Carrington v. Spenser

• Decision Date: 15 June 2018
• Docket Number: CIVIL ACTION NO. 14-13100-NMG
• Parties: KERR CARRINGTON, Petitioner, v. LUIS SPENSER, Respondent.
• Court: U.S. District Court — District of Massachusetts

KERR CARRINGTON, Petitioner, v. LUIS SPENSER, Respondent.

CIVIL ACTION NO. 14-13100-NMG

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 2, 2018

June 15, 2018

REPORT AND RECOMMENDATION ON HABEAS PETITION PURSUANT TO 28 U.S.C. § 2254

DEIN, U.S.M.J.

I. INTRODUCTION

The petitioner, Kerr Carrington, was convicted by a Suffolk County jury of various counts of identity fraud, larceny by false pretenses, attempted larceny by false pretenses, uttering and forgery.¹ He was subsequently found guilty of being a common and notorious thief. His convictions were affirmed in 2013 by the Massachusetts Appeals Court in an unpublished opinion. Commonwealth v. Carrington, 84 Mass. App. Ct. 1121, 997 N.E.2d 1222 (table), No. 11-P-2091, 2013 WL 6164468 (Nov. 25, 2013). The Massachusetts Supreme Judicial Court ("SJC") denied his application for leave to obtain further appellate review ("ALOFAR") without opinion.Commonwealth v. Carrington, 467 Mass. 1102, 3 N.E.3d 81 (2014) (table). He then filed the instant timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Following a ruling on "Respondent's Motion to Dismiss for Failure to Exhaust State Court Remedies," there is one claim remaining in the habeas petition, namely that the trial judge improperly allowed the Commonwealth to amend the indictment. See Docket Nos. 52, 53. Specifically, Carrington alleges that he was originally indicted under Mass. Gen. Laws ch. 267, § 10, which involves false notes, certificates or bills, but not checks. However, the Commonwealth was allowed to amend the caption of the indictment to specify Mass. Gen. Laws ch. 267, § 5, which penalizes the use of forged "writings," which includes checks, and provides for a longer penalty period. The Massachusetts Appeals Court rejected this claim of error. Carrington, 2013 WL 6164468, at *1-2.

For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the habeas petition be denied. As an initial matter, the petition alleges an error of state law, which is not cognizable in a habeas petition. Moreover, the habeas petition fails to allege conduct that violates Carrington's federal constitutional rights.

II. STATEMENT OF FACTS²

The facts relevant to the remaining habeas claim are as follows.

Background

According to the Commonwealth, Carrington "engaged in multiple incidents in which he acquired, or attempted to acquire, expensive electronic equipment (typically high-end cameras)from various vendors without payment. His schemes relied on forged checks and purchase orders, false identities and other subterfuges." Carrington, 2013 WL 6164468, at *1. After a jury trial, he was found guilty on 35 charges, and was sentenced to concurrent terms of imprisonment for eight years to eight years and one day on the larceny and uttering charges, and to two-and-one-half years imprisonment on the attempt charges. See ALOFAR (Docket No. 51) at 2-3. Carrington appealed to the Massachusetts Appeals Court. Id. at 3.

Amendment of the Indictment

One of the indictments issued against Carrington (number 41) was captioned "Uttering c. 267, § 10." SA 141. The body of the indictment provided that:

KERR CARRINGTON, on or about February 22, 2006, uttered or passed or tendered in payment as true a false check, in the amount of twenty thousand five hundred, ($20,500), knowing the same to be false, altered or forged with the intent to injure or defraud.

Id.

Mass. Gen. Laws ch. 267, § 10 is entitled "uttering, passing or tendering false, forged or counterfeited note, certificate, bill or traveller's check[.]" It provides for a penalty of "imprisonment in the state prison for not more than five years, or by a fine of not more than one thousand dollars and imprisonment in jail for not more than one year." Id. Section 10 does not cover checks. Commonwealth v. Green, 66 Mass. App. Ct. 901, 902, 845 N.E.2d 392, 394 (2006) (stating that a false check cannot be the basis for indictment or proof under ch. 267, § 10).

On January 4, 2011, the Commonwealth filed a motion to amend the indictment to change the caption to Gen. Laws ch. 267, § 5. SA 16 at Docket No. 28. The defendant objected and a hearing was held at the commencement of trial on March 30, 2011. SA 18, 48. Themotion was allowed. Id. Mass. Gen. Laws. Ch. 267, § 5 is entitled "[u]ttering false or forged records, deeds or other writings[.]" It is undisputed that this statute covers checks. See Commonwealth v. O'Connell, 438 Mass. 658, 663, 783 N.E.2d 417, 423 (2003). The penalty for a violation of § 5 is "imprisonment in the state prison for not more than ten years or in jail for not more than two years." Mass. Gen. Laws ch. 267, § 5.

The Appeal

After his conviction, Carrington challenged the amendment of the indictment on appeal. SA 48. He argued that the amendment violated Article 12 of the Massachusetts Declaration of Rights that "requires that no one may be convicted of a crime punishable by a term in the State prison without first being indicted for that crime by a grand jury." SA 53 (quoting Commonwealth v. Smith, 459 Mass. 538, 544, 946 N.E.2d 95, 101 (2011) (quoting Commonwealth v. Barbosa, 421 Mass. 547, 549, 658 N.E.2d 966, 968 (1995))). He also argued that the amendment violated Mass. R. Crim. P. 4(d), which grants a judge "discretion to allow an amendment of an indictment if the amendment is one of form, not substance, and if the amendment will 'not result in prejudice.'" SA 54-55 (quoting Commonwealth v. Roby, 462 Mass. 398, 403, 969 N.E.2d 142, 147-48 (2012) (additional Massachusetts case citations omitted)). Thus, Carrington argued that the amendment changed the substance of the charge, and prejudiced him by increasing the available penalty. SA 54-55. Carrington argued only issues of Massachusetts state and constitutional law. SA 52-56.

The Massachusetts Appeals Court rejected Carrington's arguments, finding the following facts and rulings:

The body of indictment 41 stated that the defendant "on or about February 22, 2006, uttered or passed or tendered in payment as true a false check, inthe amount of twenty thousand five hundred, ($20,500), knowing the same to be false, altered or forged with the intent to injure or defraud." Although the caption of the indictment—as it was presented to the grand jury—cited to G.L. c. 267, § 10, the body of the indictment does not make out a violation of that section, which is inapplicable to forged checks. See Commonwealth v. Green, 66 Mass. App. Ct. 901, 902 (2006). On January 4, 2011, the Commonwealth filed a motion to amend the caption of indictment 41 so that it referenced § 5 of c. 267, instead of § 10. Over the defendant's opposition, the trial judge allowed the amendment at the commencement of the trial on March 30, 2011.

As the defendant all but acknowledges, the allegations included in the body of indictment 41-which were never modified—make out a violation of G.L. c. 267, § 5, the charge for which the defendant was eventually convicted.^* Thus, the grand jury determined that there was probable cause that the defendant had committed all the essential elements of the offense for which he was convicted. Whether the charges were properly based on § 10 or § 5 is a question of law that was not within the grand jury's purview, and, in any event, where there is disharmony between the caption and the body of an indictment, "it is the language of the body [that] controls." Commonwealth v. McArthur, 55 Mass. App. Ct. 596, 598 (2002). The judge did not err in allowing an amendment to indictment 41 that served to conform the caption of the indictment to the violation set forth in the body.

^*An indictment need not track the exact language of a statute. See, e.g., Commonwealth v. Pearson, 77 Mass. App. Ct. 95, 98-99 (2010)

We acknowledge that there is some force to the defendant's assertion that, as a matter of fact, the Commonwealth originally may have intended to prosecute him under § 10, but then changed its mind (perhaps after appreciating that § 10 did not apply to forged checks).^** In this respect, the mistake in the caption may not have been the simple "clerical error" that the judge thought it to be. However, in the end, this distinction is of no moment unless the defendant can demonstrate that he relied on the Commonwealth's original theory of the case to his prejudice. Here, the defendant learned almost three months prior to trial that the Commonwealth intended to pursue the allegations set forth in indictment 41 pursuant to § 5, not § 10. Far from demonstrating any detrimental reliance, the defendant acknowledged at oral argument that his trial strategy would have been identical regardless of which of the two statutes the Commonwealth was seeking to prosecute him under.^*** Contrast Commonwealth v. Baker, 440 Mass. 519, 526-527 (2003) (reversing conviction based, in part, on fact that Commonwealth changed theories attrial, and defendant would have prepared his defense differently had he known this in advance).

^**Some of the specific text of the body of indictment 41 closely tracks that of § 10; by contrast, the text of the other indictments that reference § 5 closely track the language of that statute.

^***The fact that § 5 carries more severe sanctions than § 10 does not mean that the defendant was convicted of a felony for which he was not indicted, and, standing alone, does not establish that he was prejudiced by any change in the Commonwealth's strategy. Contrast Commonwealth v. Williams, 73 Mass. App. Ct. 833, 837 (2009) (judge erred by amending criminal complaint after trial in a way that both enhanced the sanctions that the defendant faced and added an element to the charged crime).

Carrington, 2013 WL 6164468, at *1-2.

The ALOFAR

In his application to the Massachusetts Supreme Judicial Court for leave to obtain further appellate review, Carrington added, for the first time, a reference to the federal constitution. Specifically, Carrington argued:

Mr. Carrington would

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