United States Court of Appeals
For the First Circuit
No. 06-2490
RICHARD R. DESROSIER,
Petitioner, Appellant,
v.
LYNN BISSONNETTE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Dyk,* Circuit Judge.
Greg T. Schubert for appellant.
Annette C. Benedetto, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief,
for appellee.
September 14, 2007
*
Of the Federal Circuit, sitting by designation.
HOWARD, Circuit Judge. Petitioner Richard R. Desrosier
appeals from the district court's denial of his petition for a writ
of habeas corpus, claiming that he did not knowingly or
intelligently plead guilty to second-degree murder in Massachusetts
Superior Court because he had not been adequately informed of the
elements of the offense. We affirm.
Desrosier was indicted on one count each of first- and
second-degree murder for killing a young woman in Worcester in
April 1990. As related by the Commonwealth at the plea hearing,
the evidence against him included the testimony of an acquaintance
that a foursome consisting of himself, Desrosier, the victim, and
another, underage, girl had obtained vodka and beer on the day of
the killing and had gone up to the roof of a defunct railroad
terminal to drink it. At some point, Desrosier and the victim were
left alone. When the acquaintance returned, over Desrosier's
protest, he saw that the victim's prone and unclad body was
engulfed in flames. Desrosier then stated that he had killed the
victim because she had refused to have sex with him.
The acquaintance fled the scene but later returned with
the police, who found the victim's body on a lower section of the
roof of the terminal, nineteen feet below an opening on the level
where Desrosier had last been seen. The Commonwealth also
recounted the statements of a number of other people who had
interacted with Desrosier in the wake of the murder. Their
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proffered testimony was that Desrosier had blood on his clothing
and hands which he acknowledged was another person's blood, and
that Desrosier told them that he had just killed someone. The
police also retrieved clothing from Desrosier's home with stains
matching the victim's blood type.
At the plea hearing, Desrosier conceded that he had no
reason to doubt that the killing had occurred in the manner
described but explained that he had no independent recollection of
the events of that evening because he had "blacked out" from
drinking. Desrosier, who described himself at the time as a
twenty-three year-old high-school graduate, also testified that he
understood the difference between the sentences for first- and
second-degree murder with respect to parole.1 He further stated
that his lawyer had discussed with him the Commonwealth's evidence,
"the defenses [he] could raise and the other things [he] could do
if [he] had a trial," and "the pros and cons of having a trial, as
opposed to entering a plea of guilty." His counsel, with whom
Desrosier said he was satisfied, added that Desrosier had been
given copies of the police reports prepared as part of the murder
investigation as well as a transcript of the probable cause
hearing, which he had "reviewed . . . many times." The Superior
Court accepted Desrosier's plea to second-degree murder and
1
The difference is that there is no parole from a sentence for
first-degree murder. See Mass. Gen. Laws Ann. ch. 265, § 2 (2000).
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sentenced him to a mandatory term of life in prison.
Some five years later, Desrosier moved to withdraw his
plea, arguing, inter alia, that he had not been sufficiently
informed of the elements of first- or second-degree murder.2 A
different Superior Court justice from the one who had taken the
plea held an evidentiary hearing, at which Desrosier was
represented by different counsel. At this hearing, Desrosier
called as a witness his former defense attorney, who testified
that, prior to the entry of the plea, the two of them had "assessed
everything, and we discussed it," including the police and autopsy
reports, the probable cause hearing, the main witnesses, and
defense counsel's investigation. Desrosier did not testify.
The Superior Court granted the motion, ruling that
"because there is no record that the defendant was ever
specifically informed of the elements of murder in the first or
second degree, including the requisite level of intent needed to
commit such crimes, the defendant's plea was not freely and
understandingly made." Massachusetts v. Desrosier, No. 90-2097,
slip op. at 10 (Mass. Super. Ct. Nov. 7, 2000). Specifically, the
court found that the judge who took the plea "failed to discuss any
of the elements of the murder charges, including intent, in his
2
When Desrosier filed the motion, he was proceeding pro se and
asserted a number of different grounds for relief, including
ineffective assistance of counsel. This claim was withdrawn,
however, by Desrosier's counsel at the motion hearing.
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colloquy even after the defendant claimed he had a 'blackout.'"
Id. The court also concluded that Desrosier's statements at the
plea hearing were "not specific enough to demonstrate that [he] was
fully informed of the elements of the crime." Id.
The Commonwealth appealed this decision to the
Massachusetts Appeals Court, which reversed. Massachusetts v.
Desrosier, 778 N.E.2d 1 (Mass. App. Ct. 2002). While observing
that "it would have been preferable had the plea hearing judge
explained the elements of murder in the first and second degrees at
the plea hearing," the Appeals Court nevertheless concluded that
"the record demonstrates that the defendant did, in fact, plead
freely and understandingly." Id. at 6. The court noted that
the defendant heard a detailed recitation of the evidence
against him, and stated that he did not have any reason
to doubt the veracity of that evidence; he acknowledged
he admitted [the] killing . . . to numerous persons; [he]
affirmed he had discussed possible defenses with his
attorney; defense counsel testified he had discussed the
evidence with the defendant, and they had 'assessed
everything'; and there is no suggestion that the
defendant was not on notice of the charges contained in
the indictment.
Id. at 8. Citing specifically to Desrosier's statements at the
plea hearing, the Appeals Court reasoned that "as a matter of
common sense, a discussion of 'defenses' and the 'pros and cons of
having a trial' would not take place in isolation," but "almost
certainly would have referred to the elements of the crimes to
which the defenses would be advanced." Id. at 6-7. The court
ruled that, as such, the record demonstrated that Desrosiers had
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been advised of the elements of the offense as required by
Henderson v. Morgan, 426 U.S. 637 (1976). 778 N.E.2d at 5-6.
After the Massachusetts Supreme Judicial Court denied his
application for further appellate review, 782 N.E.2d 515 (Mass.
2003), Desrosier filed a petition for a writ of habeas corpus in
federal district court, claiming that the decision of the Appeals
Court amounted to an unreasonable application of Supreme Court
precedent under the Antiterrorism and Effective Death Penalty Act
of 1996, 28 U.S.C. § 2254(d) (2007) ("AEDPA"). The petition was
referred to a magistrate judge, id. § 636(b)(1)(B) (2007), who
recommended that it be denied. The magistrate judge determined
that the Appeals Court had not unreasonably applied Supreme Court
precedent when it held "that discussions between [Desrosier] and
his lawyer necessarily included advice concerning elements of the
crime with which [Desrosier] was charged," and that "although
reasonable minds could disagree as to the [Appeals Court's]
findings of fact, those findings are not unreasonable in light of
the record which was available to [it]" (footnote omitted).
Desrosier v. Bissonette, No. 03-40194, slip op. at 10-11, 12 (D.
Mass. Dec. 19, 2005).
The district court adopted the magistrate judge's report
and recommendation over Desrosier's objections. The court reasoned
that, because the elements of second-degree murder "are neither
complex nor esoteric . . . it is hardly unbridled conjecture to
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draw the inference that, in the course of assessing and discussing
'everything' about the case, [Desrosier] was made aware by counsel
that the Commonwealth had to prove he intended to cause the
victim's death." Desrosier v. Bissonette, No. 03-40194, slip op.
at 6, 7 (D. Mass. Sept. 19, 2006). (footnote omitted). Desrosier
then applied for, and was granted, a certificate of appealability
on the issues of whether the Appeals Court's decision involved an
unreasonable application of Supreme Court precedent or an
unreasonable determination of the facts. This appeal followed.
In considering an appeal from a denial of a petition for
habeas corpus, we review the district court’s legal conclusions de
novo. See, e.g., Furr v. Brady, 440 F.3d 34, 36-37 (1st Cir.
2006). Under AEDPA, a federal court cannot grant habeas relief
“with respect to any claim that was adjudicated on the merits in
State court proceedings” unless the state court decision (1) “was
contrary to, or involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court of the
United States” or (2) “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). We agree with the magistrate
judge and the district court that the Appeals Court's decision
suffers from neither of these infirmities.
"A guilty plea operates as a waiver of important rights,
and is valid only if done voluntarily, knowingly, and intelligently
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. . . . Where a defendant pleads guilty to a crime without having
been informed of the crime's elements, this standard is not met and
the plea is invalid." Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)
(citing Henderson, 426 U.S. at 647). As the Appeals Court noted,
this rule does not require the judge who took the plea to have
explained the elements of the offense to the defendant, provided
that the record adequately reflects that defense counsel did so.
Id. The record need not, however, contain defense counsel's
explicit affirmation to that effect. "[E]ven without such an
express representation, it may be appropriate to presume that in
most cases defense counsel routinely explain the nature of the
offense in sufficient detail to give the accused notice of what he
is being asked to admit." Henderson, 426 U.S. at 647.
Contrary to Desrosier's contention, the Appeals Court did
not unreasonably apply these federal constitutional rules for a
valid guilty plea. While the court did not invoke, by name, a
"presumption" that defense counsel had explained the elements of
second-degree murder to Desrosier, its reasoning was entirely
consistent with that aspect of Henderson. Based on Desrosier's
admissions at the plea hearing that he had discussed the "defenses"
and the "pros and cons of having a trial" with his former attorney,
as well as on the attorney's testimony at the motion hearing that
he and his client had "discussed" and "assessed everything," the
Appeals Court concluded that defense counsel had informed Desrosier
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of the elements of the charge of second-degree murder.3
Massachusetts v. Desrosier, 778 N.E.2d at 5-7. Given that the
Supreme Court has never required defense counsel to say outright
that he or she has discussed the elements of the crime with the
defendant in order for a constitutionally valid plea to result--
indeed, Henderson in applying the presumption holds to the
contrary--the Appeals Court did not unreasonably apply federal
law.4
3
Lending further support to the Appeals Court's decision, as the
district court noted, is the fact that the elements of second-
degree murder are not difficult to explain or understand. See,
e.g., United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995)
("the method for determining the defendant's understanding of the
charge will vary from case to case depending on the complexity of
the charges, the capacity of the defendant, and the attendant
circumstances").
4
Relying on North Carolina v. Alford, 400 U.S. 25 (1970), Desrosier
argues that, because he did not expressly admit to acts
constituting second-degree murder but merely stated that he had no
reason to doubt the Commonwealth's version of facts, his counsel
was required to explain the elements of both first- and second-
degree murder to him. We have our doubts as to Desroiser's
premise, see, e.g., United States v. Tunning, 69 F.3d 107, 111 (6th
Cir. 1995) (holding that Alford applies only when the defendant
pleads guilty while asserting his innocence, not merely while
refusing to admit the acts constituting the crime), but, in any
event, we disagree with his conclusion. Though the Massachusetts
Supreme Judicial Court has arguably read Alford to require that a
defendant understand the elements of both the crime with which he
was charged and the crime to which he pleaded guilty, Massachusetts
v. Nikas, 727 N.E.2d 1166, 1169-70 (Mass. 2000), we do not read
Alford so rigidly, and Desrosier does not cite any federal court
decision, let alone any Supreme Court decision, that does. Cf.
Allard v. Helgemoe, 572 F.2d 1, 2 (1st Cir. 1978) ("Alford holds
that a court may constitutionally accept a plea of guilty from a
defendant who continues to protest his innocence"). By rejecting
Desrosier's Alford argument, then, the Appeals Court did not
unreasonably apply federal law.
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Though Desrosier does not argue that the Appeals Court's
decision was based on an unreasonable determination of the facts,
that idea permeated both his brief and oral argument in this case.
In particular, he objects to what he sees as the Appeals Court's
essentially discarding the motion court's finding that his prior
attorney did not, in fact, inform him of the elements of second-
degree murder. We see things differently. The Appeals Court
simply disagreed with the motion court about the legal significance
of the fact that defense counsel did not expressly state that he
recited the elements to Desrosier. In any event, federal courts
cannot grant habeas relief based on mere disagreements with how a
state court conducts its appellate review. In other words, "state-
court judgments must be upheld unless, after the closest
examination of the state-court judgment, a federal court is firmly
convinced that a federal constitutional right has been violated."
Williams v. Taylor, 529 U.S. 362, 388 (2000) (plurality opinion).
We are unconvinced that anything approaching the unconstitutional
happened here.
Furthermore, to the extent that the Appeals Court did
resolve any facts in overturning the Superior Court's decision,
Desrosier has the burden to show, by clear and convincing evidence,
that those factual determinations were unreasonable. 28 U.S.C. §
2254(e)(1). He has not done so. Indeed, he has never come forward
with any evidence to contradict his former attorney's version of
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events or to negate the inference that they did in fact discuss the
elements of second-degree murder. It is not enough for him simply
to argue for the contrary inference at this point. The district
court properly dismissed Desrosier's petition.
Affirmed.
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