REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

JUDITH GAIL DEIN, Magistrate Judge.

I. INTRODUCTION

James F. Corcoran has brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on October 22, 2008 for breaking and entering a building in the daytime in order to commit a felony, in violation of Mass. Gen. Laws ch. 266, § 18. He was subsequently determined to be a career offender, and sentenced to 10 years of incarceration. Corcoran's conviction, and the denial of his motion for a new trial and renewed motion for a new trial, were affirmed by the Massachusetts Appeals Court in an unpublished opinion on November 19, 2010. Commonwealth v. Corcoran, 78 Mass.App.Ct. 1110, 937 N.E.2d 522 (table), No. 09-P-494, 2010 WL 4676187 (Mass. App. Ct. Nov. 19, 2010).1

In his habeas petition, Corcoran asserts that "[t]he pre-trial identification of the defendant was inherently and impermissibly suggestive in violation of the defendant's due process rights[.]" (Pet. (Docket No. 3) at Ground One). In his memorandum in support of his petition (Docket No. 18-1), Corcoran argues that the findings of fact made by the motion judge in denying his pre-trial motion to suppress were clearly erroneous, as they were based on testimony about the witness's opportunity to observe the perpetrator that was allegedly dispelled at trial. In addition, he challenges the state trial and appellate courts' rulings, which he contends failed to allow for the reconsideration of the denial of the motion to suppress despite new evidence.

For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the habeas petition be DENIED. Corcoran has failed to establish that the state court decisions refusing to suppress the out-of-court identifications were contrary to or an unreasonable application of Federal law, even accepting his interpretation of the trial testimony as being true. Furthermore, Corcoran's contention that Massachusetts law precludes the consideration of new evidence in connection with a motion to suppress is not supported by the law or the factual record of this case. Rather, the evidence developed at Corcoran's trial relative to his motion to suppress was considered by the state courts in connection with his motion for a new trial and renewed motion for a new trial.

II. STATEMENT OF FACTS2

Prior Proceedings

Corcoran was indicted on August 7, 2007 by a Middlesex County grand jury for breaking and entering in the daytime with intent to commit a felony, in violation of Mass. Gen. Laws ch. 266, § 18. (SA 3, 8). He was also charged as an habitual offender in violation of Mass. Gen. Laws ch. 279, § 25. (Id. at 3). Following a jury trial, he was convicted on October 22, 2008 of the breaking and entering charge. (Id. at 5). Corcoran then waived a jury trial on the habitual offender charge and, after a separate jury-waived trial, was convicted on October 31, 2008 of being an habitual offender. (Id.). He was sentenced to 10 years of imprisonment. (Id.). Corcoran filed a timely appeal.

Prior to trial, Corcoran filed a motion to suppress the out of court identification made by an eye witness, Kellie Quinn, on the grounds that it was "the product of a constitutionally impermissible suggestive photographic identification procedure." (SA 123). A hearing was held before Sandra L. Hamlin, Justice of the Superior Court, on February 14, 2008. (SA 379). Framingham Police Officer Stacy Macaudda, who responded to the call reporting a break-in, and Detective Lawrence Hendry, who investigated the crime, testified. (SA 382, 425). Following the hearing, Judge Hamlin issued written "Findings of Fact, Rulings of Law and Order on Defendant's Motion to Suppress Photographic Identification" and denied the motion to suppress. (SA 128-37). As detailed infra, one of the three girls who reported the break-in, presumably Kellie Quinn, had identified Corcoran at the time of the incident when his Registry of Motor Vehicles' photograph appeared on Officer Macaudda's cruiser's computer screen while she was running potential license plates of the vehicle in which the intruder had left the scene. (SA 135). Hours later, the same photograph was included in an eight person photo array, at which time Kellie again picked Corcoran's picture. Corcoran contends that Kellie was, in fact, simply identifying the same photograph she had seen previously. In rejecting this argument, Judge Hamlin found, inter alia, that Kellie had had two opportunities to view the defendant before making any identification, and that her identification at the time of the initial viewing was definitive.

Corcoran contends that Kellie's trial testimony established that she did not, in fact, have the opportunity to observe the defendant before identifying his photograph, and that her pre-trial identification was not as definitive as the Judge had found. After obtaining a stay of his appeal so that he could pursue this issue, on May 20, 2009, Corcoran filed a motion for a new trial in Middlesex Superior Court. (SA 54, 7). Therein, he claimed that defense counsel was ineffective for failing to move for reconsideration of the suppression motion, and for failing to call witnesses to testify at the suppression hearing. (See SA 138, 142). The trial judge denied the motion for a new trial, and Corcoran appealed. (SA 7, 151-163). On November 17, 2009, Corcoran filed a renewed motion for a new trial to be heard by the motion judge, Judge Hamlin. (SA 165). Judge Hamlin promptly denied the motion and Corcoran appealed. (SA 8).

The Massachusetts Appeals court, in an unpublished memorandum and order pursuant to Rule 1:28, affirmed Corcoran's convictions and the orders denying his motions for a new trial. Corcoran, 2010 WL 4676187. He then filed an application for leave to obtain further appellate review with the Massachusetts Supreme Judicial Court. This petition was denied on February 9, 2011. (SA 377). See Commonwealth v. Corcoran, 459 Mass. 1101, 942 N.E.2d 182 (table) (2011). This timely habeas petition followed.

Facts Developed at the Suppression Hearing

As noted above, Officer Macaudda and Detective Hendry of the Framingham Police, testified at the hearing on Corcoran's motion to suppress. Briefly, Judge Hamlin made the following findings of fact.

On June 14, 2007, Framingham Police Officer Stacy Macaudda was on patrol when she received a radio call around 10:00 a.m. for a report of suspicious activity at a home in Framingham. (SA 128). Upon her arrival, three teenage girls were waiting in front of the house: Kellie Quinn, Chelsea W. and Ariel S.3 (SA 128-29). Chelsea, who lived at the house, told Officer Macaudda that when she came home from school with her friends she noticed an unfamiliar pickup truck in her driveway. (SA 129). The truck was older, and bluish gray in color. (Id.). Chelsea and her friends went into the home through the basement door, and she called out "Hello, Hello," because she knew her two sisters were sleeping upstairs. (Id.). Chelsea heard footsteps upstairs which were moving fast. (Id.). The girls were spooked and started back toward the basement door when they saw through the glass top of the basement door they had entered a male leaving the home, walk down the driveway, get into the pickup truck and drive away. (Id.). One of the girls entered the license plate of the truck into her cell phone, which she recorded as 14K483. (Id.). The man was described to Officer Macaudda as a white male, approximately 50 years old, 6 feet tall, greyish hair and a moustache, wearing khaki shorts and a striped polo shirt. (Id.). The girls were very excited and surprised someone was in the house. (Id.). Officer Macaudda checked the home to make sure everyone was safe, and that there were no other intruders inside. (Id.).

Officer Macaudda knew that the license plate number the girls had given her was not the usual combination in Massachusetts, except if it was a vanity plate. (Id.). Usually there were two letters in the middle. (Id.). Consequently, Officer Macaudda asked the girls if they were sure, or if there could be other options. (Id.). One of the girls gave her some options, but Officer Macaudda did not know which of the girls did so. (Id.).

Judge Hamlin described the subsequent events as follows. Since they form the crux of Corcoran's habeas petition, they will be quoted in full:

(SA 129-31).

Officer Macaauda testified further that the three girls were all talking to her about what had happened, the description of the man and the license plate. (SA 131). She had no memory of which girl said what specifically. (Id.). The girls were going with their class to Six Flags for an end of the school year outing, so no further identification was made at that time. (Id.).

In accordance with their usual procedure, the case was taken over by Framingham Police Detective Lawrence Hendry, who did not discuss the case with Officer Macaudda. (Id.). During his evening shift, at around 8:30 p.m., Officer Hendry spoke to each of the three girls separately and asked them to come down to the police station, which they did. (Id.). Officer Hendry testified that he interviewed Kellie Quinn first. Since this testimony is critical to Corcoran's habeas petition, Judge Hamlin's findings about this testimony will be quoted in full herein.

(SA 131-34 (footnote omitted)). Judge Hamlin then made the following findings which Corcoran contends are inconsistent with Kellie's trial testimony:

(SA 134-35).

In ruling on the motion to suppress, Judge Hamlin cited to Commonwealth v. Martin, 447 Mass. 274, 279-80 (2006), and ruled that "[i]n order to suppress the identification, Corcoran must show by a preponderance of the evidence, in light of the totality of the circumstances, that identification was so unnecessarily or impermissibly suggestive and conducive to irreparable misidentification as to deny him due process of law." (SA 135). She rejected Corcoran's contention that the viewing of his photograph on Officer Macaudda's cruiser's computer screen was an impermissibly suggestive one-on-one identification, citing to the fact that the Officer had entered several license plates on the computer before the identification, and the witness spontaneously identified Corcoran only after several other images had been displayed on the computer. (Id.). In addition, Judge Hamlin relied on the fact that the Officer "was not conducting any photographic identification or show up procedure[,]" and that any viewing of the defendant's photograph by the witness was "accidental." (Id.). Judge Hamlin also found it significant that the investigation of the potential license plates had begun only minutes after the event occurred, and there was not time to assemble an array for the witness to view without running the risk that other images would distract the witness. (SA 135-36). Finally, Judge Hamlin ruled that the photographic array at the police station "was fair and not impermissibly suggestive." (SA 136). Not only did Officer Hendry review the checklist form, but the array also "contained eight black and white photographs of similarly looking individuals, each photograph was similar in shape and size, and Corcoran's picture did not stand out from the others." (Id.). Kellie selected the photo, according to Judge Hamlin, "without any outside influence[.]" (Id.). Under such circumstances, Judge Hamlin ruled that Corcoran "has failed to show by a preponderance of the evidence that either the accidental confrontation or photographic array was so impermissibly suggestive as to give rise to any likelihood of misidentification or any suggestiveness that would violate due process." (SA 136-137).

Kellie's Trial Testimony

Corcoran contends that Kellie's trial testimony contradicts Judge Hamlin's findings and that the judge's findings were clearly wrong. As detailed herein, however, any differences do not warrant the suppression of the photo identification.

Corcoran first challenges Judge Hamlin's conclusion that the witness's viewing of Corcoran's image at the scene was "accidental." (Pet. Mem. at 16). In support of his contention, he cites to trial testimony to the effect that the witnesses knew that the officer was going to try and "trace the license plate number Chelsea had seen" and that the girls stood by the cruiser watching the officer trying to find a vehicle with a plate matching the one the witnesses had seen, and then bringing up the Registry of Motor Vehicles license photographs. (Id.). Thus, Corcoran argues, "[t]he factual conclusion that the confrontation was accidental was simply wrong. The confrontation was caused by the officer searching for a suspect with the aid of the eyewitnesses and allowing them to watch over her shoulder as she displayed photographs on her laptop." (Id.).

Corcoran also challenges Judge Hamlin's factual finding that Kellie had two opportunities to view the intruder before she identified the photograph. (Pet. Mem. at 17). Thus, he cites to Kellie's trial testimony to the effect that she did not see the man "front on," and only saw a "side profile view" of him through the basement window for "a second." (Id.; SA 657, 671-73). She also testified that she didn't go "all of the way over to the window" despite the judge's finding to the contrary. (SA 674). Rather, according to the trial testimony, Chelsea went to the window and Kellie put the numbers Chelsea called out into her phone. (Id.).

Corcoran also challenges the motion judge's finding that Kellie identified the photograph of the defendant at the scene by saying "that's him, his hair is shorter but that's him." (Pet. Mem. at 18; SA 130). At trial, Kellie testified that she had said "it could have been the man that had walked by the house, but I did not see him front on, so there was no way for me to be a hundred percent sure." (SA 657).

Corcoran also cites to Kellie's testimony regarding whether she had selected anyone from a photo array. (Pet. Mem. at 9). First she testified that she "recognized the same person I had seen on the police cruiser's screen which I said —." (SA 660). After objection by defense counsel, she testified that she selected from the photo array "[t]he man I had seen walking along Chelsea's house, and getting into the truck." (SA 661).

Finally, at trial Kellie was asked if "the individual you think you saw walking by the door and the windows on June 14, 2007, while you were at Chelsea Watson's home" was in the courtroom. (SA 670). Kellie testified that she "cannot be sure if I see that person in the courtroom today[,]" but identified Corcoran as someone who "resembles that person[.]" (Id.).

Motion for a New Trial

Following his conviction, Corcoran filed a motion for a new trial arguing ineffective assistance of counsel based on counsel's failure to present evidence at the hearing on his motion to suppress, and counsel's failure to renew the motion to suppress during trial. (See SA 142). The trial judge denied the motion, issuing a "Memorandum of Decision on Defendant's Motion for New Trial." (SA 152-63). After reviewing Judge Hamlin's findings and the discrepancies on which Corcoran relied,4 the trial judge concluded that the differences were "not so strongly material as suggested by the defendant." (SA 162). Rather, according to the trial judge, it "does not appear to be the sort of evidence which would have altered the conclusion reached by the motion judge in denying the motion to suppress." (Id.).

Further, the trial judge concluded that it was not ineffective assistance of counsel not to have called Kellie as a witness at the suppression hearing. As he concluded, having Kellie testify would have given her "a `dry-run' in a court room setting of testimony which related to the events of the day of the break-in, and most especially to her identification. Her testimony would be taking place at a point in time, nearer to the date of the incident than the trial, when her memory of events might be fresher. Calling her at that hearing would present the more than plausible prospect of firming up a confirmation of the identification of the defendant which she had made at the police station at the time of the photo array presentation." (SA 159). In fact, as the trial judge noted, it was a logical strategy given Kellie's uncertain identification at trial, which allowed trial counsel to argue "that reasonable doubt existed as to the identity of the defendant as the perpetrator." (SA 160).

The Renewed Motion for a New Trial

Corcoran appealed from the denial of his motion for a new trial, and filed a renewed motion for a new trial with the motion judge. (SA 165). According to Corcoran, such reconsideration was necessary to place all of the facts regarding the identification before the Appeals Court. (Id.). Judge Hamlin denied the motion by way of a docket entry, citing without discussion Commonwealth v. Pagan, 73 Mass.App.Ct. 369, 374-76 (2008), and Commonwealth v. Grandison, 433 Mass. 135, 137, 741 N.E.2d 25, 29 (2001). (SA 8). In Pagan, there was a lengthy discussion recognizing a judge's power to reconsider a ruling on a motion to suppress. In Grandison, the court recognized that the denial of a motion to suppress "implies resolution of factual issues in favor of the Commonwealth." (Quotation and citation omitted).5

The Appeals Court Decision

The Massachusetts Appeals Court addressed Corcoran's direct appeal as well as his appeal from the denial of his renewed motion for a new trial in a single unpublished decision. Corcoran, 2010 WL 4676187. With respect to Corcoran's challenge to the motion judge's denial of his motion to suppress, the court recognized that Corcoran was challenging the motion judge's findings of fact based on his contention "that trial testimony by witnesses (who did not testify at the suppression hearing) differed or contradicted that which had been offered at the suppression hearing." Id. at *1. Such an objection, however, was "impermissible" since, "[w]hen `reviewing a judge's ruling on a motion to suppress, an appellate court `may not rely on the facts as developed at trial' even where the testimony differed materially from that given at trial.'" Id., (quoting Grandison, 433 Mass. at 137, 741 N.E. 2d at 29-30) (additional citations omitted). Moreover, the Appeals Court concluded, Corcoran's "impermissibly claimed factual disparities in suppression hearing findings and trial testimony do not establish that his identification was the product of improper suggestion by the police." Id.

In connection with his appeal from the denial of his renewed motion for a new trial, the Appeals Court again held that "the defendant impermissibly relies on trial testimony to support his claim that the motion judge was wrong." Id. However, the Appeals Court went on to address the merits of Corcoran's claim. Even accepting, arguendo, Corcoran's argument that Kellie did not have two adequate opportunities to observe the suspect, the Appeals Court nevertheless concluded that suppression was not appropriate. As the court ruled,

Id.

Finally, the Appeals Court rejected Corcoran's contention that counsel was ineffective for failing to call eyewitnesses to testify at the suppression hearing, or to move for reconsideration of the denial of the motion to suppress. Id. at *2. As an initial matter, the court found that Corcoran had failed to establish that the decision was not a strategic one as opposed to a "manifestly unreasonable" one. Id. Thus, the court explained, "counsel could very well have concluded that calling Quinn, who later testified at trial that she identified the defendant in a photographic array, would not have been helpful. This is especially true where Quinn also identified what turned out to be defendant's truck that she saw in the driveway that morning." Id. The court also found that Corcoran had failed to establish any prejudice by the absence of eyewitness testimony at the suppression hearing, given that Quinn's testimony would undoubtedly have been the same at the suppression hearing as it was at trial, and Corcoran was "not deprived of a substantial ground of defense." Id.

Finally, the Appeals Court concluded that there was "more than sufficient" evidence to sustain the conviction. As the court explained:

Id. Therefore, the Appeals Court sustained Corcoran's conviction.

Additional facts will be provided below where appropriate.

III. ANALYSIS

A. Standard of Review

The standard of review to be applied to Corcoran's habeas corpus petition is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The standard allows a federal court to grant a writ of habeas corpus only if the underlying state court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In undertaking this analysis, "a habeas court must determine what arguments or theories supported the state court's decision, and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Wetzel v. Lambert, 132 S.Ct. 1195, 1198, 182 L. Ed. 2d 35 (2012) (quoting Harrington v. Richter, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (internal punctuation omitted)). Moreover, "[i]n this context, `clearly established law' signifies `the holdings, as opposed to the dicta'" of the Supreme Court decisions. Howes v. Fields, 132 S.Ct. 1181, 1187, 182 L. Ed. 2d 17 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000)).

A writ of habeas corpus is only appropriate "under the `contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L. Ed. 2d 914 (2002). By contrast, relief is proper "under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from [the Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. An unreasonable application is more than just error, entailing "some increment of incorrectness beyond error[.]" McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (internal quotation and citation omitted); accord Bell, 535 U.S. at 694, 122 S. Ct. at 1850. The "increment of incorrectness beyond error" "must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011) (quoting McCambridge, 303 F.3d at 36).

With respect to factual findings, "the AEDPA sets out a separate and exacting standard applicable to review of a state court's factual findings." Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007) (citing, inter alia, 28 U.S.C. § 2254(e)(1)). Thus, there is a presumption that factual findings by the state court are correct, and the habeas court must defer to such findings. Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir. 2001). "[A] habeas petitioner can rebut this presumption by adducing `clear and convincing evidence'" that convinces the habeas court "that the underlying state court's adjudication `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)(2)." Id.; see also Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007) (petitioner bears the burden of overcoming the presumption of correctness by providing `clear and convincing evidence' of the error).

Finally, a writ of habeas corpus does not lie for errors of state law. "Federal habeas is not an ordinary error-correcting writ." Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). Rather, it "exists to rescue those in custody from the failure to apply federal rights, correctly or at all." Id. Thus, habeas relief is only available if a prisoner "is in custody in violation of the Constitution or laws or treaties of the United States"; it "does not lie for errors of state law." Swarthout v. Cooke, 131 S.Ct. 859, 861, 178 L. Ed. 2d 732 (2011) (internal quotations and citations omitted).

Applying these principles to the instant case compels the conclusion that the petition for a writ of habeas corpus should be denied.

B. Deference to State Court Decisions

As an initial matter, Corcoran argues that this court should not defer to the state court rulings on his motion to suppress and his renewed motion for a new trial,6 but, rather, should consider his arguments de novo. As he asserts, given "the failure of the Massachusetts Appeals Court to address, much less analyze, the federal constitutional claims made by petitioner and supported by United States Supreme Court case citations, as well as by case law citations applying Supreme Court precedent, this court's consideration of the constitutional claims should be considered de novo." (Pet. Mem. at 13). This court disagrees. In contrast to Corcoran's assertions, the record establishes that the state courts did adjudicate Corcoran's constitutional issues.

Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus "shall not be granted with respect to any claim that was adjudicated on the merits in State Court proceedings" unless the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, or (2) was based on an unreasonable determination of the facts. Thus, "[b]y its terms § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131 S.Ct. 770, 784, 178 L. Ed. 2d 624 (2011). It is well established that "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning[,]" and "a state court need not cite or even be aware of [Supreme Court] cases under § 2254(d)." Id. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-85; see also Lyons v. Brady, 666 F.3d 51, 54 (1st Cir. 2012) (where petitioner raised constitutional argument and state court found "no merit" in the allegations of error, state court is deemed to have adjudicated the constitutional claim and its decision is subject to deferential review).

In the instant case, as Corcoran argues, there is no question that he presented his constitutional claim to the State courts. It is well established "that a state court may decide a federal constitutional claim `by reference to state court decisions dealing with federal constitutional issues.'" Hodge v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013) (quoting DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001)). Here, the Appeals Court cited Commonwealth v. Watson, 455 Mass. 246, 915 N.E.2d 1052 (2009), which addressed a constitutional challenge to a photographic identification. See Corcoran, 2010 WL 4676187 at *1. As the Watson court held, "[f]or a motion to suppress a photographic identification to succeed, `the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law.'" Watson, 455 Mass. at 250, 915 N.E.2d at 1052 (quoting Commonwealth v. Miles, 420 Mass. 67, 77, 648 N.E.2d 719 (1995) (additional citations omitted)). In addition, the motion judge cited to Commonwealth v. Martin, 447 Mass. 274, 850 N.E.2d 555 (2006) in which the Supreme Judicial Court held that "[i]t is the defendant's burden to prove by a preponderance of the evidence that the showup was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny him due process of law." Id. at 279-80, 850 N.E.2d at 560-61 (internal punctuation and citations omitted). Thus, the record is clear that the state courts addressed Corcoran's constitutional arguments, and a deferential standard of review is appropriate. See Clements v. Clarke, 592 F.3d 45, 55-56 (1st Cir. 2010) ("When a state court has truly avoided (or merely overlooked) the petitioner's federal claim, a federal court may step into the breach and review de novo. But judicial opacity is a far cry from judicial avoidance. It is the result to which we owe deference, not the opinion expounding it.").

C. The Scope of the Factual Record

Corcoran also contends that the denial of his motion to suppress 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). However, he does not dispute that Judge Hamlin's pre-trial findings of fact were based on the testimony of Officer Macaudda and Detective Hendry at the suppression hearing. (See SA 262-69 (Commonwealth's brief to the Appeals Court citing to testimony at the suppression hearing)). Thus, there is no support for any claim that the motion judge made findings that were not supported by the record before her.

Corcoran argues further, however, that Kellie's trial testimony rendered the facts on which the motion judge relied inaccurate, and that the state courts failed to consider the testimony as developed at trial. (Pet. Mem. at 20). This assertion also is not supported by the record. Rather, the record is clear that the trial judge, the motion judge and the Massachusetts Appeals Court all considered the pre-trial identifications of Corcoran by Kellie in light of her trial testimony — they simply did not find the discrepancies between her trial testimony and the testimony at the suppression hearing to be so significant as to require that the pre-trial identifications be suppressed. (See SA 161-62 (in denying motion for a new trial, trial judge finds that the differences were not as great as Corcoran suggests); SA 8 (in docket entry denying renewed motion for a new trial, motion judge cites Pagan, 73 Mass. App. Ct. at 374-76, 897 N.E.2d at 1255-56, in which the court recognized trial judge's authority to reconsider a ruling on a motion to suppress)). Corcoran, 2010 WL 4676187, at*1 (upholding denial of motion to suppress even accepting Corcoran's argument that Kellie "did not have two adequate opportunities to observe the suspect"). Consequently, there is no factual support for Corcoran's argument that the findings of fact on which the state courts relied were clearly erronous.7

Similarly unsupportable is Corcoran's contention that Massachusetts law does not provide for the reconsideration of a motion to suppress if new facts are developed at trial. (See Pet. Mem. at 15 (by her refusal to consider trial testimony, "the hearing judge prevented any sort of appellate review of the identification process which resulted in a denial of due process under the Fourteenth Amendment")). Admittedly, under Massachusetts law, in reviewing a motion judge's ruling on a motion to suppress, the appellate court considers only the evidence before the motion judge, not the evidence presented at trial. Commonwealth v. Escalera, 462 Mass. 636, 648-49, 970 N.E.2d 319, 329 (2012) (citing Grandison, 433 Mass. at 137, 741 N.E.2d at 29-30). This does not, however, preclude any consideration of trial testimony which differs from testimony at the pre-trial motion stage. Rather, under Massachusetts law, "[a] motion for a new trial under rule 30(b) may include a request to reconsider a ruling on a motion to suppress evidence." Commonwealth v. Rodriguez, 443 Mass. 707, 709, 823 N.E.2d 1256, 1259 (2005). This is the procedure that was followed in Corcoran's case. Thus, there is no factual or legal support for Corcoran's argument that the state courts failed to consider all relevant facts in refusing to suppress the out-of-court identifications.

D. The Pre-Trial Identification Procedures

In the instant case, the parties agree that the standard to be applied is defined by a line of cases decided by the United States Supreme Court culminating in Manson v. Brathwaite, 432 U.S. 98, 110, 113, 114, 97 S.Ct. 2243, 53 L. Ed. 2d 140 (1977). As has been explained:

Should a court find that the identification was not suggestive, the court's due process inquiry ends. Should a court find that the identification was impermissibly suggestive, however, the court's analysis advances to the second prong of the Simmons two-prong test that looks to the reliability of the challenged identification. See id. at 385-86, 88 S.Ct. 967. See also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L. Ed. 2d 401 (1972). Factors to consider when judging the reliability, nevertheless, of a suggestive identification are:

Edwards v. Murphy, 96 F.Supp.2d 31, 47 (D. Mass. 2000). In the instant case, it is undisputed that the state court applied the same standard as federal courts in order to determine if the out-of-court identifications were suggestive. (See SA 135 (motion judge's Findings of Fact and Rulings of Law)). Corcoran, 2010 WL 4676187, at *1 (citing Watson, where the court held that "[f]or a motion to suppress a photographic identification to succeed, the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Watson, 455 Mass. at 250, 915 N.E.2d at 1057 (quotations omitted)). "[T]he standard for the admissibility of an identification under the Massachusetts Constitution is more favorable to a defendant than the standard under the United States Constitution" in that once a defendant establishes that the identification was "unnecessarily suggestive and conducive to irreparable misidentification" under Massachusetts law, it is excluded, and the court does not then address whether the it was otherwise reliable. Commonwealth v. Walker, 460 Mass. 590, 599 & n.13, 953 N.E.2d 195, 205 & n.13 (2011).

In the instant case, the Massachusetts courts concluded that the initial identification on the computer screen was not unduly suggestive. Corcoran has not identified any federal cases raising the same factual scenario, and the state courts' rulings are not an unreasonable application of Federal law. Here speed in identifying the vehicle was of the essence, since the truck had just left the premises and could possibly be located promptly. The police had pulled up a number of different photographs of vehicles and owners before coming to Corcoran's, and the police did nothing to indicate that the investigation was focusing on Corcoran. The identification of Corcoran's photograph was spontaneous, and occurred shortly after the intruder was seen leaving the premises.8 No one asked the eyewitnesses to identify the photograph on the screen. Officer Macaudda immediately turned the computer off once the spontaneous identification was made, thereby making sure that the witness did not have the opportunity to study or memorize the photograph. In evaluating whether a particular confrontation was unnecessarily suggestive, the court must consider "the totality of the circumstances surrounding it[.]" Stovall, 388 U.S. at 302, 87 S.Ct. at 1972. This was the analysis undertaken by the state courts in the instant case, and Corcoran has not met his burden of establishing that in so concluding the state court decisions involved an unreasonable application of clearly established Federal law. See Id. (bringing a single suspect to hospital room so that a seriously injured victim could identify him was not a due process violation under the circumstances); Simmons v. United States, 390 U.S. 377, 384-85, 88 S.Ct. 967, 971, 19 L. Ed. 2d 1247 (1968) (photographic array of possible bank robbers upheld even though defendants appeared several times in the arrays where "[i]t was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces[.]").

Even if the initial viewing was unduly suggestive, it had sufficient indicia of reliability so that its admissibility was not contrary to Federal law. Applying the Manson v. Brathwaite factors of reliability quoted above, even assuming that the witness' ability to view the intruder was not as lengthy as found by the motion judge, the physical layout of the premises was such that she did have the opportunity to see the intruder. The girls were trying to determine if someone was in the house, so while they may have been scared, there is no evidence that they were not paying attention to identifying the intruder. Kellie was able to give a description of the intruder prior to viewing any photograph, and while she was not certain of her identification of the photograph, she did not hesitate in making it. Moreover, Kellie's identification was spontaneous and took place shortly after the incident. The police did nothing to suggest that the photograph was that of the intruder. Weighing these factors against "the corrupting effect of the suggestive identification itself" supports a finding that the identification of Corcoran was sufficiently reliable so that its admissibility did not violate his constitutional rights. See Brathwaite, 432 U.S. at 114, 92 S. Ct. at 2253.

Similarly, Corcoran has not met his burden of proving that the admission of Kellie's selection of his photograph from the photo array violated his constitutional rights. There is ample support for the conclusion that the array was not suggestive. Further, even if it was suggestive, there was sufficient indicia of reliability to support the decision to admit the identification.

The men depicted in the eight photographs were sufficiently similar so as to constitute a valid array. (See SA 33). The photographs were all black and white, and there was no indication that Corcoran's was from the Registry of Motor Vehicles. Detective Hendry reviewed all the advisements with Kellie before she viewed the photographs, making it clear, among other things, that the suspect may not be included in the array. Other courts facing the same circumstances have found that the photo array was not unduly suggestive. As the court held in United States v. Vaccaro, 445 F.Supp.2d 82 (D. Mass. 2006):

Id. at 86. See also United States v. Brennick, 405 F.3d 96, 100 (1st Cir. 2005) (challenge to photo identification fails where "there is a high degree of similarity among the eight men depicted, as well as among the eight photographs" and the "array does not in any way draw suggestive attention to [the defendant]"). Similarly, in the instant case, the finding that the photo array was not unduly suggestive is amply supported by the record.

Corcoran's principal argument in support of his contention that the photo array was unduly suggestive is his objection to the fact that Kellie had seen the photograph before. However, he has not refuted the motion judge's finding that Kellie's identification of the photograph was based on her observations at the time of the incident, and not due to her having viewed the photograph previously. (SA 134-35). This finding is amply supported by the record. There is no evidence that Officer Hendry indicated to Kellie that the array included a photograph she had seen before. The photographs all looked very similar. Moreover, the fact that Kellie had spent the afternoon at an amusement park with all of her classmates, presumably thinking of other things, would negate any lingering memory she may have had of the glimpse of the RMV photograph hours earlier. Finally, courts have consistently recognized that the mere fact that a witness had seen the suspect's photograph before does not make its inclusion in a subsequent array suggestive. See Watson, 455 Mass at 255, 915 N.E.2d at 1060, and cases cited; Commonwealth v. Dinkins, 415 Mass. 715, 721, 615 N.E.2d 570, 573 (1993) (not improper to include same photograph in successive photo arrays).9

Out-of court identifications "should be suppressed as a matter of due process only in extraordinary cases." United States v. Holliday, 457 F.3d 121, 125 (1st Cir. 2006) (citation omitted). The challenges made by Corcoran go to the strength of Kellie's identification, and not its admissibility. The jury heard from Kellie that she was not positive about her pre-trial identifications, and she was not positive that the defendant in the courtroom was the intruder. This matter was fully explored by defense counsel. "When the conviction is based on eyewitness identification at trial following a pretrial identification by photograph, [the court] will reverse on a constitutional basis only if the very substantial likelihood of misidentification was irreparable, despite the defendant's opportunity to cross-examine the witness about the accuracy of the identification." Id. Here there was ample opportunity for cross-examination. Nevertheless, the jury convicted Corcoran. As detailed above, in addition to the identification of Corcoran himself, there was eye-witness identification of his truck and items in the truck. There was sufficient evidence to support Corcoran's conviction. He has not met his burden of establishing a violation of his constitutional rights.

IV. CONCLUSION

For all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that Corcoran's habeas petition be DENIED.10