INDIRA TALWANI, District Judge.
After considering the Magistrate Judge's August 28, 2017
IT IS SO ORDERED.
Michael Ronald Brown (Brown or "the petitioner"), proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for unlawfully distributing controlled substances. He advances several arguments in support of his petition but his principal claim is that the Massachusetts Supreme Judicial Court (SJC) violated the double jeopardy clause when it affirmed his conviction for a charge Brown contends he was acquitted of by the trial judge. After careful consideration of the record in this case, and for the reasons set forth below, the court finds that the petitioner is not entitled to the relief requested and recommends that the petition be DENIED.
Brown, a physician, was indicted in Massachusetts Superior Court on multiple charges of violating M.G.L. c. 94C, §§ 32A(a) and 32B(a), for illegally "distributing or dispensing" Class B and Class C controlled substances.
For present purposes, the principal issue arising from Brown's jury trial revolved around the instructions to the jury on the "distributing or dispensing" charges. The material facts regarding both trials, summarized by the SJC, are as follows:
Commonwealth v. Brown, 456 Mass. 708, 710-711 (2010) (internal footnotes omitted) (Brown I).
Brown applied for direct appellate review to the SJC, raising among other things the issue of whether he could be convicted of dispensing a controlled substance when the ultimate user of that substance was an unlawful possessor.
Brown then appealed to the Massachusetts Appeals Court. The Appeals Court affirmed the trial court's rulings (with one judge dissenting on the issue), holding that dispensing a controlled substance did not require the ultimate users to be lawful possessors of the substances. Commonwealth v. Brown, 74 Mass.App.Ct. 75, 83-84 (Mass. App. Ct. 2009).
On July 17, 2009, the SJC granted Brown's request for further appellate review. (S.A. 14). On May 11, 2010, the SJC affirmed Brown's convictions after engaging in a detailed analysis of M.G.L. c. 94C and its various sections. Commonwealth v. Brown, 456 Mass. 708 (2010). The SJC concluded among other things that a physician who engages in the conduct Brown engaged in may be prosecuted for either issuing an invalid prescription, in violation of section 19, or for unlawful distribution, in violation of sections 32-32H. Brown, 456 Mass. at 724-725. Here, because the indictment charged Brown with violating section 32 rather than section 19, the indictment, properly understood, alleged unlawful distribution.
Consequently, as the SJC noted, the trial court's jury instruction, although articulated as one for unlawful dispensing, in reality recited the elements for unlawful distribution. Id. at 725-726. The SJC found this revelation to be of no legal consequence, however. The SJC reasoned that Brown was not prejudiced in any way because the jury instruction the court gave matched the elements of the statute and it therefore made no difference to the jury "which verb in the indictment their attention was drawn. Considering only the elements necessary for the crime of unlawful distribution, they convicted the defendant." Id. at 726. As to the conviction on the indictment charging "distribute or dispense" rendered in the jury-waived trial, the SJC found no error and affirmed that conviction. Id. Brown filed a Petition for Rehearing to the SJC but the SJC denied it, on June 30, 2010.
On June 29, 2011, Brown filed his first habeas petition in this court. The petition set forth six separate grounds for relief, including among them the claims raised in the present petition, but the court dismissed it for failure to exhaust state court remedies. Id.
Consequently, on March 19, 2012, Brown moved in the superior court for release from unlawful restraint pursuant to Mass. R. Crim. P. 30(a). (S.A. 39). On March 21, 2012, the superior court denied the motion without a hearing. (Id.). Brown appealed to the Appeals Court and the appeal was subsequently transferred from the Appeals Court to the SJC sua sponte, on April 26, 2012. (S.A. 57-58). On September 25, 2013, the SJC affirmed the order denying the petitioner's Rule 30 motion, and found that its prior decision in Brown I did not violate the petitioner's constitutional rights. Commonwealth v. Brown, 466 Mass. 1007, 1010 (2013) (Brown II).
On September 22, 2014, the petitioner filed the instant petition, presenting the following four issues, framed as questions:
Re-paraphrasing, the Court reads this question to contend that the trial court acquitted the petitioner of the charge of unlawful distribution, and the SJC therefore violated the Fifth Amendment's double jeopardy clause when it subsequently affirmed the petitioner's conviction on that ground.
The Court interprets this question to allege that, because the petitioner had no reason at the time of trial to believe that his conviction was one for unlawful distribution, the SJC's subsequent affirmance on that ground was unexpected and effectively deprived him of the right to appeal the conviction.
The Court interprets this question to argue that the petitioner cannot be punished for unlawful drug possession because possession is a lesser offense included within the crime of unlawful distribution.
The Court interprets this question to allege a violation of the Ex Post Facto Clause of the Constitution.
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "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"; or (2) "resulted in a decision that 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 39 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "[C]learly established law signifies the holdings, as opposed to the dicta, of [the United States Supreme] Court's decision." Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting Williams v. Taylor, 529 U.S. at 412; internal quotations omitted).
A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06. A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003). "The state court's application must have been `objectively unreasonable.'" Id. at 520-521; see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-638 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 102 (2011). This is "the only question that matters under § 2254(d)(1)." Id. Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 102-103 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013).
Brown contends that he was acquitted of the charge of unlawful distribution when the judge instructed the jury to ignore distribution and consider only dispensing, and the SJC therefore violated the Fifth Amendment's double jeopardy clause when it affirmed his conviction for distribution. The double jeopardy clause guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause extends to state prosecutions through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). The double jeopardy clause "protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices of BMC v. Lydon, 466 U.S. 294, 306-07 (1984). Brown invokes the first of these principles here.
The petitioner is not entitled to habeas relief on this claim because there is no clearly established Supreme Court precedent holding that an instruction to a jury to ignore a particular theory of liability per se amounts to an acquittal of the offense on that basis. Brown suggests without quite explicitly arguing that the Supreme Court addressed this issue in Price v. Vincent, 538 U.S. 634 (2003), but he is wrong. As Brown notes, the Supreme Court in Price did state that "an instruction to the jury that a charge or element of the charge has been dismissed by the Judge" might support a finding of acquittal, but he takes that statement out of context. Price v. Vincent, 538 U.S. at 642. In context, the Supreme Court was merely recounting statements Michigan's Supreme Court had made below when it addressed the issue, but the Supreme Court itself did
No party has offered any other controlling precedent on this issue, presumably because there is none, and this court also has not been able to identify any controlling Supreme Court precedent directly on point. Accordingly, Brown's claim fails. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (holding that habeas relief was not available where there were no Supreme Court holdings to support petitioner's claim).
Brown contends that, assuming the trial court acquitted him of the charge of unlawful distribution by virtue of its jury instruction, the SJC unlawfully "resurrected" the charge when it affirmed his conviction, and thus effectively deprived him of the right to appeal his conviction for unlawful distribution.
To the extent this argument rests on the premise that the trial court never instructed the jury on a theory of unlawful distribution, this court agrees with the SJC that the trial court did in fact so instruct the jury, and the argument therefore fails for the reasons noted above. More fundamentally, the claim fails because Brown has no federal constitutional right to appeal a state court conviction. United States v. MacCollum, 426 U.S. 317, 323 (1976) ("The Due Process Clause of the Fifth Amendment does not establish any right to an appeal"); Griffin v. Illinois, 351 U.S. 12, 18 (1956) ("a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all"). Rather, Brown's appellate rights are creations of state law, and errors of state law do not provide a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions."). Thus, there is no basis for habeas relief on this ground.
Brown argues that his convictions for both unlawful drug distribution and unlawful drug possession "amount[] to multiple punishments for the same crime" because unlawful possession is a lesser crime included within the offense of unlawful distribution. The SJC summarily dismissed this argument in Brown II. After dealing with other claims the petitioner had raised there, the SJC noted that Brown's conviction for possession was simply placed "on file," and it observed that Brown had never raised any issue relating to this claim in his direct appeal. Brown II at 1009 n.2. In declining to consider the issue further, it is apparent to this court that the SJC considered Brown's claim to be procedurally defaulted.
The SJC's treatment of this claim effectively disposes of the argument on habeas review because this court cannot review state court decisions that rest on adequate and independent state law grounds, and a state court conclusion that a claim has been procedurally defaulted is one such adequate and independent statelaw ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); see also Lucien v. Spencer, No. 07-11338-MLW, 2015 WL 5824726, at *22 (D. Mass. September 30, 2015) (federal court did not have authority to review claim where SJC found it had been procedurally defaulted for failure to have been raised on appeal; SJC's finding was an independent and adequate state ground); Lykus v. Commonwealth, 432 Mass. 160, 163 (2000) (a defendant who fails to bring his claim to the attention of the reviewing court at the earliest possible time waives that claim).
In cases where the adequate-and-independent-ground rule applies, "federal habeas review of the claim[] is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The petitioner has not explained his failure to raise this claim on direct appeal and therefore has not established cause and prejudice. The petitioner also has not shown that he has suffered a miscarriage of justice, which "is a narrow exception to the cause-and-prejudice imperative, seldom to be used, and explicitly tied to a showing of actual innocence." Burks v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995). The petitioner has not argued that he is actually innocent and the fact that the evidence against the petitioner at trial was strong suggests that an actual innocence claim would be unlikely to succeed.
Moreover, because Brown's conviction for possession was simply placed "on file" pursuant to Massachusetts state court practice, no sentence was imposed, and the conviction therefore did not for habeas purposes become a state law judgment pursuant to which the petitioner is in custody. See Seales v. Thompson, Civil No. 13-11483-LTS, 2015 WL 3795799, at *9 (D. Mass. June 18, 2015); 28 U.S.C. § 2254(a) (permitting federal courts to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . .") (emphasis added). Accordingly, the claim fails on that ground as well.
Finally, Brown appears to argue that the statute he was convicted of violating is ambiguous in terms of what conduct it criminalizes, and thus violates the Ex Post Facto Clause of the U.S. Constitution. The Ex Post Facto Clause was designed to ensure that individuals have fair warning of the applicable laws. Peugh v. U.S., 133 S.Ct. 2072, 2085 (2013). To violate the Clause, a law must be retrospective and must "alter[] the definition of criminal conduct or increas[e] the punishment for [a] crime" after it has been committed. Lynce v. Mathis, 519 U.S. 433, 441 (1997). A judicial enlargement of a statute, on the other hand, violates ex post facto principles only if the court's interpretation of the statute is "unexpected and indefensible." See Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). Presumably, Brown would contend that the SJC judicially enlarged the statute when it affirmed his conviction for unlawful distribution.
Brown is not entitled to relief on this claim because the SJC's interpretation of M.G.L. c. 94C was neither unexpected nor indefensible. The statute unquestionably covers the conduct Brown engaged in. More particularly, the statute makes it a crime for "[a]ny person [to] knowingly or intentionally . . . distribute[] . . . a controlled substance" for an illicit purpose. M.G.L. 94C §§ 32A & 32B. The facts at trial were sufficient to show that Brown knowingly and intentionally prescribed opiates to individuals who either tested positive for illegal drugs or who tested negative because they were not taking the opiates previously prescribed. The statute clearly encompasses such conduct. The SJC did not reinterpret the statute in a way such that the petitioner did not have fair warning of the charges against him. Rather, all the SJC did was to clarify that what Brown did amounted to distribution rather than dispensing. The SJC did not make conduct criminal that otherwise, on a plain reading of the statute, would not have been understood to be criminal. Bouie, 415 F.3d at 355. As such, habeas relief is not warranted.
For the reasons stated above, I respectfully recommend that the petitioner's habeas corpus petition be DENIED. The parties are hereby advised that under the provisions of Federal Rule of Civil Procedure 72(b), any party who objects to this recommendation must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Secretary of Health and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140 (1985).
