Simpson v. Matesanz

• Decision Date: 08 April 1999
• Docket Number: No. 98-2343,98-2343
• Citation: 175 F.3d 200
• Parties: William H. SIMPSON, Petitioner, Appellee, v. James MATESANZ, Respondent, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 200

175 F.3d 200

William H. SIMPSON, Petitioner, Appellee, v. James MATESANZ, Respondent, Appellant.

No. 98-2343.

United States Court of Appeals,

First Circuit.

Heard April 8, 1999.

Decided May 4, 1999.

Susanne G. Levsen, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief, for appellant.

Dana A. Curhan for appellee.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

William H. Simpson was convicted in Massachusetts state court in 1974 of the murder of Thomas Morris, who was stabbed to death by Simpson's associate while Simpson beat Morris with a baseball bat and hammer. Simpson is serving a life sentence without parole.

At Simpson's trial, the trial judge instructed the jury, in accord with long-standing tradition, that absence of reasonable doubt meant the jurors must be sure to a "moral certainty." The judge defined moral certainty as the same degree of certainty jurors would want in making decisions of importance in their own lives. The judge also said that if the jurors had any serious unanswered questions about the defendant's guilt, they must acquit. Massachusetts courts had employed moral certainty instructions since they were approved in a murder case of much notoriety more than a century ago. See Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850).

As times change, the meaning ascribed to particular words changes. In 1990, in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court found that instructions equating reasonable doubt with "substantial doubt" or "grave uncertainty," when coupled with a reference to moral certainty, could have impermissibly lowered the government's burden of proof. See id. at 40-41, 111 S.Ct. 328. In 1994, in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Supreme Court noted that in 1850 "moral certainty meant a state of subjective certitude" but that more modern usage might lead a jury to "understand the phrase to mean something less than the very high level of probability required by the Constitution in criminal cases." Id. at 12, 14, 114 S.Ct. 1239. The court also held that the moral certainty phrase, if standing alone, was improper, but if put in adequate context with other instructions was not constitutionally improper. See id. at 15-16, 114 S.Ct. 1239. After these decisions came a series of attacks on Cage /Victor jury instruction errors in earlier state convictions by way of habeas corpus petitions in the federal courts.

Simpson brought exactly such an attack by petition for habeas corpus in federal court in 1997, although he had not challenged the instructions on those grounds at trial or raised those arguments on direct appeal of his conviction. In 1988, Simpson finally did raise challenges to the reasonable doubt jury instructions on two new trial motions in the state court, which were denied on waiver grounds. In 1990, the highest court of Massachusetts, the Supreme Judicial Court ("SJC"), denied review of his claims for post-conviction relief on the ground that his claims were neither new nor substantial. See Commonwealth v. Simpson, No. 90-274 (SJC for Suffolk County, Oct. 15, 1990).

The federal district court bypassed Simpson's procedural default in not raising his challenges at trial or on appeal by concluding that "procedural default ... cannot be inferred" from the SJC's denial and by finding that the state had created an exception to its contemporaneous objection rule when reasonable doubt instructions were involved. Simpson, 29 F.Supp.2d at 15-16. The district court thus reached the merits of the habeas question. On the merits, the district court found that the standards for issuance of habeas corpus had been met and granted the petition.

We reverse, holding that the state court's denial of review based on Simpson's procedural waiver constitutes an independent and adequate state ground and that Simpson has not excused his default by showing cause and prejudice for his waiver or by establishing his actual innocence. As such, a federal court is precluded from reaching the merits of his claims and it was error to grant the petition.

I

We take the facts largely from the SJC decision affirming Simpson's conviction. See Commonwealth v. Simpson, 370 Mass. 119, 345 N.E.2d 899 (1976). On the morning of March 17, 1974, Simpson and his associate, Wardell Washington, broke into an apartment in Worcester, Massachusetts. They robbed the occupant, Thomas Morris, of approximately twenty-eight dollars, then left him beaten and stabbed to death. Simpson and Washington returned to Washington's apartment (which was located in the same building), changed their clothes, and--after concocting a story designed to divert attention from themselves--notified the police of the crime. Two women who shared Washington's apartment with Washington and Simpson testified about inculpatory conversations between Washington and Simpson as they planned the robbery, and to the statements by these two men after the robbery and murder had been committed.

Later that day, Simpson voluntarily went to a local police station and signed a written statement in which he reiterated their story: he and Washington had found Morris's body after becoming suspicious when they saw two men run from an alley next to the apartment building.

Within a few hours Simpson had changed his story. In addition, Simpson submitted to a "benzidine test." That test showed the presence of blood on his hands. Simpson was then taken into custody.

Some hours later, Simpson gave the police a second written statement. In that statement he confessed to his participation in the crimes. His confession was given after he was read his Miranda rights. The trial judge found, and the SJC affirmed, that the confession was given voluntarily. On October 31, 1974, a Massachusetts jury convicted Simpson of first degree murder, armed robbery, and breaking and entering.

On March 21, 1975, Simpson filed the first of six motions for a new trial. The motion was denied, and Simpson appealed both his conviction and the denial of this motion. He did not challenge the reasonable doubt jury instructions in either appeal. ¹ The SJC heard the appeal of both rulings under the authority of Mass. Gen. Laws ch. 278, §§ 33A-33G, and affirmed them both on April 9, 1976. See Simpson, 345 N.E.2d at 905.

Simpson launched his first assault on the reasonable doubt instructions in his third new trial motion, filed on April 25, 1988. In that motion, Simpson challenged the "moral certainty" language and the judge's comparison of reasonable doubt to the certainty that attends important decisions in the jurors' lives.

The motion was denied on waiver grounds, but Simpson did not seek leave to appeal from the single "gatekeeper Justice" of the SJC, pursuant to Mass. Gen. Laws ch. 278, § 33E. However, Simpson raised the same jury instruction objections in his fourth motion for a new trial, filed on November 3, 1988. That motion, too, was denied on waiver grounds; this time Simpson sought leave to appeal. On October 15, 1990, a gatekeeper Justice denied Simpson's motion for leave to appeal, stating that he was "persuaded by the arguments in the Commonwealth's opposition memorandum that the defendant ha[d] not demonstrated that any of the issues which he ... [sought] to raise [were] new or substantial." Commonwealth v. Simpson, No. 90-274 (SJC for Suffolk County, Oct. 15, 1990).

In his fifth motion for a new trial, Simpson raised the same objections, this time under an ineffective assistance of counsel rubric, and was again rebuffed by the Massachusetts trial court. He did not seek leave under § 33E to appeal. Finally, approximately a year and a half later, Simpson filed a sixth motion for a new trial, dated June 28, 1994, in which he reiterated the previous objections and also challenged the "serious unanswered questions" language. A superior court judge denied the motion on grounds that the issues should have been raised on direct appeal and noted that the denials of his previous post-conviction attacks on the instructions rested on waiver grounds. On October 30, 1997, a gatekeeper Justice denied Simpson's § 33E application for leave to appeal.

II

In April 1997, Simpson filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 2254. After acknowledging that "[a] petitioner's procedural default in state court is a 'typical' example" of an independent and adequate state law ground that could bar habeas review in a federal court, the district court considered whether Simpson had, in fact, procedurally defaulted by failing to challenge the reasonable doubt instructions in his first appeal or by failing to persuade the gatekeeper Justice that he had raised a new and substantial claim. ² Simpson v. Matesanz, 29 F.Supp.2d 11, 14 (D.Mass.1998).

Reasoning that "[f]ailure to appear meritorious to a gatekeeper cannot plausibly be put on a par with failure to take certain standard steps, such as preserving issues by raising them on appeal," the court found that "failure to get past the gatekeeper does not by itself block federal habeas review unless the single Justice clearly bases his denial of leave to appeal on a procedural bar." Id. at 15 (citing Little v. Murphy, No. CIV.A. 95-10889-RGS, 1998 WL 704415, at * 2 (D.Mass. May 21, 1998)).

The district court also rejected the argument that Simpson's failure to raise the objection in his first appeal, in contravention of the Commonwealth's contemporaneous objection rule, constituted a procedural default. The court offered two reasons for its conclusion. First, it found that in Commonwealth v. Gagliardi, 418 Mass. 562, 638...