United States Court of Appeals
For the First Circuit
No. 09-1020
TITO ABRANTE,
Petitioner, Appellant,
v.
PETER ST. AMAND, SUPERINTENDENT,
M.C.I. CEDAR JUNCTION,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl, Circuit Judge,
and DiClerico,* District Judge.
Victoria L. Nadel, by Appointment of the Court, for appellant.
Anne Marie Thomas, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Lincoln S. Jalelian,
Assistant Attorney General, were on brief for appellee.
February 3, 2010
*
Of the District of New Hampshire, sitting by designation.
STAHL, Circuit Judge. Petitioner Tito Abrante seeks
habeas review of his 2002 Massachusetts state convictions. The
district court orally denied Abrante's habeas petition but granted
a certificate of appealability as to all issues. We affirm the
district court's denial of habeas relief.
I.
We relate the facts of the underlying crime as they were
found by the Massachusetts Appeals Court ("MAC"), supplemented with
other record facts that are consistent with the state court's
findings. See Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006).
Under AEDPA, we must "'accept the state court findings of fact
unless [Abrante] convinces us, by clear and convincing evidence,
that they are in error.'" Id. (quoting McCambridge v. Hall, 303
F.3d 24, 26 (1st Cir. 2002) (en banc)); 28 U.S.C. §§ 2254(d)(2) and
(e)(1).
In the early morning of December 23, 2000, a series of
armed robberies was committed in Springfield, Massachusetts.
Abrante's nephew, Fernando Perez, robbed three victims at gunpoint
and shot and critically injured a fourth, an off-duty police
officer, while attempting to rob him. Abrante drove Perez in
Abrante's car from robbery to robbery. He also conceived of the
crime spree and provided Perez with a gun.
Both Perez and Abrante were arrested for the string of
robberies. While Abrante was in jail, he told four inmates of his
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involvement in the crimes. These inmates eventually informed the
police of Abrante's admissions, and two of the inmates, Nelson
Maldonado and Jesus Tolentino, testified at Abrante's trial.1 All
four of the inmates eventually received favorable dispositions of
their cases.2
On April 11, 2002, a Massachusetts Superior Court jury
convicted Abrante of (i) three counts of armed robbery, (ii) four
counts of use of a firearm while committing a felony, (iii) armed
assault with intent to murder, (iv) armed assault with intent to
rob, (v) assault and battery by means of a dangerous weapon, and
(vi) discharging a firearm within 500 feet of a dwelling. The MAC
affirmed the convictions, and the Supreme Judicial Court denied
Abrante's application for further appellate review. On April 20,
2006, Abrante filed a motion for a new trial, which the trial judge
denied without a hearing. The MAC affirmed the trial judge's
denial of the motion, and no further appellate review was granted.
Abrante filed his petition for habeas corpus on February
4, 2008. On December 9, 2008, the district court held a hearing
and ruled from the bench in favor of respondent. Abrante then
1
In addition, the government introduced ample corroborating
evidence of Abrante's direct involvement in the crimes at issue.
2
The other inmate informants were Rodolofo Melendez and Miguel
Oyola. According to Abrante, Oyola was unable to make a formal
statement because of mental competence issues.
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filed an application for a certificate of appealability, which was
granted in its entirety.
II.
On appeal, Abrante makes the following four arguments:
(1) the state established an agency relationship with the inmate
informants in violation of Abrante's Sixth and Fourteenth Amendment
right to counsel; (2) Abrante's right to due process was violated
by the admission of inmate informant testimony; (3) Abrante
received ineffective assistance of trial counsel; and (4) the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28
U.S.C. § 2254, is unconstitutional on its face and as applied in
this case.
We review de novo the district court's decision to grant
or deny habeas relief under AEDPA. O'Laughlin v. O'Brien, 568 F.3d
287, 298 (1st Cir. 2009) (citing Healy v. Spencer, 453 F.3d 21, 25
(1st Cir. 2006)).
The MAC previously adjudicated Abrante's first three
federal claims. AEDPA governs these claims and specifies different
standards of review for state court conclusions of law and findings
of fact. Respecting Abrante's claims that challenge legal
conclusions, we may not grant his petition for habeas relief unless
the state court's decision "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
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§ 2254(d)(1). As to Abrante's challenges to state court findings
of fact, habeas relief is only appropriate when the state court's
decision "was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254 (d)(2). A state court adjudication is "contrary
to" clearly established law if the 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.'" Gomes v. Brady, 564
F.3d 532, 537 (1st Cir. 2009) (quoting Williams v. Taylor, 529 U.S.
362, 405-06 (2000)) (alterations in Gomes). An unreasonable
application of clearly established federal law 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." Aspen v.
Bissonnette, 480 F.3d 571, 574 (1st Cir. 2007) (citing Horton v.
Allen, 370 F.3d 75, 80 (1st Cir. 2004)). Given this standard, "the
state court's decision is not vulnerable unless it evinces some
increment of incorrectness beyond mere error." Foxworth v. St.
Amand, 570 F.3d 414, 425 (1st Cir. 2009) (citing McCambridge, 303
F.3d at 36). The state court's interpretation or application of
federal law must be "objectively unreasonable." Furr v. Brady, 440
F.3d 34, 37 (1st Cir. 2006) (citing Horton, 370 F.3d at 80).
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III.
A. Violation of Right to Counsel Claim
Abrante first claims that the state established agency
relationships with inmate informants who then elicited admissions
from him without the presence of counsel in violation of his Sixth
and Fourteenth Amendment rights. Abrante argues that the MAC's
finding that no agency relationship existed between the informants
and the police before the informants heard his admissions was an
unreasonable factual determination. He also characterizes the
MAC's finding as a violation of Supreme Court precedent. We
disagree.
We first address Abrante's argument that the state
court's decision was based on an unreasonable determination of the
facts. In affirming the trial court's denial of Abrante's motion
for a new trial, the MAC found that Abrante had provided no
evidence of any agreement between the inmate informants and police
that existed before the informants heard Abrante's admissions.
Commonwealth v. Abrante, No. 06-P-898, 2007 WL 4180256, 876 N.E.2d
1185, at *3 (Mass. App. Ct. Nov. 23, 2007) (table).3 Under AEDPA,
we presume these findings to be correct, and Abrante has not
3
The MAC appears to have been referring to all four
informants. Respondent argues that Abrante's argument applies only
to the two testifying informants, but Abrante contends that because
elicitation is the prohibited conduct that violates the Sixth
Amendment, the argument is relevant to all four inmates. We
assume, without deciding, that the government's contact with all
four informants is properly at issue.
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offered clear and convincing evidence that would lead us to
conclude that they are unreasonable in light of the evidence
presented to the state court. 28 U.S.C. §§ 2254(d)(2) and
2254(e)(1).4
Abrante argues that Tolentino's bail reduction from
$100,000 to $500 and Tolentino's subsequent disappearance5 show
that Tolentino had an agreement with the police to provide
information against Abrante. The circumstances Abrante alleges,
however, do not show that any agreement existed with the police
before Tolentino heard Abrante's admissions about his crimes.
Evidence that Tolentino met with Springfield Police Officer
Joselito Lozada on January 22, 2002, on matters which Abrante
concedes were unrelated to him, is not to the contrary.
As to Maldonado, Abrante offers nothing more than the
coincidence that Maldonado was moved to Abrante's cell in November
2001, the same month that the United States Attorney declined to
prosecute Maldonado after being informed that Maldonado would be
4
The issue that recently concerned the Supreme Court in Wood
v. Allen, No. 08-9156, 2010 WL 173369 (Jan. 20, 2010), is not
presented by this case. Id. at *8 (electing not to resolve "how
and when" § 2254(e)(1)'s requirement that a petitioner rebut a
state court's presumptively correct factual determinations with
"clear and convincing evidence" applies in challenges to state
court findings of fact under § 2254(d)(2)). Abrante concedes in
his brief that he is obliged to establish by clear and convincing
evidence that the presumptively correct state court findings were
unreasonable.
5
The final notation in Tolentino's case docket indicates that
he may have been deported.
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prosecuted by the state. Abrante suggests that the timing of these
two events as well as the timing of Perez's trial in that same
month and subsequent police requests for information about Abrante
from Maldonado "suggests a particularly strong relationship of
agency between the state and Maldonado." This is mere speculation.
Abrante also argues that the government solicited
evidence about Abrante from Maldonado, Tolentino, and Melendez, and
that the MAC's finding that there was no solicitation was
unreasonable. First, we must note that the MAC did not make a
finding that there was no solicitation. It made no finding at all
on this point. Rather, the court concluded that even if it were to
"assume, arguendo," that police had told the inmates that they were
seeking information about Abrante, Abrante's claim that an agency
relationship existed would still fail. Abrante, 2007 WL 4180256,
at *3.
Abrante has not offered clear and convincing evidence of
any contact between the government and the informants beyond that
described by the MAC,6 and he has similarly failed to demonstrate
6
Abrante's only evidence that police did anything other than
ask Maldonado and Melendez whether Abrante had already discussed
his case with them is the testimony of defense investigator Philip
Kass. Kass testified that Maldonado told him that police had told
Maldonado that they could help him with his case if he would talk
with them about Abrante. But Kass also testified that Maldonado
told him this in English, without an interpreter, even though
Maldonado indicated that he would be more comfortable with an
interpreter. This is not clear and convincing evidence sufficient
to rebut the state court's finding that there was no agreement
between the government and Maldonado before Maldonado heard
Abrante's admissions.
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that the MAC's legal conclusion was an unreasonable application of
clearly established federal law. A police officer's asking an
inmate whether Abrante had already discussed his case with that
inmate does not create an agency relationship that could implicate
the Sixth Amendment. See, e.g., United States v. Taylor, 800 F.2d
1012, 1016 (10th Cir. 1986) (holding that "[i]n the absence of any
express or implied quid pro quo underlying the relationship between
[the informant] and the Government, and in the absence of any
instructions or directions by the Government," informant was not a
government agent).
We also reject Abrante's argument that the state court's
decision was a violation or unreasonable application of Supreme
Court precedent. Abrante appears to argue that the state court
unreasonably applied United States v. Henry, 447 U.S. 264 (1980),
claiming that the facts of this case are analogous. In Henry, the
Supreme Court held that the government violated the defendant's
Sixth Amendment right to counsel by soliciting a paid government
informant "to be alert to any statements made" by certain prisoners
with whom he was housed, including the defendant. Id. at 266.
Abrante argues that "[j]ust as in Henry, inmates here, knowing what
the government sought to learn, initiated and held conversations
As for Tolentino, there is no evidence that police approached
him about Abrante's case. The record reflects that after his
January 2002 meeting with Officer Lozada, Tolentino "learned that
the police were looking for people to testify against [Abrante],"
but it is unclear how he came by that information.
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with Abrante in violation of the Sixth Amendment." But Abrante
neglects the fact that in this case, unlike in Henry, there is no
evidence that the government had established an informant
relationship with the inmates that pre-dated the inmates'
conversations with Abrante. See id. at 270 (informant was acting
under instructions as a paid informant for the government); see
also Maine v. Moulton, 474 U.S. 159, 163, 176-77 (1985). Here, as
discussed above, the state court did not make such a finding, and
Abrante has not offered clear and convincing evidence to the
contrary.7
B. Due Process Claim
Abrante next argues that his right to due process was
violated when Tolentino and Maldonado were permitted to testify
despite alleged evidence that their testimony was untruthful. The
MAC found that "[Abrante's] assertion that the government knew that
the informants committed perjury is mere conjecture and not
supported by the evidence." Abrante, 2007 WL 4180256, at *3.
7
Abrante makes an additional argument that the appeals court
further engaged in an unreasonable application of clearly
established federal law when it "drew two diametrically opposed
conclusions: either that this was a case where the police told
inmates to 'keep their ears open' OR this was a case where the
conversations occurred prior to any contact with police."
(emphasis in original). As discussed supra, the court did not
reach a conclusion regarding whether police told the informants
that they were seeking information about Abrante. Moreover, it is
unclear how a court could engage in an unreasonable application of
clearly established federal law merely by assuming a fact for the
sake of argument.
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Abrante has failed to demonstrate that this conclusion was
objectively unreasonable.
The governing law in this area, as set forth by the
Supreme Court in Napue v. Illinois, 360 U.S. 264 (1959), is that
the government may not knowingly use false evidence, including
false testimony, to obtain a conviction. Id. at 269. Abrante
argues that the MAC unreasonably applied Napue, but this argument
must fail.8 Abrante engages in a series of speculations in support
of his view that Tolentino and Maldonado gave false testimony,9 but
8
Abrante also claims that the MAC's decision was contrary to
Arizona v. Fulminante, 499 U.S. 279 (1991), but as he has offered
no explanation as to why that case applies to these facts, we
consider this argument waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
9
Abrante claims that the evidence in the state court
proceedings failed to establish a trusting relationship between
Abrante and the informants, despite the fact that they were housed
in close proximity. He then states that some of the informants
spoke of a fear of Abrante and concludes, "[l]ogically, if they
feared him, they did not share his confidence and they would not
have spent time alone with him."
Abrante also notes that none of the informants testified in
Fernando Perez's trial in November 2001. He speculates that their
failure to come forward prior to Perez's trial is an indication
that they fabricated confessions after learning that the government
wanted information about Abrante.
Additionally, Abrante suggests that the testimony was false
because, he claims, it did not match eyewitness accounts or the
defendant's own words.
Finally, Abrante claims that Maldonado and Tolentino's
testimony against Abrante was manufactured based on notes that
Melendez made after his first conversation with police about
Abrante. Melendez later turned these notes over to detectives.
Unlike Melendez's subsequent statement, dated February 14, 2002,
these notes, dated January 24-26, were written in Spanish, and thus
potentially readable by Tolentino and Maldonado, neither of whom
could read English. Abrante claims that a phrase used by both
Tolentino and Maldonado at trial ("kill that cabron") came directly
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he offers no evidence that would lead to the conclusion that the
government knew that the testimony was allegedly false. Thus,
Abrante has not met his burden of showing that the MAC's conclusion
was unreasonable.
Abrante appears to make two additional arguments under
the heading of his due process claim. First, he argues that
Tolentino and Maldonado's testimony should have been excluded
because it was significantly more prejudicial than probative and
admitting it rose to the level of a constitutional violation.
Second, Abrante notes, yet again, that the informants received
favorable treatment after providing evidence in his case. Abrante
appears to be arguing, though he does not articulate the argument,
that the government violated his due process rights by failing to
disclose the extent of the rewards which the informants actually
obtained for their testimony.
As to the first argument, Abrante is challenging the
application of a state evidentiary rule, and in habeas
jurisdiction, our review of such challenges is severely limited.
"To be a constitutional violation, a state evidentiary error must
from Melendez's notes. According to Abrante, the notes were
produced in discovery, and available to Tolentino and Maldonado.
However, it is not clear from the record that either Tolentino or
Maldonado ever saw these notes. Maldonado testified that he
neither looked at any of the paperwork from Abrante's case, nor did
Abrante read any of it to him. Tolentino testified that Abrante
showed him Melendez's "statement," but it is unclear whether he was
referring to the English statement of February 14, 2002, or the
Spanish notes of January 24-26.
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so infuse the trial with inflammatory prejudice that it renders a
fair trial impossible." Petrillo v. O'Neill, 428 F.3d 41, 44 n.2
(1st Cir. 2005) (citing Subilosky v. Callahan, 689 F.2d 7, 10 (1st
Cir. 1982)). Given the probative value of Abrante's admissions, as
well as the extensive cross-examination of the informants conducted
by Abrante's trial counsel, we see little to indicate that the
informants' testimony so infused the trial with inflammatory
prejudice as to render a fair trial impossible.
As to the second argument, the MAC found that Abrante's
trial counsel extensively cross-examined the testifying informants
as to the favorable treatment that they hoped to receive in
exchange for their testimony. See Abrante, 2007 WL 4180256, at *3.
The court also found that the government did not fail to disclose
evidence of bias. Id. This was not an unreasonable conclusion,
and Abrante has not produced clear and convincing evidence of any
promises or rewards provided by the government to the informants
before they testified.
C. Ineffective Assistance Claim
Abrante next argues that he received ineffective
assistance of counsel at trial. The MAC rejected this claim,
stating the "[n]o ineffective assistance can arise if the trial
lawyer did not commit any errors," and then found that Abrante's
trial counsel was not ineffective as he did not overlook
meritorious arguments. Abrante, 2007 WL 4180256, at *4.
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To prevail on an ineffective assistance claim, a criminal
defendant must demonstrate both: (1) deficiency -- that trial
counsel's performance "fell below an objective standard of
reasonableness"; and (2) prejudice -- that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). A lawyer's performance
is considered deficient "only where, given the facts known at the
time, counsel's choice was so patently unreasonable that no
competent attorney would have made it." Knight v. Spencer, 447
F.3d 6, 15 (1st Cir. 2006) (internal quotations omitted).
Because Abrante's ineffective assistance claim is subject
to AEDPA's deferential standard of review, he must not only
establish counsel's ineffectiveness under Strickland, but must also
demonstrate that the state court's denial of his claim was
objectively unreasonable. Abrante cannot meet this burden.
Abrante asserts three grounds for his ineffective
assistance claim: (1) counsel should have filed a motion to
suppress inmate informant testimony on Sixth Amendment grounds; (2)
counsel should have filed a motion to exclude the statements of
Tolentino and Maldonado based on "Massachusetts evidentiary
standard 403 and due process concerns"; and (3) counsel should have
argued "important issues related to joint venture."
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Abrante does not argue the first two grounds; rather, he
refers to the previous two sections of his brief and the arguments
made therein, which we have discussed supra. As Abrante does not
attempt to explain how counsel's failure to file either of the two
motions meets the Strickland standard for deficiency and prejudice,
we could consider the argument waived, Zannino, 895 F.2d at 17, but
in any event, our prior discussion disposes of these two issues.
Abrante's third contention pertains to the admission of
Perez's confession at Abrante's trial as a statement in furtherance
of their joint venture. Abrante argues that trial counsel was
ineffective for failing to "address the lack of an evidentiary
standard" for joint venturers' statements in Massachusetts when he
moved to exclude the statement. Specifically, Abrante appears to
argue, as he did to the MAC, that once Perez's statement was
admitted as reliable, trial counsel should have challenged Perez's
reliability as a declarant.
Notably, Abrante challenged the admission of Perez's
statement in his direct appeal, and the MAC affirmed its admission.
Commonwealth v. Abrante, No. 03-P-651, 2004 WL 2480390, 817 N.E.2d
339, at *4 (Mass. App. Ct. Nov. 4, 2004) (table). Abrante again
challenged the admission of the statement in his collateral appeal,
specifically arguing that it lacked reliability, and the appeals
court again rejected his claim, finding that there was no need for
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an independent showing of reliability. Abrante, 2007 WL 4180256,
at *4.
Abrante's counsel could not have rendered ineffective
assistance in failing to address alleged errors of state
evidentiary law that were either non-prejudicial or nonexistent.
Knight, 447 F.3d at 16. Therefore, Abrante's counsel was not
ineffective for failing to challenge the reliability of Perez's
statement.
D. Challenge to AEDPA's Constitutionality
Finally, Abrante argues that AEDPA violates his right to
petition the government for redress of grievances under the First
Amendment by preventing federal review of constitutional issues of
first impression decided by state courts.
Abrante premises this argument on his claim that the
constitutional issues presented in his habeas petition are issues
of first impression. This assertion is incorrect. The issues
raised by Abrante fall well within the bounds of established
Supreme Court precedent, and, as we have held, "[t]he Constitution
is not offended when lower federal courts are prevented from
substituting for that of a state court their judgment as to
reasonable application of Supreme Court precedent." Evans v.
Thompson, 518 F.3d 1, 8 (1st Cir. 2008).
Thus, the issues Abrante raises do not present us with
the opportunity to consider his constitutional challenge to AEDPA.
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IV.
For the foregoing reasons, we affirm the district court's
denial of the habeas petition.
Affirmed.
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