Tito ABRANTE, Petitioner, Appellant, v. Peter ST. AMAND, Superintendent, M.C.I. Cedar Junction, Respondent, Appellee.
No. 09-1020.
United States Court of Appeals, First Circuit.
Heard Nov. 2, 2009. Decided Feb. 3, 2010.
595 F.3d 11
Given that the Supreme Court is hearing oral argument in Comstock on January 12, 2010, and is likely to answer this question within the next six months, I would prefer to wait for its ruling rather than settle for either of the imperfect alternatives available to us now: remanding and creating potentially unnecessary work for the district court, or conversely declaring a major federal statute unconstitutional on debatable grounds. While it is true that the respondent here, like the respondent in Comstock, remains in federal custody pending the outcome on appeal, the majority‘s decision upholding the statute means that he will stay there either way, at least in the short term. On balance, I see less harm than good in waiting for the Supreme Court. I respectfully dissent.
Anne Marie Thomas, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Lincoln S. Jalelian,
Before LYNCH, Chief Judge, STAHL, Circuit Judge, and DiCLERICO,* District Judge.
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));
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 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 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
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.”
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
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 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
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, 100 S.Ct. 2183, 65 L.Ed.2d 115 (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, 100 S.Ct. 2183. Abrante argues that “[j]ust as in Henry, inmates here, knowing what the government sought to learn, initiated and held conversations 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, 100 S.Ct. 2183 (informant was acting under instructions as a paid informant for the government); see also Maine v. Moulton, 474 U.S. 159, 163, 176-77, 106 S.Ct. 477, 88 L.Ed.2d 481 (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 commit-
The governing law in this area, as set forth by the Supreme Court in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), is that the government may not knowingly use false evidence, including false testimony, to obtain a conviction. Id. at 269, 79 S.Ct. 1173. 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 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
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.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.”
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
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, 62 Mass.App.Ct. 1109, 817 N.E.2d 339, 2004 WL 2480390, 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 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.
IV.
For the foregoing reasons, we affirm the district court‘s denial of the habeas petition.
Affirmed.
* Of the District of New Hampshire, sitting by designation.
STAHL
Circuit Judge