Johnston v. Mitchell ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-2277
    BRYAN R. JOHNSTON,
    Petitioner, Appellant,
    v.
    LISA A. MITCHELL,
    Superintendent, Old Colony Correctional Center,
    Respondent, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Torruella, Selya, and Kayatta,
    Circuit Judges.
    David J. Nathanson, with whom Eva G. Jellison and Wood &
    Nathanson, LLP were on brief, for appellant.
    Jennifer K. Zalnasky, Assistant Attorney General, Criminal
    Appeals Division, with whom Maura Healey, Attorney General of
    Massachusetts, was on brief, for appellee.
    September 8, 2017
    KAYATTA, Circuit Judge.       After he was convicted of first
    degree murder in Massachusetts Superior Court, Bryan R. Johnston
    took a collateral challenge to the Massachusetts Supreme Judicial
    Court (SJC), arguing that his counsel rendered constitutionally
    ineffective assistance at trial.           The SJC affirmed Johnston's
    conviction, and the United States District Court for the District
    of Massachusetts denied his subsequent petition for a writ of
    habeas corpus under 
    28 U.S.C. § 2254
    .          On appeal, Johnston again
    argues that trial counsel made objectively unreasonable decisions
    at trial that ultimately led to Johnston's conviction. He contends
    that   trial   counsel   should   have   moved   to   suppress   statements
    Johnston made during psychiatric evaluations conducted in jail and
    at a hospital after he was arrested and requested a lawyer.             He
    also contends that trial counsel should have made an effort to
    prevent the jury from hearing about the various times that Johnston
    asked to speak to his attorney while he was in custody.            For the
    following reasons, we affirm.
    I.   Background
    The SJC's opinion describes the largely undisputed facts
    of this case.    See Commonwealth v. Johnston (Johnston I), 
    7 N.E.3d 424
    , 429–34 (Mass. 2014).         We draw heavily from that account,
    adding only the facts necessary to understand the contours of this
    appeal.
    - 2 -
    During       a   telephone    call    late    in     the     evening    of
    December 6, 2004, Johnston had an argument with David Sullivan, a
    friend from high school with whom Johnston had remained close.
    
    Id. at 429
    .     Soon after the telephone call ended, Johnston drove
    thirty-one miles from his home in Westfield, Massachusetts, to
    Sullivan's home in Amherst, where Johnston shot Sullivan six times,
    killing him.    
    Id.
    Driving      back    to   Westfield   early    in     the    morning    of
    December 7, 2004, Johnston stopped in a swampy, wooded area near
    a restaurant to dispose of the rifle he used to kill Sullivan.
    
    Id. at 430
    .    Leaving the site, he drove over a log that immobilized
    his vehicle.     
    Id.
           When a snowplow driver stopped to help him,
    Johnston told the driver that because he had been drinking, he did
    not want to call the police for assistance.             
    Id.
        Their efforts to
    move the car failed, and the snowplow driver left.                    
    Id.
       A short
    time later, two police officers who had been dispatched to the
    area of the restaurant saw the disabled vehicle and stopped.                     
    Id.
    Johnston approached them to ask for help.              
    Id.
        Johnston told the
    officers that "he had come from a friend's house and had stopped
    to urinate."    
    Id.
        The officers observed that Johnston's eyes were
    glassy and bloodshot and that he smelled lightly of alcohol, so
    they asked whether he had been drinking.          
    Id.
            He admitted he had,
    but claimed he had stopped drinking much earlier in the evening
    and was "fine" at that time.         
    Id.
    - 3 -
    The officers asked Johnston to perform field sobriety
    tests, but Johnston declined because he had heard from a college
    professor that field sobriety tests were illegal.                
    Id.
          The
    officers explained that Johnston would not be arrested, but that
    he would not be allowed to drive away without demonstrating that
    he could safely operate the vehicle.        
    Id.
       After Johnston took one
    sobriety test, the officers determined he was too impaired to drive
    safely.     
    Id.
       Johnston's car was towed and he was allowed to
    telephone a friend to drive him home, which Johnston calmly and
    collectedly did.       
    Id.
        Riding with the friend who picked him up,
    Johnston told his friend he was relieved he had not been searched,
    because, as he showed his friend, he was carrying a handgun despite
    the fact that his license to carry had been revoked.           
    Id.
    Upon returning home, Johnston called his parents, who
    would later testify that he was "making no sense, talking about
    the mafia and gangs, and threatening to commit suicide."               
    Id. at 433
    .   An hour later, he spoke on the telephone with his sister,
    who later stated that he made "no sense" during the call.                 
    Id.
    Johnston's parents came to see him in the morning of December 7
    and found that his eyes were unfocused and that he was saying
    "bizarre"    things.         
    Id.
       Johnston's   parents    initiated    civil
    commitment proceedings against him, and police officers served the
    commitment order on him later that morning.               
    Id. at 430, 433
    .
    Johnston refused to comply, struggled, and was eventually subdued
    - 4 -
    by the officers before being taken into protective custody on
    December 7, 2004.    
    Id. at 431
    .
    On December 9, 2004, police found the murder weapon in
    the woods with Johnston's fingerprints on it, and they discovered
    Sullivan's DNA on a pair of Johnston's pants.         
    Id.
       Johnston was
    placed under arrest for the murder.        At the Hampshire County House
    of Correction, Johnston "refused to answer questions on advice of
    counsel" during a medical intake procedure.           
    Id. at 435
    .    The
    following day, the sheriff directed Dr. Michael Sherry to conduct
    an examination to determine whether Johnston should be committed
    for observation pursuant to section 18(a) of Massachusetts General
    Laws chapter 123.1    
    Id.
       Johnston's counsel was present for the
    1   Section 18(a) provides, in pertinent part, that:
    If the person in charge of any place of
    detention within the commonwealth has reason
    to believe that a person confined therein is
    in need of hospitalization by reason of mental
    illness at a facility of the department or at
    the Bridgewater state hospital, he shall cause
    such prisoner to be examined at such place of
    detention by a physician or psychologist,
    designated by the department as qualified to
    perform such examination. Said physician or
    psychologist shall report the results of the
    examination to the district court which has
    jurisdiction over the place of detention or,
    if the prisoner is awaiting trial, to the
    court which has jurisdiction of the criminal
    case. Such report shall include an opinion,
    with reasons therefore, as to whether such
    hospitalization is actually required.      The
    court which receives such report may order the
    prisoner to be taken to a facility or, if a
    male, to the Bridgewater state hospital to be
    - 5 -
    examination.    
    Id.
        Dr. Sherry determined that Johnston needed to
    be hospitalized because he was in danger of harming himself.              
    Id.
    A petition was therefore filed in court seeking Johnston's thirty-
    day commitment to Bridgewater State Hospital (Bridgewater).               Id.;
    see 
    Mass. Gen. Laws ch. 123, § 18
    (a).       A judge approved the order
    the same day.     Johnston I, 7 N.E.3d at 435.        Over the weeks that
    followed,   Johnston    was   approached   numerous    times   by    medical
    personnel who asked him questions about his mental state.             Id. at
    436.   Medical staff made notes about these conversations, most of
    which showed Johnston repeatedly and frequently stating that he
    did not wish to respond until he could speak to his lawyer.               Id.
    at n.3.
    At trial, Johnston's sole defense was lack of criminal
    responsibility.    Id. at 431.   The evidence at trial showed that he
    was a regular user of drugs and alcohol.      Id.     It also showed that
    he began experiencing hallucinations and delusions while attending
    college in Hawaii, during which time he reported to his family
    that he was being followed, surveilled, and stalked.                Id.     He
    feared the "mafia" and the Federal Bureau of Investigation, both
    of which he thought were after him.          Id. at 431–32.         He began
    taking steroids so that he would grow strong enough to protect
    received for examination and observation for
    a period not to exceed thirty days.
    
    Mass. Gen. Laws ch. 123, § 18
    (a).
    - 6 -
    himself and his family.       
    Id. at 432
    .   Fearing that the mafia was
    pursuing him, he abandoned his studies in Hawaii and enrolled at
    a college in Massachusetts in 2002.       
    Id.
       "His professors recalled
    him as being friendly, highly competent, intelligent, and well
    respected by his peers.    They did not observe any unusual behavior
    or comments."   
    Id.
        Meanwhile, at one point in the fall of 2002,
    Johnston walked into a police department and, in a panic, reported
    he was being chased.    
    Id.
        Later, when Sullivan extended an offer
    to become roommates, Johnston declined because he was concerned
    that Sullivan was "a crime family boss" and that many of their
    friends were also involved with organized crime.          
    Id.
        Johnston
    believed that Sullivan had threatened him and also claimed to
    believe that Sullivan's crime family had arranged to have Johnston
    sexually assaulted while he had been living in Hawaii.          
    Id.
    Johnston presented at trial the expert testimony of a
    psychologist, Dr. Carol Feldman, and a psychiatrist, Dr. Martin
    Kelly. 
    Id. at 433
    . Dr. Feldman opined that Johnston was suffering
    from paranoid schizophrenia at the time of the killing and was
    deluded into believing he was being persecuted by the victim and
    others.   She determined that Johnston "experienced hallucinations
    in which he heard voices of people intending to kill him, and
    delusions of being subjected to surveillance."          
    Id.
         Dr. Kelly
    opined that Johnston suffered from a paranoid delusional disorder.
    
    Id.
       This disorder would not be "characterized by a decline in
    - 7 -
    functioning, which explains his capacity to work . . . and attend
    college."   
    Id.
        Dr. Kelly also testified that drug and alcohol use
    were not the cause of Johnston's delusions.               
    Id.
     at 433–34.     The
    Commonwealth offered an expert in rebuttal, Dr. Michael Welner, a
    psychiatrist who opined that Johnston was likely not schizophrenic
    and likely did not suffer from paranoid delusional disorder.                 
    Id. at 434
    .   Rather, Dr. Welner said, Johnston's hallucinations likely
    originated from his drug use.         
    Id.
    The jury convicted Johnston of first degree murder,
    armed burglary, possession of a large capacity firearm in the
    commission of a felony, and possession of a large capacity firearm
    without a license.     
    Id. at 429
    .      He appealed to the SJC and moved
    for a new trial.     Johnston's new trial motion was denied without
    an   evidentiary    hearing,    and    his     appeal    of   the   denial   was
    consolidated with his direct appeal.           
    Id.
        The SJC rejected all of
    Johnston's claims on appeal, including his claims that he received
    ineffective assistance of counsel.            
    Id.
       Johnston proceeded to the
    United States District Court for the District of Massachusetts in
    search of a writ of habeas corpus, which was denied.                See Johnston
    v. Mitchell (Johnston II), 
    213 F. Supp. 3d 282
    , 285 (D. Mass.
    2016).    This timely appeal followed.
    II.    Discussion
    On appeal, Johnston seeks habeas relief based on two
    ineffective-assistance-of-counsel claims.               First, he argues that
    - 8 -
    trial counsel should have moved to suppress evidence stemming from
    the conversations Johnston had with mental health professionals
    while in jail and while committed at Bridgewater, after he had
    refused multiple times to speak without counsel present.               Second,
    Johnston contends that trial counsel should have prevented the
    jury from considering evidence that Johnston repeatedly requested
    to speak with his attorney.           Johnston presented both of these
    arguments to the district court, and both were rejected.              
    Id.
         The
    district court also issued a certificate of appealability, 
    28 U.S.C. § 2253
    (c), and Johnston filed this appeal.               We review the
    district court's denial of Johnston's petition for habeas relief
    de novo.   See Tran v. Roden, 
    847 F.3d 44
    , 50 (1st Cir. 2017).
    A.
    1.
    "[T]he   Fifth     and    Fourteenth    Amendments'     prohibition
    against compelled self-incrimination require[s] that custodial
    interrogation be preceded by advice to the putative defendant that
    he has the right to remain silent and also the right to the presence
    of an attorney."    Edwards v. Arizona, 
    451 U.S. 477
    , 481–82 (1981)
    (citing Miranda v. Arizona, 
    384 U.S. 436
    , 479 (1966)).                "If the
    accused    indicates   that     he    wishes      to   remain   silent,      'the
    interrogation   must   cease.'          If   he    requests     counsel,     'the
    interrogation must cease until an attorney is present.'"                   
    Id. at 482
     (quoting Miranda, 
    384 U.S. at 474
    ).                "[I]t is inconsistent
    - 9 -
    with   Miranda     and    its   progeny   for   the    authorities,        at   their
    instance, to reinterrogate an accused in custody if he has clearly
    asserted his right to counsel."            
    Id. at 485
    .       Once the right to
    counsel    under      the    Fifth   Amendment        is   invoked,        custodial
    interrogation of a putative defendant may not resume without a
    lawyer present, even if the putative defendant has consulted with
    an attorney in the interim.          See Minnick v. Mississippi, 
    498 U.S. 146
    , 153 (1990).         The remedy for a violation of these prophylactic
    rules,    in    the   ordinary    case,   is    the    exclusion      of    evidence
    impermissibly gathered as a result of the violation.                   See Oregon
    v. Elstad, 
    470 U.S. 298
    , 306–07 (1985); cf. Harris v. New York,
    
    401 U.S. 222
    , 224–26 (1971) (evidence obtained in violation of
    Miranda is admissible for impeachment purposes).
    Johnston contends that the rules sculpted in Miranda,
    Edwards, and Minnick were violated when, after he refused to answer
    questions during his medical intake at the county jail, he was
    subsequently subjected to questioning and psychiatric evaluation
    by mental health professionals at Bridgewater without counsel
    present.    He relies heavily on Estelle v. Smith, 
    451 U.S. 454
    , 467
    (1981),    in    which    the   Supreme   Court   held     that   a   defendant's
    statements given in a court-ordered psychiatric evaluation could
    not be considered as evidence of future dangerousness at sentencing
    because the defendant was not made aware of his Fifth Amendment
    Miranda rights prior to questioning.              Johnston argues that his
    - 10 -
    invocation of one of those Fifth Amendment rights secured by
    Miranda--the right to receive counsel before being questioned--
    rendered any subsequent statements made by him without counsel
    inadmissible.      He therefore argues that his attorney should have
    moved to suppress all of the records produced at Bridgewater except
    for those of interviews conducted with counsel present. By failing
    to do so, says Johnston, trial counsel rendered unconstitutionally
    ineffective assistance under Strickland v. Washington, 
    466 U.S. 668
     (1984).      In other words, "counsel's representation fell below
    an objective standard of reasonableness and . . . there exists a
    reasonable probability that, but for counsel's unprofessional
    errors, the result of the proceeding would have been different."
    Turner v. United States, 
    699 F.3d 578
    , 584 (1st Cir. 2012).
    Johnston mounted the same challenge before the SJC.
    Citing Edwards, Minnick, and Estelle's discussions of a putative
    defendant's Fifth Amendment right to counsel, he argued that his
    responses to medical questions after refusing to answer questions
    without counsel present should have been excluded from trial.
    Instead, his own trial counsel "moved [for] the admission of the
    entire    Bridgewater   record."        The   prosecution   used   Johnston's
    statements to Bridgewater staff to "bolster[] the Commonwealth's
    position that Johnston['s] functioning was unimpaired" and to
    counter    his   defense   based   on   mental   illness.     Specifically,
    Johnston complained to the SJC that the jury was permitted to
    - 11 -
    consider statements he gave to medical staff in which he denied
    having hallucinations when asked on December 11, December 17, and
    December 18, 2004.            Johnston also pointed to records stating that
    during a medical examination on December 20, 2004, he denied any
    history of sexual abuse.                 These statements, along with others
    admitted         at    trial,    directly       undermined        Johnston's     experts'
    testimonies that he suffered from hallucinations and irrationally
    feared that he had been raped in Hawaii at the victim's direction.
    The    SJC     found    that        Johnston's     counsel      was     not
    ineffective           for   failing     to    seek    suppression.2        The    court's
    explanation for its holding, however, characterized the nested
    claim       in   Johnston's      ineffective-assistance            claim   as    a     Sixth
    Amendment right-to-counsel claim rather than the Fifth Amendment
    right-to-counsel            claim   actually     asserted.         Indeed,      the    court
    explicitly found that "what [was] not being argued" was "that
    [Johnston] invoked his right to remain silent."                         Johnston I, 7
    N.E.3d at 435–36.             Rather, said the SJC, Johnston's argument was
    "focuse[d] on the right to counsel under the Sixth Amendment to
    the United States Constitution, which attached at the time of his
    arraignment on the complaint that issued in the District Court."
    2
    The SJC applied the standard articulated in Commonwealth v.
    Comita, 
    803 N.E.2d 700
    , 703 (Mass. 2004) (citing Commonwealth v.
    Saferian, 
    315 N.E.2d 878
     (Mass. 1974)), which we have found to be
    "the functional equivalent of the federal Strickland standard."
    Powell v. Tompkins, 
    783 F.3d 332
    , 349 n.12 (1st Cir. 2015).
    - 12 -
    
    Id. at 436
    .        Finding that Johnston's pre-arraignment psychiatric
    evaluations were not critical stages of his criminal proceeding,
    the SJC held that Johnston "had no Sixth Amendment right that
    required hospital staff to refrain from interviewing him or to
    terminate interviews with him until counsel was present."              
    Id.
       It
    accordingly found that a suppression motion "based on an alleged
    violation of the defendant's Sixth Amendment right to counsel[]
    would not have succeeded," so trial counsel did not provide
    ineffective assistance by failing to file such a motion.              
    Id.
    Under the Antiterrorism and Effective Death Penalty Act
    of 1996 (AEDPA), 
    28 U.S.C. § 2254
    , "we are typically required to
    accord substantial deference to a state court's decision on the
    merits."      Jackson v. Marshall, 
    864 F.3d 1
    , 9 (1st Cir. 2017).            If
    a claim was "adjudicated on the merits in State court proceedings,"
    
    28 U.S.C. § 2254
    (d), we may grant habeas relief on that claim only
    if   the   state    adjudication   "was   contrary     to,   or   involved   an
    unreasonable application of, clearly established Federal law, as
    determined by the Supreme Court of the United States," Williams v.
    Taylor, 
    529 U.S. 362
    , 376 (2000) (opinion of Stevens, J.) (quoting
    
    28 U.S.C. § 2254
    (d)(1)),   or   "was   based   on    an   unreasonable
    determination of the facts in light of the evidence presented in
    the State court proceeding," 
    28 U.S.C. § 2254
    (d)(2).               "Only when
    a petitioner's claims are exhausted in state court but the state
    court fails to consider them on the merits or resolve them on
    - 13 -
    adequate and independent state law grounds do we review them de
    novo."    Jackson, 864 F.3d at 9 (citing Jenkins v. Bergeron, 
    824 F.3d 148
    , 152 (1st Cir. 2016)).
    Johnston contends that this is one such situation.             He
    construes the SJC's missive that "what [was] not being argued . . .
    [was] that he invoked his right to remain silent" to mean that the
    SJC refused to consider the Fifth Amendment grounds that would
    have supported a suppression motion.          Johnston I, 7 N.E.3d at 435–
    36.    Although Johnston acknowledges that we must presume, absent
    contrary indication, that a state court's adjudication is "on the
    merits," he notes that this presumption may be rebutted "when there
    is reason to think some other explanation for the state court's
    decision is more likely."        Harrington v. Richter, 
    562 U.S. 86
    , 99–
    100 (2011).      There is plenty of reason to think so here, says
    Johnston:   By affirmatively stating that Johnston was not arguing
    that   counsel   should   have    sought     suppression   under   the   Fifth
    Amendment, and instead evaluating only whether counsel should have
    sought suppression under the Sixth Amendment, the SJC was presented
    with Johnston's claim but failed to consider it.
    Clearly appreciating and acknowledging the conduct of
    counsel that Johnston alleged to be ineffective assistance, the
    SJC stated:      "The defendant . . . claims that trial counsel was
    ineffective for failing to move to suppress all responses the
    defendant made to officers at the Hampshire County house of
    - 14 -
    correction . . . and at Bridgewater State Hospital . . . after
    invoking his right to assistance of counsel." Johnston I, 7 N.E.3d
    at 435.   The SJC also clearly understood that Johnston was arguing
    that a motion to suppress would have succeeded because "assertion[]
    of his right to assistance of counsel . . . required hospital staff
    to refrain from talking to him."       Id. at 436.        Nevertheless, what
    the SJC seems not to have understood is Johnston's grounding of
    his argument in the standards of the Fifth, rather than the Sixth,
    Amendment.     This misapprehension likely arose from Johnston's
    failure to mention the Fifth Amendment by name in his initial brief
    to the SJC, although he did rely primarily on Fifth Amendment cases
    such as Edwards and Minnick.       See generally Estelle, 
    451 U.S. at 462, 469
     (differentiating the Fifth Amendment right to counsel
    from the Sixth Amendment right to counsel).
    Ultimately,    we   need   not      decide   whether   the    SJC's
    apparent misapprehension of the precise argument being made to it
    means that it did not adjudicate Johnston's claim on the merits.
    Rather, we can assume such a failure, yet nevertheless affirm on
    de novo review because Johnston has not demonstrated that trial
    counsel's    performance   in   failing    to    seek    suppression     of   his
    statements to medical personnel on Fifth Amendment grounds was so
    deficient as to constitute a deprivation of his Sixth Amendment
    right to counsel.
    - 15 -
    2.
    Where an ineffectiveness claim is based on counsel's
    decision not to file a suppression motion, the petitioner must
    demonstrate that a meritorious claim formed the basis of the
    proposed motion in order to establish deficient performance.                     See
    Lockhart v. Fretwell, 
    506 U.S. 364
    , 374 (1993) (O'Connor, J.,
    concurring) (citing Kimmelman v. Morrison, 
    477 U.S. 365
    , 382
    (1986)); Long v. United States, 
    847 F.3d 916
    , 920 (7th Cir. 2017)
    (stating that a claimant can only show deficient performance under
    Strickland if he can prove a suppression motion would have been
    meritorious); Jaynes v. Mitchell, 
    824 F.3d 187
    , 196 (1st Cir. 2016)
    (Souter,     J.)    (stating    that    a   claimant       must   show    the   claim
    underlying the proposed suppression motion is meritorious, but
    classifying this requirement as an aspect of the prejudice prong,
    rather   than      the    deficient-performance        prong,     of   Strickland);
    United States v. Mercedes-De La Cruz, 
    787 F.3d 61
    , 67 (1st Cir.
    2015) (same).
    We begin with the state of the law as reasonable counsel
    would have perceived it. Even today, Johnston points to no federal
    or   state   court       decision   holding     that   a   putative      defendant's
    responses to doctors' mental-health questions posed after the
    invocation of the right to counsel must be excluded when the
    defendant puts his mental state or capacity directly at issue.
    See Vargas-De Jesús v. United States, 
    813 F.3d 414
    , 418 (1st Cir.
    - 16 -
    2016) (observing that a lack of favorable precedent is one factor
    that can undermine a showing of deficient performance).           Johnston
    argues that Estelle, Edwards, and Minnick formed a framework within
    which any reasonably competent lawyer would think a suppression
    motion filed on these grounds had merit.          But Edwards and Minnick
    provide only the baseline principles that, in the ordinary case,
    a defendant's statements should be excluded if solicited by police
    after the defendant makes an affirmative, unambiguous invocation
    of the Fifth Amendment right to counsel, see Edwards, 
    451 U.S. at 485
    , and that an intervening meeting between the defendant and his
    counsel   does   not   sterilize     statements    given   in   subsequent
    interrogations where counsel is not present, see Minnick, 
    498 U.S. at
    153–55.   Neither case involved medical professionals asking
    questions aimed at evaluating whether the putative defendant is a
    danger to himself or others or requires medical treatment, and
    neither case provided that answers given to any and all questions
    asked after the invocation of a Miranda right must be excluded.
    Cf. Pennsylvania v. Muniz, 
    496 U.S. 582
    , 601 (1990) (recognizing
    "'routine booking question' exception which exempts from Miranda's
    coverage questions to secure the 'biographical data necessary to
    complete booking or pretrial services'" (quoting United States v.
    Horton, 
    873 F.2d 180
    , 181 n.2 (8th Cir. 1989))).
    Estelle, for its part, provides that a defendant is
    entitled, under the Fifth Amendment, to a Miranda warning before
    - 17 -
    speaking to a court-appointed psychiatrist if the prosecution
    seeks to admit the psychiatrist's testimony to demonstrate the
    defendant's future dangerousness.           Estelle, 451 U.S. at 469.         But
    the Court in Estelle expressly declined to address the propriety
    of admitting evidence gathered in a Miranda-violative psychiatric
    examination       in   cases      where    the      defendant     "attempts    to
    introduce . . . psychiatric evidence."              Id. at 468.
    Johnston also argues that the D.C. Circuit's opinion in
    United States v. Hinckley, 
    672 F.2d 115
     (D.C. Cir. 1982) (per
    curiam), abrogated on other grounds by Hudson v. Palmer, 
    468 U.S. 517
     (1984), demonstrates that he had a meritorious Fifth Amendment
    claim.   There, the defendant, John Hinckley, Jr., was arrested for
    attempting to assassinate President Ronald Reagan.                   Id. at 117.
    After being turned over to the FBI, he informed agents that he
    would not make any statement until he consulted with his attorney.
    Id. at 120.      Later, and without Hinckley waiving the right he had
    invoked, two agents conducted a twenty-five-minute "background"
    interview   in     which   they    asked   Hinckley     questions     about   his
    background, his marital status, his educational and employment
    history,    his    medical     problems,      his    history    of   psychiatric
    treatment, and his relationship with his family (among other
    things).    Id. at 121.        The district court granted suppression of
    the answers given to the agents' questions and of the testimonies
    of the agents as to Hinckley's demeanor during the interview, and
    - 18 -
    the D.C. Circuit affirmed.           Id. at 119.      The D.C. Circuit rejected
    the government's argument that because the agents should not have
    known       their   questions   were    reasonably      likely     to     elicit   an
    incriminating response from Hinckley, the interview was not a
    "custodial interrogation" under Rhode Island v. Innis, 
    446 U.S. 291
     (1980).         Hinckley, 
    672 F.2d at
    124–25.             The court observed
    that the "agents who conducted the 'background' interview of
    Hinckley would naturally have been aware of the likelihood that he
    would present an insanity defense," and "most details about an
    individual's background are relevant to a determination of sanity,
    [so]    a    systematic     'background'    interview        necessarily     elicits
    responses that the prosecution might want to introduce at trial."
    
    Id.
     at 124–25.
    Hinckley had nothing to say, however, about whether
    statements made to physicians in the wake of an unfulfilled request
    for counsel must be excluded even when the defendant introduces
    the testimony of a psychiatric expert who opines on the defendant's
    mental state.         On that subject, the Supreme Court in Estelle
    acknowledged        and   distinguished,    with   no    hint     of    disapproval,
    numerous      opinions     holding   that   it   is    not    a   Fifth   Amendment
    violation to require a defendant "to submit to a sanity examination
    conducted by the prosecution's psychiatrist" if "the defendant
    asserts the insanity defense and introduces supporting psychiatric
    testimony," because the defendant's "silence may deprive the State
    - 19 -
    of the only effective means it has of controverting his proof on
    an issue that he interjected into the case."            451 U.S. at 465–66.
    And a few years after Hinckley was decided, the Supreme Court
    blessed the admission of a psychiatric report describing "general
    observations about the mental state of [a] petitioner."               Buchanan
    v. Kentucky, 
    483 U.S. 402
    , 423 (1987).               The Court in Buchanan
    distinguished Estelle by noting both that trial counsel joined in
    the motion requesting an examination and that "petitioner's entire
    defense strategy was to establish the 'mental status' defense of
    extreme emotional disturbance."        
    Id.
       "In such circumstances," the
    Court   explained,    "with   petitioner     not    taking   the   stand,     the
    Commonwealth could not respond to this defense unless it presented
    other psychological evidence."        
    Id.
    The law of Massachusetts also suggested the difficulty
    of prevailing on the challenge Johnston contends counsel should
    have mounted.      In Blaisdell v. Commonwealth, the SJC determined
    that "a defendant who seeks to put in issue his statements as the
    basis of psychiatric expert opinion in his behalf opens to the
    State   the    opportunity    to   rebut   such    testimonial     evidence    in
    essentially the same way as if he himself had testified."                     
    364 N.E.2d 191
    , 200 (Mass. 1977).          In Seng v. Commonwealth, the SJC
    indicated even less concern that a criminal defendant's Fifth
    Amendment right against self-incrimination is implicated in an
    examination "not directed to the ultimate issue to be decided--
    - 20 -
    whether the defendant is guilty of the crime," like an examination
    for competence rather than to assess criminal responsibility.   
    839 N.E.2d 283
    , 291 (Mass. 2005).
    Since the conclusion of Johnston's trial, the Supreme
    Court has reaffirmed its holding in Buchanan that "where a defense
    expert who has examined the defendant testifies that the defendant
    lacked the requisite mental state to commit an offense, the
    prosecution may present psychiatric evidence in rebuttal."   Kansas
    v. Cheever, 
    134 S. Ct. 596
    , 601 (2013) (citing Buchanan, 
    483 U.S. at 408, 422
    ).     In Cheever, the Supreme Court found no Fifth
    Amendment violation where, to rebut the defendant's evidence that
    he lacked the mental capacity to commit the charged crime, the
    prosecution proffered evidence from a court-ordered psychological
    examination.   
    Id.
     at 602–03.
    Johnston seeks to distinguish Buchanan and Cheever by
    pointing out that the petitioner in Buchanan joined the motion for
    a psychiatric examination and did not proactively invoke his
    Miranda rights, while Cheever declined to decide whether the
    psychiatric examiner's statements went beyond merely rebutting the
    defendant's psychiatric evidence.    Johnston also points out that
    the psychiatric evaluations in these cases were different in
    character from the intake procedures conducted and the questions
    asked during rounds while he was being observed at Bridgewater.
    It is true that neither Buchanan nor Cheever dealt with a precise
    - 21 -
    factual analogue to this case.        But the point we make here is not
    that Cheever controls; after all, it was decided after Johnston's
    trial was completed.     Rather, the point is that Cheever would not
    read as it does if the prior case law had offered strong support
    for the notion that the results of a psychiatric examination
    compelled without counsel present could not be offered by the
    government in a case in which a defendant mounted an insanity
    defense.
    To some extent, Johnston's argument on this front boils
    down to the notion that a suppression motion would not have been
    frivolous, so his attorney had nothing to lose and everything to
    gain by taking a shot at it.     But a lawyer's performance does not
    fall to the level of a Sixth Amendment violation under Strickland
    simply because the lawyer fails to pursue any and all nonfrivolous
    strategies.     See Knowles v. Mirzayance, 
    556 U.S. 111
    , 127 (2009)
    ("The law does not require counsel to raise every available
    nonfrivolous defense.       Counsel also is not required to have a
    tactical reason--above and beyond a reasonable appraisal of a
    claim's dismal prospects for success--for recommending that a weak
    claim   be   dropped   altogether."   (citations   omitted)).   Rather,
    except perhaps in an unusual case presenting circumstances not
    present here, when defense counsel is faulted for having failed to
    file a motion to suppress, the failure may constitute ineffective
    assistance under Strickland only when "no competent attorney would
    - 22 -
    think a motion to suppress would have failed."          Premo v. Moore,
    
    562 U.S. 115
    , 124 (2011).
    Johnston cannot meet that test.       With nary an on-point
    case in support and plenty of signals from the state and federal
    courts pointing the other way, it was reasonable for trial counsel
    to conclude that a Fifth-Amendment-based suppression motion was
    highly likely to fail and thus was not worth bringing.       Johnston's
    ineffective-assistance claim therefore fails.3      See United States
    v. Ortiz, 
    146 F.3d 25
    , 28 (1st Cir. 1998) (finding counsel's
    conduct   "well   within    the    acceptable   range   of   reasonable
    professional assistance" because counsel relied on precedent that
    led him to "reasonably believe[]" a suppression motion "would be
    of no benefit to his client").      And because we find that Johnston
    fails to establish deficient performance under Strickland, we need
    not proceed to consider whether he has established prejudice under
    Strickland on this first claim.
    3 The district court came to the same conclusion, but it did
    so on different grounds, finding that because the "medical
    interviews were not of a criminal-investigative nature," they "did
    not constitute 'interrogations' under the Fifth Amendment."
    Johnston II, 213 F. Supp. 3d at 292 (citing Coble v. Quarterman,
    
    496 F.3d 430
    , 440 (5th Cir. 2007)). While we need not and do not
    decide whether this finding was correct, the fact that the district
    court judge so concluded certainly supports the point that trial
    counsel (like the district court here) could have reasonably viewed
    a suppression motion as doomed to fail.
    - 23 -
    B.
    Johnston's second claim on appeal is narrower:                    He
    contends that he received ineffective assistance of trial counsel
    because his attorney failed to move to redact the Bridgewater
    medical records so that the jury would not see Johnston's numerous
    refusals to answer questions on advice of counsel and his requests
    that   he   be   permitted   to   confer   with   counsel.        According   to
    Johnston, these references were prejudicial because they allowed
    the jury to draw an adverse inference that Johnston was withholding
    inculpatory evidence.        Johnston concedes that the SJC adjudicated
    and rejected this Strickland claim on the merits, and he makes no
    claim that the SJC's decision "was based on an unreasonable
    determination of the facts in light of the evidence presented in
    the State court proceeding."        
    28 U.S.C. § 2254
    (d)(2).          Hence, we
    consider only whether the SJC's conclusion "was contrary to, or
    involved    an   unreasonable     application     of,   clearly    established
    Federal law, as determined by the Supreme Court of the United
    States."    
    Id.
     § 2254(d)(1).
    A meritorious Strickland claim requires a claimant to
    establish both deficient performance and prejudice.                  Prejudice
    under Strickland requires a showing that there is a "reasonable
    probability that, but for counsel's unprofessional errors, the
    result of the proceeding would have been different."                 Porter v.
    McCollum, 
    558 U.S. 30
    , 38–39 (2009) (quoting Strickland, 466 U.S.
    - 24 -
    at 694). "A reasonable probability is one 'sufficient to undermine
    confidence in the outcome.'"            González-Soberal v. United States,
    
    244 F.3d 273
    , 278 (1st Cir. 2001) (quoting Strickland, 
    466 U.S. at 694
    ).
    The SJC found that Johnston was not prejudiced by his
    counsel's failure to attempt to redact the Bridgewater records.
    It noted that "[t]he evidence of [Johnston's] refusals on advice
    of counsel and his request to confer with counsel played a minor
    role    in   the   battle   of    experts     on   the   question    of    criminal
    responsibility,      with    an   enormous      amount   of   personal     history,
    conduct,     and   other    material    as    ammunition      for   that   battle."
    Johnston I, 7 N.E.3d at 439 (internal quotations omitted).                      The
    SJC observed that the jury was presented with evidence that
    Johnston "disposed of the murder weapon and cleverly avoided
    potential problems with the two Hadley police officers who were
    dispatched to the restaurant"; that his employer thought him highly
    competent and reliable in stressful situations; that faculty at
    his college thought him capable and observed no unusual behavior
    from him; that friends said that "he appeared normal when sober";
    that he had never been hospitalized for psychosis before; and that
    the     doctor     who   conducted      his     Massachusetts       General    Laws
    chapter 123, section 18(a) evaluation on January 6, 2005, testified
    that Johnston "did not show psychotic symptoms while at Bridgewater
    State Hospital."         Johnston I, 7 N.E.3d at 438–39.             The SJC also
    - 25 -
    recounted that the trial judge "forcefully instructed the jury
    that [Johnston's] refusals to answer questions on advice of counsel
    were 'appropriate,'" and that the jury "should 'not draw any
    adverse inference from the fact that somebody has been advised by
    their attorney not to answer questions,' 'either because of the
    advice or because actions were taken pursuant to the advice.'"
    Id. at 439.
    On this record, we cannot conclude that the SJC's finding
    of no prejudice was "contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by
    the Supreme Court of the United States."          
    28 U.S.C. § 2254
    (d)(1).
    To the contrary, it seems perfectly reasonable to conclude that
    any jury that would find evidence of sanity in Johnston's assertion
    of his rights would certainly find more than ample evidence of
    sanity in the other testimony concerning Johnston's behavior and
    comments.     Moreover, Johnston's theory in this case was not that
    he   was   never   lucid   and   rational.      Rather,   it   was   that   he
    episodically acted delusionally.            The challenged evidence bore
    very little on that issue.          AEDPA requires us to consider not
    whether we agree with the SJC's holding, but rather whether the
    SJC misconstrued or misapplied clearly established federal law in
    finding no prejudice to Johnston.           From this deferential vantage
    point, we cannot say that it did.
    - 26 -
    III.    Conclusion
    For   the   most   part,    the    SJC    clearly   understood   and
    reasonably rejected Johnston's claims on the merits in a manner
    consistent with federal constitutional law.               To the extent that
    the SJC misapprehended Johnston's argument regarding his Fifth
    Amendment   rights,     Johnston      suffered   no    prejudice   because   his
    Strickland argument pertaining to his questioning by mental health
    officials would not have prevailed.            For these reasons, we affirm.
    - 27 -