          United States Court of Appeals
                        For the First Circuit


No. 16-1479

                             ANDRE WALKER,

                        Petitioner, Appellant,

                                  v.

              SEAN MEDEIROS, Superintendent, MCI-Norfolk,

                         Respondent, Appellee.


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

       [Hon. George A. O'Toole, Jr., U.S. District Judge]


                                Before

                    Torruella, Kayatta, and Barron,
                            Circuit Judges.


     Catherine J. Hinton, with whom Rankin & Sultan was on brief,
for appellant.
     Matthew P. Landry, Assistant Attorney General, Criminal
Bureau, with whom Maura Healey, Attorney General, was on brief,
for appellee.


                           December 21, 2018
             BARRON, Circuit Judge.         Andre Walker appeals from the

dismissal of the federal petition for writ of habeas corpus that

he brings pursuant to 28 U.S.C. § 2254.                In his petition, he

challenges his convictions under Massachusetts law for murder and

other   offenses    on    the   ground    that    he   received   ineffective

assistance of counsel in violation of the Sixth Amendment to the

United States Constitution.1       We affirm.

                                     I.

             Walker's convictions arose out of the following events,

which are not in dispute.       On September 16, 2000, Francis Stephens

and José Astacio were shot at the corner of Glenway and Harlem

Streets in the Dorchester neighborhood of Boston, Massachusetts.

Astacio received one gunshot wound to the chest but survived, while

Stephens suffered multiple gunshot wounds and died.

             In February of 2004, in connection with these shootings,

Walker and Willie Johnson were indicted in Suffolk County Superior

Court   in   Boston,     Massachusetts    for    murder   and   other   related


1 The Sixth Amendment, which was incorporated against the states
by the Due Process Clause of the Fourteenth Amendment to the United
States Constitution, see Gideon v. Wainwright, 372 U.S. 335, 342-
43 (1963), provides: "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense." U.S. Const.
amend. XI (emphasis added).


                                    - 2 -
Massachusetts law crimes.     The joint trial began on November 9,

2005.

             During the trial, the prosecution introduced testimony

from Boston Police Department Detective John Martel and eye-

witness   Sylvester   Harrison.      Detective     Martel   described   an

interview with Harrison, who picked Walker's picture out of an

array of photographs that Martel had presented to him, identifying

Walker as the man whom Harrison had observed at the scene of the

shootings.    Harrison, for his part, corroborated some of Martel's

testimony but testified that he had been pressured by the police

into making a selection from the array.       In addition to Martel's

and Harrison's testimony, the prosecution also relied at trial on

testimony from three other witnesses -- Sharod Clark, Terence

Dotson, and Michael Boyd -- each of whom testified to having known

Walker and to having, at one point, resided with Walker in the

neighborhood surrounding the Franklin Hill housing projects in

Boston.      Both Clark and Boyd testified that Walker had been

involved in the shootings and that he had described to them his

involvement in those shootings.       All three acknowledged during

their testimony that they expected that their cooperation with the

Commonwealth's    investigation   would   result    in   their   receiving

lenient treatment for unrelated charges that were then pending

against each of them.




                                  - 3 -
             After the jury began deliberations, it sent a message to

the trial judge that noted that the jurors were "deadlocked."               The

jury explained in that message that it feared that it would be

unable to reach a unanimous decision.          In response to the message,

the trial judge instructed the jury to continue deliberating, and

the jury responded by asking the trial judge to permit it to review

the notes from Detective Martel's interview with Harrison.                  The

trial judge replied that those notes were not in evidence but that

the jurors should rely on their "collective memory" of both

Detective Martel's testimony concerning Harrison's identification

of Walker and the testimony that Harrison himself provided at trial

about the identification.

             On December 9, 2005, after eight days of deliberations,

the   jury    returned    verdicts   that    found   Walker   guilty   of   the

following Massachusetts law offenses: first degree murder, armed

assault with intent to murder, and carrying an unlicensed firearm.

The jury acquitted Johnson of all charges.

             The trial judge sentenced Walker to life imprisonment

for murder, three to five years of imprisonment for possession of

a firearm, and six to eight years of imprisonment for armed assault

with intent to murder.        Walker both appealed his convictions and

filed a motion for post-conviction relief, claiming, among other

things,      that   his   defense    counsel   had    provided   ineffective

assistance of counsel in violation of the Sixth Amendment to the


                                     - 4 -
federal Constitution by failing to move to suppress testimony

concerning Harrison's out-of-court identification.

            The same judge who conducted Walker's trial presided

over an evidentiary hearing on his post-trial motion.                      In a 137-

page order, the judge denied the motion.                   Commonwealth v. Walker,

No. 2004-10099, 2009 WL 335930, at *1 (Mass. Supp. Feb. 11, 2009).

Walker then appealed that decision.                That appeal was subsequently

consolidated    with    his      direct    appeal    before     the    Massachusetts

Supreme   Judicial      Court     ("SJC").         Among    other    things,    Walker

challenged his convictions on the ground that he had received

ineffective     assistance         of     counsel     in     violation     of      both

Massachusetts     law      and     the     United     States        Constitution     in

consequence of his counsel's failure to move to suppress the

evidence of Harrison's out-of-court identification of Walker.

Commonwealth v. Walker, 953 N.E.2d 195, 199 (Mass. 2011).

            On September 21, 2011, the SJC unanimously affirmed

Walker's convictions and affirmed the order denying his motion for

post-conviction relief.           Id. at 199-200.           In doing so, the SJC

rejected,   among      other     things,     his    ineffective       assistance     of

counsel claims.      Id.

            On December 17, 2012, Walker filed this federal habeas

petition in the United States District Court for the District of

Massachusetts, pursuant to 28 U.S.C. § 2254.                  In that petition, he

brought a number of claims for relief, including a claim that he


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had received ineffective assistance of counsel under the federal

Constitution.     The District Court denied relief on all of Walker's

claims and also denied Walker's request for a certificate of

appealability ("COA").

             On October 10, 2017, this Court granted Walker's COA,

though   solely    as   to   the    question      of   whether    counsel     was

constitutionally ineffective, under the federal Constitution, for

failing to file a pre-trial motion to suppress the evidence of the

out-of-court identification.         We now consider Walker's appeal of

the District Court's ruling denying that claim for relief.

                                         II.

             As Walker's case was adjudicated on the merits in state

court,   the    Antiterrorism      and    Effective    Death     Penalty    Act's

("AEDPA") highly deferential standard of review applies. 28 U.S.C.

§ 2254(d).     Under AEDPA, Walker is entitled to habeas relief based

on his federal constitutional claim of ineffective assistance of

counsel only if he can show that the SJC's ruling rejecting that

claim "was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme

Court of the United States" or "was based on an unreasonable

determination of the facts."         Id.       Here, the District Court held

that the SJC's ruling rejecting Walker's federal constitutional

ineffective assistance of counsel claim was neither contrary to

nor involved an unreasonable application of United States Supreme


                                     - 6 -
Court precedent.        Walker v. Gelb, No. 12-12340-GAO, 2016 WL

1239919, at *2 (D. Mass. Mar. 28, 2016).             The District Court also

ruled that the SJC's rejection of that claim was not based on an

unreasonable factual determination.           Id.    Reviewing these rulings

by the District Court de novo, see Teti v. Bender, 507 F.3d 50, 56

(1st Cir. 2007), we agree.

                                       A.

             To demonstrate that he received ineffective assistance

of counsel in violation of the Sixth Amendment to the United States

Constitution, Walker must show both that his defense counsel's

performance     was    constitutionally        deficient         and       that     this

deficiency prejudiced his case.             Strickland v. Washington, 466

U.S. 668, 687 (1984).      To show that his counsel's performance was

constitutionally       deficient,      Walker       must        demonstrate         that

"counsel's     performance      was    objectively         unreasonable           'under

prevailing professional norms.'"            United States v. Mercedes-De La

Cruz, 787 F.3d 61, 67 (1st Cir. 2015) (quoting Strickland, 466

U.S. at 688).     This standard is "highly deferential" and thus we

must   "indulge    a   strong    presumption        that    .    .     .   under     the

circumstances, the challenged action 'might be considered sound

trial strategy.'"      Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

             In addition, under Strickland, Walker must show that the

deficient performance was prejudicial. Id. at 687. Because Walker


                                      - 7 -
bases his ineffective assistance of counsel claim on his defense

counsel's failure to file a motion to suppress the evidence

concerning    Harrison's    out-of-court    identification     of   Walker,

Walker must, in order to show prejudice, at a minimum show that

the motion to suppress would have been granted if it had been made.

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

Mercedes-De La Cruz, 787 F.3d at 67).            Additionally, Walker must

show that, if the motion to suppress had been successful, it is

reasonably probable that the proceedings would have ended with a

different result.     Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir.

2007) (citing Wiggins v. Smith, 539 U.S. 510, 537 (2003)).

             Walker's contention that his counsel's performance was

constitutionally deficient is premised on the fact that the United

States   Supreme    Court   has   held    that    a   defendant's   federal

constitutional right to due process bars the government's use at

trial of evidence of a witness's out-of-court identification of

the defendant if the identification procedure employed by the

government is "so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification."

Simmons v. United States, 390 U.S. 377, 384 (1968).          Walker argued

to the SJC that the circumstances of the photo array at issue here

were constitutionally problematic in just that manner and, thus,

that his counsel acted deficiently by not moving to suppress the

evidence concerning Harrison's identification, given that Walker


                                  - 8 -
contends that his defense counsel had no strategic reason for

failing to do so.        Walker, 953 N.E.2d at 204.

                                       B.

            The District Court rejected Walker's federal habeas

challenge to the SJC's ruling on his ineffective assistance of

counsel claim.      After carefully reviewing the SJC's decision, so

do we.

            The   SJC    rejected    the    first   ground    on   which   Walker

premised    his     ineffective      assistance     of    counsel      claim    by

determining that the judge who rejected his post-trial motion for

relief did not clearly err in finding that, contrary to Walker's

contention, Harrison had not been pressured by law enforcement to

make a selection from the array of photographs.                 See id. at 205

(adopting the motion judge's findings as they "were not clearly

erroneous").      Like the District Court, we agree that the SJC's

ruling on this point must be sustained under AEDPA.

            On appeal to us, Walker points to no clear and convincing

evidence in the record that law enforcement did pressure Harrison

into making a selection from the array of photographs.                   Instead,

Walker     relies    primarily       on     Harrison's       account     of     the

identification      as    evidence    that     pressure      occurred.         But,

Harrison's account of the identification is at odds with Detective

Martel's testimony that he did not "press" Harrison into making a




                                     - 9 -
selection    from    the   array   and   that   Harrison   chose   without

protestation.

            Walker does seize on language from Martel's testimony in

which he quoted Harrison as saying "if [I] had to pick" before

Harrison made his selection from the array.          According to Walker,

this part of Harrison's testimony demonstrates that Harrison must

have felt pressured into making a selection.         But, this statement

does not clearly or convincingly do so, as it may readily be

understood to show merely that Harrison was making the point that

he was less than certain of his choice, even though it was freely

made.   Thus, we see no basis for overturning the District Court on

this point, as AEDPA instructs that we must leave state-court

factual findings undisturbed unless the petitioner for habeas

relief can show through "clear and convincing evidence" that the

state court's finding was unreasonable.         28 U.S.C. § 2254(e)(1).

            The SJC also rejected the second ground on which Walker

premised    his     ineffective    assistance   of   counsel   claim,   by

determining that, contrary to Walker's contention, the federal

Constitution's Due Process Clause did not require the government

to employ the safeguards in conducting the photo array that Walker

contended were required but that were not used.         Specifically, the

SJC rejected Walker's arguments that the identification procedure

was constitutionally problematic because law enforcement did not

inform Harrison that the suspect's picture might not be included


                                   - 10 -
in the array, did not employ a "double-blind" identification

process, did not record Harrison's selection from the array, and

did not use a sequential-photographic array.        Walker, 953 N.E.2d

at 206-07, 208 n.17.

          Although     Walker   challenged   the   lack   of    procedural

safeguards used in the identification in seeking habeas relief

from the District Court, it appears that the District Court did

not address the issue.    Nevertheless, we may affirm on any ground

manifest in the record.    See Euromodas, Inc. v. Zanella, Ltd., 368

F.3d 11, 16 (1st Cir. 2004).     And, we affirm here because, in now

challenging the SJC's holding on this score, Walker fails to

identify any United States Supreme Court precedent that clearly

establishes that, under the federal Constitution, the procedures

he identified as being required must be employed.              Instead, he

points only to the fact that these procedures were required by the

SJC in Commonwealth v. Silva-Santiago, 906 N.E.2d 299 (Mass. 2009),

and that they were recommended in a 1999 report on eye-witness

evidence that the United States Department of Justice issued. But,

Silva-Santiago did not purport to hold that these procedures were

required as a matter of federal constitutional law.               And the

Department of Justice report did not purport to do so either.

Thus, Walker has failed to demonstrate -- as AEDPA requires him to

demonstrate in order to obtain habeas relief -- that the SJC's




                                 - 11 -
ruling was either contrary to or an unreasonable application of

clearly established United States Supreme Court precedent.

             Finally, the SJC rejected the only other premise for

Walker's ineffective assistance of counsel claim.                     This premise

was that the federal constitutional guarantee of due process

prohibited    the   use    at   trial    of     the    evidence      of   Harrison's

identification of Walker because that identification was based on

an   "all-suspect        photographic        array."       In     rejecting      this

contention, however, the SJC did not determine that the federal

Constitution permitted the use of all-suspect arrays.                      In fact,

the SJC expressed concerns about the practice by noting that,

although it was "not convinced that the rate of false positive

identification      is    greater     with    all-suspect       arrays,"    it   did

recognize "that the danger that a false positive identification

will result in a wrongful prosecution is greater with" this kind

of procedure.    Walker, 953 N.E.2d at 208.             The SJC even went on to

instruct that police should not use photographic arrays containing

"fewer than five fillers for every suspect photograph," id.,

without   indicating        whether      the     use      of    an    out-of-court

identification at trial based on an array of this type would

comport with federal constitutional requirements.

             Nevertheless,      the    SJC    ultimately       rejected    Walker's

ineffective    assistance       of    counsel    claim,    notwithstanding       the

concerns that the SJC had raised about the use of the all-suspect


                                       - 12 -
array,   after   applying   the   "miscarriage   of   justice"   standard

described in Commonwealth v. Gonzalez, 824 N.E.2d 843, 852 (Mass.

2005).   The SJC did so because:

     [w]e do not conclude that a substantial likelihood of a
     miscarriage of justice arose from the use of an all-
     suspect array in this case. . . . [T]he heart of the
     Commonwealth's case against Walker was the testimony of
     Clark, Dotson, and Boyd, not Harrison's equivocal and
     retracted prior identification.

Walker, 953 N.E.2d at 208.2

           We share the SJC's discomfort with the use of all-suspect

arrays, which lack "filler" photographs. The use of only suspects'

photos in arrays necessarily increases the difficulty in assessing

whether any particular selection from the array is a false or

mistaken one, as would be readily apparent if "fillers" were

included and one of the "fillers" were selected. Moreover, because

the presentation of the array itself may suggest that those

depicted in it are more likely to have been involved in the offense

than those not depicted, the fact that there are no "fillers" to

serve as checks on such false or mistaken selections is all the

more troubling.    See Richard Gonzales et al., Response Biases in



2 In determining that there was not a "substantial likelihood of a
miscarriage of justice," the SJC additionally noted that "[t]he
photograph that Harrison identified as the man in the Toyota
automobile was not the codefendant; but the codefendant, and not
the man identified, was the person charged by the Commonwealth,
which suggests that the police did not lock onto a suspect based
on Harrison's identification." Walker, 953 N.E.2d at 208.


                                  - 13 -
Lineups and Showups, 64 J. Personality & Soc. Psychol. 525, 527

(1993) ("[A] lineup [with fillers] is in principle more fair than

a [line up of only suspects] because it distributes the probability

of identification of an innocent suspect across the lineup foils,

reducing the risk of an identification error.").                  But, the SJC

rested   its   rejection   of   this    aspect    of   Walker's    ineffective

assistance of counsel claim on its finding that his counsel's

failure to move to suppress the identification evidence did not

result in a "miscarriage of justice" under Gonzalez in light of

the other evidence of his guilt put forth at trial.                Thus, it is

that ruling by the SJC that must be our focus for purposes of

assessing the merits of his federal habeas petition.

                                       C.

           Turning to that ruling, we note that the "miscarriage of

justice" standard that the SJC applied is a Massachusetts law

standard for evaluating a claim of ineffective assistance of

counsel.   But that test is more defendant-friendly than the test

that the United States Supreme Court set forth in Strickland for

evaluating a claim of ineffective assistance of counsel under the

federal Constitution.      See Knight v. Spencer, 447 F.3d 6, 10, 15

(1st Cir. 2006).    We have therefore held that this "miscarriage of

justice"   standard     "subsume[s]"        the    federal    standard     for

determining when a Strickland violation has occurred, see Sleeper,

510 F.3d at 38, which means that it subsumes both the Strickland


                                  - 14 -
test for determining constitutionally deficient performance by

defense counsel and the Strickland test for determining whether

such deficient performance was prejudicial.

           Thus, under AEDPA, so long as the SJC's ruling that there

was no "miscarriage of justice" due to the other evidence of

Walker's guilt that the jury had before it is not "so lacking in

justification" as to be "beyond any possibility for fairminded

disagreement," Harrington v. Richter, 562 U.S. 86, 103 (2011), we

must defer to it. And, although the District Court does not appear

to have addressed Walker's challenge to this aspect of the SJC's

ruling, we conclude that, based on the record, Walker's challenge

to it must fail.    Zanella, 368 F.3d at 16.

           The SJC's ruling on that score, after all, necessarily

amounts to a determination that there was no prejudice under

Strickland because it is not reasonably probable that the outcome

of   Walker's   trial   would   have   differed    if   the   identification

evidence from Harrison had been suppressed.             And, so understood,

we see no basis for concluding that the SJC's determination in

that regard defies reason, which, under AEDPA, is the conclusion

that we would have to reach to rule for Walker.            See Richter, 562

U.S. at 102-03.

           Walker does point out in his briefing to us that the

record shows that the jury requested the notes from Harrison's

identification during its deliberations.          But, it is impossible to


                                  - 15 -
know from the record why the jury made that inquiry or how it then

affected the verdict.        Thus, for purposes of habeas review, that

query alone fails to render unreasonable the SJC's judgment that,

considered     in    the   context       of    the    case    as        a    whole,     the

identification's suppression would not (drawing from the federal

prejudice    standard      that    the    SJC's      "miscarriage           of   justice"

standard subsumes) have made it reasonably probable that the

proceeding's outcome would have differed.                   See Sleeper, 510 F.3d

at 39 (citing Smith, 539 U.S. at 537).

             Nor does the fact that, as Walker also points out, the

jury informed the trial judge at one point that it feared that it

might be deadlocked.        Because the trial was a joint one, it is

impossible to know from that representation by the jury whether

its   concerns      pertained     to   Walker's      case    or   Johnson's,          which

resulted in an acquittal.

             We thus must, like the SJC, consider the rest of the

evidence to assess the possible impact of Walker's counsel's

failure to have moved to suppress the identification evidence (even

assuming that we could find under the AEDPA standard that such a

failure     constituted     deficient         performance         for       purposes     of

Strickland).        Having undertaken that consideration, we cannot

conclude that the SJC defied reason in ruling that there was no

miscarriage of justice -- and thus, necessarily, that no Strickland

violation occurred -- because "the heart of the Commonwealth's


                                       - 16 -
case against Walker was the testimony of Clark, Dotson, and Boyd,

not Harrison's equivocal and retracted prior identification."

Walker, 953 N.E.2d at 208.

            As an initial matter, the record fully supports the SJC's

characterization     of   Harrison's     alleged   identification   as

"equivocal and retracted[.]" Id. Indeed, Harrison first testified

that he "didn't see who shot the person," before amending his story

shortly thereafter by conceding that he saw "a quick image" of the

shooter.   Id. at 203.

            The record also supports the SJC's conclusion that the

government's case against Walker did not hinge solely on Harrison's

identification.    For example, the government produced testimony

from local police indicating that Walker was affiliated with a

gang, the Franklin Hill Giants, as well as testimony that Walker

had expressed a desire for retribution after members of a rival

gang shot Richard Green, Franklin Hill's "head man."      Id. at 200.

Additionally, one of the state's three witnesses, Boyd, testified

to knowing Walker personally and in detailed fashion about his

conversation with Walker regarding Walker's involvement in the

murder.    Specifically, Boyd testified that Walker told him how he

acquired the getaway vehicle, how he acquired the guns, where he

was when he planned the shooting, the fact that he was seeking

revenge for earlier gang violence, and the fact that Walker's

victim was not actually a member of the targeted gang.


                                - 17 -
             Walker was convicted and Johnson, his co-defendant, was

not.   But, while Walker contends in his brief to us that the only

difference between the government's case against him and its case

against Johnson was the evidence of Harrison's identification, the

record shows otherwise.

             For      example,      Boyd,   who   was     cooperating      with    the

Commonwealth's investigation of both Walker and Johnson and who

had testified to both defendants' involvement in the shootings,

offered considerably more detailed testimony regarding Walker's

involvement.       Boyd did not mention in his testimony regarding his

conversation with Johnson anything about either of the victims,

the location of the crime, a date, or any other circumstances

surrounding the shooting.              By contrast, Boyd, in his testimony

regarding his conversation with Walker, included all of these

details.

             Clark's and Dotson's testimony was, similarly, more

descriptive      of      Walker's   involvement    in     the   shooting    than    of

Johnson's.         Clark, for example, testified that, prior to the

shooting, Walker asked Clark to accompany him up the street "[s]o

[they] could kill anybody over there."                  And while Clark did then

go on to testify that Johnson also participated in the shooting,

his    account      of    Johnson's     involvement,       notably,     lacked     any

similarly explicit quotations.              Dotson, for his part, testified

that he had stolen the car that Walker used to commit the murder.


                                        - 18 -
He also testified that he saw Walker get into the car just hours

before the shooting, but that he had not seen Johnson at all that

day. Nor did Dotson at any point testify that Johnson was involved

in the shooting in any way.

            In sum, Boyd, Clark, and Dotson each provided detailed

incriminating testimony against Walker that differed substantially

from the testimony that each of them provided against Johnson, who

was acquitted.     Additionally, Harrison's own testimony concerning

the identification was hardly compelling.        We thus cannot say that

the SJC's ruling that the evidence, considered as a whole, did not

establish that Walker's counsel's failure to move to suppress

Harrison's out-of-court identification resulted in a "miscarriage

of justice" is unsustainable under AEDPA's deferential review

standard.    For that reason, despite the fact that the SJC raised

understandable concerns about the use of an all-suspect array, we

see no basis for concluding that, in this case, the use of that

array suffices to warrant the conclusion that Walker is entitled

to habeas relief.

                                     III.

            For   the   foregoing    reasons,   we   affirm   the   District

Court's rejection of Walker's petition for habeas relief.               The

parties shall bear their own costs.




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