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 

 
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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). 
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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 eyewitness 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. 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 allsuspect 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. 
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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 
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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 
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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 
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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. 
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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. 
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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.