United States Court of Appeals
For the First Circuit
No. 02-2325
ARTHUR JACKSON,
Petitioner, Appellant,
v.
WILLIAM COALTER,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
R. Matthew Rickman, with whom Frank A. Libby, Jr. and Kelly,
Libby & Hoopes, P.C. were on brief, for petitioner.
Dean A. Mazzone, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Thomas F. Reilly, Attorney General, was on
brief, for respondent.
July 28, 2003
SELYA, Circuit Judge. This convoluted habeas case
presents a tangled scenario that gives rise to difficult questions
of justiciability and constitutional law. The case has taken
innumerable twists and turns. It began when the petitioner pleaded
guilty to a charged crime, started serving a state-imposed
sentence, and then was charged with a second, more serious crime —
one potentially incompatible with the first. He responded by
moving to vacate his original conviction. The state court granted
his motion.
On reflection, the petitioner moved to reinstate that
conviction and attempted instead to raise a double jeopardy defense
to the second charge. The state courts (trial and appellate)
rebuffed these initiatives, and the petitioner repaired to the
federal courts. The district court denied the petitioner's
application for a writ of habeas corpus, ruling that the vacation
of the first conviction thwarted any claim of double jeopardy.
If that were not complicated enough, the petitioner then
struck out in a new direction. During the pendency of the federal
habeas proceeding, he pleaded guilty to the second charge in
exchange for a reduced sentence. After learning what had
transpired, the district court rescinded its earlier ruling and
dismissed the habeas petition as moot.
The petitioner assails both of the district court's
orders. We agree with the petitioner that, in the peculiar
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circumstances of this case, his guilty plea to the second charge
did not render the habeas proceeding moot. Nevertheless, we affirm
the denial of habeas relief. Adhering to the strictures of the
Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214 (1996), we conclude that the state courts
neither acted contrary to, nor unreasonably applied, Supreme Court
precedent when they refused to honor the petitioner's claim of
double jeopardy.
I. BACKGROUND
During the afternoon of March 20, 1996, an armed intruder
entered a doctor's office in Jamaica Plain and departed with, among
other things, a checkbook. Later that day, police in Cambridge
arrested petitioner-appellant Arthur Jackson while he was
attempting to cash one of the purloined checks. The locales are
significant because prosecutorial responsibility in Massachusetts
operates on a county-by-county basis. See Mass. Gen. Laws ch. 12,
§§ 12-32. Jamaica Plain (where the robbery took place) is in
Suffolk County but Cambridge (where the attempted check-passing
occurred) is in Middlesex County.
When the Middlesex County District Attorney charged the
petitioner with receiving stolen property (the purloined checks),
he entered a guilty plea to that charge in Cambridge District
Court. The court imposed a thirty-month sentence (one year to
-3-
serve and the balance suspended). The petitioner began serving his
sentence on April 4, 1996.
One day later, the Suffolk County District Attorney swore
out a criminal complaint charging the petitioner with armed robbery
in connection with the March 20 heist. The petitioner first
learned of this charge five months into his incarcerative term when
an outstanding arrest warrant (which had never been served)
rendered him ineligible to participate in a work-release program.
Fearing that his guilty plea to receiving stolen property would be
used against him at a trial for armed robbery, the petitioner filed
a pro se motion on November 25, 1996. The motion sought to
withdraw the earlier plea, annul the petitioner's conviction, and
set the stage for a new trial on the original charge.1 The gist of
the petitioner's argument was that the presiding judge in the
Cambridge District Court had conducted an insufficient colloquy
and, therefore, had erred in accepting his guilty plea. See, e.g.,
Commonwealth v. Lopez, 690 N.E.2d 809, 812 (Mass. 1998) (discussing
the constitutional requirements for acceptance of a guilty plea);
see also Mass. R. Crim. P. 12(c) (establishing certain procedural
prerequisites for same).
On December 5, 1996, the petitioner was summonsed to the
West Roxbury District Court for arraignment on the Suffolk County
1
For ease in reference, we hereafter refer to this motion
simply as a motion to vacate the conviction.
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complaint. One week later, a Suffolk County grand jury indicted
him for armed robbery. The new indictment included an allegation
that the petitioner was a habitual offender. If proven, this
allegation would require a sentence of life imprisonment. See
Mass. Gen. Laws ch. 265, § 17; id. ch. 279, § 25.
On December 28, 1996, the petitioner completed serving
the incarcerative portion of his sentence for receiving stolen
property. His freedom was short-lived. When he appeared the next
week at Suffolk Superior Court for a pretrial hearing on the armed
robbery charge, he was detained. His detention lasted from that
date (January 2, 1997) until his eventual release, under
circumstances that we shortly shall explain, on July 2, 2002.
On January 14, 1997, the petitioner appeared pro se in
the Cambridge District Court for a hearing on his previously filed
motion to vacate his conviction for receiving stolen property.2 At
the request of court personnel, an itinerant attorney consulted
with the petitioner and informed the presiding judge that the
petitioner "really need[ed] to be represented by counsel in this
case." The lawyer urged the court to withhold any action until the
petitioner's court-appointed counsel in the armed robbery case
could appear. Speaking for himself, the petitioner pressed for
2
Since the motion amounted to a collateral attack on a final
judgment of conviction, the petitioner was not entitled as of right
to court-appointed counsel in connection with it. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987); Commonwealth v. Conceicao, 446
N.E.2d 383, 387 (Mass. 1983).
-5-
vacation of the receiving stolen property conviction, emphasizing
that he had not been given proper warnings in advance of his guilty
plea. The court announced its intention to listen to a tape
recording of the plea proceeding and continued the hearing until
January 30 so the petitioner's attorney could attend.
For reasons that remain obscure, neither the petitioner
nor his court-appointed counsel in the armed robbery case appeared
at the January 30 hearing. The court, however, had reviewed the
tape of the plea proceeding and found the colloquy inadequate.
Stating that "I am the one who erred, and I am correcting the error
now," the presiding judge vacated the petitioner's conviction for
receiving stolen property. The district attorney's office
eventually declined to reprosecute the receiving stolen property
charge.
The armed robbery case remained velivolant and, after
several months had passed, the petitioner began to have second
thoughts about his strategy. On November 19, 1997, he filed a
counseled motion in the Cambridge District Court requesting the
reinstatement of his prior conviction. At around the same time, he
filed a counseled motion in the Suffolk Superior Court seeking
dismissal of the armed robbery charge on double jeopardy grounds.
Both motions were denied. The petitioner then appealed the double
jeopardy ruling to the Massachusetts Supreme Judicial Court (SJC).
A single justice of the SJC, acting pursuant to Mass. Gen. Laws ch.
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211, § 3, ruled that the petitioner's interlocutory appeal was
immediately reviewable but nonetheless rejected the appeal on the
merits. On October 14, 1999, the full court affirmed that
decision. See Jackson v. Commonwealth, 717 N.E.2d 1001, 1005
(Mass. 1999).
While still awaiting trial in the armed robbery case, the
petitioner filed a federal habeas petition. The federal district
court held a hearing on March 7, 2002, and took the matter under
advisement. On July 2, 2002, the petitioner and Suffolk County
prosecutors reached an accord anent the armed robbery charge: in
exchange for the petitioner's guilty plea, the Commonwealth agreed
to abandon the habitual offender allegation and recommend a "time-
served" sentence. The Suffolk Superior Court accepted the plea,
imposed the agreed sentence, and released the petitioner on a term
of supervised probation. The federal district court later stated
that it was not notified of these developments when they occurred.3
On July 30, 2002, the federal district court, still
unaware of the recent plea, denied the petition for habeas relief
3
The court apparently suspected that the failure of
notification resulted from inadvertence. After all, the parties
were represented by different counsel in the two cases (i.e., the
petitioner was represented by one lawyer in the armed robbery case
and by a second, unrelated lawyer in the federal habeas case,
whereas the Commonwealth was represented by the district attorney's
office in the former case and by the Attorney General in the latter
case). For their part, the petitioner's lawyers contend that they
did furnish contemporaneous notice of the guilty plea to the
district court. We need not resolve this conflict.
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on the merits. See Jackson v. Coalter, 2002 WL 1760879, at *4 (D.
Mass. July 30, 2002). Approximately two weeks later, the
Commonwealth moved to reconsider the order. In that motion, the
Attorney General informed the court of the plea bargain in the
armed robbery case and argued that the consummation of that bargain
rendered the habeas petition moot. The district court agreed; in
successive orders, it first vacated its earlier merits decision and
then dismissed the habeas petition as moot.
The petitioner seasonably appealed both the order of
dismissal on the merits and the subsequent order declaring the
controversy moot. The appeal is properly before us, as the
district court has granted a broadly worded certificate of
appealability. See 28 U.S.C. § 2253(c).
II. ANALYSIS
To prevail in this appeal, the petitioner must overcome
two adverse rulings. Common sense suggests that we address these
rulings in reverse chronological order.
A. Mootness.
We afford plenary review to the district court's
determination that the petitioner's guilty plea to the armed
robbery charge rendered his habeas petition moot. See Simpson v.
Matesanz, 175 F.3d 200, 205 (1st Cir. 1999); see also Scarpa v.
Dubois, 38 F.3d 1, 9 (1st Cir. 1994). Initially, however, we deal
with a pair of preliminary matters.
-8-
First, we note that even though the guilty plea to the
armed robbery charge ended the petitioner's incarceration, he
remains under supervised probation. Thus, he is still sufficiently
"in custody" to pursue federal habeas relief. See Lefkowitz v.
Fair, 816 F.2d 17, 19 (1st Cir. 1987) (collecting cases); see
generally Jones v. Cunningham, 371 U.S. 236, 240 (1963) (holding
that the "in custody" requirement for habeas relief necessitates
only "restraints on a man's liberty, restraints not shared by the
public generally").
Second, the petitioner filed his habeas application under
28 U.S.C. § 2254. The district court perspicaciously observed that
the petitioner was still awaiting trial on the armed robbery charge
when he sought habeas relief; that his status was, therefore, that
of a pretrial detainee; and that this circumstance called into
question the appropriateness of the jurisdictional allegation. See
Jackson v. Coalter, 2002 WL 1760879, at *1; see also 28 U.S.C. §
2254(a) (indicating that section 2254 relief is available only to
"a person in custody pursuant to the judgment of a State court").
The district court nonetheless proceeded to adjudicate the matter
on the basis that, under 28 U.S.C. § 2241(c)(3), a writ of habeas
corpus is potentially available to any state prisoner "in custody
in violation of the Constitution or laws . . . of the United
States." This problem does not concern us inasmuch as the
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petitioner has now pleaded guilty to the armed robbery charge, and
his guilty plea subjected him to a state court judgment.
Against this backdrop, we turn to the question of
mootness. A habeas petition is moot if it fails to present a live
case or controversy. See Spencer v. Kemna, 523 U.S. 1, 7 (1998);
see generally Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)
(explaining that the "case-or-controversy requirement subsists
through all stages of federal judicial proceedings"). The question
before us is whether the petitioner's guilty plea foreclosed his
habeas claims (and, thus, rendered his petition moot).
In arguing the affirmative of the proposition, the
Commonwealth chiefly relies upon the Supreme Court's decision in
United States v. Broce, 488 U.S. 563 (1989). In Broce, the
defendants were charged with rigging two separate sets of bids for
state highway contracts. Id. at 565. They eventually pleaded
guilty to two counts of conspiracy. Id. at 566. After another
court, trying a different group of defendants, had ruled that the
rigged bids were part and parcel of a single conspiracy, the Broce
defendants mounted a collateral attack on their second conviction.
Id. at 567. The Supreme Court concluded that "[a] plea of guilty
and the ensuing conviction comprehend all of the factual and legal
elements necessary to sustain a binding, final judgment of guilt
and a lawful sentence." Id. at 569. Consequently, the defendants'
guilty pleas foreclosed any opportunity to revisit the factual
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predicate upon which their convictions rested. See id. at 571
("When respondents pleaded guilty to two charges of conspiracy on
the explicit premise of two agreements which started at different
times and embraced separate objectives, they conceded guilt to two
separate offenses.").
The Commonwealth says that Broce stands for the black-
letter rule that a defendant's guilty plea pretermits any
subsequent collateral attack aimed at negating the resulting
conviction. That formulation, however, reaches beyond the holding
in Broce, which contemplated "exception[s] to the rule barring
collateral attack on a guilty plea." Id. at 574. The exceptions
include guilty pleas such as that discussed in Menna v. New York,
423 U.S. 61 (1975) (per curiam), that is, pleas entered in response
to charges "which the State may not constitutionally prosecute."
Id. at 62 n.2.
Menna is of considerable interest here. In that case,
the defendant, having been granted immunity, refused to testify and
was sentenced for contempt of court. Id. at 61. After his
release, the state indicted him for once again refusing to answer
the same questions. Id. He pleaded guilty to this criminal charge
but then appealed his conviction on double jeopardy grounds. Id.
at 61-62. The state courts ruled that his guilty plea waived his
right to assert a double jeopardy claim. Id. at 62. The Supreme
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Court reversed, holding that a guilty plea does not forgive the
unconstitutionality of an indictment. Id.
The Menna Court emphasized that a guilty plea acts
primarily to "remove[] the issue of factual guilt from [a] case."
Id. at 62 n.2. In most instances, factual guilt is the only
pertinent question and "[a] guilty plea, therefore, simply renders
irrelevant those constitutional violations not logically
inconsistent with the valid establishment of factual guilt." Id.
A guilty plea, however, does not bar a defendant from contending
"that the State may not convict [him] no matter how validly his
factual guilt is established." Id.
The Commonwealth suggests that Broce trumps Menna. We
reject this suggestion. The guilty pleas in Broce admitted factual
elements that were logically inconsistent with the defendants'
subsequent allegations of a constitutional breach. See Broce, 488
U.S. at 570-71. In contrast, the defendant in Menna disputed the
very legitimacy of a second indictment; his guilty plea admitted no
factual predicate that sufficed to make irrelevant his double
jeopardy claim. See Menna, 423 U.S. at 61. The decision in Broce
did not overrule Menna, see Broce, 488 U.S. at 574 ("Menna v. New
York . . . has no application to the case at bar."), and the
decision in Menna remains good law. Therefore, we must adhere to
it. See United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323,
335 n.19 (1st Cir. 2003) ("Our marching orders are clear: follow
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[Supreme Court] decisions until the Supreme Court overrules them.")
(quoting United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d
605, 608 (7th Cir. 2000)).
The distinction between Broce and Menna is critically
important in the case at hand. Here, as in Menna, the petitioner's
challenge implicates the legitimacy ab initio of the second
indictment. He contends, in effect, that even assuming his factual
guilt, the Commonwealth could not constitutionally prosecute him on
the armed robbery charge. Menna teaches that "[w]here the State is
precluded by the United States Constitution from haling a defendant
into court on a charge, federal law requires that a conviction on
that charge be set aside even if the conviction was entered
pursuant to a counseled plea of guilty." Menna, 423 U.S. at 62.
The petitioner's thesis is that the Commonwealth was so precluded
here, and, thus, acted unconstitutionally when it brought the
second indictment. This thesis — the validity of which we shall
test in the next section of this opinion — presents a live
controversy. See id. at 62 n.2 (noting that "a plea of guilty to
a charge does not waive a claim that — judged on its face — the
charge is one which the State may not constitutionally prosecute").
Consequently, the habeas case is not moot. See Spencer, 523 U.S.
at 7-8 (holding that a habeas petitioner satisfies the case or
controversy requirement so long as he suffers from or is threatened
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by a concrete injury that is traceable to allegedly improper state
action and redressable by the invalidation of that action).
B. The Merits.
We divide our discussion of the merits into three
segments corresponding to the petitioner's three principal claims.
1. The Double Jeopardy Claim. We review the SJC's
denial of the petitioner's double jeopardy claim under the
constraints of the AEDPA. Consequently, we may grant relief
thereunder only if the state court adjudication either "resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding," id. §
2254(d)(2).
The relevant provision for purposes of this appeal is
section 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000),
the Supreme Court fleshed out a petitioner's obligations under that
section and outlined the narrow circumstances in which federal
habeas courts are permitted to disturb state convictions. The
Court interpreted "contrary to" to mean "diametrically different"
or "mutually opposed." Id. at 405. Therefore, a state court
decision is "contrary to" established Supreme Court precedent if
the state court manages to "arrive[] at a conclusion opposite to
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that reached by [the Supreme] Court on a question of law" or
"decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts." Id. at 413.
As to the other facet of section 2254(d)(1), the Court
said that an "unreasonable application" of Supreme Court case law
occurs if "the state court identifies the correct governing legal
principle from th[e] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case." Id. This
type of scenario may emerge when a state court either "unreasonably
extends a legal principle . . . to a new context where it should
not apply or unreasonably refuses to extend that principle to a new
context where it should apply." Id. at 407. The Court emphasized,
however, that not every incorrect application of federal law
amounts to an unreasonable application of federal law. Id. at 410.
The difference is one of degree. See McCambridge v. Hall, 303 F.3d
24, 36 (1st Cir. 2002) (en banc) (requiring an "increment of
incorrectness" in the state court ruling that is "great enough to
make the decision unreasonable in the independent and objective
judgment of the federal court"). It follows, then, that a habeas
petitioner must do more than merely identify an incorrect result.
We assess the petitioner's challenge to the SJC's double
jeopardy ruling under this restrictive framework. The Double
Jeopardy Clause provides that no person shall "be subject for the
same offence to be twice put in jeopardy of life or limb." U.S.
-15-
Const. amend. V, cl. 2. This proviso affords protection in three
different types of situations:
It protects against a second prosecution for
the same offense after acquittal. It protects
against a second prosecution for the same
offense after conviction. And it protects
against multiple punishments for the same
offense.
United States v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir. 1990)
(quoting N. Carolina v. Pearce, 395 U.S. 711, 717 (1969)); accord
United States v. Morris, 99 F.3d 476, 478 (1st Cir. 1996); United
States v. Stoller, 78 F.3d 710, 714 (1st Cir. 1996).
Building on the second of these three safeguards, the
petitioner constructs the following hypothesis: (1) he pleaded
guilty to receiving stolen property and that plea ripened into a
conviction; (2) from and after the date of that conviction, double
jeopardy protections precluded the Commonwealth from indicting him
for a mutually exclusive crime (for that would constitute "the same
offense"); and (3) the crimes of receiving stolen property and
armed robbery, when involving the same objects, are mutually
exclusive. Hence, the Double Jeopardy Clause forbade the
Commonwealth from initiating the armed robbery prosecution.
The first element on which the petitioner's hypothesis
rests is unassailable: at least in these circumstances, a guilty
plea is itself a conviction. See Kercheval v. United States, 274
U.S. 220, 223 (1927). The SJC assumed, without deciding, the
validity of the third element. See Jackson, 717 N.E.2d at 1003 &
-16-
n.4 (suggesting that Massachusetts case law would deem the crimes
of receiving stolen property and armed robbery of the same property
to constitute a single offense).4 Since this is largely a question
of Massachusetts law, we too will assume arguendo that a defendant
cannot lawfully be convicted of both crimes. Thus, our inquiry
focuses on the second element of the petitioner's hypothesis.
Central to our analysis is a recognition that the
petitioner and the SJC have configured the double jeopardy issue
differently. The petitioner does not look beyond the fact of the
original conviction for receiving stolen property, treating the
vacation of that conviction as irrelevant to the double jeopardy
analysis. In his view, the Commonwealth was constitutionally
barred from soliciting the armed robbery indictment after it
obtained the original conviction for receiving stolen property; it
secured the armed robbery indictment while that conviction was
still on the books; and so, because the indictment was
4
Other courts have divided on whether a person may be
convicted of both robbery of certain property and receiving that
property. Compare, e.g., Heflin v. United States, 358 U.S. 415,
419-20 (1959) (holding, under federal criminal statutes, that a
defendant may not be punished for both armed bank robbery and
receiving stolen bank property), and Dove v. Peyton, 343 F.2d 210,
213-14 (4th Cir. 1965) (similar; applying Virginia law), with,
e.g., Ex parte Howard, 710 So. 2d 460, 463 (Ala. 1997) (holding
that Alabama law permits a prosecution for robbery following a
conviction for receiving stolen property), and State v. Sardeson,
437 N.W.2d 473, 480-81 (Neb. 1989) (similar; applying Nebraska
law).
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unconstitutional when contrived, the Commonwealth should not have
been permitted to pursue it.
The SJC used a wider-angled lens. It examined the
constitutionality of the second indictment in light of both the
prior conviction and the subsequent vacation of that conviction.
Gauging the constitutionality of the armed robbery indictment from
that perspective, "there [wa]s no longer a final adjudication of
guilt or innocence" on the receiving stolen property charge.
Jackson, 717 N.E.2d at 1003. Far from deeming the petitioner's
voluntary withdrawal of his guilty plea as irrelevant, the SJC
thought it was "[c]ritical to the disposition" of his double
jeopardy argument. Id. In short, the petitioner and the SJC were
arguing past each other, advocating parallel but materially
different analyses.
Given the unique facts of this case, that discrepancy is
problematic for the petitioner. On habeas review, the AEDPA
requires us to focus our attention on the state court's analysis.
The petitioner's obligation is not simply to offer a plausible
argument for the unconstitutionality of his conviction, but,
rather, to identify how the state court's analytical path strayed
beyond permissible bounds. See 28 U.S.C. § 2254(d)(1).
In this instance, the SJC relied primarily on the
decision in United States v. Scott, 437 U.S. 82 (1978). There, the
defendant sought and won dismissal of criminal charges. Id. at 84.
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After the government had appealed, he attempted to invoke double
jeopardy protections to forestall a subsequent trial. Id. The
Supreme Court rejected this tactic, holding that the government
could appeal the dismissal without triggering double jeopardy
concerns. Id. at 86-87. The court pointed out that the defendant
had opted to move for dismissal in the first place and stated that
"the Double Jeopardy Clause . . . does not relieve a defendant from
the consequences of his voluntary choice." Id. at 99.
The petitioner insists that Scott is inapposite. He
posits that its holding would apply only if he had moved to
withdraw his guilty plea for receiving stolen property and then
relied upon the Double Jeopardy Clause in an effort to preclude the
Commonwealth from retrying him on that same charge. The petitioner
sees this case as falling instead within a different precedential
orbit.
One of the cases comprising that orbit is Blackledge v.
Perry, 417 U.S. 21 (1974). There, while a convicted defendant's
appeal was pending, the government indicted him for a more serious
(yet mutually exclusive) crime. Id. at 22-23. Even though the
defendant pleaded guilty to this second charge, the Supreme Court
later approved habeas relief because it found the second
prosecution to be a vindictive response to the defendant's exercise
of his right to appeal, so that "[t]he very initiation of the
proceedings . . . operated to deny [the petitioner] due process of
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law." Id. at 30-31. The petitioner's second supporting authority
is Menna. As noted above, Menna prohibits a state from "haling a
defendant into court on a charge" when double jeopardy applies.
Menna, 423 U.S. at 62. The petitioner likens the armed robbery
indictment to a constructive "haling" that the Constitution
prohibited the Commonwealth from pursuing.
To be sure, all three of these cases offer plausible
analogies to the case that confronts us. The fact remains,
however, that none of them is sufficiently on point to dictate the
result. Scott differs materially from the instant case because
there, unlike here, the defendant's motion to vacate the original
conviction was granted before the state sought a second (allegedly
incompatible) indictment.5 See Scott, 437 U.S. at 84. Blackledge
is distinguishable because there, unlike here, the state's decision
to pursue a second indictment had the effect of punishing the
defendant for exercising his right to appeal. See Blackledge, 417
U.S. at 28. Menna is distinguishable because there, unlike here,
the second conviction occurred at a time when the first conviction
remained intact. See Menna, 423 U.S. at 61. Since there is no
clearly established Supreme Court precedent directly on point, the
SJC's rejection of the petitioner's double jeopardy claim does not
transgress the "contrary to" prong of 28 U.S.C. § 2254(d)(1). See
5
This sequencing also serves to distinguish other cases on
which the Commonwealth relies. See, e.g., Pearce, 395 U.S. at 719-
20; United States v. Ball, 163 U.S. 662, 671-72 (1896).
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Williams, 529 U.S. at 405-06; see also Ouber v. Guarino, 293 F.3d
19, 26 (1st Cir. 2002) ("Where a relevant but not factually
congruent precedent exists, the state court need only apply a test
consistent with the one announced by the Supreme Court in order to
avoid the toils of section 2254(d)(1)'s 'contrary to' clause.").
Given the idiosyncratic nature of this case and the
dearth of pertinent authority, we likewise conclude that the SJC's
reliance on Scott, rather than Blackledge or Menna, is not an
unreasonable application of Supreme Court case law. Reasonableness
depends on context. For the purposes of determining the
reasonableness of a state court's decision under section
2254(d)(1), we have declared that "if it is a close question
whether the state decision is in error, then the state decision
cannot be an unreasonable application." McCambridge, 303 F.3d at
36. This principle carries the day here. There is support in the
Supreme Court's case law for the competing positions of the
petitioner and the SJC, and nothing in Blackledge, Menna, or their
progeny is so compelling as to render the SJC's reliance on Scott
unreasonable.
The petitioner's fallback position bears a close
relationship to his main argument. He asserts that since the
Commonwealth was constitutionally barred from indicting him for
armed robbery when the grand jury acted, it could cure the
constitutional violation only by restoring the status quo ante
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(that is, by withdrawing the offending indictment). To support
this claim, the petitioner leans heavily upon a concurring opinion
authored by Justice Blackmun and a smattering of decisions from
federal courts of appeals. See, e.g., Morris v. Mathews, 475 U.S.
237, 255 (1986) (Blackmun, J., concurring); Murphy v. Puckett, 893
F.2d 94, 97 (5th Cir. 1990).
We need not dwell on these authorities because none of
them suffices to overcome the obstacle created by the AEDPA. The
reference in 28 U.S.C. § 2254(d)(1) to "clearly established Federal
law" encompasses only the holdings of the Supreme Court. See
Williams, 529 U.S. at 412 ("That statutory phrase refers to the
holdings, as opposed to the dicta, of th[e Supreme] Court's
decisions as of the time of the relevant state-court decision.");
Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (noting that
"factually similar cases from the lower federal courts may inform"
determinations under section 2254(d)(1), but only Supreme Court
holdings can provide the "seal of approval"). Generally speaking,
this formulation excludes concurring and dissenting opinions of
individual Justices as well as decisions of the courts of appeals.6
6
We hasten to add that authorities of this kind occasionally
may offer insight into a section 2254(d)(1) determination. We have
acknowledged, for example, that "[r]eference to such cases may be
especially helpful when the governing Supreme Court precedent
articulates a broad principle that applies to a wide variety of
factual patterns." Ouber, 293 F.3d at 26. That principle is
inapposite here inasmuch as the petitioner advances a proposition
that simply has not been embraced by the Supreme Court. The
petitioner's authorities are the proposition's originating sources,
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On a more fundamental level, the petitioner's argument
again fails to address the bona fides of the SJC's approach. Even
if the Commonwealth were barred from indicting the petitioner for
armed robbery before the conviction for receiving stolen property
was vacated, our decision must account for the petitioner's
voluntary motion to vacate that conviction — a step that opened the
door for the successful prosecution of the armed robbery charge.
The SJC ruled that the Commonwealth was not constitutionally barred
from pursuing the second indictment after the vacation of the first
conviction at the petitioner's behest. Jackson, 717 N.E.2d at
1003. For the reasons discussed above, that ruling — whether or
not precisely correct as a matter of constitutional law — neither
contravenes nor unreasonably applies Supreme Court precedent. On
this record, then, the Double Jeopardy Clause does not open an
avenue leading to habeas relief.
2. The Collateral Estoppel Claim. We turn next to the
petitioner's asseveration that principles of collateral estoppel
precluded a finding that he committed the armed robbery. Section
2254(d)(1) governs this asseveration as well, so our analysis of it
assumes the same contours as our discussion of the petitioner's
double jeopardy claim.
not clarifying or explanatory sources; as such they do not meet the
demands of section 2254(d)(1).
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Collateral estoppel "means simply that when a[n] issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443
(1970). The petitioner seeks to apply this tenet in support of the
claim that the conviction for receiving stolen property remained a
valid and final judgment notwithstanding its vacation (and, thus,
precluded the Commonwealth from proceeding on the armed robbery
charge). To this end, he insists that the conviction rested on the
factual predicate that he received stolen property; that its
vacation had no corrosive effect on these (previously established)
ultimate facts; and that, therefore, the indictment accusing him of
stealing that very property was founded on a legal impossibility.
The SJC rejected this theory, concluding that vacatur of the
conviction meant that "there now is no final determination of the
facts," so that "[c]ollateral estoppel does not apply." Jackson,
717 N.E.2d at 1004.
This conclusion is neither contrary to, nor an
unreasonable application of, Supreme Court precedent. After all,
it is hornbook law that "[a] vacated judgment has no preclusive
force either as a matter of collateral or direct estoppel or as a
matter of the law of the case." No East-West Highway Comm. v.
Chandler, 767 F.2d 21, 24 (1st Cir. 1985); accord U.S. Philips
Corp. v. Sears Roebuck & Co., 55 F.3d 592, 598 (Fed. Cir. 1995);
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Franklin Sav. Ass'n v. Office of Thrift Superv., 35 F.3d 1466, 1469
(10th Cir. 1994); 18A Charles Alan Wright et al., Federal Practice
and Procedure § 4432 (2002). The petitioner points to no decision
of the Supreme Court that casts doubt upon this hoary principle.
Thus, the AEDPA forbids us from disturbing the SJC's resolution of
the collateral estoppel claim.
3. The Due Process Claim. The petitioner also contends
that the vacation of his conviction for receiving stolen property
occurred at the expense of his right to procedural due process.
This abridgement occurred, the petitioner says, when the Cambridge
District Court "denied [him] a meaningful opportunity to be heard
on his motion [to vacate his conviction]." Appellant's Br. at 37.
The federal district court determined that this claim was not ripe
for habeas review since its merits had never been fully adjudicated
by the state courts. Jackson v. Coalter, 2002 WL 1760879, at *3.
We uphold this determination.
The AEDPA directs that habeas relief "shall not be
granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State." 28 U.S.C. §
2254(b)(1)(A). This exhaustion requirement codified preexisting
law. The Supreme Court has long maintained "that as a matter of
comity, federal courts should not consider a claim in a habeas
corpus petition until after the state courts have had an
opportunity to act." Rose v. Lundy, 455 U.S. 509, 515 (1982)
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(discussing Ex parte Royall, 117 U.S. 241, 251 (1886)). We have
interpreted this imperative as requiring a habeas petitioner to
"have presented both the factual and legal underpinnings of his
claim to the state courts in order for us to find it exhausted."
Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). Moreover,
we have made no bones about the fact that a failure to exhaust
ordinarily is "fatal" to the prosecution of a habeas petition.
Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988).
The petitioner concedes that, as a general rule,
exhaustion is required. He maintains, however, that he exhausted
this claim by invoking due process protections in the state courts.
This is partially true, but misleading. The issue that he now
seeks to advance was never properly exhausted. We explain briefly.
The petitioner mounted two legal campaigns that led him
to the SJC. The first foray culminated in the SJC's opinion
rejecting his double jeopardy and collateral estoppel claims. See
Jackson, 717 N.E.2d at 1003-04. Careful perscrutation of the
record indicates that the petitioner never adequately articulated
a due process claim at or before that stage of the proceedings.
The closest that he came was his plaint that the Cambridge District
Court allowed his "uncounseled" motion to vacate the original
conviction despite the fact that he "needed counsel to determine
whether to proceed with the motion at all."
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The SJC treated this plaint as a claim rooted in the
petitioner's Sixth Amendment right to counsel and concluded that no
violation of that right had occurred. Id. at 1005. This was a
reasonable reading of the petitioner's claim as then presented.7
More importantly, it did not suffice to exhaust the differently
grounded Fifth Amendment claim that the petitioner now seeks to
pursue. See Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997)
(holding that to satisfy the exhaustion requirement "a habeas
petitioner bears a heavy burden to show that he fairly and
recognizably presented to the state courts the factual and legal
bases of this federal claim"); Martens, 836 F.2d at 717 ("[T]he
exhaustion doctrine requires a habeas applicant to do more than
scatter some makeshift needles in the haystack of the state court
record. The ground relied upon must be presented face-up and
squarely; the federal question must be plainly defined.").
Following the SJC's rejection of his initial appeal, the
petitioner persevered in the state courts. During his second
campaign, he filed a motion to dismiss the armed robbery charge —
a motion that included a better-articulated due process claim. The
Suffolk Superior Court rejected that claim, but the SJC refused to
entertain an immediate appeal, holding that interlocutory review
was not available. Jackson v. Commonwealth, 770 N.E.2d 469, 471
7
Before us, the petitioner does not challenge the SJC's
resolution of his Sixth Amendment claim. Accordingly, we take no
view of that ruling.
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(Mass. 2002) (noting that the petitioner had "failed to demonstrate
that an appeal following conviction on the armed robbery charges
would not be adequate").8 Since the date of that ruling, the
petitioner has done nothing further to exhaust this due process
claim in the state courts. The state courts, therefore, have not
had an appropriate opportunity to adjudicate the claim.
Accordingly, we affirm the district court's determination that the
petitioner's procedural due process claim is unexhausted. See 28
U.S.C. § 2254(c) ("An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State, within
the meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
presented."); cf. Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820
(1st Cir. 1988) (requiring that "one who seeks to invoke the
federal habeas power must fairly present — or do his best to
present — the issue to the state's highest tribunal").
III. CONCLUSION
We need go no further. The petitioner, ably represented
before us by appointed counsel, has raised difficult issues. In
8
Adopting the rule in Abney v. United States, 431 U.S. 651,
660-62 (1977), Massachusetts affords interlocutory review of double
jeopardy claims. See Neverson v. Commonwealth, 546 N.E.2d 876, 877
(Mass. 1989) ("A criminal defendant who raises a double jeopardy
claim of substantial merit is entitled to review of the claim
before he is retried."). Most other issues must await the entry of
final judgment before a right of appellate review attaches. See
S.J.C. Rule 2:21(2); see also Glawson v. Commonwealth, 764 N.E.2d
869, 869-70 (Mass. 2002).
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the end, however, he cannot prevail. Although we agree that his
guilty plea to the armed robbery charge did not render his
application for habeas relief moot, we nonetheless conclude that
the application fails on the merits.
The district court's order of September 12, 2002 is
vacated. The district court's order of July 30, 2002 is
reinstated. The judgment in favor of the respondent is affirmed.
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Jackson v. Coalter
Court: Court of Appeals for the First Circuit
Date filed: 2003-07-28
Citations: 337 F.3d 74
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