United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS
ALLISON D. BURROUGHS DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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].
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). 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)).
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].
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. [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.
The Antiterrorism and Effective Death Penalty Act of
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).
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).
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.
Standard of Review
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].
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].
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.
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”).
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.
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.
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
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.].
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.
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,
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).
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.
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
Alleged Violation of Silva's Second Amendment
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.
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).
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.
considering Heller and McDonald, the First
Circuit in Powell concluded that those cases did not
create an ...