Filed: Dec. 07, 2011
Latest Update: Feb. 22, 2020
Summary: Circuit Judges.Kenneth Ware on brief pro se.possession with intent to distribute a class B substance.Mass. App.court is bound by that interpretation of the state statute. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975));conviction as an armed career criminal.process claim fails.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1149
KENNETH WARE,
Petitioner, Appellant,
v.
THOMAS E. DICKHAUT,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
_____________________
Before
Boudin, Howard and Thompson,
Circuit Judges.
Kenneth Ware on brief pro se.
Amy L. Karangekis, Assistant Attorney General, and Martha
Coakley, Attorney General, on brief for appellee.
December 7, 2011
Per Curiam. We have reviewed the record and the parties'
submissions, and we affirm. We bypass the question of whether the
petitioner, Kenneth Ware ("Ware"), exhausted his federal due
process claim in the state courts, see 28 U.S.C. § 2254(b)(2), and
we affirm the denial of his claim on the merits.
Ware argues that there was insufficient evidence to
support his conviction under the Massachusetts Armed Career
Criminal statute. See Mass. Gen. Laws Ch. 269, § 10G(b). He
contends that his prior drug conviction did not qualify as a
predicate offense because it was not a "serious drug felony" as
defined in Mass. Gen. Laws ch. 269, § 10G(e). Subsection 10G(e)
defines a "serious drug felony" as "an offense under chapter 94C
involving the manufacture, distribution or possession with intent
to manufacture or distribute a controlled substance [] for which a
maximum term of ten years or more is prescribed by law." Ware was
previously convicted under Mass. Gen. Laws ch. 94C, §32A(a) of
possession with intent to distribute a class B substance. But he
points to the fact that in that prior case, he was prosecuted in
the state district court, where the maximum sentence he faced was
only two and one-half years. See Mass. Gen. Laws ch. 218, § 27.
If he had been prosecuted in the superior court, however, he would
have faced a potential maximum sentence of ten years. See Mass.
Gen. Laws ch. 94C, § 32A(a).
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The Massachusetts Appeals Court, interpreting Mass. Gen.
Laws ch. 269, § 10G(e), concluded that under the state statute,
Ware's previous conviction under Mass. Gen. Laws ch. 94C, § 32A(a)
does qualify as a "serious drug felony" within the meaning of the
state armed career criminal act. See Commonwealth v. Ware, 75
Mass. App. Ct. 220, 223-25,
913 N.E.2d 869, 872-74 (2009). This
court is bound by that interpretation of the state statute. See
Bradshaw v. Richey,
546 U.S. 74, 76 (2005) ("a state court's
interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting
in habeas corpus") (citing Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Mullaney v. Wilbur,
421 U.S. 684, 691 (1975)); see also
Pulley v. Harris,
465 U.S. 37, 41 (1984) ("A federal court may not
issue the writ [of habeas corpus] on the basis of a perceived error
of state law."). Given that Ware's prior drug dealing conviction
did qualify as a predicate offense under the state armed career
criminal statute – a conclusion which the federal courts must
respect – the evidence clearly was sufficient to support Ware's
conviction as an armed career criminal. Thus, his federal due
process claim fails.
Affirmed. See 1st Cir. R. 27.0(c).
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