United States Court of Appeals
For the First Circuit
No. 02-2214
CARLOS LUNA,
Petitioner, Appellant,
v.
COMMONWEALTH OF MASSACHUSETTS,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Willie J. Davis with whom Davis, Robinson & White, LLP was on
brief for petitioner.
Dean A. Mazzone, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief for
respondent.
January 9, 2004
BOUDIN, Chief Judge. Carlos Luna appeals from the
district court's denial of his petition for a writ of habeas
corpus. Luna, a former Boston police officer, was convicted of
perjury and filing false reports. The background events are
complicated, see Commonwealth v. Lewin, 542 N.E.2d 275, 276-83
(Mass. 1989), but an abbreviated version suffices for the issues
raised on this appeal.
In February 1988 Luna applied for a search warrant for a
Dorchester apartment, claiming in an affidavit attached to the
application that a confidential informant had told him that a short
Hispanic male had been distributing cocaine from the premises.
Luna also claimed that he had purchased cocaine at the apartment
from a Hispanic male on February 15 and 16, 1988. In the ensuing
raid, a police officer named Sherman Griffiths was shot by someone
inside the apartment. Albert Lewin, a tall black man, was arrested
and charged with Griffiths' murder.
Luna's search warrant affidavit was materially false.
The drug purchases on February 15 and 16, 1988, had been made
respectively by two other confidential informants--not by Luna and
not in his presence. Further, the informant who had initially
tipped off the police to the drug activity at the apartment had not
reported to Luna, as Luna had claimed in the affidavit, but had
instead reported to another officer who then passed the information
along to Luna. Finally, Luna had also said in the search warrant
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affidavit that he had witnessed unusual foot traffic going to the
apartment and had witnessed other transactions there, but these
statements were untrue.
Nevertheless, at a probable cause hearing following
Lewin's arrest, Luna testified in accordance with the lies in the
search warrant affidavit. He also submitted police reports
describing the February 15 and 16 drug purchases he had allegedly
made. When a state court ordered Luna to reveal his supposed
original informant, Luna made up a name and physical description;
and when ordered to produce the informant, Luna and others engaged
in a spurious search, in the course of which Luna filed further
false reports.
In due course the indictment against Lewin was dismissed
for failure to produce the informant, a potentially exculpatory
witness. At the hearing prior to the dismissal, Luna had told
additional lies consistent with his search warrant affidavit and
his subsequent false identification of the informant. Then,
through an anonymous tip, the prosecutor learned the name of the
informant who had in fact made the February 15 drug purchase and
asked for reinstatement of the indictment. The state court asked
the prosecutor to try to obtain affidavits from Luna and other
officers.
During early March 1989, Luna met a number of times with
Mark Sullivan, retained as Luna's private counsel at his union's
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expense. On March 12, 1989, Luna executed an affidavit admitting
inter alia that he had lied in the search warrant affidavit, that
the information contained in the search warrant affidavit did not
reflect his personal knowledge, but rather "the collective
knowledge of the police squad members[,] and that he had
substituted himself as the drug purchaser [in the search warrant
affidavit] in order to protect the informants." Luna v.
Massachusetts, 224 F. Supp. 2d 302, 306 (D. Mass. 2002). At the
direction of Massachusetts' Supreme Judicial Court ("SJC"), Lewin's
indictment was eventually reinstated, Commonwealth v. Lewin, 542
N.E.2d at 276-83, but Lewin was acquitted at trial.
Meanwhile, Luna was indicted in state court on charges of
perjury and filing false reports and was convicted in June 1991 on
multiple counts of each offense. He was sentenced to five years'
probation, conditioned on his resigning from the police force. A
motion for a new trial was denied, and the SJC affirmed Luna's
conviction. Commonwealth v. Luna, 641 N.E.2d 1050 (Mass. 1994).
Then, in 1996 Luna brought the present habeas action which failed
in the district court, Luna v. Massachusetts, 224 F. Supp. at 302,
and he now appeals raising two different claims.1
1
Although Luna's probation has expired, the habeas action was
filed before this occurred. See 28 U.S.C. §§ 2241(c), 2254(b)
(2000) (only people "in custody" may file a federal habeas
petition); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (statutory
requirement is satisfied so long as the petitioner is in custody at
the time the petition is filed); Jackson v. Coalter, 337 F.3d 74,
78-79 (1st Cir. 2003) (probation counts as "custody" for purposes
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The first claim is that Luna's second affidavit,
admitting to the falsity of his original affidavit, was a coerced
confession improperly admitted at his trial for perjury and false
reporting. Luna suggests that he was ordered to file the affidavit
by the judge in the Lewin case; and, with greater vigor, Luna
asserts that his own counsel put psychological pressure on him to
file the affidavit, saying (for example) that otherwise the dead
officer's family would blame him for thwarting the prosecution of
Lewin.
Whether the confession was inadmissible under
Massachusetts law was the subject of dispute at trial and on review
in the SJC. Massachusetts law is friendly to such claims in a
number of respects: it puts the burden on the Commonwealth to prove
voluntariness beyond a reasonable doubt, allows the defendant two
bites at the apple by giving the issue separately to the trial
judge and the jury, and treats as coercion pressure exerted by
private parties as well as by official action. Commonwealth v.
Allen, 480 N.E.2d 630, 636-37 (Mass. 1985); Commonwealth v.
Tavares, 430 N.E.2d 1198, 1204-05 (Mass. 1982), cert. denied sub
of federal habeas). Mootness is avoided because a presumption
exists that a habeas petitioner continues to suffer the ill effects
of a wrongful conviction even after his sentence is served. See
Spencer, 523 U.S. at 7-14. Habeas denials can be appealed only by
permission, 28 U.S.C. § 2253(c) (2000); Fed. R. App. P. 22(b)(1),
but the district court granted a certificate of appealability on
the two grounds now before us.
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nom, 457 U.S. 1137 (1982). Compare, e.g., Lego v. Twomey, 404 U.S.
477, 489 (1972).
In the state case against Luna, the trial judge refused
to suppress the second affidavit, the jury may or may not have
considered it after making its own judgment about undue pressure,
and the SJC ruled that there was no legal error. Commonwealth v.
Luna, 641 N.E.2d at 1052 n.1. In the district court (and on this
appeal), there has been much discussion about the deferential
standards of review applied in federal habeas to, respectively,
state court findings of fact and legal rulings, 28 U.S.C. §
2254(d)-(e) (2000), but in this case the degree of deference makes
no difference to the result.
The state court judge said he wanted an affidavit from
Luna but made clear that he understood that Luna could invoke his
privilege against self-incrimination; thus, the judge did not
require Luna to file the affidavit. Whether Luna's own counsel
properly advised him about the privilege, or told Luna that others
would be unhappy if he thwarted the Lewin prosecution, is
irrelevant: under federal law, only coercion resulting from
official action--court orders, police pressure, state law--
invalidates a confession. Colorado v. Connelly, 479 U.S. 157, 164-
66 (1986); United States v. Byram, 145 F.3d 405, 407 (1st Cir.
1998).
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Luna's private attorney was not acting as a governmental
official, nor (so far as the evidence shows) at the behest of
officials, when he counseled Luna. Apparently Sullivan had earlier
worked in the prosecutor's office and his wife still worked there;
but neither circumstance made Sullivan a state actor at the time he
advised Luna.2 Massachusetts was free to exclude the affidavit on
grounds of private coercion, but, whether or not it properly
applied its own law, admitting the affidavit did not violate the
federal constitution. The fact that Sullivan was not a state actor
also disposes of Luna's contention that he did not voluntarily
waive his Fifth Amendment right to avoid self-incrimination--a
waiver of a defendant's Fifth Amendment rights is only involuntary
if it resulted from official coercion. Connelly, 479 U.S. at 170.
Luna says that the admission of the confession was
contrary to Garrity v. New Jersey, 385 U.S. 493 (1967). It was
not. In Garrity, the statements were given under compulsion of a
state law penalizing by dismissal a police officer who refused to
answer questions about his official duties. Id. at 494. The case
law has tended to construe Garrity narrowly,3 but it is wholly
2
Sullivan's wife apparently attended two of Luna's meetings
with Sullivan; in addition, it was she who typed up the affidavit
in which Luna admitted that he had lied. However, Luna does not
assert that Sullivan's wife put any pressure on him whatsoever to
file the affidavit.
3
See Dwan v. City of Boston, 329 F.3d 275, 279-80 (1st Cir.
2003); United States v. Stein, 233 F.3d 6, 16-17 (1st Cir. 2000),
cert. denied, 532 U.S. 943 (2001); Wiley v. Mayor of Balt., 48 F.3d
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irrelevant here: the state law penalty in Garrity was the
quintessence of state action. In this case the whole point is that
there was no official compulsion.
Luna's second claim of error on this appeal relates to
his own testimony at his trial. At trial Luna's affidavit was
admitted by the judge as voluntary but subject to the caveat
(required under state law) that the jury should disregard the
affidavit if the jury itself found the statement involuntary
(again, under the defendant-friendly state law standard). During
its deliberations, the jury asked whether if it did find the
confession involuntary, it could still consider Luna's trial
testimony about the affidavit--some of which had been inculpatory.
Over Luna's objection, the trial judge told the jury that
it could still consider his trial testimony. On appeal in this
court, Luna says that this was constitutional error, citing
Harrison v. United States, 392 U.S. 219 (1968). There, the Supreme
Court held that where a confession obtained in violation of federal
standards was introduced at trial and the defendant testified only
to respond to that evidence, the defendant's incriminatory
testimony was the fruit of the illegal confession and could not be
used to salvage the conviction. Id. at 220-223.
The premise of Harrison was that the original confession
(actually several confessions, 392 U.S. at 220) had been wrongfully
773, 776-77 (4th Cir. 1995), cert. denied, 516 U.S. 824 (1995).
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obtained under federal law. Id. at 222-23. Here, Luna's affidavit
was not obtained in violation of federal law for reasons explained
earlier. Whether or not the jury disregarded the Luna affidavit
under Massachusetts law does not matter. To secure relief through
federal habeas proceedings, there must be a violation of federal
law, 28 U.S.C. § 2254(a) (2000), and here there was none.
Affirmed.
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