Johnson v. Coyne-Fague

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JODY LEE JOHNSON,
Plaintiff,
v.
PATRICIA A. COYNE-FAGUE,
Defendant.
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C.A. No. 21-433 WES
MEMORANDUM AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before 	the 	Court 	is 	Defendant 	Patricia 	A. 	Coyne-Fague’s
(“State”) Motion to Dismiss, ECF No. 21, Jody Lee Johnson’s Second
Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus,
ECF 	No. 	19 	(“Second 	Amended 	Petition”). 	In 	his 	Second 	Amended
Petition, 	Johnson 	asserts 	that 	he 	was 	deprived 	of 	his 	right 	to
effective 	assistance 	of 	counsel 	in 	violation 	of 	the 	Sixth 	and
Fourteenth 	Amendments 	to 	the 	United 	States 	Constitution 	and 	that
his 	due 	process 	rights 	under 	the 	Fifth 	and 	Fourteenth 	Amendments
were 	violated 	when 	the 	State 	withheld 	exculpatory 	information.
Second Am. Pet. at 5, 8.1 	The State argues that Johnson’s Second
Amended 	Petition 	should 	be 	dismissed 	because 	he 	cannot 	sustain 	a
claim 	for 	relief 	under 	28 	U.S.C. 	§ 	2254. 	Mem. 	Supp. 	Mot. 	to
1 Page numbers reflect the pagination generated by the Court’s
Electronic Filing System (“ECF”).
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Dismiss 	(“State’s 	Mem.”) 	3, 	8, 	ECF 	No. 	21. 	The 	Court 	has
determined 	that 	no 	hearing 	is 	necessary.2 	For 	the 	reasons 	that
follow, the State’s Motion to Dismiss is GRANTED and the Petition
is DISMISSED.
I. 	Background and Travel
On 	the 	night 	of 	January 	28, 	2014, 	three 	people 	— 	a 	tall,
muscular, 	black-skinned 	man; 	an 	approximately 	ten-year-old 	boy;
and 	a 	third 	person 	whose 	face 	was 	not 	visible 	— 	entered 	Mary
Celletti’s home and robbed her at gunpoint. 	State v. Johnson, 199
A.3d 1046, 1048–49 (R.I. 2019). 	At trial, Celletti testified that
the tall man was wearing dark gray glasses, which had tape on one
side holding the arm to the frame; a blue jacket and scarf, which
he took off; and a hood, which he pulled down, uncovering his head.
Id. 	at 	1049. 	Celletti 	subsequently 	identified 	the 	tall 	man 	as
Johnson. 	Id. at 1050.
Upon 	entering 	the 	home, 	the 	tall 	man 	told 	Celletti 	and 	the
boy to sit and handed the boy the gun. 	Id. at 1049. 	The boy held
the gun on Celletti while the other two intruders carried out the
robbery. 	Id. 	Celletti 	testified 	that 	she 	talked 	with 	the 	boy,
trying 	to 	“humanize 	herself 	with 	him” 	and 	find 	out 	who 	he 	was.
2 “[W]hen the state-court record precludes habeas relief under
the limitations of § 2254(d), a district court is not required to
hold an evidentiary hearing.” 	Cullen v. Pinholster, 563 U.S. 170,
183 (2011) (internal quotation marks omitted); see also Jaynes v.
Mitchell, 824 F.3d 187, 197 n.2 (1st Cir. 2016).
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She 	learned 	his 	name 	and 	where 	he 	went 	to 	school. 	Id. 	She 	also
asked if he thought they were going to kill her. 	Id. 	Eventually
the three left, after taking a number of items from the home. 	Id.
As 	they 	left, 	the 	tall 	man 	wiped 	fingerprints 	from 	the 	gun 	and
told 	Celletti 	that 	if 	she 	called 	the 	police 	he 	would 	come 	back.
Id. 	After 	they 	left, 	Celletti 	called 	her 	daughter 	and 	told 	her
that 	she 	had 	just 	been 	robbed 	at 	gunpoint. 	Id. 	Celletti’s
daughter soon arrived, along with the police. 	Id.
Johnson 	was 	eventually 	arrested, 	indicted, 	and 	charged 	with
conspiracy 	to 	commit 	first-degree 	robbery 	(Count 	One), 	first-
degree 	robbery 	(Count 	Two), 	contributing 	to 	the 	delinquency 	of 	a
minor 	(Count 	Three),3 	and 	assault 	with 	a 	dangerous 	weapon 	in 	a
dwelling with intent to commit robbery (Count Four). 	Id. at 1048,
1048 	n.2. 	Following 	a 	four-day 	trial 	in 	January 	of 	2017 	in
Providence County Superior Court, a jury convicted Johnson of all
counts. 	Id. at 1048, 1050. 	The trial justice imposed a sentence
of 	twenty-five 	years’ 	imprisonment, 	twelve 	years 	to 	serve, 	the
balance 	suspended 	with 	probation, 	on 	Johnson’s 	first-degree
robbery and assault with a firearm convictions. 	Id. at 1050. 	The
court originally sentenced Johnson to twenty years’ imprisonment,
with 	ten 	years 	to 	serve 	and 	ten 	suspended 	with 	probation, 	on 	the
3 	The State dismissed Count Three after trial when it realized
that 	the 	Family 	Court 	had 	exclusive 	jurisdiction 	over 	charges
brought pursuant to R.I. Gen. Laws § 11-9-4. 	Johnson, 199 A.3d at
1048 n.2.
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conspiracy 	conviction. 	Id. 	However, 	the 	court 	subsequently 	sua
sponte 	modified 	the 	sentence 	to 	ten 	years’ 	imprisonment 	with 	ten
to serve. 	Id. 	All sentences were to run concurrently. 	Id.
Johnson 	had 	filed 	a 	motion 	for 	judgment 	of 	acquittal 	at 	the
close 	of 	the 	State’s 	evidence, 	which 	was 	denied, 	and 	again 	prior
to 	closing 	arguments 	and 	jury 	instructions. 	Id. 	The 	court
reserved 	decision 	on 	the 	latter 	motion. 	Id. 	After 	the 	jury
returned 	guilty 	verdicts 	on 	all 	counts, 	the 	trial 	justice 	denied
the renewed motion for judgment of acquittal as well as Johnson’s
motion for a new trial. 	Id.
Prior to the entry of final judgment, Johnson filed a notice
of appeal, but he did not file another notice of appeal after the
trial 	justice 	corrected 	the 	sentence 	imposed 	for 	the 	conspiracy
conviction. 	Id. 	Johnson then petitioned for a writ of certiorari,
which the Rhode Island Supreme Court granted, for direct review of
his 	convictions 	and 	denial 	of 	his 	motion 	for 	a 	new 	trial. 	Id.
Johnson 	challenged 	the 	denial 	of 	the 	motion 	for 	a 	new 	trial,
arguing 	that 	the 	verdict 	was 	against 	the 	weight 	of 	the 	evidence.
Id. 	at 	1051. 	Specifically, 	he 	argued 	that 	the 	complaining
witness’s 	identification 	of 	him 	should 	have 	been 	given 	little
weight. 	Id. 	Johnson 	also 	contended 	that 	the 	weight 	of 	the
evidence did not indicate that an operable firearm was used in the
incident. 	Id. 	The R.I. Supreme Court rejected both arguments and
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affirmed Johnson’s judgment of conviction. 	Id. at 1053. 	Johnson
did not seek further review.
Next, Johnson filed an application for post-conviction relief
in 	the 	trial 	court. 	See 	Post-Conv. 	Decision, 	ECF 	No. 	19-2.
Johnson’s initial application, filed pro se, asserted five grounds
for 	relief: 	(1) 	newly 	discovered 	evidence; 	(2) 	civil 	rights
violations; 	(3) 	malicious 	prosecution; 	(4) 	prosecutorial
misconduct; and (5) due process violations. 	Id. at 2–3. 	Following
the 	appointment 	of 	counsel 	(“post-conviction 	counsel”), 	Johnson
filed 	an 	amended 	application, 	which 	narrowed 	the 	grounds 	to 	two:
(1) 	ineffective 	assistance 	of 	trial 	counsel; 	and 	(2) 	due 	process
violations. 	Id. at 3. 	The court held an evidentiary hearing and,
after 	considering 	the 	hearing 	testimony 	and 	the 	parties’ 	post-
hearing 	submissions, 	denied 	Johnson’s 	amended 	post-conviction
application. 	Id. 	at 	3, 	22. 	Johnson 	filed 	a 	petition 	for 	a 	writ
of certiorari in the R. I. Supreme Court, but the court denied the
petition. 	Sup. Ct. Order, ECF No. 19-3.
Johnson then timely filed the instant Petition. 	His original
petition contained both exhausted and unexhausted claims. 	See May
6, 2022, Text Order. 	Therefore, pursuant to Rhines v. Weber, 544
U.S. 	269 	(2005), 	and 	Sena 	v. 	Kenneway, 	997 	F.3d 	378 	(1st 	Cir.
2021), the Court gave Johnson the option to amend his petition to
include only exhausted claims, file a motion to stay the case until
all 	of 	his 	claims 	had 	been 	exhausted, 	or 	request 	that 	the 	Court
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dismiss the petition without prejudice to allow him to present his
unexhausted 	claims 	to 	the 	state 	courts. 	Id. 	In 	addition, 	the
Court 	appointed 	counsel 	for 	the 	limited 	purpose 	of 	assisting
Johnson in reaching this decision and making the relevant filing.
Id. 	Johnson chose the first option and, through appointed counsel,
filed the instant Second Amended Petition. 	In response, the State
filed the Motion to Dismiss.
II. 	Standard of Review
A. 	Habeas Standard
The 	Antiterrorism 	and 	Effective 	Death 	Penalty 	Act 	of 	1996
(“AEDPA”) 	limits 	this 	Court’s 	review 	of 	state 	convictions 	and
sentences. 	Carpio 	v. 	Wall, 	269 	F. 	Supp. 	3d 	4, 	6 	(D.R.I. 	2017).
Thus, 	habeas 	corpus 	relief 	serves 	as 	a 	“guard 	against 	extreme
malfunctions in the state criminal justice systems not a substitute
for 	ordinary 	error 	correction 	through 	appeal.” 	Id. 	(internal
quotation marks omitted) (quoting Harrington v. Richter, 562 U.S.
86, 102-03 (2011)).
When 	a 	state 	court 	has 	adjudicated 	a 	claim 	on 	the 	merits, 	a
federal 	court 	may 	grant 	habeas 	corpus 	relief 	only 	if 	the 	state
court’s adjudication of the claim:
(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
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(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.
28 	U.S.C. 	§ 	2254(d). 	“[A]n 	unreasonable 	application 	of 	federal
law 	is 	different 	from 	an 	incorrect 	application 	of 	federal 	law.”
Carpio, 269 F. Supp. 3d at 9 (quoting Williams v. Taylor, 529 U.S.
362, 	410 	(2000)) 	(alteration 	in 	original). 	An 	incorrect
application 	is 	“contrary 	to 	clearly 	established 	law 	if 	the 	state
court applies a rule that contradicts the governing law set forth
by 	the 	Supreme 	Court 	or 	confronts 	a 	set 	of 	facts 	that 	are
materially 	indistinguishable 	from 	a 	decision 	of 	[the 	Supreme
Court] 	and 	nevertheless 	arrives 	at 	a 	result 	different 	from 	[its]
precedent.” 	Hensley 	v. 	Roden, 	755 	F.3d 	724, 	731 	(1st 	Cir. 	2014)
(alterations in original) (internal quotation marks omitted). 	An
unreasonable application occurs “if the state court identifies the
correct 	governing 	legal 	principle 	from 	the 	Supreme 	Court's 	then-
current 	decisions 	but 	unreasonably 	applies 	that 	principle 	to 	the
facts 	of 	the 	prisoner’s 	case.” 	Id. 	(internal 	quotation 	marks
omitted) (quoting Abrante v. St. Amand, 595 F.3d 11, 15 (1st Cir.
2010)). 	Pursuant 	to 	§ 	2254(d), 	“a 	habeas 	court 	must 	determine
what 	arguments 	or 	theories 	supported 	. 	. 	. 	the 	state 	court's
decision; 	and 	then 	it 	must 	ask 	whether 	it 	is 	possible 	fairminded
jurists 	could 	disagree 	that 	those 	arguments 	or 	theories 	are
inconsistent 	with 	the 	holding 	in 	a 	prior 	decision 	of 	the 	[U.S.
Supreme] Court.” 	DeCiantis v. Wall, 868 F. Supp. 2d 1, 5 (D.R.I.
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2012) 	(alterations 	in 	original)(quoting 	Wetzel 	v. 	Lambert, 	565
U.S. 	520, 	523 	(2012)), 	aff’d, 	722 	F.3d 	41 	(1st 	Cir. 	2013); 	see
also 	Norton 	v. 	Spencer, 	351 	F.3d 	1, 	8 	(1st 	Cir. 	2003) 	(“If 	it 	is
a close question whether the state decision is in error, then the
state 	decision 	cannot 	be 	an 	unreasonable 	application.” 	(quoting
McCambridge 	v. 	Hall, 	303 	F.3d 	24, 	36 	(1st 	Cir. 	2002))). 	“The
upshot 	of 	the 	AEDPA 	habeas 	regime 	is 	that 	‘when 	the 	last 	state
court 	to 	decide 	a 	prisoner’s 	federal 	claim 	explains 	its 	decision
on the merits in a reasoned opinion’ . . . ‘a federal habeas court
simply 	reviews 	the 	specific 	reasons 	given 	by 	the 	state 	court 	and
defers to those reasons if they are reasonable.’” 	Porter v. Coyne-
Fague, 35 F.4th 68, 75 (1st Cir. 2022) (quoting Wilson v. Sellers,
138 	S. 	Ct. 	1188, 	1192 	(2018)).4 	“‘[E]valuating 	whether 	a 	rule
application 	was 	unreasonable 	requires 	considering 	the 	rule’s
specificity,’ 	such 	that 	‘[t]he 	more 	general 	the 	rule, 	the 	more
leeway 	courts 	have 	in 	reaching 	outcomes 	in 	case-by-case
determinations.’” 	Id. 	(quoting 	Yarborough 	v. 	Alvarado, 	541 	U.S.
652, 	664 	(2004)). 	However, 	“[t]he 	Supreme 	Court 	has 	recognized
that 	‘even 	a 	general 	standard 	may 	be 	applied 	in 	an 	unreasonable
4 	Here, 	the 	last 	state 	court 	to 	decide 	Johnson’s 	post-
conviction 	application 	and 	“explain[] 	its 	decision 	on 	the 	merits
in a reasoned opinion . . . ,” Porter v. Coyne-Fague, 35 F.4th 68,
75 	(1st 	Cir. 	2022), 	is 	the 	Rhode 	Island 	Superior 	Court, 	because
the R.I. Supreme Court’s order denying certiorari did not address
the merits of the claims.
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manner.’” 	Bebo 	v. 	Medeiros, 	906 	F.3d 	129, 	134 	(1st 	Cir. 	2018)
(quoting Panetti v. Quarterman, 551 U.S. 930, 953 (2007)).
The 	second 	scenario 	justifying 	habeas 	relief 	is 	if 	the
state 	court 	adjudication 	led 	to 	“a 	decision 	that 	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). 	Though this means
that 	a 	federal 	court 	will 	be 	taking 	a 	closer 	look 	at 	a
state 	court’s 	findings 	of 	fact, 	the 	fundamental
principle of deference to those findings still applies.
Hensley, 755 F.3d at 731. 	“Factual determinations by state courts
are 	presumed 	correct 	absent 	clear 	and 	convincing 	evidence 	to 	the
contrary, 	§ 	2254(e)(1), 	and 	a 	decision 	adjudicated 	on 	the 	merits
in a state court and based on a factual determination will not be
overturned 	on 	factual 	grounds 	unless 	objectively 	unreasonable 	in
light 	of 	the 	evidence 	presented 	in 	the 	state-court 	proceeding, 	§
2254(d)(2).”5 	Miller-El 	v. 	Cockrell, 	537 	U.S. 	322, 	340 	(2003).
“This 	demanding 	showing 	cannot 	be 	made 	when 	‘[r]easonable 	minds
reviewing the record might disagree’ about the finding in question.
. 	. 	. 	That 	said, 	‘[e]ven 	in 	the 	context 	of 	federal 	habeas,
5 In Miller-El v. Cockrell, the Supreme Court clarified that:
AEDPA 	does 	not 	require 	petitioner 	to 	prove 	that 	a
decision 	is 	objectively 	unreasonable 	by 	clear 	and
convincing evidence. 	The clear and convincing standard
is 	found 	in 	§ 	2254(e)(1), 	but 	that 	subsection 	pertains
only 	to 	state-court 	determination 	of 	factual 	issues,
rather 	than 	decisions. 	Subsection 	(d)(2) 	contains 	the
unreasonable requirement and applies to the granting of
habeas relief rather than to the granting of a COA.
537 U.S. 322, 341-42 (2003).
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deference 	does 	not 	imply 	abandonment 	or 	abdication 	of 	judicial
review.’” 	Porter, 35 F.4th at 75 (quoting Brumfield v. Cain, 576
U.S. 305, 314 (2015)).
B. 	Ineffective Assistance of Counsel Standard
The standard for analyzing a claim of ineffective assistance
of 	counsel 	stems 	from 	Strickland 	v. 	Washington, 	466 	U.S. 	668
(1984), 	which 	provides 	a 	two-pronged 	test 	for 	evaluating 	such
claims. 	Kholi 	v. 	Wall, 	CA 	No. 	14-307-JJM, 	2015 	WL 	567148 	at 	*4
(D.R.I. 	Feb. 	10, 	2015). 	Under 	the 	“performance 	prong” 	of 	the
Strickland 	test, 	Johnson 	must 	show 	his 	“counsel 	made 	errors 	so
serious 	that 	counsel 	was 	not 	functioning 	as 	the 	‘counsel’
guaranteed the defendant by the Sixth Amendment.” 	Strickland, 466
U.S. at 687. 	Under the “prejudice prong,” Johnson must show that
“the 	deficient 	performance 	prejudiced 	the 	defense.” 	Id. 	“The
benchmark for judging any claim of ineffectiveness must be whether
counsel’s 	conduct 	so 	undermined 	the 	proper 	functioning 	of 	the
adversarial 	process 	that 	the 	trial 	cannot 	be 	relied 	on 	as 	having
produced a just result.” 	Id. at 686.
Strickland 	instructs 	that 	“[j]udicial 	scrutiny 	of 	counsel’s
performance 	must 	be 	highly 	deferential 	. 	. 	. 	.” 	Id. 	at 	689; 	see
also id. (“It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsel’s defense after it
has 	proved 	unsuccessful, 	to 	conclude 	that 	a 	particular 	act 	or
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omission of counsel was unreasonable.”). 	In considering the claim,
the “court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance;
that 	is, 	the 	defendant 	must 	overcome 	the 	presumption 	that, 	under
the circumstances, the challenged action might be considered sound
trial 	strategy.” 	Id. 	(internal 	quotation 	marks 	omitted).
Moreover, 	“[a]n 	error 	by 	counsel, 	even 	if 	professionally
unreasonable, 	does 	not 	warrant 	setting 	aside 	the 	judgment 	of 	a
criminal 	proceeding 	if 	the 	error 	had 	no 	effect 	on 	the 	judgment.”
Id. at 691. 	Finally, “[a] fair assessment of attorney performance
requires 	that 	every 	effort 	be 	made 	to 	eliminate 	the 	distorting
effects 	of 	hindsight, 	to 	reconstruct 	the 	circumstances 	of
counsel’s 	challenged 	conduct, 	and 	to 	evaluate 	the 	conduct 	from
counsel’s perspective at the time.” 	Id. at 689.
When evaluating ineffective assistance of counsel claims, the
Rhode 	Island 	Supreme 	Court 	employs 	a 	standard 	“identical 	to 	the
one 	set 	forth 	by 	the 	Supreme 	Court 	of 	the 	United 	States 	in
Strickland 	v. 	Washington.” 	Tassone 	v. 	State, 	42 	A.3d 	1277, 	1284
(R.I. 2012); see also Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987)
(summarizing Strickland standard).
III. Discussion
In 	his 	Second 	Amended 	Petition 	Johnson 	alleges 	that 	he
received ineffective assistance of counsel based on the failure of
trial counsel, James T. McCormick, Esq. (“trial counsel”), (1) to
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interview 	the 	complaining 	witness, 	Mary 	Celletti, 	or 	have 	an
investigator speak with her; and (2) to file a motion to suppress
her identification of Johnson, as it was impermissibly suggestive
and 	unreliable. 	Second 	Am. 	Pet. 	at 	5. 	Specifically, 	he 	alleges
that:
[T]he 	Rhode 	Island 	Department 	of 	Attorney 	General
disclosed 	to 	the 	complaining 	witness 	that 	Jody 	Johnson
was 	the 	suspect. 	This 	disclosure 	occurred 	after 	the
complaining 	witness 	had 	failed 	to 	select 	Mr. 	Johnson
from 	a 	photo 	array. 	Furthermore, 	the 	witness 	provided
a 	limited 	physical 	description 	of 	her 	assailant 	and
there 	was 	no 	physical 	evidence 	linking 	Mr. 	Johnson 	to
the crime.
Id.
Johnson 	also 	alleges 	that 	the 	State 	withheld 	exculpatory
material 	in 	violation 	of 	Brady 	v. 	Maryland, 	373 	U.S. 	83 	(1963),
and his right to due process guaranteed by the Fifth and Fourteenth
Amendments. 	Second 	Am. 	Pet. 	at 	7. 	Johnson 	argues 	that 	Celletti
learned Johnson was the suspect from the Attorney General’s office
and that this information was not disclosed to trial counsel before
the trial commenced. 	Id.
The 	State 	responds 	that, 	although 	Johnson 	has 	set 	forth
federal claims in the Second Amended Petition, “he does not address
the Superior Court’s Decision in any way or suggest how or why he
believes 	the 	[d]ecision 	is 	contrary 	to, 	or 	constitutes 	an
unreasonable 	application 	of, 	clearly 	established 	federal 	law, 	or
how 	it 	is 	based 	on 	an 	unreasonable 	determination 	of 	the 	facts.”
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State’s 	Mem. 	at 	11. 	Therefore, 	in 	the 	State’s 	view, 	“Johnson
cannot sustain his claims for federal habeas relief.” 	Id.
A. 	Ineffective Assistance of Counsel
The 	post-conviction 	court 	found 	that 	Johnson 	had 	failed 	to
prove 	that 	he 	received 	ineffective 	assistance 	of 	counsel. 	Post-
Conv. 	Decision 	at 	17. 	Thus, 	the 	question 	the 	Court 	must 	answer
is: 	“Was 	the 	[R.I. 	Superior] 	Court’s 	decision 	. 	. 	. 	so 	lacking
in 	justification 	that 	there 	was 	an 	error 	well 	understood 	and
comprehended in existing law beyond any possibility of fairminded
disagreement?” 	White 	v. 	Wheeler, 	577 	U.S. 	73, 	78-79 	(2015)
(internal quotation marks omitted); see also Harrington, 562 U.S.
at 	101 	(“A 	state 	court’s 	determination 	that 	a 	claim 	lacks 	merit
precludes 	federal 	habeas 	relief 	so 	long 	as 	‘fairminded 	jurists
could disagree’ on the correctness of the state court’s decision.”)
As 	stated 	above, 	in 	deciding 	Johnson’s 	habeas 	petition, 	the
role of this Court is limited to deciding whether the state court’s
application 	of 	the 	Strickland 	standard 	was 	“contrary 	to, 	or
involved 	an 	unreasonable 	application 	of, 	clearly 	established
Federal 	law, 	as 	determined 	by 	the 	Supreme 	Court,” 	28 	U.S.C. 	§
2254(d)(1), or was “based on an unreasonable determination of the
facts 	in 	light 	of 	the 	evidence 	presented 	in 	the 	State 	court
proceeding,” 	id. 	§ 	2254(d)(2). 	This 	is 	not 	the 	same 	question 	as
deciding 	whether 	counsel’s 	performance 	fell 	below 	the 	Strickland
standard. 	See Harrington, 562 U.S. at 101 (“The pivotal question
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is whether the state court’s application of the Strickland standard
was 	unreasonable. 	This 	is 	different 	from 	asking 	whether 	defense
counsel’s 	performance 	fell 	below 	Strickland’s 	standard.”); 	see
also 	id. 	at 	105 	(“When 	§ 	2254(d) 	applies, 	the 	question 	is 	not
whether counsel’s actions were reasonable. 	The question is whether
there 	is 	any 	reasonable 	argument 	that 	counsel 	satisfied
Strickland’s 	deferential 	standard.”); 	Field 	v. 	Hallett, 	37 	F.4th
8, 17 (1st Cir. 2022) (noting federal courts’ “limited leeway under
AEDPA, 	and 	even 	less 	when 	it 	comes 	to 	ineffective 	assistance
claims” in state habeas cases); Civitarese v. Goguen, 410 F. Supp.
3d 303, 318 (D. Mass. 2019) (“The Strickland standard is a general
one, 	so 	the 	range 	of 	reasonable 	applications 	is 	substantial.
Federal 	habeas 	courts 	must 	guard 	against 	the 	danger 	of 	equating
unreasonableness 	under 	Strickland 	with 	unreasonableness 	under 	§
2254(d).”).
“The 	Supreme 	Court 	has 	found 	an 	ineffective 	assistance 	of
counsel 	claim 	to 	be 	a 	mixed 	question 	of 	law 	and 	fact 	and 	is 	thus
to 	be 	evaluated 	under 	the 	unreasonable 	application 	clause 	of 	28
U.S.C. § 2254.” 	Field, 37 F.4th at 16 n.1 (citing Yeboah-Sefah v.
Ficco, 556 F.3d 53, 70 (1st Cir. 2009)); see also Teti v. Bender,
507 F.3d 50, 57 (1st Cir. 2007).
Here, the state court held an evidentiary hearing on Johnson’s
post-conviction 	application 	on 	January 	6, 	2020, 	at 	which 	the
complaining witness, trial counsel, the prosecuting attorney, and
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criminal 	defense 	attorney 	Scott 	Lutes, 	Esq.,6 	testified. 	Post-
Conv. 	Decision 	at 	3, 	5–6; 	Tr. 	of 	Jan. 	6, 	2020, 	Evidentiary 	Hr’g
(“Hr’g. Tr.”) 1, 9–10, 36, ECF No. 21-2. 	According to the court:
Attorney 	McCormick 	testified 	that 	he 	ha[d] 	been
practicing civil and criminal law in Rhode Island for 38
years. 	He 	began 	handling 	criminal 	matters 	ten 	years
into 	his 	practice 	and 	so 	for 	the 	last 	28 	years,
approximately 	50% 	of 	his 	practice 	consisted 	of
litigating criminal cases. 	Attorney McCormick testified
that he has tried an estimated 280 criminal cases and is
familiar with the concept of suggestive identification.
In 	fact, 	Attorney 	McCormick 	testified 	to 	his 	in-depth
knowledge 	of 	suggestive 	identification 	after 	having
briefed 	the 	issue 	in 	a 	separate 	case 	before 	[the 	R.I.]
Supreme Court.
Attorney 	McCormick 	obtained 	discovery 	from 	the
State 	which 	included 	the 	police 	reports 	and 	the 	photo
array 	that 	was 	shown 	to 	the 	complaining 	witness, 	Ms.
Celletti. 	Attorney 	McCormick 	also 	received 	the 	grand
jury transcript which included Ms. Celletti’s testimony
on 	how 	she 	came 	to 	know 	the 	name 	of 	the 	defendant.
During 	the 	period 	of 	discovery 	and 	until 	the 	day 	of
trial, Attorney McCormick was under the impression that
Ms. 	Celletti 	came 	to 	know 	the 	suspect’s 	name 	through 	a
disclosure 	from 	an 	unnamed 	person 	who 	may 	have 	been 	a
clerk 	at 	Family 	Court. 	Before 	the 	trial, 	Attorney
McCormick 	made 	no 	further 	inquiries 	of 	the 	Attorney
General’s 	Office, 	the 	Family 	Court, 	or 	the 	complaining
witness, 	Ms. 	Celletti, 	as 	to 	how 	the 	name 	Jody 	Johnson
was suggested to her.
With 	regard 	to 	the 	defense’s 	strategy, 	Attorney
McCormick 	testified 	that 	his 	overall 	concern 	was 	the
suggestive 	nature 	of 	Ms. 	Celletti’s 	identification 	of
6 The post-conviction court allowed Attorney Lutes to testify
provisionally 	as 	an 	expert 	witness. 	Post-Conv. 	Decision 	at 	6;
Transcript 	of 	January 	6, 	2020. 	After 	hearing 	argument 	and
reviewing 	written 	memoranda 	from 	post-conviction 	counsel 	and 	the
State, the court decided not to consider the testimony of Attorney
Lutes 	in 	evaluating 	the 	amended 	post-conviction 	application 	and
denied 	Johnson’s 	motion 	to 	admit 	his 	expert’s 	testimony. 	Id. 	at
7.
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Mr. 	Johnson. 	Attorney 	McCormick 	explained 	his
understanding 	of 	the 	law 	regarding 	suggestive
identification. 	He 	indicated 	that 	a 	two-part 	analysis
was 	required: 	(1) 	is 	it 	a 	suggestive 	identification?;
and 	(2) 	despite 	it 	being 	suggestive, 	did 	the 	witness
have an adequate opportunity to observe the identity of
the 	assailant? [7] 	He 	opined 	that 	in 	an 	identification
case, 	filing 	a 	motion 	to 	suppress 	is 	appropriate
especially 	when 	there 	is 	no 	other 	evidence. 	However,
Attorney 	McCormick 	thought 	that 	Ms. 	Celletti 	had 	about
an 	hour 	to 	an 	hour 	and 	a 	half 	to 	observe 	the 	assailant
and saw his face up close with adequate lighting. 	Since
Attorney McCormick thought Ms. Celletti had an adequate
opportunity 	to 	observe 	the 	assailant, 	he 	decided 	there
was 	no 	point 	in 	filing 	a 	motion 	to 	suppress. 	Although
there 	was 	no 	physical 	or 	forensic 	evidence 	produced 	by
the State in this case, Attorney McCormick believed that
it 	would 	have 	been 	disadvantageous 	to 	file 	a 	motion 	to
suppress. 	He felt as though a motion to suppress would
have been futile, and therefore, decided not to file one
as 	it 	could 	potentially 	give 	Ms. 	Celletti 	a 	“dress
rehearsal” on the types of questions Attorney McCormick
would 	be 	asking 	her 	as 	a 	witness 	at 	trial. 	Attorney
McCormick was also of the opinion that one of the reasons
the 	case 	was 	defensible 	was 	that 	a 	second 	proposed
witness 	against 	Mr. 	Johnson, 	the 	alleged 	juvenile
participant, who identified Mr. Johnson as a participant
in 	the 	robbery 	in 	his 	testimony 	to 	the 	grand 	jury, 	was
unavailable 	to 	testify 	at 	the 	trial. 	The 	State 	could
not 	find 	the 	juvenile 	witness 	prior 	to 	the 	trial, 	and
therefore, 	Attorney 	McCormick 	thought 	it 	was
strategically important not to give the State more time
to find the witness against his client.
Rather 	than 	file 	a 	motion 	to 	suppress, 	Attorney
McCormick’s 	preferred 	strategy 	was 	to 	present 	evidence
7 See State v. Gallup, 89 A.3d 795, 801 (R.I. 2014) (explaining
analysis); see also State v. Texter, 923 A.2d 568, 574 (R.I. 2007)
(listing 	factors 	to 	be 	considered 	in 	assessing 	reliability 	of
identification, 	including: 	(1) 	the 	witness’s 	opportunity 	to
observe 	the 	perpetrator 	during 	the 	commission 	of 	the 	crime; 	(2)
the 	level 	of 	attention 	the 	witness 	paid 	to 	the 	perpetrator; 	(3)
the accuracy of the witness’s description of the perpetrator; (4)
the 	witness’s 	degree 	of 	confidence 	in 	the 	identification 	at 	the
time of confrontation; and (5) the length of time elapsed between
commission of the crime and the confrontation).
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of 	the 	suggestive 	identification 	in 	order 	to 	persuade
the jury to give Ms. Celletti’s testimony less weight as
well as to attack the credibility of her identification.
Attorney McCormick considered Ms. Celletti’s failure to
pick 	Mr. 	Johnson’s 	photo 	out 	of 	a 	photo 	array 	which
included 	a 	picture 	of 	Mr. 	Johnson 	prior 	to 	her 	hearing
the 	assailant’s 	name 	from 	the 	unnamed 	person 	at 	Family
Court or the Attorney General’s office to be helpful to
the 	defendant 	and 	felt 	he 	should 	emphasize 	those 	facts
to the jury. 	The suggestive nature of the conversation
identifying 	Mr. 	Johnson 	as 	a 	suspect 	in 	this 	case 	was
pointed 	out 	by 	the 	defense 	not 	only 	to 	attack 	Ms.
Celletti’s 	credibility, 	but 	also 	to 	highlight 	to 	the
jury 	that 	Ms. 	Celletti 	would 	be 	predisposed 	to
identifying 	whomever 	she 	saw 	on 	Facebook 	as 	the 	person
who robbed her. 	Consequently, Attorney McCormick chose
not 	to 	file 	a 	motion 	to 	suppress 	Ms. 	Celletti’s
identification 	of 	Mr. 	Johnson 	in 	favor 	of 	the 	strategy
outlined above.
Next 	to 	testify 	was 	former 	Special 	Attorney
General, 	Attorney 	Ryan 	Stys 	(Attorney 	Stys). 	Attorney
Stys worked as a prosecutor in the Office of the Attorney
General 	for 	the 	State 	of 	Rhode 	Island 	for 	five 	years.
Attorney 	Stys 	was 	one 	of 	the 	prosecuting 	attorneys 	in
this 	matter. 	Attorney 	Stys 	handled 	the 	case 	from 	some
point 	after 	the 	grand 	jury 	indictment, 	working 	on 	both
the 	pre-trial 	and 	trial 	stages. 	Prior 	to 	the 	trial,
Attorney 	Stys 	reviewed 	the 	grand 	jury 	transcript,
reviewed 	the 	discovery, 	and 	met 	with 	Ms. 	Celletti.
However, 	Attorney 	Stys 	admitted 	at 	the 	evidentiary
hearing 	that 	he 	was 	unable 	to 	fully 	recall 	how 	Ms.
Celletti 	originally 	came 	to 	identify 	Mr. 	Johnson.
Attorney 	Stys 	recalled 	that 	Ms. 	Celletti 	came 	to 	learn
that 	Mr. 	Johnson 	was 	a 	suspect, 	either 	through 	the
juvenile 	proceedings 	at 	Family 	Court 	or 	through 	a
telephone 	conversation 	with 	an 	unnamed 	individual 	from
the 	Attorney 	General’s 	office. 	Attorney 	Stys 	did 	not
remember 	discussing 	with 	Ms. 	Celletti 	how 	she 	came 	to
identify Jody Johnson prior to the trial.
Post-Conv. Decision at 3-6 (footnote added) (citations omitted).
Although 	Celletti 	testified 	at 	the 	post-conviction 	hearing,
Hr’g. 	Tr. 	at 	1-9, 	the 	hearing 	justice 	does 	not 	summarize 	her
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testimony. 	Therefore, 	the 	Court 	relies 	on 	the 	transcript 	of 	the
January 	6, 	2020, 	hearing. 	Celletti 	testified, 	in 	relevant 	part,
as follows:
Q 	And thinking back to this time, do you remember the
first time that you learned the name Jody Johnson?
A 	Yes.
Q 	And in what context did you learn that name?
A 	I 	believe 	-- 	I 	think 	it 	was 	during 	a 	phone
conversation with the Attorney General’s Office.
Q 	Do 	you 	remember 	who 	initiated 	that 	conversation;
did you call them or did they call you?
A 	I don’t remember.
Q 	And do you know who you spoke to?
A 	All I know is female.
Q 	. 	. 	. 	Do 	you 	recall 	why 	you 	came 	to 	call 	the
Attorney General’s Office or they came to call you?
A 	It was regarding one of the other people that robbed
my house.
Q 	Were you calling to check in on the status of that
person’s case?
A 	Yes --
Q 	And --
A 	-- or I had gotten a letter. 	I’m not sure because
I 	had 	-- 	they 	called 	me 	or 	I 	had 	gotten 	a 	letter 	about
the other kid, the minor.
Q 	Okay. 	And 	do 	you 	remember, 	you 	when 	you 	spoke 	to
the 	female 	at 	the 	Attorney 	General’s 	Office, 	do 	you
remember if you asked her, Are there any other suspects?
Are there any other names?
A 	No.
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Q 	And 	what 	do 	you 	recall 	about 	why 	she 	told 	you 	a
name 	or 	in 	what 	context 	she 	gave 	you 	the 	name 	Jody
Johnson?
A 	I 	believe 	it 	was, 	I 	said 	something 	to 	the 	effect
of, 	I 	wish 	they 	could 	find 	the 	adult 	as 	quick 	as 	they
found the kid.
Q 	Ok, 	so 	you 	may 	have 	said 	something 	like 	that 	to
her, and what was her response, if you remember?
A 	I don’t recall if she said we know who it is because
at 	that 	point 	they 	hadn’t 	arrested 	him, 	but 	the 	name,
she did say Jody Johnson.
Q 	Prior 	to 	hearing 	that 	name, 	did 	you 	know 	anyone
named Jody Johnson?
A 	No.
Q 	And 	prior 	to 	trial, 	did 	you 	ever 	speak 	to 	Jim
McCormick, who was Mr. Johnson’s attorney?
A 	I don’t remember.
Q 	To your recollection, did an investigator from the
defense ever come to speak to you?
THE WITNESS: 	What do you mean, the defense?
MS. NEE: 	Like --
A 	The police department. 	The detectives came out.
Q 	And 	you 	never 	had 	a 	private 	investigator 	who
identified 	themselves 	as 	being 	for 	the 	defendant 	come
talk to you?
A 	Not that I recall.
Q 	And 	you 	don’t 	have 	any 	memory 	of 	speaking 	to 	Jim
McCormick?
A 	Just now in the -- out there, I said hi.
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Q 	And 	after 	you 	learned 	the 	name 	Jody 	Johnson 	from
the Attorney General’s office, what did you do?
A 	I went on Facebook.
Q 	And that’s when you identified a picture, correct?
A 	Well, I had previously been on Facebook but, yeah.
Q 	And what had you previously been doing on Facebook?
A 	Going 	through 	every 	one 	of 	my 	kids, 	especially 	my
son, 	because 	I 	have 	a 	son, 	their 	friends’ 	Facebook 	to
see 	if 	I 	could 	spot 	Jody 	anywhere. 	I 	went 	through
different profiles to see if I could find him, his face
on anybody that I knew or I was associated with or that
knew 	me 	or 	might 	know 	my 	kids 	because 	it 	was 	pretty
distinctive. 	He was standing a foot from me.
Q 	And 	fair 	to 	say 	your 	Facebook 	research, 	prior 	to
learning 	the 	name 	Jody 	Johnson, 	you 	did 	not 	find 	a
picture of anyone you thought --
A 	No.
. . .
Q 	. . . 	Did you ever remember having a conversation
with 	Mr. 	Stys 	about 	how 	you 	learned 	the 	name 	Jody
Johnson?
THE WITNESS: 	Mr. Stys?
MS. NEE: 	Ryan Stys, the prosecutor.
A 	I don’t remember, but I’m sure I did.
Q 	Do you remember when that conversation was?
A 	No.
Q 	Do 	you 	remember 	when 	-- 	after 	you 	found 	a 	picture
on Facebook, you called Detective Cute, correct?
A 	Yes.
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Q 	And 	do 	you 	remember 	when 	Detective 	Cute 	came 	to
your home after that?
A 	I was reminded of that today.
Q 	So you don’t have any?
A 	I 	didn’t 	remember 	it 	until 	it 	was 	brought 	up, 	and
then I do remember it.
Q 	So now that I reminded you of that, do you actually
remember that?
A 	He 	came 	in 	and 	took 	a 	picture 	of 	my 	computer 	with
Jody’s profile pulled up.
Q 	Do you recall when Detective Cute was in your home
that day, you had a conversation with him as to how you
learned the name Jody Johnson?
A 	I don’t recall the whole conversation, but I’m sure
I 	said 	to 	him 	through 	the 	Attorney 	General, 	and 	that’s
how I found out.
Q 	Do you remember that?
A 	No.
Q 	You just assumed you told him that?
A 	I called him a lot. 	I called him daily.
. . .
Q 	So at what point were you talking to him daily?
A 	Before I found out who Jody was.
Q 	What was the purpose of those conversations?
A 	Have you found him? 	Are you looking for him? 	Did
you get the kid?
Q 	Besides Ryan Stys, the prosecutor, do you remember
speaking to anyone else in the Attorney General’s Office
to prepare for trial?
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A 	I think in the beginning there was a lady. 	I don’t
know 	if 	it 	was 	this 	guy 	took 	over 	for 	her, 	but 	I 	think
I spoke to a female.
Q 	And do you know if that was another attorney?
A 	Um-hum.
Q 	You believe it was?
A 	I think they changed attorneys or something between
the 	time 	it 	happened 	and 	the 	time 	it 	went 	to 	court. 	I
remember a female.
Q 	And do you remember telling anyone else affiliated
with 	the 	Attorney 	General’s 	Office, 	I 	called 	the
Attorney General’s Office, and someone gave me the name
Jody Johnson?
A 	No. [8]
8 The Rhode Island Supreme Court’s description of Celletti’s
trial testimony provides more detail regarding the identification:
Both 	Celletti 	and 	Det. 	Cute 	testified 	that, 	a 	few
days 	after 	the 	incident, 	the 	detective 	brought 	a
yearbook from the boy’s school over to Celletti’s house
and 	Celletti 	was 	able 	to 	identify 	the 	boy 	who 	had 	been
in her house the night of the incident. 	Both witnesses
also testified that, two weeks after the incident, Det.
Cute 	brought 	over 	a 	photo 	array 	which 	included
defendant’s 	photo, 	but 	Celletti 	was 	unable 	to 	identify
any 	of 	the 	men 	in 	the 	photographs 	as 	the 	man 	who 	had
entered her home on January 28.
Some 	months 	after 	being 	shown 	the 	photo 	array,
Celletti called the Attorney General’s office to inquire
about the legal proceedings involving the boy. 	After a
brief 	conversation 	— 	the 	substance 	of 	which 	is 	not 	on
the record — she used her daughter’s laptop computer to
search 	Facebook 	for 	the 	name 	“Jodi 	Johnson.” 	Celletti
thought this might have been the name of the third person
in her house on January 28 whom she had not seen but had
assumed was a woman based on the voice. 	After scrolling
through 	the 	various 	Jodi 	Johnsons 	who 	came 	up 	in 	the
Facebook 	search 	results, 	she 	looked 	at 	photos 	for
different spellings of “Jodi.” 	She testified that, “all
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Hrng. Tr. at 3-9 (footnote added). 	The State did not cross-examine
Celletti. 	Id. at 9.
Johnson 	argues 	that 	this 	identification 	was 	“impermissibly
suggestive 	and 	unreliable,” 	and 	that 	trial 	counsel 	should 	have
filed 	a 	motion 	to 	suppress 	it. 	Second 	Am. 	Pet. 	at 	6. 	Johnson
also asserts that trial counsel should have interviewed Celletti,
or 	had 	an 	investigator 	speak 	with 	her, 	regarding 	the
identification. 	Id. 	By failing to do so, in Johnson’s view, trial
counsel was ineffective. 	Id.
Turning 	first 	to 	the 	issue 	of 	whether 	trial 	counsel 	should
have 	filed 	a 	motion 	to 	suppress 	Celletti’s 	identification 	of
Johnson, 	the 	post-conviction 	court 	stated: 	“At 	issue 	is 	whether
it was unreasonable for Attorney McCormick not to file a motion to
of 	a 	sudden 	[she] 	saw 	a 	picture 	that 	was 	very 	familiar
to 	[her], 	but 	it 	wasn’t 	a 	female, 	it 	was 	a 	male.”
Celletti testified that, based on the eyes and the large
head, “he looked like the man who came into [her] house
with 	a 	gun.” 	Celletti 	clicked 	on 	the 	photo, 	which
brought 	her 	to 	that 	man’s 	Facebook 	profile 	page.
Celletti 	scrolled 	through 	several 	photos 	of 	this 	“Jody
Johnson,” including one in which he was wearing glasses
with tape on the corner. 	When Celletti saw that picture,
she 	was 	“a 	hundred 	percent” 	certain 	this 	photo 	was 	of
the 	man 	who 	had 	entered 	her 	house 	on 	January 	28.
Celletti called Det. Cute, who testified that he went to
her 	house, 	watched 	her 	repeat 	the 	search 	sequence 	she
had performed on Facebook, and, using his own cell phone
camera, took photos of the images on her computer screen.
Celletti identified defendant as the man who entered her
home and pointed a gun at her face.
Johnson, 199 A.3d at 1049-50 (alterations in original).
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suppress the identifications of Mr. Johnson by Ms. Celletti as the
person 	who 	robbed 	and 	assaulted 	her 	at 	her 	home 	on 	January 	28,
2014.” 	Post-Conv. 	Decision 	10. 	Johnson 	argues 	that 	it 	was
unreasonable. 	The 	post-conviction 	court 	disagreed, 	concluding
that 	trial 	counsel’s 	performance 	was 	not 	constitutionally
deficient. 	Id. at 12, 17.
The 	Court 	initially 	observes 	that 	the 	post-conviction 	court
correctly stated established federal law, specifically Strickland,
in 	reaching 	its 	decision. 	See 	id. 	at 	7-9, 	12, 	15-16. 	Further,
the 	post-conviction 	court 	did 	not 	unreasonably 	apply 	Strickland.
The 	post-conviction 	court 	noted 	that 	trial 	counsel 	“weighed 	the
merits of filing a motion to suppress, especially since there was
no 	other 	evidence 	available 	to 	the 	State 	in 	this 	case.” 	Id. 	at
10. 	The state court continued:
His 	principal 	reason 	for 	not 	filing 	the 	motion 	to
suppress 	was 	based 	upon 	his 	understanding 	of 	the
opportunity Ms. Celletti had to observe her assailant —
that she had a substantial amount of time to observe the
assailant 	and 	saw 	his 	face 	up 	close 	with 	adequate
lighting. 	Thus, he felt there was no point in filing a
motion 	to 	suppress. 	Rather 	than 	file 	a 	motion 	to
suppress, Attorney McCormick’s preferred strategy was to
present 	evidence 	of 	the 	suggestive 	identification 	in
order 	to 	persuade 	the 	jury 	to 	give 	Ms. 	Celletti’s
testimony 	less 	weight, 	as 	well 	as 	to 	attack 	the
credibility of her identification.
Attorney 	McCormick’s 	objective 	was 	to 	present 	the
jury 	with 	evidence 	that 	would 	allow 	him 	to 	argue 	that
Ms. 	Celletti’s 	identification 	of 	Mr. 	Johnson 	should 	be
disregarded. 	Because he felt a motion to suppress would
ultimately 	have 	been 	futile, 	Attorney 	McCormick
strategically 	chose 	not 	to 	file 	one 	as 	it 	could
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potentially give Ms. Celletti a “dress rehearsal” on the
types 	of 	questions 	he 	would 	be 	asking 	her 	on 	cross-
examination.
Id. at 10-11 (citations omitted).
The court subsequently stated:
Attorney 	McCormick, 	throughout 	the 	trial,
meticulously 	followed 	his 	strategy 	to 	attack 	Ms.
Celletti’s 	identification 	of 	Mr. 	Johnson 	as 	her
assailant. 	In his opening argument, Attorney McCormick
emphasized 	to 	the 	jury 	that 	the 	accuracy 	or 	inaccuracy
of Ms. Celletti’s identification was a critical issue in
the 	case. 	During 	cross-examination 	of 	Ms. 	Celletti,
Attorney 	McCormick 	highlighted 	her 	inconsistent
statements 	with 	respect 	to 	which 	side 	of 	Mr. 	Johnson’s
glasses 	she 	claimed 	to 	have 	observed 	the 	tape. 	In 	his
closing 	argument 	to 	the 	jury 	Attorney 	McCormick
highlighted 	the 	evidence 	that 	Ms. 	Celletti, 	two 	weeks
after 	the 	robbery, 	failed 	to 	pick 	Mr. 	Johnson’s
photograph out of a photo array which, in fact, contained
a 	photograph 	of 	Mr. 	Johnson. 	Finally, 	in 	his 	closing
argument to the jury, Attorney McCormick reiterated that
there 	was 	no 	physical 	evidence 	produced 	by 	the 	State
linking 	the 	Petitioner 	to 	the 	crimes 	with 	which 	he 	was
charged, and that the only evidence produced by the State
was the suggestive identification made by Ms. Celletti.
Id. at 11-12 (citations omitted).
The post-conviction court found that “the decision whether to
file 	a 	motion 	to 	suppress 	or 	not 	was 	a 	tactical 	one,” 	id. 	at 	16,
“based 	upon 	informed, 	professional 	deliberation,” 	id. 	at 	12.
“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable
. . . .” 	Strickland, 466 U.S. at 690; see also Martin v. Merrill,
Civil No. 07-156-B-W, 2008 WL 114569, at *16 (D. Me. Jan. 9, 2008)
(“These 	excerpts 	from 	the 	evidentiary 	hearing 	on 	the 	post-
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conviction 	petition 	demonstrate 	that 	[petitioner]’s 	criminal
attorney 	was 	making 	the 	kind 	of 	tough 	strategic 	decisions 	that
form 	the 	quintessential 	example 	of 	a 	performance 	that 	survives
Strickland 	scrutiny.”). 	Moreover, 	trial 	“counsel’s 	performance
was not deficient if he declined to pursue a futile tactic.” 	Vieux
v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999) (citing United States v.
Wright, 573 F.2d 681, 684 (1st Cir. 1978) (“Counsel is not required
to 	waste 	the 	court’s 	time 	with 	futile 	or 	frivolous 	motions.”));
see also Knight v. Spencer, 447 F.3d 6, 16 (1st Cir. 2006).
Striving 	“to 	reconstruct 	the 	circumstances 	of 	counsel’s
challenged 	conduct, 	and 	to 	evaluate 	the 	conduct 	from 	counsel’s
perspective at the time,” Post-Conv. Decision 12 (quoting Tassone,
42 	A.3d 	at 	1285), 	as 	Strickland 	requires, 	466 	U.S. 	at 	689, 	the
post-conviction 	court 	specifically 	found 	that 	trial 	counsel’s
“tactical 	decision 	to 	forgo 	the 	filing 	of 	a 	motion 	to 	suppress
identification in this case was reasonable ‘in view of the totality
of the circumstances,’” Post-Conv. Decision 16 (quoting Hazard v.
State, 968 A.2d 886, 892 (R.I. 2009)). 	The post-conviction court
concluded:
Attorney 	McCormick 	chose 	and 	vigorously 	pursued 	a
particular 	trial 	strategy—the 	one 	that 	he 	thought 	gave
his 	client 	the 	best 	chance 	of 	success. 	The 	Court 	does
not view his strategic decision as an erroneous one, but
even if it was, “mere tactical decisions . . . do not by
themselves 	constitute 	ineffective 	assistance 	of
counsel.”
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Id. 	(alteration 	in 	original) 	(quoting 	Toole 	v. 	State, 	748 	A.2d
806, 	809 	(R.I. 	2000)); 	see 	also 	id. 	(“The 	Court’s 	review 	of
Attorney 	McCormick’s 	trial 	strategy 	will 	not 	be 	distorted 	by 	the
20/20 vision of hindsight.”).
Although 	reasonable 	minds 	may 	differ 	as 	to 	whether 	trial
counsel’s 	strategic 	decision 	not 	to 	file 	a 	motion 	to 	suppress
constituted ineffective assistance, that renders the state court’s
decision 	reasonable. 	See DeCiantis, 	868 	F. 	Supp. 	at 	5; 	see 	also
Flores-Rivera v. United States, 16 F.4th 963, 969 (1st Cir. 2021)
(“This 	court 	considers 	a 	wide 	range 	of 	actions 	to 	be 	reasonable
strategy. 	A 	decision 	by 	counsel 	that 	‘prove[s] 	unsuccessful, 	or
even unwise,’ may nevertheless be a reasonable strategic choice.”
(quoting 	United 	States 	v. 	Natanel, 	938 	F.2d 	302, 	310 	(1st 	Cir.
1991))).
The 	Court 	reiterates 	that 	it 	is 	not 	its 	job 	to 	determine
whether 	trial 	counsel 	rendered 	ineffective 	assistance 	of 	counsel
but 	rather 	to 	determine 	whether 	the 	state 	court’s 	application 	of
the Strickland standard was reasonable. 	See Harrington, 562 U.S.
at 	101; 	see 	also 	Carpio, 	269 	F. 	Supp. 	3d 	at 	9 	(“[I]t 	is 	not 	for
this 	Court 	to 	decide 	whether 	[petitioner] 	meets 	the 	Strickland
standard. 	In deciding [petitioner]’s habeas petition, this Court
instead 	decides 	‘whether 	the 	state 	court’s 	application 	of 	the
Strickland 	standard 	was 	unreasonable.’” 	(quoting 	Harrington, 	562
U.S. at 101)); see also Lucien v. Spencer, 871 F.3d 117, 131 (1st
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Cir. 	2017) 	(“Even 	if 	we 	were 	to 	regard 	such 	a 	[strategic] 	choice
as 	negligent, 	that 	would 	not 	be 	nearly 	enough: 	Our 	review 	of
ineffective 	assistance 	claims 	like 	this 	one 	is 	‘doubly
deferential,’ 	requiring 	[petitioner] 	to 	show 	that 	counsel’s
performance 	was 	objectively 	unreasonable 	and 	that 	no 	reasonable
jurist could come to the contrary conclusion the state court drew.”
(emphasis in original)). 	Thus, the Court concludes that the post-
conviction 	court 	did 	not 	unreasonably 	apply 	the 	Strickland
standard in this regard.
Trial counsel’s reasoning as to whether to interview Celletti
was the same as his analysis regarding filing a motion to suppress.
The post-conviction court noted trial counsel’s concern regarding
the suggestiveness of Celletti’s identification of Johnson. 	Post-
Conv. Decision at 15. 	The court further stated that:
Prior 	to 	determining 	his 	defense 	strategy, 	Attorney
McCormick 	reviewed 	the 	discovery, 	researched 	the 	issue
of 	identification, 	obtained 	the 	photo 	array 	that 	was
shown 	to 	Ms. 	Celletti, 	reviewed 	her 	statements,
including 	the 	transcripts 	of 	her 	Grand 	Jury 	testimony,
and 	reviewed 	police 	reports. 	. 	. 	. 	After 	his
investigation Attorney McCormick strategically chose not
to 	file 	a 	motion 	to 	suppress 	Ms. 	Celletti’s
identification of Mr. Johnson as the perpetrator of the
crimes. 	This 	Court 	is 	satisfied 	that 	had 	Attorney
McCormick or an investigator interviewed Ms. Celletti as
part of his investigation it would not have altered his
defense 	strategy. 	This 	Court 	specifically 	finds 	that
Mr. McCormick’s investigation of the case prior to trial
was 	sufficient 	and 	did 	not 	constitute 	ineffective
assistance of counsel.
Id. 15–16 (citations omitted).
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Again 	the 	post-conviction 	court 	did 	not 	unreasonably 	apply
Strickland with respect to this issue. 	The court recognized that
“[i]n 	any 	claim 	made 	regarding 	the 	ineffectiveness 	of 	defense
counsel, ‘a particular decision not to investigate must be directly
assessed 	for 	reasonableness 	in 	all 	the 	circumstances, 	applying 	a
heavy 	measure 	of 	deference 	to 	counsel’s 	judgments.’” 	Id. 	at 	15
(quoting 	Strickland, 	466 	U.S. 	at 	691); 	see 	also 	Strickland, 	466
U.S. 	at 	691 	(“[C]ounsel 	has 	a 	duty 	to 	make 	reasonable
investigations 	or 	to 	make 	a 	reasonable 	decision 	that 	makes
particular 	investigations 	unnecessary. 	In 	any 	ineffectiveness
case, 	a 	particular 	decision 	not 	to 	investigate 	must 	be 	directly
assessed 	for 	reasonableness 	in 	all 	the 	circumstances, 	applying 	a
heavy 	measure 	of 	deference 	to 	counsel’s 	judgments.”); 	Lema 	v.
United 	States, 	987 	F.2d 	48, 	55 	(1st 	Cir. 	1993) 	(“The 	decision 	to
interview potential witnesses, like the decision to present their
testimony, 	must 	be 	evaluated 	in 	light 	of 	whatever 	trial 	strategy
reasonably 	competent 	devised 	in 	the 	context 	of 	the 	particular
case.” 	(emphasis 	in 	original)). 	The 	post-conviction 	court 	found
that 	trial 	counsel’s 	pretrial 	investigation 	of 	the 	case 	was
sufficient 	and 	did 	not 	constitute 	ineffective 	assistance 	of
counsel. 	Post-Conv. 	Decision 	15-16; 	see 	also 	Rice 	v. 	State, 	38
A.3d 	9, 	18 	(2012) 	(“[T]he 	lens 	under 	which 	this 	Court 	examines
constitutionally defective representation under Strickland is one
of 	reasonable 	competency 	of 	assistance. 	Under 	[this] 	reasonably
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competent assistance standard, effective representation is not the
same 	as 	errorless 	representation. 	Thus, 	a 	choice 	between 	trial
tactics, 	which 	appears 	unwise 	only 	in 	hindsight, 	does 	not
constitute constitutionally deficient representation under th[is]
. 	. 	. 	standard.” 	(internal 	quotation 	marks 	omitted) 	(citations
omitted)).
In closing, the post-conviction court stated:
In 	look[ing] 	at 	the 	entire 	performance 	of 	counsel, 	the
Court 	is 	satisfied 	that 	Petitioner 	received 	effective
assistance 	of 	counsel. 	The 	Court 	cannot 	conclude 	that
Attorney 	McCormick’s 	performance 	was 	deficient 	in 	that
it 	fell 	below 	an 	objective 	standard 	of 	reasonableness.
. . . 	This Court is satisfied that Attorney McCormick’s
trial 	performance 	certainly 	fell 	within 	the 	wide 	range
of 	reasonable 	professional 	assistance 	to 	which
Petitioner was entitled.9
Id. 	at 	17 	(footnote 	added) 	(alterations 	in 	original) 	(internal
quotation marks omitted) (citations omitted). 	For its part, this
Court cannot say that the state court’s conclusion was unreasonable
or 	that 	fair-minded 	jurists 	could 	not 	disagree 	regarding 	its
reasonableness. 	See Harrington, 562 U.S. at 101.
B. 	Brady Violation
Johnson 	further 	claims 	that 	the 	State 	failed 	to 	disclose
exculpatory 	evidence 	in 	violation 	of 	his 	due 	process 	rights 	and
the 	Supreme 	Court’s 	decision 	in 	Brady 	v. 	Maryland. 	Second 	Am.
9 	Because 	the 	post-conviction 	court 	found 	that 	Johnson 	had
not satisfied the performance prong of Strickland, it declined to
address the prejudice prong. 	Post-Conv. Decision 18.
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Pet. 	3. 	The 	exculpatory 	evidence 	at 	issue 	is 	the 	fact 	that 	the
complaining witness learned Johnson’s identity from someone in the
Attorney 	General’s 	Office 	and 	that 	this 	information 	was 	not
disclosed to the defense prior to the commencement of trial.
In 	Brady, 	the 	Supreme 	Court 	held 	that 	the 	government’s
suppression 	of 	evidence 	favorable 	to 	the 	accused
violates due process if the evidence is material to guilt
or punishment. 	To prevail on a Brady claim, “petitioner
must demonstrate: (1) the evidence at issue is favorable
to him because it is exculpatory or impeaching; (2) the
Government 	suppressed 	the 	evidence; 	and 	(3) 	prejudice
ensued 	from 	the 	suppression 	(i.e., 	the 	suppressed
evidence was material to guilt or punishment).”
Bucci 	v. 	United 	States, 	662 	F.3d 	18, 	38 	(1st 	Cir. 	2011) 	(quoting
Conley 	v. 	United 	States, 	415 	F.3d 	183, 	188 	(1st 	Cir. 	2005)); 	see
also Flores-Rivera, 16 F.4th at 968 (summarizing Brady standard).
“To satisfy the prejudice (i.e., or materiality) prong of the Brady
analysis, 	the 	petitioner 	must 	show 	there 	is 	‘a 	reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” 	Bucci,
662 	F.3d 	at 	38 	(quoting 	Strickler 	v. 	Greene, 	527 	U.S. 	263, 	280
(1999)); 	see 	also 	Barrett 	v. 	United 	States, 	965 	F.2d 	1184, 	1189
(1st 	Cir. 	1992) 	(“The 	materiality 	test 	under 	Brady 	is 	not 	met
unless the nondisclosure of the evidence ‘undermine[s] confidence
in the outcome of the trial,’ which can occur only if ‘there is a
reasonable 	probability 	that, 	had 	the 	evidence 	been 	disclosed 	to
the 	defense, 	the 	result 	of 	the 	proceeding 	would 	have 	been
different.’” 	(quoting 	United 	States 	v. 	Bagley, 	473 	U.S. 	667, 	682
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(1985) 	(alteration 	in 	original) 	(citation 	omitted))). 	The 	Rhode
Island 	Supreme 	Court 	has 	stated 	that 	its 	“jurisprudence 	provides
even 	greater 	protection 	to 	criminal 	defendants 	than 	the 	one
articulated 	[by 	the 	United 	States 	Supreme 	Court].” 	Tempest 	v.
State, 	141 	A.3d 	677, 	683 	(R.I. 	2016) 	(alteration 	in 	original)
(internal quotation marks omitted).
As 	before, 	the 	post-conviction 	court 	correctly 	stated 	and
analyzed 	Johnson’s 	claim 	using 	established 	federal 	law, 	in 	this
case 	the 	Supreme 	Court’s 	decision 	in 	Brady. 	See 	Post-Conv.
Decision 18-21. 	The court found that Johnson had “failed to meet
his burden of proving his claim that his constitutional due process
rights 	under 	the 	Fifth 	and 	Fourteenth 	Amendments 	of 	the 	United
States Constitution were violated as the prosecution did not fail
to 	disclose 	material 	evidence 	to 	the 	Petitioner 	as 	interpretated
by Brady.” 	Id. at 22. 	The court was “not convinced that any Brady
violations 	[had] 	occurred.” 	Id. 	at 	20. 	It 	found 	that 	“[t]he
evidence 	cited 	by 	the 	Petitioner 	in 	his 	allegation 	of 	Brady
violations was not material either to guilt or punishment,” id. at
21, 	despite 	its 	recognition 	of 	the 	impeachment 	value 	of 	the
evidence, 	id. 	at 	20 	(noting 	that 	“the 	evidence 	as 	to 	how 	Ms.
Celletti 	learned 	that 	Mr. 	Johnson 	was 	a 	suspect 	in 	the 	robbery
could 	certainly 	be 	(and 	was) 	used 	to 	impeach 	Ms. 	Celletti’s
identification 	of 	Mr. 	Johnson 	. 	. 	.”). 	It 	did 	not 	appear 	to 	the
post-conviction court that the State had suppressed the evidence,
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id. (“At best, there was a late disclosure by the State on the day
of trial.”), or that the State “acted deliberately in withholding
this information from the defense,” id. at 20-21 (noting that the
State 	produced 	the 	corrected 	evidence 	to 	trial 	counsel, 	albeit
shortly 	before 	trial, 	“presumably 	in 	compliance 	with 	its
obligations under Brady”). 	Finally, the post-conviction court was
“not convinced that the State’s allegedly late disclosure had any
impact whatsoever on Attorney McCormick’s trial strategy, nor did
it 	affect 	the 	outcome 	of 	the 	trial.” 	Id. 	at 	21; 	see 	also 	id. 	at
20 (noting that “the corrected information did not alter Attorney
McCormick’s 	considered 	trial 	strategy 	not 	to 	file 	a 	motion 	to
suppress.”). 	Rather, 	trial 	counsel 	“utilized 	this 	evidence 	in
presenting 	his 	defense 	during 	both 	cross-examination 	and 	during
closing 	argument 	in 	an 	effort 	to 	convince 	the 	jury 	that 	the
identification 	was 	suggestive 	and 	should 	be 	given 	little 	or 	no
weight.” 	Id. at 21.
Given the deference that this Court must afford to state court
rulings under § 2254(d) — although not unlimited — the Court cannot
say 	that 	the 	R.I. 	Superior 	Court’s 	decision 	was 	an 	unreasonable
application of Brady.
Relief pursuant to 28 U.S.C. § 2254(d)(1) is not called
for when this court might merely have a different opinion
as 	to 	how 	things 	should 	have 	turned 	out. 	To 	the
contrary, the state court decision must be so offensive
to 	existing 	precedent, 	so 	devoid 	of 	record 	support, 	or
so arbitrary, as to indicate it is outside the universe
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of 	plausible, 	credible 	options. 	This 	is 	a 	high 	hurdle
. . . .
Hensley, 	755 	F.3d 	at 	737 	(citation 	omitted) 	(internal 	quotation
marks omitted). 	Johnson has not surmounted that hurdle.
IV. 	CONCLUSION
Based 	on 	the 	foregoing, 	the 	Court 	GRANTS 	the 	State’s 	Motion
to Dismiss, ECF. No. 21, and DENIES and DISMISSES Johnson’s Second
Amended Petition, ECF No. 19.
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RULING ON CERTIFICATE OF APPEALABILITY
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	Section 	2254
Cases in the United States District Courts, this Court hereby finds
that this case is not appropriate for the issuance of a certificate
of appealability (COA) because Johnson failed to make a substantial
showing 	of 	the 	denial 	of 	a 	constitutional 	right 	as 	to 	any 	claim,
as 	required 	by 	28 	U.S.C. 	§ 	2253(c)(2). 	Johnson 	is 	advised 	that
any 	motion 	to 	reconsider 	this 	ruling 	will 	not 	extend 	the 	time 	to
file 	a 	notice 	of 	appeal 	in 	this 	matter. 	See 	Rule 	11(a), 	Rules
Governing Section 2254 Cases.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: 	February 13, 2023
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