Powell v. Tompkins

United States Court of Appeals
For the First Circuit
No. 13-1310
AARON POWELL,
Petitioner, Appellant,
v.
STEVEN TOMPKINS,
SHERIFF, SUFFOLK COUNTY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Howard and Thompson,
Circuit Judges.
K. Hayne Barnwell, by appointment of the court, for appellant.
Susanne G. Reardon, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief for appellee.
April 15, 2015
HOWARD, Circuit Judge. Petitioner Aaron Powell was
convicted on several state charges including unlawful possession of
a loaded firearm, see Mass. Gen. Laws ch. 269, §§ 10(a), (h), (n),
and his convictions were affirmed by the Massachusetts Supreme
Judicial Court (SJC), see Commonwealth v. Powell, 946 N.E.2d 114(Mass. 2011). Powell then sought federal habeas relief pursuant to
28 U.S.C. § 2254, which was denied by the district court. In this
appeal from that denial, he primarily protests the state criminal
procedure requirement that a defendant accused of unlawful
possession of a firearm bear the burden of producing evidence of a
proper license as an affirmative defense. The absence of such
proffered evidence gives rise to a presumption during trial that
the defendant did not have a valid license; but, if produced, the
prosecution has the burden of proving beyond a reasonable doubt
that the defense does not exist. See Mass. Gen. Laws ch. 278, § 7;
Commonwealth v. Jones, 361 N.E.2d 1308 (1977). The SJC concluded
that this state procedure comports with federal due process, and we
hold that Powell has failed to establish that the state court
decision conflicts with clearly established Supreme Court
precedent. In addition, Powell advances Second Amendment claims,
and a related Equal Protection claim. We hold that these claims
also provide no basis for disturbing his state convictions.
Finally, we deem waived his Sixth Amendment ineffective assistance
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of counsel claim. Accordingly, we affirm the district court's
denial of his petition for § 2254 relief.
I. Background
We are required to presume that the SJC's factual
rendition is correct and, therefore, we draw our description of the
facts from that opinion. 28 U.S.C. § 2254(e); see Gunter v.
Maloney, 291 F.3d 74, 76 (1st Cir. 2002).
Late one night in August 2008, two Boston police officers
were on routine patrol in Roxbury when they noticed a brooding
crowd at an intersection. The two dozen or so youths appeared to
be aligned into three groups, with two groups on one side of the
street and the third on the other side of the street. People were
yelling and pointing back and forth at one another, but the crowd
grew quiet as the officers drove by in their unmarked cruiser. One
officer noticed a young man (later identified as Powell) who was
walking nearby but set apart from the groups. Powell looked away
when he saw the officers and moved his hands toward his waist in a
manner which the officers viewed as consistent with concealing or
retrieving contraband. Powell walked past the crowd and then began
to run.
A foot chase ensued, and while en route, one officer saw
Powell clutching something in his right hand. The officer next saw
the handle of a gun in Powell's hand and twice commanded Powell to
drop it. Powell continued to flee, and when attempting to climb a
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fence to evade the officers, he dropped a .22 caliber revolver to
the ground. Powell then ran along the fence and into a darkened
garage. He soon emerged with both hands clenched in fists,
charging at one of the officers. The officer moved out of the way,
Powell knocked into the second officer, and the foot chase
continued down the street. The police soon caught up with Powell
and arrested him. The loaded revolver was retrieved from where
Powell had attempted to scale the fence. Without first issuing
Miranda warnings, an officer asked him why he ran and whether he
had a license for the firearm. Powell replied that he did not have
a firearm.
The Commonwealth of Massachusetts charged Powell with
several state crimes. He waived his right to a jury trial and,
after a bench proceeding, was convicted of publicly carrying a
firearm without a license, Mass. Gen. Laws ch. 269, § 10(a); doing
so while the firearm was loaded, id. ch. 269, § 10(n); and
possessing ammunition without a permit, id. ch. 269, § 10(h). He
was sentenced to eighteen months of incarceration and three years
of probation for the firearms and ammunition offenses.1
1
Powell also was convicted for resisting arrest, which is not
a part of this habeas petition. Additionally, although it appears
from the record that Powell has now completed his sentence, he
filed his petition challenging the legality of his firearms
convictions before his sentence concluded. We find that his
petition is neither moot nor beyond the jurisdictional reach of 28
U.S.C. § 2254(a). See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998);
Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); see also
Lefkowitz v. Fair, 816 F.2d 17, 19 (1st Cir. 1987).
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While Powell's appeal to the state intermediate appeals
court was pending, the United States Supreme Court decided McDonald
v. City of Chicago, in which it held that the Second Amendment
right to keep and bear arms applies to the states through the
Fourteenth Amendment. 561 U.S. 742, 130 S. Ct. 3020, 3042 (2010).
On its own motion, the case was transferred to the SJC, which
affirmed Powell's convictions. See Powell, 946 N.E.2d 118.
Pertinent here, the SJC rejected Powell's due process
challenge to the Commonwealth's failure to present evidence that he
lacked a firearms license. Id. at 124. Following its own
precedent, the court held that the accused has the burden of
producing evidence of a license as an affirmative defense in
prosecutions for firearms possession and carrying offenses. Id.It also held that this state procedure is in accord with due
process because the burden of proving an element of the crime did
not shift to the defendant. Id. (relying on Jones, 361 N.E.2d
1308).
In addition, the SJC declined to assess the merits of
Powell's claim that state law age restrictions on young adults'
ability to obtain a license to publicly carry a firearm violate the
Second Amendment and the Equal Protection Clause of the Fourteenth
Amendment. Id. at 128. The state court viewed his age-based
challenges as procedurally barred, essentially because Powell did
not demonstrate that his lack of licensure was based on the minimum
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age requirement alone. Id. at 129-30. The SJC excused Powell's
failure to raise his Second Amendment arguments in a pretrial
motion because the issues were not available to him until after
McDonald was decided. Id. at 127.
Lastly, the SJC rejected Powell's ineffective assistance
of counsel claim, which was based on trial counsel's failure to
file a motion to suppress Powell's pre-Miranda statement to the
police denying that he had possessed a gun. The court concluded
that any allegedly deficient legal representation caused Powell no
prejudice due to other evidence of his consciousness of guilt. Id.
at 125.
Powell later pursued a § 2254 habeas petition in federal
district court, which was denied. Powell v. Tompkins, 926 F. Supp.
2d 367 (D. Mass. 2013). We consider the merits of the federal
habeas petition de novo. See Pena v. Dickhaut, 736 F.3d 600, 603
(1st Cir. 2013).
II. Discussion
Securing relief under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA") is an onerous task. See Pub.L.
No. 104-132, § 104, 110 Stat. 1214, 1218-1219, codified at 28
U.S.C. § 2254; see also White v. Woodall, 134 S. Ct. 1697, 1702
(2014); Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013). Powell may
secure relief for claims addressed in his direct appeal if the
state court's decision "was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as
determined by" the Supreme Court, 28 U.S.C. § 2254(d)(1). Only
legal errors that are objectively unreasonable warrant relief. See
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (expounding on
"contrary to" prong); Titlow, 134 S. Ct. at 16 (expounding on
"unreasonable application" prong); see also Woodall, 134 S. Ct. at
1702, 1706 (emphasizing that "even 'clear error' will not suffice"
and rejecting an "unreasonable-refusal-to-extend rule" that was
discussed in earlier AEDPA cases).
The Supreme Court's precedent, not that of the circuit
courts, serves as the benchmark for securing § 2254 relief. Lopez
v. Smith, 135 S. Ct. 1, 3 (2014) (per curiam); see Esparza, 540
U.S. at 16 (noting that a state court need not even be aware of
Supreme Court precedents, "so long as neither the reasoning nor the
result of the state-court decision contradicts them"). Here,
Powell largely rests on In re Winship, 397 U.S. 358 (1970) in
support of his Due Process claim, and on District of Columbia v.
Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561
U.S. 742 (2010) for his Second Amendment and related Equal
Protection claims.
A. Due Process
It is bedrock that the Due Process Clause of the
Fourteenth Amendment "protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary
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to constitute the crime with which he is charged." Winship, 397
U.S. at 364. Powell argues that under this command, "a state may
not be relieved of proving beyond a reasonable doubt the elements
of lack of a firearms license and registration card by imposing a
so-called 'minimal' burden of production upon the defendant." Writ
large, however, his claim primarily rests on the premise that
absence of licensure is an element of the state criminal offense,
a position that runs contrary to SJC precedent as exposited in
Jones and its progeny. Undeterred, he relies on the text of the
operative state statutes, select state case law, and language in
his criminal complaint to support his contention that the proper
due process analysis must account for absence of license as an
operative element of the charged firearms crimes.
To determine the appropriate lens that governs Powell's
due process claim, we begin, as we must, with Massachusetts law.
See, e.g., Medina v. California, 505 U.S. 437, 445-46 (1992)
(addressing state law affirmative defenses); County Court of Ulster
County v. Allen, 442 U.S. 140, 156-60 (1979) (addressing state law
inferences and presumptions); see also Marshall v. Bristol Superior
Court, 753 F.3d 10, 19 (1st Cir. 2014) (noting that the federal
court is "bound by the state court's construction of its state
statutes and other issues of state law").
To lawfully possess and carry a firearm within the
Commonwealth a person must either obtain a license to do so or be
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exempt from the normal licensing requirements. See generally Mass.
Gen. Laws ch. 140, §§ 121-131P; Hightower v. City of Boston, 693
F.3d 61, 65 (1st Cir. 2012) (surveying Massachusetts law). The
categories of permits that were available at the time of Powell's
arrest generally consisted of a firearms identification card (FID
card), a Class B license, and a Class A license. See, e.g., Mass.
Gen. Laws ch. 140, §§ 129B, 129C, 131; see also Hightower, 693 F.3d
at 65; Chief of Police of City of Worcester v. Holden, 26 N.E.3d
715, 721-22 (Mass. 2015). An FID card permits a qualified person
to keep a firearm and ammunition in his home or place of business
but does not by itself allow an individual to carry them in public.
See Mass. Gen. Laws ch. 140, §§ 129B, 129C; Hightower, 693 F.3d at
66. A Class B license generally permits a person to publicly carry
smaller capacity firearms for lawful purposes. See Mass. Gen. Laws
ch. 140, § 131(b). The holder of a Class A license has greater
privileges and generally may publicly carry larger capacity
firearms for lawful purposes that are loaded and concealed. See
id. ch. 140, § 131(a); Hightower, 693 F.3d at 66. "[T]he chief of
police or the board or officer having control of the police in a
city or town, or persons authorized by them," serve as the state's
licensing authority, Mass. Gen. Laws ch. 140, § 121, and the degree
of discretion to grant a permit and to impose any restrictions on
permits varies. See, e.g., Mass. Gen. Laws §§ 129B, 129C, 131;
Hightower, 693 F.3d at 66 (applicant must be a "suitable person"
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for a license to publicly carry); Holden, 26 N.E.3d at 723-24, 727-
28 (explaining the purpose of the state's licensing prerequisites,
including the "suitable person" qualification).2
State law also prescribes criminal penalties for certain
unlawful conduct related to firearms. Pertinent here, section 10
of Chapter 269 ("Crimes Against Public Peace") of the state's
criminal code penalizes the unlawful possession or carrying of
particular weapons and ammunition. Mass. Gen. Laws ch. 269, § 10;
see generally 2014 Mass. Acts ch. 284, §§ 89-92 (new legislation
amending Mass. Gen. Laws ch. 269, § 10). Criminal sanctions may be
imposed on, among others:
(a) Whoever, except as provided or exempted by
statute, knowingly has in his possession . . .
a firearm, loaded or unloaded, as defined in
[ch. 140, § 121] without either:
(1) being present in or on his residence
or place of business; or
2
Comprehensive new state legislation amending a variety of
firearms regulations was enacted by the Commonwealth in August
2014. 2014 Mass. Acts ch. 284 ("An Act Relative to the Reduction
of Gun Violence"). Among other changes, the new law will eliminate
the category of Class B license in order to create a unitary
license to carry. See, e.g., id. at §§ 24, 46-48, 60, 68, 71, 101.
Our survey of Massachusetts law in this opinion generally adheres
to the laws in effect at the time of Powell's criminal conduct.
Moreover, our summary is no more than that. Chapter 140 of
Massachusetts General Laws requires licensing for many activities
in the Commonwealth, and the regulatory scheme for firearms within
that chapter is fairly extensive, incorporating various
requirements for lawful possession and carrying relating to the
applicant, the setting, and the usage. See Mass. Gen. Laws ch.
140, §§ 121-131P; see also 2014 Mass. Acts ch. 284, § 70 (new
legislation enacted an additional provision, Mass. Gen. Laws ch.
140, § 131Q).
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(2) having in effect a license to carry
firearms issued under [ch. 140, § 131
governing licensure];
. . .
(h)(1) Whoever owns, possesses or transfers a
firearm, rifle, shotgun or ammunition without
complying with [ch. 140 § 129C governing FID
cards] . . . .
Mass. Gen. Laws ch. 269, § 10. A minimum of eighteen months
imprisonment is required for a section 10(a) violation, id. ch.
269, § 10(a), and enhanced punishment may be imposed for persons
who violate this subsection "by means of a loaded firearm," id. §
10(n). Imprisonment is not mandatory for all section 10(h)
violations. See id. § 10(h)(1).3
At the heart of Powell's due process claim is a statutory
presumption that arises in criminal prosecution for a firearms
offense.
A defendant in a criminal prosecution, relying
for his justification upon a license,
appointment, admission to practice as an
attorney at law, or authority, shall prove the
same; and, until so proved, the presumption
shall be that he is not so authorized.
Mass. Gen. Laws ch. 278, § 7 (emphasis added). Accordingly, unless
an individual standing accused of unlawfully possessing a firearm
3
We note that the mere failure to produce a firearms license
upon demand may subject the person to surrendering the firearm, but
such failure is not, standing alone, criminal. See Mass. Gen. Laws
ch. 140, § 129C; see Jones, 361 N.E.2d at 1312.
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produces evidence at trial demonstrating licensure, state law
presumes that he is not so licensed. See Commonwealth v. Davis,
270 N.E.2d 925, 926 (Mass. 1971) (noting that the section 7
criminal procedure provision "allows the defendant to show that his
conduct is within an exception to the proscription" on carrying
firearms). Section 7 is a rule of state criminal procedure that
applies in an array of criminal prosecutions beyond the firearms
context.
Within this statutory framework, the SJC has long held
that a section 10 firearms offense is a public welfare offense that
imposes a general prohibition against carrying a firearm for which
both exceptions and exemptions may apply in any given case.
Commonwealth v. Jackson, 344 N.E.2d 166, 174 (1976); Jones, 361
N.E.2d at 1310-13; see Davis, 270 N.E.2d at 926 (explaining that
section 10(a) is a regulatory measure "proscrib[ing] certain
inherently dangerous acts"). In order to secure a conviction for
a section 10 firearms offense, the Commonwealth must prove beyond
a reasonable doubt that (1) the accused knowingly possessed a
firearm, and (2) the firearm met the legal definition provided
under Chapter 140, § 121. Jones, 361 N.E.2d at 1311-13; Jackson,
344 N.E.2d at 174. Pursuant to the section 7 criminal procedure
provision, evidence of license may operate as an affirmative
defense at a criminal trial for which the accused bears the burden
of production only: "Absence of a license is not an element of the
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crime as that phrase is commonly used. . . . [Rather,] the burden
is on the defendant to come forward with evidence of the defense.
If such evidence is presented, however, the burden is on the
prosecution to persuade the trier of facts beyond a reasonable
doubt that the defense does not exist." Jones, 361 N.E.2d at
1311.4
In considering Powell's direct appeal, the SJC saw no
reason to stray from its established state precedent, which
includes the holding in Jones that the state law placing the burden
of production on a defendant satisfies the baseline due process
demands under Winship. See id. at 1313. It is this allegiance
that fuels the bulk of Powell's due process claim.
Powell first argues that the very text of the statute of
conviction contemplates that absence of license is an element of
4
The state court has affirmed repeatedly the Jones court's
exposition on both the elements of a state firearms offense and
licensure operating as an affirmative defense. See Commonwealth v.
Humphries, 991 N.E.2d 652, 658-59 (2013); Commonwealth v. Eberhart,
965 N.E.2d 791, 795 (Mass. 2012); Commonwealth v. Jefferson, 965
N.E.2d 800, 809-11 (Mass. 2012); Commonwealth v. Gouse, 965 N.E.2d
774, 788 n.17 (Mass. 2012); Commonwealth v. Young, 905 N.E.2d 90,
95 n.9, 96 (Mass. 2009); Commonwealth v. Colon, 866 N.E.2d 412, 429
(Mass. 2007); Commonwealth v. Anderson, 834 N.E.2d 1159, 1173-74
(Mass. 2005); Commonwealth v. Than, 817 N.E.2d 705, 708 (Mass.
2004); Ramirez, 555 N.E.2d at 211; Commonwealth v. Tuitt, 473
N.E.2d 1103, 1109-10 (Mass. 1985). This procedural framework with
respect to license as an affirmative defense is not unusual even
among federal statutes. See, e.g., United States v. Matthews, 749
F.3d 99, 104-05 (2014) (holding that "a defendant seeking the
benefit of an exception" under the pertinent statute "must shoulder
the burden of coming forward with evidence regarding that
exception," including a valid marijuana prescription).
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the offense. He criticizes the SJC for following the "muddled
rationale" of Jones, which he characterizes as recasting this
essential element as an affirmative defense of licensure. Powell,
therefore, urges us to abide by the plain language of the state
statute and recognize absence of license as an operative element of
the firearms charges that were levied against him. This, we cannot
do.
It is, of course, the duty of the state high court to
construe the meaning of state statutes, including criminal offenses
and rules of procedure, and the SJC has been dogmatic in following
the Jones exposition for more than three decades. See Commonwealth
v. Smith, 829 N.E.2d 1090, 1092-93 (Mass. 2005); Commonwealth v.
Anderson, 651 N.E.2d 1237, 1240 (Mass. App. Ct. 1995) (same); see
also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). The SJC's
exposition represents the very meaning of the statute intended by
the state legislature, and we are duty bound, in no uncertain
terms, to follow that state precedent. See Mullaney, 421 U.S. at691 & n.11; Marshall, 753 F.3d at 19.
Still, Powell points to select state case law in order to
stir up some ambiguity on the criminal elements of a section 10
firearms offense. He cites two cases in which the SJC has
expressed that mere possession of a firearm is not unlawful,
precedent that he sees as conflicting with the Jones line. See
Commonwealth v. White, 891 N.E.2d 675 (Mass. 2008); Commonwealth v.
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Alvarado, 667 N.E.2d 856 (Mass. 1996). But, as is often the case,
context clarifies.
The SJC in White, admittedly, painted with a broad brush
when recounting the components of proof for a firearms crime. See
White, 891 N.E.2d at 678 (noting that "the Commonwealth must prove
that the defendant knowingly possessed a firearm without . . .
having in effect a license to carry firearms or [an FID card]").
However, its opinion otherwise shows no intent to undo clear and
longstanding precedent governing the legal elements for a section
10 firearms offense and the effect of the section 7 criminal
procedure provision a criminal trial. See id.
The same is true for the Fourth Amendment discussion in
Alvarado. There, the SJC emphasized that mere possession of a
firearm may not serve as the sole factual predicate for law
enforcement's reasonable suspicion of unlawful conduct necessary to
constitutionally seize and search a person or property. Alvarado,
667 N.E.2d at 859-60. This makes eminent sense given that an
officer on the streets generally has no way of knowing whether a
person's "mere possession" of a firearm comports with the state's
regulatory requirements. See, e.g., Commonwealth v. Couture, 552
N.E.2d 538, 540 (Mass. 1990) (defendant was merely "seen in public
with a handgun" and police "had no reason to believe . . . that the
defendant had no license to carry a firearm"); Commonwealth v.
Toole, 448 N.E.2d 1264, 1268 (Mass. 1983) (police "apparently never
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asked the defendant whether he had a license to carry a firearm"
but instead unlawfully searched the vehicle for one without any
basis for a reasonable suspicion of unlawful possession). And, the
SJC has made it clear that its Fourth Amendment decisions do not
confuse or otherwise alter its Jones due process precedent. See
Commonwealth v. Gouse, 965 N.E.2d 774, 803 n.17 (Mass. 2012);
Couture, 552 N.E.2d at 540-41. Ultimately, in Massachusetts the
presumed baseline of lawful possession afforded to an individual
for Fourth Amendment purposes falls away in a criminal prosecution
where a person stands at trial accused of unlawful firearms
possession and makes no attempt to produce evidence of proper
licensure.
Powell, therefore, does not establish any irreconcilable
conflict embedded within state case law, much less one that might
allow us to disregard Jones and its progeny. See Mullaney, 421
U.S. at 691 & n.11 (referencing "obvious subterfuge" as an example
of "extreme circumstances" that may warrant setting aside state
court exposition of state law); see also McMillan v. Pennsylvania,
477 U.S. 79, 89 n.5 (1986) (in discrediting a subterfuge-type
argument, the Supreme Court "reject[ed] the view that anything in
the Due Process Clause bars States from making changes in their
criminal law that have the effect of making it easier for the
prosecution to obtain convictions").
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Powell next faults the SJC for neglecting to "analyze the
effect of the indictment or complaint listing the ingredients or
elements of the crime," as he purports is required by Apprendi and
Blakely. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely
v. Washington, 542 U.S. 296 (2004). He sees the Apprendi and
Blakely holdings as somehow requiring that language in a charging
instrument modify the legal elements for a criminal offense
prescribed under law and points to language in his criminal
complaint that expressly references the absence of a license and an
FID card. Neither decision, however, bears this weight. See
Apprendi, 530 U.S. at 468-69, 477, 484-88, 490-96 (evaluating the
constitutionality of a criminal procedure set forth under the state
statutes, not the indictment); Blakely, 542 U.S. at 301, 303-04(applying Apprendi rule to hold that a jury finding required for a
fact that enhances a sentence beyond the statutory maximum of the
standard range). Moreover, the Apprendi Court stressed that the
Winship due process issue that it faced did not "raise any question
concerning the State's power to manipulate the prosecutor's burden
of proof by, for example, relying on a presumption rather than
evidence to establish an element of an offense, or by placing the
affirmative defense label on at least some elements of traditional
crimes." 530 U.S. at 475 (internal citations and quotation marks
omitted). Therefore, we see no error, let alone objectively
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unreasonable error, in the district court's decision to omit
Apprendi and Blakely from its due process analysis.
Bound as we are by state precedent on the meaning and
functionality of state criminal law and procedure, the decisive §
2254 inquiry for us is this: whether the SJC's decision that the
state law prescription of licensure as an affirmative defense
(imposing only a burden of production, not persuasion, on a
defendant) accords with procedural due process under the Federal
Constitution is contrary to, or comprises an unreasonable
application of, clearly established Supreme Court precedent. To
this legitimate question, Powell weakly criticizes the SJC's
allegiance to the due process analysis in Jones. He contends that
the SJC in his direct appeal failed to account for that court's
error in Jones in tying its due process analysis to the so-called
"comparative convenience" test under Morrison v. California, 291
U.S. 82 (1933). We are not persuaded of any objectively
unreasonable legal error.
It is true that the Jones court took its cue from
Morrison, which discusses the "limits of reason and fairness" under
due process for placing the burden of production on an accused in
a criminal case. See Jones, 361 N.E.2d at 1311-12. The state
court relied on the following guideposts as set forth in Morrison:
The limits are in substance these, that the
state shall have proved enough to make it just
for the defendant to be required to repel what
has been proved with excuse or explanation, or
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at least that upon a balancing of convenience
or of the opportunities for knowledge the
shifting of the burden will be found to be an
aid to the accuser without subjecting the
accused to hardship or oppression.
. . .
For a transfer of the burden, experience must
teach that the evidence held to be inculpatory
has at least a sinister effect or if this at
times be lacking, there must be in any event a
manifest disparity in convenience of proof and
opportunity for knowledge as, for instance,
where a general prohibition is applicable to
every one who is unable to bring himself
within the range of an exception.
Morrison, 291 U.S. at 88-89, 91 (internal quotation marks and
brackets omitted) (emphasis added); see Jones, 361 N.E.2d at 1312(quoting Morrison). After reaffirming that the section 10 firearms
offense is in the line of general prohibition crimes, the SJC then
analyzed the due process question under the comparative convenience
test. Jones, 361 N.E.2d at 1312-13.
In particular, the Jones court considered the relative
procedural burdens imposed by the section 7 criminal procedure
provision, including that (i) various licensing authorities
statewide issued and renewed licenses, (ii) an accused could
produce evidence of license without testifying and with relative
ease as compared to the prosecutor, and (iii) the state's statutory
scheme merely required evidence of license in court rather than
when first confronted by law enforcement in order to avoid criminal
conviction based on "the minor mistake of leaving the license at
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home." Id. It also considered the scant risk of erroneous
conviction, remarking that: "We find it nearly impossible to
believe that [the accused] had such a license but withheld it,
subjecting himself to the risk of a mandatory term of imprisonment"
-- "'[s]uch an absurd game does not contribute to a search for
truth . . . .'" Id. (quoting Williams v. Florida, 399 U.S. 78, 82
(1970)). In the end, the Jones court found "no unfairness in [its]
traditional rule." Id.Given that the section 10 firearms offense remains a
general prohibition crime in the Commonwealth, it comes as no
surprise to us that the SJC in Powell's direct appeal decided to
abide by the due process analysis in Jones. Cf. Morrison, 291 U.S.
at 91-93 (holding that the state crime under review was not one of
"general prohibition" before considering whether the evidence had
any "sinister significance" in relation to the presumed culpability
component). Moreover, between the time of Jones and Powell's
direct appeal, the Supreme Court's precedent has developed
significantly in the field of state law affirmative defenses that
fully satisfy the Winship baseline demand. See, e.g., Gilmore v.
Taylor, 508 U.S. 333, 341 (1993); Medina, 505 U.S. at 445-46;
Martin v. Ohio, 480 U.S. 228, 233-35 (1987); Patterson v. New York,
432 U.S. 197, 210 (1977). This precedent on affirmative defenses
provides ready support for concluding that the SJC's due process
ruling in Powell's direct appeal is not objectively unreasonable.
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See Patterson, 432 U.S. at 210 (holding that due process does not
create "a constitutional imperative, operative countrywide, that a
State must disprove beyond a reasonable doubt every fact
constituting any and all affirmative defenses related to the
culpability of an accused."); see also Martin, 480 U.S. at 233-35(upholding state statute that placed on the accused the burdens of
production and of persuasion beyond a reasonable doubt for self-
defense as an affirmative defense). Powell neither addresses this
clear Supreme Court precedent governing affirmative defenses, nor
cites even a single roughly comparable federal case in which a
state conviction secured under a statutory construct that is
analogous to Massachusetts law was set aside as violating the
Winship due process demands.5
Powell next faults the SJC for failing to account for the
advent of the computer age under the comparative convenience test
5
Powell contends that the SJC in his direct appeal ought to
have followed the "rational connection" test under Tot v. United
States, 319 U.S. 463 (1943) and United States v. Romano, 382 U.S.
136 (1965). However, this Supreme Court precedent is ill-fitted to
the due process question for the Massachusetts firearms crime,
because both cases involved state statutory schemes that relieved
the prosecutor from proving an element of the crime; neither
involved statutory affirmative defenses. See Tot, 319 U.S. at 464(statute set forth that mere possession of the firearm served as
presumptive proof that it was "shipped or transported in interstate
or foreign commerce," an element of the offense); Romano, 382 U.S.
at 137 n.2, 137-38 (statute set forth that mere unexplained
presence at the site of an illegal alcohol still served as
sufficient proof that the still or distilling apparatus was "in his
possession or custody, or under his control," an element of the
offense).
-21-
applied in Jones. Because nearly forty years has passed since the
Jones decision, Powell contends that prosecutors now would no
longer bear a significant burden in having to present evidence that
a particular firearm is unlicensed. His understanding of the
modern day burden for a prosecutor to discover licensing evidence
does not square with the SJC's, however. See Gouse, 965 N.E.2d at
805-06 ("review[ing] the department's records and the police
departments in any towns or cities in which the defendant may have
lived" would comprise "a daunting task [where] the defendant may
have assumed an alias or resided at different, or suspect
locations"). Powell also ignores this state authority and
otherwise fails to offer any sound basis that might compel us to
disregard the SJC's own assessment on the current practical
workings of the state licensing system, let alone give reason to
find that the SJC's decision in the direct appeal was objectively
unreasonable.
In the end, the due process question here evokes the type
of constitutional standard established by the Supreme Court that
permits a fair amount of latitude in the exercise of sound
decisional judgment. See Medina, 505 U.S. at 445-46; McMillan, 477
U.S. at 91; Sanna v. Dipaolo, 265 F.3d 1, 13 (1st Cir. 2001). Even
to the extent that "it is a close question whether the state
decision is in error," such is not the threshold required for
establishing an objectively unreasonable application of federal law
-22-
under AEDPA. Morgan, 677 F.3d at 47 (internal quotation marks
omitted). Accordingly, we hold that Powell's due process claim
provides no basis for granting § 2254 habeas relief.
B. Second Amendment
Powell next seeks § 2254 habeas relief on the basis that
his state firearms convictions violate his right to keep and bear
arms under the Second Amendment. He presents two claims; the first
challenges the minimum age requirements for state firearms
licensure (with a related equal protection claim), and the second
revisits the section 7 criminal procedure provision through a
different constitutional prism. For both, Powell stands on the
nascent Supreme Court precedent establishing that the Second
Amendment secures a limited individual right to keep and bear arms
for self-defense of hearth and home unconnected to organized
militia. Heller, 554 U.S. 570; see McDonald, 561 U.S. 742 (holding
that the Second Amendment fully applies to state and local
regulation through the Fourteenth Amendment). We address each in
turn.
1. Minimum Age Qualifications
A qualified applicant who is at least fifteen years of
age may obtain an FID card for possession of a firearm in the home
or business premises but must be at least twenty-one years of age
in order to obtain a license to publicly carry a firearm. See
Mass. Gen. Laws ch. 140, §§ 129B(1)(v), 131(d). Powell contends
-23-
that this age-based distinction unlawfully effects "[an] absolute
prohibition of an entire class of law-abiding adults from bearing
arms," namely, those who are eighteen-to-twenty years old, and,
thus, runs contrary to his Second Amendment and Equal Protection
rights. We, however, agree with the Commonwealth that these
federal constitutional claims are barred by the procedural default
rule.
A federal court generally will not review a § 2254 habeas
claim when the state court's decision for that claim rests on a
state law ground that is independent of the federal question and
adequate to support the judgment. Martinez v. Ryan, 132 S. Ct.
1309, 1315-16 (2012); see Hodge v. Mendonsa, 739 F.3d 34, 44 (1st
Cir. 2013). Grounded in comity and federalism, the procedural
default rule bars § 2254 habeas relief "when a state court declined
to address a prisoner's federal claims because the prisoner had
failed to meet a state procedural requirement." Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991), limited in part by Martinez,
132 S. Ct. at 1319; Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st
Cir.), cert. denied, 134 S. Ct. 434 (2013).
In Massachusetts, "[o]nly one whose rights are impaired
by a statute can raise the question of its constitutionality, and
he can object to the statute only as applied to him." Commonwealth
v. Gordon, 242 N.E.2d 399, 401 (Mass. 1968); see Commonwealth v.
Brunelle, 277 N.E.2d 826, 830 (Mass. 1972). A criminal defendant
-24-
who is charged with violating a licensing statute may challenge the
underlying state legislation "even in the absence of an application
for a license," but the scope of that state judicial review has its
limits. Gordon, 242 N.E.2d at 401. In such cases, the SJC
restricts its attention to the particular statutory provisions that
are actually implicated by the charged unlicensed activity and
declines to address provisions that do not represent injury
incurred by virtue of the particular conviction secured against
that defendant. See id. 401-02.
Here, the SJC in Powell's direct appeal followed this
state norm when declining to review the merits of Powell's age-
based claims. Powell's criminal convictions rested on his conduct
of publicly carrying a loaded firearm without authorization, and
his lack of licensure was presumed due to his failure to produce
proof on that affirmative defense. When considering Powell's
argument that his firearms convictions must be reversed because the
minimum age qualification was unconstitutional, the SJC immediately
noted that Powell had not applied for a firearms permit and had
failed to demonstrate that he would have been denied licensure
based solely on his age. See Powell, 946 N.E.2d at 129-30 (citing
Jackson, 344 N.E.2d at 169-70 n.3). The state court ruled,
therefore, that Powell's narrow constitutional challenge to his
convictions was foreclosed. See id.-25-
In so holding, the SJC recognized that even if the age-
based claims had merit, Powell's firearms convictions would remain
intact given the various eligibility requirements left unchallenged
that might very well operate to legitimately deny him a license,
such as being a "suitable" person. See Mass. Gen. Laws ch. 140, §
131(d). In other words, the court essentially held that the
purportedly unconstitutional minimum age requirement, standing
alone, did not necessarily injure Powell by rendering the
convictions themselves unconstitutional. We conclude that the
SJC's decision declining to address the merits of the federal
constitutional questions rested on an adequate and independent
state law ground that bars our review of Powell's constitutional
claims.
Powell seeks to excuse his state court default by relying
on the futility doctrine. See Hodge, 739 F.3d at 43 (federal court
may excuse state court default where a petitioner shows cause and
actual prejudice). His argument is misplaced, however. Although
federal courts may apply the futility doctrine in narrow
circumstances for the federal exhaustion requirement, see Allen v.
Attorney General of State of Me., 80 F.3d 569, 573 (1st Cir. 1996),
Powell provides no authority to establish that the doctrine has any
bearing on the excuse inquiry. Indeed, not one of the cases that
he cites involves a § 2254 habeas petition, and our own research
casts significant doubt on his presumed legal position. See
-26-
Berkley v. Quarterman, 310 F. App'x 665, 672-73 (5th Cir.), cert.
denied, 558 U.S. 843 (2009) (declining to recognize a futility
exception for the state procedural default rule).
Powell's cursory argument on prejudice also fails. By
leaving untouched the various eligibility requirements for securing
a license to publicly carry a loaded weapon, a successful
constitutional challenge to the state's minimum age qualification
alone does not necessarily demonstrate illegal state confinement.
See 28 U.S.C. § 2254(a); Allen, 442 U.S. at 154-55 (for a § 2254
petition, "[a] party has standing to challenge the
constitutionality of a statute only insofar as it has an adverse
impact on his own rights").6
Accordingly, we are foreclosed from reaching the merits
of Powell's constitutional attacks on the minimum age qualification
for obtaining a license to publicly carry a firearm in
Massachusetts.
2. Criminal Procedure Provision
Powell next revisits the section 7 criminal procedure
provision, arguing that the lack of license presumption infringes
on his Second Amendment rights as secured under Heller and
McDonald. According to Powell, these decisions "restored the
6
Powell's other sundry arguments for halting the procedural
default bar wholly lack merit and do not warrant extended
attention.
-27-
presumption of innocence, invalidating statutes like [section 7]"
that impose criminal punishment on persons "simply for exercising
their Second Amendment rights." The Commonwealth agrees that we
ought to afford his claim de novo review, because the SJC's
decision is silent on this constitutional claim. See Clements v.
Clarke, 592 F.3d 45, 52, 54 (1st Cir. 2010). Even without the
constraints of AEDPA, however, Powell's claim quickly crumbles.
Powell attempts to launch a Second Amendment attack on
the method or legislative design by which the Commonwealth has
chosen to criminally enforce its firearms licensing scheme. He
avers that the viability of his claim does not necessarily "depend
upon whether the Second Amendment right extends outside the home,"
because he reads the Heller/McDonald decisions as affirmatively
precluding states from "impos[ing] a general prohibition against
carrying a firearm" and from "proscrib[ing] carrying a firearm,
alone, as an inherently dangerous act [that is] subject to criminal
prosecution."7 But, in the midst of his iterations on the holdings
of Heller and McDonald, Powell underscores that he is not
"challeng[ing] the licensing scheme as a whole" nor arguing that
"generally requiring firearm owners to obtain licenses and
7
As earlier noted, the state firearms offense is a public
welfare or general prohibition offense designed "to control the
carrying of firearms so as to protect the public from the potential
danger incident to [their] unlawful possession." Commonwealth v.
Jefferson, 965 N.E.2d 800, 808 (Mass. 2012) (internal quotation
marks and ellipses omitted); see Commonwealth v. Young, 905 N.E.2d
90, 96 (Mass. 2009); Davis, 270 N.E.2d at 926.
-28-
registration cards violates the Second Amendment." Thus, on close
inspection, Powell's claim is nothing more than a hollow
recapitulation of his procedural due process claim in Second
Amendment garb, and its fate is the same.
Nowhere in its dual decisions did the Supreme Court
impugn legislative designs that comprise so-called general
prohibition or public welfare regulations aimed at addressing
perceived inherent dangers and risks surrounding the public
possession of loaded, operable firearms. Rather, the Court
attended to legislative substance and endorsed the continuing
viability of a range of state firearms regulations without
endeavoring to draw Second Amendment lines for state legislative
architecture. See Heller, 554 U.S. at 626-27; McDonald, 130 S. Ct.
at 3047. In fact, along its sojourn, the Court recognized that
states have historically executed firearms regulation through
general prohibition public safety laws. See Heller, 554 U.S. at
631-32.
Powell's reliance on Herrington v. United States, 6 A.3d
1237 (D.C. 2010), also does not help him. There, the D.C. Court of
Appeals reversed a defendant's conviction for unlawful possession
of ammunition that rested on a general prohibition criminal statute
in which the accused had the burden of proving registration as an
exception or affirmative defense. 6 A.3d at 1240-47. Significant
to the court, the defendant was convicted for unlawfully possessing
-29-
handgun ammunition in his home, and the court restricted the reach
of its holding to the statute of conviction as applied to the
defendant. Id. at 1242-45. It held that "the Second Amendment
guarantees a right to possess ammunition in the home that is
coextensive with the right to possess a usable handgun there," id.
at 1243, and "express[ed] no opinion as to whether the [D.C.]
statute is constitutional in other applications [such as when]
applied to possession of handgun ammunition outside the home," id.
at 1244, n.25. Herrington, therefore, has no bearing on Powell's
convictions which rest on publicly carrying a loaded firearm
without a license.8
More fundamentally, given the public sphere context for
his firearm possession, Powell provides us with no basis for
concluding that his convictions could even reach the safe haven of
the Second Amendment. He boldly -- and wrongly -- pronounces that
the Supreme Court in Heller "clearly established that the right to
keep and bear arms encompasses one's 'person' unrelated to the
home." (Emphasis in original.) We flatly reject his read.
8
The D.C. court also included in its analysis numerous
caveats beyond the home-versus-public distinction. It took note,
for example, that in the District of Columbia, the relative burden
of producing licensing paperwork remained in equipoise between the
government and the defense. Herrington, 6 A.3d at 1245 n.30; see
Brown v. United States, 66 A.2d 491, 494 (D.C. 1949) (unlike most
states, only one licensing authority exists in the relatively small
geographical area of the District of Columbia and that entity
annually issues only a small number of licenses). This is markedly
different from the burden faced by law enforcement in
Massachusetts. See Gouse, 965 N.E.2d at 805-06.
-30-
Together, Heller and McDonald establish that states may not impose
legislation that works a complete ban on the possession of operable
handguns in the home by law-abiding, responsible citizens for use
in immediate self-defense. See Heller, 554 U.S. at 628-32, 635-36;
McDonald, 130 S. Ct. at 3036-46, 3050; see Hightower, 693 F.3d at
72; Booker, 644 F.3d at 22, 25 n.17. The neoteric decisions
addressed only the setting of "us[ing] arms in defense of hearth
and home," left open for future cases the sort of judicial review
to be applied to other firearms regulation, and firmly disavowed
any notion that an individual has a constitutional right "to keep
and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose." See Heller, 554 U.S. at 626-35; McDonald, 130
S. Ct. at 3047, 3050; see also Booker, 644 F.3d at 22.9
9
Several circuits have adopted a two-part framework for
evaluating a claim of Second Amendment infringement in the post-
Heller era. Broadly speaking, some courts first consider whether
the challenged law imposes a burden on conduct that falls within
the scope of the Second Amendment's guarantee as historically
understood, and if so, courts next determine the appropriate form
of judicial scrutiny to apply (typically, some form of either
intermediate scrutiny or strict scrutiny). See, e.g., Jackson v.
City and County of San Francisco, 746 F.3d 953, 962-63 (9th Cir.
2014), petition for cert. filed, (U.S. Dec. 12, 2014) (No. 14-704);
Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013), cert. denied, 134
S. Ct. 2134 (2014); Woollard v. Gallagher, 712 F.3d 865, 874-75
(4th Cir.), cert. denied, 134 S. Ct. 422 (2013); Nat'l Rifle Assn'n
of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 194 (5th Cir. 2012), cert. denied, 134 S. Ct. 1364(2014); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.),
cert. denied, 133 S. Ct. 375 (2012); Heller v. District of
Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (Heller II); Ezell
v. City of Chicago, 651 F.3d 684, 701–04 (7th Cir. 2011); United
States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010), cert.
denied, 131 S. Ct. 2476 (2011); United States v. Marzzarella, 614
-31-
While the Supreme Court spoke of a right of law-abiding,
responsible citizens to keep and bear arms "in case of
confrontation" outside the context of an organized militia, Heller,
554 U.S. at 582-92; see McDonald, 130 S. Ct. at 3036-42, 3048, it
did not say, and to date has not said, that publicly carrying a
firearm unconnected to defense of hearth and home and unconnected
to militia service is a definitive right of private citizens
protected under the Second Amendment. Debate continues among
courts. Compare Peruta v. County of San Diego, 742 F.3d 1144,
1149-66 (9th Cir. 2014), request for rehearing en banc granted,
2015 WL 1381752 (9th Cir. Mar. 26, 2015) (No. 10-56971); Drake v.
Filko, 724 F.3d 426, 430-31 (3d Cir. 2013), cert. denied, 134 S.
Ct. 2134 (2014); Woollard, 712 F.3d at 874-76; Moore v. Madigan,
F.3d 85, 89 (3d Cir. 2010), cert. denied, 131 S. Ct. 958 (2011);
cf. Kwong v. Bloomberg, 723 F.3d 160, 167 (2d Cir. 2013), cert.
denied, 134 S. Ct. 2696 (2014); United States v. Bena, 664 F.3d
1180, 1182-85 (8th Cir. 2011); United States v. Skoien, 614 F.3d
638, 639–43 (7th Cir. 2010) (en banc). See also Tyler v. Hillsdale
County Sheriff's Dept., 775 F.3d 308, 318 (6th Cir. 2014) ("There
may be a number of reasons to question the soundness of [the] two-
step approach" adopted by various circuits.).
We thus far have entered the discourse on few occasions,
mostly in direct appeals of federal firearms convictions, and have
hewed closely and cautiously to Heller's circumscribed analysis and
holding. See United States v. Carter, 752 F.3d 8 (1st Cir. 2014);
United States v. Armstrong, 706 F.3d 1, 3-8 (1st Cir. 2013),
vacated and remanded on other grounds, 134 S. Ct. 1759 (2014)
(Mem.) (citing United States v. Castleman, 134 S. Ct. 1405 (2014));
United States v. Rehlander, 666 F.3d 45, 48-50 (1st Cir. 2012);
United States v. Booker, 644 F.3d 12, 15-26 (1st Cir. 2011), cert.
denied, 132 S. Ct. 1538 (2012); United States v. Rene E., 583 F.3d
8, 16 (1st Cir. 2009), cert. denied, 558 U.S. 1133 (2010); cf.
Hightower, 693 F.3d 61.
-32-
702 F.3d 933, 935-36 (7th Cir. 2012), with Peruta, 742 F.3d at
1179-91 (Thomas, J., dissenting); Drake, 724 F.3d at 444-46
(Hardiman, J., dissenting); Moore, 702 F.3d at 944-49 (Williams,
J., dissenting); see also United States v. Masciandaro, 638 F.3d
458, 467-68, 474-76 (4th Cir. 2011).10
Perhaps recognizing that we would reject his argument
that Heller and McDonald reach so far, Powell nevertheless invites
us to hold that the limited Second Amendment right as articulated
in Heller extends outside the vicinity of the home. We decline to
do so.
This circuit has yet to weigh in on "the scope of the
Second Amendment as to carrying firearms outside the vicinity of
the home without any reference to protection of the home."
Hightower, 693 F.3d at 72. Thus far, we have held that any
10
We are not sanguine about the Ninth Circuit's
characterization that a "consensus" has developed among the
circuits regarding some limited right under the Second Amendment to
keep and bear operable firearms outside the home for the purpose of
self-defense. See Peruta, 742 F.3d at 1166. True, the Seventh
Circuit in Moore held as the Ninth Circuit posits, at least to a
limited degree. See United States v. Williams, 731 F.3d 678, 693-
94 (7th Cir. 2013) (Hamilton, J., concurring in part and in the
judgment). However, the remaining three circuits identified merely
assumed for analytical purposes, without deciding, that the limited
Second Amendment individual right described in Heller extended
somewhat beyond the hearth and home setting. See Drake, 724 F.3d
at 430-31; Woollard, 712 F.3d at 874, 876; Kachalsky v. Cnty. of
Westchester, 701 F.3d 81, 89 (2d Cir. 2012); see also Hightower,
693 F.3d at 72 n.8, 74 (declining to decide public sphere question,
and assuming without deciding some Second Amendment interest in
publicly carrying a concealed weapon).
-33-
individual right "in carrying concealed weapons outside the home is
distinct from [the] core interest emphasized in Heller," and that
under Heller, "[l]icensing of the carrying of concealed weapons is
presumptively lawful." See id. at 72-74 & n.8. Yet, Powell offers
only a meager measure of briefing, about one page, to support his
rather significant request. He cites two decisions in which the
Seventh and Ninth Circuits ventured into the topic of putative gun
rights in the public sphere as prompted by the holistic,
substantive effect of the regulations challenged before them. See
Moore, 702 F.3d 933; Peruta, 742 F.3d 1144.11 Powell's slight
advocacy, however, makes his coquetry the proper candidate for
appellate waiver. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990); cf. Moore, 702, F.3d at 935 ("The parties and the
amici curiae have treated us to hundreds of pages of argument, in
nine briefs" as advocacy on Second Amendment rights in the public
sphere.).
11
See Peruta, 742 F.3d at 1169-71 (county regulation barred
a typical, law-abiding citizen fearing for his personal safety from
accessing a concealed-carry license, and "open carry" was otherwise
prohibited); Moore, 702 F.3d at 940 ("Illinois is the only state
that maintains a flat ban on carrying ready-to-use guns outside the
home . . . [n]ot even Massachusetts has so flat a ban as
Illinois"); see also Holden, 26 N.E.3d at 726 (emphasizing that
Massachusetts law does not absolutely prohibit handguns in the home
nor ban ready-to-use firearms in public).
-34-
All told, we conclude that Powell's Second Amendment
claim provides no grounding for setting aside his state firearms convictions.
C. Sixth Amendment Right to Counsel
Powell's ineffective assistance of counsel claim relates
to his trial counsel's failure to move to suppress his statement in
which he denied to the arresting officer that he had possessed a
firearm, without the benefit of Miranda warnings. The SJC rejected
his constitutional claim on the basis that the allegedly deficient
performance of counsel caused Powell no prejudice, because there
was evidence that the police officers saw Powell holding a firearm
and that he attempted to conceal a gun and evade the police while
doing so. Powell, 946 N.E.2d at 125; see Jackson, 344 N.E.2d at
174 (prosecution must prove that the accused "knew that he was
carrying a firearm" and need not prove that the accused knew he
lacked a license to possess and carry a firearm).12
Although Powell agrees that the state court decision is
reviewed under AEDPA, he fails to indicate how it is "contrary to,
or involved an unreasonable application of, clearly established
Federal law" as determined by the Supreme Court. 28 U.S.C.
12
The SJC decided the constitutional issue under the
Massachusetts standard which generally inquires whether there has
been serious deficiency of counsel and whether such substandard
performance "likely deprived the defendant of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 315 N.E.2d 878, 883 (Mass. 1974). The law of our circuit
is that this Massachusetts standard is the functional equivalent of
the federal Strickland standard. Ouber v. Guarino, 293 F.3d 19, 32
(1st Cir. 2002).
-35-
§ 2254(d). Indeed, he does not cite to any Supreme Court
authority, such as Cullen v. Pinholster, 131 S. Ct. 1388 (2011),
Kimmelman v. Morrison, 477 U.S. 365 (1986), or Strickland v.
Washington, 466 U.S. 668 (1984), to grapple with the SJC's analysis
at all. See Lopez, 135 S. Ct. at 3 (reminding that Supreme Court
precedent serves as the benchmark for securing § 2254 relief).
Accordingly, we deem his argument waived. See Glacken, 585 F.3d at
552.
III. Conclusion
Powell's petition gives no grounding for setting aside
his state firearms convictions. Accordingly, we affirm the
district court's decision to deny his § 2254 petition.
So ordered.
- Dissenting Opinion Follows -
-36-
TORRUELLA, Circuit Judge, Dissenting. In my view, Powell
is entitled to habeas based on his due process claim.
The SJC's adjudication of that claim consisted of a
reference to Commonwealth v. Jones, 361 N.E.2d 1308 (Mass. 1977) to
support the proposition that, because absence of a license13 is not
"an element of the crime," id. at 1311, the burden-shifting device
created by Massachusetts General Laws chapter 278, section 7
accords with due process. Commonwealth v. Powell, 946 N.E.2d 114,
124 (Mass. 2011), cert. denied, 132 S. Ct. 1739 (2012). The task
of assessing whether this part of the SJC's decision was contrary
to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court, see 28 U.S.C.
§ 2254(d)(1), is complicated by the fact that the precise role of
licensure under the Massachusetts scheme is unsettled,
notwithstanding Jones's statement. If licensure is an affirmative
defense under the Massachusetts scheme, that scheme must accord
with the Supreme Court's doctrine on affirmative defenses. On the
other hand, if licensure is an element of the offense that is
subject to proof by presumption under the Massachusetts scheme,
that scheme must accord with the Supreme Court's doctrine on
presumptions. In my opinion, Jones and subsequent SJC cases,
13
The difference between a Firearm Identification Card ("FID
card") and a license is not important to my analysis, nor is the
difference between possessing and carrying. For simplicity I refer
to Powell as having been charged with "possessing a firearm without
a license."
-37-
including Powell's, have not spoken clearly on this point, as the
district court in this case recognized. See Powell v. Tompkins,
926 F. Supp. 2d 367, 374-75 (D. Mass. 2013). My first task,
therefore, is to determine the role of licensure under the
Massachusetts scheme.
I. Role of Licensure Under Massachusetts Scheme
I agree with the district court that the text both of
Powell's criminal complaint and of the statutes under which he was
charged indicates that lack of a license is an element of the
offense. The titles of the relevant counts are "Firearm Without
FID Card, Possess" and "Firearm, Carry Without License." (emphasis
added). Likewise, the descriptions of the counts against Powell
repeat the "without a license" phrase. Furthermore, one of the
relevant statutes provides: "Whoever . . . possesses . . . a
firearm . . . without complying with the [FID card]
provisions . . . shall be punished by imprisonment . . . ." Mass.
Gen. Laws ch. 269, § 10(h)(1) (emphasis added). The other relevant
statute provides: "Whoever . . . has in his possession . . . a
firearm . . . without . . . having in effect a license . . . shall
be punished by imprisonment . . . ." Id. § 10(a) (emphasis added).
Reading the text of these counts and statutes to say that
lack of a license is an element of the offense might appear
inconsistent with the text of Massachusetts General Laws chapter
278, section 7, but it is not. That section provides: "A defendant
-38-
in a criminal prosecution, relying for his justification upon a
license . . . , shall prove the same; and, until so proved, the
presumption shall be that he is not so authorized." Id. ch. 278,
§ 7. By its own terms, the requirement that a defendant prove a
license applies only to "[a] defendant . . . relying for his
justification upon a license." Id. (emphasis added). To rely on
a license for a "justification," as that term is generally
understood in criminal law, means to rely on a license for a
defense. See Model Penal Code § 3.01(1) ("[J]ustification is an
affirmative defense."); Black's Law Dictionary 977 (10th ed. 2014)
(defining "justification" as "[a] showing, in court, of a
sufficient reason why a defendant acted in a way that, in the
absence of the reason, would constitute the offense with which the
defendant is charged"). To say that a defendant must prove
licensure in those instances when he relies on a license for his
defense implies that there may be other instances in which
licensure is not viewed as a defense, and in those instances the
defendant may not need to prove it. Otherwise, there would have
been no need for the legislature to include the limiting language.
See Ropes & Gray LLP v. Jalbert, 910 N.E.2d 330, 336 (Mass. 2009)
(recognizing that under Massachusetts law statutes are construed to
avoid surplusage). Thus, the text of section 7, standing alone, is
not probative of whether licensure is an element or a defense in
the particular context of gun possession crimes.
-39-
Moreover, other cases, distinguishable from Powell's,
exemplify how licensure might be raised as a defense, triggering
application of section 7. Before introducing these cases, it
should be noted that section 7 is a section of general
applicability, appearing in the chapter governing trial procedure
and proceedings before judgement. See Mass. Gen. Laws ch. 278.
The section's full title is, "Burden To Prove License or Admission
To Practice as Attorney at Law," and, in its entirety, it provides,
"A defendant in a criminal prosecution, relying for his
justification upon a license, appointment, admission to practice as
an attorney at law, or authority, shall prove the same; and, until
so proved, the presumption shall be that he is not so authorized."
Id. § 7.
In Commonwealth v. O'Connell, the defendant was convicted
of forgery. See 783 N.E.2d 417, 422 (Mass. 2003). The
Massachusetts statute criminalizing forgery provides: "Whoever,
with intent to injure or defraud, falsely . . . forges . . .
[certain types of documents] shall be punished by
imprisonment . . . ." Mass. Gen. Laws ch. 267, § 1. According to
the SJC: "The elements of the crime of forgery are (1) falsely
making all or part of a document or instrument; (2) with the intent
to defraud." O'Connell, 783 N.E.2d at 424 n.9 (citation omitted).
Despite the fact that the criminal prohibition does not mention
"authority" (which, under section 7, is the equivalent of
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licensure), the defendant in O'Connell tried to argue that lack of
authority to create the relevant documents was an element of the
crime, requiring proof by the prosecution. The SJC disagreed. See
id. at 423-24. Citing section 7, the SJC said that "authority may
be raised as a defense, and, if so raised, the Commonwealth then
bears the burden of proving beyond a reasonable doubt the absence
of authority." Id. at 424.
Similarly, in Commonwealth v. Brunelle, the defendant was
convicted of performing an illegal abortion. See 277 N.E.2d 826,
828 (Mass. 1972). The relevant statute provides, "[w]hoever, with
intent to procure the miscarriage of a woman, unlawfully
administers to her, or advises or prescribes for her, or causes any
poison, drug, medicine or other noxious thing to be taken by
her . . . shall . . . be punished by imprisonment . . . ." Mass.
Gen. Laws ch. 272, § 19. Notably, the statute does not say that
performing any of these actions "without a license" or "without
authority" constitutes the crime. As the SJC explained, citing
section 7, "[i]n [a] prosecution under c. 272, s 19, [the
defendant] had the burden of coming forward with evidence that he,
in some circumstances, might have . . . a defence or justification
for acting in apparent violation of the broad prohibition in s 19
(as, for example, showing that he had a license to practice
medicine in Massachusetts) . . . ." Brunelle, 277 N.E.2d at 829.
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Unlike the statutes under which Powell was convicted, the
statutes at issue in O'Connell and Brunelle did not include the
"without a license" language. It was thus clear in those cases,
unlike in Powell's, that, were the defendant to invoke licensure,
he would need to do so as a defense, triggering application of
section 7.
In short, if determining the elements of the gun
possession offense depended only on reading the criminal complaint
and statutes, I would hold that lack of a license is an element of
the crime. But I do not write on a clean slate: The SJC in Jones
said that lack of a license is not an element of the offense. 361
N.E.2d at 1311. The district court here noted this Massachusetts
state court interpretation, but afforded it no deference on the
ground that it "def[ied] the plain reading of both the relevant
firearms statutes and Powell's criminal complaint." Powell, 926 F.
Supp. 2d at 375. I conclude that the SJC's statement in Jones does
not preclude the determination that lack of a license is an element
of the offense, but I do not adopt the district court's reasoning.
A federal court on habeas review cannot ignore a high court's
interpretation of its state's statutes simply because, in the
federal court's opinion, that interpretation defies the statutes'
plain meaning. I agree that Jones's interpretation defies the
statutes' plain meaning, but that is not why I refuse to follow
Jones's statement. Instead, I feel free to depart from Jones
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because, as I detail below, since Jones was decided, the SJC has
not spoken uniformly on whether the lack of a license is an element
of the offense.
After Jones was decided, in Commonwealth v. Toole, 448
N.E.2d 1264 (Mass. 1983), the SJC was presented with the following
facts: After pulling over the defendant's truck, as part of a
routine frisk, a police officer found an empty holster and an
ammunition clip on the defendant's person. Id. at 1265-66. This
prompted the police to search the truck, revealing a firearm behind
the seat. Id. at 1266. After the search, the defendant was asked
if he had an FID Card, which he did not. Id. The SJC held that,
since there was no showing that the police had any reason to
believe that the defendant's possible possession of a gun was a
crime -- not having asked the defendant before the search whether
he had an FID card -- no probable cause or exigent circumstances
existed to justify the warrantless search. Id. at 1268. Said the
SJC:
The empty holster and ammunition found on the
defendant certainly created probable cause to
believe that there was a gun in the cab. But
carrying a .45 caliber revolver is not
necessarily a crime. A possible crime was
carrying a gun without a license to carry
firearms. . . However, the police did not
learn that the defendant had no firearm
identification card until after the search.
Id. (citation omitted).
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Because Jones established that lack of a license could be
presumed to be an element of the offense, whereas Toole implied
that it could not, in Commonwealth v. Couture, the Commonwealth
argued that the two cases led to "an 'irrational' result, namely,
that a police officer in the street must show more in determining
that a gun is unlawfully carried than a prosecutor needs to prove
to obtain a conviction." 552 N.E.2d 538, 540 (Mass. 1990). The SJC
attempted to reconcile the cases as in the following manner:
Jones dealt with the allocation of burdens in
the context of a criminal trial. The
particular burden to which . . . Jones
pertains is not the burden of proof, but
merely the burden of coming forward with
evidence sufficient to raise an issue of fact.
. . Where the defendant at trial has had
every opportunity to respond to the
Commonwealth's charge that the defendant was
unlawfully carrying a handgun, where the
defendant need only produce that slip of paper
indicating that he was licensed to carry that
gun, and where instead the defendant produces
no evidence to that effect, the jury are
entitled to presume that the defendant indeed
did not have a license to carry the gun, and
the Commonwealth need present no additional
evidence to prove that point. This scenario
is a far cry from a defendant who, having
merely been seen in public with a handgun, and
without any opportunity to respond as to
whether he has a license, is forced out of his
vehicle at gunpoint and subjected to an
invasive search. . . . The mere possession of
a handgun was not sufficient to give rise to a
reasonable suspicion that the defendant was
illegally carrying that gun, and the stop was
therefore improper under Fourth Amendment
principles.
Id. at 540-41 (citation omitted).
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After Coutre, in Commonwealth v. Alvarado, the SJC
reiterated:
Carrying a gun is not a crime. Carrying a
firearm without a license (or other
authorization) is. . . . Carrying a weapon
concealed in a towel, a bag, or a knapsack,
for example, . . . is not a crime in this
State. The suspected crime in such
circumstances can only be the carrying of an
unlicensed weapon, because carrying a
concealed weapon is not, standing alone, an
indication that criminal conduct has occurred
or is contemplated.
667 N.E.2d 856, 859 (Mass. 1996).
Then, in Commonwealth v. Gouse, 965 N.E.2d 774 (Mass.
2012), the SJC attempted to downplay the significance of decisions
like Couture and Alvarado, which seemed to have called into
question Jones's statement that lack of a license is not an element
of the offense. There, the SJC concluded that the elements of the
offense are simply (1) possession of (2) a firearm, and said that
statements to the contrary made in other contexts "do[] not
diminish this conclusion with regard to the essential elements of
the crime." Id. at 787 n.17. Referring to Couture and Alvarado,
the SJC in Gouse said:
In those cases, we concluded that the mere
presence of a firearm without more did not
furnish probable cause or reasonable suspicion
sufficient to justify the seizure of an
individual by a police officer in the field;
we were not asked to examine the requirements
of § 10(a) in the context of the proof
necessary at a trial. There is, therefore, no
meaningful conflict between the manner in
which those cases, and the ones [that include
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the crime as consisting of only two elements],
describe the crime of unlawful possession of a
firearm. . . . Our respect for an
individual's rights under the Fourth
Amendment . . . against unreasonable searches
and seizures on the street has no bearing on
the allocation of burdens at trial.
Id. (citations omitted).
I recognize that it is the province of the states to
define crimes and defenses and to allocate burdens. But from what
I can tell, Massachusetts simply has not provided a clear
definition of the offense of illegal firearm possession. I
understand that protecting individuals' rights against unreasonable
searches and allocating burdens at trial are distinct enterprises,
but I do not see how this distinction permits a state court,
consistent with due process, to interpret a criminal statute to
have three elements in one context but to have only two elements in
another. See Johnson v. Goméz, No. C 96-2913 CAL, 1997 WL 703770,
at *7 (N.D. Cal. Oct. 28, 1997) (not reported), aff'd, 166 F.3d 343(9th Cir. 1998) ("A state court's determination that a statutory
provision does not characterize an element of the offense must
nonetheless comport with due process." (citing McMillan v.
Pennsylvania, 477 U.S. 79, 85-86 (1986)).
Here, this court is confronted with what, to my
knowledge, is a novel scenario: The state legislature made lack of
a license an element of the offense, whereas the state judiciary
has spoken ambiguously on the matter. It should be noted that when
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the Supreme Court has discussed states' authority to define crimes
and to allocate burdens in the past, the discussion has often
focused on the state's legislative, not judicial, branch. For
instance, in McMillan v. Pennsylvania, the Supreme Court said, "in
determining what facts must be proved beyond a reasonable doubt the
state legislature's definition of the elements of the offense is
usually dispositive: '[T]he 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.'" McMillan, 477 U.S. at 85 (emphasis added by McMillan)
(quoting Patterson v. New York, 432 U.S. 197, 210 (1977)).
I find it notable that in other states, the legislature's
and the judiciary's visions on this subject accord. Indeed, in
Gouse the SJC said that licensure as an affirmative defense to
firearm charges "has been fully recognized in other jurisdictions."
965 N.E.2d at 788. In support of this proposition, the SJC cited
cases from both Florida and Indiana. Id. An analysis of these
cases proves revealing.
From Florida, the SJC cited Watt v. State, 31 So. 3d 238(Fla. Dist. Ct. App. 2010), which itself quoted State v. Robarge,
450 So. 2d 855 (Fla. 1984). When Robarge arose in 1984, the
relevant Florida statute provided, "Whoever shall carry . . . any
pistol . . . without having a license . . . shall be guilty of a
misdemeanor . . . ." Fla. Stat. § 790.05 (repealed 1987). In
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Robarge, the State argued that licensure should be considered an
affirmative defense. 450 So. 2d at 856. The Supreme Court of
Florida first set out the general rule for determining whether a
statutory exception is an element of an offense or a defense: "[I]f
there is an exception in the enacting clause, the party pleading
must show that his adversary is not within the exception; but, if
there be an exception in a subsequent clause, or a subsequent
statute, that is [a] matter of defence [sic], and is to be shown by
the other party." Id. (quoting Baeumel v. State, 7 So. 371, 372
(1890)). Because, in the Florida statute, the phrase "without
having a license" "exception" appeared in the "enacting clause,"
the Robarge court held that the absence of a license was an element
of the crime. Id.Subsequent to Robarge, the Florida legislature amended
the statutory scheme. Today, one statutory section provides, "a
person who carries a concealed weapon . . . commits a misdemeanor."
Fla. Stat. § 790.01(1). In other words, the current statute
outrightly bans carrying, without any mention of licensure.
Another statutory subsection provides, "section [790.01] does not
apply to a person licensed to carry a concealed weapon . . .
pursuant to the provisions of s. 790.06." Id. § 790.01(3). In
turn, independent section 790.06(1) provides, "[a]ny person in
compliance with the terms of [a] license [to carry] may carry a
concealed weapon or concealed firearm notwithstanding the
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provisions of s. 790.01." Id. § 790.06(1) (emphasis added). These
independent provisions provide the affirmative defense to the
outright ban.
Watt v. State, the Florida case cited by the SJC in
Gouse, arose under this new statutory scheme. 31 So. 3d 238 (Fla.
Dist. Ct. App. 2010). There, the court said:
Under the terms of the concealed
weapon/firearm statute, the state does not
have the burden of proving the absence of a
license as an element of the crime. Rather,
proof of a license is pertinent only as an
affirmative defense. Generally, for a
statutory exception, such as a license, to
constitute a defense under Florida law, the
exception "must be in a clause subsequent to
the enacting clause of a statute." . . . The
license defense is in the subsequent
clause . . . . As such, it is an affirmative
defense, not an element of the crime.
Id. at 242 (footnote omitted)(citations omitted) (quoting Robarge,
450 So. 2d at 856). As the current Massachusetts scheme is akin to
the old Florida scheme -- lack of a license is mentioned in the
very section that creates the criminal offense -- the SJC's
reliance in Gouse on Florida cases was misplaced.
As for Indiana cases, the SJC in Gouse, 965 N.E.2d at
788, cited Taylor v. State, 578 N.E.2d 664 (Ind. 1991), which
itself cited Washington v. State, 517 N.E.2d 77 (Ind. 1987). The
Indiana statute at issue in both Taylor and Washington provides,
"[A] person shall not carry a handgun . . . without being
licensed." Ind. Code § 35-47-2-1(a). An independent section
provides, "[I]t is not necessary . . . to allege the absence of a
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license . . . . The burden of proof is on the defendant to
prove . . . that he has a license . . . ." Id. § 35-47-2-24(a).
In Washington, the Supreme Court of Indiana held that
lack of a license was not an element of the crime, and that
possession of a license was a defense on which the defendant bore
the burden of proof. 517 N.E.2d at 79. Four years later, in
Taylor, the Supreme Court of Indiana, in a three-two opinion,
reiterated that possession of a license was a matter for the
defendant to establish as an affirmative defense. 578 N.E.2d at
666 (citing id.). The dissent cited the following principle of
Indiana law: "When an offense is created by statute and another
statute or another section of the same statute makes exceptions
thereto, it is not necessary for the prosecution in the indictment
or affidavit to negate the exception by stating that the defendant
does not come within the same." Id. at 667 (DeBruler, J.,
concurring in part and dissenting in part) (quoting Day v. State,
241 N.E.2d 357, 359 (1968)). Because, in the Indiana statute, the
"without being licensed" language is found in the enacting clause,
the dissent argued that the prosecution should bear the burden of
establishing that the defendant lacked a license. Id. It
consequently called for Washington v. State to be overruled. Id.Several things about the Indiana scheme are notable.
First, the independent proviso in the Indiana code is clearer than
section 7 of chapter 278 in its intent to cast licensure as an
affirmative defense. It pertains only to gun possession
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prosecutions, appears in the same chapter as the substantive
prohibition, and explicitly relieves the prosecution of alleging
lack of a license. Unlike section 7, which, as discussed above,
applies only when licensure is raised as a defense, the Indiana
proviso explicitly makes licensure a defense. In addition, a
majority of the Indiana Supreme Court, unlike the SJC, has spoken
consistently with respect to the non-element status of licensure.
Moreover, despite this clarity and consistency, the proposition
that licensure is an affirmative defense garnered only a bare
majority of the Indiana Supreme Court in Taylor, and, so far as I
can tell, no federal court has been asked on habeas review to
assess whether Indiana's scheme comports with due process.
Given the clear text of Powell's criminal complaint and
the Massachusetts statutes, the unclear gloss on those statutes
supplied by the SJC, and the comparison to other jurisdictions
(invited by the SJC in Gouse), I conclude that in Massachusetts, a
lack of a license is an element of the offense of possessing a gun
without a license.
Having reached this conclusion, I must decide whether the
SJC's treatment of that element in Powell's case was contrary to,
or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court. Powell would read
the SJC's opinion simply to say that he bore the burden of proof on
the licensure element. On that reading, the opinion would clearly
be contrary to federal law. After all, it has been clear since In
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re Winship that a state may not place on the defendant the burden
of disproving an element of an offense. 397 U.S. 358, 364 (1970).
Nevertheless, the district court, in Powell, had a more
charitable view of the SJC's defense of the Massachusetts scheme
See 926 F. Supp. 2d at 376. Looking past Jones's erroneous
statement that licensure is not an element but an affirmative
defense, the district court held Jones and section 7 to permit the
lack of a license element to be presumed. Id. Indeed, section 7
provides that "the presumption shall be that [a defendant] is not
[licensed]." Mass. Gen. Laws ch. 278, § 7. The defendant can
rebut this presumption by adducing evidence of a license, so the
presumption, in effect, shifts only the burden of production of
licensure onto the defendant, leaving the burden of persuasion with
the prosecution. I now analyze de novo whether the SJC's
disposition of Powell's due process claim comports with the clearly
established federal law of presumptions.
II. Analysis of SJC's Opinion Under Federal Presumption Law
A. SJC's Discussion of Federal Presumption Law
In rejecting Powell's due process claim, the SJC did not
cite any Supreme Court cases. See 946 N.E.2d at 124. Instead, it
cited its previous discussion in Jones. Id. In Jones, and, by
reference, in Powell, the SJC, in upholding the constitutionality
of the Massachusetts scheme, relied on the Supreme Court cases,
Mullaney v. Wilbur, 421 U.S. 684 (1975), and Morrison v.
California, 291 U.S. 82 (1934). See 361 N.E.2d at 1311-12.
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Mullaney held that it violates due process for a state to
require a defendant charged with murder to prove, in an attempt to
reduce the charge to manslaughter, that he acted in the heat of
passion on sudden provocation. 421 U.S. at 703-04. This holding
comports with Winship. See 397 U.S. at 364. In Jones, the SJC
relied on two footnotes from Mullaney. See 361 N.E.2d at 1311-12.
In one, the Supreme Court recognized, "[m]any States do require the
defendant to show that there is 'some evidence' indicating that he
acted in the heat of passion before requiring the prosecution to
negate this element by proving the absence of passion beyond a
reasonable doubt. Nothing in this opinion is intended to affect
that requirement." 421 U.S. at 702 n.28 (citations and internal
quotation marks omitted).
In the other footnote, the Court said:
Generally in a criminal case the prosecution
bears both the production burden and the
persuasion burden. In some instances,
however, it is aided by a presumption or a
permissible inference. These procedural
devices require (in the case of a presumption)
or permit (in the case of an inference) the
trier of fact to conclude that the prosecution
has met its burden of proof with respect to
the presumed or inferred fact by having
satisfactorily established other facts. Thus,
in effect they require the defendant to
present some evidence contesting the otherwise
presumed or inferred fact. Since they shift
the production burden to the defendant, these
devices must satisfy certain due process
requirements.
Id. at 702 n.31 (citations omitted). In other words, while
Mullaney prohibited a state from shifting onto the defendant the
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ultimate burden of proof of an element, the SJC invoked those parts
of Mullaney where the Court explained that its ruling would still
permit a state to shift to the defendant the burden of initial
production, so long as the burden of persuasion rested with the
prosecution.
Of course, as reflected in the second Mullaney passage
quoted above, the Court noted that there are due process
constraints on the state's ability to shift the burden of
production through use of presumption. In articulating those
constraints, the SJC in Jones curiously looked not to the cases
cited by Mullaney, but instead to Morrison v. California, which the
SJC alleged provided "[a] classic statement" of the due process
limits on shifting the burden of production. Jones, 361 N.E.2d at
1312. Jones quoted the following passage form Morrison:
The limits are in substance these, that the
state shall have proved enough to make it just
for the defendant to be required to repel what
has been rpoved [sic] with excuse or
explanation, or at least that upon a balancing
of convenience or of the opportunities for
knowledge the shifting of the burden will be
found to be an aid to the accuser without
subjecting the accused to hardship or
oppression.
Id. (correct in original) (quoting Morrison, 291 U.S. at 88-89).
The SJC continued on to quote Morrison: "Such a shift [in the
burden of production] may be proper if there is a 'manifest
disparity in convenience of proof and opportunity for knowledge,
as, for instance, where a general prohibition is applicable to
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every one who is unable to bring himself within the range of an
exception.'" Id. (quoting 291 U.S. at 91).
However, Jones's invocation of Morrison as the
constitutional test for shifting the burden of production through
presumption is problematic. The first Morrison passage quoted by
the SJC pertains to the limits on shifting not the burden of
production, but rather the ultimate burden of proof. See 291 U.S.
at 88-89. And the second passage quoted by the SJC is incomplete.
The excerpt in the SJC's opinion focuses on disparity in
convenience of proof and opportunity for knowledge as justifying a
shift of the production burden. In fact, Morrison said, "For a
transfer of the burden, experience must teach that the evidence
held to be inculpatory has at least a sinister significance, or, if
this at times be lacking, there must be in any event a manifest
disparity in convenience of proof and opportunity for
knowledge . . . ." Id. at 90-91 (citations omitted). Jones's
selective quotation overlooks the requirement that "the evidence
held to be inculpatory ha[ve] at least a sinister significance."
This requirement was important to the holding in Morrison. There,
the defendants were convicted under a statute making it a crime to
possess land if one was both a noncitizen and ineligible for
citizenship. Id. at 83. The Court held unconstitutional a scheme
under which the state needed to prove only possession of land,
leaving proof of either citizenship or eligibility for citizenship
to the defendant. Id. at 97-98. The Court explained:
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Possession of agricultural land by one not
shown to be ineligible for citizenship is an
act that carries with it not even a hint of
criminality. To prove such possession without
more is to take hardly a step forward in
support of an indictment. No such probability
of wrongdoing grows out of the naked fact of
use or occupation as to awaken a belief that
the user or occupier is guilty if he fails to
come forward with excuse or explanation. The
legislature may go a good way in raising (a
presumption) or in changing the burden of
proof, but there are limits. What is proved
must be so related to what is inferred in the
case of a true presumption as to be at least a
warning signal according to the teachings of
experience.
Id. at 90 (citations and internal quotation marks omitted). In
other words, to support its holding, the Court focused less on the
disparity in convenience of proof, and more on the facts that
possession of land -- the evidence held to be inculpatory -- (1)
lacked a sinister significance, and (2) was not related to the
possessor's citizenship status.
B. Federal Presumption Law
Had the SJC in Jones looked not to Morrison, but to the
cases cited by Mullaney itself in support of the proposition that
there are due process constraints on the state's ability to shift
even the burden of production, the SJC would have had the guidance
of Barnes v. United States, 412 U.S. 837 (1973) and Turner v.
United States, 396 U.S. 398 (1970). See Mullaney, 421 U.S. at 702
n.31.
The Barnes Court commenced with "a review of . . .
decisions[, including Turner,] which have considered the validity
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under the Due Process Clause of criminal law presumptions," 412
U.S. at 841, and concluded that "[t]he teaching of the [reviewed]
cases is not altogether clear," id. at 843. Some cases, like
United States v. Gainey, 380 U.S. 63 (1965), applied the test first
announced in Tot v. United States, 319 U.S. 463, 467 (1943) that
there must be a "rational connection between the fact proved and
the ultimate fact presumed."
I pause here to review the test established by Tot.
There, the government urged the Court to hold that two alternative
tests governed the validity of presumptions. "The first is that
there be a rational connection between the facts proved and the
fact presumed; the second that of comparative convenience of
producing evidence of the ultimate fact." Tot, 319 U.S. at 467.
But, according to Tot:
We are of opinion that these are not
independent tests but that the first is
controlling and the second but a corollary.
Under our decisions, a statutory presumption
cannot be sustained if there be no rational
connection between the fact proved and the
ultimate fact presumed, if the inference of
the one from proof of the other is arbitrary
because of lack of connection between the two
in common experience.
Id. at 467-68. Of the many cases cited in support of this
statement, the most recent was Morrison v. California. See id. at
468 n.9. To reiterate, the SJC in Jones focused exclusively on
what Morrison had said regarding comparative convenience of
producing evidence, and ignored what Morrison had said regarding
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the need for a connection between the innocuous fact proved and the
culpable fact presumed. In light of Tot's statement that the
"comparative convenience" test is "but a corollary" of the
"controlling" "rational connection" test -- a statement that, as
noted above, reflects the very reasoning of Morrison itself -- the
SJC's sole focus on comparative convenience was misguided.
Another case reviewed by Barnes, Leary v. United States,
purported to expound on Tot's "rational connection" test by saying
that a "presumption must be regarded as 'irrational' or
'arbitrary,' and hence unconstitutional, unless it can at least be
said with substantial assurance that the presumed fact is more
likely than not to flow from the proved fact on which it is made to
depend." 395 U.S. 6, 36 (1969) (emphasis added). In a footnote,
the Leary Court said that, since the inference at issue failed to
satisfy this "more likely than not" gloss on Tot's "rational
connection" test, the Court did not need to reach the question
whether a presumption being used to prove an element of a crime
must satisfy not only the "more likely than not" gloss, but also
the "reasonable doubt" standard. Id. at 36 n.64. Both the final
case reviewed by Barnes, Turner v. United States, and the Barnes
case itself noted that Leary reserved the question whether the
"more likely than not" or "reasonable doubt" standard controlled in
criminal cases, but they too left this question open by concluding
that the presumptions under review satisfied even the more
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stringent "reasonable doubt" standard. See Barnes, 412 U.S. at
845; Turner, 396 U.S. at 416.
This much is clear from the survey of these cases: if a
presumption cannot satisfy Tot's "rational connection" test, it is
unconstitutional; and if a presumption can satisfy the "reasonable
doubt" standard, it is constitutional. As discussed below, I
conclude that the presumption at play here fails the "rational
connection" test, so I need not wade into the murky water
submerging presumptions that survive "rational connection" but fail
"reasonable doubt."
Another principle from Barnes and Tot explains the
relationship between a presumption and a de facto shift of the
production burden. The Barnes Court said:
It is true that the practical effect of
instructing the jury on [an] inference . . .
is to shift the burden of going forward with
evidence to the defendant. . . . In Tot v.
United States, the Court stated that the
burden of going forward may not be freely
shifted to the defendant. Tot held, however,
that where there is a "rational connection"
between the facts proved and the fact presumed
or inferred, it is permissible to shift the
burden of going forward to the defendant.
Barnes, 412 U.S. at 846 n.11 (citations omitted).
Finally, after Barnes, in County Court of Ulster Cty. v.
Allen, 442 U.S. 140 (1979), the Supreme Court offered another
discussion of presumption law, explaining that presumptions can be
permissive or mandatory. Permissive presumptions allow, but do not
require, the trier of fact to infer an "elemental fact" (i.e., the
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existence of an element of the crime) from proof by the prosecution
of a "basic" or "evidentiary" fact. Id. at 156-57. Because such
a permissive presumption "does not shift the burden of proof, it
affects the application of the 'beyond a reasonable doubt' standard
only if, under the facts of the case, there is no rational way the
trier could make the connection permitted." Id. at 157. A
mandatory presumption, however, "may affect not only the strength
of the 'no reasonable doubt' burden but also the placement of that
burden; it tells the trier that he or they must find the elemental
fact upon proof of the basic fact, at least unless the defendant
has come forward with some evidence to rebut the presumed
connection between the two facts." Id.The Court went on to explain that the class of mandatory
presumptions can be further divided between "presumptions that
merely shift the burden of production to the defendant, following
the satisfaction of which the ultimate burden of persuasion returns
to the prosecution; and presumptions that entirely shift the burden
of proof to the defendant." Id. at n.16. With respect to mandatory
presumptions that shift only the burden of production, the Court
said that "[t]o the extent . . . [the] presumption imposes an
extremely low burden of production -- e.g., being satisfied by
'any' evidence -- it may well be that its impact is no greater than
that of a permissive inference, and it may be proper to analyze it
as such." Id. To decide what type of presumption is involved in a
case, said the Court, "the jury instructions will generally be
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controlling, although their interpretation may require recourse to
the statute involved and the cases decided under it." Id.
C. The Presumption at Issue
I now turn to the presumption at play in Powell's case.
Because Powell had a bench trial, no jury instructions were given.
As a result, the district court resorted to both the text of
section 7 and the surrounding caselaw. See Powell, 926 F. Supp. 2d
at 376-77. The district court read section 7 -- which provides
that, until licensure is proved, "the presumption shall be that [a
defendant] is not [licensed]," Mass. Gen. Laws ch. 278, § 7 (West
2014) (emphasis added) -- to establish a mandatory presumption.
Powell, 926 F. Supp. 2d at 377. Looking to surrounding caselaw,
such as Couture, the district court determined that section 7's
mandatory presumption shifted only the burden of production and not
the ultimate burden of persuasion. Id. Moreover, the district
court determined that "the burden of production [could] be met by
a minimal showing -- that is, the mere production of a license."
Id. Consequently, the court analyzed the presumption as if it was
permissive, rather than mandatory. Id. I agree with this much of
the district court's analysis.
At this point, I part ways with the district court.
Again, the Allen Court held that permissive presumptions "affects
the application of the 'beyond a reasonable doubt' standard" -- and
thus raise a constitutional concern -- "only if, under the facts of
the case, there is no rational way the trier could make the
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connection permitted." 442 U.S. at 157. Here, the district court
concluded, "[o]ne can rest assured that . . . any reasonable trier
of fact could indeed ascertain a rational connection between the
facts proved (the possession and carrying of a firearm) and the
fact presumed (the absence of a license)." Powell, 926 F. Supp. 2d
at 377. In other words, according to the district court, one's
performance of conduct requiring a license rationally implies the
lack of a license. With all due respect to the district court,
this alleged connection is not rational. To see this error, one
need only consider that the act of performing surgery does not
suggest that the surgeon lacks a medical license.
The Commonwealth argues that the presumption under review
makes use of a "rational connection" between the lack of a license
and the defendant's failure, in the face of firearms charges, to
come forward with evidence of a license, rather than the mere
possession of a firearm. This purported rational connection is
troubling, to say the least. Under this theory, in the face of
murder charges, a defendant's failure to raise an alibi defense
could give rise to the presumption that he was at the scene of the
crime. To hold that lack of a license can be presumed from the
defendant's failure to raise the issue at trial is to elide the
distinction between an element of a crime subject to proof by
presumption and an affirmative defense. The fundamental principle
that one is innocent until proven guilty would be weak indeed if
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one's failure to present a defense was sufficient to imply proof of
guilt.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), a state ruling cannot contradict clearly
established federal law. 28 U.S.C. § 2254 (d)(1). If federal law
is unclear, or if the state ruling is consistent with federal law,
then the state wins and habeas is not granted. Id. As I am unable
to perceive a reading of the SJC's disposition of Powell's due
process claim that does not contradict clearly established federal
law as determined by the Supreme Court, I conclude that the AEDPA
standard has been met. To the extent that the SJC in Powell,
through reference to Jones, elevated the "comparative convenience"
test over the "rational connection" test, the adjudication was
"contrary to" federal law. Further, to the extent that the SJC,
again through reference to Jones, found the "rational connection"
test satisfied by the presumption at issue, the adjudication
involved an "unreasonable application" of federal law.
I respectfully dissent.
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