             United States Court of Appeals
                        For the First Circuit

No. 09-1020

                             TITO ABRANTE,

                        Petitioner, Appellant,

                                  v.

                   PETER ST. AMAND, SUPERINTENDENT,
                        M.C.I. CEDAR JUNCTION,

                         Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. William G. Young, U.S. District Judge]



                                Before

                          Lynch, Chief Judge,
                         Stahl, Circuit Judge,
                    and DiClerico,* District Judge.



     Victoria L. Nadel, by Appointment of the Court, for appellant.
     Anne Marie Thomas, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Lincoln S. Jalelian,
Assistant Attorney General, were on brief for appellee.



                           February 3, 2010




     *
         Of the District of New Hampshire, sitting by designation.
            STAHL, Circuit Judge.          Petitioner Tito Abrante seeks

habeas review of his 2002 Massachusetts state convictions.            The

district court orally denied Abrante's habeas petition but granted

a certificate of appealability as to all issues.            We affirm the

district court's denial of habeas relief.

                                      I.

            We relate the facts of the underlying crime as they were

found by the Massachusetts Appeals Court ("MAC"), supplemented with

other record facts that are consistent with the state court's

findings.    See Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006).

Under AEDPA, we must "'accept the state court findings of fact

unless [Abrante] convinces us, by clear and convincing evidence,

that they are in error.'"      Id. (quoting McCambridge v. Hall, 303

F.3d 24, 26 (1st Cir. 2002) (en banc)); 28 U.S.C. §§ 2254(d)(2) and

(e)(1).

            In the early morning of December 23, 2000, a series of

armed   robberies   was   committed    in    Springfield,   Massachusetts.

Abrante's nephew, Fernando Perez, robbed three victims at gunpoint

and shot and critically injured a fourth, an off-duty police

officer, while attempting to rob him.            Abrante drove Perez in

Abrante's car from robbery to robbery.          He also conceived of the

crime spree and provided Perez with a gun.

            Both Perez and Abrante were arrested for the string of

robberies.   While Abrante was in jail, he told four inmates of his


                                  -2-
involvement in the crimes.   These inmates eventually informed the

police of Abrante's admissions, and two of the inmates, Nelson

Maldonado and Jesus Tolentino, testified at Abrante's trial.1   All

four of the inmates eventually received favorable dispositions of

their cases.2

           On April 11, 2002, a Massachusetts Superior Court jury

convicted Abrante of (i) three counts of armed robbery, (ii) four

counts of use of a firearm while committing a felony, (iii) armed

assault with intent to murder, (iv) armed assault with intent to

rob, (v) assault and battery by means of a dangerous weapon, and

(vi) discharging a firearm within 500 feet of a dwelling.   The MAC

affirmed the convictions, and the Supreme Judicial Court denied

Abrante's application for further appellate review.   On April 20,

2006, Abrante filed a motion for a new trial, which the trial judge

denied without a hearing.     The MAC affirmed the trial judge's

denial of the motion, and no further appellate review was granted.

           Abrante filed his petition for habeas corpus on February

4, 2008.   On December 9, 2008, the district court held a hearing

and ruled from the bench in favor of respondent.      Abrante then




     1
      In addition, the government introduced ample corroborating
evidence of Abrante's direct involvement in the crimes at issue.
     2
      The other inmate informants were Rodolofo Melendez and Miguel
Oyola. According to Abrante, Oyola was unable to make a formal
statement because of mental competence issues.

                                -3-
filed an application for a certificate of appealability, which was

granted in its entirety.

                                        II.

              On appeal, Abrante makes the following four arguments:

(1) the state established an agency relationship with the inmate

informants in violation of Abrante's Sixth and Fourteenth Amendment

right to counsel; (2) Abrante's right to due process was violated

by    the   admission    of   inmate    informant      testimony;    (3)   Abrante

received ineffective assistance of trial counsel; and (4) the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28

U.S.C. § 2254, is unconstitutional on its face and as applied in

this case.

              We review de novo the district court's decision to grant

or deny habeas relief under AEDPA. O'Laughlin v. O'Brien, 568 F.3d

287, 298 (1st Cir. 2009) (citing Healy v. Spencer, 453 F.3d 21, 25

(1st Cir. 2006)).

              The MAC previously adjudicated Abrante's first three

federal claims. AEDPA governs these claims and specifies different

standards of review for state court conclusions of law and findings

of    fact.     Respecting     Abrante's      claims    that    challenge    legal

conclusions, we may not grant his petition for habeas relief unless

the   state    court's   decision      "was   contrary    to,   or   involved   an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States."                 28 U.S.C.



                                        -4-
§ 2254(d)(1).   As to Abrante's challenges to state court findings

of fact, habeas relief is only appropriate when the state court's

decision "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)(2).   A state court adjudication is "contrary

to" clearly established law if the court "'applies a rule that

contradicts the governing law set forth' by the Supreme Court or

'confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme Court] and nevertheless arrives at

a result different from [its] precedent.'"     Gomes v. Brady, 564

F.3d 532, 537 (1st Cir. 2009) (quoting Williams v. Taylor, 529 U.S.

362, 405-06 (2000)) (alterations in Gomes).         An unreasonable

application of clearly established federal law occurs if the state

court "identifies the correct governing legal principle from the

Supreme Court's then-current decisions but unreasonably applies

that principle to the facts of the prisoner's case."       Aspen v.

Bissonnette, 480 F.3d 571, 574 (1st Cir. 2007) (citing Horton v.

Allen, 370 F.3d 75, 80 (1st Cir. 2004)).   Given this standard, "the

state court's decision is not vulnerable unless it evinces some

increment of incorrectness beyond mere error."      Foxworth v. St.

Amand, 570 F.3d 414, 425 (1st Cir. 2009) (citing McCambridge, 303

F.3d at 36).    The state court's interpretation or application of

federal law must be "objectively unreasonable." Furr v. Brady, 440

F.3d 34, 37 (1st Cir. 2006) (citing Horton, 370 F.3d at 80).



                                -5-
                                    III.

A. Violation of Right to Counsel Claim

            Abrante first claims that the state established agency

relationships with inmate informants who then elicited admissions

from him without the presence of counsel in violation of his Sixth

and Fourteenth Amendment rights.           Abrante argues that the MAC's

finding that no agency relationship existed between the informants

and the police before the informants heard his admissions was an

unreasonable factual determination.            He also characterizes the

MAC's finding as a violation of Supreme Court precedent.                   We

disagree.

            We   first   address   Abrante's    argument   that   the   state

court's decision was based on an unreasonable determination of the

facts.   In affirming the trial court's denial of Abrante's motion

for a new trial, the MAC found that Abrante had provided no

evidence of any agreement between the inmate informants and police

that existed before the informants heard Abrante's admissions.

Commonwealth v. Abrante, No. 06-P-898, 2007 WL 4180256, 876 N.E.2d

1185, at *3 (Mass. App. Ct. Nov. 23, 2007) (table).3          Under AEDPA,

we presume these findings to be correct, and Abrante has not


     3
      The MAC appears to have been referring to all four
informants. Respondent argues that Abrante's argument applies only
to the two testifying informants, but Abrante contends that because
elicitation is the prohibited conduct that violates the Sixth
Amendment, the argument is relevant to all four inmates.         We
assume, without deciding, that the government's contact with all
four informants is properly at issue.

                                    -6-
offered      clear     and    convincing       evidence      that   would    lead    us   to

conclude that they are unreasonable in light of the evidence

presented      to     the    state    court.        28    U.S.C.    §§   2254(d)(2)       and

2254(e)(1).4

               Abrante       argues    that    Tolentino's      bail     reduction    from

$100,000 to $500 and Tolentino's subsequent disappearance5 show

that       Tolentino    had    an     agreement      with    the    police   to     provide

information against Abrante.                  The circumstances Abrante alleges,

however, do not show that any agreement existed with the police

before Tolentino heard Abrante's admissions about his crimes.

Evidence       that    Tolentino       met    with       Springfield     Police     Officer

Joselito Lozada on January 22, 2002, on matters which Abrante

concedes were unrelated to him, is not to the contrary.

               As to Maldonado, Abrante offers nothing more than the

coincidence that Maldonado was moved to Abrante's cell in November

2001, the same month that the United States Attorney declined to

prosecute Maldonado after being informed that Maldonado would be


       4
      The issue that recently concerned the Supreme Court in Wood
v. Allen, No. 08-9156, 2010 WL 173369 (Jan. 20, 2010), is not
presented by this case. Id. at *8 (electing not to resolve "how
and when" § 2254(e)(1)'s requirement that a petitioner rebut a
state court's presumptively correct factual determinations with
"clear and convincing evidence" applies in challenges to state
court findings of fact under § 2254(d)(2)). Abrante concedes in
his brief that he is obliged to establish by clear and convincing
evidence that the presumptively correct state court findings were
unreasonable.
       5
      The final notation in Tolentino's case docket indicates that
he may have been deported.

                                              -7-
prosecuted by the state. Abrante suggests that the timing of these

two events as well as the timing of Perez's trial in that same

month and subsequent police requests for information about Abrante

from Maldonado "suggests a particularly strong relationship of

agency between the state and Maldonado." This is mere speculation.

                 Abrante    also     argues    that    the   government   solicited

evidence about Abrante from Maldonado, Tolentino, and Melendez, and

that       the   MAC's     finding    that     there   was   no   solicitation   was

unreasonable.         First, we must note that the MAC did not make a

finding that there was no solicitation.                 It made no finding at all

on this point.        Rather, the court concluded that even if it were to

"assume, arguendo," that police had told the inmates that they were

seeking information about Abrante, Abrante's claim that an agency

relationship existed would still fail.                 Abrante, 2007 WL 4180256,

at *3.

                 Abrante has not offered clear and convincing evidence of

any contact between the government and the informants beyond that

described by the MAC,6 and he has similarly failed to demonstrate

       6
      Abrante's only evidence that police did anything other than
ask Maldonado and Melendez whether Abrante had already discussed
his case with them is the testimony of defense investigator Philip
Kass. Kass testified that Maldonado told him that police had told
Maldonado that they could help him with his case if he would talk
with them about Abrante. But Kass also testified that Maldonado
told him this in English, without an interpreter, even though
Maldonado indicated that he would be more comfortable with an
interpreter. This is not clear and convincing evidence sufficient
to rebut the state court's finding that there was no agreement
between the government and Maldonado before Maldonado heard
Abrante's admissions.

                                              -8-
that the MAC's legal conclusion was an unreasonable application of

clearly established federal law.       A police officer's asking an

inmate whether Abrante had already discussed his case with that

inmate does not create an agency relationship that could implicate

the Sixth Amendment.   See, e.g., United States v. Taylor, 800 F.2d

1012, 1016 (10th Cir. 1986) (holding that "[i]n the absence of any

express or implied quid pro quo underlying the relationship between

[the informant] and the Government, and in the absence of any

instructions or directions by the Government," informant was not a

government agent).

          We also reject Abrante's argument that the state court's

decision was a violation or unreasonable application of Supreme

Court precedent.     Abrante appears to argue that the state court

unreasonably applied United States v. Henry, 447 U.S. 264 (1980),

claiming that the facts of this case are analogous.   In Henry, the

Supreme Court held that the government violated the defendant's

Sixth Amendment right to counsel by soliciting a paid government

informant "to be alert to any statements made" by certain prisoners

with whom he was housed, including the defendant.      Id. at 266.

Abrante argues that "[j]ust as in Henry, inmates here, knowing what

the government sought to learn, initiated and held conversations



     As for Tolentino, there is no evidence that police approached
him about Abrante's case.    The record reflects that after his
January 2002 meeting with Officer Lozada, Tolentino "learned that
the police were looking for people to testify against [Abrante],"
but it is unclear how he came by that information.

                                 -9-
with Abrante in violation of the Sixth Amendment."                   But Abrante

neglects the fact that in this case, unlike in Henry, there is no

evidence     that     the    government     had      established   an     informant

relationship        with    the   inmates     that    pre-dated    the    inmates'

conversations with Abrante.          See id. at 270 (informant was acting

under instructions as a paid informant for the government); see

also Maine v. Moulton, 474 U.S. 159, 163, 176-77 (1985).                   Here, as

discussed above, the state court did not make such a finding, and

Abrante has not offered clear and convincing evidence to the

contrary.7

B. Due Process Claim

             Abrante next argues that his right to due process was

violated when Tolentino and Maldonado were permitted to testify

despite alleged evidence that their testimony was untruthful.                    The

MAC found that "[Abrante's] assertion that the government knew that

the   informants      committed    perjury     is     mere   conjecture    and   not

supported by the evidence."            Abrante, 2007 WL 4180256, at *3.



      7
      Abrante makes an additional argument that the appeals court
further engaged in an unreasonable application of clearly
established federal law when it "drew two diametrically opposed
conclusions: either that this was a case where the police told
inmates to 'keep their ears open' OR this was a case where the
conversations occurred prior to any contact with police."
(emphasis in original).    As discussed supra, the court did not
reach a conclusion regarding whether police told the informants
that they were seeking information about Abrante. Moreover, it is
unclear how a court could engage in an unreasonable application of
clearly established federal law merely by assuming a fact for the
sake of argument.

                                       -10-
Abrante   has    failed   to   demonstrate   that   this   conclusion   was

objectively unreasonable.

           The governing law in this area, as set forth by the

Supreme Court in Napue v. Illinois, 360 U.S. 264 (1959), is that

the government may not knowingly use false evidence, including

false testimony, to obtain a conviction.            Id. at 269.   Abrante

argues that the MAC unreasonably applied Napue, but this argument

must fail.8     Abrante engages in a series of speculations in support

of his view that Tolentino and Maldonado gave false testimony,9 but

     8
      Abrante also claims that the MAC's decision was contrary to
Arizona v. Fulminante, 499 U.S. 279 (1991), but as he has offered
no explanation as to why that case applies to these facts, we
consider this argument waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
     9
      Abrante claims that the evidence in the state court
proceedings failed to establish a trusting relationship between
Abrante and the informants, despite the fact that they were housed
in close proximity. He then states that some of the informants
spoke of a fear of Abrante and concludes, "[l]ogically, if they
feared him, they did not share his confidence and they would not
have spent time alone with him."
     Abrante also notes that none of the informants testified in
Fernando Perez's trial in November 2001. He speculates that their
failure to come forward prior to Perez's trial is an indication
that they fabricated confessions after learning that the government
wanted information about Abrante.
     Additionally, Abrante suggests that the testimony was false
because, he claims, it did not match eyewitness accounts or the
defendant's own words.
     Finally, Abrante claims that Maldonado and Tolentino's
testimony against Abrante was manufactured based on notes that
Melendez made after his first conversation with police about
Abrante. Melendez later turned these notes over to detectives.
Unlike Melendez's subsequent statement, dated February 14, 2002,
these notes, dated January 24-26, were written in Spanish, and thus
potentially readable by Tolentino and Maldonado, neither of whom
could read English.    Abrante claims that a phrase used by both
Tolentino and Maldonado at trial ("kill that cabron") came directly

                                    -11-
he offers no evidence that would lead to the conclusion that the

government knew that the testimony was allegedly false.           Thus,

Abrante has not met his burden of showing that the MAC's conclusion

was unreasonable.

          Abrante appears to make two additional arguments under

the heading of his due process claim.         First, he argues that

Tolentino and Maldonado's testimony should have been excluded

because it was significantly more prejudicial than probative and

admitting it rose to the level of a constitutional violation.

Second, Abrante notes, yet again, that the informants received

favorable treatment after providing evidence in his case.        Abrante

appears to be arguing, though he does not articulate the argument,

that the government violated his due process rights by failing to

disclose the extent of the rewards which the informants actually

obtained for their testimony.

          As to the first argument, Abrante is challenging the

application   of    a   state   evidentiary   rule,   and   in   habeas

jurisdiction, our review of such challenges is severely limited.

"To be a constitutional violation, a state evidentiary error must



from Melendez's notes.     According to Abrante, the notes were
produced in discovery, and available to Tolentino and Maldonado.
However, it is not clear from the record that either Tolentino or
Maldonado ever saw these notes.      Maldonado testified that he
neither looked at any of the paperwork from Abrante's case, nor did
Abrante read any of it to him. Tolentino testified that Abrante
showed him Melendez's "statement," but it is unclear whether he was
referring to the English statement of February 14, 2002, or the
Spanish notes of January 24-26.

                                  -12-
so infuse the trial with inflammatory prejudice that it renders a

fair trial impossible."         Petrillo v. O'Neill, 428 F.3d 41, 44 n.2

(1st Cir. 2005) (citing Subilosky v. Callahan, 689 F.2d 7, 10 (1st

Cir. 1982)). Given the probative value of Abrante's admissions, as

well as the extensive cross-examination of the informants conducted

by Abrante's trial counsel, we see little to indicate that the

informants'   testimony        so    infused   the    trial    with    inflammatory

prejudice as to render a fair trial impossible.

           As to the second argument, the MAC found that Abrante's

trial counsel extensively cross-examined the testifying informants

as to the favorable treatment that they hoped to receive in

exchange for their testimony. See Abrante, 2007 WL 4180256, at *3.

The court also found that the government did not fail to disclose

evidence of bias.       Id.     This was not an unreasonable conclusion,

and Abrante has not produced clear and convincing evidence of any

promises or rewards provided by the government to the informants

before they testified.

C. Ineffective Assistance Claim

           Abrante      next    argues     that      he   received      ineffective

assistance of counsel at trial.                The MAC rejected this claim,

stating the "[n]o ineffective assistance can arise if the trial

lawyer did not commit any errors," and then found that Abrante's

trial   counsel   was    not        ineffective      as   he   did    not   overlook

meritorious arguments.         Abrante, 2007 WL 4180256, at *4.



                                        -13-
            To prevail on an ineffective assistance claim, a criminal

defendant must demonstrate both: (1) deficiency -- that trial

counsel's      performance      "fell    below      an    objective        standard      of

reasonableness"; and (2) prejudice -- that "there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984).                 A lawyer's performance

is considered deficient "only where, given the facts known at the

time,   counsel's      choice    was    so    patently      unreasonable          that    no

competent attorney would have made it."                    Knight v. Spencer, 447

F.3d 6, 15 (1st Cir. 2006) (internal quotations omitted).

            Because Abrante's ineffective assistance claim is subject

to   AEDPA's    deferential     standard       of   review,       he   must      not    only

establish counsel's ineffectiveness under Strickland, but must also

demonstrate     that    the   state     court's       denial    of     his      claim    was

objectively unreasonable.         Abrante cannot meet this burden.

            Abrante     asserts     three      grounds      for      his       ineffective

assistance     claim:   (1)     counsel      should      have   filed      a    motion    to

suppress inmate informant testimony on Sixth Amendment grounds; (2)

counsel should have filed a motion to exclude the statements of

Tolentino      and   Maldonado     based      on    "Massachusetts             evidentiary

standard 403 and due process concerns"; and (3) counsel should have

argued "important issues related to joint venture."




                                        -14-
          Abrante does not argue the first two grounds; rather, he

refers to the previous two sections of his brief and the arguments

made therein, which we have discussed supra.   As Abrante does not

attempt to explain how counsel's failure to file either of the two

motions meets the Strickland standard for deficiency and prejudice,

we could consider the argument waived, Zannino, 895 F.2d at 17, but

in any event, our prior discussion disposes of these two issues.

          Abrante's third contention pertains to the admission of

Perez's confession at Abrante's trial as a statement in furtherance

of their joint venture.    Abrante argues that trial counsel was

ineffective for failing to "address the lack of an evidentiary

standard" for joint venturers' statements in Massachusetts when he

moved to exclude the statement.   Specifically, Abrante appears to

argue, as he did to the MAC, that once Perez's statement was

admitted as reliable, trial counsel should have challenged Perez's

reliability as a declarant.

          Notably, Abrante challenged the admission of Perez's

statement in his direct appeal, and the MAC affirmed its admission.

Commonwealth v. Abrante, No. 03-P-651, 2004 WL 2480390, 817 N.E.2d

339, at *4 (Mass. App. Ct. Nov. 4, 2004) (table).    Abrante again

challenged the admission of the statement in his collateral appeal,

specifically arguing that it lacked reliability, and the appeals

court again rejected his claim, finding that there was no need for




                               -15-
an independent showing of reliability.       Abrante, 2007 WL 4180256,

at *4.

          Abrante's counsel could not have rendered ineffective

assistance   in   failing   to    address   alleged   errors    of   state

evidentiary law that were either non-prejudicial or nonexistent.

Knight, 447 F.3d at 16.          Therefore, Abrante's counsel was not

ineffective for failing to challenge the reliability of Perez's

statement.

D. Challenge to AEDPA's Constitutionality

          Finally, Abrante argues that AEDPA violates his right to

petition the government for redress of grievances under the First

Amendment by preventing federal review of constitutional issues of

first impression decided by state courts.

          Abrante premises this argument on his claim that the

constitutional issues presented in his habeas petition are issues

of first impression.    This assertion is incorrect.           The issues

raised by Abrante fall well within the bounds of established

Supreme Court precedent, and, as we have held, "[t]he Constitution

is not offended when lower federal courts are prevented from

substituting for that of a state court their judgment as to

reasonable application of Supreme Court precedent."             Evans v.

Thompson, 518 F.3d 1, 8 (1st Cir. 2008).

          Thus, the issues Abrante raises do not present us with

the opportunity to consider his constitutional challenge to AEDPA.



                                   -16-
                                 IV.

          For the foregoing reasons, we affirm the district court's

denial of the habeas petition.

          Affirmed.




                                 -17-
