Cruz v. Maloney

Not for Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2406
GABRIEL CRUZ, III,
Petitioner, Appellant,
v.
MICHAEL T. MALONEY, COMMISSIONER OF THE MASSACHUSETTS
DEPARTMENT OF CORRECTION,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella and Howard, Circuit Judges,
and Siler,* Senior Circuit Judge.
John M. Thompson for petitioner.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
Massachusetts Department of Attorney General, with whom Thomas F.
Reilly, Attorney General, was on brief, for respondent.
October 21, 2005
*Of the Sixth Circuit Court of Appeals, sitting by designation.
SILER, Senior Circuit Judge. Petitioner Gabriel Cruz, III
appeals the district court’s denial of his petition for a writ of
habeas corpus. Cruz argues the state trial court improperly
instructed the jury and that defense counsel was ineffective for
failing to object to the erroneous jury instruction. We AFFIRM.
I. BACKGROUND
In 1994, Cruz was part of a gang of four men who burglarized
two apartments using a baseball bat and a firearm. Tragically,
seven-year-old Eve Rojas died of asphyxiation after her mouth and
nose were bound with duct tape. Cruz was subsequently convicted of
first-degree murder, three counts of burglary with assault on an
occupant, armed assault in a dwelling, four counts of stealing by
confining or putting in fear, armed robbery, armed assault with
intent to commit murder, and four counts of assault and battery by
means of a dangerous weapon. See Commonwealth v. Cruz, 714 N.E.2d
813 (Mass. 1999). Cruz’s first-degree murder conviction was
obtained under a felony-murder rule theory, and he was sentenced to
life in prison without parole. His convictions were affirmed on
appeal except for his burglary convictions; they were vacated
because they merged with his first-degree murder conviction as
lesser-included offenses. See id. at 823-24. At trial, the court
instructed the jury that
[t]he final element of the crime of felony murder, here,
that the Commonwealth must prove, is that in the
circumstances of this case, the defendant committed or
attempted to commit the felony in question with a
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conscious disregard for the risk to human life. The
crime, the felony of burglary with assault on an
occupant, is a crime that is defined in our law as
inherently dangerous to human life.
If you find that the Commonwealth has proved beyond a
reasonable doubt, that the defendant, Gabriel Cruz,
committed, as a joint venturer, the unlawful killing of
Eve Rojas, while in the course of committing the offense
of a burglary with an assault on an occupant, you would
be warranted in finding, without more, that he acted with
a conscious disregard for the risk to human life, because
that particular felony is inherently dangerous to human
life.
Cruz’s counsel did not object to this instruction.
In 2000, Cruz petitioned for habeas corpus relief pursuant to
28 U.S.C. § 2254. A United States magistrate judge issued a report
and recommendation denying Cruz’s petition. The magistrate judge
later issued a supplemental report and recommendation again denying
Cruz’s petition. The district court adopted both reports and
recommendations, concluding that Massachusetts state law permitted
the trial court’s instruction, the United States Court of Appeals
for the First Circuit had rejected a similar argument, and Cruz’s
counsel was not ineffective because the instruction was consistent
with state-law “settled precedent.”
Nevertheless, the district court granted Cruz a certificate of
appealability (“COA”) on two issues: (1) whether the trial court
violated Cruz’s rights to trial by jury and due process of law by
instructing the jury that the felony of burglary with assault on an
occupant is inherently dangerous to human life; and (2) whether
Cruz’s counsel was ineffective in failing to object to that jury
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instruction. This court denied Cruz’s motion for an expanded COA.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(2).
II. DISCUSSION
Normally, this appeal would be governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). However,
“AEDPA’s strict standard of review only applies to a ‘claim that
was adjudicated on the merits in state court proceedings.’”
Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (quoting 28
U.S.C. § 2254(d)). The Massachusetts Supreme Judicial Court
(“SJC”) decided Cruz’s jury instruction claim solely as a matter of
state law. See Cruz, 714 N.E.2d at 818-19, 822 n.6. Therefore,
our review is de novo. See Fortini, 257 F.3d at 47. Cruz’s
ineffective assistance of counsel claim is also reviewed de novo.
See id.
1. The Jury Instruction
Cruz argues that the trial court violated his rights to a
fair trial and due process because the instruction established a
conclusive presumption that relieved the state of proving an
essential element of the crime beyond a reasonable doubt – that he
acted with a conscious disregard for the risk to human life.
The SJC analyzed the issue as follows:
3. Inherently dangerous felony instruction. The
defendant asserts that the judge improperly stated that
the felony of burglary with assault on an occupant is a
crime that is inherently dangerous to human life. The
defendant’s argument ignores settled precedent. See
Commonwealth v. Selby, [686 N.E.2d 1316 (Mass. 1997)]
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(armed assault in dwelling “by its very nature . . .
‘inherently dangerous to human life,’ Commonwealth v.
Claudio, 418 Mass. 103, 108, 634 N.E.2d 902 [1994] [armed
burglary in dwelling with assault therein, under [Mass.
Gen. Laws Ann. ch.] 266, § 14, is inherently dangerous
felony and supported conviction for felony-murder”]).
Cruz, 714 N.E.2d at 818-19. The Cruz court reiterated that
“burglary with assault on an occupant is inherently dangerous to
human life, and thus, the conscious disregard for human life
requisite for a finding of malice is presumed.” Id. at 822 n.6.
Errors of state law are not a cognizable basis for federal
habeas relief, and this court does not re-examine the SJC’s
determination of a state-law question. See Lewis v. Jeffers, 497
U.S. 764, 780 (1990). “Federal courts sitting in habeas must
accept state court rulings on state law issues. An inquiry into
the correctness of a ruling on state law issues ‘is no part of a
federal court’s habeas review of a state conviction.’” Rodriguez
v. Spencer, 412 F.3d 29, 37 (1st Cir. 2005) (quoting Estelle v.
McGuire, 502 U.S. 62, 67 (1991)). The district court concluded
that Cruz’s claim “involv[ed] complicated matters of felony murder
doctrine under state common law, not federal constitutional law[.]”
Cruz’s habeas petition must be denied because Massachusetts
law settles the issue. See McMillan v. Pennsylvania, 477 U.S. 79,
85 (1986) (states are left with the authority to prevent and deal
with crime). “To make out a case of murder, the prosecutor need
only establish that the defendant committed a homicide while
engaged in the commission of a felony[.]” Commonwealth v. Gunter,
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692 N.E.2d 515, 525 (Mass. 1998) (citations omitted). Thereafter,
“[t]he effect of the felony-murder rule is to substitute the intent
to commit the underlying felony for the malice aforethought
required for murder. Thus, the rule is one of ‘constructive
malice.’” Id. (citations omitted). In Commonwealth v. Selby, 686
N.E.2d 1316, 1320 (Mass. 1997), the SJC reapplied the holding of
Commonwealth v. Claudio, 634 N.E.2d 902 (Mass. 1994), that certain
felonies by their very nature are inherently dangerous, including
burglary with assault on an occupant and armed assault in a
dwelling, so as to justify felony-murder convictions.
Here, the SJC conclusively determined that the felony-murder
rule was properly applied to Cruz because the felony of burglary
with assault on an occupant is inherently dangerous to human life.
See Commonwealth v. Scott, 701 N.E.2d 629, 632 (Mass. 1998) (“There
is no need to show a ‘conscious disregard for human life because
the risk is implicit in the intent required for [certain]
felon[ies]’” and “[it] is not the province of the jury to determine
whether a felony is inherently dangerous.”) (citation omitted)
(emphasis added). To reiterate, we cannot second-guess this state
law decision on habeas review. See Pulley v. Harris, 465 U.S. 37,
41 (1983) (“A federal court may not issue the [habeas corpus] writ
on the basis of a perceived error of state law.”); Watkins v.
Callahan, 724 F.2d 1038, 1043 (1st Cir. 1984) (rejecting arguments
identical to Cruz’s premised on identical rationale).
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This is not a case where the trial court directed a guilty
verdict due to a conclusive presumption of guilt. Cf. Sandstrom v.
Montana, 442 U.S. 510, 522 (1979). Unlike the burglary with
assault on an occupant charge, the trial court did not instruct the
jury that “stealing by confining or putting in fear” is inherently
dangerous. This is correct. See Scott, 701 N.E.2d at 632; Cruz,
714 N.E.2d at 821-22 (“burglary with assault on an occupant” is
inherently dangerous, whereas “stealing by confining or putting in
fear” was not specifically defined as such). The trial court’s
instruction boiled down to an issue of Massachusetts state law and
Cruz’s attempt to recast the issue in a constitutional light is
unavailing. The prosecution still had to prove all elements of the
charged crimes beyond a reasonable doubt. Although “conscious
disregard” remains an element of the felony, Massachusetts has
resolved to substitute it for malice in certain inherently
dangerous felonies.
Moreover, this claim is procedurally defaulted. Cruz’s
counsel did not object to the complained-of instruction.
Therefore, the SJC had to “determine whether the error created a
substantial risk of a miscarriage of justice.” See Commonwealth v.
Alphas, 712 N.E.2d 575, 580 (Mass. 1999) (citations omitted);
Commonwealth v. Curtis, 632 N.E.2d 821, 825 (Mass. 1994) (“[A]n
appellate court considers an issue not properly preserved for
appellate review only on the ‘substantial risk of a miscarriage of
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justice’ standard . . . .”); Mass. R. Crim. P. 24(b) (“No party may
assign as error the giving or the failure to give an instruction
unless he objects thereto before the jury retires to consider its
verdict, specifying the matter to which he objects and the grounds
of his objection.”).1 Known as the “contemporaneous objection
rule,” see Commonwealth v. Fluker, 385 N.E.2d 256, 261 (Mass. 1979)
(failure to object to instruction precludes state appellate
review), this court has held that
[i]n cases where defense counsel fails to make a timely
objection, the state does not waive the objection, and
the appellate decision rested on that ground, that is “a
classic example of a procedural default, and petitioner
can succeed in his habeas case only by showing cognizable
cause for, and cognizable prejudice from, his procedural
default or, alternatively, by demonstrating that the
federal court’s failure to address the claim on habeas
review will occasion a miscarriage of justice.”
Brewer v. Marshall, 119 F.3d 993, 1001-02 (1st Cir. 1997)
(citations omitted).
Massachusetts consistently applies the contemporaneous
objection rule and has not waived it here. See Gunter v. Maloney,
291 F.3d 74, 79 (1st Cir. 2002) (“The SJC regularly enforces the
rule that a claim not raised is waived.”). After considering
Cruz’s unpreserved argument and reviewing the instruction, the Cruz
court ruled that his claim “ignore[d] settled precedent” and there
was no substantial risk of a miscarriage of justice. Cruz, 714
1
Cruz concedes that, under Massachusetts law, his failure to object
to the instruction constituted a procedural default which deprived
him of the right to appellate review of this issue.
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N.E.2d at 818-19. This conclusion, accordingly, is an “independent
and adequate state ground” barring review. See Brewer, 119 F.3d at
999. Since Cruz “defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of [his] claims is barred unless [he] can
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law,” or if he can show that
“failure to consider the claims will result in a fundamental
miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722,
750 (1991).
“To excuse a procedural default, a petitioner’s cause must
relate to an objective factor, external to the defense, that
thwarted (or at least substantially obstructed) the efforts of the
defendant or his counsel to obey the state’s procedural rule.”
Burks v. Dubois, 55 F.3d 712, 716-17 (1st Cir. 1995). The only
potential cause available to Cruz is defense counsel’s failure to
object to the instruction. See Gardner v. Ponte, 817 F.2d 183, 186
(1st Cir. 1987). As will be demonstrated, however, Cruz cannot
establish cause since defense counsel’s failure to object did not
constitute ineffective assistance of counsel. See Burks, 55 F.3d
at 716-17. Nor can Cruz demonstrate that he was prejudiced: the
jury was instructed in accordance with Massachusetts law. See
Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999) (“[T]he
SJC’s decision on what is a miscarriage of justice is a
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determination made under state law[.]”). There was no substantial
risk of a miscarriage of justice.
Accordingly, we reject Cruz’s claim that the trial court
violated his constitutional rights by instructing the jury that the
felony of burglary with assault on an occupant is a crime that is
inherently dangerous to human life.
2. Ineffective Assistance of Counsel
Cruz also argues that he is entitled to habeas relief because
his counsel was constitutionally ineffective in failing to timely
object to the jury instruction. Pursuant to Strickland v.
Washington, 466 U.S. 668 (1984), Cruz is required to “show that
counsel performed unreasonably and that prejudice resulted
therefrom.” United States v. Fornia-Castillo, 408 F.3d 52, 65 (1st
Cir. 2005) (quoting United States v. Mena-Robles, 4 F.3d 1026, 1034
(1st Cir. 1993)).
Cruz insists that his counsel’s “ignorance [and] error”
resulted in the failure to object, which was not a “tactical or
strategic” decision. See Commonwealth v. Gelpi, 625 N.E.2d 543,
544 (Mass. 1994) (failure to object to instruction constituted
ineffective assistance of counsel).2 Regardless of performance,
Cruz was not prejudiced. Massachusetts law is clear that the trial
court’s jury instruction was consistent with settled precedent. In
Massachusetts, “burglary with assault on an occupant is inherently
2
Cruz again concedes procedural default.
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dangerous to human life, and thus, the conscious disregard for
human life requisite for a finding of malice is presumed.” See
Cruz, 714 N.E.2d at 822 n.6 (citing Claudio, 634 N.E.2d at 906-07).
Failure to object to an accurate jury instruction does not qualify
as ineffective assistance of counsel. See Commonwealth v. Jackmon,
822 N.E.2d 754, 761-62 (Mass. App. Ct. 2005) (defense counsel’s
failure to object to felony-murder instruction was not ineffective
where instruction was correct). Even if Cruz’s counsel had
objected, “there is [not] a reasonable probability that, but for
counsel’s unprofessional error[], the result of the proceeding
would have been different.” Ouber v. Guarino, 293 F.3d 19, 25 (1st
Cir. 2002) (quoting Strickland, 466 U.S. at 694). This claim also
fails.
We AFFIRM the district court’s denial of Cruz’s petition for
a writ of habeas corpus.
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