Abrahams v. Ryan

Filing 25

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. For the reasons discussed above, Abrahams' petition for a writ of habeas corpus [ECF No. 1] is hereby DENIED. The district court must issue or deny a certificate of appe alability when it enters a final order adverse to a habeas petitioner. Rules Governing Section 2254 Cases, R. 11(a). Because Abrahams has not made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability here. So Ordered. (See attached Order) A copy of this Order has been mailed to the Petitioner. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBIN ABRAHAMS,

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Petitioner,
v.
KELLY RYAN,
Respondent.

Civil Action No. 15-cv-12935-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Petitioner Robin Abrahams is currently serving a sentence of 45–60 years following his
convictions for the forcible rape of a child, pursuant to Mass. Gen. Laws ch. 265, § 14, and
armed assaultive burglary, pursuant to Mass. Gen. Laws ch. 266, § 14. Presently pending before
this Court is Abrahams’ petition for a writ of habeas corpus brought pursuant to 28 U.S.C. §
2254, in which he argues that the DNA evidence and identification evidence presented at trial
were unlawfully obtained and should have been suppressed. For the reasons set forth herein, this
Court DENIES Abrahams’ petition for a writ of habeas corpus.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Massachusetts Appeals Court provided the following account of the facts, which is

summarized in pertinent part. See Commonwealth v. Abrahams, 6 N.E.3d 1095 (Mass. App. Ct.
2014).
In 1991, the victim, then fifteen years old, was raped in her bedroom on the second floor
of a two-story apartment building in Newburyport in the early morning hours. She awoke to see
the rapist, who had broken into the apartment, standing over her. She did not scream or cry

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because she feared that he would hurt her, and because she worried that the rapist would also
hurt her mother, who was sleeping in a bedroom nearby. After raping the victim, the rapist left
through a window. The victim was immediately taken to a hospital, where a sexual assault
evidence collection kit was assembled and provided to the police. The police took the sheets
from the victim’s bed, which contained seminal fluid in several locations, as well as other items
from her bedroom. Fifteen years after the incident, Abrahams was identified as the suspect based
on a DNA match. The process by which he was identified is detailed below.
In 1993, a chemist at the state police crime laboratory identified the seminal fluid in
multiple areas of the victim’s bed sheets. In January 2004, the laboratory sent a cutting from the
bed sheets to a private company for DNA analysis. In August 2005, Abrahams was brought to
the Essex County Correctional Facility from another state based on an outstanding Massachusetts
warrant. He was arraigned on charges unrelated to the present case including assault with intent
to rape, indecent assault and battery, and burglary. Abrahams remained in custody as a pre-trial
detainee because he was unable to post bail. While he was being held on those outstanding
charges, a judge in Newburyport District Court sentenced Abrahams to concurrent ten-day terms
on prior convictions, which were also unconnected to the instant case. He served the sentences
on those convictions in October of 2005 at the Essex County Correctional Facility, but remained
in custody at the facility as a pre-trial detainee based on the other still outstanding charges.
On November 2, 2005, an employee at the Essex County Sherriff’s Department obtained
a sample of Abrahams’ blood by pricking his finger. 1 The sample was then mailed to the

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Massachusetts statutes authorize and govern the collection of blood from convicted offenders.
The statutes relevant here include Mass. Gen. Laws ch. 22E, § 3 and St. 1997, ch. 106, § 8.
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Combined DNA Index System Unit (“CODIS”). 2 In February of 2006, CODIS determined that
the DNA profile obtained from Abrahams’ blood sample matched the DNA profile obtained
from the seminal fluids on the bed sheets of the victim in the present case.
Abrahams was subsequently indicted by a grand jury for the 1991 forcible rape of the
victim (then a child) and armed assaultive burglary. Based on the previous DNA match from his
blood sample, the Commonwealth obtained a court order to take a buccal swab sample to collect
additional DNA from Abrahams’ interior cheek prior to the trial. The DNA profile generated
from the results of the buccal swab sample from Abrahams also matched the DNA profile
obtained from the bed sheets. Abrahams then filed a motion to suppress the DNA results
obtained from the initial blood test taken while he was incarcerated, and all subsequent evidence
obtained as a result, on the ground that the initial collection of his blood was not authorized by
the state statutes governing the collection of DNA samples of convicted offenders: Mass. Gen.
Laws ch. 22E, § 3 and St. 1997, ch. 106, § 8. 3 The trial court denied the motion to suppress, and
following a jury trial, Abrahams was convicted of the forcible rape of a child and armed
assaultive burglary.
The Massachusetts Appeals Court affirmed Abrahams’ convictions. 4 On July 30, 2014,
the Massachusetts Supreme Judicial Court (“SJC”) denied his application for further appellate
review. On July 10, 2015, Abrahams filed his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 [ECF No. 1], and on December 10, 2015, filed his accompanying memorandum of
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CODIS is a national DNA indexing system that uses forensic science to connect violent crimes,
which enables federal, state, and local forensic laboratories to exchange and compare DNA
profiles, thereby linking serial violent crimes to each other and to known offenders.
3
St. 1997, ch. 106, § 8 was replaced by the enactment of St. 2003, ch. 107, § 2, but the relevant
language is unchanged. In its opinion concerning Abrahams’ appeal, the Massachusetts Appeals
Court consistently refers to the 2003 statute.
4
Abrahams contends that the Appeals Court also reduced his minimum sentence by ten years
[ECF No. 1], but upon review of the record, the Court was not able to confirm this assertion.
3

law in support [ECF No. 19]. On April 5, 2016, Respondent Kelly Ryan filed a memorandum of
law in opposition to the petition [ECF No. 22], and on May 19, 2016, Abrahams filed a response
[ECF No. 23].
II.

LEGAL STANDARD
A federal district court’s review of a state criminal conviction is governed by

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA permits federal
courts to grant habeas relief after a final state adjudication of a federal constitutional claim only
if that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” clearly established Supreme Court precedent if the
state court arrives at a conclusion opposite that reached by the Supreme Court on a question of
law or if the state court decides a case differently from a decision of the Supreme Court on a
materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state
court decision is considered an unreasonable application of Supreme Court precedent if the state
court identifies the correct legal rule but unreasonably applies it to the facts. Id. at 407. An
unreasonable application requires “some increment of incorrectness beyond error.” Norton v.
Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (internal quotations omitted). Lastly, a state court
judgment is based on an unreasonable determination of the facts if the decision is “objectively
unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).

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To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fair minded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits . . . .” Id. at 99. “[T]he state court’s factual findings are
entitled to a presumption of correctness that can be rebutted only by clear and convincing
evidence to the contrary.” Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (internal quotations
omitted). Thus, the petitioner’s burden in this regard is “heavy,” and, if it is not met, “a federal
habeas court must credit the state court’s findings of fact—and that remains true when those
findings are made by a state appellate court as well as when they are made by a state trial court.”
Id.
III.

DISCUSSION
In his petition, Abrahams presents two grounds for federal habeas relief: (1) that the

taking of his DNA sample was unlawful; and (2) that the identification of Abrahams as the rapist
was unnecessarily suggestive and in violation of his constitutional rights. Ryan argues that
neither of these grounds warrant relief pursuant to the AEDPA because ground one presents an
issue of state law which is not susceptible to federal habeas relief, and the identification
procedure challenged in ground two was neither contrary to nor an unreasonable application of
clearly established Supreme Court law. Because Abrahams is proceeding pro se, the Court will
construe his claims liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
A.

Ground One: DNA Sample

Abrahams first contends that taking a DNA sample from him while he was in custody at
the correctional facility was unlawful. On appeal in state court, he claimed that this was unlawful
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because the sample was obtained in violation of a state statute governing the collection of DNA
from incarcerated persons. The Appeals Court determined that it was not obtained in violation of
the state statute. It also noted that Abrahams did not claim any state or federal constitutional
violations in his state court appeal. See Abrahams, 6 N.E. 3d at 1095, 1098 (issue on appeal was
“the proper construction of a statute governing . . . [DNA] samples” and “defendant does not
claim any constitutional violation”).
When “conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States,” and it is “not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The interpretation of a state statute is
a state-law question. See e.g., Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993) (“There is no
doubt that we are bound by a state court’s construction of a state statute.”); Marshall v. Bristol
Super. Ct., 753 F.3d 10, 18 (1st Cir. 2014) (a federal habeas court is bound by the state court’s
construction of its own law); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s
interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”). Here, the Massachusetts Appeals
Court determined that the statute governing the collection of DNA from incarcerated persons
applied to Abrahams because, although he had completed his previous sentence, he remained in
custody as a pre-trial detainee on other charges. Abrahams, 6 N.E.3d at 1097–98. Thus, as
Abrahams was still in custody, the statute applied to him because it specified that persons
incarcerated for certain offenses must submit a DNA sample prior to their release from custody.
Id. The court concluded that because the DNA was properly collected from Abrahams,

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suppression was not required. Id. Accordingly, this Court cannot adjudicate petitioner’s claim to
the extent that he raises an issue pertaining to the construction of Massachusetts state statutes.
Even construing Abrahams’ petition liberally, to the extent that he now seeks to assert
that the DNA collection constituted an unreasonable search and seizure, the argument fails
because he has not exhausted his federal constitutional claim in state court. Habeas relief “shall
not be granted unless . . . the applicant has exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). “This exhaustion requirement . . . is born of the principle ‘that
as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until
after the state courts have had an opportunity to act.’” Coningford v. Rhode Island, 640 F.3d 478,
482 (1st Cir. 2011) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)). “[F]ederal courts have
enforced the exhaustion requirement consistently and rigorously” with very few exceptions, and
“a habeas petitioner bears a heavy burden to show that he fairly and recognizably presented to
the state courts the factual and legal bases” of his federal claims. Adelson v. DiPaola, 131 F.3d
259, 262 (1st Cir. 1997) (internal citations omitted).
To meet his burden, the habeas petitioner must demonstrate that he presented each and
every claim “in such a way as to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question.” Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994).
The First Circuit has “identified at least five ways in which a habeas petitioner may satisfy the
‘fair presentment’ requirement,” including “reliance on a specific provision of the Constitution,
substantive and conspicuous presentation of a federal constitutional claim, on-point citation to
federal constitutional precedents, identification of a particular right specifically guaranteed by
the Constitution, and assertion of a state-law claim that is functionally identical to a federal
constitutional claim.” Coningford, 640 F.3d at 482 (citing Scarpa, 38 F.3d at 6). In making this

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determination, “the decisive pleading is the application for further appellate review [ALOFAR].”
Adelson, 131 F.3d at 263. “The petitioner . . . may not raise an issue before the Appeals Court,
abandon it in his ALOFAR, and then raise it again in his habeas petition; rather, in order to
survive the exhaustion requirement, an issue must be raised ‘within the four corners of the
ALOFAR.’” Gonsalves v. Thompson, 396 F. Supp. 2d 36, 40 (D. Mass. 2005) (quoting Mele,
850 F.2d at 823). Accordingly, “the exhaustion doctrine requires a habeas applicant to do more
than scatter some makeshift needles in the haystack of the state court record.” Martens v.
Shannon, 836 F.2d 715, 717 (1st Cir. 1988). “The ground relied upon must be presented face-up
and squarely; the federal question must be plainly defined. Oblique references which hint that a
theory may be lurking in the woodwork will not turn the trick.” Id.
Here, Abrahams has not exhausted his state court remedies regarding the argument that
the taking of his DNA constituted an unconstitutional search and seizure. In his application to the
SJC for further appellate review, 5 he did not substantively and conspicuously present a federal
constitutional claim, point to a particular right specifically guaranteed by the Constitution, cite to
a specific constitutional provision, or cite to federal constitutional precedent. Rather, Abrahams
relied purely on Massachusetts case law and state statutes. “[A]bsent clear and traditional
articulation of a claim in language known to preserve a potential federal claim, state-law
formulations should most often be construed as raising purely state-law issues.” Nadworny v.
Fair, 872 F.2d 1093, 1099 (1st Cir. 1989). Further, the First Circuit has cautioned that “the only
safe course for a petitioner is explicitly to identify his federal constitutional claims before the
state court. This course will not only give the state courts a fair opportunity to correct any

“For purposes of the exhaustion requirement, it does not matter whether the SJC actually rules
on the issue, so long as the issue was presented in the ALOFAR.” Gonsalves v. Thompson, 396
F. Supp. 2d 36, 40 n.2 (D. Mass. 2005).
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constitutional error but will obviate the need for . . . minute retrospective dissection of state court
proceedings.” Dougan v. Ponte, 727 F.2d 199, 202 (1st Cir. 1984). Abrahams claims that he has
adequately raised a federal issue because he “presented a federal claim and relied upon federal
holdings in his application.” [ECF No. 23]. Upon review of his application for further appellate
review, however, the Court does not agree that Abrahams adequately raised any federal claims.
Abrahams did not cite to any federal cases, and does not claim that any state-law claims he relied
on were functionally identical to a federal constitutional claim. At most, Abrahams refers to a
“substantial violation of individual rights” and an “unlawful search” in passing, which does not
suffice as an adequate presentation of the issue in state court. See e.g., Adelson, 131 F.3d at 263
(“[T]he mere incantation of constitutional buzzwords, unaccompanied by any federal
constitutional analysis, does not suffice to carry the burden of demonstrating fair presentment of
a federal claim.”); Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987) (“oblique” invocation of phrase
“due process” not enough for fair presentment); Dyer v. Ponte, 749 F.2d 84, 86–87 (1st Cir.
1984) (“cursory references” to due process and fourteenth amendment raise doubts about
adequacy of presentment); Dougan, 727 F.2d at 199–201 (broad and opaque labels, such as
denial of a “fair trial” not enough). Thus, Abrahams failed to fairly present in state court his
constitutional claim that the taking of a sample of his DNA constituted an unreasonable search
and seizure in violation of the Fourth Amendment. Accordingly, this claim is unexhausted.
Notwithstanding Abrahams’ failure to exhaust the remedies available in the courts of the
state, a district court may deny his petition for a writ of habeas corpus on the merits. 28 U.S.C.
§ 2254(b)(2); see also Gonsalves, 396 F. Supp. 2d at 43. Here, Abrahams’ claim is barred
because habeas relief cannot be granted on the ground that evidence obtained in violation of the
Fourth Amendment was introduced at trial. Stone v. Powell, 428 U.S. 465, 494 (1976); see also

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Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001) (“[A] federal habeas court ordinarily cannot
revisit a state court’s disposition of a prisoner’s Fourth Amendment claims.”). The court in Stone
reasoned that the purpose of the exclusionary rule, to deter improper police conduct, is not
served by additional review of the evidence in collateral habeas proceedings years later. 428 U.S.
at 492–93. “Even if one rationally could assume that some additional incremental deterrent effect
would be presented in isolated cases, the resulting advance of the legitimate goal of furthering
Fourth Amendment rights would be outweighed by the acknowledged costs” of the exclusionary
rule. Id. at 493–94. Accordingly, “where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.” Id. at 494; see also Connolly v. Roden, No. 09-11987-RWZ, 2013 WL
139702, at *2 (D. Mass. Jan. 11, 2013), aff’d, 752 F.3d 505 (1st Cir. 2014). 6 Therefore,
Abrahams’ first ground for relief is unavailing.
B.

Ground Two: Identification Procedure

Abrahams next contends that the trial court’s failure to suppress the victim’s
identification of Abrahams in a photo array violates his Fifth, Sixth, and Fourteenth Amendment
rights. Abrahams argues that the state court’s decision not to suppress the identification was

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An exception to this rule exists where the state has not “provided an opportunity for full and
fair litigation of a Fourth Amendment claim.” Stone, 428 U.S. at 494. “The petitioner bears the
burden of proving that his case fits within the contours of the exception.” Sanna, 265 F.3d at 8.
Here, Abrahams has not attempted to show that he did not have the opportunity to fully and
fairly litigate a Fourth Amendment claim. Id. (“A ‘full and fair opportunity’ to litigate means that
the state has made available to defendants a set of procedures suitably crafted to test for possible
Fourth Amendment violations.”). Given that Abrahams was accorded the opportunity to present
the argument, when represented by counsel, in a motion to suppress and in a suppression hearing,
see Supplemental Answer at 19, 128, the Court does not find reason to believe that he has not
otherwise had a full and fair opportunity to litigate his claim.
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contrary to the Supreme Court’s holding in Perry v. New Hampshire, 565 U.S. 228 (2012), the
standard for suppression under the due process clause. 7
Due process concerns arise when law enforcement officers use an identification
procedure that is both “suggestive and unnecessary.” Perry, 565 U.S. at 228. Pre-trial
identification can violate due process when it is the product of improper police conduct that
renders it “so impermissibly suggestive” as to give rise to a “substantial likelihood of irreparable
misidentification.” Manson v. Brathwaite, 432 U.S. 98, 105 n.8 (1977). Even if the police used a
suggestive procedure, however, suppression of the identification evidence is not inevitable. Id. at
112–13. “Rather, ‘if the indicia of reliability are strong enough to outweigh the corrupting effect
of the . . . suggestive circumstances, the identification evidence ordinarily will be admitted, and
the jury will ultimately determine its worth.’” Moore v. Dickhaut, 842 F.3d 97, 101 (1st Cir.
2016) (citing Perry, 565 U.S. at 231). “The due process check for reliability . . . comes into play
only after the defendant establishes improper police conduct.” Perry, 565 U.S. at 228. “Absent
unnecessarily suggestive procedures, reliability is ensured through traditional trial protections,
such as ‘the presence of counsel at postindictment lineups, vigorous cross-examination,
protective rules of evidence, and jury instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved beyond a reasonable doubt.’” Moore, 842
F.3d at 101 (quoting Perry, 565 U.S. at 233).
In this case, Abrahams argues that the identification evidence was impermissibly
suggestive because the police officers told the victim that the suspect’s DNA matched the

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Because Abrahams has not clarified his arguments any further, the Court will construe his Fifth
Amendment claim as being the same as his Fourteenth Amendment claim regarding due process
rights, and will interpret them as one and the same. See Kirby v. Illinois, 406 U.S. 682, 690
(1972) (“Due process clause of the Fifth and Fourteenth Amendments forbids a lineup that is
unnecessarily suggestive and conducive to irreparable mistaken identification.”).
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evidence found at the scene, because she was susceptible to improper suggestion by having her
mother in the room, and because the identification took place years after the crime. Although the
victim’s mother knew Abrahams when he was a child, the victim did not know him. S.A. at 100,
155. During the identification procedure, the victim was taken into a room where her mother was
not present, and was shown an array of fifteen photographs. Id. After viewing the photographs,
she identified Abrahams as the assailant. Id. In accordance with Supreme Court precedent, the
First Circuit has explained that “it is only in extraordinary cases that identification evidence
should be withheld from the jury.” United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990)
(citing United States v. Turner, 892 F.2d 11, 14 (1st Cir. 1989)); see also Manson, 432 U.S. at
116 (“Juries are not so susceptible that they cannot measure intelligently the weight of
identification testimony that has some questionable feature.”). Moreover, the First Circuit has
condoned as permissible the suggestion that the suspect is one of those shown in the array. See
Maguire, 918 F.2d at 264 (citing Turner, 892 F.2d at 14).
Here, the trial judge found that there was “nothing suggestive about the procedure”
conducted by the police, noting that the victim was told that the police had a suspect, and that the
suspect was confirmed by DNA evidence. The trial judge denied the motion to suppress the
identification evidence, and the Appeals Court affirmed. See Abrahams, 6 N.E.3d at 1098. Even
assuming that there was any evidence of improper police conduct, which the Court finds lacking,
the only factor of concern in assessing the reliability of the identification in this case is that it
took place years after the crimes. See Neil v. Biggers, 409 U.S. 188 (1972) (noting that the lapse
of seven months between the rape and the confrontation would be a serious factor in determining
the reliability of the identification). After affirming the trial court’s decision regarding the
identification evidence, the Appeals Court nevertheless went on to determine that even assuming

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there was “any error with respect to the photographic identification . . . [it] was harmless beyond
a reasonable doubt.” Abrahams, 6 N.E.3d at 1098 (“Before a ‘federal constitutional error can be
held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable
doubt’” (quoting Chapman v. California, 386 U.S. 18, 24 (1967))). Thus, Abrahams cannot
obtain federal habeas relief unless the harmlessness determination by the Appeals Court was
“objectively unreasonable” under § 2254(d). Mitchell v. Esparza, 540 U.S. 12, 18 (2003).
In this case, the Massachusetts Appeals Court decision with respect to the identification
evidence was not objectively unreasonable. On habeas review, Abrahams bears the burden of
showing that any error had a “substantial and injurious effect or influence” on determining the
jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). “[T]he Brecht standard of
review . . . is even more deferential than the ordinary standard of review under the [AEDPA].”
Connolly v. Roden, 752 F.3d 505, 506–07 (1st Cir. 2014). Abrahams has failed to show that,
even assuming any error, it had a “substantial and injurious effect or influence” on the jury’s
verdict as required to set aside his conviction. Further, the Appeals Court determined that the
evidence on the question of identity was overwhelming, based on two samples of DNA
identifying Abrahams as the assailant that night, as well as an in-court identification. See
Commonwealth v. Dixon, 938 N.E.2d 878, 881 n.7 (Mass. 2010) (“DNA evidence is both
unusually and irrefutably probative of identity.”). Abrahams has not demonstrated that the state
court’s ruling on the claim being presented in federal court was “so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fair minded disagreement.” Harrington, 562 U.S. at 103. Accordingly, the state-court decision
was neither contrary to nor an unreasonable application of clearly established federal law.

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Next, Abrahams claims a violation of the Sixth Amendment. Specifically, Abrahams
argues that the trial court’s failure to suppress the identification was in violation of the
interpretation of the confrontation clause set forth in Crawford v. Washington, 541 U.S. 36
(2004), because the “victim claimed to not know the assailant, and gave the police a sketch, then
changed it, however, the alleged victim knows the accused, and her dilatory tactics suggest she
has something to hide.” [ECF No. 19].
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. In Crawford, the Supreme Court held that out-of-court statements
that are “testimonial” by witnesses who did not appear at trial are barred under the Confrontation
Clause, unless witnesses are unavailable and defendants had a prior opportunity to cross-examine
witnesses. 541 U.S. 36 (2004). Crawford, however, does not apply here. To the extent that
Abrahams is claiming a violation of the confrontation clause regarding the victim’s statements,
the argument necessarily fails because the victim testified at trial under oath, the jury observed
her demeanor, and she was subject to extensive cross-examination regarding her testimony. See
Maryland v. Craig, 497 U.S. 836, 846 (1990) (the Sixth Amendment’s confrontation right is
satisfied by “[t]he combined effects of these elements of confrontation – physical presence, oath,
cross-examination, and observation of demeanor by the trier of fact . . . [which serve] the
purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is
reliable and subject to the rigorous adversarial testing that is the norm of [] criminal
proceedings.”). Because Abrahams had a “face-to-face meeting with witnesses against [hi]m at
trial,” id. at 844, he cannot prevail on his Sixth Amendment claim.

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Lastly, Abrahams appears to raise a sufficiency of the evidence claim in his
accompanying memorandum of law, citing Jackson v. Virginia, 443 U.S. 307 (1979). He did not
raise this claim in his application for further appellate review or in his petition for habeas relief,
however, and as such, it is unexhausted, and also can be deemed waived. See Smiley v. Maloney,
No.01-11648-GAO, 2003 WL 23327540, at *16 n.39 (D. Mass. Oct. 31, 2003), aff’d, 422 F.3d
17 (1st Cir. 2005) (“It is the petition for a writ of habeas corpus, not subsequently filed
memorandum, which defines the claim for habeas relief.”). Further, Abrahams’ Jackson claim
also fails on the merits. See 28 U.S.C. § 2254(b)(2). In Jackson v. Virginia, the Supreme Court
held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that “no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.” McDaniel v.
Brown, 558 U.S. 120, 121 (2010). Here, it is clear that a rational trier of fact could have found
the essential elements of the crimes beyond a reasonable doubt given the overwhelming evidence
supporting the convictions, consisting both of DNA and other evidence including consciousness
of guilt. Thus, Abrahams’ Jackson claim is also unavailing.
IV.

CONCLUSION
For the reasons discussed above, Abrahams’ petition for a writ of habeas corpus [ECF

No. 1] is hereby DENIED. “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to” a habeas petitioner. Rules Governing Section 2254 Cases,
R. 11(a). Because Abrahams has not made “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of
appealability here.

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SO ORDERED.
May 26, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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