth Amendment

right to counsel.

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 2.

Where an ineffectiveness claim is based on counsel's

decision not to file a suppression motion, the petitioner must

demonstrate that a meritorious claim formed the basis of the

proposed motion in order to establish deficient performance. See

Lockhart v. Fretwell, 506 U.S. 364, 374 (1993) (O'Connor, J.,

concurring) (citing Kimmelman v. Morrison, 477 U.S. 365, 382

(1986)); Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017)

(stating that a claimant can only show deficient performance under

Strickland if he can prove a suppression motion would have been

meritorious); Jaynes v. Mitchell, 824 F.3d 187, 196 (1st Cir. 2016)

(Souter, J.) (stating that a claimant must show the claim

underlying the proposed suppression motion is meritorious, but

classifying this requirement as an aspect of the prejudice prong,

rather than the deficient-performance prong, of Strickland);

United States v. Mercedes-De La Cruz, 787 F.3d 61, 67 (1st Cir.

2015) (same).

We begin with the state of the law as reasonable counsel

would have perceived it. Even today, Johnston points to no federal

or state court decision holding that a putative defendant's

responses to doctors' mental-health questions posed after the

invocation of the right to counsel must be excluded when the

defendant puts his mental state or capacity directly at issue.

See Vargas-De Jesús v. United States, 813 F.3d 414, 418 (1st Cir.

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2016) (observing that a lack of favorable precedent is one factor

that can undermine a showing of deficient performance). Johnston

argues that Estelle, Edwards, and Minnick formed a framework within

which any reasonably competent lawyer would think a suppression

motion filed on these grounds had merit. But Edwards and Minnick

provide only the baseline principles that, in the ordinary case,

a defendant's statements should be excluded if solicited by police

after the defendant makes an affirmative, unambiguous invocation

of the Fifth Amendment right to counsel, see Edwards, 451 U.S. at

485, and that an intervening meeting between the defendant and his

counsel does not sterilize statements given in subsequent

interrogations where counsel is not present, see Minnick, 498 U.S.

at 153–55. Neither case involved medical professionals asking

questions aimed at evaluating whether the putative defendant is a

danger to himself or others or requires medical treatment, and

neither case provided that answers given to any and all questions

asked after the invocation of a Miranda right must be excluded.

Cf. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (recognizing

"'routine booking question' exception which exempts from Miranda's

coverage questions to secure the 'biographical data necessary to

complete booking or pretrial services'" (quoting United States v.

Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989))).

Estelle, for its part, provides that a defendant is

entitled, under the Fifth Amendment, to a Miranda warning before

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speaking to a court-appointed psychiatrist if the prosecution

seeks to admit the psychiatrist's testimony to demonstrate the

defendant's future dangerousness. Estelle, 451 U.S. at 469. But

the Court in Estelle expressly declined to address the propriety

of admitting evidence gathered in a Miranda-violative psychiatric

examination in cases where the defendant "attempts to

introduce . . . psychiatric evidence." Id. at 468.

Johnston also argues that the D.C. Circuit's opinion in

United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982) (per

curiam), abrogated on other grounds by Hudson v. Palmer, 468 U.S.

517 (1984), demonstrates that he had a meritorious Fifth Amendment

claim. There, the defendant, John Hinckley, Jr., was arrested for

attempting to assassinate President Ronald Reagan. Id. at 117.

After being turned over to the FBI, he informed agents that he

would not make any statement until he consulted with his attorney.

Id. at 120. Later, and without Hinckley waiving the right he had

invoked, two agents conducted a twenty-five-minute "background"

interview in which they asked Hinckley questions about his

background, his marital status, his educational and employment

history, his medical problems, his history of psychiatric

treatment, and his relationship with his family (among other

things). Id. at 121. The district court granted suppression of

the answers given to the agents' questions and of the testimonies

of the agents as to Hinckley's demeanor during the interview, and

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the D.C. Circuit affirmed. Id. at 119. The D.C. Circuit rejected

the government's argument that because the agents should not have

known their questions were reasonably likely to elicit an

incriminating response from Hinckley, the interview was not a

"custodial interrogation" under Rhode Island v. Innis, 446 U.S.

291 (1980). Hinckley, 672 F.2d at 124–25. The court observed

that the "agents who conducted the 'background' interview of

Hinckley would naturally have been aware of the likelihood that he

would present an insanity defense," and "most details about an

individual's background are relevant to a determination of sanity,

[so] a systematic 'background' interview necessarily elicits

responses that the prosecution might want to introduce at trial."

Id. at 124–25.

Hinckley had nothing to say, however, about whether

statements made to physicians in the wake of an unfulfilled request

for counsel must be excluded even when the defendant introduces

the testimony of a psychiatric expert who opines on the defendant's

mental state. On that subject, the Supreme Court in Estelle

acknowledged and distinguished, with no hint of disapproval,

numerous opinions holding that it is not a Fifth Amendment

violation to require a defendant "to submit to a sanity examination

conducted by the prosecution's psychiatrist" if "the defendant

asserts the insanity defense and introduces supporting psychiatric

testimony," because the defendant's "silence may deprive the State

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of the only effective means it has of controverting his proof on

an issue that he interjected into the case." 451 U.S. at 465–66.

And a few years after Hinckley was decided, the Supreme Court

blessed the admission of a psychiatric report describing "general

observations about the mental state of [a] petitioner." Buchanan

v. Kentucky, 483 U.S. 402, 423 (1987). The Court in Buchanan

distinguished Estelle by noting both that trial counsel joined in

the motion requesting an examination and that "petitioner's entire

defense strategy was to establish the 'mental status' defense of

extreme emotional disturbance." Id. "In such circumstances," the

Court explained, "with petitioner not taking the stand, the

Commonwealth could not respond to this defense unless it presented

other psychological evidence." Id.

The law of Massachusetts also suggested the difficulty

of prevailing on the challenge Johnston contends counsel should

have mounted. In Blaisdell v. Commonwealth, the SJC determined

that "a defendant who seeks to put in issue his statements as the

basis of psychiatric expert opinion in his behalf opens to the

State the opportunity to rebut such testimonial evidence in

essentially the same way as if he himself had testified." 364

N.E.2d 191, 200 (Mass. 1977). In Seng v. Commonwealth, the SJC

indicated even less concern that a criminal defendant's Fifth

Amendment right against self-incrimination is implicated in an

examination "not directed to the ultimate issue to be decided--

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whether the defendant is guilty of the crime," like an examination

for competence rather than to assess criminal responsibility. 839

N.E.2d 283, 291 (Mass. 2005).

Since the conclusion of Johnston's trial, the Supreme

Court has reaffirmed its holding in Buchanan that "where a defense

expert who has examined the defendant testifies that the defendant

lacked the requisite mental state to commit an offense, the

prosecution may present psychiatric evidence in rebuttal." Kansas

v. Cheever, 134 S. Ct. 596, 601 (2013) (citing Buchanan, 483 U.S.

at 408, 422). In Cheever, the Supreme Court found no Fifth

Amendment violation where, to rebut the defendant's evidence that

he lacked the mental capacity to commit the charged crime, the

prosecution proffered evidence from a court-ordered psychological

examination. Id. at 602–03.

Johnston seeks to distinguish Buchanan and Cheever by

pointing out that the petitioner in Buchanan joined the motion for

a psychiatric examination and did not proactively invoke his

Miranda rights, while Cheever declined to decide whether the

psychiatric examiner's statements went beyond merely rebutting the

defendant's psychiatric evidence. Johnston also points out that

the psychiatric evaluations in these cases were different in

character from the intake procedures conducted and the questions

asked during rounds while he was being observed at Bridgewater.

It is true that neither Buchanan nor Cheever dealt with a precise

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factual analogue to this case. But the point we make here is not

that Cheever controls; after all, it was decided after Johnston's

trial was completed. Rather, the point is that Cheever would not

read as it does if the prior case law had offered strong support

for the notion that the results of a psychiatric examination

compelled without counsel present could not be offered by the

government in a case in which a defendant mounted an insanity

defense.

To some extent, Johnston's argument on this front boils

down to the notion that a suppression motion would not have been

frivolous, so his attorney had nothing to lose and everything to

gain by taking a shot at it. But a lawyer's performance does not

fall to the level of a Sixth Amendment violation under Strickland

simply because the lawyer fails to pursue any and all nonfrivolous

strategies. See Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)

("The law does not require counsel to raise every available

nonfrivolous defense. Counsel also is not required to have a

tactical reason--above and beyond a reasonable appraisal of a

claim's dismal prospects for success--for recommending that a weak

claim be dropped altogether." (citations omitted)). Rather,

except perhaps in an unusual case presenting circumstances not

present here, when defense counsel is faulted for having failed to

file a motion to suppress, the failure may constitute ineffective

assistance under Strickland only when "no competent attorney would

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think a motion to suppress would have failed." Premo v. Moore,

562 U.S. 115, 124 (2011).

Johnston cannot meet that test. With nary an on-point

case in support and plenty of signals from the state and federal

courts pointing the other way, it was reasonable for trial counsel

to conclude that a Fifth-Amendment-based suppression motion was

highly likely to fail and thus was not worth bringing. Johnston's

ineffective-assistance claim therefore fails.3 See United States

v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998) (finding counsel's

conduct "well within the acceptable range of reasonable

professional assistance" because counsel relied on precedent that

led him to "reasonably believe[]" a suppression motion "would be

of no benefit to his client"). And because we find that Johnston

fails to establish deficient performance under Strickland, we need

not proceed to consider whether he has established prejudice under

Strickland on this first claim.

3 The district court came to the same conclusion, but it did
so on different grounds, finding that because the "medical
interviews were not of a criminal-investigative nature," they "did
not constitute 'interrogations' under the Fifth Amendment."
Johnston II, 213 F. Supp. 3d at 292 (citing Coble v. Quarterman,
496 F.3d 430, 440 (5th Cir. 2007)). While we need not and do not
decide whether this finding was correct, the fact that the district
court judge so concluded certainly supports the point that trial
counsel (like the district court here) could have reasonably viewed
a suppression motion as doomed to fail.

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 B.

Johnston's second claim on appeal is narrower: He

contends that he received ineffective assistance of trial counsel

because his attorney failed to move to redact the Bridgewater

medical records so that the jury would not see Johnston's numerous

refusals to answer questions on advice of counsel and his requests

that he be permitted to confer with counsel. According to

Johnston, these references were prejudicial because they allowed

the jury to draw an adverse inference that Johnston was withholding

inculpatory evidence. Johnston concedes that the SJC adjudicated

and rejected this Strickland claim on the merits, and he makes no

claim that the SJC's 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). Hence, we

consider only whether the SJC's conclusion "was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States." Id. § 2254(d)(1).

A meritorious Strickland claim requires a claimant to

establish both deficient performance and prejudice. Prejudice

under Strickland requires a showing that there is a "reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Porter v.

McCollum, 558 U.S. 30, 38–39 (2009) (quoting Strickland, 466 U.S.

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at 694). "A reasonable probability is one 'sufficient to undermine

confidence in the outcome.'" González-Soberal v. United States,

244 F.3d 273, 278 (1st Cir. 2001) (quoting Strickland, 466 U.S. at

694).

The SJC found that Johnston was not prejudiced by his

counsel's failure to attempt to redact the Bridgewater records.

It noted that "[t]he evidence of [Johnston's] refusals on advice

of counsel and his request to confer with counsel played a minor

role in the battle of experts on the question of criminal

responsibility, with an enormous amount of personal history,

conduct, and other material as ammunition for that battle."

Johnston I, 7 N.E.3d at 439 (internal quotations omitted). The

SJC observed that the jury was presented with evidence that

Johnston "disposed of the murder weapon and cleverly avoided

potential problems with the two Hadley police officers who were

dispatched to the restaurant"; that his employer thought him highly

competent and reliable in stressful situations; that faculty at

his college thought him capable and observed no unusual behavior

from him; that friends said that "he appeared normal when sober";

that he had never been hospitalized for psychosis before; and that

the doctor who conducted his Massachusetts General Laws

chapter 123, section 18(a) evaluation on January 6, 2005, testified

that Johnston "did not show psychotic symptoms while at Bridgewater

State Hospital." Johnston I, 7 N.E.3d at 438–39. The SJC also

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recounted that the trial judge "forcefully instructed the jury

that [Johnston's] refusals to answer questions on advice of counsel

were 'appropriate,'" and that the jury "should 'not draw any

adverse inference from the fact that somebody has been advised by

their attorney not to answer questions,' 'either because of the

advice or because actions were taken pursuant to the advice.'"

Id. at 439.

On this record, we cannot conclude that the SJC's finding

of no prejudice 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).

To the contrary, it seems perfectly reasonable to conclude that

any jury that would find evidence of sanity in Johnston's assertion

of his rights would certainly find more than ample evidence of

sanity in the other testimony concerning Johnston's behavior and

comments. Moreover, Johnston's theory in this case was not that

he was never lucid and rational. Rather, it was that he

episodically acted delusionally. The challenged evidence bore

very little on that issue. AEDPA requires us to consider not

whether we agree with the SJC's holding, but rather whether the

SJC misconstrued or misapplied clearly established federal law in

finding no prejudice to Johnston. From this deferential vantage

point, we cannot say that it did.

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 III. Conclusion

For the most part, the SJC clearly understood and

reasonably rejected Johnston's claims on the merits in a manner

consistent with federal constitutional law. To the extent that

the SJC misapprehended Johnston's argument regarding his Fifth

Amendment rights, Johnston suffered no prejudice because his

Strickland argument pertaining to his questioning by mental health

officials would not have prevailed. For these reasons, we affirm.

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