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

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SUPREME COURT OF THE UNITED STATES

on Certiorari to The First Circuit Court

of Appeals:

Nos.

Abder Salim pro se

v

Stephen Kennedy,

Respondent superintendent

of Old Colony Correction

Center

Abder Salim Pro se

W38284

occc

1 Administration Rd

Bridgewater, MA 02324

APPENDIX OF THE PETITIONER

(table of contents

for appendix in brief)

V

United States Court of Appeals

For the First Circuit

No.

21-1799

22-1174

ABDER SALIM,

Petitioner - Appellant,

v.

STEPHEN KENNEDY,

Respondent - Appellee.

Before

Kayatta, Lynch and Montecalvo,

Circuit Judges.

JUDGMENT

Entered: March 28, 2023

Pro se petitioner Abder Salim appeals from the district court's dismissal of his habeas

petition under 28 U.S.C. § 2254, which the district court concluded was an unauthorized second

or successive habeas petition. See Bucci v. United States, 809 F.3d 23, 26 (1st Cir. 2015) ("When

faced with a second or successive [habeas] petition that has not been authorized by the court of

appeals, a district court must either dismiss the petition or transfer it to the court of appeals."); see

also 28 U.S.C. § 2244(b)(3)u\) ("Before a second or successive application permitted by this

section is filed in the district court, the applicant shall move in the appropriate court of appeals for

an order authorizing the district court to consider the application."); 28 U.S.C. § 2244(b)(2) (setting

forth gatekeeping requirements). The district court granted a certificate of appealability ("COA")

as to a single claim, "Ground One-Petitioner’s actual innocence claim based on the 2005 DNA

report."

We have carefully reviewed the parties’ filings and relevant portions of the record.

Assuming, without deciding, that de novo review applies, we affirm the dismissal of the certified

claim, substantially for the reasons set forth by the district court in its September 10, 2021, order

adopting the magistrate judge's August 16, 2021, report and recommendation. See Dorisca v.

Marchilli. 941 F.3d 12, 17 (1st Cir. 2019) (standard of review); see also McQuiggift v. Perkins.

569 U.S. 383, 392 (2013) (actual innocence general principles); Schlup v. Delo, 513 U.S. 298,

l

327-29 (1995) (same); Rrva v. Ficco, 803 F.3d 77, 84 (1st Cir. 2015) (same). With his appellate

briefing, Petitioner has failed to demonstrate error as to the district court’s conclusions that thepetition featuring the certified claim qualified as a second or successive § 2254 petition for

purposes of § 2244(b)(3)(A), that the certified claim was untimely asserted, and that transfer of the

decidedly untimely claim to this court, as opposed to dismissal, would have been futile. See Bucci,

809 F.3d at 26.

Petitioner's renewed request to expand the COA to include Ground Two of his habeas

petition is denied for the reasons set forth in this court’s August 1, 2022, order denying petitioner's

previous requests for an expanded COA.

Affirmed.

By the Court:

Maria R. Hamilton, Clerk

cc:

Abder Salim

Todd Michael Blume

Andrea J. Campbell

4

i

United States Court of Appeals

For the First Circuit

No. 21-1799

22-1174

ABDER SALIM;

Petitioner - Appellant,

v.

STEPHEN KENNEDY,

Respondent - Appellee.

ORDER OF COURT

Entered: August 1, 2022

Petitioner's motions to supplement the record, received by this court on June 21, 2022, and

July 18,2022, are denied except to the extent that the court will take judicial notice of any proffered

state court documents to the extent they are relevant for purposes of this appeal and to the extent

consideration of the documents otherwise would be appropriate. See Fed. R. App. P. 10(e); United

States v. Rivera-Rosario, 300 F.3d 1, 9 (1st Cir. 2002) (a motion under Fed. R. App. P. 10(e) "is

designed to only supplement the record on appeal so that it accurately reflects what occurred before

the district court") (quotation marks omitted). This determination is subject to reconsideration b>

the panel that decides the appeal.

By the Court:

Maria R. Hamilton, Clerk

cc:

Abder Salim

Todd Michael Blume

Maura Tracy Healey

Case l:20-cv-11539-PBS Document34 Filed 08/16/21 Page lot54

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ABDER SALIM,

Petitioner,

CIVIL ACTION NO. 20-11539-PBS l

v.

STEPHEN KENNEDY,

Respondent.

REPORT AND RECOMMENDATION ON

RESPONDENT. STEPHEN KENNEDY’S. MOTION TO DISMISS (#17).

KELLEY, U.S.M.J.

Abder Salim has petitioned under 28 U.S.C. § 2254 for habeas corpus relief from his state

conviction for first degree murder. (#1.) Respondent has filed a motion to dismiss Salim’s petition,

arguing that it is a second or successive petition that has not been authorized by the United States

Court of Appeals for the First Circuit and that, in any event, it is time-barred. (##17, 18.) For the

reasons set forth below, it is RECOMMENDED that respondent’s motion to dismiss be

ALLOWED.

I. Background.

A. Prior Proceedings in State Court.

In 1978, Salim was indicted in the Essex County, Massachusetts Superior Court for the

murder of his wife. A first jury was unable to reach a verdict. A second jury returned a verdict of

guilty of murder in the first degree and Salim was sentenced to life in prison - on June 1, 1981.

i

On January 11,2021, this case was referred to undersigned for all purposes including Report and

Recommendation on dispositive motions. (#25.)

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See #17-7 at 1, 4, 5, docket sheet in Commonwealth v. Salim, Essex Superior Court No.

7877CR97724. See also #17-1 at 2, electronic docket sheet in Commonwealth v. Salim, Essex

Superior Court No. 7877CR97724.

On direct appeal, the Massachusetts Supreme Judicial Court (SJC) affirmed Salim’s

conviction. Commonwealth v. Salim, 399 Mass. 227, 239 (1987). Salim unsuccessfully challenged

the sufficiency of the evidence, id. at 228-234; the admission of prior recorded testimony of two

prosecution witnesses, id. at 234-235; attacks on the credibility of defense witnesses, id. at 235236; the admission of bad character evidence, id. at 236-238; the appointment of an interpreter to

another prosecution witness, id. at 238; and, ineffective assistance as a result of a conflict of

interest arising from an alleged contingent fee agreement, id. at 238-239. Salim also sought relief

under Mass. Gen. Laws ch. 278, § 33E. Id. at 239.

In rejecting Salim’s challenge to the sufficiency of the evidence, the SJC set forth the facts

that the jury could have found at the close of the prosecution’s case:

Certain emergency medical technicians were dispatched to the defendant’s home

in Lawrence at about 5:10 P.M. on July 28, 1978. They found the defendant crying

and kneeling over his wife’s body. Her face appeared to have been beaten and there

• was heavy concentration of coagulated blood on her chest as well as her face. She

lay on her back and displayed no signs of life. When the police arrived, they

observed multiple puncture wounds about the neck and chest.

After a State police detective extended his sympathy to the defendant, he read him

the Miranda rights. The defendant, a native of Palestine, had emigrated from Jordan

to Lawrence. The defendant later visited Jordan and returned to Lawrence with the

victim as his wife. He became reasonably fluent in Spanish as well as in English

and was well known in the Spanish-speaking community of the Merrimack Valley.

He operated a store which sold furniture and household goods.

The defendant told the detective that he had awakened at 8 A.M. but remained in

bed until after his wife left with the children at 8:30 A.M. He drove to the store at

9 A.M. where he met his brother-in-law, Amin Rabah Hamdi. They went to a local

bank, returned to the store, and opened for business at about 10 A.M. About noon

his bookkeeper arrived and remained until about 2:30 P.M. The defendant told the

detective that his brother-in-law had left earlier, returned to the store about 3:30

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P.M., left again about 5 P.M., and returned about 5:15 P.M. He received a telephone

call from his children’s day care center at about 5 P.M., informing him that his wife

had not picked up the children. After picking up the children, he returned home

with them and discovered his wife’s body.

The defendant said that he had worn the same clothing all day and had not returned

to his house since leaving at 9 A.M. He said that he had had no marital problems,

that he was happily married, and that his wife’s death was caused by people in

Lawrence “who were out to get him.” At this juncture in the story, he pointed to an

open window and said that “[tjhese people came in the window and went out the

door” which was ajar when he came home.

The detective asked the defendant about the scratches on his face, neck, and collar

bone and the defendant explained that he had caused those marks by pulling at his

face in lamentation when he discovered the body of his wife. The defendant went

to the Lawrence police station where he spoke with other officers and repeated the

story of his day’s activities substantially as he had related it to the detective at the

scene. The detective observed that the house showed little disarray although the

victim’s pocket book had been opened and the contents dumped on the table. There

was no evidence of forced entry or any attempt to remove property.

At the station, he submitted to a series of tests, which revealed the presence of blood

on the defendant’s left palm, the back of his left hand, the underside of the fingers

on his left hand, his left fingertips, as well as on his right palm and the underside of

the fingers of that hand. The next day, the defendant again told the detective that

there were people who were causing him trouble and that the detective should find

out “who they are.” He boasted again of his love for his wife. Later that day, the

defendant produced a ledger of accounts to police officers indicating which

customers came to the store to pay and the type and amount of each payment. He

pointed to a list of approximately seven or eight customers that he said had been in

the store and did business the previous day. He also recited a number of details

concerning their activities.

During the autopsy the medical examiner identified twenty-nine puncture wounds

in the left front chest area, sixteen more scattered in the area of the neck, a threeinch scratch across the front of the neck, two abrasions about the forehead and

eyebrow, the splitting of both lips on the right side, and bruises and abrasions on

the face. He also testified that the injuries had been sustained shortly before death.

The entire surface of the neck was bluish and contused, with evidence of internal

bruises in the area of the larynx and the hyoid bone at the base of the tongue. This

bruising indicated a blunt injury consistent with a squeezing of the neck by a hand

or hands, or by an arm. At least six wounds penetrated the heart itself. The medical

examiner considered these wounds to be consistent with punctures caused by an

icepick or a very thin screwdriver. He also observed that the victim was

approximately five months pregnant. He found no evidence of sexual trauma. In his

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opinion, death occurred between two and five hours prior to the discovery of the

body, that is, between 12:10 P.M. and 3:10 P.M.

An investigation in the neighborhood revealed that one neighbor had seen the

defendant’s motor vehicle and the victim’s motor vehicle parked on the street near

the house that morning. When she returned at about 11 A.M., she noticed that both

vehicles were gone. At about 11:45 A.M. she noticed a van stop for a moment at

the defendant’s house but she was only able to get a glimpse of the man who went

to the defendant’s door and then left. She saw the defendant on this day when she

went to the front door to receive the mail from her postman shortly after 1 P.M. She

saw the defendant approach his house while rolling up his right shirt sleeve. She

saw him entering his house wearing a striped shirt which was familiar to her. The

defendant took his mail, said nothing to the postman, looked at this neighbor, and

then continued to his door. The postman corroborated this neighbor’s testimony.

Amin Rabah Hamdi and David Mocarquer, his bookkeeper, contradicted the

defendant’s account of his activities on the day of the murder. Hamdi returned to

the store about noon and observed the defendant with a guest from New York and

with David Mocarquer. The defendant then left the store and returned about 12:30

P.M. Mocarquer recalled that the defendant was not in the store from 1 P.M. until

Mocarquer left at 1:45 P.M. Neither he nor Hamdi knew where the defendant had

gone. Finally, the defendant, Hamdi, and his chauffeur left about 2 P.M. and spent

the next two hours making collections on customer accounts. After his return,

Hamdi and the defendant remained at the store until the defendant left to pick up

his children at the day care center. Hamdi told the defendant that he wished to take

his sister (the victim) shopping. When he mentioned it a second time, the defendant

appeared nervous and suggested that they all go together later. When the defendant

was leaving to pick up the children, Hamdi asked why the victim had not picked up

the children and the defendant replied that she was sick.

Both Hamdi and Mocarquer testified that the defendant had changed shirts between

the morning and the afternoon of July 28. Early in the day, the defendant was

wearing a striped shirt but by late afternoon he was wearing a green shirt with small

flowers on it.

There was evidence that the defendant had threatened to kill his wife and had told

certain people about his intention. He persuaded a friend to purchase an icepick

which remained in the defendant’s van until the day before the murder. He

borrowed a leather punching tool the day before the murder. The defendant struck

the victim about two months before the murder and called her a whore. On another

occasion, the defendant hit his wife and declared, “I will kill you, I will drink your

blood, I will make your death the worst.” About one month before the murder, the

defendant tried to procure a gun in order to kill his wife. This was not his first such

attempt and he had not been taken seriously in the past. On this occasion, the

defendant demanded the gun as soon as possible and offered to pay $2,000 to have

his wife killed. He also offered his former driver $2,000 to kill the victim and

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repeated this request about ten times. He complained about his wife and indicated

that he was having trouble with her. He rejected a suggestion to get a divorce by

claiming that in his country there was no divorce. The defendant said that the people

of his country “have their own way of doing things.” The defendant said that his

wife should die and that he was going to kill her. He stated that his wife was “a

whore and she was pregnant and it wasn’t his.”

Salim, 399 Mass, at 228-232. As to the sufficiency of the evidence, the SJC reasoned:

The jury were warranted in concluding from this evidence that the defendant had

murdered his wife. While it is true that there were no eyewitnesses to the killing, it

is equally true that the Commonwealth need not prove that no one else could have

committed the murder... .We must look at the evidence as a whole and not examine

exhaustively each piece of evidence separately. Here, the defendant within a short

period of time before the murder acquired two instruments capable of bringing

about the kind of death that the victim suffered. The medical examiner said that the

puncture wounds were consistent with the use of these tools. There was testimony

placing the defendant at the scene during the time period when death occurred. Both

a neighbor and the postman saw him go to his house at a time consistent with

Hamdi's estimate of when the defendant left his store, which was only minutes from

his home. The scratches on the defendant’s neck, face, and collar bone were

consistent with injuries which may have been inflicted by the victim's last struggle.

The clamping of her neck with an arm or a hand was consistent with the inference

that the murderer seized the victim from behind and drove the weapon into her

chest. The jury were not required to believe that the defendant’s scratches were the

result of his mourning. The jury could infer that the defendant changed his shirt

after the murder to conceal the blood that might have been on it before he returned

to the store and the jury were warranted in believing that he lied to the police when

he said that he did not return home until evening, or did not change his clothes

during the day. Taken together, this mosaic of evidence consisting 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,

warranted the jury in returning their verdict, and hence there was no error in

denying the defendant’s motion for a required finding.

Id. at 232-233 (citation and punctuation omitted).

Salim, represented by counsel, filed a first motion for new trial in 1990 and a second motion

for new trial in 1991. See #17-7 at 7. According to Salim, those motions were based on affidavits

in which witnesses claimed that Salim’s brother-in-law bribed or attempted to bribe them to lie

about Salim’s involvement in his wife’s killing and were denied because the superior court ruled

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that the affidavits were untrustworthy. See #1 at 3.2 The first and second new trial motions were

denied by the superior court in 1994. See #17-7 at 7.

Salim filed a third motion for new trial, as well as a motion for appointment of counsel, in

2000. The third new trial motion and the motion for appointment of counsel were denied by the

superior court in 2000. A motion for reconsideration was denied by the superior court in 2001. See

#17-1 at 2, 17-7 at 7-8.

Thereafter, the superior court appointed counsel and ordered the prosecution to conduct

DNA testing on the victim’s fingernail scrapings, if paid for by Salim. The DNA results were

received by the superior court on February 16, 2005. See #17-1 at 2-4. A “Report of Laboratory

Examination” is included in Salim’s appendix. See #1-1 at 2-3. According to the report, multiple

scrapings were combined prior to DNA extraction and testing was discontinued after no male DNA

was detected. Id. See Memorandum of Decision and Order of the Supreme Judicial Court for

Suffolk County (hereinafter the “Single Justice”) in Commonwealth v. Salim, No. SJ-2019-0439,

at 2 (July 9,2020) (DNA results showed only female DNA).3

Salim, represented by counsel, filed a fourth motion for new trial in 2009. See #17-1 at 4.

According to Salim, that motion was based on affidavits from witnesses stating that Salim’s father

confessed that he killed Salim’s wife and that Salim’s brother-in-law also made statements

2 The parties have not submitted many of the underlying state court pleadings and decisions,

including the superior court’s decision on the first and second new trial motions. An affidavit of

Edwin Mercado Gonzales appears in Salim’s appendix. (#1-1 at 23-24.) An affidavit of Jacobo

Reyes appears in Salim’s appendix. (#1-1 at 31-32.)

3 A copy of the July 9, 2020 Memorandum of Decision and Order, which this court obtained from

the Clerk’s Office of the Single Justice, is attached to this Report and Recommendation as Exhibit

1. The copy that is included in Salim’s appendix, as scanned into the court’s electronic filing

system, is missing a page. See #1-1 at 77-83.

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implicating himself. See #1 at 4-5. But see Exhibit 1 at 2. Affidavits of Hamzeh Deeb Mustafa

Abu-Sabeha, Shafeek Salim Taha Hamdi, Halimah Amin Rabah Hamdi, Imam Amin Rabah

Hamdi, Husnia Hussin Ghannam, Carol Barry, William Westgate, Jr., Dr. Imam Tala Y. Eid,

Hamed Abusabiha, and Raouf Aly appear in Salim’s appendix. (#1-1 at 35-63.) The superior court

ruled that Salim’s father’s confessions were untrustworthy.4 As set forth in the July 9, 2020

Memorandum of Decision and Order of the Single Justice:

The motion judge concluded that the elderly father’s statements implicating himself

in the victim’s death were not credible, and that no evidence tied the father to the

crime other than these late-made statements.

Exhibit 1 at 2. The superior court denied the fourth new trial motion in 2011. See #17-1 at 4.

Following the denial of his fourth new trial motion, the Single Justice allowed Salim,

represented by counsel, to file a gatekeeper petition under Mass. Gen. Laws ch. 278, § 33E, late.5

See #17-8 at 1, electronic docket sheet in Commonwealth v. Salim, No. SJ-2012-0155. The Single

Justice denied the gatekeeper petition in 2012 and a motion for reconsideration in 2014. Id.6

Salim filed a fifth motion for new trial, as well as a motion for appointment of counsel, on

February 26, 2019. See #17-1 at 5. The fifth new trial motion and the motion for appointment of

counsel were denied by the superior court on September 3, 2019. Id.

4 The parties have not submitted a copy of the superior court’s decision on the fourth new trial

motion.

5 Pursuant to Mass. Gen. Laws ch. 278, § 33E, when a defendant is convicted of first degree

murder, he is entitled to plenary review on direct appeal to the SJC. After plenary review, he may

file new trial motions in the superior court. However, he is only entitled to review of the denial of

such motions if a Single Justice of the SJC allows a “gatekeeper” petition upon a determination

that the appeal presents an issue that is both “new” and “substantial,” should be resolved by the

full court of the SJC, or otherwise involves “a substantial risk of a miscarriage of justice.” Lee v.

Corsini, 111 F.3d 46, 54-55 (1st Cir. 2015) (citations omitted).

6 The parties have not submitted copies of the Single Justice’s decisions in 2012 and 2014.

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In its decision on the fifth new trial motion, see #1-1 at 74-76, the superior court identified

three challenges raised by Salim: (1) DNA testing contradicted the Commonwealth’s theory at trial

that scratches on his face were caused by his wife in a struggle; (2) the prosecutor improperly

invited the jury to conduct an experiment in closing argument; and, (3) the courtroom was

improperly closed during voir dire of prospective witnesses. Adopting the Commonwealth’s

arguments that Salim waived these challenges and failed to present any substantial issues as to the

firmly-settled, old conviction that had been subject to plenary review by the SJC, id. at 74-75, the

superior court observed:

A 2001 motion for DNA testing was allowed and results disclosed on February 16,

2005. No new trial motion based on the DNA results was filed until the motion

currently before the court, which was filed on February 26, 2019, fourteen years

after the DNA results were disclosed.

Id. at 74.

On July 9, 2020, the Single Justice denied Salim’s pro se gatekeeper petition. Exhibit 1 at

8. The Single Justice determined that Salim’s challenge based on the DNA evidence was not “new”

within the meaning of Mass. Gen. Laws ch. 278, § 33E. The Single Justice reasoned:

...[T]he defendant’s 2001 motion for DNA testing of the blood underneath the

victim’s fingernails (when the defendant was represented by appointed counsel)

ultimately was allowed, and testing was conducted, in 2004; the defendant was

provided the test results in 2005. The results revealed that the DNA was exclusively

female, and therefore could not have belonged to the defendant, as the prosecution

had argued vigorously at trial. The results of the DNA tests were disclosed to the

defendant on February 16, 2005. Appointed post-conviction counsel apparently

believed that the DNA likely was that of the victim herself, and did not pursue the

matter further. Rather, the defendant, again represented by counsel, filed his fourth

motion for a new trial on November 19, 2009, citing newly-discovered evidence.

After an evidentiary hearing, this motion ultimately was denied. The defendant’s

2012 gatekeeper petition challenging that denial subsequently was denied by the

single justice, as was his motion for reconsideration two years later....

A defendant challenging a conviction of murder in the first degree must present all

his or her claims of error at the earliest possible time, and failure to do so precludes

relief.... Because the DNA test results were available to the defendant four years

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before he filed his fourth motion for a new trial, and could have been raised in that

motion, by the time that he filed his fifth motion for a new trial, ten years after the

fourth motion, and fourteen years after receiving the DNA results, the issue was not

new within the meaning of G. L. c. 278, § 33E.

Exhibit 1 at 5-6 (citations and punctuation omitted).

The Single Justice also held that Salim’s challenge to the prosecutor’s closing argument

was not “new:”

It could have been raised at trial or during the defendant’s direct appeal. The

asserted impropriety in the prosecutor’s closing argument was part of the record

that was initially considered by the full court in conjunction with the defendant’s

direct appeal; indeed, the comments were contained in the trial transcript. Legal

issues surrounding the propriety of a prosecutor’s closing were well-developed at

that time, and any challenge could have been made at that point.

Exhibit 1 at 6-7. Inferentially, the Single Justice also held that Salim’s challenge to the courtroom

closures was not “new” or “substantial” within the meaning of § 33E:

Unlike questions of jury voir dire, the law concerning court room closure during

voir dire of witnesses also was well developed at the time of the defendant’s trial,

and, although the defendant did not object to the closures at trial, any claim on that

ground could have been made as part of his direct appeal.

Even had he raised the issue in a timely manner, however, the defendant could not

have shown prejudice from the closures. The courtroom was closed on the judge’s

order during testimony of nine potential witnesses to the defendant’s statements,

after counsel for the newspaper the Eagle Tribune informed the court that he could

not guarantee the voir dire testimony would not be printed by the press. The judge

ordered the courtroom closed to representatives of the media in order to avoid

having potential members of the venire from being exposed to the witnesses’

statements before trial, where it was possible that the defendant would move

successfully prior to trial to have the statements suppressed. For evident reasons,

trial counsel did not object to any of these closures.

Exhibit 1 at 7-8.

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B. Prior Proceedings in Federal Court.

1. The earlier habeas petitions.

The following history is largely drawn from District Judge Mazzone’s March 7, 1989

Memorandum and Order in Salim v. Amaral, No. 88-1602-MA - Exhibit 3.7

In 1987, Salim filed a petition for habeas corpus relief raising the same grounds that he had

raised on direct appeal plus additional grounds that he had not raised on direct appeal. On April

13, 1988, the petition was dismissed without prejudice for the failure to exhaust state remedies.

Exhibit 3 at 1.

On June 22, 1988, Salim, acting pro se, filed another petition for habeas corpus relief.

Exhibit 3 at 1-2. Respondent moved to dismiss, arguing that the petition included both exhausted

and unexhausted claims. Id. at 2. Although he believed that respondent’s argument had some merit,

Judge Mazzone did not accept it; instead, he proceeded to address Salim’s claims. Id. at 3-4. s

7 This discussion is based on the court’s review of records obtained by the court. Neither party

submitted Judge Mazzone’s Memorandum and Order, although respondent submitted a copy of

the electronic docket sheet in No. 88-1602-MA (#17-5) and a copy of amotion by Salim requesting

a photocopy of the habeas petition in 2014. (#17-6.)

The docket sheet in No. 88-1602-MA, is attached as Exhibit 2 hereto. District Judge

Mazzone’s Memorandum and Order is attached as Exhibit 3 hereto. Judge Mazzone’s Order of

Dismissal is attached as Exhibit 4 hereto.

8

Judge Mazzone reasoned:

...[A] dismissal would only delay further a review on the merits. Federal review

should be delayed only when the petitioner clearly failed to exhaust his state

remedies. In light of the salient issues presented here, namely, the competence of

counsel and the overall fairness of the entire case, addressing the claims now

without further examination of the potential procedural defaults will save

substantial time and effort.

Exhibit 3 at 3-4.

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Judge Mazzone found no basis to depart from the deference owed to state court fact

findings and determined that a rational jury could have found the essential elements of first degree

murder beyond a reasonable doubt, thus rejecting Salim’s challenge to the sufficiency of the

evidence. Exhibit 3 at 14-15.

Rejecting Salim’s challenge to the admission of prior recorded testimony, Judge Mazzone

reasoned that the superior court properly ruled that the two prosecution witnesses were

unavailable. Moreover, they had been subject to cross-examination previously. Exhibit 3 at 11-12.

In rejecting Salim’s challenges to the attack on the credibility of defense witnesses and to

the admission of prior bad act evidence, Judge Mazzone invoked the contemporaneous objection

rule and determined that Salim failed to show cause and prejudice. As to Salim’s challenge to the

admission of prior bad act evidence, Judge Mazzone added that federal habeas review typically

does not extend to state court rulings on the admissibility of evidence and, moreover, allowing the

jury to hear the evidence was not reversible, constitutional error. Exhibit 3 at 7-9, 10-11.

Rejecting Salim’s challenge to the appointment of an interpreter to the prosecution witness,

Judge Mazzone noted that Salim did not object at trial. He also found no abuse of discretion by

the superior court. Exhibit 3 at 12-13.

As to Salim’s claim of ineffective assistance based on an alleged conflict of interest, Judge

Mazzone found that no contingency fee agreement existed. Exhibit 3 at 9-10.

Salim’s final challenge combined a claim that the prosecutor’s closing argument urged

inferences not supported by the record and was unfairly prejudicial and that the verdict was against

the weight of the evidence. Exhibit 3 at 2, 15. Judge Mazzone found nothing in the prosecutor’s

conduct to support the former claim. Id. at 15. Judge Mazzone also rejected the latter claim, where

the record “clearly” showed “ample evidence....” Id. at 15-16.

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On March 9, 1989, Judge Mazzone summarily dismissed Salim’s petition. See Exhibit 4.

Salim filed a notice of appeal. His appeal was subsequently dismissed for want of prosecution. See

Exhibit 2 at 2.

2. The instant petition.

On August 13, 2020, Salim9 filed the instant petition, together with an appendix. (##1, 11.) He also moved to proceed in forma pauperis and for appointment of counsel. (#2, 3.) The

motion for appointment of counsel was denied without prejudice. (#5.)

In his petition, Salim raises three challenges to his first degree murder conviction, which

are substantially the same as the challenges raised in his fifth new trial motion and latest gatekeeper

petition. In Ground One, he argues: “DNA evidence disproves almost all the prosecution theory of

guilt.” (#1 at 5.) He adds, in part: “Petitioner had DNA results in 2005. His English comprehension

is poor and his appointed counsel saw no value in the DNA result.” Id.

Next, Salim argues that, in summation, the prosecutor invited the jury to conduct an

experiment; namely, to pretend that they were being stabbed from behind and to reach over their

shoulders to determine where their fingertips contacted the attacker. (#1 at 7.) In explaining why

Ground Two was not raised on direct appeal, he asserts: “It was not a live issue in 1981

because.. .DNA technology was unknown.” Id.

Finally, Salim argues that, during voir dire of prospective witnesses, the courtroom was

closed. (#1 at 8). In explaining why Ground Three was not raised on direct appeal, Salim asserts:

9 The court does not imply that Salim himself prepared the petition, or any other pleading. One of

his arguments in favor of the appointment of counsel is that he has had to seek help of other

prisoners. See #28 at 1-2. See also #26 (letter from non-party). “Salim” is used for ease of

reference. The court notes that the petition is neither dated nor signed. (#1 at 15.) See Rule 2(c)(5)

of the Rules Governing 2254 Cases in the United States District Courts (petition must be signed

under penalty of perjury by petitioner or authorized person).

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“My tongue is Arabic. When I emigrated to Lawrence, Massachusetts I learned Spanish, not

English. I relied on attorneys who neglected me.” Id. at 9.

As for the timeliness of his petition, Salim invokes the doctrine of “equitable tolling,”

noting his language impediment and mental health issues. Based on the DNA evidence, he asserts

“actual innocence.” (#1 at 13.)

Salim’s appendix includes psychiatric records from 1972 and 1978-1980. See #1-1 at 6-22.

For instance, the appendix includes a competency evaluation by an assistant medical director at

Bridgewater State Hospital dated November 6, 1978 in which the assistant medical director

suggested, inter alia, that Salim’s “current disorders of thinking would make it markedly difficult

for him to participate meaningfully in the courtroom proceedings or assist his attorney in

adequately preparing a defense” and recommended that he be not found competent to stand trial.10

The assistant medical director noted evidence that Salim “is mentally ill, best described as a

paranoid episode with elements of depression” and recommended further evaluation for the

presence of a neurological disorder. Id. at 14.

The appendix also includes a letter by a consulting psychologist dated October 11, 1979

wherein the consulting psychologist suggested, inter alia, that Salim was “a schizo-affective

schizophrenic with paranoid and excitable features, together with religious preoccupation,

paranoid suspiciousness, rapid mood variability, and possibly auditory hallucinations.” Id. at 20.11

10 The docket sheet in Commonwealth v. Salim, Essex Superior Court No. 7877CR97724, indicates

that the prosecution moved for an examination and Salim was ordered committed to Bridgewater

State Hospital under Mass. Gen. Laws ch. 123, § 15(b), at least from October 1978 to November

1979. (#17-7 at 1-4.) In August 1979, Salim was found competent to stand trial. Id. at 4. Before

his second trial, he was ordered released on bail. Id. at 5.

11 In the months after he filed the instant petition, Salim submitted two sets of exhibits. (##10, 15.)

Respondent’s counsel has represented that he has been unable to access these sets of exhibits

through the court’s electronic filing system. (#18 at 4-5 & n. 6.) The court has reviewed these sets

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On November 23, 2020, respondent moved to dismiss Salim’s petition. Respondent argues

that Salim’s petition is “second or successive” and he did not move for authorization in the United

States Court of Appeals for the First Circuit, thus depriving the district court ofjurisdiction. (##17

at 1, 18 at 6-9.) In the alternative, respondent argues that Salim’s petition is time-barred. (##17 at

1, 18 at 10-13.)

On March 8, 2021, Salim filed an opposition to respondent’s motion to dismiss. (#28.) In

addition to renewing his request for appointment of counsel, id. at 1,3, 8-9, 10, Salim addresses

respondent’s arguments. Salim argues that respondent has not established that his petition is

second or successive. Id. at 9-10.

Salim also argues that he has made a showing of actual innocence, thereby excusing the

late-filing. Id. at 3-9. In support of his claim of actual innocence, Salim relies primarily on the

DNA evidence; the prosecutor’s use of the blood under Salim’s wife’s fingernails and scratches

on his face in closing argument (as well as the prosecutor’s invitation to the jury to conduct the

experiment); the SJC’s use of the blood and scratches on direct appeal; and, the post-conviction

affidavits. Id. at 4, 6-7. Salim reiterates his claim that his language impediment and mental health

issues excuse the late-filing. Id. at 2, 5-6.

of exhibits. Factually, they do not alter its recommendation that respondent’s motion to dismiss be

allowed. Cf Rule 7(a), (c) of the Rules Governing Section 2254 Cases in the United States District

Courts (if petition is not dismissed, judge may direct parties to expand record and must give

opposing party against whom additional materials are offered opportunity to admit or deny their

correctness).

To the extent that Salim adds grounds for relief through these sets of exhibits, the court

rejects them. See, e.g., #15 at 29 (apparently arguing that District Attorney and trial judge had no

right to use his statements to police because of his mental health issues). The petition must set

forth the grounds for relief. See Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the

United States District Courts.

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On the same date that he filed his opposition, Salim moved to augment his appendix to

include, among other things, prison psychiatric records. He argues that the records support his

claim that he could not have filed his petition sooner and underscore his need for appointed

counsel. (#29 at 1.) The records are dated in 1995, 2001, 2010, and 2012-2018. (#29-1 at 2-25.)

They are discussed in more detail below.

In response to the motion to augment, respondent argues that the court lacks jurisdiction

over the unauthorized second or successive petition and that, in any event, the prison psychiatric

records do not establish actual innocence or warrant equitable tolling. (#33 at 1-3 & n. 2.)

II. Discussion.

A. The court denies Salim’s renewed request for appointment of counsel.

There is no constitutional right to counsel in a habeas proceeding. Bucci v. United States,

662 F.3d 18, 34 (1st Cir. 2011) (citing Pennsylvania v. Finley, 481 U.S. 551,555 (1987)). See Ellis

v. United States, 313 F.3d 636, 652 (1st Cir. 2002). 18 U.S.C. § 3006A(a)(2)(B) allows the court

to appoint counsel in a habeas proceeding upon a determination that the “interests of justice so

require.” Id. See 28 U.S.C. § 2254(h). In making this determination, the court views the totality of

the circumstances, including the merits of the petition, the complexity of the factual and legal

issues, and the petitioner’s ability to represent himself. See United States v. Mala, 7 F.3d 1058,

1063-1064 (1st Cir. 2003). See also Civitarese v. MarchiUi, No. 16-CV-40129-TSH, 2017 WL

2957932, at *1 (D. Mass. July 11, 2017). Habeas proceedings in which counsel should be

appointed are “few and far between.” Ellis, 313 F.3d at 653.12

12 If an evidentiary hearing is warranted, the court must appoint counsel. See Rule 8(c) of the Rules

Governing Section 2254 Cases in the United States District Courts. An evidentiary hearing is not

warranted here.

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The court declines to exercise its discretion to appoint counsel. See #28 (renewed requests

for appointment of counsel). The dispositive issues are not complex. Salim’s petition is an

unauthorized second or successive petition and is time-barred.

B. The court allows Salim’s motion to augment his appendix.

The court allows Salim’s motion to augment his appendix (#29) and has considered the

prison psychiatric records (#29-1), among other materials. As discussed below, the prison

psychiatric records do not alter the court’s recommendation that respondent’s motion to dismiss

be allowed.

C. The court recommends that respondent’s motion to dismiss be allowed.

1. Relevant law.

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C. § 2244(b) imposes three requirements on a so-called “second or successive” petition under

28 U.S.C. § 2254. Gonzalez v. Crosby, 545 U.S. 524, 529-530 (2005). First, a claim that has already

been adjudicated on the merits in an earlier petition must be dismissed. Id. (citing § 2244(b)(1)).

Second, a claim that has not already been adjudicated on the merits in an earlier petition must be

dismissed unless it relies on a new, retroactive rule of constitutional law or on new facts showing

a high probability of actual innocence. Id. at 530 (citing § 2244(b)(2)).13 Third, before the district

i3 Specifically, § 2244(b)(2) provides:

(2) A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed unless

(A) the applicant shows that the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously

through the exercise of due diligence; and

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court accepts a second or successive petition for filing, the court of appeals must determine that it

raises claims not previously raised that are sufficient to meet § 2244(b)(2)’s new-rule or actualinnocence thresholds. Id. (citing § 2244(b)(3)). Stated succinctly, under AEDPA, “a state prisoner

always gets one chance to bring a federal habeas challenge to his conviction.... But after that, the

road gets rockier.” Banister v. Davis, — U.S. —, 140 S.Ct. 1698, 1704 (2020) (citation omitted).

28 U.S.C. § 2244(b)’s three requirements for a second or successive habeas petition are

triggered even if petitioner filed an earlier petition before AEDPA’s effective date of April 24,

1996. Libby v. Magmtsson, 177 F.3d 43, 46-47 (1st Cir. 1999) (rejecting ex post facto argument

and applying Pratt v. United States, 129 F.3d 54 (1st Cir. 1997)).

While “second or successive” is a term of art that does not refer to each and every petition

filed later-in-time to an earlier petition, see Banister, 140 S.Ct. at 1705, generally, 28 U.S.C. §

2244(b)’s three requirements are triggered when an earlier petition was adjudicated by the district

court on the merits,14 where “on the merits” includes a determination that a claim was procedurally

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as

a whole, would be sufficient to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would have found the applicant

guilty of the underlying offense.

Id.

14 Precedent carves out exceptions whereby certain later-in-time petitions will not be deemed

“second or successive” petitions and thus will not trigger § 2244(b)’s three requirements. See

Banister, 140 S.Ct. at 1705 & n. 3 (collecting examples and authorities). Suffice it to say that while

Salim’s petition in 1987 that was dismissed without prejudice for the failure to exhaust remedies

would satisfy an exception, see Slack v. McDaniel, 529 U.S. 473, 486-487 (2000), his 1988

petition, adjudicated on the merits, would not. See Burton v. Stewart, 549 U.S. 147, 154 (2007)

(per curiam) (where petition raises unexhausted and exhausted claims, petitioner “may proceed

with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims

to rigorous procedural obstacles”) (quotingRose v. Lundy, 455 U.S. 509, 520-521 (1982) (plurality

opinion).

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defaulted in state court and petitioner has not shown cause or prejudice. See Henderson v. Lampert,

396 F.3d 1049, 1053 (9th Cir. 2005); Graham v. Costello, 299 F.3d 129, 133 (2d Cir. 2002);

Harvey v. Horan, 278 F.3d 370, 379-380 (4th Cir. 2000), overruled on other grounds, Skinner v.

Switzer, 562 U.S. 521 (2011); In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); Carter v. United

States, 150 F.3d 202, 205-206 (2d Cir. 1998) (per curiam). See also Wiltse v. Winn, 537 F. Supp.

2d 266, 268 (D. Mass. 2008). Accord Murray v. Greiner, 394 F.3d 78, 80-81 (2d Cir. 2005). If an

earlier petition was adjudicated by the district court on the merits, a later-in-time petition will be

deemed “second or successive” and trigger § 2244(b)’s three requirements even if it raises claims

that were not, in fact, raised previously. See Gautier v. Wall, 620 F.3d 58, 60 (1st Cir. 2010). Cf.

Bucci v. United States, 809 F.3d 23, 26-27 (1st Cir. 2015); United States v. Barrett, 178 F.3d 34,

42-45 (1st Cir. 1999).

28 U.S.C. § 2244(b)’s third and final requirement - that the petitioner seek and obtain

authorization from the court of appeals - is jurisdictional. Bucci, 809 F.3d at 26. See Butcher v.

Mici, No. 19-CV-12580-PBS, 2020 WL 8679638, at *2 (D. Mass. Aug. 3,2020). When confronted

with an unauthorized second or successive petition, the district court has two choices: dismiss it

or transfer it. Bucci, 809 F.3d at 26; Dutcher, 2020 WL 8679638, at *2. Thus, 1st Cir. L. R. 22.1(e)

provides that if a second or successive petition is filed without authorization, the district court “will

transfer the petition to the court of appeals pursuant to 28 U.S.C. § 1631 or dismiss the petition.”

Id. See also Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts.

28 U.S.C. § 1631, in turn, provides that “[wjhenever a civil action is filed in a court...and that

courts finds that there is want ofjurisdiction, the court shall, if it is in the interest ofjustice, transfer

such action or appeal to any other such court....in which the action or appeal could have been

brought at the time it was filed or noticed....” Id.

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The district court may dismiss an unauthorized second or successive petition if transfer

would be futile. Dismissal, rather than transfer, is appropriate if the claims in the second or

successive petition must, in any event, be dismissed under 28 U.S.C. § 2244(b)(1) because they

were already adjudicated on the merits in an earlier petition or under 28 U.S.C. § 2244(b)(2)

because they do not satisfy the new-rule or actual-innocence thresholds. See, e.g., Ericson v.

Mitchell, No. 20-CV-l 1688-RGS, 2020 WL 6785947, at *3-4 (D. Mass. Nov. 2, 2020), report and

recommendation adopted sub nom. Ericson v. Massachusetts, No. 20-CV-l 1688-RGS, 2020 WL

6781962 (D. Mass. Nov. 18, 2020); Rankins v. O’Brien, No. 15-CR-12890-RGS, 2016 WL

4487897, at *5 (D. Mass. Aug. 11, 2016), report and recommendation adopted sub nom. Rankins

v. Ryan, No. 15-CV-12890-RGS, 2016 WL 4487833, at *1 (D. Mass. Aug. 24, 2016). Cf, e.g.,

Jahagirdar v. United States, No. 07-CV-10923-MLW, 2010 WL 2595564, at *3 (D. Mass. June

24, 2010) (under 28 U.S.C. § 2255(h)).

Dismissal, rather than transfer, is appropriate if the unauthorized second or successive

petition is time-barred under 28 U.S.C. § 2244(d)(1). See, e.g., James v. Goguen, No. 18-CV11960-TSH, 2019 WL 6130669, at *11 (D. Mass. Sept. 30, 2019), report and recommendation

adopted, No. 18-CV-l 1960-TSH, 2019 WL 6130672, at *1 (D. Mass. Oct. 24, 2019), certificate

of appealability denied, 424 F. Supp. 3d 154, 158 (D. Mass. 2019), certificate of appealability

denied sub nom. James v. Divris, No. 19-2215 (1st Cir. June 8, 2021) (unreported).

As amended, 28 U.S.C. § 2244(d)(1) imposes a one-year period of limitation on habeas

petitions which “shall run from the latest of

(A) the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court, if the right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

Id. A statutory tolling provision, 28 U.S.C. § 2244(d)(2), provides that “[t]he time during which

a properly filed application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of limitation under

this subsection.” Id. This provision temporarily stops the one-year period of limitation; it does not

revive a one-year period of limitation that has already expired. Cordle v. Guarino, 428 F.3d 46, 48

n. 4 (1st Cir. 2005). See Delaney v. Matesanz, 264 F.3d 7, 11 (1st Cir. 2001).

AEDPA’s one-year period of limitation can be subject to equitable tolling. Holland v.

Florida, 560 U.S. 631, 645 (2010). Yet, for that doctrine to apply, the petitioner must show that

he has been pursuing his rights diligently and that some extraordinary circumstance prevented

timely filing. Id. at 649. See Blue v. Medeiros, 913 F.3d 1, 8-9 (1st Cir. 2019). See also Delaney,

264 F.3d at 14. Equitable tolling is applied infrequently and at the court’s discretion. Blue, 913

F.3d at 9.

Ignorance of the law, even for incarcerated pro se petitioners, does not warrant equitable

tolling. Lattimore v. Dubois, 311 F.3d 46, 55 (1 st Cir. 2002). In contrast, petitioner’s mental illness

may warrant equitable tolling. Riva v. Ficco, 615 F.3d 35, 39-40 (1st Cir. 2010). Petitioner must

show that, “during the relevant time frame, he suffered from a mental illness or impairment that

so severely impaired his ability either effectively to pursue legal relief to his own behoof or, if

represented, effectively to assist and communicate with counsel.” Id. See Riva v. Ficco, 803 F.3d

77, 80-84 (1st Cir. 2015).

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There is some authority to suggest that a language deficiency may warrant equitable tolling.

Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008); Mendoza v. Carey, 449 F.3d 1065, 1069-1070

(9th Cir. 2006). See United States v. Aguilar-Alvarez, No. 08-CV-10123-DJC, 2015 WL 8082369,

at *6 & n. 1 (D. Mass. Dec. 7, 2015) (collecting cases). But see Yangv. Archuleta, 525 F.3d 925,

929-930 (10th Cir. 2008). Yet “the diligence requirement of equitable tolling imposes on

[petitioner] a substantial obligation to make all reasonable efforts to obtain assistance to mitigate

his language deficiency.” Diaz, 515 F.3d at 154.

A credible showing of actual innocence may serve as a “gateway” to federal habeas review

despite the expiration of a one-year period of limitation. McQuiggin v. Perkins, 569 U.S. 383, 386,

392 (2013). See Riva, 803 F.3d at 84. “Actual innocence” means “factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).

To make a credible gateway showing, petitioner must satisfy the standard of Schlup v. Delo,

513 U.S. 298 (1995). McQuiggin, 569 U.S. at 386. See Riva, 803 F.3d at 85. He must show that it

is “more likely than not, in light of the new evidence, no reasonable juror would find him guilty

beyond a reasonable doubt - or, to remove the double negative, that more likely than not any

reasonable juror would have reasonable doubt.” House v. Bell, 547 U.S. 518, 538 (2006). See

Schlup, 513 U.S. at 327. See also McQuiggin, 569 U.S. at 386; Riva, 803 F.3d at 84.15

15 Schlup's “more likely than not” standard is lower than § 2244(b)(2)(B)(ii),s “clear and

convincing” standard for second or successive petitions. House, 547 U.S. at 539. See Schlup, 513

U.S. at 327. The “clear and convincing” standard does not govern the gateway analysis. Id.

Conversely, the “more likely than not” standard does not govern the second or successive analysis.

Gage v. Chappell, 793 F.3d 1159, 1169 (9th Cir. 2015); Jordan v. Secretary, Dept, ofCorrections,

485 F.3d 1351, 1359 (11th Cir. 2007).

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A credible gateway showing requires “new reliable evidence - whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not

presented at trial.” House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324). Timing of the petition

is a factor bearing on the reliability of new evidence. McQuiggin, 569 U.S. at 386-387, 399. See

Schlup, 513 U.S. at 332.

From the total record, the court makes a “probabilistic determination about what

reasonable, properly instructed jurors would do.” House, 547 U.S. at 538 (quoting Schlup, 513

U.S. at 329). The Schlup standard does not require absolute certainty about petitioner’s guilt or

innocence; however, it is “demanding” and satisfied only in the “extraordinary” case. Id. (quoting

Schlup, 513 U.S. at 329). “The gateway should open only when a petition presents ‘evidence of

innocence 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 nonharmless constitutional error.” McQuiggin, 569 U.S.

at 401 (quoting Schlup, 513 U.S. at 316).

2. Application.

Salim’s petition is successive. In 1988, he filed a petition for writ of habeas corpus

challenging his first degree murder conviction. In 1989, Judge Mazzone adjudicated that petition

on the merits. See Exhibits 2-4. Salim does not claim to have sought and obtained authorization

from the United States Court of Appeals for the First Circuit Accordingly, the court must choose

between transfer and dismissal. The court recommends dismissal. Transfer would be futile.

First, the Court of Appeals would not authorize review of Ground Two (prosecutor’s

closing argument) or Ground Three (courtroom closures) under 28 U.S.C. § 2244(b)(2). Salim

does not identify a new, retroactive constitutional rule. Both grounds rely on the record of Salim’s

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second trial, not fresh evidence. See Exhibit 1 at 7. Anyway, neither ground has anything to do

with guilt or innocence.

While Ground One (DNA) relies on fresher evidence, transfer would also be futile. Salim’s

petition is time-barred. His conviction became final decades ago. AEDPA was enacted decades

ago. He received the DNA results decades ago. See #1 at 5.16

Salim recognizes that his petition is time-barred and asserts actual innocence. (##1 at 13,

28 at 3-9.) But, he has not made a credible gateway showing. As a threshold matter, with regard

to Salim’s reliance on the post-conviction affidavits, see, e.g., #28 at 4, 6, the court is constrained

by 28 U.S.C. § 2254(e), which provides that the state court’s determination of a factual issue must

be presumed correct unless petitioner rebuts that presumption by clear and convincing evidence.

16 For purposes of § 2244(d)(1)(A), a conviction becomes final when the time for pursuing the next

level of direct review expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). If a conviction

became final before the enactment of AEDPA, a one-year grace period applies, with a start date of

April 24, 1996. Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999). As noted, Salim does not identify

a new, retroactive constitutional rule. So, § 2244(d)(1)(C) does not provide alternate start date.

Salim also does identify an impediment by state action. So, § 2244(d)(1)(B) does not provide an

alternate start date. Using “the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence,” § 2244(d)(1)(D), id., the oneyear period of limitation expired on or about February 16, 2006, the superior court having received

the DNA results on February 16, 2005. See #17-1 at 4.

The statutory tolling provision is not implicated here because Salim did not file a new trial

motion in state court before the expiration of any conceivable one-year period of limitation, and §

2244(d)(2) does not revive expired periods of limitation. Cordle, 428 F.3d at 48 n. 4; Delaney, 264

F.3d at 11. See ##17-1 at 1, 17-7 at 7 (reflecting denial of first and second new trial motions in

1994 and no docket activity between 1995 and 2000, when third new trial motion was filed and

denied); #17-1 at 2 (reflecting no docket activity between 2005, when DNA results were received,

and 2009, when fourth new trial motion was filed). Most significantly, Salim did not file his

uncounseled fifth new trial motion - which raised the DNA issue - for nearly 5 years after his

counseled fourth new trial motion - which did not raise the DNA issue - had completely run its

course through the state courts. See #17-8 at 2 (motion for reconsideration denied on April 11,

2014), #17-1 at 5 (fifth new trial motion filed February 26, 2019).

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The DNA results do not constitute new reliable evidence of actual innocence. That the

blood underneath the victim’s fingernails was female and thus could not have belonged to him

does not exonerate Salim. E.g., Elliott v. Smith, No. 18-CV-92-REW, 2018 WL 3431929, at *5 (E.

D. Ky. July 15, 2018) (rejecting gateway actual innocence claim based on DNA tests showing that

blood was victim’s, results which were “at most, neutral relative to the identity of the killer” and

“hardly suggested] that ‘no juror, acting reasonably, would have voted to find [Elliot] guilty

beyond a reasonable doubt”’) (citations to McQuiggin and Schlup omitted), certificate of

appealability denied sub nom. Elliott v. Mazza, No. 18-6106, 2019 WL 1810920 (6th Cir. Jan. 8,

2019) (unreported). Contrast House, 547 U.S. at 540 (DNA evidence showed that blood and semen

samples collected from victim came from her husband, not petitioner).17

The DNA testing was conducted almost three decades after the crime. During the fourth

new trial motion proceedings, when Salim was represented by counsel, the DNA issue was not

raised. For almost 5 years after those proceedings ended, the DNA issue still was not raised. While

17 As further evidence of actual innocence, Salim draws the court’s attention to a police report of

an interview with a school social worker, which he seems to suggest corroborates the trial

testimony of a school teacher and that the report and testimony together establish that he did not

have scratches on his face, thus “contradicting the police version that Salim had not inflicted the

scratches as a form of lamentation.” (#28 at 6.) See #1-1 at 1 (table of contents), 72 (page of trial

transcript), 73 (police report). Neither the page of trial transcript nor the police report establishes

that Salim did not have scratches on his face. See #1-1 at 72 (“Q And Mr. Salim appeared cheerful

and composed and relaxed? AI didn’t notice anything unusual, no”), 73 (“Pat stated that when she

called Mr. Salim answered the phone and he said he thought Mrs Salim was going to pick the

children up but he would be right down. He arrived and went inside and talked to the children and

appeared to be in a very good mood”).

Salim also asserts that a tuft of hair found on the victim’s wrist was tested and determined

not to belong to either of them. (#28 at 4, 6.) The page of the appendix to which Salim draws the

court’s attention is not a page from a transcript. It is a page of notes of unknown origin and

accuracy. (#1-1 at 71.)

Salim’s bald assertions of bias and other improprieties, see #26 at 6, do not merit discussion

as they do not constitute new reliable evidence.

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not determinative, this delay is relevant. McQuiggin, 569 U.S. at 386-387, 399. See Schlup, 569

U.S. at 332. For all of the reasons above, Salim’s showing falls far short of Schlup’s demanding

standard.18

Salim also asserts that his language deficiency and mental health issues warrant equitable

tolling. (##1 at 13, 28 at 2.) The court disagrees. Setting aside whether Salim has shown that he

diligently pursued his rights (he has not), the court is not persuaded that he has any language

deficiency, let alone one that prevents him from understanding his rights and pursuing them.19

Regardless, he has failed to explain the steps that he took to mitigate his alleged language

deficiency, either in the roughly 4 years between the receipt of the DNA results and the filing of

the fourth new trial motion not raising the DNA issue or in the roughly 5 years between the end of

the proceedings on the fourth new trial motion and the filing of the fifth new trial motion raising

the DNA issue. See Diaz, 515 F.3d at 154.

18 For the same reasons, the Court of Appeals would not authorize review of Ground One (DNA)

under § 2244(b)(B)(ii)’s “clear and convincing” standard, which is higher than Schlup’s “more

likely than not” standard.

19 The SJC recounted in its 1987 decision evidence that Salim “became reasonably fluent in

Spanish as well as in English....” Salim, 399 Mass, at 229. In his appendix, Salim includes a 1972

newspaper article that quotes him in English. (# 1 -1 at 85.) With his motion to augment, he includes

recent prison psychiatric records that quote him in English. See, e.g.,#29-1 at 12 (from 2018: “Mr.

Salim reported that his mother was elderly so her death was ‘common sense’.... Mr. Salim stated

that ‘it is the way of the world’....”), 15 (from 2016: “This writer then met with client who reports

that he is doing ‘totally fine’ and has no emergent MH concerns stating ‘I’m not going to hurt

myself or anyone else’...”), at 20 (from 2014: “Inmate reported that he was just sharing recent

events with the nurse ‘because she asked’, and stated ‘everyone gets sad once in a while.’”), 25

(from 2014: “Client reports that he ‘kind of expected it’ after self-report of being incarcerated for

34 years- ‘I’m in prison, what do I expect?’..'.”). One such record describes his speech as “clear

and coherent but with a slight accent.” (#29-1 at 12.) Another psychiatric record - from 1972 states: “...The patient speaks good English....” (#1-1 at 22.) Among the two sets of exhibits not

viewed by respondent’s counsel, Salim includes letters written by prior counsel, in English, and

apparently sent to him. See, e.g., ##15 at 6 (in 2003), 10 at 17 (in 2005).

25

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 26 of 54

Nor do the psychiatric records and other documents submitted by Salim show that, “during

the relevant time frame, he suffered from a mental illness or impairment that so severely impaired

his ability either effectively to pursue legal relief to his own behoof or, if represented, effectively

to assist and communicate with counsel.” Riva, 615 F.3d at 40.20 Certainly, that he was committed

to Bridgewater State Hospital prior to his first trial; that the assistant medical director

recommended that he not be found competent to stand trial; and, that a consulting psychologist

suggested that he was schizophrenic and paranoid suggests that Salim has a history of mental

illness. See #1-1 at 14, 20.21 However, Salim ultimately was found competent to stand trial; stood

trial; and, was ordered release on bail prior to his second trial. See #17-7 at 1-5. Moreover, the

more recent psychiatric records and other documents do not establish that Salim could not assist

or communicate with counsel between 2005 when the DNA results were received and 2009 when

the fourth new trial motion was filed or that he could not pursue legal relief on his own behalf

between 2014 when the motion for reconsideration was denied and 2019 when the fifth new trial

motion was filed.22

20 The court does not agree with respondent, see #33 at 2, that the appropriate time frame is the

grace period, 1996-1997, which expired before the new factual predicate for Ground One (DNA)

was even discovered. A more appropriate time frame would be 2005-2006, the one year from the

receipt of the DNA results within which Salim had to file a new trial motion in state court for

purposes of statutory tolling. 28 U.S.C. §§ 2244(d)(1)(D), 2244(d)(2). See Riva, 615 F.3d at 41. In

any event, the court does not need to decide on the most appropriate time frame. The psychiatric

records do not show a sufficiently debilitating mental illness or impairment at any time.

21 Salim appears to also emphasize records of a head injury and intermittent seizures since

childhood, perhaps the result of physical abuse by his father. See #29-1 at 1,11, 14. See also #1-1

at 21-22. On this record, the court cannot find that he was unable to effectively assist or

communicate with counsel or pursue legal relief on his own because of this or some other physical

issue.

22 Some of the records suggest that Salim assisted and communicated with counsel. See #29-1 at 7

(2010; indicating that Salim was seeking list of mental health medications from 1978-present “for

legal purposes”), 25 (2014; “future-oriented going to the library/talking on the phone with

26

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 27 of 54

III. Recommendations.

For the reasons set forth above, Salim’s renewed request for appointment of counsel (#28)

is denied. Salim’s motion to augment (#29) is allowed. The court recommends that respondent’s

motion to dismiss (#17) be allowed. Because “reasonable jurists” could not debate whether Salim’s

petition was timely filed, see Slack, 529 U.S. at 484, the court further recommends that no

certificate of appealability be issued.

IV. Review bv District Judge.

The parties are hereby advised that any party who objects to this Report and

Recommendation must file a specific written objection thereto with the Clerk of this Court within

fourteen days of service of this Report and Recommendation. The written objections must

specifically identify the portion of the Report and Recommendation to which objection is made

and the basis for such objections. The parties are further advised that the United States Court of

Appeals for the First Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P.

72(b) shall preclude further appellate review. See Keating v. Sec ’y ofHealth & Human Servs., 848

F.2d 271 (1st Cir. 1988); U.S. v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v.

Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); U.S. v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982);

Park Manor Mart, Inc. v. Ford Motor Co., 616F.2d 603 (1st Cir. 1980).

August 16, 2021

/s/ M. PAGE KELLEY

M. Page Kelley

Chief United States Magistrate Judge

lawyer/talking on the phone with family supports”). Many suggest that he denied or minimized

mental health concerns. E.g., #29-1 at 6 (2003), 20 (2004), 16 (2014), 15 (2016). In 2017, when

questioned about a report that he said he had “given up,” Salim denied making the statement,

reported that he had been and would continue taking his medications; and, when asked about selfharm, laughed and said: “I’m not that sick.” (#29-1 at 13.)

27

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 28 of 54

i1

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

NO: SJ-2019-0439

ESSEX, ss.

SUPERIOR COURT DEPARTMENT

ESSEX SUPERIOR COURT

Docket No. 7877CR97724

COMMONWEALTH

vs.

ABDER SALIM

MEMORANDUM OF DECISION AND ORDER

The matter came before the court, Lenk, J., on the pro-se

defendant's petition for relief pursuant to G. L. c. 278, § 33E,

from the denial of his fifth motion for a new trial.

The

Commonwealth has submitted a brief letter stating that it

opposes the petition, but will not be filing anything further

unless ordered to do so by the court.

1,

Background,

In June, 1981, after his first, nineteen-

day trial ended in a mistrial because the jury were unable to

reach a verdict, the defendant was convicted at a second trial

of murder in the first degree in the stabbing death of his wife.

The conviction was affirmed by the full court in 1987.

See

1

EXHIBIT 1

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i

I

Commonwealth v. Salim, 399 Mass. 227, 239 (1987).

by new appellate counsel

Represented

the defendant moved for a new trial in

1990 and 1991; both motions were denied.

again filed a motion for a new trial,

In 2000, the defendant

Following the denial of

the-defendant1s third motion for a new trial in 2001, his motion

for post-conviction deoxyribonucleic acid (DNA) testing was

allowed later that year.

Testing took place in 2004, and the

test results eventually were made available to the defendant in

2005 .

The defendant than filed a fourth motion for a new trial

in 2009, without reference to the new DNA results; that motion,

arguing newly discovered evidence in statements by the

defendant's father, was denied after an evidentiary hearing, as

was a gatekeeper petition challenging the denial (in April,

2012)

and a motion for reconsideration (in April, 2014).

The

motion judge concluded that the elderly father's statements

implicating himself in the victim's death were not credible, and

that no evidence tied the father to the crime other than these

late-made statements.

In 2019, the defendant ultimately filed his fifth motion

for a new trial, this time, inter alia, on the basis of the DNA

results, which showed only female, and no male, DNA under the

victim's fingernails.

(The Commonwealth's theory at trial had

been that the scratches on the defendant’s face and neck when

police arrived at the scene had been made by the victim

2

EXHIBIT 1

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i

scratching him as she struggled for her life,

The defense

theory was one of mistaken identification; the defendant argued

that the scratches on his face were self-inflicted in

lamentation when he found his wife's body, and his brother-inlaw, whom he strongly resembled, was the culprit).

The motion

judge ordered the Commonwealth to submit a brief in opposition

to the defendant's fifth motion for a new trial, and thereafter

denied the motion in a two-page decision setting forth the

history of the defendant's prior post-conviction motions, and

then citing the Commonwealth's brief as-explaining the reasons

for the denial.

2.

Discussion.

As he did in his fifth motion for a new

trial, in his gatekeeper petition, the defendant presents three

issues which he contends require a new trial.

First, he argues

that the 2004 DNA testing of blood under the victim's

fingernails that showed only female DNA excluded him as the

source of the. blood under the fingernails, and thus disproves

the'Commonwealth's theory at trial that the victim had scratched

him during the final confrontation before she was killed.

Second, the defendant argues that the prosecutor impermissibly

asked the jury to conduct an experiment, in the jury room when he

urged them to see if they could scratch their faces and necks in

the way that the defendant claimed that he had scratched his own

Third, the defendant claims that nine instances of courtroom

3

EXHIBIT 1

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 31 of 54

/

closure to the press during voir dire of certain witnesses

prejudiced him.

When, as here, a defendant has been convicted of murder in

the first degree, the full court has affirmed the conviction

after consideration of the defendant's direct appeal, and a

subsequent motion for a new trial has been denied, before any

further appeals will be heard by the full court, the defendant

first must file a gatekeeper petition pursuant to G. L. c. 278

§ 33E, in the county court.

The single, justice, acting as

"gatekeeper," then must decide whether the appeal presents a new

and substantial question that should be reviewed by the full

court.

Id.

Only if the single justice' determines that the

issue is both new and substantial will the matter be referred to

The decision of the justice in

the full court for disposition.

this regard is final and unreviewable.

See Commonwealth v.

Nassar, 454 Mass. 1008, 1009 (2009), quoting Commonwealth v.

Herbert, 445 Mass. 1018, 1018 (2005).

An issue is not new within the meaning of the statute when

it'could have been raised by the defendant at trial or on direct

review.

397 Mass. 705, 707 (1986);

Commonwealth v. Ambers

Commonwealth v. Johnson, 461 Mass. 1, 2 (2011).

An issue is

considered new if evidence that was not previously available

comes to light after the trial, or if the law was not

sufficiently developed at the time of trial.

Commonwealth v.

4

EXHIBIT 1

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 32 of 54

p

Gunter, 459 Mass. 480, 488 (2011).

Even if the issue could have

been raised at the time of trial, it still may be considered new

if the law surrounding it was not fully developed at the time of

See id.

trial or at the time of the defendant's direct appeal.

This requirement serves justice by ensuring that there is

finality to criminal judgments, and also preserves judicial

resources, while at the same time allowing meritorious

subsequent appeals to proceed.

See Commonwealth v. Valliere,

437 Mass. 366, 371 (2002).

a.

testing.

Whether issues are "new" and "substantial".

I.

DNA

As stated, the defendant's 2001 motion for DNA testing

of the blood underneath the victim's fingernails (when the

defendant was represented by appointed counsel) ultimately was

allowed, and testing was conducted, in 2004/ the defendant was

provided the test results in 2005.

The results revealed that

the.DNA was exclusively female, and therefore could not have

belonged to the defendant, as the prosecution had argued

vigorously at trial.

The results of the DNA tests were

disclosed to the defendant on February 16, 2005.

Appointed

post-conviction counsel apparently believed that the DNA likely

was that of the victim herself, and did not pursue the matter

further.

Rather, the defendant, again represented by counsel,

filed his fourth motion for a new trial on November 19

citing newly-discovered evidence.

2009,

After an evidentiary hearing,

5

EXHIBIT 1

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 33 of 54

i

this motion ultimately was denied,

The defendant's 2012

gatekeeper petition challenging that denial subsequently was

denied by the single justice

as was his motion for

See Commonwealth vs. Abder

reconsideration two years later.

Salem, Docket No. SJ-2012-0155.

A defendant challenging a conviction of murder in the first

degree must "present all his [or her] claims of error at the

earliest possible time, and failure to do so precludes relief."

Commonwealth v. Ambers, 397 Mass. 705, 707 (1986), quoting

Commonwealth v. Pisa, 384 Mass. 263, 365-366 (1981).

c. 278, § 33E.

See G. L.

Because the DNA test results were available to

the defendant four years before he filed his fourth motion for a

new trial, and could have been raised in that motion, by the

time that he filed his fifth motion for a new trial, ten years

after the fourth motion, and fourteen years after receiving the

DNA results, the issue was not new within the meaning of G. L.

c. 278, § 33E.

II.

Closing argument.

The defendant's argument concerning

improprieties in the prosecutor's closing, in which the

prosecutor urged the jury to experiment for themselves to see if

they would be able to scratch their faces in mourning as the

defendant asserted that he had, also is not new within the

meaning of the statute.

It could have been raised at trial or

during the defendant's direct appeal.

The asserted impropriety

6

EXHIBIT 1

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 34 of 54

f

i

in the prosecutor's closing argument was part of the record that

was initially considered by the full court in conjunction with

the defendant's direct appeal; indeed, the comments were

contained in the trial transcript.

Legal issues surrounding the

propriety of a prosecutor's closing were well-developed at that

time, and any challenge could have been made at that point.

III.

Courtroom closures.

Unlike questions of jury voir

dire, the law concerning court room closure during voir dire of

witnesses also was well developed at the time of the defendant's

trial, and, although the defendant did not object to the

closures at trial, any claim on that ground could have been made

as part of his direct appeal.

Even had he raised the issue in a timely manner, however

the defendant could not have shown prejudice from the closures.

The courtroom was closed on the judge's order during testimony

of nine potential witnesses to the defendant's statements, after

counsel for the newspaper the Eagle Tribune informed the court

that he would not guarantee the voir dire testimony would not be

printed by the press.

The judge ordered the courtroom closed to

representatives of the media in order to avoid having potential

members of the venire from being exposed to the witnesses

statements before trial, where it was possible that the

defendant would move successfully prior' to trial to have the

7

EXHIBIT 1

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 35 of 54

>

;

statements suppressed.

For evident reasons, trial counsel did

not object to any of these closures.

Upon consideration, because the defendant has not raised

any issue that is new and substantial within the meaning of

G. L. c. 278, § 33E

it is ORDERED.that the petition for leave

to pursue an appeal to the full court from the denial of the

defendant's fifth motion for a new trial shall be, and hereby

is, DENIED.

By the court,

A

i

/

/

O

ifitob-MH. J/n/C

Barbara jtfV/Lenk

Associate Justice

Entered: July 9, 2020

8

EXHIBIT 1

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 36 of 54

OlSTRtCT

OFF.

101

1

DOCKET NO.

YR.NUMBER

88

1602

FILING DATE

MO. DAY YR.

J

■uumt

OR

3

7

3

530

11 , 88

R

23

OIV.

MIT

! JUDGE

MAG.

COUNTY

88

25023

0117

DOCKET

YR. NUMBER

' JURY

DEM.

1602MA.

DEFENDANTS

PLAINTIFFS

Related To:87-28|8-Ma

1 Ronald W. Amaral

Abder Salim

-3t'2j9

P P Q r

t? »->

S o' P

*

f

!

j

! ■«*!***»

3|34>\fi

CAUSE

(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE

IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)

28 U.SiC./Sc 2254

Abder Salim, Pro-Se

S.E.C.C.

10 Administration Rd.

Bridgewater, Mass. 02324

c

CHECK

----- 1 HERE

IF CASE WAS

FILED IN

FORMA

PAUPERIS

ATTORNEYS

Judy G. Zeprun, AAG

Criminal Bureau

One Ashburton Place, Rm 1811

Boston, MA 02108

617-727-2200

STATISTICAL CAROS

FILING FEES PAID

DATE

UNITED STATES OISTRICT COURT DOCKET

RECEIPT NUMBER

C O. NUMBER

CARD

DATE MAILED

JS-5

JS-6

DC-111 (Rev. 6/87}

EXHIBIT 2

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 37 of 54

PROCEEDINGS

NR.

DATE

■88~1.602rMA

1988

/

June 30 vf 01

II

u

y02

1 03

*

04

July 12

ii

cs.

*

05 Appearance of Judy G. Zeprjun, FILED, cs

FILED, cs

MAZZONE, D.J., Re: #3 DENIED, cc/cl/

Jul 1

t> K)6 Respondent’s ANSWER,

1

15

Sep

Application to proceed in forma pauperis & Financial Affidavit. FILED.

COHEM, P.S.M.: Re: #01. ALLOWED. cc/cl.

Petition for a writ of habeas corpus. FILED.

P’s mtn for the Appointment of counsel. FILED.

P's marking mtn to schedule a hearing for P's mtn for appointment of counsel. FILED.

/

^107 Respondent's MOTION to Dismiss, FILED, cs

J '6 8 Memorandum in support of Motion to Dismiss, FILED, cs

09 Petitioner’s MOTION for Reconsideration of the Court's Denial

of his motion for appointment of counsel, FILED, cs

2

2

8

14

10 Petitioner's MOTION for leave to file a Motion and memorandum of law

in opposition to respondent's Motion to dismiss, FILED, cs

11 MAZZONE, D.J., Re: #10 ALLOWED. Memorandum to be filed on or before

October 11, 1988. cc/cl

Oct 11 .J12 Petitioner's memorandum of law in support of his opposition to

respondent's motion to dismiss, FILED, cs

MAZZONE, D.J., Re: #9 DENIED.

As stated earlier, the complaint is

Nov 17

clearly stated and the issues clearly presented, cc/cl

1989

Mar 7

13 MAZZONE, D.J., HBMO AND ORDER, In accordance with the foregoing, this

petition must be denied, SO ORDERED, entered, cc/cl.

/

ORDER OF DISMISSAL, entered, cc/cl.

9 ^

20 i 15 Notice of appeal, FILED.

Certified copy of docket, order and notice of appeal forwarded to

20

ct. of appeals.

15

Ap r

3

Certified copy of docket and original pleadings certified

to Court of Appeal.s

11

_______________

MAZZONE, P.J., Re: #15 Treated as a request for certificate of

probabl cause and ALLOWED, cc/cl

14

Aug

3

this date

Certified copy of docket & original pleadings forwarded to court of appeals.

16

USCA, Order of the Court, entered July 12, 1989.

The appellant

having remained in default, it is ordered that the appeal herein be

dismissed for want of prosecution.

Mandate issued.

EXHIBIT 2

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 38 of 54

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ABDER SALIM, Petitioner

Civil Action

88-1602-MA

Vs.

RONALD W. AMARAL, Respondent

MEMORANDUM AND ORDER

Mazzone, D.J.

March 7, 1989

This pro se habeas corpus petitioner was tried and convicted

of first degree murder in the Superior Court of Essex County on

June 1, 1981. 1

He appealed his conviction to the Massachusetts

Supreme Judicial Court, alleging seven grounds as the basis for

his appeal.

The court affirmed the conviction after thoroughly

reviewing the entire trial transcript and record in accordance

with Mass. Gen. L. ch. 278, § 33E.

399 Mass. 227 (1987).

See Commonwealth v. Salim.

The petitioner then filed his first

petition for habeas relief in this court, raising the same seven

grounds and adding several issues not presented to the state

court.

The court dismissed the petition without prejudice due to

petitioner's failure to exhaust his state remedies on those

additional grounds.

13, 1988).

1A

Salim v. Amaral, C.A. No. 87-2818-MA (April

This petition, filed on June 22, 1988, raises only

first trial ended in a mistrial on February 12, 1980.

EXHIBIT 3

<b

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 39 of 54

the seven grounds alleged in petitioner's original appeal to the

Supreme Judicial Court.

They are as follows:

(1) the prosecutor's improper attack on the credibility of

crucial defense witnesses;

(2) the "Contingent Fee" of defense counsel which

created a conflict of interest and deprived the

defendant of effective assistance of counsel exercising

independent professional judgment;

(3) the improper admission of evidence of the

defendant's purported bad character and criminal

propensity;

(4) the improper admission of prior recorded testimony

of two witnesses in violation of his constitutional

right to confrontation;

(5) the use of an interpreter without establishing the

need for, the competency of, and the impartiality of

the interpreter which diminished the defendant's right

to confrontation;

(6) the insufficient evidence to support the verdict;

(7) the improper argument by the prosecutor which urged

inferences not supported by the record, and verdict

against the weight of the evidence.

I.

The respondent has moved to dismiss, asserting that the

petition contains both exhausted and unexhausted claims.

Rose v.

The petitioner opposes

Lundy, 455 U.S. 509, 510 (1982).

dismissal, asserting that he has fairly presented to the state

courts the substance of his federal habeas claim, and thus

exhausted his state court remedies.

Anderson v. Harless, 459

U.S. 4, 6 (1982); See also Kines v. Butterworth. 669 F.2d 6, 12

(1st Cir. 1981), cert, denied. 456 U.S. 980 (1982).

In the First

Circuit, a petitioner may satisfy the exhaustion requirement by

2

EXHIBIT 3

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 40 of 54

any of the following methods: (1) citing a specific provision of

the Constitution, (2) presenting the substance of a federal

constitutional claim in such manner that it likely alerted the

state court to the claim's federal nature, (3) reliance on

federal constitutional precedents, and (4) claiming a particular

right specifically guaranteed by the Constitution.

Fair. 835 F.2d 6, 7 (1st Cir. 1987).

Gagne v.

Employing these standards,

I conclude the petitioner has presented his claims to the

Massachusetts Supreme Judicial Court in a manner which would have

"likely alerted" the state court to the federal constitutional

nature of the claims.2

Again, the Massachusetts Supreme Judicial

Court need not specifically address the claims on a

constitutional basis as long as the petitioner has likely alerted

it to their constitutional nature.

While I believe the

respondent's position has some merit, particularly with respect

to ground one, I am also mindful that the petitioner is

proceeding pro se. and is entitled to a more relaxed reading of

the pleadings.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Moreover, a dismissal would only delay further a review on

the merits.

Federal review should be delayed only when the

petitioner clearly failed to exhaust his state remedies.

In

2The respondent acknowledges that petitioner has exhausted his

state remedies with respect to grounds four, five and six.

Furthermore, the Massachusetts Supreme Judicial Court did not

indicate the law underlying its denial of petitioner's grounds

three and seven. Accordingly, I cannot fairly rule that the court

did not consider federal constitutional law in addressing those

grounds. Thus, I find the petitioner has sufficiently exhausted

his state remedies for grounds two through seven.

3

EXHIBIT 3

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 41 of 54

light of the salient issues presented here, namely, the

competence of counsel and the overall fairness of the entire

case, addressing the claims now without further examination of

the potential procedural defaults will save substantial time and

effort.

II.

I turn now to lay out the facts of this case,

I have relied

heavily on the factual record which was established by the

Massachusetts Supreme Judicial Court in the petitioners direct

appeal.

A federal court in habeas corpus proceedings must

presume that state court findings of fact are correct except when

one of seven specified factors is present or the federal court

determines that the state-court findings of fact are not

supported by the record.

(1981) (per curiam).3

Sumner v. Mata. 455 U.S. 591, 592

Examining the entire record with those

seven factors in mind, I find no basis for departing from the

high measure of deference that is owed to the state-court

factfindings.

See Commonwealth v. Salim. 399 Mass. 227 (1987).

328 U.S.C. § 2254(d) describes those seven factors as

follows:

(1) that the merits of the factual dispute were not

resolved in the State court hearing; (2) that the factfinding

procedure employed by the State court was not adequate to afford

a full and fair hearing; (3) that the material facts were not

adequately developed at the State court hearing; (4) that the

State court lacked jurisdiction of the subject matter or over the

person of the applicant in the State court proceeding; (5) that

the applicant was an indigent and the State court, in deprivation

of his constitutional right, failed to appoint counsel to

represent him in the State court proceeding; (6) that the

applicant did not receive a full, fair, and adequate hearing in

the State court? or (7) that the applicant was otherwise denied

due process of law in the State court proceeding.

4

EXHIBIT 3

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 42 of 54

On July 28, 1978, at about 5:10 p.m., emergency medical

technicians were dispatched to the defendant's home.

They found

the defendant crying and kneeling over his wife's badly beaten

body.

An autopsy revealed multiple puncture wounds about the

left chest and neck area? six wounds penetrated her heart.

These

wounds were consistent with those caused by an ice pick or a very

slim screwdriver.

The victim was about five months pregnant.

In

the medical examiner's opinion, death occurred two to five hours

prior to the discovery of the body, or between 12:10 p.m. and

3:10 p.m. on July 28, 1978.

After a state police detective read the petitioner his

Miranda rights, the petitioner told the police he had left the

house at 9:00 a.m. that day.

He received a call from his

children's day care center at about 5:00 p.m. informing him that

his wife had not picked up the children.

He picked them up,

returned home and discovered his wife's body.

He stated he was

happily married and blamed his wife's death on people in Lawrence

"who were out to get him."

When asked about scratches on his

face, neck and collar bone, the defendant explained he had caused

those marks by pulling at his face in his grief and distress at

finding his wife's body.

At the police station, he submitted to

a series of tests which revealed the presence of blood on his

hands.

During the investigation, a neighbor said that she had seen

the defendant approaching his house at about 1:00 p.m. on the day

of the murder wearing a striped shirt.

5

EXHIBIT 3

He picked up his mail

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 43 of 54

from the postman and continued to his door,

The postman

corroborated the neighbor's testimony.

The petitioner's brother-in-law and his bookkeeper also

contradicted the petitioner's account of his activities on that

His brother-in-law testified that the petitioner had left

day.

the store where they worked at about noon and returned at 12:30

The bookkeeper testified that the petitioner was not in the

p.m.

store from 1:00 p.m. to at least 1:45 p.m.

From 2:00 p.m. on,

the petitioner and his brother-in-law were together, until the

petitioner left to pick up his children at the day care center.

When the brother-in-law asked why the victim had not picked up

the children, the petitioner replied that she was sick,

Both of

these witnesses testified that the petitioner had changed from a

striped shirt he wore early in the day to a flowered green shirt

late in the afternoon.

The detective observed that the house showed little disarray

although the victim's pocket book had been opened and the

contents dumped on the table.

The scene showed no evidence of

forced entry or any attempt to remove property.

The defendant

claimed that the murderer came in through the open window and

left through the door which was ajar when he came home.

Finally, witnesses testified that the petitioner had

threatened to kill his wife on several occasions and had told

others of his intentions to kill her.

He had offered his former

driver $2,000 to kill her and repeated this offer about ten

times.

He asked a friend to purchase an ice pick which was in

6

EXHIBIT 3

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 44 of 54

his van the day before the murder,

He also borrowed a leather

punching tool the day before the murder.

The petitioner, an

immigrant from Jordan, rejected a suggestion that he get a

divorce, stating that his people "have their own way of doing

things."

He stated that his wife was "a whore and she was

pregnant and it wasn't his."

He stated his wife should die and

he was going to kill her.

On the foregoing summary, I now turn to each of the seven

grounds asserted by the petitioner, seriatim.

III.

1.

The prosecutor's attack on the credibility of defense

witnesses.

Petitioner claims that the prosecutor's cross-examination of

key defense witnesses at the petitioner's second trial was

improper because it elicited testimony about the witnesses

failure to testify at petitioner's first trial,

At the second

trial, the defendant produced five witnesses who testified that

they had seen the victim between 12:30 p.m. and 2:00 p.m. on the

day of the murder.

They testified that the victim came to their

homes to collect money due on their accounts,

Six other

witnesses testified that they saw the defendant in the store on

that day between 2:30 p.m. and 5:00 p.m.

On cross-examination,

the prosecutor elicited from each of these witnesses that they

did not testify at the first trial although they had known the

defendant and the victim for a considerable period of time.

petitioner failed to object to this evidence at trial.

7

EXHIBIT 3

The

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 45 of 54

The basis of the petitioner's objection is that the

prosecutor failed to establish a proper foundation for that line

of questioning.

The type of foundation required was set out in

Coimnonwealth v. Brown. 11 Mass. App. Ct. 288, 296-97 (1981),

which states that the prosecutor must first establish that the

witness knew of the pending charges in sufficient detail to

realize that he possessed exculpatory information, that the

witness had reason to make information available, that he was

familiar with the means of reporting it to the proper

authorities, and that the defendant or his lawyer, or both, did

not ask the witness to refrain from doing so.

Since the petitioner did not raise this issue at trial, it

is subject to the contemporaneous objection rule requiring that

the petitioner show cause for the procedural error and actual

prejudice.

Wainwriaht v. Sykes, 433

U.S. 72, 87 (1977).

Moreover, the trial errors must have worked to the petitioner's

actual and substantial disadvantage resulting in an unfair trial.

United States v. Fradv. 456 U.S. 152, 170 (1982).

The petitioner's allegation, even if true, does not result

in an "error of constitutional dimensions."

170.

Fradv. 456 U.S. at

Furthermore, this record does not reveal a substantial risk

of a miscarriage of justice.

Wainwright. 433 U.S. at 91.

The

cross-examination was aimed properly at the credibility of

witnesses who professed to know the victim and defendant well,

and who testified as to events which took place almost three

years earlier.

The jury had the ability to view the witnesses

8

EXHIBIT 3

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and assess their credibility under fair circumstances.

Thus, the

petitioner has failed to show the cause for the procedural error

as well as the necessary level of prejudice to his case to

warrant reversal on this ground.

2.

The "Contingent Fee11 of counsel

The petitioner claims that the existence of a $75,000

insurance policy on the victim's life, payable to the defendant

upon his acquittal, created a contingency fee arrangement in

violation of S.J.C. Rule 3:05(3), as amended, 382 Mass. 762

(1981).

Petitioner further alleges that this contingency fee

created a conflict of interest and deprived petitioner of

effective assistance of counsel exercising independent

professional judgement,

The Supreme Judicial Court concluded

there was no contingency fee agreement, and did not reach the

merits of the claim.

However, the court recognized the claim was

for a denial of effective assistance of counsel.

Strickland v.

Washington. 466 U.S. 668 (1984).

The court had appointed trial counsel for the defendant

before discovering the insurance policy.

After discovery of the

policy, the trial judge indicated that counsel would be paid from

the life insurance proceeds only if the petitioner were aquitted

as the defendant would then be ineligible to receive public

funds.

These circumstances present no violation of S.J.C. Rule

3:05(3) which prohibits a fee agreement contingent upon a

favorable disposition of a criminal charge.

9

EXHIBIT 3

The trial court

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 47 of 54

simply advised the petitioner that if he became able to pay

reasonable counsel fees, he would be called upon to do so.

Only

the source of payment of the counsel's fee was ever in question.

As no contingency fee existed, petitioner fails on this ground.

3.

The evidence of the defendant's purported bad character

and criminal propensity.

The petitioner claims that the admission of evidence of his

purported bad character and criminal propensity was prejudicial

error.

At trial, various witnesses testified to the defendant's

abusive treatment of the victim prior to the murder and his

violent reaction when the victim objected to his striking his

child in the presence of others.

Other witnesses testified that

the defendant threatened to kill the victim on other occasions.

Witnesses also testified that the defendant tried to pay his

bookkeeper a salary "under the table," and that he had declared

bankruptcy.

First, petitioner failed to object to the testimony of these

witnesses at trial. Thus, as previously discussed, this claim is

also subject to the contemporaneous objection rule.

Wainwright, 433 U.S. at 87.

See

See also Fradv. 456 U.S. at 170.

Secondly, habeas corpus review does not ordinarily extend to

state court rulings on the admissibility of evidence.

Lisenba v.

California. 314 U.S. 219, 228 (1941); Puleio v. Vose. 830 F.2d

1197, 1204 (1st Cir. 1987), cert, denied. 108 S. Ct. 1297 (1988).

In the First Circuit, a federal court will review a state court's

evidentiary ruling only if the alleged error is of constitutional

10

EXHIBIT 3

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magnitude, so infusing the trial with inflammatory prejudice as

to render a fair trial impossible.

Allen v. Snow. 489 F. Supp.

668, 673 (D. Mass. 1980), aff'd. 635 F.2d 12 (1st Cir. 1980),

cert, denied. 451 U.S. 910 (1981).

In light of this heightened

standard and the total evidence presented at trial, allowing the

jury to hear this evidence was not a constitutional error calling

for reversal on this ground. Furthermore, the petitioner has

failed to show the cause for his failure to object to the offer

of the testimony, as well as the necessary level of prejudice to

his cause to warrant reversal on this ground.

4.

The admission of prior recorded testimony.

The petitioner asserts that the admission of prior recorded

testimony of two men, who claimed to have been solicited by the

defendant to kill his wife, violated his constitutional right to

confrontation.

Edwin Mercado testified at the petitioner's first

trial, and Jesus Rosario testified at the probable cause hearing.

Both witnesses testified that the defendant had offered each of

them $2,000 to kill the petitioner's wife.

The authorities were

unable to locate either Mercado or Rosario at the time of the

petitioner's second trial.

The sixth amendment right of an accused to confront the

witnesses against him is a fundamental right made obligatory on

the states by the fourteenth amendment.

U.S. 400, 403 (1965).

Pointer v. Texas. 380

For prior recorded testimony to be

admissible, the witness must be unavailable at the time of the

trial.

Fed. R. Evid. 804(b).

Also, the party seeking

11

EXHIBIT 3

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introduction of the testimony must have made a good faith effort

to produce the witness.

Barber v. Page. 390 U.S. 719, 724-25

(1968)7 UiS. V. Mann. 590 F.2d 361, 367 (1st Cir. 1978).

Finally, the petitioner must have had a meaningful opportunity to

cross-examine the witness at the time of the prior testimony.

Davis v. Alaska. 415 U.S. 308, 315-16 (1974).

The record shows that the trial judge properly ruled that

both witnesses were unavailable at the time of the second trial.

See Mann. 590 F.2d at 367. The respondent made a genuine, bonafide search for the witnessses using reasonable diligence and

care.4

More importantly, the record shows that experienced

counsel represented the client at the probable cause hearing and

cross-examined Rosario extensively.

Similarly, the petitioner's

counsel cross-examined Mercado at the petitioner's first trial.

Accordingly, admission of this prior recorded testimony did not

deny defendant the right of confrontation.

Douglas v. Alabama.

380 U.S. 415 (1965); Pointer v. Texas. 380 U.S. 400, 403 (1965).

5.

The use of an interpreter.

4Lieutenant Joseph Golden, of the Lawrence police

department, conducted the searches for both Mercado and Rosario.

The search for Mercado entailed inquiries of Mercado's family as

to his whereabouts, inquiries of police officers in the town

where Mercado's family members thought Mercado was living, and

inquiries with the office of the division of employment security

in Lawrence. The search for Rosario entailed a review of the

local division of employment security records, death records,

voting records, police records, probation department records,

Social Security records and Registry of Motor Vehicles records.

Golden also questioned local businessmen known to hire Hispanics

and searched various clubs which Hispanics frequent in his search

for Rosario.

12

EXHIBIT 3

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The petitioner claims the trial court failed to establish

the need for, and the competency and impartiality of the

interpreter, resulting in a diminution of his right to

confrontation.

At trial, one witness indicated to the trial

judge that he understood limited amounts of English, and that he

thought an interpreter would aide in communicating his answers to

the jury.

Accordingly, the trial judge appointed an interpreter.

The qualifications and impartiality of the interpreter, as well

as the need for one, fall within the sound discretion of the

trial judge.

United States v. Carrion. 488 F.2d 12, 14 (1st Cir.

1973), cert, denied. 416 U.S. 907 (1974).

Therefore, absent a

showing of abuse of this discretion, the trial judge's decision

must stand.

See Carrion. 488 F.2d at 14.

The record substantiates that the trial judge was within his

realm of discretion in appointing the interpreter.

The record

indicates that the interpreter was fluent in Arabic and could

understand the witness's answers in that language.

Furthermore,

the interpreter's academic background and experience were

impressive.

Despite the interpeter's conversations with the

petitioner prior to trial, the interpreter acknowledged his duty

to act as an impartial interpreter throughout the trial.

Finally, the defendant did not object to the appointment of the

interpreter at trial and had ample opportunity to cross-examine

the witness through use of the interpreter.

petitioner fails on this ground.

13

EXHIBIT 3

Accordingly, the

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 51 of 54

6.

Insufficient evidence to support the verdict.

The petitioner alleges that the evidence was insufficient to

A federal court must reverse a

support the verdict of guilty,

state conviction if, after viewing the evidence in the light most

favorable to the prosecution, a court finds that no rational

trier of fact could have found, beyond a reasonable doubt,

sufficient evidence of the crime of which the defendant was

convicted.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)?

Joseph v. Fair. 763 F.2d 9, 10 (1st Cir. 1985).

As previously discussed, I find that there is no basis to

depart from the deference owed state court factfindings.

are entitled to a presumption that they are correct.

Mata, 455 U.S. 591 (1981)(per curiam).

They

Sumner v.

On this record, a

rational trier of fact could have found the essential elements

beyond a reasonable doubt.

Jackson v. Virginia. 443 U.S. 307,

318-319 (1979); Joseph v. Fair. 763 F.2d 9, 10 (1st Cir. 1985).

Although the record does not reveal any direct evidence of the

petitioners involvement in the murder, the circumstantial

evidence clearly supports the jury's verdict,

The record

provides evidence of the petitioner's belief that his wife was

pregnant with another man's child, and thus had a possible motive

to kill the victim.

Several witnesses testified that the

petitioner, on various occasions, had offered them money in

exchange for killing the victim.

The petitioner incurred

scratches in the face, neck and collarbone area on the day of the

murder.

Tests at the police station on the day of the murder

14

EXHIBIT 3

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revealed traces of blood on the petitioner's hands.

Witnesses

saw the petitioner enter the scene of the murder at the estimated

time of the crime, and noticed that the petitioner had changed

clothes following the estimated time of the murder.

The

petitioner had acquired an ice pick and borrowed a leather

punching tool the day prior to the murder.

Finally, the

defendant had threatened to kill the victim himself prior to the

crime.

Based on this record, a rational trier of fact could have

found, beyond a reasonable doubt, sufficient evidence to support

the verdict of guilty.

Jackson, 443 U.S. at 318-19.

Accordingly, the petitioner fails on this ground.

7.

The prosecutor's argument.

The petitioner combines a claim that the prosecutor's

argument was unfairly prejudicial with a general claim that the

verdict was against the weight of the evidence.

In order for

this court to reverse the state court conviction on this ground,

the prosecutor's comments must have been so prejudicial as to

have infected the entire trial process and denied the defendant

due process.

Donnelly v. DeChristoforo. 416 U.S. 637, 643

(1974); Therrien v. Vose, 782 F.2d 1, 4 (1st Cir. 1986), cert,

denied. 476 U.S. 1162 (1986).

Although a prosecutor may not

manipulate or misrepresent evidence, he has the responsiblity to

organize the evidence in his closing argument in a manner that

will prove the government's case.

Therrien. 728 F.2d at 6.

I find nothing in the conduct of the prosecutor which

supports the claim.

Furthermore, as discussed in ground six, the

15

EXHIBIT 3

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 53 of 54

record clearly shows ample evidence to support the verdict.

In accordance with the foregoing, this petition must be

denied.

SO ORDERED.

United States District Judge

£

16

EXHIBIT 3

Case l:20-cv-11539-PBS Document 34 Filed 08/16/21 Page 54 of 54

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ABDER SALIM/ Petitioner

vs.

Civil Action

88-1602-MA

RONALD W. AMARAL/ Respondent

ORDBl OF DISMISSAL

MAZZONE/ D.J./

In accordance with the Court1 s memorandum and order dated March 7/ 1989/

summarily dismissing this petition under 28 U.S.C.£ 2254 for writ of habeas

corpus by a person in state custody/ it is hereby ordered that the above entitled

action be and hereby is dismissed.

By the Court/

HUCLj?

March 9/ 1989

Deputy Clerk

EXHIBIT 4

Additional material

from this filing is

available in the

Clerk's Office.