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Powell v. Tompkins

United States Court of Appeals, First Circuit

April 15, 2015

AARON POWELL, Petitioner, Appellant,

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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.

Before Torruella, Howard and Thompson, Circuit Judges. TORRUELLA, Circuit Judge, Dissenting.


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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, 459 Mass. 572, 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

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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, 372 Mass. 403, 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 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 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]

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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, 177 L.Ed.2d 894 (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, 372 Mass. 403, 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 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, 188 L.Ed.2d 698 (2014); Burt v. Titlow, 134 S.Ct. 10, 15-16, 187 L.Ed.2d 348 (2013). Powell may secure relief for claims addressed in his direct appeal if the state court's decision " was contrary to, or involved an 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, 124 S.Ct. 7, 157 L.Ed.2d 263 (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

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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, 190 L.Ed.2d 1 (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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) in support of his Due Process claim, and on District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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 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, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (addressing state law affirmative defenses); County Court of Ulster County v. Allen, 442 U.S. 140, 156-60, 99 S.Ct. 2213, 60 L.Ed.2d 777 (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 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, 470 Mass. 845, 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).

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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" for a license to publicly carry); Holden, 26 N.E.3d at 723-24, 72728 (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) 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

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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 produces evidence at trial demonstrating licensure, state law presumes that he is not so licensed. See Commonwealth v. Davis, 359 Mass. 758, 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, 369 Mass. 904, 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 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 the offense. He criticizes the SJC for following

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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, 444 Mass. 497, 829 N.E.2d 1090, 1092-93 (Mass. 2005); Commonwealth v. Anderson, 38 Mass.App.Ct. 707, 651 N.E.2d 1237, 1240 (Mass.App. Ct. 1995) (same); see also Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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. at 691 & 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, 452 Mass. 133, 891 N.E.2d 675 (Mass. 2008); Commonwealth v. Alvarado, 423 Mass. 266, 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, 407 Mass. 178, 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, 389 Mass. 159, 448 N.E.2d 1264, 1268 (Mass. 1983) (police " apparently never 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, 461 Mass. 787, 803, 965 N.E.2d 774 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

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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, 106 S.Ct. 2411, 91 L.Ed.2d 67 (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" ).

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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 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, 54 S.Ct. 281, 78 L.Ed. 664 (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. ...

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