Commonwealth v. Elston Bone. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-163
COMMONWEALTH
vs.
ELSTON BONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2011, following a jury trial, the defendant was
convicted of numerous weapons-related charges, including
possession of ammunition and four different weapons (a handgun,
rifle, and two shotguns) without an FID card. 1 A panel of this
court affirmed the judgments on the defendant's direct appeal,
see Commonwealth v. Bone, 84 Mass. App. Ct. 1106 (2013), and the
Supreme Judicial Court denied further appellate review, see 466
Mass. 1106 (2013). Based on arguments grounded in the Second
Amendment to the United States Constitution, the defendant filed
a habeas corpus petition seeking to challenge his convictions. 2
1 He was also convicted of improper storage of two of the
weapons.
2 The defendant unsuccessfully had raised a Second Amendment
defense in a pretrial motion to dismiss in Superior Court.
Bone v. Healy, 150 F. Supp. 3d 140 (D. Mass. 2015). This
petition was denied, and the First Circuit affirmed that denial.
Bone v. Healey, U.S. Ct. App., No. 16-1086 (1st Cir. July 13,
2018). The defendant then filed a series of postconviction
motions. These included a motion filed on January 13, 2023,
which was styled as an amended motion to vacate his convictions
under the Second Amendment. Before us now is the defendant's
appeal of a Superior Court judge's order denying that motion. 3
We affirm.
In our decision affirming the defendant's convictions, the
panel ruled that the defendant did not have standing to raise
his Second Amendment issues, because he never applied for an FID
card. See Bone, 84 Mass. App. Ct. 1106. The defendant is
barred by the doctrine of direct estoppel from raising that
issue again. See Commonwealth v. Sanchez, 485 Mass. 491, 498
(2020). To be sure, in rare circumstances courts may entertain
issues that were previously decided where there is "direct
indication" from a higher court that the earlier appeal was
3 The judge's order also purported to deny a separate amended
motion for new trial that had been lodged on June 1, 2022. Due
apparently to some confusion in the docketing, the judge was
unaware that this separate motion formally had been withdrawn by
the defendant by the time the judge ruled (as the defendant
confirmed in his appellate brief). We treat the current appeal
as one challenging only the denial of the defendant's January
13, 2023, amended motion to vacate his convictions.
2
wrongly decided. Id. at 500. This, however, is not such a
case.
In arguing that his convictions plainly cannot stand, the
defendant relies principally on developing United States Supreme
Court jurisprudence, especially the Court's recent decision in
New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111
(2022). The defendant misreads the import of Bruen, which
involved a State licensing scheme that was materially different
than the one relevant here, G. L. c. 269, § 10 (h) (1). See 142
S. Ct. at 2117. As Justice Alito explained in his concurring
opinion, "[o]ur holding decides nothing about who may lawfully
possess a firearm or the requirements that must be met to buy a
gun. . . [n]or have we disturbed anything that we said in
[District of Columbia v.] Heller[, 554 U.S. 570 (2008),] or
McDonald v. Chicago, 561 U.S. 742 (2010), about restrictions
that may be imposed on the possession or carrying of guns."
Bruen, supra at 2157 (Alito, J., concurring). In short, Bruen
did not call into question the constitutionality of the statute
that underlies the defendant's convictions. Accordingly, even
if it were not far too late for the defendant to try to mount a
facial challenge to the licensing scheme that he was found
guilty of violating, the defendant has not demonstrated that
3
there would be any merit to such a challenge.
Order denying amended motion
to vacate convictions
affirmed.
By the Court (Milkey, Blake &
Sacks, JJ. 4),
Clerk
Entered: October 11, 2023.
4 The panelists are listed in order of seniority.
4