Slaven v. Russo

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

COREY SLAVEN, )

)

Petitioner, ) CIVIL ACTION NO.

) 16-CV-10436-DPW

v. )

)

LOIS RUSSO, )

Superintendent, MCI Concord, )

)

Respondent. )

MEMORANDUM AND ORDER

July 31, 2020

Corey Slaven was convicted in Barnstable County Superior

Court of sexual abuse of three underage girls, two of whom were

his nieces. His jury-waived trial in the Superior Court

resulted in a sentence of ten to twelve years imprisonment,

followed by a period of probation. In this federal collateral

attack under 28 U.S.C. § 2254 on his state court convictions,

Mr. Slaven challenges the decisions of his several trial-court

counsel not to seek suppression of pre-arraignment statements he

made to a Falmouth Police Officer.

I

FACTUAL BACKGROUND

In its review of the proceeding in the Superior Court

before Judge Rufo, who was both the trial and motion judge, the

Massachusetts Appeals Court summarized the facts. These

findings are entitled to a presumption of correctness under 28

U.S.C. § 2254(e)(1). See, e.g., Gunter v. Maloney, 291 F.3d 74,

76 (1st Cir. 2002); Sanna v. DiPaolo, 265 F.3d 1, 7 (1st Cir.

2001); Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000).

A. Underlying Offenses

With respect to offenses of conviction, the Appeals

Court relied upon the following facts in an unpublished

summary disposition:1

Between 2001 and 2007, [Petitioner] lived in New York.

However, from the time he was five years old until he

was twenty, he would stay with his older sister and

her family in Falmouth during school vacations and

holidays. [Petitioner] also lived with his sister and

her family for approximately six to seven months

beginning in December of 2007.

During the summer of 2001, when [Petitioner’s] niece,

S.B.,[2] was ten years old, there were numerous

occasions when [Petitioner] touched her vagina and her

“butt,” and forced her to touch his penis. In the

summer of 2002, when [Petitioner’s] other niece, A.B.,

was nine years old, [Petitioner] began assaulting her

in the same way. When A.B. was twelve, [Petitioner]

made her watch pornography with him, and when she was

thirteen, he forced her to perform oral sex on him.

S.C. was a friend of A.B. When S.C. was sixteen years

old, [Petitioner] choked her, forced her to have

intercourse, and threated to harm her younger sister

if she said anything.

1 Although unpublished in the traditional reporter series for the

Massachusetts Appeals Court — the Mass. App. Ct. volumes and

West’s Northeast Reporter volumes — memoranda accompanying such

dispositions are generally published through Westlaw. When

referring to the “unpublished” memoranda issued by the

Massachusetts Appeals Court in connection with this matter, I

will in this opinion use the Westlaw citation.

2 The victim-survivors of Mr. Slaven’s actions were referred to

by pseudonyms in the Massachusetts State Courts to protect their

privacy. I will follow that protocol in this Memorandum and

Order.

Commonwealth v. Slaven, 2015 WL 7289064, at *1 (Mass. App. Ct.

Now. 17, 2015) (“Slaven I”).

B. Ineffectiveness Claim

Mr. Slaven’s petition for federal habeas corpus relief as

now before me is limited to his claim that the failure of his

counsel to move to suppress pre-arraignment statements he made

to Falmouth Police Officer Clifford Harris rendered their

assistance constitutionally ineffective. With respect to this

issue, the Massachusetts Appeals Court observed:

At booking, [Petitioner] executed a Miranda waiver

and, later, when he claimed not to understand the

Miranda rights form, the officer slowly explained

those rights again, and the defendant stated that he

understood. The officer’s repeated explanation, and

the fact that the defendant had prior experience with

the criminal justice system support [Judge Rufo’s]

conclusion that the defendant’s chain of

involuntariness was devoid of merit . . . .

Nor could counsel have succeeded on an argument that

the defendant was misinformed about his right to

counsel. Before commencing the recorded interview,

Officer Harris told the defendant that he had the

rights to be silent, to speak with an attorney before

questioning, and to have an attorney present at the

interview. The officer also told the defendant that

if he could afford an attorney, he could contact one

immediately, and that if he could not afford an

attorney and wanted one, the officer would take him to

be arraigned, at which point he would be appointed an

attorney at public expense.[3] The defendant

3 In addition to these observations by the Massachusetts Appeals

Court, I note the underlying record indicates that prior to

waiving his Miranda rights, Mr. Slaven expressed some concern

about the ability of a public defender to provide adequate

representation, to which Officer Harris replied that “they do

ultimately did not invoke his right to counsel under

the Fifth Amendment to the United States Constitution

and elected to go ahead with the interview.

Slaven I, 2015 WL 7289064, at *1-*2.

C. Procedural Background

1. State Court Proceedings

Mr. Slaven was indicted in Barnstable County in May and

September of 2011 in Case Nos. 1172-052 and 1172-094,

respectively. Mr. Slaven was initially represented by appointed

counsel, Thomas Yonce. Mr. Yonce filed a motion to suppress all

physical evidence seized and statements elicited from Mr. Slaven

on the day of his arrest. Mr. Yonce later withdrew the motion.

After both Mr. Yonce and Mr. Slaven’s first successor counsel

withdrew from Mr. Slaven’s representation, another attorney,

Robert Deehan, was appointed. Neither of Mr. Slaven’s successor

counsel re-filed or otherwise pursued Mr. Yonce’s initial effort

to move for suppression of Mr. Slaven’s statements to Officer

Clifford on the day of his arrest.

Following a one-day bench trial, Judge Rufo found Mr.

Slaven guilty of statutory rape, indecent assault and battery on

a person under fourteen, indecent assault and battery on a

the best that they can...” and “[i]f you’re not happy with who

you got representing you, you could actually tell the judge and

say ‘Look it, this guy isn’t doing what I, I ask him to do.’”

See Dkt No. 41-1 at 6 (S.A. 00445).

person over fourteen, and two counts of incest in Case No. 1172-

052, as well as four counts of indecent assault and battery on a

child under fourteen and three counts of incest in Case No.

1172-094. He acquitted Mr. Slaven of three counts of rape of a

child with force and two counts of incest in Case No. 1172-052,

and of one count of rape of a child with force and one count of

incest in Case No. 1172-094. Prior to sentencing, Judge Rufo

granted Mr. Slaven’s motion to vacate two of the incest

convictions (charged in Case No. 1172-094) on the grounds that

the conduct alleged did not amount to a crime at the time the

acts were committed.

On May 15, 2013, Judge Rufo sentenced Mr. Slaven to ten to

twelve years imprisonment at MCI Cedar Junction on his

conviction for forcibly raping S.C. and for two counts of incest

as to A.B., as well as an on-and-after sentence of ten years of

probation for the remaining counts of conviction. Mr. Slaven

filed a direct appeal of these convictions on May 28, 2013.

Some ten months later, on March 4, 2014, Mr. Slaven filed a

motion for a new trial in the Superior Court based on alleged

ineffective assistance of counsel for failure to pursue a motion

to suppress his statements to Officer Harris, the claim he

continues to pursue in this proceeding, as well as a failure to

present a witness who could have substantiated his alibi defense

that he was in New York taking remedial courses during the time

in which the alleged events occurred in Massachusetts. Judge

Rufo denied this first motion for a new trial on November 3,

2014.

After Mr. Slaven timely appealed Judge Rufo’s denial of his

first motion for a new trial, the Massachusetts Appeals Court

consolidated Mr. Slaven’s direct appeal and his appeal of Judge

Rufo’s decision to deny him a new trial. Pursuant to (then-

applicable) Appeals Court Rule 1:28,4 the Massachusetts Appeals

Court affirmed both of Judge Rufo’s decisions in an unpublished

decision dated November 17, 2015. See Slaven I, 88 Mass. App.

Ct. 1113, 40 N.E.3d 1056, (Table) (Mass. App. Ct. 2015). The

Supreme Judicial Court denied Mr. Slaven’s application for

further appellate review, in which only the issue of Mr.

Slaven’s unsuppressed statements to Officer Harris, but not

counsel’s failure to call a witness, was presented. See

Commonwealth v. Slaven, 473 Mass. 1109, 44 N.E.3d 861 (Table)

(Mass. 2016).

4 What was formerly Massachusetts Appeals Court Rule 1:28 was

restated as Massachusetts Appeals Court Rule 23.0 as of March 5,

2020, and governs summary disposition by the Appeals Court. An

appeal may be decided pursuant to this rule when “a panel of the

justices of [the Appeals] [C]ourt [ ] determines that no

substantial question of law is presented by the appeal or that

some clear error of law has been committed which has injuriously

affected the substantial rights of an appellant.” Appeals Court

Rule 23.0(1).

Mr. Slaven then commenced this 28 U.S.C. § 2254 proceeding

in this Court on February 29, 2016. During the pendency of this

federal habeas corpus proceeding, Mr. Slaven filed a second

motion for a new trial on November 16, 2016 in Superior Court

challenging the sufficiency of the evidence and raising

additional claims of ineffectiveness.5 That motion was denied by

Judge Rufo on June 21, 2017, a decision later affirmed by the

Massachusetts Appeals Court in another unpublished Rule 1:28

opinion. Commonwealth v. Slaven, 96 Mass. App. Ct. 1107, 137

N.E.3d 1087 (Table), 2019 WL 5543047 (Mass. App. Ct. Oct. 28,

2019) (“Slaven II”). The Supreme Judicial Court denied further

appellate review. Commonwealth v. Slaven, 483 Mass. 1109, 141

N.E.3d 93 (Table) (Mass. 2020). Mr. Slaven’s state court

proceedings were thus concluded in November 2019.

Meanwhile, in addressing Mr. Slaven’s pending motion for

federal habeas corpus relief, I denied the Commonwealth’s

initial Motion for Judgment on the Pleadings without prejudice

[Dkt No. 18] on January 5, 2018 and stayed the habeas proceeding

5 As recited in the Massachusetts Appeals Court’s Rule 1:28

Slaven II opinion, the three new formulated grounds for claiming

ineffective assistance of counsel included counsels’ (1)

declination to seek additional information regarding his

identification by one of his victims; (2) failure to move for

suppression of that same victim’s in-court identification of Mr.

Slaven; and (3) advice to waive his right to a jury trial.

Commonwealth v. Slaven, 2019 WL 5543047, at *2-*3 (Mass. App.

Ct. Oct. 28, 2019).

to permit Mr. Slaven, assisted by newly appointed federal habeas

corpus counsel, to pursue his ultimately unsuccessful appeal of

the second motion for a new trial in the state court.

On March 3, 2020, following the exhaustion of all his

potential state court remedies, Mr. Slaven filed an amended

§ 2254 motion [Dkt No. 39] in this Court, to which the

Commonwealth responded with a renewed motion for Judgment on the

Pleadings on April 10, 2020 [Dkt No. 44]. The amended motion,

limited to the pre-arraignment statements issues exhausted in

Slaven I, presents the precise contention I now must address in

Mr. Slaven’s federal collateral attack on his state court

convictions.

II

LEGAL LANDSCAPE

A. Standard of Review

A federal court may only grant a habeas corpus petition by

a person held in state custody when the petitioner has both

exhausted his remedies in state court and established that “he

is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(b)(1)(A). See

generally Rose v. Lundy, 455 U.S. 509, 510 (1982). A federal

habeas corpus court will address the question whether the state

court adjudication “(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 proceedings.” 28 U.S.C. §

2254(d).

Under 28 U.S.C. § 2254(d)(1), a state court’s decision is

“contrary to” clearly established federal law when the facts of

the instant case are “materially indistinguishable from a

decision of [the Supreme Court] and nevertheless [the state

court] arrives at a result different from [that binding]

precedent.” Williams v. Taylor, 529 U.S. 362, 406 (2000). A

state court’s decision involves an unreasonable application of

clearly established federal law when it “identifies the correct

governing legal principle from [the Supreme Court’s] decisions

but unreasonably applies that principle to the facts of the

petitioner’s case.” Id. at 412. What makes an application of

established Supreme Court precedent unreasonable is “no doubt

difficult to define,” id. at 410, but its necessarily narrow

scope can be understood through a review of when it does not

apply. If any fair-minded jurist could agree with the state

court ruling, then the state court did not unreasonably apply

established Supreme Court precedent. Harrington v. Richter, 562

U.S. 86, 101 (2011).

Under 28 U.S.C. § 2254(d)(2), a petitioner may also seek

federal habeas corpus relief on the theory that the state

court’s findings were “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). The federal court reviews

these findings of fact against a standard of “objective

reasonableness” in light of the evidence actually presented.

Williams, 529 U.S. at 409-412. Here, the relevant question is

whether the state courts reasonably applied established Supreme

Court precedent regarding claims of constitutionally ineffective

assistance of counsel.6

State court rulings are due a high degree of deference, and

their decisions must “be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)

6 Mr. Slaven has offered the blanket assertion that he is

entitled to relief on all three of these bases (purporting to

challenge a ruling that contradicted clearly established Supreme

Court precedent, a ruling that involved an unreasonable

application of clearly established Supreme Court precedent, and

a ruling involving fact finding that was objectively

unreasonable based on the evidence presented). However, there

is support for neither of the alternative propositions to the

theory of unreasonable application of clearly established

Supreme Court precedent. The state courts identified the proper

standard against which to consider his ineffective assistance of

counsel claims. Moreover, the state court fact finding was

objectively reasonable. Indeed, the facts cited by Mr. Slaven

himself are largely drawn from the transcript of his

conversation with Officer Harris, which is also the evidence the

Massachusetts state courts considered in making fact

determinations on this issue.

(citing Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997));

Clements v. Clarke, 592 F.3d 45, 47 (1st Cir. 2010), cert.

denied, 561 U.S. 1014 (2010). To warrant reversal, the

decisions reached by the state court must be “objectively

unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)

(noting that the “objectively unreasonable standard” is more

deferential to state court rulings than [the] “clear error”

standard).

When a petition for habeas corpus is based on claims of

ineffective assistance of counsel, the deferential approach of

federal courts toward state court determination is heightened.

“The clearly established federal law governing ineffective

assistance of counsel claims is the framework established by

Strickland [v. Washington, 466 U.S. 688 (1984)].” Jewett v.

Brady, 634 F.3d 67, 75 (1st Cir. 2011). Massachusetts state

courts apply the “functional equivalent” of the Strickland

standard, “which requires a ‘serious incompetency, inefficiency,

or inattention,’ that ‘has likely deprived the defendant of an

otherwise available, substantial ground of defence,’” id.

(citing Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass.

1974)). Judge Rufo, in denying Mr. Slaven’s motion for a new

trial, applied both Saferian and Strickland and the Appeals

Court did not disturb that approach.7 See Jewett v. Brady, 634

F.3d at 75 (1st Cir. 2011) (citing Harrington, 562 U.S. at 105)

(“The Supreme Court has [] reinforced the ‘doubly’ deferential

standard that applies to a state prisoner’s claims in a federal

habeas petition that a state court unreasonably applied the

Strickland principles” governing ineffective assistance of

counsel analysis); Yeboah-Sefah v. Ficco, 556 F.3d 53, 56 (1st

Cir. 2009) (“to establish constitutionally ineffective

assistance of counsel as a ground for federal habeas relief, the

petitioner bears a doubly heavy burden”).

The Supreme Court has expressly cautioned federal courts to

“guard against the dangers of equating unreasonableness under

Strickland with unreasonableness under § 2254(d). 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.” Harrington, 562 U.S. at 105. In other

words, my review is of the state courts’ application of the

principles of Strickland and Saferian to trial counsel’s

7 While the Massachusetts Appeals Court cited neither Strickland

nor Saferian, it relied on Judge Rufo’s memorandum explaining

the reasons for his denying a new trial. His Memorandum cited

and applied both. Moreover, by reaching its own conclusion that

Mr. Slaven could not have succeeded on any motion to suppress,

the Appeals Court implicitly found that counsel was not

ineffective for declining to pursue a losing motion, which could

not have prejudiced Mr. Slaven’s defense.

performance rather than a direct analysis of counsel’s

performance. The questions I must answer, therefore, are

whether the arguments or theories that supported the state

courts’ decisions could have been reached by “fair-minded

jurists” and whether such “jurists could disagree that those

arguments or theories are inconsistent with the holding in a

prior decision of [the Supreme] Court.” Wetzel v. Lambert, 565

U.S. 520, 524 (2012) (citing Harrington, 562 U.S. at 101).

B. Ineffective Assistance of Counsel

The Sixth Amendment guarantees defendants the right to the

assistance of counsel in their defense. U.S. CONST., AMEND. VI.

To support a claim of ineffective assistance of counsel,

the defendant must show (1) “counsel’s representation fell below

an objective standard of reasonableness” judged “on the facts of

the particular case, viewed as of the time of counsel’s conduct”

and (2) counsel’s “error had [an] effect on the judgment.”

Strickland, 466 U.S. at 687-88, 690, 691. Both elements must be

met for a court to find counsel’s representation to have been

constitutionally infirm under the Sixth Amendment. Even in

cases where counsel clearly made egregious errors, these

missteps cannot serve as the grounds to set aside a judgment

unless they were so prejudicial to the defendant’s case that

that they affected the outcome. Id. at 691-92. On this prong,

the defendant must prove that there is a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. This

“reasonable probability” standard is a demanding one; it

requires “substantial, not just a conceivable, likelihood of a

different result.” Cullen v. Pinholster, 563 U.S. 170, 189

(2011). Of course, the inverse is also true: actions by defense

counsel that had a clear impact on the outcome of the case are

not grounds for vacating judgment unless they fall below an

objective standard of reasonable representation. This standard

“must be applied with scrupulous care, lest ‘intrusive post-

trial inquiry’ threaten the integrity of the very adversary

process the right to counsel is meant to serve.” Harrington, 562

U.S. at 105 (quoting Strickland, 446 U.S. at 689-90).

The Supreme Court has explained that the Strickland

standard “is a general one, so the range of reasonable

applications is substantial.” Harrington, 562 U.S. at 105. In

that connection, “[r]eviewing courts ‘indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance’ and represents sound

trial strategy.” Jewett, 634 F.3d at 75 (quoting Strickland,

466 U.S. at 689).

C. Miranda Warnings

Under the Fifth Amendment, as explained in Miranda v.

Arizona, 384 U.S. 436 (1966) and its progeny, persons subject to

custodial interrogation8 have the right to remain silent and

consult an attorney. Accordingly, statements made under such

circumstances are inadmissible in the absence of “procedural

safeguards effective to secure the privilege against self-

incrimination.” Id. at 444.

There is “no talismanic incantation,” California v.

Prysock, 453 U.S. 355, 359-60 (1981) (per curiam) or set of

“magic words,” United States v. Acosta, 741 F.3d 179, 199 n.11

(1st Cir. 2013), that will render a so-called Miranda warning

effective, accord Duckworth v. Eagan, 492 U.S. 195, 202-03

(1989), but the suspect must be “clearly advised,” of the

following:

[1] that he has the right to remain silent, [2] that

anything he says can be used against him in a court of

law, [3] that he has the right to the presence of an

attorney, and [4] that if he cannot afford an attorney

one will be appointed for him prior to any questioning

if he so desires.

Miranda, 384 U.S. at 479.

8 When conducting analysis pursuant to the rights outlined in

Miranda, “‘custody’ is a term of art that specifies

circumstances that are thought generally to present a serious

danger of coercion.” Howes v. Fields, 565 U.S. 499, 508-09

(2012). Such circumstances arise when “a reasonable person

[would] have felt he or she was not at liberty to terminate the

interrogation and leave.” Id. at 509 (quoting Thompson v.

Keohane, 516 U.S. 99, 112 (1995)). A person is subject to an

interrogation when there is express questioning, or its

functional equivalent, “that the police should know [is]

reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

Having been advised clearly of his rights, a suspect

may voluntarily9 waive them. Generally speaking, “cases in

which a defendant can make a colorable argument that a

self-incriminating statement was ‘compelled’ despite the

fact that the law enforcement authorities adhered to the

dictates of Miranda are rare.” Dickerson v. United States,

530 U.S. 428, 444 (2000).

III

DISCUSSION

The standards for federal habeas corpus review of state

court convictions are “difficult to meet . . . because [they]

w[ere] meant to be.” Harrington, 562 U.S. at 104. “Section

2254(d) reflects the view that habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice systems,’

[and that it is] not a substitute for ordinary error correction

through appeal.” Id. (quoting Jackson v. Virginia, 443 U.S.

307, 332, n. 5 (1979) (Stevens, J., concurring)). “The reasons

for this approach are familiar. ‘Federal habeas review of state

convictions frustrates both the States’ sovereign power to

9 The government bears the burden of demonstrating that a waiver

occurred knowingly and intelligently and that the suspect’s

election to proceed without exercising the right to remain

silent or have counsel present was “voluntary in the sense that

it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception,” such that it was “made

with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.”

Moran v. Burbine, 475 U.S. 412, 421 (1986).

punish offenders and their good-faith attempts to honor

constitutional rights.’” Id. (quoting Calderon v. Thompson, 523

U.S. 538, 555-56 (1998)). Although it represents a vehicle for

review, “[s]ection 2254(d) is a part of the basic structure of

federal habeas jurisdiction, designed to confirm that state

courts are the principal forum for asserting constitutional

challenges to state convictions.” Id.

Since the Supreme Judicial Court declined to grant further

appellate review, the Massachusetts Appeals Court was the last

state court to render a developed opinion on the issue of

whether Mr. Slaven’s trial counsel were ineffective.10 The issue

before me is whether the Appeals Court unreasonably applied the

Strickland and Saferian principles to reach a decision that was

clearly contrary to established federal law. This case falls

far short of the “extreme malfunctions” federal habeas corpus

relief is intended to correct. Harrington, 562 U.S. at 104

(citation omitted).

The Appeals Court’s decision to affirm Judge Rufo’s denial

of a new trial was objectively reasonable. It was not

unreasonable for the state court to find that Officer Harris’s

10 See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (federal

habeas court should “look through” . . . to the last related

state-court decision that [ ] provide[s] a relevant rationale”

when conducting analysis under 28 U.S.C. § 2254. The federal

court “reviews the specific reasons given by the state court and

defers to those reasons if they are reasonable.”).

comments regarding Mr. Slaven’s opportunity to call an attorney

if he could afford one pre-arraignment,11 did not render either

Officer Harris’s communication of Mr. Slaven’s Fifth Amendment

rights, or Mr. Slaven’s subsequent waiver of them, infirm such

that any reasonable counsel would have moved to suppress the

statements that followed. Officer Harris plainly did not

provide Mr. Slaven with any misinformation.

Moreover, it was reasonable for the state court(s) to find

that Mr. Slaven’s claims regarding ineffective assistance of

counsel would have failed the prejudice prong of Strickland

analysis because a reasonable strategic decision to decline to

11 It is important to note that only the ineffective assistance

branch of the Sixth Amendment is at issue here. That, in turn,

only implicates the Fifth Amendment. While the Fifth Amendment

right to counsel attaches whoever a person is subject to

custodial interrogation, see supra at n.8, the Sixth Amendment

right to counsel arises in a narrower set of circumstance that

are tied to the progress of the case in court. At a minimum,

the Sixth Amendment provides “that a person is entitled to the

help of a lawyer at or after the time that judicial proceedings

have been initiated against him ‘whether by way of formal

charge, preliminary hearing, indictment, information, or

arraignment.’” Brewer v. Williams, 430 U.S. 387 (1977) (quoting

Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Here, no judicial

proceedings had been initiated against Mr. Slaven, so his Sixth

Amendment right to counsel had not yet attached. The First

Circuit has held squarely that a federal complaint does not

qualify as the initiation of a formal charge. United States v.

Boskic, 545 F.3d 69, 82-84 (1st Cir. 2002). Mr. Slaven does not

contend state booking interviews in connection with a state

court complaint should be treated differently. Thus, the

underlying constitutional issue before me is one governed by the

Fifth Amendment protection against self-incrimination rather

than the Sixth Amendment right to counsel.

pursue a motion that has such a modest likelihood of success can

hardly be said to have prejudiced the defense case.

As a general matter, I must deny a petition for relief

under 28 U.S.C. § 2254 where any reasonable jurists could find

counsel’s representation of a petitioner objectively reasonable.

Even where other reasonable jurists might conceivably disagree

about the reasonableness of the representation received by the

petitioner, I am still obligated to deny such a petition for

federal habeas corpus relief. Similarly, if any reasonable

jurist could find that failure to pursue a motion to suppress

these statements would have been unlikely to prejudice Mr.

Slaven’s case, I would be required to deny relief on those

grounds as well. Here, I am faced with what appears to be a

reasonable representation by Mr. Slaven’s state court trial

counsel in declining to raise what the state court viewed as at

best a palely colorable Miranda claim. Moreover, it was a

reasonable conclusion reached by the state courts that a motion

to suppress would not have impacted Mr. Slaven’s case, given its

low chance of success. The analysis of the Appeals Court was

fully supported by the evidence of record. Accordingly, I find

and conclude Mr. Slaven is not entitled to federal habeas corpus

relief under 28 U.S.C. § 2254.

IV

CONCLUSION

For the reasons set forth more fully above, I GRANT

Respondent’s Motion [Dkt No. 44] for Judgment on the Pleading

and direct the Clerk to enter judgment dismissing this petition.

/s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE