M. PAGE KELLEY, Magistrate Judge.
Bismarck Gutierrez ("Petitioner" or "Gutierrez") petitions for a writ of habeas corpus (#1) under 28 U.S.C. § 2254. Following a jury trial, Gutierrez was convicted of two counts of possession of a firearm without a license, one count of possession of ammunition without a license, one count of assault and battery causing serious bodily injury, and two counts of assault and battery. (#32 at 2.) Petitioner challenges his conviction by arguing that the statute under which he was convicted, Mass. Gen. Laws ch. 269, § 10(h) violates his Second Amendment right to bear arms as well as his right to due process under the Fifth and Fourteenth Amendments. Respondent counters that Petitioner's Second Amendment argument is barred because of procedural default, and even if it were not procedurally barred it would still be without merit. Respondent also argues that Petitioner's due process arguments were not sufficiently exhausted before the state court and are therefore barred. Further, Respondent argues that even when examining the merits of Petitioner's due process argument, his claim must be denied.
After his conviction, Petitioner appealed to the Massachusetts Court of Appeals (MAC). The MAC denied Petitioner's motion on October 25, 2012. Commonwealth v. Gutierrez, 82 Mass.App.Ct. 1118 (2012). Petitioner's Application for Leave to Obtain Further Appellate Review (ALOFAR) was denied by the Massachusetts Supreme Judicial Court (SJC) on December 19, 2012, Commonwealth v. Gutierrez, 464 Mass. 1101 (2012), and the United States Supreme Court denied certiorari on May 13, 2013. Commonwealth v. Gutierrez, 133 S.Ct. 2357 (2013).
The MAC did not make findings of fact, and therefore the following facts are taken from the state court briefs and trial transcripts. Petitioner and Kristen Aheron ("Aheron") were dating and living at a Motel 6 in Danvers on the night of the underlying assault. (S.A. pp. 20, 132, 867-68.) Prior to that night, Aheron observed the defendant handling what appeared to be two handguns on several occasions. (S.A. pp. 20, 891-93, 897, 899-903.) The night of February 11, 2009, Petitioner, Aheron, and two other individuals went to King Arthur's Lounge in Chelsea, MA. (S.A. pp. 135, 907.) Aheron and Petitioner got into a verbal and physical argument at the Lounge, and subsequently the foursome got into a car to return to the Motel 6. (S.A. pp. 137, 930-33, 935.) Aheron and Petitioner were in the backseat when Petitioner hit Aheron ten or more times in the head and face. (S.A. pp. 21, 935-38.) Once they got back to the motel, Aheron saw that she was bleeding from the nose, and was bruised around the eyes. (S.A. pp. 138, 959.) The defendant again began beating Aheron, chocking her and hitting her for forty-five minutes to an hour. (S.A. pp. 139, 962-66, 968-72.) Petitioner fell asleep. (S.A. p. 1001.) Aheron called her mother, who picked her up and took her to the hospital. (S.A. pp. 21, 1001, 1005.) Police arrested Petitioner the next morning around 7:00 a.m. (S.A. p. 23.) When police returned to search the motel room pursuant to a warrant, they discovered two handguns and miscellaneous rounds of ammunition. (S.A. pp. 24, 1153-67) At trial, Aheron recognized one of the guns as one she previously saw Petitioner cleaning. (S.A. pp. 24, 1025-28, 1038.)
Applications for a writ of habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. Eligibility for relief under AEDPA is "intentionally difficult to meet." Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376 (2015) (per curiam) (internal quotation marks and citation omitted); see also, Powell v. Tompkins, 783 F.3d 332, 336 (1st Cir. 2015) ("Securing relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is an onerous task."). To obtain a writ of habeas corpus under § 2254, a petitioner must show that the state court proceeding "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly establish 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 the light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2).
For subsection (d)(1) challenges, the starting point "is to identify the `clearly established Federal law, as determined by the Supreme Court of the United States' that governs the habeas petitioner's claim." Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 1449 (2013) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Carey v. Musladin, 549 U.S. 70, 74 (2006). A decision represents an unreasonable application of clearly established federal law if the state court identifies the correct governing principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). An "unreasonable application" requires "some increment of incorrectness beyond error. . . The increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (internal quotations and citation omitted). The Supreme Court has explained that
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks and citations omitted) (footnote omitted). Furthermore,
Id. at 776 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (second and third alterations in original). See also, Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (where the federal standard is general, "a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard"). This standard is difficult to meet because "the purpose of AEDPA is to ensure that federal habeas relief functions as a `guard against extreme malfunctions in the state criminal justice systems,' and not as a means of error correction." Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 43 (2011) (citing Harrington v. Richter, 562 U.S. 86 (2011) (further citations omitted).
Under subsection (d)(2), state-court factual findings are "entitled to a presumption of correctness." Yeboah-Sefah v. Ficco, 556 F.3d 53, 81 (1st Cir. 2009) (citing Demosthenes v. Baal, 495 U.S. 731, 735 (1990)). A petitioner must rebut the state court factual findings by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Companonio v. O'Brien, 672 F.3d 101, 109 (1st Cir. 2012).
Petitioner argues that the Second Amendment's guarantee that "the right of the people to keep and bear Arms shall not be infringed" is violated by Mass. Gen. Laws ch. 269 § 10(h). The statute requires anyone possessing a firearm, rifle, shotgun or ammunition to have been issued a firearm identification card (FID card). ("Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished by imprisonment in a jail or house of correction for not more than 2 years or by a fine of not more than $500.").
Addressing these constitutional arguments, the MAC stated that "[t]he defendant's argument concerning the constitutionality of firearms licensure in Massachusetts, raised for the first time on appeal, is foreclosed by Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011)." Gutierrez, 82 Mass.App.Ct. 1118 n.3.
Contrary to Petitioner's contention, the MAC was correct in its interpretation when it noted that the Supreme Court in Heller did not find that the Second Amendment provided an unlimited right to possession of firearms or ammunition. While the Second Amendment states "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed," in Heller, the Supreme Court noted that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Heller, 554 U.S. at 626. By way of example, the Court cited prohibitions on carrying concealed weapons, possession of weapons by the mentally ill, and the carrying of weapons in sensitive places. Id. "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as `prohibitions on the possession of firearms by felons and the mentally ill,' `laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' We repeat those assurances here." McDonald v. City of Chicago, Ill. 561 U.S. 742, 786 (2010) (quoting Heller, 544 U.S. at 626). The Heller Court "recognized that `the right secured by the Second Amendment is not unlimited' and listed examples of `presumptively lawful regulatory measures,' but declined to `clarify the entire field' of Second Amendment jurisprudence." Woollard v. Gallagher, 712 F.3d 865, 874 (4th Cir. 2013) (quoting Heller, 554 U.S. at 626-27.)
The Heller decision does not impose a blanket prohibition on the regulation of firearms. Instead, the Court's holding in Heller was much more limited. "[T]he District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home inoperable for the purpose of immediate self-defense." Heller, 554 U.S. at 635; see also McDonald, 561 U.S. at 749-750 ("Two years ago, in District of Columbia v. Heller, 554 U.S. 570, (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned possession of handguns in the home.").
Petitioner has not shown that the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or that the state court decided a case differently on a set of materially indistinguishable facts. Williams, 529 U.S. at 412-413. Not only did the MAC correctly identify the correct legal principle, it applied that principle correctly. Petitioner's claim under the Second Amendment must be denied.
Petitioner also claims that his conviction for having caused "serious bodily injury" was both an unreasonable determination of the facts and a violation of his due process rights. In his petition, Petitioner wrote,
(#1 at 5.) Petitioner claims that the injuries to Aheron's nose were preexisting and therefore "whatever harm the Appeals Court may have found that the petitioner caused K.A., such did not amount to `serious' bodily injury because such did not cause the fracture that caused the breathing difficulties (which apparently was the `serious' bodily injury that the Appeals Court found)." (#35 at 8.) Petitioner's argument appears to be both a sufficiency of the evidence argument as well as a challenge to the Appellate court's factual findings.
Mass. Gen. Laws ch. 265 § 13A defines "serious injury" as "bodily injury that results in a permanent disfigurement, loss or impairment of bodily function, limb or organ, or substantial risk of death." The indictment alleged that the defendant caused serious bodily injury by fracturing Ahern's nasal bones. As found by the MAC:
Gutierrez, 82 Mass. App. Ct. at 1118.
Sufficiency of the evidence claims fall under the Fourteenth Amendment's Due Process clause. Due process "requires that `no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.' More succinctly, the relevant test we take from Jackson, is `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" O'Laughlin v. O'Brien, 568 F.3d 287, 299 (1st Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 316 and 319 (1979) (internal citation omitted). Sufficiency claims are "evaluated under § 2254 (d)(1) and the court looks to `whether the state court decision constitutes an unreasonable application of clearly established Supreme Court case law.'" Id. at 298 (quoting Hurtado v. Tucker, 245 F.3d 7, 15 (1st Cir. 2001) (further citations omitted). "[W]hen evaluating a claim of evidentiary insufficiency, `the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Housen v. Gelb, 744 F.3d 221, 222 (1st Cir. 2014). Where the record supports conflicting inferences, the court presumes "that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326.
The MAC applied Supreme Court precedent correctly to Petitioner's case. The MAC stated that the evidence must be viewed in the light most favorable to the prosecution, and found to the extent there are conflicting inferences "it is for the jury to determine where the truth lies." Gutierrez, 82 Mass. App. Ct. at 1118 (internal citations omitted). While Petitioner may disagree that the injuries Aheron suffered were sufficiently severe to be considered "serious bodily injury," he has nevertheless failed to prove that the MAC's decision was unreasonable. See, Housen, 744 F.3d at 226 ("`a habeas court may not freely reweigh competing inferences but must accept those reasonable inferences that are most compatible with the jury's verdict.'") (citing Magraw v. Roden, 743 F.3d 1, 7 (1st Cir. 2014)).
"A state court's findings on factual issues `shall be presumed to be correct' and the petitioner bears the burden of disproving factual findings by `clear and convincing evidence.'" McCambridge, 303 F.3d at 34-35 (quoting 28 U.S.C. § 2254(e)(1)). Petitioner has not proven by clear and convincing evidence that the MAC's factual findings were unreasonable. The MAC noted that Petitioner repeatedly struck Aheron in the face, that her face and neck were abraded and bruised, and that the contemporaneous medical records described trauma and comminuted fracture of the nasal bones. See Gutierrez, 82 Mass. App. Ct. at 1118. Petitioner has provided no evidence that these factual findings were incorrect, let alone provided the "clear and convincing" evidence necessary under 28 U.S.C. § 2254(e)(1).
For the above reasons, I RECOMMEND that (1) the petitioner's motions under 28 U.S.C. §2254 to Vacate, Set Aside, or Correct Sentence by a Person in State Custody (#1) be DENIED, and (2) Final Judgment enter DISMISSING the action.
The parties are hereby advised that any party who objects to this recommendation must file a specific written objection 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 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), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603(1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).