Abrante v. St. Amand

Filing 920100203

Opinion

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var WPFootnote1 = 'Of the District of New Hampshire, sitting by designation.\
'

var WPFootnote2 = 'In addition, the government introduced ample corroborating\
evidence of Abrante\'s direct involvement in the crimes at issue.\
'

var WPFootnote3 = 'The other inmate informants were Rodolofo Melendez and Miguel\
Oyola. According to Abrante, Oyola was unable to make a formal\
statement because of mental competence issues.\
'

var WPFootnote4 = 'The MAC appears to have been referring to all four\
informants. Respondent argues that Abrante\'s argument applies only\
to the two testifying informants, but Abrante contends that because\
elicitation is the prohibited conduct that violates the Sixth\
Amendment, the argument is relevant to all four inmates. We\
assume, without deciding, that the government\'s contact with all\
four informants is properly at issue.\
'

var WPFootnote5 = 'The issue that recently concerned the Supreme Court in Wood\
v. Allen, No. 08-9156, 2010 WL 173369 (Jan. 20, 2010), is not\
presented by this case. Id. at *8 (electing not to resolve "how\
and when" § 2254(e)(1)\'s requirement that a petitioner rebut a\
state court\'s presumptively correct factual determinations with\
"clear and convincing evidence" applies in challenges to state\
court findings of fact under § 2254(d)(2)). Abrante concedes in\
his brief that he is obliged to establish by clear and convincing\
evidence that the presumptively correct state court findings were\
unreasonable.\
'

var WPFootnote6 = 'The final notation in Tolentino\'s case docket indicates that\
he may have been deported.\
'

var WPFootnote7 = 'Abrante\'s only evidence that police did anything other than\
ask Maldonado and Melendez whether Abrante had already discussed\
his case with them is the testimony of defense investigator Philip\
Kass. Kass testified that Maldonado told him that police had told\
Maldonado that they could help him with his case if he would talk\
with them about Abrante. But Kass also testified that Maldonado\
told him this in English, without an interpreter, even though\
Maldonado indicated that he would be more comfortable with an\
interpreter. This is not clear and convincing evidence sufficient\
to rebut the state court\'s finding that there was no agreement\
between the government and Maldonado before Maldonado heard\
Abrante\'s admissions.\
              As for Tolentino, there is no evidence that police approached\
him about Abrante\'s case. The record reflects that after his\
January 2002 meeting with Officer Lozada, Tolentino "learned that\
the police were looking for people to testify against [Abrante],"\
but it is unclear how he came by that information.\
'

var WPFootnote8 = 'Abrante makes an additional argument that the appeals court\
further engaged in an unreasonable application of clearly\
established federal law when it "drew two diametrically opposed\
conclusions: either that this was a case where the police told\
inmates to \'keep their ears open\' OR this was a case where the\
conversations occurred prior to any contact with police." \
(emphasis in original). As discussed supra, the court did not\
reach a conclusion regarding whether police told the informants\
that they were seeking information about Abrante. Moreover, it is\
unclear how a court could engage in an unreasonable application of\
clearly established federal law merely by assuming a fact for the\
sake of argument.\
'

var WPFootnote9 = 'Abrante also claims that the MAC\'s decision was contrary to\
Arizona v. Fulminante, 499 U.S. 279 (1991), but as he has offered\
no explanation as to why that case applies to these facts, we\
consider this argument waived. See United States v. Zannino, 895\
F.2d 1, 17 (1st Cir. 1990).\
'

var WPFootnote10 = 'Abrante claims that the evidence in the state court\
proceedings failed to establish a trusting relationship between\
Abrante and the informants, despite the fact that they were housed\
in close proximity. He then states that some of the informants\
spoke of a fear of Abrante and concludes, "[l]ogically, if they\
feared him, they did not share his confidence and they would not\
have spent time alone with him."\
              Abrante also notes that none of the informants testified in\
Fernando Perez\'s trial in November 2001. He speculates that their\
failure to come forward prior to Perez\'s trial is an indication\
that they fabricated confessions after learning that the government\
wanted information about Abrante.\
              Additionally, Abrante suggests that the testimony was false\
because, he claims, it did not match eyewitness accounts or the\
defendant\'s own words.\
              Finally, Abrante claims that Maldonado and Tolentino\'s\
testimony against Abrante was manufactured based on notes that\
Melendez made after his first conversation with police about\
Abrante. Melendez later turned these notes over to detectives. \
Unlike Melendez\'s subsequent statement, dated February 14, 2002,\
these notes, dated January 24-26, were written in Spanish, and thus\
potentially readable by Tolentino and Maldonado, neither of whom\
could read English. Abrante claims that a phrase used by both\
Tolentino and Maldonado at trial ("kill that cabron") came directly\
from Melendez\'s notes. According to Abrante, the notes were\
produced in discovery, and available to Tolentino and Maldonado. \
However, it is not clear from the record that either Tolentino or\
Maldonado ever saw these notes. Maldonado testified that he\
neither looked at any of the paperwork from Abrante\'s case, nor did\
Abrante read any of it to him. Tolentino testified that Abrante\
showed him Melendez\'s "statement," but it is unclear whether he was\
referring to the English statement of February 14, 2002, or the\
Spanish notes of January 24-26.\
'

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