United States Court of Appeals
For the First Circuit
No. 03-1203
GEORGE CORREIA,
Petitioner, Appellant,
v.
TIMOTHY HALL AND THOMAS REILLY,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Leslie W. O'Brien for appellant.
Dean A. Mazzone, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellees.
April 16, 2004
CYR, Senior Circuit Judge. George Correia appeals the
district court order which denied his petition for a writ of habeas
corpus, see 28 U.S.C. § 2254, in which he contended that a state
trial court judge violated due process by vindictively punishing
him for exercising his right to a jury trial on various criminal
charges. We affirm.
I
BACKGROUND
On September 8, 1995, petitioner asked a Boston-area car
dealership salesman for permission to test-drive a 1989 Corvette.
During the ensuing drive, Correia absconded with the vehicle. Four
days later, a Boston police officer saw Correia as he was driving
the Corvette in the Beacon Hill area. Unaware that the Corvette
was stolen, the officer pulled it over after noting that it had
neither a valid license plate nor a current inspection sticker. As
the officer approached the Corvette on foot, Correia abruptly sped
away from the scene, leading State and Boston police [hereinafter:
“police”] on a prolonged high-speed car chase on downtown Boston
streets and adjacent freeways. During the chase, Correia
recklessly drove the wrong way down one-way streets, crashed into
several other police and civilian vehicles, repeatedly refused
police demands to surrender at gunpoint, attempted to run over
several on-foot police officers, and finally managed to strike a
police officer with the vehicle. This vehicular rampage caused
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severe bruises and lacerations to a police officer, as well as
spinal injuries to a civilian automobile driver.
In due course, Correia was indicted in Suffolk County
Superior Court on forty-eight counts: speeding (4 counts), driving
to endanger (4), driving with a suspended license (1), assault and
battery with a vehicle (6), assault with a vehicle (6), receiving
stolen goods (2), leaving the scene after causing personal injury
or vehicular damages (17), driving the wrong way on a one-way
street (2), and failing to stop for a police officer (6).
Prior to the jury trial, Correia informed the presiding
superior court judge that he might agree to plead guilty.
Whereupon the judge informed Correia that he probably would impose
a 5-to-7 year prison sentence should Correia enter a guilty plea.
However, shortly thereafter Correia elected to proceed to trial.
Finally, disregarding the court’s advice, Correia elected to
represent himself at trial.
Following trial, the jury convicted Correia on twenty-one
of the forty-eight counts: assault and battery with the Corvette
(1 count); assault with the Corvette (1); receiving stolen goods
(2); leaving the scene after causing personal injury or vehicle
damage (11); and failing to stop for a police officer (6).1 The
1
The trial court allowed the government's pretrial motion to
dismiss 20 of the 48 counts, and the jury eventually acquitted
Correia on 5 of the 6 counts charging assault and battery with a
vehicle, and 2 of the 6 counts charging assault with a vehicle.
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trial judge denied Correia’s ensuing motions for a new trial, and
sentenced him to imprisonment for 12 to 17 years, well within the
sentencing range prescribed by statute.
The Massachusetts Appeals Court affirmed the convictions
and sentences in an unpublished opinion, and the Supreme Judicial
Court denied the ensuing application for further appellate review.
In February 2002, Correia submitted the instant habeas corpus
petition to the United States District Court for the District of
Massachusetts, which denied the requested relief and issued its
certificate of appealability. Correia now appeals from the
district court order denying the petition for habeas corpus.
II
DISCUSSION
Correia contends that the Massachusetts Appeals Court
unreasonably applied clearly established United States Supreme
Court precedent in rejecting his claim that the trial court
vindictively punished him for refusing to enter a guilty plea prior
to trial by imposing a 12-to-17 year prison term, rather than the
5-to-7 year term which would have been imposed had Correia entered
a guilty plea. As evidence of the alleged vindictiveness, Correia
relies upon (i) the large numerical differential between the
pretrial and post-trial sentencing ranges; (ii) the jury acquittals
on many of the more serious charges in the indictment; and (iii)
the comments made by the trial judge during trial, suggesting that
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the trial judge himself believed that Correia was guilty and that
the trial was a waste of judicial resources.
We review denials of habeas corpus relief de novo,
inquiring whether the state-court decision is “contrary to, or
involved an unreasonable application of, clearly established
[Supreme Court precedent].” 28 U.S.C. § 2254; see Williams v.
Taylor, 529 U.S. 362, 404-05 (2000). A state-court decision
contravenes the “unreasonable application” criterion when, though
it correctly identifies the pertinent United States Supreme Court
rule, its application to the particular facts of the case at bar is
objectively unreasonable. Id. at 409-10.
In affirming the conviction notwithstanding Correia's
"vindictive sentencing" claim, the Massachusetts Appeals Court
relied upon three grounds : (1) the trial court cited objective,
non-vindictive reasons for imposing a higher sentence following
trial; (2) the trial court neither stated nor implied that Correia
would receive a higher sentence if he did not plead guilty; and (3)
at no time did the trial court evince a belief that the trial was
a waste of judicial resources.
In the event a criminal defendant successfully appeals
his conviction and the same trial judge imposes a stiffer sentence
following a retrial, the presumption arises that the harsher
sentence was a product of judicial vindictiveness in response to
the defendant's rightful recourse to the appellate process; yet
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this presumption is rebuttable provided the record contains
objective evidence which adequately explains the more severe
sentence. See United States v. Goodwin, 457 U.S. 368, 373-74
(1982); North Carolina v. Pearce, 395 U.S. 711, 726 (1969); United
States v. Mena-Robles, 4 F.3d 1026, 1037 (1st Cir. 1993).
The same presumption may arise when a criminal defendant
rejects a plea agreement – and with it the prospect of a more
lenient sentence – and elects instead to exercise his
constitutional right to a jury trial. See, e.g., Johnson v. Vose,
927 F.2d 10, 11 (1st Cir. 1991). The two situations differ, of
course, in that a higher sentence after a remand and retrial alters
a judge’s previously imposed punishment, whereas a higher sentence
after a failed plea bargain is not a retreat from a previously
imposed sentence, and as here, is likely to reflect additional
evidence adduced at trial and the loss of a discount for pleading
guilty.
In any event, as this presumption is designed to
safeguard against the risk of actual vindictiveness – as
distinguished from the mere fact that the sentencing court decided
to impose a harsher sentence following a trial or retrial – the
presumption “arises only in circumstances ‘in which there is a
“reasonable likelihood” that the increase in sentence is the
product of actual vindictiveness.’” Id. (citing Alabama v. Smith,
490 U.S. 794, 799 (1989)) (citations omitted; emphasis added).
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Absent such a "reasonable likelihood," the aforementioned
presumption is never triggered, and the defendant must instead
establish actual vindictiveness. See id.
The record in the instant case simply cannot support a
determination that the Massachusetts Appeals Court unreasonably
applied the pertinent legal principles. See Williams, 529 U.S. at
405. First, the mere fact that the post-verdict sentence exceeded
the "plea bargain" sentence by some seven to ten years is
insufficient, in and of itself, to indicate a reasonable likelihood
of actual vindictiveness. For one thing, unlike a verdict of
guilty, an admission of guilt properly warrants the sentencing
court’s consideration of a more lenient sentence than might
otherwise be imposed in appropriate response to the defendant’s
criminal conduct. See Smith, 490 U.S. at 802. Thus, the five-to-
seven year prison sentence proffered to Correia during the plea
bargaining process does not reflect a true assessment of Correia's
criminal culpability, in that it plainly included a substantial
discount for leniency.
As for the remaining aspect of the differential, normally
the sentencing court imposes a post-verdict sentence after
considering the evidence presented at trial. In contrast, a plea-
bargained sentence normally is predicated upon a more rudimentary
record of the alleged criminal conduct, such as the description in
the indictment, and/or a presentence report. See id. at 801.
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Indeed, the sentencing judge in this case adverted to this very
consideration in sentencing Correia, explicitly observing that both
the government’s graphic trial presentation regarding the sheer
recklessness of the Correia rampage, and Correia’s apparent lack of
remorse, see id. (“[T]he defendant’s conduct during trial may give
the judge insights into [the defendant’s] moral character and
suitability for rehabilitation.”), accounted in substantial part
for the decision to impose the harsher sentence.2
2
At the sentencing hearing, the judge stated:
For the record, I wish to make a statement because
the sentence imposed here is substantially greater than
the sentence discussed at the outset of this trial when
there was the prospect of a guilty plea. Since that
time, I’ve come to know the details of the crimes
involved here and the character of the defendant a lot
better than I knew when I would have been content with a
much lower sentence. In my wildest imagination I could
find it difficult to find a worse possible scenario for
the aftermath or the consequences of a stolen motor
vehicle. As I reviewed my notes, I counted over twenty
vehicles that were damaged, smashed into some way by the
operation of that vehicle that morning. It has got to be
miraculous that no one was killed as a result of this.
There was, however, one man seriously injured and he is
still suffering the consequences of the conduct of the
defendant that day. The conduct of the defendant on the
date in question evidenced an absolutely total disregard
for the lives of anyone and the property of everyone. In
the conduct of his acts that day he viciously attacked
any police officers trying to stop him. He was obviously
going to stop at nothing, or for nothing, I should say,
and ultimately forced the police to use gunfire to stop
him on the corner of Washington and Marginal. During the
conduct of the trial, he has demonstrated absolutely no
remorse for what has gone on that day. On the contrary,
he has converted himself from a perpetrator of serious
crimes to a victim of police brutality because of the
fact that he forced them to use gunfire to stop him on
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Compared with the sparse information available to the
trial judge at the pretrial conference,3 consisting of little more
than a recitation of the charges set forth in the indictment, see
supra Section I, the trial record abundantly demonstrates not only
the gravity of the alleged criminal conduct, but the increased risk
of serious bodily harm to which Correia exposed not only the law
enforcement officers involved, but any hapless civilian who
happened to be in his way. Cf. Pearce, 395 U.S. at 723 (“A trial
judge is not constitutionally precluded, in other words, from
imposing a new sentence, whether greater or less than the original
sentence, in the light of events subsequent to the first trial that
may have thrown new light upon the defendant's ‘life, health,
habits, conduct, and mental and moral propensities.’”) (citation
that occasion. I see no prospect of rehabilitation for
this defendant and consequently have sentenced him as I
have.
3
Correia points solely to the trial judge’s pretrial
observation that Correia “practically wiped out half of the Boston
Police Department and the state troopers, according to the
charges.” (Emphasis added.) Although the quoted observation
plainly reflects a measure of hyperbole, it was neither made in the
presence of the jury nor purported to be a premature assessment of
Correia’s level of culpability, as distinguished from a recounting
of the known and undisputed consequences of Correia's conduct as
set forth in the indictment. See, e.g., Taylor v. Kincheloe, 920
F.2d 599, 608 (9th Cir. 1990) (finding trial judge's description of
charged offenses, as “execution style slayings,” not evidence of
vindictiveness, “since it is obvious that a judge may consider the
circumstances of the offense in making a sentencing decision, [and]
[Alabama v. Smith, 490 U.S. 798 (1989)] is founded on the notion
that this is exactly what we expect judges to do.”).
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omitted). For instance, when a police officer initially approached
the vehicle Correia was driving – blatantly stolen some four days
earlier in the immediate presence of a car salesman – Correia
simply sped off onto busy downtown Boston streets, even driving the
wrong way down a one-way street. When heavy traffic blocked
Correia’s escape, just as another police officer approached
Correia's stationary vehicle on foot, Correia attempted to back the
car over the officer. Whereupon the officer’s partner fired shots
as Correia sped away, at times driving directly onto sidewalks
occupied by pedestrians. Shortly thereafter, Correia drove the
vehicle directly at and struck another police officer attempting to
stop him at an intersection,4 then collided with several other
4
Correia further contends that the jury acquittals on seven of
the nine counts of assault and/or battery with a vehicle render the
trial judge’s post-verdict sentence vindictive. He maintains that
since the jury acquitted him of several charges that he assaulted
police officers, the trial court improperly considered that “[i[n
the conduct of his acts that day he viciously attacked any police
officers trying to stop him.” Correia devotes one conclusory
paragraph to this contention, and cites no supporting authority.
See United States v. Sanchez, 354 F.3d 70, 80 n.4 (1st Cir. 2004)
(noting that appellate argument raised in perfunctory manner is
waived). Although Massachusetts law arguably limits the sentencing
court's authority to consider “acquitted conduct” in imposing
sentence, see Commonwealth v. Goodwin, 605 N.E.2d 827, 830 (Mass.
1993); cf. United States v. Reyes-Echeverria, 345 F.3d 1, 7 (1st
Cir. 2003) (noting that court may sentence for acquitted conduct if
government proves it by preponderance of evidence), Correia was
convicted on two counts of assault and/or battery with the vehicle,
three counts of leaving the scene after causing personal injury,
and six counts of failure to stop for a police officer. Thus, it
was in no sense improper for the sentencing judge to point out that
Correia had “attacked” police officers. See Goodwin, 605 N.E.2d at
831 (“In making th[e] [sentencing] assessment, the judge may
consider many factors which would not be relevant at trial
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parked cars while attempting to extract himself from this same
encounter.
When yet another officer stopped him on Storrow Drive,
and approached Correia’s car with revolver drawn, Correia suddenly
reversed his vehicle into a Volvo, causing spinal injuries to its
driver. Ignoring the police officer’s orders to stop, Correia
promptly sped off over the center island separating Storrow Drive.
In so doing, he collided head-on with several vehicles in his path,
and attempted to run over two other policemen patrolling on foot,
who were forced to respond by firing their revolvers at the vehicle
which Correia was driving. While returning to downtown Boston,
Correia attempted to evade two police cruisers which were in
pursuit, drove into three cruisers positioned to road-block his
vehicle, then backed into a private vehicle, injuring its driver.
The police officers who converged upon the scene fired their
weapons at the Correia vehicle, wounding him. Undiscouraged,
Correia then proceeded to resist arrest. The police officers were
required to extract Correia forcibly from the vehicle in order to
effect the arrest.
At trial, Correia tendered the defense that (i) he
initially fled not because he was driving a stolen vehicle, but
because he was operating without a license, and (ii) he continued
including hearsay information about the defendant's character,
behavior, and background.”).
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his flight in self defense, when the police mistook him for another
armed fugitive and fired shots at him. However, the record
reflects that this "other fugitive" was black; whereas Correia is
white.
In light of the demonstrated discrepancies between the
pretrial and post-verdict records, the Massachusetts Appeals Court
conclusion – that the harsher sentence imposed by the trial judge
was based upon factors other than vindictiveness – did not remotely
constitute an unreasonable application of United States Supreme
Court precedent. “[I]f it is reasonably clear that the judge
reshaped the impost merely as a means of bringing original
sentencing intentions to fruition after some new development had
intervened, a need for employing the Pearce presumption never
arises.” United States v. Pimienta-Redondo, 874 F.2d 9, 13 (1st
Cir. 1989).5
5
For these same reasons, Correia’s reliance upon decisions
such as In re Thirteen Appeals Arising Out of San Juan Dupont Plaza
Hotel Fire, 56 F.3d 295 (1st Cir. 1995), is unavailing, given that
such decisions involved situations in which the sentencing judges
offered no rationale for imposing the harsher sentences. See id.
at 311 (“Though we have great confidence in [the district judge],
his silence on this subject leaves the award open to a perception
that appellants have been penalized for successfully prosecuting
their previous appeals.”) (emphasis added); United States v.
Mazzaferro, 865 F.2d 450, 458 (1st Cir. 1989) (“In the face of such
silence, we cannot rule out the possibility that the sentence was
imposed in retaliation for [defendant’s] insistence to stand
trial.”) (emphasis added). Also, Mazzaferro involved a direct
appeal from the conviction, as distinguished from a collateral
habeas corpus petition. Finally, in a habeas corpus proceeding,
factually similar decisions of the lower federal courts may
“inform” the habeas inquiry in some instances, but only Supreme
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Furthermore, as Correia must concede, the sentencing
judge made no comment whatsoever which might even remotely imply
that he intended to impose a harsher post-verdict sentence in the
event the defendant did not accept a plea bargain. Cf., e.g.,
United States v. Crocker, 788 F.2d 802, 808 (1st Cir. 1986)
(finding that presumption arose because sentencing court stated:
“I think imposing upon the time and resources of the Court to try
a case which should not be tried is an imposition which deserves
consideration when it comes time for me to sentence and I will do
so.”); Longval v. Meachum, 693 F.2d 236, 237 (1st Cir. 1982) (same,
where judge stated: “I strongly suggest that you ask your client
to consider a plea, because, if the jury returns a verdict of
guilty, I might be disposed to impose a substantial sentence.”).
As the instant record contains no explicit or implicit threat of
any such impermissible linkage, no presumption of vindictiveness
was triggered, see Johnson, 927 F.2d at 12 (noting that such
linkage is “crucial in establishing a reasonable likelihood of
vindictiveness”); see also Mena-Robles, 4 F.3d at 1037, and the
burden to prove actual vindictiveness resided with Correia.
In an attempt to demonstrate objective evidence of
vindictiveness, Correia contends that the trial judge made comments
during trial which suggested pique at Correia’s decision to demand
Court cases can serve as definitive benchmarks. See Rashad v.
Walsh, 300 F.3d 27, 35 (1st Cir. 2002).
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a jury trial. Quite the contrary, none of the comments even
remotely suggested that the court intended to punish Correia for
rejecting the plea agreement proffered prior to trial. In
excluding Correia’s “necessity” defense during the course of a
motion hearing, the trial judge stated: “You were a one-man
wrecking crew, and somehow this was justified in some way?” Rather
than utilizing this statement to convey his view of Correia’s
guilt, the trial judge plainly and correctly chose to express the
opinion that the far-fetched claim advanced by Correia – that he
simply eluded police in self defense – was undeserving of credence
by any rational factfinder. See United States v. Wasman, 700 F.2d
663, 666 (11th Cir. 1983) (noting that judge’s evidentiary rulings,
if correct on merits, normally are insufficient evidence of either
bias or vindictiveness), aff’d, 468 U.S. 559 (1984); Commonwealth
v. Pike, 701 N.E.2d 951, 958 (Mass. 1998) (noting that criminal
defendant not entitled to “necessity defense” instruction absent
competent evidence from which jury rationally could infer that he
had no effective legal alternative for avoiding an imminent harm,
other than to engage in criminal conduct for which he was charged).
In the other instance, the trial judge stated: “We are
not going to start at the beginning of this thing and go through
all the [police radio] transmissions, Mr. Correia, we have done
that already.” Far from an expression of displeasure that Correia
was trying his own case, the trial judge obviously was advising the
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pro se Correia – not an attorney – to refrain from introducing
plainly repetitive evidence, thereby needlessly wasting judicial
resources. See Commonwealth v. Jackson, 647 N.E.2d 401, 405 (Mass.
1995) (“[T]he judge [did not] prejudicially conduct the trial by
limiting the introduction of cumulative evidence and excluding
improper questions. No lenience is required on the part of the
judge or prosecutor toward a pro se defendant.”).
Finally, the court explained to Correia that the trial
missteps resulting from Correia’s decision to represent himself
were the product of his own voluntary decision, notwithstanding the
trial judge's contrary advice. See id. (“There is no judicial
obligation to protect a pro se defendant from his lack of legal
training.”). Rather than suggesting that the trial judge dissuaded
Correia from exercising his right to a jury trial, this observation
plainly suggests that the trial judge had encouraged Correia to go
to trial with representation by counsel.
As the Massachusetts Appeals Court reasonably could – and
did – conclude that the sentence imposed upon Correia comported
with the principles set forth in Smith, see 529 U.S. at 405, the
habeas corpus petition was properly denied.
Affirmed.
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