Powell v. Tompkins

United States Court of Appeals
For the First Circuit

No. 13-1310

AARON POWELL,

Petitioner, Appellant,

v.

STEVEN TOMPKINS,

SHERIFF, SUFFOLK COUNTY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Howard and Thompson,

Circuit Judges.

K. Hayne Barnwell, by appointment of the court, for appellant.
Susanne G. Reardon, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief for appellee.

April 15, 2015
 HOWARD, Circuit Judge. Petitioner Aaron Powell was

convicted on several state charges including unlawful possession of

a loaded firearm, see Mass. Gen. Laws ch. 269, §§ 10(a), (h), (n),

and his convictions were affirmed by the Massachusetts Supreme

Judicial Court (SJC), see Commonwealth v. Powell, 946 N.E.2d 114

(Mass. 2011). Powell then sought federal habeas relief pursuant to

28 U.S.C. § 2254, which was denied by the district court. In this

appeal from that denial, he primarily protests 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. The absence of such

proffered evidence gives rise to a presumption during trial that

the defendant did not have a valid license; but, if produced, the

prosecution has the burden of proving beyond a reasonable doubt

that the defense does not exist. See Mass. Gen. Laws ch. 278, § 7;

Commonwealth v. Jones, 361 N.E.2d 1308 (1977). The SJC concluded

that this state procedure comports with federal due process, and we

hold that Powell has failed to establish that the state court

decision conflicts with clearly established Supreme Court

precedent. In addition, Powell advances Second Amendment claims,

and a related Equal Protection claim. We hold that these claims

also provide no basis for disturbing his state convictions.

Finally, we deem waived his Sixth Amendment ineffective assistance

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of counsel claim. Accordingly, we affirm the district court's

denial of his petition for § 2254 relief.

I. Background

We are required to presume that the SJC's factual

rendition is correct and, therefore, we draw our description of the

facts from that opinion. 28 U.S.C. § 2254(e); see Gunter v.

Maloney, 291 F.3d 74, 76 (1st Cir. 2002).

Late one night in August 2008, two Boston police officers

were on routine patrol in Roxbury when they noticed a brooding

crowd at an intersection. The two dozen or so youths appeared to

be aligned into three groups, with two groups on one side of the

street and the third on the other side of the street. People were

yelling and pointing back and forth at one another, but the crowd

grew quiet as the officers drove by in their unmarked cruiser. One

officer noticed a young man (later identified as Powell) who was

walking nearby but set apart from the groups. Powell looked away

when he saw the officers and moved his hands toward his waist in a

manner which the officers viewed as consistent with concealing or

retrieving contraband. Powell walked past the crowd and then began

to run.

A foot chase ensued, and while en route, one officer saw

Powell clutching something in his right hand. The officer next saw

the handle of a gun in Powell's hand and twice commanded Powell to

drop it. Powell continued to flee, and when attempting to climb a

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fence to evade the officers, he dropped a .22 caliber revolver to

the ground. Powell then ran along the fence and into a darkened

garage. He soon emerged with both hands clenched in fists,

charging at one of the officers. The officer moved out of the way,

Powell knocked into the second officer, and the foot chase

continued down the street. The police soon caught up with Powell

and arrested him. The loaded revolver was retrieved from where

Powell had attempted to scale the fence. Without first issuing

Miranda warnings, an officer asked him why he ran and whether he

had a license for the firearm. Powell replied that he did not have

a firearm.

The Commonwealth of Massachusetts charged Powell with

several state crimes. He waived his right to a jury trial and,

after a bench proceeding, was convicted of publicly carrying a

firearm without a license, Mass. Gen. Laws ch. 269, § 10(a); doing

so while the firearm was loaded, id. ch. 269, § 10(n); and

possessing ammunition without a permit, id. ch. 269, § 10(h). He

was sentenced to eighteen months of incarceration and three years

of probation for the firearms and ammunition offenses.1

1
Powell also was convicted for resisting arrest, which is not
a part of this habeas petition. Additionally, although it appears
from the record that Powell has now completed his sentence, he
filed his petition challenging the legality of his firearms
convictions before his sentence concluded. We find that his
petition is neither moot nor beyond the jurisdictional reach of 28
U.S.C. § 2254(a). See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998);
Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); see also
Lefkowitz v. Fair, 816 F.2d 17, 19 (1st Cir. 1987).

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 While Powell's appeal to the state intermediate appeals

court was pending, the United States Supreme Court decided McDonald

v. City of Chicago, in which it held that the Second Amendment

right to keep and bear arms applies to the states through the

Fourteenth Amendment. 561 U.S. 742, 130 S. Ct. 3020, 3042 (2010).

On its own motion, the case was transferred to the SJC, which

affirmed Powell's convictions. See Powell, 946 N.E.2d 118.

Pertinent here, the SJC rejected Powell's due process

challenge to the Commonwealth's failure to present evidence that he

lacked a firearms license. Id. at 124. Following its own

precedent, the court held that the accused has the burden of

producing evidence of a license as an affirmative defense in

prosecutions for firearms possession and carrying offenses. Id.

It also held that this state procedure is in accord with due

process because the burden of proving an element of the crime did

not shift to the defendant. Id. (relying on Jones, 361 N.E.2d

1308).

In addition, the SJC declined to assess the merits of

Powell's claim that state law age restrictions on young adults'

ability to obtain a license to publicly carry a firearm violate the

Second Amendment and the Equal Protection Clause of the Fourteenth

Amendment. Id. at 128. The state court viewed his age-based

challenges as procedurally barred, essentially because Powell did

not demonstrate that his lack of licensure was based on the minimum

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age requirement alone. Id. at 129-30. The SJC excused Powell's

failure to raise his Second Amendment arguments in a pretrial

motion because the issues were not available to him until after

McDonald was decided. Id. at 127.

Lastly, the SJC rejected Powell's ineffective assistance

of counsel claim, which was based on trial counsel's failure to

file a motion to suppress Powell's pre-Miranda statement to the

police denying that he had possessed a gun. The court concluded

that any allegedly deficient legal representation caused Powell no

prejudice due to other evidence of his consciousness of guilt. Id.

at 125.

Powell later pursued a § 2254 habeas petition in federal

district court, which was denied. Powell v. Tompkins, 926 F. Supp.

2d 367 (D. Mass. 2013). We consider the merits of the federal

habeas petition de novo. See Pena v. Dickhaut, 736 F.3d 600, 603

(1st Cir. 2013).

II. Discussion

Securing relief under the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA") is an onerous task. See Pub.L.

No. 104-132, § 104, 110 Stat. 1214, 1218-1219, codified at 28

U.S.C. § 2254; see also White v. Woodall, 134 S. Ct. 1697, 1702

(2014); Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013). Powell may

secure relief for claims addressed in his direct appeal if the

state court's decision "was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as

determined by" the Supreme Court, 28 U.S.C. § 2254(d)(1). Only

legal errors that are objectively unreasonable warrant relief. See

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (expounding on

"contrary to" prong); Titlow, 134 S. Ct. at 16 (expounding on

"unreasonable application" prong); see also Woodall, 134 S. Ct. at

1702, 1706 (emphasizing that "even 'clear error' will not suffice"

and rejecting an "unreasonable-refusal-to-extend rule" that was

discussed in earlier AEDPA cases).

The Supreme Court's precedent, not that of the circuit

courts, serves as the benchmark for securing § 2254 relief. Lopez

v. Smith, 135 S. Ct. 1, 3 (2014) (per curiam); see Esparza, 540

U.S. at 16 (noting that a state court need not even be aware of

Supreme Court precedents, "so long as neither the reasoning nor the

result of the state-court decision contradicts them"). Here,

Powell largely rests on In re Winship, 397 U.S. 358 (1970) in

support of his Due Process claim, and on District of Columbia v.

Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561

U.S. 742 (2010) for his Second Amendment and related Equal

Protection claims.

A. Due Process

It is bedrock that the Due Process Clause of the

Fourteenth Amendment "protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary

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to constitute the crime with which he is charged." Winship, 397

U.S. at 364. Powell argues that under this command, "a state may

not be relieved of proving beyond a reasonable doubt the elements

of lack of a firearms license and registration card by imposing a

so-called 'minimal' burden of production upon the defendant." Writ

large, however, his claim primarily rests on the premise that

absence of licensure is an element of the state criminal offense,

a position that runs contrary to SJC precedent as exposited in

Jones and its progeny. Undeterred, he relies on the text of the

operative state statutes, select state case law, and language in

his criminal complaint to support his contention that the proper

due process analysis must account for absence of license as an

operative element of the charged firearms crimes.

To determine the appropriate lens that governs Powell's

due process claim, we begin, as we must, with Massachusetts law.

See, e.g., Medina v. California, 505 U.S. 437, 445-46 (1992)

(addressing state law affirmative defenses); County Court of Ulster

County v. Allen, 442 U.S. 140, 156-60 (1979) (addressing state law

inferences and presumptions); see also Marshall v. Bristol Superior

Court, 753 F.3d 10, 19 (1st Cir. 2014) (noting that the federal

court is "bound by the state court's construction of its state

statutes and other issues of state law").

To lawfully possess and carry a firearm within the

Commonwealth a person must either obtain a license to do so or be

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exempt from the normal licensing requirements. See generally Mass.

Gen. Laws ch. 140, §§ 121-131P; Hightower v. City of Boston, 693

F.3d 61, 65 (1st Cir. 2012) (surveying Massachusetts law). The

categories of permits that were available at the time of Powell's

arrest generally consisted of a firearms identification card (FID

card), a Class B license, and a Class A license. See, e.g., Mass.

Gen. Laws ch. 140, §§ 129B, 129C, 131; see also Hightower, 693 F.3d

at 65; Chief of Police of City of Worcester v. Holden, 26 N.E.3d

715, 721-22 (Mass. 2015). An FID card permits a qualified person

to keep a firearm and ammunition in his home or place of business

but does not by itself allow an individual to carry them in public.

See Mass. Gen. Laws ch. 140, §§ 129B, 129C; Hightower, 693 F.3d at

66. A Class B license generally permits a person to publicly carry

smaller capacity firearms for lawful purposes. See Mass. Gen. Laws

ch. 140, § 131(b). The holder of a Class A license has greater

privileges and generally may publicly carry larger capacity

firearms for lawful purposes that are loaded and concealed. See

id. ch. 140, § 131(a); Hightower, 693 F.3d at 66. "[T]he chief of

police or the board or officer having control of the police in a

city or town, or persons authorized by them," serve as the state's

licensing authority, Mass. Gen. Laws ch. 140, § 121, and the degree

of discretion to grant a permit and to impose any restrictions on

permits varies. See, e.g., Mass. Gen. Laws §§ 129B, 129C, 131;

Hightower, 693 F.3d at 66 (applicant must be a "suitable person"

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for a license to publicly carry); Holden, 26 N.E.3d at 723-24, 727-

28 (explaining the purpose of the state's licensing prerequisites,

including the "suitable person" qualification).2

State law also prescribes criminal penalties for certain

unlawful conduct related to firearms. Pertinent here, section 10

of Chapter 269 ("Crimes Against Public Peace") of the state's

criminal code penalizes the unlawful possession or carrying of

particular weapons and ammunition. Mass. Gen. Laws ch. 269, § 10;

see generally 2014 Mass. Acts ch. 284, §§ 89-92 (new legislation

amending Mass. Gen. Laws ch. 269, § 10). Criminal sanctions may be

imposed on, among others:

(a) Whoever, except as provided or exempted by
statute, knowingly has in his possession . . .
a firearm, loaded or unloaded, as defined in
[ch. 140, § 121] without either:

(1) being present in or on his residence
or place of business; or

2
Comprehensive new state legislation amending a variety of
firearms regulations was enacted by the Commonwealth in August
2014. 2014 Mass. Acts ch. 284 ("An Act Relative to the Reduction
of Gun Violence"). Among other changes, the new law will eliminate
the category of Class B license in order to create a unitary
license to carry. See, e.g., id. at §§ 24, 46-48, 60, 68, 71, 101.
Our survey of Massachusetts law in this opinion generally adheres
to the laws in effect at the time of Powell's criminal conduct.
Moreover, our summary is no more than that. Chapter 140 of
Massachusetts General Laws requires licensing for many activities
in the Commonwealth, and the regulatory scheme for firearms within
that chapter is fairly extensive, incorporating various
requirements for lawful possession and carrying relating to the
applicant, the setting, and the usage. See Mass. Gen. Laws ch.
140, §§ 121-131P; see also 2014 Mass. Acts ch. 284, § 70 (new
legislation enacted an additional provision, Mass. Gen. Laws ch.
140, § 131Q).

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 (2) having in effect a license to carry
firearms issued under [ch. 140, § 131
governing licensure];

. . .

(h)(1) Whoever owns, possesses or transfers a
firearm, rifle, shotgun or ammunition without
complying with [ch. 140 § 129C governing FID
cards] . . . .

Mass. Gen. Laws ch. 269, § 10. A minimum of eighteen months

imprisonment is required for a section 10(a) violation, id. ch.

269, § 10(a), and enhanced punishment may be imposed for persons

who violate this subsection "by means of a loaded firearm," id. §

10(n). Imprisonment is not mandatory for all section 10(h)

violations. See id. § 10(h)(1).3

At the heart of Powell's due process claim is a statutory

presumption that arises in criminal prosecution for a firearms

offense.

A defendant in a criminal prosecution, relying
for his justification upon a license,
appointment, admission to practice as an
attorney at law, or authority, shall prove the
same; and, until so proved, the presumption
shall be that he is not so authorized.

Mass. Gen. Laws ch. 278, § 7 (emphasis added). Accordingly, unless

an individual standing accused of unlawfully possessing a firearm

3
We note that the mere failure to produce a firearms license
upon demand may subject the person to surrendering the firearm, but
such failure is not, standing alone, criminal. See Mass. Gen. Laws
ch. 140, § 129C; see Jones, 361 N.E.2d at 1312.

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produces evidence at trial demonstrating licensure, state law

presumes that he is not so licensed. See Commonwealth v. Davis,

270 N.E.2d 925, 926 (Mass. 1971) (noting that the section 7

criminal procedure provision "allows the defendant to show that his

conduct is within an exception to the proscription" on carrying

firearms). Section 7 is a rule of state criminal procedure that

applies in an array of criminal prosecutions beyond the firearms

context.

Within this statutory framework, the SJC has long held

that a section 10 firearms offense is a public welfare offense that

imposes a general prohibition against carrying a firearm for which

both exceptions and exemptions may apply in any given case.

Commonwealth v. Jackson, 344 N.E.2d 166, 174 (1976); Jones, 361

N.E.2d at 1310-13; see Davis, 270 N.E.2d at 926 (explaining that

section 10(a) is a regulatory measure "proscrib[ing] certain

inherently dangerous acts"). In order to secure a conviction for

a section 10 firearms offense, the Commonwealth must prove beyond

a reasonable doubt that (1) the accused knowingly possessed a

firearm, and (2) the firearm met the legal definition provided

under Chapter 140, § 121. Jones, 361 N.E.2d at 1311-13; Jackson,

344 N.E.2d at 174. Pursuant to the section 7 criminal procedure

provision, evidence of license may operate as an affirmative

defense at a criminal trial for which the accused bears the burden

of production only: "Absence of a license is not an element of the

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crime as that phrase is commonly used. . . . [Rather,] 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

1311.4

In considering Powell's direct appeal, the SJC saw no

reason to stray from its established state precedent, which

includes the holding in Jones that the state law placing the burden

of production on a defendant satisfies the baseline due process

demands under Winship. See id. at 1313. It is this allegiance

that fuels the bulk of Powell's due process claim.

Powell first argues that the very text of the statute of

conviction contemplates that absence of license is an element of

4
The state court has affirmed repeatedly the Jones court's
exposition on both the elements of a state firearms offense and
licensure operating as an affirmative defense. See Commonwealth v.
Humphries, 991 N.E.2d 652, 658-59 (2013); Commonwealth v. Eberhart,
965 N.E.2d 791, 795 (Mass. 2012); Commonwealth v. Jefferson, 965
N.E.2d 800, 809-11 (Mass. 2012); Commonwealth v. Gouse, 965 N.E.2d
774, 788 n.17 (Mass. 2012); Commonwealth v. Young, 905 N.E.2d 90,
95 n.9, 96 (Mass. 2009); Commonwealth v. Colon, 866 N.E.2d 412, 429
(Mass. 2007); Commonwealth v. Anderson, 834 N.E.2d 1159, 1173-74
(Mass. 2005); Commonwealth v. Than, 817 N.E.2d 705, 708 (Mass.
2004); Ramirez, 555 N.E.2d at 211; Commonwealth v. Tuitt, 473
N.E.2d 1103, 1109-10 (Mass. 1985). This procedural framework with
respect to license as an affirmative defense is not unusual even
among federal statutes. See, e.g., United States v. Matthews, 749
F.3d 99, 104-05 (2014) (holding that "a defendant seeking the
benefit of an exception" under the pertinent statute "must shoulder
the burden of coming forward with evidence regarding that
exception," including a valid marijuana prescription).

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the offense. He criticizes the SJC for following the "muddled

rationale" of Jones, which he characterizes as recasting this

essential element as an affirmative defense of licensure. Powell,

therefore, urges us to abide by the plain language of the state

statute and recognize absence of license as an operative element of

the firearms charges that were levied against him. This, we cannot

do.

It is, of course, the duty of the state high court to

construe the meaning of state statutes, including criminal offenses

and rules of procedure, and the SJC has been dogmatic in following

the Jones exposition for more than three decades. See Commonwealth

v. Smith, 829 N.E.2d 1090, 1092-93 (Mass. 2005); Commonwealth v.

Anderson, 651 N.E.2d 1237, 1240 (Mass. App. Ct. 1995) (same); see

also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). The SJC's

exposition represents the very meaning of the statute intended by

the state legislature, and we are duty bound, in no uncertain

terms, to follow that state precedent. See Mullaney, 421 U.S. at

691 & n.11; Marshall, 753 F.3d at 19.

Still, Powell points to select state case law in order to

stir up some ambiguity on the criminal elements of a section 10

firearms offense. He cites two cases in which the SJC has

expressed that mere possession of a firearm is not unlawful,

precedent that he sees as conflicting with the Jones line. See

Commonwealth v. White, 891 N.E.2d 675 (Mass. 2008); Commonwealth v.

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Alvarado, 667 N.E.2d 856 (Mass. 1996). But, as is often the case,

context clarifies.

The SJC in White, admittedly, painted with a broad brush

when recounting the components of proof for a firearms crime. See

White, 891 N.E.2d at 678 (noting that "the Commonwealth must prove

that the defendant knowingly possessed a firearm without . . .

having in effect a license to carry firearms or [an FID card]").

However, its opinion otherwise shows no intent to undo clear and

longstanding precedent governing the legal elements for a section

10 firearms offense and the effect of the section 7 criminal

procedure provision a criminal trial. See id.

The same is true for the Fourth Amendment discussion in

Alvarado. There, the SJC emphasized that mere possession of a

firearm may not serve as the sole factual predicate for law

enforcement's reasonable suspicion of unlawful conduct necessary to

constitutionally seize and search a person or property. Alvarado,

667 N.E.2d at 859-60. This makes eminent sense given that an

officer on the streets generally has no way of knowing whether a

person's "mere possession" of a firearm comports with the state's

regulatory requirements. See, e.g., Commonwealth v. Couture, 552

N.E.2d 538, 540 (Mass. 1990) (defendant was merely "seen in public

with a handgun" and police "had no reason to believe . . . that the

defendant had no license to carry a firearm"); Commonwealth v.

Toole, 448 N.E.2d 1264, 1268 (Mass. 1983) (police "apparently never

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asked the defendant whether he had a license to carry a firearm"

but instead unlawfully searched the vehicle for one without any

basis for a reasonable suspicion of unlawful possession). And, the

SJC has made it clear that its Fourth Amendment decisions do not

confuse or otherwise alter its Jones due process precedent. See

Commonwealth v. Gouse, 965 N.E.2d 774, 803 n.17 (Mass. 2012);

Couture, 552 N.E.2d at 540-41. Ultimately, in Massachusetts the

presumed baseline of lawful possession afforded to an individual

for Fourth Amendment purposes falls away in a criminal prosecution

where a person stands at trial accused of unlawful firearms

possession and makes no attempt to produce evidence of proper

licensure.

Powell, therefore, does not establish any irreconcilable

conflict embedded within state case law, much less one that might

allow us to disregard Jones and its progeny. See Mullaney, 421

U.S. at 691 & n.11 (referencing "obvious subterfuge" as an example

of "extreme circumstances" that may warrant setting aside state

court exposition of state law); see also McMillan v. Pennsylvania,

477 U.S. 79, 89 n.5 (1986) (in discrediting a subterfuge-type

argument, the Supreme Court "reject[ed] the view that anything in

the Due Process Clause bars States from making changes in their

criminal law that have the effect of making it easier for the

prosecution to obtain convictions").

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 Powell next faults the SJC for neglecting to "analyze the

effect of the indictment or complaint listing the ingredients or

elements of the crime," as he purports is required by Apprendi and

Blakely. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely

v. Washington, 542 U.S. 296 (2004). He sees the Apprendi and

Blakely holdings as somehow requiring that language in a charging

instrument modify the legal elements for a criminal offense

prescribed under law and points to language in his criminal

complaint that expressly references the absence of a license and an

FID card. Neither decision, however, bears this weight. See

Apprendi, 530 U.S. at 468-69, 477, 484-88, 490-96 (evaluating the

constitutionality of a criminal procedure set forth under the state

statutes, not the indictment); Blakely, 542 U.S. at 301, 303-04

(applying Apprendi rule to hold that a jury finding required for a

fact that enhances a sentence beyond the statutory maximum of the

standard range). Moreover, the Apprendi Court stressed that the

Winship due process issue that it faced did not "raise any question

concerning the State's power to manipulate the prosecutor's burden

of proof by, for example, relying on a presumption rather than

evidence to establish an element of an offense, or by placing the

affirmative defense label on at least some elements of traditional

crimes." 530 U.S. at 475 (internal citations and quotation marks

omitted). Therefore, we see no error, let alone objectively

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unreasonable error, in the district court's decision to omit

Apprendi and Blakely from its due process analysis.

Bound as we are by state precedent on the meaning and

functionality of state criminal law and procedure, the decisive §

2254 inquiry for us is this: whether the SJC's decision that the

state law prescription of licensure as an affirmative defense

(imposing only a burden of production, not persuasion, on a

defendant) accords with procedural due process under the Federal

Constitution is contrary to, or comprises an unreasonable

application of, clearly established Supreme Court precedent. To

this legitimate question, Powell weakly criticizes the SJC's

allegiance to the due process analysis in Jones. He contends that

the SJC in his direct appeal failed to account for that court's

error in Jones in tying its due process analysis to the so-called

"comparative convenience" test under Morrison v. California, 291

U.S. 82 (1933). We are not persuaded of any objectively

unreasonable legal error.

It is true that the Jones court took its cue from

Morrison, which discusses the "limits of reason and fairness" under

due process for placing the burden of production on an accused in

a criminal case. See Jones, 361 N.E.2d at 1311-12. The state

court relied on the following guideposts as set forth in Morrison:

The limits are in substance these, that the
state shall have proved enough to make it just
for the defendant to be required to repel what
has been proved with excuse or explanation, or

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 at least that upon a balancing of convenience
or of the opportunities for knowledge the
shifting of the burden will be found to be an
aid to the accuser without subjecting the
accused to hardship or oppression.

. . .

For a transfer of the burden, experience must
teach that the evidence held to be inculpatory
has at least a sinister effect or if this at
times be lacking, there must be in any event a
manifest disparity in convenience of proof and
opportunity for knowledge as, for instance,
where a general prohibition is applicable to
every one who is unable to bring himself
within the range of an exception.

Morrison, 291 U.S. at 88-89, 91 (internal quotation marks and

brackets omitted) (emphasis added); see Jones, 361 N.E.2d at 1312

(quoting Morrison). After reaffirming that the section 10 firearms

offense is in the line of general prohibition crimes, the SJC then

analyzed the due process question under the comparative convenience

test. Jones, 361 N.E.2d at 1312-13.

In particular, the Jones court considered the relative

procedural burdens imposed by the section 7 criminal procedure

provision, including that (i) various licensing authorities

statewide issued and renewed licenses, (ii) an accused could

produce evidence of license without testifying and with relative

ease as compared to the prosecutor, and (iii) the state's statutory

scheme merely required evidence of license in court rather than

when first confronted by law enforcement in order to avoid criminal

conviction based on "the minor mistake of leaving the license at

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home." Id. It also considered the scant risk of erroneous

conviction, remarking that: "We find it nearly impossible to

believe that [the accused] had such a license but withheld it,

subjecting himself to the risk of a mandatory term of imprisonment"

-- "'[s]uch an absurd game does not contribute to a search for

truth . . . .'" Id. (quoting Williams v. Florida, 399 U.S. 78, 82

(1970)). In the end, the Jones court found "no unfairness in [its]

traditional rule." Id.

Given that the section 10 firearms offense remains a

general prohibition crime in the Commonwealth, it comes as no

surprise to us that the SJC in Powell's direct appeal decided to

abide by the due process analysis in Jones. Cf. Morrison, 291 U.S.

at 91-93 (holding that the state crime under review was not one of

"general prohibition" before considering whether the evidence had

any "sinister significance" in relation to the presumed culpability

component). Moreover, between the time of Jones and Powell's

direct appeal, the Supreme Court's precedent has developed

significantly in the field of state law affirmative defenses that

fully satisfy the Winship baseline demand. See, e.g., Gilmore v.

Taylor, 508 U.S. 333, 341 (1993); Medina, 505 U.S. at 445-46;

Martin v. Ohio, 480 U.S. 228, 233-35 (1987); Patterson v. New York,

432 U.S. 197, 210 (1977). This precedent on affirmative defenses

provides ready support for concluding that the SJC's due process

ruling in Powell's direct appeal is not objectively unreasonable.

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See Patterson, 432 U.S. at 210 (holding that due process does not

create "a constitutional imperative, operative countrywide, that a

State must disprove beyond a reasonable doubt every fact

constituting any and all affirmative defenses related to the

culpability of an accused."); see also Martin, 480 U.S. at 233-35

(upholding state statute that placed on the accused the burdens of

production and of persuasion beyond a reasonable doubt for self-

defense as an affirmative defense). Powell neither addresses this

clear Supreme Court precedent governing affirmative defenses, nor

cites 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.5

Powell next faults the SJC for failing to account for the

advent of the computer age under the comparative convenience test

5
Powell contends that the SJC in his direct appeal ought to
have followed the "rational connection" test under Tot v. United
States, 319 U.S. 463 (1943) and United States v. Romano, 382 U.S.
136 (1965). However, this Supreme Court precedent is ill-fitted to
the due process question for the Massachusetts firearms crime,
because both cases involved state statutory schemes that relieved
the prosecutor from proving an element of the crime; neither
involved statutory affirmative defenses. See Tot, 319 U.S. at 464
(statute set forth that mere possession of the firearm served as
presumptive proof that it was "shipped or transported in interstate
or foreign commerce," an element of the offense); Romano, 382 U.S.
at 137 n.2, 137-38 (statute set forth that mere unexplained
presence at the site of an illegal alcohol still served as
sufficient proof that the still or distilling apparatus was "in his
possession or custody, or under his control," an element of the
offense).

-21-
applied in Jones. Because nearly forty years has passed since the

Jones decision, Powell contends that prosecutors now would no

longer bear a significant burden in having to present evidence that

a particular firearm is unlicensed. His understanding of the

modern day burden for a prosecutor to discover licensing evidence

does not square with the SJC's, however. See Gouse, 965 N.E.2d at

805-06 ("review[ing] the department's records and the police

departments in any towns or cities in which the defendant may have

lived" would comprise "a daunting task [where] the defendant may

have assumed an alias or resided at different, or suspect

locations"). Powell also ignores this state authority and

otherwise fails to offer any sound basis that might compel us to

disregard the SJC's own assessment on the current practical

workings of the state licensing system, let alone give reason to

find that the SJC's decision in the direct appeal was objectively

unreasonable.

In the end, the due process question here evokes the type

of constitutional standard established by the Supreme Court that

permits a fair amount of latitude in the exercise of sound

decisional judgment. See Medina, 505 U.S. at 445-46; McMillan, 477

U.S. at 91; Sanna v. Dipaolo, 265 F.3d 1, 13 (1st Cir. 2001). Even

to the extent that "it is a close question whether the state

decision is in error," such is not the threshold required for

establishing an objectively unreasonable application of federal law

-22-
under AEDPA. Morgan, 677 F.3d at 47 (internal quotation marks

omitted). Accordingly, we hold that Powell's due process claim

provides no basis for granting § 2254 habeas relief.

B. Second Amendment

Powell next seeks § 2254 habeas relief on the basis that

his state firearms convictions violate his right to keep and bear

arms under the Second Amendment. He presents two claims; the first

challenges the minimum age requirements for state firearms

licensure (with a related equal protection claim), and the second

revisits the section 7 criminal procedure provision through a

different constitutional prism. For both, Powell stands on the

nascent Supreme Court precedent establishing that the Second

Amendment secures a limited individual right to keep and bear arms

for self-defense of hearth and home unconnected to organized

militia. Heller, 554 U.S. 570; see McDonald, 561 U.S. 742 (holding

that the Second Amendment fully applies to state and local

regulation through the Fourteenth Amendment). We address each in

turn.

1. Minimum Age Qualifications

A qualified applicant who is at least fifteen years of

age may obtain an FID card for possession of a firearm in the home

or business premises but must be at least twenty-one years of age

in order to obtain a license to publicly carry a firearm. See

Mass. Gen. Laws ch. 140, §§ 129B(1)(v), 131(d). Powell contends

-23-
that this age-based distinction unlawfully effects "[an] absolute

prohibition of an entire class of law-abiding adults from bearing

arms," namely, those who are eighteen-to-twenty years old, and,

thus, runs contrary to his Second Amendment and Equal Protection

rights. We, however, agree with the Commonwealth that these

federal constitutional claims are barred by the procedural default

rule.

A federal court generally will not review a § 2254 habeas

claim when the state court's decision for that claim rests on a

state law ground that is independent of the federal question and

adequate to support the judgment. Martinez v. Ryan, 132 S. Ct.

1309, 1315-16 (2012); see Hodge v. Mendonsa, 739 F.3d 34, 44 (1st

Cir. 2013). Grounded in comity and federalism, the procedural

default rule bars § 2254 habeas relief "when a state court declined

to address a prisoner's federal claims because the prisoner had

failed to meet a state procedural requirement." Coleman v.

Thompson, 501 U.S. 722, 729-30 (1991), limited in part by Martinez,

132 S. Ct. at 1319; Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st

Cir.), cert. denied, 134 S. Ct. 434 (2013).

In Massachusetts, "[o]nly one whose rights are impaired

by a statute can raise the question of its constitutionality, and

he can object to the statute only as applied to him." Commonwealth

v. Gordon, 242 N.E.2d 399, 401 (Mass. 1968); see Commonwealth v.

Brunelle, 277 N.E.2d 826, 830 (Mass. 1972). A criminal defendant

-24-
who is charged with violating a licensing statute may challenge the

underlying state legislation "even in the absence of an application

for a license," but the scope of that state judicial review has its

limits. Gordon, 242 N.E.2d at 401. In such cases, the SJC

restricts its attention to the particular statutory provisions that

are actually implicated by the charged unlicensed activity and

declines to address provisions that do not represent injury

incurred by virtue of the particular conviction secured against

that defendant. See id. 401-02.

Here, the SJC in Powell's direct appeal followed this

state norm when declining to review the merits of Powell's age-

based claims. Powell's criminal convictions rested on his conduct

of publicly carrying a loaded firearm without authorization, and

his lack of licensure was presumed due to his failure to produce

proof on that affirmative defense. When considering Powell's

argument that his firearms convictions must be reversed because the

minimum age qualification was unconstitutional, the SJC immediately

noted that Powell had not applied for a firearms permit and had

failed to demonstrate that he would have been denied licensure

based solely on his age. See Powell, 946 N.E.2d at 129-30 (citing

Jackson, 344 N.E.2d at 169-70 n.3). The state court ruled,

therefore, that Powell's narrow constitutional challenge to his

convictions was foreclosed. See id.

-25-
 In so holding, the SJC recognized that even if the age-

based claims had merit, Powell's firearms convictions would remain

intact given the various eligibility requirements left unchallenged

that might very well operate to legitimately deny him a license,

such as being a "suitable" person. See Mass. Gen. Laws ch. 140, §

131(d). In other words, the court essentially held that the

purportedly unconstitutional minimum age requirement, standing

alone, did not necessarily injure Powell by rendering the

convictions themselves unconstitutional. We conclude that the

SJC's decision declining to address the merits of the federal

constitutional questions rested on an adequate and independent

state law ground that bars our review of Powell's constitutional

claims.

Powell seeks to excuse his state court default by relying

on the futility doctrine. See Hodge, 739 F.3d at 43 (federal court

may excuse state court default where a petitioner shows cause and

actual prejudice). His argument is misplaced, however. Although

federal courts may apply the futility doctrine in narrow

circumstances for the federal exhaustion requirement, see Allen v.

Attorney General of State of Me., 80 F.3d 569, 573 (1st Cir. 1996),

Powell provides no authority to establish that the doctrine has any

bearing on the excuse inquiry. Indeed, not one of the cases that

he cites involves a § 2254 habeas petition, and our own research

casts significant doubt on his presumed legal position. See

-26-
Berkley v. Quarterman, 310 F. App'x 665, 672-73 (5th Cir.), cert.

denied, 558 U.S. 843 (2009) (declining to recognize a futility

exception for the state procedural default rule).

Powell's cursory argument on prejudice also fails. By

leaving untouched the various eligibility requirements for securing

a license to publicly carry a loaded weapon, a successful

constitutional challenge to the state's minimum age qualification

alone does not necessarily demonstrate illegal state confinement.

See 28 U.S.C. § 2254(a); Allen, 442 U.S. at 154-55 (for a § 2254

petition, "[a] party has standing to challenge the

constitutionality of a statute only insofar as it has an adverse

impact on his own rights").6

Accordingly, we are foreclosed from reaching the merits

of Powell's constitutional attacks on the minimum age qualification

for obtaining a license to publicly carry a firearm in

Massachusetts.

2. Criminal Procedure Provision

Powell next revisits the section 7 criminal procedure

provision, arguing that the lack of license presumption infringes

on his Second Amendment rights as secured under Heller and

McDonald. According to Powell, these decisions "restored the

6
Powell's other sundry arguments for halting the procedural
default bar wholly lack merit and do not warrant extended
attention.

-27-
presumption of innocence, invalidating statutes like [section 7]"

that impose criminal punishment on persons "simply for exercising

their Second Amendment rights." The Commonwealth agrees that we

ought to afford his claim de novo review, because the SJC's

decision is silent on this constitutional claim. See Clements v.

Clarke, 592 F.3d 45, 52, 54 (1st Cir. 2010). Even without the

constraints of AEDPA, however, Powell's claim quickly crumbles.

Powell attempts to launch a Second Amendment attack on

the method or legislative design by which the Commonwealth has

chosen to criminally enforce its firearms licensing scheme. He

avers that the viability of his claim does not necessarily "depend

upon whether the Second Amendment right extends outside the home,"

because he reads the Heller/McDonald decisions as affirmatively

precluding states from "impos[ing] a general prohibition against

carrying a firearm" and from "proscrib[ing] carrying a firearm,

alone, as an inherently dangerous act [that is] subject to criminal

prosecution."7 But, in the midst of his iterations on the holdings

of Heller and McDonald, Powell underscores that he is not

"challeng[ing] the licensing scheme as a whole" nor arguing that

"generally requiring firearm owners to obtain licenses and

7
As earlier noted, the state firearms offense is a public
welfare or general prohibition offense designed "to control the
carrying of firearms so as to protect the public from the potential
danger incident to [their] unlawful possession." Commonwealth v.
Jefferson, 965 N.E.2d 800, 808 (Mass. 2012) (internal quotation
marks and ellipses omitted); see Commonwealth v. Young, 905 N.E.2d
90, 96 (Mass. 2009); Davis, 270 N.E.2d at 926.

-28-
registration cards violates the Second Amendment." Thus, on close

inspection, Powell's claim is nothing more than a hollow

recapitulation of his procedural due process claim in Second

Amendment garb, and its fate is the same.

Nowhere in its dual decisions did the Supreme Court

impugn legislative designs that comprise so-called general

prohibition or public welfare regulations aimed at addressing

perceived inherent dangers and risks surrounding the public

possession of loaded, operable firearms. Rather, the Court

attended to legislative substance and endorsed the continuing

viability of a range of state firearms regulations without

endeavoring to draw Second Amendment lines for state legislative

architecture. See Heller, 554 U.S. at 626-27; McDonald, 130 S. Ct.

at 3047. In fact, along its sojourn, the Court recognized that

states have historically executed firearms regulation through

general prohibition public safety laws. See Heller, 554 U.S. at

631-32.

Powell's reliance on Herrington v. United States, 6 A.3d

1237 (D.C. 2010), also does not help him. There, the D.C. Court of

Appeals reversed a defendant's conviction for unlawful possession

of ammunition that rested on a general prohibition criminal statute

in which the accused had the burden of proving registration as an

exception or affirmative defense. 6 A.3d at 1240-47. Significant

to the court, the defendant was convicted for unlawfully possessing

-29-
handgun ammunition in his home, and the court restricted the reach

of its holding to the statute of conviction as applied to the

defendant. Id. at 1242-45. It held that "the Second Amendment

guarantees a right to possess ammunition in the home that is

coextensive with the right to possess a usable handgun there," id.

at 1243, and "express[ed] no opinion as to whether the [D.C.]

statute is constitutional in other applications [such as when]

applied to possession of handgun ammunition outside the home," id.

at 1244, n.25. Herrington, therefore, has no bearing on Powell's

convictions which rest on publicly carrying a loaded firearm

without a license.8

More fundamentally, given the public sphere context for

his firearm possession, Powell provides us with no basis for

concluding that his convictions could even reach the safe haven of

the Second Amendment. He boldly -- and wrongly -- pronounces that

the Supreme Court in Heller "clearly established that the right to

keep and bear arms encompasses one's 'person' unrelated to the

home." (Emphasis in original.) We flatly reject his read.

8
The D.C. court also included in its analysis numerous
caveats beyond the home-versus-public distinction. It took note,
for example, that in the District of Columbia, the relative burden
of producing licensing paperwork remained in equipoise between the
government and the defense. Herrington, 6 A.3d at 1245 n.30; see
Brown v. United States, 66 A.2d 491, 494 (D.C. 1949) (unlike most
states, only one licensing authority exists in the relatively small
geographical area of the District of Columbia and that entity
annually issues only a small number of licenses). This is markedly
different from the burden faced by law enforcement in
Massachusetts. See Gouse, 965 N.E.2d at 805-06.

-30-
Together, Heller and McDonald establish that states may not impose

legislation that works a complete ban on the possession of operable

handguns in the home by law-abiding, responsible citizens for use

in immediate self-defense. See Heller, 554 U.S. at 628-32, 635-36;

McDonald, 130 S. Ct. at 3036-46, 3050; see Hightower, 693 F.3d at

72; Booker, 644 F.3d at 22, 25 n.17. The neoteric decisions

addressed only the setting of "us[ing] arms in defense of hearth

and home," left open for future cases the sort of judicial review

to be applied to other firearms regulation, and firmly disavowed

any notion that an individual has a constitutional right "to keep

and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose." See Heller, 554 U.S. at 626-35; McDonald, 130

S. Ct. at 3047, 3050; see also Booker, 644 F.3d at 22.9

9
Several circuits have adopted a two-part framework for
evaluating a claim of Second Amendment infringement in the post-
Heller era. Broadly speaking, some courts first consider whether
the challenged law imposes a burden on conduct that falls within
the scope of the Second Amendment's guarantee as historically
understood, and if so, courts next determine the appropriate form
of judicial scrutiny to apply (typically, some form of either
intermediate scrutiny or strict scrutiny). See, e.g., Jackson v.
City and County of San Francisco, 746 F.3d 953, 962-63 (9th Cir.
2014), petition for cert. filed, (U.S. Dec. 12, 2014) (No. 14-704);
Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013), cert. denied, 134
S. Ct. 2134 (2014); Woollard v. Gallagher, 712 F.3d 865, 874-75
(4th Cir.), cert. denied, 134 S. Ct. 422 (2013); Nat'l Rifle Assn'n
of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 194 (5th Cir. 2012), cert. denied, 134 S. Ct. 1364
(2014); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.),
cert. denied, 133 S. Ct. 375 (2012); Heller v. District of
Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (Heller II); Ezell
v. City of Chicago, 651 F.3d 684, 701–04 (7th Cir. 2011); United
States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010), cert.
denied, 131 S. Ct. 2476 (2011); United States v. Marzzarella, 614

-31-
 While the Supreme Court spoke of a right of law-abiding,

responsible citizens to keep and bear arms "in case of

confrontation" outside the context of an organized militia, Heller,

554 U.S. at 582-92; see McDonald, 130 S. Ct. at 3036-42, 3048, it

did not say, and to date has not said, that publicly carrying a

firearm unconnected to defense of hearth and home and unconnected

to militia service is a definitive right of private citizens

protected under the Second Amendment. Debate continues among

courts. Compare Peruta v. County of San Diego, 742 F.3d 1144,

1149-66 (9th Cir. 2014), request for rehearing en banc granted,

2015 WL 1381752 (9th Cir. Mar. 26, 2015) (No. 10-56971); Drake v.

Filko, 724 F.3d 426, 430-31 (3d Cir. 2013), cert. denied, 134 S.

Ct. 2134 (2014); Woollard, 712 F.3d at 874-76; Moore v. Madigan,

F.3d 85, 89 (3d Cir. 2010), cert. denied, 131 S. Ct. 958 (2011);
cf. Kwong v. Bloomberg, 723 F.3d 160, 167 (2d Cir. 2013), cert.
denied, 134 S. Ct. 2696 (2014); United States v. Bena, 664 F.3d
1180, 1182-85 (8th Cir. 2011); United States v. Skoien, 614 F.3d
638, 639–43 (7th Cir. 2010) (en banc). See also Tyler v. Hillsdale
County Sheriff's Dept., 775 F.3d 308, 318 (6th Cir. 2014) ("There
may be a number of reasons to question the soundness of [the] two-
step approach" adopted by various circuits.).
We thus far have entered the discourse on few occasions,
mostly in direct appeals of federal firearms convictions, and have
hewed closely and cautiously to Heller's circumscribed analysis and
holding. See United States v. Carter, 752 F.3d 8 (1st Cir. 2014);
United States v. Armstrong, 706 F.3d 1, 3-8 (1st Cir. 2013),
vacated and remanded on other grounds, 134 S. Ct. 1759 (2014)
(Mem.) (citing United States v. Castleman, 134 S. Ct. 1405 (2014));
United States v. Rehlander, 666 F.3d 45, 48-50 (1st Cir. 2012);
United States v. Booker, 644 F.3d 12, 15-26 (1st Cir. 2011), cert.
denied, 132 S. Ct. 1538 (2012); United States v. Rene E., 583 F.3d
8, 16 (1st Cir. 2009), cert. denied, 558 U.S. 1133 (2010); cf.
Hightower, 693 F.3d 61.

-32-
702 F.3d 933, 935-36 (7th Cir. 2012), with Peruta, 742 F.3d at

1179-91 (Thomas, J., dissenting); Drake, 724 F.3d at 444-46

(Hardiman, J., dissenting); Moore, 702 F.3d at 944-49 (Williams,

J., dissenting); see also United States v. Masciandaro, 638 F.3d

458, 467-68, 474-76 (4th Cir. 2011).10

Perhaps recognizing that we would reject his argument

that Heller and McDonald reach so far, Powell nevertheless invites

us to hold that the limited Second Amendment right as articulated

in Heller extends outside the vicinity of the home. We decline to

do so.

This circuit has yet to weigh in on "the scope of the

Second Amendment as to carrying firearms outside the vicinity of

the home without any reference to protection of the home."

Hightower, 693 F.3d at 72. Thus far, we have held that any

10
We are not sanguine about the Ninth Circuit's
characterization that a "consensus" has developed among the
circuits regarding some limited right under the Second Amendment to
keep and bear operable firearms outside the home for the purpose of
self-defense. See Peruta, 742 F.3d at 1166. True, the Seventh
Circuit in Moore held as the Ninth Circuit posits, at least to a
limited degree. See United States v. Williams, 731 F.3d 678, 693-
94 (7th Cir. 2013) (Hamilton, J., concurring in part and in the
judgment). However, the remaining three circuits identified merely
assumed for analytical purposes, without deciding, that the limited
Second Amendment individual right described in Heller extended
somewhat beyond the hearth and home setting. See Drake, 724 F.3d
at 430-31; Woollard, 712 F.3d at 874, 876; Kachalsky v. Cnty. of
Westchester, 701 F.3d 81, 89 (2d Cir. 2012); see also Hightower,
693 F.3d at 72 n.8, 74 (declining to decide public sphere question,
and assuming without deciding some Second Amendment interest in
publicly carrying a concealed weapon).

-33-
individual right "in carrying concealed weapons outside the home is

distinct from [the] core interest emphasized in Heller," and that

under Heller, "[l]icensing of the carrying of concealed weapons is

presumptively lawful." See id. at 72-74 & n.8. Yet, Powell offers

only a meager measure of briefing, about one page, to support his

rather significant request. He cites two decisions in which the

Seventh and Ninth Circuits ventured into the topic of putative gun

rights in the public sphere as prompted by the holistic,

substantive effect of the regulations challenged before them. See

Moore, 702 F.3d 933; Peruta, 742 F.3d 1144.11 Powell's slight

advocacy, however, makes his coquetry the proper candidate for

appellate waiver. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990); cf. Moore, 702, F.3d at 935 ("The parties and the

amici curiae have treated us to hundreds of pages of argument, in

nine briefs" as advocacy on Second Amendment rights in the public

sphere.).

11
See Peruta, 742 F.3d at 1169-71 (county regulation barred
a typical, law-abiding citizen fearing for his personal safety from
accessing a concealed-carry license, and "open carry" was otherwise
prohibited); Moore, 702 F.3d at 940 ("Illinois is the only state
that maintains a flat ban on carrying ready-to-use guns outside the
home . . . [n]ot even Massachusetts has so flat a ban as
Illinois"); see also Holden, 26 N.E.3d at 726 (emphasizing that
Massachusetts law does not absolutely prohibit handguns in the home
nor ban ready-to-use firearms in public).

-34-
 All told, we conclude that Powell's Second Amendment

claim provides no grounding for setting aside his state firearms convictions.

C. Sixth Amendment Right to Counsel

Powell's ineffective assistance of counsel claim relates

to his trial counsel's failure to move to suppress his statement in

which he denied to the arresting officer that he had possessed a

firearm, without the benefit of Miranda warnings. The SJC rejected

his constitutional claim on the basis that the allegedly deficient

performance of counsel caused Powell no prejudice, because there

was evidence that the police officers saw Powell holding a firearm

and that he attempted to conceal a gun and evade the police while

doing so. Powell, 946 N.E.2d at 125; see Jackson, 344 N.E.2d at

174 (prosecution must prove that the accused "knew that he was

carrying a firearm" and need not prove that the accused knew he

lacked a license to possess and carry a firearm).12

Although Powell agrees that the state court decision is

reviewed under AEDPA, he fails to indicate how it is "contrary to,

or involved an unreasonable application of, clearly established

Federal law" as determined by the Supreme Court. 28 U.S.C.

12
The SJC decided the constitutional issue under the
Massachusetts standard which generally inquires whether there has
been serious deficiency of counsel and whether such substandard
performance "likely deprived the defendant of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 315 N.E.2d 878, 883 (Mass. 1974). The law of our circuit
is that this Massachusetts standard is the functional equivalent of
the federal Strickland standard. Ouber v. Guarino, 293 F.3d 19, 32
(1st Cir. 2002).

-35-
§ 2254(d). Indeed, he does not cite to any Supreme Court

authority, such as Cullen v. Pinholster, 131 S. Ct. 1388 (2011),

Kimmelman v. Morrison, 477 U.S. 365 (1986), or Strickland v.

Washington, 466 U.S. 668 (1984), to grapple with the SJC's analysis

at all. See Lopez, 135 S. Ct. at 3 (reminding that Supreme Court

precedent serves as the benchmark for securing § 2254 relief).

Accordingly, we deem his argument waived. See Glacken, 585 F.3d at

552.

III. Conclusion

Powell's petition gives no grounding for setting aside

his state firearms convictions. Accordingly, we affirm the

district court's decision to deny his § 2254 petition.

So ordered.

- Dissenting Opinion Follows -

-36-
 TORRUELLA, Circuit Judge, Dissenting. In my view, Powell

is entitled to habeas based on his due process claim.

The SJC's adjudication of that claim consisted of a

reference to Commonwealth v. Jones, 361 N.E.2d 1308 (Mass. 1977) to

support the proposition that, because absence of a license13 is not

"an element of the crime," id. at 1311, the burden-shifting device

created by Massachusetts General Laws chapter 278, section 7

accords with due process. Commonwealth v. Powell, 946 N.E.2d 114,

124 (Mass. 2011), cert. denied, 132 S. Ct. 1739 (2012). The task

of assessing whether this part of the SJC's decision was contrary

to, or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court, see 28 U.S.C.

§ 2254(d)(1), is complicated by the fact that the precise role of

licensure under the Massachusetts scheme is unsettled,

notwithstanding Jones's statement. If licensure is an affirmative

defense under the Massachusetts scheme, that scheme must accord

with the Supreme Court's doctrine on affirmative defenses. On the

other hand, if licensure is an element of the offense that is

subject to proof by presumption under the Massachusetts scheme,

that scheme must accord with the Supreme Court's doctrine on

presumptions. In my opinion, Jones and subsequent SJC cases,

13
The difference between a Firearm Identification Card ("FID
card") and a license is not important to my analysis, nor is the
difference between possessing and carrying. For simplicity I refer
to Powell as having been charged with "possessing a firearm without
a license."

-37-
including Powell's, have not spoken clearly on this point, as the

district court in this case recognized. See Powell v. Tompkins,

926 F. Supp. 2d 367, 374-75 (D. Mass. 2013). My first task,

therefore, is to determine the role of licensure under the

Massachusetts scheme.

I. Role of Licensure Under Massachusetts Scheme

I agree with the district court that the text both of

Powell's criminal complaint and of the statutes under which he was

charged indicates that lack of a license is an element of the

offense. The titles of the relevant counts are "Firearm Without

FID Card, Possess" and "Firearm, Carry Without License." (emphasis

added). Likewise, the descriptions of the counts against Powell

repeat the "without a license" phrase. Furthermore, one of the

relevant statutes provides: "Whoever . . . possesses . . . a

firearm . . . without complying with the [FID card]

provisions . . . shall be punished by imprisonment . . . ." Mass.

Gen. Laws ch. 269, § 10(h)(1) (emphasis added). The other relevant

statute provides: "Whoever . . . has in his possession . . . a

firearm . . . without . . . having in effect a license . . . shall

be punished by imprisonment . . . ." Id. § 10(a) (emphasis added).

Reading the text of these counts and statutes to say that

lack of a license is an element of the offense might appear

inconsistent with the text of Massachusetts General Laws chapter

278, section 7, but it is not. That section provides: "A defendant

-38-
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." Id. ch. 278,

§ 7. By its own terms, the requirement that a defendant prove a

license applies only to "[a] defendant . . . relying for his

justification upon a license." Id. (emphasis added). To rely on

a license for a "justification," as that term is generally

understood in criminal law, means to rely on a license for a

defense. See Model Penal Code § 3.01(1) ("[J]ustification is an

affirmative defense."); Black's Law Dictionary 977 (10th ed. 2014)

(defining "justification" as "[a] showing, in court, of a

sufficient reason why a defendant acted in a way that, in the

absence of the reason, would constitute the offense with which the

defendant is charged"). To say that a defendant must prove

licensure in those instances when he relies on a license for his

defense implies that there may be other instances in which

licensure is not viewed as a defense, and in those instances the

defendant may not need to prove it. Otherwise, there would have

been no need for the legislature to include the limiting language.

See Ropes & Gray LLP v. Jalbert, 910 N.E.2d 330, 336 (Mass. 2009)

(recognizing that under Massachusetts law statutes are construed to

avoid surplusage). Thus, the text of section 7, standing alone, is

not probative of whether licensure is an element or a defense in

the particular context of gun possession crimes.

-39-
 Moreover, other cases, distinguishable from Powell's,

exemplify how licensure might be raised as a defense, triggering

application of section 7. Before introducing these cases, it

should be noted that section 7 is a section of general

applicability, appearing in the chapter governing trial procedure

and proceedings before judgement. See Mass. Gen. Laws ch. 278.

The section's full title is, "Burden To Prove License or Admission

To Practice as Attorney at Law," and, in its entirety, it provides,

"A defendant in a criminal prosecution, relying for his

justification upon a license, appointment, admission to practice as

an attorney at law, or authority, shall prove the same; and, until

so proved, the presumption shall be that he is not so authorized."

Id. § 7.

In Commonwealth v. O'Connell, the defendant was convicted

of forgery. See 783 N.E.2d 417, 422 (Mass. 2003). The

Massachusetts statute criminalizing forgery provides: "Whoever,

with intent to injure or defraud, falsely . . . forges . . .

[certain types of documents] shall be punished by

imprisonment . . . ." Mass. Gen. Laws ch. 267, § 1. According to

the SJC: "The elements of the crime of forgery are (1) falsely

making all or part of a document or instrument; (2) with the intent

to defraud." O'Connell, 783 N.E.2d at 424 n.9 (citation omitted).

Despite the fact that the criminal prohibition does not mention

"authority" (which, under section 7, is the equivalent of

-40-
licensure), the defendant in O'Connell tried to argue that lack of

authority to create the relevant documents was an element of the

crime, requiring proof by the prosecution. The SJC disagreed. See

id. at 423-24. Citing section 7, the SJC said that "authority may

be raised as a defense, and, if so raised, the Commonwealth then

bears the burden of proving beyond a reasonable doubt the absence

of authority." Id. at 424.

Similarly, in Commonwealth v. Brunelle, the defendant was

convicted of performing an illegal abortion. See 277 N.E.2d 826,

828 (Mass. 1972). The relevant statute provides, "[w]hoever, with

intent to procure the miscarriage of a woman, unlawfully

administers to her, or advises or prescribes for her, or causes any

poison, drug, medicine or other noxious thing to be taken by

her . . . shall . . . be punished by imprisonment . . . ." Mass.

Gen. Laws ch. 272, § 19. Notably, the statute does not say that

performing any of these actions "without a license" or "without

authority" constitutes the crime. As the SJC explained, citing

section 7, "[i]n [a] prosecution under c. 272, s 19, [the

defendant] had the burden of coming forward with evidence that he,

in some circumstances, might have . . . a defence or justification

for acting in apparent violation of the broad prohibition in s 19

(as, for example, showing that he had a license to practice

medicine in Massachusetts) . . . ." Brunelle, 277 N.E.2d at 829.

-41-
 Unlike the statutes under which Powell was convicted, the

statutes at issue in O'Connell and Brunelle did not include the

"without a license" language. It was thus clear in those cases,

unlike in Powell's, that, were the defendant to invoke licensure,

he would need to do so as a defense, triggering application of

section 7.

In short, if determining the elements of the gun

possession offense depended only on reading the criminal complaint

and statutes, I would hold that lack of a license is an element of

the crime. But I do not write on a clean slate: The SJC in Jones

said that lack of a license is not an element of the offense. 361

N.E.2d at 1311. The district court here noted this Massachusetts

state court interpretation, but afforded it no deference on the

ground that it "def[ied] the plain reading of both the relevant

firearms statutes and Powell's criminal complaint." Powell, 926 F.

Supp. 2d at 375. I conclude that the SJC's statement in Jones does

not preclude the determination that lack of a license is an element

of the offense, but I do not adopt the district court's reasoning.

A federal court on habeas review cannot ignore a high court's

interpretation of its state's statutes simply because, in the

federal court's opinion, that interpretation defies the statutes'

plain meaning. I agree that Jones's interpretation defies the

statutes' plain meaning, but that is not why I refuse to follow

Jones's statement. Instead, I feel free to depart from Jones

-42-
because, as I detail below, since Jones was decided, the SJC has

not spoken uniformly on whether the lack of a license is an element

of the offense.

After Jones was decided, in Commonwealth v. Toole, 448

N.E.2d 1264 (Mass. 1983), the SJC was presented with the following

facts: After pulling over the defendant's truck, as part of a

routine frisk, a police officer found an empty holster and an

ammunition clip on the defendant's person. Id. at 1265-66. This

prompted the police to search the truck, revealing a firearm behind

the seat. Id. at 1266. After the search, the defendant was asked

if he had an FID Card, which he did not. Id. The SJC held that,

since there was no showing that the police had any reason to

believe that the defendant's possible possession of a gun was a

crime -- not having asked the defendant before the search whether

he had an FID card -- no probable cause or exigent circumstances

existed to justify the warrantless search. Id. at 1268. Said the

SJC:

The empty holster and ammunition found on the
defendant certainly created probable cause to
believe that there was a gun in the cab. But
carrying a .45 caliber revolver is not
necessarily a crime. A possible crime was
carrying a gun without a license to carry
firearms. . . However, the police did not
learn that the defendant had no firearm
identification card until after the search.

Id. (citation omitted).

-43-
 Because Jones established that lack of a license could be

presumed to be an element of the offense, whereas Toole implied

that it could not, in Commonwealth v. Couture, the Commonwealth

argued that the two cases led to "an 'irrational' result, namely,

that a police officer in the street must show more in determining

that a gun is unlawfully carried than a prosecutor needs to prove

to obtain a conviction." 552 N.E.2d 538, 540 (Mass. 1990). The SJC

attempted to reconcile the cases as in the following manner:

Jones dealt with the allocation of burdens in
the context of a criminal trial. The
particular burden to which . . . Jones
pertains is not the burden of proof, but
merely the burden of coming forward with
evidence sufficient to raise an issue of fact.
. . Where the defendant at trial has had
every opportunity to respond to the
Commonwealth's charge that the defendant was
unlawfully carrying a handgun, where the
defendant need only produce that slip of paper
indicating that he was licensed to carry that
gun, and where instead the defendant produces
no evidence to that effect, the jury are
entitled to presume that the defendant indeed
did not have a license to carry the gun, and
the Commonwealth need present no additional
evidence to prove that point. This scenario
is a far cry from a defendant who, having
merely been seen in public with a handgun, and
without any opportunity to respond as to
whether he has a license, is forced out of his
vehicle at gunpoint and subjected to an
invasive search. . . . The mere possession of
a handgun was not sufficient to give rise to a
reasonable suspicion that the defendant was
illegally carrying that gun, and the stop was
therefore improper under Fourth Amendment
principles.

Id. at 540-41 (citation omitted).

-44-
 After Coutre, in Commonwealth v. Alvarado, the SJC

reiterated:

Carrying a gun is not a crime. Carrying a
firearm without a license (or other
authorization) is. . . . Carrying a weapon
concealed in a towel, a bag, or a knapsack,
for example, . . . is not a crime in this
State. The suspected crime in such
circumstances can only be the carrying of an
unlicensed weapon, because carrying a
concealed weapon is not, standing alone, an
indication that criminal conduct has occurred
or is contemplated.

667 N.E.2d 856, 859 (Mass. 1996).

Then, in Commonwealth v. Gouse, 965 N.E.2d 774 (Mass.

2012), the SJC attempted to downplay the significance of decisions

like Couture and Alvarado, which seemed to have called into

question Jones's statement that lack of a license is not an element

of the offense. There, the SJC concluded that the elements of the

offense are simply (1) possession of (2) a firearm, and said that

statements to the contrary made in other contexts "do[] not

diminish this conclusion with regard to the essential elements of

the crime." Id. at 787 n.17. Referring to Couture and Alvarado,

the SJC in Gouse said:

In those cases, we concluded that the mere
presence of a firearm without more did not
furnish probable cause or reasonable suspicion
sufficient to justify the seizure of an
individual by a police officer in the field;
we were not asked to examine the requirements
of § 10(a) in the context of the proof
necessary at a trial. There is, therefore, no
meaningful conflict between the manner in
which those cases, and the ones [that include

-45-
 the crime as consisting of only two elements],
describe the crime of unlawful possession of a
firearm. . . . Our respect for an
individual's rights under the Fourth
Amendment . . . against unreasonable searches
and seizures on the street has no bearing on
the allocation of burdens at trial.

Id. (citations omitted).

I recognize that it is the province of the states to

define crimes and defenses and to allocate burdens. But from what

I can tell, Massachusetts simply has not provided a clear

definition of the offense of illegal firearm possession. I

understand that protecting individuals' rights against unreasonable

searches and allocating burdens at trial are distinct enterprises,

but I do not see how this distinction permits a state court,

consistent with due process, to interpret a criminal statute to

have three elements in one context but to have only two elements in

another. See Johnson v. Goméz, No. C 96-2913 CAL, 1997 WL 703770,

at *7 (N.D. Cal. Oct. 28, 1997) (not reported), aff'd, 166 F.3d 343

(9th Cir. 1998) ("A state court's determination that a statutory

provision does not characterize an element of the offense must

nonetheless comport with due process." (citing McMillan v.

Pennsylvania, 477 U.S. 79, 85-86 (1986)).

Here, this court is confronted with what, to my

knowledge, is a novel scenario: The state legislature made lack of

a license an element of the offense, whereas the state judiciary

has spoken ambiguously on the matter. It should be noted that when

-46-
the Supreme Court has discussed states' authority to define crimes

and to allocate burdens in the past, the discussion has often

focused on the state's legislative, not judicial, branch. For

instance, in McMillan v. Pennsylvania, the Supreme Court said, "in

determining what facts must be proved beyond a reasonable doubt the

state legislature's definition of the elements of the offense is

usually dispositive: '[T]he Due Process Clause requires the

prosecution to prove beyond a reasonable doubt all of the elements

included in the definition of the offense of which the defendant is

charged.'" McMillan, 477 U.S. at 85 (emphasis added by McMillan)

(quoting Patterson v. New York, 432 U.S. 197, 210 (1977)).

I find it notable that in other states, the legislature's

and the judiciary's visions on this subject accord. Indeed, in

Gouse the SJC said that licensure as an affirmative defense to

firearm charges "has been fully recognized in other jurisdictions."

965 N.E.2d at 788. In support of this proposition, the SJC cited

cases from both Florida and Indiana. Id. An analysis of these

cases proves revealing.

From Florida, the SJC cited Watt v. State, 31 So. 3d 238

(Fla. Dist. Ct. App. 2010), which itself quoted State v. Robarge,

450 So. 2d 855 (Fla. 1984). When Robarge arose in 1984, the

relevant Florida statute provided, "Whoever shall carry . . . any

pistol . . . without having a license . . . shall be guilty of a

misdemeanor . . . ." Fla. Stat. § 790.05 (repealed 1987). In

-47-
Robarge, the State argued that licensure should be considered an

affirmative defense. 450 So. 2d at 856. The Supreme Court of

Florida first set out the general rule for determining whether a

statutory exception is an element of an offense or a defense: "[I]f

there is an exception in the enacting clause, the party pleading

must show that his adversary is not within the exception; but, if

there be an exception in a subsequent clause, or a subsequent

statute, that is [a] matter of defence [sic], and is to be shown by

the other party." Id. (quoting Baeumel v. State, 7 So. 371, 372

(1890)). Because, in the Florida statute, the phrase "without

having a license" "exception" appeared in the "enacting clause,"

the Robarge court held that the absence of a license was an element

of the crime. Id.

Subsequent to Robarge, the Florida legislature amended

the statutory scheme. Today, one statutory section provides, "a

person who carries a concealed weapon . . . commits a misdemeanor."

Fla. Stat. § 790.01(1). In other words, the current statute

outrightly bans carrying, without any mention of licensure.

Another statutory subsection provides, "section [790.01] does not

apply to a person licensed to carry a concealed weapon . . .

pursuant to the provisions of s. 790.06." Id. § 790.01(3). In

turn, independent section 790.06(1) provides, "[a]ny person in

compliance with the terms of [a] license [to carry] may carry a

concealed weapon or concealed firearm notwithstanding the

-48-
provisions of s. 790.01." Id. § 790.06(1) (emphasis added). These

independent provisions provide the affirmative defense to the

outright ban.

Watt v. State, the Florida case cited by the SJC in

Gouse, arose under this new statutory scheme. 31 So. 3d 238 (Fla.

Dist. Ct. App. 2010). There, the court said:

Under the terms of the concealed
weapon/firearm statute, the state does not
have the burden of proving the absence of a
license as an element of the crime. Rather,
proof of a license is pertinent only as an
affirmative defense. Generally, for a
statutory exception, such as a license, to
constitute a defense under Florida law, the
exception "must be in a clause subsequent to
the enacting clause of a statute." . . . The
license defense is in the subsequent
clause . . . . As such, it is an affirmative
defense, not an element of the crime.

Id. at 242 (footnote omitted)(citations omitted) (quoting Robarge,

450 So. 2d at 856). As the current Massachusetts scheme is akin to

the old Florida scheme -- lack of a license is mentioned in the

very section that creates the criminal offense -- the SJC's

reliance in Gouse on Florida cases was misplaced.

As for Indiana cases, the SJC in Gouse, 965 N.E.2d at

788, cited Taylor v. State, 578 N.E.2d 664 (Ind. 1991), which

itself cited Washington v. State, 517 N.E.2d 77 (Ind. 1987). The

Indiana statute at issue in both Taylor and Washington provides,

"[A] person shall not carry a handgun . . . without being

licensed." Ind. Code § 35-47-2-1(a). An independent section

provides, "[I]t is not necessary . . . to allege the absence of a

-49-
license . . . . The burden of proof is on the defendant to

prove . . . that he has a license . . . ." Id. § 35-47-2-24(a).

In Washington, the Supreme Court of Indiana held that

lack of a license was not an element of the crime, and that

possession of a license was a defense on which the defendant bore

the burden of proof. 517 N.E.2d at 79. Four years later, in

Taylor, the Supreme Court of Indiana, in a three-two opinion,

reiterated that possession of a license was a matter for the

defendant to establish as an affirmative defense. 578 N.E.2d at

666 (citing id.). The dissent cited the following principle of

Indiana law: "When an offense is created by statute and another

statute or another section of the same statute makes exceptions

thereto, it is not necessary for the prosecution in the indictment

or affidavit to negate the exception by stating that the defendant

does not come within the same." Id. at 667 (DeBruler, J.,

concurring in part and dissenting in part) (quoting Day v. State,

241 N.E.2d 357, 359 (1968)). Because, in the Indiana statute, the

"without being licensed" language is found in the enacting clause,

the dissent argued that the prosecution should bear the burden of

establishing that the defendant lacked a license. Id. It

consequently called for Washington v. State to be overruled. Id.

Several things about the Indiana scheme are notable.

First, the independent proviso in the Indiana code is clearer than

section 7 of chapter 278 in its intent to cast licensure as an

affirmative defense. It pertains only to gun possession

-50-
prosecutions, appears in the same chapter as the substantive

prohibition, and explicitly relieves the prosecution of alleging

lack of a license. Unlike section 7, which, as discussed above,

applies only when licensure is raised as a defense, the Indiana

proviso explicitly makes licensure a defense. In addition, a

majority of the Indiana Supreme Court, unlike the SJC, has spoken

consistently with respect to the non-element status of licensure.

Moreover, despite this clarity and consistency, the proposition

that licensure is an affirmative defense garnered only a bare

majority of the Indiana Supreme Court in Taylor, and, so far as I

can tell, no federal court has been asked on habeas review to

assess whether Indiana's scheme comports with due process.

Given the clear text of Powell's criminal complaint and

the Massachusetts statutes, the unclear gloss on those statutes

supplied by the SJC, and the comparison to other jurisdictions

(invited by the SJC in Gouse), I conclude that in Massachusetts, a

lack of a license is an element of the offense of possessing a gun

without a license.

Having reached this conclusion, I must decide whether the

SJC's treatment of that element in Powell's case was contrary to,

or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court. Powell would read

the SJC's opinion simply to say that he bore the burden of proof on

the licensure element. On that reading, the opinion would clearly

be contrary to federal law. After all, it has been clear since In

-51-
re Winship that a state may not place on the defendant the burden

of disproving an element of an offense. 397 U.S. 358, 364 (1970).

Nevertheless, the district court, in Powell, had a more

charitable view of the SJC's defense of the Massachusetts scheme

See 926 F. Supp. 2d at 376. Looking past Jones's erroneous

statement that licensure is not an element but an affirmative

defense, the district court held Jones and section 7 to permit the

lack of a license element to be presumed. Id. Indeed, section 7

provides that "the presumption shall be that [a defendant] is not

[licensed]." Mass. Gen. Laws ch. 278, § 7. The defendant can

rebut this presumption by adducing evidence of a license, so the

presumption, in effect, shifts only the burden of production of

licensure onto the defendant, leaving the burden of persuasion with

the prosecution. I now analyze de novo whether the SJC's

disposition of Powell's due process claim comports with the clearly

established federal law of presumptions.

II. Analysis of SJC's Opinion Under Federal Presumption Law

A. SJC's Discussion of Federal Presumption Law

In rejecting Powell's due process claim, the SJC did not

cite any Supreme Court cases. See 946 N.E.2d at 124. Instead, it

cited its previous discussion in Jones. Id. In Jones, and, by

reference, in Powell, the SJC, in upholding the constitutionality

of the Massachusetts scheme, relied on the Supreme Court cases,

Mullaney v. Wilbur, 421 U.S. 684 (1975), and Morrison v.

California, 291 U.S. 82 (1934). See 361 N.E.2d at 1311-12.

-52-
 Mullaney held that it violates due process for a state to

require a defendant charged with murder to prove, in an attempt to

reduce the charge to manslaughter, that he acted in the heat of

passion on sudden provocation. 421 U.S. at 703-04. This holding

comports with Winship. See 397 U.S. at 364. In Jones, the SJC

relied on two footnotes from Mullaney. See 361 N.E.2d at 1311-12.

In one, the Supreme Court recognized, "[m]any States do require the

defendant to show that there is 'some evidence' indicating that he

acted in the heat of passion before requiring the prosecution to

negate this element by proving the absence of passion beyond a

reasonable doubt. Nothing in this opinion is intended to affect

that requirement." 421 U.S. at 702 n.28 (citations and internal

quotation marks omitted).

In the other footnote, the Court said:

Generally in a criminal case the prosecution
bears both the production burden and the
persuasion burden. In some instances,
however, it is aided by a presumption or a
permissible inference. These procedural
devices require (in the case of a presumption)
or permit (in the case of an inference) the
trier of fact to conclude that the prosecution
has met its burden of proof with respect to
the presumed or inferred fact by having
satisfactorily established other facts. Thus,
in effect they require the defendant to
present some evidence contesting the otherwise
presumed or inferred fact. Since they shift
the production burden to the defendant, these
devices must satisfy certain due process
requirements.

Id. at 702 n.31 (citations omitted). In other words, while

Mullaney prohibited a state from shifting onto the defendant the

-53-
ultimate burden of proof of an element, the SJC invoked those parts

of Mullaney where the Court explained that its ruling would still

permit a state to shift to the defendant the burden of initial

production, so long as the burden of persuasion rested with the

prosecution.

Of course, as reflected in the second Mullaney passage

quoted above, the Court noted that there are due process

constraints on the state's ability to shift the burden of

production through use of presumption. In articulating those

constraints, the SJC in Jones curiously looked not to the cases

cited by Mullaney, but instead to Morrison v. California, which the

SJC alleged provided "[a] classic statement" of the due process

limits on shifting the burden of production. Jones, 361 N.E.2d at

1312. Jones quoted the following passage form Morrison:

The limits are in substance these, that the
state shall have proved enough to make it just
for the defendant to be required to repel what
has been rpoved [sic] with excuse or
explanation, or at least that upon a balancing
of convenience or of the opportunities for
knowledge the shifting of the burden will be
found to be an aid to the accuser without
subjecting the accused to hardship or
oppression.

Id. (correct in original) (quoting Morrison, 291 U.S. at 88-89).

The SJC continued on to quote Morrison: "Such a shift [in the

burden of production] may be proper if there is a 'manifest

disparity in convenience of proof and opportunity for knowledge,

as, for instance, where a general prohibition is applicable to

-54-
every one who is unable to bring himself within the range of an

exception.'" Id. (quoting 291 U.S. at 91).

However, Jones's invocation of Morrison as the

constitutional test for shifting the burden of production through

presumption is problematic. The first Morrison passage quoted by

the SJC pertains to the limits on shifting not the burden of

production, but rather the ultimate burden of proof. See 291 U.S.

at 88-89. And the second passage quoted by the SJC is incomplete.

The excerpt in the SJC's opinion focuses on disparity in

convenience of proof and opportunity for knowledge as justifying a

shift of the production burden. In fact, Morrison said, "For a

transfer of the burden, experience must teach that the evidence

held to be inculpatory has at least a sinister significance, or, if

this at times be lacking, there must be in any event a manifest

disparity in convenience of proof and opportunity for

knowledge . . . ." Id. at 90-91 (citations omitted). Jones's

selective quotation overlooks the requirement that "the evidence

held to be inculpatory ha[ve] at least a sinister significance."

This requirement was important to the holding in Morrison. There,

the defendants were convicted under a statute making it a crime to

possess land if one was both a noncitizen and ineligible for

citizenship. Id. at 83. The Court held unconstitutional a scheme

under which the state needed to prove only possession of land,

leaving proof of either citizenship or eligibility for citizenship

to the defendant. Id. at 97-98. The Court explained:

-55-
 Possession of agricultural land by one not
shown to be ineligible for citizenship is an
act that carries with it not even a hint of
criminality. To prove such possession without
more is to take hardly a step forward in
support of an indictment. No such probability
of wrongdoing grows out of the naked fact of
use or occupation as to awaken a belief that
the user or occupier is guilty if he fails to
come forward with excuse or explanation. The
legislature may go a good way in raising (a
presumption) or in changing the burden of
proof, but there are limits. What is proved
must be so related to what is inferred in the
case of a true presumption as to be at least a
warning signal according to the teachings of
experience.

Id. at 90 (citations and internal quotation marks omitted). In

other words, to support its holding, the Court focused less on the

disparity in convenience of proof, and more on the facts that

possession of land -- the evidence held to be inculpatory -- (1)

lacked a sinister significance, and (2) was not related to the

possessor's citizenship status.

B. Federal Presumption Law

Had the SJC in Jones looked not to Morrison, but to the

cases cited by Mullaney itself in support of the proposition that

there are due process constraints on the state's ability to shift

even the burden of production, the SJC would have had the guidance

of Barnes v. United States, 412 U.S. 837 (1973) and Turner v.

United States, 396 U.S. 398 (1970). See Mullaney, 421 U.S. at 702

n.31.

The Barnes Court commenced with "a review of . . .

decisions[, including Turner,] which have considered the validity

-56-
under the Due Process Clause of criminal law presumptions," 412

U.S. at 841, and concluded that "[t]he teaching of the [reviewed]

cases is not altogether clear," id. at 843. Some cases, like

United States v. Gainey, 380 U.S. 63 (1965), applied the test first

announced in Tot v. United States, 319 U.S. 463, 467 (1943) that

there must be a "rational connection between the fact proved and

the ultimate fact presumed."

I pause here to review the test established by Tot.

There, the government urged the Court to hold that two alternative

tests governed the validity of presumptions. "The first is that

there be a rational connection between the facts proved and the

fact presumed; the second that of comparative convenience of

producing evidence of the ultimate fact." Tot, 319 U.S. at 467.

But, according to Tot:

We are of opinion that these are not
independent tests but that the first is
controlling and the second but a corollary.
Under our decisions, a statutory presumption
cannot be sustained if there be no rational
connection between the fact proved and the
ultimate fact presumed, if the inference of
the one from proof of the other is arbitrary
because of lack of connection between the two
in common experience.

Id. at 467-68. Of the many cases cited in support of this

statement, the most recent was Morrison v. California. See id. at

468 n.9. To reiterate, the SJC in Jones focused exclusively on

what Morrison had said regarding comparative convenience of

producing evidence, and ignored what Morrison had said regarding

-57-
the need for a connection between the innocuous fact proved and the

culpable fact presumed. In light of Tot's statement that the

"comparative convenience" test is "but a corollary" of the

"controlling" "rational connection" test -- a statement that, as

noted above, reflects the very reasoning of Morrison itself -- the

SJC's sole focus on comparative convenience was misguided.

Another case reviewed by Barnes, Leary v. United States,

purported to expound on Tot's "rational connection" test by saying

that a "presumption must be regarded as 'irrational' or

'arbitrary,' and hence unconstitutional, unless it can at least be

said with substantial assurance that the presumed fact is more

likely than not to flow from the proved fact on which it is made to

depend." 395 U.S. 6, 36 (1969) (emphasis added). In a footnote,

the Leary Court said that, since the inference at issue failed to

satisfy this "more likely than not" gloss on Tot's "rational

connection" test, the Court did not need to reach the question

whether a presumption being used to prove an element of a crime

must satisfy not only the "more likely than not" gloss, but also

the "reasonable doubt" standard. Id. at 36 n.64. Both the final

case reviewed by Barnes, Turner v. United States, and the Barnes

case itself noted that Leary reserved the question whether the

"more likely than not" or "reasonable doubt" standard controlled in

criminal cases, but they too left this question open by concluding

that the presumptions under review satisfied even the more

-58-
stringent "reasonable doubt" standard. See Barnes, 412 U.S. at

845; Turner, 396 U.S. at 416.

This much is clear from the survey of these cases: if a

presumption cannot satisfy Tot's "rational connection" test, it is

unconstitutional; and if a presumption can satisfy the "reasonable

doubt" standard, it is constitutional. As discussed below, I

conclude that the presumption at play here fails the "rational

connection" test, so I need not wade into the murky water

submerging presumptions that survive "rational connection" but fail

"reasonable doubt."

Another principle from Barnes and Tot explains the

relationship between a presumption and a de facto shift of the

production burden. The Barnes Court said:

It is true that the practical effect of
instructing the jury on [an] inference . . .
is to shift the burden of going forward with
evidence to the defendant. . . . In Tot v.
United States, the Court stated that the
burden of going forward may not be freely
shifted to the defendant. Tot held, however,
that where there is a "rational connection"
between the facts proved and the fact presumed
or inferred, it is permissible to shift the
burden of going forward to the defendant.

Barnes, 412 U.S. at 846 n.11 (citations omitted).

Finally, after Barnes, in County Court of Ulster Cty. v.

Allen, 442 U.S. 140 (1979), the Supreme Court offered another

discussion of presumption law, explaining that presumptions can be

permissive or mandatory. Permissive presumptions allow, but do not

require, the trier of fact to infer an "elemental fact" (i.e., the

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existence of an element of the crime) from proof by the prosecution

of a "basic" or "evidentiary" fact. Id. at 156-57. Because such

a permissive presumption "does not shift the burden of proof, it

affects the application of the 'beyond a reasonable doubt' standard

only if, under the facts of the case, there is no rational way the

trier could make the connection permitted." Id. at 157. A

mandatory presumption, however, "may affect not only the strength

of the 'no reasonable doubt' burden but also the placement of that

burden; it tells the trier that he or they must find the elemental

fact upon proof of the basic fact, at least unless the defendant

has come forward with some evidence to rebut the presumed

connection between the two facts." Id.

The Court went on to explain that the class of mandatory

presumptions can be further divided between "presumptions that

merely shift the burden of production to the defendant, following

the satisfaction of which the ultimate burden of persuasion returns

to the prosecution; and presumptions that entirely shift the burden

of proof to the defendant." Id. at n.16. With respect to mandatory

presumptions that shift only the burden of production, the Court

said that "[t]o the extent . . . [the] presumption imposes an

extremely low burden of production -- e.g., being satisfied by

'any' evidence -- it may well be that its impact is no greater than

that of a permissive inference, and it may be proper to analyze it

as such." Id. To decide what type of presumption is involved in a

case, said the Court, "the jury instructions will generally be

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controlling, although their interpretation may require recourse to

the statute involved and the cases decided under it." Id.

C. The Presumption at Issue

I now turn to the presumption at play in Powell's case.

Because Powell had a bench trial, no jury instructions were given.

As a result, the district court resorted to both the text of

section 7 and the surrounding caselaw. See Powell, 926 F. Supp. 2d

at 376-77. The district court read section 7 -- which provides

that, until licensure is proved, "the presumption shall be that [a

defendant] is not [licensed]," Mass. Gen. Laws ch. 278, § 7 (West

2014) (emphasis added) -- to establish a mandatory presumption.

Powell, 926 F. Supp. 2d at 377. Looking to surrounding caselaw,

such as Couture, the district court determined that section 7's

mandatory presumption shifted only the burden of production and not

the ultimate burden of persuasion. Id. Moreover, the district

court determined that "the burden of production [could] be met by

a minimal showing -- that is, the mere production of a license."

Id. Consequently, the court analyzed the presumption as if it was

permissive, rather than mandatory. Id. I agree with this much of

the district court's analysis.

At this point, I part ways with the district court.

Again, the Allen Court held that permissive presumptions "affects

the application of the 'beyond a reasonable doubt' standard" -- and

thus raise a constitutional concern -- "only if, under the facts of

the case, there is no rational way the trier could make the

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connection permitted." 442 U.S. at 157. Here, the district court

concluded, "[o]ne can rest assured that . . . any reasonable trier

of fact could indeed ascertain a rational connection between the

facts proved (the possession and carrying of a firearm) and the

fact presumed (the absence of a license)." Powell, 926 F. Supp. 2d

at 377. In other words, according to the district court, one's

performance of conduct requiring a license rationally implies the

lack of a license. With all due respect to the district court,

this alleged connection is not rational. To see this error, one

need only consider that the act of performing surgery does not

suggest that the surgeon lacks a medical license.

The Commonwealth argues that the presumption under review

makes use of a "rational connection" between the lack of a license

and the defendant's failure, in the face of firearms charges, to

come forward with evidence of a license, rather than the mere

possession of a firearm. This purported rational connection is

troubling, to say the least. Under this theory, in the face of

murder charges, a defendant's failure to raise an alibi defense

could give rise to the presumption that he was at the scene of the

crime. To hold that lack of a license can be presumed from the

defendant's failure to raise the issue at trial is to elide the

distinction between an element of a crime subject to proof by

presumption and an affirmative defense. The fundamental principle

that one is innocent until proven guilty would be weak indeed if

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one's failure to present a defense was sufficient to imply proof of

guilt.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), a state ruling cannot contradict clearly

established federal law. 28 U.S.C. § 2254 (d)(1). If federal law

is unclear, or if the state ruling is consistent with federal law,

then the state wins and habeas is not granted. Id. As I am unable

to perceive a reading of the SJC's disposition of Powell's due

process claim that does not contradict clearly established federal

law as determined by the Supreme Court, I conclude that the AEDPA

standard has been met. To the extent that the SJC in Powell,

through reference to Jones, elevated the "comparative convenience"

test over the "rational connection" test, the adjudication was

"contrary to" federal law. Further, to the extent that the SJC,

again through reference to Jones, found the "rational connection"

test satisfied by the presumption at issue, the adjudication

involved an "unreasonable application" of federal law.

I respectfully dissent.

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