Moussa v. NH State Prison, Warden
Filing
51
///ORDER granting 31 Motion for Summary Judgment on Claims 1-6, 8, and 12; granting 35 Motion for Summary Judgment on Claim 10, and granting 44 supplemental motion for summary judgment on Claims 7 and 9. The amended petition for a writ of habeas corpus 23 is denied. The court declines to issue a certificate of appealability. 4. The clerk is directed to enter judgment and close the case. So Ordered by Chief Judge Joseph N. Laplante.(cmp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Saad Moussa
v.
Civil No. 12-cv-015-JL
Warden, New Hampshire State Prison
O R D E R
Before the Court for ruling are three motions for summary
judgment (doc. nos. 31, 35, and 44) filed by respondent on
petitioner Saad Moussa’s amended habeas petition (doc. no. 23)
(“Petition”).
Moussa filed the Petition pursuant to 28 U.S.C.
§ 2254, challenging his October 8, 2008, state court convictions
on witness tampering and stalking charges and the sentences
imposed thereon.
See State v. Moussa, No. 05-S-1991-1992 (N.H.
Super. Ct., Rockingham Cnty.) (“2008 Criminal Case”).
Moussa
has responded to those motions (doc. nos. 37, 38, 45, and 47).
Background
The background set forth below has been gleaned from the
record before, and decisions of, the state courts involved in
Moussa’s trial, post-conviction litigation, and appeals.
See
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“review
under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits”).
I.
Facts Related to the Underlying Convictions
On January 19, 2005, Moussa was arrested on a stalking
charge for phoning his then-wife, Najwa Moussa (“Najwa”), in
violation of a 2004 restraining order which prohibited him from
contacting her.
Pet. 1, ECF No. 23, 1; Trial Tr. 11.
Moussa
was detained at the Rockingham County House of Corrections
(“RCHC”) pending trial.
Trial Tr. 11.
On March 26, 2005,
Moussa received a visit at the RCHC from a close family friend,
Sleiman Aziz.
Id. at 43.
During that visit, and during a
recorded phone conversation Moussa made to Aziz that evening,
Moussa pressed Aziz to call Najwa, to try to convince her to
drop the pending criminal charges and the divorce proceedings
she had initiated against Moussa.
Id. at 33, 36.
Moussa was,
at that time, subject to a court order prohibiting him from
having any contact with Najwa.
Pet. 1, ECF No. 23, 1.
Later on March 26, 2005, Aziz called Najwa.
Trial Tr. 33.
During that phone call, Aziz asked Najwa to drop the charges
against Moussa.
Id.
After receiving the phone call from Aziz,
Najwa contacted the police to report that Moussa had contacted
her through Aziz.
Id. at 34.
Moussa was subsequently charged
2
with witness tampering for attempting to induce Najwa to drop
the criminal charges against him, and stalking, for contacting
Najwa, through Aziz, in violation of a court order.
See State
v. Moussa, No. 2008-0898 (N.H. Nov. 8, 2011) (“Moussa II”), slip
op. 1-2, ECF No. 25-1, 1-2.
II.
2005 Criminal Case
On December 10, 2004, Najwa obtained a restraining order
preventing Moussa from contacting her.
Trial Tr. 29-30.
On
January 7, 2005, Moussa telephoned Najwa and left a message on
her answering machine.
Id. at 32.
On January 19, 2005, Moussa
was arrested for making that phone call and charged with felony
stalking.
Id.
As Moussa was on probation at the time of the
phone call, Moussa was also charged with violating his
probation.
See State v. Moussa, No. 05-327 (Salem Dist. Ct.)
(Jan. 26, 2005, Violation of Probation Report), ECF No. 23-2, 1;
(June 8, 2005, Adult Order of Commitment), ECF No. 23-2, 4.
On June 8, 2005, the Salem District Court found the
probation violation to be true, and sentenced Moussa to five
months in jail, with credit for the time he had served since
January 19, 2005.
See Moussa, No. 05-327 (June 8, 2005 Adult
Order of Commitment), ECF No. 23-2, 4.
Moussa was not released
in June 2005, however, as he was detained pretrial for the
3
pending felony stalking charge.
See generally State v. Moussa,
No. 05-S-900 (N.H. Super. Ct., Rockingham Cnty.) (“2005 Criminal
Case”); see also 2008 Criminal Case (State’s Assented-To Mot.
Amend filed Jan. 28, 2009), ECF No. 31-3, 51.
Moussa was convicted of stalking in the 2005 Criminal Case,
and sentenced to 3½ - 7 years in prison.
(Order Dec. 19, 2005), ECF No. 23-2, 6.
See 2005 Criminal Case
While the appeal in
that case was pending, the state moved to vacate the prison
sentence and to remand the stalking charge for resentencing as a
misdemeanor.
See State v. Moussa, No. 2006-0044 (State’s Mot.
to Vacate Sent. Filed July 7, 2008), ECF No. 27-2.
The New
Hampshire Supreme Court (“NHSC”) granted that motion.
See State
v. Moussa, No. 2006-0044 (N.H. July 23, 2008) (“Moussa I”).
On
October 6, 2008, the trial court imposed a 12-month sentence in
the 2005 Criminal Case, and credited toward that sentence time
Moussa spent in pretrial detention.
See 2005 Criminal Case
(Oct. 9, 2008 Order), ECF No. 31-3, 47.
III. 2008 Criminal Case
A.
January 23, 2008, Pretrial Status Conference
On January 23, 2008, at a status conference, Moussa,
dissatisfied with the services of the attorneys that had
represented him in his criminal cases, told the court he wished
4
to proceed pro se in the 2008 Criminal Case.
Status Conf. Tr. 12.
Moussa.
Jan. 23, 2008,
The trial court conducted a colloquy with
Id. at 12-23.
The court advised Moussa against
proceeding pro se and warned him of a number of specific dangers
of doing so.
Id. at 13-16, 19, 21-22.
When Moussa still
expressed the desire to proceed to trial pro se after the
colloquy and warnings, the court found that Moussa had
knowingly, intelligently, and voluntarily waived his right to
counsel, and invoked his right to represent himself.
See 2008
Criminal Case (Jan. 23, 2008, Order, at 2); ECF 38-4, 12.
B.
September 26, 2008, Pretrial Status Conference
At a September 26, 2008, status conference in the 2008
Criminal Case, Moussa appeared pro se.
Conf. Tr. 1.
Sept. 26, 2008, Status
At the start of the hearing, the prosecutor
advised the court that Moussa’s family had contacted an
attorney, Stephen Wight, about representing Moussa in the 2008
Criminal Case.
Id. at 3.
Wight was in the courtroom and
advised the court that he had been “retained very tangentially”
by Moussa’s family, that he had only come to court that day to
talk with Moussa, and that he would not stay in the case if he
was not going to be helpful.
Id. at 3-4.
The court advised
Wight that Moussa had elected to proceed pro se.
5
Id. at 4.
Wight, in response, stated “Yeah.
now.
Okay.
That’s fine.
Okay.
Leave it there for
I’ll just back away.”
Id.
Moussa
did not ask for Wight to represent him, did not indicate that he
wished to revoke his waiver of counsel, and did not state that
he had reconsidered his decision to represent himself.
Id. at
6-7.
In the status conference, Moussa informed the court that he
had health problems, but he did not seek relief relating to his
health.
Id. at 9.
The court advised Moussa during the status
conference that he could have Wight act as standby counsel, and
that Moussa could discuss that option with Wight, but no further
action was taken with regard to Wight representing Moussa in the
2008 Criminal Case.
Id. at 6.
Moussa participated in the
status conference pro se, and represented himself at trial
without standby counsel.
C.
See Trial Tr. 1, 178.
October 6, 2008, Pretrial Status Conference
On the morning of jury selection in the 2008 Criminal Case,
October 6, 2008, Moussa asked the judge to recuse herself,
asserting that he and the judge did not like each other, and
that the judge would hold the remand of the sentence in the 2005
Criminal Case against him in the 2008 Criminal Case.
2008, Status Conf. Tr. 3-4.
Oct. 6,
Stating that she had no animus
6
against Moussa for any reason, the judge again declined to
recuse herself.
D.
Id. at 19.
Trial and Sentencing
The evidence commenced in Moussa’s trial on October 7,
2008.
Trial Tr. 15.
Moussa chose not to attend the morning
session of the trial on that date because he disagreed with the
judge’s decision not to recuse herself in the case.
Id. at 19.
During Moussa’s absence, Najwa testified that, on March 26,
2005, she received a call from a family friend, Sleiman Aziz,
who told Najwa that Moussa had asked Aziz to call Najwa to try
to convince her to drop the charges against him and not to
testify against him.
Id. at 33.
The prosecutor played a
recording of a conversation in Arabic that had been recorded at
the RCHC, and Najwa identified the voices on the recording as
Aziz’s and Moussa’s.
Id. at 35.
Later that day, Moussa returned to the courtroom to
participate in the trial.
Id. at 56.
The state then called
Nadia Ezzat, the translator hired by the state to translate and
transcribe the March 26, 2005, phone call from Moussa to Aziz.
Id. at 57, 60.
Ezzat testified to her qualifications as a
translator and authenticated the transcript she had made of the
7
phone conversation.
Id. at 58-60.
transcript in evidence.
The court admitted Ezzat’s
Id. at 63.1
When Moussa began to cross-examine Ezzat, he attempted to
use a translation that one of his former attorneys had obtained,
and that he had used to prepare for trial.
Id. at 67-69.
The
court did not let Moussa ask Ezzat questions based on Moussa’s
transcript, stating that Ezzat had no personal knowledge of the
transcript.
Id. at 69.
Moussa objected to having to use Ezzat’s transcript for
cross-examination as he had not seen it before.
Id. at 68, 70.
The state later noted that it had sent a copy of the transcript
to Moussa’s former attorney, Evan Nappen.
Id. at 189.
Moussa
had moved pretrial for discovery and, at that time, had advised
the court and the state that he had been unable to obtain
discovery from Nappen.
Id. at 188.
Moussa’s pretrial discovery request.
The court had denied
Id. at 189; 2008 Criminal
Case (Order Apr. 17, 2008), ECF No. 31-3, 28.
At trial, Moussa told the court that he was unable to
cross-examine Ezzat with the transcript as he had not had it
before trial.
Trial Tr. at 69-70, 190.
1The
The court told Moussa
transcript prepared by Ezzat may be found in the record
in the Appendix to Defendant’s Brief filed in Moussa’s direct
appeal. See App. Def.’s Br., ECF No. 31-3, 7.
8
that he would have to use Ezzat’s transcript during crossexamination, telling Moussa: “[Y]ou need to use [Ezzat’s]
transcript, and if you can’t, we’ll have to move on.”
69.
Id. at
Moussa did not ask further questions of Ezzat or cross-
examine her about her translation.
Id. at 70.
The state then called Aziz to testify.
Id. at 71.
testified that Moussa “didn’t ask me to do nothing.”
Aziz
Id. at 83.
Aziz admitted to telling Najwa she should drop the charges and
the divorce proceedings, but stated that he did so of his own
volition.
Id. at 98.
Aziz admitted that he had given a written
statement to the police stating that Moussa had, during Aziz’s
March 26, 2005, visit to the RCHC, asked Aziz to call Najwa.
Id. at 84, 107.
The police statement was admitted in evidence
as a full exhibit.
Id. at 135.2
Moussa, on cross-examination,
attempted to place in evidence a previous statement Aziz had
made to an investigator working for one of Moussa’s previous
attorneys.
Id. at 103-05.3
The court did not allow the
2Aziz’s
written statement to the Salem Police Department may
be found in the record as an attachment to Moussa’s objection to
respondent’s motion to exceed page limit. See Pet’r’s Mot., ECF
No. 38-4.
3The
Aziz affidavits that Moussa tried to have admitted at
trial may be found in the record in the appendix to Moussa’s
brief filed in his direct appeal. See App. Def’s Br., ECF No.
31-3, 29-32.
9
statement to be admitted as a full exhibit, as it had not been
provided to the state in reciprocal discovery.
Id. at 104-05.
During the charging conference at Moussa’s trial, Moussa
objected to the introduction of the Ezzat translation in
evidence because he had not received it in pretrial discovery.
Id. at 190-91.
The court compared the Ezzat transcript with the
transcript Moussa had sought to use in cross-examining Ezzat,
found that they were similar but did contain differences, and
allowed both transcripts to be admitted in evidence.
Id. at
191-92.
On October 8, 2008, after closing arguments and jury
instructions, the jury found Moussa guilty of both charges.
at 228.
Id.
On November 14, 2008, the court sentenced Moussa to
serve 3-6 years in prison for witness tampering, and to
concurrently serve 12 months in jail on the stalking charge.
2008 Criminal Case (Order Nov. 14, 2008), ECF No. 38-4, 5.
Moussa was ultimately granted 880 days of credit toward that
sentence for time he had served prior to trial.
2008 Criminal
Case (Order Feb. 11, 2009), ECF No. 31-3, 51-52, 54.
The award
of pretrial credit represented the time Moussa had spent
incarcerated since June 19, 2006, the date on which Moussa
finished serving all of the jail time imposed for the probation
10
violation (five months) and for the 2005 Criminal Case (twelve
months).
IV.
See id.; see also Moussa, No. 2008-0806, at 1-2.
Post-Conviction Litigation
A.
Direct Appeal
Moussa, through court-appointed counsel, appealed his
convictions in the 2008 Criminal Case to the NHSC.
On November
8, 2011, the NHSC affirmed Moussa’s convictions in the 2008
Criminal Case.
B.
See Moussa II, at 1.
State Petition for a Writ of Habeas Corpus
On August 7, 2012, Moussa filed a petition for a writ of
habeas corpus in the New Hampshire Superior Court, sitting at
Merrimack County (“MCSC”), asserting eleven claims for relief
alleging substantive violations of his federal constitutional
rights.
Moussa also asserted a twelfth claim, alleging that his
appellate counsel in the 2008 Criminal Case had provided him
with ineffective assistance of counsel by failing to raise
federal constitutional claims on direct appeal concerning the
eleven substantive issues raised in his state habeas action.
See Moussa v. Gerry, No. 217-2012-cv-582 (N.H. Super. Ct.,
Merrimack Cnty. Jan. 2, 2012), ECF No. 23-5 (“MCSC Habeas
Order”).
On January 2, 2013, the MCSC denied Moussa’s state
11
habeas petition and granted the state’s motion to dismiss.
MCSC Habeas Order, at 16, ECF No. 23-5, 17.
decision.
See Notice of Appeal, ECF 23-8, 1.
See
Moussa appealed the
The NHSC declined
the appeal on June 3, 2013, see Moussa v. Warden, No. 2013-0185
(N.H. June 3, 2013), ECF No. 23-9, 1, and denied Moussa’s motion
to reconsider on August 15, 2003.
Moussa, No. 2013-0185 (N.H.
Aug. 15, 2013), ECF No. 23-9, 15.
C.
Federal Petition
Moussa filed this § 2254 habeas action in 2012, after he
had served the entire sentence imposed in the 2008 Criminal
Case, but while he remained incarcerated on a sentence imposed
to run consecutively to his 2008 Criminal Case sentence.4
On
January 17, 2014, this court identified twelve claims asserted
in the Petition.
See Doc. No. 24 (Jan. 17, 2014, Order)
(“January 17 Order”).
On November 25, 2014, this court
dismissed Claim 11 as untimely, as it related to the 2005
Criminal Case.
See Doc. No. 48 (Order).
The claims remaining
in the Petition, as numbered in the January 17 Order, are the
following:
4The
sentence Moussa was the serving, and is still serving,
was imposed on criminal charges not relevant to any issue in
this habeas action.
12
1. The trial court erred in its instruction to the jury
concerning the offense of witness tampering, in a manner that
had the effect of amending the indictment returned by the
grand jury, in violation of Moussa’s Fourteenth Amendment due
process rights.
2. The trial court erred in restricting Moussa’s crossexamination of the state’s Arabic translator at Moussa’s
trial, in violation of the Sixth Amendment right to
confrontation.
3. The trial court erred in allowing the state to introduce at
trial the state’s translation of a phone call, in violation of
Moussa’s Fourteenth Amendment due process rights.
4. The trial court erred in failing to assure that Moussa
knowingly and voluntarily waived his right to be represented
by counsel at trial, in violation of Moussa’s: (a) Sixth
Amendment right to counsel; and (b) Fourteenth Amendment due
process rights.
5. The sentencing court failed to credit Moussa with 122 days
he served in pretrial confinement, as that time had been
improperly credited toward another sentence, in violation of
Moussa’s Fourteenth Amendment due process rights.
6. The trial court erred by not subpoenaing Moussa’s witnesses
to testify at his trial, in violation of Moussa’s: (a) Sixth
Amendment right to compulsory process; and (b) Fourteenth
Amendment due process rights.
7. The trial court erred by imposing Moussa’s sentences
consecutively to previously-imposed sentences, where the
previous sentencing orders did not state that Moussa’s future
sentences were to be served consecutively to the previouslyimposed sentences, in violation of Moussa’s Fourteenth
Amendment due process rights.
8. The trial court erred in refusing to recuse itself, in
violation of Moussa’s Sixth Amendment right to a fair trial.
9. The trial court erred by denying Moussa rights accruing to
him under Miranda v. Arizona, 384 U.S. 436 (1966).
10. The trial court erred in not allowing Moussa to utilize
certain impeachment evidence at trial, in violation of
13
Moussa’s Sixth Amendment right to a fair trial and Fourteenth
Amendment right to due process.5
. . . .
12. Moussa’s appellate counsel failed to raise the federal
nature of certain of Moussa’s claims in the direct appeal of
Moussa’s conviction, in violation of his Sixth Amendment right
to the effective assistance of appellate counsel.
January 17 Order, 2-3, ECF No. 24, 2-3.
Discussion
I.
Procedurally Defaulted Claim (Claim 1)
A.
Procedural Default Standard
“A state court’s invocation of a [state] procedural rule to
deny a prisoner’s claims precludes federal review of the claims
if, among other requisites, the state rule is a nonfederal
ground adequate to support the judgment and the rule is firmly
established and consistently followed.”
S. Ct. 1309, 1316 (2012).
Martinez v. Ryan, 132
Respondent “bears the burden ‘. . .
of persuading the court that the factual and legal prerequisites
of a default . . . are present.’”
Pike v. Guarino, 492 F.3d 61,
73 (1st Cir. 2007) (citation omitted).
5The
“certain impeachment evidence” language in Claim 10
refers to the trial court’s denial of Moussa’s request to admit
the Aziz affidavits as full exhibits.
14
A federal court cannot review a procedurally defaulted
claim in a § 2254 petition, unless the petitioner demonstrates
either “actual innocence,” or “cause” and “prejudice.”
Costa v.
Hall, 673 F.3d 16, 25 (1st Cir. 2012) (citation omitted); see
also Lee v. Corsini, 777 F.3d. 46, 62 (1st Cir. 2015).
Cause
“‘ordinarily turn[s] on whether the prisoner can show that some
objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.’”
673 F.3d at 26 (citation omitted).
Costa,
To prove prejudice, a
petitioner must demonstrate that the violations of federal law
“worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.”
Id.
(internal quotation marks and citation omitted) (emphasis in
original).
B.
Claim 1 – Erroneous Jury Instruction
In Claim 1, Moussa asserts that the trial court violated
his Fourteenth Amendment due process rights by giving the jury
an instruction that amended the witness tampering indictment
returned by the grand jury.
Pet., 13; ECF No. 23, 13.
No
objection was made at trial to the erroneous instruction.
On appeal, Moussa’s appellate counsel filed a brief
challenging the jury instruction as an improper amendment of the
15
indictment, citing both state and federal constitutional law.
Def.’s Br., 7; ECF No. 31-2, 13.
Counsel further argued that
the NHSC should consider the claim, although unpreserved, for
plain error.
Def’s Br., 11; ECF No. 31-2, 17.
The NHSC applied a “plain error” standard in reviewing
Moussa’s jury instruction claim.
Moussa II, at 1-2.
Because
Moussa had not preserved the issue by a contemporaneous
objection, and the NHSC subjected the claim only to plain error
review, Claim 1 was procedurally defaulted.
See Obershaw v.
Lanman, 453 F.3d 56, 68 (1st Cir. 2006) (citing Lynch v. Ficco,
438 F.3d 35, 45 (1st Cir. 2006)).
Although Moussa reasserted
this claim in his state habeas petition, the MCSC, in addressing
the claim, left the NHSC’s decision on procedural default
undisturbed.
MCSC Habeas Order, at 2.
Accordingly, Claim 1 may
not provide grounds for relief under § 2254 unless Moussa
demonstrates that the procedural default of this claim should be
excused.
C.
Cause and Prejudice/Actual Innocence
To the extent Moussa asserts that the procedural default of
his federal jury instruction claim should be excused because it
was caused by his self-representation and his lack of legal
knowledge, the court notes that “pro se status is insufficient
16
to demonstrate cause and does not excuse procedural default.”
Leachman v. Stephens, 581 F. App’x 390, 396 (5th Cir. 2014),
cert. pet. docketed, No. 14-8765 (U.S. Mar. 15, 2015).
Further,
as further explained below in this court’s discussion of Claim
4, Moussa’s waiver of counsel was knowing, intelligent, and
voluntary.
Similarly, as explained below in this court’s
discussion of Claim 12, Moussa was not denied his Sixth
Amendment right to the effective assistance of appellate
counsel.
Accordingly, Moussa cannot rely on lack of trial
counsel or the ineffective assistance of appellate counsel as
“cause” for the procedural default of his federal jury
instruction claim.
Cf. Costa, 673 F.3d at 25 (determinations of
“cause” typically turn on whether prisoner can show that some
factor, “‘external to the defense,’” impeded his or her effort
to comply with state procedural rule (citation omitted)).
Furthermore, Moussa has not affirmatively asserted that he
is actually, factually innocent of the offenses of which he was
convicted.
Nor has he presented sufficient facts to support an
“actual innocence” claim.
See generally Pet., ECF No. 23.
these reasons, summary judgment is granted on Claim 1.
17
For
II.
Federal Claims Decided on Their Merits (Claims 2-8, 10, 12)
A.
Standard of Review
A federal court may grant habeas corpus relief “only on the
ground that [a petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.”
28
U.S.C. § 2254(a); see also Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011).
When a prisoner brings a claim in federal
court that was adjudicated on the merits in State court
proceedings,
[f]ederal habeas relief may not be granted for claims
subject to § 2254(d) unless it is shown that the
earlier state court’s decision was contrary to
federal law then clearly established in the holdings
of th[e Supreme] Court, or that it involved an
unreasonable application of such law, or that it was
based on an unreasonable determination of the facts
in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100 (2011) (internal
quotation marks and citations omitted).
A state court’s ruling is contrary to federal law
either when it adopts a rule that contradicts the
governing law set forth in the Supreme Court’s cases
or when it reaches a different result from a Supreme
Court decision under a set of facts that are
materially indistinguishable. . . . To be unreasonable
. . . the application of federal law must be more than
incorrect or erroneous. In other words, some
increment of incorrectness beyond error is required.
Finally, we only overturn state court factual
determinations that are unreasonable in light of the
record.
18
Rosenthal v. O’Brien, 713 F.3d 676, 683 (1st Cir.), cert.
denied, 134 S. Ct. 434 (2013) (internal quotation marks and
citations omitted).
The petitioner bears the burden both of
showing that the state court decision is contrary to, or
involves an unreasonable application of, established federal
law, and of rebutting the presumption of correctness of state
court factual findings by clear and convincing evidence.
See 28
U.S.C. § 2254(e)(1).
“Section 2254(d) applies even where there has been a
summary denial” of the federal claim in the state courts.
Cullen, 131 S. Ct. at 1402; see Harrington, 562 U.S. at 100
(one-sentence summary denial constituted adjudication on the
merits and § 2254(d) applied).
“When a state court rejects a
federal claim without expressly addressing that claim, a federal
habeas court must presume that the federal claim was adjudicated
on the merits.”
(2013).
Johnson v. Williams, 133 S. Ct. 1088, 1096
The presumption that a federal claim was adjudicated on
the merits is rebuttable under limited circumstances not present
here.
See id.
In cases in which the state courts have summarily denied
petitioner’s federal claims, the petitioner can satisfy the
“unreasonable application” prong of § 2254(d)(1) only “by
19
showing that ‘there was no reasonable basis’ for the [state
court]’s decision.”
Cullen, 131 S. Ct. at 1402 (quoting
Harrington, 562 U.S. at 98).
The writ may issue “in cases where
there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with [the Supreme] Court’s
precedents.”
B.
Harrington, 562 U.S. at 102.
Claim 2 – Ezzat Cross-Examination
Moussa claims that his Sixth Amendment confrontation right
was violated when the trial court denied him the ability to
fully cross-examine Ezzat concerning the contents of the
telephone call, which was a vital part of the state’s case.
Pet., 17-21, ECF No. 23, 17-21.
Specifically, Moussa claims
that he was unable to cross-examine Ezzat with the transcript
she prepared, as he had not been provided with it prior to
trial, and the court denied him the ability to cross-examine
Ezzat with a different translation that Ezzat had not seen, but
which Moussa had used in preparing for trial.
Id.
Moussa
presented this claim to the MCSC in his state habeas action, and
the MCSC summarily denied relief on the federal claim.
Habeas Order, at 4 (citing Moussa II, at 2).
20
MSCS
A defendant who is “prohibited from engaging in otherwise
appropriate cross-examination” may state a claim under the Sixth
Amendment.
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).
It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge
from imposing any limits on defense counsel’s inquiry
into the potential bias of a prosecution witness. On
the contrary, trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination.
Id. at 679.
The First Circuit has stated:
The first question to be asked under the Van Arsdall
test is whether the limitation prejudiced the
examination of that particular witness. In other
words, absent the limitation, would the jury have
received a “significantly different impression” of the
witness’s credibility? The second element of the Van
Arsdall test is whether the error was harmless beyond
a reasonable doubt; if so, reversal is not warranted.
DiBenedetto v. Hall, 272 F.3d 1, 10 (1st Cir. 2001) (internal
citations omitted).
Moussa has failed to demonstrate, either in the Petition or
in any state court filings, any particular discrepancy between
the two translations that demonstrate that the trial court’s
decision to limit his cross-examination actually prejudiced
Moussa.
Moussa has thus failed to meet his burden to
demonstrate that the MCSC’s decision was “contrary to, or
involved an unreasonable application of” federal law, or that
the factual findings upon which it relied were unreasonable in
21
light of the record before that court.
28 U.S.C. § 2254(d)(1).
Accordingly, Moussa is not entitled to habeas relief on Claim 2,
and summary judgment is granted as to that claim.
C.
Claim 3 – Admission of Ezzat Transcript
Moussa claims that his Fourteenth Amendment due process
right was violated when the trial court admitted Ezzat’s
translation transcript in evidence despite the state having
failed to provide it to Moussa in advance of trial.
28, ECF No. 23, 22-28.
Pet., 22-
Moussa presented this claim to the MCSC
in his state habeas action, and the MCSC summarily denied relief
on the federal claim.
MSCS Habeas Order, at 5 (citing Moussa
II, at 3).
The prosecution in a criminal case is required to provide,
upon request, material, exculpatory evidence to a criminal
defendant.
See Brady v. Maryland, 373 U.S. 83, 87 (1963).
That
requirement includes the provision of information that could
potentially be useful to the defendant in impeaching government
witnesses.
Giglio v. United States, 405 U.S. 150, 153-54
(1972); United States v. Ramos-González, 775 F.3d 483, 494
(2015).
To prevail on his claim regarding the state’s delayed
disclosure of the Ezzat transcript, Moussa must show that the
delayed disclosure prevented him “from using the disclosed
22
material effectively in preparing and presenting [his] case.”
United States v. Misla-Aldarondo, 478 F.3d 52, 63 (1st Cir.
2007) (internal quotation marks and citation omitted).
To make
that showing, Moussa “must at a minimum make a prima facie
showing of a plausible strategic option which the delay
foreclosed.”
Id. (internal quotation marks and citations
omitted).
Moussa has failed to demonstrate, either in the Petition or
in any state court filings, any specific “plausible strategic
option” which he was unable to employ due to the delayed
disclosure of the Ezzat affidavit.
Absent such a showing,
Moussa cannot assert a violation of his federal due process
rights created by the trial court’s admission of the latedisclosed transcript in evidence.
See United States v. Rivera
Calderon, 578 F.3d 78, 93 (1st Cir. 2009) (failure to identify
the manner in which late disclosure of evidence prevented
defense counsel from providing effective representation was
fatal to claim based on that delay).
Moussa has thus failed to
meet his burden to demonstrate that the MCSC’s decision was
“contrary to, or involved an unreasonable application of”
federal law, or that the factual findings upon which it relied
were unreasonable in light of the record before that court.
23
28
U.S.C. § 2254(d)(1).
Accordingly, Moussa is not entitled to
habeas relief on Claim 3, and summary judgment is granted as to
that claim.
D.
Claim 4 – Waiver of Right to Counsel
Moussa claims that the trial court violated his Sixth
Amendment right to counsel by failing to revisit, sua sponte,
whether Moussa still wished to represent himself, when the trial
court became aware that Moussa had been ill, and that his family
had possibly hired counsel to represent Moussa.
ECF No. 23, at 29-33.
Pet., 29-33,
Moussa presented this claim to the MCSC
in his state habeas action, and the MCSC summarily denied relief
on the federal claim.
MSCS Habeas Order, at 7 (citing Moussa
II, at 3).
Moussa did not, at the September 26, 2008, hearing or at
any other time prior to or during his trial: advise the court
that he wanted Wight to represent him, ask for court-appointed
counsel, ask for standby counsel, attempt to revoke his waiver
of counsel, or indicate in any way that he no longer wished to
represent himself.
Sept. 26, 2008, Status Conf. Tr. 7; see also
Oct. 6, 2008 Status Conf. Tr.
In Moussa’s direct appeal, the NHSC found that under state
law:
24
“[W]hen a defendant clearly and unequivocally waives his
right to counsel by exercising his right to represent
himself in a timely manner, and his waiver is knowingly and
intelligently made, the exercise of [the right to] selfrepresentation must be scrupulously respected through all
critical stages of his criminal prosecution and cannot be
revoked without affirmative action by the defendant to
rescind his waiver and reinstate his right to counsel.”
Moussa II, at 3 (quoting State v. Ayer, 150 N.H. 14, 26 (2003)).
A defendant may waive his right to counsel and represent
himself as long as he “knowingly and intelligently forgo[es the]
relinquished benefits” of the right to counsel.
Faretta v.
California, 422 U.S. 806, 835 (1975) (internal quotation marks
and citation omitted).
Moussa points to no federal case that
requires a trial court to, sua sponte, revisit the question of
whether a criminal defendant’s assertion of his right to
represent himself was knowing, intelligent, and voluntary,
absent any express or affirmative act by the defendant to revoke
his waiver of counsel, or to assert his right to counsel in his
criminal proceedings.6
6The
court finds instructive that, in the analogous
situation where a criminal defendant has previously waived his
right to court-appointed counsel, and not reasserted that right,
the Sixth Circuit has found that trial counsel has no duty to
inquire, sua sponte, whether defendant is eligible for courtappointed counsel after the defendant asserts “that he is
waiving his right to counsel for financial reasons.” United
States v. Peck, 62 F. App’x 561, 567 (6th Cir. 2003).
25
Moussa has thus failed to meet his burden to demonstrate
that the MCSC’s decision was contrary to, or involved an
unreasonable application of federal law as determined by the
Supreme Court, or that the factual findings upon which the state
court relied were unreasonable in light of the state court
record.
See 28 U.S.C. § 2254(d).
Accordingly, Moussa is not
entitled to habeas relief on Claim 4, and summary judgment is
granted as to that claim.
E.
Claims 5 and 7 - Sentencing Issues
Moussa claims that the trial court, in sentencing him,
violated his Fourteenth Amendment right to due process when it
denied him 122 days of pretrial credit, and imposed his
sentences in the 2008 Criminal Case consecutively to previouslyimposed sentences.
44.
Pet., 34-36, 41-44; ECF No. 23, 34-36, 41-
Moussa presented these claim to the MCSC in his state
habeas action.
The MCSC found that the NHSC had previously
decided these issues based on state sentencing law, and denied
relief on the federal claim.
MSCS Habeas Order, at 8, 10
(citing Moussa II, at 1-2).
This court is bound by the state court’s interpretation of
a state statute.
See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“a state court’s interpretation of state law, including one
26
announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus”); Ware v. Dickhaut, 439
F. App’x 14, 15 (1st Cir. 2011).
Errors in sentencing under
state law generally are not cognizable on federal habeas corpus
review.
See 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37,
41 (1984).
Only when the challenged state sentence is arbitrary
and capricious does the misapplication of state law violate due
process.
See Richmond v. Lewis, 506 U.S. 40, 50 (1992).
The MCSC decision concerning Moussa’s sentencing claims
rested on an interpretation of state law.
Moussa has failed to
show that the state court sentence, or the MCSC affirmance
thereof, was arbitrary and capricious, or otherwise violative of
federal law.
Moussa has thus failed to meet his burden to show
that the MCSC applied law that was contrary to, or involved the
unreasonable application of federal law, or that the court
unreasonably determined the facts, and he is not entitled to
federal habeas relief on Claims 5 and 7.
2254(d).
See 28 U.S.C. §
Summary judgment is granted, and the Petition is
denied, as to those claims.
F.
Claim 6 – Failure to Subpoena Witnesses
Moussa claims that the trial court violated his Sixth
Amendment right to compulsory process, and his Fourteenth
27
Amendment right to due process by failing to subpoena witnesses
that Moussa had identified on a witness list.
No. 23, 37-40.
Pet., 37-40, ECF
Moussa presented this claim to the MCSC in his
state habeas action, and the MCSC summarily denied relief on the
federal claim.
MSCS Habeas Order, at 9-10 (citing Moussa II, at
4).
“[A] defendant does not have a constitutional right to
receive personal instruction from the trial judge on courtroom
procedure and . . .
the Constitution [does not] require judges
to take over chores for a pro se defendant that would normally
be attended to by trained counsel as a matter of course.”
Pliler v. Ford, 542 U.S. 225, 231 (2004) (internal quotation
marks and citations omitted).
Moussa has not identified any
federal law that would support his claim that he had a right to
have the court subpoena his witnesses, absent an express request
for the court’s assistance.
Moussa has thus failed to meet his
burden to demonstrate that the MCSC’s decision denying him
relief under the federal Constitution was contrary to, or
involved an unreasonable application of federal law, or that the
factual findings upon which it relied were unreasonable in light
of the record before that court.
28
See 28 U.S.C. § 2254(d).
Accordingly, Moussa is not entitled to habeas relief on Claim 6,
and summary judgment is granted as to that claim.
G.
Claim 8 – Failure to Recuse
Moussa claims that the trial judge, in failing to recuse
herself in the 2008 Criminal Case, violated his Sixth Amendment
right to a fair trial.
Pet., 45-51; ECF No. 23, 45-51.
Moussa
complains here, as he did in the state habeas court, that the
trial judge in his 2008 Criminal Case should have recused
herself because: (1) she had made rulings with which Moussa
disagreed; (2) the sentence she originally imposed in the 2005
Criminal Case had been reversed by the NHSC; (3) at sentencing
in the 2005 Criminal Case, the trial judge, who also presided
over the 2008 Criminal Case, expressed sentiments concerning
Moussa’s behavior and attitude that Moussa interpreted as
personal distaste for Moussa; and (4) Moussa had verbally abused
the trial judge.
Id.
The MCSC found that Moussa’s assertions
failed to provide a sufficient basis to demonstrate that the
trial judge was biased against Moussa.
12.
MCSC Habeas Order, at
Further, the state court, without comment, denied relief on
Moussa’s asserted federal claim.
Id.
“[A] fair trial in a fair tribunal is a basic requirement
of due process.”
Caperton v. A.T. Massey Coal Co., 556 U.S.
29
868, 876 (2009) (internal quotation marks and citation omitted).
In order to demonstrate judicial bias warranting recusal, Moussa
must overcome a presumption of “‘honesty and integrity in those
serving as adjudicators.’”
Coley v. Bagley, 706 F.3d 741, 751
(6th Cir. 2013) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975)).
“The presumption of impartiality stems not merely from
the judicial-bias caselaw, but from the more generally
applicable presumption that judges know the law and apply it in
making their decisions, and the even more generally applicable
presumption of regularity.”
Coley, 706 F.3d at 751 (internal
quotation marks and citations omitted).
Moussa has not identified any federal law that supports his
claims that the trial court’s incorrect rulings, rulings with
which Moussa did not agree, statements at sentencing in another
case, and Moussa’s own verbal abuse of the judge, required the
judge to recuse herself in order to protect Moussa’s due process
right to a fair trial.
Moussa has thus failed to meet his
burden to demonstrate that the MCSC’s decision denying him
relief under the federal Constitution was contrary to, or
involved an unreasonable application of federal law, or that the
factual findings upon which the MCSC relied were unreasonable in
light of the record before that court.
30
See 28 U.S.C. § 2254(d).
Accordingly, Moussa is not entitled to habeas relief on Claim 8,
and summary judgment is granted as to that claim.
H.
Claim 10 – Failure to Admit Aziz Affidavits
Moussa claims that the trial court violated his Sixth
Amendment right to a fair trial and his Fourteenth Amendment
right to due process when it did not allow Moussa to admit the
Aziz affidavits in evidence, as they had not been provided to
the state in reciprocal discovery, while allowing the state to
admit the Ezzat transcript when that document had not been
provided to Moussa in discovery.
53.
Pet., 52-53, ECF No. 23, 52-
Moussa presented this claim to the MCSC in his state habeas
action, and the MCSC summarily denied relief on the federal
claim.
MSCS Habeas Order, at 14.
“An erroneous evidentiary ruling that results in a
fundamentally unfair trial may constitute a due process
violation and thus provide a basis for habeas relief.”
Brady, 666 F.3d 51, 55 (1st Cir. 2012).
Lyons v.
“However, to give rise
to habeas relief, ‘the state court's application of state law
must be so arbitrary or capricious as to constitute an
independent due process . . . violation.’”
Id. (quoting
Coningford v. Rhode Island, 640 F.3d 478, 484 (1st Cir. 2011)).
31
Moussa has not identified any federal law that would
support his claim that the trial court, in refusing to admit the
Aziz affidavits as they had not been provided to the state in
reciprocal discovery, or the MCSC’s approval thereof under state
law, amounted to a violation of Moussa’s federal due process
rights.
Moussa has thus failed to meet his burden to
demonstrate that the MCSC’s decision denying him relief was
contrary to, or involved an unreasonable application, of federal
law, or that the factual findings upon which it relied were
unreasonable in light of the record before that court.
U.S.C. § 2254(d).
See 28
Accordingly, Moussa is not entitled to habeas
relief on Claim 10, and summary judgment is granted as to that
claim.
I.
Claim 12 – Ineffective Assistance of Appellate Counsel
Moussa claims that, on direct appeal, his appellate counsel
failed to raise the federal nature of the claims asserted in
this petition as Claims 1-8, 10, and 11, in violation of his
Sixth Amendment right to the effective assistance of counsel.
Pet., 7-10, ECF No. 23, 7-10.
Moussa presented this claim to
the MCSC in his state habeas action, and the MCSC denied relief
on the federal claim.
MSCS Habeas Order, at 3-5, 7, 8, 10, 12-
14, and 16.
32
The relevant federal standard for evaluating an ineffective
assistance of appellate counsel claim like Moussa’s requires the
petitioner to show that: (1) appellate counsel’s performance in
failing to brief certain issues fell below an objective standard
of reasonableness, and (2) there is a reasonable probability
that, but for counsel’s unprofessional errors, petitioner would
have prevailed on those issues.
See Strickland v. Washington,
466 U.S. 668, 686-88 (1984); Ramirez-Burgos v. United States,
313 F.3d 23, 28 (1st Cir. 2002).
Because Moussa failed to make contemporaneous objections at
trial raising federal issues, he failed to preserve for appeal
any federal claims relating to the issues that he now claims
should have been argued by appellate counsel.7
7Moussa’s
See, e.g., State
failure to contemporaneously object to the various
issues raised in connection with Claim 12 may be found in the
record as follows: Trial Tr. 222 (Claim 12(a) concerning jury
instruction); id. at 64-70 (Claim 12(b) concerning Ezzat crossexamination); id. at 63 (Claim 12(c) concerning admission of
Ezzat transcript); Sept. 26, 2008, Status Conf. Tr. 3-6 (Claim
12(d) concerning court’s failure to sua sponte revisit waiver of
counsel); 2008 Criminal Case (Def.’s Mot. Pretrial Confinement
Credit for Time Served filed Nov. 20, 2008, ECF No. 31-3, 33-35,
and Def’s Response to Obj., Dec. 9, 2008, ECF No. 31-3, 39-40)
(Claim 12(e) concerning pretrial credit and 12(g) concerning
consecutive sentences); Trial Tr. 195-97 (Claim 12(f) concerning
witness subpoenas); Oct. 6, 2008, Status Conf. Tr. 13-19, Trial
Tr. 3-5 (Claim 12(h) concerning recusal); Trial Tr. 103-05
(Claim 12(i) concerning inability to admit Aziz affidavits in
evidence); and Oct. 6, 2008, Status Conf. Tr. 24.
33
v. Towle, No. 2013-217, 2015 N.H. LEXIS 8, at *10, 2015 WL
365694, at *7 (N.H. Jan. 29, 2015) (New Hampshire Supreme Court
generally requires “contemporaneous and specific objection” to
preserve issue for appellate review).
“Where an issue is not
preserved for appellate review, appellate counsel’s failure to
raise the issue is not constitutionally deficient as it is based
on the reasonable conclusion that the appellate court will not
hear the issue on its merits.”
Sairras v. Fla. Dep’t of Corr.,
496 F. App’x 28, 34 (11th Cir. 2012).
Accordingly, the MCSC
decision rejecting Moussa’s ineffective assistance of appellate
counsel claim is neither contrary to, nor an unreasonable
application of, the Strickland standard.
Summary judgment is
thus granted on Claim 12, and the Petition is denied as to that
claim.
III. Claim 9 – Miranda Claim
In Claim 9, Moussa asserts that his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), were violated by the trial court.
Pet., 58, ECF No. 23, 58.
claim.
The state courts never ruled on this
Accordingly, this court reviews it de novo.
See Dugas
v. Coplan, 506 F.3d 1, 7 (1st Cir. 2007).
The only discussion of the claim in the record before this
court, aside from Moussa’s unsupported assertion of a Miranda
34
violation, is in Moussa’s response to the respondent’s
supplemental motion for summary judgment on the claim.
See
Pet’r’s Mot. Resp. to Resp’t’s Supp’l Mot. Summ. J., ECF No. 45.
In that response, Moussa states that the admission of certain
jail records at trial violated his rights under Miranda.
Pet., 58, ECF No. 23, 58.
See
This court has reviewed the use of
those records at trial, see Trial Tr. 22, 43-44, and can find no
grounds upon which this court may grant relief based on Miranda
or the Fifth Amendment Self-Incrimination Clause, as none of
those records relate in any way to any statement made during a
custodial interrogation of Moussa.
Accordingly, summary
judgment is granted on Claim 9.
Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability when it enters a final order adverse to the
party.”
§ 2254 Rule 11(a).
The court will issue the
certificate “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).
28 U.S.C.
Moussa has failed to make such a showing.
Accordingly, the court declines to issue a certificate of
appealability in this case.
35
Conclusion
For the foregoing reasons, the court orders as follows:
1.
Respondent’s motion for summary judgment on Claims 1-
6, 8, and 12 (doc. no. 31), motion for summary judgment on Claim
10 (doc. no. 35), and supplemental motion for summary judgment
on Claims 7 and 9 (doc. no. 44) are granted.
2.
The amended petition for a writ of habeas corpus (doc.
no. 23) is denied.
3.
The court declines to issue a certificate of
appealability.
4.
The clerk is directed to enter judgment and close the
case.
SO ORDERED.
______________________________
Joseph N. Laplante
United States District Judge
March 30, 2015
cc:
Saad Moussa, pro se
Elizabeth C. Woodcock, Esq.
36
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