Opinion
Civil Action No. 99-10480-RWZ.
March 25, 2002
MEMORANDUM OF DECISION
Petitioner was convicted of first degree murder on December 16, 1993, and sentenced to a term of life imprisonment without parole. His petition for a Writ of Habeas Corpus, timely filed on March 3, 1999, states that the trial judge improperly instructed the jury in violation of his constitutional rights under 28 U.S.C. § 2254. Specifically, petitioner argues that the trial judge failed to instruct the jury on the lesser offense of murder in the second degree, contrary to M.G.L.c. 265 § 1, which requires such an instruction. He has also filed numerous procedural motions. Respondent opposes the petition based on petitioner's failure to demonstrate that the state court's adjudication of his claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. See Williams v. Taylor, 529 U.S. 362 (2000).
At trial, the prosecution presented evidence that petitioner hired a friend to shoot and wound the sixteen year old son of petitioner's girlfriend. When the friend did not follow through with petitioner's plan, petitioner, himself, stated to witnesses that he intended to kill the teenager and began taking steps toward that end. "Significant additional evidence implicated [the petitioner] in [the] murder." Commonwealth v. Vinnie, 428 Mass. 161, 164 (1998).
Both the trial judge and the Massachusetts Supreme Judicial Court ("SJC"), rejected his requests for a new trial or reduction of sentence. The SJC based its decision on the fact that petitioner, with the advice of counsel, made a tactical decision not to request a second degree murder instruction. Moreover, the SJC concluded that even if he had not waived the instruction, in light of the evidence presented at trial, "no theory would have supported a jury verdict of murder in the second degree." Vinnie, 428 Mass. at 164. Respondent opposes the petition on the grounds that petitioner has not exhausted his federal constitutional claim and that, in any case, his claim is based purely on state law and therefore does not provide a basis for federal habeas corpus relief. Because the failure to include a lesser offense instruction at the trial level did not result in a "fundamental miscarriage of justice," Tata v. Carver, 917 F.2d 670 (1st Cir. 1990), the petition for Writ of Habeas Corpus is denied, and all remaining motions are thereby rendered moot.
In relevant part, 28 U.S.C. § 2254 precludes a federal court from granting habeas corpus relief, unless the state court adjudication "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," 28 U.S.C. § 2254(d)(1), or 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). Contrary to respondent's recitation of controlling law, the First Circuit has stated that the refusal of a lesser included offense instruction in a state court prosecution of a noncapital offense is a cognizable claim under 28 U.S.C. § 2254. Tata, 917 F.2d at 672. The Tata court, however, held that even where an erroneous jury instruction raises a claim of constitutional magnitude, "`review of state court criminal proceedings is limited to those instances in which the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process'." Id. (citing Grace v. Butterworth, 635 F.2d 1, 6 (1st Cir. 1980) (internal citation omitted). To rise to the level of a due process violation, the refusal to instruct must threaten a fundamental miscarriage of justice. Id.
According to the SJC opinion that denied petitioner's request for a new trial or reduction in sentence, no such fundamental miscarriage occurred:
The facts of this case persuade us that, although the jury was not allowed to determine the degree of murder, the verdict should stand. Three considerations taken in unison support this conclusion. First, [the petitioner] not only did not object to, but invited this error. After consultation with trial counsel, he elected to limit the jury verdict options. That [the petitioner] invited the omission of the instruction, and would have objected to its inclusion, indicates that he believed that there was no rational view of the evidence that would warrant the jury's returning a verdict of murder in the second degree. Second, the Commonwealth did not seek an instruction on murder in the second degree and acquiesced to the judge's decision to forgo such an instruction. Finally, our review of the record confirms the conclusions of the trial counsel, the prosecutor, and the judge, all of whom, familiar with the evidence and protecting all the interests at stake, saw no reason to charge on murder in the second degree.
Vinnie, 428 Mass. at 180.
The underlying facts are presumed true unless petitioner is able to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18-19 (1st Cir. 2000). Petitioner has not done so here. Accordingly, the petition for Writ of Habeas Corpus is denied and all remaining motions are thereby rendered moot. Judgment may be entered denying the Writ.