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Widener v. Cowen

United States District Court, D. Massachusetts

January 25, 2019

JAMES L. WIDENER, Petitioner,
v.
BRAD COWEN, Respondent.

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Petitioner James Widener (“Widener”) has filed a petition seeking a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. D. 1. Respondent Brad Cowen (“Cowen”), Superintendent of the Massachusetts Correctional Institution at Norfolk, opposes the Petition and has moved to dismiss. D. 11. For the reasons stated below, the Court ALLOWS the motion to dismiss, D. 11, and DENIES the Petition, D. 1.

         II. Standard of Review

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) federal courts may review petitions for habeas petitions that have resulted in either a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law” or “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). As an initial matter, a petitioner must show that he has exhausted all of his state court remedies or, in the alternative, that the State did not offer appropriate corrective measures. Id. To successfully carry the burden of proving exhaustion, the petitioner must demonstrate that he has “fairly and recognizably” presented his claim to the state's highest court, the Supreme Judicial Court in this case. Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000); Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir. 1997) (noting that “the decisive pleading [regarding exhaustion] is the application for further appellate review, and [the Court] must determine whether the petitioner fairly presented the federal claim to the [Supreme Judicial Court] within ‘the four corners' of that application”).

         III. Factual and Procedural Background

         The following facts are drawn from the state court record.[1]

         The charges against Widener arose out of a police investigation of a string of robberies in Plymouth and Bristol Counties that started in September 2010. S.A. 292-93. In January 2011, the police learned through a confidential informant that Widener was in Florida purchasing drugs and firearms to redistribute in Massachusetts. S.A. 303. Through recorded conversations provided by the Bureau of Alcohol, Tobacco, Firearms and Explosives, police learned that Widener planned on returning to Massachusetts in late January, that his girlfriend Briana Tobin would likely be with him and that he was in possession of a gray Jeep Commander. S.A. 304-06. On February 2, 2011, the police received information placing Widener in Massachusetts. S.A. 305. Within twenty-four hours of receiving this information, police “observed [Widener] on Route 3A in Kingston, Massachusetts, in a gray Jeep Commander, with a woman matching Tobin's description.” S.A. 271. The police followed the car until it stopped at a gasoline station, where Widener exited the vehicle. S.A. 271. As Widener was returning to the vehicle, police officers identified themselves and approached him. S.A. 271; S.A. 309. Widener then fled by foot and was apprehended shortly thereafter. S.A. 272.

         After Widener was apprehended, a different officer approached Tobin, who was still in the vehicle, and ordered her to put her hands where the officer could see them. S.A. 272. Rather than complying with this order, Tobin continued to move around in the vehicle, which prompted the officer to open the vehicle door and remove her. S.A. 272. As he removed Tobin, the officer observed a firearm on the floor of the passenger side. S.A. 272. While the vehicle was secured, the police then applied for a warrant to search the vehicle. S.A. 245. After receiving the warrant, the police executed the search, which resulted in the seizure of the firearm and ammunition. S.A. 245.

         Widener was subsequently charged with unlawful possession of a firearm, unlawful possession of a large capacity feeding device, resisting arrest, driving with a suspended license and committing a firearms offense with three or more prior violent or drug-related crimes. S.A. 1-3. On June 15, 2012, Widener moved to suppress evidence seized from his vehicle in state court. S.A. 8. At the October 26, 2012 suppression hearing, after hearing testimony from three officers, S.A. 290; S.A. 331; S.A. 373, the court denied the motion to suppress. S.A. 407. The court found that the officers acted appropriately when they acted with caution in approaching both Petitioner and his girlfriend because “given this [Petitioner] and his background, ” the officers had “a good basis to believe that he would be armed or have ready access to firearms.” S.A. 404. Regarding Tobin, the court found that “she very well . . . could be viewed by the police as a confederate of Mr. Widener, a confederate prepared to assist him in a variety of different ways, including the violent upset of his arrest, perhaps being armed herself.” S.A. 404. That she did not heed to the officer's command to show her hands would have only increased the officer's suspicion of her, and thus the officer was justified in using his own force to have her exit the vehicle. S.A. 405. The court further found that arresting Tobin on site was a “reasonable means to neutralize [the] present threat[] temporarily at the scene.” S.A. 406. However, once an officer saw the firearm in plain sight, they had probable cause to arrest her for possession of a firearm. S.A. 406. Moreover, the court found that it was within the rights of the police to secure the Jeep by driving it to another location, to ensure it would remain undisturbed until a search warrant could be obtained. S.A. 407. Thus, the court denied the motion to suppress. S.A. 407.

         On June 4, 2015, a jury returned a guilty verdict against Widener on the unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a large capacity feeding device and unlawful possession of a loaded firearm charges. S.A. 1-3; S.A. 12; S.A. 244.

         As to sentencing, the court held that a sentence enhancement under the Massachusetts Armed Career Criminal Act (“ MA ACCA”) applied. S.A. 13. The MA ACCA, Mass. Gen. L. c. 269, § 10G(c), provides that “[w]hoever, having been previously convicted of three violent crimes or three serious drug offenses, or any combination thereof totaling three . . . violates the provisions . . . of said section 10 . . . shall be punished by imprisonment in the state prison for not less than 15 years nor more than 20 years.” The statute defines a “violent crime” as “any crime punishable by imprisonment for a term exceeding one year” and that also has one of the following characteristics: “(i) has as an element the use, attempted use or threated use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another.” Mass. Gen. L. c. 269, § 10G(e). Part (i) of the statute is known as the “force clause, ” and part (iv) is known as the “residual clause.” The Commonwealth produced evidence that Widener was convicted of the following crimes on the following dates: assault and battery on July 19, 2001, assault and battery with a dangerous weapon (“ABDW”) on March 18, 2004, possession with intent to distribute class B controlled substance on January 8, 2008, and ABDW on January 11, 2008. S.A. 247. Because Widener was found to have “been previously convicted of three violent crimes or three serious drug offenses, or any combination thereof totaling three, arising from three separate incidences, ” the court sentenced him to the mandatory minimum enhanced sentence of fifteen years. S.A. 247. The trial judge, however, did not specify which convictions she relied upon when concluding that Widener had the requisite number to qualify for enhanced sentencing. S.A. 248.

         In May 2016, Widener appealed to the Massachusetts Appeals Court, raising three grounds for relief, two of which-denial of his motion to suppress and that the trial court erred in finding that he could be sentenced pursuant to the MA ACCA-he has now raised in the Petition. S.A. 39; S.A. 46; S.A. 140. With regard to the first claim, the Appeals Court held that the officer's exit order to Tobin was based on a reasonable concern for officer safety, as the officer has reason to believe that Tobin had access to firearms in the car and was prepared to assist Widener in resisting arrest. S.A. 246. Thus, the Massachusetts Appeals Court found no error in the denial of Widener's motion to suppress. S.A. 246.

         With regard to the other claim on appeal that he raises in the Petition, Widener challenged his sentence pursuant to the MA ACCA on two grounds. First, he argued that assault and battery with a dangerous weapon was not a violent crime within the meaning of the MA ACCA. S.A. 141. Second, he argued his 2008 convictions of assault by means of a dangerous weapon and possession with intent to distribute a class B controlled substance resulted from sentences imposed at a single hearing and thus could not have arisen from separate incidences, as is legally required. S.A. 147. The Appeals Court did not grant relief pursuant to the first ground raised, citing a Supreme Judicial Court decision that ruled that reckless battery is “sufficient to qualify as a violent crime within the meaning of the ACCA.” S.A. 248 (citing Commonwealth v. Eberhart, 461 Mass. 809, 818-19 (2012). The Appeals Court saw “no reason to reach a different result with the more serious crime of [assault and battery with a dangerous weapon].” S.A. 248. The Appeals Court did, however, agree with Widener with respect to his second ACCA argument, that his 2008 convictions could not be treated as separate incidences. Because the judge ruling on this matter did not specify what convictions she based her ruling on, the Appeals Court remanded the case for resentencing to allow the trial judge to determine whether, in ...


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