Madelon

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

YVELON MADELON, )

)

Petitioner )

)

v. )

) Case No. 23-cv-11612-DJC

)

CAROL MICI, )

)

Respondent. )

__________________________________________)

MEMORANDUM AND ORDER

CASPER, C.J. October 28, 2025

I. Introduction

Petitioner Yvelon Madelon (“Madelon”) has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (“the Petition”). D. 1. For the reasons set forth below, the Court

DENIES the Petition.

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a

person in state custody may petition a federal court for relief on the grounds that such custody is

in violation of the petitioner’s constitutional rights, or the laws and treaties of the United States.

28 U.S.C. § 2254(a). For a federal court to grant habeas relief, the burden lies with the petitioner

to demonstrate that the judgment of the state court, as adjudicated on the merits, was either (1)

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “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).

Section 2254(d)(1) provides two discrete paths to relief. A state court’s judgment is

“contrary to” federal law 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.” Williams v. Taylor, 529 U.S.

362, 412-13 (2000). The “unreasonable application” clause applies when “the state court identifies

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

applies that principle to the facts of the prisoner’s case.” Id. at 413. Significantly, “an

unreasonable application of federal law is different from an incorrect application of federal law,”

id. at 410 (emphasis in original), such that a state court’s application of the law will not be deemed

unreasonable if “‘fairminded jurists could disagree’ on the correctness of the state court’s

decision,” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).

Under Section 2254(d)(2), factual determinations made by a state court are “presumed to

be correct” unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “[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 the light of the evidence

presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In

essence, habeas relief provides a “guard against extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at

102-03 (citations and internal quotation marks omitted). Accordingly, AEDPA “mandates highly

deferential federal court review of state court holdings.” Zuluaga v. Spencer, 585 F.3d 27, 29 (1st

Cir. 2009) (citing Williams, 529 U.S. at 403). “[E]ven a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable” as Section 2254(d) is “designed to confirm

that state courts are the principal forum for asserting constitutional challenges to state convictions.”

Harrington, 562 U.S. at 102-03.

III. Relevant Factual and Procedural Background

Unless otherwise noted, the following facts are drawn from the Bristol Superior Court’s

decision denying Madelon’s motion for a new trial, D. 16-1 at 9-20, the Massachusetts Appeal

Court’s decision affirming Madelon’s conviction on appeal and the denial of his motion for new

trial, D. 16-1 at 4-8, and the state court record, D. 21.

A. The Crime, Police Investigation and Charges

The charges against Madelon arose out of a report made to the Attleboro Police on August

6, 2016. D. 16-1 at 10. That day, the victim’s older sister brought the victim to the Attleboro

Police station to report that the victim had been sexually assaulted by Madelon, her stepfather. Id.

The sister stated that, earlier that day, she discovered the victim’s diary in which the victim wrote

about incidents of sexual assault by Madelon. Id. at 5. In subsequent conversation, the victim

disclosed to her sister that there had been several incidents of sexual assault that had occurred over

approximately one year. Id. at 10.

On August 16, 2016, Attleboro Police Detective James Miller (“Miller”) attended the

victim’s forensic interview at the Children’s Advocacy Center. Id. During the interview, the

victim disclosed several incidents of sexual assault. Id. at 10-11. The victim further stated that,

on one occasion, she was in the shower when Madelon entered the bathroom and began recording

a video of her with his phone while she was naked. Id. at 11. She also stated that, on several

occasions, Madelon took pictures of her while she was in bed in various stages of undress. Id.

On August 24, 2016, Miller submitted an application for a warrant to search Madelon’s

residence. Id. at 9-10. The search warrant sought “[c]ell phones, all computers, hard drives,

laptops, thumb drives or mass storage devices, tablets, CD’s or DVD’s, all printed pictures that

contain evidence of Child Pornography or children in any state of nudity or partial dress; mere

evidence or any other evidence of a crime.” Id. at 9-10, 32. In Miller’s affidavit, he also sought

“the subsequent forensic examination, to include a preliminary on-site examination, of any seized

electronic device(s) which are believed to contain images or videos that are consistent with Child

Pornography.” Id. at 11, 38.

In that affidavit, Miller attested to the victim’s forensic interview, and that based on the

victim’s statements, he “believe[d] that the video recorded [of the victim in the shower was]

consistent with what [he knows] to be Child Pornography.” Id. at 10-11, 37. Miller further

attested, “I know that cellular devices (such as smart phones) that have the ability to connect to a

WIFI connection or possess data capability to access the internet can transfer material to be stored

[on] other devices (such as CD’s, DVD’s, thumb drives, external hard drives, or on the hard drive

of their computer).” Id. at 11, 37.

On August 24, 2016, the Attleboro District Court issued the search warrant, id. at 9, 32,

and the Attleboro Police executed the search warrant on Madelon’s residence the same day, id. at

10. The Attleboro Police seized several items from Madelon’s residence, including three cell

phones and a laptop computer. Id. at 11. The Attleboro Police then submitted the phones to Officer

Vinciulla (“Vinciulla”), a digital examiner with the Metropolitan Law Enforcement Council, who

specialized in computer forensics and extracting information from electronic devices. Id. at 11-

12. Vinciulla was able to extract information from only one of the cell phones. Id. at 12 n.2.

Through the forensic examination, Vinciulla located “deleted video and photographic evidence of

a child in various stages of undress.” Id. at 13.

B. State Court Proceedings

On September 22, 2016, Madelon was indicted on four counts: two counts of indecent

assault and battery of a child under age fourteen, one count of assault and battery and one count of

statutory rape of a child. D. 21 at 43, 161-68. On November 16, 2017, a grand jury returned an

additional charge relating to the same factual incidents for one count of rape of a child aggravated

by age. Id. at 43, 143, 169-70. On May 17, 2018, a grand jury returned three additional charges:

one count for attempted posing a child under eighteen years of age in the nude, and two counts of

committing the act of posing a child in the nude. Id. at 43-44, 171-76.

All of the charges were joined for trial. Id. at 44. The judge dismissed the rape charge

stemming from the 2017 indictment prior to trial. Id. at 45; D. 16-1 at 9 n.1. On February 4, 2019,

Madelon’s trial began. D. 21 at 44. At trial, Vinciulla testified that he received the police reports

and search warrant and that he used the documents to narrow his forensic search of Madelon’s cell

phone to “specific items,” namely “video and image evidence,” through which he located “deleted

video and photographic evidence of a child in various stages of undress.” D. 16-1 at 13.

The jury also heard the victim testify. Id. at 12. The victim identified a photo of her sitting

on the toilet naked and said that Madelon recorded her. Id. The prosecutor also played video

recordings that the victim identified as videos of her taken by Madelon. Id. at 12-13. During his

cross-examination, Madelon admitted that he had taken the video of the victim on the toilet, but

testified that he had done so to show her mother because he thought the victim’s behavior was

inappropriate. Id. at 13.

After the close of the Commonwealth’s case, the judge allowed the defense’s motion for a

required finding of not guilty on one count of indecent assault and battery from the 2016 indictment

and one count of video depicting covered genitalia from the 2018 indictment. D. 21 at 45; D. 16-

1 at 9 n.1. On February 12, 2019, the jury convicted Madelon of indecent assault and battery on a

child under the age of fourteen, posing a child in a state of nudity and attempting to pose a child

in state of nudity. D. 16-1 at 9. The jury acquitted Madelon of one count of rape of a child and

one count of assault and battery. D. 16-1 at 9 n.1; D. 21 at 46. Madelon was sentenced to seven

to nine years in state prison and five years of probation with special conditions. D. 21 at 46.

On January 28, 2021, Madelon moved for a new trial, contending, among other things,

ineffective assistance of counsel on the grounds that his trial counsel failed to move to suppress as

evidence the contents of his cell phone. D. 16-1 at 9, 14; D. 21 at 185-88. On September 8, 2021,

the Bristol Superior Court denied the motion for new trial. D. 16-1 at 9-20. On September 22,

2021, Madelon moved for reconsideration of the court’s decision. D. 21 at 250-55. The court

denied the motion on October 1, 2021. D. 16-1 at 21.

On October 6, 2021, Madelon filed a notice of appeal of the Bristol Superior Court’s

decisions denying his motion for new trial and motion for reconsideration. D. 21 at 258. On

October 13, 2022, the Massachusetts Appeals Court affirmed Madelon’s conviction and the Bristol

Superior Court’s denial of his motion for new trial. D. 16-1 at 4-5. The court analyzed Madelon’s

motion for new trial, based on his claim of ineffective assistance of counsel, under Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974). Id. As the court stated, to succeed on a claim of ineffective

assistance of counsel under Saferian, a defendant must show that “‘there has been serious

incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably

below that which might be expected from an ordinary fallible lawyer,” and that this behavior

“‘likely deprived the defendant of an otherwise available, substantial ground for defense.’” D. 16-

1 at 4 (quoting Saferian, 366 Mass. at 96)).

In its analysis, the court acknowledged that a warrant is required to search a digital device

and concurrently recognized that a single warrant can both authorize the seizure of a digital device

and the search of its contents. Id. at 4-5. Reading the warrant and affidavit in a “realistic and

commonsense manner,” the court concluded that “[r]eading the warrant to permit the police only

to seize the physical cell phone without searching its contents would defy both the purpose of the

authorized search and common sense.” Id. at 5 (citations and internal quotation marks omitted).

The court disagreed with Madelon’s contention that the warrant was not adequately particular,

noting that a search warrant need not “‘identify specific locations or files on a cell phone‘” as

places to be searched to be adequately particular because such a requirement of “‘a search warrant

application . . . places an unrealistic burden on law enforcement and restricts legitimate search

objectives, given the storage capacity and file structure of most cell phones.’” Id. (quoting

Commonwealth v. Henley, 488 Mass. 95, 116 (2021)).

Thus, the court concluded that Madelon “failed to establish that had a motion to suppress

been litigated, it would have been successful” because a “proper reading of the warrant and

affidavit indicates that the police could both seize the described digital devices and search them

for evidence of child pornography,” and the warrant was sufficiently particular. Id. Applying

Saferian, the court concluded that Madelon, by failing to show that the motion to suppress should

have been filed, did not satisfy Saferian’s first prong, as “trial counsel’s failure to file a motion to

suppress did not amount to ineffective assistance.” Id. Given this ruling, the court did not reach

the prejudice prong. See id. On December 15, 2022, the Supreme Judicial Court of Massachusetts

denied further appellate review. Id. at 3.

C. This Petition

Madelon filed the Petition alleging that his conviction was obtained in violation of his Sixth

and Fourteenth Amendment rights to effective counsel. D. 1 at 5; see D. 16 at 6, 21. He contends

that he is entitled to relief because the Massachusetts Appeals Court’s analysis of his right to

effective assistance of counsel claim was an “improper and unreasonable” application of federal

law. D. 16 at 6, 17-19. Specifically, Madelon asserts that the Massachusetts Appeals Court erred

by failing to recognize the deficient performance of his trial counsel, who failed to move to

suppress the evidence obtained from his cell phone. D. 16 at 9-16. According to Madelon, his

cell phone was searched pursuant to a warrant that did not authorize the police to search and seize

the cell phone data because (1) the affidavit requesting a forensic examination was not incorporated

into the warrant and (2) alternatively, even if the affidavit was incorporated into the search warrant,

the request for a forensic examination was not sufficiently particular. Id. Thus, Madelon contends

that the Massachusetts Appeals Court was incorrect to rule that the warrant allowed the police to

search the cell phone for child pornography, and counsel’s failure to move to suppress the cell

phone evidence had a material effect on the trial. Id. at 16-21.

IV. Discussion

A. Ineffective Assistance of Counsel Standard

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S.

668 (1984), Madelon must show: “(1) deficient performance by counsel (2) resulting in

prejudice.” Yeboah-Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 2009) (quoting Malone v. Clarke,

536 F.3d 54, 63 (1st Cir. 2008)). When a defendant makes an “insufficient showing” on either

Strickland prong, “a court deciding an ineffective assistance claim” need not “address both

components of the inquiry.” Strickland, 466 U.S. at 687.

“The proper standard for attorney performance is that of reasonably effective assistance.”

Id. at 687. Thus, Madelon must show that, applied to these facts, “no competent attorney would

think a motion to suppress would have failed.” Premo v. Moore, 562 U.S. 115, 124 (2011); see

e.g., Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). The attorney’s performance must be

evaluated “considering all the circumstances.” Strickland, 466 U.S. at 688. Even if Madelon could

establish deficient performance of counsel, he must still show that absent trial counsel’s failure to

move to suppress, “there is a reasonable probability that the result of the proceeding would have

been different.” Yeboah-Sefah, 556 F.3d at 70 (quoting Sleeper v. Spencer, 510 F.3d 32, 39 (1st

Cir. 2007)).

When considering the Strickland standard as to a habeas petition, the question is not

whether counsel’s actions were reasonable, but instead whether there is “any reasonable argument

that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. That is,

“[t]he standards created by Strickland and § 2254(d) are both highly deferential, . . . when the two

apply in tandem, review is doubly so.” Id. (citations and internal quotation marks omitted).

B. The Massachusetts Appeals Court Did Not Unreasonably Apply Clearly

Established Federal Law

Madelon argues that the Massachusetts Appeals Court unreasonably applied clearly

established federal law as to his ineffective assistance of counsel claim. D. 16 at 6, 17-19. For

the purposes of habeas review, “[t]he Strickland standard qualifies as clearly established federal

law.” Janosky v. St. Amand, 594 F.3d 39, 47 (1st Cir. 2010). The Massachusetts Appeals Court

analyzed the trial court’s denial of Madelon’s motion for new trial, based on his claim of

ineffective assistance of counsel, under Saferian, 366 Mass. at 96. D. 16-1 at 4-5. The First Circuit

has established that “the Saferian standard is at least as protective as, and functionally equivalent

to, the Strickland standard and that AEDPA deference is appropriate in reviewing Massachusetts

decisions applying Saferian.” Quintanilla v. Marchilli, 86 F.4th 1, 15 n.14 (1st Cir. 2023); see e.g.,

Strickland v. Goguen, 3 F.4th 45, 54 n.14 (1st Cir. 2021).

After analyzing whether Madelon’s trial counsel should have filed a motion to suppress,

the court concluded that Madelon “failed to establish that had a motion to suppress been litigated,

it would have been successful.” D. 16-1 at 4-5. This Court, applying Strickland, agrees with the

Massachusetts Appeals Court’s conclusion, and thus the court’s application of Saferian, the

Massachusetts equivalent of Strickland, was not an “unreasonable application” of clearly

established federal law. See 28 U.S.C. § 2254(d)(1).1

1. There Was No Ineffective Assistance of Counsel

Madelon bases his claim of ineffective assistance of counsel on the contention that his cell

phone was searched without a valid warrant and, therefore, his counsel was deficient in failing to

file a motion to suppress. D. 16 at 6, 9-16. This Court, as the Massachusetts Appeals Court did,

concludes that the search of the cell phone’s contents was authorized: the warrant sufficiently

incorporated the affidavit, and the warrant, including the incorporated affidavit, requested a

sufficiently particular search of the cell phone.

a. The Warrant Sufficiently Incorporates the Affidavit

Madelon contends that a motion to suppress would have succeeded because the warrant

does not sufficiently incorporate the affidavit. Id. To cross-reference an affidavit, a warrant must

1 Although Madelon briefly references 28 U.S.C. § 2254(d)(1)’s “contrary to . . . clearly established

federal law” language in the Petition, D. 16 at 17, he does not identify a Supreme Court case, with

facts that are materially indistinguishable from his own, that reached a conclusion different from

that of the Massachusetts Appeals Court here, nor has this Court identified such a case. See

Malone, 536 F.3d at 63 (explaining that for a habeas petitioner’s case to “fall under the ‘contrary

to’ category,” petitioner must have pointed to, or the reviewing court must have found, a “Supreme

Court case reaching a different result than the state court in [the present] case involving materially

indistinguishable facts”). Thus, Madelon also is not entitled to relief under this portion of Section

2254(d)(1).

expressly use terms of incorporation. Groh v. Rameriz, 540 U.S. 551, 557-58 (2004). Language

such as “see attached affidavit” suffices as words of incorporation. Rivera Rodríguez v. Beninato,

469 F.3d 1, 5 (1st Cir. 2006); see Massachusetts v. Shepard, 468 U.S. 981, 990 n.7 (1984); United

States v. Burgos-Montes, 786 F.3d 92, 108 (1st Cir. 2015). Here, the warrant declares, “Proof by

affidavit, which is hereby incorporated by reference, has been made this day and [the magistrate

judge] finds that there is PROBABLE CAUSE….” D. 16-1 at 32 (emphasis in original). Read

either on its face or in a commonsense manner, the warrant uses sufficient words of incorporation

to satisfy Groh. See Rivera Rodríguez, 469 F.3d at 5.

Madelon contends that, under Groh, the affidavit was not fully incorporated because it does

not appear that the affidavit was “present on the scene of the execution of the warrant.” D. 16 at

12-13 (referencing Groh, 540 U.S. at 560). The Supreme Court’s concern in Groh was to ensure

that the issuing judge had found probable cause for “every item mentioned in the affidavit.” Groh,

540 U.S. at 560. That was the case here where the face of the warrant, executed by the magistrate,

expressly incorporated the affidavit. Moreover, Vinciulla had “both the warrant and the supporting

affidavit to guide the search” at the time of the forensic examination. D. 16-1 at 5 n.3. For all of

these reasons, the Court concludes that the warrant sufficiently incorporated the affidavit.

b. The Warrant, Incorporating the Affidavit, is Sufficiently Particular as

to the Forensic Examination

In the alternative, Madelon contends that even if the warrant does incorporate the affidavit,

the affidavit was not sufficiently particular to authorize the forensic examination. D. 16 at 13-16.

The Fourth Amendment requires a warrant be particular about “the place to be searched” and “the

persons or things to be seized.” U.S. Const. amend. IV; see United States v. Grubbs, 547 U.S. 90,

97 (2006). The particularity requirement’s purpose is to prevent general or “wide-ranging

exploratory searches that the Framers intended to prohibit.”

Maryland v. Garrison, 480 U.S. 79, 84 (1987). To satisfy the particularity requirement, the warrant

must “particularly describe the place to be searched, and the persons or things to be seized.” United

States v. Watson, 719 F. Supp. 3d 172, 174 (D. Mass. 2024) (quoting Berger v. New York, 388

U.S. 41, 55 (1967)).

The need for particularity is more acute with cell phones given the amount of highly

sensitive and personal information they hold. Riley v. California, 573 U.S. 373, 393-94 (2014)

(noting that “[m]odern cell phones . . . implicate privacy concerns far beyond those implicated by

the search of a cigarette pack, a wallet, or a purse” because “the possible intrusion on privacy is

not physically limited in the same way when it comes to cell phones”); United States v. Wurie,

728 F.3d 1, 8 (1st Cir. 2013) (likening a cell phone to a computer or a home, as opposed to a

container with physical limitations to what it can hold).

Here, Madelon does not dispute that the warrant identified child pornography as the

specific offense for which there was probable cause to search. D. 16-1 at 32. Madelon, however,

does contend that the warrant does not adequately describe the cell phone as a place to be searched,

D. 16 at 10-13, but, as this Court concluded above, the warrant adequately incorporates the

affidavit, which describes the place to be searched as the “seized electronic device(s) which are

believed to contain images or videos that are consistent with Child Pornography.” D. 16-1 at 38.

To comply with the Fourth Amendment obligation that “searches deemed necessary should be as

limited as possible,” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971), a warrant must

establish some limitation on what evidence can be sought, United States v. Buck, 813 F.2d 588,

591-92 (2d Cir. 1987) (concluding warrant was not particular because it “gave no limitation” on

the “kind of evidence sought,” despite its description of applicable crime). Conversely, courts

have concluded that warrants are particular “if they limit their scope either to evidence of specific

federal crimes or to specific types of material.” See United States v. Russian, 848 F.3d 1239, 1245

(10th Cir. 2017) (citations and internal quotation marks omitted); see United States v. Triplett, 684

F.3d 500, 505 (5th Cir. 2012) (“findi[ng] limiting guidance” in warrant allowing search of

electronic devices where it “inform[ed] the officers that the proper electronic memory devices” to

be seized were those “relevant ‘to locate [defendant’s stepdaughter]’”).

The search warrant affidavit references the data search that could apply to a cell phone,

with the affiant requesting “that the Court authorize[] the subsequent forensic examination, to

include a preliminary on-site exam, of any seized electronic device(s) which are believed to contain

images or videos that are consistent with Child Pornography.” D. 16-1 at 38. Madelon claims that

the affidavit “asked only generally for a forensic audit, and there is no assurance that a magistrate

would conclude the scant level of detail appropriately constrained the data search.” D. 16 at 13.

This Court disagrees.

While the request for the forensic search did not list specific types of material that the

affiant sought to seize from the cell phone, the warrant did reference the relevant crime as a limiting

principle. D. 16-1 at 32, 36-38. Here, the warrant itself authorized the search for and seizure of

“[c]ell phones . . . that contain evidence of Child Pornography.” D. 16-1 at 32. The incorporated

affidavit further constrained the forensic search and seizure to devices “believed to contain the

images or videos . . . consistent with Child Pornography.” Id. at 38. Reading the incorporated

affidavit in a commonsense manner, see Ventresca, 380 U.S. at 109, it is logical that the affiant

intended that the executing officer(s) would search the phone for images and videos of child

pornography, see D. 16-1 at 38. While the request does not limit where on the phone the officers

could search, there is nothing to suggest that the officers would have had the information necessary

to identify where such images and videos would be found, and “[a] warrant need not be more

specific than knowledge allows.” United States v. Bishop, 910 F.3d 335, 338 (7th Cir. 2018). For

all of these reasons, the warrant was sufficiently particular to authorize the search and seizure of

the contents of Madelon’s cell phone for child pornography.

Given that the warrant particularly identified the place to be searched and the items to be

seized, it cannot be said that Madelon’s attorney’s performance was deficient for failing to bring

a futile motion, see Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999). Accordingly, Madelon’s claim

of ineffective assistance of counsel fails here on the first prong of Strickland.

2. Madelon Cannot Succeed on the Prejudice Prong Under Strickland

Even assuming arguendo that Madelon had satisfied the first prong of Strickland, he has

also failed to satisfy the second prong of Strickland, which requires a showing that counsel’s

deficient performance prejudiced him, creating a reasonable probability that the outcome at trial

would have been different. Yeboah-Sefah, 556 F.3d at 70. Given its conclusion that Madelon had

failed to show deficient performance by trial counsel, the Massachusetts Appeals Court did not

reach the prejudice prong in its analysis. See id.

As to this second prong of Strickland, Madelon has the burden to “affirmatively prove

prejudice.” Strickland, 466 U.S. at 693. The proper prejudice test is whether, due to counsel’s

error, it is “reasonably likely” that the result would have been different. Harrington, 562 U.S. at

111. A mere “conceivable effect on the outcome of the proceeding” is not enough. Strickland,

466 U.S. at 693. Instead, a “defendant must show 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. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.; United States v. Messner, 37 F.4th 736, 741 (1st Cir. 2022) (quoting Strickland,

466 U.S. at 694).

Madelon contends that the videos and images were “foundational to the trial,” during which

the prosecution showed the extracted videos and images and Madelon was “forced to explain away

the video evidence.” D. 16 at 20-21. Madelon argues that had his trial counsel moved to suppress

the cell phone contents and had been successful in doing so, “the focus on his examination would

have been much different, and it is impossible to say that the jury’s assessment of his credibility

was unaffected by the evidence.” Id. at 21. However, the videos and images were offered with

the victim’s overall testimony about the recording and assault incidents elicited through the

prosecution and defense examinations: the prosecution asked the victim to describe the events

captured in those images and videos and provide context for them. See D. 21-4 at 33-34, 36-51,

55-73. Given the totality of evidence offered at trial, Madelon has not fulfilled his affirmative

burden to show that, absent his counsel’s failure to have the images and videos from his cellphone

suppressed, the jury would have had a reasonable doubt of his guilt. See Strickland, 466 U.S. at

695. Accordingly, even assuming arguendo that he had shown that his trial counsel’s performance

was ineffective by failing to file a motion to suppress the contents of his cell phone, that such

deficient performance prejudiced him.

V. Conclusion and Certificate of Appealability

For the foregoing reasons, the Court DENIES the Petition, D. 1. A petitioner may receive

a certificate of appealability only if he “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of appealability is appropriate when

“reasonable jurists would find the district court’s assessment of the constitutional claims debatable

or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Based upon the analysis of the record and the applicable law in this Memorandum and Order, the

Court does not, at this juncture, conclude that reasonable jurists would find its conclusion denying

the Petition debatable or wrong. The Court, therefore, is not inclined to issue a certificate of

appealability but will give Madelon until November 28, 2025 to file a memorandum if he seeks to

address the issue of whether a certificate of appealability is warranted as to the Petition.

So Ordered.

/s Denise J. Casper

Chief United States District Judge