Powell v. Tompkins

• Decision Date: 15 April 2015
• Docket Number: No. 13–1310.,13–1310.
• Citation: 783 F.3d 332
• Parties: Aaron POWELL, Petitioner, Appellant, v. Steven TOMPKINS, Sheriff, Suffolk County, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

783 F.3d 332

Aaron POWELL, Petitioner, Appellant

v.Steven TOMPKINS, Sheriff, Suffolk County, Respondent, Appellee.

No. 13–1310.

United States Court of Appeals, First Circuit.

April 15, 2015.

K. Hayne Barnwell, by appointment of the court, for appellant.

Susanne G. Reardon, Assistant Attorney General, Criminal Bureau, Appeals Division, with whom Martha Coakley, Attorney General, was on brief for appellee.

Before TORRUELLA, HOWARD and THOMPSON, Circuit Judges.

Opinion

HOWARD, Circuit Judge.

Petitioner Aaron Powell was convicted on several state charges including unlawful possession of a loaded firearm, see Mass. Gen. Laws ch. 269, §§ 10(a), (h), (n), and his convictions were affirmed by the Massachusetts Supreme Judicial Court (SJC), see Commonwealth v. Powell, 459 Mass. 572, 946 N.E.2d 114 (2011). Powell then sought federal habeas relief pursuant to 28 U.S.C. § 2254, which was denied by the district court. In this appeal from that denial, he primarily protests the state criminal procedure requirement that a defendant accused of unlawful possession of a firearm bear the burden of producing evidence of a proper license as an affirmative defense. The absence of such proffered evidence gives rise to a presumption during trial that the defendant did not have a valid license; but, if produced, the prosecution has the burden of proving beyond a reasonable doubt that the defense does not exist. See Mass. Gen. Laws ch. 278, § 7 ; Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977). The SJC concluded that this state procedure comports with federal due process, and we hold that Powell has failed to establish that the state court decision conflicts with clearly established Supreme Court precedent. In addition, Powell advances Second Amendment claims, and a related Equal Protection claim. We hold that these claims also provide no basis for disturbing his state convictions. Finally, we deem waived his Sixth Amendment ineffective assistance of counsel claim. Accordingly, we affirm the district court's denial of his petition for § 2254 relief.

I. Background

We are required to presume that the SJC's factual rendition is correct and, therefore, we draw our description of the facts from that opinion. 28 U.S.C. § 2254(e) ; see Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir.2002).

Late one night in August 2008, two Boston police officers were on routine patrol in Roxbury when they noticed a brooding crowd at an intersection. The two dozen or so youths appeared to be aligned into three groups, with two groups on one side of the street and the third on the other side of the street. People were yelling and pointing back and forth at one another, but the crowd grew quiet as the officers drove by in their unmarked cruiser. One officer noticed a young man (later identified as Powell) who was walking nearby but set apart from the groups. Powell looked away when he saw the officers and moved his hands toward his waist in a manner which the officers viewed as consistent with concealing or retrieving contraband. Powell walked past the crowd and then began to run.

A foot chase ensued, and while en route, one officer saw Powell clutching something in his right hand. The officer next saw the handle of a gun in Powell's hand and twice commanded Powell to drop it. Powell continued to flee, and when attempting to climb a fence to evade the officers, he dropped a .22 caliber revolver to the ground. Powell then ran along the fence and into a darkened garage. He soon emerged with both hands clenched in fists, charging at one of the officers. The officer moved out of the way, Powell knocked into the second officer, and the foot chase continued down the street. The police soon caught up with Powell and arrested him. The loaded revolver was retrieved from where Powell had attempted to scale the fence. Without first issuing Miranda warnings, an officer asked him why he ran and whether he had a license for the firearm. Powell replied that he did not have a firearm.

The Commonwealth of Massachusetts charged Powell with several state crimes. He waived his right to a jury trial and, after a bench proceeding, was convicted of publicly carrying a firearm without a license, Mass. Gen. Laws ch. 269, § 10(a) ; doing so while the firearm was loaded, id. ch. 269, § 10(n) ; and possessing ammunition without a permit, id. ch. 269, § 10(h). He was sentenced to eighteen months of incarceration and three years of probation for the firearms and ammunition offenses.¹

While Powell's appeal to the state intermediate appeals court was pending, the United States Supreme Court decided McDonald v. City of Chicago, in which it held that the Second Amendment right to keep and bear arms applies to the states through the Fourteenth Amendment. 561 U.S. 742, 130 S.Ct. 3020, 3042, 177 L.Ed.2d 894 (2010). On its own motion, the case was transferred to the SJC, which affirmed Powell's convictions. See Powell, 946 N.E.2d at 118.

Pertinent here, the SJC rejected Powell's due process challenge to the Commonwealth's failure to present evidence that he lacked a firearms license. Id. at 124. Following its own precedent, the court held that the accused has the burden of producing evidence of a license as an affirmative defense in prosecutions for firearms possession and carrying offenses. Id. It also held that this state procedure is in accord with due process because the burden of proving an element of the crime did not shift to the defendant. Id. (relying on Jones, 361 N.E.2d 1308 ).

In addition, the SJC declined to assess the merits of Powell's claim that state law age restrictions on young adults' ability to obtain a license to publicly carry a firearm violate the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. Id. at 128. The state court viewed his age-based challenges as procedurally barred, essentially because Powell did not demonstrate that his lack of licensure was based on the minimum age requirement alone. Id. at 129–30. The SJC excused Powell's failure to raise his Second Amendment arguments in a pretrial motion because the issues were not available to him until after McDonald was decided. Id. at 127.

Lastly, the SJC rejected Powell's ineffective assistance of counsel claim, which was based on trial counsel's failure to file a motion to suppress Powell's pre-Miranda statement to the police denying that he had possessed a gun. The court concluded that any allegedly deficient legal representation caused Powell no prejudice due to other evidence of his consciousness of guilt. Id. at 125.

Powell later pursued a § 2254 habeas petition in federal district court, which was denied. Powell v. Tompkins, 926 F.Supp.2d 367 (D.Mass.2013). We consider the merits of the federal habeas petition de novo. See Pena v. Dickhaut, 736 F.3d 600, 603 (1st Cir.2013).

II. Discussion

Securing relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is an onerous task. See Pub.L. No. 104–132, § 104, 110 Stat. 1214, 1218–1219, codified at 28 U.S.C. § 2254 ; see also White v. Woodall, ––– U.S. ––––, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) ; Burt v. Titlow, ––– U.S. ––––, 134 S.Ct. 10, 15–16, 187 L.Ed.2d 348 (2013). Powell may secure relief for claims addressed in his direct appeal if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” the Supreme Court, 28 U.S.C. § 2254(d)(1). Only legal errors that are objectively unreasonable warrant relief. See Mitchell v. Esparza, 540 U.S. 12, 15–16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (expounding on “contrary to” prong); Titlow, 134 S.Ct. at 16 (expounding on “unreasonable application” prong); see also Woodall, 134 S.Ct. at 1702, 1706 (emphasizing that “even ‘clear error’ will not suffice” and rejecting an “unreasonable-refusal-to-extendrule” that was discussed in earlier AEDPA cases).

The Supreme Court's precedent, not that of the circuit courts, serves as the benchmark for securing § 2254 relief. Lopez v. Smith, –––U.S. ––––, 135 S.Ct. 1, 3, 190 L.Ed.2d 1 (2014) (per curiam); see Esparza, 540 U.S. at 16, 124 S.Ct. 7 (noting that a state court need not even be aware of Supreme Court precedents, “so long as neither the reasoning nor the result of the state-court decision contradicts them”). Here, Powell largely rests on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) in support of his Due Process claim, and on District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) for his Second Amendment and related Equal Protection claims.

A. Due Process

It is bedrock that the Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship, 397 U.S. at 364, 90 S.Ct. 1068. Powell argues that under this command, “a state may not be relieved of proving beyond a reasonable doubt the elements of lack of a firearms license and registration card by imposing a so-called ‘minimal’ burden of production upon the defendant.” Writ large, however, his claim primarily rests on the premise that absence of licensure is an element of the state criminal offense, a position that runs contrary to SJC precedent as exposited in Jones and its progeny. Undeterred, he relies on the text of the operative state statutes, select state case law, and language in his criminal complaint to support his contention that the proper due process analysis must account for absence of license as an operative element of the charged firearms crimes.

To determine the appropriate lens that governs Powell's due process claim, we begin, as we must, with Massachusetts law. See, e.g., Medina v. California, 505 U.S. 437, 445–46, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (addressing state law affirmative defenses); County...