Dickerson v. Latessa, 88-1764

• Decision Date: 11 January 1989
• Docket Number: No. 88-1764,88-1764
• Citation: 872 F.2d 1116
• Parties: Lewis H. DICKERSON, Petitioner, Appellant, v. Arthur LATESSA, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1116

872 F.2d 1116

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

No. 88-1764.

United States Court of Appeals, First Circuit.

Heard Jan. 11, 1989.

Decided April 25, 1989.

John P. Osler, Boston, Mass., Committee for Public Counsel Services, for petitioner, appellant.

Linda G. Katz, Asst. Atty. Gen., Crim. Bureau, with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for respondent, appellee.

Before CAMPBELL, Chief Judge, ALDRICH and TORRUELLA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Lewis H. Dickerson appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982).

Dickerson's petition challenges on equal protection grounds the so-called "gatekeeper" provision of Mass.Gen.Laws Ann. ch. 278, Sec. 33E (1981). Under that provision, a defendant like Dickerson who was convicted of a capital offense in a Massachusetts court is not entitled, following direct appeal, to appellate review of the denial of a post-conviction motion "unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court." Dickerson contrasts that provision with other Massachusetts laws affording to noncapital defendants an unrestricted right to seek appellate review of the denial of a post-conviction motion.

We hold that section 33E, when examined broadly in context of the special Massachusetts procedures for review in capital cases, does not deny Dickerson the equal protection of the laws. We consequently affirm the district court's denial of Dickerson's petition.

I. BACKGROUND

Under Massachusetts law, defendants convicted of capital offenses are treated differently from those convicted of noncapital offenses. ¹ A capital defendant is given the right to appeal from his conviction directly to the full bench of the Supreme Judicial Court ("SJC") where he receives plenary review "regardless of the absence of claim of error." ² Commonwealth v. Brown, 376 Mass. 156, 168, 380 N.E.2d 113, 120 (1978). Section 33E states in pertinent part:

In a capital case ... the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence.

Section 33E "consigns the facts as well as the law to [the SJC's] consideration, gives [the SJC] the power and duty exercised by a trial judge on a motion for new trial, and requires [the SJC] to consider the whole case broadly to determine whether there was any miscarriage of justice." Commonwealth v. Hurley, 391 Mass. 76, 81, 461 N.E.2d 754, 757 (1984) (citations omitted). On several reported occasions, the SJC sua sponte has addressed issues discovered during the court's plenary review under section 33E that the capital defendant overlooked. See, e.g., Commonwealth v. Repoza, 382 Mass. 119, 132, 414 N.E.2d 591, 599 (1980); Commonwealth v. Callahan, 380 Mass. 821, 822, 406 N.E.2d 385, 386 (1980).

In contrast, direct appellate review in noncapital cases is limited to issues raised on appeal and to claims of legal error which were preserved by objection at trial or which present a substantial risk of a miscarriage of justice. See Commonwealth v. Ely, 388 Mass. 69, 77-78, 444 N.E.2d 1276, 1281-82 (1983); Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3, 9 (1967).

The current dispute relates solely to the differences in the appellate review allowed for the denial of post-conviction motions. Section 33E provides in pertinent part:

If any motion [in a capital case] is filed in the superior court after [the filing of the rescript by the SJC], no appeal shall lie from the decision of [the superior court] upon such a motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court.

A capital defendant ought not be allowed to press an appeal where the issues raised in his post-conviction motion were or could have been raised at trial or on appeal. Commonwealth v. Ambers, 397 Mass. 705, 707-08, 493 N.E.2d 837, 839 (1986). "The statute requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available at the time of trial or appeal." Commonwealth v. Pisa, 384 Mass. 362, 365-66, 425 N.E.2d 290, 293 (1981). The determination of the gatekeeper judge under section 33E is unreviewable. Leaster v. Commonwealth, 385 Mass. 547, 548, 432 N.E.2d 708, 709 (1982).

Noncapital defendants, on the other hand, are allowed under Mass.R.Crim.P. 30(c)(8) an appeal as of right to the Appeals Court from the denial of a post-conviction motion, including motions that raise issues that could have been raised at trial but were not, although consideration of such issues is generally limited to determining whether there is a substantial risk of a miscarriage of justice. See, e.g., Reddick v. Commonwealth, 381 Mass. 398, 404, 409 N.E.2d 764, 769 (1980). Noncapital defendants may also petition for direct or further review by the SJC, Mass.R.App.P. 11, 27.1, and may also petition the Appeals Court for reconsideration. Mass.R.App.P. 27.

In September 1975 Dickerson was convicted in Suffolk Superior Court of first degree murder, armed robbery and unlawfully carrying a firearm. The SJC affirmed the conviction on direct appeal after reviewing the entire record pursuant to section 33E. Commonwealth v. Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977). Over two years later, Dickerson filed a motion for post-conviction relief in state superior court, challenging the constitutionality of the trial judge's jury instructions. The superior court denied the motion. Dickerson sought leave under section 33E from a single justice of the SJC to appeal from the denial of the motion to the full court. The justice denied Dickerson leave to appeal, finding that his post-conviction claims did not present "a new and substantial question." Dickerson subsequently brought an action for declaratory relief in state court, challenging the constitutionality of the gatekeeper provision of section 33E. ³ The SJC rejected this challenge and upheld the statute. Dickerson v. Attorney General, 396 Mass. 740, 488 N.E.2d 757 (1986). Dickerson then filed this habeas corpus petition in federal court. The district court denied the petition. Dickerson v. Latessa, 688 F.Supp. 797 (D.Mass.1988). Dickerson appeals from this ruling.

II. DISCUSSION

The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." Under this clause,

absent a classification interfering with the exercise of a fundamental right or operating to the peculiar disadvantage of a suspect class, see Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 [, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520] (1976), a state's conduct need only bear a reasonable relationship to some proper object. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [40 S.Ct. 560, 561, 64 L.Ed. 989] (1925).

Bauza v. Morales Carrion, 578 F.2d 447, 450 (1st Cir.1978). This deferential "rational basis test" applies, therefore, except when the legislative classification implicates a fundamental right or disadvantages a suspect class; strict judicial scrutiny is warranted in the latter two circumstances, and the challenged statute may then stand only if it advances a compelling governmental interest. See Maher v. Roe, 432 U.S. 464, 470, 97 S.Ct. 2376, 2380, 53 L.Ed.2d 484 (1977); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1287-1288, 36 L.Ed.2d 16 (1973).

We conclude that the "rational basis test" is the appropriate standard of review in this case. Dickerson does not and could not successfully contend that, as a person convicted of first degree murder, he is a member of a suspect class. See Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (capital defendants not a suspect class for equal protection purposes), cert. denied, --- U.S. ----, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987). Nor does the gatekeeper provision of section 33E interfere with the exercise of a fundamental right. The Supreme Court has held that a state is not constitutionally obliged to provide even a direct appeal for a criminal defendant. Ross v. Moffitt, 417 U.S. 600, 606, 94 S.Ct. 2437, 2441, 41 L.Ed.2d 341 (1974); McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). There can hardly be, therefore, a fundamental right to appellate review of a trial court's post-conviction rulings. Cf. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (no constitutional right to counsel in post-conviction proceeding); United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (no absolute right to free transcript in post-conviction appeal). In any case, section 33E does not deny Dickerson all opportunity for appellate review of post-conviction claims for relief. He may secure review of probably the most urgent category of such claims, namely, those that are "new and substantial." See Leaster v. Commonwealth, 385 Mass. 547, 550, 432 N.E.2d 708, 710 (1982) (single justice review under section 33E "will allow access to the full court in meaningful matters"). Section 33E is aimed at screening out frivolous and procedurally waived claims raised after the defendant was once afforded the enlarged...