382 F.3d 1 (1st Cir. 2004), 03-2732, Gonzalez v. Justices of Municipal Court of Boston

Docket Nº:03-2732.
Citation:382 F.3d 1
Party Name:Jorge J. GONZALEZ, Petitioner, Appellant, v. The JUSTICES OF the MUNICIPAL COURT OF BOSTON et al., Respondents, Appellees.
Case Date:August 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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382 F.3d 1 (1st Cir. 2004)

Jorge J. GONZALEZ, Petitioner, Appellant,


The JUSTICES OF the MUNICIPAL COURT OF BOSTON et al., Respondents, Appellees.

No. 03-2732.

United States Court of Appeals, First Circuit

August 19, 2004

Heard June 8, 2004.

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Robert W. Hagopian, with whom James G. Pepe, Jr. was on brief, for appellant.

Cathryn A. Neaves, Assistant Attorney General, Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

Before SELYA, Circuit Judge, PORFILIO, [*] Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

Petitioner-appellant Jorge J. Gonzalez presently awaits trial in the Boston Municipal Court (the BMC) on state drug distribution charges. Gonzalez claims that this pending state prosecution places him twice in jeopardy for the same offense. On that basis, he seeks federal habeas relief. The district court dismissed his application, and he now appeals.

This is not the usual post-conviction habeas proceeding. Consequently, we must address a series of related questions, some of apparent first impression, about the nature of the habeas proceeding, its statutory underpinnings, and the applicable standard of review. Once those issues are resolved, our attention shifts to the merits of the petitioner's double jeopardy claim. Here too the circumstances are out of the ordinary: the case turns on whether a disposition labeled by the state trial judge as an acquittal should be regarded as such for purposes of the Double Jeopardy Clause despite having been characterized by the state supreme court as resulting from a "sham trial." Although the question is close, we answer it in the negative and, accordingly, affirm the district court's refusal to grant a writ of habeas corpus.


More than four years ago, the Commonwealth of Massachusetts charged the petitioner with (i) distribution of a Class A controlled substance (heroin) and (ii) trafficking in that substance within 1,000 feet of a school. See Mass. Gen. Laws ch. 94C, §§ 32, 32J. On May 1, 2000, a justice of the BMC held a pretrial conference, during which the Commonwealth agreed to provide the petitioner with evidence concerning drug analysis and school distance measurements. 1 Because the petitioner was on probation at the time of his arrest, the state judge scheduled both a probation

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surrender hearing and a trial on the merits for June 8, 2000.

On the morning of June 8, both sides reported that they were ready for trial. The probation surrender hearing ensued. After receiving into evidence drug analysis certificates and police testimony detailing the circumstances of the petitioner's arrest, the presiding judge determined that the Commonwealth had failed to prove a violation of the terms of the petitioner's probation.

The parties returned for the merits trial that afternoon. Before the trial began, the petitioner filed a motion in limine seeking the exclusion of all evidence concerning drug analysis and school distance measurements. He predicated this motion on the ground that the prosecution had not disclosed this evidence to the defense in a timely manner (i.e., as per the disclosure deadline fixed at the pretrial conference). The prosecutor offered to furnish the relevant data immediately. The judge responded that this offer was "not good enough" and granted the motion in limine.

This ruling effectively gutted the Commonwealth's case. In light of it, the prosecutor informed the court that she was no longer ready for trial. The judge announced that the case would nonetheless proceed as scheduled. See Commonwealth v. Super, 431 Mass. 492, 727 N.E.2d 1175, 1181 (2000) (concluding "that there is no requirement that the prosecution answer ready for trial as a condition precedent to commencing a criminal trial"). The prosecutor could have nol-prossed the case or attempted to file an interlocutory appeal, 2 but she took neither of these steps.

The petitioner waived his right to a jury trial, and the judge instructed the prosecutor to call her first witness. The prosecutor demurred, again explaining that she could not go forward because of the court's allowance of the motion in limine. Defense counsel then moved for a judgment of acquittal (in state court parlance, a required finding of not guilty). The prosecutor reiterated her objection to proceeding further and suggested that the court dismiss the case for noncompliant discovery. The trial judge promptly took the bull by the horns and interjected:

[I]n order for the motion for required finding of not guilty to be allowed, there has to be a witness called and a witness sworn in in this matter. Otherwise there is no jeopardy that attaches and this matter would be basically dismissal without prejudice at this point. So if counsel wishes to call a witness in this matter, that's up to counsel....

Defense counsel took the hint. She immediately called the petitioner's daughter to the witness stand. Although there is no suggestion in the record that the daughter had been a percipient witness to the events underlying the criminal complaints, this lack of knowledge proved not to be an impediment. The lawyer only asked the witness to state her name and to declare whether she knew the petitioner. After the witness replied in kind, 3 the lawyers

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eschewed any additional questioning. Neither side called any further witnesses, and the petitioner renewed his motion for a required finding of not guilty. The court allowed the motion over the prosecutor's vociferous objection.

The Commonwealth sought relief from the BMC's determinations pursuant to a state statute that grants the Massachusetts Supreme Judicial Court (the SJC) "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided." Mass. Gen. Laws ch. 211, § 3. The SJC accepted the Commonwealth's application and, on July 1, 2002, vacated both the exclusion order and the judgment. Commonwealth v. Gonzalez, 437 Mass. 276, 771 N.E.2d 134, 136 (2002) (Gonzalez I). In the SJC's view, the exclusion order was erroneous because no definitive date for disclosure had been specified; defense counsel had not exercised due diligence in endeavoring to obtain the evidence; there was no indication that the prosecution had acted in bad faith; and in all events, no prejudice had been shown. Id. at 138. The SJC further found that the effects of this "error [were] exacerbated by the judge's lightning rush to sanction the Commonwealth, and then immediately to call the case to trial, in an effort unjustly to deprive the Commonwealth of its right to pursue an interlocutory appeal." Id. On the constitutional issue, the SJC concluded that "[b]ecause there was no trial on the merits, and no risk of the defendant's conviction, jeopardy did not attach." Id. at 140. Characterizing the BMC proceeding as a "sham trial," id. at 142, the court vacated the judgment and remanded the case for further proceedings on the existing complaints.

Gonzalez unsuccessfully petitioned the United States Supreme Court for a writ of certiorari. Gonzalez v. Massachusetts, 538 U.S. 962, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003). He then repaired to the United States District Court for the District of Massachusetts. There he made three filings: a petition for a writ of habeas corpus based on an alleged double jeopardy violation, a motion to stay proceedings in the BMC, and a motion for injunctive relief pendente lite. He named as respondents the Justices of the BMC, the Massachusetts Attorney General, and the Suffolk County District Attorney (hereinafter collectively the Commonwealth). The district court issued an order temporarily blocking further prosecution of the state criminal charges. In due course, however, the court found the habeas petition wanting. Gonzalez v. Justices of Municipal Court, Civ.A. No. 03-10859, 2003 WL 22937727 (D.Mass. Nov.25, 2003) (Gonzalez II). The court discerned "no reason to quarrel" with the SJC's characterization of the original proceeding as a sham trial. Id. at *4. It specifically noted that there had been no presentation of evidence concerning any of the factual elements of the criminal charges and, thus, "there was no risk to the defendant that he would be found guilty." Id. Consequently, the district court not only refused to grant a writ of habeas corpus but also dissolved the stay that it previously had issued. Id. at *5.

The petitioner appealed to this court and sought a further stay of the state criminal proceedings. When the Commonwealth

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agreed to postpone any trial in the BMC until after the termination of this appeal, we denied the petitioner's request for a stay. 4 Briefing and oral argument followed.


As a preliminary point, we pause to ponder a pertinent puzzle posed by the procedural posture of the present proceeding. Federal courts are courts of limited jurisdiction. In this case, the petitioner originally premised the district court's jurisdiction on a smorgasbord of statutes, including 28 U.S.C. §§ 2241 and 2254. In time, he narrowed his jurisdictional claim to section 2241 (the general habeas provision). He reasoned that section 2241 was a suitable vehicle for redressing the perceived wrongs because that provision offers habeas relief to any person who "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c) (3). Conversely, he viewed section 2254--section 2241's more famous relative--as inapplicable because that statute requires a state habeas petitioner to be "in custody pursuant to the judgment of a State court," id. § 2254(a)--a description that does not fit his circumstances...

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