Opinion
civil Action No. 99-11125-RWZ
August 23, 2001
MEMORANDUM OF DECISION
In 1991 Petitioner Paul Gunter was one of a group of drug dealers who operated "crack houses" in Boston. On March 22, 1991, believing that one of their houses had been robbed of approximately $1,000 worth of "crack" cocaine, Petitioner, Corey "Floyd" Selby, and Mark Edwards, set out to find and kill the robbers. The three of them, and a woman who knew the robbers and was serving as a guide, drove to a Boston apartment where they expected to find the robbers. Petitioner, who was driving and who was unarmed, remained in the car while the other two men and the woman went to the apartment. Selby and Edwards were armed and, together with the woman, they entered one of the apartments in the building. The robbers were not there, but the apartment was occupied by four other people, including Jack Berry, Jr. Selby and Edwards forced the occupants into the kitchen, where Edwards held them at gunpoint while Selby searched the entire building. He found neither the robbers nor the stolen drugs. As the intruders were leaving the apartment, Selby turned and shot Berry, who was closing the door behind them. Edwards and Selby did not believe that Berry was the robber, nor had they and Petitioner planned to harm anyone other than the robbers. As he shot Berry, Selby said "give this message to [the thieves]." Berry died from the gunshot.
The record suggests that she was forcibly encouraged to assist.
Petitioner, Edwards and Selby were charged as "joint-venturers" with armed assault in a dwelling house with intent to commit a felony, Mass. Gen. Laws ch. 265, § 18A, possession of a firearm without a license, Mass. Gen. Laws ch. 269, § 10(a), and with first-degree murder, Mass. Gen. Laws ch. 265, § 1. Selby was convicted on all three counts, Commonwealth v. Selby, 426 Mass. 168 (1997), while Edwards cooperated with the prosecution and pleaded guilty to manslaughter. Petitioner was also convicted on all three counts, with the first-degree murder charge tried solely on a felony-murder theory. Commonwealth v. Gunter, 427 Mass. 259, 271 (1998). Petitioner appealed to the Supreme Judicial Court ("SJC"), which affirmed the convictions for first-degree murder and for possession of a firearm without a license, but vacated the conviction for § 18A assault. Id. at 275. The SJC ruled that the assault served as the underlying, or "predicate" felony for the felony-murder charge, and that such predicate felonies as a matter of law constitute lesser-included offenses, conviction for which would be duplicative of the felony-murder conviction. Id. 276. Then the Court, sua sponte, considered the separate issue of whether a § 18A assault is sufficiently independent of murder to serve as the predicate felony of a felony-murder charge. Id. at 271. It held that if the acts constituting the assault also cause the death of the victim, then that assault "merges" into the eventual killing, and is not sufficiently independent to serve as the predicate offense. Id. at 273-74. The Court nevertheless affirmed Petitioner's felony-murder conviction on the ground that it was predicated on an assault not against Berry, the murder victim, but against one or more of the apartment's other occupants.
The SJC asked the parties to brief: "[W]hether, in light of the defendant's conviction as a joint venturer of murder in the first degree on a theory of felony-murder, where the underlying felony was armed assault in a dwelling with intent to commit a felony, G. L. c. 265, § 18A, the felony is sufficiently 'independent' of the murder itself to justify the first degree conviction."
Gunter's petition to the SJC for reconsideration was denied, after which he petitioned pro se for a writ of habeas corpus under 28 U.S.C. § 2254. The latter pleading contained twelve separate assignments of error, or "grounds." The majority of these I earlier dismissed on Respondent's motion because Petitioner had indicated that they had not previously been presented to any other court, meaning that he had not exhausted his state court remedies. Respondent's motion to dismiss was denied as to Ground 1 (illegal use of prior bad act evidence) and Ground 2 (illegal use of hearsay evidence). Also remaining are Ground 3 (wrongful denial of required finding of not guilty) and Ground 5 (faulty presumption of innocence instruction), with respect to which Respondent did not move for dismissal. Ground 11, (ineffective assistance of counsel), was dismissed with the other un-exhausted grounds, but Petitioner, now represented by counsel, argues that doing so was in error because Ground 11 had been fairly presented to the SJC in the petition for reconsideration.
Specifically, Petitioner asserts that "[T]he failure to argue that the felony murder doctrine, as applied to the facts of this case, violated petitioner's federal constitutional rights and amounted to ineffective assistance of counsel were (sic) said doctrine allowed the State to prosecute the murder case without proving all of the essential elements of the crime charged . . . "
The first issue to be decided is the status of Ground 11. The heading of Section 2(c) of the petition to the SJC for reconsideration reads, "Mr. Gunter Is Entitled To A New Trial Where He Did Not Receive Effective Assistance Of Counsel." In the body of that section, Petitioner argues that trial counsel failed to request an instruction that the jury had to reach a unanimous verdict on the specific acts that constituted the uncharged assaults on those in the apartment other than Berry. The request for reconsideration was Petitioner's first and only opportunity to raise this issue before the state courts, because it was the SJC that decided, sua sponte, that one or more of the uncharged, untried assaults on occupants of the apartment other than Berry could provide the predicate felony to the felony-murder charge and conviction. Thus the factual basis for Ground 11 — that one or more uncharged, untried "felonies" would serve as the predicate of the felony-murder charge — had not arisen earlier.
Although trial counsel did not request instructions with respect to assaults on the bystanders, there was no reason for him to do so because it was only by virtue of the later decision of the SJC that those assaults came to serve as the predicate of his felony-murder conviction. Petitioner's attempt to frame Ground 11 as a claim of ineffective assistance of counsel was therefore less than artful pleading; however, given that he was filing pro se, and that Ground 11 does challenge the application of the felony murder rule by the SJC on Fifth, Sixth and Fourteenth Amendment grounds, I find Ground 11 sufficient to raise the constitutional issues argued in Petitioner's request to the SJC for reconsideration, and which form the substantial basis of this decision.
The exhaustion provision of 28 U.S.C. § 2254(b)(1), (c) requires that state prisoners seeking federal habeas corpus relief "give state courts a fair opportunity to act on their claims." O'Sullivan v. Boerckel, 526 U.S. 838, 844 (2000) (citations omitted). While that would often require a prisoner to invoke "one complete round of the State's established appellate review process[,] Id. at 845, under the circumstances of this case, where the SJC's sua sponte raising of the issue created the basis for Petitioner's challenge, and where Petitioner's immediate request for reconsideration squarely presented the State's highest court with his constitutional objection, Petitioner has satisfied his exhaustion burden. Petitioner's "admission" in his habeas petition that Ground 11 had not been exhausted was therefore in error.
Respondent argues that Petitioner must nonetheless be held to his mistake, and that this court lacks jurisdiction to reconsider its January 7, 2000 dismissal of Ground 11. Reconsideration of that order, Respondent asserts, would violate Fed.R.Civ.Pro. 59(e), which requires that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." The order dismissing certain of Petitioner's grounds for relief was not a "judgment" as that term is defined in the Federal Rules, however, see Fed.R.Civ.P. 54(a), and Rule 59(e) is only applicable to judgments. Houston Fearless Corp. v. Teter, 313 F.2d 91, 92 (10th Cir. 1962). See generally, 10 Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2651 (1998). Moreover, this court's order reconsidering its earlier allowance of a motion to dismiss is not itself a "motion" under Rule 59 or 60, and any such order is subject to revision at any time. The rule applicable to this court's order of January 7, 2000 is Rule 54(b) ("Judgment Upon Multiple Claims or Involving Multiple Parties"), which states that, absent an extraordinary decision of the court to the contrary, "any order . . . which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . ., and . . . is subject to revision at any time before the entry of judgment adjudicating all the claims[.]" Because this court's order was never certified under Rule 54(b), it remained interlocutory and "subject to the district court's discretionary power to alter it at any time prior to the entry of the final decree." Farr Man Co., Inc. v. M/V/ Rozita, 903 F.2d 871, 875 (1st Cir. 1990). Balancing the potential hardship to the Petitioner, if held to his mistake, against the burden the Commonwealth will bear if forced to address Ground 11 on its merits, considerations of fairness and justice weigh heavily in Petitioner's favor. The request for reconsideration of the order allowing Respondent's motion to dismiss Ground 11 is therefore granted, and said order revised to deny Respondent's motion with respect to Ground 11.
Rule 60(b) relief would likewise be unavailable to Petitioner here, as that rule also applies only to final orders or judgments. See, Farr Man, 903 F.2d at 874; Houston Fearless, 313 F.2d at 92.
The felony-murder rule in Massachusetts is part of state common law. One of the limits that has been placed upon the operation of the rule is the requirement that the conduct which constitutes the underlying, predicate felony must be separate from the acts of violence which constitute a necessary part of the homicide itself. This limitation is known as the merger doctrine because an underlying felony that is analytically part of the eventual killing is treated as having merged into the killing, and therefore cannot serve as the predicate felony for a felony-murder conviction. The merger doctrine was recognized as part of Massachusetts common law by the SJC in Commonwealth v. Quigley, 391 Mass. 461 (1984), cert. denied, 471 U.S. 1115 (1985).
The indictment of Petitioner cites as the only predicate for the felony-murder count a charge of armed assault in a dwelling house with intent to commit a felony, M.G.L. c. 265, § 18A, against Berry, the murder victim. Petitioner was tried on that charge. Though the SJC determined that the assault on Berry was not sufficiently independent of his eventual killing, and that the merger doctrine therefore precluded that assault from serving as the predicate for the felony-murder charge, Id. at 274, it yet preserved the conviction by ruling that uncharged and untried assaults against one or more of the three other occupants of the apartment could serve as the predicate. Id.
The indictment for armed assault in a dwelling read: "Paul Gunter, on March 22, 1991, being armed with a certain dangerous weapon, to wit: a handgun, did enter the dwelling house of another at Boston aforesaid, and while therein did assault Jack Barry, Jr. [sic], the younger of that name with intent to commit a felony, to wit: assault by means of dangerous weapon."
Massachusetts does allow an unindicted felony to serve as the predicate for a felony-murder conviction, see, Commonwealth v. Eagles, 419 Mass. 825 (1995); Commonwealth v. Matchett, 386 Mass. 492 (1982), but the requirements of the United States Constitution nonetheless must be met before any felony, indicted or not, can so suffice. The SJC so recognized in cautioning that "once it is established that a felony is sufficiently independent to substitute legitimately for the malice element normally required for murder in the first degree, proof of that independent felony becomes essential for a conviction of felony-murder." Commonwealth v. Gunter, 427 Mass. at 276. It said, however, that "the jury could have found beyond a reasonable doubt" that the Defendant, through his co-venturers, assaulted someone else in the apartment, id. at 274 (emphasis added), and upon that speculative foundation affirmed Petitioner's murder conviction. That 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. § 2254(d)(1). See, Williams v. Taylor, 529 U.S. 362, 402-413 (2000).
Once Petitioner's conviction for assault on Berry had been ruled out as the predicate felony, the due process requirement of the Fourteenth Amendment protected Petitioner against conviction based upon the substitute predicate felony "except upon proof beyond a reasonable doubt of every fact necessary to constitute" that felony. In re Winship, 397 U.S. 358, 364 (1970) (emphasis added). See also, Apprendi v. New Jersey, 530 U.S. 466, 476-477 n. 3. Cf. Richardson v. United States, 526 U.S. 813 (1999) (holding that conviction under 21 U.S.C. § 848(a) for "engaging in a continuing criminal enterprise" requires federal jury to agree unanimously that defendant committed each of the individual violations government alleges to show the continuing enterprise); Sandstrom v. Montana, 442 U.S. 510 (1979) (holding unconstitutional conclusive presumptions concerning elements of the charged offense, as well as presumptions shifting burden of proof from prosecution to defendant); Patterson v. New York, 432 U.S. 197, 210 (1977) ("Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.") (emphasis added); Mullaney v. Wilbur, 421 U.S. 684 (1975). The "due process of law" that states must provide to criminal defendants under the Fourteenth Amendment encompasses the Sixth Amendment right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145 (1968), and a unanimous Supreme Court has held that the due process and trial by jury requirements operate in tandem to "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." U.S. v. Gaudin, 515 U.S. 506, 510 (1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 277-278 (1993)). See also, Apprendi, 530 U.S. at 476-477 n. 3. Cf. Jones v. U.S., 526 U.S. 227, 243 n. 6 ("[u]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact . . . that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."). Although the jury that convicted Petitioner of the assault against Berry heard evidence concerning the acts of Petitioner's co-venturers against other occupants of the apartment, Petitioner was not charged with, nor did he have an opportunity to defend against, assaults against any of the bystanders. Petitioner thus received no jury trial with respect to these assaults, nor did the jury find sufficient facts, beyond a reasonable doubt, to convict him of such assaults.
As noted earlier, the SJC upheld Petitioner's felony-murder conviction on the basis that the jury could have found Petitioner guilty of those assaults. In so doing, the Court may have borrowed the rule of Jackson v. Virginia, 443 U.S. 307 (1979), governing federal habeas challenges to state court convictions based on insufficiency of the evidence, which states that a defendant's constitutional rights are violated on sufficiency grounds only if no rational trier of fact could have found beyond a reasonable doubt each element of the offense. That rule presumes, however, that the trier of fact has actually found facts supporting conviction on the prosecution's specified theory of criminal liability, for as the Jackson Court noted, "[i]t is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process." Id. at 314 (citing Cole v. Arkansas, 333 U.S. 196, 201 (1948); Presnell v. Georgia, 439 U.S. 14 (1978)). Since the Gunter jury performed no such fact-finding function with respect to any assaults on the bystanders, however, the "could have found" test, whatever its source, contradicts the governing law articulated by the Supreme Court. The decision of the SJC was thus contrary to clearly established Federal law, Williams, 529 U.S. at 405, and habeas relief is therefore warranted under the first prong of 48 U.S.C. § 2254(d)(1).
The SJC may also have been engaged in "harmless error" analysis when it applied the "could have found" rule, but that also would have been unconstitutional. According to the Supreme Court, "[t]he inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee." Sullivan, 508 U.S. at 280 (citations omitted). The SJC surely hypothesized a jury verdict that was never in fact rendered.
Although the "contrary to" and "unreasonable application of" prongs of § 2254(d)(1) must be given independent meaning, Williams, 529 U.S. at 404-405, it is not clear that a single decision of a State court may not run afoul of both. Given the apparent novelty of Petitioner's situation, I note that the SJC's actions also constituted an "unreasonable application of" clearly established Federal law, a separate and independent ground for habeas relief. Specifically, when confronted with what appears to have been an unprecedented situation, the SJC declined to extend the clearly established Fifth, Sixth and Fourteenth Amendment protections, outlined above, to the new context, and thus may be deemed to have unreasonably applied the law of the Supreme Court to the facts of Petitioner's case. Williams, 529 U.S. at 407-409. Habeas relief is therefore also warranted under the second prong of § 2254(d)(1).
Respondent is correct that "the law of Massachusetts is what the SJC says it is[,]" Ortiz v. DuBois, 19 F.3d 708, 713 n. 5 (1st Cir. 1994), cert. denied, 513 U.S. 1085 (1995), and Massachusetts law defines both the felony-murder doctrine and the merger doctrine limitation thereof. But what is at issue here is not how the SJC interprets the merger doctrine, or any other area of state law, but rather whether the SJC's application of state law has had the effect of depriving Petitioner of rights guaranteed to criminal defendants by the United States Constitution. This is the core function of federal habeas review of state criminal convictions, without which uniform national enforcement of federal constitutional rights would be impossible.
Respondent also argues that by failing to raise the issue of the assault on Berry merging into the murder charge, Petitioner waived that objection. Under the procedural default doctrine, habeas relief would be improper unless Petitioner could demonstrate cause and prejudice, or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also, O'Sullivan v. Boerckel, 526 U.S. 850-856 (Stevens, J., dissenting) (explaining difference between exhaustion requirement and procedural default doctrine). This argument mis-characterizes Petitioner's constitutional argument, however, which is not based on the merger doctrine in the usual sense, but on how the SJC sought to preserve Petitioner's conviction once it had decided that the merger doctrine applied. The fact that Petitioner may have waived a merger doctrine argument by not raising it at trial does not mean that Petitioner thereby waived any objections he might have to the solution the SJC found for the merger problem, once it raised that problem sua sponte. Petitioner's April 28, 1998 petition to the SJC for reconsideration constituted his one opportunity to object to the Court's solution, and in that petition he made his constitutional objections to that solution very clear. Under the circumstances of this case, there is absolutely no evidence that the SJC's decision to refuse reconsideration rested on a state-law procedural waiver, or some other adequate and independent state-law ground, and that refusal to reconsider must be seen as resolving the merits of Petitioner's federal constitutional claim. That decision is therefore not impervious to habeas review by reason of procedural default. Phoenix v. Matesanz, 189 F.3d 20, 25-26 (1st Cir. 1999).
Similarly, Respondent's argument that under Massachusetts law the statutory form of indictment is sufficient to charge murder by whatever form, is no answer to Petitioner's objections. States are free to place premeditated murder and felony-murder within an umbrella offense of first-degree murder, thus treating premeditation and the commission of a felony as alternative means of satisfying the mens rea requirement. See, Schad v. Arizona, 501 U.S. 624, 637 (1991). It remains, however, an "axiomatic principle that the prosecution must prove independently every element of the crime." Id. at 636. Thus, whether a state chooses to pursue a first-degree murder conviction by charging premeditation, commission of a felony, or both, the state must still prove the elements of the theory or theories under which it proceeds. Likewise, setting aside the question whether the Constitution permits a state to allow predicate felonies to remain uncharged, cf. Jackson, 443 U.S. at 314 ("conviction upon a charge not made . . . constitutes a denial of due process"), a felony-murder conviction must have as its foundation proof beyond a reasonable doubt of the elements of the predicate. That predicate serves in felony murder as the malice element of first-degree murder, and to allow the predicate to serve that function without being tried and proven beyond a reasonable doubt would be equivalent to allowing a jury to infer malice from a defendant's acts without requiring it to find, beyond a reasonable doubt, that the defendant committed such acts. That omission is clearly unconstitutional. See, Rose v. Clark, 478 U.S. 570, 580 ("When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt."). Such is also the law of Massachusetts. Commonwealth v. Matchett, 386 Mass. at 499 (Commonwealth must prove all elements of the predicate felony regardless of the fact that the predicate not charged). Petitioner's jury was not given the task of ascertaining the predicate facts and did not do so.
Judgment may be entered granting the writ.