          United States Court of Appeals
                        For the First Circuit


No. 16-2167

                             EBER RIVERA,

                        Petitioner, Appellant,

                                  v.

                 MICHAEL A. THOMPSON, Superintendent,

                        Respondent, Appellee.


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

              [Hon. Indira Talwani, U.S. District Judge]


                                Before

                         Howard, Chief Judge,
                   Selya and Lipez, Circuit Judges.


     Benjamin Brooks, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
     Todd Michael Bloom, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.


                           January 9, 2018
             LIPEZ, Circuit Judge.           Eber Rivera appeals from the

district court's denial of his petition for a writ of habeas corpus

under 28 U.S.C. § 2254.         Rivera was convicted in Massachusetts

state court after a jury trial on charges arising from the stabbing

of Robert Williams during an altercation between the two men.

Rivera contends that his Sixth Amendment right to the effective

assistance of counsel was violated when his trial counsel: (1) did

not move to suppress inculpatory statements he made in response to

questions from a police officer while in custody; and (2) failed

to introduce at trial evidence promised in her opening statement

that a third party committed the stabbing.                Because we conclude

that   trial    counsel's    failure    to    move   to    suppress   Rivera's

statements     to   the     police     officer    constituted     ineffective

assistance of counsel under clearly established law, we reverse

and remand with instructions to grant the writ.               We do not reach

the other ground on which Rivera bases his Sixth Amendment claim.

                                       I.

A. Factual Background

             Rivera was indicted by a grand jury in Middlesex County,

Massachusetts, for armed assault with intent to murder (count I),

assault and battery by means of a dangerous weapon causing serious

bodily injury (count II), and assault and battery upon a public

employee (count III).        See Mass. Gen. Laws ch. 265, §§ 13D, 15,

15A(b).   The first two charges stemmed from a fight in the early


                                     - 2 -
morning of December 16, 2007, during which Williams was stabbed.

The third stemmed from an altercation with a police officer at the

police station after Rivera was arrested.

          At the six-day trial, the jury was presented with the

following testimony.   Rivera, Williams, Ana Reyes, Josue Gonzalez,

and Robert Zonghi were gathered at Reyes' apartment drinking,

talking, and playing dominos. Gonzalez testified that he left the

room where Rivera and Williams were sitting for a few minutes.

When he returned, the atmosphere in the room had changed. He

speculated that "[a]t some point something happened that kind of

triggered [Rivera]," who soon walked outside followed by Williams.

Gonzalez then saw through the window that Rivera and Williams were

engaged in a fist fight, but he did not see who initiated it.

Rivera's attempts to hit Williams were unsuccessful, and Williams,

who was bigger, quickly gained the upper hand.   Gonzalez saw that

Williams had pinned Rivera to the ground and was punching him,

with Rivera in a position where he "couldn't do nothing."   At that

point, "everybody went outside" to attempt to break up the fight.

Gonzalez did not see what happened next, but he heard Williams say

"I think he stabbed me," and saw him fall forward onto Rivera.

Gonzalez testified that he initially did not believe that Williams

had been stabbed because he did not remember Rivera having a knife,

and he did not see a knife during the altercation.




                               - 3 -
             Gonzalez   and     Zonghi   brought     Williams   inside    the

apartment.     Zonghi testified that, by the time he came outside,

Williams was on the ground bleeding.        Reyes testified that she did

not see what happened during the fight, but that she did see

Gonzalez and Zonghi helping Williams, who was bleeding from the

stomach and face, into the apartment.              It was later determined

that Williams had been stabbed in the head, abdomen, and chest,

causing damage to his heart and liver and significant internal

bleeding and blood loss.        Gonzalez and Reyes both testified that

they did not see Rivera following the stabbing.

             After bringing Williams inside, Gonzalez called 911, and

Framingham     Police   Officer    Arthur   Sistrand,    who    was   nearby,

responded to the call.        Sistrand testified that he turned onto the

street where the altercation happened within thirty or forty

seconds of receiving the call, and he saw Rivera jogging across

the street away from the address where the stabbing had been

reported.     Sistrand, who was in uniform, got out of his marked

police cruiser and ordered Rivera to stop, but Rivera continued

jogging on the sidewalk.        Sistrand then drew his gun and ordered

Rivera to get on the ground. Rivera complied, laying in the street

in a prone position. Sistrand testified that he noticed that

Rivera's right hand was bleeding and called for backup.

             With Rivera still on the ground and Sistrand's gun still

drawn, Sistrand asked Rivera what he was doing.           Rivera responded


                                    - 4 -
that he "had a beef with a nigger."        Sistrand then asked him why,

and Rivera responded that he had been "disrespected."              Sistrand

asked Rivera for his name, but Rivera declined to give it, stating

that he was "too out of breath and too cold to respond."              About

thirty seconds later, Sistrand asked Rivera how he had hurt his

hand, and Rivera said that he had cut it on a ring.            After that,

Rivera "stated that he was cold, and he wasn't answering any more

of [Sistrand's] questions."        Backup soon arrived and Rivera was

handcuffed and taken to the police station.

            During booking at the police station, Sergeant Scott

Brown asked Rivera to remove his clothing that had blood on it so

that it could be processed as evidence. Rivera refused and became

combative, yelling at Brown and using racial slurs toward him.

When Brown tried to remove Rivera's sneaker, Rivera slapped his

hand away.     Brown eventually removed Rivera's clothes, and DNA

testing later revealed that blood on Rivera's jeans belonged to

Williams.

            At trial, the Commonwealth's theory of the case was

straightforward.     It contended that Williams said something that

offended Rivera, leading Rivera to engage Williams in a fistfight

with the intent to stab and murder him.        Rivera's counsel conceded

that Rivera had a fight with Williams, but argued that none of the

witnesses actually saw how the fight started or how the stabbing

occurred,    and   thus   the   prosecution   had   not   proved   beyond   a


                                   - 5 -
reasonable doubt that Rivera committed the stabbing and that any

force used by Rivera was not in self-defense.          She promised in her

opening statement that the jury would hear testimony that there

were two other people involved in an argument with Williams,

including   "Mr.   Ruiz,"   and   that   the   jury   was   "going   to   hear

testimony that a Mr. Ruiz had a bat, and he was also wielding a

knife."1    Despite these promises, however, she did not elicit any

testimony that someone named Ruiz was present during the events in

question, nor did she elicit testimony that anyone present at the

scene of the altercation had a knife or a baseball bat.               In her

closing argument, however, she again mentioned the presence of

"Mr. Ruiz," stating that "Mr. Rivera was present in the same way

that Mr. Gonzalez was, in the same way Mr. Zonghi was, in the same

way Mr. Ruiz was, in the same way Ms. Reyes was."

            The jury found Rivera guilty of all three counts.               He

was sentenced to nine to ten years in state prison for count II

(assault with a dangerous weapon), followed by five years of

supervised probation for counts I (armed assault with intent to

murder) and III (assault on a public employee).2


     1 Counsel apparently intended to refer to Luis Diaz (a.k.a.
Frankie Alvarez), who was reported to be at the scene by several
of the trial witnesses when they initially spoke to police.
Evidently having trouble keeping the names of the men straight,
she also referred at one point to Rivera as "Mr. Gonzalez."
     2 The Commonwealth recommended that the court sentence Rivera
to between ten and twelve years' imprisonment on the armed assault
with intent to murder charge and five years of probation on the


                                   - 6 -
B. Procedural History

            Rivera appealed from his conviction.           While the appeal

was pending, he filed a motion for a new trial pursuant to

Massachusetts Rule of Criminal Procedure 30, claiming that he had

received ineffective assistance of counsel because, among other

errors, his attorney had not moved to suppress his statements to

Sistrand and had failed to introduce the promised evidence that

"Mr. Ruiz" was at the scene of the stabbing wielding a knife.            The

Massachusetts Superior Court denied the motion without a hearing

and without findings of fact or conclusions of law.

            After Rivera appealed that decision, it was consolidated

with his direct appeal.      The Massachusetts Appeals Court denied

the appeals in a summary decision.          See Commonwealth v. Rivera,

966 N.E.2d 867 (Table), No. 10–P–1321, 2012 WL 1623373, at *1

(Mass. App. Ct. May 10, 2012).          With respect to trial counsel's

failure to move to suppress the statements that Rivera made to

Sistrand,   the   court   said   only   that   "it   was   not   ineffective

assistance for counsel to not move to suppress the defendant's

initial statements to the police where the questions did not

constitute interrogation for the purposes of Miranda warnings."


other two counts, to run concurrently. The court chose to instead
impose the total term of imprisonment on count II (assault and
battery with a dangerous weapon) and sentence Rivera to probation
on counts I and III because the possible jail time in the event
that Rivera violated probation on count I (armed assault with
intent to murder) was higher than it would be for count II.


                                  - 7 -
Id. at *1.     Similarly, the court in one sentence disposed of the

claim that counsel was ineffective because she failed to introduce

promised evidence, finding that it "was a matter of tactics based

on how the Commonwealth's evidence unfolded and the lack of

corroboration for the third party's involvement."                  Id.   The court

then concluded that, "[f]or these reasons, and for the reasons

included in the Commonwealth's brief at 13-39, the defendant was

not deprived of the effective assistance of counsel."                     Id.     The

Massachusetts Supreme Judicial Court denied Rivera's petition for

further appellate review.         See Commonwealth v. Rivera, 972 N.E.2d

23 (Table) (Mass. 2013).

           In his petition to the district court for a writ of

habeas   corpus,      Rivera   again     argued    that     he   was   deprived    of

effective assistance of counsel because trial counsel failed to

seek the suppression of his statements to Sistrand and because she

did not introduce the promised evidence of a third-party culprit

at the scene of the stabbing.               The district court denied the

petition, see Rivera v. Thompson, No. 13-11789-IT, 2016 WL 4273180

(D.   Mass.    Aug.     12,    2016),     but     granted    a    certificate      of

appealability pursuant to 28 U.S.C. § 2253(c). Rivera timely filed

this appeal.




                                        - 8 -
                                              II.

A.      Ineffective Assistance of Counsel Standard

             To    prevail       on    an    ineffective        assistance        of   counsel

claim, Rivera must show both that his "counsel's representation

fell     below    an     objective          standard      of     reasonableness"            (the

performance prong), and that "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding       would    have    been       different"        (the   prejudice        prong).

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

             With       respect       to    the    performance        prong,      we   inquire

"whether counsel's assistance was reasonable considering all of

the circumstances," id. at 688, evaluating the attorney's conduct

"from    counsel's        perspective         at    the   time"       and    in     light    of

"prevailing professional norms," id. at 688-89.                         Because there is

"a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance," id. at 689, the

performance of trial counsel is deficient "only where, given the

facts    known     at    the     time,      counsel's     choice       was     so      patently

unreasonable that no competent attorney would have made it," Knight

v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (internal quotation

marks omitted).

             To succeed on the prejudice prong, it is not enough for

Rivera "to show that the errors had 'some conceivable effect on

the outcome,'" but he is also not required to "prove that the


                                             - 9 -
errors were more likely than not to have affected the verdict."

González-Soberal v. United States, 244 F.3d 273, 278 (1st Cir.

2001) (quoting Strickland, 466 U.S. at 693).          Instead, "[a]

reasonable probability is one 'sufficient to undermine confidence

in the outcome.'"   Id. (quoting Strickland, 466 U.S. at 694).   In

essence, the prejudice inquiry is focused on "the fundamental

fairness of the proceeding."   Strickland, 466 U.S. at 696.

B. Habeas Standard of Review

          This case is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254.          AEDPA

dictates that, in reviewing a state court adjudication on the

merits of the petitioner's federal claim, federal courts ask

whether the state court's 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), or was based on "an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding," id. § 2254(d)(2). Pursuant to this standard, a "state

court's decision is not vulnerable unless it evinces some increment

of incorrectness beyond mere error."    Magraw v. Roden, 743 F.3d 1,

4 (1st Cir. 2014) (quoting Leftwich v. Maloney, 532 F.3d 20, 23

(1st Cir. 2008)).   When combined with Strickland's already "highly

deferential" standard for a trial attorney's conduct, 466 U.S. at

689, the AEDPA standard "is 'doubly' so," requiring the court to


                               - 10 -
ask   "whether        there   is   any   reasonable   argument    that    counsel

satisfied      Strickland's        deferential    standard."     Harrington      v.

Richter, 562 U.S. 86, 105 (2011) (quoting Knowles v. Mirzayance,

556 U.S. 111, 123 (2009)).

               However, the AEDPA standard only applies when the state

court has addressed the merits of the petitioner's federal habeas

claim.    See Gray v. Brady, 592 F.3d 296, 301 (1st Cir. 2010).                 Of

particular relevance here, when the state court has reached only

one prong of the test for ineffective assistance of counsel, the

other prong is reviewed de novo.             See Rompilla v. Beard, 545 U.S.

374, 390 (2005); Dugas v. Coplan, 428 F.3d 317, 327 (1st Cir.

2005).    The Massachusetts Appeals Court, having concluded that

Rivera did not satisfy the performance prong, did not reach the

merits    of    the    prejudice     prong.3      Thus,   with   regard   to    the

performance prong, Rivera must show that the state court's decision

"was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility

for fairminded disagreement."             Harrington, 562 U.S. at 103.         With

respect to the prejudice prong, however, we review de novo whether


      3Its summary decision incorporates by reference pages of the
Commonwealth's brief that primarily focus on the deficiency of
Rivera's counsel's performance but cursorily argue in the
alternative that Rivera did not satisfy the prejudice prong.
However, because the court expressly stated that it was deciding
Rivera's ineffective assistance of counsel claim on the
performance prong, we do not treat its incorporation of the
Commonwealth's brief as reaching the merits of the prejudice prong.


                                         - 11 -
the effect of any error by Rivera's attorney is sufficient to

undermine our confidence in the jury's verdict.

             Where the district court in a federal habeas case does

not undertake independent factfinding, as was the case here, "we

are effectively in the same position as the district court vis-à-

vis the state court record," and thus we review the district

court's entire decision, including its application of the AEDPA

standard, de novo.      Pike v. Guarino, 492 F.3d 61, 68 (1st Cir.

2007).

                                 III.

             Rivera argues that Sistrand's failure to administer

Miranda warnings before questioning him was such a clear violation

of his Fifth Amendment rights that his attorney's failure to move

to suppress his statements on that ground "fell below an objective

standard of reasonableness."    Further, he argues that, because the

statements amounted to a confession that he was involved in the

altercation and were the only direct evidence of his intent in

stabbing Williams, the failure to move to suppress them was

prejudicial.    We consider each prong of the Strickland analysis in

turn.

A.      Performance

             Under the familiar rule of Miranda v. Arizona, a suspect

who is subject to "custodial interrogation" must first be informed

of his Fifth Amendment privilege against self-incrimination and


                                - 12 -
his right to an attorney to safeguard that privilege.                   384 U.S.

436, 444, 469 (1966); see Johnston v. Mitchell, 871 F.3d 52, 57

(1st    Cir.    2017).        The   remedy   for   a   violation   of   Miranda's

"prophylactic rules, in the ordinary case, is the exclusion of

evidence impermissibly gathered as a result of the violation."

Johnston, 871 F.3d at 58.             Here, it is undisputed that Sistrand

did not administer Miranda warnings before questioning Rivera when

he confronted him on the street. Thus, the issue of the deficiency

of counsel's performance turns in the first instance on whether

any "competent attorney" would nonetheless "think a motion to

suppress would have failed."              Premo v. Moore, 562 U.S. 115, 124

(2011).    Under AEDPA, Rivera has the burden of showing that the

Massachusetts Appeals Court's answer to this question "was so

lacking in justification that there was an error well understood

and    comprehended      in    existing    law   beyond   any   possibility   for

fairminded disagreement."           Harrington, 562 U.S. at 103.

       1. Custody

               Miranda's protections apply once "a person has been

taken into custody or otherwise deprived of his freedom in any

significant way."         Beckwith v. United States, 425 U.S. 341, 347

(1976).    "In determining whether an individual was in custody," we

assess "all of the circumstances surrounding the interrogation,"

with the "ultimate inquiry" being "whether there was a formal

arrest or restraint on freedom of movement of the degree associated


                                       - 13 -
with a formal arrest."       Stansbury v. California, 511 U.S. 318, 322

(1994) (per curiam) (internal quotation marks and alterations

omitted).

              Although the Commonwealth's brief to the Massachusetts

Appeals Court argued that Rivera was not in custody when he made

the statements to Sistrand, the court did not expressly address

that argument, and appellee has not developed any argument in

federal court that Rivera was not in custody at the time of his

statements to Sistrand or that counsel reasonably could have

believed on that basis that a suppression motion would fail.                  See

Rivera v. Thompson, No. 13-11789-IT, 2016 WL 4273180, at *8 (D.

Mass. Aug. 12, 2016) ("Neither Respondent nor the Massachusetts

Appeals Court dispute that Rivera was in custody while lying face

down on the street with an officer, with his gun drawn, standing

over him.").        Appellee has therefore waived those arguments. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding

that party's failure to develop argument in appellate brief results

in waiver).

              In any event, pre-trial events substantially undermine

the reasonableness of any belief by Rivera's counsel that a motion

would   not    be   successful     because    Rivera   was    not   in   custody.

Although    Rivera's     counsel    did   not   move   to    suppress    Rivera's

statements to Sistrand, she did move to suppress physical evidence

and several other statements made by Rivera at the police station.


                                     - 14 -
A suppression hearing was held during which Rivera's counsel

elicited detailed testimony from Sistrand regarding his encounter

with Rivera to support the argument that the physical evidence

should be suppressed.         At that hearing, the court expressly agreed

with the contention that Rivera was in custody at the time Sistrand

ordered him to the ground, even though he had not yet been

arrested, stating, "I accept that the defendant is in custody from

the minute he's placed at gunpoint on the ground."             That the court

was receptive to the argument that Rivera was in custody at the

time   he   made   the   statements    to   Sistrand   makes    it   even   more

incomprehensible that his attorney failed to move to suppress the

statements before trial, particularly given the interrogative

nature of the questions asked by Sistrand.

       2. Interrogation

            The Massachusetts Appeals Court held that the failure to

move to suppress the statements was excusable on the ground that

"the questions did not constitute interrogation for the purposes

of Miranda warnings," Rivera, 2012 WL 1623373, at *1, and thus

trial counsel could reasonably believe it would be futile to file

a motion to suppress.         That conclusion of the Court of Appeals is

clearly     contrary     to     the    Supreme   Court's       definition     of

interrogation for Miranda purposes.

            In Rhode Island v. Innis, 446 U.S. 291 (1980), the

Supreme Court held that the term interrogation in Miranda refers


                                      - 15 -
"not only to express questioning, but also to any words or actions

on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect."           Id.

at 301 (footnote omitted).     Appellee reads the second part of this

definition as a restriction on the first, arguing that express

questioning     is   interrogation   "only   when   police    conduct    is

'reasonably likely to elicit an incriminating response from the

suspect.'"     To the contrary, the definition of interrogation in

Innis encompasses any express question asked of a suspect in

custody, subject to a few narrow exceptions.        See United States v.

Downing, 665 F.2d 404, 407 (1st Cir. 1981).

             Here, although they were few in number, Sistrand asked

Rivera express questions, including "what are you doing?" and

"why?".   We therefore do not need to determine whether Sistrand's

words or actions were the "functional equivalent" of express

questioning by evaluating whether his queries were "reasonably

likely to elicit an incriminating response."         Innis, 446 U.S. at

301; see United States v. Montgomery, 714 F.2d 201, 202 (1st Cir.

1983) ("Since the questioning here was express, we have no occasion

to go farther. This was custodial interrogation.").          In any event,

the questions "what are you doing?" and "why?" when asked of a

suspect who is seen fleeing from the direction of a stabbing and

is bleeding from a cut on his hand are clearly reasonably likely


                                 - 16 -
to elicit an incriminating response.           Indeed, Sistrand's actions

-- drawing his gun and ordering Rivera to stop and lay on the

ground -- indicate that he suspected Rivera was involved in the

stabbing that he was investigating.4

            Appellee     suggests     that   the     fact   that    Sistrand's

questions were "introductory" or "preliminary" precludes them from

being interrogation.       However, there is no such exception to the

Supreme Court's definition of interrogation, nor does appellee

point to any cases recognizing one.            Whether Sistrand questioned

Rivera soon after he encountered him on the street or hours later

at   the    police   station,      his   express     questions     were     still

interrogation under Innis.          Therefore, the Massachusetts Appeals

Court's     conclusion     that      Sistrand's      questions      were      not

interrogation    was     clearly    contrary    to    the   Supreme       Court's

definition of interrogation.

     3. Routine Booking Exception

            Strickland obliges us "to affirmatively entertain the

range of possible reasons . . . counsel may have had" for not

moving to suppress Rivera's statements to Sistrand.                 Cullen v.

Pinholster, 563 U.S. 170, 196 (2011) (internal quotation marks

omitted).     The only such reason proffered by appellee is that


     4 Sistrand stated at the hearing on Rivera's motion to
suppress that his decision to stop Rivera was based on "the nature
of the incident, the time of the morning, and what was put out
over the radio," which was that a stabbing had taken place nearby.


                                    - 17 -
counsel could reasonably have believed that Sistrand's questions

fell under the "routine booking" exception to the Miranda rule.

That assertion is implausible.

           Appellee has failed to show as a threshold matter that

the aptly named routine booking exception would apply here, where

the questions were asked for investigative reasons, not routine

administrative purposes, before Rivera was arrested and booked.

The   routine   booking    exception   applies   to   "biographical     data

necessary to complete booking or pretrial services."          Pennsylvania

v. Muniz, 496 U.S. 582, 601 (1990) (plurality opinion) (internal

quotation marks omitted).         In Muniz, the plurality applied the

exception to questions that were "requested for record-keeping

purposes   only"   and    were   "reasonably   related   to   the   police's

administrative concerns."        Id. at 601-02 (internal quotation marks

omitted); see also United States v. Sanchez, 817 F.3d 38, 46 (1st

Cir. 2016) (holding that the exception applied where the officer

"asked only routine questions to help with the booking process" at

the police station); United States v. Reyes, 225 F.3d 71, 77 (1st

Cir. 2000) (holding that "requesting [the defendant's] name, date

of birth, and social security number" fell within the routine

booking exception).       Indeed, appellee primarily relies on United

States v. Doe, 878 F.2d 1546, 1551 (1st Cir. 1989), where we held

that the exception did not apply to biographical questions asked

of an arrestee on a boat on the high seas, stating that "the


                                   - 18 -
administrative need for initial background questioning seems less

great here than typically present at a police station."

           Moreover, although Sistrand did at one point ask Rivera

his name, his other questions went well beyond simple identifying

data to information that could be used as evidence of Rivera's

involvement in a crime. Unlike biographical questions asked during

booking,   which   "do   not,   by   their   very   nature,   involve   the

psychological intimidation that Miranda is designed to prevent,"

Doe, 878 F.2d at 1551 (quoting United States v. Booth, 669 F.2d

1231, 1237 (9th Cir. 1981)), a police officer asking, with his gun

drawn, "what are you doing?" and "why?" to a suspect laying prone

in the street is precisely the type of coercive questioning that

implicates a suspect's Fifth Amendment rights.5        Rivera's attorney

therefore had no reason to believe that a motion to suppress the

statements would be futile.6


     5 Additionally, there is "an exception to the exception" for
"[c]ases in which law enforcement officers have reason to know
that routine booking questions may indeed produce inculpatory
responses." United States v. Scott, 270 F.3d 30, 43 n.8 (1st Cir.
2001). The questions asked of Rivera here were clearly not routine
booking questions, but this exception makes counsel's failure to
move to suppress Rivera's answers even more inexplicable because
Sistrand had reason to know that questions asked under these
circumstances -- Rivera was seen running from the direction of the
address where the stabbing occurred, failed to stop when commanded
to do so, and was bleeding from his hand -- were likely to produce
an inculpatory response.
     6 In addition to the routine booking exception, the Supreme
Court has recognized a public safety exception to the Miranda
requirement, which allows police officers to ask "questions
necessary to secure their own safety or the safety of the public."


                                 - 19 -
     4. Application of the AEDPA Standard

           The district court held that the Massachusetts Appeals

Court's ruling concerning Rivera's counsel's failure to move for

suppression, even if erroneous, was not so unreasonable that it

warranted relief under AEDPA.        That holding takes the deferential

standards of Strickland and AEDPA too far.               Although it is true

that assessing custodial interrogation is a fact-specific inquiry

often susceptible to reasonable differences of opinion, this is

not a close case.    Posing the relevant AEDPA question, "whether it

is possible fairminded jurists could disagree" that the state

court's decision was inconsistent with a prior decision of the

Supreme Court, Harrington, 562 U.S. at 102, we conclude that no

fair-minded jurist could disagree that the Massachusetts Appeals

Court's   holding   was   contrary      to   governing    Supreme   Court   law

defining interrogation.      Based on the plain statement of law in

Innis, there is no reasonable argument that the express questions

asked of Rivera with the purpose of ascertaining whether he was

involved in the stabbing to which Sistrand was responding were not

in fact interrogation.      Nor is there any colorable argument that

the routine booking exception would apply to questions that are

neither   routine   nor   asked   for    administrative     purposes   during


New York v. Quarles, 467 U.S. 649, 659 (1984). That exception is
not at issue here, where Sistrand's questions were directed at
investigating whether Rivera was involved in a crime, not
protecting his safety or the safety of others.


                                  - 20 -
arrest   or    booking.       Thus,   the   Massachusetts        Appeals   Court's

conclusion that counsel's performance was adequate because she

could have reasonably believed that Miranda warnings were not

required      under    the     circumstances        at   issue     "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).

B.    Prejudice

              Rivera contends that the introduction of his responses

to Sistrand's questions was prejudicial for two reasons: (1) the

statements amounted to a confession that he was involved in the

fight with Williams, and (2) the statements were the only direct

evidence of his intent.            With regard to his first argument,

although Sistrand's testimony that Rivera stated that he "had a

beef" with someone could be construed by the jury as Rivera

confessing his involvement in the fight with Williams, that effect

on the jury would not be prejudicial.                Rivera's counsel did not

dispute at trial that he was involved in a fight with Williams,

and   testimony       of     eyewitnesses      at   trial   established        that

involvement.      Rivera's argument at trial instead focused only on

whether the government had proved beyond a reasonable doubt that

he committed the stabbing with the requisite intent to kill or

injure Williams.       Thus, a confession that he was involved in the




                                      - 21 -
fight in some way, without more, does not "undermine confidence in

the outcome" of the trial.

           Nonetheless,   we   are    persuaded      by   Rivera's    second

argument that his statement that he "had a beef" because he had

been "disrespected" provided crucial evidence of intent to murder

Williams and thus was sufficiently prejudicial that there is a

reasonable probability that trial counsel's error in failing to

move to suppress the statements affected the jury's verdict.

           Rivera's   intent   was   critical   in    this   case    for   two

reasons.   First, to convict him of armed assault with intent to

murder, rather than the lesser included offense of armed assault

with intent to kill, the jury had to find beyond a reasonable doubt

that Rivera acted with malice.        Thus, a partial defense to the

armed assault with intent to murder charge was the presence of

mitigating factors showing that Rivera did not act with malice.

Second, as a complete defense to counts I and II, the jury was

instructed to acquit Rivera of armed assault with intent to murder

and assault with a dangerous weapon if it found that there was

evidence that he acted in self-defense and the government failed

to prove beyond a reasonable doubt that he did not do so.            Rivera's

counsel's failure to suppress his statements had a prejudicial

effect on both of these defenses.




                                 - 22 -
      1. Partial Defense of Absence of Malice

           The elements of armed assault with intent to murder are

"assault and a specific intent to kill that equates with malice."

Commonwealth v. Johnston, 845 N.E.2d 350, 354 (Mass. 2006).            The

Massachusetts Supreme Judicial Court has explained that "[m]alice

necessarily exists when specific intent to kill is proved and there

is no evidence of justification, excuse, or mitigation."               Id.

Therefore, where there is evidence of mitigating factors, such as

"heat of passion induced by reasonable provocation, sudden combat,

or excessive force in self-defense," the Commonwealth must prove

the absence of mitigation beyond a reasonable doubt. Id.            If the

Commonwealth proves the other elements of armed assault with intent

to murder but fails to prove the absence of mitigating factors, it

"reduces the crime from assault with intent to murder to assault

with intent to kill, a lesser included offense."         Commonwealth v.

Vick, 910 N.E.2d 339, 350 (Mass. 2009).           The elements of armed

assault with intent to kill are "assault, specific intent to kill,

and [a] mitigating factor."     Id. (quoting Commonwealth v. Nardone,

546   N.E.2d   359,   365   (Mass.    1989))   (alteration   in   original)

(emphasis omitted).

           Having concluded that there was evidence of mitigation,

the trial court instructed the jurors that, even if they decided

that Rivera stabbed Williams, they had to find the absence of

mitigating circumstances beyond a reasonable doubt to find him


                                     - 23 -
guilty of armed assault with intent to murder.                      Otherwise, the

court explained, the jury should convict Rivera of the lesser

included offense of armed assault with intent to kill.                      On the

second day of deliberations, the jury sent a note to the court

indicating that it had reached a verdict on two of the counts in

the indictment but was having difficulty deciding on a verdict for

armed assault with intent to murder.             Although the jury ultimately

convicted Rivera of armed assault with intent to murder after it

was   instructed       to    continue    deliberating,        the    presence     of

mitigating factors was obviously a central issue in the jury

deliberations because mitigation is the only difference between

armed assault with intent to murder and the lesser included offense

of armed assault with intent to kill.

            Rivera's        primary    defense     at    trial    was    that   the

Commonwealth     had    failed    to    produce    any     eyewitness    testimony

regarding how the fight had started or what occurred during the

fight,    and   that   it    therefore    had     failed    to   prove   beyond   a

reasonable doubt the elements of the charged crimes, including

specific intent and the absence of mitigating factors.                     Without

Rivera's statements to Sistrand, the only evidentiary basis for

the Commonwealth's assertion that Rivera initiated the fight with

the intent to stab and kill Williams would have been Gonzalez's

ambiguous testimony that he thought something had "triggered"

Rivera.    However, the jury may have disregarded or given little


                                       - 24 -
weight to Gonzalez's suggestion that Rivera started the fight

because Gonzalez was out of the room and did not actually hear

what was said between Rivera and Williams.        Moreover, the only

eyewitness account of the fight itself was Gonzalez's testimony

that the larger Williams had the smaller Rivera pinned to the

ground and was punching him.    Such testimony would permit the jury

to conclude that Williams was the aggressor and Rivera merely acted

"in the heat of passion" due to Williams' provocation.                See

Commonwealth v. Acevedo, 845 N.E.2d 274, 283, 284 (Mass. 2006)

(describing "reasonable provocation" as when "a reasonable person

in the defendant's position would have felt an 'immediate and

intense' threat, and lashed out in fear as a result"); id. (stating

that "[a]t times, even a single blow from the victim can constitute

reasonable    provocation"   (quoting   Commonwealth   v.   Amaral,   450

N.E.2d 142, 145 (Mass. 1983))).

             Rivera's statements to Sistrand significantly change the

mitigating factors analysis.     Even with Rivera's statements, the

jury had trouble deciding whether mitigating factors were present.

Without them, it is unlikely that the jury would have found beyond

a reasonable doubt that Rivera had not been reacting to Williams'

provocation. Rivera's admission that he "had a beef with a nigger"

because he had been "disrespected" provided crucial evidence to

corroborate Gonzalez's statement that something "triggered" Rivera

and reinforced the inference that Rivera initiated the fight.         In


                                - 25 -
turn, if the jury concluded that Rivera started the fight, Rivera's

statements strengthened the Commonwealth's argument that he did so

with malice and the specific intent to kill Williams, rather than

having been provoked by something Williams did.7                      Indeed, the

Commonwealth      seized   on     Rivera's    statements       in   its      closing

argument,   asserting      that    Rivera    started    the    fight      with   the

intention    of    stabbing       Williams    as     retribution       for     being

"disrespected,"      and   drawing     a     connection       between     Rivera's

statement that his "beef" was about being "disrespected" and

Gonzalez's testimony that something "triggered" Rivera before he

went outside.8

            It is thus reasonably probable that, in the absence of

Rivera's    statements,     the     jury     would    have    found     that     the

Commonwealth had failed to prove the absence of mitigating factors,




     7 Rivera's statement that he "had a beef with a nigger" was
especially prejudicial because Rivera used a racial slur to refer
to Williams, who, according to witnesses, was the only black person
present at the party. Brown testified that Rivera used the same
slur toward him at the police station after being arrested. The
testimony that Rivera twice used racial slurs could support a
finding by the jury that the stabbing was motivated by racial
animus. If the jury reached that conclusion, it would have another
reason to think that the stabbing was premeditated rather than
committed in the heat of the fight with Williams.
     8  Specifically,   the   Commonwealth  repeated   Sistrand's
testimony that Rivera had said someone had disrespected him, and
then said: "Remember Josue Gonzalez? Something triggered Eber
Rivera. Something triggered that guy. Someone disrespected him."


                                     - 26 -
and Rivera would not have been convicted of armed assault with

intent to murder.

     2. Self-Defense

            In    addition     to    instructing   the   jury   on    the     lesser

included offense of armed assault with intent to kill, the court

gave the jury a self-defense instruction for both armed assault

with intent to murder (count I) and assault and battery with a

dangerous weapon (count II).             Self-defense would be a complete

defense to both charges.            The court concluded that a self-defense

instruction was appropriate based on its assessment that "the

defendant   was    on    the   bottom    and    [Williams]   was     on    top"   and

"[Williams] was getting the better of [Rivera]," and thus "the

jury could find on that evidence that Mr. Rivera used the knife in

self-defense."       The court told the jurors that they must find

Rivera not guilty on each of the two counts if there was some

evidence that Rivera acted in self-defense and the Commonwealth

failed to prove beyond a reasonable doubt that Rivera did not act

in self-defense.        The court defined self-defense as when "a person

in defendant's circumstances would reasonably believe that he was

about to be attacked and that he was in immediate danger of being

killed or seriously injured, and there was no other way to avoid

the attack."

            Without      Rivera's     statements    to   Sistrand,        Gonzalez's

testimony that Williams was dominating the fight, coupled with the


                                       - 27 -
inconclusive testimony regarding who started the fight, would make

it difficult for the jury to conclude that the Commonwealth had

proved beyond a reasonable doubt that Rivera did not act in self-

defense.   That Williams followed Rivera outside and then was seen

beating him while he was on the ground would support a finding by

the jury that Williams started the fight and was close to seriously

injuring Rivera, who was unable to extract himself from the fight

because he was pinned to the ground.          The jury therefore could

have concluded that Rivera had reason to believe that the only way

to stop the beating was to stab Williams, thus leading to a finding

that the Commonwealth had failed to prove beyond a reasonable doubt

that Rivera did not act in self-defense.

           On the other hand, with Rivera's statements before the

jury, there was a reason for Rivera to initiate the fight -- he

was "disrespected" -- and to have formed the intent to stab

Williams before Williams had him on the ground.          Because the jury

could infer from Rivera's statements to Sistrand that he was intent

on   hurting   Williams   from   the   beginning   of   the   fight,   those

statements permitted it to find that the Commonwealth had proved

beyond a reasonable doubt that Rivera did not act in self-defense.

Therefore, trial counsel's error in not moving to suppress Rivera's

statements undermines our confidence in the jury's conclusion that

Rivera was guilty of armed assault with intent to murder and

assault and battery with a dangerous weapon.


                                  - 28 -
                                  IV.

            For the reasons set forth, we conclude that Rivera's

counsel's deficient performance was sufficiently prejudicial to

amount to a violation of his Sixth Amendment right to counsel, and

that the Massachusetts Appeals Court's decision to the contrary

was   an   unreasonable   application   of   Supreme   Court   precedent.

Accordingly, we reverse the judgment of the district court and

remand with instructions to issue the writ of habeas corpus.

            So ordered.




                                - 29 -
