United States District Court, D. Massachusetts
MEMORANDUM AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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]. 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
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. 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.
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.
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.
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].
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].
Adequate and Independent State Grounds
“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 ...