United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS
ALLISON D. BURROUGHS DISTRICT JUDGE.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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. 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. 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.
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. 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.
[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.
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 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
[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].
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].
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].
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
(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).
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).
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).
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).