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Bone v. Attorney General of State

United States District Court, D. Massachusetts

December 16, 2015

ELSTON BONE, Petitioner,
v.
THE ATTORNEY GENERAL OF THE STATE OF MASSACHUSETTS, et al., Respondents

          Elston Bone, Petitioner, Pro se, Malden, MA.

         For The 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.

         MEMORANDUM AND ORDER

         ALLISON D. BURROUGHS, UNITED STATES DISTRICT JUDGE.

         On 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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).[1] 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.

         After 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.

         On 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.

         In 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).

         On 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].[2] 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].

         II. LEGAL STANDARD

         A 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 that adjudication:

(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).

         A 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).

         III. DISCUSSION

         a. Ground I: Fourth Amendment

         In his 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 ...


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