Dickerson v. Latessa

• Decision Date: 31 May 1988
• Docket Number: Civ. A. No. 87-0901-Y.
• Citation: Dickerson v. Latessa, 688 F.Supp. 797 (D. Mass. 1988)
• Court: U.S. District Court — District of Massachusetts
• Parties: Lewis H. DICKERSON, Petitioner, v. Arthur LATESSA, Respondent.

688 F. Supp. 797

Lewis H. DICKERSON, Petitioner, v. Arthur LATESSA, Respondent.

Civ. A. No. 87-0901-Y.

United States District Court, D. Massachusetts.

May 31, 1988.

John P. Osler, Committee for Public Counsel Services, Barry Barkow, Massachusetts Correctional Legal Services, Boston, Mass., for petitioner.

Linda Katz, Asst. Atty. Gen., Boston, Mass., for respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.

This matter is before the Court on the petition of Lewis H. Dickerson ("Dickerson") for habeas corpus. Dickerson asserts that Massachusetts denies equal protection to persons convicted of first degree murder by permitting a single justice to determine whether appellate review of their post-conviction claims is warranted, whereas others receive full bench review as of right.

I. Background

Dickerson was convicted of first degree murder in 1975, a conviction upheld by the Supreme Judicial Court in 1977. Commonwealth v. Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977). In 1980 Dickerson sought to challenge his conviction by a motion for new trial filed in the Suffolk County Superior Court. His motion was denied without a hearing. A single justice of the Supreme Judicial Court, acting pursuant to Mass.Gen.Laws ch. 278, sec. 33E, denied Dickerson leave to appeal on the ground that such appeal would not present a new and substantial question.

Dickerson next sought habeas corpus relief, challenging as a denial of due process and equal protection the "gate-keeper" provision of Mass.Gen.Laws ch. 278, sec. 33E —i.e., the provision that a single justice of the Supreme Judicial Court shall alone determine, after affirmance of a first degree murder conviction by the full bench of the Supreme Judicial Court, whether to allow further appellate consideration of subsequent post-conviction claims. Denied relief in the District Court, Dickerson appealed, but the Court of Appeals for the First Circuit upheld the dismissal of his petition on the ground that he had failed to exhaust his state remedies. Dickerson v. Walsh, 750 F.2d 150 (1st Cir.1984). Back in the courts of the Commonwealth, Dickerson commenced a declaratory judgment action against the Massachusetts Attorney General seeking to have Mass.Gen.Laws ch. 278, sec. 33E declared unconstitutional. In a short, straightforward opinion, the Supreme Judicial Court held Mass.Gen.Laws ch. 278, sec. 33E to the minimalist "rational basis" test, concluded that the statute met that test, and declared it constitutional. Dickerson v. Attorney General, 396 Mass. 740, 488 N.E.2d 757 (1986).

His state remedies exhausted, Dickerson returns to this Court and again presents his equal protection challenge to Mass.Gen. Laws ch. 278, sec. 33E. Upon reflection, this Court agrees with the Supreme Judicial Court of Massachusetts that, as applied to the particular facts of this case, Mass. Gen.Laws ch. 278, sec. 33E has not worked to deprive Dickerson of the equal protection of the laws. This Court, however, is not nearly as confident as the Supreme Judicial Court that the "rational basis" test is the appropriate standard to invoke in access to appellate review cases. Indeed, so counterintuitive is the Massachusetts statutory scheme—at least with respect to issues that the defendant could not have possibly raised in his first, plenary appeal —that this Court reaches a decision in accord with that of the Supreme Judicial Court only after considering whether Dickerson, in fact, presented any "new and substantial federal constitutional questions" to the single justice.

II. The Massachusetts Statutory Scheme

Dickerson argues that Massachusetts' treatment of post-conviction relief actions creates two classes of convicted persons that are treated differently in violation of the Fourteenth Amendment's Equal Protection Clause. Under Mass.Gen.Laws, ch. 278, sec. 33E, first degree murder cases are subject to special treatment on review. In the first instance, that treatment is highly favorable to defendants. Persons convicted of first degree murder can appeal their convictions directly to the Supreme Judicial Court and there receive plenary review, i.e., broad review of all aspects of the case whether or not specifically raised on appeal. All other convicted persons can appeal only to the Massachusetts Appeals Court, with Supreme Judicial Court review being granted rarely and in limited circumstances. See Mass.R.App.P. 11, 27.1 (1987). Moreover, for these defendants, review by either Massachusetts appellate court is limited to claims of legal error which were preserved by objection at trial or which present a substantial risk of a miscarriage of justice. Commonwealth v. Ely, 388 Mass. 69, 77-78, 444 N.E.2d 1276 (1983); Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967).

However, after these appeals are exhausted, the statutory scheme is considerably less advantageous to those convicted of first degree murder if they subsequently try to pursue post-conviction claims. Section 33E prohibits subsequent appellate review of a first degree murder conviction absent determination by a single justice that the appeal presents "a new¹ and substantial question which ought to be determined by the full court." Mass.Gen.Laws ch. 278, sec. 33E. The decision of the single justice to deny leave to appeal is itself unappealable. Leaster v. Commonwealth, 385 Mass. 547, 548, 432 N.E.2d 708 (1982). In contrast, Mass.R.Crim.P. 30(c)(8) affords all those convicted defendants not subject to Section 33E a subsequent appeal on the merits as of right to the Appeals Court. Under certain circumstances, such defendants may also appeal directly, or after the Appeals Court's ruling, to the Supreme Judicial Court.² Dickerson asserts that this less favorable treatment of first degree murder defendants with respect to appeals subsequent to the first, plenary review violates equal protection.

III. The Equal Protection Standard in the Access-to-Appeal Context

Over the past several decades, the Supreme Court has ruled unconstitutional as violative of the Equal Protection Clause numerous practices that limited the access of defendants to the appeals process. The typical case involved a requirement that an indigent criminal appellant pay for a transcript or a filing fee necessary for an appeal to a reviewing court. See, e.g., Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (per curiam) (1971); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) (per curiam); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed. 2d 39 (1961); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (per curiam); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).³

Although the Supreme Court has used the language of minimum rationality review in the two access-to-appeal cases cited by the Supreme Judicial Court in Dickerson v. Attorney General, 396 Mass. at 743, 488 N.E.2d 757, see Estelle v. Dorrough, 420 U.S. 534, 538, 95 S.Ct. 1173, 1176, 43 L.Ed.2d 377 (1975) (per curiam) (stating that "this Court in dealing with equal protection challenges to state regulation of the right of appeal in criminal cases ... applies the traditional rational-basis test"); Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966) (holding that "the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have `some relevance to the purpose for which the classification is made'") (citations omitted), the Supreme Court, in fact, appears to afford a scrutiny stricter than minimum rationality. For example, in the indigent access cases the government certainly has a legitimate interest in reducing the cost of operating its judicial system, see Ortwein v. Schwab, 410 U.S. 656, 660, 93 S.Ct. 1172, 1174, 35 L.Ed.2d 572 (1973); United States v. Kras, 409 U.S. 434, 449, 93 S.Ct. 631, 640, 34 L.Ed.2d 626 (1973), an interest that is rationally served by requiring defendants to pay for transcripts or filing fees. Yet the Supreme Court has uniformly overturned any law that restricts an indigent's ability to appeal.

This greater-than-minimum rationality standard is not explained by concern for discrimination against the indigent. Indeed, the Supreme Court has specifically declined to hold that indigents are a suspect class requiring strict scrutiny. See Maher v. Roe, 432 U.S. 464, 470-71, 97 S.Ct. 2376, 2380-81, 53 L.Ed.2d 484 (1977); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973).

Whether the standard is minimum rationality or a somewhat heightened scrutiny, the Massachusetts statute is subject to question because a wholesale refusal to entertain the subsequent post-conviction appeals of those convicted of first degree murder is not even minimally rational, at least with respect to matters that could not possibly have been raised during the first, plenary appeal.

Admittedly, some governmental goals are furthered by this statute which, as the Commonwealth argues, conserves judicial resources, encourages claims to be raised at the earliest possible opportunity,⁴ and provides finality in criminal litigation. See Commonwealth v. Pisa, 384 Mass. 362, 366-67, 425 N.E.2d 290 (1981). In addition, the Commonwealth argues that the plenary review provided by the statutory scheme makes reasonable the less thorough post-conviction review afforded first degree murder convicts because every facet of such cases will...