United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Jose Cabrera (“Cabrera”) has filed a petition
seeking a writ of habeas corpus (“Petition”)
pursuant to 28 U.S.C. § 2254 alleging various
constitutional violations in connection with his 2011
conviction for second-degree murder. D. 1. Respondent Sean
Medeiros (“Medeiros”), the Superintendent of
MCI-Norfolk, opposes the Petition on the bases that
Cabrera's grounds for habeas relief either have been
waived or fail on the merits. D. 23 at 3. For the reasons
stated below, the Court DENIES Cabrera's Petition, D. 1.
Standard of Review
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may grant a writ of
habeas corpus if the state-court adjudication “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.” 28 U.S.C. § 2254(d)(1). “A state
court decision is contrary to clearly established federal law
only if 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.'” Restucci v.
Spencer, 249 F.Supp.2d 33, 42 (D. Mass. 2003)
(alternations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)). As the Supreme Court
has clarified, this does not requires that a state court
“cite or even be aware of [the Supreme Court's]
cases.” Harrington v. Richter, 562 U.S. 86, 98
(2011) (citing Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam)). Rather, a state-court decision is not
susceptible to a habeas challenge “so long as neither
the reasoning nor the result of the state-court decision
contradicts [Supreme Court precedent].” Early,
537 U.S. at 8.
court decision is an “unreasonable application”
of federal law “if the state court identifie[d] the
correct governing legal rule from [the Supreme] Court's
cases but unreasonably applie[d] it to the facts of the
particular state prisoner's case.”
Williams, 529 U.S. at 407. Accordingly, a federal
court may only grant habeas relief if “the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. In sum, the AEDPA
“erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state
court.” Burt v. Titlow, __ U.S. __, 134 S.Ct.
10, 16 (2013).
Factual and Procedural Background
November 1, 2008, Tony Pich (“Pich”) was killed
in a gang-related shooting in Lynn, Massachusetts. S.A. at
124-29. Two days after the shooting, on November
3, 2008, the Lynn Police interviewed eleven-year-old Randy
Seang (“Seang”) who had been at the same house as
Pich at the time of the shooting. D. 2-1 at 2. During the
interview, Seang identified Cabrera as Pich's shooter to
Detective Stephen Withrow (“Detective Withrow”).
Id. Seang told Detective Withrow that he was
“100 percent sure” that Cabrera had been the
shooter and that he had also heard from other individuals
that Cabrera had been the shooter. Id. at 2-3. Three
days later, on November 6, 2008, Lynn Police interviewed
Cabrera at the Lynn Police Department. S.A. at 65-69. At the
end of the interview, Lynn Police arrested Cabrera for the
murder of Pich. Id. On January 2, 2009, an Essex
County grand jury indicted Cabrera for first-degree murder.
to trial, Cabrera moved to suppress certain evidence,
including the statements he had made to Lynn Police during
the November 6, 2008 interview. Id. at 101-05. After
a hearing that spanned several days in July and August 2010,
the Essex Superior Court (“trial court”) denied
Cabrera's motion to suppress his statements to Lynn
Police. Id. at 84, 118. His jury trial commenced on
January 4, 2011. S.A. at 93. At trial, Seang disavowed his
prior identification of Cabrera as Pich's shooter. D. 2-1
at 2. Seang not only provided a different account of his
whereabouts at the time of the shooting, but he claimed that
he did not remember the interview he gave to Lynn Police on
November 3, 2008. Id. Over the objection of
Cabrera's trial counsel, Detective Withrow subsequently
testified to Seang's prior identification of Cabrera as
the shooter, including Seang's claim that he was
“100 percent sure” it had been Cabrera.
Id. Detective Withrow also testified to Seang's
prior claim that he had heard from other individuals in the
community that Cabrera had been Pich's shooter.
Id. at 3. Cabrera's trial counsel objected to
this particular statement as inadmissible hearsay and
simultaneously moved for a mistrial. Id. The trial
court sustained the objection and instructed the jury to
disregard that piece of testimony, but ultimately denied
Cabrera's motion for a mistrial. Id. On February
11, 2011, the jury found Cabrera guilty of the lesser
included charge of second-degree murder and the trial court
sentenced Cabrera to life imprisonment. D. 1 at 1; S.A. at
filed a timely notice of appeal of his conviction with the
Massachusetts Appeals Court (“Appeals Court”).
S.A. at 9, 11. On March 18, 2014, the Appeals Court upheld
Cabrera's conviction. D. 1 at 2. Cabrera then filed an
application for further appellate review with the
Massachusetts Supreme Judicial Court, but that court denied
his application on July 30, 2014. Id. Cabrera filed
the instant Petition, challenging the state court conviction
with this Court on October 26, 2015. D. 1. Medeiros opposes the
Petition. D. 15, 23.
The Trial Court Did Not Violate Cabrera's Right to
first asserts that he is entitled to habeas relief because
the trial court violated his right to confrontation by
allowing Detective Withrow to testify as to Seang's
out-of-court identification of Cabrera as Pich's shooter.
The Confrontation Clause of the Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The Confrontation
Clause requires that criminal defendants be provided
“an adequate opportunity to cross-examine adverse
witnesses.” United States v. Owens, 484 U.S.
554, 557 (1988). In the instant case, Cabrera objects to
Detective Withrow's testimony that Seang claimed to be
“100 percent sure” that Cabrera was the shooter.
D. 1 at 5. Although Cabrera concedes that Seang testified at
trial-and so was available to be cross-examined-Cabrera
argues that Seang's conduct on the witness stand
effectively precluded his trial counsel from cross-examining
Seang as to the identification, such that Detective
Withrow's testimony should have been excluded because
Seang was essentially “unavailable” for
cross-examination. D. 2 at 6 (citing Crawford v.
Washington, 541 U.S. 36, 68 (2004)).
Appeals Court nevertheless affirmed the trial court's
decision to admit Detective Withrow's testimony, resting
its decision on Commonwealth v. Cong Duc Le, 444
Mass. 431 (2005). Cong Duc Le presented a similar
set of facts and the Supreme Judicial Court in that case held
that a prior identification is admissible even when the
identifying witness subsequently denies the prior
identification. Id. at 438. Accordingly, the Appeals
Court concluded that the Confrontation Clause requires only
an opportunity for a criminal defendant to cross-examine a
witness regarding his extrajudicial statement. D. 2-1 at 3.
Because the trial court “did not limit the scope of
[Cabrera's] cross-examination of Seang, nor was it
impeded by the assertion of a privilege, ”
Cabrera's confrontation right was not violated.
Id. Indeed, as the Appeals Court observed,
“the most successful cross-examination at the time the
prior statement was made could hardly hope to accomplish more
than ha[d] already been accomplished by the fact that the
witness is now telling a different, inconsistent
story.” Id. (alteration in ...