United States Court of Appeals
For the First Circuit
No. 01-2353
PAUL GUNTER,
Petitioner, Appellee,
v.
MICHAEL T. MALONEY,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Circuit Judge,
and Bownes and Magill,* Senior Circuit Judges.
James M. Doyle with whom Carney & Bassil was on brief
for appellee.
William J. Meade, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief for appellant.
____________________
April 29, 2002
____________________
*
Of the Eighth Circuit, sitting by designation.
LYNCH, Circuit Judge. Paul Gunter, convicted in 1996 of
felony murder and other charges in Massachusetts and sentenced to
life imprisonment, was granted a writ of habeas corpus by the
federal district court on August 23, 2001. We reverse, vacate the
writ, and dismiss the petition.
I.
The facts underlying Gunter's conviction are set out in
detail in the opinion of the Massachusetts Supreme Judicial Court
(SJC). Commonwealth v. Gunter, 427 Mass. 259, 692 N.E.2d 515, 518-
19 (1998). The factual findings of the state court are presumed to
be correct under 28 U.S.C. § 2254(e)(1). See Sanna v. DiPaolo, 265
F.3d 1, 7 (1st Cir. 2001). We describe the facts briefly.
Gunter was part of a group that sold illegal drugs from
a Boston apartment. On March 21, 1991, three men stole drugs from
the apartment. Gunter and three of his associates in crime --
Corey "Floyd" Selby, Mark Edwards, and Larricia McConnico -- drove
to another apartment where they, incorrectly, thought the thieves
might be. Gunter waited outside in the car and knew his confreres
intended to kill or hurt the thieves. Gunter's three colleagues
entered the apartment and held at gunpoint the four innocent people
inside -- Anthony Madden, Annette Gilbert, Gwendolyn McKenzie, and
Jack Berry Jr. -- while Gunter waited in the car. Before they left
the apartment, Selby shot and killed Berry. Thus Madden, Gilbert,
and McKenzie were bystanders to the murder of Berry. Selby,
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Edwards, and McConnico then ran back to the car and, with Gunter,
drove away from the murder scene.
Gunter was convicted as a joint venturer of murder in the
first degree on a felony murder theory. The underlying felony
charged in the indictment was assault with a dangerous weapon in a
dwelling house. Mass. Gen. Laws ch. 265, § 18A. The prosecution
theory, proven at trial, was that Berry had been assaulted and that
assault was the felony to support the felony murder. When the case
was on appeal to the SJC, that court on its own raised the issue of
[w]hether, in light of the defendant's conviction as a
joint venturer of murder in the first degree on a theory
of felony-murder, where the underlying felony was armed
assault in a dwelling with intent to commit a felony the
felony is sufficiently 'independent' of the
murder itself to justify the first degree murder
conviction,
or whether it had merged with the killing. Gunter, 692 N.E.2d at
524 (citation omitted). Because Gunter did not raise this merger
doctrine issue himself at trial or on appeal, the issue was
procedurally defaulted, and the SJC subjected it to discretionary
miscarriage of justice review only, as it is empowered to do under
Mass. Gen. Laws ch. 278, § 33E. The SJC asked for briefing on the
issue. Only then did petitioner make the merger doctrine argument,
which the SJC had raised on its own, and argue that letting the
felony murder conviction stand would deprive him of his rights to
a fair trial and due process as guaranteed by the United States
Constitution.
On that miscarriage of justice review, the SJC decided
that under the merger doctrine, the theory of the prosecution,
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which used the assault on Berry as the underlying felony, was
unsound because the underlying felony of assault on Berry merged
with the killing of Berry. Nonetheless the SJC did not reverse
because it found Gunter, on the evidence at trial, was properly
convicted under a different felony murder theory, although the
alternate theory was not the theory that the prosecution actually
used at trial. The alternate theory was that the felony of assault
on the bystanders was the underlying felony to support the felony
murder conviction. The SJC reasoned that based on the "ample
evidence presented by the Commonwealth," the jury could have found
Gunter guilty beyond a reasonable doubt of the independent assaults
committed on Gilbert, Madden, and McKenzie, thus providing the
felony to underlie the felony murder conviction. Id. at 526-27.
The SJC acknowledged that the assaults on the bystanders were not
specified in the indictment, but found that fact irrelevant because
"the statutory form of indictment is sufficient to charge murder by
whatever means it may have been committed, including felony-
murder." Id. at 526. The SJC "conclude[d] that there was no
substantial likelihood of a miscarriage of justice in the
conviction of Gunter as a joint venturer." Id. at 527.
Accordingly, the SJC allowed Gunter's murder conviction to stand,
although it did vacate his conviction for armed assault in a
dwelling place as merged into the murder conviction.
On April 28, 1998, Gunter petitioned the SJC for
rehearing under Mass. R. App. P. 27. He based this petition in
part on a newly made ineffective assistance of counsel claim,
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arguing that trial counsel should have requested a specific jury
instruction "to ensure that the jury's verdict was unanimous as to
which specific acts constituted the underlying assaults." He also
argued that because the underlying felony charged in the indictment
could not serve as an underlying felony in a felony murder
conviction, his conviction denied him due process of law. The SJC,
in its discretion, denied the petition for rehearing on May 22,
1998, without opinion. Gunter never filed a motion for new trial,
the usual vehicle to raise an ineffective assistance claim.
Gunter's petition for a writ of habeas corpus, under 28
U.S.C. § 2254, was filed pro se, and consisted of twelve separate
grounds. Ground eleven stated that his attorney's "failure to
argue that the felony murder doctrine, as applied to the facts of
this case, violated petitioner's federal constitutional rights and
amounted to ineffective assistance of counsel." The district court
initially dismissed the ineffective assistance claim because of
Gunter's failure to exhaust state remedies, but then reversed
itself, accepting appointed counsel's argument that the ground had
fairly been presented to the state court in the petition for
rehearing. The district court granted the writ based on this
ground. Gunter v. Maloney, No. 99-11125-RWZ, slip op. at 6-13 (D.
Mass. Aug. 23, 2001). The Commonwealth now appeals that decision.
II.
The pertinent claim in Gunter's pro se petition for
habeas corpus is that there was ineffective assistance of counsel
in his attorney's failure to present the merger doctrine argument.
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That argument was that Gunter could not be convicted for Berry's
murder because the underlying felony and the homicide had merged,
leaving no underlying felony for a felony murder conviction. It is
unclear from Gunter's petition whether his claim is that counsel
should have made the argument at trial or on appeal to the SJC.
When counsel for Gunter was appointed in the federal habeas case,
counsel elaborated on this theme, arguing that trial counsel should
not have "permitted the jurors to remain in complete ignorance of
the fact[] that . . . the 'Berry-assault' theory was legally
inadequate," and that this violated defendant's right to counsel.
The district judge held that the ineffective assistance
claim had been presented to the state court at what it found was
the first possible opportunity, on a petition for rehearing to the
SJC, and that the claim was therefore properly exhausted. In the
rest of the opinion, the district court largely ignored the
ineffective assistance of counsel issue. Rather, the court went
directly to whether the argument that state trial counsel should
have presented -- the merger doctrine argument -- was procedurally
defaulted. The district court found that the merger doctrine
argument was not procedurally defaulted and that the SJC's decision
was "contrary to clearly established Federal law" because the jury
did not perform any factfinding as to the bystander assaults that
had not merged with the murder, and that the SJC had substituted as
the underlying felony.
It is thus unclear what role the ineffective assistance
claim was meant to play in the habeas petition: as a freestanding
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claim or simply to provide cause to excuse the procedural default
of failing to raise the merger doctrine argument. We consider the
"cause" question later in the opinion.
A. Procedural Default of Merger Doctrine Argument
A finding by a state court that a defendant procedurally
defaulted a claim bars federal habeas corpus relief on that claim
unless that defendant as a petitioner shows either cause for the
default and prejudice from the claimed violation of federal law, or
that a fundamental miscarriage of justice will result if the claim
is not considered. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Here the SJC held that Gunter had procedurally defaulted
the merger doctrine argument, that is, the argument that he could
not be convicted for felony murder if the underlying felony (armed
assault of Jack Berry) was not "separate from the acts of personal
violence which constitute a necessary part of the homicide itself."
Gunter, 692 N.E.2d at 525, 526-27. Gunter could have made this
argument even before the trial began, but he did not bring this
argument to light on his own initiative in all his proceedings
before the Massachusetts state courts. The SJC specifically noted
this, stating that "Gunter himself did not raise this issue." Id.
at 526.
Despite the procedural default and to petitioner's
potential benefit, the SJC acted under its § 33E power, Mass. Gen.
Laws ch. 278, § 33E, by asking the procedurally defaulted question
itself, and requesting briefing on the issue in the course of
determining whether to excuse the default on a miscarriage of
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justice theory. Under § 33E, in capital cases such as this one,
the SJC may overlook procedural defaults if there is a substantial
likelihood that a miscarriage of justice has occurred. Id.; see
also McCown v. Callahan, 726 F.2d 1, 3 (1st Cir. 1984) (citing
Commonwealth v. Tavares, 385 Mass. 140, 430 N.E.2d 1198, 1203-04
(1982)).
The SJC concluded that "there was no substantial
likelihood of a miscarriage of justice in the conviction of Gunter
as a joint venturer." Gunter, 692 N.E.2d at 526-27. The court
noted that if the underlying felony is assaulting someone in a
dwelling, and if the acts "constituting that assault also cause the
homicide, [the court] could not conclude that the felony defined in
G.L. c. 265, § 18A [assault with a dangerous weapon in a dwelling
house], is separate from the acts of personal violence that
constitute a necessary part of the homicide itself." Id. at 526.
The SJC went on to say that "[h]ad the Commonwealth presented
evidence only of the assault on Berry, [the court] could not
conclude that the assault was 'independent.'" Id. Because the
Commonwealth had also presented evidence of assault on Gilbert,
Madden, and McKenzie, there was no miscarriage of justice.
The SJC's conclusion was that even if the Commonwealth's
original prosecution theory was defective, petitioner procedurally
defaulted the claim and would not be saved from his default by a
miscarriage of justice finding. There was no miscarriage of
justice because Gunter was, on the evidence, guilty of felony
murder, even had the indictment and instructions specified the
-8-
correct theory. The SJC's ruling amounted to nothing more than a
decision that Gunter would not be absolved from his procedural
default under its miscarriage of justice review.
If the SJC did not regularly and consistently enforce
this procedural default rule, then it would not, for federal habeas
purposes, constitute an adequate and independent state ground. See
Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988) (when a state
procedural rule has not been "consistently or regularly applied" it
cannot be "an adequate and independent state ground for affirming
petitioner's conviction" on direct review in the Supreme Court);
see also Harris v. Reed, 489 U.S. 255, 262-63 (1989) (the adequate
and independent state ground doctrine applies to cases on direct
review to the Supreme Court and to federal habeas cases). But the
SJC does do so. The SJC regularly enforces the rule that a claim
not raised is waived. See, e.g., Commonwealth v. Fernandes, 430
Mass. 517, 722 N.E.2d 406, 409 n.13 (1999); Commonwealth v.
Dockham, 405 Mass. 618, 542 N.E.2d 591, 599-600 (1989);
Commonwealth v. Johnson, 374 Mass. 453, 373 N.E.2d 1121, 1127-28
(1978). Thus, this rule is firmly established. Miscarriage of
justice review by the SJC under § 33E does not itself create
independent rights in habeas petitioners. The regularity with
which the state waiver law is applied is not disrupted by the
availability or the exercise of state miscarriage of justice
review. Tart v. Massachusetts, 949 F.2d 490 (1st Cir. 1991)
(stating that the SJC's miscarriage of justice review does not by
itself negate the state's contemporaneous objection rule); Puleio
-9-
v. Doucette, 830 F.2d 1197, 1200 (1st Cir. 1987) (same); McCown,
726 F.2d at 4 (same).
Further, where, as here, the state court has
unequivocally held that there was a procedural default (on the
merger doctrine argument) and that it would not excuse that
default, the unexplained denial of a petition for rehearing arguing
that the court's discretionary miscarriage of justice review was
incorrect and raising ineffective assistance for the first time,
cannot fairly be said to rest on federal law. If the last state
court to review a petitioner's case reaches the merits of a federal
claim presented to it, any bar to federal court review is lifted.
Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (citing Harris, 489
U.S. at 262); see also Doucette v. Vose, 842 F.2d 538, 539-540 (1st
Cir. 1988) (giving an example of a state court doing so). However,
when the last state court decision is an unexplained order, there
is "a presumption which gives [it] no effect -- which simply 'looks
through' [it] to the last reasoned decision." Nunnemaker, 501 U.S.
at 804. Here, the order denying the petition for rehearing stated
only that the "Petition for Rehearing . . . had been considered and
denied." We therefore "look through" to the SJC's last opinion
which rested on the state procedural default. None of the state
court's actions lifted the procedural bar.
To the extent the district court held that there was no
procedural default, it was in error. State procedural default is
excused and federal habeas review is permitted only if there is
cause and prejudice. Nonetheless, the district court rejected the
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application of the cause and prejudice standard outlined in
Coleman, 501 U.S at 750, saying it was inapplicable to this case.
The district court said there was no procedural default of what it
thought was an independent claim. It characterized the
constitutional claim before it as not being "based on the merger
doctrine in the usual sense, but on how the SJC sought to preserve
Petitioner's conviction once it had decided that the merger
doctrine applied." The district court was in error: its
characterization of the claim is in essence an attempt to critique
the SJC's discretionary miscarriage of justice review and the SJC's
decision not to excuse the procedural default.
A federal court considering a habeas corpus petition does
not review, under the due process clause or otherwise, a state
court's discretionary decision not to waive a procedural default
under state law. "The mere fact that a state appellate court
engages in a discretionary, and necessarily cursory, review under
a 'miscarriage of justice' analysis does not in itself indicate
that the court has determined to waive an independent state
procedural ground for affirming the conviction." Tart, 949 F.2d at
496. To engage in such a factual analysis is to undermine the rule
that a state court's finding of procedural default is an adequate
and independent state ground.
If some exceptional facts might lead a federal court to
conclude that the state court's exercise of its discretion itself
constituted an independent constitutional violation, this case does
not present them. The SJC did not, as the district court reasoned,
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render its own verdict of guilty on a new theory. Instead, it left
intact an existing jury verdict, to which Gunter had preserved no
valid objection, because after reviewing the whole record it
concluded that justice had been done.
B. Cause and Prejudice or a Fundamental Miscarriage of Justice
Having ruled that the SJC's judgment rests on an adequate
and independent state procedural ground -- default of the merger
doctrine argument -- we describe what are the normal subsequent
analytic steps for a federal habeas court. The next question to
ask is whether petitioner has shown that there was cause for the
default and actual prejudice, or that there was a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750; see also
Levasseur v. Pepe, 70 F.3d 187, 192 (1st Cir. 1995). The district
court did not go through this analysis because it erroneously
concluded there was no procedural default.
The general requirement for cause for a procedural
default is that the prisoner must show "that some objective factor
external to the defense impeded counsel's efforts to comply with
the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488
(1986). One factor accepted as cause is ineffective assistance of
counsel at a level which violates the Sixth Amendment. Coleman,
501 U.S. at 752. As the Court said in Carrier:
So long as a defendant is represented by counsel whose
performance is not constitutionally ineffective under the
standard established in Strickland v. Washington,
[466 U.S. 668 (1984)], we discern no inequity in
requiring him to bear the risk of attorney error that
results in a procedural default.
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Carrier, 477 U.S. at 488. Because the claimed error here was by
counsel at trial and on first appeal, the Strickland right adhered.
See Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying
Strickland to a claim of attorney error on appeal); cf. Coleman,
501 U.S. at 755-57 (refusing to consider attorney error on an
appeal from a denial of state postconviction relief as a possible
cause).
When, however, the habeas petitioner wants to use
ineffective assistance of counsel to establish cause to excuse a
state procedural default, that ineffective assistance claim must
itself ordinarily be fairly presented to the state courts and
exhausted. Edwards v. Carpenter, 529 U.S. 446, 450-54 (2000);
Carrier, 477 U.S. at 488-89. An ineffective assistance claim
requires a great deal of factual development. As the Court stated
in Carrier, without exhaustion requirements for ineffective
assistance claims, "[i]n order to determine whether there was cause
for a procedural default, federal habeas courts would routinely be
required to hold evidentiary hearings to determine what prompted
counsel's failure to raise the claim in question." 477 U.S. at
487. The factual development for an ineffective assistance claim,
like that for any other constitutional claim on habeas, should
occur in the state court system. Alternatively, where petitioner
has failed to exhaust the ineffective assistance claim, petitioner
must show cause for and prejudice from his failure to do so.
Carpenter, 529 U.S. at 453.
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Here, the parties dispute whether the ineffective
assistance claim was fairly presented to the state court. Raising
a claim for the first time to the state's highest court on
discretionary review is not fair presentation for purposes of
exhaustion. See Castille v. Peoples, 489 U.S. 346, 351 (1989).
The Supreme Court in Castille held that "where the claim has been
presented for the first and only time in a procedural context in
which its merits will not be considered unless" there are important
and special considerations, it has not been fairly presented. Id.
In this case, Gunter presented the ineffective assistance
claim for the first and only time in the petition for rehearing to
the SJC. The Massachusetts rule which provides for petitions for
rehearing clearly states that "[a]ction upon a petition is in the
discretion of [the] quorum or panel" that decided the appeal.
Mass. R. App. P. 27(a). Just as in Castille, petitioner here
raised the claim for the first time to the state's highest court on
discretionary review. He did not fairly present it to the state
court, giving it a full opportunity to deal with the claimed
constitutional violation and develop the facts surrounding this
claim.
There was an alternative available for Gunter to exhaust
the ineffective assistance claim. Gunter could have filed a motion
for a new trial as he was entitled to do as of right under
Massachusetts law. Mass. R. Crim. P. 30(a). Federal habeas review
does not demand that a petitioner in every case ask the state for
collateral relief where he has already fairly presented the claim
-14-
and the evidence on direct appeal. Brown v. Allen, 344 U.S. 443,
447 (1953). However, where the claim has not been fairly presented
on direct appeal, as happened here, it should be fairly presented
to the state court through a motion for collateral relief. Byrnes
v. Vose, 969 F.2d 1306, 1307-08 (1st Cir. 1992) (applying this
requirement). Because Gunter did not do so, he has not exhausted
his claim of ineffective assistance.1
And even if we were to assume that the ineffective
assistance claim was exhausted, that there was sufficient cause for
and prejudice from the procedural default,2 and that a state's
1
As we stated earlier, it is unclear whether Gunter is
attempting to use the ineffective assistance of counsel claim as
cause for the procedural default or as a freestanding claim. In
this opinion, we have analyzed the ineffective assistance claim as
an attempt to provide cause for the procedural default. However,
this claim also fails when it is analyzed as a freestanding claim,
because, as we have stated, it was not exhausted in the state
court.
2
We do not want to encourage further, hopeless litigation.
Even if we were to assume that Gunter properly exhausted the
ineffective assistance of counsel claim, we are doubtful that the
Strickland standard can be met so that ineffective assistance would
constitute cause for the procedural default in this case. As the
Supreme Court stated in Carrier, "the mere fact that counsel failed
to recognize the factual or legal basis for a claim . . . does not
constitute cause for a procedural default." 477 U.S. at 486.
We are also doubtful that petitioner could ever show
other cause for his procedural default. There was no external
impediment imposed by the state which caused counsel not to raise
the merger doctrine argument. The merger doctrine argument in
felony murder cases is not a new one, and cannot be said to have
been unavailable to counsel on appeal. See Reed v. Ross, 468 U.S.
1, 14-16 (1984) ("[w]here a constitutional claim is so novel that
its legal basis is not reasonably available to counsel, a defendant
has cause for his failure to raise the claim in accordance with
applicable state procedures."). The intellectual underpinnings for
the merger doctrine argument, as applied to the felony murder rule,
are well established in case law and literature. See P. Robinson,
Imputed Criminal Liability, Yale L.J. 609, 651 n.159 (1984) (citing
cases including People v. Ireland, 450 P.2d 580 (Cal. 1969)). The
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discretionary miscarriage of justice review may be subject to some
form of constitutional constraint in these odd circumstances,
Gunter still has no habeas-worthy constitutional claim. The
district court's ultimate conclusion, is, in our view, simply
wrong.
There is no serious question of fair notice to the
defendant of the crimes involved either under the SJC's bystander
assault felony murder theory or under the assault on the murder
victim felony murder theory. As the SJC noted, the statutory form
of indictment was all that was required as to notice, and the
indictment charged assault in a dwelling house with a dangerous
weapon. Proof of the assault on the bystanders was part of the
Commonwealth's case all along, and the evidence of those assaults
was produced before the jury. Nor do we see any constitutional
infirmity in the jury instruction worthy of habeas relief. To the
extent the district court was concerned that the jury had not been
instructed that it needed to find assault on each bystander, this
court has rejected that concern as a basis for habeas. In Stewart
v. Coalter, 48 F.3d 610 (1995), we said:
Ironically, if the joint venture were one to
commit robbery, it appears that [the defendant] would
still have been guilty of murder under the felony murder
rule followed in Massachusetts and in many other states.
merger doctrine argument was also clearly viable in Massachusetts.
See Commonwealth v. Quigley, 391 Mass. 461, 462 N.E.2d 92, 95
(1984). In addition, the factual underpinnings for the merger
doctrine argument were available to Gunter's counsel from the time
he was charged with the crime. See Carrier, 477 U.S. at 488
(stating that "a showing that the factual . . . basis for a claim
was not reasonably available to counsel . . . would constitute
cause").
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See, e.g., Commonwealth v. Claudio, 418 Mass 103, 634
N.E.2d 902, 906-07 (1994). Of course, that would not be
a basis for sustaining [the defendant's] conviction on
direct appeal since he was never charged with felony
murder. But we doubt whether it would be part of the
office of habeas corpus to release a prisoner whose
"defense" in seeking the writ was that he had committed
murder but only on a theory not properly presented to the
jury.
Stewart, 48 F.3d at 617. The same is true here.
This reasoning also disposes of any argument that a
fundamental miscarriage of justice would occur if we fail to
consider the claim. To show that a fundamental miscarriage of
justice would occur in the habeas context, "petitioner must
establish actual innocence." Simpson v. Matesanz, 175 F.3d 200,
210 (1st Cir. 1999). To do this, "petitioner must show that it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513
U.S. 298, 327 (1995). Here, there is no credible argument that
Gunter is actually innocent of felony murder on a joint venture
theory.
The district court's order granting habeas corpus is
reversed, the writ is vacated, and the petition is dismissed.
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Gunter v. Maloney
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