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Carrington v. Spencer

United States District Court, D. Massachusetts

June 23, 2015

LUIS SPENCER, Superintendent, Respondent.




In this case, Petitioner Kerr Carrington ("Mr. Carrington"), who is proceeding pro se, seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Respondent has moved to dismiss Mr. Carrington's Petition on the ground that it alleges only state law claims, which are not cognizable on federal habeas review. After the Court issued an Order to Show Cause why his Petition should not be dismissed, Mr. Carrington filed a Response, which attempted to reframe some of his arguments as federal claims. After reviewing the arguments made by Mr. Carrington and the Respondent, the Respondent's Motion to Dismiss will be allowed in part. Although the two grounds alleged in Mr. Carrington's Petition do not state a cognizable claim for habeas relief, and will therefore be dismissed, Mr. Carrington's Response to the Court's Order to Show Cause also raises a challenge to the sufficiency of the evidence supporting his convictions. The Court will construe this argument to state a federal claim under Jackson v. Virginia, 443 U.S. 307, 324 (1979), and it will permit the parties to submit further briefing addressing the merits of this claim.


Mr. Carrington is currently incarcerated at the Massachusetts Correctional Institution in Shirley, Massachusetts [ECF No. 1]. In March 2010, a Middlesex County jury convicted Mr. Carrington of one count of identity fraud, two counts of larceny by false pretenses, one count of attempted larceny by false pretenses, three counts of uttering, three counts of forgery, and two counts of being a common and notorious thief. Commonwealth v. Carrington, 84 Mass.App.Ct. 1101 (2013) (Rule 1:28 decision). The indictments charged Mr. Carrington with "engag[ing] in a pattern of conduct whereby, posing as another person, he would purchase goods and services and pay with fraudulent certified checks." Id.

Mr. Carrington filed a Notice of Appeal from his convictions. Id . On April 16, 2010, Mr. Carrington also filed a Motion for the Entry of Findings of Not Guilty, but his motion was denied by the trial judge. Mr. Carrington moved for reconsideration, but that motion was also denied. Id . Mr. Carrington then filed a second Notice of Appeal from the trial court's decision, and the Massachusetts Appeals Court (the "Appeals Court") consolidated that proceeding with his direct appeal. On July 2, 2013, the Appeals Court affirmed Mr. Carrington's convictions in a decision pursuant to Massachusetts Appeals Court Rule 1:28. See id.[1] Subsequently, Mr. Carrington filed a petition for further appellate review, which the Massachusetts Supreme Judicial Court denied on September 11, 2013. See Commonwealth v. Carrington, 466 Mass. 1103 (2013).

Habeas Petition

Mr. Carrington filed his Petition for a Writ of Habeas Corpus with this Court on July 23, 2014 [ECF No. 1]. His petition raises two grounds for relief. First, he argues that "[s]ince checks are orders, not statements, " there was insufficient evidence to support his convictions for larceny (and attempted larceny) by false pretenses [Id. p. 5]. A prosecution on the theory of larceny by false pretenses requires proof that:

(1) a false statement of fact was made; (2) the defendant knew or believed the statement to be false when he made it; (3) the defendant intended that the person to whom he made the false statement would rely on it; and (4) the person to whom the false statement was made did rely on it and, consequently, parted with property.

Commonwealth v. Reske, 43 Mass.App.Ct. 522, 524 (1997) (citations omitted). Mr. Carrington argues that because checks are merely orders to pay, they cannot be true or false, and the evidence was therefore insufficient to prove that he made a "false statement of fact" when he presented the fraudulent checks [ECF No. 1 pp. 5-6].

As his second ground for relief, Mr. Carrington poses the question "[u]nder G.L. c. 266, § 30 - can that statute universally take on all separate MGL larceny statutes?" [Id. p. 8]. Essentially, Mr. Carrington argues that the Commonwealth prosecuted him under the wrong state statute. Mr. Carrington was prosecuted and convicted under G.L. c. 266, § 30, which is titled "Larceny; general provisions and penalties." However, Mr. Carrington argues that where the Commonwealth alleged that he committed larceny by presenting fraudulent checks, he should have been prosecuted under G.L. c. 266, § 37. Section 37, which is titled "Fraudulent checks, etc.; drawing or uttering, " is a separate statute making it a crime to make, draw, utter, or deliver any check, draft, or order for payment of money upon any bank or other depository, with knowledge that the maker or drawer does not have sufficient funds for payment of the instrument. See G.L. c. 266, § 37.

On September 26, 2014, the Respondent filed a Motion to Dismiss Mr. Carrington's Habeas Petition [ECF No. 12], arguing that the Petitioner's claims are premised on state law and therefore do not provide any basis for federal habeas relief [ECF No. 13]. Mr. Carrington filed an Opposition to the Motion to Dismiss on October 22, 2014 [ECF No. 16] and an additional "Response" on October 31, 2014 [ECF No. 18].

After reviewing Mr. Carrington's filings and the authority cited therein, the Court ordered Mr. Carrington to show cause why his Petition should not be dismissed for failure to state a cognizable basis for federal habeas relief under 28 U.S.C. § 2254 [Apr. 9, 2015 Order, ECF No. 20]. The Court's Order explained that Mr. Carrington's Petition appeared to raise only state-law issues, and it instructed Mr. Carrington that if he "believes that his conviction violated the United States Constitution, Federal statutes, or treaties of ...

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