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considering double jeopardy in context of duplicitous indictment
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CIVIL ACTION NO. 02-11675-DPW.
July 2, 2003.
MEMORANDUM AND ORDER
Petitioner Miguel Perez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Perez contends that he is entitled to relief because the state court erred in denying his motion to dismiss a second indictment as duplicitous in violation of the Double Jeopardy Clause of the Fifth Amendment as applied against the states through the Due Process Clause of the Fourteenth Amendment. I find the decision of the state courts neither contradicted nor unreasonably applied clearly established federal law as determined by the Supreme Court of the United States, 28 U.S.C. § 2254(d)(1)), and accordingly will dismiss the petition.
I. BACKGROUND
A. Facts:
Under 28 U.S.C. § 2254(e), state court findings of fact are presumed to be correct. See Dolinger v. Hall, 302 F.3d 5, 8 n. 5 (1st Cir. 2002); McCambridqe v. Hall, 303 F.3d 24, 34-35 (1st Cir. 2002). In affirming the holding of the Massachusetts Superior Court, the Supreme Judicial Court of Massachusetts ("SJC") recited the facts, which are not in dispute, as follows.
On May 3, 1998, Frankie Santiago, a member of the La Familia gang, was driving through Holyoke with his girlfriend and daughter. He stopped the car at a streetlight on a corner where members of a rival gang, the Latin Kings, were congregated. Recognizing Santiago, the group of Latin Kings began teasing him regarding the recent murder of his cousin, another member of the La Familia gang. Santiago believed that the rival gang was responsible for the death of his cousin. When the lights changed, Santiago drove away. He dropped off his girlfriend and baby and picked up Carlos Marrero at a La Familia gathering place in Springfield. The two men headed back to Holyoke and proceeded past the street corner where members of the Latin Kings were still gathered. As Santiago drove by, Marrero stood upright through the car's sun-roof and shot multiple bullets into the crowd. Two people were struck — a woman was shot in the head and a man was hit in the leg. During their flight from the scene, Marrero informed Santiago that he had "seen somebody wearing yellow [one of the gang colors for the Latin Kings] go down." Commonwealth v. Perez, 437 Mass. 186, 187-88 (2002).
Santiago and Marrero drove back to Springfield and stopped at the house of Petitioner, one of the founding members of the La Familia gang. Having already heard about the shooting, Petitioner and some family members questioned Santiago about the incident. One of them informed Santiago that someone had been shot. Thereafter, Santiago spoke with Petitioner, further describing the course of events and confirming that someone had been shot. Id. at 188.
Drawing upon information from eyewitnesses, police came up with Santiago's name and beeper number. An officer paged Santiago and Petitioner responded, believing the officer to be a friend of Santiago's. The SJC described the ensuing events,
[Petitioner], who initially fell for the ruse, told the 'friend' that he and Santiago needed a ride. However, Santiago soon recognized that the caller was impersonating his friend and told [Petitioner] to hang up. The trooper asked [Petitioner] where they were. [Petitioner] replied by giving the trooper a false address . . . After that conversation, [Petitioner] gave Santiago the telephone number of John Montalvo, another La Familia founder, who lived in Brooklyn. Santiago telephoned Montalvo and asked him to come to Springfield to pick him up. Montalvo was reluctant to do so. [Petitioner] then took the telephone, told Montalvo that 'the shit hit the fan,' and persuaded him to come get Santiago. Montalvo arrived at around 3 a.m. and took Santiago to Brooklyn. When Santiago departed, he left behind the keys to the car used in the shooting, which was still parked in the lot next door to [Petitioner's] house.Id. at 188-89. Subsequently, police contacted Petitioner who agreed to be interviewed. He denied having seen Santiago and claimed that he was no longer involved with the La Familia gang. He also contended that he did not "know none about the shootings," but conceded that he had heard on the news that "a man got shot in Springfield and a girl got shot Holyoke yesterday." Id. at 189.
A day later, police identified Santiago's abandoned car a half a mile away from Petitioner's house. The automobile was missing its registration plate. Inside the car, police found a bottle of power steering fluid from which Petitioner's fingerprints were lifted. Based on this evidence, the jury concluded that Petitioner had moved the car and removed the registration plate.Id.
B. Procedural History
On August 11, 1998, Petitioner was indicted on two counts of being an accessory after the fact to assault and battery with a dangerous weapon, in violation of Massachusetts General Laws ("Mass. Gen. Laws"), Chapter ("ch.") 274, § 4. The multiple indictments were based on the number of victims assaulted and battered by the principal, rather than the number of acts of assistance undertaken by Petitioner. Petitioner filed a motion to dismiss the second indictment as duplicitous, noting that the second charge alleged a violation of the same statute and arose from the same course of conduct as the first indictment. On February 19, 1999, at the conclusion of a six day trial, the jury entered guilty verdicts on both charges. On May 3, 1999, Massachusetts Superior Court Judge Constance Sweeney denied Petitioner's motion to dismiss the second indictment and sentenced him to three to five year prison terms for each charge, to be served concurrently.
Petitioner appealed to the Massachusetts Appeals Court alleging a violation of his Fifth and Fourteenth Amendment right against "double jeopardy," arising from the denial of his motion to dismiss the second indictment as duplicitous. On June 21, 2002, after transferring the case from the Appeals Court, the SJC affirmed the two convictions, holding that the appropriate 'unit of prosecution' for an accessory is based on the underlying felony offenses perpetrated by the principal.Perez, 437 Mass. at 187.
II. DISCUSSION
A. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
Congress enacted AEDPA in an effort to place "a new constraint on the power of the federal court to grant a state prisoner's application for a writ of habeas corpus." Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the statute, a district court may only entertain a request for habeas relief where the state court's adjudication on the merits of a petitioner's claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (1-2).
In Williams v. Taylor, the Supreme Court emphasized that the "contrary" and "unreasonable application" clauses of criterion (1) are imbued with independent meaning. 529 U.S. at 405. Explicating the former clause, the Court noted that a state court decision is "contrary" to federal law where "the state court arrives at a conclusion opposite to that reached by this Court on a question of law," or alternatively where "a state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Id.; see also Mastracchio v. Vose, 274 F.3d 590, 597 (1st Cir. 2001). Regarding the second clause, the Court explained that a state court's decision involves an "unreasonable application" of Supreme Court precedent where "the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407. Emphasizing that the standard is objective, the Court went on to explain that an unreasonable application of federal law is not the equivalent of an incorrect application of federal law.Id. at 409-10. As a consequence, a federal court cannot entertain a petition for habeas relief where it determines independently that the state court erroneously applied federal law in arriving at its decision. Id. at 411; see also Kibbe v. Dubois, 269 F.3d 26, 36 (1st Cir. 2001).
The First Circuit has refined its understanding of the "unreasonable" standard, holding that a state court decision involves an unreasonable application of federal law only where it is "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998); see also Kibbe, 269 F.3d at 36; McCambridge, 303 F.3d at 36. Accordingly, under both the "contrary" and "unreasonable application" clauses of § 2254(d)(1), the federal habeas court must afford the state court's decision considerable weight in determining whether to grant an applicant's habeas petition. O'Brien, 145 F.3d at 20 ("the AEDPA amendments to section 2254 exalt the role that the state court's decision plays in a habeas proceeding by specifically directing the habeas court to make the state court decision the cynosure of federal review.")
B. Double Jeopardy and Relevant Supreme Court Precedent
In asserting that he is entitled to relief under 28 U.S.C. § 2254(d)(1), Petitioner alleges that the state court's failure to dismiss a second indictment as duplicitous violated his Fifth Amendment privilege against double jeopardy. As noted by the Supreme Court in Brown v. Ohio, the Double Jeopardy Clause as applied against the states through the Due Process Clause of the Fourteenth Amendment (see Benton v. Maryland, 395 U.S. 784, 794 (1969)) affords three forms of protection: [1] It "protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense." Brown, 432 U.S. 161, 165 (1977); N. Carolina v. Pearce, 395 U.S. 711, 717 (1969); see also Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 383-84 (1998) (acknowledging that the Commonwealth's double jeopardy rule and the Double Jeopardy Clause of the Fifth Amendment protect against these three forms of abuse.) Petitioner charges a violation of the third form of protection, asserting that his sentence, as a function of two indictments and subsequent convictions, reflects cumulative punishment for a single offense.
The Supreme Court has explained that the third form of the Double Jeopardy protection is meant to restrain the courts from imposing punishment in excess of what the legislature contemplated in enacting a given statute. Missouri v. Hunter, 459 U.S. 359, 366 (1983) ("[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."); see also Albernaz v. U.S., 450 U.S. 333, 344 (1981); Ohio v. Johnson, 467 U.S. 493, 499 n. 8 (1984). Thus, in order to determine whether Petitioner has been denied the third variation of double jeopardy protection, inquiry must be made into the legislature's intent in enacting Mass. Gen. Laws ch. 274, § 4. Johnson, 467 U.S. at 499 n. 8.; see also Albernaz, 450 U.S. at 344 (noting that under the Double Jeopardy Clause, "the question of what punishments are constitutionally permissible is no different from the question of what punishment the Legislative Branch intended to be imposed.") If the Massachusetts legislature contemplated cumulative punishment under the contested statute, Petitioner's second indictment does not violate double jeopardy.
In an effort to discern legislative intent regarding cumulative punishment for offenses arising out of a single course of conduct, the Supreme Court has relied on the 'same elements' or 'Blockburger'' test. Blockburger v. U.S., 284 U.S. 299, 304 (1932). The 'same elements' test asks whether each offense with which a defendant is charged "contains an element not contained in the other." U.S. v. Dixon, 509 U.S. 688, 696 (1993); see also Morey v. Commonwealth, 108 Mass. 433, 434 (1891). If so, they are not the same offense and cumulative punishment may be imposed. Id. Here, the SJC did not employ the Blockburger test but focused its analysis directly on the intent of the Massachusetts legislature in enacting Mass. Gen. Laws ch. 274, § 4. Accordingly, an examination of whether the crimes for which Petitioner was punished constitute the 'same offense' for purposes of the Blockburger test is unnecessary. The Supreme Court in Ohio v. Johnson observed that "[a]s should be evident from our decision in Missouri v. Hunter, however, the Blockburger test does not necessarily control the inquiry into the intent of the legislature. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end." Johnson, 467 U.S. at 499 n. 8; see also Albernaz, 450 U.S. at 340 (holding that "[t]he Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning congressional purpose, the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.").
Articulating the appropriate means through which legislative intent may be discerned, the Supreme Court has held that the "language and structure, legislative history, and motivating policies" of a given statute might be examined. Bifulco v. U.S. 447 U.S. 381, 387 (1980); Moskal v. U.S., 498 U.S. 103, 108 (1990). If, after considering "'everything from which aid can be derived,'" the court is unable to determine the intent of the legislature, it may resolve ambiguity in favor of lenity.U.S. v. Bass, 404 U.S. 336, 347 (1971), citing U.S. v. Fisher, 2 Cranch 358 (1805) (Marshall, C.J); see e.g., Bell v. U.S., 349 U.S. 81 (1955). It is important to note that the Supreme Court has strictly limited the applicability of the lenity rule. As the Court emphasized in Callanan v. U.S., the doctrine of lenity should only be employed "at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan, 364 U.S. 587, 596 (1961); see also Albernaz, 450 U.S. at 342 ("lenity serves only as an aid for resolving ambiguity; it is not used to beget one."); Tarrante v. Ponte, 751 F.2d 459, 465-66 (1st Cir. 1985) ("we are unconvinced that the Court's recent double jeopardy decisions impose upon the states a constitutional presumption that lenity should prevail in the face of any ambiguity as to legislative intent.")
C. Petitioner's Request For Habeas Relief Fails Under the "Contrary" Clause of 28 U.S.C. § 2254(d)(1)
On Petitioner's direct appeal, the SJC adhered to the Supreme Court standards in Hunter, 459 U.S. at 366, and Bifulco, 447 U.S. at 387, in determining that Petitioner's cumulative punishment did not violate double jeopardy. Perez, 437 Mass. 186. For this reason, Petitioner's request for habeas relief cannot be sustained under the "contrary" clause of 28 U.S.C. § 2254(d)(1). Pursuant to federal law, as established by the Supreme Court, the SJC found the intent of the state legislature in enacting Mass. Gen. Laws ch. 274, § 4 by examining the language and legislative history of the statute and relevant case law. In particular, the SJC drew upon its holding inCommonwealth v. Devlin, stating that "'the language of the statute is in common law form,'" and its definition of accessory after the fact "'obviously has roots in the common law tradition.'" Perez, 437 Mass. at 190-91, quoting Devlin, 366 Mass. 132, 137 (1974). Describing the statute's legislative history, the court went on to note that "the Legislature has not amended the statute to transform the crime of being an accessory after the fact into the more modern articulation of the crime as an obstruction of justice"; consequently, the Court observed that "unless and until the statute is amended, we must continue to construe it consistent with its common law roots." Id. at 194. The court explained that at common law, the accessory's guilt was a function of the principal's offenses, not the number of acts of assistance rendered. Id. at 190; see also Heard v. United States, 686 A.2d 1026, 1029-30 (D.C. Cir. 1996). In turn, the SJC found that the legislature contemplated cumulative punishment under the contested statute. Id.
Thus, in inquiring into legislative intent, the SJC did not apply a legal rule that is "'diametrically different,' 'opposite in character or nature,' or 'mutually opposed,' to [the Supreme Court's] clearly established precedent." Williams, 529 U.S. at 406. Indeed, in his brief to this Court, Petitioner appears to concede that the SJC employed the proper rule in arriving at its decision. He states, the "appropriate inquiry in a case like this, involving criminal proceedings under the accessory after the fact statute, asks what 'unit of prosecution' was intended by the Legislature," requiring the court to "look into the language and purpose of the statute." (Emphasis added). It follows that the SJC's decision was not "contrary to" clearly established federal law. 28 U.S.C. § 2254(d)(1).
D. Petitioner's Request for Habeas Relief Fails Under the "Unreasonable Application" Clause of 28 U.S.C. § 2254(d)(1)
Having conceded that the SJC identified the correct legal rule governing cumulative punishment under the Double Jeopardy Clause, Petitioner appears to base his request for habeas relief on the premise that the SJC unreasonably applied the standard. He implies that the state court's decision involved an unreasonable application of federal law to the extent that (1) a proper examination of legislative intent reveals ambiguity and (2) pursuant to federal and state precedent, such ambiguity should be resolved in favor of lenity.
Petitioner's argument fails on two grounds. First, the Supreme Court has repeatedly emphasized that a federal court is obliged to adhere to a state court's construction of state legislation. The Court has held that "[i]nterpretation of state legislation is primarily the function of state authorities, judicial and administrative. The construction given to a state statute by the state courts is binding upon federal courts." Albertson v. Millard, 345 U.S. 242, 244 (1953); see also O'Brien v. Skinner, 414 U.S. 524, 531 (1974) ("it is not our function to construe a state statute contrary to the construction given by the highest court of a state.") Similarly, in Ohio v. Johnson, a case involving issues of cumulative punishment under the Double Jeopardy Clause, the Court noted, "[w]e accept, as we must, the Ohio Supreme Court's determination that the Ohio legislature did not intend cumulative punishment for the two pairs [of offenses] involved here." Johnson, 467 U.S. at 499;see also Hunter, 459 U.S. at 368 ("the Missouri Supreme Court has recognized that the legislature intended that punishment for violations of the statutes be cumulative. We are bound to accept the Missouri court's construction of the State's statutes."; Brown, 432 U.S. at 167, citing Garner v. Louisiana, 368 U.S. 157, 159 (1961) (state court of appeals had "'final authority to interpret . . . that state's legislation.'") It follows that the SJC's determination of the legislature's intent regarding cumulative punishment under Mass. Gen. Laws ch. 274, § 4 is binding upon this Court.
Moreover, even if I did have some form of authority to review the SJC's construction of legislative intent, I could not afford Petitioner habeas relief on the grounds that the SJC's holding involved an unreasonable application of federal law. In affirming Petitioner's two convictions and imposing cumulative punishment under Mass. Gen. Laws ch. 274, § 4, the SJC issued a decision that was well within the realm of objectively reasonable outcomes. See, e.g. Hunter, 459 U.S. at 366;Albernaz, 450 U.S. at 340; Johnson, 467 U.S. at 499 n. 8.
While Petitioner highlights arguments that might weigh in favor of a more lenient construction of the contested statute, he offers nothing to support a contention that the SJC's holding was "arbitrary" or "devoid of record support." O'Brien v. Dubois, 145 F.3d at 25. Petitioner's assertion that because the statute in question does not explicitly define the appropriate unit of prosecution, the legislature's intent is ambiguous and accordingly, the doctrine of lenity should control is unavailing. As I have noted, the SJC did not rely solely on the explicit dictates of the statute in arriving at its decision. Adhering to Supreme Court precedent (see Bifulco, 447 U.S. at 387; Moskal, 498 U.S. at 108), the SJC examined the history of Mass. Gen. Laws ch. 274, § 4, the relevant case law, and the language of the statute as it related to the development of the common law. Perez, 437 Mass. at 190-94. Given the care with which this examination was undertaken, the SJC's holding could hardly be deemed "unreasonable" or "arbitrary."
Petitioner also argues that Mass. Gen. Laws ch. 274, § 4 does not prescribe penalties in proportion to the principal's offenses, thus indicating the legislature's intent to discard the common law approach and distinguish the accessory's transgression, i.e. the act of assistance, from the principal's underlying crimes. Petitioner implies that in establishing a discrete sentencing range for accessories under Mass. Gen. Laws ch. 274, § 4, the legislature contemplated a break from the common law tradition of charging and punishing an accessory for each of the crimes committed by the principal. While Petitioner's argument is not frivolous, it was adequately assessed and ultimately dismissed by the SJC. Perez, 437 Mass. at 191 n. 3. The SJC noted,
while a provision linking the accessory's sentence to the maximum sentence for the principal supports the conclusion that such a statute reflects the common-law approach to accessory crimes, it is not necessary to that conclusion. The fact remains that G.L. c. 274, § 4 defines the crime of being an accessory after the fact 'in common law form,' Devlin, 366 Mass. at 137, even though the accessory's sentence is no longer directly linked to that of the principal.Id.
It is important to emphasize that in accordance with 28 U.S.C. § 2254(d)(1), the federal habeas court cannot grant Petitioner's habeas request simply because it might believe that the state court's application of law was incorrect. Williams, 529 U.S. at 405; Kibbe, 269 F.3d at 36. Indeed, whether the federal court would have reached a different conclusion regarding the intent of the Massachusetts legislature is entirely irrelevant. The SJC here engaged in a disciplined examination of the contested issue, addressing Petitioner's arguments in arriving at its decision. Because the SJC's holding is not so capricious or "arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes," O'Brien v. Dubois, 145 F.3d at 25, Petitioner's request for habeas relief under the "unreasonable application" clause of 28 U.S.C. § 2254(d)(1) necessarily fails.
III. CONCLUSION
For the reasons set forth more fully above, I hereby DENY Petitioner's application for a writ of habeas corpus.