MEMORANDUM AND ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This is a habeas corpus proceeding under 28 U.S.C. § 2254(d). Petitioner Daniel Cormier was convicted by a jury in state court of one count of rape, one count of assault with intent to rape, and six counts of assault and battery in connection with attacks on two women.
The matter was referred to United States Magistrate Judge Judith Gail Dein pursuant to 28 U.S.C. § 636(b)(1) for findings and recommendations. On November 30, 2012, the Magistrate Judge issued a Report and Recommendation recommending that the petition be denied.’Petitioner filed a timely objection to the Report and Recommendation on February 14, 2013. He objected to all of the Magistrate Judge’s findings, pointing to the facts and reasoning in his prior filings and setting out additional argument as grounds for his objections.
Upon de novo review, the Court adopts the Report and Recommendation of the Magistrate Judge.
I. Background
A. Factual Background
The facts surrounding the crimes that led to petitioner’s conviction are set out in the decision of the Massachusetts Appeals Court and are entitled to a presumption of correctness on habeas review. 28 U.S.C. § 2254(e)(1). The Appeals Court described the facts relating to the crimes as follows:
On July 24, 2000, the defendant picked up the first victim, a prostitute, in the
Chinatown section of Boston in a greenish-blue Ford Explorer, and drover her to a secluded location. He pummeled her on her face with his fists, climbed on top of her in the passenger seat, and, after she managed to escape from the vehicle, orally raped her. On September 10, 2000, the defendant picked up the second victim, also a prostitute, in Chinatown, in a Ford Explorer (black or ‘like green’), drover her to a secluded location, hit her on the face with his fists, ripped а braid of her hair from her scalp, climbed on top of her in the passenger seat, and .demanded sex.
Commonwealth v. Cormier,
A month after the first assault, the first victim — referred, to as “EW” — was shown a array of eight photographs, including one of Cormier. Id. She was told that the police had a suspect, and that her attacker might or might not be represented in the photo array. Id. Although the witness’s testimony and the detective’s testimony conflicted somewhat in terms of how definitively she identified Cormier’s photo, both agreed that she selected the photo and initialed the corner. Id.
Five months later, EW attended an eight-person live line-up, which was videotaped. Cormier was the only person who was in both the photo array and the in-person line-up. Although the state appeals court opinion never explicitly says that EW positively identified Cormier at the line-up, it appears to be uncontested that she did.
B. Procedural Background
On January 26, 2001, a Suffolk County grand jury indicted Cormier for the attacks .against both women.
On April 28, 2004, Cormier filed a motion to suppress the identifications of him made by EW, contending that they created a substantial likelihood of irreparable misidentification and violated his state and federal constitutional bights. The court held evidentiary hearings on August 5 and September 3, 2004. The court then denied the motion on September 28, 2004.
A jury trial began on February 2, 2005. During presentation of the government’s case, a dispute arose over a line of cross-examination that Cormier’s counsel sought to explore. The Appeals Court found the relevant facts as follows:
During direct examination^] the second victim [referred to as GJ] testified that while she was at the hospital after the incident, her boyfriend and his friend came to visit her. They were outside the hospital smoking when the defendant drove by.
She asked the men to follow him. A chase ensued, and both cars were stоpped by police. She yelled that she had been attacked and asked the police to check the defendant’s arm where she had bitten him during the struggle. When the police saw the bite, they arrested the defendant.
Defense counsel cross-examined the second victim and elicited her acknowledgment that she had lied to the police about getting a ride to her mother’s house from the defendant, and that she also had lied about where the defendant had picked her up. After counsel asked the victim to describe her boyfriend and his friend, he asked “were either one of these men your pimp?” The Commonwealth objected, and a lengthy sidebar ensued.
The judge stated that counsel had to have a good faith basis, that is, admissible evidence for this question, otherwise all he was doing was embarrassing the witness. After discussion with the judge who showed skepticism of counsel’s claims, counsel, based on information from the defendant and from his roommate’s testimony at the grand jury, made a proffer as follows:
“[A]bout an hour before she showed up at the hospital my client ran into somebody that he believed to be her pimp and her in that general vicinity, and there was a discussion about the payment of money, and that during that discussion which, you know, there was an argument, that she got into the car, she tried to get the keys out of the ignition to disable the car, and when he was trying to push her out which he indeed did push her out, she bit him in the arm and he drove away, and that he, you know, vehemently denies that he took her down to South Boston and beat the living hell out of her.”
The judge in relevant part responded: “Again, it seems to me ... there’s no reason to ask whether somebody is a pimp. You can ask her whether there was any involvement, you know, with the boyfriend or the friend and the defendant before she got into the car. You can ask that, and then you can explore if you believe that there is an [explanation], that you, you know, you have a*281 good faith basis for doing that, and frankly thus far it doesn’t make any logical sense to me, this story, but you can explore. If you’ve got, you know, some reason to believe that some other gentleman of somе size did something with the defendant beforehand, you know, it can’t be, again, spun out of nothing.”
The judge reiterated that she would not let counsel use the term pimp, “but you can ask whether there’s an interaction beforehand, because that’s what you’re trying to demonstrate.”
After the sidebar conference, counsel asked the witness a number of questions about the time she was picked up, and he then asked the questions set forth in the margin [FN3] to elicit if there had been a confrontation between the defendant and her boyfriend and her or if she had seen the defendant with another man prior to being picked up. Her answer was “no.” Counsel then turned to another subject.
[FN3] Q: “Was there a confrontation between either you and your boyfriend or any other man that occurred between you and your boyfriend or you and somebody else on the one hand, and Mr. Cormier before you went off to South Boston with him?”
The Court: “I’m afraid I — ”
Counsel: “I’m sorry, was that a bad question?”
The Court: “Just try it again because I didn’t quite get the question.”
Q: “Other than going to South Boston you say you went to South Boston with my client, correct?”
A: ‘Yes.”
Q: “And you think that was sometime between nine and eleven?”
A: “Yes.:
Q: “And before that time that you went to South Boston with just him, according to your testimony, did you see him while you were in the presence of another man.”
A: (No response)
Q: “Do you understand my question?”
A: “If before I saw him I was with somebody else and saw him?”
Q: “Right.”
A: “Like another man?”
Q: “Right.”
A: “No.”
Q: “Were there any men with you or in your vicinity near Tyler Street where you were working before you got in the car with Mr. Cormier, as you say, and went to South Boston?”
Prosecutor: “Objection.”
The Court: “Sustained, form. Well, do you want to withdraw the objection? She answered no to the question. I’ll let the question in.”
Q: “Did you get into Mr. Cormier’s car and try to take the keys out of his car in the area of Chinatown?”
A: “No.”
Cormier,
Cormier did not testify at trial, and the defense did not present any other witnesses. After the Commonwealth rested, the trial judge conducted a colloquy with the defendant. The Massachusetts Appeals Courts describes that colloquy as follows:
[The judge] asked him if he was aware of his absolute right to testify or not to testify, if he understood that the decision was one to make with anyone he wished including his attorneys, but in*282 the end was his decision. The defendant answered “yes” to the judge’s questions.
Id. at *5.
On February 8, 2005, the jury returned its verdict.
Following his conviction, Cormier— through new counsel — appealed his conviction, filed a motion for a new trial, and requested an evidentiary hearing on the motion. On May 16, 2008, the trial judge denied his motion for a new trial. Cormier appealed that denial, and the appeal was consolidated with his direct appeal. On August 20, 2009, the Massachusetts Appeals Court issued a decision affirming both the convictions and the denial of the motion for a new trial. An application for leave to obtain further appellate review was denied by the Massachusetts Supreme Judicial Court on December 3, 2009. Commonwealth v. Cormier,
The present habeas petition was filed on June 10, 2010. It was referred to Magistrate Judge Dein for a report and recommendation. That report and recommendation was issued on November 30, 2012. Cormier filed a timely objection.
II. The Standard for Habeas Review
Under 28 U.S.C. § 2254(d), a federal court may not issue a habeas petition “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state court decision (1) “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) “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).
III. Analysis
A. Sixth Amendment Right to Cross-Examination
Petitioner contends that the trial judge violated his constitutional rights by improperly constraining his cross-examination of GJ when the judge precluded Cormier’s counsel from asking GJ whether the man she identified as her boyfriend was actually her “pimp.”
The Appeals Court determined that “[t]he defendant was not denied his fundamental right to confront and cross-examine the witnesses against him.” Cormier,
Upon de novo review of the Magistrate Judge’s report, the Court concludes that deferential review is appropriate here. Petitioner’s briefing before the Appeals Court referred to both his state and federal constitutional rights. The Appeals Court analyzed the merits of petitioner’s claim, and determined that petitioner “was not denied his fundamental right to confront and cross-examine the witnesses against him.” As the First Circuit has explained, “AEDPA’s trigger for deferential review is adjudication, not explanation.” Clements v. Clarke,
Petitioner has not established that the state court’s decision was contrary to, or an unreasonable application of, clearly established federal law. A defendant has a Sixth Amendment right to confront the witnesses against him; included in that right is the opportunity for cross-examination. Nonetheless, a trial judge “retain[s] wide latitude” to impose reasonable limitations on cross-examination. Delaware v. Van Arsdall,
■ The Appeals Court determined that petitioner was not denied his constitutional right .of cross-examination because “[t]he judge did not foreclose all inquiry into a subject that could show bias or prejudice.” The court further concluded that any alleged error had not resulted in prejudice, because it was “highly unlikely that further questioning would have yielded different testimony.” Cormier,
Neither of these determinations are unreasonable. Although petitioner claims that “[t]he transcript demonstrates that the trial court strictly limited cross-examination to a single question,” this Court agrees with the Appeals Court and the Magistrate Judge that the trial judge did not unreasonably foreclose inquiry into the subject. She simply precluded petitioner’s counsel from using the word “pimp.” Further, given that the witness denied that there had been any prior altercation, and even that she had been with anyone at the time in question, there is no reason to believe that she would have answered differently if defense counsel was permitted to go down the desired line of questioning. The Appeals Court’s determinations that defendant was given an adequate opportunity to present his case, and that he was not prejudiced by the exclusion, are neither contrary to, nor unreasonable applications of, federal law.
Accordingly, the claim based on the limitation on cross-examination is without merit.
B. Waiver of Petitioner’s Right to Testify
Petitioner next contends that his waiver of his right to testify was not voluntary, knowing, and intelligent. He contends that his counsel failed to advise him that because of the trial court’s limitation on
Petitioner submitted two affidavits to the Appeals Court in support of this claim. The first, which he executed, attested that he always wanted to testify, and that his counsel advised against it. It further attested that he did not understand that his side of the story would not be presented to the jury if he did not testify. The second, executed by his trial counsel, attested that counsel had strongly advised him not to testify. It further attested that counsel never advised him “of the ramifications of not testifying in light of the court’s restriction on [GJ’s] cross-examination,” and that counsel later recognized that his advice was incorrect. These affidavits were both presеnted to the trial judge with petitioner’s motion for a new trial, and were before the Appeals Court during the consolidated appeal.
In denying the motion for a new trial, the trial judge stated that she did not credit petitioner’s statement that he would have testified if he had realized it was the only way he could get his story before the jury. She cited to Commonwealth v. Degro,
Petitioner challenges the state court’s decision as an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. He also challenges the Appeals Court’s decision as contrary to clearly established federal law, because it placed the burden on him to establish that his waiver was invalid. The Magistrate Judge rejected both of petitioner’s bases for relief.
With respect to petitioner’s claim of an unreasonable determination of the facts in light of the evidence under § 2254(d)(2), this Court agrees with the Magistrate Judge’s determination that the state court did not make an unreasonable determination of the facts. The Appeals Court determined that the trial court made a proper credibility determination that petitioner’s waiver of his right to testify was knowing and voluntary. The evidence included the trial court’s own participation in a colloquy with the petitioner, during which he indicated that he knew he had the right to testify, and knew the decision was his own. The court’s determination that petitioner waived his right knowingly was based in large part on his own statements. In light of those statements, the determination that petitioner’s assertion that he did not understand the consequences of his decision was not credible was a reasonable determination of the facts in light of the evidence. This Court is required to defer to a state court’s factual finding unless a habeas petitioner can rebut that finding with clear and convincing evidence. Petitioner has not met that burden.
With respect to petitioner’s claim under § 2254(d)(1), neither the trial court nor the Appeals Court acted contrary to, or unreasonably applied,' clearly established federal law as determined by the
However, there is no clearly established federal law holding that the Constitution requires a trial judge to grant a new trial simply because a defendant alleges that he did not fully understand the consequences of his prior waiver. Indeed, the Supreme Court has never held that a trial court must even inquire of a defendant whether he understands his right to testify, let alone confirm that his answers are based on a complete understanding of all possible consequences. Arredondo v. Huibregtse,
To the extent that petitioner challenges both the state court’s decision and the Magistrate Judge’s report because they placed the burden on him to establish that his waiver was invalid, his challenge is unavailing. Petitioner cites to Johnson v. Zerbst,
As a threshold matter, this Court .notes that Johnson addressed the Sixth Amendment right to counsel, not the right to testify on one’s own behalf. Thus, it does not appear that the standard in Johnson is even applicable. Furthermore, Johnson does not stand for any such mandatory presumption. In that casе, the Supreme Court addressed the conviction of a man who had never been offered an attorney by the trial court, had been denied one by the District Attorney, and who apparently was never informed of his right to counsel. The Supreme Court, in finding that he had not knowingly waived his right to an attorney, stated that courts should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson,
Next, petitioner challenges the report’s conclusion that the trial court did not err by refusing to hold an evidentiary hearing. He has not cited any constitutional right to an evidentiary hearing under these circumstances. Thus, there can be no constitutional defect in the court’s decision not to provide one.
Finally, petitioner objects to the report’s détermination that he waived any argument related to ineffective assistance of counsel. ■ Although he has previously argued that his waiver of his right to testify was invalid because he did not understand — in part because counsel did not adequately explain — the consequences of the decision, he has not at any point set forth a
Accordingly, upon de novo review, this Court finds that the petitioner’s claim that his waiver of his right to testify was invalid is without merit.
C. Denial of Petitioner’s Motion to Suppress Identification
Petitioner contends that the trial court erred in denying his motion to suppress the line-up identification by EW. He contends that the line-up was impermissibly suggestive and violated his due process rights.
The Appeals Court reviewed the merits of petitioner’s claim, and determined that he “has not met his burden of showing by [a] preponderance of the evidence, when the totality of the circumstances are considered, that [the victim] was subjected by the State to an identification that was unnecessarily suggestive and conducive to irreparable misidentification, such as would deny him of due process of law.” Cormier,
Deferential review is appropriate where, as here, the state court judge- expressly recognized that there was a federal constitutional right at issue, and stated that petitioner’s “due process rights” had not been violated. Under that deferential review, petitioner has not met his burden of demonstrating that the state court unreasonably applied clearly established federal law. Supreme Court precedent dictates that, in determining whether an identification violated due process requirements, a court must determine whether, based on the totality of the circumstances, the procedure was impermissibly suggestive. Neil v. Biggers,
Accordingly, petitioner’s claim that the denial of his motion to suppress violated his due process rights is without merit.
D. Denial of Motion to Sever
Finally, petitioner contends that the trial court’s denial of his motion to sever the charges involving EW violated his due process rights.
Petitioner challenged the denial of the motion to sever on direct appeal, and the challenge was adjudicated on its merits. The Appeals Court affirmed the trial judge’s denial of the motion to sever. It found that “[t]he judge’s decision was warranted. Both victims were prostitutes, both were picked up by the defendant in Chinatown in a Ford Explorer, both were driven to secluded locations where they were beaten on the face with the defendant’s fists.” Cormier,
The Appeals Court’s decision does not cite to any federal cases; however, it does cite to a case that states that, to prevail on a claim of misjoinder, the defendant must prove that “prejudice from joinder was so
Petitioner does not cite to any Supreme Court case setting forth clear standards for when misjoinder is so prejudicial as to cause a constitutional violation. Rather, clearly established federal law simply states that misjoinder may be a constitutional violation if it prevents a defendant from obtaining a fair trial. Here, the state court considered the circumstances of the case, and determined that the offenses were sufficiently related to justify trying them in one case. While petitioner may disagree with that determination, he has not demonstrated that it is an unreasonable application of any clearly established federal law.
Accordingly, petitioner’s claim that the denial of his motion to sever violated his due process rights is without merit.
IV. Conclusion
For the foregoing reasons, upon de novo review, petitioner’s objections to the Report and Recommendation of the Magistrate Judge are overruled, and the Report and Recommendation is accepted by the Court pursuant to 28 U.S.C. § 636(b)(1). The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. This matter is accordingly DISMISSED.
So Ordered.
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
Petitioner, Daniel Cormier, has brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his convictions on February 8, 2005 for rape, assault with intent to rape, and six counts of assault and battery in connection with attacks on two women.
After careful consideration of the record, and for the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the habeas
II. STATEMENT OF FACTS
The Underlying Crimes
On January 26, 2001, a Suffolk County grand jury issued an 18-count indictment against Cormier in connection with attacks on three women, referred to by their initials as EW, CS and GJ. These attacks allegedly took place on July 24, 2000(EW), August 18, 2000(CS) and September 10, 2000(GJ). The charges related to CS were dropped shortly before jury impanelment because the alleged victim refused to cooperate with the prosecution. Cormier,
EW
On July 24, 2000, the defendant picked up the first victim, a prostitute, in the Chinatown section of Boston in a greenish-blue Ford Explorer, and drove her to a secluded location. He pummeled her on her face with his fists, climbed on top of her in the passenger seat, and, after she managed to escape from the vehicle, orally raped her.
Cormier;
As described in more detail below, about a month after the attack, EW was shown a photo array which included the defendant’s picture. Cormier,
CS
Cormier was indicted on two counts of oral rape, two counts of vaginal rape, and two counts of assault and battery against CS relating to events that allegedly occurred on August 18, 2000. SA 135-40. As noted above, these charges against Cormier were dismissed before trial. Nevertheless, in connection with his habeas petition, Cormier has presented some facts relating to this incident since, he contends, these are facts which should have been presented to the jury as an explanation for the subsequent altercation with GJ, discussed below. See Pet. Mem. (Docket No. 22) at 3,19.
Cormier did not testify at trial, but submitted an affidavit in connection with his
Cormier contends that about a week after his arrest, he went to find CS or her twin sister to try and straighten things out, and ran into her pimp, William Buford. SA 151, ¶¶ 8-9. He got into a physical fight with Buford, who wanted Cormier to pay him and not CS. SA 151-52, ¶¶ 9-10. During this fight, according to Cormier, GJ got into his car and joined in the melee, during which time she bit Cormier’s arm. SA 152, ¶ 10. Cormier contends that it was the injuries he and GJ suffered in connection with this dispute which were wrongfully attributed to a rape of GJ. SA 152-53, ¶¶ 10-12.
GJ
Cormier was charged with assault with intent to rape, one count of assault and battery with a dangerous weapon, one count of assault with a dangerous wеapon, three counts of assault and battery, and one count of indecent assault and battery against GJ relating to events occurring on September 10, 2000. SA 141-47. As the Appeals Court describes the evidence relating to GJ, the “second” victim described at trial (since the charges relating to CS were dropped):
On September 10, 2000, the defendant picked up the second victim, also a prostitute, in Chinatown, in a Ford Explorer (black dr “like green”), drove her to a secluded location, hit her on the face with his fists, ripped a braid of her hair from her scalp, climbed on top of her in the passenger seat, and demanded sex.
Cormier,
Procedural History
The indictment handed down on January 26, 2001 charged Cormier with rape and four counts of assault and battery against EW, four counts of rape and two counts of assault and battery against CS, and assault with intent to rape, assault and battery with a dangerous weapon, assault with a dangerous weapon, three counts of assault and battery, and indecent assault and battery on a person over fourteen against GJ. SA 130-47. Cormier pleaded not guilty to all counts. SA 6-7. Attorney Deborah Beard-Bader was initially appointed to represent him. SA 120, 172. In or about January 2004, more than a year before trial, Ms. Beard-Bader was replaced by private counsel. SA 172. Cormier was represented by Attorney Thomas Butters and his associate, Matthew Thompson, at trial. SA 160, 168.
Motion to Sever
On August 6, 2002, the prosecution filed a motion for joinder of all charges for trial.
Motion to Suppress
On April 28, 2004, Cormier filed a motion to suppress the out-of-court, and all subsequent in-court identifications of him by EW. SA 123, 183-84. Cormier contended that “the impermissibly suggestive nature of [EW]’s identification during a live lineup on January 23, 2001 created a substantial likelihood of irreparable misidentifieation” and a violation of his state and federal constitutional rights. SA 183. Evidentiary hearings were held on August 5, 2004 and September 23, 2004. SA 123. The court made findings and rulings, and announced its decision in court on September 28, 2004, denying the motion to suppress. SA 193-216. The Appeals Court affirmed. Cormier,
The Trial
The trial commenced on February 2, 2005, and testimony concluded on February 4, 2005. SA 125. Cormier challenges the trial court’s ruling in connection with the cross-examination of GJ, which will be discussed in detail below. Cormier did not testify at trial. After the Commonwealth rested, the trial judge conducted a colloquy with Cormier about his decision not to testify. See SA 243-44. As discussed below, Cormier now contends that his waiver of his right to testify was not made knowingly or intelligently due to a lack of information from his counsel. The defense did not present any witnesses.
At the close of the Commonwealth’s case, the court issued a directed verdict on two of the charges relating to GJ: assault and battery with a dangerous weapon and indecent assault and battery on a person over the age of fourteen. See SA 418.
On February 7, 2005, after the Commonwealth and the defendant rested, but before closing arguments, the defendant failed to appear for trial, and could not be found. SA 125, 419. The court ordered the trial to continue in his absence. Id. On February 8, 2005, the jury acquitted Cormier of one count of assault and battery with respect to EW, and one count of assault by means of a dangerous weapon as to GJ. See SA 125-26, 419; Pet. Mem. at 7. The jury convicted him of all other charges. Id.
Cormier was located and brought into court on April 4, 2005. SA 126. He was sentenced on April 26, 2005. Id. Trial counsel withdrew, and new counsel was appointed to represent Cormier in connection with his appeal and subsequent motion for a new trial. See SA 13, 127-28. A timely appeal was filed, and the appeal was stayed pending proceedings on the expected motion for a new trial. SA 12, 17.
Motion for a New Trial
On July 3, 2007, Cormier, through new counsel, filed a motion for a new trial, as well аs a request for an evidentiary hearing on the motion. SA 14, 262-99. The motion was supported with an affidavit from Cormier himself explaining his ac
Cormier appealed the denial of his motion for a new trial, and the appeal was consolidated with his direct appeal. SA 15, 18. In his direct appeal, Cormier challenged the limitation on his cross-examination of GJ, contended that his decision not to testify was not a knowing and intelligent waiver, challenged the denial of his motion to suppress, challenged the denial of his motion to sever, and challenged the trial judge’s refusal to hold an evidentiary hearing. SA 25-27. As noted above, the Massachusetts Appeals Court issued its decision affirming the denial of the motion for a new trial and affirming the convictions on August 20, 2009. The Massachusetts Supreme Judicial Court denied further appellate review on December 3, 2009. Commonwealth v. Cormier,
Additional facts will be provided below where appropriate.
III. ANALYSIS
A. Standard of Review
The standard of review to be applied to Cormier’s habeas corpus petition is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”). The standard allows a federal court to grant a writ of habeas corpus only if the underlying state court аdjudication “(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 proceeding.” 28 U.S.C. § 2254(d). In undertaking this analysis, “a habeas court must determine what arguments or theories supported the state court’s decision, and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Wetzel v. Lambert, — U.S. -, -,
A writ of habeas corpus is only appropriate “under the ‘contrary to’ clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone,
With respect to factual findings, “the AEDPA sets out a separate and exacting standard applicable to review of a state court’s factual findings.” Pike v. Guarino,
Finally, a writ of habeas corpus does not lie for errors of state law. “Federal habeas is not an ordinary error-correcting writ.” Nadworny v. Fair,
Applying these principles to the instant case compels the conclusion that the petition for a writ of habeas corpus should be denied.
B. Limitation on Cross-Examination
Cormier contends that the trial judge improperly cut off his cross-examination of GJ, in violation of his constitutional rights, when he was precluded from asking whether a man she had identified as her boyfriend was her pimp. As he describes his claim:
GJ, one of the two alleged victims, was a key prosecution witness. During her cross-examination, the defense sought to*293 challenge her veracity by establishing that one of the men who was with her when Mr. Cormier was arrested was her pimp. Defense counsel intended to attack her credibility by using this fact as a critical stepping'stone towards a confrontation in which he would seek to elicit from her facts that aligned with Mr. Cormier’s account of the interaction, facts that contradicted the version of events she had given on direct examination. By cutting off all inquiry referring to a pimp and constraining counsel’s examination in this key area,’ the trial court rendered this line of examination a nullity and violated Mr. Cormier’s Sixth Amendment confrontation right.
Pet. Mem. at 8-9.
This argument is without merit. As an initial matter, the record does not support Cormier’s contention that the trial judge “constrained” the cross-examination, other than to preclude the direct question of whether GJ’s boyfriend was, in fact, her pimp. Dеfense counsel was free to explore the events leading up to and surrounding her altercation with Cormier. Moreover, the ruling by the Appeals Court rejecting this claim was not contrary to or an unreasonable application of Supreme Court law.
1. Facts Relating to the Cross-Examination
The relevant facts, as found by the Appeals Court, are as follows:
During direct examination the second victim [GJ] testified that while she was at the hospital after the incident, her boyfriend and his friend came to visit her. They were outside the hospital smoking when the defendant drove by. She asked the men to follow him. A chase ensued, and both cars were stopped by police. She yelled that she had been attacked and asked the police to check the defendant’s arm where she had bitten him during the struggle. When the police saw the bite, they arrested the defendant.
Defense counsel cross-examined the second victim and elicited her acknowledgment that she had lied to the police about getting a ride to her mother’s house from the defendant, and that she also had lied about where the defendant had picked her up. After counsel asked the victim to describe her boyfriend and his friend, he asked “were either one of these men your pimp?” The Commonwealth objected, and a lengthy sidebar ensued.
The judge stated that counsel had to have a good faith basis, that is, admissible evidence for this question, otherwise all he was doing was embarrassing the witness. After discussion with the judge who showed skepticism of counsel’s claims, counsel, based on information from the defendant and from his roommate’s testimony at the grand jury, made a proffer as follows:
“[A]bout an hour before she showed up at the hospital my client ran into somebody that he believed to be her pimp and her in that general vicinity, and there was a discussion about the payment of money, and that during that discussion which, you know, there was an argument, that she got into the car, she tried to get the keys out of the ignition to disable the car, and when he was trying to push her out which he indeed did push her out, she bit him in the arm and he drove away, and that he, you know, vehemently denies that he took her down to South Boston and beat the living hell out of her.”
The judge in relevant part responded:
“Again, it seems to me ... there’s no reason to ask whether somebody is a pimp. You can ask her wheth*294 er there was any involvement, you know, with the boyfriend or the friend and the defendant before she got into the car. You can ask that, and then you can explore if you believe that there is an expiration [sic], that you, you know, you have a good faith basis for doing that, and frankly thus far it doesn’t make any logical sense to me, this story, but you can explore. If you’ve got, you know, some reason to believe that some other gentleman of some size did something with the defendant beforehand, you know, it can’t be, again, spun out of nothing.”
The judge reiterated that she would not let counsel use the term pimp, “but you can ask whether there’s an interaction beforehand, because that’s what you’re trying to demonstrate.” After the sidebar conference, counsel asked the witness a number of questions about the time she was picked up, and he then asked the questions set forth in the margin[FN3] to elicit if there had been a confrontation between the defendant and her boyfriend and her or if she had seen the defendant with another man prior to being picked up. Her answer was “no.” Counsel then turned to another subject.
Q: “Other than going to South Boston you say you went to South Boston with my client, correct?”
A: “Yes.”
Q: “And you think that was sometime between nine and eleven?”
A: “Yes.”
Q: “And before that time that you went to South Boston with just him, according to your testimony, did you see him while you were in the presence of another man?”
A: (No response)
Q: “Do you understand my question?”
A: “If before I saw him I was with somebody else and saw him?
Q: “Right.”
A: “Like another man?”
Q: “Right.”
A: “No.”
Q: “Were there any men with you or in your vicinity near Tyler Street where you were working before you got in the car with Mr. Cormier, as you say, and went to South Boston?”
Prosecutor: “Objection.”
The Court: “Sustained, form. Well, do you want to withdraw the objection? She answered no to the question. I’ll let the question in.”
Q: “Did you get into Mr. Cormier’s car and try to take the keys out of his car in the area of Chinatown?” A: “No.”
Cormier,
The State Court Decisions
Cormier challenged the court’s ruling limiting his cross-examination in connection with his motion for a new trial. In rejecting his claim, the trial judge applied the standard that an “accused in a criminal case is guaranteed the fundamental right to confront and cross-examine the witnesses against him.” SA 395. While the judge acknowledged that she had erred in asking counsel to lay an evidentiary foundation based on admissible evidence before asking whether either of the men with GJ was a pimp, she further concluded that a review of the transcript confirmed that her restriction was a limited one and precluded counsel only from referring to the men as pimps. SA 396-97. Cormier’s counsel was not precluded from inquiring about “the circumstances of GJ’s work, who she was associated with, and the extent of their influence and control['.]” SA 397. Nor was counsel limited in questioning the witness about the events surrounding the altercation, or the witness’ bias or motives.
The Appeals Court agreed that there had not been a violation of Cormier’s constitutional rights. After reviewing all the facts, the Court ruled as follows:
We have carefully read the transcript of the sidebar conference. We recognize that the judge showed skepticism as to the whole inquiry and stated the story didn’t “make any logical sense” to her, was “absolutely implausible,” and that counsel was, therefore, in a sensitive position and fearful of antagonizing the judge. Nevertheless, we agree with the judge’s reading of the transcript. She was rightly concerned that counsel have a reasonable basis for the questions, see Commonwealth v. Johnson, 441 Mass, at 5 n. 4,802 N.E.2d 1025 , and she also was properly concerned that the witness not be humiliated. See Commonwealth v. Johnson,431 Mass. 535 , 540,728 N.E.2d 281 (2000) (“[t]here is a duty to protect [a witness] from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate”), quoting from Alford v. United States,282 U.S. 687 , 694,51 S.Ct. 218 ,75 L.Ed. 624 (1931).
The defendant was not denied his fundamental right to confront and cross-examine the witnesses against him. The judge did not foreclose all inquiry into a subject that could show bias or prejudice. See Commonwealth v. Martin,434 Mass. 1016 , 1017,750 N.E.2d 1009 (2001). Moreover, even if the judge committed error, the defendant has not*296 shown prejudice. In view of the negative response of the second victim to counsel’s questions after the sidebar colloquy, see note 3, supra, it is highly unlikely that further questioning would have yielded different testimony. “[A] defendant must show a reasonable likelihood that, had the cross-examination been permitted to continue without interruption, testimony of more than minimal value to the defendant might have been forthcoming.” Commonwealth v. Fordham,417 Mass. 10 , 19-20,627 N.E.2d 901 (1994).
Cormier,
2. Standard of Review
As an initial matter, the parties dispute the appropriate standard of review of the Appeals Court’s ruling. Cormier contends that this court should conduct a de novo review since the state court did not adjudicate his federal constitutional issue, while the Commonwealth contends that the state court’s decision is entitled to deference because the state court did adjudicate his federal claim. While the outcome would be the same under either standard, this court finds that the deferential standard of review is appropriate.
Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State Court proceedings” unless the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, or (2) was based on an unreasonable determination of the facts. Thus, “[b]y its terms § 2254 bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in § 2254(d)(1) and (d)(2).” Richter,
In the instant case, in his motion for a new trial, Cormier had presented the issue concerning the limitation on cross-examination as a violation of his “right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by art. 12 of the Commonwealth’s Declaration of Rights, to confront adverse witnesses!.]” SA 277. Similarly, in his direct appeal Cormier referred to both his state and federal constitutional rights. See, e.g., SA 53. In arguing his claims, however, Cormier did not distinguish between his federal and state constitutional rights. Neither did the trial court or Appeals Court. SA 395-99; Cormier,
In the instant case, as detailed below, the same results would be reached under either a de novo or deferential standard. Nevertheless, to the extent that the standard of review is- significant, in this case a deferential standard is appropriate as the Appeals Court should be deemed to have addressed Cormier’s federal constitutional claim on the merits. It is clear that the state court’s decision “was neither a disposition on procedural grounds nor a summary disposition in which the court simply remained silent on the issue.” Clements,
AEDPA’s trigger for deferential review is adjudication, not explanation. When a state court has truly avoided (or merely overlooked) the petitioner’s fedеral claim, a federal court may step into the breach and review de novo. But judicial opacity is a far cry from judicial avoidance. It is the result to which we owe deference, not the opinion expounding it.
Id. at 55-56 (internal citation omitted). The First Circuit has rejected the application of “an inflexible rule” that “would elevate form over substance to impose some sort of requirement that busy state judges provide case citations to federal law ... before federal courts will give deference to state court reasoning.” Id. at 53-54 (internal quotation omitted). “The real question. is not whether the state court opinion cited to any federal cases, but whether the opinion addresses a fairly raised federal issue.” Id. at 54.
In the instant case, a fair reading of the state court decision is simply that there was no need to distinguish between Cormier’s federal and state constitutional rights as- they were co-extensive on the issue presented.- This conclusion is supported by the Appeals Court’s citation to Commonwealth v. Martin,
Further evidence that the Cormier court addressed the petitioner’s federal constitutional claim is found in the Appeals Court’s citation to Commonwealth v. Johnson,
The right to cross-examine is not without limits, and it “must be accommodated to other legitimate interests.” Commonwealth v. Clifford,374 Mass. 293 , 305,372 N.E.2d 1267 (1978). The Supreme Court has said that reasonable limits may be placed on cross-examination “based on concerns about, among оther things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,475 U.S. 673 , 679,106 S.Ct. 1431 ,89 L.Ed.2d 674 (1986). The Court has also noted that “[tjhere is a duty to*298 protect a witness] from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate.... ” Alford v. United States,282 U.S. 687 , 694,51 S.Ct. 218 ,75 L.Ed. 624 (1931).
Johnson, 431 Mass, at 540,
3. Controlling Federal Law
The parties agree that the controlling federal law is detailed in the case of Delaware v. Van Arsdall,
“The first question to be asked under the Van Arsdall test is whether the limitation prejudiced the examination of that particular witness. In other words, absent the limitation, would the jury have received a ‘significantly different impression’ of the witness’s credibility?’ ” DiBenedetto,
Cormier describеs the effect of the judge’s ruling on his case as follows:
Here, the jury would “have received a significantly different impression of’ GJ’s credibility if counsel had been permitted to ask whether Mr. Buford was her pimp and to follow up concerning the earlier interaction between her, her pimp, and Mr. Cormier. DiBenedetto,272 F.3d at 10 . If GJ had admitted that Mr. Buford was her pimp, it would have muddied her previous statement that he was her boyfriend, and would have highlighted the issue of Mr. Buford’s role for the jury. Mr. Buford was present at the time that Mr. Cormier was arrested, but he was rarely mentioned by any of the witnesses. However, he played a key role in Mr. Cormier’s account of the incident, pointing to the “importance of the evidence to an effective defense.” White v. Coplan,*299 399 F.3d 18 , 24 (1st Cir.2005), cert. denied,546 U.S. 972 ,126 S.Ct. 478 ,163 L.Ed.2d 384 . If GJ had admitted that Mr. Buford was her pimp, she may well have admitted other facts that could have aligned with Mr. Cormier’s narrative. GJ’s denial that Mr. Buford was her pimp would have been a detriment to her credibility, since a police witness testified that GJ told him Mr. Buford was her pimp. No matter how GJ answered the question, it would have given the jury a significantly different image of her.
Pet. Mem. at 16-17 (emphasis added). This argument is unpersuasive. The jury knew that GJ was a prostitute, and her credibility was challenged during cross-examination. Defense counsel was allowed to explore the circumstances surrounding the incident so as to see whether it “aligned with Mr. Cormier’s narrative.” GJ denied the prior altercation between herself, Mr. Buford and Cormier. There is no logic to the argument that if GJ had admitted that Buford was her pimp, and not her boyfriend, then she would have admitted that she had had a previous altercation with Cormier.
Moreover, the Appeals Court’s conclusion that there was no harm is fully supported by the record. This court would reach the same conclusion regardless whether a de novo or deferential standard was applied. In determining whether an error was harmless, the “correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall,
It is only in “extreme cases” where the exclusion of evidence will result in the finding of a constitutional violation, and “not every ad hoc mistake in applying state evidence rules” supports the granting of habeas relief. Brown v. Ruane,
C. Cormier’s Waiver of His Right to Testify
After the Commonwealth rested, “the trial judge conducted a colloquy with [Cormier] to ensure that his waiver was voluntary, knowing and intelligent. She asked him if he was aware of his absolute right to
1. Facts Relating to the Decision Not to Testify
Cormier’s argument is contained in the affidavit he submitted to the trial judge in support of his motion for a new trial. Therein, he attested that he always wanted to testify, although his counsel had advised against it. SA 157, ¶ 20. He further contended that while he understood that it was his choice as to whether to testify or not, he did not understand that, following the judge’s ruling on the examination of GJ, his side of the story would not be presented to the jury if he did not testify. SA 157-58, ¶¶ 20-21. As he explained:
If my attorneys had told me that the jury would not get to hear my version of what happened unless I testified, there is no way I would have told the judge I wasn’t going to testify. I had been struggling over what to do even with my attorneys having told me I shouldn’t testify, and I nearly went against their advice. I felt strongly that I needed to tell my side of the story. Had I known my testimony was the only way to tell .the jury what really happened, the decision of whether or not to testify would have been easy for me to make, and I would have testified.
SA 158, ¶ 21. According to Cormier, once he realized that the jury was not going to hear his side of the story, he fled. See id. ¶ 22. Attorney Butters attested in his affidavit in connection with the motion for a new trial that he had “forcefully advised [Cormier] not to testifyf,]” and that he eventually recognized that this was the wrong advice since, given the limitations on his cross-examination of GJ, “the trier of fact was deprived of hearing any evidence that would have provided information essential to understanding how Mr. Cormier was bitten on the arm and why he was chased by [GJ] and her pimp in a car. I should have recognized at the time that providing explanations for these seemingly damning facts was essential.” SA 167, ¶ 16. He further.claimed:
My advice to Mr. Cormier regarding whether he should testify was based upon my general, past experience in criminal trials. I never advised him of the ramifications of not testifying in light of the Court’s restriction on my cross-examination. I did not revisit my advice that he should not testify after my cross-examination was restricted. Nor did I discuss the choice of whether or not he should testify with reference to the particular circumstances of his case as they had developed at his trial.
SA 167, ¶ 17.
In denying the motion for a new trial, the trial judge recognized that “[t]he defendant’s right to testify on his own behalf is fundamental, and a strict standard applies to the waiver of that right.” SA 400. As she ruled further:
During trial, as noted, this Court conducted a colloquy with Cormier to ensure that his waiver was voluntary, knowing, and intelligent, although such a colloquy is not required in Massachusetts on either constitutional grounds or as. appropriate ■ to the fair management*301 of a trial. See Commonwealth v. Glacken,451 Mass. 163 , 170,883 N.E.2d 1228 (2008). Cormier responded on the record that he understood his right to testify or not testify and that it was his decision to make. He expressed no ambivalence about whether or not to testify. I do not credit Cormier’s statement in his affidavit that he would have testified had he realized that his attorneys were not going to be able to cross-examine G.J. to get his side of the story before the jury. “It can reasonably be inferred that the defendant, after listening to the testimony of the Commonwealth witnesses, realized that the jury would not hear his version of the events unless he placed it before them.” Commonwealth v. Degro, 432 Mass, at 337,733 N.E.2d 1024 . Such is the case regardless of the fact that defense counsel did not specifically revisit the question of Cormier’s testifying with reference to the court’s evidentiary rulings and how that affected their strategy. Cf. Id. (rejecting defendant’s claim that waiver of right to testify was not knowing and intelligent where defendant, knowing that self-defense claim was his best defense and that other witnesses had not presented evidence supporting such a claim, failed to inform court of desire to testify when given opportunity at the close of evidence). Thus, Cormier has not met his burden of proving that his waiver of the right to testify was invalid.
SA 400-01. The Appeals Court, after reviewing Cormier’s argument and the trial judge’s decision, ruled that the trial judge had “acted within her discretion in not crediting this portion of the defendant’s affidavit.” Cormier,
2. Applicable Federal Law
“The right to testify on one’s own behalf at a criminal trial has sources in several provisions in the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ ” Rock v. Arkansas,
3. The Adjudication of Facts Without an Evidentiary Hearing
Cormier contends that the state court’s conclusion that his waiver of his right to testify was knowingly and intelligently made “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.” Pet. Mem. at 22-23 (quoting 28 U.S.C. § 2254(d)(2)). According to Cormier, the error was compounded by the fact that the trial court rejected Cormier’s affidavit without аn evidentiary hearing. Pet. Mem. at 23. Again, this argument is not persuasive.
The colloquy during which Cormier waived his right to testify took place after the Commonwealth had rested. SA 243. Even assuming that the trial judge had erred in limiting the cross-examination of GJ, but see discussion supra, at that point GJ had denied having had an altercation with Cormier apart from the assault. At that moment, when it was time for the defendant to put on his case, his version of events had not been put before the jury. Since he has not suggested that there were any other witnesses- besides himself who could testify to his version of events, it was not unreasonable for the trial judge to reject Cormier’s assertion that he did not understand that his side of the story would
Consideration of Cormier’s trial counsel’s affidavit does not warrant a different conclusion. Attorney Butters does not claim that he had other witnesses to testify as to the alleged altercation between Cormier, Buford and GJ. See SA 166-67. Counsel does not (and could not) contend that he (counsel) did not understand, after the Commonwealth had rested, that Cormier’s story had not been presented to the jury. Id. Rather, Attorney Butters attested only that “[w]hen it came time for a final decision I forcefully advised [Cormier] not to testify[,]” and that he did not “revisit [his] advice that [Cormier] should not testify” after his cross-examination of GJ. SA 167, ¶¶ 16, 17. Attorney Butters’ affidavit is silent as to whether of not Cormier understood that his side of the story was not going to be presented to the jury after the Commonwealth had rested, and does not challenge the trial judge’s finding that it was appropriate to infer that Cormier, having sat through the Commonwealth’s case, understood that his version of events was not being put to the jury.
“Credibility is quintessentially a matter of fact, reserved in almost every circumstance for the trier.” Sanna v. Dipaolo,
The fact that the trial judge did not hold an evidentiary hearing does not alter this coúrt’s conclusion. As an initial matter, Cormier has not cited any constitutional right to an evidentiary hearing.
The First Circuit held that the trial judge had abused his discretion in denying the request for a hearing since Owen’s allegations were not implausible, he would be entitled to relief if the allegations were true, and “a final determination of the merits of Owens’ claim would be best served by greater development of the facts, many of which the Government disputes.”' Id. at 60-61. The Court also held, however, that a hearing is not' always necessary, even in connection with a § 2255 petition. Id. at 57. Thus, the Court recognized that no hearing was necessary when “the movant’s allegations, even if true, do not entitle him to relief, or when the movant’s allegations need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible.” Id. (quoting David v. United States,
Finally, Cormier has moved that this court grant him an evidentiary hearing in connection with his habeas petition. There is no basis for this court to do-so. “AEDPA’s statutory scheme is designed to strongly discourage” state prisoners from submitting new evidence in federal court. Cullen v. Pinholster, — U.S. -, -,
4. Ineffective Assistance of Counsel
Finally, in his memorandum, Cormier describes the standard to assess claims of ineffective assistance of counsel as set forth in Strickland v. Washington,
For all these reasons, Cormier’s contention that his waiver of his right to testify was not knowingly and intelligently made does not warrant the granting of habeas relief.
D. Denial of the Motion to Suppress
A month after her alleged assault, EW was shown an array of eight photographs, including that of Cormier. Cormier,
1. Facts Relating to the Motion to Suppress
In the trial court, Cormier moved to suppress the line-up identification and all subsequent in-court identifications. Cormier argued that his “rights have been violated under the Article of the Massachusetts Declaration of Rights and the fourth, fifth and fourteenth amendment to the United States Constitution” as a result of the line-up identification that “was so impermissibly suggestive that it has created a substantial likelihood of irreparable misidentification[.]” SA 196. After two days of hearings, the motion judge orally issued findings and rulings from the bench. SA 193-216. He concludеd that “the defendant has not met his burden of showing by preponderance of the evidence, when the totality of the circumstances are considered, that [EW] was subjected by the State to an identification that was unnecessarily suggestive and conducive to irreparable misidentification, such as would deny [Cormier] of due process of law, and having made that finding then the motion to suppress must be denied.” SA 215.
The Appeals Court “agreed” with this conclusion of the motion judge. Cormier,
The defendant claims that the judge’s findings were clearly erroneous and that the line-up was unduly suggestive. The judge stated:
“after looking at the video, I see that they were all of similar clothing, they were all white men. One I say was somewhat older, but none of them were completely out of place in the lineup as far as age goes. But the critical thing was that there was no specific characteristic that made the defendant stand out among the others, although there are always individual characteristics that make each one of us stand out.”
We have also looked at the videotape and conclude, based on our own review, that the men depicted possessed reasonably similar features and characteristics, including hair or absence thereof, and that their clothing was also similar. See Commonwealth v. Silva-Santiago, 453 Mass, at 795,906 N.E.2d 299 . That the defendant was the only person in the line-up from the photo array shown five months earlier does not taint the line-up. Cf. Commonwealth v. LaFaille,430 Mass. 44 , 48,712 N.E.2d 590 (1999) (duplication of defendant’s photograph in an array will not by itself require suppression of identification).
In denying the motion, the judge considered the relevant factors, finding most critical that the victim had an independent source for her identification. She had the opportunity to observe the defendant face to face for twenty-five minutes at the time of the crime and, before that, had seen him driving by several times that evening.... The lighting conditions were good. She testified that*307 she would never forget his face, and despite vigorous cross-examination by the defendant’s counsel, she remained positive in her identification. That the defendant was somewhat shorter than the other men in the line-up is not significant as thе victim did not rest her identification on his height, but rather on his face.
Id. Based on all this, the Appeals Court agreed that Cormier’s due process rights had not been violated. Id.
Cormier argues that the line-up was “plainly suggestive” because “Mr. Cormier was the only balding man with brown hair” and was the “only balding man without facial hair.” Pet. Mem. at 28. He was also the shortest man in the line-up “by a significant margin.” Id. Cormier also was the only man in the line-up who had also been in the photo array, and EW had selected a balding man without facial hair from the photo array. Id. at 29. Moreover, according to Cormier, the victim really had not had a good opportunity to observe her attacker since “during much of this time she was being beaten and struggling to escape.” Id. Cormier also points out discrepancies between the victim’s pri- or description of her attacker and Cormier. Id. at 29-30. For all these reasons, Cormier argues, the line-up “identification was obviously suggestive and highly prejudicial, and its admission at trial violated Mr. Cormier’s rights to a fair trial under the Due Process Clause.” Id. at 30.
2. Applicable Federal Law
In determining whether an “identification and the circumstances surrounding it failed to comport with due process requirements^]” a court must assess “the likelihood of misidentification[.]” Neil v. Biggers,
3. Standard of Review
Cormier again argues that he is entitled to de novo review, because the state court did not address his federal constitutional claim. This argument is unpersuasive. As quoted above, the motion judge expressly recognized that Cormier was asserting both his state and federal constitutional rights. SA 196. Nevertheless, both the motion judge and the Appeals Court expressly concluded that Cormier’s “due process rights” had not been violated. SA 215; Cormier,
4. Application of Federal Law
Cormier has not' established that the state court’s decision was an unreasonable application of clearly established federal law. As the Commonwealth persuasively argues, the Appeals Court’s conclusion that Cormier had not met his burden of proving that the line-up identification was “unnecessarily suggestive and conducive to irreparable misidentification, such as would deny him of due process of law”
cannot be deemed objectively unreasonable given the state courts’ findings that: (1) there was no specific characteristic that made petitioner stand out among the others in the line-up; (2) the men depicted in the videotape of the line-up possessed reasonably similar features and characteristics, including hair or absence thereof, and their clothing was also similar; (3) the victim had the opportunity to observe petitioner face to face for twenty-five minutes at the time of the crime and, before that, had seem him driving by several times that evening; (4) the lighting conditions were good; and (5) EW testified that she would never forget his face and remained positive in her identification despite vigorous cross-examination.
Resp. Mem. (Docket No. 24) at 20 (internal punctuation omitted). The fact that there were some differences in the individuals depicted does .not render the array unduly suggestive where, as here, “there is a high degree of similarity” among the men and the array did “not in any way draw suggestive attention” to Cormier. See U.S. v. Brennick,
Finally, to the extent that Cormier is arguing that the state cоurt’s assessment of the suggestiveness of the line-up was wrong, and that the “courts finding was objectively unreasonable in light of the evidence presented in the trial court proceeding!;,]” he has not “presented clear and convincing evidence sufficient to overcome the presumption of correctness we afford state court factual findings in the habeas context.” John v. Russo,
E. Denial of the Motion to Sever
Cormier contends that the failure of the trial court to sever the charges involving EW and GJ, a decision that was affirmed on appeal, resulted in an unfair trial in violation of his due process rights. According to Cormier, not only were the two incidents unrelated, and involved different witnesses, but he had different defenses to both charges. In the case of EW he contends that there was a misidentification by the alleged victim, while in the case of GJ he contends that he had a physical fight with her pimp which resulted in the bruising about which she complained. By trying the cases together, Cormier argues, the court impermissibly allowed the jury to hear evidence regarding the character and
For the reasons detailed herein, this court concludes that Cormier has failed to state a claim for habeas relief. As an initial matter, there is no clearly established Supreme Court law setting forth any standard governing a motion to sever. Moreover, Cormier has failed to establish that the state court decision was an unreasоnable application of clearly established federal due process law.
1. Facts Relating to the Motion to Sever
As described above, Cormier was originally charged with attacks on three prostitutes. The prosecution filed a motion for joinder of all charges for trial. SA 121. Cormier opposed the joinder, and filed a motion to sever the claims relating to the July 24, 2000 alleged attack on the first alleged victim, EW, acknowledging that there were sufficient similarities between the August 18, 2000 alleged attack on CS, and the September 10, 2000 alleged attack on GJ to try those charges together. SA 217.
In allowing the joinder of the charges, the motion judge acknowledged that the court “must weigh the defendant’s right to a fair and just trial with the judicial efficiency achieved through joinder.... If the offenses are sufficiently related, the Court should join the indictments unless doing so is against the best interests of justice.” SA 218 (internal citations omitted). Applying this standard, the motion judge concluded that the three attacks in a three-month period, each beginning in the same area of Chinatown and each taking place in the same vehicle, were “sufficiently related in time and location to establish a temporal nexus.” SA 219. She also found that there was evidence of a common scheme or plan. SA 218. As the motion judge concluded:
There is a schematic nexus among the indictments at bar: the victims were all prostitutes; their assailant picked them up in Boston’s Chinatown[FN1] in the early morning hours; he approached the victims in a 1993 blue Ford Explorer and made arrangements for a “date”; the victims entered the assailant’s car; the assailant drove the victims to secluded locations in downtown Boston; he became enraged when the women asked him to wear a condom; almost immediately upon arrival at the secluded locations, he began punching the women in the face repeatedly and demanding sex; he sexually assaulted the women in the passenger’s seat of his vehicle; when the victims struggled, he told them he was going to continue to rape and beat them[FN2] ; and he pursued the victims after they escaped from his vehicle. Taken in their totality, these similarities point to a unique pattern of conduct allegedly engaged in by the Defendant.
SA 218-19.
On the day of trial, the charges against the second alleged victim, CS, were dismissed as she refused to cooperate. Cormier then renewed his motion to sever. SA 221. A hearing was held before the trial judge, who was not the same judge
The Appeals Court affirmed, finding that the trial judge had not abused her discretion in joining the charges given their “factual similarities and closeness of time and space.” Cormier,
The judge’s decision was warranted. Both victims were prostitutes, both were picked up by the defendant in Chinatown in a Ford Explorer, both were driven to secluded locations where they were beaten on the face with the defendant’s fists.
M
Cormier does not address the similarities between the crimes at all. Pet. Mem. at 30-33. Rather, he argues, the Appeals Court improperly considered him to be a link between both crimes, and that it was not unusual for prostitutes to be “picked up in an area known for prostitution” and driven to a secluded place, or for victims of assault to be hit in the face. Id. at 31-32. He further argues that it was prejudicial to try the cases together because the evidence of one crime would not likely have been admissible in the trial of the other, “and it is likely that the existence of two charges greatly increased the jury’s willingness to convict.” Id. at 33. Cormier concludes that because of this prejudice, his due process rights were violated.
2. Applicable Federal Law
As an initial matter, there is no Supreme Court law on point addressing the situation presented to the Cormier court. “A threshold determination that no holding of the Supreme Court required application to the factual context presented by the petitioner’s claim is dispositive in the habeas analysis.” Brown v. Ruane,
Moreover, the Supreme Court has noted that “[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his [constitutional] right to a fair trial.” United States v. Lane,
3. Standard of Review
Cormier contends that this court should undertake a de novo review of the decision to allow the joinder of the charges because the state courts did not address his federal constitutional claims.
4. Application of Federal Law
A habeas court “cannot deem a state court’s application of federal law unreasonable when federal courts — typically, the circuit courts of appeals — regularly resolve cases in a similar fashion.” Bui v. DiPaolo,
Webber v. Scott, relied on by Cormier, provides further support for this conclusion. There Webber was tried on 27 counts of sexual misconduct involving seven different victims. Following the affirmance of his conviction, he filed a habeas petition challenging the joinder of all the charges. He argued that “he was denied a right to a fair trial because the offenses enumerated in Counts 19-27 were supported by witnesses with greater credibility than the witnesses supporting the charges in Counts 1-18 and, furthermore, that the allegations in Counts 1-18 involve more explicit sexual acts than the ‘horseplay’ in the allegations in Counts 19-27.” Webber,
Finally, the First Circuit has recognized that, “[d]espite the potential prejudice,” habeas relief is not appropriate even if “much of the evidence” of one charge would have been irrelevant and inadmissible in a separate trial on another, joined, charge. Jervis v. Hall,
IV. CONCLUSION
For all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the habeas petition be DENIED without an evidentiary hearing.
November 30, 2012.
Notes
. The indictment also included counts connected to an alleged attack against a third
. Cormier failed to appear for trial on February 7; the court ordered the trial to continue without him. He was located and brought to court on April 4, 2005.
. At the close of the Commonwealth's case, the court issued a directed verdict on one count of assault and battery with a dangerous weapon, and one count of indecent assault and battery on a person over the age of fourteen.
. Cormier was sentenced to 6-7 years for rape, a consecutive sentence of 3-5 years for assault with intent to rape another victim, and 2 years for the six counts of assault and battery, to be served concurrent with the rape sentence. He is presently incarcerated.
. The Respondent has filed a Supplemental Answer ("SA”) containing the record below as Docket No. 13. Additional transcripts were filed as Docket No. 26.
. The underlying facts as found by the state courts are entitled to a presumption of validity under 28 U.S.C. § 2254(e)(1). See Gunter v. Maloney,
. While in his affidavit Cormier states this occurred in September 2000, the indictment relating to CS dates the incident as August 18, 2000 and the August date was adopted by Cormier's counsel in connection with his memorandum in support of his habeas petition. See SA 149, ¶ 2; Pet Mem. at 3.
. As the trial judge noted, "[t]he substance of Thompson’s affidavit is virtually identical to that of Attorney Butters.” SA 394 n. 3. ■
. In his habeas petition, Cormier has not challenged the scate courts' rejection of his alleged alibi defense.
Q: "Was there a confrontation between either you and your boyfriend or any other man that occurred between you and your boyfriend or you and somebody else on the one hand, and Mr. Cormier before you went off to South Boston with him?”
The Court: “I’m afraid I — ”
Counsel: “I’m sorry, was that a bad question?”
The Court: “Just try it again because I didn’t quite get the question.”
. The transcript of the sidebar conference and GJ's testimony can be found at SA 227-41.
. Attorney Butters submitted an affidavit contending that he believed that his cross-examination had been limited by the trial judge to “the single, ultimate question of whether there was some ‘interaction’ prior to the time my client supposedly drove off with Ms. GJ[.]” SA 163, ¶ 10. The trial judge, in denying the motion for a new trial, found that “[cjounsel could not reasonably have concluded from the sidebar” that he was so limited. SA 397 at n. 4. The Appeals Court “agree[d] with the judge’s reading of the transcript.” Cormier,
. Cormier contends that "the state court ruling must be reviewed de novo because the appeals court never grappled with the federal constitutional right at stake.” Pet. Mem. at 24. Although the state courts did not cite the federal constitutional standard in analyzing this claim, they did apply the same standard. See Cormier,
. As detailed below, while an evidentiary hearing is the norm in the case of a federal prisoner’s habeas petition under 28 U.S.C. § 2255, such hearings are strongly discouraged in connection with a state prisoner’s habeas petition.
. Cormier apparently suggested to the trial judge in connection with his motion for a new trial that counsel's handling of the issues relating to GJ’s testimony might constitute ineffective assistance of counsel, but that argument was rejected by the trial judge and has not been pursued in the habeas petition. See SA 399 n. 6.
Two of the victims were picked up on Tyler Street, the other on Oak Street in Boston’s Chinatown.
The attacker told the first victim, “I’m going to get it anyway.” He told the second victim that she liked being raped. He told the third victim that, if she did not have sex with him, he would “beat it out of her.”
. While there was some indication that the victims differed as to whether the vehicle was "greenish blue” or "black or like green,” they both agreed that it was a Ford Explorer. See Cormier,
. Cormier first cited his Fourteenth Amendment due process rights in his Application for Further Appellate Review following the Appeals Court decision. See Pet. Mem. at 31 n.4.
. The court also noted that “Webber testified in his own defense and his defense was the same to all charges: denial of involvement.” Id. In the instant case, while Cormier contends that he had different defenses, as noted above he did not testify and did not present evidence of such defenses through the testimony of any witnesses.
. The parties are hereby advised that under the provisions of Fed.RXiv.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs.,