United States Court of Appeals
For the First Circuit
No. 20-1496
JORGE QUINTANILLA,
Petitioner, Appellant,
v.
RAYMOND MARCHILLI, Superintendent, NCCI - Gardner,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Howard, Circuit Judges.
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.
November 2, 2023
HOWARD, Circuit Judge. In January 2010, Petitioner-
appellant Jorge Quintanilla ("Petitioner") was convicted in
Massachusetts state court of three counts each of rape, rape of a
child, and assault and battery with a dangerous weapon, and one
count of assault and battery. The charges arose from his abuse of
a single female victim between 2004 and 2008. Following his
conviction, Petitioner sought a new trial in the state courts,
arguing, inter alia, that his trial counsel had been ineffective
in (1) failing to introduce pharmacy records purportedly showing
that the victim was over the age of consent throughout the relevant
period, (2) introducing or failing to object to the introduction
of inadmissible evidence that purportedly harmed his defense, and
(3) failing to investigate potential defense witnesses.
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
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relief but issued a certificate of appealability allowing
Petitioner to seek review in this court. Quintanilla v.
Superintendent, No. 19-cv-11052, 2020 WL 1139882, at *7 (D. Mass.
Mar. 9, 2020). Applying the deference required by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in
scattered sections of the U.S. Code), we affirm.
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
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in February 2004 when the victim was thirteen and Petitioner was
twenty-five.1
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.
1 Petitioner was not charged with a crime in
connection with this encounter.
2 The victim and Petitioner lived in Petitioner's
family home for most of this period, but also lived for a few
months in a rented room outside the home.
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On or around June 17, 2008, the victim contacted a friend
of Petitioner's family, Elida Flores, and asked her for help,
arranging to meet at a laundromat. When Flores arrived, the victim
was "terrified" and had bruises on her face and legs. The victim's
hair had also been cut short. Flores took the victim to the home
of another friend of the victim and Flores, Beatrice Morales. The
victim told the women that Petitioner had physically abused her.
Flores and Morales took photographs of the victim's injuries, then
took her to a women's shelter.
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
3 Flores did not recall precisely when the call took
place; she estimated that "it was less than a month after [the
victim] had left [Petitioner's home]."
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Petitioner's mother had regularly given her shots that made her
"feel dizzy."
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 Mass. Gen.
Laws ch. 265, § 23; four counts of rape, see
id. § 22(b); three
counts of assault and battery with a dangerous weapon, see id. §
15A(b); and one count of assault and battery, see id. § 13A(a).4
4 Petitioner had previously been arraigned on June
20, 2008, in Somerville District Court on a criminal complaint
charging him with assault and battery with a dangerous weapon, see
Mass. Gen. Laws ch. 265, § 15A(b); intimidation of a witness, see
id. ch. 268, § 13B; and threat to commit a crime, see id. ch. 275,
§ 2, based on the victim's allegations during her first interview
with Sergeant Mulcahy. The Commonwealth filed a nolle prosequi on
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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.
those charges in January 2009, after the grand jury indictment
issued.
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She described how, when he arrived, Petitioner entered the home
without being invited in, brought her to the guest room in the
house, laid her on the bed, crawled on top of her, undressed her,
and forced her to engage in oral and vaginal intercourse without
her consent and while she repeatedly tried to get him to stop.
When her sister returned to the house and discovered the victim
there with a man (Petitioner was no longer raping the victim at
this point), she became angry and "said she would send [the victim]
back to [her] country," a reference to El Salvador.
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
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Petitioner because she "fe[lt] she d[id]n't have any choice." From
there, she testified that Petitioner took her to live with him and
his family where she slept in the same bed as Petitioner. She
testified that Petitioner later told her that he had paid "a
hundred dollars for [her]" that day.
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.
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She testified that he would also threaten to "call . . .
immigration" if she did not obey him.
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
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Petitioner, the victim decided to "go to the laundry" to "call
Elida [Flores] and ask for her help . . . to get out of there."
Soon after, Flores arrived in a car. The victim got into "[t]he
back and . . . laid down so nobody could see [her]."
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
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loved Petitioner; that she had suspected him of cheating on her;
and that she had made several phone calls to him after obtaining
the restraining order against him in June 2008.
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
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that she had not noticed bruises or other signs of physical abuse
on the victim on any previous occasion, despite having been around
her frequently.
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.
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On cross-examination, Sergeant Mulcahy testified that
the victim "described being kicked and beaten by [Petitioner] and
threatened by him" when Mulcahy met her on June 17, 2008. Sergeant
Mulcahy acknowledged that the victim had not described any
instances of sexual assault to him until the SAIN interview in
October 2008.5
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.
5 The court warned Petitioner's trial counsel that,
by inquiring about the SAIN interview, he was opening the door to
the Commonwealth's entering the video as an exhibit. Trial counsel
stated that he "underst[ood]," and continued to question Sergeant
Mulcahy about the interview. The video was later entered into
evidence by the Commonwealth without objection from the defense.
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Defense counsel adopted a strategy of cross-examining
the victim and the prosecution witnesses. The defense did not
present any witnesses. According to the MAC, "[Petitioner]'s
mother [had] informed trial counsel that certain family members
could provide testimony contradicting parts of the victim's
testimony." According to an affidavit Petitioner filed in support
of his later motion for a new trial, this testimony would have
included "friends, family, neighbors and members of the community
who knew [Petitioner], who knew [the victim] and who could testify
as to the times that they had seen [the two] together as a couple."
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
6 Two other counts -- one each of rape and rape of a
child -- alleged that Petitioner had forced the victim to perform
oral sex on him. Those counts were submitted to the jury, which
convicted on both.
7 One of the life sentences was later reduced to
twenty-five years to twenty-five years and one day after a
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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
sentencing appeal to the state superior court's appellate
division.
8 Petitioner also appealed his conviction to the MAC.
The MAC stayed the appeal pending the trial court's ruling on his
motion for a new trial, then consolidated the direct appeal with
the appeal of the trial court's initial denial of his motion
without a hearing.
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Petitioner and the victim in the house along with her husband,
Moris, Petitioner's brother. Cruz stated 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."9
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
9 The victim had testified at trial that Moris,
Cruz's husband and Petitioner's brother, was one of the individuals
who had paid Petitioner to "touch" her "sexually" during her time
living with Petitioner.
10 The trial court initially denied the motion without
a hearing. Petitioner appealed the denial to the MAC, which
vacated the trial court's decision and remanded for an evidentiary
hearing.
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became angry at Petitioner and said that 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 testified that at the time the victim made
these statements Cruz "did not think she was saying this
seriously."
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
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-- averred that he or she had not been contacted by Petitioner's
trial counsel and would have been willing to testify if asked.
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:
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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
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alleged statement was [Petitioner's mother].
For reasons she declined to explain, she
preferred to tell [Petitioner's mother], and
not to tell [Petitioner]. This alone confirms
the level of control that [Petitioner's
mother] has long exerted in that household,
which, in part, corroborates the victim's
testimony.
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
11 As to the family members, the trial judge did not
credit their claims that the relationship between Petitioner and
the victim was consensual, that the victim had at all times been
an adult, and that they were unaware of the severity of the charges
against Petitioner. Among other reasons, the court noted that the
family failed to go the police after the arrest about what they
now testified were charges that were false, when in contrast the
family had indeed contacted the police in 2003 as to a much less
serious matter.
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introduce the allegedly exculpatory pharmacy records, (2)
introducing or failing to object to "otherwise inadmissible and
highly prejudicial evidence," and (3) failing to investigate
potential "exculpatory" witnesses. Petitioner placed the record
supporting the trial judge's credibility finding directly before
the MAC by arguing that the trial judge erred "in denying
[Petitioner]'s motion for new trial . . . largely because she did
not find the witnesses credible."
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
12 Rule 1:28 was superseded by Massachusetts Appeals
Court Rule 23.0 effective July 1, 2020. Because Petitioner's
course of state court litigation ended in May of 2018 (see below)
we do not consider Rule 23.0.
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pharmacy records and so did not perform deficiently by failing to
introduce them. It also expressly concluded that trial counsel's
decisions to introduce or not object to inadmissible evidence had
reasonably advanced his "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."
Finally, the MAC expressly held that no prejudice had resulted to
Petitioner because the testimony offered by the witnesses was
cumulative of evidence presented at trial or "would have served
[only] to impeach, which is 'not ordinarily the basis of a new
trial.'"13 (Quoting Commonwealth v. Almeida, 897 N.E.2d 14, 27
(Mass. 2008).)
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.
13The MAC also expressly stated that trial counsel's
failure to interview the potential witnesses proffered by
Petitioner "fell short of [the investigation expected of an]
ordinarily fallible lawyer."
- 23 -
Following briefing from Petitioner and the Commonwealth, the
district court denied relief, reasoning that Petitioner had not
shown that the state court decision rested on an unreasonable
application of federal law or an unreasonable determination of the
facts as required to obtain habeas relief under AEDPA. See
Quintanilla, 2020 WL 1139882, at *4-7; see also
28 U.S.C. § 2254(d)
(setting standard of review). But the court also concluded that
"reasonable jurists could debate" the merits of Petitioner's
claims, and so granted a certificate of appealability authorizing
Petitioner to seek review in this court. Quintanilla,
2020 WL
1139882, at *7.
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
- 24 -
deferential standards.'"14 Id. (quoting Cronin v. Comm'r of Prob.,
783 F.3d 47, 50 (1st Cir. 2015)).
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
14 In evaluating Petitioner's ineffective assistance
of counsel claims, the MAC employed the state law standard
established in Commonwealth v. Saferian, 315 N.E.2d 878 (Mass.
1974), rather than citing federal precedents applying Strickland
v. Washington,
466 U.S. 668 (1984). As Petitioner properly
concedes, this reliance on Massachusetts caselaw does not affect
our standard of review. "A state court decision applying state
law deserves deference under AEDPA 'as long as the state and
federal issues are for all practical purposes synonymous and the
state standard is at least as protective of the [petitioner]'s
rights.'" Strickland v. Goguen,
3 F.4th 45, 54 n.14 (1st Cir.
2021) (quoting Scott v. Gelb,
810 F.3d 94, 99 (1st Cir. 2016)).
This court has confirmed that the Saferian standard is at least as
protective as, and functionally equivalent to, the Strickland
standard and that AEDPA deference is appropriate in reviewing
Massachusetts decisions applying Saferian. See
id.
We note that Petitioner, in the "summary of argument"
section of his opening brief, asserts that "the standard of review
employed by Massachusetts was wrong . . . , [and so] this court
[should] address[] the question of prejudice de novo." However,
his brief never elaborates on this assertion or otherwise develops
an argument for de novo review, and so any such argument is waived.
See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
- 25 -
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, 28 U.S.C. § 2254(d) provides that "a writ
of habeas corpus . . . shall not be granted unless" the state court
decision either
(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
28 U.S.C.
§ 2254(d)(1)). "The 'contrary to' clause applies when 'the state
court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.'"
Id. (alterations in
original) (quoting Williams v. Taylor,
529 U.S. 362, 412-13
- 26 -
(2000)). Petitioner does not develop any argument that he is
entitled to relief under this clause.
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. at 75 (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
- 27 -
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
28 U.S.C. §
2254(d)(2)). "This demanding showing cannot be made when
'[r]easonable minds reviewing the record might disagree about the
finding in question.'"
Id. (alteration in original) (internal
quotation marks omitted) (quoting Brumfield v. Cain,
576 U.S. 305,
314 (2015)). Notably, the next subsection of AEDPA,
28 U.S.C.
§ 2254(e)(1), further provides that "a determination of a factual
issue made by a State court shall be presumed to be correct' unless
rebutted 'by clear and convincing evidence.'" Porter,
35 F.4th at
79 (quoting
28 U.S.C. § 2254(e)(1)). "The Supreme Court has
carefully left . . . open" the question of how subsections (d)(2)
and (e)(1) fit together, and "the question remains open in this
circuit" as well.
Id. We need not resolve the question to decide
this case.
- 28 -
B.
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."
- 29 -
Thompson, 64 F.4th at 421 (alteration and omission in original)
(internal quotation marks omitted) (quoting Vargas-De Jesús v.
United States,
813 F.3d 414, 417-18 (1st Cir. 2016)). The inquiry
is objective: "Strickland . . . calls for an inquiry into the
objective reasonableness of counsel's performance, not counsel's
subjective state of mind." Harrington,
562 U.S. at 110; accord
Wilder v. United States,
806 F.3d 653, 660 (1st Cir. 2015).
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,"
- 30 -
rather than pure factual determinations, Strickland, 466 U.S. at
698, and so, barring any underlying factual disputes, the MAC's
conclusion as to each prong "is evaluated under the 'unreasonable
application' clause of § 2254(d)," Yeboah-Sefah,
556 F.3d at 70;
accord Field,
37 F.4th at 16 n.1. The Supreme Court has emphasized
that, while "'[s]urmounting Strickland's high bar is never an easy
task[,]' . . . [e]stablishing that a state court's application of
Strickland was unreasonable under § 2254(d) is all the more
difficult." Harrington,
562 U.S. at 105 (quoting Padilla v.
Kentucky,
559 U.S. 356, 371 (2010)). "The standards created by
Strickland and § 2254(d) are both 'highly deferential,' and when
the two apply in tandem, review is 'doubly' so." Id. (citations
omitted) (first quoting both Strickland,
466 U.S. at 689, and Lindh
v. Murphy,
521 U.S. 320, 333 n.7 (1997); and then quoting Knowles
v. Mirzayance,
556 U.S. 111, 123 (2009)). In addition, because
"[t]he Strickland standard is a general one, . . . the range of
reasonable applications is substantial."
Id. With respect to the
deficiency prong in particular, "[f]ederal habeas courts must
guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether [Petitioner's trial]
counsel's actions were reasonable. The question is whether there
is any reasonable argument that [his trial] counsel satisfied
Strickland's deferential standard." Id.
- 31 -
III.
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
- 32 -
the victim say that she would falsely accuse Petitioner, we do not
decide whether the MAC's resolution of that claim was an
"unreasonable application" under 28 U.S.C. § 2254(d)(1). We
instead conclude that Petitioner's challenge as it relates to that
argument fails because under our circuit precedent we presume
correct the trial court's finding that this testimony was not
credible, and Petitioner has failed to rebut that presumption.
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
- 33 -
claim necessarily fails unless we conclude that the finding was
erroneous.
As described above, two AEDPA provisions potentially
bear on our review of the state courts' factual findings. Section
2254(d)(2) authorizes habeas relief where the state court decision
"was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." Section
2254(e)(1) provides that "a determination of a factual issue made
by a State court shall be presumed to be correct" unless the
petitioner rebuts that presumption "by clear and convincing
evidence." We need not decide which of these provisions is
controlling here because Petitioner's claim fails under either
one.
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
- 34 -
on a statement by his trial counsel during a pretrial discussion
with the trial court and prosecutor that:
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
Petitioner does not contend that this reference to
15
"handwrit[ten]" "medical records" could refer to the pharmacy
records, nor could he plausibly do so; the pharmacy records are
typed, not handwritten, and trial counsel's statement implies that
the handwritten records supported the victim's claim to have been
underage, rather than contradicting it.
- 35 -
available from any source, rather than understanding them to be
limited by the earlier reference to discovery. And, given that
reading, we cannot say the state courts, confronted with two
competing claims, acted unreasonably by crediting trial counsel's
statement over Petitioner's.16 At most, Petitioner has shown that
"[r]easonable minds reviewing the record might disagree about the
finding in question," Porter, 35 F.4th at 75 (alteration in
original) (internal quotation marks omitted) (quoting Brumfield,
576 U.S. at 314), and that showing is insufficient to establish
that the MAC's decision "was based on an unreasonable determination
of the facts" so as to warrant relief under § 2254(d)(2). For the
same reasons, Petitioner has not shown this factual finding to be
erroneous "by clear and convincing evidence."
28 U.S.C.
§ 2254(e)(1).
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
16 Petitioner does not develop any argument that it
was erroneous for the state courts to credit trial counsel's
statement over his affidavit based on the fact that the latter was
offered under penalty of perjury, and has thus waived any such
argument. See, e.g., Zannino, 895 F.2d at 17.
- 36 -
not address the other arguments the parties advance concerning the
records.
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,
28 U.S.C. § 2254(d)(1).
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
- 37 -
Harrington, 562 U.S. at 110 ("Strickland . . . calls for an inquiry
into the objective reasonableness of counsel's performance, not
counsel's subjective state of mind."). A fair reading of the MAC's
opinion rebuts this argument. That court did note that
Petitioner's trial counsel had "repeatedly confirmed" that at
least some of his decisions at trial were "deliberate and
tactical." But it also discussed trial counsel's success in using
the evidence he elicited or to which he did not object to
"establish[] that the victim's story evolved from the defendant's
physical abuse alone to daily sexual abuse," affirmed that the
trial court had not "abuse[d] [its] discretion in finding that
[trial counsel's] strategy was not 'manifestly unreasonable,'" and
cited case law observing that an ineffective assistance claim must
fail "where [the] 'challenged conduct reflects the arguably
reasoned tactical or strategic judgments of a lawyer.'" Id.
(emphasis added) (first quoting Commonwealth v. Finstein,
687
N.E.2d 638, 640 (Mass. 1997); and then quoting Commonwealth v.
McCormick,
717 N.E.2d 1029, 1031 (Mass. App. Ct. 1999)). We
conclude that the MAC did evaluate the objective reasonableness of
Petitioner's trial counsel's performance, as required by
Strickland.17
17 Petitioner also contends that the MAC erroneously
"attributed [to his trial counsel] a trial strategy that trial
counsel himself never claimed or stated." "Although courts may
- 38 -
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
not indulge 'post hoc rationalization' for counsel's
decisionmaking that contradicts the available evidence of
counsel's actions, neither may they insist counsel confirm every
aspect of the strategic basis for his or her actions." Harrington,
562 U.S. at 109 (citation omitted) (quoting Wiggins v. Smith,
539
U.S. 510, 526 (2003)). The fact that Petitioner's trial counsel
did not explicitly describe each component of his strategy on the
record does not render his performance deficient.
- 39 -
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
- 40 -
had taken no steps to independently verify any of them, whether
before filing the report or thereafter. For instance, trial
counsel elicited that Sergeant Mulcahy never even attempted to
interview Petitioner. "To be sure, [this] strategy was not free
from risk," Janosky, 594 F.3d at 48, but Petitioner's trial counsel
effectively cross-examined Sergeant Mulcahy about the basis for
the report, and it is not beyond fairminded dispute that at least
some competent lawyers might similarly risk introducing the
reference to gang membership in an attempt to show that the
authorities credited the victim's allegations without a proper
investigation and that at least some of those allegations lacked
support beyond the victim's word.
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
- 41 -
did so first -- testimony showing that the victim made multiple
calls to Petitioner after obtaining the restraining order. Trial
counsel referenced this fact in both his opening statement and his
closing argument. This evidence supported the defense that the
victim's accusations were not credible, implying that she had taken
out a restraining order against Petitioner despite apparently
being unafraid of contacting him and that she might similarly have
pursued the criminal charges on a fraudulent basis, such as to
secure a U visa. Cf. Janosky, 594 F.3d at 48 ("When . . . counsel's
decision to elicit potentially damaging testimony is part of a
plausible trial strategy, that decision does not fall below an
objective standard of reasonableness."). Because "there is [at
least a] reasonable argument" that Petitioner's trial counsel's
actions fell "within the 'wide range' of reasonable professional
assistance," we must defer to the MAC's determination that he did
not perform deficiently. Harrington, 562 U.S. at 104-05 (quoting
Strickland,
466 U.S. at 689).
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
- 42 -
the MAC to conclude that a competent defense attorney might embrace
these statements' admission as bolstering the defense's theories
that the victim's allegations were unreliable or fabricated, both
because they had evolved over time and because they were incredibly
extreme, and that the police's investigation had been inadequate.
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
Morales similarly testified that, while the victim
18
had told her in June 2008 that "she got problems with her
boyfriend," the victim did not describe the problems in any detail
or specify that Petitioner had committed any sexual abuse.
- 43 -
Petitioner's home.19 Sergeant Mulcahy testified that the victim
did not report any sexual abuse to law enforcement until the SAIN
interview on October 31, 2008, more than four months after she
first contacted the police. Particularly when combined with other
testimony elicited by Petitioner's trial counsel establishing that
the victim had had earlier opportunities to seek help (for
instance, by using the phone in Petitioner's home or during the
time she spent outside the home) but did not do so, the evidence
to which Petitioner now objects showed that the victim's
allegations evolved dramatically over time, from years without any
allegations, to claims of physical abuse, to accusations of sexual
abuse. Cf. Tang v. Citizens Bank, N.A., 821 F.3d 206, 216 (1st
Cir. 2016) (observing that the fact that a witness's "testimony
. . . has grown more elaborate with time . . . may render her an
easily impeachable witness").
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
Flores's testimony similarly established that the
19
victim did not report receiving shots from Petitioner's mother
until this later call.
- 44 -
had told Morales she was being watched from a window, Morales did
not see anyone there.20
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.
20 In his brief, Petitioner asserts that Flores also
testified that the victim "told [her] [Petitioner]'s family
members [were] always watching her." In the cited testimony,
Flores actually stated that Petitioner's mother had told her that
the family was always watching the victim. As Petitioner observes
elsewhere in his brief, trial counsel admitted during a sidebar
conference that his failure to object to that testimony had been
an oversight. The MAC acknowledged that the failure to object was
a "mistake," but held that that lapse was insufficient to render
trial counsel's performance deficient. In this court, Petitioner
does not address that holding or develop an argument that this
purported error, standing alone, rendered his trial counsel's
performance deficient. Cf. Harrington, 562 U.S. at 111 ("[W]hile
in some instances 'even an isolated error' can support an
ineffective-assistance claim if it is 'sufficiently egregious and
prejudicial,' it is difficult to establish ineffective assistance
when counsel's overall performance indicates active and capable
advocacy." (citation omitted) (quoting Murray v. Carrier, 477 U.S.
478, 496 (1986))). We note that, while Petitioner's brief implies
that his trial counsel stated that his failure to object to all
hearsay testimony offered by Flores had been an error, the record
shows that trial counsel specified that he deliberately did not
object to most of Flores's testimony and that only his failure to
object to that one element of her testimony was unintentional.
- 45 -
At minimum, "fairminded" jurists could disagree as to
whether these benefits to the defense outweighed the risk, cited
by Petitioner in his brief, that this hearsay evidence would
bolster the victim's credibility by having her allegations
repeated to the jury by multiple witnesses or through the SAIN
video. Porter, 34 F.4th at 75 (quoting White, 572 U.S. at 427).
And where such "fairminded disagreement" could exist, AEDPA
forbids habeas relief.
Id. (quoting White,
572 U.S. at 427).
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
109-10 ("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
- 46 -
counsel's believing that the video was, on balance, helpful to the
defense for the reasons described above but that its playing to
the jury in full shortly before their deliberations would be
beneficial to the prosecution.
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.").
- 47 -
C.
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 28 U.S.C.
§ 2254(d)(1). We further conclude that Petitioner's challenge
based on Rhina Cruz's testimony at the new trial hearing fails.
In her testimony, which the motion judge rejected as not credible,22
Cruz said she heard the victim say she "was going to get papers
[to remain in the United States legally]" by "accus[ing]
The MAC concluded that trial counsel's failure to
21
interview these potential witnesses "fell short of [the
investigation expected] of [an] ordinary fallible lawyer," and the
district court "agree[d]" that trial counsel's performance was
deficient, Quintanilla, 2020 WL 1139882, at *5. Although the
Commonwealth asserts that we are "not bound by the [MAC's] finding
of deficient performance," it does not develop any argument as to
why that conclusion was erroneous. Because we conclude that the
MAC's lack-of-prejudice holding was reasonable, we need not
address deficiency. See, e.g., Strickland,
466 U.S. at 687, 697
(explaining that both deficiency and prejudice are required and
that courts need not address one prong if the defendant has not
satisfied the other).
As noted, the judge for Petitioner's new trial
22
motion was the same judge who presided over the jury trial that
resulted in Petitioner's convictions.
- 48 -
[Petitioner] even if it was by lying." We presume this factual
finding as to the credibility of this testimony was correct, and
Petitioner has not carried his burden to rebut that presumption.
See Yeboah-Sefah, 556 F.3d at 80; Sleeper v. Spencer,
510 F.3d 32,
38 (1st Cir. 2007).
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.
23At oral argument and in a letter filed after
argument, Petitioner argued that the witnesses testified that they
believed the victim to be above the age of consent throughout the
time she lived with Petitioner and that this evidence would have
supported his defense on the rape of a child counts. Petitioner
did not make this argument in his opening or even his reply brief,
and so it is waived. See, e.g., Lowe v. Mills, 68 F.4th 706, 719
n.16 (1st Cir. 2023).
- 49 -
Ineffective assistance claims under AEDPA "where the
relevant error is failure to impeach a government witness" requires
us to "begin [the prejudice analysis] by assessing the strength of
the prosecution's case, and the effectiveness of the defense absent
the impeachment evidence." Malone v. Clarke, 536 F.3d 54, 64 (1st
Cir. 2008) (quoting Stephens v. Hall,
294 F.3d 210, 218 (1st Cir.
2002)). We must "then consider 'the potential impeachment value
of the evidence in undermining the credibility of the witness's
testimony.'"
Id. (internal quotation marks omitted) (quoting
Stephens,
294 F.3d at 218). Under the double deference required
by AEDPA, Petitioner must prove that the MAC unreasonably weighed
the prosecution's case, effectiveness of the defense absent the
impeachment evidence, and potential impeachment value of the
uncalled witnesses' testimonies.
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
- 50 -
2018 when the victim sought her assistance. Morales, too,
testified that she had not seen any "scratches," "marks," "bumps,"
or "bruising" on the victim during a meeting shortly before that
day. It was not objectively unreasonable of the MAC to conclude
that similar testimony, particularly by those affiliated with
Petitioner by family or friendship, would not have affected the
outcome. Cf. Stephens, 294 F.3d at 225-26 (concluding that state
court's decision that failure to offer impeachment evidence did
not prejudice defendant was not objectively unreasonable where the
evidence arguably "added nothing new").
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
- 51 -
Petitioner and that the victim's father had not sold her to
Petitioner's family. Petitioner asserts that this testimony
contradicted the victim's testimony that she did not want to move
in with Petitioner and that she understood her father to have sold
her to Petitioner for $100. These arguments fail for the same
reasons stated above.
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
- 52 -
did, however, expressly point out that it was a summary opinion
that "may not fully address the facts of the case or the panel's
decisional rationale."
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 28
U.S.C. § 2254(d)(1), we presume the correctness of the state trial
court's adverse credibility finding as to Cruz. See Yeboah-Sefah,
556 F.3d at 80. Petitioner argues, referring to a Sixth Circuit
case, that he has no burden to rebut this presumption.24 As a
matter of law this court rejects that argument. We have repeatedly
held that federal habeas courts must give a presumption of
correctness to state-court findings of "'basic, primary, or
historical facts,' such as witness credibility." Sleeper,
510
F.3d at 38 (quoting Sanna v. DiPaolo,
265 F.3d 1, 7 (1st Cir.
2001)); see also Ayala v. Alves,
2023 WL 7013413, at *17, *19 (1st
Cir. Oct. 25, 2023) (applying this presumption as to state court
factual findings). Even had Petitioner made some effort to argue
this point, the record does not support the conclusion that
Petitioner has rebutted this presumption.
Petitioner cites only to a sixteen-year-old Sixth
24
Circuit opinion, Ramonez v. Berhuis, 490 F.3d 482, 490-91 (6th
Cir. 2007), and does not develop an argument as to how it comports
with our own circuit precedent. See Zannino,
895 F.2d at 17.
- 53 -
Cruz, who was Petitioner's sister-in-law, made two sworn
statements in support of his new trial motion, one of which
Petitioner ignores but which the motion judge did not. In an
affidavit dated October 12, 2011, Cruz stated 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."
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
25 This six year gap further supports the trial
judge's finding that Cruz's later testimony was incredible.
- 54 -
this seriously." Petitioner contends that this latter testimony
would have revealed the victim's "motive to fabricate."
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.
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