United States District Court, D. Massachusetts
Bone, Petitioner, Pro se, Malden, MA.
Attorney General of the State of Massachusetts, Commonwealth
of Massachusetts, Norfolk County Superior Court, Commonwealth
of Massachusetts, Commissioner of Department of Corrections,
Commonwealth of Massachusetts, The Commissioner of the
Department of Probation, Commonwealth of Massachusetts,
Respondents: Todd M. Blume, LEAD ATTORNEY, Office of the
Attorney General, Boston, MA.
D. BURROUGHS, UNITED STATES DISTRICT JUDGE.
January 6, 2011, following a jury trial in Norfolk County
Superior Court, Elston Bone (" Bone" ) was
convicted of five counts of unlicensed possession of a
firearm and two counts of improper storage of a firearm. He
was sentenced to four years supervised probation, and to six
concurrent four-year probationary terms. Before the Court is
Bone's petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254. For the reasons stated herein,
Bone's petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
September 18, 2007, three Randolph, Massachusetts police
officers were dispatched to an apartment at 8 Francis Drive
in response to a 911 call from Bone's wife, Lucretia Bone
(" Ms. Bone" ). Commonwealth v. Bone, 84
Mass.App.Ct. 1106, 991 N.E.2d 189 (2013). When the officers
arrived, Ms. Bone reported that her husband had become
enraged by something she had said that day while they were at
the gym, and that when the two got home, he threw her into
the bedroom closet, jumped on her, slapped her, and tried to
choke her, before departing in her car.
recounting the incident to the officers, Ms. Bone volunteered
that there were several firearms belonging to Bone in the
apartment and led the officers to the one bedroom in the
apartment. She removed a Ruger handgun with a fully loaded
magazine from the nightstand. The weapon did not have a
trigger or safety lock. The officers then asked if there were
any other weapons in the apartment. Ms. Bone directed them to
two shotguns and a fully loaded rifle without a locking
mechanism that were under the bed and to ammunition in the
closet. The officers took the firearms and ammunition with
them when they left. The next day, they determined that Bone
did not possess a Massachusetts firearm identification
(" FID" ) card.
January 6, 2011, following a three-day jury trial in Norfolk
County Superior Court, Bone was convicted of five counts of
unlicensed possession of a firearm, Mass. Gen. L. ch. 269,
§ 10(h)(1), and two counts of improper storage of a
firearm, Mass. Gen. L. ch. 140, § 131L(a). He was
sentenced to four years supervised probation for one count of
unlicensed possession, and to six concurrent four-year
probationary terms for the remaining counts.
September 2011, Bone appealed his conviction to the
Massachusetts Appeals Court (" Appeals Court" ),
claiming that: (1) the seizure of firearms and ammunition
from his apartment violated the Fourth Amendment; (2) a
statement of his wife admitted at trial was hearsay and
therefore used in violation of the Sixth Amendment; (3) his
motion for a required finding of not guilty as a matter of
law should have been granted; (4-5) the jury instructions on
improper storage of a firearm and possession of a firearm
were erroneous; and (6) his convictions violated the Second
Amendment. In an August 26, 2013 opinion, the Appeals Court
denied Bone's appeal. Bone, 84 Mass.App.Ct. at 1106. Bone
then applied to the Massachusetts Supreme Judicial Court
(" SJC" ) for further appellate review, but the SJC
declined to hear his appeal. Commonwealth v. Bone,
466 Mass. 1106, 996 N.E.2d 473 (2013).
August 22, 2014, Bone filed a petition for a writ of habeas
corpus with this Court. [ECF No. 1]. On February 23, 2015,
the Court allowed respondent's Motion for an Order to
Comply with Rule 2(c) of the Rules Governing Section 2254
Cases, [ECF No. 19], and Bone filed a conforming petition on
April 2, 2015 [ECF No. 21]. Bone's petition
raises eight, at times overlapping, claims for habeas relief.
These include the grounds originally appealed to the Appeals
Court, as well as the new argument that he possessed a New
Hampshire concealed weapon license at the time the firearms
were discovered and therefore should not have been convicted
of unlicensed possession. On June 26, 2015, Bone filed his
memorandum of law in support of his petition for a writ of
habeas corpus, [ECF No. 29], and respondents filed their
memorandum of law in opposition on October 9, 2015 [ECF No.
43]. Bone filed supplemental memoranda of law on October 13,
2015 and November 17, 2015. [ECF Nos. 44 & 45].
federal district court's review of a state criminal
conviction is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (the " AEDPA" ). AEDPA
permits federal courts to grant habeas relief after a final
state adjudication of a federal constitutional claim only if
(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 the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is "
contrary to" clearly established Supreme Court precedent
if the state court arrives at a conclusion opposite that
reached by the Supreme Court on a question of law or if the
state court decides a case differently from a decision of the
Supreme Court on a materially indistinguishable set of facts.
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court decision is
considered an unreasonable application of Supreme Court
precedent if the state court identifies the correct legal
rule but unreasonably applies it to the facts. Id.
at 407. An unreasonable application requires " some
increment of incorrectness beyond error." Norton v.
Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (internal
quotations omitted). Lastly, a state court judgment is based
on an unreasonable determination of the facts if the decision
is " objectively unreasonable in light of the evidence
presented in the state-court proceeding." Miller-El
v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003).
federal court cannot grant habeas relief to a state prisoner
unless the prisoner has first exhausted his federal
constitutional claims in state court. 28 U.S.C. §
2254(b)(1)(A). " The state prisoner must give the state
courts an opportunity to act on his claims before he presents
those claims to a federal court in a habeas petition."
O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). A claim for habeas relief
is exhausted if it has been " fairly and
recognizably" presented in state court. Sanchez v.
Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting
Casella v. Clemons, 207 F.3d 18, 20 (1st Cir.
2000)). In other words, " a petitioner must have
tendered his federal claim [in state court] in such a way as
to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question."
Id. (quotations and citations omitted).
Ground I: Fourth Amendment
habeas petition, Bone contends that the firearms and
ammunition taken from the apartment were illegally seized in
violation of the Fourth Amendment and therefore should not
have been admitted at trial. [ECF No. 21 at 2]. The Appeals
Court rejected this claim for several independent reasons,
concluding that (1) the officers had probable cause to
believe that the firearms were contraband and could seize
them on that basis alone; (2) the circumstances were such
that the officers reasonably could assume that Ms. Bone had
the authority not only to allow the police access to the