Petition for Writ of Certiorari — Abder Salim, Petitioner v. Stephen Kennedy, Superintendent, Old Colony Correctional Center

Supreme Court briefAug 8, 2023

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SUPREME- COURT OF THE UNITED STATES

Docket Nos.

PETITION OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

filed

Abder Salim Pro se

Petitioner

'AyG 0 8 2023 H n

!.'■ \

-i

M V.: / r'

Stephen Kennedy

Respondent

Date ;

Abder Salim Pro se

W38284

Old Colony Correction Center

One Administration Rd

Bridgewater, MA 02324

y-z)'- 23

L-’MI

QUESTIONS PRESENTED:

1.)

Given that petitioner is from Palestine, His English

has alwavs been poor, his second language is Spanish

his history with mental health in years leading up to the

arrest, his recent diagnosis having profound dementia,

Shouldn't his lateness in filing habeas petition based upon

the 2005 DNA test of blood under the victim's fingernails

be excused- especially since contrary to the prosecution in

summation that it was your petitioner's blood, the 2005

test establishes concretely that it W^s not his DNA?

2.)

Based upon his (your petitioner's) established

mental impairment, shouldn't his being unaware of his

previous habeas petition (from 1989) and thus his helper s

failure to properly move the First Circuit for leave to

file successive petition be excused?

Respondent did not

produce the previous petition, and the disposition was

not published on the prison law library computer.

When he filed his appeal to First Circuit Court of Appeals

«. •

he did contemporaneously file motion for leave to file

successive petition.

3.)

Was it error for the Court of Appeals for the First

Circuit to refuse to consider the March 2022 medical

report of Dr. Nichole Mushero diagnosing petitioner with

dementia for the limited inquiry of tolling the filing time

for hebeas corpus where respondent (superintendent of prison)

and his staff prevented it from being discovered any earlier?

{

List of All Parties:

Abder Salim Pro se

Inmate Number W38284

Old Colony Correction Center

One Administration Rd

Bridgewater, MA 02324

Petitioner

Stephen Kennedy

Respondent/ Superintendent

Old Colony Correction Center

One Administration Rd

Bridgewater, MA 02324

Todd Blume

Assistant Attorney General for Massachusetts

Counsel for Respondent

Office of the Massachusetts Attorney General

Criminal Bureau

One Ashburton Place

Boston, MA 02108

TABLE OF CONTENTS:

Page

Item

Questions Presented

List of All parties

3-6

Table of Contents including contents of appendix

Table of Authorities

Jurisdictional Statement

Opinions Below

Statement of the Case

Legal Argument with Authorities

Question One

Question Two

Question Three

Conclusion

Statement of Compliance Rules of SCOTUS

Word Count

Certificate of Service

APPENDIX TABLE OF CONTENTS (alternate numbering system)

1,2

Judgement U.S. Court of Appeals First Circuit

Nos. 21-1799 March 28, 2023 (rehearing en banc

denied June 6, 2023)

Ruling 1st Cir. will take notice of any state

court documents and documents otherwise would

be appropriate Aug 1, 2022

Notice of Appeal Nos.

Habeas Corpus denied Sept. 10, 2021

Certificate of Appealability (C0A) granted

7-32

Report and Recommendation Magistrate Paige

Kelly August 16, 2021

1;20-cv-l1539-PBS

TABLE OF CONTENTS (cont)

Page

Item

33-39

Massachusetts Supreme Judicial Court denies

leave to appeal July 9, 2020

AO-42

Trial Court denied motion for new trial

Sept. 3, 2019

Court of Appeals First Circuit denied pet.

for rehearing enbanc June 6, 2023

44,45

Court of Appeals First Cir. denies motion

to expand COA

46-53

Massachusetts Supreme Judicial Court rescript

(direct appeal) Com v Salim 399 Mass 227 (1987)

54-64

Judge Mazzone dismisses previous habeas petition

Nos. 87-2818 (1989)

United States Constitution Amendment Fourteen

Section One

66-72

Medical Report Nicole Mushero, M.D., Ph.D.

March 31, 2022

73-74

US News and World Report July 6, 1987

article on Muslims in precincts of Palestine

;jscourging themslves in bereavement

"Islam: Seeking the Future in the Past"

Logan Airport Journal Dec. 12, 1972

"Romeo and Juliet- Leabanese Stryle"

76,77

testimony from first trial from two of

defendant’s brothers

78-80

police report interviews with neighbors

day after the murder indicating she was

see sitting on steps between hers and the

neighbors house the day of the murder

between 2:00pm and 2:45pm

Lab test result indicating tuft of hair

stuck to victim's wrist did not match petitioner

or victim

82,83

Grand Jury testimony of Amin Hamdi in which

he states Salim had bleeding scratches at

10:30 am the day of murder

TABLE OF CONTENTS (cont)

Page

Item

84, 85

Two schoolteachers testimony,that five minutes

before Salim discovered his wife's body while

he picked up the kids at school they noted,

"nothing unusual" (ie. bleeding scratches on

his face and neck)

86,87

DNA test result proving that the victim Fatima

Salim did not scratch Salim's face and neck.

88,89

police inventory of evidence from scene

(Green fiber taken from under victim's nails)

90-107

old psych records of Abder Salim

107-114

Affidavit of Edwin Mercado English and Spanish

115-119

Affidavit of Jacobo Reyes English and Spanish

120-121

Affidavit Dr. Hamzeh Deeb Mustafa March 12, 2006

122-123

Affidavit Shafeek Salim TaHa Hamdi May 24, 2007

124

Affidavit Halimah Amin Rabah Hamdi

125

Affidavit Imam Rabah Hamdi

126-127

Affidavit Husnia Hussin Ghannam Aug.

128-130

Affidavit of Carol Barry

131-138

Affidavit of New Bedford Police, William Westgate Jr.

136-141

Affidavit of Imam Talal Y. Eid Sept. 8, 2006

142-146

Affidavit Hamed Abusabiha Dec. 23. 2005

147-149

Affidavit of Raouf Aly May 1,2006

150-153

Hon. Richard E. Welch (Trial Court) letters

his Honor wrote trying to get U.S. govt, to

allow two percipient witnesses clearance from

immigration to enter United States to testify

that they personally heard Salim's father Bishara,

and Salim's brother in law Amin Hamdi confess

11,

1999

TABLE OF CONTENTS (cont)

Page

Item

150-153

...conspiracy to murder Fatima for reason

of family disgrace in rejecting traditional

religious values and becoming thoroughly

westernized.

154,155

Letter from former Salim lawyer Robert Keefe

trying to secure permission for material witnesses

to fly from Jordan, (they had a block on both

from entering United States because a US citizen

who has since died expressed extreme fear of

the two witnesses).

TABLE OF AUTHORITIES:

Page

Item

8,15,16,

17,22,30

Commonwealth v Abder Salim 399 mass 227 (1987)

Gomez v Jaimet 350 F3d 673 (7th Cir 2003)

Griffin v Johnson 350 F3d 956 (9th Cir 2003)

9, 28

Grillette v Warden 372 F3d 765 (5th cir 2004)

Holland v Florida 360 US 631 (2012)

House v Bell 547 US 518 (2006)

22,26,

McQuiigin v Perkins 185 LEd 2d 1019 (2013)

133 S. Ct 1924 (2013)

Riva v Ficco 615 F3d 35 (1st Cir 2010)

Schlup v Delo 513 US 298 (1995)

Title 28 USCS section 2254(e)(2)(A)(ii)

United States Constitution Amendment XIV

Section One

•7

Jurisdictional Statment:

The Supreme Court of The United States has primary

appellate jurisdiction in all cases under Article III section

II of the United States Constitution.

Specifically Abder

Salim suffered a fatal Due Process violation under the

Fourteenth Amendment when the prosecution stressed in

summation to the jury that the scratches on Salim's face

were caused by the victim in her death throes, and that

it was Salim's blood under her fingernails.

The

Massachusetts Supreme Judicial Court in affirming reiterated

this false condemnation Com v Abder Salim 399 Mass 227, 23jD,

251-233 (1987).

DNA analysis was not scientifically possible

at time of trial and was financially unavailable until around

1995 or thereabouts.

In 2005 the Court allowed Salim's

motion to test the DNA under the victim's fingernails, (blood

evidence) and the result was no male DNA detected,

other words, the scratches upon Salim's face were not caused

by the victim, and that Salim's explanation that in his

region of Palestine it is a common expression of bereavement

to scratch ones self or otehr self abuse, which, although

strange and foreign in this geographical region, not so

strange in Salim's native Palestinesee appendix pgs 73, 74)

As on point for relevant jurisdiction in the instant

pleadings, the Commonwealth through counsel has successfully

argued that Salim's petition should not be granted because

it was untimely, and that it was an unauthorized second petition.

But Salim has provided ample evidence and legitimate excuse

why the clock should be tolled- he has documented mental health

history dating to before the crime was committed, his language

is Arabic, and the second language he learned was Spanish,

his English has never been

good, his counsel in 2005 when

the DNA result was established ADVISED SALIM THAT THE DNA

RESULT WAS WORTHLESS BECAUSE IT DID NOT POINT TO AN ALTERNATE

SUSPECT.

Salim is a person who is significantly impaired

and that was what counsel told him.

It took many years for

Salim to find inmate to help him and find the blunder and

fashion coherent pleadings.

So specifically to this issue

of tolling this Court's jurisdictional inquiry should be

under 28 USCS section 2254(e)(2)(A)(ii),

"a factual predicate

that could not have been previously discovered through the

Please examine Grillette v

exercise of due diligence..."

Warden 372 F3d 765 (5th Cir 2004) where several different

grounds for tolling existed and counsel in that case was

arrested for using and manufacturing crystal meth and refused

to hand over the accused's legal papers.

Salim has also proferred a late filed exhibit that the

First Circuit accepted, a newspaper clipping from 1972 which

documented the blood feud between Salim's and his wife's

families, and numerous affiants that heard Salim's father

admit to having killed the victim along with Hamdi,

The First Circuit erred when it refused to consider a

previously unavailable report of Salim's profound dementia.

.^General jurisdiction at Title 28 section 1254(1) USC.

9 1/2.

Salim's one and only actual appellate review was on

Decided Feb. 17, 1987 (direct appeal) by the Massachusetts

Supreme Judicial Court Com v Abder Salim 399 Mass 227 (1987)

(appendix 46) .

The issues of the instant pleading of the

DNA under the victim’s fingernails was denied by the trial

court as his fifth motion for new trial, (even though two of

his new trial motions were consolidated) on Sept. 3, 2019,

(appendix 40).

Your petitioner applied to the Supreme judicial

Court pro se in so-called gatekeeper petition, and that was

denied July 9, 2020 by Single Justice (appendix 33).

United States District Court Magistrate M. Page Kelley made

a recommendation to deny petitioner’s habeas corpus petition

August 16, 2021 which appellant lodged an objection to (appendix

Pg 7) .

United States District Court Judge Patti B. Saris

adopted Magistrate’s opinion in a one sentence handwritten

denial dated Sept. 10, 2021 (appendix 5).

appealed to First circuit Court of Appeals,

Petitioner timely

That Court

affirmed petitioner's denied habeas corpus March 28, 2023,

(appendix 1) .

(timely notice of appeal to file with the

First Circuit Court of Appeals at appendix 4).

filed timely request for rehearing en banc.

Petitioner

Rehearing

en banc was denied by the First Circuit June 6, 2023,

(appendix 43).

Petition for certiorari was docketed as received by

supreme Court of the United States Aug. 15, 2023 and returned

to petitioner with instruct to correct missing items from

jurisdictional statement and more elaborate financial statement.

OPINIONS BELOW:

Petitioner Abder Salim's wife was murdered by multiple

punctures and other bruising injuries on July 28,

1978.

Salim was called that evening to the school to pick up his

children because it was usually his wife who did so.

When

he and the children arrived at the family home they discovered

Fatima Salim dead on the floor.

The police were called,

Lt Duemling and Lt Frechette

made lots of notations about Salim scratching his own face.

They told him to stop that.

Salim was crying.

indicted for his wife's death shortly after,

trial ended in mistrial Feb. 12,

1980.

He was

His first

At this juncture it

is material to note that in Salim's first trial witness

Carmelo Montanez testified he was Salim's brother in law's

driver (Hamdi) who around the time of the murder ordered

Carmelo to pull over a short walking distance from Salim s

house at which point he exited the van for an amount of time

and returned.

At Salim's second trial midway through the

proceedings Lt Duemling and Lt Frechette took Carmelo Montanez

from the courthouse for "a ride" in an unmarked cruiser and

when they returned to court, Carmelo Montanez had changed his

testimony to something radically different- he was told to

pull over the van a much longer distance away from Salim's

home, and also different was that Hamdi only exited the van

a couple minutes instead a much longer one depicted in the

first trial.

Salim was found guilty June 1, 1981.

There were four previous motions for new "trial, most

pro se , (filed by inmates for Salim) and one counseled.

None of them were granted appellate review by the state:'s

highest Court, (FAR denied),

The fifth and gravamen of

the issues of this instant pleading similarly was not granted

further appellate review, and Salim has been pro se from

the trial court where his present jailhouse lawyer took him,

to the Massachusetts Supreme Judicial Court, (FAR denied)

•s

to the United States District Court, then the First Circuit

Court of Appeals, then request for rehearing en banc, and

now here on the doorstep of The Nation's Highest Court- all

pro se.

There are no published reports of any of his

first four motions for new trial, not in the trial court,

and not the SJC.

The Commonwealth of Massachusetts made their

summary dismissal (FAR denied) in the SJC unpublished.

It is not easy at this stage of the pleadinsg to parse out

the pleading history because Salim did not keep good records.

Salim is also given to periods of fugue state where he has

cognitive disconnect,

Within .the past year he was given some

previously unavailable evidence- he has profound dementia.

The respondent superintendent of the prison Stephen Kennedy

and his administration have systematically kept Salim from

any medical experts that may wish to treat dementia because

Kennedy knows that would be a grounds for medical parole

in Massachusetts.

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..Prisoner Legal Services, (50 Federal Street 4th Floor,

Boston, MA 02110) sent a doctor to examine him in the non

privacy of the prison visiting room, and thats where the

previously unavailable evidence that Salim has profound dementia

came from,

(report of Nichole Mushero, MD appendix

This is of course Salim's third question for the Court, whether

it was error for the First Circuit to refuse to consider

Dr. Mushero's report for the limited inquiry of tolling

the clock for Salim's unusually long time to file Federal

Habeas Corpus, (the DNA test result was 2005, but his counsel

told him its worthless), and to excuse his lapse in failing

to first move for leave to file successive petition where

he is largely incoherent, there is not report of previous

petition for habeas corpus on the prison law library computer,

it was

the respondent's counsel did not provide said report,

only provided by Magistrate Paige Kelly in her lengthy

condemnation of Salim's petition for habeas corpus.

Magistrate

Kelly (who might be judge now) did admit in her condemnation

that the respondent did not provide a copy of the disposition

of previous petition by Judge Mazzone (1987), (appendix ffe «*7).

One of the previous motions for new trial raised the

issue of first trial witness Edwin Mercado^submitted an

affidavit that Salim's brother in law Amin Hamdi, (Salim's

doppleganger) and another man offered him money to say Salim

killed his wife- Mercado was unavailable at second trial,

and his first trial testimony was admitted over objection,

(probable cause hearing testimony from first trial).

Another affiant was also profferred in that first motion

for new trial, Jacobo Reyes who never testified at either

Salim's first or second trials, but he offerred testimony *:

by affidavit that Amin Hamdi and another man offered him

money to say Salim killed his wife./ Unlike Mercado he

flatly refused, (appendix|'©7-f{'$both affidavits which trial

court flatly rejected).

At some point Salim was advised by another jailhouse lawyer

to claim denial of Due Process because his attorney failed

to have him plead not guilty by insanity, not understanding

that is akin to adoptive admission of guilt,

That motion

flatly denied without hearing.

Another motion for new trial was filed by paid counsel

raising the issue of untested DNA under the victim'ife fingernails

and nine affiants whom all had personally heard Amin Hamdi,

or Salim's father Bishara, and some both admit having conspired

to kill Salim's wife Fatima.

These are in the appendix

including a plainclothes New Bedford police detective

(Westgate) at a barbeque, and a prominent Muslim Imam who was

an attache and advisor to United States preads-ni Barack Obama.

(Please see appendix pgs

I3T - l*H

These are not presented as constitutional issues, but

merely to establish the whole trial was thoroughly infected

with non harmless constitutional error.

United States Magistrate Paige Kelly who wrote the recommendation

to dismiss Salim’s habeas petition stated in it that the

evidence was overwhelming against Salim, (appendix f I

Yet the trial judge in Salim's first trial commented that

this was not an overwhelming case of guilt Tr 4250 (first trial).

And the trial judge in Salim’s second trial also commented

on the underwhelming case of the prosecution, Tr 1389 (second trial).

United States Magistrate Paige Kelly also commented that

Salim is incapable of drafting coherent pleadings himself,

Yet United States District Court

n.9) .

(appendix pg )8

Judge Patti Saris issued a one line ruling saying she agreed

with Paige Kelly no other comment given other than COA

would issue, which Paige Kelly had opined against.

Judge Patti

Saris' ruling appendix

, (not yet

listed on the law library computer at the prison- no cite

available).

The Court of Appeals for the First Circuit issued a

short brief ruling denying the appeal without referring

to any evidence, only Paige Kelly’s recommendation,

appendix

,(no cite available yet on the prison

computer.

Salim timely filed for rehearing en banc which was

denied June 6, 2023 without any reference to evidence,

(appendix

The sole issue at Bar is the DNA evidence of the blood under

the victim's fingernails and the wrong treatment he got.

At some point, (it is unclear from the record, two separate

motions for new trial were amalgamated into one motion, and

this writer does not know which two) and that is the history

The first habeas corpus petition that

of Opinions below,

made the instant one a successive petition is an unpublished

opinion parroting each issue and argument that the direct

appeal raised and was rejected by the Massachusetts Supreme

Judicial Court, Com v Abder Salim 399 Mass 227 (19871.

Those were seven issues with the main one being that Salim s

second trial counsel (counsel for second trial) had an illegal

fee arrangement.

Salim's appointed appellate counsel Jane

White spent (according to her work sheets) most of her energy

trying to prove Salim was secretly rich and appointed counsel

was inappropriate.

Salim will provide the previous habeas

disposition that was unreported, his ability to mail large

packages is weak.

It has the same issues as his direct

appealj CA^pe.fl^

Statement of The Case:

Salim's wife failed to pick up their two children .a-t* ^-/3

ItS

7 .

'4:30pm from school on Friday July 28,

1978.

Two school

teachers at that school called Salim at his store, (he was

self employed and had some employees) and requested he pick

up their children.

The two teachers were Patricia Guymont,.

and Patricia Meade,

(appendix

SHj QS ).

Patricia Meade

testified of his appearance and mood just minutes before he

and the children discovered Mrs. Salim, (her name was Fatima)

dead on the living room floor of their family home.

Patricia

Meade testified he was cheerful and there was:.nothing unusual

about him. Don’t you think that if Salim had deep scratches

on his face and neck that bled for most of the afternoon

as the prosecution stressed, that the two teachers would have

made a different comment about his appearance just minutes

before finding the body?

In Salim’s rescript from the Massachusetts Supreme Court,

399 Mass 227. at 233;

"The scratches on the defendant's neck, face, and

collar bone were consistent with injuries which may have

The

been inflicted by the victim'So last struggle

jury were not required to believe that the defendant’s

scratches were the result of his mourning..."

Here’s what the prosecutor stressed in summation at Salim's

(Tr of second trial pgs 2299 to 2301:)

"...the scratches, on his face..but it shows the

scratches down in this area...the only part you can.,

reach would be there...with a person doing this.,

and the victim reaching back...and what did the chemist

state to you?...that there were small bits of blood

underneath the fingernails, and those scratches are

And remember what the defendant.

c ■ , perfectly consistent.

And remember this...

said about those scratches

(Detective) A1 Duemling also testified to you that as

he scratched the marks went down and then sort of

disappeared, but those deep.er scratches with little

bits of blood, consistent with what was found under

the fingernails, those didn’t go away.."

In 2005 after much opposition from the Essex County District

Attorney the judge allowed bits of blood under Fatima's

fingernails to be DNA tested but only if Salim paid for the

testing,

($3,000.).

Result?

No male DNA detected, (appendix

lo>

At the very least Salim has established that Fatima did not

scratch him on July 28 » * 1978, so that portion of the SJC

mantra and the D.A.'s theory was/is false.

What else did the SJC say in affirming?

"Taken together, this MOSAIC of evidence consisting of

of PHYSICAL EVIDENCE, the tools, the physical abuse

of the victim by the defendant shortly before the

murder, the threats to kill her, the repeated offers

of money to others to kill her...."

Id at 233.

There were two witnesses who testified that Salim

- ; ; '

? :i - ' ; i

offered them (separately) $2,000. to kill his wife.

Rosario only

They were Edwin Mercado, and Jesus Rosario,

testified at Salim's probable cause hearing where he was

available to cross examination.

Edwin Mercado testified

at Salim's first trial which ended in mistrial, and was

missing and declared unavailable for second trial

Both

missing witnesses testimony was allowed in recorded form

over objection to be recited to the jury at second trial.

In 1995 Mercado recanted his testimony and executed and

affidavit in Spanish and English that the police came to

California to get him and told they would get his charges

dismissed if he would testify against Salim and lie about

him offering him $2,000. to kill his wife,

Although he

maintained Salim had asked him for a gun, Salim did not

say what he wanted it for (appendix !

MHJ.

Although Jesus Rosario never showed up for trial his

similar lie carried the day when his testimony was recited

to the jury of the second trial.

Interesting also in 1995

a certain Jacobo Reyes who never testified at any trial, or

hearing against Salim, provided an affidavit that he was

approached by Salim's brother in law Amin Hamdi July 29, 1978

at Jacobo Reyes‘ home along with another man,

to his affidavit,

According

Amin Hamdi urged Reyes to lie and testify

against Salim and say that he asked him to kill his wife for

him.

Hamdi offered him money and a job.

I threw him and

the other man out.of my house and notified a Spanish speaking

officer Walter Soriano..

Despite this ugly beginning to

a working relationship Hamdi nonetheless offered me a job.

I worked for him three years."

(appendix Il5*

) V?:" :)

This indicates that there was credible evidence over

the years since the conviction that some major dishonesty

went into Salim’is conviction.

These affidavits were the

substance of one of Salim's new trial motions.

They are not offered here as constitutional issues, but

exemplar of a trial that was infected with nonharmless

constitutional errors.

Whei there is police misconduct

in fashioning false evidence, Due Process rights under the

14th Amendment is triggered by appellate courts of any

jurisdiction.

In Salim's first trial two of his brother's testified

that Salim's father Bishara forbid any of the brothers to

visit Salim and his wife because she was non traditional,

Tr of first trial pgs 2029,30 appendix

This evidence for some unknown reason was not introduced

at Salim's' second trial.

It was Salim'& contention all

along that Bishar*and Hamdi killed Fatima because the

families of Fatima and Salim had been in a blood feud

for decades.

That defense theory never gained traction

until Salim kept sending bundles of papers stapled together

piggybacked to what this writer gave him to send to the court

on these issues.

Although they were not specifically mentioned

in the certificates of service the First Circuit Court of

Appeals did rule them admissible as they bear the United

i .

States District Court time stamp- but then they considered

them not at all.

One of these papers Salim kept sending without explaining

why to anyone, (he is not articulate) was a 1972 Logan Airport

.News article

(appendix

75"

) with the headline,

Romeo and Juliet Lebanese style Dec. 12, 1972

Please take the time to read this as it chronicles the

arrival in United States of Fatima freshly married to Salim

and it memorializes how she doused herself with gasoline

and threatened to kill herself if the two families would not

let them marry, and how Salim’s father Bishara kidnapped

Fatima from the airport when her feet had not been on

American soild longer than five minutes leaving Salim, crying

"My wife!

My wife!”

Palestinian customs are strange to Americans.

But both

Salim's and Fatima's families were outraged that Fatima

not only entered a beauty contest, but also posed for

photographs in a bathing suit.

Tame stuff for an American.

Not so for traditional Islamic families in and from Palestine.

Numerous people submitted affidavits around 2005.that

they heard Bishara and Hamdi admitted to conspiring to kill

Fatima, and efforts to frame Salim.

One affiants was an

off duty plainclothes New Bedford Massachusetts Police

detective at a barbeque.

Another was a prominent Imam and

member of a President's council, (appendix

Judge Welch gave up on Salim's case when all of Judge Welch s

efforts to bring two exculpatory witnesses from Jordan

who were percipient to Bishara and Hamdi admitting they

killed Fatima wound up scuttled by U.S. officials who stated

that an American citizen was afraid of the two witneses.

Thus they were blocked from entering the country.

That

un-named person has since died, and Salim's chances of

reconnecting with people in the Old Country that knew both

Bishara and Hamdi are slim now that Salim's mother has died.

These are not brought as constitutional issues, but only

to establish that the entire trial was infected with nonharmless constitutional error.

In the interests of justice

for an old man that has been in prison since 1978 with the

exception of a few months on ($1,000. bail- he could have

taken off with his passport and not came back.

He believed

in the American justice system- he says he is American citizen)

Through the prism of the DNA evidence the Court should

7 /

look at all the Dae Process violations, and excuse Salim's

tardiness in filing when the evidence came in 2005.

Salim has excusable neglect.

The clock should be tolled

under several different theories.

The lapse Salim displayed

in failing to file motion with the First Circuit Court of

Appeals on time for leave to file successive petition is

excusable neglect.

Seemingly lost to the sands of time is the major sea

change in testimony of witness Carmelo Montanez who was

Amin Hamdi's van driver, (Amin Hamdi had no driver license).

At Salim's first trial, Carmelo Montanez said that Hamdi

asked him to pull van over and park a short walking distance

from Salim's house in the middle of the afternoon.

trial had hung jury.

That

Midway through the second trial,

Police Detectives Frechette and Duemling took Carmelo

Montanez from the courthouse in an unmarked police cruiser

for a ride, and when they returned Carmelo Montanez had

dramatically changed his testimony now stating that Hamdi

had him pull the van over a much longer walking distance

away from Salim's house and unlike the first trial in which

he said that Hamdi exited the van and was gone a significant

amount of time, he now said that Hamdi was gone only a couple

minutes.

All this over defense counsel's objection.

( Tn 36^ 3&8 Vevr

The point is that Salim's second trial was infected from

start to finish with nonharmless constitutional error,

and therefore the late discovered^late filed should be fully

considered as properly filed nunc pro tunc.

Procedural errors by a pro se inmate who never fully

graspged written or verbal English, who was mislead by his

counsel in 2005 as to the worth of the DNA evidence, and

who at some point in time developed dementia that was not

discovered earlier because respondent Stephen Kennedy and

his subordinates effectively shut him out from discovering,

or treating his dementia, should not be the last word in

this case.

•' u

Legal Argument With Authorities:

The Court of Appeals for the First Circuit refused to

consider Salim's plea for equitable tolling de novo despite

the fact that Salim profferred DNA evidence not available

at his trial in 1981 nor for his direct appeal by the

Massachusetts Supreme Judicial Court in 1^87, C.Q,m—v—Sa 1 in;,

399 Mass 227. and disproves the larger portion of the

prosecution's calculus and theory of guilt.

This was

error of law, flouse v Bell 547 US 518, 539. 540 (2006);

McOuigein v Perkins 185 LEd 2d 1019, 1027^ (2013_) .

Instead,

they relied upon the recommendation of then Magistrate

iu ■

for United States District Court Paige Kelly even though

Salim proferred excellent examples of where the Magistrate

contradicted herself in her scathing opinion, (appendix

Ilf

tbj rt/T

2.2.

Salim's Dost conviction pleadings fall into three

categories:

One, are those which he prepared himself.

They are typically typed crudely in all capital letters,

with gross misspellings, and are generally incoherent.

Two, being those also pro se pleadings which Salim managed

to pay an inmate to prepare for him.

These tend to be

typed, but seldom have a proper basis in law or fact.

Three, being the few times when Salim had benefit of counsel.

Salim has extremely poor grasp .of legal concepts.

Examplar of this is his insistence on repeatedly mailing

photocopies of cancelled checks from over forty years ago

which he addresses to the courts in hopes that this somehow

will change the minds of the courts to release him because

someone mistakenly told him a long time ago that if he had

to pay his own money to an attorney at the same time when

that attorney is an appointed by the court attorney because

of his indigency, then somehow thats a magicjticket out

of prison.

Its been explained that there was no illegal

fee arrangement,

There was a contingncy explained to him

that if he's acquitted and collects the victim's life

insurance policy only then will he have to reimburse the

state for what they spent on his appointed counsel, AND

that it is acceptable to entrust small cash to appointed

counsel to hire expert or experts.

The point being that Salim’s understanding is weak.

Only in March 2022 did it finally be proven that Salim has

profound dementia, (appendix

-72. >.

Even before the

onset of this often age-related illness, Salim had significant

mental impairment, (appendix::

fO - lol

').

His English

has always been poor, and he has NEVER understood written

legal concepts,

His second language is Spanish.

Although

he did a moderate business in Lawrence Massachusetts as

keeper of his own shop, this does little to shed light on

his abilities to understand law to effectuate his own

pleadings.

U.S. Magistrate Paige Kelly in condemning

Salim's petition for habeas corpus admitted partway that

Salim probably is incapable of drafting effective pleadings,

(Report and Recommendation appendix

tt.9) .

The DNA test in 2005 which Massachusetts trial court

insisted Salim pay for, (Around $3,000.) was won by appointed

counsel and as quickly abandoned by same counsel telling Salim

the result was worthless.

That counsel instead profferred

numerous affidavits who heard Salim's father Bishara and

Salim's brother in law Amin Hamdi admitcto conspiring to

kill Fatima Salim.

Did this make sense?

No.

The affidavits

were good evidence, but adding the DNA test result would

have only strengthened Salim's position, (appendix^

produced the affidavits, and pgj(p of this brief for excerpts

of trial record and rescript indicating prosecution reliance

)

- ■?

on the scratches upon Salim's neck and face coupled with

blood under the victim's fingernails before DNA test proved

itcwas not Salim's blood.

But the entire trial was infected with non harmless

constitutional error;

the tuft of hair stuck to victim's

wrist belonging to neither Salim nor the victim,

(appendix

The green textile fiber under one of the victim's nails,

where the prosecution insisted Salim wore a white and brown

striped shirt to murder the victim, while changing afterwards

to a green shirt to hide the blood,

(appendix

. 8^8? fiO

The late presented gateway evidence of the Logan Airport

News December 12, 1972 captioned "Romeo and JulietLebaanese Style" which corroberates Salim's insistence that

his own family did this as there had been a blood feud,

(appendix

) also two of Salim's brothers testified

at Salim's first trial, but not at his second trial.

Exceprts of the first trial testimony of those two brothers

indicated that Salim's father was enforcing an ostracisation

of Salim for crossing feud lines to marry Fatima,

(appedixlSl^wF*#. 76>, 77^Salim's late filed DNA evidence does not, could not,

go stale after the results had solidified.

The prosecution

can point to no prejudice from Salim's understandable and

excusable delay.

This Court has held that unjustified (tej^y

does not automatically foreclose appellate review of DNA.

"...in a Federal Habeas Court, faced with an

actual innocence gateway claim, should count

unjustified delay NOT as an absolute barrier to

relief, but as a factor in determining whether

actual innocence has been reliably shown..."

McQuiggin v Perkins 185 LEd 2d 1019.

1027 (2013)

"...presents evidence so strong that a court

cannot have confidence in the outcome of the

trial unless the court is also satisfied that

the trial was free of non harmless constitutional

error, the petitioner should be allowed to pass

through the gateway and argue the merits of his

underlying claims..."

Schlup v Delo 513 US 298. 316 (1995)

This Court also held in McOuieein supra thatr

the AEDPA statute of limitations, instead of being tolled

equitably incorporates an equitable exception for showings

of actual innocence, 133 S. Ct 1924.

1931 (2013)

Salim has not had a fair shake in Court ever.

thing he's Palestinian.

For one

At the time of trial he was lumped

into same category as terrorists and hostage takers despite

the fact he says he is an American citzen and had an

American passport and he believed in the American justice

system and did not flee when on only $1,000. bail when

first trial ended in mistrial the judge released him on

bail.

Think about the scratches on Salim's face.

Two school

teachers minutes before Salim returned home to find his

wife's body testified there was nothing unusual about him.

(appendix 84,0*^).

Think about Salim's myriad of mental impairment factors.

"We do not doubt that a physical illness or other

health issue could also justify equitable tolling

if that issue was severe enough to actually

prevent timely filing..."

Riva v Ficco 615 F3d 35. 39.40 (1st Cir 2010); Holland.

v Florida 560 US 631. 649 (2012);

McOuigein. supra, genrally.

Question Two:

Similar in legal theory why Salim should be excused for

failing to move the Court of Appeals First Circuit for leave

to file successive petition.

U.S. Magistrate Paige Kelly admits

in her condemnation that the respondent never served upon

Salim, nor upon the Court a copy of the previous habeas petition

disposition.

There was an order of a judge ordering the

clerk to serve Salim a copy of the previous petition which never

took place.

(see appendix ^ tfi/7where Magistrate Kelly admits

£alim was not served),

The disposition of'that previous

petition was never published on the prison law computer, (we

have zero lawbooks in prison, its all electronic).

Salim's helper, this writer simply deduced from these elements

that the previous petition was never disposed of upon the merits

therefore no successive petition.

Salim keeps messy records.

Extremely messy.

Yet even though

extremely messy there was no copy of the previous petition which

was disposed of by Judge Mazzone.

This writer looked through

four photoopy paper crates full of papers and no previous petition

was extant.

No disposition.

£ u

nJl

This is a case where a confluence of extremely bad events

none of which were Salim's fault combined to deprive Salim

of Due Process under the Fourteenth Amendment to the

United States Constitution.

This is a case where all Salim's counsel failed him in

egregious ways, and Salim is not of the extraordinary mindset

that A Palestinian born shopkeeper could figure out the

legal maze and force justice to gain entry.

There are

several different grounds here for tolling the clock, and t

these same grounds also are grounds for excusing Salim's

failure to timely file for leave to file successive petition.

The first look Salim and this writer had at the previous

habeas petition and its disposition by Judge Mazzone was

when Magistrate Paige Kelly appendied it to her scathing

report and recommendation, admitting she had personal clerks

search the courthouse archives to produce a copy.

Salim should similarly be granted leave late to file

successive petition nunc pro tunc (he filed said motion

contemporaneously with his appellant brief at the First

Circuit, see generally Grillette v Warden 372 F3d 765 (5th Cir.

2004).

It should be granted nunc pro tunc.

CLuesttion Three: "

The Court of Appeals for the First Circuit erred when

they refused to consider for the limited inquiry of tolling

' /

the report of Dr. Nichole Mushero which was completely

unavailable to Salim until March 2022.

Salim's brief was

due and timely docketed October 5, 2021.

So Dr. Mushero's

report (appendix

was unavailable before that time

because respondent Stephen Kennedy as superintendent of

the prison and his whole entourage prevented Salim from

being evaluated for dementia because thats a ground for

medical parole in Massachusetts,

It was not until

a charity group heard about Salim and paid for a physician

to examine him in the prison visiting room that Dr. Mushero

got her hands and ears on Salim and made her findings.

The evididence was therefore unavailable and it was error

to exclude it for the limited purpose of tolling.

«.

was, hopefully, reversible error, Griffin v Johnson

(

350 F3d 956. 963 (9th Cir 2003).

Most of the Circuits

will consider evidence thats merely "newly presented"

rather actually new, like tariff in Id and Gomez v Jaime t

350 F3d 673. 679 (7th Cir 2003J.

Why make evidence of

actual innocence out of reach when its only because of

mental impairment the evidence was not presented sooner?

Conclusion:

The Court should grant petition for certiorari and

appoint counsel to gain Salim's release as soon as possible.

In parting comments it is fair to say that chief witness

}

for the prosecution Amin Hamdi, who figures large in sworn

statements given by neighbors and family members as having

admitted participation in the murder along with Bishara,

also figured large in the calculus of affirming Salimfs

conviction, his statement repeated twice by Supreme Judicial

Court of Massachusetts, "...the defendant hit hit his wife

and declared, "T will kill you, I will drink your blood,

I will make your death the worst." and "The defendant hit his

✓ />

wife two months before the murder and called her a whore."

Com v Salim 399 Mass 227. 232. 236 (1987) was only declared

as coming from Salim by Amin Hamdi.

Hamdi reaped a financial

windfall by Salim's incarceration.

So eager was he to nail

Salim that he testified before the Grand Jury that Salim had

changed his shirt and had bleeding fresh scratches on his

r> r

face and neck at 10:30 am the day of the murder, (appendix^^,®?).

Yet when he testified at first trial and he related this,

he was repudiated by the fact that two disinterested witnesses

in Salim1s;immediate neighborhood gave statements to police

that they saw the victim, Fatima Salim sitting on the steps

between Salim's house and the neighboring house- one at

2:45 pm and the other at 2:00pm to 2:30pm when they drove

home from work, (appendix7§ ^

•

■=*

,, y

As for self scratching in bereavement, its common in Palestine,

(see article from US News and World Report July 6, 1987 pg 34

"Islam: Seeking the FUture in the Past" (appendix! i73j"7^)~£

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.