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Silva v. Tompkins

United States District Court, D. Massachusetts

April 25, 2019

EDSON SILVA, Petitioner,
v.
STEVEN W. TOMPKINS, Respondent.

          MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS CORPUS

          ALLISON D. BURROUGHS DISTRICT JUDGE

         On September 23, 2010, following a jury trial in Boston Municipal Court, Central Division, Petitioner Edson Silva (“Silva”) was convicted of unlawful possession of a loaded firearm and ammunition without an FID card in violation of Mass. Gen. Laws ch. 269, §§ 10(a), 10(n), and 10(h) and of defacing a serial number in violation of Mass. Gen. Laws ch. 269, § 11C. Silva was sentenced to three years in the House of Corrections, followed by probation. Before the Court is Silva's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (“Petition”). [ECF No. 1]. For the reasons stated herein, Silva's Petition is denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 17, 2009, at approximately 2:15 a.m., Boston Police officers Richard McCormack and Michael Condon were on a routine patrol in a cruiser near the Uphams Corner area of Boston when they saw two individuals in the street, walking towards them. [Supplemental Answer (“S.A.”) at 402-08]. According to one of the officers, one of the individuals, Silva, left the middle of the street and moved onto the sidewalk. [Id. at 408-09]. Officer McCormack testified that he then observed Silva bend down behind a car, extend his arm, and then stand back up and continue to walk towards the officers. [Id. at 409-11]. The officer did not see anything in Silva's hand. See [id. at 474-75]. Silva was detained by the officers. [Id. at 493]. Once additional units arrived, Officer McCormack walked to the location where he had observed Silva bend down and extend his arm and retrieved a firearm. [Id. at 423- 24, 508-09]. Officer Myron Phillips testified that when Silva was told that he was being charged with illegal possession of a firearm, Silva stated “how are you going to charge me with possession, you didn't see me throw it.” [Id. at 559].

         Following his September 23, 2010 conviction on the four counts, Silva appealed to the Massachusetts Appeals Court (“Appeals Court”). Commonwealth v. Silva, No. 13-P-24, 2013 WL 6633943, at *1 (Mass. App. Ct. Dec. 18, 2013).[1] The Appeals Court agreed with Silva that his conviction for unlawful possession of ammunition was a lesser-included offense (as conceded by the Commonwealth) and reversed that conviction. Id. The Appeals Court then affirmed Silva's three remaining convictions in an opinion that specifically rejected three of the other arguments raised by Silva, and summarily rejected the remaining arguments. See id. at *1-2 & n.1. The Appeals Court rejected Silva's arguments that (1) the trial court's instruction to the jury regarding reasonable doubt was inadequate; (2) the prosecutor's closing argument was improper when it analogized Silva's case to a “junk drawer” and a “distraction” and that (3) the trial judge erred in denying his motion to suppress, finding that the police officers had a reasonable suspicion to stop him. Id. The Appeals Court rejected Silva's remaining arguments in a footnote, stating that “[t]o the extent that we do not address separately each of the defendant's other contentions, ‘they have not been overlooked. We find nothing in them that requires discussion.'” Id. at *2 n.1 (quoting Dep't of Rev. v. Ryan R., 816 N.E.2d 1020, 1027 (Mass. App. Ct. 2004)).

         Silva then applied to the Massachusetts Supreme Judicial Court (“SJC”) for further appellate review but, on February 28, 2014, the SJC declined to hear his appeal. Commonwealth v. Silva, 6 N.E.3d 546 (Mass. Feb. 28, 2014) (table). Silva did not seek certiorari to the U.S. Supreme Court and filed this Petition on March 5, 2015, more than ninety days after the SJC's denial of further review. [ECF No. 1].

         Silva's Petition initially raised twelve issues (some with subparts), including the three issues specifically discussed by the Appeals Court, as well as the nine additional issues upon which relief was summarily denied. See [ECF No. 1-1]. On May 8, 2015, Steven W. Tomkins (“Respondent”) filed his answer to the Petition and moved to dismiss, arguing that because certain issues were not exhausted in the Massachusetts state courts, the Petition should be dismissed in its entirety. [ECF Nos. 9, 11, 12]. In response to this motion, Silva sought leave to voluntarily dismiss the three claims that Respondent asserted were not properly exhausted in the state courts. [ECF No. 15]. This Court granted the motion, dismissed the three unexhausted claims, and allowed Petitioner to proceed on the remaining nine claims.[2] [ECF No. 16]. On November 12, 2015, Respondent filed his Memorandum of Law in Opposition to the Petition. [ECF No. 20]. This opinion addresses the remaining claims raised by Silva.

         II. LEGAL STANDARD

         A. The Antiterrorism and Effective Death Penalty Act of 1996[3]

         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”). 28 U.S.C. § 2254. The 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(a), (d)(1)-(2). 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 (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). 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 (2003). The petitioner carries the burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In conducting a habeas review, a federal court is limited to deciding whether the conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Furthermore, “[e]rrors based on violations of state law are not within the reach of federal habeas petitions unless there is a federal constitutional claim raised.” Kater v. Maloney, 459 F.3d 56, 61 (1st Cir. 2006).

         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). “[T]he 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 (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).

         “[A] state court decision that does not address the federal claim on the merits falls beyond the ambit of AEDPA. When presented with such unadjudicated claims, the habeas court reviews them de novo.” Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010). However, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). “Section 2254(d) applies even where there has been a summary denial.” Cullen, 563 U.S. at 187.

         B. Standard of Review

         Silva argues that this Court should review each of his habeas claims de novo because the Appeals Court did not adjudicate his claims on the merits. [ECF No. 1-1 at 16]. In general, as Silva acknowledges, when a state court issues an order that summarily rejects without discussion a habeas petitioner's claims, the reviewing habeas court is to presume (subject to rebuttal) that the federal claim was adjudicated on the merits. [Id. at 17]. Here, the Appeals Court discussed three issues raised by Silva in its opinion, and rejected the remainder in a footnote, where it stated that “[t]o the extent that we do not address separately each of the defendant's other contentions, ‘they have not been overlooked. We find nothing in them that requires discussion.'” Silva, 2013 WL 6633943, at *2 n.1 (quoting Dep't of Rev. v. Ryan R., 816 N.E.2d 1020, 1027 (Mass. App. Ct. 2004)). Because of the summary disposition of some of his arguments by the Appeals Court, Silva argues that this Court should reject the presumption that all of his claims were adjudicated on the merits. [ECF No. 1-1 at 24].

         In support of the argument that the Appeals Court did not render a judgment on the merits, Silva cites Johnson v. Williams, 568 U.S. 289, 302 (2013), in which the Supreme Court explained that a judgment is rendered on the merits if it was “delivered after the court . . . heard and evaluated the evidence and the parties' substantive arguments.” [ECF No. 1-1 at 24-25 (emphasis in brief)]. Silva argues that there “has been no evaluation and analysis of [his] federal constitutional claim because the Appeals Court expressly and deliberately chose not to even discuss them.” [Id. at 25].

         Silva underestimates the import of Johnson and other precedent, which explain the high bar that a petitioner must satisfy in order for a district court to review a habeas petition de novo. In Johnson, the Court explained that “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits-but that presumption can in some limited circumstances be rebutted.” 568 U.S. at 301. Here, the Appeals Court expressly addressed all of Silva's claims: its opinion discussed three of the claims in some detail and summarily rejected Silva's remaining arguments. Silva, 2013 WL 6633943, at *2 n.1. Silva has offered no evidence suggesting that the Appeals Court did not address his claims on the merits. Without making some showing that the Appeals Court did not adjudicate his claims on the merits, coupled with the fact that the Appeals Court addressed all of his arguments (even if summarily), Silva has not rebutted the presumption of adjudication on the merits.

         Further, this is also not a case where the state court inadvertently overlooked a federal claim because the Appeals Court expressly denied the remaining claims and noted that they did not require discussion. See Johnson, 568 U.S. at 303 (stating that “[w]hen the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge”).

         Supreme Court precedent also forecloses any argument that the summary disposition of certain issues by the Appeals Court does not qualify as a disposition on the merits. See, e.g., Cullen, 563 U.S. at 187 (“Section 2254(d) applies even where there has been a summary denial”). The Supreme Court in Harrington v. Richter, 562 U.S. 86 (2011), observed that § 2254(d), by its terms, “bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (2)” and does not expressly “requir[e] a statement of reasons.” 562 U.S. at 98. The Harrington Court added that “determining whether a state court's decisions resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning.” Id. “[Section] 2254(d) does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Id. at 100.

         This Court therefore rejects Silva's argument that the claims presented to the Appeals Court were not adjudicated on the merits. Silva has not made the necessary showing to rebut the presumption of adjudication on the merits and further, the Appeals Court did actually address each of his claims. Accordingly, Silva's Petition will not be reviewed de novo and to obtain relief, he must instead show that the state court's decision “was contrary to” “clearly established” federal law or that the state court's decision “involved an unreasonable application of such law.” Harrington, 562 U.S. at 100.

         III. DISCUSSION

         A. Alleged Violation of Silva's Due Process and Fair Trial Rights Based on Prosecution's Failure to Plead and Prove Silva Lacked a License to Carry a Firearm

         Silva argues that his due process and fair trial rights were violated by the prosecution's failure to prove beyond a reasonable doubt that he lacked a license to carry a firearm and further, that the burden of proof was improperly shifted onto him to show that he had a firearms license because “a lack of a license is a factual element of the offense of ‘possession of a firearm without a license.'” [ECF No. 1-1 at 31]. Silva further claims that requiring proof of a firearms license to be proven as an affirmative defense violates his due process rights as set forth in In re Winship, 397 U.S. 358 (1970), and that his conviction violates his fair trial and due process rights under Alleyne v. United States, 570 U.S. 99 (2013), because any fact that increases a mandatory minimum sentence is an element that must be proven to a jury beyond a reasonable doubt. [Id.].

         Respondent answers that Silva's arguments are largely foreclosed by Powell v. Tompkins, 783 F.3d 332 (1st Cir. 2015). [ECF No. 20 at 14]. In Powell, the defendant was convicted on state charges of unlawful possession of a loaded firearm, which was affirmed by the SJC. 783 F.3d at 334. Powell unsuccessfully petitioned for habeas relief in federal court. Id. Powell then argued to the First Circuit that “the state criminal procedure requirement that a defendant accused of unlawful possession of a firearm bear the burden of producing evidence of a proper license as an affirmative defense” violated his federal due process rights. Id. The First Circuit in Powell addressed whether “the state law prescription of licensure as an affirmative defense . . . accords with procedural due process under the Federal Constitution [or] is contrary to, or comprises an unreasonable application of, clearly established Supreme Court precedent.” Id. at 341. In rejecting Powell's due process argument, the First Circuit held that he failed to establish that the state court's decision conflicted with clearly established Supreme Court precedent and noted that Powell failed to cite “even a single roughly comparable federal case in which a state conviction secured under a statutory construct that is analogous to Massachusetts law was set aside as violating the Winship due process demands.” Id. at 335, 343.

         Because Powell governs this case and there is no clearly established federal law to the contrary, the Court declines to find that Silva's due process rights were violated by a state law that provides that possession of a firearms license is an affirmative defense. See id. at 337-43. As the Supreme Court has recognized, although “[s]tates must prove guilt beyond a reasonable doubt with respect to every element of the offense charged, [] they may place on defendants the burden of proving affirmative defenses.” Gilmore v. Taylor, 508 U.S. 333, 341 (1993).

         The Court also rejects Silva's argument that he was deprived of his due process or fair trial rights under Alleyne by being required to prove that he had a firearms license. See [ECF No. 1-1 at 31-33]. Alleyne held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element' that must be submitted to the jury and found beyond a reasonable doubt.” 570 U.S. at 103. Silva's reliance on Alleyne is misplaced, however, because the fact of whether he had a firearm license is an element of an affirmative defense, not a fact that increases the mandatory minimum sentence. See United States v. Blake, 858 F.3d 1134, 1137 (8th Cir. 2017) (rejecting argument under Alleyne that affirmative defense must be decided by a jury and proven beyond a reasonable doubt because the affirmative defense could not increase the defendant's penalty); United States v. Zuniga, 767 F.3d 712, 719 (7th Cir. 2014) (concluding that affirmative defense was not covered by Alleyne and thus did not require proof beyond a reasonable doubt).

         The statutory scheme in Massachusetts demonstrates that the fact of licensure is an affirmative defense. Section 7 of Chapter 278 provides that licensure must be proven by the defendant seeking to rely on that fact as a defense. See Mass. Gen. Laws ch. 278, § 7 (“A defendant in a criminal prosecution, relying for his justification upon a license . . . shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.”). The SJC interpreted Section 7 as applying to prosecutions under Mass. Gen. Laws ch. 269, § 10(a) in Commonwealth v. Jones, 361 N.E.2d 1308 (Mass. 1977), in which it held:

We sum up the established interpretation of G.L. c. 278, s 7, as it applies to prosecutions under G.L. c. 269, s 10(a). The holding of a valid license brings the defendant within an exception to the general prohibition against carrying a firearm, and is an affirmative defense. . . . Absence of a license is not “an element of the crime, ” as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist.

Jones, 361 N.E.2d at 1310-11 (internal citations omitted). This Court is bound to follow the SJC's interpretation of Massachusetts statutes. See Powell, 783 F.3d at 340. Because licensure was a factual element of Silva's affirmative defense and not an element of the crime charged, Silva's lack of a license did not need to be proven beyond a reasonable doubt by the prosecution in order to support the conviction.

         Accordingly, the Court finds that the Appeals Court's rejection of Silva's claims that his due process and fair trial rights were violated was not contrary to federal law established by In re Winship and Alleyne and also did not involve an unreasonable application of clearly established federal law.

         B. Alleged Violation of Silva's Second Amendment Rights

         Silva challenges his convictions as violative of the Second Amendment. [ECF No. 1-1 at 35]. He argued to the Appeals Court that the Supreme Court's rulings in McDonald v. Chicago, 561 U.S. 572 (2010), and District of Columbia v. Heller, 554 U.S. 570 (2008), require that his convictions relating to the possession of a loaded firearm without a license be reversed. [Id. at 35-36; S.A. at 57-58 (“This ‘general prohibition' in Massachusetts [against carrying a firearm established by Mass. Gen. Laws ch. 269, §10] violates Silva's 2nd amendment right to keep and bear arms and as such, his firearms conviction must be vacated.”)]. The Appeals Court summarily rejected this argument, Silva, 2013 WL 6633943, at *2 n.1, and this Court concludes that its decision was neither contrary to, nor involved an unreasonable application of, clearly established federal law.

         In Heller, the Supreme Court held that the District of Columbia's complete ban on handgun possession in the home violated the Second Amendment, as did its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. 554 U.S. at 635. In McDonald, the Court subsequently held that the Due Process Clause of the Fourteenth Amendment, by incorporation, makes the Second Amendment binding on the States. 561 U.S. at 791. Heller, however, also recognized that the right to bear arms “secured by the Second Amendment is not unlimited, ” 554 U.S. at 626, and McDonald reaffirmed that “Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'” 561 U.S. at 786 (quoting Heller, 554 U.S. at 626).

         Silva argues that under the Second Amendment, “individuals are guaranteed the right to possess and carry weapons in case of confrontation [and that] this right cannot be infringed upon by the federal or state government.” [ECF No. 1-1 at 35]. Neither Heller nor McDonald went so far with Heller holding only that “the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Heller, 554 U.S. at 635. Thus, the Supreme Court did not recognize a general, unlimited right to carry a firearm outside the home in either case.

         In considering Heller and McDonald, the First Circuit in Powell concluded that those cases did not create an ...


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