Gunter v. Maloney

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

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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

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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

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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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