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Dickie v. Santa

United States District Court, D. Massachusetts

March 3, 2019




         Petitioner Richard Dickie was sentenced to two concurrent two-year and six-month terms following convictions-on a theory of joint venture-for illegal possession and sale of a large capacity weapon in violation of Mass. Gen. Laws ch. 269, §§ 10(m) and 10F(a). Presently before the Court is Richard Dickie's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. [ECF No. 1]. Petitioner argues that the state courts violated his due process rights by permitting a jury to convict him without finding that his coventurer, his brother Jonathan Dickie, was not licensed and not otherwise authorized to possess and sell the firearm at issue. For the reasons explained herein, the Court DENIES the petition for a writ of habeas corpus.


         In reviewing a habeas petition from an individual in custody pursuant to the judgment of a state court, federal courts are required to presume that factual determinations made by the state courts are correct. 28 U.S.C. § 2254(e)(1). Following a trial, Petitioner was convicted by a jury. Because the state courts have not summarized the facts underlying his conviction on appeal, see Commonwealth v. Dickie, No. 12-P-660, 28 N.E.3d 11 (Table), 2015 WL 1401688 (Mass. App. Ct. March 30, 2015), the factual background below is based on the trial record. [ECF No. 16 (“Record”)].

         In early February 2010, Jonathan Dickie and David Christian offered to sell Jason Stewart, who was working as a confidential informant, an AR15-type semi-automatic assault rifle for $1, 500 at 136 Smith Street in Lowell, Massachusetts. [Id. at 339-46, 362-63]. Stewart arrived at the premises wearing an electronic monitoring and recording device that captured the discussion taking place. [Id. at 20, 343-44]. Petitioner Richard Dickie, Jonathan Dickie, Jonathan's girlfriend, and David Christian were present. [Id. at 365-66]. In the kitchen, with Petitioner standing six to seven feet away, Jonathan Dickie took out the assault rifle, showed it to Stewart, and told Stewart that “only the police and the Army [are] supposed to get these.” [Id. at 86, 365-69].[1] As Stewart started to pay for the rifle, Jonathan Dickie pointed to Petitioner, saying “it's going to Richie, he had to cough it up.” [Id. at 90]. Stewart paid Jonathan Dickie, who then gave the money to Petitioner. [Id. at 367]. After purchasing the rifle, Stewart turned it over to the Bureau of Alcohol, Tobacco, Firearms and Explosives, [id. at 370], and it then went to the Massachusetts State Police Crime Laboratory for examination, [id. at 395]. The Crime Laboratory determined that it was a semi-automatic rifle with a 31 live cartridge capacity magazine. [Id. at 94-95, 390-98].

         In December 2011, a jury convicted petitioner of illegally selling and possessing a large capacity weapon in violation of Mass. Gen. Laws ch. 269 sections 10(m) and 10F(a) based on a joint venture theory. Dickie, 2015 WL 1401688, at *1. “The theory of ‘joint venture' liability finds its roots in the concept of accessorial or accomplice liability.” Commonwealth v. Humphries, 991 N.E.2d 652, 658 (Mass. 2013) (quoting Commonwealth v. Zanetti, 910 N.E.2d 869, 879 (Mass. 2009)). “Thus, in order to establish liability for firearm possession under a theory of joint venture, it [was] not necessary that the Commonwealth prove that [Petitioner] had actual or constructive possession of a firearm, but only that [he] ‘was [an] accessory to another identified defendant in possessing a firearm.'” Id. (quoting Commonwealth v. Brown, 737 N.E.2d 1, 4 (Mass. App. Ct. 2000)). A potential defense to both charges was that Petitioner's coventurer, i.e. his brother, legally possessed and sold the assault rifle because he held a license or an exemption applied.[2] Massachusetts Rule of Criminal Procedure 14(b)(3), provides:

If a defendant intends to rely upon a defense based upon a license, claim of authority or ownership, or exemption, the defendant shall, within the time provided for the filing of pretrial motions by Rule 13(d)(2) or at such later time as the judge may direct, notify the prosecutor in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, a license, claim of authority or ownership, or exemption may not be relied upon as a defense. The judge may for cause shown allow a late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

         Mass. R. Crim. P. 14(b)(3); see also Humphries, 991 N.E.2d at 660-61. At no time prior to appeal, however, did petitioner assert such a defense or object to the requirement that such a defense needed to be asserted. See Dickie, 2015 WL 1401688, at *1.

         Following his convictions, Petitioner appealed to the Massachusetts Appeals Court, arguing in relevant part that requiring a joint venturer to plead a defense based on the license status of his coventurer violated Petitioner's right to due process. See id. Petitioner's appeal was stayed pending the Massachusetts Supreme Judicial Court's (“SJC”) decision in Humphries. 991 N.E.2d 652; [Record at 8]. As here, the defendant in Humphries had been convicted on firearms charges on a theory of joint venture. 991 N.E.2d at 655. In Humphries, the SJC concluded, first, that “a defendant charged with joint venture possession of a firearm bears only the burden of raising the defense of license. Once raised, the Commonwealth must prove beyond a reasonable doubt that the coventurer was not authorized to possess the firearm.” Id. at 660. Second, Humphries, citing the plain text of Massachusetts Rules of Criminal Procedure Rule 14(b)(3) and SJC precedent, concluded that a “[f]ailure to provide notice under rule 14 ‘renders the claim [of license] unavailable as a defense.'” Humphries, 991 N.E.2d at 661 (quoting Commonwealth v. O'Connell, 783 N.E.2d 417 (Mass. 2003)); see also Mass. R. Crim. P. 14(b)(3).

         Following the ruling in Humphries, the Appeals Court affirmed Petitioner's convictions, noting that “the obligation to plead the statutory exception, ” i.e. the defense of license, “rests with the defendant, whether he is charged as a principal or as a joint venturer. The defendant failed to raise any such defenses at trial. Accordingly, they are unavailable to him now.” Dickie, 2015 WL 1401688, at *1 (internal citation omitted). On June 4, 2015, the SJC denied further review. Commonwealth v. Dickie, 32 N.E.3d 316 (Table) (Mass. 2015). On October 5, 2015, Petitioner filed his petition for a writ of habeas corpus in this Court. [ECF No. 1].


         Petitioner asserts one ground for federal habeas relief: that permitting his conviction without requiring the Commonwealth to prove that his coventurer was not licensed to possess and sell the firearm at issue violated his Fourteenth Amendment right to due process. [ECF No. 19 at 8]. Respondent argues that Petitioner's claim that his due process rights were violated was waived under state law by his failure to raise the issue at trial, and that, even if Petitioner has not defaulted on his claim, it nevertheless fails under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). [ECF No. 26].

         a. Adequate and Independent State Grounds

         Generally, “federal habeas review is precluded ... when a state court has reached its decision on the basis of an adequate and independent state-law ground.” Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)). “Typically, ‘the fact that a claim is procedurally defaulted in state court is an adequate and independent state ground precluding federal habeas relief.'” Hodge v. Mendonsa, 739 F.3d 34, 43 (1st Cir. 2013) (quoting Walker v. Russo, 506 F.3d 19, 21 (1st Cir. 2007)). This rule reaches those situations in which “a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 730. “At the same time, ‘[t]he question whether a state procedural ruling is adequate is itself a question of federal law.'” Hodge, 739 F.3d at 43 (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). “To be considered an ‘adequate' ground to bar habeas review, the state procedural rule that is the basis for a procedural default ruling must be ...

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