United States Court of Appeals
For the First Circuit
No. 04-1283
EDWARD PAULDING,
Petitioner, Appellant,
v.
PETER ALLEN, Superintendent of Cedar Junction-MCI at Walpole,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Stephen Hrones, with whom Hrones & Garrity was on brief, for
petitioner.
Dean A. Mazzone, Special Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on brief,
for respondent.
January 5, 2005
HOWARD, Circuit Judge. Edward Paulding appeals from the
district court's dismissal of his petition for a writ of habeas
corpus. See Paulding v. Allen, 303 F. Supp. 2d 27 (D. Mass. 2004).
Paulding was convicted by a Massachusetts jury of felony murder in
the first degree and is currently serving a life sentence. At
Paulding's state court trial, the judge instructed the jury that it
could find Paulding guilty of either first degree felony murder or
second degree murder. But at the same time, the judge declined to
instruct on the elements of second degree murder because the
evidence did not warrant a second degree murder verdict. Paulding
brought an appeal challenging these instructions as illogical.
In addressing Paulding's appeal, the Massachusetts
Supreme Judicial Court ("SJC") recognized that the trial judge's
instructions were the product of the SJC's decision in Commonwealth
v. Brown, 467 N.E.2d 188, 197 (Mass. 1984), which held that the
Massachusetts murder statute "requires a trial judge to instruct on
murder in the first and second degrees if there is evidence of
murder in the first degree, even though there appears to be no
hypothesis in the evidence to support a verdict of murder in the
second degree." This holding was based on a provision in the
Massachusetts murder statute which states that "the degree of
murder is for the jury to determine." Mass. Gen. Laws ch. 265, §
1. The Brown court interpreted this provision to require that the
jury, regardless of the evidence, have an opportunity, in every
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first degree murder prosecution, to convict the defendant of second
degree murder -- regardless of the state of the evidence. See
Brown, 467 N.E.2d at 196-97.
As a result of Paulding's appeal, the SJC overruled
Brown and held that, in first degree felony murder cases, the judge
should instruct on second degree murder only if the evidence could
support a second degree murder conviction. See Commonwealth v.
Paulding, 777 N.E.2d 135, 142-43 (Mass. 2002). Applying its new
rule, the SJC determined that there was no evidence of second
degree murder in Paulding's case. See id. at 143. Accordingly,
the SJC rejected Paulding's claim of error arising out of the trial
judge's failure to instruct on the elements of second degree
murder. See id.
In his federal habeas corpus petition, Paulding raised
two due process claims: (1) the SJC could not apply the new rule
announced in Paulding retroactively to him, and (2) even under the
new rule, there was sufficient evidence to warrant a second degree
murder instruction. On the first issue, the district court held
that the new rule could be applied retroactively because it did not
deprive Paulding of fair warning of the penalties attached to his
conduct. See Paulding, 303 F. Supp. 2d at 32. On the second
issue, the district court found reasonable the SJC's determination
that there was not enough evidence to warrant a second degree
murder instruction. See id. at 33-34. At oral argument, Paulding
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abandoned his retroactivity argument, so we confine our focus to
his second claim.1
The facts underlying Paulding's murder conviction are as
follows. On the evening of August 23, 1996, Paulding and Jose
Duarte visited the Dennis Street Park in the Roxbury section of
Boston. Paulding and Duarte approached three men, Eliot Flores,
Victor Fantauzzi, and the victim, Luis Tevenal, who were sitting on
a bench smoking marijuana. Duarte pointed a gun at the men and
said, "Run you all shit." The men interpreted Duarte's command to
be an order that they turn over all of their belongings. Flores
and Fantauzzi handed Paulding a knife, chain, and radio, while
Tevenal tossed his wallet in Paulding's direction. Duarte then
repeatedly asked Paulding, "Le Tiru?," which Fantauzzi and Flores
understood to mean "Should I shoot?" Flores, Fantauzzi, and
Tevenal ran, and a shot was fired which hit Tevenal in the back of
the head. Tevenal died the following day. Paulding admitted to
the police that he had participated in the armed robbery with
Duarte.
At trial, Paulding was the only defense witness. He
testified that he went with Duarte to the park to commit a robbery.
At the end of the robbery, according to Paulding, Duarte said
"Bounce," which Paulding understood as a command for him to run.
1
The government argued that Paulding failed to exhaust state
remedies for the retroactivity claim. Because Paulding has
waived this claim, we do not address the government's argument.
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Paulding ran from Duarte along with the other three men and heard
a shot fired.
The Commonwealth presented its case against Paulding on
a theory of joint venture first degree felony murder. As discussed
above, Paulding wanted the jury instructed on the elements of
second degree murder, but the trial judge refused and the SJC
upheld her ruling. Paulding's habeas corpus claim assigns
constitutional error to the failure of the trial judge to give a
second degree murder instruction, alleging that the failure to do
so amounted to a federal due process violation.
As an initial matter, the parties dispute whether the
deferential standard of review under the Antiterrorism and
Effective Death Penalty Act ("AEDPA") applies to this petition.
See 28 U.S.C. § 2254(d). Paulding contends that, because the SJC
did not address his federal due process claim, he is entitled to de
novo review. See Lavallee v. Coplan, 374 F.3d 41, 44 (1st Cir.
2004). We reject the premise of this argument. The SJC ruled that
the trial judge appropriately declined to instruct on the elements
of second degree murder because there was no evidence to support a
second degree murder conviction. It concluded its discussion by
stating "that there was a violation of neither [Mass. Gen. Laws
ch.] 265, § 1, nor the defendant's Federal due process rights."
Paulding, 777 N.E.2d at 143. It is apparent that the SJC
understood that Paulding's claim was premised, in part, on federal
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law. AEDPA's standard of review thus applies to Paulding's claim.
See Norton v. Spencer, 351 F.3d 1, 5-6 (1st Cir. 2003).
Under AEDPA, a federal court is precluded from granting
habeas corpus relief unless the state court adjudication "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 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(d)(1)-
(2). The United States Supreme Court has held that a capital
defendant maintains a due process right to receive a lesser
included offense instruction if the evidence so warrants, but it
has explicitly reserved whether this right extends to noncapital
defendants such as Paulding. See Hopper v. Evans, 456 U.S. 605,
611 (1982); Beck v. Alabama, 447 U.S. 625, 638 n.14 (1979).
Because the Supreme Court has not decided whether a noncapital
defendant has a due process right to receive such an instruction,
some courts, applying AEDPA, have held that a habeas petition
predicated on such a claim must be dismissed as not clearly
established under federal law. See Mendez v. Roe, 88 Fed. Appx.
165, 167 (9th Cir. 2004); Dickerson v. Dormire, 2 Fed. Appx. 695,
696 (8th Cir. 2001). But other courts, even after AEDPA's passage,
have permitted a noncapital defendant to press such a claim --
albeit without explicit consideration of whether their analysis is
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consistent with AEDPA.2 See Reeves v. Battle, 272 F.3d 918, 920
(7th Cir. 2001); Williams v. Hofbauer, 3 Fed. Appx. 456, 458 (6th
Cir. 2001).
We need not choose between these positions. Assuming
arguendo that a due process claim of the sort advanced by Paulding
remains viable under federal habeas corpus, the most that a
noncapital defendant could assert under the Supreme Court's
precedent is that a lesser included offense instruction is required
if warranted by the evidence. See Spaziano v. Florida, 468 U.S.
447, 455 (1984) ("Where no lesser included offense exists, a lesser
included offense instruction detracts from, rather than enhances,
the rationality of the process."); Hopper, 456 U.S. at 611 (stating
that "due process requires that a lesser included offense
instruction be given only when the evidence warrants such an
instruction"). And here, as the district court concluded, the SJC
reasonably determined that the evidence did not warrant such an
instruction.
In Massachusetts, "the felony-murder rule . . . imposes
criminal liability for homicide on all participants in a certain
common criminal enterprise if death occurred in the course of that
enterprise." Commonwealth v. Judge, 650 N.E.2d 1242, 1246 (Mass.
2
We followed the latter approach prior to the passage of
AEDPA. See Tata v. Carver, 917 F.2d 670, 671-72 (1st Cir. 1990).
We have not had occasion to consider the issue since AEDPA's
enactment.
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1995) (internal citation omitted). For a felony to qualify as a
predicate for application of the felony-murder rule, the felony
must be either inherently dangerous to human life or committed with
a conscious disregard of the risk to human life. See Commonwealth
v. Prater, 725 N.E.2d 233, 242 (Mass. 2000). If the felony is
punishable by life imprisonment, it is a predicate for felony
murder in the first degree; otherwise, it is a predicate for felony
murder in the second degree. See Commonwealth v. Jackson, 731
N.E.2d 1066, 1072-73 (Mass. 2000).
Paulding admitted that he participated in an armed
robbery, and there was no evidence that he participated in some
other predicate felony. Armed robbery is an inherently dangerous
felony punishable by life imprisonment. See Mass. Gen. Laws ch.
265, § 17; Commonwealth v. Simmons, 627 N.E.2d 917, 924 (Mass.
1994) (observing that armed robbery is an inherently dangerous
felony). Accordingly, Paulding was not entitled to a second degree
felony murder instruction. See Commonwealth v. Netto, 783 N.E.2d
439, 454 n.20 (Mass. 2003).
Paulding attempts to rebut this straightforward
conclusion with the argument that, because he also could have been
convicted of first degree murder on a finding of actual malice, a
second degree murder instruction was warranted under the theory
that he was guilty of a murder committed with malice instead of
felony murder. In making this argument, Paulding points to the
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SJC's acknowledgment that, where the evidence in a first degree
felony murder prosecution suggests malice, apart from the
constructive malice established by the commission of the predicate
felony, a charge on second degree murder should be given. See
Paulding, 777 N.E.2d at 142.
Paulding's argument does not fit the evidence. The
Commonwealth proceeded on the theory that Paulding committed joint
venture, first degree felony murder by participating in an armed
robbery with Duarte during which Duarte committed a homicide. The
Commonwealth did not contend that malice might be inferred from the
circumstances of the murder simpliciter (and independently of the
armed robbery). Paulding's defense was that Duarte committed the
murder after the robbery had concluded, and not that the murder was
committed outside the context of the armed robbery. The
Commonwealth's case, if believed, supported a first degree felony
murder conviction; Paulding's defense, if believed, supported an
acquittal. No middle ground was possible. Accordingly, the SJC's
determination that the evidence did not warrant instructing the
jury on second degree murder was reasonable.
Affirmed.
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