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Yacouba-Issa v. Calis

United States District Court, D. Massachusetts

March 25, 2019

DANIEL CALIS, JR., Respondent.



         On September 1, 2011, following a jury trial in Middlesex Superior Court, Petitioner Souleymane Yacouba-Issa (“Petitioner” or “Mr. Yacouba-Issa”) was convicted of murder in the first degree on a theory of deliberate premeditation, in violation of Mass. Gen. Laws ch. 265, § 1. Petitioner was sentenced to life in prison.

         Before the Court is Mr. Yacouba-Issa's petition (the “Petition”) for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. [ECF No. 1]. The Petition raises six grounds for relief: (1) the trial court violated Petitioner's right to an impartial jury free from discrimination (“Ground One”); (2) the trial violated Petitioner's rights to due process and a fair trial when the trial court imposed unreasonable and prejudicial sanctions (“Ground Two”); (3) Petitioner was denied effective assistance of counsel and a fair trial because his counsel's conduct resulted in prejudicial sanctions at trial (“Ground Three”); (4) Petitioner was denied effective assistance of counsel and a fair trial because his counsel failed to challenge the scientific reliability of DNA test results (“Ground Four”); (5) Petitioner was denied effective assistance of counsel and fair trial after his counsel failed to object to the prosecutor's statements about and characterization of DNA evidence during trial (“Ground Five”); and (6) Petitioner was denied effective assistance of appellate counsel when his appellate counsel failed to raise the claims under Grounds Three, Four, and Five on direct appeal (“Ground Six”). [ECF Nos. 1, 1-2]. For the reasons stated herein, the Petition is DENIED.


         In Commonwealth v. Issa, 992 N.E.2d 336 (Mass. 2013), the Massachusetts Supreme Judicial Court (“SJC”) described the facts of this case, which this Court now “supplement[s] with other record facts consistent with the SJC's findings.” Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009) (quoting Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006)).[1]

         The SJC stated the following facts relevant to Petitioner's grounds for habeas relief:

[Petitioner] and the victim had dated, lived together, and parented a daughter, who was born in 2005. . . In March, 2009, they no longer lived together, but [Petitioner] often visited and stayed overnight at the victim's home in Waltham, where she lived with her eighteen year old son and three and one-half year old daughter. In the months leading up to her death, the victim and [Petitioner] had been planning to initiate a cleaning business. [Petitioner] lived in Taunton and, unbeknownst to the victim's family, had married and was living with his wife, Susan Dubuc . . . .
On the evening of March 20, 2009, [Petitioner] visited the victim for three hours at her home, where they tested cleaning products. On March 21, a sister of the victim (Guile Sautier) and her family visited the victim at her home, and remained there from approximately 4:30 p.m. to 8:30 p.m. At approximately 10:15 p.m., the victim telephoned her teenage son and asked him to come home to take care of his sister because she had to “meet him at a site”; her son understood her to mean that she was going to meet [Petitioner] at a cleaning site. Her son returned home around 10:30 p.m., and the victim soon left. At approximately 10:50 p.m., the victim telephoned her son and asked if he wanted her to bring him something to eat. The victim did not return home the next morning and did not answer her son's telephone calls, so the son contacted the victim's two sisters and [Petitioner]. [Petitioner] told the son that he had not spoken with the victim since 6:30 p.m. on March 21, and that he had not met with her that evening.
The victim often visited another sister, Yves Nelson, who lived nearby in Waltham. The victim had keys to Nelson's apartment. Nelson had stayed overnight with relatives on March 21 and returned home to her apartment at approximately 4 p.m. on March 22. After unlocking the apartment door, she found the victim lying on the living room floor, apparently lifeless, and telephoned 911.[2] The victim's pants had been pulled down, there were bleach stains on her jacket and on the rug near her body, a capped needle from a syringe was on the floor a few feet from her body, and a small piece of dark blue string was next to her shoulder. The victim showed signs of rigor mortis, and was later declared dead.
At the crime scene, apart from the piece of dark blue string on the floor next to the victim's shoulder, investigators observed a brown mark around the victim's neck, a tiny piece of string embedded in her neck, and a piece of dark blue string around the right side of her neck. A medical examiner opined that the victim's death was caused by strangulation by ligature. A swab taken from the broken string found near the victim's right shoulder was submitted for Y-chromosome short tandem repeat (Y-STR) deoxyribonucleic acid (DNA) testing, which looks only at DNA from the Y-chromosome, found only in males, and compares the questioned DNA profile, not with a particular individual's DNA profile, but with the DNA profile of the paternal lineage of a family.[3] The Y-STR DNA testing revealed that [Petitioner]'s paternal lineage was a potential contributor of the DNA profile taken from the string; the probability of inclusion was one in 1, 156 in the African-American population, which meant that the DNA on the Y-chromosome of 99.91 per cent of African-American men would not match the DNA profile from the string.[4]
The police also removed a gummy substance that covered the peephole on the door leading into Nelson's apartment. Short tandem repeat (STR) DNA testing was conducted of a swab taken from that substance, and [Petitioner's] DNA was found to be a potential contributor to the DNA from that swab. The probability that a randomly selected individual would have that DNA profile was one in 66.23 quadrillion for the African-American population.
[Petitioner] stipulated at trial that the white residue on a capped needle from a syringe found near the body was acetaminophen and codeine. Toxicological testing performed by the Commonwealth revealed that neither drug was present in the victim's body. [Petitioner] worked in a quality control laboratory where he had access to an area that required a special pass for admittance where capped needles of the same size and type were stored in an unlocked drawer.
Waltham police Detective Lieutenant Brian Navin and Detective Patrick Hart arrived at Nelson's apartment at 5:40 p.m. but were soon summoned back to the police station after being told that the victim's former boy friend ([Petitioner]) had arrived at the station. Navin and Hart spoke with [Petitioner] in an upstairs room at the station for approximately thirty minutes; the interview was not recorded. The interview began with [Petitioner] answering the detectives' questions about the victim's physical and mental health, which they asked because they did not yet know what caused the victim's death. [Petitioner] described his whereabouts on the previous day. He said that he had gone to Nelson's apartment at 6:30 p.m. on March 21 to pick up his daughter (who was not there), and met with the victim for approximately one-half hour. He said that the victim had invited him inside the apartment, but he remained in the entryway. He said that he then went to the victim's apartment in search of his daughter, but nobody was home, so he left. He said he then drove to pick up Dubuc, who was waiting for him at a pharmacy in Waltham, and went with her first to a restaurant in Waltham and then to a department store in Waltham. He said he then left Dubuc at a tavern in Waltham at approximately 9 p.m., drove back to the victim's apartment (and found no one home), drove to a brother's residence in Waltham to pick up mail, returned to the tavern, and drove home with Dubuc to Taunton.
Other evidence contradicted the time line given by [Petitioner] concerning his whereabouts on March 21. He told the police that he spent time with the victim at Nelson's apartment at 6:30 p.m., but the victim was at her home with Sautier and her family from approximately 4:30 p.m. to 8:30 p.m., and had stepped out for only a few minutes to retrieve a pair of pliers from her vehicle. Independent evidence corroborated that [Petitioner] had left Dubuc at a tavern in Waltham at approximately 9 p.m., but, although Dubuc had stepped out of the tavern and returned, she did not finally depart until approximately 11:40 p.m., which is substantially later than the time necessary for [Petitioner] to have left the tavern, gone to the victim's apartment to find no one home, pick up mail at his brother's home in Waltham, and return to the tavern to pick up Dubuc. Cellular telephone records revealed that Dubuc repeatedly telephoned [Petitioner] between 9:46 p.m. and 11:40 p.m., but there is no record of his receipt of these calls or the location of his telephone during this time period, which suggests that [Petitioner]'s telephone was turned off or without battery power during this time period. The next call involving the [Petitioner]'s telephone occurred at 12:39 a.m. on March 22, at which point the telephone was located in the Taunton area.[5] The discrepancy in this time line is critical because, according to cellular telephone records, the victim was alive at 10:54 p.m. on March 21, when she made her last telephone call, which was to Nelson.[6]
[Petitioner] was indicted by a grand jury in May, 2009, on a charge of murder in the first degree and a charge of stalking, in violation of G.L. c. 265, § 43 (a). On November 12, 2010, a jury convicted [Petitioner] of stalking but could not reach a verdict on the murder indictment. He was retried on the murder indictment in August, 2011, and convicted. The jury at the second trial did not learn that [Petitioner] had been convicted of stalking the victim.

Issa, 992 N.E.2d at 340-43.

         The day after Petitioner was convicted of murder, the trial judge sentenced Petitioner to life in prison. [ECF No. 26 at 9-10]. Petitioner appealed to the SJC arguing that:

(1) he was denied his state and federal constitutional rights to equal protection, a fair trial and an impartial jury by the prosecutor's use of a peremptory challenge to remove the only black male venire member; (2) he was denied his state and federal constitutional rights to due process and a fair trial by the trial court's cascading sanctions based on the finding that trial counsel had violated the reciprocal discovery obligations concerning the pants and jacket depicted in the TJ Maxx surveillance video; (3) the trial court erred by not giving a DiGiambattista instruction[7] and thus denied the petitioner a fair trial; (4) the prosecutor's closing argument was improper in many important respects and violated the petitioner's rights to due process and a fair trial; and (5) the trial judge violated the petitioner's constitutional rights to due process and a fair trial by failing to give his theory-of-defense instruction.

[Id. at 10]. The SJC rejected Petitioner's appeal and affirmed his murder conviction. [Id.]. On October 6, 2014, Petitioner filed a motion for new trial in Middlesex Superior Court. [Id.]. In his motion, Petitioner argued that his counsel provided ineffective assistance in several ways:

by violating a discovery order and “ambushing” the prosecution by introducing into evidence the clothing which [Petitioner] had allegedly worn on the night of the murder; by not challenging the admissibility of evidence concerning DNA found on a drawstring and fingernail clippings; by not objecting to mischaracterizations of the DNA evidence by the prosecutor's DNA expert and by the prosecutor herself; by the combined effect of his trial counsel's errors and omissions; and by his appellate counsel's failure to raise the ineffectiveness of his trial counsel as part of the appeal from his conviction.

[ECF No. 1-3 at 1]. On June 7, 2016, the motion judge, who was also the trial judge, denied the motion for new trial stating, inter alia, that the issues raised by Petitioner did not constitute ineffective assistance of trial counsel; thus, appellate counsel was not ineffective for not raising the claims on appeal. [Id. at 1-12].

         On July 1, 2016, Petitioner sought leave from the SJC to appeal the trial court's denial of his motion for new trial. [ECF No. 26 at 12]. On October 17, 2016, the SJC denied leave to appeal pursuant to the gatekeeper provision of Mass. Gen. Laws ch. 278, § 33E. [ECF No. 1-4].

         On October 21, 2016, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254 raising the six grounds stated above. [ECF No. 1, 1-2]. Daniel Calis, Jr. (“Respondent”) answered the petition on December 21, 2016. See [ECF No. 11]. Petitioner filed his Memorandum in Support of the Petition on March 30, 2017, [ECF No. 25], Respondent filed his Memorandum in Opposition to the Petition on May 31, 2017, [ECF No. 26], and Petitioner filed his Reply on June 29, 2017, [ECF No. 27].


         A federal district court's review of a state criminal conviction is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). See 28 U.S.C. § 2254. The AEDPA permits federal courts to grant habeas relief after a final state adjudication of a federal constitutional claim only if that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established Supreme Court precedent if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently from a decision of the Supreme Court on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is considered an unreasonable application of Supreme Court precedent if the state court identifies the correct legal rule but unreasonably applies it to the facts. Id. at 407-08. An unreasonable application requires “some increment of incorrectness beyond error.” Norton v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (internal quotation marks omitted).

         A state court judgment is based on an unreasonable determination of the facts if the decision is “objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “The petitioner carries the burden of proof.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In conducting a habeas review, a federal court is limited to deciding whether the conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Furthermore, “[e]rrors based on violations of state law are not within the reach of federal habeas petitions unless there is a federal constitutional claim raised.” Kater v. Maloney, 459 F.3d 56, 61 (1st Cir. 2006).

         A federal court cannot grant habeas relief to a state prisoner unless the prisoner has first exhausted his federal constitutional claims in state court. 28 U.S.C. § 2254(b)(1)(A). “[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A claim for habeas relief is exhausted if it has been “fairly and recognizably” presented in state court. Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)). In other words, “a petitioner must have tendered his federal claim [in state court] in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.” Id. (internal quotation marks and citations omitted).

         “[A] state court decision that does not address the federal claim on the merits falls beyond the ambit of AEDPA. When presented with such unadjudicated claims, the habeas court reviews them de novo.” Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010). Yet, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011).

         III. ...

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