Torres v. Roden

Filing 49

District Judge Leo T. Sorokin: ORDER entered. MEMORANDUM AND ORDER.Petitioner, Felix Torres' 1 Petition for Writ of Habeas Corpus is DENIED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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FELIX TORRES,
Petitioner,
v.
GARY RODEN,
Respondent.

Civil No. 15-13598-LTS

MEMORANDUM AND ORDER ON PETITION
FOR WRIT OF HABEAS CORPUS (DOC. NO. 1)
November 13, 2017
SOROKIN, J.
Felix Torres, a prisoner at the Massachusetts Correctional Institution in Norfolk,
Massachusetts, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
asserts two claims: one related to the alleged closure of the courtroom during jury selection at his
trial, and one challenging the admission of “first complaint” evidence under Massachusetts
evidentiary rules during his trial. The respondent has opposed the petition, arguing Torres’s
claims are meritless and non-cognizable, respectively. For the reasons that follow, Torres’s
petition is DENIED.
I.

BACKGROUND
In August 2008, a Worcester County Superior Court jury convicted Torres of multiple

counts of rape and indecent assault and battery of a child. Commonwealth v. Torres, 15 N.E.3d

778, 781 (Mass. App. Ct. 2014); Doc. No. 1 at 2-3;1 S.A. at 7-8.2 He was sentenced to a term of
nine-to-twelve years’ incarceration, followed by a term of probation. Doc. No. 1 at 2; S.A. at 8.
The charges stemmed from Torres’s alleged sexual assaults of his daughter, Kim, and two of
Kim’s maternal aunts, Nina and Ann.3 Torres, 15 N.E.3d at 781. The victims first disclosed the
assaults after learning that Kim’s stepsister had been sexually abused by Kim’s maternal
grandfather. Id. at 781-82. The disclosures occurred during a family meeting held to discuss the
allegations against Kim’s grandfather; the meeting included all three victims, Kim’s mother,
Kim’s grandmother, and another of Kim’s maternal aunts. Id. After the meeting, the family
reported the allegations against Torres and Kim’s grandfather to the police.4 Id.
At trial, the Commonwealth called all three victims to testify. Id. at 781. It also
presented testimony from one “first-complaint witness” for each victim. Id. at 783. Ann
testified about her own abuse, and as the first-complaint witness for Kim; Nina’s sister testified
as the first-complaint witness for Nina; and Kim’s mother testified as the first-complaint witness
for Ann. See Doc. No. 28 at 40-42 (summarizing the relevant testimony with citations to the trial
transcript). Each victim and first-complaint witness testified, at least to some extent, about the
family meeting and the revelations of abuse made during the course thereof. Id. The trial court
gave a limiting instruction during the testimony of each of the three first-complaint witnesses.
Torres, 15 N.E.3d at 783. The first-complaint doctrine will be described in more detail below.

1

Citations to documents on the Court’s electronic docket reference the assigned docket number
and the page number appearing in the ECF header at the top of each page.
2
The respondent has filed a Supplemental Answer (cited as “S.A.”) containing the state-court
record in one bound volume. Doc. No. 30. Complete trial transcripts were filed in a separate
bound volume. Doc. No. 48.
3
The state appellate court referred to the victims using pseudonyms, which this Court adopts for
purposes of this Memorandum.
4
The cases against Torres and Kim’s grandfather were prosecuted separately.
2

Torres filed a timely notice of appeal to the Massachusetts Appeals Court (“MAC”), then,
with the assistance of new counsel, moved for a new trial in January 2011 based on an alleged
violation of his right to a public trial. S.A. at 8-9; Torres, 15 N.E.3d at 782. After a two-day
evidentiary hearing featuring testimony by Torres, two of his family members, his trial counsel,
and two court officers, the trial court denied Torres’s motion. Torres, 15 N.E.3d at 782; Doc.
No. 1-1 at 8-15. The MAC affirmed in a published decision on September 10, 2014, rejecting
Torres’s public-trial claim, his attack on the admission of first-complaint evidence, and two other
claims raised in his consolidated appeal which are not relevant here. See generally Torres, 15
N.E.3d at 782-86.
The Supreme Judicial Court declined Torres’s application for further review on
November 26, 2014. S.A. at 447. Torres did not seek certiorari in the United States Supreme
Court. He filed a timely federal habeas petition in this Court on October 19, 2015, raising the
following claims:
1)

Torres’s constitutional right to a public trial was violated during jury selection
when the public, including members of his family, were excluded from the
courtroom, and the trial court’s finding that the courtroom was open was an
unreasonable determination of the facts; and

2)

The trial court applied the Massachusetts “first complaint” doctrine in an arbitrary
and capricious manner, violating Torres’s due process rights.

Doc. No. 1 at 6, 8.5 Torres’s claims have been fully briefed and are ripe for disposition.
II.

LEGAL STANDARDS
Federal district courts may not grant a writ of habeas corpus unless they find that the state

court’s adjudication of the petitioner’s claims “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the

5

The petition included a third claim, which Torres voluntarily deleted in response to a motion to
dismiss for failure to exhaust the claim. Doc. No. 26 at 1.
3

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). In other words, state court decisions merit substantial
deference. As the Supreme Court repeatedly has emphasized, such deference results in a federal
habeas corpus standard that is “difficult to meet,” with the petitioner carrying a heavy burden of
proof. Harrington v. Richter, 562 U.S. 86, 102 (2011); accord Cullen v. Pinholster, 563 U.S.
170, 181 (2011); see Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013) (emphasizing the “formidable
barrier” faced by federal habeas petitioner where claims already were adjudicated in state court,
and limiting relief to cases of “extreme malfunctions” by state criminal justice systems).
If a state court’s decision “was reasonable, it cannot be disturbed” on habeas review.
Hardy v. Cross, 565 U.S. 65, 72 (2011) (per curiam); see Renico v. Lett, 559 U.S. 766, 779
(2010) (admonishing federal habeas courts not to “second-guess the reasonable decisions of state
courts”). When applying this strict standard, federal courts must presume that the state court’s
factual findings are correct, unless the petitioner has rebutted that presumption with clear and
convincing evidence. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340-41 (2003); accord
Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007); see Woods v. Donald, 135 S. Ct. 1372, 1376
(2015) (per curiam) (noting “federal judges are required to afford state courts due respect by
overturning their decisions only when there could be no reasonable dispute that they were
wrong”); Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007) (discussing the “separate and exacting
standard applicable to review of a state court’s factual findings”).
A state court ruling is “contrary to” clearly established Supreme Court precedent “if the
state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,”
or “if the state court confronts a set of facts that are materially indistinguishable from a decision

4

of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state court is not required to cite, or even
have an awareness of, governing Supreme Court precedents, “so long as neither the reasoning
nor the result of [its] decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); cf.
Richter, 562 U.S. at 100 (stating Ҥ 2254(d) does not require a state court to give reasons before
its decision can be deemed to have been ‘adjudicated on the merits’” and entitled to deference).
For a habeas petitioner to prevail under this exacting standard, the state court judgment
must contradict clearly established holdings of the Supreme Court, not merely law articulated by
a lower federal court, and not dicta of any court. Williams, 529 U.S. at 404-05; accord Donald,
135 S. Ct. at 1376; Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). The Supreme Court has
“repeatedly emphasized” that “circuit precedent does not constitute ‘clearly established Federal
law’” for purposes of § 2254(d)(1). Glebe v. Frost, 135 S. Ct. 429, 431 (2014); see also, e.g.,
Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (warning against using circuit precedent to “refine
or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e]
[Supreme] Court has not announced”).
A state court decision constitutes an “unreasonable application” of Supreme Court
precedent if it identifies the correct governing legal rule, but “unreasonably applies it to the facts
of the particular state prisoner’s case.” Williams, 529 U.S. at 407-08. When making the
“unreasonable application” inquiry, federal habeas courts must determine “whether the state
court’s application of clearly established federal law was objectively unreasonable.” Id. at 409.
An unreasonable application of the correct rule can include the unreasonable extension of that
rule to a new context where it should not apply, as well as an unreasonable failure to extend the
rule to a new context where it should apply. Id. at 407. It cannot, however, include a decision

5

by a state court not “to apply a specific legal rule that has not been squarely established by [the
Supreme Court].” Mirzayance, 556 U.S. at 122. “The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541
U.S. 652, 664 (2004).
A showing of clear error is not sufficient for a habeas petitioner to establish entitlement
to relief. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003); accord McCambridge v. Hall, 303
F.3d 24, 36-37 (1st Cir. 2002) (en banc). Rather, relief is available only where a state court’s
“determination was unreasonable – a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007); accord Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011); see also Cavazos
v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (emphasizing that a habeas court “may not overturn a
state court decision . . . simply because the federal court disagrees with [it]”); Richter, 562 U.S.
at 103 (requiring a petitioner to “show that the state court’s ruling . . . was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement”). Put another way, relief under § 2254 is warranted
only if a petitioner shows that the state court’s rejection of his claim was “so offensive to
existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the
universe of plausible, credible options.” Sanna v. Dipaolo, 265 F.3d 1, 13 (1st Cir. 2001)
(quotation marks omitted).
Neither of Torres’s claims entitles him to relief under these stringent standards.
III.

DISCUSSION
A.

Public Trial

In his first claim, Torres alleges that the courtroom was closed to the public when his jury
was selected, pursuant to a common practice at the time in Worcester County Superior Court and

6

in violation of his Sixth Amendment rights. Doc. No. 1 at 6; Doc. No. 28 at 13-18. He argues
that the state courts’ findings of no closure were based on an unreasonable determination of the
facts in light of the evidence presented at the evidentiary hearing on his motion for a new trial,
that closure amounted to a structural error, and that the MAC’s resulting denial of his first claim
was inconsistent with Supreme Court decisions construing the Sixth Amendment’s public-trial
guarantee. Doc. No. 28 at 12-34.
The trial court held a post-trial evidentiary hearing to explore Torres’s public-trial claim
and, after hearing testimony of six witnesses and reviewing jury pool data on file with the court,
determined as a matter of fact that the courtroom had not been closed during the selection of
Torres’s jury.6 Doc. No. 1-1 at 8, 13-14. In rejecting Torres’s public-trial claim on appeal, the
MAC described the trial court’s handling of the issue this way:
After hearing the evidence, the judge issued a thoughtful decision in which he
concluded that, notwithstanding the “culture” in Worcester County to “typically”
clear the court room for empanelment, there was also a practice of permitting
admittance during empanelment when seats were available. By comparing the
seating capacity of the court room with the number of jurors called during the
empanelment process, the judge concluded that the court room was not closed to
the public in this case. We also note that the judge discredited the defendant’s
two family members who claimed that they were excluded.
15 N.E.3d at 782.7 The MAC then exercised its “own judgment on the ultimate factual as well as
legal conclusions,” id. (quotation marks omitted), and determined that the trial court’s finding
6

Torres first raised his public-trial claim in state court in his January 2011 motion for a new trial.
S.A. at 9, 23-24. The evidentiary hearing occurred in June 2011, S.A. at 4, 118, nearly three
years after Torres’s trial.
7
The trial court found that, in this case, “there would have been some room for spectators and
that more seats would have opened up as the process progressed and jurors were excused,” and
credited testimony by court officers “that if there were available seats the public could be
allowed into the courtroom during the empanelment.” Doc. No. 1-1 at 13. There was no
evidence that the judge had ordered the courtroom closed or that i had been locked. Id. at 14.
Torres’s sister and his brother’s girlfriend testified that members of Torres’s family had been
repeatedly prevented from entering the courtroom during jury selection and during a pretrial
motion hearing. Id. at 8, 10-11. The trial court found that specific assertions about when they
7

“that the court room was not closed to the public, is amply supported by the evidence and reflects
a diligent analysis of the circumstances that lay at the heart of the defendant’s claims.” Id.
The MAC’s endorsement of the trial court’s finding as to closure was not based on an
unreasonable determination of the facts in light of the evidence presented at the evidentiary
hearing on Torres’s motion for a new trial. Torres correctly notes – and the MAC acknowledged
– that the evidence before the trial court reflected a general practice or custom in Worcester
County of closing courtrooms to the public, at least for portions of jury selection. This, however,
does not establish that Torres’s courtroom was closed during the selection of his jury. Indeed,
neither court officer who testified recalled Torres’s case specifically. S.A. at 120, 123, 142.
Portions of their testimony – those asserting that the maximum number of jurors that could fit in
a given courtroom were brought in for voir dire in serious cases and, in particular, in sexual
assault cases, and that this meant there was no room in such courtrooms for family members
during jury selection, S.A. at 120, 125-27, 142, 145-46 – could not have pertained to Torres’s
case, given the trial court’s records of the number of jurors actually called and the seating
capacity of the relevant courtroom. In light of those facts, which Torres has not challenged, and
considering the testimony of both court officers that they would have admitted members of the
public during jury selection if there were available seats in the courtroom, S.A. at 120, 123, 145,8

were present and prevented from entering were inconsistent with the times when court had been
in session. Id. at 10-11, 13-14. As a result, the trial court believed that they were “willing to say
what they believe needs to be said in order to obtain a new trial for Mr. Torres.” Id. at 13.
8
One court officer testified that he would have admitted a defendant’s family members had they
asked to enter during jury selection, assuming there were open seats, and that he would have
brought such requests to the trial judge if the same family members had asked more than once to
be admitted. S.A. at 123, 128. The other court officer testified that repeated requests by family
members seeking to enter the courtroom during jury selection were rare and would stand out in
his memory; he did not recall such requests in Torres’s case. S.A. at 149-50. Neither Torres nor
his trial counsel could provide first-hand testimony as to whether Torres’s family members were
prevented from entering during part or all of jury selection. See S.A. at 133-34 (reflecting trial
8

the MAC’s conclusion that Torres had not established closure is supported by evidence in the
record and, “even if it is debatable, . . . is not unreasonable.” Wood v. Allen, 558 U.S. 290, 301
(2010); see Torres v. Dennehy, 615 F.3d 1, 5 (1st Cir. 2010) (“While Torres presents an arguable
interpretation of the facts, the SJC found otherwise and provided adequate support for its
position. . . . Torres’[s] counter-arguments do not show that the state courts’ determination of the
facts was unreasonable.”).
Because the standards governing habeas review do not allow leeway for second-guessing
the MAC’s reasonable determination that Torres’s courtroom was not closed to the public, this
Court need not address the ancillary arguments Torres presents in support of his first claim.
Those questions – whether the state courts improperly disregarded Torres’s claim that trial
counsel was ineffective in failing to object to the alleged closure of the courtroom, Doc. No. 28
at 18-21, whether the state courts disregarded or unreasonably applied Supreme Court decisions
discussing the extent to which the public constitutionally may be excluded from pretrial
proceedings including jury selection, id. at 21-28,9 and whether the state courts inappropriately
excused a structural error based on a “culture of closure” that yielded systemic ignorance of the
law, id. at 28-34 – require resolution only if closure is found (or, more accurately here, if the

counsel’s concession that he did not know whether Torres’s family members were outside
“trying to get inside again” during jury selection).
9
To the extent Torres faults the MAC for not adequately discussing federal constitutional law or
“go[ing] beyond the bare bones of the rights articulated by the Supreme Court,” Doc. No. 28 at
25, his challenge ignores the fact that federal habeas courts may not grant relief based on such
reasoning. See Packer, 537 U.S. at 8 (emphasizing that a state-court decision is reasonable even
absent citation to or “awareness of” pertinent Supreme Court decisions, “so long as neither the
reasoning nor the result of the state-court decision contradicts them”); cf. Richter, 562 U.S. at
100 (requiring deference to state court decisions even where no reasoning at all is provided to
support a resolution of the merits of a federal claim).
9

finding of non-closure is deemed unreasonable) in the first instance. Another case might
squarely raise such questions; this case does not.10
Accordingly, Torres’s public-trial claim does not merit habeas relief.
B.

First-Complaint Evidence

Torres also challenges the admission of first-complaint evidence during his trial, arguing
it was used “in such an arbitrary and capricious manner that due process was violated and [he]
did not receive a fair trial.” Doc. No. 1 at 8. He characterizes the first-complaint testimony at
issue as “unreliable and highly prejudicial,” Doc. No. 28 at 39, “overlapping and repetitive,” id.
at 42, “prejudicial witness bolstering,” id. at 43, and “incompetent or otherwise inadmissible
hearsay,” id. at 44. In addition, he complains that defense counsel’s cross-examination of the
victims “should not have given the Commonwealth cart[e] blanche to tread all over” his
constitutional rights, id. at 42-43, and he suggests “there is no way the jury could have parsed
what testimony was to be considered for its truth with what testimony was admitted solely for
corroboration,” id. at 45-46.
The Massachusetts first-complaint rule permits testimony “by the recipient of a
complainant’s first complaint of an alleged sexual assault regarding the fact of the first complaint
and the circumstances surrounding the making of that first complaint, including details of the
complaint,” but allows jurors to consider such evidence only for “the limited purpose
of . . . determining whether to credit the complainant’s testimony about the alleged sexual

10

Even if closure were established here, it is not clear that Torres’s public-trial claim would
warrant relief. See Weaver v. Massachusetts, 137 S. Ct. 1899, 1910-12 (2017) (concluding that
“the public-trial right is important for fundamental reasons, [but] in some cases an unlawful
closure might take place and yet the trial still will be fundamentally fair from the defendant’s
standpoint,” and requiring a showing of prejudice flowing from the “structural error” of a publictrial violation where the claim is not preserved at trial, but is first raised on collateral review).
10

assault, not to prove the truth of the allegations.” Mass. Guide Evid. § 413(a). In analyzing the
application of this rule during Torres’s trial, the MAC recounted the relevant events as follows:
The Commonwealth called a first complaint witness for each victim, and the judge
gave a first complaint curative instruction for each witness. In defense counsel’s
opening and in his cross-examination of the victims, he alluded to and introduced
information that exceeded the scope of the first complaint doctrine in an effort to
establish that the victims had colluded, or been manipulated, to accuse the
defendant. For example, when cross-examining Kim, defense counsel asked
whether her aunts told her that the defendant had abused them and whether Kim
told a police officer that something came out of the defendant’s penis during one of
the assaults. In response, the Commonwealth presented evidence that exceeded the
bounds of the first complaint doctrine. Defense counsel did not object, except in
one instance.
Torres, 15 N.E.3d at 783-84. The MAC then rejected Torres’s first-complaint claim on its
merits, concluding that “the judge [had] followed first complaint protocol and [had] g[iven] the
required limiting instruction,” that Torres’s counsel had “first brought out statements that
exceeded permissible first complaint testimony” in an effort to demonstrate fabrication by the
victims, and that this “reasonable trial tactic” opened the door for the Commonwealth “to explore
the contents and the context of the statements in more detail” to rebut the attacks on the victims’
credibility. Id. at 784.
The MAC’s approval of the manner in which first-complaint evidence was used in
Torres’s trial was not contrary to, nor an unreasonable application of, the Due Process Clause or
any Supreme Court decisions construing it. “[T]he Due Process Clause does not permit the
federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules.”
Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983). Rather, “to trigger [federal habeas] relief,”
where a state court has issued a ruling construing or applying a state evidentiary rule such as the
first-complaint doctrine, “the state court’s application of state law must be ‘so arbitrary or
capricious as to constitute an independent due process . . . violation.’” Coningford v. Rhode
Island, 640 F.3d 478, 484 (1st Cir. 2011) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
11

Here, Torres has summarily asserted – but the record does not establish – that the
admission of first-complaint evidence “so infected [his] trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974); see Dowling v. United States, 493 U.S. 342, 352 (1990) (defining “the category of
infractions [arising from application of state rules of evidence] that violate fundamental fairness
very narrowly,” and finding no such violation where claim involved prior-bad-acts evidence).
Torres has cited no clearly established federal law or Supreme Court decision that prohibits – or
even addresses directly – the sort of first-complaint testimony offered during his trial.11 “The
absence of an on-point pronouncement from the Supreme Court leaves hanging by the slimmest
of threads [Torres’s] claim that the state court’s admission of the [first-complaint] evidence can
be deemed an unreasonable application of the broader fair-trial principle.” Coningford, 640 F.3d
at 485; see Rodriguez v. Roden, No. 13-cv-11807, 2014 WL 2740375, at *8 (D. Mass. June 14,
2014) (noting “the Supreme Court has not pronounced a rule specific to a state court’s admission
of . . . testimony analogous to a first complaint”).

11

The Supreme Court decisions Torres does cite are distinguishable legally and factually from
this case, are relevant only insofar as they announce very general due process principles, and
require no particular result here. See Perry v. New Hampshire, 565 U.S. 228, 232 (2012)
(regarding testimony about out-of-court identification of defendant without preliminary
reliability finding by state trial court and noting safeguards such as “right to counsel, compulsory
process to obtain defense witnesses, and the opportunity to cross-examine witnesses” generally
are sufficient to ensure due process while permitting state law to govern evidentiary matters and
juries to assess reliability of testimony); Montana v. Egelhoff, 518 U.S. 37, 43-44 (1996)
(regarding state rule barring voluntary intoxication evidence as defense to deliberate homicide);
Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding out-of-court identifications made after
suggestive confrontations); United States v. Lovasco, 431 U.S. 783 (1977) (regarding preindictment investigative delay); Bruton v. United States, 391 U.S. 123 (1968) (regarding
admission during joint trial of one defendant’s confession implicating another defendant).
12

Having reviewed the record of Torres’s trial and considered the MAC’s disposition of the
first-complaint claim, this Court reaches the same conclusion the First Circuit did when
confronting a similar federal claim arising from the admission of prior-bad-acts evidence:
Because the Supreme Court has not laid down a governing rule anent the admission
of [the challenged category of] evidence, the broader fair-trial principle is the
beacon by which we must steer. We need not linger long over this point; it is noseon-the-face plain that the state court’s approval of the introduction of the
[challenged] evidence in this case, whether or not an unarguably correct evidentiary
ruling, was well within the universe of plausible evidentiary rulings. It was,
therefore, not so arbitrary or capricious as to work a denial of the petitioner’s
constitutionally secured fair-trial right.
Coningford, 640 F.3d at 485. Because Torres has not established an “extreme malfunction” of
the justice system, Titlow, 134 S. Ct. at 16, his second claim fails.12
IV.

CONCLUSION
Because his claims are meritless, Torres’s habeas petition is DENIED.13
SO ORDERED.
/s/ Leo T. Sorokin
United States District Judge

12

To the extent Torres complains that the trial court allowed testimony beyond the bounds of the
first-complaint rule, such a claim is not cognizable on federal habeas review. See Swarthout v.
Cooke, 562 U.S. 216, 219 (2011) (emphasizing that “federal habeas relief is [not] available for
an error of state law”). To the extent he challenges the Massachusetts first-complaint rule as a
general matter, see Doc. No. 28 at 35 (suggesting such testimony is not permitted against most
defendants), the Massachusetts state-court decisions upholding and construing the rule, see id. at
35 & n.15 (arguing such decisions were based “on flawed and outdated research”), or the trial
court’s limiting instructions regarding the first-complaint evidence here, see id. at 42 (calling the
instructions “inconsistent and likely confusing to the jury”), those issues are not properly before
this Court because Torres failed to include them among the legal and factual bases for this claim
in state court. S.A. at 60-65, 382-85, 405-08, 419-22; see Adelson v. DiPaola, 131 F.3d 259, 262
(1st Cir. 1997) (requiring a habeas petitioner to “fairly and recognizably present[] to the state
courts the factual and legal bases of [a] federal claim”).
13
As “reasonable jurists” could not “debate whether . . . the petition should have been resolved
in a different manner,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), no certificate of
appealability shall issue. The MAC’s evaluation of Torres’s public-trial claim was based on a
reasonable interpretation of the relevant evidence and was consistent with federal law. To the
extent his second claim asserts a cognizable federal challenge, there is no legal or factual support
for finding the admission of first-complaint evidence undermined the reliability of Torres’s trial.
13