Gordon v. Vose

• Decision Date: 03 January 1995
• Docket Number: Civ. A. No. 94-0186ML.
• Citation: 879 F. Supp. 179
• Parties: David N. GORDON, Jr. v. George A. VOSE, Jr.
• Court: U.S. District Court — District of Rhode Island

879 F. Supp. 179

David N. GORDON, Jr. v. George A. VOSE, Jr.

Civ. A. No. 94-0186ML.

United States District Court, D. Rhode Island.

January 3, 1995.

David N. Gordon, Jr., Johnston, R.I., pro se.

Department of Atty. Gen., State of R.I. by Annie Goldberg, Asst. Atty. Gen., Providence, RI, for respondent.

ORDER

LISI, District Judge.

The Findings and Recommendation of United States Magistrate Judge Robert W. Lovegreen filed on December 7, 1994 in the above-captioned matter is accepted pursuant to Title 28 United States Code § 636(b)(1).

REPORT AND RECOMMENDATION

LOVEGREEN, United States Magistrate Judge.

Before me is a pro se petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254. I have reviewed the petition and the respondent's answer thereto and have determined that an evidentiary hearing is not required. Rules 4 and 8, Rules Governing Section 2254 Cases in the United States District Courts; Dziurgot v. Luther, 897 F.2d 1222 (1st Cir.1990). Based upon the following analysis, I recommend that the petition be denied and dismissed.

Background

This § 2254 petition, the second such petition filed in this Court, was filed on April 25, 1994. On May 13, 1994, I recommended the petition be denied, because petitioner had not exhausted his state remedies, as there was an appeal (petitioner's third) pending before the Rhode Island Supreme Court. Petitioner failed to tell me that his appeal had been decided by that Court on March 22, 1994, and my recommendation was correctly rejected by the district court. Thereafter, on November 16, 1994, this petition was referred to me for preliminary review, findings and recommended disposition. 28 U.S.C. § 636(b)(1)(B).

On September 30, 1983, following a retrial (a mistrial was declared during the first trial), petitioner was convicted of first degree arson and conspiracy to commit arson. The fire occurred on June 22, 1981 and destroyed Turilli's Furniture Company in Warwick, Rhode Island. Subsequently, the trial justice imposed a sentence of 50 years for the arson and 10 years for the conspiracy to be served consecutively. In State v. Gordon, 508 A.2d 1339 (R.I.1986), the Rhode Island Supreme Court denied and dismissed petitioner's first appeal challenging the merits of his conviction. Specifically, plaintiff appealed on the following issues: (1) the applicability of the double jeopardy bar; (2) the admissibility of certain evidence; (3) the trial justice's denial of petitioner's motion for judgment of acquittal on the conspiracy count; and (4) the trial justice's definition of reasonable doubt in his jury charge.

Thereafter, petitioner filed a motion to reduce sentence which was denied by the trial justice. This denial was affirmed. State v. Gordon, 539 A.2d 528 (R.I.1988).

Subsequently, petitioner filed for postconviction relief which was denied by the trial justice. On appeal, the Rhode Island Supreme Court affirmed the denial. Gordon v. State, 639 A.2d 56 (R.I.1994). While this appeal was pending, petitioner filed his first petition for writ of habeas corpus in this Court. Gordon v. Vose, C.A. No. 93-0513T (D.R.I. filed Sept. 20, 1993). That petition was dismissed on the basis that petitioner had not exhausted his state remedies. Thereafter, this second § 2254 petition was filed raising as grounds: (1) the trial justice constructively amended Count 2 of the indictment in violation of petitioner's constitutional rights under the Fifth and Sixth Amendments to the United States Constitution; (2) there was ineffective assistance of counsel in violation of petitioner's constitutional rights under the Sixth Amendment to the United States Constitution when counsel did not raise on appeal to the Rhode Island Supreme Court the constructive amendment issue; and (3) petitioner's constitutional rights under the First Amendment to the United States Constitution were violated when the trial justice, both at the sentencing and at the hearing on the motion to reduce the sentence, quoted from the Bible thereby exhibiting religious bias.

Discussion

A motion under 28 U.S.C. § 2254 is a substitute for habeas corpus. The basic scope of habeas corpus is prescribed by 28 U.S.C. § 2241(c) which provides that the "writ of habeas corpus shall not extend to a prisoner unless ... he is in custody in violation of the constitution." Section 2254 deals specifically with state custody, providing that habeas corpus shall apply only in behalf of a person in custody pursuant to a judgment of a state court.

Review under Section 2254 is limited to searching for Constitutional error and a federal court must apply federal constitutional law in habeas corpus proceedings. Grieco v. Meachum, 533 F.2d 713, 716 (1st Cir.), cert. denied sub. nom. Cassesso v. Meachum, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976). Federal courts have broad discretionary powers when acting on habeas petitions. Indeed, 28 U.S.C. § 2243 provides that "the court shall summarily hear and determine the facts, and dispose of the matter as law and justice requires." See Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).

A. Constructive Amendment of the Indictment.

The essential question here is whether petitioner was convicted of an offense not charged in the indictment. Obviously, if he was, his conviction should be reversed. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

In Stirone, petitioner was indicted for violation of the Hobbs Act, 18 U.S.C. § 1951. The indictment charged that certain supplies and materials (sand) were caused to move in interstate commerce into Pennsylvania and petitioner did obstruct, delay and affect interstate commerce by extortion induced by fear and threats. Id. at 213, 80 S.Ct. at 271. The sand was to be used to make concrete which was to be used in building a steel plant in Pennsylvania. At trial, the court also admitted evidence of the affect on interstate commerce of steel shipments from the steel plant to be built in part with the concrete made from the imported sand. The trial judge instructed the jury that the interstate commerce aspect of the case could be satisfied by finding that sand used to make concrete had been shipped into Pennsylvania from another state or such concrete was used to construct a steel mill which would manufacture steel to be shipped from Pennsylvania into another state. Id. at 214, 80 S.Ct. at 271-72. The indictment was constructively amended because the indictment charged a violation of the Hobbs Act only with regard to the importation of sand to make concrete and not with the exportation of steel manufactured by the steel plant built in part with the concrete.

The United States Supreme Court reversed petitioner's conviction stating it was error to so instruct the jury. Id. at 215, 80 S.Ct. at 272. This was more than an insignificant variance between the indictment and the proof and, therefore, more than harmless error. Since the charge was a felony, the Fifth Amendment requires that prosecution be initiated by indictment. Id. at 215, 80 S.Ct. at 272.

It has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.

Id. at 215-16, 80 S.Ct. at 272.

The Court stated that "a court cannot permit a defendant to be tried on charges that are not made in the indictment against him." Id. at 217, 80 S.Ct. at 273. Because the variation between the indictment and the proof is more than trivial, useless or innocuous, petitioner's substantial right to be tried only on charges returned by a grand jury has been violated. Id.

In United States v. Kelly, 722 F.2d 873 (1st Cir.1983), cert. denied, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984), the Court stated:

To prevail on the theory that there has been a constructive amendment to the indictment, appellant must show that his fifth and sixth amendment rights have been infringed. The fifth amendment requires that a defendant be tried only on a charge made by the grand jury. The sixth amendment, working in tandem with the fifth amendment, requires that the defendant "be informed of the nature and cause of the accusation."

These two constitutional provisions require that allegations and proof mirror each other. The rationale is clear: no person should be denied the right to thoroughly prepare his or her defense, and should not be subject to "another prosecution for the same offense."

Id. at 876 (citations omitted).

In United States v. Beeler, 587 F.2d 340 (6th Cir.1978), cert. denied, 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981), the Court stated:

The purposes underlying the rule against amendments and constructive amendments include notice to the defendant of the charges he will face at trial, notice to the court so that it may determine if the alleged facts are sufficient in law to support a conviction, prevention of further prosecution for the same offense, and finally, of "paramount importance," the assurance that a group of citizens independent of prosecutors or law enforcement officials have reviewed the allegations and determined that the case is worthy of being presented to a jury for a determination of the defendant's guilt or innocence.

Id. at 342.

The indictment returned against petitioner contained four (4) counts. Petitioner raised this issue of constructive amendment only as to Count 2 which states:

Count 2

That co-defendant and David N. Gordon, Jr., alias John Doe, both of Providence County, on or about the 22nd day of June, 1981, at Warwick, in the County of Kent, did knowingly cause, procure, aid, counsel, and create by means of fire, damage to the building located at 400 Warwick Avenue, Warwick, which was occupied and in use on June 22, 1981, and owned by TURILLI FURNITURE, INC., a Rhode Island Corporation, in violation of § 11-4-2 of the General Laws of Rhode Island, 1956, as amended (Reenactment of 1969).

At the...