Phillip Ayala v. NELSON ALVES, Superintendent, MCI-Norfolk

United States Court of Appeals
For the First Circuit
No. 22-1924
PHILLIP AYALA,
Petitioner, Appellee,
v.
NELSON ALVES, Superintendent, MCI-Norfolk,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Montecalvo, Selya, and Lynch, Circuit Judges.
Gabriel Thornton, Assistant Attorney General, Criminal
Bureau, with whom Andrea Joy Campbell, Attorney General, was on
brief, for appellant.
Janet Heatherwick Pumphrey for appellee.
October 25, 2023

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LYNCH, Circuit Judge. Under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-
132, 110 Stat. 1214 (codified as amended in scattered sections of
the U.S. Code), and Supreme Court precedent, federal habeas courts
must give deference to a state court's findings of fact and
application of law. White v. Woodall, 572 U.S. 415, 419-20 (2014).
In addition, when a habeas petitioner asserts a claim of
ineffective assistance of counsel, federal habeas corpus review
must be doubly deferential. Burt v. Titlow, 571 U.S. 12, 15
(2013).
Petitioner Phillip Ayala was convicted, in 2007 after a
jury trial, of first-degree murder, unlawful possession of a
firearm, and unlawful possession of ammunition. His conviction
and the denial by the trial court of his motion for a new trial
were affirmed by the Massachusetts Supreme Judicial Court ("SJC")
in a carefully reasoned, unanimous, nineteen-page decision.
Commonwealth v. Ayala ("Ayala"), 112 N.E.3d 239, 241-42 (Mass.
2018).
A Massachusetts federal district court nonetheless
granted Ayala's petition for a federal writ of habeas corpus on
his argument that his state court trial counsel was ineffective.
See Ayala v. Medeiros ("Medeiros"), 638 F. Supp. 3d 38, 46 (D.
Mass. 2022). Arguing on appeal that the grant of Ayala's petition
was improper, the Commonwealth of Massachusetts seeks to vacate

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that order. We vacate, as the district court erred in applying
the AEDPA standard. Under that standard Ayala's petition must be
denied.1
I. Facts
A. The Underlying Crimes of First-Degree Murder, Unlawful
Possession of a Firearm, and Unlawful Possession of
Ammunition
On this habeas review of an ineffective assistance of
counsel claim, "[w]e take the facts largely as recounted by the
[SJC] decision affirming [Ayala's] conviction, 'supplemented with
other record facts consistent with the SJC's findings.'" Field v.
Hallett, 37 F.4th 8, 12 (1st Cir. 2022) (second alteration in
original) (quoting Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st
Cir. 2009)). The SJC found the facts as follows:
In the early morning of June 10, 2007, Robert
Perez and his friend, Clive Ramkissoon,
attended a house party held on the second
floor of a house in Springfield. Upon
arriving just before 2 A.M., Perez and
Ramkissoon encountered a bouncer on the first
floor at the bottom of the stairwell that led
to the second floor. The first-floor bouncer
was posted there to search guests before
letting them upstairs to the party. After
being searched, the two men went upstairs to
the party. As there were not yet many people
at the party, Perez returned to the first
floor and began speaking with the first-floor
bouncer in the entryway of the stairwell.
Shortly thereafter, as Perez was speaking with
the first-floor bouncer, the defendant arrived
1 We do not consider Ayala's other arguments, which are
not before us on appeal.

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at the party. As she had done with Perez and
Ramkissoon, the bouncer attempted to pat frisk
the defendant before allowing him to enter.
The defendant refused. After a brief argument
related to the search, the defendant
aggressively pushed past the bouncer and
climbed the stairs to the second floor. A
second bouncer intercepted the defendant on
the stairs and prevented him from entering the
party without having first been pat frisked.
The defendant argued with the bouncer and,
after yelling and screaming at him, was
escorted out of the house. As the defendant
was descending the staircase to leave, and
just steps away from Perez, the defendant
threatened to "come back" and "light the place
up." [FN 2] After leaving the house briefly,
the defendant returned and kicked in the
first-floor door. [FN 3]
[FN 2] At trial, a witness who had
attended the party testified that the
defendant was upset because he felt that
hosting a party at the house was
disrespectful to his niece, who had
recently been killed at a nearby
location.
[FN 3] The door was kicked in with such
force that police were later able to take
a footprint impression from the door and
confirm that it matched the defendant's
shoe.
Throughout this interaction inside the house,
Perez had an opportunity to observe the
defendant closely for several minutes. [FN 4]
Concerned by the defendant's threats and
behavior, Perez returned upstairs to find
Ramkissoon. The two men walked onto the
second-floor porch to "assess the situation"
and saw the defendant pacing back and forth on
the street in front of the house. Rather than
leave with the defendant still outside, given
his recent threat to "light the place up,"
Perez and Ramkissoon decided to wait on the
porch for a few minutes. After the defendant

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moved out of sight, Perez, Ramkissoon, and a
female friend decided to leave the party.
[FN 4] Robert Perez's account of the
defendant's actions was substantially
corroborated at trial by the testimony of
the first-floor bouncer.
After leaving the house, Ramkissoon and the
woman began walking across the road, while
Perez, who had stopped to tie his shoe,
trailed slightly behind. As they were
crossing the road, the woman stopped in the
middle of the road directly in front of the
house and began dancing. Perez walked over to
where the woman was dancing while Ramkissoon
kept moving down the road, to the left of the
house, toward the area where his vehicle was
parked. As Perez approached the woman to
guide her out of the way of oncoming traffic,
he heard a gunshot and saw a muzzle flash
appear near a street light located on the
sidewalk in front of a property adjacent to
the house. [FN 5] Perez saw the defendant
holding a firearm and testified that he was
able to identify the shooter as the defendant
because the muzzle flash from the gun
illuminated the shooter's face. He then
turned and ran away from the shooting as
several more gunshots rang out. Perez, who
had previously served in the United States
Army, testified that he heard between five and
seven shots, which he recognized as .22
caliber bullets based on his military
experience.
[FN 5] Perez testified that he saw the
muzzle flash came from "the sidewalk area
under the light," but later noted that he
could not be certain whether the street
light was on at the time of the shooting.
Perez soon circled back to where Ramkissoon's
vehicle was parked and discovered Ramkissoon
face down on the street. Perez performed
rescue breathing on Ramkissoon and telephoned
the police. Police officers arrived at the
scene by approximately 3 A.M. It was later

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determined that Ramkissoon died from multiple
gunshot wounds. [FN 6] Perez was soon brought
to the Springfield police station, where he
gave a statement recounting the events of that
morning. At the station, Perez identified the
defendant from a set of photographs shown to
him by police, stating that he recognized the
defendant's photograph as the "same person who
he had seen in the stairwell not wanting to be
pat frisked by the bouncer there, and then
firing the gun outside in the street at the
victim."
[FN 6] The police recovered five spent
shell casings from the scene of the
shooting. The medical examiner also
recovered two spent projectiles from
Ramkissoon's body. At trial, a police
officer with special knowledge of
ballistics testified that he performed a
microscopic examination of the shell
casings and the spent projectiles. Based
on the examination, he concluded that all
five casings came from a .22 caliber gun.
He further concluded that both
projectiles extracted from Ramkissoon's
body came from the same weapon. The
police never located the gun that was
used to kill Ramkissoon.
Ayala, 112 N.E.3d at 242-43 (cleaned up).
B. Ayala's State Criminal Trial
In January 2008 as part of discovery from the
Commonwealth in his criminal prosecution, counsel for Ayala
received a copy of a letter from the Northampton VA Medical Center
which stated that Perez, the Commonwealth's lead witness, "ha[d]
been in treatment for Post Traumatic Stress Disorder ["PTSD"] at
th[at] VA Medical Center since 4/14/2000 . . . with Dr. Kenneth
Lenchitz, PhD., . . . Nina A. Pinger, APRN, BC, CNS, and Lillian

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R. Struckus, MSW, LICSW . . . ." A list was attached of all of
Perez's appointments at the VA Medical Center from April 14, 2000,
to January 18, 2008, which defense counsel described as totaling
161 appointments.2
At trial two key eyewitnesses testified: Natasha
Frazier, the D.J. at the party who said Ayala could not have been
the shooter, and Perez, who identified Ayala as the shooter. The
defense called Frazier as its eyewitness. As the judge who heard
Ayala's 2014 motion for a new trial later found, the defense
counsel's "primary trial strategy" was to secure and support
Frazier's testimony that Ayala was not in the area when the
shooting occurred. As stated by the SJC:
Shortly before the trial was originally
scheduled to begin in July 2008, the
Commonwealth informed defense counsel that it
had recently learned that a witness likely to
be called by the defense, [Frazier], was a
confidential informant for a Federal gang task
force operating in Springfield. As a result
of this new information, the trial was
continued several times until over one year
later in August 2009.
The Commonwealth's disclosure resulted in
multiple motions by the defendant to obtain
Federal records detailing [Frazier]'s status
as a confidential informant (informant
records) and to compel the testimony of
Federal agents regarding the same through
State court proceedings. The defendant argued
2 As noted by the SJC, at trial Perez admitted that this
document established that he had "161 appointments with mental
health experts at the Veterans Administration." Ayala, 112 N.E.3d
at 255.

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that the information was material to his
defense because it was necessary to
demonstrate [Frazier]'s credibility as a
witness, which the defendant contended was
exculpatory information. At various times,
the defendant was informed that a successful
pursuit of this information would require that
he comply with the procedure set forth by
Federal regulations. The federally mandated
procedure required the defendant to submit a
written request for information describing the
informant records and the subject matter of
the testimony sought. Federal authorities
would then review the sought-after information
for privilege, confidentiality, and the
likelihood that its disclosure would
compromise ongoing investigations. After this
review, the Federal authorities would report
back to the defendant and either disclose the
requested information or explain why it was
continuing to be withheld. Despite being made
aware of the Federal procedure, the defendant
refused to comply and continued to
unsuccessfully request that the trial court
judge compel Federal authorities to disclose
this information.
During the time period of the continuance, and
while engaging in the pursuit of the federally
held information, the defense had the
opportunity to depose [Frazier]. At her
deposition, [Frazier] testified to her status
as a confidential informant for the Federal
Bureau of Investigation (FBI), including the
nature of her work and compensation. She also
testified to her observations on the morning
of the shooting, which supported the
defendant's theory that he was not present at
the scene at the time of the shooting.
Specifically, [Frazier] testified that she
witnessed the defendant driving away from the
scene before the shooting took place, and
instead implicated another individual whom she
witnessed fleeing the scene. The deposition
also revealed that [Frazier] had telephoned a
Federal agent on or about the morning of the
shooting and described what had occurred.

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On the eve of trial, the defendant filed a
motion to dismiss the case based on the
Commonwealth's failure to turn over
[Frazier]'s informant records. The motion was
eventually denied. The defendant then sought
once again to compel the testimony of a member
of the Federal gang task force, but the
subpoena was quashed. Subpoenas for several
other law enforcement officers and an
assistant United States attorney were
similarly quashed. After these subpoenas had
been quashed and the trial was set to begin,
at the suggestion of the trial judge, the
defendant finally submitted a request to
Federal authorities for the informant records
in compliance with the governing Federal
regulations described above.
Id. at 246-48 (footnotes omitted).
On August 12, 2009, before trial began, defense counsel
moved for a subpoena for all of Perez's treatment records beyond
what he had received in January 2008 from the VA Medical Center.
The order, which the court issued on August 13, 2009, mistakenly
read:
It is hereby ordered that KEEPER OF THE
RECORDS at Veteran's Hospital, 421 North Main
Street, Leeds, MA, release to the SUPERIOR
COURT CLERK'S OFFICE, any and all medical
records regarding the treatment of Robert
Perez, treated on or about 2009. This order
does not include psychiatric, psychological,
or social worker records.
(Emphasis added.) The court corrected the error and issued a
revised order on August 14, 2009, which read:
It is hereby ordered that KEEPER OF THE
RECORDS at Veteran's Hospital, 421 North Main
Street, Leeds, MA, release to the SUPERIOR
COURT CLERK'S OFFICE, any and all medical,

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psychiatric, psychological, or social worker
records regarding the treatment of Robert
Perez, treated on or about 2009.
Trial was scheduled to begin on the morning of August
17, 2009. That morning, defense counsel moved for a continuance
because he had not yet received a response to his request for
Frazier's confidential informant records. As to Perez, defense
counsel told the court he did not know "how [he was] supposed to
open if [he] d[id]n't know what to say about the . . . percipient
witness" and that "there's an issue of competence relative to this
witness," a reference to Perez. Both counsel then made a joint
motion "to have [the court] order the records be sent overnight,"
which the court allowed. The court told the parties they would
"have the records at the very latest tomorrow morning. . . . You
can review the records. If an issue stares this Court in the face
regarding mental competency right up to the time [Perez] is called
to testify, then I'll take the appropriate steps." The court
denied a continuance.
Trial began later that day, August 17, 2009, with the
jury, judge, and parties first traveling to the site of the
shooting for "a view of the subject premises" before opening
statements. After that view the court dismissed the jury for lunch
and told counsel that "there[] [was] a courier . . . in the process
of returning from the [VA Medical Center] with the necessary
documents."

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The prosecutor told the court she expected to call three
witnesses that afternoon -- first, Sergeant David Martin of the
Springfield Police Department; second, Dr. Joann Richmond, a state
forensic pathologist; and third, Perez. Defense counsel objected
to Perez being called that day because he "ha[d]n't seen the
records." The court said it would end the day's proceedings after
Dr. Richmond's testimony so the parties could review the records
and the court could "have ready, if necessary, someone to conduct
an examination" of Perez's competency.
The prosecutor then gave the Commonwealth's opening
statement. As part of that statement she told the jury that
Mr. Perez and Mr. Ramkissoon were on their way
to drop Mr. Perez off at his home in his
apartment in Springfield when they encountered
a young lady . . . who appeared to be going to
some type of a party.
. . . .
They gave her a ride [and] . . . parked on
Bristol Street. You all had the opportunity
to see Bristol Street where it[]s relationship
is to this house that you went in.
. . . .
They entered into the party. They were there
for a period of time. Then I expect that
you'll hear at some point the defendant, Mr.
Ayala, arrived at the party, . . . and there
was an issue about his coming in or being
agreeable to come in.
As a result, he was asked to leave. You'll
then hear . . . that Mr. Ayala came back and
he kicked in that door.

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. . . .
Now, all around this time Mr. Perez is
deciding it's probably not a good idea for
them to stay at this party. They are getting
ready, they are leaving. I believe the
testimony is going to be that Mr. Perez and
Mr. Ramkissoon and [the young woman] were
walking out of the party.
. . . .
I expect Mr. Perez will tell you that he heard
shots . . . and he looked. . . . He stood
there in the middle of the road where the
double yellow line is. Then he saw a man with
a gun firing, and he ran and he looked at the
guy.
. . . .
Mr. Perez will tell you that when he looked up
and he saw the man with the gun, he looked at
him. It was the same guy who caused the
commotion at the party. It was the same guy
who kicked in the door. It was the same guy.
. . . .
Now Mr. Perez, I'm sure you're going to hear,
as a result of military service to his country
suffers from posttraumatic stress. There are
issues that he's had. He was on probation.
He was violated. He's been incarcerated.
You're going to hear a lot about him and his
tale of woe.
But what you're going to hear is that when he
turned to see the gunshots in the middle of
that road . . . it was the same guy that caused
the commotion at the party. The same guy that
was kick[ed] out. The same guy that kicked in
the door.
The prosecutor did not mention Frazier or her testimony in the
Commonwealth's opening statement.

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Defense counsel told the jury his opening statement was
his "opportunity to tell you what the defense believes the evidence
will be in this particular case." Defense counsel described the
expected testimony of Frazier, a
paid confidential informant . . . [who was at
the party to] report confidential information
of gang activities, on guns, and on drugs at
that particular location to her handlers.
. . . .
[Frazier] actually saw Mr. Ayala here, who she
knew, come in and . . . create a ruckus . . .
because of the fact that he felt he was being
disrespected, that he was known in the
community, that he had a very close relative
. . . [who] was shot at the location right at
the house next door . . . . As a result of
him being disrespected, he kicked in the door.
Defense counsel stated that
[t]he evidence w[ould] establish that when the
shooting occurred, the confidential paid
federal informant was standing on the porch
that you visited today and that she saw what
took place downstairs where the shooting took
place . . . [and that] upon being debriefed of
the situation [by her handlers] said that she
knew that Mr. Ayala could not have done this
particular crime because she saw him leaving
and he was not in the area of where the crime
took place and he was not the shooter. And
that she saw a particular automobile . . .
that exited the area contemporaneously, or
right after, the shooting took place.
As for Perez, defense counsel stated that the
prosecution had
pointed out to you that Mr. Perez had service
in the armed services, that he suffers from
PTSD, and I believe the evidence will

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establish for you that he's presently residing
at [a VA Medical Center] in Northampton.
I believe the evidence will further establish
for you that at the time of this particular
incident when he gave the police a statement
relative to Mr. Ayala's participation in this
particular event, he had outstanding charges
pending against him relative to unarmed
robbery and that eventually he was
incarcerated relative to violating the terms
of probation. That during the time that he
was incarcerated at the state facilities here
in Massachusetts, he wrote certain letters to
the office of the district attorney, and I
believe that the evidence will establish for
you that he sought to have certain
considerations relative to the testimony that
he intended to give in this particular case.
Thus defense counsel established as a major theme that Perez, after
being in the armed services, "suffers [present tense] from PTSD"
and resided at the VA Medical Center in Northampton.
The prosecutor presented two witnesses on August 17,
2009: Sergeant Martin, an officer who responded to the scene that
morning, and Dr. Richmond, who testified that Ramkissoon died as
a result of his gunshot wounds. After Dr. Richmond's testimony,
at sidebar, the court told counsel that the clerk had received
Perez's records from the VA Medical Center and that counsel could
review them in the clerk's office. The court then adjourned at
3:39 pm with plans to return the following day, August 18, 2009.
Defense counsel reviewed the 38-page set of records that
arrived on August 17, 2009. As it turned out, this 38-page set of
records was an incomplete set of Perez's VA Medical Center records.

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This 38-page set, which defense counsel received and reviewed,
reinforced that as of July 30, 2009, Perez had been diagnosed with
"Posttraumatic Stress Disorder"; "Bipolar affective disorder,
manic, mild degree"; and "Generalized Anxiety Disorder", and that,
as of that date, he was taking three medications to treat those
conditions. The 38-page set, however, did not include the notes
taken during Perez's counseling sessions with the VA Medical
Center.
On August 18, 2009, defense counsel filed motions for a
competency evaluation of Perez and for payment authorization for
the defense to retain a psychological expert, Dr. Ronald Ebert,
both to consult on defense counsel's cross-examination of Perez
and then to testify for the defense. When trial resumed that
morning, defense counsel's motions were the first point of
discussion. With respect to Perez's competency, defense counsel
told the court that Dr. Ebert would testify that "a person that is
manic obviously is wired high and if he's not on his medications,
obviously [Dr. Ebert] doesn't believe [Perez] would be competent
to testify."
The court ordered a competency evaluation of Perez by an
independent psychologist and reserved judgment on the defense's
motion for payment for an expert psychologist until after that
evaluation. The court specifically asked the doctor, Dr. Andrew

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Bourke,3 to examine both "today whether [Perez] is competent to
testify based on whatever treatment he . . . is receiving at [a VA
Medical Center], but also what medication or treatment he may or
may not have been receiving on June 10, 2007[.]"
Dr. Bourke conducted a competency evaluation of Perez
that day. Dr. Bourke also "review[ed] the . . . [38-page set of]
records." As to Perez's competence to testify, Dr. Bourke
concluded that Perez was "able to provide a recollection of the
alleged incident that [was] very close to what [the doctor] was
able to review . . . [from] previous testimony [Perez] had given."
Dr. Bourke also concluded that Perez was "entirely alert and
oriented," "demonstrated intact memory functioning," and "[t]here
were no symptoms of major mental illness evident during [the
doctor's] interview with [Perez]." The doctor also "didn't see
any evidence [that day] of symptoms of bipolar disorder . . . ."
As to Perez's competence to perceive the shooter on June 10, 2007,
Dr. Bourke testified that Perez "told [him] that at that time he
was not on any medications . . . and he was feeling, prior to the
incident, okay. He was with friends and he wasn't suffering from
symptoms of a mental illness at that time." As the SJC noted,
"[f]ollowing the examination, Perez was declared competent to
testify." Id. at 244 n.7.
3 No party has raised any issue as to Dr. Bourke's
impartiality or qualifications at any stage in these proceedings.

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Before the prosecution offered Perez's direct testimony,
defense counsel repeated his request that Dr. Ebert at least have
"an[] opportunity to advise [defense counsel] as to how [he] should
conduct [his] cross-examination [of Perez] relative to well-
defined mental illness that is verified on the record." Defense
counsel also described the testimony Dr. Ebert would offer if the
court authorized payment, specifically "that anyone who suffered
from a bipolar situation that was manic in its nature, that was
not on medication, would be adversely affected in their ability to
either perceive or encounter and recounter events that would
occur." In response, the court asked how "the psychiatrist,
without being totally speculative, [was] going to be able to
testify how [Perez] acted on that night when [the doctor] wasn't
there?" The court also stated,
I can understand why you're asking to [consult
an expert] so you might be able to cross-
examine, but I don't think it r[]ises to the
level of just bringing in an expert now and
testifying as to what he would opine regarding
how he conducted himself or what his
percipient qualities were on that particular
day if there's no foundation laid that he was
suffering from that disease on that day.
The court reserved judgment on counsel's motion for payment for an
expert until after Perez's direct testimony, but ultimately
granted authorization for payment related to consultation on
defense counsel's cross-examination of Perez.

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The prosecution presented Perez's direct testimony that
afternoon, August 18, 2009. The SJC's description of Perez's
testimony is supported by the record. Specifically with respect
to his identification of Ayala as the shooter, Perez testified as
follows:
Q. . . . [Y]ou looked towards where the shots
were coming from; correct?
A. Right.
Q. And could you see a firearm?
A. Yes.
Q. And could you see someone with a firearm?
A. Yes.
. . . .
Q. . . . So when you looked back, the shots
were coming from -- did you see the person
holding a gun?
A. Yes.
. . . .
Q. . . . Did you recognize the shooter?
A. Yes.
Q. Who did you recognize the shooter as?
A. Mr. Phillip Ayala, the person who came and
said he would light the party up.
The court then dismissed the jury for the day and
addressed defense counsel's pending motion for funds for an expert
psychologist. The court first stated that it "discerned from [its]
observations and . . . hearing [of Perez's direct testimony] that

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there was no[t] one scintilla of vagueness, lack of clarity,
anything incomprehensible or anything other than detailed
testimony . . . ." For that reason the court told defense counsel
it "w[ould] not be allowing an expert to testify in the v[e]in
requested by the defense" unless "something countervailing and
compelling in cross-examination emerge[d]." (Emphasis added.)
The court did, however, "allow the motion for funds for [defense
counsel] . . . to consult [an expert psychologist] . . . prior to
commencement of cross-examination [scheduled to take place the
next day] . . . and for those purposes only." Defense counsel did
in fact consult with Dr. Ebert, who also had access to the 38-page
set of records, to prepare his cross.
As to the cross-examination of Perez the next morning
after defense counsel had consulted with his expert, the SJC found:
The reliability of Perez's identification was
vigorously challenged by defense counsel on
cross-examination. The defense confronted
Perez on his ability to accurately identify
the shooter under the lighting conditions at
the time of the shooting, his recollection of
certain events that morning, and the
discrepancies between Perez's statement to
police on the morning of the shooting and his
trial testimony regarding the defendant's
height and clothing. Additionally, the
defense presented evidence showing that Perez
suffered from bipolar disorder and
posttraumatic stress disorder (PTSD), the
latter being a result of his military service.
Specifically, evidence showed that he sought
psychiatric counselling and used marijuana to
cope with the effects of his diagnoses. There
was no evidence, however, that Perez was

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either suffering the effects of these
diagnoses or under the influence of marijuana
at the time of the shooting.
Id. at 243-44 (footnotes omitted). Defense counsel drew admissions
from Perez that he "went from unscheduled [as-needed counseling]
appointments to [regularly] scheduled [counseling] appointments"
after the shooting, "was hospitalized" for his mental health in
the fall of 2007, "start[ed] taking . . . [prescription] drugs" to
treat his mental health conditions "[a]fter October of 2007," was
"diagnosed with borderline personality disorder and also bipolar
disorder, mild manic after 2007," and "had a counseling session on
June 11th" of 2007, the day after the shooting. Perez stated the
effect of his PTSD on him "was minimal. It's just basically . . .
remembering a bad time, a bad dream, a bad situation . . . ."
Perez stated that his "appointments weren't necessarily all based
on PTSD" and that he also "went through a divorce" between 2000
and 2008 which caused him emotional distress for which he also
sought counseling.
The prosecution then offered the testimony of four more
witnesses: Detective Lieutenant Kenneth F. Martin of the
Massachusetts State Police who specialized in footwear impression
analysis and identification; Equilla Haines, the first-floor
bouncer the night of the shooting; Sergeant Mark Rolland of the
Springfield Police Department, who had responded to the scene of
the shooting that morning; and Sergeant John Crane, a ballistician

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with the Massachusetts State Police who analyzed the shell casings
and projectiles recovered from the shooting.
The prosecution rested after Sergeant Crane's testimony.
Defense counsel then moved for a directed verdict because "the
defendant was never identified" in court, which motion the court
denied.
The defense called its witness, Natasha Frazier. The
SJC found and the record supports that
the defense called a sole witness, [Natasha
Frazier], who was the disc jockey at the
party. [Frazier] testified that she knew the
defendant and looked up to him, and had seen
him multiple times that morning. [Frazier]
also testified that at one point, she was on
the second-floor porch and saw the defendant
emotional and upset outside after he had been
kicked out of the house. She and others
attempted to comfort the defendant and
suggested that he go home. She testified to
then witnessing the defendant leave the party
and drive away. [Frazier] was adamant that
the defendant left approximately thirty to
forty-five minutes before the shooting,
stating that he was "gone a long time before
the shooting even went down." In response to
further questioning on her certainty that the
defendant was not at the scene at the time of
the shooting, she testified, "He was not
there. Put my kids on it." Although she did
not witness the shooting, she testified that
she observed a red Taurus motor vehicle
"skidding off" from the scene immediately
after the shooting.

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Id. at 244 (footnote omitted). Frazier's testimony stretched into
August 21, 2009.4
After Frazier's testimony, defense counsel made an offer
of proof as to an additional witness. Defense counsel offered the
testimony of Richard Williams, an individual he had "direct[ed] to
. . . provide security for [Frazier]" after Frazier expressed
"safety concerns" arising out of her role as a witness. The court
did not allow Williams's testimony, concluding that Frazier
"didn't express any concern for [her safety]" in her testimony,
making Williams's testimony irrelevant. The court then dismissed
the jury for the weekend, with the defense formally leaving its
case open over the weekend in the hope that the federal government
would respond to its request for records related to Frazier's
confidential informant status before the trial resumed on Monday
morning.
By the morning of Monday, August 24, 2009, those records
as to Frazier had arrived. Based on the content of those records,
defense counsel made an offer of proof in an effort to call one of
Frazier's handling officers to support her credibility. The court
rejected that offer of testimony and the defense rested. Defense
4 On August 21, 2009, the court also heard argument on
defense counsel's motion for a mistrial. The defense argued that
Frazier's federal agent handlers engaged in improper
"intimidation" and sought to both discourage Frazier from
testifying and to influence the substance of her testimony. The
court denied this motion.

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- 23 -
counsel moved for a required finding of not guilty, which motion
the court denied.
Both sides gave closing statements that day, August 24,
2009. In his closing argument defense counsel argued that there
were "basically two witnesses that . . . testif[ied] to
contradictory conclusions." Defense counsel stated that Perez's
mental illnesses "are difficult illnesses and they may impact his
ability to see and conceptualize what was actually happening."
Defense counsel contrasted Perez's identification testimony with
Frazier's testimony, who "says she knew that it wasn't Phillip
Ayala. He had left. She saw he was nowhere in the location at
the time of the shooting." For that reason, defense counsel
argued, "this particular case . . . boil[ed] down to very basically
a misidentification."
In closing statements for the Commonwealth, the
prosecutor responded that "the detail [Perez] was able to recount
to [the jury]" about the events of June 10, 2007, supported his
identification of Ayala as the shooter. She argued, "[h]e's paying
attention. He's alert. He's using perhaps his military
background. He turns and he sees the person that he recognizes as
[Ayala]." She also argued that Frazier "didn't see the shooting
. . . [b]ut her friend[,] . . . the person that she looked up to,
. . . she said that he wasn't anywhere to be found." Finally, she

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- 24 -
acknowledged that "Perez has issues. He told you as a result of
military duty, he suffers from [PTSD]."
The jury convicted Ayala on all three counts on August
24, 2009; he was sentenced to life without parole. He sought state
post-conviction relief.
C. Ayala's State New Trial Motion and Appeal to SJC
Ayala filed a motion for a new trial on February 10,
2011. Id. at 241. Ayala's post-trial counsel received a complete
set of Perez's VA Medical Center records in February 2014,
including approximately 100 half-page "Progress Notes" recorded by
Perez's therapists during his counseling sessions from April 17,
2000, to July 24, 2009, which had been missing earlier at trial.5
Ayala then amended his motion for a new trial. As amended, Ayala
argued that his trial counsel was ineffective for (1) failing to
retain and call an expert witness on eyewitness identification,
(2) failing to retain and call an expert witness on ballistics to
testify about the characteristics of a muzzle flash, and (3)
failing to notice the absence of Perez's psychological records.
5 The February 2014 production, which included all of
Ayala's medical records through February 8, 2014, totaled 513
pages. Although the district court and Ayala refer to "[h]undreds
of pages of psychological records" in that production, many of the
records in the February 2014 production were related to treatment
Perez received after Ayala's trial in August 2009, duplicative of
the records that defense counsel received during trial, and/or
irrelevant to Perez's mental health.

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- 25 -
In support of his argument that defense counsel was
ineffective for failing to notice the missing records, Ayala
submitted Perez's complete medical records and offered an
affidavit from a psychiatrist, Dr. Jose Hidalgo, whom he argued he
could have offered as an expert if counsel had noticed and
corrected the absence of the records. Dr. Hidalgo's affidavit
stated his opinion that Perez's "mental and emotional conditions
had the potential to and may have interfered with Mr. Perez's
abilities to accurately perceive or recollect the events of June
10, 2007" and that "[m]ind altering substances" like marijuana "in
principle can reduce the ability to accurately perceive and recall
past events." (Emphasis added.)
[T]he motion judge, who was not the trial
judge, allowed an evidentiary hearing on trial
counsel's failure to retain and call experts
on eyewitness identification and ballistics.
The motion judge did not allow an evidentiary
hearing, however, on trial counsel's failure
to notice the absence of Perez's psychological
records that were subject to disclosure after
finding that the defendant had not raised a
substantial issue [on that argument]
warranting further hearing.
Id. at 252.
Defense counsel testified at Ayala's evidentiary hearing
that his "primary . . . strategy at [trial] was to prese[nt] the
testimony of [Frazier] which . . . posited that Mr. Ayala was not
the shooter, that she saw the event from a place where she had a
vantage point and that she named other individuals as the actual

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- 26 -
shooters involved." He testified that it was "a fair
representation" to say that he did "not pursu[e] obtaining the
mental health records . . . because [he was] focus[]ed on other
aspects of the case that [he] deemed essential and more important."
Defense counsel further testified that he "felt with
Natasha Fra[z]ier's testimony and [his] cross-examination of Mr.
Perez, that the case would be adequately put before the jury," and
that he "believe[d] it was tactically the correct thing not to
attack [Perez] as a veteran with PTSD."
The new trial motion judge denied the motion and
summarized his findings as follows:
Ayala was represented at trial by Attorney
Greg Schubert, a criminal defense attorney
with over thirty-five years' experience in
defending allegations of first degree murder.
He has tried forty-seven first degree murder
cases. . . . [Schubert's] primary trial
strategy was to secure the trial testimony of
[Frazier] who was the disc jockey at the
party. . . . Schubert believed that Frazier's
testimony, coupled with his cross-examination
of [Perez] regarding his mental state and the
inconsistencies in his statements to the
police, was sufficient to raise a reasonable
doubt regarding [Perez]'s identification of
Ayala as the shooter.
. . . .
[T]here was evidence that Perez was familiar
with Ayala from interacting with him earlier
in the evening. He had ample opportunity to
view Ayala prior to the shooting in a non-
stressful environment. Ayala walked within
inches of Perez twice when he ascended and
then descended the stairs which provided

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- 27 -
access to the party on the second floor. Perez
took note of Ayala's facial features as he
shouted threats when he was being thrown out
of the party. Perez saw Ayala a third time
when he observed him standing in the front
yard as he looked down from the balcony. In
addition, other witnesses corroborated
[Perez]'s testimony that Ayala was the
individual who made a scene at the party,
threatening to return and "light this place
up."
. . . .
On cross-examination trial counsel emphasized
that Perez observed the shooter for only a
matter of seconds, that his physical
description of the shooter was inconsistent,
and that he suffered from [PTSD]. Similarly,
trial counsel thoroughly argued
misidentification in closing.
With respect to the eyewitness identification expert,
the motion judge concluded that trial defense counsel's "decision
to [challenge Perez's identification of Ayala] without an expert
was not manifestly unreasonable when made and the absence of an
expert did not deprive Ayala of an otherwise available substantial
ground of defense." The motion judge denied Ayala's new trial
motion in full and did not specifically address Ayala's argument
with respect to the missing records.6
Ayala's appeal of the denial of his new trial motion was
combined with his merits appeal before the SJC. Id. at 242. Ayala
6 The motion judge also concluded that, with respect to a
ballistics expert, he "[could not] conclude that, but for counsel's
failure [to secure an expert on muzzle flash], the outcome of the
case would have been different."

-- 27 of 57 --

- 28 -
challenged the merits of his conviction on two grounds. First, he
argued that the evidence before the jury was insufficient to
support a conviction because "Perez[] testi[fied] that he was able
to identify [Ayala] as the shooter because the muzzle flash from
the gun 'illuminated' [Ayala]'s face [and] the illuminating
capacity of a muzzle flash is not within the ordinary, common
experience of a reasonable juror . . . ." Id. at 244-45. The SJC
rejected this argument because it found that "there was independent
evidence that would permit a rational juror to reasonably infer
that the crime scene was sufficiently illuminated at the time of
the shooting to provide Perez with the opportunity to identify
[Ayala] as the shooter" -- specifically, a police officer's
testimony that "the street lights near the location of the shooting
and the exterior lights on a nearby building were illuminated when
he arrived at the crime scene at approximately 4:30 A.M." Id. at
245.
Second, as the SJC described it, Ayala argued that
his due process rights under the Fifth and
Sixth Amendments to the United States
Constitution and art. 12 of the Massachusetts
Declaration of Rights were violated by (i) the
Commonwealth's failure to obtain and turn over
discovery related to the sole defense
witness's status as a confidential informant,
and (ii) the judge's decisions declining to
compel various State and Federal law
enforcement officers to testify to the defense
witness's status as a confidential informant.

-- 28 of 57 --

- 29 -
Id. at 246. The SJC rejected this argument because it concluded
that "[t]he information related to [Frazier]'s status as a
confidential informant was not in the Commonwealth's possession or
control, but rather was in the possession and control of the
Federal government." Id. at 248. It also concluded that although
"under certain circumstances [the SJC] will require the
Commonwealth to bear the burden of securing the cooperation of the
Federal government with regard to the disclosure of exculpatory
information[,] . . . [a]fter weighing [the applicable] factors, .
. . the Commonwealth was not required to bear the burden of
securing the release of the information" in this case. Id. at
248, 252.
The SJC then described Ayala's arguments that
the motion judge erred in denying his motion
[for a new trial] with respect to his
arguments that his trial counsel was
ineffective for (i) failing to retain and call
an expert witness on the accuracy of
eyewitness identifications, (ii) failing to
retain and call an expert witness on
ballistics evidence to testify about muzzle
flashes, and (iii) failing to notice the
absence of medical records that provided
further insight into Perez's mental health
issues and drug use.
Id. at 252.7 The SJC concluded that the failure to call an
eyewitness identification expert was not "manifestly unreasonable
7 The SJC considered Ayala's ineffective assistance claim
under Massachusetts's state law standard specific to ineffective
assistance claims arising out of certain types of criminal

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- 30 -
when it was made" and that the failure to call a ballistics expert
"was not likely to have influenced the jury's conclusion." Id. at
253, 255.
With respect to the missing records, the SJC found that
Perez testified that he had been diagnosed
with PTSD and bipolar disorder, that he
received counselling and medication to treat
the diagnoses, and that he had had a
counselling session on the day after the
murder. He further testified that over the
period of approximately eight years following
his discharge from the military, he had sought
counselling for his PTSD 161 times and that he
suffered from "night terror[s]" and
sleeplessness as a result of his PTSD. [FN
21] Additionally, he testified that he used
marijuana to cope with the effects of his PTSD
diagnosis.
[FN 21] At the evidentiary hearing on the
defendant's motion for a new trial, trial
counsel testified that, at the time of
the trial, he believed it would have been
a poor tactical choice to "attack" Perez
in front of the jury, given that Perez
was a veteran suffering from [PTSD].
Therefore, it is unlikely that trial
counsel would have used the information
convictions, including those for first-degree murder, not the
federal standard set forth in Strickland v. Washington, 466 U.S.
668 (1984). See Ayala, 112 N.E.3d at 252-53 ("[W]e apply the more
favorable standard of G.L. c. 278, § 33E and review [Ayala's] claim
to determine whether there was a substantial likelihood of a
miscarriage of justice. Under this review, we first ask whether
defense counsel committed an error in the course of the trial. If
there was an error, we ask whether it was likely to have influenced
the jury's conclusion." (citations omitted)). We have recognized
that this standard is "at least as generous to the defendant as
[the Strickland standard]." Horton v. Allen, 370 F.3d 75, 86 (1st
Cir. 2004). We consider the SJC's conclusion under this more
generous standard to incorporate the conclusion that Ayala had
failed to demonstrate prejudice under Strickland.

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- 31 -
in the missing records to further attack
Perez's ability to perceive the shooter
due to his PTSD diagnosis even if counsel
had them.
Notably, there was no evidence -- either
introduced at trial or contained within the
missing records -- that suggests that Perez's
mental health struggles or drug use affected
his ability to perceive the defendant on the
morning of the shooting. For example, a
defense expert's proffered testimony only
acknowledged that Perez's mental health
struggles "had the potential to and may have
interfered with Mr. Perez's abilities to
accurately perceive or recollect the
[shooting]." Trial counsel argued this point
specifically during closing, stating that
Perez's diagnoses "are difficult illnesses and
they may impact his ability to see and
conceptualize what was actually happening."
Additionally, although the missing records
suggested that Perez was more dependent on
marijuana than his testimony let on, there was
no evidence that he was under the influence of
marijuana on the morning of the shooting. The
defendant's proffered expert on this point
would not have materially added to the
defense, as he was prepared only to testify
that individuals have a reduced ability to
accurately perceive reality and recall past
events while under the influence of mind-
altering substances. Because the substance of
the missing records and proffered expert
testimony was already presented to the jury,
any error on the part of trial counsel in
failing to notice the missing records was not
likely to influence the jury's conclusion.
The motion judge therefore did not err in
denying the defendant's motion for a new
trial.
Id. at 255-56 (citations omitted and emphasis added). The SJC
affirmed Ayala's convictions and the denial of his motion for a
new trial, rejecting Ayala's claim that defense counsel was

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- 32 -
constitutionally ineffective for not obtaining the actual
treatment session notes of the doctors' sessions with Perez from
April 2000 to July 2009. Id. at 257.
D. Ayala's Petition for Federal Habeas Corpus
The appeal before us arises out of the grant by the
district court of Ayala's petition for federal habeas relief on
the ineffective assistance of counsel claim rejected by the SJC.
Ayala filed a petition for a writ of habeas corpus in the United
States District Court for the District of Massachusetts on April
21, 2020, which he amended with the court's permission on September
2, 2020. Medeiros, 638 F. Supp. 3d at 66. His petition set forth
three broad arguments for federal habeas relief: that the SJC's
decisions on (1) his insufficiency of the evidence argument, (2)
his due process argument, and (3) his ineffective assistance of
counsel arguments were each contrary to, and an unreasonable
application of, the law and also based on an unreasonable
determination of the facts. Ayala identified three elements of
his counsel's performance that, in his view, it was unreasonable
for the SJC to conclude were not deficient: counsel's failure to
(1) "retain an expert on eyewitness identification," (2) "retain
a firearms expert," and (3) "notice that he had not received
[Perez's] psychological records."
The district court issued a writ of habeas corpus based
on Ayala's argument that his counsel was ineffective for failing

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- 33 -
to notice that Perez's records were incomplete. Id. at 46. The
district court concluded that the SJC's decision that Ayala failed
to show prejudice was both based on an unreasonable determination
of the facts and amounted to an unreasonable application of the
law. Id. at 66. First, the district court held that
[t]he SJC's finding that "it is unlikely that
trial counsel would have used the information
in the missing records to further attack
Perez's ability to perceive the shooter due to
his PTSD diagnosis even if counsel had them"
is fundamentally flawed and does not support
its factual finding as to the value of the
psychological records.
Id. at 74. Second, the district court held that
[t]he SJC's finding that "there was no
evidence . . . contained within the missing
records . . . that suggests that Perez's
mental health struggles . . . affected his
ability to perceive the defendant on the
morning of the shooting" is contradicted by a
wealth of evidence in the psychological
records and, in light of that evidence, is
patently unreasonable.
Id. at 72 (omissions in original). Finally, the district court
held that
[t]he state court's finding that "the
substance of the missing records and proffered
expert testimony was already presented to the
jury" and "the additional records would not
have added to the information already at trial
counsel's disposal and used in cross-
examination" is also unreasonable . . . .
Id.8
8 Because we conclude that the district court erred in its
federal habeas review of the SJC's prejudice determination under

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- 34 -
This timely appeal followed.
II. Standard of Review
Strickland's test for ineffective assistance interacts
with AEDPA's limitations on federal habeas review of state court
decisions to create a "doubly deferential" lens through which both
we and the district court must view the state court's decision.
See Burt, 571 U.S. at 15.
This court is "effectively in the same position as the
district court vis-à-vis the state court record and ha[s] the
ability to review that record from the same vantage point" and
thus reviews the district court's decision de novo. Pike v.
Guarino, 492 F.3d 61, 68 (1st Cir. 2007). Here, although the
district court determined that "extensive supplementation [of the
SJC's recitation of the facts was] necessary," Medeiros, 638
F. Supp. 3d at 46, its supplementary facts were drawn entirely
from the record before the state court, not from independent
factfinding such as an evidentiary hearing. We review its decision
de novo and give its reading of the state court record no
deference.
AEDPA "demands that a federal habeas court measure a
state court's decision on the merits against a series of
'peculiarly deferential standards.'" Porter v. Coyne-Fague, 35
Strickland and AEDPA, and that resolves this case, we do not
consider other aspects of its decision.

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- 35 -
F.4th 68, 74 (1st Cir. 2022) (quoting Cronin v. Comm'r of Prob.,
783 F.3d 47, 50 (1st Cir. 2015)). Specifically, 28 U.S.C.
§ 2254(d) provides that "a writ of habeas corpus . . . shall not
be granted . . . unless" the state court decision either
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or (2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
(Emphasis added.); see also Field, 37 F.4th at 16-17 (discussing
this provision).
Subsection (d)(1) further divides into two clauses that
address the state court's legal analysis. Subsection (d)(1)'s
"'contrary to' clause applies when 'the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts.'" Porter, 35 F.4th at 74 (alterations in
original) (quoting Williams v. Taylor, 529 U.S. 362, 412-13
(2000)). The district court did not evaluate Ayala's habeas
petition under this "contrary to" prong, nor does Ayala defend the
writ on these "contrary to" grounds.
Subsection (d)(1)'s "unreasonable application" clause
"applies when 'the state court identifies the correct governing

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- 36 -
legal principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
[petitioner]'s case.'" Id. (first alteration in original)
(quoting Williams, 529 U.S. at 413). "[T]he 'unreasonable
application' clause applies 'if, and only if, it is so obvious
that a clearly established rule applies to a given set of facts
that there could be no "fairminded disagreement" on the question.'"
Id. at 75 (quoting White, 572 U.S. at 427). "[T]he more general
the rule, the more leeway courts have in reaching outcomes in case-
by-case determinations." Id. (internal quotation marks omitted)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Relief under subsection (d)(2) requires "a showing that
the state court decision 'was based on an unreasonable
determination of the facts' on the record before that court." Id.
(quoting 28 U.S.C. § 2254(d)(2)). "This demanding showing cannot
be made when '"[r]easonable minds reviewing the record might
disagree" about the finding in question.'" Id. (alteration in
original) (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)).
And "a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a
different conclusion in the first instance." Wood v. Allen, 558
U.S. 290, 301 (2010).9
9 AEDPA further provides that "a determination of a
factual issue made by a State court shall be presumed to be correct

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- 37 -
A. Ineffective Assistance of Counsel Standard Under
Strickland Even Before Applying Deference to State Court
To succeed on an underlying Strickland claim of
ineffective assistance of counsel in either state or federal court,
Ayala "must show both deficient performance by counsel and
resulting prejudice." Thompson v. United States, 64 F.4th 412,
421 (1st Cir. 2023) (internal quotation marks omitted) (quoting
Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010)); see also
Strickland, 466 U.S. at 687.
To establish deficient performance, Ayala must
"establish that his 'counsel's representation fell below an
objective standard of reasonableness.'" Thompson, 64 F.4th at 421
(internal quotation marks omitted) (quoting Tevlin, 621 F.3d at
66). "A court considering a claim of ineffective assistance must
apply a 'strong presumption' that counsel's representation was
within the 'wide range' of reasonable professional assistance."
Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland,
466 U.S. at 689).
To show prejudice, Ayala "must demonstrate a reasonable
probability that, but for counsel's unprofessional errors, the
[unless] rebutt[ed] . . . by clear and convincing evidence." 28
U.S.C. § 2254(e)(1). "The Supreme Court has carefully left . . .
open" the question of how subsections (d)(2) and (e)(1) fit
together, and "the question remains open in this circuit" as well.
Porter, 35 F.4th at 79. As we explain below, we need not resolve
the question to decide this case.

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- 38 -
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id. (internal quotation marks omitted) (quoting
Strickland, 466 U.S. at 694). "[S]how[ing] that the errors had
some conceivable effect on the outcome of the proceeding" is
insufficient; instead, Ayala must establish that the errors were
"so serious as to [have] deprive[d] [him] of a fair trial, a trial
whose result is reliable." Id. (quoting Strickland, 466 U.S. at
687, 693). "And if it turns out that the investigation would not
have led to any information that counsel would have used at trial,
then his dereliction can hardly have caused prejudice." Lang v.
DeMoura, 15 F.4th 63, 69 (1st Cir. 2021).
B. Deferential Review Under AEDPA of Ineffective Assistance
Claim
"Since an ineffective assistance of counsel claim is a
mixed question of law and fact, [on habeas review] it is evaluated
under the 'unreasonable application' clause of § 2254(d)." Ficco,
556 F.3d at 70 (citations omitted). "'Surmounting Strickland's
high bar is never an easy task,' . . . [and] [e]stablishing that
a state court's application of Strickland was unreasonable under
§ 2254(d) is all the more difficult." Harrington, 562 U.S. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). "The
standards created by Strickland and § 2254(d) are both 'highly
deferential,' and when the two apply in tandem, review is 'doubly'

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so." Id. (citations omitted) (first quoting both Strickland, 466
U.S. at 689, and Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997);
and then quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
To satisfy the prejudice requirement under Strickland on
a habeas petition governed by AEDPA, Ayala must show not just that
"it is 'reasonably likely' the result would have been different,"
id. at 111 (quoting Strickland, 466 U.S. at 696), but also that it
was unreasonable for the state court to conclude otherwise, cf.
id. at 112; see also Smith v. Thompson, 329 Fed. App'x 291, 294
(1st Cir. 2009) ("[B]ecause this case reaches us on habeas review,
we . . . evaluate . . . only whether the Appeals Court reached an
unreasonable conclusion on the prejudice question."). We may grant
habeas relief "if, and only if, . . . there could be no fairminded
disagreement on the question." Porter, 35 F.4th at 75 (internal
quotation marks omitted) (quoting White, 572 U.S. at 427).
III. Application of These Standards to SJC Decision
The district court held three of the SJC's factual
findings regarding prejudice were unreasonable under subsection
(d)(2).10 First, the district court determined "[t]he SJC's
finding that 'it is unlikely that trial counsel would have used
the information in the missing records to further attack Perez's
10 The district court expressly declared two of the SJC's
factual findings unreasonable. It called a third finding
"fundamentally flawed", which we take to mean the district court
considered the finding to fail under 28 U.S.C. § 2254(d)(2).

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- 40 -
ability to perceive the shooter due to his PTSD diagnosis even if
he had them' [was] fundamentally flawed . . . ." Medeiros, 638
F. Supp. 3d at 74.
Second, the district court held that "[t]he SJC's
finding that 'there was no evidence . . . contained within the
missing records . . . that suggests that Perez's mental health
struggles . . . affected his ability to perceive the defendant on
the morning of the shooting' . . . [was] patently unreasonable."
Id. at 72 (first three omissions in original) (quoting Ayala, 112
N.E.3d at 256).
Third, the district court held that "[t]he state court's
finding that 'the substance of the missing records and proffered
expert testimony was already presented to the jury' and 'the
additional records would not have added to the information already
at trial counsel's disposal and used in cross-examination' [was]
also unreasonable . . . ." Id.
Relying in large part on its conclusion that the SJC
made what in its view were unreasonable factual determinations,
the district court separately held that the SJC's decision was an
unreasonable application of the law under subsection (d)(1).11 Id.
11 The district court separately discussed distinct
rationales for granting relief under subsections (d)(1) and
(d)(2). As discussed above, Ayala's ineffective assistance of
counsel claim is a "mixed question of law and fact" which we
"evaluate[] under the 'unreasonable application' clause of §
2254(d)." Ficco, 556 F.3d at 70. To the extent the reasonableness

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- 41 -
at 75-77. We hold that (1) Ayala has not met his burden to show
the SJC's factual determinations were unreasonable, no matter
which standard applies, and (2) the SJC's decision was not an
unreasonable application of the law.
A. The District Court Erred in Concluding That the SJC's
Holding That Defense Counsel Would Not Have Used the
Information in the Missing Records Was Unreasonable
The district court called "[t]he SJC's finding that 'it
is unlikely that trial counsel would have used the information in
the missing records to further attack Perez's ability to perceive
the shooter due to his PTSD diagnosis even if he had them' . . .
fundamentally flawed." Id. at 74. The district court and Ayala
on appeal argue that this finding by the SJC was unreasonable
because trial counsel "could have used [these records] to explore
the effect of Mr. Perez's PTSD symptoms on his percipient abilities
and opened a fruitful area for expert testimony . . . ." Id.
Our careful review of the state trial records supports
the SJC's conclusion and certainly precludes any finding the
conclusion was unreasonable. First, Natasha Frazier's testimony
and credibility -- not Perez's mental health and drug use -- was
defense counsel's "primary trial strategy." Trial defense counsel
testified that it was "a fair representation" to say that he did
of the SJC's factual determinations bears on the reasonableness of
its application of the law, we incorporate review of those
determinations in our analysis under the unreasonable application
clause as discussed below.

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- 42 -
"not pursu[e] obtaining the mental health records . . . because
[he was] focused on other aspects of the case that [he] deemed
essential and more important." These choices were a reasonable
trial strategy consistent with defense counsel's strategy that it
was "tactically the correct thing not to attack [Perez] as a
veteran with PTSD."
Furthermore, Ayala's trial counsel did not gloss over
Perez's mental health struggles. In his cross-examination of
Perez, Ayala's trial counsel established that Perez "went from
unscheduled [as-needed counseling] appointments to [regularly]
scheduled [counseling] appointments" after the shooting, "was
hospitalized" for his mental health in the fall of 2007, "start[ed]
taking . . . [prescription] drugs" to treat his mental health
conditions "[a]fter October of 2007", was "diagnosed with
borderline personality disorder and also bipolar disorder, mild
manic after 2007," and "had a counseling session on June 11th" of
2007, the day after the shooting.
As the SJC found, counsel established these facts
through questioning while also pursuing his general strategy of
avoiding attacking Perez on account of his PTSD. It was reasonable
for the SJC to conclude that this strategy would be undercut were
defense counsel to probe into the individual sessions with

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providers. That strategy was reasonable12 and defense counsel's
questioning was consistent with it. Even if it were accurate that
defense counsel "could have used [these individual session
records] to explore the effect of Mr. Perez's PTSD symptoms on his
percipient abilities," id. at 74, that possibility is far from
enough to make unreasonable the SJC's conclusion that defense
counsel likely would not have done so.
It was not unreasonable for the SJC to conclude the
absence of missing information that would not have been used at
trial cannot have been prejudicial to Ayala. See, e.g., Lang, 15
F.4th at 69. Here, "fairminded" jurists and "reasonable minds" at
best could disagree as to whether defense counsel would have used
the records. Cf. Porter, 35 F.4th at 75 (first quoting White, 572
U.S. at 427 and then quoting Brumfield, 576 U.S. at 314). In such
a circumstance, we cannot conclude that the SJC's application of
the law was unreasonable under 28 U.S.C. § 2254(d)(1) nor can we
say that the SJC's factual determinations were unreasonable under
28 U.S.C. § 2254(d)(2). For the same reason, Ayala has not shown
the factual determinations to be erroneous "by clear and convincing
12 As part of their analysis of the deficiency of defense
counsel's performance, the district court and Ayala on appeal argue
that defense counsel's failure to pursue the missing records during
trial was not and could not be consistent with a strategic choice.
Medeiros, 538 F. Supp. 3d at 69-71. That argument fails for the
reasons stated above.

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- 44 -
evidence." 28 U.S.C. § 2254(e)(1). AEDPA forbids the grant of
habeas relief.
B. The District Court Erred in Finding Unreasonable the
SJC's Conclusions that There Was No Evidence that Suggested
Perez's PTSD or Drug Use Affected his Ability to Perceive the
Defendant the Morning of the Shooting
The district court held that "[t]he SJC's finding that
'there was no evidence . . . contained within the missing records
. . . that suggests that Perez's mental health struggles . . .
affected his ability to perceive the defendant on the morning of
the shooting' . . . [was] patently unreasonable." Medeiros, 638
F. Supp. 3d at 72 (first three omissions in original) (quoting
Ayala, 112 N.E.3d at 256). According to the district court and
Ayala on appeal, "[c]ounseling notes [in the missing records]
describe how certain stimuli present on the night of Mr.
Ramkissoon's shooting were either triggers for or associated with
Mr. Perez's PTSD symptoms . . . ." Id. They argue that the SJC
could not reasonably conclude there was no "suggest[ion]" in the
records that Perez's mental health interfered with his ability to
identify Ayala as the shooter. Id. We disagree.
The district court erred by focusing on the SJC's use of
the single word "suggests" in this sentence. Our "highly
deferential standard for evaluating state court rulings" requires
that we read the SJC's opinion in such a way as to give its choice
of language "the benefit of the doubt." Woodford v. Visciotti,

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537 U.S. 19, 24 (2002); see also Bell v. Cone, 543 U.S. 447, 455
(2005) (per curiam) (applying this logic and reviewing the full
context of a Tennessee Supreme Court decision to determine that
the state court implicitly addressed an issue despite not
explicitly saying it was doing so). We thus must examine the
context in which the SJC used the word to determine what the SJC
meant. The SJC's use of the word "suggests" that the district
court found unreasonable appeared as part of the topic sentence of
a paragraph in the SJC's opinion which reads, in full:
Notably, there was no evidence -- either
introduced at trial or contained within the
missing records -- that suggests that Perez's
mental health struggles or drug use affected
his ability to perceive the defendant on the
morning of the shooting. For example, a
defense expert's proffered testimony only
acknowledged that Perez's mental health
struggles "had the potential to and may have
interfered with Mr. Perez's abilities to
accurately perceive or recollect the
[shooting]." Trial counsel argued this point
specifically during closing, stating that
Perez's diagnoses "are difficult illnesses and
they may impact his ability to see and
conceptualize what was actually happening."
Additionally, although the missing records
suggest that Perez was more dependent on
marijuana than his testimony let on, there was
no evidence that he was under the influence of
marijuana on the morning of the shooting. The
defendant's proffered expert on this point
would not have materially added to the
defense, as he was prepared only to testify
that individuals have a reduced ability to
accurately perceive reality and recall past
events while under the influence of mind-
altering substances. Because the substance of
the missing records and proffered expert

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- 46 -
testimony was already presented to the jury,
any error on the part of trial counsel in
failing to notice the missing records was not
likely to influence the jury's conclusion.
The motion judge therefore did not err in
denying the defendant's motion for a new
trial.
Ayala, 112 N.E.3d at 256 (citations omitted).
Read in that context, it is clear the SJC used the phrase
"no evidence . . . suggests" to mean "no evidence necessarily
suggests." The district court's different reading would directly
contradict the SJC's statement in the very next sentence that the
defense's proffered expert would testify "that Perez's mental
health struggles 'had the potential to and may have interfered
with Mr. Perez's abilities to accurately perceive or recollect the
[shooting].'" Id. This paragraph of the SJC's opinion read as a
whole in fact concludes that no evidence in the records established
with the necessary certainty that Perez's mental health struggles
interfered with his ability to identify Ayala as the shooter. Even
Dr. Hidalgo, whose affidavit was submitted in support of Ayala's
new trial motion after he reviewed the missing records, merely
stated no more than that Perez's conditions "had the potential to
and may have interfered with Mr. Perez's abilities to accurately
perceive or recollect the events of June 10, 2007." (Emphasis
added.) As to Perez's marijuana usage, Dr. Hidalgo stated only
that "mind altering substances" like marijuana "in principle can
reduce the ability to accurately perceive and recall past events."

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- 47 -
(Emphasis added.) And defense counsel himself, during closing
statements, repeatedly stressed that Perez's identification of
Ayala as the shooter may have been mistaken.
Nothing in the missing records makes this conclusion by
the SJC unreasonable. Ayala focuses on the missing records of
Perez's counseling sessions after the shooting. Those missing
records contain approximately ten entries after the shooting but
before Ayala's trial in which counselors record Perez stating
various versions of the fact that mouth injuries sometimes
"triggered" Perez's PTSD and that seeing the victim's "shattered"
teeth and "bloody mouth" as well as "attempt[ing] to provide mouth
to mouth to [the murder victim] . . . retriggered" his PTSD at
some point after the shooting, causing him to "flashback[]." These
records undoubtedly show that Perez suffered from PTSD at some
point after the shooting. Crucially, they do not render
unreasonable the SJC's determination that there was no evidence
that Perez was necessarily suffering from PTSD at the time of the
shooting or at the time he identified the shooter.
Even if Perez's observation of Ramkissoon's injuries and
attempt to provide mouth to mouth immediately retriggered Perez's
PTSD, those potential triggers occurred after -- not while -- Perez
observed the shooter. Perez's recollection was, as the SJC
observed, "substantially corroborated at trial by the testimony of
the first-floor bouncer." Id. at 243 n.4.

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- 48 -
The district court omitted the phrase "or drug use" in
declaring this conclusion by the SJC unreasonable. See Medeiros,
638 F. Supp. 3d at 72. On appeal Ayala argues that the SJC's
determination that there was "no evidence . . . that Perez's . . .
drug use affected his ability to perceive Ayala on the morning of
the shooting," Ayala, 112 N.E.3d at 256 (emphasis added), was
unreasonable because "Dr. Hidalgo stated that Perez’s long history
of heavy marijuana use reduced his 'ability to accurately perceive
and recall past events . . . .'" This is an inaccurate
characterization of Dr. Hidalgo's proffered testimony. The
paragraph of Dr. Hidalgo's affidavit that Ayala quotes in his brief
reads, in full, as follows:
Mr. Perez has a long history of heavy
marijuana use and there is no indication that
at the time of the incident on June 10, 2007[,]
he had reduced his marijuana use. Mind
altering substances in principle can reduce
the ability to accurately perceive reality and
recall past events. For example, I have had
patients who present to my clinic intoxicated
with marijuana and who may say rude and
inappropriate things at the time of their
visit. In subsequent visits, when sober, they
may not remember accurately the nature of
their past inappropriate behavior.
(Emphasis added.) In other words, as the SJC found,
[t]he defendant's proffered expert . . . was
prepared only to testify that individuals have
a reduced ability to accurately perceive
reality and recall past events while under the
influence of mind-altering substances.

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- 49 -
Id. The SJC reasoned that the missing records and this proffered
testimony did not necessarily suggest that Perez's drug use
interfered with his ability to identify Ayala as the shooter
because
although the missing records suggested that
Perez was more dependent on marijuana than his
testimony let on, there was no evidence that
he was under the influence of marijuana on the
morning of the shooting.
Id. Nothing in the missing records makes this conclusion by the
SJC unreasonable either.
At the least, "fairminded" jurists and "reasonable
minds" could disagree, see Porter, 35 F.4th at 75, as to whether
there was any evidence in the missing records "that suggests that
Perez's mental health struggles or drug use affected his ability
to perceive the defendant on the morning of the shooting," Ayala,
112 N.E.3d at 256. And so habeas relief is improper under AEDPA
because the SJC's conclusion was not unreasonable under 28 U.S.C.
§ 2254(d)(1), nor were its factual determinations unreasonable
under 28 U.S.C. § 2254(d)(2). For the same reason, Ayala has not
shown the factual determinations to be erroneous "by clear and
convincing evidence." 28 U.S.C. § 2254(e)(1). AEDPA makes habeas
relief inappropriate.

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- 50 -
C. The District Court Erred in Finding Unreasonable the
SJC's Conclusions that the Substance Contained in the Missing
Records was Already Presented to the Jury
The district court also concluded that it was
unreasonable for the SJC to conclude that "'the substance of the
missing records and proffered expert testimony was already
presented to the jury' and 'the additional records would not have
added to the information already at trial counsel's disposal and
used in cross-examination . . . .'" Medeiros, 638 F. Supp. 3d at
72.
The SJC reasonably determined that the key elements of
Ayala's argument were presented to the jury. Much of the evidence
in the missing records is consistent with and cumulative of the
evidence the jury heard at trial. Cumulative evidence generally
"offer[s] an insignificant benefit, if any at all" for purposes of
a Strickland claim. Wong v. Belmontes, 558 U.S. 15, 23 (2009).
To the extent the missing records were cumulative of evidence heard
at trial, the SJC's conclusion that the records' absence did not
cause Ayala prejudice was not unreasonable. Cf. United States v.
Abdelaziz, 68 F.4th 1, 71 (1st Cir. 2023) (explaining, in context
of harmless error review, that exclusion of evidence likely did
not affect result because similar evidence was already before
jury); Stephens v. Hall, 294 F.3d 210, 225-26 (1st Cir. 2002)
(concluding that state court's decision that failure to offer
impeachment evidence did not prejudice defendant was not

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- 51 -
objectively unreasonable where the evidence arguably "added
nothing new"). The district court identified two ways in which it
concluded the missing records contained information that was not
otherwise available to the jury. We address each in turn.
1. Purported Discrepancies Between the Missing Records
and Perez's Testimony
The district court and Ayala on appeal argue that, on
their reading of the record, the SJC's conclusion must be
unreasonable because the counseling session notes contradict
Perez's testimony that at the time of the shooting "his PTSD was
'under control'; that for him, '[i]t's just basically . . .
remembering a bad time' and he 'had done the steps that [he] needed
to do to get [him]self better' and the effect it had on him at the
time of Mr. Ramkissoon's shooting was 'minimal.'" Medeiros, 638
F. Supp. 3d at 73 (alterations and omissions in original). That
the shooting itself may have triggered in its aftermath more
intense PTSD does not necessarily contradict this testimony.
Beyond this, "where [as here] the relevant error is
failure to impeach a government witness, we begin [the prejudice
analysis] by assessing the strength of the prosecution's case, and
the effectiveness of the defense absent the impeachment evidence."
Malone v. Clarke, 536 F.3d 54, 64 (1st Cir. 2008) (internal
quotation marks omitted) (quoting Stephens, 294 F.3d at 218). With
that context in mind, we must "then consider the potential

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impeachment value of the evidence in undermining the credibility
of the witness's testimony." Id. (internal quotation marks
omitted) (quoting Stephens, 294 F.3d at 218).
As to the strength of the prosecution's evidence, the
SJC characterized that evidence as strong enough to support a
conviction even without Perez's eyewitness testimony, and Ayala
develops no argument on appeal that that conclusion was
unreasonable:
The Commonwealth also presented
circumstantial evidence linking the defendant
to the shooting. For example, prior to the
shooting, the defendant arrived at the party
and refused to be searched. He was visibly
upset that there was a party taking place at
the house, and after being kicked out, he
threatened to come back to the party and
"light the place up." Soon after, he returned
and kicked in the first-floor door with such
force that he left a footprint on the door.
Additionally, the defendant was seen pacing
around on the street in front of the house
just a few minutes before Perez and Ramkissoon
left the party and the shooting took place.
From this evidence, the jury could have
reasonably inferred that the defendant did not
want to be searched on the morning of June 10
because he was carrying a gun, that he was
still near the house when the shooting
occurred, and that his anger about the party
motivated him to shoot Ramkissoon as he
crossed the street. This evidence, when taken
together, "formed a mosaic of evidence such
that the jury could conclude, beyond a
reasonable doubt, that the defendant was the
shooter[.]"
Ayala, 112 N.E.3d at 246 (cleaned up) (quoting Commonwealth v.
Jones, 77 N.E.3d 278, 289 (Mass. 2017)).

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- 53 -
Nor does Ayala account for the strategic decision not to
increase the jury's sympathy for a veteran with honorable service
by dwelling too much on the particulars of Perez's after-the-event
PTSD, nor for counsel's strategic decision to address Perez as an
honest witness who made a mistake as to identification in the
stress and shock of the event. There is no difference between the
effectiveness of the defense with or without the missing records if,
as the SJC found, "it is unlikely that trial counsel would have used
the information in the missing records to further attack Perez's
ability to perceive the shooter due to his PTSD diagnosis even if
counsel had them." Id. at 255 n.21.
Further, reasonable minds could read the missing records
as consistent with Perez's trial testimony. See Porter, 35 F.4th
at 75. Beginning in mid-2003, Perez's treatment providers were
often annotating Perez's counseling notes with "P.R.N.," a medical
abbreviation for pro re nata which meant Perez's therapist expected
to see him only as needed. See PRN, Stedman's Medical Dictionary
(2014). On June 10, 2007, when Ramkissoon was killed, Perez had
not requested a session with his therapist since February 2007,
four months earlier, and had apparently not mentioned his PTSD
symptoms in therapy since August 2005, almost two years earlier.

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- 54 -
In fact, Perez screened negative for PTSD during a medical visit
at the VA Medical Center on September 8, 2006.13
2. Availability of Expert Testimony
The district court misread the record when it concluded
the SJC was unreasonable to conclude that the substance of the
proffered expert testimony was before the jury. According to the
district court, "the SJC relied on trial counsel's closing argument
as an adequate substitute for expert psychiatric evidence."
Medeiros, 638 F. Supp. 3d at 73.
To the contrary, the SJC did not hold that trial
counsel's closing argument was "an adequate substitute for expert
psychiatric evidence." Id. Rather, the SJC recognized that the
specific point that Ayala proffered an expert to make -- that
Perez's mental health struggles "had the potential to and may have
interfered with Mr. Perez's abilities to accurately perceive or
recollect the [shooting]" -- was already before the jury and had
been highlighted in trial counsel's closing argument. Ayala, 112
N.E.3d at 256 (alteration in original).
Ayala and the district court state that Ayala was
prejudiced because "[d]efense counsel could not effectively argue
13 Because a reasonable person could read these records as
supporting -- rather than calling into question -- Perez's
testimony about his management of his mental health conditions,
they also support the reasonableness of the SJC's finding that
defense counsel likely would not have used them.

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- 55 -
for expert psychological testimony . . . without the missing
psychological records . . . ." Medeiros, 638 F. Supp. 3d at 53.
However, it is reasonable to conclude that the trial court would
not have allowed his motion for funds for expert testimony even if
he had possessed the full set of records at the time of trial. At
trial, defense counsel sought to offer Dr. Ebert's opinion "that
anyone who suffered from a bipolar situation that was manic in its
nature, that was not on medication, would be adversely affected in
their ability to either perceive or encounter and recounter events
that would occur." In addressing defense counsel's motion for
funds to offer that expert testimony at trial, the court stated
its view that "the psychiatrist, without being totally
speculative, [was not] going to be able to testify how [Perez]
acted on that night when [the doctor] wasn't there . . . ." The
court eventually denied that motion for funds because "there's no
foundation laid that he was suffering from that disease on that
day."
It is certainly possible, as the SJC must have concluded,
that the missing records would not have changed the trial court's
perspective on these issues at all. This is particularly so given
the SJC's finding that there was no evidence that Perez was
necessarily suffering from PTSD at the time of the shooting or at
the time he identified the shooter, meaning the SJC concluded that
these records would not have laid the necessary foundation for

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- 56 -
expert testimony. And even with the missing records, the
psychiatrist's opinion about what happened on the night of the
shooting would still have been "speculative," as the missing
records do not change the fact that "[the doctor] wasn't there" on
the night of the shooting, nor do they describe with certainty
exactly when Perez's PTSD symptoms began. Even if it were possible
that the missing records could have made the proposed expert
testimony seem less speculative to the trial judge and offered
defense counsel a stronger argument that there was a "foundation
laid that he" was possibly suffering from PTSD on the day in
question, that possibility is far from enough to justify habeas
relief. Even accounting for those possibilities, Ayala has shown,
at most, that "fairminded" jurists and "reasonable minds" could
disagree. See Porter, 35 F.4th at 75. And so habeas relief is
improper under AEDPA.
The SJC also stated that the "defense expert's proffered
testimony only acknowledged that Perez's mental health struggles
'had the potential to and may have interfered with [his percipient
abilities],'" Ayala, 112 N.E.3d at 256 (emphasis added), not that
there was any certainty of interference. That theme of potential
interference was certainly before the jury. Habeas relief under
AEDPA is improper. See Porter, 35 F.4th at 75.

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IV. Conclusion
Under AEDPA and Strickland's doubly deferential
standard, we conclude that the district court erred in granting
relief. We vacate and order that Ayala's petition for a writ of
habeas corpus on his ineffective assistance of counsel claim for
failure to notice the missing records be denied.

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