JORGE QUINTANILLA, Petitioner, Appellant, v. RAYMOND MARCHILLI, Superintendent, NCCI - Gardner, Respondent, Appellee.
No. 20-1496
United States Court of Appeals For the First Circuit
November 2, 2023
Hon. Nathaniel M. Gorton, U.S. District Judge
Before Barron, Chief Judge, Lynch and Howard, Circuit Judges. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Eduardo Masferrer, with whom Masferrer & Associates, P.C. was on brief, for appellant. Susanne G. Reardon, Assistant Attorney General, with whom Maura Healey, Attorney General, was on brief, for appellee.
The Massachusetts Appeals Court (“MAC“) affirmed the state trial court‘s denial of a new trial in a summary decision under MAC Rule 1:28, concluding that Petitioner‘s trial counsel had not performed deficiently with respect to his first two claimed bases for relief and that the failure to interview potential defense witnesses had not prejudiced Petitioner. See Commonwealth v. Quintanilla, No. 16-P-1556, 2018 WL 1040522, at *3-4 (Mass. App. Ct. 2018) (“Memorandum and Order Pursuant to Rule 1:28“).
Petitioner then sought habeas relief in the U.S. District Court for the District of Massachusetts, again raising his ineffective assistance claims. The district court denied
I.
A.
“We take the facts largely as recounted by the [last reasoned state court] decision . . . supplemented with other record facts consistent with [those] findings.” Field v. Hallett, 37 F.4th 8, 12 (1st Cir. 2022) (internal quotation marks omitted) (quoting Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009)).
The victim of Petitioner‘s abuse was, as she testified at Petitioner‘s trial, born in El Salvador on March 25, 1990, and in 2003 immigrated to the United States to live with family. She did not have legal immigration status at the time. Shortly after arriving in the country, she met Petitioner, who first forced her to have sex with him against her will at her half-sister‘s house
Thereafter, also in February 2004, the victim‘s and Petitioner‘s families decided that the victim would move into Petitioner‘s family home. The victim testified at trial that she did not want to move in with Petitioner and that Petitioner told her he had bought her from her father for $100. She resided with Petitioner from February 2004 to June 2008.2
The victim testified she was treated as a prisoner or “slave” during that time. Petitioner forced her to take part in nonconsensual anal, oral, and vaginal intercourse multiple times per week. He also abused her physically (for example, by beating her when she refused sex or was out of the house without permission, shooting her with a BB gun, and cutting her hair with a knife) and emotionally (for instance, by threatening to report her to immigration authorities or to purchase a real firearm and shoot her with it). The victim was required to perform chores for Petitioner and his family.
On the advice of shelter workers, the victim sought and obtained a restraining order against Petitioner. As part of that process, she met with Sergeant Michael Mulcahy of the Somerville Police Department on June 17, 2008. The victim told Sergeant Mulcahy that Petitioner had abused her physically. Sergeant Mulcahy took additional photographs of the victim‘s injuries.
Some time later, the victim called Flores from the women‘s shelter where she was staying and stated that Petitioner had sexually abused her for years, including by charging money for other men, among them his brother, Moris Quintanilla, to have sex with her.3 The victim also told Flores during the call that
On October 31, 2008, the victim participated in a videorecorded Sexual Assault Investigative Network (“SAIN“) interview with Sergeant Mulcahy, an unidentified forensic interviewer, and an interpreter. The victim recounted during that video recorded session years of emotional, physical, and sexual abuse by Petitioner. She also alleged that Petitioner‘s mother had practiced witchcraft against her. This interview was the first time Sergeant Mulcahy learned of the allegations of sexual abuse. This video recorded interview before “seven or eight people” was shown to the jury.
B.
In December 2008, a Massachusetts grand jury sitting in Middlesex County returned a twelve-count indictment charging Petitioner with four counts of rape of a child, see
Petitioner pleaded not guilty on all counts, and the case proceeded to trial in Middlesex Superior Court in January 2010.
The prosecution‘s case was built on several days of testimony by the victim, supported by the testimony of Flores, Morales, and Sergeant Mulcahy.
During direct examination the victim testified she first met Petitioner when she was thirteen years old and he was twenty-five at a “club” called Armenia she went to with some family members where the two danced and talked together. She testified she saw him for a second time at a different club some unspecified amount of time later where he told her that he had “asked a friend to loan him his car keys” in advance so that “when the band had a recess, [Petitioner could take the victim] to the car and [they]‘d have sex.” She testified that she and Petitioner did not have sex that night. The victim‘s and Petitioner‘s families came to know each other during this time.
As the victim testified on direct, after this second meeting at a club, Petitioner began calling the victim and, after the victim gave him her address, visited her where she then lived with her sister. The victim described, in detail, how she was home alone on Petitioner‘s visit in or around February of 2004.
As the victim testified on direct, she ran away that day. When another one of the victim‘s sisters eventually located her and contacted Petitioner to pick her up, he arrived and picked her up in a friend‘s car on the same day. During that car ride Petitioner told the victim, “Don‘t tell anybody we ha[d] sex,” because he was “gonna deny everything.” Petitioner eventually brought the victim to her ex-stepmother‘s boutique business where her ex-stepmother and Petitioner‘s mother both were at the time.
The victim testified that other members of her family, including her father, arrived at that business and talked with Petitioner‘s mother, after which her father and one of her sisters told her to “[l]eave with [Petitioner].” Petitioner then asked the victim if she “wan[ted] to come with [him].” When she said “no,” “[h]e told [her] ‘No matter; you‘re coming,‘” and took her from the boutique. The victim testified that she left with
Throughout the rest of her direct testimony, the victim described in graphic detail her treatment while living with Petitioner over the next roughly four years. She testified that Petitioner refused to let her attend school and from when she arrived in February 2004 at age thirteen until she escaped to a women‘s shelter in June 2008 he forced her to “clean the room,” “take care of his hair,” “shave him,” “give him a massage when he g[ot home] from work,” “make him some food,” “take care of his shoes and . . . his clothes” including “wash[ing] his clothes,” “cut his nails,” and “shave his private parts.” The victim testified that she took all her meals in the room.
The victim testified that she “only had permission to [leave the house to] go to the grocery store or to do laundry,” and Petitioner required that she call him before leaving for one of those destinations and call him again when she returned. She testified that Petitioner regularly beat her, including by kicking her with steel-toed boots; threatened her with a knife; and on at least one occasion “cut [her] hair with that knife” as punishment.
The victim testified that Petitioner would “stick [his penis] into [her] mouth by force” “three or four times a week” from when she arrived at the house in 2004 until she left in 2008. She testified to graphic details of the way Petitioner would force her to perform this oral sex, including the specific way he would position his body to keep her from moving and his habit of telling her to “[p]ut the volume of the t.v. up so nobody can hear it.” She testified that if she refused Petitioner would “punch [her] in [her] face or slap [her].” She testified in similar detail to repeated acts of forced, non-consensual anal and vaginal intercourse on a weekly basis during this time. She testified that soon after she moved in with Petitioner, Petitioner‘s mother began “injecting [the victim] with . . . birth control shots so [she] wouldn‘t have any children.”
The victim testified that at some point in June 2008 she began discussing Petitioner‘s abuse with Elida Flores, a family friend. As part of these conversations, the victim also “prepare[d] a suitcase and . . . put a little bit of [her] clothes there and shoes” and took the suitcase to Flores‘s house “[e]arly in the morning when everybody was asleep and [Petitioner] and his mother were working.” Later that month, on or around June 17, 2008, and after being beaten over the course of several days by
The victim testified that Flores took her to the home of Beatrice Morales, Flores‘s friend. At Morales‘s house, the victim told the pair “everything” that Petitioner had done to her and showed Flores and Morales the bruises on her body. Flores and Morales took five photographs of the victim‘s body that day, June 17, 2008, which graphically depicted the injuries to the victim‘s head, face, and right leg as of that date and substantiated the victim‘s testimony that her hair had been cut. The victim identified these photos during her direct testimony, and they were admitted into evidence. Flores and Morales took the victim to a local organization serving women escaping abuse which helped her obtain a protection order against Petitioner and placed her in a women‘s shelter.
The victim‘s testimony on cross-examination established that she had never attempted to contact the police prior to June 2008, despite having had access to a phone in Petitioner‘s home and opportunities to seek assistance during time spent outside the home; that her accusations against and assistance with the prosecution of Petitioner had enabled her to obtain a visa to remain in the United States legally; that she had at one point
On cross-examination the victim also testified that “almost every month” she would “wake up . . . naked” in a room where she would see Petitioner “collecting money” from several men. On at least one such occasion she recalled that one of these men was Petitioner‘s brother, Moris Quintanilla, who she stated “touch[ed]” her “sexually” at that time.
Flores‘s testimony corroborated the victim‘s testimony. Flores testified that the victim appeared bruised and beaten with “short hair” in June 2008 and the victim stated she was afraid to return to Petitioner because he had mentioned getting access to a pistol. She testified that the victim later shared with her additional details -- “so many things [that Flores] wouldn‘t have enough time to tell [the court while testifying]” -- about how Petitioner “would beat her, . . . would abuse her sexually and in different ways” and that Petitioner “was charging [other men] money for [the victim], for [her] body.” She testified that the victim also “told [her] that [Petitioner]‘s mother would give [the victim] shots. And [Flores] knew about the shots because [Petitioner‘s mother] herself told [Flores] about them.” Flores further testified that “they threatened [the victim] with immigration, and that‘s how they kept her.” On cross-examination, she admitted
Morales similarly described seeing the victim “had been beat up” and observed “[b]ruises on her legs, her arms, [and a] punch in her head” when the victim arrived at her house with Flores in June 2008 and that the photographs she took that day, which the prosecution had admitted into evidence, accurately showed those injuries. She further testified that, when she had seen the victim at a park shortly before the victim sought her and Flores‘s assistance, the victim had seemed “nervous” and “paranoid,” said she had “got problems with her boyfriend,” and claimed to be being watched. On cross-examination, she acknowledged that she had not observed any injuries on the victim during their meeting in the park and did not see anyone watching them when the victim claimed to be being watched.
Like Flores and Morales, Sergeant Mulcahy testified that when he met the victim on June 17, 2008, he “observed bruising and swelling on her forehead, black and blue marks, scrape marks. She had bruising to her legs, both legs. In particular, her right leg was more severe[ly] bruis[ed], [with] an injury in the area of the knee cap.” Sergeant Mulcahy also identified six photographs that he took of the victim‘s injuries that he observed that day. These photographs were admitted into evidence.
On cross-examination defense counsel elicited from Mulcahy that he never sought to verify the information that the victim told him. Among that information, Mulcahy admitted that he included in his application for a warrant for Petitioner‘s arrest that
[Petitioner] is a known admitted member and an extremely dangerous man, along with the fact that the victim has been placed in a safe house, coupled with the apparent escalating violence he exhibited [recently], [and thus Sergeant Mulcahy] believe[d] that if this individual is not arrested he will remain a serious threat to the [victim]‘s well-being and safety
without taking any steps to verify any of those facts other than interviewing the victim.
Before the case was submitted to the jury, the Commonwealth alerted the court that it had not presented evidence showing that Petitioner had performed nonconsensual oral sex on the victim, as alleged by one of each of the rape and rape of a child counts,6 and the court directed a verdict of not guilty on those counts. The jury then convicted Petitioner on the remaining counts on January 27, 2010. The court sentenced Petitioner to life imprisonment on two of the rape of a child counts, as well as lesser sentences on the other counts.7
Petitioner filed a motion for a new trial with the trial court on February 21, 2012, alleging that he had received ineffective assistance of counsel.8 Among other arguments, he asserted that his trial counsel had provided ineffective assistance by (1) failing to introduce pharmacy records purportedly showing that the victim was over the age of consent throughout her relationship with Petitioner, (2) introducing or failing to object to inadmissible evidence that purportedly harmed Petitioner‘s defense, and (3) failing to investigate potential defense witnesses.
Petitioner filed several affidavits in support of his motion for a new trial. In his own affidavit, Petitioner stated that his mother had given his trial counsel pharmacy records showing the victim to have been born in 1987.
Rhina Cruz, Petitioner‘s sister-in-law and Moris Quintanilla‘s wife, also submitted an affidavit in support of Petitioner‘s new trial motion signed under the pains and penalties of perjury on October 12, 2011. In it, Cruz stated she lived with
The trial court held a four-day evidentiary hearing on the motion in late 2013 and early 2014.10 Petitioner presented eleven witnesses: ten fact witnesses -- three members of the victim‘s family, four members of Petitioner‘s family, one of Petitioner‘s family‘s neighbors, a family friend, and the family‘s landlord -- and one expert witness -- the criminal defense training director for the Committee for Public Counsel Services.
Cruz‘s testimony at Petitioner‘s new trial motion evidentiary hearing on January 27, 2014, was markedly different from her sworn statement in the October 2011 affidavit. At the evidentiary hearing Cruz testified that on a single occasion about 12 months before the victim escaped from Petitioner the victim
At the evidentiary hearing Cruz admitted that she did not tell anyone about the victim‘s alleged statement at the time. Cruz admitted that she never “mention[ed] [this statement] again after that,” including that she did not discuss the statement with Petitioner after he was charged even though they were still living together at that time. She also admitted that she never called the police to give them this information either. The trial judge extensively engaged in questioning of Cruz as to inconsistencies in her sworn statements and her failure to inform anyone at the time.
As the MAC summarized, “the witnesses [including Cruz] testified that the victim was treated like a member of the family, was free to leave the home as she pleased, and appeared to be happy in her relationship with [Petitioner].” Several of the witnesses testified that they had never observed any bruises on the victim or seen her hair cut unusually. Two of the victim‘s half-sisters testified that she had wanted to move in with Petitioner and had not been sold to his family. Each fact witness -- including Cruz
The expert witness testified to various deficiencies she perceived in Petitioner‘s trial counsel‘s performance, although she also stated that trial counsel‘s “theory could have been fine” if it were better executed.
The trial court denied Petitioner‘s motion for a new trial in a written order issued December 11, 2014, which included detailed factual findings and legal conclusions. The court found that trial counsel had not performed deficiently by failing to introduce the pharmacy records referenced in Petitioner‘s affidavit because, based on statements by trial counsel at trial, it concluded that trial counsel did not possess them. The court also concluded that trial counsel‘s introduction or failure to object to inadmissible testimony was generally part of a reasonable strategy to demonstrate the victim‘s lack of credibility by demonstrating inconsistencies in her allegations, and that any errors had not prejudiced Petitioner. And the court found Petitioner‘s fact witnesses largely incredible, and so reasoned that “trial counsel‘s decision not to call the defendant‘s relatives and friends was not manifestly unreasonable and did not give rise to a substantial risk of a miscarriage of justice” and thus “his failure to interview them [was] of no consequence.” As to Cruz‘s testimony, the trial judge found, in full:
I do not credit [Cruz]‘s testimony as to a statement that she claims [the victim] made to her. At all relevant times, [the victim] did not have documentation to be in the U.S. legally. [Cruz] claims that, approximately one year before [the victim] left [Petitioner‘s home] in 2008, while they were both getting ready to go to a party ([Petitioner] and [Cruz]‘s husband Moris played in the same band), [the victim] was upset as she had wanted to leave with [Petitioner]. [Cruz] now claims that [the victim] said to her, “I‘ll make him eat shit; I‘ll get papers (to be in [the] U.S. legally) by accusing him even if I have to lie.” [Cruz] claims that she immediately realized the seriousness of what [the victim] said but she did not think [the victim] meant it as she was just expressing her anger at this defendant. In ¶ 17 of her affidavit, [Cruz] asserted that “[the victim] joked a lot, and once she made a joke that she was going to use [Petitioner] to get her papers to stay in the United States. At the time I thought she was kidding, but now that conversation bothers me a lot.” [Cruz]‘s claim is incredible; that she has two different versions, one where [the victim] is joking and one where [the victim] is angry, is substantial evidence that her story is concocted and false.
When [Cruz] learned of the charges against [Petitioner] from [Petitioner‘s mother], including that he was charged with raping [the victim] she remembered what [the victim] allegedly told her the previous year. She wondered to herself how he could be charged with raping [the victim] when she had seen them so happy together. But she never went to the police, assistant district attorney or anyone, not even to [Petitioner]. [Cruz] also alleges that she told [Petitioner‘s mother], but never [Petitioner] what she alleges that [the victim] told her about fabricating against this defendant to get papers to legally be in [the] U.S. According to her, the only person she told of [the victim]‘s
I do not credit [Cruz]‘s testimony. She did not know even the street on which the factory where she allegedly works is located; she did not know even the time periods when she worked; she lied even about why she could not have testified earlier at this hearing (i.e., “I have to care for my child in the morning when he goes to kindergarten,” and also that she could not have come to court in the afternoon when three of the hearings were scheduled). Most importantly, I do not accept that anyone knowing of this alleged statement by [the victim] would not tell everyone and anyone, defendant, his attorney, police, assistant district attorney, etc.11
The court also determined that, even if “the totality of trial counsel‘s errors” amounted to deficient performance, no prejudice had resulted.
Petitioner appealed to the MAC, where he raised the same arguments made to the trial judge. Specifically, he argued that defense counsel was ineffective for (1) failing to secure and
The MAC affirmed in a “Memorandum and Order Pursuant to [MAC] Rule 1:28.”12 As part of that opinion, the MAC stated that
[s]ummary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel‘s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
(Emphasis added and citations omitted.)
In its summary decision, the MAC expressly adopted the trial court‘s conclusion that trial counsel did not have the
The Massachusetts Supreme Judicial Court (“SJC“) denied Petitioner‘s application for review of the MAC‘s decision in May 2018 without a written opinion.
C.
On May 6, 2019, Petitioner filed a habeas petition challenging his convictions in the U.S. District Court for the District of Massachusetts. The petition reprised the ineffective assistance claims rejected by the trial court, MAC, and SJC.
This appeal followed.
II.
A.
Because “‘the district court undert[ook] no independent factfinding [and] we are effectively in the same position as the district court vis-à-vis the state court record,’ our review of a district court‘s denial of [Petitioner‘s] habeas petition is de novo.” Porter v. Coyne-Fague, 35 F.4th 68, 74 (1st Cir. 2022) (quoting Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)). Our review of the state court decision is, in contrast, governed by AEDPA, which “demands that a federal habeas court measure a state court‘s decision on the merits against a series of ‘peculiarly
We owe this deference to the decision reached by the last state court to hear Petitioner‘s claim for state law relief -- here, the SJC. Because the SJC summarily denied Petitioner‘s request for further appellate review without stating its grounds for rejecting Petitioner‘s claims, we look to the last reasoned state court decision and presume it provides evidence of “the grounds for the higher court‘s decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1196 (2018). Here, this presumption requires us to first look to the MAC‘s decision affirming the trial court‘s denial of Petitioner‘s motion for a new trial for the likely grounds on which the SJC denied further review of his claim.
Specifically,
(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.
See, e.g., Field, 37 F.4th at 16-17 (discussing this provision).
The first of these two bases for granting habeas relief -- subsection (d)(1) -- itself “splits into two distinct avenues for relief: the ‘contrary to’ clause and the ‘unreasonable application’ clause.” Porter, 35 F.4th at 74 (quoting
The second, “unreasonable application” clause of subsection (d)(1) “applies when ‘the state court identifies the correct governing legal principle from [the Supreme] Court‘s decisions but unreasonably applies that principle to the facts of the [petitioner]‘s case.‘” Id. (first alteration in original) (quoting Williams, 529 U.S. at 413). For relief to be appropriate under this clause, the state court‘s application of Supreme Court caselaw “must be objectively unreasonable, not merely wrong; even clear error will not [necessarily] suffice.” Id. (quoting White v. Woodall, 572 U.S. 415, 419 (2014)); see also Harrington v. Richter, 562 U.S. 86, 102 (2011) (explaining that “this standard . . . was meant to be” “difficult to meet“). “[T]he ‘unreasonable application’ clause applies ‘if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no fairminded disagreement on the question.‘” Porter, 35 F.4th at 75 (internal quotation marks omitted) (quoting White, 572 U.S. at 427). Further, “‘evaluating whether a rule application was unreasonable requires considering the rule‘s specificity,’ such that ‘[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.‘” Id. (alteration in original) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). And even “[i]f the petitioner does succeed in demonstrating error, ‘it is still not enough to win because [he] must also illustrate actual prejudice resulted from the mistake.‘” Field, 37 F.4th at 16 (internal quotation marks omitted) (quoting Goguen, 3 F.4th at 54).
The other path to habeas relief under AEDPA, subsection (d)(2), requires “a showing that the state court decision ‘was based on an unreasonable determination of the facts’ on the record before that court.” Porter, 35 F.4th at 75 (quoting
Under Strickland v. Washington, 466 U.S. 668 (1984), “[t]o succeed in his claim of ineffective assistance of counsel, [Petitioner] ‘must show both deficient performance by counsel and resulting prejudice.‘” Thompson v. United States, 64 F.4th 412, 421 (1st Cir. 2023) (quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010)); see Strickland, 466 U.S. at 687.
To establish deficient performance, Petitioner must “establish that his ‘counsel‘s representation fell below an objective standard of reasonableness.‘” Thompson, 64 F.4th at 421 (internal quotation marks omitted) (quoting Tevlin, 621 F.3d at 66). “Review of counsel‘s performance must be deferential, and reasonableness must be considered in light of prevailing professional norms,” mindful of the fact that “[t]here are countless ways to provide effective assistance in any given case.” Id. (internal quotation marks omitted) (first quoting Tevlin, 621 F.3d at 66; and then quoting Strickland, 466 U.S. at 689). “A court considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel‘s representation was within the ‘wide range’ of reasonable professional assistance.” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). Ultimately, “[a]n attorney‘s performance is 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.”
To show prejudice, Petitioner “must demonstrate ‘a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 694). “[S]how[ing] that the errors had some conceivable effect on the outcome of the proceeding” is insufficient; instead, Petitioner must establish that the errors were “so serious as to [have] deprive[d] [him] of a fair trial, a trial whose result is reliable.” Id. (quoting Strickland, 466 U.S. at 687, 693). While this standard “does not require a showing that counsel‘s actions ‘more likely than not altered the outcome,’ . . . . [t]he likelihood of a different result must be substantial, not just conceivable.” Id. at 112-13 (quoting Strickland, 466 U.S. at 693).
“[B]oth the [deficiency] and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact,”
On appeal, Petitioner raises three arguments considered and rejected by the state courts, asserting that his trial counsel was ineffective because he (1) failed to introduce pharmacy records purportedly showing that the victim was over the age of consent throughout her relationship with Petitioner, (2) introduced or failed to object to inadmissible evidence that purportedly harmed Petitioner‘s defense, and (3) failed to investigate potential defense witnesses. Applying the deferential standard of review required by AEDPA and our presumption that the SJC denied Petitioner‘s request for further appellate review on the basis of the grounds stated in the MAC decision, we conclude that the MAC‘s decision -- and thus the SJC‘s summary denial of Petitioner‘s request for further review -- was not unreasonable as to the claims concerning the pharmacy records and inadmissible evidence.
For the claim concerning the uncalled defense witnesses, we evaluate Petitioner‘s trial counsel‘s failure to investigate Rhina Cruz separately from his trial counsel‘s failure to investigate the other witnesses. We hold that the MAC‘s decision was not an “unreasonable application” of Strickland as to Petitioner‘s claim that his trial counsel‘s failure to investigate the non-Cruz witnesses prejudiced him. As for Petitioner‘s claim that his trial counsel‘s failure to investigate Rhina Cruz prejudiced him because Cruz would have testified that she heard
A.
We first address Petitioner‘s argument that the MAC unreasonably concluded that his trial counsel was not ineffective for failing to introduce pharmacy records purportedly showing that the victim was above the age of consent throughout her relationship with Petitioner. Petitioner asserts that his mother provided these records to his trial counsel before trial; that a competent lawyer would have offered the records to prove the victim‘s age or, at minimum, to impeach the victim‘s testimony that she was underage; and that failure to offer the records prejudiced his defense on the rape of a child charges, a necessary element of which was that the victim was underage. Relying on a statement by Petitioner‘s trial counsel to the trial court, the MAC affirmed the state trial court‘s finding that trial counsel did not have the records. Importantly, Petitioner does not argue that, if this factual finding was correct, his trial counsel was deficient for failing to independently discover and introduce the records, and so his
As described above, two AEDPA provisions potentially bear on our review of the state courts’ factual findings.
Petitioner bases his argument on an affidavit he submitted with his motion for a new trial in which he stated: “[The victim‘s] birthday is March 25, 1987[,] and my mother gave my attorney prescriptions from Rite Aid and Brooks Pharmacy listing both [the victim‘s] date of birth and her doctor‘s name. . . . I trusted that my attorney would follow-up on all of this information.” Petitioner‘s mother did not submit an affidavit or testify at the new trial hearing.
The state trial court and the MAC rejected Petitioner‘s claim that his trial counsel possessed the pharmacy records based
In this case, Your Honor, to my knowledge, there‘s been no discovery produced whatsoever, whatsoever, that would objectively and independently verify the complainant‘s age. There is nothing. The only documents I have are, for example, a medical form where someone handwrites a date of birth, and the date of birth is obtained -- and this I will find out through testimony of course -- that it‘s obtained through the complainant‘s own voluntary statement.15 There are no passports. There‘s no licenses. There‘s nothing whatsoever -- no school record -- nothing whatsoever to verify one way or the other the complainant‘s age.
Petitioner argues that this statement shows only that his trial counsel did not receive the pharmacy records “in discovery” from the Commonwealth and says nothing about whether he received them from Petitioner‘s mother. That is, arguably, one plausible reading of the statement. But it is at least equally plausible to take trial counsel‘s categorical statement that “[t]here is nothing” independently verifying the victim‘s age, his description of “[t]he only documents I have,” and his reiteration that “[t]here‘s nothing whatsoever . . . to verify . . . the complainant‘s age” at face value as describing the information
Because Petitioner does not argue that his trial counsel was deficient for failing to discover and offer the pharmacy records if he did not have them, this conclusion defeats the ineffective assistance claim based on the pharmacy records. See, e.g., Thompson, 64 F.4th at 424 (explaining that failure to show deficiency defeats ineffective assistance claim). We thus need
B.
We turn to Petitioner‘s argument that the MAC unreasonably determined that his trial counsel did not provide ineffective assistance in either introducing or failing to object to inadmissible evidence that purportedly harmed Petitioner‘s defense. The MAC concluded that Petitioner‘s trial counsel did not perform deficiently in this respect because he had reasonably pursued a “two-fold strategic plan to illustrate that . . . (1) the victim‘s testimony was not credible because her story had evolved over time and was incred[ible], and (2) the police investigation was incomplete and thus could not be trusted.” We conclude that Petitioner has not shown, “[u]nder the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard,” Knowles, 556 U.S. at 123, that the MAC‘s conclusion “involved an unreasonable application of . . . established Federal law” warranting habeas relief,
As a threshold matter, Petitioner argues that the MAC committed an error of law by purportedly failing to examine whether his trial counsel‘s actions were objectively reasonable; he asserts that the court instead evaluated only whether his trial counsel subjectively believed his actions to be strategic. See
Petitioner cites several instances in which he alleges his trial counsel performed deficiently. Because the MAC rejected his arguments, under AEDPA, “[t]he question [in each instance] is not whether counsel‘s actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland‘s deferential standard.” Harrington, 562 U.S. at 105. In other words, we can grant habeas relief only if “there could be no fairminded disagreement,” Porter, 35 F.4th at 75 (internal quotation marks omitted) (quoting White, 572 U.S. at 427), that “counsel‘s choice[s] [were] so patently unreasonable that no competent attorney would have made [them],” Thompson, 64 F.4th at 421 (quoting Vargas-De Jesús, 813 F.3d at 418). None of the alleged errors cited by Petitioner satisfy that standard.
Petitioner points first to trial counsel‘s decision to introduce, during cross-examination of Sergeant Mulcahy, a police report prepared by Sergeant Mulcahy after the victim first contacted the police in June 2008 that stated:
Given the fact that this individual is a known admitted [gang] member and an extremely dangerous man, along with the fact that the
victim has been placed in a safe house, coupled with the apparent escalating violence he exhibited on Sunday night, I believe that if this individual is not arrested he will remain a serious threat to the plaintiff‘s well-being and safety. I am also concerned with flight risk because the individual has the means and support system in El Salvador to avoid prosecution in this matter.
Petitioner argues that his trial counsel behaved unreasonably in introducing this statement because it was hearsay that the Commonwealth would have been unable to introduce against him and because the allegation that he belonged to a gang would likely turn the jury against him.
The MAC rejected this argument, reasoning that trial counsel had acted reasonably in service of “his theory that the police investigation was lackluster.” That holding was not objectively unreasonable. This court has acknowledged that “poking holes in the police investigation” can constitute a “plausible trial strategy.” Janosky v. St. Amand, 594 F.3d 39, 48 (1st Cir. 2010) (holding that MAC‘s conclusion that habeas petitioner‘s counsel did not act deficiently by introducing “potentially damaging [hearsay] testimony” in attempt to discredit police investigation was not unreasonable). As the MAC noted, after introducing the report, trial counsel elicited testimony from Sergeant Mulcahy establishing that all of the allegations in the report, including Petitioner‘s alleged gang membership, were based solely on the victim‘s statements and that Sergeant Mulcahy
Petitioner similarly cannot show an entitlement to relief based on his trial counsel‘s decision to elicit testimony that the victim had “sought and obtained a restraining order” against Petitioner after reporting the abuse to police. While Petitioner contends that the evidence of the restraining order “len[t] credence to the [victim]‘s claims by showing that a court ha[d] validated her allegations of abuse,” Petitioner‘s trial counsel used the evidence in such a way that it was not unreasonable for the MAC to conclude that this risk was justified and his actions did not “amount[] to incompetence.” Harrington, 562 U.S. at 105. Petitioner‘s trial counsel elicited -- or stated that he intended to elicit, but for the fact that the prosecution
Petitioner also cites to his trial counsel‘s decision to introduce, or fail to object to the Commonwealth‘s introduction of, hearsay statements by the victim describing abuse by Petitioner or his family. These statements took the forms of a video of the victim‘s SAIN interview from October 2008 and of testimony by Flores, Morales, and Sergeant Mulcahy recounting statements by the victim. We conclude that it was not objectively unreasonable for
Contrary to Petitioner‘s assertion that the hearsay statements did not “show[] any inconsistencies in [the victim‘s] stories,” the MAC accurately observed that “[t]aken together, this evidence established that the victim‘s story evolved from the defendant‘s physical abuse alone to daily sexual abuse.” Id. Both Flores and Sergeant Mulcahy described the allegations of physical abuse the victim made in June 2008 and acknowledged that she did not allege any sexual abuse at that time.18 Testimony from Flores about her conversations with the victim and from Sergeant Mulcahy about the SAIN interview showed that the victim did not allege any sexual abuse until later: Flores testified that the victim did not describe any sexual abuse to her until a phone call that took place after the victim had obtained a restraining order and left
The hearsay evidence also provided valuable impeachment material by highlighting the extreme and unsupported nature of some of the victim‘s allegations. Trial counsel established that, during the SAIN interview, the victim accused Petitioner‘s mother of practicing witchcraft against her. And, through cross-examination of Morales, he elicited that, at a time when the victim
In addition, trial counsel used the SAIN evidence to further challenge the adequacy of the police‘s investigation. For example, he elicited testimony from Sergeant Mulcahy that, although the victim mentioned during the interview that she had a stepmother who lived and owned a shop in the area and who had sometimes given the victim money to pass on to Petitioner‘s family, Sergeant Mulcahy never sought to contact the stepmother.
Petitioner contends that, because his trial counsel objected to the SAIN video‘s being played for the jury prior to closing arguments, the MAC erred in concluding that the admission of the video was a strategic decision. This argument fails as a factual matter, even assuming trial counsel‘s actual thinking is relevant to the deficiency inquiry. See Harrington, 562 U.S. at 109-110 (“Although courts may not indulge ‘post hoc rationalization’ for counsel‘s decisionmaking that contradicts the available evidence of counsel‘s actions, . . . Strickland . . . calls for an inquiry into the objective reasonableness of counsel‘s performance, not counsel‘s subjective state of mind.” (quoting Wiggins v. Smith, 539 U.S. 510, 526 (2003))). Trial counsel objected to the video‘s being played in full prior to closing arguments, but in so doing reiterated to the court that he did not object to the video‘s admission as an exhibit, simply to the timing of its presentation. There is no necessary contradiction in trial
Finally, we reject Petitioner‘s argument that the MAC made an erroneous factual finding in stating that “while [Petitioner‘s] expert witness disagreed with particular tactical decisions, she concluded that his general strategy was not unreasonable.” That statement was supported by the record. Petitioner‘s expert stated that trial counsel‘s “theory could have been fine” and agreed, for example, that “a reasonable strategy for a defendant might be to suggest to the jury that the police did not do their job properly.” Certainly, as the MAC acknowledged, Petitioner‘s expert witness also made clear her belief that trial counsel had not executed his strategy proficiently, but that fact does not render the MAC‘s statement as to trial counsel‘s general strategy untrue. Nor does Petitioner‘s expert‘s view that she would have used the evidence differently make the MAC‘s conclusion as to deficiency unreasonable. See, e.g., Strickland, 466 U.S. at 689 (“There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.“).
Petitioner‘s last challenge is to the MAC‘s holding that though his trial counsel was deficient in not interviewing certain potential witnesses, he nonetheless had not shown the prejudice needed to establish ineffective assistance of counsel.21 We conclude that Petitioner‘s challenge as to almost all of the evidence pertaining to these uncalled witnesses fails because the MAC‘s lack-of-prejudice ruling concerning that evidence was not an “unreasonable application” of Strickland under
We begin with the challenge that concerns all the uncalled witnesses other than Cruz. The MAC expressly stated that the testimony these witnesses would have offered would have been either cumulative of evidence already presented at trial or useful only for impeachment. Id. Petitioner argues that this characterization of the evidence was erroneous and that, even if it were accurate, the impeachment evidence would have been sufficiently valuable to his defense as to create the reasonable probability of a different result required to establish prejudice under Strickland.23 See 466 U.S. at 694. Based on the testimony cited by Petitioner and the arguments he advances as to its usefulness, we cannot say the MAC mischaracterized the evidence‘s uses or reached an unreasonable conclusion as to prejudice.
Petitioner first cites the fact that several of the uninterviewed witnesses, including members and friends of Petitioner‘s family, testified at the new trial hearing that they never saw any bruises on the victim or observed that her hair was cut in a “weird way.” The MAC determined that this evidence was merely cumulative of the testimony which trial counsel had elicited on cross-examination from prosecution witnesses Flores and Morales. Flores acknowledged that she never saw any “bruises, scratches, fractures, [or] any [other] type of physical abuse” in any of her interactions with the victim prior to the day in June
Further, the Commonwealth produced strong evidence and exhibits, independent of the victim‘s testimony, in support of the allegations of physical abuse: two sets of photographs showing bruising on the victim‘s face and legs and her hair cut short, as well as the testimony from Flores, Morales, and Sergeant Mulcahy that they had observed those injuries. The MAC reasonably concluded that trial counsel‘s failure to offer testimony that the victim had not displayed these injuries on earlier occasions did not prejudice Petitioner. Cf., e.g., Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (noting that prosecution‘s presentation of “strong evidence of guilt” reduces likelihood of Strickland prejudice).
Petitioner also argues that two of the victim‘s half-sisters testified that the victim had wanted to move in with
We conclude that the MAC did not unreasonably conclude that no prejudice resulted from the failure to present the additional impeachment evidence proffered by those uninterviewed witnesses who did not testify that they heard the victim state an intention to falsely accuse Petitioner. Cf. Malone, 536 F.3d at 67 (“Although we have noted that ‘a significant factor weighing in favor of finding prejudice is the absence of any corroborating evidence other than the testimony of the witness whom defense counsel failed to impeach,’ here, defense counsel did not fail to impeach [the victim-witness].” (citation omitted) (quoting Stephens, 294 F.3d at 225)).
We now turn to the challenge that relies on Rhina Cruz‘s testimony, rejected by the motion judge as not credible, that Cruz heard the victim state an intention to falsely accuse Petitioner. We note that although the state trial court expressly found Cruz‘s testimony “incredible,” the MAC did not expressly refer to this testimony by Cruz, and Petitioner contends that the MAC did not adopt the trial court‘s credibility findings. The MAC opinion
Even were we hypothetically to conclude that the MAC did not in its summary decision adopt the credibility finding or that the MAC made an “unreasonable application” of Strickland under
The motion judge held that Cruz -- who was dependent on Petitioner‘s family and lived with him, and who was married to Petitioner‘s brother, Moris -- changed her story when she testified before the motion judge in January 2014, over six years after the victim allegedly made the statement she described.25 In that sworn testimony, Cruz testified -- for the first time and inconsistently with her prior affidavit, as the motion judge found -- that the victim had become angry with Petitioner over a disagreement related to the band they performed in. Cruz testified that the victim stated she would “make [Petitioner] eat shit” and “was going to get papers [to remain in the United States legally]” by “accus[ing] [Petitioner] even if it was by lying.” Cruz further testified that she “did not think [at the time] that [the victim] was saying
The record shows that the motion judge, before making any credibility finding, undertook extensive questioning of Cruz. The motion judge held that Cruz‘s testimony was not credible because Cruz failed to tell anyone of the victim‘s alleged statement about the victim‘s intention to lie and had no satisfactory explanation for her failure to do so; failed, in a number of instances, to recall matters most people would recall, including, for example, the address of the factory where she worked and the time periods in which she generally worked there; and was dependent on Petitioner‘s family and was indeed a close member of Petitioner‘s family as his sister-in-law. The motion judge explicitly found that Cruz had lied during her testimony.
Petitioner has not rebutted the presumption of correctness that AEDPA requires us to give to that factual determination.
IV.
We affirm.