Furr v. Brady, 05-1159.

• Decision Date: 03 March 2006
• Docket Number: No. 05-1159.,05-1159.
• Citation: 440 F.3d 34
• Parties: William FURR, Petitioner, Appellant, v. Bernard BRADY, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

440 F.3d 34

William FURR, Petitioner, Appellant, v. Bernard BRADY, Respondent, Appellee.

No. 05-1159.

United States Court of Appeals, First Circuit.

Heard October 4, 2005.

Decided March 3, 2006.

Dennis Shedd, for appellant.

Daniel M. Lieber, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for appellee.

Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

CYR, Senior Circuit Judge.

Willie Furr appeals from the district court order which denied his petition for habeas corpus relief, 28 U.S.C. § 2254, which sought to set aside his state court conviction for possessing a firearm, receiving a firearm with an altered serial number, being an armed career criminal, and attempting to obstruct justice and to intimidate a witness. We affirm.

I BACKGROUND

Furr was arrested on November 3, 1999, outside Dorchester High School.¹ Upon their arrival at the scene, the police observed Furr run toward them holding his right side, then toss what appeared to be a gun, and yell to his nearby friend, Rahshjeem Benson: "Yo, Six, grab the gun." Furr told the police that he had been shot by an unknown person, who had already fled the scene; that is, by someone other than Benson. The police located and arrested Benson, who was found hiding between two nearby cars, and who pointed out to the police the firearm laying at his feet. The gun appeared to the police to be the one Furr had tossed away moments before.

In due course, Furr was arrested and charged in state juvenile court with possessing a firearm, Mass. Gen. Laws Ann. ch. 269, § 10(a), receiving a firearm bearing an altered serial number, id. § 11C, being an armed career criminal, id. § 10G(a),² and attempting to obstruct justice and intimidate a witness, Mass. Gen. Laws Ann. ch. 274, § 6; Mass. Gen. Laws Ann. ch. 268, § 13B. Benson provided a written statement to the police, stating that the firearm belonged to Furr, and that Furr had gotten rid of the gun and yelled to Benson to pick it up. While in prison pending trial, Furr sent an anonymous letter to Benson, stating that he had seen and was disappointed by Benson's written statement to the police, that Benson's statement was a lie, and that Benson should testify at trial that he and the police had concocted the untruthful statement. The Furr letter made veiled threats about harming Benson's mother and siblings. The letter was intercepted by the police before it reached Benson.

At trial, the prosecution introduced both the Benson statement to the police and Furr's threatening letter. Furr objected to the Benson statement, claiming that it was hearsay by a non-testifying witness (viz., Benson), and that its introduction would violate his rights under the Confrontation Clause. The court overruled the objection, on the ground that Benson's statement was not introduced to establish the truth of its contents (viz., that the gun belonged to Furr) on the firearm possession count, but rather for a legitimate non-hearsay purpose relating to the obstruction/intimidation count (viz., to establish that petitioner knew of Benson's statement and intended to intimidate him). The jury was instructed that it should consider the Benson statement only in relation to the obstruction count, and not the firearm-possession count. The jury found petitioner guilty on all counts.

The trial court decided the "armed career criminal" charge, without a jury (with petitioner's consent), and found him guilty based upon his prior juvenile adjudications. See supra note 2. After petitioner was sentenced to 8-12 years' imprisonment, he appealed to the state appellate court, which affirmed in due course, Commonwealth v. Furr, 58 Mass.App.Ct. 155, 788 N.E.2d 592, 596 (Mass.App.Ct.2003), and the Supreme Judicial Court denied the ensuing application for further appellate review.

In November 2003, the instant habeas petition was filed in federal district court, on the grounds that (i) the admission of the Benson statement violated Furr's rights under the Confrontation Clause; and (ii) the trial court ruling that his prior juvenile adjudications qualified as "convictions" for purposes of the armed career criminal statute was unforeseeable and therefore violated his federal due process right to receive fair and adequate warning that his conduct would expose him to criminal liability under that statute.

The magistrate judge issued a report and recommendation that the habeas petition be denied, which was adopted in toto by the district court, which subsequently granted a certificate of appealability as to both the confrontation clause and due process claims, which Furr now challenges on appeal.

II DISCUSSION

A. The Standard of Review

We review the denial of the habeas corpus petition de novo. See Phoenix v Matesanz, 189 F.3d 20, 24 (1st Cir.1999). Pursuant to the Antiterrorism and Effective Death Penalty Act, we may grant habeas relief only if the challenged state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law." 28 U.S.C. § 2254(d)(1). The "contrary to" criterion is not satisfied unless the state court "arrive[d] at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see Horton v. Allen, 370 F.3d 75, 80 (1st Cir.2004), cert. denied, 543 U.S. 1093, 125 S.Ct. 971, 160 L.Ed.2d 905 (2005). The "unreasonable application" criterion is satisfied where the state court "identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413, 120 S.Ct. 1495. As this is indeed a high hurdle, habeas relief will not lie, even though the state-court interpretation or application of federal law was erroneous, unless it is also shown to be objectively unreasonable. See Horton, 370 F.3d at 80.

B. The Confrontation Clause Claim

Furr initially contends that the admission of the Benson statement, absent any opportunity to cross-examine Benson, violated Furr's rights under the Confrontation Clause. He relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). The Bruton Court held that the government could not introduce a non-testifying codefendant's out-of-court statement at a joint trial which also inculpated defendant, even if the trial court instructed the jury that it should consider the codefendant's extrajudicial statement only as evidence of the codefendant's guilt, not the defendant's. Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620. The Court observed that, although juries normally are presumed to follow instructions, the Bruton situation created too great a risk that the jury either would not or could not segregate its reliance upon the inculpatory evidence only in relation to the codefendant, and consequently that avoidance of any such jury confusion was "vital" to the defendant. Id.

In Street, however, the State introduced a codefendant's written statement to rebut the defendant's contention that law enforcement officials had coerced his confession. Street contended that, prior to his confession, the sheriff had read the codefendant's statement to him, then forced Street to parrot the details of that statement in Street's own confession. Street, 471 U.S. at 411, 105 S.Ct. 2078. In order to rebut the defense theory that the Street confession was coerced in this way, the State introduced the codefendant's written statement to demonstrate how it differed in significant details from the Street confession. Id. at 411-12, 105 S.Ct. 2078. The trial court instructed the jury that the codefendant's statement could not be considered for the truth of the matters asserted (viz., Street's participation in the burglary and murder), but only to rebut the defense claim that Street had been coerced into parroting the codefendant's statement. Id. at 412, 105 S.Ct. 2078.

In upholding the admission in evidence of the written statement given by Street's codefendant, the Court distinguished Bruton on the ground that the codefendant's statement there was hearsay, in that it was introduced to prove the truth of the matters asserted (viz., codefendant's guilt) whereas the State's use of the codefendant statement against Street was not hearsay, in that it was introduced solely to enable the jury to compare the two confessions and to assess Street's contention that the sheriff had coerced him into parroting his codefendant's statement, rather than to prove that Street had participated in the burglary and murder. Id. at 413-14, 105 S.Ct. 2078. "The nonhearsay aspect of [the codefendant's] confession — not to establish what happened at the murder scene but what happened when [Street] confessed — raised no Confrontation Clause concerns." Id. at 414, 105 S.Ct. 2078.

The Court then observed that Street's case was similar to Bruton in one respect only: the jury might have disregarded the limiting instruction and used the codefendant statement for the improper purpose of inferring Street's participation in the burglary and murder. Id. In rejecting this prospect, the Court first re-emphasized the "crucial" presumption that juries normally follow their instructions. Id. at 415, 105 S.Ct. 2078. The Street confession also was crucial to the government's ability to establish his participation in the burglary and murder, and the Street allegation that his confession had been coerced (hence was inadmissible) could only be accurately evaluated if the jury were permitted to compare it with the codefendant's statement to determine what differences (if any) the two...