Opinion
Civil Action No. 02-10515-RGS.
March 15, 2005
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS
On March 21, 2002, Theodore Watkins petitioned for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Before the court is respondent's motion to dismiss the petition.
BACKGROUND
Petitioner was convicted in 1977 of first degree murder and kidnapping. The following summary of facts is taken from the Supreme Judicial Court's (SJC) decision in Commonwealth v. Watkins, 377 Mass. 385, 386-387 (1979).
Pursuant to 28 U.S.C. § 2254(e)(1), the facts set forth inCommonwealth v. Watkins are presumed to be correct. See Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir. 2002).
On November 17, 1975, petitioner's brother, Larry Watkins, and Theresa Nelson were walking along Dudley Street in the Roxbury section of Boston. A man named Eddie Keen stopped his car and asked Nelson if she wanted a ride. Nelson said yes, and entered the front seat of Keen's car. Larry Watkins also entered the car and sat in the back seat. A few minutes later, Larry Watkins drew a gun, ordered Keen to stop the car, and asked him whether he had any money. Keen said that he did not. Larry Watkins told Nelson to frisk Keen. She did so and removed his wallet. Larry Watkins left the car and opened the trunk. He then ordered Keen to get inside. After Keen complied, Larry Watkins closed the lid. He and Nelson then drove Keen's car to petitioner's home. Nelson went into the home and told petitioner that his brother was outside and had a man locked in the trunk of the car. Petitioner came outside and got into the car with Nelson and his brother. As they drove through Roxbury, Larry Watkins and the petitioner decided to kill Keen. They proceeded to Newton where they opened the trunk and shot Keen in the head. Petitioner and Larry Watkins threw Keen's body into leaves near the side of the road. They then drove away in Keen's car. Petitioner subsequently fled Massachusetts.
Nelson was the Commonwealth's principal witness at petitioner's trial. At the time, she was serving a 3-5 year sentence for robbing Keen and a suspended sentence for the kidnapping. She testified that she did not see the actual shooting of Keen. However, she stated that petitioner had said that he would kill Keen, and that Larry Watkins slid the gun across the front seat of the car to petitioner prior to the shooting. The jury found petitioner guilty of kidnapping and murder in the first degree. He was sentenced to life imprisonment for the murder, and to a concurrent term of five to ten years for the kidnapping.
On March 21, 1977, petitioner filed a motion for a new trial, arguing that the verdict was against the weight of the evidence. The motion was denied on March 22, 1977. (Petitioner's Exhibit 3). Petitioner then appealed the convictions pursuant to G.L. c. 278, § 33E. He claimed (1) that the trial judge erroneously instructed the jury concerning "reasonable doubt," and (2) that the judge had failed to charge the jury that the testimony of an accomplice must be scrutinized with care.
The entirety of the reasonable doubt charge to the jury was as follows:
Now to a third proposition, and that is that the burden that the Commonwealth has is to prove to you, each and every essential element of the crime alleged beyond a reasonable doubt. Now 'beyond a reasonable doubt' is a term that I think you can understand even without much definition. Let me suggest to you then that the law says that the guilt of the defendant must be proved to that degree of certainty that leaves you with an abiding conviction of the truth of the charge. The prosecution must put forth to you such credible evidence as to prove the guilt and every essential element thereof to a degree of proof beyond a reasonable doubt.
Now, that does not mean that proof beyond all doubt or beyond a whimsical doubt, nor does it mean proof to an absolute or mathematical certainty. If that were so, there could be no conviction because what is available to prove guilty [sic] could never permit that possibility. You weren't there, I wasn't there, the lawyers weren't there, so we never saw it with our own eyes and we could never prove to an absolute certainty that anyone did anything.
Reasonable doubt means that doubt that remains in the mind of reasonable men and women sitting as jurors who are seeking the truth. A fact is proven beyond a reasonable doubt when it is proved to a degree of certainty that satisfies your judgment, satisfies your conscience, that such a fact is so, and those facts are sufficient to establish guilt.
The question you ask yourselves is: Are you morally certain, are you reasonably satisfied by the evidence that the defendant committed such acts as amount to the crime alleged, or the crimes alleged? If when all is said and done there remains in your mind a reasonable doubt of the existence of any fact which is essential to the guilt of the defendant, the defendant is entitled to the benefit of that doubt or that uncertainty and your verdict must reflect that doubt. If, however, you are satisfied that the Commonwealth has proved each and every essential element, then your verdict must be "guilty."
Commonwealth v. Watkins, 377 Mass. at 386 n. 5 (emphasis added).
With regard to the reasonable doubt instruction, petitioner argued, inter alia, that the "morally certain" and "reasonably satisfied" language "is far removed in both meaning and tone" from the venerable definition of reasonable doubt set out inCommonwealth v. Webster, 59 Mass. 295 (1850). Petitioner commented in a footnote that, "[r]emoved from its context inWebster, the use of the term 'moral certainty' has been the subject of some controversy," citing to Dunn v. Perrin, 570 F.2d 21, 24 (1st Cir. 1978). (Respondent's Ex. 4.) The SJC denied the appeal, finding that the reasonable doubt instruction, taken as a whole, was not in error because it "properly emphasized the moral certainty, as opposed to a mathematical certainty, which we have consistently held to be a proper definition of the Commonwealth's burden." Commonwealth v. Watkins, 377 Mass. at 388.
Petitioner thereafter filed three post-appeal motions for a new trial. On February 20, 1987, petitioner, acting pro se, filed the first of his motions claiming ineffective assistance of trial counsel. The motion was denied without a hearing. On July 15, 1988, petitioner, still acting pro se, filed the second post-appeal motion for a new trial. Counsel was appointed, and an amended motion was subsequently filed raising three issues: (1) whether in instructing on malice, the trial judge shifted the burden of proof to the defendant; (2) whether the evidence was sufficient to convict beyond a reasonable doubt; and (3) whether the prosecutor misstated the evidence or commented on facts not in evidence during closing argument. The motion was denied in May of 1989. Petitioner sought leave to appeal pursuant to G.L. c. 278, § 33E, but permission was denied by the Single Justice on March 5, 1990.
In 1995, petitioner filed a third motion pro se for a new trial. This motion is the subject of the current petition. In that motion, petitioner argued that the reasonable doubt instruction violated his right to due process by using the term "morally certain" and that the court had unfairly diluted the Commonwealth's constitutional burden of proof by describing reasonable doubt in terms of a juror's "reason[able] satisf[action] with the evidence." Counsel was appointed and an amended memorandum was filed in support of the motion.
On September 22, 1998, after a hearing, Justice Quinlan ruled that petitioner had not waived his right to raise the issue of the use of the "morally certain" language in the reasonable doubt instruction by failing to raise it in his direct appeal. However, she denied relief because "in the context of the instruction on reasonable doubt taken as a whole there was no reasonable likelihood that the jury understood the instructions to allow a conviction on proof insufficient to meet the [In re Winship, 397 U.S. 358, 364 (1970)] standard." (Petitioner's Exhibit 7, Memorandum and Order dated September 17, 1998.)
Petitioner applied to the Single Justice for leave to appeal pursuant to G.L. c. 278, § 33E. On June 16, 1999, Justice Fried gave leave for the appeal to proceed on the issues of waiver and the use of the "moral certainty" language. He noted that "while recent precedent suggests it is likely that the court would not find the instruction at issue in this case to constitute error, the existence of 'use in isolation' statements in other cases suggesting that more is required to clarify any use of the moral certainty language requires that I grant the defendant leave to appeal so that the court may issue a clear statement on this issue."
On appeal, the full Court denied petitioner relief on grounds of waiver. The SJC explicitly ruled that petitioner had defaulted on his reasonable doubt claim because "by 1987, when [petitioner] filed his first postdirect appeal motion for a new trial, the constitutional theory on which he now relies was sufficiently developed, so that his failure to bring the present claim in that motion constitutes a waiver." Commonwealth v. Watkins, 433 Mass. 539, 547-548 (2001).
In a footnote, the SJC stated:
[a]lthough not strictly necessary to decide this appeal, we note that the reasonable doubt instructions given in this case were constitutionally acceptable despite the flaw created by equating moral certainty to a state of being 'reasonably satisfied.' Here, the judge (1) told the jury that they must be satisfied to 'that degree of certainty that leaves you with an abiding conviction of the truth of the charge'; (ii) correctly instructed the jury that '[r]easonable doubt means that doubt that remains in the minds of reasonable men and women sitting as jurors who are seeking the truth,'; (iii) instructed that 'beyond a reasonable doubt' does not mean 'beyond all doubt or beyond a whimsical doubt'; (iv) advised the jury that '[a] fact is proved beyond a reasonable doubt when it is proved to a degree of certainty that satisfies your judgment, satisfies your conscience, that such a fact is so,'; (v) told the jury that the defendant was to receive the benefit of any reasonable doubt, and that they could not convict if, 'when all is said and done there remains in your mind a reasonable doubt of the existence of any fact which is essential to the guilt of the defendant,'; (vi) repeatedly stressed that the jury must decide the case based only on the evidence that had been put before them (thus negating the possibility that they might understand moral certainty to permit a conviction based on subjective feelings, rather than on hard evidence, one of the principal vices of moral certainty language).Commonwealth v. Watkins, 433 Mass. 539, 547 n. 6 (2001). Because the SJC provided a clear and express statement of procedural default, this additional analysis by the SJC does not provide any "good reason" to question whether there is an independent and adequate state ground for its ruling. See Coleman v. Thompson, 501 U.S. 722, 739 (1991). See also Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding . . . as long as the state court explicitly invokes a separate basis for decision."). Here, the SJC's decision was explicitly based on waiver.
In the instant petition, petitioner objects to the finding of a waiver and reargues his objection to the reasonable doubt instruction. The respondent contends that the petition should be dismissed because the SJC's decision rejecting petitioner's third post-appeal new trial motion was based upon an independent and adequate state ground, that is, a procedural default, and that federal habeas review is therefore barred.
DISCUSSION
The AEDPA, 28 U.S.C. § 2254(d), provides, in pertinent part:
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.
Habeas review is precluded in federal court unless a "claim . . . was adjudicated on the merits in State court proceedings" — the longstanding rule is that federal courts do not review state court decisions which rest on "independent and adequate state ground[s]." Simpson v. Matesanz, 175 F.3d 200, 205 (1st Cir. 1999), quoting Trest v. Cain, 522 U.S. 87 (1997). "When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991), citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977). See also Coleman v. Thompson, 501 U.S. 722, 729 (1991). The procedural default doctrine is related to the exhaustion requirement. Both arise from "the general principle that federal courts will not disturb state court judgments based on adequate and independent state law." Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 1851-1852 (2004). A finding of procedural default by the SJC is the "classic example" of an independent and adequate state ground. Simpson, 175 F.3d at 207 (citations omitted). Here, the SJC clearly ruled that petitioner procedurally defaulted his claim regarding the "moral certainty" language. Therefore, federal habeas review is barred unless the petitioner can demonstrate (1) "cause" and "actual prejudice" for his procedural default, or (2) that failure to consider his claims will result in a "fundamental miscarriage of justice."Coleman, 501 U.S. at 750.
Procedural defaults constitute an adequate and independent state ground only if a state procedural rule is "consistently or regularly applied." Johnson v. Mississippi, 486 U.S. 578, 588-589 (1988). As the First Circuit has noted, the SJC regularly enforces the rule that a claim not raised is waived. See Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir. 2002) (collecting state cases).
To satisfy the cause element, petitioner must show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Failure to recognize the factual or legal basis of a claim does not suffice. Id. at 486. As petitioner does not concede a procedural default, he does not explicitly argue "cause and prejudice." He does, however, contend that in 1987, when he filed his first post-appeal motion, the constitutional underpinning of his argument was not developed. That he argues, occurred only in 1990, when the Supreme Court held that an instruction referring to, inter alia, a juror's "moral certainty" of a defendant's guilt rather than his or her "evidentiary certainty" of such, could lead to a conviction on a lesser standard than the proof beyond a reasonable doubt required by due process. See Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam).
The Supreme Court has ruled that a petitioner can establish cause for a procedural default where a claim "is so novel that its legal basis is not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16 (1984). However, "[w]here the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as a cause for procedural default." Murray v. Carrier, 477 U.S. at 486, quoting Engle v. Isaac, 456 U.S. 107, 133-134 (1982).
The 1999 First Circuit case of Simpson v. Matesanz, which involved a similar challenge to "moral certainty" language, is instructive. Like petitioner, Simpson argued that given the developing state of the law, he could not have been expected to raise the moral certainty issue in his direct appeal in 1976. The Court noted that by 1976, a challenge to instructions incorporating the "moral certainty" language had already been raised in habeas proceedings in the federal district court. See id., 175 F.3d at 213, citing Bumpus v. Gunter, 452 F. Supp. 1060, 1060-1062 (D. Mass. 1978). In addition, the Court noted that in 1978, it had commented on the "difference among the authorities about the advisability of such moral certainty instructions, citing to 1956 and 1976 opinions." Simpson, 175 F.3d at 214, citing Dunn v. Perrin, 570 F.2d 21 (1st Cir. 1978). The Court further noted that the constitutionality of the moral certainty instruction had been settled in the First Circuit by 1984, as the result of "a series of decisions dating back to 1980 in both direct appeals and on habeas. This means that the issue had been raised before those dates." Simpson, 175 F.3d at 213. Finally, the Court examined state court precedent and noted that the SJC had indicated in dictum that doubts about the moral certainty language had been foreshadowed in state court cases issued as early as 1954 and 1965. Id., at 215 n. 9, citingCommonwealth v. Therrien, 428 Mass. 607, 609 n. 4 (1998).
The SJC's analysis of the available case law in denying petitioner relief followed a similar track.
[A]t least by the early and mid 1980's, it was reasonably apparent in Massachusetts appellate decisions, and, therefore, should have been grasped by defendants (and their lawyers) seeking to challenge jury instructions on the Commonwealth's burden of proof, that moral certainty language, or moral certainty language defined in terms that departed from the Webster model in material respects, could render instructions on reasonable doubt constitutionally inadequate under both Massachusetts and federal law.Commonwealth v. Watkins, 433 Mass. at 546.
As the SJC also noted, petitioner himself raised the "moral certainty" issue on direct appeal in 1978, arguing that the "morally certain" and "reasonably satisfied" language was constitutionally inadequate. Id.
Petitioner, however, takes the "unavailability" argument one step further. He contends that when he filed his first pro se motion for a new trial in 1987 he had no reason to believe that the law had evolved to the extent that the SJC, which had rejected his moral certainty argument on direct appeal, might change its mind and grant him relief. He argues that not untilCage v. Louisiana was there sufficient legal traction to inspire the hope that re-litigation of the "moral certainty" issue would have some reasonable likelihood of success. The same futility argument was made by the petitioner in Simpson and rejected. "Futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Simpson, 175 F.3d at 211, quoting Bousley v. United States, 523 U.S. 614, 623 (1998). As the Court noted, "Bousley's [cause and futility] rule may seem harsh, and reflects a further restriction on federal habeas, but it bears note that a real claim of actual innocence trumps this restriction." Id. at 211-212.
The same reasoning applies to petitioner's case. He has failed to show cause for his procedural default, and without a demonstration of actual innocence his petition for habeas review must be dismissed. Actual innocence is a narrow exception, but "[i]t suffices if the petitioner can show a probability that a reasonable jury would not have convicted but for the constitutional violation." Murray v. Carrier, 477 U.S. at 496. Petitioner makes no argument that even remotely suggests that he is innocent of what was a truly heinous crime.
ORDER
For the foregoing reasons, respondent's motion to dismiss isALLOWED. The petition is DISMISSED with prejudice.
SO ORDERED.